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1 William L. Adams SBN 166027
JOHNSTON | THOMAS, Attorneys at Law, PC
2 1400 N. Dutton Ave., Suite 21
Santa Rosa, CA 95401
3 Telephone: (707) 545-6542
Facsimile: (707) 545-1522
4 Email: wadams@johnstonthomas.com
5 Attorneys for Defendant
TWO ROCK VOLUNTEER FIRE DEPARTMENT
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SONOMA
10 FREAR STEPHEN SCHMID AND Case No. SCV-266225 and consolidated
ASTRID SCHMID, actions SCV-266731 and SCV-270339
11
Plaintiffs, DEFENDANT TWO ROCK VOLUNTEER
12 FIRE DEPARTMENT’S NOTICE OF
v. MOTION AND MOTION TO EXCLUDE
13 THE TRIAL TESTIMONY OF
PLAINTIFF ASTRID SCHMID OR TO
14 TWO ROCK VOLUNTEER FIRE COMPEL DEPOSITION: AND FOR
DEPARTMENT, SANCTIONS
15 [CCP § 2025.450]
Defendant.
16 Hearing Date:
Hearing Time: 3:00 p.m.
17 Department: 19
18 AND CONSOLIDATED ACTIONS. Trial Call: November 4, 2022
Time: 8:30 a.m.
19 Department: 19
20 NOTICE IS HEREBY GIVEN TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
21 Pursuant to Code of Civil Procedure section 2025.450 1, at 3:00 pm, on __________ 2022,
22 in Department 19 of the Sonoma County Superior Court, 3055 Cleveland Avenue, Santa Rosa,
23 CA, the Court will hear the motion of Defendant Two Rock Volunteer Fire Department
24 (“TRVFD”) to exclude the trial testimony of Plaintiff ASTRID SCHMID (“Plaintiff”), or to
25 compel her deposition, because of Plaintiff’s refusal to attend her duly noticed deposition on
26 August 26, 2022.
27
28 1
All statutory references herein are to the Code of Civil Procedure unless otherwise indicated.
1
MOTION TO EXCLUDE THE TRIAL TESTIMONY OF PLAINTIFF ASTRID SCHMID OR TO
COMPEL DEPOSITION; AND FOR SANCTIONS
1 This Motion will be based on this Memorandum of Points and Authorities; the
2 accompanying supporting declaration of TRVFD counsel William L Adams and documentary
3 exhibits attached thereto; on the Court’s own records and files in this consolidated action pursuant
4 to Evidence Code section 452(d); and on such additional argument as may be presented at the
5 hearing on this Motion. Additionally, TRVFD requests an award of $1,575.00 in attorney’s fees
6 and costs as sanctions against Plaintiff, as mandated in section 2025.450(g)(2); as well as
7 potential sum certain sanctions of a further $500.00, as mandated by section 2023.050(a).
8 PROCEDURAL CHRONOLOGY
9 The relevant chronology of Plaintiff’s refusal to attend her deposition is documented in
10 the certified court reporter Statement of Nonappearance attached as Exhibit 1 to the supporting
11 declaration of William L Adams (hereinafter “Adams Decl.”)
12 After this Court issued its Order after Hearing on July 29, 2022, consolidating these
13 actions, TRVFD issued a deposition notice with production of documents pursuant to section
14 2025.210 to Plaintiff on August 4, 2022, setting Plaintiff’s deposition for 9:00 am on August 26,
15 2022. (See Exhibits A and B to Statement of Nonappearance.)
16 On the evening of Friday, August 19, 2022, Plaintiff served via email invalid objections
17 to the deposition notice (still using the former case number that was consolidated three weeks
18 before), ignoring the Court’s consolidation of Plaintiff’s cases against TRVFD and arguing that
19 TRVFD was not a party and William L. Adams was not attorney of record for a party. (See
20 Exhibit C to Statement of Nonappearance). On Monday, August 22, 2022, TRVFD counsel
21 reviewed Plaintiff’s invalid objections and responded to Plaintiff, informing Plaintiff that the
22 objections were invalid, and that the deposition would proceed as noticed on August 26, 2022,
23 and further informing Plaintiff that this Motion would be brought if Plaintiff continued to refuse
24 to appear without substantial justification. (See Exhibit D to Statement of Nonappearance.)
25 On Wednesday, August 24, 2022, at the deposition of TRVFD Treasurer Paul Martin,
26 Plaintiff again informed TRVFD counsel that he was not going to attend her duly noticed
27 deposition, and TRVFD counsel informed Plaintiff the deposition would go on the record as
28 noticed at 9:00 am on August 26, 2022, to document her deliberate refusal to appear.
2
MOTION TO EXCLUDE THE TRIAL TESTIMONY OF PLAINTIFF ASTRID SCHMID OR TO
COMPEL DEPOSITION; AND FOR SANCTIONS
1 On August 26, 2022, at approximately 8:45 am, TRVFD counsel received a call from
2 Deputy County Counsel Michael King, who represents Defendant County of Sonoma in this
3 consolidated action, who informed me that he would not attend unless Plaintiff appeared and
4 authorized me to state on the record that stipulated to proceeding with the deposition as noticed
5 in order to document Plaintiff’s refusal to appear.
6 On August 26, 2022, at approximately 1:05 pm, after there was no appearance or further
7 communication from Plaintiff and none of the documents called in the deposition notice pursuant
8 to section 2025.210 were produced, TRVFD counsel went on the record to document Plaintiff’s
9 nonappearance, as set forth in the transcript and supporting documents provided in Exhibit 1 to
10 Adams Decl.
11 Unfortunately, this is not the first occasion that Plaintiff has refused to attend her
12 deposition. On October 8, 2021, Plaintiff’s deposition with production of documents on October
13 18, 2021, was duly noticed and the deposition personally served at Plaintiff’s residence at 7585
14 Valley Ford Road in Petaluma, CA . Nevertheless, Plaintiff propounded invalid objection falsely
15 stating that he had not been served and refused to attend or produce documents requested Because
16 the Trial Court thereafter sua sponte vacated the trial set for November 19, 2021, no motion to
17 compel Plaintiff’s deposition under section 2025.450 was brought. However, the Court is
18 respectfully requested to consider Plaintiff’s documented pattern of refusing to comply with valid
19 discovery and refusing to provide her testimony on the eve of trial, in making its determinations
20 concerning this Motion. The October 8, 2021, deposition notice to Plaintiff and proof of service
21 are attached as Exhibit 2 to Adams Decl.
22 LEGAL ARGUMENT
23 Plaintiff’s objections arguing that TRVFD lacks standing to issue a deposition notice with
24 production of documents are clearly specious and invalid. Where invalid objections are
25 propounded, a deponent is subject to the sanction regime set forth in section 2025.450. (See
26 2025.450(a); see also Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702 (“The
27 question before us is not whether the trial should have imposed a lesser sanction; rather, the
28 question is whether the trial court abused its discretion by imposing the sanction it chose.”
3
MOTION TO EXCLUDE THE TRIAL TESTIMONY OF PLAINTIFF ASTRID SCHMID OR TO
COMPEL DEPOSITION; AND FOR SANCTIONS
1 (quoting Liberty Mutual Fire Ins. Co v. LcL Administrators, Inc. (2008) 163 Cal.App.,4th 1093,
2 1105).)
3 Plaintiff’s pattern and demonstrated practice of willful discovery violations is particularly
4 egregious since Plaintiff is represented and advised by her husband, co-Plaintiff Frear Stephen
5 Schmid, a licensed California attorney with 42 years of experience. “[W]here a violation is
6 willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would
7 not produce compliance with the discovery rules, the trial court is justified in imposing the
8 ultimate sanction.” (Creed -21, supra, 18 Cal.App.5th at 702 (quoting Doppes v. Bentley Motors,
9 Inc. (2009) 174 Cal.App.4th 967, 992).)
10 Because Plaintiff has repeatedly refused to participate in discovery to provide her
11 testimony as required by the Discovery Act, rather than the “ultimate” terminating sanction,
12 TRVFD requests this Court impose an evidentiary sanction precluding Plaintiff from testifying
13 at the trial.
14 In the alternative, TRVFD requests an order compelling and expediting Plaintiffs
15 deposition testimony, subject to the full range sanctions to terminating sanction and findings of
16 indirect contempt, if and when Plaintiff fails to comply. (See Creed -21, supra, 18 Cal.App. 5th
17 at fn. 11 (“disobedience of a court order outside of the presence of the judge . . . is categorized as
18 indirect contempt.” (citing Kohler v. Superior Court (2010) 181 Cal.App.4th 1153, 1159).)
19 REQUEST FOR ATTORNEY’S FEES
20 Section 2025.450(g)(2) provides for mandatory monetary sanctions against Plaintiff,
21 unless the Court finds that Plaintiff’s pattern of refusing to appear at his deposition has some
22 “substantial justification or that other circumstances make the imposition of the sanction unjust.”
23 There is no substantial justification or other circumstances to excuse the mandatory imposition
24 of sanction against Plaintiff in this situation.
25 Monetary sanctions are also available and appropriate for Plaintiff’s discovery misuse
26 under section 2023.010(d) for failing to submit to an authorized method of discovery in an effort
27 to avoid her deposition before trial. TRVFD requests the Court order Plaintiff to pay TRVFD
28 $1,575.00 for the attorney’s fees and costs, including court reporter charges for an expedited
4
MOTION TO EXCLUDE THE TRIAL TESTIMONY OF PLAINTIFF ASTRID SCHMID OR TO
COMPEL DEPOSITION; AND FOR SANCTIONS
1 Statement of Nonappearance, incurred for Plaintiff’s deposition, as follows: $1,125.00 for five
2 hours of attorney time at $225.00 per hour, to prepare the deposition notices, communicate with
3 Plaintiff, convene the deposition to obtain the Statement of Nonappearance; prepare, reply and
4 appear at the hearing concerning this Motion; and $450.00 for the Court Reporter invoice.
5 Additionally, section 2023.050 mandates a further $250.00 sum certain sanction, where,
6 as here, Plaintiff failed to produce documents identified in her deposition notice pursuant to
7 section 2025.210, (see section 2023.050(a)(1), as well as a further $250.00 sum certain sanction
8 if Plaintiff fails to produce the documents requested pursuant to section 2025.210 within seven
9 days before the Court hears this Motion under section 2025.450 (see section 2023.050(a)(2).)
10 CONCLUSION
11 Without any substantial justification and based on specious invalid objections, Plaintiff
12 deliberately refused to attend her duly noticed deposition and failed to produce documents called
13 for in her deposition notice. Because this is a recurring example of discovery abuse by Plaintiff in
14 this case, TRVFD requests the Court issue an Order precluding Plaintiff from testifying at the trial
15 set to begin on November 4, 2022.
16
17 DATED: September 2, 2022 JOHNSTON | THOMAS, Attorneys at Law, PC
18
By:
19 William L. Adams, Counsel for Defendant
TWO ROCK VOLUNTEER FIRE DEPARTMENT
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MOTION TO EXCLUDE THE TRIAL TESTIMONY OF PLAINTIFF ASTRID SCHMID OR TO
COMPEL DEPOSITION; AND FOR SANCTIONS
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1 William L. Adams SBN 166027 JOHNSTON | THOMAS, Attorneys at Law, PC 2 1400 N. Dutton Ave., Suite 21 Santa Rosa, CA 95401 3 Telephone: (707) 545-6542 Facsimile: (707) 545-1522 4 Email: wadams@johnstonthomas.com 5 Attorneys for Defendant TWO ROCK VOLUNTEER FIRE DEPARTMENT 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SONOMA 10 FREAR STEPHEN SCHMID AND Case No. SCV-266225 and consolidated ASTRID SCHMID, actions SCV-266731 and SCV-270339 11 Plaintiffs, DEFENDANT TWO ROCK VOLUNTEER 12 FIRE DEPARTMENT’S NOTICE OF v. MOTION AND MOTION TO EXCLUDE 13 THE TRIAL TESTIMONY OF PLAINTIFF ASTRID SCHMID OR TO 14 TWO ROCK VOLUNTEER FIRE COMPEL DEPOSITION: AND FOR DEPARTMENT, SANCTIONS 15 [CCP § 2025.450] Defendant. 16 Hearing Date: Hearing Time: 3:00 p.m. 17 Department: 19 18 AND CONSOLIDATED ACTIONS. Trial Call: November 4, 2022 Time: 8:30 a.m. 19 Department: 19 20 NOTICE IS HEREBY GIVEN TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 21 Pursuant to Code of Civil Procedure section 2025.450 1, at 3:00 pm, on __________ 2022, 22 in Department 19 of the Sonoma County Superior Court, 3055 Cleveland Avenue, Santa Rosa, 23 CA, the Court will hear the motion of Defendant Two Rock Volunteer Fire Department 24 (“TRVFD”) to exclude the trial testimony of Plaintiff ASTRID SCHMID (“Plaintiff”), or to 25 compel her deposition, because of Plaintiff’s refusal to attend her duly noticed deposition on 26 August 26, 2022. 27 28 1 All statutory references herein are to the Code of Civil Procedure unless otherwise indicated. 1 MOTION TO EXCLUDE THE TRIAL TESTIMONY OF PLAINTIFF ASTRID SCHMID OR TO COMPEL DEPOSITION; AND FOR SANCTIONS 1 This Motion will be based on this Memorandum of Points and Authorities; the 2 accompanying supporting declaration of TRVFD counsel William L Adams and documentary 3 exhibits attached thereto; on the Court’s own records and files in this consolidated action pursuant 4 to Evidence Code section 452(d); and on such additional argument as may be presented at the 5 hearing on this Motion. Additionally, TRVFD requests an award of $1,575.00 in attorney’s fees 6 and costs as sanctions against Plaintiff, as mandated in section 2025.450(g)(2); as well as 7 potential sum certain sanctions of a further $500.00, as mandated by section 2023.050(a). 8 PROCEDURAL CHRONOLOGY 9 The relevant chronology of Plaintiff’s refusal to attend her deposition is documented in 10 the certified court reporter Statement of Nonappearance attached as Exhibit 1 to the supporting 11 declaration of William L Adams (hereinafter “Adams Decl.”) 12 After this Court issued its Order after Hearing on July 29, 2022, consolidating these 13 actions, TRVFD issued a deposition notice with production of documents pursuant to section 14 2025.210 to Plaintiff on August 4, 2022, setting Plaintiff’s deposition for 9:00 am on August 26, 15 2022. (See Exhibits A and B to Statement of Nonappearance.) 16 On the evening of Friday, August 19, 2022, Plaintiff served via email invalid objections 17 to the deposition notice (still using the former case number that was consolidated three weeks 18 before), ignoring the Court’s consolidation of Plaintiff’s cases against TRVFD and arguing that 19 TRVFD was not a party and William L. Adams was not attorney of record for a party. (See 20 Exhibit C to Statement of Nonappearance). On Monday, August 22, 2022, TRVFD counsel 21 reviewed Plaintiff’s invalid objections and responded to Plaintiff, informing Plaintiff that the 22 objections were invalid, and that the deposition would proceed as noticed on August 26, 2022, 23 and further informing Plaintiff that this Motion would be brought if Plaintiff continued to refuse 24 to appear without substantial justification. (See Exhibit D to Statement of Nonappearance.) 25 On Wednesday, August 24, 2022, at the deposition of TRVFD Treasurer Paul Martin, 26 Plaintiff again informed TRVFD counsel that he was not going to attend her duly noticed 27 deposition, and TRVFD counsel informed Plaintiff the deposition would go on the record as 28 noticed at 9:00 am on August 26, 2022, to document her deliberate refusal to appear. 2 MOTION TO EXCLUDE THE TRIAL TESTIMONY OF PLAINTIFF ASTRID SCHMID OR TO COMPEL DEPOSITION; AND FOR SANCTIONS 1 On August 26, 2022, at approximately 8:45 am, TRVFD counsel received a call from 2 Deputy County Counsel Michael King, who represents Defendant County of Sonoma in this 3 consolidated action, who informed me that he would not attend unless Plaintiff appeared and 4 authorized me to state on the record that stipulated to proceeding with the deposition as noticed 5 in order to document Plaintiff’s refusal to appear. 6 On August 26, 2022, at approximately 1:05 pm, after there was no appearance or further 7 communication from Plaintiff and none of the documents called in the deposition notice pursuant 8 to section 2025.210 were produced, TRVFD counsel went on the record to document Plaintiff’s 9 nonappearance, as set forth in the transcript and supporting documents provided in Exhibit 1 to 10 Adams Decl. 11 Unfortunately, this is not the first occasion that Plaintiff has refused to attend her 12 deposition. On October 8, 2021, Plaintiff’s deposition with production of documents on October 13 18, 2021, was duly noticed and the deposition personally served at Plaintiff’s residence at 7585 14 Valley Ford Road in Petaluma, CA . Nevertheless, Plaintiff propounded invalid objection falsely 15 stating that he had not been served and refused to attend or produce documents requested Because 16 the Trial Court thereafter sua sponte vacated the trial set for November 19, 2021, no motion to 17 compel Plaintiff’s deposition under section 2025.450 was brought. However, the Court is 18 respectfully requested to consider Plaintiff’s documented pattern of refusing to comply with valid 19 discovery and refusing to provide her testimony on the eve of trial, in making its determinations 20 concerning this Motion. The October 8, 2021, deposition notice to Plaintiff and proof of service 21 are attached as Exhibit 2 to Adams Decl. 22 LEGAL ARGUMENT 23 Plaintiff’s objections arguing that TRVFD lacks standing to issue a deposition notice with 24 production of documents are clearly specious and invalid. Where invalid objections are 25 propounded, a deponent is subject to the sanction regime set forth in section 2025.450. (See 26 2025.450(a); see also Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702 (“The 27 question before us is not whether the trial should have imposed a lesser sanction; rather, the 28 question is whether the trial court abused its discretion by imposing the sanction it chose.” 3 MOTION TO EXCLUDE THE TRIAL TESTIMONY OF PLAINTIFF ASTRID SCHMID OR TO COMPEL DEPOSITION; AND FOR SANCTIONS 1 (quoting Liberty Mutual Fire Ins. Co v. LcL Administrators, Inc. (2008) 163 Cal.App.,4th 1093, 2 1105).) 3 Plaintiff’s pattern and demonstrated practice of willful discovery violations is particularly 4 egregious since Plaintiff is represented and advised by her husband, co-Plaintiff Frear Stephen 5 Schmid, a licensed California attorney with 42 years of experience. “[W]here a violation is 6 willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would 7 not produce compliance with the discovery rules, the trial court is justified in imposing the 8 ultimate sanction.” (Creed -21, supra, 18 Cal.App.5th at 702 (quoting Doppes v. Bentley Motors, 9 Inc. (2009) 174 Cal.App.4th 967, 992).) 10 Because Plaintiff has repeatedly refused to participate in discovery to provide her 11 testimony as required by the Discovery Act, rather than the “ultimate” terminating sanction, 12 TRVFD requests this Court impose an evidentiary sanction precluding Plaintiff from testifying 13 at the trial. 14 In the alternative, TRVFD requests an order compelling and expediting Plaintiffs 15 deposition testimony, subject to the full range sanctions to terminating sanction and findings of 16 indirect contempt, if and when Plaintiff fails to comply. (See Creed -21, supra, 18 Cal.App. 5th 17 at fn. 11 (“disobedience of a court order outside of the presence of the judge . . . is categorized as 18 indirect contempt.” (citing Kohler v. Superior Court (2010) 181 Cal.App.4th 1153, 1159).) 19 REQUEST FOR ATTORNEY’S FEES 20 Section 2025.450(g)(2) provides for mandatory monetary sanctions against Plaintiff, 21 unless the Court finds that Plaintiff’s pattern of refusing to appear at his deposition has some 22 “substantial justification or that other circumstances make the imposition of the sanction unjust.” 23 There is no substantial justification or other circumstances to excuse the mandatory imposition 24 of sanction against Plaintiff in this situation. 25 Monetary sanctions are also available and appropriate for Plaintiff’s discovery misuse 26 under section 2023.010(d) for failing to submit to an authorized method of discovery in an effort 27 to avoid her deposition before trial. TRVFD requests the Court order Plaintiff to pay TRVFD 28 $1,575.00 for the attorney’s fees and costs, including court reporter charges for an expedited 4 MOTION TO EXCLUDE THE TRIAL TESTIMONY OF PLAINTIFF ASTRID SCHMID OR TO COMPEL DEPOSITION; AND FOR SANCTIONS 1 Statement of Nonappearance, incurred for Plaintiff’s deposition, as follows: $1,125.00 for five 2 hours of attorney time at $225.00 per hour, to prepare the deposition notices, communicate with 3 Plaintiff, convene the deposition to obtain the Statement of Nonappearance; prepare, reply and 4 appear at the hearing concerning this Motion; and $450.00 for the Court Reporter invoice. 5 Additionally, section 2023.050 mandates a further $250.00 sum certain sanction, where, 6 as here, Plaintiff failed to produce documents identified in her deposition notice pursuant to 7 section 2025.210, (see section 2023.050(a)(1), as well as a further $250.00 sum certain sanction 8 if Plaintiff fails to produce the documents requested pursuant to section 2025.210 within seven 9 days before the Court hears this Motion under section 2025.450 (see section 2023.050(a)(2).) 10 CONCLUSION 11 Without any substantial justification and based on specious invalid objections, Plaintiff 12 deliberately refused to attend her duly noticed deposition and failed to produce documents called 13 for in her deposition notice. Because this is a recurring example of discovery abuse by Plaintiff in 14 this case, TRVFD requests the Court issue an Order precluding Plaintiff from testifying at the trial 15 set to begin on November 4, 2022. 16 17 DATED: September 2, 2022 JOHNSTON | THOMAS, Attorneys at Law, PC 18 By: 19 William L. Adams, Counsel for Defendant TWO ROCK VOLUNTEER FIRE DEPARTMENT 20 21 22 23 24 25 26 27 28 5 MOTION TO EXCLUDE THE TRIAL TESTIMONY OF PLAINTIFF ASTRID SCHMID OR TO COMPEL DEPOSITION; AND FOR SANCTIONS