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

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                                SO CoO ~~) GYRO WN

Eugene C. Blackard Jr. (Bar No. 142090)

Katherine P. Vilehez (Bar No. 212179) ELECTRONICALLY
ARCHER NORRIS FILED

A Professional Law Corporation Superior Court of California,
2033 North Main Street, Suite 800 County of San Francisco
PO Box 8035 JUN 25 2007
Walnut Creek, California 94596-3728 GORDON PARK-LI, Clerk
Telephone: 925.930.6600 BY: VANESSA WU
Facsimile: 925.930.6620 Deputy Clerk

Attorneys for Defendant _
GRAYBAR ELECTRIC COMPANY, INC.

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION
Case No, 443236

NANCY MARIE SCOTT, et al,

REPLY IN SUPPORT OF MOTION 'TO

Plamtiff, :
| VACATE TRIAL DATE

¥V,

Date: July 5, 2007
ACands, INC.,, et al., Time: 9:30 a.m,
Dept: 206

Defendant.

Date Filed: = July 20, 2005
Trial Date: = July 16, 2007

COMES NOW, Graybar Electric Company, Inc. (“Graybar”) and hereby submits this
Reply in Support of Motion to Vacate Trial Date.
I. INTRODUCTION AND STATEMENT GF FACTS
Graybar 1s simply seeking leave of this Court to allow it to conduct discovery on the only
evidence Plaintiffs have produced to support their claims against Graybar: two previously
undisclosed witnesses. Absent this opportunity, Graybar will be denied its Due Process right to a

fair trial as it will not be able te prepare a meaningful defense in this action.

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RIC 193/474423-]
REPT.Y IN SUPPORT OF MOTION TO VACATE TRIAL DATEow AM

A, Graybar Has Conducted Extensive Discovery in the Instant Action.

In their Opposition, Plaintiffs seem to be requesting that the Court deny Graybar its right
to conduct discovery, and thus, its Due Process right to a fair trial, on the alleged basis that
Graybar has not diligently engaged in discovery in this action. This is simply untrue.

During the pendency of this action, Graybar has conducted extensive discovery. Graybar
has participated, through its counsel, in all of the depositions in this action (six plaintiffs);
actively questioning all the deponents to see if they had any information to support their claims
against Graybar. In deposition, Plaintiffs provided no such information. (See the Declaration of
Katherine P. Vilchez (“Vilchez Dec.”) filed with the moving papers at Exhibits C-H.)

Moreover, counsel to Graybar has analyzed all of Plaintiffs’ responses to the General
Order interrogatories and requests for production to determine if Plaintiffs disclosed any facts,
witnesses, or documents to support their claims as against Graybar. Again, Plaintiffs failed to
provide any support for their claims against Graybar. (Vilchez Dec., Exs. A-B.)

Counsel to Graybar then prepared and propounded client-specific form interrogatories,
special interrogatories, requests for production, and requests for admission to Plaintiffs. (Vilobex
Dec., Exs. LL.) In response, Plaintilfs inappropriately objected to every special interrogatory and
request for production, refusing to provide any information to support their claims against
Graybar, Moreover, Plaintiffs denied cach request for admission, and responded substantively to
a single form interrogatory: Form Interrogatory 17.1. In Form Interrogatory 17.1, Plaintiffs were
again required to state all facts, witnesses, and documents that support their claims against
Graybar. Although Plaintiffs provided an extensive run-on response, Plaintiffs still failed to
disclose any information (including witnesses) to support their claims against Graybar.'
(Vilchez Dec., Bxs. M-P.)

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" ofnote, ‘fany facts, wimesses, or documents had heen disclosed in either deposition or *hrooul responses to writlea discovery,
‘Graybar would have corducted all fisther appropriate discovery.
RICISS/S74223-1 2

REPLY IN SUPPORT OF MOTION 10 VACATE TRIAL. DATEB. Graybar Has Sought Supplemental Responses to Its Client-Specific Written
Discovery.

In their Opposition, Plaintiffs further claim that Graybar failed to meet and confer on, or
seek supplemental responses to, Plaintiffs’ completely inadequate responses to Graybar’s client-
specific written discovery. (Sce Plaintiffs Opposition to the instant motion (“Opp.”) at 3:19-21.)
Again, this is untrue.

On February 16, 2007, counsel to Graybar drafied a letter to Plaintiffs’ counsel
specifically requesting that Plaintiffs supplement their responses to Graybar’s client-specific
written discovery (a fact known to Plaintiffs at the time of filing their opposition as this letter was
attached to a declaration filed in support of Graybar’s Motion For Summary Judgment). (See
Declaration of Katherine P. Vilchez in Support of Reply (“Vilchez Reply Dec.”) filed with the

moving papers at Exhibit A.) In fact, it is not Graybar, but Plaintif'. who failed to properly meet

and confer on their Responses. (Vilcher Reply Dec., €3.)
Cc Graybar was Barred from Deposing the Previously Undisclosed Witnesses.

Winally, in opposition, Plaintiff try to fault Graybar for not issuing subpoenas to the two
previously undisclosed witnesses. (Opp. at 4:4-5.) However, duc to Plaintiffs? failure to
previously disclose these witnesses, and their refusal to provide any contact information for them,
Graybar had no time to subpoena the witnesses prior to discovery closing.

As the Court is aware, these witnesses were first disclosed on June 1, 2007 in support of
Plaintiffs’ Opposition to Graybar’s Motion for Summary Judgment. Plaintiffs refused to provide
the contact information for said witnesses. (See the Declaration of Cesar A. Alvarado filed with
the moving papers at Paragraphs 4-5 and Exhibit C.)

Under the current trial date, discovery was closed as of June 16, 2007. To comply with
the Discovery Act, the witnesses would have to have been served with subpoenas by June 5,
2007. As such, Graybar had four days to locate and serve witnesses prior to discovery closing.
‘As Graybar had no time to conduct discovery relating to these witnesses, Graybar has been forced
to file the instant Motion to Vacate.

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RICI93/S74423-1 3

REPLY IN SUPPORT OF MOTION TO VACATE TRIAL DATE,As such, good cause exists to vacate the existing trial date to allow Graybar to conduct
discovery relating to these “new” witnesses so that it can adequately defend itself in this action.
Til ARGUMENT

A Denial of the Instant Motion to Vacate Would Constitute Reversible Error.

iL Case Law Supports the Granting of the instant Motion

In In re Marriage of Hoffmeister (1984) 161 Cal.App.34 1163, 1169-1170, an ex-wife
sought modification of a spousal support order to require increased support from her ex-husband.
At the hearing, the trial court denied the husband's motion for a continuance made on the ground
that he had received new evidence, the wife's amended financial statement, only four days prior to
the hearing and had inadequate time to conduct discovery. The Court of Appeal reversed,

holding that the refusal of the trial court to grant a reasonable continuance to enable the

husband to conduct discovery on the previously undisclosed evidence denied him a fair trial.

In so holding, the Court of Appeal opined that:
[tIhe trial judge must exercise his discretion with due regard to all
interests involved, and the refusal of a continuance which has the
practical effect of denying the applicant a fair hearing is
reversible error. [Citations omitted] Good cause for a
continuance may be established where a party has been surprised
by unoxpected testimony and requires a postponement to cable
him to meet it. [Citations omitted. |

In re Marriage of Hoffmeister, supra, at 1169.

For over 1 1/2 years, Graybar has conducted extensive discovery in an attempt to
determine the basis for Plaintifi® claims against it. (Vilchez Dec., Exs. A-L.) During this entire
time, Plaintiffs have provided no facts, witnesses or documents to support their claims. (Vilehez
Dec., Exs. A-M.) Now, after almost two years of providing no evidence, Plaintiffs have disclosed
two witnesses on the eve of triat to support their claims against Graybar. As such, Graybar is
faced with going to trial without any opportunity to prepare for trial by conducting discovery on

the only evidence Plaintiffs claim to have against it.

Under the current trial date, Graybar will be severely prejudiced because it is completely

unable to access these previously undisclosed witnesses, and thus, completely unable to prepare

RICISB/ST0823-1 4

REPLY IN SUPPORT GF MOTION TO VACATE TRIAL DATEfor trial, To expect that Graybar to go to trial with no opportunity prepare, while Plaintiffs have
had yeurs to prepare, patently projudices Graybar and violates Graybar’s Due Process right to a

fair trial. Pursuant to the holding in In re Marriage of Hoffmeister, supra, the instant Motion to

Vacate should be granted.
2. Plaintiffs’ Argument that the Instant Motion should be Denied because Graybar
Did Not Attempt to Conduct Further Discovery is Incorrect and Unsupported by

Case Law.

In their Opposition, Plaintiffs argue that Graybar should be denied the opportunity to
prepare for trial as it did not conduct further discovery, including seeking supplemental responses
and the filing ofa Motion to Compel Further Responses. (Opp. at 6:13-14.) This argument
should not be considered as it not only factually incorrect, but it is also supported by case law.
Initially, Graybar did request that Plaintifs provide supplemental responses to Graybar’s client-
specific written discovery. (Vilchez Reply Dec., Ex. A.) Plaintifié failed to respond. (Vilchez
Reply Dec. 3.)

Moreover, Graybar had no duty lo compel further responses. In In re Marriage of
Hoffmeister, supra, the initial date of the hearing was postponed so that the ex-husband could
conduct discovery. During the ex-wife’s deposition, counsel to the ex-wife instructed her not to
answer several questions relating to discropancies in her request for increased spousal support.
The Court of Appeal rloted that the opportunity to compel a further response had no bearing on
the granting of a continuance:

ENS Appellant had ayailable an avenue to compel further
discovery if he contended that the information sought was not
properly covered by the attomey-client privilege. He could have
sought an order compelling respondent to answer pursuant to
Code of Civil Procedure section 2034. We do not purport to
determine on this appeal the likelihood of success of such a
motion. Whether properly asserted or not, respondent's invocation
of the privilege prevented discovery of the new [evidence] [ ]. It
seems only fair to allow appellant an opportunity to prepare to
challenge the figures when respondent later sought to introduce
‘them at the modification hearing.

In re Marriage of Hoffmeister, supra, at 1170-1171,

Plaintiffs contend that Jn re Marriage of Hoffmeister is distinguishable because, unlike

the appellant in éa re Marriage of Hoffmeister, Graybar had several months in which to conduct

RICI93/574523-1 35

REPLY IN SUPPORT OF MOION TO VACATE TRIAL DATEfurther discovery. Not only is this statement inaccurate, but the facts in Jn re Marriage of
Hoffmeister actually micror the facts in the instant action: (1) both the appellant in In re Marriage
of Hoffmeister and Graybar conducted discovery in the actions; (2) both the respondent in Jn re
Marriage of Hoffmeister and the Plaintiffs in the instant action refused to provide substantive
responses; (3) both the appellant in In re Marriage of Hoffmeister and Graybar had an avenue to
further attempt to elicit information (i.e. a motion to compel); (4) both chose not to take these
avenues; and, (5) at the last minute, both the respondent in Jn re Marriage of Hoffmeister and the
Plaintiffs in the instant action submitted new evidence in the action. As such, the case is directly
on point as the appellant in In re Marriage of Hoffmeister had the same opportunity as Graybar in
which to attempt to elicit further information during the discovery phase, and chose not to do so.
Despite diligont discovery efforts by Graybar throughout the pendency of the instant
action, Plaintiffs provided no facts, witnesses, or documents-to support their claims. Any
decision on behalf of Graybar to forgo filimg any motions relating to unknown witnesses has no
bearing on the instant motion. By objecting to the discovery and refusing to provide substantive
responses, Plaintifts prevented Graybar from acquiring the information at issue. In re Marriage
of Hoffmeister, supra, al 1170. As such, any argument that Graybar should be denied its right to
prepare for trial because it did not take further steps to uncover unknown evidence should not be

considered as is without merit.

3. The Case Law Cited by Plaintiffs Not Applicable, and Thus, Should Not be
Considered.

Plaintifffs rely on Biles v. Exxon Mobile Corp. (2004) 124 Cal.App.4th 1315, to support its
argument that the instant Motion should be denied. However, Biles v. Exxon Mobile Corp.
merely stands for the proposition that plaintiff does not have an affirmative duty to supplement
discovery responses with later acquired information when they reserve their right to do so in their
responses. Biles, supra, at 1319. Biles, supra, is inapplicable as Graybar is not arguing that
Plaintiffs should have supplemented their responses absent request. Graybar is simply arguing
that Plaintiffs late disclosure of witnesses threatens Graybar’s Due Process Right to a fair trial as.

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REPLY IN SGPPORT OF MOTION TO VACAIGraybar has no ability to conduct discovery, and thus no opportunity to propare a meaningful
defense.
B. Plaintiffs Will Not be Prejudiced by Continuation of the Trial Date.

In their Opposition, Plaintiffs argue that their experts will be inconvenienced if the trial
date is vacated. However, Plaintiffs are the ones who disclosed new evidence on the eve of trial.

“A litigant is entitled to a fair share of the court's time, and may not be deprived of an opportunity

to present his case fully and fairly because someone else is being inconvenienced . ...” Hays v.
Viscome (1953) 122 Cal.App.2d 135, 140-141. Moreover, any cost or inconvenience relating to a
postponement of this trial is far outweighed by Graybar’s Due Process tight to prepare for trial.
‘The instant motion does not pose prejudice to Plaintiffs. Indeed, the only party that stands
to suffer significant prejudice is Graybar, if the current trial date is not vacated. Accordingly, an
order vacating the current trial date is necessary, indeed mandated, under the circumstances.
Cc Plaintiffs’ Claim that the Instant Motion is Moot Because Discovery is Closed is
Insincere and Without Merit.
‘The very statute that supports the instant motion to vacate, California Rules of Court, Rule
3.1335, allows for trial dates to be vacated for the particular purpose of engaging in further
discovery so as to prepare for trial. Moreover, this motion was filed on June 8, 2007, before
discovery was closed. Finally. Graybar could not have filed (and had no reason to file) the

motion sooner as Plaintiffs had not disclosed the witnesses at issue. As such, Plaintiffs’

contention that this Motion moot is inappropriate and should not be considered.

IV. CONCLUSION
Based upon the foregoing, good cause exists for vacating the existing trial date, extending

all discovery deadlines, and resetting it for a new trial date and/or status and setting conference,
so as to provide Graybar with its constitutionally mandated Due Process right to prepare a

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REPLY IN SUPPORT OF MOTION TO VACATE TRIAL DATEawk wn

meaningful defense at uial. Thus, Graybar respectfully requests that this Court grant the instant

Motion and order the present trial date vacated, with all discovery deadlines extended.

Dated: JuneQ2._, 2007 Respectfully submitted,
ARCHER NORRIS

atherine P. Vilchez.
Aitomeys for Defendant
GRAYBAR BLECTRIC COMPANY, INC.

ICI 93/574423-1 8

~ REPLY IN SUPPORT OF MOTION TO VACATE TRIAL DATE