On December 17, 2010 a Party Discovery was filed involving a dispute between Ross, Jean, Ross, Robert, and Acco Engineered Systems, Inc., Advanced Mechanical, Advance Mechanical Contractors, Inc., Air Systems Mechanical Contractor, A & K Heating Company, Inc., Albay Construction Company, Allen-Simmons Heating & Sheet Metal Company Inc., Allied Fire Protection, Allied Sprinkler Company, Inc., Allsberry Mechanical Corporation, Anderson, Rowe & Buckley, Inc., Associated Insulation Of California, A. Teichert & Son, Inc., Balliet Bros. Construction Corporation, Banner Drywall & Painting Co. Inc., Barnes Construction Co., Bayer Cropscience Inc., Bayer Cropscience, Inc., Successor To Amchem, Bell Products Inc., Beta Mechanical Contractors, L.P., Bragg Investment Company, Inc., Cahill Construction Co., Inc., Cahill Construction Services, Inc., Cahill Contractors, Inc., California Drywall Co., Castro Construction, Inc., C.C. Moore & Co. Engineers, Cincinnati Valve Company, Cjr Plastering, Clausen-Patten, Inc., Clausen-Patten, Inc., A Dissolved Corporation, Climate Air, Inc., Climate Control Co., Inc., Collins Electrical Company, Inc., Commair Mechanical Services, Consolidated Insulation, Inc., Cosco Fire Protection, Inc., Cosco Sprinkler, Critchfield Mechanical, Inc., C & R Plastering, Inc., Csk Auto, Inc., Cupertino Electric, Inc., Delucchi Sheet Metal Works, Dilland Sederberg Plumbing, Does 1-8500, Domco Products Texas Inc., Domco Products Texas, L.P., Donovan Construction, Dorn Refrigeration, Dorn Refrigeration And Air Conditioning, Dpr Construction, Duro Dyne Corporation, D.W. Nicholson Corporation, D. Zelinsky & Sons, Inc., Emil J. Weber Electric Co., Erwin Mechanical Inc., Ex- Fme, Inc. (Fka Fischbach And Moore Electric,, Fairmont Hotel Company, Fluor Corporation, Foley Electric Co., Foley Electric, Inc., Fuller Floors, General Mills, Inc., Giampolini & Co., Graybar Electric Company, Inc., Hanson Permanente Cement, Inc. Formerly Known As, Harold Beasley Plumbing And Heating, Inc., Harry Lee Plumbing & Heating, H & C Investment Associates, Inc., Henry C. Beck Company, Imperial Plastering & Drywall, Insulation Specialties, Inc., James A. Nelson Co., Inc., Johnson Controls, Inc., Jones Plastering Company, Joseph Bruno Sheet Metal Co., Inc., J.T. Thorpe & Son, Inc., J.W. Mcclenahan Company, J.W. Mcclenahan Company, Inc., Kentile Floors, Inc., Laub Sheet Metal Works, Lone Star Industries, Inc., Mack Construction Co., Magee, Robert, Malm Metal Products, Inc., Marine Engineering And Supply Company, Marshco Auto Parts, Inc., Mattock Construction Company, Mcclure Electric, Inc., Metropolitan Life Insurance Company, Michael Brothers, Midstate Mechanical, Inc., Mitchell Bros. Truck Lines, Inc., Monsanto Company, Sued As "Pharmacia Corporation", Oakfabco, Inc., Ortho-Craft, Pacific Fireproofing, Pacific Mechanical Corporation, Parker Insulation Contracting & Supply Co. Inc., Perini Corporation, Pharmacia Corporation, Which Will Do Business In, Pribuss Engineering, Pribuss Engineering, Inc., Raymond Interior Systems-North, Red Top Electric Co. Emeryville, Inc., Robert Magee, Rollie R. French, Inc., Rollins Construction, Rountree Plumbing & Heating Inc., Scott Co. Of California, S F L, Inc., S.J. Amoroso Construction Co., Inc., Slakey Brothers, Inc., Sugden Engineering Co., Swinerton Builders, Temper Insulation, Temporary Plant Cleaners, Inc., Texaco, Inc., The Goodyear Tire & Rubber Company, The W.W. Henry Company, Tuttle And Bailey Corp, Van Mulder Sheetmetal, Van-Mulder Sheet Metal, Inc., Walnut Creek Sheet Metal, Furnace & Air, W.C. Thomason, W.C. Thompson, Webcor Builders, Inc., Westburne Supply, Inc., Willard Electric, Wright Schuchart Harbor, Wright Schuchart Harbor Company, Ross, Jean, Ross, Robert, for civil in the District Court of San Francisco County.
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Eugene C. Blackard Jr. (Bar No. 142090) Jasun C. Molinelli (Bar No. 204456) ARCHER NORRIS A Professional Law Corporation ELECTRONICALLY 2033 North Main Street, Suite 800 FILED Walnut Creek, California 94596-3759 Superior Court of California, Telephone: 925.930.6600 County of San Francisco Facsimile: 925.930.6620 APR 23 2013 Attorneys for Defendant aelerkof the Co urt CAHILL CONTRACTORS INC. Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO ROBERT ROSS and JEAN ROSS, Case No. CGC-10-275731 Plaintiffs, CAHILL CONTRACTORS INC'S MEMORANDUM OF POINTS AND v. AUTHORITIES IN SUPPORT OF OPPOSITION TO PLAINTIFFS’ MOTION C.C. MOORE & CO. ENGINEERS et al., TO COMPEL THE DEPOSITIONS OF THE PERSON MOST QUALIFIED AND Defendants. CUSTODIAN OF RECORDS OF DEFENDANT CAHILL CONTRACTORS INC. Date: April 30, 2013 Time: 9:00 a.m. Dept.: $03 Judge: Hon. Teri L. Jackson 1 INTRODUCTION Without waiving its objections made to Plaintiff's demand for production, Cahill Contractors, Inc. (Cahill) does not contend that the deposition at issue should not go forward. Despite plaintiff’s contentions that Cahill has been neglectful in producing its PMQ/COR, Cahill has consistently engaged in good faith meet and confer efforts in order to satisfy their obligations to respond to plaintiff's discovery requests. The difficulty in producing a qualified witness has been compounded by two recent developments. The first of which is, Cahill’s longtime PMOQ/COR, Darryl Diamond, informed us by written correspondence that he was retiring on January 3, 2013, one day before Plaintiff’s January 4, 2013 Notice of Taking PMQ/COR ABA 71572710-1 “MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPELSa aD Ww & WH Deposition on Cahill, and would no longer be available to provide testimony as Cahill’s PMQ/COR. The second hurdle this office has faced responding to plaintiff's request is that Cahill’s longtime attorney of record and the attorney formerly handling plaintiff's request and Cahill’s response, Cesar Alvarado, retired from the practice of law on April 1, 2013. Since the retirement of both persons, Cahill has been working overtime to identify, prepare and produce a new PMQ/COR, a task given the broad scope of plaintiff’s demand (1959 to 1980), which has been excessively difficult. However, Cahill has now identified its new corporate PMQ/COR and is working with plaintiff to produce him prior to the close of discovery. IL STATEMENT OF FACTS This is a personal injury case involving plaintiff Robert Ross’ work at various construction sites, some of which plaintiff has alleged Cahill was present sometime between 1959 and 1980. On January 3, 2013, Cahill’s longstanding PMQ/COR, Darryl Diamond, retired from Cahill and notified this office of his unavailability to serve as Cahill’s corporate PMQ/COR forever more. On January 4, 2013, plaintiff served its Notice of Taking PMQ/COR deposition and Request for Production of Documents on Cahill. Also on January 4, 2013, Cahill began its search to identify, prepare and produce a new corporate PMQ/COR. On January 17, 2013, Cahill served its Notice of Objection to plaintiff's request. On February 11, 2013, February 21, 2013 and March 14, 2013, plaintiff counsel and Cesar Alvarado from Archer Norris conducted a meet and confer process via e-mail. On April 1, 2013, Cesar Alvarado abruptly left the practice of law for personal reasons. On or about April 15, 2013, plaintiff and Archer Norris conducted further meet and confer via telephone regarding the discovery dispute. Archer Norris advised plaintiff of the difficulties it faced and informed plaintiff that it will work diligently to identify and produce a new corporate PMQ/COR for Cahill, ABLATLIST27L0-E 2 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPELRW Re we On or about April 19, 2013, Cahill identified its new corporate PMQ/COR and communicated the same and its intent to produce the witness to plaintiff via email. ‘This office continues to reach out to Plaintiffs in order to avoid court intervention and will provide plaintiff with dates for deposition on any mutually agreeable date in April or May 2013. 1, LEGAL ARGUMENT. A. This Court Has the Authority to Deny Plaintiff's Metion te Compel The Court is empowered to issue whatever order “justice requires” to protect a party or deponent against “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” California Code of Civil Procedure Section 2025.420. B. Plaintiffs’ Motion to Compel is Unwarranted as No Discovery Dispute Exists The Code of Civil Procedure section 2023.010 specifically provides: Misuses of the discovery process include, but are not limited to, the following: (i) Failing to confer in person, by telephone, or by letter with an opposing party. or attorney in a.ceasonable and good faith attempt to resolve informally any dispute concerming discovery .... In resolving disputes involving the scheduling of a deposition, counsel is required to contact the deponent to “inquire” about the appearance, and that counsel listen to the reasons offered and make a good faith attempt to resolve the issue by re-scheduling the deposition. (Leko y. Cornerstone Building Inspection Service, (2001) 86 Cal. 4th 1109, 1124) Here, Cahill has done everything in its powers to act with good faith. Counsel for Cahill, Cesar Alvarado consistently engaged in meet and confer efforts with Plaintiff until he abruptly left the practice of law for personal reasons on April 1, 2013. Cahill has suffered extreme difficulty also in identifying a new corporate PMQ/COR following its prior PMQ/COR’s retirement on January 3, 2013, one day prior to plaintiff's January 4, 2013 Notice of Deposition. Cahill has never acted unreasonably and has been in full cooperation with regard to the deposition at issue. Plaintiffs were and have always been aware that Cahill was willing to produce a deponent and was aware that Cahill was in the process of finding a new corporate PMQ/COR and securing available dates for the deposition prior to filing this motion. Such conduct by Plaintiffs potentially violates Code of Civil Procedure section 2023.010(1) and the principles of Leko v. AEL7UI572710-1 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPELCornerstone Building Inspection Services. By the time of the hearing on this motion, this issue should now be resolved in its entirety and the motion is moot. Plaintiffs’ motion should therefore be dismissed. Cc. Plaintiffs Have Not Adequately Met and Conferred to Resolve The Dispute Through Least Intrusive Means. Plaintiffs should seek least intrusive means to resolve a discovery dispute. Indeed, “counsel are obligated to engage in this process in good faith and cannot reject reasonable proposals without suffering the consequences... It is implicit that one of the purposes of [meet and confer| is to informally expedite litigation without requiring the parties to refile discovery when negotiations can resolve any disputes over what is intended or required." Manzetti v. Superior Court, (1993) 21 Cal. App. 4", 373, 379-80. Due to its diligent efforts under the difficult circumstances, Cahill is willing and ready to produce a representative for deposition, despite the lack of clarity and the overbroad scope as to the information and documents sought. As such, Plaintiffs prematurely filed a motion to compel without satisfying the good faith meet and confer obligations set forth by Manzetti. Instead of acknowledging that Cahill agreed to produce a PMK/COR for deposition at a mutually convenient time and place, Plaintiffs abandoned the meet and confer process and unnecessarily involved the court even after learning about Cahill’s hurdles. For these reasons, Plaintiffs’ motion to compel must be denied. D. Sanctions Are Not Warranted Since Cahill Has Acted in Good Faith and Cahill is Preducing A Deponent in Response to Plaintiffs’ Deposition Netice Sanctions are not awarded where the court makes a determination that "other circumstances make the imposition of the sanction unjust." C.C.P. §2025.450(c)(2). The other circumstances” that exist clearly make the imposition of any sanctions unjust. Cahill’s corporate PMQ/COR retired from Cahill on January 3, 2013, one day before Plaintiff served its Notice on January 4, 2013. This complicated matters for Cahill extremely. Cahill, who has always been forthright and who has produced its former PMQ for Brayton Purcell plaintiffs on many occasion, had to begin its search to identify and prepare a new corporate PMQ/COR. This is no small task as the matters at hand are serious, solemn and AEI471/15727 10-£ 4 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPELcomplex. Then amidst its meet and confer efforts with plaintiff on this matter, Archer Norris partner Cesar Alvarado, abruptly left the practice of law further compounding Cahill’s counsel’s ability to respond to plaintiff's request. Immediately upon Mr. Alvarado’s announcement that he was leaving, this counsel began working with Cahill to identify a new corporate PMQ/COR and began working with plaintiff to produce the new witness. Accordingly, the "other circumstances" presented here render any award of sanctions unjust. As indicated above, Cahill has met and conferred in good faith with Plaintiffs. Cahill has not refused to produce a corporate representative for deposition or produce responsive documents. Rather, Cahill has asserted appropriate objections to the grossly overbroad Notice and requested that Plaintiffs engage in a good faith meet and confer process. Most importantly here, a new PMQ/COR has been identified and readied and the deposition of Cahill’s COR/PMK, is confirmed and will take place sometime as soon as possible in April or May in July in San Francisco, California. Based upon the foregoing, sanctions are not warranted under Code of Civil Procedure Sections 2025.450 and 2023.010. Ii, CONCLUSION For the foregoing reasons, including the fact that Cahill Contractors, Inc. has offered a PMK/COR for deposition and will produce him on any mutually agreeable dates in April or May, Cahill respectively requests that the Court deny Plaintiffs’ motion to compel and request for imposition of sanctions. Dated: April 23, 2013 ARCHER’ NORRIS Eugene C, Blackard Jr. Jasun C. Molinelli Attomeys for Defendant CAHILL CONTRACTORS, INC. ABLATI“S727 101 3 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL