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

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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. 27 28 ______________________________________________________________________________ 2 Plaintiffs’ Reply To Defendant’s Opposition To Motion To Compel Depositions Of Officer Frank Brisslinger And Officer Martin Polo
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. ______________________________________________________________________________ 3 Plaintiffs’ Reply To Defendant’s Opposition To Motion To Compel Depositions Of Officer Frank Brisslinger And Officer Martin Polo
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Plaintiffs' Reply To Defendant's Opposition To Motion To Compel ...

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