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Gonzalez v. Department (Bureau) of Real Estate

United States District Court, E.D. California

January 15, 2020

DANIEL GONZALEZ, Plaintiff,
v.
DEPARTMENT (BUREAU) OF REAL ESTATE., et al. Defendants.

          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, 158)

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.

         This case concerns Plaintiff's allegations of wrongful revocation of his real estate license, as against individual employees of the Department (“Bureau”) of Real Estate.[1] (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 (ECF 158);
(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 (ECF 146).

         Background and Procedural Posture

         Plaintiff 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.)

         In 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.)

         Additionally, 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.)

         Parties' Arguments

         Defendants 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).

         In 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 issued;
- Plaintiff's motion to amend the previous scheduling order has not been resolved, was granted in derogation of the court's ...

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