Novak v. Merced Police Department, et al.

Filing 51

STIPULATED Agreement to Extend Scheduling Order; Summary Judgment Motion of Defendants, Mentor Network, Loyds Liberty Homes, Trigg and Brewer; and ORDER thereon. Non-Expert Discovery Cut-off for the deposition of Rasmussen ONLY March 31, 2016; Pr e-trial/MSJ Filing Deadline May 6, 2016; PRETRIAL CONFERENCE is continued from 1/27/2016 to August 1, 2016 at 08:30 AM in Courtroom 8 (BAM) before Magistrate Judge Barbara A. McAuliffe; JURY TRIAL is continued from 3/ 29/2016 to September 13, 2016 at AM in Courtroom 8 (BAM) before Magistrate Judge Barbara A. McAuliffe. The motion for summary judgment currently pending (Doc. 47) is DENIED without prejudice based upon the continuance. signed by Magistrate Judge Barbara A. McAuliffe on 12/15/2015. (Herman, H)

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Timothy V. Magill, Esq., 082398
MAGILL LAW OFFICES
3475 W. Shaw Avenue, Suite 106
Fresno, California 93711
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorney for Plaintiff,
NANCY JUNE NOVAK

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA, FRESNO DIVISION

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Case No.: 1:13-CV-01402-BAM

NANCY JUNE NOVAK,

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Action Filed: Aug. 30, 2013
Plaintiff,
vs.
CITY OF MERCED, A MUNICIPAL
CORPORATION, MERCED POLICE
OFFICER RASMUSSEN (#161),
INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY AS A POLICE
OFFICER FOR THE CITY OF MERCED,
SGT. STRUBLE (ID #UNKNOWN),
INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY AS A POLICE
SERGEANT FOR THE CITY OF
MERCED, OFFICER CHAVEZ (#156),
INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY AS A POLICY
OFFICER FOR THE CITY OF MERCED,
THE MENTOR NETWORK, LOYD’S
LIBERTY HOMES, INC., A
MASSATUCHETS CORPORATION
DOING BUSINESS IN CALIFORNIA,
CHRISTINA TRIGG, AN INDIVIDUAL,
JOELLA BREWER, AN INDIVIDUAL,
CARE MERIDIAN CORPORATION,
AND DOES 1-50, inclusive,

STIPULATED AGREEMENT TO
EXTEND SCHEDULING ORDER;
SUMMARY JUDGMENT MOTION
OF DEFENDANTS, MENTOR
NETWORK, LOYD’S LIBERTY
HOMES, TRIGG AND BREWER; AND
ORDER THEREON

Defendants.

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STIPULATED AGREEMENT TO EXTEND SCHEDULING ORDER

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Plaintiff, NANCY JUNE NOVAK, by and through her attorney of record,

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Timothy V. Magill, Esq. of Magill Law Offices in Fresno, California, and Defendants,

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THE MENTOR NETWORK, LOYD’S LIBERTY HOMES, CHRISTINA TRIGG, and

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JOELLA BREWER, by and through their attorney for record, Douglas C. Smith, Esq. of

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Riverside, California, and Defendants, MERCED POLICE DEPARTMENT, OFFICER

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RASMUSSEN, SGT. STRUBLE, and OFFICER CHAVEZ, by and through their

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attorney of record, Dale Long Allen, Jr., Esq. of San Francisco, California, hereby

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Stipulate and agree to continue the current Motion for Summary Judgment, filed by

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Defendants Mentor Network, et al., and extend the Briefing Schedule filed May 12, 2015,

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as listed below:

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Continued Motion for Summary Judgment –with applicable deadlines, March 10, 2016.

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Old

New

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Non-Expert Discovery Cut-off

September 29, 2015 March 31, 2016

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Expert Discovery Cut-off

October 16, 2015

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Pre-trial/MSJ Filing Deadline

November 2, 2015 May 6, 2016

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Pre-trial Conference

January 27, 2016

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August 10, 2016 at
8:30 a.m.

Jury Trial

March 29, 2016

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April 15, 2016

September 12, 2016 at
8:30 a.m.

The reasons why counsel are stipulating to an extension of said Scheduling Order

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and also Defendants’ Summary Judgment Motion, are:

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1. Medical

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On Sunday, November 8, 2015, Mr. Magill, attorney for Plaintiff in this matter,

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suffered a heart attack. Mr. Magill underwent surgery and had two stents inserted into

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the arteries leading to his heart. Mr. Magill’s surgeon told him that he absolutely could

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not work for over a week, and prescribed him several medications.

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Counsel for Defendants were made aware of the medical condition of Mr. Magill

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STIPULATED AGREEMENT TO EXTEND SCHEDULING ORDER

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on Monday, November 9, 2015.
Initially, it was requested that a short continuance / extension of time to respond to

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the Motion for Summary Judgment be agreed to. Based on personal experience of

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Defendants’ counsel, it was agreed that more time than a week or two would be more

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probable for Mr. Magill to continue representation of Plaintiff and respond to the MSJ.

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During the week of November 16, 2015 Mr. Magill was to have prepared the

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Stipulation / Agreement and circulate the document for signatures. However, due to

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medication issues and other issues related to the heart attack and aftermath of that event,

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Mr. Magill was not capable of preparing the Stipulation / Agreement.

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2. Discovery

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a. Depositions

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Plaintiff has been trying to depose Officer Rasmussen, but the Officer has had

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medical issues of his own, and has been off-work and on medication that has made it

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impossible for him to be deposed. Officer Rasmussen suffered a gunshot wound to his

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hand. Until recently, it has been unknown as to when Officer Rasmussen may be

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available for deposition. Plaintiff had also set the deposition for the doctor of Loyd’s

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Home, et al., and others for September 28, 2015. This was Todd Marion, Maira Carranza

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and Dr. Charles Cano. The depositions were to be taken in Fresno and in Merced, since

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the parties would go to Dr. Cano’s office in Merced. Those depositions were unable to

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go forward, as the parties were unable to confirm the date. Additionally, prior to that

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date, on or about September 22, 2015, depositions were set of various witnesses,

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including one that Plaintiff wishes to take, namely Joanne Bolton. There are additional

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persons who have been recently disclosed by the Mentor Network Defendants, namely

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Kali Murry and Gwen Hewitt for Loyd’s Liberty Homes whose deposition needs to be

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taken. The deposition of Plaintiff’s experts, Jack Smith, Rick Sarkisian and Aaron

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Pankratz were previously scheduled and cancelled in the month of October 2015. The

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deposition of Dr. Manual, who is the Director of the Maria Green facility where Plaintiff

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STIPULATED AGREEMENT TO EXTEND SCHEDULING ORDER

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was employed, will still need to be scheduled, as well as the rescheduling of Rita

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Townsend and others who treated Ms. Novak - Dr. Djevalikian, Barbara T. Mooreland,

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Deborah Ohanisian, Matthew D. House, Dwight Severt, Christine George, Tony Reid,

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and Karen Sogovia – also, Gary Comer, which were all set for October 7-9, 2015. These

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all conflicted with a previously scheduled trial entitled, Jordan v. State of California, et

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al., venued in the San Luis Obispo County Courthouse. This was a four (4)-week

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scheduled trial that commenced on October 13, 2015. Additionally, Plaintiff’s counsel

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had to be in San Luis Obispo during the week of September 28, 2015 and October 5,

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2015 to prepare for the case.

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b. Written Discovery

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There are discovery responses and discovery requests that have not been

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completed as of this date.
Mr. Magill has been in a four (4)-week trial in San Luis Obispo. Between trial

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preparation and last minute arguments, travel, and all of the issues of an out-of-town trial,

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Mr. Magill has been intimately involved with that particular case for over a two (2)-

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month period. The trial ended and a verdict came in the day after Mr. Magill’s heart

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attack. He was unable to be at the San Luis Obispo County Courthouse for the verdict, as

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he was in the hospital.

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3. Health Issues

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Mr. Magill is trying to continue to improve his health and well-being. He is

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submitting to the orders of his physician as far as physical movement and other dictates.

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He is still weak and tires easily. Mr. Magill has not been able to work in his office for

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more than two (2) to three (3) days a week for no more than three (3) to four (4) hours.

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This includes phone calls, meeting with clients, potential clients, and / or working on

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pleadings or other documents. He has not regained his strength and / or vitality as of yet.

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Presently, Mr. Magill has commenced cardiac physical therapy beginning the

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week of December 7, 2015. It is unknown at this time how long the cardiac physical

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STIPULATED AGREEMENT TO EXTEND SCHEDULING ORDER

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therapy will last at the hospital.
///

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4. Other Continuance / Extensions
All parties agree that this matter should not be continued or the Scheduling Order

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be extended again, without good cause. In that vein, and in an abundance of caution,

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counsel have agreed to the proposed schedule above to avoid another continuance /

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extension of matters, if possible.

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DATED: December 11, 2015.

MAGILL LAW OFFICES

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By:

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DATED: December 11, 2015.

/s/ Timothy V. Magill
Timothy V. Magill, Esq.
Attorney for Plaintiff,
NANCY JUNE NOVAK

SMITH LAW OFFICES

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By:

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/s/ Douglas C. Smith
Douglas Charles Smith, Esq.
Attorney for Defendants,
THE MENTOR NEWTWORK,
LOYD’S LIBERTY HOMES,
CHRISTINA TRIGG
and JOELLA BREWER

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DATED: December 11, 2015.

ALLEN, GLAESSNER, HAZELWOOD,
WERTH

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By:

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/s/ Dale L. Allen, Jr.
Dale Long Allen, Jr., Esq.
Attorney for Defendants,
MERCED POLICE DEPARTMENT,

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STIPULATED AGREEMENT TO EXTEND SCHEDULING ORDER

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OFFICER RASMUSSEN, SGT.
STRUBLE, and OFFICER CHAVEZ

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ORDER

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Having considered the parties’ stipulation, the Court finds good cause for partial

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modification of the scheduling conference order and shall grant the requested relief as noted

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below. The request to extend the deadlines for Non-Expert Discovery Cut-off and Expert Cut-

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off is DENIED for lack of good cause. Failure to timely set and complete discovery before the

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relevant deadline is not good cause. The Court will accommodate Mr. Magill’s health issues, but

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those issues began after the non-expert and expert cut-off dates expired. Accordingly, IT IS

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HEREBY ORDERED that the following schedule shall be adopted:

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Original Deadline

New Deadline

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Non-Expert Discovery Cut-off for the deposition of
Rasmussen ONLY

March 31, 2016

Pre-trial/MSJ Filing Deadline

November 2, 2015

May 6, 2016

Pre-trial Conference

January 27, 2016

August 1, 2016 at

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8:30 a.m.
Jury Trial

March 29, 2016

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September 13, 2016
at 8:30 a.m.

The motion for summary judgment currently pending (Doc. 47) is DENIED
without prejudice based upon the continuance. In light of the schedule and Mr. Magill’s
health, should the parties desire the Court to set a settlement conference, the parties
should contact Courtroom Deputy Harriet Herman at 559-499-5788.
IT IS SO ORDERED.
Dated:

/s/ Barbara

December 15, 2015

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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STIPULATED AGREEMENT TO EXTEND SCHEDULING ORDER

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