Plaintiffs' Reply To Defendant's Opposition To Motion To Compel ...

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HIEPLER & HIEPLER
A Professional Partnership
MARK O. HIEPLER, CSB NO. 140977
TERRY L. TRON, CSB NO. 151151
JAMES D. McGINLEY, CSB NO. 158913
GINA M. CLEMOW, CSB. NO. 218376
500 Esplanade Drive, Suite 1550
Oxnard, California 93036
Telephone: (805) 988-5833
Facsimile: (805) 988-5828
Attorneys for Plaintiffs
TAMMY KRIEGER and RONNIE BASSETT
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF VENTURA
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TAMMIE KREIGER, an individual, and
RONNIE BASSETT, an individual,
v.
Plaintiffs,
CITY OF OXNARD, an incorporated municipality;
and DOES 1 through 100, Inclusive,
Defendants.
CASE NO. CIV 245237
PLAINTIFFS’ REPLY TO DEFENDANT’S
OPPOSITION TO MOTION TO COMPEL
DEPOSITIONS OF OFFICER FRANK
BRISSLINGER AND OFFICER
MARTIN POLO
Date: April 27, 2007*
Time: 8:30 a.m.
Place: Dept. 41
Hon. Frederick H. Bysshe, Jr.
* advanced from May 1, 2007, per Defendant’s
Ex Parte Application to Advance Hearing
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Plaintiffs TAMMY KRIEGER and RONNIE BASSETT hereby provide their reply to defendant
CITY OF OXNARD’s opposition to the motion to compel attendance and testimony at deposition of
Defendant CITY OF OXNARD employees Frank Brisslinger and Martin Polo.
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Plaintiffs’ Reply To Defendant’s Opposition To Motion To Compel Depositions Of
Officer Frank Brisslinger And Officer Martin Polo

TABLE OF CONTENTS
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I. INTRODUCTION...................................................................................................................... 1
II.
III.
IV.
Page
DEFENDANT’S OPPOSITION FAILED TO ESTABLISH THAT THE CITY
EMPLOYEES DIRECTLY RESPONSIBLE FOR CINDY CONOLLY’S DEATH
SHOULD NOT BE COMPELLED TO PROVIDE THEIR SWORN TESTIMONY,
UNDER OATH, ABOUT THE EVENTS GIVING RISE TO THIS ACTION............................ 1
DEFENDANT CITY OF OXNARD’S CITATION TO THOMAS v. LUONG
FAILS TO DEFEAT THE MOTION TO COMPEL THE OFFICERS’ DEPOSITIONS............. 2
A. Thomas v. Luong Did Not Involve A Wrongful Death Case Where
Only The Defendant Had Knowledge Of The Events Giving Rise To The Action............ 3
B. Thomas v. Luong Did Not Involve A Motion To Compel ................................................ 3
C. Thomas v. Luong Did Not Involve A Governmental Entity ............................................. 4
AT LEAST ONE OF THE OFFICERS INVOLVED HAS BEEN KNOWN TO GIVE
FALSE STATEMENTS IN AN INVESTIGATION, AND LATER CHANGE HIS
STATEMENT UNDER OATH; THUS PLAINTIFFS MUST BE AFFORDED THE
OPPORTUNITY TO QUESTION THE OFFICERS UNDER OATH, ABOUT CINDY
CONOLLY’S DEATH............................................................................................................... 4
V. DEFENDANTS ARGUMENT THAT DEPOSING THE OFFICERS WILL “ADD
ENORMOUS MENTAL GRIEF AND DISTRESS” TO THEM WHOLLY FAILS TO
DEFEAT THE MOTION ........................................................................................................... 6
VI. CONCLUSION.......................................................................................................................... 7
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Plaintiffs’ Reply To Defendant’s Opposition To Motion To Compel Depositions Of
Officer Frank Brisslinger And Officer Martin Polo

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I.
INTRODUCTION
Defendant City of Oxnard, a public entity, hopes this Court will deny plaintiffs’ motion to
compel, and forever keep the sworn truth relating to Cindy Conolly’s tragic death a hidden secret.
The California Supreme Court long ago set forth that the discovery statutes were intended
“to give greater assistance to the parties in ascertaining the truth and in checking and preventing
perjury.” Greyhound . Superior Court (Merced County) (1961) 56 Cal.2d 355, 376. It is also firmly
established that “the discovery statutes vest a wide discretion on the trial court in granting or denying
discovery,” and that the discovery statutes “must be construed liberally in favor of disclosure unless the
request is clearly improper by virtue of well-established causes for denial.” Id. at 377-78.
Defendant has not set forth a well-established cause for denial of this basic discovery. Thus, this
Court should exercise its discretion to compel these Officers to come forth and tell, for the first time
under oath, what took place that tragic June 12, 2006, when Cindy Conolly was horrifically ran over by
a 6,500 pound SUV police vehicle while she lay in a bright blue one-piece swimming suit on the beach
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in Oxnard.
II.
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DEFENDANT’S OPPOSITION FAILED TO ESTABLISH THAT THE CITY EMPLOYEES
DIRECTLY RESPONSIBLE FOR CINDY CONOLLY’S DEATH SHOULD NOT BE
COMPELLED TO PROVIDE THEIR SWORN TESTIMONY, UNDER OATH, ABOUT THE
EVENTS GIVING RISE TO THIS ACTION
Defendant’s Opposition failed to refute the fact that these officers have never provided sworn
testimony about Cindy Conolly’s death. See Defendant’s Opposition.
Defendant’s Opposition further failed to refute the fact that it failed to serve any Objections to
the deposition notices, thereby waiving any right to object. Id.
Defendant’s sole opposition to the Motion to Compel is its assertion that to proceed with the
depositions when the City of Oxnard has offered to stipulate to liability “violates common sense.” See
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Opposition, p. 3:16-20.
On the contrary, refusing to allow the only two public employees directly
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Plaintiffs’ Reply To Defendant’s Opposition To Motion To Compel Depositions Of
Officer Frank Brisslinger And Officer Martin Polo

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responsible for the horrific death at issue to be questioned under oath about their actions is what violates
common sense.
The defendant in this case is a governmental entity – the City of Oxnard. The public entity
involved must not be allowed to hide the truth from the plaintiffs, and the public, by offering to stipulate
to liability. As noted in the Motion, defendant’s offered stipulation has been refused, and will continue
to be refused, until such time as these depositions are taken.
Where a public entity is involved as a defendant, the fundamental judicial tenet “the whole truth,
and nothing but the truth” especially applies. The truth about the conduct of these public employees
that caused a needless death must be discovered, regardless of whether or not the entity has agreed it is
liable for the conduct of its employees. Plaintiffs, and the public, have a right to know the truth about
the events leading to Cindy Conolly’s death.
This Court has wide discretion in ruling on this Motion. Greyhound, supra, 56 Cal.2d 378. In
addition, the California Supreme Court in Greyhound set forth that one of the purposes of the Discovery
Act is “to give greater assistance to the parties in ascertaining the truth and in checking and preventing
perjury.” Id. at 375. This fundamental purpose will readily be met by compelling the Officers’
testimony in the case at bar.
Defendant’s offer to stipulate to liability, which has not been accepted, fails to defeat the Motion,
and these officers’ depositions, at a minimum, must be compelled.
III.
DEFENDANT CITY OF OXNARD’S CITATION TO THOMAS v. LUONG
FAILS TO DEFEAT THE MOTION TO COMPEL THE OFFICERS’ DEPOSITIONS
Defendant’s opposition cites to Thomas v. Luong (1986) 187 Cal.App.3d 76, in support of its
opposition. Defendant was asked repeatedly in the meet and confer process to provide authority in
support of its position. See meet and confer letters, Exhibits 8 – 13 to the Motion. Defendant never
provided citation to the Thomas case prior to its Opposition to the Motion to Compel. That is because
this reliance on Thomas is misplaced, on any one of three grounds.
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Plaintiffs’ Reply To Defendant’s Opposition To Motion To Compel Depositions Of
Officer Frank Brisslinger And Officer Martin Polo

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A. Thomas v. Luong Did Not Involve A Wrongful Death Case Where
Only The Defendant Had Knowledge Of The Events Giving Rise To The Action
First and foremost, Thomas does not apply to defeat the Motion even though the opinion
suggests, in dicta, that if the defendant’s offer to stipulate to liability had been accepted, his deposition
would not have been necessary. This dicta cannot appropriately be applied to the case at bar, as Thomas
did not involve a wrongful death where the facts surrounding the death were solely known to the
defendant. In Thomas, a simple automobile vs. automobile car accident case, plaintiff was alive and
well, albeit injured, after the accident, and thus plaintiff did not need to search for the truth about what
happened in the accident.
The present case is starkly contrasted. Here, plaintiffs were not participants in the events giving
rise to this action. Here, the sole participants in the death of plaintiffs’ mother are defendant City of
Oxnard employees. Here, Officers Brisslinger and Polo are the only people who know what happened
on the beach that tragic day.
Thus, the comments of the court in Thomas do not apply to defeat
compelling their depositions in this case, and these officers must be compelled to testify, under oath.
B. Thomas v. Luong Did Not Involve A Motion To Compel
Second, the Court in Thomas was not addressing the issue of a motion to compel. In Thomas,
the defendant failed to appear at his deposition and failed to answer written discovery. Plaintiff’s
counsel pursued a motion to strike the defendant’s answer and to enter his default. The trial court
granted the motion, striking the answer and entering the defendant’s default.
The defendant appealed, and the sole issue addressed in the appeal was “whether the trial court
abused its judicial discretion by imposing the ultimate sanction of striking the defendant’s answer and
entering his default.” Id. at 80.
court.
There was no issue concerning a motion to compel before the trial
The Court of Appeal found that the trial court’s actions in striking the answer and entering
default “resulted in a monetary judgment against the defendant without his having had the opportunity to
contest any aspect of plaintiff’s case, including damages.” Id. The Court concluded that the trial court
abused its discretion and that the judgment must be set aside. Id. at 81.
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Plaintiffs’ Reply To Defendant’s Opposition To Motion To Compel Depositions Of
Officer Frank Brisslinger And Officer Martin Polo

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The present case does not involve plaintiff moving to strike defendant’s answer nor a motion to
enter default. The present case does not involve depriving defendant of its right to contest any aspect of
plaintiff’s damages. Thus, Thomas does not apply to support denying plaintiff’s Motion to Compel.
C. Thomas v. Luong Did Not Involve A Governmental Entity
Third, Thomas does not apply to support denying plaintiffs’ Motion because the case did not
involve any governmental entities. Rather, the Thomas case involved a motor vehicle accident between
two private parties. Neither party was a governmental entity. On the contrary, in the present case the
defendant is a governmental entity – the City of Oxnard. It is axiomatic that a public entity is subject to
a higher standard with respect to the dissemination of information regarding the entity’s actions. See,
e.g. California Public Records Act, California Government Code Section 6250 et. seq. Again, Thomas
does not apply to defeat the Motion.
Thus, any one of three arguments establishes that Thomas v. Luong does not apply to defeat
plaintiffs’ Motion to Compel.
IV.
AT LEAST ONE OF THE OFFICERS INVOLVED HAS BEEN KNOWN TO GIVE FALSE
STATEMENTS IN AN INVESTIGATION, AND LATER CHANGE HIS STATEMENT UNDER
OATH; THUS PLAINTIFFS MUST BE AFFORDED THE OPPORTUNITY TO QUESTION
THE OFFICERS UNDER OATH, ABOUT CINDY CONOLLY’S DEATH
Defendant’s Opposition suggests the “extensive” Oxnard Police Department and Ventura County
District Attorney reports “already detail how the accident occurred.” Opposition, p. 2:6-7. Defendant,
however, fails to point to any sworn testimony setting forth those “details,” and offers no suggestion that
the Officers directly involved – nor anyone – has ever provided sworn testimony regarding the death of
Ms. Conolly. It is undisputed that the statements provided by Officer Brisslinger and Officer Polo
during the investigation in this case were not given under oath.
Plaintiff has discovered that that there is at least one other case in which Officer Polo both gave a
statement during an investigation and also wrote a police report which said one thing, and then later –
under oath – admitted that his statement was not true:
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Plaintiffs’ Reply To Defendant’s Opposition To Motion To Compel Depositions Of
Officer Frank Brisslinger And Officer Martin Polo

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“Q: All right. Now, you wrote a police report regarding this incident, didn’t you
A: Yes, I did.
Q: And in that police report, did you ever identify the driver of the vehicle, the confidential
informant by name
A: No, I did not.
Q: And you brought the case in to me to review; is that correct
A: Yes, I did.
Q: And when you brought the case in to me for review, what, if anything, did you tell me
regarding the identity of the driver
A: You asked if I was able to find the driver of the vehicle. I told you that I did not. I told
you that the driver had slipped into the store and he was not contacted.
Q: And do you remember on October 30, 1997, in court a conversation with myself and with
Mr. Freed
A: Yes, I do.
Q: And do you remember on that occasion telling Mr. Freed and myself anything regarding
the identity of the driver
A: Yes, I did.
Q: What did you tell us
A: I told you that he was not an informant, and I told you that I didn’t know who he was.
Q: That was not true
A: It was not true.”
See Reporter’s Transcript of Preliminary Hearing, Exhibit 1 hereto, p. 16:27 – 17:25. 1
Because Officer Polo was found to have lied in an investigation, and lied in a police report, the
Office of the District Attorney now must provide defense counsel in criminal matters the documents
relating to this incident. See Exhibit 1.
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1 Pursuant to California Evidence Code Section 452(d), Plaintiffs request this Court take judicial notice
of the records of the Court, the Reporter’s Transcript of Preliminary Hearing, attached hereto as
Exhibit 1.
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Plaintiffs’ Reply To Defendant’s Opposition To Motion To Compel Depositions Of
Officer Frank Brisslinger And Officer Martin Polo

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Thus, on at least one other occasion – in a case in which Officer Polo was not even potentially
liable for his conduct -- Officer Polo has said one thing during an investigation, and then later admitted
lying when he was questioned under oath. In the present case – where Officer Polo is potentially liable
for his conduct -- it is therefore entirely conceivable that he would not tell the truth to investigators.
It is therefore imperative that these officers be forced to submit to an examination under oath, so
that the truth about this incident can be discovered.
V.
DEFENDANTS ARGUMENT THAT DEPOSING THE OFFICERS WILL “ADD ENORMOUS
MENTAL GRIEF AND DISTRESS” TO THEM WHOLLY FAILS TO DEFEAT THE MOTION
Defendant’s contention in its opposition that “it is inconceivable what such depositions could
achieve, other than adding enormous mental grief and distress to the already remorseful officers” is
without merit. See Opposition, p. 4:4-6. Plaintiffs acknowledge that it may be emotional for these
officers to have to provide sworn deposition testimony, but any distress they may suffer is far
outweighed by the distress plaintiffs have suffered in not being able to question these officers under oath
about how their mother died. Plaintiffs must be afforded the right to know the truth about how their
mother died, and the public has the right to know the facts surrounding this case as well. Plaintiffs, from
the beginning, have insisted that the Officers’ depositions under oath are a condition precedent to
resolution of this case outside of trial. These Officers’ testimony, under oath, may allow the public and
the plaintiffs – as well as the defendant and these two officers -- to initiate the first steps towards
closure in this tragic death case.
In addition, if plaintiffs’ Motion to Compel is denied, plaintiffs will have no alternative but to
sue the officers individually, because if their conduct rose to the level of intentional or reckless disregard
for the rights and safety of others, plaintiffs are entitled to additional compensation from the officers
individually, including but not limited to punitive damages. As set forth in the Motion, and not
addressed at all in defendant’s Opposition, plaintiffs elected to not pursue the officers individually at the
outset of this case, when they readily could have. Instead, plaintiffs elected to give the officers the
opportunity to first testify under oath. Plaintiffs elected to wait until such time as they were afforded the
officers’ depositions, to confront them with evidence and seek their honest explanations, to determine
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Plaintiffs’ Reply To Defendant’s Opposition To Motion To Compel Depositions Of
Officer Frank Brisslinger And Officer Martin Polo

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whether there is potential individual liability. Plaintiffs submit it would far more prudent, and in the
officers’ best interests, to allow the depositions to proceed now, in this action, and potentially obviate
any legal action taken against the officers individually. By ruling in favor of plaintiffs, this Court will
provide these Officers the opportunity to tell the truth, under oath, and potentially exonerate themselves
from any individual liability.
Moreover, Defendant’s Opposition fails to address the unanswered questions that were raised in
plaintiffs’ Motion. One such issue involves a tape recording made at the scene that fateful day which is
missing a portion of the recording. It is particularly disturbing that Officer Polo’s recording of the
investigation that day was stopped and a portion of it apparently taped over. . . When the tape recorder
was reactivated, Polo was telling someone, “he didn’t listen,” and the next phrase was erased. . . .
What was being concealed
The City of Oxnard, in fighting this Motion and seeking to prevent the depositions of the
Officers, is running from its first opportunity to tell the truth, under oath, whereas such a governmental
entity should be promoting full and open sworn fact-finding. The City must not be allowed to conduct
itself in this manner, and the depositions of Officers Brisslinger and Polo must be compelled. The
family of Cindy Conolly, at a minimum, based upon the law and the uncertain, unsworn facts of this
case, deserve to hear, under oath, what happened to their mother, directly from the two people driving
the vehicle that killed their mother. The sworn testimony from the Officers has the possibility of giving
closure to all parties involved in this tragic matter.
VI.
CONCLUSION
Based upon the arguments and evidence set forth in the moving papers, and the argument set
forth herein, plaintiffs respectfully request their Motion to Compel the depositions of Officers Frank
Brisslinger and Martin Polo be granted in their entirety, and these Officers ordered to provide full and
complete deposition testimony within the next twenty (20) days.
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Plaintiffs’ Reply To Defendant’s Opposition To Motion To Compel Depositions Of
Officer Frank Brisslinger And Officer Martin Polo

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Plaintiffs further request an award of sanctions, as set forth in the Motion, as defendant City of
Oxnard was not substantially justified in opposing this Motion.
DATED: May 7, 2007
HIEPLER & HIEPLER
A Professional Partnership
By: __________________________
MARK O. HIEPLER
TERRY L. TRON
Attorneys for Plaintiffs
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Plaintiffs’ Reply To Defendant’s Opposition To Motion To Compel Depositions Of
Officer Frank Brisslinger And Officer Martin Polo

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STATE OF CALIFORNIA )
) ss.
COUNTY OF VENTURA )
PROOF OF SERVICE
1013a(3) C.C.P. Revised 1995
I am employed in the County of Ventura, State of California. I am over the age of 18 and not a
party to the within action; my business address is 500 Esplanade Drive, Suite 1550, Oxnard, California
93036.
On April 24, 2007, I served copies of the following document described as: PLAINTIFFS’
REPLY TO DEFENDANT’S OPPOSITION TO MOTION TO COMPEL DEPOSITIONS OF
OFFICER FRANK BRISSLINGER AND OFFICER MARTIN POLO upon the interested party(ies)
in this action as follows:
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Alan E. Wisotsky, Esq.
James S. Eicher, Esq.
LAW OFFICES OF ALAN E. WISOTSKY
300 Esplanade Drive, Suite 1500
Oxnard, CA 93036
Telephone: (805) 278-0920
Facsimile: (805) 278-0289
PERSONAL DELIVERY: By delivering a true copy thereof by hand to the person or office, as
indicated, at the address(es) set forth above.
I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct.
Executed on April 24, 2007, at Oxnard, California.
___________________________________
Shane A. Ishii
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Plaintiffs’ Reply To Defendant’s Opposition To Motion To Compel Depositions Of
Officer Frank Brisslinger And Officer Martin Polo

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Add what type of auto case
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Plaintiffs’ Reply To Defendant’s Opposition To Motion To Compel Depositions Of
Officer Frank Brisslinger And Officer Martin Polo