Richard Gibbs vs. Sure Haven

Motion to Compel Deposition Oral or Written

Cal. Super. - 4th Dist.May 18, 2015

OO 0 NN O N wn bk W N N O N ND ND N O N N N ND em e m e m e d e d p s e d a p m © N N nn Bh W N = O V N N R Oo Michael A. Hood (SBN 71258) ELECTRONICALLY FILED Erin W. Kendrella (SBN 273504) Superior Court of California, JACKSON LEWIS P.C. CHLAtY =i HrErge 5000 Birch Street, Suite 5000 06/02/2016 at 03:10:00 PM Newport Beach, California 92660 Clerk of the Superior Court Tel: (949) 885-1360 By Giovanni Galon, Deputy Clerk Fax: (949) 885-1380 Email: michael.hood@jacksonlewis.com Email: erin.kendrella@jacksonlewis.com Attorneys for Defendants SURE HAVEN and SOLID LANDINGS BEHAVIORAL HEALTH SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER RICHARD GIBBS IV, an individual, Case No.: 30-2015-00788187-CU-WT-CJC [Assigned for all purposes to the Hon. Judge Plaintiff, James Crandall — Department C33] vs. DEFENDANTS SURE HAVEN AND SOLID SURE HAVEN, a California Corporation; SOLID ) LANDINGS BEHAVIORAL HEALTH’S LANDINGS AND BEHAVIORAL HEALTH, an ) NOTICE OF MOTION AND MOTION TO unknown business entity; and DOES 1 through 20,) ED TO 0 AND inclusive, RESPONSES TO REQUESTS FOR DOCUMENTS; REQUEST FOR MONETARY SANCTIONS AND REIMBURSEMENT OF $3,008.79; AND MEMORANDUM OF POINTS AND AUTHORITIES N a r ” N r ” N e e ” N e ” e e a e ’ Defendants. [Filed concurrently with Declarations of Erin W. Kendrella;, and [Proposed] Order] Date: June 30, 2016 Time: 8:30 a.m. Dept.: C33 Reservation No.: 72384506 Complaint Filed: May 18, 2015 Trial Date: October 24, 2016 rt N r N t a r ss e r a i i e t i e r e t e t ’ e n t ’ “ es r at ’ a ’ o e ’ TO THE HONORABLE COURT AND PLAINTIFF IN PRO PER: PLEASE TAKE NOTICE that on June 30, 2016 at 8:30 a.m., or as soon thereafter as the matter may be heard, in Department C33 of the above entitled Court, located at 700 Civic Center Drive West, Santa Ana, California 92701, Defendants SURE HAVEN and SOLID LANDINGS BEHAVIORAL 1 DEFENDANTS’ MOTION TO COMPEL DEPOSITION OF PLAINTIFF AND REQUEST FOR SANCTIONS H O W L N D Oo ® 3 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HEALTH (collectively “Defendants™) will, and hereby do, move this Court for an Order compelling Plaintiff RICHARD GIBBS IV (“Plaintiff”) to appear for his deposition within 14 days of this court’s order, at the offices of Jackson Lewis P.C. in Newport Beach, to provide verified responses to Defendants’ Requests for Documents served concurrently with the Deposition Notice, and for sanctions in the amount of $3,008.79 against Plaintiff Richatd Gibbs IV pursuant to California Code of Civil Procedure section 2025.450(g). Good cause for this Motion exists because Plaintiff has refused to appear for his properly noticed deposition and Defendants will be irreparably and gravely prejudiced if they cannot take the Plaintiff's deposition and obtain Plaintiff’s supporting documents with sufficient time to allow Defendants to bring a Motion for Summary Judgment. Accordingly, Defendants must obtain an Order from the Court compelling Plaintiff’s deposition and responses to Requests for Production of Documents. Further, sanctions and reimbursement are appropriate in light of Plaintiff’s abuse of the discovery process. This Motion is supported by the accompanying Memorandum of Points and Authorities and Declaration of Erin W. Kendrella, as well as the papers and records on file herein and such other matters as may be submitted at the time of hearing. DATED: June 2, 2016 JACKSON LEWIS P.C. oe JW Kn Michael A. Hood Erin W. Kendrella Attorneys for Defendants SURE HAVEN and SOLID LANDINGS BEHAVIORAL HEALTH 2 DEFENDANTS’ MOTION TO COMPEL DEPOSITION OF PLAINTIFF AND REQUEST FOR SANCTIONS © N N Un ke W N \O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Defendants move this Court for an Order compelling Plaintiff to appear for his deposition and provide verified responses to Requests for Production of Documents. On May 12, 2016 and May 31, 2016, Plaintiff failed to appear for his properly noticed deposition and failed to provide responses to Defendants’ Requests for Production of Documents served concurrently with the deposition notice. This was despite Defendants’ significant efforts to meet and confer in good faith with Plaintiff to schedule the deposition date on a mutually agreeable date for all sides; despite Defendants serving Plaintiff with a deposition notice giving Plaintiff more than one month’s notice and despite Plaintiff’s failure to serve any objections to the notice and document requests. Such misconduct is sanctionable under Code of Civil Procedure section 2025.450(g) and, in fact, the Code requires that sanctions be imposed unless the Court finds that Plaintiff acted with substantial justification. Plaintiff's misconduct in disregarding his obligations under the Civil Discovery Act continues to occur as evidenced by his failure to appear for his properly noticed deposition and must be stopped. Defendants have been and will continue to be unduly prejudiced by Plaintiffs misconduct unless the Court steps in. IL. PROCEDURAL POSTURE Briefly as background, Plaintiff's deposition was initially noticed for November 3, 2015. (Declaration of Erin Kendrella (“Decl. Kendrella), § 2, Exhibit A, Plaintiffs November 3, 2015 Deposition Notice.) On October 14, 2015, Plaintiff’s former counsel served objections that November 3, 2015 was an “inconvenient date” for Plaintiff and his former counsel. (Decl. Kendrella, § 3, Exhibit B, Objections to November 3, 2015 Deposition Notice.) On November 5, 2015, Defendant received Plaintiff’s former counsel’s Motion to be Relieved as Counsel and learned for the first time that Plaintiff was currently serving a sentence in Ventura County Jail. (Decl. Kendrella, § 4, Exhibit C, Plaintiffs Motion to be Relieved as Counsel.) The hearing date for the Motion was December 17, 2015. (/d.) However, on December 11, 2015, Defendant received Plaintiff's Substitution of Attorney that he would be representing himself. (Decl. Kendrella, § 5, Exhibit D, Plaintiff’s Substitution of Attorney.) As a result, the case was delayed until essentially the New Year. (Decl. Kendrella, § 5.) 1 DEFENDANTS’ MOTION TO COMPEL DEPOSITION OF PLAINTIFF AND REQUEST FOR SANCTIONS a NO 0 N O Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Thereafter, having not heard from Plaintiff, Defense counsel attempted to contact Plaintiff in January 2016. (Decl. Kendrella, § 6.) According to Plaintiff’s criminal court docket, he was released from Ventura County Jail on November 30, 2015 to the Dream Center in Los Angeles. (Id) Despite being released on November 30, Plaintiff had made no attempts to contact Defendant. (Id) Defense counsel reached out to the Dream Center and was able.to speak with Plaintiff on January 29, 2016. (Id) During this conversation, Plaintiff conveyed that he wanted to move forward with his case, would be available for his deposition, and stipulated to a trial continuance given the three month delay. (Id) On February 17, 2016, the Court granted the requested trial continence from April 18, 2016 to October 24, 2016. (Decl. Kendrella, § 7, Exhibit E, Court’s Order granting trial continuance.) III. DEFENDANTS’ MEET AND CONFER EFFORTS TO OBTAIN A MUTUALLY CONVENIENT DATE FOR DEPOSITION WERE TO NO AVAIL FORCING DEFENDANTS TO UNILATERALLY SELECT A DATE FOR PLAINTIFE’S DEPOSITION. Throughout February and March, Defense counsel made several attempts to schedule the deposition of Plaintiff on a date convenient for him in the second or third weeks in May 2016. (Decl. Kendrella, § 8, Exhibit F, emails to Plaintiff.) Despite efforts through telephone calls and emails, Defense counsel did not hear back from Plaintiff. (Id) After exhausting these significant efforts to meet and confer with Plaintiff to decide upon a mutually agreeable date for Plaintiffs deposition and having not heard from Plaintiff, Defense counsel unilaterally picked the date of May 12, 2016 date for the deposition and served a Deposition Notice and Request for Production of Documents by email on Plaintiff on March 30, 2016 in compliance with Code of Civil Procedure section 2025.220. (Decl. Kendrella, 4 9, Exhibit G, Plaintiff’s May 12, 2016 Deposition Notice.) The Notice clearly stated that the deposition “will be taken by a certified shorthand reporter” and “may also be recorded by audio and video technology.” Pursuant to the Notice, Plaintiff's deposition was scheduled for May 12, 2016 and gave Plaintiff over 30 days of notice to contact Defense counsel in case the date did not work for him. (Id) The deadline for Plaintiff to serve written objections to the deposition notice was May 9, 2016. No written objections were ever received. (Decl. Kendrella, § 10.) Further, no responses to Defendants’ Requests for Production of Documents was received. (/d.) 1 2 DEFENDANTS’ MOTION TO COMPEL DEPOSITION OF PLAINTIFF AND REQUEST FOR SANCTIONS OO 0 Na O N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defense counsel continued to follow-up with Plaintiff though telephone calls and emails on specifically April 11 and 28, and May 3 to confirm his May 12 deposition. (Decl. Kendrella, § 11, Exhibit H, emails to Plaintiff.) Defense counsel did not receive any replies from Plaintiff but did receive replies from his Case Manager confirming that Plaintiff was receiving the emails. From May 5 to May 12, Defense counsel engaged in meet and confer efforts with Plaintiff’s Case Manager at the Dream Center concerning his deposition. (Decl. Kendrella, § 12, Exhibit I, emails to Plaintiff.) Plaintiff's Case Manager conveyed that Plaintiff would be unavailable to attend his deposition until after June 27 because Plaintiff wanted to focus on his recovery program. (Id) Defense counsel explained that she needed to speak directly with Plaintiff to confirm he would be unable to attend his deposition and to obtain alternative dates for this deposition in May. (Id) Given Defendants’ motion for summary judgment filing deadline of July 11, it was not feasible to conduct Plaintiff’s deposition after June 27. (Id) Plaintiff did not provide alternative dates and did not appear for his May 12, 2016 deposition. (Decl. Kendrella, § 13, Exhibit J, Plaintiff’s Certificate of Non-Appearance for his May 12 Deposition.) After failing to provide alternative dates for his deposition and failing to appear at his May 12, 2016 deposition, Plaintiff telephoned Defense counsel that afternoon and explained he would appear for his deposition on May 31, 2016. (Decl. Kendrella, § 14.) Defendant served Plaintiff with a Deposition Notice and the same Request for Production of Documents on May 17, 2016 for his deposition on May 31, 2016. (Decl. Kendrella, § 15, Exhibit K, Plaintiff's May 31, 2016 Deposition Notice.) Defense counsel emailed Plaintiff on May 18, 23, and 25, 2016 to confirm his May 31, 2016 deposition. (Decl. Kendrella, § 16, Exhibit L, emails to Plaintiff confirming his May 31, 2016 deposition.) In addition, Defense counsel called Plaintiff’s Case Manager on May 24, 2016 to confirm Plaintiff’s May 31, 2016 deposition. (Id) Defense counsel did not receive a response. (Id) The deadline for Plaintiff to serve written objections to the May 31, 2016 deposition notice was May 26, 2016. (Decl. Kendrella, § 17.) No written objections were ever received. (/d.) Further, no responses to Defendants’ Requests for Production of Documents was received. (/d.) On May 31, 2016, Plaintiff failed to appear at his deposition for a second time. (Decl. Kendrella, 9 18, Exhibit M, Plaintiff’s Certificate of Non-Appearance for his May 31 Deposition.) On June 1, 3 DEFENDANTS’ MOTION TO COMPEL DEPOSITION OF PLAINTIFF AND REQUEST FOR SANCTIONS 2 W D OO 0 0 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2016, in accordance with C.C.P. section 2025.450(b)(2), Defense counsel contacted Plaintiff by email to inquire about his nonappearance at his properly noticed deposition. To date, no response has been received. (Decl. Kendrella, § 19, Exhibit N, June 1, 2016 email.) IV. LEGAL ANALYSIS A. An Order Compelling Plaintiff’s Deposition is Appropriate and Warranted Given Plaintiff’s Refusal to Comply with a Properly Issued Deposition Notice. Code of Civil Procedure section 2017.010 states: “Unless otherwise limited by order of the Court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action . . .” Code of Civil Procedure section 2019.010 regarding methods of discovery further provides, “Any party may obtain discovery by one or more of the following methods: (a) Oral and written depositions...” Code of Civil Procedure sections 2025.010 and 2025.210 regarding oral depositions state: Any party may obtain discovery within the scope delineated by...taking in California the oral deposition of any person, including any party to the action... The defendant may serve a deposition notice without leave of Court anytime after that defendant has been served or has appeared in the action, whichever occurs first. Section 2025.280 mandates the binding legal effect on any party served with the proper deposition notice: “[t]he service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action...to attend and to testify...” Similarly, California Rules of Court, Rule 3.1010 regarding oral depositions states: (c) [Party deponent’s appearance] A party deponent must appear at his or deposition in person and be in the presence of the deposition officer. Code of Civil Procedure section 2025.450 authorizes a motion to compel as a result of a party’s failure to appear at a properly noticed deposition. The Civil Discovery Act was meant to speed cases along by encouraging good faith meet and confer between the parties, thus relieving the courts of having to referee every minor discovery dispute, and thereby preserving scarce judicial resources. (See, e.g., Clement v. Alegre (2009) 177 Cal.App.4th 1277 [noting that “Twenty-three years ago, the Legislature enacted the Civil Discovery Act of 1986 (Code Civ. Proc., former § 2016, ef seq.) nl (the Act), a comprehensive revision of pretrial discovery 4 DEFENDANTS’ MOTION TO COMPEL DEPOSITION OF PLAINTIFF AND REQUEST FOR SANCTIONS [ > T O PS E S ] \O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 statutes, the central precept of which is that civil discovery be essentially self-executing.”].) By providing clear rules regarding the discovery to which parties were entitled by statute, the legislation was meant to clarify and simplify the rules governing the discovery process. (Id. at 1287 n.8.) The Clement court noted that “our discovery laws are designed to prevent trial by ambush,” but that appears to be exactly the approach taken by Plaintiff. By obtaining discovery from Defendants while denying them the ability to obtain written discovery responses from Plaintiff and take Plaintiff’s deposition, Plaintiff is apparently aiming to deprive Defendants of the ability to prepare for trial and work up its case. Plaintiff has patently and flagrantly flaunted the basic dictates, and therefore harmed the integrity, of the discovery process. (See Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991 [noting that “misuses of the discovery process include “[f]ailing to respond or to submit to an authorized method of discovery” (Code Civ. Proc. § 2023.010, subd. (d)); “[m]aking, without substantial justification, an unmeritorious objection to discovery” (/d., § 2023.010, subd. (e)); “[m]aking an evasive response to discovery” (Id., § 2023.010, subd. (f)); and “[d]isobeying a court order to provide discovery” (1d, § 2023.010, subd. (g)).”] (emphasis added).) Here, without objection or other explanation, Plaintiff failed to appear for his properly noticed depositions. Plaintiff's refusal to appear at his depositions is a gross violation of the discovery statutes as Plaintiff has not offered any viable reason for not appearing at his deposition. If this discovery abuse persists, Defendants will be gravely prejudiced and Plaintiff's willful disregard of the statutory discovery process will be rewarded. The Court must intervene. B. There Is Good Cause to Compel Plaintiff’s Deposition. California Code of Civil Procedure section 2025.450, subsection (a) provides that the party giving notice of a deposition may move for an order compelling the deponent’s attendance and testimony, if after service of a deposition notice, the party whose deposition is noticed fails to appear for the examination without having served a valid objection. (C.C.P. § 2025.450(a).) That is exactly the situation here. 111 111 5 DEFENDANTS’ MOTION TO COMPEL DEPOSITION OF PLAINTIFF AND REQUEST FOR SANCTIONS H O W oO 0 Na O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 As noted, Defendants properly and timely noticed Plaintiff’s deposition on May 12 and May 31. (Decl. Kendrella, 1 9 and 15, Exhibits G and K.) Plaintiff never served objections to Defendants’ deposition notice, but he failed to appear. (Decl. Kendrella, §] 10 and 17.) Furthermore, Plaintiff did not respond to Defendants’ written Requests for Documents. (/d.) | Clearly, Defendants cannot explore the bases for Plaintiff’s claims or prepare their defense in this case if it cannot take Plaintiff’s deposition. Defendants are entitled to hear Plaintiffs testimony in support of his claims, in order to prepare for possible mediation, a motion for summary judgment and/or trial. Without Plaintiff’s deposition, Defendants cannot do the most basic case analysis, cannot prepare a motion for summary judgment which must be filed by July 11, 2016 and/or will be unable to prepare for trial which is currently set for October 24, 2016. C. Defendants Contacted Plaintiff to Inquire About His Nonappearance but No Response was Received. In accordance with Code of Civil Procedure section 2025.450(b)(2), on June 1, 2016, Defendants’ counsel contacted Plaintiff® by email to inquire about Plaintiff's nonappearance at his properly noticed deposition. (Decl. Kendrella, § 19, Exhibit N.) To date, no response has been received. (1d) D. Defendants Are Entitled to Sanctions as a Result of Plaintiff’s Abuse of Discovery. Undersigned counsel do not make it a practice to automatically seek sanctions in connection with discovery motions. Here, however, Plaintiff is engaging in abusive and completely unjustified behavior. Plaintiff has failed to appear for is properly noticed deposition and failed to provide verified discovery responses to Requests for Production of Documents. This is unfair and an abuse of the Civil Discovery Act. Code of Civil Procedure section 2025.450 subsection (g)(1) expressly authorizes a monetary sanction in favor of the party who noticed the deposition, unless the court finds there was substantial justification for the deponent’s actions or that the imposition of sanctions would be unjust. (C.C.P. § 2025.450(g)(1).) Further, “Section 2023.030 authorizes a trial court to impose monetary sanctions, issue sanctions, evidence sanctions, or terminating sanctions against ‘anyone engaging in conduct that is a misuse of the discovery process.”” (Doppes, supra, 174 Cal. App.4th at 991.) 6 DEFENDANTS’ MOTION TO COMPEL DEPOSITION OF PLAINTIFF AND REQUEST FOR SANCTIONS Oo c e 3 O N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Here, Plaintiff acted without any justification whatsoever in refusing to attend his properly noticed deposition. Plaintiff’s conduct amounts to a clear misuse of the discovery process, as Plaintiffs tactics have deprived Defendants of the ability to take his deposition, which they are clearly entitled to do under the Civil Discovery Act. Defendants’ counsel spent four (4) hours preparing this Motion, and anticipates spending another three (3) hours drafting the reply, and anticipates spending another three (3) hours drafting the reply and one (1) hour attending the hearing on this matter. (Decl. Kendrella, § 20.) This totals eight (8) hours. (Jd) With a billable rate of $345.00, the total fees for filing this Motion is $2,760.00. (Id) Defendants also incurred $248.79 in court reporter fees. (Decl. Kendrella, § 21.) Therefore, Defendants respectfully seek sanctions against Plaintiff Richard Gibbs IV in the amount of $3,008.79. (Id) V. CONCLUSION For the foregoing reasons, Defendants respectfully request an Order compelling Plaintiffs deposition within 14 days, for Plaintiff to provide verified responses to Defendants’ Requests for Production of Documents, and awarding Defendants sanctions in the amount of $3,008.79 for Plaintiff's abuse of the discovery process. DATED: June 2, 2016 JACKSON LEWIS P.C. Michael A. Hood Erin W. Kendrella Attorneys for Defendants SURE HAVEN and SOLID LANDINGS BEHAVIORAL HEALTH 7 DEFENDANTS’ MOTION TO COMPEL DEPOSITION OF PLAINTIFF AND REQUEST FOR SANCTIONS W N Ow 0 3 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE SUPERIOR COURT FOR THE STATE OF CALIFORNIA, COUNTY OF ORANGE CASE NAME: RICHARD GIBBS IV v. SURE HAVEN, et al. CASE NUMBER: 30-2015-00788187-CU-WT-CJC I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; my business address is 5000 Birch Street, Suite 5000, Newport Beach, California 92660. On June 2, 2016, I served the foregoing document described as: DEFENDANTS SURE HAVEN AND SOLID LANDINGS BEHAVIORAL HEALTH’S NOTICE OF MOTION AND MOTION TO COMPEL THE DEPOSITION OF PLAINTIFF RICHARD GIBBS IV AND RESPONSES TO REQUESTS FOR DOCUMENTS; REQUEST FOR MONETARY SANCTIONS AND REIMBURSEMENT OF $3,008.79; AND MEMORANDUM OF POINTS AND AUTHORITIES in this action by transmitting a true copy thereof enclosed in a sealed envelope addressed as follows: Richard Gibbs IV In Pro Per The Dream Center 2301 Bellavue Avenue Los Angeles, CA 90026 Telephone: (213) 273-7000 Facsimile: (213) 273-7284 Email: regibbs222(@email.com [X] BYMAIL [ ] I deposited such envelope in the mail at Newport Beach, California. The envelope was mailed with postage thereon fully prepaid. [X] As follows: I am “readily familiar” with the 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 Newport Beach, California in the ordinary course of business. 1 am aware that on motion of the party served, 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 FACSIMILE MACHINE I transmitted from a facsimile transmission machine whose telephone number is (949) 885-1380 to the above-identified recipient and fax telephone number. The above-described transmission was reported as complete without error by a transmission report issued by the facsimile transmission machine upon which the said transmission was made immediately following the transmission. [X] © BY E-MAIL OR ELECTRONIC TRANSMISSION Based on an agreement by the parties to accept service by e-mail or electronic transmission, I caused the document(s) described above to be sent from e-mail address Mariah.crabtree@jacksonlewis.com to the persons at the e-mail address listed above. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. 1 PROOF OF SERVICE No Oo 0 9 o N wn B A W 10 11 12 13 14 15 16 17 18 19 20 91 22 23 24 25 26 27 28 [X] STATE I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on June 2, 2016 at Newport Beach, California. Moab A Cagle, Mariah A. Crabtree 4836-9188-8689, v. 1 2 PROOF OF SERVICE