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WENDY YORK, California Bar No. 166864
2 REBEKAH R GIBSON, California Bar No. 252111
YORK LAW CORPORATION
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1 1 1 1 Exposition Blvd , Bldg 500
Saciamenlo, CA95815
4 SEP -^2009
Tel. 916-643-2200
5 Fax 916-643-4680
6 Attorneys for Plaintiffs
EDITH HUDDLESTON, MARTINA K. ZUBEIDI, as
7 individuals and as Successors in Interest of ERNEST
HUDDLESTON (Decedent)
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10 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA,
11 IN AND FOR THE COUNTY OF SACRAMENTO
12 EDITH M. HUDDLESTON, and CASE NO : 34-2008-00008404
MARTINA K. ZUBEIDI, as individuals and
13 as Successors in Interest of ERNEST
HUDDLESTON (Decedent) PLAINTIFF'S EXPARTE APPLICATION
14 FOR ORDER SHORTENING TIME TO
HEAR PLAINTIFFS' MOTION TO
15 Plaintiffs,
COMPEL DEPOSITION OF KATHRYN
16 vs HILL AND MOTION FOR SANCTIONS;
POINTS AND AUTHORITIES;
17 SAINT CLAIRE'S NURSING CENTER, DECLARATION OF REBEKAH R. GIBSON
INC and DOES 1 through 50 inclusive. IN SUPPORT THEREOF
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Defendants. Date. September 8, 2009
19 Time 9' 15 a.m.
Dept: 53
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I. INTRODUCTION
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Plaintiffs EDITH M HUDDLESTON and MARTINA K. ZUBEIDI bring this ex parte
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application pursuant to California Rules of Court 3.1300(b) for (1) an order shortening time for
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the Couit to hear Plaintiffs Motion to Compel the deposition of Kathryn Hill, the corporate
26 owner/piesident of Defendant SAINT CLAIRE'S NURSING CENTER, INC This motion is
27 made ex parte on the grounds that this matter is currently set for trial on November 2, 2009, and
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Plaintiffs E\ Parte Motion lor an Order Shortening Time to Hear Plaintifls' Motion to Compel Deposition of Kathr>n Hill
1 there is not sufficient time for a noticed motion without significant prejudice, cost, and
2 inconvenience to the parties and the Court
Plaintiffs have given Defendants the required 24-hour notice of the ex parte hearing
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Plaintiffs' counsel has conferred with Defense counsel and Defense counsel has expressed that
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Defendant SAINT CLAIRE'S will oppose Plaintiffs' ex parte application for shortened time.
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- Plaintiffs' motion for an Order Shortening Time is based on the fact trial is currently set
8 for November 2, 2009, fifty-five days (55 days) from the date of this ex parte hearing. A
9 regularly noticed motion will not permit sufficient time for the hearing of the motion and a
subsequent deposition if the motion is granted, prior to trail.
The deposition of Ms. Hill was originally calendared for March 16, 2009, but was taken
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off calendar based on representations by counsel that she did not have direct knowledge of the
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issues relevant to Plaintiffs' case. Ms. Hill's deposition was placed back on calendar for July 9,
]c 2009, after further discovery was completed which indicated that Ms. Hill may have information
16 relevant to Plaitmffs' claims. Defendant SAINT CLAIRE'S objected that Ms. Hill was not
17 available on that date and again objected to the taking of Ms. Hill's deposition and refused to
pioduce her.
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Plaintiffs' motion is also based on the fact that Defendant refused to produce a pivotal
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witness, the owner/president of the named corporation SAINT CLAIRE'S prior to discovery cut-
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off. Defendant's refusal is despite the fact that Plaintiffs' claims involve proof of corporate
23 ratification and/or authorization of which this witness has direct knowledge. As evidenced by the
24 testimony of several of Defendant's other witnesses who were produced for deposition, Ms. Hill
25 has dnect knowledge of issues in this case Such a refusal by Defendant is prejudicial to
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Plaintiffs preparation for such a complex tual and offends the purposes of the Discovery Act to
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' Gibson Decl \ 8, Ex. A.
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Plaintiffs E\ Parte Motion for an Order Shortening Time to Hear Plaintiffs' Motion to Compel Deposition of Kathryn 1
1 prevent surprise and unfair advantage at trial.
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II. FACTUAL AND PROCEDURAL BACKGROUND
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A. Case Summary and Procedural History
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Plaintiffs EDITH HUDDLESTON and MARTINA K. ZUBEIDI, individuals and
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successors in interest of ERNEST HUDDLESTON, filed a complaint for elder abuse and
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neglect of Decedent on March 10, 2008, against Defendant SAINT CLAIRE'S NURSING
g CENTER (hereinafter "SAINT CLAIRE'S"). Defendant SAINT CLAIRE'S was served with
9 Plaintiffs initial complaint on April 28, 2008 After meeting and conferring regarding this initial
pleading Plaintiffs agreed to file an amended complaint. Plaintiffs First Amended Complaint
(hereinafter "FAC") was filed and served on November 18, 2008. Defendant filed a demurrer
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and motion to strike as to numerous parts of Plaintiffs' FAC The court overruled Defendant's
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demuirer as to Plaintiffs causes of action for elder abuse/neglect, negligence per se and wrongful
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,c death The court sustained with leave to amend Defendant's demurrer as to Plaintiffs claims for
16 fraud/misrepiesentation and unfair business practices. Plaintiffs filed and served their Second
17 Amended Complaint on February 3, 2009 Defendant filed another demurrer and motion to
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strike which was heard on April 24, 2009. Plaintiffs filed a Third Amended Complaint on May
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4, 2009. Defendant SAINT CLAIRE'S filed an answer on May 14, 2009
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Plaintiffs and Defendant have conducted extensive discovery in this matter consisting of
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depositions and significant written discovery Plaintiff EDITH HUDDLESTON was granted
23 trial preference by this Court and a trial date was set for August 24, 2009. Due to unavoidable
24 conflicts on the part of Plaintiffs' counsel trial was continued to November 2, 2009 pursuant to
25 the terms of a stipulation filed by the parties. The Court's order to continue trial also ordered
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that discovery was to remain closed absent stipulation of the parties. As such, Plaintiffs sought
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a stipulation by Defendant to permit the deposition of Ms. Hill to proceed based on the
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Plaintiffs C\ Pane Motion lor (\n Order Shortening Time to 1 lear Plaintiffs' Molion to Compel Deposition of Kathrvn Hill
testimony of SAINT CLAIRE'S' employees. Defendant's, however, still refuse to present her
2 for deposition. No agreement was reached between the parties, or ordered by the Court, in
regards to the discovery motion cut off.
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Pursuant to California Rule of Court Rule 3.1203(a) counsel notified the Defendant of the
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ex parts hearing on Thursday, September 3, 2009 via email and facsimile. 2
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III. LEGAL ARGUMENT
8 A. THE COURT SHOULD GRANT AN ORDER TO HEAR PLAINTIFFS' MOTION To COMPEL
ON SHORTENED TIME BECAUSE THE BEST INTERESTS OF THE PARTIES WOULD BE
9 SERVED BY DETERMINATION OF PLAINTIFFS' MOTION PRIOR TO TRIAL.
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California Rules of Court Rule 3.1300(b) provides that:
(b) The court, on its own motion or on application for an order shortening
12 time supported by a declaration showing good cause, may prescribe
shorter times for the filing and service of papers than the times specified in
Code of Civil Procedure section 1005
Ex parte relief is appropriate because there is not sufficient time for a noticed motion
without significant prejudice, cost, and inconvenience to the parties and the Court. The parties
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would be irreparably harmed if they were required to wait for a noticed motion while they spent
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time and money preparing their case for trial. 4 Counsel, the parties, and the Court will benefit
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from an early determination of Plaintiff s Motion to Compel
20 Good cause exists to shorten time for hearing on Plaintiffs' Motion to Compel the
21 Deposition of Kathryn Hill for two reasons (1) Trial is presently set for November 2, 2009, and
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the parties need adequate time to have this motion resolved and to prepare for trial and (2)
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Defendant SAINT CLAIRE'S refusal to produce their owner/president for deposition is improper
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wheie deposition testimony of other Defendant employees supports Plaintiffs' assertion that this
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witness has direct knowledge of relevant facts.
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Gibson Decl. If 8, Exhibit A.
3
28 Cal. Rules Ct 3.1202(c).
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Plaintiffs E\ Pane Motion for an Order Shortening Time to Hear Plaintiffs' Motion to Compel Deposition of Kathryn Hill
1 The witness that Defendant refuses to produce, Kathryn Hill, is the owner/president of the
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Defendant corporation, SAINT CLAIRE'S NURSING CENTER, INC. This witness's testimony
is pivotal to Plaintiffs' case in that Plaintiffs have a burden to prove corporate ratification and/or
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authonzation in regards to their claims for elder neglect/abuse and fraud/misrepresentation
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Based on deposition testimony provided by numerous other employee witnesses produced by
6
- Defendant, Plaintiffs are informed that Ms. Hill has direct knowledge relevant to this case
g Plaintiffs initially took her deposition off calendar based on Defendant's representations that she
9 had no direct knowledge and was merely a corporate official However, contrary to the assertion
of defense counsel, other employees of Defendant have testified about her involvement in the
opeiation of the facility. This knowledge was obtained through depositions that occurred after the
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first deposition was taken off calendar, and after Defendant failed to produce Ms. Hill for the
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second noticed deposition.
F
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!5 B. PLAINTIFFS' MOTION To COMPEL Is PROPER BASED ON DEFENDANTS REFUSAL TO
PRODUCE A CORPORATE OFFICER WHO HAS DIRECT KNOWLEDGE OF THE RELEVANT
16 FACTS AND CIRCUMSTANCES OF PLAINTIFFS' CLAIMS.
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Accoidmg to California Code of Civil Procedure §2025.450, a motion to compel
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19 attendance at a deposition may be brought where "an officer... of a party" fails to appear without
20 a valid objection. Defendant's sole objection to date has been that Ms. Hill does not have
21 personal knowledge of the decedent's care and treatment. However, Defendant's own employee
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witnesses have provided contrary testimony. Further, Defendant at no time has sought a
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piotective order regarding Ms. Hill's deposition Based on Defendant's blatant refusal to
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produce a relevant witness for deposition without a valid objection, despite multiple efforts on
the pait of Plaintiffs to obtain such a deposition, and despite the testimony of Defendant's
27 employees testimony, Plaintiffs Motion to Compel is valid and should be heard at the earliest
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Gibson Decl ^ 9
Plaintiffs E\ Pane Motion lor an Order Shortening Time to Hear Plaintiffs' Motion to Compel Deposition of Kathryn Hill
possible date to avoid further harm to Plaintiffs and delay at trial.
2
IV. CONCLUSION
Based on the upcoming trial date and the necessity of the deposition in regards to
4
Plaintiffs' claims, Plaintiffs respectfully request an order shortening time to have heard their
5
Motion to Compel the deposition of Kathryn Hill. An order shortening time will avoid further
6
7 prejudice to Plaintiffs in their preparation for trial through the continued refusal of Defendant to
produce a key witness who has direct knowledge of the Plaintiffs' claims.
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Date- September 4, 2009 YORK LAW CORPORATION
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12 WENDY C.YORK
REBEKAH R. GIBSON
13 Attorneys for Plaintiff
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Plaintiffs E\ Partc Motion lor an Order Shortening Time to Hear Plaintiffs' Motion to Compel Deposition of Kathryn Hill
1 DECLARATION OF REBEKAH R. GIBSON
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1, REBEKAH R. GIBSON, do hereby declare and say the following based on my own
4 personal knowledge.
5 1. I am an attorney at law duly licensed to practice before all Courts of the state of
6 California 1 am one of the attorneys of record for Plaintiffs in the above-entitled case.
2. This is an elder abuse/neglect and wrongful death case brought by Plaintiffs Edith
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Huddleston and Martina Zubeidi against Saint Claire's Nursing Center, Inc. for the care and
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treatment received by decedent Ernest Huddleston. Plaintiffs filed this case on April 28, 2008
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Saint Claire's answered the complaint on May 14, 2009.
p 3. This matter is presently set for trial on November 2, 2009. Trial was originally set
13 for August 24, 2009, but was continued by stipulation of the parties due to conflicting trial
14 commitments on the part of Plaintiffs' trial counsel. The stipulation to continue trial included a
stipulation that discovery would remain closed absent stipulation of the parties. No stipulation
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was discussed or reached in regards to discovery motions
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4. Plaintiffs and their counsel would suffer significant prejudice were they required to
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ig have their motion heard as a regularly scheduled motion. Trial is in less than two months and
20 Plaintiffs need adequate time to finalize their preparations for trial.
21 8 Pursuant to California Rule of Court Rule 3.1203(a) and the local rules of this
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Court Plaintiffs' counsel notified Defendant of the ex parts hearing on September 8, 2009, in
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writing via facsimile and via email (See Exhibit A). Defense counsel indicated at that time that
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they would oppose the ex parle request for shortened time. Defense counsel has indicated that
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they will also oppose Plaintiffs motion to compel
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27 9 The parties would be irreparably harmed if they were required to wait for a noticed
28 motion while they spent time and money preparing their case for trial without the knowledge that
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PlamtifTs Ex Parte Motion for an Order Shortening Time to Hear Plaintiffs' Motion to Compel Deposition of Kathryn Hill
this witness will provide.
I declare under penalty of perjury that the foregoing is true and correct. This declaration
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was executed on September 4, 2009, in Sacramento, California.
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YORK
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Attorney for Plaintif
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PiiUiUilfs E\ Partc Motion for an Order Shortening Time to Hear Plamtifls' Motion to Compel Deposition of Kalhrvn 1
EXHIBIT A
,
YORJC
L A W C O R P O R A T I O N
September 3, 2009
VIA FACSIMILE & U.S. Mail
(916)443-4855
Bryan L Malone, Esq.
Prout & Levangie
2021 N Street
Sacramento, California 95811
Re: Mil (I dies ton v. Saint Claire's Nursing Center, Inc
County of Sacramento Superior Court
Case No: 34-2008-00008404
Mr. Malone:
This letter is to inform you that the Ex Parte Hearing for an Order Shortening
Time on Plaintiffs Motion to Compel the deposition of Kathryn Hill will be held on
Tuesday, September 8, 2009, at 9:15am in Dept. 53 of the Sacramento County
Superior Court.
Rebekah R. Grfoson
I I I I EXPOSITION BOULEVARD, DLDG 500, SACRAMENTO, CA 95815
T 916 (143 2200 F 916 641 4680 inwwyO}klau>co>p com
p A i R F i r L D omen
T70742I 1422
Rebekah Gibson
From: Rebekah Gibson
Sent: Thursday, September 03, 2009 11 45 AM
To: 'Bryan L Malone'
Subject: Huddleston - Motion to Compel Kathryn Hill Deposition
Bryan,
We are going to bring a motion to compel Ms Hill's deposition I have an ex parte hearing scheduled for next Tuesday,
Sept 8th requesting that it be heard on shortened time I wanted to inquire whether you oppose having it heard on
shortened time If you are agreeable to a shortened hearing schedule please let me know by the end of the day, along
with dates that you are available for hearing and any requests in regards to the briefing schedule
Sincerely,
Rebekah R. Gibson
i'£ihsoii(G N yorklaw corp.com
1 1 1 1 imposition BoiiIcA iml, Building 500
Sacramento, California 95815
Phone 1-916-643-2200
Fax 1-916-643-4680
httpV/www yorklawcoip.com
***** PLEASE NOTE *****
This E-Mail/telefax message and any documents accompanying this transmission may
contain privileged and/or confidential information and is intended solely for
the addressee (s) named above. If you are not the intended addressee/recipient,
you are hereby notified that any use of, disclosure, copying, distribution, or
reliance on the contents of this E-Mail/telefax information is strictly prohibited
and may result in legal action against you. Please reply to the sender advising of
the error in transmission and immediately delete/destroy the message and any
accompanying documents
1 COURT: Sacramento County Superior Court
CASE NO. 34-2008-00008404
2
CASE NAME: Huddleston v. St. Claire's Nursing Center, et al.
PROOF OF SERVICE
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I am a citizen of the United States, employed in the County of Sacramento, State of
California. My business address is 1111 Exposition Boulevard, Building 500, Sacramento CA
95815. I am over the age of 18 years and not a party to the above-entitled action.
I am readily familiar with York Law Corporation's practice for collection and processing
of correspondence for mailing with the United States Postal Service. Pursuant to said practice,
each document is placed in an envelope, the envelope is sealed, the appropriate postage is placed
thereon and the sealed envelope is placed in the office mail receptacle. Each day's mail is
collected and deposited in a U.S. mailbox at or before the close of each day's business. (CCP
Section 1013a(3)orFed.R.Civ.P.5(a)and4 1;USDC(ED CA) L.R. 5-135(a))
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11 On September 4, 2009,1 caused the within, PLAINTIFF'S EX PARTE APPLICATION FOR
ORDER SHORTENING TIME TO HEAR PLAINTIFFS' MOTION TO COMPEL
12 DEPOSITION OF KATHRYN HILL AND MOTION FOR SANCTIONS ; POINT SAND
AUTHORITIES; DECLARATION OF REBEKAH R. GIBSON IN SUPPORT THEREOF
13 AND EXH A, to be served via
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^ FAXANDMAIL--
I personally sent to the addressee's telecopier number indicated below a true copy of the above-described
document(s) before 5.00 p m I verified transmission without error by a transmission report issued by the
facsimile machine upon which said transmission was made immediately following the transmission A true
and correct copy of the said transmission report is attached hereto and incorporated heiem by this reference
Thereafter, I placed a true copy in a sealed envelope with first class postage affixed and mailed as follows
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Bryan L Malone, Esq.
Prout & Levangie
19 2021 N Street
Sacramento CA 95811
20 (916)443-4855
I declare that I am employed in the office of a member of the bar of this Court at whose
22 direction the service was made and that this Declaration is executed on September 4, 2009 a
Sacramento, California I declare under penalty rt of perjury unyler the laws of the State of
23 California that the foregoing is true and conic
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Eve KnighT
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Proof Of Service- 1
Preview
1 WENDY YORK, California Bar No. 166864 2 REBEKAH R GIBSON, California Bar No. 252111 YORK LAW CORPORATION 3 1 1 1 1 Exposition Blvd , Bldg 500 Saciamenlo, CA95815 4 SEP -^2009 Tel. 916-643-2200 5 Fax 916-643-4680 6 Attorneys for Plaintiffs EDITH HUDDLESTON, MARTINA K. ZUBEIDI, as 7 individuals and as Successors in Interest of ERNEST HUDDLESTON (Decedent) 8 9 10 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, 11 IN AND FOR THE COUNTY OF SACRAMENTO 12 EDITH M. HUDDLESTON, and CASE NO : 34-2008-00008404 MARTINA K. ZUBEIDI, as individuals and 13 as Successors in Interest of ERNEST HUDDLESTON (Decedent) PLAINTIFF'S EXPARTE APPLICATION 14 FOR ORDER SHORTENING TIME TO HEAR PLAINTIFFS' MOTION TO 15 Plaintiffs, COMPEL DEPOSITION OF KATHRYN 16 vs HILL AND MOTION FOR SANCTIONS; POINTS AND AUTHORITIES; 17 SAINT CLAIRE'S NURSING CENTER, DECLARATION OF REBEKAH R. GIBSON INC and DOES 1 through 50 inclusive. IN SUPPORT THEREOF 18 Defendants. Date. September 8, 2009 19 Time 9' 15 a.m. Dept: 53 20 21 I. INTRODUCTION 22 Plaintiffs EDITH M HUDDLESTON and MARTINA K. ZUBEIDI bring this ex parte 23 application pursuant to California Rules of Court 3.1300(b) for (1) an order shortening time for 24 25 the Couit to hear Plaintiffs Motion to Compel the deposition of Kathryn Hill, the corporate 26 owner/piesident of Defendant SAINT CLAIRE'S NURSING CENTER, INC This motion is 27 made ex parte on the grounds that this matter is currently set for trial on November 2, 2009, and 28 -1-' Plaintiffs E\ Parte Motion lor an Order Shortening Time to Hear Plaintifls' Motion to Compel Deposition of Kathr>n Hill 1 there is not sufficient time for a noticed motion without significant prejudice, cost, and 2 inconvenience to the parties and the Court Plaintiffs have given Defendants the required 24-hour notice of the ex parte hearing 4 Plaintiffs' counsel has conferred with Defense counsel and Defense counsel has expressed that 5 Defendant SAINT CLAIRE'S will oppose Plaintiffs' ex parte application for shortened time. 6 - Plaintiffs' motion for an Order Shortening Time is based on the fact trial is currently set 8 for November 2, 2009, fifty-five days (55 days) from the date of this ex parte hearing. A 9 regularly noticed motion will not permit sufficient time for the hearing of the motion and a subsequent deposition if the motion is granted, prior to trail. The deposition of Ms. Hill was originally calendared for March 16, 2009, but was taken 12 off calendar based on representations by counsel that she did not have direct knowledge of the 13 issues relevant to Plaintiffs' case. Ms. Hill's deposition was placed back on calendar for July 9, ]c 2009, after further discovery was completed which indicated that Ms. Hill may have information 16 relevant to Plaitmffs' claims. Defendant SAINT CLAIRE'S objected that Ms. Hill was not 17 available on that date and again objected to the taking of Ms. Hill's deposition and refused to pioduce her. 19 Plaintiffs' motion is also based on the fact that Defendant refused to produce a pivotal 20 witness, the owner/president of the named corporation SAINT CLAIRE'S prior to discovery cut- 21 off. Defendant's refusal is despite the fact that Plaintiffs' claims involve proof of corporate 23 ratification and/or authorization of which this witness has direct knowledge. As evidenced by the 24 testimony of several of Defendant's other witnesses who were produced for deposition, Ms. Hill 25 has dnect knowledge of issues in this case Such a refusal by Defendant is prejudicial to O/" Plaintiffs preparation for such a complex tual and offends the purposes of the Discovery Act to 27 28 ' Gibson Decl \ 8, Ex. A. -2- Plaintiffs E\ Parte Motion for an Order Shortening Time to Hear Plaintiffs' Motion to Compel Deposition of Kathryn 1 1 prevent surprise and unfair advantage at trial. 2 II. FACTUAL AND PROCEDURAL BACKGROUND ^> A. Case Summary and Procedural History 4 Plaintiffs EDITH HUDDLESTON and MARTINA K. ZUBEIDI, individuals and 5 successors in interest of ERNEST HUDDLESTON, filed a complaint for elder abuse and 6 neglect of Decedent on March 10, 2008, against Defendant SAINT CLAIRE'S NURSING g CENTER (hereinafter "SAINT CLAIRE'S"). Defendant SAINT CLAIRE'S was served with 9 Plaintiffs initial complaint on April 28, 2008 After meeting and conferring regarding this initial pleading Plaintiffs agreed to file an amended complaint. Plaintiffs First Amended Complaint (hereinafter "FAC") was filed and served on November 18, 2008. Defendant filed a demurrer 12 and motion to strike as to numerous parts of Plaintiffs' FAC The court overruled Defendant's 13 demuirer as to Plaintiffs causes of action for elder abuse/neglect, negligence per se and wrongful 14 ,c death The court sustained with leave to amend Defendant's demurrer as to Plaintiffs claims for 16 fraud/misrepiesentation and unfair business practices. Plaintiffs filed and served their Second 17 Amended Complaint on February 3, 2009 Defendant filed another demurrer and motion to 18 strike which was heard on April 24, 2009. Plaintiffs filed a Third Amended Complaint on May 19 4, 2009. Defendant SAINT CLAIRE'S filed an answer on May 14, 2009 20 Plaintiffs and Defendant have conducted extensive discovery in this matter consisting of 21 depositions and significant written discovery Plaintiff EDITH HUDDLESTON was granted 23 trial preference by this Court and a trial date was set for August 24, 2009. Due to unavoidable 24 conflicts on the part of Plaintiffs' counsel trial was continued to November 2, 2009 pursuant to 25 the terms of a stipulation filed by the parties. The Court's order to continue trial also ordered 9/i that discovery was to remain closed absent stipulation of the parties. As such, Plaintiffs sought 27 a stipulation by Defendant to permit the deposition of Ms. Hill to proceed based on the 28 -3- Plaintiffs C\ Pane Motion lor (\n Order Shortening Time to 1 lear Plaintiffs' Molion to Compel Deposition of Kathrvn Hill testimony of SAINT CLAIRE'S' employees. Defendant's, however, still refuse to present her 2 for deposition. No agreement was reached between the parties, or ordered by the Court, in regards to the discovery motion cut off. 4 Pursuant to California Rule of Court Rule 3.1203(a) counsel notified the Defendant of the 5 ex parts hearing on Thursday, September 3, 2009 via email and facsimile. 2 6 III. LEGAL ARGUMENT 8 A. THE COURT SHOULD GRANT AN ORDER TO HEAR PLAINTIFFS' MOTION To COMPEL ON SHORTENED TIME BECAUSE THE BEST INTERESTS OF THE PARTIES WOULD BE 9 SERVED BY DETERMINATION OF PLAINTIFFS' MOTION PRIOR TO TRIAL. 10 California Rules of Court Rule 3.1300(b) provides that: (b) The court, on its own motion or on application for an order shortening 12 time supported by a declaration showing good cause, may prescribe shorter times for the filing and service of papers than the times specified in Code of Civil Procedure section 1005 Ex parte relief is appropriate because there is not sufficient time for a noticed motion without significant prejudice, cost, and inconvenience to the parties and the Court. The parties 16 would be irreparably harmed if they were required to wait for a noticed motion while they spent 17 time and money preparing their case for trial. 4 Counsel, the parties, and the Court will benefit 18 from an early determination of Plaintiff s Motion to Compel 20 Good cause exists to shorten time for hearing on Plaintiffs' Motion to Compel the 21 Deposition of Kathryn Hill for two reasons (1) Trial is presently set for November 2, 2009, and 22 the parties need adequate time to have this motion resolved and to prepare for trial and (2) 23 Defendant SAINT CLAIRE'S refusal to produce their owner/president for deposition is improper 24 wheie deposition testimony of other Defendant employees supports Plaintiffs' assertion that this 25 witness has direct knowledge of relevant facts. 2 Gibson Decl. If 8, Exhibit A. 3 28 Cal. Rules Ct 3.1202(c). -4- Plaintiffs E\ Pane Motion for an Order Shortening Time to Hear Plaintiffs' Motion to Compel Deposition of Kathryn Hill 1 The witness that Defendant refuses to produce, Kathryn Hill, is the owner/president of the 2 Defendant corporation, SAINT CLAIRE'S NURSING CENTER, INC. This witness's testimony is pivotal to Plaintiffs' case in that Plaintiffs have a burden to prove corporate ratification and/or 4 authonzation in regards to their claims for elder neglect/abuse and fraud/misrepresentation 5 Based on deposition testimony provided by numerous other employee witnesses produced by 6 - Defendant, Plaintiffs are informed that Ms. Hill has direct knowledge relevant to this case g Plaintiffs initially took her deposition off calendar based on Defendant's representations that she 9 had no direct knowledge and was merely a corporate official However, contrary to the assertion of defense counsel, other employees of Defendant have testified about her involvement in the opeiation of the facility. This knowledge was obtained through depositions that occurred after the 12 first deposition was taken off calendar, and after Defendant failed to produce Ms. Hill for the 13 second noticed deposition. F 14 !5 B. PLAINTIFFS' MOTION To COMPEL Is PROPER BASED ON DEFENDANTS REFUSAL TO PRODUCE A CORPORATE OFFICER WHO HAS DIRECT KNOWLEDGE OF THE RELEVANT 16 FACTS AND CIRCUMSTANCES OF PLAINTIFFS' CLAIMS. 17 Accoidmg to California Code of Civil Procedure §2025.450, a motion to compel 18 19 attendance at a deposition may be brought where "an officer... of a party" fails to appear without 20 a valid objection. Defendant's sole objection to date has been that Ms. Hill does not have 21 personal knowledge of the decedent's care and treatment. However, Defendant's own employee 22 witnesses have provided contrary testimony. Further, Defendant at no time has sought a 23 piotective order regarding Ms. Hill's deposition Based on Defendant's blatant refusal to 24 produce a relevant witness for deposition without a valid objection, despite multiple efforts on the pait of Plaintiffs to obtain such a deposition, and despite the testimony of Defendant's 27 employees testimony, Plaintiffs Motion to Compel is valid and should be heard at the earliest 28 Gibson Decl ^ 9 Plaintiffs E\ Pane Motion lor an Order Shortening Time to Hear Plaintiffs' Motion to Compel Deposition of Kathryn Hill possible date to avoid further harm to Plaintiffs and delay at trial. 2 IV. CONCLUSION Based on the upcoming trial date and the necessity of the deposition in regards to 4 Plaintiffs' claims, Plaintiffs respectfully request an order shortening time to have heard their 5 Motion to Compel the deposition of Kathryn Hill. An order shortening time will avoid further 6 7 prejudice to Plaintiffs in their preparation for trial through the continued refusal of Defendant to produce a key witness who has direct knowledge of the Plaintiffs' claims. 9 Date- September 4, 2009 YORK LAW CORPORATION 10 11 12 WENDY C.YORK REBEKAH R. GIBSON 13 Attorneys for Plaintiff 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- Plaintiffs E\ Partc Motion lor an Order Shortening Time to Hear Plaintiffs' Motion to Compel Deposition of Kathryn Hill 1 DECLARATION OF REBEKAH R. GIBSON 2 1, REBEKAH R. GIBSON, do hereby declare and say the following based on my own 4 personal knowledge. 5 1. I am an attorney at law duly licensed to practice before all Courts of the state of 6 California 1 am one of the attorneys of record for Plaintiffs in the above-entitled case. 2. This is an elder abuse/neglect and wrongful death case brought by Plaintiffs Edith 8 Huddleston and Martina Zubeidi against Saint Claire's Nursing Center, Inc. for the care and 9 treatment received by decedent Ernest Huddleston. Plaintiffs filed this case on April 28, 2008 10 Saint Claire's answered the complaint on May 14, 2009. p 3. This matter is presently set for trial on November 2, 2009. Trial was originally set 13 for August 24, 2009, but was continued by stipulation of the parties due to conflicting trial 14 commitments on the part of Plaintiffs' trial counsel. The stipulation to continue trial included a stipulation that discovery would remain closed absent stipulation of the parties. No stipulation 16 was discussed or reached in regards to discovery motions 17 4. Plaintiffs and their counsel would suffer significant prejudice were they required to 18 ig have their motion heard as a regularly scheduled motion. Trial is in less than two months and 20 Plaintiffs need adequate time to finalize their preparations for trial. 21 8 Pursuant to California Rule of Court Rule 3.1203(a) and the local rules of this oo Court Plaintiffs' counsel notified Defendant of the ex parts hearing on September 8, 2009, in 23 writing via facsimile and via email (See Exhibit A). Defense counsel indicated at that time that 24 they would oppose the ex parle request for shortened time. Defense counsel has indicated that 25 they will also oppose Plaintiffs motion to compel 26 27 9 The parties would be irreparably harmed if they were required to wait for a noticed 28 motion while they spent time and money preparing their case for trial without the knowledge that -7- PlamtifTs Ex Parte Motion for an Order Shortening Time to Hear Plaintiffs' Motion to Compel Deposition of Kathryn Hill this witness will provide. I declare under penalty of perjury that the foregoing is true and correct. This declaration 3 was executed on September 4, 2009, in Sacramento, California. 4 YORK 5 6 Attorney for Plaintif 7 8 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8- PiiUiUilfs E\ Partc Motion for an Order Shortening Time to Hear Plamtifls' Motion to Compel Deposition of Kalhrvn 1 EXHIBIT A , YORJC L A W C O R P O R A T I O N September 3, 2009 VIA FACSIMILE & U.S. Mail (916)443-4855 Bryan L Malone, Esq. Prout & Levangie 2021 N Street Sacramento, California 95811 Re: Mil (I dies ton v. Saint Claire's Nursing Center, Inc County of Sacramento Superior Court Case No: 34-2008-00008404 Mr. Malone: This letter is to inform you that the Ex Parte Hearing for an Order Shortening Time on Plaintiffs Motion to Compel the deposition of Kathryn Hill will be held on Tuesday, September 8, 2009, at 9:15am in Dept. 53 of the Sacramento County Superior Court. Rebekah R. Grfoson I I I I EXPOSITION BOULEVARD, DLDG 500, SACRAMENTO, CA 95815 T 916 (143 2200 F 916 641 4680 inwwyO}klau>co>p com p A i R F i r L D omen T70742I 1422 Rebekah Gibson From: Rebekah Gibson Sent: Thursday, September 03, 2009 11 45 AM To: 'Bryan L Malone' Subject: Huddleston - Motion to Compel Kathryn Hill Deposition Bryan, We are going to bring a motion to compel Ms Hill's deposition I have an ex parte hearing scheduled for next Tuesday, Sept 8th requesting that it be heard on shortened time I wanted to inquire whether you oppose having it heard on shortened time If you are agreeable to a shortened hearing schedule please let me know by the end of the day, along with dates that you are available for hearing and any requests in regards to the briefing schedule Sincerely, Rebekah R. Gibson i'£ihsoii(G N yorklaw corp.com 1 1 1 1 imposition BoiiIcA iml, Building 500 Sacramento, California 95815 Phone 1-916-643-2200 Fax 1-916-643-4680 httpV/www yorklawcoip.com ***** PLEASE NOTE ***** This E-Mail/telefax message and any documents accompanying this transmission may contain privileged and/or confidential information and is intended solely for the addressee (s) named above. If you are not the intended addressee/recipient, you are hereby notified that any use of, disclosure, copying, distribution, or reliance on the contents of this E-Mail/telefax information is strictly prohibited and may result in legal action against you. Please reply to the sender advising of the error in transmission and immediately delete/destroy the message and any accompanying documents 1 COURT: Sacramento County Superior Court CASE NO. 34-2008-00008404 2 CASE NAME: Huddleston v. St. Claire's Nursing Center, et al. PROOF OF SERVICE 4 I am a citizen of the United States, employed in the County of Sacramento, State of California. My business address is 1111 Exposition Boulevard, Building 500, Sacramento CA 95815. I am over the age of 18 years and not a party to the above-entitled action. I am readily familiar with York Law Corporation's practice for collection and processing of correspondence for mailing with the United States Postal Service. Pursuant to said practice, each document is placed in an envelope, the envelope is sealed, the appropriate postage is placed thereon and the sealed envelope is placed in the office mail receptacle. Each day's mail is collected and deposited in a U.S. mailbox at or before the close of each day's business. (CCP Section 1013a(3)orFed.R.Civ.P.5(a)and4 1;USDC(ED CA) L.R. 5-135(a)) 10 11 On September 4, 2009,1 caused the within, PLAINTIFF'S EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR PLAINTIFFS' MOTION TO COMPEL 12 DEPOSITION OF KATHRYN HILL AND MOTION FOR SANCTIONS ; POINT SAND AUTHORITIES; DECLARATION OF REBEKAH R. GIBSON IN SUPPORT THEREOF 13 AND EXH A, to be served via 14 v ^ FAXANDMAIL-- I personally sent to the addressee's telecopier number indicated below a true copy of the above-described document(s) before 5.00 p m I verified transmission without error by a transmission report issued by the facsimile machine upon which said transmission was made immediately following the transmission A true and correct copy of the said transmission report is attached hereto and incorporated heiem by this reference Thereafter, I placed a true copy in a sealed envelope with first class postage affixed and mailed as follows 18 Bryan L Malone, Esq. Prout & Levangie 19 2021 N Street Sacramento CA 95811 20 (916)443-4855 I declare that I am employed in the office of a member of the bar of this Court at whose 22 direction the service was made and that this Declaration is executed on September 4, 2009 a Sacramento, California I declare under penalty rt of perjury unyler the laws of the State of 23 California that the foregoing is true and conic 24 Eve KnighT 25 26 27 28 Proof Of Service- 1