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Oppenheimer v. The City of La Habra

United States District Court, C.D. California, Southern Division

February 17, 2017

WENDI OPPENHEIMER et al. Plaintiffs,
v.
THE CITY OF LA HABRA et al., Defendants.

          CERTIFICATION OF FACTS AND ORDER TO SHOW CAUSE WHY CHLOE OPPENHEIMER SHOULD NOT BE HELD IN CONTEMPT

          DOUGLAS F. McCORMICK United States Magistrate Judge.

         Nonparty Chloe Oppenheimer (“Oppenheimer”) has failed to appear for a deposition and failed to appear in Court to address why she should not be held in contempt for her failure to appear for a deposition. As discussed below, the Court certifies the following facts and orders Oppenheimer to appear before the District Judge to show cause why she should not be adjudged in contempt for failure to comply with a deposition subpoena and associated order. Oppenheimer is warned that her failure to comply with this Order may result in contempt sanctions including deposition fees, attorney's fees, and/or her arrest by the United States Marshals Service.

         STATEMENT OF CERTIFIED FACTS

         Plaintiffs filed this lawsuit on January 6, 2016, alleging civil-rights and wrongful-death claims stemming from the January 2, 2015 suicide of Daniel Oppenheimer (“Decedent”), Plaintiffs' family member, in the La Habra City Jail. See Dkt. 1; see also Dkts. 8, 26 (amended complaints). Nonparty Oppenheimer is Decedent's biological daughter, Plaintiff Vannes Oppenheimer's sister, and Plaintiff Wendi Oppenheimer's stepdaughter. Dkt. 60 (“Lenkov Decl.”) ¶ 6. Defendants seek to depose Oppenheimer “regarding Plaintiffs' alleged damages and her knowledge as a percipient witness to the relationships between [D]ecedent and Plaintiffs Vannes Oppenheimer and Wendi Oppenheimer.” Id.

         On November 2, 2016, investigator Nichole L. Tahmasian personally served on Oppenheimer a subpoena and notice of deposition, compelling her to appear for a deposition at 10:30 a.m. on November 14, 2016, at defense counsel's office in San Diego. Lenkov Decl. ¶ 3 & Exs. A (subpoena and proof of service) & B (notice of deposition); Dkt. 153-1, Ex. B (Tahmasian Decl.) ¶ 3. Enclosed with the deposition notice was a check for witness fees of $83.20. Lenkov Decl., Ex. A. Oppenheimer cashed the check later that same day. Dkt. 110-1, Ex. B (copy of endorsed, cashed check). On November 14, 2016, Oppenheimer failed to appear for the deposition. Lenkov Decl. ¶ 5 & Ex. C (reporter's statement of nonappearance).

         On December 6, 2016, Defendants filed a Motion to Compel Compliance with Subpoena of Unrepresented Non-Party Chloe Oppenheimer and Request for Order to Show Cause Why Ms. Oppenheimer Should Not Be Held in Contempt. Dkt. 59 (“Motion”). Defendants did not identify what specific sanctions they sought, nor did they submit an affidavit of attorney's fees and costs incurred as a result of Oppenheimer's failure to appear. See Id. On December 20, 2016, Plaintiffs opposed the Motion, arguing that it was untimely, among other things. Dkt. 65. On December 23, 2016, Defendants filed a reply. Dkt. 75.

         On January 9, 2017, the Court denied Defendants' Motion to the extent it sought an order compelling Oppenheimer to appear for a deposition, finding that such an order was not an available remedy against a nonparty. Dkt. 99 at 2. The Court granted Defendants' Motion to the extent it sought an order to show cause. Id. In a separate Notice of Hearing and Order to Show Cause Re: Contempt, the Court ordered Oppenheimer to appear at 10 a.m. on January 24, 2017, to show cause why she should not be adjudged in civil contempt for failing to comply with the deposition subpoena. Dkt. 100. The Court set a deadline for Oppenheimer to file an opposition to Defendants' Motion and it directed defense counsel to personally serve her with a copy of the notice and order and associated pleadings within 3 business days. Id.

         On January 10, 2017, investigator Cheryl L. Yocum went to Oppenheimer's home to serve her with the January 9 notice and order and associated documents. See Dkt. 109-1, Ex. B (“Yocum Decl.”). Yocum “visually identified . . . Oppenheimer as she exited from her car” but Oppenheimer “refused to accept the documents” and “threatened to contact the police as she walked through the gate to her unit.” Id. ¶ 5. Yocum “plac[ed] the documents inside the gate to [Oppenheimer's] unit” and “informed [Oppenheimer] that [Yocum] was placing the documents at the gate and that she had been served.” Id.

         On January 19, 2017, Plaintiffs filed an Objection to the Hearing and Order to Show Cause Re: Contempt, arguing that defense counsel had not properly served Oppenheimer with the January 9 notice and order. Dkt. 109. Defendants filed a response that same day. Dkt. 110.

         Oppenheimer failed to appear at the hearing on January 24, 2017. Dkt. 114. That same day, the Court continued the hearing to February 14, 2017. Id. The Court also issued an Amended Notice of Hearing and Order to Show Cause, ordering Oppenheimer to appear before the Court at 10 a.m. on February 14, 2017, “to show cause why she should not be adjudged in civil contempt of court for failing to comply fully with a deposition subpoena served upon her in this matter.” Dkt. 115. The Court set a date by which Oppenheimer could file an opposition to Defendants' Motion, and it ordered Defendants to personally serve the amended notice and order and associated pleadings on Oppenheimer within 7 days. Id.

         On January 26, 2017, investigators Jeffrey Gailey and Michael Foster went to Oppenheimer's home to serve her with the January 24 notice and order and associated documents. Dkt. 153-1, Ex. B (“Gailey Decl.”) ¶ 3, (“Foster Decl.”) ¶ 4. When Gailey saw Oppenheimer walking to her car, he approached her and “explained that [he] had additional court documents to serve on her” and that “she had been ordered to appear in court on February 14, 2017 and that this was a serious matter that needed her attention.” Gailey Decl. ¶ 3; see also Foster Decl. ¶ 4. When Oppenheimer got into her car without responding, Gailey placed the documents on her windshield and walked away. Gailey Decl. ¶ 3; see also Foster Decl. ¶ 4. Oppenheimer then got out of her car, took the documents from the windshield, ran after Gailey, and threw the documents at him. Gailey Decl. ¶ 3; see also Foster Decl. ¶ 4. Oppenheimer returned to her car and drove away. Gailey Decl. ¶ 3; see also Foster Decl. ¶ 4. Foster captured these events on videotape, which the Court has reviewed and found to reflect the events as described. See Gailey Decl. ¶ 3; see also Foster Decl. ¶ 4; Dkt. 153-2.

         After Oppenheimer drove away, Gailey placed the served documents in her yard. Gailey Decl. ¶ 4; see also Foster Decl. ¶ 5. The next day, he sent an additional copy of the documents to Oppenheimer by first-class mail. Gailey Decl. ¶ 5.

         Oppenheimer failed to appear for the February 14, 2017 ...


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