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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
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF SONOMA
10 FREAR STEPHEN SCHMID AND Case No. SCV-266225 and consolidated actions
ASTRID SCHMID, SCV-266731 and SCV-270339
11
Plaintiffs, NOTICE OF MOTION AND DEFENDANT
12 TWO ROCK VOLUNTEER FIRE
v. DEPARTMENT’S MOTION TO COMPEL
13 ANSWERS AND PRODUCTION OF
DOCUMENTS AT CONTINUED
14 TWO ROCK VOLUNTEER FIRE DEPOSTION OF PLAINTIFF FREAR
DEPARTMENT, STEPHEN SCHMID; AND FOR SANCTIONS
15 [CCP § 2025.480]
Defendant.
16 Hearing Date:
Time:
17 Department: 19
18 AND CONSOLIDATED ACTIONS Trial Call: TBD
19
20 NOTICE IS HEREBY GIVEN TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
21 Pursuant to Code of Civil Procedure section 2025.480 1, at 3:00 pm, on ____________, 2022,
22 in Department 19 of the Sonoma County Superior Court, 3055 Cleveland Avenue, Santa Rosa, CA,
23 the Court will hear the motion of Defendant Two Rock Volunteer Fire Department, also know as
24 Two Rock Fire Department (“Two Rock Fire”) to compel Plaintiff FREAR STEPHEN SCHMID
25 (“Plaintiff”), to answer questions and produce documents at his deposition, because of Plaintiff’s
26 failure to answer questions and produce documents at his Court-ordered deposition on October 27,
27
28 1
All statutory references herein are to the Code of Civil Procedure unless otherwise indicated.
-1-
NOTICE OF MOTION AND DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S MOTION TO COMPEL
ANSWERS AND PRODUCTION OF DOCUMENTS AT CONTINUED DEPOSTION OF
PLAINTIFF FREAR STEPHEN SCHMID; AND FOR SANCTIONS [CCP § 2025.480]
1 2022. Additionally, because of Plaintiff’s bad faith failure to comply with Court’s order which
2 impeded and delayed the deposition, Two Rock Fire requests that seven-hour limitation on
3 Plaintiff’s limitation be waived pursuant to section 2025.290(a).
4 This Motion will be based on this Memorandum of Points and Authorities; the Separate
5 Statement pursuant to California Rule of Court 3.1345; the accompanying supporting declaration of
6 Two Rock Fire counsel William L. Adams and documentary exhibits attached thereto; on the
7 Court’s own records and files in this consolidated action pursuant to Evidence Code section 452(d);
8 and on such additional argument as may be presented at the hearing on this Motion.
9 Additionally, Two Rock Fire renews its request for an award of $2,075.00 in attorney’s fees
10 and costs as sanctions against Plaintiff (which was reserved without prejudice by the Court in
11 October 2022 when it granted Two Rock Fire’s first Motion to Compel); and requests additional
12 sanctions for this motion in the amount of $5,250.00, as mandated in section 2025.480(j); as well as
13 potential sum certain sanctions of a further $500.00, as mandated by section 2023.050(a).
14 PROCEDURAL CHRONOLOGY
15 The relevant chronology of Plaintiff’s refusal to attend his deposition and Plaintiff’s
16 subsequent failure to answer questions and produce documents at his Court-ordered deposition is
17 documented below. Since all the documents and pleadings are already in the Court’s file, the
18 multiple exhibits are not submitted again for the Motion to Compel.
19 After this Court issued its Order after Hearing on July 29, 2022, consolidating these actions,
20 Two Rock Fire issued a deposition notice with production of nine categories of documents pursuant
21 to sections 2025.210 and 2025.220 to Plaintiff on August 4, 2022, setting Plaintiff’s deposition for
22 9:00 am on August 26, 2022. A true and correct copy of the Two Rock Fire deposition notice to
23 Plaintiff is attached as Exhibit 1 to the supporting declaration of William L. Adams (hereinafter
24 “Adams Decl.”).
25 On August 26, 2022, at approximately 9:15 am, after there was no appearance by Plaintiff
26 and none of the documents called in the deposition notice were produced, Two Rock Fire counsel
27 went on the record to document Plaintiff’s nonappearance. This Statement of Nonappearance was
28 the basis for Two Rock Fire’s successful Motion to obtain a Court-order compelling Plaintiff’s
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NOTICE OF MOTION AND DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S MOTION TO COMPEL
ANSWERS AND PRODUCTION OF DOCUMENTS AT CONTINUED DEPOSTION OF
PLAINTIFF FREAR STEPHEN SCHMID; AND FOR SANCTIONS [CCP § 2025.480]
1 deposition.
2 On September 2, 2022, after the transcript was received, Two Rock Fire filed its first Motion
3 to compel Plaintiff’s deposition. A true and correct five-page Motion (without the supporting
4 documentary exhibits) is attached as Exhibit 2 to Adams Decl.
5 On September 23, 2022, after the parties were informed that the Court had set the Motion for
6 hearing in February 2023, three months after the trial date, Two Rock Fire immediately moved to
7 advance the hearing date to October 14, 2022, so that Plaintiff’s deposition could be completed
8 before trial
9 On October 14, 2022, Judge Zuniga granted Two Rock Fire’s motion and ordered Plaintiff’s
10 deposition to occur on October 27, 2022, in a stipulated Order entered on October 20, 2022. A true
11 and correct copy of the Order entered 10/20/22 is attached as Exhibit 3 to Adams Decl.
12 On October 27, 2022, Plaintiff’s deposition was commenced (with Plaintiff representing
13 himself) – as set forth in accompanying Separate Statement – and then suspended after no
14 documents were produced, numerous unmeritorious objections, and Plaintiff’s repeated failure to
15 answer questions. A true and correct copy of Plaintiff’s deposition transcript (excluding the word
16 index and exhibits) with highlighted excerpts which are also cross-referenced in the Separate
17 Statement are attached Exhibit 4 to Adams Decl.
18 During Plaintiff’s deposition, reference was made to “thousands of documents” and “all the
19 documents” in relation to an October 26, 2022 email from Plaintiff to defense counsel that was
20 authenticated and marked as Exhibit 9 to Plaintiff Astrid Schmid’s deposition. A true and correct
21 copy of the 10/26/22 email identified as Exhibit 9 to Plaintiff’s deposition is attached as Exhibit 5 to
22 Adams Decl.
23 On November 1, 2022, Two Rock Fire filed its Motion in Limine #3 of 3, seeking to exclude
24 Plaintiff’s testimony or use of documents at trial. A true and correct the eight-page Motion in
25 Limine (without the supporting documentary exhibits) is attached as Exhibit 6 to Adams Decl
26 On November 14, 2022, Certified Shorthand Reporter Maximillian A. Contreras, CSR
27 #13876, sent the Reporters Certificate and draft October 27, 2022 deposition transcript to Plaintiff.
28 Plaintiff did not respond to the Review, Approval and Signature forms sent by the Court Reporter
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NOTICE OF MOTION AND DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S MOTION TO COMPEL
ANSWERS AND PRODUCTION OF DOCUMENTS AT CONTINUED DEPOSTION OF
PLAINTIFF FREAR STEPHEN SCHMID; AND FOR SANCTIONS [CCP § 2025.480]
1 within the 30-day statutory period with any edits or changes; and the transcript and the record of
2 Plaintiff’s deposition is therefore complete effective December 13, 2022. See sections 2025.530(d);
3 2025.540.
4 On December 29, 2022, Two Rock Fire counsel sent a ten-page meet and confer letter, with
5 an additional copy of the Court Reporter’s Review, Approval and Signature letter, requesting that
6 Plaintiff provide the documents called for in the deposition notice and stipulate to a continued
7 deposition to complete Defendants’ examination of Plaintiff. Plaintiff did not respond. A true and
8 correct copy of the ten-page meet and confer letter sent to Plaintiff on December 29, 2022 is attached
9 as Exhibit 7 to Adams Decl.
10 LEGAL ARGUMENT
11 1. COMPLIANCE WITH MEET AND CONFER FOR THIS TIMELY MOTION
12 Pursuant to section 2025.480(b), a motion to compel for failure to answer or produce
13 documents at a deposition “shall be made no later than 60 days after completion of the record and
14 shall be accompanied by a meet and confer declaration under Section 2016.040.” Section
15 2025.480(b).
16 This motion is timely. As documented in Exhibit 7, the completion of the record of
17 Plaintiff’s deposition was December 14, 2022, and the last day to file the motion is February 11,
18 2022, sixty days later. Additionally, as authenticated in the supporting declaration of William L.
19 Adams, the meet and confer letter in Exhibit 7 satisfies the requirements of sections 2016.040 and
20 2025.480(b).
21 2. FAILURE TO ANSWER QUESTIONS AND PRODUCE DOCUMENTS
22 As shown in the deposition notice in Exhibit 1, pursuant to sections 2025.210 and 2025.220,
23 Two Rock Fire specifically requested nine categories of documents for Plaintiff to produce at the
24 deposition. The document demand specified in the deposition notice remained in effect when
25 Plaintiff’s Court-ordered deposition commenced on October 27, 2022. At his deposition, Plaintiff
26 failed to answer questions and refused to produce documents. Section 2025.460(e) provides:
27 “If a deponent failures to answer any questions or to produce any documents,
28 electronically stored information, or tangible thing under deponent’s control that is specified
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NOTICE OF MOTION AND DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S MOTION TO COMPEL
ANSWERS AND PRODUCTION OF DOCUMENTS AT CONTINUED DEPOSTION OF
PLAINTIFF FREAR STEPHEN SCHMID; AND FOR SANCTIONS [CCP § 2025.480]
in the deposition notice or a deposition subpoena, the party seeking that answer or
1 production may adjourn the deposition or complete the examination on other matters without
2 waiving the right at a later time to move for an order compelling that answer or production
under Section 2025.480.”
3
Section 2025.460(e ) (emphasis added).
4
Counsel advised Plaintiff, and Plaintiff refused to acknowledges and comply, with the
5
statutory requirement that “[e]xamination and cross-examination of the deponent shall proceed as
6
permitted at trial under the provisions of the Evidence Code.” CCP section 2025.330(d).) As set
7
forth in the accompanying Separate Statement pursuant to California Rule of Court and documented
8
in the annotated Certified Transcript of Plaintiff’s deposition attached as Exhibit 4, the following are
9
a few illustrative examples of Plaintiff’s persistent and repeated refusal to testify as if at trial, failure
10
to answer questions and refusal to produce documents called for in the deposition notice.
11
With regard to Plaintiff’s claims of diminution of value of his property adjacent to the Two
12
Rock Fire project, Plaintiff repeatedly refused to provide either testimony or documentary evidence
13
to support their claims:
14
“Mr. Adams: All right. And what was the purchase price when you purchased the
15 property in July 1996? Mr. Schmid
Mr. Schmid: I really don’t know, frankly. I object on the grounds it’s relevant or even
16 calculated relevant evidence. But I relayed don’t know it off the top of my head.
Mr. Adams: Well, if you’re claiming some diminution in value of your property now
17 and in the last few years because of the red building project – –
Mr. Schmid: Mm-hmm.
18 Mr. Adams: – – the reason I’m asking is to lead to relevant information, is to get a
benchmark. Your property is probably worth something now and we need to start with what
19 it was like when you purchased it. That’s why it’s relevant, with that representation.
Mr. Schmid: I disagree, but I hear what you said Paul – – I mean Bill. I was looking
20 at Paul when I said that.”
21 (Exhibit 4, Deposition Transcript, page 15, lines 6-23.) (emphasis added)
22 Mr. Adams: Okay. Exhibit 1 [the deposition notice to Plaintiff] has nine categories
of documents, and were going to talk about the link that was sent yesterday in a little while.
23 But other than the link that was sent yesterday that I represent to you had 97 photographs,
24 29 screenshots, and one .MP4 file, have you provided any of the documents called for in this
deposition subpoena?
25 Mr. Schmid: Yes, we provided all those documents.
Mr. Adams: When were those documents provided, to your understanding?
26 Mr. Schmid: Over the last two-and-a-half years of this litigation.
Mr. Adams: and you are referring to – – because were going to talk about it – – what
27 had been marked as Exhibit 9? Were going to include in your – – the email at 8:35 yesterday
28 morning that you and your wife sent to Mr. King and I?
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NOTICE OF MOTION AND DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S MOTION TO COMPEL
ANSWERS AND PRODUCTION OF DOCUMENTS AT CONTINUED DEPOSTION OF
PLAINTIFF FREAR STEPHEN SCHMID; AND FOR SANCTIONS [CCP § 2025.480]
Mr. Schmid: Me.
1 Mr. King: We went through that yesterday. You’ve got to say “me.”
2 [Brief off-the-record discussion]
Mr. Schmid: Yes. This is an email that I along with my wife sent you yesterday
3 morning
Mr. Adams: And those documents that you provided throughout this litigation is
4 referred to in the large second paragraph of Exhibit 9 to your wife’s deposition.
Mr. Schmid: Correct.”
5
6 (Id., page 40, line 3 through page 41, line 6.)
7 Despite the statutory requirement in section 2025.330(d) that deposition examination and
8 testimony proceed as permitted at trial, Plaintiff refused to answer questions, interposing objections
9 while acting his own attorney, and persisted in narrative responses extending to 11, 12, and 30
10 minutes – at one point walking out of the deposition in midst of questioning. See Exhibit 4,
11 Deposition Transcript at page 133, line 19 through page 134, line 16; page 140, lines 7-17; page 143,
12 line 9 through page 144, line 12; page 148, lines 6-24.) Additionally, Plaintiff’s intemperate manner,
13 raising his voice, and failure to answer questions at one point required Managing Partner Ryan
14 Thomas of the Johnston Thomas law firm (where the deposition was taking place) to intervene to
15 find out why Plaintiff was shouting and disrupting the office. This was during a sequence of
16 questions concerning the written setback waiver Plaintiff himself drafted. (See Id., at page 111, line
17 11 through page 112, line 7.)
18 Notwithstanding the scope and intent of the Court Orders in July 2022 and the granting of
19 Two Rock Fire’s first Motion to Compel in October 2022, Plaintiff objected without merit that the
20 County was not authorized to participate in the deposition in this consolidated case:
21 “Mr. Adams: Okay. And discovery is open in the fraud case, which is why were here?
22 Mr. Schmid: For the fraud case; correct. And my position is that discovery is limited
to the parties to this – – to the fraud case.
23 Mr. King: That’s not what the order says, but thank you. I understand your
position.
24 Mr. Schmid: I’m going to object to – –
Mr. Adams: we’re not there yet.
25 Mr. Schmid: I am just going to put on the record – – since this is the first time that
26 Mr. King has stated something on the record – – that plaintiffs dispute his right to partake
actively in this discovery.”
27
28 (Exhibit 4, Deposition Transcript, page 42, line 18 through page 43, lines 5.) (emphasis added)
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NOTICE OF MOTION AND DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S MOTION TO COMPEL
ANSWERS AND PRODUCTION OF DOCUMENTS AT CONTINUED DEPOSTION OF
PLAINTIFF FREAR STEPHEN SCHMID; AND FOR SANCTIONS [CCP § 2025.480]
1 “Mr. King: If Mr. Schmid’s going to answer a couple questions. I don’t know of is
2 going to answer or not. Are you going to answer?
Mr. Schmid: I’ll make my same objections. I’m willing to answer questions.
3 [Off the record conversation]
Mr. King: Go ahead. He wanted to make some comment about the general objections
4 still being in place as to the fact that this one fraud cause of action, County of Sonoma is not
specifically named as a party. You want to make some objection about that?
5 Mr. Schmid: Yeah, just what we talked about yesterday. Basically I do not think it’s
6 proper for you to ask questions or be involved in the discovery in this matter. Were not
waiving that. I’ll answer the questions without prejudice to that.”
7
(Id., page 162, line 16 through page 163, line 7.)
8
As Plaintiffs persistent refusal to testify as if at trial and failure to answer questions
9
continued throughout his Court-ordered deposition, Plaintiff was notified (and insisted several times)
10
during the deposition that both Defendants Two Rock Fire and the County would seek judicial
11
review and a motion to compel answers and production of documents. (See Parker v.Wolters Kluver
12
U.S., Inc. (2007) 149 Cal.App.4th 285, 295.):
13
Mr. Adams: “Okay. Thank you for clarifying that. As you know through the
14 deposition today, we have had a number of issues that may need to get the court or referee to
deal with them. So I want to reserve some time, both as you had shared, for you to testify
15 some more; for us to get some issues clarified, if need be, with the court. What I’m going to
16 do then is and for right now my examination without adjourning the deposition.”
17 (Id., page 162, lines 4-12.)
Mr. King: “That’s the questions that I have at the present time. I’m not waiving any
18 rights to ask further questions after. You are either going to answer or not answer those that
Mr. Adams may have for you. Thank you very much for your attention for this period of
19 time.”
20 (Id. Page 187, lines 1-5.)
21 Plaintiff’s failure to answer questions and refusal to produce documents expressly called for
22 in the Two Rock Fire deposition notice are clearly specious and invalId. Where invalid objections
23 are propounded, a deponent is subject to the sanction regime set forth in section 2025.450 and
24 2025.480. (See Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702 (“The question before
25 us is not whether the trial should have imposed a lesser sanction; rather, the question is whether the
26 trial court abused its discretion by imposing the sanction it chose.” (quoting Liberty Mutual Fire Ins.
27 Co v. LcL Administrators, Inc. (2008) 163 Cal.App.,4th 1093, 1105).)
28
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NOTICE OF MOTION AND DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S MOTION TO COMPEL
ANSWERS AND PRODUCTION OF DOCUMENTS AT CONTINUED DEPOSTION OF
PLAINTIFF FREAR STEPHEN SCHMID; AND FOR SANCTIONS [CCP § 2025.480]
1 Unfortunately, this is not the first occasion in this case that Plaintiff has refused to attend his
2 deposition and failed to comply with a deposition notice. On October 8, 2021, Plaintiff’s deposition
3 with production of documents to take place on October 19, 2021, was duly noticed and the
4 deposition personally served at Plaintiff’s residence at7585 Valley Ford Road in Petaluma, CA .
5 Nevertheless, Plaintiff propounded invalid objection falsely stating that he had not been served and
6 refused to attend or produce documents called for in the deposition notice. Because the Trial Court
7 thereafter sua sponte vacated the trial set for November 19, 2021, no motion to compel Plaintiff’s
8 deposition under section 2025.450 was brought. However, the Court is respectfully requested to
9 consider Plaintiff’s documented pattern of refusing to comply with valid discovery and refusing to
10 provide his testimony on the eve of trial, in making its determinations concerning this Motion.
11 Plaintiff’s pattern and demonstrated practice of willful discovery violations is particularly
12 egregious since Plaintiff is represented and advised by her husband, co-Plaintiff Frear Stephen
13 Schmid, a licensed California attorney with more than 40 years of experience. “[W]here a violation
14 is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would
15 not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate
16 sanction.” (Creed -21, supra, 18 Cal.App.5th at 702 (quoting Doppes v. Bentley Motors, Inc. (2009)
17 174 Cal.App.4th 967, 992).)
18 Two Rock Fire requests an order compelling and expediting Plaintiffs deposition testimony,
19 subject to the full range sanctions to terminating sanction and findings of indirect contempt, if and
20 when Plaintiff fails to comply. (See Creed -21, supra, 18 Cal.App. 5th at fn. 11 (“disobedience of a
21 court order outside of the presence of the judge . . . is categorized as indirect contempt.” (citing
22 Kohler v. Superior Court (2010) 181 Cal.App.4th 1153, 1159).)
23 In the alternative, because Plaintiff has repeatedly refused to participate in discovery to
24 provide her testimony as required by the Discovery Act, rather than the “ultimate” terminating
25 sanction, Two Rock Fire requests this Court impose an evidentiary sanction precluding Plaintiff
26 from testifying at the trial. The rationale and good faith basis for issue or evidence sanctions is set
27 forth in detail in Two Rock Fire’s Motion in Limine #3 of 3, attached hereto as Exhibit 6.
28
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NOTICE OF MOTION AND DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S MOTION TO COMPEL
ANSWERS AND PRODUCTION OF DOCUMENTS AT CONTINUED DEPOSTION OF
PLAINTIFF FREAR STEPHEN SCHMID; AND FOR SANCTIONS [CCP § 2025.480]
1 3. ADDITIONAL TIME BEYOND SEVEN HOURS TO COMPLETE DEPOSITION
2
Plaintiff impeded and delayed the examination during the Court-ordered deposition. Section
3
2025.290(a) provides mandatory relief: “The court shall allow additional time, beyond any limits
4
imposed by this section, if needed to fairly examine the deponent or if the deposition, another
5
person, or any other circumstance impeded or delays the examination.” (See Certainteed Corp. v.
6
Sup.Ct. (2014) 222 Cal.App.4th 1053, 1060 (the seven-hour time limit for depositions is “merely
7
presumptive” and applied only if the Court does not order otherwise).)
8
Because of the need to review and examine Plaintiff about all the documents that Plaintiff
9
may claim support the allegations in this consolidated case, Two Rock Fire requests that the Court
10
grant Defendant Two Rock Fire and the County of Sonoma an additional seven hours to complete
11
the deposition of Plaintiff.
12
RENEWED REQUEST FOR ATTORNEY’S FEES AND SANCTIONS
13
When this Court previously granted Two Rock Fire Motion to Compel Plaintiff’s deposition
14
in October 2022, the Court reserved, without prejudice, Two Rock Fire’s request for mandatory
15
sanctions in the amount of $2,075.00, pursuant to sections 2025.450(g); 2023.010(d); and
16
2023.050(a).
17
In connection with this Motion to Compel for Plaintiff’s failure to comply with the Court-
18
ordered deposition, section 2025.480(j) provides for mandatory monetary sanctions against Plaintiff,
19
unless the Court finds that Plaintiff’s pattern of refusing to appear at his deposition has some
20
“substantial justification or that other circumstances make the imposition of the sanction unjust.”
21
There is no substantial justification or other circumstances to excuse the mandatory imposition of
22
sanction against Plaintiff in this situation.
23
Monetary sanctions are also available and appropriate for Plaintiff’s discovery misuse under
24
section 2023.010(d) for failing to submit to an authorized method of discovery in an effort to avoid
25
her deposition before trial. Two Rock Fire requests the Court order Plaintiff to pay Two Rock Fire
26
$4,750.00 for the attorney’s fees and costs, including court reporter fees, as follows: $2,250.00 for
27
ten hours of attorney time at $225.00 per hour, to prepare this Motion to Compel; prepare, reply and
28
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NOTICE OF MOTION AND DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S MOTION TO COMPEL
ANSWERS AND PRODUCTION OF DOCUMENTS AT CONTINUED DEPOSTION OF
PLAINTIFF FREAR STEPHEN SCHMID; AND FOR SANCTIONS [CCP § 2025.480]
1 appear at the hearing concerning this Motion; review documents to be produced by Plaintiff prior to
2 the deposition; and attend the next session of Plaintiff’s deposition; as well as the estimated
3 $2,500.00 for the Court Reporter fees for another day of deposition.
4 Additionally, section 2023.050 mandates a further $250.00 sum certain sanction, where, as
5 here, Plaintiff failed to produce documents identified in his deposition notice pursuant to section
6 2025.210, (see section 2023.050(a)(1), as well as a further $250.00 sum certain sanction if Plaintiff
7 fails to produce the documents requested pursuant to section 2025.210 within seven days before the
8 Court hears this Motion under section 2025.450 (see section 2023.050(a)(2).)
9 CONCLUSION
10 Without any substantial justification and based on specious invalid objections, Plaintiff
11 deliberately failed to answer questions and produce documents at his Court-ordered deposition.
12 Based on totality of the circumstances, the Court is respectfully requested to order Plaintiff to
13 produce documents called for in the deposition notice to Defendants at least one week before the
14 deposition date; attend a further seven hours of deposition for examination by Defendants; answer
15 questions presented at the deposition, and based on Plaintiff’s pattern of discovery abuse, pay Two
16 Rock Fire sanctions in the amount of $7, 325.00.
17 In the alternative, because this is a recurring example of discovery abuse by Plaintiff in this
18 case, Two Rock Fire requests the Court issue an Order precluding Plaintiff from testifying at the trial
19 or introducing any documentary exhibits.
20 A proposed Order is provided for the convenience of the Court.
21
22 DATED: February10, 2023 WILLIAM L. ADAMS, PC
23
By:
24 William L. Adams, Counsel for Defendant
TWO ROCK VOLUNTEER FIRE DEPARTMENT
25
26
27
28
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NOTICE OF MOTION AND DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S MOTION TO COMPEL
ANSWERS AND PRODUCTION OF DOCUMENTS AT CONTINUED DEPOSTION OF
PLAINTIFF FREAR STEPHEN SCHMID; AND FOR SANCTIONS [CCP § 2025.480]
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 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SONOMA 10 FREAR STEPHEN SCHMID AND Case No. SCV-266225 and consolidated actions ASTRID SCHMID, SCV-266731 and SCV-270339 11 Plaintiffs, NOTICE OF MOTION AND DEFENDANT 12 TWO ROCK VOLUNTEER FIRE v. DEPARTMENT’S MOTION TO COMPEL 13 ANSWERS AND PRODUCTION OF DOCUMENTS AT CONTINUED 14 TWO ROCK VOLUNTEER FIRE DEPOSTION OF PLAINTIFF FREAR DEPARTMENT, STEPHEN SCHMID; AND FOR SANCTIONS 15 [CCP § 2025.480] Defendant. 16 Hearing Date: Time: 17 Department: 19 18 AND CONSOLIDATED ACTIONS Trial Call: TBD 19 20 NOTICE IS HEREBY GIVEN TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 21 Pursuant to Code of Civil Procedure section 2025.480 1, at 3:00 pm, on ____________, 2022, 22 in Department 19 of the Sonoma County Superior Court, 3055 Cleveland Avenue, Santa Rosa, CA, 23 the Court will hear the motion of Defendant Two Rock Volunteer Fire Department, also know as 24 Two Rock Fire Department (“Two Rock Fire”) to compel Plaintiff FREAR STEPHEN SCHMID 25 (“Plaintiff”), to answer questions and produce documents at his deposition, because of Plaintiff’s 26 failure to answer questions and produce documents at his Court-ordered deposition on October 27, 27 28 1 All statutory references herein are to the Code of Civil Procedure unless otherwise indicated. -1- NOTICE OF MOTION AND DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S MOTION TO COMPEL ANSWERS AND PRODUCTION OF DOCUMENTS AT CONTINUED DEPOSTION OF PLAINTIFF FREAR STEPHEN SCHMID; AND FOR SANCTIONS [CCP § 2025.480] 1 2022. Additionally, because of Plaintiff’s bad faith failure to comply with Court’s order which 2 impeded and delayed the deposition, Two Rock Fire requests that seven-hour limitation on 3 Plaintiff’s limitation be waived pursuant to section 2025.290(a). 4 This Motion will be based on this Memorandum of Points and Authorities; the Separate 5 Statement pursuant to California Rule of Court 3.1345; the accompanying supporting declaration of 6 Two Rock Fire counsel William L. Adams and documentary exhibits attached thereto; on the 7 Court’s own records and files in this consolidated action pursuant to Evidence Code section 452(d); 8 and on such additional argument as may be presented at the hearing on this Motion. 9 Additionally, Two Rock Fire renews its request for an award of $2,075.00 in attorney’s fees 10 and costs as sanctions against Plaintiff (which was reserved without prejudice by the Court in 11 October 2022 when it granted Two Rock Fire’s first Motion to Compel); and requests additional 12 sanctions for this motion in the amount of $5,250.00, as mandated in section 2025.480(j); as well as 13 potential sum certain sanctions of a further $500.00, as mandated by section 2023.050(a). 14 PROCEDURAL CHRONOLOGY 15 The relevant chronology of Plaintiff’s refusal to attend his deposition and Plaintiff’s 16 subsequent failure to answer questions and produce documents at his Court-ordered deposition is 17 documented below. Since all the documents and pleadings are already in the Court’s file, the 18 multiple exhibits are not submitted again for the Motion to Compel. 19 After this Court issued its Order after Hearing on July 29, 2022, consolidating these actions, 20 Two Rock Fire issued a deposition notice with production of nine categories of documents pursuant 21 to sections 2025.210 and 2025.220 to Plaintiff on August 4, 2022, setting Plaintiff’s deposition for 22 9:00 am on August 26, 2022. A true and correct copy of the Two Rock Fire deposition notice to 23 Plaintiff is attached as Exhibit 1 to the supporting declaration of William L. Adams (hereinafter 24 “Adams Decl.”). 25 On August 26, 2022, at approximately 9:15 am, after there was no appearance by Plaintiff 26 and none of the documents called in the deposition notice were produced, Two Rock Fire counsel 27 went on the record to document Plaintiff’s nonappearance. This Statement of Nonappearance was 28 the basis for Two Rock Fire’s successful Motion to obtain a Court-order compelling Plaintiff’s -2- NOTICE OF MOTION AND DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S MOTION TO COMPEL ANSWERS AND PRODUCTION OF DOCUMENTS AT CONTINUED DEPOSTION OF PLAINTIFF FREAR STEPHEN SCHMID; AND FOR SANCTIONS [CCP § 2025.480] 1 deposition. 2 On September 2, 2022, after the transcript was received, Two Rock Fire filed its first Motion 3 to compel Plaintiff’s deposition. A true and correct five-page Motion (without the supporting 4 documentary exhibits) is attached as Exhibit 2 to Adams Decl. 5 On September 23, 2022, after the parties were informed that the Court had set the Motion for 6 hearing in February 2023, three months after the trial date, Two Rock Fire immediately moved to 7 advance the hearing date to October 14, 2022, so that Plaintiff’s deposition could be completed 8 before trial 9 On October 14, 2022, Judge Zuniga granted Two Rock Fire’s motion and ordered Plaintiff’s 10 deposition to occur on October 27, 2022, in a stipulated Order entered on October 20, 2022. A true 11 and correct copy of the Order entered 10/20/22 is attached as Exhibit 3 to Adams Decl. 12 On October 27, 2022, Plaintiff’s deposition was commenced (with Plaintiff representing 13 himself) – as set forth in accompanying Separate Statement – and then suspended after no 14 documents were produced, numerous unmeritorious objections, and Plaintiff’s repeated failure to 15 answer questions. A true and correct copy of Plaintiff’s deposition transcript (excluding the word 16 index and exhibits) with highlighted excerpts which are also cross-referenced in the Separate 17 Statement are attached Exhibit 4 to Adams Decl. 18 During Plaintiff’s deposition, reference was made to “thousands of documents” and “all the 19 documents” in relation to an October 26, 2022 email from Plaintiff to defense counsel that was 20 authenticated and marked as Exhibit 9 to Plaintiff Astrid Schmid’s deposition. A true and correct 21 copy of the 10/26/22 email identified as Exhibit 9 to Plaintiff’s deposition is attached as Exhibit 5 to 22 Adams Decl. 23 On November 1, 2022, Two Rock Fire filed its Motion in Limine #3 of 3, seeking to exclude 24 Plaintiff’s testimony or use of documents at trial. A true and correct the eight-page Motion in 25 Limine (without the supporting documentary exhibits) is attached as Exhibit 6 to Adams Decl 26 On November 14, 2022, Certified Shorthand Reporter Maximillian A. Contreras, CSR 27 #13876, sent the Reporters Certificate and draft October 27, 2022 deposition transcript to Plaintiff. 28 Plaintiff did not respond to the Review, Approval and Signature forms sent by the Court Reporter -3- NOTICE OF MOTION AND DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S MOTION TO COMPEL ANSWERS AND PRODUCTION OF DOCUMENTS AT CONTINUED DEPOSTION OF PLAINTIFF FREAR STEPHEN SCHMID; AND FOR SANCTIONS [CCP § 2025.480] 1 within the 30-day statutory period with any edits or changes; and the transcript and the record of 2 Plaintiff’s deposition is therefore complete effective December 13, 2022. See sections 2025.530(d); 3 2025.540. 4 On December 29, 2022, Two Rock Fire counsel sent a ten-page meet and confer letter, with 5 an additional copy of the Court Reporter’s Review, Approval and Signature letter, requesting that 6 Plaintiff provide the documents called for in the deposition notice and stipulate to a continued 7 deposition to complete Defendants’ examination of Plaintiff. Plaintiff did not respond. A true and 8 correct copy of the ten-page meet and confer letter sent to Plaintiff on December 29, 2022 is attached 9 as Exhibit 7 to Adams Decl. 10 LEGAL ARGUMENT 11 1. COMPLIANCE WITH MEET AND CONFER FOR THIS TIMELY MOTION 12 Pursuant to section 2025.480(b), a motion to compel for failure to answer or produce 13 documents at a deposition “shall be made no later than 60 days after completion of the record and 14 shall be accompanied by a meet and confer declaration under Section 2016.040.” Section 15 2025.480(b). 16 This motion is timely. As documented in Exhibit 7, the completion of the record of 17 Plaintiff’s deposition was December 14, 2022, and the last day to file the motion is February 11, 18 2022, sixty days later. Additionally, as authenticated in the supporting declaration of William L. 19 Adams, the meet and confer letter in Exhibit 7 satisfies the requirements of sections 2016.040 and 20 2025.480(b). 21 2. FAILURE TO ANSWER QUESTIONS AND PRODUCE DOCUMENTS 22 As shown in the deposition notice in Exhibit 1, pursuant to sections 2025.210 and 2025.220, 23 Two Rock Fire specifically requested nine categories of documents for Plaintiff to produce at the 24 deposition. The document demand specified in the deposition notice remained in effect when 25 Plaintiff’s Court-ordered deposition commenced on October 27, 2022. At his deposition, Plaintiff 26 failed to answer questions and refused to produce documents. Section 2025.460(e) provides: 27 “If a deponent failures to answer any questions or to produce any documents, 28 electronically stored information, or tangible thing under deponent’s control that is specified -4- NOTICE OF MOTION AND DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S MOTION TO COMPEL ANSWERS AND PRODUCTION OF DOCUMENTS AT CONTINUED DEPOSTION OF PLAINTIFF FREAR STEPHEN SCHMID; AND FOR SANCTIONS [CCP § 2025.480] in the deposition notice or a deposition subpoena, the party seeking that answer or 1 production may adjourn the deposition or complete the examination on other matters without 2 waiving the right at a later time to move for an order compelling that answer or production under Section 2025.480.” 3 Section 2025.460(e ) (emphasis added). 4 Counsel advised Plaintiff, and Plaintiff refused to acknowledges and comply, with the 5 statutory requirement that “[e]xamination and cross-examination of the deponent shall proceed as 6 permitted at trial under the provisions of the Evidence Code.” CCP section 2025.330(d).) As set 7 forth in the accompanying Separate Statement pursuant to California Rule of Court and documented 8 in the annotated Certified Transcript of Plaintiff’s deposition attached as Exhibit 4, the following are 9 a few illustrative examples of Plaintiff’s persistent and repeated refusal to testify as if at trial, failure 10 to answer questions and refusal to produce documents called for in the deposition notice. 11 With regard to Plaintiff’s claims of diminution of value of his property adjacent to the Two 12 Rock Fire project, Plaintiff repeatedly refused to provide either testimony or documentary evidence 13 to support their claims: 14 “Mr. Adams: All right. And what was the purchase price when you purchased the 15 property in July 1996? Mr. Schmid Mr. Schmid: I really don’t know, frankly. I object on the grounds it’s relevant or even 16 calculated relevant evidence. But I relayed don’t know it off the top of my head. Mr. Adams: Well, if you’re claiming some diminution in value of your property now 17 and in the last few years because of the red building project – – Mr. Schmid: Mm-hmm. 18 Mr. Adams: – – the reason I’m asking is to lead to relevant information, is to get a benchmark. Your property is probably worth something now and we need to start with what 19 it was like when you purchased it. That’s why it’s relevant, with that representation. Mr. Schmid: I disagree, but I hear what you said Paul – – I mean Bill. I was looking 20 at Paul when I said that.” 21 (Exhibit 4, Deposition Transcript, page 15, lines 6-23.) (emphasis added) 22 Mr. Adams: Okay. Exhibit 1 [the deposition notice to Plaintiff] has nine categories of documents, and were going to talk about the link that was sent yesterday in a little while. 23 But other than the link that was sent yesterday that I represent to you had 97 photographs, 24 29 screenshots, and one .MP4 file, have you provided any of the documents called for in this deposition subpoena? 25 Mr. Schmid: Yes, we provided all those documents. Mr. Adams: When were those documents provided, to your understanding? 26 Mr. Schmid: Over the last two-and-a-half years of this litigation. Mr. Adams: and you are referring to – – because were going to talk about it – – what 27 had been marked as Exhibit 9? Were going to include in your – – the email at 8:35 yesterday 28 morning that you and your wife sent to Mr. King and I? -5- NOTICE OF MOTION AND DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S MOTION TO COMPEL ANSWERS AND PRODUCTION OF DOCUMENTS AT CONTINUED DEPOSTION OF PLAINTIFF FREAR STEPHEN SCHMID; AND FOR SANCTIONS [CCP § 2025.480] Mr. Schmid: Me. 1 Mr. King: We went through that yesterday. You’ve got to say “me.” 2 [Brief off-the-record discussion] Mr. Schmid: Yes. This is an email that I along with my wife sent you yesterday 3 morning Mr. Adams: And those documents that you provided throughout this litigation is 4 referred to in the large second paragraph of Exhibit 9 to your wife’s deposition. Mr. Schmid: Correct.” 5 6 (Id., page 40, line 3 through page 41, line 6.) 7 Despite the statutory requirement in section 2025.330(d) that deposition examination and 8 testimony proceed as permitted at trial, Plaintiff refused to answer questions, interposing objections 9 while acting his own attorney, and persisted in narrative responses extending to 11, 12, and 30 10 minutes – at one point walking out of the deposition in midst of questioning. See Exhibit 4, 11 Deposition Transcript at page 133, line 19 through page 134, line 16; page 140, lines 7-17; page 143, 12 line 9 through page 144, line 12; page 148, lines 6-24.) Additionally, Plaintiff’s intemperate manner, 13 raising his voice, and failure to answer questions at one point required Managing Partner Ryan 14 Thomas of the Johnston Thomas law firm (where the deposition was taking place) to intervene to 15 find out why Plaintiff was shouting and disrupting the office. This was during a sequence of 16 questions concerning the written setback waiver Plaintiff himself drafted. (See Id., at page 111, line 17 11 through page 112, line 7.) 18 Notwithstanding the scope and intent of the Court Orders in July 2022 and the granting of 19 Two Rock Fire’s first Motion to Compel in October 2022, Plaintiff objected without merit that the 20 County was not authorized to participate in the deposition in this consolidated case: 21 “Mr. Adams: Okay. And discovery is open in the fraud case, which is why were here? 22 Mr. Schmid: For the fraud case; correct. And my position is that discovery is limited to the parties to this – – to the fraud case. 23 Mr. King: That’s not what the order says, but thank you. I understand your position. 24 Mr. Schmid: I’m going to object to – – Mr. Adams: we’re not there yet. 25 Mr. Schmid: I am just going to put on the record – – since this is the first time that 26 Mr. King has stated something on the record – – that plaintiffs dispute his right to partake actively in this discovery.” 27 28 (Exhibit 4, Deposition Transcript, page 42, line 18 through page 43, lines 5.) (emphasis added) -6- NOTICE OF MOTION AND DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S MOTION TO COMPEL ANSWERS AND PRODUCTION OF DOCUMENTS AT CONTINUED DEPOSTION OF PLAINTIFF FREAR STEPHEN SCHMID; AND FOR SANCTIONS [CCP § 2025.480] 1 “Mr. King: If Mr. Schmid’s going to answer a couple questions. I don’t know of is 2 going to answer or not. Are you going to answer? Mr. Schmid: I’ll make my same objections. I’m willing to answer questions. 3 [Off the record conversation] Mr. King: Go ahead. He wanted to make some comment about the general objections 4 still being in place as to the fact that this one fraud cause of action, County of Sonoma is not specifically named as a party. You want to make some objection about that? 5 Mr. Schmid: Yeah, just what we talked about yesterday. Basically I do not think it’s 6 proper for you to ask questions or be involved in the discovery in this matter. Were not waiving that. I’ll answer the questions without prejudice to that.” 7 (Id., page 162, line 16 through page 163, line 7.) 8 As Plaintiffs persistent refusal to testify as if at trial and failure to answer questions 9 continued throughout his Court-ordered deposition, Plaintiff was notified (and insisted several times) 10 during the deposition that both Defendants Two Rock Fire and the County would seek judicial 11 review and a motion to compel answers and production of documents. (See Parker v.Wolters Kluver 12 U.S., Inc. (2007) 149 Cal.App.4th 285, 295.): 13 Mr. Adams: “Okay. Thank you for clarifying that. As you know through the 14 deposition today, we have had a number of issues that may need to get the court or referee to deal with them. So I want to reserve some time, both as you had shared, for you to testify 15 some more; for us to get some issues clarified, if need be, with the court. What I’m going to 16 do then is and for right now my examination without adjourning the deposition.” 17 (Id., page 162, lines 4-12.) Mr. King: “That’s the questions that I have at the present time. I’m not waiving any 18 rights to ask further questions after. You are either going to answer or not answer those that Mr. Adams may have for you. Thank you very much for your attention for this period of 19 time.” 20 (Id. Page 187, lines 1-5.) 21 Plaintiff’s failure to answer questions and refusal to produce documents expressly called for 22 in the Two Rock Fire deposition notice are clearly specious and invalId. Where invalid objections 23 are propounded, a deponent is subject to the sanction regime set forth in section 2025.450 and 24 2025.480. (See Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702 (“The question before 25 us is not whether the trial should have imposed a lesser sanction; rather, the question is whether the 26 trial court abused its discretion by imposing the sanction it chose.” (quoting Liberty Mutual Fire Ins. 27 Co v. LcL Administrators, Inc. (2008) 163 Cal.App.,4th 1093, 1105).) 28 -7- NOTICE OF MOTION AND DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S MOTION TO COMPEL ANSWERS AND PRODUCTION OF DOCUMENTS AT CONTINUED DEPOSTION OF PLAINTIFF FREAR STEPHEN SCHMID; AND FOR SANCTIONS [CCP § 2025.480] 1 Unfortunately, this is not the first occasion in this case that Plaintiff has refused to attend his 2 deposition and failed to comply with a deposition notice. On October 8, 2021, Plaintiff’s deposition 3 with production of documents to take place on October 19, 2021, was duly noticed and the 4 deposition personally served at Plaintiff’s residence at7585 Valley Ford Road in Petaluma, CA . 5 Nevertheless, Plaintiff propounded invalid objection falsely stating that he had not been served and 6 refused to attend or produce documents called for in the deposition notice. Because the Trial Court 7 thereafter sua sponte vacated the trial set for November 19, 2021, no motion to compel Plaintiff’s 8 deposition under section 2025.450 was brought. However, the Court is respectfully requested to 9 consider Plaintiff’s documented pattern of refusing to comply with valid discovery and refusing to 10 provide his testimony on the eve of trial, in making its determinations concerning this Motion. 11 Plaintiff’s pattern and demonstrated practice of willful discovery violations is particularly 12 egregious since Plaintiff is represented and advised by her husband, co-Plaintiff Frear Stephen 13 Schmid, a licensed California attorney with more than 40 years of experience. “[W]here a violation 14 is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would 15 not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate 16 sanction.” (Creed -21, supra, 18 Cal.App.5th at 702 (quoting Doppes v. Bentley Motors, Inc. (2009) 17 174 Cal.App.4th 967, 992).) 18 Two Rock Fire requests an order compelling and expediting Plaintiffs deposition testimony, 19 subject to the full range sanctions to terminating sanction and findings of indirect contempt, if and 20 when Plaintiff fails to comply. (See Creed -21, supra, 18 Cal.App. 5th at fn. 11 (“disobedience of a 21 court order outside of the presence of the judge . . . is categorized as indirect contempt.” (citing 22 Kohler v. Superior Court (2010) 181 Cal.App.4th 1153, 1159).) 23 In the alternative, because Plaintiff has repeatedly refused to participate in discovery to 24 provide her testimony as required by the Discovery Act, rather than the “ultimate” terminating 25 sanction, Two Rock Fire requests this Court impose an evidentiary sanction precluding Plaintiff 26 from testifying at the trial. The rationale and good faith basis for issue or evidence sanctions is set 27 forth in detail in Two Rock Fire’s Motion in Limine #3 of 3, attached hereto as Exhibit 6. 28 -8- NOTICE OF MOTION AND DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S MOTION TO COMPEL ANSWERS AND PRODUCTION OF DOCUMENTS AT CONTINUED DEPOSTION OF PLAINTIFF FREAR STEPHEN SCHMID; AND FOR SANCTIONS [CCP § 2025.480] 1 3. ADDITIONAL TIME BEYOND SEVEN HOURS TO COMPLETE DEPOSITION 2 Plaintiff impeded and delayed the examination during the Court-ordered deposition. Section 3 2025.290(a) provides mandatory relief: “The court shall allow additional time, beyond any limits 4 imposed by this section, if needed to fairly examine the deponent or if the deposition, another 5 person, or any other circumstance impeded or delays the examination.” (See Certainteed Corp. v. 6 Sup.Ct. (2014) 222 Cal.App.4th 1053, 1060 (the seven-hour time limit for depositions is “merely 7 presumptive” and applied only if the Court does not order otherwise).) 8 Because of the need to review and examine Plaintiff about all the documents that Plaintiff 9 may claim support the allegations in this consolidated case, Two Rock Fire requests that the Court 10 grant Defendant Two Rock Fire and the County of Sonoma an additional seven hours to complete 11 the deposition of Plaintiff. 12 RENEWED REQUEST FOR ATTORNEY’S FEES AND SANCTIONS 13 When this Court previously granted Two Rock Fire Motion to Compel Plaintiff’s deposition 14 in October 2022, the Court reserved, without prejudice, Two Rock Fire’s request for mandatory 15 sanctions in the amount of $2,075.00, pursuant to sections 2025.450(g); 2023.010(d); and 16 2023.050(a). 17 In connection with this Motion to Compel for Plaintiff’s failure to comply with the Court- 18 ordered deposition, section 2025.480(j) provides for mandatory monetary sanctions against Plaintiff, 19 unless the Court finds that Plaintiff’s pattern of refusing to appear at his deposition has some 20 “substantial justification or that other circumstances make the imposition of the sanction unjust.” 21 There is no substantial justification or other circumstances to excuse the mandatory imposition of 22 sanction against Plaintiff in this situation. 23 Monetary sanctions are also available and appropriate for Plaintiff’s discovery misuse under 24 section 2023.010(d) for failing to submit to an authorized method of discovery in an effort to avoid 25 her deposition before trial. Two Rock Fire requests the Court order Plaintiff to pay Two Rock Fire 26 $4,750.00 for the attorney’s fees and costs, including court reporter fees, as follows: $2,250.00 for 27 ten hours of attorney time at $225.00 per hour, to prepare this Motion to Compel; prepare, reply and 28 -9- NOTICE OF MOTION AND DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S MOTION TO COMPEL ANSWERS AND PRODUCTION OF DOCUMENTS AT CONTINUED DEPOSTION OF PLAINTIFF FREAR STEPHEN SCHMID; AND FOR SANCTIONS [CCP § 2025.480] 1 appear at the hearing concerning this Motion; review documents to be produced by Plaintiff prior to 2 the deposition; and attend the next session of Plaintiff’s deposition; as well as the estimated 3 $2,500.00 for the Court Reporter fees for another day of deposition. 4 Additionally, section 2023.050 mandates a further $250.00 sum certain sanction, where, as 5 here, Plaintiff failed to produce documents identified in his deposition notice pursuant to section 6 2025.210, (see section 2023.050(a)(1), as well as a further $250.00 sum certain sanction if Plaintiff 7 fails to produce the documents requested pursuant to section 2025.210 within seven days before the 8 Court hears this Motion under section 2025.450 (see section 2023.050(a)(2).) 9 CONCLUSION 10 Without any substantial justification and based on specious invalid objections, Plaintiff 11 deliberately failed to answer questions and produce documents at his Court-ordered deposition. 12 Based on totality of the circumstances, the Court is respectfully requested to order Plaintiff to 13 produce documents called for in the deposition notice to Defendants at least one week before the 14 deposition date; attend a further seven hours of deposition for examination by Defendants; answer 15 questions presented at the deposition, and based on Plaintiff’s pattern of discovery abuse, pay Two 16 Rock Fire sanctions in the amount of $7, 325.00. 17 In the alternative, because this is a recurring example of discovery abuse by Plaintiff in this 18 case, Two Rock Fire requests the Court issue an Order precluding Plaintiff from testifying at the trial 19 or introducing any documentary exhibits. 20 A proposed Order is provided for the convenience of the Court. 21 22 DATED: February10, 2023 WILLIAM L. ADAMS, PC 23 By: 24 William L. Adams, Counsel for Defendant TWO ROCK VOLUNTEER FIRE DEPARTMENT 25 26 27 28 - 10 - NOTICE OF MOTION AND DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S MOTION TO COMPEL ANSWERS AND PRODUCTION OF DOCUMENTS AT CONTINUED DEPOSTION OF PLAINTIFF FREAR STEPHEN SCHMID; AND FOR SANCTIONS [CCP § 2025.480]