The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
FINDINGS AND RECOMMENDATION SUSTAINING OBJECTIONS TO THE DECLARATIONS OF TUPUVIAO AND THOMPSON (Doc. 42)
In opposition to Defendants' motion for summary judgment, Plaintiff submitted four declarations. (Doc. 41) The declarations purport to be the sworn statements of inmates L. Gallow, Brandy Estrada, P. Thomson and Sabrina Tupuvaio. On March 23, 2012, Defendants requested an evidentiary hearing because they questioned the authenticity of the declarations. (Doc. 42) Defendants based their attack, in part, on the apparent lack of similarity between the signatures on these documents and those on documents filed earlier. Id. at 2.
On March 27, 2012, the Court granted Defendants' request for the evidentiary hearing (Doc. 43), and it was scheduled for April 25, 2012. (Doc. 45) In the order setting the hearing, the Court permitted Plaintiff to withdraw any of the declarations and Defendants to withdraw any of their objections by April 18, 2012. Id. In addition, the Court required Plaintiff to provide further 2 information about witness L. Gallow who was not found in CDCR custody. (Doc. 44) 3
In response, Plaintiff provided Ms. Gallow's full name and address in Sacramento. (Doc. 51) At the onset of the evidentiary hearing, Defendants reported that the address provided was not correct.
However, they located the correct address but were unable to serve a subpoena to Ms. Gallow in 6 advance of the hearing. Thus, Defendants withdrew their objection to the authenticity of this 7 declaration. Moreover, for unknown reasons, Defendants withdrew their objection to the authenticity 8 of the Estrada declaration. (Doc. 53) 9
On April 25, 2012, the Court conducted the evidentiary hearing related to the authenticity of the declarations attributed to inmates Tupuvaio and Thompson. (Doc. 55) In addition, it heard argument of counsel and Plaintiff related to the relief sought.
II. The evidentiary hearing
At the hearing, both inmates, Tupuvaio and Thompson, denied having ever seen the
declarations before they learned of the hearing, denied they had signed the declarations and denied they had authorized anyone to sign such a declaration on their behalf. Thompson testified that she was not approached by Brandy Estrada to sign a declaration and is not housed on the same yard as Estrada. Tupuvaio testified that she is housed on the same yard as Brandy Estrada but is not housed in the same unit. Based upon this testimony, counsel argued and Plaintiff agreed, that the declarations were not authentic.
On the other hand, Plaintiff testified that she had no explanation for the falsity of the documents. Plaintiff reported that she was housed at a different facility than where the witnesses and Brandy Estrada, were housed. Therefore, she enlisted the help of Brandy Estrada to obtain the declarations. She reported that she typed the declaration for Tupuvaio and provided it to Brandy Estrada via the mail. Also, Plaintiff provided a caption page and a statement attributed to Thompson for Thompson's use in writing out her own declaration. Plaintiff reported that Ms. Estrada-who is a long-time friend of Plaintiff and former romantic partner-agreed to approach both witnesses and obtain the executed declarations.
Plaintiff testified that when she received the declarations from Ms. Estrada by return mail, she had no reason to doubt they were authentic. She admitted that she was aware that about five years ago 3
Estrada and Tupuvaio had been convicted of mutual combat after an incident in which Tupuvaio 4 claimed that Estrada had stabbed her. However, Plaintiff claimed that she had forgotten about that 5 incident until after Tupuvaio testified at the hearing. Thus, she reported, that this past incident did not 6 alert her to the fact that Estrada would not have been able to obtain Tupuvaio's signature. 7
Though she did not verify with Ms. Estrada that the declarations were authentic, Plaintiff testified that she had known Ms. Estrada for years and it did not occur to her that Ms. Estrada would 9 falsify them. She denied that she questioned their authenticity before filing them and denied that the writing on the Thompson declaration appeared to be that of Ms. Estrada. She expressed ...