United States District Court, C.D. California, Southern Division
WENDI OPPENHEIMER et al. Plaintiffs,
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.
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
OF CERTIFIED FACTS
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.
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).
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.
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.
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.”
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.
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.
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.
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.
failed to appear for the February 14, 2017 ...