The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
UNDER FED. R. CIV. P. 11; AND ORDER DISMISSING COUNTERCLAIM ORDER IMPOSING SANCTIONS
Nidia Vargas, through counsel, filed the complaint initiating this action on February 3, 2011. Citing the Individuals with Disabilities Act, she appealed an administrative decision regarding the education afforded her minor son N.V. by Defendant Encinitas Union School District. Along with the complaint, Ms. Vargas filed a motion for appointment as guardian ad litem, which was granted. On June 21, 2011, she filed her amended complaint. Then on July 1, her attorneys Robin Champlin and Brian Sciacca moved to withdraw, a motion she filed written opposition to. The motion to withdraw was short on detail, so the Court directed Ms. Vargas and her counsel to appear at a hearing on September 12, 2011. The District was not required to appear at that hearing, and did not do so.*fn1
At that hearing, it became clear the motion was pleaded without much specificity because a good deal of the information was privileged and confidential, and counsel were understandably sensitive to this. But by opposing the motion to withdraw, by supporting that opposition with summaries of attorney-client communications, and by freely discussing these matters in open court, Ms. Vargas has waived any privilege or claim to confidentiality. See Gomez v. Vernon, 255 F.3d 1118, 1131 (9th Cir. 2001) (noting that a client may waive attorney-client privilege by placing privileged matters in controversy or by disclosing privileged communications).
Ms. Vargas' counsel had represented her at the administrative level, where they obtained good results, but argued they could not in good faith continue to represent her at the district court level.*fn2 The reason, they said, was that she had (without their involvement) entered into a settlement agreement with the District regarding N.V.'s education, and she could not in good faith maintain this appeal. Ms. Vargas' position was that they were contractually obligated to continue to represent her and to litigate this action to finality regardless of any settlement she might have entered into. Ms. Vargas presented the settlement agreement, and the Court noted that in it she had promised not to file a request for a due process hearing until the end of 2011, and that by filing the complaint and maintaining her claims, it appeared she was not litigating in good faith. (Tr. (Docket no. 26-7) at 8:20--10:2.) Ms. Vargas then explained that she thought the District had failed to comply with the terms of the settlement agreement, and that this relieved her of honoring her promise to the District not to file an appeal in federal court.
Ms. Vargas' counsel responded that she had never told them anything about the District failing to comply with the settlement agreement; that they had no knowledge of whether her characterization was correct; and that she had separately agreed to an IEP (individualized education program) for her son, but because she had never shown it to them they could not verify what it required. (Tr. at 14:11--19.) But they did point out that procedures were in place for enforcing the settlement agreement. These included proceeding through the California Department of Education, or filing an action in state court to enforce the settlement agreement-but not filing an appeal in federal court. (Id. at 14:21--15:1.)
After considering the settlement agreement Ms. Vargas signed, and hearing her arguments, the Court noted that Ms. Vargas had apparently waived appeal, and that her attorneys were reasonably trying to comply with their professional and ethical obligations by not advancing frivolous litigation. (Tr. at 23:19--24:7; 25:16--26:8.) The Court noted that the question of dismissal was not before it at the time, but noted that the District would probably move to dismiss based on the settlement agreement. (Id. at 25:16--23, 26:6--7.) The Court therefore permitted Ms. Vargas' counsel to withdraw, and Ms. Vargas proceeded pro se from that point on.
Defendant has pointed out that three times before this hearing, it had requested that Ms. Vargas withdraw her complaint and that, because she continued refusing, her counsel took the unusual step of withdrawing. (Mot. at 10:23--11:5.) It points out that it asked her a fourth time after the hearing, and intended to ask her again at a scheduled Early Neutral Evaluation (ENE) conference (at which she did not appear). (Id. at 11:19--25). Defendant also points to misrepresentations Ms. Vargas made at the hearing, about the settlement agreement not being final and being subject to continuing negotiations, (Tr. at 11:1--2), a statement the Court later, after reading the agreement, made clear was wrong. (Tr. at 25:2--19.)
On November 14, 2011, the parties were to appear for an ENE conference
before Magistrate Judge Jan Adler. (See Docket no. 18 (order
scheduling ENE conference).) Ms. Vargas did not appear for that
conference and could not be reached by phone. (See Docket no. 19.) On
November 22, the District moved to dismiss. On December 13, 2011, the
District moved for sanctions, both for Ms. Vargas' failure to appear
at the ENE conference, and for litigating in bad faith.*fn3
The portion of the sanctions motion pertaining to the ENE was
referred to Judge Adler, and the Court set the other issues in the
motion for sanctions, as well as the motion to dismiss, for hearing on
January 30, 2012.
Ms. Vargas sought an extension of time to respond to the motion to dismiss and the motion for sanctions, which the Court granted, ordering her to file her opposition no later than February 1. The parties then jointly moved to extend the hearing date and briefing dates a second time, and the hearing was rescheduled for March 26. Ms. Vargas filed an opposition to the motion for sanctions, but didn't file any opposition to the motion to dismiss. The Court therefore took the motions under submission on the papers and took the hearing off calendar.
Even though the hearing had been taken off calendar and notice mailed to Ms. Vargas, she nevertheless appeared on March 26 for the hearing. Although told that the hearing was off calendar, she began asking the Court questions about whether her opposition had been filed. That question, and its answer, are summarized in the Court's order of March 27 (Docket no. 42.) That order explained that although Ms. Vargas' opposition to the motion for sanctions had been received and filed, she had never filed any opposition to the motion to dismiss. The order directed her to file supplemental briefing by April 23, explaining why the motion to dismiss should not be granted. The order made clear that if no supplemental briefing was filed opposing the motion to dismiss, the Court would assume she conceded that point. (Id. at 2:3--9, 2:16--19.) The order set a hearing on May 19, and specified that if Ms. Vargas didn't file an opposition to the motion to dismiss within the time permitted, the dismissal issue would be considered submitted on the papers and the only issue at the hearing would be sanctions. (Id. at 2:15--19.) The order also pointed out that Ms. Vargas could check the docket herself to determine the status of a hearing or the case, and told her how to do so. (Id. at 2:20--22 and n.1.)
The parties then jointly moved to continue the sanctions hearing, and the deadline by which Ms. Vargas was to file her opposition. The Court granted this motion, and required Ms. Vargas to file her opposition no later than May 29, 2012. (Docket no. 44.) Ms. Vargas never filed any opposition, and on June 19, the Court granted Defendant's unopposed motion to dismiss, took the sanctions motion under submission, and vacated the hearing. Judgment was entered on the complaint on June 19.
The District has moved for sanctions under Fed. R. Civ. P. 11 and under the Court's own inherent power.Defendant has provided evidence it complied with Rule 11(c)(2)'s safe harbor provision, and that Ms. Vargas did not withdraw her complaint or cease litigating after that time. The Court is aware that it may consider sanctions on the basis of its own inherent authority without resorting to Rule 11, see Chambers v. NASCO, Inc., ...