Preview
{
Bradley A. Post, Esq., SBN 127028
Sarah A. Ornelas, Esq., SBN 258890
R
SBN 294350
Claudia Aceves, Esq.,
BORTON PETRINI, LLP
201 Needham Street
FILED
Modesto, California 95354
TNA -S A
Tel: (209) 576-1701
Fax: (209) 527-9753
F STAI
gUR gory
cy (Lifts
Attorneys for Defendants gas PUTY
Great Valley Realtors, Inc.,
Troy Wright and Audrey Goesch ane a APe Te HR
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF STANISLAUS
—
10
BILL BUNNELL and KIM BUNNELL, Case No. 2018041
ll
Plaintiffs, DEFENDANTS’ NOTICE OF MOTION
12 AND MOTION TO COMPEL
Vv. PLAINTIFFS, TO PROVIDE
13
GREAT VALLEY REALTORS INC, AUDREY SUPPLEMENTAL RESPONSES TO (1)
14 GOESCH, TROY WRIGHT, JASON WRIGHT, PLAINTIFF, BILL BUNNELL’S
GINA WRIGHT, CENTURY 21 M&M AND RESPONSES TO FORM *
15 ASSOCIATES, TAMI GOSSELIN, DAMON INTERROGATORIES, (2) PLAINTIFF,
SALINAS, DUNCAN LYONS, AMERISPEC
16} INSPECTION SERVICES and DOES | through KYM BUNNELL’S RESPONSES TO
50, inclusive, FORM INTERROGATORIES (3)
17 PLAINTIFF’S BILL BUNNELL’S
Defendants. RESPONSES TO SPECIAL
18
INTERROGATORIES AND (4)
19) PLAINTIFF, KYM BUNNELL’S
RESPONSES TO SPECIAL
20 INTERROGATORIES; MEMORANDUM
21 OF POINTS AND AUTHORITIES;
REQUEST FOR SANCTIONS; AND
22 DECLARATION OF SARAH A.
ORNELAS IN SUPPORT THEREOF
23
24 Date: June 6, 2017 “
Time: 8:30a.m.
25 Dept.: 24 4
Judge: Roger M. Beauchesne
26
[Filed concurrently with Defendants’ [Proposed]
27 AND ALL RELATED CROSS-ACTIONS Order and Defendants Separate Statement in
Support of the Motion to Compel]
28
“|
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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that Defendants, GREAT VALLEY REALTORS INC,
AUDREY GOESCH, and TROY WRIGHT, hereby moves this Court for an order compelling Plaintiffs’
Bill Bunnell and Kym Bunnell (wrongly named as Kim Bunnell), to provide further responses to (1)
Plaintiff, Bill Bunnell’s Responses to Form Interrogatories (2) Plaintiff, Kym Bunnell’s Responses to
Form Interrogatories, (3) Plaintiffs Bill Bunnell’s Responses to Special Interrogatories and (4) Plaintiff,
Kym Bunnell’s Responses to Special Interrogatories (collectively referred to as “the Interrogatories”).
The hearing for this motion will take place on June 6, 2017, at the Superior Court of California, County
of Stanislaus located at 801 10th Street, Modesto, California 95354, at 8:30 a.m., in Department 24. In
10 addition, Defendant is requesting sanctions against Plaintiff in the amount of $1,712.50.
ll The authority for this motion is Code of Civil Procedure §§2031.300, 2023.010,
12 2023.030 and 1005(a). The motion will be based on this notice, the attached memorandum of points and
13 authorities, the Declaration of Sarah A. Ornelas, the attached exhibits, the Separate Statement in Support
14 of the Defendants’ Motion to Compel and any further evidence and argument that may be presented at
15 the time of this hearing.
(D
16 Dated: May___, 2017 BORTON PET) RINI
17
By. ><
18} melas
Attorneys fox Defendant,
19 GREAT VAL) Y REALTORS INC,
UD REY GOESCH, and TROY WRIGHT
20
21
MEMORANDUM OF POINTS AND AUTHORITIES
22
23 I INTRODUCTION
24 This action stems from the Plaintiffs’ purchase of a home located at 2440 Kaslin Drive,
25 Modesto, California (the “Property”), and the presence of mold that was alleged discovered immediately
26 after the closing on the Property.
27 On December 15, 2015, Plaintiffs, BILL BUNNELL and KYM BUNNELL (wrongly
28 named in this action by the Plaintiffs’ as Kim Bunnell), (hereinafter referred to as “B. BUNNELL” and
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K. BUNNELL, respectively, and collectively as “Plaintiffs”) filed the original Complaint against
Defendants, GREAT VALLEY REALTORS INC., AUDREY GOESCH, TROY WRIGHT, JASON
WRIGHT, GINA WRIGHT, CENTURY 21 M&M AND ASSOCIATES, TAMI GOSSELIN, DAMON
SALINAS, DUNCAN LYONS, and AMERISPEC INSPECTION SERVICES. (Declaration of Sarah A.
Omelas, hereinafter “Ornelas Decl.,” | 2). Subsequently, on April 4, 2016 Plaintiffs filed a First
Amended Complaint (hereinafter “FAC”) against, alleging Breach of Contract; Breach of Covenant of
Good Faith and Fair Dealing; Concealment; Breach of Duty to Disclose; Breach of Duty to Inspect and
Disclose; Breach of Fiduciary Duty; and Negligence. As against Defendants, GREAT VALLEY
REALTORS INC, AUDREY GOESCH, and TROY WRIGHT (hereinafter collectively referred to as
10 “Defendants”), Plaintiffs alleged: Concealment and Breach of Duty to Inspect and Disclose. (Ornelas
ll Decl., 13). Thereafter, on January 1, 2017 Defendants, PREMIER VALLEY, INC. dba CENTURY 21
12| M&M AND ASSOCIATES and TAMI GOSSELIN filed a Cross-Complaint against TROY WRIGHT,
13 JASON WRIGHT, GINA WRIGHT, DUNCAN LYONS and AMERISPEC INSPECTION SERVICES
14] for Indemnification. (Ornelas Deecl., J 4).
15 On October 18, 2016 Defendants served Form Interrogatories on B. Bunnell and K.
16 Bunnell. (Ornelas Decl., 5, Exhibits A and B, respectively). On November 15, 2016, Defendants served
17 “Specially Prepared Interrogatories to Plaintiff, Bill Bunnell, Set One (1)” and “Specially Prepared
18 Interrogatories to Plaintiff, Kim Bunnell, Set One (1).” (Omelas Decl., ] 5, Exhibits C and D,
19 respectively).
20 The responses to the Form Interrogatories were due on November 22, 2016, and the
21 responses to the Specially Prepared Interrogatories were due December 20, 2016. Plaintiffs’ counsel
22 requested various extensions of time in which to respond, and Defendants’ counsel readily provided the
23 requested extensions. After not receiving any responses to the outstanding Interrogatories, Defense
24 counsel sent to Plaintiffs’ counsel a meet and confer correspondence dated January 26, 2017, and
25 requested that responses be provided within ten (10) days of the correspondence. (Ornelas Decl., { 6,
26 Exhibit E).
27 On January 31, 2017, Ms. Licea, Paralegal for Plaintiff's counsel, emailed Defense
28 counsel seeking another extension for Plaintiff to respond to the outstanding discovery responses until
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February 16, 2017. (Ornelas Decl., § 7, Exhibit F). Defense counsel agreed to extend the discovery due
date for K. BUNNEL to provide her responses and responsive documents to Defendants’ Request for
Production of Documents, Set One. (Id.).
After not receiving responses or responsive documents to Defendants’ Request for
Production of Documents, Set One by February 16, 2017, Plaintiff's counsel’s office sought another
extension. Defense counsel, Mr. Bradley A. Post, again granted another extension until March 8, 2017
for Plaintiffs to respond to the outstanding Interrogatories. (Ornelas Decl., 8, Exhibit G). The Plaintiffs
failed to respond by March 8, 2017. (Omelas Decl. 9). On March 16, 2017, Defense counsel received
an email from Ms. Licea, again seeking another extension until March 24, 2017. (Omelas Decl., § 10,
10 Exhibit G). On March 17, 2017, Defense counsel emailed Ms. Licea, granting a final extension for
11 Plaintiff to respond by March 24, 2017. (Ornelas Decl., ¥ 11, Exhibit G).
12) On or around March, 24, 2017, Defense counsel finally received (1) Plaintiff, Bill
13 Bunnell’s Responses to Form Interrogatories (2) Plaintiff, Kym Bunnell’s Responses to Form
14 Interrogatories, (3) Plaintiff's Bill Bunnell’s Responses to Special Interrogatories and (4) Plaintiff, Kym
15 Bunnell’s Responses to Special Interrogatories. However, the responses provided were wholly
16) insufficient, and defense counsel sent a meet and confer letter on April 24, 2017 requesting that the
17) Plaintiffs supplement their responses within seven (7) days of the correspondence. (Omelas Decl., 13,
18 Exhibit M). No response whatsoever was received to the April 24, 2017 correspondence, and as of the
19] date of filing further answers to interrogatories have not be received. (Ormelas Decl., { 13). As such,
20 Defendants’ have no other choice than to file this motion. This is the second Motion to Compel that the
21 Defendants have had to file in light of the Plaintiffs’ failures to provide discovery.
22 II. ARGUMENT IN SUPPORT OF MOTION TO COMPEL
23
The Defendants are Entitled to Supplemental Responses to the
24 Plaintiffs’ Responses to Interrogatories Because the Information
Sought is Relevant and Not Privileged
25)
According to the Court in Fuss v. Superior Court of Los Angeles County, the goals of
26
discovery are as follows:
27
Mt
28
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(1) to give greater assistance to the parties in ascertaining the truth and in
checking and preventing perjury; (2) to provide an effective means of detecting
and exposing false, fraudulent and sham claims and defenses; (3) to make
available, in a simple, convenient and inexpensive way, facts which otherwise
could not be provide except with great difficulty; (4) to educate the parties in
advance of trial as to the real value of their claims and defenses, thereby
encouraging settlements; (5) to expedite litigation; (6) to safeguard against
surprise; (7) to prevent delay; (8) to simplify and narrow the issues; and, (9) to
expedite and facilitate both preparation and trial. (/d. at 815-816.)
273 Cal.App.2d 807 (1969).
To accomplish these goals the court has held that “for discovery purposes, information is
relevant if it might reasonably assist a party in evaluating a case, preparing for trial, or facilitating
10) settlement. Gonzalez v. Superior Court, 33 Cal.App.4", 1539, 1545 (1995). Admissibility is not the test
11 and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence.
favor of
12 Davies v. Superior Court (1984) 36 Cal.3d 291, 301. These rules are liberally applied in
Greyhound
13 discovery, and contrary to popular belief, fishing expeditions are permissible in some cases.
14 Corp. v. Superior Court (1961) 56 Cal.2d 355, 385.
1S Defendants have a right to “obtain discovery regarding any matter, not privileged, that is
16 relevant to the subject matter involved in the pending action.” Code Civ. Proc., §2017.010. The
and
17 Plaintiffs have an obligation under the Discovery Act to provide responses which are complete
18 straightforward. If an interrogatory cannot be answered completely, it must be answered to the full
Code
19 extent possible, and Plaintiffs must provide responsive information which is reasonably available.
26 Civ. Proc.,§ 2030.220.
21 Here, the Plaintiffs have waived any right to object to answering these interrogatories.
Secs. 2030.290(a), 2031.300(a), 2033.280(a); Demyer v. Costa Mesa Mobile Homes
22) See, e.g, CCP
23 Estates, 36 Cal. App.4" 393, 394 (1995). Despite Defendants’ cooperation and good faith effort to
to provide
24 provide the Plaintiffs with ample time to provide responses, the Plaintiffs have failed
25 acceptable responses to the Defendants’ form and Specially Prepared Interrogatories.
26 Given the extensive deficiencies in the Plaintiffs’ responses to discovery, each response
27 will be discussed separately, below.
28 Mt
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2 Plaintiff, Bill Bunnell’s Responses to Form Interrogatories are Incomplete and
Unresponsive, Thus Requiring Supplementation
B. BUNNELL provided wholly insufficient responses to the Form Interrogatories, and
for some Interrogatories, he failed to provide responses at all.
Form Interrogatory Number 7.1 requests B. BUNNELL to identify any “loss or damage
to a vehicle or other property to the incident.” (Emphasis added). B. BUNNELL’s response to form
Interrogatory Number 7.1 refers the Defendants to the response to Form Interrogatory Number 2.3,
which was simply an objection and stating that B. BUNNELL holds a California Driver’s License.
9
Clearly, this was not responsive, and Defendants requested supplement of same.
10}
Similarly, Form Interrogatory Number 7.2 requests information as any estimate received
1
12 as to any alleged property damage. Once again, B. BUNNELL references the response provided for
13 Interrogatory Number 2.3, which is not responsive (as it is simply an objection and stating that B.
14 BUNNELL holds a California Driver’s License). B. BUNNELL provided that same unresponsive
15
answer to Form Integratory 7.3. Thus, supplemental responses are needed to both of these
16]
Interrogatories.
17
In the response to Form Interrogatory Number 8.4, B. BUNNELL was asked to provide
18
19 information as to his monthly income at the time of the incident. B. BUNNELL stated:
20 We took monthly draws which varied from month to month depending on business. Kym fell
behind on my billing because she wasn’t able to access my home office or my regular office
21 (which became a holding tank for our clothes and other personal belongings [sic].
22
B. BUNNELL claims lost wages as part of his damages, and therefore must provide information as to
23)
his average monthly income at the time of the incident. If he took monthly draws from his company, he
24
needs to provide information as to the amounts of the draws before and after the incident to show any
25
changes in the amount of income that he was able to take from his company. As such, Defendants
26
27 request that B. BUNNELL be ordered to provide additional responses to this interrogatory.
28
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For the response to Form Interrogatory Number 9.1, the Defendants were referred to
review an excel spreadsheet. However, no such spreadsheet was annexed to the responses. As such, the
Plaintiffs need to supplement to provide the responsive information.
Form Interrogatory Number 9.2 requested B. BUNNELL to provide information for each
document that purports to show damages, and the identity of who has such documents in their
possession. B. BUNNELL simply responded “Yes, receipts.” However, the remainder of the
information requested in this interrogatory was not provided.
For Form Interrogatory Number 12.6, B. BUNNELL failed to provide ali the information
10 requested in that interrogatory. B. BUNNELL was asked to supplement, which he failed to do. The
11
same is true for B. BUNNELL’s response to Form Interrogatory 14.1.
12
Finally, B. BUNNELL failed to provide any response to Form Interrogatories 50.1-50.6,
13
and as such, responses are required to same.
14]
The Defendants request that this Court Order B. BUNNELL to provide supplemental
15)
16| responses to the above-described interrogatories within ten (10) days of a hearing on this Motion.
17| 3. Plaintiff, Kym Bunnell’s Responses to Form Interrogatories are Incomplete and
Unresponsive, Thus Requiring Supplementation
18
K. BUNNELL’s did not provide complete responses to the Form Interrogatories. In the
19
20 meet and confer correspondence, dated April 24, 2017, various deficiencies were brought to Plaintiffs’
21 counsel’s attention. To date, none of those deficiencies have been addressed.
22
Form Interrogatory Number 8.4 was answered as if B. BUNNELL was the responding
23
party. K. BUNNELL was asked to review, and provide a response from her perspective.
24
For the response to Form Interrogatory Number 9.1, the Defendants were referred to
25
eview an excel spreadsheet. However, no such spreadsheet was annexed to the responses. As such, the
26
27 Plaintiffs need to supplement to provide the responsive information.
28
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Form Interrogatory Number 9.2 requested K. BUNNELL to provide information for each
document that purports to show damages, and the identity of who has such documents in their
possession. K. BUNNELL simply responded “Yes, receipts and profit & loss statements.” However,
the remainder of the information requested in this interrogatory was not provided.
Finally, for Form Interrogatory Number 12.6, K. BUNNELL failed to provide all the
information requested in that interrogatory. K. BUNNELL was asked to supplement, which she failed to
do.
3 Plaintiff, Bill Bunnell’s Responses to Specially Prepared Interrogatories are
Incomplete and Unresponsive, Thus Requiring Supplementation
10
Special Interrogatory Number 1, asks B. BUNNELL to:
11
12 Please state all facts that support your contention, as alleged in your Complaint, that Great
Valley Realtor’s, Inc., knew that the residence at 2440 Kaslin Drive, Modesto, CA, was infested
13 with harmful mold, mildew and/or fungi, at any point in time.
14 In his response to Special Interrogatory Number 1, B. BUNNELL fails to provide a
15
responsive answer and instead states “Plaintiff cannot respond to this request at this time as discovery
16
and investigation is continuing. Plaintiff reserves the right to amend his answers.” While it is true that
17
discovery can always yield additional information, the Plaintiffs have made a specific allegation against
18
that they believe supports the allegation. Therefore,
19) the Defendants, and need to provide the information
20 the response to Special Interrogatories Number 1 should be supplemented.
21 Similarly, B. BUNNELL failed to provide (in Special Interrogatories Numbers 2, 3, 7 and
22
8) information as to the individuals who may have knowledge regarding the specific allegations alleged
23
against the Defendants, and the records that are believed to support same. Again, this is information that
24
the Plaintiffs should provide to the extent available, and simply cannot state that discovery is “ongoing.”
25
Supplementation to Special Interrogatories Numbers 2, 3, 7, 8 is also required.
26]
27 The Special Interrogatory number 4 asked as to the believed liability of the Defendant,
28 Troy Wright. However, B. BUNNELL answered as if the interrogatory was asking as to the sellers
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liability. Presumably, B. BUNNELL was confused because the propounding Defendant (Troy Wright)
has the same last name as the Defendant Sellers (Jason Wright and Gina Wright). B. BUNNELL was
asked to review his response to this Interrogatory, and provide the appropriate supplementation. Again,
this was not done.
B. BUNNELL was asked to clarify the response to Special Interrogatory Number 5. This
interrogatory asks for the individuals to be identified who have knowledge that “Troy Wright knew that
the resident at 2440 Kaslin Drive, Modesto, CA, was infested with harmful mold, mildew and/or fungi.”
Instead of answering this specific interrogatory, the Plaintiffs seem to have provided each and every
10 individual the Plaintiffs may have told about the mold. Supplementation was requested, and B.
ll
BUNNELL ignored these requests.
12)
4 Plaintiff, Kym Bunnell’s Responses to Specially Prepared Interrogatories are
13 Incomplete and Unresponsive, Thus Requiring Supplementation
14
As K. BUNNELL’s responses to her Special Interrogatories are identical to the answers
1S
as if originally stated herein the deficiencies
16) provided by B. BUNNELL, the Defendants incorporate
17 noted in the above-section as to “Plaintiff, Bill Bunnell’s, Responses to Special Interrogatories.”
18
Tl. PLAINTIFF HAS FAILED TO APPROPRIATELY RESPOND TO DEFENDANTS’
19
JUDICIAL AND SPECIALLY PREPARED INTERROGATORIES AND HAVE FAILED
20 TO PARTICIPATE IN A GOOD FAITH MEET AND CONFER PROCESS, FORCING
DEFENDANTS TO FILE THIS MOTION AND MANDATING SANCTIONS AS A
21 RESULT
22 The Court has authority to impose a monetary sanction when it determines a party has
23 misused the discovery process. Code Civ. Proc. § 2023.030(a). The misuse of the discovery process
24 includes failing to submit to an authorized method of discovery (Code Civ. Proc. § 2023.030(d); making
25 an evasive response to discovery (Code Civ. Proc. § 2023.030(f)); and failing to confer in a reasonable
26 and good faith attempt to resolve the dispute. Code Civ. Proc. § 2023.030(i). Notwithstanding the
27 outcome of the particular motion, the court shall impose a monetary sanction ordering that any party or
28 attorney who fails to confer as required pay the reasonable expenses, including attorney’s fees, incurred
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by anyone as a result of that conduct. Code Civ. Proc. § 2023.020. The monetary sanction imposed may
be equal to those reasonable expenses, including attorney’s fees, incurred by anyone as a result of the
conduct constituting a misuse of the discovery process. Code Civ. Proc. § 2023.030(a).
As detailed above, the Plaintiffs continue to misuse the discovery process by failing to
provide timely responses to the Judicial Interrogatories and Specially Prepared Interrogatories. Then,
when responses were finally provided, the responses failed to provide the requested information. In an
effort to resolve this dispute and avoid the necessity of filing this motion, Defendants met and conferred
with Plaintiff's counsel and provided numerous extensions for Plaintiff's to provide their responses.
However, Plaintiffs have not provided any supplementation. Further, Plaintiffs counsel has not even
10 reached out to Defense counsel to discuss. Defendants have undergone all of the aforementioned
11 attempts, all in an effort to avoid the filing of this instant motion. Thus, the requested monetary
12 sanctions against the Plaintiffs are appropriate here. Defendants are severely prejudiced by the
13 Plaintiff's continued failures to provide basic discovery because it severely inhibits Defense counsel’s
14 ability to prepare the case for settlement and/or trial. The Plaintiffs has no justification for failing to
15 provide the requested information. All of this is basic discovery that should not require involvement of
16) the Court.
17 This is the second motion to compel that the Defendants have needed to file relative to
18 the Plaintiffs’ discovery responses. Sanctions are needed and proper in Order to reimburse the
19) Defendants for the fees and costs they have endured to obtain information that should otherwise be
20) readily provided during the discovery process. Further, sanctions are an appropriate motivator for the
21 Plaintiffs to abide by the Civil Code going forward.
22 Therefore, it is respectfully requested that the Court impose sanctions against the
23 Plaintiffs. Based on the amount of work necessary to bring this motion, $1,270.00, in sanctions is
24 warranted. (Ornelas Decl., q 14).
25 Mf
26 Mt
27 Mi
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Iv.
CONCLUSION
Based on the foregoing, Defendants, respectfully request this Court to grant its Motion to
Compel, and Order:
1 B. BUNNELL provide supplemental responses to Form Interrogatories numbers
71, 7.2, 7.3, 8.4, 9.1, 9.2, 12.6, 14.1 and 50.1-50.6 within ten (10) days of a hearing on this matter;
2 K. BUNNELL provide supplemental responses to Form Interrogatories numbers
8.4, 9.1, 9.2, and 12.6 within ten (10) days of a hearing on this matter;
3 B. BUNNELL provide supplemental responses to Specially Prepared
10
Interrogatories Numbers 1-4, 7 and 8 within ten (10) days of a hearing on this matter;
11 4 provide supplemental responses to Specially Prepared
K. BUNNELL
12)
Interrogatories Numbers 1-4, 7 and 8 within ten (10) days of a hearing on this matter;
13
5 That Plaintiffs pay monetary sanctions to Defendants and counsel in the amount
14
of $1,712.50, to be paid within ten (10) days of the hearing on this matter.
15 DECLARATION OF SARAH A. ORNELAS
16
I, Sarah A. Ornelas, declare:
17 I am
1 I am an attorney at law duly licensed to practice in the State of California.
18
an attorney at Borton Petrini, LLP, attorneys of record for Defendants Great Valley Realtors, Inc., Troy
19) If called upon as a witness, I can
Wright and Audrey Goesch (collectively referred to as “Defendants”).
20)
and will competently testify to the following from my own personal knowledge
21 15, 2015, Plaintiffs, BILL BUNNELL and KYM BUNNELL
2. On December
22 and K.
(wrongly named Kim Bunnell in this action), (hereinafter referred to as “K. BUNNELL”
23 filed the original Complaint against
BUNNELL, respectively, and collectively as “Plaintiffs”)
24 INC., AUDREY GOESCH, TROY WRIGHT, JASON
Defendants, GREAT VALLEY REALTORS
25:
WRIGHT, GINA WRIGHT, CENTURY 21 M&M AND ASSOCIATES, TAMI GOSSELIN, DAMON
26|
SALINAS, DUNCAN LYONS, and AMERISPEC INSPECTION SERVICES.
27 Subsequently, on April 4, 2016 Plaintiffs filed a First Amended Complaint
3
8
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Dealing; Concealment; Breach of Duty to Disclose; Breach of Duty to Inspect and Disclose; Breach of
Fiduciary Duty; and Negligence. As against Defendants, GREAT VALLEY REALTORS INC,
AUDREY GOESCH, and TROY WRIGHT (hereinafter collectively referred to as “Defendants”),
Plaintiff alleged: Concealment and Breach of Duty to Inspect and Disclose.
4. Thereafter, on January 1, 2017 Defendants, PREMIER VALLEY, INC. dba
CENTURY 21 M&M AND ASSOCIATES and TAMI GOSSELIN filed a Cross-Complaint against
TROY WRIGHT, JASON WRIGHT, GINA WRIGHT, DUNCAN LYONS and AMERISPEC
INSPECTION SERVICES for Indemnification.
5 On October 18, 2016 Defendants served Form Interrogatories on B. Bunnell and
10} K. Bunnell. Attached hereto as Exhibits A and B, respectively. On November 15, 2106, Defendants
11 served “Specially Prepared Interrogatories to Plaintiff, Bill Bunnell, Set One (1)” and “Specially
12 Prepared Interrogatories to Plaintiff, Kim Bunnell, Set One (1).” Attached hereto as Exhibits C and D,
13 respectively.
14 6 Plaintiffs responses to the Form Interrogatories were due on November 22, 2017,
15 and responses to the Specially Prepared Interrogatories were due on December 20, 2017. After not
16 receiving timely responses to the above-described Interrogatories, Defense counsel sent to Plaintiffs’
17 counsel a meet and confer correspondence dated January 26, 2017, inquiring about the past-due
18 discovery responses and requested that responses be provided by February 5, 2017 (10 days from the
19 date of the January 26, 2017 correspondence). Attached hereto as Exhibit E is a true and correct copy of
20) Defense counsel’s January 26, 2017 letter.
21 7 On January 31, 2017, Ms. Licea, Paralegal for Plaintiff's counsel, emailed
22 Defense counsel seeking another extension for Plaintiff to respond to the outstanding discovery
23 responses until February 16, 2017. Defense counsel agreed to extend the discovery due date. Attached
24 hereto as Exhibit F is a true and correct copy of Ms. Licea’s January 31, 2017 email.
25 8 After not providing responses by February 16, 2017, Plaintiffs’ counsel’s office
26 sought another extension. Defense counsel, Mr. Bradley A. Post, again granted another extension until
27 March 8, 2017 for Plaintiffs to answer the outstanding Interrogatories.
28 Mt
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9 The Plaintiffs failed to respond by March 8, 2017.
10. On March 16, 2017, Defense counsel received an email from Ms. Licea, again
seeking yet another extension until March 24, 2017. Attached hereto as Exhibit G is a true and correct
copy of Ms. Licea’s March 16, 2017 email.
li. On March 17, 2017, Defense counsel emailed Ms. Licea, granting a final
extension for Plaintiff to respond by March 24, 2017. Attached hereto as Exhibit H is a true and correct
copy of defense counsel’s March 17, 2017 email.
12. On or around March 24, 2017, Defendants finally received (1) Plaintiff, Bill
Bunnell’s Responses to Form Interrogatories (2) Plaintiff, Kym Bunnell’s Responses to Form
10 Interrogatories, (3) Plaintiff's Bill Bunnell’s Responses to Special Interrogatories and (4) Plaintiff, Kym
ll Bunnell’s Responses to Special Interrogatories. Attached hereto as Exhibits I-L, respectively.
12) 13. Upon review of (1) Plaintiff, Bill Bunnell’s Responses to Form Interrogatories (2)
13 Plaintiff, Kym Bunnell’s Responses to Form Interrogatories, (3) Plaintiffs Bill Bunnell’s Responses to
14 Special Interrogatories and (4) Plaintiff, Kym Bunnell’s Responses to Special Interrogatories, it was
15 determined that the responses were insufficient and a majority of the responses failed to provide the
16 requested information. Therefore, on April 24, 2017, a detailed meet and confer correspondence was
17 sent to Plaintiffs’ counsel outlining the various issues with the Plaintiffs responses. The correspondence
18 requested supplemental answers within seven (7) days.. Plaintiffs’ counsel was also invited to reach out
19 to Defendants attorney should she wish to discuss the pending issues further. A copy of the April 24,
20 2017 meet and confer letter is attached hereto as Exhibit M, As of the date of this Declaration, not
21 supplemental responses have been received, nor has Plaintiffs’ counsel responded to the April 24, 2017
22 correspondence.
23 14. Given the numerous times that the Plaintiffs have failed to honor their duty to
24 participate in good faith in the discovery process and provide responsive answers to Defendants’
25 discovery requests, I have spent more than three and a half hours reviewing the file and preparing this
26 Notice, Motion, Declaration, and Proposed Order. I spent an additional two hours preparing the
27 Separate Statement in Support of the Defendants’ Motion to Compel. I am a Senior Litigation Attorney
28 at Borton Petrini, LLP and my reasonable hourly rate is $295.00 per hour. My firm incurred a $60.00
bN612217085
Npleadings\mt 13
ce srogs and NOTICE OF MOTION AND MOTION TO COMPEL
frogs docx
1| filing fee and $30.00 court reporter fee for this motion as well as fees associated with service, copy
2|| costs, and postage. This amounts to $1,712.50 in attorney fees and costs associated solely with this
3]| particular motion. This is the second Motion to Compel that Defendants have needed to file in light of
4]| the Plaintiffs’ failure to produce timely and responsive discovery. Therefore, Defendants are seeking
5|| $1,712.50 in sanctions against the Plaintiffs.
6 I declare under penalty of perjury under the laws of the State of California that the
7|| foregoing is true and correct.
8 Executed this day of May 2017, at Modesto, California.
9
10 Sc
Sarah Ornblas
11 Declarant
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hAGL221\7085
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c srogs and NOTICE OF MOTION AND MOTION TO COMPEL
frogs.docx
PROOF OF SERVICE (Code Civ. Proc., §§ 1013a)
STATE OF CALIFORNIA, COUNTY OF STANISLAUS
I am employed in the County of STANISLAUS, State of California. Iam over the age of 18 and
not a party to the within action; my business address is Borton Petrini, LLP, 201 Needham Street,
Modesto, California 95354.
On May —
S > 2017, I served the foregoing document described as DEFENDANTS’
NOTICE OF MOTION AND MOTION TO COMPEL PLAINTIFFS, TO PROVIDE
SUPPLEMENTAL RESPONSES TO (1) PLAINTIFF, BILL BUNNELL’S RESPONSES
TO FORM INTERROGATORIES, (2) PLAINTIFF, KYM BUNNELL’S RESPONSES
TO FORM INTERROGATORIES (3) PLAINTIFF’S BILL BUNNELL’S RESPONSES
TO SPECIAL INTERROGATORIES AND (4) PLAINTIFF, KYM BUNNELL’S
10 RESPONSES
TO SPECIAL INTERROGATORIES; MEMORANDUM OF POINTS
AND AUTHORITIES; REQUEST FOR SANCTIONS; AND DECLARATION OF
11 SARAH A. ORNELAS IN SUPPORT THEREOF on the other parties in this action by placing
the true copies thereof enclosed in sealed envelopes addressed as listed.
12
13 YO By MAIL: As follows: I am “readily familiar” with the firm's practice of collection and
Under that practice the
processing correspondence for mailing with the United States Postal Service.
14 envelope would be deposited with U.S. postal service on that same day with postage thereon fully
prepaid at Modesto, California in the ordinary course of business.
15 r
BY FACSIMILE: I caused each document to be delivered by electronic facsimile to the listed
16 above. The facsimile machine I used complied with California Rules of Court, Rule 2.301 and
no error was reported by the machine.
Preview
{ Bradley A. Post, Esq., SBN 127028 Sarah A. Ornelas, Esq., SBN 258890 R SBN 294350 Claudia Aceves, Esq., BORTON PETRINI, LLP 201 Needham Street FILED Modesto, California 95354 TNA -S A Tel: (209) 576-1701 Fax: (209) 527-9753 F STAI gUR gory cy (Lifts Attorneys for Defendants gas PUTY Great Valley Realtors, Inc., Troy Wright and Audrey Goesch ane a APe Te HR SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF STANISLAUS — 10 BILL BUNNELL and KIM BUNNELL, Case No. 2018041 ll Plaintiffs, DEFENDANTS’ NOTICE OF MOTION 12 AND MOTION TO COMPEL Vv. PLAINTIFFS, TO PROVIDE 13 GREAT VALLEY REALTORS INC, AUDREY SUPPLEMENTAL RESPONSES TO (1) 14 GOESCH, TROY WRIGHT, JASON WRIGHT, PLAINTIFF, BILL BUNNELL’S GINA WRIGHT, CENTURY 21 M&M AND RESPONSES TO FORM * 15 ASSOCIATES, TAMI GOSSELIN, DAMON INTERROGATORIES, (2) PLAINTIFF, SALINAS, DUNCAN LYONS, AMERISPEC 16} INSPECTION SERVICES and DOES | through KYM BUNNELL’S RESPONSES TO 50, inclusive, FORM INTERROGATORIES (3) 17 PLAINTIFF’S BILL BUNNELL’S Defendants. RESPONSES TO SPECIAL 18 INTERROGATORIES AND (4) 19) PLAINTIFF, KYM BUNNELL’S RESPONSES TO SPECIAL 20 INTERROGATORIES; MEMORANDUM 21 OF POINTS AND AUTHORITIES; REQUEST FOR SANCTIONS; AND 22 DECLARATION OF SARAH A. ORNELAS IN SUPPORT THEREOF 23 24 Date: June 6, 2017 “ Time: 8:30a.m. 25 Dept.: 24 4 Judge: Roger M. Beauchesne 26 [Filed concurrently with Defendants’ [Proposed] 27 AND ALL RELATED CROSS-ACTIONS Order and Defendants Separate Statement in Support of the Motion to Compel] 28 “| 6122117085, Nipleadings\mt c stogs and NOTICE OF MOTION AND MOTION TO COMPEL frogs.docx TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that Defendants, GREAT VALLEY REALTORS INC, AUDREY GOESCH, and TROY WRIGHT, hereby moves this Court for an order compelling Plaintiffs’ Bill Bunnell and Kym Bunnell (wrongly named as Kim Bunnell), to provide further responses to (1) Plaintiff, Bill Bunnell’s Responses to Form Interrogatories (2) Plaintiff, Kym Bunnell’s Responses to Form Interrogatories, (3) Plaintiffs Bill Bunnell’s Responses to Special Interrogatories and (4) Plaintiff, Kym Bunnell’s Responses to Special Interrogatories (collectively referred to as “the Interrogatories”). The hearing for this motion will take place on June 6, 2017, at the Superior Court of California, County of Stanislaus located at 801 10th Street, Modesto, California 95354, at 8:30 a.m., in Department 24. In 10 addition, Defendant is requesting sanctions against Plaintiff in the amount of $1,712.50. ll The authority for this motion is Code of Civil Procedure §§2031.300, 2023.010, 12 2023.030 and 1005(a). The motion will be based on this notice, the attached memorandum of points and 13 authorities, the Declaration of Sarah A. Ornelas, the attached exhibits, the Separate Statement in Support 14 of the Defendants’ Motion to Compel and any further evidence and argument that may be presented at 15 the time of this hearing. (D 16 Dated: May___, 2017 BORTON PET) RINI 17 By. >< 18} melas Attorneys fox Defendant, 19 GREAT VAL) Y REALTORS INC, UD REY GOESCH, and TROY WRIGHT 20 21 MEMORANDUM OF POINTS AND AUTHORITIES 22 23 I INTRODUCTION 24 This action stems from the Plaintiffs’ purchase of a home located at 2440 Kaslin Drive, 25 Modesto, California (the “Property”), and the presence of mold that was alleged discovered immediately 26 after the closing on the Property. 27 On December 15, 2015, Plaintiffs, BILL BUNNELL and KYM BUNNELL (wrongly 28 named in this action by the Plaintiffs’ as Kim Bunnell), (hereinafter referred to as “B. BUNNELL” and X61221\7085 Npleadingstmt 2 srogs and NOTICE OF MOTION AND MOTION TO COMPEL frogs.docx K. BUNNELL, respectively, and collectively as “Plaintiffs”) filed the original Complaint against Defendants, GREAT VALLEY REALTORS INC., AUDREY GOESCH, TROY WRIGHT, JASON WRIGHT, GINA WRIGHT, CENTURY 21 M&M AND ASSOCIATES, TAMI GOSSELIN, DAMON SALINAS, DUNCAN LYONS, and AMERISPEC INSPECTION SERVICES. (Declaration of Sarah A. Omelas, hereinafter “Ornelas Decl.,” | 2). Subsequently, on April 4, 2016 Plaintiffs filed a First Amended Complaint (hereinafter “FAC”) against, alleging Breach of Contract; Breach of Covenant of Good Faith and Fair Dealing; Concealment; Breach of Duty to Disclose; Breach of Duty to Inspect and Disclose; Breach of Fiduciary Duty; and Negligence. As against Defendants, GREAT VALLEY REALTORS INC, AUDREY GOESCH, and TROY WRIGHT (hereinafter collectively referred to as 10 “Defendants”), Plaintiffs alleged: Concealment and Breach of Duty to Inspect and Disclose. (Ornelas ll Decl., 13). Thereafter, on January 1, 2017 Defendants, PREMIER VALLEY, INC. dba CENTURY 21 12| M&M AND ASSOCIATES and TAMI GOSSELIN filed a Cross-Complaint against TROY WRIGHT, 13 JASON WRIGHT, GINA WRIGHT, DUNCAN LYONS and AMERISPEC INSPECTION SERVICES 14] for Indemnification. (Ornelas Deecl., J 4). 15 On October 18, 2016 Defendants served Form Interrogatories on B. Bunnell and K. 16 Bunnell. (Ornelas Decl., 5, Exhibits A and B, respectively). On November 15, 2016, Defendants served 17 “Specially Prepared Interrogatories to Plaintiff, Bill Bunnell, Set One (1)” and “Specially Prepared 18 Interrogatories to Plaintiff, Kim Bunnell, Set One (1).” (Omelas Decl., ] 5, Exhibits C and D, 19 respectively). 20 The responses to the Form Interrogatories were due on November 22, 2016, and the 21 responses to the Specially Prepared Interrogatories were due December 20, 2016. Plaintiffs’ counsel 22 requested various extensions of time in which to respond, and Defendants’ counsel readily provided the 23 requested extensions. After not receiving any responses to the outstanding Interrogatories, Defense 24 counsel sent to Plaintiffs’ counsel a meet and confer correspondence dated January 26, 2017, and 25 requested that responses be provided within ten (10) days of the correspondence. (Ornelas Decl., { 6, 26 Exhibit E). 27 On January 31, 2017, Ms. Licea, Paralegal for Plaintiff's counsel, emailed Defense 28 counsel seeking another extension for Plaintiff to respond to the outstanding discovery responses until :N61221\7085 Npleadings\mt 3 csrogs and NOTICE OF MOTION AND MOTION TO COMPEL frogs.docx February 16, 2017. (Ornelas Decl., § 7, Exhibit F). Defense counsel agreed to extend the discovery due date for K. BUNNEL to provide her responses and responsive documents to Defendants’ Request for Production of Documents, Set One. (Id.). After not receiving responses or responsive documents to Defendants’ Request for Production of Documents, Set One by February 16, 2017, Plaintiff's counsel’s office sought another extension. Defense counsel, Mr. Bradley A. Post, again granted another extension until March 8, 2017 for Plaintiffs to respond to the outstanding Interrogatories. (Ornelas Decl., 8, Exhibit G). The Plaintiffs failed to respond by March 8, 2017. (Omelas Decl. 9). On March 16, 2017, Defense counsel received an email from Ms. Licea, again seeking another extension until March 24, 2017. (Omelas Decl., § 10, 10 Exhibit G). On March 17, 2017, Defense counsel emailed Ms. Licea, granting a final extension for 11 Plaintiff to respond by March 24, 2017. (Ornelas Decl., ¥ 11, Exhibit G). 12) On or around March, 24, 2017, Defense counsel finally received (1) Plaintiff, Bill 13 Bunnell’s Responses to Form Interrogatories (2) Plaintiff, Kym Bunnell’s Responses to Form 14 Interrogatories, (3) Plaintiff's Bill Bunnell’s Responses to Special Interrogatories and (4) Plaintiff, Kym 15 Bunnell’s Responses to Special Interrogatories. However, the responses provided were wholly 16) insufficient, and defense counsel sent a meet and confer letter on April 24, 2017 requesting that the 17) Plaintiffs supplement their responses within seven (7) days of the correspondence. (Omelas Decl., 13, 18 Exhibit M). No response whatsoever was received to the April 24, 2017 correspondence, and as of the 19] date of filing further answers to interrogatories have not be received. (Ormelas Decl., { 13). As such, 20 Defendants’ have no other choice than to file this motion. This is the second Motion to Compel that the 21 Defendants have had to file in light of the Plaintiffs’ failures to provide discovery. 22 II. ARGUMENT IN SUPPORT OF MOTION TO COMPEL 23 The Defendants are Entitled to Supplemental Responses to the 24 Plaintiffs’ Responses to Interrogatories Because the Information Sought is Relevant and Not Privileged 25) According to the Court in Fuss v. Superior Court of Los Angeles County, the goals of 26 discovery are as follows: 27 Mt 28 16122117085 Npleadingstmt ¢ srogs and NOTICE OF MOTION AND MOTION TO COMPEL frogs.docx (1) to give greater assistance to the parties in ascertaining the truth and in checking and preventing perjury; (2) to provide an effective means of detecting and exposing false, fraudulent and sham claims and defenses; (3) to make available, in a simple, convenient and inexpensive way, facts which otherwise could not be provide except with great difficulty; (4) to educate the parties in advance of trial as to the real value of their claims and defenses, thereby encouraging settlements; (5) to expedite litigation; (6) to safeguard against surprise; (7) to prevent delay; (8) to simplify and narrow the issues; and, (9) to expedite and facilitate both preparation and trial. (/d. at 815-816.) 273 Cal.App.2d 807 (1969). To accomplish these goals the court has held that “for discovery purposes, information is relevant if it might reasonably assist a party in evaluating a case, preparing for trial, or facilitating 10) settlement. Gonzalez v. Superior Court, 33 Cal.App.4", 1539, 1545 (1995). Admissibility is not the test 11 and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. favor of 12 Davies v. Superior Court (1984) 36 Cal.3d 291, 301. These rules are liberally applied in Greyhound 13 discovery, and contrary to popular belief, fishing expeditions are permissible in some cases. 14 Corp. v. Superior Court (1961) 56 Cal.2d 355, 385. 1S Defendants have a right to “obtain discovery regarding any matter, not privileged, that is 16 relevant to the subject matter involved in the pending action.” Code Civ. Proc., §2017.010. The and 17 Plaintiffs have an obligation under the Discovery Act to provide responses which are complete 18 straightforward. If an interrogatory cannot be answered completely, it must be answered to the full Code 19 extent possible, and Plaintiffs must provide responsive information which is reasonably available. 26 Civ. Proc.,§ 2030.220. 21 Here, the Plaintiffs have waived any right to object to answering these interrogatories. Secs. 2030.290(a), 2031.300(a), 2033.280(a); Demyer v. Costa Mesa Mobile Homes 22) See, e.g, CCP 23 Estates, 36 Cal. App.4" 393, 394 (1995). Despite Defendants’ cooperation and good faith effort to to provide 24 provide the Plaintiffs with ample time to provide responses, the Plaintiffs have failed 25 acceptable responses to the Defendants’ form and Specially Prepared Interrogatories. 26 Given the extensive deficiencies in the Plaintiffs’ responses to discovery, each response 27 will be discussed separately, below. 28 Mt \61221\7085 I\pleadings\mt e srogs and NOTICE OF MOTION AND MOTION TO COMPEL frogs.docx 2 Plaintiff, Bill Bunnell’s Responses to Form Interrogatories are Incomplete and Unresponsive, Thus Requiring Supplementation B. BUNNELL provided wholly insufficient responses to the Form Interrogatories, and for some Interrogatories, he failed to provide responses at all. Form Interrogatory Number 7.1 requests B. BUNNELL to identify any “loss or damage to a vehicle or other property to the incident.” (Emphasis added). B. BUNNELL’s response to form Interrogatory Number 7.1 refers the Defendants to the response to Form Interrogatory Number 2.3, which was simply an objection and stating that B. BUNNELL holds a California Driver’s License. 9 Clearly, this was not responsive, and Defendants requested supplement of same. 10} Similarly, Form Interrogatory Number 7.2 requests information as any estimate received 1 12 as to any alleged property damage. Once again, B. BUNNELL references the response provided for 13 Interrogatory Number 2.3, which is not responsive (as it is simply an objection and stating that B. 14 BUNNELL holds a California Driver’s License). B. BUNNELL provided that same unresponsive 15 answer to Form Integratory 7.3. Thus, supplemental responses are needed to both of these 16] Interrogatories. 17 In the response to Form Interrogatory Number 8.4, B. BUNNELL was asked to provide 18 19 information as to his monthly income at the time of the incident. B. BUNNELL stated: 20 We took monthly draws which varied from month to month depending on business. Kym fell behind on my billing because she wasn’t able to access my home office or my regular office 21 (which became a holding tank for our clothes and other personal belongings [sic]. 22 B. BUNNELL claims lost wages as part of his damages, and therefore must provide information as to 23) his average monthly income at the time of the incident. If he took monthly draws from his company, he 24 needs to provide information as to the amounts of the draws before and after the incident to show any 25 changes in the amount of income that he was able to take from his company. As such, Defendants 26 27 request that B. BUNNELL be ordered to provide additional responses to this interrogatory. 28 N6 122107085 [ipleadings\mt ¢ srogs and NOTICE OF MOTION AND MOTION TO COMPEL frogs.docx For the response to Form Interrogatory Number 9.1, the Defendants were referred to review an excel spreadsheet. However, no such spreadsheet was annexed to the responses. As such, the Plaintiffs need to supplement to provide the responsive information. Form Interrogatory Number 9.2 requested B. BUNNELL to provide information for each document that purports to show damages, and the identity of who has such documents in their possession. B. BUNNELL simply responded “Yes, receipts.” However, the remainder of the information requested in this interrogatory was not provided. For Form Interrogatory Number 12.6, B. BUNNELL failed to provide ali the information 10 requested in that interrogatory. B. BUNNELL was asked to supplement, which he failed to do. The 11 same is true for B. BUNNELL’s response to Form Interrogatory 14.1. 12 Finally, B. BUNNELL failed to provide any response to Form Interrogatories 50.1-50.6, 13 and as such, responses are required to same. 14] The Defendants request that this Court Order B. BUNNELL to provide supplemental 15) 16| responses to the above-described interrogatories within ten (10) days of a hearing on this Motion. 17| 3. Plaintiff, Kym Bunnell’s Responses to Form Interrogatories are Incomplete and Unresponsive, Thus Requiring Supplementation 18 K. BUNNELL’s did not provide complete responses to the Form Interrogatories. In the 19 20 meet and confer correspondence, dated April 24, 2017, various deficiencies were brought to Plaintiffs’ 21 counsel’s attention. To date, none of those deficiencies have been addressed. 22 Form Interrogatory Number 8.4 was answered as if B. BUNNELL was the responding 23 party. K. BUNNELL was asked to review, and provide a response from her perspective. 24 For the response to Form Interrogatory Number 9.1, the Defendants were referred to 25 eview an excel spreadsheet. However, no such spreadsheet was annexed to the responses. As such, the 26 27 Plaintiffs need to supplement to provide the responsive information. 28 6122197085 NNpleadingstmt ce srogs and NOTICE OF MOTION AND MOTION TO COMPEL frogs.docx Form Interrogatory Number 9.2 requested K. BUNNELL to provide information for each document that purports to show damages, and the identity of who has such documents in their possession. K. BUNNELL simply responded “Yes, receipts and profit & loss statements.” However, the remainder of the information requested in this interrogatory was not provided. Finally, for Form Interrogatory Number 12.6, K. BUNNELL failed to provide all the information requested in that interrogatory. K. BUNNELL was asked to supplement, which she failed to do. 3 Plaintiff, Bill Bunnell’s Responses to Specially Prepared Interrogatories are Incomplete and Unresponsive, Thus Requiring Supplementation 10 Special Interrogatory Number 1, asks B. BUNNELL to: 11 12 Please state all facts that support your contention, as alleged in your Complaint, that Great Valley Realtor’s, Inc., knew that the residence at 2440 Kaslin Drive, Modesto, CA, was infested 13 with harmful mold, mildew and/or fungi, at any point in time. 14 In his response to Special Interrogatory Number 1, B. BUNNELL fails to provide a 15 responsive answer and instead states “Plaintiff cannot respond to this request at this time as discovery 16 and investigation is continuing. Plaintiff reserves the right to amend his answers.” While it is true that 17 discovery can always yield additional information, the Plaintiffs have made a specific allegation against 18 that they believe supports the allegation. Therefore, 19) the Defendants, and need to provide the information 20 the response to Special Interrogatories Number 1 should be supplemented. 21 Similarly, B. BUNNELL failed to provide (in Special Interrogatories Numbers 2, 3, 7 and 22 8) information as to the individuals who may have knowledge regarding the specific allegations alleged 23 against the Defendants, and the records that are believed to support same. Again, this is information that 24 the Plaintiffs should provide to the extent available, and simply cannot state that discovery is “ongoing.” 25 Supplementation to Special Interrogatories Numbers 2, 3, 7, 8 is also required. 26] 27 The Special Interrogatory number 4 asked as to the believed liability of the Defendant, 28 Troy Wright. However, B. BUNNELL answered as if the interrogatory was asking as to the sellers 6122117085 Npleadingsimt 8 c srogs and NOTICE OF MOTION AND MOTION TO COMPEL frogs.doex liability. Presumably, B. BUNNELL was confused because the propounding Defendant (Troy Wright) has the same last name as the Defendant Sellers (Jason Wright and Gina Wright). B. BUNNELL was asked to review his response to this Interrogatory, and provide the appropriate supplementation. Again, this was not done. B. BUNNELL was asked to clarify the response to Special Interrogatory Number 5. This interrogatory asks for the individuals to be identified who have knowledge that “Troy Wright knew that the resident at 2440 Kaslin Drive, Modesto, CA, was infested with harmful mold, mildew and/or fungi.” Instead of answering this specific interrogatory, the Plaintiffs seem to have provided each and every 10 individual the Plaintiffs may have told about the mold. Supplementation was requested, and B. ll BUNNELL ignored these requests. 12) 4 Plaintiff, Kym Bunnell’s Responses to Specially Prepared Interrogatories are 13 Incomplete and Unresponsive, Thus Requiring Supplementation 14 As K. BUNNELL’s responses to her Special Interrogatories are identical to the answers 1S as if originally stated herein the deficiencies 16) provided by B. BUNNELL, the Defendants incorporate 17 noted in the above-section as to “Plaintiff, Bill Bunnell’s, Responses to Special Interrogatories.” 18 Tl. PLAINTIFF HAS FAILED TO APPROPRIATELY RESPOND TO DEFENDANTS’ 19 JUDICIAL AND SPECIALLY PREPARED INTERROGATORIES AND HAVE FAILED 20 TO PARTICIPATE IN A GOOD FAITH MEET AND CONFER PROCESS, FORCING DEFENDANTS TO FILE THIS MOTION AND MANDATING SANCTIONS AS A 21 RESULT 22 The Court has authority to impose a monetary sanction when it determines a party has 23 misused the discovery process. Code Civ. Proc. § 2023.030(a). The misuse of the discovery process 24 includes failing to submit to an authorized method of discovery (Code Civ. Proc. § 2023.030(d); making 25 an evasive response to discovery (Code Civ. Proc. § 2023.030(f)); and failing to confer in a reasonable 26 and good faith attempt to resolve the dispute. Code Civ. Proc. § 2023.030(i). Notwithstanding the 27 outcome of the particular motion, the court shall impose a monetary sanction ordering that any party or 28 attorney who fails to confer as required pay the reasonable expenses, including attorney’s fees, incurred 46122117085 N\pleadings\mt 9 ¢ srogs and NOTICE OF MOTION AND MOTION TO COMPEL frogs.docx by anyone as a result of that conduct. Code Civ. Proc. § 2023.020. The monetary sanction imposed may be equal to those reasonable expenses, including attorney’s fees, incurred by anyone as a result of the conduct constituting a misuse of the discovery process. Code Civ. Proc. § 2023.030(a). As detailed above, the Plaintiffs continue to misuse the discovery process by failing to provide timely responses to the Judicial Interrogatories and Specially Prepared Interrogatories. Then, when responses were finally provided, the responses failed to provide the requested information. In an effort to resolve this dispute and avoid the necessity of filing this motion, Defendants met and conferred with Plaintiff's counsel and provided numerous extensions for Plaintiff's to provide their responses. However, Plaintiffs have not provided any supplementation. Further, Plaintiffs counsel has not even 10 reached out to Defense counsel to discuss. Defendants have undergone all of the aforementioned 11 attempts, all in an effort to avoid the filing of this instant motion. Thus, the requested monetary 12 sanctions against the Plaintiffs are appropriate here. Defendants are severely prejudiced by the 13 Plaintiff's continued failures to provide basic discovery because it severely inhibits Defense counsel’s 14 ability to prepare the case for settlement and/or trial. The Plaintiffs has no justification for failing to 15 provide the requested information. All of this is basic discovery that should not require involvement of 16) the Court. 17 This is the second motion to compel that the Defendants have needed to file relative to 18 the Plaintiffs’ discovery responses. Sanctions are needed and proper in Order to reimburse the 19) Defendants for the fees and costs they have endured to obtain information that should otherwise be 20) readily provided during the discovery process. Further, sanctions are an appropriate motivator for the 21 Plaintiffs to abide by the Civil Code going forward. 22 Therefore, it is respectfully requested that the Court impose sanctions against the 23 Plaintiffs. Based on the amount of work necessary to bring this motion, $1,270.00, in sanctions is 24 warranted. (Ornelas Decl., q 14). 25 Mf 26 Mt 27 Mi 28 Mt bN6122147085 Npleadings\mt 10 ¢ srogs and NOTICE OF MOTION AND MOTION TO COMPEL frogs. docx Iv. CONCLUSION Based on the foregoing, Defendants, respectfully request this Court to grant its Motion to Compel, and Order: 1 B. BUNNELL provide supplemental responses to Form Interrogatories numbers 71, 7.2, 7.3, 8.4, 9.1, 9.2, 12.6, 14.1 and 50.1-50.6 within ten (10) days of a hearing on this matter; 2 K. BUNNELL provide supplemental responses to Form Interrogatories numbers 8.4, 9.1, 9.2, and 12.6 within ten (10) days of a hearing on this matter; 3 B. BUNNELL provide supplemental responses to Specially Prepared 10 Interrogatories Numbers 1-4, 7 and 8 within ten (10) days of a hearing on this matter; 11 4 provide supplemental responses to Specially Prepared K. BUNNELL 12) Interrogatories Numbers 1-4, 7 and 8 within ten (10) days of a hearing on this matter; 13 5 That Plaintiffs pay monetary sanctions to Defendants and counsel in the amount 14 of $1,712.50, to be paid within ten (10) days of the hearing on this matter. 15 DECLARATION OF SARAH A. ORNELAS 16 I, Sarah A. Ornelas, declare: 17 I am 1 I am an attorney at law duly licensed to practice in the State of California. 18 an attorney at Borton Petrini, LLP, attorneys of record for Defendants Great Valley Realtors, Inc., Troy 19) If called upon as a witness, I can Wright and Audrey Goesch (collectively referred to as “Defendants”). 20) and will competently testify to the following from my own personal knowledge 21 15, 2015, Plaintiffs, BILL BUNNELL and KYM BUNNELL 2. On December 22 and K. (wrongly named Kim Bunnell in this action), (hereinafter referred to as “K. BUNNELL” 23 filed the original Complaint against BUNNELL, respectively, and collectively as “Plaintiffs”) 24 INC., AUDREY GOESCH, TROY WRIGHT, JASON Defendants, GREAT VALLEY REALTORS 25: WRIGHT, GINA WRIGHT, CENTURY 21 M&M AND ASSOCIATES, TAMI GOSSELIN, DAMON 26| SALINAS, DUNCAN LYONS, and AMERISPEC INSPECTION SERVICES. 27 Subsequently, on April 4, 2016 Plaintiffs filed a First Amended Complaint 3 8 346122197085 (hereinafter “FAC”) against , alleging Breach of Contract; Breach of Covenant of Good Faith and Fair Npleadings\mt u c stogs and NOTICE OF MOTION AND MOTION TO COMPEL frogs.docx Dealing; Concealment; Breach of Duty to Disclose; Breach of Duty to Inspect and Disclose; Breach of Fiduciary Duty; and Negligence. As against Defendants, GREAT VALLEY REALTORS INC, AUDREY GOESCH, and TROY WRIGHT (hereinafter collectively referred to as “Defendants”), Plaintiff alleged: Concealment and Breach of Duty to Inspect and Disclose. 4. Thereafter, on January 1, 2017 Defendants, PREMIER VALLEY, INC. dba CENTURY 21 M&M AND ASSOCIATES and TAMI GOSSELIN filed a Cross-Complaint against TROY WRIGHT, JASON WRIGHT, GINA WRIGHT, DUNCAN LYONS and AMERISPEC INSPECTION SERVICES for Indemnification. 5 On October 18, 2016 Defendants served Form Interrogatories on B. Bunnell and 10} K. Bunnell. Attached hereto as Exhibits A and B, respectively. On November 15, 2106, Defendants 11 served “Specially Prepared Interrogatories to Plaintiff, Bill Bunnell, Set One (1)” and “Specially 12 Prepared Interrogatories to Plaintiff, Kim Bunnell, Set One (1).” Attached hereto as Exhibits C and D, 13 respectively. 14 6 Plaintiffs responses to the Form Interrogatories were due on November 22, 2017, 15 and responses to the Specially Prepared Interrogatories were due on December 20, 2017. After not 16 receiving timely responses to the above-described Interrogatories, Defense counsel sent to Plaintiffs’ 17 counsel a meet and confer correspondence dated January 26, 2017, inquiring about the past-due 18 discovery responses and requested that responses be provided by February 5, 2017 (10 days from the 19 date of the January 26, 2017 correspondence). Attached hereto as Exhibit E is a true and correct copy of 20) Defense counsel’s January 26, 2017 letter. 21 7 On January 31, 2017, Ms. Licea, Paralegal for Plaintiff's counsel, emailed 22 Defense counsel seeking another extension for Plaintiff to respond to the outstanding discovery 23 responses until February 16, 2017. Defense counsel agreed to extend the discovery due date. Attached 24 hereto as Exhibit F is a true and correct copy of Ms. Licea’s January 31, 2017 email. 25 8 After not providing responses by February 16, 2017, Plaintiffs’ counsel’s office 26 sought another extension. Defense counsel, Mr. Bradley A. Post, again granted another extension until 27 March 8, 2017 for Plaintiffs to answer the outstanding Interrogatories. 28 Mt 6122197085 Npleadings\nt 12 © srogs and NOTICE OF MOTION AND MOTION TO COMPEL frogs docx 9 The Plaintiffs failed to respond by March 8, 2017. 10. On March 16, 2017, Defense counsel received an email from Ms. Licea, again seeking yet another extension until March 24, 2017. Attached hereto as Exhibit G is a true and correct copy of Ms. Licea’s March 16, 2017 email. li. On March 17, 2017, Defense counsel emailed Ms. Licea, granting a final extension for Plaintiff to respond by March 24, 2017. Attached hereto as Exhibit H is a true and correct copy of defense counsel’s March 17, 2017 email. 12. On or around March 24, 2017, Defendants finally received (1) Plaintiff, Bill Bunnell’s Responses to Form Interrogatories (2) Plaintiff, Kym Bunnell’s Responses to Form 10 Interrogatories, (3) Plaintiff's Bill Bunnell’s Responses to Special Interrogatories and (4) Plaintiff, Kym ll Bunnell’s Responses to Special Interrogatories. Attached hereto as Exhibits I-L, respectively. 12) 13. Upon review of (1) Plaintiff, Bill Bunnell’s Responses to Form Interrogatories (2) 13 Plaintiff, Kym Bunnell’s Responses to Form Interrogatories, (3) Plaintiffs Bill Bunnell’s Responses to 14 Special Interrogatories and (4) Plaintiff, Kym Bunnell’s Responses to Special Interrogatories, it was 15 determined that the responses were insufficient and a majority of the responses failed to provide the 16 requested information. Therefore, on April 24, 2017, a detailed meet and confer correspondence was 17 sent to Plaintiffs’ counsel outlining the various issues with the Plaintiffs responses. The correspondence 18 requested supplemental answers within seven (7) days.. Plaintiffs’ counsel was also invited to reach out 19 to Defendants attorney should she wish to discuss the pending issues further. A copy of the April 24, 20 2017 meet and confer letter is attached hereto as Exhibit M, As of the date of this Declaration, not 21 supplemental responses have been received, nor has Plaintiffs’ counsel responded to the April 24, 2017 22 correspondence. 23 14. Given the numerous times that the Plaintiffs have failed to honor their duty to 24 participate in good faith in the discovery process and provide responsive answers to Defendants’ 25 discovery requests, I have spent more than three and a half hours reviewing the file and preparing this 26 Notice, Motion, Declaration, and Proposed Order. I spent an additional two hours preparing the 27 Separate Statement in Support of the Defendants’ Motion to Compel. I am a Senior Litigation Attorney 28 at Borton Petrini, LLP and my reasonable hourly rate is $295.00 per hour. My firm incurred a $60.00 bN612217085 Npleadings\mt 13 ce srogs and NOTICE OF MOTION AND MOTION TO COMPEL frogs docx 1| filing fee and $30.00 court reporter fee for this motion as well as fees associated with service, copy 2|| costs, and postage. This amounts to $1,712.50 in attorney fees and costs associated solely with this 3]| particular motion. This is the second Motion to Compel that Defendants have needed to file in light of 4]| the Plaintiffs’ failure to produce timely and responsive discovery. Therefore, Defendants are seeking 5|| $1,712.50 in sanctions against the Plaintiffs. 6 I declare under penalty of perjury under the laws of the State of California that the 7|| foregoing is true and correct. 8 Executed this day of May 2017, at Modesto, California. 9 10 Sc Sarah Ornblas 11 Declarant 12 13 14 15 16) 17 18 19 20 21 22 23 24 25 26] 27 28 hAGL221\7085 pleadings\mt 14 c srogs and NOTICE OF MOTION AND MOTION TO COMPEL frogs.docx PROOF OF SERVICE (Code Civ. Proc., §§ 1013a) STATE OF CALIFORNIA, COUNTY OF STANISLAUS I am employed in the County of STANISLAUS, State of California. Iam over the age of 18 and not a party to the within action; my business address is Borton Petrini, LLP, 201 Needham Street, Modesto, California 95354. On May — S > 2017, I served the foregoing document described as DEFENDANTS’ NOTICE OF MOTION AND MOTION TO COMPEL PLAINTIFFS, TO PROVIDE SUPPLEMENTAL RESPONSES TO (1) PLAINTIFF, BILL BUNNELL’S RESPONSES TO FORM INTERROGATORIES, (2) PLAINTIFF, KYM BUNNELL’S RESPONSES TO FORM INTERROGATORIES (3) PLAINTIFF’S BILL BUNNELL’S RESPONSES TO SPECIAL INTERROGATORIES AND (4) PLAINTIFF, KYM BUNNELL’S 10 RESPONSES TO SPECIAL INTERROGATORIES; MEMORANDUM OF POINTS AND AUTHORITIES; REQUEST FOR SANCTIONS; AND DECLARATION OF 11 SARAH A. ORNELAS IN SUPPORT THEREOF on the other parties in this action by placing the true copies thereof enclosed in sealed envelopes addressed as listed. 12 13 YO By MAIL: As follows: I am “readily familiar” with the firm's practice of collection and Under that practice the processing correspondence for mailing with the United States Postal Service. 14 envelope would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Modesto, California in the ordinary course of business. 15 r BY FACSIMILE: I caused each document to be delivered by electronic facsimile to the listed 16 above. The facsimile machine I used complied with California Rules of Court, Rule 2.301 and no error was reported by the machine.