Adams v. Albertson et al

Filing 110

ORDER PARTIALLY GRANTING MOTION TO QUASH SUBPOENAS WITHOUT PREJUDICE TO RE-ISSUANCE OF MODIFIED SUBPOENA, GRANTING MOVANT'S MOTION FOR JUDICIAL NOTICE, AND VACATING HEARING by Judge William Alsup [granting in part and denying in part 96 Motion to Quash]. (whasec, COURT STAFF) (Filed on 10/19/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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MARK LETELL ADAMS,

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For the Northern District of California

United States District Court

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Plaintiff,
v.
RONALD ALBERTSON individually in his
official capacity as a former San Carlos Police
Sergeant, MICHAEL ANDERSON individually
in his official capacity as a former San Carlos
Police Officer, JUSTIN COUNCIL individually
in his official capacity as a former San Carlos
Police Officer, GREG ROTHAUS individually
in his official capacity as a former San Carlos
Police Chief, CITY OF SAN CARLOS, CITY
OF SAN CARLOS POLICE DEPARTMENT,
and DOES 1-100,

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/

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ORDER PARTIALLY
GRANTING MOTION
TO QUASH SUBPOENAS
WITHOUT PREJUDICE
TO RE-ISSUANCE OF
MODIFIED SUBPOENA,
GRANTING MOVANT’S
MOTION FOR JUDICIAL
NOTICE, AND VACATING
HEARING

Defendants.

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No. C 10-04787 WHA

INTRODUCTION
In this civil rights action, defendant City of San Carlos moves to quash subpoenas served
by plaintiff. For the following reasons, defendant’s motion will be GRANTED WITHOUT
PREJUDICE to

re-issuance of a modified subpoena.

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STATEMENT

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Plaintiff Mark Letell Adams seeks to establish a pattern and practice of disparate

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treatment on the basis of his status as African-American. On April 23, 2010, plaintiff’s wife

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was treated at the Palo Alto Medical Foundation health clinic by Dr. Sung Hui Knueppel.

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Following the appointment, Dr. Knueppel called the San Carlos Police Department and reported

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her suspicion that a domestic violence incident had occurred. Later that afternoon, two SCPD

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officers conducted a welfare check at plaintiff’s home. After speaking with both plaintiff and

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his wife, the officers arrested plaintiff and charged him with felony domestic assault (Second

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Amd. Compl. ¶¶ 13, 14, 18–22).

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Ultimately, no domestic violence complaint was filed by plaintiff’s wife, and the felony

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domestic violence case against him was not prosecuted. An order exonerating plaintiff’s bail

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was entered in June 2010. Plaintiff then filed and litigated a motion for judicial finding of

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factual innocence with respect to his arrest. This motion was denied. Plaintiff also filed a
government claim against the City of San Carlos, which was also denied (id. at ¶¶ 46–47, 85,

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For the Northern District of California

United States District Court

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92).

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Plaintiff, who is proceeding pro se, filed this action in October 2010. A February 2011

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order dismissed all claims against four of seven defendants with prejudice. Plaintiff then filed a

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second amended complaint, which added two more defendants (Dkt. 90). Plaintiff’s second

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amended complaint, which is now operative, asserts six claims for relief: (1) unlawful search of

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plaintiff’s home by the SCPD officers in violation of the Fourth Amendment; (2) unlawful

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detention and interrogation by the officers in violation of the Fifth and Fourteenth Amendments;

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(3) denial of due process in detaining plaintiff in violation of the Fourth, Fifth, Sixth, Eighth,

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and Fourteenth Amendments; (4) fraud and false statements in violation of 18 U.S.C. 1018;

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(5) conspiracy to violate plaintiff’s civil and constitutional rights; and (6) defamation and

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interference with family relationships. Plaintiff’s fifth claim for relief is asserted in part against

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the City of San Carlos — the movant in the present action.

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On September 6, 2011, plaintiff issued subpoenas to four members of the San Carlos

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city council requiring them to appear and testify in depositions. While the City is named as

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a defendant in the present action, the deponents were not named individually as defendants.

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The subpoenas also ordered the production of the following categories of documents: (1) all city

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council policy decisions regarding the SCPD; (2) detailed SCPD arrest statistics spanning the

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past ten years; (3) all correspondence written to or received from plaintiff; and (4) meeting
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minutes from the closed city council meeting pertaining to the denial of plaintiff’s government

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claim. The City now moves to quash these subpoenas, claiming that they cause an undue burden

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and are only meant to harass the city council members. This order follows full briefing.

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ANALYSIS

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Parties may obtain discovery regarding any non-privileged matter that is relevant to

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a party’s claim or defense. FRCP 26(b)(1). The court may, however, limit the frequency

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or extent of discovery if the burden of the proposed discovery outweighs its likely benefit.

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FRCP 26(b)(2)(C)(iii). The court must enforce the parties’ duty to avoid imposing undue burden

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or expense on a person subject to a subpoena. FRCP 45(c)(1).
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DEPOSING FOUR CITY COUNCIL MEMBERS
WOULD CREATE AN UNDUE BURDEN.

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Movant argues that deposing the volunteer city council members is improper because
For the Northern District of California

United States District Court

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they have no personal knowledge of plaintiff’s arrest (Br. 4). Movant also alleges that the vast
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majority of decision-making power in the City of San Carlos rests with the City Manager, not
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the city council. Further, movant claims that the policy for the SCPD is created by the police
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chief — whom plaintiff has already deposed (id. at 7). Plaintiff claims to have issued the
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subpoenas to discover the extent of the city council members’ policy-making role, and because
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the city council controls the training of the SCPD in domestic violence policy (Opp. 4).
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Additionally, plaintiff seeks information about why the city council denied his government claim
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(Master Exh. B). Presumably, plaintiff seeks to depose the four city council members to gather
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evidence in support of his fifth claim for conspiracy, as this is the only claim in the operative
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complaint that references the City of San Carlos.
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The limited amount of relevant information plaintiff is likely to glean from these
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depositions is outweighed by the burden of deposing four individual city council members who
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played no role in plaintiff’s arrest. As the point of plaintiff’s subpoenas is to gather information
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about the policy decision-making within the City, plaintiff must select only one city council
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member — or the City Manager, who also plays a role in policy development — to represent the
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City of San Carlos in a deposition. Accordingly, the motion to quash the subpoenas is GRANTED
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WITHOUT PREJUDICE to

re-serving a subpoena requiring a single representative of the City of

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San Carlos to testify in a deposition.
PLAINTIFF CANNOT OBTAIN DISCOVERY OF PRIVILEGED DOCUMENTS.

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2.

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Plaintiff’s subpoenas also request production of the records or minutes from the closed

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city council session during which the decision to deny plaintiff’s government claim was made.

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Movant argues that the City Attorney was present during those sessions and offered his guidance

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and counsel, thus those communications are protected by the attorney-client privilege.

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Additionally, movant argues that because the city council members made the statements in the

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discharge of their official duties, the statements are privileged under California Civil Code
Section 47(a) (Br. 7). This order agrees on both accounts. Plaintiff cannot discover the

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For the Northern District of California

United States District Court

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privileged communications that took place during the closed city council session. Movant does

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not challenge any other category of documents. The subpoena request for minutes or records

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from the closed city council session is QUASHED.

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3.

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FRCP 45(b)(1) requires tender of a witness fee and mileage at the time of service of a

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subpoena. Movant argues that all four subpoenas must be quashed because plaintiff failed to

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provide witness fees when serving the city council members. Plaintiff is hereby put on notice

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that the force of his re-issued subpoena is contingent on his payment of the witness fee and

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mileage. In order to depose a witness, plaintiff must adhere strictly to FRCP 45(b)(1).

PLAINTIFF MUST PROVIDE WITNESS FEES.

MOVANT’S REQUEST FOR JUDICIAL NOTICE.

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4.

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Movant requests that judicial notice be taken of three items: (1) California Penal

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Code Section 851.8; (2) the order denying plaintiff’s motion for a finding of factual innocence

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regarding his arrest; and (3) the City of San Carlos Municipal Code Section 2.040.060.

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A judicially noticed fact must be one not generally subject to reasonable dispute that is

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either generally known within this territorial jurisdiction or is capable of accurate and ready

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determination by resort to sources whose accuracy cannot reasonably be questioned. FRE

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201(b). Two of these items are statutes, and one is a matter of public record. All of them

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can be readily and accurately determined by sources whose accuracy cannot be questioned.

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Accordingly, movant’s request for judicial notice is GRANTED.

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CONCLUSION
All four subpoenas are QUASHED. Going forward, plaintiff must select only one

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representative of the City of San Carlos to depose regarding policy matters for a period of

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ninety minutes of deposition time. Plaintiff must re-serve the single person he selects with

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witness fees and comply with FRCP 45. Plaintiff cannot request production of privileged

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documents. The document subpoena request for meeting minutes from the closed city council

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session is QUASHED. As the other document categories were not challenged, they are not
quashed. Movant’s request for judicial notice is GRANTED. The hearing scheduled for

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For the Northern District of California

United States District Court

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October 27 is VACATED.

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IT IS SO ORDERED.

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Dated: October 19, 2011.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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