Maksoud v. Hopkins et al

RESPONSE in Opposition re Ex Parte MOTION for Discovery Regarding Deposition of Plaintiff Charbel Maksoud

S.D. Cal.August 23, 2018

-1- PLAINTIFF’S OPPOSITION TO EX PARTE MOTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Marc Y. Lazo SBN: 215998 WILSON KEADJIAN BROWNDORF, LLP 1900 Main Street, Suite 600 Irvine, California 92614 Tel: (888) 690-5557 Fax: (949) 234-6254 mlazo@wkbllp.com Attorneys for Plaintiff Dr. Charbel Maksoud UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA Dr. CHARBEL MAKSOUD an individual, Plaintiff vs. PHILIPPE GUELTON, an individual; TIRRELL PAYTON, an individual; SUSAN PAYTON, an individual; SHAWN SMITH, an individual; ; BT SOFTWARE AND RESEARCH, INC., a Delaware corporation; SHEKNOWS MEDIA, a New York corporation; MOMENTUM MARKETING, a Canadian entity of unknown form;and DOES 1-100, inclusive, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.:17-CV-362-H-WVG PLAINTIFF’S OPPOSITION TO DEFENDANT TIRRELL PAYTON’S EX PARTE APPLICATION REGARDING DEPOSITION OF PLAINTIFF CHARBEL MAKSOUD AND MOTION TO COMPEL DEFENDANT PHILIPPE GUELTON TO APPEAR AT DEPOSITION Assigned: Hon. Marilyn L. Huff, Courtroom 15A Complaint filed: 2/23/2017 Time: 8:00 A.M. Date: August 24, 2018 Place: Courtroom 15A Case 3:17-cv-00362-H-WVG Document 103 Filed 08/23/18 PageID.1359 Page 1 of 3 -2- PLAINTIFF’S OPPOSITION TO EX PARTE MOTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Dr. Charbel Maksoud (“Plaintiff” or “Maksoud”) opposes Defendant Tirrell Payton’s Ex Parte Application Regarding Deposition of Plaintiff Charbel Maksoud (the “Ex Parte Application”) on the following grounds, and on the declaration of Marc Lazo in support thereof. I. DEFENDANT HAD NOTICE OF PLAINTIFF’S UNAVAILABILITY AND OBJECTION TO THE NOTICE OF DEPOSITION IN WRITING AS EARLY AS JUNE 23, 2018, AND SANCTIONS ARE UNWARRANTED From the commencement of discussions on the deposition of Plaintiff to the present, Plaintiff has maintained consistently that August 22, 2018 would not be a workable date for deposition. On June 23, counsel for Defendant Tirrell Payton (hereinafter, “Payton”) proposed by e-mail a deposition date of August 22, 2018 for Plaintiff Dr. Charbel Maksoud in San Diego, CA. (Decl. Lazo ¶ 2.) On June 23, counsel for Maksoud replied be e-mail that Plaintiff would not be available in the month of August due to being out of the country. Id. Counsel for Maksoud further objected that Plaintiff is a resident of the state of Missouri and that the noticed location of San Diego would be inconvenient. Id. Counsel for Payton nevertheless proceeded to serve notice of the deposition of Maksoud on June 25, with the contested date of August 22, 2018. (Decl. Lazo ¶ 3.) Counsel for Maksoud reaffirmed in multiple e-mails on June 25, 2018, in response to service of the notice, that Maksoud would be unavailable to meet and confer in August, and proposed that the deposition be re-scheduled for September. Id. Counsel for Payton raised concerns as to the discovery cut-off date of August 22, 2018, in this matter, but declined to agree to an extension of the cut-off. Id. Defendant has pointed to separate e-mails on August 20, 2018 from two of Plaintiff’s counsel as evidence of bad faith, as one suggested Maksoud was about to return from a trip out of the country while the other indicated Maksoud had just returned. The discrepancy here indicates a gap in information, not any attempt to “hide the ball.” In the absence of any bad faith, and given that Plaintiff provided ample notice in writing that the August 22, 2018 date would be unworkable, evidentiary and any other sanctions are unwarranted. // // // // Case 3:17-cv-00362-H-WVG Document 103 Filed 08/23/18 PageID.1360 Page 2 of 3 -3- PLAINTIFF’S OPPOSITION TO EX PARTE MOTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. PLAINTIFF HAS AGREED TO APPEAR IN SAN DIEGO FOR DEPOSITION, RENDERING THE EX PARTE APPLICATION MOOT, WHICH WAS MADE KNOWN TO COUNSEL FOR PAYTON PRIOR TO THE FILING In e-mail communications between counsel for Plaintiff and counsel for Defendant on August 22, 2018, counsel for Plaintiff agreed to produce Maksoud for deposition in San Diego in September. (Decl. Lazo ¶ 4.) Such agreement was reiterated in several phone conversations between counsel for Plaintiff and counsel for Defendant. Id. Defendant’s contentions in the Ex Parte Application as to the proper location for the deposition to occur are therefore moot. In fact, counsel for Payton was repeatedly told prior to the Application that Maksoud would appear in San Diego – though no authority was provided for him to be compelled to do so – and would sit for deposition, to no avail. Id. Regardless, counsel for Payton stated he was “instructed to proceed” with the Application. III. THE DEPOSITION OF DEFENDANT PHILIPPE GUELTON IN SAN DIEGO SHOULD BE COMPELLED Plaintiff properly served notice of the deposition of Defendant Philippe Guelton (“Guelton”) on July 5, 2018, setting a deposition date of August 16, 2018. (Decl. Lazo ¶ 5.) Counsel for Philippe Guelton did not serve formal objections to the deposition, but rather unilaterally moved the deposition off-calendar. Id. In an e-mail on August 9, 2018, counsel for Guelton stated that Guelton would not be available and would not be attending the properly noticed deposition. Id. As the parties have been unable to reach an agreeable date and time, despite Guelton’s failure to object, Plaintiff respectfully requests that the Court compel Guelton to appear at a deposition in San Diego on a date convenient to the resolution of all outstanding discovery issues between the parties. This is especially necessary because counsel for Guelton filed an MSJ after unilaterally taking Guelton’s deposition off calendar, and in fact thereafter agreed to continue the MSJ hearing, but has refused to take formal steps to do so. Id. August 23. 2018 ______________________________________ MARC LAZO Case 3:17-cv-00362-H-WVG Document 103 Filed 08/23/18 PageID.1361 Page 3 of 3