Preview
1 ROBERT H. ZIMMERMAN, BAR NO. 84345
SCHUERING ZIMMERMAN & DOYLE, LLP 12/22/2020
2 400 University Avenue
Sacramento, California 95825-6502
3 (916) 567-0400
FAX: 568-0400
4
5 Attorneys for Defendant ENLOE MEDICAL CENTER
6
7
8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE
9
10 PATSY NEWTON, individually; HAROLD ) NO. 20CV01091
NEWTON, individually; SUZANNE )
11 BOLDEN, individually, ) Assigned to Judge Tamara L. Mosbarger
) for All Purposes
12 )
) DEFENDANT ENLOE MEDICAL CENTER
13 Plaintiffs, ) MEMORANDUM OF POINTS AND
) AUTHORITIES IN SUPPORT OF MOTION
14 vs. ) TO COMPEL DEPOSITION OF HEATHER
) DOMERESE
15 )
) Date: January 20, 2021
16 ENLOE MEDICAL CENTER; and DOES 1 - ) Time: 9:00 a.m.
50, et al., ) Dept: 1
17 )
) Complaint Filed: 5/29/2020
18 Defendants. ) Trial Date: 2/8/2021
______________________________________ )
19
20 Defendant ENLOE MEDICAL CENTER submits the following memorandum of points
21 and authorities in support of its motion to compel Heather Domerese’s compliance with
22 a deposition subpoena.
23 I.
24 INTRODUCTION
25 This is an elder abuse case filed by Patsy Newton, Harold Newton, and Suzanne
26 Bolden. Ms. Domerese is Ms. Newton’s granddaughter and Ms. Bolden’s daughter. She
27 was present for a good portion of Ms. Newton’s hospitalization and was identified as a
28 witness in plaintiffs’ responses to interrogatories.
01310411.WPD 1
DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO COMPEL DEPOSITION OF HEATHER DOMERESE
1 II.
2 STATEMENT OF FACTS
3 On August 14, 2020, Ms. Newton served her responses to defendant’s form
4 interrogatories identifying Ms. Domerese as a witness. (Exhibit 1, Declaration of Ian A.
5 Scharg (Scharg Decl.).) On October 23, 2020, plaintiffs’ counsel indicated he would accept
6 service of a deposition subpoena for Ms. Domerese. (Exhibit 2,Scharg Decl.) On October
7 26, 2020, defendant’s noticed the deposition of Ms. Domerese. (See Videoconference On-
8 the-Record Statement in re the Non-Appearance of Heather Domerese, Exhibit 3, Scharg
9 Decl., at Exhibit A to Deposition.) On November 16, 2020, defendant served an amended
10 notice for her deposition. (Exhibit 3 to Scharg Decl., at Exhibit B to Deposition.) On
11 November 25, 2020, defendant served a third amended notice of deposition for Ms.
12 Domerese. (Exhibit 3 to Scharg Decl., at Exhibit C to Deposition.)
13 During this time frame, plaintiffs’ counsel retained a process server to serve Ms.
14 Domerese with defendant’s deposition notices. These attempts were unsuccessful.
15 (Exhibit 3, to Scharg Decl., at Exhibit D to Deposition.) In addition to plaintiffs’ counsel’s
16 attempts, defendant’s also retained a private investigator to serve Ms. Domerese.
17 Defendant’s investigator even taped the deposition notice and subpoena to Ms.
18 Domerese’s door. These attempts were also unsuccessful and Ms. Domerese failed to
19 appear for her deposition. (Exhibit 3 to Scharg Decl., at Exhibit D to Deposition.)
20 On December 4, 2020, counsel placed a statement on the record with regard to Ms.
21 Domerese. During the statement, plaintiffs’ counsel indicated he intended to call her as
22 a witness at trial. (Exhibit 3, to Scharg Decl.)
23 ///
24 ///
25 ///
26 ///
27 ///
28 ///
01310411.WPD 2
DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO COMPEL DEPOSITION OF HEATHER DOMERESE
1 III.
2 ARGUMENT
3 A. The Court has Authority to Compel Compliance with a Deposition
Subpoena
4
5 Code of Civil Procedure section 1987.1 provides, in relevant part:
6 When a subpoena requires the . . . production of books,
documents or other things . . . or at the taking of a deposition,
7 the court, upon motion reasonably made by the party, the
witness, or any consumer described in Section 1985.3, or
8 upon the court’s own motion after giving counsel notice and
an opportunity to be heard, may make an order quashing the
9 subpoena entirely, modifying it, or directing compliance with
it upon such terms or conditions as the court shall declare,
10 including protective orders.
11 Accordingly, this Court has authority to compel a non-party to an action such as Ms.
12 Domerese, and to comply with a duly issued deposition subpoena. A motion to compel
13 compliance with a deposition subpoena served on a third patty must be filed within 60
14 days of the deponent’s objection or refusal to testify. (Unzipped Apparel, LLC v. Bader
15 (2007) 156 Cal.App.4th 123, 127, 134-136.) This motion was timely filed with a date of the
16 last amended deposition date being December 4, 2020 and is therefore timely. As
17 discussed below, this Court should order Ms. Domerese to testify.
18 B. The Court Should Compel Ms. Domerese’s Attendance at a Deposition
19 Under Code of Civil Procedure section 1987.1, "[i]f a subpoena requires ... the
20 production of books, documents, ...or other things before a court, ... the court, upon
21 motion reasonably made by [a party] ... may make an order ... directing compliance with
22 it upon those terms or conditions as the court shall declare." (Code Civ. Proc.
23 §1987.1(a),(b)(1).) The California Supreme Court held that discovery should be liberally
24 construed so as to uphold the right to discovery whenever possible. (See Emerson Electric
25 Co. v. Superior Court (1997) 16 Cal.4th 1101, 1107.)
26 Here, plaintiff identified Ms. Domerese as a witness to the events at issue in this
27 case. Defendant noticed her deposition on several occasions. Defendant initially served
28 plaintiffs’ counsel with the deposition subpoena as he indicated he would accept service
01310411.WPD 3
DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO COMPEL DEPOSITION OF HEATHER DOMERESE
1 on her behalf. However, Ms. Domerese did not cooperate with plaintiffs’ counsel. As a
2 result, both parties have made multiple attempts to serve Ms. Domerese with the
3 deposition subpoenas. However, she has continued to evade service and the only option
4 left is to compel her compliance with the deposition subpoena. Her testimony is critical
5 as she was physically present during the care at issue in this case. Therefore, defendant
6 requests that the Court grant this motion and compel Ms. Domerese’s attendance at a
7 deposition.
8 IV.
9 CONCLUSION
10 For the foregoing reasons, defendant respectfully requests, the Court grant this
11 motion and compel Ms. Domerese’s compliance with a deposition subpoena and appear
12 for her deposition.
13 Dated: December 21, 2020
14 SCHUERING ZIMMERMAN & DOYLE, LLP
15
16 By /s/ Ian A. Scharg
IAN A. SCHARG
17 Attorneys for Defendant ENLOE MEDICAL
CENTER
18
19
20
21
22
23
24
25
26
27
28
01310411.WPD 4
DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO COMPEL DEPOSITION OF HEATHER DOMERESE
1 Proof of Service by Electronic Transmission - Civil
2 [Code of Civ. Proc. §§ 1010.6, 1011, 1013, 1013a, 2015.5; Cal. Rules of Court, rules
3 10.503, 2.100-2.119, 2.251]
4 I, Lynette F. Esquivel, declare:
5 At the time of service, I was over 18 years of age and not a party to this action. My
6 business address is: 400 University Avenue, Sacramento, California 95825.
7 On December 21, 2020, I served the following documents:
8 DEFENDANT ENLOE MEDICAL CENTER MEMORANDUM OF POINTS AND
9 AUTHORITIES IN SUPPORT OF MOTION TO COMPEL DEPOSITION OF HEATHER
10 DOMERESE
11 By e-mail or electronic transmission: Based on a court order or an agreement of
12 the parties to accept service by e-mail or electronic transmission, I caused the documents
13 to be sent to the persons at the e-mail addresses listed below. I did not receive, within
14 a reasonable time after the transmission, any electronic message or other indication that
15 the transmission was unsuccessful.
16 Attorney Representing Phone/Fax/E-Mail
17 Sean R. Laird Plaintiffs PHONE: 916-441-1636
The Law Firm of Sean R. Laird FAX: 916-760-9002
18 805 16th Street EMAIL:
Sacramento, CA 95814 seanlairdlaw@gmail.com
19
20
I declare under penalty of perjury, under the laws of the State of California, that the
21
foregoing is true and correct, and that this declaration was executed on December 21,
22
2020, at Sacramento, California.
23
24
/s/ Lynette F. Esquivel
25 Lynette F. Esquivel
1579-12195
26
27
28
Preview
1 ROBERT H. ZIMMERMAN, BAR NO. 84345 SCHUERING ZIMMERMAN & DOYLE, LLP 12/22/2020 2 400 University Avenue Sacramento, California 95825-6502 3 (916) 567-0400 FAX: 568-0400 4 5 Attorneys for Defendant ENLOE MEDICAL CENTER 6 7 8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE 9 10 PATSY NEWTON, individually; HAROLD ) NO. 20CV01091 NEWTON, individually; SUZANNE ) 11 BOLDEN, individually, ) Assigned to Judge Tamara L. Mosbarger ) for All Purposes 12 ) ) DEFENDANT ENLOE MEDICAL CENTER 13 Plaintiffs, ) MEMORANDUM OF POINTS AND ) AUTHORITIES IN SUPPORT OF MOTION 14 vs. ) TO COMPEL DEPOSITION OF HEATHER ) DOMERESE 15 ) ) Date: January 20, 2021 16 ENLOE MEDICAL CENTER; and DOES 1 - ) Time: 9:00 a.m. 50, et al., ) Dept: 1 17 ) ) Complaint Filed: 5/29/2020 18 Defendants. ) Trial Date: 2/8/2021 ______________________________________ ) 19 20 Defendant ENLOE MEDICAL CENTER submits the following memorandum of points 21 and authorities in support of its motion to compel Heather Domerese’s compliance with 22 a deposition subpoena. 23 I. 24 INTRODUCTION 25 This is an elder abuse case filed by Patsy Newton, Harold Newton, and Suzanne 26 Bolden. Ms. Domerese is Ms. Newton’s granddaughter and Ms. Bolden’s daughter. She 27 was present for a good portion of Ms. Newton’s hospitalization and was identified as a 28 witness in plaintiffs’ responses to interrogatories. 01310411.WPD 1 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL DEPOSITION OF HEATHER DOMERESE 1 II. 2 STATEMENT OF FACTS 3 On August 14, 2020, Ms. Newton served her responses to defendant’s form 4 interrogatories identifying Ms. Domerese as a witness. (Exhibit 1, Declaration of Ian A. 5 Scharg (Scharg Decl.).) On October 23, 2020, plaintiffs’ counsel indicated he would accept 6 service of a deposition subpoena for Ms. Domerese. (Exhibit 2,Scharg Decl.) On October 7 26, 2020, defendant’s noticed the deposition of Ms. Domerese. (See Videoconference On- 8 the-Record Statement in re the Non-Appearance of Heather Domerese, Exhibit 3, Scharg 9 Decl., at Exhibit A to Deposition.) On November 16, 2020, defendant served an amended 10 notice for her deposition. (Exhibit 3 to Scharg Decl., at Exhibit B to Deposition.) On 11 November 25, 2020, defendant served a third amended notice of deposition for Ms. 12 Domerese. (Exhibit 3 to Scharg Decl., at Exhibit C to Deposition.) 13 During this time frame, plaintiffs’ counsel retained a process server to serve Ms. 14 Domerese with defendant’s deposition notices. These attempts were unsuccessful. 15 (Exhibit 3, to Scharg Decl., at Exhibit D to Deposition.) In addition to plaintiffs’ counsel’s 16 attempts, defendant’s also retained a private investigator to serve Ms. Domerese. 17 Defendant’s investigator even taped the deposition notice and subpoena to Ms. 18 Domerese’s door. These attempts were also unsuccessful and Ms. Domerese failed to 19 appear for her deposition. (Exhibit 3 to Scharg Decl., at Exhibit D to Deposition.) 20 On December 4, 2020, counsel placed a statement on the record with regard to Ms. 21 Domerese. During the statement, plaintiffs’ counsel indicated he intended to call her as 22 a witness at trial. (Exhibit 3, to Scharg Decl.) 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 01310411.WPD 2 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL DEPOSITION OF HEATHER DOMERESE 1 III. 2 ARGUMENT 3 A. The Court has Authority to Compel Compliance with a Deposition Subpoena 4 5 Code of Civil Procedure section 1987.1 provides, in relevant part: 6 When a subpoena requires the . . . production of books, documents or other things . . . or at the taking of a deposition, 7 the court, upon motion reasonably made by the party, the witness, or any consumer described in Section 1985.3, or 8 upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the 9 subpoena entirely, modifying it, or directing compliance with it upon such terms or conditions as the court shall declare, 10 including protective orders. 11 Accordingly, this Court has authority to compel a non-party to an action such as Ms. 12 Domerese, and to comply with a duly issued deposition subpoena. A motion to compel 13 compliance with a deposition subpoena served on a third patty must be filed within 60 14 days of the deponent’s objection or refusal to testify. (Unzipped Apparel, LLC v. Bader 15 (2007) 156 Cal.App.4th 123, 127, 134-136.) This motion was timely filed with a date of the 16 last amended deposition date being December 4, 2020 and is therefore timely. As 17 discussed below, this Court should order Ms. Domerese to testify. 18 B. The Court Should Compel Ms. Domerese’s Attendance at a Deposition 19 Under Code of Civil Procedure section 1987.1, "[i]f a subpoena requires ... the 20 production of books, documents, ...or other things before a court, ... the court, upon 21 motion reasonably made by [a party] ... may make an order ... directing compliance with 22 it upon those terms or conditions as the court shall declare." (Code Civ. Proc. 23 §1987.1(a),(b)(1).) The California Supreme Court held that discovery should be liberally 24 construed so as to uphold the right to discovery whenever possible. (See Emerson Electric 25 Co. v. Superior Court (1997) 16 Cal.4th 1101, 1107.) 26 Here, plaintiff identified Ms. Domerese as a witness to the events at issue in this 27 case. Defendant noticed her deposition on several occasions. Defendant initially served 28 plaintiffs’ counsel with the deposition subpoena as he indicated he would accept service 01310411.WPD 3 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL DEPOSITION OF HEATHER DOMERESE 1 on her behalf. However, Ms. Domerese did not cooperate with plaintiffs’ counsel. As a 2 result, both parties have made multiple attempts to serve Ms. Domerese with the 3 deposition subpoenas. However, she has continued to evade service and the only option 4 left is to compel her compliance with the deposition subpoena. Her testimony is critical 5 as she was physically present during the care at issue in this case. Therefore, defendant 6 requests that the Court grant this motion and compel Ms. Domerese’s attendance at a 7 deposition. 8 IV. 9 CONCLUSION 10 For the foregoing reasons, defendant respectfully requests, the Court grant this 11 motion and compel Ms. Domerese’s compliance with a deposition subpoena and appear 12 for her deposition. 13 Dated: December 21, 2020 14 SCHUERING ZIMMERMAN & DOYLE, LLP 15 16 By /s/ Ian A. Scharg IAN A. SCHARG 17 Attorneys for Defendant ENLOE MEDICAL CENTER 18 19 20 21 22 23 24 25 26 27 28 01310411.WPD 4 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL DEPOSITION OF HEATHER DOMERESE 1 Proof of Service by Electronic Transmission - Civil 2 [Code of Civ. Proc. §§ 1010.6, 1011, 1013, 1013a, 2015.5; Cal. Rules of Court, rules 3 10.503, 2.100-2.119, 2.251] 4 I, Lynette F. Esquivel, declare: 5 At the time of service, I was over 18 years of age and not a party to this action. My 6 business address is: 400 University Avenue, Sacramento, California 95825. 7 On December 21, 2020, I served the following documents: 8 DEFENDANT ENLOE MEDICAL CENTER MEMORANDUM OF POINTS AND 9 AUTHORITIES IN SUPPORT OF MOTION TO COMPEL DEPOSITION OF HEATHER 10 DOMERESE 11 By e-mail or electronic transmission: Based on a court order or an agreement of 12 the parties to accept service by e-mail or electronic transmission, I caused the documents 13 to be sent to the persons at the e-mail addresses listed below. I did not receive, within 14 a reasonable time after the transmission, any electronic message or other indication that 15 the transmission was unsuccessful. 16 Attorney Representing Phone/Fax/E-Mail 17 Sean R. Laird Plaintiffs PHONE: 916-441-1636 The Law Firm of Sean R. Laird FAX: 916-760-9002 18 805 16th Street EMAIL: Sacramento, CA 95814 seanlairdlaw@gmail.com 19 20 I declare under penalty of perjury, under the laws of the State of California, that the 21 foregoing is true and correct, and that this declaration was executed on December 21, 22 2020, at Sacramento, California. 23 24 /s/ Lynette F. Esquivel 25 Lynette F. Esquivel 1579-12195 26 27 28