E.S., et al. v. County of Tulare, et al.

Filing 69

ORDER Denying Defendants' Ex Parte Application for Order to Show Cause Why a Contempt Citatiion Should Not Issue (Doc. 66). signed by Magistrate Judge Barbara A. McAuliffe on 7/2/2015. (Herman, H)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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E.S., a minor, et al.,
Plaintiffs,

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v.
CITY OF VISALIA; TIM HAENER,
and DOES 2-10, inclusive,

CASE NO.: 1:13-cv-01697-LJO-BAM
ORDER DENYING DEFENDANTS’ EX
PARTE APPLICATION FOR ORDER TO
SHOW CAUSE WHY A CONTEMPT
CITATION SHOULD NOT ISSUE
(Doc. 66)

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Defendants.
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On June 17, 2015, Defendants City of Visalia and Tim Haener (“Defendants”) filed
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an application for an order to show cause why third-party witness Danny Ceballos (“Mr.
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Ceballos”) should not be held in civil contempt for failure to appear at his June 8, 2015
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deposition pursuant to subpoena. (Doc. 66.) On June 26, 2015, the Court directed Plaintiffs
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to file a response to the ex parte application. (Doc. 67.) On June 30, 2015, Plaintiffs filed
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the declaration of Mr. Ceballos. (Doc. 68.)
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For the reasons that follow, Defendants’ ex parte application shall be denied.
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I. Background
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Plaintiffs initiated this civil rights action, arising from the fatal police shooting of
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Armando Santibanez, on October 21, 2013. (Doc. 1.) This action proceeds on Plaintiff’s
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third amended complaint. (Doc. 46.)
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On June 30, 2014, the Court issued a Scheduling Conference Order, which provided
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that all non-expert discovery, including motions to compel, must be completed no later than
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June 16, 2015. The order also cautioned the parties that their “failure to have a discovery

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dispute heard sufficiently in advance of the discovery cutoff may result in denial of the

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motion as untimely.” (Doc. 41, p. 3.)

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On June 12, 2015, the Court held an informal telephonic conference regarding

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Defendants’ request to modify the Scheduling Conference Order to complete additional

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depositions, which presumptively included Mr. Ceballos’ deposition.

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Defendants failed to establish good cause for modifying the Scheduling Conference Order,

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the Court denied Defendants’ request to extend the discovery deadline to complete

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additional depositions. (Doc. 26.)

Finding that

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On June 17, 2015, after expiration of the discovery deadline, Defendants filed the

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instant ex parte application for an order to show cause why a contempt citation should not

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issue against Mr. Ceballos for his reported failure to comply with a subpoena to attend his

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deposition. Mr. Ceballos’ deposition was noticed for June 8, 2015. (Doc. 66.)

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On June 26, 2015, the Court directed Plaintiffs to file a response to the application.
(Doc. 67.)

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On June 30, 2015, Plaintiffs submitted the declaration of Mr. Ceballos in opposition

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to the ex parte application. Mr. Ceballos declares under penalty of perjury that he has not

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been served with any documents for this lawsuit. (Doc. 68 at ¶ 11.)

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II. Discussion
A. Defendants’ Position

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Defendants report that a deposition subpoena was issued on May 27, 2015, and sent

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out for service on Mr. Ceballos for a deposition to take place on June 8, 2015. (Doc. 66-2,

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Ex. A.) On May 30, 2015, a claims investigator arrived at 926 S. Indiana Street, in

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Porterville, California, to serve the subpoena on Mr. Ceballos. The investigator reportedly

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saw Mr. Ceballos standing between four vehicles parked in the driveway. Mr. Ceballos was

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identified by comparing his face to photographs from his Facebook page. When Mr.

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Ceballos saw the investigator, he immediately took off running into the house.

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investigator went to the front door and knocked. Although he could hear people talking and

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The

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moving around, the investigator could not get anyone to open the door. All of the windows

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had black shades blocking the view inside and there appeared to be a surveillance camera

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above the front porch. (Doc. 66-3, Decl. of Russell Hilyard at ¶¶ 2-5.)

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The investigator then called a cellular phone number associated with Mr. Ceballos,

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[phone], and could hear a phone ringing inside of the home. The call went to an

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automated response and no message could be left. The investigator called the number two

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more times. The next attempt was heard ringing from inside the residence and went to the

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automated message. The last attempt went directly to the automated message. (Id. at ¶ 6.)

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On June 5, 2015, the investigator returned to 926 S. Indiana Street. When he drove

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by, the investigator saw Mr. Ceballos standing outside talking to other males his age. The

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investigator parked a distance from the home and walked to where he could see Mr.

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Ceballos and his companions. After some time, a couple of the males left in a silver truck.

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(Id. at ¶ 7.)

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At 6:35 p.m., the investigator walked into the yard and said “Danny.” When Mr.

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Ceballos turned, the investigator told him he had a subpoena for him and held it out. Mr.

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Ceballos yelled at the investigator to get off his property and appeared angry. Mr. Ceballos

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began to walk towards the investigator, who set the subpoena down and let Mr. Ceballos

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know that he had been served. Mr. Ceballos said that the paper meant nothing to him. The

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investigator then left the area. Approximately 15 minutes later, the investigator drove by the

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home and saw small pieces of paper where he had set the subpoena down. (Id. at ¶¶ 8-9.)

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Mr. Ceballos failed to appear for his deposition on June 8, 2015. (Doc. 66-2, Decl.
of Leonard C. Herr at ¶ 5.)
B. Mr. Ceballos’ Position

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In response, Mr. Ceballos declares under penalty of perjury that he never fled from

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any process server on May 30, 2015, or on any date. (Doc. 68, Decl. of Danny Ceballos at ¶

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3.) The phone number that the investigator called has not been Mr. Ceballos’ phone number

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since at least January 2015, and Mr. Ceballos has no surveillance cameras at his residence.

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(Id. at ¶¶ 12, 13.) The investigator’s statement regarding the interaction on June 5, 2015,

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never happened with Mr. Ceballos. (Id. at ¶ 7.) Instead, Mr. Ceballos reports that he

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worked at Vallarta, a supermarket, until about 4:30 p.m. that day. He stopped by his

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residence to pick up his children and then went directly to Bridget Flores’ apartment on E

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Street. Mr. Ceballos was at her apartment by 5:00 p.m. Mr. Ceballos then drove from

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Bridget Flores’ apartment to Tulare, with Ms. Flores and his children. He left the city of

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Porterville around 6:15 p.m. so that he could be in Tulare by 7:00 p.m. Mr. Ceballos was

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meeting his father and others at Puerto Vallarta, a restaurant in Tulare, to celebrate his

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father’s birthday. It takes approximately 45 minutes to drive from Porterville to Tulare. (Id.

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at ¶¶ 8-10.) Mr. Ceballos reports that as of June 30, 2015, he has not been served with any

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documents for this lawsuit. (Id. at ¶ 11.)
C. Analysis

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As a preliminary matter, Defendants’ ex parte application is untimely. As noted

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above, the non-expert discovery deadline expired on June 16, 2015. In contravention of the

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Scheduling Order, Defendants filed the instant application after the expiration of the

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relevant deadline. Defendants provide no explanation for the delay. More importantly,

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Defendants provide no explanation as to why they elected to file this application following

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the informal discovery conference. During that conference, the Court expressly determined

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that the non-expert discovery deadline would not be extended for the purpose of taking

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additional depositions.

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Furthermore, even if Defendants’ application was timely, Defendants have failed to

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establish that they complied with Federal Rule of Civil Procedure 45(b)(1) regarding the

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tendering of witness fees and service of the subpoena. Pursuant to Rule 45(b), serving a

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subpoena “requires delivering a copy to the named person and, if the subpoena requires that

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person’s attendance, tendering the fees for 1 day’s attendance and the mileage allowed by

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law.” Fed. R. Civ. P. 45(b)(1).

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Here, the proof of service of the subpoena to testify at the deposition indicates that
no witness fees or mileage were tendered to Mr. Ceballos. (Doc. 66-2, Ex. C.)
Additionally, Defendants have not established that they properly served the

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deposition subpoena on Mr. Ceballos.

As noted above, serving a subpoena requires

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“delivering a copy to the named person,” which is interpreted to mean personal service. Fed.

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R. Civ. P. 45(b)(1); see Morgutia-Johnson v. City of Fresno, No. 1:14-cv-00127-LJO-SKO,

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2015 WL 1021123, at *2-3 (E.D. Cal. Mar. 9, 2015) (serving subpoena requires personal

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service); Prescott v. Cnty. of Stanislaus, No. 1:10–cv–00592 JLT, 2012 WL 10617, at *3

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(E.D. Cal. Jan. 3, 2012) (noting that a majority of courts interpreting “delivering” to require

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personal service).

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In this instance, Mr. Ceballos has refuted Defendants’ claim that they served him

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with a deposition subpoena on June 5, 2015. According to Mr. Ceballos’ sworn declaration,

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he was not at his home at 6:35 p.m. on June 5, 2015, the date he was reportedly served, and

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he has not been served with any documents for this lawsuit. (Doc. 68, Decl. of Danny

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Ceballos at ¶¶ 9, 11.)

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possessing the phone number reportedly called by the investigator. (Id. at ¶¶ 3, 12.) As

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there is no indication that Defendants in fact personally served Mr. Ceballos with a

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deposition subpoena, they are not entitled to a contempt order. Fed. R. Civ. P. 45(g); see,

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e.g., Morgutia-Johnson, 2015 WL 1021123, at *2-3 (citing FTC v. Enforma Natural

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Products, Inc., 362 F.3d 1204, 1211 (9th Cir. 2004), (proper subpoenas are treated as orders

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of the court; to establish civil contempt, moving party must show by clear and convincing

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evidence that non-moving party violated a specific order of the court). Therefore, an order

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to show cause is unnecessary.

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Mr. Ceballos also has denied fleeing from the investigator or

III. Conclusion and Order
Based on the foregoing, Defendants’ ex parte application for order to show cause

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why a contempt citation should not issue, filed on June 17, 2015, is HEREBY DENIED.

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IT IS SO ORDERED.

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Dated:

/s/ Barbara A. McAuliffe

July 2, 2015

UNITED STATES MAGISTRATE JUDGE

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