Cathy R. Holmes, as Administrator of The Estate of Marjorie J. Wahler vs. Valaree A. Wahler, as Trustee of The Wahler Family Trust Dated April 9, 1976

Motion to Compel Answers to Interrogatories

Cal. Super. - 4th Dist.July 13, 2015

© 0 0 N N o o u l B A Ww W N O R e l A Ww W N N H L O = [e p] D A I L Y L A W G R O U P 6 1 0 N e w p o r t C e n t e r Dr iv e, Su it e 4 2 0 N e w p o r t B e a c h , Ca li fo rn ia 9 2 6 6 0 N o N o N o N o N o N o N o N o — — — — ~ S S O n ~ w N o _ o O O O o o ~ o n N o o o Dairy Law Group AndJustice for All DAILY LAW GROUP James D. Daily, Esq. SBN 146699 610 Newport CenterDrive Newport Beach, California 92660 Telephone: (949) 662-6000 Facsimile: (949) 258-5555 E-mail: jdaily@ dailylawgroup.com ALYSSA C.WESTOVER, A Professional L aw Corporation A jy5sa C. Westover, Esq. SBN 154754 3450 E. Spring Street, Suite 107 Long Beach, California 90806 Telephone: (562) 472-0393 Facsimile: (562) 988-1414 E-mail: acwlaw@ hotmail.com Attorneys for Petitioners, CATHY R.HOLMES, as Administrator of the Estate of MARJORIE J. WAHLER SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE — CIVIL COMPLEX CENTER CATHY R.HOLMES,as Administrator of the Estate of MARJORIE J. WAHLER Case No. 30-2015-00798136-CU-EN-CXC Related to Case Nos. 30-2015-00794832-CU-EN-CXC 30-2015-00769258-CU-BT-CXC 30-2015-00798191-CU-BT-CXC 30-2015-00806637-CU-OR-CXC 30-2015-00809532-PR-TR-CXC 30-2015-00766893-PR-NC-CXC 30-2015-00766869-PR-NC-CXC 30-2015-00782701-PR-PW-CXC Plaintiff, V. VALAREE WAHLER, as Trustee of the Wahler Family Trust dated April 9, 1976; VALAREE WAHLER, as Trustee of the Robert and V alaree Wahler Trust dated November 6, 2007; VALAREE WAHLER, in her individual capacity; and DOES 1 through 50, Inclusive, Assigned for all purposes to the Honorable Glenda Sanders in Department CX 101 Defendants. Discovery Referee Honorable David C. Velasquez (Ret.) NOTICE OF MOTION AND MOTION TO COMPELDEFENDANTS’ FURTHER RESPONSESTO PLAINTIFF'S FIRST SET OF SPECIAL INTERROGATORIES AND FOR MONETARY SANCTIONSIN THE AMOUNT OF $3,643.75 — _ — o r — — e e r r ~ ~ ~ ~ ~ — ~ — PLAINTIFF’S MOTION TO COMPEL DEFENDANTS’ FURTHER RESPONSES TOSPECIAL INTERROGATORIES © 0 0 N N o o u l B A Ww W N O R e l A Ww W N N H L O = [e p] D A I L Y L A W G R O U P 6 1 0 N e w p o r t C e n t e r Dr iv e, Su it e 4 2 0 N e w p o r t B e a c h , Ca li fo rn ia 9 2 6 6 0 N o N o N o N o N o N o N o N o — — — — ~ S S O n ~ w N o _ o O O O o o ~ o n N o o o Dairy Law Group AndJustice for All AGAINST DEFENDANT AND HER ATTORNEY OF RECORD JOHN B. STEPHENS; MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT THEREOF [SEPARATE STATEMENT; DECLARATION OF MICHELLE P. NGUYEN; [PROPOSED] ORDER FILED CONCURRENTLY HEREWITH] Date: 04/12/2017 Time: 8:30 a.m. Location: Judicate West via Teleconference (Call-in information to be disseminated via email by Judicate W est Case M anager Puja LaQuay) Complaint Filed: 07/13/2015 Trial Date: 05/08/2017 — _ — o r — — ~ ~ ~ — PLAINTIFF’S MOTION TO COMPEL DEFENDANTS’ FURTHER RESPONSES TOSPECIAL INTERROGATORIES © 0 0 N N o o u l B A Ww W N O R e l A Ww W N N H L O = [e p] D A I L Y L A W G R O U P 6 1 0 N e w p o r t C e n t e r Dr iv e, Su it e 4 2 0 N e w p o r t B e a c h , Ca li fo rn ia 9 2 6 6 0 N N N N N N N N N N F B F B — o o ~ S O O n E S N w N o = o O © o o ~ o n Dairy Law Group AndJustice for All TO JUDICATE WEST, THE COURT, ALL PARTIES, AND ALL PARTIES’ ATTORNEYS OF RECORD: PLEASE TAKE NOTICE thaton April 12, 2017 at 8:30 a.m., or as soon thereafter as the matter may be heard telephonically before the Honorable David C. Velasquez (Ret.), the Court-appointed discovery referee, Plaintiff CATHY R. HOLMES (“Plaintiff”), as the Administrator of the Estate of Marjorie J. Wahler, will move for an order to Compel Defendant VALAREE A. WAHLER, as Trustee of the Wahler Family Trust dated A pril 9, 1976, VALAREE A. WAHLER, as Trustee of The Robert and V alaree Wahler Trust dated November 6, 2007, and VALAREE A. WAHLER in her individual capacity (collectively “Defendant”) to do the following: 1. Provide further responses to all interrogatories contained in Set One of Plaintiff’s Special Interrogatories; and 2. Pay monetary sanctions imposed against Defendant and her attorney of record, J ohn B. Stephens of Stephens Friedland, LLP in the amount of $3,643.75 and other fees pursuant to the Code of Civil Procedure §§ 2023.030(a), 2030.300(d). This Motion is based on the Code of Civil Procedure, sections 2023.010 et seq., 2023.030 et seq., and 2030.300(d) on the grounds the Defendant has raised general and meritless, boilerplate objections in lieu of providing relevant and substantive information necessary for resolution. Plaintiff has good cause to demand further responses to her First Set of Special Interrogatories because each interrogatory is relevant to the subject matter of the action and does not infringe upon Defendant’s financial right of privacy. Defendant has no substantial justification to raise her objections. Prior to filing this Motion, Plaintiff’s counsel has made multiple attempts to meet and confer with Defendant’s counsel; the parties have sent each other severalletters and even engaged in an enhanced meet and confer teleconference with the Discovery Referee. However, the parties were unable to resolve the dispute because Defendant’s counsel refuses to act without a court order mandating her to do so. Il i PLAINTIFF’S MOTION TO COMPEL DEFENDANTS’ FURTHER RESPONSES TOSPECIAL INTERROGATORIES 1 2 3 4 5 6 7 8 9 10 S_ 11 28 12 5 13 GEE 14 801s =O 8 16 a = 17 =: 18 © 19 20 21 22 23 24 25 26 27 28 Dairy Law Group AndJustice for All This Motion will further be based upon this Notice of Motion, the M emorandum of Points and Authorities, the attached Declaration of Michelle P. Nguyen, the Separate Statement of Special Interrogatories and Responses in Dispute, the Request for Judicial Notice, the complete files and records of this action, and upon such further documentation, evidence, and/or oral arguments that may be provided at the time of hearing. Dated: March 16, 2017 DAILY LAW GROUP Michelle P. Nguyen, Attorneys for Plaintiff CATHY R.HOLMES,as the Administrator of the Estate of Marjorie J. Wahler i PLAINTIFF’S MOTION TO COMPEL DEFENDANTS’ FURTHER RESPONSES TOSPECIAL INTERROGATORIES TABLE OF CONTENTS 1 210, INTRODUCTION coirsreesree snes snares 1 31. FACTUAL BACKGROUND i 1 EI. LEGAL ARGUMENTwovesess sess sess sesssess 4 > A. Plaintiff’s Reasonable and Good Faith Efforts to Informally 6 Resolve This Dispute Have Been Futile...4 7 B. Good Cause Exists for Compelling Further Responses to These I NEEITOGALOMIESvit § 8 (1) Preliminary Statements and General Objections Are 9 Facially Improper and M ust Be Automatically Stricken aNd OVerruled § 10 (2) Specific Objections Must Be Overruled As Defendant Has s 11 N'o Substantial Justification to Raise and Maintain Them ........... 7 2 < 12 (2) RELEVANCE. .....vieeeeee6 = a © 13 (b) Financial Privacy..........ccoovviiiiiiiiiiiiiii ieee,7 = 2 S 14 (c) Annoyance and Harassment................cccooeviiiiiinnnnnnnn. 8 oO — =3s0 15 C. Monetary Sanctions Covering Reasonable Expenses and Fees Sc< Should Be Awarded A gainst Defendant for Discovery Misuse............. 11 SEE 6 1V, CONCLUSIONwornsss12 5 =E 17 318 © 19 20 21 22 23 24 25 26 27 28 11 i PLAINTIFF’S MOTION TO COMPEL DEFENDANTS’ FURTHER RESPONSES TO 2 SPECIAL INTERROGATORIES Dairy Law Group AndJustice for All © 0 0 N N o o u l B A Ww W N O R 10 S_ 11 28 12 5 13 GSE 14 289 15 =O 8 16 a = 17 =: 18 © 19 20 21 22 23 24 25 26 27 28 Dairy Law Group AndJustice for All TABLE OF AUTHORITIES Page(s) CALIFORNIA CASES Bridgestone/F irestone, Inc. v. Sup. Ct. (Rios) (1992) 7 CallAPPA 1384...seerssree sree sree eran 7 Cobb v. Sup. St. (1979) 99 Cal.APP.30543... eer8 Colonial Life & Acc. Ins. Co. v. Sup. Ct. (Perry) (1982) 31 CalLAPP.30 785 ..oeecicececce eereee ra eee 7 Embree v. Embree (2004) 125 CalLAPP.AIN ABT overseerssree seeneben1 Korea Data Systems Co. Ltd. v. Sup. Ct. (Amazing Technologies Corp.) (1997) 51 CallAPP.Ath 1513oiireeseeeesree sree sree eran 6 West Pico Furniture Co. v. Sup. Ct. (1961) 56 Cal.2d 407 ocessbeebs 10 CALIFORNIA STATUTES Cal. Code Civ. Proc. § 2017.010 ....occeiiiiiiiectiecreereessbeebs steers sbeebs sna7 Cal. Code Civ. Proc., § 2023.010 ....ccuiiiiiiieiie cecetiesras sree sree 6, 11 Cal. Code Civ. Proc. § 2030.000 .....ccuiiiiiiiiiiiececeras sree sree9,10 Cal. Code Civ. Proc. § 2030.210 ...ocoiiciiieiiectiecreereessree svn t esses sbeebs eran 6 Cal. Code Civ. Proc. § 2030.240 .....ccveeiieiieciecreersreesneer sree erasers 6 Cal. Code Civ. Proc. § 2030.300 .....cceeiiiiiiiiiiecrie streets sbeebssbeebs eras sree sais 4,6 (OF TI OF AV OoTo [SR JC74TR9 Cal. Family Code § 1100viiisess sree sree sree esrsreesree eben eres 8 1v PLAINTIFF’S MOTION TO COMPEL DEFENDANTS’ FURTHER RESPONSES TOSPECIAL INTERROGATORIES © 0 0 N N o o u l B A Ww W N O R 10 S_ 11 28 12 5 13 os 14 S821 528 16 55% 17 =: 18 © 19 20 21 22 23 24 25 26 27 N o o o Dairy Law Group AndJustice for All MEMORANDUM OF POINTSAND AUTHORITIES l. INTRODUCTION Robert R. Wahler ("Robert")!, while a married man, is believed to have made transfers of Marjorie J. Wahler’s community property to or for the benefit of Defendant Valaree A. Wahler (“Defendant”). Plaintiff represents the estate of Marjorie J. Wahler (“Marjorie”). By propounding this set of Requests for Production, Plaintiff seeks documents regarding gifts to Defendant, which may have belonged to Marjorie’s community property. Defendant refuses to provide responsive documents to Plaintiff’s requests because she claims that they are irrelevant, that they somehow infringe upon her financial privacy, and that they are subjectively harassing and annoying to her. Defendant's objections hold no weight because she has made several testimonies that gave rise to Plaintiff’s suspicion, providing good cause to inquire about the character of those gifts. Based on Defendant's refusal to cooperate, Plaintiff files this Motion herein, respectfully requesting the Discovery Referee to overrule Defendant’s objections, to order her to answer the Special Interrogatories without objection, and to grant monetary sanctions against D efendant and her counsel of record for the costs and fees reasonably incurred in pursuing this M otion. I, FACTUAL BACKGROUND Marjorie J. Wahler and Robert R. Wahler were husband and wife. Robert met Defendant when he wasstill married to Marjorie. (Nguyen Decl. Ex. 10%.) Defendant became Robert’s lived-in girlfriend for over ten years before he married her. (Nguyen Decl. Ex. 12; RJN 3-5.) Atleast one of their marriages took place while Robert was still married to Marjorie. (RJN 3-5.) Immediately the day after the Orange County Superior Court denied Robert’s Motion for Dissolution and Bifurcation of Marriage, Robert and Defendant 1 Because some of the parties in this case share the same last names, Plaintiff will refer to a number of them by their first names, not out of disrespect, but to avoid confusion. (Embree v. Embree (2004) 125 Cal.App.4th 487, 490.) 2 Deposition of Valaree A. Wahler, dated October 13, 2015 in the case styled Wahler v. Forum Associates, et al., Orange County Superior Court Case No. 30-2015-00806637-CU - OR-CXC at pages 55-56 — stating that Defendant met Robert in November of 1978. Robert told Defendant the night that they met that he was married with four children. 1 PLAINTIFF’S MOTION TO COMPEL DEFENDANTS’ FURTHER RESPONSES TOSPECIAL INTERROGATORIES © 0 0 N N o o u l B A Ww W N O R e l A Ww W N N H L O = [e p] D A I L Y L A W G R O U P 6 1 0 N e w p o r t C e n t e r Dr iv e, Su it e 4 2 0 N e w p o r t B e a c h , Ca li fo rn ia 9 2 6 6 0 N N N N N N N N N N F B F B — o o ~ S O O n E S N w N o = o O © o o ~ o n Dairy Law Group And Justice for All executed a pre-marital agreement. (RJN 2; Nguyen Decl. Ex. 10°.) In the pre-marital agreement, Defendantlisted numerous jewelries and personal items valued at millions of dollarsas her “separate property.” (/d.) In various deposition testimonies, Defendant has admitted the items at issue all came from Robert. e Defendant testified that all the jewelries listed as her separate property under the premarital agreement were gifts from Robert. (Nguyen Decl. Ex. 10%) 01:57 15 QQ So all ofthe things on here, (as read): 1&6 "Rubies, diamonds. earrings. 17 perfect diamonds. diamond bracelets, 1s 22 carets, 16 perfect 1- to 2-caret 19 diamonds.” 01:57 20 and all the values there. those were all things that 21 were given to you by Mr. Wahler: 1s that right? A At the tame. Q Well. you —— vou didn't have anybody else 2 giving you diamonds, did you? 01:57 25 A No, but I gave a lot of diamonds away mn 2 Q Oh. And that was from the things that vou 3 were given by Mr. Wahler. ght? 4 A Yes. I. I k a ka 3 The Pre-M arital Agreementis attached to the deposition transcript as Exhibit 6. * Deposition of Valaree A. Wahler, dated October 13, 2015 in the case styled Wahler v. Forum Associates, et al., Orange County Superior Court Case No. 30-2015-00806637-CU - OR-CXC at page 94, lines 15-25 and page 95, lines 2-4. 2 PLAINTIFF’S MOTION TO COMPEL DEFENDANTS’ FURTHER RESPONSES TOSPECIAL INTERROGATORIES e Defendant admitted that she did not have anything at the time she signed the 1 pre-marital agreement; she “had to list something” as her separate property. 2 (Nguyen Decl. Ex. 10°.) 3 01:55 5 BY MR. DAILY: 4 6 Q Well. let me just turn your attention to 5 7 paragraph numbered one. letter A_ (as read): 8 "Valaree represents and warrants 6 9 that Exhibit A. attached hereto. 7 01:56 10 constitutes a full and complete 11 schedule setting forth all property 8 12 owned by Valaree. and all of her 13 material liabilities as of the date 9 14 of Valaree's marriage to Robert." 10 01:56 15 Is that -- was that true when you signed 16 1t? 11 5 , , LoYo 17 A Well. that's true. but I didn't have 28 12 18 anything back in those days. in 1990. aa bl 19 Q Well. let's look back at what you did have. 3 gc 13 01:56 20 because you lifted 1t on Exhibit A. > STS 14 21 A Well I listed —- I had to list something. oO — =.8 <2 © 15 — o 5 ~© 3 16 e Defendant admitted that she brought nothing into the marriage (only a za2 M ercedes Benz), thereby confirming that everything listed in the pre-marital oz Ss 17 agreement as her “separate property” came from Robert. (Nguyen Decl. Ex. [] = = 13°) oZ 18 © 19 03:07:07 2 (What assets did you have when you met Bob? 2 .0 02:07:08 3 A Thad -Ihada Mercedes, 21 5 03:07:11 #4 Q And that was it? 23 13:07:12 5 A Thatwastt 24 25 > 1d. at page 94, lines 15-25; page 95, lines 2-4. 26 " : ® Deposition of Valaree A. Wahler, Vol. I dated October 27, 2016 in the case styled 27 Wahler v. Forum Associates, et al., San Bernardino Superior Court Case Number CIV DS1512427, page 260, lines 2-5. 28 3 PLAINTIFF'S MOTION TO COMPEL DEFENDANTS’ FURTHER RESPONSES TO SPECIAL INTERROGATORIES Dairy Law Group And Justice for All © 0 0 N N o o u l B A Ww W N O R e l A Ww W N N H L O = [e p] D A I L Y L A W G R O U P 6 1 0 N e w p o r t C e n t e r Dr iv e, Su it e 4 2 0 N e w p o r t B e a c h , Ca li fo rn ia 9 2 6 6 0 N N N N N N N N N N F B F B — o o ~ S O O n E S N w N o = o O © o o ~ o n Dairy Law Group AndJustice for All Based on these testimonies, Plaintiff believes that R obert may have gifted community property to his lived-in girlfriend without knowledge of or consent from his then-wife, Marjorie. Before she proceeds with a claim for her community interest, Plaintiff propounded a set of special interrogatories to inquire about the characteristic of the gifts — whether they are community property or separate property. 1. LEGAL ARGUMENT On receipt of a response to interrogatories, the propounding party may move for an order compelling further response if the propounding party deems that an answerto a particular interrogatory is evasive or incomplete or an objection to an interrogatory is without merit or too general. (Cal. Code Civ. Proc. § 2030.300(a).) Prior to filing the motion, the party must make a reasonable and good faith attempt at an informal resolution of each issue presented by the motion. (Cal. Code Civ. Proc. §§ 2030.300(b); 2016.040.) Plaintiff files this motion to compel because Defendant maintains her general objections, which are statutorily improper. Plaintiff further invokes her right to move for an order compelling further responses because D efendant raised only objections and has yet to provide any substantive information. Despite Plaintiff dispelling the bases for each objection in multiple meet and confer correspondences, Defendant hides behind her objections based on relevance, financial privacy, and annoyance and harassment. A. Plaintiff’s Reasonable and Good Faith Efforts to Informally Resolve This Dispute Have Been Futile On October 18, 2016, Plaintiff propounded the First Set of Special Interrogatories on Defendant. (Nguyen Decl., 14, Ex. 1.) On November 18, 2016, Defendant responded with general objections and copy-and-paste boilerplate objections to each and every special interrogatory. (Nguyen Decl. 995-6, Ex. 2.) Defendant did not provide a single substantive response. (1d.) On December 9, 2016, Plaintiff's counsel made a reasonable and good faith attempt to informally resolve each issue presented by this Motion by sending a lengthy meet and confer letter that analyzed each and every objection and provided good cause for 4 PLAINTIFF’S MOTION TO COMPEL DEFENDANTS’ FURTHER RESPONSES TOSPECIAL INTERROGATORIES 1 2 3 4 5 6 7 8 9 10 S_ 11 28 12 5 13 GSE 14 801s =O 8 16 28c 17 =: 18 © 19 20 21 22 23 24 25 N N N N c o d N O O Dairy Law Group AndJustice for All propounding each interrogatory. (Nguyen Decl. 99a, Ex. 3.) In hopes that Defendant would cooperate after clarification on Plaintiff’s position, the letter addressed Defendant’s general objections as well as the three specific objections based on relevance, financial privacy, and harassment/annoyance. (ld.) On December 23, 2016, Defendant’s counsel responded to the meet and confer letter, reasserting her objections and refusing to provide supplemental substantive responses. (Nguyen Decl. 9b, Ex. 4.) On December 27, 2016, Plaintiff’s counsel requested an extension to file the M otion to Compel, which was granted. (Nguyen Decl. 9c, Ex. 5.) On January 10, 2017, Plaintiff sent another meet and confer letter further explaining her position and urging Defendant to cooperate with Plaintiffs request. (Nguyen Decl. 99¢, Ex. 7.) On January 20, 2017, Defendant’s counsel maintained their position and suggested that the parties engage in the enhanced meet and confer teleconference with the Discovery Referee. (Nguyen Decl. 99f, Ex.8.) On February 15, 2017, counsel for both parties engaged in an enhanced meet and confer teleconference with the Discovery Referee to discuss the merits of Defendant’s objections and Plaintiffs purpose for propounded the discovery. J ohn B. Stephens, counsel for Defendant, refused to discuss the substantive arguments of the discovery; he informed Plaintiff’s counsel and the Discovery Referee that D efendant will not respond to any discovery unless there is an order mandating her to do so. (Nguyen Decl. 99g.) Mr. Stephens refused to discuss the matter any further and urged Plaintiff to file this Motion to Compel. (Id.) Immediately after the teleconference, Plaintiff’s counsel confirmed via email that the deadline extension to file the M otion to Compel by M arch 16, 2017, which was granted. (Nguyen Decl. 9h, Ex. 9.) By sending several meet and confer correspondences as well as engaging in the enhanced meet and confer teleconference with the Discovery Referee, Plaintiff has demonstrated her reasonable and good faith attempt to resolve this discovery dispute. Plaintiff’s efforts were for naught because Defendant has not provided a single substantive response to this day. Despite Plaintiff’s in-depth analysis of her good cause to propound this 5 PLAINTIFF’S MOTION TO COMPEL DEFENDANTS’ FURTHER RESPONSES TOSPECIAL INTERROGATORIES 1 2 3 4 5 6 7 8 9 10 S_ 11 28 12 5 13 os 14 S821 528 16 55% 17 =: 18 © 19 20 21 22 23 24 25 26 27 28 Dairy Law Group AndJustice for All discovery, Defendant refuses to cooperate. Plaintiff files this M otion to Compel because her communications with opposing counsel have been futile. B. Good C ause E xists for Compelling Further Responses to These Interrogatories (1) Preliminary Statements and General Objections Are Facially Improper and M ust Be Automatically Stricken and Overruled Defendant prefaced this set of response with a "Preliminary Statement and General Objections," which is in direct violation of the Discovery Act. General objections are facially improper because they directly violate California Code of Civil Procedure, sections 2030.210 and 2030.240. M ore specifically, section 2030.210(a)(3) requires that the responding party respond separately to each interrogatory with an answer, option to produce writing, or an objection to the particular interrogatory. Section 2030.240(b) requires that the responding party set forth clearly in the response the specific ground for objection. In other words, a responding party may not raise general objections to an entire discovery set and incorporate by reference as Defendant did here. Otherwise, the propounding party may proceed with a motion to compel because the objections are "too general." (Cal. Code Civ. Proc., § 2030.300(a)(3); see Korea D ata Systems Co. Ltd. v. Sup. Ct. (Amazing Technologies Corp.) (1997) 51 Cal.A pp.4th 1513, 1516 — objecting party subject to sanctions for "boilerplate" objections.) By incorporating her general objections in every single response, Defendant interposed boilerplate objections without an explanation as to how they are applicable and without specifying the grounds for each objection. Such open-ended objections make it impossible for Plaintiff to provide an intelligent legal analysis regarding the validity of the objections interposed. As asserted, Defendant's general objections are not reasonably particularized, so they impermissibly force Plaintiff to speculate which objections apply to which question. By maintaining these objections, Defendant has abused discovery because she has asserted evasive responses. (Cal. Code Civ. Proc., § 2023.010.) Plaintiff respectfully requests that the Discovery Referee 6 PLAINTIFF’S MOTION TO COMPEL DEFENDANTS’ FURTHER RESPONSES TOSPECIAL INTERROGATORIES 1 2 3 4 5 6 7 8 9 10 S_ 11 28 12 5 13 os 14 S821 528 16 55% 17 =: 18 © 19 20 21 22 23 24 25 26 27 28 Dairy Law Group AndJustice for All overrules Defendant's general objections, strikes her preliminary statements, and compels her to provide substantive responses without objections. (2) Specific Objections Must Be Overruled As Defendant Has No Substantial J ustification to Raise and Maintain Them (a) Relevance It is axiomatic that unless otherwise specified by an order of the Court, any party may obtain discovery regarding any matter not privileged that is relevant to the subject matter of the pending litigation. (Cal. Code Civ. Proc. § 2017.010.) For discovery purposes, “relevancy”is loosely construed so as to assist parties in evaluating the case. (Bridgestone/F irestone, Inc. v. Sup. Ct. (Rios) (1992) 7 Cal.App.4th 1384, 1392.) Any doubt is generally resolved in favor of permitting discovery. (Colonial Life & Acc. Ins. Co. v. Sup. Ct. (Perry) (1982) 31 Cal.App.3d 785, 790.) Here, the interrogatories are all relevant because they relate to the characterization of property — whether they are community or separate property. Both Plaintiff and Defendant have agreed that this action is about the enforcement of a family law judgment, which incorporated the terms of a marital settlement agreement between Marjorie and Robert. (Nguyen Decl. Ex. 4 and 7) The judgment arose from their petition for legal separation in the case styled as Marriage of Marjorie. Wahler, Petitioner and Robert R. Wahler, Respondent (Orange County Superior Court Case No. D 236071) (hereinafter “MSA Judgment”). Thus, the heart of this case is about the division of community property assets. Under the terms of the M SA judgment, Robert warranted to M arjorie that he did not own any property which was not disclosed in the underlying marital settlement agreement. He further warranted that he did not make a gift or transfer of community property without her knowledge or consent. (See next page). I I I I 7 PLAINTIFF’S MOTION TO COMPEL DEFENDANTS’ FURTHER RESPONSES TOSPECIAL INTERROGATORIES 3a. WAORANTIES AND COVERANTS. Each of wi warrants to the othar 1 that the warrantor dose not own any property of any kind, 2 other than the property specifically listed in this Agres— 3 mant and that thea warrantor has not made, without the 4 knowledge ard consant of the other, any gift or transfer of 5 any comminity propacty.. If it lates appears that either warranter now ofhs any other property, and that warrantes 6 : ‘has an’ interest in this property, the warrantor agreas bo 7 trans fer opr pay. toc warrantee, ek warrantee's slaction [al an 8 amount of other property egual to the warrantes "as intersst in it, ib} the full market values of the werrantse's interest 9 on the =ffective date of this Agresmsnt; or fet fall market 10 malue of the warrantes's interest at tho time the warrantes o 11 discovers the warrantor's ownership of the property. This2 ; v3 Agreament iz not intended to impair the availability of any Oo =3 12 gther remedy arising from the undisclosed ownership. Ono > = 13 o9E (RJN, Ex. 1.) STE 14 © 5 = : 1 : n := e 3 Moreover, Family Code, section 1100(b) provides that a "spouse may not make a gift <2. 15 , : i- 35 of community personal property, or dispose of community personal property for less than fair 23 16[) = So and reasonable value, without the written consentof the other spouse.” a oT 17 N 5 S Here, Defendant’s deposition testimony suggests that R obert made gifts to her while 3 18 == he was still married to Marjorie. Plaintiff has a right to inquire about those gifts as they ma “19 have been disposed in violation of Family Code, section 1100(b) and the M SA judgment, 20 CL ) , which is the subject matter of this action. Because each interrogatory is crafted to determine 21 _ , the character of the gifts, they are directly relevant to Plaintiff's claims. Defendants 22 CL objections based on relevance must be overruled. 23 . . . (b) Financial Privacy 24 LL Defendant’s objections based on financial privacy are inapplicable because none of 25 ) Co , , these interrogatories involve Defendant’s finances and therefore do not require privacy 26 ) Ce , , protection. A right to privacy exists as to a party's confidential financial affairs 27 ) ) i. notwithstanding relevancy. (Cal. Prac. Guide Civ. Pro. Before Trial Ch. 8C-5 citing to Cobb 28 8 3 PLAINTIFF’S MOTION TO COMPEL DEFENDANTS’ FURTHER RESPONSES TO SPECIAL INTERROGATORIES Dairy Law Group And Justice for All © 0 0 N N o o u l B A Ww W N O R e l A Ww W N N H L O = [e p] D A I L Y L A W G R O U P 6 1 0 N e w p o r t C e n t e r Dr iv e, Su it e 4 2 0 N e w p o r t B e a c h , Ca li fo rn ia 9 2 6 6 0 N o N o N o N o N o N o N o N o — — — — ~ S S O n ~ w N o _ o O O O o o ~ o n N o o o Dairy Law Group AndJustice for All v. Sup. St. (1979) 99 Cal.App.3d 543, 550.) The main query here is whether D efendant's financial information is even at issue. Plaintiff's interrogatories ask for information about the source of funds and other related information about the characterization of the item. Some of the interrogatories have nothing to do with financial information let alone D efendant's financial information. As an illustrative example and by no meansis intended to be exhaustive, information about who purchased the item, who sold the item to Robert, and when the item was purchased are not financial information. Other interrogatories that ask for information regarding the source of funds used to purchase the item and the bank account holding the source of funds do not apply to Plaintiff's objections because they do not involve her financial information. Those interrogatories apply to Robert, whose privacy rights she did not assert and on behalf of whom she has no standing to assert. In her meet and confer correspondences, Defendantcites to Civil Code section 3295(c), which is wholly inapplicable to this scenario. Civil Code section 3295(c) prohibits the plaintiff from making pretrial discovery of the defendant's financial condition and profits that the defendant gained from wrongful conduct, unless the plaintiff acquires a court order saying otherwise. This section does not apply because Plaintiff is not asking about Defendant's financial condition. Plaintiff just wants to know the source of funds used to purchase the jewelry and other personal effects that Defendant received from Robert. To determine the merits of her potential claims under the M SA Judgment, Plaintiff needs to confirm that those items belong to the community she shared with Robert. Defendant's finances and profits are not at issue in these interrogatories and therefore preclude her from demanding a protective order under Civil Code section 3295(c). In sum, Defendant's objection based privacy rights must be overruled because none of her financial information is at stake in answering these interrogatories. (c) Annoyance and Harassment An objection based on “annoyance and harassment”is not a recognized objection for interrogatories. Defendantcites to Cal. Code Civ. Proc. § 2030.090(b) as the basis for her 9 PLAINTIFF’S MOTION TO COMPEL DEFENDANTS’ FURTHER RESPONSES TOSPECIAL INTERROGATORIES 1 2 3 4 5 6 7 8 9 10 S_ 11 28 12 5 13 GSE 14 <2 =O 8 16 28c 17 =: 18 © 19 20 N O N N N N N N N N c o N N O O U n ~ ~ Ww W N B Dairy Law Group AndJustice for All objection predicated on annoyance and harassment, but that statute only applies to a protective order. Itis not an objection. If Defendant feels that these interrogatories cause unwarranted annoyance, embarrassment, oppression, undue burden or expense, she may move for a protective order, but she must do so promptly. (Cal. Code Civ. Proc. § 2030.090(a).) Here, Defendant has not moved for a protective order and therefore has not acted promptly. Defendant has no pending motion for a protective order, nor did Defendant or her counsel ever meet and confer over the issue of a protective order. Thus, Cal. Code Civ. Proc. § 2030.090 cannot apply. Without more, “annoyance and harassment” is not an objection. Furthermore, the court has no good cause to grant a protective order. (Cal. Code Civ. Proc. § 2030.090(b).) To prevail, Defendant must provide “some showing either of an intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought.” (West Pico Furniture Co. of Los Angeles v. Superior Court In and For Los Angeles County (1961) 56 Cal.2d 407, 417.) Defendant has failed to meet the burden of showing oppression. In her meet and confer correspondences, Defendant explained that the interrogatories were annoying and harassing because she believed the questions “have nothing to do with the subject matter ofthis case.” (Nguyen Decl. Ex. 4.) Even if true, such grounds are insufficient basis for oppression. Moreover, Plaintiff has no intention to harass Defendant. She misinterprets Plaintiff’s queries about her pre-marital agreement as a malicious plan to harass and annoy her, even though the discovery at issue is aimed at a matter eminently relevant and of great importance to Plaintiff's claims under a judgment that governs the division of her community assets. In propounding these interrogatories, Plaintiff is evaluating the source of the personal property listed in Defendant's pre-marital agreement because she believes that they were stolen from Marjorie’s community share and hidden from her knowledge. To fully pursue her claims under the M SA judgment, Plaintiff needs substantive information to determine the merits of her potential claims. In sum, Defendant’s objections based on “annoyance and harassment” should be overruled because they are inapplicable here. 10 PLAINTIFF’S MOTION TO COMPEL DEFENDANTS’ FURTHER RESPONSES TOSPECIAL INTERROGATORIES 1 2 3 4 5 6 7 8 9 10 S_ 11 28 12 5 13 GSE 14 801s =O 8 16 a = 17 =: 18 © 19 20 21 22 23 24 25 26 27 28 Dairy Law Group AndJustice for All C. Monetary Sanctions C overing R easonable E xpenses and F ees Should Be Awarded Against Defendant for Discovery Misuse Code of Civil Procedure, section 2030(a) allows the court to impose monetary sanctions for reasonable expenses, including attorney’s fees,to the party engaging in the misuse of the discovery process, or any attorney advising that conduct. The Discovery Referee should impose monetary sanctions against D efendant and herattorney of record, John B. Stephens of Stephens Friedland LLP, because they have engaged in a misuse of the discovery process and acted without substantial justification. Cal. Code Civ. Proc. §§ 2023.010(e) and (f) define the "misuse of the discovery process" to include "making, without substantial justification, an unmeritorious objection to discovery" and "making an evasive response to discovery." They refuse to answer a single request despite Plaintiff’s demonstration of relevance and good faith reason to propound this discovery set. Furthermore, Mr. Stephens refused to exercise good faith when participating in the enhanced “meet and confer” teleconference with the Discovery Referee and Plaintiff’s counsel. Before the parties could begin discussion, Mr. Stephens informed the Discovery Referee that he would not do anything unless a court order mandates Defendant’s further response. (Nguyen Decl. 19g.) His conduct has caused Plaintiff to unnecessarily waste valuable time, money, and other resources to acquire information that is undoubtedly non- privileged and relevant to the instant action. The whole purpose of the enhanced meet and confer requirement is to circumvent the expensive and time-consuming law and motion practice. Mr. Stephens acted in bad faith because he scheduled an enhanced meet and confer only to instruct Plaintiff to file this Motion; he therefore has made no good faith attemptat informal resolution. Based on Defendant’s refusal to cooperate and bad faith objections, Defendant and her advising attorney, Mr. Stephens, should be sanctioned in the amount of $1,993.75 to compensate Plaintiff for the resources expended in pursuing this Motion. I I 11 PLAINTIFF’S MOTION TO COMPEL DEFENDANTS’ FURTHER RESPONSES TOSPECIAL INTERROGATORIES © 0 0 N N o o u l B A Ww W N O R e l A Ww W N N H L O = [e p] D A I L Y L A W G R O U P 6 1 0 N e w p o r t C e n t e r Dr iv e, Su it e 4 2 0 N e w p o r t B e a c h , Ca li fo rn ia 9 2 6 6 0 N N N N N N N N N N F B F B — o o ~ S O O n E S N w N o = o O © o o ~ o n Dairy Law Group AndJustice for All IV. CONCLUSION Plaintiff respectfully requests that the Discovery Referee issue an order (1) striking Defendant’s preliminary statements and overruling all her general and specific objections;(2) compelling Defendant to provide substantive responses without objections to Special Interrogatory Nos. 1 through 255 without objections, and (3) granting monetary sanctions against Defendant and her attorney of record in the amount of $3,643.75 for discovery misuse. Dated: March 16, 2017 DAILY LAW GROUP Michelle P. Nguyen, Attorneys for Plaintiff CATHY R.HOLMES,as the Administrator of the Estate of Marjorie J. Wahler 12 PLAINTIFF’S MOTION TO COMPEL DEFENDANTS’ FURTHER RESPONSES TOSPECIAL INTERROGATORIES 1 2 3 4 5 6 7 8 9 10 S_ 11 28 12 5 13 os 14 S821 528 16 55% 17 =: 18 © 19 20 21 22 23 24 25 26 27 28 Dairy Law Group AndJustice for All PROOF OF SERVICE STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) |, the undersigned, am employed in the County of Orange, State of California. | am over the age of 18 and not a party to the within action. | am employed by Daily Law Group, whose business address is: 610 Newport Center Drive, Suite 420, Newport Beach, California 92660 (the “firm"). On March 16, 2017, | served the foregoing document(s) described as NOTICE OF MOTION AND MOTION TO COMPELDEFENDANTS’ FURTHER RESPONSES TO PLAINTIFF’S FIRST SET OF SPECIAL INTERROGATORIES AND FOR MONETARY SANCTIONS IN THE AMOUNT OF $3,643.75 AGAINST DEFENDANT AND HER ATTORNEY OF RECORD JOHN B. STEPHENS; MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT THEREOF on the interested parties in this action by placing true copy(ies) thereof, via One Legal and/or by enclosing same in sealed envelope(s) with postage thereon fully prepaid and by causing such envelope(s) to be deposited in the mail at Newport Beach, California, addressed as follows: See attached Service List. XI BY E-MAIL ASFOLLOWS: | caused the documents to be sent to the personsat the electronic notification addresses listed below in compliance with the Code of Civil Procedure §§ 1013(g), 1010.6. The transmission was reported complete and without error. [] BY MAIL ASFOLLOWS: Iam “readily familiar” with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Newport Beach, California, in the ordinary course of business. | am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit, XI STATE--I declare under penalty of perjury, under the laws of the State of California, that the above is true and correct. [1 FEDERAL--I declare that | am employed in the office of a member of the Bar of this Court at whose direction the service was made. | declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on March 16, 2017, at Newport Beach, California. Puchelle Michelle Nguyen PLAINTIFF’S MOTION TO COMPEL DEFENDANTS’ FURTHER RESPONSES TOSPECIAL INTERROGATORIES © 0 0 N N o o u l B A Ww W N O R e l A Ww W N N H L O = [e p] D A I L Y L A W G R O U P 6 1 0 N e w p o r t C e n t e r Dr iv e, Su it e 4 2 0 N e w p o r t B e a c h , Ca li fo rn ia 9 2 6 6 0 N o N o N o N o N o N o N o N o — — — — ~ S S O n ~ w N o _ o O O O o o ~ o n N o o o Dairy Law Group AndJustice for All SERVICE LIST COUNSEL PARTIES James D. Daily, Esq. (SBN 146699) Michelle P. Nguyen, Esq. (SBN 306964) Michael R. Jones, Esq. (SBN 306957) DAILY LAW GROUP 610 Newport Center Drive, Suite 420 Newport Beach, California 92660 Telephone: (949) 662-6000 Facsimile: (949) 258-5555 E-mail: jdaily@ dailylawgroup.com E-mail: mnguyen@ dailylawgroup.com E-mail: mjones@ dailylawgroup.com AttomeysforCATHY R.HOLMES,as Administrator of the E state of Marjorie]. Wahler Alyssa C. Westover, Esq. (SBN 154754) ALYSSA C. WESTOVER, A Professional Law Corporation 3450 E. Spring Street, Suite 107 Long Beach, California 90806 Telephone: (562) 472-0393 Facsimile: (562) 988-1414 E-mail: acwlaw@ hotmail.com AttomeysforCATHY R.HOLMES,as Administrator of the E state of Marjorie]. Wahler Michael J. Buley, Esq. (SBN 164249) Lisa A. Navarro, Esq. (SBN 195798) Michael J. Wright, Esq. (SBN 231789) BULEY LAW APC 4667 MacArthur Blvd., Suite 300 Newport Beach, California 92660 Telephone: (949) 752-1161 Facsimile: (949) 752-1195 E-mail: mjbuley@ buleylaw.com E-mail: Inavarro@ buleylaw.com E-mail: mjwright@ buleylaw.com AttomeysforVALAREE A. WAHLER, as Trustee of The Wahler Family Trust dated April 9, 1976; VALAREE A. WAHLER, as Trustee of The Robert and V alaree Wahler Trust dated November 6, 2007; and VALAREE A. WAHLER, in her individual capacity John B. Stephens, Esq. (SBN 142718) Tiffany D. Chukiat, Esq. (SBN 267347) STEPHENS FRIEDLAND LLP 2603 Main Street, Suite 350 Irvine, California 92614 Telephone: (949) 468-3200 Facsimile: (949) 468-3201 E-mail: john@sf-lawyers.com E-mail: tiffany@ sf-lawyers.com AttomeysforVALAREE A. WAHLER, as Trustee of The Wahler Family Trust dated April 9, 1976; VALAREE A. WAHLER, as Trustee of The Robert and V alaree Wahler Trust dated November 6, 2007; and VALAREE A. WAHLER, in her individual capacity PLAINTIFF’S MOTION TO COMPEL DEFENDANTS’ FURTHER RESPONSES TOSPECIAL INTERROGATORIES