E-CLASS PROBLEM TWO E-CLASS
Assume that the Demurrer is overruled. Unlike Problem One, you will "switch hats" to represent plaintiffs Pam and Paul in Problem Two (no conflict of interest, of course).
Facts: During the discovery stage of this law suit, plaintiffs' counsel previously sent interrogatories to defendants Dan and Widgetcorp. That set of Interrogatories included a question about any witnesses, known to the defendants, who have knowledge about the events mentioned in the Complaint. Dan's Answers to Interrogatories list an individual named Wally Witness. The defense law firm then decides to take the deposition of Wally Witness. After he is sworn in by the deposition court reporter, the defendants' lawyer asks Wally several questions (Q), which Wally answers (A). This exercise is designed to expose you to some practice problems, in addition to how to do a particular motion.
The portion of the deposition testimony, dealing with Wally's being at
the deli, is as follows (asterisks indicate deletion of some preliminary
deposition questions and answers, e.g., defense counsel's identifying the
deponent for the record, ensuring that Wally recognizes why he is testifying,
and any end-of-deposition stipulations):
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DEPOSITION OF WALLY WITNESS
* * *
Q: Why were you in the deli on that day?
A: Eat there all the time--it's tubular!
Q: And were you eating there on that day? I'd like to know
how long you were there on that day.
A: Oh yeah. Like, the food's dynabitchin'.
Q: Reporter: Mr. Witness, could you spell that? (and then Counsel,
after going "off the record" and returning to the recorded proceedings:]
Let the record reflect that Mr. Witness considers the food at Dan's Deli
to be very good. I will now resume the questioning of the deponent.
Q: Do you know either of the plaintiffs, whom we briefly discussed
earlier in this deposition?
A: Well, I know Pat--she's a student in the law school. Can't keep
my eyes off of her, but I guess she's just not interested in us undergraduate
surfer types.
Q: O.k., I understand. Now, Mr. Witness--may I call you Wally?
A: Cool.
Q: Wally, have you ever spoken with Pat?
A: Only in my dreams.
Q: In other words, you don't personally know her?
A: Love to, but uh, uh.
Q: Wally, could you please respond to the rest of my questions with
either a "yes" or a "no?"
A: Like, sure.
Q: Now look, you bumbling...excuse me. As I was saying, Wally, what
did you observe?
Objection. (by plaintiffs' counsel).
Q: Oh yes, what I meant was, was Pat alone when she ate at the Deli?
A: No.
Q: Who was with her?
A: I don't know, but he's one lucky dude.
* * * (Note: at this point in the depo, Wally's answers clearly describe
Paul, in a way that would establish Pat and Paul as being the two individuals
sitting next to Wally in the deli, on the day that they allegedly got sick
from the Edible Widgets.) * * *
Q: What did they say?
A: Like, I can't answer that with just a "Yes" or a "No,"
like you just told me to do--don't want to sound like I'm bumbling.
Q: Ever think about law school? No, strike that. Wally, it's o.k.
to answer as fluidly as you wish. Most of the time, however, I will try
to ask you "Yes" or "No" questions. O.k.?
A: Does "fluid" mean like when I'm in a really gnarly tube?
Q: No (long pause)--I'm sorry. Strike the word "fluid."
What I meant was that you should feel free to fully answer my deposition
questions. Now, let's get on with what you have to say about the facts of
this case. What did Pat and Paul say, after they sat down next to you in
the deli?
A: They ordered Edible Widgets, and sat at a nearby table. I then
saw Pat smile and say to her lunch companion, "I'm sick of discussing
widgets in our classes. I ought to get sick of Edible Widgets so that Dan's
Deli will remove them from the menu. I could make a big splash in legal
education if I claimed to be the first law student to get sick while attempting
to digest a widget. If the Deli refuses to remove those ridiculous Edible
Widgets from the menu, I ought to sue to close the place."
Q: Did Paul say anything at that moment?
A: Yeah. He smiled back and said "Hey, what a hypo! We could
enter the realm of the rich and famous by implementing your delicious plot!"
Q: Then what happened?
A: They were laughing, real loud. When they saw that I was looking,
Pat and her friend looked at me, lowered their voices, and began to speak
more quietly. Sounded like they were then discussing some prof at the law
school, who thinks he's cute with his nutty humor. It was obvious that they
were trying to rip off the deli, just 'cause they think they're big shot
law students.
* * *
More Facts: During the depositions of the plaintiffs, they testified that they were in the deli on the day in question. They also admitted that they sat next to Wally Witness. There were no depositions of medical personnel, because the plaintiffs recovered without having to see a doctor. Wally is thus the only witness who can testify, other than the plaintiffs, about liability or damages.
Sometime after completing Wally's deposition, the defense files a Motion for Summary Judgment, serving a copy of it by mail on the plaintiffs, twenty-eight days before trial. The defendants include the following in the motion: the charging allegations of the complaint, and Wally's above deposition testimony. The defendants' argument is that Pat and Paul fabricated their food poisoning sickness, for the purpose of filing a frivolous law suit--as evinced by Wally's testimony, and the lack of any medical witnesses (i.e., no depositions available from any doctor or other health care professional regarding their illness.).
Assignment: Prepare an Opposition to Motion for Summary Judgment, on behalf of plaintiffs Pat and Paul--only "Points and Authorities" are required for Problem 2. You have the option to be creative about a witness Declaration--in support of your opposition to the defendants' Motion for Summary Judgment--as long as you do not make up new facts which are not contained in the given facts in Problem 2. A Declaration is not required. It is possible to do your opposition, based only on the deposition testimony.
[A separate statement of undisputed facts is not a part of this problem, notwithstanding California Rule of Court 342 (1997 rule, not yet in the annual updates to CRC). I have intentionally provided you with an incomplete record, to minimize the amount of time you would otherwise have to devote to Problem 2. Summary judgment is not a part of the comparative two-unit California course, because California has essentially federalized summary judgment procedure. However, I am interested in your having some experience with the motion for summary judgment, beyond the basic federal civil procedure course.]
Suggested resources: California Code of Civil Procedure, Sec. 437c(a)-(r); California Rules of Court, Rules 342 to 345; Matthew Bender California Forms of Pleading and Practice (Vol. 53) --in stacks; Rutter Group California Practice Guide: Civil Procedure Before Trial (Ch. 10) (available on Library Reserve); West's California Code Forms with Practice Commentaries (in stacks); and Witkin (online in Westlaw database and hardcopy in library stacks).
Due: Midnight, Saturday evening, November 1, 1997 (10th academic week). If you are "ahead," DO NOT submit this motion to me earlier than two weeks after the due date for Prob 1. This limitation will give me time to grade Prob 1, before beginning to grade any early submissions of Prob 2. (I will be imposing a similar limitation for Prob 3.)
Form of submission (for all three problems): see last paragraph
("e-mail only") at the end of Prob 1.
Index
Last rev: 10/19/97