Preview
83/81/2684 11:46 4154642812 BUELL BERNER PAGE 7
FILED BY FAX
E. Rick Buell, II (SBN 63924) ALAMEDA COUNTY
LAW OFFICES OF E. RICK BUELL, II
Suite 175 March 01, 2004
400 Larkspur Landing Circle,
NY
Larkspur CA 94939 CLERK OF
Tel: (415) 464-2011 THE SUP ERI OR COURT
464-2012 By Rosanne Case, Deputy
Fax: (415)
RY
email: rbyell@buell-Jaw.us CASE NUMBER:
RGO3106646
Attorneys for Plaintiff
eh
GWEN R. SYKES
TA
SUPERIOR COURT OF THE STATE OF CALIFORNIA
oo
COUNTY OF ALAMEDA
11 GWEN R. SYKES Case No. RGO3106646
12 Plaintiff, PLAINTIFF’S OPPOSITION TO
COMPEL
vs. ) DEFENDANT’S MOTION TO
13 PRODUCTION OF DOCUMENT
DOUGLAS SYKES, an individual, and
14 DOES 1-20, inclusive Date: March 16, 2003
Time: 2:00 p.m.
15 Defendant. Dept. 31
Reservation No 342285
16 Trial Date: October 1, 2004.
17
18
19 I. FACTUAL STATEMENT
20 A, Nature of Complaint. This is an action brought by plaintiff against defendant
21 seeking damages as a result of defendant: (1) breaching a Marvin (palimony) agreement with
2 plaintiff and (2) infecting plaintiff with herpes and other sexually transmitted diseases (“STD”).
23 B, Background Facts,
24 J. Plaintiff's Attorney Glenn Oleon. Plaintiff and defendant began a
25 relationship in 1991, which they considered formalizing by marriage in late 1999. Prior to
26 getting married, defendant asked plaintiff in the late summer of 1999 to execute a prenuptial
27 agreement, provided her with a draft of such agreement and obtained an attomey named Glenn
28 Oleon for plaintiff to advise her with respect to the prenuptial agreement. Plaintiff took the draft
PLAINTIFF'S OPPOSITION TO DEFENDANT'S
MOTION TO COMPEL PRODUCTION OF DOCUMENT
@a/el/2084 11:46 4154642812 BUELL BERNER PAGE 48
and discussed itwith Oleon at his office.
agreement provided toher by defendant
prenuptial
Oleon, she wrote notes on the draft, She apparently forgot
While discussing the agreement with
the handwritten notes with her when she left Oleon’s office. Oleon retained
to take the draft with
kw
placed itin his filesafter their meeting in the late ,
the draft with her hand written notes, he
summer of 1999,' Plaintiff never signed this draft agreement nor did she retain a copy ofit
wh
draft agreement again until February 27, 2004, in preparation of this
Plaintiff never saw this
UA
opposition, [Plaintiff's Dec., ]2]
After the meeting with Oleon, the marriage plans were postponed by defendant, and
wo
plaintiff did not have further interaction with Oleon until February 2000, when the marriage
2
plans were again made. However, again the marriage plans were postponed in the spring of
11 2000, and there was no further activity with respect to aprenuptial agreement until October 2000.
12 [Plaintiffs Dec., 3]
13 2. Plaintiff’s Attorney Patricia Blyth. In October 2000 the wedding was
14 rescheduled for late that month or early November 2000. On October 7, 2000, defendant
15 presented plaintiff with a new draft of a prenuptial agreement. Defendant told plaintiff she had to
16 sign it,and then take itto an attorney to have it signed. A copy of that draft is attached as Exhibit
17 B to the Declaration of Steven B. Piser In support of Motion To Compel Answers To Deposition
18 Questions.” Plaintiff complied with defendant’s request by signing the draft on October 7 and
19 retaining a new attorney, Patricia Blyth to sign the agreement. [Plaintiff's Dec., ]4; Blyth Dec.,
20 42] Blyth never signed such agreement, and performed no legal services for plaintiff after
21 October 13, 2000. [Blyth Dec., 2] On October 18, 2000, plaintiff learned from her doctor that
22 she had contracted a new STD from defendant, and, as a result, she called off the wedding and
23 terminated her relationship with defendant. No attorney on plaintiffs behalf ever signed the
24 October 7 draft or any other prenuptial agreement. To plaintiff's knowledge defendant never
25 signed the October 7 draft, nor did he tel] her that he had signed any draft of aprenuptial
26 agreement. Plaintiff had no further discussions with defendant regarding any prenuptial
27
28 agreement
"Plaintiff obtained
withthe
a copy
handwritten
of her
comments
files
was
from
inthe
Oleon
file.
inthe
[Buct]
spring
Dec.,
2]
of 2003andgave themtoheraltorney,
RickBuell.
The prenuptial
*Defendant’s
motionto compelanswerstodeposition
questions
isbeingheardat the
sametimeas this
motion.
PLAINTIFF'S OPPOSITION TO DEFENDANT'S
MOTION TO COMPEL PRODUCTION OF DOCUMENT
| __.63/81/ 2004 11:46 4154642812 BUELL BERNER PAGE 49
agreement after October 7, 2000. [Plaintiff Dec., 75]
Forged October 18, 2000, Prenuptial Agreement. Subsequent to
3. The
NH
of plaintiff's deposition in January 2004, defendant produced a prenuptial agreement
completion
YW
plaintiff signed on October 18, 2000. A copy of that October 18 agreement isattached
he claims
RB
as Exhibit A to the Buell Declaration? (Buell Dec., 13] Plaintiff had never seen this document
RH
prior to its production. More importantly, plaintiff never signed the document, especially on
DH
October 18, which is the day she learmed she had contacted a new STD from defendant.
KN
[Plaintiff's Dec., [6] Moreover, Patricia Blyth never signed such agreement and last
oo
performed legal services for plaintiff on October 13, 2000, i.¢.,five days prior to the date she is
wo
purported to have signed the agreement. [Blyth Dec., 42, 3 and 4] There is no doubt that the
GS
October 18 agreement isa forgery.
SH
C. The Document At Issue In This Motion. As stated by defendant inhis moving
DH
sa
papers, an inspection demand under CCP §2031 was served on plaintiff requesting documents
which included the draft prenuptial agreement on which plaintiff made handwritten notes in the
aE
es
presence of Glenn Oleon, and which she leftwith Oleon after her meeting with him, inthe late
summer of 1999, Plaintiff properly and timely objected to the production of such document
Da
based, in part, upon the attorney-client privilege.
I. LEGAL ARGUMENT
Se
A. No Showing of Good Cause Necessary To Require Production. The motion for an —
order compelling further responses must set forth specific facts showing good cause justifying the
SF
discovery sought by the inspection demand. CCP § 2031(m); Weil and Brown, Civil Procedure
®
OR
Before Trial, 98:1495 To establish “good cause,” the burden ison the party seeking to compel
SSB
production to show both: (1) relevance to the subject matter, e.g., how the information in the
documents would tend to prove or disprove some issue in the case; and (2) specific facts
Bo
ReP
justifying discovery, ¢.g.,why such information isnecessary for trialpreparation or to prevent
surprise at trial. Weil and Brown at98:1495.6 Declarations are generally used to show the
be
Be
*TheforgedOctober18,2000,prenuptial
agreementproducedbydefendant
aftercompletion
of plaintiff's
deposition,
appears
tothe
idetitical attached
agreement
prenuptial aa A
Exhibit totheDeclaration B.
of Steven In
Piser supportofMotionTo Compel AnswersTo
Deposition with
Questions, the that
exception such A
Exhibit doesnotappeartobesignedbyBlyth.
PLAINTIFF'S OPPOSITION TO DEFENDANT'S
MOTION TO COMPEL PRODUCTION OF DOCUMENT
— at3/@1/2884d 11:46 4154642812 BUELL BERNER PAGE 18
requisite “good cause” for an order to compel inspection. The declarations must contain “specific
1
facts” rather than mere conclusions. Weil and Brown at 8:1496.7
2
has not shown “good cause” as to why the draft given to Oleon in the
3 Defendant simply
should be produced. The agreement which defendant claims isa binding
4 late summer of 1999
and signed by plaintiff and Blyth is dated October 18, 2000 (plaintiff and Blyth deny
5 prenuptial
they signed this document). Ithas nothing to do with the original draft plaintiff gave to Oleon
6
7 more than a year earlier. Defendant has not set forth in any declaration specific facts
8 demonstrating how the information in the documents would tend to prove or disprove some issue
9 in the case or why such information is necessary for trialpreparation or to prevent surprise at
10 trial.*
il B. Document Protected By Attorney-Client Privilege. Communications between
12 client and counsel are presumed to have been made in confidence and are broadly privileged
13 against discovery. The privilege applies to confidential communications between lawyer and
14 ||client. Weil and Brown at 98:145. Once party asserting the attorney-client privilege makes its
15 initial showing of the preliminary fact as to communication with an attorney, the burden shiftsto
16 the moving party to show that the privilege does not apply. Witkin, 2 California Evidence 4%
17 Ed., Witnesses at §85. Clearly, notes made by plaintiff on the draft prenuptial agreement while
18 discussing the agreement with Oleon, which draft was leftwith Oleon after the meeting,
19 constitute confidential communications protected by the attorney-client privilege.
30 Defendant attempts to defeat the claim of privilege by citing plaintiff's deposition
241 testimony that she did not write comments on the draft before she gave it to Oleon. This
29 testimony has no relevance, because the notes were wiitten on the draft while discussing itwith
3 Oleon, i.2.,
not before she gave itto him.
24 Il. CONCLUSION
25 Defendant has not shown the requisite “good cause” with specific facts required to order
6 production, Furthermore, the document sought is clearly protected by the attorney-client
27 privilege. Plaintiff respectfully requests that defendant’s motion be denied.
28
notndersa shouldbenotedthat not
plaintiffhas the
taken in
position this the
that
action agreement
prenuptial because
binding,
is not shedid
PLAINTIEF'S OPPOSITION TO DEFENDANT'S
MOTION TO COMPEL PRODUCTION OF DOCUMENT
4
@s/Ol/2684 11:46 4154642812 BUELL BERNER PAGE 11
2004 LAW OFFICES OF E. RICK BUELL, II
1 | DATED: March 1,
SN
By:
LY
y E. Rick Buell, I
Attorney for Plaintiff
FF
GWEN R. SYKES
A
DB
wan
Oo
li
12
13
14
15
16
17
18
19
20
21
22
23°
24
25
26
27
28
PLAINTIFF'S OPPOSITION TO DEFENDANT'S
MOTION TO COMPEL PRODUCTION OF DOCUMENT
Preview
83/81/2684 11:46 4154642812 BUELL BERNER PAGE 7 FILED BY FAX E. Rick Buell, II (SBN 63924) ALAMEDA COUNTY LAW OFFICES OF E. RICK BUELL, II Suite 175 March 01, 2004 400 Larkspur Landing Circle, NY Larkspur CA 94939 CLERK OF Tel: (415) 464-2011 THE SUP ERI OR COURT 464-2012 By Rosanne Case, Deputy Fax: (415) RY email: rbyell@buell-Jaw.us CASE NUMBER: RGO3106646 Attorneys for Plaintiff eh GWEN R. SYKES TA SUPERIOR COURT OF THE STATE OF CALIFORNIA oo COUNTY OF ALAMEDA 11 GWEN R. SYKES Case No. RGO3106646 12 Plaintiff, PLAINTIFF’S OPPOSITION TO COMPEL vs. ) DEFENDANT’S MOTION TO 13 PRODUCTION OF DOCUMENT DOUGLAS SYKES, an individual, and 14 DOES 1-20, inclusive Date: March 16, 2003 Time: 2:00 p.m. 15 Defendant. Dept. 31 Reservation No 342285 16 Trial Date: October 1, 2004. 17 18 19 I. FACTUAL STATEMENT 20 A, Nature of Complaint. This is an action brought by plaintiff against defendant 21 seeking damages as a result of defendant: (1) breaching a Marvin (palimony) agreement with 2 plaintiff and (2) infecting plaintiff with herpes and other sexually transmitted diseases (“STD”). 23 B, Background Facts, 24 J. Plaintiff's Attorney Glenn Oleon. Plaintiff and defendant began a 25 relationship in 1991, which they considered formalizing by marriage in late 1999. Prior to 26 getting married, defendant asked plaintiff in the late summer of 1999 to execute a prenuptial 27 agreement, provided her with a draft of such agreement and obtained an attomey named Glenn 28 Oleon for plaintiff to advise her with respect to the prenuptial agreement. Plaintiff took the draft PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO COMPEL PRODUCTION OF DOCUMENT @a/el/2084 11:46 4154642812 BUELL BERNER PAGE 48 and discussed itwith Oleon at his office. agreement provided toher by defendant prenuptial Oleon, she wrote notes on the draft, She apparently forgot While discussing the agreement with the handwritten notes with her when she left Oleon’s office. Oleon retained to take the draft with kw placed itin his filesafter their meeting in the late , the draft with her hand written notes, he summer of 1999,' Plaintiff never signed this draft agreement nor did she retain a copy ofit wh draft agreement again until February 27, 2004, in preparation of this Plaintiff never saw this UA opposition, [Plaintiff's Dec., ]2] After the meeting with Oleon, the marriage plans were postponed by defendant, and wo plaintiff did not have further interaction with Oleon until February 2000, when the marriage 2 plans were again made. However, again the marriage plans were postponed in the spring of 11 2000, and there was no further activity with respect to aprenuptial agreement until October 2000. 12 [Plaintiffs Dec., 3] 13 2. Plaintiff’s Attorney Patricia Blyth. In October 2000 the wedding was 14 rescheduled for late that month or early November 2000. On October 7, 2000, defendant 15 presented plaintiff with a new draft of a prenuptial agreement. Defendant told plaintiff she had to 16 sign it,and then take itto an attorney to have it signed. A copy of that draft is attached as Exhibit 17 B to the Declaration of Steven B. Piser In support of Motion To Compel Answers To Deposition 18 Questions.” Plaintiff complied with defendant’s request by signing the draft on October 7 and 19 retaining a new attorney, Patricia Blyth to sign the agreement. [Plaintiff's Dec., ]4; Blyth Dec., 20 42] Blyth never signed such agreement, and performed no legal services for plaintiff after 21 October 13, 2000. [Blyth Dec., 2] On October 18, 2000, plaintiff learned from her doctor that 22 she had contracted a new STD from defendant, and, as a result, she called off the wedding and 23 terminated her relationship with defendant. No attorney on plaintiffs behalf ever signed the 24 October 7 draft or any other prenuptial agreement. To plaintiff's knowledge defendant never 25 signed the October 7 draft, nor did he tel] her that he had signed any draft of aprenuptial 26 agreement. Plaintiff had no further discussions with defendant regarding any prenuptial 27 28 agreement "Plaintiff obtained withthe a copy handwritten of her comments files was from inthe Oleon file. inthe [Buct] spring Dec., 2] of 2003andgave themtoheraltorney, RickBuell. The prenuptial *Defendant’s motionto compelanswerstodeposition questions isbeingheardat the sametimeas this motion. PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO COMPEL PRODUCTION OF DOCUMENT | __.63/81/ 2004 11:46 4154642812 BUELL BERNER PAGE 49 agreement after October 7, 2000. [Plaintiff Dec., 75] Forged October 18, 2000, Prenuptial Agreement. Subsequent to 3. The NH of plaintiff's deposition in January 2004, defendant produced a prenuptial agreement completion YW plaintiff signed on October 18, 2000. A copy of that October 18 agreement isattached he claims RB as Exhibit A to the Buell Declaration? (Buell Dec., 13] Plaintiff had never seen this document RH prior to its production. More importantly, plaintiff never signed the document, especially on DH October 18, which is the day she learmed she had contacted a new STD from defendant. KN [Plaintiff's Dec., [6] Moreover, Patricia Blyth never signed such agreement and last oo performed legal services for plaintiff on October 13, 2000, i.¢.,five days prior to the date she is wo purported to have signed the agreement. [Blyth Dec., 42, 3 and 4] There is no doubt that the GS October 18 agreement isa forgery. SH C. The Document At Issue In This Motion. As stated by defendant inhis moving DH sa papers, an inspection demand under CCP §2031 was served on plaintiff requesting documents which included the draft prenuptial agreement on which plaintiff made handwritten notes in the aE es presence of Glenn Oleon, and which she leftwith Oleon after her meeting with him, inthe late summer of 1999, Plaintiff properly and timely objected to the production of such document Da based, in part, upon the attorney-client privilege. I. LEGAL ARGUMENT Se A. No Showing of Good Cause Necessary To Require Production. The motion for an — order compelling further responses must set forth specific facts showing good cause justifying the SF discovery sought by the inspection demand. CCP § 2031(m); Weil and Brown, Civil Procedure ® OR Before Trial, 98:1495 To establish “good cause,” the burden ison the party seeking to compel SSB production to show both: (1) relevance to the subject matter, e.g., how the information in the documents would tend to prove or disprove some issue in the case; and (2) specific facts Bo ReP justifying discovery, ¢.g.,why such information isnecessary for trialpreparation or to prevent surprise at trial. Weil and Brown at98:1495.6 Declarations are generally used to show the be Be *TheforgedOctober18,2000,prenuptial agreementproducedbydefendant aftercompletion of plaintiff's deposition, appears tothe idetitical attached agreement prenuptial aa A Exhibit totheDeclaration B. of Steven In Piser supportofMotionTo Compel AnswersTo Deposition with Questions, the that exception such A Exhibit doesnotappeartobesignedbyBlyth. PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO COMPEL PRODUCTION OF DOCUMENT — at3/@1/2884d 11:46 4154642812 BUELL BERNER PAGE 18 requisite “good cause” for an order to compel inspection. The declarations must contain “specific 1 facts” rather than mere conclusions. Weil and Brown at 8:1496.7 2 has not shown “good cause” as to why the draft given to Oleon in the 3 Defendant simply should be produced. The agreement which defendant claims isa binding 4 late summer of 1999 and signed by plaintiff and Blyth is dated October 18, 2000 (plaintiff and Blyth deny 5 prenuptial they signed this document). Ithas nothing to do with the original draft plaintiff gave to Oleon 6 7 more than a year earlier. Defendant has not set forth in any declaration specific facts 8 demonstrating how the information in the documents would tend to prove or disprove some issue 9 in the case or why such information is necessary for trialpreparation or to prevent surprise at 10 trial.* il B. Document Protected By Attorney-Client Privilege. Communications between 12 client and counsel are presumed to have been made in confidence and are broadly privileged 13 against discovery. The privilege applies to confidential communications between lawyer and 14 ||client. Weil and Brown at 98:145. Once party asserting the attorney-client privilege makes its 15 initial showing of the preliminary fact as to communication with an attorney, the burden shiftsto 16 the moving party to show that the privilege does not apply. Witkin, 2 California Evidence 4% 17 Ed., Witnesses at §85. Clearly, notes made by plaintiff on the draft prenuptial agreement while 18 discussing the agreement with Oleon, which draft was leftwith Oleon after the meeting, 19 constitute confidential communications protected by the attorney-client privilege. 30 Defendant attempts to defeat the claim of privilege by citing plaintiff's deposition 241 testimony that she did not write comments on the draft before she gave it to Oleon. This 29 testimony has no relevance, because the notes were wiitten on the draft while discussing itwith 3 Oleon, i.2., not before she gave itto him. 24 Il. CONCLUSION 25 Defendant has not shown the requisite “good cause” with specific facts required to order 6 production, Furthermore, the document sought is clearly protected by the attorney-client 27 privilege. Plaintiff respectfully requests that defendant’s motion be denied. 28 notndersa shouldbenotedthat not plaintiffhas the taken in position this the that action agreement prenuptial because binding, is not shedid PLAINTIEF'S OPPOSITION TO DEFENDANT'S MOTION TO COMPEL PRODUCTION OF DOCUMENT 4 @s/Ol/2684 11:46 4154642812 BUELL BERNER PAGE 11 2004 LAW OFFICES OF E. RICK BUELL, II 1 | DATED: March 1, SN By: LY y E. Rick Buell, I Attorney for Plaintiff FF GWEN R. SYKES A DB wan Oo li 12 13 14 15 16 17 18 19 20 21 22 23° 24 25 26 27 28 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO COMPEL PRODUCTION OF DOCUMENT