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Jody Lynn Von Haar v. City of Mountain View

November 15, 2012


The opinion of the court was delivered by: Lucy H. Koh United States District Judge


Before the Court is the Motion for Relief Under Rule 60 and to Purge Contempt of William B. Look ("Mr. Look"), counsel for Plaintiff Jody Lynn Von Haar. ECF No. 58 ("Motion for 18 Relief"). The Court also considers various arguments made in Mr. Look's Memorandum of Points 19 and Authorities in support of his Ex Parte Application for an Order Shortening Time for Relief 20

Under Rule 60 (ECF No. 64 ("Supp. Motion") (collectively, "Motions") to the extent these 21 arguments pertain to the substance of Mr. Look's Motion for Relief. The Motion for Relief seeks 22 relief from this Court's September 12, 2011 Civil Contempt Order ("Civil Contempt Order") 23 finding Mr. Look in contempt of the Court. ECF No. 53. Having considered the Motions, the 24 relevant case law, and Mr. Look's arguments at the November 6, 2012 hearing on this matter, the Court GRANTS IN PART and DENIES IN PART the Motion for Relief. 26 27

4 case, alleging that Defendants Tony Vieyra, Ty Zemlok, and Fernando Maldonado, all of whom 5 were police officers for Defendant City of Mountain View (collectively, "Defendants"), used 6 excessive force on Plaintiff during a traffic stop, and that Defendants' conduct constituted cruel 7 and unusual punishment. ECF No. 1. 8 2012. ECF No. 10. Defendants' motion was granted on November 12, 2010. ECF No. 16. 11 ECF No. 18. Defendants mistakenly noticed their motion before Magistrate Judge Lloyd, who had 14 been the presiding judge on the case before the case was reassigned to the undersigned judge on 15 October 21, 2010. ECF Nos. 14 and 18. Accordingly, this Court issued an order resetting the 16 hearing on Defendant's motion to dismiss so that it would take place before this Court. ECF No. 17 13, 2011 (id.); thus, providing Plaintiff almost a month to respond to the motion to dismiss. 19


A.Filing of the Complaint and Motions to Dismiss

On July 8, 2010, Plaintiff Jody Lynn Von Haar ("Plaintiff") filed a Complaint in the instant On September 21, 2010, Defendants filed a motion to dismiss the Complaint. ECF No. 6. Plaintiff filed her opposition on October 7, 2010. Defendants filed their reply on September 10, 10 Plaintiff filed her First Amended Complaint on November 23, 2010. ECF No. 17. Defendants moved to dismiss Plaintiff's First Amended Complaint on December 7, 2010.

19. This Court also ordered that the deadline for Plaintiff to file her opposition would be January 18 On January 24, 2011, Claudia Leed, counsel for Defendants, filed a declaration stating that Defendants had not received an opposition from Plaintiff. ECF No. 21 at 2. On January 27, 2011, 21 two weeks after the Court ordered deadline, Plaintiff filed an opposition. ECF No. 22. In response 22 to Defendants' statements regarding Plaintiff's failure to file an opposition by the Court's January 23 13, 2011 deadline, Plaintiff's counsel, Mr. Look, stated that: (1) "A Rule 12 Motion is a law 24 motion and technically no opposition is required and plaintiff can stand on the pleadings," and (2) 25

"[P]laintiff had to review the file to find the prior briefing Order, since the FRCP call[s] for a due 26 date for [the] opposition twenty days prior to [the] hearing." Id. at 1. 27 28 to amend. ECF No. 24. A Second Amended Complaint was filed on March 1, 2011. ECF No. 25. 3
Defendants answered on March 16, 2011. ECF No. 26. 4 Joint Case Management Statement by April 27, 2011. Id. 8 portion of the Joint Case Management Conference Statement. See Declaration of Claudia Leed in 10 ("Leed Decl."), Ex. B. Ms. Leed requested that April 21, 2011. Id. Mr. Look responded on April 15, 2011, stating: "I may substitute out of this 13 case since I anticipate I will be out of state for several months. Thus, I may defer a response to the 14 last minute to allow new counsel to handle this." Id. Nevertheless, in a second email on April 15, 15 2011, Mr. Look forwarded a revised draft of the Joint Case Management Conference Statement 16 incorporating Plaintiff's positions. Id. 17 18 various issues relating to discovery. Specifically, Defendants stated that they had provided their 19 initial Rule 26 Disclosures to Plaintiff, but that Plaintiff had not provided her Rule 26 Disclosures. 20

Mr. Look "regarding Rule 26 Disclosures without success." Id. Defendants also stated that they 22 were willing to meet and confer with Mr. Look regarding Defendants' objections to a set of 23

Requests for Production propounded on Defendants by Plaintiff, but that Defendants had "been 24 unable to do so." Id. at 6. 25 26 responded to Defendants' allegations. Specifically, Mr. Look stated that Plaintiff had "made 27 repeated efforts to meet and confer in February and [D]efendants did not cooperate." Id. at 5. Mr. 28

The Court granted Defendants' motion to dismiss the First Amended Complaint with leave B.Mr. Look's Conduct Following the Filing of the Second Amended Complaint Following the filing of the Second Amended Complaint, the Court scheduled a Case Management Conference for May 4, 2011. ECF No. 27. The Court ordered the parties to submit a 7 On April 14, 2011, Ms. Leed, emailed Mr. Look a document containing Defendants' Support of Defendants' Response to Plaintiffs' Response to Order to Show Cause, ECF No. 36 11 Plaintiff complete her portion of the statement by

In the Joint Case Management Conference Statement, Defendants informed the Court of See ECF No. 29 at 5. Defendants further stated that they had attempted to meet and confer with 21

In Plaintiff's portion of the Joint Case Management Conference Statement, Mr. Look Look stated that "[i]n March[,] [D]efendants chose a unilateral date not convenient to plaintiff," 2 and that that was why "Rule 26 Disclosures ha[d] not been made." Id. Mr. Look also stated that 3 Plaintiff had not received any documents from Defendants. Id. Mr. Look further stated: "It is 4 ironic that defendants purport a lack of cooperation given the discovery history already of record in 5 this matter. Plaintiff sees no rational impediment to completing the Rule 26 procedure provided 6 defendant is reasonably cooperative-- and as is clear from this statement the level of cooperation 7 so far has not be[en] effective. (emphasis insisted upon by plaintiff's counsel.)" Id. (all emphasis 8 in original). 9

On May 4, 2011, the Court held an initial case management conference ("May 4 CMC").

Neither Mr. Look nor Plaintiff appeared. Furthermore, Ms. Leed relayed to the Court that she had 11 had substantial difficulties in working with Mr. Look. Specifically, Ms. Leed noted that, while Mr. Look was somewhat responsive to e-mails, Mr. Look did not answer telephone calls. Transcript of 13 May 4, 2011 Case Management Conference ("May 4 CMC Transcript") at 5:19-25. Ms. Leed also 14 stated she had noticed Plaintiff's deposition for May 5, 2011, and received no objection from 15

Plaintiff. Id. at 13:17-25. However, when she brought up the deposition date with Mr. Look via e-16 mail prior to the May 4 CMC, Mr. Look stated that his client was unavailable and that Mr. Look 17 was not sure whether Mr. Look would be available either. Id. Ms. Leed also reiterated 18

Defendants' statements in the Joint Case Management Conference Statement regarding the 19 difficulties in arranging a Rule 26 Conference with Mr. Look, and Mr. Look's failure to respond to 20 In light of Mr. Look's conduct, the Court set forth very specific deadlines for the parties to 22 meet and confer and to complete certain discovery obligations. See id. at 6:10-15, 9:9-13, 10:9-10, 23 12:4-7, 12:13-13:5, 14:21-15:23; ECF No. 30 (Case Management Order). Specifically, the Court 24 ordered that: 25

Defendants' objections to Plaintiff's Requests for Production. Id. at 14:11-20. 21 (1) By May 11, 2011, Plaintiff's counsel shall provide Plaintiff's dates of availability for deposition.. (2) By May 13, 2011, the parties shall meet and confer regarding (a) Defendants' objections to Plaintiff's requests for production, and (b) Defendants' request that Plaintiff produce copies of her medical records.

(3) By May 18, 2011, Plaintiff shall produce initial disclosures.

(4) By May 25, 2011, Plaintiff and Defendants shall exchange documents designated in the initial disclosures..

ECF No. 30. The parties were additionally required to meet and confer regarding a protective 4 order by May 18, 2011. Id. The Court also advised Plaintiff that if she failed to comply with the 5

Court-ordered deadlines, the Court might issue an order to show cause why the case should not be 6 dismissed for failure to prosecute or why Plaintiff's counsel and/or Plaintiff should not be 7 sanctioned for failure to comply with a Court order. Id; see also May 4 CMC Transcript at 6:10-8 15; ECF No. 30. The Court further instructed Ms. Leed to advise the Court if Plaintiff failed to 9 comply with the Court's orders. May 4 CMC Transcript at 15:24-16:5. 10 11 comply with the Court's May 4, 2011 Case Management Order.

Plaintiff's Non-Compliance With Court Order, ECF No. 32. Plaintiff filed no response to 13

On May 26, 2011, Defendants filed a notice advising the Court that Plaintiff had failed to Defendants' notice. Accordingly, on June 6, 2011, the Court ordered Plaintiff to show cause why 14 the case should not be dismissed for failure to prosecute. ECF No. 33. Mr. Look filed a response 15 in which he explained that counsel and Plaintiff lacked funds to prosecute the case, and that 16

Plaintiff had been seeking new counsel. ECF No. 34. In response, Defendants filed a statement in 17 which they informed the Court that Plaintiff's counsel was suspended from the practice of law 18 effective April 4, 2011 for a period of 120 days. See Leed Decl., ¶ 2; id., Ex. A (Suspension Order 19 from the California State Bar). Defendants stated that Mr. Look had engaged in the unauthorized 20 practice of law by signing the Joint Case Management Conference Statement and responding to 21

Ms. Leed's emails regarding: (1) the preparation of the joint statement, and (2) certain informal 22 document requests. Id., ¶ 4. Among the emails referenced was Mr. Look's April 15, 2011 email 23 stating that he was "substitut[ing] out of this case [because he]. anticipate[d] [he would]. be out 24 of state for several months." Id. In reply, Mr. Look acknowledged the suspension, but claimed 25 that it had not yet taken effect. ECF No. 37. 26 27 28 2 as it appeared that he was no longer financially able to represent Plaintiff. ECF No. 38. Mr. Look 3 failed to file this motion by the July 15, 2011 deadline. 4

5 in advance of the next Case Management Conference, which was scheduled to take place on 6

On July 2, 2011, the Court ordered Mr. Look to file a motion to withdraw by July 15, 2011, Subsequently, on August 24, 2011, both parties filed separate Case Management Statements August 31, 2011. ECF Nos. 39 and 40. In Defendants' Case Management Statement, Defendants 7 noted that Plaintiff was required to file a motion to withdraw by July 15, 2011 and that Mr. Look 8 had not done so. ECF No. 39 at 5. Defendants additionally noted that Plaintiff still had not made 9 her initial disclosures, and that defense counsel still had not had any success in meeting and 10 conferring with Mr. Look. Id. Defendants further stated that discovery in the case was "effectively May 4, 2011 Case Management Order requiring Plaintiff to participate in discovery and meet and 14 confer with defense counsel regarding various discovery issues. Id. 15

In Plaintiff's Case Management Conference Statement, Mr. Look stated that he had been 16 seeking to obtain new counsel to represent Plaintiff but had not been able to find an attorney 17 willing to take on the case. ECF No. 40 at 1-2. Mr. Look also stated that, "[d]espite several 18 attempts to reach [P]laintiff by email and correspondence[,]" Mr. Look had been unable to contact 19 Plaintiff since "early June 2011." Id. at 2. Mr. Look stated that, "[a]s a result, it is not possible to 20 file a substitution of counsel." Id. Accordingly, Mr. Look contended that he was left with "no 21 alternative except to request leave to withdraw.." Id. 22 stalled since [Mr. Look]. ha[d] not produced his client for deposition or provided Rule 26

[d]isclosures." Id. Defendants further noted that Plaintiff still had not complied with the Court's 13 A further Case Management Conference was held on August 31, 2011 ("August 31 CMC"). ECF No. 42 (Case Management Order). At the Case Management Conference, the Court inquired 24 as to why Mr. Look had not filed his motion to withdraw as counsel by the July 15, 2011 deadline. 25 2:12-14. Mr. Look stated that he failed to file the motion to withdraw because he 27

"[mis]understood" the Court's order, and believed the Court was "request[ing] that we file[] a 28

Transcript of August 31, 2011 Case Management Conference ("August 31 CMC Transcript") at 26 substitution of counsel." Id. at 2:15-16; ECF No. 53 at 4. Mr. Look claimed that he "overlooked" 2 the language in the order requiring him to file a motion to withdraw. Id. at 2:21-22. Mr. Look 3 further stated that he "was uncertain how [he] should proceed" because he had "had no 4 communication from the client[]." Id. at 2:23-3:2; see also ECF No. 40 (stating that Mr. Look had 5 had no contact from the client "since early June 2011"). In response to Mr. Look's claims that he 6 had not known he needed to file a motion to withdraw, the Court advised Mr. Look that his 7 explanation was not believable because he had made a "request for leave to withdraw" in his 8

25. Mr. Look responded that he made the request for leave to withdraw not because he believed he 10 was required to do so by the Court's July 2, 2011 Order, but rather because, on August 23, 2011, he August 24, 2011 Case Management Conference Statement. August 31 CMC Transcript at 10:24-9 had been informed by counsel for the State Bar that he was required to withdraw from all pending cases. Id. at 11:3-6, 11:14-18. Mr. Look stated that he had previously believed he "could remain 13 of record and have counsel appear specially to fill in for [Mr. Look] during the period of [his] 14 suspension." Id. at 5: 7-9. 15

The Court informed Mr. Look that it was ordering Mr. Look's client to show cause why the 16 case should not be dismissed for failure to prosecute. See Id. at 3:17-18;ECF No. 42. The Court 17 further stated that it was ordering Mr. Look to show cause why sanctions should not be imposed. 18

August 31 CMC Transcript at 17:24-25;ECF No. 42. In order to allow the hearing on the order to 19 show cause regarding sanctions to occur before September 9, 2011, the date Mr. Look's State Bar 20 suspension would begin, the Court scheduled the hearing for September 8, 2011. See August 31 21

CMC Transcript at 25:22-25 ("The Court: I am going to set a hearing on the order to show cause, 22 and unfortunately I think it needs to be before the 9th because that's when you are no longer able to 23 practice. Mr. Look, Jr.: That's correct.");id. at 2:21-3:7 (Mr. Look stating that, if he were to file a 24 motion to withdraw, the motion would need to be "hear[d]. by the 7th" because Mr. Look was 25 going to be suspended beginning September 9, 2011). Additionally, the Court ordered Mr. Look to 26 contact Plaintiff Jody Von Haar and explain to her his status with the State Bar. See ECF No. 42. 27 28 Notably, Mr. Look did not state at any point during the August 31 CMC that he had previously 2 informed Ms. Von Haar of his pending suspension. 3

4 which he stated that, after the August 31 CMC, he had been able to contact Plaintiff. ECF No. 41. 5

(2) a written Order to Show Cause Why Sanctions Should Not Be Imposed (ECF No. 43 ("OSC")). 8

1. failing to disclose to opposing counsel that his impending suspension by the State Bar was the true reason for his potential withdrawal from the case.

2. failing to appear at the May 4, 2011 case management conference.

3. failing to comply with the discovery deadlines imposed by the Court's May 4, 2011 case management order, including: (a) failure to provide Plaintiff's dates of availability for deposition by May 11, 2011; (b) failure to respond to Defendants' request to meet and confer by May 13, 2011; (c) failure to produce initial disclosures by May 18, 2011; (d)

failure to exchange documents designated in the initial disclosures by May 25, 2011; (e) failure to respond to Defendants' draft protective order by May 18, 2011.

4. failing to comply with the Court's July 2, 2011 order to file a motion to withdraw as counsel by July 15, 2011.

Later on August 31, 2011, Mr. Look filed a Supplemental Case Management Statement in

The following day, on September 1, 2011, the Court issued: (1) a written Order to Show

Cause Why Plaintiff's Case Should Not Be Dismissed for Failure to Prosecute (ECF No. 44), and 7

In the OSC, Mr. Look was ordered to show cause why he should not be sanctioned for: 9

See Id. In an effort to comply with Mr. Look's request that the OSC hearing take place before his bar suspension began, the Court expedited the briefing schedule on the OSC and set ...

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