Fonseca et al v. City of Fresno

Filing 46

ORDER Continuing Hearing on Defendants' 33 35 Motion to Compel signed by Magistrate Judge Dennis L. Beck on 9/23/2011. ( Motion Hearing set for 10/11/2011 at 09:30 AM in Courtroom 9 (DLB) before Magistrate Judge Dennis L. Beck) (Figueroa, O)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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GUADALUPE FONSECA, et al.,

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Plaintiff,
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vs.
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CITY OF FRESNO,
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Defendant.
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____________________________________)

1:10cv0147 LJO DLB
ORDER CONTINUING HEARING
ON DEFENDANTS’ MOTION TO COMPEL
(Documents 33 and 35)
Date: October 11, 2011
Time: 9:30 a.m.
Courtroom 9

On August 25, 2011, Defendants City of Fresno and Officer Mark Wilcox filed this motion to

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compel the deposition of Plaintiff Guadalupe Fonseca (“Mr. Fonseca”). The motion was heard on

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September 23, 2011, before Dennis L. Beck, United States Magistrate Judge. Melanie Partow

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appeared on behalf of Mr. Fonseca. Brande Gustafson appeared on behalf of Defendants City of

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Fresno and Officer Wilcox. Stephen Pass appeared on behalf of Defendant Officer Mike Trenholm.

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BACKGROUND

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Mr. Fonseca, by and through his Guardian Ad Litem Mary Guerrero, and Paula Fonseca, filed

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this civil rights action against the City of Fresno, Fresno Police Officer Mark Wilcox, California

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Highway Patrol Officer Mike Trenholm and Does 3-10, on January 27, 2010. Plaintiffs’ allegations

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arise out of Mr. Fonseca’s arrest on December 12, 2008.

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Plaintiffs filed a First Amended Complaint (“FAC”) on June 22, 2010.

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Pursuant to the September 15, 2010, Scheduling Conference Order, the non-dispositive

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motion filing date is October 14, 2011, and the dispositive motion filing date is October 24, 2011.

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The pretrial conference is set for February 1, 2012 and trial is set for March 19, 2012. On July 20,

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2011, the parties stipulated to extend discovery as follows: non-expert discovery cutoff- October 14,

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2011; exert discovery cutoff- October 28, 2011.

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Defendants City of Fresno and Officer Mark Wilcox (“City Defendants”) filed this motion to

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compel Mr. Fonseca’s deposition1 on August 25, 2011. The parties filed a joint statement on

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September 16, 2011.

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FACTUAL ALLEGATIONS

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According to the FAC, on or about December 12, 2008, Mr. Fonseca, a Latino male of

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majority age who suffers from a mental disability, walked out of his house in Fresno, California, to

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take out the trash. While on duty, Officers Wilcox and Trenholm detained and arrested Mr. Fonseca

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just outside the doorway to his residence for no reason and without probable cause.

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Plaintiff Paula Fonseca, Mr. Fonseca’s mother, observed the incident and told the officers

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that he was mentally disabled and was not a criminal. Officers Wilcox and Trenholm used excessive

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force in the course of unlawfully detaining Mr. Fonseca, including but not limited to forcibly

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grabbing him, slamming him on the ground, punching him and kicking him. He complied with the

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Officers at all times and was not armed.

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Mr. Fonseca was taken into custody with obvious injuries and did not refuse medical aid.

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Officers Wilcox and Trenholm did not immediately report the use of force or seek medical assistance

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for Mr. Fonseca. As a result of the excessive force, Mr. Fonseca remained in a coma for eight days.

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Moreover, Paula Fonseca suffered a heart attack on or about December 12, 2008, while in the

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hospital with him.

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Defendant CHP Officer Trenholm is not a moving party but agrees with all facts and arguments set forth
by the City Defendants.

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Based on these facts, Plaintiffs allege causes of action under the United States Constitution
and California law.

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DISCOVERY AT ISSUE

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City Defendants seek to compel the deposition of Mr. Fonseca over Plaintiffs’ objections that

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he is mentally incompetent to testify. Despite Plaintiffs’ willingness to stipulate that Mr. Fonseca is

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not competent to testify and will not be called as a witness at trial, City Defendants believe that a

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videotaped deposition would be “useful” to an expert in determining whether an Independent

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Medical Examination is necessary.

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However, where there is a threshold issue as to competency, a deposition is not the proper

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method for testing a witness’s competency. Instead, the issue is better addressed by gathering

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sufficient information to make a reasoned competency determination prior to the deposition. To this

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end, the parties have agreed to cooperate in document production to assist in making a competency

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determination before reaching the issue of Mr. Fonseca’s deposition. The parties are also directed to

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discuss extensions of the discovery deadlines that will accommodate this discovery without moving

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the pretrial conference and trial dates.

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ORDER

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Accordingly, the Court CONTINUES this matter to October 11, 2011, at 9:30 a.m., in

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Courtroom 9. The parties shall contact the Court prior to this date if the matter is resolved and a

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hearing is no longer necessary.

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IT IS SO ORDERED.
Dated:
3b142a

September 23, 2011

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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