Preview
Becherer
Kannett &
Schweitzer
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Mark S. Kannett (SBN 104572)
Shahrad Milanfar (SBN 201126)
Jennifer K. Thai (SBN 258612)
BECHERER KANNETT & SCHWEITZER
1255 Powell Street
Emeryville, CA 94608
Telephone: (510) 658-3600
Facsimile: (510) 658-1151
Attorneys for Defendant
Bridgestone Firestone North American Tire, LLC,
successor to Bridgestone Firestone, Inc.
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
SEP 21 2010
Clerk of the Court
BY: JUDITH NUNEZ
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
RUFUS ALEXANDER,
Plaintiff,
vs.
ASBESTOS DEFENDANTS (BP), et al.,
Defendants.
tt
CASE NO. CGC-08-274719
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION
BY BRIDGESTONE FIRESTONE NORTH
AMERICAN TIRE, LLC, TO COMPEL
DISCOVERY RESPONSES, AND FOR
MONETARY SANCTIONS AND
TERMINATING SANCTIONS
Date: Nov. 18, 2010
Time: 1:30-p.m.
Dept.: 220
Judge Hon. Harold E. Kahn
Complaint Filed: July 1, 2008
Trial Date: Not assigned
MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC510-658-3600
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I. INTRODUCTION
Bridgestone Firestone North American Tire, LLC (hereinafter “Bridgestone”) moves
to compel discovery responses and requests sanctions. Plaintiff Rufus Alexander has failed
to provide responses to any of Bridgestone’s discovery requests. Counsel! for Bridgestone
has repeatedly attempted to meet and confer with in pro per Plaintiff about these issues and
granted Plaintiff numerous extensions to provide responses. Even after this Court had
ordered that he respond to all outstanding discovery by June 30, 2010, Plaintiff still failed to
respond. It has been over eight months since Plaintiff's discovery responses were due, and
he has yet to provide responses to Bridgestone’s discovery requests. As such, Bridgestone
has no choice but to file this motion to compel discovery responses. Bridgestone is also
seeking terminating sanctions.
Tl, FACTUAL BACKGROUND
Brayton Purcell was relieved as counsel for Plaintiff on October 30, 2009. See
Exhibit A to Thai Decl. and Thai Decl., J 2. During his deposition in June 2009, while he was
still represented by counsel, Plaintiff did not identify Bridgestone. Plaintiff admitted that he
had never heard of Worldbestos brakes and had no recollection of removing or installing
Worldbestos brand brakes. Id. Plaintiff has not provided anything else to suggest a
relationship between Bridgestone and Plaintiffs alleged disease.
On November 20, 2009, Bridgestone propounded Special Interrogatories, Set One,
Requests for Production of Documents, Set One, and Requests for Admissions, Set One to
Plaintiff. See Exhibits B through D to Jennifer K. Thai’s declaration (Thai Decl.), respectively,
and Thai Decl., JJ 3-5.
Bridgestone’s counsel granted several extensions for Plaintiff's responses to
Bridgestone’s written discovery. On January 7, 2010, Bridgestone’s counsel sent Plaintiff a
letter informing Plaintiff that his responses were due on December 28, 2009 and that she
would give him an extension until January 21, 2010 to provide responses. See Exhibit E to
Thai Decl. and Thai Decl. J 6.
2
MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC,Becherer
Kannett &
Schweitzer
510-658.3600
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On January 25, 2010 Bridgestone’s counsel spoke to Plaintiff telephonically
regarding the missing discovery responses. Plaintiff informed Bridgestone’s counsel that he
was in the process of obtaining counsel to assist him in preparing responses to
Bridgestone’s requests. Bridgestone’s counsel agreed to extend the deadline for his
responses from January 21, 2009 to February 10, 2010. Plaintiff assured Bridgestone’s
counsel that he would contact her if he was unable to respond by this deadline. Thai Decl. 7
7.
On February 11, 2010 Bridgestone’s counsel sent a letter to Plaintiff reminding him
of the January 25% telephone conversation and requesting that Plaintiff contact her or
provide verified responses by February 19, 2010. See Exhibit F to Thai Decl. and Thai Decl.
78.
On February 16, 2010 Plaintiff called Bridgestone’s counsel to inform her that he was
still in the process of contacting firms to assist him with Bridgestone’s discovery requests.
As a courtesy, Bridgestone’s counsel agreed to grant a third extension on Plaintiffs”
discovery responses to March 3, 2010. Bridgestone’s counsel instructed Plaintiff to inform
her if he was unable to respond by this time. This telephonic conversation was confirmed in
Bridgestone’s counsel’s February 16, 2010 letter to Plaintiff. In the letter Bridgestone’s
counsel also warned Plaintiff that if he did not respond to Bridgestone’s discovery requests
by March 3, 2010, that Bridgestone will have no choice but to file a motion to compel his
responses. See Exhibit G to Thai Decl. and Thai Decl. f 11. Plaintiff did not respond to
discovery by this date.
On March 4, 2010 Bridgestone’s counsel sent another Jetter informing Plaintiff that
she has yet to receive his responses and requesting he provide responses by March 11,
2010. See Exhibit H to Thai Decl. and Thai Decl. f 10.
On March 5, 2010 Plaintiff informed Bridgestone’s counsel via telephone that he was
mailing his responses to Bridgestone’s questions. On March 9, 2010, Bridgestone’s counsel
received Plaintiffs mailing. However, it did not contain responses to Bridgestone’s
discovery requests. Rather it contained Bridgestone’s counsel’s letter of March 4, 2010 and
3
MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC,Becherer
Kannett &
Schweitzer
1255
Powell Si.
Emeryville, CA
94608
510-658-3600
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discovery requests from another defendant in this case. Exhibit ] to Thai Decl. and Thai
Decl. J 12.
On March 12, 2010 Bridgestone’s counsel sent a letter to Plaintiff informing him that
she had received his letter but that it did not contain answers to Bridgestone’s questions.
Exhibit J to Thai Decl. and Thai Decl. J 13. Bridgestone’s counsel informed Plaintiff that she
was attaching the three sets of questions which Bridgestone had originally sent on
November 20, 2009 and instructed Plaintiff to provide answers to these questions by March
24, 2010. Jd. Bridgestone’s counsel also included verifications, for each of the sets of
questions. Id. Bridgestone’s counsel also requested that he provide the documents
responsive to Bridgestone’s Request for Production of Documents by March 24, 2010. Id.
Bridgestone’s counsel warned that if he did not respond the all three sets of questions by
March 24, 2010 Bridgestone will be forced to file a motion to compel Plaintiffs answers by
March 30, 2010. Jd.
On March 15, 2010 Plaintiff called Bridgestone’s counsel, informing her that his
papers were destroyed two years ago when his house burned down. He then stated that his
papers were with prospective attorneys. Bridgestone’s counsel asked Plaintiff to answer
the questions to the best of his knowledge. Bridgestone’s counsel also clarified what the
verifications were. Plaintiff stated that he understood and would provide answers ona
separate paper. Thai Decl. J 14.
On March 18, 2010 Plaintiff called Bridgestone’s counsel, informing her that he sent
everything. Thai Decl. J 15.
On March 19, 2010 Bridgestone’s counsel received Plaintiffs mailing, which
consisted of Plaintiffs Standard Asbestos Case Interrogatories which Brayton Purcell had
assisted him in drafting in August of 2008 with some notations in the margins inapplicable
to Bridgestone. See Exhibit K to Thai Decl. and Thai Decl. | 16. The mailing also included
verification pages Bridgestone’s counsel] had sent in the March 15, 2010 letter, which
Plaintiff signed. Plaintiff also enclosed an appointment notification and an examination
4
MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC,Becherer
Kannett &
Schweitzer
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Powel St
Emeryville, CA
94608
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request from Discovery Diagnostics, Inc. for May of 2009 for chest x-rays, and a printout
from the Mesothelioma Resource Center. /d.
On April 6, 2010, Plaintiff left me messages telephonically to check if Bridgestone’s
counsel had received the documents and to find out what more he needed to do. Thai Decl.
q17.
On April 9, 2010, Bridgestone’s counsel returned Plaintiff's phone call to inform him
that what he sent was nonresponsive. Plaintiff stated he would call back to discuss further.
He never did. Thai Decl. J 18.
This Court at a case management conference on April 29, 2010, ordered a discovery
stay as-to motions to compel further responses to any written discovery until the next case
management conference on August 4, 2010. The Court ordered defendants with
outstanding discovery to re-send written discovery requests. Plaintiff was ordered to
respond by June 30, 2010. See Exhibit L to Thai Decl. and Thai Decl. J 19.
On May 17, 2010, Bridgestone re-sent its discovery requests to Plaintiff and gave
Plaintiff two additional days past the court ordered response time to July 2, 2010. See
Exhibit M to Thai Decl. and Thai Decl. J 20.
Bridgestone never received any responses from Plaintiff on or after July 2, 2010.
Thai Decl. J 21.
Bridgestone sent another letter to Plaintiff on August 6, 2010, requesting that
Plaintiff provide responses by August 20, 2010. Plaintiff did not respond to this letter. See
Exhibit N to Thai Decl. and Thai Decl. { 22.
Bridgestone has not received any responses to its discovery requests to date. Thai
Decl. J 23.
After these exhaustive efforts to meet and confer, counsel for Bridgestone has no
choice but to file a motion to compel.
5
MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC,Ill. DISCUSSION
2] A. BRIDGESTONE'S MOTION TO COMPEL SHOULD BE GRANTED BECAUSE
PLAINTIFF HAS FAILED TO RESPOND TO ANY OF BRIDGESTONE’S WRITTEN
3 DISCOVERY REQUESTS
4 1. Bridgestone’s Motion to Compel Should Be Granted Because Plaintiff Has
5 Failed to Respond to Bridgestone’s Special Interrogatories
6 The remedy for failure to respond to special interrogatories is a motion to compel
7 | responses to the interrogatories. C.C.P. § 2030.290(b). All that need be shown in the
g | moving papers is that discovery was properly served, that the time to respond has expired,
9 and that no proper response was served. Leach v. Superior Court (1980) 111 Cal.App.3d
902, 905-906. Verification is required by California Code of Civil Procedure Section
10 q
ll 2030.250.
12 The clear consequences of delay are the waiver of objections, including claims of|
13 privilege and work product, and a waiver of any right to exercise the option to produce
14 writings. C.C.P. § 2030.290(a); Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-906.
15 Bridgestone propounded a set of discovery, which included special interrogatories
16 on November 20, 2009. See Thai Decl., Exhibit B and Thai Decl., {| 3. No responses were
7 received on the due date, December 28, 2009, which was the 35% day following service by
18 mail. C.C.P. §§ 2030.260, 1013 and Thai Decl., | 6. Nor were responses received after the
19 court-mandated deadline for Plaintiff to respond. The only thing Plaintiff provided
Bridgestone during the eight months since his discovery responses were due are
20
nonresponsive documents. Plaintiff has waived his objections by failing to respond. As
21
Bridgestone has yet to receive any responses to its special interrogatories, Bridgestone’s
22
motion to compel Plaintiff's responses to special interrogatories should be granted.
23 2. Bridgestone’s Motion to Compel Should Be Granted Because Plaintiff Has|
Failed to Respond to Bridgestone’s Request for Production of
Becherer 94 D.
Kannett & jocuments
Schweitz
omer 25 The remedy for failure to respond to a request for production documents is a motion
Powell St 26 | to compel answers and production. C.C.P. § 2031.300(b). Just like interrogatories, all that)
94608
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27 | need be shown in the moving papers is that discovery was properly served, that the time to
28 | respond has expired, and that no proper response was served. Leach v. Superior Court,
6
MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC,Becherer
Kannett &
Schweitzer
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(1980), supra at 905-906. Verification is required by California Code of Civil Procedure}
Section 2031.250.
Here, requests for production of documents were properly served on November 20,
2009 via mail. See Thai Decl., Exhibit C and Thai Decl, J 4. Just like the special|
interrogatories, no responses were received on the due date, December 28, 2009, which was
the 35" day following service by mail or anytime thereafter. C.C.P. §§ 2031.260, 1013 and
Thai Decl., { 6. Eight months later, Bridgestone still has not received responses to its
request for production of documents. Plaintiff has waived objections and any right to
exercise the option to produce writings. C.C.P. § 2031.300(a). As Bridgestone has yet to
receive responses, Bridgestone’s motion to compel Plaintiff's responses to requests for]
production of document should be granted.
3. Bridgestone’s Motion to Compel Should Be Granted Because Plaintiff Has'
Failed to Respond to Bridgestone’s Request for Admissions
The remedy for Plaintiff's failure to respond to requests for admissions is a motion to
compel answers. C.C.P. § 2033.280(b). All that need be shown in the moving papers is that
discovery was properly served, that the time to respond has expired, and that no proper
response was served. Leach v. Superior Court (1980), supra at 905-906. Verification is
required by California Code of Civil Procedure Section 2033.240.
Bridgestone propounded a set of discovery, which included a request for admissions.
Just like the special interrogatories and requests for production of documents, no responses
were received on the due date, December 28, 2009, which was the 35% day following
service by mail or anytime after that. C.C.P. §§ 2033.250(a), 1013 and Thai Decl., J 6. As
such, Plaintiff has waived objections, including claims of privilege and work product. C.C.P.
§ 2033.280. As Bridgestone has yet to receive responses, Bridgestone’s motion to compel
Plaintiff's responses to requests for admissions should be granted.
Despite exhaustive attempts to meet and confer with Plaintiff, Bridgestone has yet to
receive Plaintiff's responses to Bridgestone’s special interrogatories, request for production
of documents, and request for admissions. See Thai Decl., [J 6-23. As a result, Bridgestone
is forced to file this motion to compel. Since Bridgestone has not received Plaintiff's
7
MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC,Becherer
Kannett &
Schweitzer
1285
Powell St.
Emeryville, CA
94608
510-658-3600
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responses, which are over eight months overdue, the Court should order Plaintiff to provide
verified responses to Bridgestone’s special interrogatories.
B. THE COURT SHOULD GRANT SANCTIONS AS IT SEES FIT
California Code of Civil Procedure § 2030.290(c), § 2031.300(c), and §
2033.280(c) provides that a court shall impose a monetary sanction under Chapter
7 (commencing with Section 2023,010) against any party, person or attorney who
unsuccessfully makes or opposes a motion to compe! responses to interrogatories,
inspection demands, and requests for admissions, unless it finds that the one subject
to the sanctions acted with substantial justification or that other circumstances make
the imposition of the sanction unjust.
California Code of Civil Procedure § 2023.010 provides, in part:
Misuses of the discovery process include, but are not limited to
the following: . .. (b) Using a discovery method in a manner that
does not comply with its specified procedures; (c) Employing a
discovery method in a manner or to an extent that causes
unwarranted annoyance, embarrassment, or oppression, or
undue burden and-expense; (d) Failing to respond or submit to
an authorized method of discovery; ... (f) Making an evasive
response to discovery; . . . (h) Making or opposing,
unsuccessfully and without substantial justification, a motion to
compel or to limit discovery; (i) Failing to confer in person, by
telephone, or by letter with an opposing party or attorney in a
reasonable and good faith attempt to resolve informally any
dispute concerning discovery...
The Court should impose monetary sanctions for any and all of the abuses set forth
in Section 2023.010. Defendant has been completely stonewalled in discovery. Plaintiff!
chose to ignore the discovery, and then further failed to cooperate in providing proper
responses after an extensive meet and confer process. Not one interrogatory, request for
production, or request for admission has been answered.
As Plaintiff has failed to properly respond to discovery, and continues to do so, after|
an extensive meet and confer process, Bridgestone requests that the court impose sanctions
as it sees fit.
8
MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC,GQ BES IS ENTITLED TO AN ORDER FOR TERMINATING SANCTIONS
2 California Code of Civil Procedure Section 2023.010, defines Misuses of Discovery
8 process in part as failing to respond or to submit to an authorized method of discovery and
4 disobeying a court order to provide discovery. If any party engages in such behavior,
5 among others, the following sanctions may be imposed under CCP 2023.030: An order
6 dismissing the action & an order imposing contempt of court sanctions.
? To date, Plaintiff has not answered the above-referenced discovery, even after he
8 was ordered by the Court to do so almost three months ago, and even after BFS spent nine
? months meeting and conferring with Plaintiff.
° Plaintiff's total disregard for the judicial process is grounds for terminating
1 sanctions. Plaintiff has not given-any indication that he is going to meaningfully participate
2 in this litigation or the discovery process. Therefore, plaintiffs case should be dismissed
18 with prejudice, if they continue disregarding his discovery obligations.
14 IV. CONCLUSION
s Based on the foregoing, defendant Bridgestone respectfully requests that this Court
16 order the following within ten calendar days of the hearing of this matter:
iv 1 That Plaintiff issue a verified response to Bridgestone’s special
8 interrogatories, without objections, at the offices of Becherer Kannett &|
9 Schweitzer;
20 2. That Plaintiff issue a verified response to Bridgestone’s request for|
21 production of documents, without objections, at the offices of Becherer|
22 Kannett & Schweitzer;
23 3. That Plaintiff issue a verified response to Bridgestone’s request for|
Ronee 24 admissions, without objections, at the offices of Becherer Kannett &|
Schweitzer
ns 25 Schweitzer; and
Eyal ca 26 4, That Plaintiff pay monetary sanctions as the court sees fit.
mae 27 5. The Court should issue an order awarding terminating sanctions for Plaintiffs
28 failure to comply with plaintiffs discovery obligations, if Plaintiff does not}
9
MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC,provide verified discovery responses and file a proof of service with the Court
within 10 days of the hearing, If Plaintiff fails to file a proof within 10 days,
the Court’s order should automatically dismiss the case with prejudice.
Dated: September 21, 2010 BECHERER KANNETT & SCHWEITZER
oO an aur &Y NY
ire, LLC, successor to Bridgestone
10 Firestone, Inc.
Becherer
Kannett & 24
Schweitzer
35
Powell St
Emepyille,ca 20
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MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC,Becherer
Kannett &
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PROOF OF SERVICE BY ELECTRONIC TRANSMISSION
I, Barbara Golstein, declare that I am, and was at the time of service of the documents
herein referred to, over the age of 18 years, and not a party to the action; and | am employed
in the County of Alameda, State of California. My business address is 1255 Powell Street,
Emeryville, California 94608.
On September 21, 2010, I electronically served the document(s) via LexisNexis File &
Serve described as:
« MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION BY BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC
TO COMPEL DISCOVERY RESPONSES AND FOR MONETARY
SANCTIONS AND TERMINATING SANCTIONS
on the recipients designated on the Transmission Receipt located on the LexisNexis File &
Serve website.
I declare under penalty of perjury pursuant to the laws of the State of California that
the foregoing is true and correct and that this declaration was executed jpn September 21,
2010, at Emeryville, California.
Barbara Golstein
i
MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC,Becherer
Kannett &
Schweitzer
1255
Powell St
Emeryville, CA
94608
510-658-3600
oOo on Don FW NY +
NO a a a sR
oO WN DO UW FF YO N KF ©
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PROOF OF SERVICE
I, Barbara Golstein, declare that ! am employed in the County of Alameda, State of
California; I am over the age of eighteen (18) years and not a party to the within entitled
action; my business address is 1255 Powell Street, Emeryville, California 94608.
On September 21, 2010, I caused to be served the foregoing:
. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION BY BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE,
LLC TO COMPEL DISCOVERY RESPONSES AND FOR MONETARY
SANCTIONS AND TERMINATING SANCTIONS
In said action by placing a true copy thereof enclosed in a sealed envelope and served in the
manner and/or manners described below to each of the parties herein and addressed as
follows:
Plaintiff, In Pro Per Rufus Alexander
170 Cashmere Street, No. D
San Francisco, CA 94124
DX] (By Mail) I deposited such envelope with postage thereon fully prepaid to be placed in
the United States Mail at Emeryville, California. | am familiar with the mail collection
practices of Becherer Kannett & Schweitzer Attorneys and pursuant to those practices the
envelope would be deposited with the United States Postal Service the same day.
CJ By Personal Delivery) I caused such envelope to be delivered by hand to the office of
the addressee(s).
CL @y Overnight Courier) | caused such envelope to be delivered via overnight courier
service to the addressee(s) designated.
(Via Facsimile) | caused said document(s) to be transmitted to the facsimile number(s)
of the addressee(s) designated.
I declare under penalty of perjury that the foregoing i is true ang correct and that this
Barbara Golstein
12
MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC,
Preview
Becherer Kannett & Schweitzer oO wnt Dn a FB WON YW NN NY NY NNNYD Ne Be eh ee ee es oa HF GB oS KF FCO DADA HAR HN EO Mark S. Kannett (SBN 104572) Shahrad Milanfar (SBN 201126) Jennifer K. Thai (SBN 258612) BECHERER KANNETT & SCHWEITZER 1255 Powell Street Emeryville, CA 94608 Telephone: (510) 658-3600 Facsimile: (510) 658-1151 Attorneys for Defendant Bridgestone Firestone North American Tire, LLC, successor to Bridgestone Firestone, Inc. ELECTRONICALLY FILED Superior Court of California, County of San Francisco SEP 21 2010 Clerk of the Court BY: JUDITH NUNEZ Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO RUFUS ALEXANDER, Plaintiff, vs. ASBESTOS DEFENDANTS (BP), et al., Defendants. tt CASE NO. CGC-08-274719 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC, TO COMPEL DISCOVERY RESPONSES, AND FOR MONETARY SANCTIONS AND TERMINATING SANCTIONS Date: Nov. 18, 2010 Time: 1:30-p.m. Dept.: 220 Judge Hon. Harold E. Kahn Complaint Filed: July 1, 2008 Trial Date: Not assigned MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC510-658-3600 oO wn nn Da aA Ff WOW NY KF NNN Ye wee ee Be ee ei Oo FP OO ON A MW BRB WY KF OD 23 I. INTRODUCTION Bridgestone Firestone North American Tire, LLC (hereinafter “Bridgestone”) moves to compel discovery responses and requests sanctions. Plaintiff Rufus Alexander has failed to provide responses to any of Bridgestone’s discovery requests. Counsel! for Bridgestone has repeatedly attempted to meet and confer with in pro per Plaintiff about these issues and granted Plaintiff numerous extensions to provide responses. Even after this Court had ordered that he respond to all outstanding discovery by June 30, 2010, Plaintiff still failed to respond. It has been over eight months since Plaintiff's discovery responses were due, and he has yet to provide responses to Bridgestone’s discovery requests. As such, Bridgestone has no choice but to file this motion to compel discovery responses. Bridgestone is also seeking terminating sanctions. Tl, FACTUAL BACKGROUND Brayton Purcell was relieved as counsel for Plaintiff on October 30, 2009. See Exhibit A to Thai Decl. and Thai Decl., J 2. During his deposition in June 2009, while he was still represented by counsel, Plaintiff did not identify Bridgestone. Plaintiff admitted that he had never heard of Worldbestos brakes and had no recollection of removing or installing Worldbestos brand brakes. Id. Plaintiff has not provided anything else to suggest a relationship between Bridgestone and Plaintiffs alleged disease. On November 20, 2009, Bridgestone propounded Special Interrogatories, Set One, Requests for Production of Documents, Set One, and Requests for Admissions, Set One to Plaintiff. See Exhibits B through D to Jennifer K. Thai’s declaration (Thai Decl.), respectively, and Thai Decl., JJ 3-5. Bridgestone’s counsel granted several extensions for Plaintiff's responses to Bridgestone’s written discovery. On January 7, 2010, Bridgestone’s counsel sent Plaintiff a letter informing Plaintiff that his responses were due on December 28, 2009 and that she would give him an extension until January 21, 2010 to provide responses. See Exhibit E to Thai Decl. and Thai Decl. J 6. 2 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC,Becherer Kannett & Schweitzer 510-658.3600 WN NH HNN ND NPB Be ee ee eee oN aad oS SF FCO w&ON DHA ER wWHKHE OO on nN an A wn On January 25, 2010 Bridgestone’s counsel spoke to Plaintiff telephonically regarding the missing discovery responses. Plaintiff informed Bridgestone’s counsel that he was in the process of obtaining counsel to assist him in preparing responses to Bridgestone’s requests. Bridgestone’s counsel agreed to extend the deadline for his responses from January 21, 2009 to February 10, 2010. Plaintiff assured Bridgestone’s counsel that he would contact her if he was unable to respond by this deadline. Thai Decl. 7 7. On February 11, 2010 Bridgestone’s counsel sent a letter to Plaintiff reminding him of the January 25% telephone conversation and requesting that Plaintiff contact her or provide verified responses by February 19, 2010. See Exhibit F to Thai Decl. and Thai Decl. 78. On February 16, 2010 Plaintiff called Bridgestone’s counsel to inform her that he was still in the process of contacting firms to assist him with Bridgestone’s discovery requests. As a courtesy, Bridgestone’s counsel agreed to grant a third extension on Plaintiffs” discovery responses to March 3, 2010. Bridgestone’s counsel instructed Plaintiff to inform her if he was unable to respond by this time. This telephonic conversation was confirmed in Bridgestone’s counsel’s February 16, 2010 letter to Plaintiff. In the letter Bridgestone’s counsel also warned Plaintiff that if he did not respond to Bridgestone’s discovery requests by March 3, 2010, that Bridgestone will have no choice but to file a motion to compel his responses. See Exhibit G to Thai Decl. and Thai Decl. f 11. Plaintiff did not respond to discovery by this date. On March 4, 2010 Bridgestone’s counsel sent another Jetter informing Plaintiff that she has yet to receive his responses and requesting he provide responses by March 11, 2010. See Exhibit H to Thai Decl. and Thai Decl. f 10. On March 5, 2010 Plaintiff informed Bridgestone’s counsel via telephone that he was mailing his responses to Bridgestone’s questions. On March 9, 2010, Bridgestone’s counsel received Plaintiffs mailing. However, it did not contain responses to Bridgestone’s discovery requests. Rather it contained Bridgestone’s counsel’s letter of March 4, 2010 and 3 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC,Becherer Kannett & Schweitzer 1255 Powell Si. Emeryville, CA 94608 510-658-3600 oO Tn Da fF WN De Bee Be Be we ew eB ee oO em ND HA RONDE OO 21 discovery requests from another defendant in this case. Exhibit ] to Thai Decl. and Thai Decl. J 12. On March 12, 2010 Bridgestone’s counsel sent a letter to Plaintiff informing him that she had received his letter but that it did not contain answers to Bridgestone’s questions. Exhibit J to Thai Decl. and Thai Decl. J 13. Bridgestone’s counsel informed Plaintiff that she was attaching the three sets of questions which Bridgestone had originally sent on November 20, 2009 and instructed Plaintiff to provide answers to these questions by March 24, 2010. Jd. Bridgestone’s counsel also included verifications, for each of the sets of questions. Id. Bridgestone’s counsel also requested that he provide the documents responsive to Bridgestone’s Request for Production of Documents by March 24, 2010. Id. Bridgestone’s counsel warned that if he did not respond the all three sets of questions by March 24, 2010 Bridgestone will be forced to file a motion to compel Plaintiffs answers by March 30, 2010. Jd. On March 15, 2010 Plaintiff called Bridgestone’s counsel, informing her that his papers were destroyed two years ago when his house burned down. He then stated that his papers were with prospective attorneys. Bridgestone’s counsel asked Plaintiff to answer the questions to the best of his knowledge. Bridgestone’s counsel also clarified what the verifications were. Plaintiff stated that he understood and would provide answers ona separate paper. Thai Decl. J 14. On March 18, 2010 Plaintiff called Bridgestone’s counsel, informing her that he sent everything. Thai Decl. J 15. On March 19, 2010 Bridgestone’s counsel received Plaintiffs mailing, which consisted of Plaintiffs Standard Asbestos Case Interrogatories which Brayton Purcell had assisted him in drafting in August of 2008 with some notations in the margins inapplicable to Bridgestone. See Exhibit K to Thai Decl. and Thai Decl. | 16. The mailing also included verification pages Bridgestone’s counsel] had sent in the March 15, 2010 letter, which Plaintiff signed. Plaintiff also enclosed an appointment notification and an examination 4 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC,Becherer Kannett & Schweitzer 1255 Powel St Emeryville, CA 94608 510-658-3600 oO own Aun FB WN °o request from Discovery Diagnostics, Inc. for May of 2009 for chest x-rays, and a printout from the Mesothelioma Resource Center. /d. On April 6, 2010, Plaintiff left me messages telephonically to check if Bridgestone’s counsel had received the documents and to find out what more he needed to do. Thai Decl. q17. On April 9, 2010, Bridgestone’s counsel returned Plaintiff's phone call to inform him that what he sent was nonresponsive. Plaintiff stated he would call back to discuss further. He never did. Thai Decl. J 18. This Court at a case management conference on April 29, 2010, ordered a discovery stay as-to motions to compel further responses to any written discovery until the next case management conference on August 4, 2010. The Court ordered defendants with outstanding discovery to re-send written discovery requests. Plaintiff was ordered to respond by June 30, 2010. See Exhibit L to Thai Decl. and Thai Decl. J 19. On May 17, 2010, Bridgestone re-sent its discovery requests to Plaintiff and gave Plaintiff two additional days past the court ordered response time to July 2, 2010. See Exhibit M to Thai Decl. and Thai Decl. J 20. Bridgestone never received any responses from Plaintiff on or after July 2, 2010. Thai Decl. J 21. Bridgestone sent another letter to Plaintiff on August 6, 2010, requesting that Plaintiff provide responses by August 20, 2010. Plaintiff did not respond to this letter. See Exhibit N to Thai Decl. and Thai Decl. { 22. Bridgestone has not received any responses to its discovery requests to date. Thai Decl. J 23. After these exhaustive efforts to meet and confer, counsel for Bridgestone has no choice but to file a motion to compel. 5 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC,Ill. DISCUSSION 2] A. BRIDGESTONE'S MOTION TO COMPEL SHOULD BE GRANTED BECAUSE PLAINTIFF HAS FAILED TO RESPOND TO ANY OF BRIDGESTONE’S WRITTEN 3 DISCOVERY REQUESTS 4 1. Bridgestone’s Motion to Compel Should Be Granted Because Plaintiff Has 5 Failed to Respond to Bridgestone’s Special Interrogatories 6 The remedy for failure to respond to special interrogatories is a motion to compel 7 | responses to the interrogatories. C.C.P. § 2030.290(b). All that need be shown in the g | moving papers is that discovery was properly served, that the time to respond has expired, 9 and that no proper response was served. Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-906. Verification is required by California Code of Civil Procedure Section 10 q ll 2030.250. 12 The clear consequences of delay are the waiver of objections, including claims of| 13 privilege and work product, and a waiver of any right to exercise the option to produce 14 writings. C.C.P. § 2030.290(a); Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-906. 15 Bridgestone propounded a set of discovery, which included special interrogatories 16 on November 20, 2009. See Thai Decl., Exhibit B and Thai Decl., {| 3. No responses were 7 received on the due date, December 28, 2009, which was the 35% day following service by 18 mail. C.C.P. §§ 2030.260, 1013 and Thai Decl., | 6. Nor were responses received after the 19 court-mandated deadline for Plaintiff to respond. The only thing Plaintiff provided Bridgestone during the eight months since his discovery responses were due are 20 nonresponsive documents. Plaintiff has waived his objections by failing to respond. As 21 Bridgestone has yet to receive any responses to its special interrogatories, Bridgestone’s 22 motion to compel Plaintiff's responses to special interrogatories should be granted. 23 2. Bridgestone’s Motion to Compel Should Be Granted Because Plaintiff Has| Failed to Respond to Bridgestone’s Request for Production of Becherer 94 D. Kannett & jocuments Schweitz omer 25 The remedy for failure to respond to a request for production documents is a motion Powell St 26 | to compel answers and production. C.C.P. § 2031.300(b). Just like interrogatories, all that) 94608 510-658-2600 27 | need be shown in the moving papers is that discovery was properly served, that the time to 28 | respond has expired, and that no proper response was served. Leach v. Superior Court, 6 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC,Becherer Kannett & Schweitzer 1255 Powell St. Emeryville, CA 94608 510.658.3600 be oO on nar WwW N 10 27 28 (1980), supra at 905-906. Verification is required by California Code of Civil Procedure} Section 2031.250. Here, requests for production of documents were properly served on November 20, 2009 via mail. See Thai Decl., Exhibit C and Thai Decl, J 4. Just like the special| interrogatories, no responses were received on the due date, December 28, 2009, which was the 35" day following service by mail or anytime thereafter. C.C.P. §§ 2031.260, 1013 and Thai Decl., { 6. Eight months later, Bridgestone still has not received responses to its request for production of documents. Plaintiff has waived objections and any right to exercise the option to produce writings. C.C.P. § 2031.300(a). As Bridgestone has yet to receive responses, Bridgestone’s motion to compel Plaintiff's responses to requests for] production of document should be granted. 3. Bridgestone’s Motion to Compel Should Be Granted Because Plaintiff Has' Failed to Respond to Bridgestone’s Request for Admissions The remedy for Plaintiff's failure to respond to requests for admissions is a motion to compel answers. C.C.P. § 2033.280(b). All that need be shown in the moving papers is that discovery was properly served, that the time to respond has expired, and that no proper response was served. Leach v. Superior Court (1980), supra at 905-906. Verification is required by California Code of Civil Procedure Section 2033.240. Bridgestone propounded a set of discovery, which included a request for admissions. Just like the special interrogatories and requests for production of documents, no responses were received on the due date, December 28, 2009, which was the 35% day following service by mail or anytime after that. C.C.P. §§ 2033.250(a), 1013 and Thai Decl., J 6. As such, Plaintiff has waived objections, including claims of privilege and work product. C.C.P. § 2033.280. As Bridgestone has yet to receive responses, Bridgestone’s motion to compel Plaintiff's responses to requests for admissions should be granted. Despite exhaustive attempts to meet and confer with Plaintiff, Bridgestone has yet to receive Plaintiff's responses to Bridgestone’s special interrogatories, request for production of documents, and request for admissions. See Thai Decl., [J 6-23. As a result, Bridgestone is forced to file this motion to compel. Since Bridgestone has not received Plaintiff's 7 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC,Becherer Kannett & Schweitzer 1285 Powell St. Emeryville, CA 94608 510-658-3600 oO wonn Dn a FF Ww NY fF NNN NY NNN BP Bee Be Be eee eS A ak ®@NH F&F FS OO OANA HD PB HN HY OD 27 28 responses, which are over eight months overdue, the Court should order Plaintiff to provide verified responses to Bridgestone’s special interrogatories. B. THE COURT SHOULD GRANT SANCTIONS AS IT SEES FIT California Code of Civil Procedure § 2030.290(c), § 2031.300(c), and § 2033.280(c) provides that a court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023,010) against any party, person or attorney who unsuccessfully makes or opposes a motion to compe! responses to interrogatories, inspection demands, and requests for admissions, unless it finds that the one subject to the sanctions acted with substantial justification or that other circumstances make the imposition of the sanction unjust. California Code of Civil Procedure § 2023.010 provides, in part: Misuses of the discovery process include, but are not limited to the following: . .. (b) Using a discovery method in a manner that does not comply with its specified procedures; (c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and-expense; (d) Failing to respond or submit to an authorized method of discovery; ... (f) Making an evasive response to discovery; . . . (h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery; (i) Failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery... The Court should impose monetary sanctions for any and all of the abuses set forth in Section 2023.010. Defendant has been completely stonewalled in discovery. Plaintiff! chose to ignore the discovery, and then further failed to cooperate in providing proper responses after an extensive meet and confer process. Not one interrogatory, request for production, or request for admission has been answered. As Plaintiff has failed to properly respond to discovery, and continues to do so, after| an extensive meet and confer process, Bridgestone requests that the court impose sanctions as it sees fit. 8 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC,GQ BES IS ENTITLED TO AN ORDER FOR TERMINATING SANCTIONS 2 California Code of Civil Procedure Section 2023.010, defines Misuses of Discovery 8 process in part as failing to respond or to submit to an authorized method of discovery and 4 disobeying a court order to provide discovery. If any party engages in such behavior, 5 among others, the following sanctions may be imposed under CCP 2023.030: An order 6 dismissing the action & an order imposing contempt of court sanctions. ? To date, Plaintiff has not answered the above-referenced discovery, even after he 8 was ordered by the Court to do so almost three months ago, and even after BFS spent nine ? months meeting and conferring with Plaintiff. ° Plaintiff's total disregard for the judicial process is grounds for terminating 1 sanctions. Plaintiff has not given-any indication that he is going to meaningfully participate 2 in this litigation or the discovery process. Therefore, plaintiffs case should be dismissed 18 with prejudice, if they continue disregarding his discovery obligations. 14 IV. CONCLUSION s Based on the foregoing, defendant Bridgestone respectfully requests that this Court 16 order the following within ten calendar days of the hearing of this matter: iv 1 That Plaintiff issue a verified response to Bridgestone’s special 8 interrogatories, without objections, at the offices of Becherer Kannett &| 9 Schweitzer; 20 2. That Plaintiff issue a verified response to Bridgestone’s request for| 21 production of documents, without objections, at the offices of Becherer| 22 Kannett & Schweitzer; 23 3. That Plaintiff issue a verified response to Bridgestone’s request for| Ronee 24 admissions, without objections, at the offices of Becherer Kannett &| Schweitzer ns 25 Schweitzer; and Eyal ca 26 4, That Plaintiff pay monetary sanctions as the court sees fit. mae 27 5. The Court should issue an order awarding terminating sanctions for Plaintiffs 28 failure to comply with plaintiffs discovery obligations, if Plaintiff does not} 9 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC,provide verified discovery responses and file a proof of service with the Court within 10 days of the hearing, If Plaintiff fails to file a proof within 10 days, the Court’s order should automatically dismiss the case with prejudice. Dated: September 21, 2010 BECHERER KANNETT & SCHWEITZER oO an aur &Y NY ire, LLC, successor to Bridgestone 10 Firestone, Inc. Becherer Kannett & 24 Schweitzer 35 Powell St Emepyille,ca 20 10 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC,Becherer Kannett & Schweitzer 510-658-3600 0 wn nwt ®O© DY ee °o 13 14° PROOF OF SERVICE BY ELECTRONIC TRANSMISSION I, Barbara Golstein, declare that I am, and was at the time of service of the documents herein referred to, over the age of 18 years, and not a party to the action; and | am employed in the County of Alameda, State of California. My business address is 1255 Powell Street, Emeryville, California 94608. On September 21, 2010, I electronically served the document(s) via LexisNexis File & Serve described as: « MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC TO COMPEL DISCOVERY RESPONSES AND FOR MONETARY SANCTIONS AND TERMINATING SANCTIONS on the recipients designated on the Transmission Receipt located on the LexisNexis File & Serve website. I declare under penalty of perjury pursuant to the laws of the State of California that the foregoing is true and correct and that this declaration was executed jpn September 21, 2010, at Emeryville, California. Barbara Golstein i MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC,Becherer Kannett & Schweitzer 1255 Powell St Emeryville, CA 94608 510-658-3600 oOo on Don FW NY + NO a a a sR oO WN DO UW FF YO N KF © 21 PROOF OF SERVICE I, Barbara Golstein, declare that ! am employed in the County of Alameda, State of California; I am over the age of eighteen (18) years and not a party to the within entitled action; my business address is 1255 Powell Street, Emeryville, California 94608. On September 21, 2010, I caused to be served the foregoing: . MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC TO COMPEL DISCOVERY RESPONSES AND FOR MONETARY SANCTIONS AND TERMINATING SANCTIONS In said action by placing a true copy thereof enclosed in a sealed envelope and served in the manner and/or manners described below to each of the parties herein and addressed as follows: Plaintiff, In Pro Per Rufus Alexander 170 Cashmere Street, No. D San Francisco, CA 94124 DX] (By Mail) I deposited such envelope with postage thereon fully prepaid to be placed in the United States Mail at Emeryville, California. | am familiar with the mail collection practices of Becherer Kannett & Schweitzer Attorneys and pursuant to those practices the envelope would be deposited with the United States Postal Service the same day. CJ By Personal Delivery) I caused such envelope to be delivered by hand to the office of the addressee(s). CL @y Overnight Courier) | caused such envelope to be delivered via overnight courier service to the addressee(s) designated. (Via Facsimile) | caused said document(s) to be transmitted to the facsimile number(s) of the addressee(s) designated. I declare under penalty of perjury that the foregoing i is true ang correct and that this Barbara Golstein 12 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC,