DEFENDANT'S, MARY DAY'S, TRIAL SETTING CONFERENCE STATEMENT
"INTRODUCTION
In order to aid the Court in its decisions concerning the trial setting conference in the above-captioned matter, it is important that the Court be appraised of the current status of the case and of discovery. It is evident that while the Plaintiffs are claiming that they desire an early trial date, their actions belie their words as they have done everything possible to stall and frustrate Defendants' discovery in this matter and Defendants' ability to bring their Motions for Summary Judgment expeditiously.
STATEMENT OF FACTS AND OF THE CASE AND DISCUSSION
When this matter was before the Federal Court, the Defendants' Motion for Summary Judgment were granted as to the federal claim in the action. Federal District Court Judge Whyte, while granting Defendants' motions as the the federal claim, deferred a decision on the balance of the Motions for Summary Judgment and remanded the case to this Court. A copy of Judge Whyte's Order specifically states that: "The Court notes for the parties the pending matters that need to be brought to the state court for resolution in addition to a request for a trial date:...
6. The parties' respective Summary Adjudication motions involving state law issues."
A copy of Judge Whyte's Order is attached hereto and marked Exhibit A.
At the last case management conference before Judge Rushing of this Court, Judge Rushing admonished the Defendants' counsel to proceed expeditiously with their discovery and the filing of their Motions for Summary Judgment and set a new Trial Setting Conference date. The Defendants have attempted to do so, but have been thwarted and stonewalled by the Plaintiffs in this matter.
On December 19, 2000, DELFINO noticed nine depositions. A copy of DELFINO's Notice of Taking Depositions is attached hereto and marked Exhibit B. As will be noted, the depositions were set for January 4, 5, 8, 9, 10, 11, 12, 16, and 17, 2001. To date, not a single one of those depositions has gone forward due to the Plaintiffs' actions.
Attached hereto and collectively marked Exhibit C are the Plaintiffs' efforts to completely stonewall the taking of any of these depositions. They have brought: Motions to Quash as to the depositions of O'Rourke, Zdasiuk and Aurelio, have simply objected to producing the remainder of the witnesses on various grounds. For instance, the Plaintiffs have objected to the taking of the deposition of Ms. Hibbs. They have objected on the grounds that Ms. Hibbs has no relevant knowledge of the underlying facts and that since the deposition notices went out in December and that Ms. Hibbs is so highly placed in the company, the deposition notice was untimely. At no time with respect to the objections to the depositions did the Plaintiffs attempt to obtain an Order seeking to prevent the depositions from going forward. They, simply refused to submit the witnesses. Indeed, in addition to Ms. Hibbs, the Plaintiffs have, for instance, objected that Mr. Herrera has no relevant knowledge of the underlying facts and again should nt be burdened with a deposition. These claims are absolutely false. In the federal action the Plaintiffs filed an Initial Disclosure setting forth the witnesses and the testimony they expected them to provide in this matter. Just by way of example, Ms. Hibbs and Mr. Herrera are both listed in the intial disclosure. A copy of the Plaintiffs' Initial Disclosure they filed in Federal Court is attached hereto and marked Exhibit D for the Court's reference.
Defendant, DAY, also noticed depositions in this matter, albeit, she was somewhat delayed in doing so. Ms. DAY noticed depositions in this matter, albeit, she was somewhat delayed in doing so. Ms. DAY noticed depositions of five individuals on January 3, 2001.1 A copy of the Notices of Deposition are attached hereto and collectively marked Exhbit E. One of the depositions, the deposition of the person(s) most knowledgeable regarding Plaintiffs' damages was actually a deposition ordered in Federal Court several months prior under Rule 30(b)(6). Rather than produce the witness on the date noticed, Plaintiffs notified Defendants' counsel that Felch, whose deposition was objected to, and Mr. Wright, another deposition noticed by Mr. DELFINO, were the two designees on the damages issue, offering just one day for each of these witnesses, days on which both defense counsel were not available. As to the remaining four depositions of Mr. Fair, Ms. Niehaus, Ms. Mustonen and Mr. Powell, while Ms. DAY's counsel has not yet received objections, there is litttle doubt he will be in receipt of same. This is so because, for instance, with respect to Mr. Fair, he has filed a motion to quash a subpoena duces tecum via Los Angeles counsel since he was posting on the Internet under the alias "million_dollar_mistak". Mr. Fair and Mr. Powell, two of the individuals noticed for deposition by DAY's counsel have both provided depositions in support of Plaintiffs in this matter previously. There is little doubt that Plaintiffs will seek to move the deposition of Mr. Fair to a date after the hearing on his motion to quash.
The short and the long of the issues presented here are that while the Plaintiffs say they want an ealy trial date, they have completely stonewalled the Defendants' efforts to move discovery along quickly and expeditiously so that the Defendants can re-tool their Motions for Summary Adjudication in light of the new allegations in the Third Amended Complaint and file and have them heard. A conservative estimate of rescheduling the depositions currently under attack by Plaintiffs would be that they would be completed some time in mid-March. By the time the deposition transcripts and completed and returned to counsel and the Summary Judgment Motions are therefore re-tooled, it will be at least until April before the Motions for Summary Judgment by Defendants can be brought for hearing sometime in late May. Therefore, the earliest available time for a trial in this matter would be late June.
Defendant, DAY, wishes to apprise the Court and remind the Court that she was not sued as a party in this matter until some nine (9) months after the action had been originally filed. She not only has meritorious defenses to the claims of the Plaintiffs, but can establish that she is not liable under any circumstances with respect to the Plaintiffs' claims. By allowing her to bring her Motion for Summary Judgment on the claims of Plaintiffs, it would greatly shorten the anticipated trial time in this matter and resolve numerous issues including those of alleged conspiracy, etc.
One final matter that the Court must be apprised of is that the matter is not at issue as the Court sustained the Cross-Defendant's demurrers in part allowing Cross-Defendant, DELFINO to amend his Cross-Complaint.
Defendant, MARY DAY, submits this trial setting conference statement in aid of the Court this 18th day January, 2001
RANDALL M. WIDMANN
1. DAY's counsel's father, who is 84 years old, had a stroke during the holidays and had to undergo a carotid artery replacement two days before Christmas. Therefore, counsel was unavailable to set and notice the depositions Ms. DAY desired to take earlier."
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