Valiavacharska v. Celaya et al

Filing 149

ORDER FOR PLAINTIFF'S COUNSEL TO SHOW CAUSE. Order to Show Cause Hearing set for 3/23/2012 at 09:00 AM, 15th Floor, Courtroom F in San Francisco. Signed by Magistrate Judge Jacqueline Scott Corley on 2/13/2012. (ahm, COURT STAFF) (Filed on 2/13/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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Northern District of California

United States District Court

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ZHIVKA VALIAVICHARSKA,
Plaintiff,

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Case No.: CV 10-4847 JSC
ORDER FOR PLAINTIFF’S
COUNSEL TO SHOW CAUSE

v.

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MITCH CELAYA, et al.,
Defendant.

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On October 27, 2011, Plaintiff‟s counsel, Mr. Steven Yourke, electronically filed a

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declaration from Plaintiff in opposition to Defendants‟ motion for summary judgment. The

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declaration was signed by Plaintiff under penalty of perjury. (Dkt. No. 50.) Plaintiff states in

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her declaration: “I put my hand on top of the barricade and shook it.” (Dkt. No. 50 ¶ 5.)

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During her sworn trial testimony on February 7, 2012, Plaintiff stated: “I don‟t particularly

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recollect [shaking the barricade], but I‟m saying I may have been shaking the barricade.”

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(Trial Tr., Feb. 7, 2012 (Valiavicharska) at 7: 17-18.) Defendant subsequently attempted to

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impeach Plaintiff with her unequivocal declaration statement. (Id. at 11: 10-15.) Plaintiff,

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after examining her declaration at some length, stated: “I hadn‟t actually seen that document,

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but it was filed on my behalf.” (Id.) Out of the presence of the jury, and upon questioning

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from the Court, Mr. Yourke issued the following explanation for Plaintiff‟s failure to have

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seen her declaration prior to her testimony at trial:

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[T]o the best of my recollection, I did speak with her [Plaintiff] telephonically, told her
what I was doing. I was preparing a declaration for her. I believe I read it to her or at
least explained what the substance of the declaration was and would it be okay if I were
to sign it on her behalf. And she said, „Yes.‟ . . . I don‟t believe I sent it to her for
review before getting her authorization, but I certainly discussed it with her on the
phone and told her what it was and what it was for.
(Partial Trial Tr., 2-7-12 at 2:19-24, 3:2-5.)
client “shall attest that concurrence in the filing of the document has been obtained” from the

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signatory and “shall maintain records to support this concurrence for subsequent production

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Northern District of California

General Order 45 §10(B) requires that an attorney filing a declaration on behalf of his

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United States District Court

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for the court if so ordered.” Based on the evidence now before the Court, Mr. Yourke did not

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obtain the required concurrence prior to filing this declaration on behalf of Plaintiff. Mr.

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Yourke is therefore ordered to show cause, including production of any records in support of

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Plaintiff‟s concurrence, by February 27, 2012 as to why he should not be sanctioned for his

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failure to comply with General Order 45 §10(B). Such sanctions may include referral to the

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Standing Committee on Professional Conduct, the Chief Judge, or another appropriate

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disciplinary authority in California or the Northern District. See L.R. 11-6 (a). Defendant

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shall file a response, if any, by March 12, 2012. A hearing on this Order To Show Cause will

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be held March 23, 2012 at 9:00 a.m.

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IT IS SO ORDERED.
Dated: February 13, 2012

_________________________________
JACQUELINE SCOTT CORLEY
UNITED STATES MAGISTRATE JUDGE

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