Angela Wergechik vs. Anaheim Arena Management, LLC

Opposition

Cal. Super. - 4th Dist.May 7, 2015

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WORKPLACE JUSTICE ADVOCATES, PLC Tamara S. Freeze, California Bar No. 239037 tf@workplacejustice.com Robert A. Odell, California Bar No. 286488 ro@workplacejustice.com 9891 Irvine Center Drive, Suite 200 Irvine, California 92618 Telephone: (949) 378-9794 Fax: (949) 266-9388 Attorneys for Plaintiff ANGELA WERGECHIK ELECTRONICALLY FILED Superior Court of California, County of Orange OTA27201MT at 05:32:00 PM Clerk of the Superior Court By & Clerk, Deputy Clerk SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF ORANGE — UNLIMITED CIVIL ANGELA WERGECHIK, an individual, Plaintiff, VS. ANAHEIM ARENA MANAGEMENT, LLC, a California Limited Liability Company (dba “HONDA CENTER”), ANAHEIM DUCKS HOCKEY CLUB, LLC, a California Limited Liability Company, and DOES 1 through 50, inclusive, Defendants. -1- CASE No.: 30-2015-00786670-CU-WT-CJC Assigned to: Hon. Derek W. Hunt Dept.: C23 PLAINTIFF ANGELA WERGECHIK’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT ANAHEIM ARENA MANAGEMENT, LLC’S MOTION TO COMPEL HER FIFTH DAY OF DEPOSITION [Filed concurrently with Declaration Tamara S. Freeze; Separate Statement] Hearing Date: July 25, 2017 Time: 8:30 a.m. Place: Department C-23 Complaint Filed: May 7, 2015 Trial Date: September 26. 2016 PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION TO COMPEL W O R K P L A C E J U S T I C E A D V O C A T E S P R O F E S I O N A L L A W C O R P O R A T I O N 9 8 9 1 I R V I N E C E N T E R D R I V E - S U I T E 2 0 0 (9 49 ) 3 7 8 - 9 7 9 4 IR VI NE , C A 9 2 6 1 8 « 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS I. SUMMARY OF ARGUMENT ......ooiiiitiitiititieeet etcetera esse eae sate seen ania en 1 II. STATEMENT OF FACTS oie sate sates sees sate seen enna 2 A. Defendants Conduct Four (4) Separate Days of Plaintift’s Deposition, Which Ended Over a Year and @ Half AZO ..ooouieiieiiieieee cee eee eects steers shasta eres ee era ee 2 B. Defendants Complete Plaintiff’s Fourth Day of Deposition on January 26, 2016 and Decline to Continue Any Further When Asked ..........coouiiiiiiiiiiie eee eee 2 C. Discovery Closes on JUN 6, 2010 ..........ccoeviieriieeieeiienieeriie eis etter este ee enie estes sse e as ease anes 3 D. A Year Later, Defendants Notice a Fifth Day of Deposition ............cccccvvevvienieeiieenienniienniens 3 E. Defendants Move to Compel Further Deposition of Witness Vogelgesang After a Similar 12- Month Hiatus, Which This Court DENIed..........ccooiiiiiiiiiiiiiiiii eects eee eee eee aeae ease ee eas 3 III. DEFENDANT’S MOTION MUST BE DENIED AS THERE IS NO GOOD CAUSE TO RE- OPEN DISCOVERY AND/OR VIOLATE THE ONE DEPOSITION RULE .......c.ccccovviiiniienne. 4 A. Defendant Presents No Good Cause to Defeat the One Deposition Rule After Eighteen (18) Months Have PaSSEd..........cciiiiiiiiiiiiiiicce cece eee steer see 4 B. Parties Specifically Arranged for Plaintiff Continued Deposition Over a Year Ago and Defendant REfUSEd..........ooiouiiiiiiiiiiiicc cesses eee eee 5 IV. CONCLUSION Loita eases ee ste sheet eases se eae sees 6 -1 - PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION TO COMPEL W O R K P L A C E J U S T I C E A D V O C A T E S P R O F E S I O N A L L A W C O R P O R A T I O N 9 8 9 1 I R V I N E C E N T E R D R I V E - S U I T E 2 0 0 (9 49 ) 3 7 8 - 9 7 9 4 IR VI NE , C A 9 2 6 1 8 « 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. SUMMARY OF ARGUMENT Defendant ANAHEIM ARENA MANAGEMENT (“AAM” or “Defendant”) is not entitled to a fifth day of Plaintiffs deposition now that (1) discovery has closed and (2) that AAM concluded Plaintiff’s fourth day of Deposition (over eighteen months ago) and declined to continue her deposition, which had been previously arranged and noticed by Defendants. Despite having four (4) depositions of Plaintiff with multiple attorneys, AAM now attempts to re- Plaintiff’s deposition after the discovery cutoff for a completely unknown reason other than the naked assertion that AAM did not officially “close” her deposition almost a year and a half ago on January 26, 2016. During meet and confer, AAM provided zero explanation as to how it did not complete Plaintiff’s questioning or what facts or topics were left untouched after four days of deposition nor why AAM waited over a year to “continue” said deposition after the discovery deadline had passed. In its motion, Defendant finally commits to three (vague) reasons, all of which fall short of good cause required to re-open Plaintiff’s deposition. After conducting additional discovery, AAM simply seeks to have a second bite at the apple by conducting a fifth (5!) day of Plaintiff’s deposition in violation of California’s one deposition rule (and in an already overblown and over-litigated case). As such, no good cause exists to re-open discovery because (1) AAM fails to articulate any and (2) any questions AAM failed to ask Plaintiff in her previous four days of deposition were of its own choice and design, as AAM never sought any further testimony from Plaintiff for the remainder of litigation spanning over a year. Finally, Defendant’s self-serving laundry list of “other” purported discovery abuses by Plaintiff are neither accurate nor relevant to the instant motion. Rather, the inclusion of these unrelated complaints are quite telling of AAM’s lack of good cause supporting this issue, which concerns only Plaintiff’s fifth day of deposition. -1- PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION TO COMPEL W O R K P L A C E J U S T I C E A D V O C A T E S P R O F E S I O N A L L A W C O R P O R A T I O N 9 8 9 1 I R V I N E C E N T E R D R I V E - S U I T E 2 0 0 (9 49 ) 3 7 8 - 9 7 9 4 IR VI NE , C A 9 2 6 1 8 « 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. STATEMENT OF FACTS A. Defendants Conduct Four (4) Separate Days of Plaintiff’s Deposition, Which Ended Over a Year and a Half Ago Defendants have taken Plaintiff’s deposition on four separate days throughout the litigation of this case. (Freeze Decl., § 2). Plaintiff was deposed on October 28, 2015 for approximately 2.5 hours, on January 6, 2016 for approximately 5 hours, on January 7, 2016 for approximately 5 hours, and on January 26, 2016 for approximately 5.5 hours. (Freeze Decl., § 2). Thus, the record spans over 18 hours, which includes 71 deposition exhibits and over 614 pages of transcript. (/d.) On January 13, 2016, Defendants sent an email to Plaintiff’s counsel and confirmed January 25, 2016 for Plaintiff’s 4th day of deposition and confirmed January 26 as Plaintiff’s possible 5th day of deposition, if necessary. (See Exhibit A attached to Freeze Decl. q 3). On January 15, 2016, Defendants formally noticed Plaintiff’s deposition for January 25 & 26, 2016. (See Exhibit B attached to Freeze Decl. q 4). On January 19, 2016, Defendants requested (and Plaintiff agreed) to reschedule Plaintiff’s deposition for January 26 and January 28, 2016. (See Exhibit C attached to Freeze Decl. § 5). B. Defendants Complete Plaintiff’s Fourth Day of Deposition on January 26, 2016 and Decline to Continue Any Further When Asked After completing Plaintiff’s fourth day of deposition on January 26, 2016, Defendants emailed Plaintiff’s counsel the next morning and cancelled Plaintiff’s previously-scheduled deposition set for January 28. 2016. (See Exhibit D, attached to Freeze Decl. 4 6). That same day, Plaintiff’s counsel emailed Defendant and asked for alternative dates for Plaintiff’s fifth day of deposition. (Freeze Decl. § 7). Defendants never responded to the request, nor did they discuss or even mention any need for Plaintiffs continued deposition before discovery closed on June 6, 2016. (Id.). -2- PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION TO COMPEL W O R K P L A C E J U S T I C E A D V O C A T E S P R O F E S I O N A L L A W C O R P O R A T I O N 9 8 9 1 I R V I N E C E N T E R D R I V E - S U I T E 2 0 0 (9 49 ) 3 7 8 - 9 7 9 4 IR VI NE , C A 9 2 6 1 8 « 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. Discovery Closes on June 6, 2016 The Court set a discovery cutoff date in this case as June 6, 2016. Defendants fiercely defended this discovery cutoff date and used it to their advantage, barring additional discovery by Plaintiff. (Freeze Decl. q 8). While parties later entered into stipulation that the expert discovery cutoff is continued as well as discovery motion dates, Parties never agreed to extend the discovery cutoff to Plaintiff’s deposition. (Freeze Decl. § 9). None of the stipulations presented as exhibits in Defendant’s motion operate as a continuance of Plaintiff’s deposition, which was never mentioned or discussed. (/d.) D. A Year Later, Defendants Notice a Fifth Day of Deposition Parties litigated the matter for over a year without any indication that Defendant needed to depose Plaintiff again. Defendants then served a notice of deposition for Plaintiff, setting a fifth day of deposition for March 15 2017. (Freeze Decl., 9 10). Plaintiff’s counsel immediately objected to the notice on the grounds that Plaintiff’s deposition was already concluded and a party was only entitled to take one deposition. (see Exhibit E, attached to Freeze Decl. 10). On March 8, 2017, Plaintiff’s counsel also sent a meet and confer letter, explaining why Defendants were not entitled to take another deposition of Plaintiff more than a year later. (see Exhibit F, attached to Freeze Decl. 11). Defendants, however, never explained the “good cause” for such significant delay or what topics they inexplicably failed to cover a year earlier. (Freeze Decl. § 12). Counsels met and conferred over the phone and Ms. Freeze asked defense counsel, Mr. Escalante, whether he had any cases allowing depositions to proceed where the significant amount of time has passed between the first day and the second day of deposition. (/d.) Mr. Escalante admitted that he was not aware of such cases. Unable to reach a resolution, Defendants filed this motion to compel. (/d.) E. Defendants Move to Compel Further Deposition of Witness Vogelgesang After a Similar 12-Month Hiatus, Which This Court Denied Defendants attempted this exact same procedure with third party witness, Paul Vogelgesang -3- PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION TO COMPEL W O R K P L A C E J U S T I C E A D V O C A T E S P R O F E S I O N A L L A W C O R P O R A T I O N 9 8 9 1 I R V I N E C E N T E R D R I V E - S U I T E 2 0 0 (9 49 ) 3 7 8 - 9 7 9 4 IR VI NE , C A 9 2 6 1 8 « 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 — noticing his second day of deposition after over a year had passed. (Freeze Decl. 4 13). After the same meet and confer efforts, Defendants filed a motion to compel Mr. Vogelgesang’s deposition on the exact same grounds, which was denied by this Court on July 11, 2017. (see Exhibit G attached to Freeze Decl. § 13). III. DEFENDANT’S MOTION MUST BE DENIED AS THERE IS NO GOOD CAUSE TO RE-OPEN DISCOVERY AND/OR VIOLATE THE ONE DEPOSITION RULE A. Defendant Presents No Good Cause to Defeat the One Deposition Rule After Eighteen (18) Months Have Passed In California, absent a court order providing otherwise (and upon a showing of good cause), a party is limited to taking only one single deposition of any natural person — also known as the “one deposition rule.” See Code of Civil Procedure § 2025.610(a)-(b); Fairmont Ins. Co. v. Superior Court (Stendell) (2000) 22 Cal.4th 245, 254 (Once any party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has been served with a deposition notice pursuant to Section 2025.240 may take a subsequent deposition of that deponent). In this case, Plaintiff has already sat through FOUR days of deposition, ending eighteen months ago on January 26, 2016, where Defendant had a full and fair opportunity to ask Plaintiff to provide any information it needed, which she did. The deposition was closed and Defendants unilaterally cancelled the continued deposition scheduled for the next day. After that, there was zero indication that the deposition would be continued as an entire year passed by and discovery closed. Nor had Defendant communicated to Plaintiff at any time after January 26, 2016 that they needed another day of deposition until over year later. As such, Defendant’s effort to take another (fifth) deposition of Plaintiff (almost two years after her deposition closed) is not authorized by the statute, as there is no good cause. In its motion, AAM still fails to articulate good cause to re-open Plaintiff’s deposition a year -4 - PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION TO COMPEL W O R K P L A C E J U S T I C E A D V O C A T E S P R O F E S I O N A L L A W C O R P O R A T I O N 9 8 9 1 I R V I N E C E N T E R D R I V E - S U I T E 2 0 0 (9 49 ) 3 7 8 - 9 7 9 4 IR VI NE , C A 9 2 6 1 8 « 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and a half later other than generally and vaguely asserting that “much has transpired” in the 17 months since her last deposition. To support this, Defendant vaguely references “hundreds of pages of new documents” that have been produced by Plaintiff, yet fails to reference or articulate what those documents are or, more importantly, sow any of them create a new issue such that Defendant will be prejudiced if a further deposition is not taken. Further, Defendant also cites that Plaintiff “filed a Second Amended Complaint.” This also fails to generate any semblance of good cause to re-open Plaintiff’s deposition as none of the amendments change any facts or allegations of the case that Defendant was not aware of (and Defendant again fails or refuses to articulate how). Finally, Defendant cites the fact that Plaintiff’s medical records have been produced by her treating physicians. This, however, is only relevant to Defendant’s expert depositions of those same physicians, which have already been conducted and concluded by Defendant. In fact, after obtaining these medical records, Defendant took depositions of all four treating physicians and went over these records extensively with each. These records, by their very nature, were not drafted by Plaintiff, have never been seen by Plaintiff and were not produced by her, let alone produced by her after her last deposition in January 2016. In any case, Defendant has already had four separate opportunities to cover these documents (and technically five opportunities if we count the January 28, 2016 deposition date that Defendant unilaterally cancelled and never followed-up on). Production of medical records by third party medical providers does not operate as good cause for Defendant to reopen Plaintiff’s deposition, as Defendant is in full control of its own document subpoenas to these providers and the timing for which these documents were procured. B. Parties Specifically Arranged for Plaintiff Continued Deposition Over a Year Ago and Defendant Refused Additionally, as mentioned above, Parties specifically arranged Plaintiff’s continued deposition for January 28, 2016. Despite Defendant specifically agreeing to this date in a previous -5- PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION TO COMPEL W O R K P L A C E J U S T I C E A D V O C A T E S P R O F E S I O N A L L A W C O R P O R A T I O N 9 8 9 1 I R V I N E C E N T E R D R I V E - S U I T E 2 0 0 (9 49 ) 3 7 8 - 9 7 9 4 IR VI NE , C A 9 2 6 1 8 « 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 email and confirming with its deposition notice, Defendant refused to continue the deposition any further. Defendant never followed up after the conclusion of Plaintiff’s fourth day of deposition on January 26, 2016 regarding a continued date until more than a year later (after the initial discovery cutoff of June 2016 had passed). (Freeze Decl. § 7, 9 & 10). Even then, Defendant had never indicated during that time that it wished to continue Plaintiff’s deposition. IV. CONCLUSION For the foregoing reasons outlined above, Plaintiff requests that the Court Deny Defendant’s Motion. Dated: July 12,2017 WORKPLACE JUSTICE ADVOCATES, PLC N /) Tamara S. Freeze / / Robert A. Odell Attorneys for Plaintiff ANGELA WERGECHIK -6- PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION TO COMPEL W O R K P L A C E J U S T I C E A D V O C A T E S P R O F E S I O N A L L A W C O R P O R A T I O N 9 8 9 1 I R V I N E C E N T E R D R I V E - S U I T E 2 0 0 (9 49 ) 3 7 8 - 9 7 9 4 IR VI NE , C A 9 2 6 1 8 « 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE (Gov. Code § 12963(b)) I reside and work in the County of Orange, State of California. I am over the age of 18 and not a party to the action. My address is 9891 Irvine Center Drive, Suite 200, Irvine, CA, 92618. On July 12, 2017, I served the foregoing documents, described as: PLAINTIFF ANGELA WERGECHIK’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT ANAHEIM ARENA MANAGEMENT, LLC’S MOTION TO COMPEL HER FIFTH DAY OF DEPOSITION PLAINTIFF ANGELA WERGECHIK’S SEPARATE STATEMENT IN OPPOSITION TO DEFENDANT ANAHEIM ARENA MANAGEMENT, LLC’S MOTION TO COMPEL HER FIFTH DAY OF DEPOSITION DECLARATION OF TAMARA FREEZE IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANT ANAHEIM ARENA MANAGEMENT, LLC’S MOTION TO COMPEL HER FIFTH DAY OF DEPOSITION on each interested party in this action, as follows: Jason Weiss/Ruben Escalante Sheppard Mullin Richter & Hampton LLP JWeiss@sheppardmullin.com REscalante@sheppardmullin.com x (BY ELECTRONIC SERVICE) I caused such papers to be delivered to the Defendants at the above email addresses. Executed on July 12, 2017, at Irvine, California. I declare under penalty of perjury, under the laws of the State of California, that the foregoing is true and correct. -1- PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION TO COMPEL Ji Tamara Freeze PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION TO COMPEL _0- 0 0 vi ow o v e o o § OD 89 2 FI 2 2 8B ¥F 2 g 8 9 3 8 8 8 8 § 87 7 6 , 6 - 8 L E (676) + 8 1 9 2 6 V D A N I A Y I 0 0 c A 1 I N S - A I H A d 3 1 N 3 D INIAYGI 1 686 N O L L Y H O J H O D M Y 1 T Y N O I S I 4 0 8 d S H L V O O A A Y A D I L S N C A D V 1 d M H O M