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Electrunically
Su penur Court nf-Eallfarnm, Cnu nry n! San Maren
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0N 1 1/7/201 9
J. Edward Kerley (175695) By [5,!Mia Marlowe
Schaffer (1 536 1 2) Deputy Clerk
Dylan L.
Kerley Schaffer LLP
1939 Harrison Street, #500
Oakland, California 946 1 2
Telephone: (5 1 O) 379-5801
Facsimile: (510) 228-0350
Attorneys for Plaintiffs
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN MATEO
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DONNA MARIE MESCHI, VINCENT Case N0. 16CIV02607
11 MESCHI, individuals, 0n behalf 0f
themselves and a class 0f similarly situated CLASS ACTION
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persons, and ROES 1-10.
PLAINTIFFS’ OPPOSITION TO
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Plaintiffs, MERCURY'S MOTION TO COMPEL
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FURTHER RESPONSES TO REQUESTS
V. FOR ADMISSION AND FORM
15 INTERROGATORIES
MERCURY CASUALTY COMPANY, a
16 corporation, CALIFORNIA
AUTOMOBILE INSURANCE Date: November 21, 2019
17 COMPANY, a corporation, MERCURY Time: 2:00 p.m.
INUSRANCE SERVICES, LLC., a limited Dept. 22
18 liability corporation, and DOES 3-10,
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Defendants.
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Opposition t0 Mercury Motion re Requests for Admission
INTRODUCTION
Plaintiffs oppose Mercury Casualty Company's ("Mercury") Motion to Compel Further
Responses to Requests for Admission (“RFA”) and Corresponding Form Interrogatories
(“FROG”). Mercury's motion targets three RFAs, and three corresponding FROGS. Mercury
must now concede amendments to Plaintiffs' responses have mooted the motion as to all three
RFAS, and two of the three FROG responses at issue. Thus, what is leftfor the Court to compel
is a single FROG response.
As appears, the motion isprocedurally defective as it does not include a separate
statement. It issubstantively unavailing because While Mercury now must concede there is but
10 one discovery response at issue (i.e., the FROG response), the carrier never argues the response
11 itself is deficient. Finally, any dispute not litigable—it amounts t0 a disagreement between the
12 parties as to the contents 0f the FROG response, not its adequacy 0r code compliance. The Court
13 should deny the motion.
14 Finally, as Plaintiffs went t0 extraordinary lengths t0 avoid this law and motion practice,
15 have provided the responses Mercury's motion sought in a code-compliant form, and because the
16 motion is both procedurally defective and has been asserted without substantial justification, the
17 Court should impose sanctions on Mercury and itscounsel as set forth in the accompanying
18 Declaration of Dylan Schaffer.
19 FACTSI
20 Plaintiffs served responses to Mercury's first set 0f requests for admissions and form
21 interrogatories on February 8, 2019. After a meet and confer process, Plaintiffs served amended
22 responses on April 8, 2019. Plaintiffs lodged objections as to Requests #4, #6, and #8. In
23 Plaintiffs' amended FROG responses, they explained the bases for their objections?
24 Mercury filed its motion to compel as t0 both RFAS and FROGS, including a request for
25 sanctions, on May 3 1 ,
2019. Mercury's motion (and request for sanctions) was targeted the three
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A11 facts are supported by the accompanying Declaration of Dylan Schaffer ISO Plaintiffs'
27 Opposition t0 Mercury's Motion t0 Compel.
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28 Schaffer Declaration, para. 2, 3.
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Opposition t0 Mercury Motion re Requests for Admission
requests for admissions: #4, #6, and #8, together with accompanying FROG #17.1 responses,
Which are intended t0 obtain an explanation Why a litigant fails t0 provide an unqualified
admission to any request for admission.3
To avoid further litigation 0f this motion, and after additional discussion With counsel for
Mercury, on July 18, 2019, Plaintiffs served second-amended responses to both RFAs and
FROGs. In those 2nd amended responses t0 the RFAs, Plaintiffs provided responses to requests
#6 (denied) and #8 (admitted). Plaintiffs continued to take the View that request #4 was so poorly
framed that a response was impossible, and thus relied on obj ections that had been timely
asserted. Plaintiffs likewise supplemented their responses to the FROGS.4
10 On August 29, 2019, because counsel for Plaintiffs believed With the service of the
11 second amended responses Plaintiffs had addressed the issues raised by Mercury's motion,
12 counsel wrote t0 urge Mercury to Withdraw its motion t0 compel.5
13 On September 9, 2019, counsel for Mercury (Mr. Dahm) responded t0 reject the request.
14 Mercury's lawyer argued that its RFA #4 was not obj ectionable. Counsel also asserted that
15 Plaintiffs had failed t0 provide an answer t0 Mercury's RFA #8, Which was wrong as Plaintiffs
16 had provided such an answer in their second-amended responses.6
17 The same day (September 9, 2019) counsel for Plaintiffs wrote to point out the error in
18 Mr. Dahm's correspondence. Plaintiffs also sought clarification because Mercury's
19 correspondence was unclear as to the basis for its continued belief that, except for RFA #4, a
20 motion to compel further responses was justified.7 Counsel for Mercury never responded to the
21 correspondence, a blatant failure to meet and confer very much consistent with Mercury's
22 conduct throughout this litigationg
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Schaffer Declaration, para. 5
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Schaffer Declaration, para. 6, 7.
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Schaffer Declaration, para. 8
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Schaffer Declaration, para. 9.
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27 Schaffer Declaration, para. 10.
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28 Schaffer Declaration, para. 11.
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Opposition t0 Mercury Motion re Requests for Admission
After this Court asked the parties at the CMC t0 d0 their best to resolve differences in
good faith, 0n September 28, 2019, Plaintiffs' lawyer again wrote t0 counsel for Mercury t0
address itspending motion to compel further responses to RFAs and FROGs. In that
correspondence, counsel for Plaintiffs set forth the relevant history of the meet and confer
process.9 Plaintiffs noted that the only remaining target 0f the motion was Mercury's RFA #4 and
corresponding FROG #17. 1. Then, to try to avoid the time and expense associated With the
litigation of this motion, Plaintiffs offered to serve third-amended responses as applies t0 RFA
#4, in Which while maintaining the obj ections, they would deny the request, and supply an
explanation for the obj ections and denial in the corresponding FROG 17.1 response.”
10 Mercury did not respond, a further failure to meet and confer.“
11 On October 12, 2019, although Mercury had not agreed t0 Withdraw itsmotion, and had
12 never bothered to respond to Plaintiffs' correspondence 0n the issue, Plaintiffs served third
13 amended responses to both RFAs and FROGS, in Which they addressed the only remaining
14 subj ect 0f Mercury's motion t0 compel—i.e., Plaintiffs denied RFA #4, and provided a full
15 explanation of the denial in the corresponding RFA #17.1 response.”
16 Eleven days later, on October 23, 2019, having still failed t0 Withdraw its motion,
17 Mercury wrote to state its belief that, "As to RFA No.4, itappears that the Third Amended
18 Responses stilld0 not completely address the reason for denying the RFA. RFA No. 4 does not
19 refer to amounts paid by the insured; itrefers t0 amounts reasonably paid t0 the insured."13
20 Again, attempting t0 avoid this motion, 0n October 23, 2019, counsel for Plaintiffs
21 responded that the email continued t0 fail to acknowledge Plaintiffs' amendments. For example,
22 Plaintiffs had now provided a denial as t0 RFA #4. Mr. Dahm appeared not t0 be aware of the
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Schaffer Declaration, para. 12.
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Schaffer Declaration, para. 13.
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Schaffer Declaration, para. 14.
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27 Schaffer Declaration, para. 15.
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28 Schaffer Declaration, para. 16.
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Opposition t0 Mercury Motion re Requests for Admission
amendment. 14
Counsel for Plaintiffs further explained that as Plaintiffs had provided an explanation in
their FROG #17.1 response Vis a Vis the RFA #4 denial, Mercury's remedy was not a motion to
compel but, in the event itprevailed 0n this issue at trial,a motion for cost of proof sanctions.
Plaintiffs had provided their explanation and it remained unclear What an order t0 compel could
accomplish. The Court, under the right circumstances, can impose sanctions as cost of proof; it
cannot, however, force a party to admit a request for admission, 0r compel a further response t0
the FROG #17.1 request simply because the propounding party does not like the responding
party's response.” That dispute is resolved post-trial, if appropriate.
10 Since Plaintiffs' final correspondence 0n the issue, Mercury has not responded,
11 Withdrawn itsmotion, 0r amended its motion t0 Withdraw any 0f the factual assertions 0r
12 arguments that n0 longer apply given amendments by Plaintiff t0 the relevant requests for
13 admission and related form interrogatories.“
14 ARGUMENT
15 I. The Court should deny Mercury's motion because it isprocedurally defective.
16 CRC 3.1345 provides that "Any motion involving the content of a discovery request or
17 the responses t0 such a request must be accompanied by a separate statement." Mercury has
18 submitted no separate statement in support of its motion to compel.
19 If itwere not for Mercury's history of discovery abuse and obstructionism in this case, the
20 Court might be inclined t0 treat that failure t0 comply with the rules as a forgivable oversight, a
21 technical error—just as the Court did when, for example, it permitted Mercury t0 oppose the
22 prior motion for discovery abuse although it had failed (as the rules require) to challenge the
23 Court's tentative order.”
24 But as the prior award of sanctions, and the pending motion for discovery abuse should
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Schaffer Declaration, para. 17.
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Schaffer Declaration, para. 18.
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27 Schaffer Declaration, para. 19.
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28 TX ofMarch 15, 2019, p.3:4-5:6.
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Opposition t0 Mercury Motion re Requests for Admission
make abundantly clear, Mercury and itscounsel d0 not believe the rules that govern civil
discovery apply t0 the carrier 0r its lawyers. Itspresent motion to compel isn0 exception. Other
litigants must take the time to prepare a separate statement. Plaintiffs did so When they submitted
their omnibus motion to compel. Mercury and its lawyers believe they are excused from such
nuisances, and that the Court will have endless patience for such rule Violations.
But that should not be the case. Indeed, this Court previously made very clear to Mercury
that further such conduct would not be acceptable. Now is the time, finally, t0 insist that Mercury
and its experienced attorneys join the rest 0f us in treating the rules as applying to both sides in
this case. The Court should deny the motion as procedurally defective and award sanctions.
10 II. The Court should deny Mercury's motion because Plaintiffs have now provided
admissions 0r denials as t0 all requests and provided substantive responses t0
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concomitant FROGs #17.1 requests.
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The parties had a dispute about three 0f Mercury's requests for admission, RFAS #4, #6
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and #8, and corresponding form interrogatories. Mercury's motion seeks the Court's order
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compelling further responses as t0 those six requests. But both prior t0 the filing 0f the motion,
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and since that time, Plaintiffs amended, providing substantive, code-complaint answers to all siX
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requests. The pending motion ismoot. The Court should deny it.
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In its final correspondence on the issue, Mercury seems t0 assert that it can permissibly
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maintain its motion to compel because itdisagrees with Plaintiffs' response to its FROGS #17.1,
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as applies solely t0 itsRequests for Admission, #4.” In his correspondence (eleven days after the
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fact) Mr. Dahm acknowledged the third amended responses, Which were intended t0 resolve the
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remaining dispute between the parties, thus avoiding this motion. Mercury's lawyer then refused
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to Withdraw the motion, based 0n the following assertion: "As t0 RFA No.4, it appears that the
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Third Amended Responses still do not completely address the reason for denying the RFA. RFA
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No. 4 does not refer t0 amounts paid by the insured; it refers t0 amounts reasonably paid to the
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insured.
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27 Schaffer Declaration, Exhibit J.
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28 Schaffer Declaration, para. 16.
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Opposition t0 Mercury Motion re Requests for Admission
The assertion is confusing—as Plaintiffs denied RFA #4, the argument cannot be that the
response is inadequate. Rather, What Mercury appears t0 be arguing is that the motion survives
because the carrier disagrees With Plaintiffs' explanation for the denial that appears in the third
amended responses t0 its FROGs. Its position isthat the Court can compel a further response to
the form interrogatory.
Four responses are in order.
First, so there can be no mistaking the Court's focus in resolving Mercury's motion, the
carrier's sole remaining argument for application 0f the Court's oversight applies t0 the contents
of Plaintiffs' third amended responses t0 its FROGS #17.1, regarding solely RFA #4. Mercury's
10 correspondence (October 23, 2019 — Schaffer Declaration, Exhibit I),makes clear all that is left
11 is the FROGS response.”
12 Second, Mercury's motion never really argues the remaining point—that is,the FROG
13 17.1 response as applies t0 RFA #4. Rather, its argument” requests that the Court order
14 Plaintiffs t0 admit 0r deny its RFA #4. Plaintiffs have done so. There isnothing t0 compel.
15 Third, Mercury misunderstands Plaintiffs' obligation under the code, and the appropriate
16 limits of the Court's power in this circumstance. Plaintiffs' duty ist0 provide a response (Vis a Vis
17 the form interrogatory) that is "as complete and straightforward as the information reasonably
18 available to the responding party permits. If an interrogatory cannot be answered completely, it
19 shall be answered t0 the extent possible?” Plaintiffs must "state the truth, the Whole truth, and
20 nothing but the truth in answering written interrogatories.”23
21 Plaintiffs have provided a code compliant response t0 FROG #17.1 (as applies t0 RFA
22 #4).“ Mercury may disagree With Plaintiffs' explanation for their denial of the parallel RFA. But
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24 See Mercury Motion t0 Compel, Supporting Memorandum, Sections II (requesting order as to
RFA #6, Which is now moot), III (requesting order as t0 RFA #8, Which is now moot).
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Mercury Motion to Compel, Supporting Memorandum, p.6:15-7:6.
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CCP §2030.220(a), (b).
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27 Scheiding v. Dinwiddie Const. C0., 69 Cal.Ap.4th 64, 76 (1999).
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28 Schaffer Declaration, Exhibit H, p.6:7-7:1 1.
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Opposition t0 Mercury Motion re Requests for Admission
they cannot insist 0n a diflerem‘ explanation simply because the one provided is not consistent
With its View 0f the case. Plaintiffs made this point in a response t0 Mr. Dahm's October 23,
2019, email—Mercury never replied.”
Finally, Plaintiffs' FROG response is more than sufficient t0 avoid an order compelling a
further response. As Plaintiffs argued in their extensive defense 0f the original obj ections, the
request is so poorly worded that it isnot at all clear what isbeing requested, and therefore not
clear What is being admitted 0r denied. Here is the request:
"T0 determine Whether, as applied by defendant, the provisions in Section I—Conditions,
Paragraph 4, Loss Settlement, Subsection b.,Full Value, and Definitions, Paragraph 18 of the
10 POLICIES amounted t0 unlawful, unfair and/or fraudulent business acts or practices during the
11 RELEVANT TIME PERIOD, as alleged in the Second Cause 0f Action 0f the Complaint, the
12 court 0r jury in this case must determine whether defendant did not pay each individual member
13 of the PROPOSED CLASS the amounts reasonably paid by them t0 replace damaged, destroyed
14 0r stolen property for Which they made claims under the CONTENTS coverage in the
15 POLICIES, but instead paid the lesser of the amount reasonably expended by the member 0f the
16 PROPOSED CLASS and defendant's own calculation of the cost, at the time of loss, 0f a new
17 article identical to the one damaged, destroyed or stolen."
18 The request is an exercise ispoor drafting. Itcontains four separate defined terms, which
19 require reference to lengthy definitions. It contains a host of improperly compound references.
20 The request is so long and has so many conditional phrases that, as Plaintiffs argued in the
21 extensive meet and confer process, any response at all is essentially valueless. In the event
22 Mercury were eventually t0 pursue a cost 0f proof motion, itwould lose, because the request is
23 impossible t0 understand. The obj ections would be sustained.
24 A11 0f that being the case, still,to avoid this motion practice, Plaintiffs agreed t0 respond
25 t0 Mercury's RFA #4 With a denial, While preserving the obj ections. Thus, as set forth, the only
26 issue isWhether the Court should compel a further response as t0 the FROG 17.1 request. But the
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Opposition t0 Mercury Motion re Requests for Admission
response is complete and non-conclusionary. It isnot clear what more can be expected 0f
Plaintiffs. The response, among other things, notes:
The request is improper, and the class is improperly described because the stated
class period, Which Mercury defines in its definition of RELEVANT TIME
PERIOD iswrong;
The request is improperly compound and complex, as well as vague, ambiguous,
and unintelligible;
The request is rendered ambiguous by use 0f the word "determine" because it is
unclear whether Mercury intends a finding at the certification stage, or trial;
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Substantively, the request misses the central point 0f the allegations in the
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complaint, which isthat absent a showing of reasonableness by Mercury,
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replacement cost benefits are payable based on the amount actually spent 0n a
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14 particular item by the insured. In other words, the denial is entirely proper
15 because contrary to the request, short 0f proof that Mercury conducted a
16 reasonableness review of each item purchased by the insured, as to each item
17 Mercury owes the difference between What itpaid in benefit and what the insured
18 paid t0 replace the covered item.
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As set forth, in the event it prevails at trial,Mercury can pursue a cost of motion for cost
20 0f proof sanctions. In that context it can argue Plaintiffs' denial was improper and that it is
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entitled the fees expended t0 prove the truth of its request. What itcannot do, by way of motion
22 that Plaintiffs provide an admission, or that they defend their denial in a
t0 compel, is to insist
23 manner suited to Mercury. A motion 0n the issue Will ripen in the event Mercury prevails at trial
24 on the issue as t0 Which the carrier has requested an admission.
25 III. The Court should award sanctions t0 Plaintiffs.
26 Mercury's request for sanctions is confusing.
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Opposition t0 Mercury Motion re Requests for Admission
The carrier says Plaintiffs failed to meet and confer. The accompanying Declaration 0f
Dylan Schaffer makes clear the assertion is wrong. Also, pursuant to the statute upon Which the
motion proceeds, the Court iswithout power to award sanctions for a failure to meet and
confer.26 Sanctions are appropriate if either the moving party, 0r the opposing party, iswithout
substantial justification for itsposition.
Mercury also argues the Court should award sanctions because the responses "were
insufficient considering the complexity 0f this case and considering the importance of pre-
certification discoveryfm Of course, the code does not provide for sanctions in the event 0f
insuflicient responses. Rather, the code mandates sanctions if the party bringing the motion, or
10 opposing it,does so Without substantial justification.
11 As appears, given that standard, sanctions should be awarded t0 Plaintiffs.28
12 First, Mercury will have t0 admit that the motion, as presently before the Court, seeks
13 further responses as t0 five of six responses that were long ago provided in a code-compliant
14 manner. Plaintiffs have satisfied Mercury as t0 RFAS #4, #6 and #8 and as t0 FROGS #17.1,
15 relating to RFA responses #6 and #8. The only matter that remain in dispute is Mercury's motion
16 as to FROGS #17. l/RFA #4. Thus, there can now be no dispute that as to five-sixths of the
17 present motion, Mercury isproceeding without substantial justification.
18 Second, as to the remaining dispute, Mercury's motion is procedurally defective such that
19 itwas brought Without substantial justification. Mercury failed to support the motion With a
20 separate statement as California law requires. It has n0 excuse for failing to comply with the law
21 as it applies to the filing 0f a motion to compel.
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24 See CCP sections 2030.300, 2033.290.
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Mercury Motion to Compel, Supporting Memorandum, p.9:3-4.
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Mercury's sanctions request is also internally conflicting, seeking three different amounts in
26 three separate pleadings, t0 Wit: Mr. Dahm's declaration says the court should award $3674.
(Dahm Declaration, para. 12.) Mercury's memorandum seeks only $2040. (Mercury Motion t0
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Compel, Supporting Memorandum, p.911 1-12.) Mercury's notice of motion and motion seeks yet
28 another amount, $3734. (Mercury Notice 0f Motion and Motion, p.22 1 .)
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Opposition t0 Mercury Motion re Requests for Admission
Third, as discussed in detail above, the motion (in other words, as relates t0 the single
discovery response left in dispute) is being pursued without substantial justification, such that
sanctions should be awarded to Plaintiffs. Plaintiffs went t0 great lengths t0 satisfy Mercury.
A They repeatedly sought to meet and confer and were often ignored by Mercury's counsel.
Plaintiffs eventually provided answers across the board t0 requests for admission they continue
“OLA
to believe are poorly and ambiguously framed, simply to work With Mercury and avoid law and
motion. Mercury refused to budge. And as t0 the single FROG response as to Which Mercury
maintains its motion and request for (various) sanction amounts, the response is complete and
not conclusory. It is code compliant.
10 Mercury should long ago have withdrawn the present motion. Its failure t0 d0 so warrants
11 an award of sanctions against Mercury and its lawyers, as set forth in the accompanying
12 declaration 0f Dylan Schaffer.
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Date: November 7, 2019 Kerley Schaffer LLP
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Dyl L. Schaffer
Attorneys for Plaintiffs
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Opposition to Mercury Motion re Requests for Admission
PROOF OF SERVICE
I declare that I am over the age 0f 18 years and not a party to this action. My business
address is 1939 Harrison Street, #500, Oakland, CA 94612. On November 7, 2019, I served
the following on the interested parties in this action:
PLAINTIFFS’ OPPOSITION TO MERCURY'S MOTION TO COMPEL FURTHER
RESPONSES TO REQUESTS FOR ADMISSION AND FORM INTERROGATORIES
DECLARATION OF DYLAN SCHAFFER IN SUPPORT OF PLAINTIFFS’
OPPOSITION TO MERCURY MOTION TO COMPEL FURTHER RESPONSES TO
REQUESTS FOR ADMISSION AND FORM INTERROGATORIES
PLAINTIFFS’ OPPOSITION TO MERCURY MOTION FOR A PROTECTIVE ORDER
DECLARATION OF DYLAN SCHAFFER IN SUPPORT OF PLAINTIFFS’
OPPOSITION TO MERCURY MOTION FOR A PROTECTIVE ORDER
10 Ian A. Fraser—Thomson
Stephen Dahm
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Cesari, Werner & Moriarty
75 Southgate Avenue
12 Daly CA 94105
City,
ift@cwmlaw.com
13 sdahm@cwmlaw.com
Attorneysfor Mercury Casually Company,
14 California Automobile Insurance Company, and
Mercury Insurance Services, LLC.
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MAIL: By placing such documents(s) in a sealed envelope, with postage prepaid for
first class mail, for collection and mailing at Oakland California following ordinary business
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practice for deposit With United States Postal Service.
FAX: By causing to be transmitted the documents by use 0f fax machine telephone
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number (510)228-0350_t0 the parties at the facsimile numbers listed on the service list above.
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The fax machine used complies with California Rule of Court 2.301. The transmission was
reported as complete and 110 error was reported by the machine. I caused the transmitting
20 machine to print a record of the transmission, a copy 0f Which is attached to this declaration.
E-MAIL: By electronic mail t0 the addresses noted above
DE
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FEDEX: By placing for overnight delivery such documents(s) in a facility or box that is
regularly maintained by FedEx.
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HAND DELIVERY: Caused t0 be hand delivered.
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Proof of Service
I declare under penalty of perjury under the laws of the State of California and the United
States that the foregoing is true, and if called as a witness Icould testify competently thereto. This
declaration was executed on November 7, 2019, at Oakland, California.
Tiffan ha
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Proof of Service
Preview
Electrunically Su penur Court nf-Eallfarnm, Cnu nry n! San Maren b}- 0N 1 1/7/201 9 J. Edward Kerley (175695) By [5,!Mia Marlowe Schaffer (1 536 1 2) Deputy Clerk Dylan L. Kerley Schaffer LLP 1939 Harrison Street, #500 Oakland, California 946 1 2 Telephone: (5 1 O) 379-5801 Facsimile: (510) 228-0350 Attorneys for Plaintiffs SUPERIOR COURT FOR THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN MATEO 10 DONNA MARIE MESCHI, VINCENT Case N0. 16CIV02607 11 MESCHI, individuals, 0n behalf 0f themselves and a class 0f similarly situated CLASS ACTION 12 persons, and ROES 1-10. PLAINTIFFS’ OPPOSITION TO 13 Plaintiffs, MERCURY'S MOTION TO COMPEL 14 FURTHER RESPONSES TO REQUESTS V. FOR ADMISSION AND FORM 15 INTERROGATORIES MERCURY CASUALTY COMPANY, a 16 corporation, CALIFORNIA AUTOMOBILE INSURANCE Date: November 21, 2019 17 COMPANY, a corporation, MERCURY Time: 2:00 p.m. INUSRANCE SERVICES, LLC., a limited Dept. 22 18 liability corporation, and DOES 3-10, 19 Defendants. 20 21 22 23 24 25 26 27 28 1 Opposition t0 Mercury Motion re Requests for Admission INTRODUCTION Plaintiffs oppose Mercury Casualty Company's ("Mercury") Motion to Compel Further Responses to Requests for Admission (“RFA”) and Corresponding Form Interrogatories (“FROG”). Mercury's motion targets three RFAs, and three corresponding FROGS. Mercury must now concede amendments to Plaintiffs' responses have mooted the motion as to all three RFAS, and two of the three FROG responses at issue. Thus, what is leftfor the Court to compel is a single FROG response. As appears, the motion isprocedurally defective as it does not include a separate statement. It issubstantively unavailing because While Mercury now must concede there is but 10 one discovery response at issue (i.e., the FROG response), the carrier never argues the response 11 itself is deficient. Finally, any dispute not litigable—it amounts t0 a disagreement between the 12 parties as to the contents 0f the FROG response, not its adequacy 0r code compliance. The Court 13 should deny the motion. 14 Finally, as Plaintiffs went t0 extraordinary lengths t0 avoid this law and motion practice, 15 have provided the responses Mercury's motion sought in a code-compliant form, and because the 16 motion is both procedurally defective and has been asserted without substantial justification, the 17 Court should impose sanctions on Mercury and itscounsel as set forth in the accompanying 18 Declaration of Dylan Schaffer. 19 FACTSI 20 Plaintiffs served responses to Mercury's first set 0f requests for admissions and form 21 interrogatories on February 8, 2019. After a meet and confer process, Plaintiffs served amended 22 responses on April 8, 2019. Plaintiffs lodged objections as to Requests #4, #6, and #8. In 23 Plaintiffs' amended FROG responses, they explained the bases for their objections? 24 Mercury filed its motion to compel as t0 both RFAS and FROGS, including a request for 25 sanctions, on May 3 1 , 2019. Mercury's motion (and request for sanctions) was targeted the three 26 1 A11 facts are supported by the accompanying Declaration of Dylan Schaffer ISO Plaintiffs' 27 Opposition t0 Mercury's Motion t0 Compel. 2 28 Schaffer Declaration, para. 2, 3. 2 Opposition t0 Mercury Motion re Requests for Admission requests for admissions: #4, #6, and #8, together with accompanying FROG #17.1 responses, Which are intended t0 obtain an explanation Why a litigant fails t0 provide an unqualified admission to any request for admission.3 To avoid further litigation 0f this motion, and after additional discussion With counsel for Mercury, on July 18, 2019, Plaintiffs served second-amended responses to both RFAs and FROGs. In those 2nd amended responses t0 the RFAs, Plaintiffs provided responses to requests #6 (denied) and #8 (admitted). Plaintiffs continued to take the View that request #4 was so poorly framed that a response was impossible, and thus relied on obj ections that had been timely asserted. Plaintiffs likewise supplemented their responses to the FROGS.4 10 On August 29, 2019, because counsel for Plaintiffs believed With the service of the 11 second amended responses Plaintiffs had addressed the issues raised by Mercury's motion, 12 counsel wrote t0 urge Mercury to Withdraw its motion t0 compel.5 13 On September 9, 2019, counsel for Mercury (Mr. Dahm) responded t0 reject the request. 14 Mercury's lawyer argued that its RFA #4 was not obj ectionable. Counsel also asserted that 15 Plaintiffs had failed t0 provide an answer t0 Mercury's RFA #8, Which was wrong as Plaintiffs 16 had provided such an answer in their second-amended responses.6 17 The same day (September 9, 2019) counsel for Plaintiffs wrote to point out the error in 18 Mr. Dahm's correspondence. Plaintiffs also sought clarification because Mercury's 19 correspondence was unclear as to the basis for its continued belief that, except for RFA #4, a 20 motion to compel further responses was justified.7 Counsel for Mercury never responded to the 21 correspondence, a blatant failure to meet and confer very much consistent with Mercury's 22 conduct throughout this litigationg 23 3 Schaffer Declaration, para. 5 24 4 Schaffer Declaration, para. 6, 7. 25 5 Schaffer Declaration, para. 8 26 6 Schaffer Declaration, para. 9. 7 27 Schaffer Declaration, para. 10. 8 28 Schaffer Declaration, para. 11. 3 Opposition t0 Mercury Motion re Requests for Admission After this Court asked the parties at the CMC t0 d0 their best to resolve differences in good faith, 0n September 28, 2019, Plaintiffs' lawyer again wrote t0 counsel for Mercury t0 address itspending motion to compel further responses to RFAs and FROGs. In that correspondence, counsel for Plaintiffs set forth the relevant history of the meet and confer process.9 Plaintiffs noted that the only remaining target 0f the motion was Mercury's RFA #4 and corresponding FROG #17. 1. Then, to try to avoid the time and expense associated With the litigation of this motion, Plaintiffs offered to serve third-amended responses as applies t0 RFA #4, in Which while maintaining the obj ections, they would deny the request, and supply an explanation for the obj ections and denial in the corresponding FROG 17.1 response.” 10 Mercury did not respond, a further failure to meet and confer.“ 11 On October 12, 2019, although Mercury had not agreed t0 Withdraw itsmotion, and had 12 never bothered to respond to Plaintiffs' correspondence 0n the issue, Plaintiffs served third 13 amended responses to both RFAs and FROGS, in Which they addressed the only remaining 14 subj ect 0f Mercury's motion t0 compel—i.e., Plaintiffs denied RFA #4, and provided a full 15 explanation of the denial in the corresponding RFA #17.1 response.” 16 Eleven days later, on October 23, 2019, having still failed t0 Withdraw its motion, 17 Mercury wrote to state its belief that, "As to RFA No.4, itappears that the Third Amended 18 Responses stilld0 not completely address the reason for denying the RFA. RFA No. 4 does not 19 refer to amounts paid by the insured; itrefers t0 amounts reasonably paid t0 the insured."13 20 Again, attempting t0 avoid this motion, 0n October 23, 2019, counsel for Plaintiffs 21 responded that the email continued t0 fail to acknowledge Plaintiffs' amendments. For example, 22 Plaintiffs had now provided a denial as t0 RFA #4. Mr. Dahm appeared not t0 be aware of the 23 24 9 Schaffer Declaration, para. 12. 25 10 Schaffer Declaration, para. 13. 26 11 Schaffer Declaration, para. 14. 12 27 Schaffer Declaration, para. 15. 13 28 Schaffer Declaration, para. 16. 4 Opposition t0 Mercury Motion re Requests for Admission amendment. 14 Counsel for Plaintiffs further explained that as Plaintiffs had provided an explanation in their FROG #17.1 response Vis a Vis the RFA #4 denial, Mercury's remedy was not a motion to compel but, in the event itprevailed 0n this issue at trial,a motion for cost of proof sanctions. Plaintiffs had provided their explanation and it remained unclear What an order t0 compel could accomplish. The Court, under the right circumstances, can impose sanctions as cost of proof; it cannot, however, force a party to admit a request for admission, 0r compel a further response t0 the FROG #17.1 request simply because the propounding party does not like the responding party's response.” That dispute is resolved post-trial, if appropriate. 10 Since Plaintiffs' final correspondence 0n the issue, Mercury has not responded, 11 Withdrawn itsmotion, 0r amended its motion t0 Withdraw any 0f the factual assertions 0r 12 arguments that n0 longer apply given amendments by Plaintiff t0 the relevant requests for 13 admission and related form interrogatories.“ 14 ARGUMENT 15 I. The Court should deny Mercury's motion because it isprocedurally defective. 16 CRC 3.1345 provides that "Any motion involving the content of a discovery request or 17 the responses t0 such a request must be accompanied by a separate statement." Mercury has 18 submitted no separate statement in support of its motion to compel. 19 If itwere not for Mercury's history of discovery abuse and obstructionism in this case, the 20 Court might be inclined t0 treat that failure t0 comply with the rules as a forgivable oversight, a 21 technical error—just as the Court did when, for example, it permitted Mercury t0 oppose the 22 prior motion for discovery abuse although it had failed (as the rules require) to challenge the 23 Court's tentative order.” 24 But as the prior award of sanctions, and the pending motion for discovery abuse should 25 14 Schaffer Declaration, para. 17. 26 15 Schaffer Declaration, para. 18. 16 27 Schaffer Declaration, para. 19. 17 28 TX ofMarch 15, 2019, p.3:4-5:6. 5 Opposition t0 Mercury Motion re Requests for Admission make abundantly clear, Mercury and itscounsel d0 not believe the rules that govern civil discovery apply t0 the carrier 0r its lawyers. Itspresent motion to compel isn0 exception. Other litigants must take the time to prepare a separate statement. Plaintiffs did so When they submitted their omnibus motion to compel. Mercury and its lawyers believe they are excused from such nuisances, and that the Court will have endless patience for such rule Violations. But that should not be the case. Indeed, this Court previously made very clear to Mercury that further such conduct would not be acceptable. Now is the time, finally, t0 insist that Mercury and its experienced attorneys join the rest 0f us in treating the rules as applying to both sides in this case. The Court should deny the motion as procedurally defective and award sanctions. 10 II. The Court should deny Mercury's motion because Plaintiffs have now provided admissions 0r denials as t0 all requests and provided substantive responses t0 11 concomitant FROGs #17.1 requests. 12 The parties had a dispute about three 0f Mercury's requests for admission, RFAS #4, #6 13 and #8, and corresponding form interrogatories. Mercury's motion seeks the Court's order 14 compelling further responses as t0 those six requests. But both prior t0 the filing 0f the motion, 15 and since that time, Plaintiffs amended, providing substantive, code-complaint answers to all siX 16 requests. The pending motion ismoot. The Court should deny it. 17 In its final correspondence on the issue, Mercury seems t0 assert that it can permissibly 18 maintain its motion to compel because itdisagrees with Plaintiffs' response to its FROGS #17.1, 19 as applies solely t0 itsRequests for Admission, #4.” In his correspondence (eleven days after the 20 fact) Mr. Dahm acknowledged the third amended responses, Which were intended t0 resolve the 21 remaining dispute between the parties, thus avoiding this motion. Mercury's lawyer then refused 22 to Withdraw the motion, based 0n the following assertion: "As t0 RFA No.4, it appears that the 23 Third Amended Responses still do not completely address the reason for denying the RFA. RFA 24 No. 4 does not refer t0 amounts paid by the insured; it refers t0 amounts reasonably paid to the 25 " 19 insured. 26 18 27 Schaffer Declaration, Exhibit J. 19 28 Schaffer Declaration, para. 16. 6 Opposition t0 Mercury Motion re Requests for Admission The assertion is confusing—as Plaintiffs denied RFA #4, the argument cannot be that the response is inadequate. Rather, What Mercury appears t0 be arguing is that the motion survives because the carrier disagrees With Plaintiffs' explanation for the denial that appears in the third amended responses t0 its FROGs. Its position isthat the Court can compel a further response to the form interrogatory. Four responses are in order. First, so there can be no mistaking the Court's focus in resolving Mercury's motion, the carrier's sole remaining argument for application 0f the Court's oversight applies t0 the contents of Plaintiffs' third amended responses t0 its FROGS #17.1, regarding solely RFA #4. Mercury's 10 correspondence (October 23, 2019 — Schaffer Declaration, Exhibit I),makes clear all that is left 11 is the FROGS response.” 12 Second, Mercury's motion never really argues the remaining point—that is,the FROG 13 17.1 response as applies t0 RFA #4. Rather, its argument” requests that the Court order 14 Plaintiffs t0 admit 0r deny its RFA #4. Plaintiffs have done so. There isnothing t0 compel. 15 Third, Mercury misunderstands Plaintiffs' obligation under the code, and the appropriate 16 limits of the Court's power in this circumstance. Plaintiffs' duty ist0 provide a response (Vis a Vis 17 the form interrogatory) that is "as complete and straightforward as the information reasonably 18 available to the responding party permits. If an interrogatory cannot be answered completely, it 19 shall be answered t0 the extent possible?” Plaintiffs must "state the truth, the Whole truth, and 20 nothing but the truth in answering written interrogatories.”23 21 Plaintiffs have provided a code compliant response t0 FROG #17.1 (as applies t0 RFA 22 #4).“ Mercury may disagree With Plaintiffs' explanation for their denial of the parallel RFA. But 23 20 24 See Mercury Motion t0 Compel, Supporting Memorandum, Sections II (requesting order as to RFA #6, Which is now moot), III (requesting order as t0 RFA #8, Which is now moot). 25 21 Mercury Motion to Compel, Supporting Memorandum, p.6:15-7:6. 26 22 CCP §2030.220(a), (b). 23 27 Scheiding v. Dinwiddie Const. C0., 69 Cal.Ap.4th 64, 76 (1999). 24 28 Schaffer Declaration, Exhibit H, p.6:7-7:1 1. 7 Opposition t0 Mercury Motion re Requests for Admission they cannot insist 0n a diflerem‘ explanation simply because the one provided is not consistent With its View 0f the case. Plaintiffs made this point in a response t0 Mr. Dahm's October 23, 2019, email—Mercury never replied.” Finally, Plaintiffs' FROG response is more than sufficient t0 avoid an order compelling a further response. As Plaintiffs argued in their extensive defense 0f the original obj ections, the request is so poorly worded that it isnot at all clear what isbeing requested, and therefore not clear What is being admitted 0r denied. Here is the request: "T0 determine Whether, as applied by defendant, the provisions in Section I—Conditions, Paragraph 4, Loss Settlement, Subsection b.,Full Value, and Definitions, Paragraph 18 of the 10 POLICIES amounted t0 unlawful, unfair and/or fraudulent business acts or practices during the 11 RELEVANT TIME PERIOD, as alleged in the Second Cause 0f Action 0f the Complaint, the 12 court 0r jury in this case must determine whether defendant did not pay each individual member 13 of the PROPOSED CLASS the amounts reasonably paid by them t0 replace damaged, destroyed 14 0r stolen property for Which they made claims under the CONTENTS coverage in the 15 POLICIES, but instead paid the lesser of the amount reasonably expended by the member 0f the 16 PROPOSED CLASS and defendant's own calculation of the cost, at the time of loss, 0f a new 17 article identical to the one damaged, destroyed or stolen." 18 The request is an exercise ispoor drafting. Itcontains four separate defined terms, which 19 require reference to lengthy definitions. It contains a host of improperly compound references. 20 The request is so long and has so many conditional phrases that, as Plaintiffs argued in the 21 extensive meet and confer process, any response at all is essentially valueless. In the event 22 Mercury were eventually t0 pursue a cost 0f proof motion, itwould lose, because the request is 23 impossible t0 understand. The obj ections would be sustained. 24 A11 0f that being the case, still,to avoid this motion practice, Plaintiffs agreed t0 respond 25 t0 Mercury's RFA #4 With a denial, While preserving the obj ections. Thus, as set forth, the only 26 issue isWhether the Court should compel a further response as t0 the FROG 17.1 request. But the 27 25 28 Schaffer Declaration, para, 17, 18. 8 Opposition t0 Mercury Motion re Requests for Admission response is complete and non-conclusionary. It isnot clear what more can be expected 0f Plaintiffs. The response, among other things, notes: The request is improper, and the class is improperly described because the stated class period, Which Mercury defines in its definition of RELEVANT TIME PERIOD iswrong; The request is improperly compound and complex, as well as vague, ambiguous, and unintelligible; The request is rendered ambiguous by use 0f the word "determine" because it is unclear whether Mercury intends a finding at the certification stage, or trial; 10 Substantively, the request misses the central point 0f the allegations in the 11 complaint, which isthat absent a showing of reasonableness by Mercury, 12 replacement cost benefits are payable based on the amount actually spent 0n a 13 14 particular item by the insured. In other words, the denial is entirely proper 15 because contrary to the request, short 0f proof that Mercury conducted a 16 reasonableness review of each item purchased by the insured, as to each item 17 Mercury owes the difference between What itpaid in benefit and what the insured 18 paid t0 replace the covered item. 19 As set forth, in the event it prevails at trial,Mercury can pursue a cost of motion for cost 20 0f proof sanctions. In that context it can argue Plaintiffs' denial was improper and that it is 21 entitled the fees expended t0 prove the truth of its request. What itcannot do, by way of motion 22 that Plaintiffs provide an admission, or that they defend their denial in a t0 compel, is to insist 23 manner suited to Mercury. A motion 0n the issue Will ripen in the event Mercury prevails at trial 24 on the issue as t0 Which the carrier has requested an admission. 25 III. The Court should award sanctions t0 Plaintiffs. 26 Mercury's request for sanctions is confusing. 27 28 9 Opposition t0 Mercury Motion re Requests for Admission The carrier says Plaintiffs failed to meet and confer. The accompanying Declaration 0f Dylan Schaffer makes clear the assertion is wrong. Also, pursuant to the statute upon Which the motion proceeds, the Court iswithout power to award sanctions for a failure to meet and confer.26 Sanctions are appropriate if either the moving party, 0r the opposing party, iswithout substantial justification for itsposition. Mercury also argues the Court should award sanctions because the responses "were insufficient considering the complexity 0f this case and considering the importance of pre- certification discoveryfm Of course, the code does not provide for sanctions in the event 0f insuflicient responses. Rather, the code mandates sanctions if the party bringing the motion, or 10 opposing it,does so Without substantial justification. 11 As appears, given that standard, sanctions should be awarded t0 Plaintiffs.28 12 First, Mercury will have t0 admit that the motion, as presently before the Court, seeks 13 further responses as t0 five of six responses that were long ago provided in a code-compliant 14 manner. Plaintiffs have satisfied Mercury as t0 RFAS #4, #6 and #8 and as t0 FROGS #17.1, 15 relating to RFA responses #6 and #8. The only matter that remain in dispute is Mercury's motion 16 as to FROGS #17. l/RFA #4. Thus, there can now be no dispute that as to five-sixths of the 17 present motion, Mercury isproceeding without substantial justification. 18 Second, as to the remaining dispute, Mercury's motion is procedurally defective such that 19 itwas brought Without substantial justification. Mercury failed to support the motion With a 20 separate statement as California law requires. It has n0 excuse for failing to comply with the law 21 as it applies to the filing 0f a motion to compel. 22 23 26 24 See CCP sections 2030.300, 2033.290. 27 Mercury Motion to Compel, Supporting Memorandum, p.9:3-4. 25 28 Mercury's sanctions request is also internally conflicting, seeking three different amounts in 26 three separate pleadings, t0 Wit: Mr. Dahm's declaration says the court should award $3674. (Dahm Declaration, para. 12.) Mercury's memorandum seeks only $2040. (Mercury Motion t0 27 Compel, Supporting Memorandum, p.911 1-12.) Mercury's notice of motion and motion seeks yet 28 another amount, $3734. (Mercury Notice 0f Motion and Motion, p.22 1 .) 10 Opposition t0 Mercury Motion re Requests for Admission Third, as discussed in detail above, the motion (in other words, as relates t0 the single discovery response left in dispute) is being pursued without substantial justification, such that sanctions should be awarded to Plaintiffs. Plaintiffs went t0 great lengths t0 satisfy Mercury. A They repeatedly sought to meet and confer and were often ignored by Mercury's counsel. Plaintiffs eventually provided answers across the board t0 requests for admission they continue “OLA to believe are poorly and ambiguously framed, simply to work With Mercury and avoid law and motion. Mercury refused to budge. And as t0 the single FROG response as to Which Mercury maintains its motion and request for (various) sanction amounts, the response is complete and not conclusory. It is code compliant. 10 Mercury should long ago have withdrawn the present motion. Its failure t0 d0 so warrants 11 an award of sanctions against Mercury and its lawyers, as set forth in the accompanying 12 declaration 0f Dylan Schaffer. W 13 Date: November 7, 2019 Kerley Schaffer LLP 14 15 16 M Dyl L. Schaffer Attorneys for Plaintiffs V 17 18 19 20 21 22 23 24 25 26 27 28 11 Opposition to Mercury Motion re Requests for Admission PROOF OF SERVICE I declare that I am over the age 0f 18 years and not a party to this action. My business address is 1939 Harrison Street, #500, Oakland, CA 94612. On November 7, 2019, I served the following on the interested parties in this action: PLAINTIFFS’ OPPOSITION TO MERCURY'S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR ADMISSION AND FORM INTERROGATORIES DECLARATION OF DYLAN SCHAFFER IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO MERCURY MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR ADMISSION AND FORM INTERROGATORIES PLAINTIFFS’ OPPOSITION TO MERCURY MOTION FOR A PROTECTIVE ORDER DECLARATION OF DYLAN SCHAFFER IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO MERCURY MOTION FOR A PROTECTIVE ORDER 10 Ian A. Fraser—Thomson Stephen Dahm 11 Cesari, Werner & Moriarty 75 Southgate Avenue 12 Daly CA 94105 City, ift@cwmlaw.com 13 sdahm@cwmlaw.com Attorneysfor Mercury Casually Company, 14 California Automobile Insurance Company, and Mercury Insurance Services, LLC. 15 16 MAIL: By placing such documents(s) in a sealed envelope, with postage prepaid for first class mail, for collection and mailing at Oakland California following ordinary business 17 practice for deposit With United States Postal Service. FAX: By causing to be transmitted the documents by use 0f fax machine telephone 18 number (510)228-0350_t0 the parties at the facsimile numbers listed on the service list above. 19 The fax machine used complies with California Rule of Court 2.301. The transmission was reported as complete and 110 error was reported by the machine. I caused the transmitting 20 machine to print a record of the transmission, a copy 0f Which is attached to this declaration. E-MAIL: By electronic mail t0 the addresses noted above DE 21 FEDEX: By placing for overnight delivery such documents(s) in a facility or box that is regularly maintained by FedEx. 22 HAND DELIVERY: Caused t0 be hand delivered. 23 24 -1- Proof of Service I declare under penalty of perjury under the laws of the State of California and the United States that the foregoing is true, and if called as a witness Icould testify competently thereto. This declaration was executed on November 7, 2019, at Oakland, California. Tiffan ha 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 -2- Proof of Service