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

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J. Scott Wood, Esq. SBN 136306
Elizabeth R. Bain, Esq. SBN 255265
Foley & Mansfield P.L.L.P.

300 Lakeside Drive, Suite 1900

Oakland, CA. 94612

Telephone: (510) 590-9500

Facsimile: (510) 590-9595

Attorneys for Defendant

NACCO MATERIALS HANDLING GROUP, INC.

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

OCT 26 2010

Clerk of the Court
BY: EDNALEEN JAVIER
Deputy Clerk

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SAN FRANCISCO

RUFUS ALEXANDER,
Plaintiffs,
vs.
ASBESTOS DEFENDANTS (BP),

Defendants.

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Case No. CGC-08-274719

MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF NACCO
MATERIALS HANDLING GROUP, INC.’S
MOTION TO COMPEL AND FOR

TERMINATING SANCTIONS

Date: Nov. 18, 2010

Time: 1:30 p.m.

Dept: 220

Judge: Hon. Harold E. Kahn

Complaint Filed:
Trial Date:

I. INTRODUCTION

July 1, 2008
Not Assigned

Defendant NACCO MATERIALS HANDLING GROUP, INC. (“NACCO”) moves to compel

discovery responses. Plaintiff Rufus Alexander (“Plaintiff”) failed to respond to NACCO’s written

discovery, served twice, even after the Court ordered Plaintiff to respond, NACCO requests the Court

issue an order requiring Plaintiff to respond by a date certain or, by his failure to respond, consent to the

dismissal with prejudice of all claims against NACCO; deeming all requests for admission granted; and

waiving all objections.

Further, Plaintiff has refused to participate in the discovery process or otherwise apprise NACCO

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF NACCO MATERIALS HANDLING GROUP, INC.S
MOTION TO COMPEL AND FOR TERMINATING SANCTIONScee DOD A ee BH

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of the grounds for his claim against it, and has taken no affirmative steps to comply with Court orders

regarding conduct of the discovery process. As such, NACCO moves the Court for an order terminating

Plaintiffs case against NACCO and dismissing NACCO, with prejudice, each side to bear its own costs.
IL. FACTUAL BACKGROUND

Plaintiff filed the instant case with the assistance of Brayton Purcell (“Brayton”) on July 1, 2008.
At Plaintiff's deposition in June 2009, Plaintiff failed to identify any grounds on which to base liability
for NACCO. Brayton was relieved as counsel for Plaintiff on October 30, 2009, after notifying Plaintiff
that “we are no longer able to represent you in this action due to our finding no evidence that you suffer
from an asbestos-related disease at this time.” See Order Granting Attorney’s Motion To Be Relieved
As Cousel—Civil and Declaration in Support of Attorney’s Motion To Be Relieved As Counsel—Civil,
attached to the Declaration of Elizabeth R. Bain (“Bain Dec.”) as Exhibits A and B, respectively.

On November 20, 2009, NACCO propounded Special Interrogatories, Requests for Production
of Documents, and Requests for Admissions (collectively, “written discovery”) to Plaintiff. NACCO’s
written discovery was served directly on Plaintiff via Federal Express. See written discovery and
corresponding proofs of service by Federal Express, attached to the Bain Dec. as Exhibits C, D, and E,
respectively.

On April 29, 2010, the Court held a case management conference. The Court ordered all
discovery stayed, prohibited motions to compel until the next case management conference on August 4,
2010, and ordered defendants with outstanding discovery requests to re-serve them. The Court ordered
Plaintiff to respond by June 30, 2010. See Case Management Conference Order, attached to the Bain
Dec. as Exhibit F.

On May 12, NACCO re-served its discovery. NACCO served Plaintiff via U.S. Mail, certified
mail with return receipt requested. See Correspondence and Proof of Service, attached to the Bain Dec.
as Exhibit G. Plaintiff failed to respond.

On August 6, 2010, NACCO sent a letter to Plaintiff requesting that Plaintiff provide responses
by August 23, 2010. Plaintiff did not respond to this letter. See Correspondence to Plaintiff, attached to

the Bain Dec. as Exhibit H.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF NACCO MATERIALS HANDLING GROUP, INC.S
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As of the date of filing this motion, NACCO has not received any response from Plaintiff;
neither responses to written discovery, nor a response to the August 6, 2010 letter, nor any
communication in any form. See Bain Dec. at ¥ 15.

On June 16, 2010, Plaintiff refused to participate in the Court-ordered continuation of his
deposition, on the grounds that he was not represented by counsel. See Excerpts from the Deposition
Testimony of Rufus Alexander, attached to the Bain Dec. as Exhibit L. At the August 4, 2010 case
management conference, the Court ordered Plaintiff’s deposition to continue on October 18, 2010.
Plaintiff failed to appear. During the time scheduled for the deposition, defense counsel attempted to
contact Plaintiff by telephone but received no response. See Case Management Conference Order,
attached to the Bain Dec. as Exhibit J, and Bain Dec. at 4 13.

Coordinating defense counsel, Berry & Berry, scheduled an independent medical exam (“IME”)
for Plaintiffon June 19, 2009. Counsel for NACCO first learned that Plaintiff failed to appear for a
scheduled IME on October 4, 2010. See Correspondence from Berry & Berry dated October 4, 2010,
attached to the Bain Dec. as Exhibit K.

After these twice serving discovery, appearing at deposition, and making efforts to meet and
confer, counsel for NACCO has no choice but to file a motion to compel. This motion is noticed for the
Court-mandated date and time. See Exhibit J.

IL. DISCUSSION
A. THE COURT SHOULD COMPEL PLAINTIFF TO RESPOND TO WRITTEN

DISCOVERY, OR DISMISS HIS CASE AGAINST NACCO.

The remedy for failure to respond to written discovery is a motion to compel. C.C.P. §
2030.290(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) 111 Cal.App.3d 902, 905-906.

NACCO propounded written discovery twice, Plaintiff failed to respond. Plaintiff has waived
his objections by failing to respond. As NACCO has yet to receive any responses to its special

interrogatories, NACCO’s motion to compel Plaintiff's responses to special interrogatories should be

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF NACCO MATERIALS HANDLING GROUP, INC.S
MOTION TO COMPEL AND FOR TERMINATING SANCTIONScee DOD A ee BH

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granted.

Plaintiff has waived his objections, including claims of privilege and work product, and his right
to exercise the option to produce writings. C.C.P. § 2030.290(a); C.C.P. § 2031.300(a); Leach v.
Superior Court (1980) 111 Cal. App.3d 902, 905-906,

NACCO has yet to receive Plaintiff's responses to NACCO’s written discovery. As a result,
NACCO is forced to file this motion to compel. Since NACCO has not received Plaintiff's responses,
which are grossly overdue, the Court should order Plaintiff to provide verified response to NACCO’s
request for admissions by a date certain or, by his inaction, consent to dismissal with prejudice of this
action against NACCO.

B. THE COURT SHOULD GRANT TERMINATING SANCTIONS.

As Plaintiff has failed to make any response to NACCO’s written discovery-~and has also failed
to respond to written discovery served by numerous other defendants, as evidenced by the other motions
filed with the Court, did not attend his scheduled IME, and failed to appear for deposition—-NACCO
requests the Court order terminating sanctions. Plaintiff has clearly chosen not to participate in any
aspect of the discovery process, which is a misuse of the discovery process per California Code of Civil
Procedure Section 2023.010.

When a party engages in such behavior, the Court may order monetary sanctions. Monetary
sanctions seem inappropriate and ineffective in the present case for two reasons. First, monetary
sanctions are typically imposed against attorneys or law firms in order to punish past discovery abuses
and deter future discovery abuses. Attorneys and law firms participate continuously in the litigation
process, making deterrence effective. Further, attorneys and law firms are typically ordered to pay the
costs incurred by opposing counsel due to their discovery abuses. In the instant case, Plaintiff has failed
to comply with the Court’s orders; monetary sanctions are unlikely to deter him from future discovery
abuses in the present case, and defense counsel are unlikely to suffer the effects of any future discovery
abuses, particularly if the Court terminates this case and dismisses NACCO with prejudice. Second,
monetary sanctions are effective, in part, because attorneys and law firms are typically solvent and either

forced to pay them, or opposing counsel use them as a bargaining chip in the settlement of the matter at

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF NACCO MATERIALS HANDLING GROUP, INC.S
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hand. Plaintiff appears to be a man of modest means and has, for example, testified that he has not seen
a doctor because of his inability to pay. It is highly unlikely that Plaintiff would actually pay any
monetary sanctions ordered by the Court, given his disregard for prior Court orders and his financial
status.

The Court has authority to dismiss this action against NACCO. California Code of Civil
Procedure section 2023.030(d)(3) permits the Court to issue an order for terminating sanctions,
dismissing the action. Terminating sanctions are appropriate where lesser sanctions would not produce
compliance with discovery requirements. Mileikowsky v. Tenet Healthsystem (2005) 128 Cal. App. 4e
262, 279-80. Given Plaintiff's propensity to ignore the Court’s orders to participate in discovery, it is
dubious that a lesser sanction would encourage Plaintiff to comply with discovery requirements. A
party’s past history as a repeat offender is relevant—and significant—factor in the Court’s decision to
impose terminating sanctions. Liberty Mut. Fire Ins. Co. v. Lel. Administrators, Inc. (2008) 163 Cal
App. 4" 1093, 1106.

Plaintiff's total disregard for the judicial process is grounds for terminating sanctions. Plaintiff
has not given any indication that he is going to meaningfully participate in this litigation or the
discovery process. Therefore, Plaintiff's case should be dismissed with prejudice.

TV. CONCLUSION

For the reasons state above, NACCO respectfully requests the Court issue an order that:

1. Plaintiff produce verified responses to NACCO’s written discovery, without objection, all
requests for admission deemed admitted, and without the option to produce documents, within ten days
by U.S. Mail or hand delivery to the offices of Foley & Mansfield P.L.L.P., AND automatically
dismissing the case against NACCO, with prejudice, if Plaintiff fails to comply; OR.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF NACCO MATERIALS HANDLING GROUP, INC.S
MOTION TO COMPEL AND FOR TERMINATING SANCTIONS1 2. Awarding terminating sanctions for P.
2 || dismissing the case against NACCO, with prejudice.
3 || Further, NACCO respectfully requests the Court ord
4 || deems just and proper.

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Dated: October 26, 2010

ce BD

BY
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laintiff’s failure to participate in discovery, AND

er any other or additional relief to which the Court

FOLEY & MANSFIELD, P.L.L.P.

Effzabeth R. Bain

Attorneys for Defendant

NACCO MATERIALS HANDLING GROUP,
INC,

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF NACCO MATERIALS HANDLING GROUP, INC.S

MOTION TO COMPEL AND FGI

R FERMINATING SANCTIONS