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1 Frear Stephen Schmid SBN 96089
7585 Valley Ford Road,
2 Petaluma , CA 95492
Telephone: (415) 788-5957
3 Email: frearsschmid@aol.com
4 Attorneys for plaintiffs
5
6
7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
COUNTY OF SONOMA
9
10
FREAR STEPHEN SCHMID AND Case No. SCV-266225 and consolidated
11 ASTRID SCHMID, actions SCV-266731 and SCV-270339
12 Plaintiffs,
PLAINTIFFS’ OPPOSITION TO MOTION
13 v. TO COMPEL FURTHER ANSWERS AND
PRODUCTION OF DOCUMENTS AT
14 DEPOSITIONS
TWO ROCK VOLUNTEER FIRE
15 DEPARTMENT, Hearing Date: May 10 ,2023
Time: 3:00
16 Defendant. Department: 19
Trial Call: July 14,2023
17
18
AND CONSOLIDATED ACTIONS.
19
20
21
Plaintiffs jointly oppose the respective motions to compel plaintiffs to answer questions and
22
produce documents, as well as the request for sanctions. First, this motion is barred by the
23
settlement of this case, and without waiving said ground, plaintiffs submit the following additional
24
25 reasons that the motions must be denied.
26 Per the notices of motions, defendant seeks to compel plaintiffs to answer questions and
27 produce documents at her deposition, because of Plaintiff’s failure to answer questions and
28
produce documents at her Court-ordered depositions in late October 2022. Plaintiffs did attend
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30 PLAINTIFFS’ OPPOSTION TO MOTION TO COMPEL
and answered questions which will be addressed in their responses to the Separate Statements
1
2 filed herewith. Indeed, the defendant did not even use up the allotted 7 hours of time. As to
3 Astrid Schmid, the deposition concluded at 4:01 pm. Adams decl. re A. Schmid . Ex.4 p.243:23
4 The deposition of Frear Stephen Schmid was concluded at 3:23PM Adams decl. re F.S. Schmid .
5
Ex.4 p.187:1.
6
7
THE MOTIONS MUST BE DENIED AS THE COURT HAS NO JURISDICTION TO
8
CONSIDER THEM AS THEY WERE NOT BROUGHT WITHIN 60 DAYS
9
10 These motions are untimely as being brought beyond the 60 days allowed to bring it , and thus the
11 Court has no jurisdiction to consider them , other than to summarily deny them . Sexton v.
12 Superior Court (1997) 58 Cal.App.4th 1403, 1408-1410 , Unzipped Apparel v. Bader, 156
13 Cal.App.4th 123, 136 (Cal. Ct. App. 2007). “Prejudice is not required; discovery deadlines are
14 mandatory and we have treated them as jurisdictional” Weinstein v. Blumberg(2018) 25
15 Cal.App.5th 316, 322 n.3. A motion to compel for failure to answer or produce documents at a
16 deposition “shall be made no later than 60 days after completion of the record. CCP §
17 2025.480(b)
18 Here, the record as to Astrid Schmid was completed on Nov. 11,2022, the date that the
19 reporter’s certification of the record was signed by the court reporter under penalty of perjury. See
20 Adams decl.re A. Schmid, Ex.4 p.224:1-25, Thus, the last day to file the motion was January 10,
21 2023, sixty days later. The motion was untimely filed a month late on Feb. 8 ,2023. Likewise, as
22 to plaintiff Frear Stephen Schmid, the record was completed on November 14,2022, the date that
23 the reporter’s certification of the record was signed by the court reporter under penalty of perjury.
See Adams decl. re F.S. Schmid . Ex.4 p.189:1-25. Thus, the last day to file the motion as to F.S.
24
Schmid was January 13, 2023, sixty days later. The motion was untimely filed a month late on
25
Feb. 10,2023.
26
THE RECORD IS COMPLETED UPON CERTIFICATION OF THE TRANSCRIPT
27
Without any authority or analysis and contrary to common sense, defendant in passing asserts that
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30 PLAINTIFFS’ OPPOSTION TO MOTION TO COMPEL
1 the date the certification of transcript by the court reporter is not the date of completion of the
2 record of the deposition. The statutes make clear that the signed certification constitutes the
3 completion of the record. Thus, for example, CCP § 2025.540, entitled “Certification of
4 deposition record: rough draft transcripts, Subdivision (a) thereof provides “The deposition
5 officer shall certify on the transcript of the deposition, or in a writing accompanying an audio or
6 video record of deposition testimony, as described in Section 2025.530, that the deponent was
7 duly sworn, and that the transcript or recording is a true record of the testimony given.”
(emphasis added). See also CCP § 2025.510 (g):” If the testimony at the deposition is recorded
8
both stenographically and by audio or video technology, the stenographic transcript shall be the
9
official record of that testimony for the purpose of the trial and any subsequent hearing or
10
appeal.” (emphasis added). This construction is consistent with custom and practice. For example,
11
during a deposition, it is common to “ go off record” for breaks etc. and “back on the record “
12
when resuming having the court report resuming reporting. Logically there is no need to consider
13
the record complete as suggested by defendant, unquestionably the motion can be noticed even
14
during the deposition CCP § 2025.480(b) but no later than 60 days after certification of the
15
transcript. Thus, if a party for some reason wants to await the 30 days allowed for a deponent’s
16
review, then a party desiring to make the motion would still have 30 more days in which to file
17
the motion. Noteworthy is the legislature has already gavin a longer time period to compel as to
18
other time limits, which is normally 45 days. See e.g. CCP §§ 2030.300 (c), 2031.310 (c) and
19
2032.290 (c). And these dates are mandatory and jurisdictional. Weinstein v. Blumberg, supra.
20
Thus, it would go against the clear public policy regarding time limits to move to compel
21
discovery to enlarge the statutory time. As stated in Professional Career Colleges v. Superior
22 Court (1989) 207 Cal.App.3d 490, 493-94: “This pattern of restrictions, sanctions, and the attempt
23 to force cooperation clearly evinces the legislative intent that discovery proceed not only
24 smoothly, but swiftly as well. Indeed, this goal has been expressly stated with reference to the civil
25 justice system as a whole in the Trial Court Delay Reduction Act of 1986,Government Code
26 section 68600 et seq.” It is rather absurd to think that the legislature wanted to give a party a
27 quarter of a year to bring a motion after certification of the deposition transcript given its intent
28 that discovery proceed swiftly. Id. at 493
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30 PLAINTIFFS’ OPPOSTION TO MOTION TO COMPEL
1 THE MOTIONS ARE BARRED AS BEING UNTIMELY BROUGHT AFTER THE
2 STIPULATED TO, COURT ORDERED AND STATUTORY DISCOVERY CUT-OFF
3 DATE OF OCTOBER 25,2022
4 Further, these motions are time barred because defendants stipulated in open court in front of
5 Judge Nadler as a quid pro quo for consolidating the subject fraud action SCV-270339 , that the
6 subject discovery limited to the fraud action would be timely completed before the trial then
7 scheduled for November 4, 2022. See Order after Hearing to Establish Cut-off Dates for
Discovery and to Consolidate, filed July 29,2022. See Adams decl. re F.S. Schmid . Ex.4
8
p.189:1-25,
9
And in this scenario, the time has long since elapsed for any compulsion. As you
10 know, there is pretrial cutoffs. We had a discussion in front of Judge Nadler when
this case was consolidated where it was clearly discussed with Judge Nadler that
11 the cutoff was going to be as the normal cutoffs for this case. And you on the
record said, "We will get the
12 discovery done by then." And that was less than four months -- I think end of July,
13 whatever. Whatever it is from four, five months before the trial date. And the
bottom line is you did not initiate any discovery in this matter until you were
14 running against the clock. And so therefore any obligation was never set in motion
for us to respond on anything and is the fault of your client and -- I don't want to
15 say you personally, but for whatever reasons you declined -- you did not timely
engage in discovery and did not timely move for compulsion of discovery and did
16
not -- to the extent it did move that, it limited itself to the breadth of the discovery
17 that it sought to compel.
18
Here, the discovery and all motions to compel had to be made and heard and concluded by
19
October, 25,2022 , 15 days before the trial Nov. 4, 2022 date. CCP 2024.020(a). Given this
20
stipulated to, ordered and statutory discovery cut-off deadline, defendant’s subject motions are
21
time barred.
22
23
THERE IS NO COURT ORDER THAT REQUIRED THAT PLAINTIFFS PRODUCE
24
ANY DOCUMENTS AT THEIR DEPOSITIONS
25
And even if assuming arguendo timely brought notwithstanding the forgoing, the motions as
26
to the documents is meritless , as there is no court order directing plaintiffs to produce any
27
documents at the plaintiffs’ depositions. In its previous motion, defendant never moved to
28
compel production of documents , it only moved to bar plaintiffs from testify at trial, or
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30 PLAINTIFFS’ OPPOSTION TO MOTION TO COMPEL
1 alternatively to compel plaintiffs’ “ deposition testimony.” See Adams decls re A.Schmid and
2 F.S. Schmid. Ex. 2,p.2:14-15: “TRVFD requests an order compelling and expediting Plaintiffs
3 deposition testimony,” Accordingly, the court order did not and could not have ordered any
4 document production as there was no such motion before the court.
5 IN ADDITION TO THE ABOVE REASONS THE MOTION TO PRODUCE
6 DOCUMENTS IS TIME BARRED AS IT HAD TO HAVE BEEN BROUGHT BY
7 NOVEMBER 1, 2022
The motions to compel production of the documents are untimely for yet another reason.
8
They were to be produced on plaintiff’s depositions on August 26, 2022. Adams decls. re A.
9
Schmid and F.S. Schmid. p.2:14-15. Plaintiffs timely objected to the deposition and the
10
document request. Defendant despite being informed that plaintiffs would not appear or produce
11
any objections based upon their objections, defendant nonetheless conducted an”empty chair “
12
deposition of each plaintiff . See MOPA re A.Schmid,p.2:25-3:1:
13 On August 26, 2022, at approximately 1:05 am, after there was no appearance by
14 Plaintiff and none of the documents called in the deposition notice were produced,
Two Rock Fire counsel went on the record to document Plaintiff’s nonappearance.
15 This Statement of Nonappearance was the basis for Two Rock Fire’s successful
Motion to obtain a Court-order compelling Plaintiff’s deposition.
16
See also MOPA re F.S.Schmid, p.2:25-3:1
17
Thus, by the defendant’s own judicial admission, plaintiffs had failed to produce the requested
18
documents at the two depositions conducted by defendant on August 26, 2022. The respective
19
record of each deposition was completed and received by defendant by Sept.2,2022. Adams decls.
20
re A. Schmid and F.S. Schmid. p.2:18. Accordingly, defendant had 60 days from that date to
21 move to compel the production of the documents that plaintiffs had objected to and had
22 accordingly not produced. The sixty days ran on November 1,2022, but defendant never brought a
23 motion to compel the documents. Thus, the Court has no jurisdiction to consider the motions to
24 compel production of the documents and they must be denied. Sexton v. Superior Court, supra.
25 ASSUMING ARGUENDO DOCUMENT HAD TO BE PRODUCED THE MOTIONS FAIL
26 TO ESTABLISH GOOD CAUSE FOR ANY PRODUCTION
27 Finally, as to the documents, the subject motions, beyond being untimely, fail to state in any
28 fashion the just cause necessary to compel production. Civ. Proc. § 2025.480(i) provides: “If the
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30 PLAINTIFFS’ OPPOSTION TO MOTION TO COMPEL
1 court determines that the answer or production sought is subject to discovery, it shall order that the
2 answer be given or the production be made on the resumption of the deposition”. Under California
3 law, in order for documents to be subject to discovery, the moving party must establish good cause
4 for the discovery. See Cal. Code Civ. Proc. § 2031.310 (b) 1)” The motion shall set forth specific
5 facts showing good cause justifying the discovery sought by the demand.” Here, no facts are set
6 forth to establish good cause. Indeed, the facts show to the contrary, there is no good cause, as the
7 moving papers concede, plaintiffs had provided defendant prior to the ordered deposition. See
Adams decl. re F.S. Schmid . Ex.4 p.189:1-25:
8
Q. Have you provided any documents other than the link at 8:30 yesterday
9 morning?
A. If your question is: Are there documents that have been provided to you --
10 Q. No.
A. -- that correspond to the document requests in whatever exhibit number that is?
11
Yes, those documents have been provided.
12 See also, Adams decls. re A. Schmid and F.S. Schmid. Ex. 5
13 AS DISCUSSED IN THE ACCOMPANYING PLAINTIFFS’RESPONSES TO THE
14 SEPARATE STATEMENT TO COMPEL ANSWERS AND PRODUCTION OF
15 DOCUMENTS NO CAUSE EXISTS TO COMPEL FURTHER ANSWERS
16 In addition to the reasons set forth above whereby these motions are time barred, there is no good
17 cause to compel any further answers as each plaintiff sets forth in their respective responses to
18 defendant’s Separate Statements.
19 UNDER NO CIRCUMSTANCE ARE DEFENDANT ENTITLED TO MORE THAN 7
20 HOURS FOR EACH DEPONENT
21 Obviously, given the above, the defendant is not entitled to any further deposing of plaintiffs,
22 but the motions fail to explain why more time in addition to the initial unused seven hours is
23 necessary. Defendant wasted considerable time in having plaintiffs read lengthy document into
the record (e.g. see Adams decl. F.S. Schmid Ex. 4, pp.73-77 having F. Schmid read the Court
24
order into the record).and asking purely rhetorical questions of little or no relevancy. Here,
25
defendant concluded each deposition with unused time. As to A. Schmid, The simple truth is
26
defendant had no further questions and concluded the deposition in bad faith to harass and
27
antagonize plaintiffs. The motions do not even give a hint of what questions could not have been
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30 PLAINTIFFS’ OPPOSTION TO MOTION TO COMPEL
1 timely pursued in the unused time, much less which line of question needs an addition seven
2 hours. The disingenuity of defendant’s position is demonstrated by the fact that it had originally
3 scheduled both depositions to take place on one day, August 26.2022. See each MOPA p2:21-22.
4 Here, A. Schmid had approximately 1.5 hours of unused time. See Adams decl. A. Schmid Ex. 4.
5 And Mr. Adams stated on the record. As to F Schmid. there was even more unused time was even
6 more, approximately 2 hours. See Adams decl. F.S. Schmid Ex. 4.
7
THE REQUESTS FOR SANCTIONS ARE WITHOUT MERIT FOR AS SET FORTH
8
ABOVE PLAINTIFFS HAVE VERY SUBSTANTIAL JUSTIFICATIONS TO OPPOSE
9
THE MOTIONS
10
As set forth above the motions are time barred and must be denied. Further, assuming
11
arguendo, they could be brought, the defendant has failed to establish any good cause for
12
compelling further answers or production of documents. It is very transparent that these motions
13
are simply brought to harass and burden plaintiffs. Thus, plaintiffs have very substantial
14
justifications under the law and facts to oppose the motion the motions must be denied including
15
the requests for sanctions.
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17
CONCLUSION
18
The motions are time barred and must be denied. Further, assuming arguendo, they could be
19
brought, the defendant fails to establish any good cause for compelling further answers of
20
production of documents. It is very transparent that these motions are simply brought to harass and
21
burden plaintiffs. Thus, the motions must be denied including the requests for sanctions.
22
23 Dated: April 27, 2023, Respectfully submitted
24
25
26 /s/Frear Stephen Schmid
Frear Stephen Schmid
27
attorney for plaintiffs
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30 PLAINTIFFS’ OPPOSTION TO MOTION TO COMPEL
Preview
1 Frear Stephen Schmid SBN 96089 7585 Valley Ford Road, 2 Petaluma , CA 95492 Telephone: (415) 788-5957 3 Email: frearsschmid@aol.com 4 Attorneys for plaintiffs 5 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 COUNTY OF SONOMA 9 10 FREAR STEPHEN SCHMID AND Case No. SCV-266225 and consolidated 11 ASTRID SCHMID, actions SCV-266731 and SCV-270339 12 Plaintiffs, PLAINTIFFS’ OPPOSITION TO MOTION 13 v. TO COMPEL FURTHER ANSWERS AND PRODUCTION OF DOCUMENTS AT 14 DEPOSITIONS TWO ROCK VOLUNTEER FIRE 15 DEPARTMENT, Hearing Date: May 10 ,2023 Time: 3:00 16 Defendant. Department: 19 Trial Call: July 14,2023 17 18 AND CONSOLIDATED ACTIONS. 19 20 21 Plaintiffs jointly oppose the respective motions to compel plaintiffs to answer questions and 22 produce documents, as well as the request for sanctions. First, this motion is barred by the 23 settlement of this case, and without waiving said ground, plaintiffs submit the following additional 24 25 reasons that the motions must be denied. 26 Per the notices of motions, defendant seeks to compel plaintiffs to answer questions and 27 produce documents at her deposition, because of Plaintiff’s failure to answer questions and 28 produce documents at her Court-ordered depositions in late October 2022. Plaintiffs did attend 29 1 30 PLAINTIFFS’ OPPOSTION TO MOTION TO COMPEL and answered questions which will be addressed in their responses to the Separate Statements 1 2 filed herewith. Indeed, the defendant did not even use up the allotted 7 hours of time. As to 3 Astrid Schmid, the deposition concluded at 4:01 pm. Adams decl. re A. Schmid . Ex.4 p.243:23 4 The deposition of Frear Stephen Schmid was concluded at 3:23PM Adams decl. re F.S. Schmid . 5 Ex.4 p.187:1. 6 7 THE MOTIONS MUST BE DENIED AS THE COURT HAS NO JURISDICTION TO 8 CONSIDER THEM AS THEY WERE NOT BROUGHT WITHIN 60 DAYS 9 10 These motions are untimely as being brought beyond the 60 days allowed to bring it , and thus the 11 Court has no jurisdiction to consider them , other than to summarily deny them . Sexton v. 12 Superior Court (1997) 58 Cal.App.4th 1403, 1408-1410 , Unzipped Apparel v. Bader, 156 13 Cal.App.4th 123, 136 (Cal. Ct. App. 2007). “Prejudice is not required; discovery deadlines are 14 mandatory and we have treated them as jurisdictional” Weinstein v. Blumberg(2018) 25 15 Cal.App.5th 316, 322 n.3. A motion to compel for failure to answer or produce documents at a 16 deposition “shall be made no later than 60 days after completion of the record. CCP § 17 2025.480(b) 18 Here, the record as to Astrid Schmid was completed on Nov. 11,2022, the date that the 19 reporter’s certification of the record was signed by the court reporter under penalty of perjury. See 20 Adams decl.re A. Schmid, Ex.4 p.224:1-25, Thus, the last day to file the motion was January 10, 21 2023, sixty days later. The motion was untimely filed a month late on Feb. 8 ,2023. Likewise, as 22 to plaintiff Frear Stephen Schmid, the record was completed on November 14,2022, the date that 23 the reporter’s certification of the record was signed by the court reporter under penalty of perjury. See Adams decl. re F.S. Schmid . Ex.4 p.189:1-25. Thus, the last day to file the motion as to F.S. 24 Schmid was January 13, 2023, sixty days later. The motion was untimely filed a month late on 25 Feb. 10,2023. 26 THE RECORD IS COMPLETED UPON CERTIFICATION OF THE TRANSCRIPT 27 Without any authority or analysis and contrary to common sense, defendant in passing asserts that 28 29 2 30 PLAINTIFFS’ OPPOSTION TO MOTION TO COMPEL 1 the date the certification of transcript by the court reporter is not the date of completion of the 2 record of the deposition. The statutes make clear that the signed certification constitutes the 3 completion of the record. Thus, for example, CCP § 2025.540, entitled “Certification of 4 deposition record: rough draft transcripts, Subdivision (a) thereof provides “The deposition 5 officer shall certify on the transcript of the deposition, or in a writing accompanying an audio or 6 video record of deposition testimony, as described in Section 2025.530, that the deponent was 7 duly sworn, and that the transcript or recording is a true record of the testimony given.” (emphasis added). See also CCP § 2025.510 (g):” If the testimony at the deposition is recorded 8 both stenographically and by audio or video technology, the stenographic transcript shall be the 9 official record of that testimony for the purpose of the trial and any subsequent hearing or 10 appeal.” (emphasis added). This construction is consistent with custom and practice. For example, 11 during a deposition, it is common to “ go off record” for breaks etc. and “back on the record “ 12 when resuming having the court report resuming reporting. Logically there is no need to consider 13 the record complete as suggested by defendant, unquestionably the motion can be noticed even 14 during the deposition CCP § 2025.480(b) but no later than 60 days after certification of the 15 transcript. Thus, if a party for some reason wants to await the 30 days allowed for a deponent’s 16 review, then a party desiring to make the motion would still have 30 more days in which to file 17 the motion. Noteworthy is the legislature has already gavin a longer time period to compel as to 18 other time limits, which is normally 45 days. See e.g. CCP §§ 2030.300 (c), 2031.310 (c) and 19 2032.290 (c). And these dates are mandatory and jurisdictional. Weinstein v. Blumberg, supra. 20 Thus, it would go against the clear public policy regarding time limits to move to compel 21 discovery to enlarge the statutory time. As stated in Professional Career Colleges v. Superior 22 Court (1989) 207 Cal.App.3d 490, 493-94: “This pattern of restrictions, sanctions, and the attempt 23 to force cooperation clearly evinces the legislative intent that discovery proceed not only 24 smoothly, but swiftly as well. Indeed, this goal has been expressly stated with reference to the civil 25 justice system as a whole in the Trial Court Delay Reduction Act of 1986,Government Code 26 section 68600 et seq.” It is rather absurd to think that the legislature wanted to give a party a 27 quarter of a year to bring a motion after certification of the deposition transcript given its intent 28 that discovery proceed swiftly. Id. at 493 29 3 30 PLAINTIFFS’ OPPOSTION TO MOTION TO COMPEL 1 THE MOTIONS ARE BARRED AS BEING UNTIMELY BROUGHT AFTER THE 2 STIPULATED TO, COURT ORDERED AND STATUTORY DISCOVERY CUT-OFF 3 DATE OF OCTOBER 25,2022 4 Further, these motions are time barred because defendants stipulated in open court in front of 5 Judge Nadler as a quid pro quo for consolidating the subject fraud action SCV-270339 , that the 6 subject discovery limited to the fraud action would be timely completed before the trial then 7 scheduled for November 4, 2022. See Order after Hearing to Establish Cut-off Dates for Discovery and to Consolidate, filed July 29,2022. See Adams decl. re F.S. Schmid . Ex.4 8 p.189:1-25, 9 And in this scenario, the time has long since elapsed for any compulsion. As you 10 know, there is pretrial cutoffs. We had a discussion in front of Judge Nadler when this case was consolidated where it was clearly discussed with Judge Nadler that 11 the cutoff was going to be as the normal cutoffs for this case. And you on the record said, "We will get the 12 discovery done by then." And that was less than four months -- I think end of July, 13 whatever. Whatever it is from four, five months before the trial date. And the bottom line is you did not initiate any discovery in this matter until you were 14 running against the clock. And so therefore any obligation was never set in motion for us to respond on anything and is the fault of your client and -- I don't want to 15 say you personally, but for whatever reasons you declined -- you did not timely engage in discovery and did not timely move for compulsion of discovery and did 16 not -- to the extent it did move that, it limited itself to the breadth of the discovery 17 that it sought to compel. 18 Here, the discovery and all motions to compel had to be made and heard and concluded by 19 October, 25,2022 , 15 days before the trial Nov. 4, 2022 date. CCP 2024.020(a). Given this 20 stipulated to, ordered and statutory discovery cut-off deadline, defendant’s subject motions are 21 time barred. 22 23 THERE IS NO COURT ORDER THAT REQUIRED THAT PLAINTIFFS PRODUCE 24 ANY DOCUMENTS AT THEIR DEPOSITIONS 25 And even if assuming arguendo timely brought notwithstanding the forgoing, the motions as 26 to the documents is meritless , as there is no court order directing plaintiffs to produce any 27 documents at the plaintiffs’ depositions. In its previous motion, defendant never moved to 28 compel production of documents , it only moved to bar plaintiffs from testify at trial, or 29 4 30 PLAINTIFFS’ OPPOSTION TO MOTION TO COMPEL 1 alternatively to compel plaintiffs’ “ deposition testimony.” See Adams decls re A.Schmid and 2 F.S. Schmid. Ex. 2,p.2:14-15: “TRVFD requests an order compelling and expediting Plaintiffs 3 deposition testimony,” Accordingly, the court order did not and could not have ordered any 4 document production as there was no such motion before the court. 5 IN ADDITION TO THE ABOVE REASONS THE MOTION TO PRODUCE 6 DOCUMENTS IS TIME BARRED AS IT HAD TO HAVE BEEN BROUGHT BY 7 NOVEMBER 1, 2022 The motions to compel production of the documents are untimely for yet another reason. 8 They were to be produced on plaintiff’s depositions on August 26, 2022. Adams decls. re A. 9 Schmid and F.S. Schmid. p.2:14-15. Plaintiffs timely objected to the deposition and the 10 document request. Defendant despite being informed that plaintiffs would not appear or produce 11 any objections based upon their objections, defendant nonetheless conducted an”empty chair “ 12 deposition of each plaintiff . See MOPA re A.Schmid,p.2:25-3:1: 13 On August 26, 2022, at approximately 1:05 am, after there was no appearance by 14 Plaintiff and none of the documents called in the deposition notice were produced, Two Rock Fire counsel went on the record to document Plaintiff’s nonappearance. 15 This Statement of Nonappearance was the basis for Two Rock Fire’s successful Motion to obtain a Court-order compelling Plaintiff’s deposition. 16 See also MOPA re F.S.Schmid, p.2:25-3:1 17 Thus, by the defendant’s own judicial admission, plaintiffs had failed to produce the requested 18 documents at the two depositions conducted by defendant on August 26, 2022. The respective 19 record of each deposition was completed and received by defendant by Sept.2,2022. Adams decls. 20 re A. Schmid and F.S. Schmid. p.2:18. Accordingly, defendant had 60 days from that date to 21 move to compel the production of the documents that plaintiffs had objected to and had 22 accordingly not produced. The sixty days ran on November 1,2022, but defendant never brought a 23 motion to compel the documents. Thus, the Court has no jurisdiction to consider the motions to 24 compel production of the documents and they must be denied. Sexton v. Superior Court, supra. 25 ASSUMING ARGUENDO DOCUMENT HAD TO BE PRODUCED THE MOTIONS FAIL 26 TO ESTABLISH GOOD CAUSE FOR ANY PRODUCTION 27 Finally, as to the documents, the subject motions, beyond being untimely, fail to state in any 28 fashion the just cause necessary to compel production. Civ. Proc. § 2025.480(i) provides: “If the 29 5 30 PLAINTIFFS’ OPPOSTION TO MOTION TO COMPEL 1 court determines that the answer or production sought is subject to discovery, it shall order that the 2 answer be given or the production be made on the resumption of the deposition”. Under California 3 law, in order for documents to be subject to discovery, the moving party must establish good cause 4 for the discovery. See Cal. Code Civ. Proc. § 2031.310 (b) 1)” The motion shall set forth specific 5 facts showing good cause justifying the discovery sought by the demand.” Here, no facts are set 6 forth to establish good cause. Indeed, the facts show to the contrary, there is no good cause, as the 7 moving papers concede, plaintiffs had provided defendant prior to the ordered deposition. See Adams decl. re F.S. Schmid . Ex.4 p.189:1-25: 8 Q. Have you provided any documents other than the link at 8:30 yesterday 9 morning? A. If your question is: Are there documents that have been provided to you -- 10 Q. No. A. -- that correspond to the document requests in whatever exhibit number that is? 11 Yes, those documents have been provided. 12 See also, Adams decls. re A. Schmid and F.S. Schmid. Ex. 5 13 AS DISCUSSED IN THE ACCOMPANYING PLAINTIFFS’RESPONSES TO THE 14 SEPARATE STATEMENT TO COMPEL ANSWERS AND PRODUCTION OF 15 DOCUMENTS NO CAUSE EXISTS TO COMPEL FURTHER ANSWERS 16 In addition to the reasons set forth above whereby these motions are time barred, there is no good 17 cause to compel any further answers as each plaintiff sets forth in their respective responses to 18 defendant’s Separate Statements. 19 UNDER NO CIRCUMSTANCE ARE DEFENDANT ENTITLED TO MORE THAN 7 20 HOURS FOR EACH DEPONENT 21 Obviously, given the above, the defendant is not entitled to any further deposing of plaintiffs, 22 but the motions fail to explain why more time in addition to the initial unused seven hours is 23 necessary. Defendant wasted considerable time in having plaintiffs read lengthy document into the record (e.g. see Adams decl. F.S. Schmid Ex. 4, pp.73-77 having F. Schmid read the Court 24 order into the record).and asking purely rhetorical questions of little or no relevancy. Here, 25 defendant concluded each deposition with unused time. As to A. Schmid, The simple truth is 26 defendant had no further questions and concluded the deposition in bad faith to harass and 27 antagonize plaintiffs. The motions do not even give a hint of what questions could not have been 28 29 6 30 PLAINTIFFS’ OPPOSTION TO MOTION TO COMPEL 1 timely pursued in the unused time, much less which line of question needs an addition seven 2 hours. The disingenuity of defendant’s position is demonstrated by the fact that it had originally 3 scheduled both depositions to take place on one day, August 26.2022. See each MOPA p2:21-22. 4 Here, A. Schmid had approximately 1.5 hours of unused time. See Adams decl. A. Schmid Ex. 4. 5 And Mr. Adams stated on the record. As to F Schmid. there was even more unused time was even 6 more, approximately 2 hours. See Adams decl. F.S. Schmid Ex. 4. 7 THE REQUESTS FOR SANCTIONS ARE WITHOUT MERIT FOR AS SET FORTH 8 ABOVE PLAINTIFFS HAVE VERY SUBSTANTIAL JUSTIFICATIONS TO OPPOSE 9 THE MOTIONS 10 As set forth above the motions are time barred and must be denied. Further, assuming 11 arguendo, they could be brought, the defendant has failed to establish any good cause for 12 compelling further answers or production of documents. It is very transparent that these motions 13 are simply brought to harass and burden plaintiffs. Thus, plaintiffs have very substantial 14 justifications under the law and facts to oppose the motion the motions must be denied including 15 the requests for sanctions. 16 17 CONCLUSION 18 The motions are time barred and must be denied. Further, assuming arguendo, they could be 19 brought, the defendant fails to establish any good cause for compelling further answers of 20 production of documents. It is very transparent that these motions are simply brought to harass and 21 burden plaintiffs. Thus, the motions must be denied including the requests for sanctions. 22 23 Dated: April 27, 2023, Respectfully submitted 24 25 26 /s/Frear Stephen Schmid Frear Stephen Schmid 27 attorney for plaintiffs 28 29 7 30 PLAINTIFFS’ OPPOSTION TO MOTION TO COMPEL