Motion to compel further responses to Form Interrogatories; Motion to compel further responses to RFPs
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Although Defendants styles their motion as a motion for summary judgment or, in the alternative, summary adjudication, because Defendants’ motion papers do not comply with California Rule of Court 3.1350(b), the court must treat the motion solely as a motion for summary judgment. Rule 3.1350(b) states:
If made in the alternative, a motion for summary adjudication may make reference to and depend on the same evidence submitted in support of the summary judgment motion. If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.
Defendants’ moving papers do not comply with this rule. The motion for summary judgment identifies three issues on which Defendants evidently seek summary adjudication. Their separate statement, however, does not repeat verbatim any of those issues identified in the motion. (See Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 743-44 (“A motion for summary adjudication tenders only those issues or causes of action specified in the notice of motion, and may only be granted as to the matters thus specified.
The movant must ‘state[] specifically in the notice of motion and ... repeat[], verbatim, in the separate statement of undisputed material facts,’ ‘the specific cause of action, affirmative defense, claims for damages, or issues of duty’ as to which summary adjudication is sought. (Former Cal. Rules of Court, rule 342(b); see now Cal. Rules of Court, rule 3.1350(b).) The motion must be denied if the movant fails to establish an entitlement to summary adjudication of the matters thus specified; the court cannot summarily adjudicate other issues or claims, even if a basis to do so appears from the papers.”).)
Thus, to prevail on their motion, Defendants must demonstrate that they are entitled to summary judgment on all of the causes of action asserted against them.
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Defendants have not done so. Indeed, Defendants do not even address the elements of any of the causes of action asserted in the FAC. Defendants do not address the elements of Plaintiff’s first cause of action for breach of written contract, the second cause of action for conversion, or the third cause of action for financial elder abuse. Thus, Defendants did not meet their initial burden of showing that Plaintiff cannot establish at least one element of each of his causes of action.
Defendants shall give notice of this ruling. 4 InsZon Plaintiff InsZone Insurance Services, LLC, moves to compel further responses e Insur from Defendant Vincent A. Capizzi II to Form Interrogatories (Set One). For the following reasons, ance the motion is DENIED as moot. Service s, LLC vs. Plaintiff InsZone Insurance Services, LLC, moves to compel further responses Capizzi from Defendant Vincent A. Capizzi II to RFPs (Set One). For the following reasons, the motion is DENIED as moot.
Plaintiff InsZone Insurance Services, LLC, moves to compel further responses from Defendant Daybreak Services, Inc., dba Daybreak Insurance Services to Form Interrogatories (Set One). For the following reasons, the motion is DENIED as moot.
Plaintiff InsZone Insurance Services, LLC, moves to compel further responses from Defendant Daybreak Services, Inc., dba Daybreak Insurance Services to RFPs (Set One). For the following reasons, the motion is DENIED as moot.
While these motions were pending, Defendants served second amended responses to the discovery at issue, including Defendant Capizzi II’s second amended response to Form Interrogatories (Set One); Defendant Capizzi II’s second amended response to RFPs(Set One); Defendant Daybreak’s second amended response to Form Interrogatories (Set One); and Defendant Daybreak’s second amended response to RFPs(Set One). (Le Decl. ¶ 2, Exs. A-D.) Defendants also produced approximately 1,900 documents responsive to those requests. (Le Decl. ¶ 3.)
To the extent Plaintiff argues that Defendants should be ordered to comply with their statutory duty under section 2031.280(a) to identify which documents are responsive to which requests, Plaintiff submits no evidence to support that Defendants failed to comply with their statutory obligation. Arguments raised in briefs constitute the unsworn statements or testimony of counsel, which do not constitute evidence within the meaning of the Evidence Code. (In re Zeth S. (2003) 31 Cal.4th 396, 413, fn. 11; see also In re Marriage of Pasco (2019) 42 Cal.App.5th 585, 592; DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 683.)
Sanctions
Plaintiff’s request for sanctions is granted against Defendants Vincent A. Capizzi and Daybreak Services, Inc., dba Daybreak Insurance Services, jointly and severally. (See Code Civ. Proc., §§ 2030.300(d), 2031.310(c), Cal. Rules Ct., Rule 3.1348(a).) Defendants are ordered to pay sanctions in the amount of $5,850.00, within 30 days of the service of the notice of ruling.
Plaintiff to give notice. 5 Lauren OFF CALENDAR ce vs. Mal cias 6 Blood Defendant Prime Healthcare Huntington Beach, LLC dba Huntington Beach Hospital’s Motion to vs. Compel Further Responses to Form Interrogatories (Set One) No. 17.1 is CONTINUED to Huntin AUGUST 20, 2026, at 01:30pm in Department C10. gton Beach Hospita Defendant served Plaintiff Heather Jeane Blood, who is self-represented, with the moving papers l on the motion by electronic service on May 8, 2026. California Rule of Court 2.251(c)(3)(B) provides that self-represented parties “are to be served by non-electronic methods unless they affirmatively consent to electronic service.” There is no evidence in the record that Plaintiff, who is self represented, affirmatively consented to electronic service.
To ensure that Plaintiff receives proper notice and due process, therefore, the hearing on the motion is continued to August 20, 2026 at 01:30pm in Department C10 (at least 16 court days plus 5 additional days for mailing). Defendant is ordered to serve Plaintiff with the moving papers by mail in a manner that provides Plaintiff with sufficient notice under the code based on the continued hearing date. 7 9 What Continued from the June 11, 2026 hearing, the motion for attorney fees is GRANTED. ney, Moving party shall give notice. LLC vs. Ma yrock A 14