Curiosity Never Kills the Cat: Legal Questions for VERIFIED LAWYERS- ~No Discussion~

[Jessica2012]

I have a couple of questions regarding the WDS. Is it against the defendants as a whole? For example, can one person be found guilty and two innocent? Also, can the decision be appealed? If Dina, Nina and Adam are found innocent can the Zahaus appeal this? Conversely if they are found guilty can they appeal it? Thank You In Advance.

 

[AZlawyer]

I have a couple of questions regarding the WDS. Is it against the defendants as a whole? For example, can one person be found guilty and two innocent? Also, can the decision be appealed? If Dina, Nina and Adam are found innocent can the Zahaus appeal this? Conversely if they are found guilty can they appeal it? Thank You In Advance.

No one will be found guilty or not guilty at all, because this is not a criminal case. But yes, a jury or judge could find zero, one, two or three of the defendants liable for RZ's death. And the decision can be appealed by either side.

 

[Jessica2012]

Thank You SO Much AZlawyer for taking the time out to answer my questions I really appreciate it.

Also, in the search warrant is listed "Document Addressed To Jonah". Hypothetically if this was a suicide note, would JS legally be able to keep this private? It could potentially "make or break" both cases, would he be required by law to disclose the contents of it if it was at all related? What about the investigators?

 

[AZlawyer]

Thank You SO Much AZlawyer for taking the time out to answer my questions I really appreciate it.

Also, in the search warrant is listed "Document Addressed To Jonah". Hypothetically if this was a suicide note, would JS legally be able to keep this private? It could potentially "make or break" both cases, would he be required by law to disclose the contents of it if it was at all related? What about the investigators?

If it were a suicide note, it would be in the Sheriff's files, which means (1) I think the Zahau family would have it (weren't they given access to the files at one point?) and (2) Dina would have it as a result of her subpoena. No, JS would not be able to keep it secret just because his name was on it.

Also, if it said "document addressed to Jonah" with no further explanation, it could have been so so so many things. If it were a suicide note, I suspect it would have said, e.g., "undated handwritten note addressed to Jonah and signed 'Rebecca'," or something similar.

 

[LuckyLucy2]

Hello AZLawyer, I was hoping if you had the time you could discuss the questions that I brought up on the other thread. I have quoted that below.

Tomorrow the Judge will rule on Dina Shacknai's Motions to Compel Depositions and Request for Sanctions, so would love to get your knowledgable opinion on some of Attorney Greer's arguements to oppose.

Thank you so much!

AZLawyer also wrote that the Zahau's attorney Greer is wrong about how Attorney-Client privledge works. I'd love to hear her opinion on his behavior and arguements in the Exhibit A transcript in post #145.

I'd also like to know what she thinks about his "work product and attorney thought process" arguements. How does she think the Judge will rule on this?

I almost fell off my chair when I read Greer was using Roe vs Wade in his arguement as to why XZ should not have to answer questions about the reasons she does not live with her Mother.

I wonder if AZLawyer can also discuss that argument? Is that valid at all? I thought that just covered abortion!?

GREER: The Supreme Court has consistently held that "the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation's history and tradition" [(Meyer v. Nebraska, 262 U.S.390 (1923);Pierce v. Society of Sisters, 268 U.S. 510 (1928)] and has specifically listed family relations andchild rearing as a protected privacy interest. (Roe v. Wade) (1973) 410 U.S. 113, 152-153.).

From page 7 of MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION TO MOTION TO COMPEL DEPOSITION TESTIMONY OF XZ; AND REQUEST FOR MONETARY SANCTIONS IN THE AMOUNT OF $$$$$$; DECLARATION OF C. KEITH GREER, ESQ., linked up thread.

 

[AZlawyer]

Hello AZLawyer, I was hoping if you had the time you could discuss the questions that I brought up on the other thread. I have quoted that below.

Tomorrow the Judge will rule on Dina Shacknai's Motions to Compel Depositions and Request for Sanctions, so would love to get your knowledgable opinion on some of Attorney Greer's arguements to oppose.

Thank you so much!

I think Greer is quite confused about A/C and work product privilege. I have had a few other attorneys make odd statements like this in depositions, but every time we've gone to a judge their objections have been overruled. Some of his privilege objections made sense, but sort of randomly--like if you say it's 3 pm over and over again, eventually you will be right.

Roe v Wade is indeed about privacy rights, but I don't know why you'd bother mentioning it when California has some of the strongest laws about privacy in the nation. I would think the appropriate objection there would be relevance--who cares why she doesn't live with her mother?? I think the weakest part of Dina's brief is where her attorney says that, given the seriousness of the allegations against Dina, all information about RZ and her family is relevant. That makes literally no sense. Now, information about the relationship between Rebecca and the heirs listed in California's survivor statute would be important, because that would relate to damages (how much it damaged them to lose that relationship), but it seems to me that Dina's attorneys were going way beyond that in their questions.

 

[LuckyLucy2]

Thanks so much for your expertise. AZLawyer! It really is appreciated.

I suppose I will actually have to read Roe vs Wade one of these days! Thanks for the scoop on that.

Since XZ was with Rebecca after Max's horrific accident until sometime in the afternoon that Tuesday before Rebecca's suicide, early Wednesday morning I would think what XZ observed and what Rebecca said would be very relevant. After all, since she spent the most time with Rebecca in those last 48 hours. Did Rebecca say anything odd? Act odd?

I would also think that information about the relationship of the Zahau family - Rebecca, her parents, sisters, and brothers - would be part of LE's investigative file, therefore relevant to the discovery. If there was friction or animosity in the Zahau family, that could have added to Rebecca's decision to take her life that morning.

It just seems to me like the Zahaus don't want to answer anything. I would think it is unusual for Plantiffs to refuse to answer so many deposition questions?

At any rate, it will be interesting to see how the Judge rules tomorrow. You never know!

Thanks again for your time and great answer!!!

 

[AZlawyer]

Thanks so much for your expertise. AZLawyer! It really is appreciated.

I suppose I will actually have to read Roe vs Wade one of these days! Thanks for the scoop on that.

Since XZ was with Rebecca after Max's horrific accident until sometime in the afternoon that Tuesday before Rebecca's suicide, early Wednesday morning I would think what XZ observed and what Rebecca said would be very relevant. After all, since she spent the most time with Rebecca in those last 48 hours. Did Rebecca say anything odd? Act odd?

I would also think that information about the relationship of the Zahau family - Rebecca, her parents, sisters, and brothers - would be part of LE's investigative file, therefore relevant to the discovery. If there was friction or animosity in the Zahau family, that could have added to Rebecca's decision to take her life that morning.

It just seems to me like the Zahaus don't want to answer anything. I would think it is unusual for Plantiffs to refuse to answer so many deposition questions?

At any rate, it will be interesting to see how the Judge rules tomorrow. You never know!

Thanks again for your time and great answer!!!

Oh, for sure what XZ observed, what Rebecca said, how Rebecca acted--all that is fair game.

The relationships among the family members are potentially relevant as to (1) how the relationships between the statutory heirs and Rebecca were damaged by her death, and (2) any possible motive for suicide. I don't see how XZ not living with her mom is relevant to either of those things, though. I can't imagine why this information would have been part of LE's file either. But in any event something being part of LE's file has nothing to do with whether it's relevant to the court case.

It is very unusual for plaintiffs to refuse to answer so many depo questions, especially the ones about what evidence and witnesses they have for their claims. I had to get on the phone once with a judge when a plaintiff refused to answer questions like that. The opposing counsel said, "Your honor, it's not fair because my client doesn't know anything about the evidence for the claims!" I said, "Right, exactly, that's the point I'm trying to make." The judge agreed with me.

 

[K_Z]

Judge Bacall made a ruling on the defendant's motions to compel that were heard 11/20/15. IANAL, but I think it reads like a very fair ruling to both sides-- many questions denied, some allowed to be re-asked. No monetary sanctions for the plaintiffs.

The areas of questions I thought would probably be denied, actually were. A few surprises with the questions Doug should answer-- but that's not a big deal to me, because none of those questions seem at all critical to the foundation of the plaintiff's allegations. (IMO, of course!) I'm sure the defendants feel differently, but that's what the process is all about. I never expected the judge to rule completely "for" or "against" either side on these particular motions to compel.

Here's the ruling. (Thank you to *Lash* for posting.)

http://www.sandiego.courts.ca.gov/v...-00075418&SelDates=11/20/2015&EventId=1601102

Anyway, I have a couple nuts and bolts questions, if you're willing.

First, do the questions granted to be re-asked have to be in a face to face deposition format, or could they be written questions and answers exchanged?

Can they use technology such as skype, or videoconferencing?

If asked in a deposition format, are follow up questions allowed? If so, to what extent are they "typically" allowed before they have to go back to the court to get permission for an additional extended deposition session?

Or do any additional questions have to be approved by the court? The reason I ask is that it could be possible to use a second deposition to foray into a whole lot of unrelated or non-permitted areas of questioning just for the opportunity of a "fuller" second deposition. A lot of those questions permitted to be re-asked are fairly concrete "yes/ no" kind of answers. It doesn't seem realistic that they could go to all the expense, time, and trouble to do a deposition, haul everybody in to a mutually agreed place, hire a court reporter, etc-- just to ask a few "yes/no" questions, then pack up and go home. Or maybe that's just the way it all works? (Which could be a way to run out the $$ and patience of one side or another, or create delays in the case moving along, etc. Either side could do that kind of manuvering.)

Can the defendant decide to NOT re-ask the questions if they want? Does the court ruling compel them to re-ask the questions they are allowed to ask?

The last page gives the defendant and her attorneys 2 days to submit their plans to the court.

Defendant is directed to serve notice on all parties within 2 court days of this ruling.

If that elapses, and there is no action by the defendant, do they lose the opportunity to go back and re-ask those particular questions? Why the 2 days qualifier? Is that typical?

Thanks very much for your time! And willingness to explain!

 

[AZlawyer]

Judge Bacall made a ruling on the defendant's motions to compel that were heard 11/20/15. IANAL, but I think it reads like a very fair ruling to both sides-- many questions denied, some allowed to be re-asked. No monetary sanctions for the plaintiffs.

The areas of questions I thought would probably be denied, actually were. A few surprises with the questions Doug should answer-- but that's not a big deal to me, because none of those questions seem at all critical to the foundation of the plaintiff's allegations. (IMO, of course!) I'm sure the defendants feel differently, but that's what the process is all about. I never expected the judge to rule completely "for" or "against" either side on these particular motions to compel.

Here's the ruling. (Thank you to *Lash* for posting.)

http://www.sandiego.courts.ca.gov/v...-00075418&SelDates=11/20/2015&EventId=1601102

Anyway, I have a couple nuts and bolts questions, if you're willing.

First, do the questions granted to be re-asked have to be in a face to face deposition format, or could they be written questions and answers exchanged?

Can they use technology such as skype, or videoconferencing?

If asked in a deposition format, are follow up questions allowed? If so, to what extent are they "typically" allowed before they have to go back to the court to get permission for an additional extended deposition session?

Or do any additional questions have to be approved by the court? The reason I ask is that it could be possible to use a second deposition to foray into a whole lot of unrelated or non-permitted areas of questioning just for the opportunity of a "fuller" second deposition. A lot of those questions permitted to be re-asked are fairly concrete "yes/ no" kind of answers. It doesn't seem realistic that they could go to all the expense, time, and trouble to do a deposition, haul everybody in to a mutually agreed place, hire a court reporter, etc-- just to ask a few "yes/no" questions, then pack up and go home. Or maybe that's just the way it all works? (Which could be a way to run out the $$ and patience of one side or another, or create delays in the case moving along, etc. Either side could do that kind of manuvering.)

Can the defendant decide to NOT re-ask the questions if they want? Does the court ruling compel them to re-ask the questions they are allowed to ask?

The last page gives the defendant and her attorneys 2 days to submit their plans to the court.



If that elapses, and there is no action by the defendant, do they lose the opportunity to go back and re-ask those particular questions? Why the 2 days qualifier? Is that typical?

Thanks very much for your time! And willingness to explain!

The ruling seems very fair to both sides. As I mentioned in previous answers, for example, Plaintiffs' counsel was confused about the scope of A/C privilege, but Defendants' counsel was confused about the extent to which they could invade the privacy of Plaintiffs on irrelevant subjects. The judge is not leaning in favor of either party.

The attorneys will most likely figure out between themselves how to get the remaining questions answered. I would expect in-person or video conference, because follow-up questions will definitely be allowed (and do not have to be pre-approved). If the follow-up questions start meandering too far off-topic, one side or the other will probably call the judge for a quick ruling.

There are a few questions that were not "yes-or-no" questions that could lead to quite a bit of follow-up...like "what the heck evidence do you actually have"? (I may be rephrasing that one lol.)

The defendants are not compelled to re-ask the questions.

I didn't see anything about submitting plans within 2 days--it just says the Defendant shall "serve notice" within 2 days. I think that has something to do with California's "tentative ruling" procedure, which is weird IMO. Anyway, I think it's a procedural requirement and nothing interesting.

 

[Jessica2012]

Hi AZ Lawyer, Happy New Year
I wanted to ask you, if Dina were to find out something negative about the Zahaus immigration status, would she be able to get the wrongful death case thrown out? Thank You So Much In Advance

 

[AZlawyer]

Hi AZ Lawyer, Happy New Year
I wanted to ask you, if Dina were to find out something negative about the Zahaus immigration status, would she be able to get the wrongful death case thrown out? Thank You So Much In Advance

No, of course not.

 

[Carioca]

Hi AZ Lawyer,

Would you be so kind as to shed a light on what this is all about, and what Dina is looking to gain from it? Many thanks for your time and for sharing your expertise!

As you will remember, regarding U.S. District Court - Southern District of CA (San Diego) case #: 3:13-cv-01624-W-NLS, the Hon. Judge Whelan granted the Zahau's (Plaintiff's) motion for voluntary dismissal without prejudice, and the case was dismissed on 10/23/2015.

On 11/20/2015, Dina Shacknai filled a Notice of Appeal (see attached) Court of Appeals Docket #: 15-56805.

The most recent entry is as follows:

12/21/2015
Document 5
Filed Mediation order: This case is under consideration for inclusion in the Mediation Program. By 01/11/2016 , counsel for all parties intending to file briefs in this matter are requested to inform the Circuit Mediator by email of their clients' views on whether the issues on appeal or the underlying dispute might be amenable to settlement presently or in the foreseeable future. This communication will be kept confidential, if requested... This communication should not be filed with the court... The existing briefing schedule remains in effect... [9801202] (VS) [Entered: 12/21/2015 03:47 PM]
https://www.pacer.gov/

 

[AZlawyer]

Hi AZ Lawyer,

Would you be so kind as to shed a light on what this is all about, and what Dina is looking to gain from it? Many thanks for your time and for sharing your expertise!

As you will remember, regarding U.S. District Court - Southern District of CA (San Diego) case #: 3:13-cv-01624-W-NLS, the Hon. Judge Whelan granted the Zahau's (Plaintiff's) motion for voluntary dismissal without prejudice, and the case was dismissed on 10/23/2015.

On 11/20/2015, Dina Shacknai filled a Notice of Appeal (see attached) Court of Appeals Docket #: 15-56805.

The most recent entry is as follows:

12/21/2015
Document 5
Filed Mediation order: This case is under consideration for inclusion in the Mediation Program. By 01/11/2016 , counsel for all parties intending to file briefs in this matter are requested to inform the Circuit Mediator by email of their clients' views on whether the issues on appeal or the underlying dispute might be amenable to settlement presently or in the foreseeable future. This communication will be kept confidential, if requested... This communication should not be filed with the court... The existing briefing schedule remains in effect... [9801202] (VS) [Entered: 12/21/2015 03:47 PM]
https://www.pacer.gov/

View attachment 87407

IIRC, Dina objected to the dismissal of the case because her attorneys incorrectly thought they needed federal subpoenas to obtain certain records (and also because of other reasons that made no sense to me at the time and obviously didn't stick in my memory). Apparently she's appealing that decision.

It is very normal for the 9th Circuit to order the parties to discuss the potential for settlement. If the mediation department thinks settlement is possible, they will order an in-person mediation and will suspend the briefing process until that's done.

 

[*Lash*]

Hi AZlawyer!

Could you confirm if ROA doc #121, motion for judgment on pleadings is indeed a motion for summary judgment? From what I have read it appears to be, but IANAL and would rather have your expert opinion. TIA

I posted the entire pdf document just a few minutes ago in the WDS thread.

ETA - below is the full document.

http://www.websleuths.com/forums/attachment.php?attachmentid=87602&d=1453150682

 

[AZlawyer]

Hi AZlawyer!

Could you confirm if ROA doc #121, motion for judgment on pleadings is indeed a motion for summary judgment? From what I have read it appears to be, but IANAL and would rather have your expert opinion. TIA

I posted the entire pdf document just a few minutes ago in the WDS thread.

ETA - below is the full document.

http://www.websleuths.com/forums/attachment.php?attachmentid=87602&d=1453150682

No, it's a motion for judgment on the pleadings. The difference is that a motion for judgment on the pleadings says "You don't even need to look at the evidence, judge--this claim is nonsense on the face of it." A motion for summary judgment says, "I know the Complaint makes me sound bad, judge, but look at the evidence."

 

[*Lash*]

Thank you for your expertise, AZlawyer! I cannot overstate how helpful your knowledge and expert opinion has been in this case. You're greatly appreciated!

:tyou:

 

[*Lash*]

No, it's a motion for judgment on the pleadings. The difference is that a motion for judgment on the pleadings says "You don't even need to look at the evidence, judge--this claim is nonsense on the face of it." A motion for summary judgment says, "I know the Complaint makes me sound bad, judge, but look at the evidence."

Me again :wave:

This may be a silly question, but I'm curious since several summary judgment hearings have been rescheduled. This motion is from April 2015, when would be a proper time to hear a motion on a judgment on pleadings? Would it be heard at a summary judgment hearing?

TIA

 

[AZlawyer]

Me again :wave:

This may be a silly question, but I'm curious since several summary judgment hearings have been rescheduled. This motion is from April 2015, when would be a proper time to hear a motion on a judgment on pleadings? Would it be heard at a summary judgment hearing?

TIA

The proper time to hear the motion for judgment on the pleadings if you cared about timely justice would have been approx. six months ago.

I don't know what this court would call a hearing on a motion for judgment on the pleadings. Apparently not "hearing on motion for judgment on the pleadings," because we haven't seen one of those scheduled. Perhaps a "summary judgment/summary adjudication" hearing would include this motion, since a motion for judgment on the pleadings is a request for a type of summary adjudication. Perhaps it would be called a hearing on "demurrer" since there is no real difference between a demurrer and a motion for judgment on the pleadings.

The only way to tell for sure would be to look at the actual minute entries scheduling these hearings, rather than at the docket listing.


ETA: I just noticed this motion for judgment on the pleadings was filed BEFORE the Second Amended Complaint. Normally, that would mean the motion was moot and would not be ruled upon, because the "pleadings" in question had changed.

 

[LuckyLucy2]

Hi AZ Lawyer,

If the WDS is thrown out of court when Adam and Dina's Demurrers are heard on 2/19, will they still be able to ask for a Summary Judgement as well?

And will Mary Zahau still have to answer the deposition questions she refused to answer that Judge Bacall ruled she must answer, or is everything over?

Thanks so much!