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1 William L. Alexander (State Bar Number 126607)
Elizabeth Estrada (State Bar Number 232302)
2 Alexander & Associates, PLC
3 1925 G Street
Bakersfield, CA 93301
4 Phone: (661) 316-7888
Email: walexander@alexander-law.com; elizabeth@alexander-law.com
5
6 Attorneys for Defendants, Thomas H. Fry and Ruth M. Fry
as Trustees of the T & R Fry Family Trust
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF KERN – METROPOLITAN DIVISION
10
11 ) Case No. BCV-17-102341 BCB
BIG WASHINGTON, LLC, a California
Limited Liability Company, )
12
) OPPOSITION OF DEFENDANTS TO
13 Plaintiff, ) PLAINTIFF’S EX PARTE APPLICATION
) TO ADVANCE DEPOSITION DATE FOR
14 ) STEPHANIE SMITH SET BY THE COURT
vs.
)
15 ) Assigned to: Hon. Bernard C. Barmann
BENHONG (AMERICA) RECYCLING CO.
16 LTD, a California Limited Liability Company; ) Div.: H
and THOMAS H. FRY and RUTH M. FRY as )
17 Trustees of the T & R FRY FAMILY TRUST; ) Date: March 3, 2022
and DOES 1 – 100, inclusive, ) Time: 8:30 a.m.
18 ) Div.: H
19 Defendants. )
) Complaint Filed: October 6, 2017
20 ) Trial Date: May 31, 2022
)
21 )
22 )
)
23
24 After months of Big Washington’s excuses and delays, this Court compelled the depositions
25 to take place in Bakersfield on April 5, 6, and 7, 2022. This Court did not randomly select those dates.
26 Big Washington offered those dates in open court on February 4, 2022 and represented that such dates
27 were available and agreeable to them. Now, however, Big Washington has manufactured yet another
28 excuse: the Smiths’ “move” to Florida makes it inconvenient for them to be deposed on the dates they
1
Alexander & Associates
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
FRYS’ OPPOSITION TO BIG WASHINGTON’S EX PARTE APPLICATION TO
ADVANCE THE DEPOSITION DATE FOR STEPHANIE SMITH
1 chose.
2 The Smiths argue that one parent must remain in Florida to watch the children while the other
3 flies to California to be deposed. The holes in this argument are obvious. First, the Smiths (the
4 principals of Big Washington) knew that they had moved to Florida when Big Washington selected
5 the April 5-7 dates, yet they did not raise child-care as an issue. Second, the Smiths knew they were
6 subject to an order requiring them personally to attend their depositions in Bakersfield when they got
7 onto a plane to Florida. They cannot now use that as an excuse for modifying this Court’s order. And
8 given the history of difficulty in scheduling depositions in this case, the Court’s order should not be
9 modified.
10 Moreover, Frys’ counsel is set to commence a jury trial on or about March 9, 2022 that is
11 expected to last through March 31, 2022. For these reasons, the Frys request that this Court not modify
12 its February 4, 2022 order.
13 ARGUMENT
14 I
15 THERE ARE NO NEW FACTS OR CIRCUMSTANCES JUSTIFYING MODIFICATION
16 OF THIS COURT’S FEBRUARY 4, 2022 ORDER
17 On February 4, 2022, this Court heard the Frys’ motion for discovery sanctions for Big
18 Washington’s defiance of this Court’s prior order compelling the depositions of Stephanie Smith,
19 Martin Smith, Ben Eilenberg, and Big Washington’s person most knowledgeable. At the February 4,
20 2022 hearing, Big Washington noted that the Smiths were in Florida with their five children due to
21 Covid. The Court again compelled the witnesses to attend their depositions in Bakersfield and asked
22 Big Washington for available dates. Big Washington offered April 5, 6, and 7.
23 When Big Washington offered the April dates for deposition, it did not condition those dates
24 or indicate that one parent would have to remain in Florida while the other is deposed in California.
25 The April dates were selected specifically to obtain “dates certain” and to give the Smiths adequate
26 time to arrange their travel plans. Since the February 4, 2022 hearing, nothing of any significance has
27 changed. There are no new facts or circumstances. Ultimately, the Smiths knew they were subject to
28 an order requiring them to submit to in-person depositions when they chose to get on a plane to Florida.
2
Alexander & Associates
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
FRYS’ OPPOSITION TO BIG WASHINGTON’S EX PARTE APPLICATION TO
ADVANCE THE DEPOSITION DATE FOR STEPHANIE SMITH
1 They should not be allowed to use their voluntary travels as an excuse for modifying this Court’s
2 order.
3 II
4 THE DEPOSITION DATES SHOULD NOT BE MODIFIED GIVEN THE HISTORY OF
5 THIS CASE. IN ADDITION, FRYS’ COUNSEL MAY NOT BE AVAILABLE ON THE
6 DATES PROPOSED BY STEPHANIE SMITH
7 This Court is aware of the history in this case and that depositions have been scheduled multiple
8 times, only to be cancelled. This Court ordered that the deposition take place on a date certain. All
9 parties and counsel are available on April 5, 2022 and given the history in this case, that date should
10 not be changed.
11 Moreover, Frys’ counsel likely will be unavailable on Big Washington’s proposed dates of
12 March 29-31. Frys’ counsel was advised on March 2, 2022 that a jury trial that had been trailing is
13 scheduled to commence on or about March 8, 2022. The trial is scheduled for a 10-day jury, but the
14 trial court is dark March 14-18, 2022. Frys’ counsel expects the trial to last through March 31, 2022.
15 Therefore, Fry’s counsel may not be available on the proposed dates.
16 III
17 CONCLUSION
18 The ex parte application should be denied. There is no good cause to modify this Court’s
19 previous order setting the deposition on April 5, 2022 and Frys’ counsel likely is unavailable on the
20 dates proposed by Big Washington.
21
22 DATED: March 2, 2022 ALEXANDER & ASSOCIATES, PLC
23
24 By: /s/ William L. Alexander /s/
WILLIAM L. ALEXANDER
25 Attorneys for Defendants, Thomas H. Fry
and Ruth M. Fry as Trustees of the
26 T & R Fry Family Trust
27
28
3
Alexander & Associates
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
FRYS’ OPPOSITION TO BIG WASHINGTON’S EX PARTE APPLICATION TO
ADVANCE THE DEPOSITION DATE FOR STEPHANIE SMITH
1 PROOF OF SERVICE (C.C.P. §1013a, 2015.5)
2 I am employed in the County of Kern, State of California. I am over the age of 18 and not a
3 party to the within action; my business address is 1925 G Street, Bakersfield, California.
4 On March 2, 2022, I served the foregoing documents entitled OPPOSITION OF
DEFENDANTS TO PLAINTIFF’S EX PARTE APPLICATION TO ADVANCE DEPOSITION
5 DATE FOR STEPHANIE SMITH and DECLARATION OF ELIZABETH ESTRADA IN
6 SUPPORT OF OPPOSITION OF DEFENDANTS TO PLAINTIFF’S EX PARTE APPLICATION
TO ADVANCE DEPOSITION DATE FOR STEPHANIE SMITH
7
on interested parties in this action as follows:
8
9 Richard B Jacobs Attorneys for Plaintiff, BIG WASHINGTON, LLC
LAW OFFICE OF RICHARD JACOBS
10 13512 Hatteras Street
Van Nuys, CA 91401-4517
11 Email: richardjacobslaw@gmail.com
12
[ ] BY MAIL: Pursuant to C.C.P. §1013(a). By placing ( ) the original or (X) a true copy thereof
13 enclosed in a sealed envelope. I am readily familiar with the firm’s practice of collection and
processing of documents for mailing. Under that practice it would be deposited with the United
14 State Postal Service on that same day with postage thereon fully prepaid at Bakersfield,
15 California in the ordinary course of business.
16 [X] BY E-MAIL OR ELECTRONIC TRANSMISSION: Pursuant to C.C.P §1010.6, subsection
(e)(1), I caused the document(s) to be emailed to the person(s) at the email address(es) on the
17 attached service list. No electronic message or other indication that the transmission was
18 unsuccessful was received within a reasonable time after the transmission.
19 [ ] (BY PERSONAL SERVICE), pursuant to C.C.P. §1011, by placing a true copy thereof
enclosed in an envelope and caused such envelope to be delivered by hand to the office(s) of the
20 addresses(s).
21 [ ] (BY OVERNIGHT COURIER), pursuant to C.C.P. §1013(c)(d), I caused such envelope with
22 delivery fees prepaid to be sent by GENERAL LOGISTICS SYSTEMS, INC. (GSL).
23
Executed on March 2, 2022, at Bakersfield, California.
24
25 [X] (STATE) I declare under penalty of perjury under the laws of the State of California that
the above is true and correct.
26
[ ] (FEDERAL) I declare that I am employed in the office of a member of the bar of this court at
27 whose direction the service was made.
28
/s/ Rocki L. Parnell /s/
ROCKI L. PARNELL
Alexander & Associates
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
Preview
1 William L. Alexander (State Bar Number 126607) Elizabeth Estrada (State Bar Number 232302) 2 Alexander & Associates, PLC 3 1925 G Street Bakersfield, CA 93301 4 Phone: (661) 316-7888 Email: walexander@alexander-law.com; elizabeth@alexander-law.com 5 6 Attorneys for Defendants, Thomas H. Fry and Ruth M. Fry as Trustees of the T & R Fry Family Trust 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF KERN – METROPOLITAN DIVISION 10 11 ) Case No. BCV-17-102341 BCB BIG WASHINGTON, LLC, a California Limited Liability Company, ) 12 ) OPPOSITION OF DEFENDANTS TO 13 Plaintiff, ) PLAINTIFF’S EX PARTE APPLICATION ) TO ADVANCE DEPOSITION DATE FOR 14 ) STEPHANIE SMITH SET BY THE COURT vs. ) 15 ) Assigned to: Hon. Bernard C. Barmann BENHONG (AMERICA) RECYCLING CO. 16 LTD, a California Limited Liability Company; ) Div.: H and THOMAS H. FRY and RUTH M. FRY as ) 17 Trustees of the T & R FRY FAMILY TRUST; ) Date: March 3, 2022 and DOES 1 – 100, inclusive, ) Time: 8:30 a.m. 18 ) Div.: H 19 Defendants. ) ) Complaint Filed: October 6, 2017 20 ) Trial Date: May 31, 2022 ) 21 ) 22 ) ) 23 24 After months of Big Washington’s excuses and delays, this Court compelled the depositions 25 to take place in Bakersfield on April 5, 6, and 7, 2022. This Court did not randomly select those dates. 26 Big Washington offered those dates in open court on February 4, 2022 and represented that such dates 27 were available and agreeable to them. Now, however, Big Washington has manufactured yet another 28 excuse: the Smiths’ “move” to Florida makes it inconvenient for them to be deposed on the dates they 1 Alexander & Associates Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 FRYS’ OPPOSITION TO BIG WASHINGTON’S EX PARTE APPLICATION TO ADVANCE THE DEPOSITION DATE FOR STEPHANIE SMITH 1 chose. 2 The Smiths argue that one parent must remain in Florida to watch the children while the other 3 flies to California to be deposed. The holes in this argument are obvious. First, the Smiths (the 4 principals of Big Washington) knew that they had moved to Florida when Big Washington selected 5 the April 5-7 dates, yet they did not raise child-care as an issue. Second, the Smiths knew they were 6 subject to an order requiring them personally to attend their depositions in Bakersfield when they got 7 onto a plane to Florida. They cannot now use that as an excuse for modifying this Court’s order. And 8 given the history of difficulty in scheduling depositions in this case, the Court’s order should not be 9 modified. 10 Moreover, Frys’ counsel is set to commence a jury trial on or about March 9, 2022 that is 11 expected to last through March 31, 2022. For these reasons, the Frys request that this Court not modify 12 its February 4, 2022 order. 13 ARGUMENT 14 I 15 THERE ARE NO NEW FACTS OR CIRCUMSTANCES JUSTIFYING MODIFICATION 16 OF THIS COURT’S FEBRUARY 4, 2022 ORDER 17 On February 4, 2022, this Court heard the Frys’ motion for discovery sanctions for Big 18 Washington’s defiance of this Court’s prior order compelling the depositions of Stephanie Smith, 19 Martin Smith, Ben Eilenberg, and Big Washington’s person most knowledgeable. At the February 4, 20 2022 hearing, Big Washington noted that the Smiths were in Florida with their five children due to 21 Covid. The Court again compelled the witnesses to attend their depositions in Bakersfield and asked 22 Big Washington for available dates. Big Washington offered April 5, 6, and 7. 23 When Big Washington offered the April dates for deposition, it did not condition those dates 24 or indicate that one parent would have to remain in Florida while the other is deposed in California. 25 The April dates were selected specifically to obtain “dates certain” and to give the Smiths adequate 26 time to arrange their travel plans. Since the February 4, 2022 hearing, nothing of any significance has 27 changed. There are no new facts or circumstances. Ultimately, the Smiths knew they were subject to 28 an order requiring them to submit to in-person depositions when they chose to get on a plane to Florida. 2 Alexander & Associates Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 FRYS’ OPPOSITION TO BIG WASHINGTON’S EX PARTE APPLICATION TO ADVANCE THE DEPOSITION DATE FOR STEPHANIE SMITH 1 They should not be allowed to use their voluntary travels as an excuse for modifying this Court’s 2 order. 3 II 4 THE DEPOSITION DATES SHOULD NOT BE MODIFIED GIVEN THE HISTORY OF 5 THIS CASE. IN ADDITION, FRYS’ COUNSEL MAY NOT BE AVAILABLE ON THE 6 DATES PROPOSED BY STEPHANIE SMITH 7 This Court is aware of the history in this case and that depositions have been scheduled multiple 8 times, only to be cancelled. This Court ordered that the deposition take place on a date certain. All 9 parties and counsel are available on April 5, 2022 and given the history in this case, that date should 10 not be changed. 11 Moreover, Frys’ counsel likely will be unavailable on Big Washington’s proposed dates of 12 March 29-31. Frys’ counsel was advised on March 2, 2022 that a jury trial that had been trailing is 13 scheduled to commence on or about March 8, 2022. The trial is scheduled for a 10-day jury, but the 14 trial court is dark March 14-18, 2022. Frys’ counsel expects the trial to last through March 31, 2022. 15 Therefore, Fry’s counsel may not be available on the proposed dates. 16 III 17 CONCLUSION 18 The ex parte application should be denied. There is no good cause to modify this Court’s 19 previous order setting the deposition on April 5, 2022 and Frys’ counsel likely is unavailable on the 20 dates proposed by Big Washington. 21 22 DATED: March 2, 2022 ALEXANDER & ASSOCIATES, PLC 23 24 By: /s/ William L. Alexander /s/ WILLIAM L. ALEXANDER 25 Attorneys for Defendants, Thomas H. Fry and Ruth M. Fry as Trustees of the 26 T & R Fry Family Trust 27 28 3 Alexander & Associates Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 FRYS’ OPPOSITION TO BIG WASHINGTON’S EX PARTE APPLICATION TO ADVANCE THE DEPOSITION DATE FOR STEPHANIE SMITH 1 PROOF OF SERVICE (C.C.P. §1013a, 2015.5) 2 I am employed in the County of Kern, State of California. I am over the age of 18 and not a 3 party to the within action; my business address is 1925 G Street, Bakersfield, California. 4 On March 2, 2022, I served the foregoing documents entitled OPPOSITION OF DEFENDANTS TO PLAINTIFF’S EX PARTE APPLICATION TO ADVANCE DEPOSITION 5 DATE FOR STEPHANIE SMITH and DECLARATION OF ELIZABETH ESTRADA IN 6 SUPPORT OF OPPOSITION OF DEFENDANTS TO PLAINTIFF’S EX PARTE APPLICATION TO ADVANCE DEPOSITION DATE FOR STEPHANIE SMITH 7 on interested parties in this action as follows: 8 9 Richard B Jacobs Attorneys for Plaintiff, BIG WASHINGTON, LLC LAW OFFICE OF RICHARD JACOBS 10 13512 Hatteras Street Van Nuys, CA 91401-4517 11 Email: richardjacobslaw@gmail.com 12 [ ] BY MAIL: Pursuant to C.C.P. §1013(a). By placing ( ) the original or (X) a true copy thereof 13 enclosed in a sealed envelope. I am readily familiar with the firm’s practice of collection and processing of documents for mailing. Under that practice it would be deposited with the United 14 State Postal Service on that same day with postage thereon fully prepaid at Bakersfield, 15 California in the ordinary course of business. 16 [X] BY E-MAIL OR ELECTRONIC TRANSMISSION: Pursuant to C.C.P §1010.6, subsection (e)(1), I caused the document(s) to be emailed to the person(s) at the email address(es) on the 17 attached service list. No electronic message or other indication that the transmission was 18 unsuccessful was received within a reasonable time after the transmission. 19 [ ] (BY PERSONAL SERVICE), pursuant to C.C.P. §1011, by placing a true copy thereof enclosed in an envelope and caused such envelope to be delivered by hand to the office(s) of the 20 addresses(s). 21 [ ] (BY OVERNIGHT COURIER), pursuant to C.C.P. §1013(c)(d), I caused such envelope with 22 delivery fees prepaid to be sent by GENERAL LOGISTICS SYSTEMS, INC. (GSL). 23 Executed on March 2, 2022, at Bakersfield, California. 24 25 [X] (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 26 [ ] (FEDERAL) I declare that I am employed in the office of a member of the bar of this court at 27 whose direction the service was made. 28 /s/ Rocki L. Parnell /s/ ROCKI L. PARNELL Alexander & Associates Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888