Preview
© gaya
—
Michele Ballard Miller (SBN 104198)
. mbm@millerlawgroup.com
Mary L. Guilfoyle (SBN 143308) FELED
olUcOmUCUCUCNWOWUNCUCUCUODOCO
ALAMEDA
ODN
mlg@millerlawgroup.com COUNTY
Gregory F. Fortescue (SBN 249133)
gff@millerlawgroup.com
JUL 0 6 2011
MILLER LAW GROUP CLERK OF THE SUPERIOR
OC
T
A Professional Corporation By Zea
111 Sutter Street, Suite 700 Deputy
San Francisco, CA 94104
Tel. (415) 464-4300
Fax (415) 464-4336
Attorneys for Defendants
KAISER FOUNDATION HOSPITALS,
KAISER FOUNDATION HEALTH PLAN, INC.,
—_—
and RON NAVARRA
—
—
SUPERIOR COURT OF THE STATE OF CALIFORNIA
NO
—
IN AND FOR THE COUNTY OF ALAMEDA
Ow
—
—
A
CORPORATION
CALIFORNIA
GROUP
ROBIN BONGON, Case No.: RG10495979
on
—
LAW
ASSIGNED FOR ALL PURPOSES TO
FRANCISCO,
PROFESSIONAI,
; oO
—
JUDGE JohnM. True, Ill
MILLER
Plaintiff,
DEPARTMENT 512
_
N
SAN
A
Co
=
DEFENDANT KAISER FOUNDATION
HOSPITALS’ MEMORANDUM OF POINTS.
co
=
KAISER FOUNDATION HOSPITALS, INC.; AND AUTHORITIES IN SUPPORT OF ITS
KAISER FOUNDATION HEALTH PLAN, INC.: SUPPLEMENTAL OPPOSITION TO
Oo
NO
KAISER PERMANENTE, INC.; RON PLAINTIFF’S MOTION TO COMPEL AND
IN SUPPORT OF ITS REQUEST FOR
he)
=
NAVARRA, and DOES 1-10, inclusive,
SANCTIONS
ine)
NO
Defendants. Date: July 12, 2011
Le)
NO
Time: 3:00 pm
Dept: 512
NO
A
Judge: John M. True, Ill
No
oO
Reservation Nos.: R-1162620; R- 1162618
ie)
oOo
and R-1162612
NO
N
Complaint filed: January 27, 2010
(oe)
RO
DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPLEMENTAL OPPOSITION TO PLAINTIFF’S
MOTION TO COMPEL AND IN SUPPORT OF ITS REQUEST FOR SANCTIONS -Case No. RG10495979
—
TABLE OF CONTENTS
Page
l. =.INTRODUCTION .......0...0 ee Se ccceeesnsceenaneeesneessaeeceuaneesssatesasneseseaes Le ectteeeetteeeees
1
II. | STATEMENT OF FACTS 0.0... ccc
ceccccceeceesteeeseeeeecnaeeesneeececeeensneeecciseeesenieesateeestreeeas
3
Wl ARGUMENT 0.0... ccc ccc eectsneccceceeenecnecnetecretctnesnitrrrenrenensceases 6
A. Plaintiff Offers No Principled Reason to Continue This Motion Hearing............ 6
B. The Motion to Compel Depositions Is Now Moot and Plaintiff's Persistence
in Seeking an Order to Compel These Depositions isWorthy of Sanctions......6
—
C. Plaintiffs Issues Regarding Defendant's. Objections and Responses to
—
Document Requests Nos. 8 and 15 are Without Merit. ........00... eee 8
av
1. . Defendant Objected to Both the Timeframe and Scope of Request
No. 8, and Yet Still Produced Documents Responsive to the Request. .8
—
2. Request No. 15 Goes Well Beyond the Scope of Permissible
=
CORPORATION
CALIFORNIA
DIE Sel0)\(—15)ee re 9
Group
=
3. The Complaint Served on Defendant Is Not Same As Complaint
LAW
FRANCISCO,
PROFESSIONAL
=
Filed With the Court. .....0.0.cccccccccccccecesseeessesestesescseeecstestesssseseneenteseees
11
MILLER
=
D.. Plaintiff's Counsel Should be Sanctioned for Her Continuing Failure to
SAN
Discharge Her Meet and Confer Obligations and Her Lack of Evidentiary or
A
—
Legal Support for Either the Original or Supplementary Motions. ...................
12
—
IV. CONCLUSION... cece cece ees neertssessseesesenteeessnsssesenssseseesssnsusseesatsseseesesaeete
eevee 15
Ne)
NO
NO
NO
RO
NO
NO
NO
foe]
N
DEFENDANT’S SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF'S
MOTION TO COMPEL AND IN SUPPORT OF ITS REQUEST FOR SANCTIONS - Case No. RG10495979
=
No TABLE OF AUTHORITIES
Page
Cases
w
Clark v. Runyon
A
(8th Cir. 2001) 218 F. 3d 915...........cececeecueeceeeccevsuveceubansueecesausuecccssssvessesecauvecececaueeeeeeeaaesss
11
on
Fairmont Ins. Co. v. Superior Court (Stendell) |
Oo
(2000) 22 Cal.4th 245 oo... be cee
ceececeecaeeeeceuseeeeesessuuvecccssuuueessssatesestaaeaeess
7
oN
Hargrow v. Fed. Express Corp.
(9th Cir. 2009) 2009 U.S. App. LEXIS 1928.00... elec cece eceetsteeeteeetsseeeeeentaaees
10
Co
Maldonado v. Superior Court (ICG Telecom Group, Inc.)
co
(2002) 94 Cal.App.4th 1390 «0.2.0... ccc cceseeeeeleseecsessseeeeneeeceeeeceeseeeeeaaaeaeeeeeeceeveaaaaaes
7
oO
|
Smith v. United Parcel Service
=
(N.D. Cal. 2006) 2006 U.S. Dist. LEXIS 25104 0... eee eeeneeeenees 10
=
DN
=
Sprint/United Management Co. v. Mendelsohn .
©(2008) 552 U.S. 379. cece cetera e tee tectecneseesnecnecnesnestesnasnessesesneegtenteeeateas
10
WHO
a=
Vasquez v. County of Los Angeles
FP
=
CORPORATION
CALIFORNIA
(9th Cir. 2003) 349 F. 3d 634 oc eeeeeeecee ete testeseeaecesecesesneesneeseeeseeeseaeeeeeeeatens
10
Group
TN
a2
Zeinali v. Raytheon Co.
LAW
ODO
FRANCISCO,
PROFESSIONAL
(S.D. Cal. 2008) 2008 U.S. Dist. LEXIS 89260 wooo ccccecceeeeeeseseccceeeeanaaes
10
2
MILLER
S|
WBN
SAN
Statutes
A
SB
Code of Civil Procedure section 2016.040 oo... ieeecccccneeeeseceeanesecseneneeeeess 1,2, 12, 14
S|
O
Code of Civil Procedure section 2017.010 .........0....00.
“ccestutesesstsstestesiteaesees
veceeeutteeeeeees:
10
89D
DHYO
Code of Civil Procedure section 2025.220 o.oo. cccee
ccc ccceeeccceeneeveesenerececeeeaes
cceuetevevetsesesees
7
F|F
DN
Code of Civil Procedure section 2025.280 oo..cccsccccsssssssessesustevesessessssessrstistsiteeseessssesssasisteeee
7
NYO
PR
PO
Code of Civil Procedure section 2025.610 .00......
cc ceeeseeeeeeee: Leveveeeeseeesesseseeaeaccesesteeseseeeeeeeeel
WHO
Code of Civil Procedure section 2030.300 .......ccccccccscesseeeee vecesseststesstessiesssestetesseee
1,2, 12, 14
BR
RO
RO
on
Code of Civil Procedure section 2031.030........ bvevessrseteeeeeees ce eeeceeeceeececcevesecueceueeeuececeueeaeeenes
9
om
RO
Code of Civil Procedure section 2031.310 20.0...
..ccccccccccccccccccccccceccusececsccauseecteccusecrserscenees
1,12
RO
on
NO
DEFENDANT’S SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S
_MOTION TO COMPEL AND INSUPPORT OF ITS REQUEST FOR SANCTIONS -Case No. RG10495979
o 6
I. INTRODUCTION
_
RO
On March 21, 2011, Marylon M. Boyd on behalf of her client filed Plaintiff Robin
Ww
Bongon’s (‘Plaintiff’) Motion to Compel Further Responses, Depositions, and Deem
as
Admissions Admitted (“Plaintiffs Original Motion”). She did so even though (1) she failed to
an
confer informally with defense counsel prior to its filing; (2) the Original Motion was completely |
Oo
devoid of any substantive legal basis; and (3) it was based upon patently false allegations that
NN
Defendant Kaiser Foundation Hospitals (“Kaiser” or “Defendant’) had not complied with its
©
discovery obligations. On May 3, 2011, this Court issued its Order on Plaintiff's Original
oO
Motion (“Court’s May 3rd Order”) stating, among other things, that Plaintiff's counsel had
oO
failed to discharge her. meet and confer obligations pursuant to Code of Civil Procedure
=
=
sections 2016.040, 2030.300(b), 2031.310(b)(2), and 2033.290 (b). The Court ordered the
DY
@
parties to meet either in person or by telephone in a good faith attemptto resolve their
=
W
differences regarding the issues raised in Plaintiff's Original Motion. The Court provided that
BR
=
CORPORATION
CALIFORNIA
Group
Plaintiff should file supplemental papers in support of Plaintiff's Original Motion only if the
oO
=
Law
parties were unable to resolve its disputes after making a good faith attempt to do so.
FRANCISCO,
ODO
S@&
PROFESSIONAL
MILLER
&
N
SAN
DBA
A
Plaintiff's counsel's efforts to meet and confer since that time can only be
&@&
described as anemic. Defense counsel had to organize and host a conference call between
Oo
|=
parties’ counsel on May 10, 2011. Defense counsel had to propose the list of topics and only
CO
KM
after some urging received a list from Plaintiffs counsel a few hours before the call. Since
|S
NY
that conference call, defense counsel has tried in vain to seek further engagement from
NY
WH
Plaintiff's counsel, but has been greeted by nothing but silence. The first word that defense
NP
counsel received from Ms. Boyd since May 10th was a voicemail message on the day her
B
NY
supplemental papers were due, stating she knew she “needed to file something today” if she
OT
NH
wished “to continue with her Motion to Compel.”
OO
NM MO
on
Not only has Plaintiffs counsel utterly failed to meet her obligations imposed by
hm
1
DEFENDANT’S SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S
MOTION TO COMPEL AND INSUPPORT OF ITS REQUEST FOR SANCTIONS - Case No. RG10495979
oOo #~ @
=
the Court’s May 3rd Order, she also chooses to persist what can only be- characterized as
frivolous and groundless motion practice. She is seeking to compel depositions that either
DY
are already completed or that she voluntarily took off calendar and never re-noticed. She is
WO
seeking to compel production of documents that either have already been produced or which
FF
fall far outside the scope of permissible discovery. She is also seeking to enforce a document
ao
request that could serve as an exemplar as one of the most impermissibly overbroad
OO
document demands imaginable - “Any other documents which involve Plaintiff.”
NN
OO
Oo
Finally, in the course of preparing this Supplemental Opposition to Plaintiff's
Motion to Compel and in Support of its Request For Sanctions (“Defendant's Supplemental
oD
Opposition’), Defendant has learned for the first time that Plaintiff failed to serve the effective
=
Complaint in this action on Defendant, but rather served some other version which was never
NO
filed with the Court. While this is not squarely before the Court in Plaintiff's Motion, Defendant
Ww
feels compelled to raise this issue now for the following reasons: (1) to provide some
&
CORPORATION
CALIFORNIA
GROuP
background as to why Defendant was confused by Plaintiffs counsel repeated assertion that
ao
LAW
Plaintiff had a cause of action for Intentional Infliction of Emotional Distress (“IIED”); (2) to put
FRANCISCO,
PROFESSIONAL
oO
MILLER
the Court and Plaintiff on notice of this recent revelation; and (3) to provide yet another
N
SAN
A
example of Plaintiffs counsel questionable conduct in the course of this litigation.
[oe]
©
For these reasons, Kaiser seeks appropriate sanctions against Plaintiff's
Oo
counsel for failing to discharge her meet and confer obligations pursuant to this Court’s May
=
3rd Order and Code of Civil Procedure sections 2016.040, 2023.010 (i), 2023.020. Kaiser
NO
also seeks sanctions for being forced to oppose this frivolous Motion pursuant to sections
Ww
2023.010 (h), 2030.300 (d), 2031.320 (b), and 2033.290 (d). Kaiser also respectfully requests
&
this Court liftits suspension on previously imposed sanctions against Ms. Boyd due to her
on
continuing misuse of discovery in direct contravention of the Court's Amended Order Granting
Oo
In Part Defendant's Motion to Compe! issued on February 25, 2011 (“Court's Amended
N
Order”) and Code of Civil Procedure section 2023.010 (b), (c), (h), and (i).
CO
2
DEFENDANT’S SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S
MOTION TO COMPEL AND IN SUPPORT OF ITS REQUEST FOR SANCTIONS - Case No. RG10495979
=
WD . STATEMENT OF FACTS
- On April 18, 2011, the day before Defendant’s Opposition to Plaintiff's Original
Motion was due, Plaintiff's counsel, Marylon Boyd requested that the hearing on two aspects
AB
of the Original Motion (i.e., to Deem Admissions Admitted and to Compel Deposition) be
A
continued. (Declaration of Gregory F. Fortescue in Support of Defendant Kaiser Foundation |
ODO
Hospitals’ Supplemental Opposition to Plaintiffs Motion to Compel and in Support of its
AN
Request for Sanctions (“Fortescue Supp. Decl.”), J 2, Exh. 1.) The Court continued these
,
aspects of Plaintiffs Motion until July 12, 2011. Id. By the time Ms. Boyd made this request,
O
defense counsel had fully completed Defendant Kaiser’s Opposition to Plaintiff's Motion to
CO
a
3B
Compel and in Support of Its Request for Sanctions (“Defendant's Original Opposition”), so
a
Defendant filed itas scheduled on April 19, 2011. (Fortescue Supp. Decl. J] 3.) That same
a
WH
day, Plaintiff's counsel deposed Patty Gunderson. (Fortescue Supp. Decl. q 4.) The next
Ba
day, April 20, 2011, Ms. Boyd deposed Carlos Avila. /d. She closed his deposition on April
.
sw
B
CORPORATION
CALIFORNIA
Group
21,2011. Id. | |
OG
@
LAW
ODO
FRANCISCO,
PROFESSIONAL
Boa
MILLER
On May 3, 2011, this Court issued itsOrder on Plaintiff's Original Motion (“May
ON
SAN
A
3rd Order”), ruling that Kaiser had not waived its objections to written discovery, and that
ABA
Plaintiffs counsel had failed to make a reasonable and good faith attempt to resolve
oO
B@
informally each issue presented in the Motion. (Fortescue. Supp. Decl. 4 5, Exh. 2.) The
O
NY
Court ordered the parties to meet and confer by telephone or face-to-face in an attempt to
=
NY
resolve these issues. /d.
NYO
NY NH
fo
The same day, Ms. Boyd called defense counsel Gregory Fortescue and
HY
requested that the deposition of Anne Dench, which she had noticed for May 10, 2011 and
hw
oa
which was a subject of Plaintiffs Original Motion, be taken off calendar indefinitely.
NM NM
ont
NM
3
DEFENDANT'S SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF'S
MOTION TO COMPEL AND INSUPPORT OF ITS REQUEST FOR SANCTIONS -Case No. RG10495979
> (Fortescue Supp. Decl. 7 6.)' Later that afternoon, Mr. Fortescue sent an email to Ms. Boyd
and her co-counsel, Andrea Rosa, suggesting a date and time for a conference call to meet
DPS
and confer pursuant to Judge True’s order. (Fortescue Supp. Decl. 4 6, Exh. 3.) Mr.
W}O
Fortescue provided a listof anticipated discovery issues and requested that Plaintiff's counsel
FF
provide any additions or changes so time could be used most efficiently. /d. After Mr.
oO
Fortescue followed up again the next day via email, Ms. Boyd confirmed the appointment for
OO
the conference call and requested defense counsel host the call, which Mr. Fortescue agreed
ON
to do. (Fortescue Supp. Decl. §| 7, Exh. 4.) Ms. Boyd also promised to provide a list of topics
that Plaintiffs counsel wished to cover on the call by close of business on Monday, May 9, |
Oo
2011. /d. Instead, Ms. Boyd sent the list less than three hours before the scheduled call on
oo
=
May 10th. (Fortescue Supp. Decl. | 9, Exh. 5.) The conference call between parties’ counsel
=>
=v
proceeded as scheduled, lasting a littleover one hour. (Fortescue Supp. Decl. {] 10.) The
—_
No
topics covered were limited to those which Ms. Boyd had raised in her email earlier in the day
Ow
and were subject to Plaintiff's Original Motion. /d.
=0C
£
CORPORATION
CALIFORNIA
Group
—_—
on
Law
After not hearing anything further from Plaintiffs counsel for over one week after
FRANCISCO,
PROFESSIONAL
oO
—
MILLER
the conference call, Mr. Fortescue sent a nine-page letter on May 19, 2011 to Ms. Boyd,
—
N
SAN
A
copying Ms. Rosa, in which he outlined in detail the issues covered during the call and the
[ee)
=
parties’ respective positions on each.” (Fortescue Supp. Decl. J 11, Exh. 6.) In an effort to
=
©
address one outstanding issue pertaining to the possible disclosure of two. reports that
NO
©
Defendant contends are protected by attorney-client privilege (but which both parties wish to
aaa
NO
have disclosed), Mr. Fortescue enclosed a draft Stipulation and Protective Order Regarding
RO
NO
NO
wo
NO
A
' Defendant’s counsel already had confirmed with Ms. Boyd that Ms. Dench’s deposition
RO
o
would go forward as noted.
RO
Oo
2 In the opening sentence of this letter, defense counsel erroneously referred to the call as
N
nN
taking place on May 12, 2011, when itin fact was on May 10, 2011. (Fortescue Supp. Decl. fJ
11, n. 1, Exh. 6.)
NO
©
4 ;
DEFENDANT’S SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S
MOTION TO COMPEL AND INSUPPORT OF ITS REQUEST FOR SANCTIONS - Case No. RG10495979
—_
Limited Privilege Waiver for review by Plaintiff's counsel.° (Fortescue Supp. Decl. ¥] 11, Exhs.
6-7.) Plaintiff's counsel never responded to this letter prior to filing the Supplemental
DN
Motion.’ Id.
WO
FF
In an attempt to address another issue raised by Plaintiffs counsel during the
oO
May 10th conference call, Mr. Fortescue sent a letter on June 6, 2011 to Plaintiff's counsel in
OO
which he enclosed copies of meeting minutes from the Peer Group that oversees the
NN
Biomedical Engineering Training (“BET”) program which Plaintiff participated in from February
Oo
2005 to September 2007. (Fortescue Supp. Decl. § 12, Exh. 8.) As detailed in Mr.
Oo
Co
Fortescue’s May 19th letter to Plaintiff's counsel, all other documents related to Plaintiff's
participation in this BET program and regarding the BET program itself were included its
original document production served on January 24, 2011. (See Fortescue Supp. Decl. J 11,
Exh. 6, pp. 4-5.) Once again, Plaintiffs counsel! never responded in any manner to the June
6th letter. (Fortescue Supp. Decl. J 12.)
CORPORATION
CALIFORNIA
Group
Law
In fact, since the May 10th conference call, Plaintiff's counsel made no attempt
FRANCISCO,
PROFESSIONAL
MILLER
to contact defense counsel for any reason until the day that Plaintiffs Supplemental Motion
SAN
A
papers were due. (Fortescue Supp. Decl. J 13.) On June 27, 2011, Ms. Boyd left a voicemail
message for Mr. Fortescue requesting that he call her to discuss “a couple of questions
regarding discovery” because she understood from the Court’s order she “needed to file
* Defendant had initially proposed that the parties enter into this type of stipulation as part of
its original responses to Plaintiffs Request for Production of Documents, Set One, but
Plaintiffs counsel never responded prior to filing this Motion. (See Declaration of Gregory F.
Fortescue in Support of Defendant’s Opposition to Plaintiff's Motion to Compel and in Support
of Its Request for Sanctions (“Fortescue Orig. Decl.”), at | 22, Exh. 22 (Defendant’s
responses to document requests numbers 12 and 13).) ©
4 The first defense counsel learned that Plaintiff was willing to stipulate to the Protective Order
was when a signed copy appeared as an exhibit to Ms. Boyd’s Declaration in Support of
Plaintiff's Supplemental Motion to Compel Further Discovery Responses. (Fortescue Supp.
Decl. J 15.) .
5
DEFENDANT’S SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S
MOTION TO COMPEL AND INSUPPORT OF ITS REQUEST FOR SANCTIONS -Case No. RG10495979
something today” ifshe wished to “continue with her Motion to Compel.” (Fortescue Supp.
—_
Decl. | 14.) Mr. Fortescue returned her call later that.afternoon but was unable to reach her.
RO
Id.
Ww
;
A
lll. ARGUMENT
an
Oo?
A. Plaintiff Offers No Principled Reason to Continue This Motion Hearing.
N
[oe]
| Plaintiff has requested that this Court continue the hearing on her Motion for
oO
another sixty (60) days so she can “be allowed to further supplement the motions should
oO
—
sufficient resolution not be completed within 60 days.” In effect, Plaintiff is requesting that the
=
=
Court be placed on something akin to a continuous retainer so she can raise various
NO
=
discovery issues as they arise in the course of litigation. There is no authority whatsoever for
—
w
this proposition. Furthermore, if:Plaintiff's. counsel contends that the parties have failed to
aS
—
CORPORATION
CALIFORNIA
Group
reach sufficient resolution to the issues raised in Plaintiff's Original Motion over the past sixty
on
Law
days, that can only be attributed to her woefully insufficient efforts to meet and confer.
FRANCISCO,
(o>)
PROFESSIONAL
=>
MILLER
Neither this Court nor Defendant should be made to wait while Plaintiff's counsel struggles to
~™
a
SAN
A
determine exactly why she brought this Motion on behalf of her client in the first place.
co
—
Defendant respectfully requests that this Court deny Plaintiffs request for an additional 60-
oO
=
day continuance and that.the hearing on this Motion go forward as scheduled on July 12, |.-
ro)
No
2011.
RO
=
bho
NO
B. The Motion to Compel Depositions Is Now Moot and Plaintiff's Persistence in
wo
NO
Seeking an Order to Compel These Depositions is Worthy of Sanctions.
NO
&
A party or party-affiliated witness is obligated to attend and testify at a
NO
oO
deposition after being properly and timely.served with a deposition notice indicating the date,
NO
oO
~“N
NO
oO
N
6
DEFENDANT’S SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S
MOTION TO COMPEL AND INSUPPORT OF ITS REQUEST FOR SANCTIONS - Case No. RG10495979
® | @
time, and place of deposition. Code Civ. Proc. §§ 2025.220(a)(1), (2), 2025.280.° A person
—_
formerly affiliated with a party (e.g., a former employee of a corporate party) is not required to
attend a deposition unless she is served with a subpoena. Maldonado v. Superior Court (ICG
Telecom Group, Inc.) (2002) 94 Cal.App.4th 1390, 1398. No person may be deposed more
;
than once without a court order based on a showing of good cause. § 2025.610 (a); Fairmont
Ins. Co. v. Superior Court (Stendell) (2000) 22 Cal.4th 245, 254.
When Plaintiff originally filed this Motion, she was seeking, among other things,
to compel the appearances of Defendant Ron Navarra, Carlos Avila, Anne Dench and Patty
Gunderson for deposition. As was stated in Defendant’s Original Opposition, Plaintiff had
=
noticed these depositions only three days before filing the Original Motion to compel them.
=
(Fortescue Orig. Decl. [J 32, 33, 34 Exh. 32, 33. 34.) Defendant Navarra’s deposition was
=
completed on April 5 and 6, 2011. (Fortescue Orig. Decl. 7 37.) The deposition of Ms.
—
Gunderson, a former employee of Defendant who voluntarily chose to appear, was completed
—
CORPORATION
CALIFORNIA
Group
on April 19, 2011. (Fortescue Supp. Decl. 4] 4.) Mr. Avila’s deposition was completed on April
—
Law
20 and 21, 2011. ld. Thus, the portion of this Motion seeking to compel these depositions is
FRANCISCO,
PROFESSIONAL
—
MILLER
now moot. In Plaintiff's Supplemental Motion, she raises for the firsttime the issue of whether
—
SAN
A
Plaintiff has good cause to obtain a court order to reopen the depositions of Defendant
—
Navarra and Ms. Gunderson, but this is not an issue properly before this Court. Furthermore,
—
Plaintiffs counsel has not made a single attempt to meet and confer with defense counsel
NO
regarding this issue. (Fortescue Supp. Decl. J 13.) Thus, this argument is premature and
RO
should be completely disregarded.
NO
No
With regard to the deposition of Anne Dench, Defendant was prepared to
NO
‘produce Ms. Dench on May 10, 2011 as noticed, but Plaintiffs counsel informed Defendant
ine)
she wanted it taken off calendar for some unknown reason. (Fortescue Supp. Decl. J 6.)
NO
No
° All subsequent statutory referen
Preview
© gaya — Michele Ballard Miller (SBN 104198) . mbm@millerlawgroup.com Mary L. Guilfoyle (SBN 143308) FELED olUcOmUCUCUCNWOWUNCUCUCUODOCO ALAMEDA ODN mlg@millerlawgroup.com COUNTY Gregory F. Fortescue (SBN 249133) gff@millerlawgroup.com JUL 0 6 2011 MILLER LAW GROUP CLERK OF THE SUPERIOR OC T A Professional Corporation By Zea 111 Sutter Street, Suite 700 Deputy San Francisco, CA 94104 Tel. (415) 464-4300 Fax (415) 464-4336 Attorneys for Defendants KAISER FOUNDATION HOSPITALS, KAISER FOUNDATION HEALTH PLAN, INC., —_— and RON NAVARRA — — SUPERIOR COURT OF THE STATE OF CALIFORNIA NO — IN AND FOR THE COUNTY OF ALAMEDA Ow — — A CORPORATION CALIFORNIA GROUP ROBIN BONGON, Case No.: RG10495979 on — LAW ASSIGNED FOR ALL PURPOSES TO FRANCISCO, PROFESSIONAI, ; oO — JUDGE JohnM. True, Ill MILLER Plaintiff, DEPARTMENT 512 _ N SAN A Co = DEFENDANT KAISER FOUNDATION HOSPITALS’ MEMORANDUM OF POINTS. co = KAISER FOUNDATION HOSPITALS, INC.; AND AUTHORITIES IN SUPPORT OF ITS KAISER FOUNDATION HEALTH PLAN, INC.: SUPPLEMENTAL OPPOSITION TO Oo NO KAISER PERMANENTE, INC.; RON PLAINTIFF’S MOTION TO COMPEL AND IN SUPPORT OF ITS REQUEST FOR he) = NAVARRA, and DOES 1-10, inclusive, SANCTIONS ine) NO Defendants. Date: July 12, 2011 Le) NO Time: 3:00 pm Dept: 512 NO A Judge: John M. True, Ill No oO Reservation Nos.: R-1162620; R- 1162618 ie) oOo and R-1162612 NO N Complaint filed: January 27, 2010 (oe) RO DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPLEMENTAL OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL AND IN SUPPORT OF ITS REQUEST FOR SANCTIONS -Case No. RG10495979 — TABLE OF CONTENTS Page l. =.INTRODUCTION .......0...0 ee Se ccceeesnsceenaneeesneessaeeceuaneesssatesasneseseaes Le ectteeeetteeeees 1 II. | STATEMENT OF FACTS 0.0... ccc ceccccceeceesteeeseeeeecnaeeesneeececeeensneeecciseeesenieesateeestreeeas 3 Wl ARGUMENT 0.0... ccc ccc eectsneccceceeenecnecnetecretctnesnitrrrenrenensceases 6 A. Plaintiff Offers No Principled Reason to Continue This Motion Hearing............ 6 B. The Motion to Compel Depositions Is Now Moot and Plaintiff's Persistence in Seeking an Order to Compel These Depositions isWorthy of Sanctions......6 — C. Plaintiffs Issues Regarding Defendant's. Objections and Responses to — Document Requests Nos. 8 and 15 are Without Merit. ........00... eee 8 av 1. . Defendant Objected to Both the Timeframe and Scope of Request No. 8, and Yet Still Produced Documents Responsive to the Request. .8 — 2. Request No. 15 Goes Well Beyond the Scope of Permissible = CORPORATION CALIFORNIA DIE Sel0)\(—15)ee re 9 Group = 3. The Complaint Served on Defendant Is Not Same As Complaint LAW FRANCISCO, PROFESSIONAL = Filed With the Court. .....0.0.cccccccccccccecesseeessesestesescseeecstestesssseseneenteseees 11 MILLER = D.. Plaintiff's Counsel Should be Sanctioned for Her Continuing Failure to SAN Discharge Her Meet and Confer Obligations and Her Lack of Evidentiary or A — Legal Support for Either the Original or Supplementary Motions. ................... 12 — IV. CONCLUSION... cece cece ees neertssessseesesenteeessnsssesenssseseesssnsusseesatsseseesesaeete eevee 15 Ne) NO NO NO RO NO NO NO foe] N DEFENDANT’S SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL AND IN SUPPORT OF ITS REQUEST FOR SANCTIONS - Case No. RG10495979 = No TABLE OF AUTHORITIES Page Cases w Clark v. Runyon A (8th Cir. 2001) 218 F. 3d 915...........cececeecueeceeeccevsuveceubansueecesausuecccssssvessesecauvecececaueeeeeeeaaesss 11 on Fairmont Ins. Co. v. Superior Court (Stendell) | Oo (2000) 22 Cal.4th 245 oo... be cee ceececeecaeeeeceuseeeeesessuuvecccssuuueessssatesestaaeaeess 7 oN Hargrow v. Fed. Express Corp. (9th Cir. 2009) 2009 U.S. App. LEXIS 1928.00... elec cece eceetsteeeteeetsseeeeeentaaees 10 Co Maldonado v. Superior Court (ICG Telecom Group, Inc.) co (2002) 94 Cal.App.4th 1390 «0.2.0... ccc cceseeeeeleseecsessseeeeneeeceeeeceeseeeeeaaaeaeeeeeeceeveaaaaaes 7 oO | Smith v. United Parcel Service = (N.D. Cal. 2006) 2006 U.S. Dist. LEXIS 25104 0... eee eeeneeeenees 10 = DN = Sprint/United Management Co. v. Mendelsohn . ©(2008) 552 U.S. 379. cece cetera e tee tectecneseesnecnecnesnestesnasnessesesneegtenteeeateas 10 WHO a= Vasquez v. County of Los Angeles FP = CORPORATION CALIFORNIA (9th Cir. 2003) 349 F. 3d 634 oc eeeeeeecee ete testeseeaecesecesesneesneeseeeseeeseaeeeeeeeatens 10 Group TN a2 Zeinali v. Raytheon Co. LAW ODO FRANCISCO, PROFESSIONAL (S.D. Cal. 2008) 2008 U.S. Dist. LEXIS 89260 wooo ccccecceeeeeeseseccceeeeanaaes 10 2 MILLER S| WBN SAN Statutes A SB Code of Civil Procedure section 2016.040 oo... ieeecccccneeeeseceeanesecseneneeeeess 1,2, 12, 14 S| O Code of Civil Procedure section 2017.010 .........0....00. “ccestutesesstsstestesiteaesees veceeeutteeeeeees: 10 89D DHYO Code of Civil Procedure section 2025.220 o.oo. cccee ccc ccceeeccceeneeveesenerececeeeaes cceuetevevetsesesees 7 F|F DN Code of Civil Procedure section 2025.280 oo..cccsccccsssssssessesustevesessessssessrstistsiteeseessssesssasisteeee 7 NYO PR PO Code of Civil Procedure section 2025.610 .00...... cc ceeeseeeeeeee: Leveveeeeseeesesseseeaeaccesesteeseseeeeeeeeel WHO Code of Civil Procedure section 2030.300 .......ccccccccscesseeeee vecesseststesstessiesssestetesseee 1,2, 12, 14 BR RO RO on Code of Civil Procedure section 2031.030........ bvevessrseteeeeeees ce eeeceeeceeececcevesecueceueeeuececeueeaeeenes 9 om RO Code of Civil Procedure section 2031.310 20.0... ..ccccccccccccccccccccccceccusececsccauseecteccusecrserscenees 1,12 RO on NO DEFENDANT’S SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S _MOTION TO COMPEL AND INSUPPORT OF ITS REQUEST FOR SANCTIONS -Case No. RG10495979 o 6 I. INTRODUCTION _ RO On March 21, 2011, Marylon M. Boyd on behalf of her client filed Plaintiff Robin Ww Bongon’s (‘Plaintiff’) Motion to Compel Further Responses, Depositions, and Deem as Admissions Admitted (“Plaintiffs Original Motion”). She did so even though (1) she failed to an confer informally with defense counsel prior to its filing; (2) the Original Motion was completely | Oo devoid of any substantive legal basis; and (3) it was based upon patently false allegations that NN Defendant Kaiser Foundation Hospitals (“Kaiser” or “Defendant’) had not complied with its © discovery obligations. On May 3, 2011, this Court issued its Order on Plaintiff's Original oO Motion (“Court’s May 3rd Order”) stating, among other things, that Plaintiff's counsel had oO failed to discharge her. meet and confer obligations pursuant to Code of Civil Procedure = = sections 2016.040, 2030.300(b), 2031.310(b)(2), and 2033.290 (b). The Court ordered the DY @ parties to meet either in person or by telephone in a good faith attemptto resolve their = W differences regarding the issues raised in Plaintiff's Original Motion. The Court provided that BR = CORPORATION CALIFORNIA Group Plaintiff should file supplemental papers in support of Plaintiff's Original Motion only if the oO = Law parties were unable to resolve its disputes after making a good faith attempt to do so. FRANCISCO, ODO S@& PROFESSIONAL MILLER & N SAN DBA A Plaintiff's counsel's efforts to meet and confer since that time can only be &@& described as anemic. Defense counsel had to organize and host a conference call between Oo |= parties’ counsel on May 10, 2011. Defense counsel had to propose the list of topics and only CO KM after some urging received a list from Plaintiffs counsel a few hours before the call. Since |S NY that conference call, defense counsel has tried in vain to seek further engagement from NY WH Plaintiff's counsel, but has been greeted by nothing but silence. The first word that defense NP counsel received from Ms. Boyd since May 10th was a voicemail message on the day her B NY supplemental papers were due, stating she knew she “needed to file something today” if she OT NH wished “to continue with her Motion to Compel.” OO NM MO on Not only has Plaintiffs counsel utterly failed to meet her obligations imposed by hm 1 DEFENDANT’S SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL AND INSUPPORT OF ITS REQUEST FOR SANCTIONS - Case No. RG10495979 oOo #~ @ = the Court’s May 3rd Order, she also chooses to persist what can only be- characterized as frivolous and groundless motion practice. She is seeking to compel depositions that either DY are already completed or that she voluntarily took off calendar and never re-noticed. She is WO seeking to compel production of documents that either have already been produced or which FF fall far outside the scope of permissible discovery. She is also seeking to enforce a document ao request that could serve as an exemplar as one of the most impermissibly overbroad OO document demands imaginable - “Any other documents which involve Plaintiff.” NN OO Oo Finally, in the course of preparing this Supplemental Opposition to Plaintiff's Motion to Compel and in Support of its Request For Sanctions (“Defendant's Supplemental oD Opposition’), Defendant has learned for the first time that Plaintiff failed to serve the effective = Complaint in this action on Defendant, but rather served some other version which was never NO filed with the Court. While this is not squarely before the Court in Plaintiff's Motion, Defendant Ww feels compelled to raise this issue now for the following reasons: (1) to provide some & CORPORATION CALIFORNIA GROuP background as to why Defendant was confused by Plaintiffs counsel repeated assertion that ao LAW Plaintiff had a cause of action for Intentional Infliction of Emotional Distress (“IIED”); (2) to put FRANCISCO, PROFESSIONAL oO MILLER the Court and Plaintiff on notice of this recent revelation; and (3) to provide yet another N SAN A example of Plaintiffs counsel questionable conduct in the course of this litigation. [oe] © For these reasons, Kaiser seeks appropriate sanctions against Plaintiff's Oo counsel for failing to discharge her meet and confer obligations pursuant to this Court’s May = 3rd Order and Code of Civil Procedure sections 2016.040, 2023.010 (i), 2023.020. Kaiser NO also seeks sanctions for being forced to oppose this frivolous Motion pursuant to sections Ww 2023.010 (h), 2030.300 (d), 2031.320 (b), and 2033.290 (d). Kaiser also respectfully requests & this Court liftits suspension on previously imposed sanctions against Ms. Boyd due to her on continuing misuse of discovery in direct contravention of the Court's Amended Order Granting Oo In Part Defendant's Motion to Compe! issued on February 25, 2011 (“Court's Amended N Order”) and Code of Civil Procedure section 2023.010 (b), (c), (h), and (i). CO 2 DEFENDANT’S SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL AND IN SUPPORT OF ITS REQUEST FOR SANCTIONS - Case No. RG10495979 = WD . STATEMENT OF FACTS - On April 18, 2011, the day before Defendant’s Opposition to Plaintiff's Original Motion was due, Plaintiff's counsel, Marylon Boyd requested that the hearing on two aspects AB of the Original Motion (i.e., to Deem Admissions Admitted and to Compel Deposition) be A continued. (Declaration of Gregory F. Fortescue in Support of Defendant Kaiser Foundation | ODO Hospitals’ Supplemental Opposition to Plaintiffs Motion to Compel and in Support of its AN Request for Sanctions (“Fortescue Supp. Decl.”), J 2, Exh. 1.) The Court continued these , aspects of Plaintiffs Motion until July 12, 2011. Id. By the time Ms. Boyd made this request, O defense counsel had fully completed Defendant Kaiser’s Opposition to Plaintiff's Motion to CO a 3B Compel and in Support of Its Request for Sanctions (“Defendant's Original Opposition”), so a Defendant filed itas scheduled on April 19, 2011. (Fortescue Supp. Decl. J] 3.) That same a WH day, Plaintiff's counsel deposed Patty Gunderson. (Fortescue Supp. Decl. q 4.) The next Ba day, April 20, 2011, Ms. Boyd deposed Carlos Avila. /d. She closed his deposition on April . sw B CORPORATION CALIFORNIA Group 21,2011. Id. | | OG @ LAW ODO FRANCISCO, PROFESSIONAL Boa MILLER On May 3, 2011, this Court issued itsOrder on Plaintiff's Original Motion (“May ON SAN A 3rd Order”), ruling that Kaiser had not waived its objections to written discovery, and that ABA Plaintiffs counsel had failed to make a reasonable and good faith attempt to resolve oO B@ informally each issue presented in the Motion. (Fortescue. Supp. Decl. 4 5, Exh. 2.) The O NY Court ordered the parties to meet and confer by telephone or face-to-face in an attempt to = NY resolve these issues. /d. NYO NY NH fo The same day, Ms. Boyd called defense counsel Gregory Fortescue and HY requested that the deposition of Anne Dench, which she had noticed for May 10, 2011 and hw oa which was a subject of Plaintiffs Original Motion, be taken off calendar indefinitely. NM NM ont NM 3 DEFENDANT'S SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL AND INSUPPORT OF ITS REQUEST FOR SANCTIONS -Case No. RG10495979 > (Fortescue Supp. Decl. 7 6.)' Later that afternoon, Mr. Fortescue sent an email to Ms. Boyd and her co-counsel, Andrea Rosa, suggesting a date and time for a conference call to meet DPS and confer pursuant to Judge True’s order. (Fortescue Supp. Decl. 4 6, Exh. 3.) Mr. W}O Fortescue provided a listof anticipated discovery issues and requested that Plaintiff's counsel FF provide any additions or changes so time could be used most efficiently. /d. After Mr. oO Fortescue followed up again the next day via email, Ms. Boyd confirmed the appointment for OO the conference call and requested defense counsel host the call, which Mr. Fortescue agreed ON to do. (Fortescue Supp. Decl. §| 7, Exh. 4.) Ms. Boyd also promised to provide a list of topics that Plaintiffs counsel wished to cover on the call by close of business on Monday, May 9, | Oo 2011. /d. Instead, Ms. Boyd sent the list less than three hours before the scheduled call on oo = May 10th. (Fortescue Supp. Decl. | 9, Exh. 5.) The conference call between parties’ counsel => =v proceeded as scheduled, lasting a littleover one hour. (Fortescue Supp. Decl. {] 10.) The —_ No topics covered were limited to those which Ms. Boyd had raised in her email earlier in the day Ow and were subject to Plaintiff's Original Motion. /d. =0C £ CORPORATION CALIFORNIA Group —_— on Law After not hearing anything further from Plaintiffs counsel for over one week after FRANCISCO, PROFESSIONAL oO — MILLER the conference call, Mr. Fortescue sent a nine-page letter on May 19, 2011 to Ms. Boyd, — N SAN A copying Ms. Rosa, in which he outlined in detail the issues covered during the call and the [ee) = parties’ respective positions on each.” (Fortescue Supp. Decl. J 11, Exh. 6.) In an effort to = © address one outstanding issue pertaining to the possible disclosure of two. reports that NO © Defendant contends are protected by attorney-client privilege (but which both parties wish to aaa NO have disclosed), Mr. Fortescue enclosed a draft Stipulation and Protective Order Regarding RO NO NO wo NO A ' Defendant’s counsel already had confirmed with Ms. Boyd that Ms. Dench’s deposition RO o would go forward as noted. RO Oo 2 In the opening sentence of this letter, defense counsel erroneously referred to the call as N nN taking place on May 12, 2011, when itin fact was on May 10, 2011. (Fortescue Supp. Decl. fJ 11, n. 1, Exh. 6.) NO © 4 ; DEFENDANT’S SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL AND INSUPPORT OF ITS REQUEST FOR SANCTIONS - Case No. RG10495979 —_ Limited Privilege Waiver for review by Plaintiff's counsel.° (Fortescue Supp. Decl. ¥] 11, Exhs. 6-7.) Plaintiff's counsel never responded to this letter prior to filing the Supplemental DN Motion.’ Id. WO FF In an attempt to address another issue raised by Plaintiffs counsel during the oO May 10th conference call, Mr. Fortescue sent a letter on June 6, 2011 to Plaintiff's counsel in OO which he enclosed copies of meeting minutes from the Peer Group that oversees the NN Biomedical Engineering Training (“BET”) program which Plaintiff participated in from February Oo 2005 to September 2007. (Fortescue Supp. Decl. § 12, Exh. 8.) As detailed in Mr. Oo Co Fortescue’s May 19th letter to Plaintiff's counsel, all other documents related to Plaintiff's participation in this BET program and regarding the BET program itself were included its original document production served on January 24, 2011. (See Fortescue Supp. Decl. J 11, Exh. 6, pp. 4-5.) Once again, Plaintiffs counsel! never responded in any manner to the June 6th letter. (Fortescue Supp. Decl. J 12.) CORPORATION CALIFORNIA Group Law In fact, since the May 10th conference call, Plaintiff's counsel made no attempt FRANCISCO, PROFESSIONAL MILLER to contact defense counsel for any reason until the day that Plaintiffs Supplemental Motion SAN A papers were due. (Fortescue Supp. Decl. J 13.) On June 27, 2011, Ms. Boyd left a voicemail message for Mr. Fortescue requesting that he call her to discuss “a couple of questions regarding discovery” because she understood from the Court’s order she “needed to file * Defendant had initially proposed that the parties enter into this type of stipulation as part of its original responses to Plaintiffs Request for Production of Documents, Set One, but Plaintiffs counsel never responded prior to filing this Motion. (See Declaration of Gregory F. Fortescue in Support of Defendant’s Opposition to Plaintiff's Motion to Compel and in Support of Its Request for Sanctions (“Fortescue Orig. Decl.”), at | 22, Exh. 22 (Defendant’s responses to document requests numbers 12 and 13).) © 4 The first defense counsel learned that Plaintiff was willing to stipulate to the Protective Order was when a signed copy appeared as an exhibit to Ms. Boyd’s Declaration in Support of Plaintiff's Supplemental Motion to Compel Further Discovery Responses. (Fortescue Supp. Decl. J 15.) . 5 DEFENDANT’S SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL AND INSUPPORT OF ITS REQUEST FOR SANCTIONS -Case No. RG10495979 something today” ifshe wished to “continue with her Motion to Compel.” (Fortescue Supp. —_ Decl. | 14.) Mr. Fortescue returned her call later that.afternoon but was unable to reach her. RO Id. Ww ; A lll. ARGUMENT an Oo? A. Plaintiff Offers No Principled Reason to Continue This Motion Hearing. N [oe] | Plaintiff has requested that this Court continue the hearing on her Motion for oO another sixty (60) days so she can “be allowed to further supplement the motions should oO — sufficient resolution not be completed within 60 days.” In effect, Plaintiff is requesting that the = = Court be placed on something akin to a continuous retainer so she can raise various NO = discovery issues as they arise in the course of litigation. There is no authority whatsoever for — w this proposition. Furthermore, if:Plaintiff's. counsel contends that the parties have failed to aS — CORPORATION CALIFORNIA Group reach sufficient resolution to the issues raised in Plaintiff's Original Motion over the past sixty on Law days, that can only be attributed to her woefully insufficient efforts to meet and confer. FRANCISCO, (o>) PROFESSIONAL => MILLER Neither this Court nor Defendant should be made to wait while Plaintiff's counsel struggles to ~™ a SAN A determine exactly why she brought this Motion on behalf of her client in the first place. co — Defendant respectfully requests that this Court deny Plaintiffs request for an additional 60- oO = day continuance and that.the hearing on this Motion go forward as scheduled on July 12, |.- ro) No 2011. RO = bho NO B. The Motion to Compel Depositions Is Now Moot and Plaintiff's Persistence in wo NO Seeking an Order to Compel These Depositions is Worthy of Sanctions. NO & A party or party-affiliated witness is obligated to attend and testify at a NO oO deposition after being properly and timely.served with a deposition notice indicating the date, NO oO ~“N NO oO N 6 DEFENDANT’S SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL AND INSUPPORT OF ITS REQUEST FOR SANCTIONS - Case No. RG10495979 ® | @ time, and place of deposition. Code Civ. Proc. §§ 2025.220(a)(1), (2), 2025.280.° A person —_ formerly affiliated with a party (e.g., a former employee of a corporate party) is not required to attend a deposition unless she is served with a subpoena. Maldonado v. Superior Court (ICG Telecom Group, Inc.) (2002) 94 Cal.App.4th 1390, 1398. No person may be deposed more ; than once without a court order based on a showing of good cause. § 2025.610 (a); Fairmont Ins. Co. v. Superior Court (Stendell) (2000) 22 Cal.4th 245, 254. When Plaintiff originally filed this Motion, she was seeking, among other things, to compel the appearances of Defendant Ron Navarra, Carlos Avila, Anne Dench and Patty Gunderson for deposition. As was stated in Defendant’s Original Opposition, Plaintiff had = noticed these depositions only three days before filing the Original Motion to compel them. = (Fortescue Orig. Decl. [J 32, 33, 34 Exh. 32, 33. 34.) Defendant Navarra’s deposition was = completed on April 5 and 6, 2011. (Fortescue Orig. Decl. 7 37.) The deposition of Ms. — Gunderson, a former employee of Defendant who voluntarily chose to appear, was completed — CORPORATION CALIFORNIA Group on April 19, 2011. (Fortescue Supp. Decl. 4] 4.) Mr. Avila’s deposition was completed on April — Law 20 and 21, 2011. ld. Thus, the portion of this Motion seeking to compel these depositions is FRANCISCO, PROFESSIONAL — MILLER now moot. In Plaintiff's Supplemental Motion, she raises for the firsttime the issue of whether — SAN A Plaintiff has good cause to obtain a court order to reopen the depositions of Defendant — Navarra and Ms. Gunderson, but this is not an issue properly before this Court. Furthermore, — Plaintiffs counsel has not made a single attempt to meet and confer with defense counsel NO regarding this issue. (Fortescue Supp. Decl. J 13.) Thus, this argument is premature and RO should be completely disregarded. NO No With regard to the deposition of Anne Dench, Defendant was prepared to NO ‘produce Ms. Dench on May 10, 2011 as noticed, but Plaintiffs counsel informed Defendant ine) she wanted it taken off calendar for some unknown reason. (Fortescue Supp. Decl. J 6.) NO No ° All subsequent statutory referen