The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 PERCY HILL also known as Case No.: 18cv2470-CAB-MDD
PERCY EDWIN STOCKTON,
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ORDER GRANTING IN PART
Plaintiff,
13 DEFENDANTS' MOTION FOR
v. RULE 37 SANCTIONS AGAINST
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PLAINTIFF
ALPINE SHERIFF
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DEPARTMENT, et al.,
16 Defendants. [ECF No. 22]
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18 On January 30, 2019, Plaintiff Percy Hill (“Plaintiff”), proceeding pro se,
19 filed the operative Second Amended Complaint against Defendants County of
20 San Diego, Eric Garcia, Cathy Allister, Freddy Herrero, Matthew
21 Addenbrooke, and Officer Balinger (collectively, “Defendants”). (ECF No. 8,
22 hereinafter “SAC”). On September 9, 2019, Defendants County of San Diego,
23 Eric Garcia, Cathy Allister, Freddy Herrero, and Matthew Addenbrooke
24 (collectively, “moving Defendants”)1 filed the instant motion for sanctions
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1 against Plaintiff pursuant to Federal Rule of Civil Procedure 37. (ECF No.
2 22, hereinafter “Mtn”). Plaintiff filed an untimely opposition on October 11,
3 2019. (ECF No. 30, hereinafter “Oppo.”). The matter was set for hearing on
4 October 21, 2019 and both parties appeared. (ECF No. 31). For the reasons
5 stated herein, the Court GRANTS IN PART moving Defendants’ motion.
6 I. RELEVANT BACKGROUND
7 On March 4, 2019, the Court ordered the parties to “make the initial
8 disclosures required by Fed.R.Civ.P. 26(a)” on or before April 17, 2019. (ECF
9 No. 12). The Court held an Early Neutral Evaluation (“ENE”) and Case
10 Management Conference (“CMC”) on April 24, 2019. (See ECF No. 13).
11 On August 1, 2019, the parties filed a joint motion for determination of
12 a discovery dispute. (ECF No. 20). Moving Defendants requested Plaintiff be
13 compelled to produce his initial disclosures that were due pursuant to the
14 Court’s order on or before April 24, 2019. (Id. at 1-2). Plaintiff explained he
15 thought his motion for extension of time filed May 13, 2019, which was
16 granted, extended the deadline for disclosures. (Id. at 2-3). However,
17 Plaintiff’s motion for an extension of time did not seek an extension of the
18 initial disclosures. (See ECF No. 15). Accordingly, on August 2, 2019, the
19 Court ordered Plaintiff to serve his initial disclosures on moving Defendants
20 no later than August 12, 2019. (ECF No. 21). The Court further noted that
21 Plaintiff must properly serve all discovery requests upon Defendants in
22 accordance with the applicable rules. (Id. at 2).
23 On September 9, 2019, moving Defendants filed the instant motion
24 requesting the Court impose sanctions upon Plaintiff for failing to serve his
25 initial disclosures as ordered by the Court on two occasions. (Mtn. at 2). The
26 Court ordered Plaintiff to file an opposition to Defendants’ motion, if any, by
1 the matter for hearing for October 21, 2019 and noted that Plaintiff had not
2 yet filed an opposition. (ECF No. 29). On October 11, 2019, Plaintiff filed a
3 response in opposition to Defendants’ motion. (Oppo.).
4 II. LEGAL STANDARD
5 Federal Rule of Civil Procedure 26(a)(1) requires a party “without
6 awaiting a discovery request,” to provide the other parties, as relevant here:
7 (i) the name and, if known, the address and telephone number of
each individual likely to have discoverable information—along with
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the subjects of that information—that the disclosing party may use
9 to support its claims or defenses, unless the use would be solely for
impeachment;
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(ii) a copy—or a description by category and location—of all
11 documents, electronically stored information, and tangible things
that the disclosing party has in its possession, custody, or control
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and may use to support its claims or defenses, unless the use would
13 be solely for impeachment; [and]
(iii) a computation of each category of damages claimed by the
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disclosing party—who must also make available for inspection and
15 copying as under Rule 34 the documents or other evidentiary
material, unless privileged or protected from disclosure, on which
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each computation is based, including materials bearing on the
17 nature and extent of injuries suffered[.]
18 Fed. R. Civ. P. 26(a)(1)(A)(i)-(iii).
19 Federal Rule of Civil Procedure 37(a)(3)(A) permits a party to seek
20 sanctions when the other party fails to provide Rule 26(a) initial disclosures.
21 Further:
22 [if] a party fails to provide information . . . as required by Rule 26(a)
. . . the party is not allowed to use that information . . . to supply
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evidence on a motion, at a hearing, or at a trial, unless the failure
24 was substantially justified or is harmless. In addition to or instead
of this sanction, the court, on motion and after giving an
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opportunity to be heard . . . may order payment of the reasonable
26 expenses, including attorney’s fees, caused by the failure.
1 III. ANALYSIS
2 Moving Defendants request the Court sanction Plaintiff for his failure
3 to serve his initial disclosures by imposing terminating sanctions, excluding
4 evidence not disclosed, or holding Plaintiff in contempt. (Mtn. at 2-5).
5 Additionally, they request Plaintiff be required to pay their reasonable
6 attorneys’ fees associated with this motion. (Id. at 6). Plaintiff argues he was
7 not required to serve his initial disclosures because he is only relying on the
8 evidence he filed with his complaint. (Oppo. at 2). Plaintiff also attached
9 motions requesting discovery. (Id. at 3-6).
10 A. Initial Disclosures
11 Based on the factual background of this dispute, it is clear that Plaintiff
12 failed to comply with the plain language of two of the Court’s orders directing
13 him to provide initial disclosures to moving Defendants. Plaintiff argues he
14 was not required to serve initial disclosures upon moving Defendants because
15 he attached all the evidence he intends to rely upon to his complaint. (Oppo.
16 at 2). However, referencing the complaint is insufficient under Rule 26
17 because the complaint contains only allegations, whereas discovery is meant
18 to provide verified factual information for use at trial or to support or oppose
19 a motion. See Davis v. Molina, No. 1:14-cv-01554 LJO DLB PC, 2016 U.S.
20 Dist. LEXIS 53031, at *6 (E.D. Cal. Apr. 19, 2016) (finding a plaintiff was not
21 substantially justified in failing to provide initial disclosures to defendants
22 and instead referring defendants to his initial pleadings and their
23 attachments); Holak v. Kmart Corp., No. 1:12-cv-00304 AWI MJS, 2014 U.S.
24 Dist. LEXIS 78472, at *47-18 (E.D. Cal. June 5, 2014) (“Plaintiff’s reference
25 to [‘]putative class members, as alleged in the operative complaint’ is
26 insufficient disclosure under Rule 26 . . . .”); Hash v. Cate, No. C 08-03729
1 (“Plaintiff may not refer to his complaint, because statements in a complaint
2 are just allegations . . . .”). As a result, Plaintiff was not substantially
3 justified for his non-disclosure.
4 Plaintiff further fails to meet his burden of showing that his failure to
5 disclose was harmless, except with respect to witnesses listed in an affidavit
6 attached to his original complaint. Plaintiff attached as Exhibit A to his
7 original complaint an affidavit of “Paul Littech, Rick Freeman, Cheryl
8 Bausch, Jim Browning, Michelle Johnson, and Clifford Rhodes” relating to
9 the incident giving rise to Plaintiff’s claims. (ECF No. 1-2). This affidavit
10 also mentions a Linda Montgomery, who is also listed in the Second Amended
11 Complaint. (Id. at 44; ECF No. 8 at 2). At the hearing, the Court noted that
12 had Plaintiff disclosed these same names to moving Defendants, but did not
13 have their addresses or contact information, moving Defendants would be in
14 the same position they are in today. The Court also noted that many of these
15 persons were interviewed by moving Defendants, which suggests they have
16 last known addresses of these persons. For these reasons, the Court finds
17 that Plaintiff’s non-disclosure of “individual[s] likely to have discoverable
18 information” pursuant to Rule 26(a)(1)(A)(i) is harmless.
19 However, Plaintiff failed to provide Defendant with any documents, or
20 list describing documents, which he may use to support his allegation in the
21 complaint of any computation of damages. Moving Defendants cannot be
22 expected to guess the documents Plaintiff may use to prove his allegations.
23 Merely referencing the complaint in this instance undermines the very
24 purpose of providing initial disclosures. Moreover, the Second Amended
25 Complaint is completely devoid of any specific computation of damages and
26 moving Defendants have no way of guessing what Plaintiff’s computation of
1 expended by moving Defendants and the Court addressing this issue could
2 have easily been avoided if Plaintiff simply provided moving Defendants with
3 his initial disclosures as required by two Court orders. Accordingly,
4 Plaintiff’s non-disclosure of documents or a list describing documents he may
5 use to support his claims and a computation of each category of damages
6 pursuant to Rule 26(a)(1)(A)(ii)-(iii) is not harmless. Therefore, Plaintiff “is
7 not allowed to use that information . . . to supply evidence on a motion, at a
8 hearing, or at a trial.” Fed. R. Civ. P. 37(c)(1)(A).
9 B. Attorneys’ Fees
10 Moving Defendants also request sanctions under Rule 37 in the amount
11 of $1,5182 for counsels’ time spent on tasks related to the instant motion.
12 (Mtn. at 6). Plaintiff did not respond to this request in his opposition. (See
13 Oppo.). At the hearing, Plaintiff voiced his disagreement with the imposition
14 of monetary sanctions. Thus, Plaintiff had two opportunities to be heard
15 regarding moving Defendants’ request for sanctions. However, as indicated
16 previously, Plaintiff provided no justification for failing to make the Rule
17 26(a)(1) initial disclosures, despite being ordered to serve his initial
18 disclosures on two occasions. As a result, the Court finds that moving
19 Defendants are entitled to sanctions for the fees incurred by bringing the
20 instant motion.
21 Senior Deputy County Counsel Sylvia S. Aceves, avers that County
22 Counsel expended 6 hours of attorney time in drafting this motion at a cost of
23 $1,518. (ECF No. 22-2 at 2). She further declares that the billing rate is
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26 2 Moving Defendants’ initially requested $2,277 because they anticipated incurring 3
hours in preparing a reply brief. (See Mtn. at 6). However, moving Defendants did not file
1 $253 per hour. (Id.). The Court finds that the $1,518 in fees described in Ms.
2 Aceves declaration is reasonable and that it is appropriate to order Plaintiff
3 to pay moving Defendants the amount of $1,518 for his refusal to comply with
4 the Federal Rules of Civil Procedure, and two Court orders. See Yeti by
5 Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001)
6 (“[W]e give particularly wide latitude to the district court’s discretion to issue
7 sanctions under Rule 37(c)(1).”).
8 C. Plaintiff’s Discovery Requests
9 In opposition to moving Defendants’ motion, Plaintiff also seeks “the
10 body worn camera of police dog Edo” and a copy of the “body worn camera
11 footage of the entire incident” with audio. (Oppo. at 3-6). He also asks that
12 “no evidence in this case . . . be disallowed, and that all documents and body
13 worn camera evidence . . . be used as evidence and not barred from being
14 used as said evidence.” (Id. at 5). As indicated previously and as explained
15 at the hearing, Plaintiff must properly serve all discovery requests upon
16 Defendants in accordance with the applicable rules. (See ECF No. 21 at 2).
17 As such, the Court Court DENIES Plaintiff’s requests for discovery. (See
18 Oppo. at 3-6).
19 III. CONCLUSION
20 Based on the foregoing, the Court GRANTS IN PART moving
21 Defendants’ motion for sanctions as follows:
22 1. Plaintiff is precluded from using witnesses other than Paul
23 Littech, Rick Freeman, Cheryl Bausch, Jim Browning, Michelle Johnson, and
24 Clifford Rhodes and Linda Montgomery to supply evidence on a motion, at a
25 hearing, or at a trial, unless the use would be solely for impeachment
26 2. Plaintiff is precluded from using documents, electronically stored
1 ||support his claims or defenses, to supply evidence on a motion, at a hearing,
9 |/or at a trial, unless the use would be solely for impeachment;
3 3. Plaintiff precluded from using a computation of each category of
4 ||damages claimed to supply evidence on a motion, at a hearing, or at a trial;
5 ||and
6 4. Plaintiff must pay the County of San Diego $1,518.00 no later
7 ||than November 25, 2019.
8 Any party may serve and file objections to this Order on or before
9 ||November 8, 2019.2
10 IT IS SO ORDERED.
11 Dated: October 22, 2019 .
4 Mitel © fou
Hon. Mitchell D. Dembin
13 United States Magistrate Judge
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3 Federal Rule of Civil Procedure 72(a) permits a party to file objections “to the order
26 || within 14 days after being served with a copy.” Fed. R. Civ. P. 72(a). Because Plaintiff is
97 pro se, the Court has included 3 days for mailing. As such, any opposition by Plaintiff
must be filed and on the docket by November 8, 2019.