Preview
JOHN E. PEER - State Bar No. 95978
KATYA. NELSON - State Bar No. 173759
WOOLLS 8'c PEER
A Professional
One
Corporation
Wilshire Boulevard, 22" Floor
FILED
SAN MATE('l CQUNTY
Los Angeles, California 90017
Telephone: (213) 629-1600 2013
Facsimile: (213) 629-1660
Attorneys for Defendants
FARMERS INSURANCE EXCHANGE and
TRUCK INSURANCE EXCHANGE
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN MATEO, CENTRAL BRANCH
10
MICHAELCHANG, an individual, Case No.: CIV 489065
Plaintiff, FARM~'.RS INSURANCE EXCHANGE'S
V. OPPOSITION TO MOTION TO COMPEL
12
FARMERS RESPONSE TO SPECIAL
FARMERS INSURANCE COMPANY, INC.,
w 3,13 FAKERS GROUP, INC., FAIQCERS INTERROGATORIES, SET ONE;
p', INSURANCE EXCHANGE AND TRUCK REQUEST FOR SANCTIONS IN THE
INSURANCE EXCHANGE, reciprocal inter- AMOUNTOF $ 1@95
insurance exchanges; Does 1 to 99, Inclusive,
5I ~is
Defendants.
DATE:
TIME:
September
9:00 A.M.
12, 2013
) 16
O
DEPT: LAM
17
Trial Date: 11/25/13
Motion cutoff: 11/12/13
18
Disc. cutoff: 10/28/13
19 Filed: October 2009
Complaint 28,
20
BY FAX
I. INTRODUCTION
PlaintifFs Motion to Compel seeks to compel responses to Special Interrogatories. The
22
problem is that responses had already been served ten days before the Motion was filed, and plaintiff
23
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simply ignored them. Even if there were an excuse for the filing of the Motion (there isn'),
defendant Farmers Insurance Exchange ("Farmers" ) repeatedly pointed out this error and asked
plaintiff Michael Chang on at least 15 occasions to take his frivolous and meritless Motion to
27
Compel off calendar, to no avail .
28
PRiNTED ON RECYCLED PAPER
OPPOSITION TO MOTION TO COMPEL
353966. I
This Motion arises Rom Special Interrogatories served on June 18, 2013, about 40 days
2 before the July 29, 2013 discovery cutoff. When responses were due on July 23, the parties were
3 meeting and conferring regarding defense depositions that plaintiff kept postponing and the
upcoming Motion to Continue the Trial. Farmers sought an extension, but was unable to obtain the
professional courtesy of a response to its request. So Farmers served unverified objections only on
6 July 23, 2013 ("Objections" ), so as not to waive its right to object, and four business days later,on
I July 29, 2013 Farmers served substantive, verified Responses to plaintifFs Special Interrogatories
8 ("Responses" ) along with its responses to Requests for Production.
On July 31, 2013, counsel for plaintiffsent a terse "meet and confer" email addressing the
10 Objections (mainly by cutting and pasting). Counsel for Farmers responded, advising counsel that
11 Responses that had already been served.
12 Plaintiff ignored the substantive Responses that superseded the Objections, failed to make
p5 f,I 13 any real attempt to meet and confer, and filed his Motion to Compel on August 8, 2013.'he
14 filing of the Motion to Compel with no substantial justification and without attempting
I
to meet and confer requires this court to impose sanctions in the amount of $ 1,395. (See Declaration
n I )16
o~ of Katy Nelson, $ 23.)
17 II. STATEMENT OF FACTS
18 On June 18, 2013, plaintiff served by mail a set of special interrogatories on defendant
Farmers. (Declaration of Gregg Garrison in support of Motion to Compel, Ex. A.) Over the next
20 few days, plaintiff served three additional discovery requests and six deposition notices of defense
21 witnesses. (Declaration of Katy Nelson in support of Opposition to Motion to Compel, g 2.) Trial at
22 that time was set for August 26, 2013, and the discovery cutoff date was July 29, 2013.
23 During the week of July 21, 2013, counsel for the parties were meeting and conferring
24 regarding the depositions that had been scheduled and postponed by plaintiff, and preparing for the
25 July 26, 2013 Motion to Continue Trial. (Nelson Decl., $ 3.) On July 23, 2013, counsel for Farmers
26 emailed counsel for plaintiff asking for a two weeks extension of time to respond to Special
27
'ven ifplaintifFs counsel was unaware of the Responses, which there is no excuse for, he had all the time in
28 the world in work with counsel for Farmers to get responses because te unverified objections did not trigger
any deadline to file a motion to compel.
PRMIED ON RECYCLED PAPER 2
OPPOSITION TO MOTION TO COMPEL
353966.l
1 Interrogatories and Requests for Production. (Nelson Decl., Ex. A.) Counsel for plaintiff ignored
2 the request, even though it was sent to two attorneys and counsel's legal assistant, and the attorneys
3 were regularly communicating by email. So counsel for Farmers had no choice but to serve its
4 Objections with verification or responses to ensure that its objections would not be waived, and
stepped up efforts to complete the Responses as quickly as possible. (Nelson Decl., tt 5.)
On July 24, 2013, counsel for plaintiff emailed counsel for Farmers, refusing to grant the
7 courtesy of any extension at all, telling Farmers that it should not need an extension (at the very
8 same time, counsel for plaintiff having realized he had neglected to request necessary documents
9 from Farmers, was desperately trying to extend discovery so he could postpone the defense
10 depositions until after he had obtained those documents; the court complied). (Nelson Decl., Ex. B.)
On Monday July 29, 2013, Farmers served verified Responses to Special Interrogatories.
12 (Nelson Decl., Ex. C.)
5 3 13 On July 31, 2013, counsel for plaintiffemailed a purported "meet and confer". Rather than
IQ
I
asking why Farmers had not responded, and without noting that there was no plaintiffcut and pasted
II the same complaints to Farmers'bjections over and over, demanding that Farmers "respond fully"
0 to each interrogatory. (Nelson Decl., Ex. D.) On August 2, 2013, counsel for Farmers responded
17 that by now, plaintiff must have received the verified Responses and, therefore, the "meet and
18 confer" was moot. (Nelson Decl., Ex. D.)
19 Amazingly, without any further communications from plaintiff's counsel, the instant Motion
20 to Compel was filed on August 8, 2013. Counsel for Farmers was on vacation when the service
21 copy was received by mail the following week. Nevertheless, it was immediately pointed out to
22 plaintiff by email dated August 13, 2013, that the Motion to Compel was filed in error because
23 verified Responses had been served more than week before the Motion was filed. (Nelson Decl., $$
24 10 and Ex. E.) Because that request was ignored, a second email was sent on August 15, 2013.
25 (Nelson Decl., Ex. F.) Counsel for plaintiff acknowledged that "Supplemental Responses" were
26 received but stated that "those appear inadequate upon my initial review" and promised to meet and
27 confer in the near future. (Nelson Decl., Ex. G.) Thus, as of August 15, 2013, counsel for plaintiff
28 admittedly received substantial responses to discovery, which he had yet to thoroughly review,
PIUNTED ON RECYCLED PAPER
OPPOSITION TO MOTION TO COMPEL
353966.l
1 and he still refused to take the Motion to Compel regarding the original Objections off
2 calendar.
Later in the day on August 15, 2013, counsel for Farmers again explained why the Motion to
4 Compel needed to be taken calendar. (Nelson Decl., Ex. H.) On August 16, 2013, counsel for
5 plaintiff sent an email justifying the Motion to Compel on the grounds that no supplemental
6 responses were served within the arbitrary time f'rame set forth in his inadequate "meet and confer"
letter. He also stated falsely that Farmers had served "Supplemental Responses" after the Motion to
8 Compel was filed. (Nelson Decl., Ex. I.) Counsel for Farmers immediately pointed out the errors in
9 plaintifFs August 16, 2013 email by setting forth the correct dates. (Nelson Decl., Ex. I.) The same
10 exchange (essentially) was repeated again later in the day. (Nelson Decl., Ex. J.)
On August 20, 2013, counsel for plaintiffsent "meet and confer" email purporting to discuss
12 the substantive Responses to Special Interrogatories and also Farmers July 29 production of
r5 II. 13 documents. (Nelson Decl., Ex. K.) Plaintiff inexplicably threatened to keep its Motion to Compel
p, I
on calendar if Farmers did not immediately remedy "all those issues set forth above", which were
5 I~15 only vaguely addressed in the email, even though the Motion to Compel did not address the
) 16 Responses or the document production.
17 Counsel for Farmers made another request that the meritless Motion to Compel be taken off
18 calendar later that day. (Nelson Decl., Ex. K.) On August 22, 2013, having received no further
19 response but after being served with emailed copies of the Motion to Compel, counsel for Farmers
20 again explained why the Motion to Compel had to be withdrawn. (Nelson Decl., Ex. L.) Counsel
21 for plaintiff in his response of the same date stated, again, erroneously, that Farmers served
22 "Supplemental Responses" to Special Interrogatories after the Motion to Compel was filed. (Nelson
23 Decl., Ex. L.) Farmers'ounsel asked for a copy of the supposed "Supplemental Responses" that
24 plaintiffkept referring to. (Nelson Decl., Ex. M.)
25
26
2
PlaintifFs coimsel's email indicates he was confused or did not care for theway the documents produce by
27 Farmers were Bates stamped. (Nelson Decl., Ex. K.) Farmers previously produced about 4,000 pages of
claim file documents. On July 29, 2013, Farmers produced another approximately 2,600 pages of claim file
28 documents, hundreds of pages of policy documents that plaintiff had already received, and complete a
privilege log. The parties are meeting and conferring regarding this matter,which appears to be resolved.
PRINIED DN RECYCLED PAPER 4
OPPOSITION TO MOTION TO COMPEL
353966.i
By email dated August 23, 2013, plaintifFs counsel admitted that he understood that Farmers
2 had served its Responses on July 29, ten days before plaintifFs Motion to Compel was filed.
3 (Nelson Decl., Ex. N.) Even though the Responses were verified and contained substantive answers,
4 however, plaintiff still insisted that "they did not change substantively [Farmers'uly 23"
Objections)." This assertion is entirely false (see Responses served by Farmers on July 29, Nelson
6 Decl., Ex. C.)
Plaintiff has never explained to Farmers why he contends the specific Responses to Special
8 Interrogatories were inadequate.
9 IH. LEGAL ANALYSIS
10 A. Plaintiff's Motion to Comnel is Clearlv Without Merit
When discovery disputes arise, the trial court may intervene in the discovery process in three
12 circumstances. Sinaiko Healthcare Consulting, Inc. v.Pacigc Healthcare (2007) 148 Cal. App. 4th
390, 402. The first is when a party seeks a protective order. The second circumstance is when the
14 propounding party is not satisfied with the response, it may move the court to compel further
I
slij15 responses. The third circutnstance is when a party fails to serve a timely response. Id. at 403.
ctj Ij16 None of those circumstances are present here. The Motion to Compel filed on August 8
17 expressly concerns the Objections to Special Interrogatories served by Farmers on July 23 (see Ex.
18 B to Garrison Declaration and plaintifFs Separate Statement). Ten days before the Motion was filed,
19 Farmers served substantive, verified Responses to Special Interrogatories. The Motion to Compel
20 was, therefore, moot when it was filed, and is clearly without merit.
21 Additionally, plaintiff did not submit a Separate Statement regarding Farmers'ubstantive,
22 verified Responses served on July 29, 2013 (Ex. C to Nelson Decl.). Rule of Court 3.1345
23 subsection (a) provides that a separate statement is required for:
24 Any motion involving the content of a discovery request or the responses to such a
request must be accompanied by a separate statement. The motions that require a
25 separate statement include a motion:
26
3
27 Farmers did not respond to one of the Special Interrogatories, No. 3, because it was unintelligible.
Nevertheless, Farmers subsequently did answer in its Supplemental Response to Special Interrogatory No. 3.
28 Other than No. 3, which Farmers subsequently answered, plaintifFs counsel has never addressed the content
of the specific Responses in any "meet and confer." (Nelson Decl., $ 22.)
PRINTED ON RECYCLED PAPER 5
OPPOSITION TO MOTION TO COMPEL
353966. I
(2) To compel further responses to interrogatories;...
Additionally, plaintiffmade no effort to meet and confer before filing the Motion. Id. at 409
fii.14 ("to compel further responses, the trial court would need to find that the propounding party
3
made an effort at informal resolution sufficient to satisfy the "meet and confer" requirement of
4
section 2030.300, subdivision (b).")
5
Accordingly, the Motion to Compel is undoubtedly defective. It must be denied.
B. Sanctions are Warranted
As demonstrated by the declaration submitted in support of this Opposition, Farmers incurred
$ 1,395 to oppose this meritless and &ivolous Motion. Farmers is entitled to sanctions in the amount
9
of $ 1,395 for the following reasons.
10
1. PlaintifFs Conduct Is Sanctionable Because He Failed to Meet and
Confer
12
Code of Civil Procedure section 2023.010 provides:
w
W
3. 13
14
Misuses ofthe discovery process include, but are not limited to, the following:
(i) Failing to confer in person, by telephone, or by letter with an opposing party or
attorney in a reasonable and good faith attempt to resolve informally any
dispute concerning discovery, if the section governing a particular discovery
motion requires the filingofa declaration stating facts showing that an attempt
17 at informal resolution has been made.
18 PlaintifFs counsel sent a terse email in response to Farmers'bjections, ignored the
19 substantive, verified Responses that were served four days later and never made any good faith
20 attempt to discuss the missing discovery with counsel for Farmers. Ifhe had, he would have realized
21 the Motion to Compel was moot, had no merit and needed to be withdrawn. Even after it was
22 pointed out plaintifFs counsel —countless times! —that his "meet and confer" and Motion to Compel
23 concerned Objections that had been superseded by Responses, and there had been no meet and
24 confer regarding the Responses, plaintiffrefused to withdraw it.
25 Code of Civil Procedure section 2023.020 provides:
26 Notwithstanding the outcome ofthe particular discovery motion, the court shall impose
a monetary sanction ordering that any party or attorney who fails to confer as required
27 pay the reasonable expenses, including attorney's fees, incurred by anyone as a result
28
ofthat conduct. [Emphasis added.]
PIUNIED ON RECYCLED PAPER
OPPOSITION TO MOTION TO COMPEL
353966.I
This court is required to impose sanctions on plaintiff or his counsel for filing this motion
without first meeting and conferring.
2. Plaintiff's Conduct is Sanctionable Because He Refused to Take The
Meritless Motion off Calendar
Code of Civil Procedure section 2023.010 provides:
Misuses ofthe discovery process include, but are not limited to, the following:
(h) Making or opposing,
motion to compel
unsuccessfully
or to limit discovery.
and without substantial j ustijication, a
Code of Civil Procedure section 2023.030 provides:
10
To the extent authorized by the chapter governing any particular discovery method or
any other provision of this title,the court, after notice to any a+ected party, person, or
attorney, and aPer opportunity for hearing, may impose the following sanctions against
12 in c'onduct
anyone engaging that is a misuse ofthe discovery process:
g ]~ 13
(a) The court may impose a monetary sanction ordering that one engaging in the
gt ) misuse of the discovery process, or any attorney advising that conduct, or both
4s Al '4 pay the
result of
reasonable
that
expenses, including attorney's fees, incurred by anyone as a
s II Is
conduct.
o
d I[I
~))
As demonstrated by the documents attached to the Declaration of Katy Nelson filed with this
Opposition, plaintiffwas asked countless times to take the Motion to Compel off calendar because it
17
was seeking to compel responses that had already been served. Plaintiff Qatly refused. Such
18
conduct is sanctionable.
19
IV. CONCLUSION
20
Farmers requests that this court deny plaintifFs Motion to Compel and award it sanctions in
21
the amount of $ 1,395.
22
DATED: August, 2013 WOOLLS B'c PEER
23 A Professional Corporation
24
25
KATYA/ NELSON
26 Attorneys for Defendants
FARMERS INSUIMNCE EXCHANGE and
27 TRUCK INSURANCE EXCHANGE
28
PRINTED ON RECYCLED PAPER
OPPOSITION TO MOTION TO COMPEL
353966.
I
DECLARATIONOF KATYA. NELSON
I, KATYA. NELSON, declare:
l. I am an attorney and a member of the Bar of the State of California. I am
6 an associate with Woolls 4 Peer, counsel of record for Farmers Insurance Exchange. I am one of
7 the attorneys responsible for handling this litigation on behalf of Farmers. I have personal
8 knowledge of the facts stated in this declaration and, ifcalled as a witness, could and would testify
9 competently to those facts.
10 2. The weeks of June 18, 2013, plaintiff served by mail a set of special interrogatories
and a set of requests for production, and personally served 104 requests for admissions along with
12 Form Interrogatory No. 171. Plaintiff also served six deposition notices of defense witnesses. Trial
5 3 13 at that time was set for August 26, 2013, and the discovery cutoff date was July 29, 2013.
W.I
of for
~ ]II 14 3.
conferring
During
the
the week July 21, 2013, counsel the parties were meeting and
regarding defense depositions that had been scheduled and postponed by plaintiff, and
) 16 preparing for the July 26, 2013 Motion to Continue Trial.
17 4. On July 23, 2013, I emailed counsel for plaintiff, asking for a two weeks extension of
18 time to respond to Special Interrogatories and Requests for Production (all of my emails to plaintiff's
19 counsel, pursuant to their request, was sent to Herman Kalfen, Gregg Garrison and Carol Erdie.) A
20 true and correct copy of that email request is attached as Exhibit A.
21 5. Counsel for plaintiffignored the emailed request for an extension, even though it was
22 sent to two attorneys and counsel's legal assistant, and the attorneys were regularly communicating
23 by email. Accordingly, counsel .for Farmers served Objections to Special Interrogatories
24 ("Objections" ) to ensure that its objections would not be waived, and stepped up efforts to complete
25 the Responses.
26
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28
PIUNKD ON RECYClZD PAPER
DECLARATION
353966. I
6. On July 24, 2013, the day after responses were due, counsel for plaintiffemailed me
2 stating that he would not grant any extension at all. A true and correct copy of that email is attached
3 as Exhibit B.
7. On Monday July 29, 2013, I caused to have served Farmers verified Responses to
Special Interrogatories. A true and correct copy is attached as Exhibit C.
8. On July 31, 2013, counsel for plaintiff send me an email regarding the unverified
7 Objections, addressing each one separately although most of the email was cut and paste. A true and
8 correct copy of that email is attached as Exhibit D.
9. On August 2, 2013, I sent counsel for plaintiffan email stating that by now he must
10 have received the verified Responses and that the "meet and confer" was moot. A true and correct
11 copy of that email is attached as Exhibit D.
12 10. I was on vacation when a service copy of the Motion to Compel was received by mail
5 ).13 on August 13, 2013. I immediately emailed counsel for plaintiffand pointed out that the Motion to
14 Compel was filed in error because verified Responses had been served more than week before the
() Motion was filed. A true and correct copy of that email is attached as Exhibit E.
11. My August 13 email was ignored, so I sent a second email was sent on August 15,
17 2013. A true and correct copy of that email is attached as Exhibit F.
18 12. Counsel for plaintiffsent me a responsive email on August 15, 2013, stating that that
19 "Supplemental Responses" were received by them &om Farmers but "those appear inadequate upon
20 my initial review" and promised to meet and confer in the near future. A true and correct copy of
21 that email is attached as Exhibit G.)
22 13. Later in the day on August 15, 2013, I sent another email, again explaining why the
23 Motion to Compel needed to be taken calendar. A true and correct copy of that email is attached as
24 Exhibit H.
25 14. On August 16, 2013, counsel for plaintiffsent me an email stating that the Motion to
Compel was property because Farmers had served "Supplemental Responses" after the Motion to
27 Compel was filed. A true and correct copy of that email is attached as Exhibit I.
28
PRINTED ON RECYCLED PAPER
DECLARATION
353966. I
15. On August 16, I sent an email to plaintifFs counsel listing the accurate dates with
2 respect to the Motion to Compel. Later that day, plaintifFs counsel and I exchange another set of
3 similar emails. True and correct copies of that those emails are attached as Exhibit I and J.
16. On August 20, 2013, counsel for plaintiff sent me a "meet and confer" email
5 purporting to discuss Farmers'ubstantive Responses to Special Interrogatories and also Farmers
6 July 29 production of documents. A true and correct copy of that email is attached as Exhibit K.
17. Also on August 20, I sent another email to counsel for plaintiffs again asking that
8 the Motion to Compel be taken off calendar later that day. A true and correct copy of that email is
9 attached as Exhibit K.
10 18. On August 22, 2013, having received no further response but after being served with
11 emailed copies of the Motion to Compel, I sent counsel for plaintiff another email, against asking
12 that the Motion to Compel be withdrawn. A true and correct copy of that email is attached as Exhibit
w ),13
p, y
19. Also on August 22", counsel for plaintiffemailed me stating that Farmers had served
~ jIi
5tI 15 "Supplemental Responses" to Special Interrogatories after the Motion to Compel was filed. A true
and correct copy of that email is attached as Exhibit L.
17 20. I immediately asked counsel for plaintiffto provide me with a copy of the supposed
18 "Supplemental Responses" that they kept referring to. A true and correct copy of that email is
19 attached as Exhibit M.
20 21. By email dated August 23, 2013, plaintif's counsel admitted that he understood that
21 Farmers had served its Responses on July 29, ten days before plaintifFs Motion to Compel was
22 filed, and there were no "Supplemental" responses. A true and correct copy of that email is attached
23 as Exhibit N.
24 22. PlaintifFs counsel have never told me why they contend the Responses to Special
25 Interrogatories were inadequate, with the exception of No. 3, which we met and conferred about on
26 August 20 and 21, and Farmers subsequently served a supplemental response.
27 23. I spent 4.2 hours preparing this Opposition and the supporting documents, as well as
28 the response to the Separate Statement. I expect to spend another 2 hours preparing for the hearing
PRINTED ON RECYCLED PAPER
DECLARATION
353966. I
1 and appearing by CourtCall. My billing rate for this file is$ 225. Accordingly, Farmers will incur
2 $ 1,395 without even taking into account the time I spent asking counsel for plaintiff repeatedly to
3 with the Motion.
4 I declare under penalty of perjury under the laws of the State of California that the foregoing
5 is true and correct.
6 Executed on August 29, 2013, at Los Angeles, California.
Q
KATHYA. NELSON
10
12
4I PI 14
o~
0 <)s
17
18
19
20
21
22
23
24
25
26
27
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PRINTED ON REC YCLED PAPER
DECLARATION
353966.1
EXHIBIT A
342636 1
Katy Nelson
From: Katy Nelson
Sent: Tuesday, July 23,2013 1:49 PM
To: 'Carol
Erdie'regg
Cc: S. Ganison; Herman I. Kalfen; John E. Peer
Subject: RE: Chang v Farmers
May we please have a two week extension of time to respond to special rogs and requests for production propounded
by plaintiff?Special interrogatory responses are due today and responses to requests for production are due next
Monday.
Thank you for your professional courtesy and cooperation.
Katy A. Nelson
WOOLLS
A Professional
One
+
Corporation
Wilshire Boulevard,
PEER
22nd Floor
Los Angeles, California 90017
Telephone: (213) 629-8768
Facsimile: (213) 629-1660
knelsonwoollsoeer.corn
From: Carol Erdie fmailto:caroi@aarrisonlawcoro.coml
Sent: Tuesday, July 23, 2013 8:29 Aivi
To: Katy Nelson
Cc: Gregg S. Garrison; Herman I. Kalfen
Subjecb Chang v Farmers - Chang Expert Witness Depositions Need to Be Re-Set Due to Unavailability of Expert
Witnesses
Hi Katy,
Michael Chang's expert depositions set for next Tuesday July 30, 2013 (Hoexter, Miller, Mohr) need
to be re-set. We have no choice due to their unavailability and we will stipulate to more time to bring
a motion, if necessary, but it should not be needed.
lf you have any qyestions about this, please work with Herman Kalfen directly.
Thank you,
Carol Erdie
Legal Assistant to Gregg S. Garrison, JD, REA, CEM
GARRISON LAW CORPORATION
Phone: +1 650-223-9966
Main: +1 650-2604452
Facsimile: +1 650-726-9315
Attomev at Law in California. DC. New York & Texas
CONFIDENTIALITYNOTICE: This constitutes
an electronic communication of the Electronic Communications
ftHnail) within the meaning Privacy Act. 18 U.S.C.
S
2510. and lls disclosure
Is stricgy limited to the recipient intended
by the sender This e-mail may contain confidential and privileged material for
of this message.
the sole use of the intended else does not constitute a loss or waiver of its confidential or privileged nature.
recipient and receipt by anyone Any review or
EXHIBIT B
342636.1
Katy Nelson
From: Herman Law [kalfenlawofficeearthlink.net)
Sent: Wednesday, July 24, 2013 5:30 AM
To: Katy Nelson
Cc: GLC Garrison; Carol Erdie;Camille Glover, Karen Chalgren; Herman Law
Subject: Response to Your Request for Additional Time for Response to Special Rogs and Docs - We
need your responses without further delay Fwd: Chang v Farmers
Hello Katy:
Thank you for the email. I hope you are having a great morning.
We agree that your responses were due on Tuesday, July 23, 2013, your request for additional time late in the
afternoon on July 23 notwithstanding. Therefore, due to your failure to provide responses in a timely manner,
all objections are automatically waived per operation of the Code of Civil Procedure and are hereby deemed
w81ved.
off
I don't understand why~ou might need two more weeks. You have had this discovery for 30 days, and this case
is several years old. The questions are basic. It would seem that you should be done, or darn near done at this
prior to the end of the last moment. Therefore, all objections are waived, and all other rights are asserted under
the Code, whether we agree to a subsequent extension of time for your now tardy responses. We need your
responsive documents and Special Interrogatory responses without further delay. Moreover, we require your
responses complete at least2 (or 3) business days prior to taking the deposition of Mr. Merrill.
Ifwe give any extension, we would need a Stipulation to bring a Motion to Compel, ifneed be, after cut offand
on short time. It would be better, however, ifthe Court grants our Motion Friday, and continues the trial and
discovery cut b 30 days. Then, we can setto everyone's mutual convenience.
Therefore, we do not agree to your request for 2 weeks additional response time. We do agree to grant you an
extension to the end of the day Monday, July 29 for your Response to Special Interrogatories, without waiver
and with all vour obiections waived.
Ifthe Court does not grant our Continuance Request, we will expect our responses complete on Monday. We
might be willingto provide a couple or few additional days, noting examples of your prior professional
courtesy. Ifyour responses, once given, are evasive, not verified, or otherwise not responsive, please be
advised now in advance that we will have no choice but to bring an immediate or very fast Motion to Compel.
Likewise, based on the basic subject matter of the Farmers ground for coverage determinations, any evasive
and incomplete response herein would also be considered as further lack of good faith by Farmers.
Ifthe Court does grant a Continuance, then we are willingto provide you with more additional time, consistent
with this email for further discovery response, and without waiver as stated herein.
That being said, in any event, we will still want you to provide all documents that are responsive that you
currently have obtained by Monday, and then can obtain and provide additional documents, ifany there be,
shortly thereafter. We seek similar approach as to the Special Interrogatories, with responses without delay,
and amended subsequently if need be.
As always, please don't hesitate to email myself or Mr. Garrison any time regarding any matter.
Thanks,
Herm
Herman I. Kalfen, JD, REA, NAEP
Kalfen Law Corporation
1 Embarcadero Center, Suite 500
San Francisco, CA 94111
415.315.1710 (oflice phone)
415.433.5994 (oflice fax)
8N.41 5.WINS (toll free line)
415.215.4474 (cell)
KalfenLawcorooratlon.corn (law office website)
BevondAShadow.corn (separate environmental serviceswebsite)
Pleaseconsiderthe environment beforeprinting this e-mail.
The informationcontained in thise-mail transmission is intended only for useof the individual or entity
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JOHN E. PEER - State Bar No. 95978 KATYA. NELSON - State Bar No. 173759 WOOLLS 8'c PEER A Professional One Corporation Wilshire Boulevard, 22" Floor FILED SAN MATE('l CQUNTY Los Angeles, California 90017 Telephone: (213) 629-1600 2013 Facsimile: (213) 629-1660 Attorneys for Defendants FARMERS INSURANCE EXCHANGE and TRUCK INSURANCE EXCHANGE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN MATEO, CENTRAL BRANCH 10 MICHAELCHANG, an individual, Case No.: CIV 489065 Plaintiff, FARM~'.RS INSURANCE EXCHANGE'S V. OPPOSITION TO MOTION TO COMPEL 12 FARMERS RESPONSE TO SPECIAL FARMERS INSURANCE COMPANY, INC., w 3,13 FAKERS GROUP, INC., FAIQCERS INTERROGATORIES, SET ONE; p', INSURANCE EXCHANGE AND TRUCK REQUEST FOR SANCTIONS IN THE INSURANCE EXCHANGE, reciprocal inter- AMOUNTOF $ 1@95 insurance exchanges; Does 1 to 99, Inclusive, 5I ~is Defendants. DATE: TIME: September 9:00 A.M. 12, 2013 ) 16 O DEPT: LAM 17 Trial Date: 11/25/13 Motion cutoff: 11/12/13 18 Disc. cutoff: 10/28/13 19 Filed: October 2009 Complaint 28, 20 BY FAX I. INTRODUCTION PlaintifFs Motion to Compel seeks to compel responses to Special Interrogatories. The 22 problem is that responses had already been served ten days before the Motion was filed, and plaintiff 23 24 simply ignored them. Even if there were an excuse for the filing of the Motion (there isn'), defendant Farmers Insurance Exchange ("Farmers" ) repeatedly pointed out this error and asked plaintiff Michael Chang on at least 15 occasions to take his frivolous and meritless Motion to 27 Compel off calendar, to no avail . 28 PRiNTED ON RECYCLED PAPER OPPOSITION TO MOTION TO COMPEL 353966. I This Motion arises Rom Special Interrogatories served on June 18, 2013, about 40 days 2 before the July 29, 2013 discovery cutoff. When responses were due on July 23, the parties were 3 meeting and conferring regarding defense depositions that plaintiff kept postponing and the upcoming Motion to Continue the Trial. Farmers sought an extension, but was unable to obtain the professional courtesy of a response to its request. So Farmers served unverified objections only on 6 July 23, 2013 ("Objections" ), so as not to waive its right to object, and four business days later,on I July 29, 2013 Farmers served substantive, verified Responses to plaintifFs Special Interrogatories 8 ("Responses" ) along with its responses to Requests for Production. On July 31, 2013, counsel for plaintiffsent a terse "meet and confer" email addressing the 10 Objections (mainly by cutting and pasting). Counsel for Farmers responded, advising counsel that 11 Responses that had already been served. 12 Plaintiff ignored the substantive Responses that superseded the Objections, failed to make p5 f,I 13 any real attempt to meet and confer, and filed his Motion to Compel on August 8, 2013.'he 14 filing of the Motion to Compel with no substantial justification and without attempting I to meet and confer requires this court to impose sanctions in the amount of $ 1,395. (See Declaration n I )16 o~ of Katy Nelson, $ 23.) 17 II. STATEMENT OF FACTS 18 On June 18, 2013, plaintiff served by mail a set of special interrogatories on defendant Farmers. (Declaration of Gregg Garrison in support of Motion to Compel, Ex. A.) Over the next 20 few days, plaintiff served three additional discovery requests and six deposition notices of defense 21 witnesses. (Declaration of Katy Nelson in support of Opposition to Motion to Compel, g 2.) Trial at 22 that time was set for August 26, 2013, and the discovery cutoff date was July 29, 2013. 23 During the week of July 21, 2013, counsel for the parties were meeting and conferring 24 regarding the depositions that had been scheduled and postponed by plaintiff, and preparing for the 25 July 26, 2013 Motion to Continue Trial. (Nelson Decl., $ 3.) On July 23, 2013, counsel for Farmers 26 emailed counsel for plaintiff asking for a two weeks extension of time to respond to Special 27 'ven ifplaintifFs counsel was unaware of the Responses, which there is no excuse for, he had all the time in 28 the world in work with counsel for Farmers to get responses because te unverified objections did not trigger any deadline to file a motion to compel. PRMIED ON RECYCLED PAPER 2 OPPOSITION TO MOTION TO COMPEL 353966.l 1 Interrogatories and Requests for Production. (Nelson Decl., Ex. A.) Counsel for plaintiff ignored 2 the request, even though it was sent to two attorneys and counsel's legal assistant, and the attorneys 3 were regularly communicating by email. So counsel for Farmers had no choice but to serve its 4 Objections with verification or responses to ensure that its objections would not be waived, and stepped up efforts to complete the Responses as quickly as possible. (Nelson Decl., tt 5.) On July 24, 2013, counsel for plaintiff emailed counsel for Farmers, refusing to grant the 7 courtesy of any extension at all, telling Farmers that it should not need an extension (at the very 8 same time, counsel for plaintiff having realized he had neglected to request necessary documents 9 from Farmers, was desperately trying to extend discovery so he could postpone the defense 10 depositions until after he had obtained those documents; the court complied). (Nelson Decl., Ex. B.) On Monday July 29, 2013, Farmers served verified Responses to Special Interrogatories. 12 (Nelson Decl., Ex. C.) 5 3 13 On July 31, 2013, counsel for plaintiffemailed a purported "meet and confer". Rather than IQ I asking why Farmers had not responded, and without noting that there was no plaintiffcut and pasted II the same complaints to Farmers'bjections over and over, demanding that Farmers "respond fully" 0 to each interrogatory. (Nelson Decl., Ex. D.) On August 2, 2013, counsel for Farmers responded 17 that by now, plaintiff must have received the verified Responses and, therefore, the "meet and 18 confer" was moot. (Nelson Decl., Ex. D.) 19 Amazingly, without any further communications from plaintiff's counsel, the instant Motion 20 to Compel was filed on August 8, 2013. Counsel for Farmers was on vacation when the service 21 copy was received by mail the following week. Nevertheless, it was immediately pointed out to 22 plaintiff by email dated August 13, 2013, that the Motion to Compel was filed in error because 23 verified Responses had been served more than week before the Motion was filed. (Nelson Decl., $$ 24 10 and Ex. E.) Because that request was ignored, a second email was sent on August 15, 2013. 25 (Nelson Decl., Ex. F.) Counsel for plaintiff acknowledged that "Supplemental Responses" were 26 received but stated that "those appear inadequate upon my initial review" and promised to meet and 27 confer in the near future. (Nelson Decl., Ex. G.) Thus, as of August 15, 2013, counsel for plaintiff 28 admittedly received substantial responses to discovery, which he had yet to thoroughly review, PIUNTED ON RECYCLED PAPER OPPOSITION TO MOTION TO COMPEL 353966.l 1 and he still refused to take the Motion to Compel regarding the original Objections off 2 calendar. Later in the day on August 15, 2013, counsel for Farmers again explained why the Motion to 4 Compel needed to be taken calendar. (Nelson Decl., Ex. H.) On August 16, 2013, counsel for 5 plaintiff sent an email justifying the Motion to Compel on the grounds that no supplemental 6 responses were served within the arbitrary time f'rame set forth in his inadequate "meet and confer" letter. He also stated falsely that Farmers had served "Supplemental Responses" after the Motion to 8 Compel was filed. (Nelson Decl., Ex. I.) Counsel for Farmers immediately pointed out the errors in 9 plaintifFs August 16, 2013 email by setting forth the correct dates. (Nelson Decl., Ex. I.) The same 10 exchange (essentially) was repeated again later in the day. (Nelson Decl., Ex. J.) On August 20, 2013, counsel for plaintiffsent "meet and confer" email purporting to discuss 12 the substantive Responses to Special Interrogatories and also Farmers July 29 production of r5 II. 13 documents. (Nelson Decl., Ex. K.) Plaintiff inexplicably threatened to keep its Motion to Compel p, I on calendar if Farmers did not immediately remedy "all those issues set forth above", which were 5 I~15 only vaguely addressed in the email, even though the Motion to Compel did not address the ) 16 Responses or the document production. 17 Counsel for Farmers made another request that the meritless Motion to Compel be taken off 18 calendar later that day. (Nelson Decl., Ex. K.) On August 22, 2013, having received no further 19 response but after being served with emailed copies of the Motion to Compel, counsel for Farmers 20 again explained why the Motion to Compel had to be withdrawn. (Nelson Decl., Ex. L.) Counsel 21 for plaintiff in his response of the same date stated, again, erroneously, that Farmers served 22 "Supplemental Responses" to Special Interrogatories after the Motion to Compel was filed. (Nelson 23 Decl., Ex. L.) Farmers'ounsel asked for a copy of the supposed "Supplemental Responses" that 24 plaintiffkept referring to. (Nelson Decl., Ex. M.) 25 26 2 PlaintifFs coimsel's email indicates he was confused or did not care for theway the documents produce by 27 Farmers were Bates stamped. (Nelson Decl., Ex. K.) Farmers previously produced about 4,000 pages of claim file documents. On July 29, 2013, Farmers produced another approximately 2,600 pages of claim file 28 documents, hundreds of pages of policy documents that plaintiff had already received, and complete a privilege log. The parties are meeting and conferring regarding this matter,which appears to be resolved. PRINIED DN RECYCLED PAPER 4 OPPOSITION TO MOTION TO COMPEL 353966.i By email dated August 23, 2013, plaintifFs counsel admitted that he understood that Farmers 2 had served its Responses on July 29, ten days before plaintifFs Motion to Compel was filed. 3 (Nelson Decl., Ex. N.) Even though the Responses were verified and contained substantive answers, 4 however, plaintiff still insisted that "they did not change substantively [Farmers'uly 23" Objections)." This assertion is entirely false (see Responses served by Farmers on July 29, Nelson 6 Decl., Ex. C.) Plaintiff has never explained to Farmers why he contends the specific Responses to Special 8 Interrogatories were inadequate. 9 IH. LEGAL ANALYSIS 10 A. Plaintiff's Motion to Comnel is Clearlv Without Merit When discovery disputes arise, the trial court may intervene in the discovery process in three 12 circumstances. Sinaiko Healthcare Consulting, Inc. v.Pacigc Healthcare (2007) 148 Cal. App. 4th 390, 402. The first is when a party seeks a protective order. The second circumstance is when the 14 propounding party is not satisfied with the response, it may move the court to compel further I slij15 responses. The third circutnstance is when a party fails to serve a timely response. Id. at 403. ctj Ij16 None of those circumstances are present here. The Motion to Compel filed on August 8 17 expressly concerns the Objections to Special Interrogatories served by Farmers on July 23 (see Ex. 18 B to Garrison Declaration and plaintifFs Separate Statement). Ten days before the Motion was filed, 19 Farmers served substantive, verified Responses to Special Interrogatories. The Motion to Compel 20 was, therefore, moot when it was filed, and is clearly without merit. 21 Additionally, plaintiff did not submit a Separate Statement regarding Farmers'ubstantive, 22 verified Responses served on July 29, 2013 (Ex. C to Nelson Decl.). Rule of Court 3.1345 23 subsection (a) provides that a separate statement is required for: 24 Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motions that require a 25 separate statement include a motion: 26 3 27 Farmers did not respond to one of the Special Interrogatories, No. 3, because it was unintelligible. Nevertheless, Farmers subsequently did answer in its Supplemental Response to Special Interrogatory No. 3. 28 Other than No. 3, which Farmers subsequently answered, plaintifFs counsel has never addressed the content of the specific Responses in any "meet and confer." (Nelson Decl., $ 22.) PRINTED ON RECYCLED PAPER 5 OPPOSITION TO MOTION TO COMPEL 353966. I (2) To compel further responses to interrogatories;... Additionally, plaintiffmade no effort to meet and confer before filing the Motion. Id. at 409 fii.14 ("to compel further responses, the trial court would need to find that the propounding party 3 made an effort at informal resolution sufficient to satisfy the "meet and confer" requirement of 4 section 2030.300, subdivision (b).") 5 Accordingly, the Motion to Compel is undoubtedly defective. It must be denied. B. Sanctions are Warranted As demonstrated by the declaration submitted in support of this Opposition, Farmers incurred $ 1,395 to oppose this meritless and &ivolous Motion. Farmers is entitled to sanctions in the amount 9 of $ 1,395 for the following reasons. 10 1. PlaintifFs Conduct Is Sanctionable Because He Failed to Meet and Confer 12 Code of Civil Procedure section 2023.010 provides: w W 3. 13 14 Misuses ofthe discovery process include, but are not limited to, the following: (i) Failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if the section governing a particular discovery motion requires the filingofa declaration stating facts showing that an attempt 17 at informal resolution has been made. 18 PlaintifFs counsel sent a terse email in response to Farmers'bjections, ignored the 19 substantive, verified Responses that were served four days later and never made any good faith 20 attempt to discuss the missing discovery with counsel for Farmers. Ifhe had, he would have realized 21 the Motion to Compel was moot, had no merit and needed to be withdrawn. Even after it was 22 pointed out plaintifFs counsel —countless times! —that his "meet and confer" and Motion to Compel 23 concerned Objections that had been superseded by Responses, and there had been no meet and 24 confer regarding the Responses, plaintiffrefused to withdraw it. 25 Code of Civil Procedure section 2023.020 provides: 26 Notwithstanding the outcome ofthe particular discovery motion, the court shall impose a monetary sanction ordering that any party or attorney who fails to confer as required 27 pay the reasonable expenses, including attorney's fees, incurred by anyone as a result 28 ofthat conduct. [Emphasis added.] PIUNIED ON RECYCLED PAPER OPPOSITION TO MOTION TO COMPEL 353966.I This court is required to impose sanctions on plaintiff or his counsel for filing this motion without first meeting and conferring. 2. Plaintiff's Conduct is Sanctionable Because He Refused to Take The Meritless Motion off Calendar Code of Civil Procedure section 2023.010 provides: Misuses ofthe discovery process include, but are not limited to, the following: (h) Making or opposing, motion to compel unsuccessfully or to limit discovery. and without substantial j ustijication, a Code of Civil Procedure section 2023.030 provides: 10 To the extent authorized by the chapter governing any particular discovery method or any other provision of this title,the court, after notice to any a+ected party, person, or attorney, and aPer opportunity for hearing, may impose the following sanctions against 12 in c'onduct anyone engaging that is a misuse ofthe discovery process: g ]~ 13 (a) The court may impose a monetary sanction ordering that one engaging in the gt ) misuse of the discovery process, or any attorney advising that conduct, or both 4s Al '4 pay the result of reasonable that expenses, including attorney's fees, incurred by anyone as a s II Is conduct. o d I[I ~)) As demonstrated by the documents attached to the Declaration of Katy Nelson filed with this Opposition, plaintiffwas asked countless times to take the Motion to Compel off calendar because it 17 was seeking to compel responses that had already been served. Plaintiff Qatly refused. Such 18 conduct is sanctionable. 19 IV. CONCLUSION 20 Farmers requests that this court deny plaintifFs Motion to Compel and award it sanctions in 21 the amount of $ 1,395. 22 DATED: August, 2013 WOOLLS B'c PEER 23 A Professional Corporation 24 25 KATYA/ NELSON 26 Attorneys for Defendants FARMERS INSUIMNCE EXCHANGE and 27 TRUCK INSURANCE EXCHANGE 28 PRINTED ON RECYCLED PAPER OPPOSITION TO MOTION TO COMPEL 353966. I DECLARATIONOF KATYA. NELSON I, KATYA. NELSON, declare: l. I am an attorney and a member of the Bar of the State of California. I am 6 an associate with Woolls 4 Peer, counsel of record for Farmers Insurance Exchange. I am one of 7 the attorneys responsible for handling this litigation on behalf of Farmers. I have personal 8 knowledge of the facts stated in this declaration and, ifcalled as a witness, could and would testify 9 competently to those facts. 10 2. The weeks of June 18, 2013, plaintiff served by mail a set of special interrogatories and a set of requests for production, and personally served 104 requests for admissions along with 12 Form Interrogatory No. 171. Plaintiff also served six deposition notices of defense witnesses. Trial 5 3 13 at that time was set for August 26, 2013, and the discovery cutoff date was July 29, 2013. W.I of for ~ ]II 14 3. conferring During the the week July 21, 2013, counsel the parties were meeting and regarding defense depositions that had been scheduled and postponed by plaintiff, and ) 16 preparing for the July 26, 2013 Motion to Continue Trial. 17 4. On July 23, 2013, I emailed counsel for plaintiff, asking for a two weeks extension of 18 time to respond to Special Interrogatories and Requests for Production (all of my emails to plaintiff's 19 counsel, pursuant to their request, was sent to Herman Kalfen, Gregg Garrison and Carol Erdie.) A 20 true and correct copy of that email request is attached as Exhibit A. 21 5. Counsel for plaintiffignored the emailed request for an extension, even though it was 22 sent to two attorneys and counsel's legal assistant, and the attorneys were regularly communicating 23 by email. Accordingly, counsel .for Farmers served Objections to Special Interrogatories 24 ("Objections" ) to ensure that its objections would not be waived, and stepped up efforts to complete 25 the Responses. 26 27 28 PIUNKD ON RECYClZD PAPER DECLARATION 353966. I 6. On July 24, 2013, the day after responses were due, counsel for plaintiffemailed me 2 stating that he would not grant any extension at all. A true and correct copy of that email is attached 3 as Exhibit B. 7. On Monday July 29, 2013, I caused to have served Farmers verified Responses to Special Interrogatories. A true and correct copy is attached as Exhibit C. 8. On July 31, 2013, counsel for plaintiff send me an email regarding the unverified 7 Objections, addressing each one separately although most of the email was cut and paste. A true and 8 correct copy of that email is attached as Exhibit D. 9. On August 2, 2013, I sent counsel for plaintiffan email stating that by now he must 10 have received the verified Responses and that the "meet and confer" was moot. A true and correct 11 copy of that email is attached as Exhibit D. 12 10. I was on vacation when a service copy of the Motion to Compel was received by mail 5 ).13 on August 13, 2013. I immediately emailed counsel for plaintiffand pointed out that the Motion to 14 Compel was filed in error because verified Responses had been served more than week before the () Motion was filed. A true and correct copy of that email is attached as Exhibit E. 11. My August 13 email was ignored, so I sent a second email was sent on August 15, 17 2013. A true and correct copy of that email is attached as Exhibit F. 18 12. Counsel for plaintiffsent me a responsive email on August 15, 2013, stating that that 19 "Supplemental Responses" were received by them &om Farmers but "those appear inadequate upon 20 my initial review" and promised to meet and confer in the near future. A true and correct copy of 21 that email is attached as Exhibit G.) 22 13. Later in the day on August 15, 2013, I sent another email, again explaining why the 23 Motion to Compel needed to be taken calendar. A true and correct copy of that email is attached as 24 Exhibit H. 25 14. On August 16, 2013, counsel for plaintiffsent me an email stating that the Motion to Compel was property because Farmers had served "Supplemental Responses" after the Motion to 27 Compel was filed. A true and correct copy of that email is attached as Exhibit I. 28 PRINTED ON RECYCLED PAPER DECLARATION 353966. I 15. On August 16, I sent an email to plaintifFs counsel listing the accurate dates with 2 respect to the Motion to Compel. Later that day, plaintifFs counsel and I exchange another set of 3 similar emails. True and correct copies of that those emails are attached as Exhibit I and J. 16. On August 20, 2013, counsel for plaintiff sent me a "meet and confer" email 5 purporting to discuss Farmers'ubstantive Responses to Special Interrogatories and also Farmers 6 July 29 production of documents. A true and correct copy of that email is attached as Exhibit K. 17. Also on August 20, I sent another email to counsel for plaintiffs again asking that 8 the Motion to Compel be taken off calendar later that day. A true and correct copy of that email is 9 attached as Exhibit K. 10 18. On August 22, 2013, having received no further response but after being served with 11 emailed copies of the Motion to Compel, I sent counsel for plaintiff another email, against asking 12 that the Motion to Compel be withdrawn. A true and correct copy of that email is attached as Exhibit w ),13 p, y 19. Also on August 22", counsel for plaintiffemailed me stating that Farmers had served ~ jIi 5tI 15 "Supplemental Responses" to Special Interrogatories after the Motion to Compel was filed. A true and correct copy of that email is attached as Exhibit L. 17 20. I immediately asked counsel for plaintiffto provide me with a copy of the supposed 18 "Supplemental Responses" that they kept referring to. A true and correct copy of that email is 19 attached as Exhibit M. 20 21. By email dated August 23, 2013, plaintif's counsel admitted that he understood that 21 Farmers had served its Responses on July 29, ten days before plaintifFs Motion to Compel was 22 filed, and there were no "Supplemental" responses. A true and correct copy of that email is attached 23 as Exhibit N. 24 22. PlaintifFs counsel have never told me why they contend the Responses to Special 25 Interrogatories were inadequate, with the exception of No. 3, which we met and conferred about on 26 August 20 and 21, and Farmers subsequently served a supplemental response. 27 23. I spent 4.2 hours preparing this Opposition and the supporting documents, as well as 28 the response to the Separate Statement. I expect to spend another 2 hours preparing for the hearing PRINTED ON RECYCLED PAPER DECLARATION 353966. I 1 and appearing by CourtCall. My billing rate for this file is$ 225. Accordingly, Farmers will incur 2 $ 1,395 without even taking into account the time I spent asking counsel for plaintiff repeatedly to 3 with the Motion. 4 I declare under penalty of perjury under the laws of the State of California that the foregoing 5 is true and correct. 6 Executed on August 29, 2013, at Los Angeles, California. Q KATHYA. NELSON 10 12 4I PI 14 o~ 0 <)s 17 18 19 20 21 22 23 24 25 26 27 28 PRINTED ON REC YCLED PAPER DECLARATION 353966.1 EXHIBIT A 342636 1 Katy Nelson From: Katy Nelson Sent: Tuesday, July 23,2013 1:49 PM To: 'Carol Erdie'regg Cc: S. Ganison; Herman I. Kalfen; John E. Peer Subject: RE: Chang v Farmers May we please have a two week extension of time to respond to special rogs and requests for production propounded by plaintiff?Special interrogatory responses are due today and responses to requests for production are due next Monday. Thank you for your professional courtesy and cooperation. Katy A. Nelson WOOLLS A Professional One + Corporation Wilshire Boulevard, PEER 22nd Floor Los Angeles, California 90017 Telephone: (213) 629-8768 Facsimile: (213) 629-1660 knelsonwoollsoeer.corn From: Carol Erdie fmailto:caroi@aarrisonlawcoro.coml Sent: Tuesday, July 23, 2013 8:29 Aivi To: Katy Nelson Cc: Gregg S. Garrison; Herman I. Kalfen Subjecb Chang v Farmers - Chang Expert Witness Depositions Need to Be Re-Set Due to Unavailability of Expert Witnesses Hi Katy, Michael Chang's expert depositions set for next Tuesday July 30, 2013 (Hoexter, Miller, Mohr) need to be re-set. We have no choice due to their unavailability and we will stipulate to more time to bring a motion, if necessary, but it should not be needed. lf you have any qyestions about this, please work with Herman Kalfen directly. Thank you, Carol Erdie Legal Assistant to Gregg S. Garrison, JD, REA, CEM GARRISON LAW CORPORATION Phone: +1 650-223-9966 Main: +1 650-2604452 Facsimile: +1 650-726-9315 Attomev at Law in California. DC. New York & Texas CONFIDENTIALITYNOTICE: This constitutes an electronic communication of the Electronic Communications ftHnail) within the meaning Privacy Act. 18 U.S.C. S 2510. and lls disclosure Is stricgy limited to the recipient intended by the sender This e-mail may contain confidential and privileged material for of this message. the sole use of the intended else does not constitute a loss or waiver of its confidential or privileged nature. recipient and receipt by anyone Any review or EXHIBIT B 342636.1 Katy Nelson From: Herman Law [kalfenlawofficeearthlink.net) Sent: Wednesday, July 24, 2013 5:30 AM To: Katy Nelson Cc: GLC Garrison; Carol Erdie;Camille Glover, Karen Chalgren; Herman Law Subject: Response to Your Request for Additional Time for Response to Special Rogs and Docs - We need your responses without further delay Fwd: Chang v Farmers Hello Katy: Thank you for the email. I hope you are having a great morning. We agree that your responses were due on Tuesday, July 23, 2013, your request for additional time late in the afternoon on July 23 notwithstanding. Therefore, due to your failure to provide responses in a timely manner, all objections are automatically waived per operation of the Code of Civil Procedure and are hereby deemed w81ved. off I don't understand why~ou might need two more weeks. You have had this discovery for 30 days, and this case is several years old. The questions are basic. It would seem that you should be done, or darn near done at this prior to the end of the last moment. Therefore, all objections are waived, and all other rights are asserted under the Code, whether we agree to a subsequent extension of time for your now tardy responses. We need your responsive documents and Special Interrogatory responses without further delay. Moreover, we require your responses complete at least2 (or 3) business days prior to taking the deposition of Mr. Merrill. Ifwe give any extension, we would need a Stipulation to bring a Motion to Compel, ifneed be, after cut offand on short time. It would be better, however, ifthe Court grants our Motion Friday, and continues the trial and discovery cut b 30 days. Then, we can setto everyone's mutual convenience. Therefore, we do not agree to your request for 2 weeks additional response time. We do agree to grant you an extension to the end of the day Monday, July 29 for your Response to Special Interrogatories, without waiver and with all vour obiections waived. Ifthe Court does not grant our Continuance Request, we will expect our responses complete on Monday. We might be willingto provide a couple or few additional days, noting examples of your prior professional courtesy. Ifyour responses, once given, are evasive, not verified, or otherwise not responsive, please be advised now in advance that we will have no choice but to bring an immediate or very fast Motion to Compel. Likewise, based on the basic subject matter of the Farmers ground for coverage determinations, any evasive and incomplete response herein would also be considered as further lack of good faith by Farmers. Ifthe Court does grant a Continuance, then we are willingto provide you with more additional time, consistent with this email for further discovery response, and without waiver as stated herein. That being said, in any event, we will still want you to provide all documents that are responsive that you currently have obtained by Monday, and then can obtain and provide additional documents, ifany there be, shortly thereafter. We seek similar approach as to the Special Interrogatories, with responses without delay, and amended subsequently if need be. As always, please don't hesitate to email myself or Mr. Garrison any time regarding any matter. Thanks, Herm Herman I. Kalfen, JD, REA, NAEP Kalfen Law Corporation 1 Embarcadero Center, Suite 500 San Francisco, CA 94111 415.315.1710 (oflice phone) 415.433.5994 (oflice fax) 8N.41 5.WINS (toll free line) 415.215.4474 (cell) KalfenLawcorooratlon.corn (law office website) BevondAShadow.corn (separate environmental serviceswebsite) Pleaseconsiderthe environment beforeprinting this e-mail. The informationcontained in thise-mail transmission is intended only for useof the individual or entity