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ELECTRONICALLY FILED
Superior Court of California
Mark T. Coffin, State Bar No. 168571 County of Santa Barbara
1 MARK T. COFFIN, P.C. Darrel E. Parker, Executive Officer
2 21 E. Carrillo Street, Suite 240 10/6/2020 4:46 PM
Santa Barbara, California 93101 By: Terri Chavez, Deputy
3 Telephone: (805) 248-7118
Facsimile: (866) 567-4028
4 Email: mtc@markcoffinlaw.com
5 Attorneys for Plaintiff DAVID G. BERTRAND and DOROTHY CHURCHILL-JOHNSON
6
7 SUPERIOR COURT OF CALIFORNIA
8 FOR THE COUNTY OF SANTA BARBARA
9
10 DAVID G. BERTRAND, an Individual, Case No. 19CV02429, Related with
DOROTHY CHURCHILL-JOHNSON, an Case No. 19CV02357
11 Individual,
NOTICE OF MOTION AND MOTION
12 Plaintiff, TO COMPEL RESPONSES TO
13 vs. SUPPLEMENTAL WRITTEN
DISCOVERY, AND MOTION TO
14 JESSICA BERRY, an Individual, and DOES 1 COMPEL DEPOSITION OF JESSICA
through 100, Inclusive, BERRY; MEMORANDUM OF POINTS
15 AND AUTHORITIES;
Defendants. DECLARATION; EXHIBITS;
16 REQUEST FOR SANCTIONS IN THE
17 AMOUNT OF $2,695.00
18 Date: November 9, 2020
Time: 10:00 a.m.
19 Dept: 5 (Via ZOOM Platform):
20 MEETING ID: 959 8605 7786
PASSWORD: 9863224
21
Assigned for all purposes to the
22 Hon. Colleen K. Sterne
23 Complaint Date: May 7, 2019
Trial Date: No Trial Date Set
24
25
26
27
28 1
NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO SUPPLEMENTAL WRITTEN DISCOVERY,
AND MOTION TO COMPEL DEPOSITION OF JESSICA BERRY; MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION; EXHIBITS; REQUEST FOR SANCTIONS
PLEASE TAKE NOTICE that on Navember 9, 2020, at 10:00 am. in Department 4 of
the Superior Court for the County of Santa Barbara, Anacapa Division. |100 Anacapa Stratt, Santa
Barbara, California, 93101. Plaintiff-“Appellant DAVID BERTRAND and PEainliET DURU’I'HY
CI—IURCHH_.l,—JOHNSON (collectively, “Moving Parties") will max-'6 the Court For an order
compelling DcfelldanURespondenl JESSICA BERRY In pmvidc responses to Supplemental
lnlermgatorics pursuant to Code ofCiw'f Procedure 2030.290 and 203 l .060,
393$ and responses to
Supplemental Request for Production ol‘Documents, propnundcd in each of the two above—captioned
related cascs (Case No. 19CV02429 and 19CV02357’).
Moving Parlies will also move the Court for an Order that JESSICA BERRY appear for
m dcposition pursuant to Code Qf'Ciw'f Procedure 2025450 on
‘55" a date certain, after she products
11 responses to the supplemental discovery.
I2 Moving Parties request sanctions in the amount of' $2,695.00 for the reasonable cost of
13 bringing this Mntinn pursuant to Code QfCt'vH Procedure 592030.300, er seq.
14 The Motion wil] be heard remotely via the Loom piatform, as follows:
15
15 MEETING "1:959 8605 7786
PASSWORD: 9863224
IS
19 This motion is based upon the accompanying Memorandum of Points and Aulhtiriliesa, thr:
20 declaration of counsel, the exhibits attached to this Motion, all pleadings and papers on file herein,
and upon all olher evidence and argument produced as of the hearing on the motion.
DATED: October 6. 2020 MARK T. COFFTN, PC.
Bv:
' ..
MM. Cofim
Attorneys for Plaintiffs DAVID G. BERTRAND
and DOROTHY CIIURCTITI..I ,-JOHNSON
2
NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO SUPPLEMENI‘AL WRITTEN DISCOVERY,
AND MOTION TO COMPEL DEPOSITION OF JESSICA BERRY; MEMORANDUM OF POINTS (\NU
AU'I'HDRL‘I'IES; DECLARATION; EXHIBITS; RI-L‘fJfLIIjEi'I~ FOR SANCTIONS
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 The two above-captioned lawsuits both involve Defendant/Respondent JESSICA BERRY.
4 Moving Parties request an Order compelling Ms. BERRY to provide responses without objection to
5 supplemental interrogatories and document requests, which are now overdue in both cases.
6 Secondly, Moving Parties request an Order compelling Ms. BERRY to appear for a deposition, two
7 weeks after producing the supplemental responses.
8
9 II. FACTUAL AND PROCEDURAL BACKGROUND
10 A. “Labor Commission Action”: SBSC Case number 19CV02357, titled David Bertrand v.
11 Jessica Berry, is DAVID BERTRAND’s appeal de novo of a Labor Commission wage and
12 hour decision.
13 B. “Defamation Action”: SBSC Case number 19CV02429, titled David Bertrand and Dorothy
14 Churchill-Johnson v. Jessica Berry, is an action for libel, defamation per se, intrusion,
15 intentional infliction of emotional distress, unfair business practices, elder abuse, quantum
16 meruit, and unjust enrichment/restitution, brought Plaintiffs DAVID BERTRAND and
17 DOROTHY CHURCHILL-JOHNSON against Ms. BERRY.
18
19 Ms. BERRY has been consistently uncooperative with the discovery process in both cases.
20 In the Defamation Action, following the Court’s Order allowing service by publication, the Court
21 entered Ms. BERRY’S default, and later allowed her to file an answer after she appeared at the first
22 Case Management Conference. In November of 2019, Moving Parties filed a Motion to Deem
23 Matters Admitted, following Ms. BERRY’s failure to respond to written discovery. Prior to the
24 hearing on the Motion, Ms. BERRY filed a response to the RFAs, but was ordered to pay sanctions
25 pursuant to Code of Civil Procedure section 2033.280(c).
26 In the Labor Commission Action, Ms. BERRY initially failed to timely respond to written
27 discovery. In July of 2019 she obtained counsel for the Labor Commission Action. After protracted
3
28 NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO SUPPLEMENTAL WRITTEN DISCOVERY,
AND MOTION TO COMPEL DEPOSITION OF JESSICA BERRY; MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION; EXHIBITS; REQUEST FOR SANCTIONS
1 meet and confer efforts, Moving Party DAVID BERTRAND filed a motion to compel discovery in
2 November of 2019. Also, in November, Ms. BERRY’s attorney Jan Kaestner filed a motion to
3 withdraw as her counsel. In December 2019, the Court granted the motion to compel. Mr. Kaestner
4 withdrew his motion to be relieved as counsel.
5 Now once again, Ms. BERRY has failed to respond to the written discovery which is the
6 subject of this Motion, namely Supplemental Request for Production of Documents (Exhibit A) and
7 Supplemental Interrogatories (Exhibit B) propounded in the Defamation Action, and Supplemental
8 Request for Production of Documents (Exhibit C) and Supplemental Interrogatories (Exhibit D)
9 propounded in the Labor Commission Action.
10 Furthermore, Ms. BERRY failed to appear at her deposition, which was properly noticed for
11 September 17, 2020. Moving Parties took a certificate of non-appearance at the deposition. In spite
12 of multiple meet and confer attempts to select an acceptable date for the deposition (both before and
13 after September 17th), Ms. BERRY has repeatedly refused to agree a date for her deposition, instead
14 using a variety of evasive tactics. When she finally did provide dates through her attorney, she did
15 so without first responding to the supplemental written discovery.
16
17 III. LEGAL STANDARD
18 If a party responding to a request for production of documents provides unsatisfactory
19 responses that contain objections or an agreement to comply that is incomplete, the propounding
20 party may move to compel further responses. (Code of Civil Procedure § 2031.310.) A party
21 seeking discovery may move for an order compelling responses to interrogatories when an answer to
22 a particular interrogatory is evasive or incomplete. (Code of Civil Procedure § 2030.300.) the
23 motion shall be accompanied by a meet and confer declaration under Section 2016.040. (Id., at
24 2030.300(b).)
25 As stated, Ms. BERRY’s responses to Supplemental Interrogatories and Supplemental
26 Requests for Production were propounded in both the Labor Commission Action and the Defamation
27 Action. (See Exhibits A-D; Declaration of M. Coffin, par. 9-12.) No responses have been received,
4
28 NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO SUPPLEMENTAL WRITTEN DISCOVERY,
AND MOTION TO COMPEL DEPOSITION OF JESSICA BERRY; MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION; EXHIBITS; REQUEST FOR SANCTIONS
1 and they are long overdue. Furthermore, they are a necessary prerequisite to taking Ms. BERRY’S
2 deposition.
3
4 IV. APPELLANT HAS ATTEMPTED TO MEET AND CONFER WITH RESPONDENT
5 A motion to compel further responses must be accompanied by a declaration showing “a
6 reasonable and good faith attempt” to resolve the issues outside of court. (Code of Civil Procedure
7 §§ 2016.040, 2031.310(b)(2).) Here, Moving Party’s counsel has attempted to meet and confer with
8 Respondent BERRY’s counsel in the Labor Commission Action, and directly with Ms. BERRY in
9 the Defamation Action, regarding the lack of timely responses to the Supplemental written
10 discovery, and with regard to Ms. BERRY’S deposition. (See Exhibits G and H; Declaration of M.
11 Coffin, par. 15-51.) Although her attorney has indicated more than once that responses to the
12 written discovery would be forthcoming, Ms. BERRY has not produced them in either case. (Id.)
13 Furthermore, Moving Parties have explained several times that the written responses are a
14 necessary prerequisite to Ms. BERRY’S DEPOSITION. Although her deposition has already been
15 properly noticed, she failed to appear at the deposition (although her counsel did), and a certificate of
16 non-appearance was taken on the record. (Exhibit E & F; Declaration of M. Coffin, par. 15-51.)
17 The deposition notice was initially served on July 30, 2020, over five weeks before the
18 scheduled date of September 9, 2020. (Exhibit E.) However, Ms. BERRY has employed several
19 evasive tactics to avoid her deposition. First, she claimed that she intended to terminate her counsel,
20 Mr. Kaestner, and that he ‘no longer represented her.’ (See e.g., Declaration of M. Coffin, par. 16-
21 30.) Both Ms. Berry and her attorney Mr. Kaestner were requested to respond promptly if the
22 noticed date was inconvenient for any reason, but if so, to provide new date(s) when she was
23 available for deposition. (Id., at par. 30.) Then, Ms. BERRY unreasonably demanded that she be
24 provided with copies of all prior written discovery and responses previously served by all parties in
25 both cases. (Id., at par. 16, 20, et seq.) Although she never provided a reason for this unusual
26 request, it was apparently motivated by the fact that she “did not trust” her own counsel. (Id.) Mr.
27 Kaestner indicated several times that he could not communicate with his client, and intimated that he
5
28 NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO SUPPLEMENTAL WRITTEN DISCOVERY,
AND MOTION TO COMPEL DEPOSITION OF JESSICA BERRY; MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION; EXHIBITS; REQUEST FOR SANCTIONS
1 could not control her. (Id., at par. 24, 28, 29, 34, et seq.) Nevertheless, he did not file a motion to
2 withdraw as counsel.
3 At Mr. Kaestner’s request, Ms. BERRY’s deposition date was re-noticed September 17th.
4 (Declaration of M. Coffin, par. 42.) In the week prior, she intimated that she was “unwell” and
5 therefore unable to appear for her deposition. (Id., par. 44.) However, she continued to ignore
6 requests for a new date when she would appear for deposition. (Id.) On the 17th, Mr. Kaestner
7 appeared for the deposition, but Ms. BERRY did not. (Id., par. 46.) Even after the 17th, Moving
8 Parties endeavored to have Ms. BERRY commit to a date certain for both the written responses and
9 her deposition date – in that sequence. (Id., par. 50.) However, Ms. BERRY has not agreed to any
10 dates, in spite of the threat of this Motion. (Id., par. 50-52.)
11 All of this is pure gamesmanship on Ms. BERRY’S part, designed to evade providing written
12 responses under oath (and presumably thereby to surprise Moving Parties with new evidence at
13 trial), and/or to allow Ms. BERRY to avoid providing deposition testimony under oath as to all facts,
14 evidence, and argument that she intends to make at trial. Ms. BERRY’S conduct is an abuse of the
15 discovery process. Despite multiple opportunities to avoid this Motion, she has brought it entirely
16 upon herself.
17
18 V. MONETARY SANCTIONS ARE APPROPRIATE
19 Monetary sanctions are appropriate here. “[T]he court shall impose a monetary sanction
20 under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who
21 unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it
22 finds that the one subject to the sanction acted with substantial justification or that other
23 circumstances make the imposition of the sanction unjust.” (Code of Civil Procedure §
24 2030.300(d).)
25 As evidence by the Declaration of counsel Mark Coffin, Moving Parties have expended
26 $2,695.00 in legal fees in the research, preparation, and presentation of this motion to compel.
27 Moving Parties request that the Court Order sanctions reimbursing their incurred fees in that amount.
6
28 NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO SUPPLEMENTAL WRITTEN DISCOVERY,
AND MOTION TO COMPEL DEPOSITION OF JESSICA BERRY; MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION; EXHIBITS; REQUEST FOR SANCTIONS
VI. CONCLUSION
For the foregoing reasons, Appcllam respectfully requests ihar the Court grant this Motion to
Compcl and Order DcfcndanL‘Respunda JESSICA BERRY to provide full and complete responses,
withnul Objection, along with responsive decumcnts, to the Supplemenlm Request for Production of
Documents, and Supplemental lntenogatories propounded in both the Dcfamatinn Action and the
Labor (Tnmmissiun Action, which are the subject of this Motion. Moving, Parties also request that
the Court Order DcfcndanL’Rcspundent JESSICA BERRY to submit To a deposition on a date
Cflfiaine WhiCh is:proximalely two weeks after her supplemental rcsponscs are served. Moving
Parties; furthermore request an Order that Ms. BERRY reimburse $2,695.00 in sanctions for the cost
IU of this Motion.
11 Respectfully submitted,
12 DATED: October 6, 2020 MARK T. CUI’HN, RC.
14
15
'
mcfi‘a
Attorneys for Plaintiffs DAVID (E. BER'I‘RAND
and DOROTHY CIILTRCIIILL-JOIWSON
16
1?
13
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21
22
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7"
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23 NOTICE OF MOTION AND MOTION TO COMPEL. RLSPONSES 'I‘O SUPPLEMENTAL WRITTEN DISCOVERY,
AND MOTION TO COMPEL DEPOSITION OF JESSICA BERRY; MEMORANDUM DI: POINTS AND
AUTHORITIES; DECLARATION; EXHIBITS; REQUEST FOR SANCTIONS
PROOF OF SERVICE
STATF. OF CALIFORNIA, COUNTY OF SANTA BARBARA
I am employed in the County of Santa Barbara. State of Califl'amia. I am m-er the age of 18
years and not a party to this action. My business address is 21 Carrflln
F... Street, Suite 240, Santa
Barbara, California 93101. On October 6, 2020, I Starved the lbregoing documents described as
NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO SUPPLEMENTAL
WRITTEN DISCOVERY. AND MOTION TO COMPEL DEPOSITION [1F JESSICA
BERRY; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION;
EXHIBITS, on the interested pariies in this: action:
Address
____
Jessica
Pl}.
c’
Box 541
...___._
Jessica Be
PO. Rm: 4;: JESSICH BERRK
_
Party
m pm per
.
(Defamation).
i
Santa Ynez, CA 93460 Solvang, CA 93464
i
I
.Jan Kaestner, Esq. Anomayflw Respondent JESSICA BERRY !
GHITTERMAN, GIIITTERMAN & FELD
418 E. Canon Perdido St. (EC Amati?)-
Santa Barlasu'ra5 CA 931m
B: janfilghitlcnnancnm
m BV U.S. MAIL: This document was served by United States maif through the US Postal
Service, I enclosed the ducumcut in e1 sealed envelope or package addressed to the pcrson(s)
at the address(cs) above and placed the envelopelfis) for collection and mailing, following our
ordinaq business practices. I am readily familiar with this fimfs practice of cullecting and
17" processing correspondence for mailing. On the same day that correspondence is placed for
collection and mailing, it is deposited in the ordinary course of business with the United
13 States Postal Service at Santa Barbara, California, in a scaled envelope with postage fully
paid.
19
20 x VIA EMAIL: } .9c ed the documents
addresses as listed on thc attached service
above
llst
on all parties
following my
\iaelcctmnic mail
employer
to the
3 business: practice for
collection and processing of correspondence. Such electronic transmission was reported as
21 complete and without error on this data.
IE (State) Ideclare undcr penalty of pmjury under the laws nf‘ the State ot‘Califnmia that the
foregoing is true and correct.
Executed on October 6, 2020, at Santa Barbara, California.
X02574
Scott-KT Iaake
L40
3
NO'I'ICE OI: MOTION AND MOTION TO COMPEL RESPONSES TO SUPPLEMENTAL WRITTEN DISCOVERY,
AND MO'l'lON T0 COMPEL DEPOSITION OF JESSICA BERRY; MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION; EXHIBITS: REQUEST FOR SANCTIONS
Preview
ELECTRONICALLY FILED Superior Court of California Mark T. Coffin, State Bar No. 168571 County of Santa Barbara 1 MARK T. COFFIN, P.C. Darrel E. Parker, Executive Officer 2 21 E. Carrillo Street, Suite 240 10/6/2020 4:46 PM Santa Barbara, California 93101 By: Terri Chavez, Deputy 3 Telephone: (805) 248-7118 Facsimile: (866) 567-4028 4 Email: mtc@markcoffinlaw.com 5 Attorneys for Plaintiff DAVID G. BERTRAND and DOROTHY CHURCHILL-JOHNSON 6 7 SUPERIOR COURT OF CALIFORNIA 8 FOR THE COUNTY OF SANTA BARBARA 9 10 DAVID G. BERTRAND, an Individual, Case No. 19CV02429, Related with DOROTHY CHURCHILL-JOHNSON, an Case No. 19CV02357 11 Individual, NOTICE OF MOTION AND MOTION 12 Plaintiff, TO COMPEL RESPONSES TO 13 vs. SUPPLEMENTAL WRITTEN DISCOVERY, AND MOTION TO 14 JESSICA BERRY, an Individual, and DOES 1 COMPEL DEPOSITION OF JESSICA through 100, Inclusive, BERRY; MEMORANDUM OF POINTS 15 AND AUTHORITIES; Defendants. DECLARATION; EXHIBITS; 16 REQUEST FOR SANCTIONS IN THE 17 AMOUNT OF $2,695.00 18 Date: November 9, 2020 Time: 10:00 a.m. 19 Dept: 5 (Via ZOOM Platform): 20 MEETING ID: 959 8605 7786 PASSWORD: 9863224 21 Assigned for all purposes to the 22 Hon. Colleen K. Sterne 23 Complaint Date: May 7, 2019 Trial Date: No Trial Date Set 24 25 26 27 28 1 NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO SUPPLEMENTAL WRITTEN DISCOVERY, AND MOTION TO COMPEL DEPOSITION OF JESSICA BERRY; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION; EXHIBITS; REQUEST FOR SANCTIONS PLEASE TAKE NOTICE that on Navember 9, 2020, at 10:00 am. in Department 4 of the Superior Court for the County of Santa Barbara, Anacapa Division. |100 Anacapa Stratt, Santa Barbara, California, 93101. Plaintiff-“Appellant DAVID BERTRAND and PEainliET DURU’I'HY CI—IURCHH_.l,—JOHNSON (collectively, “Moving Parties") will max-'6 the Court For an order compelling DcfelldanURespondenl JESSICA BERRY In pmvidc responses to Supplemental lnlermgatorics pursuant to Code ofCiw'f Procedure 2030.290 and 203 l .060, 393$ and responses to Supplemental Request for Production ol‘Documents, propnundcd in each of the two above—captioned related cascs (Case No. 19CV02429 and 19CV02357’). Moving Parlies will also move the Court for an Order that JESSICA BERRY appear for m dcposition pursuant to Code Qf'Ciw'f Procedure 2025450 on ‘55" a date certain, after she products 11 responses to the supplemental discovery. I2 Moving Parties request sanctions in the amount of' $2,695.00 for the reasonable cost of 13 bringing this Mntinn pursuant to Code QfCt'vH Procedure 592030.300, er seq. 14 The Motion wil] be heard remotely via the Loom piatform, as follows: 15 15 MEETING "1:959 8605 7786 PASSWORD: 9863224 IS 19 This motion is based upon the accompanying Memorandum of Points and Aulhtiriliesa, thr: 20 declaration of counsel, the exhibits attached to this Motion, all pleadings and papers on file herein, and upon all olher evidence and argument produced as of the hearing on the motion. DATED: October 6. 2020 MARK T. COFFTN, PC. Bv: ' .. MM. Cofim Attorneys for Plaintiffs DAVID G. BERTRAND and DOROTHY CIIURCTITI..I ,-JOHNSON 2 NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO SUPPLEMENI‘AL WRITTEN DISCOVERY, AND MOTION TO COMPEL DEPOSITION OF JESSICA BERRY; MEMORANDUM OF POINTS (\NU AU'I'HDRL‘I'IES; DECLARATION; EXHIBITS; RI-L‘fJfLIIjEi'I~ FOR SANCTIONS 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 The two above-captioned lawsuits both involve Defendant/Respondent JESSICA BERRY. 4 Moving Parties request an Order compelling Ms. BERRY to provide responses without objection to 5 supplemental interrogatories and document requests, which are now overdue in both cases. 6 Secondly, Moving Parties request an Order compelling Ms. BERRY to appear for a deposition, two 7 weeks after producing the supplemental responses. 8 9 II. FACTUAL AND PROCEDURAL BACKGROUND 10 A. “Labor Commission Action”: SBSC Case number 19CV02357, titled David Bertrand v. 11 Jessica Berry, is DAVID BERTRAND’s appeal de novo of a Labor Commission wage and 12 hour decision. 13 B. “Defamation Action”: SBSC Case number 19CV02429, titled David Bertrand and Dorothy 14 Churchill-Johnson v. Jessica Berry, is an action for libel, defamation per se, intrusion, 15 intentional infliction of emotional distress, unfair business practices, elder abuse, quantum 16 meruit, and unjust enrichment/restitution, brought Plaintiffs DAVID BERTRAND and 17 DOROTHY CHURCHILL-JOHNSON against Ms. BERRY. 18 19 Ms. BERRY has been consistently uncooperative with the discovery process in both cases. 20 In the Defamation Action, following the Court’s Order allowing service by publication, the Court 21 entered Ms. BERRY’S default, and later allowed her to file an answer after she appeared at the first 22 Case Management Conference. In November of 2019, Moving Parties filed a Motion to Deem 23 Matters Admitted, following Ms. BERRY’s failure to respond to written discovery. Prior to the 24 hearing on the Motion, Ms. BERRY filed a response to the RFAs, but was ordered to pay sanctions 25 pursuant to Code of Civil Procedure section 2033.280(c). 26 In the Labor Commission Action, Ms. BERRY initially failed to timely respond to written 27 discovery. In July of 2019 she obtained counsel for the Labor Commission Action. After protracted 3 28 NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO SUPPLEMENTAL WRITTEN DISCOVERY, AND MOTION TO COMPEL DEPOSITION OF JESSICA BERRY; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION; EXHIBITS; REQUEST FOR SANCTIONS 1 meet and confer efforts, Moving Party DAVID BERTRAND filed a motion to compel discovery in 2 November of 2019. Also, in November, Ms. BERRY’s attorney Jan Kaestner filed a motion to 3 withdraw as her counsel. In December 2019, the Court granted the motion to compel. Mr. Kaestner 4 withdrew his motion to be relieved as counsel. 5 Now once again, Ms. BERRY has failed to respond to the written discovery which is the 6 subject of this Motion, namely Supplemental Request for Production of Documents (Exhibit A) and 7 Supplemental Interrogatories (Exhibit B) propounded in the Defamation Action, and Supplemental 8 Request for Production of Documents (Exhibit C) and Supplemental Interrogatories (Exhibit D) 9 propounded in the Labor Commission Action. 10 Furthermore, Ms. BERRY failed to appear at her deposition, which was properly noticed for 11 September 17, 2020. Moving Parties took a certificate of non-appearance at the deposition. In spite 12 of multiple meet and confer attempts to select an acceptable date for the deposition (both before and 13 after September 17th), Ms. BERRY has repeatedly refused to agree a date for her deposition, instead 14 using a variety of evasive tactics. When she finally did provide dates through her attorney, she did 15 so without first responding to the supplemental written discovery. 16 17 III. LEGAL STANDARD 18 If a party responding to a request for production of documents provides unsatisfactory 19 responses that contain objections or an agreement to comply that is incomplete, the propounding 20 party may move to compel further responses. (Code of Civil Procedure § 2031.310.) A party 21 seeking discovery may move for an order compelling responses to interrogatories when an answer to 22 a particular interrogatory is evasive or incomplete. (Code of Civil Procedure § 2030.300.) the 23 motion shall be accompanied by a meet and confer declaration under Section 2016.040. (Id., at 24 2030.300(b).) 25 As stated, Ms. BERRY’s responses to Supplemental Interrogatories and Supplemental 26 Requests for Production were propounded in both the Labor Commission Action and the Defamation 27 Action. (See Exhibits A-D; Declaration of M. Coffin, par. 9-12.) No responses have been received, 4 28 NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO SUPPLEMENTAL WRITTEN DISCOVERY, AND MOTION TO COMPEL DEPOSITION OF JESSICA BERRY; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION; EXHIBITS; REQUEST FOR SANCTIONS 1 and they are long overdue. Furthermore, they are a necessary prerequisite to taking Ms. BERRY’S 2 deposition. 3 4 IV. APPELLANT HAS ATTEMPTED TO MEET AND CONFER WITH RESPONDENT 5 A motion to compel further responses must be accompanied by a declaration showing “a 6 reasonable and good faith attempt” to resolve the issues outside of court. (Code of Civil Procedure 7 §§ 2016.040, 2031.310(b)(2).) Here, Moving Party’s counsel has attempted to meet and confer with 8 Respondent BERRY’s counsel in the Labor Commission Action, and directly with Ms. BERRY in 9 the Defamation Action, regarding the lack of timely responses to the Supplemental written 10 discovery, and with regard to Ms. BERRY’S deposition. (See Exhibits G and H; Declaration of M. 11 Coffin, par. 15-51.) Although her attorney has indicated more than once that responses to the 12 written discovery would be forthcoming, Ms. BERRY has not produced them in either case. (Id.) 13 Furthermore, Moving Parties have explained several times that the written responses are a 14 necessary prerequisite to Ms. BERRY’S DEPOSITION. Although her deposition has already been 15 properly noticed, she failed to appear at the deposition (although her counsel did), and a certificate of 16 non-appearance was taken on the record. (Exhibit E & F; Declaration of M. Coffin, par. 15-51.) 17 The deposition notice was initially served on July 30, 2020, over five weeks before the 18 scheduled date of September 9, 2020. (Exhibit E.) However, Ms. BERRY has employed several 19 evasive tactics to avoid her deposition. First, she claimed that she intended to terminate her counsel, 20 Mr. Kaestner, and that he ‘no longer represented her.’ (See e.g., Declaration of M. Coffin, par. 16- 21 30.) Both Ms. Berry and her attorney Mr. Kaestner were requested to respond promptly if the 22 noticed date was inconvenient for any reason, but if so, to provide new date(s) when she was 23 available for deposition. (Id., at par. 30.) Then, Ms. BERRY unreasonably demanded that she be 24 provided with copies of all prior written discovery and responses previously served by all parties in 25 both cases. (Id., at par. 16, 20, et seq.) Although she never provided a reason for this unusual 26 request, it was apparently motivated by the fact that she “did not trust” her own counsel. (Id.) Mr. 27 Kaestner indicated several times that he could not communicate with his client, and intimated that he 5 28 NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO SUPPLEMENTAL WRITTEN DISCOVERY, AND MOTION TO COMPEL DEPOSITION OF JESSICA BERRY; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION; EXHIBITS; REQUEST FOR SANCTIONS 1 could not control her. (Id., at par. 24, 28, 29, 34, et seq.) Nevertheless, he did not file a motion to 2 withdraw as counsel. 3 At Mr. Kaestner’s request, Ms. BERRY’s deposition date was re-noticed September 17th. 4 (Declaration of M. Coffin, par. 42.) In the week prior, she intimated that she was “unwell” and 5 therefore unable to appear for her deposition. (Id., par. 44.) However, she continued to ignore 6 requests for a new date when she would appear for deposition. (Id.) On the 17th, Mr. Kaestner 7 appeared for the deposition, but Ms. BERRY did not. (Id., par. 46.) Even after the 17th, Moving 8 Parties endeavored to have Ms. BERRY commit to a date certain for both the written responses and 9 her deposition date – in that sequence. (Id., par. 50.) However, Ms. BERRY has not agreed to any 10 dates, in spite of the threat of this Motion. (Id., par. 50-52.) 11 All of this is pure gamesmanship on Ms. BERRY’S part, designed to evade providing written 12 responses under oath (and presumably thereby to surprise Moving Parties with new evidence at 13 trial), and/or to allow Ms. BERRY to avoid providing deposition testimony under oath as to all facts, 14 evidence, and argument that she intends to make at trial. Ms. BERRY’S conduct is an abuse of the 15 discovery process. Despite multiple opportunities to avoid this Motion, she has brought it entirely 16 upon herself. 17 18 V. MONETARY SANCTIONS ARE APPROPRIATE 19 Monetary sanctions are appropriate here. “[T]he court shall impose a monetary sanction 20 under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who 21 unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it 22 finds that the one subject to the sanction acted with substantial justification or that other 23 circumstances make the imposition of the sanction unjust.” (Code of Civil Procedure § 24 2030.300(d).) 25 As evidence by the Declaration of counsel Mark Coffin, Moving Parties have expended 26 $2,695.00 in legal fees in the research, preparation, and presentation of this motion to compel. 27 Moving Parties request that the Court Order sanctions reimbursing their incurred fees in that amount. 6 28 NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO SUPPLEMENTAL WRITTEN DISCOVERY, AND MOTION TO COMPEL DEPOSITION OF JESSICA BERRY; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION; EXHIBITS; REQUEST FOR SANCTIONS VI. CONCLUSION For the foregoing reasons, Appcllam respectfully requests ihar the Court grant this Motion to Compcl and Order DcfcndanL‘Respunda JESSICA BERRY to provide full and complete responses, withnul Objection, along with responsive decumcnts, to the Supplemenlm Request for Production of Documents, and Supplemental lntenogatories propounded in both the Dcfamatinn Action and the Labor (Tnmmissiun Action, which are the subject of this Motion. Moving, Parties also request that the Court Order DcfcndanL’Rcspundent JESSICA BERRY to submit To a deposition on a date Cflfiaine WhiCh is:proximalely two weeks after her supplemental rcsponscs are served. Moving Parties; furthermore request an Order that Ms. BERRY reimburse $2,695.00 in sanctions for the cost IU of this Motion. 11 Respectfully submitted, 12 DATED: October 6, 2020 MARK T. CUI’HN, RC. 14 15 ' mcfi‘a Attorneys for Plaintiffs DAVID (E. BER'I‘RAND and DOROTHY CIILTRCIIILL-JOIWSON 16 1? 13 I9 20 21 22 23 24 25 26 27 7" _ 23 NOTICE OF MOTION AND MOTION TO COMPEL. RLSPONSES 'I‘O SUPPLEMENTAL WRITTEN DISCOVERY, AND MOTION TO COMPEL DEPOSITION OF JESSICA BERRY; MEMORANDUM DI: POINTS AND AUTHORITIES; DECLARATION; EXHIBITS; REQUEST FOR SANCTIONS PROOF OF SERVICE STATF. OF CALIFORNIA, COUNTY OF SANTA BARBARA I am employed in the County of Santa Barbara. State of Califl'amia. I am m-er the age of 18 years and not a party to this action. My business address is 21 Carrflln F... Street, Suite 240, Santa Barbara, California 93101. On October 6, 2020, I Starved the lbregoing documents described as NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO SUPPLEMENTAL WRITTEN DISCOVERY. AND MOTION TO COMPEL DEPOSITION [1F JESSICA BERRY; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION; EXHIBITS, on the interested pariies in this: action: Address ____ Jessica Pl}. c’ Box 541 ...___._ Jessica Be PO. Rm: 4;: JESSICH BERRK _ Party m pm per . (Defamation). i Santa Ynez, CA 93460 Solvang, CA 93464 i I .Jan Kaestner, Esq. Anomayflw Respondent JESSICA BERRY ! GHITTERMAN, GIIITTERMAN & FELD 418 E. Canon Perdido St. (EC Amati?)- Santa Barlasu'ra5 CA 931m B: janfilghitlcnnancnm m BV U.S. MAIL: This document was served by United States maif through the US Postal Service, I enclosed the ducumcut in e1 sealed envelope or package addressed to the pcrson(s) at the address(cs) above and placed the envelopelfis) for collection and mailing, following our ordinaq business practices. I am readily familiar with this fimfs practice of cullecting and 17" processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United 13 States Postal Service at Santa Barbara, California, in a scaled envelope with postage fully paid. 19 20 x VIA EMAIL: } .9c ed the documents addresses as listed on thc attached service above llst on all parties following my \iaelcctmnic mail employer to the 3 business: practice for collection and processing of correspondence. Such electronic transmission was reported as 21 complete and without error on this data. IE (State) Ideclare undcr penalty of pmjury under the laws nf‘ the State ot‘Califnmia that the foregoing is true and correct. Executed on October 6, 2020, at Santa Barbara, California. X02574 Scott-KT Iaake L40 3 NO'I'ICE OI: MOTION AND MOTION TO COMPEL RESPONSES TO SUPPLEMENTAL WRITTEN DISCOVERY, AND MO'l'lON T0 COMPEL DEPOSITION OF JESSICA BERRY; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION; EXHIBITS: REQUEST FOR SANCTIONS