Response_to_separate_statement

Response

Cal. Super. - 5th Dist.October 24, 2019

AN nn Bx W N 10 11 12 13 14 13 16 17 18 19 20 21 2) 23 24 23 26 27 28 SIAMAK VAZIRI, ESQ. [SBN. 242447] svaziri@vazirilaw.com DAVID SHAY, ESQ. [SBN. 241702] dshay @vazirilaw.com ALFONSO ORTEGA, ESQ. [SBN. 299434] aortega@vazirilaw.com FEDERICO STEA, ESQ. [SBN. 331293] aortega@vazirilaw.com VAZIRI LAW GROUP 5757 Wilshire Boulevard, Suite 670 Los Angeles, California 90036 Telephone: (310) 777-7540 Facsimile: (310) 777-0373 Attorneys for Plaintiff, LINDA MCCREARY ELECTRONICALLY FILED 7/7/2020 10:26 PM Kern County Superior Court By Maribel Villalon, Deputy SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF KERN —- METROPOLITIAN DIVISION LINDA MCCREARY, an individual, Plaintiff, VS. ABOVE ALL PROPERTY MANAGEMENT, LLC, and DOES 1 to 50, Inclusive; Defendants. Case No.: BCV-19-103038 Assigned to the Hon. David R. Lampe PLAINTIFF LINDA MCCREARY’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES (SET ONE) AND SPECIAL INTERROGATORIES (SET ONE) PROPOUNDED BY DEFENDANT ABOVE ALL PROPERTY MANAGEMENT, LLC. Hearing Date: July 20, 2020 Time: 8:30 a.m. Place: Dept. 11 Action Filed: October 24, 2019 Trial Date: Not Set TO ALL PARTIES AND THEIR COUNSEL OF RECORD: Plaintiff LINDA MCCREARY (“Plaintiff”) hereby submits her response to Defendant’s Separate Statement in support of Plaintiff’s Opposition to Defendant’s Motion to Compel Further Responses to Form Interrogatories (Set One) and Special Interrogatories (Set One) propounded by Defendant Above All Property Management, LLC. -1- PLAINTIFF'S OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES AN nn Bx W N 10 11 12 13 14 13 16 17 18 19 20 21 22 23 24 23 26 27 28 FORM INTERROGATORIES INTERROGATORY NO. 12.2: Have YOU OR ANYONE ACTING ON YOUR BEHALF interviewed any individual concerning the INCIDENT? If so, for each individual state: (a) the name, ADDRESS, and telephone number of the individual interviewed; (b) the date of the interview; and (©) the name, ADDRESS, and telephone number of the PERSON who conducted the interview. RESPONSE TO INTERROGATORY NO. 12.2: Yes. Plaintiff objects to this interrogatory to the extent it seeks information that is protected by any privilege, including but not limited to, the attorney-client privilege and the attorney work product doctrine. Plaintiff also objects to this interrogatory to the extent it seeks information that is protected by any privilege, including but not limited to, the attorney-client privilege and the attorney work product doctrine. Plaintiff further objects to this interrogatory to the extent it calls for the disclosure of information that concerns individuals who, or entities that, are not the subject of this action and are protected by rights of privacy under the Constitutions of the United States and the State of California, or any applicable law. Subject to and without waiving the foregoing objections, Plaintiff responds as follows: Plaintiff is in the possession of an investigative report prepared for and under the direction of her counsel of record and agrees to provide a privilege log within a reasonable time. REASON FURTHER RESPONSE IS REQUIRED TO INTERROGATORY NO. 12.2: The Discovery Code provides that “[i]f an objection [to a request for production] is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.” Cal. Civ. Proc. 2031.240(c)(1). Plaintiff should not be allowed to hide discoverable information from Defendant under a claim of privilege. Defendant 3 PLAINTIFF'S OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES AN nn Bx W N 10 11 12 13 14 13 16 17 18 19 20 21 22 23 24 23 26 27 28 has the right to a privilege log in order to evaluate the merits of her objections. Plaintiff agrees to provide a privilege log in her response to this request, yet fails to do so. Plaintiff’s response is just a false, empty statement of compliance. Plaintiff should be ordered to provide further code compliant response to Form Interrogatory, No. 12.2 with an accompanied privilege log. REASON FURTHER RESPONSE IS NOT REQUIRED TO INTERROGATORY NO. 12.2: The Court in Hernandez v. Superior Court (2003) 112 Cal. App.4th 285, 293, made it clear that a “privilege log” is unnecessary with regard to answering interrogatories seeking the identification of documents Plaintiff indicated that “yes” someone had been interviewed, and “Plaintiff is in the possession of an investigative report prepared for and under the direction of her counsel of record...” Clearly, Plaintiff is not “hiding the ball.” Plaintiff disclosed the existence of a document prepared for and at the direction of counsel, which is the epitome of documents that fall under the attorney work-product privilege. [Emphasis Added] INTERROGATORY NO. 12.3: Have YOU OR ANYONE ACTING ON YOUR BEHALF obtained a written or recorded statement from any individual concerning the INCIDENT? If so, for each statement state: (a) the name, ADDRESS, and telephone number of the individual from whom the statement was obtained; (b) the name, ADDRESS, and telephone number of the individual who obtained the statement; (©) the date the statement was obtained; and (d) the name, ADDRESS, and telephone number of each PERSON who has the original Statement or a copy. RESPONSE TO INTERROGATORY NO. 12.3: Yes. Plaintiff objects to this interrogatory to the extent it seeks information that is protected by any privilege, including but not limited to, the attorney-client privilege and the attorney work product doctrine. 3 PLAINTIFF'S OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES AN nn Bx W N 10 11 12 13 14 13 16 17 18 19 20 21 22 23 24 23 26 27 28 Plaintiff also objects to this interrogatory to the extent it seeks information that is protected by any privilege, including but not limited to, the attorney-client privilege and the attorney work product doctrine. Plaintiff further objects to this interrogatory to the extent it calls for the disclosure of information that concerns individuals who, or entities that, are not the subject of this action and are protected by rights of privacy under the Constitutions of the United States and the State of California, or any applicable law. Subject to and without waiving the foregoing objections, Plaintiff responds as follows: Plaintiff is in the possession of an investigative report prepared for and under the direction of her counsel of record and agrees to provide a privilege log within a reasonable time. REASON FURTHER RESPONSE IS REQUIRED TO INTERROGATORY NO. 12.3: The Discovery Code provides that “[i]f an objection [to a request for production] is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.” Cal. Civ. Proc. 2031.240(c)(1). Plaintiff should not be allowed to hide discoverable information from Defendant under a claim of privilege. Defendant has the right to a privilege log in order to evaluate the merits of her objections. Plaintiff agrees to provide a privilege log in her response to this request, yet fails to do so. Plaintiff’s response is just a false, empty statement of compliance. Plaintiff should be ordered to provide further code compliant response to Form Interrogatory, No. 12.3 with an accompanied privilege log. REASON FURTHER RESPONSE IS NOT REQUIRED TO INTERROGATORY NO. 12.3: The Court in Hernandez v. Superior Court (2003) 112 Cal. App.4th 285, 293, made it clear that a “privilege log” is unnecessary with regard to answering interrogatories seeking the identification of documents Plaintiff indicated that “yes” she had a written or recorded statement, which was part of a “report prepared for and under the direction of her counsel of record...” [Emphasis Added] Again, the document at issue clearly falls within the purview of the attorney work-product privilege. 111 4- PLAINTIFF'S OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES AN nn Bx W N 10 11 12 13 14 13 16 17 18 19 20 21 22 23 24 23 26 27 28 INTERROGATORY NO. 12.6: Was a report made by a PERSON concerning the INCIDENT? If so, state: (a) the name, title, identification number, and employer of the PERSON who made the report; (b) the date and type of report made; (©) the name, ADDRESS, and telephone number of the PERSON for whom the report was made; and (d) the name, ADDRESS, and telephone number of each PERSON who has the original or a copy of the report. RESPONSE TO INTERROGATORY NO. 12.6: Yes. Plaintiff objects to this interrogatory to the extent it seeks information that is protected by any privilege, including but not limited to, the attorney-client privilege and the attorney work product doctrine. Plaintiff also objects to this interrogatory to the extent it seeks information that is protected by any privilege, including but not limited to, the attorney-client privilege and the attorney work product doctrine. Plaintiff further objects to this interrogatory to the extent it calls for the disclosure of information that concerns individuals who, or entities that, are not the subject of this action and are protected by rights of privacy under the Constitutions of the United States and the State of California, or any applicable law. Subject to and without waiving the foregoing objections, Plaintiff responds as follows: Plaintiff is in the possession of an investigative report prepared for and under the direction of her counsel of record and agrees to provide a privilege log within a reasonable time. REASON FURTHER RESPONSE IS REQUIRED TO INTERROGATORY NO. 12.6: The Discovery Code provides that “[i]f an objection [to a request for production] is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.” Cal. Civ. Proc. 2031.240(c)(1). Plaintiff should not -5- PLAINTIFF'S OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES AN nn Bx W N 10 11 12 13 14 13 16 17 18 19 20 21 2) 23 24 23 26 27 28 be allowed to hide discoverable information from Defendant under a claim of privilege. Defendant has the right to a privilege log in order to evaluate the merits of her objections. Plaintiff agrees to provide a privilege log in her response to this request, yet fails to do so. Plaintiff’s response is just a false, empty statement of compliance. Plaintiff should be ordered to provide further code compliant response to Form Interrogatory, No. 12.6 with an accompanied privilege log. REASON FURTHER RESPONSE IS NOT REQUIRED TO INTERROGATORY NO. 12.6: The Court in Hernandez v. Superior Court (2003) 112 Cal. App.4th 285, 293, made it clear that a “privilege log” is unnecessary with regard to answering interrogatories seeking the identification of documents Plaintiff responded with “yes” to indicate that a report was prepared as part of a “report prepared for and under the direction of her counsel of record...” Again, further details about the report are protected by the attorney work-product privilege. -6- PLAINTIFF'S OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES AN nn Bx W N 10 11 12 13 14 13 16 17 18 19 20 21 22 23 24 23 26 27 28 SPECIAL INTERROGATORIES INTERROGATORY NO. 10: DESCRIBE the dangerous condition that YOU contend caused YOUR injuries.2 FIRST RESPONSE TO INTERROGATORY NO. 10: Objection. This request is overly broad, unduly burdensome and oppressive as to the term “DESCRIBE the dangerous condition.” Further objection to the extent this request seeks prematurely seeks the disclosure of expert opinion. Further Objection. This request is vague and ambiguous so that the Plaintiff cannot in good faith frame an intelligent reply without speculation as to the meaning of the question. Further Objection. Defendant has not produced any documents or witnesses. Defendant is in possession of documents and testimony that would allow Plaintiff to provide a proper and/or allow Plaintiff to make contentions based on the testimony of the documents produced by the Defendant. Further Objection. This request seeks information protected from disclosure by the attorney-client privilege and the attorney work product doctrine. See Coito v. Superior Court 54 Cal. 4th 480 (2012). Subject to and without waiving the foregoing objections, Plaintiff responds as follows: On September 3, 2018, at the Dana Apartments, Defendants, their agents/employees so negligently owned, controlled, supervised, managed, maintained and operated said premises so as to proximately cause Plaintiff to fall, causing Plaintiffs injuries and related damages. At the time of the subject incident, Plaintiff was preparing to descend a stairway by grabbing onto the handrail. Upon grabbing onto the handrail, the handrail broke, causing Plaintiff to fall down the stairway. Defendants and each of them, as owners and operators of Dana Apartments negligently: a. Failed to maintain the stairway of Dana Apartments in a reasonably safe condition and breached their duty of care to their residents and guests by improperly installing a stairway handrail for use by Plaintiff and other invited residents and guests; A PLAINTIFF'S OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES AN nn Bx W N 10 11 12 13 14 13 16 17 18 19 20 21 22 23 24 23 26 27 28 b. Failed to maintain the stairway of Dana Apartments in a reasonably safe condition and breached their duty of care to their residents and guests by installing a handrail made of inadequate material(s) on a stairway for use by Plaintiff and other invited residents and guests; C. Failed to maintain the stairway of Dana Apartments in a reasonably safe condition and breached their duty of care to their residents and guests by failing to repair the stairway handrail used by Plaintiff and other invited residents and guests; d. Allowed a stairway handrail to become and remain unsecured when Defendants knew, or in the exercise of reasonable care should have known that an unsecured stairway handrail created an unreasonable risk of harm to its residents and guests in the areas that residents and guests walk through; e. Failed to warn Plaintiff and other invited residents and guests of Dana Apartments of the danger presented by the presence of a unsecured stairway handrail; f. Failed to install and/or block of the area where the unsafe stairway handrail was left untended; g. Failed to conduct routine inspections during normal business hours to ensure that no dangerous condition existed in an area where Plaintiff and other invited customers walked through; and h. Failed to otherwise exercise due care with respect to matters alleged in the complaint. Discovery and investigation continue, and Plaintiff reserves the right to supplement of amend this response. REASON FURTHER RESPONSE IS REQUIRED TO INTERROGATORY NO. 10: Plaintiff’s discovery responses generally consist of boilerplate, inapplicable objections and incomplete statements of compliance. Plaintiff's general objection based on vagueness and ambiguity, is without merit unless the question is wholly unintelligible. The answering party owes a duty to respond in good faith as best he or she can. Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783. To the extent information that Defendant seeks contain some private or privileged -8- PLAINTIFF'S OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES AN nn Bx W N 10 11 12 13 14 13 16 17 18 19 20 21 22 23 24 23 26 27 28 information, or some information that is not relevant to this case, the solution is simple and already has been proposed by Defendant. Plaintiff can list privileged or private files on a privilege log; Defendant and its expert will not evaluate those files. That said, permitting Plaintiff to hide behind privilege and privacy to conceal unquestionably relevant information is simply not the answer. Indeed, privacy is not absolute. Finally, Plaintiff’s substantive response to Special Interrogatories, No. 10 is evasive and nonsensical. The question asks a direct question, for Plaintiff to describe the thing that she contends caused her injury. Instead of answering this question, Plaintiff’s response, copied and pasted from her complaint, provides one deftly-worded, conclusory statement after another. REASON FURTHER RESPONSE IS NOT REQUIRED TO INTERROGATORY NO. 10: The Court in Hernandez v. Superior Court (2003) 112 Cal. App.4th 285, 293, made it clear that a “privilege log” is unnecessary with regard to answering interrogatories seeking the identification of documents Plaintiff provided a substantive response that described “the dangerous condition that [Plaintiff] contended caused [her] injuries.” Plaintiff represented that “[a]t the time of the subject incident, Plaintiff was preparing to descend a stairway by grabbing onto the handrail. Upon grabbing onto the handrail, the handrail broke, causing Plaintiff to fall down the stairway.” Defense counsel’s displeasure with the wording of the response is not a basis for a motion to compel; at least not under the current law. DATED: July 7, 2020 VAZIRI LAW GROUP /s/ Federico Stea _ SIAMAK VAZIRI, ESQ. DAVID C. SHAY, ESQ. ALFONSO ORTEGA, ESQ. FEDERICO STEA, ESQ. Attorney for Plaintiff, LINDA MCCREARY 9. PLAINTIFF'S OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES AN nn Bx W N 10 11 12 13 14 13 16 17 18 19 20 21 2) 23 24 23 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Los Angeles, State of California. My business address is 5757 Wilshire Blvd., Suite 670, Los Angeles, CA 90036. On 7/7/2020, I served true copies of the following document(s) described as PLAINTIFF LINDA MCCREARY’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES (SET ONE) AND SPECIAL INTERROGATORIES (SET ONE) PROPOUNDED BY DEFENDANT ABOVE ALL PROPERTY MANAGEMENT, LLC. on the interested parties in this action as follows: BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresses listed in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with Vaziri Law Group’s practice for collecting and processing correspondence for mailing. On the same day that the correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. VIA FACSIMILE: I faxed said documents, to the office(s) of the addressee(s) shown above, and the transmission was reported as complete and without error. __X__ BY ELECTRONIC TRANSMISSION: I transmitted a PDF version of this document by electronic mail to the party(s) identified on the attached service list using the e-mail address(es) indicated. BY OVERNIGHT DELIVERY: I deposition such envelope for collection and delivery by Golden State Overnight with delivery fees paid or provided for in accordance with ordinary business practices. I am “readily familiar” with the firm’s practice of collection and processing packages for overnight delivery by Golden State Overnight. They are deposited with a facility regularly maintained by Golden State Overnight for receipt on the same day in the ordinary course of business. __X__ (State): I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. (Federal): I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on 7/7/2020, at Los Angeles, California. /s/ Maureen Hillel Maureen Hillel -10- PLAINTIFF'S OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES AN nn Bx W N 10 11 12 13 14 13 16 17 18 19 20 21 2) 23 24 23 26 27 28 SERVICE LIST Linda McCreary v. Above All Property Management, LLC, Case No. BCV-19-103038 German A. Marcucci, Esq. Gabrielle H. Consolo, Esq. ROPERS MA JESKI, KOHN & BENTLEY 445 South Figueroa Street, Suite 3000 Los Angeles, California 90071-1619 Telephone: (213) 312-2000 Facsimile: (213) 312-2001 Electronic mail: gabrielle.consolo @ropers.com Attorneys for Defendant, Above All Property Management, LLC -11- PLAINTIFF'S OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES