Hupp v. San Diego County District Attorney et al

Filing 306

ORDER Denying 300 Plaintiff's Motion for Sanctions With Prejudice. Signed by Judge Gonzalo P. Curiel on 11/6/2015. (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,

Case No.: 12-cv-0492-GPC-RBB
Plaintiff,

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v.

ORDER DENYING PLAINTIFF’S
MOTION FOR SANCTIONS

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SAN DIEGO COUNTY DISTRICT
ATTORNEY ET AL.,

[ECF No. 300]

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Defendants.

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INTRODUCTION

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Presently before the Court is pro se Plaintiff Paul Hupp’s (“Plaintiff”) motion to

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sanction defendants, former defendants and defense counsel. (Mot. Sanction, ECF No.

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300.)

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obstructed justice by failing to withdraw perjured documents in connection with a joint

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motion to dismiss for lack of prosecution filed and denied more than a year ago. (Mot.

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Sanctions at 2-3, ECF No. 300.) Plaintiff seeks monetary sanctions and requests that the

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Court disregard Defendants’ evidence. (Id. at 3.) County of San Diego filed a response

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on October 28, 2015. (Opp’n, ECF No. 304.) Having considered the parties submissions

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and applicable law, the Court DENIES Plaintiff’s motion.

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In his motion Plaintiff claims that Defendants filed perjured documents and

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12-cv-0492-GPC-RBB

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RELEVANT BACKGROUND

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As detailed in prior orders, this action stems from a lengthy history of state civil

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contempt and criminal court proceedings against Plaintiff Paul Hupp (“Plaintiff”) as well

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as Plaintiff’s subsequent detention in San Diego County jail. On February 28, 2012

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Plaintiff, proceeding pro se, filed this civil action pursuant to 42 U.S.C. § 1983. (ECF No.

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1.) On August 28, 2012, Plaintiff filed a TAC, the current operative complaint. (ECF. No.

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64.) The TAC names eight Defendants, including the County of San Diego (“County”),

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the City of San Diego, the City of Beaumont, and five individual Defendants and alleges

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twelve separate causes of action. (Id.) Of these, all but the twelfth cause of actions against

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the County and Joseph Cargel have been dismissed. (See Order Joint Mot. Dismiss at 2,

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ECF No. 289.) On May 8, 2013, Cargel moved to dismiss the remaining cause of the

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action. (Cargel Mot. Dismiss, ECF No. 121.) Cargel’s motion was denied on September

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17, 2013 and the case was stayed under Younger v. Harris, 401 U.S. 37 (1971). (Mot.

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Dismiss Order at 9-10, ECF No. 156.)

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On July 18, 2014, the City of San Diego, joined by the County of San Diego, filed a

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motion to dismiss pursuant to Rules 41(b), 37(b), and 37(d) of the Federal Rules of Civil

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procedure. (See Joint Mot. Dismiss, ECF No. 273.) The basis of the joint motion was

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Plaintiff’s failure to prosecute and failure to attend his noticed deposition in spite of a Court

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order compelling him to do so. (Id.) On September 12, 2014, Plaintiff filed an opposition

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to that motion, disputing that the City’s process server had made repeated attempts to serve

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Plaintiff with notice of his deposition. (Opp’n to Mot. Dismiss, ECF No. 287.) At that

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point, only the twelfth cause of action remained and the case had been stayed under

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Younger abstention principles. On September 18, 2014, the Court denied the joint motion

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to dismiss without reaching the merits because of the stay. (Order Mot. Dismiss, ECF No.

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289.)

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12-cv-0492-GPC-RBB

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DISCUSSION

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Plaintiff’s motion is premised on Defendants’ alleged wrongdoing by filing and

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failing to withdraw allegedly perjured documents in contravention of federal and state law.

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(Mot. Sanctions at 2, ECF No. 300.) For the reasons set forth below, the court DENIES

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Plaintiff’s motion for sanctions.

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First, Plaintiff fails to offer any legal authority supporting sanctions under these
circumstances and the Court finds none.

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Second, Plaintiff’s proffered evidence does not establish that Defendants or

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Defendants’ counsel acted improperly or in bad faith. In support of their joint motion to

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dismiss, the City Defendants attached a “Non Service Report” signed under penalty of

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perjury dated June 8, 2014 indicating that Kathy Chandler of Diversified Legal Services,

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Inc., the City Defendants’ process server, attempted to serve Plaintiff with the Deposition

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Notice 17 times at his residence between May 23, 2014 and June 8, 2014. (Joint Mot.

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Dismiss, Milligan Decl, Ex. 4 (Non Service Report), ECF No. 273-5.) In his opposition to

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the joint motion to dismiss, Plaintiff argued that Kathy Chandler’s statements regarding

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service constituted perjury. (Opp’n Joint Mot. Dismiss at 4, ECF No. 287.) In support of

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his contention, Plaintiff provided evidence that the gated community he lives in requires

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process servers to show proper credentials and sign in, restricts process services to 7:30

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a.m. to 10:00 p.m., and has 24/7 video surveillance. (Id.) Plaintiff argued that the process

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server sign in sheets for that period did not reflect that Kathy Chandler attempted service

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when she claimed and that there was only a single entry on June 2, 2014 indicating that

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Kathy Chandler signed in. Assuming arguendo that the process server’s report constituted

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perjury, Plaintiff does not provide evidence suggesting that Defendants or counsel knew

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about the inaccuracy of the process server’s statements or submitted her statements in bad

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faith or with an improper purpose. The Court does not find that counsel’s reliance or

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submission of the process server’s statements in support of the joint motion to dismiss

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warrants sanctions.

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12-cv-0492-GPC-RBB

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Third, the Court did not rely on any documents or alleged misrepresentations in

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support of the joint motion to dismiss in its ruling on the motion. In fact, the Court denied

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the motion, declining to use its discretion to dismiss the case under Federal Rule of

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Procedure 41(b) when the case was stayed pending resolution of Plaintiff’s state criminal

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appeal. (See Mot. Dismiss Order at 2, ECF No. 289.) Therefore, Plaintiff was not

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prejudiced by the filing of allegedly perjured documents in support of the joint motion to

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dismiss in any way.

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CONCLUSION
Plaintiff’s motion for sanctions is DENIED WITH PREJUDICE.
IT IS SO ORDERED.
Dated: November 6, 2015

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12-cv-0492-GPC-RBB