James Huey vs. Michael CardozaOppositionCal. Super. - 4th Dist.July 20, 2017A I T K E N 4 A I T K E N ¢ C O H N 3 M A C A R T H U R P L A C E , SU IT E 80 0 Oo 0 Nu O N Wn BA W N - = e m e d e d e m p m (= ) N V , TE SN E US E S = ) 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 92 70 7 N N No No N N N =m =m AN Wn ~~ Ww p = O O No ~ 79 €9 PRINTED ON RECYCLED PAPER ATTICUS N. WEGMAN, ESQ. (SBN 273496) AITKEN 4 AITKEN 4 COHN 3 MACARTHUR PLACE, SUITE 800 ELECTRONICALLY FILED Superior Court of California, P.0. BOX 2555 ! SANTA ANA, CA 92707-2555 County of Orange (714) 434-1424/(714) 434-3600 FAX 0412/2018 at 03:14:00 Pd Clerk of the Superior Court By & Clerk, Deputy Clerk Attorneys for Plaintiffs JAMES HUEY and KATHY HARBUuUK SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE, CENTRAL DIVISION CASE NO: 30-2017-00932914 [Hon. Walter P. Schwarm, Dept. C19] James Huey, an individual; Kathy Harbour, an individual; Plaintiffs, OPPOSITION TO DEFENDANTS’ vs. MOTION TO COMPEL PLAINTIFF JAMES HUEY’S FURTHER MICHAEL CARDOZA, an individual; EXCEL RESPONSES TO FORM INTERROGATORIES, SET ONE, AND REQUEST FOR SANCTIONS; DECLARATION OF ATTICUS N. WEGMAN IN SUPPORT THEREOF INCORPORATED, a business entity, form unknown; and DOES 1 to 50, inclusive; Defendants. Date: May 1,2018 Time: 1:30 p.m. Dept.: C19 RESERVATION NO. 72762357 Complaint Filed: July 20, 2017 Trial Date: July 20, 2018 N r ’ N r Na r’ N ar ’ Na r’ Na r’ a r ’ a r ar ’ N a r ar ’ a a r a Na a a N a a a Na a a a TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: IL. INTRODUCTION This matter arises out of a tragic tractor-trailer vehicle crash. Plaintiff James Huey was 1 OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL PLAINTIFF JAMES HUEY’S FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE, AND REQUEST FOR SANCTIONS; DECLARATION OF ATTICUS N. WEGMAN IN SUPPORT THEROF A I T K E N ¢ A I T K E N 4¢ C O H N 3 M A C A R T H U R P L A C E , SU IT E 80 0 OO 0 9 O N wn A W N = - e d e t p m e d e d pe A A Wn B R A W N = O 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 92 70 7 ND N N N N N NN = -_ AN Wn H W N = O O 0 No ~ 7Q €9 PRINTED ON RECYCLED PAPER operating his electric battery powered Nissan Leaf on August 24, 2016 on the 405 Freeway near Costa Mesa, CA when a tractor-trailer being operated by Defendant Michael Cardoza for co- Defendant company Exel dba DHL Shipping, crossed into his lane with great force causing multiple impacts before Plaintiff’s vehicle came to rest. The accident sequence caused Plaintiff’s vehicle to careen over multiple lanes of traffic before colliding with the median concrete barrier. v Plaintiffs (Kathy Harbour is the wife of James Huey and also presents a claim for lost consortium) filed this action against Defendants on July 20, 2107 and discovery quickly commenced. Defendants and Plaintiffs met and conferred multiple times and Plaintiff worked diligently to amend its answers to appease Defendants. Not only have Plaintiffs amended their responses multiple times, Defendant also subpoenaed and received all records related to Plaintiff’s employment history and medical history. Still, Defendants are in intent on wasting this Court’s time. It would certainly appear that this is no more than a billing exercise on a simple clear liability case with significant damages. Further support for this is the fact that the Defendants have been less than responsive to Plaintiffs’ request for discovery. Unlike Plaintiffs, Defendant has declined to amend any of its responses. Unfortunately, Plaintiffs are now forced to bring their motion which will be before the Court in May to address Defendants’ lack of responses to discovery requests. 2 OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL PLAINTIFF JAMES HUEY’S FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE, AND REQUEST FOR SANCTIONS; DECLARATION OF ATTICUS N. WEGMAN IN SUPPORT THEROF A I T K E N ¢ A I T K E N 4 C O H N 3 M A C A R T H U R P L A C E , SU IT E 80 0 OO 0 NN O N wn RA W N - e d e d e m e d A A Ln B R A W N = O 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 92 70 7 Do NO ] N N N N N = = = AN Wn A WL W ND = O O [N S] 3 79 £9 PRINTED ON RECYCLED PAPER IL. DEFENDANTS ARE USING THIS PROCESS TO BILL UNNECESSARILY To date, Plaintiffs hve not objected to any of the nearly 20 subpoenas that Defendant has served to retrieve Plaintiff James Huey’s medical history and employment history! These subpoenas have been executed and the pertinent documents have been produced by third parties. Plaintiffs did not object to Defendants’ subpoena for Plaintiff James Huey’s confidential psychiatric records. Not only did Plaintiffs not object, Plaintiff James Huey actually helped secure these records for Defendants when the treating physician requested an authorization from Mr. Huey. Plaintiffs went the extra mile even after Defense counsel was overtly rude towards Plaintiff James Huey’s treating psychiatrist. (Defense counsel responded with a letter threatening to throw my client’s treating physician in jail and disparaged him for trying to practice law! See Letter from Defendant's counsel to Douglas Khan, M.D. as Exhibit A.) To further ensure Plaintiffs are acting in good faith, Plaintiffs have amended, for the second time, many of their responses related to Defendants’ trivial objections. There are still, however, several discovery request that have been propounded on Plaintiff James Huey that are improper and not in line with precedential case law and statutory law, which will be addressed below. III. PLAINTIFF JAMES HUEY HAS PROVIDED AMENDED RESPONSES TO FORM INTERROGATORIES NOS. 2.6 AND 8.4 In regard to these interrogatories, Defendants continue to request even more specificity albeit the same information could have been gathered by a quick read of the documents received by Defendants by way of subpoena or the taking of Plaintiff's deposition. The information that Plaintiff further provided by amendment pertained to Form Interrogatories Nos. 2.6 and 8.4. Attached as Exhibit B, please find further amendments to Form Interrogatories Nos. 2.6 and 8.4. IV. DEFENDANT FAILS TO UNDERSTAND CODE OF CIVIL PROCEDURE SECTION 2030.230 AS IT GOVERNS FORM INTERROGATORIES 6.2, 6.4, 6.5, 6.7, Code of Civil Procedure section 2030.230 states in pertinent part: 3 OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL PLAINTIFF JAMES HUEY’S FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE, AND REQUEST FOR SANCTIONS; DECLARATION OF ATTICUS N. WEGMAN IN SUPPORT THEROF A I T K E N ¢ A I T K E N 4¢ C O H N 3 M A C A R T H U R P L A C E , SU IT E 80 0 O O 0 3 OO Un BA W N = -_ = p m e d e d p d A N nn BA W N = O 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 92 70 7 \® ) No N o N o N o N o N o - - -_ - AN Wn SN Ww No - = Oo o o J No ~ 7Q €9 PRINTED ON RECYCLED PAPER “If the answer to an interrogatory would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making it would be substantially the same for the party propounding the interrogatory as for the responding party, it is a sufficient answer to that interrogatory to refer to this section and to specify the writings from which the answer may be derived or ascertained.” Further, if the interrogatory seeks information contained in files and records, the responding party is under a duty to provide “complete and straightforward” answers. (Citation omitted). However, if the answer would necessitate making a compilation or summary of information contained in such records, the responding has the option to allow the interrogating party to inspect and copy the records in question. In effect, the responding party may shift the burden of compiling the information to the interrogating party. See Code of Civil Procedure section 2030.230 and Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 784. Not only has Plaintiffs exercised their option to allow Defendants the inspection of document that would require an undue burdensome amount of time to compile, but Plaintiffs have actually gone one step further and produced the responsive documents in response to Defendants’ request for documents, which include all of the medical and employment records and all other records Plaintiffs have in their possession, custody or control. See attached Plaintiff] James Huey’s Response to Document Request as Exhibit C. Even more, Plaintiffs have not objected to Defendants’ subpoenas for this same information. As such, Defendants should have the information they need twice! This is another reason, Plaintiffs believe, Defendants are improperly filing the instant motion for billing purposes. It should be noted that in ruling on the instant motion, the Court must rule on each objection separately. It is an abuse of discretion to fully grant a motion to compel if any of the objections were valid. See Deaile v. General Telephone Co. Of Calif: (1974) 40 Cal.App.3d 841, 851. 111 111 4 OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL PLAINTIFF JAMES HUEY’S FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE, AND REQUEST FOR SANCTIONS; DECLARATION OF ATTICUS N. WEGMAN IN SUPPORT THEROF A I T K E N 4 A I T K E N ¢ C O H N 3 M A C A R T H U R P L A C E , SU IT E 80 0 OO 0 9 O N Un A W N -_- = e m e d pe d e d p m A A Wn A W N = O 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 92 70 7 N N N N N N N = -_ - AN Wn Ww ND = O O No ~ 7 £9 PRINTED ON RECYCLED PAPER V. PLAINTIFF RESPONDED PROPERLY TO FORM INTERROGATORY 12.4 Defendants are asking the Court to compel the Plaintiff to answer something that he has already answered. Defendants are upset that Plaintiff does not know the answer to when or who took said pictures. The failure to know the answer to an interrogatory is not a proper basis for a motion to compel. Plaintiff has answered as in a complete and straightforward manner as the information reasonable permits. See Code of Civil Procedure section 2030.220. Further, all photographs that are identified in response to this interrogatory have also already been produced in response to Requests for Production. VI. PLAINTIFFS REQUESTS SANCTIONS BECAUSE OF DEFENDANTS’ FAILURE TO DEMONSTRATE SUBSTANTIAL JUSTIFICATION FOR THE INSTANT MOTION As it can be easily gleaned from the above, Defendants’ instant motion is nothing more than a billing exercise. As such, Plaintiffs request the Court impose sanctions in the amount of $1,600 on Defendant Exel and its attorney Johnathon Herzog, jointly and severally. Plaintiffs’ counsel’s hourly rate is $400 per hour and 3 hours were spent on this motion plus another anticipated hour to travel and argue this motion in Court. Declaration of Atticus N. Wegman. Sanctions are authorized and shall be imposed against a party, person, or attorney that unsuccessfully makes a motion to compel. See Code of Civil Procedure section 2023.030(a). Independent of the above, sanctions should also be awarded based on Defendant and its attorney, Johnathon Herzog’s, misuse of the discovery process. Pursuant to Code of Civil Procedure section 2023.010, “Misuses of the discovery process include, but are not limited to, the following: (a) Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery. (b) Using a discovery method in a manner that does not comply with its specified procedures. (c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. 5 OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL PLAINTIFF JAMES HUEY’S FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE, AND REQUEST FOR SANCTIONS; DECLARATION OF ATTICUS N. WEGMAN IN SUPPORT THEROF A I T K E N 4 A I T K E N 4 C O H N 3 M A C A R T H U R P L A C E , SU IT E 80 0 O O 0 3 O N Un A W N - = e d pe d e d pe A A nn A W N = O 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 92 70 7 N N N N N N NN = -_ AN Wn B A W ND = O O 0 No = 7 €9 PRINTED ON RECYCLED PAPER (h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery. Certainly, the Court should find that either (a), (b), (c), or (h), if not all of them, have been violated by Defendant Exel dba DHL Shipping and its attorney Johnathon Herzog. VII. CONCLUSION Plaintiff respectfully requests that this Court deny Defendant’s motion in its entirety and award Plaintiff sanctions in the amount of $1,600 against Defendant Exel and its attorney Johnathon Herzog, jointly and severally. Dated: April 11,2018 AITKEN 4 AITKEN 4+ COHN eC Y ATTIOUS NEGMAN, ESQ. Attorneys for Plaintiffs JAMES HUEY and KATHY HARBOUR 6 OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL PLAINTIFF JAMES HUEY’S FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE, AND REQUEST FOR SANCTIONS; DECLARATION OF ATTICUS N. WEGMAN IN SUPPORT THEROF A I T K E N 4+ A I T K E N 4 C O H N 3 M A C A R T H U R P L A C E , SU IT E 80 0 NO 0 uN O N Wn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A AN A, CA 92 70 7 <9 PRINTED ON RECYCLED PAPER PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; my business address is 3 MacArthur Place, Suite 800, Santa Ana, California, 92707. On April 12, 2018 I served the foregoing documents described as OPPOSITION TO) DEFENDANTS’ MOTION TO COMPEL PLAINTIFF JAMES HUEY’S RESPONSES] TO FORM INTERROGATORIES, SET ONE, AND REQUEST FOR SANCTIONS on the] parties herein in this action by placing ( ) the original (x) a true copy thereof in a sealed envelope addressed as indicated on the attached service list. (X) BY MAIL (X) As follows: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Santa Ana, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date oF postage meter date is more than one day after date of deposit for mailing an affidavit. ( ) By Personal Service: I caused the above-referenced the document(s) to be delivered by hand to the attached addressees. (X ) By Overnight Courier: I caused the above-referenced document(s) to be delivered to an overnight courier service for delivery to the above address(es). ( ) By Facsimile Machine: I caused the above-referenced document(s) to be transmitted to the above-named persons at the following telephone number(s) see attached Proof of Service list. () By Email Transmission: I caused the above-referenced document(s) to be transmitted to the persons listed in the attached Proof of Service lists. Executed on April 12, 2018 at Santa Ana, California. (X) (State) I declare under penalty of perjury under the laws of the State of California that t above is true and correct. 5 ~ Kristin McCarthy ( 1 PROOF OF SERVICE A I T K E N 4 A I T K E N 4 C O H N 3 M A C A R T H U R P L A C E , SU IT E 80 0 O O 0 3 OO Un A W O N - e t e m e d e d p d A N Ln B R A W N = O 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 92 70 7 N N N N N N N N = =m = N O Wn A W ND = O O No oo €9 PRINTED ON RECYCLED PAPER HUEY, et al. v. CARDOZA, et al. SERVICE LIST Jonathon J. Herzog, Esq. WESTON HERZOG LLP 550 North Brand Blvd., Suite 1990 Glendale, CA 91203 (818) 755-8555 (818) 755-8542-fax iherzog@westzog.com Attorneys for Defendants 2 PROOF OF SERVICE