Preview
Superior Court of California F
Raymond L. Sandelman SBN 078020
Attorney at Law County of Butte
196 Cohasset Road, Suite 225 11/20/2020 L
Chico, CA 95926-2284
(530) 343-5090 / (530) 343-5091 (Fax)
E
D
Email:Raymond@sandelmanlaw.com
By
Kets DOPCEY uty|
Electronically FILED
Attorney for Wayne A. Cook, individually
And as Trustee of The Wayne A. Cook 1998
Family Trust Dated 12/29/98
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10} IN AND FOR THE COUNTY OF BUTTE
dl WAYNE A. COOK, TRUSTEE OF THE NO.: 20CV00905
WAYNE A. COOK 1998 FAMILY
12 TRUST DATED 12/29/98, NOTICE OF MOTION FOR ORDERS
DIRECTED TO JOHN DENTON,
13 Plaintiff, CONSERVATOR AND HIS COUNSEL (A)
14 DEEMING MATTERS ADMITTED,
(B) COMPELLING ANSWERS TO
15 INTERROGATORIES, © COMPELLING
RESPONSES TO DOCUMENT DEMANDS,
16 EDWARD F, NIDEROST, et. al., AND (D) FOR SANCTIONS;
17 Defendants. MEMORANDUM OF POINTS AND
AUTHORITIES
18 eS /
Attached Document: Declaration of Raymond L.
19 AND RELATED CROSS COMPLAINTS
Sandelman
20 eS /
Hearing Date: 12/16/2020
21 Hearing Time: 9:00 a.m.
Department: 1
22
Judge: Tamara Mosbarger
23 Date of Complaint: 4/22/2020
Trial Date: None Set
24,
25 TO JOHN DENTON, CONSERVATOR OF THE ESTATE OF EDWARD
F. NIDEROST
26 AND HIS ATTORNEYS LELAND, MORRISSEY & KNOWLES LLP:
27 PLEASE TAKE NOTICE that on December 16, 2020 at'9:00 a.m., or as soon thereafter as
28 the matter may be heard, in Department 1 of the above-entitled court, located at 1775 Concord
1
NOTICE OF MOTION FOR ORDERS (A) DEEMING MATTERS ADMITTED,
(B) COMPELLING ANSWERS TO
INTERROGATORIES, (C) COMPELLING RESPONSES TO DOCUMENT. DEMAND
S, AND (D) FOR SANCTIONS,
Avenue, Chico, California, Wayne Cook, Trustee of The Wayne A. Cook 1998 Family Trust Dated
12/29/98 (hereafter referred to as “Wayne Cook, Trustee”) will move the court for orders (a)
deeming that the truth of matters specified in request for admissions be deemed admitted, (b)
compelling John Denton, Conservator of the Estate of Edward F. Niderost (hereafter referred to as
“John Denton, Conservator”) to answer two sets of form interrogatories propounded by Wayne
Cook, Trustee, and (c) compelling John Denton, Conservator to serve a verified responses to two
sets of document demands propounded by Wayne Cook, Trustee. Wayne Cook, Trustee will further
move the court for an order that John Denton, Conservator and his attorneys Leland, Morrissey &
Knowles LLP, jointly and severally pay $720.00 as reasonable costs and attorney's fees incurred in
10 this proceeding. This motion is made on the grounds that the discovery requests are relevant to the
Bo
ae 11 subject matter of this action, and that no responses to the discovery have been received.
sé
oe
This motion
ga 12 is made on the further ground that John Denton, Conservator and his attorneys Leland, Morrissey
Bz36 eA
ain as 13 & Knowles LLP have committed acts of misuse of the discovery process by failing to respond to
as
weae
ZEL
age
Zo3S 14 authorized methods of discovery.
B2ag
ge
BESa
Sa
Sg
Za 15 The motion is based on this notice, the pleadings, records and files in this action, the attached
be
gs 16 Memorandum of Points and Authorities, and the supporting Declaration of Raymond L. Sandelman.
17 The Court follows the tentative ruling procedure set forth in California Rules of Court Rule
18 3.1308 subdivision (a)(1): tentative rulings on law and motion matters will be available on the
19 Court’s website at www. buttecourt.ca.gov and by telephone at (530) 532-7022 by 3:00 p.m. on the
20 court day preceding the hearing.
21
22
Dated: Nyvrahes 20 2000 SRL
Raymond L. Sandelman
23 Attorney for Wayne Cook, Trustee,
Individually and as Successor Trustee
24
25
26
27
28
2
NOTICE OF MOTION FOR ORDERS (A) DEEMING MATTERS ADMITTED, (B) COMPELLING ANSWERS TO)
INTERROGATORIES, (C) COMPELLING RESPONSES TO DOCUMENT DEMANDS, AND (D) FOR SANCTIONS
MEMORANDUM OF POINTS AND AUTHORITIES
1. Statement Of Facts
This motion is similar, but different than a motion filed by Wayne Cook, Trustee of The
Wayne A. Cook 1998 Family Trust Dated 12/29/98 (hereafter referred to as “Wayne Cook,
Trustee”) against John Denton, successor trustee of The Edward F. Niderost Revocable Living Trust
Dated November 8, 1998.
Wayne Cook, Trustee propounded requests for admissions, form interrogatories, and
document demands to John Denton, Conservator of the Estate of Edward F. Niderost (hereafter
referred to as “John Denton, Conservator”) has not responded to requests for admissions, two sets
10 of form interrogatories, or two sets of document demands that were propounded by Wayne Cook,
ao
ae Il Trustee on September 2, 2020.
<é
oe
The discovery that is the subject of this motion are attached to the
gs
BQR 12 Declaration of Raymond L. Sandelman as Exhibits 1-5.
Beaa
Ho?
& 13
£2
B<28Zh 14 Weil & Brown California Practice Guide: Civil Procedure Before Trial (The Rutter
Se
Za Group 2018)
5S 15
ge
16 The matter of facts that should be deemed admitted are:
17 (a) At no time prior to February 29, 2020 did Edward F. Niderost LACK THE CAPACITY
18 TO MAKE A DECISION (As used in these requests for admissions “LACK THE CAPACITY
19 TO MAKE A DECISION” means a lacking of the capacity to make a decision as defined in Prob.
20 Code, § 811).
21 (b) At no time prior to February 29, 2020 did anyone make any FALSE
22 REPRESENTATION (As used in these requests for admissions “FALSE REPRESENTATION”
23 means the suggestion, as a fact, of that which is not true, by one who does not believe it to be true)
24 to Edward F. Niderost concerning the sale of the REAL PROPERTY (As used in these requests
25 for admissions “REAL PROPERTY” means the real property commonly known as 2185
26 Esplanade, Chico, Butte County, California).
27 (c) At no time prior to February 29, 2020 did anyone make any NEGLIGENT
28 REPRESENTATION (As used in these requests for admissions “NEGLIGENT
MEMORANDUM OF POINTS AND AUTHORITIES
REPRESENTATION” means the assertion, as a fact, of that which is not true, by one who has no
reasonable ground for believing it to be true) to Edward F. Niderost concerning the sale of the
REAL PROPERTY.
(d) At no time prior to February 29, 2020 did anyone SUPPRESS ANY FACT (As used in
these requests for admissions “SUPPRESS ANY FACT” means the suppression of a fact, by one
who is bound to disclose it) from Edward F. Niderost concerning the sale of the REAL
PROPERTY.
(e) At no time prior to February 29, 2020 did anyone make any FALSE
REPRESENTATION to Edward F. Niderost, Trustee of The Edward F. Niderost Revocable Living
ao 10 Trust Dated November 8, 1998 concerning the sale of the REAL PROPERTY.
ae
sé
Se
6s
il (f) At no time prior to February 29, 2020 did anyone make any NEGLIGENT
2oa
Bsa
Hog 12 REPRESENTATION to Edward F. Niderost, Trustee of The Edward F. Niderost Revocable Living
Loa
goun
A 13 of the County of Butte as Document No. 2020-0009600,” pledging the REAL PROPERTY as
Fa
225%Sa 14 collateral for payment of the FINE $500,000 NOTE. For convenience a copy is attached hereto
Sf
Za
5S
an 15 marked Exhibit 2).
ga
Ge
16 No meet and confer is required if there has been a failure to respond to discovery.
17 (1) [8:1371] No attempt to resolve informally required: Since this motion
deals with a failure to respond, rather than inadequate responses, no attempt to resolve
18 the matter informally (“meet and confer”) need be shown; see § 8:1/41 ff., 8:1160.
19 [See Demyer v. Costa Mesa Mobile Home Estates (1995) 36 CA4th 393, 395, 42 CR2d
260, 261, fn. 4 (citing text) (disapproved on other grounds in Wilcox v. Birtwhistle,
20 supra, 21 C4th at 983, 90 CR2d at 267, fn. 12); St. Mary v. Sup.Ct. (Schellenberg)
(2014) 223 CA4th 762, 777-778, 167 CR3d 517, 529-530 (citing text)]
21
Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter
22
Group 2020)
23
3. The Court Must Order John Denton, Conservator His Attorney To Pay
24 Reasonable Attorney's Fees For Failing To Respond To The Discovery Process
25 Code of Civil Procedure section 2033.280 subdivision (c), supra provides that an award of
26 attorney’s fees as sanctions in a motion where a party has failed to respond to requests for admissions
27 is mandatory.
28 //1
MEMORANDUM OF POINTS AND AUTHORITIES
(5) [8:1376] Monetary sanction also mandatory: Although delayed responses
may defeat a motion to compel, they will not avoid monetary sanctions. Regardless of
the reason for the delay in responding, it is mandatory that a monetary sanction be
imposed on the party or attorney, or both, whose failure to serve a timely response
necessitated the filing of the deemed-admitted motion. [CCP § 2033.280(c)]
(a) [8:1377] Comment: This is the only place in the Discovery Act where
sanctions for delay are mandatory. The purpose is to provide incentive to timely
respond to RFAs: i.e., no excuses accepted.
Weil & Brown California Practice Guide: Civil Procedure Before Trial (The Rutter
Group 2018)
John Denton, Conservator of the Estate of Edward F. Niderost and his attorneys Leland,
Morrissey & Knowles LLP have committed a misuse of the discovery process by failing to timely
go 10 respond to the request for admissions. Wayne Cook, Trustee requests sanctions in the sum of
ag
<é
oe 11 $720.00 for bringing this motion to deem matters admitted. The attached Declaration of Raymond
ae gs
ga
BsEa
B30 12 L. Sandelman sets forth the factual basis for the request for sanctions.
2a0n
ae
AR
wees
ZEL 13
BS5
ZS
4, The Court May Compel Answers To Interrogatories
6e 28
Beam 14 And Shall Order The Responding Party To Pay Reasonable
Se
aa Attorney’s Fees Unless The Responding Party Can Demonstrate
ge 15 Substantial Justification For Failing To Respond To The Discovery
2a
ge
16 John Denton, Conservator has failed to answer form interrogatories propounded by Wayne
17 Cook, Trustee. Code of Civil Procedure section 2030.290 authorizes a propounding party to obtain
18 an order compelling answers to interrogatories. The statute provides in part that:
19
If a party to whom interrogatories are directed fails to serve a timely response,
20 the following rules apply: . . .
(b) The party propounding the interrogatories may move for an order
21 compelling response to the interrogatories.
22 (c) The court shall impose a monetary sanction under Chapter 7 (commencing
with Section 2023.010) against any party, person, or attorney who unsuccessfully
23 makes or opposes a motion to compel a response to interrogatories, unless it finds that
the one subject to the sanction acted with substantial justification or that other
24 circumstances make the imposition of the sanction unjust. . .
25
No meet and confer is required if there has been a failure to respond to discovery.
26
(3) [8:1141] No attempt to resolve informally required: The moving party is
27 not required to show a “reasonable and good faith attempt” to resolve the matter
28 informally with opposing counsel before filing the motion. [CCP § 2030.290; Sinaiko
MEMORANDUM
OF POINTS AND AUTHORITIES
Healthcare Consulting, Inc. v. Pacific Healthcare Consultants, supra, 148 CA4th at
411, 55 CR3d at 766 (citing text); Leach v. Sup.Ct. (Markum), supra, 111 CA3d at
906, 169 CR at 44]
(a) [8:1142] Rationale: The failure to timely respond waives all objections to
the interrogatories ({ 8:1030); so there are no issues left to “resolve” with opposing
counsel. [See Leach v. Sup.Ct. (Markum), supra]
Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter
Group 2020)
Code of Civil Procedure section 2023.010 provides in part that:
Misuses of the discovery process include, but are not limited to, the following:
(d) Failing to respond or to submit to an authorized method of discovery. . .
(h) Making or opposing, unsuccessfully and without substantial justification, a
motion to compel or to limit discovery.
oe 10 John Denton, Conservator and his attorneys Leland, Morrissey & Knowles LLP have
ae
<é
és il committed misuses of the discovery process by failing to timely respond to the interrogatories.
gs
22a
BeeG
Rog 12 Unless John Denton, Conservator and Leland, Morrissey & Knowles LLP can demonstrate
eee
Bean
4,8
wee
Ze
gs~ 13 substantial justification for their conduct, an award of sanctions is mandatory. California Rules of
65
ge?
g< a5 14 Court Rule 3.1348 provides that sanctions may be awarded if a party does not oppose a discovery
za
Sf
ea
5¢
aa 15 motion or if responses are provided after the discovery motion is filed:
aa
ge
16
(a) Sanctions despite no opposition
17 The court may award sanctions under the Discovery Act in favor of a party
who files a motion to compel discovery, even though no opposition to the motion was
18 filed, or opposition to the motion was withdrawn, or the requested discovery was
provided to the moving party after the motion was filed.
19
20 Wayne Cook, Trustee request that the court order John Denton, Conservator and Leland,
21 Morrissey & Knowles LLP to jointly and severally pay the sum of $720.00 in attorney’s fees and
22 costs. The attached Declaration of Raymond L. Sandelman sets forth the factual basis for the request
23 for sanctions.
24 5. The Court May Compel Responses To A Demand For
25 Production Of Documents And Shall Order The Responding Party To
Pay Reasonable Attorney’s Fees Unless Responding Party Can Demonstrate
26 Substantial Justification For Failing To Respond To. The Discovery Process
27 John Denton, Conservator has failed to respond to document demands propounded by Wayne
28 Cook, Trustee. Code of Civil Procedure section 2031.300 provides in part that:
MEMORANDUM OF POINTS AND AUTHORITIES
If a party to whom an inspection demand is directed fails to serve a timely
response to it, the following rules apply: . . .
(b) The party making the demand may move for an order compelling response
to the inspection demand.
(c) Except as provided in subdivision (d), the court shall impose a monetary
sanction under Chapter 7 (commencing with Section 2023.010) against any party,
person, or attorney who unsuccessfully makes or opposes a motion to compel a
response to a demand for inspection, copying, testing, or sampling, unless it finds that
the one subject to the sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust. If a party then fails to obey
the order compelling a response, the court may make those orders that are just,
including the imposition of an issue sanction, an evidence sanction, or a terminating
sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in
addition to this sanction, the court may impose a monetary sanction under Chapter 7
(commencing with Section 2023.010).
Bo 10 (d)(1) Notwithstanding subdivision (c), absent exceptional circumstances, the
ag
<é
oe court shall not impose sanctions on a party or any attorney of a party for failure to
11
gs
225 provide electronically stored information that has been lost, damaged, altered, or
ao
o¢ 12 overwritten as a result of the routine, good faith operation of an electronic information
bam
aeanae
RAS system.
Hee
Ze
ges 13
gS
Sea No meet and confer is required if there has been a failure to respond to discovery.
g< an
Sa 14
$e
aa
5S
BR 15 (3) [8:1486] No “attempt to resolve informally” required: Likewise, for
Bo
failure to respond, the moving party need not attempt to resolve the matter outside
16
court before filing the motion. [See CCP § 2031.300]
17
Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter
18 Group 2020)
19 Code of Civil Procedure section 2023.010 provides in part that:
Misuses of the discovery process include, but are not limited to, the following:
20
(d) Failing to respond or to submit to an authorized method of discovery. . .
21 (h) Making or opposing, unsuccessfully and without substantial justification, a
motion to compel or to limit discovery.
22
23 John Denton, Conservator has committed a misuse of the discovery process by failing to
24 timely respond to the document demands, Unless John Denton, Conservator of the Estate of Edward
25 F. Niderost and his attorneys Leland, Morrissey & Knowles LLP can demonstrate substantial
26 justification for their conduct, an award of sanctions is mandatory. California Rules of Court Rule
27 3.1348 provides that sanctions may be awarded if a party does not oppose a discovery motion, or if
28 responses are provided after the discovery motion is filed:
MEMORANDUM
OF POINTS AND AUTHORITIES
(a) Sanctions despite no opposition
The court may award sanctions under the Discovery Act in favor of a party
who files a motion to compel discovery, even though no opposition to the motion was
filed, or opposition to the motion was withdrawn, or the requested discovery was
provided to the moving party after the motion was filed.
Wayne Cook, Trustee request that the court order John Denton, Conservator and his attorney
Leland, Morrissey & Knowles LLP to jointly and severally pay the sum of $720.00 in attorney’s
fees and costs. The attached Declaration of Raymond L. Sandelman sets forth the factual basis for
the request for sanctions.
6. Conclusion
a5
ag
10 The Court should (a) deem that the truth of matter and genuineness of document specified in
sé
oe 11 Wayne Cook, Trustee's Request for Admissions, be admitted, (b) compel answers to the two sets of
gs
225
BsEa
Ao? 12 form interrogatories, (c) compel.responses to the two sets of document demands, and (d) order John
iftepher Bjziee SS LG.,. fhe
(TYPE OR PRINT NAME) {SIGNATURE OF PARTY OR ATTORNEY) Page 1 of1
Fon roved for Optional Ust AMENDED REQUESTS FOR ADMISSION feof Civil Procedure,
ouncil of California CEB FEssential 56 04-05, 2098 010:2088.420, 2088 710
BiSE-220 Ihev. January T2008) Forms:
Cook
exniprr_
Attachment 1
(a) At no time prior to February 29, 2020 did Edward F. Niderost LACK THE
CAPACITY TO MAKE A DECISION (As used in these requests for admissions “LACK THE
CAPACITY TO MAKE A DECISION” means a lacking of the capacity to make a decision as
defined in Prob. Code, § 811).
(b) At no time prior to February 29, 2020 did anyone make any FALSE
REPRESENTATION (As used in these requests for admissions “FALSE REPRESENTATION”
means the suggestion, as a fact, of that which is not true, by one who does not believe it to be true)
to Edward F. Niderost concerning the sale of the REAL PROPERTY (As used in these requests
10 for admissions “REAL PROPERTY” means the real property commonly known as 2185
Bo
ag ll Esplanade, Chico, Butte County, California).
<é
oe
12 (c) At no time prior to February 29, 2020 did anyone make any NEGLIGENT
gs
BYR
B
SS
ge? 17
z< on
sa
$¢
aa
18
5S
B33
ge
19
20
21
22
23
24
25
26
27
28
5
AMENDED FORM INTERROGATORIES - LIMITED CIVIL CASES (ECONOMIC LITIGATION)
PROOF OF SERVICE
I, Wendy Hoy, declare as follows:
I am a resident of the County of Butte, State of California; I am over the age of 18 years and
not a party to this action; my business address is 196 Cohasset Road, Suite 225, Chico California
95926-2284, in said County and State. On today's date, I served the Amended Form Interrogatories-
Limited Civil Cases (Economic Litigation) Set Two - Amended on the following person(s) at the
following address(s), in the manner indicated below:
David R. Griffith, Esq. Sara M. Knowles, Esq.
Jameson E.P. Sheehan, Esq. Leland, Morrissey & Knowles LLP
Griffith Horn & Sheehan, LLP 1660 Humboldt Road, Suite 6
1530 Humboldt Road, Suite 3 Chico, CA 95928
Chico, CA 95928
10
Larry Gene Lushanko
11 Law Office of Larry G. Lushanko
Bo 1241 E Mission Rd.
ae 12
sé
os Fallbrook, CA 92028
gs
ga 13
So
Ao
geun
ARge 14 BY UNITED STATES MAIL enclosed the documents in a sealed envelope or package
Abas
ge~ x addressed to the persons at the addresses shown above and placed the envelope for collection
ZBeds
£as 15
and mailing, following our ordinary business practices. I am readily familiar with this
15) YOUR claim that performance of an agreement was excused.
ge a8
2aa8
Za
ga 16) 12. If YOUR answer to Interrogatory 50.4 of YOUR response to Form Interrogatories-
5S
Be
ga 17 General (Set One-Amended) propounded concurrently with these amended document demands, is
18 not an unqualified “no,” please produce each WRITING in YOUR possession or control supporting
19) YOUR claim that an agreement was terminated.
20} 13. If YOUR answer to Interrogatory 50.5 of YOUR response to Form Interrogatories-
21 General (Set One-Amended) propounded concurrently with these amended document demands,
is
22 not an unqualified “no,” please produce each WRITING in YOUR possession or control supporting
23 YOUR claim that an agreement is unenforceable.
24 14. If YOUR answer to Interrogatory 50.6 of YOUR response to Form Interrogatories-
25 General (Set One-Amended) propounded concurrently with these amended document demands, is
26 not an unqualified “no,” please produce each WRITING in YOUR possession or control supporting
27 YOUR claim that an agreement is ambiguous.
28} 15. Each WRITING in YOUR possession or control evidencing the facts set forth in YOUR
5
AMENDED DEMAND FOR PRODUCTION OF DOCUMENTS
answer to Interrogatory 115.1 of YOUR responses to Form Interrogatories-Limited Civil Cases
(Economic Litigation) (Set Two-Amended) propounded concurrently with these
amended document
demands.
16. Each WRITING evidencing any communication between Edward F. Niderost and
Wayne Cook which mentions or refers to the REAL PROPERTY.
17. Each WRITING evidencing any communication between Edward F. Niderost and
Wayne A. Cook, Trustee of The Wayne A. Cook 1998 Family Trust Dated 12/29/9
8 which mentions
or refers to the REAL PROPERTY.
18. Each WRITING evidencing any communication between Edward F. Niderost, Trustee
10} of The Edward F. Niderost Revocable Living Trust Dated November 8, 1998 and Wayne Cook
IL which mentions or refers to the REAL PROPERTY.
Bo
aR 12 19. Each WRITING evidencing any communication between Edward F. Niderost, Trustee
oe
os
Ee
Bere
gs
ga 13) of The Edward F. Niderost Revocable Living Trust Dated November 8, 1998
and Wayne A. Cook,
B20
Sign Trustee of The Wayne A. Cook 1998 Family Trust Dated 12/29/98 which mentions
ax
Sent: Tuesday, September 15, 2020 1:09 PM
To: Raymond L. Sandelman
Ce: Sarah Vercruysse
Subject: RE: Cook v. Niderost
Categories: Printed
See my responses below.
-
From: Raymond L.‘Sandelman [mailto:Raymond@sandelmanlaw.com]
Sent: Friday, August 21, 2020 1:19 PM
To: Sara Knowles
Subject: FW: Cook v. Niderost
Sara:
| am in receipt of the responses by John Denton, Trustee to Wayne Cook’s first set of requests for admissions. Code of Civil
Procedure section 2033.290 provides in part that:
(a) On receipt of a response to requests for admissions, the party requesting admissions may
move for an order compelling a further response if that party deems that either or both of the following
apply: ..
An answer to a particular request is evasive or incomplete.
(2) An objection to a particular request is without merit or too general. . .
This is a meet and confer letter requesting that Mr. Denton withdraw the objections that have been asserted to Request
for Admission 1(d) and provide a further verified response without the objections within the next seven days.
Request for Admission 1(d) asked for an admission that “YOU are not aware of any facts that the FINE $500,000 NOTE is
UNCONSCIONABLE (As used in these requests for admissions ‘UNCONSCIONABLE’ is used in the term is explained in De
La Torre v. CashCall, Inc. (2018) 5 Cal.Sth 966, 982-984).” You have objected on the grounds that the request calls for a
legal conclusion. This is frivolous.
Requests for admission are not restricted to facts or documents, but apply to conclusions,
opinions, and even legal questions. (See 2 Witkin, supra, § 174 at p. 1164; Burke v. Superior Court of
Sacramento County (1969) 71 Cal.2d 276, 282, 78 Cal.Rptr. 481, 455 P.2d 409.)
City of Glendale v. Marcus Cable Associates, LLC (2015) 235 Cal.App.4th 344, 353
5) [8:1299] Legal conclusions: An RFA may also require “an application of law to fact.” [CCP §
2033.010}
{a) [8:1300] Examples: Thus, a party may be required to admit or deny who is the “owner” of
property; or whether the driver of a car had the owner's “permission or consent”; or whether specified
exuem_(o
acts were “negligent”; or whether a third person was an “authorized agent” or was acting in the “course
and scope of employment,” etc. [
See Burke v. Sup.Ct. (Fidelity & Dep. Co. of Maryland) (1969) 71 C2d 276, 280, 78 CR 481, 487—
whether attachment levy was “regular on its face”; and Garcia v. Hyster Co. (1994) 28 CA4th 724, 735, 34
CR2d 283, 289—whether employer was “negligent” and whether such negligence was “legal cause” of P's
injuries]
(b) [8:1301] Purpose: Each of the foregoing involves some legal conclusion; e.g., “ownership” may
depend on the validity of deeds, inheritance rights of third parties, etc.
But if a party could not be forced to admit that another is the “owner” of property, or was “acting
in the course and scope of employment,” these issues would have to go to trial. Forcing such admissions
often leads to early dismissals or summary judgments!
Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020)
You have also objected to the request on the grounds that it is not complete because it requires your client to look at
another document. The FINE $500,000 NOTE is defined in the requests for admissions: “As used in these requests for
admissions the “FINE $500,000 NOTE” means a promissory note dated February 18, 2020 in the amount of $500,000 a
copy of is attached hereto marked Exhibit 1.” The definition is complete, the exhibit just makes the definition even clearer.
Apparently, you think that it is inappropriate to give you a copy of the note as part of the process of asking a request for
admission. | am not sure why you think that showing your client a copy ofa note is some evil act that has been prohibited.
Clement v. Alegre (2009) 177 Cal.App.4th 1277 makes clear that the rule about an inquiry being complete is part of the
principle that the number of discovery inquiries be limited. The Clement Court held that:
Plaintiffs do not contend that any of the interrogatories to which they objected on this basis were
unclear or that the interrogatories, considered singly or collectively, in any way undermined or violated
the presumptive numerical limit of 35 interrogatories of section 2030.030. Yet plaintiffs seized on what
might have been at most an arguable technical violation of the rule, to object to interrogatories that were
clear and concise where the interrogatories did not even arguably violate the presumptive numerical
limitation set by the statute. In so doing, plaintiffs themselves engaged in a type of gamesmanship and
delay decried by the drafters of the act...
The rule that each prepared interrogatory must be “full and complete” by itself [citation omitted],
together with the rule that ‘no specially prepared interrogatory shall contain sub-parts or compound,
conjunctive or disjunctive questions’ [citation omitted] prevents evasion of the statutory limit on the
number of interrogatories that one party may propound to another. [Citation omitted]
The Clement Court reviewed the legislative history and then noted on page 1288 and 1289:
The focus of the Reporter's Note - and the statute - is upon the prohibition of prefaces,
instructions, definitions, and subparts (except as approved by the Judicial Council) to “prevent wrangling”
about whether the propounding party is attempting to evade the 35 question limit. (2 Hogan &Weber,
Cal. Civil Discovery, Appendix D, Proposed California Civil Discovery Act of 1986, and Reporter's Notes at
p. App.D-58.) The Reporter's Note on this subdivision does not even mention the language seized upon
by plaintiffs-that “[e]ach interrogatory shall be full and complete in and of itself.” (§2030.060, subd. (d).)
Nothing we have found in the legislative history of section 2030.060, subdivision (d) or its predecessor,
former section 2030, subdivision (c)(5), provides any further clarification regarding the statutory language
“full and complete in and of itself.”
The purpose of the rule was to simplify discovery and not have litigants evading the 35-question limit by propounding
questions which necessarily created multiple responses. The Clement court distinguishes other holdings which disallow
reference to other materials where the answers would necessarily violate the “rule of 35”. The Clement Court concluded
at page 1290:
We read Cantanese as it was intended: reference to other materials or documents or
incorporation by reference of such materials is prohibited where the effect is to undermine the rule of 35.
Unlike Catanese, supra, reference to the previous interrogatory here does not refer to or incorporate
other materials or documents. As the referee below concluded, Catanese is “inapposite.” Section
2030.060 was designed to prevent precisely the type of attempt to avoid the presumptive limit of 35 that
occurred in that case (see 1 Hogan & Weber, Cal. Civil Discovery, supra, §5.6, pp 5-14) but that did not
occur here.
To conclude otherwise in these circumstances would require a cumbersome redrafting of
questions and potentially multiple rounds of discovery, undermining the Act's aim of clarity and simplicity
and returning to the era of “paper[ing] to death” the opposition. (Deyo v. Kilbourne, supra, 84 Cal.App.3d
at pp. 780-781,149 Cal.Rptr. 499.)”
Your client was able to deal with definition of “FINE $500,000 NOTE” in its response to eight other requests for admissions.
Please withdraw the objections that have been asserted and provide further verified responses without the objections
within the next seven days. If you contend that further responses are not necessary, please advise me of the legal and
factual basis for your position within the next seven days. | will remove such objections.
RAYMOND L. SANDELMAN
Attorney at Law
196 Cohasset Road, Suite 225
Chico, CA 95926-2284
(530) 343-5090
(530) 343-5091 (Fax)
Raymond, sandelmanlaw.com
NOTE: This email is confidential and is intended for the recipient(s) listed. If you are not a listed recipient or someone authorized to
receive email on behalf of a listed recipient, please reply to the sender that the email was misdirected and delete the email. Thank you.
Raymond L. Sandelman
From: Sara Knowles
Sent: Tuesday, September 15, 2020 1:13 PM
To: Raymond L, Sandelman
Ce: Andrew Morrissey; Sarah Vercruysse; Dawn Votaw
Subject: RE: Cook v. Niderost
Categories: Printed
Ray —
1am reviewing these responses, as well as your email, with my client. | anticipate that we will be providing revised
responses within the next 7-10 days. If we do not amend as requested by you, | will provide you with legal authorities
as to the basis of my position.
Sara
~ a
From: Raymond L. Sandelman [mailto:Raymond@sandelmantaw.com]}
Sent: Friday, August 21, 2020 4:42 PM
To: Sara Knowles
Cc: Andrew Morrissey
Subject: Cook v. Niderost
Sara:
lam in receipt of the responses by John Denton, successor trustee to Wayne Cook’s first set of from interrogatories. Code
of Civil Procedure section 2030.300 provides in part that:
(a) On receipt of a response to interrogatories, the propounding party may move for an order
compelling a further response if the propounding party deems that any of the following apply: . .
(1) An answer to a particular interrogatory is evasive or incomplete. . .
This is a meet and confer letter requesting that Mr. Denton provide further verified responses without the objections
within the next seven days.
Interrogatory 14.1: Please identify the statutes and regulations that were violated. The reference to the pleadings is not
a proper response.
Answers must be complete and responsive. Thus, it is not proper to answer by stating, “See my
deposition,” “See my pleading,” or “'See the financial statement."
Deyo v. Kilbourne (1978) 84 Cal.App.3d 771,783-784
Interrogatory 17.1:
We need a response to Request for Admission No. 1 (b).
We need a response to Request for Admission No. 1 (d).
The response with respect to Request for Admission No. 1 (f) is evasive. It states that the Dodd-Frank Wall Street Reform
and Consumer Protection Act is applicable where the offer or extension of credit is done regularly, but there are no facts
articulated that the offer or extension of credit by the creditors in this action was done regularly. Also, the response states
that Regulation Z prohibits a creditor from making a higher-price mortgage loan without regard to the consumer’s ability
to repay the loan. No facts are disclosed concerning Mr. Niderost’s lack of ability to pay the loan.
Parties, like witnesses, are required to state the truth, the whole truth, and nothing but the truth
in answering written interrogatories. (Hunter v. International Systems & Controls Corp. (W.D.Mo. 1972)
56 F.R.D. 617, 631.) Where the question is specific and explicit, an answer which supplies only a portion
of the information sought is wholly insufficient. Likewise, a party may not provide deftly worded
conclusionary answers designed to evade a series of explicit questions. (In Re Professional Hockey
Antitrust Litigation (E.D.Pa. 1974) 63 F.R.D. 641, 650-654.)
Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 782.
The response with respect to Request for Admission No. 1 (g) is evasive. It states that the Real Estate Settlement
Procedures Act is applicable to creditors who make loans aggregating more than $1,000.000 per year and that Mr. Denton
knows that Dr. Fine makes loans of more than $1,000,000 per year. We need him to articulate the specific facts as to
these $1,000,000 plus loans per year.
Parties, like witnesses, are required to state the truth, the whole truth, and nothing but the truth
in answering written interrogatories. (Hunter v. International Systems & Controls Corp. (W.D.Mo. 1972)
56 F.R.D. 617, 631.) Where the question is specific and explicit, an answer which supplies only a portion
of the information sought is wholly insufficient. Likewise, a party may not provide deftly worded
conclusionary answers designed to evade a series of explicit questions. (in Re Professional Hockey
Antitrust Litigation (E.D.Pa. 1974) 63 F.R.D. 641, 650-654.)
Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 782.
We need a response to Request for Admission No. 1 (k).
The response with respect to Request for Admission No. 1 (0) is evasive. There is no articulating of facts concerning
“wrongful use of property.”
We begin by observing that to establish a “wrongful use” of property to which an elder has a
contract right, the elder must demonstrate a breach of the contract, or other improper conduct. In Stebley
v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 134 Cal.Rptr.3d 604, the trial court sustained a
demurrer without leave to amend to the plaintiffs' complaint, which asserted a claim for wrongful
foreclosure and a claim for elder abuse based on the foreclosure. (/d. at pp. 524-525, 134 Cal.Rptr.3d
604.) After affirming the ruling with respect to the wrongful foreclosure claim, the appellate court held
that the elder abuse claim also failed, concluding that a lender does not engage in financial abuse of an
elder by properly exercising its rights under a contract, even though that conduct is financially
disadvantageous to an elder. (/d. at pp. 527-528, 134 Cal.Rptr.3d 604.)
Paslay v. State Farm General Ins. Co. (2016) 248 Cal.App.4th 639, 657
We need him to articulate the specific facts of “wrongful use of property.”
Parties, like witnesses, are required to state the truth, the whole truth, and nothing but the truth
in answering written interrogatories. (Hunter v. International Systems & Controls Corp. (W.D.Mo. 1972)
56 F.R.D. 617, 631.) Where the question is specific and explicit, an answer which supplies only a portion
of the information sought is wholly insufficient. Likewise, a party may not provide deftly worded
conclusionary answers designed to evade a series of explicit questions. (in Re Professional Hockey
Antitrust Litigation (E.D.Pa, 1974) 63 F.R.D. 641, 650-654.)
Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 782.
The response with respect to Request for Admission No. 1 (p) is evasive. Mr. Niderost signed a written offer to purchase
real property for $1,500,000. We need him to articulate the specific facts of his denial that he selected the purchase price
in the written offer.
Parties, like witnesses, are required to state the truth, the whole truth, and nothing but the truth
in answering written interrogatories. (Hunter v. international Systems & Controls Corp. (W.D.Mo. 1972)
56 F.R.D. 617, 631.) Where the question is specific and explicit, an answer which supplies only a portion
of the information soug