Opinion
1:10cv0147 LJO DLB
09-23-2011
GUADALUPE FONSECA, et al., Plaintiff, v. CITY OF FRESNO, Defendant.
ORDER CONTINUING HEARING ON DEFENDANTS' MOTION TO COMPEL
(Documents 33 and 35)
Date: October 11, 2011
Time: 9:30 a.m.
Courtroom 9
On August 25, 2011, Defendants City of Fresno and Officer Mark Wilcox filed this motion to compel the deposition of Plaintiff Guadalupe Fonseca ("Mr. Fonseca"). The motion was heard on September 23, 2011, before Dennis L. Beck, United States Magistrate Judge. Melanie Partow appeared on behalf of Mr. Fonseca. Brande Gustafson appeared on behalf of Defendants City of Fresno and Officer Wilcox. Stephen Pass appeared on behalf of Defendant Officer Mike Trenholm.
BACKGROUND
Mr. Fonseca, by and through his Guardian Ad Litem Mary Guerrero, and Paula Fonseca, filed this civil rights action against the City of Fresno, Fresno Police Officer Mark Wilcox, California Highway Patrol Officer Mike Trenholm and Does 3-10, on January 27, 2010. Plaintiffs' allegations arise out of Mr. Fonseca's arrest on December 12, 2008.
Plaintiffs filed a First Amended Complaint ("FAC") on June 22, 2010.
Pursuant to the September 15, 2010, Scheduling Conference Order, the non-dispositive motion filing date is October 14, 2011, and the dispositive motion filing date is October 24, 2011. The pretrial conference is set for February 1, 2012 and trial is set for March 19, 2012. On July 20, 2011, the parties stipulated to extend discovery as follows: non-expert discovery cutoff- October 14, 2011; exert discovery cutoff- October 28, 2011.
Defendants City of Fresno and Officer Mark Wilcox ("City Defendants") filed this motion to compel Mr. Fonseca's deposition on August 25, 2011. The parties filed a joint statement on September 16, 2011.
Defendant CHP Officer Trenholm is not a moving party but agrees with all facts and arguments set forth by the City Defendants.
FACTUAL ALLEGATIONS
According to the FAC, on or about December 12, 2008, Mr. Fonseca, a Latino male of majority age who suffers from a mental disability, walked out of his house in Fresno, California, to take out the trash. While on duty, Officers Wilcox and Trenholm detained and arrested Mr. Fonseca just outside the doorway to his residence for no reason and without probable cause.
Plaintiff Paula Fonseca, Mr. Fonseca's mother, observed the incident and told the officers that he was mentally disabled and was not a criminal. Officers Wilcox and Trenholm used excessive force in the course of unlawfully detaining Mr. Fonseca, including but not limited to forcibly grabbing him, slamming him on the ground, punching him and kicking him. He complied with the Officers at all times and was not armed.
Mr. Fonseca was taken into custody with obvious injuries and did not refuse medical aid. Officers Wilcox and Trenholm did not immediately report the use of force or seek medical assistance for Mr. Fonseca. As a result of the excessive force, Mr. Fonseca remained in a coma for eight days. Moreover, Paula Fonseca suffered a heart attack on or about December 12, 2008, while in the hospital with him.
Based on these facts, Plaintiffs allege causes of action under the United States Constitution and California law.
DISCOVERY AT ISSUE
City Defendants seek to compel the deposition of Mr. Fonseca over Plaintiffs' objections that he is mentally incompetent to testify. Despite Plaintiffs' willingness to stipulate that Mr. Fonseca is not competent to testify and will not be called as a witness at trial, City Defendants believe that a videotaped deposition would be "useful" to an expert in determining whether an Independent Medical Examination is necessary.
However, where there is a threshold issue as to competency, a deposition is not the proper method for testing a witness's competency. Instead, the issue is better addressed by gathering sufficient information to make a reasoned competency determination prior to the deposition. To this end, the parties have agreed to cooperate in document production to assist in making a competency determination before reaching the issue of Mr. Fonseca's deposition. The parties are also directed to discuss extensions of the discovery deadlines that will accommodate this discovery without moving the pretrial conference and trial dates.
ORDER
Accordingly, the Court CONTINUES this matter to October 11, 2011, at 9:30 a.m., in Courtroom 9. The parties shall contact the Court prior to this date if the matter is resolved and a hearing is no longer necessary.
IT IS SO ORDERED.
Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE