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Stokes v. City of Visalia

United States District Court, E.D. California

February 26, 2018

KIMBERLY RENEE STOKES, Plaintiff,
v.
CITY OF VISALIA, Defendant.

         ORDER DENYING DEFENDANT'S MOTION TO COMPEL PLAINTIFF TO BE PRODUCED FOR A DEPOSITION AS PREMATURE, DENYING DEFENDANT'S REQUEST FOR SANCTIONS, AND GRANTING IN PART PLAINTIFF'S MOTION FOR A PROTECTIVE ORDER ORDER VACATING MARCH 21, 2018 HEARING (ECF NOS. 31, 32)

         Currently before the Court is Defendant's motion to compel Plaintiff to be produced for a deposition and request for sanctions and Plaintiff's motion for a protective order regarding her deposition, filed on February 16, 2018. (ECF No. 31.)[1]

         On February 26, 2018, the Court vacated the February 28, 2018 hearing on Defendant's motion to compel and Plaintiff's motion for a protective order. (ECF No. 33.) As Plaintiff's February 22, 2018 motion for a protective order is the same as the February 16, 2018 motion, the Court will vacate the hearing on the February 22, 2018 motion which is set for March 21, 2018, at 9:30 a.m. and the parties will not be required to appear at that time.

         I.

         BACKGROUND

         On October 9, 2017, Plaintiff filed the complaint in this action. Plaintiff lives in the City of Visalia and is the owner of three dogs, one of which is named Armani, whose status is at issue in this action. (Complaint (“Compl.”) at ¶¶ 11-12.) On the morning of January 31, 2017, plaintiff's neighbor Stephen Stewart (“Stewart”) called Visalia Animal Control (“Animal Control”) complaining that Plaintiff's dogs had attacked his dogs. (Id. at ¶ 14.) Animal Control officer Murad Bayless (“Bayless”) went to Stewart's residence that day and wrote a report documenting the indecent, which included taking the statements of several eyewitnesses. (Id. at ¶ 15.) Plaintiff, who is a nurse and had been working the night shift the previous evening, was asleep in her home at the time of the incident. (Id. at ¶ 16.) While Plaintiff was sleeping, two of her dogs-Armani and Mademoiselle-had found a weak plank in Plaintiff's backyard fencing and crawled out. (Id. at ¶ 17.) Plaintiff's dogs had never escaped her yard before, and have not done so since. (Id.)

         After being awoken, Plaintiff went outside and found Mademoiselle sitting in the middle of the street. (Id. at ¶¶ 18-19.) Plaintiff then observed Armani sitting in Stewart's driveway. (Id. at ¶ 22.) Upon approaching, she saw Stewart and noticed that his hand was bleeding. (Id.) She then returned home with both of her dogs. (Id.) Shortly thereafter, Bayless went to Plaintiff's house and seized Armani and Mademoiselle. (Id. at ¶ 23.) Armani has remained at the Visalia Animal Control facility ever since. (Id.)

         Upon seizing Plaintiff's dogs, Bayless provided Plaintiff with several documents, which he collectively referred to as a “vicious hearing packet.” (Id. at ¶ 24.) One of these documents was entitled “Owner's Request for a Hearing, ” which stated in relevant part that Plaintiff would be required to pay $350 in order to receive an administrative hearing to attempt to secure the return of her dogs. (Id. at ¶¶ 24-25.) The form also provided that her failure to pay the fee would result in her request for hearing being considered invalid. (Id. at ¶ 25.)

         An administrative hearing was held on February 13, 2017. (Id. at ¶ 28.) Plaintiff and her two witnesses appeared at that time and attorney Thomas E. Hornburg (“Hornburg”), who was hired by Defendant, presided over the hearing. (Id. at ¶¶ 28-29.) At the outset of the hearing, Hornburg informed the participants that both Armani and Mademoiselle had been deemed “vicious” by Animal Control, and that the burden was on Plaintiff to establish that her dogs were not “vicious.” (Id. at ¶ 31.) He also informed the participants that the hearing would be conducted in an informal manner, and that he could consider any evidence he deemed relevant to the issues at hand, including hearsay evidence. (Id.) In addition, he informed the participants that there would be no cross-examination of witnesses. (Id.) Plaintiff and Stewart then recounted their recollections of the events at the hearing. (Id. at ¶¶ 33-54.)

         On February 14, 2017, Hornburg issued a written decision in which he concluded that Mademoiselle was not vicious and should be returned to Plaintiff, but that Armani was vicious and should be euthanized. (Id. at ¶¶ 56-57.) Plaintiff then filed a petition for a writ of mandate in the Tulare County Superior Court. (Id. at ¶ 60.) In May 2017, on the advice of her then-counsel, Plaintiff agreed to dismiss that petition in exchange for an agreement to have Armani evaluated by professional dog trainers. (Id. at ¶¶ 62-64.) Two behavior assessments that determined that Armani was not aggressive were submitted to Hornburg. (Id. at ¶ 65.) Defendants, in turn, submitted a declaration by Animal Control supervisor Ivy Ruiz stating that she had observed aggressive behavior by Armani. (Id. at ¶ 66.) After receiving Hornburg's second decision in late June 2017, Plaintiff terminated her prior counsel. (Id. at ¶¶ 62-64, 68.) Plaintiff then secured a new attorney who filed a motion to set aside the dismissal, which was granted, and Plaintiff's petition for a writ of mandate was reinstated in early July 2017. (Id. at ¶ 70.) On September 28, 2017, the Tulare County Superior Court denied the petition. (Id. at ¶ 71.) In her complaint, Plaintiff asserts that her due process rights under 42 U.S.C. § 1983 have been violated. First, she claims that she received inadequate notice regarding the February 13, 2017 administrative hearing. (Id. at ¶ 74.) Second, Plaintiff claims that the burden of proof was unlawfully shifted upon her to affirmatively prove that her dogs were not vicious. (Id. at ¶¶ 92-99.) Third, Plaintiff argues that she was unlawfully prohibited from cross-examining witnesses at the administrative hearing. (Id. at ¶¶ 100-107.) Fourth, Plaintiff argues that Hornburg was biased in favor of Defendant at the hearing. (Id. at ¶¶ 108-116.) Finally, Plaintiff claims that Hornburg and Defendant engaged in unlawful ex parte communication prior to the hearing. (Id. at ¶¶ 117-120.) Plaintiff seeks monetary damages and injunctive relief. (Id. at ¶¶ 121-129.)

         On February 16, 2018, Defendant filed a notice of motion and motion for Defendant's motion to compel and request for sanctions and Plaintiff's motion for a protective order. (ECF No. 31.) The parties' joint statement for these motions was attached to the motion. (ECF No. 31-1.) On February 22, 2018, Plaintiff filed a notice of motion and motion for a protective order, which is the same as the February 16, 2018 motion. (ECF No. 32.) The February 22, 2018 motion is also based on the February 16, 2018 joint statement.

         II.

         STANDARD

         Motions to compel are governed by Federal Rule of Civil Procedure 37, which states, in pertinent part:

(a) Motion for an Order Compelling Disclosure or Discovery. (1) In General. On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.

Fed. R. Civ. P. 37.

         Depositions are governed by Federal Rule of Civil Procedure 30, which states:

(a) When a Deposition May Be Taken.
(1) Without Leave. A party may, by oral questions, depose any person, including a party, without leave of court except as provided in Rule 30(a)(2). The deponent's attendance may be ...

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