Vida Batmanghelidj vs. Malco Maintenance Inc.Motion to Compel ProductionInspection of Documents or ThingsCal. Super. - 4th Dist.January 12, 2016AN Un W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MARLIN & SALTZMAN, LLP Stanley D. Saltzman, Esq. (SBN 090058) William A. Baird, Esq. (SBN 192675) 29229 Canwood Street, Suite 208 Agoura Hills, California 91301 Telephone: (818) 991-8080 Facsimile: (818) 991-8081 ssaltzman @marlinsaltzman.com tbaird @marlinsaltzman.com Attorneys for Plaintiff ELECTRONICALLY FILED Superior Court of California, County of Orange 03/03/2017 at 04:08:00 PM Clerk of the Superior Court By Enrique “weloz, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE VIDA BATMANGHELIDJ, as an individual, Plaintiff, v. MALCO MAINTENANCE INC., a corporation; LUIS ANGEL FLORES VASQUEZ, an individual; and DOES 1 through 25, inclusive, Defendants. CASE NO.: 30-2016-00829657-CU-PA-CJC (Assigned to Hon. Frederick P. Horn) NOTICE OF MOTION AND MOTION TO COMPEL DOCUMENTS IN RESPONSE TO DEPOSITION NOTICE [Filed Concurrently with Plaintiff’s Separate Statement; Declaration of William A. Baird; Proposed Order] DATE: Mackh@0, 201% 04122017 TIME: 1:30 p.m. DEPT: C-31 Complaint Filed: January 12, 2016 1 Plaintiff’s Notice of Motion and Motion to Compel Documents in Response to Depo Notice EV 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO: ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that artis 2017 at 1:30 p.m. in Department C-31 of the above-entitled Court, Plaintiff Vida Batmanghelidj (“Plaintiff”) will and hereby does move to compel Defendant to produce documents that were requested at its deposition. Plaintiff brings this motion pursuant to California Code of Civil Procedure section 2025.450(b) on the grounds that Defendant has failed and refused to produce the requested relevant documents, even though Defendant agreed to produce the documents within 7 days of the conclusion of the deposition. Accordingly, an order to compel production is necessary. Although Plaintiff, in good faith, attempted to avoid this motion by requesting that Defendant produce the promised documents, Defendant waited until February 23 - almost 30 days after it agreed to do so - to inform Plaintiff that it actually did not have the promised responsive documents. This is no accident, but rather, a calculated attempt to run out the clock on Plaintiff with trial set to begin May 15, 2017. Accordingly, Plaintiff respectfully requests for her motion to be granted. This motion is based on this notice, the Memorandum of Points and Authorities, the Declaration of William A. Baird, the Separate Statement, all the pleadings and papers on file in this matter, and all oral and documentary evidence that the Court may consider at the hearing. Respectfully submitted, DATED: March 3, 2017 MARLIN & SALTZMAN, LLP ee recom ia y Stanley,D. Saltzman, Esq. William A. Baird, Esq. Attorneys for Plaintiff 2 Plaintiff’s Notice of Motion and Motion to Compel Documents EV AN Un W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I INTRODUCTION/BACKGROUND On January 17, 2017, Plaintiff took the deposition of Defendant’s Person Most Knowledgeable (“PMK”) regarding the accident that is the subject of this action. During the deposition, Defendant’s PMK agreed to produce several documents within 7 days of the conclusion of the deposition that were responsive to document requests in the deposition notice. (Malone Depo: p.68:6-20). This included Defendant’s internal report about the incident (Malone Depo: p.22: 4-6, 59:13-25); the employment files for the employees involved in the incident (Malone Depo: p.60:15-22); Defendant’s employment manual (Malone Depo: p.63:2-10); the results of the drug test of the employees after the incident (Malone Depo: p.66:10-25, 67:1-13); and the last known contact information for the employees (Malone Depo: p.69:7-15). Prior to agreeing to the production, the PMK admitted that he did not bring any documents to the deposition because he did not search for any responsive documents prior to it. (Malone Depo: p. 57: 17-21). (Declaration of William A. Baird, “Baird Decl." | 3-4)(Relevant pages of the Malone deposition are attached as Exhibit “37). Defendant did not produce the promised documents by January 24, 2017, and did not provide an update about the documents. (Baird Decl. | 6). Believing that the parties intended to focus their efforts on attending mediation in good faith on February 17, 2017, Plaintiff refrained from filing a motion with respect to the promised documents and granted Defendant’s request for an extension to respond to Plaintiff's Requests for Admission and Form Interrogatories until after the mediation. (Baird Decl. { 6). The mediation was not successful. In turn, on February 17, 2017, Plaintiff requested that Defendant promptly produce the promised documents. (Baird Decl. {7). Shockingly, on approximately February 23, 2017, Defendant informed Plaintiff that it did not have the promised documents. (Baird Decl. { 8). When counsel asked how that could be the case, especially when Defendant is required by California law to keep at least the employee files, defense counsel requested for Plaintiff to send a list of what Plaintiff believed was promised and offered to further "Notably, although Plaintiff had noticed the deposition of the employees previously, it was not until approximately December 2016 that Defendant stated that it would not produce the employees for deposition because it did not know their whereabouts. Thereafter, Plaintiff immediately noticed Defendant’s PMK deposition. (Baird Decl. {4 Fn 1). 3 Plaintiff’s Notice of Motion and Motion to Compel Documents in Response to Depo Notice AN Un W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 discuss the issue with Defendant. (Baird Decl. {8). Plaintiff’s counsel responded that it was clear that Defendant was hiding something and did not want the employees deposed or documents about them reviewed. (Baird Decl. { 8). For this reason, and because of the current trial date, Plaintiff explained that Plaintiff had no choice but to file a motion to compel. (Baird Decl. 8). Unfortunately, Defendant’s litigation tactics have been over the top, given that the incident on April 24, 2015, that gave rise to this action, occurred because two of Defendant’s employees smashed a street sweeping truck into the rear of Plaintiff’s car. The impact from the crash was such that it totaled Plaintiff’s car, as well as the street sweeping truck, and inflicted injuries on Plaintiff - a single mother. That said, rather than engage in a good faith attempt to resolve this action, Defendant has waged an all out campaign to punish Plaintiff for filing the case. Indeed, Defendant has served over 65 subpoenas, including a subpoena to Plaintiff’s Gynecologist even though Plaintiff has never claimed injuries remotely related to something a Gynecologist would deal with (Plaintiff alleges injuries to her arm, hand, fingers, shoulder, back and head) and an overly broad subpoena to her employer. (Baird Decl. {{ 9-10). Defendant did not agree to withdraw the subpoenas until Plaintiff was about to file motions to quash. (Baird Decl. | 10). What's more, Defendant refused to produce relevant discovery, and now, as trial approaches, claims not to have relevant and important information that only weeks ago it said it had. Further, to the extent Plaintiff has any documents from Defendant, Defendant only produced them after Plaintiff threatened to file a motion to compel. (Baird Decl. 11). Unfortunately, at this point, Defendant’s actions appear to be part of a calculated strategy to run out the clock. Defendant’s tactics are improper and no advantages should be gained from them. Accordingly, Plaintiff respectfully requests for the Court to order Defendant to produce the requested and promised documents. IL. MALCO CANNOT JUSTIFY ITS OBJECTIONS As set forth in Plaintiff’s Separate Statement, MALCO originally attempted to avoid producing documents responsive to Plaintiff’s requests either by uniformly asserting that they are irrelevant and invade privacy rights, or by selectively producing documents. Irrespective of these 4 Plaintiff’s Notice of Motion and Motion to Compel Documents in Response to Depo Notice AN Un W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 pbjections, the PMK for MALCO agreed to produce the requested documents and thus, the objections are of no consequence. Indeed, by the witness agreeing to produce the documents, Defendant’s asserted objections are deemed withdrawn and the parties discovery agreement controls - e.g., whereby plaintiff agreed to accept the documents after (rather than at) the deposition, and defendant agreed to produce them within seven days after the deposition. (See Code Civ. Pro. § 2016.030 (“...the parties may by written stipulation modify the procedures provided by this title for any method of discovery ...”)(emphasis added). Accordingly, MALCO cannot meet its burden of proving the validity of its objections and further responses and documents should be produced. Columbia Broadcasting System, Inc. v. Superior Court, 263 Cal. App. 2d. 12, 18 (1968) (The party opposing a motion to compel has the burden of proving the validity of its objections). III. GOOD CAUSE EXISTS FOR PRODUCTION OF ALL DOCUMENTS RESPONSIVE TO PLAINTIFF’S REQUESTS If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230 ... fails ... to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. (Code Civ. Pro. § 2025.410(a).) Defendant Malco agreed to produce documents in response to Requests Nos. 1-3, 6, 8-9, 11, 14-16. Defendant testified as follows with respect to these requests. No. 1 (All Documents Concerning the Incident) The PMK testified that there was an internal incident report as to the incident that gave rise to this action. Prior to the deposition, Defendant did not reveal the existence of the report, nor produce one. Defendant agreed to produce the report. (Baird Decl. {5). Nos. 2 and 3 (Employment Files For the Employees Driving the Truck) The PMK testified that Defendant would produce the employee files for the employees involved in the incident, as well as their last known contact information. Prior to the deposition, 5 Plaintiff’s Notice of Motion and Motion to Compel Documents in Response to Depo Notice AN Un W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defense counsel served objections refusing to produce the documents. (Baird Decl. 5). No. 6 (Correspondence Regarding the Incident) The PMK testified that he could not verify if Defendant’s statement in its objections to Plaintiff’s deposition notice was correct that no responsive documents existed. Thus, he agreed to search for and produce any responsive documents. (Baird Decl. 5). No. 8-9 (Training and Educational Materials Provided to the Employees that Drove the Truck) The PMK testified that he would produce the responsive documents which included at least an employment manual. (Baird Decl. 5). No. 11 (Maintenance Records For The Truck Involved in The Incident) The PMK testified that he could not verify if Defendant’s statement in its objections to Plaintiff’s deposition notice was correct that no responsive documents existed. Thus, he agreed to search for and produce any responsive documents. (Baird Decl. { 5). No. 14 -15 (Driver’s Personal and Qualification Files for the Employees in Truck) The PMK testified that all responsive documents would be in the employment files of these employees which he agreed to produce. Prior to the deposition Defense counsel served objections refusing to produce the documents. (Baird Decl. 5). No. 16 (Drug Testing Results for Employees) The PMK testified that pursuant to company policy, any driver in an accident is required to be drug tested. Thus, he agreed to produce the results of any tests that the employees involved in the underlying incident had taken. Prior to the deposition, Defense counsel served objections refusing to produce the documents. (Baird Decl. 5). No. 17 (Driver's Record Information) The PMK testified that all responsive documents would be in the employment files of these employees which he agreed to produce. Prior to the deposition Defense counsel served objections refusing to produce the documents. (Baird Decl. 5). After committing to produce the documents, Defendant cannot turn around and say that it will not produce them or that Defendant cannot find them or that it needs to look again. This is 6 Plaintiff’s Notice of Motion and Motion to Compel Documents in Response to Depo Notice particularly true with respect to the employment records materials (Request Nos: 2, 3, 8-9, and 14- 17). Indeed, Defendant is required under the Fair Labor Standards Act, the California Labor code, and applicable IWC wage order to maintain the employment records of its employees at least two years and under certain statutes up to three. See e.g., Labor Code sections 226, 1174, 1197.5, 1198.5 (required to keep personal files at least 3 years), IWC wage Order No. 7. Thus, either Defendant has the documents and is hiding them, or Defendant has outright violated several statutes by not keeping them. In any event, Plaintiff needs answers to these questions and enough time to obtain and process the information. Accordingly, Plaintiff requests that Defendant be ordered to promptly produce the documents. IV. PLAINTIFF _MADE A GOOD FAITH ATTEMPT TO RESOLVE THIS DISPUTE INFORMALLY California Code of Civil Procedure section 2016.040 requires the moving party to make “a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” The Declaration of William A. Baird evidences Plaintiff's good faith attempt to resolve the disputed issues before filing this Motion. Vv. CONCLUSION Plaintiff respectfully requests that the Court order Defendant to immediately produce the documents it promised to produce. The requests seek relevant and essential information. Defendant should not be allowed to hide documents that it is required to maintain. Accordingly, Plaintiff respectfully requests that this Court order Defendant to provide responsive documents and further written responses to each of the requests mentioned herein. DATED: March 3, 2017 aR a SALTZMAN LLP __ 77 Stanie/D. Esq. William A. Baird, Esq. Attorneys for Plaintiffs 7 Plaintiff’s Notice of Motion and Motion to Compel Documents 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STATE OF CALIFORNIA) COUNTY OF LOS ANGELES) I am employed in the County of Los Angeles, State of California. I am over the age of eighteen and not a party to the within action; my business address is 29229 Canwood Street, Suite 208, Agoura Hills, California 91301. On March 3, 2017, I served the foregoing documents described as NOTICE OF MOTION AND MOTION TO COMPEL DOCUMENTS IN RESPONSE TO DEPOSITION NOTICE on all interested parties in this action as follows: SEE ATTACHED SERVICE LIST [X] (VIA E-SERVICE) I caused to have such document served via E-Service with OneLegal. [] (VIA US MAIL) I caused such envelope(s) to be deposited in the mail at Agoura Hills, California with postage thereon fully prepaid. I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business. [ am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [1] (VIA OVERNIGHT DELIVERY) I caused to have served such document(s) by placing a true copy thereof, enclosed in a sealed envelope or package designated by addressed as follows and delivered it to an authorized receiving station authorized by to receive documents with delivery fees by our office. [] (VIA PERSONAL SERVICE) I delivered such envelope(s) by hand to the offices of the addressee(s). [] (VIA E-MAIL) I caused to have such documents sent by electronic service [Fed. Rule Civ. Proc. Rule 5(b)(2)(a)] by electronically mailing a true and correct copy through Marlin & Saltzman’s electronic mail system to the e-mail address(s) set forth below, or as stated on the attached service list per agreement in accordance with Federal Rules of Civil Procedure rule 5(b). [X] (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. [] (FEDERAL) I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Executed on March 3, 2017, at Agoura Hills, California. andl, |_rra uz) Sandy Larspic | (J = 8 Plaintiff’s Notice of Motion and Motion to Compel Documents in Response to Depo Notice AN Un W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Batmanghelidj v. Malco Maintenance Inc. OCSC County Superior Court Case No. 30-2016-00829657-CU-PA-CJC Service List Robert T. Bergsten, Esq. Attorneys for Defendant Malco Maintenance HOSP, GILBERT & BERGSTEN Inc. 301 North Lake Avenue, Suite 410 Pasadena, CA 91101 Telephone: 626-792-2400 Facsimile: 626-356-9656 9 Plaintiff’s Notice of Motion and Motion to Compel Documents in Response to Depo Notice
