Lisa Karamardian vs. True Food KitchenMotion to Compel Deposition (Oral or Written)Cal. Super. - 4th Dist.January 19, 2016A I T K E N 4 A I T K E N 4+ C O H N 3 M A C A R T H U R P L A C E , S U I T E 80 0 S A N T A A N A , C A 92 70 7 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E O O X X 3 a N R x W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ATTICUS N. WEGMAN, STATE BAR NO. 273496 AITKEN+AITKEN +COHN 3 MACARTHUR PLACE, SUITE 800 SANTA ANA, CA 92707-2555 (714) 434-1424 Telephone (714) 434-3600 Facsimile Attorneys for Plaintiffs LISA KARAMARDIAN and VAHE KARAMARDIAN SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE - CENTRAL JUSTICE CENTER LISA KARAMARDIAN,an individual; and CASE NO: 30-2016-00830928-CU- VAHE KARAMARDIAN,an individual, PL-CJC Plaintiff [Hon. James Crandall, Dept. C33] VS. FRC TRUE FOOD NBFI, LLC, doing business as NOTICE OF MOTION AND TRUE FOOD KITCHEN, and DOES 1 to 100, MOTION TO COMPELDEPOSITION OF THE PERSON MOEKODA"3 Defendants. MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ATTICUS N. WEGMAN; DECLARATION OF KRIS McCARTHY; [PROPOSED] ORDER Date: October 13,2016 Time: 1:30 p.m. Dept: C33 Reservation No.: 72429302 Complaintfiled: 1/19/16 Trial date: 12/12/16 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD HEREIN:PLEASE TAKE NOTICE that on October 13, 2016 at 1:30 p.m. in Department C33 ofthe above-entitled court, located at 700 Civic Center West Drive, Santa Ana, California,plaintiffs, through their counsel of record, will bring a motion for an order to compel the1NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF THE PERSON MOSTKNOWLEDGEABLE OF TRUE FOOD KITCHEN; MEMORANDUM OF POINTS AND AUTHORITIES;DECLARATION OF ATTICUS N. WEGMAN; DECLARATION OF KRIS McCARTHY; [PROPOSED] ORDER A I T K E N 4+ A I T K E N 4 C O H N 3 M A C A R T H U R P L A C E , S U I T E 80 0 S A N T A A N A , C A 92 70 7 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E N O 0 3 Y N U n B W N = N R N N N N N N = s e deposition of the Person Most Knowledgeable of True Food Kitchen. This motion is brought on the grounds that defendant failed to produce a witness at a properly noticed deposition (upon rescheduling to accommodate defendant's availability) and its failure to serve a valid objection. This Motion is based upon this Notice, the Statement of Facts and Memorandum of Points and Authorities attached hereto, the Declaration of Atticus N. Wegman and the Declaration of Kris McCarthy attached hereto, and the entire court file in this matter as well as any oral arguments that may be heard on this matter. AITKEN4AITKEN4COHN By: [le GYNop--- ATTICUS N. WEGMAN, Attorney for Plaintiffs LISA KARAMARDIAN and VAHE KARAMARDIAN Dated: August 17,2016 2 NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF THE PERSON MOST KNOWLEDGEABLE OF TRUE FOOD KITCHEN; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ATTICUS N. WEGMAN; DECLARATION OF KRIS McCARTHY; [PROPOSED] ORDER A I T K E N 4 A I T K E N 4+ C O H N 3 M A C A R T H U R P L A C E , S U I T E 80 0 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 92 70 7 o O 0 N N BA R W N ) N N N N R N N N B N N e m e a e t m m p m e m e d e m p e a c L N N O Y n n A W N = O V N N N R W N m o MEMORANDUM OF POINTS AND AUTHORITIES LL INTRODUCTION This lawsuit arises from an incident that occurred on or around August 22, 2014, whereby plaintiff Lisa Karamardian contracted a severe and deadly foodborne illness after eating at defendant FRC TRUE FOOD NBFI, LLC’s restaurant True Food Kitchen in Newport Beach, CA. Plaintiff Lisa Karamardian would spend nearly two weeks at Hoag Hospital where she was monitored under the watchful eye of a multitude of doctors. It was eventually confirmed that plaintiff Lisa Karamardian contracted a foodborne bacteria known as Shigella. Once contracted, Shigella begins to invade the epithelial lining of the colon, causing severe inflammation and death of the cells lining the colon. This inflammation results in the diarrhea and even dysentery that are the hallmarks of Shigella infection. It was during this time that other persons in the local community also presented to the hospital with similar issues. The common link between these cases and the confirmed foodborne illness of Shigella was foods eaten during that same time period at True Food Kitchen. Plaintiff's close friend Natasha Minasian ate with Plaintiff Lisa Karamardian and also contracted the exact same illness causing her to spend nearly two weeks on the brink of death in a hospital. Within a week after contracting Shigella, the Orange County Health Department would shut down the restaurant True Food Kitchen in Newport Beach, CA. Upon inspection, Orange County Health inspectors found numerous violations and noted that True Food Kitchen would need to be retrained on basic food safety practices including handwashing and hygiene. Shigella, of course,is spread and contracted due to inappropriate handwashing. The actual matterthat is spread, according to Centersfor Disease Control and Prevention, is fecal matter. This matter was filed on January 19, 2016 and plaintiffs properly served a Notice for taking the deposition of the person most qualified and production of documents on July 1, 2016. A copy ofplaintiff's deposition notice is attached hereto as Exhibit 1 to the Declaration of Atticus N. Wegman. Defendant served an objection on July 20, 2016, and concurrently reached out to plaintiff’s counsel’s office requesting that the deposition be continued. 4 copy of defendant’s objection is attached hereto as Exhibit 2 to the Declaration ofAtticus N. Wegman. 3 NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF THE PERSON MOST KNOWLEDGEABLE OF TRUE FOOD KITCHEN; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ATTICUS N. WEGMAN; DECLARATION OF KRIS McCARTHY; [PROPOSED] ORDER A I T K E N + A I T K E N 4 C O H N 3 M A C A R T H U R P L A C E , S U I T E 8 0 0 S A N T A A N A , C A 92 70 7 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E O O ® N 3 N n n B R W N D N N D N R N N N N N m o m m e a e m e m p m am a e m R X N A A N R W N = O O 0 N N B R W N m o See also Declaration ofKris McCarthy, legal assistant to Atticus N. Wegman, Esq. regarding defendant’s requestfor a continuance. In response, plaintiffs served an amended notice pursuant to defendant’s request to continue the deposition to August 10, 2016. 4 copy ofplaintiff's amended deposition notice is attached hereto as Exhibit 3 to the Declaration ofAtticus N. Wegman. On August 5, 2016, defendant served an objection to the request for documents, which accompanied the deposition notice and noted that “defendant will make available the person(s) most knowledgeable at a mutually convenient time, place, and location.” A copy ofdefendant ’s objection is attached hereto as Exhibit 4 to the Declaration ofAtticus N. Wegman. Defendant’s objection made no mention that it would not be producing a witness. Not until August 9, 2016 at 2:00 p.m., only one day before the schedule deposition, (likely after noticing that its objection was invalid) did defendant serve an improper amended objection indicating (for the first time!) it would not be producing anyone for the properly noticed and agreed to deposition. 4 copy ofdefendant's amended objection is attached hereto as Exhibit 5 to the Declaration ofAtticus N. Wegman. Unfortunately, plaintiff had already made arrangements to proceed with the deposition and thus was forced to incur unnecessary court reporter expenses totaling $150.00. 4 copy ofthe expenses and certificate ofnon-appearance is attached hereto as Exhibit 6 to the Declaration of Atticus N. Wegman. Pursuant to Code ofCivil Procedure section 2025.410(a), an objection challenging an alleged defect in a deposition must be served no later than three days before the deposition. Further, Plaintiff sent counsel a meet and confer letter asking for certain dates for the personsit is designating as persons most knowledgeable so we can proceed with their depositions, but no dates have been provided. A copy ofplaintiffs’ meet and confer letter is attached hereto as Exhibit 7 to the Declaration ofAtticus N. Wegman. Independently, and also the subject of this motion is that defendant’s invalid amended objection served on August 9, 2016, provided the names oftwo persons it would be designating as the persons most knowledgeable for various requested categories. Defendant objected that one of the individuals it is designating resides in Arizona and therefore his deposition must take place within 75 miles ofthe party’s Arizona business office. Plaintiff sent defendant a letter citing the 4 NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF THE PERSON MOST KNOWLEDGEABLE OF TRUE FOOD KITCHEN; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ATTICUS N. WEGMAN; DECLARATION OF KRIS McCARTHY; [PROPOSED] ORDER A I T K E N 4+ A I T K E N 4 C O H N 3 M A C A R T H U R P L A C E , S U I T E 86 0 S A N T A A N A , C A 92 70 7 71 4- 43 4- 14 24 71 4- 43 4- 36 00 FA CS IM IL E O O 0 N N n n i ” W N ) B N N N N N N N N N r m e t m d e t pe d d k j d e d p e 0 A N B R E W = O W e N N W R W N e e O S proper law that applies to this situation, which to the contrary, states that the deposition ofthe person most knowledgeable ofan entity defendant shall go forward in the county where the action is pending (Orange County)if there is no other business office in California by which a deposition within 75 miles can take place. Code ofCivil Procedure section 2025.250(d). Defendant True Food Kitchen is a Limited Liability Company thatis registered in Arizona and does not have a business office in California. Presently, we are approximately four months away from trial, which is set for December 12,2016. Due to defendant FRC TRUE FOOD NBFI, LLC’s failure to comply with simple discovery requests, plaintiffs are prejudiced and unable to fully prepare their case in time for trial. For such reasons, and the liberal rules that support civil discovery, plaintiffs ask for such motion to be granted in their entirety, and sanctions levied accordingly. II. ATTENDANCE AND TESTIMONY AT DEPOSITION a. If A Party Fails To Appear For Deposition, the Party Giving Notice May Move For An Order to Compel Attendance At Deposition. “A party desiring to take the oral deposition of any person shall give notice in writing.” Code ofCivil Procedure Section 2025.220. (a) "If, after service of a deposition notice, a party to the action . .. without having served a valid objection under subdivision Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document 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 or tangible thing described in the deposition notice. (b) A motion under subdivision (a) shall comply with the following: (1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document or tangible thing described in the deposition notice. (2) The motion shall be accompanied by a meet and confer declaration 5 NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF THE PERSON MOST KNOWLEDGEABLE OF TRUE FOOD KITCHEN; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ATTICUS N. WEGMAN; DECLARATION OF KRIS McCARTHY; [PROPOSED] ORDER A I T K E N 4+ A I T K E N 4 C O H N 3 M A C A R T H U R P L A C E , S U I T E 86 0 S A N T A A N A , C A 92 70 7 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E o O N y n n B w N D 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 under Section 2016.040, or, when the deponentfails to attend the deposition and produce the documents or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponentto inquire about the nonappearance.” Code ofCivil Procedure Section 2025.450. (a) Unless the court orders otherwise under Section 2025.260, the deposition of a natural person, whether or not a party to the action, shall be taken at a place thatis, at the option ofthe party giving notice of the deposition, either within 75 miles of the deponent's residence, or within the county where the action is pending and within 150 miles of the deponent's residence. (b) The deposition of an organization that is a party to the action shall be taken at a place that is, at the option of the party giving notice ofthe deposition, either within 75 miles of the organization's principal executive or business office in California, or within the county where the action is pending and within 150 miles of that office. (c) Unless the organization consents to a more distant place, the deposition of any other organization shall be taken within 75 miles of the organization's principal executive or business office in California. (d) If an organization has not designated a principal executive or business office in California, the deposition shall be taken at a place that is, at the option of the party giving notice of the deposition, either within the county where the action is pending, or within 75 miles of any executive or business office in California of the organization. Code ofCivil Procedure Section 2025.250 (emphasis added). Defendant’s failure to timely serve an objection and provide notice that it would not be producing a witness at the designated time and location (after asking for the deposition to be continued) is egregious conduct. Plaintiffs have incurred unnecessary costs and their attorney has spent unnecessary time drafting and serving these moving papers. With only approximately four months until trial, plaintiffs should not be in the position where they are still working to take depositions of defendant’s personnel. II. CONCLUSION For all of the foregoing reasons, plaintiffs request that the court grant this motion in its 6 NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF THE PERSON MOST KNOWLEDGEABLE OF TRUE FOOD KITCHEN; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ATTICUS N. WEGMAN; DECLARATION OF KRIS McCARTHY; [PROPOSED] ORDER 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E A I T K E N 4 A I T K E N 4 C O H N 3 M A C A R T H U R P L A C E , S U I T E 80 0 S A N T A A N A , C A 92 70 7 O W 0 ~ ~ O& O n n b h W N D N B O N R N N N O N R N D N = m m e m a e m em t p a e m a pe e K R N N A A n n B A W N = O v e N Y B R W N = entirety. Dated: August 17,2016 By: 7 AITKEN4AITKEN4COHN (leeftg- ATTICUS N. WEGMAN, Attorney for Plaintiffs LISA KARAMARDIAN and VAHE KARAMARDIAN NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF THE PERSON MOSTKNOWLEDGEABLE OF TRUE FOOD KITCHEN; MEMORANDUM OF POINTS AND AUTHORITIES;DECLARATION OF ATTICUS N. WEGMAN; DECLARATION OF KRIS McCARTHY; [PROPOSED] ORDER 71 4- 43 4- 14 24 71 4- 43 4- 36 60 F A C S I M I L E A I T K E N 4 A I T K E N 4+ C O H N 3 M A C A R T H U R P L A C E , S U I T E 80 0 S A N T A A N A , C A 92 70 7 O 0 0 1 O N W N ) e e N O N N N R N N N N N = o m a e m e m e d p m pe s pe d p m 0 N N G Y B R A W N O O R N Y N R W N Y = O PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; my business address is 3 MacArthur Place, Suite 800, Santa Ana, California, 92707. On August 17, 2016, I served the foregoing documents described as NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF THE PERSON MOST KNOWLEDGEABLE OF TRUE FOOD KITCHEN; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ATTICUS N. WEGMAN; DECLARATION OF KRIS McCARTHY; [PROPOSED] ORDER on the parties herein in this action by placing () the original (x) a true copy thereof in a sealed envelope addressed as indicated on the attached servicelist. SEE ATTACHED SERVICE LIST (X) BY MAIL (X) As follows: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Santa Ana, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date orpostage meter date is more than one day after date of deposit for mailing an affidavit. ( ) By Personal Service: I caused the above-referenced the document(s) to be delivered by hand to the attached addressees. ( ) By Overnight Courier: I caused the above-referenced document(s) to be delivered to an overnight courier service for delivery to the above address(es). ( ) By Facsimile Machine: I caused the above-referenced document(s) to be transmitted to the above-named persons at the following telephone number(s) see attached Proof of Service list. () By Email Transmission: I caused the above-referenced document(s) to be transmitted to the persons listed in the attached Proof of Service lists. Executed on August 17, 2016, at Santa Ana, California. (X) (State) I declare under penalty of perjury under the laws ofthe State of California that the above is true and correct. Kristin McCarthy u 8 NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF THE PERSON MOST KNOWLEDGEABLE OF TRUE FOOD KITCHEN; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ATTICUS N. WEGMAN; DECLARATION OF KRIS McCARTHY; [PROPOSED] ORDER A I T K E N 4 A I T K E N 4+ C O B N 3 M A C A R T H U R P L A C E , S U I T E 80 0 S A N T A A N A , C A 92 70 7 71 4- 43 4- 14 24 71 4- 43 4- 36 60 F A C S I M I L E O V 0 ~ ~ O v n n b h W N B N N N N N D R N N N ) m m m m e s e k e d e t e m pe s e m © N N n h A W N = D O N N D R W N O o KARAMARDIAN v. FRC TRUE FOOD NBFI, LLC, doing business as TRUE FOOD KITCHEN SERVICE LIST George Mubhar, Esq. Attorneys for FRC TRUE FOOD NBFI, LAW OFFICES OF NANCY A. HALAS LLC, doing business as TRUE FOOD 790 The City Drive, Suite 400 KITCHEN Orange, CA 92868 (714) 939-0180 (866) 547-5409-fax George.muhar@libertymutual.com 9NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF THE PERSON MOSTKNOWLEDGEABLE OF TRUE FOOD KITCHEN; MEMORANDUM OF POINTS AND AUTHORITIES;DECLARATION OF ATTICUS N. WEGMAN; DECLARATION OF KRIS McCARTHY; [PROPOSED] ORDER