D. B. v. City of Stockton

1 SANJAY S. SCHMIDT (State Bar No. 247475) LAW OFFICE OF SANJAY S. SCHMIDT 1388 Sutter Street, Suite 810 San Francisco, CA 94109 Telephone: (415) 563-8583 [email protected] T. KENNEDY HELM, IV (State Bar No. 282319) HELM LAW OFFICE, PC 644 40th Street, Suite 305 Oakland, CA 94609 Telephone: (510) 350-7517 [email protected] Attorneys for All Plaintiffs DANA A. SUNTAG, (State Bar No. 125127) JOSHUA J. STEVENS, (State Bar No. 238105) HERUM\CRABTREE\SUNTAG, LLP 5757 Pacific Avenue, Suite 222 Stockton, California 95207 Telephone: (209) 472-7700 [email protected] [email protected] Attorneys for All Defendants UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA D.B., a minor, by and through his guardian Case No.: 2:21-cv-02154-DJC-DB ad litem, Elisa Mulvihill, individually and as co-successor in interest to Decedent ANTWAUNE P. BURRISE, SR., et al, STIPULATION TO MODIFY SCHEDULING ORDER (ECF NO.47) Plaintiffs, AND ORDER 22 vs. CITY OF STOCKTON, et al.

24 Defendants.

STIPULATION TO MODIFY SCHEDULING 1 All parties, through their undersigned counsel of record, and subject to the approval of the Court, stipulate as follows: 3 RECITALS 4 A. When an act must be done within a specified time, the Court may, for good cause, extend the time with or without motion if the court acts, or a request is made, before the original time expires. Fed. R. Civ. P. 6(b)(1)(A). With respect to an order setting forth the Court’s pretrial schedule, “[t]he district court may modify the pretrial schedule ‘if it cannot be reasonably met despite the diligence of the party seeking the amendment.’” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). This is the Parties’ fourth request for extension of time of the Pretrial Scheduling Order; the prior three requests were all granted for good cause. See ECF Nos. 25, 33, and 47).

13 B. Here, the Parties have diligently engaged in fact discovery since filing their Joint Mid-Discovery Statement on August 7, 2023. See ECF No. 45. In September 2023, Defendants conducted the depositions of Plaintiff D.B. and his Guardian Ad Litem, Elissa Mulvihill; Plaintiff Ilia Burrise; and Plaintiff Athena Burrise.

17 C. The Parties had scheduled the depositions of Defendants David Wells, Blake Epperson and John Griffin for August 28–30, 2023; the depositions of percipient officer-witnesses Kevin Weisser and Daniel Villalobos for August 31, 2023; and the depositions of percipient officer-witnesses Joel Chavez and Ryan Taiariol for September 6, 2023. These depositions, however, did not go forward as scheduled because Plaintiffs were awaiting production by Defendants of “FARO” scene- reconstruction data gathered by the California Department of Justice. FARO is a proprietary software used by the DOJ that provides 3D visualizations of shootings.

25 Plaintiffs’ counsel represent they needed to obtain this information before proceeding with these depositions. On September 8, 2023, Defendants’ counsel provided the FARO 27 1 STIPULATION TO MODIFY SCHEDULING data to Plaintiffs’ counsel. Notably, however, during the fall and after receipt of the data, the schedules of Plaintiffs’ counsel were extremely impacted between Labor Day and March, due to obligations in other matters to take and defend depositions, complete fact discovery, complete expert disclosures, oppose and move for summary judgment, attend hearings, file briefs, and handle a panoply of other matters in numerous other cases that are in litigation; one civil-rights wrongful death case alone consumed over 350 hours of the Plaintiffs’ co-counsel, Sanjay Schmidt’s, time between Labor Day and March 18, preparing for and conducting depositions, reviewing thousands of pages of documents, briefing, meeting-and-conferring-about, and litigating discovery disputes, handling expert disclosures, and preparing for and attending a settlement conference, inter alia. Now that the FARO data has been received, and the Parties have had time to make sense of it, the officer depositions may proceed.

13 D. To save attorneys’ fees and costs, Plaintiffs have sought to depose the officers over four or five consecutive days. On March 8, 2024, Plaintiffs proposed that the officer depositions take place during the following dates: 04/10; 04/11; 04/16–04/19; and 04/22–04/26. On April 8, 2024, Defendants’ counsel informed Plaintiffs’ counsel for the first time that, due to a personal issue, Defendant Wells would be unavailable for deposition until at least early May 2024. Because of Defendant Wells’ status, Plaintiffs therefore plan to schedule the depositions of Defendants Wells, Epperson, and Griffin, and Officers Weisser, Villalobos, Chavez, and Taiariol hopefully during June 24–28 or July 1–5, or earlier, if possible, provided that there are dates that work with the schedules of the deponents and counsel.

23 E. The Parties had also scheduled, for September 21–22, 2023, the depositions of Breanna Fuller, Guardian Ad Litem for Minor Plaintiff K.B.; and Plaintiff Stephanie Hatten. Mr. Helm, Plaintiffs’ counsel defending the depositions, became ill with an infection beginning on September 16, 2023, requiring a doctor’s appointment on 27 2 STIPULATION TO MODIFY SCHEDULING September 19, 2023, and a period of recovery, which prevented him from travelling to Stockton for those depositions. Counsel rescheduled these depositions for December 12–13, 2023. Mr. Helm, however, suffered another similar infection, and the Parties agreed to reschedule the depositions for the week of February 5, 2024. On January 29, 2024, Plaintiffs’ counsel informed Defendants’ counsel that the minor Plaintiff K.B. had a medical issue, and the depositions would need to be rescheduled again. On February 2, 2024, the Parties agreed that these depositions would proceed the week of April 8, 2024. On April 8, 2024, defense counsel deposed Breanna Fuller, the guardian ad litem of minor Plaintiff K.B., and on April 9, 2024, defense counsel deposed Plaintiff Stephanie Hatten (Defendants contend that they have not completed Ms. Hatten’s deposition; Plaintiffs disagree and counsel are meeting and conferring on this issue). On April 9, 2024, three days before the depositions of Guardian Ad Litem Tiana Franks and her daughter, minor Plaintiff A.B., Plaintiffs’ counsel provided written notice that they had encountered difficulties in communicating with Ms. Franks, could not confirm that the depositions of Ms. Franks and A.B. would proceed, and so these depositions, set for April 12, 2024, would need to be continued in order to secure the presence of Ms. Franks and A.B. On April 12, 2024, Guardian Ad Litem Tiana Franks and minor Plaintiff A.B. did not appear for their depositions. These depositions will need to be rescheduled.

20 F. Given the foregoing, the Parties have met and conferred regarding the existing Scheduling Order (ECF No. 47), and the Parties believe that the existing dates will not give the Parties sufficient time to finish fact discovery; conduct expert discovery; and prepare for trial. Given the remaining depositions that have to be taken; as well as the desire of counsel for the Parties to be able to exercise professional courtesies by reasonably accommodating the schedules of the deponents and counsel as much as is reasonably possible (Defendants’ counsel will be on pre-paid family vacations in Paris 27 3 STIPULATION TO MODIFY SCHEDULING for the 2024 Olympics from the end of July through the middle of August); and the need to set depositions on mutually available dates, including the anticipated difficulties with doing this (in view of the number of schedules and potential depositions involved); the undersigned counsel reasonably estimate the need for, and, thus, respectfully request, that an additional approximately 150 days be added to the deadline for the cutoff of fact discovery. All successive deadlines in the Scheduling Order would be correspondingly extended, with spacing between such dates to remain the same as in the Scheduling Order.

9 STIPULATION 10 The Parties, by and through their undersigned counsel, respectfully request that the Court modify the Scheduling Order as follows: 12 Current Deadline Current Date (ECF No. 47) Proposed Date Fact Discovery Cutoff May 6, 2024 October 7, 2024 Expert witness disclosures July 3, 2024 December 3, 2024 Rebuttal expert witness August 23, 2024 January 24, 2025 disclosures Expert Discovery Cutoff October 21, 2024 March 24, 2025 Deadline to file all motions November 29, 2024 April 30, 2025 Hearing on dispositive motions January 23, 2025, 1:30 p.m. June 26, 2025, 17 1:30 p.m.

Final Pretrial Conference April 10, 2025 1:30 p.m. September 11, 18 2025, 1:30 p.m.

Jury Trial June 9, 2025 9:00 a.m. November 10, 2025, 9:00 a.m.

21 Based on the foregoing, the parties respectfully request that the Court grant this stipulation for a modification of the Scheduling Order.

23 Respectfully Submitted, Dated: April 24, 2024 HERUM CRABTREE SUNTAG, LLP 25 By: /s/ Joshua J. Stevens* _________________________ JOSHUA J. STEVENS 27 4 STIPULATION TO MODIFY SCHEDULING 1 Attorneys for all Defendants Dated: April 24, 2024 LAW OFFICE OF SANJAY S. SCHMIDT HELM LAW OFFICE, PC By: /s/ T. Kennedy Helm, IV 5 _________________________ T. KENNEDY HELM, IV 6 Attorneys for all Plaintiffs *Pursuant to Local Rule 131(e), counsel has authorized submission of this document on counsel’s behalf.

27 5 STIPULATION TO MODIFY SCHEDULING 1 ORDER 2 The Court, having considered the parties’ stipulation, and good cause appearing, || rules as follows: 4 The Court finds the Parties have shown good cause for the relief their Stipulation || requests.

6 THEREFORE, the relief the Parties request is GRANTED, and the modified || dates are as follows: 8 Current Deadline Current Date (ECF No. Proposed Date Fact Discovery Cutoff May 6, 2024 October 7, 2024 Expert witness disclosures July 3, 2024 December 3, 2024 | Rebuttal expert witness August 23, 2024 January 24, 2025 || disclosures Expert Discovery Cutoff October 21, 2024 March 24, 2025 Deadline to file all motions November 29, 2024 April 30, 2025 | Hearing on dispositive motions | January 23, 2025, 1:30 | June 26, 2025, 1:30 p.m. p.m.

14 | Final Pretrial Conference April 10, 2025 1:30 p.m. | September 11, 2025, 1:30 p.m.

18 | Jury Trial June 9, 2025 9:00 a.m. November 10, 2025, 16 8:30 a.m.

18 IT |S SO ORDERED.

20 || Dated: April 24, 2024 /s/ Daniel J. Calabretta THE HONORABLE DANIEL J. CALABRETTA UNITED STATES DISTRICT JUDGE STIPULATION TO MODIFY SCHEDULING || ORDER AND ORDER