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SOLOMON E. GRESEN [SBN: 164783] STEVEN V. RHEUBAN [SBN: 48538] LAW OFFICES OF RHEUBAN & GRESEN 15910 VENTURA BOULEVARD, SUITE 1610 ENCINO, CALIFORNIA 91436
TELEPHONE: (818) 815-2727 FACSIMILE: (818) 815-2737

(SPACE BELOW FOR FILING STAMP ONLY)

Attorneys for Plaintiffs

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES, CENTRAL DISTRICT

OMAR RODRIGUEZ; CINDY GUILLENGOMEZ; STEVE KARAGIOSIAN; ELFEGO RODRIGUEZ; AND JAMAL CHILDS, Plaintiffs,

CASE NO.: BC 414 602

14 -vs15 16 17 Defendants. 18 19 20 Cross-Complainants, 21 _vs22 OMAR RODRIGUEZ, and Individual, 23 Cross- Defendant 24 BURBANK POLICE DEPARTMENT; CITY OF BURBANK, BURBANK POLICE DEPARTMENT; CITY OF BURBANK; AND DOES 1 THROUGH 100, INCLUSIVE.

PLAINTIFF ELFEGO RODRIGUEZ'S NOTICE OF MOTION AND MOTION FOR RECONSIDERATION OF THE RULING ON DISCOVERY REFEREE FEES IN HIS MOTION TO TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATION OF INDIA S. THOMPSON IN SUPPORT THEREOF

Assigned to: Hon. Joanne B. O'Donnell, Judge Dept. 37 Complaint Filed: May 28, 2009 Trial Date: 04/13/2011 Date: February 17, 2010 Time: 9:00 a.m. Dept. 37

25 I TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: 26 27 28 PLEASE TAKE NOTICE that on February 17, 2010 at 9:00 a.m. in Department 37 of the above captioned court located at 111 North Hill Street, Los Angeles, California, Plaintiff Elfego

Rodriguez ("Plaintiff') will move, and hereby does move the Court to reconsider that portion of its 1 Plaintiff Elfego Rodriguez's Motion for Reconsideration of Ruling on His Motion to Tax Costs

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order which allocates Plaintiffs' fifty percent (50%) pro rate share of the cost of the discovery referee equally among the remaining plaintiffs. This motion is brought pursuant to Code of Civil Procedure Section 1008, and is based upon the discovery of new facts and circumstances which were not known to the Court or to counsel

during the hearing. Those facts support Plaintiff's assertion that he should not be held responsible for twenty-five percent (25%) of Plaintiffs' fifty percent (50%) pro rata share because those costs

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were incurred primarily in the prosecution of claims and issues that relate exclusively to remaining Plaintiffs Steve Karagiosian, Omar Rodriguez and Cindy Guillen-Gomez. This motion is based upon this motion, the attached Memorandum of Points and Authorities, the supporting declaration of India Thompson, the Reporter's Transcript of the November 10, 2010 hearing on the Motion to Tax Costs, the Court's tentative ruling (adopted as its order) on the Motion to Tax Costs, the Court's tentative ruling (adopted as its order) for the appointment of a discovery referee, all previous pleadings filed with the Court, (especially those pleadings which relate to Elfego Rodriguez's Motion to Tax Costs and the pleadings which relate to the Court's decision that the appointment of a discovery referee was necessary), and such further evidence and argument as the Court may allow.

Dated: November 17, 2010

LAW OFFICES OF RHEUBAN & GRESEN

India S. Thompson, Attorneys for Plaintiffs 21 22 23 24 25 26 27 28


2 Plaintiff Elfego Rodriguez's Motion for Reconsideration of Ruling on His Motion to Tax Costs

MEMORANDUM OF POINTS AND AUTHORITIES 2 On November 10, 2010, the Court heard Plaintiff Elfego Rodriguez's Motion to Tax Costs ("the Motion"). The Motion was brought following the Court's grant of summary judgment against
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him. At this time, Plaintiff Elfego Rodriguez ("Plaintiff") asks for reconsideration of that portion of the Court's ruling which addresses the allocation of discovery referee fees. Plaintiff does not assert that the Court does not have discretion to assign the cost of the discovery referee to non-prevailing parties. However, he does and did challenge the Court's allocation of the discovery referee costs among the plaintiffs solely on a pro rata basis. Unfortunately, the Court's ruling on November 10, 2010 was based on an inadvertent misstatement of fact, asserted sua sponte by the Court during the course of the hearing. Specifically, the Court justified an equal apportionment of discovery fees among the Plaintiffs on its belief that it was Plaintiffs who requested the appointment of a discovery referee. Plaintiff did not learn until after the hearing that Plaintiffs made no such request, and in fact, argued vigorously against the appointment of a discovery referee.. A. Summary of Facts. 1. The November 10, 2010 hearing on the Motion to Tax Costs. On May 19, 2010, the Court heard Defendant City of Burbank's ("Defendant") motion for

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18 summary judgment against Elfego Rodriguez and ruled in Defendant's favor, and Defendant 19 promptly filed a Memorandum of Costs after the order and judgment were entered. Plaintiff timely 20 filed his Motion to Tax Costs.' The Motion was heard on November 10, 2010 following the 21 22 23 Court's consideration and analysis of the original Memorandum of Costs, the Defendant's Opposition, and Plaintiffs Reply Brief. Prior to hearing the Motion, the parties were provided a copy of the Court's Tentative Ruling, a copy of which is attached as Exhibit B. See Declaration of

24 India S. Thompson ("Thompson Decl."), 6, lines 24-25 at page 9. 25 'Prior to the hearing pertaining to Plaintiffs Motion to Tax Costs, the court heard Jamal Childs' Motion to Tax Costs. Based upon the Court's ruling on that motion, Defendant amended its 27 Memorandum of Costs. Some time later, Plaintiff filed an Amended Motion to Tax Costs. The Court later refused to consider either the Amended Memorandum of Costs or the Amended Motion to Tax 28 Costs because both were untimely. Declaration of India S. Thompson ("Thompson Decl."), 6, lines 27-28 at page 9; Exhibit B at page 1. However, Plaintiffs Reply Brief, filed five court days prior to the hearing was timely, and presumably, it was considered. 3 Plaintiff Elfego Rodriguez's Motion for Reconsideration of Ruling on His Motion to Tax Costs 26

Plaintiff was represented by India Thompson, an attorney with Rheuban & Gresen, attorneys
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of record for all plaintiffs. Thompson Decl., 1, lines 3-6, at page 9. The Court's Tentative Ruling granted Defendant's request for 25% of their discovery referee costs, based solely upon an equal apportionment of costs among the remaining plaintiffs. Exhibit B. At oral argument, Plaintiff's counsel, Ms. Thompson, objected to the apportionment of discovery referee fees among the plaintiffs on a pro rata basis. She noted that the objection was raised in the original Motion, "there is no showing by Defendant that any of the fees of the Discovery Referee relate in any way to the case of Elfego Rodriguez." Motion at page 8, lines 8-9. Ms. Thompson then quoted from the controlling case on this issue, Nelson v. Anderson (1999) 72 Cal.App.4th 111 2
:

" ... an across-the-board reduction based upon the number of plaintiffs, without regard to the reason the costs were incurred, is not a determination of the necessity or reasonableness of the costs.... there was no attempt here to distinguish between costs incurred as a result of the actions or tactics of one plaintiff as opposed to another. " Nelson v. Anderson at 130. Nevertheless, the Court ruled, "Plaintiffs objection to defendant's request for a share of the discovery referee's fees and the manner in which the defendant apportions this fee among the plaintiffs is not well taken. ... Defendant divided the discovery referee's fee equally among the five plaintiffs for costs incurred by them on April 13, 2010 and then among all four remaining plaintiffs after April 13, 2010. This apportionment is reasonable and fair." Exhibit B at page 2 (Item 13). In support of its decision to apportion the discovery referee costs in this manner, the Court stated that because Plaintiffs initiated the request for a discovery referee, it may be presumed that each plaintiff agreed to share equally in the cost. Reporter's Transcript at page , lines 2. Motion and hearing on Appointment of Discovery Referee. However, the decision to appoint a discovery referee was made October 2, 2009, well over a year ago. As the Court's Tentative Ruling expressly acknowledges, the motion for appointment of a discovery referee was brought by Defendant, not Plaintiff. Thompson Decl., 7, lines 26-28 at page 9; Exhibit C at page 1. In its tentative (later adopted as the final ruling), the Court stated: //

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'This case was also cited in Plaintiffs Reply Brief, filed five court days prior to the hearing. 4 Plaintiff Elfego Rodriguez's Motion for Reconsideration of Ruling on His Motion to Tax Costs

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"The court finds that appointment of a discovery referee is necessary to hear and determine all discovery disputes, based on the Michaels [counsel for Defendant] declaration, which recites the "exceptional circumstances that require the reference .... and which Plaintiff does not refute." Exhibit C at page 2. Although the Court concluded that each side was to bear a pro rata share of the costs., i.e., 50% and 50%, the Court did not discuss the manner in which the costs should be apportioned among the individual plaintiffs. The Court also acknowledged that Plaintiff vigorously opposed the motion for the appointment of the discovery referee and noted, "Because both parties presented colorable arguments for their positions, imposition of sanctions against plaintiffs would be unjust." Id.

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3. Recently Discovered Facts and Changed Circumstances.


Neither of the attorneys representing Plaintiff and Defendant were present at that October 2, 2009 hearing concerning the discovery referee and had no personal knowledge of the identity of the moving party or the Court's reasoning. The Court, however, did have personal knowledge and represented that the moving parties were Plaintiffs. Plaintiff reasonably accepted as fact the Court's representation that Plaintiffs requested appointment of the discovery referee. It was not until Plaintiffs attorney returned to her office following the hearing that she learned that the Court had been mistaken.

B. Argument. 1. Circumstances Warrant Reconsideration of the Motion to Tax Costs.


Code of Civil Procedure Section 1008 provides in pertinent part: "(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown." Plaintiff files this Motion for Reconsideration within the 10 day period following the court's ruling on the Motion to Tax Costs. It requests modification of that portion of the Court's ruling that pertains to discovery referee fees (Item 13 on Defendant's Memorandum of Costs). The basis for this Motion is Plaintiff's discovery that a material "fact" raised sua sponte during the course of the

Plaintiff Elfego Rodriguez's Motion for Reconsideration of Ruling on His Motion to Tax Costs

hearing on the motion was not true. That fact was the Court's sole justification for deviation from 2 3 the holding set forth in Nelson v. Anderson, supra. Upon learning the true facts, Plaintiff filed this motion for reconsideration. 2. IP'la.intiffs ID id Viet Request Appointment of a 1Diseovenry Referee; and Therefore 5 6 7 Voluntary Agreement to Share Equally in Reference Costs Can Be Imputed to Him. At the November 10, 2010 hearing on the Motion to Tax Costs, the Court acknowledged
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8 that under most circumstances in which there are multiple non-prevailing parties, it would have 9 been compelled to adhere to the provisions of Nelson v. Anderson, supra, which require an analysis 10 11 12 13 14 15 16 17 18 of whether such costs actually relate to claims or defenses of the particular party to be charged. However, in this instance, the Court mistakenly believed that Plaintiffs initially requested appointment of the discovery referee. Based on the Court's belief that all five Plaintiffs wanted a discovery referee, it therefore follows that they voluntarily placed themselves in the position of having to share equally in the those costs as they applied to Plaintiffs' pro rata share. In reality, the circumstances of the appointment of the discovery referee were quite different from the circumstances upon which the Court based its decision. None of the plaintiffs ever requested a discovery referee. In fact, the plaintiffs vigorously opposed the appointment of the discovery referee. Thus, Plaintiff never assumed financial

19 responsibility for reference of matters which had nothing to do with his claims and the Nelson v. 20 21 22 23 24 25

Anderson, supra, holding applies. As demonstrated in the Reply Brief, with the exception of the
original discovery motions which preceded the appointment of a discovery referee, nearly all subsequent discovery activities are as follows: Judge Wayne's personal supervision of Omar Rodriguez's deposition, analysis of privileged documents pertaining to Omar Rodriguez, and analysis of issues pertaining to Steve Karagiosian's laptop computer. Plaintiff should not be held responsible for twenty-five percent (25%) of these discovery reference fees. Moreover, Defendant

26 has presented no evidence whatsoever to demonstrate that a 25% apportionment is fair to Plaintiff 27 28 // //

6 Plaintiff Elfego Rodriguez's Motion for Reconsideration of Ruling on His Motion to Tax Costs

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3. The Court Always Has Discretion to Correct Its Own Mistakes. The Court has discretion to correct its own mistake. In Le Francois v. (Joel (2005) 35 Cal.4th 1094, the California Supreme Court concluded that a trial court had the authority to reconsider sua sponte an earlier ruling on a motion for summary judgment, though the moving, paaicy may not have asserted any new issues or newly discovered facts or law that would support the filing of a second or renewed motion. "We hold that Code of Civil Procedure sections 437c and 1008 limit the parties' ability to file repetitive motions but do not limit the court's ability, on its own motion, to reconsider

its prior interim orders so it may correct its own errors.... We agree that it should not
matter whether the `judge has an unprovoked flash of understanding in the middle of the night' [citation] or acts in response to a party's suggestion. If a court believes one of its prior interim orders was erroneous, it should be able to correct that error no matter how it came to acquire that belief." Id. at 1107-1108. Conclusion. As noted in the Thompson Declaration and as discussed above, there was no way that Plaintiff could have reasonably anticipated the court's reliance upon an event which occurred over a year ago, and was never raised in either the moving or opposition papers, including those amended pleadings which were ultimately not considered by the Court. Therefore, Plaintiff reasonably accepted the representations of the only entity in the courtroom with personal knowledge of the proceedings of October 2, 2009. Plaintiff did not learn the true facts until his attorney returned to the Rheuban & Gresen offices and learned that Defendant, not Plaintiffs, requested the discovery referee. // // /1/ // //

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7 Plaintiff Elfego Rodriguez's Motion for Reconsideration of Ruling on His Motion to Tax Costs

These are facts and circumstances that, in all fairness, warrant reconsideration of that portion of the court's order that addresses the fees for the discovery referee, i.e., Item 13. For all of the foregoing reasons, Plaintiff respectfully requests the Court to reconsider its decision to award

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Defendant fees for the discovery referee on a purely pro rata basis.

Dated: November 17, 2010

LAW OFFICES OF RI-IEUBAN & GRESEN

By L/ JA India 'Thompson, Attoreeys for Plaintiffs

:/

KI

Plaintiff Elfego Rodriguez's Motion for Reconsideration of Ruling on His Motion to Tax Costs

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DECLARATION OF INDIA S. THOMPSON I, India S. Thompson, declare as follows: 1. I am an attorney authorized to practice in all of the courts of the State of California an am an attorney in the Law Offices of Rheuban & Gresen, attorneys of record for all of the plaintiffs in

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this action, including Elfego Rodriguez. I have personal knowledge of the facts asserted herein, and if called to testify, I could and would testify competently thereto. 2. I joined the Law Offices of Rheuban & Gresen in late January 2010. When I joined this

8 firm, I learned that the Court had appointed Hon. Diane Wayne, Retired as the Discovery Referee 9 for this case. I was unaware of the circumstances surrounding the appointment. I have no personal 10 knowledge of the proceedings related to the appointment of the discovery referee. 11 3. Since joining Rheuban & Gresen, I have participated in the preparation of pleadings and

12 supporting documents in the following matters: (a) motion for summary judgment against Jamal 13 14 15 Childs, (b) motion for summary judgment against Elfego Rodriguez, (c) motion for separate trials, (d) motions to disqualify defendants' counsel, (e) motion to tax costs (Childs), (f) motion to tax costs (E. Rodriguez), and (g) ex parte application to continue hearing on motion for summary

16 judgment against Elfego Rodriguez. In none of these proceedings did either party or the court 17 discuss how or why the court ordered the appointment of a discovery referee. 18 4. In the volumes of pleadings submitted by both parties during the course of Elfego

19 Rodriguez's Motion to Tax Costs, neither party discussed how or why a discovery referee was 20 21 appointed. I represented Plaintiff Elfego Rodriguez at the hearing. 5. However, during the course of oral argument, the Court stated that Plaintiffs' counsel

22 requested the appointment of a discovery referee. A true and correct copy of the Reporter's 23 24 Transcript of the proceeding is attached hereto as Exhibit A. 6. A true and correct copy of the Court's tentative which was adopted as its final ruling on

25 Elfego Rodriguez's Motion and Amended Motion to Tax Costs is attached hereto as Exhibit E. 26 7. A true and correct copy of the Notice of Ruling (to which is attached is the Court's

27 tentative, adopted by the Court as its final ruling) which ordered the appointment of a discovery 28 referee is attached hereto as Exhibit C.

Plaintiff Elfego Rodriguez's Motion for Reconsideration of Ruling on His Motion to Tax Costs

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8. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 17` h day of November in Encino, California

India S. Thompson 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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Plaintiff Elfego Rodriguez's Motion for Reconsideration of Ruling on His Motion to Tax Costs

EXHIBIT AA

Reporter's Transcript has not been received yet. Upon receipt it will be filed with the Court

EXIHIBI'l l3

Rodriguez v. Burbank Police Dept.


BC 414602

November 10, 2010 Motion of ]Plaintiff Elfego Rodriguez to Tax Costs g r anted 1~ The motion is ranfl:ed i ~r~ kart and denied in p art. The memorandum of costs is altered to reflect a p
reduction of $912.58, as explained more fully below.

Plaintiff's amended motion has been disregarded as untimely. The deadline to file a motion to tax costs was October 14, 2010. Plaintiff's amended motion was filed on October 21, 2010, seven days after the deadline. The amended motion did not properly relate back to any notice that plaintiff gave defendant; it includes new arguments and requests. Plaintiff's claim that his amendment was intended to conform to a September 7, 2010 Court order on another plaintiff's motion to tax costs has no merit. Plaintiff waited five weeks after that ruling to file its amended motion to tax. Accordingly, the court has considered only plaintiff's original motion and defendant's original opposition. Item 1(c). Plaintiff's objection to defendant's attempt to recover costs for a first appearance for ten of eleven defendants is well taken. Ten of the eleven defendants were dismissed in 2009. Any request for costs now from those parties is untimely as it is past the 15 day deadline proscribed in CRC 3.1700(a)(1). Defendant does not address this objection. Accordingly, this cost item is reduced to $64 (20% of $320, the first appearance fee). Item 1 (f-g). Defendant incorrectly included $100 for parking fees it incurred while attending hearings in its memorandum of costs under the category for filing and motions fees. Defendant has not sufficiently met its burden of showing that parking fees are reasonably necessary to conduct litigation and not just a cost of doing business. Accordingly, the bill is reduced by $100. Item 4(e). Plaintiff's claim that because defendant charged plaintiff Childs with 100% of the depositions costs in another memorandum of costs it would be unfair to charge plaintiff for the same deposition costs has no merit because the Court reduced the amount of costs for plaintiff Childs arising out of the depositions to only 20% in a September 7, 2010 ruling. Billing plaintiff for a share of the depositions will not result in a double payment to defendant. Defendant has not met its burden of supporting why plaintiff should bear the costs of a deposition (Russell Moore's) that was not reasonably necessary for litigation concerning the plaintiff. Ladas v. Calif. State Auto Assn. (1993) 19 Ca1.App.4th 761, 774. Defendant makes no argument that the Moore deposition is relevant to plaintiffs case. The costs are taxed by $150.13 to reflect the Moore deposition costs. Plaintiff's argument that defendant's request for parking fees during depositions, $19.06, is unreasonable because it includes parking costs for more than one lawyer is not persuasive. Plaintiff offers no authority for the proposition that costs are unreasonable or outside the bounds of reasonable fees allowed by CCP 1033.5(a)(3) when a prevailing party incurs them on

account of employing more than one lawyer. Item 8. Witness fees ($37.50) for Russell Moore, $37.50 are taxed because defendant has not met its burden of showing that Moore's testimony was reasonably necessary to advance defendant's litigation with plaintiff. item 11. Defendant's cost of $368.95 f~ rr photocopies and court exhibits is not provided for by CCP 1033.5(a)(12), which allows costs for "[nr]odels and blowups of exhibits and photocopies of exhibits ... if they were reasonably helpful to aid the trier of fact." No trial was held on this matter. Any photocopy or exhibit that defendant made was merely a cost of conducting business and not created to "aid the trier of fact." Item 13. Plaintiff's objection to defendant's request for a share of the discovery referee's fees and the manner in which the defendant apportions this fee among the plaintiffs is not well taken. Fees for a court appointed special master to conduct discovery may be allowed as costs under CCP 1033.5(c)(4). Winston Square Homeowner's Ass 'n v. Centex West Inc. (1989) 213 Cal.App.3d 282, 292-93. Defendant divided the discovery referee's fee equally among the five plaintiffs for costs incurred by them on April 13, 2010 and then among all four remaining plaintiffs after April 13, 2010. This apportionment is reasonable and fair.
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EXHIBIT C

1 SOLOMON E. GRESEN [SBN: 164783] STEVEN V. RHEUBAN [SBN: 48538] 2 LAW OFFICES OF RHEUBAN & GRESEN 15910 VENTURA BOULEVARD, SUITE 1610 3 ENCINO, CALIFORNIA 91436 TELEPHONE: (818) 815-2727 4 FACSIMILE: (818) 815-2735 5 Attorneys fbr Plaintiffs Omar Rodriguez, Steve Karagiosian, Cindy Guillen-Gomez, Elfego Rodriguez and Jamal Childs 6 7 8

(SPACE BELOW FOR FILING STAMP ONLY)

SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF LOS ANGELES 10 CENTRAL DISTRICT 11 12 13 14 15 16 17 -vsOMAR RODRIGUEZ; CINDY GUILLENGOMEZ; STEVE KARAGIOSIAN; ELFEGO RODRIGUEZ; AND JAMAL CHILDS, Plaintiffs, CASE NO.: BC 414 602 Assigned to: Hon. Joanne B. O'Donnell, Judge NOTICE OF RULING ) Hearing

18 BURBANK POLICE DEPARTMENT; CITY ) Date: October 2, 2009 OF BURBANK; TIM STEHR; KERRY ) Time: 8:30 a.m. ) Dept: 19 SCHILF; JAMIE "J.J." PUGLISI; DAN 37 YADON; KELLY FRANK; PAT LYNCH; ) 20 MIKE PARRINELLO; AARON KENDRICK; ) DARIN RYBURN; AND DOES 1 THROUGH) 21 100, INCLUSIVE. Complaint Filed. May 28, 2009 Defendants. 22 23 24 25 26 TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on October 2, 2009 the Court adopted the tentative as its

27 ruling. A copy of the Court's tentative ruling is attached hereto and marked as Exhibit "A" and '. I incorporated herein by this reference.

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Plaintiffs were ordered to give notice. Dated: October 2, 2009 LAW OFFICEOF RHEUBAN & GRESEN

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


Jtprprc E. J1s.j1DE1N

or Plaintiffs Omar Rodriguez, Steve Karagiosian, en-Gomez, Elfego Rodriguez and Jamal Childs

2 NOTICE OF RULING

Omar Rodriguez, et al. v. Burbank Police Department, et al. BC 414602 October 2, 2009 Motions of Defendants City of Burbank and Burbank Police Department (1) to Compel Deposition Testimony of Plaintiffs Elfego Rodriguez and Omar Rodriguez and (2) Appointing Discovery Referee; request for sanctions The court takes judicial notice of plaintiffs' motion for protective order, including its attachments, but not of the truth of the matters stated therein. The motion to compel the continued deposition of plaintiff Elfego Rodriguez is granted. Counsel are ordered to meet and confer in the jury room before leaving Dept. 37 today to agree on the date, time and place of the continued deposition. The motion to compel plaintiff Omar Rodriguez to answer certain deposition questions is denied. The motion for appointment of a discovery referee is granted. The parties are to share the cost of the referee equally. CCP 639(d)(6)(A). Counsel are ordered to meet and confer in the jury room before leaving Dept. 37 today to reach agreement, if possible, on a discovery referee. If the parties are unable to agree, each party is ordered to submit to the court before leaving Dept. 37 a list of up to three nominees for appointment as referee. CCP 640. No sanctions. Elfego Rodriguez deposition. A protective order "may include, but is not limited to, one or more of the following directions:... (12) that designated persons, other than the parties to the action and their officers and counsel, be excluded from attending the deposition." CCP 2025.420. The court is not inclined to exclude defendants' representatives from the depositions at this time. Lowy Development Corporation v. Superior Court (1987) 190 Cal.App.3d 317, where limitations were imposed to prevent possible collusion, does not apply here because plaintiffs' counsel indicated that he did not wish to prevent the representatives from observing the testimony by stating that they could watch plaintiffs' testimony on videotape. Plaintiffs' claims of collusion and intimidation of witnesses are speculative in any event. If the police officers were still parties to the action, they would be permitted to attend plaintiffs' depositions, regardless of whether plaintiffs might feel intimidated by their presence. To the extent that the police officers are attending the depositions in the capacity of a representative of the defendant Department, plaintiffs fail to demonstrate sufficient grounds for excluding them. Finally, plaintiffs' desire to prevent certain representatives from attending the depositions is impractical. It is not likely that the City andlor Department can always predict that a particular representative will always be available to attend every deposition. In addition, despite plaintiffs' assertions that several persons who have attended the depositions had no reason to be there, defendants demonstrate that those persons (Ms. Rosoff and Ms. Arutyunyan) are a litigation assistant and paralegal, respectively, who are assisting defense counsel with the litigation of this matter. Plaintiffs' request that the court delay its decision on this issue until their motion for protective order is heard on October 29, 2009 is denied. Plaintiff Elfego Rodriguez walked out of his deposition on August 10, 2009. Plaintiffs did not file the motion for protective order until September 21, 2009. Defendants filed their motion to compel his attendance at deposition on

August 20, 2009 and are entitled to have a ruling on it without delay. Omar Rodriguez deposition questions. Defendants seek testimony responsive to the following question: "Who did you give these documents to that I've marked as OR0401 through -585?" Plaintiffs' counsel's objection on the grounds that the question sought information violative of the attorney-client privilege is well-taken. The attorney-client privilege covers all forms of communication, including the transmission of specific documents. Mitchell v. Superior Court (1984) 37 Cal.3d 591, 600; Wellpoint Health Networks v. Superior Court (1997) 59 Cal.App.4th 110, 119. To the extent that plaintiff provided any or all of the documents to his attorney, such information is entitled to the attorney-client privilege. The fact of transmission triggers the privilege. Defendants argument that the transmission of the documents is not protected by the attorney-client privilege because the transmission does not provide any insight into case strategy is not persuasive. Even though the documents at issue were produced to defendants in response to defendants' discovery requests, it cannot be reasonably disputed that responding to the question would tend to reveal the significance that plaintiff and/or his counsel ascribe to the documents. The documents would not have been given to counsel (if they were) unless they had some significance to plaintiff's case. Thus, plaintiff's testimony regarding the fact of the transmission would tend to reveal the transmitter's intended strategy. Discovery referee. A referee may be appointed on motion of any party or on the court's own motion where necessary "to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon." (CCP 639(a).) Appointment of a discovery referee is authorized only where "necessary" to hear and determine such motions or disputes. CCP 638(a)(5); Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2006) 8:1804-8:1804.1. The court finds that appointment of a discovery referee is necessary to hear and determine disputes, based on the Michaels declaration, which recites the "exceptional circumstances" that require the reference (CCP 639(d)(2)), and which plaintiffs' counsel does not refute. Appointment of a referee is justified where antagonism between the parties and/or counsel might otherwise prolong the proceedings and frustrate discovery. Weil & Brown, supra, 8:1804.5. Where no party has established an inability to pay a pro rata share of the referee's fees, the court may order the fees to be split on a pro rata basis. Id. at 8:1804.20. Plaintiffs make no showing that the cost of a discovery referee would be prohibitive or that they cannot not afford a pro rata share of the expenses. Sanctions. Because both parties presented colorable arguments for their positions, imposition of sanctions against plaintiffs would be unjust. CCP 2025.450(c)(1), 2025.480(f).

PROOF OF SERVICE 2 3 4 5 6
Lawrence A. Michaels Mitchell Silberberg & Knupp LLP 11377 West Olympic Boulevard Los Angeles, CA 90064-1683 Facsimile: (310) 312-3100 XX Linda Miller Savitt, Esq. Ballard Rosenberg Golper & Savitt, LLP 500 North Brand Boulevard, Twentieth Floor Glendale, California 91203 Facsimile: (818) 506-4827 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles. I am over the age of eighteen and am not a party to the within action. My business address is 15910 Ventura Boulevard, Suite 1610, Encino, California 91436. On October 2, 2009, I served a copy of the following document described as NOTICE OF RULING on the interested parties in this action as follows:

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BY MAIL: By placing a true copy thereof enclosed in a sealed envelope(s) addressed as above, and placing each for collection and mailing on that date following ordinary business practices. I am "readily familiar" with this business's practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the U.S. mail Postal Service in Los Angeles, California, in a sealed envelope with postage fully prepaid. BY OVERNIGHT DELIVERY: I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed as above. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. BY FACSIMILE: Based on an agreement of the parties to accept service by facsimile transmission, I faxed the documents to the person(s) at the facsimile numbers listed above. The telephone number of the sending facsimile machine is (818) 815-2737. The sending facsimile machine issued a transmission report confirming that the transmission was complete and without error. A copy of that report showing the time of service is attached. BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the person(s) at the e-mail address listed above. My electronic notification address is dj@rglawyers.com . I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. A copy of the electronic transmission showing the time of service is attached.

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STATE: I declare under penalty of perjury under the laws of the State of California that the above is true and correct. EXECUTED on October 2, 2009, at Encino, California. ,

Dapie-;hint"

PROOF OF SERVICE 2 3 4 5 6 7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 XX 27 XX Carol Ann Humiston Senior Assistant City Attorney Office of the City Attorney 275 East Olive Avenue, Burbank, California 91510-6459 Kristin A. Pelletier, Esq. Burke, Williams & Sorensen, LLP 444 South Flower Street, Suite 2400 Los Angeles, California 90071
California 91436.

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles. I am over the age of eighteen and am not a party to the within action. My business address is 15910 Ventura Boulevard, Suite 1610, Encino, On November 19, 2010, 1 served a copy of the following document described as PLAINTIFF ELFEGO RODRIGUEZ'S NOTICE OF MOTION AND MOTION FOR RECONSIDERATION OF ITS RULING ON DISCOVERY REFEREE FEES IN HIS MOTION TO TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATION OF INDIA S. THOMPSON IN SUPPORT THEREOF on the interested parties in this action as follows: Linda Miller Savitt, Esq. Lawrence A. Michaels Ballard Rosenberg Golper & Savitt, LLP Mitchell Silberberg & Knupp LLP 500 North Brand Boulevard, Twentieth Floor 11377 West Olympic Boulevard Glendale, California 91203 Los Angeles, CA 90064-1683

BY MAIL: By placing a true copy thereof enclosed in a sealed envelope(s) addressed as above, and placing each for collection and mailing on that date following ordinary business practices. I am "readily familiar" with this business's practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the U.S. mail Postal Service in Los Angeles, California, in a sealed envelope with postage fully prepaid. BY FACSIMILE: Based on an agreement of the parties to accept service by facsimile transmission, I faxed the documents to the person(s) at the facsimile numbers listed above. The telephone number of the sending facsimile machine is (818) 815-2737. The sending facsimile machine issued a transmission report confirming that the transmission was complete and without error. A copy of that report showing the time of service is attached. BY E -MAIL OR ELECTRONIC TRANSMISSION: Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the person(s) at the e-mail address listed above. My electronic notification address is ag@rglawyers.com . I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. A copy of the electronic transmission showing the time of service is attached. STATE: I declare under penalty of perjury under the laws of the State of California that the above is true and correct.
EXECUTED on November 19, 2010, at Encino, California. Annette Goldstein

11 Plaintiff Elfego Rodriguez's Motion for Reconsideration of Ruling on His Motion to Tax Costs