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1 William L. Adams SBN 166027
WILLIAM L. ADAMS, PC
2 P.O. BOX 1050
Windsor, CA 95492-1050
3 Telephone: (707) 236-2176
Email: bill@wladamspc.com
4
Attorneys for Defendant
5 TWO ROCK VOLUNTEER FIRE DEPARTMENT
6
7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
COUNTY OF SONOMA
9
FREAR STEPHEN SCHMID AND Case No. SCV-266225 and consolidated
10 ASTRID SCHMID, actions SCV-266731 and SCV-270339
11 Plaintiffs, DEFENDANT TWO ROCK VOLUNTEER
FIRE DEPARTMENT’S EX PARTE
12 v. APPLICATION AND MEMORANDUM
OF POINTS AND AUTHORITIES TO
13 ADVANCE THE HEARING DATE FOR
TWO ROCK VOLUNTEER FIRE MOTION TO EXCLUDE TESTIMONY
14 DEPARTMENT, OR COMPEL DEPOSITION OF
PLAINTIFF ASTRID SCHMID
15 Defendant.
Ex Parte Date: September 26, 2022
16 Hearing Time: 10:30 a.m.
Department: 19
17
Trial Call: November 4, 2022
18 AND CONSOLIDATED ACTIONS. Time: 8:30 a.m.
Department: 19
19
20 I. INTRODUCTION
21 Pursuant to California Rule of Court 3.1200 et seq., this ex parte application seeks to
22 advance the hearing date on Defendant TWO ROCK VOLUNTEER FIRE DEPARTMENTs
23 Motion to Exclude the Trial Testimony of Plaintiff Astrid Schmid or to Compel Deposition ("Two
24 Rock's Discovery Motion re Testimony of Astrid Schmid"), from the presently set date of February
25 1, 2023, to a new hearing date of October 12, 2022 or October 19, 2022 – whichever is more
26 convenient for the Court. This ex parte application is made on the grounds that the existing trial date
27 is November 4, 2022, and pursuant to the timing requirements of the California Discovery Act, Two
28 1
DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S EX PARTE APPLICATION
AND MEMORANDUM OF POINTS AND AUTHORITIES TO ADVANCE THE HEARING DATE FOR MOTION TO
EXCLUDE TESTIMONY OR COMPEL DEPOSITION OF PLAINTIFF ASTRID SCHMID
1 Rock's Discovery Motion re Testimony of Astrid Schmid must be heard not later than 15 days
2 before the trial date, or in this case, October 20, 2022. (See CCP § 2024.020(a).)
3 II. FACTUAL BACKGROUND
4 On August 5, 2022, Defendant Two Rock Fire served its deposition notice with production
5 of documents on Plaintiff Astrid Schmid.
6 After Plaintiff Astrid Schmid refused to attend her deposition on August 26, 2022, Two
7 Rock's Discovery Motion re Testimony of Astrid Schmid was filed and served on September 2,
8 2022, on Plaintiffs and all appearing parties. A true and correct copy of Two Rock's Discovery
9 Motion re Testimony of Astrid Schmid, complete with supporting declarations and documents is
10 attached as Exhibit 1 to the supporting declaration of William L. Adams filed herewith. No
11 responsive pleadings have been filed by Plaintiffs or any other party, nor are any due.
12 As set forth in detail therein, Two Rock's Discovery Motion re Testimony of Astrid Schmid,
13 is based upon the refusal of Plaintiff Astrid Schmid to attend her deposition with production of
14 documents on August 26, 2022; and exacerbated by her prior refusal to attend her deposition with
15 production of documents on October 8, 2021, just prior to a November 2021 trial date which was
16 vacated sua sponte by the Court. In addition to refusing to appear at two depositions, Plaintiffs have
17 refused to provide any substantive responses to all written discovery concerning the issues, claims
18 and defenses to former (now consolidated) case number SCV-270339 propounded by Two Rock
19 Fire, demonstrating a consistent, continuing and an egregious example of sanctionable discovery
20 abuse. (See CCP § 2023.010 et. seq.)
21 On September 16, 2022, paralegal Jacqueline Schaap served Plaintiffs and all parties with
22 the conformed copy of the Notice of Hearing with the February 1, 2023 hearing date set by the
23 Court. See Exhibits 2 and 3 to declaration of William L. Adams in support.
24 As shown by email chain attached as Exhibit 4 to the Declaration of William L. Adams, on
25 September 16, 2022, counsel for Two Rock Fire requested Plaintiffs stipulate to an advance of the
26 hearing date for Two Rock's Discovery Motion re Testimony of Astrid Schmid, and notified
27 Plaintiffs that Two Rock Fire would present an ex parte application to advance the hearing date at
28 2
DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S EX PARTE APPLICATION
AND MEMORANDUM OF POINTS AND AUTHORITIES TO ADVANCE THE HEARING DATE FOR MOTION TO
EXCLUDE TESTIMONY OR COMPEL DEPOSITION OF PLAINTIFF ASTRID SCHMID
1 the Department 19 ex parte calendar at 10:30 am on September 26, 2022. There was no response
2 from Plaintiffs.
3 As of the date of submission of this ex parte application to the Court, there has been no
4 response from Plaintiff, and it is unknow whether Plaintiffs oppose the rescheduling of Two Rock's
5 Discovery Motion re Testimony of Astrid Schmid, to comply with the timeline requirements of the
6 Discovery Act.
7 III. LEGAL ARGUMENT
8 A. An Ex Parte Hearing is Appropriate in this Case
9 California Rules of Court, Rules 3.1201, 3.1202, and 3.1203, provide that ex parte
10 application shall not be made unless the party applying has given all other parties a minimum of 24
11 hours’ notice of the time and place the application will be made, absent a showing of exceptional
12 circumstances. A declaration of notice, including the date, time, manner, and name of the party
13 informed, any response, and whether opposition is expected, or a declaration stating the reasons why
14 notice should not be required, must accompany every request for an ex parte order. (Datig v. Dove
15 Books, Inc. (1999) 73 Cal.App.4th 964, 976.)
16 As soon as the Court provided the parties with information that Two Rock's Discovery
17 Motion re Testimony of Astrid Schmid was set for February 1, 2023 (three months after the date that
18 trial is to begin in this consolidated date), Plaintiffs were notified of this ex parte application on
19 Friday, September 16, 2022; and served with the ex parte application documents prior to 10:00 a.m.
20 on Friday, September 23, 2022 – one Court day prior and 72 hours prior to the ex parte application
21 being submitted to the Court for consideration. Defendant Two Rock Fire has demonstrated due
22 diligence and good faith in satisfying all of the requirements for an ex parte hearing in Department
23 19 at 10:30 a.m. on Monday September 26, 2022.
24 B. Good Cause Exists for Advancing the Hearing Date
25 There is no prejudice to Plaintiffs in advancing the hearing date for Two Rock's Discovery
26 Motion re Testimony of Astrid Schmid. Plaintiffs were served with Two Rock's Discovery Motion
27 re Testimony of Astrid Schmid more than three weeks ago on September 2, 2022, and will have
28 3
DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S EX PARTE APPLICATION
AND MEMORANDUM OF POINTS AND AUTHORITIES TO ADVANCE THE HEARING DATE FOR MOTION TO
EXCLUDE TESTIMONY OR COMPEL DEPOSITION OF PLAINTIFF ASTRID SCHMID
1 ample time to prepare any responsive papers in the intervening several weeks before the advanced
2 hearing date in mid-October.
3 A statement of judicial policy supporting flexibility, judicial discretion, and professional
4 courtesy in granting continuances and resetting hearing dates is provided in the opinion of Pham v.
5 Nguyen (1997) 54 Cal.App.4th, 11, 15:
6
“Of course continuances should not be used as a dilatory tactic, and of
7 course good cause should be present. The law should also encourage professional
courtesy between opposing counsel which is precisely what the Legislature did in
8 section 595.2.
9 The law should not create an incentive to take the scorched earth, feet-to-
the-fire attitude that is all too common in litigation today. Bitterly fought
10
continuance motions are not particularly productive for either the administration of
11 justice generally or the interests of the litigants particularly. When opposing
counsel needs a continuance, courts should look to section 595.2 as a statement of
12 policy in favor of professional courtesy, not churlishness.”
13 Id. at 17 (emphasis in original, internal citations omitted).
14 C. Discovery Act Factors Support a Finding of Good Cause
15 The timing urgency arising in this ex parte is caused solely by Plaintiffs’ discovery abuse
16 and refusal to provide testimony and produce documents concerning their claims and allegation.
17 Defendant Two Rock Fire filed its Two Rock's Discovery Motion re Testimony of Astrid Schmid, as
18 soon as the certified transcript was available and immediately sought ex parte relief to reschedule the
19 hearing date as soon as Court notified the parties of the February 2023 hearing date.
20 Plaintiff’s willful failure and refusal to attend a deposition is a sanctionable misuse and abuse
21 of discovery (see, e.g., CCP 2023.010 (d) (“failing to respond or to submit to an authorized method
22 of discovery”) and (e) (“making, without substantial justification, an unmeritorious objection to
23 discovery”).) The Court should exercise its authority to enforce the Discovery Act against
24 Plaintiffs, including, but not limited to, estoppel against Plaintiffs based on their bad faith deliberate
25 refusal to participate in or provide discovery required by the Discovery Act.
26
27
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DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S EX PARTE APPLICATION
AND MEMORANDUM OF POINTS AND AUTHORITIES TO ADVANCE THE HEARING DATE FOR MOTION TO
EXCLUDE TESTIMONY OR COMPEL DEPOSITION OF PLAINTIFF ASTRID SCHMID
1 IV. CONCLUSION
2 The Court is respectfully requested to grant this ex parte request to advance the hearing date
3 on the County’s Motion to Exclude the Trial Testimony of Plaintiff Astrid Schmid or to Compel
4 Deposition from February 1, 2023, until either October 12, 2022 or October 19, 2022.
5 For the convenience of the Court, a proposed Order is provided with this ex parte
6 application.
7
8 Dated: September 23, 2022 WILLIAM L. ADAMS, PC
9
10 By:
William L. Adams
11 Attorneys for Defendant
Two Rock Volunteer Fire Department
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DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S EX PARTE APPLICATION
AND MEMORANDUM OF POINTS AND AUTHORITIES TO ADVANCE THE HEARING DATE FOR MOTION TO
EXCLUDE TESTIMONY OR COMPEL DEPOSITION OF PLAINTIFF ASTRID SCHMID
Preview
1 William L. Adams SBN 166027 WILLIAM L. ADAMS, PC 2 P.O. BOX 1050 Windsor, CA 95492-1050 3 Telephone: (707) 236-2176 Email: bill@wladamspc.com 4 Attorneys for Defendant 5 TWO ROCK VOLUNTEER FIRE DEPARTMENT 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 COUNTY OF SONOMA 9 FREAR STEPHEN SCHMID AND Case No. SCV-266225 and consolidated 10 ASTRID SCHMID, actions SCV-266731 and SCV-270339 11 Plaintiffs, DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S EX PARTE 12 v. APPLICATION AND MEMORANDUM OF POINTS AND AUTHORITIES TO 13 ADVANCE THE HEARING DATE FOR TWO ROCK VOLUNTEER FIRE MOTION TO EXCLUDE TESTIMONY 14 DEPARTMENT, OR COMPEL DEPOSITION OF PLAINTIFF ASTRID SCHMID 15 Defendant. Ex Parte Date: September 26, 2022 16 Hearing Time: 10:30 a.m. Department: 19 17 Trial Call: November 4, 2022 18 AND CONSOLIDATED ACTIONS. Time: 8:30 a.m. Department: 19 19 20 I. INTRODUCTION 21 Pursuant to California Rule of Court 3.1200 et seq., this ex parte application seeks to 22 advance the hearing date on Defendant TWO ROCK VOLUNTEER FIRE DEPARTMENTs 23 Motion to Exclude the Trial Testimony of Plaintiff Astrid Schmid or to Compel Deposition ("Two 24 Rock's Discovery Motion re Testimony of Astrid Schmid"), from the presently set date of February 25 1, 2023, to a new hearing date of October 12, 2022 or October 19, 2022 – whichever is more 26 convenient for the Court. This ex parte application is made on the grounds that the existing trial date 27 is November 4, 2022, and pursuant to the timing requirements of the California Discovery Act, Two 28 1 DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S EX PARTE APPLICATION AND MEMORANDUM OF POINTS AND AUTHORITIES TO ADVANCE THE HEARING DATE FOR MOTION TO EXCLUDE TESTIMONY OR COMPEL DEPOSITION OF PLAINTIFF ASTRID SCHMID 1 Rock's Discovery Motion re Testimony of Astrid Schmid must be heard not later than 15 days 2 before the trial date, or in this case, October 20, 2022. (See CCP § 2024.020(a).) 3 II. FACTUAL BACKGROUND 4 On August 5, 2022, Defendant Two Rock Fire served its deposition notice with production 5 of documents on Plaintiff Astrid Schmid. 6 After Plaintiff Astrid Schmid refused to attend her deposition on August 26, 2022, Two 7 Rock's Discovery Motion re Testimony of Astrid Schmid was filed and served on September 2, 8 2022, on Plaintiffs and all appearing parties. A true and correct copy of Two Rock's Discovery 9 Motion re Testimony of Astrid Schmid, complete with supporting declarations and documents is 10 attached as Exhibit 1 to the supporting declaration of William L. Adams filed herewith. No 11 responsive pleadings have been filed by Plaintiffs or any other party, nor are any due. 12 As set forth in detail therein, Two Rock's Discovery Motion re Testimony of Astrid Schmid, 13 is based upon the refusal of Plaintiff Astrid Schmid to attend her deposition with production of 14 documents on August 26, 2022; and exacerbated by her prior refusal to attend her deposition with 15 production of documents on October 8, 2021, just prior to a November 2021 trial date which was 16 vacated sua sponte by the Court. In addition to refusing to appear at two depositions, Plaintiffs have 17 refused to provide any substantive responses to all written discovery concerning the issues, claims 18 and defenses to former (now consolidated) case number SCV-270339 propounded by Two Rock 19 Fire, demonstrating a consistent, continuing and an egregious example of sanctionable discovery 20 abuse. (See CCP § 2023.010 et. seq.) 21 On September 16, 2022, paralegal Jacqueline Schaap served Plaintiffs and all parties with 22 the conformed copy of the Notice of Hearing with the February 1, 2023 hearing date set by the 23 Court. See Exhibits 2 and 3 to declaration of William L. Adams in support. 24 As shown by email chain attached as Exhibit 4 to the Declaration of William L. Adams, on 25 September 16, 2022, counsel for Two Rock Fire requested Plaintiffs stipulate to an advance of the 26 hearing date for Two Rock's Discovery Motion re Testimony of Astrid Schmid, and notified 27 Plaintiffs that Two Rock Fire would present an ex parte application to advance the hearing date at 28 2 DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S EX PARTE APPLICATION AND MEMORANDUM OF POINTS AND AUTHORITIES TO ADVANCE THE HEARING DATE FOR MOTION TO EXCLUDE TESTIMONY OR COMPEL DEPOSITION OF PLAINTIFF ASTRID SCHMID 1 the Department 19 ex parte calendar at 10:30 am on September 26, 2022. There was no response 2 from Plaintiffs. 3 As of the date of submission of this ex parte application to the Court, there has been no 4 response from Plaintiff, and it is unknow whether Plaintiffs oppose the rescheduling of Two Rock's 5 Discovery Motion re Testimony of Astrid Schmid, to comply with the timeline requirements of the 6 Discovery Act. 7 III. LEGAL ARGUMENT 8 A. An Ex Parte Hearing is Appropriate in this Case 9 California Rules of Court, Rules 3.1201, 3.1202, and 3.1203, provide that ex parte 10 application shall not be made unless the party applying has given all other parties a minimum of 24 11 hours’ notice of the time and place the application will be made, absent a showing of exceptional 12 circumstances. A declaration of notice, including the date, time, manner, and name of the party 13 informed, any response, and whether opposition is expected, or a declaration stating the reasons why 14 notice should not be required, must accompany every request for an ex parte order. (Datig v. Dove 15 Books, Inc. (1999) 73 Cal.App.4th 964, 976.) 16 As soon as the Court provided the parties with information that Two Rock's Discovery 17 Motion re Testimony of Astrid Schmid was set for February 1, 2023 (three months after the date that 18 trial is to begin in this consolidated date), Plaintiffs were notified of this ex parte application on 19 Friday, September 16, 2022; and served with the ex parte application documents prior to 10:00 a.m. 20 on Friday, September 23, 2022 – one Court day prior and 72 hours prior to the ex parte application 21 being submitted to the Court for consideration. Defendant Two Rock Fire has demonstrated due 22 diligence and good faith in satisfying all of the requirements for an ex parte hearing in Department 23 19 at 10:30 a.m. on Monday September 26, 2022. 24 B. Good Cause Exists for Advancing the Hearing Date 25 There is no prejudice to Plaintiffs in advancing the hearing date for Two Rock's Discovery 26 Motion re Testimony of Astrid Schmid. Plaintiffs were served with Two Rock's Discovery Motion 27 re Testimony of Astrid Schmid more than three weeks ago on September 2, 2022, and will have 28 3 DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S EX PARTE APPLICATION AND MEMORANDUM OF POINTS AND AUTHORITIES TO ADVANCE THE HEARING DATE FOR MOTION TO EXCLUDE TESTIMONY OR COMPEL DEPOSITION OF PLAINTIFF ASTRID SCHMID 1 ample time to prepare any responsive papers in the intervening several weeks before the advanced 2 hearing date in mid-October. 3 A statement of judicial policy supporting flexibility, judicial discretion, and professional 4 courtesy in granting continuances and resetting hearing dates is provided in the opinion of Pham v. 5 Nguyen (1997) 54 Cal.App.4th, 11, 15: 6 “Of course continuances should not be used as a dilatory tactic, and of 7 course good cause should be present. The law should also encourage professional courtesy between opposing counsel which is precisely what the Legislature did in 8 section 595.2. 9 The law should not create an incentive to take the scorched earth, feet-to- the-fire attitude that is all too common in litigation today. Bitterly fought 10 continuance motions are not particularly productive for either the administration of 11 justice generally or the interests of the litigants particularly. When opposing counsel needs a continuance, courts should look to section 595.2 as a statement of 12 policy in favor of professional courtesy, not churlishness.” 13 Id. at 17 (emphasis in original, internal citations omitted). 14 C. Discovery Act Factors Support a Finding of Good Cause 15 The timing urgency arising in this ex parte is caused solely by Plaintiffs’ discovery abuse 16 and refusal to provide testimony and produce documents concerning their claims and allegation. 17 Defendant Two Rock Fire filed its Two Rock's Discovery Motion re Testimony of Astrid Schmid, as 18 soon as the certified transcript was available and immediately sought ex parte relief to reschedule the 19 hearing date as soon as Court notified the parties of the February 2023 hearing date. 20 Plaintiff’s willful failure and refusal to attend a deposition is a sanctionable misuse and abuse 21 of discovery (see, e.g., CCP 2023.010 (d) (“failing to respond or to submit to an authorized method 22 of discovery”) and (e) (“making, without substantial justification, an unmeritorious objection to 23 discovery”).) The Court should exercise its authority to enforce the Discovery Act against 24 Plaintiffs, including, but not limited to, estoppel against Plaintiffs based on their bad faith deliberate 25 refusal to participate in or provide discovery required by the Discovery Act. 26 27 28 4 DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S EX PARTE APPLICATION AND MEMORANDUM OF POINTS AND AUTHORITIES TO ADVANCE THE HEARING DATE FOR MOTION TO EXCLUDE TESTIMONY OR COMPEL DEPOSITION OF PLAINTIFF ASTRID SCHMID 1 IV. CONCLUSION 2 The Court is respectfully requested to grant this ex parte request to advance the hearing date 3 on the County’s Motion to Exclude the Trial Testimony of Plaintiff Astrid Schmid or to Compel 4 Deposition from February 1, 2023, until either October 12, 2022 or October 19, 2022. 5 For the convenience of the Court, a proposed Order is provided with this ex parte 6 application. 7 8 Dated: September 23, 2022 WILLIAM L. ADAMS, PC 9 10 By: William L. Adams 11 Attorneys for Defendant Two Rock Volunteer Fire Department 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S EX PARTE APPLICATION AND MEMORANDUM OF POINTS AND AUTHORITIES TO ADVANCE THE HEARING DATE FOR MOTION TO EXCLUDE TESTIMONY OR COMPEL DEPOSITION OF PLAINTIFF ASTRID SCHMID