United States District Court, E.D. California
ORDER DISCHARGING OSC; GRANTING DEFENDANTS'
MOTION TO COMPEL; DENYING PLAINTIFF'S MOTION FOR A
PROTECTIVE ORDER and MOTION TO STAY; RESETTING HEARING ON
PLAINTIFF'S MOTION TO AMEND (ECF Nos. 146, 153, 155,
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.
case concerns Plaintiff's allegations of wrongful
revocation of his real estate license, as against individual
employees of the Department (“Bureau”) of Real
Estate. (See ECF No. 136 at p. 2.) There
are four issues properly before the Court: (I) The
Court's Order to Show Cause; (II) Defendants' Motion
to Compel Plaintiff to Sit for an Oral Deposition and (III)
Plaintiff's related Motion for a Protective Order; and
(IV) Plaintiff's Motion to Alter or Amend a Previous
Scheduling Order. For the reasons discussed below, the Court:
(I) DISCHARGES the Order to Show Cause and LIFTS the stay
(II) GRANTS Defendants' motion to compel, ORDERS
Plaintiff to sit for an oral deposition (ECF 153) and DENIES
Plaintiff's motion for a protective order (ECF 155);
(III) RESETS the schedule for Plaintiff's Motion to Alter
or Amend (ECF 152); and
(IV) DENIES without prejudice Plaintiff's Motion to Stay
and Procedural Posture
filed his first amended complaint in April of 2016, alleging
among other things a violation of his constitutional rights
due to the revocation of his real estate license.
(See ECF Nos. 1, 6.) Prior to this case,
Plaintiff's dispute with the Bureau and related
individuals wound its way through the California State Court
system. (See ECF No. 6 at ¶¶ 19-112 for
Plaintiff's full recounting.) Since 2015, the instant
case has seen multiple rounds of dismissal motions, a
narrowing of the claims, and the addition and dismissal of
multiple defendants. (ECF Nos. 7, 11, 43, and 74). Currently,
Plaintiff maintains claims against seven individual employees
of the Bureau, for violations of his constitutional rights
(42 U.S.C. § 1983 and Cal. Gov. Code § 52.1), and
Falsifying a Record/Perjury (Cal. Gov. Code § 820.21).
(See ECF No. 136 at p. 2.)
December 2018, the case was reassigned to the undersigned.
(ECF No. 130.) A scheduling order was issued, setting the
close of fact discovery for October 18, 2019. (ECF No. 136 at
p. 4.) On October 8, 2019, Defendants requested an extension,
as emails showed Plaintiff had been non-responsive to
Defendants' attempts to schedule Plaintiff's
deposition. (ECF No. 149.) The Court granted the request, and
ordered Plaintiff's deposition to be completed by the end
of December of 2019. (ECF No. 151.) On December 4, Defendants
filed a motion to compel, arguing Plaintiff has refused to
sit for an oral deposition. (ECF No. 153.) Plaintiff offered
multiple opposing arguments in his motion to alter the
scheduling order (ECF No. 152), his opposition brief (ECF No.
154), and his motion for a protective order (ECF No. 155).
Plaintiff failed to show for the December hearing on
Defendants' motion to compel, so the Court ordered
Plaintiff to Show Cause, and Plaintiff responded. (ECF No.
158, 159, 160.)
Plaintiff has (at various points in this litigation) also
attempted to renew a TRO issued by a California court against
a third party concerning his eviction from his home. (ECF No.
89.) This relief was denied by this court and dismissed on
interlocutory appeal. (ECF Nos. 89, 93, 118.) In August 2019,
Plaintiff filed an ex parte motion--without noticing it for a
hearing--to stay the case so he could file another
interlocutory appeal. (ECF No. 146.) The Court instructed
Plaintiff to properly notice it, which Plaintiff has not
done. (ECF No. 147.)
argue that since Plaintiff has filed claims against them
concerning the revocation of his real estate license,
Plaintiff's testimony is relevant to their defenses.
See Federal Rule of Civil Procedure 30 (“A
party may, by oral questions, depose any person, including a
party, without leave of court except as provided in Rule
30(a)(2)”). Defendants contend they attempted to confer
with Plaintiff--between June and December 2019--about
potential times to conduct the deposition. Defendants assert
Plaintiff has simply refused to confer on timing, much less
sit for the deposition. In support, Defendants submit a
number of emails between Counsel and Plaintiff, as well as
other documents showing Plaintiff has refused to be deposed.
(ECF No. 153-1.) Defendants therefore contend that given
Plaintiff's recalcitrance, they have no choice but to
move for a court order to compel Plaintiff to sit for an oral
deposition. See Fed.R.Civ.P. 37(a)(3)(B)(i).
Plaintiff's recent filings, he offers a number of reasons
why a deposition is improper:
- Defendants have already served over 100 discovery requests,
so a deposition is unreasonable and oppressive. Because of
this fact, Rule 30(d)(3)(A) requires the suspension of the
deposition until an order compelling the deposition is
- Plaintiff's motion to amend the previous scheduling
order has not been resolved, was granted in derogation of the