2013-00147899-CU-AS

Cami Bivert vs. Caterpillar, Inc.

Nature of Proceeding: Motion to Quash Notice of Deposition of John Bivert, and for Protective

Filed By: Wiegmann, Yakov P.

Defendant Deere & Company’s (“Deere”) Motion to Quash Notice of Deposition of
John Bivert and for Protective Order is denied.

Joinders by Defendants Hampton Hydrolics, LLC, ArvinMeritor, Inc., and Caterpillar
Inc. are granted.

Plaintiff alleges that she was exposed to asbestos from work that her father, John
Bivert, performed on farm equipment and vehicles, either as a bystander or from the
dust that her father brought home on his clothes.

Deere seeks an order staying the taking of John Biven’s deposition and quashing the
notice setting the deposition for April 9, 2014. Deere seeks this order to allow the
parties to conduct discovery necessary to determine whether John Bivert is competent
to testify as a witness and, if necessary, obtain a ruling from the Court regarding Mr.
Bivert’s competency or lack thereof; and to determine the appropriate process, if any,
by which Mr. Bivert can be adequately deposed such that defendants are afforded a
full and fair opportunity to conduct discovery and adequately examine him.
The general rule relating to a witness’s competency to testify is: “Except as otherwise
provided by statute, every person . . . is qualified to be a witness and no person is
disqualified to testify to any matter.” (Evid. Code, § 700.) “‘A person is disqualified as a
witness only if he or she is “[i]ncapable of expressing himself or herself
[understandably] concerning the [testimonial] matter” (id., § 701 subd. (a)(1) . . .), or is
“[i]ncapable of understanding the duty of a witness to tell the truth” (id., . . . subd. (a)
(2) . . .).'” (People v. Zambrano, (2007) 41 Cal.4th 1082, 1140.)

Deere seeks a protective order preventing plaintiff’s counsel from limiting the total
duration of John Bivert’s deposition and limiting or preventing defense counsel from
questioning Mr. Bivert in any manner permitted by the CCP and the California
Evidence Code.

The videotaped deposition is intended to be used at trial.

Under CCP section 2025.410(c), the Court has the power to issue an order staying the
taking of a deposition and quashing the deposition notice. In addition, CCP section
2025.420 allows the Court to issue a protective order controlling the deposition
proceedings for good cause shown, including an order “[t]hat the deposition be taken
at a different time.” CCP § 2025.420(b)(2). Good cause exists to postpone the
deposition where one party would gain an unfair advantage from the timing of the
deposition. See PoeschI v. Super Ct.(1964) 229 Cal. App. 2d 383, 386-87. “The taking
of the deposition is stayed pending the determination of this motion.” CCP § 2025.410
(c).

On March 25, 2014, plaintiff served a letter on defendants accompanied by a treating
doctor’s declaration that stated that Mr. Bivert suffered a stroke in 2008 and in
February 2014 and that he should not be deposed for more than two hours and should
be asked only “yes” or “no” questions. (Declaration of Wenchiang Han M.D.) Mr.
Bivert is the only witness who can testify as to the equipment that he worked on and
around throughout his career. Plaintiff offered to provide a declaration or deposition by
written responses, although if, as plaintiff contends, Mr. Bivert cannot write or verbally
answer other than “yes” or “no” it is not clear how he would provide this information for
his declaration or written deposition answers. At this juncture, however, there is no
showing that he cannot express himself intelligibly, or that he is incapable of
understanding the obligation to be truthful in his responses.

Defendants seek to depose Dr. Han and/or obtain John Bivert’s medical records so
that they can be more informed as to his overall ability to testify. Plaintiff states in the
opposition that Dr. Han’s deposition is set for one week prior to this motion, on April
23, 2014. The court agrees with defendants that the current Amended Declaration of
Han does not contain sufficient information from which to conclude that only “yes” or
“no” questions may be asked, since plaintiff contends her father would be able to
provide information to draft a declaration.

Plaintiff contends that defendants want to block the deposition because they know that
Mr. Bivert can testify that he used specific products manufactured by defendants.
Plaintiff contends that there is no evidence that Mr. Bivert is incompetent, as his
strokes do not affect his ability to understand or his short or long term memory, only
his ability to easily communicate. Plaintiff suggests that the deposition go forward and
that if a problem occurs, court intervention may be sought. The Court finds this
suggestion persuasive. On this showing, the Court will not impose a stay on the deposition. The parties shall
meet and confer on the date, time and place of the deposition of Mr. Bivert to begin
within 30 days of this date. There is no total limit to the number of hours, except that
no session shall last more than two hours, unless otherwise agreed. At this time, the
defendants are not limited to asking only “yes” or “no” questions, absent a more
detailed declaration or deposition testimony of Dr. Han explaining why such limited
questioning is required. The Court recognizes that questioning and obtaining answers
may be prolonged, but does not, at this time, perceive that there is an inability to
respond, given sufficient time.

At any party’s request, the court will grant a brief continuance of this motion to allow
the parties to submit additional briefing containing information from the Deposition of
Dr. Han.

The notice of motion does not provide notice of the Court’s tentative ruling system, as
required by Local Rule 1.06(D). Counsel for moving party is directed to contact
counsel for opposing party forthwith and advise counsel of Local Rule 1.06 and the
Court’s tentative ruling procedure. If counsel for moving party is unable to contact
counsel for opposing party prior to hearing, counsel for moving party shall be available
at the hearing, in person or by telephone, in the event opposing party appears without
following the procedures set forth in Local Rule 1.06(B).

The prevailing party shall prepare a formal order for the Court’s signature pursuant to
C.R.C. 3.1312.

Item 11 2013-00147899-CU-AS

Cami Bivert vs. Caterpillar, Inc.

Nature of Proceeding: Motion to Compel 1. Production of Documents 2. Admissions 3. Special

Filed By: Hilliard, Mark J.

Defendant ArvinMeritor, Inc.’s Motion to Compel Further Responses to discovery is
granted.

Plaintiff alleges claims arising out of exposure to asbestos.

On March 3, 2014, the Court ordered plaintiff to provide further responses to discovery
(Form Interrogatories, Special Interrogatories, Requests for Admission, and Requests
for Production). Although Defendant gave plaintiff two extensions of time to respond,
plaintiff provided unverified supplemental responses. The supplemental response to
all of the discovery below was identical as follows:

Plaintiff hereby incorporates by reference all prior responses and
objections. Furthermore, Plaintiff provided timely responses to
ArvinMeritor’s [Corresponding Request], in which she provided any responsive information. Plaintiff was deposed from January 23 through
January 29, 2014. On January 23, 2014, wherein ArvinMeritor was offered,
and accepted on the record, a stipulation that Plaintiff did not have personal
knowledge of any ArvinMeritor products and would not identify ArvinMeritor
products in her deposition {Please see Exhibit B attached hereto).
ArvinMeritor, through its counsel, appeared at Plaintiffs deposition, asked a
total of 5 questions (none of which concerned the matters addressed herein)
and subsequently stipulated that the Plaintiffs deposition is complete {Please
see Exhibit C attached hereto). Plaintiff has no further responsive information.
Plaintiffs father, John Bivert, may have responsive information. John Bivert’s
deposition has been noticed by Plaintiff for April 9, 2014.

Defendant now seeks further responses in addition to monetary, issue, evidence and
terminating sanctions.

Defendant contends that the insufficient responses have hindered its ability to prepare
for the lone product identification witness, plaintiff’s father, John Bivert. whose
deposition is set for April 9, 2014

Form Interrogatories: Granted as to 12.1, 12.2, 12.3, 12.4, 12.5, 12.6, 12.7, and
17.1.
Special Interrogatories: Granted as to Nos. 1,2,3,4,5,7,8,9,10, 11, 12, 13, 14, 15,
16, 17,18,19,20,21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38,
39, 40 and 41.

Plaintiff referred to other discovery responses, which is not permitted. Plaintiff
improperly incorporated prior objections that were deemed deficient by prior court
order, and continues to violate CCP 2030.220. Her reference to the deposition is
irrelevant to her obligation to comply with section 2030.220.

Requests for Production: Granted as to 1-62.
Plaintiff referred to other discovery responses, which is not permitted. Plaintiff
improperly incorporated prior objections that were deemed deficient by prior court
order, and continues to violate CCP 2031.230. Her reference to the deposition is
irrelevant to her obligation to comply with section 2031.230.

Requests for Admission: Granted as to 1-27, 31 – 64.
Plaintiff referred to other discovery responses, which is not permitted. Plaintiff
improperly incorporated prior objections that were deemed deficient by prior court
order, and continues to violate CCP 2033.220. Her reference to the deposition is
irrelevant to her obligation to comply with section 2032.220.

Plaintiff’s opposition states that she does not have the information requested. If so, the
responses must be made without objections and in compliance with her duty to make a
reasonable inquiry, including from her father who she admits has more information
than she does.

The Court rejects plaintiff’s argument that it must rule on objections. No new objections
are raised in this further response and any new objection would be untimely. The
court necessarily rejected the earlier objections when it ordered further responses.

In Reply, defendant states that it did receive a fourth further response after this motion was filed, however the further response was not verified and is not before the court on
this motion.

Monetary sanctions are denied on the ground the notice does not comply with CCP
2023.040. The notice merely requests “In addition, ArvinMeritor seeks reimbursement
costs for having to make this motion.” This is not a hypertechnical defect as argued
by defendant since it does not even specify whether the cost of filing the motion is
sought or the attorneys fees incurred, which are not “costs.”

The motion for issue, evidentiary and terminating sanctions is denied without
prejudice. The imposition of such sanctions would be overly punitive at this juncture.
Moreover, any motion for issue or evidentiary sanction must be accompanied by a
separate statement. CRC 3.1345(7).

Compliance to be without objections on or before May 20, 2014.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.

Item 12 2013-00147899-CU-AS

Cami Bivert vs. Caterpillar, Inc.

Nature of Proceeding: Motion to Quash Third Amended Notice of Taking the Videotaped

Filed By: Pajala, Ulla M.

Defendant Borgwarner Morse Tec Inc.’s Motion to Quash Plaintiff’s Third Amended
Notice of Taking the Videotaped Deposition of Johnny Bivert, or alternatively for a
protective order barring the deposition unless plaintiff can establish his competency
and present ability to recollect is denied.

Joinders by Defendant Hampton Hydrolics, LLC, is granted.

Plaintiff alleges that she was exposed to asbestos from work that her father, John
Bivert, performed on farm equipment and vehicles, either as a bystander or from the
dust that her father brought home on his clothes.

Defendant’s request that the court conduct a preliminary fact hearing under Evidence
Code 403 and 405 about Mr. Bivert’s competency and whether he has personal
knowledge to testify is denied. Defendants will have the opportunity after the
deposition is complete and before it is offered at trial to make any motion they wish to
establish incompetency. The burden to establish incompetency is on the party
challenging the testimony. Adamson v Dept of Social Services (1988) 207 Cal.App.3d
14, 20; People v Augustin (2003) 112 Cal.App.4th 444, 448.

Defendant seeks an order staying the taking of John Biven’s deposition and quashing
the notice setting the deposition for April 9, 2014. Defendant seeks to depose Dr. Han
and possibly to conduct its own IME on Mr. Bivert to determine whether he is
competent to testify and to obtain a ruling from the Court regarding Mr. Bivert’s
competency or lack thereof; and to determine the appropriate process, if any, by which
Mr. Bivert can be adequately deposed such that defendants are afforded a full and fair
opportunity to conduct discovery and adequately examine him.
The videotaped deposition is intended to be used at trial.

Under CCP section 2025.410(c), the Court has the power to issue an order staying the
taking of a deposition and quashing the deposition notice. In addition, CCP section
2025.420 allows the Court to issue a protective order controlling the deposition
proceedings for good cause shown, including an order “[t]hat the deposition be taken
at a different time.” CCP § 2025.420(b)(2). Good cause exists to postpone the
deposition where one party would gain an unfair advantage from the timing of the
deposition. See PoeschI v. Super Ct.(1964) 229 Cal. App. 2d 383, 386-87. “The taking
of the deposition is stayed pending the determination of this motion.” CCP § 2025.410
(c).

On March 25, 2014, plaintiff served a letter on defendants accompanied by a treating
doctor’s declaration that stated that Mr Bivert suffered a stroke in 2008 and in February
2014 and that he should not be deposed for more than two hours and should be asked
only “yes” or “no” questions. (Declaration of Wenchiang Han M.D.) Mr. Bivert is the
only witness who can testify as to the equipment that he worked on and around
throughout his career. Plaintiff offered to provide a declaration or deposition by written
responses, although if, as plaintiff contends, Mr. Bivert cannot write or verbally answer
other than “yes” or “no” it is not clear how he would provide this information for his
declaration or written deposition answers.

Defendant seeks to depose Dr. Han and/or obtain an IME of John Bivert records so
that it can be more informed as to his overall ability to testify. Plaintiff states in the
opposition that Dr. Han’s deposition is set for one week prior to this motion, on April
23, 2014. The court agrees with defendants that the current Amended Declaration of
Han does not contain sufficient information from which to conclude that only “yes” or
“no” questions may be asked, since plaintiff contends her father would be able to
provide information to draft a declaration.

Plaintiff contends that defendants want to block the deposition because they know that
Mr. Bivert can testify that he used specific products manufactured by defendants.
Plaintiff contends that there is no evidence that Mr. Bivert is incompetent, as his
strokes did not affect his ability to understand or his short or long term memory, only
his ability to communicate. Plaintiff suggests that the deposition go forward and that if
a problem occurs, court intervention may be sought.

On this showing, the Court will not impose a stay on the deposition. The parties shall
meet and confer on the date, time and place of the deposition of Mr. Bivert to begin
within 30 days of this date. There is no total limit to the number of hours, except that
no session shall last more than two hours, unless otherwise agreed. At this time, the
defendants are not limited to asking only “yes” or “no” questions, absent a more
detailed declaration or deposition testimony of Dr. Han satisfying the court that such
limited questioning is required.

At any party’s request, the court will grant a brief continuance of this motion to allow
the parties to submit additional briefing containing information from the Deposition of
Dr. Han.

The notice of motion does not provide notice of the Court’s tentative ruling system, as
required by Local Rule 1.06(D). Counsel for moving party is directed to contact counsel for opposing party forthwith and advise counsel of Local Rule 1.06 and the
Court’s tentative ruling procedure. If counsel for moving party is unable to contact
counsel for opposing party prior to hearing, counsel for moving party shall be available
at the hearing, in person or by telephone, in the event opposing party appears without
following the procedures set forth in Local Rule 1.06(B).

The prevailing party shall prepare a formal order for the Court’s signature pursuant to
C.R.C. 3.1312.