Hupp v. San Diego County District Attorney et al

Filing 259

ORDER: (1) Denying 154 Motion to Compel Discovery from San Diego County, James Patrick Romo, and Peter Myers; (2) Denying as Moot 160 Motion for Protective Order on Behalf of Defendants County of San Diego, James Romo and Peter Myers. Signed by Magistrate Judge Ruben B. Brooks on 6/3/2014. (All non-registered users served via U.S. Mail Service)(srm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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PAUL HUPP,

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Plaintiff,
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v.
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SAN DIEGO COUNTY, SAN DIEGO
POLICE DEPARTMENT, et al.,

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Defendants.

Civil No. 12cv0492 GPC(RBB)

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ORDER
(1) DENYING MOTION TO COMPEL
DISCOVERY FROM SAN DIEGO
COUNTY, JAMES PATRICK ROMO,
AND PETER MYERS [ECF NO. 154];
AND
(2) DENYING AS MOOT MOTION FOR
PROTECTIVE ORDER ON BEHALF OF
DEFENDANTS COUNTY OF SAN
DIEGO, JAMES ROMO AND PETER
MYERS [160]

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Plaintiff Paul Hupp’s Motion to Compel Discovery on San Diego
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County, James Patrick Romo and Peter Myers [ECF No. 154] (“Motion
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to Compel”) was filed nunc pro tunc to September 5, 2013.
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Defendants filed their response in opposition [ECF No. 172], and
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Hupp filed a reply [ECF No. 185].
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On September 27, 2013, Defendants San Diego County, James Romo
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and Peter Myers filed a Motion for Protective order [ECF No. 160].
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Plaintiff opposes the motion [ECF No. 169].

Defendants filed a

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reply in support of the motion [ECF No. 177].
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12cv0492 GPC(RBB)

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The hearing on the motions was set for October 28, 2013.

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Court determined the matters to be suitable for resolution without

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oral argument, submitted the motions on the parties’ papers

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pursuant to the Local Civil Rule 7.1(d), and vacated the motion

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hearing [ECF No. 181].

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Motion to Compel is DENIED, and Defendants’ Motion for Protective

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Order is DENIED as moot.

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For the following reasons, Plaintiff’s

I.

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The

FACTUAL BACKGROUND

Plaintiff Paul Hupp, proceeding pro se, commenced this action

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on February 28, 2012, pursuant to 42 U.S.C. § 1983.

(Compl. 1, ECF

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No. 1.)

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28, 2012 [ECF No. 64], naming as Defendants San Diego County,1 City

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of San Diego, City of Beaumont,2 James Patrick Romo,3 Raymond

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Wetzel, William Kiernan,4 Peter Myers,5 and Joseph Cargel.

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Am. Compl. 1, ECF No. 64.)

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of court charges and conviction in San Diego Superior Court in

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2011.

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//

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//

Plaintiff’s Third Amended Complaint was filed on August

(Third

Hupp’s action arises from his contempt

(See id. at 4-5, 7-8.)

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Plaintiff’s causes of action against the County are based on
the allegations against the San Diego District Attorney’s Office,
San Diego County Office of Assigned Counsel, and the San Diego
Sheriff’s Department. (Third Am. Compl. 2, ECF No. 64.)

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2

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Defendant City of Beaumont was dismissed from this case on
December 10, 2012 [ECF No. 105].
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Defendant Romo was dismissed from the case on January 9,
2014 [ECF No. 221].

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4

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Defendant Kiernan was dismissed from the case on December
16, 2013 [ECF No. 210].
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Defendant Myers was dismissed from the case on January 30,
2014 [ECF No. 228].
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12cv0492 GPC(RBB)

Plaintiff alleges that in November 2010, Jeffrey Freedman6

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obtained a three-year restraining order against Hupp in San Diego

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Superior Court.

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contempt charges against Hupp for sending letters to Freedman in

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violation of the restraining order.

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Kiernan, an attorney from the San Diego County Office of the

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Assigned Counsel, was appointed to represent Hupp.

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alleges that Kiernan failed to investigate the case, request

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discovery, and communicate with Hupp; and Kiernan’s lack of

(Id. at 4.)

In July 2011, Freedman brought

(Id. at 5.)

Defendant William

(Id.)

Hupp

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preparation amounted to ineffective assistance of counsel.

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6-7.)

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fingerprint tests on the letters and envelopes allegedly sent by

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him, but Defendants wrongfully withheld this exculpatory forensic

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evidence until February 2012, when they produced the evidence in

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another court case.

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(Id. at

Plaintiff also claims that Defendants performed DNA and

(Id. at 11-12.)

Plaintiff claims that he was wrongfully convicted based on

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insufficient evidence and sentenced to twenty-five days in custody,

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and a $5,000 fine was imposed.

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trial judge improperly denied him custody credits under California

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Penal Code section 4019.

(Id. at 7.)

Hupp alleges that the

(Id. at 8.)

On January 3, 2012, Hupp reported to the San Diego Sheriff’s

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Department to serve his twenty-five day sentence.

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Plaintiff claims that he told the Sheriff’s Department personnel

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that they had to apply to apply Penal Code section 4019 credits to

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his sentence, but they refused to do so.

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//

(Id.)

(Id. at 9.)

Hupp also alleges

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All claims against Defendant Freedman in this case have been
dismissed [ECF No. 35].
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he was denied access to the law library and was prevented from

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filing legal papers.

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(Id. at 10-11.)

Plaintiff contends that Defendants never informed him that the

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San Diego District Attorney’s office, San Diego Police Department,

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Deputy District Attorney Romo, and Detective Wetzel were

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investigating and assisting Deputy Attorney General Drcar in

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prosecuting the November 2011 civil contempt proceedings against

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Hupp.

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disclose exculpatory DNA and fingerprint evidence obtained from the

(Id. at 7, 11.)

Hupp also asserts that Defendants failed to

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letters Freedman received, in violation of Plaintiff’s due process

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rights under Brady v. Maryland, 373 U.S. 83 (1963).

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12.)

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(Id. at 11-

On the basis of these allegations, Plaintiff brought claims

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for violation of civil rights; conspiracy to withhold Brady

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evidence; interference with legal mail and free speech; unlawful

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detention; intentional infliction of emotional distress; as well as

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gross negligence in the hiring, training, supervision, and

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retention of prosecutors and peace officers.

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Hupp also alleged that Defendants’ actions caused him emotional and

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psychological injuries, embarrassment, humiliation, shame, fright,

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fear, and grief.

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seeks compensatory and punitive damages exceeding $75,000, as well

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as declaratory and injunctive relief.

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(Id. at 14, 20-21.)

(See id. at 12-29.)

For his injuries, Plaintiff

(Id. at 35-37.)

After the rulings on Defendants’ substantive motions, the

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following claims remain in the case:

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“Brady” evidence, asserted against Defendants San Diego Police

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Department and Wetzel (claim one); (2) conspiracy to withhold

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“Brady” evidence, brought against Defendants San Diego Police

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(1) the withholding of

12cv0492 GPC(RBB)

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Department and Wetzel (claim two); (3) declaratory and injunctive

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relief against San Diego Sheriff’s Department for the denial of

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section 4019 credits (claim eleven); and (4) interference with

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Plaintiff’s free speech, right to petition the government, and

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legal proceedings due to the wrongful search and seizure by San

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Diego District Attorney’s Office and Cargel (claim twelve7).

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II.

LEGAL STANDARDS

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A.

Motion to Compel Discovery

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“Parties may obtain discovery regarding any nonprivileged

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matter that is relevant to any party's claim or defense . . . .

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Relevant information need not be admissible at the trial if the

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discovery appears reasonably calculated to lead to the discovery of

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admissible evidence.”

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Federal Rules of Civil Procedure enables the propounding party to

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bring a motion to compel responses to discovery.

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37(a)(3)(B).

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opposing disclosure.

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Cal. 1992).

Fed. R. Civ. P. 26(b)(1).

Rule 37 of the

Fed. R. Civ. P.

The party resisting discovery bears the burden of
Miller v. Pancucci, 141 F.R.D. 292, 299 (C.D.

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As the moving party, Hupp must identify (1) the discovery

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requests that are the subject of his motion to compel, (2) which of

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the defendants' responses are disputed, (3) why the responses are

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deficient, (4) the reasons defendants' objections are without

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merit, and (5) the relevance of the requested information to the

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prosecution of this action.

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S–03–2343 JAM EFB P, 2009 WL 331358, at *2 (E.D. Cal. Feb. 10,

See, e.g., Brooks v. Alameida, No. CIV

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On September 17, 2013, the Court stayed § 1983 claims
related to the search and seizure of Plaintiff’s property alleged
in claim twelve of the Third Amended Complaint pending resolution
of the state criminal proceedings against Hupp [ECF No. 156].
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12cv0492 GPC(RBB)

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2009) (“Without knowing which responses plaintiff seeks to compel

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or on what grounds, the court cannot grant plaintiff's motion.”);

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Ellis v. Cambra, No. CIV 02–05646–AWI–SMS PC, 2008 WL 860523, at *4

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(E.D. Cal. Mar. 27, 2008) (“Plaintiff must inform the court which

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discovery requests are the subject of his motion to compel, and,

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for each disputed response, inform the court why the information

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sought is relevant and why Defendant's objections are not

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justified.”).

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B.

Pro Se Litigants

"In general, pro se representation does not excuse a party

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from complying with a court's orders and with the Federal Rules of

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Civil Procedure."

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F.3d 852, 856-57 (8th Cir. 1996) (citing Jones v. Phipps, 39 F.3d

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158, 163 (7th Cir. 1994); Anderson v. Home Ins. Co., 724 F.2d 82,

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84 (8th Cir. 1983)).

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themselves are expected to follow the rules of the court in which

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they litigate.

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1986); see also Bias v. Moynihan, 508 F.3d 1212, 1223 (9th Cir.

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2007) (discussing the pro se litigant's untimely filing in

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violation of local rules).

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entitled to some latitude when dealing with sophisticated legal

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issues, acknowledging their lack of formal training, there is no

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cause for extending this margin to straightforward procedural

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requirements that a layperson can comprehend as easily as a

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lawyer."

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//

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//

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//

Ackra Direct Mktg. Corp. v. Fingerhut Corp., 86

Above all, plaintiffs who choose to represent

Carter v. Comm'r, 784 F.2d 1006, 1008-09 (9th Cir.

"[W]hile pro se litigants may be

Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir. 1991).

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12cv0492 GPC(RBB)

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III.

DISCUSSION

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A.

Motion to Compel Discovery From Romo and Myers

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Plaintiff moved to compel discovery from Defendants County of

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San Diego, James Patrick Romo, and Peter Myers.

(Pl.’s Mot. Compel

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Mem. P. & A. 3, ECF No. 154.)

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Myers have been dismissed, [ECF Nos. 221, 228], Plaintiff may not

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seek discovery under Rules 33 and 34 of the Federal Rules of Civil

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Procedure from Defendants dismissed from the case.

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Flores, No. CV F 00 6331 AWILJOP, 2006 WL 1980334, at *1 (E.D. Cal.

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2006) (denying motion to compel discovery from dismissed defendants

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in a § 1983 case).

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Motion to Compel Discovery from Defendants Romo and Myers.

Because all claims against Romo and

See Stearns v.

Accordingly, the Court denies Plaintiff’s

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B.

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Plaintiff has served six requests for production on Defendant

Motion to Compel Discovery From San Diego County

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San Diego County.

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48, ECF No. 154.)

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1.

(Pl.’s Mot. Compel Mem. P. & A. Ex. 1e, at 43-

Document request 1

Hupp’s first request for production from San Diego County
seeks the following items:
Any and all documents which are in your possession
concerning the investigation of plaintiff, and more fully
set forth in the Complaint, including Plaintiff’s civil
contempt case; Superior Court Case Number 37-201000102264-CU-HR-CTL, and Plaintiff’s criminal case,
Superior Court Case Number SCD238651.

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This shall include at a minimum, but is not limited to:
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a. Any and all reports or forms describing any and all
aspects of the investigation;

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b. Any and all investigation reports, including
fingerprint and DNA evidence;

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c. Any and all audio, video and digital recordings;
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12cv0492 GPC(RBB)

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d. Any and all statements of ROMO, Jeffrey
Anderson Dort and San Diego County Deputy
District Attorney investigator Dan Schmidt
concerning or mentioning plaintiff, including
any and all e-mail without regard to whether
said e-mail account/s are work or personal;

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e. Any and all inter-office memos, intra-office
memos, reports, letters, correspondence,
computerized records or writings that mention,
concern discuss or pertain to Plaintiff; and
f. Statements and/or interviews of any
witnesses, informants, the plaintiff, Deputy
District Attorneys, lawyers, police agents and
any Peace Officers, or other persons who had
any role or contact with ROMO, Jeffrey Anderson
Dort and San Diego County Deputy District
Attorney investigator Dan Schmidt concerning
the investigation of plaintiff, including any
Deputy District Attorney supervisor/s.

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(Id. at 46.)

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vague, compound, overbroad, unduly burdensome, not relevant to any

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claim in the action, and not reasonably calculated to lead to

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discovery of admissible evidence.

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also responded that the District Attorney’s discovery had already

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been produced during Hupp’s criminal case.

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Defendant San Diego County objected to the request as

(Id. Ex. 4, at 93.)

Defendant

(Id.)

In his Motion to Compel, Hupp argues that the County may not

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avoid responding to this request simply because the relevant

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documents had already been produced during the course of Hupp’s

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criminal case.

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Plaintiff also explains that his request is “much broader than what

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was produced in the discovery of the criminal trial.”

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Defendant opposes the motion and argues that Hupp failed to satisfy

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the meet-and-confer obligation; furthermore, his request is

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unrelated to the remaining allegations in the case and seeks

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“future fodder for Plaintiff’s personal vendetta against

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Defendants.”

(Pl.’s Mot. Compel Mem. P. & A. 12, ECF No. 154.)

(Defs.’ Opp’n 3-7, ECF No. 172.)

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(Id.)

Defendant San Diego

12cv0492 GPC(RBB)

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County does not specifically address request number one, but it

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generally argues that the ruling on Defendants’ substantive motions

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“may render certain discovery requests irrelevant to the

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litigation.”

(Id. at 4.)

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Plaintiff’s request to Defendant San Diego County seeks

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documents related to both his civil contempt case, Superior Court

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Case Number 37-2010-00102264-CU-HR-CTL, and his criminal case,

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Superior Court Case Number SCD238651.

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was prosecuted by the Office of the Attorney General of California.

Hupp’s civil contempt case

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The Court previously dismissed all claims against Deputy Attorney

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General Drcar, the prosecutor in Plaintiff’s contempt proceeding,

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finding that Drcar was entitled to absolute immunity from liability

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under § 1983 [ECF No. 35].

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District Attorney Romo, who prosecuted Hupp’s criminal case, was

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not involved in the civil contempt proceedings [ECF No. 221].

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has not shown that the Defendant County has the requisite control

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over the documents related to his civil contempt case.

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States v. Int'l Union of Petroleum & Indus. Workers, AFL-CIO, 870

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F.2d 1450, 1452 (9th Cir. 1989) (“The party seeking production of

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the documents . . . bears the burden of proving that the opposing

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party has such control.”) (citing Norman v. Young, 422 F.2d 470,

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472-73 (10th Cir. 1970)).

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The Court later found that Deputy

Hupp

See United

Additionally, Plaintiff has not met his burden of showing that

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Defendant’s objections to his request for documents related to

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Hupp’s criminal prosecution are improper.

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the only active remaining claims in the case are withholding and

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conspiracy to withhold “Brady” evidence against Defendants San

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Diego Police Department and Wetzel (claims one and two), and for

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As described earlier,

12cv0492 GPC(RBB)

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declaratory and injunctive relief against San Diego Sheriff’s

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Department for the denial of California Penal Code section 4019

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credits (claim eleven).

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interference with free speech, his right to petition government and

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Hupp’s legal proceedings due to wrongful search and seizure (claim

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twelve) was stayed because Hupp’s criminal case is ongoing [ECF No.

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156].

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this claim.8

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CV-F-06-1559 OWW/TAG, 2007 WL 1100501, at *9 (E.D. Cal. Apr. 11,

Plaintiff’s remaining claim for

Thus, at this time, Plaintiff may not propound discovery on
See City of Fresno v. United States, No.

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2007) (“Staying the three causes of action will cause confusion and

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conflict because the City and Boeing will continue to propound

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discovery to the United States which they may believe relevant to

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the unstayed claims but the United States may argue is relevant to

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the stayed claims.”).

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excused from responding to this request absent the stay of claim

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twelve.

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already received from Defendant City of San Diego documents related

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to his criminal case investigation, including five reports, 911 and

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communications tapes, and lab files.

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Den. in Part Mot. Compel Disc. From City San Diego & Raymond Wetzel

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8, ECF No. 251.)

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Defendant San Diego County would not be

Furthermore, the Court notes that in this case Hupp has

(See Order Granting in Part &

In sum, Hupp has not demonstrated that the County’s objections
to his first request should be overruled.

See Ellis, 2008 WL

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No party has moved to lift the stay. Although Hupp contends
that “Plaintiff’s civil contempt and criminal cases are over[,]”
(Pl.’s Mot. Compel Mem. P. & A. 6, ECF No. 154), at the mandatory
settlement conference on May 6, 2014, which Hupp failed to attend,
Defendants informed the Court that his criminal case is currently
on appeal. A search of the California Court of Appeal’s docket
reveals that the case is still pending:
http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist
=41&doc_id=2048351&doc_no=D064053
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860523, at *4 (noting that “[i]f Defendant objects to one of

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Plaintiff's discovery requests, it is Plaintiff's burden on his

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motion to compel to demonstrate why the objection is not

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justified.”).

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production number one to County is DENIED.

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2.

Accordingly, Plaintiff’s motion as to request for

Document request 2

In his second request, Hupp seeks “[a]ny and all documents

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that comprise of, or are part of, ROMO’s personnel file, including

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the disciplinary record and any other documents concerning ROMO’s

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hiring, training, duties, performance, assignments and mental and

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physical condition.”

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46, ECF No. 154.)

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the ground that it is vague, ambiguous, compound, overbroad and

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unduly burdensome, not relevant to any claim in the action, and not

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reasonably calculated to lead to admissible evidence.

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at 93.)

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(Pl.’s Mot. Compel Mem. P. & A. Ex. 1e, at

The Defendant County objected to the request on

(Id. Ex. 4,

Defendant’s objection further stated:

This request seeks privileged information pertaining to
personnel and internal affairs matters and seeks
disclosure of official information acquired in confidence
per Evidence Code § 1040. Disclosure of personnel,
medical and similar files in an unwarranted invasion of
personal privacy impermissible under the Freedom of
Information Act and the State and Federal Constitutions.
The information sought is further protected from the
disclosure under the provisions of the Federal Privacy
Act, as it: 1) seeks records and information compiled for
law enforcement purposes, which is categorically exempt
from disclosure because its production risks an
unwarranted invasion of privacy, 2) seeks nondiscoverable and inadmissible information pertaining to
disciplinary recommendations, and 3) seeks information
reflecting advisory opinions, consultations,
recommendations and deliberations protected from
disclosure by the deliberative process privilege.

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(Id. at 93-94.)

Plaintiff argues that the San Diego County’s

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response consists of boilerplate objections and that the

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12cv0492 GPC(RBB)

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information he is seeking is relevant.9

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argues that Defendants were required to seek a protective order to

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avoid disclosure.

(Id. at 7.)

Hupp also

(Id.)

Federal Rule of Civil Procedure 26(c)(1) provides that "[a]

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party or any person from whom discovery is sought may move for a

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protective order in the court where the action is pending . . . ."

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Fed. R. Civ. P. 26(c)(1) (emphasis added).

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that a party seek a protective order when withholding potentially

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discoverable information.

There is no requirement

See IPALCO Enterps., Inc. v. PSI Res.,

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Inc., 148 F.R.D. 604, 606 n.3 (S.D. Ind. 1993) ("The Court agrees

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with defendants that they are not required to move for a protective

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order under Rule 26(c) every time they object to discovery based on

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Rule 26(c) grounds.")

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move for a protective order in this case [ECF No. 160].

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Accordingly, Plaintiff's argument is without merit.

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Additionally, Defendant San Diego County did

Furthermore, after Defendant Romo’s dismissal from the case,

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any information Plaintiff expects to acquire from Romo’s personnel

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file does not appear to be germane to the remaining claims.

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Rule 26(b)(1) of the Federal Rules of Civil Procedure, absent good

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cause, discovery must relate more directly to a “claim or defense”

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than it did prior to amendments to the rule in 2000.

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Calvin Presbyterian Church, 375 F.3d 951, 968 (9th Cir. 2004).

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information Hupp seeks relates to claims against Romo that have

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been dismissed.

Under

Elvig v.
The

To the extent he seeks discovery in connection

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Plaintiff’s document request two to Defendant San Diego
County was identical to document request two to Defendant Romo.
(Compare Pl.’s Mot. Compel Mem. P. & A. Ex. 1c, with id. Ex. 1e.)
In his Motion to Compel, Hupp claims that the County’s “objections
are the same as the ROMO objections, and Plaintiff incorporates his
reply to ROMO’s objections here.” (Pl.’s Mot. Compel Mem. P. & A.
12, ECF No. 154.)
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with claim twelve, Plaintiff may not do so until his criminal case

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is over and the stay is lifted.

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Compel production of documents and things identified in request

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number two is DENIED.

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3.

For these reasons, the Motion to

Document request 3

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Hupp’s third request seeks the following:

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Any and all documents concerning, or at all relevant, to
any formal or informal complaint made against you or
about ROMO, Jeffrey Anderson Dort and San Diego County
Deputy District Attorney investigator Dan Schmidt from
any source whatsoever, and concerning any subject matter
whatsoever, without regard to the outcome.

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This shall include at a minimum, but is not limited
to:
a. Documents concerning all complaints and
other disciplinary or police review of you by
Internal Affairs or San Diego County;
b. The full and complete documents concerning
each action listed on ROMO, Jeffrey Anderson
Dort and San Diego County Deputy District
Attorney investigator Dan Schmidt’s
disciplinary record;
c. The full and complete documents concerning
all complaints and other disciplinary or police
review of ROMO, Jeffrey Anderson Dort and San
Diego County Deputy District Attorney
investigator Dan Schmidt’s activities
maintained by San Diego County; and

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d. All information contained in the computers
maintained by Internal Affairs or any other
division of the District Attorney or San Diego
County, concerning ROMO, Jeffrey Anderson Dort
and San Diego County Deputy District Attorney
investigator Dan Schmidt including but not
limited to, information retrievable by computer
codes.

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(Pl.’s Mot. Compel Mem. P. & A. Ex. 1e, at 47, ECF No. 154.)

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Defendant County objected to this request as vague, ambiguous,

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compound, overbroad and unduly burdensome, and seeking documents

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not relevant to the action.

(Id. Ex. 4, at 94.)

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It also objected

12cv0492 GPC(RBB)

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on privacy grounds and invoked the official information privilege.

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(Id. at 94-95.)

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Hupp argues that the County’s objections are “boilerplate

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denials.”

(Pl.’s Mot. Compel Mem. P. & A. 7-8, ECF No. 154.)

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Plaintiff offers no further argument on how the information he

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requests is relevant to any remaining claim or defense.

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initial matter, this request is duplicative as it relates to Romo’s

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disciplinary record.

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Plaintiff must establish that the information regarding Romo’s

As an

Because Romo is no longer a Defendant,

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performance or discipline remains salient to Hupp’s prosecution of

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his surviving claims.

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Schmidt are parties to this case.10

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shown the relevance of any records involving these individuals.

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to request number three, the motion is DENIED.

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4.

Similarly, neither Jeffrey Dort nor Dan
At this time, Plaintiff has not
As

Document request 4

Plaintiff’s fourth request asks Defendant County to produce
the following:
All Deputy District Attorney materials which are in your
possession and relevant to this incident, including, but
not limited to, guidelines, directives, policy
statements, procedures, training materials of any kind,
in any form or medium, concerning District Attorney
policy, custom or practice regarding:

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a. Discipline of Deputy District Attorneys
generally;

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b. Specific discipline for the violation of
constitutional rights, including, but not limited to
withholding exculpatory evidence, fingerprint
evidence, DNA evidence, police reports,
investigative reports; and violations of due
process;

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Plaintiff previously attempted to add Dan Schmidt as a
Defendant, but his request was denied [ECF No. 148].
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c. The procedure relating to or regarding acts which
violate due process and denies [sic] access to
exculpatory evidence, fingerprint evidence, DNA
evidence, police reports, investigative reports, by
Deputy District Attorneys and investigators, and
violations of due process rights during and
resulting from the withholding of exculpatory,
fingerprint, DNA evidence, police reports,
investigative reports.

2
3
4
5
6

(Id. Ex. 1e, at 47-48.)

The County raises the same objections:

7
The request is vague, overbroad, and seeks documents not reasonably
8
calculated to lead to the discovery of admissible evidence or
9
relevant to the claims in this case.

(Id. Ex. 4, at 95.)

Hupp

10
moves to compel, incorporating his earlier conclusory arguments
11
that the County responded with boilerplate objections and that the
12
information he seeks is relevant.

(Pl.’s Mot. Compel Mem. P. & A.

13
7-8, ECF No. 154.)
14
Hupp’s request is overbroad and not relevant to any remaining
15
claim in this case.

Judge Curiel granted summary judgment in favor

16
of Defendants Romo and the San Diego District Attorney’s Office on
17
Plaintiff’s claims related to withholding “Brady” evidence; the
18
intentional infliction of emotional distress; and the negligent
19
hiring, training, supervision, and retention of deputy district
20
attorneys.

(Order Granting Defs. Cnty. San Diego & James Romo’s

21
Mot. Summ. J. 11-12, ECF No. 221.)

The Court explained:

22
23
24
25
26
27
28

Plaintiff’s claims for intentional infliction of
emotional distress against both Defendants as well as for
negligent hiring, training, supervision, and retention of
deputy district attorneys against the SD DA as a
Defendant County agency are based on Plaintiff’s
allegations that Defendant Romo withheld and concealed
exculpatory evidence during Plaintiff’s civil contempt
proceedings. (See Compl. ¶¶ 97, 101, 109, 115.)
Defendants’ evidence, provided in the form of
declarations by Defendant Romo and Attorney General
Drcar, directly contradicts Plaintiff’s allegations. (See
Dkt. No. 123-3 ¶ 4; Dkt. No. 123-4 ¶ 5.) According to

15

12cv0492 GPC(RBB)

1

both declarations, Defendant Romo did not conduct or
assist with the California Attorney General’s civil
harassment and contempt of court allegations against
Plaintiff in any capacity. (Dkt. No. 123-3 ¶ 4; Dkt. No.
123-4 ¶ 5.) Because Plaintiff fails to offer evidence
beyond the pleadings to show that there is a genuine
issue for trial, the Court GRANTS Defendants County and
James Romo judgment as a matter of law as to Plaintiff’s
derivative claims for emotional distress and County
Monell liability.

2
3
4
5
6
7

(Id.)

8

supervisory liability under Monell v. Dep't of Soc. Servs., 436

9

U.S. 658, 694-95 (1978), have been dismissed from the case,

Thus, because Hupp’s claims against the County based on

10

Plaintiff is not entitled to discovery relating to the negligent

11

hiring, training, supervision or retention of deputy district

12

attorneys.

13

BAM PC, 2012 U.S. Dist. LEXIS 100484, at *7 (E.D. Cal. July 19,

14

2012) (“Plaintiff’s motion for sanctions is based upon discovery

15

requests for claims that are no longer in issue in this action and

16

shall be denied.”).

17

number four is DENIED.

18

5.

19
20
21
22
23
24
25

See Manriquez v. Huchins, Case No. 1:09-cv-00456-LJO-

The Motion to Compel discovery for request

Document request 5

Plaintiff’s fifth request asks the County for documents that
refer to third parties.
Your responses shall include any and all writings and
documents, either directly or indirectly, between Freedom
Communications Inc. or their representatives, Michael
Bishop or his representatives, Richard and Judith Beyl or
their representatives, any federal court or their
representatives, any federal law enforcement agency or
their representatives, any state law enforcement agency
or their representatives and any local law enforcement
agency or their representatives.

26

(Pl.’s Mot. Compel Mem. P. & A. Ex. 1e, at 48, ECF No. 154.)

27

County objected that “[t]his is not a valid request.”

28

at 96.)

The

(Id. Ex. 4,

Plaintiff moves to compel, arguing that the County failed

16

12cv0492 GPC(RBB)

1

to respond to his “valid requests.”

2

A. 12, ECF No. 154.)

3

(Pl.’s Mot. Compel Mem. P. &

Neither party substantively addresses the County’s objection.

4

Plaintiff’s fifth request is unrelated to this lawsuit.

Neither

5

Freedom Communications, Michael Bishop, Richard Beyl, nor Judith

6

Beyl are defendants or witnesses in Hupp’s litigation against the

7

City of San Diego and Defendant Wetzel.

8

ECF No. 64.)

9

defendants in two of Plaintiff's other lawsuits:

(See Third Am. Compl. 2-4,

Freedom Communication and these individuals were
See Hupp v.

10

Freedom Commc'ns, Inc., 221 Cal. App. 4th 398, 163 Cal. Rptr. 3d

11

919 (2013); Hupp v. Cnty. of San Diego, No. CIV 13-2655-GPC-RBB,

12

2014 WL 68580 (S.D. Cal. Jan. 8, 2014).

13

request for discovery is made in connection with other litigation,

14

the discovery request is improper.

15

Compel a further response to request number five is DENIED.
6.

16
17

To the extent that Hupp's

Accordingly, Hupp’s Motion to

Document request 6

Plaintiff’s final request to the County sought “[a]ny and all

18

other documents that relate to this action, no matter how slight,

19

that are not covered in any of the above requests.”

20

Compel Mem. P. & A. Ex. 1e, ECF No. 154.)

21

that this request is invalid, vague, and overbroad.

22

96.)

23

assertion that the County failed to respond to his “valid

24

requests.”

25

Assuming that the discovery sought is relevant, Plaintiff has not

26

demonstrated that the County’s objections are unwarranted.

27

Ellis, 2008 WL 860523, at *4.

28

See Audibert v. Lowe's Home Centers, Inc., 152 F. App'x 399, 401-02

(Pl.’s Mot.

The Defendant objected
(Id. Ex. 4, at

In his Motion to Compel, Hupp restates his conclusory

(Pl.’s Mot. Compel Mem. P. & A. 12, ECF No. 154.)

See

Further, this request is overbroad.

17

12cv0492 GPC(RBB)

1

(5th Cir. Nov. 1, 2005) (unpublished per curiam opinion) (finding

2

that a district court did not abuse its discretion in denying a

3

plaintiff’s “extremely broad discovery requests” which asked for

4

“‘all things, all documents, all statements, all knowledge of

5

facts, sworn or unsworn, relating to this case’”) (quoting the

6

plaintiff’s discovery request).

7

County to produce documents in response to request number six is

8

DENIED.

9

B.

10

Plaintiff’s Motion to Compel the

Meet-and-Confer Requirement

According to the Civil Local Rules for the Southern District

11

of California, "The court will entertain no motion pursuant to

12

Rules 26 through 37, Fed. R. Civ. P., unless counsel shall have

13

previously met and conferred concerning all disputed issues."

14

Cal. Civ. R. 26.1(a).

15

they are to meet in person.

16

counties, they are to confer by telephone."

17

further provide that "[u]nder no circumstances may the parties

18

satisfy the meet-and-confer requirement by exchanging written

19

correspondence."

20

S.D.

"If counsel have offices in the same county,
If counsel have offices in different
(Id.)

The local rules

(Id.)

Rules requiring meet-and-confer efforts apply to pro se
Madsen v. Risenhoover, No. C 09-5457 SBA (PR), 2012

21

litigants.

22

U.S. Dist. LEXIS 90810, at *8-9 (N.D. Cal. June 28, 2012) (finding

23

that the meet-and-confer requirement applies to incarcerated

24

individuals, but noting that the incarcerated plaintiff may send a

25

letter to defendants); Walker v. Ryan, No. CV-10-1408-PHX-JWS

26

(LOA), 2012 U.S. Dist. LEXIS 63606, at *5-6 (D. Ariz. May 7, 2012)

27

(denying motion to compel where unrepresented party did not include

28

a certification of attempts to meet and confer); see also Jourdan

18

12cv0492 GPC(RBB)

1

v. Jabe, 951 F.2d 108, 109 (6th Cir. 1991) (discussing that

2

although courts should liberally construe pro se plaintiffs'

3

pleadings and legal arguments, this liberality does not apply to

4

compliance with straightforward procedural requirements).

5

A court can deny a motion to compel solely because of a

6

party's failure to meet and confer prior to filing the motion.

7

Scheinuck v. Sepulveda, No. C 09-0727 WHA (PR), 2010 U.S. Dist.

8

LEXIS 136529, at *3-4 (N.D. Cal. Dec. 15, 2010); see Shaw v. Cnty.

9

of San Diego, No. 06-CV-2680-IEG (POR), 2008 U.S. Dist. LEXIS

10

80508, at *3-4 (S.D. Cal. Oct. 9, 2008) (denying plaintiff's motion

11

to compel for failing to meet and confer).

12

can exercise its discretion to decide a motion on the merits

13

despite a failure to meet and confer.

14

Marine Trvelift, Inc., No. 10cv846-BTM (KSC), 2012 U.S. Dist. LEXIS

15

49064, at *6-7 (S.D. Cal. Apr. 6, 2012) (explaining failure to meet

16

and confer is grounds for denying a motion, but still addressing

17

the merits).

18

Nonetheless, a court

See Marine Group, LLC v.

Defendants argue in their opposition that Plaintiff did not

19

satisfy the meet-and-confer requirements of the Federal Rule of

20

Civil Procedure 37 prior to bringing his Motion to Compel.

21

Opp’n 3, ECF No. 172.)

22

sent meet-and-confer letters for each Defendant to Defendants’

23

counsel by e-mail and hard copy, and also placed meet-and-confer

24

phone calls to Defendants’ counsel, but the counsel’s telephone

25

number listed on the pleadings was not a working number.

26

Mot. Compel Mem. P. & A. 4-5, ECF No. 154.)

27

that he then sent further e-mail notifications to Defendants’

28

counsel.

(Id. at 5.)

(Defs.’

In his motion, Plaintiff alleged that he

(Pl.’s

Plaintiff contends

Hupp states that Defendants’ “substitute

19

12cv0492 GPC(RBB)

1

counsel” called him later that day to meet and confer, and

2

reiterated the same objections.

3

out that Defendants subsequently filed their Motion for Protective

4

Order, submitting a declaration from their counsel, James Chapin,

5

which states:

6

(Id.)

In his reply, Hupp points

10

On August 26, 2013, I contacted Plaintiff Paul Hupp
by telephone in order to meet and confer regarding the
discovery he propounded to Defendants Romo, Myers and the
County. After nearly 30 minutes of attempting to discuss
discovery issues with Mr. Hupp, no progress was made on
any discovery issue. Mr. Hupp appears unreasonable and
uncompromising; the conversation demonstrated that a
meaningful, productive meet and confer with Mr. Hupp is
not possible.

11

(Defs.’ Mot. Protective Order Attach. #2, Decl. James Chapin 2, ECF

12

No. 160.)

7
8
9

13

This is not the first time the parties alleged difficulties

14

satisfying the meet-and-confer requirement.

15

Cnty., Civil No. 12cv0492 GPC (RBB), 2014 WL 1404510, at *16-17

16

(S.D. Cal. Apr. 10, 2014).

17

Plaintiff and Defendants’ counsel engaged in a telephonic

18

conversation regarding the dispute, in addition to exchanging e-

19

mail correspondence.

20

discussion did not resolve any of the discovery issues, the failure

21

to come to an agreement does not establish that Plaintiff failed to

22

meet and confer as required by the rules.

23

Hupp satisfied his meet-and-confer requirement.

See Hupp v. San Diego

Unlike the previous time, however,

Although it is unfortunate that their

The Court concludes that

24

B.

Defendants’ Motion for Protective Order

25

Defendants San Diego County, James Romo and Peter Myers filed

26

a Motion for Protective order, asking the Court to stay discovery

27

pending the resolution of Defendants’ dispositive motions.

28

Protective Order Attach. #1 Mem. P. & A. 3, ECF No. 160.)

20

(Mot.
They

12cv0492 GPC(RBB)

1

represent that the following dispositive motions resolve all claims

2

in this action against them:

3

Attorney’s Office and James Romo’s Motion for Summary Judgment or

4

Partial Summary Judgment [ECF No. 123], Defendant County of San

5

Diego’s Motion for Judgment on the Pleadings [ECF No. 127], and

6

Defendants County of San Diego and Peter Myers’ Motion for Summary

7

Judgment [ECF No. 161].

8
9

Defendants San Diego District

(Id.)

Judge Curiel has ruled on all the motions filed by these
Defendants.

Defendants San Diego District Attorney’s Office and

10

James Romo’s Motion for Summary Judgment was granted on January 9,

11

2014 [ECF No. 221].

12

Myers’ Motion for Summary Judgment was granted on January 30, 2014

13

[ECF No. 228].

14

on the Pleadings was granted on March 4, 2014 [ECF No. 239].

15

Moreover, Defendants Romo and Myers have been dismissed from the

16

case.

17

moot.

Defendants County of San Diego and Peter

Defendant County of San Diego’s Motion for Judgment

Accordingly, the Motion for Protective Order is DENIED as

18

IV. CONCLUSION

19

For the reasons stated above, Plaintiff’s Motion to Compel

20

[ECF No. 154] is DENIED, and Defendants’ Motion for Protective

21

Order [ECF No. 160] is DENIED as moot.
IT IS SO ORDERED.

22
23

Dated:

June 3, 2014

______________________________
Ruben B. Brooks
United States Magistrate Judge

24
25

cc:

Judge Curiel
All Parties of Record

26
27
28
I:\Chambers Brooks\CASES\_1983\HUPP0492\Mot to Compel County\Order re Motion to Compel SD Cnty & Mot for
Protective Order 4.wpd

21

12cv0492 GPC(RBB)