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 APPLICATION FOR
) PROTECTIVE ORDER
14 )
vs.
) Assigned to: Hon. Bernard C. Barmann
15 ) Div.: H
BENHONG (AMERICA) RECYCLING CO.
16 LTD, a California Limited Liability Company; )
and THOMAS H. FRY and RUTH M. FRY as ) Date: March 14, 2022
17 Trustees of the T & R FRY FAMILY TRUST; ) Time: 8:30 a.m.
and DOES 1 – 100, inclusive, ) Div.: H
18 )
19 Defendants. ) Complaint Filed: October 6, 2017
) Trial Date: May 31, 2022
20 )
)
21 )
22
23 Perhaps through a calendaring error, Big Washington’s motion for protective order relieving
24 Stephanie Smith, Martin Smith, Ben Eilenberg, and Big Washington’s person most knowledgeable
25 from attending their depositions remains on calendar for March 14, 2022.
26 PROCEDURAL BACKGROUND
27 In December 2021, the Frys filed a motion for terminating or evidentiary sanctions for Big
28 Washington’s failure to comply with the Court’s October 28, 2021 order compelling the depositions
1
Alexander & Associates
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
FRYS’ OPPOSITION TO BIG WASHINGTON’S MOTION FOR PROTECTIVE ORDER
1 of Stephanie Smith, Martin Smith, Ben Eilenberg, and Big Washington’s person most knowledgeable.
2 The hearing was set to take place in January 2022, but was continued to February 4, 2022.
3 On February 3, 2022, Big Washington filed an ex parte application for a hearing on February
4 4, 2022. The ex parte application was filed alongside a motion for a protective order, in which Big
5 Washington asked the Court to relieve Stephanie Smith, Martin Smith, Ben Eilenberg, and Big
6 Washington’s person most knowledgeable from the Court’s prior order compelling their depositions.
7 Although the motion for protective order apparently was set for hearing on March 14, 2022, the ex
8 parte application asked that the Court hear Big Washington’s motion for protective order
9 simultaneously with the Frys’ motion for terminating or evidentiary sanctions on February 4, 2022.
10 On February 4, 2022, the Court took up the matter and ruled that the depositions of Stephanie
11 Smith, Martin Smith, Ben Eilenberg, and Big Washington’s person most knowledgeable take place on
12 April 5, 6, and 7.
13 It appears that Big Washington both filed an ex parte application and pre-cleared the March
14 14, 2022 date with the court for its motion for protective order, and that despite this Court’s February
15 4, 2022 ruling, the March 14, 2022 motion for protective order never was taken off calendar.
16 ARGUMENT
17 I
18 BIG WASHINGTON’S MOTION ALREADY HAS BEEN CONSIDERED
19 This Court considered Big Washington’s motion for protective order on February 4, 2022. The
20 Court did not grant the protective order and instead issued a new order again compelling the
21 depositions. Big Washington’s current motion is redundant and should be denied.
22 II
23 THE MOTION FOR PROTECTIVE ORDER IS UNTIMELY
24 Code of Civil Procedure, Section 2025.420, subdivision (a), requires that a motion for
25 protective order “promptly” be filed. This Court issued an order compelling the depositions of
26 Stephanie Smith, Martin Smith, Ben Eilenberg, and Big Washington’s person most knowledgeable on
27 October 28, 2021. Those depositions were to be commenced on November 29 and 30, and December
28 1, 2021. Big Washington refused to produce the deponents because its petition for writ was pending
2
Alexander & Associates
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
FRYS’ OPPOSITION TO BIG WASHINGTON’S MOTION FOR PROTECTIVE ORDER
1 with the Fifth District at the time. But Big Washington did not seek a protective order prior to October
2 28, 2021, prior to November 29, or immediately after January 19, 2022 when the California Supreme
3 Court denied the petition for review.
4 Big Washington argues that a protective order is warranted because the witnesses are
5 “nonparties” who reside more than 150 miles from the location of the deposition. Each of these
6 arguments were raised in Big Washington’s opposition to defendants’ motion to compel the
7 depositions. The Court rejected those arguments. Moreover, these arguments could have been raised
8 by motion for protective order prior to October 28, 2021 and were not.
9 III
10 THERE IS NO GOOD CAUSE FOR THE PROTECTIVE ORDER
11 Section 2025.420 of the Code of Civil Procedure further requires that a protective order be
12 based upon a showing of good cause. The burden is on the party seeking the protective order to show
13 good cause. (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 318.) Mere
14 conclusions are insufficient to establish good cause. (Ibid.)
15 Big Washington urges that Martin Smith should not be required to appear for a deposition
16 because he flew into California on January 29, 2022 for his deposition and defendants refused to take
17 it. No deposition had been scheduled for Martin Smith and there had been no agreed upon date for
18 the deposition. Martin Smith decided on his own accord to return to California on January 29, knowing
19 that no deposition had been scheduled. Martin Smith nevertheless demanded that his deposition take
20 place in the 6 days he would be in the state. This was done either as a ploy to force defendants to
21 depose Martin Smith out of sequence, or as a pretext for filing a motion for protective order. Either
22 way, there is no good cause for a protective order. Martin Smith and Stephanie Smith reside in
23 California and they cannot use their trip to Florida as an excuse to continue defying this Court’s orders
24 compelling the depositions.
25 IV
26 THE DEPOSITION IS NOT AN APEX DEPOSITION
27 Stephanie Smith’s deposition would not constitute an “apex” deposition. Big Washington is
28 not General Motors or Chevron. It is a small, limited liability company. But more importantly,
3
Alexander & Associates
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
FRYS’ OPPOSITION TO BIG WASHINGTON’S MOTION FOR PROTECTIVE ORDER
1 Stephanie and Martin Smith are identified as witnesses with relevant knowledge in Big Washington’s
2 responses to interrogatories. Therefore, Big Washington cannot now assert that Stephanie Smith is
3 merely an owner with no knowledge.
4 V
5 THE FRYS REQUEST THAT THE COURT CONSIDER THIS UNTIMELY OPPOSITION
6 The Frys believed that the March 14, 2022 hearing had been taken off calendar after this
7 Court’s February 4, 2022 hearing on Big Washington’s ex parte application, at which the issues raised
8 in the motion for protective order seemed to have been dispatched. On March 4, 2022, counsel for the
9 Frys noticed that the March 14, 2022 hearing remained on calendar. This opposition was filed the
10 same day.
11 CONCLUSION
12 The motion for protective order should be denied. There is no good cause for the order. There
13 is no evidence that the deposition is sought to annoy, embarrass, or oppress the deponents. There
14 simply is no reason for a protective order, and there is no reason this motion should have remained on
15 calendar.
16
17 DATED: March 4, 2022 ALEXANDER & ASSOCIATES, PLC
18
19 By: /s/ Elizabeth Estrada /s/
ELIZABETH ESTRADA
20 Attorneys for Defendants, Thomas H. Fry
and Ruth M. Fry as Trustees of the
21 T & R Fry Family Trust
22
23
24
25
26
27
28
4
Alexander & Associates
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
FRYS’ OPPOSITION TO BIG WASHINGTON’S MOTION FOR PROTECTIVE ORDER
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 4, 2022, I served the foregoing documents entitled OPPOSITION OF
DEFENDANTS TO PLAINTIFF’S APPLICATION FOR PROTECTIVE ORDER
5
6 on interested parties in this action as follows:
7 Richard B. Jacobs Attorneys for Plaintiff, BIG WASHINGTON, LLC
LAW OFFICE OF RICHARD JACOBS
8 13512 Hatteras Street
9 Van Nuys, CA 91401-4517
Email: richardjacobslaw@gmail.com
10
[ ] BY MAIL: Pursuant to C.C.P. §1013(a). By placing ( ) the original or (X) a true copy thereof
11 enclosed in a sealed envelope. I am readily familiar with the firm’s practice of collection and
12 processing of documents for mailing. Under that practice it would be deposited with the United
State Postal Service on that same day with postage thereon fully prepaid at Bakersfield,
13 California in the ordinary course of business.
14 [X] BY E-MAIL OR ELECTRONIC TRANSMISSION: Pursuant to C.C.P §1010.6, subsection
15 (e)(1), I caused the document(s) to be emailed to the person(s) at the email address(es) on the
attached service list. No electronic message or other indication that the transmission was
16 unsuccessful was received within a reasonable time after the transmission.
17 [ ] (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
18
addresses(s).
19
[ ] (BY OVERNIGHT COURIER), pursuant to C.C.P. §1013(c)(d), I caused such envelope with
20 delivery fees prepaid to be sent by GENERAL LOGISTICS SYSTEMS, INC. (GSL).
21
22 Executed on March 4, 2022, at Bakersfield, California.
23 [X] (STATE) I declare under penalty of perjury under the laws of the State of California that
the above is true and correct.
24
25 [ ] (FEDERAL) I declare that I am employed in the office of a member of the bar of this court at
whose direction the service was made.
26
/s/ Rocki L. Parnell /s/
27
ROCKI L. PARNELL
28
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 APPLICATION FOR ) PROTECTIVE ORDER 14 ) vs. ) Assigned to: Hon. Bernard C. Barmann 15 ) Div.: H BENHONG (AMERICA) RECYCLING CO. 16 LTD, a California Limited Liability Company; ) and THOMAS H. FRY and RUTH M. FRY as ) Date: March 14, 2022 17 Trustees of the T & R FRY FAMILY TRUST; ) Time: 8:30 a.m. and DOES 1 – 100, inclusive, ) Div.: H 18 ) 19 Defendants. ) Complaint Filed: October 6, 2017 ) Trial Date: May 31, 2022 20 ) ) 21 ) 22 23 Perhaps through a calendaring error, Big Washington’s motion for protective order relieving 24 Stephanie Smith, Martin Smith, Ben Eilenberg, and Big Washington’s person most knowledgeable 25 from attending their depositions remains on calendar for March 14, 2022. 26 PROCEDURAL BACKGROUND 27 In December 2021, the Frys filed a motion for terminating or evidentiary sanctions for Big 28 Washington’s failure to comply with the Court’s October 28, 2021 order compelling the depositions 1 Alexander & Associates Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 FRYS’ OPPOSITION TO BIG WASHINGTON’S MOTION FOR PROTECTIVE ORDER 1 of Stephanie Smith, Martin Smith, Ben Eilenberg, and Big Washington’s person most knowledgeable. 2 The hearing was set to take place in January 2022, but was continued to February 4, 2022. 3 On February 3, 2022, Big Washington filed an ex parte application for a hearing on February 4 4, 2022. The ex parte application was filed alongside a motion for a protective order, in which Big 5 Washington asked the Court to relieve Stephanie Smith, Martin Smith, Ben Eilenberg, and Big 6 Washington’s person most knowledgeable from the Court’s prior order compelling their depositions. 7 Although the motion for protective order apparently was set for hearing on March 14, 2022, the ex 8 parte application asked that the Court hear Big Washington’s motion for protective order 9 simultaneously with the Frys’ motion for terminating or evidentiary sanctions on February 4, 2022. 10 On February 4, 2022, the Court took up the matter and ruled that the depositions of Stephanie 11 Smith, Martin Smith, Ben Eilenberg, and Big Washington’s person most knowledgeable take place on 12 April 5, 6, and 7. 13 It appears that Big Washington both filed an ex parte application and pre-cleared the March 14 14, 2022 date with the court for its motion for protective order, and that despite this Court’s February 15 4, 2022 ruling, the March 14, 2022 motion for protective order never was taken off calendar. 16 ARGUMENT 17 I 18 BIG WASHINGTON’S MOTION ALREADY HAS BEEN CONSIDERED 19 This Court considered Big Washington’s motion for protective order on February 4, 2022. The 20 Court did not grant the protective order and instead issued a new order again compelling the 21 depositions. Big Washington’s current motion is redundant and should be denied. 22 II 23 THE MOTION FOR PROTECTIVE ORDER IS UNTIMELY 24 Code of Civil Procedure, Section 2025.420, subdivision (a), requires that a motion for 25 protective order “promptly” be filed. This Court issued an order compelling the depositions of 26 Stephanie Smith, Martin Smith, Ben Eilenberg, and Big Washington’s person most knowledgeable on 27 October 28, 2021. Those depositions were to be commenced on November 29 and 30, and December 28 1, 2021. Big Washington refused to produce the deponents because its petition for writ was pending 2 Alexander & Associates Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 FRYS’ OPPOSITION TO BIG WASHINGTON’S MOTION FOR PROTECTIVE ORDER 1 with the Fifth District at the time. But Big Washington did not seek a protective order prior to October 2 28, 2021, prior to November 29, or immediately after January 19, 2022 when the California Supreme 3 Court denied the petition for review. 4 Big Washington argues that a protective order is warranted because the witnesses are 5 “nonparties” who reside more than 150 miles from the location of the deposition. Each of these 6 arguments were raised in Big Washington’s opposition to defendants’ motion to compel the 7 depositions. The Court rejected those arguments. Moreover, these arguments could have been raised 8 by motion for protective order prior to October 28, 2021 and were not. 9 III 10 THERE IS NO GOOD CAUSE FOR THE PROTECTIVE ORDER 11 Section 2025.420 of the Code of Civil Procedure further requires that a protective order be 12 based upon a showing of good cause. The burden is on the party seeking the protective order to show 13 good cause. (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 318.) Mere 14 conclusions are insufficient to establish good cause. (Ibid.) 15 Big Washington urges that Martin Smith should not be required to appear for a deposition 16 because he flew into California on January 29, 2022 for his deposition and defendants refused to take 17 it. No deposition had been scheduled for Martin Smith and there had been no agreed upon date for 18 the deposition. Martin Smith decided on his own accord to return to California on January 29, knowing 19 that no deposition had been scheduled. Martin Smith nevertheless demanded that his deposition take 20 place in the 6 days he would be in the state. This was done either as a ploy to force defendants to 21 depose Martin Smith out of sequence, or as a pretext for filing a motion for protective order. Either 22 way, there is no good cause for a protective order. Martin Smith and Stephanie Smith reside in 23 California and they cannot use their trip to Florida as an excuse to continue defying this Court’s orders 24 compelling the depositions. 25 IV 26 THE DEPOSITION IS NOT AN APEX DEPOSITION 27 Stephanie Smith’s deposition would not constitute an “apex” deposition. Big Washington is 28 not General Motors or Chevron. It is a small, limited liability company. But more importantly, 3 Alexander & Associates Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 FRYS’ OPPOSITION TO BIG WASHINGTON’S MOTION FOR PROTECTIVE ORDER 1 Stephanie and Martin Smith are identified as witnesses with relevant knowledge in Big Washington’s 2 responses to interrogatories. Therefore, Big Washington cannot now assert that Stephanie Smith is 3 merely an owner with no knowledge. 4 V 5 THE FRYS REQUEST THAT THE COURT CONSIDER THIS UNTIMELY OPPOSITION 6 The Frys believed that the March 14, 2022 hearing had been taken off calendar after this 7 Court’s February 4, 2022 hearing on Big Washington’s ex parte application, at which the issues raised 8 in the motion for protective order seemed to have been dispatched. On March 4, 2022, counsel for the 9 Frys noticed that the March 14, 2022 hearing remained on calendar. This opposition was filed the 10 same day. 11 CONCLUSION 12 The motion for protective order should be denied. There is no good cause for the order. There 13 is no evidence that the deposition is sought to annoy, embarrass, or oppress the deponents. There 14 simply is no reason for a protective order, and there is no reason this motion should have remained on 15 calendar. 16 17 DATED: March 4, 2022 ALEXANDER & ASSOCIATES, PLC 18 19 By: /s/ Elizabeth Estrada /s/ ELIZABETH ESTRADA 20 Attorneys for Defendants, Thomas H. Fry and Ruth M. Fry as Trustees of the 21 T & R Fry Family Trust 22 23 24 25 26 27 28 4 Alexander & Associates Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 FRYS’ OPPOSITION TO BIG WASHINGTON’S MOTION FOR PROTECTIVE ORDER 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 4, 2022, I served the foregoing documents entitled OPPOSITION OF DEFENDANTS TO PLAINTIFF’S APPLICATION FOR PROTECTIVE ORDER 5 6 on interested parties in this action as follows: 7 Richard B. Jacobs Attorneys for Plaintiff, BIG WASHINGTON, LLC LAW OFFICE OF RICHARD JACOBS 8 13512 Hatteras Street 9 Van Nuys, CA 91401-4517 Email: richardjacobslaw@gmail.com 10 [ ] BY MAIL: Pursuant to C.C.P. §1013(a). By placing ( ) the original or (X) a true copy thereof 11 enclosed in a sealed envelope. I am readily familiar with the firm’s practice of collection and 12 processing of documents for mailing. Under that practice it would be deposited with the United State Postal Service on that same day with postage thereon fully prepaid at Bakersfield, 13 California in the ordinary course of business. 14 [X] BY E-MAIL OR ELECTRONIC TRANSMISSION: Pursuant to C.C.P §1010.6, subsection 15 (e)(1), I caused the document(s) to be emailed to the person(s) at the email address(es) on the attached service list. No electronic message or other indication that the transmission was 16 unsuccessful was received within a reasonable time after the transmission. 17 [ ] (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 18 addresses(s). 19 [ ] (BY OVERNIGHT COURIER), pursuant to C.C.P. §1013(c)(d), I caused such envelope with 20 delivery fees prepaid to be sent by GENERAL LOGISTICS SYSTEMS, INC. (GSL). 21 22 Executed on March 4, 2022, at Bakersfield, California. 23 [X] (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 24 25 [ ] (FEDERAL) I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. 26 /s/ Rocki L. Parnell /s/ 27 ROCKI L. PARNELL 28 Alexander & Associates Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888