Motion-Secondary: GODOFREDO PIQUE VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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                                | ALAN. BRAYTON, ESQ,, 8.B, #73685
| RNB SPOUSE Res Sa ts
24) NANCY T. WILL .
BRAYTON**PURCELL LLP ELECTRONICALLY
3]| Attorneys at Law FILED
222 Rush Landing Road . Superior Court of California,
4] P.O"Box 6169 County of San Francisco
Novato, California 94948-6169
5 |] (415) 898-1555 . NOV 19 2009
GORDON PARK-LI, Clerk
6 || Attorneys for Plaintiff BY: ANNIE PASCUAL
4 Deputy Clerk
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10
11 | GODOFREDO PIQUE, ) ASBESTOS
‘ ) No. 274659
12 Plaintiff, )
o $ ) MEMORANDUM OF POINTS AND
3.2 2 13] vs. ) AUTHORITIES IN SUPPORT OF
323 8 ) MOTION TO STAY AND TO QUASH
gage 14|| ASBESTOS DEFENDANTS (BP) ) | DEFENDANT FORD MOTOR
Se5283 COMPANY’S NOTICE OF DEPOSITIONS
§SS822 15 AFTER DISCOVERY CUT-OFF AND
BSalee OBJECTION TO DEFENDANT FORD
Elz 9 16 MOTOR COMPANY'S NOTICE OF
Sa = : . DEPOSITIONS AFTER DISCOVERY
= Z 17 CUT-OFF
18 C.C-P. §2024.010, §2024.020 and
§2025.410.
19
‘ _ Date: December 22, 2009
20 Time: 9:00 a.m,
Department: 612, Everett Hewlett, Jr.
21 Trial Date: December 14, 2009
Action Filed: May 8, 2008
22
23 ‘ RELEVANT PROCEDURAL FACTS AND ARGUMENT
24 Plaintiff GODOFREDO PIQUE’s undertying personal injury matter was filed on May 8,
‘ 25 2008. Defendant FORD was served with the Summons and Complaint on May 13, 2008 and
26 || filed its Answer on May 27, 2008. At the time of filing, the case was assigned a status and
27]| setting conference date of April 16, 2009. On April 16, 2009 the case was assigned a trial date of|
28 || Décember 14, 2009. Code of Civil Procedure §2025.020, mandates that discovery be completed
KAlujorech2050sinidipda-rn FORD guaeh dep. wpd i NEw.
MEMORANDUM OF POINTS AND AUTHORITIES in SUPPORT OF MOTION TO STAY AND TO QUASH DEFENDANT FORD
i OTOR COMPANY’S NOTICE OF DEPOSITIONS AFTER DISCOVERY CUT-OFF AND OBJECTION TO DEFENDANT FORD
| Moto COMPANY'S NOTICE OF DEPOSIHIONS AFTER DISCOVERY CUT-OFFoO DU Oo a A A

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on or before the 30" day before the initial trial date. Given that Mr: PIQUE’s initial trial date is
December 14, 2009, discovery closed on November 14, 2009. Pursuant to C.C.P. §2025.010,
discovery proceedings are deemed “completed” on the day a deposition begins. Ignoring the
Code‘of Civil Procedure, and apparently choosing to wait until the last minute to prepare for trial,
FORD scheduled the following depositions to begin well after the,close of discovery:
* Carles Medina- scheduled for November 20, 2009

United Parcel Service, Custodian of Records- scheduled for December 4, 2009

United Parcel Service, Person Most Knowledgeable- scheduled for December 4, 2009

Douglas Ray- scheduled for November 20, 2009

Rafael Ramos- scheduled for November 23, 2009 ;

East Bay Regional Parks District, COR- scheduled for Novernber 23, 2009

East Bay Regional Parks District, PMK- scheduled for November 23, 2009

Paul Golling- scheduled for December 1, 2009

FedEx Corp., COR- scheduled for December 1, 2009

FedEx Corp., PMK- scheduled for December 1, 2009 |

Robert Herron-scheduled for December 2, 2009 i

+ Francisco Meijia- scheduled for December 2, 2009

Arthur Hayes- scheduled for December 8, 2609

East Bay Automotive, COR- scheduled fer December 8,,2009

Hast Bay Automotive, PMK- scheduled for December 8! 2009

James Pettett- scheduled for December 8, 2009

Defendant FORD made the decision to wait and schedule these depositions late without
seeking leave by way of agreement with plaintiff, and without seeking leave of court by filing a
motion to reopen discovery pursuant to C_C.P. §2024.050. Plaintiff can only speculate that
FORD failed to bring a motion to reopen discovery because it is unable to articulate any good

cause to support such a motion. :

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Kelnjored i050 Sp tdipsia-mzn FORD guash-dep wed 2 2. I pow.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION 10 STAY AND TO WASH DEFENDANT FORD
MOTOR COMPANY'S NOTICE OF DEPOSITIONS AFTER DISCOVERY CUT-OFF AND OBIECT}
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Code of Civil Procedure § 2024.050(b)(2) provides that in pretcising its diseretion to
grant or deny a motion to re-open discovery, “the Court shall take jnto consideration any matter
relevant to the leave requested, including, but not limited to, the following; ... the diligence or
lack of diligence of the party seeking the discovery ... and the reasons the discovery was not
completed ...”. FORD filed its answer in this action nearly 18 months ago. In spite of having
been present in this action for that length of time, FORD failed to make any specific discovery
requests of plaintiff until late September, 2009, and failed to notice any witness depositions until
late October, 2609. FORD has provided no showing of diligence ‘and no reason why discovery
was not completed prior to the initial trial date. :

FORD should not be rewarded for its failure to prepare this case for trial and its failure to
abide by the Code of Civil Procedure. Code of Civil Procedure §,2024.050(033) further
provides that when the Court is considering allowing discovery {6 be re-opened, prejudice to the
parties should be reviewed. Plaintiff, defendants and the Court nave aright to rely on the
premise that a case is to ready for trial at the time of the initial wil date. This is true whether or
not the Court is able to assign Mr. PIQUE’s case to a trial department on December 14, 2009 as
scheduled. Code of Civil Procedure Section 2024.010{b) is clear that when a trial date is
continued, the discovery dates are not automatically continued. The alternative is to leave ali
parties in a continuous state of limbo until the case is assigned to atrial department. The natural
result of this is to delay the settlement process.

Based upon these facts, defendant FORD’s deposition ohices setting the above
depositions to commence after the close of discovery are defective and the depositions may not
properly go forward as scheduled as discovery is closed. Plaintiff hereby moves for an order
staying the depositions and quashing the deposition notices pursuant to C.C.P. §2025.410.

* On Thursday, November 12, 2009, plaintiff's counsel faxed a letter to Paul Lannus, of
Lankford & Crawford LLP, counsel of record for FORD in an attempt to meet and confer

regarding this issue. (See November 12, 2009 letter attached to the Declaration of Anne Acuna

as Exhibit A). Plaintiffs counsel stated the proper objections to the deposition notice and
requested FORD withdraw its notices so there would be no need to file the instant motion.

#Afojoretio9s05 p-FORD-guath-Aep wd 3 i NT,
MEMORANDUM OF POINTS AND AUTEORITIES IN SUPPORT OF MOTION TO STAY AND TO QUASH DEFENDANT FORD
MOTOR COMPANY'S NOTICE OF DEPOSITIONS AFTER DISCOVERY CUT-OFF AND} OBJECTION TO DEFENDANT FORD
MOTOR COMPANY’S NOTICE OF DEPOSITIONS AFTER DISCOVERY CUT-OFF

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Having not heard any response from Mr. Lannus, on November 14 2009, plaintiff's sent an e~
mail to Mr. Lannus attaching the letter of November 12, 2009. (See November 14, 2009 e-mail
correspondence attached to the Declaration of Anne Acuna as Exhibit B). On Monday,
November 16, 2009, Mr. Lannus responded to the e-mail and a time was set to discuss the matter
on November 17, 2009. During the discussion, plaintiff's position was reiterated regarding the
depositions being improperly set after the close of discovery. Mr. Lannus confirmed that there
had been no agreement between the parties to extend the discovery period. In spite of that
understanding, Mr. Lannus refused to withdraw the improper depapiton notices. Through
plaintif?” s letter objection FORD was put on notice that the deposition notices should be
withdrawn. FORD failed to withdraw the improper deposition notices.
: On November 19, 2009 plaintiff served formal Objections to FORD’s untimely Notice off
Taking Depositions on all parties. The objection clearly indicated to defendants that the
depositions as noticed by FORD were improper due to their being scheduled to commence after
the November 14, 2009 close of discovery. Through plaintiff's letter, mieet and confer, and
formal objections, FORD was put on notice that the deposition notices should be withdrawn.
FORD failed to withdraw the improper deposition notices. '

Plaintiff's counsel has attempted to resolve this issue with defendants so this motion
woilld not have to be necessary and the Court would not have to waste time dealing with this
matter. The issue here is very simple, FORD noticed depositions to commence beyond the
discovery cut-off, it has been made aware of the impropriety of that action, it has been given the
legal authority supporting the impropriety of that action, and witout explanation it has failed to
remedy the situation by withdrawing the deposition notices. To protect plaintiff's interests,
plaintit had no choice but to notice and calendar this motion in onder to stay the depositions
peiiding the Court’s order on this matter. |
Dated: _4 OQ BRAYTONPU

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Attorneys for Plat
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K0njured 09 s0sipidiptea may FORD quash dep wpe : 4 i NTW
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION 10 STAY AND 10 QUASI DEFENDANT TORD
MGTOR COMPANY'S NOTICE OF DEYOSITIONS AFTER DISCOVERY CUT-OFE ANDIOIIECTION TO DEFENDANT FORD
MOTOR COMPANY'S NOTICE OF DEPOSITIONS AFTER DISCOVERY CUT-OFF
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