Motion_to_compel_answers_to_interrogatories

Motion

Cal. Super. - 4th Dist.January 9, 2019

© 0 9 O N nn Bs W N = NN N N N N N N N ND = m m e m e e e e e k e m CO I O N Wn BA W I N D = O O O N N R A W = O Vladi Khiterer (Bar No. 177007) Khiterer, Inc. 2901 W. Coast Hwy., Suite 200 Newport Beach, CA 92663 (949) 63 1-6161 vladi@khiterer.com Attorneys for Plaintiff SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER AIDA YUSUPOVA, Plaintiff, VS. JOSEPH D. KOWAL and DOES 1 through 10, inclusive, Defendants. Case No. 30-2019-01043210-CU- OE-CIC Assigned to the Hon. David A. Hofter, Judge, Dept. C42 NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES SET TWO, FOR MONETARY SANCTIONS IN THE SUM OF $1,332.50 AGAINST DEFENDANT JOSEPH D. KOWAL AND HIS ATTORNEY OF RECORD JEFFREY S. BENICE; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF VLADI KHITERER Date: 04/13/2020 Time: 1:30 p.m. Department: C42 Reservation No. 73206985 1 Motion to Compel Response to Form Interrogatories, Set Two © 0 9 O N nn Bs W N = NN N N N N N N N ND = m m e m e e e e e k e m CO I O N Wn BA W I N D = O O O N N R A W = O PLEASE TAKE NOTICE that on 04/13/2020 , at 1:30 p.m., or as soon thereafter as the matter may be heard before the Hon. David A. Hoffer, Judge, in Department C42 of the Superior Court of the State of California, County of Orange, Plaintiff Aida Yusupova (“Plaintiff”) will and hereby does move for an Order compelling Defendant Joseph D. Kowal (“Defendant”) to serve responses to Form Interrogatories, Set One and ordering Defendant and his attorney of record Jeffrey S. Benice (“Benice”) to pay monetary sanctions in the sum of $1,332.50. Said motion will be made pursuant to California Code of Civil Procedure §§ 2030.290(b) and 2030.290(c) on the grounds that Form Interrogatories, Set One were properly served on Defendant but Defendant failed/refused to serve responses. This Motion is based on this Notice of Motion, the Memorandum of Points and Authorities in support thereof, the Declaration of Vladi Khiterer and all papers and pleadings on file in this action, and on such other and further evidence as may be presented at the time of the hearing. DATED: January 21, 2020 Khiterer, Inc. /S/ Viadi Khiterer Vladi Khiterer Attorneys for plaintiff Aida Yusupova 2 Motion to Compel Response to Form Interrogatories, Set Two © 0 9 O N nn Bs W N = NN N N N N N N N ND = m m e m e e e e e k e m CO I O N Wn BA W I N D = O O O N N R A W = O MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION The Court should compel Defendant to serve responses to Form Interrogatories, Set One and order Defendant and Benice to pay monetary sanctions in the sum of $1,332.50 because said Form Interrogatories were properly served on Defendant but Defendant failed/refused to serve responses. II. FACTS Plaintiff, a personal assistant to Defendant, 33 years her senior, was fired for refusing to have sex with Defendant. Defendant also failed to pay for the last month of work, failed to pay overtime and failed to provide paychecks with the information required by California Labor Code § 226. On 12/16/2019, Plaintiff served Form Interrogatories, Set Two (see Exh. 1) by e mailing them to Benice at the e mail address JSB@JeffreyBenice.com. (See Khiterer Decl. 42). This service was proper per CRC 8.78(2)(B). The responses were due on 01/17/2020 but were not served. III. THE COURT SHOULD COMPEL DEFENDANT TO SERVE THE RESPONSES AND AWARD MONETARY SANCTIONS If a party to whom interrogatories were directed fails to serve a timely response, the propounding party may move for an order compelling responses and for monetary sanctions (see California Code of Civil Procedure §§ 2030.290(b) and 2030.290(c), Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal. App.4th 390, 404). Here, Form Interrogatories, Set Two were properly served on Defendant but Defendant failed/refused to serve responses. Further, Plaintiff asks that the Court consider Defendant and Benice’s conduct in this litigation in ignoring every single 3 Motion to Compel Response to Form Interrogatories, Set Two © 0 9 O N nn Bs W N = NN N N N N N N N ND = m m e m e e e e e k e m CO I O N Wn BA W I N D = O O O N N R A W = O discovery request and forcing Plaintiff to file one or more discovery motions for each single discovery request. Accordingly, neither Defendant nor Benice acted with substantial justification in failing/refusing to serve the responses. Therefore, the Court should compel Defendant to serve the responses to Form Interrogatories, Set Two and award monetary sanctions in the sum of $1,332.50, as described in detail in Khiterer Decl. 45, against Defendant and Benice. IV. CONCLUSION For the foregoing reasons, Plaintiff Aida Yusupova respectfully requests that the Court compel Defendant to serve the responses to Form Interrogatories, Set Two and award monetary sanctions in the sum of $1,332.50, against Defendant Joseph D. Kowal and his attorney of record Jeffrey S. Benice. DATED: January 21, 2020 Khiterer, Inc. /S/ Viadi Khiterer Vladi Khiterer Attorneys for plaintiff Aida Yusupova 4 Motion to Compel Response to Form Interrogatories, Set Two © 0 9 O N nn Bs W N = NN N N N N N N N ND = m m e m e e e e e k e m CO I O N Wn BA W I N D = O O O N N R A W = O DECLARATION OF VLADI KHITERER I, Vladi Khiterer, declare: I. I am the attorney of record for Plaintiff Aida Yusupova in this action. I have personal knowledge of the facts stated in this declaration and if called as a witness I could and would competently testify to these facts. 2. Attached hereto as Exhibit 1 is a true and correct copy of the Form Interrogatories, Set Two that I served on Defendant on 12/16/2019 by e mailing same to Defendant’s counsel Jeffrey S. Benice at Mr. Benice’s e mail address JSB@JeffreyBenice.com. 3. Attached hereto as Exhibit 2 is a true and correct copy of the e mail to Mr. Benice dated 12/16/2019 to which said Form Interrogatories, Set Two were attached. 4. Attached hereto as Exhibit 3 is a true and correct copy of the e mail to Mr. Benice dated 12/02/2019. 5. I have been a litigator since 1995. I am also admitted to practice before the United States Patents and Trademarks office. I routinely litigate complex cases and I have been appointed Class Counsel in complex Class Action cases. | have tried more than a dozen cases to judgment. My billing rate in this matter is $600.00 per hour, which I am informed is at or below the hourly rates charged by practitioners in Orange County with like experience. I have spent 0.6 hours on preparing this Motion. There is a $60.00 filing fee for the Motion and $12.50 fee to One Legal for filing the Motion. I will spend a minimum of 0.5 hours on preparing a Reply to Opposition and a minimum of 1.0 hours on commuting to and from the Court and appearing at the hearing. Accordingly, the total amount of monetary sanctions requested is $1,332.50. 5 Motion to Compel Response to Form Interrogatories, Set Two © 0 9 O N nn Bs W N = NN N N N N N N N ND = m m e m e e e e e k e m CO I O N Wn BA W I N D = O O O N N R A W = O I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed at Newport Beach, California, on January 21, 2020. /S/ Vladi Khiterer Vladi Khiterer 6 Motion to Compel Response to Form Interrogatories, Set Two Exhibit 1 DISC-001 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address): Vladi Khiterer (Bar No. 177007) |__ Khiterer, Inc. 2901 W. Coast Hwy., Suite 200 Newport Beach, CA 92663 TELEPHONE NO.: (949) 631-6161 FAX NO. (Optional): E-MAIL ADDRESS (Optiona): Vladi@Xkhiterer.com ATTORNEY FOR (Name): Plaintiff AIDA YUSUPOVA SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE SHORT TITLE OF CASE: YUSUPOVA v. KOWAL Asking Party: Plaintiff AIDA YUSUPOVA Answering Party: Defendant JOSEPH D. KOWAL SetNo.: Two FORM INTERROGATORIES—GENERAL CASE NUMBER: 30-2019-01043210-CU-OE-CJC Sec. 1. Instructions to All Parties (a) Interrogatories are written questions prepared by a party to an action that are sent to any other party in the action to be answered under oath. The interrogatories below are form interrogatories approved for use in civil cases. (b) For time limitations, requirements for service on other parties, and other details, see Code of Civil Procedure sections 2030.010-2030.410 and the cases construing those sections. (c) These form interrogatories do not change existing law relating to interrogatories nor do they affect an answering party's right to assert any privilege or make any objection. Sec. 2. Instructions to the Asking Party (a) These interrogatories are designed for optional use by parties in unlimited civil cases where the amount demanded exceeds $25,000. Separate interrogatories, Form Interrogatories—Limited Civil Cases (Economic Litigation) (form DISC-004), which have no subparts, are designed for use in limited civil cases where the amount demanded is $25,000 or less; however, those interrogatories may also be used in unlimited civil cases. (b) Check the box next to each interrogatory that you want the answering party to answer. Use care in choosing those interrogatories that are applicable to the case. (c) You may insert your own definition of INCIDENT in Section 4, but only where the action arises from a course of conduct or a series of events occurring over a period of time. (d) The interrogatories in section 16.0, Defendant's Contentions—Personal Injury, should not be used until the defendant has had a reasonable opportunity to conduct an investigation or discovery of plaintiff's injuries and damages. (e) Additional interrogatories may be attached. Sec. 3. Instructions to the Answering Party (a) An answer or other appropriate response must be given to each interrogatory checked by the asking party. (b) As a general rule, within 30 days after you are served with these interrogatories, you must serve your responses on the asking party and serve copies of your responses on all other parties to the action who have appeared. See Code of Civil Procedure sections 2030.260-2030.270 for details. Form Approved for Optional Use Judicial Council of California DISC-001 [Rev. January 1, 2008] (c) Each answer must be as complete and straightforward as the information reasonably available to you, including the information possessed by your attorneys or agents, permits. If an interrogatory cannot be answered completely, answer it to the extent possible. (d) If you do not have enough personal knowledge to fully answer an interrogatory, say so, but make a reasonable and good faith effort to get the information by asking other persons or organizations, unless the information is equally available to the asking party. (e) Whenever an interrogatory may be answered by referring to a document, the document may be attached as an exhibit to the response and referred to in the response. If the document has more than one page, refer to the page and section where the answer to the interrogatory can be found. (f) Whenever an address and telephone number for the same person are requested in more than one interrogatory, you are required to furnish them in answering only the first interrogatory asking for that information. (9) If you are asserting a privilege or making an objection to an interrogatory, you must specifically assert the privilege or state the objection in your written response. (h) Your answers to these interrogatories must be verified, dated, and signed. You may wish to use the following form at the end of your answers: | declare under penalty of perjury under the laws of the State of California that the foregoing answers are true and correct. FORM INTERROGATORIES—GENERAL (DATE) (SIGNATURE) Sec. 4. Definitions Words in BOLDFACE CAPITALS in these interrogatories are defined as follows: (a) (Check one of the following): (1) INCIDENT includes the circumstances and events surrounding the alleged accident, injury, or other occurrence or breach of contract giving rise to this action or proceeding. Page 1 of 8 Code of Civil Procedure, §§ 2030.010-2030.410, 2033.710 www.courtinfo.ca.gov [] 16.3 Do you contend that the injuries or the extent of the injuries claimed by plaintiff as disclosed in discovery proceedings thus far in this case were not caused by the INCIDENT? If so, for each injury: (a) identify it; (b) state all facts upon which you base your contention; (c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of the facts; and (d) identify all DOCUMENTS and other tangible things that support your contention and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing. 1] 16.4 Do you contend that any of the services furnished by any HEALTH CARE PROVIDER claimed by plaintiff in discovery proceedings thus far in this case were not due to the INCIDENT? If so: (a) identify each service; (b) state all facts upon which you base your contention; (c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of the facts; and (d) identify al DOCUMENTS and other tangible things that support your contention and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing. ] 16.5 Do you contend that any of the costs of services furnished by any HEALTH CARE PROVIDER claimed as damages by plaintiff in discovery proceedings thus far in this case were not necessary or unreasonable? If so: (a) identify each cost; (b) state all facts upon which you base your contention; (c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of the facts; and (d) identify all DOCUMENTS and other tangible things that support your contention and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing. O 16.6 Do you contend that any part of the loss of earnings or income claimed by plaintiff in discovery proceedings thus far in this case was unreasonable or was not caused by the INCIDENT? If so: (a) identify each part of the loss; (b) state all facts upon which you base your contention; (c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of the facts; and (d) identify all DOCUMENTS and other tangible things that support your contention and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing. ] 16.7 Do you contend that any of the property damage claimed by plaintiff in discovery Proceedings thus far in this case was not caused by the INCIDENT? If so: (a) identify each item of property damage; (b) state all facts upon which you base your contention; (c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of the facts; and (d) identify all DOCUMENTS and other tangible things that support your contention and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing. DISC-001 ] 16.8 Do you contend that any of the costs of repairing the property damage claimed by plaintiff in discovery proceedings thus far in this case were unreasonable? If so: (a) identify each cost item; (b) state all facts upon which you base your contention; (c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of the facts; and (d) identify al DOCUMENTS and other tangible things that support your contention and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing. [] 16.9 Do YOU OR ANYONE ACTING ON YOUR BEHALF have any DOCUMENT (for example, insurance bureau index reports) concerning claims for personal injuries made before or after the INCIDENT by a plaintiff in this case? If so, for each plaintiff state: (a) the source of each DOCUMENT; (b) the date each claim arose; (c) the nature of each claim; and (d) the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT. ] 16.10 Do YOU OR ANYONE ACTING ON YOUR BEHALF have any DOCUMENT concerning the past or present physical, mental, or emotional condition of any plaintiff in this case from a HEALTH CARE PROVIDER not previously identified (except for expert witnesses covered by Code of Civil Procedure sections 2034.210-2034.310)? If so, for each plaintiff state: (a) the name, ADDRESS, and telephone number of each HEALTH CARE PROVIDER; (b) a description of each DOCUMENT; and (c) the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT. 17.0 Responses to Request for Admissions 17.1 Is your response to each request for admission served with these interrogatories an unqualified admission? If not, for each response that is not an unqualified admission: (a) state the number of the request; (b) state all facts upon which you base your response; (c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; and (d) identify all DOCUMENTS and other tangible things that support your response and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing. 18.0 [Reserved] 19.0 [Reserved] 20.0 How the Incident Occurred—Motor Vehicle []20.1 state the date, time, and place of the INCIDENT (closest street ADDRESS or intersection). [1202 For each vehicle involved in the INCIDENT, state: (a) the year, make, model, and license number; (b) the name, ADDRESS, and telephone number of the driver; DISC-001 [Rev. January 1, 2008] FORM INTERROGATORIES—GENERAL Page 7 of 8 OO 00 9 O N Wn bh W N = N N ND DN N D DN N N N N m = mm e m md p d p d md p d p d 0 NN O N Un RA W N Oo DO N N N R R W N N = 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, a Citizen of the United States and not a party to the within action; my business address is 2901 W. Coast Hwy., Suite 200, Newport Beach, CA 92663, my e mail is vladi@khiterer.com. On December 16, 2019, I served the foregoing document described as Form Interrogatories, Set Two on the interested parties in this action by transmitting a true copy thereof via e mail to: Jeffrey S. Benice, Esq.: JSB@JeffreyBeni The parties served by e mail are required by law to accept service by e mail. I am informed that said transmission was successful. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated: December 16, 2019 Vladi Khiterer 1 Proof of Service Exhibit 2 From: Vladi Khiterer viadi@khiterer.com & Subject: Yusupova v. Kowal Date: December 16, 2019 at 11:31 AM To: JSB@JeffreyBenice.com Please see attached. Best Regards Vladi Khiterer KHITERER, INC. 2901 W. Coast Hwy., Suite 200 Newport Beach, CA 92663 tel 949.631.6161 www.khiterer.com por I form interro...wo.pdf a. request for admiss...wo.pdf © 0 9 O N nn Bs W N = NN N N N N N N N ND = m m e m e e e e e k e m CO I O N Wn BA W I N D = O O O N N R A W = O 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, a Citizen of the United States and not a party to the within action; my business address is 2901 W. Coast Hwy., Suite 200, Newport Beach, CA 92663, my e mail is vladi@khiterer.com. On January 21, 2020, I served the foregoing document described as Notice of Motion and Motion to Compel Responses to Form Interrogatories, Set Two, for monetary sanctions against Defendant Joseph D. Kowal and his attorney of record Jeffrey S. Benice; Memorandum of Points and Authorities; Declaration of Vladi Khiterer on the interested parties in this action by transmitting a true copy thereof via e mail to: Jeffrey S. Benice, Esq.: JSB@JeffreyBenice.com The parties served by e mail are required by law to accept service by e mail. I am informed that said transmission was successful. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated: January 21, 2020 /S/ Vladi Khiterer Vladi Khiterer 1 Proof of Service