Free Response in Opposition to Motion - District Court of California - California

Case 3:07-cv-02301-JLS-POR

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Lynn Hubbard III, SBN 69773 Scottlynn J Hubbard, IV, SBN 212970 Law Offices of Lynn Hubbard 12 Williamsburg Lane Chico, CA. 95926 Telephone: (530) 895-3252 Facsimile: (530) 894-8244 Attorneys for Plaintiff, A.J. OLIVER

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

) ) ) ) Plaintiff, ) ) v. ) ) ) RALPHS GROCERY COMPANY ) dba FOOD 4 LESS #780; CYPRESS ) ) CREEK CO., LP dba PTC ) INVESTMENTS COMPANY, ) ) ) ) Defendants. ) ) A.J. OLIVER,

Case No. 07cv2301 JLS (POR) Plaintiff's Opposition to Defendant Ralphs Grocery Company's Motion for Sanctions Pursuant to FRCP 37(d) Date: August 21, 2008 Time: 1:30 p.m. Ctrm: H Magistrate Judge Louisa S. Porter

Oliver v. Ralphs Grocery Company, et al, Case No. 07cv2301 JLS (POR)
Plaintiff's Opposition to Defendant's Motion for Sanctions

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I. INTRODUCTION Defendant Ralphs Grocery Company ("Ralphs") moves this Court for an order granting an award of sanctions in the amount of $1,953.00, pursuant to Federal Rule of Civil Procedure 37(d), because plaintiff failed to appear for a noticed deposition on June 25, 2008, without substantial justification. This motion is without merit for the very simple and straightforward reason that plaintiff A.J. Oliver never received a notice of deposition informing him of said deposition. As will be shown, the facts clearly demonstrate that although Ralphs may have intended to serve a notice of deposition on Oliver, said notice was not served on plaintiff. Simply put, it appears that Ralphs mistakenly served two (2) identical copies of Interrogatories (along with a set of Requests for Production of Documents) on plaintiff, rather than one (1) set of Interrogatories, the Production Requests, and a deposition notice. Because of this clerical mix-up on the part of Ralphs, Oliver was absolutely unaware of the noticed deposition. II. DISCUSSION Oliver Never Received a Notice of Deposition Oliver's substantial justification for his failure to appear at the June 25, 2008 deposition (as required by FRCP 37(d)) is simple: despite Ralphs' assertions, Oliver never received, nor was served, a notice of deposition. Furthermore, the explanation as to why Oliver never received said notice is also quite simple ­ Ralphs mistakenly sent two (2) copies of Interrogatories to Oliver, rather than one copy of Interrogatory requests and a notice of deposition. In other words, clerical error is the culprit here. On May 7, 2008, plaintiff was served, via US Mail, a Request for Production of Documents as well as two identical sets of Interrogatories propounded by Ralphs. Despite Ralphs' assertion, there was no notice for
Oliver v. Ralphs Grocery Company, et al, Case No. 07cv2301 JLS (POR)
Plaintiff's Opposition to Defendant's Motion for Sanctions

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a deposition, nor a proof of service stating that one was served. See Declaration of Kaina Schukei in Support of Plaintiff's Opposition to Defendant's Motion for Sanctions (hereinafter "Schukei Declaration"), ¶3. See also Declaration of Lynn Hubbard, III, in Support of Plaintiff's Opposition to Defendant Ralphs Grocery Company's Motion for Sanctions (hereinafter "Hubbard Declaration"), ¶ 4. This fact is confirmed by the attorney who worked with Mr. Oliver in preparing his responses to the served interrogatories and document requests. Upon receiving the complete case-file on or about May 12, 2008, said attorney, Steven Wedel, noted that there were two (2) identical copies of interrogatories, as well as a copy of document requests, along with attendant proofs of service. See Declaration of Steve Wedel in Support of Plaintiff's Opposition to Defendant's Motion for Sanctions (hereinafter "Wedel Declaration"), ¶¶ 2-3. As he worked through the file to aid Mr. Oliver in preparing his responses, Mr. Wedel noted that a deposition had been previously set for April 30, 2008, but that it had been objected to due to its premature service, coming as it did prior to the required FRCP 26(f) meeting between the parties. See Wedel Declaration, ¶ 5. Nowhere in the file did Mr. Wedel see or observe any new notice of deposition, or correspondence from either defendant's counsel's office or Mr. Oliver's counsel's office mentioning or noting a deposition set for anytime in the future. See id. Finally, Mr. Wedel also noted that there was no mention whatsoever of any upcoming deposition in the discovery that was served, that is, within the interrogatories or document requests themselves. See id. As noted in his Declaration, Mr. Wedel assumed that defendant had merely sent two (2) copies of interrogatories by mistake. See Wedel Declaration, ¶ 3. Furthermore, as the senior paralegal working on this case (and the
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person responsible for maintaining the calendar of plaintiff's counsel's firm), Ms. Kaina Schukei, makes clear, there were a whole series of events that would have been triggered had the discovery served on Oliver on May 7, 2008, actually contained a notice of deposition - events that were not triggered and therefore did not happen: · As defense counsel did not contact the office of plaintiff's counsel to arrange a mutually convenient date and time prior to serving any notice of deposition (as many counsel do out of professional courtesy), Ms. Shukei would have immediately checked the calendar of lead counsel Lynn Hubbard to ensure that he was available for any noticed deposition (see Schukei Declaration, ¶4(a)); · Ms. Schukei would then have contacted Mr. Oliver to check on his availability (see Schukei Declaration, ¶ 4(b)); · Had both Mr. Hubbard and plaintiff been available, Ms. Schukei would have then immediately calendared the date of the deposition, and notified Mr. Hubbard of the noticed deposition (see Schukei Declaration, ¶ 4(c)); · Ms. Schukei would then have sent a letter to Mr. Oliver informing him of the deposition, and its date, time, and location (see Schukei Declaration, ¶ 4(d)); · Ms. Schukei was also aware that the previous notice of deposition, set for April 30, 2008, had been set to occur in defense counsel's offices in Irvine, California, a considerable distance from plaintiff's residence in Imperial Beach, California, making any such appearance difficult as Mr. Oliver cannot drive. Ms. Schukei would therefore have immediately sent a letter in response to the noticed deposition objecting to its location (see Schukei Declaration, ¶ 4(e)); · Finally, Ms. Schukei was further aware that defense counsel had, in
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Plaintiff's Opposition to Defendant's Motion for Sanctions

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the past (and in other cases), noticed depositions to occur in facilities that were not accessible, and, again, Ms. Schukei would have therefore immediately sought to ensure that the location chosen by defense counsel was in fact accessible (see Schukei Declaration, ¶ 4(f)). Yet, not one of these events occurred for the simple reason that no notice of deposition was included in the discovery propounded by defendant and served on plaintiff on May 7, 2008. See also Hubbard Declaration, ¶¶ 3, 6-7. 1. The Extension Request & Correspondence Defendant avers that when plaintiff sought an extension of time to respond to the interrogatories and document requests (as plaintiff did, on or about June 4, 2008), said extension was granted on the condition that plaintiff answer the discovery with meaningful responses (and not boilerplate objections) so that they could be used at the upcoming deposition. See Declaration of Melissa Reilly in Support of Defendant Ralph Grocery Company's Motion for Sanctions Under Rule 37(d) (hereinafter "Reilly Declaration"), ¶ 2. The implication is that this concern was forwarded to plaintiff's office as a condition of the extension, and that it was understood as such. See id. However, this assertion is disputed by the legal assistant from Mr. Hubbard's office who called defense counsel's office to request the extension, Ms. Merry Lowe. Ms. Lowe called defense counsel's office on or about June 4, 2008, to request the extension, and spoke with defense counsel's assistant, Ms. Reilly, See Declaration of Merry M. Lowe in Support of Plaintiff's Opposition to Defendant's Motion for Sanctions (hereinafter "Lowe Declaration"), ¶¶ 4-5. The extension was granted, and at no time was said extension made contingent upon any upcoming
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deposition, and, indeed, Ms. Reilly never even mentioned any upcoming deposition. Indeed, had an upcoming deposition been mentioned, Ms. Lowe, a legal assistant of 17 years, would have checked Mr. Hubbard's calendar to insure he had ample time to review Mr. Oliver's discovery responses prior to any noticed deposition. See Lowe Declaration, ¶¶, 1, 67. As no deposition was mentioned, Ms. Lowe did not do this. Finally, Ralphs points to correspondence between the parties to bolster its assertion that Oliver was aware of the deposition on June 25, 2008. See Declaration of Michael J. Chilleen in Support of Defendant Ralph Grocery Company's Motion for Sanctions Under Rule 37(d) (hereinafter "Chilleen Declaration"), ¶¶ 9-11, and Exhibits C-E, attached thereto. However, an examination of these letters shows that none of them ­ even those from defense counsel ­ mention any deposition set for June 25, 2008. Instead, they refer repeatedly to "discovery," which is not unusual since the correspondence deals primarily with Mr. Hubbard's objection that the discovery was premature. There is nothing untoward here: from Mr. Hubbard's perspective, the referrals to "discovery" made in Mr. Chilleen's letters refers to the interrogatories and document requests served on plaintiff on May 7, 2008, and cannot possibly refer to any deposition for the simple fact that Mr. Hubbard's office never received a notice of deposition; from Mr. Chilleen's perspective, the references to "discovery" encompasses the notice of deposition that he assuemed (albeit mistakenly) was properly served on plaintiff. Tellingly, the letter forwarded by Mr. Hubbard to Mr. Chilleen thanking defense counsel for the extension of time to respond to discovery (see Chilleen Declaration, Exhibit E) makes no mention of said extension being conditioned on any upcoming deposition.
Oliver v. Ralphs Grocery Company, et al, Case No. 07cv2301 JLS (POR)
Plaintiff's Opposition to Defendant's Motion for Sanctions

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counsel to Mr. Hubbard making it clear ­ and for purposes of putting it on the record, a standard legal practice in such situations ­ that the extension was granted solely on the condition that Mr. Oliver answer with meaningful responses so that said responses could be used at the upcoming deposition. In short, plaintiff's counsel was absolutely unaware of any noticed deposition for the very straight forward reason that defendant mistakenly served two (2) copies of interrogatories with the document requests, rather than a copy of the notice of deposition. None of the "evidence" proffered by defendant undermines this fact in any way. Indeed, the facts as presented here by plaintiff are absolutely supported by the letters that defendant has included as exhibits in its motion; they are absolutely consistent with the simple notion that for Mr. Hubbard, "discovery" meant interrogatories and document requests, while for Mr. Chilleen "discovery" meant interrogatories, document requests, and a deposition notice that he was unaware had never actually been served on plaintiff. In summary, plaintiff has substantial justification for not appearing at the June 25, 2008, deposition, indeed, the most substantial justification one can have: he was unaware of it. Therefore, Mr. Oliver respectfully requests that this Court deny defendant's motion. III. CONCLUSION Ralphs' motion is without merit. There is no "hiding the ball" here. Instead, due to an apparent clerical mistake, defendant served plaintiff with two (2) copies of interrogatories rather than the intended notice of deposition. As a result, Mr. Oliver and his counsel were completely unaware that a deposition had even been set. To that end, therefore, plaintiff respectfully requests that this Court deny defendant's motion.
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Plaintiff's Opposition to Defendant's Motion for Sanctions

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Oliver v. Ralphs Grocery Company, et al, Case No. 07cv2301 JLS (POR)
Plaintiff's Opposition to Defendant's Motion for Sanctions

Dated: July 31, 2008

LAW OFFICES OF LYNN HUBBARD /s/ Lynn Hubbard, III LYNN HUBBARD, III Attorneys for Plaintiff, A.J. Oliver

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