Martinez v. City of West Sacramento ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SONNY MARTINEZ, et al., No. 2:16-cv-02566-TLN-JDP 12 Plaintiffs, 13 v. ORDER 14 CITY OF WEST SACRAMENTO, et al., 15 Defendants. 16 17 This matter is before the Court on Defendants Yolo County, Robert Gorman (“Gorman”), 18 and Ryan Couzens’s (“Couzens”) (collectively, “Defendants” or “Yolo Defendants”) Motion for 19 Sanctions against Plaintiffs pursuant to Federal Rule of Civil Procedure (“Rule”) 11. (ECF No. 20 148.) Plaintiffs Sonny Martinez (“Sonny”), Jessica Martinez (individually and as guardian ad 21 litem for minors ARM and EVM), Veronica J. Martinez, Gabriel R. Martinez, and Joann Ramirez 22 (collectively, “Plaintiffs”) filed an opposition.1 (ECF No. 151.) Defendants replied. (ECF No. 23 156.) For the reasons stated herein, Defendants’ Motion is GRANTED. 24 /// 25 26 1 Defendants City of West Sacramento, West Sacramento Police Department, Jason M. Winger, David M. Stallions, Michael Duggins, Kenneth E. Fellows, Carl J. Crouch, Eric M. 27 Palmer, Matthew S. Luiz, Louis Cameron, and David Delaini (collectively, the “West Sacramento Defendants”) additionally filed a Statement of Non-Opposition to the Yolo Defendants’ Motion 28 for Sanctions. (ECF No. 150.) 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 This action arises from Sonny’s arrest and criminal prosecution in relation to the October 3 24, 2015 shooting of Alize Valadez (“Valadez”) in West Sacramento. Plaintiffs initiated this 4 action on October 27, 2016, against multiple Defendants involved at all stages of the Valadez 5 investigation: The West Sacramento Police Department and officers involved in the investigation; 6 the Stockton Police Department and officers involved in executing the warrants; and the 7 informant who worked with the police. (See generally ECF No. 1.) In general, Plaintiffs claim 8 all of the Defendants conspired to wrongfully investigate, arrest, and prosecute Sonny for the 9 Valadez shooting, despite knowing he was innocent. (See id.) 10 On October 27, 2017, Plaintiffs moved to amend the complaint to add Yolo County and 11 Yolo County District Attorney’s Office prosecutors Gorman and Couzens as Defendants and 12 assert new claims arising under the Fifth and Sixth Amendments. (ECF No. 64.) The Court 13 granted Plaintiffs’ motion. (ECF No. 70; see also ECF No. 69 at 15–44 (granting motion as to 14 each separate Defendant).) 15 On February 7, 2019, Plaintiffs filed the First Amended Complaint (“FAC”). (ECF No. 16 71.) With respect to the Yolo Defendants, the FAC alleged: Gorman falsely “testified as a 17 witness under oath” (id. at ¶¶ 276, 285, 298); Gorman and Couzens either interrogated or directed 18 the interrogation of Sonny at the jail as part of the classification process without advising Sonny 19 of his Miranda rights (id. at ¶¶ 255–59); Couzens improperly sought five continuances, including 20 on the final day of the case, which the state court refused (id. at ¶¶ 304–305; see also id. at ¶¶ 21 277, 293, 296, 306, 308); another Defendant agreed to provide perjured testimony at the 22 preliminary hearing (id. at ¶ 299); and the collective Defendants failed to disclose exculpatory 23 information in Sonny’s criminal case (id. at ¶¶ 290, 292, 294–95). 24 On June 4, 2019, in response to the FAC, defense counsel emailed Plaintiffs copies of the 25 jail classification questionnaire that Plaintiffs allege was fraudulent, the Ramey arrest warrant, 26 and a certified copy of Sonny’s full criminal court file with certified docket and certified 27 transcripts from every hearing that occurred in the criminal case. (See ECF No. 156 at 2.) 28 Defendants maintain these records were provided informally to Plaintiffs in an attempt to help 1 facilitate Plaintiffs’ ability to conduct an “inquiry reasonable under the circumstances” before 2 “presenting to the court” certain disputed factual contentions against Gorman and Couzens in the 3 amended complaint. (Id. at 1–2.) 4 On June 10, 2019, all Defendants, including the Yolo Defendants, moved to dismiss the 5 FAC. (See ECF Nos. 77, 90, 107.) The Yolo Defendants’ motion advanced several arguments, 6 including the argument that Plaintiffs’ claims were barred by absolute prosecutorial immunity. 7 (See generally ECF No. 107.) In support of their motion, the Yolo Defendants submitted the 8 same records it had provided informally to Plaintiffs and requested the Court take judicial notice 9 that: the court records reflected Couzens made only continuance motions (and only two of them, 10 not five); Gorman did not testify at any proceeding in Sonny’s criminal case, but merely signed 11 the criminal complaint; and no fruit of any “interrogation” at the jail was “used,” as required for 12 Plaintiffs’ Fifth Amendment claims. (ECF Nos. 107-2, 107-3.) 13 In their briefing, Plaintiffs repeatedly alluded to further amending the FAC and ultimately 14 filed a motion to amend. (See ECF Nos. 92, 115.) The Court thus elected to vacate the pending 15 motions to dismiss and directed Plaintiffs to file “a single, comprehensive Second Amended 16 Complaint that complies with the Court’s previous orders.” (ECF No. 115.) 17 On October 21, 2019, Plaintiffs filed the Second Amended Complaint (“SAC”). (ECF 18 No. 116.) The SAC added the following new allegations: that “[o]n information and belief,” 19 Gorman and Couzens were involved in a judicial deception conspiracy in which they advised the 20 Defendant officers how to obtain warrants by attesting to false information; that Gorman and 21 Couzens filed ex parte affidavits with the criminal court bearing on Sonny’s right to bail; that 22 Couzens forged a jail classification questionnaire with incriminating statements against Sonny; 23 that Couzens authorized bribing Defendant Altamirano for false testimony against Sonny; and 24 that Gorman falsely “testified” that Sonny was a street gang member. (Id. at ¶¶ 204, 217, 330, 25 341, 350, 364, 397.) Meanwhile, the SAC continued to allege that Couzens sought five 26 continuances to keep Sonny in jail (id. at ¶¶ 362, 402, 403, 404), and it omitted all prior 27 allegations about Sonny being interrogated at the jail (see id. at ¶¶ 330). 28 On December 16, 2019, the Yolo Defendants moved to dismiss the SAC on the basis of 1 prosecutorial immunity, state statutes of limitation, and for failure to state a claim under Rules 8, 2 9, 10, and 12. (See ECF Nos. 132, 132-1.) Defendants submitted the same court records for 3 judicial notice they previously filed with their motion to dismiss the FAC. (ECF Nos. 132-2, 4 132-4.) 5 On January 15, 2020, counsel for the Yolo Defendants directly provided Plaintiffs’ 6 counsel, Mr. Thorn, the court records from Sonny’s criminal case and proposed Rule 11 Motion 7 and requested Plaintiffs withdraw their claims based on factual allegations directly contradicted 8 by the court record and transcripts of the proceedings. (ECF No. 148-2 at 2.) The parties met and 9 conferred on this matter for approximately three months, but Plaintiffs ultimately refused to alter 10 their pleadings. (See id. at 2–3, 5–28.) 11 On April 14, 2020, the Yolo Defendants filed the instant Motion for Sanctions under Rule 12 11.2 (ECF No. 148; ECF No. 148-1 at 6.) Defendants’ Motion additionally expresses concern 13 that the Court would assume the contested allegations had a factual basis and deny the pending 14 motion to dismiss. (ECF No. 148-1 at 6 n.1.) Defendants seek both monetary sanctions, as well 15 as a Court order that Plaintiffs withdraw the identified contentions against Defendants or show 16 cause why they do not violate Rule 11. (Id. at 7.) Plaintiffs opposed the Motion and Defendants 17 replied. (ECF Nos. 151, 156.) 18 On March 31, 2021, the Court granted the Yolo Defendants’ motion to dismiss. (ECF No. 19 159.) Plaintiffs were granted leave to amend certain claims as asserted against other Defendants. 20 (See generally id.) However, there are no remaining Yolo Defendants in this action and there is 21 currently no operable complaint before the Court.3 22 2 In support of their Rule 11 Motion, Defendants filed a Request for Judicial Notice of 23 certain facts arising from the court file and transcripts of proceedings from Sonny’s Yolo Superior Court criminal case, No. 15-6190, as referenced in the SAC. (ECF No. 149; ECF No. 24 148-3 at 9–158 (Ex. B–L).) The Court notes Defendants’ Exhibit L appears to be a duplicate of Exhibit K. (See ECF No. 148-3 at 127–140.) Regardless, the Request is hereby GRANTED. 25 Fed. R. Evid. 201(b); Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002) (“[W]e 26 may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue”) (internal quotations 27 omitted). 28 3 Nevertheless, the Court retains jurisdiction over the parties for purposes of a Rule 11 1 II. STANDARD OF LAW 2 Under Rule 11, by signing a document, an attorney certifies that (1) he has read the 3 pleadings or motions he filed and (2) the pleading or motion is “well-grounded in fact,” has a 4 colorable basis in law, and is not filed for an improper purpose. Fed. R. Civ. P. 11(b); Smith v. 5 Ricks (Ricks), 31 F.3d 1478, 1488 (9th Cir. 1994). Rule 11 “is designed to deter attorneys and 6 unrepresented parties from violating their certification that any pleading, motion or other paper 7 presented to the court is supported by an objectively reasonable legal and factual basis; no 8 showing of bad faith or subjective intent is required.” Truesdell v. S. Cal. Permanente Med. Grp., 9 209 F.R.D. 169, 173–74 (C.D. Cal. 2002); c.f. Mars Steel Corp. v. Continental Bank N.A., 880 10 F.2d 928, 932 (7th Cir. 1989) (“[A] paper filed in the best of faith, by a lawyer convinced of the 11 justice of his client’s cause, is sanctionable if counsel neglected to make [a] ‘reasonable inquiry’ 12 beforehand.”). Rule 11 also “emphasizes the duty of candor by subjecting litigants to potential 13 sanctions for insisting upon a position after it is no longer tenable and by generally providing 14 protection against sanctions if they withdraw or correct contentions after a potential violation is 15 called to their attention.” 1993 Comments to Fed. R. Civ. P. 11 (“[I]f evidentiary support is not 16 obtained after a reasonable opportunity for further investigation or discovery, the party has a duty 17 under the rule not to persist with that contention.”); Holgate, 425 F.3d at 680 (sanctions 18 warranted when a party refuses to withdraw an untenable position or to acknowledge candidly 19 that it does not currently have evidence to support a specified allegation after receiving a Rule 11 20 motion); see also G.C. & K.B. Invs., Inc. v. Wilson (Wilson), 326 F.3d 1096, 1110 (9th Cir. 2003) 21 (“[S]uccessive complaints based upon propositions of law previously rejected may constitute 22 harassment under Rule 11.”). 23 When, as here, a “complaint is the primary focus of Rule 11 proceedings,” the Ninth 24 Circuit requires “a district court [to] conduct a two-prong inquiry to determine (1) whether the 25 complaint is legally or factually baseless from an objective perspective, and (2) if the attorney has 26 inquiry and addresses the merits of Defendants’ Motion. See Holgate v. Baldwin, 425 F.3d 671, 27 677 (9th Cir. 2005) (court retained jurisdiction over attorney, after he withdrew as counsel, regarding Rule 11 certification in pleading filed prior to withdrawal, on basis that the Rule 11 28 inquiry is made as of the time of the signing of the certification on the questioned document). 1 conducted a reasonable and competent inquiry before signing and filing it.” Christian v. Mattel, 2 Inc., 286 F.3d 1118, 1127 (9th Cir. 2002) (internal quotations and citation omitted); Townsend v. 3 Holman Consulting Corp., 914 F.2d 1136, 1142 (9th Cir. 1990) (whether a pleading is 4 sanctionable must be based on, among other factors, an assessment of the knowledge that 5 reasonably could have been acquired at the time the pleading was filed). The reasonableness 6 standard applies the perspective of “a competent attorney admitted to practice before the district 7 court.” Wilson, 326 F.3d 1096, 1109 (9th Cir. 2003) (quoting Zaldivar v. City of L.A., 780 F.2d 8 823, 831 (9th Cir. 1986)). 9 In addition, section (c) of Rule 11 provides a “safe harbor” period of 21 days, during 10 which time the moving party must allow the opposing party to retract the offending pleading 11 before it may file its Rule 11 motion with the court. Fed. R. Civ. P. 11(c)(2). In the Ninth 12 Circuit, the procedural requirements of the “safe harbor” provision are mandatory and therefore 13 strictly enforced. Blumberg v. Gates, 152 F. App’x 652, 653 (9th Cir. 2005) (citing Barber v. 14 Miller, 146 F.3d 707, 710 (9th Cir. 1988)). 15 If all provisions of Rule 11 have been met, the Court “may” issue sanctions. Fed. R. Civ. 16 P. 11(c)(1). Sanctions are limited to what is “sufficient to deter repetition of such conduct or 17 comparable conduct by others similarly situated.” Fed. R. Civ. P. 11(b)(2)(A); see also 1993 18 Comments to Fed. R. Civ. P. 11 (sanctions may include striking the offending paper, issuing an 19 admonition reprimand, or censure, requiring participation in seminars or other educational 20 programs, ordering a fine payable to the court or fees to the moving party, and referring the 21 matter to disciplinary authorities). However, sanctions may be imposed even when only a 22 portion, not the entirety, of a pleading is frivolous. See Holgate, 425 F.3d at 676–77 (affirming 23 Rule 11 sanctions based solely on finding that one of the plaintiffs’ claims lacked legal merit) 24 (quoting Townsend, 929 F.2d at 1364). The Court has broad discretion to choose the appropriate 25 type of sanction to achieve Rule 11’s goal of deterring future violations. Link v. Wabash R.R. 26 Co., 370 U.S. 626, 633 (1962). “If [the court] decides not to impose sanctions, some reasoned 27 basis for deciding not to do so is required . . . .” Warren v. Guelker, 29 F.3d 1386, 1390 (9th Cir. 28 /// 1 1994); see also Townsend, 914 F.2d at 1144 (cautioning that district courts should give “thorough 2 explanations of their reasons for imposing sanctions.”). 3 III. ANALYSIS 4 A. Safe Harbor 5 As an initial matter, the Court finds Defendants complied with the procedural 6 requirements of Rule 11(c)’s safe harbor provision. Defendants provided Plaintiffs a copy of the 7 proposed Rule 11 Motion and began the meet and confer process on January 15, 2020 and did not 8 file the instant Motion until April 14, 2020. (See ECF No. 148; ECF No. 148-2 at 2); Fed. R. Civ. 9 P. 11(c)(2). Thus, Plaintiffs had well over the 21 days required under the safe harbor provision to 10 respond. 11 Plaintiffs do not argue Defendants failed to comply with the safe harbor provision. 12 Rather, Plaintiffs argue Defendants harassed Mr. Thorn for months before filing the instant 13 Motion, then filed the motion at a time when Mr. Thorn was experiencing personal hardships as 14 well as facing filing deadlines for opposing multiple motions to dismiss the SAC.4 (ECF No. 151 15 at 2, 4.) Indeed, Plaintiffs appear to argue Defendants themselves violated Rule 11 with this 16 “harassing” behavior and request sanctions for costs incurred to oppose Defendants’ Motion. (Id. 17 at 2.) Plaintiffs’ argument is unavailing. 18 The Ninth Circuit has upheld Rule 11 sanctions against attorneys for failing to conduct the 19 required reasonable inquiry prior to filing, even where the attorney had only a short amount of 20 time in which to file a pleading. See, e.g., Business Guides v. Chromatic Communications 21 Enters., 892 F.2d 802, 812–13 (9th Cir. 1989) (attorney’s deficient inquiry was not excused by 22 the purportedly short time frame he had to complete a reasonable inquiry prior to filing initial 23 TRO papers, including only two hours to review an affidavit prior to filing). Here, by contrast, 24 Defendants not only provided Mr. Thorn the proposed Rule 11 Motion nearly three months prior 25 26 4 In reply, Defendants assert Mr. Thorn never informed them of the personal hardships he was dealing with at that time. A review of the docket also reflects Plaintiffs did not request any 27 extensions of time for any of their filings. Further, the motion for sanctions was filed on April 14, 2020, over two months after Plaintiffs filed their multiple oppositions to the motions to dismiss 28 the SAC. (Compare ECF Nos. 134, 135, 136, 140, 141 with ECF No. 148.) 1 to filing the Motion, they also commenced informal meet and confer discussions as early as June 2 4, 2019, when they initially provided Plaintiffs copies of Sonny’s criminal case records. (See 3 ECF No. 148-2 at 2–3, 5–28; ECF No. 156 at 2.) Thus, Mr. Thorn had ample time to consider 4 Defendants’ requests to remove the contested allegations prior to the filing of the instant Rule 11 5 Motion. Further, the Court declines to construe defense counsel’s generous attempts to 6 accommodate Mr. Thorn’s scheduling needs during the meet and confer process as “harassment.” 7 Plaintiffs’ request for Rule 11 sanctions is therefore DENIED. 8 B. Adequate Factual and Legal Basis 9 A claim is “well grounded in fact if an independent examination reveals some credible 10 evidence in support of a party’s statements.” Himaka v. Buddhist Churches of Am., 917 F. Supp. 11 698, 710 (N.D. Cal. 1995) (citations and internal quotations omitted). A claim that has some 12 plausible basis, even a weak one, is sufficient to avoid sanctions under Rule 11. See United Nat’l 13 Ins. Co. v. R&D Latex Corp., 242 F.3d 1102, 1117–18 (9th Cir. 2001). 14 Here, Defendants move for Rule 11 sanctions on the basis that several of Plaintiffs’ 15 factual contentions lack evidentiary support because they are either contradicted by the record or 16 inconsistent with Plaintiffs’ prior allegations, or they consist of facts that Plaintiffs could neither 17 know nor infer from any source. (ECF No. 148-1 at 6.) In light of the fact that the Court has 18 since dismissed the entire SAC in part due to Plaintiffs’ failure to state a claim or comply with 19 threshold pleading requirements under Rule 8 (see ECF No. 159 at 7–9), the Court finds the first 20 prong of the Rule 11 inquiry is satisfied. See Holgate, 425 F.3d at 676–77 (claim lacked legal 21 merit where it failed to meet threshold Rule 8 pleading requirements); Christian, 286 F.3d at 22 1127. However, the Court additionally finds the specific allegations contested by Defendants 23 lack an adequate factual or legal basis for the reasons further discussed herein. 24 Specifically, Defendants provide six examples of the purportedly baseless claims, which 25 the Court will address in turn: (1) judicial deception regarding obtaining warrants (ECF No. 148-1 26 at 14–15); (2) jail classification/interrogation regarding gang affiliation (id. at 15–19); (3) ex 27 parte affidavits (id. at 19–20); (4) continuances and dismissal (id. at 20–21); (5) perjury and 28 bribery (id. at 21–22); and (6) Gorman’s “testimony” about gang membership (id. at 22–23). 1 i. Judicial Deception Regarding Obtaining Warrants 2 Defendants challenge Plaintiffs’ new allegation that Gorman and Couzens provided legal 3 advice to the Defendant officers on how to successfully apply for warrants using false 4 information: 5 On inforamtion and belief, Winger, Crouch, and Stallions contacted Groman and Couzens for legal advice about proceeding with the 6 troubling confiramtion that Altamrinao was not telling the truth. On infroamtion and belief and based on what trasnpired, Gorman and 7 Couzens advised Winger and Stallions they could apply for warrants with false affidavits that conelaed the fact there was no digital 8 evidnce to corrobroate Altrmiranos story and misrepresented that: Sonny Martinez as a violent gang member and memebr of the Bario 9 Franklin Norteno street gang; that Sonny Marteinz has an extensive criminal hsitory that incldues gang activity; that the shooting was 10 gang related when there was not one scrap of evidnce a gang memebr shot Alize Valadez or shot Alize Valdez for a gang; that grossly 11 misrepresemnted the eye witness statement; misrepresneted the scene; compeltely fabricated a story about an anonymous call that 12 does not exist; compeletlyy fabricated a story about the need to seal the PC affidavits to protect the witness when, had Altamirnao’s story 13 been true and Sonny Martiez been the real shooter, the police disclosed his identify in one of the frist questions of their 14 interrogation of Sonny Marteinz (Who did you call?); the complelty fabricated story that Altamrinao did not ask for money when Zwicky 15 and the other members of the cosniarcy knew all along he expected money and would be paid by the Stockton Police Deaprtment in the 16 ordinary course under its custom and practice; and the penultimate fraud on the court that Altaminrao is relaible, and other equally 17 appaling and illega miscondcut. 18 (Id. at 14 (quoting ECF No. 116 ¶ 204 (grammar and spelling errors in original)5).) Defendants 19 argue Plaintiffs articulate no reasonable factual basis for this claim, which cannot be saved merely 20 by affixing the phrase “on information and belief.” (Id. at 14–15.) Further, Defendants submit 21 declarations in which Gorman avers he did not advise the police to make any false statements, nor 22 was he aware that any facts gathered by the police were untrue, and Couzens avers he had no 23 discussion with the police regarding the pre-complaint warrants whatsoever.6 (Id. at 15; ECF No. 24 5 The quoted passage is but one example of the swamp of incoherent arguments, 25 misspellings, and grammatical errors that the Court was required to wade through in order to 26 accomplish a merits review of the instant motion. Counsel is cautioned to take better care in drafting his pleadings in the future. 27 6 Indeed, this allegation appears to be contradicted — at least as asserted against Gorman — 28 by allegations in Plaintiffs’ April 27, 2016 government tort claim, in which they allege “Gorman 1 148-3 at 3; ECF No. 148-4 at 2; see also ECF No. 148-2 at 2 (declarations provided to counsel 2 during meet and confer on January 30, 2020).) 3 In opposition, Plaintiffs appear to concede that they have no direct evidence of the facts 4 asserted in ¶ 204, but instead assert that a reasonable inference of the conspiracy and Gorman and 5 Couzens’s liability may be drawn based on unspecified “circumstantial evidence (documents and 6 testimony)” in Mr. Thorn’s possession, that asserting an allegation “on information and belief” is 7 appropriate under these circumstances, and that sanctions should be denied at this time because 8 Plaintiffs expect discovery to provide information that establishes Gorman and Couzens’s 9 liability. (See ECF No. 151 at 11–13.) Plaintiffs additionally appear to argue the allegation is 10 supported in a general sense because all knowledge of the Valadez investigation is imputed to 11 Gorman and Couzens based on the “presumption and duties and common knowledge” that 12 “investigating officers and prosecutors have a ‘closely aligned’ working relationship.” (Id. at 8– 13 9.) The Court finds Defendants have the better arguments. 14 a) “On Information and Belief” 15 Defendants correctly note the context of ¶ 204 does not suggest the allegations are to be 16 inferred from circumstantial evidence and other presumptions, as Plaintiffs now argue. (Id. at 11; 17 ECF No. 156 at 6.) Rule 11(b) provides that, by submitting a pleading to the court, the signatory 18 is always certifying that “to the best of the person’s knowledge, information, and belief, formed 19 after an inquiry reasonable under the circumstances,” the allegations submitted in the pleading 20 have a factual and evidentiary basis. Fed. R. Civ. P. 11(b). At most, alleging certain facts “on 21 information and belief” may connote the plaintiff lacks personal knowledge about certain facts 22 but has obtained hearsay evidence or other secondhand information. See McGuire v. Recontrust 23 Co., No. 2:11-CV-2787 KJM-CKD, 2013 WL 3863903, at *6 (E.D. Cal. Jul. 24, 2013); see also 24 Exergen Corp. v. Wal–Mart Stores, Inc., 575 F.3d 1312, 1330 (Fed. Cir. 2009) (“Pleading on 25 ‘information and belief’ is permitted under Rule 9(b) when essential information lies uniquely 26 within another party’s control, but only if the pleading sets forth the specific facts upon which the 27 discovered the police officers filed false and misleading affidavits to obtain the warrants” after 28 Sonny was arrested. (See ECF No. 132-3 at 9.) 1 belief is reasonably based.”). Nonetheless, the addition of the phrase “on information and belief” 2 to an allegation is typically surplusage where it is already required by the Rule and therefore 3 presumed. See Gaudin v. Saxon Mortg. Servs. Inc., No. C 11-1663 RS, 2011 WL 5825144, at *2 4 (N.D. Cal. Nov. 17, 2011). Alternatively, if a party does not have evidentiary support for his 5 allegation at the time of filing but “will likely have evidentiary support after a reasonable 6 opportunity for further investigation or discovery,” Rule 11 expressly requires that the allegation 7 be identified as such. Fed. R. Civ. P. 11(b)(3). 8 Here, Plaintiffs allege an incredibly fact-specific account of a conversation between the 9 prosecutors and investigating officers that suggests it is based on fact and direct evidence, rather 10 than inference. (See ECF No. 116 ¶ 204.) Plaintiffs do not expressly indicate, as required under 11 Rule 11(b)(3), that the allegation is only “likely to have evidentiary support” after discovery. 12 (See id.); Fed. R. Civ. P. 11(b)(3). Accordingly, the allegation has been certified as having 13 evidentiary support, to the best of counsel’s knowledge, information, and belief, based on a 14 reasonable pre-suit inquiry. Fed. R. Civ. P. 11(b); Gaudin, 2011 WL 5825144, at *2. Plaintiffs’ 15 use of the phrase “on information and belief,” might be construed to connote that Plaintiffs 16 possess some form of hearsay or secondhand evidence of the identified conversation to support 17 their claim. See McGuire, 2013 WL 3863903, at *6. However, Plaintiffs fail to include any 18 factual support or to suggest the source of information they relied on in formulating this specific 19 claim against Gorman and Couzens in the SAC or in opposition to the instant Motion. See id. 20 (rejecting claims made “on information and belief” where the plaintiff failed to include “any 21 factual support even suggesting the source of the information or other detail rendering the claims 22 plausible”); see also In re Connetics Corp. Sec. Litig. (Connetics), 542 F. Supp. 2d 996, 1005–06 23 (N.D. Cal. 2008) (finding plaintiffs failed to personally investigate their claims against the 24 defendants where plaintiffs did not indicate to the court what sources were used to support the 25 specific contested claims). Simply affixing the term “on information and belief” to ¶ 204 does 26 not grant Plaintiffs free license to assert a multitude of specific facts without any evidentiary 27 basis. See 1993 Comments to Fed. R. Civ. P. 11 (allegations made “on information and belief . . . 28 is not a license to join parties, make claims, or present defenses without any factual basis or 1 justification”); see also Delphix Corp. v. Actifo, Inc., No. C 13-4613 RS, 2014 WL 4628490, at 2 *1 (N.D. Cal. Mar. 19, 2014) (“Despite the common appearance of that phrase in practice, it is 3 not a recognized pleading device under the rules” but rather “creates [an] inference that plaintiff 4 likely lacks knowledge of underlying facts to support the assertion, and is instead engaging in 5 speculation to an undue degree.”). Therefore, Plaintiffs’ use of the phrase “on information and 6 belief does not relieve [them] from the obligation to conduct an appropriate investigation into the 7 facts that is reasonable under the circumstances.” Id. at *2 n.3; 1993 Comments to Fed. R. Civ. P. 8 11. 9 To the extent Plaintiffs attempt to pivot from their initial position by now asserting the 10 specific factual allegations put forth in ¶ 204 were not supported by evidence, but merely a 11 reasonable inference for which Plaintiffs expected to find evidentiary support through future 12 discovery, Plaintiffs’ arguments are unavailing. As previously noted, no such caveat is asserted 13 in the SAC. See Fed. R. Civ. P. 11(b)(3); Gaudin, 2011 WL 5825144, at *2. Consequently, by 14 asserting such a position now, Plaintiffs concede they violated Rule 11(b)(3) at the time they filed 15 the SAC. The remainder of Plaintiffs’ argument is hopelessly circular: they essentially argue that, 16 because Defendants all knew Sonny was innocent but agreed to put him in jail anyway, it may be 17 inferred from the fact that the magistrate judge issued warrants that the officers told the 18 prosecutors Altamirano was lying and the prosecutors conspired with the officers to submit 19 falsified affidavits in order to obtain the warrants. For the foregoing reasons, Plaintiffs fail to 20 demonstrate any factual or evidentiary basis for the allegations in ¶ 204 exists. See McGuire, 21 2013 WL 3863903, at *6; Connetics, 542 F. Supp. 2d at 1005–06. 22 b) Presumption of Knowledge 23 Plaintiffs’ alternative argument that the specific conversation described in ¶ 204 may be 24 inferred based on the widely accepted principle that prosecutors and police have a “closely 25 aligned working relationship” is unsupported in law. The cases cited by Plaintiffs are 26 distinguishable because they all relate to a prosecutor’s duty to disclose exculpatory evidence in a 27 criminal case under Brady v. Maryland, 373 U.S. 83 (1963). See, e.g., In re Brown, 17 Cal. 4th 28 873, 879–80 (1998); Smith v. Sec’y of N.M. Dep’t of Corr., 50 F.3d 801, 824–25 (10th Cir. 1995); 1 Kyles v. Whitley, 514 U.S. 419, 437–38 (1995). In short, under Brady and its progeny, the police 2 are considered agents of the prosecutor, such that any knowledge of exculpatory evidence is 3 imputed to the prosecutors. See id. Plaintiffs do not identify any case law that equates imputed 4 knowledge under Brady to actual knowledge for purposes of establishing a civil conspiracy claim. 5 Cf. ESG Capital Partners, LP v. Stratos, 828 F.3d 1023, 1039 (9th Cir. 2016) (“[C]onspiracy 6 involves actual knowledge of the plan.”). Indeed, some of the cases on which Plaintiffs rely 7 clearly indicate this imputed knowledge principle is limited to Brady claims. See, e.g., Smith, 50 8 F.3d at 824 (“For purposes of Brady, ‘knowledge by police of investigators is . . . imputed to the 9 prosecution.’”); see also id. at 825 (“[T]he police are considered agents of the prosecution for 10 Brady purposes”). For these reasons, Plaintiffs’ argument is unavailing. 11 c) Applicability of Affidavits in Rule 11 Inquiry 12 Finally, Plaintiffs fail to substantively address Gorman and Couzens’s declarations. 13 Rather, they dismiss the declarations out of hand as “scant” and self-serving.7 (See ECF No. 151 14 at 12.) But Ninth Circuit caselaw indicates such evidence is pertinent to a Rule 11 inquiry. In 15 Townsend v. Holman Consulting Corporation, for example, the plaintiff brought claims in federal 16 court to compel his employer’s Employee Benefit Plan (“Plan”) to pay certain medical benefits 17 after an unsuccessful state court action. Townsend, 914 F.2d at 1139. In addition to other 18 defendants, the plaintiff sued the law firm that managed the Plan, alleging that the firm advised 19 the Plan to adopt certain challenged provisions, counseled the Plan’s administrators to not make 20 certain payments to the plaintiff, and improperly obstructed the plaintiff’s unsuccessful state court 21 suit. Id. After the filing of the initial complaint, the firm defendant filed a motion to dismiss and 22 provided sworn affidavits that it had nothing to do with the adoption, implementation, or 23 administration of the Plan and that the firm was retained only for the purpose of litigation. Id. 24 7 Alternatively, Plaintiffs contend Defendants’ Rule 11 Motion must be rejected as nothing 25 more than a thinly-disguised partial-summary judgment motion. (ECF No. 151 at 7.) However, 26 the aforementioned authorities demonstrate this contention is unsupported in law, as courts may consider affidavits in Rule 11 motions even at the motion to dismiss stage. See, e.g., Townsend, 27 914 F.2d at 1139–40; Regents of Univ. of Cal. on behalf of UC Davis Health Sys. v. Stidham Trucking Inc., No. 16-cv-02835-MCE-CKD, 2018 WL 338998, at *1 (E.D. Cal. Jan. 8, 2018) 28 (granting motion for sanctions filed alongside motion to dismiss original complaint). 1 The plaintiff did not offer any evidence to rebut the affidavits. Id. Instead, he filed a first 2 amended complaint in which he continued to allege the defendant’s involvement in the 3 implementation and administration of the Plan. Id. The district court found the plaintiff had 4 conducted absolutely no inquiry before filing the first amended complaint and it was undisputed 5 that the law firm played no role in the actions of the Plan which gave rise to the plaintiff’s claims 6 against the other defendants. Id. The Ninth Circuit upheld the district court’s findings that 7 sanctions were warranted on this basis. Id. at 1144. 8 Similarly here, defense counsel mailed Gorman and Couzens’s declarations to Plaintiffs 9 on January 30, 2020, in advance of filing the instant Motion. (See ECF No. 148-2 at 2.) Under 10 Rule 11, Mr. Thorn was required to investigate the veracity of the affidavits to determine whether 11 any factual basis existed for the contested allegations in the SAC. There is no indication that he 12 did so. Rather, Plaintiffs refused to withdraw the allegations, and their opposition to the instant 13 Motion does not rebut the declarations or provide any evidentiary basis for refusing to withdraw 14 the contested allegations from the SAC. (See id. at 27; see also generally ECF No. 151.) It is 15 therefore undisputed that Gorman did not advise the police to make any false statements, nor was 16 he aware that any facts gathered by the police were untrue, and Couzens had no discussion with 17 the police regarding the pre-complaint warrants whatsoever. (ECF No. 148-3 at 3; ECF No. 148- 18 4 at 2); see Townsend, 914 F.2d at 1139. 19 For this reason, as well, the allegations set forth in ¶ 204 are factually and legally baseless 20 from an objective perspective. Christian, 286 F.3d at 1127. 21 ii. Jail Classification/Interrogation Regarding Gang Affiliation 22 Defendants challenge Plaintiffs’ new allegation in the SAC that Couzens forged a 23 classification form: 24 On information and belief, Couzens gang expert told Couzens he had no case for the gang enhancements Gorman filed against Sonny, so 25 Couzens enlisted the assistance of Doe 55 to fabricate evidence against Sonny using the blank form Sonny signed and information 26 from some very stale documents that are of dubious, at best, and of unknown origin that is not the product of a due process hearing or 27 proceeding. Doe 55 agreed to help Couzens and filled out the form Sonny was ordered to sign in black to make it appear as if Sonny 28 admitted to a lifetime of gang membership, which is false and as of 1 the time he was arrested for the Alize Valdez shooting Sonny had never joined a street gang; had never been a member of a street gang; 2 had never been arrested for a gang related crime . . . . 3 (ECF No. 148-1 at 15–16 (quoting ECF No. 116 ¶ 330 (grammar and spelling errors in 4 original)).) Defendants argue the allegation that Couzens essentially “framed” Sonny as a gang 5 member is not only belied by myriad evidence of Sonny’s prior gang involvement previously 6 available to Plaintiffs, it is also contradicted by Plaintiffs’ prior allegations. (Id. at 16–19.) 7 Further, in the declaration Defendants provided Plaintiffs in advance of this Motion, Couzens 8 avers he “did not contact, consult with, advise or otherwise have any conversation, directly or 9 indirectly, whatsoever with any jail classification officer or officers regarding the preparation of 10 Plaintiff Sonny Martinez’s October 27, 2015 jail classification, or his intake process.” (ECF No. 11 148-3 at 4.) 12 In opposition, Plaintiffs do not dispute the authenticity or accuracy of the evidence from 13 Sonny’s criminal case file showing almost 20 years of gang history. Nor do Plaintiffs address 14 Couzens’s declaration. Instead, Plaintiffs dispute Defendants’ characterization of the evolving 15 allegations in the complaints and argue the allegation is sufficient because it was made “on 16 information and belief.” (ECF No. 151 at 13–14.) Again, Defendants have the better argument. 17 First, the contested allegation appears to be based on a completed jail classification form 18 that Couzens disclosed to Sonny’s public defender during discovery in the criminal case. (See 19 ECF No. 148-3 at 2, 6–8.) Also included in the criminal case file are booking photographs of 20 Sonny covered in established gang tattoos and classification forms from a different jail in which 21 Sonny previously admitted gang membership. (Id. at 4, 143–156.) This evidence, which has 22 been in Plaintiffs’ possession prior to the initiation of this lawsuit — and at the latest was served 23 on Plaintiffs with Defendants’ motion to dismiss the FAC — demonstrates Plaintiffs’ allegation 24 that Sonny was never a gang member and any documents stating such are of “dubious, unknown 25 origin” is not “well-grounded” in fact. Fed. R. Civ. P. 11(b); Ricks, 31 F.3d at 1488. 26 With respect to prior allegations, the FAC alleged Sonny was interrogated at the jail and 27 forced to sign the gang classification questionnaire without first receiving Miranda warnings (in 28 /// 1 violation of his Fifth and Sixth Amendment rights).8 (ECF No. 71 ¶¶ 255–59.) Because a Fifth 2 Amendment claim will only lie where the accused is compelled to make a “testimonial 3 communication” that is incriminating, Fisher v. United States, 425 U.S. 391, 408 (1986), the clear 4 import of Plaintiffs’ allegations in the FAC is that Sonny signed the classification form after 5 writing incriminating gang-related information in the form outside the presence of an attorney. 6 Yet these allegations directly contradict the SAC, which removes all allegations concerning 7 interrogation — thus suggesting Sonny was not interrogated at all — while including the new 8 allegation that Sonny was forced to sign a blank gang classification questionnaire form that 9 Couzens later forged to include incriminating gang-related statements. (Compare ECF No. 71 ¶¶ 10 255–259 with ECF No. 116 ¶¶ 330, 332, 333.) Plaintiffs may not amend pleadings to directly 11 contradict an earlier assertion made in their prior pleadings. See Airs Aromatics, Ltd. Liab. Co. v. 12 Victoria’s Secret Stores Brand Mgmt., 744 F.3d 595, 600 (9th Cir. 2014). Such contradictory 13 allegations are considered “false and sham” and thus indicative of a lack of legal or factual basis 14 for the claim. See Stearns v. Select Comfort Retail Corp., 763 F. Supp. 2d 1128, 1144–45 (N.D. 15 Cal. 2010); see also Christian, 286 F.3d at 1129 (upholding issuance of sanctions based on 16 “chameleon” or “flip-flopping” pleading). 17 For the reasons previously discussed, Plaintiffs’ failure to address Couzens’s declaration 18 is also problematic. See Townsend, 914 F.2d at 1139–44. Because Plaintiffs do not refute the 19 declaration or identify any source of information upon which they base their new allegation, it is 20 undisputed that Couzens did not discuss Sonny’s jail classification form with any jail officer. See 21 id.; see also Connetics, 542 F. Supp. 2d at 1005–06. 22 Based on this record, the Court finds the contested allegation is factually baseless from an 23 objective perspective. Christian, 286 F.3d at 1127, 1129; Stearns, 763 F. Supp. 2d at 1144–45. 24 /// 25 /// 26 27 8 Incidentally, this allegation in the FAC is contradicted, in turn, by the allegation in the original Complaint that Sonny was Mirandized when he was “booked into the jail.” (ECF No. 1 ¶ 28 246.) 1 iii. Ex Parte Affidavits 2 Defendants challenge Plaintiffs’ allegation that “Gorman and Couzens filed ex-parte 3 affidavits with the criminal court bearing on Sonny’s right to bail but failed to disclose the ex- 4 parte communications to Sonny and his public defender . . . .” (ECF No. 148-1 at 19 (quoting 5 ECF No. 116 ¶ 397).) A simple review of the criminal case court records reveals no such ex 6 parte affidavits exist or were ever submitted to the state court. (See ECF No. 148-3 at 14–76.) 7 As previously noted, these records were available to Plaintiffs long before this action was 8 initiated. Mr. Thorn, an experienced attorney, should reasonably have known how to review a 9 court docket and case file and would have swiftly recognized the existence or absence of any 10 affidavits relating to a bail request. Plaintiffs fail to address this argument at all, and therefore 11 concede the argument. Accordingly, the Court concludes this contested allegation is not “well- 12 grounded” in fact. Fed. R. Civ. P. 11(b); Ricks, 31 F.3d at 1488. 13 iv. Continuances and Dismissal 14 Defendants challenge several portions of Plaintiffs’ allegations in the SAC relating to the 15 contention that Couzens sought multiple continuances of the preliminary hearing in Sonny’s 16 criminal case in order to keep Sonny in jail: 17 1. “[E]very time Couzens was facing a preliminary hearing, he sought and obtained continuances until the court refused to grant him 18 any more continuances . . . “ (¶ 207.) 19 2. “[On December 18, 2015] the People asked for yet another continuance . . . .” (¶ 361.) 20 3. “[On December 18, 2015] [t]he court denied the motion for 21 another continuance . . . .” (¶ 362.) 22 4. “Couzens . . . sought five continuance[s] of the preliminary hearing . . . .” (¶ 402.) 23 24 (ECF No. 148-1 at 20–21 (quoting ECF No. 116 ¶¶ 207, 361–362, 402).) Defendants point out 25 these allegations are also directly contradicted by the criminal court records that have long been 26 in Plaintiffs’ possession. (ECF No. 148-1 at 11, 20–21.) Specifically, the criminal case docket 27 and transcripts of each proceeding show Couzens only requested two continuances. (ECF No. 28 /// 1 148-3 at 14–140.) Moreover, the transcript of the December 18, 2015 proceeding plainly shows 2 Couzens did not seek a continuance. (Id. at 127–133.) Rather, he asked to dismiss the case. (Id.) 3 In opposition, Plaintiffs dispute that the docket and related court documents of Sonny’s 4 criminal case submitted by Defendants constitute the “entire record” of the case and vaguely 5 allude to unspecified “witness testimony and documents” that support Plaintiffs’ allegation that 6 Couzens requested five continuances of the preliminary hearing. (ECF No. 151 at 9–10.) It is 7 unclear what Plaintiffs mean by this argument. Plaintiffs do not identify any actual documents or 8 records they purport are missing from the collective criminal file produced by Defendants. Nor 9 do Plaintiffs contend any filings or proceedings occurred which are not reflected on the docket. 10 Indeed, the cover page to the court records submitted by Defendants is expressly certified by the 11 clerk of Yolo County Superior Court to include the “ENTIRE COURT FILE,” and Plaintiffs do 12 not appear to challenge the authenticity or accuracy of this document. (ECF No. 148-3 at 15 13 (emphasis in original).) 14 Alternatively, Plaintiffs appear to argue the allegation is founded because some of 15 Couzens’s requests for continuances were made to the public defender rather than the criminal 16 court, not all of his requests for continuances were in writing, and not all requests for 17 continuances were reported. (ECF No. 151 at 10.) However, Plaintiffs’ attempt to recharacterize 18 the allegations to include informal, off-the-record requests for continuances not made to the court 19 is not well-taken. Plaintiffs expressly allege Couzens “sought and obtained continuances,” which 20 requires that the requests were, in fact, made to the court and granted by the court. 21 In sum, the court records unequivocally refute Plaintiffs’ allegation that Couzens sought 22 five continuances of the preliminary hearing. (See ECF No. 148-3 at 14–140.) Mr. Thorn, an 23 experienced attorney, should reasonably have known how to review a court docket and case file 24 and would have swiftly recognized the absence of additional motions or other requests to 25 continue the preliminary hearing date. The Court therefore finds the contested allegation is 26 factually baseless from an objective perspective. Christian, 286 F.3d at 1127, 1129; Stearns, 763 27 F. Supp. 2d at 1144–45. 28 /// 1 v. Perjury and Bribery 2 Defendants contest the following new allegation in the SAC concerning perjured 3 testimony and bribery: 4 Zwicky agreed to give perjured testimony at the preliminary hearing and tell the court Altamirano was a reliable informant even though 5 he and all the other co-conspriaotrs had known since before Sonny was arrested that Altamirano was lying and Sonny was innocent; and 6 Zwciky sought and and obtained autroity from Couzens to bribe Altrmaino with publi money from the coffers of the Stockton Police 7 Deaprtment to get him to a prelimianry hearing to give perjured testiomny. 8 9 (ECF No. 184-1 at 21 (quoting ECF No. 116 ¶ 364 (grammar and spelling errors in original)).) 10 Defendants argue the allegation is not well-grounded in fact because Plaintiffs allege no facts 11 showing how they gained knowledge of a purportedly secret conversation between Zwicky and 12 Couzens. (Id. at 22.) Defendants also argue the allegation lacks a reasonable legal basis because 13 testimony that a witness is “reliable” is impermissible in court. (Id. (citing People v. Coffman, 34 14 Cal. 4th 1, 82 (2004) (court erred in permitting expert to give opinion as to whether witness was 15 credible); People v. Melton, 44 Cal. 3d 713, 744 (1988) (“Lay opinion about the veracity of 16 particular statements by another is inadmissible”); People v. Sergill, 138 Cal. App. 3d 34, 39–40 17 (1982) (officers may not give testimony “assessing veracity of those who make reports to 18 police”)); see also Cal. Evid. Code §§ 702, 801, 805 (establishing limitations to scope of lay and 19 expert witness testimony). Defendants additionally point out the email Couzens sent to Sonny’s 20 criminal counsel on December 3, 2015 — which is presumably the basis for Plaintiffs’ allegation 21 — states Couzens did not intend to call Altamirano as a witness and that Zwicky had requested to 22 pay Altamirano as an informant, not that Couzens provided authorization to do so.9 (See ECF No. 23 148-3 at 157–58.) Finally, Couzens’s declaration expressly avers that there was no agreement to 24 /// 25 9 Specifically, the letter states Couzens was going to “Prop 115” Altamirano’s statement at 26 the preliminary hearing, which Defendants indicate (and Plaintiffs do not dispute) means Altamirano would not be called as a witness but his statement would be read to the court by a law 27 enforcement witness. See Cal. Const. Art. I, Sec. 30(b) (permitting hearsay evidence at preliminary hearings); Cal. Pen. Code § 872(b) (permitting an officer to read declarant statement 28 at probable cause hearing). 1 provide false testimony or authority to offer a bribe. (Id. at 5.) Each of Defendants’ arguments is 2 persuasive. 3 In opposition, Plaintiffs argue they possess a “mountain of direct and circumstantial 4 evidence to prove the allegation and prove that all the defendants knew Altamirano was lying.” 5 (ECF No. 151 at 10 (emphasis in original).) However, Plaintiffs do not actually identify any of 6 that evidence, or show how it supports the allegation of an agreement to give perjured testimony 7 or to bribe Altamirano to give perjured testimony at the preliminary hearing. McGuire, 2013 WL 8 3863903, at *6; Connetics, 542 F. Supp. 2d at 1005–06. Importantly, Plaintiffs neither address 9 Defendants’ legal argument nor provide contrary authority in support of their position that an 10 officer may provide testimony regarding the credibility of another witness. Nor do Plaintiffs 11 identify any basis for knowing the manner in which Couzens intended to conduct the preliminary 12 hearing, as it never happened. Id. Stated another way, because there was no preliminary hearing 13 and no testimony was ever given, the Court cannot draw any inference that Defendants acted a 14 certain way because they conspired to do so. 15 Additionally, since the December 3, 2015 email indicates Couzens did not intend to call 16 Altamirano as a witness, it plainly contradicts Plaintiffs’ allegation that Couzens approved bribing 17 Altamirano to give false testimony at the preliminary hearing. Finally, Plaintiffs do not refute or 18 even address Couzens’s declaration that there was no agreement to provide false testimony or 19 authority to offer a bribe, thus essentially conceding the argument. Townsend, 914 F.2d at 1139; 20 see also Grynberg v. Ivanhoe Energy, Inc., 663 F. Supp. 2d 1022, 1024–26 (D. Colo. 2009) 21 (finding allegations lacked a sufficient evidentiary basis where Rule 11 motion included an 22 affidavit stating the defendant never bribed the public official, as alleged, but the plaintiffs 23 “present[ed] no valid argument that they had adequate evidentiary support for the specific 24 allegations. . . .”). 25 Based on the foregoing, the Court finds Plaintiffs’ allegation is factually and legally 26 baseless from an objective perspective. Christian, 286 F.3d at 1127. 27 /// 28 /// 1 vi. Gorman’s “Testimony” About Gang Membership 2 Defendants challenge Plaintiffs’ allegations that Gorman falsely “testified” against Sonny: 3 Gorman knew when he testified as a witness under oath that the allegations in the criminal complaint were not true; that Altamirano 4 was lying about the call; and that Sonny was innocent of the charges. . . . 5 Sonny was not a street gang member as . . . Gorman testified under 6 oath. 7 (ECF No. 148-1 at 22–23 (quoting ECF No. 116 ¶¶ 341, 350).) Defendants again point out this 8 allegation is directly contradicted by the criminal court records that have long been in Plaintiffs’ 9 possession. (Id. at 23.) Specifically, the entirety of the record shows Gorman never “testified as 10 a witness” in any proceeding and, at most, signed the criminal complaint. (See ECF No. 148-3 at 11 14–140.) 12 In opposition, Plaintiffs appear to concede the only “testimony” Gorman provided 13 occurred when he signed and filed the criminal complaint. Instead, they argue the allegation is 14 nevertheless supported because it may be reasonably inferred from the fact that Gorman knew 15 Altamirano was lying, that Sonny was innocent of the charges, and that he was no longer a gang 16 member or affiliate at the time of the Valadez shooting. (See ECF No. 151 at 14.) Further, 17 Plaintiffs reassert that Gorman’s knowledge of these facts may be reasonably inferred under the 18 Brady doctrine. (Id.) Plaintiffs’ arguments are again unavailing. 19 First, the Court is not persuaded that a prosecutor’s filing of a criminal complaint is akin 20 to “testifying as a witness under oath” as construed in the SAC, and Plaintiffs cite no authority of 21 any kind that makes this equivocation. Second, while Plaintiffs contend they have testimonial 22 evidence to establish Sonny was not a gang member at the time the shooting occurred, they have 23 not identified any evidence or source of information they relied on to assert that Gorman knew 24 Sonny was no longer a gang member or affiliate at the time of the Valadez shooting (or that 25 Altamirano was lying and that Sonny was innocent of all charges). (See generally ECF No. 151 26 at 14–15); see also McGuire, 2013 WL 3863903, at *6. Indeed, Plaintiffs entirely fail to address 27 Gorman’s declaration, in which he avers he “was [not] aware that any facts gathered by the police 28 were untrue, nor was [he] ever told that the police were misrepresenting facts.” (ECF No. 148-4); 1 see Townsend, 914 F.2d at 1139–44; Connetics, 542 F. Supp. 2d at 1005–06. Further, as 2 previously determined, Plaintiffs have not demonstrated a legal basis for their inference argument 3 based on the Brady doctrine. Cf. ESG Capital Partners, LP, 828 F.3d at 1039; Smith, 50 F.3d at 4 824. Finally, to the extent they concede the absence of evidentiary support by arguing that an 5 inference is required, Plaintiffs’ allegation runs afoul of Rule 11(b)(3). Thus, Plaintiffs fail to 6 provide even a weak plausible basis to support their claim against Gorman. See United Nat’l Ins. 7 Co., 242 F.3d at 1117–18. 8 Based on the foregoing, the Court finds the contested allegations are each factually and 9 legally baseless from an objective perspective. Christian, 286 F.3d at 1127; Fed. R. Civ. P. 10 11(b); Ricks, 31 F.3d at 1488. 11 C. Reasonable and Competent Inquiry 12 The second prong of the Rule 11 analysis requires “a fact-intensive” determination as to 13 whether an attorney’s inquiry is reasonable under “all the circumstances of a case.” Townsend, 14 914 F.2d at 1142. Thus, Rule 11 creates and imposes on counsel an affirmative duty to 15 investigate the law and facts before filing. Rachel v. Banana Public, Inc., 831 F.2d 1503, 1508 16 (9th Cir. 1987). The lawyer may not delegate this duty to another person. See Unioil, Inc. v. E.F. 17 Hutton & Co., 809 F.2d 548, 558 (9th Cir. 1986) (“[A]n attorney who signs the pleading cannot 18 simply delegate to forwarding co-counsel his duty of reasonable inquiry.”); Sec. Farms v. Int’l 19 Bhd. of Teamsters, 124 F.3d 999, 1016–17, n.23 (9th Cir. 1997) (affirming Rule 11 sanctions for 20 failure to “conduct a reasonable inquiry” where counsel accepted statements by its investigator 21 and submitted them to the court, despite receiving prior notice of serious credibility and 22 authenticity issues). Nor may he blindly accept the word of his client. In re Kunstler, 914 F.2d 23 505, 514 (4th Cir. 1990) (“Blind reliance on the client is seldom a sufficient inquiry.”) To the 24 contrary, under Rule 11, an attorney is required “to dissuade a client from pursuing specious 25 claims, to avoid possible sanctions by the court, as well as unnecessary costs of litigating a 26 worthless claim.” Moser v. Bret Harte Union High Sch. Dist., 366 F. Supp. 2d 944, 977 (E.D. 27 Cal. 2005) (citation omitted). Also as previously determined, Plaintiffs’ use of the phrase “on 28 information and belief” does not relieve them from the obligation to “conduct an appropriate 1 investigation into the facts that is reasonable under the circumstances.” 1993 Comments to Fed. 2 R. Civ. P. 11; see also McGuire, 2013 WL 3863903, at *6; Connetics, 542 F. Supp. 2d at 1005– 3 06. 4 Here, Defendants argue the inclusion of the aforementioned contested factual allegations 5 — including the new allegations and claims impermissibly raised for the first time in the SAC — 6 indicates Plaintiffs’ counsel failed to perform his “nondelegable responsibility to personally . . . 7 validate the truth and legal reasonableness of the papers filed, and to conduct a reasonable factual 8 investigation” as required under Rule 11(b). (Id. (citing Connetics, 542 F. Supp. 2d at 1005).) 9 The Court is inclined to agree. 10 Defendants submitted undisputed evidence that directly contradicts the contested 11 allegations and demonstrates they lack any factual or legal basis. The vast majority of this 12 evidence — which arises from Sonny’s own criminal case file — was not only available to 13 Plaintiffs at the time the criminal case occurred (in 2015) but was additionally provided to 14 Plaintiffs multiple times thereafter: on June 4, 2019, during Defendants’ initial informal meet and 15 confer efforts after being joined in this action (ECF No. 156 at 2); on June 10, 2019, with the 16 filing of Defendants’ motion to dismiss the FAC (ECF Nos. 107-2, 107-3); on December 16, 17 2019, when Defendants moved to dismiss the SAC (ECF Nos. 132-2, 132-4); and on January 15, 18 2020, during formal meet and confer communications related to the instant Motion (ECF No. 19 148-2 at 2). 20 In opposition, Plaintiffs argue Mr. Thorn’s investigation was reasonable and competent 21 because it included meeting with and obtaining documents from Sonny, scrutinizing the Yolo 22 County Public Defender’s case files, and interviewing multiple witnesses and experts. (ECF No. 23 151 at 5–7.) However, regardless of Mr. Thorn’s subjective intent, his actions must be measured 24 against the objective standard of a competent attorney admitted to practice before the district 25 court. Wilson, 326 F.3d at 1109 (citing Zaldivar, 780 F.2d at 830); see also Ricks, 31 F.3d at 26 1488 (“Counsel can no longer avoid the sting of Rule 11 sanctions by operating under the guise of 27 a pure heart and empty head.”). As previously noted, a “reasonable inquiry” is that amount of 28 examination into the facts and legal research which is reasonable under “all the circumstances of 1 a case.” Townsend, 914 F.2d at 1142. Furthermore, “the conclusion drawn from the research 2 undertaken must itself be defensible. Extended research alone will not save a claim that is 3 without legal or factual merit from the penalty of sanctions.” Zaldivar, 780 F.2d at 831. 4 Here, a competent attorney, having conducted an objectively reasonable inquiry into the 5 criminal case file records and law, would have concluded that the aforementioned contested 6 allegations were not well-founded. See Truesdell, 209 F.R.D. at 174. Based on the evidence and 7 on the face of the pleadings, it is clear that Plaintiffs, at best, ignored the substantial amount of 8 evidence in their possession. Accordingly, the Court concludes Mr. Thorn failed to perform his 9 duty under Rule 11 to “validate the truth and legal reasonableness of the papers filed” and to 10 conduct a reasonable and competent inquiry into all available information before signing and 11 filing the SAC. Connetics, 542 F. Supp. 2d at 1005; Rachel, 831 F.2d at 1508; Christian, 286 12 F.3d at 1127; Townsend, 914 F.2d at 1142. Sanctions are therefore warranted pursuant to Fed. R. 13 Civ. P. 11(c). 14 D. Appropriateness of Sanctions 15 Turning to possible sanctions, the Court notes the purpose of Rule 11 is to “deter 16 repetition of such conduct or comparable conduct by others similarly situated.” Fed. R. Civ. P. 17 11(b)(2)(A); see also Hutchinson v. Pfeil, 208 F.3d 1180, 1183 (10th Cir. 2000) (“[I]n keeping 18 with its ‘ultimate goal of deterrence, rather than compensation,’ Rule 11 ‘de-emphasizes 19 monetary sanctions and discourages direct payouts to the opposing party.’”) (quoting Ridder v. 20 City of Springfield, 109 F.3d 288, 294 (6th Cir. 1997)). 21 Here, sanctions are justified on the basis of Mr. Thorn’s persistent prosecution of claims 22 without any reasonable basis in the law. These sanctions are particularly appropriate where 23 defense counsel gave Mr. Thorn multiple opportunities to withdraw these claims, citing to 24 relevant evidence and legal authority each time to demonstrate Plaintiffs’ untenable position, but 25 Mr. Thorn instead persisted to assert and defend the claims without any reasonable basis in fact or 26 law for believing they had any merit. Thus, the Court finds imposing a monetary sanction is 27 necessary to deter Mr. Thorn from further refusing to withdraw or correct contentions after a 28 /// 1 | potential violation is called to his attention or insisting upon a position after it is no longer 2 || tenable, as such litigation tactics serve only to waste precious public resources. 3 While the Court could arguably impose a larger penalty or award fees to deter Plaintiffs’ 4 || actions in the future, the Court concludes that a sanction in the amount of $1,000.00 is sufficient 5 || at this time to promote the goal of deterrence. Fed. R. Civ. P. 11(c)(4); 1993 Comments to Fed. 6 | R. Civ. P. 11; Link, 370 U.S. at 633. Nonetheless, should Plaintiffs continue to assert allegations 7 | that are directly contradicted by facts alleged in their prior pleadings or facts which have been 8 || judicially noticed by the Court in prior Orders, the Court is inclined to grant any additional 9 | motion for sanctions, including attorneys’ fees.!° 10 As the SAC was dismissed and Defendants have been dismissed from this action, striking 11 || the specific identified allegations is not a valid sanction. 12 IV. CONCLUSION 13 For the foregoing reasons, Defendants’ Motion for Sanctions (ECF No. 148) is hereby 14 | GRANTED as follows: 15 The Court declines at this time to grant Defendants expenses and attomeys’ fees. Instead, 16 | Plaintiffs’ counsel, Douglas Thorn, is admonished and sanctioned pursuant to Federal Rule of 17 || Civil Procedure 11(c) in the amount of $1,000.00, payable to the Court. Mr. Thorn shall issue 18 || payment no later than 30 days from the electronic filing date of this Order. Mr. Thorn shall be 19 || personally liable for this entire amount and may not shift the cost of these sanctions to Plaintiffs, 20 | or otherwise avoid their payment. 21 ITIS SO ORDERED. NN /) 22 | DATED: June 1, 2021 \ | jf 23 — ZN ok Troy L. Nunley } United States District Judge 25 26 □□ 10 Plaintiffs are additionally reminded that any amendments are limited to the surviving 27 || claims and Defendants, and Plaintiffs may not assert new claims without first obtaining leave from the Court to do so by way of a properly-noticed motion to modify the scheduling 28 | order/motion to amend. (See ECF No. 159 at 17, 20.) YA