Maldonado et al v. City of San Leandro Police Department et al

Filing 40

ORDER DENYING REQUEST TO APPEAR BY TELEPHONE re 39 Case Management Statement, filed by Nichole Cunningham, Beth Morrison, County of Stanislaus, Richard Allen, Brian Hixon, Erin Cary. Signed by Judge Phyllis J. Hamilton on 1/4/10. (nah, COURT STAFF) (Filed on 1/4/2010)

1 2 3 4 5 6 7 8

DAN FARRAR
Attorney at Law
SBN 155217 P.O. Box 3382 Turlock CA 95381-3382 Telephone [phone] Facsimile [phone]

e-mail: [e-mail] Attorney for Defendants Stanislaus County, Beth Morrison, Erin Cary, Nichole Cunningham, Richard Allen, Bryan Hixson IN THE UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This Case Management Statement is presented on behalf of the Stanislaus County affiliated defendants (Stanislaus County and its employees, Morrison, Cary, Cunningham, Allen and Hixson). By letter dated December 14, 2009, plaintiffs were provided a draft joint statement with a request for their input. Plaintiffs did not respond.ES DI AT
UNIT ED
STRIC TC

Elsa Maldonado, et al, Plaintiffs, vs. City of San Leandro, et al, Defendants.

) ) ) ) ) ) ) ) ) ) ) )

No. C 09-0470 PJH ORDER DENYING D E F E N D A N T S ' CASE M A N A G E M E N T STATEMENT; R E Q U E S T TO APPEAR BY TELEPH O N E Date: January 7, 2010 Time: 2:00 p.m. Courtroom: 3

These defendants request permission to appear at the case management conference by
R NIA
FO

S

T

RT U O

telephone. I. Jurisdiction and Service.

1/4/10

DENIE

D

H hyllis J. Judge P

amilton

According to the allegations of the complaint, jurisdiction exists under 28 USC Section E 1331 and 1343, and Federal Civil Rights Act 42 USC
H
RN

C F D IS T IC T O SectionR1983. Defendants

A

LI

there are Younger v. Harris abstention issues. Venue in this court was proper at the time of filing

NO

RT

believe that

Case Management Statement

1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

under 28 USC Section 1391, based upon the inclusion of defendants residing in the District and allegations of activities that occurred in the District. Those defendants have since been dismissed. All of the remaining defendants reside in the Eastern District. II. Facts. It appears that the plaintiffs' children were removed from the plaintiffs' custody in 2004 by Alameda County authorities. The plaintiffs ultimately moved to Stanislaus County and the child custody "file" was transferred from Alameda County to Stanislaus County. Plaintiffs' parental rights were terminated pursuant to Stanislaus County Superior Court orders entered in September of 2006. Plaintiffs appealed the orders and the Court of Appeal affirmed the trial court. Remittitur was issued July 5, 2007, and the children were placed for adoption. Based upon the allegations of the complaint, it appears that most of the relevant and material facts are in dispute. III. Legal Issues. The primary legal issues raised by the allegations of the complaint are: a. Whether the complaint alleges facts sufficient to state viable causes of action against each and every one of the defendants; b. c. d. Whether the plaintiffs' claims are barred by applicable statutes of limitations; Whether the defendants are immune from liability; and Whether there are issues of collateral estoppel and /or res judicata based upon the state courts' rulings on the child custody issues. IV. Motions. The Stanislaus County affiliated defendants anticipate filing motions for summary judgment/adjudication. V. Amendment of Pleadings. The defendants do not anticipate any amendments to the responsive pleadings. VI. Evidence Preservation. All evidence in the defendants' possession is being preserved. VII. Disclosures.

Case Management Statement

2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 XV. XII. XI. X.

By letter dated May 6, 2009, the Stanislaus County affiliated defendants conferred with the plaintiffs' counsel regarding initial disclosure requirements. Plaintiffs' counsel did not respond to the letter. Defense counsel recently talked with Ms. Maldonado about disclosure and discovery issues but without any agreement. VIII. Discovery. Defendants believe that non-expert discovery should be completed by October 29, 2010; experts should be identified by November 3, 2010, and the expert discovery should be completed 60 days hence. IX. Class Actions. Not applicable. Related Cases. None. Relief. Unknown. Settlement and ADR. By letters dated May 6, 2009, and December 14, 2009, the Stanislaus County affiliated defendants agreed to waive fees and costs in exchange for a dismissal of all claims. Defendants recently asked plaintiffs if they are willing to dismiss the action. Ms. Maldonado said "no." Defendants do not believe that plaintiffs' claims have any merit but are willing to participate in any ADR suggested or ordered by the court. XIII. Consent to Magistrate Judge for All Purposes. All parties do not consent to a magistrate judge. XIV. Other References. The defendants do not believe this case is suitable for reference. Narrowing of Issues. Defendants anticipate that the issues will be narrowed through motions for summary adjudication/judgment. Whether issues can be narrowed by agreement remains to be seen. XVI. Expedited Schedule.

Case Management Statement

3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 XX.

Unknown. XVII. Scheduling. Unknown. XVIII. Trial. Defendants have requested a jury trial. XIX. Disclosure of Non-party Interested Entities or Persons. The defendants are not aware of any non party interested entities or persons. Other Matters.

Dated: December 30, 2009 /s/ Dan Farrar /s/ Dan Farrar Attorney for Stanislaus County Affiliated Defendants

Case Management Statement

4

1 2 3 4 5 6 7 8 9 10 1. 11 12 1. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /s/ Dan Farrar /s/ ___________________________________ Dan Farrar I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed in Turlock, California on December 30, 2009. Rene and Elsa Maldonado 3149 California Avenue Modesto, CA 95358 2. (Personal Service) I caused such envelopes to be delivered by hand this date to the offices of the addressees. (Overnight Delivery) I caused such envelopes to be delivered to an overnight delivery carrier with delivery fees provided for, addressed to the persons on whom it is to be served. (Ordinary Course of Business) by placing each such sealed envelope, with postage thereon fully prepaid for first-class mail, for collection and mailing following ordinary business practices. G On the date set forth below, following ordinary business practice, I served a true copy of the foregoing document described as: Case Management Statement (Facsimile) by transmitting via facsimile the document(s) listed above to the fax number(s) set forth below, or as stated on the attached service list, on this date before 5:00 p.m. PROOF OF SERVICE I am a citizen of the United States. My business address is 2881 Geer Road, Suite A, Turlock, California, 95382 I am employed in the County of Stanislaus, where this service occurs. I am over the age of 18 years, and not a party to the within cause. I am readily familiar with my employer's normal business practice for collection and processing of correspondence for mailing with the U.S. Postal Service, and that practice is that correspondence is deposited with the U.S. Postal Service the same day as the day of collection in the ordinary course of business.

Case Management Statement

5