IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF LOS ANGELES ) )

Transcription

1 1 C.D. Michel- SBN W. Lee Smith - SBN Scott M. Franklin - SBN MICHEL & ASSOCIATES, P.C East Ocean Boulevard, Suite 200 Long Beach, CA Telephone: ( Facsimile: ( Attorneys for Defendant San 6 Gabriel Valley Gun Club 7 ORIGINAL FILED SEP LOS ANGELES 8UrERtOR COURT 8 9 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF LOS ANGELES 10 EAST DISTRICT 11 CALMAT CO. dba VULCAN MATERIAL COMPANY, WESTERN DIVISION, a 12 Delaware corporation, vs. Plaintiff, SAN GABRIEL V ALLEY GUN CLUB, a non-profit California corporation; and DOES , inclusive, Defendants CASE NO: KC SEPARATE STATEMENT OF DISPUTED ISSUES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES (SET ONE Han. R. Bruce Minto, presiding (Matter Reassigned from Han. Dan T Oki Date: October 2,2012 Time: 8:30 a.m. Dept.: H 19 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 20 Defendant San Gabriel Valley Gun Club ("SGVGC" or the "Club" hereby submits the 21 following Separate Statement pursuant to California Rules of Court, rule , in support of the 22 Club's Motion to Compel Further Responses to Form Interrogatories (Set One. 24 Form Interrogatory No. 9.1: 25 Are there any other damages that you attribute to the INCIDENT? If so, for each item of 26 damage state: (a (b the nature; the date it occurred; 1

2 1 2 3 (c (d the amount; and the name, ADDRESS, and telephone number of each PERSON to whom an obligation was incurred Response to Form Interrogatory No. 9.1: In addition to the General Objections set forth above, Vulcan objects to this Interrogatory to the extent that it seeks information that is not relevant to the subject matter of this action nor reasonably calculated to lead to the discovery of admissible evidence. Vulcan further objects to this Interrogatory to the extent that it seeks information protected by the attorney-client privilege, the attorney work-product doctrine or any other applicable privilege. Subject to the foregoing objections and the Preliminary Statement and General Objections set forth above and incorporated herein, and without waiving the same, Vulcan responds as follows: Not other than stated in the Complaint. Further Response to Form Interrogatory No. 9.1: Subject to and without waiving the foregoing objections, Vulcan further responds as follows: (a Nature of Damages: (1 Damages associated with the costs incurred for investigating, assessing, monitoring and remediating the Contamination; (2 loss of property value incurred due to the existence of the Contamination including but not limited to, loss of permanent value as caused by the stigma of environmental contamination; (3 loss offuture rent; (4 costs to repair and restore the Azusa Property and neighboring properties to proper condition; (5 statutory costs; (6 punitive and exemplary damages; (7 treble damages; and (8 attorney's fees and costs of suit. (b Approximately January 1947 to November 2006 (c A minimum of $6,720, (d Calmat Co. dba Vulcan Materials Company, Western Division, a Delaware Corporation who can be contacted through the above-captioned counsel. Reason Why Second Further Response to Form Interrogatory No. 9.1 Is Required: This form interrogatory inquires as to four subcategories of information ((each item of damage[.]" (Emphasis added. The further response provided groups all damage amounts into a 2

3 1 single sum: $6,720, A second further response needs to be provided to respond to the specific 2 question asked, i.e., a response that states the amount of damages sought for each item of damages 3 listed in Vulcan's further response to Form Interrogatory 9.1(a. See Civ. Proc. Code (a- 4 (b (interrogatory responses must be as complete and straightforward as the information reasonably 5 available to the responding party permits". 6 7 Form Interrogatory No. 9.2: 8 Do any DOCUMENTS support the existence or amount of any item of damages claimed in 9 interrogatory 9.1? Ifso, state the name, ADDRESS, and telephone number of the PERSON who has 10 each DOCUMENT. 11 Response to Form Interrogatory No. 9.2: 12 In addition to the General Objections set forth above, Vulcan objects to this Interrogatory to 13 the extent that it seeks information that is not relevant to the subject matter of this action nor 14 reasonably calculated to lead to the discovery of admissible evidence. Vulcan further objects to this 15 Interrogatory to the extent that it seeks information protected by the attorney-client privilege, the 16 attorney work-product doctrine or any other applicable privilege. Subject to the foregoing objections 17 and the Preliminary Statement and General Objections set forth above and incorporated herein, and 18 without waiving the same, Vulcan responds as follows: 19 Not Applicable. 20 Further Response to Form Interrogatory No. 9.2: 21 Subject to and without waiving the foregoing objections, Vulcan further responses as follows: 22 The following Lease Agreements which are in the possession of Vulcan who can be contacted through the above-captioned counsel: Lease - January 1, August 31, Lease - August 31, January 1, Lease - January 1, August 31, Lease - September 1, December 10, Lease - December 11, December 11,

4 Lease - December 11, February 3, Lease - February 4, May 19, Lease - May 20, 1992, as amended on May 15, November 6, Reason Why Second Further Response to Form Interrogatory No. 9.2 Is Required: 5 This form interrogatory seeks to identify persons in possession of documents supporting the 6 existence of damages identified in Form Interrogatory 9.1, and it implicitly requires Vulcan to identify 7 all such documents. Vulcan's further response lists nothing other than leases that are in the 8 possession of Vulcan's counsel. To list only leases when there are certain damage-related documents 9 available (attorney's billings, receipts re: costs of suit, etc. is evasive and incomplete. A further 10 response is required to meet Vulcan's duty under the Code of Civil Procedure. See Civ. Proc. Code (a-(b (interrogatory responses must be "as complete and straightforward as the 12 information reasonably available to the responding party permits" Form Interrogatory No re: Request for Admission No. IS 15 Admit that at VULCAN had no contractual right to enter the PROPERTY to dump material 16 on the PROPERTY between June 17, 1987 and May 19, (Response: Deny The predicate question for all 17.1 interrogatories is as follows, and the key inquiry is that of Form Interrogatory 17.1 (b. 19 Is your response to each request for admission served with these interrogatories an 20 unqualified admission? Ifnot, for each response that is not an unqualified admission: (a (b (c state the number of the request; 24 who have knowledge of those facts; and state all facts upon which you base your response; state the names, ADDRESSES, and telephone numbers of all PERSONS (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. (Italics added, oher emphasis in original. 4

5 1 Response to Form Interrogatorv No re: Request for Admission No. 18: 2 (Plaintiff failed to provide a substantive response to Request for Admission 18 in its initial 3 response to the Club's Request for Admissions (Set One, so Vulcan's first substantive response to 4 Form Interrogatory 17.1 as to this particular request for admission is actually the "further" response 5 directly below. 6 Further Response to Form Interrogatory No re: Request for Admission No. 18: 7 (b Nothing contractually prohibited Vulcan from entering "the PROPERTY to dump material 8 on the PROPERTY between June 17, 1987 and May 19, 1992." 9 (c Brian Ferris - can be contacted through the above-captioned counsel 10 Herb Bock Freeborn Street Bradbury, California Richard Phillips Shasta Place El Monte, California 14 John Armato - can be contacted through Defendant's counsel 15 Brian Anderson - can be contacted through the above-captioned counsel 16 (d The documents supporting Vulcan's response to this Request for Admission are each of 17 the Leases (as previously defined at issue in this Complaint. 18 Reason Why Further Response Is Required: 19 Vulcan avoids the question at issue, and fails to Cite a lease provision that gave it the right to 20 enter on the subject property (a trespass, if unauthorized. Further, Vulcan has no basis for claiming 21 that "Nothing contractually prohibited Vulcan from entering "the PROPERTY to dump material on 22 the PROPERTY between June 17, 1987 and May 19,1992." Indeed, the existence ofa lease itself, unless it has an express provision to the contrary, contractually prohibits the conduct at issue. See 24 Kaiser Co. Reid, 30 Cal. 2d 610,618 (1947. If Vulcan does not provide a further response that 25 actually supports its response to Request for Admission 18 or change the response to that request to 26 an admission, Vulcan will be knowingly violating the relevant discovery law. Civ. Proc. Code ;

6 1 Form Interrogatory No re: Requests for Admission Nos : 2 Request for Admission No. 52: Admit that, prior to May 20, 1992, VULCAN never indicated 3 to THE CLUB that the DRAFT LEASE PROVISION was intended to address SPENT 4 AMMUNITION. (Response: Deny 5 Request for Admission No. 53: Admit that, prior to May 20, 1992, VULCAN never indicated 6 to THE CLUB that the DRAFT LEASE PROVISION was intended to address lead bullets that had 7 been fired at the PROPERTY. (Response: Deny 8 Request for Admission No. 54: Admit that, prior to 2005, VULCAN never indicated to THE 9 CLUB that the DRAFT LEASE PROVISION was intended to address SPENT AMMUNITION. 10 (Response: Deny 11 Further Responses to Form Interrogatory No re: Requests for Admission Nos Request for Admission 52: 14 (b Herb Bock testified at his deposition in the Federal Litigation that during the negotiation 15 of the 1992 lease, the Gun Club knew that the DRAFT LEASE PROVISION could address SPENT 16 AMMUNITION and that the Gun Club "did not want Vulcan to tell [it]... what type of ammunition 17 [it] could use on the range." Bock Depo at 56: (c Herb Bock Freeborn Street 20 Bradbury, California (d Bock Deposition transcript which is in the possession of the Club. 22 Request for Admission 53: (b Herb Bock testified at his deposition in the Federal Litigation that during the negotiation 24 of the 1992 lease, the Gun Club knew that the DRAFT LEASE PROVISION could address lead 25 bullets that had been fired at the Property and that the Gun Club "did not want Vulcan to tell [it] what type of ammunition [it] could use on the range." Bock Depo at 56: (c Herb Bock Freeborn Street 6

7 1 Bradbury, California (d Bock Deposition transcript which is in the possession of the Club. 3 Request for Admission 54: 4 (b Herb Bock testified at his deposition in the Federal Litigation that during the negotiation 5 of the 1992 lease, the Gun Club knew that the DRAFT LEASE PROVISION could address SPENT 6 AMMUNITION and that the Gun Club "did not want Vulcan to tell [it]... what type of ammunition 7 [it] could use on the range." Bock Depo at 56: (c Herb Bock 9 31 Freeborn Street 10 Bradbury, California (d Bock Deposition transcript which is in the possession of the Club. 12 Reason Why Second Further Responses Are Required: 13 Put simply, the responses at issue are not true, based on the document cited, i.e., the transcript 14 of the deposition of Herb Bock, at 56: The cited testimony, and the context surrounding it, 15 makes it clear that his understanding was, at best, that Vulcan was intending to limit the type of 16 ammunition could be brought onto the subject property, not what type of spent ammunition could be 17 left at the property. E.g., "I do remember that they didn't want to give Vulcan the authority to dictate 18 what type of ammunition or propellant powers and stuff like that we could bring on the premises." 19 (Bock Deposition at 55: 19-. If Vulcan does not provide a further response that actually supports 20 its response to Requests for Admission Nos or change the responses to those requests to 21 admissions, Vulcan will be knowingly violating the relevant discovery law. Civ. Proc. Code ; Further Response to FI 17.1 re: Request for Admission No. 60: 25 Admit that VULCAN did not seek permission from THE CLUB to create the WASTE PILE. 26 (Response: Deny 27 Response to FI 17.1 re: Request for Admission No. 60: 28 (Plaintiff failed to provide a substantive response to Request for Admission 60 in its initial 7

8 1 response to the Club's Request for Admissions (Set One, so Vulcan's first substantive response to 2 Form Interrogatory 17.1 as to this particular request for admission is actually the "further" response 3 directly below. 4 Further Response to FI 17.1 re: Request for Admission No. 60: 5 (b Thomas Sheedy testified at his deposition in the Federal Litigation that after Vulcan made 6 the decision to create the WASTE PILE, he had a discussion with Rick Phillips at the Gun Club about 7 the creation of the WASTE PILE, including where it would be placed and the logistics of creating it. 8 Sheedy Depo. At 47:10-48:6. 9 ( c Thomas Sheedy La Canada Boulevard 11 La Canada-Flintridge, CA Rick Phillips Shasta Place 14 El Monte, California 15 (d Sheedy Deposition transcript which is in the possession of the Club. 16 Reason Why Second Further Response Is Required: 17 Vulcan fails to provide any basis for its denial: the fact that Tom Sheedy and Rick Phillips had 18 a discussion about the creation of the waste pile in no way addresses whether permission was sought 19 from SGVGC regarding the creation of the waste pile. If Vulcan does not provide a further response 20 that actually supports its response to Request for Admission 60 or change the response to that request 21 to an admission, Vulcan will be knowingly violating the relevant discovery law. Civ. Proc. Code ; Form Interrogatory No re Request for Admission No. 79: 25 Admit that VULCAN never made any comment about SPENT AMMUNITION at the 26 PROPERTY to THE CLUB's former attorney, Robert Carter. (Response: Deny 27 Response to FI 17.1 re: Request for Admission No. 79: 28 (Plaintiff failed to provide a substantive response to Request for Admission 79 in its initial 8

9 1 response to the Club's Request for Admissions (Set One, so Vulcan's first substantive response to 2 Form Interrogatory 17.1 as to this particular request for admission is actually the "further" response 3 directly below 4 Further Response to Form Interrogatory 17.1 re: Request for Admission No. 79 : 5 (b In the 1992 Draft Lease (Exhibit 4 to the Brian Ferris Deposition which was transmitted 6 to Robert Carter, Vulcan specifically included a provision specifically referring to spent ammunition 7 and the type of bullets used at the Property Draft Lease 9. Mr. Carter then responded to 8 Vulcan on February 24, 1992 (Exhibit 5 to Brian Ferris Deposition specifically regarding this 9 provision. On March 5, 1992, Vulcan responded to Mr. Carter regarding this provision. (Exhibit 6 10 to Brian Ferris Deposition. Then Vulcan and Mr. Carter had a telephone conversation regarding this 11 provision (Exhibit 7 to Brian Ferris Deposition. Ultimately, the Club and Vulcan signed a lease with 12 a modified version of this provision. (Exhibit 8 to Brian Ferris Deposition. 13 (c Brain Ferris - can be contacted through the above captioned counsel 14 Robert Carter - address unknown 15 Tom Jenkins Auburn Way 17 Claremont, CA 18 Phone: ( Tom Davis 20 Davis Consulting Services 21 P.O. Box Orange, California (d Brian Ferris Deposition Exhibits Reason Why Second Further Response to FI 17.1 re: RFA No. 79 Is Required: 25 None of the documents cited support the denial at issue. Specifically, none of the exhibits 26 refer to spent ammunition, and unless Vulcan is specifically representing that Brian Ferris remembers 27 discussing spent ammunition during the phone call referred to in Vulcan's response, this is an 28 insufficient response. If Vulcan does not provide a further response that actually supports its response 9

10 1 to response to Request for Admission 79 or change the response to that request to an admission, 2 Vulcan will be knowingly violating the relevant discovery law. Civ. Pro. Code ; Form Interrogatory 17.1 re: Request for Admission No. 80: 6 Admit that VULCAN never made any comment about lead bullets present at the PROPERTY 7 to THE CLUB's former attorney, Robert Carter. (Response: Deny. 8 Response to Form Interrogatory 17.1 re: Request for Admission No. 80 : 9 (Plaintiff failed to provide a substantive response to Request for Admission 80 in its initial 10 response to the Club's Request for Admissions (Set One, so Vulcan's first substantive response to 11 Form Interrogatory 17.1 as to this particular request for admission is actually the "further" response 12 directly below. 13 Further Response to Form Interrogatory 17.1 re: Request for Admission No. 80: 14 (b In the 1992 Draft Lease (Exhibit 4 to the Brian Ferris Deposition which was transmitted 15 to Robert Carter, Vulcan specifically included a provision specifically referring to spent ammunition 16 and the type of bullets used at the Property Draft Lease 9. Mr. Carter then responded to 17 Vulcan on February 24, 1992 (Exhibit 5 to Brian Ferris Deposition specifically regarding this 18 provision. On March 5, 1992, Vulcan responded to Mr. Carter regarding this provision. (Exhibit 6 19 to Brian Ferris Deposition. Then Vulcan and Mr. Carter had a telephone conversation regarding this 20 provision (Exhibit 7 to Brian Ferris Deposition. Ultimately, the Club and Vulcan signed a lease with 21 a modified version of this provision. (Exhibit 8 to Brian Ferris Deposition. 22 Reason Why Further Response Is Required: None of the documents cited support the denial at issue. Specifically, none of the exhibits 24 refer to lead bullets, and unless Vulcan is specifically representing that Brian Ferris remembers 25 discussing lead bullets during the phone call referred to in Vulcan's response, this is an insufficient 26 response. If Vulcan does not provide a further response that actually supports its response to 27 response to Request for Admission 80 or change the response to that request to an admission, Vulcan 28 will be knowingly violating the relevant discovery law. 10

11 1 Civ. Proc. Code ; Dated: September 10,2012 MICHEL & ASSOCIATES, P.C. (--ri--- / JII, Scott M. Franklin, attorney for San Gabriel ValleY Gun Club 11

12 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA 3 COUNTY OF LOS ANGELES 4 I, Christina Sanchez, am employed in the City of Long Beach, Los Angeles County, California. I am over the age eighteen (18 years and am not a party to the within action. My 5 business address is 180 East Ocean Blvd., Suite 200, Long Beach, California On September 10,2012, I served the foregoing document(s described as 7 SEPARATE STATEMENT OF DISPUTED ISSUES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES (SET ONE 8 on the interested parties in this action by placing 9 [ ] the original [X] a true and correct copy 10 thereof enclosed in sealed envelope( s addressed as follows: 11 Kenneth A. Ehrlich Elizabeth A. Culley 12 Jeffer, Mangels, Butler & Mitchell, LLP 1900 Avenue of the Stars, Seventh Floor 13 Los Angeles, CA (BY MAIL As follows: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under the practice it would be deposited with the 15 U.S. Postal Service on that same day with postage thereon fully prepaid at Long Beach, California, in the ordinary course of business. I am aware that on motion of the party 16 served, service is presumed invalid if postal cancellation date is more than one day after date of deposit for mailing an affidavit. 17 Executed on September 10, 2012, at Long Beach, California. 18 X 19 (PERSONAL SERVICE I caused such envelope to delivered by hand to the offices ofthe addressee. Executed on September 10,2012, at Long Beach, California A (OVERNIGHT MAIL As follows: I am "readily familiar" with the firm's practice of collection and processing correspondence for overnight delivery by UPS/FED-EX. Under the practice it would be deposited with a facility regularly maintained by UPS/FED-EX for receipt on the same day in the ordinary course of business. Such envelope was sealed and placed for collection and delivery by UPS/FED-EX with delivery fees paid or provided for in accordance. Executed on September 10,2012, at Long Beach, California. (STATE I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. CHRISTINA SANCHa C1'T' A 'T'r'~,fl-;lI.rT TC'(\ UTI' VHRTHF"R "RFSP. TO PI (SET ONE

13 FIRM: ;:~IZi~?1 Ell E: (':t f:!~i DO TODAY--+-_ / RETURN AUORNEY.s f'f (.~ ATIORNEY FILE # TODAY Mark X for special assignment(s. RUSH CHARGES APPLY,.. (i' PLAINTIFF: /i / VS.. DEFENDANT: (' { Ii {. I L!7 / COURT: t-. "- JUDICIAL DIST: f CITY: /}; ncr] A- J, IA TTO R19~J!.KYl~li INC 0 / bra 'r F I Long Beach Torrance Fax APPROVED DIRECT BILLING: CARRIER NAME: ADDRESS: CITY, STATE, & ZIP: ADJUSTER: INSURED: CLAIM NUMBER: DATE OF LOSS: LIST ALL DOCUMENTS: HEARING DATE FEES PAID/ DATE Ii ( 1/ Ii 1/'1-( r r r<, p h 57 Z 5> I.sIl'I--I- /lilt hlv-/1 7 0 r ( '//,J..- I! f'f.fl INSTRUCTIONS: FlLE BY DEPT. IMPORTANT FILE SERVE DELIVER COPY OTHER K CLERK /' '1 7.. ~ 1"// Sf SERVE BY / J Lr;:1 S{ f { L( cl?t(., / J A a J I S, 1 / \ ( d f /1 (' I I}' l L ('IU I I }LU I + C! I ( t I II,// ({I/' ((/1((.. >. U FEES ATTACHED -;L-~l--'!.:V PU1 O?:d' "I c;!:d r'r- COURT PROCESS "': DELIVERY ow~ t-r-e-t-u-r-n na n D RESIDENCE D BUSINESS, MALE FEMALE 'RACE AGE DATE RUNNEr CIT/CA3E ~ f:::c062;:.::;~ 7-<1-'.':'liU NO CONFORM CHAt-lGEi