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Robinson v. The Chefs' Warehouse

United States District Court, N.D. California

June 16, 2017

SHAON ROBINSON, Plaintiff,
v.
THE CHEFS' WAREHOUSE, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION FOR RECONSIDERATION OF DEFENDANT'S MOTION FOR SANCTIONS RE: DKT. NO. 85

          KANDIS A. WESTMORE United States Magistrate Judge.

         On March 21, 2017, the Court sanctioned Plaintiffs' counsel Michael Hoffman for gross professional misconduct during the January 12, 2017 deposition of Plaintiff Shaon Robinson. (3/21/17 Order, Dkt. No. 78.) Specifically, monetary sanctions were imposed against Mr. Hoffman personally, he was referred to the Northern District's Standing Committee on Professional Conduct, and the undersigned ordered that all depositions taken or defended by Mr. Hoffman must occur at the Oakland Courthouse to permit court security officers and/or marshals to be present. Id. at 18, 20.

         On April 4, 2017, Defendant filed a motion for leave to file a motion for reconsideration limited to the Court's decision to permit Mr. Hoffman to take and defend depositions, which was granted on April 17, 2017. Thereafter, Defendant filed the motion for reconsideration.

         On June 1, 2017, the Court held a hearing, and, after careful consideration of the parties' arguments, and moving papers, and for the reasons set forth below, GRANTS Defendant's motion for reconsideration.

         I. BACKGROUND

         Plaintiffs Shaon Robinson and Sean Clark assert individual and class action claims against Defendant The Chef's Warehouse West Coast, LLC, alleging wage and hour violations, as well as various discrimination claims. The proposed class consists of “[a]ll persons employed by Defendant [ ] in the State of California as a Driver, Driver Trainer, or Dispatcher at any time on or after October 26, 2011.” (Second Am. Compl. ¶ 24.) Plaintiffs have three attorneys of record: Michael Hoffman, Leonard Emma, and Stephen Noel Ilg. Docket Sheet, Robinson v. The Chef's Warehouse, No. 15-cv-05421-RS (N.D. Cal. May 26, 2017).

         On February 2, 2017, Defendant filed a motion for sanctions against Mr. Hoffman pursuant to Federal Rule of Civil Procedure 30(d)(2), 28 U.S.C. § 1927, and the Court's inherent authority for his conduct at the January 12, 2017 deposition of named plaintiff Shaon Robinson. (Dkt. No. 59.)

         On March 16, 2017, the Court held a hearing on Defendant's motion for sanctions. At the hearing, Mr. Hoffman claimed that none of the attorneys in his office were competent to take or defend depositions in this case. (3/16/17 Hearing Tr., “Tr., ” Dkt. 89 at 27:20-28:4.) Co-counsel Leonard Emma similarly stated that he was not capable of taking or defending a deposition in this case, because he generally does written discovery, works with clients, and attends mediations. (Tr. 38:20-40:13.)

         The Court ultimately decided to impose monetary sanctions against Mr. Hoffman personally, and he was referred to the Northern District's Standing Committee on Professional Conduct. (3/21/17 Order at 20.) Based on the information available, including the representations of Mr. Hoffman and Mr. Emma at the hearing, the undersigned declined to preclude Mr. Hoffman from depositions at that juncture, but ordered that all depositions conducted or defended by Mr. Hoffman be taken at the Oakland Courthouse, where court security would be present. Id. at 18, 20.

         The day after the order was issued, Law360 published an article about the order. (Decl. of Michelle J. Beilke, “Beilke Decl., ” Dkt. No. 85-1 ¶ 4, Ex. A.) On March 24, 2017, Ms. Beilke received a voicemail message from an unknown number that stated “You little cunt, I'm coming for you. You better watch your back.” (Beilke Decl. ¶ 5, Ex. B.)

         Following the entry of the March 21, 2017 order, Ms. Beilke received information, from an anonymous source, of other cases in which Mr. Hoffman had engaged in similar misconduct. (Beilke Decl. ¶ 8-12.) In one case, Martinez v. Dynaelectric Co., No. CGC 08-478110 (Cal. Super. Ct. May 7, 2009), a discovery referee was appointed to supervise depositions due to Mr. Hoffman's misconduct, which included threatening, berating, and assaulting opposing counsel, who was female. (Beilke Decl. ¶ 10; Dkt. No. 81-4 at 2, 10.) Ms. Beilke was informed by another confidential source that Mr. Hoffman had another incident with co-counsel Barbara Figari, in which she described to the State Bar of California, in response to a complaint Mr. Hoffman filed against her, Mr. Hoffman's aggressive behavior towards her that led to her hiding in a bathroom while suffering from an anxiety attack. (Beilke Decl. ¶ 13, Ex. C at 5-7.)

         On April 4, 2017, Defendant filed a motion for leave to file a motion for reconsideration limited to the Court's decision to permit Mr. Hoffman to take and defend deposition at the Oakland Courthouse, which was granted on April 17, 2017. (Dkt. Nos. 80 & 83.)

         On April 18, 2017, Plaintiffs' counsel Stephen Noel Ilg sent defense counsel an email proposing that the parties stipulate to him and Mr. Emma conducting and defending all depositions in exchange for continuing all deadlines related to the motion for class certification. (4/18/17 Ilg Email, Beilke Decl., Ex. D.)

         On April 21, 2017, Defendant filed the motion for reconsideration. (Def.'s Mot., Dkt. No. 85.) On May 5, 2017, Mr. Hoffman filed his opposition. (Opp'n, Dkt. No. 93.) On May 12, 2017, Defendant filed its reply. (Def.'s Reply, Dkt. No. 98.)

         On June 1, 2017, the Court held a hearing, in which it ordered that Messrs. Hoffman, Emma, Ilg, and Robinson appear in person. Mr. Hoffman, however, left the courtroom when the Court began to address the incidents of his prior misconduct, approximately 10 minutes into the hearing, and did not return. Prior to his departure, Mr. Hoffman sat at the counsel table with his eyes closed and was rocking back and forth.

         After the hearing, the Court ordered Ms. Beilke to file a supplemental declaration with Mr. Hoffman's April 20, 2017 email attached, which she filed on June 6, 2017. (Suppl. Decl. of Michele Bielke, “Suppl. Bielke Decl., ” Dkt. No. 108.) On June 7, 2017, Mr. Hoffman filed a supplemental declaration to explain the context of his email. (Suppl. Decl. of Michael Hoffman, “Suppl. Hoffman Decl., ” Dkt. No. 109.) ///

         II. LEGAL STANDARD

         District courts possess the “inherent procedural power to reconsider, rescind, or modify an interlocutory order” before entry of final judgment. City of L.A., Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001); see also Fed. R. Civ. P. 54(b) (any order or decision which does not end the action “may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities”). Reconsideration is appropriate where “the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.” School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); see also Civil L.R. 7-9(b).

         III. DISCUSSION

         Defendant seeks to introduce new or newly discovered evidence: (1) threatening voicemail left for Ms. Beilke on March 24, 2017; (2) evidence of Mr. Hoffman's prior conduct; and (3) evidence that Messrs. Emma and Ilg are competent to take and defend depositions in this matter. (Def.'s Mot. at 4-10.)

         As an initial matter, and discussed in further detail below, the Court finds that Defendant exercised due diligence, such that the newly discovered evidence was not reasonably discoverable prior to the hearing.

         A. New evidence

         i. Threatening Voicemail

         The order on the motion for sanctions was issued on March 21, 2017, and Law360 published an article about the order on the following day. (Beilke Decl. ¶ 4, Ex. A.) On March 24, 2017, Ms. Beilke received a voicemail message from an unknown number that explicitly threatened her. (Beilke Decl. ¶ 5, Ex. B.) The messaged stated, “You little cunt, I'm coming for you. You better watch your back.” Id. This evidence is new, as it was left after the order was issued.

         Mr. Hoffman denies any involvement in the threatening voicemail message. (Hoffman Decl. ¶ 4.) Notwithstanding, the Court finds Ms. Beilke's heightened concern for her safety warranted. While there is insufficient evidence to attribute the voicemail, in light of the other facts in this case, the Court is very troubled by the particular language given the similarities to other expletives Mr. Hoffman has said in the past. See discussion infra Part III.A.ii.a (“cunt”).

         ii. Mr. Hoffman's Prior Conduct

         In opposition, Plaintiffs argue that the information pertaining to Mr. Hoffman's conduct was publicly available, and, therefore, the consideration of this evidence is improper. (Opp'n at 11-12.) The Court disagrees. Defendant exercised due diligence in its search for disciplinary actions against Mr. Hoffman prior to the hearing. (Def.'s Mot. at 5; Def.'s Reply at 5.) Specifically, Defendant searched Mr. Hoffman's State Bar of California record, and utilized Westlaw and Bloomberg Law, but did not find any record of prior discipline. (Def.'s Reply at 6-7, n. 4.) Defendant cannot be reasonably expected to scour the dockets of every court in California to find incidents of discipline. Accordingly, the Court finds that Defendant exercised due diligence and Mr. Hoffman's prior conduct may be considered.

         a. Reynoso v. State of California

         After the March 21 Order was issued, Defendant was told by a confidential source that, in 2008, a Sacramento County Superior Court judge issued a mistrial because Mr. Hoffman assaulted his female co-counsel in front of the jury. (Def.'s Mot. at 5-6; Order Granting the State of California's Mot. for Sanctions, Reynoso v. State of California, Case No. 05AS03030 (Cal. Super. Ct. Sept. 9, 2008), Dkt. No. 81-2; Beilke Decl. ¶ 8.) According to his former client, Silvia Reynoso, after assaulting his co-counsel, Mr. Hoffman continued to rage on her outside of the courthouse. (Letter from Sylvia Reynoso to Hon. Michael P. Kenny, “Reynoso Letter, ” at 2, Reynoso v. State of California, Case No. 05AS03030 (Cal. Super. Ct. Feb. 16, 2008), Dkt. No. 81-3; Beilke Decl. ¶ 8.) Ms. Reynoso described Mr. Hoffman screaming at his co-counsel and calling her names, such as “cunt” and “bitch.” (Reynoso Letter at 2.) Ms. Reynoso provided that Mr. Hoffman “instilled fear into me, ” and that she hoped that Judge Kenny would “reconsider contacting the State Bar about him. I am afraid that if I complain to the Bar about him that he might retaliate against me. Mr. Hoffman is a very angry man.” Id.

         b. State Bar of California, Case No. 08-O-14146

         After the March 21 Order was issued, Defendant learned that Mr. Hoffman filed a complaint with the State Bar of California against his former co-counsel, Barbara Figari, due to an incident arising in part from the Reynoso matter. (Def.'s Mot. at 7; Beilke Decl. ¶ 13.) Defense counsel obtained a copy of Ms. Figari's response to Mr. Hoffman's complaint, which described Mr. Hoffman's behavior towards her. (Beilke Decl. ¶ 13, Ex. C.) The letter explains that after Mr. Hoffman failed to pay the court-ordered sanctions, and then failed to appear at an order of examination, a warrant was issued for his arrest. Id. at 4. Upon learning of the arrest warrant, the letter states that Mr. Hoffman “went into Ms. Figari's office, closing the door behind him. His face was flushed red and he started yelling at her in a state of rage. He stood directly between Ms. Figari and the door, preventing her from leaving the room.” Id. The letter goes on to explain Mr. Hoffman's erratic behavior, including 40 minutes yelling at Ms. Figari, “You had better fucking fix this, ” “hit[ting] the back of Ms. Figari's chair with his hand in anger, ” and "continu[ing] to yell at Ms. Figari in an uncontrollable rage and [ ] throw[ing] things at her.” Id. The conduct was so egregious that Ms. Figari hid in the bathroom for 20 minutes and proceeded to experience an anxiety attack. Id. at 4-5. This behavior resulted of Mr. Hoffman's own conduct, which led to a warrant for his arrest because he failed to obey a court order. Id. at 4.

         c. Martinez v. Dynalectric Co.

         After the Order was issued, Defendant learned that Mr. Hoffman conducted himself in a very similar manner at multiple depositions in Martinez v. Dynalectric Co., Case No. CGC-08-478110 (Cal. Super. Ct. 2010). (Def.'s Mot. at 7; Beilke Decl. ¶¶ 9-11; Dkt. No. 81-4.) Similar to the present case, Defendant's Motion for Appointment of Referee to Supervise Depositions and for Sanctions was granted and Mr. Hoffman was ordered to take depositions in the courtroom. (Def.'s Mot. at 7-8; Beilke Decl. ¶¶ 9-11; 6/4/09 Mini Minutes Order, Dkt. No. 81-4.)

         d. Sexual Battery allegations

         After the Order was issued, Ms. Beilke was told by a confidential source that at least two women filed civil actions against Mr. Hoffman for gender violence, and in one case, additional causes of action for (1) assault, (2) battery, (3) intentional infliction of emotional distress; (4) sexual battery; (5) false imprisonment; (6) sexual assault and battery; and (7) negligent infliction of emotional distress. (Compl. at 4, ¶ 19, Jane Doe v. Hoffman, Superior Court of California, County of San Francisco, Case No. CGC-13-528939 (Cal. Super. Ct.), Dkt. No. 81-5; First Amended Cross-Compl. for Damages, Hoffman v. Calder, Superior Court of California, County of San Francisco, Case No. CGC 13-533961, Dkt. No. 81-6; Beilke Decl. ¶ 12. In Jane Doe, Plaintiff alleged that after Mr. Hoffman forced himself on her sexually and she attempted to run away, “Defendant [Hoffman] dragged JANE DOE back into the bedroom by her arm and began angrily and violently pulling her hair. He struck her on the side of her head and violently grabbed her breast. JANE DOE had multiple bruises from his beating.” (Compl. at 4, ¶ 19, Jane Doe v. Michael Robert Hoffman, Case No. CGG-13-528939 (Cal. Super. Ct. Feb. 22, 2013), Dkt. No. 81-5.

         After a bench trial, the court found Jane Doe's testimony credible, and that she “withdrew her prior consent to [Mr. Hoffman's] rough physical and sexual contact. (Statement of Decision After Court Trial at 4, Jane Doe v. Michael Robert Hoffman, Case No. CGG-13-528939 (Cal. Super. Ct. Apr. 2, 2014), Decl. of Michele J. Beilke ISO of Reply, “Beilke Reply Decl., ” Dkt. No. 98-1, Ex. A.) The judge acknowledged that Mr. Hoffman “volunteered on cross-examination that he is probably a ‘misogynist.' He testified that he often does not know his own strength and that during past sexual encounters, he can get ‘primal' and ‘out of his body.'” Id. at 3. The presiding judge further noted that Mr. Hoffman, on cross-examination, “was volatile and argumentative with Plaintiff's counsel. His answers were often long-winded, non-responsive, erratic, and angry.” Id. Mr. Hoffman was found guilty of assault, battery, intentional infliction of emotional distress, sexual battery, gender violence, violation of Civil Code § 51.7, false imprisonment, and negligent infliction of emotional distress, and Plaintiff was awarded $25, 000 in damages for past physical pain and suffering. Id. at 4-5.

         iii. Evidence that Co-Counsel are capable of taking and defending depositions

         At the hearing, Plaintiffs' counsel stated that Mr. Hoffman was the only attorney who could handle taking or defending depositions in this action. (Tr. 27:20-28:4.) In fact, Mr. Hoffman stated that

10 if it's not going to be me [conducting the depositions], then
11 Shaon Robinson needs to find himself another lawyer because
12 these people that I work with in my office will not be doing
13 this work for Mr. Robinson. I can promise you that. It ...

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