Plaintiffs' Notice Of Motion And Motion To Compel Depositions Of ...

12345678910HIEPLER & HIEPLERA Professional PartnershipMARK O. HIEPLER, CSB NO. 140977TERRY L. TRON, CSB NO. 151151JAMES D. McGINLEY, CSB NO. 158913GINA M. CLEMOW, CSB. NO. 218376500 Esplanade Drive, Suite 1550Oxnard, California 93036Telephone: (805) 988-5833Facsimile: (805) 988-5828Attorneys for PlaintiffsTAMMY KRIEGER and RONNIE BASSETTSUPERIOR COURT OF THE STATE OF CALIFORNIAFOR THE COUNTY OF VENTURA1112131415161718192021222324TAMMIE KREIGER, an individual, andRONNIE BASSETT, an individual,v.Plaintiffs,CITY OF OXNARD, an incorporated municipality;and DOES 1 through 100, Inclusive,Defendants.CASE NO. CIV 245237PLAINTIFFS’ NOTICE OF MOTION ANDMOTION TO COMPEL DEPOSITIONS OFDEFENDANT CITY OF OXNARDEMPLOYEES OFFICER FRANKBRISSLINGER AND OFFICER MARTINPOLO; MEMORANDUM OF POINTS ANDAUTHORITIES; REQUEST FOR $4,618.80IN SANCTIONS[CCP §2025.010, et seq.][Declaration Of Mark O. Hiepler And Terry L.Tron, Together With Supporting Evidence,Filed Concurrently Herewith]Date: May 1, 2007Time: 8:30 a.m.Place: Dept. 41Hon. Frederick H. Bysshe, Jr.25262728TO DEFENDANT AND ITS ATTORNEYS OF RECORD:PLEASE TAKE NOTICE that on April 27, 2007 at 8:30 a.m., or as soon thereafter as counselmay be heard, plaintiffs TAMMY KRIEGER and RONNIE BASSETT will and hereby do move thisCourt in Department 41, located at 800 South Victoria Avenue, Ventura, California, for an order1______________________________________________________________________________Plaintiffs’ Notice Of Motion And Motion To Compel Depositions Of Defendant City Of Oxnard EmployeesOfficer Frank Brisslinger And Officer Martin Polo; Memorandum Of Points And Authorities;Request For $4,618.80 in Sanctions

1234567891011121314compelling attendance and testimony at deposition of Defendant CITY OF OXNARD employees FrankBrisslinger and Martin Polo.Please take further notice that pursuant to California Code of Civil Procedure Section2025.450(c)(1), plaintiffs seek $4,618.80 in sanctions against defendant CITY OF OXNARD.This Motion is made upon the grounds that Plaintiffs provided proper notice of the deponents’depositions in a timely manner in accordance with Code of Civil Procedure Section 2025.010 et seq.,and defendant CITY OF OXNARD refuses to produce these witnesses for deposition.This Motion is based upon this Notice, the attached Memorandum of Points and Authorities, theDeclarations of Mark O. Hiepler and Terry L. Tron, together with supporting evidence, filedconcurrently herewith, and upon all the pleadings, records, and papers on file herein, as well as, anydocuments incorporated by reference, and upon such further evidence and argument as may be presentedat the hearing on this Motion.DATED: May 7, 2007HIEPLER & HIEPLERA Professional Partnership151617181920By: __________________________MARK O. HIEPLERTERRY L. TRONAttorneys for Plaintiffs21222324252627282______________________________________________________________________________Plaintiffs’ Notice Of Motion And Motion To Compel Depositions Of Defendant City Of Oxnard EmployeesOfficer Frank Brisslinger And Officer Martin Polo; Memorandum Of Points And Authorities;Request For $4,618.80 in Sanctions

TABLE OF CONTENTS12345678910111213141516171819202122232425262728MEMORANDUM OF POINTS AND AUTHORITIES ......................................................................... 1I. INTRODUCTION...................................................................................................................... 1II. STATEMENT OF FACTS......................................................................................................... 1III.IV.i______________________________________________________________________________Plaintiffs’ Notice Of Motion And Motion To Compel Depositions Of Defendant City Of Oxnard EmployeesOfficer Frank Brisslinger And Officer Martin Polo; Memorandum Of Points And Authorities;Request For $4,618.80 in SanctionsPageA. Cindy Conolly’s Tragic And Inexplicable Death............................................................. 1B. Cindy Conolly’s Children Begin Their Search For The Truth About HowOfficers Brisslinger And Polo Could Possibly Have Run Over And KilledTheir Mother Without Realizing What They Had Done................................................... 3C. Over 180 Days Passed, And Still The City Of Oxnard Did Not Provide AnyPolice Report Regarding The Death Of Cindy Conolly; They Did Not ProvideAny Statements Of The Officers Involved And They Did Not Allow Plaintiffs’Counsel To Question The Officers.................................................................................. 4D. 215 Days After Ms. Conolly’s Death, A Police Report Is Finally Released ToPlaintiffs -- But The Report Surprisingly Does Not Contain Any StatementsUnder Oath Of Either Officer Involved; Instead, The Officers Had Only Been“Interviewed” By Fellow Officers................................................................................... 4E. The District Attorneys’ Office Also Conducted An “Investigation,” But TheyAlso Did Not Obtain Any Statements Under Oath, Nor Even Interview TheOfficers Again; Instead, They Merely Relied Upon The Interviews Conducted ByOxnard Police Which Were Not Conducted Under Oath ................................................. 5F. Plaintiffs Therefore Continue To Request To Take The Officers’ Depositions,To Discover The Officers’ Sworn Testimony About How They Came To RunOver And Kill Cindy Conolly And To Evaluate The Officers’ Credibility AndDemeanor ....................................................................................................................... 6G. Defendant City Of Oxnard Steadfastly Refused To Produce The Officers ForDeposition, Despite Plaintiffs’ Multiple “Meet and Confer” Efforts ................................ 7THE OFFICERS’ DEPOSITIONS WHICH ARE THE SUBJECT OF THIS MOTIONWERE PROPERLY NOTICED ................................................................................................. 8PLAINTIFFS’ EFFORTS TO MEET AND CONFER REGARDING THIS DISPUTEHAVE BEEN REJECTED BY DEFENSE COUNSEL .............................................................. 9

TABLE OF CONTENTS1234567891011121314151617181920PageV. THIS COURT MAY PROPERLY COMPEL THE DEPOSITIONS OFOFFICERS BRISSLINGER AND POLO................................................................................... 9VI.A. Officers Brisslinger And Polo Have Never Provided Any Statement Under OathRegarding The Events Leading To The Death Of Cindy Conolly .................................. 10B. Plaintiffs Are Entitled To Question These Officers, Under Oath, To Be Able ToAssess Their Demeanor And Credibility To Determine If They Are Telling TheTruth About What Transpired That Day........................................................................ 10C. Defendant City Of Oxnard Failed To Serve Any Objection To The DepositionNotices, Thereby Waiving Any Objections ................................................................... 11D. The City of Oxnard’s Offer To Stipulate To Liability Was Refused, And DoesNot Entitle The City To Avoid Having The Responsible City Employees AppearAnd Testify Under Oath At A Deposition ..................................................................... 11E. Justice Requires That The Depositions Of These Officers Directly Involved InCindy Conolly’s Death Be Compelled, So The Sworn Truth About This IncidentCan Be Disclosed To Plaintiffs, And The Public Can Be Protected From FutureHarm ............................................................................................................................ 12F. Plaintiffs, Acting In Good Faith, Elected Not To Initially Name The IndividualOfficers In A Lawsuit, But Instead Chose To Wait Until They Could ConfrontThe Officers At Their Depositions; Thus, Compelling The Officers’ DepositionsNow May Avoid Subjecting Them To Individual Liability............................................ 13PLAINTIFFS ARE ENTITLED TO SANCTIONSFOR HAVING TO BRING THIS MOTION TO COMPEL...................................................... 15VII. CONCLUSION........................................................................................................................ 152122232425262728ii______________________________________________________________________________Plaintiffs’ Notice Of Motion And Motion To Compel Depositions Of Defendant City Of Oxnard EmployeesOfficer Frank Brisslinger And Officer Martin Polo; Memorandum Of Points And Authorities;Request For $4,618.80 in Sanctions

TABLE OF AUTHORITIES12345678910CasesPacific Tel. & Tel. Co. v. Superior Court(1970) 2 Cal.3d 161 ......................................................................................................................... 15StatutesCode of Civil Procedure Section 2016.050............................................................................................. 9Code of Civil Procedure Section 2025.450............................................................................................. 9Code of Civil Procedure Section 2025.450(c)(1).................................................................................... 2Federal Statutes42 U.S.C.A. § 1983.............................................................................................................................. 14Page111213141516171819202122232425262728iii______________________________________________________________________________Plaintiffs’ Notice Of Motion And Motion To Compel Depositions Of Defendant City Of Oxnard EmployeesOfficer Frank Brisslinger And Officer Martin Polo; Memorandum Of Points And Authorities;Request For $4,618.80 in Sanctions

1234567891011121314151617181920212223242526MEMORANDUM OF POINTS AND AUTHORITIESI.INTRODUCTIONIn this wrongful death action, two Oxnard Police Officers drove a 6,500 pound SUV policevehicle over plaintiffs’ mother, Cindy Conolly, as she lay on the beach in Oxnard sunbathing. TheOfficers ran over her first with the left front tire, then with the left rear tire. The weight of the 6,500pound SUV smashed thirteen (13) of her ribs and fractured her skull, causing her death. The Officersallegedly did not know they had just run over and killed Ms. Conolly, and turned and drove away downthe beach. They received a 911 call approximately 17 minutes later which summoned them back to thelocation, at which time they, in an interview, claim to have first realized what they had done.The instant wrongful death action was initiated against defendant City of Oxnard, which is liableunder the doctrine of respondeat superior for the conduct of the two Oxnard Police Officers.The deponents that are the subject of this Motion to Compel are defendant’s employees, OxnardPolice Officer Frank Brisslinger (“Officer Brisslinger”) and Officer Martin Polo (“Officer Polo”), theindividuals directly responsible for causing the death of plaintiffs’ mother, Cindy Conolly. DefendantCity of Oxnard refuses to produce these two Officers for deposition in this action, forcing plaintiffs tobring the instant Motion to Compel.II.STATEMENT OF FACTSA. Cindy Conolly’s Tragic And Inexplicable DeathIn early June of 2006, decedent Cindy Conolly had traveled from her home in Iowa to attend thewedding of her only son, plaintiff Ronnie Bassett. She stayed at the Embassy Suites Mandalay BeachResort (“the Hotel”), located oceanfront in Oxnard, California. Her daughter, Tammy Krieger, had alsotraveled from her home in Minnesota to California to attend the wedding. The wedding took place onJune 11, 2006. See Plaintiffs’ Complaint, 8. 127281 Plaintiffs request this Court take judicial notice of Plaintiffs’ Complaint, on file in this action.______________________________________________________________________________1Plaintiffs’ Notice Of Motion And Motion To Compel Depositions Of Defendant City Of Oxnard EmployeesOfficer Frank Brisslinger And Officer Martin Polo; Memorandum Of Points And Authorities;Request For $4,618.80 in Sanctions

12345678910111213141516171819202122232425262728The day after her son’s wedding, June 12, 2006, Cindy Conolly had breakfast at a beach sidecafé, Mrs. Olsen’s, with her daughter Tammy and her husband. She then bid them farewell, as theywere traveling up the coast to Northern California. Ms. Conolly then decided to go and sunbathe on thepublic beach in front of the Hotel. At approximately 1:00 p.m., she was lying on the beach, wearing abright blue one-piece swimsuit. She was lying perpendicular to the water line, with her feet extendedtoward the ocean. See Plaintiffs’ Complaint, 9.Also at approximately 1:00 p.m. on June 12, 2006, Officers Brisslinger and Polo were on duty,on patrol in a 6,500 pound Chevrolet Tahoe Sport Utility Vehicle (“Tahoe”). They had chosen thisvehicle for their patrol that day “because of the comfort of it and the two reclining seats.” See PoloInterview, Exhibit 16 to the Hiepler Decl., 13, p. 102. The Tahoe was driven by Senior Officer FrankBrisslinger. Senior Officer Martin Polo was a front-seat passenger.After patrolling variousneighborhoods, Officer Brisslinger suggested that they drive out to the beach, “because it was a nice andsunny day.” Id. at p. 103.They gained access to the beach from the south parking lot of the Embassy Suites Hotel, wherethere is a sidewalk and concrete path that leads onto the sand and beach. Id. They had to drive up andover a curb to get to the concrete path. Id. Officer Brisslinger “hit the curb hard and may have scaredsome people on the beach walkway.” Id. Indeed, one witness, Jinky Quemuel, was walking on the pathat the time the Officers were approaching. See Quemuel Interview, Exhibit 18 to the Hiepler Decl., 15at p. 124. She stated that she was “startled” because they came up so fast. Id. The witness thought theywere going to an emergency, but then she looked in the vehicle and saw them “laughing and having agood time.” Id. Officer Polo was reclined back in his seat, without a seatbelt on. Polo Interview,Exhibit 16 to the Hiepler Decl., 13, p. 106-07. The car stereo was playing music, and Officer Polohad his foot up on the dashboard. Id. at p. 107. This occurred within one minute of the Officers runningover Ms. Conolly. . .The Officers proceeded onto the beach, driving the 6,500 pound Tahoe right over Cindy Conolly,as she lay on the beach. First the left front wheel drove directly over her head, back and buttocks,followed by the left rear tire also driving directly over her head, back and buttocks. See WitnessMichael Arthur’s Interview, Exhibit 17 to the Hiepler Decl., 14, p. 112.______________________________________________________________________________2Plaintiffs’ Notice Of Motion And Motion To Compel Depositions Of Defendant City Of Oxnard EmployeesOfficer Frank Brisslinger And Officer Martin Polo; Memorandum Of Points And Authorities;Request For $4,618.80 in Sanctions

12345678910111213141516171819202122232425262728Officers Frank Brisslinger and Martin Polo were completely oblivious to their surroundings andclaim to have been unaware that they had run over Cindy Conolly. Id. A swimmer in the ocean whowitnessed the horrid event began yelling at the police officers, waiving his hands and running after thepolice vehicle trying to get them to stop. Id. at 111-113. The Officers claim they did not notice him atall, and after running over Ms. Conolly, they then turned their vehicle to the right, and proceeded downthe beach, thereafter leaving the beach and resuming their normal street patrol. Id.; see also Plaintiffs’Complaint, 11-13.Officers Frank Brisslinger and Martin Polo were called back to the scene approximatelyseventeen (17) minutes later in response to a 911 call. Polo Interview, Exhibit 16 to the Hiepler Decl., 13, p. 105. It was only at this time, according to Officer Polo’s statement to his fellow officers, thatthey realized that they had run over and crushed Ms. Conolly. Shortly thereafter, Cindy Conolly waspronounced dead at the scene of the incident. She died due to blunt force head and chest injuries.Plaintiffs’ Complaint, 14-15.B. Cindy Conolly’s Children Begin Their Search For The Truth About HowOfficers Brisslinger And Polo Could Possibly Have Run Over And KilledTheir Mother Without Realizing What They Had DonePlaintiffs retained counsel shortly after the shocking death of their mother, as they immediatelyknew the tragic death was due to wrongful conduct. Plaintiffs’ and their counsel then proceeded withattempting to determine how it was possible that these Officers had driven a vehicle over Ms. Conolly,who was lying on the beach in a bright blue swimming suit, in plain sight – and how they could not haveknown that they had done so. Declaration of Mark O. Hiepler (“Hiepler Decl.”), 2.In July 2006, the month after the death, plaintiffs’ counsel was informed by Assistant Chief MikeMatlock that the police report regarding this tragic death was close to completion and would be providedto the family. Hiepler Decl., 3. In August, when no police report was forthcoming, plaintiffs’ counselwrote to counsel for the City of Oxnard, again requesting a copy of the police report, as well asproposing that plaintiffs informally be provided the Officers’ statements about the events leading to Ms.Conolly’s death. Id. Plaintiffs’ counsel offered to take a pre-litigation “statement under oath” ofOfficers Brisslinger and Polo to potentially obviate the need for litigation. Id.Plaintiffs’ counsel’srequests were not honored. Id.______________________________________________________________________________3Plaintiffs’ Notice Of Motion And Motion To Compel Depositions Of Defendant City Of Oxnard EmployeesOfficer Frank Brisslinger And Officer Martin Polo; Memorandum Of Points And Authorities;Request For $4,618.80 in Sanctions

12345678910111213141516171819202122232425262728C. Over 180 Days Passed, And Still The City Of Oxnard Did Not Provide AnyPolice Report Regarding The Death Of Cindy Conolly; They Did Not ProvideAny Statements Of The Officers Involved And They Did Not Allow Plaintiffs’Counsel To Question The OfficersAfter months passed, plaintiffs were still not provided any police report, nor were they providedany opportunity to question the Officers involved. Hiepler Decl., 4. Even the public questioned theCity’s failure to produce the report, as evidenced by various Ventura County Star editorials on thesubject. Id.Deciding not to wait any longer, in October plaintiffs proceeded with submitting a GovernmentalEntity Claim to the City of Oxnard, pursuant to the Tort Claims Act.Hiepler Decl., 5. Plaintiffselected not to pursue the Officers individually at this time. Id. The City of Oxnard failed to act inresponse to plaintiffs’ claim within the 45 days after it was filed, which made the claim deemed rejectedby operation of law pursuant to Government Code Section 912.4. Hiepler Decl., 6.In December, still no police report was made available to plaintiffs or their counsel. HieplerDecl., 7. Plaintiffs then proceeded with initiating the instant civil action, in which they would beentitled to depose the officers involved under oath -- and finally learn the truth about how their motherhad died. Plaintiffs’ Complaint was filed and served on December 11, 2006. Id.Following receipt of defendant’s Answer to the Complaint, on January 17, 2007 plaintiffs servednotices setting several depositions -- the most important of which were the depositions of OfficerBrisslinger and Officer Polo, the two officers directly involved in Ms. Conolly’s death. The Officers’depositions were set for February 26, 2007.Hiepler Decl., 8 and Notice Of Taking Deposition OfOfficer Frank Brisslinger And Request For Production Of Documents and Notice Of Taking DepositionOf Officer Martin Polo And Request For Production Of Documents, Exhibits 1 and 2 thereto.D. 215 Days After Ms. Conolly’s Death, A Police Report Is Finally Released ToPlaintiffs -- But The Report Surprisingly Does Not Contain Any StatementsUnder Oath Of Either Officer Involved; Instead, The Officers Had Only Been“Interviewed” By Fellow OfficersOn January 23, 2007 -- over 215 days after Ms. Conolly was killed – plaintiffs were finallyprovided a copy of a formal report prepared by the Oxnard Police Department. Hiepler Decl., 10.______________________________________________________________________________4Plaintiffs’ Notice Of Motion And Motion To Compel Depositions Of Defendant City Of Oxnard EmployeesOfficer Frank Brisslinger And Officer Martin Polo; Memorandum Of Points And Authorities;Request For $4,618.80 in Sanctions

12345678910111213141516171819202122232425262728Shockingly, nowhere in the Traffic Report is there a statement provided by either OfficerBrisslinger or Officer Polo, under oath, in which they are sworn to tell the truth! Id. On the contrary,the report contains only an “interview” of Officer Brisslinger – conducted by a fellow officer whileBrisslinger’s own personal criminal defense attorney present. See Brisslinger Interview, Exhibit 15 tothe Hiepler Decl., 12, pp. 71-101. Likewise, Officer Polo was only “interviewed.” See PoloInterview, Exhibit 16 to the Hiepler Decl., 13, pp. 102-108.Moreover, the “interviews” were conducted by other police officers and colleagues of Brisslingerand Polo. . . . Id. Plaintiffs were surprised to learn that the investigation into this shocking death – adeath which no one can comprehend how it possibly occurred – was not investigated by an outsideorganization, such as the Ventura County Sherriff’s Department, or the Santa Barbara PoliceDepartment – some other organization that would have an unbiased interest in the outcome. Instead,this death was investigated by peers within their own department, and Officers Brisslinger and Polowere merely asked narrative, innocuous questions by fellow officers. See Exhibits 15 and 16.E. The District Attorneys’ Office Also Conducted An “Investigation,” But They AlsoDid Not Obtain Any Statements Under Oath, Nor Even Interview The OfficersAgain; Instead, They Merely Relied Upon The Interviews Conducted By OxnardPolice Which Were Not Conducted Under OathThe Ventura County District Attorney’s Office also conducted an “investigation” into the deathof Cindy Conolly. That office released a written report dated January 22, 2007, the same day the City ofOxnard released its Police Report. See Report of the Fatal Traffic Accident (“D.A. Report”), Exhibit 14to the Hiepler Decl., 11.Again, within the D.A. Report, there is not one single statement provided by either OfficerBrisslinger or Officer Polo under oath, in which they are sworn to tell the truth. Id. Indeed, the DistrictAttorneys’ office did not separately question the officers involved. Id. Instead, the D.A. Reportcontains only summaries of the interviews of these officers that had already been conducted by theOxnard Police Department. See Exhibit 14, pp. 14-17; pp. 17-20; pp. 20-25. The District Attorneys’Office did not conduct any other interviews, nor obtain any sworn statements from Officers Brisslingerand Polo.______________________________________________________________________________5Plaintiffs’ Notice Of Motion And Motion To Compel Depositions Of Defendant City Of Oxnard EmployeesOfficer Frank Brisslinger And Officer Martin Polo; Memorandum Of Points And Authorities;Request For $4,618.80 in Sanctions

12345678910111213141516171819202122232425262728F. Plaintiffs Therefore Continue To Request To Take The Officers’ Depositions,To Discover The Officers’ Sworn Testimony About How They Came To Run OverAnd Kill Cindy Conolly And To Evaluate The Officers’ Credibility And DemeanorRealizing that neither officer that had caused Cindy Conolly’s death had ever been questionedunder oath made plaintiffs even more committed in their determination to proceed with the Officers’depositions as soon as possible. Plaintiffs still could not comprehend how these Officers could possiblyhave driven a 6,500 pound SUV over their mother, as she lie on the beach in a bright blue one-pieceswimming suit. Plaintiffs found the Officers’ statements in their “interview” that they just didn’t see herto be wholly lacking in credibility. How is it possible they didn’t see her? At what else were theylooking?. . . Plaintiffs were anxiously waiting for the depositions to proceed, so they could finally hearstraight from the Officers what had happened that fateful day. . . .However, in response to plaintiffs’ Notices of Deposition of the Officers, Alan Wisotsky,counsel for defendant City of Oxnard, sent a letter to plaintiffs’ counsel stating that the depositionscould not proceed as noticed on February 26, 2007, as he was scheduled to undergo back surgery inFebruary. 2In response, plaintiffs’ counsel wrote back to Mr. Wisotsky, asking for dates certain forwhich the depositions could be rescheduled. 3Approximately one week later, when no new dates had yet been provided, plaintiffs’ counselagain wrote to Mr. Wisotsky, asking for dates certain for the depositions. 4Mr. Wisotsky wrote back,stating he was unable to provide dates certain “unless we look toward the middle to the end of March,”due to the recovery period from his surgery. 5He went on to suggest, for the first time, that thedepositions were perhaps not necessary “in view of the City’s admission of liability.” 6Mr. Wisotskyhad earlier communicated that the City of Oxnard was considering stipulating to liability in this case.Plaintiffs’ counsel responded that the end of March would be acceptable. 7Addressing Mr.Wisotsky’s comment about the “necessity” of the depositions, plaintiffs’ counsel pointed out that even ifthere was an agreement to stipulate to liability, public policy still warranted completing the depositions2 See January 31, 2007 letter, Exhibit 3 to the Tron Decl., 2.3 See February 6, 2007 letter, Exhibit 4 to the Tron Decl., 3.4 See February 12, 2007 letter, Exhibit 5 to the Tron Decl., 4.5 See February 14, 2007 letter, Exhibit 6 to the Tron Decl., 5.6 Id.______________________________________________________________________________6Plaintiffs’ Notice Of Motion And Motion To Compel Depositions Of Defendant City Of Oxnard EmployeesOfficer Frank Brisslinger And Officer Martin Polo; Memorandum Of Points And Authorities;Request For $4,618.80 in Sanctions

1234567891011121314151617181920212223of the two officers directly responsible for running over Ms. Conolly and causing her death. 8Further,Plaintiffs’ counsel emphasized that there could be no mediation or settlement discussions until theOfficers were deposed and plaintiffs were provided with what they had requested from the beginning. 9No immediate response to this correspondence was received from defense counsel.G. Defendant City Of Oxnard Steadfastly Refused To Produce The Officers ForDeposition, Despite Plaintiffs’ Multiple “Meet and Confer” EffortsOne week after sending the foregoing letter, having received no response from defense counseland having not been provided with dates for the depositions to proceed, plaintiffs’ counsel again wroteto Mr. Wisotsky, this time identifying the correspondence as a “formal effort to meet and confer”regarding the depositions. 10Officers would be produced for deposition. 11Plaintiffs’ counsel asked for a clear response as to whether or not theMr. Wisotsky responded to this inquiry by writing that he would be sending a stipulation toliability, and that it was his “belief” there would be no need for any discovery concerning liability issuesin the case. 12Plaintiffs’ counsel then sent a second formal meet and confer letter, again requesting a definitiveanswer as to whether or not the Officers would be produced for deposition. 13Mr. Wisotsky responded on March 6, 2007, forwarding a proposed stipulation to liability, andfinally stating, for the first time, that “neither officer will be produced for deposition in light of theenclosed stipulation re admission of liability.” 14Plaintiffs’ counsel, Mark Hiepler, initiated a telephonic meet and confer with Mr. Wisotsky, toattempt to resolve this dispute without need for a Motion. Mr. Hiepler and Mr. Wisotsky discussed theissues, but Mr. Wisotsky continued to refuse to produce the Officers for deposition. Hiepler Decl., 17.24252627287 See February 16, 2007 letter, Exhibit 7 to the Tron Decl., 6.8 Id.9 Id.10 See February 23, 2007 letter, Exhibit 8 to the Tron Decl., 7.11 Id.12 See February 23, 2007 letter, Exhibit 9 to the Tron Decl., 8.13 See February 27, 2007 letter, Exhibit 10 to the Tron Decl., 9.14 See March 6, 2007 letter, Exhibit 11 to the Tron Decl., 10.______________________________________________________________________________7Plaintiffs’ Notice Of Motion And Motion To Compel Depositions Of Defendant City Of Oxnard EmployeesOfficer Frank Brisslinger And Officer Martin Polo; Memorandum Of Points And Authorities;Request For $4,618.80 in Sanctions

123456789101112131415161718192021222324Plaintiffs’ counsel wrote one more time, in a final formal effort to resolve this dispute. 15 Thisletter set forth the chronology of events in the case, and emphasized that plaintiffs were willing to limiteach deposition to five hours, which would not be burdensome or oppressive to the Officers. Plaintiffsfurther offered to conduct the depositions on a date and at a time of defendant’s choice and a location ofdefendant’s choice. Finally, this letter emphasized that plaintiffs would not be willing to participate inmediation of this dispute unless and until these depositions were completed. 16Mr. Wisotsky responded to this final attempt to meet and confer by refusing to produce theofficers for deposition. 17 He offered to have the officers provide a declaration responding to anyquestions, but refused to produce the Officers for deposition under any conditions. 18 Tron Decl., 13.Inasmuch as none of the statements provided in the reports were made under oath, it wasplaintiffs’ position that there is truly no question that has been adequately addressed in the investigativematerials . . . . Accordingly, because the City of Oxnard refused to produce the Officers for theirdepositions, plaintiffs were forced to proceed with preparing and filing the instant Motion to Compel thedepositions.III.THE OFFICERS’ DEPOSITIONS WHICH ARE THE SUBJECT OF THIS MOTIONWERE PROPERLY NOTICEDOn January 17, 2007, plaintiffs’ counsel served the Notices setting the depositions of OfficersBrisslinger and Polo. See Deposition Notices, Exhibits 1 and 2 to the Hiepler Decl., 8. Thedepositions were scheduled for February 26, 2007. Id.Plaintiffs herein seek to compel the depositions to go forward. Plaintiff is not seeking theproduction of the documents that were sought in the deposition notices.No Objection to either Notice of Deposition was ever served by defense counsel on behalf ofdefendant City of Oxnard. Hiepler Decl., 9.2526272815 See March 8, 2007 letter, Exhibit 12 to the Tron Decl., 11.16 Id.17 See March 13, 2007 letter, Exhibit 13 to the Tron Decl., 12.18 Id..______________________________________________________________________________8Plaintiffs’ Notice Of Motion And Motion To Compel Depositions Of Defendant City Of Oxnard EmployeesOfficer Frank Brisslinger And Officer Martin Polo; Memorandum Of Points And Authorities;Request For $4,618.80 in Sanctions

12345678910111213141516171819202122232425262728IV.PLAINTIFFS’ EFFORTS TO MEET AND CONFER REGARDING THIS DISPUTE HAVEBEEN REJECTED BY DEFENSE COUNSELA motion to compel a party deponent's attendance must be accompanied by a declaration statingfacts showing a reasonable, good-faith attempt at informal resolution of each issue presented. CCP§ 2025.520(b)(2). Plaintiffs have herein satisfied that requirement.Pursuant to Code of Civil Procedure Sections 2016.050 and 2025.450(b)(2), plaintiffs’ counselmade numerous attempts to meet and confer regarding the need for this Motion in an attempt toinformally resolve this discovery dispute. See supra and Tron Decl., 2 - 13.Plaintiffs offered tolimit each deposition to a mere five hours, which would not be burdensome or oppressive to theOfficers. Id. at 5 and Exhibit 12. Plaintiffs further offered to conduct the depositions on a date and ata time of defendant’s choice and a location of defendant’s choice. Id. Unfortunately, each of theseattempts to meet and confer in the spirit of cooperation have all been rebuffed by defense counsel. Id.As a result, plaintiffs were forced to bring the instant Motion to Compel.V.THIS COURT MAY PROPERLY COMPEL THE DEPOSITIONS OFOFFICERS BRISSLINGER AND POLOCalifornia Code of Civil Procedure Section 2025.450 addresses a party’s right to pursue amotion to compel a deposition. Section 2025.450(a) provides as follows:“If, after service of a deposition notice, a party to the action or an officer, director,managing agent, or employee of a party, or a person designated by an organization that isa party under Section 2025.230, without having served a valid objection under Section2025.410, fails to appear for examination, or to proceed with it, or to produce forinspection any document or tangible thing described in the deposition notice, the partygiving the notice may move for an order compelling the deponent's attendance andtestimony, and the production for inspection of any document or tangible thing describedin the deposition notice.”There are several arguments which support plaintiffs’ Motion to Compel and which establish thepropriety of granting the Motion: (1) the Officers have never provided sworn testimony regarding theevents ______________________________________________________________________________giving rise to this action; (2) the Officers must be questioned under oath so that their veracity and9Plaintiffs’ Notice Of Motion And Motion To Compel Depositions Of Defendant City Of Oxnard EmployeesOfficer Frank Brisslinger And Officer Martin Polo; Memorandum Of Points And Authorities;Request For $4,618.80 in Sanctions

12345678910111213141516171819202122232425262728credibility can be assessed and unresolved issues addressed; (3) procedurally, defendant failed to servean objection to the deposition notice; (4) the City of Oxnard’s offer to stipulate to liability simply doesnot obviate the need for the depositions of the Officers involved; (5) public policy and justice requiresthe depositions be compelled; and (6) compelling the Officers testimony now may avoid plaintiffshaving to pursue them individually in a civil action.A. Officers Brisslinger And Polo Have Never Provided Any Statement Under OathRegarding The Events Leading To The Death Of Cindy ConollyAlthough the Oxnard Police Department and the District Attorneys’ Office did conduct an“investigation” into the tragic death of Cindy Conolly, neither inquiry entailed taking a statement ofthese Officers under oath. Thus, these Officers have never provided sworn testimony about theevents at issue in this action.shocking, and warrants granting the instant motion to compel.The fact they have never been questioned under oath is patentlyThe “interviews” conducted internally, by the Officers’ Oxnard Police Department colleaguesand peers, did not fully investigate the facts in this case. Inasmuch as none of the statements provided inthe reports were made under oath, there is truly no question, issue or topic that has been adequatelyaddressed in the investigative materials.B. Plaintiffs Are Entitled To Question These Officers, Under Oath, To Be Able ToAssess Their Demeanor And Credibility To Determine If They Are Telling TheTruth About What Transpired That DayIt is axiomatic that a deposition is a fact-finding process that further allows the examiningattorney the opportunity to assess a witness’s veracity. Through the deposition process, a witness’sdemeanor can be telling, and responses to questions, along with responses to spontaneous follow-upquestions, allow for the assessment of a witness’s credibility and propensity to tell the truth.These Officers have never undergone such questioning in this case. As set forth above, theyhave been interviewed, by their fellow officers, who began by asking for a simple narrative about whathappened. There were no tough questions put to these Officers. Countless issues were left unresolved,issues which cry out for further inquiry.One such issue involves a tape recording made at the scene that fateful day which is missing aportion of the recording. Officer Polo stated that when they returned to the scene of the death, Polo told______________________________________________________________________________10Plaintiffs’ Notice Of Motion And Motion To Compel Depositions Of Defendant City Of Oxnard EmployeesOfficer Frank Brisslinger And Officer Martin Polo; Memorandum Of Points And Authorities;Request For $4,618.80 in Sanctions

12345678910111213141516171819202122232425262728Brisslinger to stay in the Tahoe. See Polo Interview, Exhibit 16 to the Hiepler Decl., 13, p. 106.Officer Polo said that he got a mini-cassette recorder from Brisslinger and began recording. Id. He saidhe did not want to miss anything that was going on. Id. He went to the location of Ms. Conolly, andlearned that she was dead. Id. He then began calling for additional support personnel, such as a TrafficInvestigator, a Chaplain, and other units. Id.Officer Polo stated that he later gave the mini-cassette of his recording to his colleague, SergeantCole. Polo Interview, Exhibit 16 to the Hiepler Decl., 13, p. 106. Officer Jimenez and Officer Penalater listened to the mini-cassette, and stated that “[a]t one point in the recording [of the events recordedby Polo at the scene of the incident] the cassette tape was turned off, then on, then off again.” Id. at 107.When the tape recorder was reactivated, Polo was telling someone, “he didn’t listen,” and the nextphrase was erased. . . . Id. Polo stated that he did not know why this had occurred. Id.There was no further inquiry or investigation into transpired while the tape recorder was off.Plaintiffs would like to know exactly what said in that interim. Moreover, why was the tape recorderturned off? What was being covered up?Plaintiffs submit that only through the deposition process will a thorough examination of theevents giving rise to this action be obtained. Thus, the Motion to Compel must be granted and theseOfficers must be forced to testify, under oath, to the events surrounding Cindy Conolly’s death.C. Defendant City Of Oxnard Failed To Serve Any Objection To The DepositionNotices, Thereby Waiving Any ObjectionsIn the present case, plaintiffs served valid deposition notices, setting the depositions of the twoOfficers, who were an “employee of a party.” See Exhibits 1 and 2. Defendant City of Oxnard failedto serve any objection to either deposition notice under Section 2025.210. Hiepler Decl., 9.Procedurally, they have waived any right to object to the depositions process.D. The City of Oxnard’s Offer To Stipulate To Liability Was Refused, And DoesNot Entitle The City To Avoid Having The Responsible City Employees AppearAnd Testify Under Oath At A DepositionDefendant City of Oxnard contends that because it has offered to stipulate to liability, thedepositions of the Officers are unnecessary. This contention is wholly without merit. As the followingrule poignantly states in Corpus Juris Secundum: “It does not lie in the power of one party to prevent______________________________________________________________________________11Plaintiffs’ Notice Of Motion And Motion To Compel Depositions Of Defendant City Of Oxnard EmployeesOfficer Frank Brisslinger And Officer Martin Polo; Memorandum Of Points And Authorities;Request For $4,618.80 in Sanctions

12345678910111213141516171819202122232425262728the introduction of relevant evidence by admitting the fact which such evidence tends to prove. A partyis not bound to take his adversary's admission.” 64 C.J. sec. 116d. Moreover, American Jurisprudencestates a similar rule:53 Am.Jur. sec. 106.“It does not lie in the power of one party, however, to prevent theintroduction of relevant evidence by admitting in general terms the factwhich such evidence tends to prove. The admission of such evidence is amatter resting in the discretion of the judge presiding at the trial. While heis not bound to receive or to take the time to hear evidence offered inproof of a fact admitted by one's adversary, if, in his discretion he deems itproper to receive such evidence, no exception lies to its admission,assuming that it is relevant and competent under the circumstances.Parties, as a general rule, are entitled to prove the essential facts to presentto the jury a picture of the events relied on. To substitute for such a picturea naked admission might have the effect of robbing the evidence of muchof its fair and legitimate weight. Thus, in a number of criminal cases thedefendant's offer to concede or stipulate certain facts has been held not topreclude the prosecution's rejection of the offer and introduction ofevidence to establish the same facts.”Plaintiffs have not accepted defendant’s offered stipulation, and will not consider agreeingto such stipulation until the depositions of the Officers are taken. The City of Oxnard must not beallowed to hide the true facts relating to wrongful conduct by its Officers by offering to stipulate toliability. If the City is allowed to act in this manner, the injured parties and the public will forever bedenied the right to ever learn the true, sworn facts regarding the nature and circumstances of suchwrongful conduct.E. Justice Requires That The Depositions Of These Officers Directly Involved In CindyConolly’s Death Be Compelled, So The Sworn Truth About This Incident Can BeDisclosed To Plaintiffs, And The Public Can Be Protected From Future HarmIt belies justice that the Oxnard Police Department was allowed to investigate the wrongfulconduct of its own officers. and the wrongful conduct of its Department as a whole for failing toproperly train the officers or to have policies in effect regarding beach driving.Moreover, it belies______________________________________________________________________________12Plaintiffs’ Notice Of Motion And Motion To Compel Depositions Of Defendant City Of Oxnard EmployeesOfficer Frank Brisslinger And Officer Martin Polo; Memorandum Of Points And Authorities;Request For $4,618.80 in Sanctions

12345678910111213141516171819202122232425262728justice that the report prepared by the Oxnard Police Department does not contain a statement providedby either Officer involved under oath, in which they are sworn to tell the truth, but instead contains only“interviews” of the officers. See Exhibit 15 and 16 to the Hiepler Decl., 12, 13.It simply cannot be said that justice has truly been served regarding Cindy Conolly’s death whenthe two people primarily responsible for that death have never been questioned under oath about thosetragic events.The depositions under oath of the two officers have never been taken by plaintiffs’counsel, the Oxnard Police Department, nor any governmental organization. Whether the City ofOxnard admits liability or not, Cindy Conolly’s children must be afforded the opportunity to questionthese Officers and to have them provide sworn answers under oath to tell the truth.In addition, the public will not be protected until the truth about this tragedy is uncovered. Thefacts at issue in this case involve not only the events leading to Ms. Conolly’s death, but also involve theOxnard Police Department’s failure to properly train its officers in how to safely and properly patrol thepublic beaches in police vehicles – in particular, 6,500 pound sport utility vehicles. The public, as wellas plaintiffs, have a right to know the details behind the training – or lack thereof – in order to gain anunderstanding of how future incidents can be prevented. Only then will the public be adequatelyprotected. The Oxnard Police Department must not be allowed to hide the details of this case.On balance, any burden to the Officers by compelling them to provide a few hours of depositiontestimony is far outweighed by plaintiffs’ – and the public’s -- right to the truth, to protect, prevent anddeter such acts in the future. The limited burden imposed on the Officers is far outweighed by thebenefits to the plaintiffs and the public, and plaintiffs are not unreasonable in demanding this discovery.Defendant’s admission of liability does not protect the public on our beaches from future harm.Plaintiffs submit that only by allowing an outside entity to question the Officers, under oath, can theretruly be a change in policy effectuated to protect others from similar harm.F. Plaintiffs, Acting In Good Faith, Elected Not To Initially Name The IndividualOfficers In A Lawsuit, But Instead Chose To Wait Until They Could Confront TheOfficers At Their Depositions; Thus, Compelling The Officers’ Depositions NowMay Avoid Subjecting Them To Individual LiabilityIn the instant civil action for wrongful death, plaintiffs elected not to pursue the two policeofficers individually at the time of filing the complaint. Plaintiffs, acting in good faith, fully expected to______________________________________________________________________________13Plaintiffs’ Notice Of Motion And Motion To Compel Depositions Of Defendant City Of Oxnard EmployeesOfficer Frank Brisslinger And Officer Martin Polo; Memorandum Of Points And Authorities;Request For $4,618.80 in Sanctions

1234567891011121314151617181920212223242526be able to depose the Officers involved in this action. Accordingly, plaintiffs elected not to initiallyname the officers, but instead chose to wait to confront the officers at deposition and discover -- fromtheir own testimony under oath -- facts which support individual liability in this case.Plaintiffs may have a viable claim against the officers individually under Title 42 of the UnitedStates Code Section 1983 (42 U.S.C.A. § 1983) (“§ 1983 Action”), for deprivation of rights under colorof State law. Plaintiffs also may have other tort claims, intentional tort claims, which can be pursued.However, plaintiffs decided to wait for the opportunity to confront the Officers at their depositions, inorder to obtain evidence to support claims against the Officers individually.Plaintiffs could readily have named the individual Officers in this lawsuit, and certainly beentitled to take their depositions. However, in an effort to spare the Officers from such litigation ifindeed there were not sufficient facts to support individual liability, plaintiffs elected to first pursue theOfficers’ depositions in the instant action against the City.Accordingly, if the instant Motion is denied, plaintiffs will have no choice but to pursueindividual liability against Officers Brisslinger and Polo. In a § 1983 action or intentional tort action,the defendant Officers would be subject to punitive damages. Plaintiffs would therefore be entitled todiscover the facts and circumstances of the death, in order to determine if the Officers acted withsufficient malice, oppression or fraud. This could all potentially be avoided if the Officers provide theirdeposition testimony at this time in this action.In sum, any one of the foregoing six arguments support granting the Motion: The Officers havenever provided sworn testimony regarding the events giving rise to this action. The Officers must bequestioned under oath so that their veracity and credibility can be assessed and unresolved issuesaddressed. Defendant City of Oxnard failed to serve an objection to the deposition notice. The City’soffer to stipulate to liability simply does not obviate the need for the depositions of the Officersinvolved. Public policy and justice requires the depositions be compelled. Compelling the Officers’testimony now may avoid plaintiffs having to pursue them individually in a civil action. Accordingly,the Motion should properly be granted and the officers compelled to provide deposition testimony.2728______________________________________________________________________________14Plaintiffs’ Notice Of Motion And Motion To Compel Depositions Of Defendant City Of Oxnard EmployeesOfficer Frank Brisslinger And Officer Martin Polo; Memorandum Of Points And Authorities;Request For $4,618.80 in Sanctions

1234567891011121314151617181920VI.PLAINTIFFS ARE ENTITLED TO SANCTIONSFOR HAVING TO BRING THIS MOTION TO COMPELA court granting a motion to compel must also impose a monetary sanction under CaliforniaCode of Civil Procedure Section 2023.010 against the deponent, or the party with whom he or she isaffiliated, unless the Court finds the party opposing the motion did so with substantial justification. Inthe present case, the City of Oxnard did not have substantial justification for refusing to produce the twoofficers whose conduct was directly responsible for the wrongful death at issue in this action.Accordingly, the imposition of sanctions is appropriate. Plaintiffs herein seek $4,618.80 in sanctionsagainst the City of Oxnard. Hiepler Decl., 18; Tron Decl., 14.VII.CONCLUSIONFor the good of the public – the safety of the public -- the entire truth about this horrific incidentmust be exposed. This Court must not allow public entities, unions, cities, and/or police officers toescape full disclosure via the deposition testimony sought by this Motion. It is well-established publicpolicy of the State of California that litigants be liberally afforded discovery to the end that justice bedispensed fairly and speedily. Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 171-173.“For here we are not afraid to follow truth, wherever it may lead.” Thomas Jefferson’s wise words areespecially applicable to the case at bar. We must learn the truth, the sworn truth, about the tragic deathof Cindy Conolly. Only then will the ends of justice be truly served.2122232425262728DATED: May 7, 2007HIEPLER & HIEPLERA Professional PartnershipBy: __________________________MARK O. HIEPLERTERRY L. TRONAttorneys for Plaintiffs______________________________________________________________________________15Plaintiffs’ Notice Of Motion And Motion To Compel Depositions Of Defendant City Of Oxnard EmployeesOfficer Frank Brisslinger And Officer Martin Polo; Memorandum Of Points And Authorities;Request For $4,618.80 in Sanctions

1234567891011121314151617181920212223STATE OF CALIFORNIA )) ss.COUNTY OF VENTURA )PROOF OF SERVICE1013a(3) C.C.P. Revised 1995I am employed in the County of Ventura, State of California. I am over the age of 18 and not aparty to the within action; my business address is 500 Esplanade Drive, Suite 1550, Oxnard, California93036.On April 9, 2007, I served copies of the following document described as: PLAINTIFFS’NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITIONS OF DEFENDANT CITYOF OXNARD EMPLOYEES OFFICER FRANK BRISSLINGER AND OFFICER MARTINPOLO; MEMORANDUM OF POINTS AND AUTHORITIES; REQUEST FOR $4,618.80 INSANCTIONS upon the interested party(ies) in this action as follows:XXAlan E. Wisotsky, Esq.James S. Eicher, Esq.LAW OFFICES OF ALAN E. WISOTSKY300 Esplanade Drive, Suite 1500Oxnard, CA 93036Telephone: (805) 278-0920Facsimile: (805) 278-0289PERSONAL DELIVERY: By delivering a true copy thereof by hand to the person or office, asindicated, at the address(es) set forth above.I declare under penalty of perjury under the laws of the State of California that the foregoing istrue and correct.Executed on April 9, 2007, at Oxnard, California.___________________________________Shane A. Ishii2425262728______________________________________________________________________________16Plaintiffs’ Notice Of Motion And Motion To Compel Depositions Of Defendant City Of Oxnard EmployeesOfficer Frank Brisslinger And Officer Martin Polo; Memorandum Of Points And Authorities;Request For $4,618.80 in Sanctions