Gregory G. Spaulding, SBN 196606 Lisa Ann Hilario, SBN 148460, Lisa G, Carreno, SBN 247458 SPAULDING MeCULLOUGH & TANSIL LLP }90 South E Street, Suite 200, P.O. Box 1867 Santa Rosa, CA 95402 (707) 524-1900, Telephone: Facsimile: Attomeys for Defendants COUNTY OF SONOMA, 30 WEBER, |SALLY LIEDHOLM, MICHAEL BREWSTER, Jand KAREN STAGG-HOURIGAN ENDORSED FILED APR 2.9 2010 ure cour carom CUNY o Soioue sa Eeca one ‘ean ae SUPERIOR COURT OF CALIFORNIA, COUNTY OF SONOMA CLAY M, GREENE, JANETTE BIGGERSTAFF, EXECUTOR OF THE, ESTATE OF HAROLD SCULL, Deceased, Plaintiffs, ‘THE COUNTY OF SONOMA; JO WEBER: SALLY LIEDHOLM; KARIN STAGG- HOURIGAN; MICHAEL BREWSTER; NORTH BAY AUCTIONS, LLC, a California Limited Liability Company, AGUA CALIENTE. ‘VILLA, an unknown business entity, KIM. DILLINGHAM; And Does | though 50, inclusive, Defendants AND RELATED CROSS-ACTIONS, Case No.: SPR-81815 ntimted Civil Mate Assine to Hon, Robert Boy for Alt Purposes NOTICE OF MOTION AND MOTION TO COMPEL ATTENDANCE AND. ‘TESTIMONY OF RONALD PRESTON AT DEPOSITION; FOR DETERMINATION OF CONTEMPT; AND REQUEST FOR SANCTIONS Date: May 12, 2010 ‘Time: 3:00 pm, Dept: 17 ‘Trial Date: July 16,2010 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: [NOTICE IS HEREBY GIVEN that on May 12,2010 a 3:00 pan. as soon thereafter as the matter may be heard in Depastment 17 of the above-etitled Cour, defendants County of Sonoma, Jo Weber, Sally Liedholm, Michael Brewster and Karen Stag-ourigan (collectively, the "County defendants" will and hereby do move this Court for an Onder: reguirng hid party witness Ronald Preston o stend and testify a his deposition atthe offices of Spaulding McCullough Tansl LLP, within one week of the granting ofthis Motion. The County defendants further move this Court for 1 THOTICE OF WOTION AND MOTION (1) TO CONPEL ATTENDANCE AND TESTIMONY AT DEVOSTTON [3 FOR DETERMINATION OF CONTEMPT: AND (3) REQUEST FOR SANCTIONS,an Order determining that Prestons flue to appear for deposition constitutes contempt punishable under Code of Civil Procedure §1991.1, and ordering Preston to make payment to the County éefendants nthe amount o $500, plus other damages reoverable under Code of Civil Procedure 1992, Finally, he County defendants move this Court for an Order awarding sanctions against Preston and his ttomey, John Kelly, under Code of Civil Procedure §19872 ‘This Motion is made on the grounds that Preston was subpena for deposition on Api 16, 2010 but he filed to appear, the deposition having been unilaterally cancelled by Preston and his attorney at the last minute and without any leptimate basis. Also, Preston and his attomey have edvised that Preston refuses to appear for his deposition unless the parties agree in advance to limit ve questions that he can be asked. ‘This Motion is based on this Notice, the Memorandum of Points and Authorities filed herewith, the Declaration of Gregory G. Spaulding filed herewith, the complete files and records in this matter, and any additional evidence submitted atthe hearing Dated: April 20, 2010 SPAULDING MeCULLOUGH & ‘TANS ‘Atiomeys for Defendants COUNTY OF SONOMA, JO WEBER, SALLY LIEDHOLM, MICHAEL BREWSTER and KAREN STAGG-HOURIGAN, om: ODay ———— uP 'NOTIGEGF NOTION AND NOTION I TO CONPEL ATTENDANCE AND TESTIMONY AT DITOSTION. 3) FOR DETERMINATION OF CONTEMPT; AND(3) REQUEST FOR SANCTIONS‘MEMORANDUM OF POINTS AND AUTHORIT 1. STATEMENT OF FACTS ‘This case assets claims arising out of interactions between plaintiff Clay Greene and Harold Scull, onthe one hand, and representatives ofthe Sonoma County Office ofthe Public ‘Administrator, Public Guardian and Public Conservator ("Public Guardian" or “PG"), on the other hand. In May, 2008, the PG was contacted by a social worker at Kaiser Hospital conceming “Me. Seull, aged 89, who had been admitted to Kaiser with injuries he reported were inflicted by Mr. Greene, age 76, Mr. Sculls parner of approximately 20 years. Following an investigation, the PG determined that Mr, Scull needed assistance to attend to his personal and medical needs and to manage his financial affairs; that Mr. Scull was afraid of Mr. Greene: and that Mr. Scull did not want 1 return fo the home he shared with Mr. Greene. Accordingly, the PG found new housing for Me. Scull. (Declaration of Gregory G. Spaulding ("Spaulding Decl”), §2.] In May, 2008, Mr. Scull voluntarily nominated the PG as conservator ofhis person and his estate, andthe PG filed a petition for temporary and permanent conservatorship of Mr. Sculls estate, The PG was appointed temporary conservator of Mr. Scull’ estate in June 2008, andthe appointment was made permanent in July, 2008. Also in May, 2008, Mr. Greene accepted the PGs offer of assistance and he formally nominated the PG as his representative payee for Social Security ‘Administration benefits. [Spaulding Deel, §3.] Afler Mr. Sell was moved to his new residence, Mr. Greene was advised to separate his belongings from Mr. Seull', so that Mr. Seull’s property could be removed from the house, Because ‘there was not enough room at Mr. Scull’s new residence forall of his belongings, and to provide funds for his future care and maintenance, Mr, Scull consented to the PG's sale oF his personal property. Defendant North Bay Auctions LLC (*NBA") was engaged to assist with the sale. Ix June| 2008, Mr. Scull and Mr. Greene, slong with epresentatives from NBA and the PG, metal the house so that Mr, Scull could identify the personal property he wanted to take to his new home andi so Mr. "tae, Sel ied on Angst 13,2008, tn this ate, lms are asserted on his behalf by Jsonete Biggest, inher exp asposonalropesenlave ofthe Sate of Harold Sell | NOTICE GF NOTION AND WOTIOW (i TOOOMPEL ATTENDANCE AND TESTIMONY AT BEROSTTION (FOR | DETERMINATION OF CONTEMPT: AND () REQUEST FOR SANCTIONS,Green could identify and remove the property that belonged to him. The remaining property was sold] at to public auctions in August 2008. [Spaulding Decl. $4] “Throughout these events, Ronald Preston was the attorney for Mr. Scull personally, and also or his conserved estate, AL the time ofthe events now at issue, Mr. Preston communicated with representatives of the PG regarding Mr, Sculls situation, the sale of Mr. Scul’s property and regarding other matters pertinent to plaintiffs" claims. {Spaulding Decl. §5.] II, STATEMENT OF THE CASE Pi this case are Clay Greene and Jannette Biggersaff, as personal representative of the Estate of Harold Scull. Plaintiffs filed their Complaint on August 4, 2009. The Complaint alleges that in connection with their management of Mr. Scul’s estate, the County defendants abused ‘heir authority and breached fiduciary duties owed to Mr. Scull and Mr. Greene. More specifically, they claim thatthe PG: failed to properly secure and preserve Me, Seull's asses and personel property; improperly removed Mr. Scul’s personal property from his residence: and sold and disposed of Mr. Sculls property without permission, authority or notice. Ate the Complaint was served, the parties agreed to explore a possible settlement before the defendants were required to respond, and before conducting discovery. A mediation was conducted Jon November 30, 2009; it was unsuccessful, In January, 2010, the County defendants filed a Demurrer and Motion to Strike portions of the Complaint. A First Amended Complaint was filed in March 2010, on the eve ofthe hearing for the Demmurter and Motion to Strike, [Spaulding Deel. §6.] Also in January plaintiffs filed a Motion for Preference, claiming that both plaintiffs are over 70 years old, and both have significant health problems, so that preference is necessary to prevent rejudicing the their interests inthe litigation. ‘The Motion was initially denied based on deficiencies in plaintiffs attomey's declaration filed in support of the Motion, but after plaintifls’attomey submitted a supplemental declaration, the Court granted the Motion and set atrial date of July 16, 2010 [Spaulding Decl, §7 the Goon praned the Motion on March 30,2010 without holuing hearing, even though the County defendants requested sn opportuni tr heard. * ‘NOTICE OF HOTION AND NOTION [TO CONPEL ATTENDANCE AND TESTIMONY AT DEPOSTTION @)FOR DETERMINATION OF CONTEMPT; AND (3) REQUEST FOR SANCTIONSBefore the Motion fo Peferene was grated the parties had initiated discovery, serving ‘writen discovery and noticing depositions. One ofthe irs deposition noticed by the County lfendants was the deposition of Ronald Preston. As noted above, Mr. Preston was witness to events at stu in this ease, and he had conversations with PG representatives and corresponded with ‘various County employees, regarding matter critical to plaints" claims. In ther Responses to Interrogatories, both plaintiffs identify Mr. Preston asa person with knowledge of Facts that support many of plaints claims, including ther claims thatthe County: filed to secure and protect lain propery from damage and los; filed to inventory the property allowed unknown thi partis to have acess to the property filed to protect the property; sold property’ fo es than issu ‘alu; didnot allocate all of the process from the sale of property to Gresne; took possesion of and spent funds fom Greene's Wells Fargo account without Gresne's consent; presented Greene with dlocuments knowing that he was unable to understand what was being presented ohimy and exerted undue influence over Scull [Spaulding Decl, §8.] The Coumty defendants wanted to schedule Me Preston's deposition early, because they anticipate that additional witnesses, documents and relevant information will be identified through his testimony, and the County defendants wanted to make sure that after his deposition was completed, they would stil have time to serve follow up written Liscovery and to notice additional depositions.® (Spaulding Decl. §9,] ‘The County defendants’ initial attempts to serve Mr, Preston witha subpena for his deposition ‘ere unsuccessful; Mr, Preston had recently retired from practice and could not be found atthe business address thatthe County had for him. On March 22, 2010, counsel for the County defendant received a letter from plaintifs' attorney advising that she had received call from attorney Jahn Kelly, who told her that he would accept service ofa subpena on Mr, Preston's behalf. Accordingly, ‘on March 29, 2010, counsel forthe County defendants’ forwarded copies of the Deposition Subpena (Subpena”) and Notice of Taking Deposition to Mr. Kelly. The Subpena set Mr. Preston's deposition for April 16, 2010 at 10:00 am. atthe offices of the County defendants’ counsel in Santa Rosa, [Spaulding Decl, §10and Exhibits A and B.) > May 12,2010 i the ast day forthe County’ defendants to serve written discovery by mel, and still complete discover 'NGTIGEOF MOTION AND WOTTON) TO COMPEL ATTENDANCE AND TESTIMONY AT DIFOSTION FOR DETERMINATION OF CONTEMPT; AND) REQUEST FOR SANCTIONS‘After hearing nothing from Mr, Peston or Me. Kelly fortwo weeks, on April 12, 2010, four days before the scheduled deposition date, counsel for the County defendant received letter from Mr. Kelly confirming Mr. Preston's availability on April 16; asking thatthe location of the deposition be moved to Sonoma; and asserting that because Mr. Preston had been altorney for Mr. Scull and for his estate, the documents requested by the Subpena were covered by the attomey client, privilege and/or the attomey work product doctrine, Mr. Kelly suggested thatthe parties agree to 8 stipulated protective order concerning any documents or communications covered by those protections so the deposition could proceed on April 16. [Spaulding Decl, §11 and Exhibit C.] ‘On April 13, 2010, counsel for the County defendants discussed Mr, Preston's request with plaintiff counse! (including current counsel for Mr. Scul's Estate), and it was agreed that any objections fo the document requests and deposition questions could be handled as they arose a the Aeposition on April 16, In the meantime, they agred to discuss the terms ofa possible protective order, On April 14, 2010, counsel for the County defendants faxed a letter to Me. Kelly (with copies to ll counsel) agrecing to change the locaton ofthe deposition: pointing out tat the requested documents included documents that clearly were not subject to ether theattomey client privilege or the attomey work product doctrine: and advise that after discussing Mr. Kelly's concerns with Plaintiffs’ counsel, the parties had agreed that any objections cull be handled at Mr Preston's deposition, ‘The letter also enclosed a proposed Stipulation and Proposed Protective Order for Me. Kelly's review, [Spaulding Decl, §13 and Exhibit D.] Counsel forthe County defendants heard nothing further from Mr. Kelly until 4:57 p.m. on April 15,2010, when they recived a faxed letter ftom Mr. Kelly advising that Me. Preston would not appear forhis deposition the next moming. Mr. Kelly did not address the parties’ agreement to deal with objections at Mr, Preston's deposition, Instead, he complained about the proposed protective order because it only prevented disclosure of protected information outside ofthe litigation Apparently he hed expected that it would limit the scope of Mr. Preston's deposition, although this is certainly not the normal function ofa protective order. Mr. Kelly also suggested that Mr Preston should not be deposed at al, stating that there had been no showing of why the deposition was not improper.” that there are other means to obtain the information at issue because County employees ‘ | NOTICE OF WOTTON AND NOTION TO CONPEL ATTENDANCE AND TESTIVONY AT DEPOSTTION: FOR | DETERMINATION OF CONTEMPT: AND (3 REQUEST FOR SANCTIONScould testify tothe substance of their discussions with Me. Preston; and that Mr. Preston's testimony isnot “crucial” to the ease. After mischaracerizing counsel's April 14 ltt snd the County defendants’ stated position in various respects, Mr. Kelly concluded by s ing that Mr Preston would be produced for deposition, but only if the County defendants agreed to limit the deposi mn questions and document request to conversations and correspondence with agents and employees of the ‘County. (Spaulding Decl, §14 and Exhibit .] 1, ARGUMENT. |A. ‘The County Defendants Have A Right To Depose Ronald Preston Under Califor law, the scope of discovery is very broad. A party can tke the deposition ol any person (Code of Civil Procedure §2025.010), and ean obtain discovery with respect to any matter that is relevant to the subject matter of the setion. Code of Civil Procedure §2017.010, The fact that the deponent isan attomney who represents or has represented a party doesnot preclude taking that person's deposition; even current opposing counsel ean be deposed if he or she has knowledge of relevant facts, Weil & Brown, California Practice Guide: Civil Procedure Before Tris Brown"), Ch, 8E-3, Ronald Preston was subpoenaed for deposition on April 16,2010. On April 12, 2010, Mr ‘Weil & Preston’s atorey, John Kelly, confined that Mr. Preston was available to have his deposition taken that day. Nevertheless, Mr, Preston dd no appear for his deposition on April 16,2010. The only reason given was tha the County defendants had nt agreed to limi the seape oftheir deposition avestons or oftheir requests for documents, However, Mr, Preston had no right o limit the scope of ine deposition in advance and the County was under no obligation to agree to do so, California's ciscovery statutes plainly antcipate that depositions will proceed without prior restrictions or limitations, and that coneems that arise with respect to the propriety of the questions asked will be ackressed atthe deposition tse. Under Code of Civil Procedure §2025.460, a deponent can assert appropriate objections to his orher deposition. Ifnecessary to prevent abuse, a deponent can seck a protective onder that certain ‘nate eannot be inguired into or Limiting the scope ofthe deposition. Code of Procedure 2025.120 (9),(10). The discovery statutes anticipate thatthe need for such an order may nat arise until the 1 ‘NOTICE GF WOTION AND WOTTON i) TO CONIPEL ATTENDANCE AND TESTIMONY AT DEPOSITION TO FOR DETERMINATION OF CONTEMPT: AND(3) REQUEST FOR SANCTIONS,eposition is underway; under Code of Procedure 2025.470, a deponent can suspend a deposition to allow sime to abn such an order ‘Where the objections are based ona claim of privilege, suspension ofthe deposition and a protective order are not necessary, because the deponentsatomey can object tothe question oF request, and instruct the deponent not o answer. Cade of Civil Proceduee §2025.460(a); Weil & Brown, Ch $E-12, In this case, Mr. Preston and his attorney wil be able to abject 0, and refse answer, questions that seek dislosure of privileged information; smiley, he can refuse to produce privileged documents"! The County defendants are stil entitled to take his deposition and ask their questions. There is no bass for Mr Kellys assumption that the County defendants will seek only information that is privileged ori available ffom other sources. With espect to this lst claim, Me ns and commu Preston's recollection of his conversa tions with County employees eannot be obtained fom other sources. Although County employees can be asked about their conversations ‘with Me. Preston, their recollections may not be the same as his, Moreover, if Mr, Peston had conversations with other individuals, the County defendants have no other way to bain information about those diseussions. Under Code of Civil Procedure §19871, court can make an order dveting compliance wth a subpocna that requires the atendance ofa witness or the production of records at a deposition, tn his case. Mr. Preston was propery subpoenaed to appear for deposition; he failed to appear without having a eptimate bass for not doing so; and his astomey has advised that he will no appear for his deposition unless the County defendants agree to limitations tha Mr, Preston has na legal right 10 demand. Accordingly, under Code of Civil Procedure §1987.1, the County defendants are entitled 10 thin a week of the granting ofthis an order directing Mr. Preston to appear for his deposition Motion, at the offices of Spaulding McCullough & Tansil LLP in Santa Rosa. * Ofcourse. the County defendants ean move to compel Mr, Presion fo answer questions and produce documents if they «Desa amy a en mo seer snp > ‘NOTICE OF MOTION AND WOTTON (1 TO CONPEL ATTENDANCE AND TESTIMONY AT BEFOSTTON (2) FOR ‘DETERMINATION OF CONTEMPT: AND 3) REQUEST FOR SANCTIONSB, Mz. Preston's Failure To. Appear Pursuant To Subpoena Constitutes Contempt And Is Punishable Under Code of Civi a Code of Civil Procedure §1991.1 provides: “[sobedience to subpoena requiring attendance of a witness before an officer aut of eourt ina depesition... may be punished as contempt, as provided in subdivision (¢) of Section 2023.030." Section 2023,030 provides “{tJhe court may impose a contempt sanction by an order treting the misuse ofthe discovery process asa [contempt of cour.” Finally, Code of Civil Procedure §1992 provides: A person failing o appear pursuant to a subpoena or a court order also forfeits to the party aggrieved the sum of five hundred dollars ($500), and all damages that he or she may sustain by he Failure of the person to appear pursuant to the subpoena.” Under the foregoing provisions of the Code of Civil Procedure, the County defendants are entitled to payment of $500 under §1992, plus all damages they have sustained asa result of | ‘Mr. Preston’s failure to appese. ‘The County defendants have incurred attorneys" fees totaling, $3,311.50 in conneetion withthe filing of both this Motion andthe related Ex Parte Application, ‘which was required in order to have the Motion set for hearing in time for he deposition to be taken before the last day forthe County defendants to propound follow up discovery. [Spaulding Decl, $15] ©. The County Defendants Are Entitled 1 Code of Civil Procedure §1987.2(a) provides tha «court “in making an order pursuant 10 motion made under subdivision (c) of Section 1987 or under Section 1987.1, the court may in its discretion award the amount ofthe reasonable expenses incurred in making or opposing the motion, ‘including reasonable atorey' ees, ithe court find the motion was made oF opposed in bad ‘without substantial justiiaton or that one or more ofthe requirements of the subpoena was oppressive.” The County defendants have incurred expenses totaling $3,311.50 in conneetion with this Motion and the related Ex Parte Application, [Spaulding Deel, $11] Mr. Preston fur to sper for his deposition pursuant to subpoena was without substantial justification. Accordingly, thd County defendants ae ented tan award of sanctions under Code of Civil Procedure §19872, payable by Mr. Preston and his attomey, John Kelly, in the aroun! of $3,311.50. NOTICE OF WOTION AND MOTION 1) TO COMPEL ATTENDANCE AND TESTIMONY AT DEPOSTTIONT @) FOR” DETERMINATION OF CONTEMET: AND (3) REQUEST FOR SANCTIONS.IV, CONCLUSION Tor the reasons sel forth above, the County defendants respectfully request that this Court rant the present Motion and enter an Order compelling the attendance and testimony of Ronald Preston at his deposition in Santa Rosa atthe office of Spaulding, MeCullough & Tansil within one week ofthe date the Court signs its Oder granting the present Motion. The County defendant further request an order requiring Mr. Presion and his attorney, John Kelly, to pay a penalty of $500, plus damages and monetary sanctions of $3,311.50, tothe County defendants, forthe statutory penalty plus reasonable attomeys’ fees incurred in connection with this Motion andthe related Ex Parte Application. Dated: Aprit 20, 2010 ‘SPAULDING MeCULLOUGH & TANSIL LLP ‘Attomeys for Defendants COUNTY OF SONOMA, JO WEBER, SALLY LIEDHOLM, MICHAEL BREWSTER and KAREN STAGG-HOURIGAN + AB to 'NOTICEOF WOTTON AND MOTION (1) TO CONPEL ATTENDANCE AND TESTINONY AT DEPOSITION (2) FOR TERMINATION OF CONTEMPT: AND 3) REQUEST FOR SANCTIONS,