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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)
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Email:Raymond@sandelmanlaw.com
By
Kets ROrCEY 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
M1 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 /
Attached Document: Declaration of Raymond L.
19 AND RELATED CROSS COMPLAINTS
Sandelman
20 /
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
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This motion
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ga 15 The motion is based on this notice, the pleadings, records and files in this action, the attached
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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 RL
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,
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The discovery that is the subject of this motion are attached to the
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AS 13 John Denton in his capacity as Trustee has not provided further responses to eight sets of
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17 16, 2020. There is a pattern of misuse of the discovery process.
18
2. The Court May Deem Matters Specified In Requests For Admissions As Admitted
19
Code of Civil Procedure section 2033.280 provides in part that:
20
If a party to whom requests for admission are directed fails to serve a timely
21 response, the following rules apply:
(a) The party to whom the requests for admission are directed waives any
22 objection to the requests, including one based on privilege or on the protection for
23 work product under Chapter 4 (commencing with Section 2018.010). . . .
(b) The requesting party may move for an order that the genuineness of any
24 documents and the truth of any matters specified in the requests be deemed admitted,
as well as for a monetary sanction under Chapter 7 (commencing with Section
25 2023.010).
26 (c) The court shall make this order, unless it finds that the party to whom the
requests for admission have been directed has served, before the hearing on the
27 motion, a proposed response to the requests for admission that is in substantial
compliance with Section 2033.100. It is mandatory that the court impose a monetary
28
MEMORANDUM OF POINTS AND AUTHORITIES
sanction under Chapter 7 (commencing with Section 2023.010) on the party or
attorney, or both, whose failure to serve a timely response to requests for admission
necessitated this motion.
If a responding party fails to file responses to the requests for admissions prior to the hearing
date of the motion to deem matters admitted, it is mandatory that an order be made deeming the
matters admitted.
4) [8:1375] Deemed admissions where no response filed: The statute states
“the court shall make this order” unless proposed responses “in substantial
compliance” with § 2033.220 are filed before the hearing. [CCP § 2033.280(c)
(emphasis added)]
“(W)oe betide the party who fails to serve responses before the hearing. In that
instance, the court has no discretion but to grant the admission motion, usually with
Be 10 fatal consequences for the defaulting party. One might call it ‘two strikes and you're
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<é out’ as applied to civil procedure.” [Demyer v. Costa Mesa Mobile Home Estates,
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B2o8 CA4th at 395-396, 42 CR2d at 261 (disapproved on other grounds in Wilcox v.
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PAB Birtwhistle (1999) 21 C4th 973, 983, 90 CR2d 260, 267, fn. 12)]
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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.
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i (f) At no time prior to February 29, 2020 did anyone make any NEGLIGENT
225
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(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).
ao 10 (d)(1) Notwithstanding subdivision (c), absent exceptional circumstances, the
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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
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10 The Court should (a) deem that the truth of matter and genuineness of document specified in
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(TYPE OR PRINT NAME) {SIGNATURE OF PARTY OR ATTORNEY) Page 1 of 1
Fo roved for Optional Ust AMENDED REQUESTS FOR ADMISSION fe of Civil Procedure,
‘ouncil of California CEB FEssential 56 04-95, 2098.010:2088.420, 2058 710
BiSE-020 tev. Janvary T2008) Forms:
Cook
exniprr_L
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
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12 (c) At no time prior to February 29, 2020 did anyone make any NEGLIGENT
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5
AMENDED FORM INTERROGATORIES - LIMITED CIVIL CASES (ECONOMIC LITIGATION)
PROOF OF SERVICE
I, Wendy Hoy, declare as follows:
Iam 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
8. 1241 E Mission Rd.
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and mailing, following our ordinary business practices. I am readily familiar with this
15) YOUR claim that performance of an agreement was excused.
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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
1 which mentions or refers to the REAL PROPERTY.
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and Wayne A. Cook,
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Sada Trustee of The Wayne A. Cook 1998 Family Trust Dated 12/29/98 which mentions
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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:
lam 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
exwem
(oc _
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 of a 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 —
| am 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@sandelmanlaw.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 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.
Please provide further verified response 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.
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
Cc: Andrew Morrissey
Subject: RE: Cook v. Niderost
Categories: Printed
We will provide further responses within the next 7-10 days.
~
From: Raymond
L. Sandelman [mailto:Raymond@sandelmaniaw.com] _
Sent: Friday, August 21, 2020 5:00 PM
To: Sara Knowles
Cc: Andrew Morrissey
Subject: Cook v. Niderost
Sara:
1am in receipt of the responses by John Denton, successor trustee to Wayne Cook’s third 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 17.1:
We need a response to Request for Admission No. 1 (b).
The response with respect to Request for Admission No. 1 (y) is evasive. It states that Dr. Fine extended consumer credit
with more than four installments. We need him to articulate the specific facts as to these transactions.
Parties, like witnesses, are required to state the truth, the whole truth, and nothing but the truth
in answering written interrogatories. (Hunter v. I
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 ROrCEY 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 M1 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 / Attached Document: Declaration of Raymond L. 19 AND RELATED CROSS COMPLAINTS Sandelman 20 / 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 GE 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 eaeZEX age Z53¢s 14 authorized methods of discovery. 62ag ge BESR Sa 6g ga 15 The motion is based on this notice, the pleadings, records and files in this action, the attached 5S 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 RL 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 Se 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. Boze Ao? &S8 AS 13 John Denton in his capacity as Trustee has not provided further responses to eight sets of H2as Bue ges SS 14 discovery promised on September 15, 2020 (Ex. 6 to the Declaration of Raymond L. Sandelman). gE? 2203 So Sg ga 15 Mr. Denton was sanctioned $1,000 by the court for misuse of the discovery process on November be gs gS 16 9, 2020. There is a second discovery motion filed by Randal Culley set for hearing on December 17 16, 2020. There is a pattern of misuse of the discovery process. 18 2. The Court May Deem Matters Specified In Requests For Admissions As Admitted 19 Code of Civil Procedure section 2033.280 provides in part that: 20 If a party to whom requests for admission are directed fails to serve a timely 21 response, the following rules apply: (a) The party to whom the requests for admission are directed waives any 22 objection to the requests, including one based on privilege or on the protection for 23 work product under Chapter 4 (commencing with Section 2018.010). . . . (b) The requesting party may move for an order that the genuineness of any 24 documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with Section 25 2023.010). 26 (c) The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the 27 motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.100. It is mandatory that the court impose a monetary 28 MEMORANDUM OF POINTS AND AUTHORITIES sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion. If a responding party fails to file responses to the requests for admissions prior to the hearing date of the motion to deem matters admitted, it is mandatory that an order be made deeming the matters admitted. 4) [8:1375] Deemed admissions where no response filed: The statute states “the court shall make this order” unless proposed responses “in substantial compliance” with § 2033.220 are filed before the hearing. [CCP § 2033.280(c) (emphasis added)] “(W)oe betide the party who fails to serve responses before the hearing. In that instance, the court has no discretion but to grant the admission motion, usually with Be 10 fatal consequences for the defaulting party. One might call it ‘two strikes and you're ae <é out’ as applied to civil procedure.” [Demyer v. Costa Mesa Mobile Home Estates, oe 11 supra, 36 228 BeEe 12 B2o8 CA4th at 395-396, 42 CR2d at 261 (disapproved on other grounds in Wilcox v. oun axasS PAB Birtwhistle (1999) 21 C4th 973, 983, 90 CR2d 260, 267, fn. 12)] joa Ze Ze> 13 £2 B<28Zh 14 Weil & Brown California Practice Guide: Civil Procedure Before Trial (The Rutter $e ga 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 6s ss i (f) At no time prior to February 29, 2020 did anyone make any NEGLIGENT 225 Bsa Hog 12 REPRESENTATION to Edward F. Niderost, Trustee of The Edward F. Niderost Revocable Living Loa Soun A8 wee Ze ze~ 13 substantial justification for their conduct, an award of sanctions is mandatory. California Rules of 65 gee g< aa 14 Court Rule 3.1348 provides that sanctions may be awarded if a party does not oppose a discovery Ea of ea 5S Ba 15 motion or if responses are provided after the discovery motion is filed: Ba 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). ao 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 aa o¢ 12 overwritten as a result of the routine, good faith operation of an electronic information bam gaanae RAS system. Hee Ze geS 13 65 SEa No meet and confer is required if there has been a failure to respond to discovery. g< an Sh 14 $f ga 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 ae ag 10 The Court should (a) deem that the truth of matter and genuineness of document specified in <é 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 ifepher Bjziee SSG, fhe (TYPE OR PRINT NAME) {SIGNATURE OF PARTY OR ATTORNEY) Page 1 of 1 Fo roved for Optional Ust AMENDED REQUESTS FOR ADMISSION fe of Civil Procedure, ‘ouncil of California CEB FEssential 56 04-95, 2098.010:2088.420, 2058 710 BiSE-020 tev. Janvary T2008) Forms: Cook exniprr_L 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 oo ae 11 Esplanade, Chico, Butte County, California). <é oe 12 (c) At no time prior to February 29, 2020 did anyone make any NEGLIGENT gs 22a B ss ge? 17 g< on sa $3 aa 18 58 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: Iam 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 8. 1241 E Mission Rd. ae 12 sé os Fallbrook, CA 92028 gs oa 13 S80 Ao Soun 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 gBES 2as 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 2Ea8 Za ga 16) 12. If YOUR answer to Interrogatory 50.4 of YOUR response to Form Interrogatories- be 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 1 which mentions or refers to the REAL PROPERTY. Bo ae 12 19. Each WRITING evidencing any communication between Edward F. Niderost, Trustee Sse os Ee Bere gs ga 13) of The Edward F. Niderost Revocable Living Trust Dated November 8, 1998 and Wayne A. Cook, B2c8 Sada 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: lam 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 exwem (oc _ 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 of a 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 — | am 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@sandelmanlaw.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 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. Please provide further verified response 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. 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 Cc: Andrew Morrissey Subject: RE: Cook v. Niderost Categories: Printed We will provide further responses within the next 7-10 days. ~ From: Raymond L. Sandelman [mailto:Raymond@sandelmaniaw.com] _ Sent: Friday, August 21, 2020 5:00 PM To: Sara Knowles Cc: Andrew Morrissey Subject: Cook v. Niderost Sara: 1am in receipt of the responses by John Denton, successor trustee to Wayne Cook’s third 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 17.1: We need a response to Request for Admission No. 1 (b). The response with respect to Request for Admission No. 1 (y) is evasive. It states that Dr. Fine extended consumer credit with more than four installments. We need him to articulate the specific facts as to these transactions. Parties, like witnesses, are required to state the truth, the whole truth, and nothing but the truth in answering written interrogatories. (Hunter v. I