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Hupp v. San Diego County

United States District Court, Ninth Circuit

September 25, 2013

PAUL HUPP, Plaintiff,


RUBEN B. BROOKS, Magistrate Judge.

On July 23, 2013, Plaintiff Paul Hupp submitted a Notice of Emergency Ex Parte Motion and Emergency Ex Parte Motion to Quash Raymond Wetzel Subpoena; the Motion addresses two subpoeanas for records [ECF No. 133]. The Court stayed any production of records under the subpoenas and set a briefing schedule for Plaintiff's Ex Parte Motion. (See Mins., July 24, 2013, ECF No. 134.) Plaintiff's Supplemental Brief Supporting Emergency Ex Parte Motion to Quash Raymond Wetzel Subpoena [ECF No. 136] was filed nunc pro tunc to July 24, 2013; it adds a third subpoena to Hupp's Motion to Quash. On August 7, 2013, Defendants City of San Diego and Raymond Wetzel filed their Opposition to Plaintiff's Motion to Quash Subpoena [ECF No. 137]. Plaintiff's Reply was filed nunc pro tunc to August 15, 2013 [ECF No. 144]. For the following reasons, Plaintiff's Ex Parte Motion is GRANTED in part and DENIED in part.


On February 28, 2012, Plaintiff Paul Hupp, proceeding pro se, commenced this action pursuant to 42 U.S.C. ยง 1983. (Compl. 1, ECF No. 1.) Plaintiff's Third Amended Complaint was filed on August 28, 2012 [ECF No. 64], naming as Defendants San Diego County, City of San Diego, City of Beaumont, James Patrick Romo, Raymond Wetzel, William Kiernan, Peter Myers, and Joseph Cargel. (Third Am. Compl. 1, ECF No. 64.) Hupp's action arises from his contempt of court charges and conviction in San Diego Superior Court in 2011. (See id. at 4-5, 7-8.)

Plaintiff alleges that in November 2010, Jeffrey Freedman[1] obtained a three-year restraining order against Hupp in San Diego Superior Court. (Id. at 4.) In July 2011, Freedman brought contempt charges against Hupp for sending letters to Freedman in violation of the restraining order. (Id. at 5.) Defendant William Kiernan, an attorney from the San Diego County Office of the Assigned Counsel, was appointed to represent Hupp. (Id.) Hupp alleges that Kiernan failed to investigate the case or request discovery, failed to communicate with Hupp, and that his lack of preparation amounted to ineffective assistance of counsel. (Id. at 6-7.) Plaintiff also claims that Defendants performed DNA and fingerprint tests on the letters and envelopes allegedly sent by him, but Defendants wrongfully withheld this exculpatory forensic evidence until February 2012, when they produced the evidence in another court case. (Id. at 11-12.)

Plaintiff claims that he was wrongfully convicted based on insufficient evidence and sentenced to twenty-five days in custody and a $5, 000 fine. (Id. at 7.) Hupp alleges that the trial judge improperly denied him custody credits under the California Penal Code section 4019. (Id. at 8.)

On January 3, 2012, Hupp reported to the San Diego Sheriff's Department to serve his twenty-five day sentence. (Id. at 9.) Plaintiff claims that he told the Sheriff's Department personnel that they had to apply his custodial credits under California Penal Code, but they refused to apply the section 4019 credits. (Id.) Hupp also claims that he was denied access to the law library and prevented from filing legal papers. (Id. at 10-11.)

Plaintiff alleges that Defendants never disclosed to him that the San Diego District Attorney's office, San Diego Police Department, Deputy District Attorney Romo, and Defendant Wetzel were investigating and assisting Deputy Attorney General Drcar prosecute the November 2011 civil contempt proceedings against Hupp. (Id. at 7, 11.) Hupp also claims that Defendants failed to disclose exculpatory DNA and fingerprint evidence obtained from the letters Freedman received in violation of Plaintiff's due process rights under Brady v. Maryland , 373 U.S. 83 (1963). (Id. at 11-12.)

These allegations form the basis of Plaintiff's claims for violation of civil rights, conspiracy to withhold Brady evidence, interference with legal mail and free speech, unlawful detention, intentional infliction of emotional distress, as well as gross negligence in the hiring, training, supervision, and retention of prosecutors and peace officers. (See id. at 12-29.) Hupp claims that Defendants' actions caused him emotional and psychological injuries, embarrassment, humiliation, shame, fright, fear, and grief. (Id. at 14, 20-21.) In connection with his claims, Plaintiff seeks compensatory and punitive damages exceeding $75, 000, as well as declaratory and injunctive relief. (Id. at 35-37.)


Plaintiff's Ex Parte Motion seeks to quash three subpoenas served by Defendant Wetzel on the custodian of records at the San Diego Sheriff's Department. (See Pl.'s Ex Parte Mot. Quash Raymond Wetzel Subpoena 1, [2] ECF No. 133; Pl.'s Supplemental Br. Supporting Ex Parte Mot. Quash Raymond Wetzel Subpoena 2, ECF No. 136.) Hupp argues that the subpoenas are overly broad, lack relevance, and the records sought are not material. (Pl.'s Ex Parte Mot. Quash Raymond Wetzel Subpoena 8, ECF No. 133.) He also claims that the subpoenas constitute "an extreme invasion into the personal privacy of Plaintiff." (Id. at 9.)

A party may serve a subpoena commanding a nonparty "to produce documents, electronically stored information, or tangible things." Fed.R.Civ.P. 45(a)(1)(C). The subpoena is subject to the relevance requirements set forth in Rule 26(b) and may command the production of documents which are "nonprivileged" and "relevant to any party's claim or defense." Fed.R.Civ.P. 26(b)(1). Relevant information includes matter "reasonably calculated to lead to the discovery of admissible evidence." Id . The information sought need not be admissible at trial as long as it appears reasonably calculated to lead to the discovery of admissible evidence. Id . A "relevant matter" under Rule 26(b)(1) is any item that "bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders , 437 U.S. 340, 351 (1978).

On a timely motion, a subpoena may be quashed if it "requires disclosure of privileged or other protected matter, if no exception or waiver applies...." Fed.R.Civ.P. 45 (c)(3)(A)(iii).

A person withholding subpoenaed information under a claim that it is privileged or subject to protection as ...

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