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

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                                Suite 1600

LOT West Broadway
San Diego, CA 92101

Gordon & Rees LLP

S. MITCHELL KAPLAN (SBN: 95065)

CHRISTOPHER D. STRUNK (SBN 214110)
BETHANY A. STAHLEY (SBN: 209421) ELECTRONICALLY
GORDON & REES LLP FILED
Embarcadero Center West Superior Court of California,
275 Battery Street, Suite 2000 County of San Francisco
San Francisco, CA 94111 OCT
Telephone: (415) 986-5900 Clerk 22 2010
Facsimile: (415) 986-8054 BY: JUDITH NUNEZ

Deputy Clerk

Attorneys for Defendant
THE BUDD COMPANY

SUPERIOR COURT ~ STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO

RUFUS ALEXANDER, CASE NO. CGC-08-274719

DEFENDANT THE BUDD
COMPANY’S MEMORANDUM OF
POINTS AND AUTHORITIES IN
SUPPORT OF ITS MOTION TO
EXCLUDE TESTIMONY,
DECLARATION, OR PARTICIPATION
OF PLAINTIFF RUFUS ALEXANDER
AT TRIAL AND REQUEST FOR
TERMINATING SANCTIONS IN

Plaintiff,

ASBESTOS DEFENDANTS (BP)

Defendants. CONTEMPT
Date: November 18, 2010
Time: 9:30 am.
Dept.: 220
Judge: Hon. Hon. Harold E. Kahn
Trial Date: None set

Ne Ne et Ne Sie Se Sl tt Se Se Sa SS! Se et

I, INTRODUCTION

Plaintiff RUFUS ALEXANDER filed this action claiming that THE BUDD COMPANY
(“BUDD”) is responsible for plaintiff's alloged exposure to asbestos during the course of his
career as a pneumatic tool operator and metals inspector at various shipyards over his career,
from which plaintiff alleges to have contracted asbestosis.

Plaintiff, however, has willfully refused to participate in discovery, culminating in his

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MEM. GF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO EXCLUDEGordon & Rees LLP
TOL West Broadway

Suite 1600
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refusal to attend his deposition on October 18, 2010, a date at which he was compelled by the
court (9 attend but did not, thereby violating the Court order.

As the Court Order of August 4, 2010 expressly cmpowered defendants to bring a motion
to exclude or limit the testimony of plaintiff, defendant THE BUDD COMPANY does so here.
Further, BUDD sceks terminating sanctions for plaintiffs’ willful failure to attend the deposition.

Il. STATEMENT OF FACTS

Plaintiff tiled his Complaint against The Budd Company on July 1, 2008. In his
Complaint, plaintiff claims to have been expased to asbestos for which BUDD is responsible. (
See Request for Judicial Notice (“REIN”), Exhibit 1.) On October 30, 2009, the
Brayton Purcell firm’s motion to be relieved as counsel for plaintiffs was granted. (See Order
granting motion to be relieved as counsel, RFJN, Exhibit 2.)

At the case management conference on August 4, 2010, plaintiff was ordered to attend
his deposition at Aiken & Welch at 180 Montgomery St. in San Francisco. (RFIN, Exhibit 3.)
Plaintiff, however, did not attend his Court-mandated deposition, and efforts to contact him
around 10:00 am on the date of his deposition via two telephone numbers revealed that those
numbers were no longer in service, Defendants also telephoned Berry & Berry, and in a
discussion with Evanthia Spanos, it was communicated that Berry & Berry received no
communications from plaintiff indicating he was unable to attend the deposition. A statement on
the record was made at approximately 10:35 am. (Strunk Decl., § 2.)

The instant motion follows.

IL. ARGUMENT

A. Exclusion of the Witness’ Testimony Is The Appropriate Remedy

Once a deponent has been ordered to attend a deposition, more severe sanctions are
available for continued refusal! to make discovery. (Weil & Brown, Civil Procedure Before Trial
at 8: 852, citing Cal. Code Civ. Proc. sec, 2023.030(b) ~ (d).)_ Indeed, “[d]isobeying a court
order to provide discovery” is itself a misuse of the discovery process for which a broad range of
sanctions is provided. (See Cal. Code Civ. Proc. sec. 2023.010(g). These sanctions include, but

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are not limited to contempt of court (Cal. Code Civ. Proc. sec. 2025.480(g), as well as issve
sanctions, in which a court may probibit the party who committed discovery misuse from
supporting designated claims. (See Cal, Code Civ. Proc. sec. 2023.030(b}. A court may also
order evidence sanctions, such as excluding a witness from testifying. (See Cal. Code Civ. Proc.
sec. 2023.030(c); Waicis v, Superior Court (1990) 226 Cal.App.3d 283, 287.) For example, in
the Waicis case, the court barred a plaintiff's expert from offering testimony when that expert
had been repeatedly uncooperative about scheduling his deposition, and walked out before his
deposition was over to attend a personal meeting. Finally, the court may order monetary
sanctions, including attorney’s fees, incurred by the parties seeking to enforce a court’s
discovery order. (See Cal. Code Civ. Proc. see. 2023.030(a).)

Mr. Alexander refuses to participate in discovery and has refused to attend his deposition.
The proper remedy is to exclude his testimony.
B. Terminating Sanctions Are Also Appropriate

Further, given Mr. Alexander's willful refusal to participate in discovery, including his
court-ordered deposition, terminating sanctions are also appropriate. BUDD therefore secks
terminating sanctions. -

Iv. CONCLUSION

WHEREFORE, THE BUDD COMPANY respectfully requests that the witnesses
testimony be excluded; and further, that the sanction of dismissal with prejudice of the entire
Complaint against BUDD be imposed, because of the flagrant disregard of plaintiff for
fundamental pleading requirements, and his willingness to wasté judicial resources.

Li, 2010 GORDON & RES LLP

Dated: October

py, [Gey
Christopher D. Strunk
Attorneys for Defendant
THE BUDD COMPANY

MEM, OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO EXCLUDE