Preview
1 LEWIS BRISBOIS BISGAARD & SMITH LLP
MATT D. ZUMSTEIN (SBN 201306)
2 E-Mail: Matthew.Zumstein@lewisbrisbois.com
CHANDRANI MANDAL (SBN 321149)
3 E-Mail: Chandrani.Mandal@lewisbrisbois.com
2185 North California Boulevard, Suite 300
4 Walnut Creek, California 94596
Telephone: 925.357.3456
5 Facsimile: 925.478.3260
6 Attorneys for Defendants and Cross-
Complainants GINO’S RESTAURANT, INC.
7 and NGOCHAO THI NGUYEN
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF MONTEREY
10
11 LOUIS MONTANO, JR.; LOUIE Case No. 21CV003635
MONTANO III; and MICHAEL MONTANO,
12 DEFENDANTS / CROSS-
Plaintiffs, COMPLAINANTS GINO’S
13 RESTAURANT, INC.’S AND NGOCHAO
vs. THI NGUYEN’S REPLY IN SUPPORT OF
14 THEIR MOTION TO COMPEL
CITY OF SALINAS; GINO’S DEPOSITION RESPONSES
15 RESTAURANT, INC.; GINO’S FINE
ITALIAN FOOD, INC.; BLFA PROPERTIES Date: May 19, 2023
16 LLC; NTN PROPERTIES LLC; NGOCHAO Time: 8:30 a.m.
THI NGUYEN; RALPH BOZZO; ROSAURA Dept: 14
17 ARCOS PANIAGUA; AUSTIN ALARCON;
and DOES 1-35,
18 Action Filed: November 16, 2021
Defendants. Trial Date: None Set
19
20 AND RELATED CROSS-ACTIONS
21
22
Defendants / Cross-Complainants GINO’S RESTAURANT, INC. and NGOCHAO THI
23
NGUYEN (“Defendants”) respectfully submit the following Reply Brief in response to Plaintiff’s
24
opposition to their Motion to Compel Deposition Responses.
25
///
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///
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///
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LEWIS
BRISBOIS 1
BISGAARD
& SMITH LLP DEFENDANTS / CROSS-COMPLAINANTS GINO’S RESTAURANT, INC.’S AND NGOCHAO THI NGUYEN’S
ATTORNEYS AT LAW REPLY IN SUPPORT OF THEIR MOTION TO COMPEL DEPOSITION RESPONSES
1 I. ARGUMENT
2 A Plaintiffs’ Counsel Again Fails to Accurately Address the Law
3
1. Counsel’s Reliance on Roberts is misplaced.
4
Counsel failed to include in their Opposition that portion of a case that accurately
5
addresses their very argument. In Britt v. Superior Court (1978) 20 Cal.3d 844, it states a patient
6
“is not obligated to sacrifice all privacy to seek redress for a specific mental or emotional injury;
7
the scope of the inquiry permitted depends upon the nature of the injuries which the patient-
8
litigant himself has brought before the court.” (italics in original) (In re Lifschutz (1970) 2 Cal.3d
9
415, 435.)
10
In Roberts v. Superior Court (1973) 9 Cal.3d 330, 337-339, the court explicitly reaffirmed
11
Lifschutz's narrow interpretation of the scope of the patient-litigant exception. (In re Lifschutz at
12
p. 432, disclosure can be compelled with respect to those mental conditions the patient-litigant has
13
disclosed due to “the historically important state interest of facilitating the ascertainment of truth
14
in connection with legal proceedings.”) “This legitimate interest is just the beginning point of
15
analysis . . ., not, as [plaintiff] suggests, the conclusion.” (White v. Davis (1975) 13 Cal.3d 757,
16
766.)
17
At the deposition, Counsel relied heavily on Roberts v. Superior Court (1973) 9 Cal.3d 330
18
to support the position that the questions posed were not, in the mind of Counsel, relevant.
19
However, Roberts was decided in 1973, and the case of Stewart v. Colonial Western Agency
20
(2001) 87 Cal. App.4th 1006, decided 18 years later, provides that “For discovery purposes,
21
information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for
22
trial, or facilitating settlement . . . .’ [Citation.] Admissibility is not the test and information, unless
23
privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation.] These
24
rules are applied liberally in favor of discovery [citation], and (contrary to popular belief), fishing
25
expeditions are permissible in some cases.” (Gonzalez v. Superior Court (1995) 33 Cal. App. 4th
26
1539, 1546, quoting Weil & Brown, Cal. Practice Guide, Civil Procedure Before Trial (The Rutter
27
Group 1994) P 8:66.1, p. 8C-1.) (italics in original) Counsel fails to even address the Stewart case
28
LEWIS
BRISBOIS 2
BISGAARD
& SMITH LLP DEFENDANTS / CROSS-COMPLAINANTS GINO’S RESTAURANT, INC.’S AND NGOCHAO THI NGUYEN’S
ATTORNEYS AT LAW REPLY IN SUPPORT OF THEIR MOTION TO COMPEL DEPOSITION RESPONSES
1 in its Opposition. Stewart dealt with a counsel who improperly instructed a witness not to answer
2 questions that were deemed relevant. Witnesses are expected to endure an occasional irrelevant
3 question without disrupting the deposition process. (Stewart at p. 1015.)
4 2. There is No Brightline Rule For “Garden Variety” Emotional Distress
5 “Garden variety” emotional injuries are argued to be those that an ordinary person would
6 experience in a similar situation arising from a similar incident (i.e., watching your family
7 members in pain after a car crashes through a restaurant, and while being injured, observes his
8 family members suffering from the injuries imposed by the accident.) Emotional injuries like this
9 include physical pain, mental suffering, loss of enjoyment of life, disfigurement, grief, anxiety,
10 and humiliation. (See CACI – 3905A.) No fixed standard exists for deciding the amount of these
11 noneconomic damages; thus, the jury is required to use their best judgment to decide a reasonable
12 amount of “garden variety” emotional injuries based on the evidence while using common sense.
13 (Id.) The discretion of the jury determines the amount of recovery, the only standard being such
14 an amount as a reasonable person would estimate as fair compensation. (Duarte v. Zachariah
15 (1994) 22Cal.App.4th 1652, 1664-1665.)
16 The testimony of a single person, including the plaintiff, may be sufficient to support an
17 award of emotional distress damages. (Knutson v. Foster (2018) 25 Cal.App.5th 1075, 1096.)
18 (italics in original) Thus, the credibility of that witness is paramount in convincing the jury as to
19 what the plaintiff, Michael, believes are his “garden variety” emotional distress claims. And, as
20 the only witness on that issue, his credibility comes into question, which means any inconsistent
21 evidence he has provided needs to be evaluated in order to impeach the credibility of the evidence,
22 as needed.
23 Furthermore, Michael is the only person who can testify as to his “mental suffering, loss of
24 enjoyment of life, disfigurement, grief, anxiety, and humiliation.” Thus, the questions posed in
25 the deposition are relevant to examine Michael so Defendants can evaluate this case for trial, and,
26 prepare its defenses. No matter how strenuously Counsel wants to opine on how Defendants
27 chooses to prepare its case, Counsel is not defending this case. Defendants’ counsel is charged
28 with that task. And by not asking the necessary questions at deposition in order to lay the
LEWIS
BRISBOIS 3
BISGAARD
& SMITH LLP DEFENDANTS / CROSS-COMPLAINANTS GINO’S RESTAURANT, INC.’S AND NGOCHAO THI NGUYEN’S
ATTORNEYS AT LAW REPLY IN SUPPORT OF THEIR MOTION TO COMPEL DEPOSITION RESPONSES
1 foundation for any evidence that is to be admitted at trial, Defendants’ counsel would be derelict
2 in the duty to provide a vigorous defense.
3 Counsel claims the evidence is clear in Michael’s discovery response where he states, “Tri
4 State prescribed pills escitalopram for anxiety and sleeping problems as result of the incident” as it
5 “was a typo made at the time the supplemental responses of Miachel (sic) Montano and Louie
6 Montano III were drafted.” (Opposition pg. 5, line 24.)
7 What is actually clear is that Counsel continues to make typos in the pleadings and
8 discovery responses submitted on Plaintiffs’ behalf in this matter. What’s not clear is what
9 Michael did or didn’t mean to submit in his responses at the time they were served. What needs to
10 be clarified is to examine Michael on what exactly he meant when the discovery responses were
11 served, and that is the fact that Counsel fails to grasp. The foundation for those documents needs
12 to be laid for trial. Asking the witness to lay the foundation for the document is required for
13 Defendants to defend this matter and introduce the discovery response(s) into evidence, if
14 necessary. Michael is the only one who can lay that foundation. If he doesn’t appear at trial, the
15 opportunity to lay that foundation has ceased to exist. Counsel is not a witness and cannot be
16 compelled to testify as to what Michael intended to identify when the responses were originally
17 served.
18 Furthermore, Counsel offered to stipulate to Michael’s claims at deposition, yet, instead of
19 producing the stipulation, “spent approximately (10) hours researching, writing, and preparing
20 [their] Opposition. [Expects] to spend another one (1) hour reviewing Defendants’ Reply. [And]
21 will spend another one (1) hour attending the hearing on the motion, for a total of approximately
22 twelve (12) hours of attorney time spent on this motion,.” (sic) (Sergio Declaration page 2,
23 paragraph 9.) This time was spent addressing an alleged “boilerplate” motion that was neither
24 “unique or complex.” (Opposition pg. 14, lines 1-2.) Instead of wasting this Court’s time, had
25 Counsel simply provided the stipulation they agreed to provide, this issue would be resolved.
26 Perhaps spending a little extra time proofreading their work product would’ve alleviated the need
27 for this motion in the first place.
28
LEWIS
BRISBOIS 4
BISGAARD
& SMITH LLP DEFENDANTS / CROSS-COMPLAINANTS GINO’S RESTAURANT, INC.’S AND NGOCHAO THI NGUYEN’S
ATTORNEYS AT LAW REPLY IN SUPPORT OF THEIR MOTION TO COMPEL DEPOSITION RESPONSES
1 II. CONCLUSION
2 Defendants request the Court order that Michael’s deposition be completed, with a time
3 limit set of one-hour to complete the questions that could’ve been done had the deposition not
4 been so rudely interrupted. And, that Plaintiffs’ counsel pay for the one-hour deposition, as well
5 as any other costs and fees the Court seems fit to impose.
6
7 DATED: May 11, 2023 LEWIS BRISBOIS BISGAARD & SMITH LLP
8
9
By:
10 MATTHEW ZUMSTEIN
CHANDRANI MANDAL
11
Attorneys for Defendants and Cross-Complainants
12 GINO’S RESTAURANT, INC. and NGOCHAO
THI NGUYEN
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LEWIS
BRISBOIS 5
BISGAARD
& SMITH LLP DEFENDANTS / CROSS-COMPLAINANTS GINO’S RESTAURANT, INC.’S AND NGOCHAO THI NGUYEN’S
ATTORNEYS AT LAW REPLY IN SUPPORT OF THEIR MOTION TO COMPEL DEPOSITION RESPONSES
1 CALIFORNIA STATE COURT PROOF OF SERVICE
Louis Montano, Jr., et al. v. City of Salinas, et al.
2 Monterey County Superior Court Case No. 21CV003635
3 STATE OF CALIFORNIA, COUNTY OF CONTRA COSTA
4 At the time of service, I was over 18 years of age and not a party to this action. My
business address is 2185 North California Boulevard, Suite 300, Walnut Creek, CA 94596.
5
On May 12, 2023, I served true copies of the following document(s):
6
DEFENDANTS / CROSS-COMPLAINANTS GINO’S RESTAURANT, INC.’S AND
7 NGOCHAO THI NGUYEN’S REPLY IN SUPPORT OF THEIR MOTION TO COMPEL
DEPOSITION RESPONSES
8
I served the documents on the following persons at the following addresses (including fax
9 numbers and e-mail addresses, if applicable):
10 SEE ATTACHED SERVICE LIST
11 The documents were served by the following means:
12 (BY E-MAIL OR ELECTRONIC TRANSMISSION) Based on a court order or an
agreement of the parties to accept service by e-mail or electronic transmission, I caused the
13 documents to be sent from e-mail address Dusty.James@lewisbrisbois.com to the persons
at the e-mail addresses listed above. I did not receive, within a reasonable time after the
14 transmission, any electronic message or other indication that the transmission was
unsuccessful.
15
(BY ELECTRONIC TRANSMISSION ONLY) Only by e-mailing the document(s) to the
16 persons at the e-mail address(es) listed above based on notice provided on March 16, 2020
that, during the Coronavirus (COVID-19) pandemic, this office will be working remotely,
17 not able to send physical mail as usual, and is therefore using only electronic mail. No
electronic message or other indication that the transmission was unsuccessful was received
18 within a reasonable time after the transmission.
19 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
20
Executed on May 12, 2023, at Walnut Creek, California.
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Dusty James
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1 SERVICE LIST
Louis Montano, Jr., et al. v. City of Salinas, et al.
2 Monterey County Superior Court Case No. 21CV003635
3 Emily Ruby. Esq. Attorneys for Plaintiffs
Sergio Cardenas, Esq. LOUIS MONTANO, JR., LOUIE MONTANO
4 GREENBERG AND RUBY III, AND MICHAEL MONTANO
6100 Wilshire Boulevard, Suite 1170
5 Los Angeles, CA 90048 Tel: 323.782.0535
Fax: 323.782.0543
6 Email: eruby@caltrialpros.com
Scardenas@caltrialpros.com.
7 KDobroth@caltrialpros.com
8 Richard C. Alpers Attorneys for Plaintiffs
ALBERS LAW GROUP, INC. LOUIS MONTANO, JR., LOUIE MONTANO
9 PO Box 1540 III, AND MICHAEL MONTANO
Aptos, CA 95001
10 Tel: 855.808.1174
Fax: 855.870.1129
11 Email: rca@alperslawgroup.com
clerk@alperslawgroup.com
12
Joseph J. Babich Attorneys for Plaintiff MARIA ARELLANO
13 Sean D. Wiseman
Dreyer Babich Buccola Wood Campora, LLP
14 20 Bicentennial Circle P: (916) 379-3500 • F: (916) 379-3599
Sacramento, CA 95826 Emails: DBBWC-ESERVICE@dbbwc.com;
15 jbabich@dbbwc.com; tstevens@dbbwc.com
16 Christopher A. Callihan, Esq. Attorneys for Defendant
CITY OF SALINAS, OFFICE OF THE CITY CITY OF SALINAS
17 ATTORNEY
200 Lincoln Avenue Tel: (831) 758-7073 (direct)
18 Salinas, CA 93901-2639 Fax: (831) 758-7257
Email: chrisc@ci.salinas.ca.us
19
William R. Price, Esq. Co Counsel for Defendant
20 Lisa Shaw, Paralegal CITY OF SALINAS
LAW OFFICES OF WILLIAM R. PRICE
21 12636 High Bluff Dr., Suite 400 Tel: (858) 888-0588
San Diego, CA 92130 Emails: wprice@williamrprice.com;
22 lshaw@williamrprice.com
23 James J. Cook, Esq. Attorneys for Defendants
HORAN | LLOYD, APC. RALPH BOZZO; BLFA PROPERTIES, LLC;
24 26385 Carmel Rancho Blvd., Suite 200 AND GINO'S FINE ITALIAN FOOD, INC.
Carmel, CA 93923
25 Tel: (831) 373-4131
Fax: (831) 373-8302
26 Email: jcook@horanlegal.com
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1 Rodney N. Mayr, Esq. Attorneys for Defendants
MAYR LAW FIRM AUSTIN ALARCON AND ROSAURA
2 1010 W. Taylor St. ARCOS PANIAGUA
San Jose, CA 95126
3 Tel: (408) 331-7606
Fax: (669) 266-5612
4 Email: rodney@mayrlawfirm.com
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Preview
1 LEWIS BRISBOIS BISGAARD & SMITH LLP MATT D. ZUMSTEIN (SBN 201306) 2 E-Mail: Matthew.Zumstein@lewisbrisbois.com CHANDRANI MANDAL (SBN 321149) 3 E-Mail: Chandrani.Mandal@lewisbrisbois.com 2185 North California Boulevard, Suite 300 4 Walnut Creek, California 94596 Telephone: 925.357.3456 5 Facsimile: 925.478.3260 6 Attorneys for Defendants and Cross- Complainants GINO’S RESTAURANT, INC. 7 and NGOCHAO THI NGUYEN 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF MONTEREY 10 11 LOUIS MONTANO, JR.; LOUIE Case No. 21CV003635 MONTANO III; and MICHAEL MONTANO, 12 DEFENDANTS / CROSS- Plaintiffs, COMPLAINANTS GINO’S 13 RESTAURANT, INC.’S AND NGOCHAO vs. THI NGUYEN’S REPLY IN SUPPORT OF 14 THEIR MOTION TO COMPEL CITY OF SALINAS; GINO’S DEPOSITION RESPONSES 15 RESTAURANT, INC.; GINO’S FINE ITALIAN FOOD, INC.; BLFA PROPERTIES Date: May 19, 2023 16 LLC; NTN PROPERTIES LLC; NGOCHAO Time: 8:30 a.m. THI NGUYEN; RALPH BOZZO; ROSAURA Dept: 14 17 ARCOS PANIAGUA; AUSTIN ALARCON; and DOES 1-35, 18 Action Filed: November 16, 2021 Defendants. Trial Date: None Set 19 20 AND RELATED CROSS-ACTIONS 21 22 Defendants / Cross-Complainants GINO’S RESTAURANT, INC. and NGOCHAO THI 23 NGUYEN (“Defendants”) respectfully submit the following Reply Brief in response to Plaintiff’s 24 opposition to their Motion to Compel Deposition Responses. 25 /// 26 /// 27 /// 28 LEWIS BRISBOIS 1 BISGAARD & SMITH LLP DEFENDANTS / CROSS-COMPLAINANTS GINO’S RESTAURANT, INC.’S AND NGOCHAO THI NGUYEN’S ATTORNEYS AT LAW REPLY IN SUPPORT OF THEIR MOTION TO COMPEL DEPOSITION RESPONSES 1 I. ARGUMENT 2 A Plaintiffs’ Counsel Again Fails to Accurately Address the Law 3 1. Counsel’s Reliance on Roberts is misplaced. 4 Counsel failed to include in their Opposition that portion of a case that accurately 5 addresses their very argument. In Britt v. Superior Court (1978) 20 Cal.3d 844, it states a patient 6 “is not obligated to sacrifice all privacy to seek redress for a specific mental or emotional injury; 7 the scope of the inquiry permitted depends upon the nature of the injuries which the patient- 8 litigant himself has brought before the court.” (italics in original) (In re Lifschutz (1970) 2 Cal.3d 9 415, 435.) 10 In Roberts v. Superior Court (1973) 9 Cal.3d 330, 337-339, the court explicitly reaffirmed 11 Lifschutz's narrow interpretation of the scope of the patient-litigant exception. (In re Lifschutz at 12 p. 432, disclosure can be compelled with respect to those mental conditions the patient-litigant has 13 disclosed due to “the historically important state interest of facilitating the ascertainment of truth 14 in connection with legal proceedings.”) “This legitimate interest is just the beginning point of 15 analysis . . ., not, as [plaintiff] suggests, the conclusion.” (White v. Davis (1975) 13 Cal.3d 757, 16 766.) 17 At the deposition, Counsel relied heavily on Roberts v. Superior Court (1973) 9 Cal.3d 330 18 to support the position that the questions posed were not, in the mind of Counsel, relevant. 19 However, Roberts was decided in 1973, and the case of Stewart v. Colonial Western Agency 20 (2001) 87 Cal. App.4th 1006, decided 18 years later, provides that “For discovery purposes, 21 information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for 22 trial, or facilitating settlement . . . .’ [Citation.] Admissibility is not the test and information, unless 23 privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation.] These 24 rules are applied liberally in favor of discovery [citation], and (contrary to popular belief), fishing 25 expeditions are permissible in some cases.” (Gonzalez v. Superior Court (1995) 33 Cal. App. 4th 26 1539, 1546, quoting Weil & Brown, Cal. Practice Guide, Civil Procedure Before Trial (The Rutter 27 Group 1994) P 8:66.1, p. 8C-1.) (italics in original) Counsel fails to even address the Stewart case 28 LEWIS BRISBOIS 2 BISGAARD & SMITH LLP DEFENDANTS / CROSS-COMPLAINANTS GINO’S RESTAURANT, INC.’S AND NGOCHAO THI NGUYEN’S ATTORNEYS AT LAW REPLY IN SUPPORT OF THEIR MOTION TO COMPEL DEPOSITION RESPONSES 1 in its Opposition. Stewart dealt with a counsel who improperly instructed a witness not to answer 2 questions that were deemed relevant. Witnesses are expected to endure an occasional irrelevant 3 question without disrupting the deposition process. (Stewart at p. 1015.) 4 2. There is No Brightline Rule For “Garden Variety” Emotional Distress 5 “Garden variety” emotional injuries are argued to be those that an ordinary person would 6 experience in a similar situation arising from a similar incident (i.e., watching your family 7 members in pain after a car crashes through a restaurant, and while being injured, observes his 8 family members suffering from the injuries imposed by the accident.) Emotional injuries like this 9 include physical pain, mental suffering, loss of enjoyment of life, disfigurement, grief, anxiety, 10 and humiliation. (See CACI – 3905A.) No fixed standard exists for deciding the amount of these 11 noneconomic damages; thus, the jury is required to use their best judgment to decide a reasonable 12 amount of “garden variety” emotional injuries based on the evidence while using common sense. 13 (Id.) The discretion of the jury determines the amount of recovery, the only standard being such 14 an amount as a reasonable person would estimate as fair compensation. (Duarte v. Zachariah 15 (1994) 22Cal.App.4th 1652, 1664-1665.) 16 The testimony of a single person, including the plaintiff, may be sufficient to support an 17 award of emotional distress damages. (Knutson v. Foster (2018) 25 Cal.App.5th 1075, 1096.) 18 (italics in original) Thus, the credibility of that witness is paramount in convincing the jury as to 19 what the plaintiff, Michael, believes are his “garden variety” emotional distress claims. And, as 20 the only witness on that issue, his credibility comes into question, which means any inconsistent 21 evidence he has provided needs to be evaluated in order to impeach the credibility of the evidence, 22 as needed. 23 Furthermore, Michael is the only person who can testify as to his “mental suffering, loss of 24 enjoyment of life, disfigurement, grief, anxiety, and humiliation.” Thus, the questions posed in 25 the deposition are relevant to examine Michael so Defendants can evaluate this case for trial, and, 26 prepare its defenses. No matter how strenuously Counsel wants to opine on how Defendants 27 chooses to prepare its case, Counsel is not defending this case. Defendants’ counsel is charged 28 with that task. And by not asking the necessary questions at deposition in order to lay the LEWIS BRISBOIS 3 BISGAARD & SMITH LLP DEFENDANTS / CROSS-COMPLAINANTS GINO’S RESTAURANT, INC.’S AND NGOCHAO THI NGUYEN’S ATTORNEYS AT LAW REPLY IN SUPPORT OF THEIR MOTION TO COMPEL DEPOSITION RESPONSES 1 foundation for any evidence that is to be admitted at trial, Defendants’ counsel would be derelict 2 in the duty to provide a vigorous defense. 3 Counsel claims the evidence is clear in Michael’s discovery response where he states, “Tri 4 State prescribed pills escitalopram for anxiety and sleeping problems as result of the incident” as it 5 “was a typo made at the time the supplemental responses of Miachel (sic) Montano and Louie 6 Montano III were drafted.” (Opposition pg. 5, line 24.) 7 What is actually clear is that Counsel continues to make typos in the pleadings and 8 discovery responses submitted on Plaintiffs’ behalf in this matter. What’s not clear is what 9 Michael did or didn’t mean to submit in his responses at the time they were served. What needs to 10 be clarified is to examine Michael on what exactly he meant when the discovery responses were 11 served, and that is the fact that Counsel fails to grasp. The foundation for those documents needs 12 to be laid for trial. Asking the witness to lay the foundation for the document is required for 13 Defendants to defend this matter and introduce the discovery response(s) into evidence, if 14 necessary. Michael is the only one who can lay that foundation. If he doesn’t appear at trial, the 15 opportunity to lay that foundation has ceased to exist. Counsel is not a witness and cannot be 16 compelled to testify as to what Michael intended to identify when the responses were originally 17 served. 18 Furthermore, Counsel offered to stipulate to Michael’s claims at deposition, yet, instead of 19 producing the stipulation, “spent approximately (10) hours researching, writing, and preparing 20 [their] Opposition. [Expects] to spend another one (1) hour reviewing Defendants’ Reply. [And] 21 will spend another one (1) hour attending the hearing on the motion, for a total of approximately 22 twelve (12) hours of attorney time spent on this motion,.” (sic) (Sergio Declaration page 2, 23 paragraph 9.) This time was spent addressing an alleged “boilerplate” motion that was neither 24 “unique or complex.” (Opposition pg. 14, lines 1-2.) Instead of wasting this Court’s time, had 25 Counsel simply provided the stipulation they agreed to provide, this issue would be resolved. 26 Perhaps spending a little extra time proofreading their work product would’ve alleviated the need 27 for this motion in the first place. 28 LEWIS BRISBOIS 4 BISGAARD & SMITH LLP DEFENDANTS / CROSS-COMPLAINANTS GINO’S RESTAURANT, INC.’S AND NGOCHAO THI NGUYEN’S ATTORNEYS AT LAW REPLY IN SUPPORT OF THEIR MOTION TO COMPEL DEPOSITION RESPONSES 1 II. CONCLUSION 2 Defendants request the Court order that Michael’s deposition be completed, with a time 3 limit set of one-hour to complete the questions that could’ve been done had the deposition not 4 been so rudely interrupted. And, that Plaintiffs’ counsel pay for the one-hour deposition, as well 5 as any other costs and fees the Court seems fit to impose. 6 7 DATED: May 11, 2023 LEWIS BRISBOIS BISGAARD & SMITH LLP 8 9 By: 10 MATTHEW ZUMSTEIN CHANDRANI MANDAL 11 Attorneys for Defendants and Cross-Complainants 12 GINO’S RESTAURANT, INC. and NGOCHAO THI NGUYEN 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LEWIS BRISBOIS 5 BISGAARD & SMITH LLP DEFENDANTS / CROSS-COMPLAINANTS GINO’S RESTAURANT, INC.’S AND NGOCHAO THI NGUYEN’S ATTORNEYS AT LAW REPLY IN SUPPORT OF THEIR MOTION TO COMPEL DEPOSITION RESPONSES 1 CALIFORNIA STATE COURT PROOF OF SERVICE Louis Montano, Jr., et al. v. City of Salinas, et al. 2 Monterey County Superior Court Case No. 21CV003635 3 STATE OF CALIFORNIA, COUNTY OF CONTRA COSTA 4 At the time of service, I was over 18 years of age and not a party to this action. My business address is 2185 North California Boulevard, Suite 300, Walnut Creek, CA 94596. 5 On May 12, 2023, I served true copies of the following document(s): 6 DEFENDANTS / CROSS-COMPLAINANTS GINO’S RESTAURANT, INC.’S AND 7 NGOCHAO THI NGUYEN’S REPLY IN SUPPORT OF THEIR MOTION TO COMPEL DEPOSITION RESPONSES 8 I served the documents on the following persons at the following addresses (including fax 9 numbers and e-mail addresses, if applicable): 10 SEE ATTACHED SERVICE LIST 11 The documents were served by the following means: 12 (BY E-MAIL OR ELECTRONIC TRANSMISSION) Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the 13 documents to be sent from e-mail address Dusty.James@lewisbrisbois.com to the persons at the e-mail addresses listed above. I did not receive, within a reasonable time after the 14 transmission, any electronic message or other indication that the transmission was unsuccessful. 15 (BY ELECTRONIC TRANSMISSION ONLY) Only by e-mailing the document(s) to the 16 persons at the e-mail address(es) listed above based on notice provided on March 16, 2020 that, during the Coronavirus (COVID-19) pandemic, this office will be working remotely, 17 not able to send physical mail as usual, and is therefore using only electronic mail. No electronic message or other indication that the transmission was unsuccessful was received 18 within a reasonable time after the transmission. 19 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 20 Executed on May 12, 2023, at Walnut Creek, California. 21 22 23 Dusty James 24 25 26 27 28 1 SERVICE LIST Louis Montano, Jr., et al. v. City of Salinas, et al. 2 Monterey County Superior Court Case No. 21CV003635 3 Emily Ruby. Esq. Attorneys for Plaintiffs Sergio Cardenas, Esq. LOUIS MONTANO, JR., LOUIE MONTANO 4 GREENBERG AND RUBY III, AND MICHAEL MONTANO 6100 Wilshire Boulevard, Suite 1170 5 Los Angeles, CA 90048 Tel: 323.782.0535 Fax: 323.782.0543 6 Email: eruby@caltrialpros.com Scardenas@caltrialpros.com. 7 KDobroth@caltrialpros.com 8 Richard C. Alpers Attorneys for Plaintiffs ALBERS LAW GROUP, INC. LOUIS MONTANO, JR., LOUIE MONTANO 9 PO Box 1540 III, AND MICHAEL MONTANO Aptos, CA 95001 10 Tel: 855.808.1174 Fax: 855.870.1129 11 Email: rca@alperslawgroup.com clerk@alperslawgroup.com 12 Joseph J. Babich Attorneys for Plaintiff MARIA ARELLANO 13 Sean D. Wiseman Dreyer Babich Buccola Wood Campora, LLP 14 20 Bicentennial Circle P: (916) 379-3500 • F: (916) 379-3599 Sacramento, CA 95826 Emails: DBBWC-ESERVICE@dbbwc.com; 15 jbabich@dbbwc.com; tstevens@dbbwc.com 16 Christopher A. Callihan, Esq. Attorneys for Defendant CITY OF SALINAS, OFFICE OF THE CITY CITY OF SALINAS 17 ATTORNEY 200 Lincoln Avenue Tel: (831) 758-7073 (direct) 18 Salinas, CA 93901-2639 Fax: (831) 758-7257 Email: chrisc@ci.salinas.ca.us 19 William R. Price, Esq. Co Counsel for Defendant 20 Lisa Shaw, Paralegal CITY OF SALINAS LAW OFFICES OF WILLIAM R. PRICE 21 12636 High Bluff Dr., Suite 400 Tel: (858) 888-0588 San Diego, CA 92130 Emails: wprice@williamrprice.com; 22 lshaw@williamrprice.com 23 James J. Cook, Esq. Attorneys for Defendants HORAN | LLOYD, APC. RALPH BOZZO; BLFA PROPERTIES, LLC; 24 26385 Carmel Rancho Blvd., Suite 200 AND GINO'S FINE ITALIAN FOOD, INC. Carmel, CA 93923 25 Tel: (831) 373-4131 Fax: (831) 373-8302 26 Email: jcook@horanlegal.com 27 28 2 1 Rodney N. Mayr, Esq. Attorneys for Defendants MAYR LAW FIRM AUSTIN ALARCON AND ROSAURA 2 1010 W. Taylor St. ARCOS PANIAGUA San Jose, CA 95126 3 Tel: (408) 331-7606 Fax: (669) 266-5612 4 Email: rodney@mayrlawfirm.com 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3