The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER and FINDINGS & RECOMMENDATIONS
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 do about 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. *fn1
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, "[d]efendants demonstrate, without a contrary factual assertion by plaintiff, that they have rescheduled plaintiff's deposition multiple times, but that after agreeing to a second rescheduling they warned plaintiff that they would not agree to a third rescheduling. Plaintiff attempted to unilaterally reschedule a third time and then failed to appear at her January 24, 2012 deposition. She also failed to produce documents by January 24, 2012, after being given multiple extensions of time." (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 documents and 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 motion*fn2 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.
I. Available Sanctions and Standards
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:
1. Fed. R. Civ. P. Rule 11
2. Inherent authority of the court*fn3
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 penalty that 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) (affirming standard and upholding sanctions in egregious circumstances).*fn4 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:
(1) the public's interest in expeditious resolution of litigation;
(2) the court's need to manage its docket;
(3) the risk of prejudice to the other party;
(4) the public policy favoring disposition of cases on their merits; and
(5) the availability of less drastic sanctions.
Wanderer v. Johnston, 910 F.2d 652 (9th Cir. 1990) (default judgment for defendants' failure to comply with discovery); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir.1987).
Being obstructive in discovery may also be sanctionable under 28 U.S.C. 1927. Section 1927 permits recovery of excess costs, including attorney's fees, against an attorney who unreasonably and vexatiously multiplies proceedings. A § 1927 award requires a finding that the attorney to be assessed not only multiplied the proceedings but did so recklessly or in bad faith.
Goehring v. Brophy, 94 F.3d 1294, 1306 (9th Cir.1996); Kanarek v. Hatch, 827 F.2d 1389, 1391 (9th Cir.1987). Section 1927 sanctions also may be imposed against pro se litigants. Wages v. I.R.S., 915 F.2d 1230, 1235-36(9th Cir. 1990). The standard is subjective bad faith, and the court need not find objectively unreasonable behavior as well. Salstrom v. Citicorp Credit Services, Inc., 74 F.3d 183, 184 (9th Cir.1996).
The undersigned now turns to the legal standards which guide this court's determination, if, in fact, perjury is found. There is no specific rule which discusses sanctions for perjury. Although Fed. R. Civ. P. 26 (g)(3) discusses sanctions for false certifications as the accuracy of discovery responses, a "certification" is not at issue here. Therefore, the sanctions available to the undersigned, if dismissal is warranted by the facts, stems from the inherent power of the court. See Chambers v. NASCO, Inc., 501 U.S. 32, 111 S.Ct. 2123 (1991). See also Fink v. Gomez, 239 F.3d 989, 992-993 (9th Cir. 2001). The inherent power of the court to award sanctions is "both broader and narrower than other means of imposing sanctions." Id. at 46, 111 S.Ct. 2123. On the one hand, the inherent power "extends to a full range of litigation abuses." On the other, the litigant must have "engaged in bad faith or willful disobedience of a court's order." Id. at 46-47, 111 S.Ct. 2123.
Perjury is defined in federal criminal law as "false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory." United States v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111 (1993) (summarizing the elements of 18 U.S.C. § 1621). Clearly, committing perjury is acting in "bad faith." "Dismissal is an appropriate sanction for falsifying a deposition." .... [T]he court's inherent powers can be called upon to redress such mendacity." Combs v. Rockwell Inter. Corp., 927 F.2d 486, 488 (9th Cir. 1991). "Falsifying evidence is grounds for the imposition of the sanction of dismissal." Id. There need be no look at the merits of a lawsuit if material, substantial perjury is found. Id at 489. As stated in Valley Engineers Inc. v Electric Engineering Co., 158 F.3d at 1058: "There is no point to a lawsuit, if it merely applies law to lies. True facts must be the foundation for any just result." While perjury should not be confused with inconsistencies in a party's deposition and trial testimony which may "provide fertile ground for vigorous impeachment but do not support perjury findings," Montano v. City of Chicago, 535 F.3d 558, 564 (7th Cir. 2008), when a party falsely testifies to a fact material to the substance of a litigation, such is anathema to the function of the courts. Perjury is much more than simply a "gotcha," harmful in effect only for the reason that one got caught. Litigation is not a game in which perjury warrants a five yard penalty for a minor untruth, fifteen yards if the perjury was really serious. Rather, perjury on any material fact strikes at the core of the judicial function and warrants a dismissal of one's right to participate at all in the truth seeking process. If one can be punished for perjury with up to five years imprisonment, 18 U.S.C. § 1621, it should not seem out of place that a civil action might be dismissed for the same conduct.*fn5
Nevertheless, in the context of setting aside or modifying judgments, and without citation to the above Ninth Circuit authority, other Ninth Circuit cases hold that "'perjury by a party or witness, by itself, is not normally fraud on the court.'" United States v. Estate of Stonehill, 660 F.3d 415, 444 (9th Cir. 2011) citing In re Levander, 180 F.3d 1114, 1119 (9th Cir. 1999). "In order to show fraud on the court, ....[a party] must show more than perjury or non-disclosure of evidence, unless that perjury or non-disclosure was so fundamental that it undermined the workings of the adversary process itself." Stonehill, 660 F.3d at 445. In reconciling the two lines of authority, it appears that in the setting aside or reopening judgments context, perjury will not be grounds for upsetting a judgment when the fact of the untruth was known and could have been challenged during the proceeding itself. Levander, 180 F.3d at 1120. Here, defendants are challenging the asserted untruth in the proceeding before it has become final. Thus, the Combs line of authority is more appropriately in play for defendants' motion. In any event, as set forth below, there is "more."
Prior to the evidentiary hearing, the parties filed various motions. Plaintiff has filed documents entitled "Judicial Notice," (dkt. no. 52), "Motion to Reconsider" (dkt. no. 57), "Motion of Injunction," (dkt. no. 60), and "Motion to Amend." (dkt. no. 61). These filings attempt for the most part to object to the evidentiary hearing and defendants' motion for terminating sanctions, and as such are belated back door attempts to file additional oppositions or appeals. To the extent that the motions concern the merits of the case, they are not relevant to the issues framed for the evidentiary hearing. Therefore, they will not be considered.
Defendants' motion in limine, (dkt. no. 55), seeks to exclude all evidence at the evidentiary hearing which does not directly relate to the issue of whether plaintiff did or did not take videos with her cell phone on the date at issue in her SAC. As this court's May 17, 2012 order clearly delineated the issue for evidentiary hearing, defendants' motion is denied as unnecessary.
III. Request for Judicial Notice*fn6
Defendants request that the court take judicial notice of all filings in this action, documents downloaded from the California Department of Real Estate website relating to the license granted by the Department of Real Estate to Penny Arnold, documents received from the Department of Real Estate and certification of them, and a printout from the California State Bar website indicating that plaintiff is not an attorney licensed in California.
Defendants' requests for judicial notice are granted pursuant to Fed. R. Evid. 201, as they do not require the acceptance of facts "subject to reasonable dispute" and are capable of immediate and accurate determination by resort to a source whose accuracy cannot be reasonably questioned. See In re Tyrone F. Conner Corp., Inc., 140 B.R. 771, 781-82 (E.D. Cal. 1992); Fed. R. Evid. 201(b); Cal. ex. rel. RoNo, L.L.C. v. Altus Fin. S.A., 344 F.3d 920, 931 n. 8 (9th Cir. 2003). The court also takes notice of its own ...