Brian Cox Mechanical Inc vs Davis/Reed Construction Inc

Opposition Other

Cal. Super. - 4th Dist.January 24, 2018

11 12 13 14 15 16 17 18 19 20 21 29 23 24 25 26 27 28 Kevin T. Cauley, Esq. (SBN 105082) Kristen M. Bush, Esq. (SBN 285243) SCHWARTZ SEMERDJIAN CAULEY & MOOT LLP 101 West Broadway, Suite 810 San Diego, CA 92101 Telephone No. (619) 236-8821 Facsimile No. (619) 236-8827 Attorneys for Plaintiff BRIAN COX MECHANICAL, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO - CENTRAL DIVISION BRIAN COX MECHANICAL, INC,, Case No. 37-2018-00004006-CU-BC-CTL Plaintiff, PLAINTIFF BRIAN COX MECHANICAL, % INC.’S OPPOSITION TO DAVIS/REED CONSTRUCTION, INC.”S MOTION FOR DAVIS/REED CONSTRUCTION, INC; PROTECTIVE ORDER REGARDING THE RGC GASLAMP, LLC; DEPOSITIONS OF MIKE LYONS AND and DOES 1 through 100, inclusive, DEREK DAVIS Defendants. Date: February 1, 2019 Time: 9:00 am. Judge: Hon. Eddie C. Sturgeon Dept.: C-67 Complaint Filed: 01/24/2018 AND RELATED CROSS-ACTION. Trial Date: Not Set Plaintiff BRIAN COX MECHANICAL, INC. (“BCM?”) hereby submits the following opposition to the motion for protective order filed by DAVIS REED CONSTRUCTION, INC. (“Defendants”) regarding the depositions of Mike Lyons (“Mr. Lyons”) and Derek Davis (“Mr. Davis”). I. INTRODUCTION BCM has filed a motion to compel attendance of Mr. Lyons and Mr. Davis at their depositions. BCM’s motion is scheduled to be heard on February 8, 2019 in this department. BCM'’s motion also seeks to compel the depositions of two other individuals in addition to Mr. Lyons and Mr. Davis. 1 PLAINTIFF'S OPPOSITION TO MOTION FOR PROTECTIVE ORDER RE DEPOSITIONS NN = H W ~N N W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 As an initial matter, Defendant’s motion for a protective order is potentially moot. The sole basis for Defendant’s motion is premised on the outcome of its second pending motion to consolidate, now scheduled to be heard on January 25, 2019. Defendant argues that if BCM’s case is consolidated with cases that other subcontractors have asserted against Defendant, the depositions taken by BCM in the present case would be duplicative and burdensome because Mr. Lyons and Mr. Davis would need to be deposed twice. In sum, this means that if the court denies Defendant’s motion to consolidate BCM’s case with the other subcontractor cases, as the court has already done once on July 27, 2018, Defendant’s basis for this protective order would be without merit, and the Court should deny the motion. Defendant concedes as much in its motion, as it explicitly seeks a protective order extending its deadline to cooperate until after the motion to consolidate hearing. However, BCM has filed and pursued its own separate case against Defendant since January 2018, nearly one year, and still has not been permitted by Defendant to depose key witnesses such as Mr. Lyons and Mr. Davis. BCM’s case has facts separate and independent of those in the consolidated action and is permitted to pursue independent discovery to build its case accordingly. Thus, this opposition focuses on the minimal risk of harm and lack of cognizable prejudice that would result from allowing BCM to depose Mr. Lyons and Mr. Davis in rightful pursuit of discovery in BCM’s case against Defendant. Preliminarily, however, it is important to consider what Defendant is advocating with its motion. If parties such as Defendant were able to obtain a protective order pending its motion for consolidation, nearly any litigant could stay discovery merely by filing a potentially dispositive motion. Indeed, that is precisely what Defendant posits in its motion, arguing that the court should allow Defendant to avoid responding to any deposition discovery requests merely because it filed a second motion to consolidate. Defendant cites no authority for such a broad proposition. Here, the only argument Defendant proffers to support its argument is that it believes its second motion to consolidate is likely to be granted and that, as a result, Defendant should be free from the “undue burden and oppression” of participating in the deposition process prior to its motion to consolidate being heard. 2 PLAINTIFF’S OPPOSITION TO MOTION FOR PROTECTIVE ORDER RE DEPOSITIONS c o 3 O N wn h w Oo 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In Defendant’s motion for a protective order regarding the depositions of Mr. Lyons and Mr. Davis, it contends that BCM has not agreed to postpone these depositions, when in fact, BCM agreed to postpone them several times, including an agreement to postpone until the first motion to consolidate was resolved six months ago. Unfortunately, after Defendant’s first motion to consolidate was denied in July, Defendant continued to refuse BCM the opportunity to depose these key witnesses to its case. BCM has tried to maintain a professional and considerate approach to scheduling and postponing these key depositions, but time and time again, Defendant has refused to | cooperate with the deposition process and acknowledge BCM’s right to pursue discovery following its properly pled complaint. For the foregoing reasons, the Court should require Defendant to cooperate in scheduling and following through with the depositions of Mr. Lyons and Mr. Davis. II. FACTUAL HISTORY OF DEPOSITION REQUESTS FOR MR. LYONS AND MR. DAVIS On January 24, 2018, BCM filed a Complaint against Davis Reed for Breach of Contract i regarding an April 6, 2015, written agreement to install HVAC at The Gaslamp Hotel (Pendry) after Davis Reed failed to pay BCM the agreed-upon amount for such labor. Several other | subcontractors on the job were also claiming breach of contract against Davis Reed with respect to | this project. Following BCM’s proper filing of suit against Davis Reed, BCM began its discovery | efforts in noticing witnesses for depositions. On April 27, BCM noticed Derek Davis, the Owner of Davis Reed, and Mike Lyons, the Project Manager for Davis Reed, to be deposed on June 12 and June 13, 2018. (Cauley Decl. 3.) On May 31, 2018, after no response from Defendants regarding these notices, BCM’s counsel e- mailed Davis Reed’s counsel and asked them to confirm the deponents’ availability for the noticed deposition dates. (Cauley Decl. 4.) Davis Reed’s counsel responded that they were in the process of getting deposition dates, but they did not believe the deponents were available on the dates noticed. (Cauley Decl. 4.) BCM’s counsel then asked them to keep BCM updated on whether or not the noticed dates would work. (Cauley Decl. 94.) On June 10, 2018, after no further feedback from Davis Reed’s counsel, BCM’s counsel again e-mailed them to inquire about whether or not 3 PLAINTIFFS OPPOSITION TO MOTION FOR PROTECTIVE ORDER RE DEPOSITIONS - A W OO 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Mr. Davis and Mr. Lyons were available for the deposition set in less than a week and asked that if they were not available to provide alternative dates in order to get these depositions scheduled. (Cauley Decl. 5.) The day before the deposition, Davis Reed’s counsel telephoned BCM’s counsel to inform them that the depositions of Mr. Davis and Mr. Lyons would not go forward. (Cauley Decl. 46.) BCM’s counsel again requested that opposing counsel provide them with alternative dates available to schedule the depositions, but no such dates were ever given. (Cauley Decl. 6.) On June 25, 2018, Defendants brought their motion to consolidate (9) subcontractor actions, including BCM, claiming therein that all cases had the same questions of law and fact. (Cauley Decl. §7.) On July 27, 2018, Judge Lewis denied Defendant’s motion to consolidate as to two subcontractors-Quality Cabinet, and BCM-stating that Defendants did not set forth sufficient facts to support a finding that consolidation would be beneficial as to these subcontractor cases. (Cauley Decl. 98.) After Defendant’s motion to consolidate BCM was denied, BCM promptly and properly continued pursuing its case against Defendant and trying to get the depositions of Mr. Lyons and Mr. Davis scheduled. (Cauley Decl. 9.) On August 2, 2018, BCM filed an amended notice of the depositions of Mr. Lyons and Mr. Davis for October 9 and October 16, 2018, respectively. (Cauley Decl. 10.) On October 1, 2018, nearly two months after the amended deposition notices were sent, Defendants, objected to the amended notice for Mr. Lyons because it was burdensome and unilaterally noticing. (Cauley Decl. 11.) On October 2, 2018, Defendants also objected to Mr. Davis’ notice on the same grounds. (Cauley Decl. 11.) After several objections by opposing counsel over the course of six months, BCM was again left without any remedy to actively pursue its case due to Defendant’s consistent unwillingness to allow these depositions to move forward. (Cauley Decl. 12.) On October 5, 2018, Davis Reed’s counsel emailed BCM’s counsel, stating that the depositions of these deponents would impose a burden on Defendant’s employees and counsel if the case were to be consolidated because these witnesses would then need to be deposed a second time. (Cauley Decl. 13.) BCM’s counsel responded on October 5, 2018. (Cauley Decl. 14.) In that correspondence, BCM’s counsel stated the following: 4 PLAINTIFF’S OPPOSITION TO MOTION FOR PROTECTIVE ORDER RE DEPOSITIONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Your email speaks only to the burden on Davis/Reed’s employees and counsel. You fail to address the interests of Brian Cox Mechanical Inc. (“BCM”). At this time, BCM's affirmative case is not in the “consolidated action.” I am sure you understand that BCM must pursue its claim. You continually state that you are going to raise the consolidation of BCM again with Judge Lewis. Unfortunately, at this time the motion to consolidate has not been scheduled. My understanding is Judge Lewis's calendar is setting motions in 2019. It is simply not possible for BCM to wait that long before moving its case forward. BCM must go forward with its case and, part of going forward with its case, means taking the depositions of Davis/Reed and RGC Gaslamp employees. BCM intends to make a record of the non-appearance of Mr. Lyons and Mr. Davis if they do not show up for their depositions and will move forward with a motion to compel their attendance at deposition. The depositions that Mr. Lyons and Mr. Davis would sit for would be limited to the BCM issues. Those issues are much more narrow than the general issues related to the Brady SoCal consolidated matter. We do not believe that the issues that Mr. Lyons and Mr. Davis would be asked about in the BCM deposition would be the same or even really closely similar to the issues they would be asked about in the Brady SoCal consolidated matter. Additionally, both the discovery responses served by Davis/Reed and RGC Gaslamp show no evidence of any problem with any work done by BCM or any delay caused by BCM. We would expect Mr. Lyons, Mr. Davis, and the employees of RGC Gaslamp to confirm those facts. I'would request that you provide dates for the depositions of Mr. Lyons and Mr. Davis in October or early November 2018. Anything short of that will result in BCM going forward as discussed above. Thank you for your email. In response to this correspondence, BCM did not hear back from Defendants. (Cauley Decl. 914.) Defendants then filed the current motion for a protective order for Mr. Lyons and Mr. Davis on October 9, 2018, realleging that the case was likely to be consolidated and that having the Deponents deposed now would be burdensome. (Cauley Decl. 15.) The hearing for this motion for protective order is not set to be heard until February 1, 2019, nearly 10 months past the initial notice date for these deponents’ depositions. (Cauley Decl. 15.) II. LEGAL ARGUMENT A party is entitled to disclosure in discovery as “a matter of right unless statutory or public policy considerations clearly prohibit it.” Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 378. California courts have reiterated that provisions in the Civil Discovery Act of 1986 (CCP 2016-2036) and the Civil Discovery Act (CCP 2016.010-2036.050), which replaces it, are to be liberally construed in favor of disclosure. Flagship Theaters of Palm Des., LLC v. Century Theaters, Inc. (2011) 198 Cal. App.4th 1366, 1383. A protective order from such discovery is only 5 PLAINTIFE’S OPPOSITION TO MOTION FOR PROTECTIVE ORDER RE DEPOSITIONS 0 NN a N wn © 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 21 28 appropriate if the court determines that justice requires the court to protect a party “from unwarranted annoyance, embarrassment, oppression, or undue burden and expense.” Code of Civ. Proc. § 2025.420. Under California Code of Civil Procedure section 2025.420, a party’s motion for a protective order may only be granted by the court for good cause if justice so requires to protect deponents or party from “unwanted annoyance, embarrassment, or oppression, or undue burden and expense.” “Oppression means the ultimate effect of the burden of responding to the discovery is incommensurate with the result sought.” West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 417. In considering whether discovery is unduly burdensome or expensive, the court takes into account “the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation.” Code. Civ. Proc., § 2019.030, subd. (a)(2). People ex rel. Harris v. Sarpas (2014) 225 Cal. App.4th 1539, 1552. Pursuant to Code of Civil Procedure section 2025.220, BCM properly noticed the oral deposition of both Mr. Lyons and Mr. Davis. In response, Defendant’s counsel refused to produce Deponents on the grounds that the depositions were burdensome and unilaterally noticed. Accordingly, BCM has asserted their rights under Section 2025.450 to compel their depositions. The question for the Court is whether Defendant has shown good cause required to grant a motion for a protective order. BCM argues that it has not shown such good cause because: there is a minimal risk of harm in allowing these depositions to proceed, there exists no unwarranted oppression or undue burden in allowing Mr. Lyons and Mr. Davis to be deposed, and Defendant’s entire argument for granting this motion is premised off of the contingency that they are granted their second motion to consolidate, the first of which was denied in July. By continuously evading BCM’s request for dates to depose Deponents and objecting to the properly noticed deposition a mere two weeks before it was set to occur despite having two months prior to object, any objection by Defendant and its attorneys that the deposition was “unilaterally noticed” is disingenuous. Moreover, BCM has evidenced extreme understanding and flexibility in 6 PLAINTIFF’S OPPOSITION TO MOTION FOR PROTECTIVE ORDER RE DEPOSITIONS H O W ND Oo 0 a9 S N OW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the scheduling of these depositions by remaining in constant contact with Defendant’s counsel regarding what dates may work, properly noticing depositions for all deponents numerous times after conferring with Defendants on what dates would be appropriate, and by agreeing to notice witnesses at a later “mutually agreeable date” after the first meet and confer hearing in July 2018. BCM has now waited six months since the original notice was scheduled and has yet to receive a range of available dates from Defendant’s counsel to schedule Deponents depositions. Instead, BCM is being asked to wait an additional six months to depose key witnesses in their case. In order to be able to pursue its rightful claims against Defendant, BCM is left with no aiher remedy besides a motion to compel. IV. CONCLUSION The Court should deny this motion in its entirety for the reasons set forth above. DATED: January 17, 2019 SCHWARTZ SEMERDIJIAN CAULEY & MOOT LLP By: In T. (tole Kevin T. Cauley = Kristen M. Bush Attorney for Plaintiff BRIAN COX MECHANICAL, INC 7 PLAINTIFF'S OPPOSITION TO MOTION FOR PROTECTIVE ORDER RE DEPOSITIONS c o 3 O N n h \O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Kevin T. Cauley, Esq. (SBN 105082) Kristen M. Bush, Esq. (SBN 285243) SCHWARTZ SEMERDJIAN CAULEY & MOOT LLP 101 West Broadway, Suite 810 San Diego, CA 92101 Telephone No. (619) 236-8821 Facsimile No. (619) 236-8827 PROOF OF SERVICE Brian Cox Mechanical, Inc. v. Davis/Reed Construction, Inc., et al, San Diego Superior Court Case No. 37-2018-00004006-CU-BC-CTL I, Daphne Acebedo, declare: That I am, and was at the time of service of the papers herein referred to, over the age of eighteen years, and not a party to the action; and I am employed in the County of San Diego, California in which county the within-mentioned mailing occurred. My business address is 101 West Broadway, Suite 810, San Diego, California 92101. My electronic service address is: daphne@sscmlegal.com. On January 18, 2019, I served the following documents: PLAINTIFF BRIAN COX MECHANICAL, INC.’S OPPOSITION TO DAVIS/REED CONSTRUCTION, INC.’S MOTION FOR PROTECTIVE ORDER REGARDING THE DEPOSITIONS OF MIKE LYONS AND DEREK DAVIS DECLARATION OF KEVIN T. CAULEY, ESQ. IN SUPPORT OF PLAINTIFF BRIAN COX MECHANICAL, INC.”S OPPOSITION TO DAVIS/REED CONSTRUCTION, INC.”’S MOTION FOR PROTECTIVE ORDER REGARDING THE DEPOSITIONS OF MIKE LYONS AND DEREK DAVIS on the parties in said action as follows: Jeff S. Hood, Esq. Attorneys for Defendants Michelle J. Wells, Esq. DAVIS/REED CONSTRUCTION, INC. and Procopio, Cory, Hargreaves & Savitch LLP LIBERTY MUTUAL INSURANCE 12544 High Bluff Drive, Suite 400 COMPANY San Diego, CA 92130 Tel: 858-720-6300 / Fax: 619-235-0398 Email: jeff hood@procopio.com; michelle.wells@procopio.com Gregory S. Markow, Esq. Attorneys for Defendant and Cross-Defendant Jamie Altman Buggy, Esq. RGC GASLAMP, LLC CGS3 LLP 12750 High Bluff Drive, Suite 250 San Diego, CA 92130 Tel: 858-367-7676 / Fax; 858-345-1991 Email: gmarkow(@cgs3.com; jbuggy@cgs3.com 1! 1 1 PROOF OF SERVICE IN Oo 0 3 S N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 2% 24 25 26 27 28 [] [v] BY UNITED STATES MAIL. I enclosed the document(s) in a sealed envelope or package addressed to the person(s) at the address(es) listed above and placed the envelope for collection and mailing, following our ordinary business practices. Iam readily familiar with this business’s practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid in accord with our business’ practice on January 18, 2019, at San Diego, California. BY OVERNIGHT MAIL. I enclosed the document(s) in an envelope or package provided by an overnight delivery carrier and addressed to the person(s) at the address(es) listed above. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. BY ELECTRONIC SERVICE. I electronically served the document(s) to the person(s) at the electronic service address(es) listed above. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: January 18, 2019 [ wd (14d. Daphne Acebedo 2 PROOF OF SERVICE