Motion_to_compel_plaintiffs_depositionMotionCal. Super. - 4th Dist.August 2, 2019[\ ] N Y a h B W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2354-3016 Andrew N. Kohn, Esq., SBN 166385 Janice Y. Walshok, Esq., SBN 261098 ELECTRONICALLY FILED PETTIT KOHN INGRASSIA LUTZ & DOLIN PC Superior Court of Califonia, 11622 El Camino Real, Suite 300 County of San Diego San Diego, CA 92130 0207/2020 at 03:42:00 PI Telephone: (858) 755-8500 Clerk of the Superior Court Facsimile: (858) 755-8504 By Carolina Miranda, Deputy Clerk E-mail: akohn@pettitkohn.com jwalshok@pettitkohn.com Attorneys for Defendant WALMART INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO BOOKER GAULT JR., an individual, CASE NO.: 37-2019-00040281-CU-PO-CTL Plaintiff, DEFENDANT WALMART INC.’S NOTICE V. OF MOTION AND MOTION TO COMPEL PLAINTIFF’S DEPOSITION AND WALMART INC., a Delaware corporation; CORRESPONDING REQUEST FOR and DOES 1 to 50, Inclusive, SANCTIONS FROM PLAINTIFF Defendants. Date: March 6, 2020 Time: 11:00 a.m. Dept.: C-69 Judge: Katherine Bacal Filed: August 2, 2019 Trial: Not Set TO PLAINTIFF AND HIS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on March 6, 2020, at 11:00 a.m., or as soon thereafter as the matter can be heard in Department C-69 of the above-entitled Court, located at 330 West Broadway, San Diego, California, Defendant WALMART INC. (“Defendant”) will move the Court for an order compelling Plaintiff BOOKER GAULT JR.’s (“Plaintiff”) deposition. Defendant will also request that the Court impose sanctions against Plaintiff in the amount of $410, representing reasonable attorneys’ fees and costs incurred in preparation of this motion. 11 I 1 DEFENDANT WALMART INC.’S NOTICE OF MOTION AND MOTION TO COMPEL PLAINTIFF'S DEPOSITION AND CORRESPONDING REQUEST FOR SANCTIONS FROM PLAINTIFF 1 This motion will be based upon this notice of motion, the attached memorandum of points 2 | and authorities, the declaration of Janice Y. Walshok, as well as the entire file on record herein 3 | and any and all oral and documentary evidence as may be presented at the time of the hearing of 4 || this matter. 3 PETTIT KOHN INGRASSIA LUTZ & DOLIN PC Dated: February 7, 2020 By: tla P— A#ldrew N. Kohn, Esq. 8 Janice Y. Walshok, Esq. Attorneys for Defendant 9 WALMART INC. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2354-3016 2 DEFENDANT WALMART INC.’S NOTICE OF MOTION AND MOTION TO COMPEL PLAINTIFF'S DEPOSITION AND CORRESPONDING REQUEST FOR SANCTIONS FROM PLAINTIFF 4S OO RX 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2354-3016 Andrew N. Kohn, Esq., SBN 166385 Janice Y. Walshok, Esq., SBN 261098 PETTIT KOHN INGRASSIA LUTZ & DOLIN PC 11622 El Camino Real, Suite 300 San Diego, CA 92130 Telephone: (858) 755-8500 Facsimile: (858) 755-8504 E-mail: akohn@pettitkohn.com jwalshok@pettitkohn.com Attorneys for Defendant WALMART INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO BOOKER GAULT JR., an individual, Plaintiff, V. WALMART INC. a Delaware corporation; and DOES 1 to 50, Inclusive, Defendants. CASE NO.: 37-2019-00040281-CU-PO-CTL MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT WALMART INC.’S MOTION TO COMPEL PLAINTIFF’S DEPOSITION AND CORRESPONDING REQUEST FOR SANCTIONS FROM PLAINTIFF Date: Time: March 6, 2020 11:00 a.m. Dept.: C-69 Judge: Katherine Bacal Filed: August 2, 2019 Trial: Not Set Defendant WALMART INC. (“Defendant”) moves this court for an order compelling Plaintiff BOOKER GAULT JR.’s (“Plaintiff”) deposition. Defendant also seeks sanctions from Plaintiff in the amount of $410, representing reasonable attorneys’ fees and costs incurred in the preparation of this motion and the fees and costs associated with Plaintiff’s failure to appear at her deposition on January 27, 2020. nn 11 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT WALMART INC.’S MOTION TO COMPEL PLAINTIFF'S DEPOSITION AND REQUEST FOR SANCTIONS FROM PLAINTIFF EN 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 2354-3016 I. FACTUAL BACKGROUND Plaintiff alleges that on August 4, 2017, Plaintiff was at Walmart located in Chula Vista. He claims that his “foot got stuck on a shelf and/or display stand on the floor causing him to trip and fall.” (Plaintiff’s Complaint at pp. 4-5 at Docket No. 1; Declaration of Janice Walshok in Support of Walmart’s Motion to Compel (“Walshok Decl.”), § 3.) On August 2, 2019, Plaintiff filed a Complaint for negligence and premises liability against Walmart. (/d.) On September 17, 2019, Plaintiff served his Complaint on Walmart. (Walshok Decl., § 4.) On October 17, 2019, Walmart timely filed an Answer to the Complaint and served a Notice of Taking Plaintiff’s Deposition on December 3, 2019. (12/3/19 Deposition Notice attached as Exhibit “1” to the Declaration of Janice Walshok in Support of Motion to Compel Plaintiff’s Deposition (“Walshok Decl.”).) On November 19, 2019, Plaintiff’s objected to Walmart’s deposition notice and stated Plaintiff was not available on December 3, 2019 for deposition, but did not provide any alternate dates. (Plaintiff’s Objections to 12/3/19 deposition attached as Exhibit “2” to Walshok Decl.) On December 6, 2019, Walmart served an Amended Notice of Taking Plaintiff’s Deposition noticed for January 3, 2020. (12/6/19 Deposition Notice attached as Exhibit “3” to Walshok Decl.) On January 10, 2020, Walmart’s counsel sent Plaintiff’s counsel a meet and confer letter memorializing defense counsel’s efforts to obtain dates when Plaintiff would be available for deposition. (Walmart’s 1/10/20 Meet and Confer Letter attached as Exhibit “4” to Walshok Decl.) When Plaintiff’s counsel failed to respond, on January 10, 2020, Walmart served a Second Amended Notice of Taking Plaintiff’s Deposition noticed for January 27, 2020. (Second Amended Deposition Notice attached as Exhibit “5” to Walshok Decl.) Several days before the incident, Walmart’s counsel’s office attempted to contact Plaintiff’s counsel on numerous occasions to confirm that Plaintiff’s deposition would proceed on January 27, 2020. (January 2020 Meet and Confer Emails from Walmart’s Counsel attached as Exhibit “6” to Walshok Decl.) It was around this time Walmart counsel learned Plaintiffs counsel was seeking to withdraw as counsel, which is set to be heard on February 28, 2020. (Walshok Decl., §12; Motion 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT WALMART INC.’S MOTION TO COMPEL PLAINTIFF'S DEPOSITION AND REQUEST FOR SANCTIONS FROM PLAINTIFF wv As W N ~ N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2354-3016 to Withdraw, Docket No. 16.) To date, Walmart has been precluded from taking Plaintiff’s deposition. (Walshok Decl. 914.) As a result, Walmart has been prejudiced in adequately preparing a defense in this matter. IL. THE COURT SHOULD ORDER PLAINTIFF TO APPEAR FOR DEPOSITION California Code of Civil Procedure section 2025.450 establishes the authority for Defendant to bring this motion to compel the deposition of Plaintiff: 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, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or 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. Clearly as outlined above, Plaintiff has not appeared for his properly noticed deposition. Walmart’s counsel made multiple attempts to meet and confer with Plaintiff’s counsel to schedule Plaintiff’s deposition, offered several dates, and noticed Plaintiff’s deposition on multiple occasions. In Obregon v. Superior Court, the court found that Plaintiff showed a “lack of good faith” effort at the informal resolution when he sent a single brief letter. (Obregon v. Superior Court (1998) 67 Cal. App.4th 424, 431.) The Obregon court awarded sanctions and found that it could deny discovery outright in cases of “clear intent to burden,” and for “cases of established track records of lack of good faith.” Similar to Obregon, Plaintiff has shown “a clear track record of lack of good faith,” and the court has grounds to sanction Plaintiff as such, as seen in the above statement of facts outlining the meet and confer efforts made by Defendant. Accordingly, Walmart is forced to move the Court for an order compelling the deposition of Plaintiff so that Walmart can move forward with basic discovery. Walmart has incurred unnecessary fees and costs to compel party deposition to which it is entitled. 1 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT WALMART INC.’S MOTION TO COMPEL PLAINTIFF’S DEPOSITION AND REQUEST FOR SANCTIONS FROM PLAINTIFF Oo XX 9 A Un A 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2354-3016 IIL. MONETARY SANCTIONS SHOULD BE ASSESSED AGAINST PLAINTIFF FOR FAILING TO APPEAR FOR DEPOSITION WITHOUT SUBSTANTIAL JUSTIFICATION Under Section 2024.450(g) of the Code of Civil Procedure, the Court must impose monetary sanctions against any party or attorney who unsuccessfully opposes a motion to compel attendance at deposition unless that party acted with substantial justification. Plaintiff has no justification for failing to appear for her deposition. An objection was not timely served prior to the deposition. No viable explanation has been provided as to why Plaintiff has not been made available for deposition. Monetary sanctions are appropriate in these circumstances. Pursuant to this motion and the attached Declaration of Janice Walshok, sanctions in the amount of $410 should be assessed against Plaintiff. As it does not appear Plaintiff’s counsel has contributed to Plaintiff’s abuse of the discovery rules, Walmart is not seeking sanctions against Plaintiff’s counsel. IV. CONCLUSION Defendant Walmart Inc. respectfully requests that this Court order Plaintiff Booker Gault, Jr. to appear for his deposition. Defendant further requests that monetary sanctions be assessed against Plaintiff in the amount of $410. PETTIT KOHN INGRASSIA LUTZ & DOLIN PC Dated: February 7, 2020 By: CMAN /Andrew N. Kohn, Esq. Janice Y. Walshok, Esq. Attorneys for Defendant WALMART INC. 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT WALMART INC.’S MOTION TO COMPEL PLAINTIFF’S DEPOSITION AND REQUEST FOR SANCTIONS FROM PLAINTIFF A ~~ O N W n 10 11 12 13 14 15 16 17 18 19 20 21 29 23 24 25 26 27 28 2354-3016 Andrew N. Kohn, Esq., SBN 166385 Janice Y. Walshok, Esq., SBN 261098 PETTIT KOHN INGRASSIA LUTZ & DOLIN PC 11622 El Camino Real, Suite 300 San Diego, CA 92130 Telephone: (858) 755-8500 Facsimile: (858) 755-8504 E-mail: akohn@pettitkohn.com jwalshok@pettitkohn.com Attorneys for Defendant WALMART INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO BOOKER GAULT JR., an individual, Plaintiff, Vv. WALMART INC., a Delaware corporation; and DOES 1 to 50, Inclusive, Defendants. I, Janice Y. Walshok, declare as follows: CASE NO.: 37-2019-00040281-CU-PO-CTL DECLARATION OF JANICE Y. WALSHOK IN SUPPORT OF DEFENDANT WALMART INC.’S MOTION TO COMPEL PLAINTIFF’S DEPOSITION AND CORRESPONDING REQUEST FOR SANCTIONS FROM PLAINTIFF Date: Time: Dept.: Judge: Filed: Trial: March 6, 2020 11:00 a.m. C-69 Katherine Bacal August 2, 2019 Not Set 1. I am an attorney at law duly licensed to practice before all courts of the State of California and am a shareholder with the law firm of Pettit Kohn Ingrassia Lutz & Dolin PC, attorneys of record for WALMART INC. (“Defendant”) in the above-captioned case. 2 I have personal knowledge of the following facts and, if called upon as a witness, could competently testify thereto, except as to those matters which are explicitly set forth as based upon my information and belief and, as to such matters, [ am informed and believe that they are true and correct. 1 DECLARATION OF JANICE Y. WALSHOK IN SUPPORT OF DEFENDANT WALMART INC.’S MOTION TO COMPEL PLAINTIFF'S DEPOSITION AND REQUEST FOR SANCTIONS FROM PLAINTIFF G2 no OO 0 9 O Y Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2354-3016 3. On August 2, 2019, Plaintiff filed a Complaint for negligence and premises liability against Walmart. Plaintiff's Complaint alleged he was at Walmart in Chula Vista on August 4, 2017, when his “foot got stuck on a shelf and/or display stand on the floor causing him to trip and fall.” 4. On September 17, 2019, Plaintiff served his Complaint on Walmart. > On October 17, 2019, Walmart timely filed an Answer to the Complaint, along with a Notice of Taking Plaintiff’s Deposition on December 3, 2019. 6. Attached as Exhibit “1” is a true and correct copy of Walmart’s Notice of Taking Plaintiff’s Deposition on December 3, 2019 Xs Attached as Exhibit “2” is a true and correct copy of Plaintiff’s objections to Walmart’s Notice of Taking Plaintiff’s Deposition on December 3, 2019. 8. Attached as Exhibit “3” is a true and correct copy of Walmart’s Amended Notice of Taking Plaintiff’s Deposition noticed for January 3, 2020. 9. Attached as Exhibit “4” is a true and correct copy of Walmart counsel’s meet and confer letter memorializing defense counsel’s efforts to obtain dates when Plaintiff was available for deposition. 10. ~~ When Plaintiff’s counsel failed to respond to meet and confer efforts by Walmart’s counsel, on January 10, 2020, Walmart served a Second Amended Notice of Taking Plaintiff’s Deposition notice for January 27, 2020. I; Attached as Exhibit “5” is a true and correct copy of Walmart’s Second Amended Deposition Notice. 12. Several days before Plaintiff’s January 27, 2020 deposition was scheduled to begin, Walmart counsel’s office attempted to contact Plaintiff’s counsel to confirm that Plaintiff would be appearing at his deposition on January 27, 2020. It was around this time Walmart’s counsel learned Plaintiff’s counsel was seeking to withdraw as counsel. 13. Attached as Exhibit “6” are true and correct copies of emails from defense counsel’s office to Plaintiff’s counsel. 1 2 DECLARATION OF JANICE Y. WALSHOK IN SUPPORT OF DEFENDANT WALMART INC.’S MOTION TO COMPEL PLAINTIFF’S DEPOSITION AND REQUEST FOR SANCTIONS FROM PLAINTIFF oS ~~ O N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2354-3016 14. To date, Walmart has not received any responses from Plaintiff to its discovery nor has Plaintiff made himself available for deposition. 15. Walmart’s counsel was recently advised by Plaintiff’s counsel that he was withdrawing as counsel, which is set for hearing on February 28, 2020. 16. Walmart has incurred $60 in filing fees to file each of its Motions to Compel. In addition, Walmart’s counsel incurred approximately two hours to prepare each motion at an hourly rate of $175. Walmart will incur additional time and fees to travel and attend the hearing, and argue each of the four discovery motions. Walmart is seeking $410 for each discovery motion for a total of $1,640 ($1,400 in fees + $240 filing fees). I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 7* day of February, 2020 at San Diego, California. AMUNLR Janice Y. Walshok, Esq. 3 DECLARATION OF JANICE Y. WALSHOK IN SUPPORT OF DEFENDANT WALMART INC.”S MOTION TO COMPEL PLAINTIFF’S DEPOSITION AND REQUEST FOR SANCTIONS FROM PLAINTIFF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2354-3016 Andrew N. Kohn, Esq., SBN 166385 Janice Y. Walshok, Esq., SBN 261098 PETTIT KOHN INGRASSIA LUTZ & DOLIN PC 11622 El Camino Real, Suite 300 San Diego, CA 92130 Telephone: (858) 755-8500 Facsimile: (858) 755-8504 E-mail: akohn@pettitkohn.com jwalshok@pettitkohn.com Attorneys for Defendant WALMART INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO BOOKER GAULT JR., an individual, CASE NO.: 37-2019-00040281-CU-PO-CTL Plaintiff, NOTICE OF TAKING THE DEPOSITION V. OF PLAINTIFF BOOKER GAULT, JR. WALMART INC., a Delaware corporation; and DOES 1 to 50, Inclusive, Dept.: . C-69 Judge: Katherine Bacal Defendants. Filed: August 2, 2019 Trial: Not Set TO PLAINTIFF AND HIS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that pursuant to California Code of Civil Procedure 2020.010, et seq. and 2025.010, ef seq., WALMART INC., (“Defendant”) will take the deposition of Plaintiff BOOKER GAULT, JR., (“Deponent”) on Tuesday, December 3,2019 at 10:00 a.m. The deposition will take place at PETTIT KOHN INGRASSIA LUTZ & DOLIN, located at 11622 El Camino Real, Suite 300, San Diego, California, 92130; Telephone: (858) 755-8500. The deposition will be taken before such notary public, judge, or other officer authorized to administer oaths, or such person appointed by the court who is present at the specified time and place. If the deposition is not completed on the date set out, the taking of the deposition will be continued from day to day thereafter, except for Sundays and holidays, at the same place until completed, before a qualified and certified court reporter. 1 NOTICE OF TAKING THE DEPOSITION OF PLAINTIFF BOOKER GAULT, JR. Exhibit 1 4 oS ~~ O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2354-3016 Notice is further given that if an interpreter is required to translate testimony, notice of the language and dialect must be provided to Defendant at least five working days prior to the date of the scheduled deposition. Pursuant to California Code of Civil Procedure section 2025.220(a)(5)(6), Defendant reserves the right, to videotape the deposition in addition to recording the testimony by stenographic method before a certified court reporter present at said time and place. Defendant also reserves the right to introduce and use the videotape at the time of trial. PLEASE NOTE that the Deponent and his attorney, jointly and severally, are responsible for any cancellation fees charged (including, but not limited to, the court reporter, videographer, and/or interpreter), if notice of cancellation is not provided to the noticing party, in writing, at least three (3) business days prior to the deposition date noticed herein. PETTIT KOHN INGRASSIA LUTZ & DOLIN PC Dated: October 17,2019 By: Jun Wae——— gadiew N. Kohn, Esq. Janice Y. Walshok, Esq. Attorneys for Defendant WALMART INC. 2 NOTICE OF TAKING THE DEPOSITION OF PLAINTIFF BOOKER GAULT, JR. Exhibit 1 5 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2354-3016 PROOF OF SERVICE Booker Gault, Jr. v. Walmart Inc.. San Diego Superior Court Case No. 37-2019-00040281-CU-PO-CTL I, the undersigned, declare that: I am and was at the time of service of the papers herein, over the age of eighteen (18) years and am not a party to the action. I am employed in the County of San Diego, California, and my business address is 11622 El Camino Real, Suite 300, San Diego, California 92130. On, October 17,2019, I caused to be served the following documents: e NOTICE OF TAKING THE DEPOSITION OF PLAINTIFF BOOKER GAULT, JR. [ 1] BY FACSIMILE TRANSMISSION (Code Civ. Proc. §§ 1013(e)-(f)): From fax number (858) 755-8504 to the fax numbers listed below. The facsimile machine I used complied with Cal. Rules of Court, rule 2.306 and no error was reported by the machine. I caused the machine to print a transmission record, a copy of which will be maintained with the document(s) in our office. [X] BY MAIL: By placing a copy thereof for delivery in a separate envelope addressed to each addressee, respectively, as follows: [X] BY FIRST-CLASS MAIL (Code Civ. Proc. §§ 1013(a)-(b)) [ 1 BY OVERNIGHT DELIVERY (Code Civ. Proc. §§ 1013(c)-(d)) [ 1] BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED (Code Civ. Proc. §§ 1013(a)-(b)) Daniel Azizi, Esq. Downtown LA Law Group 601 North Vermont Avenue Los Angeles, CA 90004 Tel: (213) 389-3765 Fax: (877) 389-2775 Email: daniel@downtownlalaw.com Attorney for Plaintiff BOOKER GAULT JR. I am readily familiar with the firm’s practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with the United States Postal Service on that same day with postage thereon fully prepaid at San Diego, California, in the ordinary course of business. I am aware that service is presumed invalid if postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws of the State fornia that the foregoing is true and correct. Executed on, October 17, 2019, at San Diego, California. CL Wp 00 Carla 3 NOTICE OF TAKING THE DEPOSITION OF PLAINTIFF BOOKER GAULT, JR. Exhibit 1 6 LO 0 3 n n B W ND RN N N N N N N N N N = ® J x G K 3 0 =~ 3S 8 » 9 a a r » bb =~ oS DANIEL AZIZI, ESQ. (SBN 268995) CHRISTOFFER GADDINI, ESQ. (SBN 305661) DOWNTOWN L.A. LAW GROUP, LLP 601 North Vermont Avenue Los Angeles, California 90004 Telephone: (213)389-3765 Facsimile: (877)389-2775 Email: christoffer@downtownlalaw.com Attorneys for Plaintiffs, BOOKER GAULT, JR. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO BOOKER GAULT JR, an individual. ) Case No.: 37-2019-00040281 Lo. ) Assigned for All Purposes to Dept. C-69 Plaintiff, ) Honorable, Katherine Bacal ) y PLAINTIFF’S OBJECTION TO V. ) DEFENDANT’S NOTICE OF TAKING WALMART, INC., a Delaware corporation; ) DEPOSITION and DOES 1 TO 50, inclusive. ) ) Defendants. ) ) TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD HEREIN: COMES NOW Plaintiff BOOKER GAULT, JR. and hereby objects to the taking of his deposition as noticed for December 3, 2019 at 10:00 a.m.at Pettit Kohn Ingrassia Lutz & Dolin, located at 11622 El Camino Real, Suite 300, San Diego, California 92130, (310) 755-8500, on the following grounds: 1. Plaintiff and Plaintiff's counsel are not available on the date and time unilaterally set by Defendant as the deposition was noticed without prior confirmation of Plaintiff and Plaintiff’s counsel’s availability. 1H in 1 PLAINTIFF'S OBJECTION TO DEFENDANT’S NOTICE OF TAKIN G DEPOSITION Exhibit 2 7 © © 3 O&O Ln H W o N N N ND N N N N J 5 0 KR B O D N S © ® a9 a a R » 0 = o 2. Mr. Gaddini is currently in trial in San Bernardino, CA. Trial is expected to go until next week. — Dated: November 19, 2019 a DOWNTOWN EATL GROUP, LLP % } Christoffer Gaddini, Esq. Attorneys for Plaintiff, BOOKER GAULT, JR. 2 PLAINTIFE’S OBJECTION TO DEFENDANT’S NOTICE OF T AKING DEPOSITION Exhibit 2 8 OO 0 NN O N n n BR W N ee N N R RN ND N N N N N = m s PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES. I am employed in the County of Los Angeles, State of California. Iam over the age of eighteen (18) and not a party to the within action. My business address is 601 North Vermont Avenue, Los Angeles, California 90004. On November 19, 2019, I served the following document described as: PLAINTIF F'S OBJECTION TO DEFENDANT’S NOTICE OF TAKING DEPOSITION, by placing a true copy thereof enclosed in a sealed envelope and served in the manner and/or manners described below to each of the parties herein and addressed as below: SEE ATTACHED SERVICE LIST [X] BYMAIL: Iam familiar with this 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 Los Angeles, California in the ordinary course of business. I am aware that on motion of the party, 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. [] BY PESONAL SERVICE: I caused such envelope to be delivered by hand to the offices of the address(es). [1] BY OVERNIGHT COURIER: I placed a true and correct copy of the above-reference d document(s) in a sealed envelope and caused such envelope to be delivered via overnight to the addressee(s) designated. [1] BY FACSIMILE: I transmitted said document via facsimile to the office of the addressee(s) at the facsimile number(s) listed above, pursuant to California Rules of Court 2.306. The number of the fax machine I used was (877) 389-2775, which, reported the transmission was complete and without error. Pursuant to Rule 2.306(h), I caused the machine to print a transmission record which indicates the date and time of transmissi on, of which a copy is attached hereto. [1] BY ELECTRONIC MAIL: | caused said document(s) to be transmitted to the email address(es) of the addressee(s) designated pursuant to CCP § 1010.6. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on November 19, 2019, at Los Angeles, California. Loch tl adh Elizabeth Vélez 3 PLAINTIFF'S OBJECTION TO DEFENDANT’S NOTICE OF T AKING DEPOSITION Exhibit 2 9 GI OO 0 aN O N un Bb 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 at 28 SERVICE LIST Andrew N. Kohn, Esq. Janice Y. Walshok, Esq. PETTIT KOHN INGRASSIAN LUTZ & DOLIN PC 11622 El Camino Real, Suite 300 San Diego, California 92130 Telephone: (858) 755-8500 Facsimile: (858) 755-8504 Email: akohn@pettitkohn.com Jwalshok@pettitkohn.com Attorneys for Defendant: WALMART INC. 4 PLAINTIFF'S OBJECTION TO DEFENDANT’S NOTICE OF T AKING DEPOSITION Exhibit 2 10 1 Andrew N. Kohn, Esq., SBN 166385 Janice Y. Walshok, Esq., SBN 261098 2 PETTIT KOHN INGRASSIA LUTZ & DOLIN PC 11622 El Camino Real, Suite 300 3 San Diego, CA 92130 Telephone: (858) 755-8500 4 Facsimile: (858) 755-8504 E-mail: akohn@pettitkohn.com 5 jwalshok@pettitkohn.com 6 Attorneys for Defendant WALMART INC. 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SAN DIEGO 10 11 BOOKER GAULT JR., an individual, CASE NO.: 37-2019-00040281-CU-PO-CTL 12 Plaintiff, AMENDED NOTICE OF TAKING THE 13 v. DEPOSITION OF PLAINTIFF BOOKER GAULT, JR. 14 WALMART INC., a Delaware corporation; and DOES 1 to 50, Inclusive, 15 Dept.: . C-69 Defendants. Judge: Katherine Bacal 16 Filed: August 2, 2019 Trial: Not Set 17 18 | TO PLAINTIFF AND HIS ATTORNEYS OF RECORD: 19 PLEASE TAKE NOTICE that pursuant to California Code of Civil Procedure 2020.010, 20 || et seq.and 2025.010, et seq., WALMART INC., (“Defendant”) will take the deposition of 21 | Plaintiff BOOKER GAULT, JR., (“Deponent”) on Friday, January 3, 2020, at 11:00 a.m. The 22 || deposition will take place at the offices of Pettit Kohn Ingrassia Lutz & Dolin, located at 11622 23 | El Camino Real, Suite 300, San Diego, California, 92130; Telephone: (858) 755-8500. 24 The deposition will be taken before such notary public, judge, or other officer authorized 25 | to administer oaths, or such person appointed by the court who is present at the specified time and 26 | place. If the deposition is not completed on the date set out, the taking of the deposition will be 27 | continued from day to day thereafter, except for Sundays and holidays, at the same place until 28 | completed, before a qualified and certified court reporter. 1 AMENDED NOTICE OF TAKING THE DEPOSITION OF PLAINTIFF BOOKER GAULT, JR. 2354-3016 Exhibit 3 11 OO 0 3 A 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2354-3016 Notice is further given that if an interpreter is required to translate testimony, notice of the language and dialect must be provided to Defendant at least five working days prior to the date of the scheduled deposition. Pursuant to California Code of Civil Procedure section 2025.220(a)(5)(6), Defendant reserves the right, to videotape the deposition in addition to recording the testimony by stenographic method before a certified court reporter present at said time and place. Defendant also reserves the right to introduce and use the videotape at the time of trial. PLEASE NOTE that the Deponent and his attorneys, jointly and severally, are responsible for any cancellation fees charged (including, but not limited to, the court reporter, videographer, and/or interpreter), if notice of cancellation is not provided to the noticing party, in writing, at least three (3) business days prior to the deposition date noticed herein. PETTIT KOHN INGRASSIA LUTZ & DOLIN PC uma Wigho / Andrew N. Kohn, Esq. Janice Y. Walshok, Esq. Attorneys for Defendant WALMART INC. Dated: December 6, 2019 By 2 AMENDED NOTICE OF TAKING THE DEPOSITION OF PLAINTIFF BOOKER GAULT, JR. Exhibit 3 12 ~ nn Bs N 0 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2354-3016 PROOF OF SERVICE Booker Gault, Jr. v. Walmart Inc.. San Diego Superior Court Case No. 37-2019-00040281-CU-PO-CTL I, the undersigned, declare that: I am and was at the time of service of the papers herein, over the age of eighteen (18) years and am not a party to the action. I am employed in the County of San Diego, California, and my business address is 11622 El Camino Real, Suite 300, San Diego, California 92130. On, December 6, 2019, I caused to be served the following documents: e AMENDED NOTICE OF TAKING THE DEPOSITION OF PLAINTIFF BOOKER GAULT, JR. [ 1] BYFACSIMILE TRANSMISSION (Code Civ. Proc. §§ 1013(e)-(f)): From fax number (858) 755-8504 to the fax numbers listed below. The facsimile machine I used complied with Cal. Rules of Court, rule 2.306 and no error was reported by the machine. I caused the machine to print a transmission record, a copy of which will be maintained with the document(s) in our office. [X] BY MAIL: By placing a copy thereof for delivery in a separate envelope addressed to each addressee, respectively, as follows: [X] BY FIRST-CLASS MAIL (Code Civ. Proc. §§ 1013(a)-(b)) [ 1] BY OVERNIGHT DELIVERY (Code Civ. Proc. §§ 1013(c)-(d)) [ 1] BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED (Code Civ. Proc. §§ 1013(a)-(b)) Daniel Azizi, Esq. Downtown LA Law Group 601 North Vermont Avenue Los Angeles, CA 90004 Tel: (213) 389-3765 Fax: (877) 389-2775 Email: daniel@downtownlalaw.com Attorney for Plaintiff BOOKER GAULT JR. I am readily familiar with the firm’s practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with the United States Postal Service on that same day with postage thereon fully prepaid at San Diego, California, in the ordinary course of business. Iam aware that service is presumed invalid if postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on, December 6, 2019, at San Diego, California. ether Carla Galleta 3 AMENDED NOTICE OF TAKING THE DEPOSITION OF PLAINTIFF BOOKER GAULT, JR. Exhibit 3 13 Janice Y. Walshok, Esq. P E' ] ir | 'T [ "KOH N 11622 EI Camino Real, Suite 300 San Diego, California 92130-2051 (858) 755-8500 Tel. PETTIT KOHN INGRASSIA LUTZ & DOLIN (858) 755-8504 Fax walshok@pettitkohn.com January 10, 2020 VIA FACSIMILE AND U.S. MAIL Christoffer M. Gaddini, Esq. Downtown LA Law Group 601 North Vermont Avenue Los Angeles, CA 90004 Fax: (877) 389-2775 Re: Gault Jr., Booker v. Walmart Inc. Our File No.: 2354-3016 SECOND REQUEST Dear Counsel: To date, you have failed to provide new dates for Plaintiff’s deposition which your office has twice taken off calendar twice. Plaintiff’s depositions were previously noticed for December 3, 2019 and January, 2020. To date, we have not received any response regarding alternate dates on which Plaintiff and your office are available for deposition. We are, therefore, noticing the deposition of Plaintiff for January 27, 2020 at 2 p.m. here in our office. If we do not receive confirmation from your office at least two days before the deposition, we will presume Plaintiff does not intend to appear and we will have no other option, but to involve the Court and compel his deposition. Should you have any questions, do not hesitate to contact me at any time. Thank you. Very truly yours, PETTIT KOHN INGRASSIA LUTZ & DOLIN PC Qaumuies> JANICE Y. WALSHOK JYW:ccg San Diego ¢ Los Angeles ¢ Phoenix ¢ Tucson Exhibit 4 14 H O W Oo RX 9 NN Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2354-3016 Andrew N. Kohn, Esq., SBN 166385 Janice Y. Walshok, Esq., SBN 261098 PETTIT KOHN INGRASSIA LUTZ & DOLIN PC 11622 El Camino Real, Suite 300 San Diego, CA 92130 Telephone: (858) 755-8500 Facsimile: (858) 755-8504 E-mail: akohn@pettitkohn.com jwalshok@pettitkohn.com Attorneys for Defendant WALMART INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO BOOKER GAULT JR., an individual, CASE NO.: 37-2019-00040281-CU-PO-CTL Plaintiff, SECOND AMENDED NOTICE OF TAKING V. THE DEPOSITION OF PLAINTIFF BOOKER GAULT, JR. WALMART INC., a Delaware corporation; and DOES 1 to 50, Inclusive, Dept.: . C-69 Defendants. Judge: Katherine Bacal Filed: August 2, 2019 Trial: Not Set TO PLAINTIFF AND HIS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that pursuant to California Code of Civil Procedure 2020.010, et seq. and 2025.010, et seq., WALMART INC., (“Defendant”) will take the deposition of Plaintiff BOOKER GAULT, JR., (“Deponent”) on January 27, 2020, at 2:00 p.m. The deposition will take place at the offices of Pettit Kohn Ingrassia Lutz & Dolin, located at 11622 El Camino Real, Suite 300, San Diego, California, 92130; Telephone: (858) 755-8500. The deposition will be taken before such notary public, judge, or other officer authorized to administer oaths, or such person appointed by the court who is present at the specified time and place. If the deposition is not completed on the date set out, the taking of the deposition will be continued from day to day thereafter, except for Sundays and holidays, at the same place until completed, before a qualified and certified court reporter. 1 SECOND AMENDED NOTICE OF TAKING THE DEPOSITION OF PLAINTIFF BOOKER GAULT, JR. Exhibit 5 15 H O W N O O 0 3 O Y Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2354-3016 Notice is further given that if an interpreter is required to translate testimony, notice of the language and dialect must be provided to Defendant at least five working days prior to the date of the scheduled deposition. Pursuant to California Code of Civil Procedure section 2025.220(a)(5)(6), Defendant reserves the right, to videotape the deposition in addition to recording the testimony by stenographic method before a certified court reporter present at said time and place. Defendant also reserves the right to introduce and use the videotape at the time of trial. PLEASE NOTE that the Deponent and his attorneys, jointly and severally, are responsible for any cancellation fees charged (including, but not limited to, the court reporter, videographer, and/or interpreter), if notice of cancellation is not provided to the noticing party, in writing, at least three (3) business days prior to the deposition date noticed herein. PETTIT KOHN INGRASSIA LUTZ & DOLIN PC Dated: January 10, 2020 By: Opel "Andrew N. Kohn, Esq. Janice Y. Walshok, Esq. Attorneys for Defendant WALMART INC. 2 SECOND AMENDED NOTICE OF TAKING THE DEPOSITION OF PLAINTIFF BOOKER GAULT, JR. Exhibit 5 16 P W N ~~ O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2354-3016 PROOF OF SERVICE Booker Gault, Jr. v. Walmart Inc.. San Diego Superior Court Case No. 37-2019-00040281-CU-PO-CTL I, the undersigned, declare that: I am and was at the time of service of the papers herein, over the age of eighteen (18) years and am not a party to the action. Iam employed in the County of San Diego, California, and my business address is 11622 El Camino Real, Suite 300, San Diego, California 92130. On, January 10, 2020, I caused to be served the following documents: e SECOND AMENDED NOTICE OF TAKING THE DEPOSITION OF PLAINTIFF BOOKER GAULT, JR. [ ] BY FACSIMILE TRANSMISSION (Code Civ. Proc. §§ 1013(e)-(f)): From fax number (858) 755-8504 to the fax numbers listed below. The facsimile machine I used complied with Cal. Rules of Court, rule 2.306 and no error was reported by the machine. I caused the machine to print a transmission record, a copy of which will be maintained with the document(s) in our office. [X] BY MAIL: By placing a copy thereof for delivery in a separate envelope addressed to each addressee, respectively, as follows: [xX [ [ BY FIRST-CLASS MAIL (Code Civ. Proc. §§ 1013(a)-(b)) BY OVERNIGHT DELIVERY (Code Civ. Proc. §§ 1013(c)-(d)) BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED (Code Civ. Proc. §§ 1013(a)-(b)) e d or b d Daniel Azizi, Esq. Downtown LA Law Group 601 North Vermont Avenue Los Angeles, CA 90004 Tel: (213) 389-3765 Fax: (877) 389-2775 Email: daniel@downtownlalaw.com Attorney for Plaintiff BOOKER GAULT JR. I am readily familiar with the firm’s practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with the United States Postal Service on. that same day with postage thereon fully prepaid at San Diego, California, in the ordinary course of business. Iam aware that service is presumed invalid if postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on, January 10, 2020, g - Diego, California. (lego > 3 SECOND AMENDED NOTICE OF TAKING THE DEPOSITION OF PLAINTIFF BOOKER GAULT, JR. Exhibit 5 17 From: Carla Galleta Sent: Monday, January 27, 2020 10:05 AM To: ‘Elizabeth Valdez' Cc: Janice Walshok; Christoffer@downtownlalaw.com Subject: RE: Gault v. Walmart / Depo of Plaintiff Monday 1/27/20 at 2pm OFF Importance: High Elizabeth, per our conversation this morning. You advised that the deposition of Booker Gault is not going forward as you are unable to get a hold of your client. You also stated that you are hoping to file a Motion to Withdraw as counsel today or tomorrow and would provide a courtesy copy of the motion to me by email. If this does not comport with your understanding, please let me know. From: Carla Galleta Sent: Friday, January 24, 2020 5:45 PM To: christoffer@downtownlaw.com Cc: Elizabeth Valdez ; Janice Walshok Subject: Gault v. Walmart / Depo of Plaintiff Monday 1/27/20 at 2pm Importance: High Counsel, I've tried to reach you a couple time this week to confirm Monday’s deposition of Plaintiff for Monday. To date, | have not heard from your office. Kindly respond as soon as possible if we are confirmed. Thank you! T Carla C. Galleta E T IT OH N Legal Assistant to: RA Janice Y. Walshok, Esq. PETTIT KOHN INGRASSIA LUTZ & DOLIN Hannah M. Vann etti, Eeq. 11622 El Camino Real, Suite 300 Main (858) 755-8500 San Diego, CA 92130 Fax (858) 755-8504 www.pettitkohn.com cgalleta@pettitkohn.com San Diego | Los Angeles | Phoenix | Tucson Best Lawyers BEST LAW FIRMS 2020 E-MAIL CONFIDENTIALITY NOTICE: THE CONTENTS OF THIS E-MAIL MESSAGE AND ANY ATTACHMENTS ARE INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL, OR EXEMPT FROM DISCLOSURE UNDER APPLICABLE FEDERAL OR STATE LAW. IF YOU ARE NOT THE INTENDED RECIPIENT, OR THIS MESSAGE HAS BEEN ADDRESSED TO YOU IN ERROR, PLEASE IMMEDIATELY ALERT THE SENDER BY REPLY E-MAIL AND THEN DELETE THIS MESSAGE AND ANY ATTACHMENT(S). IF YOU ARE NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY USE, DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION OR ANY ATTACHMENT(S) IS STRICTLY PROHIBITED. Exhibit 6 18 OO © N oO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2354-3016 PROOF OF SERVICE Booker Gault, Jr. v. Walmart Inc.. San Diego Superior Court Case No. 37-2019-00040281-CU-PO-CTL I, the undersigned, declare that: I am and was at the time of service of the papers herein, over the age of eighteen (18) years and am not a party to the action. I am employed in the County of San Diego, California, and my business address is 11622 El Camino Real, Suite 300, San Diego, California 92130. On February 7, 2020, I caused to be served the following documents: e NOTICE OF MOTION AND MOTION TO COMPEL PLAINTIFF’S RESPONSES TO FIRST SETS OF: 1) FORM INTERROGATORIES; 2) SPECIAL INTERROGATORIES; 3) REQUESTS FOR PRODUCTION; 4) REQUESTS FOR ADMISSION TO DEEM THEM ADMITTED; AND 5) CORRESPONDING REQUEST FOR SANCTIONS FROM PLAINTIFF e POINTS AND AUTHORITIES IN SUPPORT THEREOF e DECLARATION IN SUPPORT THEREOF e [PROPOSED] ORDER [X] BY MAIL: By placing a copy thereof for delivery in a separate envelope addressed to each addressee, respectively, as follows: [ ] BY FIRST-CLASS MAIL (Code Civ. Proc. §§ 1013(a)-(b)) [X] BY OVERNIGHT DELIVERY (Code Civ. Proc. §§ 1013(c)-(d)) [ | BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED (Code Civ. Proc. §§ 1013(a)-(b)) Daniel Azizi, Esq. Downtown LA Law Group 601 North Vermont Avenue Los Angeles, CA 90004 Tel: (213) 389-3765 Fax: (877) 389-2775 Email: daniel@downtownlalaw.com Attorney for Plaintiff BOOKER GAULT JR. [ am readily familiar with the firm’s practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with the United States Postal Service on that same day with postage thereon fully prepaid at San Diego, California, in the ordinary course of business. I am aware that service is presumed invalid if postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on February 7, 2020, at San Diego, California. PROOF OF SERVICE
