Preview
1
Electronically Filed
Nicole Lahmani, Esq. SBN 278182 12/22/2020 1:42 PM
LAHMANI LAW, APC
2 1539 E. Fourth Street Superior Court of California
Santa Ana, CA 92701 County of Stanislaus
3 Telephone: (949) 202-1111 Clerk of the Court
Fax: (855) 700-0529 By: Kimberly Mean, Deputy
4
Attorney for Plaintiff,
5 Benjamin Cornejo
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF STANISLAUS
10
BENJAMIN CORNEJO, ) Case No.: CV-19-003585
11 )
) PLAINTIFFS’ SEPARATE STATEMENT
12 Plaintiff, ) IN SUPPORT OF MOTION TO COMPEL
)
13 ) FURTHER RESPONES TO REQUEST
vs.
) FOR PRODUCTION PROPOUNDED ON
14 ) DEFENDANT CALAVERAS
JAMES L. ADAMS, SOUTH VALLEY )
15 )
MATERIALS INC., GARY NEIL )
16 ZAIGER, ZAIGER’S INC. GENETICS, ) Date: January 14, 2021
and DOES 1 through 20, Inclusive, ) Time: 8:30 a.m.
17 ) Location: Dept. 24
)
18 Defendants. )
__________________________________ )
19 )
JOHNSON SYHARATH, LINDA )
20 SYHARATH )
Plaintiffs, )
21 )
Vs. )
22 JAMES ADAMS, SOUTH VALLEY )
)
MATERIALS INC., CALAVERAS )
23 MATERIALS INC. and DOES 1 through )
100 inclusive )
24
)
25 AND ALL RELATED CROSS-ACTIONS
)
26
27
//
28
//
-1-
PLAINTIFFS’ SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONES TO
REQUEST FOR PRODUCTION PROPOUNDED ON DEFENDANT CALAVERAS
1 TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
2 Plaintiff hereby submit this Separate Statement pursuant to California Rules of
3 Court Rule 3.1345, in support of Plaintiff’s Motion to Compel Further Responses to Requests for
4 Production of Documents Nos.: 1 and 2 propounded on Defendant CALAVERAS.
5
6 Request No. 1:
7 Requests any and all records of drug and alcohol testing performed on Defendant James L. Adams
8 following the incident.
9 Defendant’s Response to Request No. 1:
10 Objection. Vague, ambiguous, and unintelligible as to the meaning of the term
11 “INCIDENT.” Defendant also objects to this Interrogatory as overbroad and unduly burdensome.
12 Defendant also objects to this Interrogatory on the grounds and to the extent that it is irrelevant
13 and not reasonably calculated to lead to the discovery of admissible evidence for purposes of
14 trial. Subject to and without waiving the foregoing objections, Defendant responds as follows:
15 Defendant has admitted liability for the initial collision between Defendant Adams and Plaintiff
16 (see Defendant’s response to Request for Admission No. 3), therefore making this Interrogatory
17 irrelevant. However, Defendant refers Plaintiff to the Traffic Collision Report, which is equally
18 available to all parties. Discovery is continuing and Defendant expressly reserves the right to
19 amend and/or supplement this response at any time.
20 Legal and Factual Reasons for Compelling Further Response:
21 The Code of Civil Procedure requires a responding party to state whether the demand is
22 being complied with “either in whole or in part, and that all documents or things in the demanded
23 category that are in the possession, custody, or control of that party and to which no objection is
24 being made will be included in the production.” Code Civ. Proc. § 2031.220.
25 In this request, Plaintiff seeks any and all records of drug and alcohol testing performed on
26 Defendant Adams following the incident. Defendant provides standard objections and submits its
27 admission of liability for the initial collision as making this request irrelevant. Defendant also
28 improperly refers Plaintiff to the Traffic Collision report which does not contain the requested
-2-
PLAINTIFFS’ SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONES TO
REQUEST FOR PRODUCTION PROPOUNDED ON DEFENDANT CALAVERAS
1 information regarding the drug and alcohol testing performed on Defendant Adams. The
2 requested documents are relevant to the cause of action of Negligent Entrustment alleged in
3 Plaintiff’s Complaint. Further, Defendant’s attempt to insulate by using its alleged admission for
4 the initial collision only. However, this request also would provide information giving rise to
5 punitive damage. Additionally, Defendant’s Motion for Protective Order was denied, which
6 would preclude any argument that this information sought is irrelevant or protected.
7 Request for Production No. 2
8 Any and all records of drug and alcohol testing performed on Defendant James L. Adams within
9 three (3) years prior to the incident.
10 Response to Request for Production of Documents No. 2
11 Defendant includes objections and states it admits liability for the initial collision and “therefore
12 making this Interrogatory irrelevant and harassing.”
13 Reason for Further Responses Request for Production of Documents No. 2
14 In this request, Plaintiff seeks any and all records of drug and alcohol testing performed on
15 Defendant Adams within three years prior to the incident. Defendant objects as to vagueness,
16 overbreadth, and relevance and responds that “Defendant has admitted liability for the initial
17 collision….making the interrogatory irrelevant.”. Defendant is essentially refusing to respond to
18 the question posed. Further, the history of Defendant Adams’ drug and alcohol use and
19 Defendant Calaveras’ information relating to that history is relevant to the cause of action of
20 Negligent Entrustment alleged in Plaintiff’s Complaint. Defendant’s unqualified admission as to
21 liability is not clear as to whether it also admits liability as to negligent entrustment. Further,
22 Defendant’s attempt to insulate by using its alleged admission for the initial collision only.
23 However, this request also would provide information giving rise to punitive damage.
24 Additionally, Defendant’s Motion for Protective Order was denied, which would preclude any
25 argument that this information sought is irrelevant or protected.
26 Request for production of Documents No 18
27 A copy of the vehicle registration for your vehicle at the time of the subject incident.
28
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PLAINTIFFS’ SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONES TO
REQUEST FOR PRODUCTION PROPOUNDED ON DEFENDANT CALAVERAS
1 Response to Request for Production No. 18
2 In addition to objections and language regarding admission of liability as to the initial collision,
3 Defendant responds, “After a diligent search and reasonable inquiry has been made in an effort
4 to comply with this Request, Defendant is unable to locate the requested document.”
5 Reason for Compelling Further Response to Request for Production No. 18
6 Defendant’s responses are incomplete as required by the Code.
7 “A representation of inability to comply with the particular demand…shall affirm that a diligent
8 search and a reasonable inquiry has been made in an effort to comply with that demand. This
9 statement shall also specify whether the inability to comply is because the particular item or
10 category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never
11 been, or is no longer, in the possession, custody, or control of the responding party. The
12 statement shall set forth the name and address of any natural person or organization known or
13 believed by that party to have possession, custody, or control of that item or category of item.”
14 (Code Civ. Proc., § 2031.230.)
15 In response to several requests Defendant indicates that following a diligent search and
16 reasonable investigation, Defendant is unable to locate the requested document. But these
17 responses fail to indicate whether Defendant’s inability to comply is because the particular item
18 or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has
19 never been, or is no longer, in the possession, custody, or control of the responding party.
20 (Code Civ. Proc., § 2031.230.) Further, Defendant has an obligation to provide a diligent search,
21 and this includes obtaining a records check with the Department of Motor Vehicles to obtain the
22 requested vehicle registration of the cement truck
23
24
Date: December 17, 2020
25
26
___________________________
27 BY: Nicole Lahmani, Esq.
Attorney for Plaintiff,
28 Benjamin Cornejo
-4-
PLAINTIFFS’ SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONES TO
REQUEST FOR PRODUCTION PROPOUNDED ON DEFENDANT CALAVERAS
PROOF OF SERVICE
1
STATE OF CALIFORNIA, COUNTY OF ORANGE
2 I am a resident of the State of California, over the age of eighteen years, and not a party
to the within action. My business address is1539 E. 4th Street, Santa Ana, CA 92868. On
3 December 17, 2020, I served the within documents(s):
4
PLAINTIFFS’ SEPARATE STATEMENT IN SUPPORT OF MOTION TO
5 COMPEL FURTHER RESPONES TO REQUEST FOR PRODUCTION OF
DOCUMENTS PROPOUNDED ON DEFENDANT
6
7 David M. Samuels Christopher J. Morey, Esq.
Lewis Brisbois Bisgaard & Smith LLP Robyn J. Mallon, Esq.
8 633 West 5th Street, Suite 4000 MOREY &UPTON LLP
Los Angeles, CA 90071 611 Anton Blvd., Suite 800
9
Attorneys for James L Adams & South Costa Mesa, CA
10 Valley Materials Inc.
Facsimile: (213) 250-7900 cmorey@mulaw.com
11
david.samuels@lewisbrisbois.com rmallon@mulaw.com
12
13 Jason Decker
Yempuku & McNamara
14 LAW OFFICES OF YEMPUKU &
McNAMARA
15
P.O. BOX 7218
16 LONDON, KY
40742Jason.Decker@LibertyMutual.com
17 Attorney’s for Gary Neal Zaiger and Zaiger’s
Inc. Genetics
18
19 [ X ] [E-Mail] by transmitting Via Electronic Mail the document(s) listed above to the e-mail
address set forth above on this date before 5:00 p.m. as set forth above:
20
21
I am readily familiar with the firm’s practice of collection and processing correspondence
for mail. Under the practice, it would be deposited with the U.S. Postal Service on the same day
22 with postage thereon fully prepaid in the ordinary course of business. I am aware that on
motion of the party served, service is presumed invalid if postal cancellation date or postage
23 meter date is more than one day after date of deposit for mailing in affidavit.
24
I declare under penalty of perjury under the laws of the State of California that the above
25 is true and correct. Executed on December 17, 2020 in Santa Ana, California.
26
27
_________________________
28 ALLELI P. CARINO
-1-
PROOF OF SERVICE
Preview
1 Electronically Filed Nicole Lahmani, Esq. SBN 278182 12/22/2020 1:42 PM LAHMANI LAW, APC 2 1539 E. Fourth Street Superior Court of California Santa Ana, CA 92701 County of Stanislaus 3 Telephone: (949) 202-1111 Clerk of the Court Fax: (855) 700-0529 By: Kimberly Mean, Deputy 4 Attorney for Plaintiff, 5 Benjamin Cornejo 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF STANISLAUS 10 BENJAMIN CORNEJO, ) Case No.: CV-19-003585 11 ) ) PLAINTIFFS’ SEPARATE STATEMENT 12 Plaintiff, ) IN SUPPORT OF MOTION TO COMPEL ) 13 ) FURTHER RESPONES TO REQUEST vs. ) FOR PRODUCTION PROPOUNDED ON 14 ) DEFENDANT CALAVERAS JAMES L. ADAMS, SOUTH VALLEY ) 15 ) MATERIALS INC., GARY NEIL ) 16 ZAIGER, ZAIGER’S INC. GENETICS, ) Date: January 14, 2021 and DOES 1 through 20, Inclusive, ) Time: 8:30 a.m. 17 ) Location: Dept. 24 ) 18 Defendants. ) __________________________________ ) 19 ) JOHNSON SYHARATH, LINDA ) 20 SYHARATH ) Plaintiffs, ) 21 ) Vs. ) 22 JAMES ADAMS, SOUTH VALLEY ) ) MATERIALS INC., CALAVERAS ) 23 MATERIALS INC. and DOES 1 through ) 100 inclusive ) 24 ) 25 AND ALL RELATED CROSS-ACTIONS ) 26 27 // 28 // -1- PLAINTIFFS’ SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONES TO REQUEST FOR PRODUCTION PROPOUNDED ON DEFENDANT CALAVERAS 1 TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2 Plaintiff hereby submit this Separate Statement pursuant to California Rules of 3 Court Rule 3.1345, in support of Plaintiff’s Motion to Compel Further Responses to Requests for 4 Production of Documents Nos.: 1 and 2 propounded on Defendant CALAVERAS. 5 6 Request No. 1: 7 Requests any and all records of drug and alcohol testing performed on Defendant James L. Adams 8 following the incident. 9 Defendant’s Response to Request No. 1: 10 Objection. Vague, ambiguous, and unintelligible as to the meaning of the term 11 “INCIDENT.” Defendant also objects to this Interrogatory as overbroad and unduly burdensome. 12 Defendant also objects to this Interrogatory on the grounds and to the extent that it is irrelevant 13 and not reasonably calculated to lead to the discovery of admissible evidence for purposes of 14 trial. Subject to and without waiving the foregoing objections, Defendant responds as follows: 15 Defendant has admitted liability for the initial collision between Defendant Adams and Plaintiff 16 (see Defendant’s response to Request for Admission No. 3), therefore making this Interrogatory 17 irrelevant. However, Defendant refers Plaintiff to the Traffic Collision Report, which is equally 18 available to all parties. Discovery is continuing and Defendant expressly reserves the right to 19 amend and/or supplement this response at any time. 20 Legal and Factual Reasons for Compelling Further Response: 21 The Code of Civil Procedure requires a responding party to state whether the demand is 22 being complied with “either in whole or in part, and that all documents or things in the demanded 23 category that are in the possession, custody, or control of that party and to which no objection is 24 being made will be included in the production.” Code Civ. Proc. § 2031.220. 25 In this request, Plaintiff seeks any and all records of drug and alcohol testing performed on 26 Defendant Adams following the incident. Defendant provides standard objections and submits its 27 admission of liability for the initial collision as making this request irrelevant. Defendant also 28 improperly refers Plaintiff to the Traffic Collision report which does not contain the requested -2- PLAINTIFFS’ SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONES TO REQUEST FOR PRODUCTION PROPOUNDED ON DEFENDANT CALAVERAS 1 information regarding the drug and alcohol testing performed on Defendant Adams. The 2 requested documents are relevant to the cause of action of Negligent Entrustment alleged in 3 Plaintiff’s Complaint. Further, Defendant’s attempt to insulate by using its alleged admission for 4 the initial collision only. However, this request also would provide information giving rise to 5 punitive damage. Additionally, Defendant’s Motion for Protective Order was denied, which 6 would preclude any argument that this information sought is irrelevant or protected. 7 Request for Production No. 2 8 Any and all records of drug and alcohol testing performed on Defendant James L. Adams within 9 three (3) years prior to the incident. 10 Response to Request for Production of Documents No. 2 11 Defendant includes objections and states it admits liability for the initial collision and “therefore 12 making this Interrogatory irrelevant and harassing.” 13 Reason for Further Responses Request for Production of Documents No. 2 14 In this request, Plaintiff seeks any and all records of drug and alcohol testing performed on 15 Defendant Adams within three years prior to the incident. Defendant objects as to vagueness, 16 overbreadth, and relevance and responds that “Defendant has admitted liability for the initial 17 collision….making the interrogatory irrelevant.”. Defendant is essentially refusing to respond to 18 the question posed. Further, the history of Defendant Adams’ drug and alcohol use and 19 Defendant Calaveras’ information relating to that history is relevant to the cause of action of 20 Negligent Entrustment alleged in Plaintiff’s Complaint. Defendant’s unqualified admission as to 21 liability is not clear as to whether it also admits liability as to negligent entrustment. Further, 22 Defendant’s attempt to insulate by using its alleged admission for the initial collision only. 23 However, this request also would provide information giving rise to punitive damage. 24 Additionally, Defendant’s Motion for Protective Order was denied, which would preclude any 25 argument that this information sought is irrelevant or protected. 26 Request for production of Documents No 18 27 A copy of the vehicle registration for your vehicle at the time of the subject incident. 28 -3- PLAINTIFFS’ SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONES TO REQUEST FOR PRODUCTION PROPOUNDED ON DEFENDANT CALAVERAS 1 Response to Request for Production No. 18 2 In addition to objections and language regarding admission of liability as to the initial collision, 3 Defendant responds, “After a diligent search and reasonable inquiry has been made in an effort 4 to comply with this Request, Defendant is unable to locate the requested document.” 5 Reason for Compelling Further Response to Request for Production No. 18 6 Defendant’s responses are incomplete as required by the Code. 7 “A representation of inability to comply with the particular demand…shall affirm that a diligent 8 search and a reasonable inquiry has been made in an effort to comply with that demand. This 9 statement shall also specify whether the inability to comply is because the particular item or 10 category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never 11 been, or is no longer, in the possession, custody, or control of the responding party. The 12 statement shall set forth the name and address of any natural person or organization known or 13 believed by that party to have possession, custody, or control of that item or category of item.” 14 (Code Civ. Proc., § 2031.230.) 15 In response to several requests Defendant indicates that following a diligent search and 16 reasonable investigation, Defendant is unable to locate the requested document. But these 17 responses fail to indicate whether Defendant’s inability to comply is because the particular item 18 or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has 19 never been, or is no longer, in the possession, custody, or control of the responding party. 20 (Code Civ. Proc., § 2031.230.) Further, Defendant has an obligation to provide a diligent search, 21 and this includes obtaining a records check with the Department of Motor Vehicles to obtain the 22 requested vehicle registration of the cement truck 23 24 Date: December 17, 2020 25 26 ___________________________ 27 BY: Nicole Lahmani, Esq. Attorney for Plaintiff, 28 Benjamin Cornejo -4- PLAINTIFFS’ SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONES TO REQUEST FOR PRODUCTION PROPOUNDED ON DEFENDANT CALAVERAS PROOF OF SERVICE 1 STATE OF CALIFORNIA, COUNTY OF ORANGE 2 I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is1539 E. 4th Street, Santa Ana, CA 92868. On 3 December 17, 2020, I served the within documents(s): 4 PLAINTIFFS’ SEPARATE STATEMENT IN SUPPORT OF MOTION TO 5 COMPEL FURTHER RESPONES TO REQUEST FOR PRODUCTION OF DOCUMENTS PROPOUNDED ON DEFENDANT 6 7 David M. Samuels Christopher J. Morey, Esq. Lewis Brisbois Bisgaard & Smith LLP Robyn J. Mallon, Esq. 8 633 West 5th Street, Suite 4000 MOREY &UPTON LLP Los Angeles, CA 90071 611 Anton Blvd., Suite 800 9 Attorneys for James L Adams & South Costa Mesa, CA 10 Valley Materials Inc. Facsimile: (213) 250-7900 cmorey@mulaw.com 11 david.samuels@lewisbrisbois.com rmallon@mulaw.com 12 13 Jason Decker Yempuku & McNamara 14 LAW OFFICES OF YEMPUKU & McNAMARA 15 P.O. BOX 7218 16 LONDON, KY 40742Jason.Decker@LibertyMutual.com 17 Attorney’s for Gary Neal Zaiger and Zaiger’s Inc. Genetics 18 19 [ X ] [E-Mail] by transmitting Via Electronic Mail the document(s) listed above to the e-mail address set forth above on this date before 5:00 p.m. as set forth above: 20 21 I am readily familiar with the firm’s practice of collection and processing correspondence for mail. Under the practice, it would be deposited with the U.S. Postal Service on the same day 22 with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage 23 meter date is more than one day after date of deposit for mailing in affidavit. 24 I declare under penalty of perjury under the laws of the State of California that the above 25 is true and correct. Executed on December 17, 2020 in Santa Ana, California. 26 27 _________________________ 28 ALLELI P. CARINO -1- PROOF OF SERVICE