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1 JOSEPH S. PICCHI, ESQ. (State Bar No. 157102)
ALEXANDER PROMM, ESQ. (State Bar No. 318412)
2 GALLOWAY, LUCCHESE, EVERSON & PICCHI
A Professional Corporation
3 2300 Contra Costa Blvd., Suite 350
Pleasant Hill, CA 94523-2398
4 Tel. No. (925) 930-9090
Fax No. (925) 930-9035
5 E-mail: jpicchi@glattys.com; apromm@glattys.com
6 Attorneys for Defendants
B. EDWARD McCUTCHAN, JR.; ROBERT J. SUNDERLAND; and SUNDERLAND |
7 McCUTCHAN, LLP
8
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
IN AND FOR THE COUNTY OF SONOMA
10
11
RICHARD ABEL, an individual, Case No. SCV263456
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Plaintiff, The Honorable Arthur A. Wick
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vs. MEMORANDUM OF POINTS AND
14 AUTHORITIES IN SUPPORT OF
B. EDWARD McCUTCHAN JR., an OPPOSITION TO PLAINTIFF'S MOTION
15 individual; SUNDERLAND/McCUTCHAN, FOR PROTECTIVE ORDER
LLP, a general partnership; and DOES 1
16 through 100, inclusive,
Date: September 12, 2022
17 Defendants. Time: 1:30 p.m.
Dept: 10
18 Date Complaint Filed: November 2, 2018
Trial: January 13, 2023
19
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21 COMES NOW B. Edward McCutchan, Jr.; Robert J. Sunderland; and
22 Sunderland/McCutchan, LLP (collectively the "DEFENDANTS" herein) to submit This
23 Memorandum of Points and Authorities is hereby submitted by plaintiff in opposition to
24 Plaintiff Richard Abel’s ("Plaintiff') Motion for a Protective Order, or in the Alternative to
25 Quash the Deposition Notice of Defendants.
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GALLOWAY, LUCCHESE,
EVERSON & PICCHI
1
__________________________________
2300 Contra Costa Blvd.,
Suite 350 SCV263456: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1238203
Pleasant Hill, CA 94523
(925) 930-9090
OPPOSITION TO PLAINTIFF'S MOTION FOR PROTECTIVE ORDER
1 I.
2 INTRODUCTION
3 Defendants B. EDWARD McCUTCHAN, JR.; ROBERT J. SUNDERLAND; and
4 SUNDERLAND | McCUTCHAN, LLP have made numerous attempts to take plaintiff’s
5 deposition since 2021. Plaintiff, continuing his track record in this matter, is being
6 obstructive and claiming that he does not need to appear in person for his deposition
7 despite having been informed that he does not have the option of this election. Moving
8 defendants therefore have moved the Court of an Order compelling plaintiff’s deposition
9 to take place in person in conjunction with the opposition to this opposition. Further,
10 moving defendants have asked the Court to order monetary sanctions for plaintiff’s
11 misuse of the discovery process and the costs and fees associated with bringing the
12 motion to compel and opposing this motion for protective order.
13 II.
14 SUMMARY OF THE DISPUTE
15 Defendants duly noticed the deposition of Plaintiff 27 days prior to the date set for
16 his deposition. In setting this deposition Defendants had multiple correspondence with
17 Plaintiff regarding dates that he may be available. We set this deposition on a date that
18 Plaintiff stated he would be available. At no point did Plaintiff ever object or state that this
19 deposition could not proceed in person.
20 This objection to in-person appearance is clearly a pretext to further delay the
21 legitimate and necessary discovery for this matter. In September of 2021, Plaintiff noticed
22 the in-person deposition of Gary Holbrook and had no objection to all these parties being
23 present at that time, despite the state and country being as pressed by the COVID-19
24 pandemic at that time.
25 Further, Plaintiff has appeared in the courthouse on multiple occasions for the
26 hearings on various motions throughout the pandemic. Most recently, Abel appeared in
27 person for a hearing on a December 15, 2021 motion in Courtroom 18 to disqualify Mr.
28 McCutchan. Plaintiff’s use of the COVID pandemic as a reason for this protective order
GALLOWAY, LUCCHESE,
EVERSON & PICCHI
2
__________________________________
2300 Contra Costa Blvd.,
Suite 350 SCV263456: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1238203
Pleasant Hill, CA 94523
(925) 930-9090
OPPOSITION TO PLAINTIFF'S MOTION FOR PROTECTIVE ORDER
1 is misleading, inaccurate, and self-serving. The protective order/motion to quash only
2 serves Plaintiff’s ends of misusing and delaying the discovery process while driving up
3 the cost of litigation needlessly.
4 Since the height of the pandemic, California has codified the emergency orders
5 which concern the remote appearance at deposition. This codification clearly states that
6 a noticing party can compel a deponent to be present in-person at a deposition.
7 III.
8 STATEMENT OF FACTS
9 This is a legal malpractice action filed by Plaintiff in pro per against his former
10 attorney, Edward McCutchan and SUNDERLAND | McCUTCHAN, LLP. The underlying
11 matter from which this case arises was the matter of Liebling, et.al. v. Goodrich, et al.,
12 Case No. SCV-245738 (the Liebling Action”). According to the allegations in the
13 Complaint, the Liebling Action commenced on August 25, 2009, with ninety-seven (97)
14 plaintiffs and twenty-eight (28) defendants. (Declaration of Alexander Promm (“Dec of
15 AP”) at Para. 3)
16 On September 16, 2021, Plaintiff noticed the in-person deposition of Gary
17 Holbrook and had no objection to all these parties being present at that time, despite the
18 state and country being as pressed by the COVID-19 pandemic at that time. (Dec of AP
19 at Para. 4)
20 Prior to the filing of this motion for protective order, Plaintiff has appeared in the
21 courthouse on multiple occasions for the hearings on various motions throughout the
22 pandemic. (Dec of AP at Para. 5) Most recently, Abel appeared in person for a hearing
23 on a December 15, 2021 motion in Courtroom 18 to disqualify Mr. McCutchan from
24 representing certain DOE defendants. (Id.)
25 On March 4, 2022, our office contacted Plaintiff to establish a date for his
26 deposition. (Dec of AP at Para. 6) Mr. Schultz’s assistant proposed the date of March 29,
27 2022 for appearance in person in Santa Rosa. (Id.) Plaintiff responded and stated “I
28 checked my calendar and that day does not work for me. The 27th would be better.” (Id.)
GALLOWAY, LUCCHESE,
EVERSON & PICCHI
3
__________________________________
2300 Contra Costa Blvd.,
Suite 350 SCV263456: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1238203
Pleasant Hill, CA 94523
(925) 930-9090
OPPOSITION TO PLAINTIFF'S MOTION FOR PROTECTIVE ORDER
1 For reference, March 27, 2022 is a Sunday and the vendors we would be using would not
2 be available on that date. Mr. Schultz’s assistant cordially stated that we would not be
3 performing this deposition on a weekend and asked for further dates that might work for
4 him. (Id.)
5 Mr. Abel responded to this inquiry with “Excuse me, but I'm afraid you are not the
6 attorney of record. I am not required to "meet and confer" with a secretary.” (Id.)
7 Frustrated with Plaintiff’s lack of understanding but unwilling to submit the assistant to
8 further correspondence of this nature from plaintiff, both Mr. Schultz and Mr. Promm
9 responded and attempted to work with Plaintiff to obtain a date that would work for him.
10 (Dec of AP at Para. 7)
11 Mr. Abel, misunderstanding Mr. Promm’s position as attorney in this matter,
12 attempted to reprimand Mr. Promm for contacting him while not being the “attorney of
13 record” even though Mr. Abel was keenly aware of Mr. Promm’s presence in the case,
14 through months of correspondence and filings on behalf of these entities. (Dec of AP at
15 Para. 8)
16 Mr. Abel responded to Mr. Schultz and stated that he would provide a date that
17 would work for him. (Dec of AP at Para. 9) Plaintiff provided March 31st as a date for his
18 deposition and so, on March 15, 2022, Defendant duly noticed Plaintiff’s Deposition for
19 the date to which Plaintiff agreed. (Dec of AP at Para. 10) At no point did Plaintiff state
20 that he was unwilling to proceed with the deposition in person. (Dec of AP at Para. 11)
21 On March 19, 2022, Plaintiff sent meritless objections to this deposition notice.
22 (Dec of AP at Para. 12) The majority of these objections were trivial but in good faith, on
23 March 22, 2022, Defendants sent a meet and confer letter to Plaintiff outlining the issues
24 with these objections in attempt to obtain resolution. (Dec of AP at Para. 13) I n response,
25 on March 28, 2022, Plaintiff sent a letter back to our office stating that he believes that
26 this deposition must be carried out remotely, but citing no additional statute or case law
27 supporting his position. (Dec of AP at Para. 14) Instead, Plaintiff simply and conclusively
28 states that 2025.310 allows him to appear remotely. (Id.)
GALLOWAY, LUCCHESE,
EVERSON & PICCHI
4
__________________________________
2300 Contra Costa Blvd.,
Suite 350 SCV263456: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1238203
Pleasant Hill, CA 94523
(925) 930-9090
OPPOSITION TO PLAINTIFF'S MOTION FOR PROTECTIVE ORDER
1 We responded and reiterated that the code requires Plaintiff to appear in person
2 or seek a protective order. (Dec of AP at Para. 15) This letter additionally informed
3 Plaintiff that this would not be a remote deposition and that he should contact our office
4 to confirm his appearance by the day after the letter was sent or the deposition would be
5 taken off calendar and we would be seeking a court order compelling his deposition and
6 the sanctions associated with the motion. (Id.) The day after we had filed and served the
7 motion compelling Plaintiff’s Deposition, Plaintiff filed and served this motion for a
8 protective order
9 IV.
10 LEGAL AUTHORITY
11 A. PLAINTIFF’S DEPOSITION WAS DUELY NOTICED.
12 It is well settled that the Discovery Act confers upon litigants the right to take
13 depositions without prior Court order or approval and, with certain exceptions, does not
14 require any showing of good cause for taking of those depositions. (Kramer v. Superior
15 Court of Los Angeles County (1965) 237 Cal.App.2d 753.) CCP §2025.010 states, in
16 pertinent part, that “[a]ny party may obtain discovery…by taking in California the oral
17 deposition of any person, including a party to the action…. CCP § 2025.450 provides:
18 If, after service of a deposition notice, a party to the action…
without having served a valid objection under Section
19 2025,410, fails to appear for examination, or to proceed with
it, or to produce for inspection any document or tangible thing
20 described in the deposition notice, the party giving the notice
may move for an order compelling the deponent’s attendance
21 and testimony, and the production for inspection of any
document or tangible thing described in the deposition notice.
22
California Code of Civil Procedure § 2025.280 provides that “service of a
23
deposition notice under Section 2025.240 is effective to require any deponent who is a
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party to the action…to attend and to testify, as well as to produce any document or
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tangible thing for inspection and copying.” As set forth above, CCP § 2025.450 provides
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that if a party fails to appear for the deposition, or fails to produce for inspection any
27
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GALLOWAY, LUCCHESE,
EVERSON & PICCHI
5
__________________________________
2300 Contra Costa Blvd.,
Suite 350 SCV263456: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1238203
Pleasant Hill, CA 94523
(925) 930-9090
OPPOSITION TO PLAINTIFF'S MOTION FOR PROTECTIVE ORDER
1 document or tangible thing described in the deposition notice, after service of a deposition
2 notice, the party giving the notice may file a motion to compel.
3 In the instant case, the deposition of Plaintiff was duly noticed by moving
4 defendants. The date on this notice was one that was agreed to by Plaintiff and in the
5 notice and in the correspondence surrounding the setting of this deposition, Defendants
6 were consistent that they were noticing this deposition for in person appearance with no
7 objection by Plaintiff. Plaintiff is now abusing the discovery process by attempting to, once
8 again, delay and frustrate the discovery in this matter. Given plaintiff’s conduct throughout
9 the discovery process, moving defendants believe that it is unlikely that Plaintiff will attend
10 a deposition without a Court Order compelling him to do so.
11 B. IN PERSON DEPOSITION IS NOT OBJECTIONABLE
12 The Code of Civil procedure provides for Attendance via remote means in Section
13 2025.310. In this section, it states: “At the election of the deponent or the deposing party,
14 the deposition officer may attend the deposition at a different location than the deponent
15 via remote means. A deponent is not required to be physically present with the deposition
16 officer when being sworn in at the time of the deposition.” CCP § 2025.310 (a). The
17 Deposition Officer, as noted in this code section is a person who is qualified under the
18 Business and Professions Code and swears the Deponent into this deposition. CCP §
19 2025.320 (a).
20 Further, Subsection (b) of CCP § 2025.310 states that: “Subject to Section
21 2025.420, any party or attorney of record may, but is not required to, be physically
22 present at the deposition at the location of the deponent. If a party or attorney of record
23 elects to be physically present at the location of the deponent, all physically present
24 participants in the deposition shall comply with local health and safety ordinances.”
25 Finally, subsections (c) and (d) of this same code provide that the procedures to
26 implement this section shall be established by court order in the specific action or
27 proceeding or by the California Rules of Court and do not waive any other provisions of
28
GALLOWAY, LUCCHESE,
EVERSON & PICCHI
6
__________________________________
2300 Contra Costa Blvd.,
Suite 350 SCV263456: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1238203
Pleasant Hill, CA 94523
(925) 930-9090
OPPOSITION TO PLAINTIFF'S MOTION FOR PROTECTIVE ORDER
1 the code sections regarding the time, place, or manner in which a deposition shall be
2 conducted.
3 The California Rules of Court (“CRC”) are clear as to the requirement of Plaintiff to
4 appear in person for this deposition in 3.1010 where is states that: “Any party, other than
5 the deponent, or attorney of record may appear and participate in an oral deposition by
6 telephone, videoconference, or other remote electronic means.”
7 The CCP sections that Plaintiff attempts to use clearly show that there is a
8 differentiation between parties and the deponent. Throughout it is clear that the
9 deponents must appear at the time and place noticed and that other parties or counsel
10 may elect to appear through remote means.
11 Defendants have full intention of abiding by Sonoma County guidelines and are
12 taking every step to further a safe and effective deposition. Plaintiff is purposefully
13 obstructing Defendant’s ability to take his deposition with his meritless objections and
14 stubborn insistence, in the face of the code sections, on the contention that he is allowed
15 to appear remotely for this deposition. He refuses to acknowledge that his reading of
16 these code sections is incorrect. Further, Plaintiff has acted inconsistently in this matter
17 as he has had no qualms about making in-person appearances during the course of this
18 matter and the course of the pandemic, but has only now objected to this appearance.
19 C. THERE ARE NO GROUNDS FOR THIS DEPOSITION NOTICE TO BE
QUASHED.
20
Plaintiff has claimed that the language of Defendant’s deposition notice violates
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Code Civ, Proc. §2025.310 (a) and (b) which compels Plaintiff to attend the deposition on
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March 31, 2022 "and thereafter from day to day until completed."
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This language clearly does not violate the statutory time limit. This statement, as
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the Court should be aware, is a preservation of the Defendants’ rights in the possibility of
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exigent circumstances requiring the deposition to be cut short on the day noticed. This is
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entirely proper and Plaintiff’s request that the notice be quashed continues to show his
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obstructive attitude and gamesmanship in this matter.
28
GALLOWAY, LUCCHESE,
EVERSON & PICCHI
7
__________________________________
2300 Contra Costa Blvd.,
Suite 350 SCV263456: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1238203
Pleasant Hill, CA 94523
(925) 930-9090
OPPOSITION TO PLAINTIFF'S MOTION FOR PROTECTIVE ORDER
1 D. THE COURT SHOULD NOT ISSUE A PROTECTIVE ORDER REQUIRING THE
DEPOSITION BE REMOTE.
2
Plaintiff claims that California courts have relied on persuasive authority in United
3
States v. Greenlight, 503 F.Supp.3d 1269. However, conveniently, Plaintiff states no
4
authority where California has relied on this federal case. This is because it is factually
5
untrue. Even the federal cases which reference this case have a negative and
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distinguishing bent. In Greenlight Organic, “counsel ... identified numerous health-related
7
reasons why the individual witnesses object to appearing in person at their depositions[.]”
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Id. at 1273 (emphasis added). Even in the cited cases of Greenlight as early as July 2021,
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the federal court notes that the guidelines from the Centers for Disease Control and
10
Prevention, have since changed to account for the wide availability and high efficacy of
11
vaccines for COVID-19.
12
As noted in the opposition to this motion for protective order on behalf of Dale
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Davis et al states accurately that (1) the COVID-19 vaccination with two doses and a
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booster have all come out in the United States and Sonoma County after March 2021; (2)
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COVID-19 rates have greatly declined in Sonoma County the few months before March
16
31, 2022; (3) effective March 1, 2022, masking is not mandated in an in-person deposition
17
situation in Sonoma County. Further, Plaintiff has appeared multiple times in Court
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Defendants have already intoned to Plaintiff that they are willing to exceed Sonoma
19
County’s requirements for safe procedure for this deposition. Thus, Plaintiff’s opposition
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to in-person deposition is clearly aimed at further delaying the reasonable discovery of
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the Defendants.
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E. SANCTIONS SHOULD BE AWARDED
23
CCP § 2025.450(g) provides:
24
If a motion under subdivision (a) is granted, the court shall
25 impose a monetary sanction under Chapter 7 (commencing
with Section 2023.010) in favor of the party who noticed the
26 deposition and against the deponent or the party with whom
the deponent is affiliated, unless the court finds that the one
27 subject to the sanction acted with substantial justification or
that other circumstances make the imposition of the sanction
28 unjust.
GALLOWAY, LUCCHESE,
EVERSON & PICCHI
8
__________________________________
2300 Contra Costa Blvd.,
Suite 350 SCV263456: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1238203
Pleasant Hill, CA 94523
(925) 930-9090
OPPOSITION TO PLAINTIFF'S MOTION FOR PROTECTIVE ORDER
1 Plaintiff’s refusal to attend his deposition is without substantial justification.
2 Plaintiff’s deliberate and stubborn misreading of the code has caused moving defendants
3 to incur costs as a result of the numerous efforts to meet and confer with plaintiff’s counsel
4 in order to obtain a deposition date and the resulting necessity of filing this motion.
5 Moving defendants’ counsel spent four (3) hours in preparation of this motion. It
6 is expected that moving defendants’ counsel will spend an additional two (2) hours in
7 preparation of a reply and four (3) hours to attend the hearing on this motion. Moving
8 defendants’ counsel’s hourly rate is $185.00. Moving defendants therefore seek
9 $1480.00 for costs and fees that were incurred as a result of Plaintiff’s meritless motion
10 for a protective order.
11 V.
12 CONCLUSION
13 This motion should be denied in its entirety, this court should order Abel to attend
14 an in-person deposition and sanction Richard Abel the amount requested in this
15 opposition of $1480.00 payable within 45 days of notice of order after hearing.
16
17 Dated: August 3, 2022
GALLOWAY, LUCCHESE, EVERSON
18 & PICCHI
19
20
21 By:
ALEXANDER D. PROMM, ESQ.
22 Attorneys for Defendants
B. EDWARD McCUTCHAN, JR.;
23 ROBERT J. SUNDERLAND; and
SUNDERLAND | McCUTCHAN, LLP
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GALLOWAY, LUCCHESE,
EVERSON & PICCHI
9
__________________________________
2300 Contra Costa Blvd.,
Suite 350 SCV263456: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1238203
Pleasant Hill, CA 94523
(925) 930-9090
OPPOSITION TO PLAINTIFF'S MOTION FOR PROTECTIVE ORDER
1 PROOF OF SERVICE
2 I declare under penalty of perjury that:
3 I am a citizen of the United States and am employed in the County of Contra Costa. I am
over the age of eighteen years and not a party to the within action. My business address
4 is 2300 Contra Costa Boulevard, Suite 350, Pleasant Hill, CA 94523-2398.
5 On the date set forth below, I caused the attached MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF OPPOSITION TO PLAINTIFF'S MOTION FOR
6 PROTECTIVE ORDER to be served on the parties to this action as follows:
7 BY ELECTRONIC SERVICE.
8 I electronically served a true copy thereof on the parties at said electronic
9 notification addresses as set forth on the attached service list from my electronic
notification address: hehmke@glattys.com. The transmission was reported as
10 complete and without error. C.C.P. § 1010.6(a) and C.R.C. Rule 2.251.
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12 Executed on August 3, 2022 at Pleasant Hill, California.
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Heidi Ehmke
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GALLOWAY, LUCCHESE,
EVERSON & PICCHI
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__________________________________
2300 Contra Costa Blvd.,
Suite 350 SCV263456: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1238203
Pleasant Hill, CA 94523
(925) 930-9090
OPPOSITION TO PLAINTIFF'S MOTION FOR PROTECTIVE ORDER
1 ABEL V. MCCUTCHAN
2 SONOMA COUNTY SUPERIOR COURT CASE NO. SCV263456
3 SERVICE LIST
4
5 Mr. Richard Abel Counsel for Plaintiff in propria persona
P. O. Box 9301
6 Santa Rosa, CA 95405
Fax:
7 Email: perere1@gmail.com
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B. Edward McCutchan, Jr., Esq. Counsel for Defendants JIM NORD
10 Sunderland | McCutchan, LLP and DALE DAVIS
1083 Vine Street, Suite 907
11 Healdsburg, CA 95448
Fax: (707) 284-5527
12 Email: emccutchan@sunmclaw.com
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GALLOWAY, LUCCHESE,
EVERSON & PICCHI
11
__________________________________
2300 Contra Costa Blvd.,
Suite 350 SCV263456: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1238203
Pleasant Hill, CA 94523
(925) 930-9090
OPPOSITION TO PLAINTIFF'S MOTION FOR PROTECTIVE ORDER
Preview
1 JOSEPH S. PICCHI, ESQ. (State Bar No. 157102) ALEXANDER PROMM, ESQ. (State Bar No. 318412) 2 GALLOWAY, LUCCHESE, EVERSON & PICCHI A Professional Corporation 3 2300 Contra Costa Blvd., Suite 350 Pleasant Hill, CA 94523-2398 4 Tel. No. (925) 930-9090 Fax No. (925) 930-9035 5 E-mail: jpicchi@glattys.com; apromm@glattys.com 6 Attorneys for Defendants B. EDWARD McCUTCHAN, JR.; ROBERT J. SUNDERLAND; and SUNDERLAND | 7 McCUTCHAN, LLP 8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SONOMA 10 11 RICHARD ABEL, an individual, Case No. SCV263456 12 Plaintiff, The Honorable Arthur A. Wick 13 vs. MEMORANDUM OF POINTS AND 14 AUTHORITIES IN SUPPORT OF B. EDWARD McCUTCHAN JR., an OPPOSITION TO PLAINTIFF'S MOTION 15 individual; SUNDERLAND/McCUTCHAN, FOR PROTECTIVE ORDER LLP, a general partnership; and DOES 1 16 through 100, inclusive, Date: September 12, 2022 17 Defendants. Time: 1:30 p.m. Dept: 10 18 Date Complaint Filed: November 2, 2018 Trial: January 13, 2023 19 20 21 COMES NOW B. Edward McCutchan, Jr.; Robert J. Sunderland; and 22 Sunderland/McCutchan, LLP (collectively the "DEFENDANTS" herein) to submit This 23 Memorandum of Points and Authorities is hereby submitted by plaintiff in opposition to 24 Plaintiff Richard Abel’s ("Plaintiff') Motion for a Protective Order, or in the Alternative to 25 Quash the Deposition Notice of Defendants. 26 27 28 GALLOWAY, LUCCHESE, EVERSON & PICCHI 1 __________________________________ 2300 Contra Costa Blvd., Suite 350 SCV263456: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1238203 Pleasant Hill, CA 94523 (925) 930-9090 OPPOSITION TO PLAINTIFF'S MOTION FOR PROTECTIVE ORDER 1 I. 2 INTRODUCTION 3 Defendants B. EDWARD McCUTCHAN, JR.; ROBERT J. SUNDERLAND; and 4 SUNDERLAND | McCUTCHAN, LLP have made numerous attempts to take plaintiff’s 5 deposition since 2021. Plaintiff, continuing his track record in this matter, is being 6 obstructive and claiming that he does not need to appear in person for his deposition 7 despite having been informed that he does not have the option of this election. Moving 8 defendants therefore have moved the Court of an Order compelling plaintiff’s deposition 9 to take place in person in conjunction with the opposition to this opposition. Further, 10 moving defendants have asked the Court to order monetary sanctions for plaintiff’s 11 misuse of the discovery process and the costs and fees associated with bringing the 12 motion to compel and opposing this motion for protective order. 13 II. 14 SUMMARY OF THE DISPUTE 15 Defendants duly noticed the deposition of Plaintiff 27 days prior to the date set for 16 his deposition. In setting this deposition Defendants had multiple correspondence with 17 Plaintiff regarding dates that he may be available. We set this deposition on a date that 18 Plaintiff stated he would be available. At no point did Plaintiff ever object or state that this 19 deposition could not proceed in person. 20 This objection to in-person appearance is clearly a pretext to further delay the 21 legitimate and necessary discovery for this matter. In September of 2021, Plaintiff noticed 22 the in-person deposition of Gary Holbrook and had no objection to all these parties being 23 present at that time, despite the state and country being as pressed by the COVID-19 24 pandemic at that time. 25 Further, Plaintiff has appeared in the courthouse on multiple occasions for the 26 hearings on various motions throughout the pandemic. Most recently, Abel appeared in 27 person for a hearing on a December 15, 2021 motion in Courtroom 18 to disqualify Mr. 28 McCutchan. Plaintiff’s use of the COVID pandemic as a reason for this protective order GALLOWAY, LUCCHESE, EVERSON & PICCHI 2 __________________________________ 2300 Contra Costa Blvd., Suite 350 SCV263456: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1238203 Pleasant Hill, CA 94523 (925) 930-9090 OPPOSITION TO PLAINTIFF'S MOTION FOR PROTECTIVE ORDER 1 is misleading, inaccurate, and self-serving. The protective order/motion to quash only 2 serves Plaintiff’s ends of misusing and delaying the discovery process while driving up 3 the cost of litigation needlessly. 4 Since the height of the pandemic, California has codified the emergency orders 5 which concern the remote appearance at deposition. This codification clearly states that 6 a noticing party can compel a deponent to be present in-person at a deposition. 7 III. 8 STATEMENT OF FACTS 9 This is a legal malpractice action filed by Plaintiff in pro per against his former 10 attorney, Edward McCutchan and SUNDERLAND | McCUTCHAN, LLP. The underlying 11 matter from which this case arises was the matter of Liebling, et.al. v. Goodrich, et al., 12 Case No. SCV-245738 (the Liebling Action”). According to the allegations in the 13 Complaint, the Liebling Action commenced on August 25, 2009, with ninety-seven (97) 14 plaintiffs and twenty-eight (28) defendants. (Declaration of Alexander Promm (“Dec of 15 AP”) at Para. 3) 16 On September 16, 2021, Plaintiff noticed the in-person deposition of Gary 17 Holbrook and had no objection to all these parties being present at that time, despite the 18 state and country being as pressed by the COVID-19 pandemic at that time. (Dec of AP 19 at Para. 4) 20 Prior to the filing of this motion for protective order, Plaintiff has appeared in the 21 courthouse on multiple occasions for the hearings on various motions throughout the 22 pandemic. (Dec of AP at Para. 5) Most recently, Abel appeared in person for a hearing 23 on a December 15, 2021 motion in Courtroom 18 to disqualify Mr. McCutchan from 24 representing certain DOE defendants. (Id.) 25 On March 4, 2022, our office contacted Plaintiff to establish a date for his 26 deposition. (Dec of AP at Para. 6) Mr. Schultz’s assistant proposed the date of March 29, 27 2022 for appearance in person in Santa Rosa. (Id.) Plaintiff responded and stated “I 28 checked my calendar and that day does not work for me. The 27th would be better.” (Id.) GALLOWAY, LUCCHESE, EVERSON & PICCHI 3 __________________________________ 2300 Contra Costa Blvd., Suite 350 SCV263456: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1238203 Pleasant Hill, CA 94523 (925) 930-9090 OPPOSITION TO PLAINTIFF'S MOTION FOR PROTECTIVE ORDER 1 For reference, March 27, 2022 is a Sunday and the vendors we would be using would not 2 be available on that date. Mr. Schultz’s assistant cordially stated that we would not be 3 performing this deposition on a weekend and asked for further dates that might work for 4 him. (Id.) 5 Mr. Abel responded to this inquiry with “Excuse me, but I'm afraid you are not the 6 attorney of record. I am not required to "meet and confer" with a secretary.” (Id.) 7 Frustrated with Plaintiff’s lack of understanding but unwilling to submit the assistant to 8 further correspondence of this nature from plaintiff, both Mr. Schultz and Mr. Promm 9 responded and attempted to work with Plaintiff to obtain a date that would work for him. 10 (Dec of AP at Para. 7) 11 Mr. Abel, misunderstanding Mr. Promm’s position as attorney in this matter, 12 attempted to reprimand Mr. Promm for contacting him while not being the “attorney of 13 record” even though Mr. Abel was keenly aware of Mr. Promm’s presence in the case, 14 through months of correspondence and filings on behalf of these entities. (Dec of AP at 15 Para. 8) 16 Mr. Abel responded to Mr. Schultz and stated that he would provide a date that 17 would work for him. (Dec of AP at Para. 9) Plaintiff provided March 31st as a date for his 18 deposition and so, on March 15, 2022, Defendant duly noticed Plaintiff’s Deposition for 19 the date to which Plaintiff agreed. (Dec of AP at Para. 10) At no point did Plaintiff state 20 that he was unwilling to proceed with the deposition in person. (Dec of AP at Para. 11) 21 On March 19, 2022, Plaintiff sent meritless objections to this deposition notice. 22 (Dec of AP at Para. 12) The majority of these objections were trivial but in good faith, on 23 March 22, 2022, Defendants sent a meet and confer letter to Plaintiff outlining the issues 24 with these objections in attempt to obtain resolution. (Dec of AP at Para. 13) I n response, 25 on March 28, 2022, Plaintiff sent a letter back to our office stating that he believes that 26 this deposition must be carried out remotely, but citing no additional statute or case law 27 supporting his position. (Dec of AP at Para. 14) Instead, Plaintiff simply and conclusively 28 states that 2025.310 allows him to appear remotely. (Id.) GALLOWAY, LUCCHESE, EVERSON & PICCHI 4 __________________________________ 2300 Contra Costa Blvd., Suite 350 SCV263456: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1238203 Pleasant Hill, CA 94523 (925) 930-9090 OPPOSITION TO PLAINTIFF'S MOTION FOR PROTECTIVE ORDER 1 We responded and reiterated that the code requires Plaintiff to appear in person 2 or seek a protective order. (Dec of AP at Para. 15) This letter additionally informed 3 Plaintiff that this would not be a remote deposition and that he should contact our office 4 to confirm his appearance by the day after the letter was sent or the deposition would be 5 taken off calendar and we would be seeking a court order compelling his deposition and 6 the sanctions associated with the motion. (Id.) The day after we had filed and served the 7 motion compelling Plaintiff’s Deposition, Plaintiff filed and served this motion for a 8 protective order 9 IV. 10 LEGAL AUTHORITY 11 A. PLAINTIFF’S DEPOSITION WAS DUELY NOTICED. 12 It is well settled that the Discovery Act confers upon litigants the right to take 13 depositions without prior Court order or approval and, with certain exceptions, does not 14 require any showing of good cause for taking of those depositions. (Kramer v. Superior 15 Court of Los Angeles County (1965) 237 Cal.App.2d 753.) CCP §2025.010 states, in 16 pertinent part, that “[a]ny party may obtain discovery…by taking in California the oral 17 deposition of any person, including a party to the action…. CCP § 2025.450 provides: 18 If, after service of a deposition notice, a party to the action… without having served a valid objection under Section 19 2025,410, fails to appear for examination, or to proceed with it, or to produce for inspection any document or tangible thing 20 described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance 21 and testimony, and the production for inspection of any document or tangible thing described in the deposition notice. 22 California Code of Civil Procedure § 2025.280 provides that “service of a 23 deposition notice under Section 2025.240 is effective to require any deponent who is a 24 party to the action…to attend and to testify, as well as to produce any document or 25 tangible thing for inspection and copying.” As set forth above, CCP § 2025.450 provides 26 that if a party fails to appear for the deposition, or fails to produce for inspection any 27 28 GALLOWAY, LUCCHESE, EVERSON & PICCHI 5 __________________________________ 2300 Contra Costa Blvd., Suite 350 SCV263456: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1238203 Pleasant Hill, CA 94523 (925) 930-9090 OPPOSITION TO PLAINTIFF'S MOTION FOR PROTECTIVE ORDER 1 document or tangible thing described in the deposition notice, after service of a deposition 2 notice, the party giving the notice may file a motion to compel. 3 In the instant case, the deposition of Plaintiff was duly noticed by moving 4 defendants. The date on this notice was one that was agreed to by Plaintiff and in the 5 notice and in the correspondence surrounding the setting of this deposition, Defendants 6 were consistent that they were noticing this deposition for in person appearance with no 7 objection by Plaintiff. Plaintiff is now abusing the discovery process by attempting to, once 8 again, delay and frustrate the discovery in this matter. Given plaintiff’s conduct throughout 9 the discovery process, moving defendants believe that it is unlikely that Plaintiff will attend 10 a deposition without a Court Order compelling him to do so. 11 B. IN PERSON DEPOSITION IS NOT OBJECTIONABLE 12 The Code of Civil procedure provides for Attendance via remote means in Section 13 2025.310. In this section, it states: “At the election of the deponent or the deposing party, 14 the deposition officer may attend the deposition at a different location than the deponent 15 via remote means. A deponent is not required to be physically present with the deposition 16 officer when being sworn in at the time of the deposition.” CCP § 2025.310 (a). The 17 Deposition Officer, as noted in this code section is a person who is qualified under the 18 Business and Professions Code and swears the Deponent into this deposition. CCP § 19 2025.320 (a). 20 Further, Subsection (b) of CCP § 2025.310 states that: “Subject to Section 21 2025.420, any party or attorney of record may, but is not required to, be physically 22 present at the deposition at the location of the deponent. If a party or attorney of record 23 elects to be physically present at the location of the deponent, all physically present 24 participants in the deposition shall comply with local health and safety ordinances.” 25 Finally, subsections (c) and (d) of this same code provide that the procedures to 26 implement this section shall be established by court order in the specific action or 27 proceeding or by the California Rules of Court and do not waive any other provisions of 28 GALLOWAY, LUCCHESE, EVERSON & PICCHI 6 __________________________________ 2300 Contra Costa Blvd., Suite 350 SCV263456: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1238203 Pleasant Hill, CA 94523 (925) 930-9090 OPPOSITION TO PLAINTIFF'S MOTION FOR PROTECTIVE ORDER 1 the code sections regarding the time, place, or manner in which a deposition shall be 2 conducted. 3 The California Rules of Court (“CRC”) are clear as to the requirement of Plaintiff to 4 appear in person for this deposition in 3.1010 where is states that: “Any party, other than 5 the deponent, or attorney of record may appear and participate in an oral deposition by 6 telephone, videoconference, or other remote electronic means.” 7 The CCP sections that Plaintiff attempts to use clearly show that there is a 8 differentiation between parties and the deponent. Throughout it is clear that the 9 deponents must appear at the time and place noticed and that other parties or counsel 10 may elect to appear through remote means. 11 Defendants have full intention of abiding by Sonoma County guidelines and are 12 taking every step to further a safe and effective deposition. Plaintiff is purposefully 13 obstructing Defendant’s ability to take his deposition with his meritless objections and 14 stubborn insistence, in the face of the code sections, on the contention that he is allowed 15 to appear remotely for this deposition. He refuses to acknowledge that his reading of 16 these code sections is incorrect. Further, Plaintiff has acted inconsistently in this matter 17 as he has had no qualms about making in-person appearances during the course of this 18 matter and the course of the pandemic, but has only now objected to this appearance. 19 C. THERE ARE NO GROUNDS FOR THIS DEPOSITION NOTICE TO BE QUASHED. 20 Plaintiff has claimed that the language of Defendant’s deposition notice violates 21 Code Civ, Proc. §2025.310 (a) and (b) which compels Plaintiff to attend the deposition on 22 March 31, 2022 "and thereafter from day to day until completed." 23 This language clearly does not violate the statutory time limit. This statement, as 24 the Court should be aware, is a preservation of the Defendants’ rights in the possibility of 25 exigent circumstances requiring the deposition to be cut short on the day noticed. This is 26 entirely proper and Plaintiff’s request that the notice be quashed continues to show his 27 obstructive attitude and gamesmanship in this matter. 28 GALLOWAY, LUCCHESE, EVERSON & PICCHI 7 __________________________________ 2300 Contra Costa Blvd., Suite 350 SCV263456: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1238203 Pleasant Hill, CA 94523 (925) 930-9090 OPPOSITION TO PLAINTIFF'S MOTION FOR PROTECTIVE ORDER 1 D. THE COURT SHOULD NOT ISSUE A PROTECTIVE ORDER REQUIRING THE DEPOSITION BE REMOTE. 2 Plaintiff claims that California courts have relied on persuasive authority in United 3 States v. Greenlight, 503 F.Supp.3d 1269. However, conveniently, Plaintiff states no 4 authority where California has relied on this federal case. This is because it is factually 5 untrue. Even the federal cases which reference this case have a negative and 6 distinguishing bent. In Greenlight Organic, “counsel ... identified numerous health-related 7 reasons why the individual witnesses object to appearing in person at their depositions[.]” 8 Id. at 1273 (emphasis added). Even in the cited cases of Greenlight as early as July 2021, 9 the federal court notes that the guidelines from the Centers for Disease Control and 10 Prevention, have since changed to account for the wide availability and high efficacy of 11 vaccines for COVID-19. 12 As noted in the opposition to this motion for protective order on behalf of Dale 13 Davis et al states accurately that (1) the COVID-19 vaccination with two doses and a 14 booster have all come out in the United States and Sonoma County after March 2021; (2) 15 COVID-19 rates have greatly declined in Sonoma County the few months before March 16 31, 2022; (3) effective March 1, 2022, masking is not mandated in an in-person deposition 17 situation in Sonoma County. Further, Plaintiff has appeared multiple times in Court 18 Defendants have already intoned to Plaintiff that they are willing to exceed Sonoma 19 County’s requirements for safe procedure for this deposition. Thus, Plaintiff’s opposition 20 to in-person deposition is clearly aimed at further delaying the reasonable discovery of 21 the Defendants. 22 E. SANCTIONS SHOULD BE AWARDED 23 CCP § 2025.450(g) provides: 24 If a motion under subdivision (a) is granted, the court shall 25 impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the 26 deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one 27 subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction 28 unjust. GALLOWAY, LUCCHESE, EVERSON & PICCHI 8 __________________________________ 2300 Contra Costa Blvd., Suite 350 SCV263456: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1238203 Pleasant Hill, CA 94523 (925) 930-9090 OPPOSITION TO PLAINTIFF'S MOTION FOR PROTECTIVE ORDER 1 Plaintiff’s refusal to attend his deposition is without substantial justification. 2 Plaintiff’s deliberate and stubborn misreading of the code has caused moving defendants 3 to incur costs as a result of the numerous efforts to meet and confer with plaintiff’s counsel 4 in order to obtain a deposition date and the resulting necessity of filing this motion. 5 Moving defendants’ counsel spent four (3) hours in preparation of this motion. It 6 is expected that moving defendants’ counsel will spend an additional two (2) hours in 7 preparation of a reply and four (3) hours to attend the hearing on this motion. Moving 8 defendants’ counsel’s hourly rate is $185.00. Moving defendants therefore seek 9 $1480.00 for costs and fees that were incurred as a result of Plaintiff’s meritless motion 10 for a protective order. 11 V. 12 CONCLUSION 13 This motion should be denied in its entirety, this court should order Abel to attend 14 an in-person deposition and sanction Richard Abel the amount requested in this 15 opposition of $1480.00 payable within 45 days of notice of order after hearing. 16 17 Dated: August 3, 2022 GALLOWAY, LUCCHESE, EVERSON 18 & PICCHI 19 20 21 By: ALEXANDER D. PROMM, ESQ. 22 Attorneys for Defendants B. EDWARD McCUTCHAN, JR.; 23 ROBERT J. SUNDERLAND; and SUNDERLAND | McCUTCHAN, LLP 24 25 26 27 28 GALLOWAY, LUCCHESE, EVERSON & PICCHI 9 __________________________________ 2300 Contra Costa Blvd., Suite 350 SCV263456: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1238203 Pleasant Hill, CA 94523 (925) 930-9090 OPPOSITION TO PLAINTIFF'S MOTION FOR PROTECTIVE ORDER 1 PROOF OF SERVICE 2 I declare under penalty of perjury that: 3 I am a citizen of the United States and am employed in the County of Contra Costa. I am over the age of eighteen years and not a party to the within action. My business address 4 is 2300 Contra Costa Boulevard, Suite 350, Pleasant Hill, CA 94523-2398. 5 On the date set forth below, I caused the attached MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION TO PLAINTIFF'S MOTION FOR 6 PROTECTIVE ORDER to be served on the parties to this action as follows: 7 BY ELECTRONIC SERVICE. 8 I electronically served a true copy thereof on the parties at said electronic 9 notification addresses as set forth on the attached service list from my electronic notification address: hehmke@glattys.com. The transmission was reported as 10 complete and without error. C.C.P. § 1010.6(a) and C.R.C. Rule 2.251. 11 12 Executed on August 3, 2022 at Pleasant Hill, California. 13 14 Heidi Ehmke 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GALLOWAY, LUCCHESE, EVERSON & PICCHI 10 __________________________________ 2300 Contra Costa Blvd., Suite 350 SCV263456: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1238203 Pleasant Hill, CA 94523 (925) 930-9090 OPPOSITION TO PLAINTIFF'S MOTION FOR PROTECTIVE ORDER 1 ABEL V. MCCUTCHAN 2 SONOMA COUNTY SUPERIOR COURT CASE NO. SCV263456 3 SERVICE LIST 4 5 Mr. Richard Abel Counsel for Plaintiff in propria persona P. O. Box 9301 6 Santa Rosa, CA 95405 Fax: 7 Email: perere1@gmail.com 8 9 B. Edward McCutchan, Jr., Esq. Counsel for Defendants JIM NORD 10 Sunderland | McCutchan, LLP and DALE DAVIS 1083 Vine Street, Suite 907 11 Healdsburg, CA 95448 Fax: (707) 284-5527 12 Email: emccutchan@sunmclaw.com 13 14 15 16 17 18 956-10761/ADP/1238203 19 20 21 22 23 24 25 26 27 28 GALLOWAY, LUCCHESE, EVERSON & PICCHI 11 __________________________________ 2300 Contra Costa Blvd., Suite 350 SCV263456: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 956-10761/ADP/1238203 Pleasant Hill, CA 94523 (925) 930-9090 OPPOSITION TO PLAINTIFF'S MOTION FOR PROTECTIVE ORDER