Carolyn Smith vs. County of OrangeMotion to Compel Answers to InterrogatoriesCal. Super. - 4th Dist.September 13, 201610 El 12 13 14 15 16 17 18 19 20 2:1 22 23 24 25 26 27 28 WESLEY S. WENIG, State Bar No. 162351 4333 Park Terrace Dr. #110 Westlake Village, CA 91361 Telephone No.: (818) 865-0444 Attorneys for Defendant County of Orange CAROLYN SMITH and GERALD SMITH, Plaintiffs, VS. COUNTY OF ORANGE, and DOES 1 to 10, Defendants. GARRY L. MONTANARI, State Bar No. 89790 MICHAELIS, MONTANARI & JOHNSON, P.C. FEE EXEMPT PURSUANT TO GOVERNMENT CODE §6103 ELECTRONICALLY FILED Superior Court of California, County of Orange 07/20/2017 at 12:24:00 PM Clerk of the Superior Court By Danielle Jurado, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE CASE NO.: 30-2016-00874481-CU-PO-CIC Judge: Honorable Mary Fingal Schulte Dept: C21 NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES (SET NO. TWO); REQUEST FOR MONETARY SANCTIONS; DECLARATION OF WESLEY S. WENIG AND EXHIBITS IN SUPPORT THEREOF [Filed Separately but concurrently herewith: SEPARATE STATEMENT OF ITEMS IN DISPUTE IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES (SET NO. TWO)] RESERVATION NO.: 72628276 Date: September 21,2017 Time: 1:30 p.m. Dept.: C21 Complaint filed: September 13, 2016 Trial Date: December 11, 2017 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD. PLEASE TAKE NOTICE that on September 21,2017 at 1:30 p.m.., or as soon thereafter as the matter may be heard in Department C21 of the above-entitled court, located at 700 Civic Center Drive West , Santa Ana, California 92701, defendant, COUNTY OF ORANGE, will and hereby does move for an order compelling plaintiff to provide further answers to the COUNTY OF MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES (SET NO. TWO) 10 11 12 1.3 14 15 16 17 18 19 20 21 22 23 24 25 26 23 28 ORANGE’s Special Interrogatories (Set No. Two). The COUNTY OF ORANGE will also move the Court for an order that plaintiffs, CAROLYN SMITH and GERALD SMITH, and their counsel of record, Dickson Kohan & Bablove LLP, pay the sum of $4,387.50 as the reasonable attorney’s fees incurred by the COUNTY OF ORANGE for these proceedings. This motion will be made pursuant to Code of Civil Procedure section 2030.300, subdivision (a)(1), on the ground that the supplemental response provided is incomplete, and pursuant to Code of Civil Procedure section 2030.300, subdivision (a)(3), on the ground that the objections provided are without merit. The COUNTY OF ORANGE also seeks an award of monetary sanctions in the amount of $4,387.50, pursuant to Code of Civil Procedure section 2030.300, subdivision (d). DATED: July 19, 2017 MICHAELIS, MONTANARI & J 7 By: | WESLEY S. WENIG I Attorneys for Defendants, COUNTY OF ORANGE 0:\16522\pld\p-mtn.compel.srogs2.wpd 2 MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES (SET NO. TWO) 10 11 12 13 14 15 16 i 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff CAROLYN SMITH, a 77 year old Canadian citizen from Winnipeg, Manitoba, alleges that she tripped and fell in passenger Terminal A at John Wayne Airport (hereinafter, “AIRPORT”) on March 1, 2016. Plaintiff is claiming that she tripped on an expansion joint cover in between the American Airlines ticket counter and the Transportation Security Administration (TSA) security checkpoint. On April 26,2017, the COUNTY OF ORANGE served Special Interrogatories (Set No. Two) on plaintiff, CAROLYN SMITH. (See: Exhibit “A” to Declaration of Wesley S. Wenig (hereinafter, “Wenig Dec.”).") On May 28, 2017, plaintiff served responses. (See: Ex. “B”.) On June 9, 2017, the COUNTY OF ORANGE sent a meet-and-confer letter regarding the responses by both first-class mail and email, requesting supplemental responses by June 16,2017. (See: Ex. “C”.) Plaintiff served a supplemental response to Special Interrogatory No. 34 on June 30, 2017. (See: Ex. “F”.) The COUNTY OF ORANGE contends that plaintiff’s responses, both original and supplemental, and objections to Special Interrogatories Nos. 34, 35, 36, 37, 38, 39, 40, and 41 are inadequate and do not comply with discovery requirements. IL. ARGUMENT A. The Court Has Authority to Compel Further Answers Code of Civil Procedure, section 2030.300, subdivision (a), provides: “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 any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete. 2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. 3) An objection to an interrogatory is without merit or too general. (Cal. Code Civ. Proc., § 2030.300, subd. (a).) 'All subsequent references to “Exhibit” will refer to those Exhibits attached to the Declaration of Wesley S. Wenig. 1 MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES (SET NO. TWO) 10 11 12 135 14 15 16 dg 18 19 20 21 22 23 24 25 26 2 28 1. The Instant Motion Is Timely Code of Civil Procedure, section 2030.300, subdivision (¢) requires that notice of a motion to compel further answers must be filed “. . . within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing . . .”. (Code Civ. Proc., § 2030.300, subd. ©.) Here, plaintiff’s supplemental response was served on June 30,2017. (See: Ex. “E”.) This motion is being filed within the time limit. 2. Movant Has Satisfied the Meet-and-Confer Requirement Pursuant to Code of Civil Procedure, section 2030.300, subdivision (b), a motion to compel further responses “. . . shall be accompanied by a meet and confer declaration under Section 2016.040.” (Cal. Code Civ. Proc. § 2030.300, subd. (b).) Here, counsel for the COUNTY OF ORANGE has engaged in meet-and-confer efforts with counsel for plaintiff. (See: Ex. “C”-“D”; Wenig Dec. qf 7-18.) Neither written nor telephonic meet-and-confer efforts were successful in resolving all of the outstanding discovery disputes, as set forth in the accompanying meet and confer declaration and an email from plaintiffs’ counsel. (See: Wenig Dec., If 7-18; Ex. “D”, “E”.) B. Plaintiff’s Supplemental Response Is Incomplete Code of Civil Procedure, section 2030.010, subdivision (a)(1), authorizes the court to compel a further response to an interrogatory where “[a]n answer to a particular interrogatory is evasive or incomplete. (Cal. Code Civ. Proc. § 2030.010, subd. (a)(1).) Additionally, Code of Civil Procedure, section 2030.220, provides: “(a) Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits. (b) Ifan interrogatory cannot be answered completely, it shall be answered to the extent possible. (¢) 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 reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.” (Cal. Code Civ. Proc., § 2030.220.) 111 2 MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES (SET NO. TWO) 10 11 12 13 14 15 16 of 18 18 20 21 22 2 24 25 26 2] 28 Furthermore, the Court of Appeal has held that “[w]here the question is specific and explicit, an answer which supplies only a portion of the information sought is wholly insufficient.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.) Here, Special Interrogatory No. 34 requests the date and time that the attached photographs were taken. Plaintiffs have only provided the date on which the photographs were taken. Plaintiffs have not provided the time when the photographs were taken, nor have they side any explanation for their failure to do so. A full, complete, and code-compliant response to Special Interrogatory No. 34 would provide both pieces of information requested. Therefore, because plaintiff’s supplemental response to Special Interrogatory No. 34 is incomplete and, therefore, “wholly insufficient”, this Court is respectfully requested to order plaintiff to provide a further, complete response to Special Interrogatory No. 34. C. Plaintiff’s Objections Lack Merit and Are Not Well-Taken Code of Civil Procedure section 2030.300, subdivision (a)(3), authorizes the court to compel further responses when “[a]n objection to an interrogatory is without merit or too general.” (Cal. Code Civ. Proc. § 2030.300, subd. (a)(3).) Here, plaintiff’s responses to Special Interrogatories Nos. 35, 36, 37, 38, 39, and 40, and plaintiff’s supplemental response to Special Interrogatory No. 34 consist almost entirely of objections that are not well-taken. Ls Special Interrogatories Nos. 34-40 Are Full and Complete in and of Themselves Code of Civil Procedure section 2030.060, subdivision (d), provides that “[e]ach interrogatory shall be full and complete in and of itself. No preface or instruction shall be included with a set of interrogatories unless it has been approved under Chapter 17 (commencing with Section 2033.710).” (Cal. Code Civ. Proc., § 2030.060, subd. (d).) Here, plaintiff has objected to Special Interrogatories Nos. 34, 35, 36, 37, 38, 39, and 40 on the ground that each is not full and complete in and of itself. However, none of those interrogatories contain a “preface or instruction”, as specified in section 2030.060, subdivision (d). Therefore, plaintiff’s objections that Special Interrogatories Nos. 34, 35, 36, 37, 38, 39, 40, and 41 are not full and complete in and of themselves are inapplicable and without merit. /1/ 3 MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES (SET NO. TWO) 10 1.1: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Special Interrogatories Nos. 34-41 Do Not Violate Attorney-Client Privilege or Attorney Work Product Protection The attorney-client privilege “. . . authorizes a client to refuse to disclose, and to prevent others from disclosing, confidential communications between attorney and client.” (Mitchell v. Superior Court (1984) 37 Cal.3d 591, 599.) “The party claiming the privilege has the burden of establishing the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733.) Here, plaintiff objects to Special Interrogatories Nos. 34, 35, 36, 37, 38, 39, 40, and 41 as violating attorney-client privilege and work product protection. However, plaintiff has not demonstrated any preliminary facts to establish that attorney-client privilege or work product protection apply. First, the Court of Appeal has made clear, “the existence of a document containing privileged information is not privileged. Interrogatories may be used to discover the existence of documents in the other party’s possession. Ifan interrogatory asks the responding party to identify a document, an adequate response must include a description of the document.” (Hernandez v. Superior Court (2003) 112 Cal. App.4th 285, 293 (citations omitted).) Here, however, plaintiff has objected to Special Interrogatory No. 34, which requests the date and time that the photographs were taken, on the grounds that providing the requested information violates attorney-client privilege. The information requested in Special Interrogatory No. 34 is akin to a request to identify a document and such information is not privileged. Additionally, plaintiff has put the photographs at issue, thereby waiving their unsupported and unsubstantiated work-product protection claim. Second, the identity of witnesses is discoverable information. Indeed, “[c]entral to the discovery process is the identification of potential witnesses.” (Puerto v. Superior Court (2008) 158 Cal. App.4th 1242, 1249.) Furthermore, “when responding to discovery, counsel generally has a duty to disclose additional information known to counsel, such as the names of witnesses. . . .” (Regency Health Services, Inc. v. Superior Court (1998) 64 Cal.App.4th 1496, 1504.) Here, Special Interrogatory No. 35 seeks the identity of the photographer who took the attached photographs; Special Interrogatory No. 36 seeks the identity of the person who removed the 4 MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES (SET NO. TWO) 10 11 12 13 14 15 16 1.7 18 19 20 241 22 23 24 29 26 277 28 screws depicted in the photographs; Special Interrogatory No. 40 seeks the name of the person at the COUNTY OF ORANGE or the AIRPORT, if any, to whom the removal of the screws was reported; and Special Interrogatory No. 41 seeks the names of witnesses to the condition of the screws depicted in the photographs. This information is akin to the identity of witnesses, which is discoverable and not privileged. Notably, Special Interrogatory No. 40 seeks the identity of the person at the COUNTY OF ORANGE or the AIRPORT, if any, to whom the removal of the screws reported. The COUNTY OF ORANGE is an adverse party to plaintiff. As such, neither plaintiff nor her counsel may credibly claim that the identity of such a person is covered by attorney-client privilege. Additionally, such information is not entitled to work product protection, nor has that objection been substantiated. Third, Special Interrogatories Nos. 37, 38, and 39 request specific factual information: whether prior permission to remove the screws was obtained from the COUNTY OF ORANGE or the AIRPORT; if the removal of the screws was reported to the COUNTY OF ORANGE or the AIRPORT; and the date the condition of the screws was reported to the COUNTY OF ORANGE or the AIRPORT, respectively. None of these interrogatories pertains to confidential communications between attorney and client. On the contrary they pertain to the existence of communications between plaintiff’s counsel and defendant. Therefore, this Court is respectfully requested to determine that plaintiff's attorney-client privilege and work-product protection objections are spurious. 3 Special Interrogatories Nos. 34-41 Do Not Call for the Premature Disclosure of Expert Information Plaintiff objects to Special Interrogatories Nos. 34,35, 36, 37, 38, 39, 40, and 41 on the ground that each Interrogatory calls for the premature disclosure of expert information. This objection is spurious, particularly when examined in the context of the specific interrogatories at issue. First, Special Interrogatory No. 34 seeks the date and time when the attached photographs were taken. Special Interrogatory No. 39 also seeks a date. This objection is so ridiculous that plaintiff has not even bothered to substantiate how the date and time when photographs were taken 5 MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES (SET NO. TWO) 10 Jd; 12 13 14 15 16 17 18 1.9 20 21 22 23 24 295 26 20 28 would somehow constitute the premature disclosure or designation of expert information. Second, Special Interrogatory No. 35 seeks the identity of the person who took the photographs. Revealing the identity of a photographer, particularly where plaintiff has put the photographs at issue, as will be discussed further, infi'a, does not constitute the disclosure or designation of plaintiff’s expert witness(es). Similarly, Special Interrogatory No. 36 seeks the identity of the person who removed the screws depicted in the photographs. Revealing the identity of this individual who took an action depicted in photographs that plaintiff has put at issue need not reveal the identity of expert witnesses. Furthermore, Special Interrogatory No. 41 seeks the identity of witnesses to the condition of the screws depicted in the photographs that plaintiff has put at issue in this action. For the same reasons, a response to this interrogatory would not reveal expert information. Third, Special Interrogatories No. 37 and 38 are, essentially, “yes or no” questions. They seek to know whether plaintiff received permission from the COUNTY OF ORANGE or the AIRPORT before removing the screws and whether plaintiff reported the removal of the screws to the COUNTY OF ORANGE or the AIRPORT, respectively. Again, there is no conceivable way that responding to these interrogatories would reveal expert information. It is also telling that plaintiff has not bothered to attempt to substantiate this absurd objection. Fourth, Special Interrogatory No. 40 seeks the identity of an employee of the COUNTY OF ORANGE or the AIRPORT. It is, once again, inconceivable that responding to this interrogatory would somehow constitute the revelation of plaintiff’s experts. Therefore, plaintiff’s objections that Special Interrogatories Nos. 34, 35, 36, 37, 38, 39, 40, and 41 call for the premature disclosure of expert information are inapplicable and without merit. 4. Special Interrogatories Nos. 34-41 Are Reasonably-Calculated to Lead to the Discovery of Admissible Evidence The Court of Appeal has held that “. . . in order to be discoverable, the information sought must meet a two-pronged test. It must be (1) relevant to the subject matter involved in the pending action and (2) either admissible in evidence or reasonably calculated to lead to the discovery of admissible evidence.” (Norton v. Superior Court (1994) 24 Cal.App.4th 1750, 1755.) 6 MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES (SET NO. TWO) 10 dll 12 13 14 15 16 13 18 19 20 2:1 22 23 24 28 26 20 28 As to the first prong, “[r]elevancy to the subject matter of the litigation is a much broader concept than relevancy to the precise issues presented by the pleadings.” (/d., at 1760.) Further, the Court of Appeal has held that “[i]nterrogatories relevant to the subject matter are permissible including questions which might possibly lead to the discovery of admissible evidence or information which would be helpful in preparing for the trial of a particular case.” (Deyo, supra, 84 Cal.App.3d at 781.) As to the second prong, “. . . California courts have been broad-minded in determining whether discovery is reasonably calculated to lead to admissible evidence. As a practical matter, it is difficult to define at the discovery stage what evidence will be relevant at trial. Therefore, the party seeking discovery is entitled to substantial leeway. Furthermore, California’s liberal approach to permissible discovery generally has led courts to resolve any doubt in favor of permitting discovery.” (Norton, supra, 24 Cal.App.4th at 1761.) Here, plaintiffs object that Special Interrogatories Nos. 34, 35,36, 37, 38, 39, 40, and 41 are not reasonably calculated to lead to the discovery of admissible evidence. However, the photographs at issue in these interrogatories depict the precise area where plaintiff alleges that she fell. Therefore, the photographs are of central relevance to the subject matter of her lawsuit. Therefore, because Special Interrogatories Nos. 34, 35, 36, 37, 38, 39, 40, and 41 pertain to the subject mater of the litigation, they are reasonably calculated to lead to the discovery of admissible evidence. S. Special Interrogatories Nos. 34-41 Do Not Constitute a Violation of the Mediation Privilege California Evidence code section 1119, subdivision (b), provides that “[n]o writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.” (Cal. Evid. Code § 1119, subd. (b).) A photograph is considered to be a “writing” under Evidence Code section 250. (See: Rojas v. Superior Court (2004) 33 Cal.4th 407, 416.) /11 7 MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES (SET NO. TWO) 10 11 12 13 14 15 le 17 18 19 20 21 22 23 24 25 26 27 28 California Evidence Code section 1120, subdivision (a), provides that “[e]vidence otherwise admissible or subject to discovery outside of a mediation or a mediation consultation shall not be or become inadmissible or protected from disclosure solely by reason of its introduction or use in a mediation or a mediation consultation.” (Cal. Evid. Code § 1120.) California Evidence Code section 1120 *. .. limits the scope of § 1119, thereby preventing litigants from using mediation as a pretext to shield materials from disclosure.” (Gonzales v. T-Mobile, USA, Inc., 2014 U.S. Dist. LEXIS 113099, at *18 (S.D. Cal. 2014).) The Supreme Court of California has held that “. . . under section 1120, a party cannot secure protection for a writing-including a photograph, a witness statement, or an analysis of a test sample-that was not ‘prepared for the purpose of, in the course of, or pursuant to, a mediation’ (§ 1119, subd. (b)) simply by using or introducing it in a mediation or even including it as part of a writing . . . that was ‘prepared for the purpose of, in the course of, or pursuant to, a mediation.’ (Ibid.)” (Rojas v. Superior Court (2004) 33 Cal.4th 407,417.) Indeed, “[e]ven under Evidence Code section 1119, which exempts mediation proceedings from being admitted into evidence or discovered, the use of a writing in a mediation does not preclude that document from being admitted or produced in discovery unless it was specifically prepared for use in the mediation.” (Volkswagen of America, Inc. v. Superior Court (2006) 139 Cal.App.4th 1481, 1496.) Plaintiffs’ contention that the photographs at issue are protected by the mediation privilege is inaccurate. The photographs that are at issue are evidentiary in nature and do not become confidential just because they were used in a mediation. Indeed, Plaintiffs’ response to Form Interrogatory No. 12.4 and paragraph 6 of the Martin Declaration in Support of Plaintiffs’ Motion for Sanctions makes clear that these photographs were not taken for the purpose of the mediation, but substantially predate that mediation by nearly one year, having been taken on April 11, 2016. Consequently, the protection of Evidence Code section 1119 does not apply. Finally, it should also be noted that any claim of confidentiality was waived when Plaintiffs provided evidence of the content of the photographs in paragraph 6 of the Martin Declaration. Therefore, Special Interrogatories Nos. 34, 35, 36, 37, 38, 39, 40, and 41 do not violate the mediation privilege. 8 MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES (SET NO. TWO) 10 AT 12 13 14 15 16 17 18 19 20 Z1, 22 Z3 24 25 26 27 28 Cc. The Court Has Authority to Award Sanctions “Misuse of the discovery process may result in the imposition of a variety of sanctions.” (Karlsson, supra, 140 Cal. App.4that 1214.) Code of Civil Procedure section 2030.300, subdivision (d), provides: “The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Cal. Code Civ. Proc., § 2030.300, subd. (d).) Here, the COUNTY OF ORANGE has incurred fees in bringing this motion, including time reviewing responses, drafting meet-and-confer correspondence, and researching and drafting this motion in the amount of $4,387.50. (See: Wenig Dec., § 19.) III. CONCLUSION Based on the foregoing, this Court is respectfully requested to Order plaintiff to provide supplemental responses to Special Interrogatories Nos. 34, 35, 36, 37, 38, 39, 40, and 41, and to make an award of sanctions against plaintiff and her attorneys of record in the amount of $4,387.50. DATED: July 19, 2017 MICHAELIS, MONTANARI & JOHNSON [ By: WESLEY S. WENIG Attorneys for Defendant, COUNTY OF ORANGE 9 MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES (SET NO. TWO) 10 1c JZ 13 14 15 16 de 18 19 20 2.1 22 23 24 25 26 27 28 DECLARATION OF WESLEY S. WENIG I, WESLEY S. WENIG, declare: 1. [ am an attorney-at-law duly admitted to practice before all the Courts of the State of California. I am an associate at the law firm of Michaelis, Montanari & Johnson, counsel of record for defendant County of Orange. The facts stated below are true and correct of my own personal knowledge, except as to those stated upon information and belief, and as to those matters, I believe them to be true. 2. This declaration is filed pursuant to California Code of Civil Procedure section 2030.300, subdivision (b), and pertains to the Motion to Compel Further Answers to Form Interrogatories (Set No. Two) filed by defendant, County of Orange, against plaintiff, Carolyn Smith. 3, On April 26,2017, the County of Orange propounded Special Interrogatories (Set No. Two) upon plaintiff. 4. A true and correct copy of Special Interrogatories (Set No. Two), marked as Exhibit “A,” is attached hereto and incorporated herein by reference. 2 Plaintiff served Responses to Special Interrogatories (Set No. Two) on May 28,2017. 6. A true and correct copy of plaintiff's Responses to Special Interrogatories (Set No. Two), marked as Exhibit “B”, is attached hereto and incorporated herein by reference. 7 On June 9, 2017, 1 sent a meet-and-confer letter to plaintiff’s counsel, Nicholas P. Kohan, Esq., by email and first-class mail. 8. A true and correct copy of my June 9, 2017 letter to Mr. Kohan, marked as Exhibit “C”, is attached hereto and incorporated herein by reference. 9, On June 16, 2017, Mr. Kohan sent me a response to my meet-and-confer letter via facsimile. 10. A trueand correct copy of Mr. Kohan’s June 16, 2017 letter to me, marked as Exhibit “D,” is attached hereto and incorporated herein by reference. 11. On June 20, 2017, T had a telephonic meet-and-confer conversation, pertaining to plaintiff's responses to Special Interrogatories (Set No. Two) and other discovery. 12. On June 20, 2017, Mr. Kohan sent me an email message confirming that we were 10 MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES (SET NO. TWO) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 unable to resolve the disputes pertaining to Special Interrogatories (Set No. Two). 13. Atrueand correct copy of Mr. Kohan’s June 20, 2017 email to me, marked as Exhibit “E”, is attached hereto and incorporated herein by reference. 14. OnlJune 30,2017, plaintiff served a Supplemental Response to Special Interrogatory No. 34. 15. Atrueand correct copy of plaintiffs Supplemental Response to Special Interrogatory No. 34, marked as Exhibit “F”, is attached hereto and incorporated herein by reference. 16. Plaintiff’s Supplemental Response to Special Interrogatory No. 34 was incomplete and, therefore, did not resolve the outstanding issues pertaining to that interrogatory. 17. My hourly billing rate on this matter is $225. I spent: 2.0 hours reviewing and evaluating plaintiff’s responses and objections; .5 hours reviewing plaintiff's supplemental responses; and 6 hours meeting and conferring and researching and drafting the instant motion and accompanying separate statement. I anticipate spending 6 hours reviewing plaintiff’s opposition and drafting a reply and 5 hours for oral argument. Therefore, the County of Orange has incurred $4,387.50 in fees related to bringing this motion. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 19th day of July, 2017 at Westlake Village, California. ( By: WESLEY S. WENIG 11 MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES (SET NO. TWO) EXHIBIT A 10 11 12 13 14 15 . 16 17 18 19 20 21 22 23 24 25 26 27 28 GARRY L. MONTANARI, State Bar No. 89790 WESLEY S. WENIG, State Bar No. 162351 FEE EXEMPT PURSUANT TO MICHAELIS, MONTANARI & JOHNSON, P.C. GOVERNMENT CODE §6103 4333 Park Terrace Dr. #110 Westlake Village, CA 91361 Telephone No.: (818) 865-0444 Attorneys for Defendant COUNTY OF ORANGE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE CASE NO.: 30-2016-00874481-CU-PO-CJC Judge: Honorable Mary Fingal Schulte Dept: C21 SPECIAL INTERROGATORIES TO CAROLYN SMITH and GERALD SMITH, ) ) ) ) PLAINTIFF CAROLYN SMITH ) ) ) ) ) Plaintiffs, VS. COUNTY OF ORANGE, and DOES 1 to 10, (SET NO. TWO) ‘Complaint filed: September 13, 2016 Defendants. Trial Date: December 11, 2017 PROPOUNDING PARTY: Defendant, COUNTY OF ORANGE RESPONDING PARTY: Plaintiff, CAROLYN SMITH SET NO.: Two Pursuant to section 2030.010 of the California Code of Civil Procedure, defendant COUNTY OF ORANGE requests that plaintiff CAROLYN SMITH answer individually under oath the following interrogatories: SPECIAL INTERROGATORIES SPECIAL INTERROGATORY NO. 34: State the date and time the photographs attached as Exhibits A and B were taken. /11 | 1 SPECIAL INTERROGATORIES TO PLAINTIFF CAROLYN SMITH (SET NO.: TWO) 10 11 12 13 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 SPECIAL INTERROGATORY NO. 35: IDENTIFY (“IDENTIFY” means state a person’s name, business address, business telephone number, residence address, residence telephone number, occupation and relationship of each to the responding party) who took the photographs attached hereto as Exhibits A and B. SPECIAL INTERROGATORY NO. 36: IDENTIFY who removed the screws which are depicted laying down on the top of the expansion joint cover in the photographs attached hereto as Exhibits A and B. SPECIAL INTERROGATORY NO. 37: Indicate whether anyone working for the COUNTY OF ORANGE or John Wayne Airport gave prior permission for removal of the screws depicted laying on the top of the expansion joint cover in the photographs attached hereto as Exhibits A and B. SPECIAL INTERROGATORY NO. 38: Was the removal of the screws depicted laying on top of the expansion joint cover in the photographs attached hereto as Exhibits A and B reported to any employee of the COUNTY OF ORANGE or John Wayne Airport on the day the condition depicted in the photographs attached hereto as Exhibits A asi B was observed? SPECIAL INTERROGATORY NO. 39: IDENTIFY the date on which the condition depicted by the screws laying on top of the expansion joint cover in the photographs attached hereto as Exhibits A and B was reported by YOU (“YOU” means plaintiff and her employees, agents and attorneys) to any employee of the COUNTY OF ORANGE or John Wayne Airport. SPECIAL INTERROGATORY NO. 40: IDENTIFY the employee of the COUNTY OF ORANGE or John Wayne Airport to whom the condition of the screws depicted laying on top of the expansion joint cover in the photographs attached hereto as Exhibits A and B was reported, if at all. 111 111 111 2 SPECIAL INTERROGATORIES TO PLAINTIFF CAROLYN SMITH (SET NO.: TWO) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SPECIAL INTERROGATORY NO. 41: IDENTIFY all witnesses to the condition of the screws depicted laying on top of the expansion joint cover on the date the photographs attached hereto as Exhibits A and B were taken. DATED: April 26, 2017 0:\16522\pld\discovery\p-spec.rogs.2.wpd 3 MICHAELIS, MONTANARI & JOHNSON i WESLEY S. WENIG Attorneys for Defendant, COUNTY OF ORANGE f NY J SPECIAL INTERROGATORIES TO PLAINTIFF CAROLYN SMITH (SET NO.: TWO) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 258 26 27 28 DECLARATION OF WESLEY S. WENIG I, WESLEY S. WENIG, declare as follows: 1. I am an attorney at law duly licensed to practice before all the Courts of the State of California. I am a member of the law firm of Michaelis, Montanari & Johnson, counsel of record for defendant COUNTY OF ORANGE. The facts stated below are true and correct of my own knowledge except as to those matters stated upon information and belief, and as to those matters I believe them to be true. 2: I am propounding to plaintiff the attached set of interrogatories. 3 This set of interrogatories will cause the total number of specially prepared interrogatories propounded to the party to whom they are directed to exceed the number of specially prepared interrogatories permitted by Code of Civil Procedure section 2030.030(a)(1). 4. I have previously propounded a total of 33 interrogatories to this party, of which 33 interrogatories were not official form interrogatories. | 8 This set of interrogatories contains a total of eight specially prepared interrogatories. 6. I am familiar with the issues and the previous discovery conducted by all of the parties in the case. 7. I have personally examined each of the questions in this set of interrogatories. 8. This number of questions is warranted under Code of Civil Procedure section 2030.040(a) because of the quantity and complexity of the issues involved in this case and because of the expedience of using this method of discovery. 9. None of the questions in this set of interrogatories is being propounded for any improper purpose, such as to harass the party, or the attorney for the party, to whom it is directed, or to cause unnecessary delay or needless increase in the cost of litigation. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct Executed this 26th day of April 2017 at Westlake Village, California. (tna, \ WESLEY S. WENIG 7 0:\16522\pld\discovery\p-spec.rogs.2.wpd 4 SPECIAL INTERROGATORIES TO PLAINTIFF CAROLYN SMITH (SET NO.: TWO) EXHIBIT “A” T A T E E E E EXHIBIT “B” 10 10. 12 L3 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF F SERVICE STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) I am employed in the County of Los Angeles, State of California. Iam over the age of 18 and not a party to the within action; my business address is 4333 Park Terrace Dr. #110, Westlake Village, CA 91361. On April 2, 2017, 1 served the foregoing document described as SPECIAL INTERROGATORIES TO PLAINTIFF CAROLYN SMITH (SET NO. TWO) onthe interested parties in this action by placing a true copy thereof in a sealed envelope with postage thereon fully prepaid in the United States mail at Westlake Village, California, addressed as follows: Nicholas P. Kohan, Esq. Attorneys for plaintiffs Dickson Kohan & Bablove LLP 1101 Dove St. #220 Newport Beach, CA 92660 tel: (949) 535-1341; fax: (949) 535-1449 [X] (MAIL) I deposited such envelope in the mail at Westlake Village, California. The envelope was mailed with postage thereon fully prepaid. Iam “readily familiar” with firm’s practice of collection and processing correspondence for mailing. It is deposited with U.S. postal service on that same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than 1 day after date of deposit for mailing in affidavit. [1] (FEDERAL EXPRESS) I deposited such envelope addressed to the parties at the Federal Express office located at Westlake Village, California. The envelopes were mailed fully prepaid. I am “readily familiar” with firm’s practice of collection and processing correspondence for mailing with Federal Express. Itis deposited with the Westlake Village Federal Express service on that same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if cancellation date is more than 1 day after date of deposit for overnight mailing in affidavit. [1 (BY PERSONAL SERVICE) I caused such envelope to be delivered by hand to the offices of the addressees listed below. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on April 26, 2017, at Westlake Village, California. 547 Ae Lo Barbara Haus mann, CCLS EXHIBIT B OO 0 NN O N wn RA W N N O N N N N N N N N mm e m ee e m em e m e d pe d e d co N O N wn BA A W N = O O O N Y N R W w NN = OO DICKSON KOHAN & BABLOVE LLP Nicholas P. Kohan (SBN 257134) nkohan@dkblawyers.com Matthew P. Dickson (SBN 251800) mdickson@dkblawyers.com 1101 Dove Street, Suite 220 Newport Beach, CA 92660 Telephone: 949.535.1341 Facsimile: 949.535.1449 Attorneys for Plaintiffs Carolyn Smith and Gerald Smith SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER CAROLYN SMITH and GERALD SMITH, ) Case No.: 30-2016-00874481-CU-PO-CJC ) Judge: Hon. Mary Fingal Schulte Plaintiffs, ) Dept: C-21 ) Vs. ) PLAINTIFF CAROLYN SMITH’S ) RESPONSE TO SPECIAL COUNTY OF ORANGE; and DOES 1 to 10; ) INTERROGATORIES, SET TWO ) Defendants. ) ) ) ) Complaint Filed: September 13, 2016 ) Trial Date: December 11, 2017 ) ) PROPOUNDING PARTY: COUNTY OF ORANGE RESPONDING PARTY: CAROLYN SMITH SET NO: TWO (2) TO ALL PARTIES HEREIN AND THEIR COUNSEL OF RECORD: Pursuant to Code of Civil Procedure section 2030.010 et seq., Plaintiff CAROLYN SMITH, (“Responding Party”), hereby objects and responds to Defendant COUNTY OF ORANGE’s (“Propounding Party”) Special Interrogatories, Set Two as follows: Di ck so n K o h a n & Ba bl ov e LL P 11 01 Do ve St re et , Su it e 22 0 N e w p o r t B e a c h , C A 9 2 6 6 0 OO 0 3 O&O wn Ah WwW N = 00 N N O N n n BA W N = O V O N N N B R A W L = O PRELIMINARY STATEMENT These responses are made solely for the purpose of this action. Each response is subject to all appropriate objections, including competency, relevancy, materiality, propriety and admissibility, which would require the exclusion of any response set forth herein if the question were asked of, or any response were made by, a witness raat and testifying in court. Additionally, each response is subject to all objections listed in the responses to the interrogatories, which shall be incorporated herein by reference. All such objections are reserved and may be interposed at the time of trial. This Responding Party has not completed its investigation of the facts relating to this action, has not yet completed its discovery in this action, and has not yet completed preparation for trial. Consequently, the following responses are given without prejudice to this Party’s right to allege and/or produce evidence of any subsequently-discovered facts or circumstances. Except for facts explicitly admitted herein, no admission of any nature is to be implied or inferred. The fact that any interrogatory herein has been answered should not be taken as an admission, or a confusion of the existence of any facts set forth or assumed by such interrogatory or that such response constitutes any fact thus set forth or assumed. All responses are given on the basis of a good faith effort to locate the requested information. This Party relies on well-established California authority to the effect that interrogatories cannot be unilaterally designated as continuing in nature, and serves notice that we will not voluntarily provide further responses to these interrogatories if additional information is acquired by us after these responses are served. Notwithstanding the above, this Responding Party reserves the right to change any and all responses herein as additional facts and further information is obtained, new analyses are made, and legal research is completed. The information contained herein is given in a good faith effort to supply as much factual material as is presently known by Responding Party, but should in no way prejudice this Responding Party’s right to make new contentions or provide additional facts or additional information derived from further discovery, investigation, research and/or legal analysis. This preliminary statement shall apply to each and every response given herein, and shall be Di ck so n K o h a n & Ba bl ov e LL P 11 01 D o v e St re et , Su it e 22 0 N e w p o r t Be ac h, CA 92 66 0 OO 60 N N OO Un Hh W O N N D N O K O N R R OD O N O N O N e t op md em t p d fe eb m k fe t p m b p m b fe d c o N N O N Wn BRA WLW = O YO N N R A W S O N = © incorporated by reference as though fully set forth in all of the interrogatory responses appearing on the following pages. RESPONSES TO SPECIAL INTERROGATORIES, SET TWO SPECIAL INTERROGATORY NO. 34: State the date and time the photographs attached as Exhibits A and B were taken. RESPONSE TO SPECIAL INTERROGATORY NO. 34: Objection. This Interrogatory is not “full and complete in and of itself” as required by Code of Civil Procedure section 2030.060. Additionally, it may violate the attorney client and work product privileges. It also calls for premature disclosure of expert information in contravention of Code of Civil Procedure section 2034.010 ef seq. and is not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding those objections, use of the attached photographs in any capacity in this matter is barred by mediation privilege and the contract signed by the County of Orange at the mediation. Responding Party requests that the County of Orange comply with both the law and its contractual obligations and not use or reference the attached photographs or any other information learned during mediation. SPECIAL INTERROGATORY NO. 35: IDENTIFY (“IDENTIFY” means state a person’s name, business address, business telephone number, residence address, residence telephone number, occupation and relationship of each to the responding party) who took the photographs attached hereto as Exhibits A and B. RESPONSE TO SPECIAL INTERROGATORY NO. 35: Objection. This Interrogatory is not “full and complete in and of itself” as required by Code of Civil Procedure section 2030.060. Additionally, it may violate the attorney client and work product privileges. It also calls for premature disclosure of expert information in contravention of Code of Civil Procedure section 2034.010 ef seq. and is not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding those objections, use of the attached photographs in any capacity in this matter is barred by mediation privilege and the contract signed by the County of Orange at the mediation. Responding Party requests that the Di ck so n K o h a n & Ba bl ov e LL P 11 01 D o v e St re et , Su it e 22 0 N e w p o r t B e a c h , C A 9 2 6 6 0 0 uN A N nn B A W \O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 County of Orange comply with both the law and its contractual obligations and not use or reference the attached photographs or any other information learned during mediation. SPECIAL INTERROGATORY NO. 36: IDENTIFY who removed the screws which are depicted laying down on the top of the expansion joint cover in the photographs attached hereto as Exhibits A and B. RESPONSE TO SPECIAL INTERROGATORY NO. 36: Objection. This Interrogatory is not “full and complete in and of itself” as required by Code of Civil Procedure section 2030.060.” Additionally, it may violate the attorney client and work product privileges. It also calls for premature disclosure of expert information in contravention of Code of Civil Procedure section 2034.010 ef seq. and is not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding those objections, use of the attached photographs in any capacity in this matter is barred by mediation privilege and the contract signed by the County of Orange at the mediation. Responding Party requests that the County of Orange comply with both the law and its contractual obligations and not use or reference the attached photographs or any other information learned during mediation. SPECIAL INTERROGATORY NO. 37: Indicate whether anyone working for the COUNTY OF ORANGE or John Wayne Airport gave prior permission for removal of the screws depicted laying on the top of the expansion joint cover in the photographs attached hereto as Exhibits A and B. RESPONSE TO SPECIAL INTERROGATORY NO. 37: Objection. This interrogatory is not reasonably calculated to lead to the discovery of admissible evidence and not “full and complete in and of itself” as required by Code of Civil Procedure section 2030.060.” Additionally, it may violate the attorney client and work product privileges. It also calls for premature disclosure of expert information in contravention of Code of Civil Procedure section 2034.010 ef seq. and is not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding those objections, use of the attached photographs in any capacity in this matter is barred by mediation privilege and the contract signed by the County of Orange at the mediation. Responding Party requests that the County of Orange comply with both Di ck so n K o h a n & Ba bl ov e LL P 1 1 0 1 D o v e St re et , Su it e 22 0 N e w p o r t Be ac h, CA 92 66 0 O O 0 NN O N nn BA W N = N O N N N N N N N N m e m e m e m e m e m e d e d e d C 0 N O N L h A W N = O V N N YY B R A W N = O the law and its contractual obligations and not use or reference the attached photographs or any other information learned during mediation. SPECIAL INTERROGATORY NO. 38: Was the removal of the screws depicted laying on top of the expansion joint cover in the photographs attached hereto as Exhibits A and B reported to any employee of the COUNTY OF ORANGE or John Wayne Airport on the day the condition depicted in the photographs attached hereto as Exhibits A and B was observed? RESPONSE TO SPECIAL INTERROGATORY NO. 38: Objection. This interrogatory is not reasonably calculated to lead to the discovery of admissible evidence and not “full and complete in and of itself” as required by Code of Civil Procedure section 2030.060.” Additionally, it may violate the attorney client and work product privileges. It also calls for premature disclosure of expert information in contravention of Code of Civil Procedure section 2034.010 ef seq. and is not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding those objections, use of the attached photographs in any capacity in this matter is barred by mediation privilege and the contract signed by the County of Orange at the mediation. Responding Party requests that the County of Orange comply with both the law and its contractual obligations and not use or reference the attached photographs or any other information learned during mediation. SPECIAL INTERROGATORY NO. 39: IDENTIFY the date on which the condition depicted by the screws laying on top of the expansion joint cover in the photographs attached hereto as Exhibits A and B was reported by YOU ("YOU" means plaintiff and her employees, agents and attorneys) to any employee of the COUNTY OF ORANGE or John Wayne Airport. RESPONSE TO SPECIAL INTERROGATORY NO. 39: Objection. This Interrogatory is not “full and complete in and of itself.” Additionally, it may violate the attorney client and work product privileges. It also calls for premature disclosure of expert information in contravention of Code of Civil Procedure section 2034.010 ef seq. and is not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding those Di ck so n K o h a n & Ba bl ov e LL P 11 01 Do ve St re et , Su it e 22 0 N e w p o r t B e a c h , C A 9 2 6 6 0 co 3 Oo 10 11 12 Ia 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 objections, use of the attached photographs in any capacity in this matter is barred by mediation privilege and the contract signed by the County of Orange at the mediation. Responding Party requests that the County of Orange comply with both the law and its contractual obligations and not use or reference the attached photographs or any other information learned during mediation. SPECIAL INTERROGATORY NO. 40: IDENTIFY the employee of the COUNTY OF ORANGE or John Wayne Airport to whom the condition of the screws depicted laying on top of the expansion joint cover in the photographs attached hereto as Exhibits A and B was reported, if at all. RESPONSE TO SPECIAL INTERROGATORY NO. 40: Objection. This interrogatory is not reasonably calculated to lead to the discovery of admissible evidence and not “full and complete in and of itself” as required by Code of Civil Procedure section 2030.060.” Additionally, it may violate the attorney client and work product privileges. It also calls for premature disclosure of expert information in contravention of Code of Civil Procedure section 2034.010 ef seq. and is not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding those objections, use of the attached photographs in any capacity in this matter is barred by mediation privilege and the contract signed by the County of Orange at the mediation. Responding Party requests that the County of Orange comply with both the law and its contractual obligations and not use or reference the attached photographs or any other information learned during mediation. SPECIAL INTERROGATORY NO. 41: IDENTIFY all witnesses to the condition of the screws depicted laying on top of the expansion joint cover on the date the photographs attached hereto as Exhibits A and B were taken. RESPONSE TO SPECIAL INTERROGATORY NO. 41: Objection. This Interrogatory is not “full and complete in and of itself.” Additionally, it may violate the attorney client and work product privileges. It also calls for premature disclosure of expert information in contravention of Code of Civil Procedure section 2034.010 ef seg. and is not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding those objections, use of the attached photographs in any capacity in this matter is barred by mediation Di ck so n K o h a n & Ba bl ov e LL P 11 01 Do ve St re et , Su it e 22 0 N e w p o r t Be ac h, CA 92 66 0 O O © ON Oo Un A WwW o N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 privilege and the contract signed by the County of Orange at the mediation. Responding Party requests that the County of Orange comply with both the law and its contractual obligations and not use or reference the attached photographs or any other information learned during mediation. Dated: May 28,2017 DICKSON AN /& BABLOVE LLP - By: / /| cas P. Kohan Matthew P. Dickson Attorneys for Plaintiffs CAROLYN SMITH and GERALD SMITH BN Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DICKSON KOHAN & BABLOVE LLP 1101 DOVE ST., SUITE 220 NEWPORT BCH, CA 92660 (949) 629-4485 PROOF OF SERVICE STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) I am employed in the County of Orange, State of California. I am over the age of 18 years and not a party to the within action; my business address is: 1101 Dove Street, Suite 220 Newport Beach, California 92660. On May 28, 2017, I served the foregoing document(s) described as: PLAINTIFF CAROLYN SMITH’S RESPONSES TO SPECIAL INTERROGATORIES, SET TWO in Case No. 30-2016-00874481-CU-PO-JCJ on the interested party(s) in this action by placing a true copy thereof, enclosed in a sealed envelope with postage thereon fully prepaid, in the United States mail at Newport Beach, California, addressed as follows and/or by one of the methods of service as follows: Garry L. Montanari Wesley S. Wenig Michaelis, Montanari & Johnson, P.C. 4333 Park Terrace Dr. #110 Westlake Village, CA 91361 Attorneys for County of Orange X BY MAIL: I am readily familiar with this firm’s practice of collection and processing of correspondence for mailing with the United States Postal Service, and that the correspondence shall be deposited with the United States Postal Service the same day in the ordinary course of business pursuant to C.C.P. § 1013(a). BY ELECTRONIC MAIL: In addition to service by mail as set forth above, a copy of said document(s) was also delivered by Electronic transmission as a courtesy copy only to the email addresses of record, unless there exists a prior agreement for service via electronic mail. If such an agreement exists, service by electronic mail is deemed complete. BY E-SERVICE: In addition to electronic mail as set forth above also delivered by E-Service to the email address identified as accgpt I declare that the foregoing is true and correct. Executed on May 2 California. copy of said document(s) was le fOr e-service. 201/7/at Newport Beach, - lupe P. i PROOF OF SERVICE EXHIBIT C ples nat le.d LAW OFFICES OF : JAMES I. MICHAELIS MICHAELIS, MONTANARI & JOHNSON JAMES P. JOHNSON GARRY L. MONTANARI A PROFESSIONAL LAW CORPORATION (1938 - 2014) WESLEY S. WENIG CHRISTOPHER W. SCHMIDT 4333 PARK TERRACE DRIVE, SUITE 110 . WESTLAKE VILLAGE, CALIFORNIA 91361 JOHN H. MOON (LOS ANGELES METROPOLITAN AREA) TELEPHONE (818) 865-0444 sender's e-mail: TELEFAX (818) 865-8444 wswenig@mmilaw.net WWW.MMJLAW.NET June 9, 2017 VIA E-MAIL AND F IRST CLASS MAIL Nicholas P. Kohan, Esq. Dickson Kohan & Bablove LLP 1101 Dove Street, Suite 220 Newport Beach, CA 92660 Re: Smith v. County of Orange Case No.: 30-2016-00874481-CU-PO-CJC MEET AND CONFER Dear Mr. Kohan: We are in receipt of the Responses of Plaintiff, Carolyn Smith, to Special Interro plerie (Set No. Two), which were served on May 28, 2017 and received on June 1, 2017. We hereby request that you advise whether you will provide further responses to Special Interrogatories (Set No. Two), as detailed below, by June 16, 2017. Should a motion to compel further responses be required, please be advised that we may also seek to continue the trial. It is our position that full and complete responses to these requests (and the subsequent requests to which responses are due next week) need to be assessed before a motion for summary judgment can be finalized. If we are prevented from obtaining full and complete responses from this set of interrogatories, and the other pending sets of written discovery, we believe we have no choice but to seek to continue the trial so a duly noticed motion for summary judgment can be heard after full assessment of complete responses. SPECIAL INTERROGATORY NO. 34: State the date and time the photographs attached as Exhibits A and B were taken. LAW OFFICES OF MICHAELIS, MONTANARI & JOHNSON RESPONSE TO SPECIAL INTERROGATORY NO. 34: Objection. This Interrogatory is not “full and complete in and of itself” as required by Code of Civil Procedure section 2030.060. Additionally, it may violate the attorney client and work product privileges. It also calls for premature disclosure of expert information in contravention of Code of Civil Procedure section 2034.010 ef seq. and is not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding these objections, use of the attached photographs in any capacity in this matter is barred by the mediation privilege and the contract signed by the County of Orange at the mediation. Responding Party requests that the County of Orange comply with both the law and its contractual obligations and not use or reference the attached photographs or any other information learned during mediation. COMMENT ON RESPONSE TO SPECIAL INTERROGATORY NO. 34: The response provided is inadequate for the following reasons. First, Special Interrogatory No. 34 is “full and complete in and of itself.” Code of Civil Procedure section 2030.060, subdivision (d), provides that “[e]ach interrogatory shall be full and complete in and of itself. No preface or instruction shall be included with a set of interrogatories unless it has been approved under Chapter 17 (commencing with Section 2033.710).” (Code Civ. Proc., § 2030.060, subd. (d).) Special Interrogatory No. 34 contains no preface or instruction. Second, Special Interrogatory No. 34 does not call for or contemplate violation of attorney- client privilege or work product protection. Special Interrogatory No. 34 seeks the date and time when the two attached photographs were taken. This is factual information. It is unclear how such factual information would violate attorney-client privilege. Indeed, asthe Court of Appeal has made clear, “the existence of a document containing privileged information is not privileged. Interrogatories may be used to discover the existence of documents in the other party’s possession. If an interrogatory asks the responding party to identify a document, an adequate response must include a description of the document.” (Hernandez v. Superior Court (2003) 112 Cal. App.4th 285, 293 (citations omitted).) Additionally, such information is not entitled to work product protection, nor has that objection been substantiated. Furthermore, plaintiffs waived any confidentiality as to the photographs when they provided evidence of the content of the photographs in paragraph 6 of the Martin Declaration in Support of Plaintiffs’ Motion for Sanctions. Third, Special Interrogatory No. 34 does not call for the disclosure, premature or otherwise, of expert information. Special Interrogatory No. 34 seeks the date and time when the two attached photographs were taken. Such information does not implicate expert information. LAW OFFICES OF MICHAELIS, MONTANARI & JOHNSON Furthermore, the Supreme Court of California has held that “even if it be conceded that the question does call for an opinion and conclusion, that fact, of itself, is not a proper objection to an interrogatory. Such objection may be proper when the answer is intended to have probative value, but it may not be utilized on discovery as a means of preventing a party from obtaining information that will lead him to probative facts.” (West Pico Furniture Co. of Los Angeles v. Superior Court (1961) 56 Cal.2d 407, 417 (citation omitted).) It should also be noted that plaintiffs waived any confidentiality as to the photographs when they provided evidence of the content of the photographs in paragraph 6 of the Martin Declaration in Support of Plaintiffs’ Motion for Sanctions. Fourth, Special Interrogatory No. 34 is clearly reasonably calculated to lead to the discovery of admissible evidence. The Court of Appeal has held that “, . . in order to be discoverable, the information sought must meet a two-pronged test. It must be (1) relevant to the subject matter involved in the pending action and (2) either admissible in evidence or reasonably calculated to lead to the discovery of admissible evidence.” (Norton v. Superior Court (1994) 24 Cal. App.4th 1750, 1755.) As to the first prong, “[r]elevancy to the subject matter of the litigation is a much broader concept than relevancy to the precise issues presented by the pleadings.” (/d., at 1760.) Further, the Court of Appeal has held that “[i]nterrogatories relevant to the subject matter are permissible including questions which might possibly lead to the discovery of admissible evidence or information which would be helpful in preparing for the trial of a particular case.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 781.) The photographs at issue in Special Interrogatory No. 34 are of the precise area where Mrs. Smith alleges that she fell. Therefore, the photographs are of central relevance to the subject matter of her lawsuit. The date and time when the photographs were taken is similarly relevant. As to the second prong, “. . . California courts have been broad-minded in determining whether discovery is reasonably calculated to lead to admissible evidence. As a practical matter, it is difficult to define at the discovery stage what evidence will be relevant at trial. Therefore, the party seeking discovery is entitled to substantial leeway. Furthermore, California’s liberal approach to permissible discovery generally has led courts to resolve any doubt in favor of permitting discovery.” (Id., at 1761.) Thus, a Court is likely to take a dim view of the contention that the date and time when the photographs were taken are somehow not reasonably calculated to lead to admissible evidence. Fifth, your contention that the photographs at issue are protected by the mediation privilege is inaccurate. LAW OFFICES OF MICHAELIS, MONTANARI & JOHNSON California Evidence code section 1119, subdivision (b), provides that “[n]o writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.” (Cal. Evid. Code § 1119, subd. (b).) A photograph is considered to be a “writing” under Evidence Code section 250. (See: Rojas v. Superior Court (2004) 33 Cal.4th 407, 416.) California Evidence Code section 1120, subdivision (a), provides that “[e]vidence otherwise admissible or subject to discovery outside of a mediation or a mediation consultation shall not be or become inadmissible or protected from disclosure solely by reason of its introduction or use in a mediation or a mediation consultation.” (Cal. Evid. Code § 1120.) California Evidence Code section 1120“... limits the scope of § 1119, thereby preventing litigants from using mediation as a pretext to shield materials from disclosure.” (Gonzales v. T-Mobile, USA, Inc., 2014 U.S. Dist. LEXIS 113099, at ¥18 (S.D. Cal. 2014).) In Rojas the Supreme Court of California held that “. . . under section 1120, a party cannot secure protection for a writing-including a photograph, a witness statement, or an analysis of a test sample-that was not ‘prepared for the purpose of, in the course of, or pursuant to, a mediation’ (§ 1119; subd. (b)) simply by using or introducing it in a mediation or even including it as part of a writing . . . that was ‘prepared for the purpose of, in the course of, or pursuant to, a mediation.’ (Ibid.)” (Rojas, supra, 33 Cal.4that417.) Indeed, “[e]ven under Evidence Code section 1119, which exempts mediation proceedings from being admitted into evidence or discovered, the use of a writing in amediation does not preclude that document from being admitted or produced in discovery unless it was specifically prepared for use in the mediation.” (Volkswagen of America, Inc. v. Superior Court (2006) 139 Cal. App.4th 1481, 1496.) Here, Exhibits A and B are photographs that are evidentiary in nature, which are not confidential just because they were used in a mediation. Indeed, plaintiffs’ response .to Form Interrogatory No. 12.4 and paragraph 6 of the Martin Declaration in Support of Plaintiffs’ Motion for Sanctions makes clear that these photographs were not taken for the purpose of the mediation, but substantially predate that mediation, having been taken on March 22,2016, April 1, 2016, or July 9, 2016. Consequently, the protection of Evidence Code section 1119 does not apply. Finally, it should also be noted that any claim of confidentiality was waived when plaintiffs provided evidence of the content of the photographs in paragraph 6 of the Martin Declaration. Therefore, you are respectfully requested to provide a further response to Special Interrogatory No. 34, without spurious objections, by June 16, 2017. : SPECIAL INTERROGATORY NO. 35: IDENTIFY (“IDENTIFY” means state a person’s name, business address, business telephone number, residence address, residence telephone number, occupation and relationship of each to the responding party) who took the photographs attached hereto as Exhibits A and B. LAW OFFICES OF MICHAELIS, MONTANARI & JOHNSON RESPONSE TO SPECIAL INTERROGATORY NO. 35: Objection. This Interrogatory is not “full and complete in and of itself” as required by Code of Civil Procedure section 2030.060. Additionally, it may violate the attorney client and work product privileges. It also calls for premature disclosure of expert information in contravention of . Code of Civil Procedure section 2034.010 ef seq. and is not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding these objections, use of the attached photographs in any capacity in this matter is barred by the mediation privilege and the contract signed by the County of Orange at the mediation. Responding Party requests that the County of Orange comply with both the law and its contractual obligations and not use or reference the attached photographs or any other information learned during mediation. COMMENT ON RESPONSE TO SPECIAL INTERROGATORY NO. 35: The response provided is inadequate for the following reasons. First, Special Interrogatory No. 35 is “full and complete in and of itself.” Code of Civil Procedure section 2030.060, subdivision (d), provides that “[e]ach interrogatory shall be full and complete in and of itself. No preface or instruction shall be included with a set of interrogatories unless it has been approved under Chapter 17 (commencing with Section 2033.710).” (Code Civ. Proc., § 2030.060, subd. (d).) Special Interrogatory No. 35 contains no preface or instruction. Second, Special Interrogatory No. 35 does not call for or contemplate violation of attorney- client privilege or work product protection. Special Interrogatory No. 35 seeks the identity of a photographer. This is factual information. It is unclear how such factual information would violate attorney-client privilege. Indeed, as the Court of Appeal has made clear, “the existence of a document containing privileged information is not privileged. Interrogatories may be used to discover the existence of documents in the other party’s possession. If an interrogatory asks the responding party to identify a document, an adequate response must include a description of the document.” (Hernandez, ‘supra, 112 Cal.App.4th at 293 (citations omitted).) Additionally, such information is not entitled to work product protection, nor has that objection been substantiated. Furthermore, plaintiffs waived any confidentiality as to the photographs when they provided evidence of the content of the photographs in paragraph 6 of the Martin Declaration in Support of Plaintiffs’ Motion for Sanctions. ) Third, Special Interrogatory No. 35 does not call for the disclosure, premature or otherwise, of expert information. Special Interrogatory No. 35 seeks the identity of a photographer. Such information does not implicate expert information. Furthermore, the Supreme Court of California has held that “even if it be conceded that the question does call for an opinion and conclusion, that fact, of itself, is not a proper objection to an interrogatory. Such objection may be proper when the answer is intended to have probative value, but it may not be utilized on discovery as a means of preventing a party from obtaining information that will lead him to probative facts.” (West Pico Furniture Co. of Los Angeles, supra, 56 Cal.2d at 417.) LAW OFFICES OF MICHAELIS, MONTANARI & JOHNSON It should also be noted that plaintiffs waived any confidentiality as to the photographs when they provided evidence of the content of the photographs in paragraph 6 of the Martin Declaration in Support of Plaintiffs” Motion for Sanctions. Fourth, Special Interrogatory No. 35 is clearly reasonably calculated to lead to the discovery of admissible evidence. The Court of Appeal has held that “. . . in order to be discoverable, the information sought must meet a two-pronged test. It must be (1) relevant to the subject matter involved in the pending action and (2) either admissible in evidence or reasonably calculated to lead to the discovery of admissible evidence.” (Norton, supra, 24 Cal. App.4th at 1755.) As to the first prong, “[r]elevancy to the subject matter of the litigation is a much broader concept than relevancy to the precise issues presented by the pleadings.” (/d., at 1760.) Further, the Court of Appeal has held that “[i]nterrogatories relevant to the subject matter are permissible including questions which might possibly lead to the discovery of admissible evidence or information which would be helpful in preparing for the trial of a particular case.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 781.) The photographs at issue in Special Interrogatory No. 35 are of the precise area where Mrs. Smith alleges that she fell. Therefore, the photographs are of central relevance to the subject matter of her lawsuit, The identity of the photographer is similarly relevant. As to the second prong, ¢. . . California courts have been broad-minded in determining whether discovery is reasonably calculated to lead to admissible evidence. As a practical matter, it is difficult to define at the discovery stage what evidence will be relevant at trial. Therefore, the party seeking discovery is entitled to substantial leeway. Furthermore, California’s liberal approach to permissible discovery generally has led courts to resolve any doubt in favor of permitting discovery.” (/d., at 1761.) Thus, a Court is likely to take a dim view of the contention that the photographer’s identity is somehow not reasonably calculated to lead to admissible evidence. Fifth, your contention that the photographs at issue are protected by the mediation privilege is inaccurate. California Evidence code section 1119, subdivision (b), provides that “[nJo writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.” (Cal. Evid. Code § 1119, subd. (b).) A photograph is considered to be a “writing” under Evidence Code section 250. (See: Rojas, supra, 33 Cal.4th at 416.) California Evidence Code section 1120, subdivision (a), provides that “[e]vidence otherwise admissible or subject to discovery outside of a mediation or a mediation consultation shall not be or become inadmissible or protected from disclosure solely by reason of its introduction or use in a mediation ora mediation consultation.” (Cal. Evid. Code § 1120.) California Evidence Code section LAW OFFICES OF MICHAELIS, MONTANARI & JOHNSON 1120“... limits the scope of § 1119, thereby preventing litigants from using mediation as a pretext to shield materials from disclosure.” (Gonzales, supra, 2014 U.S. Dist. LEXIS 113099, at *18.) In Rojas the Supreme Court of California held that “. . . under section 1120, a party cannot secure protection for a writing-including a photograph, a witness statement, or an analysis of a test sample-that was not ‘prepared for the purpose of, in the course of, or pursuant to, a mediation” (§ 1119, subd. (b)) simply by using or introducing it in a mediation or even including it as part of a writing . . . that was ‘prepared for the purpose of, in the course of, or pursuant to, a mediation.’ (Ibid.)” (Rojas, supra, 33 Cal.4that417.) Indeed, “[e]ven under Evidence Code section 1119, which exempts mediation proceedings from being admitted into evidence or discovered, the use ofa writing in amediation does not preclude that document from being admitted or produced in discovery unless it was specifically prepared for use in the mediation.” (Volkswagen of America, Inc., supra, 139 Cal.App.4th at 1496.) Here, Exhibits A and B are photographs that are evidentiary in nature, which are not confidential just because they were used in a mediation. Indeed, plaintiffs’ response to Form Interrogatory No. 12.4 and paragraph 6 of the Martin Declaration in Support of Plaintiffs’ Motion for Sanctions makes clear that these photographs were not taken for the purpose of the mediation, but substantially predate that mediation, having been taken on March 22,2016, April 1,2016, or July 9,2016. Consequently, the protection of Evidence Code section 1119 does not apply. Finally, it should also be noted that any claim of confidentiality was waived when plaintiffs provided evidence of the content of the photographs in paragraph 6 of the Martin Declaration. Therefore, you are respectfully requested to provide a further response to Special Interrogatory No. 35, without spurious objections, by June 16, 2017. SPECIAL INTERROGATORY NO. 36: IDENTIFY who removed the screws which are depicted laying down on the top of the expansion joint cover in the photographs attached hereto as Exhibits A and B. RESPONSE TO SPECIAL INTERROGATORY NO. 36: : Objection. This Interrogatory is not “full and complete in and of itself” as required by Code of Civil Procedure section 2030.060. Additionally, it may violate the attorney client and work product privileges. It also calls for premature disclosure of expert information in contravention of Code of Civil Procedure section 2034.010 ef seq. and is not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding these objections, use of the attached photographs in any capacity in this matter is barred by the mediation privilege and the contract signed by the County of Orange at the mediation. Responding Party requests that the County of Orange comply with both the law and its contractual obligations and not use or reference the attached photographs or any other information learned during mediation. COMMENT ON RESPONSE TO SPECIAL INTERROGATORY NO. 36: The response provided is inadequate for the following reasons. LAW OFFICES OF MICHAELIS, MONTANARI & JOHNSON First, Special Interrogatory No. 36 is “full and complete in and of itself.” Code of Civil Procedure section 2030.060, subdivision (d), provides that “[e]ach interrogatory shall be full and complete in and of itself. No preface or instruction shall be included with a set of interrogatories unless it has been approved under Chapter 17 (commencing with Section 2033.710).” (Code Civ. Proc., § 2030.060, subd. (d).) Special Interrogatory No. 36 contains no preface or instruction. Second, Special Interrogatory No. 36 does not call for or contemplate violation of attorney- client privilege or work product protection. Special Interrogatory No. 36 seeks the identity of an individual. This is factual information. It is unclear how such factual information would violate attorney-client privilege. Indeed, as the Court of Appeal has made clear, “the existence of a document containing privileged information is not privileged. Interrogatories may be used to discover the existence of documents in the other party’s possession. If an interrogatory asks the responding party to identify a document, an adequate response must include a description of the document.” (Hernandez, supra, 112 Cal.App.4th at 293 (citations omitted).) Additionally, such information is not entitled to work product protection, nor has that objection been substantiated. Furthermore, plaintiffs waived any confidentiality as to the photographs when they provided evidence of the content of the photographs in paragraph 6 of the Martin Declaration in Support of Plaintiffs” Motion for Sanctions. Third, Special Interrogatory No. 36 does not call for the disclosure, premature or otherwise, of expert information. Special Interrogatory No. 36 seeks the identity of an individual. Such information does not implicate expert information. Furthermore, the Supreme Court of California has held that “even if it be conceded that the question does call for an opinion and conclusion, that fact, of itself, is not a proper objection to an interrogatory. Such objection may be proper when the answer is intended to have probative value, but it may not be utilized on discovery as a means of preventing a party from obtaining information that will lead him to probative facts.” (West Pico Furniture Co. of Los Angeles, supra, 56 Cal.2d at417.) It should also be noted that plaintiffs waived any confidentiality as to the photographs when they provided evidence of the content of the photographs in paragraph 6 of the Martin Declaration in Support of Plaintiffs’ Motion for Sanctions. Fourth, Special Interrogatory No. 36 is clearly reasonably calculated to lead to the discovery of admissible evidence. The Court of Appeal has held that “. . . in order to be discoverable, the information sought must meet a two-pronged test. It must be (1) relevant to the subject matter involved in the pending action and (2) either admissible in evidence or reasonably calculated to lead to the discovery of admissible evidence.” (Norton, supra, 24 Cal. App.4th at 1755.) LAW OFFICES OF MICHAELIS, MONTANARI & JOHNSON As to the first prong, “[r]elevancy to the subject matter of the litigation is a much broader concept than relevancy to the precise issues presented by the pleadings.” (/d., at 1760.) Further, the Court of Appeal has held that “[i]nterrogatories relevant to the subject matter are permissible including questions which might possibly lead to the discovery of admissible evidence or information which would be helpful in preparing for the trial of a particular case.” (Deyo v. Kilbourne (1978) 84 Cal. App.3d 771, 781.) The photographs at issue in Special Interrogatory No. 36 are of the precise area where Mrs. Smith alleges that she fell. Therefore, the photographs are of central relevance to the subject matter of her lawsuit. The identity of the person who removed the screws is similarly relevant. As to the second prong, “. . . California courts have been broad-minded in determining whether discovery is reasonably calculated to lead to admissible evidence. As a practical matter, it is difficult to define at the discovery stage what evidence will be relevant at trial. Therefore, the party seeking discovery is entitled to substantial leeway. Furthermore, California’s liberal approach to permissible discovery generally has led courts to resolve any doubt in favor of permitting discovery.” (Id., at 1761.) Thus, a Court is likely to take a dim view of the contention that this individual’s identity is somehow not reasonably calculated to lead to admissible evidence. Fifth, your contention that the photographs at issue are protected by the mediation privilege is inaccurate. California Evidence code section 1119, subdivision (b), provides that “[n]o writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other “noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.” (Cal. Evid. Code § 1119, subd. (b).) A photograph is considered to be a “writing” under Evidence Code section 250. (See: Rojas, supra, 33 Cal.4th at 416.) California Evidence Code section 1120, subdivision (a), provides that “[e]vidence otherwise admissible or subject to discovery outside of a mediation or a mediation consultation shall not be or become inadmissible or protected from disclosure solely by reason of its introduction or use in a mediation or a mediation consultation.” (Cal. Evid. Code § 1120.) California Evidence Code section 1120“. . . limits the scope of § 1119, thereby preventing litigants from using mediation as a pretext to shield materials from disclosure.” (Gonzales, supra, 2014 U.S. Dist. LEXIS 113099, at *18.) In Rojas the Supreme Court of California held that “, . . under section 1120, a party cannot secure protection for a writing-including a photograph, a witness statement, or an analysis of a test sample-that was not ‘prepared for the purpose of, in the course of, or pursuant to, a mediation’ (§ 1119, subd. (b)) simply by using or introducing it in a mediation or even including it as part of a writing . . . that was “prepared for the purpose of, in the course of, or pursuant to, a mediation.’ (Ibid.)” (Rojas, supra, 33 Cal. 4that417.) Indeed, “[e]ven under Evidence Code section 1119, which exempts mediation proceedings from being admitted into evidence or discovered, the use of awriting - LAW OFFICES OF MICHAELIS, MONTANARI & JOHNSON ‘in a mediation does not preclude that document from being admitted or produced in discovery unless it was specifically prepared for use in the mediation.” (Volkswagen of America, Inc., supra, 139 Cal. App.4th at 1496.) Here, Exhibits A and B are photographs that are evidentiary in nature, which are not confidential just because they were used in a mediation. Indeed, plaintiffs’ response to Form Interrogatory No. 12.4 and paragraph 6 of the Martin Declaration in Support of Plaintiffs’ Motion for Sanctions makes clear that these photographs were not taken for the purpose of the mediation, but substantially predate that mediation, having been taken on March 22, 2016, April 1,2016, or July 9,2016. Consequently, the protection of Evidence Code section 1119 does not apply. Finally, it should also be noted that any claim of confidentiality was waived when plaintiffs provided evidence of the content of the photographs in paragraph 6 of the Martin Declaration. Therefore, you are respectfully requested to provide a further response to Special Interrogatory No. 36, without spurious objections, by June 16, 2017. SPECIAL INTERROGATORY NO. 37: Indicate whether anyone working for the COUNTY OF ORANGE or John Wayne Airport gave prior permission for removal of the screws depicted laying on top of the expansion joint cover in the photographs attached hereto as Exhibits A and B. RESPONSE TO SPECIAL INTERROGATORY NO. 37: Objection. This interrogatory is not reasonably calculated to the discovery of admissible evidence and not “full and complete in and of itself” as required by Code of Civil Procedure section 2030.060.” [sic] Additionally, it may violate the attorney client and work product privileges. It also calls for premature disclosure of expert information in contravention of Code of Civil Procedure section 2034.010 ef seq. and is not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding those objections, use of the attached photographs in any capacity in this matter is barred by mediation privilege and the contract signed by the County of Orange at the mediation. Responding Party requests that the County of Orange comply with both the law and its contractual obligations and not use or reference the attached photographs or any other information learned during mediation. COMMENT ON RESPONSE TO SPECIAL INTERROGATORY NO. 37: The response provided is inadequate for the reasons detailed below. Essentially, Special Interrogatory No. 37 is a “yes or no” question. Your refusal to answer is unwarranted and your .objections are not well taken. First, Special Interrogatory No. 37 is quite clearly calculated to lead to the discovery of, admissible evidence. The Court of Appeal has held that “. . . in order to be discoverable, the information sought must meet a two-pronged test. It must be (1) relevant to the subject matter involved in the pending action and (2) either admissible in evidence or reasonably calculated to lead to the discovery of admissible evidence.” (Norton, supra, 24 Cal. App.4th at 1755.) 10 LAW OFFICES OF MICHAELIS, MONTANARI & JOHNSON As to the first prong, “[r]elevancy to the subject matter of the litigation is a much broader concept than relevancy to the precise issues presented by the pleadings.” (/d., at 1760.) Further, the Court of Appeal has held that “[i]nterrogatories relevant to the subject matter are permissible including questions which might possibly lead to the discovery of admissible evidence or information which would be helpful in preparing for the trial of a particular case.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 781.) The photographs at issue in Special Interrogatory No. 37 are of the precise area where Mrs. Smith alleges that she fell. Therefore, the photographs are of central relevance to the subject matter of her lawsuit. The identity of the individual described in Special Interrogatory No. 37 is similarly relevant. As to the second prong, “. . . California courts have been broad-minded in determining whether discovery is reasonably calculated to lead to admissible evidence. As a practical matter, it is difficult to define at the discovery stage what evidence will be relevant at trial. Therefore, the party seeking discovery is entitled to substantial leeway. Furthermore, California’s liberal approach to permissible discovery generally has led courts to resolve any doubt in favor of permitting discovery.” (Id., at 1761.) Thus, a Court is likely to take a dim view of the contention that the photographer’s identity is somehow not reasonably calculated to lead to admissible evidence. Second, Special Interrogatory No. 37 is “full and complete in and of itself”. Code of Civil Procedure section 2030.060, subdivision (d), provides that “[e]ach interrogatory shall be full and complete in and of itself. No preface or instruction shall be included with a set of interrogatories unless it has been approved under Chapter 17 (commencing with Section 2033.710).” (Code Civ. Proc., § 2030.060, subd. (d).) Special Interrogatory No. 37 contains no preface or instruction. Third, Special Interrogatory No. 37 does not violate the attorney-client privilege or work product protection. Special Interrogatory No. 37 seeks factual information. It is unclear how such factual information would violate attorney-client privilege. Indeed, as the Court of Appeal has made clear, “the existence of a document containing privileged information is not privileged. Interrogatories may be used to discover the existence of documents in the other party’s possession. If an interrogatory asks the responding party to identify a document, an adequate response must include a description of the document.” (Hernandez, supra, 112 Cal.App.4th at 293 (citations omitted).) Additionally, such information is not entitled to work product protection, nor has that objection been substantiated. Furthermore, plaintiffs waived any confidentiality as to the photographs when they provided evidence of the content of the photographs in paragraph 6 of the Martin Declaration in Support of Plaintiffs’ Motion for Sanctions. Fourth, Special Interrogatory No. 37 does not call for the disclosure of expert information, let alone the premature disclosure thereof. Special Interrogatory No. 37 seeks factual information that does not implicate expert information. 11 LAW OFFICES OF MICHAELIS, MONTANARI & JOHNSON Furthermore, the Supreme Court of California has held that “even if it be conceded that the question does call for an opinion and conclusion, that fact, of itself, is not a proper objection to an interrogatory. Such objection may be proper when the answer is intended to have probative value, but it may not be utilized on discovery as a means of preventing a party from obtaining information that will lead him to probative facts.” (West Pico Furniture Co. of Los Angeles, supra, 56 Cal.2d at 417.) It should also be noted that plaintiffs waived any confidentiality as to the photographs when they provided evidence of the content of the photographs in paragraph 6 of the Martin Declaration in Support of Plaintiffs’ Motion for Sanctions. Fifth, your contention that the photographs at issue are protected by the mediation privilege is inaccurate. California Evidence code section 1119, subdivision (b), provides that “[n]o writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.” (Cal. Evid. Code § 1119, subd. (b).) A photograph is considered to be a “writing” under Evidence Code section 250. (See: Rojas, supra, 33 Cal.4th at 416.) California Evidence Code section 1120, subdivision (a), provides that “[e]vidence otherwise admissible or subject to discovery outside of a mediation or a mediation consultation shall not be or become inadmissible or protected from disclosure solely by reason of its introduction or use in a mediation or amediation consultation.” (Cal. Evid. Code § 1120.) California Evidence Code section 1120“... limits the scope of § 1119, thereby preventing litigants from using mediation as a pretext to shield materials from disclosure.” (Gonzales, supra, 2014 U.S. Dist. LEXIS 113099, at #18.) In Rojas the Supreme Court of California held that “. . . under section 1120, a party cannot secure protection for a writing-including a photograph, a witness statement, or an analysis of a test sample-that was not ‘prepared for the purpose of, in the course of, or pursuant to, a mediation’ (§ 1119, subd. (b)) simply by using or introducing it in a mediation or even including it as part of a writing . . . that was ‘prepared for the purpose of, in the course of, or pursuant to, a mediation.’ (Ibid.)” (Rojas, supra, 33 Cal.4th at417.) Indeed, “[e]ven under Evidence Code section 1119, which exempts mediation proceedings from being admitted into evidence or discovered, the use of a writing in a mediation does not preclude that document from being admitted or produced in discovery unless it was specifically prepared for use in the mediation.” (Volkswagen of America, Inc., supra, 139 Cal. App.4th at 1496.) Here, Exhibits A and B are photographs that are evidentiary in nature, which are not confidential just because they were used in a mediation. Indeed, plaintiffs’ response to Form Interrogatory No. 12.4 and paragraph 6 of the Martin Declaration in Support of Plaintiffs’ Motion 12 LAW OFFICES OF MICHAELIS, MONTANARI & JOHNSON for Sanctions makes clear that these photographs were not taken for the purpose of the mediation, but substantially predate that mediation, having been taken on March 22,2016, April 1,2016, or July 9,2016. Consequently, the protection of Evidence Code section 1119 does not apply. Finally, it should also be noted that any claim of confidentiality was waived when plaintiffs provided evidence of the content of the photographs in paragraph 6 of the Martin Declaration. Therefore, you are respectfully requested to provide a further response, without unmeritorious objections, to Special Interrogatory No. 37 by June 16, 2017. SPECIAL INTERROGATORY NO. 38: Was the removal of the screws depicted laying on top of the expansion joint cover in the photographs attached hereto as Exhibits A and B reported to any employee of the COUNTY OF ORANGE or John Wayne Airport on the day the condition depicted in the photographs attached hereto as Exhibits A and B was observed? RESPONSE TO SPECIAL INTERROGATORY NO. 38: Objection. This interrogatory is not reasonably calculated to the discovery of admissible evidence and not “full and complete in and of itself” as required by Code of Civil Procedure section 2030.060.” [sic] Additionally, it may violate the attorney client and work product privileges. It also calls for premature disclosure of expert information in contravention of Code of Civil Procedure section 2034.010 ef seq. and is not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding those objections, use of the attached photographs in any capacity in this matter is barred by mediation privilege and the contract signed by the County of Orange at the. mediation. Responding Party requests that the County of Orange comply with both the law and its contractual obligations and not use or reference the attached photographs or any other information learned during mediation. COMMENT ON RESPONSE TO SPECIAL INTERROGATORY NO. 38: The response provided is inadequate for the reasons detailed below. Essentially, Special Interrogatory No. 38 is a “yes or no” question. Your refusal to answer is unwarranted and your objections are not well taken. First, Special Interrogatory No. 38 is quite clearly calculated to lead to the discovery of admissible evidence. The Court of Appeal has held that “, . . in order to be discoverable, the information sought must meet a two-pronged test. It must be (1) relevant to the subject matter involved in the pending action and (2) either admissible in evidence or reasonably calculated to lead to the discovery of admissible evidence.” (Norton, supra, 24 Cal.App.4th at 1755.) As to the first prong, “[r]elevancy to the subject matter of the litigation is a-much broader concept than relevancy to the precise issues presented by the pleadings.” (Id., at 1760.) Further, the Court of Appeal has held that “[i]nterrogatories relevant to the subject matter are permissible including questions which might possibly lead to the discovery of admissible evidence or information which would be helpful in preparing for the trial of a particular case.” (Deyo v. 13 LAW OFFICES OF MICHAELIS, MONTANARI & JOHNSON Kilbourne (1978) 84 Cal.App.3d 771, 781.) The photographs at issue in Special Interrogatory No. 38 are of the precise area where Mrs. Smith alleges that she fell. Therefore, the photographs are of central relevance to the subject matter of her lawsuit. The issue of permission is similarly relevant. As to the second prong, “. . . California courts have been broad-minded in determining whether discovery is reasonably calculated to lead to admissible evidence. As a practical matter, it is difficult to define at the discovery stage what evidence will be relevant at trial. Therefore, the party seeking discovery is entitled to substantial leeway. Furthermore, California’s liberal approach to permissible discovery generally has led courts to resolve any doubt in favor of permitting discovery.” (Id., at 1761.) Thus, a Court is likely to take a dim view of the contention that the issue of permission is somehow not reasonably calculated to lead to admissible evidence. Second, Special Interrogatory No. 38 is “full and complete in and of itself’. Code of Civil Procedure section 2030.060, subdivision (d), provides that “[e]ach interrogatory shall be full and complete in and of itself. No preface or instruction shall be included with a set of interrogatories unless it has been approved under Chapter 17 (commencing with Section 2033.710).” (Code Civ. Proc., § 2030.060, subd. (d).) Special Interrogatory No. 37 contains no preface or instruction. Third, Special Interrogatory No. 38 does not violate the attorney-client privilege or work product protection. Special Interrogatory No. 38 seeks factual information. It is unclear how such factual information would violate attorney-client privilege. Indeed, asthe Court of Appeal has made clear, “the existence of a document containing privileged information is not privileged. Interrogatories may be used to discover the existence of documents in the other party’s possession. If an interrogatory asks the responding party to identify a document, an adequate response must include a description of the document.” (Hernandez, supra, 112 Cal.App.4th at 293 (citations omitted).) Additionally, such information is not entitled to work product protection, nor has that objection been substantiated. Furthermore, plaintiffs waived any confidentiality as to the photographs when they provided evidence of the content of the photographs in paragraph 6 of the Martin Declaration in Support of Plaintiffs’ Motion for Sanctions. Fourth, Special Interrogatory No. 38 does not call for the disclosure of expert information, let alone the premature disclosure thereof. Special Interrogatory No. 38 seeks factual information that does not implicate expert information. Furthermore, the Supreme Court of California has held that “even if it be conceded that the question does call for an opinion and conclusion, that fact, of itself, is not a proper objection to an interrogatory. Such objection may be proper when the answer is intended to have probative value, but it may not be utilized on discovery as a means of preventing a party from obtaining information that will lead him to probative facts.” (West Pico Furniture Co. of Los Angeles, supra, 56 Cal.2d at 417.) 14 LAW OFFICES OF MICHAELIS, MONTANARI & JOHNSON It should also be noted that plaintiffs waived any confidentiality as to the photographs when they provided evidence of the content of the photographs in paragraph 6 of the Martin Declaration in Support of Plaintiffs” Motion for Sanctions. : Fifth, your contention that the photographs at issue are protected by the mediation privilege is inaccurate. California Evidence code section 1119, subdivision (b), provides that “[n]o writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.” (Cal. Evid. Code § 1119, subd. (b).) A photograph is considered to be a “writing” under Evidence Code section 250. (See: Rojas, supra, 33 Cal.4th at 416.) California Evidence Code section 1120, subdivision (a), provides that “[e]vidence otherwise admissible or subject to discovery outside of a mediation or a mediation consultation shall not be or become inadmissible or protected from disclosure solely by reason of its introduction or use in a mediation or a mediation consultation.” (Cal. Evid. Code § 1120.) California Evidence Code section 1120“... limits the scope of § 1119, thereby preventing litigants from using mediation as a pretext to shield materials from disclosure.” (Gonzales, supra, 2014 U.S. Dist. LEXIS 113099, at *18.) In Rojas the Supreme Court of California held that . . . under section 1120, a party cannot secure protection for a writing-including a photograph, a witness statement, or an analysis of a test sample-that was not ‘prepared for the purpose of, in the course of, or pursuant to, a mediation’ (§ 1119, subd. (b)) simply by using or introducing it in a mediation or even including it as part of a writing . . . that was ‘prepared for the purpose of, in the course of, or pursuant to, a mediation.’ (Ibid.)” (Rojas, supra, 33 Cal.4that417.) Indeed, “[e]ven under Evidence Code section 1119, which exempts mediation proceedings from being admitted into evidence or discovered, the use of a writing in amediation does not preclude that document from being admitted or produced in discovery unless it was specifically prepared for use in the mediation.” (Volkswagen of America, Inc., supra, 139 Cal. App.4th at 1496.) Here, Exhibits A and B are photographs that are evidentiary in nature, which are not confidential just because they were used in a mediation. Indeed, plaintiffs’ response to Form Interrogatory No. 12.4 and paragraph 6 of the Martin Declaration in Support of Plaintiffs’ Motion for Sanctions makes clear that these photographs were not taken for the purpose of the mediation, but substantially predate that mediation, having been taken on March 22,2016, April 1,2016, or July 9, 2016. Consequently, the protection of Evidence Code section 1119 does not apply. Finally, it should also be noted that any claim of confidentiality was waived when plaintiffs provided evidence of the content of the photographs in paragraph 6 of the Martin Declaration. 15 LAW OFFICES OF MICHAELIS, MONTANARI & JOHNSON Therefore, you are respectfully requested to provide a further response, without unmeritorious - objections, to Special Interrogatory No. 38 by June 16, 2017. SPECIAL INTERROGATORY NO. 39: IDENTIFY the date on which the condition depicted by the screws laying on top of the expansion joint cover in the photographs attached hereto as Exhibits A and B was reported by YOU (“YOU” means plaintiff and her employees, agents and attorneys) to any employee of the COUNTY OF ORANGE or John Wayne Air port. RESPONSE TO SPECIAL INTERROGATORY NO. 39: Objection. This Interrogatory is not “full and complete in and of itself” as required by Code of Civil Procedure section 2030.060. Additionally, it may violate the attorney client and work product privileges. It also calls for premature disclosure of expert information in contravention of Code of Civil Procedure section 2034.010 ef seq. and is not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding these objections, use of the attached photographs in any capacity in this matter is barred by the mediation privilege and the contract signed by the County of Orange at the mediation. Responding Party requests that the County of Orange comply with both the law and its contractual obligations and not use or reference the attached photographs or any other information learned during mediation. COMMENT ON RESPONSE TO SPECIAL INTERROGATORY NO. 39: The response provided is inadequate for the following reasons. First, Special Interrogatory No. 39 is “full and complete in and of itself.” Code of Civil Procedure section 2030.060, subdivision (d), provides that “[e]ach interrogatory shall be full and complete in and of itself. No preface or instruction shall be included with a set of interrogatories unless it has been approved under Chapter 17 (commencing with Section 2033.710).” (Code Civ. Proc., § 2030.060, subd. (d).) Special Interrogatory No. 39 contains no preface or instruction. Second, Special Interrogatory No. 39 does not call for or contemplate violation of attorney- client privilege or work product protection. Special Interrogatory No. 39 seeks a date. This is factual information. It is unclear how such factual information would violate attorney-client privilege. Indeed, as the Court of Appeal has made clear, “the existence of a document containing privileged information is not privileged. Interrogatories may be used to discover the existence of documents in the other party’s possession. If an interrogatory asks the responding party to identify a document, an adequate response must include a description of the document.” (Hernandez, supra, 112 Cal.App.4th at 293 (citations omitted).) Additionally, such information is not entitled to work product protection, nor has that objection been substantiated. Furthermore, plaintiffs waived any confidentiality as to the photographs when they provided evidence of the content of the photographs in paragraph 6 of the Martin Declaration in Support of Plaintiffs” Motion for Sanctions. 16 LAW OFFICES OF MICHAELIS, MONTANARI & JOHNSON Third, Special Interrogatory No. 39 does not call for the disclosure, premature or otherwise, of expert information. Special Interrogatory No. 39 seeks a date. Such information does not implicate expert information. Furthermore, the Supreme Court of California has held that “even if it be conceded that the question does call for an opinion and conclusion, that fact, of itself, is not a proper objection to an interrogatory. Such objection may be proper when the answer is intended to have probative value, but it may not be utilized on discovery as a means of preventing a party from obtaining information that will lead him to probative facts.” (West Pico Furniture Co. of Los Angeles, supra, 56 Cal.2d at 417.) It should also be noted that plaintiffs waived any confidentiality as to the photographs when they provided evidence of the content of the photographs in paragraph 6 of the Martin Declaration in Support of Plaintiffs’ Motion for Sanctions. Fourth, Special Interrogatory No. 39 is clearly reasonably calculated tq lead to the discovery of admissible evidence. The Court of Appeal has held that “. . . in order to be discoverable, the information sought must meet a two-pronged test. It must be (1) relevant to the subject matter involved inthe pending action and (2) either admissible in evidence or reasonably calculated to lead to the discovery of admissible evidence.” (Norton, supra, 24 Cal.App.4th at 1755.) As to the first prong, “[r]elevancy to the subject matter of the litigation is a much broader concept than relevancy to the precise issues presented by the pleadings.” (Id., at 1760.) Further, the Court of Appeal has held that “[i]nterrogatories relevant to the subject matter are permissible including questions which might possibly lead to the discovery of admissible evidence or information which would be helpful in preparing for the trial of a particular case.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 781.) The photographs at issue in Special Interrogatory No. 39 are of the precise area where Mrs. Smith alleges that she fell. Therefore, the photographs are of central relevance to the subject matter of her lawsuit. The information sought in Special Interrogatory No. 39 is similarly relevant. As to the second prong, “. . . California courts have been broad-minded in determining whether discovery is reasonably calculated to lead to admissible evidence. As a practical matter, it is difficult to define at the discovery stage what evidence will be relevant at trial. Therefore, the party seeking discovery is entitled to substantial leeway. Furthermore, California’s liberal approach to permissible discovery generally has led courts to resolve any doubt in favor of permitting discovery.” (Id., at 1761.) Thus, a Court is likely to take a dim view of the contention that the information being sought here is somehow not reasonably calculated to lead to admissible evidence. Fifth, your contention that the photographs at issue are protected by the mediation privilege is inaccurate. 17 LAW OFFICES OF MICHAELIS, MONTANARI & JOHNSON California Evidence code section 1119, subdivision (b), provides that “[n]o writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.” (Cal. Evid. Code § 1119, subd. (b).) A photograph is considered to be a “writing” under Evidence Code section 250. (See: Rojas, supra, 33 Cal.4th at 416.) California Evidence Code section 1120, subdivision (a), provides that “[e]vidence otherwise admissible or subject to discovery outside of a mediation or a mediation consultation shall not be or become inadmissible or protected from disclosure solely by reason of its introduction or use in a mediation or a mediation consultation.” (Cal. Evid. Code § 1120.) California Evidence Code section 1120 “. . . limits the scope of § 1119, thereby preventing litigants from using mediation as a pretext to shield materials from disclosure.” (Gonzales, supra, 2014 U.S. Dist. LEXIS 113099, at *18.) In Rojas the Supreme Court of California held that “. . . under section 1120, a party cannot secure protection for a writing-including a photograph, a witness statement, or an analysis of a test sample-that was not ‘prepared for the purpose of, in the course of, or pursuant to, a mediation’ (§ 1119, subd. (b)) simply by using or introducing it in a mediation or even including it as part of a writing . . . that was ‘prepared for the purpose of, in the course of, or pursuant to, a mediation.’ (Ibid.)” (Rojas, supra, 33 Cal.4that417.) Indeed, “[e]ven under Evidence Code section 1119, which exempts mediation proceedings from being admitted into evidence or discovered, the use of a writing in a mediation does not preclude that document from being admitted or produced in discovery unless it was specifically prepared for use in the mediation.” (Volkswagen of America, Inc., supra, 139 Cal.App.4th at 1496.) Here, Exhibits A and B are photographs that are evidentiary in nature, which are not confidential just because they were used in a mediation. Indeed, plaintiffs’ response to Form Interrogatory No. 12.4 and paragraph 6 of the Martin Declaration in Support of Plaintiffs’ Motion for Sanctions makes clear that these photographs were not taken for the purpose of the mediation, but substantially predate that mediation, having been taken on March 22,2016, April 1,2016, or July 9, 2016. Consequently, the protection of Evidence Code section 1119 does not apply. Finally, it should also be noted that any claim of confidentiality was waived when plaintiffs provided evidence of the content of the photographs in paragraph 6 of the Martin Declaration. Therefore, you are respectfully requested to provide a further response to Special Interrogatory No. 39, without spurious objections, by June 16, 2017. SPECIAL INTERROGATORY NO. 40: IDENTIFY the employee of the COUNTY-OF ORANGE or John Wayne Airport to whom the condition of the screws depicted laying on top of the expansion joint cover in the photographs attached hereto as Exhibits A and B was reported, if at all. 18 LAW OFFICES OF MICHAELIS, MONTANARI & JOHNSON RESPONSE TO SPECIAL INTERROGATORY NO. 40: Objection. * This interrogatory is not reasonably calculated to the discovery of admissible evidence and not “full and complete in and of itself” as required by Code-of Civil Procedure section 2030.060.” [sic] Additionally, it may violate the attorney client and work product privileges. It also calls for premature disclosure of expert information in contravention of Code of Civil Procedure section 2034.010 ef seq. and is not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding those objections, use of the attached photographs in any capacity in this matter is barred by mediation privilege and the contract signed by the County of Orange at the mediation. Responding Party requests that the County of Orange comply with both the law and its contractual obligations and not use or reference the attached photographs or any other information learned during mediation. COMMENT ON RESPONSE TO SPECIAL INTERROGATORY NO. 40: The response provided is inadequate for the reasons detailed below. First, Special Interrogatory No. 40 is quite clearly calculated to lead to the discovery of admissible evidence. The Court of Appeal has held that “. . . in order to be discoverable, the information sought must meet a two-pronged test. It must be (1) relevant to the subject matter involved in the pending action and (2) either admissible in evidence or reasonably calculated to lead to the discovery of admissible evidence.” (Norton, supra, 24 Cal.App.4th at 1755.) As to the first prong, “[r]elevancy to the subject matter of the litigation is a much broader concept than relevancy to the precise issues presented by the pleadings.” (Id., at 1760.) Further, the Court of Appeal has held that “[i|nterrogatories relevant to the subject matter are permissible including questions which might possibly lead to the discovery of admissible evidence or information which would be helpful in preparing for the trial of a particular case.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 781.) The photographs at issue in Special Interrogatory No. 40 are of the precise area where Mrs, Smith alleges that she fell. Therefore, the photographs are of central relevance to the subject matter of her lawsuit, as is the information sought in Special Interrogatory No. 40. As to the second prong, “. . . California courts have been broad-minded in determining whether discovery is reasonably calculated to lead to admissible evidence. As a practical matter, it is difficult to define at the discovery stage what evidence will be relevant at trial. Therefore, the party seeking discovery is entitled to substantial leeway. Furthermore, California’s liberal approach to permissible discovery generally has led courts to resolve any doubt in favor of permitting discovery.” (Id., at 1761.) Thus, a Court is likely to take a dim view of the contention that the information being sought is somehow not reasonably calculated to lead to admissible evidence. Second, Special Interrogatory No. 40 is “full and complete in and of itself”. Code of Civil Procedure section 2030.060, subdivision (d), provides that “[e]ach interrogatory shall be full and complete in and of itself. No preface or instruction shall be included with a set of interrogatories 19 LAW OFFICES OF MICHAELIS, MONTANARI & JOHNSON unless it has been approved under Chapter 17 (commencing with Section 2033.710).” (Code Civ. Proc., § 2030.060, subd. (d).) Special Interrogatory No. 40 contains no preface or instruction. Third, Special Interrogatory No. 40 does not violate the attorney-client privilege or work product protection. Special Interrogatory No. 40 seeks the identity of an individual. Such information is akin to the identity of witnesses, which is discoverable information. “Central to the discovery process is the identification of potential witnesses.” (Puerto v. Superior Court (2008) 158 Cal. App.4th 1242, 1249.) Furthermore, “when responding to discovery, counsel generally has a duty to disclose additional information known to counsel, such as the names of witnesses. . . .” (Regency Health Services, Inc. v. Superior Court (1998) 64 Cal. App.4th 1496, 1504.) Therefore, the information sought in Special Interrogatory No. 36 is not privileged, put it is discoverable. Additionally, such information is not entitled to work product protection, nor has that objection been substantiated. Furthermore, plaintiffs waived any confidentiality as to the photographs when they provided evidence of the content of the photographs in paragraph 6 of the Martin Declaration in Support of Plaintiffs’ Motion for Sanctions. Fourth, Special Interrogatory No. 40 does not call for the disclosure of expert information, let alone the premature disclosure thereof. Special Interrogatory No. 40 seeks the identity of an individual. Such information does not implicate expert information. Furthermore, the Supreme Court of California has held that “even if it be conceded that the question does call for an opinion and conclusion, that fact, of itself, is not a proper objection to an interrogatory. Such objection may be proper when the answer is intended to have probative value, but it may not be utilized on discovery as a means of preventing a party from obtaining information that will lead him to probative facts.” (West Pico Furniture Co. of Los Angeles, supra, 56 Cal.2d at 417.) It should also be noted that plaintiffs waived any confidentiality as to the photographs when they provided evidence of the content of the photographs in paragraph 6 of the Martin Declaration in Support of Plaintiffs’ Motion for Sanctions. Fifth, your contention that the photographs at issue are protected by the mediation privilege is inaccurate. California Evidence code section 1119, subdivision (b), provides that “[n]o writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.” (Cal. Evid. Code § 1119, subd. (b).) A photograph is considered to be a “writing” under Evidence Code section 250. (See: Rojas, supra, 33 Cal.4th at 416.) 20 LAW OFFICES OF MICHAELIS, MONTANARI & JOHNSON California Evidence Code section 1120, subdivision (a), provides that “[e]vidence otherwise admissible or subject to discovery outside of a mediation or a mediation consultation shall not be or become inadmissible or protected from disclosure solely by reason of its introduction or use in a mediation or a mediation consultation.” (Cal. Evid. Code § 1120.) California Evidence Code section 1120“, . . limits the scope of § 1119, thereby preventing litigants from using mediation as a pretext to shield materials from disclosure.” (Gonzales, supra, 2014 U.S. Dist. LEXIS 113099, at *18.) In Rojas the Supreme Court of California held that “. . . under section 1120, a party cannot secure protection for a writing-including a photograph, a witness statement, or an analysis of a test sample-that was not ‘prepared for the purpose of, in the course of, or pursuant to, a mediation’ (§ 1119, subd. (b)) simply by using or introducing it in a mediation or even including it as part of a writing . . . that was ‘prepared for the purpose of, in the course of, or pursuant to, a mediation.’ (Ibid.)” (Rojas, supra, 33 Cal.4that417.) Indeed, “[e]ven under Evidence Code section 1119, which exempts mediation proceedings from being admitted into evidence or discovered, the use of a writing in a mediation does not preclude that document from being admitted or produced in discovery unless it was specifically prepared for use in the mediation.” (Volkswagen of America, Inc., supra, 139 Cal.App.4th at 1496.) Here, Exhibits A and B are photographs that are evidentiary in nature, which are not confidential just because they were used in a mediation. Indeed, plaintiffs’ response to Form * Interrogatory No. 12.4 and paragraph 6 of the Martin Declaration in Support of Plaintiffs’ Motion for Sanctions makes clear that these photographs were not taken for the purpose of the mediation, but substantially predate that mediation, having been taken on March 22,2016, April 1,2016, or July 9,2016. Consequently, the protection of Evidence Code section 1119 does not apply. Finally, it should also be noted that any claim of confidentiality was waived when plaintiffs provided evidence of the content of the photographs in paragraph 6 of the Martin Declaration. Therefore, you are respectfully requested to provide a further response, without unmeritorious objections, to Special Interrogatory No. 40 by June 16, 2017. : ‘SPECIAL INTERROGATORY NO. 41: IDENTIFY all witnesses to the condition of the screws depicted laying on top of the expansion joint cover on the date the photographs attached hereto as Exhibits A and B were taken. RESPONSE TO SPECIAL INTERROGATORY NO. 41: Objection. This Interrogatory is not “full and complete in and of itself” as required by Code of Civil Procedure section 2030.060. Additionally, it may violate the attorney client and work product privileges. It also calls for premature disclosure of expert information in contravention of Code of Civil Procedure section 2034.010 ef seq. and is not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding these objections, use of the attached photographs in any capacity in this matter is barred by the mediation privilege and the contract signed by the County of Orange at the mediation. ‘Responding Party requests that the County of Orange comply 21 LAW OFFICES OF MICHAELIS, MONTANARI & JOHNSON with both the law and its contractual obligations and not use or reference the attached photographs or any other information learned during mediation. COMMENT ON RESPONSE TO SPECIAL INTERROGATORY NO. 41: The response provided is inadequate for the following reasons. First, Special Interrogatory No. 41 is “full and complete in and of itself.” Code of Civil Procedure section 2030.060, subdivision (d), provides that “[e]ach interrogatory shall be full and complete in and of itself. No preface or instruction shall be included with a set of interrogatories unless it has been approved under Chapter 17 (commencing with Section 2033.710).” (Code Civ. Proc., § 2030.060, subd. (d).) Special Interrogatory No. 41 contains no preface or instruction. Second, Special Interrogatory No. 41 does not call for or contemplate violation of attorney- client privilege or work product protection. Special Interrogatory No. 36 seeks discoverable information - the identity of witnesses. “Central to the discovery process is the identification of potential witnesses.” (Puerto, supra, 158 Cal. App.4th at 1249.) Furthermore, “when responding to discovery, counsel generally has a duty to disclose additional information known to counsel, such as the names of witnesses. . . .” (Regency Health Services, Inc., supra, 64 Cal.App.4th at 1504. Therefore, the information sought in Special Interrogatory No. 41 is not privileged, put it is discoverable. Additionally, such information is not entitled to work product protection, nor has that objection been substantiated. Furthermore, plaintiffs waived any confidentiality as to the photographs when they provided evidence of the content of the photographs in paragraph 6 of the Martin Declaration in Support of Plaintiffs’ Motion for Sanctions. Third, Special Interrogatory No. 41 does not call for the disclosure, premature or otherwise, of expert information. Special Interrogatory No. 41 seeks the identity of witnesses. Such information does not implicate expert information. Furthermore, the Supreme Court of California has held that “even if it be conceded that the question does call for an opinion and conclusion, that fact, of itself, is not a proper objection to an interrogatory. Such objection may be proper when the answer is intended to have probative value, but it may not be utilized on discovery as a means of preventing a party from obtaining information that will lead him to probative facts.” (West Pico Furniture Co. of Los Angeles, supra, 56 Cal.2d at 417.) It should also be noted that plaintiffs waived any confidentiality as to the photographs when they provided evidence of the content of the photographs in paragraph 6 of the Martin Declaration in Support of Plaintiffs’ Motion for Sanctions. 22 LAW OFFICES OF MICHAELIS, MONTANARI & JOHNSON Fourth, Special Interrogatory No. 41 is clearly reasonably calculated to lead to the discovery of admissible evidence. The Court of Appeal has held that «. . . in order to be discoverable, the information sought must meet a two-pronged test. It must be (1) relevant to the subject matter involved in the pending action and (2) either admissible in evidence or reasonably calculated to lead to the discovery of admissible evidence.” (Norton, supra, 24 Cal.App.4th at 1755.) As to the first prong, “[r]elevancy to the subject matter of the litigation is a much broader concept than relevancy to the precise issues presented by the pleadings.” (/d., at 1760.) Further, the Court of Appeal has held that “[i]nterrogatories relevant to the subject matter are permissible including questions which might possibly lead to the discovery of admissible evidence or information which would be helpful in preparing for the trial of a particular case.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 781.) The photographs at issue in Special Interrogatory No. 41 are of the precise area where Mrs. Smith alleges that she fell. Therefore, the photographs are of central relevance to the subject matter of her lawsuit. The identity of witnesses is similarly relevant. As to the second prong, “. . . California courts have been broad-minded in determining whether discovery is reasonably calculated to lead to admissible evidence. As a practical matter, it is difficult to define at the discovery stage what evidence will be relevant at trial. Therefore, the party seeking discovery is entitled to substantial leeway. Furthermore, California’s liberal approach to permissible discovery generally has led courts to resolve any doubt in favor of permitting discovery.” (Id., at 1761.) Thus, a Court is likely to take a dim view of the contention that the identity of witnesses is somehow not reasonably calculated to lead to admissible evidence. Fifth, your contention that the photographs at issue are protected by the mediation privilege is inaccurate. California Evidence code section 1119, subdivision (b), provides that “[n]o writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.” (Cal. Evid. Code § 1119, subd. (b).) A photograph is considered to be a “writing” under Evidence Code section 250. (See: Rojas, supra, 33 Cal.4th at 416.) California Evidence Code section 1120, subdivision (a), provides that “[e]vidence otherwise admissible or subject to discovery outside of a mediation or a mediation consultation shall not be or become inadmissible or protected from disclosure solely by reason of its introduction or use in a mediation or a mediation consultation.” (Cal. Evid. Code § 1120.) California Evidence Code section 1120“... limits the scope of § 1119, thereby preventing litigants from using mediation as a pretext to shield materials from disclosure.” (Gonzales, supra, 2014 U.S. Dist. LEXIS 113099, at #18.) 23 LAW OFFICES OF MICHAELIS, MONTANARI & JOHNSON In Rojas the Supreme Court of California held that “. . . under section 1120, a party cannot secure protection for a writing-including a photograph, a witness statement, or an analysis of a test sample-that was not ‘prepared for the purpose of, in the course of, or pursuant to, a mediation” (§ 1119, subd. (b)) simply by using or introducing it in a mediation or even including it as part of a writing . . . that was ‘prepared for the purpose of, in the course of, or pursuant to, a mediation.’ (Ibid.)” (Rojas, supra, 33 Cal.4that417.) Indeed, “[e]ven under Evidence Code section 1119, which exempts mediation proceedings from being admitted into evidence or discovered, the use of a writing in amediation does not preclude that document from being admitted or produced in discovery unless it was specifically prepared for use in the mediation.” (Volkswagen of America, Inc., supra, 139 Cal.App.4th at 1496.) Here, Exhibits A and B are photographs that are evidentiary in nature, which are not confidential just because they were used in a mediation. Indeed, plaintiffs’ response to Form Interrogatory No. 12.4 and paragraph 6 of the Martin Declaration in Support of Plaintiffs’ Motion for Sanctions makes clear that these photographs were not taken for the purpose of the mediation, but substantially predate that mediation, having been taken on March 22,2016, April 1, 2016, or July 9,2016. Consequently, the protection of Evidence Code section 1119 does not apply. Finally, it should also be noted that any claim of confidentiality was waived when plaintiffs provided evidence of the content of the photographs in paragraph 6 of the Martin Declaration. Therefore, you are respectfully requested to provide a further response to Special Interrogatory No. 41, without spurious objections, by June 16, 2017. Very truly yours, MICHAELIS, MONTANARI & JOHNSON ‘ N Wesley S. Wenig ) WSW:bh 0:\16522\Itr\I-pltf.atty. 16. meet.confer.srogs2. wpd 24 EXHIBIT D From: Nick Kohan Fax: (949) 535-1449 To: Fax: (818) 865-8444 Page 2 of 5 06/16/2017 3:22 PM d kb Dick Nicholas P. Kohan ickson nkohan@dkblawyers.com Kohan & Bablove LLP 949.535.1341 June 16, 2017 VIA FASCIMILIE Wesley S. Wenig Michaelis, Montanari & Johnson 4333 Park Terrace Drive, Suite 110 Westlake Village, California 91381 - 818-865-8444 RE: Smith v. County of Orange Our Client: Carolyn Smith Our File No.: 2200-005 ‘Your File No.: 3205-16522 Dear Mr. Wenig: We are in receipt of your June 9, 2017 correspondence regarding Ms. Smith’s responses to Special Interrogatories, Set Two. Preliminarily, these Interrogatories, along with the subsequent requests identified in your letter only deal with purported conduct after the incident. We are, therefore, at a loss as to how these requests have any relationship to the County of Orange’s Motion for Summary Judgment or the trial date let alone any relevant issue in this matter. If you “believe,” however, that sufficient grounds exist to continue a trial that was already deemed “preferential,” please note that we will vehemently oppose any attempts to continue the trial. In addition, your use of photographs obtained during mediation violates both the mediation privilege and the express contract signed by you and your clients at mediation. Your reliance-on Evidence Code section 1120(a) is misplaced. These photographs were taken by our expert and should not have been produced until expert discovery commences pursuant to Code of Civil Procedure section 2034.010, if at all. In other words, the only reason you have these photographs is because of mediation. The photographs are also protected under the work product privilege unless they are produced in context with the deposition of an expert. Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.3d 626, 647-648. It violates Evidence Code section 1120 to attempt to use these photographs for any other purpose. We strongly urge you to reconsider your position regarding these photographs. 1101 Dove Street, Suite 220 Newport Beach, CA 92660 844.404.2400 (toll free) 949.535.1449 (facsimile) From: Nick Kohan Fax: (949) 535-1449 To: Fax: (818) 865-8444 Page 3 of 5 06/16/2017 3:22 PM dd kb oh Gamer on sea nkohan@dkblawyers.com Kohan & Bablove LLP 949.535.1341 Special Interrogatory No. 34. We agree to provide a supplemental response to this Interrogatory. However, we note that you already have this information as it was included in Ms. Smith’s Motion for Sanctions. Special Interrogatory No. 35: Providing a substantive response to this Interrogatory would require disclosure of a consultant/expert hired by counsel. As such, identifying their name and contact information, as requested by the Interrogatory, would constitute a premature disclosure of the identity of an expert in violation of Code of Civil Procedure section 2034.010 et seq. Furthermore, the identity of the expert also violates the attorney work product doctrine as their identity would reveal their specialty/area of expertise. The selection of that type of expert falls squarely within work product protection as it reflects the thoughts, strategy, etc. of counsel. Williamson v. Sup.Ct. (Shell Oil Co.) (1978) 21 Cal.3d 829, 834; Fireman's Fund Ins. Co. v. Sup.Ct. (Front Gate Plaza, LLC) (2011) 186 Cal.App.4th 1263, 1281-1282. If you have specific authority indicating otherwise, please provide it. Otherwise, we intend on standing on our objections as your letter provides no analysis other than stating that these objections do not apply. Special Interrogatory No. 36: Preliminarily, we reference our continued objection to your use of these photographs as the only reason you have them was because they were provided to you in Plaintiffs’ mediation brief. Notwithstanding, this interrogatory has no relationship to any issue in this matter. Despite California’s liberal approach to discovery, the identity of the person who may have placed the screws in the location as depicted in the photographs on a date after the incident cannot possibly lead to the discovery of any admissible evidence. If you believe otherwise, please provide you reasoning. However, simply contending that because the photographs are of the scene of the incident, you are entitled to know the identity of the person who may have removed the screws is insufficient. Moreover, disclosing the identity of the person also requires disclosing the identity of an expert retained by the Plaintiffs. Code of Civ. Proc. § 2034.260(b)(1). Disclosing that identity not only violates the premature disclosure of experts, but also the work product privilege as it reflects the thoughts, strategy, etc. of counsel. Williamson v. Sup. Ct. (Shell Oil Co.) (1978) 21 Cal.3d 829, 834; Fireman's Fund Ins. Co. v. Sup.Ct. (Front Gate Plaza, LLC) (2011) 196 Cal.App.4th 1263, 1281-1282. Special Interrogatory Nos. 37-40: Similar to Interrogatory No. 37, we are at a complete loss as to how whether the County of Orange gave prior permission for removal of screws or was told of the condition will in any way lead to the discovery of admissible evidence. Again, your meet and confer letter does not 1101 Dove Street, Suite 220 Newport Beach, CA 92660 844.404.2400 (toll free) 949.535.1449 (facsimile) From: Nick Kohan Fax: (949) 535-1449 To: Fax: (818) 865-8444 Page 4 of 5 06/16/2017 3:22 PM . Nicholas P. Kohan pick | nkohan@dkblawyers.com Bablove LLP 949.535.1341 provide any analysis on this issue. In fact, it appears to be a “cut and paste” from the prior interrogatory as it states, “the identity of the individual described in Special Interrogatory No. 37 is similarly relevant.” We are happy to reconsider our position if you provide some explanation as to how these Interrogatories are reasonable calculated to lead to the discovery of admissible evidence which is more than simply stating it has to do with the metal expansion joint cover. Nevertheless, it is our position that these Interrogatories are not reasonably calculated to lead to the discovery of admissible evidence because the issues of permission to remove the screws, removal reported on the day it was observed, the date it was reported and the identity of the employee it was reported to have no relation in fact or law to any issue in this case. This information has nothing to do with: (1) whether the condition is a dangerous condition or a trivial defect; (2) whether the design of the condition is protected under design immunity; (3) whether a reasonable inspection would have revealed the condition; or (4) whether the condition caused Ms. Smith’s permanent and severe personal injuries. Again, please provide some authority indicating otherwise or, at the very least, some analysis, if you would like us to reconsider our position. Special Interrogatory No. 41: Again, disclosing the identity of the witnesses also requires disclosing the identity of an expert retained by the Plaintiffs. Code of Civ. Proc. § 2034.260(b)(1). Disclosing that identity not only violates the premature disclosure of experts, but also the work product privilege as it reflects the thoughts, strategy, etc. of counsel. Williamson v. Sup.Ct. (Shell Oil Co.) (1978) 21 Cal.3d 829, 834; Fireman's Fund Ins. Co. v. Sup.Ct. (Front Gate Plaza, LLC) (2011) 196 Cal.App.4th 1263, 1281-1282. Additionally, we are at a complete loss as to how this issue is reasonably calculated to lead to the discovery of admissible evidence. Your letter provides no analysis other than stating that because the photographs are of the condition and this Interrogatory discusses the photographs the responsive information is relevant. 1101 Dove Street, Suite 220 Newport Beach, CA 92660 844.404.2400 (toll free) 949.535.1449 (facsimile) From: Nick Kohan Fax: (949) 535-1449 To: Fax: (818) 865-8444 Page 5 of 5 06/16/2017 3:22 PM | Nicholas P. Kohan Pisa nkohan@dkblawyers.com Boh LLP 949.535.1341 As stated above, your letter appears to be boilerplate without any specific analysis into the individual interrogatories at issue. We are happy to reconsider our position with further specific analysis as to why you believe the County is entitled to the responsive information identified in these Interrogatories. Otherwise, Ms. Smith rests on her objections and will further contend that the County did not meet and confer in good faith. | am happy to discuss these issues telephonically so we can work through these issues and invite you to do so before seeking Court intervention. WA) Richalasy. Kohan 1101 Dove Street, Suite 220 Newport Beach, CA 92660 844.404.2400 (toll free) 949.535.1449 (facsimile) EXHIBIT E Wesley S. Wenig From: Nicholas Kohan Sent: Tuesday, June 20, 2017 1:30 PM To: Wesley S. Wenig Cc: Matthew Dickson Subject: Smith v. County of Orange Wes: This will confirm the following agreements we made during our telephonic meet and confer: County’s Responses to Ms. Smith’s RFAs, Set One: The County agreed to amend the responses by replacing the phrase “as phrased” with “As framed, denied” so the responses are consistent with the holding in Smith v. Circle P. Rancho Co. (1978) 87 Cal.App.3d 267, 275, as pointed out in your June 16, 2017 letter. County’s Responses to Ms. Smith's RPDs, Set One: The County has agreed to re-consider its position regarding all of the Requests regarding Terminals B and C. With respect to Request No. 34, Ms. Smith has agreed to limit this Request to the contract documents for the project. With that limitation, the County has agreed to re-consider its position. Ms. Smith's responses to County’s Special Interrogatories, Set Two: The parties were unable to come to a satisfactory agreement regarding this discovery. In the spirit of disclosing information, | am happy to explain to you exactly what happened when the subject photographs were taken. However, you have yet to provide any supporting authority that we must disclose the identity of consultants/experts prior to their designation pursuant to CCP 2034.010 et seq. and provide you with work product. Your contention that attorneys representing the Smiths and their consultant are now percipient witnesses because of a site inspection lacks merit. | maintain my request to provide any supporting authority for this contention. Ms. Smith's responses to County’s Requests for Admission, Set One; Requests for Production, Set Three, and Form Interrogatories, Set Two: While the subject matter of this discovery is identical to Special Interrogatories, Set Two, which we addressed during our call, | requested until the end of the week to review your correspondence on this discovery before you file your Motions. As always, if you have any questions or comments, please do not hesitate to call or write. Regards, Nick Nicholas P. Kohan DICKSON KOHAN & BABLOVE LLP 1101 Dove Street, Suite 220 Newport Beach, CA 92660 949.629.4486 (direct) 949.303.9427 (mobile) 949.535.1449 (fax) PLEASE NOTE OUR NEW OFFICE ADDRESS EXHIBIT F Oo 0 uN ON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DICKSON KOHAN & BABLOVE LLP Nicholas P. Kohan (SBN 257134) nkohan@dkblawyers.com Matthew P. Dickson (SBN 251800) mdickson@dkblawyers.com 1101 Dove Street, Suite 220 Newport Beach, CA 92660 Telephone: 949.535.1341 Facsimile: 949.535.1449 Attorneys for Plaintiffs Carolyn Smith and Gerald Smith SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER CAROLYN SMITH and GERALD SMITH, ) Case No.: 30-2016-00874481-CU-PO-CIC ) Judge: Hon. Mary Fingal Schulte Plaintiffs, ) Dept.: C-21 ) Vs. ) PLAINTIFF CAROLYN SMITH’S ) SUPPLEMENTAL RESPONSE TO COUNTY OF ORANGE; and DOES 1 to 10; ) SPECIAL INTERROGATORIES, SET ) TWO Defendants. ) ) ) ) ) Complaint Filed: September 13, 2016 ) Trial Date: December 11,2017 ) PROPOUNDING PARTY: COUNTY OF ORANGE RESPONDING PARTY: CAROLYN SMITH SET NO: TWO (2) TO ALL PARTIES HEREIN AND THEIR COUNSEL OF RECORD: Pursuant to Code of Civil Procedure section 2030.010 et seq., Plaintiff CAROLYN SMITH, (“Responding Party”), hereby objects and responds to Defendant COUNTY OF ORANGE’s (“Propounding Party”) Special Interrogatories, Set Two as follows: Di ck so n K o h a n & Ba bl ov e LL P 11 01 Do ve St re et , Su it e 22 0 N e w p o r t B e a c h , C A 9 2 6 6 0 Oo 0 NN A nn lA W N DN DN DN N N O N N N N N N O N e m mt o e m p m p d e d p d p d pe d pe d °K NN A nh A W N = O D N RD N W N R=, PRELIMINARY STATEMENT These responses are made solely for the purpose of this action. Each response is subject to all appropriate objections, including competency, relevancy, materiality, propriety and admissibility, which would require the exclusion of any response set forth herein if the question were asked of, or any response were made by, a witness present and testifying in court. Additionally, each response is subject to all objections listed in the responses to the interrogatories, which shall be incorporated herein by reference. All such objections are reserved and may be interposed at the time of trial. This Responding Party has not completed its investigation of the facts relating to this action, has not yet completed its discovery in this action, and has not yet completed preparation for trial. Consequently, the following responses are given without prejudice to this Party’s right to allege and/or produce evidence of any subsequently-discovered facts or circumstances. Except for facts explicitly admitted herein, no admission of any nature is to be implied or inferred. The fact that any interrogatory herein has been answered should not be taken as an admission, or a confusion of the existence of any facts set forth or assumed by such interrogatory or that such response constitutes any fact thus set forth or assumed. All responses are given on the basis of a good faith effort to locate the requested information. This Party relies on well-established California authority to the effect that interrogatories cannot be unilaterally designated as continuing in nature, and serves notice that we will not voluntarily provide further responses to these interrogatories if additional information is acquired by us after these responses are served. Notwithstanding the above, this Responding Party reserves the right to change any and all responses herein as additional facts and further information is obtained, new analyses are made, and legal research is completed. The information contained herein is given in a good faith effort to supply as much factual material as is presently known by Responding Party, but should in no way prejudice this Responding Party’s right to make new contentions or provide additional facts or additional information derived from ffir discovery, investigation, research and/or legal analysis. This preliminary statement shall apply to each and every response given herein, and shall be Di ck so n K o h a n & Ba bl ov e LL P 11 01 Do ve St re et , Su it e 22 0 N e w p o r t Be ac h, CA 92 66 0 LC 0 uN Oo nn BA W O N RN O N N N N N N N N = e m e t md e m e d em e d p d e d c o 9 O N n n B A L I N = O V O N N N N T R A W L W N = E S incorporated by reference as though fully set forth in all of the interrogatory responses appearing on the following pages. RESPONSES TO SPECIAL INTERROGATORIES, SET TWO SPECIAL INTERROGATORY NO. 34: State the date and time the photographs attached as Exhibits A and B were taken. RESPONSE TO SPECIAL INTERROGATORY NO. 34: Objection. This Interrogatory is not “full and complete in and of itself” as required by Code of Civil Procedure section 2030.060. Additionally, it may violate the attorney client and work product privileges. It also calls for premature disclosure of expert information in contravention of Code of Civil Procedure section 2034.010 ef seq. and is not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding those objections, use of the attached photographs in any capacity in this matter is barred by mediation privilege and the contract signed by the County of Orange at the mediation. Responding Party requests that the County of Orange comply with both the law and its contractual obligations and not use or reference the attached photographs or any other information learned during mediation. SUPPLEMENTAL RESPONSE TO SPECIAL INTERROGATORY NO. 34: Objection. This Interrogatory is not “full and complete in and of itself” as required by Code of Civil Procedure section 2030.060. Additionally, it may violate the attorney client and work product privileges. It also calls for premature disclosure of expert information in contravention of Code of Civil Procedure section 2034.010 ef seq. and is not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding those objections, use of the attached photographs in any capacity in this matter is barred by mediation privilege and the contract signed by the County of Orange at the mediation. Responding Party requests that the County of Orange comply with both the law and its contractual obligations and not use or reference the attached photographs or any other information learned during mediation. Without waiving and subject to said objections, Responding Party responds as follows: April 11,2016 Di ck so n K o h a n & Ba bl ov e LL P 1 1 0 1 D o v e St re et , Su it e 22 0 N e w p o r t Be ac h, CA 92 66 0 wn Rs W N OO 0 NN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 Dated: June 30, 2017 DICKSON KOHANX & BABLOVE LLP / \ - ichoblas Pl Kohan tthew P{ Dickson Attorneys tor Plaintiffs CAROLYN SMITH and GERALD SMITH - By: No Oo 0 9 O&O wn pA Ww 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DICKSON KOHAN & BABLOVE LLP 1101 DOVE ST,, SUITE 220 NEWPORT BCH, CA 92660 (949) 629-4485 PROOF OF SERVICE STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) I am employed in the County of Orange, State of California. I am over the age of 18 years and not a party to the within action; my business address is: 1101 Dove Street, Suite 220 Newport Beach, California 92660. On June 30, 2017, 1 served the foregoing document(s) described as: PLAINTIFF’S SUPPLEMENTAL RESPONSES TO SPECIAL INTERROGATORIES, SET TWO in Case No. 30-2016-00874481-CU-PO-JCIJ on the interested party(s) in this action by placing a true copy thereof, enclosed in a sealed envelope with postage thereon fully prepaid, in the United States mail at Newport Beach, California, addressed as follows and/or by one of the methods of service as follows: Garry L. Montanari Wesley S. Wenig Michaelis, Montanari & Johnson, P.C. 4333 Park Terrace Dr. #110 Westlake Village, CA 91361 Attorneys for County of Orange X BY MAIL: I am readily familiar with this firm’s practice of collection and processing of correspondence for mailing with the United States Postal Service, and that the correspondence shall be deposited with the United States Postal Service the same day in the ordinary course of business pursuant to C.C.P. § 1013(a). BY ELECTRONIC MAIL: In addition to service by mail as set forth above, a copy of said document(s) was also delivered by Electronic transmission as a courtesy copy only to the email addresses of record, unless there exists a prior agreement for service via electronic mail. If such an agreement exists, service by electronic mail is deemed complete. BY E-SERVICE: In addition to electronic mail as set forth above, a copy of said document(s) was also delivered by E-Service to the email address identified as acceptable for e-service. I declare that the foregoing is true and correct. Executed on Jiiye 30, 20117 at Newport Beach, California. bo AY) Nichal ohan PROOF OF SERVICE 10 11 1.2 13 14 15 16 17 18 19 20 27. 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) I am employed in the County of Los Angeles, State of California. 1am over the age of 18 and not a party to the within action; my business address is 4333 Park Terrace Dr. #110, Westlake Village, CA 91361. On July 20, 2017, I served the foregoing document described as NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES (SET NO. TWO); REQUEST FOR MONETARY SANCTIONS; DECLARATION OF WESLEY S. WENIG IN SUPPORT THEREOF on the interested parties in this action by placing a true copy thereof in a sealed envelope with postage thereon fully prepaid in the United States mail at Westlake Village, California, addressed as follows: Nicholas P. Kohan, Esq. Attorneys for plaintiffs Dickson Kohan & Bablove LLP 1101 Dove St. #220 Newport Beach, CA 92660 tel: (949) 535-1341; fax: (949) 535-1449 [X] (MAIL) I deposited such envelope in the mail at Westlake Village, California. The envelope was mailed with postage thereon fully prepaid. Iam “readily familiar” with firm’s practice of collection and processing correspondence for mailing. It is deposited with U.S. postal service on that same day in the ordinary course of business. Iam aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than 1 day after date of deposit for mailing in affidavit. [] (FEDERAL EXPRESS) I deposited such envelope addressed to the parties at the Federal Express office located at Westlake Village, California. The envelopes were mailed fully prepaid. lam “readily familiar” with firm’s practice of collection and processing correspondence for mailing with Federal Express. Itis deposited with the Westlake Village Federal Express service on that same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if cancellation date is more than 1 day after date of deposit for overnight mailing in affidavit. [] (BY PERSONAL SERVICE) I caused such envelope to be delivered by hand to the offices of the addressees listed below. [ declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on July 20, 2017, at Westlake Village, California. 27 / iF HL A , Capo Alor fog 2 Barbara Haussnann, CCLS
