Bareno vs Rancho Auto And Truck Parts

Response

Cal. Super. - 4th Dist.October 10, 2017

f o N O N D N R N N N N N r e be m pm b pe t e e ee s e t pe e e m pe s « 0 N N n t B R W N = O Y N N R W e e O o D 0 1 O N t n E B W N POLIQUIN & DEGRAVE LLP Douglas M. DeGrave, SBN: 100555 April C. Balangue, SBN 211911 22972 Mill Creek Drive Laguna Hills, CA 92653 Telephone: (949)716-8230/(949)716-4750 Associate Counsel for Defendant, F & R REAL ESTATE, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO (HALL OF JUSTICE) MARY BARENO; and ADAM NICHOLSON, Plaintiffs, VS. RANCHO AUTO AND TRUCK PARTS; CARQUEST AUTO PARTS; ADVANCE AUTO PARTS; F & R REAL ESTATE, INC; and DOES 1 Thru 100, Inclusive, Defendants. TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD HEREIN: Defendant F & R Real Estate, Inc. herebysets forth its Response to Plaintiff Adam Nicholson’s Separate Statement in Support of its Opposition to Plaintiffs’ Motion to Compel Further Responses to Request for Admissions, Set One, as follows: 1 iu I 1 Case No. 37-2017-00038159-CU-PO-CTL Hon. Joan M. Lewis C-65 Assigned to: Dept.: RESPONSE TO PLAINTIFF ADAM NICHOLSON’S SEPARATE STATEMENT OF DISCOVERY ITEMS IN DISPUTE IN SUPPORT OF OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TQ REQUEST FOR ADMISSIONS, SET ONE Date: December 7,2018 Time: 8:30 a.m. Dept.: C-65 Complaint Filed: October 10, 2017 Trial: April 12,2019 Separate Statement in Support of Opposition to Plaintiff Adam Nicholson’s Motion to Compel Further RFA O 0 0 O y n v R e W N N N R N R N N N N N N r m e m pe d pe ed pe ed be d e d be d e d e d 0 N N h h B R W N = O D 0 Y Y i n B W e e © RESPONSE TO SEPARATE STATEMENT OF DISCOVERY ITEMS IN DISPUTE REQUEST FOR ADMISSION1: Plaintiff Adam Nicholson was injured as a result of the INCIDENT. (For the purposes of these requests, all references to “INCIDENT” includes the circumstances and events surrounding the alleged accident, injury, or other occurrence or breach giving rise to this action nor proceeding, including but not limited to the accident that occurred on or about 10/10/2015. RESPONSE TO REQUST FOR ADMISSION NO. 1: Objection. This request calls for the legal conclusion and/or the expert opinions of layperson and invades the province of a jury, which is the ultimate trier of fact. This objection is based on personal knowledge and information. See, Chodos v. Superior Court (Lowe) (1963), 215 Cal.App.2d 318. This responding party does not have enough knowledge or information sufficient to admit or deny this request, though a reasonable and diligent effort has been made to comply. Lindgren v. Sup. Ct (1965), 237 Cal.App.2d 743. REASON FOR A FURTHER RESPONSE TO REQUEST NO. 1: This request seeks to gain information as to Plaintiff’s injuries and liability of the Defendant. Plaintiff prior to engaging in this litigation process had been produced all their medical records,in their demand issued to Defendants Insurance Company and has further produced her medical records in discovery proceedings. Thus, Defendant has acquired sufficient information through extensive discovery and Defendant can intelligently respondto this request. Additionally, “inability to admit” pursuant to pursuant to CCP §2033.220, requires a detailed reason under oath, otherwise it is considered in bad-faith, justifying sanctions. Even if a party shows a lack of personal knowledge but has “sources available and fails to make a reasonable investigation it shows. ..lack of good reason for the failure to admit and 2- Separate Statement in Support of Opposition to Plaintiff Adam Nicholson’s Motion to Compel Further RFA D 0 Y O N a h B A W N D ee s B N N Y D N R N N N N N N m m e e p e d e e e d m k m d p m p m e e C O ~ ~ O N U n B A W N = O O N O Y R W N = o o supports sanction award.” Wimberly v. Derby Cycle Corp (1997) 56 Cal.App.4th 618, 634-5, Objecting based on lack of personal knowledge is insufficient if access to knowledgeis reasonably available. Lindgreen v. Superior Court (1965) 237 Cal.App.2d 743, 746; Chodos v. Superior Court (1963) 215 Cal.App.2d 318, 323. This includes facts supporting their contentions which can arguably be considered “attorney work-product”. Burke v. Superior Court (1969) 71 Cal.2d 276. Smith v. Circle P. Ranch (1978), 87 Cal.App.3d 267, 275. [If information available, there is no good reason for denial and sanctions are justified] The legislature intended to take the “game” element out oftrial preparation while yet retaining the adversary nature oftrial itself. One of the principle purposes of discovery was to do away with the sporting theory of litigation-namely surprise at trial.” Chronicle Pub. Co v. Superior Court (1960) 54 Cal. 2d, 548,561, See also page (572 citing to United States v. Procter & Gamble Co. (1958), 356 U.S. 677 [Discovery tends to “make trial less of a game of blind man’s bluff and more a fair contest with basic issues and facts disclosed to the fullest practicable extent.”] Plaintiff is absolutely entitled to seek Defendant’s contentions as to liability. Burke v. Superior Court (1969) 71 Cal.2d 276. Objections based on the lack of personal knowledge are insufficient if access to knowledgeis reasonably available. Lindgreen v. Superior Court 1965) 237 Cal.App.2d 743, 746; Chodos v. Superior Court 1963) 215 Cal.App.2d 318, 323. The courts have specifically held that one even has an obligation to consult with their experts when responding to discovery. Tehachapi-Cummings County Water Dist. v. Superior Court (1968) 267 Cal.App.2d 42; See also, Sigerseth v. Superior Court (1972) 23 Cal.App.3d 427 [Sanctions imposed for party’s refusal to obtain information fromits own expert to answer interrogatories]. 3. Separate Statement in Support of Opposition to Plaintiff Adam Nicholson’s Motion to Compel Further RFA O O 0 0 3 O N L n B s W w W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Requests for admissions are not a discovery in the traditional sense. International Harvester v. Superior Court 1969) 273 Cal.App.2d 652, 655; Lieb v. Superior Court (1962) 199 Cal. App.2d. 364, 367; Hillman v. Stultz (1968) 263 Cal.App.3d 848, 885; Burch v. Gombos (2000) 82 Cal. App.4th 352, 359. They also serve to establish uncontroverted facts learned from other discovery, which saves time and expense of proof at trial. Fredericks v. Kontos Industries 1987) 189 Cal.App.3d 272, 276. Therefore, the objection such as “premature disclosure of expert witnesses” do not apply. One, request for admissions are not discovery devices. Two, neither the expert witness’s identity nor his testimony is sought or disclosed. Additionally, Defendants contend that they have not conducted discovery in this matter, and thus they are unable to admit or deny the question. Defendantis in receipt of all the medical records ofthe Plaintiff, prior to engaging in the litigation process Plaintiff sent a demand letter to Defendants insurance company, Defendant has sufficient information to answerthe request and is dodging Plaintiff’s questions, thus, defeating the spirit oflitigation. Defendant should be ordered to provide a full and complete and non-evasive responses and without objections to this Request for Admission and where appropriate to amend their response to the concomitant Form Interrogatory 17.1. REASON NO FURTHER RESPONSE TO REQUEST NO. 1 IS WARRANTED: On August 31, 2018, F & R served Amended Responses to Plaintiff Adam Nicholson’s Request for Admissions, Set One. Specifically contained therein, Defendant provided an amended response to this request. Therefore, Plaintiffs argument for why a further response is necessary is inapplicable, and no longer valid. Consequently, Defendant should not be required to provide a further response to this request. 4. Separate Statement in Support of Opposition to Plaintiff Adam Nicholson’s Motion to Compel Further RFA O e 1 S N h b W N D O D N N N R N N N N O N m e m m r e ee d p m p m m d pe e pe ed p e © N Y L h B W O D N Y N B R W R e e O O REQUEST FOR ADMISSION 2: PlaintiffAdam Nicholson did not contribute to the cause of the INCIDENT. RESPONSE TO REQUEST FOR ADMISSION NO. 2: Objection. This requestcalls for the legal conclusion and/or the expert opinions of layperson and invadesthe province of a jury, whichis the ultimate trier of fact. This objection is based on personal knowledge and information. See, Chodos v. Superior Court (Lowe) (1963), 215 Cal.App.2d 318. This responding party does not have enough knowledge or information sufficient to admit or deny this request, though a reasonable and diligent effort has been made to comply. Lindgren v. Sup. Ct (1965), 237 Cal.App.2d 743. REASON FOR A FURTHER RESPONSE TO REQUEST NO.2: This request seeks to gain information as to Plaintiffs injuries and liability of the Defendant. Plaintiffs slipped and fell on an unknown liquid substance that presented a dangerous condition on Defendants’ premises, located at or about 2004 Diary Mart Road, San Ysidro, CA 92173 (“Subject Premises”). Plaintiffs clearly did not contribute to the cause of the INCIDENT. However, Defendants fail to provide a straightforward response. The question asked is a simple and straight forward question and Defendant’s objections of calls for the legal conclusion and/or the expert opinions of a layperson are not well taken. Plaintiff is entitled to meaningful responses to discovery. Additionally, “inability to admit” pursuant to pursuant to CCP §2033.220, requires a detailed reason under oath, otherwise it is considered in bad-faith, justifying sanctions. Evenif a party showsa lack of personal knowledge but has “sources available and fails to make a reasonable investigation it shows. ..lack of good reason for the failure to admit and supports sanction award.” Wimberly v. Derby Cycle Corp (1997) 56 Cal.App.4th 618, 634-5. -5- Separate Statement in Support of Opposition to Plaintiff Adam Nicholson’s Motion to Compel Further RFA O o ~~ ) O y n h B W N e B N N N N N N N N N e e o e k e pe ed pe d p d d k pe d pe ed p m 0 N N U n R E W N = O N D 0 N Y R W e e O O Objecting based on lack of personal knowledge is insufficient if access to knowledge is reasonably available. Lindgreen v. Superior Court (1965) 237 Cal.App.2d 743, 746; Chodos v. Superior Court (1963) 215 Cal.App.2d 318, 323. This includesfacts supporting their contentions which can arguably be considered “attorney work-product”. Burke v. Superior Court (1969) 71 Cal.2d 276. Smith v. Circle P. Ranch (1978), 87 Cal.App.3d 267, 275. [If information available, there is no good reason for denial and sanctions are justified] The legislature intended to take the “game” element out oftrial preparation while yet retaining the adversary nature oftrialitself. One of the principle purposes of discovery was to do away with the sporting theory of litigation-namely surprise at trial.” Chronicle Pub. Co v. Superior Court (1960) 54 Cal. 2d, 548,561, See also page (572 citing to United States v. Procter & Gamble Co. (1958), 356 U.S. 677 [Discovery tendsto “maketrial less of a game of blind man’s bluff and more a fair contest with basic issues and facts disclosed to the fullest practicable extent.”] Plaintiff is absolutely entitled to seek Defendant’s contentions as to liability. Burke v. Superior Court (1969) 71 Cal.2d 276. Additionally, Defendants contend that this request “invades the province of a jury” is without merit. Plaintiffs slipped and fell on an unknown liquid substance that presented a dangerous condition on the Subject Premises. Plaintiff clearly did not contribute to this dangerous condition. Defendant has sufficient information to answer the request and is dodging plaintiff's questions, thus, defeating the spirit oflitigation. Defendant’s objections lack merit and should be overruled and striken. Defendant should be ordered to provide a full and complete and non-evasive responses and without -6- Separate Statement in Support of Opposition to Plaintiff Adam Nicholson’s Motion to Compel Further RFA O 0 0 1 N n B L D D R O R N N N N N N N e e p e ee d e d f d pe ed pe ed ee d pe ed = = T E S t A = EE N - TE E E o S N V e E E a = ] objections to this Request for Admission and where appropriate to amend their response to the concomitant Form Interrogatory 17.1. REASON NO FURTHER RESPONSE TO REQUEST NO. 2 IS WARRANTED: On August 31, 2018, F & R served Amended Responses to Plaintiff Adam Nicholson’s Request for Admissions, Set One. Specifically contained therein, Defendant provided an amended response to this request. Therefore, Plaintiffs argument for why a further response is necessaryis inapplicable, and no longer valid. Consequently, Defendant should not be required to provide a further response to this request. REQUEST FOR ADMISSION NO. 3: Plaintiff Adam Nicholson incurred at least $1.00 of economic damagesas a result of the INCIDENT. RESPONSE TO REQUEST FOR ADMISSION NO.3: Objection. This requestcalls for the legal conclusion and/or the expert opinions of layperson and invades the province of a jury, which is the ultimate trier of fact. This objection is based on personal knowledge and information. See, Chodos v. Superior Court (Lowe) (1963), 215 Cal.App.2d 318. This responding party does not have enough knowledge or information sufficient to admit or deny this request, though a reasonable and diligent effort has been made to comply. Lindgren v. Sup. Ct (1965), 237 Cal.App.2d 743. REASON FOR A FURTHER RESPONSE TO REQUEST NO. 3: This request seeks to gain information as to Plaintiff’s injuries and liability of the Defendant. Plaintiff prior to engaging in this litigation process had been produced all their medical records,in their demand issued to Defendants Insurance Company and has further -7- Separate Statement in Support of Opposition to Plaintiff Adam Nicholson’s Motion to Compe! Further RFA O o 0 3 O N B R W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 produced her medical records in discovery proceedings. Thus, Defendant has acquired sufficient information through extensive discovery and Defendant can intelligently respond to this request. Additionally, “inability to admit” pursuant to pursuant to CCP §2033.220, requires a detailed reason under oath, otherwiseit is considered in bad-faith, justifying sanctions. Even if a party shows a lack of personal knowledge but has “sources available and fails to make a reasonable investigationit shows...lack of good reason for the failure to admit and supports sanction award.” Wimberly v. Derby Cycle Corp (1997) 56 Cal.App.4th 618, 634-5. Objecting based on lack of personal knowledge is insufficient if access to knowledge is reasonably available. Lindgreen v. Superior Court (1965) 237 Cal.App.2d 743, 746; Chodos v. Superior Court (1963) 215 Cal.App.2d 318, 323. This includes facts supporting their contentions which can arguably be considered “attorney work-product”. Burke v. Superior Court (1969) 71 Cal.2d 276. Smith v. Circle P. Ranch (1978), 87 Cal.App.3d 267, 275. [If information available, there is no good reason for denial and sanctions are justified] The legislature intended to take the “game” element out oftrial preparation while yet retaining the adversary nature oftrial itself. One of the principle purposes of discovery wasto do away with the sporting theory of litigation-namely surprise at trial.” Chronicle Pub. Co v. Superior Court (1960) 54 Cal. 2d, 548,561, See also page (572 citing to United States v. Procter & Gamble Co. (1958), 356 U.S. 677 [Discovery tends to “make trial less of a game of blind man’s bluff and more a fair contest with basic issues and facts disclosed to the fullest practicable extent.”] Plaintiff is absolutely entitled to seek Defendant’s contentions as to liability. Burke v. Superior Court (1969) 71 Cal.2d 276. -8- Separate Statement in Support of Opposition to Plaintiff Adam Nicholson’s Motion to Compe! Further RFA N O 0 0 3 O N n y B R W N ) e e N N N N N N N N N F e a he m pe d e d m d pe e pe ed pe a p a 0 0 ~ ~ O N n n B W N e O N D 0 N N B R W R e e O O Additionally, Defendants contend that this request “invades the province of a jury”is without merit. Plaintiffprovided Defendant with her medical records and bills. A mere glance at Plaintiff’s medical bills will confirm that she incurred at least $1.00 in economic damages. Defendant has sufficient information to answer the request and is dodging plaintiff's questions, thus, defeating the spirit oflitigation. Defendant should be ordered to provide a full and complete and non-evasive responses and without objections to this Request for Admission and where appropriate to amend their response to the concomitant Form Interrogatory 17.1. REASON NO FURTHER RESPONSE TO REQUEST NO. 3 IS WARRANTED: On August 31, 2018, F & R served Amended Responses to Plaintiff Adam Nicholson’s Request for Admissions, Set One. Specifically contained therein, Defendant provided an amended response to this request. Therefore, Plaintiffs argument for why a furtherresponse is necessary is inapplicable, and no longer valid. Consequently, Defendant should not be required to provide a further response to this request. REQUEST FOR ADMISSION NO.4: Defendant F & R Real Estate, Inc.’s negligence was a cause of the INCIDENT. RESPONSE TO REQUEST FOR ADMISSION NO.4: Objection. This request calls for the legal conclusion and/or the expert opinions of layperson and invades the province of a jury, which is the ultimate trier of fact. This objection is based on personal knowledge and information. See, Chodos v. Superior Court (Lowe) (1963), 215 Cal.App.2d 318. This responding party does not have enough knowledge or information sufficient to admit or deny this request, though a reasonable and diligent effort has been made to comply. Lindgren v. Sup. Ct (1965), 237 Cal.App.2d 743. 9. Separate Statement in Support of Opposition to Plaintiff Adam Nicholson’s Motion to Compel Further RFA N O 1 O n B A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REASON FOR A FURTHER RESPONSE TO REQUEST NO.4: This request seeks to gain information as to Plaintiff’s injuries and liability of the Defendant. Plaintiffs slipped and fell on an unknown liquid substance that presented a dangerous condition on the Subject Premises.It is clear that Defendants’ negligence was a causal factor. However, Defendants fail to provide a straight forward response. The question asked is a simple and straight forward question and Defendants objections of calls for the legal conclusion and/or the expert opinions of a layperson are not well taken. Plaintiff is entitled to meaningful responses to discovery. Additionally, “inability to admit” pursuant to pursuant to CCP §2033.220, requires a detailed reason under oath, otherwiseit is considered in bad-faith,justifying sanctions. Even if a party shows a lack of personal knowledge but has “sources available and fails to make a reasonable investigation it shows...lack of good reason for the failure to admit and supports sanction award.” Wimberly v. Derby Cycle Corp (1997) 56 Cal.App.4th 618, 634-5. Objecting based on lack of personal knowledge is insufficient if access to knowledge is reasonably available. Lindgreen v. Superior Court (1965) 237 Cal.App.2d 743, 746; Chodos v. Superior Court (1963) 215 Cal.App.2d 318, 323. This includes facts supporting their contentions which can arguably be considered “attorney work-product”. Burke v. Superior Court (1969) 71 Cal.2d 276. Smith v. Circle P. Ranch (1978), 87 Cal.App.3d 267, 275. [If information available, there is no good reason for denial and sanctionsare justified] The legislature intended to take the “game” elementout oftrial preparation while yet retaining the adversary nature oftrial itself. One of the principle purposes of discovery was to do away with the sporting theory oflitigation-namely surprise at trial.” Chronicle Pub. Co v. Superior Court (1960) 54 Cal. 2d, 548,561, See also page (572 citing to United States v. Procter -10- Separate Statement in Support of Opposition to Plaintiff Adam Nicholson’s Motion to Compel Further RFA N O 0 N Y i n B s W Y N o R N R N N O N N N m e m e a p e e m pe w pe d ee d pe e o w 3 N h B A W N D = D N D 0 0 N N I W N = m O o & Gamble Co. (1958), 356 U.S. 677 [Discovery tends to “make trial less of a game of blind man’s bluff and more a fair contest with basic issues and facts disclosed to the fullest practicable extent.”] Plaintiff is absolutely entitled to seek Defendant’s contentions asto liability. Burke v. Superior Court (1969) 71 Cal.2d 276. Additionally, Defendants contend that this request “invades the province of a jury”is without merit. Plaintiffs slipped and fell on an unknown liquid substance that presented a dangerous condition on the Subject Premises. Plaintiff clearly did not contribute to this dangerous condition. Defendant has sufficient information to answerthe request and is dodging plaintiff’s questions, thus, defeating the spirit of litigation. Defendant’s objections lack merit and should be overruled and striken. Defendant should be ordered to provide a full and complete and non-evasive responses and without objections to this Request for Admission and where appropriate to amend their response to the concomitant Form Interrogatory 17.1. REASON NO FURTHER RESPONSE TO REQUEST NO. 4 IS WARRANTED: On August 31, 2018, F & R served Amended Responses to Plaintiff Adam Nicholson’s Request for Admissions, Set One. Specifically contained therein, Defendant provided an amended response to this request. Therefore, Plaintiffs argument for why a further response is necessary is inapplicable, and no longer valid. Consequently, Defendant should not be required to provide a further response to this request. REQUEST FOR ADMISSION NO.5: Plaintiff Adam Nicholson was injured as a result of Defendant F & R Real Estate, Inc.’s negligence. -11- Separate Statement in Support of Opposition to Plaintiff Adam Nicholson’s Motion to Compel Further RFA O o le ] ~ J O N w h + \ n o p k [\ ] N o N O N o N o N o [\ ®] r o N o - _ - - - _ - _ - - -_ - -_ - - o o ~ J 3 w n J [F S] t o [ a o o \ O 0 0 ~ a N w n ES N W w n o - o RESPONSE TO REQUST FOR ADMISSION NO.5: Objection. This requestcalls for the legal conclusion and/or the expert opinions of layperson and invades the province of a jury, which is the ultimate trier of fact. This objection is based on personal knowledge and information. See, Chodos v. Superior Court (Lowe) (1963), 215 Cal.App.2d 318. This responding party does not have enough knowledge or information sufficient to admit or deny this request, though a reasonable and diligent effort has been made to comply. Lindgren v. Sup. Ct (1965), 237 Cal.App.2d 743. REASON FOR A FURTHER RESPONSE TO REQUEST NO. 5: This request seeks to gain information as to Plaintiff's injuries and liability of the Defendant. Plaintiff prior to engaging in this litigation process had been produced all their medical records,in their demand issued to Defendants Insurance Company and has further produced her medical records in discovery proceedings. Thus, Defendant has acquired sufficient information through extensive discovery and Defendant can intelligently respond to this request. Additionally, “inability to admit” pursuant to pursuant to CCP §2033.220, requires a detailed reason under oath, otherwise it is considered in bad-faith, justifying sanctions. Even if a party shows a lack of personal knowledge but has “sources available and fails to make a reasonable investigation it shows. ..lack of good reason for the failure to admit and supports sanction award.” Wimberly v. Derby Cycle Corp (1997) 56 Cal.App.4th 618, 634-5. Objecting based on lack of personal knowledge is insufficient if access to knowledge is reasonably available. Lindgreen v. Superior Court (1965) 237 Cal.App.2d 743, 746; Chodos v. Superior Court (1963) 215 Cal.App.2d 318, 323. This includes facts supporting their contentions which can arguably be considered “attorney work-product”. Burke v. Superior -12- Separate Statement in Support of Opposition to Plaintiff Adam Nicholson’s Motion to Compe! Further RFA N O 0 0 1 O Y t h R W R Y e e B N O N N N N R R N N N m e e s s a a e m e d pe d pe d p e c o N d O Y n t B s W R N k e O O 0 N N E R W N e e O D Court (1969) 71 Cal.2d 276. Smith v. Circle P. Ranch (1978), 87 Cal.App.3d 267, 275. [If information available, there is no good reason for denial and sanctions are justified] The legislature intended to take the “game” element out oftrial preparation while yet retaining the adversary nature oftrial itself. One of the principle purposes of discovery wasto do away withthe sporting theory oflitigation-namely surprise at trial.” Chronicle Pub. Co v. Superior Court (1960) 54 Cal. 2d, 548,561, See also page (572 citing to United States v. Procter & Gamble Co. (1958), 356 U.S. 677 [Discovery tends to “make trial less of a game of blind man’s bluff and more a fair contest with basic issues and facts disclosed to the fullest practicable extent.”] Plaintiff is absolutely entitled to seek Defendant’s contentions as to liability. Burke v. Superior Court (1969) 71 Cal.2d 276. Objections based on the lack of personal knowledge are insufficient if access to knowledgeis reasonably available. Lindgreen v. Superior Court 1965) 237 Cal.App.2d 743, 746; Chodos v. Superior Court 1963) 215 Cal.App.2d 318, 323. The courts have specifically held that one even has an obligation to consult with their experts when responding to discovery. Tehachapi-Cummings County Water Dist. v. Superior Court (1968) 267 Cal.App.2d 42; See also, Sigerseth v. Superior Court (1972) 23 Cal.App.3d 427 [Sanctions imposed for party’s refusal to obtain information from its own expert to answer interrogatories]. Requests for admissions are not a discovery in the traditional sense. International Harvester v. Superior Court 1969) 273 Cal.App.2d 652, 655; Lieb v. Superior Court (1962) 199 Cal. App.2d. 364, 367; Hillman v. Stultz (1968) 263 Cal.App.3d 848, 885; Burch v. Gombos (2000) 82 Cal. App.4th 352, 359. They also serve to establish uncontroverted facts learned from other discovery, which saves time and expense of proof at trial. Fredericks v. Kontos Industries -13- Separate Statement in Support of Opposition to Plaintiff Adam Nicholson’s Motionto CompelFurther RFA O 0 0 N O Y L y B D W N ) D N N N N N N N N N e m e m e m a p d pe s e m pe d e m 0 3 O N B s W N = O Y N S N R W e e 1987) 189 Cal.App.3d 272, 276. Therefore, the objection such as “premature disclosure of expert witnesses” do not apply. One, request for admissions are not discovery devices. Two, neither the expert witness’s identity nor his testimony is sought ordisclosed. Additionally, Defendants contend that they have not conducted discovery in this matter, and thus they are unable to admit or deny the question. Defendantis in receipt of all the medical records ofthe Plaintiff, prior to engaging in the litigation process Plaintiff sent a demand letter to Defendants insurance company, Defendant has sufficient information to answer the request and is dodging Plaintiff's questions, thus, defeating the spirit oflitigation. Defendant should be ordered to provide a full and complete and non-evasive responses and without objectionsto this Request for Admission and where appropriate to amend their response to the concomitant Form Interrogatory 17.1. REASON NO FURTHER RESPONSE TO REQUEST NO. 5 IS WARRANTED: On August 31, 2018, F & R served Amended Responses to Plaintiff Adam Nicholson’s Request for Admissions, Set One. Specifically contained therein, Defendant provided an amended response to this request. Therefore, Plaintiffs argument for why a further response is necessaryis inapplicable, and no longer valid. Consequently, Defendant should not be required to provide a further response to this request. REQUEST FOR ADMISSION NO.6: Defendant F & R Real Estate, Inc.’s negligence contributed at least one (1) percent toward causing the INCIDENT. RESPONSE TO REQUST FOR ADMISSION NO.6: Objection. This request calls for the legal conclusion and/or the expert opinions of layperson and invades the province of a jury, which is the ultimate trier of fact. This objectionis -14- Separate Statement in Support of Opposition to Plaintiff Adam Nicholson’s Motion to Compel Further RFA O w N O N W y B R W N N O N D N D N N N N R N e m a a pe ed p m pe a p t p a p e R O J O N L h R W N D = O N O N N R W m o based on personal knowledge and information. See, Chodos v. Superior Court (Lowe) (1963), 215 Cal.App.2d 318. This responding party does not have enough knowledge or information sufficient to admit or deny this request, though a reasonable and diligent effort has been made to comply. Lindgren v. Sup. Ct (1965), 237 Cal.App.2d 743. REASON FOR A FURTHER RESPONSE TO REQUEST NO.6: This request seeksto gain information as to Plaintiff's injuries and liability of the Defendant. Plaintiffs slipped and fell on an unknown liquid substance that presented a dangerous condition on the Subject Premises. It is clear that Defendants’ negligence was a causal factor. However, Defendants fail to provide a straight forward response. The question asked is a simple and straight forward question and Defendant’s objections of calls for the legal conclusion and/or the expert opinions of a layperson are not well taken. Plaintiff is entitled to meaningful responses to discovery. Additionally, “inability to admit” pursuant to pursuant to CCP §2033.220, requires a detailed reason under oath, otherwiseit is considered in bad-faith,justifying sanctions. Even if a party showsa lack of personal knowledge but has “sources available and fails to make a reasonable investigation it shows...lack of good reason for the failure to admit and supports sanction award.” Wimberly v. Derby Cycle Corp (1997) 56 Cal.App.4th 618, 634-5. Objecting based on lack of personal knowledgeis insufficient if access to knowledgeis reasonably available. Lindgreen v. Superior Court (1965) 237 Cal.App.2d 743, 746; Chodos v. Superior Court (1963) 215 Cal.App.2d 318, 323. This includes facts supporting their contentions which can arguably be considered “attorney work-product”. Burke v. Superior Court (1969) 71 Cal.2d 276. Smith v. Circle P. Ranch (1978), 87 Cal.App.3d 267, 275. [If information available, there is no good reason for denial and sanctionsare justified] -15- Separate Statement in Support of Opposition to Plaintiff Adam Nicholson’s Motion to Compel Further RFA O O 0 3 O Y n n B L N e e N N N N N N N N N m m e d e a a e m e m e d a 0 N N h h B R L N = D Y N N W R W N ) e e Thelegislature intended to take the “game” element out oftrial preparation while yet retaining the adversary nature oftrial itself. One of the principle purposes of discovery was to do away with the sporting theory oflitigation-namely surprise at trial.” Chronicle Pub. Co v. Superior Court (1960) 54 Cal. 2d, 548,561, See also page (572 citing to United States v. Procter & Gamble Co. (1958), 356 U.S. 677 [Discovery tends to “make trial less of a game of blind man’s bluff and more a fair contest with basic issues and facts disclosed to the fullest practicable extent.”] Plaintiff is absolutely entitled to seek Defendant’s contentions as to liability. Burke v. Superior Court (1969) 71 Cal.2d 276. Additionally, Defendants contend that this request “invades the province of a jury”is without merit. Plaintiffs slipped and fell on an unknown liquid substance that presented a dangerous condition on the Subject Premises. Plaintiff clearly did not contribute to this dangerous condition. Defendant has sufficient information to answerthe request and is dodging plaintiff’s questions, thus, defeating the spirit oflitigation. Defendant’s objections lack merit and should be overruled and siriken. Defendant should be ordered to provide a full and complete and non-evasive responses and without objections to this Request for Admission and where appropriate to amend their response to the concomitant Form Interrogatory 17.1. REASON NO FURTHER RESPONSE TO REQUEST NO. 6 IS WARRANTED: On August 31, 2018, F & R served Amended Responses to Plaintiff Adam Nicholson’s Request for Admissions, Set One. Specifically contained therein, Defendant provided an amended response to this request. -16- Separate Statement in Support of Opposition to Plaintiff Adam Nicholson’s Motion to Compel Further RFA O O 0 N N n h B h W N B N B Y N N N N N R N DN ) r e m m e e fe et pe d be d pe ed be d pe e he d W W 3 O N W h B W N = O N D y y W N = O o Therefore, Plaintiffs argument for why a further response is necessary is inapplicable, and no longer valid. Consequently, Defendant should not be required to provide a further response to this request. REQUEST FOR ADMISSION NO.7: Defendant F & R Real Estate, Inc.’s negligence was a substantial factor in causing the INCIDENT. RESPONSE TO REQUEST FOR ADMISSION NO. 7 Objection. This request calls for the legal conclusion and/or the expert opinions of layperson and invades the province of a jury, which is the ultimate trier of fact. This objection is based on personal knowledge and information. See, Chodos v. Superior Court (Lowe) (1963), 215 Cal.App.2d 318. This responding party does not have enough knowledge or information sufficient to admit or deny this request, though a reasonable and diligent effort has been made to comply. Lindgren v. Sup. Ct (1965), 237 Cal.App.2d 743. REASON FOR A FURTHER RESPONSE TO REQUEST NO. 7: This request seeks to gain information as to Plaintiffs injuries and liability of the Defendant. Plaintiffs slipped and fell on an unknown liquid substance that presented a dangerous condition on the Subject Premises. It is clear that Defendants’ negligence was a causal factor. However, Defendantsfail to provide a straight forward response. The question asked is a simple and straight forward question and Defendant’s objections of calls for the legal conclusion and/orthe expert opinions of a layperson are not well taken. Plaintiffis entitled to meaningful responses to discovery. Additionally, “inability to admit” pursuant to pursuant to CCP §2033.220, requires a detailed reason under oath, otherwise it is considered in bad-faith, justifying sanctions. -17- Separate Statement in Support of Opposition to Plaintiff Adam Nicholson’s Motion to Compel Further RFA O e 3 O N x e N O N R N N N N N N N e e e m e m e m pe e be d pe ed e t e d e d C 0 ~ ~ O v W n b s W N e r O N D 0 0 N Y Y N I B W N D e s O D Even if a party shows a lack of personal knowledge but has “sources available and fails to make a reasonable investigation it shows. ..lack of good reason for the failure to admit and supports sanction award.” Wimberly v. Derby Cycle Corp (1997) 56 Cal.App.4th 618, 634-5. Objecting based on lack of personal knowledge is insufficient if access to knowledge is reasonably available. Lindgreen v. Superior Court (1965) 237 Cal.App.2d 743, 746; Chodos v. Superior Court (1963) 215 Cal.App.2d 318, 323. This includes facts supporting their contentions which can arguably be considered “attorney work-product”. Burke v. Superior Court (1969) 71 Cal.2d 276. Smith v. Circle P. Ranch (1978), 87 Cal.App.3d 267, 275. [If information available, there is no good reason for denial and sanctions are justified] The legislature intended to take the “game” element out oftrial preparation while yet retaining the adversary nature oftrial itself. One ofthe principle purposes of discovery was to do away with the sporting theory of litigation-namely surprise at trial.” Chronicle Pub. Co v. Superior Court (1960) 54 Cal. 2d, 548,561, See also page (572 citing to United States v. Procter & Gamble Co. (1958), 356 U.S. 677 [Discovery tends to “make trial less of a game of blind man’s bluff and more a fair contest with basic issues and facts disclosed to the fullest practicable extent.”] Plaintiff is absolutely entitled to seek Defendant’s contentionsas to liability. Burke v. Superior Court (1969) 71 Cal.2d 276. Additionally, Defendants contend that this request “invades the province of a jury” is without merit. Plaintiffs slipped and fell on an unknownliquid substance that presented a dangerous condition on the Subject Premises. Plaintiff clearly did not contribute to this dangerous condition. Defendant has sufficient information to answerthe request and is dodging plaintiff’s questions, thus, defeating the spirit of litigation. -18- Separate Statement in Support of Opposition to Plaintiff Adam Nicholson’s Motion to Compel Further RFA O 0 uN A Ln B A W ND em R N N N N N R N N R N m m h e e m p e e p e d p e d e m p e d e m 0 3 G Y A W N e m O O N Y B R W N e e O o Defendant’s objections lack merit and should be overruled and striken. Defendant should be ordered to provide a full and complete and non-evasive responses and without objections to this Request for Admission and where appropriate to amend their response to the concomitant Form Interrogatory 17.1. REASON NO FURTHER RESPONSE TO REQUEST NO. 71S WARRANTED: On August 31, 2018, F & R served Amended Responses to Plaintiff Adam Nicholson’s Request for Admissions, Set One. Specifically contained therein, Defendant provided an amended response to this request. Therefore, Plaintiffs argument for why a further response is necessary is inapplicable, and no longer valid. Consequently, Defendant should not be required to provide a further response to this request. REQUEST FOR ADMISSION NO.8: There INCIDENT was caught on video. RESPONSE TO REQUEST FOR ADMISSION NO.8: This responding party does not have enough knowledge or information sufficient to admit or deny this request, though a reasonable and diligent effort has been made to comply. Lindg env. Sup. Ct. (1965), 237 Cal.App.2d 743. REASON FOR A FURTHER RESPONSE TO REQUEST NO.8: This request seeksto gain information as to Plaintiffs injuries and liability of the Defendant via video footage. Additionally, “inability to admit” pursuant to pursuant to CCP § 2033.220, requires a detailed reason under oath, otherwise it is considered in bad-faith, justifying sanctions. Evenif a party shows a lack of personal knowledge but has “sources available and fails to make a reasonable investigation it shows...lack of good reason for the failure to admit and -19- Separate Statement in Support of Opposition to Plaintiff Adam Nicholson’s Motion to Compel Further RFA O 0 0 3 O n B W N D N N R N N N N R N m m ke t p m e m pe e p e p m p m pe d je m 0 0 N N N B R W N e e O N O N N R W = o supports sanction award.” Wimberly v. Derby Cycle Corp (1997) 56 Cal.App.4th 618, 634-5, Objecting based on lack of personal knowledge is insufficient if access to knowledge is reasonably available. Lindgreen v. Superior Court (1965) 237 Cal.App.2d 743, 746; Chodos v. Superior Court (1963) 215 Cal.App.2d 318, 323. This includes facts supporting their contentions which can arguably be considered “attorney work-product”. Burke v. Superior Court (1969) 71 Cal.2d 276. Smith v. Circle P. Ranch (1978), 87 Cal.App.3d 267, 275. [If information available, there is no good reason for denial and sanctions are justified] The legislature intended to take the “game” element out oftrial preparation while yet retaining the adversary nature oftrialitself. One of the principle purposes of discovery wasto do away with the sporting theory oflitigation-namely surprise at trial.” Chronicle Pub. Co v. Superior Court (1960) 54 Cal. 2d, 548,561, See also page (572 citing to United States v. Procter & Gamble Co. (1958), 356 U.S. 677 [Discovery tends to “make trial less of a game of blind man’s bluff and more a fair contest with basic issues and facts disclosed to the fullest practicable extent.”] Plaintiff is absolutely entitled to seek Defendant’s contentionsas to liability. Burke v. Superior Court (1969) 71 Cal.2d 276. Objections based on the lack of personal knowledge are insufficient if access to knowledge is reasonably available. Lindgreen v. Superior Court 1965) 237 Cal.App.2d 743, 746; Chodos v. Superior Court 1963) 215 Cal.App.2d 318, 323. The courts have specifically held that one even has an obligation to consult with their experts when responding to discovery. Tehachapi-Cummings County Water Dist. v. Superior Court (1968) 267 Cal.App.2d 42; See also, Sigerseth v. Superior Court (1972) 23 Cal.App.3d 427 [Sanctions imposed for party’s refusal to obtain information from its own expert to answer interrogatories]. -20- Separate Statement in Support of Opposition to Plaintiff Adam Nicholson’s Motion to Compe! Further RFA O e 3 O N i n B s W N - B N D N N N N N N R N m m e m e m e m e m pe d a pe d pe es W W N Y B R A W N O Y N N R W N Y m o Defendants clearly know whether they have video surveillance and or if someone caught the Incident on video. However, Defendants fail to provide a straight forward response. Defendant should be ordered to provide a full and complete and non-evasive responses and without objections to this Request for Admission and where appropriate to amend their response to the concomitant Form Interrogatory 17.1. REASON NO FURTHER RESPONSE TO REQUEST NO. 8 IS WARRANTED: On August 31, 2018, F & R served Amended Responses to Plaintiff Adam Nicholson’s Request for Admissions, Set One. Specifically contained therein, Defendant provided an amended response to this request. Therefore, Plaintiffs argument for why a further response is necessary is inapplicable, and no longer valid. Consequently, Defendant should not be required to provide a further response to this request. REQUEST FOR ADMISSION NO.9: There was a video recording of the INCIDENT. RESPONSE TO REQUEST FOR ADMISSION NO.9: This responding party does not have enough knowledge or information sufficient to admit or deny this request, though a reasonable and diligent effort has been made to comply. Lindgren v. Sup. Ct (1965), 237 Cal.App.2d 743. REASON FOR A FURTHER RESPONSE TO REQUEST NO. 9: This request seeks to gain information as to Plaintiffs injuries and liability of the Defendant via video footage. Additionally, “inability to admit” pursuant to pursuant to CCP § 2033.220, requires a detailed reason under oath, otherwise itis considered in bad-faith, justifying sanctions. 21- Separate Statement in Support of Opposition to Plaintiff Adam Nicholson’s Motion to Compel Further RFA N O 0 1 O N i n B L N B R O N N N R R N R N R R N re m e m e e e d b b pe d pe ed p e e b p e 0 J N R W N = O D O N Y R A W N O Even if a party shows a lack of personal knowledge but has “sources available and fails to make a reasonable investigation it shows...lack of good reason for the failure to admit and supports sanction award.” Wimberly v. Derby Cycle Corp (1997) 56 Cal.App.4th 618, 634-5. Objecting based on lack of personal knowledge is insufficient if access to knowledge is reasonably available. Lindgreen v. Superior Court (1965) 237 Cal.App.2d 743, 746; Chodos v. Superior Court (1963) 215 Cal.App.2d 318, 323. This includes facts supporting their contentions which can arguably be considered “attorney work-product”. Burke v. Superior Court (1969) 71 Cal.2d 276. Smith v. Circle P. Ranch (1978), 87 Cal.App.3d 267, 275. [If information available, there is no good reason for denial and sanctions are justified] The legislature intended to take the “game” element out of trial preparation while yet retaining the adversary nature oftrial itself. One ofthe principle purposes of discovery was to do away with the sporting theory oflitigation-namely surprise at trial.” Chronicle Pub. Co v. Superior Court (1960) 54 Cal. 2d, 548,561, See also page (572 citing to United States v. Procter & Gamble Co. (1958), 356 U.S. 677 [Discovery tends to “make trial less of a game of blind man’s bluff and more a fair contest with basic issues and facts disclosed to the fullest practicable extent.”] Plaintiff is absolutely entitled to seek Defendant’s contentions as to liability. Burke v. Superior Court (1969) 71 Cal.2d 276. Objections based on the lack of personal knowledge are insufficient if access to knowledge is reasonably available. Lindgreen v. Superior Court 1965) 237 Cal.App.2d 743, 746; Chodos v. Superior Court 1963) 215 Cal.App.2d 318, 323. The courts have specifically held that one even has an obligation to consult with their experts when responding to discovery. Tehachapi-Cummings County Water Dist. v. Superior Court (1968) 267 Cal.App.2d 42; See 22- Separate Statement in Support of Opposition to Plaintiff Adam Nicholson’s Motion to Compel Further RFA N O 0 3 O N n n B A W N B Y R N D N ) r m e m p e d e d e m pe ed pe ed p d e e d p e t B N = O O 0 0 N N T R W N ) e e O O 24 25 26 27 28 also, Sigerseth v. Superior Court (1972) 23 Cal.App.3d 427 [Sanctions imposed for party’s refusal to obtain information from its own expert to answer interrogatories]. Defendantsclearly know whether they have video surveillance and or if someone caught the Incident on video. However, Defendants fail to provide a straight forward response. Defendant should be ordered to provide a full and complete and non-evasive responses and without objections to this Request for Admission and where appropriate to amendtheir response to the concomitant Form Interrogatory 17.1. REASON NO FURTHER RESPONSE TO REQUEST NO. 9 IS WARRANTED: On August 31, 2018, F & R served Amended Responses to Plaintiff Adam Nicholson’s Request for Admissions, Set One. Specifically contained therein, Defendant provided an amended response to this request. Therefore, Plaintiffs argument for why a further response is necessary is inapplicable, and no longervalid. Consequently, Defendant should not be required to provide a further response to this request. DATED: November 26, 2018 Poliquin & DeGrave LLP DOUGLAS M. DeGRAVE APRIL C. BALANGUE Attorneys for Defendant, F & R REAL ESTATE, INC. 223- Separate Statement in Support of Opposition to Plaintiff Adam Nicholson’s Motion to Compel Further RFA O O © ~ N O N W n B A W N N N N D N N N N N N N H m e m a a e a a o e a p m o O 9 O A U n B R A W N = O 0 N N N D R W = o PROOF OF SERVICE [ am employed in the County of Orange,State of California. I amover the age of 18 and not a party to the within action; my business address is 22972 Mill Creek Drive, Laguna Hills, California 92653. On November 26, 2018, I served the foregoing document(s) described as DEFENDANT’S RESPONSE TO PLAINTIFF ADAM NICHOLSON’S SEPARATE STATEMENT OF DISCOVERY ITEMS IN DISPUTE IN SUPPORT OF OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR ADMISSIONS, SET ONE on the interested parties in this action by placing: [ ] the originals; [X] true copies; thereof enclosed in sealed envelopes addressed as follows: SEE ATTACHED SERVICE LIST [X] (BY OVERNIGHT MAIL): I deposited in a box or other facility regularly maintained by FEDERAL EXPRESS, or delivered to an authorized courier or driver authorized by FEDERAL EXPRESS to receive documents, in an envelope or package designated by FEDERAL EXPRESS. Executed on November 26, 2018 at Laguna Hills, California. [X] (STATE): I declare under penalty of perjury under the laws ofthe State of California that the above is true and correct. NORMA A. STEWART 24- Separate Statement in Support of Opposition to Plaintiff Adam Nicholson’s Motion to Compel Further RFA Ww W 1 y y n n R W N D B R N N N N N N N N N F E e e e m m E e e d p e d e e e d e e d C W N A N n h B A W N O N O O N B W N e O O SERVICE LIST Daniel Geoulla, Esq. B & D LAW GROUP, APLC 10700 Santa Monica Blvd., Suite 200 Los Angeles, CA 90025 Office: (310) 424-5252 Fax: (310) 492-5855 E-Mail: mahsa@bdinjurylawgroup.com Gregory@bdinjurylawgroup.com ATTORNEY FOR PLAINTIFFS, MARY BARENO and ADAM NICHOLSON David Koob, Esq. DONNA LAW FIRM PC 7601 France Avenue South 350 Minneapolis, MN 55435 Office: (952) 562-2460 Fax: (952) 562-2461 E-Mail: dkoob@donnalaw.com ATTORNEYS FOR DEFENDANTS, ADVANCE STORES COMPANY, INC,, ESA ADVANCE AUTO PARTS, CARQUEST AUTO PARTS Robert Bergsten, Esq. HOSP GILBERT & BERGSTEN 301 N. Lake Avenue, Suite 410 Pasadena, CA 91101 Office: (626) 792-2400 Fax: (626) 356-9656 ATTORNEYS FOR DEFENDANT, VAD ENTERPRISES, INC. DBA RANCHO AUTO AND TRUCK PARTS 25- Separate Statement in Support of Opposition to Plaintiff Adam Nicholson’s Motion to Compel Further RFA