Arnold v. Cnty. of El Dorado
| Decision Date | 08 August 2012 |
| Docket Number | No. 2:10-cv-3119 KJM GGH PS,2:10-cv-3119 KJM GGH PS |
| Parties | PENNY ARNOLD, Plaintiff, v. COUNTY OF EL DORADO, et al., Defendants. |
| Court | U.S. District Court — Eastern District of California |
Previously pending on this court's calendar for July 2, 2012, was an evidentiary hearing in connection with defendants' motion for terminating and monetary sanctions, filed April 2, 2012. Plaintiff filed an opposition on April 18, 2012. Andrew Caulfield appeared for defendants. Plaintiff appeared in pro se. Having heard testimony and argument, admitted evidence, and reviewed the papers in support of and in opposition to the motion, the court now issues the following order and findings and recommendations, recommending that defendants' motion be granted.
The motion here involves, in part, plaintiff's needless obstreperousness in discovery, but more importantly, additionally involves an allegation that plaintiff committed perjury during her deposition pertinent to a material fact in this litigation. For the reasons expressed below, there is no doubt that plaintiff did perjure herself; the issue becomes what to doabout it. Courts have struggled with the issue, but the better reasoned opinions permit a dismissal of the case of the party committing perjury. Given the entire backdrop of the discovery problems herein, the case should be dismissed. 1
This action was brought against El Dorado County and two deputy sheriffs, Ken Brown and Scott Crawford, in regard to their treatment of plaintiff during two visits to the El Dorado County courthouse. Before the court is the second amended complaint, filed September 26, 2011. Plaintiff alleges that these deputies "wrongfully detained [her], utilized excessive physical violence and force upon her in a public place, battered her, permanently injured her, and arrested her in violation of her rights as guaranteed her by the United States Constitution, federal civil rights laws, and California law." (SAC ¶ 1.)
Allegations pertinent to the evidentiary hearing and defendants' motion for terminating sanctions are that on July 16, 2010, defendant officers attacked plaintiff on the orders of Judge Waggoner for using her cell phone to videotape people in the lobby area. (Id. at ¶¶ 6, 10.) The SAC states in part:
8. Knowing through her appearance at prior dependency hearings that it can take anywhere from minutes to many hours before her case is called, Plaintiff passed her time in the lobby playing a game on her cell phone and sending text messages. She did not have her glasses that morning and, as a result, Plaintiff had difficulty seeing the buttons on her phone clearly and often had to hit the same buttons over and over on the phone. Plaintiff, who had been involved in the juvenile dependency hearing process concerning her son since 2008, had utilized her cell phone in substantially the same manner on numerous prior occasions without incident. Plaintiff also witnessed this same type of cell phone usage by other courtroom patrons, including County employees, on numerous prior occasions.
(Id. at ¶ 8.) Plaintiff emphatically states that on July 16, 2010, "[p]laintiff was absolutely not using her cell phone to videotape anything at this time. (Id. at ¶ 9.) (emphasis in original.) Of course, whether plaintiff was using her cell phone to videotape was a material fact in this litigation in that it precipitated the entire series of events culminating in the excessive force allegations. Whether plaintiff had committed any misconduct, while not dispositive of the excessive force allegations, was important in placing the defendants' actions in an appropriate context. Such a context might well make the difference between a punitive damages verdict and one without, assuming that a jury were to find the facts generally in plaintiff's favor.
Findings and Recommendations filed November 23, 2011, construed the SAC as containing claims for excessive force only, and recommended that an answer to the SAC be filed within fourteen days of an order adopting those findings and recommendations. (Dkt. no. 24.) Those findings were adopted after the evidentiary hearing. Nevertheless, the parties have previously engaged in discovery which led to the instant motion for terminating sanctions.
The first indication of plaintiff's recalcitrance in discovery was presented in defendants' motion to compel, filed in January, 2012. As summarized in the order filed February 23, 2012, (Dkt. no. 29 at 2.) The order required plaintiff's deposition to occur on February 21, 2012, and that plaintiff produce remaining documents and discovery responses at that deposition. Although defendants had requested terminating sanctions at that time, the court issued only monetary sanctions in the amount of $2,220 for plaintiff's unjustified behavior, to be deferred pending a plaintiff verdict in the case, based on her representation of poverty. Plaintiff was warned, however, "that failure to appear at this deposition and produce requested documentsand responses will result in further sanctions, including the dismissal of her case and the possibility of contempt charges." (Id. at 5.)
On April 2, 2012, defendants filed the instant motion, claiming that plaintiff violated the previous order in failing to serve written discovery responses, and because she committed perjury during her deposition, as well as obstructed her deposition by being knowingly false/evasive in her responses. The parties were ordered to submit evidence concerning the motion2 and on May 17, 2012, after reviewing the submitted evidence, the undersigned found, in adjudicating one part of the motion, that plaintiff had not misrepresented her financial status in court.
Defendants' claims of perjury regarding plaintiff's deposition testimony concerning the alleged videotaping at the superior court was another matter altogether. The evidence submitted indicated that plaintiff's denial of videotaping was false. Therefore, an evidentiary hearing on this issue was ordered. The parties were directed to present "testimony and/or evidence to support their position that plaintiff did or did not take videos with her cell phone on the date at issue in her second amended complaint." (Dkt. no. 47 at 4.) An evidentiary hearing was held on July 2, 2012.
In addition, defendants have re-submitted other evidence/examples of plaintiff's refusal to comply with discovery orders of the court and numerous other examples of false statements in the deposition and/or evasive answers.
The court must first determine what sanctions are available for this situation which might justify a dismissal, and then define the standards for issuance of such sanctions.Defendants moved for sanctions, including terminating sanctions, on four grounds:
2. Inherent authority of the court3
4. 28 U.S.C. § 1927
Rule 11 is not available as a means by which to grant the motion. Insofar as false discovery certifications/disclosures are at issue, Rule 11 does not apply to such. See Rule 11(d). Moreover, and more importantly, insofar as false statements in the complaint are concerned, to which Rule 11 could apply, defendants have made no showing that they complied with the mandatory notice procedures set forth in the Rule. See Rule 11(c)(2). As such, the Rule cannot stand as a basis for terminating sanctions because of alleged false statements in the amended complaint. The remaining three grounds are potentially available.
Rule 37 authorizes "a wide range of sanctions" for a party's failure to comply with discovery rules or court orders enforcing them. Wyle v. R.J. Reynolds Industries, Inc., 709 F.2d 585, 589 (9th Cir. 1983). Penalizing a party "for dilatory conduct during discovery proceedings" is discretionary. Bollow v. Federal Reserve Bank of San Francisco, 650 F.2d 1093, 1102 (9th Cir. 1981) (citing Fed. R. Civ. P. 37(a)(4)). Rule 37 provides remedies for obstructiveness in discovery ranging from milder monetary sanctions to preclusion of evidence to outright dismissal.
Precluding evidence for discovery misconduct so that the recalcitrant party cannot support defenses is comparable to entering dismissal, which "represent[s] the most severe penaltythat can be imposed." U.S. v. Kahaluu Const., 857 F.2d 600, 603 (9th Cir. 1988); accord, Valley Engineers v. Electric Engineering Co., 158 F.3d 1051 (9th Cir. 1998). Accordingly, such sanctions are authorized only in "extreme circumstances" for violations "due to willfulness, bad faith, or fault of that party." Kahaluu Const., 857 F.2d at 603; see also Commodity Futures Trading Com'n v. Noble Metals Intern., Inc., 67 F.3d 766,770 (9th Cir. 1995) ().4 Bad faith does not require actual ill will; substantial and prejudicial obduracy may constitute bad faith. B.K.B. v. Maui Police Dept., 276 F.3d 1091, 1108 (9th Cir. 2002).
Five relevant factors also determine whether severe sanctions are appropriate:
Wanderer v. Johnston, 910 F.2d 652 (9th Cir. 1990) (); Malone v. U.S. Postal...
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