Preview
CHRISTOPHER
Electronically Filed
1 W. WOOD, ESQ. / SBN: 193955
CAMNHUNG T. LE, ESQ. 3/2/2021 11:37 AM
I SBN: 319570
2 DREYER BABICH BUCCOLA WOOD CAMPORA, LIP Superior Court of California
20 Bicentennial Circle County of Stanislaus
3 Sacramento, CA 95826 Clerk of the Court
Telephone: (916) 379-3500 By: Joshua Teixeira, Deputy
4 Facsimile: (916) 379-3599
5 Attorneys for Plaintiffs
6
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF STANISLAUS
10
11 TIFFANY BURR and RYAN BURR, Individually Case No.: CV-19-001129
and as Guardian ad Litem for TAYLOR BURR,
12 a minor, MEMORANDUM OF POINTS AND
AUTHORITY IN SUPPORT OF
13 Plain ti ifs, PLAINTIFFS’ MOTION TO COMPEL
DEPOSITION OF DEFENDANT ANTONIO
14 v. JOSE MENDOZA
15 GURNEY TRUCKING, INC., Date: March 12, 2021
ANTONIO JOSE MENDOZA and Time: 8:30 a.m.
16 DOES 1 through 10, inclusive, Dept.: 23
17 Defendants. Trial Date: April 20, 2021
18
19 I.
20 INTRODUCTION
21 This case arises out of a tractor-trailer versus motor vehicle collision that occurred on
22 February 21, 2018 in Modesto, California. Plaintiff TIFFANY BURR was traveling northbound on
23 Carver Road with her daughter TAYLOR BURR, a minor, seated as the backseat passenger and
24 came to the a complete stop for a red traffic light at the intersection. Upon a green light,
25 Ms. BURR entered the intersection and initiated a left turn to continue westbound on
26 State Route 219, when Defendant ANTONIO JOSE MENDOZA entered the intersection against a
27 red traffic light and broad-sided Ms. BURR’s vehicle, causing injuries and damages to Plaintiffs
28 TIFFANY BURR and TAYLOR BURR, a minor. Plaintiff RYAN BURR has a loss of consortium claim in
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Memorandum and Points of Authorities in Support of Plaintiffs’ Motion to Compel Deposition of
Defendant Antonio Jose Mend oza
1 connection to this matter (Declaration of Camnhung T. Le, Esq, herein after “Le Deci.” 4.) As a
2 result of this incident, Plaintiff TIFFANY BURR sustained significant injuries to her cervical spine
3 which required her to undergo an anterior cervical discectomy and fusion with instrumentation and
4 fixation at C5-6. Additionally, Ms. BURR sustained a traumatic brain injury, which has caused her
5 to experience cognitive difficulties (Le DecI 15.) Plaintiffs filed a Complaint in this matter on
6 February 13, 2019. Thereafter the parties engaged in written discovery; wherein Defendants
7 contest liability. Accordingly, Plaintiff must perform discovery to work up their theory of liability at
8 the time of trial. Further, Plaintiffs have a potential punitive claim against Defendants as it has
9 been discovered that Defendant GURNEY TRUCKING, INC. has a terrible record of driver safety.
10 Plaintiff requires the deposition of Defendant ANTONIO JOSE MENDOZA to uncover facts that may
11 establish their punitive claim (Le DecI 18.) Plaintiff properly noticed the Deposition of Defendant
12 ANTONIO JOSE MENDOZA; which Defense counsel has failed to produced their client and now
13 refuse to provide alternative dates for their client’s deposition. Thus, Plaintiff respectfully request
14 this Court grant on Order to Compel the deposition of Defendant ANTONIO JOSE MENDOZA.
15 II.
16 LEGAL DISCUSSION
17 Under the Civil Discovery Act ( 2016.010 et seq.), the scope of permissible discovery is
18 very broad. “[A]ny party may obtain discovery regarding any matter, not privileged, that is
19 relevant to the subject matter involved in the pending action or to the determination of any
20 motion made in that action, if the matter either is itself admissible in evidence or appears
21 reasonably calculated to lead to the discovery of admissible evidence.” ( 2017.010.) “In the
22 context of discovery, evidence is ‘relevant’ if it might reasonably assist a party in evaluating its
23 case, preparing for trial,or facilitating a settlement. Admissibility is not the test, and itis sufficient
24 if the information sought might reasonably lead to other, admissible evidence.” (Glenfed
25 Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) “Any doubts regarding
26 relevance are generally resolved in favor of allowing the discovery.” (Mercury Interactive Corp. v.
27 Klein (2007) 158 Cal.App.4th 60, 98.) Further, the discovery procedures are also “designed to
28 minimize the opportunities for fabrication and forgetfulness.” (Glenfed Development Corp. v.
-2-
Memorandum and Points of Authorities in Support of Plaintiffs’ Motion to Compel Deposition of
Defendant Antonio Jose Mendoza
1 Superior Court (1997) 53 Cal.App.4th 1113, 1119.) Consistent with these purposes, our Supreme
2 Court has often stated that discovery statutes are to be construed broadly in favor of disclosure,
3 so as to uphold the right to discovery whenever possible. (Greyhound, at pp. 377—378; Emerson,
4 at pp. 1107—1108.) “Matters sought are properly discoverable if they will aid in a party’s
5 preparation for trial.” (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 987 [118 Cal. Rptr. 2d
6 715].) Any party may obtain discovery one or more of the following methods: oral and written
7 depositions; interrogatories to a party; inspection of documents, things and places; physical and
8 mental examinations; requests for admissions; simultaneous exchanges of expert witness
9 information (C.C.P. § 2019.010). Further, a party may move an order compelling the deponent’s
10 attendance and testimony, and the production of any document (C.C.P. § 2025.450(a).)
11 Here, the topic of liability is at issue as Defendants refuse to admit liability. Plaintiffs must
12 perform discovery to substantiate their theory of liability at the time of trial. Thus, Plaintiffs
13 require the deposition of Defendant ANTONIO JOSE MENDOZA to discover relevant facts and
14 information pertinent to liability. Further, Plaintiff is investigating a potential punitive damage
15 claim against Defendant GURNEY TRUCKING, INC. as it has been discovered that they have a
16 terrible track record with respect to driver safety. Deposition of Defendant ANTONIO JOSE
17 MENDOZA will elicit facts with respect to policy procedure and training at GURNEY TRUCKING,
18 INC. that may support Plaintiffs’ punitive claim (Le Decl ¶116.) The deposition of Defendant
19 ANTONIO JOSE MENDOZA was properly noticed to go forward on February 18, 2021 (Le DecI
20 ¶110); however, defense failed to produce their client and represented that they would provide
21 Plaintiffs with alternative dates to re-schedule the deposition (Le DecI ¶111.) Trial in this matter is
22 set for April 20, 2021 and the trial deadlines are approaching, specifically, the last day to notice a
23 non-expert deposition is March 5, 2021 (Le Decl ¶19.) Accordingly, Plaintiffs’ counsel met and
24 conferred with Defense counsel and advised that if they fail to produce dates in a timely manner,
25 then Plaintiff will have to seek court intervention and file a motion to compel the deposition of
26 Defendant ANTONIO JOSE MENDOZA (Le DecI ¶112.) To date, defense counsel has yet to produce
27 alternative dates for the deposition of Defendant ANTONIO JOSE MENDOZA (Le DecI ¶115.) Plaintiff
28 must perform the deposition of ANTONIO JOSE MENDOZA in order to properly address the issue of
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Memorandum and Points of Authorities in Support of Plaintiffs’ Motion to Compel Deposition of
Defendant Antonio Jose Mendoza
1 liability at the time of trial. Additionally, Defendant ANTONIO JOSE MENDOZA’s deposition is
2 required for Plaintiffs’ investigation of punitive damages as he is in the best position to provide
3 information on policy, procedures and training at GURNEY TRUCKING, INC., as well as possible
4 other topics that may be discovered at the time of deposition (Le Deci 18.) Depositions are a valid
5 and common form of discovery. However, Defense has refused to admit liability,failed to produce
6 their client for his properly notice deposition and refuse to provide alternative dates to re-schedule
7 the deposition (Le Decl 117.) Plaintiff will face irreparable harm and undue justice if they are not
8 afforded the opportunity to depose Defendant ANTONIO JOSE MENDOZA as they will not be able
9 to properly prepare for trial. Accordingly, Plaintiff now requires an Order from the Court to compel
10 the deposition of Defendant ANTONIO JOSE MENDOZA.
11 III.
12 CONCLUSION
13 Plaintiffs are entitled to perform the necessary discovery to address liability at the time of
14 trial as well as discover facts that which will establish their punitive damage claim. Plaintiff
15 requires the deposition of Defendant ANTONIO JOSE MENDOZA to discover relevant information
16 and facts. Thus, Plaintiff respectfully requests this Court grant an Order to compel the deposition
17 of Defendant ANTONIO JOSE MENDOZA.
18 DATED: ‘i(ti’M c9 i DREYER BABICH BUCC LA WOOD CAMPORA, LLP
19
20 By:
CAM HUG .L
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Memorandum and Points of Authorities in Support of Plaintiffs’ Motion to Compel Deposition of
Defendant Antonio Jose Mendoza
1 PROOF OF SERVICE — CCP § 1013, 1013a, 2015.5
and California Rules of Court, Rules 2.306, 2.251
2
3 Burr v. Gurney Trucking Inc., et al.
Stanislaus County Superior Case No.: CV-19-001129
4
5 I, Erica Placeres, declare that:
6 I am a citizen of the United States and am over the age of eighteen years and not a
party to the within above-entitled action. I am an employee of Dreyer Babich Buccola Wood
7 Campora, LLP and my business address is 20 Bicentennial Circle, Sacramento, CA 95826.
8 On MarchZ, 2021, I served the within document:
9 MEMORANDUM OF POINTS AND AUTHORITY IN SUPPORT OF PLAINTIFFS’ MOTION TO
COMPEL DEPOSITION OF DEFENDANT ANTONIO JOSE MENDOZA
10
On the parties in said action addressed as follows:
11
SEE ATTACHED SERVICE LIST
12
BY MAIL: I am familiar with my employer’s practice for the collection and processing of
13 correspondence for mailing with the United States Postal Service and that each day’s mail
is deposited with the United States Postal Service that same day in the ordinary course of
14 business. On the date set forth above, I served the aforementioned document(s) on the
parties in said action by placing a true and correct copy thereof enclosed in a sealed
15 envelope with postage thereon fully prepaid, for collection and mailing on this date,
following ordinary business practices, at Sacramento, CA, addressed as set forth above.
16
BY ELECTRONIC TRANSMISSION: Based on a Court order or an agreement of the
17 parties to accept service by electronic transmission, I caused the documents to be
electronically sent to the persons on the attached service list. I did not receive, within a
18 reasonable time after the transmission, any electronic message or other indication that the
transmission was unsuccessful.
19
LI BY PERSONAL SERVICE: By personally delivering a true copy thereof to the office of the
20 addressee above.
21 LI BY OVERNIGHT COURIER: By causing a true copy and/or original thereof to be
personally delivered via the following overnight courier service:
22
I declare under penalty of perjury under the laws of the State of California that the
23 foregoing is true and correct, and that this declaration was exec ed on March_, 2021, at
Sacramento, CA.
24
25 ca Placeres
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Memorandum and Points of Authorities in Support of Plaintiffs’ Motion to Compel Deposition of
Defendant Antonio Jose Mendoza
1 SERVICE LIST
2 Daniel P. Schrader, Esq. Attorneys for Defendants,
KelleyT. Mahoney, Esq. GURNEY TRUCKING, INC. and
3 MANNING GROSS + MASSENBURG, LLP ANTONIO JOSE MENDOZA
201 Spear Street, l8 Floor
4 San Francisco, CA 94105
Telephone: (415) 512-4381
5 Facsimile: (415) 512-6791
Email: dschradermgmlaw.com;
6 KMahoneymqmlaw.com;
YM 00 re © m g ml a w .com
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Memorandum and Points of Authorities in Support of Plaintiffs’ Motion to Compel Deposition of
Defendant Antonio Jose Mendoza
Preview
CHRISTOPHER Electronically Filed 1 W. WOOD, ESQ. / SBN: 193955 CAMNHUNG T. LE, ESQ. 3/2/2021 11:37 AM I SBN: 319570 2 DREYER BABICH BUCCOLA WOOD CAMPORA, LIP Superior Court of California 20 Bicentennial Circle County of Stanislaus 3 Sacramento, CA 95826 Clerk of the Court Telephone: (916) 379-3500 By: Joshua Teixeira, Deputy 4 Facsimile: (916) 379-3599 5 Attorneys for Plaintiffs 6 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF STANISLAUS 10 11 TIFFANY BURR and RYAN BURR, Individually Case No.: CV-19-001129 and as Guardian ad Litem for TAYLOR BURR, 12 a minor, MEMORANDUM OF POINTS AND AUTHORITY IN SUPPORT OF 13 Plain ti ifs, PLAINTIFFS’ MOTION TO COMPEL DEPOSITION OF DEFENDANT ANTONIO 14 v. JOSE MENDOZA 15 GURNEY TRUCKING, INC., Date: March 12, 2021 ANTONIO JOSE MENDOZA and Time: 8:30 a.m. 16 DOES 1 through 10, inclusive, Dept.: 23 17 Defendants. Trial Date: April 20, 2021 18 19 I. 20 INTRODUCTION 21 This case arises out of a tractor-trailer versus motor vehicle collision that occurred on 22 February 21, 2018 in Modesto, California. Plaintiff TIFFANY BURR was traveling northbound on 23 Carver Road with her daughter TAYLOR BURR, a minor, seated as the backseat passenger and 24 came to the a complete stop for a red traffic light at the intersection. Upon a green light, 25 Ms. BURR entered the intersection and initiated a left turn to continue westbound on 26 State Route 219, when Defendant ANTONIO JOSE MENDOZA entered the intersection against a 27 red traffic light and broad-sided Ms. BURR’s vehicle, causing injuries and damages to Plaintiffs 28 TIFFANY BURR and TAYLOR BURR, a minor. Plaintiff RYAN BURR has a loss of consortium claim in -1- Memorandum and Points of Authorities in Support of Plaintiffs’ Motion to Compel Deposition of Defendant Antonio Jose Mend oza 1 connection to this matter (Declaration of Camnhung T. Le, Esq, herein after “Le Deci.” 4.) As a 2 result of this incident, Plaintiff TIFFANY BURR sustained significant injuries to her cervical spine 3 which required her to undergo an anterior cervical discectomy and fusion with instrumentation and 4 fixation at C5-6. Additionally, Ms. BURR sustained a traumatic brain injury, which has caused her 5 to experience cognitive difficulties (Le DecI 15.) Plaintiffs filed a Complaint in this matter on 6 February 13, 2019. Thereafter the parties engaged in written discovery; wherein Defendants 7 contest liability. Accordingly, Plaintiff must perform discovery to work up their theory of liability at 8 the time of trial. Further, Plaintiffs have a potential punitive claim against Defendants as it has 9 been discovered that Defendant GURNEY TRUCKING, INC. has a terrible record of driver safety. 10 Plaintiff requires the deposition of Defendant ANTONIO JOSE MENDOZA to uncover facts that may 11 establish their punitive claim (Le DecI 18.) Plaintiff properly noticed the Deposition of Defendant 12 ANTONIO JOSE MENDOZA; which Defense counsel has failed to produced their client and now 13 refuse to provide alternative dates for their client’s deposition. Thus, Plaintiff respectfully request 14 this Court grant on Order to Compel the deposition of Defendant ANTONIO JOSE MENDOZA. 15 II. 16 LEGAL DISCUSSION 17 Under the Civil Discovery Act ( 2016.010 et seq.), the scope of permissible discovery is 18 very broad. “[A]ny party may obtain discovery regarding any matter, not privileged, that is 19 relevant to the subject matter involved in the pending action or to the determination of any 20 motion made in that action, if the matter either is itself admissible in evidence or appears 21 reasonably calculated to lead to the discovery of admissible evidence.” ( 2017.010.) “In the 22 context of discovery, evidence is ‘relevant’ if it might reasonably assist a party in evaluating its 23 case, preparing for trial,or facilitating a settlement. Admissibility is not the test, and itis sufficient 24 if the information sought might reasonably lead to other, admissible evidence.” (Glenfed 25 Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) “Any doubts regarding 26 relevance are generally resolved in favor of allowing the discovery.” (Mercury Interactive Corp. v. 27 Klein (2007) 158 Cal.App.4th 60, 98.) Further, the discovery procedures are also “designed to 28 minimize the opportunities for fabrication and forgetfulness.” (Glenfed Development Corp. v. -2- Memorandum and Points of Authorities in Support of Plaintiffs’ Motion to Compel Deposition of Defendant Antonio Jose Mendoza 1 Superior Court (1997) 53 Cal.App.4th 1113, 1119.) Consistent with these purposes, our Supreme 2 Court has often stated that discovery statutes are to be construed broadly in favor of disclosure, 3 so as to uphold the right to discovery whenever possible. (Greyhound, at pp. 377—378; Emerson, 4 at pp. 1107—1108.) “Matters sought are properly discoverable if they will aid in a party’s 5 preparation for trial.” (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 987 [118 Cal. Rptr. 2d 6 715].) Any party may obtain discovery one or more of the following methods: oral and written 7 depositions; interrogatories to a party; inspection of documents, things and places; physical and 8 mental examinations; requests for admissions; simultaneous exchanges of expert witness 9 information (C.C.P. § 2019.010). Further, a party may move an order compelling the deponent’s 10 attendance and testimony, and the production of any document (C.C.P. § 2025.450(a).) 11 Here, the topic of liability is at issue as Defendants refuse to admit liability. Plaintiffs must 12 perform discovery to substantiate their theory of liability at the time of trial. Thus, Plaintiffs 13 require the deposition of Defendant ANTONIO JOSE MENDOZA to discover relevant facts and 14 information pertinent to liability. Further, Plaintiff is investigating a potential punitive damage 15 claim against Defendant GURNEY TRUCKING, INC. as it has been discovered that they have a 16 terrible track record with respect to driver safety. Deposition of Defendant ANTONIO JOSE 17 MENDOZA will elicit facts with respect to policy procedure and training at GURNEY TRUCKING, 18 INC. that may support Plaintiffs’ punitive claim (Le Decl ¶116.) The deposition of Defendant 19 ANTONIO JOSE MENDOZA was properly noticed to go forward on February 18, 2021 (Le DecI 20 ¶110); however, defense failed to produce their client and represented that they would provide 21 Plaintiffs with alternative dates to re-schedule the deposition (Le DecI ¶111.) Trial in this matter is 22 set for April 20, 2021 and the trial deadlines are approaching, specifically, the last day to notice a 23 non-expert deposition is March 5, 2021 (Le Decl ¶19.) Accordingly, Plaintiffs’ counsel met and 24 conferred with Defense counsel and advised that if they fail to produce dates in a timely manner, 25 then Plaintiff will have to seek court intervention and file a motion to compel the deposition of 26 Defendant ANTONIO JOSE MENDOZA (Le DecI ¶112.) To date, defense counsel has yet to produce 27 alternative dates for the deposition of Defendant ANTONIO JOSE MENDOZA (Le DecI ¶115.) Plaintiff 28 must perform the deposition of ANTONIO JOSE MENDOZA in order to properly address the issue of -3- Memorandum and Points of Authorities in Support of Plaintiffs’ Motion to Compel Deposition of Defendant Antonio Jose Mendoza 1 liability at the time of trial. Additionally, Defendant ANTONIO JOSE MENDOZA’s deposition is 2 required for Plaintiffs’ investigation of punitive damages as he is in the best position to provide 3 information on policy, procedures and training at GURNEY TRUCKING, INC., as well as possible 4 other topics that may be discovered at the time of deposition (Le Deci 18.) Depositions are a valid 5 and common form of discovery. However, Defense has refused to admit liability,failed to produce 6 their client for his properly notice deposition and refuse to provide alternative dates to re-schedule 7 the deposition (Le Decl 117.) Plaintiff will face irreparable harm and undue justice if they are not 8 afforded the opportunity to depose Defendant ANTONIO JOSE MENDOZA as they will not be able 9 to properly prepare for trial. Accordingly, Plaintiff now requires an Order from the Court to compel 10 the deposition of Defendant ANTONIO JOSE MENDOZA. 11 III. 12 CONCLUSION 13 Plaintiffs are entitled to perform the necessary discovery to address liability at the time of 14 trial as well as discover facts that which will establish their punitive damage claim. Plaintiff 15 requires the deposition of Defendant ANTONIO JOSE MENDOZA to discover relevant information 16 and facts. Thus, Plaintiff respectfully requests this Court grant an Order to compel the deposition 17 of Defendant ANTONIO JOSE MENDOZA. 18 DATED: ‘i(ti’M c9 i DREYER BABICH BUCC LA WOOD CAMPORA, LLP 19 20 By: CAM HUG .L 21 22 23 24 25 26 27 28 -4- Memorandum and Points of Authorities in Support of Plaintiffs’ Motion to Compel Deposition of Defendant Antonio Jose Mendoza 1 PROOF OF SERVICE — CCP § 1013, 1013a, 2015.5 and California Rules of Court, Rules 2.306, 2.251 2 3 Burr v. Gurney Trucking Inc., et al. Stanislaus County Superior Case No.: CV-19-001129 4 5 I, Erica Placeres, declare that: 6 I am a citizen of the United States and am over the age of eighteen years and not a party to the within above-entitled action. I am an employee of Dreyer Babich Buccola Wood 7 Campora, LLP and my business address is 20 Bicentennial Circle, Sacramento, CA 95826. 8 On MarchZ, 2021, I served the within document: 9 MEMORANDUM OF POINTS AND AUTHORITY IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL DEPOSITION OF DEFENDANT ANTONIO JOSE MENDOZA 10 On the parties in said action addressed as follows: 11 SEE ATTACHED SERVICE LIST 12 BY MAIL: I am familiar with my employer’s practice for the collection and processing of 13 correspondence for mailing with the United States Postal Service and that each day’s mail is deposited with the United States Postal Service that same day in the ordinary course of 14 business. On the date set forth above, I served the aforementioned document(s) on the parties in said action by placing a true and correct copy thereof enclosed in a sealed 15 envelope with postage thereon fully prepaid, for collection and mailing on this date, following ordinary business practices, at Sacramento, CA, addressed as set forth above. 16 BY ELECTRONIC TRANSMISSION: Based on a Court order or an agreement of the 17 parties to accept service by electronic transmission, I caused the documents to be electronically sent to the persons on the attached service list. I did not receive, within a 18 reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. 19 LI BY PERSONAL SERVICE: By personally delivering a true copy thereof to the office of the 20 addressee above. 21 LI BY OVERNIGHT COURIER: By causing a true copy and/or original thereof to be personally delivered via the following overnight courier service: 22 I declare under penalty of perjury under the laws of the State of California that the 23 foregoing is true and correct, and that this declaration was exec ed on March_, 2021, at Sacramento, CA. 24 25 ca Placeres 26 27 28 -5- Memorandum and Points of Authorities in Support of Plaintiffs’ Motion to Compel Deposition of Defendant Antonio Jose Mendoza 1 SERVICE LIST 2 Daniel P. Schrader, Esq. Attorneys for Defendants, KelleyT. Mahoney, Esq. GURNEY TRUCKING, INC. and 3 MANNING GROSS + MASSENBURG, LLP ANTONIO JOSE MENDOZA 201 Spear Street, l8 Floor 4 San Francisco, CA 94105 Telephone: (415) 512-4381 5 Facsimile: (415) 512-6791 Email: dschradermgmlaw.com; 6 KMahoneymqmlaw.com; YM 00 re © m g ml a w .com 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- Memorandum and Points of Authorities in Support of Plaintiffs’ Motion to Compel Deposition of Defendant Antonio Jose Mendoza