1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSEPH LAKE, No. 2:19–cv–1439–DAD–KJN 12 Plaintiff, ORDER 13 v. (ECF Nos. 140, 141, 142, 146.) 14 CITY OF VALLEJO, et al., 15 Defendants. 16 17 Currently pending before the undersigned1 are three motions from plaintiff concerning the 18 course of discovery in this case (ECF Nos. 140, 141, 142), defendants’ opposition and request for 19 a protective order (ECF No. 143), and the court’s order to show cause, with plaintiff’s response, 20 regarding sanctions against plaintiff’s counsel (ECF Nos. 146, 147, 148). The court held a 21 hearing on these matters on November 28, 2023. 22 For the reasons discussed at the hearing and as stated below: (I) plaintiff’s request for 23 reconsideration on the reopening of discovery is DENIED; (II) the parties are ordered to confer 24 over the scope of plaintiff’s attempts to depose a Rule 30(b)(6) witness, as outlined at the hearing 25 and in this order; and (III) plaintiff’s counsel is SANCTIONED $750 under the court’s inherent 26 powers and 28 U.S.C. § 1927.
28 1 This matter was referred to the undersigned pursuant to Local Rule 302(c)(1). 1 Background and Procedural Posture 2 Plaintiff filed his complaint in July of 2019, naming as defendants the City of Vallejo, the 3 Vallejo Police Department, and 5 Doe officers. Plaintiff asserted claims under 42 U.S.C. § 1983, 4 alleging various theories under the Fourth Amendment including malicious prosecution, unlawful 5 stop, detention, search and seizure, state created danger, and assault and battery/excessive force. 6 (ECF No. 1.) Defendant City answered, and the court entered a scheduling order requiring: (i) an 7 amended complaint be filed by February 28, 2020; (ii) fact discovery be completed by August of 8 2020; and (iii) expert discovery be completed by October of 2020. (ECF Nos. 8, 14.) The parties 9 proceeded to exchange discovery beginning in January of 2020. (See ECF No. 136.) 10 Plaintiff filed an amended complaint on March 24, 2020, asserting similar claims against 11 Officers Aspergren, Postolaki, Cano, and Nichols and adding two additional claims: a “Public 12 Entity Vicarious Liability” claim under Cal. Gov. § 815.2(a) against the City, the Vallejo Police 13 Chief, Vallejo City Manager, City Council, and Vallejo Police Department; and a Monell claim 14 against the City, City Manager, Police Department, and City Council. (ECF No. 21.) Defendants 15 moved to strike the complaint as untimely, given that it was filed a month after when the district 16 judge ordered. (ECF No. 23.) Plaintiff requested leave to file a second amended complaint. 17 (ECF No. 25.) Chief District Judge Mueller took these matters under submission in June of 2020. 18 (ECF No. 33.) In August, the parties stipulated to extend the fact and expert discovery deadlines 19 until November of 2020, which the court granted. (ECF No. 36, 38.) 20 In November of 2020, plaintiff filed seven discovery-related motions. (ECF Nos. 47, 48, 21 49, 50, 52, 53, 54, and 57.) The undersigned granted plaintiff until March of 2021 to depose 22 defendant Aspergren. (ECF No. 63.) The court denied without prejudice plaintiff’s motion to 23 compel the deposition of City Manager Nyhoff and a “person most knowledgeable” (“PMK”) 24 regarding the City’s police policies, customs, and practices, reasoning that because the district 25 judge had yet to rule on whether the complaint stated a cognizable Monell claim, discovery on 26 this issue should be held in abeyance until the pleadings were settled. (Id.) The undersigned also 27 noted counsel’s failure to meet a filing deadline for this motion, reminding that the parties must 28 confer on discovery matters prior to submitting lengthy motions to the court. (Id.) 1 In December of 2020, Judge Mueller granted plaintiff’s request for leave to amend, 2 finding good cause given the effects of the COVID-19 pandemic. (ECF No. 66.) Plaintiff filed 3 his second amended complaint in January of 2021, asserting similar § 1983 claims against the 4 same four officers plus one additional officer (in both their individual and official capacities), as 5 well as Section 815.2 claim and Monell claim against the City, City Council, City Manager 6 Nyhoff, and Police Chief Bidou. (ECF No. 69.) Defendants moved to dismiss on multiple 7 grounds, seeking dismissal of all official-capacity and Monell styled claims as well as portions of 8 the individual-capacity claims. (ECF No. 74.) Plaintiff again requested leave to amend the 9 complaint. (ECF No. 80.) Judge Mueller extended the fact discovery deadline to July 30, 2021, 10 pursuant to the parties’ stipulation. (ECF No. 76.) 11 In April of 2021, defendants moved to strike two of plaintiff’s rebuttal expert witnesses as 12 untimely. (ECF No. 80.) The undersigned concurred, finding plaintiff failed to meet the initial- 13 disclosures deadline (after being granted a short extension), and the experts’ proposed testimony 14 was not true rebuttal testimony (as argued by plaintiff). (ECF No. 91.) 15 In May of 2021, defendants produced Lt. Ramrakha as a PMK on a limited number of 16 topics regarding the City’s police practices. (See ECF No. 98 at 2.) In June of 2021, plaintiff’s 17 counsel called the undersigned’s chambers requesting, among other things, an informal discovery 18 conference or a chance to talk directly with the undersigned about this case; the undersigned 19 reminded plaintiff’s counsel (by order) of the undersigned’s rules for informal conferences as 20 well as the prohibition against ex parte contact with the court. (ECF No. 92.) 21 In July of 2021, plaintiff again moved to extend the discovery deadlines and to compel 22 production of another PMK. (ECF Nos. 93, 98.) Defendants objected to producing City Manager 23 Nyhoff or another PMK on “certain categories,” given the pendency of the motion to dismiss on 24 the second amended complaint regarding the Monell and Negligent Training claims. (See ECF 25 No. 93.) The undersigned reset plaintiff’s scheduling motion to conform to Local Rule 230, 26 noting plaintiff’s failure to follow the timelines in the rule. The court also noted plaintiff’s failure 27 to follow Local Rule 251 for the motion to compel, citing plaintiff’s noticing of the hearing after 28 the close of discovery as well as plaintiff’s decision to file “a fully-briefed motion and over 200 1 pages of exhibits.” (ECF No. 104 at 2.) On July 30, 2021, instead of denying plaintiff’s motions, 2 the court stayed all discovery in the case until the pleadings were set, noting the uncertain state of 3 whether a Monell claim was cognizable.2 (Id.) In so doing, the undersigned ordered that once 4 the district court resolved the Monell pleadings issue, the parties should confer on the scope of the 5 remaining discovery and request the discovery stay be lifted. (Id.) The court ordered the parties 6 to file a joint statement and re-address, if necessary, arguments regarding the discovery deadlines 7 and another PMK deposition. (Id.) 8 In August of 2022, the case was reassigned from Chief District Judge Mueller to District 9 Judge Drozd. (ECF No. 106.) Between then and January of 2023, plaintiff was granted leave to 10 amend, filed a third amended complaint, and drew another motion to dismiss from defendants. 11 (See ECF Nos. 112-122.) On June 20, 2023, Judge Drozd granted defendants’ motion in part and 12 denied in part, dismissing (among other claims) plaintiff’s Monell claims due to a lack of 13 allegations of multiple incidents. (ECF No. 126 at 14.) Relevant here, Judge Drozd construed 14 plaintiff’s Monell claim as asserting two theories: that the City has “(i) engaged in an allegedly 15 unconstitutional policy or custom of arresting, through the use of excessive force, and charging 16 suspects when those suspects refuse to provide their identification when requested by police”; and 17 “(ii) failed to adequately train officers in de-escalation techniques or failed to hire officers trained 18 in such de-escalation techniques.” (ECF No. 126 at 14.) In resolving the 3AC, Judge Drozd 19 noted counsel’s repeated failure to amend the complaint in conformity with the law and the 20 court’s instructions. (See id.) However, plaintiff was granted leave to amend; he then filed a 21 fourth amended complaint and drew yet another motion to dismiss. (See ECF Nos. 127-133.) 22 On August 31, 2023, Judge Drozd granted defendants’ motion to dismiss in part and 23 denied in part. (ECF No. 134.) Plaintiff’s Bane Act, Ralph Act, false arrest and false 24 imprisonment, and First Amendment claims were dismissed for failure to follow the court’s prior 25 orders; plaintiff’s reasserted Monell claims went unchallenged by defendants. (See ECF No. 26 128.) Thus, Judge Drozd found: 27 2 In March of 2023, the assigned district judge denied all pending discovery motions in order to 28 clean up the docket, given the continued fight over the pleadings. (ECF No. 124.) 1 This action now proceeds only on plaintiff’s: 2 a. First cause of action for an unlawful stop in violation of the Fourth Amendment against defendant Postolaki; 3 b. Third cause of action for excessive use of force in violation of 4 the Fourth Amendment against defendants Aspegren, Cano, Postolaki, and Nichols; 5 c. Fourth cause of action for unlawful arrest in violation of the 6 Fourth Amendment against defendants Aspegren, Cano, Postolaki, and Nichols; 7 d. Fifth cause of action for Monell liability against defendants City 8 of Vallejo and the City Council of the City of Vallejo; and 9 e. Eighth cause of action for common law battery against defendants Aspegren, Cano, Postolaki, Nichols, and City of 10 Vallejo[.]
11 (ECF No. 134.) In resolving the 4AC, Judge Drozd generally noted counsel’s attempt to amend 12 was “contrary to the court’s prior order.” (Id.) 13 Defendants answered shortly thereafter, and plaintiff requested the discovery stay be lifted 14 (which the undersigned granted). (ECF Nos. 135, 137, 139.) Alongside the request to lift the 15 discovery stay, plaintiff also briefly requested the court “reinstall the prior [] motion to compel 16 Nyhoff for deposition or alternative pmk for Monell, motion to extension discovery because new 17 causes of actions acted [sic],” and requested “limited discovery to reopened for 4 months” [sic]. 18 (ECF No. 135.) The parties also submitted a joint statement, and defendants opposed any further 19 reopening of discovery aside from expert discovery. (ECF Nos. 136, 138.) The undersigned 20 found plaintiff’s broad request to reopen discovery inappropriate, given that fact discovery had 21 been closed since July 31, 2021, and the only new claim allowed in the 4AC was a battery claim, 22 which was part and parcel with plaintiff’s excessive force claim. (ECF No. 139 at 5.) Regarding 23 the PMK deposition, the court found the matter not properly before it, as it was “impossible to tell 24 what Monell-related topics are still outstanding given the paucity of briefing on this specific 25 issue.” (Id.) The court directed the parties to confer over the scope of any revisited PMK 26 deposition, noting conferral was needed so the deponent can “speak to the allegedly unlawful 27 policies, practices, and customs asserted in the fourth amended complaint.” (Id.) The court 28 instructed the parties to submit a stipulation on this matter should they agree, and if not, 1 instructed plaintiff to “file a motion to compel focused specifically on this issue.” (Id.) The court 2 directed the parties to follow the procedures outlined in Local Rule 251. (Id.) 3 On October 30, 2023, plaintiff filed three separate sets of documents on the court’s 4 docket: a “Memorandum for motion to compel defendant to destinate [sic] another pmk and 5 produce City Council for deposition” (ECF No. 140); a “Motion to Compel City to destinate [sic] 6 another PMK and to produce city counsel for deposition” (ECF No. 141); and a “Motion for 7 Reconsideration re reopending [sic] discovery” (ECF No. 142). Defendants opposed, and 8 plaintiff filed a reply brief and request for judicial notice. (ECF Nos. 143, 144, 145.) On 9 November 15, 2023, the court issued an order to show cause why plaintiff’s counsel should not be 10 sanctioned for her repeated failure to follow the court’s rules and orders. (ECF No. 146.) 11 Therein, the undersigned found plaintiff’s October 30th filings violated specific portions of Local 12 Rules 251 and 133 and cited prior instances where the judges of this court noted counsel’s 13 failures to follow these and other rules and court orders. (Id.) Plaintiff responded to the order to 14 show cause on November 21, 2023. (ECF No. 147.) On November 28, 2023, the undersigned 15 held a hearing on plaintiff’s motions and the issues raised in the order to show cause. 16 Discussion 17 I. Plaintiff’s Request for Reconsideration re: Reopening of Fact Discovery 18 In the order issued September 28, 2023, the undersigned denied plaintiff’s “broad request 19 to reopen discovery for 3-4 months.” (ECF No. 139 at 5.) In doing so, the court reasoned: 20 [T]he individual § 1983 claims against the four officers have been live since the first amended complaint. Plaintiff’s only additional 21 claim against these officers in their individual capacity is the battery claim. As defendants note, the standards of proof for a 22 battery claim is the same as an excessive force claim under Section 1983. Plaintiff presents no compelling argument why this 23 discovery could not have been propounded prior to the closure of discovery in July of 2021. Further, defendants note (and plaintiff 24 does not appear to dispute) that written discovery on the individual claims was responded to in late 2020, and these four officers were 25 deposed throughout 2020. Thus, plaintiff’s broad request is denied. 26 (Id. (citations omitted).) 27 Plaintiff now requests reconsideration of this order. In so doing, plaintiff does not offer 28 arguments regarding the court’s reasoning on the battery claim, even though he requests full 1 reopening of discovery for 4-6 months. Instead, plaintiff’s motion for reconsideration appears to 2 focus on reopening discovery “for limited purposes the topic of Monell, AG investigatory of the 3 pattern, custom and practice, and for expert discovery.”3 (ECF No. 142.) 4 The court has discretion to reconsider and vacate a prior order. Barber v. Hawaii, 42 F.3d 5 1185, 1198 (9th Cir. 1994); Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir. 1983) (same). A 6 motion for reconsideration should not be granted, absent highly unusual circumstances, unless the 7 district court is presented with newly discovered evidence, committed clear error, or if there is an 8 intervening change in the controlling law.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH 9 & Co., 571 F.3d 873, 880 (9th Cir. 2009) (cleaned up); see also Local Rule 230(j) (requiring that 10 a party seeking reconsideration of a prior order “made upon the same or any alleged different set 11 of facts” to argue, among other things, “(3) what new or different facts or circumstances are 12 claimed to exist which did not exist or were not shown upon such prior motion, or what other 13 grounds exist for the motion; and (4) why the facts or circumstances were not shown at the time 14 of the prior motion”). “A motion for reconsideration must (1) demonstrate reasons why the court 15 should reconsider its prior decision and (2) set forth facts or law of a strongly convincing nature 16 to induce the court to reverse its prior decision.” Morris v. McHugh, 997 F. Supp. 2d 1144, 1172 17 (D. Haw. 2014); see also U.S. v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 18 2001) (“A party seeking reconsideration must show more than a disagreement with the Court’s 19 decision, and recapitulation of that which was already considered by the Court in rendering its 20 decision.”); Northwest Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925–26 (9th 21 Cir. 1988) (noting that motions for reconsideration are disfavored and are not the place for parties 22 to make new arguments not raised in the original briefs). 23 Here, plaintiff argues the court has discretion to reopen discovery and modify the 24 scheduling order because of new facts that could not have been known to plaintiff before the 25 court issued its September 28, 2023 order. Plaintiff cites as the “new facts” a stipulated judgment 26 3 Plaintiff’s seeking of additional fact discovery related to the Monell claim—beyond a PMK 27 deposition—was not clearly presented in plaintiff’s previous motion. (ECF No. 136.) While the court explicitly left open the possibility for a PMK deposition on his Monell claims (see ECF No. 28 139 at 5 and Section II below), the previous order denied any further fact discovery. 1 entered into between the City of Vallejo/Vallejo Police Department and the California Attorney 2 General, which was memorialized on June 5, 2020, and submitted to the Solano Superior Court 3 on October 16, 2023. (See ECF No. 142-1 at Ex. 2.) This stipulated judgment calls for the 4 Vallejo Police Department “to collaborate on a comprehensive modernized policing plan that 5 included a review of 45 reform recommendations made by VPD’s expert consultants . . . to 6 modernize VPD’s current [use of force] policies and practices.” (Id. at 3.) Plaintiff states he 7 wishes to question the City Council or its PMK about this stipulated judgment (as well as 8 multiple other topics) “for the limited purposes” of investigating his Monell claim. Plaintiff 9 believes his case was one of those investigated for the stipulated judgment. (ECF No. 142 at 9.) 10 To the extent plaintiff requests reconsideration of the court’s order denying reopening of 11 discovery for all purposes because of the existence of this stipulated judgment, he presents no 12 arguments demonstrating “newly discovered evidence, [the court’s] clear error, or [] an 13 intervening change in the controlling law.” Marlyn Nutraceuticals, 571 F.3d at 880. The fact that 14 a stipulated judgment was entered into in October of 2023 has no bearing on whether plaintiff 15 could have obtained—while fact discovery was still open—facts underlying cases that may align 16 with his Monell theories (regardless of whether those cases were discussed during the stipulated 17 judgment negotiations), documents like personnel files of the officers or other logs and records 18 surrounding the incident in plaintiff’s case. Accordingly, this broad request is denied. Northwest 19 Acceptance, 841 F.2d at 925–26. 20 Insomuch as plaintiff requests the court reconsider reopening discovery so he can conduct 21 a PMK deposition for the Monell claim, plaintiff appears to misconstrue the court’s prior orders. 22 The court has consistently held this issue in abeyance, first placing any PMK deposition on hold 23 in July of 2021 until the pleadings were set (see ECF No. 104), then informing the parties in 24 September of 2023 to raise the issue with the court if no agreement was reached (see ECF No. 25 139). Thus, to the extent plaintiff requests he be allowed to conduct further PMK depositions on 26 his two Monell theories, plaintiff need not request reconsideration because the undersigned never 27 denied this request. The scope of any further PMK deposition(s) is discussed in Section II below. 28 /// 1 II. Plaintiff’s PMK Deposition and Defendants’ Request for a Protective Order 2 Turning to the matter of the PMK deposition regarding plaintiff’s Monell claim, the court 3 previously left this issue open to resolution because the pleadings had been in flux from the 4 inception of the case in 2019 through the summer of 2023. (See ECF No. 104.) Once it became 5 clear plaintiff would be allowed to proceed with his Monell claim, the undersigned granted a 6 limited extension of fact discovery for plaintiff to revisit relevant topics in a PMK deposition. 7 (ECF No. 139.) The term ‘revisit’ is used here because defendants previously produced a Lt. 8 Ramrakha in May of 2021, presumably by agreement of the parties, as a person most 9 knowledgeable of the facts underlying plaintiff’s then-disputed Monell claim. Given this fact, on 10 September 28, 2023, the undersigned ordered the parties “to confer over the scope of any further- 11 needed PMK deposition,” directing that if the parties could not come to an agreement, plaintiff 12 was to file a motion to compel, following Local Rule 251, by October 30, 2023. (Id. at 5-6.) The 13 court, being aware of the considerable vitriol displayed between counsel throughout this case, 14 also instructed the parties to use the conferral as a chance to reset regarding their professional 15 obligations. (Id. at 6.) Plaintiff filed a motion to compel on October 30th. (ECF No. 141.) 16 Defendants now contend that, since the September 28th order, plaintiff’s counsel has failed 17 to confer over the scope of another PMK deposition or the propriety of Lt. Ramrakha’s 2021 18 answers. (ECF No. 143 at 5-7.) Defendants argue that plaintiff did not submit the PMK topics 19 counsel wishes to investigate until hours before submitting the motion to compel. Defendants 20 also argue the topics plaintiff proposes are irrelevant to plaintiff’s Monell claim, and so the court 21 should both deny counsel’s motion to compel another deposition of Lt. Ramrakha and quash the 22 notices of deposition on the Vallejo City Council, Mayor, City Attorney, or City Manager. (Id. at 23 at 7-11.) Plaintiff’s argument reaches back to when the issue was first raised in July of 2021, 24 contending defendants have obstructed attempts to obtain discovery on the Monell claims since 25 Lt. Ramrakha’s May 2021 deposition. (ECF No. 141.) Plaintiff asserts the topics counsel wishes 26 to inquire into—between 9-17 broad topics spanning from use of force policies and “pretextual 27 stops” through the City’s negotiation of a stipulated judgment with Attorney General Bonta in 28 another case—are all relevant to the Monell claims. (Id. at 6-7.) 1 a. Plaintiff’s Counsel’s Failure to Confer 2 First, the court finds that plaintiff’s counsel failed to reasonably confer with defense 3 counsel over the proposed topics listed in the motion to compel. Counsel baldly admits as much 4 in her October 30th declaration, asserting “today is the last day to file so I am filing a motion.” 5 (ECF No. 141-1 at ¶ 2.) Despite this admission, counsel for the parties appear to have exchanged 6 emails and one phone call between October 16th and 30th. (Id. at ¶¶ 7-10; ECF No. 143-1 at ¶¶ 2- 7 8.) The substance of these communications are as follows:
8 - October 16: Plaintiff’s counsel’s email stating in full: “I just heard on the 9 radio about the AG Rob Bonta settlement with Vallejo Police Department, it’s all over the radio and the news today. I left a message with the AG’s office 10 and waited for them to get back to me. I have not heard back from you about the Judge’s order...on PMK etc.” (ECF No. 141-1 at 9.); 11 - October 17: Plaintiff’s counsel’s email stating she “tried reaching out” to 12 defense counsel the day before but had not heard back regarding the 13 undersigned’s September 28, 2023 order. (ECF No. 143-1 at 5-6.);
14 - October 17: Defense counsel’s email refuting that plaintiff’s counsel tried to “reach out,” reiterating that the parties should confer over any rescheduled 15 PMK deposition and with a list of topics plaintiff sought. (Id. at 5.);
16 - October 24: Plaintiff’s counsel email requesting defendants produce the 17 Vallejo mayor, city attorney, city manager, and interim police chief to discuss the October 16, 2023 stipulated judgement between Vallejo and the California 18 Attorney General, plus “all information of the 20 incidents of excessive force by Vallejo PD used by Rob Bonta’s office.” Therein, plaintiff asserts “Your 19 prior pmk (Lt. Ramrakha) is not knowledgeable in fact he was not able to answer a lot of questions in prior deposition. Lt. Ramrakha is not most 20 knowledgeable on Monell topics.” (ECF No. 141-1 at 18-19.); 21 - October 25: Defense counsel’s reply, asserting the October 24 email was not 22 a proper conferral on the scope of the PMK deposition. (Id. at 17.);
23 - October 27: Plaintiff’s counsel’s email arguing that the city manager, the mayor, city council, and police chief were originally defendants; that plaintiff 24 can use the stipulated judgment against defendants and “I guess we’ll let the judge decide because you are refusing the PMK defendant (or the city 25 manager who is a lower ranking official)”; that PMKs like the president of the 26 U.S. can be deposed; that there generally were “a lot of objections” during Lt. Ramrakha’s deposition; that mediation was appropriate and naming a dollar 27 amount for settlement; and indicating that 12 other city and private attorneys should get involved in this case. (Id. at 15-16.); 28 1 - October 27: Defense counsel’s email memorializing of counsels’ phone call, 2 contending that (a) plaintiff’s counsel should not attempt ex parte contact with 3 the city attorney; (b) all defendants save the four officers and the legislative body have been dismissed; (c) defendants are the ones to decide which 4 individual would serve as a PMK based on the topics of information sought; (d) there were portions of Lt. Ramrakha’s deposition where he did speak to 5 use of force policies; and (e) the stipulated judgment topics are beyond the scope of plaintiff’s Monell claims. (Id. at 13-15.); 6
7 - October 30: Plaintiff’s counsel’s email concluding the discussion was futile; arguing as to who the parties in the case are, what Lt. Ramrakha said and 8 could not say, what the stipulated judgment requires; and that counsel’s full arguments would be made in the motion to compel. (Id. at 12-13.); 9 - October 30: Plaintiff’s counsel’s email notifying defense counsel of 10 deposition for a City PMK, City Manager Nyhoff, or member of City Council, 11 regarding 9-17 different topics. (ECF No. 143-1 at 9-11.)
12 These emails demonstrate that plaintiff’s counsel did not begin discussing the substance of any 13 further PMK deposition until a week before the motion was due. Importantly, nowhere does the 14 undersigned see plaintiff’s counsel’s proposed topics listed in any detail until the October 30th 15 email to defense counsel; even then, it is not clear how many topics plaintiff proposes or what are 16 the scope of those topics. (See ECF No. 141-1 at 12 (listing 9 topics pinned to the resolution in 17 the stipulated judgment)); ECF No. 143-1 at 2-3 ¶ 9 (defense counsel noting the existence of 9 18 proposed topics); Id. at 9-11 (plaintiff’s notice of PMK deposition appearing to list either 11 or 17 19 topics).) Given this failure on plaintiff’s counsel’s part, the parties are ordered to continue 20 conferring over any proposed topics. 21 b. Scope of a PMK Deposition 22 To guide the parties in their conferral efforts, the court addresses plaintiff’s arguments and 23 makes the following findings. Plaintiff contends Lt. Ramrakha is not a proper PMK for his 24 Monell claims, but the scope of this argument is not clear. At times, plaintiff focuses on whether 25 the City has properly produced a PMK for his first theory: that the Lieutenant “is not 26 knowledgeable about the police pattern, customs and practices.” (See ECF No. 141 at 8 27 (“Lieutenant Sanjay Ramrakha whom plaintiff already deposed in May 2021 does not process 28 knowledge about customs, patterns and practices of City of Vallejo’s violation including Joseph 1 Lake’s case. He only teaches a few courses on training.”).) However, at other times plaintiff 2 appears to contend Lt. Ramrakha was also unable to speak to the second Monell theory. (See id. 3 at 12 (“Furthermore, Lt Ramrakah [sic] evaded some of the plaintiff’s questions or was unable to 4 answer questions. The deposition was riddled with objection and even Lt Ramrakah [sic] said 5 that he did not train the individual officers and that he does not know about Joseph Lake’s case.”). 6 Plaintiff also asserts Lt. Ramrakha is not knowledgeable on matters such as the City’s budgeting 7 process, the stipulated judgment between the City and California Attorney General in the other 8 case, or the City Mayor’s perspective on the body cam footage of plaintiff’s interactions with 9 Vallejo P.D. in 2018. Plaintiff then requests the court’s blessing in compelling other individuals 10 to appear at a PMK deposition, including Vallejo City Manager Nyhoff, the Vallejo City 11 Attorney, Mayor and/or City Council Members. (See id.) 12 While the scope of discovery under the federal rules is broad, it is not unlimited. Under 13 Fed. R. Civ. P. 26(b), the scope of a PMK deposition must be relevant to plaintiff’s two Monell 14 theories and proportional to the needs of the case. According to Judge Drozd’s June 20, 2023 15 order, plaintiff’s case proceeds on two theories under Monell: whether the City has “(i) engaged 16 in an allegedly unconstitutional policy or custom of arresting, through the use of excessive force, 17 and charging suspects when those suspects refuse to provide their identification when requested 18 by police”; and “(ii) failed to adequately train officers in de-escalation techniques or failed to hire 19 officers trained in such de-escalation techniques.” (See ECF No. 126 at 14 (Judge Drozd’s order 20 on plaintiff’s 3AC.4) In May of 2021, Lt. Ramrakha was made available to speak to “Vallejo 21 Police Department Use of Force policy No. 300 in effect at the time of June 27, 2018, and the
22 4 In this order, the court construed plaintiff’s Monell claims in this way given the allegations 23 surrounding plaintiff’s interactions with the individual officers in July of 2018 that gave rise to his three § 1983 claims. (ECF No. 126.) However, the Monell claim was dismissed because the 24 3AC failed to allege non-conclusory facts indicating the July 2018 incident was more than an isolated incident. (Id.) Plaintiff referenced in briefing four cases that allegedly support his 25 custom and failure to train allegations. (Id.) Judge Drozd instructed plaintiff to cite these or other cases when amending, but the 4AC does not appear to do so. (See ECF No. 127.) However, and 26 perhaps seeing the writing on the wall, defendants did not challenge this failure in their motion to 27 dismiss the 4AC. (See ECF No. 128.) Regardless, as discussed here, plaintiffs Monell claims are pinned to the facts of his case, as construed by Judge Drozd’s June 2023 order, and so the 28 undersigned issues this discovery order with these confines in mind. 1 training generally provided thereunder during that timeframe as to carotid holds, de-escalation 2 and takedowns.” These topics appear to align with plaintiff’s second Monell theory, and so 3 questioning of Lt. Ramrakha on these topics appears appropriate. With this in mind, the court 4 finds many of the topics discussed in plaintiff’s counsel’s October 30th 5:47 p.m. email, many of 5 the 17 topics described in plaintiff’s “Notice of Deposition Person(s) Most Knowledgeable,” and 6 counsel’s assertions in the response to the order to show cause, go well beyond the scope of 7 plaintiff’s two Monell theories. (See ECF Nos. 141-1 at 5-6; 143-1 at 9-11; 147 at ¶¶ 6, 10, 12, 8 13, 20, 24, 27.) 9 First, plaintiff’s efforts in seeking to depose a PMK on “the agreement made with the 10 California Attorney General” is an inappropriate fishing expedition. Rivera v. NIBCO, Inc., 364 11 F.3d 1057, 1072 (9th Cir. 2004) (“District courts need not condone the use of discovery to engage 12 in fishing expeditions.”). The only connection between his case and the subject of the stipulated 13 judgment that plaintiff attempts to make is his belief that his case was one of the cases discussed 14 in the negotiations. But plaintiff knows the details of his case and need not explore what others 15 think about it in order to assert his claims. To the extent plaintiff argues the City may have 16 discussed other excessive-force cases during the negotiations behind the stipulated judgment, 17 plaintiff can do his own research into publicly available cases.5 Counsel is not permitted to dig 18 into a stipulated judgment so that she can utilize the Attorney General’s efforts in a different 19 matter in order to make out plaintiff’s case for him. See, e.g., Lee v. Stonebridge Life Ins. Co., 20 2013 WL 3889209, at *2 (N.D. Cal. July 30, 2013) (declining to order counsel’s fishing 21 expedition where plaintiff wished to look at the entirety of defendants documents to then 22 determine what subset of information it would use to find additional evidence, and noting the 23 routine process generally used to conduct this kind of discovery that counsel failed to follow). 24 5 The court notes that because plaintiff did not cite specific cases in the 4AC—despite being 25 ordered to do so by Judge Drozd—it is unclear what other cases plaintiff intends to discuss with the PMK regarding any such alleged custom. However, defendants did not challenge the Monell 26 claim in its last motion to dismiss, and so the fact remains that these theories are alive in this case. 27 Thus, when the parties confer, they should agree to confine the scope of this line of questioning to other cases with similar facts as plaintiff’s 2018 encounter, as is either publicly available or a part 28 of the universe of information already disclosed between the parties. 1 Second, the phrasing of many of the topics plaintiff seeks (to the extent plaintiff intends 2 them to be distinct from the stipulated judgment) are forward looking. (See id. (defining topics 3 related to the CAB and POAC oversight, development of future policies and training, and 4 auditing of these future efforts).) The 4AC seeks damages, attorney’s fees, and costs—and does 5 not seek injunctive relief. (ECF No. 127 at 44.) In proposing these topics, plaintiff appears to 6 confuse the subject of any PMK (i.e. the City’s (i) past customs regarding its officers’ interactions 7 with anonymous citizens and (ii) officer training in de-escalation techniques) with actions the 8 City might take to rectify any such concerns. Plaintiff is not an elected official in Vallejo; he has 9 authority to investigate the City’s practices and customs as they were in prior years, and if the 10 resolution of this case results in the reforms he seeks, that is for the City to decide. But it does 11 not give plaintiff a license to insert himself into the City’s budgeting process, or inquire into the 12 Mayor’s thoughts on his case. These topics extend beyond the scope of the allegations and relief 13 sought, and so are irrelevant to the claims and relief sought and disproportionate to the needs of 14 this case. Fed. R. Civ. P. 26(b); Rivera, 364 F.3d at 1072; see also, e.g., Patridge v. United States, 15 923 F.2d 862 (9th Cir. 1991) (“Presented with only the bare assertion that the information . . . was 16 in the hands of the government, the district court did not abuse its discretion in declining to 17 authorize a fishing expedition . . . .”). 18 That is not to say plaintiff’s broad list of 17 topics is wholly irrelevant to his two Monell 19 theories. The court will not litigate plaintiff’s case for him, and instead instructs plaintiff to focus 20 his topics on the City’s alleged customs in 2018 (and similar time periods) concerning its officers’ 21 alleged customs of arresting, using force, and charging of citizens “who refuse to provide their 22 identification when requested by police.” The court also leaves open whether any further 23 deposition is required for plaintiff to investigate the City’s training and hiring practices regarding 24 its officers’ knowledge and understanding of de-escalation techniques. Plaintiff admits he was 25 able to depose Lt. Ramrakha in May of 2021 on the City’s training, and so it may be that plaintiff 26 has collected all the information he needs on his Monell theories as they actually exist in this 27 case. However, plaintiff also noted areas where Lt. Ramrakha did not answer questions 28 concerning its officers’ training, so counsel gets one more chance to get this right. 1 Finally, plaintiff is reminded that once the PMK topics are conferred over and solidified, it 2 is defendants’ responsibility to put forth one or more individuals who are knowledgeable of the 3 information sought. See, e.g., F.C.C. v. Mizuho Medy Co., 257 F.R.D. 679, 681 (S.D. Cal. 2009) 4 (“When a party receives a Rule 30(b)(6) deposition notice, it must designate a knowledgeable 5 person to fully prepare and unevasively answer questions about the designated subject matter.”) 6 (internal citations omitted). Thus, plaintiff does not get to choose who is defendants’ PMK, 7 absent a specific and targeted showing that such deponents have no knowledge of the information 8 sought. Plaintiff’s broad arguments about the Apex doctrine are insufficiently developed at this 9 time, and so any request to depose a higher-ranking member of the City is denied. Part and parcel 10 with this, defendants have a responsibility to make sure its PMK is fully prepared to “unevasively 11 answer questions about the designated subject matter.” Id.; see also Leland Stanford Junior Univ. 12 v. Tyco Int’l Ltd., 253 F.R.D. 524, 526 (C.D. Cal. 2008) (“With regard to choosing a deponent to 13 speak on behalf of the corporation, companies have a duty to make a conscientious, good-faith 14 effort to designate knowledgeable persons for Rule 30(b)(6) depositions and to prepare them to 15 fully and unevasively answer questions . . . .”). 16 c. Timeline and Procedure for Resolving the PMK Deposition Issue 17 Plaintiff’s counsel shall submit to defense counsel, by noon on January 8, 2024, a bullet- 18 point list of topics plaintiff seeks to explore in a PMK deposition. This shall consist of:
19 - If plaintiff proposes a topic that was already covered at the 2021 deposition of Lt. Ramrakha, but believes defense counsel obstructed the inquiry on a 20 particular topic because the state of the pleadings was uncertain at that time, 21 the bullet point for this topic shall list the page and line of the deposition and briefly state why Lt. Ramrakha’s answer was insufficient. 22 - Plaintiff may propose new topics that were not covered at the 2021 23 deposition—so long as they are narrowly tailored to the two Monell topics as construed by Judge Drozd and as found in Section II. b. above. 24
25 - Plaintiff shall list the cases he wishes to cite as part of the Monell claim and 26 briefly analogize why those cases are similar in fact pattern to plaintiff’s case, so that the PMK is prepared to address them. 27 - At no time shall plaintiff seek to depose a PMK on the topics barred by this 28 1 order. This includes matters related to the stipulated judgment between the California Attorney General and the City; the City’s budgeting process; the 2 Mayor’s perspective on this case; or any other topic outside the bounds of the Monell claim as construed by Judge Drozd. A violation of this prohibition 3 will result in severe sanctions. 4 5 Then, by January 15, 2024, the parties shall confer—in person or by phone—over the propriety of 6 these topics and cases. If this conferral results in the topics and cases being sufficiently defined, 7 so that defense counsel can produce an informed PMK, defendants shall produce its PMK(s) 8 within 30 days. If the parties cannot reach an agreement on any topics/cases, they may submit the 9 matter to the undersigned for resolution at an informal discovery conference. 10 III. Sanctions on Plaintiff’s Counsel 11 Turning to plaintiff’s counsel’s violations of the court’s local rules and previous orders, 12 the undersigned finds sanctions are warranted. In the November 15th order to show cause, the 13 undersigned noted the court’s authority under its inherent powers to sanction counsel, in order to 14 “discipline the members of the bar who appear before it.” See Mark Indus., Ltd. v. Sea Captain’s 15 Choice, Inc., 50 F.3d 730, 732 (9th Cir. 1995); see also Erickson v. Newmar Corp., 87 F.3d 298, 16 303 (9th Cir. 1996) (noting the court’s discretion under its inherent power to fashion an 17 appropriate sanction). The undersigned also noted Congress’s grant of authority to issue 18 sanctions against counsel who unreasonably and vexatiously multiply the proceedings in the 19 court. 28 U.S.C. § 1927 (“[A]ny attorney . . . who so multiplies the proceedings in any case 20 unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, 21 expenses, and attorneys’ fees reasonably incurred because of such conduct.”). As detailed in the 22 OSC, counsel violated multiple provisions of Local Rule 251 in filing the instant motions. 23 First, to raise a discovery dispute, Local Rule 251(a) only requires the filing of a brief 24 motion and notice of motion, specifically stating “no other documents need be filed at this time.” 25 Despite this fact, counsel for plaintiff filed over 1,000 pages of documents, exhibits, and other 26 papers alongside her motions. (See ECF Nos. 140, 141, 142, 144, 145.) Second, L.R. 251(b) 27 requires the parties confer prior to the filing of any discovery motion. The court reinforced this 28 1 requirement in its September 28th order, explicitly instructing the parties to follow the procedures 2 outlined in Local Rule 251. (ECF No. 139 at 6.) Despite this fact, counsel for plaintiff asserts in 3 her declaration that she did not confer with defense counsel on the scope of any rescheduled PMK 4 deposition prior to filing the motion to compel. (ECF No. 141-1 at ¶ 2.) Further, as detailed in 5 Section II above, counsels’ email exchanges between October 16th and 30th do not approach the 6 level of specificity required by law and the court’s prior orders. (See Section II, above.) The first 7 time plaintiff’s counsel appears to propose specific topics for another PMK deposition is in her 8 October 30th email and, hours later, the noticing of the deposition. (ECF No. 141-1 at 12-13; ECF 9 No. 143-1 at 9-11.) Proposing specific topics for a PMK deposition are the start—not the end— 10 of the kind of conferral required by the Federal and Local Rules and the undersigned’s prior 11 orders. See Fed. R. Civ. P. 30(b)(6) (noting that a party requesting a PMK deposition “must 12 describe with reasonable particularity the matters for examination “ and, “before or promptly after 13 the notice or subpoena is served, the serving party and the organization must confer in good faith 14 about the matters for examination”). Third, and relatedly, L.R. 251(a) requires the parties to 15 continue conferring after the filing of any motion, then file a joint statement within 14 days of the 16 hearing. Here, no conferral has occurred since she filed the motions on October 30th, and the 14- 17 day deadline passed without a joint statement from the parties. See Local Rule 251(c) (requiring 18 the moving party to file the joint statement, noting the joint statement shall include all points and 19 authorities, and ordering that “no separate briefing shall be filed.”). Fourth, despite the fact that 20 one of the disputes concerns the scope of a previous PMK deposition, the Local Rules are clear 21 that only “[p]ertinent portions of the deposition intended to become part of the official record 22 shall be submitted as exhibits in support of a motion or otherwise.” L.R. 133(j) (emphasis added) 23 (noting deposition transcripts are not to be filed through CM/ECF). Plaintiff’s counsel lodged Lt. 24 Ramrakha’s full deposition transcript three times on the court’s docket. (ECF Nos. 140-1; 141-1; 25 and 142-1.) 26 This is not the first time plaintiff’s counsel has been warned by the court to follow the 27 court’s Local Rules and orders. As detailed in the order to show cause, counsel has been 28 warned—repeatedly—by the undersigned and other judges of this court—that failure to follow 1 the court’s rules and orders is unacceptable for a member of the bar. (See ECF Nos. 63 2 (undersigned’s order noting counsel’s failure to meet a filing deadline and ordering conferral on 3 outstanding discovery matters prior to submitting lengthy motions to the court); 91 (noting 4 plaintiff’s failure to meet discovery deadlines as ordered by Judge Mueller); 92 (reminding 5 counsel of the admonition against ex parte contact with the court); 95 (resetting plaintiff’s motion 6 because counsel failed to follow the court’s local rules regarding timing of the motion); 126 7 (District Judge Drozd’z order noting counsel’s repeated failure to amend the complaint in 8 conformity with the law and court’s instructions); 134 (District Judge Drozd’z order noting 9 plaintiff’s attempt to amend was “contrary to the court’s prior order”). Despite these previous 10 attempts to accommodate plaintiff’s counsel, she appears unwilling to follow the court’s rules and 11 orders. Thus, monetary sanctions are appropriate under the court’s inherent powers. Mark 12 Indus., 50 F.3d at 732; Erickson, 87 F.3d at 303. 13 None of counsel’s assertions in her response to the order to show cause alleviate the 14 court’s concerns. (ECF No. 147.) Counsel asserts: (i) most of her cases are in state court (id. at 15 ¶ 2); (ii) she had previous negative encounters with defense counsel and makes litigation 16 decisions “knowing [her] history” with counsel (id. at ¶ 7-8); (iii) she previously submitted a joint 17 statement prior to the court’s September 28th order and so her obligations under Local Rule 251 18 were met (id. at ¶¶ 11, 25); (iv) defense counsel is the one wasting the court’s time by refusing to 19 provide discovery on the stipulated judgment, produce members of the City Council for 20 deposition, or allow the City Mayor to watch the bodycam footage associated with plaintiff’s case 21 (id. at ¶¶ 13, 22); (v) defense counsel was tardy in responding to plaintiff’s counsel’s emails (id. 22 at ¶ 18); (vi) Local Rule 230(j) can be used for motions to reopen discovery (id. at ¶ 21); 23 (vii) defense counsel refuses to settle this case (id. at ¶ 23).6 Counsel also asserts she did not 24 deliberately intend to break any rules or to ignore the court’s orders, and accepts she may be 25 sanctioned for failing to follow Local Rule 251. (Id. at ¶ 30-32.) However: (i) the rules and 26 counsel’s ethical obligations imputes a duty to be knowledgeable of the court’s rules and allows 27 6 The court addresses counsel’s arguments on the substantive aspects of discovery in Sections I 28 and II above. 1 for sanctions if counsel fails to comply (Local Rules 180(e) and 110); (ii) the undersigned 2 cautioned the parties to use the conferral process as a chance to reset regarding their personal 3 obligations—caution plaintiff’s counsel has disregarded in consistently referencing her history 4 with defense counsel; (iii) regardless of past submissions, the court explicitly instructed the 5 parties to follow Local Rule 251 to resolve the PMK issue; (iv) as discussed in Section II above, 6 defense counsel’s position is not a “waste of time”; it demonstrates defendants’ assertions of 7 nonfrivolous arguments; (v) the email chain indicates defense counsel promptly responded to 8 plaintiff’s counsel’s emails, so any lack of diligence falls on plaintiff’s counsel here; (vi) while 9 counsel is correct that Local Rule 230(j) can be used for motions for reconsideration, the court 10 explicitly instructed the parties utilize the procedures outlined in Local Rule 251; and (vii) refusal 11 to settle a case is not sanctionable conduct, as it is in defendants’ right to assess its liability and 12 press nonfrivolous arguments beneficial to the City’s position. The court appreciates counsel’s 13 admission that she failed to follow portions of Local Rule 251, and so finds sanctions appropriate 14 under the court’s inherent power for the conduct detailed above. B.K.B. v. Maui Police Dep't, 15 276 F.3d 1091, 1108 (9th Cir. 2002), as amended (Feb. 20, 2002) (noting that “counsel's reckless 16 and knowing conduct . . . was tantamount to bad faith and therefore sanctionable under the court's 17 inherent power”). 18 Further, it appears sanctions under 28 U.S.C. § 1927 are appropriate for counsel’s bad 19 faith multiplication of the proceedings in this court. Specifically, once the district judge found 20 plaintiff’s Monell claims cognizable, the parties were required to submit a joint statement (if they 21 disagreed) over the propriety of any needed PMK deposition. (ECF No. 134.) They did so, but 22 the undersigned found the PMK matter could not be resolved given the paucity of the briefing. 23 (ECF No. 139.) Thus, the court ordered the parties to confer over the scope of any needed PMK 24 deposition and submit a stipulation (if they agreed) or a targeted motion, following Local Rule 25 251, by October 30th. (Id.) Despite this last order, plaintiff’s counsel did not make efforts to 26 confer in any substantive manner until a week before the October 30th deadline—and arguably did 27 not present a fully-formed argument with the complete list of proposed PMK topics until hours 28 before filing the motion. (See ECF Nos. 141-1 at Ex. 1; 143-1.) Critically, counsel appears to 1 avoid listing these topics in her emails leading up to the October 30th email and inserts settlement 2 demands into the discussion. (ECF No. 141-1 at 16.) Further, counsel asserted in the OSC 3 response her belief that the Mayor should watch the 2018 bodycam footage so this case will 4 settle. (ECF No. 147.) This strongly indicates counsel intended to avoid discussion of the 5 substantive issue (‘define the PMK topics and confer over their propriety’) and use unwarranted 6 motion practice—contrary to the court’s orders to confer in good faith before filing any motion— 7 in order to unreasonably increase the cost of litigation for defendants and pressure them into 8 settlement. See Traylor v. U.S. Small Bus. Ass’n, 2023 WL 7297329, at *1 (9th Cir. Nov. 6, 9 2023) (finding no abuse of discretion where district court raised § 1927 sanctions sua sponte and 10 provided offending party an opportunity to respond); see also, e.g., Strojnik v. Inn at Jack London 11 Square, LLC, 2021 WL 11586330, at *3 (N.D. Cal. Apr. 19, 2021) (finding sanctions under 28 12 U.S.C. § 1927 appropriate where the vagueness in counsel’s filings “appears designed to pressure 13 defendants into settlement”). Thus, monetary sanctions under § 1927 are appropriate. 14 As to the form of sanctions, the court finds a monetary sanction on plaintiff’s counsel to 15 be sufficient at this time. Regarding sanctions under the court’s inherent powers, plaintiff’s 16 counsel is ordered to pay $750 to the Clerk of the Court. This amount is due within 30 days of 17 this order. As to sanctions under § 1927, the statute allows for the court to order a party to satisfy 18 “personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such 19 conduct.” These are to be paid in the form of attorneys’ fees to defendants. Defendants are 20 ordered to submit counsel’s attorney rates and hours expended in having to defend against this 21 motion (i.e. the hours expended between November 1, 2023 and November 28, 2023). 22 Defendants have seven days to comply (or may file a declaration that they do not intend to seek 23 such fees); the court will review the reasonableness of the hours and rates and issue its findings 24 shortly thereafter. Finally, plaintiff’s counsel is warned that continued failure to follow the 25 Federal Rules, the Local Rules, or the court’s orders may result in more severe sanctions, which 26 could include dismissal of claims or this case. 27 //// 28 1 ORDER 2 Accordingly, it is HEREBY ORDERED that: 3 1. Plaintiff's request for reconsideration (ECF No. 142) is DENIED; 4 2. Plaintiff's motion to compel the deposition of City Council Members, the City Mayor, 5 City Police Chief, City Attorney, or City Manager (ECF No. 141) is DENIED, and the 6 notices are QUASHED; 7 3. The parties shall confer over the scope of a narrow PMK deposition, as discussed 8 above; 9 4. Defendants shall submit its hours and rates to the court, for resolution of the court’s 10 Section 1927 sanctions, within 7 days of this order; and 11 5. Plaintiffs counsel is ordered to pay $750 to the Clerk of the Court within 30 days of 12 this order. 13 || Dated: November 30, 2023 i Aectl Aharon 15 KENDALL J. NE lake.1439 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 21