SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES

Transcription

1 1 1 [attorney name redacted], Esq. (CSBN ///////////) ////////////// ////////////// ////////////// ////////////// ////////////// Attorneys for Defendant Mary Hinds Note: all names have been changed. Ted Simons and Phillip Haas, Plaintiffs Mary Hinds, Defendant v. SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES Case Number: Complaint Filed: [redacted] [redacted] DEFENDANT S NOTICE OF MOTION AND MOTION FOR AN ORDER COMPELLING ANSWERS TO INTERROGATORIES AND FOR MONETARY SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ATTORNEY Proof of Service filed concurrently herewith; [Proposed] Order lodged herewith. Hearing Date Hearing Time Hearing Department :0 a.m. 0 Discovery Cut-Off Date: Motion Cut-Off Date: Trial Date: None Set None Set None Set 1 TO THE COURT, PLAINTIFFS TED SIMONS AND PHILLIP HAAS, AND HER COUNSEL OF RECORD: PLEASE TAKE NOTICE AND NOTICE IS HEREBY GIVEN THAT on, 00 at :0 a.m., in Department of the Los Angeles Superior Court, Santa Monica Courthouse, located at [redacted], Defendant Mary Hinds (hereinafter 1

2 HINDS ), will, and hereby does, move the court for an for an order compelling Plaintiffs Ted Simons (hereinafter SIMONS ) and Phillip Haas (hereinafter HAAS, and collectively with SIMONS, PLAINTIFFS ) to answer the following interrogatories: Form Interrogatories to Ted Simons, Set One (hereinafter the SIMONS FORM ROGGS ) consisting of interrogatories and set forth in Exhibit A attached hereto; Special Interrogatories to Ted Simons, Set One (hereinafter the SIMONS SPECIAL ROGGS ) consisting of interrogatories and set forth in Exhibit B attached hereto; Form Interrogatories to Phillip Haas, Set One (hereinafter the HAAS FORM ROGGS ) consisting of interrogatories and set forth in Exhibit C attached hereto; and Special Interrogatories to Jamie William, Set One (hereinafter the HAAS SPECIAL ROGGS ) consisting of interrogatories and set forth in Exhibit D attached hereto, all of which were lawfully served on PLAINTIFFS on December, 00, and imposing a $1,0 monetary sanction against PLAINTIFFS for their misuse of the discovery process, which sum is the reasonable costs and attorney fees incurred by HINDS for bringing this motion. The proof of service for the SIMONS FORM ROGGS and the SIMONS SPECIAL ROGGS is set forth in Exhibit E attached hereto, and the proof of service for the HAAS FORM ROGGS and the HAAS SPECIAL ROGGS is set forth in Exhibit F attached hereto. Hereinafter, these four said sets of interrogatories are collectively referred to as the INTERROGATORIES. Unlabeled section numbers herein refer to the Code of Civil Procedure. The Motion is made on the following grounds: (a) HINDS propounded the INTERROGATORIES and other discovery on PLAINTIFFS for the purpose of obtaining admissible evidence, or to

3 lead to the discovery of admissible evidence, that is relevant to HINDS S defense against this action. (b) HINDS has complied with the Grabbag Rule of set forth in (a) with the other discovery (consisting of production demands on SIMONS and production demands on HAAS) HINDS has served a total of items on each Plaintiff ( form interrogatories + special interrogatories + production demands = ). (c) PLAINTIFFS failed to respond to the INTERROGATORIES or the other discovery, failed to request additional time to respond; failed to make any effort to meet and confer either themselves or through counsel, and failed to move for a protective order. (d) Although not required by law, after the days for PLAINTIFFS to respond had lapsed, as a courtesy to them, on January 1, 00, HINDS S counsel served a meet and confer letter (hereinafter the M/ C LETTER ), but PLAINTIFFS failed to respond thereto either themselves or through counsel. The M/C LETTER is set forth in Exhibit G attached hereto. (e) By failing to respond, PLAINTIFFS have forced HINDS to bring this motion. This comprises an abuse of discovery by PLAINTIFFS for which a monetary sanction is warranted under CCP 00.0(c). This Motion is made pursuant to 00.0(b) and is based upon this Notice of Motion and Motion, the accompanying Memorandum of Points and Authorities, the accompanying Declaration of Attorney [redacted] (hereinafter the ATTORNEY DECLARATION ), the INTERROGATORIES (Exhibits A, B, C and D), the proofs of service thereof (Exhibits E and F), the M/C LETTER (Exhibit G), the [Proposed] Order lodged herewith, the entire file in this matter, and any other and further oral and/or

4 documentary evidence that this court may chose to consider at the time of the hearing on this Motion. Respectfully Submitted, Date: Law Office of [redacted] Attorneys for Defendant Mary Hinds

5 1 1 Table of Contents 1. Introduction.... The INTERROGATORIES Were Lawfully Propounded.... PLAINTIFFS have Failed to Serve a Timely Response to the INTERROGATORIES.... PLAINTIFFS have Waived Their Rights to Object or to Seek a Protective Order.... The Court Has Authority Grant the Motion and Compel PLAINTIFFS to Respond to the INTERROGATORIES.... If the Motion is Granted, the Court Must Order PLAINTIFFS to Pay HINDS Her Expenses and Attorney Fees Incurred in Making the Motion, Even If PLAINTIFFS Serve Responses.... Conclusion

6 1 1 Cases Table of Authorities Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants Cal.App.th 0... Code of Civil Procedure Rules California Rules of Court rule.0... Treatises California Practice Guide Civil Procedure before Trial (00) The Rutter Group :

7 Memorandum of Points and Authorities Definitions set forth in the foregoing Notice of Motion and Motion are incorporated herein. Unlabeled section numbers herein refer to the Code of Civil Procedure. 1. Introduction This action by PLAINTIFFS is utterly without merit. As supported by ATTORNEY DECLARATION, It is the fourth action PLAINTIFFS have taken against HINDS on the same subject matter they have lost three times and have now come back a fourth time with the very same meritless allegations. As supported by ATTORNEY DECLARATION, PLAINTIFFS first attempt was an administrative action they filed with Los Angeles Housing Department (hereinafter LAHD ), case number [redacted]. They lost. LAHD determined that HINDS had lawfully evicted them. Exhibit H attached hereto sets forth a true and correct copy of an , sent internally within LAHD, indicating that the said case was closed in favor of HINDS. As supported by ATTORNEY DECLARATION, PLAINTIFFS second attempt was another administrative action they filed with LAHD, case number [redacted]. They lost again. LAHD again determined that HINDS had lawfully evicted them. Exhibit I attached hereto sets forth a true and correct copy of an , sent internally within LAHD, indicating that the said case was closed in favor of HINDS. As supported by ATTORNEY DECLARATION, PLAINTIFFS third attempt was a lawsuit filed in the Los Angeles Superior Court, case number [redacted]. They lost yet again. The court dismissed the action. Exhibit J attached hereto sets forth a true and correct copy of the minute order issued on April, 00 granting HINDS s motion to quash service of the summons and dismiss the action. Exhibit K attached hereto sets forth a true and correct copy of the minute order issued on May, 00 denying PLAINTIFFS motion for reconsideration thereof.

8 Becoming increasingly vexatious, the PLAINTIFFS then filed this meritless action based on the very same set of facts. HINDS is entitled to due process, which includes the right to propound discovery, including the INTERROGATORIES, to obtain evidence from PLAINTIFFS in her defense. However, as supported by ATTORNEY DECLARATION 1 and, when served with the INTERROGATORIES and other discovery by HINDS, HAAS failed to respond after actually receiving it, and SIMONS refused to receive it, much less respond (the discovery sent via Certified Mail to SIMONS was returned unclaimed by the Postal Service). Nor did they respond to the M/C LETTER. This conduct is totally unbecoming of any serious plaintiff particularly in what is now their fourth round of attack on HINDS and it proves that the PLAINTIFFS know very well their case has no merit. By now it is transparent that the PLAINTIFFS sole purpose is harassment, including forcing HINDS to bring this motion to compel, thereby incurring attorney fees. And, while they have not succeeded in obtaining any relief from HINDS, they have indeed succeeded at harassing her. As supported by ATTORNEY DECLARATION, the PLAINTIFFS vexatious course of conduct has caused substantial emotional distress to HINDS, and quite reasonably so. As supported by ATTORNEY DECLARATION, the INTERROGATORIES are targeted to obtain admissible evidence, and/or to lead to the discovery of admissible evidence, that is relevant to HINDS S defense against this action.. The INTERROGATORIES Were Lawfully Propounded. After being served with process, a defendant in a civil action may propound discovery at any time without leave of court see as to interrogatories. In a limited civil action, discovery must comply with the Grabbag Rule of set forth in (a), which caps the total number of interrogatories, plus production demands, plus requests for admissions, at items per answering party. As supported by Exhibits A through D and ATTORNEY DECLARATION, SIMONS and HAAS were each served

9 with form interrogatories, special interrogatories, production demands, and no requests for admissions totaling items for SIMONS and items for HAAS.. PLAINTIFFS have Failed to Serve a Timely Response to the INTERROGATORIES. As supported by ATTORNEY DECLARATION, the INTERROGATORIES were served on PLAINTIFFS by mail on December, 00. The time for PLAINTIFFS to respond was therefore within days 0 days, plus days due to the mailing within California. Within 0 days after service of interrogatories, the party to whom the interrogatories are propounded shall serve the original of the response to them on the propounding party 00.0(a). In case of service by mail,... any... duty to... make any response within any period... after the service of the document, which time period... is prescribed by statute..., shall be extended five calendar days, upon service by mail,... 1(a). Section 1 applies to any method of discovery The th day after December, 00 was January 1, 00 which was the last day for PLAINTIFFS to timely respond. As supported by ATTORNEY DECLARATION 1, the M/C LETTER was served on PLAINTIFFS by mail on January 1, 00. This was done as a courtesy to them no meet and confer letter is required for a motion to compel responses to interrogatories when there has been no response. [M]eet-and-confer requirement of former Cal. Rules of Court, rule.1 (now embodied in 00.00, subd. (b)) did not apply when propounding party sought order compelling responses to interrogatories and sanctions for responding party's failure to respond within the statutorily permitted time Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants Cal.App.th As supported by ATTORNEY DECLARATION, PLAINTIFFS have neither served any response to the INTERROGATORIES, nor contacted HINDS to meet and

10 confer, nor had any counsel representing them contact HINDS, nor filed any motion for a protective order. Therefore, PLAINTIFFS have failed to timely respond to the INTERROGATORIES.. PLAINTIFFS have Waived Their Rights to Object or to Seek a Protective Order. If a party to whom interrogatories are directed fails to serve a timely response, the following rules apply: (a) The party to whom the interrogatories are directed waives... any objection to the interrogatories, , emphasis added. The party also waives the right to seek a protective order. When interrogatories have been propounded, the responding party... may promptly move for a protective order (a), emphasis added. If a protective order is to be obtained, relief must be sought: [ ] Promptly...; and [ ] Before expiration of the 0 day period within which to respond to the interrogatories... California Practice Guide Civil Procedure before Trial (00) The Rutter Group :1, italics in original. Thus, by failing to serve a timely response, PLAINTIFFS have waived their rights to object or to seek a protective order.. The Court Has Authority Grant the Motion and Compel PLAINTIFFS to Respond to the INTERROGATORIES provides, If a party to whom interrogatories are directed fails to serve a timely response... (b) The party propounding the interrogatories may move for an order compelling response to the interrogatories. Since the INTERROGATORIES have been lawfully propounded and PLAINTIFFS have not responded, the Court has the authority to grant the Motion and compel them to respond. / / / / / / / / / / / /

11 If the Motion is Granted, the Court Must Order PLAINTIFFS to Pay HINDS Her Expenses and Attorney Fees Incurred in Making the Motion, Even If PLAINTIFFS Serve Responses. 00.0(c) provides, The court shall impose a monetary sanction... against any party,... who unsuccessfully... opposes a motion to compel a response to interrogatories... (Emphasis added.) 0.0 provides, Misuses of the discovery process include... (d) Failing to respond... to an authorized method of discovery. 0.00(a) provides for a monetary sanction ordering that one engaging in the misuse of the discovery process... pay the reasonable expenses... incurred by anyone as a result of that conduct. (Emphasis added.) The court may award sanctions... even though no opposition to the motion was filed,... or the requested discovery was provided... after the motion was filed. California Rules of Court rule.0(a). As supported by ATTORNEY DECLARATION, HINDS S reasonable costs in making the motion are $0, and her reasonable attorney fees for counsel to represent him at the hearing hereon are $1,0. Therefore, if the motion is granted, the Court must order PLAINTIFFS to pay HINDS her costs of $0 and attorney fees of $1,0 incurred in making the motion, even if they serve responses.. Conclusion. For the foregoing reasons, the Court should GRANT the motion. Respectfully submitted, 1 Dated: Law Office of [redacted] Attorneys for Defendant Mary Hinds

12 I, [redacted], declare: Declaration by Attorney [redacted] The following is based on my own personal knowledge and if called to testify, I could, and would, testify competently thereto..i am incorporating herein the definitions set forth in the foregoing Notice of Motion and Motion..I am the attorney of record for Defendant Mary Hinds (HINDS) in the above entitled action..this action comprises the PLAINTIFFS fourth attempt to recover from HINDS based on her lawfully evicting them..the PLAINTIFFS first attempt was an administrative action they filed with LAHD, case number [redacted]. LAHD determined that HINDS had lawfully evicted them. Exhibit H attached hereto sets forth a true and correct copy of an , sent internally within LAHD, indicating that the said case was closed in favor of HINDS..The PLAINTIFFS second attempt was another administrative action they filed with LAHD, case number [redacted]. LAHD again determined that HINDS had lawfully evicted them. Exhibit I attached hereto sets forth a true and correct copy of an , sent internally within LAHD, indicating that the said case was closed in favor of HINDS..The PLAINTIFFS third attempt was a lawsuit filed in the Los Angeles Superior Court, case number [redacted]. The court dismissed the action. Exhibit J attached hereto sets forth a true and correct copy of the minute order issued on April, 00 granting HINDS s motion to quash service of the summons and dismiss the action. Exhibit K attached hereto sets forth a true and correct copy of the minute order issued on May, 00 denying PLAINTIFFS motion for reconsideration thereof. 1

13 The PLAINTIFFS vexatious course of conduct has caused substantial emotional distress to HINDS..The INTERROGATORIES are targeted to obtain admissible evidence, and/or to lead to the discovery of admissible evidence, that is relevant to HINDS S defense against this action..in addition to the INTERROGATORIES, I also served production demands on SIMONS and production demands on HAAS. No requests for admissions were served..on December, 00, I separately served the INTERROGATORIES on SIMONS and on HAAS via certified mail. True and correct copies of the INTERROGATORIES as served are set forth in Exhibits A, B, C and D attached hereto. The production demands were enclosed in the same envelope. True and correct copies of the proofs of service thereof are attached hereto as Exhibits E and F. 1.I received a delivery receipt signature card back from the Postal Service that was signed by HAAS on December, 00, a true and correct copy of which is attached hereto as Exhibit L, indicating receipt of the discovery. SIMONS either refused the envelope mailed to her or failed to claim it from the Postal Service, and it was returned to me a true and correct copy of the still-sealed envelope is attached hereto as Exhibit M. 1.On January 1, 00, I separately served the M/C LETTER on SIMONS and on HAAS. A true and correct copy of the M/C LETTER as served is set forth in Exhibit G attached hereto..as of the date of signing hereof, I have received no response to either the INTERROGATORIES or to the M/C LETTER or to any of the other discovery. Nor have I received any notice of motion for a protective order. On March, 00, my office checked the Case Summary page on the Court web site ( for case number [redacted], and, under 1

14 1 1 Documents Filed there was no motion for a protective order. Nor have I received any other communication from PLAINTIFFS or from any counsel representing PLAINTIFFS..As a result of PLAINTIFFS S failure to respond to the INTERROGATORIES and other discovery, HINDS has necessarily incurred the following reasonable costs. This Motion is one of two concurrently filed discovery motions. The accounting below is shared among both discovery motions, and is identically stated in my declaration accompanying the other motion. My regular rate is $ per hour. Motion filing fees ( motions) $0 Attorney fees for motion preparation and appearance ( hours) $1,0 Total costs and attorney fees $1,0 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 0 1 Dated: [redacted]

15 Exhibit A SIMONS FORM ROGGS

16 Exhibit B SIMONS SPECIAL ROGGS

17 Exhibit C HAAS FORM ROGGS

18 Exhibit D HAAS SPECIAL ROGGS

19 Exhibit E Proof of service of the Discovery on SIMONS

20 Exhibit F Proof of service of the Discovery on HAAS 0

21 Exhibit G Meet and Confer Letter 1

22 Exhibit H Indicating Closure of LAHD Case Number [redacted]

23 Exhibit I Indicating Closure of LAHD Case Number [redacted]

24 Exhibit J Minute Order Issued on April, 00

25 Exhibit K Minute Order Issued on May, 00

26 Exhibit L Delivery Receipt Signature Card Back from the Postal Service

27 Exhibit M Copy of the Still-Sealed Envelope Mailed to SIMONS

28

29 [attorney name redacted], Esq. (CSBN ///////////) ////////////// ////////////// ////////////// ////////////// ////////////// Attorneys for Defendant Mary Hinds 1 1 Ted Simons and Phillip Haas, Plaintiffs Mary Hinds, Defendant v. SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES Case Number: Complaint Filed: [redacted] [redacted] [PROPOSED] ORDER COMPELLING ANSWERS TO INTERROGATORIES AND IMPOSING MONETARY SANCTIONS Hearing Date Hearing Time Hearing Department 0 1 The motion by Defendant Mary Hinds (hereinafter HINDS ), for an order compelling Plaintiffs Ted Simons (hereinafter SIMONS ) and Phillip Haas (hereinafter HAAS, and collectively with SIMONS, PLAINTIFFS ) to answer the following interrogatories: Form Interrogatories to Ted Simons, Set One (hereinafter the SIMONS FORM ROGGS ); Special Interrogatories to Ted Simons, Set One (hereinafter the SIMONS SPECIAL ROGGS ); Form Interrogatories to Phillip Haas, Set One (hereinafter the HAAS FORM ROGGS ); and 1 ORDER COMPELLING ANSWERS TO INTERROGATORIES AND IMPOSING MONETARY SANCTIONS

30 Special Interrogatories to Jamie William, Set One (hereinafter the HAAS SPECIAL ROGGS ), came on regularly for noticed hearing on in Department of this Court. HINDS appeared by counsel [redacted]. SIMONS appeared in pro per appeared by counsel did not appear. HAAS appeared in pro per appeared by counsel did not appear. On proof made to the satisfaction of the Court that the motion ought to be granted, IT IS ORDERED that the motion is GRANTED. SIMONS is ordered to prepare and serve on HINDS on or before complete, verified answers without objections to the SIMONS FORM ROGGS and the SIMONS SPECIAL ROGGS. HAAS is ordered to prepare and serve on HINDS on or before complete, verified answers without objections to the HAAS FORM ROGGS and the HAAS SPECIAL ROGGS. IT IS FURTHER ORDERED that PLAINTIFFS shall pay monetary sanctions to HINDS in the amount of $ on or before. SIMONS and HAAS are each ordered to pay half of that amount. IT IS SO ORDERED. Dated: Judge of the Superior Court ORDER COMPELLING ANSWERS TO INTERROGATORIES AND IMPOSING MONETARY SANCTIONS