Party Discovery: HAROLD KOEPKE et al VS. FORD MOTOR COMPANY et al

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                                ezan, McClain,
Saterey,
yom 2
Greenwood &
Overman,
Professional Law 26
Corporation
ok London Market
3 Harrison Street,
Seo 27
ikland, CA 94607
(S10) 302-1000
x (6r0} 636-4013 28

Joseph D. Satterley, Esq. (C.S.B. 286890)
jsatterley@kazanlaw.com

Carole M. Bosch, Esq. (C.S.B. 239790)
cbosch@kazanlaw.com

KAZAN, McCLAIN, SATTERLEY, LYONS,
GREENWOOD & OBERMAN

A Professional Law Corporation

Jack London Market

55 Harrison Street, Suite 400

Oakland, California 94607

Telephone: (415) 302-1000

Attorneys for Plaintiffs

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

DEC 19 2013

Clerk of the Court
BY: ROMY RISK
Deputy Clerk

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SAN FRANCISCO

HAROLD KOEPKE AND
NANCY KARIDIS-KOEPKE

Plaintiff(s),
Vv.
FORD MOTOR COMPANY, et al.
Defendants.

CASE NO.; CGC13 276217

PLAINTIFFS’ EX PARTE APPLICATION
FOR AN ORDER SHORTENING TIME TO
BRIEF AND HEAR PLAINTIFFS’ MOTION
TO QUASH DEFENDANT BERRY &
BERRY’S AMENDED NOTICE OF
TAKING DEPOSITION OF HAROLD
KOEPKE AND REQUEST FOR
PRODUCTION OF DOCUMENTS,
PHOTOGRAPHS AND THINGS

DATE: December 19, 2013

TIME: 11:00 a.m.

DEPT: 503

ACTION FILED: December 3, 2013
TRIAL DATE: None to date

Plaintiffs hereby apply ex parte for an Order Shortening Time to file and serve earlier than

regularly provided by statute Plaintiffs’ Motion to Quash Designated Defense Counsel Berry &

Berry’s Amended Notice of Taking Deposition of Plaintiff Harold Koepke. Cal. Rules of Court,

Rule 3.1300, subd. (b). As set forth in the attached declaration of Carole M. Bosch, good cause

exists for the instant application because:

e Plaintiff Harold Koepke is terminally ill with mesothelioma. Timely and orderly taking

of Mr. Koepke’s deposition is of the essence.= 2 © Oe WH A BR YW ND

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‘azan, McCain,
Satterloy,
Lyons, 25
Greenwned &
Oberman,
Professionaliaw 26
Corporation
+4 London Market
Harrison Street,
‘Sena 27
and, CA 94607
‘510) 302-1000
x (510) 435-4913 28

In light of Mr. Koepke’s condition, Plaintiffs seek to proceed with the deposition as
soon as practicable after all defendants have appeared — no later than January 20, 2014.
The first available Court day to hear Plaintiffs’ Motion on regular time is January 22,
2014 — with Plaintiffs filing their motion on December 19, 2013.

At issue in the Motion to Quash is Berry & Berry’s failure to meet and confer in good
faith with Plaintiffs and defendants — in addition to failure to serve proper notice.

o Berry & Berry raced to serve notice of taking the deposition of Mr. Koepke
unilaterally on behalf of defendant Volkswagen of America before almost every
other defendant was served. The only purpose in racing to serve the deposition
notice was to gain priority in questioning.

o Berry & Berry failed to meet and confer with any defendant but Volkswagen
before serving the deposition notice. Because Plaintiffs filed the Complaint on
December 3, 2013 and only on December 17 completed service, Plaintiffs
expect most defendants will not have answered and will not be present at the
January 7, 2014 deposition that Berry & Berry noticed. Berry & Berry is
making no effort to ensure all defendants will be present or that all defendants
agree to the order of deposition. (See Exhibit G to the Declaration of Carole
Bosch at p. 12, showing not all defendants agree to the order of questioning.)

o Berry & Berry failed to meet and confer in good faith with Plaintiffs before
serving the deposition notice. Berry & Berry never inquired about Mr.
Koepke’s condition or concerned itself with the 14-hour limit on his deposition
pursuant to C.C.P. § 2025.290(b).

Berry & Berry’s notice of deposition on behalf of one defendant only and its failure to
meet and confer in good faith with plaintiffs and defendants regarding the deposition
undermine its role as Designated Defense Counsel and the purpose of the Court’s Jn Re.
Complex Asbestos Litigation Case Management Order of June 29, 2012 (hereinafter

CMO).

Ex Parte Application for Order Shortening Time to Brief and Hear Motion to Quash:1276573_1ocoU wm IND

CRW YD WH FF BW LY

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‘az0n, Metin,
Salieriey,
Lyon. 25
Greenwood &
Obermen,
Protessional aw 26
Corporation
:k London Market
‘Marison Sweet,
Seaoo 27
kane, CA $4607
510) 302-1000
xstjessagis 28

¢ Until the Court hears this Motion, the day, time, location, order of Plaintiff's deposition
will remain at issue.
¢ In light of Mr. Koepke’s terminal condition, Plaintiffs will be irreparably harmed if the
deposition of Mr. Koepke does not proceed in a timely and orderly fashion.
(Declaration of Carole M. Bosch, {| 2.)
Plaintiffs have followed the procedures set forth in California Rules of Court, Rule 3.1200
et seq. for bringing an Ex Parte Application. All parties were given proper, timely notice of this
ex parte application on December 18, 2013 prior to 10:00 a.m. (Declaration of Carole M.

Bosch, 3, Exhibit A.)

DATED: December 18, 2013 Respectfully submitted,

KAZAN, McCLAIN, SATTERELY, LYONS,
GREENWOOD & OBERMAN, A Professional Law
Corporation

oy. Cnt, (bn

Carole Bosch
Attomeys for Plaintiffs

Ex Parte Application for Order Shortening Time to Brief and Hear Motion to Quash:1276573_1‘azan, MeCtsin,
Sailerey,
Lyons, 25
Greenwood &
Obermen,
Professional Law 26
Corporation
x London Market
iHanison Street,
Sues 27
Hand, CA. 94607
510) 302-1000
xiste) 336-4013 28

MEMORANDUM OF POINTS AND AUTHORITIES

I Introduction

Good cause exists for an order shortening time to hear Plaintiffs’ Motion to Quash Berry &
Berry’s notice of taking deposition of Mr. Koepke because Mr. Koepke is terminally ill with
mesothelioma, his deposition needs to proceed in short order, and Berry & Berry is not engaging in
good faith meet and confer regarding the deposition on behalf of defendants and with Plaintiffs.
Rather, Berry & Berry is proceeding unilaterally on behalf of one defendant racing to notice the
deposition first without any consideration for other defendants, Plaintiffs condition, or the rules of
Civil Procedure. Until the Court hears this Motion, the day, time, location, order of Plaintiff's
deposition will not be settled and the parties will not be able to proceed with it.

Il. Background

On December 3, 2013, Plaintiffs filed their Complaint against more than thirty defendants.

On December 9, 2013, Berry & Berry served a notice of taking deposition of Mr. Koepke
by mail on Plaintiff and defendant Volkswagen of America. (Bosch Decl., Exhibit B.)

On December 13, 2013, Plaintiffs objected to improper service as no other defendant was
served. (Bosch Decl., Exhibit C.)

On December 17, 2013, Berry & Berry served an amended notice of taking the deposition
of Mr, Koepke on January 7, 2013, mail served all defendants but two. (Bosch Decl., Exhibit D.)
Service remains improper. In addition, Plaintiffs take issue with Berry & Berry’s notice on behalf
of one defendant prior to all defendants being even served. Berry & Berry is making no effort to
ensure all defendants will be present or that all defendants agree to the order of deposition.
Engaging in a race to notice the deposition of plaintiffs serves no purpose and undermines Berry &
Berry’s role as Designated Defense Counsel.

On December 17 and 18, Plaintiffs and Berry met and confer regarding Plaintiffs’ intent to
appear ex parte to seek an order shortening time to brief and hear Plaintiffs’ Motion to Quash.
(Bosch Decl., Exhibits E and F.) Berry & Berry refused to stipulate to expedited briefing and

hearing. (/d.)

Ex Parte Application for Order Shortening Time to Brief and Hear Motion to Quash:1276573_1oO © fm YD A F&F Ye NY He

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13

‘eran, MeCiain,
Saiteriey,
tone 25
Greonwood &
‘Oberman,
Professional Law 26
Corporation
London Markst
‘Harrison Street,
Sino 27
fiend, CA 94607
516) 302-1000
x(oi0) 835.4013 28

Ili. Good cause exists for this application

The Court, on its own Motion or on application for an order shortening time supported by a
declaration showing good cause, may prescribe shorter times for the filing and service of papers
than the times specified in Code of Civil Procedure section 1005. Cal. Rules of Court, Rule
3.1300, subd. (b).

Good cause exists here for an order shortening time to hear Plaintiffs’ Motion to Quash
because Berry & Berry will not meet and confer in good faith with Plaintiffs until the Court hears
the motion and decides the validity of Berry & Berry’s notice.

Mr. Koepke is terminally ill with mesothelioma and Plaintiffs intend to proceed with his
deposition as early as practicable no later than January 20, 2014 ~ once all defendants have
appeared. The first available Court day to hear Plaintiffs’ Motion on regular time is January 22,
2014.

Yet, until this Court hears Plaintiffs’ Motion, the parties will be unable to come to terms on
the day, time, location, order of Plaintiff's deposition and Mr. Koepke will be irreparably harmed if
his deposition does not proceed in short order as soon as all defendants have appeared.

IV. Conclusion

In light of Mr. Koepke’s terminal condition, the prejudice to be suffered if his deposition
does not proceed in a timely and orderly fashion, and the likely delays from Berry & Berry’s
refusal to meet and confer with Plaintiffs in good faith, Plaintiffs respectfully request the Court set

hearing on Plaintiffs’ Motion to Quash for January 9, 2013.

DATED: December 18, 2013 Respectfully submitted,

KAZAN, McCLAIN, SATTERELY, LYONS,
GREENWOOD & OBERMAN, A Professional Law
Corporation

By: (ust. (bat

Carole Bosch
Attomeys for Plaintiffs

Ex Parte Application for Order Shortening Time to Brief and Hear Motion to Quash:1276573_1