Preview
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CLANCY & Diaz, LLP
2855 Mitchell Drive, Suite 106, Walnut Creek, CA 94598
File (804) 402-3406
St Martinez CA 94553
Bay Area
817 Main
Tel. No. (925) 835-7500 Facsimile (510) 768-7203
By Fax
27
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PETE CLANCY, SBN 230160
CLANCY & DIAZ, LLP
2855 MITCHELL DRIVE, SUITE 106
WALNUT CREEK, CA 94598
PHONE: (925) 835-7500
Fax: (510) 768-7203
pete@clancylawgroup.com
ATTORNEY FOR PLAINTIFF
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF CONTRA COSTA
DANA KUEHR, CASE NO.: C18-025462
PLAINTIFF, MOTION AND NOTICE OF MOTION TO
TAKE DEPOSITION PURSUANT TO CCP
v. §2026.010, MEMORANDUM OF POINTS &
AUTHORITIES; DECLARATION OF PETE
ROBERT JOHNSTON, ROBERT JOHNSTON, JR., CLANCY
ROBERT HERNANDEZ, DOES 1 To 100, \0-2 S-\4
Date:
DEFENDANTS. Time: Qu
Dept.: 12
MOTION AND NOTICE OF MOTION
TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE
that at the time and date set forth above, Plaintiff will move, and hereby does move, the Court for
the issuance of a commission or order allowing her to take an out-of-state deposition, at such other
time and place as may be mutually convenient for the witness, the parties to this action and others.
Alternatively, and at the Court’s discretion, Plaintiff requests that the Court issue letters
rogatory, and/or a commission authorizing the deposition of Laurie Woytus at Chubb Insurance
Company. This motion will be based upon this Motion and Notice of Motion, the papers filed in
support thereof, the Declaration of Pete Clancy, the Court’s files in this matter, the argument of
counsel and such other atgument or evidence as may be presented or considered by the Court.
This motion is made upon the grounds that the witness who is to be deposed is currently
1
MOTION AND NOTICE OF MOTION TO TAKE DEPOSITIO PURSUANT TO CCP§2026.010;
SUPPORTING DECLARATIONS; POINTS & AUTHORITIESCLANCY & Diaz, LLP
2855 Mitchell Drive, Suite 106, Walnut Creek, CA 94598
‘Tel. No. (925) 835-7500 Facsimile (510) 768-7203
outside of the State of California and is in possession of information necessary to locate and serve
defendants.
Cuancy & Diaz, LLP
DaTED: SEPT. 2019 By:
PETE CLANCY
ATTORNEY FOR PLAINTIFF
MEMORANDUM OF POINTS & AUTHORITIES
Az Background
This is a personal injury action arising out a single car accident. (Clancy Dec., 2). Plaintiff
Dana Kuehr claims personal injury as a result of this accident. (Clancy Dec., J 2). Plaintiff filed suit
against Robert Johnston, Robert Johnston, Jr. and Robert Hernandez. (Clancy Dec., {| 2). Plaintiff
does not have contact information for any of the defendants in order to serve them. (Clancy Dec., J]
3). Plaintiff is informed and believes that the defendants were insured by Chubb Insurance and that
Chubb Insurance has contact information for the defendants, Chubb has engaged in settlement
discussions with Plaintiff's counsel. (Clancy Dec., J] 2).
B. The Court Is Authorized to Coordinate the Deposition of Mr. Targa Pursuant to CCP 2026.010
California Code of Civil Procedure §2026.010 provides, in part:
(a) Any party may obtain discovery by taking an oral deposition, as
described in Section 2025.010, in another state of the United States, or
in a territory or an insular possession subject to its jurisdiction . . .
(©) If the deponent is not a party to the action or an officer, director,
managing agent, or employee of a patty, a patty serving a deposition
notice under this section shall use any process and procedures
required and available under the laws of the state, territory, or insular
possession where the deposition is to be taken to compel the
deponent to attend and to testify, as well as to produce any document,
electronically stored information, or tangible thing for inspection,
copying, testing, sampling, and any related activity.
(@) A deposition taken under this section shall be conducted in either
of the following ways:
(1) Under the supervision of a person who is authorized to administer
oaths by the laws of the United States or those of the place where the
examination is to be held, and who is not otherwise disqualified under
2
MOTION AND NOTICE OF MOTION TO TAKE DEPOSITIO PURSUANT TO CCP§2C26.010;
SUPPORTING DECLARATIONS; POINTS & AUTHORITIES1
2
3
4
5
6
7
8
9
g
sg
88 on
AOR 42
43s
NSE
SEG 13
Agé
tug 14
228
2g8 15
se 16
Es
ge
ge (17
a
18
19
;
| 20
| 21
| 22
23
24
25
26
21
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Section 2025.320 and subdivisions (b) to (f), inclusive, of Section
2025.340.
(2) Before a person appointed by the court.
(©) An appointment under subdivision (d) is effective to authorize that
person to administer oaths and to take testimony.
(f) On request, the. clerk of the court shall issue a commission
authorizing the deposition in another state or place. The commission
shall request that process issue in the place where the examination is
to be held, requiring attendance and enforcing the obligations of the
deponents to produce documents and electronically stored
information and answer questions. The commission shall be issued by
the cletk to any patty in any action pending in its venue without a
noticed motion or court order. The commission may contain terms
that are required by the foreign jurisdiction to initiate the process. If a
court otder is required by the foreign jurisdiction, an order for a
commission may be obtained by ex parte application.
Thus, where a witness is in a foreign state, the Court in California has the authority to issue a
commission, letters rogatory or a letter of request to enable the taking of depositions ir. a such a
state.
6 Locating the Defendants is Extremely Important
Plaintiff has not yet been able to locate the defendants and therefore must go to the
extraordinary step of issuing a deposition subpoena directed to the 3" party carrier.
da. Proposed Deposition Structure
Plaintiff proposes to take the deposition of Mrs. Woytus via a local attorney and via video. If
it is possible, Plaintiff will arrange for the parties (and witness) to appear by video.
@ Plaintiff's Request of the Court
Locating the defendants is clearly relevant, appropriate and necessary to a fair trial on the
merits. Plaintiff respectfully requests that the Court issue an order or commission authorizing an
out-of-state deposition in accordance with the proposed order.
Darep: Sept. 12,2019
ATTORNEY FOr PLAINTIFF
3
MOTION AND NOTICE OF MOTION TO TAKE DEPOSITIO PURSUANT TO CCP§2C26.010;
SUPPORTING DECLARATIONS; POINTS & AUTHORITIESTel. No. (925) 835-7500 Facsimile (510) 768-7203
CLANCY & D1Az, LLP
2855 Mitchell Drive, Suite 106, Walnut Creek, CA 94598
27
28
DECLARATION OF PETE CLANCY
1. I am attorney of record for the Plaintiff, a member in good standing of the State Bar
of California and State Bar of Nevada and a partner at the law firm of Clancy & Diaz, LLP. If called
as witness I could and would testify as set out below.
2. This is a personal injury action. Plaintiff Dana Kuehr alleges that she was injured in a
single-vehicle collision and has filed suit against Robert Johnston, Robert Johnston, Jr. and Robert
Hernandez. I have been communicating directly with Laurie Woytus of Chubb Insurance (with an
address of 1 Progress Point Parkway, O' Fallon, MO 63366).
35 T have tried to locate the defendants but have not been able to do so due to fact that
they all have very common names and I have [ttle information about them. Plaintiff does not have
contact information for any of the defendants.
4. Attached hereto as Exhibit A is a proposed order allowing me to take the deposition
of Laurie Woytus.
Executed under penalty of perjury of the laws of, te of California.
Dated: _7-/2-2. 7
4
MOTION AND NOTICE OF MOTION TO TAKE DEPOSITIO PURSUANT TO CCP§2C26.010;
SUPPORTING DECLARATIONS; POINTS & AUTHORITIESEXHIBIT ACLANCY & Diaz, LLP
2855 Mitchell Drive, Suite 106, Walnut Creek, CA 94598
Tel. No. (925) 835-7500 Facsimile (510) 768-7203
27
28
PETE CLANCY, SBN 230160
CLANCY & DIAZ, LLP
2855 MITCHELL DRIVE, SUITE 106
WALNUT CREEK, CA 94598
PHONE: (925) 835-7500
Fax: (510) 768-7203
pete@clancylawgroup.com
ATTORNEY For PLAINTIFF
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF CONTRA COSTA
DANA KUEHR, CASE NO.: C18-025462
PLAINTIFF, [PROPOSED] ORDER GRANTING
PLAINTIFF’S MOTION FOR FOREIGN
v. DEPOSITION [CCP § 2026.010]
ROBERT JOHNSTON, ROBERT JOHNSTON, JR.,
ROBERT HERNANDEZ, DOES 1 To 100,
DEFENDANTS.
Plaintiff, by and through Plaintiff's counsel, filed motion to take an out-of-state deposition
(of Laurie Woytus, Chubb Insurance) pursuant to C.C.P. §2026.010. Having considered the papers,
the evidence and the argument of counsel, and good cause appearing, Plaintiffs motion is
GRANTED.
By this Order, Plaintiff is authorized to take the deposition of Laurie Woytus in or around
O Fallon, MO, or at any other place mutually agreed by the witness, Plaintiff's counsel and any other
interested party.
Further, the clerk of the Court is directed to issue a commission authorizing the deposition of
Laurie Woytus in or around O'Fallon, MO, requesting that process issue in or around O’Fallon, MO
where the examination is to be held, requiring attendance and enforcing the obligations of the
1
[PROPOSED] ORDER GRANTING MOTION FOR FOREIGN DEPOSITIONCLANCY & Diaz, LLP
2855 Mitchell Drive, Suite 106, Walnut Creek, CA 94598
Tel. No. (925) 835-7500 Facsimile (510) 768-7203
deponents to produce documents and electronically stored information and answer questions.
Plaintiff's counsel may coordinate the issuance cf a commission with the Clerk of the Court without
further leave of this Court.
IT IS SO ORDERED.
Dated:
Presiding Judge
2
[PROPOSED] ORDER GRANTING MOTION FOR FOREIGN DEPOSITION
Preview
Zee CLANCY & Diaz, LLP 2855 Mitchell Drive, Suite 106, Walnut Creek, CA 94598 File (804) 402-3406 St Martinez CA 94553 Bay Area 817 Main Tel. No. (925) 835-7500 Facsimile (510) 768-7203 By Fax 27 28 PETE CLANCY, SBN 230160 CLANCY & DIAZ, LLP 2855 MITCHELL DRIVE, SUITE 106 WALNUT CREEK, CA 94598 PHONE: (925) 835-7500 Fax: (510) 768-7203 pete@clancylawgroup.com ATTORNEY FOR PLAINTIFF SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF CONTRA COSTA DANA KUEHR, CASE NO.: C18-025462 PLAINTIFF, MOTION AND NOTICE OF MOTION TO TAKE DEPOSITION PURSUANT TO CCP v. §2026.010, MEMORANDUM OF POINTS & AUTHORITIES; DECLARATION OF PETE ROBERT JOHNSTON, ROBERT JOHNSTON, JR., CLANCY ROBERT HERNANDEZ, DOES 1 To 100, \0-2 S-\4 Date: DEFENDANTS. Time: Qu Dept.: 12 MOTION AND NOTICE OF MOTION TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that at the time and date set forth above, Plaintiff will move, and hereby does move, the Court for the issuance of a commission or order allowing her to take an out-of-state deposition, at such other time and place as may be mutually convenient for the witness, the parties to this action and others. Alternatively, and at the Court’s discretion, Plaintiff requests that the Court issue letters rogatory, and/or a commission authorizing the deposition of Laurie Woytus at Chubb Insurance Company. This motion will be based upon this Motion and Notice of Motion, the papers filed in support thereof, the Declaration of Pete Clancy, the Court’s files in this matter, the argument of counsel and such other atgument or evidence as may be presented or considered by the Court. This motion is made upon the grounds that the witness who is to be deposed is currently 1 MOTION AND NOTICE OF MOTION TO TAKE DEPOSITIO PURSUANT TO CCP§2026.010; SUPPORTING DECLARATIONS; POINTS & AUTHORITIESCLANCY & Diaz, LLP 2855 Mitchell Drive, Suite 106, Walnut Creek, CA 94598 ‘Tel. No. (925) 835-7500 Facsimile (510) 768-7203 outside of the State of California and is in possession of information necessary to locate and serve defendants. Cuancy & Diaz, LLP DaTED: SEPT. 2019 By: PETE CLANCY ATTORNEY FOR PLAINTIFF MEMORANDUM OF POINTS & AUTHORITIES Az Background This is a personal injury action arising out a single car accident. (Clancy Dec., 2). Plaintiff Dana Kuehr claims personal injury as a result of this accident. (Clancy Dec., J 2). Plaintiff filed suit against Robert Johnston, Robert Johnston, Jr. and Robert Hernandez. (Clancy Dec., {| 2). Plaintiff does not have contact information for any of the defendants in order to serve them. (Clancy Dec., J] 3). Plaintiff is informed and believes that the defendants were insured by Chubb Insurance and that Chubb Insurance has contact information for the defendants, Chubb has engaged in settlement discussions with Plaintiff's counsel. (Clancy Dec., J] 2). B. The Court Is Authorized to Coordinate the Deposition of Mr. Targa Pursuant to CCP 2026.010 California Code of Civil Procedure §2026.010 provides, in part: (a) Any party may obtain discovery by taking an oral deposition, as described in Section 2025.010, in another state of the United States, or in a territory or an insular possession subject to its jurisdiction . . . (©) If the deponent is not a party to the action or an officer, director, managing agent, or employee of a patty, a patty serving a deposition notice under this section shall use any process and procedures required and available under the laws of the state, territory, or insular possession where the deposition is to be taken to compel the deponent to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection, copying, testing, sampling, and any related activity. (@) A deposition taken under this section shall be conducted in either of the following ways: (1) Under the supervision of a person who is authorized to administer oaths by the laws of the United States or those of the place where the examination is to be held, and who is not otherwise disqualified under 2 MOTION AND NOTICE OF MOTION TO TAKE DEPOSITIO PURSUANT TO CCP§2C26.010; SUPPORTING DECLARATIONS; POINTS & AUTHORITIES1 2 3 4 5 6 7 8 9 g sg 88 on AOR 42 43s NSE SEG 13 Agé tug 14 228 2g8 15 se 16 Es ge ge (17 a 18 19 ; | 20 | 21 | 22 23 24 25 26 21 28 Section 2025.320 and subdivisions (b) to (f), inclusive, of Section 2025.340. (2) Before a person appointed by the court. (©) An appointment under subdivision (d) is effective to authorize that person to administer oaths and to take testimony. (f) On request, the. clerk of the court shall issue a commission authorizing the deposition in another state or place. The commission shall request that process issue in the place where the examination is to be held, requiring attendance and enforcing the obligations of the deponents to produce documents and electronically stored information and answer questions. The commission shall be issued by the cletk to any patty in any action pending in its venue without a noticed motion or court order. The commission may contain terms that are required by the foreign jurisdiction to initiate the process. If a court otder is required by the foreign jurisdiction, an order for a commission may be obtained by ex parte application. Thus, where a witness is in a foreign state, the Court in California has the authority to issue a commission, letters rogatory or a letter of request to enable the taking of depositions ir. a such a state. 6 Locating the Defendants is Extremely Important Plaintiff has not yet been able to locate the defendants and therefore must go to the extraordinary step of issuing a deposition subpoena directed to the 3" party carrier. da. Proposed Deposition Structure Plaintiff proposes to take the deposition of Mrs. Woytus via a local attorney and via video. If it is possible, Plaintiff will arrange for the parties (and witness) to appear by video. @ Plaintiff's Request of the Court Locating the defendants is clearly relevant, appropriate and necessary to a fair trial on the merits. Plaintiff respectfully requests that the Court issue an order or commission authorizing an out-of-state deposition in accordance with the proposed order. Darep: Sept. 12,2019 ATTORNEY FOr PLAINTIFF 3 MOTION AND NOTICE OF MOTION TO TAKE DEPOSITIO PURSUANT TO CCP§2C26.010; SUPPORTING DECLARATIONS; POINTS & AUTHORITIESTel. No. (925) 835-7500 Facsimile (510) 768-7203 CLANCY & D1Az, LLP 2855 Mitchell Drive, Suite 106, Walnut Creek, CA 94598 27 28 DECLARATION OF PETE CLANCY 1. I am attorney of record for the Plaintiff, a member in good standing of the State Bar of California and State Bar of Nevada and a partner at the law firm of Clancy & Diaz, LLP. If called as witness I could and would testify as set out below. 2. This is a personal injury action. Plaintiff Dana Kuehr alleges that she was injured in a single-vehicle collision and has filed suit against Robert Johnston, Robert Johnston, Jr. and Robert Hernandez. I have been communicating directly with Laurie Woytus of Chubb Insurance (with an address of 1 Progress Point Parkway, O' Fallon, MO 63366). 35 T have tried to locate the defendants but have not been able to do so due to fact that they all have very common names and I have [ttle information about them. Plaintiff does not have contact information for any of the defendants. 4. Attached hereto as Exhibit A is a proposed order allowing me to take the deposition of Laurie Woytus. Executed under penalty of perjury of the laws of, te of California. Dated: _7-/2-2. 7 4 MOTION AND NOTICE OF MOTION TO TAKE DEPOSITIO PURSUANT TO CCP§2C26.010; SUPPORTING DECLARATIONS; POINTS & AUTHORITIESEXHIBIT ACLANCY & Diaz, LLP 2855 Mitchell Drive, Suite 106, Walnut Creek, CA 94598 Tel. No. (925) 835-7500 Facsimile (510) 768-7203 27 28 PETE CLANCY, SBN 230160 CLANCY & DIAZ, LLP 2855 MITCHELL DRIVE, SUITE 106 WALNUT CREEK, CA 94598 PHONE: (925) 835-7500 Fax: (510) 768-7203 pete@clancylawgroup.com ATTORNEY For PLAINTIFF SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF CONTRA COSTA DANA KUEHR, CASE NO.: C18-025462 PLAINTIFF, [PROPOSED] ORDER GRANTING PLAINTIFF’S MOTION FOR FOREIGN v. DEPOSITION [CCP § 2026.010] ROBERT JOHNSTON, ROBERT JOHNSTON, JR., ROBERT HERNANDEZ, DOES 1 To 100, DEFENDANTS. Plaintiff, by and through Plaintiff's counsel, filed motion to take an out-of-state deposition (of Laurie Woytus, Chubb Insurance) pursuant to C.C.P. §2026.010. Having considered the papers, the evidence and the argument of counsel, and good cause appearing, Plaintiffs motion is GRANTED. By this Order, Plaintiff is authorized to take the deposition of Laurie Woytus in or around O Fallon, MO, or at any other place mutually agreed by the witness, Plaintiff's counsel and any other interested party. Further, the clerk of the Court is directed to issue a commission authorizing the deposition of Laurie Woytus in or around O'Fallon, MO, requesting that process issue in or around O’Fallon, MO where the examination is to be held, requiring attendance and enforcing the obligations of the 1 [PROPOSED] ORDER GRANTING MOTION FOR FOREIGN DEPOSITIONCLANCY & Diaz, LLP 2855 Mitchell Drive, Suite 106, Walnut Creek, CA 94598 Tel. No. (925) 835-7500 Facsimile (510) 768-7203 deponents to produce documents and electronically stored information and answer questions. Plaintiff's counsel may coordinate the issuance cf a commission with the Clerk of the Court without further leave of this Court. IT IS SO ORDERED. Dated: Presiding Judge 2 [PROPOSED] ORDER GRANTING MOTION FOR FOREIGN DEPOSITION