Preview
Richard Abel
1
707 Hahman Drive, No. 9301
2 Santa Rosa, CA 95405
Telephone: (707) 340-3894
3
4 Plaintiff, In pro per
5
6
7
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
FOR THE COUNTY OF SONOMA
10
RICHARD ABEL, an individual; Case Number: SCV-263456
11
MEMORANDUM OF POINTS AND
12
Plaintiff; AUTHORITIES IN SUPPORT OF
v. PLAINTIFF'S MOTION TO COMPEL
13 FURTHER RESPONSES, AND FOR
B. EDWARD McCUTCHAN JR. an SANCTIONS AGAINST DEFENDANT
14 DALE DAVIS
individual; SUNDERLAND/McCUTCHAN,
15 LLP, a general partnership; and DOES 1
through 100, inclusive;
16 Date:
Defendants. Time:
17
Dept: 18
18 Trial Date: October 7, 2022
19
20 TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD:
21 This Memorandum of Points and Authorities is hereby submitted by plaintiff Richard
22 Abel ("Plaintiff"), in support of Plaintiff's Motion to Compel Further Responses, and for
23 sanctions, from defendant Dale Davis ("Defendant") for his failure to respond to discovery in
24 good faith and in full compliance with the Discovery Act. Defendant's non-compliance is in
25 violation of the rules of Civil Procedure and has caused prejudice to Plaintiff.
I.
26 INTRODUCTION
27 On December 23, 2021, Defendant filed an answer in this action which included twenty-
28 four (24) affirmative defenses, and three (3) exhibits.
MEMORANDUM OF POINTS AND AUTHORITIES
1
1 On December 29, 2021, Plaintiff served written discovery to Defendant seeking facts for
2 Defendant's affirmative defenses in his Answer. Plaintiff served Form Interrogatories, Set Two,
3 requesting information for No. 1.0 and No. 15.0 only, on the approved Judicial Council form.
4 Form Interrogatory No. 15.0 asks the Defendant to “state all facts upon which you base the
5 denial or special or affirmative defense.” Plaintiff also served twelve (12) Special
6 Interrogatories seeking facts that support Defendant's allegations plead in Defendant's answer.
7 On January 15, 2022, Defendant served unverified responses to the Discovery, with the
8 same boilerplate objections to each request. No substantive response was made, and no
9 information was provided by Defendant.
10 Plaintiff attempted to meet and confer with counsel for Defendant, Mr. B. Edward
11 McCutchan, Jr. (“McCutchan”). Plaintiff also sent a letter to Mr. McCutchan to meet and confer
12 on this matter, by both fax and by U.S. mail. Mr. McCutchan advised Plaintiff to never call him,
13 and will not discuss anything with Plaintiff over the telephone.
14 Plaintiff seeks an order from the Court compelling Defendant to provide further, and
15 code-compliant verified responses to the two (2) Form Interrogatories pursuant to CCP §
16
2030.300; further and code-compliant verified responses to the twelve (12) Special
17
Interrogatories pursuant to CCP § 2030.300. Plaintiff finds that the repetitive boilerplate
18
objections used by Defendant to evade discovery here are without merit and too general.
19
Plaintiff seeks an order pursuant to CCP §2030.210(a), striking Defendant's “General
20
Objections” preambles in each of Defendant's responding briefs. “General Objections” are not
21
allowed under the Discovery Act.
22
The Court should conclude after reviewing these repetitive boilerplate objections and by
23
his refusal to meet and confer in good faith, that pursuant to CCP § 2023.010, Defendant and Mr.
24
McCutchan's obstructive tactics are a misuse of the discovery process.
25
Additionally, Plaintiff requests the Court to assess sanctions pursuant to CCP §2030.300,
26
Plaintiff requests monetary sanctions against Defendant in the amount of $218.31.
27
Plaintiff also requests issue sanctions, striking all of Defendant's affirmative defenses.
28
MEMORANDUM OF POINTS AND AUTHORITIES
2
II.
1
STATEMENT OF FACTS
2
On December 22, 2021, Mr. McCutchan sent an e-mail to Plaintiff which stated:
3
“All communication between you and this office needs to be in writing for many reasons that I
4
do not care to elaborate on. There will be no face to face meeting particularly in light of the rise
5
in another COVID-19 variant, the Omicron. There will be no telephone calls between us or in
6
person meetings. All communications will be by emails or facsimile.” (See, Abel Decl. ¶9).
7
On December 23, 2021, Defendant filed an answer in this action with twenty-four (24)
8
affirmative defenses. (See, Abel Decl. ¶10).
9
On December 29, 2021, Plaintiff propounded and served written discovery to Defendant
10
for the purpose of obtaining information and facts that support the allegations plead in
11
Defendant's answer. This discovery was limited to Form Interrogatories, Set Two for Form
12
Interrogatories Nos. 1.0 and 15.0; and twelve (12) Special Interrogatories (collectively “the
13
Discovery” herein). (See, Abel Decl. ¶11).
14
On January 15, 2022, Defendant served unverified responses to Plaintiff's Discovery with
15
no answers, but only objections. Defendant made the same boilerplate objections to each
16
Discovery request. Defendant simply cut and paste the same objections without any thought nor
17
reason, irregardless of whether the objections applied. (See, Abel Decl. ¶12).
18
On January 22, 2022, Plaintiff sent a detailed meet and confer letter to counsel
19
McCutchan, explaining why Defendant's objections were without merit, why the responses did
20
not comply with the Discovery Act. Plaintiff asked Mccutchan if he would amend the responses.
21
Plaintiff requested an answer by January 31, 2022. (See, Abel Decl. ¶13).
22
On February 7, 2022, Plaintiff received a letter from Mr. McCutchan in response.
23
However, McCutchan did not address the issues presented in Plaintiff's meet and confer letter.
24
Instead, Mr. McCutchan digressed to argue about the merits of the case, and repeated the
25
argument made in his motion for judgment on the pleadings. (See, Abel Decl. ¶14).
26
On February 7, 2022, Plaintiff repeated his question if amended responses would be
27
forthcoming, and gave February 18 as a due date. Plaintiff received no answer from McCutchan
28
to Plaintiff's direct question if amended responses would be served. (See, Abel Decl. ¶15).
MEMORANDUM OF POINTS AND AUTHORITIES
3
III.
1
LAW AND ARGUMENT
2 A. The Discovery Was Lawfully Propounded
3 After being served with process, any party in a civil action may propound discovery to a
4 party without leave of court at any time that is 10 days after the service of the summons on that
5 party. (See, Code Civ.Proc. §2030.020 as to interrogatories.)
6 The responses and documents that Plaintiff seeks, are related to the answer (the
7
"Answer") filed by Defendant on December 23, 2021. (See, Abel Decl. ¶11).
8
B. Defendant's Responses Are Unverified
9
No verification was served by Defendant. (See, Abel Decl. ¶12).
10
C. An Unverified Response is Tantamount to No Response
11
Case law provides that an unverified response is tantamount to no response at all (Allen-
12
Pacific, Ltd. v. Superior Court (1997) 57 Cal.App.4th 1546; Appleton v. Superior Court (1988)
13
206 Cal.App.3d 632, 636; Zorro Inv. Co. v. Great Pacific Securities Corp. (1977) 69 Cal. App.
14
3D 907, 914).
15
A failure to timely respond to discovery results in a waiver of legal objections. See, e.g,
16
CCP Secs. 2030.290(a), 2031.300(a), 2033.280(a); Demyer v. Costa Mesa Mobile Homes
17
Estates, (1995) 36 Cal. App.4th 393, 394.
18
D. A General Objections Preamble is Not Allowed Under the Discovery Act
19
Each of Defendant's responses to the Discovery begins with a preamble of boilerplate
20
General Objections. (See, Abel Decl. Ex. D). A General Objections preamble is not allowed
21
under the Discovery Act. The use of this preamble attempts to relieve Defendant of all
22
obligations required of him by the Discovery Act. It also gives the responding party the ability
23
to modify its responses and raise any objections at any time including trial with no ramifications.
24
“Discovery and Investigation are in the beginning stages” is not a valid legal objection. In other
25
words, with the use of this preamble, Defendant has provided worthless discovery responses that
26
the Defendant cannot be bound to.
27
The General Objections used by Defendant are simply boilerplate, and not based on any
28
statutory authority nor found in any case law.
MEMORANDUM OF POINTS AND AUTHORITIES
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1 The Discovery Act does not authorize such a preamble or general objections. Instead the
2 Discovery Act requires the party to respond in writing to each interrogatory. (See, CCP §
3 2030.210). This is a misuse of the discovery procedure.
4 Even though several interrogatories, requests for documents and request for admissions
5 may be objectionable on the same ground, they may not be objected to as a group. (See, Hogan
6 and Weber, California Civil Discovery (2d. Ed 2009) §51).
7 This is the fourth (4th) time that McCutchan has inserted a preamble of general
8 objections into his discovery responses. McCutchan has consistently obstructed the discovery
9 efforts of Plaintiff in this action with meritless objections, starting from the very first motion to
10 compel on May 7, 2019. McCutchan refused to comply with the order, and then Plaintiff had to
11 file a second motion to compel, heard August 7, 2019. (See, Abel Decl. ¶16; Request for
12 Judicial Notice, Ex. A).
13
E. Defendant's Boilerplate Objections Are Without Merit
14
As set forth in Plaintiff's Separate Statement filed herewith, Defendant's objections are
15
without merit. These objections are summarized here:
16
Objection 1. There is a motion for judgment on the pleadings by Dale Davis and the naming of
17 Dale Davis as DOE 4 in this action on statute of limitations grounds where
18 Richard Abel's claims as to Dale Davis lacks legal and factual basis warranting
monetary sanctions being assessed against Richard Abel.
19
Why this objection should be overruled:
20
1. A pending motion is not grounds for objection. California law permits
21 discovery to proceed while the pleadings develop. (See, CCP §2033.020(b);
Budget Finance Plan v. Superior Court (1973) 34 Cal.App. 3d 794, 797-798.)
22
23 Objection 2. The discovery is not reasonable calculated to lead to admissible evidence as
to the issues framed by the first amended complaint.
24
25
Why this objection should be overruled:
2. The discovery seeks the facts and factual basis for what Defendant plead in his
26 Answer. (See, Union Mut. Life Ins. Co. v. Superior Court (1978) 80 Cal.App.3d
1; Williams v. Superior Court (2017) 3 Cal.5th 531, 541; see Davies v. Superior
27
Court (1984) 36 Cal.3d 291, 301["discovery is not limited to admissible
28 evidence"].)
MEMORANDUM OF POINTS AND AUTHORITIES
5
1
Objection 3. Richard Abel failed to comply with the Code of Civil Procedure as to proper
2 service of this discovery where the proof of service is not signed.
3
Why this objection should be overruled:
4 3. CCP § 1013(b) states that the copy of the notice or other paper served by mail
pursuant to this chapter shall be accompanied by an unsigned copy of the
5 affidavit or certificate of mailing. Whether or not the proof of service was
6
signed, Defendant waived this objection by answering the discovery.
7 Objection 4. This discovery like Richard Abel's naming of Dale Davis as DOE 4 herein is an
example of plaintiff's frivolous conduct warranting him being deemed by this
8
court as a vexatious litigant.
9
Why this objection should be overruled:
10 4. This conclusory comment about "frivolous conduct" is mere opinion, and not
11 grounds for objection. Plaintiff is entitled to discovery of the facts supporting
the affirmative defenses plead by Defendant in his Answer.
12
Objection 5. The request is argumentative and calls for a legal conclusion.
13
14 Why this objection should be overruled:
5. The requests are not argumentative, and do not require a legal conclusion. A
15
party has a duty to answer in good faith if “the nature of the information sought
16 is apparent.” (Deyo v. Kilbourne (1978) 84 CA 3d 771, 783). Legal and factual
opinions are generally proper subjects of requests to admit. (Chodos v. Superior
17 Court (1963), 215 Cal.App. 2d 318). It is generally proper to seek admissions
18
as to "ultimate conclusions of fact." (Gribin Von Dyl & Assoc. v. Kovalsky
(1986) 185 Cal.App.3d 653).
19
Objection 6. The request is overbroad, vague, lacks particularity and requires responding party
20
to speculate in that there are no charging allegations against objecting party in the
21 first amended complaint.
22
Why this objection should be overruled:
23 6. The request seeks facts supporting Defendant's denials and affirmative
defenses plead in Defendant's Answer. If Defendant has to speculate about the
24 facts in its own Answer, then there must be no factual basis for Defendant's
25
Answer. Blanket, unsupported objections that a discovery request is “vague,
overly broad, or unduly burdensome” are, by themselves, meaningless, and
26 disregarded by the Court. A party objecting on these bases must explain the
specific grounds in which a request is vague, overly broad, or unduly
27
burdensome. (See, CCP §2030.240.) Here, Defendant has not provided
28 any facts to support his boilerplate objections.
MEMORANDUM OF POINTS AND AUTHORITIES
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Objection 7. The discovery requests are very broad, and their full scope does not appear
1
reasonably related to the issues in the case and do not appear reasonably related to
2 a legitimate discovery need and have been sent to harass and improperly burden.
(Obregon v. Superior Court (1998) 67 Cal.App. 4th 424).
3
4 Why this objection should be overruled:
7. The discovery seeks facts supporting Defendant's denials and affirmative
5 defenses plead in Defendant's Answer. Apparently then, there was no factual
6
basis for Defendant's Answer. Two (2) Form Interrogatories on the approved
judicial council form, and twelve (12) Special Interrogatories is not
7 burdensome.
8
Objection 8. The request invades the attorney client and work product privileges.
9
Why this objection should be overruled:
10 8. Plaintiff and Defendant were jointly represented by McCutchan in the
11 underlying Liebling Action. (See, Abel Decl. ¶6). There is no privilege in a civil
proceeding between two clients represented by the same attorney. (See, Evid.
12 Code §962; Zador Corp. v. Kwan (1995) 31 Cal.App.4th.1285, 1294.) This
request is not asking for any privileged information anyway.
13
14 Objection 9. The matter is subject to a January 21, 2022 OSC re a discovery referee to become
involved.
15
16 Why this objection should be overruled:
Not a valid objection. The objection is now moot anyway, because no discovery
17 referee was appointed.
18
F. The Court has Authority to Compel Further Responses to Interrogatories
19
Code Civ.Proc. §2030.300(a) states in pertinent part that,
20
21 ”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
22
any of the following apply:
23 (1) An answer to a particular interrogatory is evasive or incomplete..
24
(2) An exercise of the option to produce documents under Section 2030.230 is
unwarranted or the required specification of those documents is inadequate.
25 (3) An objection to an interrogatory is without merit or too general.“
26
Code Civ.Proc. § 2030.220 requires:
27
28 (a) Each answer in a response to interrogatories shall be as complete and
straightforward as the information reasonably available to the responding
MEMORANDUM OF POINTS AND AUTHORITIES
7
party permits;
1
2 (b) If an interrogatory cannot be answered completely, it shall be answered to
the extent possible;
3
4 (c) If the responding party does not have personal knowledge sufficient to
respond fully to an interrogatory, that party shall so state, but shall make a
5 reasonable and good faith effort to obtain the information by inquiry to other
6
natural persons or organizations, except where the information is equally
available to the propounding party.
7
8 G. Defendant's Counsel McCutchan Refused to Meet and Confer With Plaintiff
9 Plaintiff has made attempts to meet and confer with counsel McCutchan to try to resolve
10 this discovery dispute. However, Mr. McCutchan refuses to answer the phone and talk, nor did
11 he respond to Plaintiff's letter. Trying to meet and confer with Edward McCutchan is futile.
12 (See, Abel Decl. ¶¶ 9, 13, 14, 15).
13 Obstruction is McCutchan's discovery plan.
14
15
H. If this Motion is Granted, the Court Shall Order Defendant to
Pay Monetary Sanctions, Even if Defendant Provides Late Responses
16
Code Civ.Proc. §§ 2030.300(d) states that the court shall impose a monetary sanction
17
against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel.
18
“The court may award sanctions … even though no opposition to the motion was filed,
19
… or the requested discovery was provided … after the motion was filed.” California Rules of
20
Court Rule 3.1348.
21
As supported by Plaintiff's Declaration, Plaintiff's reasonable costs in bringing this
22
motion are $218.31. (See, Abel Decl. ¶ 18). Therefore, if this motion is granted, the Court
23
must order Defendant to pay Plaintiff his reasonable costs incurred in bringing this motion, even
24
if amended responses are served late.
25
26 I. The Court Should Strike All of Defendant's Affirmative Defenses
27 Repeated discovery abuse by McCutchan warrants further relief here. The purpose of this
28 discovery was to enable Plaintiff to obtain information and facts supporting the denials and
MEMORANDUM OF POINTS AND AUTHORITIES
8
Preview
Richard Abel 1 707 Hahman Drive, No. 9301 2 Santa Rosa, CA 95405 Telephone: (707) 340-3894 3 4 Plaintiff, In pro per 5 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SONOMA 10 RICHARD ABEL, an individual; Case Number: SCV-263456 11 MEMORANDUM OF POINTS AND 12 Plaintiff; AUTHORITIES IN SUPPORT OF v. PLAINTIFF'S MOTION TO COMPEL 13 FURTHER RESPONSES, AND FOR B. EDWARD McCUTCHAN JR. an SANCTIONS AGAINST DEFENDANT 14 DALE DAVIS individual; SUNDERLAND/McCUTCHAN, 15 LLP, a general partnership; and DOES 1 through 100, inclusive; 16 Date: Defendants. Time: 17 Dept: 18 18 Trial Date: October 7, 2022 19 20 TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD: 21 This Memorandum of Points and Authorities is hereby submitted by plaintiff Richard 22 Abel ("Plaintiff"), in support of Plaintiff's Motion to Compel Further Responses, and for 23 sanctions, from defendant Dale Davis ("Defendant") for his failure to respond to discovery in 24 good faith and in full compliance with the Discovery Act. Defendant's non-compliance is in 25 violation of the rules of Civil Procedure and has caused prejudice to Plaintiff. I. 26 INTRODUCTION 27 On December 23, 2021, Defendant filed an answer in this action which included twenty- 28 four (24) affirmative defenses, and three (3) exhibits. MEMORANDUM OF POINTS AND AUTHORITIES 1 1 On December 29, 2021, Plaintiff served written discovery to Defendant seeking facts for 2 Defendant's affirmative defenses in his Answer. Plaintiff served Form Interrogatories, Set Two, 3 requesting information for No. 1.0 and No. 15.0 only, on the approved Judicial Council form. 4 Form Interrogatory No. 15.0 asks the Defendant to “state all facts upon which you base the 5 denial or special or affirmative defense.” Plaintiff also served twelve (12) Special 6 Interrogatories seeking facts that support Defendant's allegations plead in Defendant's answer. 7 On January 15, 2022, Defendant served unverified responses to the Discovery, with the 8 same boilerplate objections to each request. No substantive response was made, and no 9 information was provided by Defendant. 10 Plaintiff attempted to meet and confer with counsel for Defendant, Mr. B. Edward 11 McCutchan, Jr. (“McCutchan”). Plaintiff also sent a letter to Mr. McCutchan to meet and confer 12 on this matter, by both fax and by U.S. mail. Mr. McCutchan advised Plaintiff to never call him, 13 and will not discuss anything with Plaintiff over the telephone. 14 Plaintiff seeks an order from the Court compelling Defendant to provide further, and 15 code-compliant verified responses to the two (2) Form Interrogatories pursuant to CCP § 16 2030.300; further and code-compliant verified responses to the twelve (12) Special 17 Interrogatories pursuant to CCP § 2030.300. Plaintiff finds that the repetitive boilerplate 18 objections used by Defendant to evade discovery here are without merit and too general. 19 Plaintiff seeks an order pursuant to CCP §2030.210(a), striking Defendant's “General 20 Objections” preambles in each of Defendant's responding briefs. “General Objections” are not 21 allowed under the Discovery Act. 22 The Court should conclude after reviewing these repetitive boilerplate objections and by 23 his refusal to meet and confer in good faith, that pursuant to CCP § 2023.010, Defendant and Mr. 24 McCutchan's obstructive tactics are a misuse of the discovery process. 25 Additionally, Plaintiff requests the Court to assess sanctions pursuant to CCP §2030.300, 26 Plaintiff requests monetary sanctions against Defendant in the amount of $218.31. 27 Plaintiff also requests issue sanctions, striking all of Defendant's affirmative defenses. 28 MEMORANDUM OF POINTS AND AUTHORITIES 2 II. 1 STATEMENT OF FACTS 2 On December 22, 2021, Mr. McCutchan sent an e-mail to Plaintiff which stated: 3 “All communication between you and this office needs to be in writing for many reasons that I 4 do not care to elaborate on. There will be no face to face meeting particularly in light of the rise 5 in another COVID-19 variant, the Omicron. There will be no telephone calls between us or in 6 person meetings. All communications will be by emails or facsimile.” (See, Abel Decl. ¶9). 7 On December 23, 2021, Defendant filed an answer in this action with twenty-four (24) 8 affirmative defenses. (See, Abel Decl. ¶10). 9 On December 29, 2021, Plaintiff propounded and served written discovery to Defendant 10 for the purpose of obtaining information and facts that support the allegations plead in 11 Defendant's answer. This discovery was limited to Form Interrogatories, Set Two for Form 12 Interrogatories Nos. 1.0 and 15.0; and twelve (12) Special Interrogatories (collectively “the 13 Discovery” herein). (See, Abel Decl. ¶11). 14 On January 15, 2022, Defendant served unverified responses to Plaintiff's Discovery with 15 no answers, but only objections. Defendant made the same boilerplate objections to each 16 Discovery request. Defendant simply cut and paste the same objections without any thought nor 17 reason, irregardless of whether the objections applied. (See, Abel Decl. ¶12). 18 On January 22, 2022, Plaintiff sent a detailed meet and confer letter to counsel 19 McCutchan, explaining why Defendant's objections were without merit, why the responses did 20 not comply with the Discovery Act. Plaintiff asked Mccutchan if he would amend the responses. 21 Plaintiff requested an answer by January 31, 2022. (See, Abel Decl. ¶13). 22 On February 7, 2022, Plaintiff received a letter from Mr. McCutchan in response. 23 However, McCutchan did not address the issues presented in Plaintiff's meet and confer letter. 24 Instead, Mr. McCutchan digressed to argue about the merits of the case, and repeated the 25 argument made in his motion for judgment on the pleadings. (See, Abel Decl. ¶14). 26 On February 7, 2022, Plaintiff repeated his question if amended responses would be 27 forthcoming, and gave February 18 as a due date. Plaintiff received no answer from McCutchan 28 to Plaintiff's direct question if amended responses would be served. (See, Abel Decl. ¶15). MEMORANDUM OF POINTS AND AUTHORITIES 3 III. 1 LAW AND ARGUMENT 2 A. The Discovery Was Lawfully Propounded 3 After being served with process, any party in a civil action may propound discovery to a 4 party without leave of court at any time that is 10 days after the service of the summons on that 5 party. (See, Code Civ.Proc. §2030.020 as to interrogatories.) 6 The responses and documents that Plaintiff seeks, are related to the answer (the 7 "Answer") filed by Defendant on December 23, 2021. (See, Abel Decl. ¶11). 8 B. Defendant's Responses Are Unverified 9 No verification was served by Defendant. (See, Abel Decl. ¶12). 10 C. An Unverified Response is Tantamount to No Response 11 Case law provides that an unverified response is tantamount to no response at all (Allen- 12 Pacific, Ltd. v. Superior Court (1997) 57 Cal.App.4th 1546; Appleton v. Superior Court (1988) 13 206 Cal.App.3d 632, 636; Zorro Inv. Co. v. Great Pacific Securities Corp. (1977) 69 Cal. App. 14 3D 907, 914). 15 A failure to timely respond to discovery results in a waiver of legal objections. See, e.g, 16 CCP Secs. 2030.290(a), 2031.300(a), 2033.280(a); Demyer v. Costa Mesa Mobile Homes 17 Estates, (1995) 36 Cal. App.4th 393, 394. 18 D. A General Objections Preamble is Not Allowed Under the Discovery Act 19 Each of Defendant's responses to the Discovery begins with a preamble of boilerplate 20 General Objections. (See, Abel Decl. Ex. D). A General Objections preamble is not allowed 21 under the Discovery Act. The use of this preamble attempts to relieve Defendant of all 22 obligations required of him by the Discovery Act. It also gives the responding party the ability 23 to modify its responses and raise any objections at any time including trial with no ramifications. 24 “Discovery and Investigation are in the beginning stages” is not a valid legal objection. In other 25 words, with the use of this preamble, Defendant has provided worthless discovery responses that 26 the Defendant cannot be bound to. 27 The General Objections used by Defendant are simply boilerplate, and not based on any 28 statutory authority nor found in any case law. MEMORANDUM OF POINTS AND AUTHORITIES 4 1 The Discovery Act does not authorize such a preamble or general objections. Instead the 2 Discovery Act requires the party to respond in writing to each interrogatory. (See, CCP § 3 2030.210). This is a misuse of the discovery procedure. 4 Even though several interrogatories, requests for documents and request for admissions 5 may be objectionable on the same ground, they may not be objected to as a group. (See, Hogan 6 and Weber, California Civil Discovery (2d. Ed 2009) §51). 7 This is the fourth (4th) time that McCutchan has inserted a preamble of general 8 objections into his discovery responses. McCutchan has consistently obstructed the discovery 9 efforts of Plaintiff in this action with meritless objections, starting from the very first motion to 10 compel on May 7, 2019. McCutchan refused to comply with the order, and then Plaintiff had to 11 file a second motion to compel, heard August 7, 2019. (See, Abel Decl. ¶16; Request for 12 Judicial Notice, Ex. A). 13 E. Defendant's Boilerplate Objections Are Without Merit 14 As set forth in Plaintiff's Separate Statement filed herewith, Defendant's objections are 15 without merit. These objections are summarized here: 16 Objection 1. There is a motion for judgment on the pleadings by Dale Davis and the naming of 17 Dale Davis as DOE 4 in this action on statute of limitations grounds where 18 Richard Abel's claims as to Dale Davis lacks legal and factual basis warranting monetary sanctions being assessed against Richard Abel. 19 Why this objection should be overruled: 20 1. A pending motion is not grounds for objection. California law permits 21 discovery to proceed while the pleadings develop. (See, CCP §2033.020(b); Budget Finance Plan v. Superior Court (1973) 34 Cal.App. 3d 794, 797-798.) 22 23 Objection 2. The discovery is not reasonable calculated to lead to admissible evidence as to the issues framed by the first amended complaint. 24 25 Why this objection should be overruled: 2. The discovery seeks the facts and factual basis for what Defendant plead in his 26 Answer. (See, Union Mut. Life Ins. Co. v. Superior Court (1978) 80 Cal.App.3d 1; Williams v. Superior Court (2017) 3 Cal.5th 531, 541; see Davies v. Superior 27 Court (1984) 36 Cal.3d 291, 301["discovery is not limited to admissible 28 evidence"].) MEMORANDUM OF POINTS AND AUTHORITIES 5 1 Objection 3. Richard Abel failed to comply with the Code of Civil Procedure as to proper 2 service of this discovery where the proof of service is not signed. 3 Why this objection should be overruled: 4 3. CCP § 1013(b) states that the copy of the notice or other paper served by mail pursuant to this chapter shall be accompanied by an unsigned copy of the 5 affidavit or certificate of mailing. Whether or not the proof of service was 6 signed, Defendant waived this objection by answering the discovery. 7 Objection 4. This discovery like Richard Abel's naming of Dale Davis as DOE 4 herein is an example of plaintiff's frivolous conduct warranting him being deemed by this 8 court as a vexatious litigant. 9 Why this objection should be overruled: 10 4. This conclusory comment about "frivolous conduct" is mere opinion, and not 11 grounds for objection. Plaintiff is entitled to discovery of the facts supporting the affirmative defenses plead by Defendant in his Answer. 12 Objection 5. The request is argumentative and calls for a legal conclusion. 13 14 Why this objection should be overruled: 5. The requests are not argumentative, and do not require a legal conclusion. A 15 party has a duty to answer in good faith if “the nature of the information sought 16 is apparent.” (Deyo v. Kilbourne (1978) 84 CA 3d 771, 783). Legal and factual opinions are generally proper subjects of requests to admit. (Chodos v. Superior 17 Court (1963), 215 Cal.App. 2d 318). It is generally proper to seek admissions 18 as to "ultimate conclusions of fact." (Gribin Von Dyl & Assoc. v. Kovalsky (1986) 185 Cal.App.3d 653). 19 Objection 6. The request is overbroad, vague, lacks particularity and requires responding party 20 to speculate in that there are no charging allegations against objecting party in the 21 first amended complaint. 22 Why this objection should be overruled: 23 6. The request seeks facts supporting Defendant's denials and affirmative defenses plead in Defendant's Answer. If Defendant has to speculate about the 24 facts in its own Answer, then there must be no factual basis for Defendant's 25 Answer. Blanket, unsupported objections that a discovery request is “vague, overly broad, or unduly burdensome” are, by themselves, meaningless, and 26 disregarded by the Court. A party objecting on these bases must explain the specific grounds in which a request is vague, overly broad, or unduly 27 burdensome. (See, CCP §2030.240.) Here, Defendant has not provided 28 any facts to support his boilerplate objections. MEMORANDUM OF POINTS AND AUTHORITIES 6 Objection 7. The discovery requests are very broad, and their full scope does not appear 1 reasonably related to the issues in the case and do not appear reasonably related to 2 a legitimate discovery need and have been sent to harass and improperly burden. (Obregon v. Superior Court (1998) 67 Cal.App. 4th 424). 3 4 Why this objection should be overruled: 7. The discovery seeks facts supporting Defendant's denials and affirmative 5 defenses plead in Defendant's Answer. Apparently then, there was no factual 6 basis for Defendant's Answer. Two (2) Form Interrogatories on the approved judicial council form, and twelve (12) Special Interrogatories is not 7 burdensome. 8 Objection 8. The request invades the attorney client and work product privileges. 9 Why this objection should be overruled: 10 8. Plaintiff and Defendant were jointly represented by McCutchan in the 11 underlying Liebling Action. (See, Abel Decl. ¶6). There is no privilege in a civil proceeding between two clients represented by the same attorney. (See, Evid. 12 Code §962; Zador Corp. v. Kwan (1995) 31 Cal.App.4th.1285, 1294.) This request is not asking for any privileged information anyway. 13 14 Objection 9. The matter is subject to a January 21, 2022 OSC re a discovery referee to become involved. 15 16 Why this objection should be overruled: Not a valid objection. The objection is now moot anyway, because no discovery 17 referee was appointed. 18 F. The Court has Authority to Compel Further Responses to Interrogatories 19 Code Civ.Proc. §2030.300(a) states in pertinent part that, 20 21 ”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 22 any of the following apply: 23 (1) An answer to a particular interrogatory is evasive or incomplete.. 24 (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. 25 (3) An objection to an interrogatory is without merit or too general.“ 26 Code Civ.Proc. § 2030.220 requires: 27 28 (a) Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding MEMORANDUM OF POINTS AND AUTHORITIES 7 party permits; 1 2 (b) If an interrogatory cannot be answered completely, it shall be answered to the extent possible; 3 4 (c) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a 5 reasonable and good faith effort to obtain the information by inquiry to other 6 natural persons or organizations, except where the information is equally available to the propounding party. 7 8 G. Defendant's Counsel McCutchan Refused to Meet and Confer With Plaintiff 9 Plaintiff has made attempts to meet and confer with counsel McCutchan to try to resolve 10 this discovery dispute. However, Mr. McCutchan refuses to answer the phone and talk, nor did 11 he respond to Plaintiff's letter. Trying to meet and confer with Edward McCutchan is futile. 12 (See, Abel Decl. ¶¶ 9, 13, 14, 15). 13 Obstruction is McCutchan's discovery plan. 14 15 H. If this Motion is Granted, the Court Shall Order Defendant to Pay Monetary Sanctions, Even if Defendant Provides Late Responses 16 Code Civ.Proc. §§ 2030.300(d) states that the court shall impose a monetary sanction 17 against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel. 18 “The court may award sanctions … even though no opposition to the motion was filed, 19 … or the requested discovery was provided … after the motion was filed.” California Rules of 20 Court Rule 3.1348. 21 As supported by Plaintiff's Declaration, Plaintiff's reasonable costs in bringing this 22 motion are $218.31. (See, Abel Decl. ¶ 18). Therefore, if this motion is granted, the Court 23 must order Defendant to pay Plaintiff his reasonable costs incurred in bringing this motion, even 24 if amended responses are served late. 25 26 I. The Court Should Strike All of Defendant's Affirmative Defenses 27 Repeated discovery abuse by McCutchan warrants further relief here. The purpose of this 28 discovery was to enable Plaintiff to obtain information and facts supporting the denials and MEMORANDUM OF POINTS AND AUTHORITIES 8