Preview
ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, state bar number, and address): FOR COURT USE ONLY
John R. Brydon (83365) / Paul A. Peters (148497) / James V. Weixel (166024)
DEMLER, ARMSTRONG & ROWLAND, LLP E-FILED
101 Montgomery Street, Suite 1800, San Francisco, CA 94104 6/9/2022 10:20 AM
Superior Court of California
County of Fresno
By: L. Whipple, Deputy
TELEPHONE NO: (415) 949-1900 FAX NO: (415) 354-8380
ATTORNEY FOR (Name): Deft. Fire Ins. Exchange
SUPERIOR COURT OF CALIFORNIA * COUNTY OF FRESNO.
Civil Division
1130 O Street
Fresno, California 93721-2220
PLAINTIFF/PETITIONER: EDWARD FUNEZ
DEFENDANT/RESPONDENT: FIRE INSURANCE EXCHANGE, et al.
CASE NUMBER:
REQUEST FOR PRETRIAL DISCOVERY CONFERENCE 19ceCG02755
0 Plaintiff(s) Defendant(s) [J Cross-complainant(s) [1] Cross-defendant(s) [] Other(s) Request a
Pretrial Discovery Conference.
A Pretrial Discovery Conference is being requested for the following reasons:
1 Adispute has arisen regarding a request for production of documents, set propounded on
C1 Adispute has arisen regarding form or special interrogatories, set propounded on :
L] A dispute has arisen regarding a deposition subpoena directed at for deposition
scheduled for :
A dispute has arisen regarding a deposition notice, production of documents at a deposition or deposition
questions related to the deposition of Defendant's PMQs scheduled for or held on 6/14-17/22
A dispute has arisen regarding monetary, issue, evidence or terminating sanctions related to a failure to
comply with :
Privilege is the basis for the refusal to produce documents and a privilege log is attached which complies
with Local Rule 2.1.17(B).
i)
Oo
The parties have engaged in the following meaningful meet and confer efforts prior to filing this request:
(Describe in detail all meet and confer efforts including any narrowing of the issues or resolutions reached via
these efforts.)
The parties have exchanged communications via email regarding these deposition notices. Defendant's
primary point is that discovery is closed; plaintiff disagrees. The parties also remain in disagreement on the
other issues expressed in Defendant's objections to these deposition notices (and the requests for documents in
each notice).
PCV-70 ROS-19 REQUEST FOR PRETRIAL DISCOVERY CONFERENCE Page 1 of 2
Mandatory Local Rule 2.1.17A brief summary of the dispute, including the facts and legal arguments at issue is as follows:
(Excepting a privilege log if checked above, no pleadings, exhibits, declarations, or attachments shall be
attached.)
The initial date set for trial was February 1, 2021. The discovery cutoff date was therefore January 4, 2021. The
Court continued the trial date, but expressly ruled that the discovery cutoff was not extended by virtue of the
continuance. That order, and the passage of the discovery cutoff itself, strictly preclude Plaintiff from re-noticing
the depositions of Defendant's PMQs. Accordingly, Plaintiff's notices are untimely and improper and must be
quashed, and/or a protective order must issue preventing those depositions from going forward at all. The fact
that Plaintiff may have noticed these depositions before the discovery cutoff in January 2021 does not permit
them to pursue and take these deposition after the discovery cutoff where no agreement was reached
extending it and Plaintiff did not complete this discovery before the cutoff.
In addition to the black-line preclusion of these depositions by virtue of their untimeliness, Plaintiff's notices and
the requests for documents in each notice are objectionable and should be quashed and/or precluded from
going forward on a number of grounds, including but not limited to the following: (1) vagueness, ambiguity and
overbreadth as to certain undefined phrases and terms used therein; (2) undue burden, as the proposed areas
of testimony and/or documents requested have already been the subject of one or more different discovery
requests and/or covered in other depositions or other productions of documents; (3) the testimony and/or
documents sought are protected from disclosure by the trade secrets privilege and/or are confidential and
proprietary in nature; and (4) the testimony and/or documents sought are protected from disclosure by the
attorney-client privilege and/or attorney work product doctrine. At base this is a simple suit about a claim for
policy benefits following a flood from some piping inside a single family home, but Plaintiff's depositions seek
discovery regarding of company-wide policies for reviewing the performance of employees, claims handling,
claims auditing and relations with third-party vendors, in a purely harassing effort to try the company and not
the facts of the case. This discovery should not be allowed even if it was timely, which it is not.
Fire is prepared to file a motion for protective order, motion to quash, or other appropriate order in advance of
the depositions in order to stay the same, as the Court may direct.
It is understood that the filing of this request for a Pretrial Discovery Conference tolls the time for filing a motion
to compel discovery on the disputed issues for the number of days between the filing of the request and
issuance by the Court of a subsequent order pertaining to the discovery dispute.
Opposing Party was served with a copy of REQUEST FOR PRETRIAL DISCOVERY CONFERENCE on: 6/9/2022
Date
Pursuant to Local Rule 2.1.17(A)(1), any opposition to this request for a Pretrial Discovery Conference must also
be filed on an approved form and must be filed within five (5) court days of receipt of the request for a Pretrial
Discovery Conference and must be served on the opposing party.
| declare under penalty of perjury under the laws of the State of California that the foregoing is true and
correct.
6/9/2022 James V. Weixel s/ James V. Weixel
Date Type or Print Name Signature of Party or Attorney for Party
PCV-70 ROS-19 REQUEST FOR PRETRIAL DISCOVERY CONFERENCE Page 2 of 2
Mandatory Local Rule 2.1.17&
a nw
10
Wl
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PROOF OF SERVICE
Edward Funez et vs. Fire Insurance Exchange
Fresno Superior Court Case No. 19CECG02755
I am employed in the County of San Francisco, State of California. I am over the age
of 18 and not a party to the within action; my business address is 101 Montgomery Street,
Suite 1800, San Francisco, California 94104.
On June 9, 2022, I served the foregoing document(s) described as REQUEST FOR
PRETRIAL DISCOVERY CONFERENCE on the interested parties in this action by
placing the copies thereof enclosed in sealed envelopes addressed as follows:
J. Edward Kerley, Esq. Connor M. Day, Esq.
Dylan L. Schaffer, Esq. Ferber Law, A Professional Corporation
Yameen Omidi, Esq. 2603 Camino Ramon, Suite 385
KERLEY SCHAFFER, LLP San Ramon, CA 94583
1939 Harrison Street, Suite 900 Tel: (925) 355-9088/Fax: (925) 263-1676
Oakland, CA 94612 cday@ferberlaw.com
Telephone: (510) 379-5801 Attorneys for Defendant American
Facsimile: (510) 228-0350 Contractors Indemnity Company
service@kslaw.us
Attorneys for Plaintiff Edward Funez
Patrick S. Schoenburg
Alexi P. Antoniou
Wood Smith Henning &Berman LLP
7108 North Fresno Street, Suite 250
Fresno, CA 93720-2952
Tel: (559) 437-2860/Fax: (559) 438-1350
pschoenburg@wshblaw.com
aantoniou@wshblaw.com
Attorneys for Defendant Benevento's
Cleaning &Restoration Service Inc. dba
Service Master by Benevento
ONLY BY ELECTRONIC TRANSMISSION. Only by emailing the document(s) to the
persons at the e-mail address(es). This is necessitated during the declared National Emergency
due to the Coronavirus (COVID-19) pandemic because this office will be working remotely,
not able to send physical mail as usual, and is therefore using only electronic mail. No
electronic message or other indication that the transmission was unsuccessful was received
within a reasonable time after the transmission. We will provide a physical copy, upon request
only, when we return to the office at the conclusion of the national emergency.
1
PROOF OF SERVICEI declare under penalty of perjury under the laws of the State of California that the
above is true and correct. Executed on June 9, 2022 at San Francisco, California.
FC bitly
2
PROOF OF SERVICE
Preview
ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, state bar number, and address): FOR COURT USE ONLY John R. Brydon (83365) / Paul A. Peters (148497) / James V. Weixel (166024) DEMLER, ARMSTRONG & ROWLAND, LLP E-FILED 101 Montgomery Street, Suite 1800, San Francisco, CA 94104 6/9/2022 10:20 AM Superior Court of California County of Fresno By: L. Whipple, Deputy TELEPHONE NO: (415) 949-1900 FAX NO: (415) 354-8380 ATTORNEY FOR (Name): Deft. Fire Ins. Exchange SUPERIOR COURT OF CALIFORNIA * COUNTY OF FRESNO. Civil Division 1130 O Street Fresno, California 93721-2220 PLAINTIFF/PETITIONER: EDWARD FUNEZ DEFENDANT/RESPONDENT: FIRE INSURANCE EXCHANGE, et al. CASE NUMBER: REQUEST FOR PRETRIAL DISCOVERY CONFERENCE 19ceCG02755 0 Plaintiff(s) Defendant(s) [J Cross-complainant(s) [1] Cross-defendant(s) [] Other(s) Request a Pretrial Discovery Conference. A Pretrial Discovery Conference is being requested for the following reasons: 1 Adispute has arisen regarding a request for production of documents, set propounded on C1 Adispute has arisen regarding form or special interrogatories, set propounded on : L] A dispute has arisen regarding a deposition subpoena directed at for deposition scheduled for : A dispute has arisen regarding a deposition notice, production of documents at a deposition or deposition questions related to the deposition of Defendant's PMQs scheduled for or held on 6/14-17/22 A dispute has arisen regarding monetary, issue, evidence or terminating sanctions related to a failure to comply with : Privilege is the basis for the refusal to produce documents and a privilege log is attached which complies with Local Rule 2.1.17(B). i) Oo The parties have engaged in the following meaningful meet and confer efforts prior to filing this request: (Describe in detail all meet and confer efforts including any narrowing of the issues or resolutions reached via these efforts.) The parties have exchanged communications via email regarding these deposition notices. Defendant's primary point is that discovery is closed; plaintiff disagrees. The parties also remain in disagreement on the other issues expressed in Defendant's objections to these deposition notices (and the requests for documents in each notice). PCV-70 ROS-19 REQUEST FOR PRETRIAL DISCOVERY CONFERENCE Page 1 of 2 Mandatory Local Rule 2.1.17A brief summary of the dispute, including the facts and legal arguments at issue is as follows: (Excepting a privilege log if checked above, no pleadings, exhibits, declarations, or attachments shall be attached.) The initial date set for trial was February 1, 2021. The discovery cutoff date was therefore January 4, 2021. The Court continued the trial date, but expressly ruled that the discovery cutoff was not extended by virtue of the continuance. That order, and the passage of the discovery cutoff itself, strictly preclude Plaintiff from re-noticing the depositions of Defendant's PMQs. Accordingly, Plaintiff's notices are untimely and improper and must be quashed, and/or a protective order must issue preventing those depositions from going forward at all. The fact that Plaintiff may have noticed these depositions before the discovery cutoff in January 2021 does not permit them to pursue and take these deposition after the discovery cutoff where no agreement was reached extending it and Plaintiff did not complete this discovery before the cutoff. In addition to the black-line preclusion of these depositions by virtue of their untimeliness, Plaintiff's notices and the requests for documents in each notice are objectionable and should be quashed and/or precluded from going forward on a number of grounds, including but not limited to the following: (1) vagueness, ambiguity and overbreadth as to certain undefined phrases and terms used therein; (2) undue burden, as the proposed areas of testimony and/or documents requested have already been the subject of one or more different discovery requests and/or covered in other depositions or other productions of documents; (3) the testimony and/or documents sought are protected from disclosure by the trade secrets privilege and/or are confidential and proprietary in nature; and (4) the testimony and/or documents sought are protected from disclosure by the attorney-client privilege and/or attorney work product doctrine. At base this is a simple suit about a claim for policy benefits following a flood from some piping inside a single family home, but Plaintiff's depositions seek discovery regarding of company-wide policies for reviewing the performance of employees, claims handling, claims auditing and relations with third-party vendors, in a purely harassing effort to try the company and not the facts of the case. This discovery should not be allowed even if it was timely, which it is not. Fire is prepared to file a motion for protective order, motion to quash, or other appropriate order in advance of the depositions in order to stay the same, as the Court may direct. It is understood that the filing of this request for a Pretrial Discovery Conference tolls the time for filing a motion to compel discovery on the disputed issues for the number of days between the filing of the request and issuance by the Court of a subsequent order pertaining to the discovery dispute. Opposing Party was served with a copy of REQUEST FOR PRETRIAL DISCOVERY CONFERENCE on: 6/9/2022 Date Pursuant to Local Rule 2.1.17(A)(1), any opposition to this request for a Pretrial Discovery Conference must also be filed on an approved form and must be filed within five (5) court days of receipt of the request for a Pretrial Discovery Conference and must be served on the opposing party. | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 6/9/2022 James V. Weixel s/ James V. Weixel Date Type or Print Name Signature of Party or Attorney for Party PCV-70 ROS-19 REQUEST FOR PRETRIAL DISCOVERY CONFERENCE Page 2 of 2 Mandatory Local Rule 2.1.17& a nw 10 Wl 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Edward Funez et vs. Fire Insurance Exchange Fresno Superior Court Case No. 19CECG02755 I am employed in the County of San Francisco, State of California. I am over the age of 18 and not a party to the within action; my business address is 101 Montgomery Street, Suite 1800, San Francisco, California 94104. On June 9, 2022, I served the foregoing document(s) described as REQUEST FOR PRETRIAL DISCOVERY CONFERENCE on the interested parties in this action by placing the copies thereof enclosed in sealed envelopes addressed as follows: J. Edward Kerley, Esq. Connor M. Day, Esq. Dylan L. Schaffer, Esq. Ferber Law, A Professional Corporation Yameen Omidi, Esq. 2603 Camino Ramon, Suite 385 KERLEY SCHAFFER, LLP San Ramon, CA 94583 1939 Harrison Street, Suite 900 Tel: (925) 355-9088/Fax: (925) 263-1676 Oakland, CA 94612 cday@ferberlaw.com Telephone: (510) 379-5801 Attorneys for Defendant American Facsimile: (510) 228-0350 Contractors Indemnity Company service@kslaw.us Attorneys for Plaintiff Edward Funez Patrick S. Schoenburg Alexi P. Antoniou Wood Smith Henning &Berman LLP 7108 North Fresno Street, Suite 250 Fresno, CA 93720-2952 Tel: (559) 437-2860/Fax: (559) 438-1350 pschoenburg@wshblaw.com aantoniou@wshblaw.com Attorneys for Defendant Benevento's Cleaning &Restoration Service Inc. dba Service Master by Benevento ONLY BY ELECTRONIC TRANSMISSION. Only by emailing the document(s) to the persons at the e-mail address(es). This is necessitated during the declared National Emergency due to the Coronavirus (COVID-19) pandemic because this office will be working remotely, not able to send physical mail as usual, and is therefore using only electronic mail. No electronic message or other indication that the transmission was unsuccessful was received within a reasonable time after the transmission. We will provide a physical copy, upon request only, when we return to the office at the conclusion of the national emergency. 1 PROOF OF SERVICEI declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on June 9, 2022 at San Francisco, California. FC bitly 2 PROOF OF SERVICE