Estate of Linda Miller et al v. County of Sutter et al

Filing 190

ORDER signed by District Judge Daniel J. Calabretta on 02/06/24 GRANTING 187 Ex Parte Application for Order Shortening Time and EXTENDING the dispositive motions filing deadline to 04/29/24; Defendants' 187 -1 proposed Motion to Continue th e dispositive motions filing deadline shall be DEEMED FILED on the same date as the ex parte application was filed. Plaintiffs' opposition, if any, is due 7 days after the service of the Defendants' motion and and there shall be no reply. The Court shall submit the matter without appearance and without oral argument; if the Court subsequently concludes that oral argument is necessary, a hearing will be set, and the parties notified accordingly. (Benson, A.)

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RIVERA HEWITT PAUL LLP
JONATHAN B. PAUL, SBN 215884
WENDY MOTOOKA, SBN 233589
11341 Gold Express Drive, Suite 160
Gold River, California 95670
Telephone: [phone] Fax: [phone]
Email: [e-mail]
[e-mail]
Attorneys for Defendants COUNTY OF NEVADA
and SERGEANT JEANNETTE MULLENAX

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Estate of LINDA MILLER, by and through
Minor H.S., by and through his Guardian ad
Litem RICHARD HYDE, as Administrator;
CHRISTINA HYDE; and Minor Plaintiff H.S.,
by and through his Guardian ad Litem,
RICHARD HYDE,

vs.

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Defendants.

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DEFENDANTS’ EX PARTE
APPLICATION FOR ORDER
SHORTENING TIME ON
DEFENDANTS’ JOINT MOTION TO
CONTINUE THE DISPOSITIVE
MOTIONS FILING DEADLINE

Plaintiffs,

COUNTY OF SUTTER; COUNTY OF
NEVADA, SHERIFF BRANDON BARNES, in
his individual and official capacities; SHERIFF
SHANNAN MOON, in her individual and
official capacities; COMMANDER DAN
BUTTLER, in his individual and official
capacities; LIEUTENANT NORMAN
BIDWELL, in his individual capacity;
SERGEANT KRISTIE M. GARZA, in her
individual capacity; BRENDA FRANKS, in her
individual capacity; MARETTE COOPER, in
her individual capacity; JEANETTE
MULLENAX, in her individual capacity;
WELLPATH; H.I.G. CAPITAL, LLC;
CALIFORNIA FORENSIC MEDICAL
GROUP (AKA Correctional Medical Group
Companies, Inc. and AKA Wellpath);
TAYLOR FIFTHIAN; and DOES 1-20,

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Case No.: 2:20-cv-00577-DJC-DMC

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RIVERA HEWITT PAUL LLP
11341 Gold Express Drive, Suite 160
Gold River, CA 95670
[phone]

EX PARTE APP. FOR OST
Case No. 2:20-cv-00577-DJC-DMC

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I, WENDY MOTOOKA, declare as follows:

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1.

I am a duly licensed attorney admitted to practice before this Court and a member

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of the firm of Rivera Hewitt Paul LLP, attorneys of record for defendants COUNTY OF

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NEVADA and SERGEANT JEANNETTE MULLENAX (“Nevada County defendants”) in this

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action.

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2.

The Nevada County defendants apply ex parte for an order shortening time on

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defendants’ Joint Motion to Extend the Dispositive Motions Filing Deadline from March 29,

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2024 to April 29, 2024. A copy of the proposed motion is attached hereto as Exhibit A.

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3.

I have spoken with counsel for defendants COUNTY OF SUTTER, SHERIFF

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BRANDON BARNES, COMMANDER DAN BUTTLER, LIEUTENANT NORMAN

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BIDWELL and SERGEANT KRISTIE M. GARZA; BRENDA FRANKS, WELLPATH,

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CALIFORNIA FORENSIC MEDICAL GROUP; and ASHLEE MOSELEY (collectively,

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“Defendants”) about this ex parte application and they agree that an order shortening time is

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needed.

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4.

This case is set for settlement conference on March 1, 2024 before the Honorable

Carolyn K. Delaney. Dkt. No. 185.
5.

The dispositive motions filing deadline is March 29, 2024. Dkt. No. 123. Under

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the Court’s Standing Order, the parties must meet and confer on dispositive motions 28 days in

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advance of the dispositive motions filing deadline, which would be March 1, 2024, the same day

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as the settlement conference.

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6.

The parties are currently engaged in expert discovery, with ten expert depositions

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scheduled between February 1, 2024 and February 28, 2024. The parties will also be conducting

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the court-ordered deposition of Minor Plaintiff H.S. on February 7.

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7.

The Court granted a stipulated order extending certain pretrial dates by 30 days at

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Dkt. No. 145. Defendants were under the mistaken impression that because the order continued

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the dispositive motions hearing deadline for 30 days to July 10, 2024, that the dispositive motions

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filing deadline would track with it.

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RIVERA HEWITT PAUL LLP
11341 Gold Express Drive, Suite 160
Gold River, CA 95670
[phone]

8.

The Court’s order continuing the dispositive motions hearing deadline states that

EX PARTE APP. FOR OST
Case No. 2:20-cv-00577-DJC-DMC

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all subsequent motions to modify the scheduling order would require a noticed motion.
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It only recently came to Defendants’ attention, in January 2024, that the

dispositive motions filing deadline did not move with the dispositive motions hearing deadline.
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Because the Court’s prior order directed that all subsequent modifications to the

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scheduling order be done by way of noticed motion, I asked our staff to contact to the Court to

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determine when the Court could hear Defendants’ motion to continue the dispositive motion

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filing deadline. Staff contacted the Court and learned that March 14, 2024 was the earliest

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available date.

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If the dispositive motion filing deadline is March 29, 2024, Defendants must

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engage in substantial preparation of their summary judgment and/or summary adjudication

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motions in February, so that they may meaningfully meet and confer with plaintiffs about the

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motions before March 1, 2024.

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12.

Defendants will also have to engage in this work in February, concurrently with

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preparing for the settlement conference on March 1, 2024, and without the benefit of several

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expert witness deposition transcripts, unless the dispositive motions filing deadline is continued

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to a later date.

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Defendants therefore respectfully seek an order, as soon as feasible, continuing the

dispositive motions filing deadline to April 29, 2024.
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On January 17, 2024, I emailed plaintiffs to explain the scheduling problem and to

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inquire if they would agree to join in Defendants’ motion to extend the dispositive motions filing

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deadline.

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On January 18, 2024, plaintiffs declined to state their position because the parties

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had not yet agreed on a date for Minor Plaintiff H.S.’s court-ordered deposition.

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deposition is unrelated to the dispositive motions filing deadline.

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But the

On January 19, 2024, I emailed plaintiffs again, asking them to indicate by January

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22, 2024 whether they intended to oppose Defendants’ motion and whether they would stipulate

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to the motion being heard on shortened time. Plaintiffs did not respond on January 22.

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RIVERA HEWITT PAUL LLP
11341 Gold Express Drive, Suite 160
Gold River, CA 95670
[phone]

17.

On January 24, 2025, Defendants conferred and agreed that they should not further

EX PARTE APP. FOR OST
Case No. 2:20-cv-00577-DJC-DMC

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delay this time-sensitive motion. I wrote to plaintiffs later that day, informing plaintiffs that

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Defendants intended to move to extend the dispositive motions filing deadline within the week

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and that Defendants would construe plaintiffs’ silence as plaintiffs’ intention to oppose

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defendants’ motion and refusal to stipulate to the motion’s being heard on shortened time.

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The following day, plaintiffs wrote back to say that they would provide their

response the next day.
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On January 25, 2024, plaintiffs informed Defendants that “in principle” they did

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not oppose moving the dispositive motions filing deadline, but then plaintiffs proposed much

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more significant modifications to the Scheduling Order, including an extended briefing schedule.

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Plaintiffs’ proposed modifications would reset the dispositive motions hearing date for August 8,

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2024, the same date that the parties’ Joint Pretrial Statement would be due. Plaintiffs still did not

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indicate if they would oppose defendants’ motion to extend the dispositive motions filing date,

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nor did they state whether plaintiffs would stipulate to have the motion heard on shortened time.

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On January 29, 2024, I wrote to plaintiffs again, informing them that Defendants

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intended to file their motion on shortened time solely to continue the dispositive motions filing

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deadline and asked plaintiffs to state whether they would oppose the motion and whether they

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would stipulate to have it heard on shortened time. I requested that plaintiffs respond by close of

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business the following day.

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As of the time of the filing this declaration, Plaintiffs have not yet responded to my

January 29, 2024 email.
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As described above, Defendants have attempted to obtain a stipulation from

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plaintiffs to have Defendants’ motion heard on shortened time, but Plaintiffs have refused to

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respond to this inquiry. Defendants construe Plaintiffs’ silence to mean that they will oppose

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Defendants’ motion and that they will not stipulate to its being heard on shortened time.

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Defendants therefore hereby apply ex parte for an order shortening time to hear

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Defendants’ motion to continue the dispositive motions filing deadline, and respectfully request

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that the motion be heard by February 9, 2024, if feasible.

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continuance of any other case management deadlines.

RIVERA HEWITT PAUL LLP
11341 Gold Express Drive, Suite 160
Gold River, CA 95670
[phone]

EX PARTE APP. FOR OST
Case No. 2:20-cv-00577-DJC-DMC

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Defendants do not request a

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I have personal knowledge of the matters referenced above and, if called upon,

could competently testify thereto.
I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.
Executed on January 31, 2024, at Gold River, California.

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/s/ Wendy Motooka
WENDY MOTOOKA

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RIVERA HEWITT PAUL LLP
11341 Gold Express Drive, Suite 160
Gold River, CA 95670
[phone]

EX PARTE APP. FOR OST
Case No. 2:20-cv-00577-DJC-DMC

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ORDER

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Having reviewed the ex parte application of defendants and good cause appearing,

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defendants’ ex parte application for an order shortening time on defendants’ motion to continue

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the dispositive motions filing deadline from March 29, 2024 to April 29, 2024 is GRANTED.

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The Court further ORDERS:

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1.

Defendants’ proposed motion to continue the dispositive motions filing deadline,

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served and filed with the ex parte application, shall be deemed filed on the same date as the ex

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parte application was filed;

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2.

Plaintiffs’ opposition, if any, shall be filed seven (7) days after service of

Defendants’ motion;

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3.

There shall be no reply; and

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4.

The Court shall submit the matter without appearance and without oral argument

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pursuant to Local Rule 230(g). If the Court subsequently concludes that oral argument is

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necessary, a hearing will be set, and the parties notified accordingly.

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IT IS SO ORDERED.

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Dated: February 6, 2024

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/s/ Daniel J. Calabretta
THE HONORABLE DANIEL J. CALABRETTA
UNITED STATES DISTRICT JUDGE

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RIVERA HEWITT PAUL LLP
11341 Gold Express Drive, Suite 160
Gold River, CA 95670
[phone]

EX PARTE APP. FOR OST
Case No. 2:20-cv-00577-DJC-DMC

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