Party Discovery: CHARLES HUSBAND VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                Becherer
Kannett &
Schweitzer

1258
Powell St
Emeryville, CA
94608
510-658-3600

me

oon aur w nN

Mark S. Kannett (SBN.104572)

Emily D. Bergstrom (SBN 191395)
Bridget McKinstry (SBN 200219)
Stephanie L. Smith (SBN 169337)
BECHERER KANNETT & SCHWEITZER
1255 Powell Street

Emeryville, CA 94608

Telephone: (510) 658-3600

Facsimile: (510) 658-1151

Attorneys for Defendants
DILLINGHAM CONSTRUCTION N.A., INC. and
CSK AUTO, INC.

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

JUN 30 2011

Clerk of the Court
BY: VANESSA WU
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

CHARLES HUSBAND,
Plaintiff,
vs.
ASBESTOS DEFENDANTS,

Defendants.

CASE NO. CGC-09-275098

MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
DEFENDANTS DILLINGHAM
CONSTRUCTION N.A., INC. AND CSK
AUTO, INC’S EX PARTE
APPLICATION FOR ORDER
COMPELLING PRODUCTION OF
PLAINTIFF CHARLES HUSBAND FOR
FURTHER DEPOSITION OR IN THE
ALTERNATIVE, AN ORDER
SHORTENING TIME FOR HEARING
ON DILLINGHAM CONSTRUCTION
N.A., INC AND CSK AUTO, INC’S
MOTION TO COMPEL FURTHER
DEPOSITION OF PLAINTIFF CHARLES
HUSBAND

Date: July 5, 2011

Time: 11:00 a.m.

Dept: 220

Judge: Hon. Harold E. Kahn

Complaint Filed: March 2, 2009
Trial Date: November 14, 2011

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DILLINGHAM CONSTRUCTION N.A., INC. AND CSK
AUTO, INC’S EX PARTE APPLICATION FOR ORDER COMPELLING FURTHER DEPOSITION|. INTRODUCTION

B

Defendants Dillingham Construction N.A., Inc. (“Dillingham”) and CSK Auto, Inc.
(‘CSK”) apply ex parte for an order compelling production of Plaintiff Charles Husband
for further deposition or, in the alternative, an order shortening time for hearing on
Dillingham’s motion to compe! deposition of Plaintiff Charles Husband. Despite
numerous meet and confer efforts, Plaintiffs counsel refuses to allow Dillingham and
CSK to depose Plaintiff Charles Husband.

Good cause exists to grant this ex parte application. The trial in this case is set

pH On Dn oH FF BO WD

for November 14, 2011. Both Dillingham and CSK are newly-served defendants in this
10 | matter. Counsel for Dillingham and CSK failed to attend Plaintiff's deposition on behalf
11 | of newly-served defendants as a result of a computer calendaring error. Dillingham and
12 | CSK will be prejudiced if they are forced to prepare for trial without having an opportunity
13 | to exam Mr. Husband. Dillingham and CSK will also suffer irreparable harm because

14 | they will not have access to the discoverable information they are entitled to under the
15 | Discovery Act and upon which they intend to rely at trial. Further, Mr. Husband's

16 | deposition testimony may reveal that there is no evidence of liability as to Dillingham

17 || and/or CSK, in which case a motion for summary judgment would be appropriate.

1g | Dillingham and CSK will be forced to expend additional time and money preparing for

49 | trial, when they may be dismissed from the action at the time of their motion for summary
20 | judgment hearing. Meet and confer efforts have proven unsuccessful. Plaintiff's counsel
21 | fefuses to allow Dillingham and CSK to depose Mr. Husband for even an hour, despite
22 | knowledge of the computer calendaring error and the irreparable harm that will befall

23 | Dillingham and CSK if they are unable to depose Plaintiff. As such, Dillingham and CSK

Bechoror 24 | now seek ex parte relief from this Court and respectfully request that the Court issue an
nn

Schweitzer 25 || order compelling production of Plaintiff Charles Husband for one hour of further

Powell 26 deposition, either telephonically or in person, or, in the alternative, an order shortening
Sessa 7 | time for hearing on Dillingham and CSk’s motion to compel further deposition of Plaintiff

2g | Charles Husband.

2

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DILLINGHAM CONSTRUCTION N.A., INC. AND CSK
AUTO INC’S EX PARTE APPLICATION FOR ORDER COMPELLING DEPOSITIONll. STATEMENT OF FACTS

1

This asbestos personal injury case was filed on March 2, 2009. Neither
Dillingham nor CSK were named as defendants in Plaintiff's original complaint. On
September 22, 2010, Plaintiff amended his complaint and substituted Dillingham for
Does 3-13 and 1001-1007. Plaintiff again amended his complaint on October 21, 2010,
substituting CSK for Doe 14. The trial in this case is set for November 14, 2011.

The law firm of Becherer Kannett & Schweitzer, attorneys of record for Dillingham
and CSK received notice that Plaintiff's deposition on behalf of newly-served defendants

would go forward on April 18-20, 2011. {See 73 of the Declaration of Karim Toney

oD ON OM PB WwW ND

(‘Toney Decl.”)]. The dates of Plaintiff's deposition on behalf of newly-served

ee

11 | defendants were input into the firm's computerized calendaring system. (See [3 of the
1g | Toney Decl.). However, due to a computer error Plaintiffs deposition did not appear on
13 | the deposition calendar for the week of April 18-April 22, 2011 was produced. (See [4 of|
14 | the Toney Decl.). As a result, counsel for Dillingham and CSK failed to attend Plaintiff's
15 | deposition of April 18-20, 2011.
16 On May 2, 2011, counsel for Dillingham and CSK learned of the computer
17 | calendaring error. That day, counsel for Dillingham and CSK telephoned and emailed
1g | Plaintiff's counsel, Justin Fish, of the law firm of Brayton Purcell. [See Exhibit A to the
19 | Declaration of Stephanie L. Smith (“Smith Decl.”)]. Counsel for Dillingham and CSK

20 | advised Mr. Fish of the computer calendaring error and requested a stipulation to allow

g1 | Dillingham and CSK to depose Piaintiff for one hour, either in person or by telephone.

22 | Mr. Fish did not respond to counsel for Dillingham and CSK’s May 2, 2011 email. On

93 | May 16, 2011, counsel for Dillingham and CSK sent a second email to Mr. Fish the same

Becherer 94 || stipulation. (See Exhibit B to the Smith Decl.). The same day, Mr. Fish replied that he

Kannett &
Schweitzer. | would not agree to produce Plaintiff for any further depositions. (See Exhibit B to the
toms. 96 | Smith Decl.). Ina third attempt to meet and confer, counsel for Dillingham and CSK
Eonengville, CA

3
soassas 7 | sent Mr. Fish a letter on May 18, 2011 asking him to reconsider his previous decision

ag | given that the deposition would be limited to one hour and that both Dillingham and CSK
3

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DILLINGHAM CONSTRUCTION N.A., INC. AND CSK
AUTO INC'S EX PARTE APPLICATION FOR ORDER COMPELLING DEPOSITIONOo oN A oO fF WwW NH

10

would suffer irreparable harm without the opportunity to depose Plaintiff. (See Exhibit
C to the Smith Decl.). Counsel for Dillingham and CSK asked Mr. Fish to respond to
the May 18, 2011 letter by May 25, 2011. However, Mr. Fish failed to do so. Despite
numerous meet and confer efforts, counsel for Brayton Purcell refuses to allow
Dillingham and CSK to depose Mr. Husband.

On June 30, 2011, we notified all parties to this action via LexisNexis of our intent
to present this ex parte application to the court on Tuesday, July 5, 20114,.at 11:00 a.m.
in Department 220 of the San Francisco Superior Court. (See Exhibit D to Smith Decl.).

lil. LEGAL ARGUMENT

A. Good Cause Exists For Granting Dillingham and CSK’s Ex Parte
Application

In providing statutory foundation for ex parte applications and orders, subsection
(g) of Rule 379 of the California Rules of Court provides as follows:

An applicant must make an affirmative factual showing in a declaration
containing competent testimony based on personal knowledge of
irreparable harm, immediate danger, or any other statutory basis for
granting relief ex parte.

Good cause exists to grant this ex parte application. The trial in this case is set
for November 14, 2011. Both Dillingham and CSK are newly-served defendants in this
matter. Counsel for Dillingham and CSK failed to attend Plaintiff's deposition on behalf
of newly-served defendants as a result of a computer calendaring error. Dillingham and
CSK will be prejudiced if they are forced to prepare for trial without having an opportunity
to exam Mr. Husband. Dillingham-and CSK will also suffer irreparable harm because
they will not have access to the discoverable information they are entitled to under the
Discovery Act and upon which they intend to rely at trial. Further, Mr. Husband’s
deposition testimony may reveal that there is no evidence of liability as to Dillingham
and/or CSK, in which case a motion for summary judgment would be appropriate.

Dillingham and CSK will be forced to expend additional time and money preparing for
4

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DILLINGHAM CONSTRUCTION N.A., INC. AND CSK
AUTO INC’S EX PARTE APPLICATION FOR ORDER COMPELLING DEPOSITION1 | trial, when they may be dismissed from the action at the time of their motion for summary
2, | judgment hearing. Meet and confer efforts have proven unsuccessful. Plaintiff's counsel
3 | refuses to allow Dillingham and CSK to depose Mr. Husband for even an hour, despite
4 | knowledge of the computer calendaring error and the irreparable harm that will befall
5 | Dillingham and CSK if they are unable to depose Plaintiff. As such, Dillingham and CSK
6 | now seek ex parte relief from this Court and respectfully request that the Court issue an
7 | order compelling production of Plaintiff Charles Husband for one hour of deposition,
8 | either telephonically or in person, or, in the alternative, an order shortening time for
9 hearing on Dillingham and CSK’s motion to compel deposition of Plaintiff Charles
10 | Husband.
li
12 B. Good Cause Exists For The Court To Grant Leave To Allow Dillingham
and CSK To Further Depose Plaintiff Charles Husband
13
14 Code of Civil Procedure section 2025.610 (a) states:
15
Once a party has taken the deposition of any natural person, including that of a
16 party to the action, neither the party who gave, nor any other party who has been
served with a deposition notice pursuant to Section 2025.240 may take a
17 subsequent deposition of that deponent.
18 However, Code of Civil Procedure section 2025.610 (b) adds:
19
Notwithstanding subdivision (a), for good cause shown, the court may grant leave
20 to take a subsequent deposition, and the parties, with the consent of any

deponent who is not a party, may stipulate that a subsequent deposition be taken.
Counsel for Dillingham and CSK has tried unsuccessfully to meet and confer with
23 | Plaintiff's counsel regarding a stipulation allowing a subsequent deposition of Mr.

Bech th 16 ji i
Kennett 24 || Husband. As such, counsel for Dillingham and CSK requests the Court's intervention

Schweitzer
25 | given that good cause exists for the Court to grant leave to allow Diilingham and CSK to

34608 take a subsequent deposition of Plaintiff. As stated above, Dillingham and CSK will be
unable to determine the extent of their liability in this case, if any, without the opportunity
5

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DILLINGHAM CONSTRUCTION N.A., INC. AND CSK.
AUTO INC’S EX PARTE APPLICATION FOR ORDER COMPELLING DEPOSITION|
|
|
|

eo oN A OH FF WH YH eS

10

to depose Mr. Husband. Dillingham and CSK will also be foreclosed from filing a-motion
for summary judgment in this matter, Such an outcome is wholly inconsistent with the
Court's goals of efficiency and expediency. Moreover, Dillingham and CSK will be

unable to properly prepare for trial, which is set for November 14, 2011.

IV. CONCLUSION
Based on the foregoing, Dillingham and CSK respectfully request that the Court
issue an order compelling production of Plaintiff Charles Husband for deposition or in the
alternative an order shortening time for hearing on Dillingham and CSk’s motion to

compel deposition of Plaintiff Charles Husband.

Dated: June 30, 2014 BECHERER, KANNETT & SCHWEITZER

Zp

By: 2%

"Stephanie L. Smith
Attorneys for Defendant
DILLINGHAM CONSTRUCTION, N.A., INC.
CSK AUTO, INC.

6

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DILLINGHAM CONSTRUCTION N.A., INC. AND CSK
AUTO INC’S EX PARTE APPLICATION FOR ORDER COMPELLING DEPOSITIONBecherer
Kannett &
Schweitzer

1255
Powell St.
Emeryilie, CA
94608

510-658-3600

oOo ON Do FF WN

DN NN Bee Be Be eee ee
ane 6 0 BANA HM FB HN HF OC

24
25
26
27
28

PROOF OF SERVICE BY ELECTRONIC TRANSMISSION

|, Barbara Golstein, declare that | 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 June 30, 2011, | electronically served the document(s) via LexisNexis File &
Serve described as:

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS DILLINGHAM CONSTRUCTION N.A., INC. AND CSK AUTO,
INC’S EX PARTE APPLICATION FOR ORDER COMPELLING PRODUCTION
OF PLAINTIFF CHARLES HUSBAND FOR DEPOSITION OR IN THE
ALTERNATIVE, AN ORDER SHORTENING TIME FOR HEARING ON
DILLINGHAM CONSTRUCTION N.A., INC AND CSK AUTO, INC’S MOTION TO
COMPEL DEPOSITION OF PLAINTIFF CHARLES HUSBAND

on the recipients designated on the Transmission Receipt located on the LexisNexis File
& Serve website.

| 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 exeguted on June 30,
2011, at Emeryville, California. 4 ) ) 2 /

arbara Golstein

7

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DILLINGHAM CONSTRUCTION N.A., INC. AND CSK
AUTO INC'S EX PARTE APPLICATION FOR ORDER COMPELLING DEPOSITION