Free Response in Opposition to Motion - District Court of California - California

Case 3:07-cv-02221-BEN-NLS

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HERMEZ MORENO, ESQ., SBN 72009 FRANK PEREZ, ESQ., SBN 205377 RICHARD T. COPELAND, ESQ., SBN 213605 MORENO & PEREZ A Professional Law Corporation 714 West Olympic Blvd., Suite 450 Los Angeles, CA 90015 Tel: (213) 745-6300 Fax:(213) 745-6060

Judy Perez, Esq., SBN 223019 LAW OFFICES OF JUDY PEREZ 7 453 S. Spring Street, Suite 1000 Los Angeles, CA 90013 8 Tel: (213) 622-3330 Fax: (213) 622-3335
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PLAINTIFF'S OBJECTION/OPPOSITION TO DEFENDANT COUNTY OF SAN DIEGO'S EX PARTE TO STAY DISCOVERY

Attorneys for Plaintiff: HENRY KODIMER, by and through his Guardian Ad Litem, LYN RAMSKILL UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA HENRY KODIMER, by and through ) through his guardian ad litem, ) LYN RAMSKILL, ) ) Plaintiff, ) ) v. ) ) ) CITY OF ESCONDIDO, COUNTY ) OF SAN DIEGO, OFFICER WYSE, ) OFFICER UMSTOT, SERGEANT ) DISTEL, AND DOE DEFENDANTS 1) THROUGH 10, INCLUSIVE, ) ) ) ) Defendant(s). ) _______________________________ ) CASE NO.: 07CV2221 BEN (NLS) PLAINTIFF'S OBJECTION/ OPPOSITION TO DEFENDANT COUNTY OF SAN DIEGO'S EX PARTE APPLICATION TO STAY DISCOVERY PENDING RULING ON MOTION TO DISMISS

Case 3:07-cv-02221-BEN-NLS

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TO THE HONORABLE UNITED STATES DISTRICT COURT MAGISTRATE JUDGE NITA L. STORMES: Plaintiff HENRY KODIMER, by and through his guardian ad litem, LYN RAMSKILL, and through his attorneys, Moreno & Perez, hereby objects to/opposes Defendant COUNTY OF SAN DIEGO'S ("County") ex parte application to stay discovery pending the Court's ruling on the County's motion to dismiss as follows: MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION A. Pleading Status This case involves serious injuries sustained by Plaintiff Henry Kodimer, a known

13 schizophrenic, as a result of being wrongfully taken into custody and later jailed and 14 housed with the general jail population in a dormitory setting without being provided 15 access to his psychiatric medication, which proximately resulted in Mr. Kodimer diving 16 from the top of a bunk bed, resulting in quadriplegia. 17

In his Complaint, Plaintiff asserts six causes of action against Defendant County of

18 San Diego and/or its employees/Sheriffs/Sheriffs' deputies: (1) the sixth cause of action 19 for civil rights violations secured under the fourth, fifth, eighth and fourteenth 20 amendments to the United States Constitution under 42 U.S.C. Section 1983 against 21 County employees/agents DOES 6-10; (2) the seventh cause of action for failure to 22 intervene to prevent civil rights violations under 42 U.S.C. Section 1983 against County 23 employees/agents DOES 6-10; (3) the eighth cause of action for failure to train and 24 supervise causing constitutional violations under 42 U.S.C. Section 1983 against 25 Defendant County; (4) the ninth cause of action for Monell liability against Defendant 26 County; (5) the tenth cause of action for Negligence against County employees/agents 27 Defendant DOES 6-10 and Defendant County; and (6) the eleventh cause of action for 28 2
PLAINTIFF'S OBJECTION/OPPOSITION TO DEFENDANT COUNTY OF SAN DIEGO'S EX PARTE TO STAY DISCOVERY

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1 violation of the Americans With Disabilities Act ("ADA") 42 U.S.C. Section 12131 2 against County employees/agents Defendant DOES 6-10 and Defendant County. Causes 3 of action have also been asserted against Defendant City of Escondido and its Defendant 4 Police Officers (collectively hereinafter "Escondido Defendants") for civil rights 5 violations and negligence. The Escondido Defendants filed an Answer to the Complaint 6 on March 6, 2008. 7

On May 7, 2008, Defendant County filed a motion to dismiss various claims/causes

8 of action in the Complaint. Distilled to its essence, the County's motion to dismiss 9 sought the following: (1) to dismiss any allegations under the 42 U.S.C. Section 1983 10 causes of action with respect to Fifth Amendment violations; (2) to dismiss the tenth 11 cause of action for negligence as against the County because: (a) the County claims that it 12 is immune from direct liability on state law claims; and (b) the County claims it cannot be 13 sued for negligent training and supervision; and (3) to dismiss the eleventh cause of 14 action for violation of the ADA against individual county employees only. 15

In response to the motion to dismiss, Plaintiff conceded that: (1) allegations with

16 respect to Fifth Amendment violations should be removed from the complaint, and (2) 17 that the eleventh cause of action for violation of the ADA should be alleged as against the 18 County only and not the County's employees. Plaintiff also conceded that he may not 19 proceed against the County on a negligent hiring/supervision theory, but disputed the 20 County's assertion that Plaintiff may not proceed against it on any negligence theory, 21 citing to California Government Code Section 845.6 and Johnson v. County of Los 22 Angeles (1983) 143 Cal.App.3d 298, in support of his position.

Plaintiff requested leave

23 to file a first amended complaint to make the aforementioned changes to the complaint. 24

The hearing on the motion to dismiss, previously set for July 7, 2008, was ordered

25 "off-calendar" by the Honorable Roger Benitez on July 2, 2008. A ruling on the motion 26 to dismiss is still pending. 27 /// 28 /// 3
PLAINTIFF'S OBJECTION/OPPOSITION TO DEFENDANT COUNTY OF SAN DIEGO'S EX PARTE TO STAY DISCOVERY

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Discovery Status In response to Defendant County's motion to dismiss, and following a joint motion

3 of the parties to continue various disclosure and Rule 26 dates that had previously been 4 scheduled in this case, by Order dated May 19, 2008, this Court set the following dates: 5 6 7 8 9 10

Discovery Stay until July 18, 2008; Rule 26 Conference to be held on or before July 25, 2008; Lodging of Discovery Plan-August 4, 2008; Initial Disclosures-August 8, 2008; and Telephonic Case Management Conference-August 15, 2008 at 10:00 a.m. To date, the parties have complied with the Court's orders and have held the Rule

11 26 Conference and have a draft discovery plan that is ready to be lodged on August 4, 12 2008. Moreover, on July 28, 2008, Plaintiff served requests for production of documents 13 on both the City of Escondido and the County of San Diego. 14

Because a decision has yet to be rendered on the County's motion to dismiss, the

15 County has taken the position that discovery in this matter should be stayed, that it will 16 not be responding to Plaintiff's discovery requests at this time and further, that it will not 17 be making initial disclosures on August 8, 2008. The County contends that it should not 18 be forced to proceed with the litigation at this time because there is not a viable complaint 19 against it, and that therefore it does not know against which claims it will have to defend. 20

For the reasons set forth below, Plaintiff asserts that regardless of the ruling on the

21 motion to dismiss that discovery of this matter should proceed at this time, as the issues 22 facing the County are in fact known. 23 24 25 26 27

II. DISCOVERY IN THIS CASE SHOULD COMMENCE, BECAUSE EVEN WITHOUT THE RULING ON THE MOTION TO DISMISS, THE COUNTY KNOWS THE CLAIMS AGAINST WHICH IT MUST DEFEND In its motion to dismiss, the County is not seeking to extricate itself from this case
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28 in its entirety, but rather, is attempting to narrow small issues that were raised in the

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1 complaint. Assuming, arguendo, that the Court were to grant the County's motion in its 2 entirety, the Complaint would only change in the following respects: (1) Plaintiff would 3 not be allowed to seek redress for violation of his Fifth Amendment Rights under 42 4 U.S.C. Section 1983 (a point which Plaintiff concedes), (2) Plaintiff could only proceed 5 with his Americans With Disabilities Act claim against the County and not county 6 employees (another point Plaintiff concedes), and (3) Plaintiff would not be able to 7 pursue a negligence cause of action against the County and is employees (the only point 8 Plaintiff disputes). Hence, the only real question at this time is whether the County will 9 have to defend a negligence cause of action in addition to the alleged Civil Rights and 10 ADA violations. This small, unresolved issue at this point does not change the factual 11 issues in this case with respect to the incident involving Plaintiff. Moreover, whether 12 Plaintiff is allowed to proceed on a negligence theory would not seem to materially 13 change the County's defense in this case.

There is no significant reason that Defendant

14 County should not participate in discovery at this point and make disclosures of the 15 witnesses and documents relating to the incident involved in this lawsuit. 16

Accordingly, Plaintiff contends that discovery should not be delayed, and

17 respectfully requests that Defendant County's request be denied. 18 19 20 21 22 23 24 25 26 27 28 5
PLAINTIFF'S OBJECTION/OPPOSITION TO DEFENDANT COUNTY OF SAN DIEGO'S EX PARTE TO STAY DISCOVERY

Dated:

August 1, 2008

MORENO & PEREZ A Professional Corporation By: /s/Richard T. Copeland RICHARD T. COPELAND, ESQ. Attorneys for PLAINTIFF E-mail: [email protected]

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Declaration of Service I, the undersigned, declare:

That I am over the age of eighteen years and not a party to the case; I am employed by Moreno & Perez, A Professional Corporation, and my business address is 714 W. 4 Olympic Boulevard, Suite 450, Los Angeles, California 90015. On August 1, 2008, I served the following documents: PLAINTIFF'S OBJECTION/ OPPOSITION TO DEFENDANT COUNTY OF SAN DIEGO'S EX 6 PARTE APPLICATION TO STAY DISCOVERY PENDING RULING ON MOTION TO DISMISS in the following manner:
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By electronic filing, I served each of the above referenced documents by E-filing, in accordance with the rules governing the electronic filing of documents in the United States District Court for the Southern District of California as to the following parties: Michael R. McGuinness, Deputy Escondido City Attorney's Office 201 N. Broadway Escondido, California 92025 (760) 839-4608 (760) 741-7541(fax) E-mail: [email protected] Attorneys for Defendants CITY OF ESCONDIDO, OFFICER WYSE, OFFICER UMSTOT, SERGEANT DISTEL

Ricky R. Sanchez, Senior Deputy County of San Diego County Counsel 1600 Pacific Highway, Room 355 12 San Diego, California 92101 (619) 531-4874 13 (619) 531-6005(fax) E-mail: [email protected]
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Attorneys for Defendant COUNTY OF SAN DIEGO

I declare under penalty of perjury that the foregoing is true and correct. Executed on August 1, 2008 at Los Angeles, California. By: /s/Richard T. Copeland E-mail: [email protected]

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PLAINTIFF'S OBJECTION/OPPOSITION TO DEFENDANT COUNTY OF SAN DIEGO'S EX PARTE TO STAY DISCOVERY