Motion-Secondary: NANCY MARIE SCOTT et al VS. AC AND S, INC. et al

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Stephen M. Fishback, Esq. (State Bar No. 191646)

Daniel L. Keller, Esq. (State Bar No. 191738)
J. Bruce Jackson, Esq. (State Bar No. 173215)
KELLER FISHBACK & JACKSON LLP
28720 Roadside Drive, Suite 201

Agoura Hills, CA 91301

Telephone: 818.879.8033

Facsimile: 818.292.8891

Attomeys for Plaintiffs

ELECTRONICALLY
FILED

Superior Court of California,

County of San Francisco

JUN 28 2007

GORDON PARK-LI, Clerk

BY: JUDITH NUNEZ

Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA
CITY AND COUNTY OF SAN FRANCISCO
(UNLIMITED JURISDICTION)

NANCY MARIE SCOTT, individually and as
Successor-in-interest to DENZIL SCOTT;
Decedent; JOANNE MARIE WOLFARTH;
MICHAEL GERALD SCOTT; ROBERT
DAVID SCOTT; THOMAS CAREY SCOTT;
MARY DENISE SOBOLIK and FIRST DOE
through TENTH DOE, inclusive,

Plaintiffs,
VS.

AC AND §, INC., etal.,

Defendants.

Case No. 443236

PLAINTIFFS’ OPPOSITION TO
DEFENDANT CRANE CO. AND SQUARE
D COMPANY’S MOTION TO RE-OPEN
DISCOVERY

Date: June 29 2007

Time: 10:30 a.m.

Dept.: 610, Commissioner Bruce E. Chan
Trial Date: July 16, 2007

I. INTRODUCTION

The Court must deny defendant CRANE CO’S, thereafter “CRANE”), and SQUARE D

COMPANY ’s, (hereafter “SQAURE D”), motion to reopen discovery. CRANE CO and

SQUARE D have been aware of the discovery cut off in this case for well over a year.

Nevertheless, defendants have failed to exercise due diligence in completing discovery during the

PLALNTIFES' OF POSITION TO DEFENDANT {RANE CO. AND SQAURE D COMPANY'S; MOTIOON TO RE-OPEN DISCOY ERY

Page |permissible time frame, and now seeks leave to conduct discovery on the eve of trial without good
cause.

Defendants attempt to blame plaintiffs for “sandbagging” them with a “last minute”
witness is misplaced. Plaintiffs complied with C.C.P § 2024.020 by discovering and disclosing
‘Mel Gadd and Frank Vassallo during the permissible discovery period. Plaintiffs have not violated
any discovery order, any discovery rule, or otherwise prevented defendants from conducting
discovery in a timely manner. Plaintiffs assert that defendant’s own failure to diligently pursue
discovery or properly subpocna Mr. Gadd or Mr. Vassallo during the permissible discovery period
does not constitute good cause to reopen discovery. Defendant's request to reopen discovery in
order to depose Mr. Gadd or Mr. Vassallo should therefore be denied.

I. STATEMENT OF FACTS:

‘The present wrongful death case was filed by decedent DENZIL SCOTT’s heirs on July
20, 2005, Despite discovery in this action being open for nearly 2 years, defendant CRANE. did
not serve any special discovery on plaintiffs until January 2, 2007. SQUARE D did not serve any
special discovery on plaintiffs until January 12,2007. Plaintiffs served timely objections to both
of these defendants special discovery. CRANE and SQUARE J) never met and conferred with
plaintiffs regarding plaintiffs’ objections and never moved to compel further discovery responses.
As stated in their objections to special discovery, plaintiffs continued to conduct discovery in this
case until its close on June 16", 2007. On June 1, 2007, plaintiffs disclosed Mel Gadd of Walnut
Creek, CA. in opposition to CRANE’s summary judgment motion and Frank Vassallo of San
Francisco, CA in opposition to SQUARE D’s summary judgment motion. As far as plaintiffs are
aware, CRANE and SQUARE P did not serve timely and proper subpoenas on Mel Gadd or Frank
Vassallo.

Now that discovery is closed and trial is imminent, CRANE CO and SQAURE D seeks leave
of Court to reopen discovery so that they can properly serve Mel Gadd and Frank Vassallo with
valid deposition subpoenas. However, defendant’s failure to diligently pursue discovery and
failure to properly subpocna Mr. Gadd or Mr. Vassallo does not constitute good cause for

reopening discovery.

PLALNFW FS" OFFOSITION TO DEFENDANT CRANE CO. AND SQAURED COMPANY'S; MOTIUON TO RF-OPEN DISCOVERY Page2UL =LEGAL ARGUMENT,

A MEL GADD AND FRANK VASSALLO WERE TIMELY AND PROPERLY
DISCLOSED BY PLAINTIFFS

Code of Civil Procedure § 2024.020 provides that any party shall be entitled as a matter of
right to complete discovery proceeding on or before the 30" day before trial, and to have motions
concerning discovery heard on or before the 15" day before trial.

Plaintiffs’ counsel diligently exercised their right to conduct discovery during the
permissible discovery period. As part of this discovery effort, plaintiffs’ counsel spent numerous
hours searching for coworkers that could be timely and properly disclosed before the discovery
cut-off of June 16". One of these individuals, Mel Gadd, was disclosed 16 days before the close
of discovery in response to CRANE's motion for summary judgment. Frank Vassallo was also
disclosed 16 days before the close of discovery in response to SQUARE D’s motion for summary
judgment.

Although plaintiffs’ disclosure of Mel Gadd and Frank Vassallo was proper, defendants
argue that disclosure of these witnesses on June 1“ justifies reopening discovery. If such an
argument were entertained every time a witness was disclosed towards the end of discovery, it
would render discovery cut off dates completely meaningless. In fact, it is not plaintiffs conduct,

but defendant’s conduct which must be evaluated in determining whether good cause exists.

B. CRANE AND SQUARE D HAVE FAILED TO SHOW GOOD CAUSE TO
REOPEN DISCOVERY

C.C.P. Section 2024.050(2) provides that the court should consider “the diligence or lack
of diligence of the party seeking the discovery or the hearing of a discovery motion, and the
reasons that the discovery was not completed or that the discovery motion was not heard earlier”
STERLING has simply failed to demonstrate due diligence in pursuing and completing discovery
in this case,

Although discovery in this case has been open for nearly 2 years, CRANE did not serve
special discovery until January 2, 2007. SQUARE D did net serve discovery until January 12,
2007. When plaintiffs served timely objections to defendants’ special discovery, defendants

elected not to meet and confer regarding plaintiffs’ objections or move to compel further

LAINTIEFS'0FP0s1710N TO DEFENDANT CRANE CO AND SOURED COMPANY'S; MOTIOON TO RE-OFEN DISCOVERY Page3Rw NR

responses, CRANE and SQUARE D likewise elected to file their summary judgments on the last
possible date so that they would be heard just prior to discovery closing. Defendants elected not to
follow through with their formal discovery, hoping that plaintifts’ would be unable to find any
witnesses prior to the deadline for opposing their summary judgment.

Once plaintiffs disclosed Mel Gadd and lrank Vassallo in response to summary judgment,

CRANE and SQUARE D failed to subpoena Mr. Gadd or Mr. Vassallo and waited 22 days to
pring the present motion. Defendants claim that plaintiffs refused to agree to produce these
witnesses voluntarily. More accurately, plaintiffs counsel did not agree to accept service of a
subpoena upon Mr. Gadd or Mr. Vassallo because they have not been authorized to do so.
Plaintiffs counsel merely required that defendants follow proper procedures in timely and properly
serving non-party witnesses with subpoenas:

C.C.P. § 1985 provides that the process by which a non-party witness may be compelled to
attend a deposition is a subpoena.

C.CP. § 2020.22(b)(1) requires that the deposition subpocna must be personally served
upon a natural person in order to compel that person to attend a deposition.

C.C.P. § 2025.270(a) requires that a deposition must be scheduled at least 10 days after
issuance of the subpoena, or 20 days after issuance where a subpocna requires a deponent to
appear and produce documents.

Defendants did not even attempt to comply with any of the aforementioned requirements as
defendant failed to timely and properly serve Mel Gadd or Frank Vassallo with valid sut
Now defendants seek leave to reopen discovery so that they can correct their mistake. However,
defendant's failure to diligently pursue discovery and failure to properly subpoena Mel Gadd or
Frank Vassallo does in no way constitutes due diligence on behalf of CRANE or SQUARE D, and

is certainly a far cry from good causc to allow defendants to conduct last minute discovery.

Cc PLAINTIFFS WILL BE PREJUDICED LF DISCOVERY IS RE-OPENED

CCP. Section 2024.050(3) provides that the court should consider “any likelihood that
permitting discovery or the hearing of « discovery motion will prevent the case from going to trial

‘on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other

PLAINTIFFS" OPPOS:VION TO DEFENDANT CRANE CO. AND SQAURE D COMPANY'S; MOTIOON TO REOPEN BISCOVENY Page 4party.”

If CRANE and SQAURE D are permitted to reopen discovery to depose Mr. Gadd and
Mr. Vassallo, this would encourage defendants in this case, and other cases, to move to reopen
discovery every very time a witness was identified in response to a summary judgment motion,
thereby rendering discovery deadlines meaningless. This is particularly problematic when
plaintiffs have completed discovery during the permissible time frame in reliance on a trial date of
July 16", More specifically, plaintiffs counsel has speat numerous hours scheduling depositions
of plaintiffs" expert witnesses — including Charles Ay, Dr. Carl Brodkin, Dr. Barry Castleman, Ken
Cohen, Richard Hatfield, Dr. Barry Horn and Dr. William Salyer. Plaintiffs have likewise
accepted numerous defense expert depositions which must get completed before trial. If this,
Court were to reopen discovery to allow the deposition of Mel Gadd and Krank Vassallo, and
possibly othet coworkers, then numerous of these expert depositions would likely need to be
rescheduled so that the experts could consider the additional evidence. Rescheduling experts at

the last minute is not only time consuming and burdensome on plaintiffs, it is often impossible.

IV. CONCLUSION
Based on the foregoing, plaintiffs respectfully request that the Court deny defendant's
CRANE and SQUARE D’s Motion to reopen discovery.

Dated: June 28, 2007 KELLER FISHBACK & JACKSON LLP

By:
J. Brite Fackson
Attomeys for Plaintiffs

-PLAINITHYS' OFROSIFTON TO DEFENDANT CRANECO, AND SQAURE D COMANY'S| MOTIOON FO RE-OPEN HSSCOVERY PageS