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Narog v. City of Redwood City

United States District Court, N.D. California

March 17, 2014

CORY NAROG, Plaintiff(s),


DONNA M. RYU, Magistrate Judge.

Before the court are a joint discovery letter filed by Plaintiff Cory Narog and a third party, the law firm of Hayes, Scott, Bonino, Ellingson & McLay, LLP ("Hayes Scott") ["Hayes Scott Letter, " Docket No. 21] and a joint discovery letter filed by Plaintiff and another third party, the law firm of Hartnett, Smith & Paetkau ("HSP") ["HSP Letter, " Docket No. 27]. In each letter, Plaintiff seeks to compel the non-party to produce documents in response to Plaintiff's subpoena. The court held a hearing on the letters on March 13, 2014. For the reasons stated below and at the hearing, Plaintiff's motions to compel are denied.


A. Factual Allegations in First Amended Complaint

On August 23, 2013, Plaintiff filed this lawsuit against the City of Redwood City ("Redwood City"), three of Redwood City's police officers (Officers Figueroa, Faljean, and Gary), and unnamed Doe defendants. See First Am. Compl. ("FAC") [Docket No. 7]. Plaintiff alleges that he called the Redwood City Police Department ("RCPD") on September 5, 2010, to report an incident of suspected vandalism at his home in Redwood Shores, California. Plaintiff had ongoing problems with his neighbors, and suspected that one of them may have vandalized his property. Officer Figueroa met with Plaintiff, visited Plaintiff's property, reviewed his statement, and left. FAC ¶¶ 14-17.

Plaintiff alleges that on next day, September 6, 2010, Officer Faljean attended a neighborhood watch meeting at which Plaintiff was not present and advised the meeting attendees to monitor and document Plaintiff's activities. Plaintiff believes that Officer Faljean's conduct caused Plaintiff's neighbors to conduct surveillance on Plaintiff's property and to harass and annoy Plaintiff. FAC ¶¶ 18-19.

Between September 2010 and August 2011, Plaintiff's relations with his neighbors worsened and resulted in litigation between Plaintiff and several of his neighbors, including Allen Claybaugh. Plaintiff alleges that Claybaugh's attorney, Dara Tang of Hayes Scott, met several times with officers of the RCPD to discuss future action to be taken against Plaintiff. FAC ¶ 20.

On August 18, 2011, Officer Gary contacted Plaintiff to discuss Plaintiff's September 5, 2010 report of suspected vandalism. On February 9, 2012, the San Mateo County District Attorney filed a criminal complaint against Plaintiff alleging a misdemeanor violation of California Penal Code § 148.5(a) for making false reports to police. On May 8, 2012, Plaintiff went to the RCPD to pick up police reports he had requested and was arrested by several police officers in connection with the criminal complaint. FAC ¶ 30. Plaintiff was held for two days and released on bail.

Plaintiff made six court appearances in connection with his criminal case from June 2012 until December 2012. FAC ¶ 34. On December 17, 2012, the criminal complaint against Plaintiff was dismissed. Id.

Plaintiff now brings six causes of action against Defendants: (1) malicious prosecution in violation of the Fourth Amendment and 42 U.S.C. § 1983; (2) retaliation in violation of the First Amendment and Section 1983; (3) infringement on Plaintiff's due process rights in violation of the Fourteenth Amendment and Section 1983; (4) violation of California Civil Code § 52.1; (5) intentional infliction of emotional distress; and (6) abuse of process. FAC ¶¶ 43-83.

B. Hayes Scott's Description of Events[1]

Hayes Scott paints quite a different picture of the events surrounding this litigation. According to Hayes Scott, one of Plaintiff's neighbors obtained a restraining order against Plaintiff in 2004 for, among other things, driving his truck noisily up and down the street and "mooning" his neighbors. Plaintiff violated the restraining order, which resulted in a criminal charge. Several of Plaintiff's neighbors testified against Plaintiff at the criminal trial. A jury determined that Plaintiff had violated the restraining order and in 2006 Plaintiff was sentenced to six months in custody. The judge also entered a restraining order prohibiting Plaintiff from entering the Redwood Shores community for three years.

In June 2009, upon expiration of the restraining order, Plaintiff returned to the community and began targeting those neighbors who had testified against him by filing petitions for restraining orders against them. Hayes Scott represented three people against whom Plaintiff had filed petitions (Raymond Fung, Allen Claybaugh, and Elayne Pace); an attorney named Michael Allen represented another (Gary Krippendorf); and Jim Hartnett, an attorney from HSP, represented Scott Armstrong, another neighbor against whom Plaintiff had made allegations but has not filed a petition for restraining order.

Plaintiff's petition against Fung was filed in March 2010. A court denied the petition in April 2010. Plaintiff then filed a series of petitions against Claybaugh, Pace, and Krippendorf between September and November 2010. All three were scheduled to be heard before the same judge (Judge Freeman of the San Mateo County Superior Court) on the same day in December 2010.[2] Thus, the Hayes Scott firm, Michael Allen, and HSP allege that they agreed to share information subject to a joint defense privilege in light of their common interest of defending themselves against what they viewed as Plaintiff's retaliatory campaign. The law firms did in fact correspond regarding the status of the restraining order petitions, share documents and information, and discuss investigative actions in furtherance of their clients' defense. Hayes Scott Letter at 7. Judge Freeman denied all three petitions, awarded each defendant attorneys' fees and costs, and also declared Plaintiff a vexatious litigant.[3]

In November 2010, during the course of litigation on the three petitions described above, Hayes Scott, Michael Allen, and Jim Hartnett met with officers of the RCPD "to sort out the various police and incident reports filed by [Plaintiff] which he utilized in his TRO petitions, as well as to gather information regarding [Plaintiff's] criminal history." Hayes Scott Letter at 7. In addition, Hayes Scott attorney Dara Tang had a phone call with Captain Mulholland of the RCPD in December 2010 regarding the vexatious litigant motion filed against Plaintiff by Claybaugh.

According to Hayes Scott, the joint defense agreement between Hayes Scott, Michael Allen, and HSP has continued. Hayes Scott notes that these counsel "discussed providing the RCPD and DA's office with the facts regarding [Plaintiff's] TRO Petitions against our respective clients and specifically to point out the ...

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