Richard Anderson, ESQ., SBN 95309

Separate Statement in Opposition to Motion to Compel

THE LAW OFFICES OF RICHARD ANDERSON

999 The Heights, 35th Floor

Vista Del Mar, CA 95555

Tel: (555) 555-5555

Fax: (555) 555-5558

Email: et

Attorney for Defendant

Freedom West Mortgage, Corp.,

and Julia Scott

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SEASIDE

HENRY KINGSTON,)Case No. 200401357

)

Plaintiff,)DEFENDANT GOLDEN

)FREEDOM WEST MORTGAGE

)CORPORATION’S

v.)SEPARATE STATEMENT

)IN OPPOSITION TO

VISTA REALTY, et al.,)PLAINTIFF’S MOTION TO

)COMPEL

Defendants.)

______)Date: 5/27/04

Time: 3:30 p.m.

Dept. 60

Trial: 8/15/04

Defendant Freedom West Mortgage Corporation hereby submits the following separate statement in opposition to plaintiff’s motion to compel further responses to plaintiff’s special interrogatories, set no. 3 and request for production, set no. 4.[1]

SPECIAL INTERROGATORY NUMBER 22:

For each home loan BROKERED by YOU between April 15, 2003 and July 1, 2003, please identify each borrower by providing his or her name, address and telephone number.

DEFENDANTS' RESPONSE:

Objection. The interrogatory is overbroad as to it's [sic] definition of "broker," which would prevent any accurate substantive response. Responding Party further objects because the interrogatory seeks information which is beyond the scope of discovery and which will not lead to the discovery of admissible evidence. Responding Party further objects because the interrogatory seeks information which is confidential and privileged consumer information of borrowers protected from disclosure by CCP section 1985.3 and the Right of Financial Privacy Act of 1978.

REASONS TO COMPEL FURTHER RESPONSES:

Plaintiff has specifically defined the term "BROKERED'' in his third set of special interrogatories.

Furthermore, the information sought by plaintiff is materially relevant to his claims, in that it will show that other, lower interest loans existed at the time that defendants coerced plaintiff into entering a loan with an interest rate of 8.5%.

Finally, CCP section 1985.3 applies only subpoenas duces tecum, defendant is not a "financial institution," and plaintiff is not a “Government Authority'' within the meaning of the Right to Financial Privacy Act. Moreover, should the Court find that substantial confidentiality interests are at issue, plaintiff requests that the Court take appropriate steps to protect these interests, such as limiting, plaintiff's ability to disseminate this information.

DEFENDANT’S REASONS TO DENY PLAINTIFF’S MOTION:

Plaintiff’s definition of "BROKERED'' is overbroad, since it includes actions (e.g. negotiation, approving, etc.) which defendant is prohibited by law from performing.

Furthermore, the information plaintiff seeks is not reasonably calculated to lead to the discovery of admissible evidence. It will not show that plaintiff could have obtained a lower interest rate.

Finally, the information is protected pursuant to CCP section 1985.3, USC 3401 et seq., and Valley Bank of Nevada v. Superior Court (1975) 15 C3d 652. If the Court should find that the information sought is relevant, then a remedy must be fashioned to notify the approximately 400 third party borrowers that the information is being sought, and provide them an opportunity to object and seek protective orders. Such a remedy would involve requiring plaintiff to pay for the notification process, and continuing the trial to provide ample time for the notification and objection process to take place.

SPECIAL INTERROGATORY NUMBER 23:

For each home loan BROKERED by YOU between April 15, 2003, and July 1, 2003, please provide the date of the loan.

DEFENDANTS' RESPONSE:

REASONS TO COMPEL FURTHER RESPONSES:

Plaintiff has specifically defined the term "BROKERED" in his third set of special interrogatories.

Finally, CCP section 1985.3 applies only subpoenas duces tecum. Defendant is not a "financial institution," and plaintiff is not a "Government Authority" within the meaning of the Right to Financial Privacy Act. Moreover, should the Court find that substantial confidentiality interests are at issue, plaintiff requests that the Court take appropriate steps to protect these interests such as limiting plaintiff s ability to disseminate this information.

DEFENDANT’S REASONS TO DENY PLAINTIFF’S MOTION:

(PLEASE NOTE THAT THIS INTERROGATORY IS IDENTICAL TO NO. 26.)

Plaintiff’s definition of "BROKERED'' is overbroad, since it includes actions (e.g. negotiation, approving, etc.) which defendant is prohibited by law from performing.

SPECIAL INTERROGATORY NUMBER 24:

For each home loan BROKERED by YOU between April 15, 2003, and July 1, 2003, please provide the amount of the loan.

DEFENDANTS' RESPONSE:

Objection. The interrogatory is overbroad as to it's [sic] definition of "broker," which would prevent any accurate substantive response Responding Party further objects because the interrogatory seeks information which is beyond the scope of discovery and which will not lead to the discovery of admissible evidence. Responding Party further objects because the interrogatory seeks information which is confidential and privileged consumer information of borrowers protected from disclosure by CCP section 1985.3 and the Right of Financial Privacy Act of 1978.

REASONS TO COMPEL FURTHER RESPONSES:

Plaintiff has specifically defined the term "BROKERED" in his third set of special interrogatories.

Finally, CCP section 1985.3 applies only subpoenas duces tecum, defendant is not a "financial institution," and plaintiff is not a "Government Authority," within the meaning of the Right to Financial Privacy Act. Moreover, should the Court find that substantial confidentiality interests are at issue, plaintiff requests that the Court take appropriate steps to protect these interest, such as limiting plaintiff's ability to disseminate this information.

DEFENDANT’S REASONS TO DENY PLAINTIFF’S MOTION:

Plaintiff’s definition of "BROKERED'' is overbroad, since it includes actions (e.g. negotiation, approving, etc.) which defendant is prohibited by law from performing.

Furthermore, the information plaintiff seeks is not reasonably calculated to lead to the discovery of admissible evidence. It will not show that plaintiff could have obtained a lower interest rate. The only relevant information is what rates were available to plaintiff, not those for other borrowers, even if the amount of the loan were the same. Plaintiff can determine what interest rates were available to plaintiff and to defendant through other discovery (which he has not pursued), or from other sources, such as other mortgage brokers, consultants and experts.

SPECIAL INTERROGATORY NUMBER 25:

For each home loan BROKERED by YOU between April 15, 2003, and July 1, 2003, please provide the interest rate on the loan.

DEFENDANTS' RESPONSE:

Objection. The interrogatory is overbroad as to it's [sic] definition of broker," which would prevent any accurate substantive response. Responding Party further objects because the interrogatory seeks information which is beyond the scope of discovery and which will not lead to the discovery of admissible evidence. Responding Party further objects because the interrogatory seeks information which is confidential and privileged consumer information of borrowers protected from disclosure by CCP section 1985.3 and the Right of Financial Privacy Act of 1978.

REASONS TO COMPEL FURTHER RESPONSES:

Plaintiff has specifically defined the term "BROKERED" in his third set of special interrogatories.

Finally, CCP section 1985.3 applies only subpoenas duces tecum, defendant is not a "financial institution," and plaintiff is not a "Government Authority" within the meaning of the Right to Financial Privacy Act. Moreover, should the Court find that substantial confidentiality interests are at issue, plaintiff requests that the Court take appropriate steps to protect these interests such as limiting plaintiff's ability to disseminate this information.

DEFENDANT’S REASONS TO DENY PLAINTIFF’S MOTION:

Plaintiff’s definition of "BROKERED'' is overbroad, since it includes actions (e.g. negotiation, approving, etc.) which defendant is prohibited by law from performing.

Furthermore, the information plaintiff seeks is not reasonably calculated to lead to the discovery of admissible evidence. It will not show that plaintiff could have obtained a lower interest rate. Plaintiff can determine what interest rates were available to plaintiff and to defendant through other discovery (which he has not pursued), or from other sources, such as other mortgage brokers, consultants and experts. Moreover, the interest rates available fluctuate daily. (Declaration of Susan Burnett Luten In Opposition to Motion to Compel Defendants Freedom West and Sharon Scott to Provide Further Responses to Special Interrogatories, Set No. 3, And Requests for Production, Set No. 4 [“Luten declaration”],)

SPECIAL INTERROGATORY NUMBER 26:

For each home loan BROKERED by YOU between April 15, 2003, and July 1, 2003, please provide the date of the loan.

DEFENDANTS' RESPONSE:

REASONS TO COMPEL FURTHER RESPONSES:

Plaintiff has specifically defined the term "BROKERED" in his third set of special interrogatories.

Furthermore, the information sought by plaintiff is materially relevant to his claims in that it will show that other, lower interest loans existed at the time that defendants coerced plaintiff into entering a loan with an interest rate of 8.5%.

Finally, CCP section 1985.3 applies only subpoenas duces tecum, defendant is not a "financial institution," and plaintiff is not a "Government Authority" within the meaning of the Right to Financial Privacy Act. Moreover, should the Court find that substantial confidentiality interests are at issue, plaintiff requests that the Court take appropriate steps to protect these interests, such as limiting plaintiff's ability to disseminate this information.

DEFENDANT’S REASONS TO DENY PLAINTIFF’S MOTION:

(PLEASE NOTE THAT THIS INTERROGATORY IS IDENTICAL TO NO. 23.)

Plaintiff’s definition of "BROKERED'' is overbroad, since it includes actions (e.g. negotiation, approving, etc.) which defendant is prohibited by law from performing.

SPECIAL INTERROGATORY NUMBER 27:

For each home loan BROKERED by YOU between April 15, 2003, and July 1, 2003, please describe any compensation that YOU received as a result of the loan transaction.

DEFENDANTS' RESPONSE:

REASONS TO COMPEL FURTHER RESPONSES:

Plaintiff has specifically defined the term "BROKERED" in his third set of special Interrogatories. Furthermore, the information sought by plaintiff is materially relevant to his claims, in that it will show that other, lower interest loans existed at the time that defendants coerced plaintiff into entering a loan with an interest rate of 8.5%.

Finally, CCP section 1985.3 applies only subpoenas duces tecum, defendant is not a "financial institution," and plaintiff is not a "Government Authority" within the meaning of the Right to Financial Privacy Act. Moreover, should the Court find that substantial confidentiality interests are at issue, plaintiff requests that the Court take appropriate steps to protect these interests, such as limiting plaintiff's ability to disseminate this information.

DEFENDANT’S REASONS TO DENY PLAINTIFF’S MOTION:

Plaintiff’s definition of "BROKERED'' is overbroad, since it includes actions (e.g. negotiation, approving, etc.) which defendant is prohibited by law from performing.

SPECIAL INTERROGATORY NUMBER 28:

For each home loan BROKERED by YOU between April 15, 2003, and July 1, 2003, please identify the lending institution with which YOU BROKERED the loan by providing its name, address, and telephone number.

DEFENDANTS' RESPONSE:

REASONS TO COMPEL FURTHER RESPONSES:

Plaintiff has specifically defined the term "BROKERED" in his third set of special interrogatories.