Preview
ELECTRONICALLY FILED
Superior Court of California
County of Santa Barbara
Mark T. Coffin, State Bar No. 168571
Darrel E. Parker, Executive Officer
Scott A. Jaske, State Bar No. PL-461842 2/1/2021 2:18 PM
MARK T. COFFIN, P.C. By: Terri Chavez, Deputy
21 E. Carrillo Street, Suite 240
Santa Barbara, California 93101
Telephone: (805) 248-7118
Facsimile: (866) 567-4028
Email: mtc@markcoffinlaw.com
Email: scott@markcoffinlaw.com
Attorneys for Plaintiffs DAVID G. BERTRAND and DOROTHY CHURCHILL-JOHNSON
SUPERIOR COURT OF CALIFORNIA
FOR THE COUNTY OF SANTA BARBARA
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11 DAVID G. BERTRAND, an Individual, Case No. 19CV02429
DOROTHY CHURCHILL-JOHNSON, an
12 Individual, NOTICE OF MOTION AND EX
PARTE APPLICATION FOR
13 Plaintiff, SANCTIONS AGAINST DEFENDANT
14 JESSICA BERRY FOR FAILURE TO
VS.
COMPLY WITH COURT ORDER;
15 JESSICA BERRY, an Individual, and DOES 1 DECLARATION; EXHIBITS
through 100, Inclusive,
16 DATE: Wednesday, February 3, 2021
Defendants. TIME: 8:30 a.m.
17 DEPT: Five
18 ZOOM ID: 959 8605 7786
Password: 2364587
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Assigned for all purposes to the
20 Hon. Colleen K. Sterne
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NOTICE OF MOTION AND EX PARTE APPLICATION FOR SANCTIONS AGAINST DEFENDANT JESSICA.
BERRY FOR FAILURE TO COMPLY WITH COURT ORDER; DECLARATION; EXHIBITS
PLEASE TAKE NOTICE that at 8:30 a.m, on Wednesday, February 3, 2021, or as soon
thereafter as the matter may be heard in Department 5 of the above-entitled Court, located at 1100
Anacapa Street, Santa Barbara, CA 93101, Plaintiffs will move this Court for an Order for sanctions
against Defendant JESSICA BERRY for failure to comply with Court Order.
This Ex Parte Application is based on upon Code of Civil Procedure §§ 2030.290(c) and
2031.300(c), and upon the moving party’s affirmative showing that good cause exists for this Order.
This motion will be based upon this Notice, the Memorandum of Points and Authorities
attached hereto, the attached Declaration of Mark T. Coffin, the records and files herein, as well as
upon such other and further oral and documentary evidence as may be presented at the hearing of this
10 Ex Parte Application.
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12 ZOOM MEETING ID: 959 8605 7786
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15 DATED: February 1, 2021 MARK T. COFFIN, P.C.
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By:
. Coffin
18 6rneys for Plaintiffs DAVID G. BERTRAND
and DOROTHY CHURCHILL-JOHNSON
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NOTICE OF MOTION AND EX PARTE APPLICATION FOR AN ORDER FOR TERMINATING AND MONETARY
SANCTIONS AGAINST DEFENDAN SICA BERRY; DECLARATION; EXHIBITS
MEMORANDUM OF POINTS AND AUTHORITIES
I INTRODUCTION
This matter is set for trial on March 8, 2021. Plaintiffs have worked diligently to complete
discovery pursuant to the code deadlines, but Defendant BERRY has consistently refused to
cooperate. Plaintiffs brought a Motion to Compel Answers to Supplemental Discovery, and likewise
to compel Ms. BERRY’S deposition. The Court heard the motion on November 9, 2020 and ordered
Ms. BERRY to serve answers to supplemental discovery without objections by November 23, 2020.
Ms. Berry’s deposition was ordered to take place on December 10, 2020, after the parties discussed
and agreed to that date on the record.
10 Ms. BERRY has violated the Court’s Order by failing to serve verified responses to the
11 supplemental discovery as ordered by the Court. At her deposition on December 10, 2020, refused to
12 answer several questions, and provided evasive responses to other questions. Shortly after the
13 deposition commenced, Ms. BERRY announced that she had to leave “in 15 minutes,” and
14 terminated the deposition after only an hour. Much of that hour was spent on Ms. BERRY’S self-
15 serving narratives, ad hominem remarks, and accusations, rather than factual responses.
16 When a party intentionally violates an Order of the Court, the available remedies include
17 monetary sanctions, issue and evidence sanctions, and terminating sanctions. (Code of Civil
18 Procedure §§ 2030.290(c); 2031.300(c).)
19 This is the third discovery motion Plaintiffs have been forced to file against Ms. BERRY in
20 this case. Monetary sanctions are an imperfect solution, because by her own account, Ms. BERRY is
21 penniless and destitute. At this stage of the case, no “issue sanctions” can provide an adequate
22 remedy for Ms. BERRY’s repeated attempts to evade discovery.
23 For these reasons, Plaintiffs seek an Order of terminating sanctions against Ms. BERRY,
24 striking her Answer and entering her Default, as well as reimbursement of fees and costs necessary to
25 bring this Motion before the Court. In the alternative, moving parties request that the Court re-order
26 Ms. BERRY to respond to written discovery, and waive the 7-hour limitation of Code of Civil
27 Procedure § 2025.290 in order to complete Ms. BERRY’S deposition.
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NOTICE OF MOTION AND EX PARTE APPLICATION FOR AN ORDER FOR TERMINATING AND MONETARY
SANCTIONS AGAINST DEFENDANT JESSICA BERRY ; DECLARATION; EXHIBITS
Il. FACTUAL BACKGROUND AND PROCEDURAL STATUS
As alleged in Plaintiffs’ Complaint, after her eviction as Mr. BERTRAND’s tenant, Ms.
BERRY has engaged in numerous written communications to third parties, disparaging and defaming
Mr. BERTRAND by falsely accusing him of being a “criminal,” a “rapist,” a “molester,” and a
“monster.” Ms. BERRY likewise defamed Mr. Bertrand’s assistant, DOROTHY CHURCHILL-
JOHNSON, by falsely calling her a “criminal,” a “felon,” and a “liar,” among other things.
Plaintiffs’ Complaint pleads claims against Ms. BERRY for Libel, Defamation Per Se, Intrusion,
Intentional Infliction of Emotional Distress, Unfair Business Practices, Elder Abuse, Quantum
Meruit, and Unjust Enrichment/Restitution.
10 Procedurally, Ms. BERRY has demonstrated a persistent and willful failure to abide by the
11 tules of discovery. On November 25, 2019, Plaintiffs filed a Motion to Deem Matters Admitted,
12 based on Ms. BERRY’S failure to respond to discovery. Before the hearing Defendant filed a
13 verified response to Requests for Admissions but was ordered to pay monetary sanctions at the
14 hearing of January 6, 2020.
15 On October 6, 2020, Plaintiffs filed a Motion to Compel Ms. BERRY to produce responses to
16 Supplemental Written Discovery and to submit to a deposition. The discovery in question consisted
17 of Supplemental Interrogatories and Supplemental Request for Production of Documents, both of
18 which were served on July 28, 2020, but never responded to. At the motion hearing of November 9,
19 2020, the Court ordered Ms. BERRY to serve answers to supplemental interrogatories without
20 objection, on or before November 23, 2020. (Exb. A and B.) Ms. BERRY failed to respond to the
21 supplemental discovery on November 23, 2020, and as of this writing, has not served responses to
22 the supplemental written discovery at all. (Coffin Declaration, par. 4.)
23 The Court’s ruling of November 9, 2020 further indicated that “Defendant’s deposition will
24 take place on 12/10/20 at 10:00 a.m.” Ms. BERRY’S deposition was accordingly noticed for
25 December 10, 2020, along with standard language that ‘if for any reason the deposition is not
26 completed, it will be continued from day to day, excluding Sundays and holidays until completed.’
27 (Exb. C.) However, shortly after the outset of the deposition at 10:00 am., Ms. BERRY announced
28 that she ‘would have to leave by 11:00 a.m.,’ after less than an hour of deposition testimony. She
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NOTICE OF MOTION AND EX PARTE APPLICATION FOR AN ORDER FOR TERMINATING AND MONETARY
SANCTIONS AGAINST DEFENDANT JESSICA BERRY ; DECLARATION; EXHIBITS
evaded questions and stated that she would not respond to questions that she deemed “fraudulent.”
(See Coffin Declaration, par. 7-10.) Ms. BERRY also spent considerable time on her own narrative
characterization of events, which were entirely non-responsive to any question. She also persisted in
making ad hominem attacks on counsel. (Id.)
Ill. WHEN A PARTY FAILS TO OBEY AN ORDER COMPELLING ANSWERS TO
INTERROGATORIES, THE COURT MAY IMPOSE ANY JUST SANCTIONS,
INCLUDING ISSUE, EVIDENCE, AND TERMINATING SANCTIONS
If a party fails to serve a timely response, and the propounding party moves for and obtains a
10 court order compelling a response, the trial court must impose a monetary sanction against the
11 delinquent party unless that party acted with “substantial justification” or the sanction would
12 otherwise be unjust. (Code of Civil Procedure §§ 2030.290(c), 2031.300(c).) In addition, if that
13 party subsequently disobeys the court’s order compelling a response, the trial court may then “make
14 those orders that are just,” including the imposition of an issue sanction, an evidence sanction, ora
15 terminating sanction. (Code of Civil Procedure §§ 2030.290(c), 2031.300(c).) “In lieu of or in
16 addition” to any of those sanctions, the trial court “may impose a monetary sanction under” section
17 2023.030.
18 “Section 2023.030 authorizes a trial court to impose a monetary sanction against any party or
19 attorney, or both, who has engaged in misuse of the discovery process. Misuses of the discovery
20 process include, among other things, failing to respond or to submit to an authorized method of
21 discovery; making, without substantial justification, an unmeritorious objection to discovery; making
22 an evasive response to discovery; and disobeyinga court order to provide discovery. (section
23 2023.010.)” (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2d Dist, 2007)
24 148 Cal.A pp.4" 390, 404-405, emphasis added.)
25 Numerous cases have affirmed the imposition of terminating sanctions. For example, in
26 Collisson & Kaplan v. Hartounian (2d Dist, 1994) 21 Cal.App.4th 1611, 1613-1615, the court
27 affirmed terminating sanctions awarded after the defendants failed to comply with a single court
28 order to produce documents. In Cornwall v. Santa Monica Dairy Company (1977) 66 Cal.App.3d
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NOTICE OF MOTION AND EX PARTE APPLICATION FOR AN ORDER FOR TERMINATING AND MONETARY
SANCTIONS AGAINST DEFENDANT JESSICA BERRY ; DECLARATION; EXHIBITS
250, 253, a terminating sanction was justified after the plaintiff failed to answer interrogatories
within 30 days after being ordered to do so. In Williams v. Travelers Insurance Company (1975) 49
Cal.A pp.3d 805, 810-11, resulted in a terminating sanction after plaintiff twice failed to provide
appropriate answers to interrogatories, and failed to pay sanctions. In Laguna Autobody v. Farmers
Ins. Exchange (1991) 231 Cal.App.3d 481, 490, a terminating sanction was upheld after the plaintiffs
violated court orders requiring them to answer interrogatories and produce documents.
Here, Ms. BERRY has consistently flaunted the rules of civil procedure, and she has now
ignored this Court’s specific orders. Pursuant to CCP § 2023.030, the Court has the authority to
Order Ms. BERRY’s General Denial stricken and enter her default.
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11 IV ALTERNATIVELY, THE COURT SHOULD ORDER DEFENDANT TO SUBMIT TO
12 A MEANINGFUL DEPOSITION, ANSWER QUESTIONS INA
13 STRAIGHTFORWARD MANNER, AND WAIVE THE SEVEN-HOUR LIMITATION
14 OF CODE OF CIVIL PROCEDURE § 2025.290
15 Code of Civil Procedure section 2025.290(a) provides:
16 (a) Except as provided in subdivision (b), or by any court order, including a case
17 management order, a deposition examination of the witness by all counsel, other than the
18 witness’ counsel of record, shall be limited to seven hours of total testimony. The
19 court shall allow additional time, beyond any limits imposed by this section, if
20 needed to fairly examine the deponent or if the deponent, another person, or any
21 other circumstance impedes or delays the examination.
22 Here, Ms. BERRY has undermined the deposition process by refusing to respond to any
23 question that she deems “fraudulent.” While the rationale behind this objection is unclear, she
24 specifically refused to answer questions about the demand letter written by her prior counsel
25 Valentine & Reese, which initiated this case. (Coffin Declaration, par. 7.) She also flatly refused
26 to answer questions about her lease, which she has referred to several times as “fraudulent.” (Id.)
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NOTICE OF MOTION AND EX PARTE APPLICATION FOR AN ORDER FOR TERMINATING AND MONETARY
SANCTIONS AGAINST DEFENDANT JESSICA BERRY ; DECLARATION; EXHIBITS
Vv. CONCLUSION
Based on the foregoing, Plaintiffs respectfully request that the Court Order Defendant BERRY’s
General Denial stricken and her default entered. In the alternative, Plaintiffs request that the Court Re-
Order Ms. BERRY to: 1.) provide complete, verified responses to Plaintiffs supplemental discovery
without objections by a date certain; 2.) to waive the CCP § 2025.290 seven-hour deposition limit in
Ms. BERRY’s case, and 3,) Order Ms. BERRY to respond to all deposition questions regarding leases,
demand letters, and any other issues in the case, regardless of whether she personally deems them
“fraudulent.”
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Respectfully submitted,
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DATED: February 1, 2021 MARK T. COFFIN, P.C.
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By:
13 Mai Coffin
Attormeys for Plaintiffs DAVID G. BERTRAND
14 and DOROTHY CHURCHILL-JOHNSON
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NOTICE OF MOTION AND EX PARTE APPLICATION FOR AN ORDER FOR TERMINATING AND MONETARY
SANCTIONS AGAINST DEFENDANT JESSICA BERRY; DECLARATION; E: HBITS
DECLARATION OF MARK T. COFFIN IN SUPPORT OF EX PARTE APPLICATION
I, Mark T. Coffin, declare:
I am an attorney licensed to practice law in the State of California, and the principal of
the Law Office of Mark T. Coffin, P.C. I am the attomey of record for Plaintiffs David
Bertrand and Dorothy Churchill-Johnson in the above-captioned litigation. If called
upon as a witness, I could and would competently testify to the following facts, under
oath, from my own personal knowledge. This Declaration is submitted in support of
Plaintiffs’ Ex Parte A pplication for an Order for Terminating and Monetary Sanctions
10 against Defendant Jessica Berry.
11 Attached as ExhibitA is a true and correct copy of the Court’s November 9, 2020
12 Tentative Ruling on my clients’ Motion to Compel Responses to Supplemental Written
13 Discovery. At the hearing, the Court affirmed the Tentative Ruling, and Ordered Ms.
14 Berry to serve verified responses to my clients’ supplemental discovery by no later than
15 November 23, 2020. The ruling also required Ms. Berry to submit to a deposition on
16 December 10, 2020 at 10:00 a.m.
17 Attached as Exhibit B is a true and correct copy of the December 1, 2020 Notice of
18 Order on Plaintiffs’ Motion for Trial Setting Preference and Motion to Compel
19 Defendant’s Written Responses to Discovery and Deposition, filed by my office and
20 served on Ms. Berry.
21 As of this writing, I have not received verified written responses from Ms. Berry to the
22 Supplemental Discovery as Ordered by the Court in Exhibits A and B.
23 Attached as Exhibit C is a true and correct copy of the Notice of Taking Remote Web
24 & Digital Deposition of Jessica Berry in Lieu of In-Person, served by my office on
25 November 13, 2020.
26 Attached as Exhibit D is a true and correct copies of selected pages of the condensed
27 transcript of Ms. Berry’s deposition testimony on December 10, 2020.
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NOTICE OF MOTION AND EX PARTE APPLICATION FOR AN ORDER FOR TERMINATING AND MONETARY
SANCTIONS AGAINST DEFENDANT JESSICA BERRY ; DECLARATION; EXHIBITS
7. Ather deposition, I inquired whether Ms. Berry had prepared responses to the
supplemental written discovery as ordered. She responded that she would ‘refuse to
answer questions about a lease, and about a demand letter written by her prior counsel
Valentine & Reese. (See Exb. D, p. 11:13-12:10.) When asked if she would produce
verified responses to the supplemental discovery, she responded “I will agree to reply
to things that are not frauds.” (33:3-8.) When asked when she would produce verified
supplemental responses, she launched into a narrative accusation against Plaintiff's
counsel, and revisited requests made in her prior motions such as appointment of a
Discovery Master, which the court has already denied. (See Exb. D, p. 34:14-35:23.)
10 Although she promised to produce supplemental responses on January 15, 2021, she
11 has not done so. (See Exb. D, p. 35:21-37:4.)
12 Ms. Berry refused to respond to a simple question about where she was physically
13 located at the time she gave her testimony. (See Exb. D, p. 10:8-25.)
14 My impression of Ms. Berry’s attitude about the deposition is that she unwilling to
15 answer questions in a straightforward, factual manner. Instead, she sought to fill the
16 record with argument and purely subjective narrative about her own legal conclusions.
17 (See, e.g., Exb. D., pp. 28:2-22; pp. 30:8-32:18; pp. 33:15-11; p. 37:6-25.) It soon
18 became clear to me that Ms. Berry would not voluntarily cooperate with the deposition
19 process, without further Court action.
20 10 The deposition commenced at 10:10 a.m. Less than an hour into the deposition, Ms.
21 Berry announced that she had to ‘leave in 15 to 20 minutes.’ (See Exb. D, p. 29:2-
22 30:1.) The deposition concluded at 11:03 a.m., after less than an hour. (See Exb. D, p.
23 1, 41.)
24 11. Attached as Exhibit E is a true and correct copy of the email sent by my office to
25 Defendant Jessica Berry, notifying her of this Ex Parte hearing. The matter is exigent
26 because percipient discovery in this case is cut off on February 5, 2021.
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NOTICE OF MOTION AND EX PARTE APPLICATION FOR AN ORDER FOR TERMINATING AND MONETARY
SANCTIONS AGAINST DEFENDANT JESSICA BERRY ; DECLARATION; EXHIBITS
12. Attached as Exhibit F is the Court’s Zoom information for this hearing.
I declare under the laws of the State of California that the foregoing is true and correct,
and that this Declaration was executed on February 1, 2021 at Santa Barbara, California.
. Coffin, Declarant
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NOTICE OF MOTION AND EX PARTE APPLICATION FOR AN ORDER FOR TERMINATING AND MONETARY
SANCTIONS AGAINST DEFENDANT JESSICA BERRY; DECLARATION. HIBITS
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EXHIBIT A
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Superior Court of California
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County of Santa Barbara
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Minute Order
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EXHIBIT A
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA BARBARA
Dated and Entered: 11/09/2020 Time: 10:00 AM
Judicial Officer: Colleen K Sterne
Deputy Clerk: Kary Swan Dept: SB Dept 5
Deputy Sheriff: Michael Hollon
Court Reporter: Shelley Cockrell Case No: 19CV02429
David G Bertrand et al vs Jessica Berry
Parties Present:
Berry, Jessica Defendant
Coffin, Mark T Attorney for
Plaintiff
NATURE OF PROCEEDINGS: Motion: Compel Responses, Motion: Trial Setting Preference
Parties appeared by Zoom and presented oral argument.
Defendant's deposition shall take place on 12/10/20 at 10:00 a.m.
Tentative is affirmed.
Counsel shall prepare the order.
Future Scheduled Hearing:
March 08, 2021 11:30 AM Trial Confirmation Conference
SB Dept 5
Sterne, Colleen K
Tentative Ruling:
(1) The court grants, in part, plaintiffs David G. Bertrand and Dorothy Churchill-Johnson’s Motion to
Compel Responses to Supplemental Written Discovery, and Motion to Compel Deposition of Defendant
Jessica Berry, and orders that, on or before November 23, 2020, defendant Jessica Barry shall serve
answers to the supplemental interrogatories served in this case on July 27, 2020, without objections. The
court denies the motion in all other respects, including the request for a monetary sanction.
(2) The court grants plaintiffs David G. Bertrand and Dorothy Churchill-Johnson’s motion for trial
preference under CCP § 36(a). The court sets this matter for trial on [A DATE BEFORE MARCH 9, 2020]
at [TIME].
Background: On May 7, 2019, plaintiffs David G. Bertrand and Dorothy Churchill-Johnson filed their
complaint against defendant Jessica Berry for 1) libel, 2) defamation per se, 3) intrusion, 4) intentional
infliction of emotional distress, 5) unfair business practices, 6) elder abuse, 7) quantum meruit, and 8)
unjust enrichment/restitution. The court entered Berry’s default. Later, the court granted Berry’s motion
for relief from default.
SC-2411 (Revised July 1, 2013) MINUTE ORDER
In a minute order dated October 28, 2019, the court ordered that this case is related to the case of
Jessica Berry v. David Bertrand, Case No. 19CV02357. That case is David Bertrand’s appeal ofa Labor
Commissioner award in Berry’s favor (hereinafter “the Labor appeal”). Bertrand is represented by the
same counsel in both cases and that counsel also represents Churchill-Johnson in this case. In the
Labor appeal, Berry is represented by counsel but she is unrepresented in this case.
Importantly, “related cases” are not “consolidated” for any purpose. Related cases maintain their
separate identities, but are heard by the same trial judge. “Absent a stipulation to consolidate, a noticed
and written motion to consolidate is required.” Sutter Health Uninsured Pricing Cases, 171 Cal.App.4th
495, 514 (2009); CCP § 1048; CRC 3.350. (The court is not suggesting there are grounds for
consolidation. The cases do not appear to have common questions of law or fact.)
Motion to Compel Responses to Supplemental Discovery and to Compel Defendant Berry’s
Deposition: Plaintiffs Bertrand and Churchill-Johnson filed a motion in this case to compel responses
to supplemental interrogatories and supplemental request for production of documents in this case and
to supplemental interrogatories and supplemental request for production of documents in the Labor
appeal. Counsel for plaintiffs says he has received no responses to this discovery. [Coffin Dec. 13]
Plaintiffs also move to compel Berry’s deposition. They seek a monetary sanction of $2,695. On October
27, Berry filed her “Objection to Appellants Motion to Compel Deposition.” She requests a monetary
sanction of $2,695. Berry also asks the court to appoint a special master to oversee discovery.
Piecing together the chronology of what transpired in this case is very difficult because Mr. Coffin’s
declaration consisting of eight exhibits and 82 pages (one of the exhibits consists of 37 pages) does not
comply with CRC 3.1110(f)(4), which provides that “electronic exhibits must include electronic bookmarks
with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or
letter and briefly describe the exhibit.” Counsel has made it very difficult to review the exhibits. Berry, too,
fails to provide bookmarks for the exhibits attached to her opposition.
1 Requests for Production and Interrogatories: On July 27, 2020, plaintiffs served a supplemental
request for production of documents and supplemental interrogatories on Berry in both this case and the
Labor appeal. She has not responded.
Berry filed an opposition on her own behalf. Her counsel in the Labor appeal has not filed anything,
which is not surprising as he does not represent Berry in the case in which the motion was filed. The
confusion generated by plaintiffs’ motion is reflected in plaintiffs’ reply. In the reply, plaintiffs’ counsel
refers to an untimely opposition signed by Berry's counsel in the Labor appeal. The court finds no such
opposition filed in the Labor appeal or in this case.
Plaintiffs provide no authority for issuing an order in this case for the discovery in the related Labor
appeal. The court denies the motion to the extent it seeks an order compelling responses to discovery in
the Labor appeal.
A party who fails to serve timely responses to interrogatories or a request for production waives any
objection to the interrogatories or requests. CCP §§ 2030.290(a) and 2031.300(a). The party
propounding the discovery may move to an order compelling a response. CCP §§ 2030.290(b) and
2031.300(b).
In her objection, Berry says that counsel for plaintiffs “knowingly brought fraudulent documents of his
own creation into the discovery process, and then demanded MISS BERRY do the impossible — answer
SC-2411 (Revised July 1, 2013) MINUTE ORDER
questions pertaining to those fraudulent documents.” Specifically, she complains of a fraudulent lease on
which an allegedly unwarranted unlawful detainer action was based. (There was an unlawful detainer
action that resulted in a stipulated judgment on December 14, 2017 (Case No. 17CV04551). That is a
final judgment.) She also refers to a “FAUX ‘DEMAND LETTER’.” Berry does not say what the
interrogatories are that ask about these documents but she can address any invalidity of documents in
her answers.
Berry complains of actions by her attorney in the Labor appeal. She says she had to withdraw prior
answers to discovery because of counsel’s conduct. But those responses are not the subject of the
current motion. She says her counsel obtained her Apple ID and password but that is not pertinent to the
current motion. If Berry is unhappy with her counsel in the Labor appeal, she can seek other counsel.
Berry claims to have evidence that suggests that the judge in this case is biased. (Berry has not filed
verified statement objecting to the judge hearing matters in this case pursuant to CCP § 170.3(c).) Berry
bases her suggestion of bias on a statement from the Santa Barbara District Attorney’s office that her
Labor Board award is being thrown out. The communication attached as Exhibit 9 to the opposition
states that the Labor Commissioner rejected a claim of wage theft. The court has not thrown out anything
and the appeal of the Labor Commissioner’s award is pending.
Berry also complains that plaintiffs’ counsel has refused to provide her with discovery she requested
seven months ago. She alleges abuse and bullying by plaintiff Bertrand. Those are matters that are not
before the court. At issue is solely Berry's failure to respond to the supplemental discovery.
Berry wants a master appointed to oversee discovery. At this point, the discovery issues are not complex
and both parties have access to the court to resolve any discovery disputes.
The motion is straightforward as to the failure to respond to the supplemental interrogatories and request
for production in this case. Berry did not file a timely response, so she must respond, without objection.
2. Deposition: Plaintiffs move to compel Berry’s deposition.
On July 30, 2020, plaintiffs’ counsel served on Berry a notice of taking remote web & digital deposition
with a date for the deposition on September 9. [Exhibit E] The caption of the notice is the caption for the
Labor appeal. (The caption introduces another concept, indicating that the Labor appeal is “coordinated
with” this case. The cases have not been coordinated under CCP § 403, § 404, or otherwise.
Coordination applies to cases pending in different courts. Even coordinated cases are not necessarily
consolidated.)
The parties engaged in a series of communications regarding discovery and Berry's counsel's status. On
September 2, Berry said the deposition date would need to be rescheduled for after the CMC on
September 21 because of health issues and “logistical complications.” [Exhibit G, 018] Plaintiffs’ counsel
responded that he would reschedule the deposition if, and only if, Berry and counsel provided a date on
which they were both available and it should be before the CMC on September 21. [Exhibit G, 019]
Having not received confirmation ofa new date, plaintiffs’ counsel wrote Berry and her counsel, asking
for confirmation of availability on September 16. [Exhibit G, 023] Berry's counsel replied that he was
available but could not say whether Berry was. [Exhibit G, 024] On September 4, plaintiffs’ counsel said
he would notice the deposition “for that date.” [Exhibit G, 025]
SC-2411 (Revised July 1, 2013) MINUTE ORDER
On September 8, Plaintiffs’ counsel served a first amended notice of taking remote web & digital
deposition in the Labor appeal, setting a deposition on September 17. [Exhibit F] On September 17,
plaintiffs’ counsel and Berry's counsel appeared for the deposition but Berry did not. Plaintiffs’ counsel
took Berry’s nonappearance on the record. [Coffin Dec. 146]
The amended notice set a date that was less than 10 days after service—a violation of CCP §
2025.270(a). This was not an agreed date. Notice of a unilaterally set date must give at least 10 days’
notice. Plaintiffs cite no authority for the 10 day notice not applying to subsequent notices of a deposition.
Because the notice is faulty, the court will not compel a deposition.
Also, no deposition has been noticed in this case. This motion should have been filed in the Labor
appeal. It appears that the parties have attempted to schedule a single deposition for the two cases,
which is admirable. But that requires an agreement of all parties—plaintiffs through counsel, Berry as an
individual in this case, and Berry through counsel in the Labor appeal. (It would seem that Berry would
only want to be deposed once.)
3. Monetary Sanction: The court shall impose a monetary sanction against any party, person, or
attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories or
request for production, “unless it finds that the one subject to the sanction acted with substantial
justification or that other circumstances make the imposition of the sanction unjust.” CCP §§ 2030.290(c)
and 2032.300(c). The court is not granting the relief requested with respect to the deposition, so no
monetary sanction is available under CCP § 2025.450(g).
Given the state of the pleadings, including the attempt to file a motion in one case and obtain orders
related to another case and the failure to comply with CRC 3.1110(f)(4), the court concludes that
circumstances make the imposition of the sanction unjust. The court denies all requests for monetary
sanctions.
4. Order: The court grants, in part, plaintiffs David G. Bertrand and Dorothy Churchill-Johnson’s Motion
to Compel Responses to Supplemental Written Discovery, and Motion to Compel Deposition of
Defendant Jessica Berry, and orders that, on or before November 23, 2020, defendant Jessica Barry
shall serve answers to the supplemental interrogatories served in this case on July 27, 2020, without
objections. The court denies the motion in all other respects, including the request for a monetary
sanction.
Motion for Trial Preference: Plaintiffs move for a trial preference under CCP § 36 and CRC 3.1335.
From plaintiffs’ reply, it appears that Berry served an objection to the motion but there is not one on file
with the court. (The court clerk did reject an objection on October 27 for lack of original signatures. That
may be the one served on plaintiffs.)
CCP § 36(a) provides: “A party to a civil action who is over 70 years of age may petition the court for a
preference, which the court shall grant if the court makes both of the following findings: (1) The party has
a substantial interest in the action as a whole. (2) The health of the party is such that a preference is
necessary to prevent prejudicing the party's interest in the litigation.” CCP § 36(d) provides: “In its
discretion, the court may also grant a motion for preference that is accompanied by clear and convincing
medical documentation that concludes that one of the parties suffers from an illness or condition raising
substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the
interests of justice will be served by granting the preference.” There is no declaration regarding either
plaintiff's prospects for survival, so subdivision (d) does not apply.
SC-2411 (Revised July 1, 2013) MINUTE ORDER
Plaintiff Bertrand is 91 years old and plaintiff Churchill-Johnson is 78 years old. Bertrand’s treating
physician, Brittany Bryan, M.D., has supplied a declaration stating that, in addition to his advanced age,
an expedited trial is necessary because he suffers from coronary artery disease; is a heart attack
survivor who has already had an operation to place a stent; suffers from hypertension and high
cholesterol; suffers from glaucoma, causing extremely limited vision; and recently suffered from
debilitating back pain. [Bryan Dec. 11-4] In the past six months, Bertrand’s physical condition has
deteriorated, in that he tires easily and quickly and his back pain has made it difficult for him to move and
focus his attention for extended periods of time. [Coffin Dec. 113]
According to the reply, Berry does not oppose the trial preference but wants an expedited trial in Jessica
Berry v. David Bertrand and Barbara Palomarez, Case No. 20CV02941, filed on September 9, 2020. She
cannot seek a trial preference in a separate case in her responsive pleading in this case. Even in the
appropriate case, the person entitled to preference must petition the court. The opposing party cannot do
that for him.
In this context, the court observes that plaintiffs have again sought to seek an order applicable to a
related case. There is no authority for doing that. The cases are still separate and Bertrand would have
to bring a separate motion in the Labor appeal.
The court finds that Bertrand meets the criteria for mandatory trial preference under CCP § 36(a). The
court will grant the motion in this case only, not the Labor appeal.
CCP § 36(f) requires the court to set the matter for trial not more than 120 days from granting the motion.
The court may only continue the trial beyond that period for physical disability of a party or a party’s
attorney, or upon a showing of good cause stated in the record. “Any continuance shall be for no more
than 15 days and no more than one continuance for physical disability may be granted to any party.”
In their most recent case management statements, all parties request a jury trial. This creates a problem
in light of difficulties assembling juries during the COVID-19 pandemic. So far, the court has only
assembled juries for felony criminal trials, which must be brought to trial within 60 days of arraignment
(with extensions under Gov't Code § 68115 due to the pandemic, which extensions expired on August
17). Itis unlikely a civil jury will be impaneled before Spring or Summer 2021, if then.
While the state of the court's calendar is a factor to be considered when ruling on a motion for
discretionary trial preference, calendar congestion alone is no reason to deny a motion for trial
preference. Dick v. Superior Court, 185 Cal.App.3d 1159, 1167 (1986). “[I]t is monstrous to deny a forum
to a plaintiff simply because the procedure of the courts has been too slow.” Salas v. Sears, Roebuck &
Co., 42 Cal.3d 342, 349 (1986). There appears to be no authority for considering the court's calendar in
ruling on mandatory preference under CCP § 36(a).
A pandemic is not merely court congestion or slow court procedures. As noted in the California Chief
Justice’s order of April 29, 2020, the Governor has declared a state of emergency. “The CDC, the
California Department of Public Health, and local county health departments have recommended
stringent social distancing measures of at least six feet between people and encouraged vulnerable
individuals to avoid public spaces. The continuous operation of our courts is essential for our
constitutional form of government, and for providing due process and protecting the public. However,
courts are clearly places of high risk during this pandemic because they require gatherings of judicial
officers, court staff, litigants, attorneys, witnesses, defendants, law enforcement, and juries—well in
SC-2411 (Revised July 1, 2013) MINUTE ORDER
excess of the numbers allowed for gathering under current executive and health orders.” Judicial Council
Statewide Emergency Order, April 29, 2020.
The court must grant the motion for trial preference. However, the court is advising the parties that it will
likely be necessary to grant successive 15-day continuances (unless the parties stipulate to longer
continuances). The Los Angeles Superior Court has taken the position that the current COVID-19
pandemic meets the definition of good cause under CCP § 36(f). http://www.lacourt.org/pdf/COVID-
19FAQsCivilLitigation-04222020.pdf. This court is inclined to agree. While CCP § 36(f) limits to one a
continuance for physical disability of any party, there is no limitation on the number of 15-day
continuances that the court may grant due to “good cause.”
The court grants plaintiffs David G. Bertrand and Dorothy Churchill-Johnson’s motion for trial preference
under CCP § 36(a). The court sets this matter for the Trial Confirmation Conference on March 8, 2021 at
11:30 a.m. in Department 5.
DARREL E. PARKER, EXECUTIVE OFFICER Minutes Prepared by:
Kary Swan , Deputy
SC-2411 (Revised July 1, 2013) MINUTE ORDER
10
11
12
EXHIBIT B
13
14
15
Order on Plaintiffs’ Motion for Trial Setting Preference
16
and Motion to Compel Defendant's Written Responses
17
to Discovery and Deposition
18
19
20
21
22
23
24
25
26
27
28
EXHIBIT B
Pursuant to CRC 2.259 this document has been electronically filed by the
Superior Court of California, County of Santa Barbara, on 11/10/2020
Mark T. Coffin, State Bar No. 168571 FILED
MARK T. COFFIN, P.C. SUPERIOR COURT of CALIFORNIA
21 E. Carrillo Street, Suite 240 COUNTY of SANTA BARBARA
Santa Barbara, California 93101 22/01/2020
Telephone: (805) 248-7118 Darrel E. Parker, Executive Officer
BY Chavez, Terri
Hautes I
Facsimile: (866) 567-4028
Email: mtc@markcoffinlaw.com
Deputy Clerk
Attorneys for Plaintiff DAVID G. BERTRAND and DOROTHY CHURCHILL-JOHNSON
SUPERIOR COURT OF CALIFORNIA
FOR THE COUNTY OF SANTA BARBARA
10 DAVID G. BERTRAND, an Individual, Case No. 19CV02429
DOROTHY CHURCHILL-JOHNSON, an
11 Individual, {PROPOSED} ORDER ON
PLAINTIFFS’ MOTION FOR TRIAL
12 Plaintiff,
SETTING PREFERENCE AND
13 VS. MOTION TO COMPEL
DEFENDANT’S WRITTEN
14 JESSICA BERRY, an Individual, and DOES 1 RESPONSES TO DISCOVERY AND
through 100, Inclusive, DEPOSITION
15
Defendants. Date: Monday, November 09, 2020
16
Time: 10:00 a.m.
17 Dept: 5
18 Assigned for all purposes to the
Hon. Colleen K. Sterne
19 Dept: 5
Complaint Date: May 7, 2019
20 Trial Date: No Trial Date Set
21
22
23
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25
26
27
28
1
[PROPOSED] ORDER ON PLAINTIFFS’ MOTION FOR TRIAL SETTING PREFERENCE AND MOTION TO.
COMPEL WRITTEN RESPONSES FROM JESSICA BERRY
"[PROPOSED] ORDER
Based upon the moving and opposition papers, the oral argument of the parties at the hearing
on this Motion, and for GOOD CAUSE SHOWN, it is Ordered that:
1 Plaintiffs, DAVID G. BERTRAND and DOROTHY CHURCHILL-JOHNSON’s Motion to
Compel supplemental written responses from Defendant, JESSICA BERRY is granted.
Defendant, JESSICA BERRY shall provide supplemental written responses to Plaintiffs’
supplemental discovery (Supplemental Interrogatories and Supplemental Requests for
Production), without objections, by no later than November 23, 2020.
Plaintiffs, DAVID G. BERTRAND and DOROTHY CHURCHILL-JOHNSON’s Motion for
10 Trial Setting Preference is granted. Jury trial of this case is set for March 8, 2021, at 11:30
11 a.m. in Department 5 of the above-captioned Court. It may be necessary for the Court to
12 grant successive 15-day continuances (unless the parties stipulate to longer continuances) due
13 to the current COVID-19 pandemic and for good cause under the California Code
of Civil
14 Procedure§ 36(f).
15 Following Plaintiffs’ proper service ofa notice of deposition, the deposition of Defendant
16 JESSICA BERRY shall take place on December 10, 2020, at 10:00 a.m, via remote internet
17 platform.
18 This Order shall not pertain to Santa Barbara Superior Court Case Number 19CV02357.
19 Plaintiffs’ request for monetary sanctions is denied, and Defendant’s request for appointment
20 ofa Special Master is denied.
21
22 IT IS SO ORDERED.
23
24
DATED: 12/01/2020 SE
Honorable Judge of the Superior Court
25 Colleen K. Sterne
26
27
28
2
[PROPOSED] ORDER ON PLAINTIFFS’ MOTION FOR TRIAL SETTING PREFERENCE AND MOTION TO.
COMPEL WRITTEN RESPONSES FROM JESSICA BERRY
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF SANTA BARBARA
I am employed in the County of Santa Barbara, State of California. I am over the age of 18
years and not a party to this action. My business address is 21 E. Carrillo Street, Suite 240, Santa
Barbara, California 93101. On November 10, 2020, I served the foregoing documents described as
[PROPOSED] ORDER ON PLAINTIFFS’ MOTION FOR TRIAL SETTING PREFERENCE
AND MOTION TO COMPEL DEFENDANT’S WRITTEN RESPONSES TO DISCOVERY
AND DEPOSITION, on the interested parties in this action:
Address Party
Jessica Berry
JESSICA BERRY, in pro per.
P.O. Box 541
10 Santa Ynez, CA 93460
ll And
12 Jessica Berry
i P.O. Box 432
13
Solvang, CA 93464
14
as
15
16
17
x BY U.S. MAIL: This document was served by United States mail through the US Postal
Service. I enclosed the document in a sealed envelope or package addressed to the person(s)
at the address(es) above and placed the envelope(s) for collection and mailing, following our
ordinary business practices. | am readily familiar with this firm’s practice of collecting and
processing correspondence for mailing. On the same day that correspondence is placed for
18 collection and mailing, it is deposited in the ordinary course of business with the United
States Postal Service at Santa Barbara, California, in a sealed envelope with postage fully
19 paid,
20 VIA EMAIL: I served the documents above on all parties via electronic mail, to the
addresses as listed on the attached service list, following my employer’s business practice for
21 collection and processing of correspondence. Such electronic transmission was reported as
complete and without error on this date.
22
(State) I declare under penalty of perjury under the laws of the State of California that the
23 foregoing is true and correct.
gu
24
Executed on November 10, 2020, at Santa Barbara, Californi
Preview
ELECTRONICALLY FILED Superior Court of California County of Santa Barbara Mark T. Coffin, State Bar No. 168571 Darrel E. Parker, Executive Officer Scott A. Jaske, State Bar No. PL-461842 2/1/2021 2:18 PM MARK T. COFFIN, P.C. By: Terri Chavez, Deputy 21 E. Carrillo Street, Suite 240 Santa Barbara, California 93101 Telephone: (805) 248-7118 Facsimile: (866) 567-4028 Email: mtc@markcoffinlaw.com Email: scott@markcoffinlaw.com Attorneys for Plaintiffs DAVID G. BERTRAND and DOROTHY CHURCHILL-JOHNSON SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF SANTA BARBARA 10 11 DAVID G. BERTRAND, an Individual, Case No. 19CV02429 DOROTHY CHURCHILL-JOHNSON, an 12 Individual, NOTICE OF MOTION AND EX PARTE APPLICATION FOR 13 Plaintiff, SANCTIONS AGAINST DEFENDANT 14 JESSICA BERRY FOR FAILURE TO VS. COMPLY WITH COURT ORDER; 15 JESSICA BERRY, an Individual, and DOES 1 DECLARATION; EXHIBITS through 100, Inclusive, 16 DATE: Wednesday, February 3, 2021 Defendants. TIME: 8:30 a.m. 17 DEPT: Five 18 ZOOM ID: 959 8605 7786 Password: 2364587 19 Assigned for all purposes to the 20 Hon. Colleen K. Sterne 21 22 23 24 25 26 27 28 1 NOTICE OF MOTION AND EX PARTE APPLICATION FOR SANCTIONS AGAINST DEFENDANT JESSICA. BERRY FOR FAILURE TO COMPLY WITH COURT ORDER; DECLARATION; EXHIBITS PLEASE TAKE NOTICE that at 8:30 a.m, on Wednesday, February 3, 2021, or as soon thereafter as the matter may be heard in Department 5 of the above-entitled Court, located at 1100 Anacapa Street, Santa Barbara, CA 93101, Plaintiffs will move this Court for an Order for sanctions against Defendant JESSICA BERRY for failure to comply with Court Order. This Ex Parte Application is based on upon Code of Civil Procedure §§ 2030.290(c) and 2031.300(c), and upon the moving party’s affirmative showing that good cause exists for this Order. This motion will be based upon this Notice, the Memorandum of Points and Authorities attached hereto, the attached Declaration of Mark T. Coffin, the records and files herein, as well as upon such other and further oral and documentary evidence as may be presented at the hearing of this 10 Ex Parte Application. ll 12 ZOOM MEETING ID: 959 8605 7786 13 ZOOM PASSCODE; 2364587 14 zi 15 DATED: February 1, 2021 MARK T. COFFIN, P.C. 16 17 By: . Coffin 18 6rneys for Plaintiffs DAVID G. BERTRAND and DOROTHY CHURCHILL-JOHNSON 19 20 21 22, 23 24 25 26 27 28 2 NOTICE OF MOTION AND EX PARTE APPLICATION FOR AN ORDER FOR TERMINATING AND MONETARY SANCTIONS AGAINST DEFENDAN SICA BERRY; DECLARATION; EXHIBITS MEMORANDUM OF POINTS AND AUTHORITIES I INTRODUCTION This matter is set for trial on March 8, 2021. Plaintiffs have worked diligently to complete discovery pursuant to the code deadlines, but Defendant BERRY has consistently refused to cooperate. Plaintiffs brought a Motion to Compel Answers to Supplemental Discovery, and likewise to compel Ms. BERRY’S deposition. The Court heard the motion on November 9, 2020 and ordered Ms. BERRY to serve answers to supplemental discovery without objections by November 23, 2020. Ms. Berry’s deposition was ordered to take place on December 10, 2020, after the parties discussed and agreed to that date on the record. 10 Ms. BERRY has violated the Court’s Order by failing to serve verified responses to the 11 supplemental discovery as ordered by the Court. At her deposition on December 10, 2020, refused to 12 answer several questions, and provided evasive responses to other questions. Shortly after the 13 deposition commenced, Ms. BERRY announced that she had to leave “in 15 minutes,” and 14 terminated the deposition after only an hour. Much of that hour was spent on Ms. BERRY’S self- 15 serving narratives, ad hominem remarks, and accusations, rather than factual responses. 16 When a party intentionally violates an Order of the Court, the available remedies include 17 monetary sanctions, issue and evidence sanctions, and terminating sanctions. (Code of Civil 18 Procedure §§ 2030.290(c); 2031.300(c).) 19 This is the third discovery motion Plaintiffs have been forced to file against Ms. BERRY in 20 this case. Monetary sanctions are an imperfect solution, because by her own account, Ms. BERRY is 21 penniless and destitute. At this stage of the case, no “issue sanctions” can provide an adequate 22 remedy for Ms. BERRY’s repeated attempts to evade discovery. 23 For these reasons, Plaintiffs seek an Order of terminating sanctions against Ms. BERRY, 24 striking her Answer and entering her Default, as well as reimbursement of fees and costs necessary to 25 bring this Motion before the Court. In the alternative, moving parties request that the Court re-order 26 Ms. BERRY to respond to written discovery, and waive the 7-hour limitation of Code of Civil 27 Procedure § 2025.290 in order to complete Ms. BERRY’S deposition. 28 1 3 NOTICE OF MOTION AND EX PARTE APPLICATION FOR AN ORDER FOR TERMINATING AND MONETARY SANCTIONS AGAINST DEFENDANT JESSICA BERRY ; DECLARATION; EXHIBITS Il. FACTUAL BACKGROUND AND PROCEDURAL STATUS As alleged in Plaintiffs’ Complaint, after her eviction as Mr. BERTRAND’s tenant, Ms. BERRY has engaged in numerous written communications to third parties, disparaging and defaming Mr. BERTRAND by falsely accusing him of being a “criminal,” a “rapist,” a “molester,” and a “monster.” Ms. BERRY likewise defamed Mr. Bertrand’s assistant, DOROTHY CHURCHILL- JOHNSON, by falsely calling her a “criminal,” a “felon,” and a “liar,” among other things. Plaintiffs’ Complaint pleads claims against Ms. BERRY for Libel, Defamation Per Se, Intrusion, Intentional Infliction of Emotional Distress, Unfair Business Practices, Elder Abuse, Quantum Meruit, and Unjust Enrichment/Restitution. 10 Procedurally, Ms. BERRY has demonstrated a persistent and willful failure to abide by the 11 tules of discovery. On November 25, 2019, Plaintiffs filed a Motion to Deem Matters Admitted, 12 based on Ms. BERRY’S failure to respond to discovery. Before the hearing Defendant filed a 13 verified response to Requests for Admissions but was ordered to pay monetary sanctions at the 14 hearing of January 6, 2020. 15 On October 6, 2020, Plaintiffs filed a Motion to Compel Ms. BERRY to produce responses to 16 Supplemental Written Discovery and to submit to a deposition. The discovery in question consisted 17 of Supplemental Interrogatories and Supplemental Request for Production of Documents, both of 18 which were served on July 28, 2020, but never responded to. At the motion hearing of November 9, 19 2020, the Court ordered Ms. BERRY to serve answers to supplemental interrogatories without 20 objection, on or before November 23, 2020. (Exb. A and B.) Ms. BERRY failed to respond to the 21 supplemental discovery on November 23, 2020, and as of this writing, has not served responses to 22 the supplemental written discovery at all. (Coffin Declaration, par. 4.) 23 The Court’s ruling of November 9, 2020 further indicated that “Defendant’s deposition will 24 take place on 12/10/20 at 10:00 a.m.” Ms. BERRY’S deposition was accordingly noticed for 25 December 10, 2020, along with standard language that ‘if for any reason the deposition is not 26 completed, it will be continued from day to day, excluding Sundays and holidays until completed.’ 27 (Exb. C.) However, shortly after the outset of the deposition at 10:00 am., Ms. BERRY announced 28 that she ‘would have to leave by 11:00 a.m.,’ after less than an hour of deposition testimony. She 4 NOTICE OF MOTION AND EX PARTE APPLICATION FOR AN ORDER FOR TERMINATING AND MONETARY SANCTIONS AGAINST DEFENDANT JESSICA BERRY ; DECLARATION; EXHIBITS evaded questions and stated that she would not respond to questions that she deemed “fraudulent.” (See Coffin Declaration, par. 7-10.) Ms. BERRY also spent considerable time on her own narrative characterization of events, which were entirely non-responsive to any question. She also persisted in making ad hominem attacks on counsel. (Id.) Ill. WHEN A PARTY FAILS TO OBEY AN ORDER COMPELLING ANSWERS TO INTERROGATORIES, THE COURT MAY IMPOSE ANY JUST SANCTIONS, INCLUDING ISSUE, EVIDENCE, AND TERMINATING SANCTIONS If a party fails to serve a timely response, and the propounding party moves for and obtains a 10 court order compelling a response, the trial court must impose a monetary sanction against the 11 delinquent party unless that party acted with “substantial justification” or the sanction would 12 otherwise be unjust. (Code of Civil Procedure §§ 2030.290(c), 2031.300(c).) In addition, if that 13 party subsequently disobeys the court’s order compelling a response, the trial court may then “make 14 those orders that are just,” including the imposition of an issue sanction, an evidence sanction, ora 15 terminating sanction. (Code of Civil Procedure §§ 2030.290(c), 2031.300(c).) “In lieu of or in 16 addition” to any of those sanctions, the trial court “may impose a monetary sanction under” section 17 2023.030. 18 “Section 2023.030 authorizes a trial court to impose a monetary sanction against any party or 19 attorney, or both, who has engaged in misuse of the discovery process. Misuses of the discovery 20 process include, among other things, failing to respond or to submit to an authorized method of 21 discovery; making, without substantial justification, an unmeritorious objection to discovery; making 22 an evasive response to discovery; and disobeyinga court order to provide discovery. (section 23 2023.010.)” (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2d Dist, 2007) 24 148 Cal.A pp.4" 390, 404-405, emphasis added.) 25 Numerous cases have affirmed the imposition of terminating sanctions. For example, in 26 Collisson & Kaplan v. Hartounian (2d Dist, 1994) 21 Cal.App.4th 1611, 1613-1615, the court 27 affirmed terminating sanctions awarded after the defendants failed to comply with a single court 28 order to produce documents. In Cornwall v. Santa Monica Dairy Company (1977) 66 Cal.App.3d 5 NOTICE OF MOTION AND EX PARTE APPLICATION FOR AN ORDER FOR TERMINATING AND MONETARY SANCTIONS AGAINST DEFENDANT JESSICA BERRY ; DECLARATION; EXHIBITS 250, 253, a terminating sanction was justified after the plaintiff failed to answer interrogatories within 30 days after being ordered to do so. In Williams v. Travelers Insurance Company (1975) 49 Cal.A pp.3d 805, 810-11, resulted in a terminating sanction after plaintiff twice failed to provide appropriate answers to interrogatories, and failed to pay sanctions. In Laguna Autobody v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 490, a terminating sanction was upheld after the plaintiffs violated court orders requiring them to answer interrogatories and produce documents. Here, Ms. BERRY has consistently flaunted the rules of civil procedure, and she has now ignored this Court’s specific orders. Pursuant to CCP § 2023.030, the Court has the authority to Order Ms. BERRY’s General Denial stricken and enter her default. 10 11 IV ALTERNATIVELY, THE COURT SHOULD ORDER DEFENDANT TO SUBMIT TO 12 A MEANINGFUL DEPOSITION, ANSWER QUESTIONS INA 13 STRAIGHTFORWARD MANNER, AND WAIVE THE SEVEN-HOUR LIMITATION 14 OF CODE OF CIVIL PROCEDURE § 2025.290 15 Code of Civil Procedure section 2025.290(a) provides: 16 (a) Except as provided in subdivision (b), or by any court order, including a case 17 management order, a deposition examination of the witness by all counsel, other than the 18 witness’ counsel of record, shall be limited to seven hours of total testimony. The 19 court shall allow additional time, beyond any limits imposed by this section, if 20 needed to fairly examine the deponent or if the deponent, another person, or any 21 other circumstance impedes or delays the examination. 22 Here, Ms. BERRY has undermined the deposition process by refusing to respond to any 23 question that she deems “fraudulent.” While the rationale behind this objection is unclear, she 24 specifically refused to answer questions about the demand letter written by her prior counsel 25 Valentine & Reese, which initiated this case. (Coffin Declaration, par. 7.) She also flatly refused 26 to answer questions about her lease, which she has referred to several times as “fraudulent.” (Id.) 27 1 28 1 6 NOTICE OF MOTION AND EX PARTE APPLICATION FOR AN ORDER FOR TERMINATING AND MONETARY SANCTIONS AGAINST DEFENDANT JESSICA BERRY ; DECLARATION; EXHIBITS Vv. CONCLUSION Based on the foregoing, Plaintiffs respectfully request that the Court Order Defendant BERRY’s General Denial stricken and her default entered. In the alternative, Plaintiffs request that the Court Re- Order Ms. BERRY to: 1.) provide complete, verified responses to Plaintiffs supplemental discovery without objections by a date certain; 2.) to waive the CCP § 2025.290 seven-hour deposition limit in Ms. BERRY’s case, and 3,) Order Ms. BERRY to respond to all deposition questions regarding leases, demand letters, and any other issues in the case, regardless of whether she personally deems them “fraudulent.” 8 Respectfully submitted, 9 10 DATED: February 1, 2021 MARK T. COFFIN, P.C. 1 12 By: 13 Mai Coffin Attormeys for Plaintiffs DAVID G. BERTRAND 14 and DOROTHY CHURCHILL-JOHNSON 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 NOTICE OF MOTION AND EX PARTE APPLICATION FOR AN ORDER FOR TERMINATING AND MONETARY SANCTIONS AGAINST DEFENDANT JESSICA BERRY; DECLARATION; E: HBITS DECLARATION OF MARK T. COFFIN IN SUPPORT OF EX PARTE APPLICATION I, Mark T. Coffin, declare: I am an attorney licensed to practice law in the State of California, and the principal of the Law Office of Mark T. Coffin, P.C. I am the attomey of record for Plaintiffs David Bertrand and Dorothy Churchill-Johnson in the above-captioned litigation. If called upon as a witness, I could and would competently testify to the following facts, under oath, from my own personal knowledge. This Declaration is submitted in support of Plaintiffs’ Ex Parte A pplication for an Order for Terminating and Monetary Sanctions 10 against Defendant Jessica Berry. 11 Attached as ExhibitA is a true and correct copy of the Court’s November 9, 2020 12 Tentative Ruling on my clients’ Motion to Compel Responses to Supplemental Written 13 Discovery. At the hearing, the Court affirmed the Tentative Ruling, and Ordered Ms. 14 Berry to serve verified responses to my clients’ supplemental discovery by no later than 15 November 23, 2020. The ruling also required Ms. Berry to submit to a deposition on 16 December 10, 2020 at 10:00 a.m. 17 Attached as Exhibit B is a true and correct copy of the December 1, 2020 Notice of 18 Order on Plaintiffs’ Motion for Trial Setting Preference and Motion to Compel 19 Defendant’s Written Responses to Discovery and Deposition, filed by my office and 20 served on Ms. Berry. 21 As of this writing, I have not received verified written responses from Ms. Berry to the 22 Supplemental Discovery as Ordered by the Court in Exhibits A and B. 23 Attached as Exhibit C is a true and correct copy of the Notice of Taking Remote Web 24 & Digital Deposition of Jessica Berry in Lieu of In-Person, served by my office on 25 November 13, 2020. 26 Attached as Exhibit D is a true and correct copies of selected pages of the condensed 27 transcript of Ms. Berry’s deposition testimony on December 10, 2020. 28 |}/// 8 NOTICE OF MOTION AND EX PARTE APPLICATION FOR AN ORDER FOR TERMINATING AND MONETARY SANCTIONS AGAINST DEFENDANT JESSICA BERRY ; DECLARATION; EXHIBITS 7. Ather deposition, I inquired whether Ms. Berry had prepared responses to the supplemental written discovery as ordered. She responded that she would ‘refuse to answer questions about a lease, and about a demand letter written by her prior counsel Valentine & Reese. (See Exb. D, p. 11:13-12:10.) When asked if she would produce verified responses to the supplemental discovery, she responded “I will agree to reply to things that are not frauds.” (33:3-8.) When asked when she would produce verified supplemental responses, she launched into a narrative accusation against Plaintiff's counsel, and revisited requests made in her prior motions such as appointment of a Discovery Master, which the court has already denied. (See Exb. D, p. 34:14-35:23.) 10 Although she promised to produce supplemental responses on January 15, 2021, she 11 has not done so. (See Exb. D, p. 35:21-37:4.) 12 Ms. Berry refused to respond to a simple question about where she was physically 13 located at the time she gave her testimony. (See Exb. D, p. 10:8-25.) 14 My impression of Ms. Berry’s attitude about the deposition is that she unwilling to 15 answer questions in a straightforward, factual manner. Instead, she sought to fill the 16 record with argument and purely subjective narrative about her own legal conclusions. 17 (See, e.g., Exb. D., pp. 28:2-22; pp. 30:8-32:18; pp. 33:15-11; p. 37:6-25.) It soon 18 became clear to me that Ms. Berry would not voluntarily cooperate with the deposition 19 process, without further Court action. 20 10 The deposition commenced at 10:10 a.m. Less than an hour into the deposition, Ms. 21 Berry announced that she had to ‘leave in 15 to 20 minutes.’ (See Exb. D, p. 29:2- 22 30:1.) The deposition concluded at 11:03 a.m., after less than an hour. (See Exb. D, p. 23 1, 41.) 24 11. Attached as Exhibit E is a true and correct copy of the email sent by my office to 25 Defendant Jessica Berry, notifying her of this Ex Parte hearing. The matter is exigent 26 because percipient discovery in this case is cut off on February 5, 2021. 27 /N/ 11 28 |}/// 9 NOTICE OF MOTION AND EX PARTE APPLICATION FOR AN ORDER FOR TERMINATING AND MONETARY SANCTIONS AGAINST DEFENDANT JESSICA BERRY ; DECLARATION; EXHIBITS 12. Attached as Exhibit F is the Court’s Zoom information for this hearing. I declare under the laws of the State of California that the foregoing is true and correct, and that this Declaration was executed on February 1, 2021 at Santa Barbara, California. . Coffin, Declarant 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 oT 28 10 NOTICE OF MOTION AND EX PARTE APPLICATION FOR AN ORDER FOR TERMINATING AND MONETARY SANCTIONS AGAINST DEFENDANT JESSICA BERRY; DECLARATION. HIBITS 10 11 12 EXHIBIT A 13 14 15 Superior Court of California 16 County of Santa Barbara 17 Minute Order 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT A SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA BARBARA Dated and Entered: 11/09/2020 Time: 10:00 AM Judicial Officer: Colleen K Sterne Deputy Clerk: Kary Swan Dept: SB Dept 5 Deputy Sheriff: Michael Hollon Court Reporter: Shelley Cockrell Case No: 19CV02429 David G Bertrand et al vs Jessica Berry Parties Present: Berry, Jessica Defendant Coffin, Mark T Attorney for Plaintiff NATURE OF PROCEEDINGS: Motion: Compel Responses, Motion: Trial Setting Preference Parties appeared by Zoom and presented oral argument. Defendant's deposition shall take place on 12/10/20 at 10:00 a.m. Tentative is affirmed. Counsel shall prepare the order. Future Scheduled Hearing: March 08, 2021 11:30 AM Trial Confirmation Conference SB Dept 5 Sterne, Colleen K Tentative Ruling: (1) The court grants, in part, plaintiffs David G. Bertrand and Dorothy Churchill-Johnson’s Motion to Compel Responses to Supplemental Written Discovery, and Motion to Compel Deposition of Defendant Jessica Berry, and orders that, on or before November 23, 2020, defendant Jessica Barry shall serve answers to the supplemental interrogatories served in this case on July 27, 2020, without objections. The court denies the motion in all other respects, including the request for a monetary sanction. (2) The court grants plaintiffs David G. Bertrand and Dorothy Churchill-Johnson’s motion for trial preference under CCP § 36(a). The court sets this matter for trial on [A DATE BEFORE MARCH 9, 2020] at [TIME]. Background: On May 7, 2019, plaintiffs David G. Bertrand and Dorothy Churchill-Johnson filed their complaint against defendant Jessica Berry for 1) libel, 2) defamation per se, 3) intrusion, 4) intentional infliction of emotional distress, 5) unfair business practices, 6) elder abuse, 7) quantum meruit, and 8) unjust enrichment/restitution. The court entered Berry’s default. Later, the court granted Berry’s motion for relief from default. SC-2411 (Revised July 1, 2013) MINUTE ORDER In a minute order dated October 28, 2019, the court ordered that this case is related to the case of Jessica Berry v. David Bertrand, Case No. 19CV02357. That case is David Bertrand’s appeal ofa Labor Commissioner award in Berry’s favor (hereinafter “the Labor appeal”). Bertrand is represented by the same counsel in both cases and that counsel also represents Churchill-Johnson in this case. In the Labor appeal, Berry is represented by counsel but she is unrepresented in this case. Importantly, “related cases” are not “consolidated” for any purpose. Related cases maintain their separate identities, but are heard by the same trial judge. “Absent a stipulation to consolidate, a noticed and written motion to consolidate is required.” Sutter Health Uninsured Pricing Cases, 171 Cal.App.4th 495, 514 (2009); CCP § 1048; CRC 3.350. (The court is not suggesting there are grounds for consolidation. The cases do not appear to have common questions of law or fact.) Motion to Compel Responses to Supplemental Discovery and to Compel Defendant Berry’s Deposition: Plaintiffs Bertrand and Churchill-Johnson filed a motion in this case to compel responses to supplemental interrogatories and supplemental request for production of documents in this case and to supplemental interrogatories and supplemental request for production of documents in the Labor appeal. Counsel for plaintiffs says he has received no responses to this discovery. [Coffin Dec. 13] Plaintiffs also move to compel Berry’s deposition. They seek a monetary sanction of $2,695. On October 27, Berry filed her “Objection to Appellants Motion to Compel Deposition.” She requests a monetary sanction of $2,695. Berry also asks the court to appoint a special master to oversee discovery. Piecing together the chronology of what transpired in this case is very difficult because Mr. Coffin’s declaration consisting of eight exhibits and 82 pages (one of the exhibits consists of 37 pages) does not comply with CRC 3.1110(f)(4), which provides that “electronic exhibits must include electronic bookmarks with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or letter and briefly describe the exhibit.” Counsel has made it very difficult to review the exhibits. Berry, too, fails to provide bookmarks for the exhibits attached to her opposition. 1 Requests for Production and Interrogatories: On July 27, 2020, plaintiffs served a supplemental request for production of documents and supplemental interrogatories on Berry in both this case and the Labor appeal. She has not responded. Berry filed an opposition on her own behalf. Her counsel in the Labor appeal has not filed anything, which is not surprising as he does not represent Berry in the case in which the motion was filed. The confusion generated by plaintiffs’ motion is reflected in plaintiffs’ reply. In the reply, plaintiffs’ counsel refers to an untimely opposition signed by Berry's counsel in the Labor appeal. The court finds no such opposition filed in the Labor appeal or in this case. Plaintiffs provide no authority for issuing an order in this case for the discovery in the related Labor appeal. The court denies the motion to the extent it seeks an order compelling responses to discovery in the Labor appeal. A party who fails to serve timely responses to interrogatories or a request for production waives any objection to the interrogatories or requests. CCP §§ 2030.290(a) and 2031.300(a). The party propounding the discovery may move to an order compelling a response. CCP §§ 2030.290(b) and 2031.300(b). In her objection, Berry says that counsel for plaintiffs “knowingly brought fraudulent documents of his own creation into the discovery process, and then demanded MISS BERRY do the impossible — answer SC-2411 (Revised July 1, 2013) MINUTE ORDER questions pertaining to those fraudulent documents.” Specifically, she complains of a fraudulent lease on which an allegedly unwarranted unlawful detainer action was based. (There was an unlawful detainer action that resulted in a stipulated judgment on December 14, 2017 (Case No. 17CV04551). That is a final judgment.) She also refers to a “FAUX ‘DEMAND LETTER’.” Berry does not say what the interrogatories are that ask about these documents but she can address any invalidity of documents in her answers. Berry complains of actions by her attorney in the Labor appeal. She says she had to withdraw prior answers to discovery because of counsel’s conduct. But those responses are not the subject of the current motion. She says her counsel obtained her Apple ID and password but that is not pertinent to the current motion. If Berry is unhappy with her counsel in the Labor appeal, she can seek other counsel. Berry claims to have evidence that suggests that the judge in this case is biased. (Berry has not filed verified statement objecting to the judge hearing matters in this case pursuant to CCP § 170.3(c).) Berry bases her suggestion of bias on a statement from the Santa Barbara District Attorney’s office that her Labor Board award is being thrown out. The communication attached as Exhibit 9 to the opposition states that the Labor Commissioner rejected a claim of wage theft. The court has not thrown out anything and the appeal of the Labor Commissioner’s award is pending. Berry also complains that plaintiffs’ counsel has refused to provide her with discovery she requested seven months ago. She alleges abuse and bullying by plaintiff Bertrand. Those are matters that are not before the court. At issue is solely Berry's failure to respond to the supplemental discovery. Berry wants a master appointed to oversee discovery. At this point, the discovery issues are not complex and both parties have access to the court to resolve any discovery disputes. The motion is straightforward as to the failure to respond to the supplemental interrogatories and request for production in this case. Berry did not file a timely response, so she must respond, without objection. 2. Deposition: Plaintiffs move to compel Berry’s deposition. On July 30, 2020, plaintiffs’ counsel served on Berry a notice of taking remote web & digital deposition with a date for the deposition on September 9. [Exhibit E] The caption of the notice is the caption for the Labor appeal. (The caption introduces another concept, indicating that the Labor appeal is “coordinated with” this case. The cases have not been coordinated under CCP § 403, § 404, or otherwise. Coordination applies to cases pending in different courts. Even coordinated cases are not necessarily consolidated.) The parties engaged in a series of communications regarding discovery and Berry's counsel's status. On September 2, Berry said the deposition date would need to be rescheduled for after the CMC on September 21 because of health issues and “logistical complications.” [Exhibit G, 018] Plaintiffs’ counsel responded that he would reschedule the deposition if, and only if, Berry and counsel provided a date on which they were both available and it should be before the CMC on September 21. [Exhibit G, 019] Having not received confirmation ofa new date, plaintiffs’ counsel wrote Berry and her counsel, asking for confirmation of availability on September 16. [Exhibit G, 023] Berry's counsel replied that he was available but could not say whether Berry was. [Exhibit G, 024] On September 4, plaintiffs’ counsel said he would notice the deposition “for that date.” [Exhibit G, 025] SC-2411 (Revised July 1, 2013) MINUTE ORDER On September 8, Plaintiffs’ counsel served a first amended notice of taking remote web & digital deposition in the Labor appeal, setting a deposition on September 17. [Exhibit F] On September 17, plaintiffs’ counsel and Berry's counsel appeared for the deposition but Berry did not. Plaintiffs’ counsel took Berry’s nonappearance on the record. [Coffin Dec. 146] The amended notice set a date that was less than 10 days after service—a violation of CCP § 2025.270(a). This was not an agreed date. Notice of a unilaterally set date must give at least 10 days’ notice. Plaintiffs cite no authority for the 10 day notice not applying to subsequent notices of a deposition. Because the notice is faulty, the court will not compel a deposition. Also, no deposition has been noticed in this case. This motion should have been filed in the Labor appeal. It appears that the parties have attempted to schedule a single deposition for the two cases, which is admirable. But that requires an agreement of all parties—plaintiffs through counsel, Berry as an individual in this case, and Berry through counsel in the Labor appeal. (It would seem that Berry would only want to be deposed once.) 3. Monetary Sanction: The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories or request for production, “unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” CCP §§ 2030.290(c) and 2032.300(c). The court is not granting the relief requested with respect to the deposition, so no monetary sanction is available under CCP § 2025.450(g). Given the state of the pleadings, including the attempt to file a motion in one case and obtain orders related to another case and the failure to comply with CRC 3.1110(f)(4), the court concludes that circumstances make the imposition of the sanction unjust. The court denies all requests for monetary sanctions. 4. Order: The court grants, in part, plaintiffs David G. Bertrand and Dorothy Churchill-Johnson’s Motion to Compel Responses to Supplemental Written Discovery, and Motion to Compel Deposition of Defendant Jessica Berry, and orders that, on or before November 23, 2020, defendant Jessica Barry shall serve answers to the supplemental interrogatories served in this case on July 27, 2020, without objections. The court denies the motion in all other respects, including the request for a monetary sanction. Motion for Trial Preference: Plaintiffs move for a trial preference under CCP § 36 and CRC 3.1335. From plaintiffs’ reply, it appears that Berry served an objection to the motion but there is not one on file with the court. (The court clerk did reject an objection on October 27 for lack of original signatures. That may be the one served on plaintiffs.) CCP § 36(a) provides: “A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings: (1) The party has a substantial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation.” CCP § 36(d) provides: “In its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference.” There is no declaration regarding either plaintiff's prospects for survival, so subdivision (d) does not apply. SC-2411 (Revised July 1, 2013) MINUTE ORDER Plaintiff Bertrand is 91 years old and plaintiff Churchill-Johnson is 78 years old. Bertrand’s treating physician, Brittany Bryan, M.D., has supplied a declaration stating that, in addition to his advanced age, an expedited trial is necessary because he suffers from coronary artery disease; is a heart attack survivor who has already had an operation to place a stent; suffers from hypertension and high cholesterol; suffers from glaucoma, causing extremely limited vision; and recently suffered from debilitating back pain. [Bryan Dec. 11-4] In the past six months, Bertrand’s physical condition has deteriorated, in that he tires easily and quickly and his back pain has made it difficult for him to move and focus his attention for extended periods of time. [Coffin Dec. 113] According to the reply, Berry does not oppose the trial preference but wants an expedited trial in Jessica Berry v. David Bertrand and Barbara Palomarez, Case No. 20CV02941, filed on September 9, 2020. She cannot seek a trial preference in a separate case in her responsive pleading in this case. Even in the appropriate case, the person entitled to preference must petition the court. The opposing party cannot do that for him. In this context, the court observes that plaintiffs have again sought to seek an order applicable to a related case. There is no authority for doing that. The cases are still separate and Bertrand would have to bring a separate motion in the Labor appeal. The court finds that Bertrand meets the criteria for mandatory trial preference under CCP § 36(a). The court will grant the motion in this case only, not the Labor appeal. CCP § 36(f) requires the court to set the matter for trial not more than 120 days from granting the motion. The court may only continue the trial beyond that period for physical disability of a party or a party’s attorney, or upon a showing of good cause stated in the record. “Any continuance shall be for no more than 15 days and no more than one continuance for physical disability may be granted to any party.” In their most recent case management statements, all parties request a jury trial. This creates a problem in light of difficulties assembling juries during the COVID-19 pandemic. So far, the court has only assembled juries for felony criminal trials, which must be brought to trial within 60 days of arraignment (with extensions under Gov't Code § 68115 due to the pandemic, which extensions expired on August 17). Itis unlikely a civil jury will be impaneled before Spring or Summer 2021, if then. While the state of the court's calendar is a factor to be considered when ruling on a motion for discretionary trial preference, calendar congestion alone is no reason to deny a motion for trial preference. Dick v. Superior Court, 185 Cal.App.3d 1159, 1167 (1986). “[I]t is monstrous to deny a forum to a plaintiff simply because the procedure of the courts has been too slow.” Salas v. Sears, Roebuck & Co., 42 Cal.3d 342, 349 (1986). There appears to be no authority for considering the court's calendar in ruling on mandatory preference under CCP § 36(a). A pandemic is not merely court congestion or slow court procedures. As noted in the California Chief Justice’s order of April 29, 2020, the Governor has declared a state of emergency. “The CDC, the California Department of Public Health, and local county health departments have recommended stringent social distancing measures of at least six feet between people and encouraged vulnerable individuals to avoid public spaces. The continuous operation of our courts is essential for our constitutional form of government, and for providing due process and protecting the public. However, courts are clearly places of high risk during this pandemic because they require gatherings of judicial officers, court staff, litigants, attorneys, witnesses, defendants, law enforcement, and juries—well in SC-2411 (Revised July 1, 2013) MINUTE ORDER excess of the numbers allowed for gathering under current executive and health orders.” Judicial Council Statewide Emergency Order, April 29, 2020. The court must grant the motion for trial preference. However, the court is advising the parties that it will likely be necessary to grant successive 15-day continuances (unless the parties stipulate to longer continuances). The Los Angeles Superior Court has taken the position that the current COVID-19 pandemic meets the definition of good cause under CCP § 36(f). http://www.lacourt.org/pdf/COVID- 19FAQsCivilLitigation-04222020.pdf. This court is inclined to agree. While CCP § 36(f) limits to one a continuance for physical disability of any party, there is no limitation on the number of 15-day continuances that the court may grant due to “good cause.” The court grants plaintiffs David G. Bertrand and Dorothy Churchill-Johnson’s motion for trial preference under CCP § 36(a). The court sets this matter for the Trial Confirmation Conference on March 8, 2021 at 11:30 a.m. in Department 5. DARREL E. PARKER, EXECUTIVE OFFICER Minutes Prepared by: Kary Swan , Deputy SC-2411 (Revised July 1, 2013) MINUTE ORDER 10 11 12 EXHIBIT B 13 14 15 Order on Plaintiffs’ Motion for Trial Setting Preference 16 and Motion to Compel Defendant's Written Responses 17 to Discovery and Deposition 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT B Pursuant to CRC 2.259 this document has been electronically filed by the Superior Court of California, County of Santa Barbara, on 11/10/2020 Mark T. Coffin, State Bar No. 168571 FILED MARK T. COFFIN, P.C. SUPERIOR COURT of CALIFORNIA 21 E. Carrillo Street, Suite 240 COUNTY of SANTA BARBARA Santa Barbara, California 93101 22/01/2020 Telephone: (805) 248-7118 Darrel E. Parker, Executive Officer BY Chavez, Terri Hautes I Facsimile: (866) 567-4028 Email: mtc@markcoffinlaw.com Deputy Clerk Attorneys for Plaintiff DAVID G. BERTRAND and DOROTHY CHURCHILL-JOHNSON SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF SANTA BARBARA 10 DAVID G. BERTRAND, an Individual, Case No. 19CV02429 DOROTHY CHURCHILL-JOHNSON, an 11 Individual, {PROPOSED} ORDER ON PLAINTIFFS’ MOTION FOR TRIAL 12 Plaintiff, SETTING PREFERENCE AND 13 VS. MOTION TO COMPEL DEFENDANT’S WRITTEN 14 JESSICA BERRY, an Individual, and DOES 1 RESPONSES TO DISCOVERY AND through 100, Inclusive, DEPOSITION 15 Defendants. Date: Monday, November 09, 2020 16 Time: 10:00 a.m. 17 Dept: 5 18 Assigned for all purposes to the Hon. Colleen K. Sterne 19 Dept: 5 Complaint Date: May 7, 2019 20 Trial Date: No Trial Date Set 21 22 23 24 25 26 27 28 1 [PROPOSED] ORDER ON PLAINTIFFS’ MOTION FOR TRIAL SETTING PREFERENCE AND MOTION TO. COMPEL WRITTEN RESPONSES FROM JESSICA BERRY "[PROPOSED] ORDER Based upon the moving and opposition papers, the oral argument of the parties at the hearing on this Motion, and for GOOD CAUSE SHOWN, it is Ordered that: 1 Plaintiffs, DAVID G. BERTRAND and DOROTHY CHURCHILL-JOHNSON’s Motion to Compel supplemental written responses from Defendant, JESSICA BERRY is granted. Defendant, JESSICA BERRY shall provide supplemental written responses to Plaintiffs’ supplemental discovery (Supplemental Interrogatories and Supplemental Requests for Production), without objections, by no later than November 23, 2020. Plaintiffs, DAVID G. BERTRAND and DOROTHY CHURCHILL-JOHNSON’s Motion for 10 Trial Setting Preference is granted. Jury trial of this case is set for March 8, 2021, at 11:30 11 a.m. in Department 5 of the above-captioned Court. It may be necessary for the Court to 12 grant successive 15-day continuances (unless the parties stipulate to longer continuances) due 13 to the current COVID-19 pandemic and for good cause under the California Code of Civil 14 Procedure§ 36(f). 15 Following Plaintiffs’ proper service ofa notice of deposition, the deposition of Defendant 16 JESSICA BERRY shall take place on December 10, 2020, at 10:00 a.m, via remote internet 17 platform. 18 This Order shall not pertain to Santa Barbara Superior Court Case Number 19CV02357. 19 Plaintiffs’ request for monetary sanctions is denied, and Defendant’s request for appointment 20 ofa Special Master is denied. 21 22 IT IS SO ORDERED. 23 24 DATED: 12/01/2020 SE Honorable Judge of the Superior Court 25 Colleen K. Sterne 26 27 28 2 [PROPOSED] ORDER ON PLAINTIFFS’ MOTION FOR TRIAL SETTING PREFERENCE AND MOTION TO. COMPEL WRITTEN RESPONSES FROM JESSICA BERRY PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SANTA BARBARA I am employed in the County of Santa Barbara, State of California. I am over the age of 18 years and not a party to this action. My business address is 21 E. Carrillo Street, Suite 240, Santa Barbara, California 93101. On November 10, 2020, I served the foregoing documents described as [PROPOSED] ORDER ON PLAINTIFFS’ MOTION FOR TRIAL SETTING PREFERENCE AND MOTION TO COMPEL DEFENDANT’S WRITTEN RESPONSES TO DISCOVERY AND DEPOSITION, on the interested parties in this action: Address Party Jessica Berry JESSICA BERRY, in pro per. P.O. Box 541 10 Santa Ynez, CA 93460 ll And 12 Jessica Berry i P.O. Box 432 13 Solvang, CA 93464 14 as 15 16 17 x BY U.S. MAIL: This document was served by United States mail through the US Postal Service. I enclosed the document in a sealed envelope or package addressed to the person(s) at the address(es) above and placed the envelope(s) for collection and mailing, following our ordinary business practices. | am readily familiar with this firm’s practice of collecting and processing correspondence for mailing. On the same day that correspondence is placed for 18 collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service at Santa Barbara, California, in a sealed envelope with postage fully 19 paid, 20 VIA EMAIL: I served the documents above on all parties via electronic mail, to the addresses as listed on the attached service list, following my employer’s business practice for 21 collection and processing of correspondence. Such electronic transmission was reported as complete and without error on this date. 22 (State) I declare under penalty of perjury under the laws of the State of California that the 23 foregoing is true and correct. gu 24 Executed on November 10, 2020, at Santa Barbara, Californi