Free Joint Case Management Statement - District Court of California - California

Case 3:07-cv-05072-TEH

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CHARLES F. BOURDON, State Bar #84782 Law Offices of Charles F. Bourdon 179 - 11th Street, 2nd Floor San Francisco, CA 94103 415-864-5100 415-865-0376 (fax) BARON J. DREXEL, State Bar #132529 Law Offices of Baron J. Drexel 212 Ninth Street, Suite 401 Oakland, CA 94607 510-444-3184 (phone) 510-444-3181 (fax) Attorneys for Plaintiff MARK A. JONES, State Bar #96494 KRISTEN K. PRESTON, State Bar #125455 JONES & DYER A Professional Corporation 1800 J Street Sacramento, California 95811 Telephone: (916) 552-5959 Fax: (916) 442-5959 Attorneys for: Defendants County of Lake, County of Lake Sheriff's Department and Sheriff Rodney Mitchell TERENCE J. CASSIDY, State Bar #99180 JOHN R. WHITEFLEET, State Bar #213301 PORTER | SCOTT 350 University Avenue, Suite 200 Sacramento, California 95825 Telephone: (916) 929-1481 Fax: (916) 927-3706 Attorneys for: Defendant Deputy Paul DeShong UNITED STATES DISTRICT COURT

21 NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION 22 BRENT BECKWAY, 23 vs. 24 25 26 27 28
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Plaintiff , DEPUTY PAUL DESHONG, DOES 1 through 10, inclusive, SHERIFF RODNEY K. MITCHELL, COUNTY OF LAKE SHERIFF'S DEPARTMENT and COUNTY OF LAKE, Defendants. _________________________________________

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NO. C 07 5072 TEH JOINT CASE MANAGEMENT STATEMENT Date: Time: Location: Judge: March 3, 2008 1:30 p.m. Courtroom 12, 19th Floor Hon. Thelton E. Henderson

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1. Jurisdiction and Service: Plaintiff's Position: Defendants at the last status hearing claimed a bar by California government Code section 943.5 without referring to Younger. The court ordered that discovery with the exception of production go forward and reset the matter to learn the status of the criminal proceedings. Plaintiff's position is that section 943.5 is not an absolute prohibition and that it cannot prohibit a plaintiff from bringing a 1983 action against a peace officer when such action is brought in good faith and without knowledge of any criminal proceeding. In the instant case, it is the County which is playing games, using a criminal proceeding to thwart plaintiff from seeking his remedies as a result of an illegal arrest in which two deputies broke plaintiff's leg, causing him to suffer a comminuted tibia plateau fracture. Plaintiff's position is that after the County knew that plaintiff was pursuing his civil remedy, it then filed a criminal case to justify its illegal arrest which was incident to the illegal use of force. Emmert v. City of Sonoma (N.D. Cal.1993) 836 F.Supp. 715, quoting Harding v. Calceran, 889 F.2d 906, 909, found that California Government Code 943.5 was enacted to avoid civil litigants from using civil suits to gain plea bargaining chips or as a means of discovery, not when a civil suit is commenced in good faith and before the defendant knew he would be criminally charged. The underlying incident over a dispute over a cord of wood occurred on October 27, 2006. On April 23, 2007, plaintiff's counsel submitted a government claim. Plaintiff filed his civil complaint on October 2, 2007. Plaintiff was served with a criminal warrant on October 13, 2007. Thus, the instant case was commenced before the criminal action was initiated. The intention of the California legislature was to avoid frivolous suits against officers to aid in bargaining chips. Here, the State filed a criminal case because the civil lawsuit was commenced. The law was not intended to be used by the State in order to coerce a civil litigant from pursuing his remedy. A preliminary hearing in plaintiff's State criminal case is set for May 30, 2008. Plaintiff served Deputy Richard Ward with the complaint on February 12, 2008. Defendants' Position: Criminal charges are currently pending against the plaintiff arising out of the arrest that forms
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the basis of this civil action. Jurisdictional issues exist pertaining to this civil action, particularly with regard to the pendant claims, on the basis of the statutory prohibition of California Government Code section 945.3 and as to all claims based on the Younger doctrine (Younger v. Harris, 401 U.S. 37, 43 (1971)).1 This prohibition is absolute. Its purpose is well defined by the cases, both federal and state, considering the statute. "Section 945.3 was enacted to prevent criminal defendants from using civil damages complaints as plea bargaining devices in their criminal cases, and to prevent the use of civil actions to gain discovery into prosecutorial information while the criminal action is pending." (Emmert v. City of Sonoma, 836 F.Supp. 715 (ND Cal. 1993) quoting Harding v. Galceran, 889 F.2d 906, 909 (9th Cir. 1989, cert denied, Galceran v. Harding 498 U.S. 1082, 111 S.Ct. 951 (1991); see also McAlpine v. Superior Court, 209 Cal.App.3d 1, 7, 257 Cal.Rptr. 32 (1989).) The Northern District decision in Emmert expressly holds that, in view of the purpose of section 945.3, "its provisions apply to all claims - including section 1983 claims - whether they are otherwise subject to the Tort Claims Act or not." (Emmert at page 716, emphasis supplied.) Decisions from the Eastern District of California have similarly applied the prohibition and tolling provisions of section 945.3 to 1983 as well as pendent state claims. (Johnson v. City of Chico, 725 F.Supp. 1097 (1989): "The state provision applies to state law claims governed by the California Government Tort Claims Act, while the tolling provision applies to any claims for damages against law enforcement officers whether arising under either state or federal law, or both, to the extent that such claims arise out of the same transaction." (at page 1103); Harned v. Landahl, 88 F.Supp.1118, 1121-22 (ED Cal.2000).) Plaintiff contends that Deputy Richard ward has been served with the complaint. No proof of service has been filed with the court or provided to defendants and defendants are unaware of whether service has been accomplished.
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California Government Code section 945.3 provides in pertinent part: "No person charged by indictment, information, complaint, or other accusatory pleading charging a criminal offense may bring a civil action for money or damages against a peace officer or the public entity employing a peace officer based upon conduct of the police officer relating to the offense for which the accused is charged, including an act or omission in investigating or reporting the offense or arresting or detaining the accused, while the charges against the accused are pending before a superior court."
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. Facts:. Plaintiff's Statement: On 10/27/06 at approximately 7:00 p.m., Deputy Paul Deshong went to the residence of one Mr. Keats on a report of an assault. At the time, Mr. Keats lived at 10477 Redwood Road, Loch Lomond. Mr. Keats described an argument he had with Mr. Beckway at the Loch Lomond Market. Deputy Deshong claims that while at Keats' residence he overheard a male leaving a message. The caller was on Keats' telephone yelling various threats to Keats and his friends. Deputy Deshong also claims that he was told by Keats that Beckway made it known to the neighborhood that he owned guns. Deputy Deshong reports that he left Keats' residence and went to the Loch Lomond Market and contacted two witnesses: one said she saw plaintiff strike Keats, the other witness did not see the strike. Deputy Deshong requested Deputy Richard Ward to respond as a cover unit "given Beckway's obvious intoxication level and state of mind when he left the message on Keats' answering machine." Deshong reports that an hour later he contacted Beckway through Beckway's screen door and smelled a strong odor of alcohol. He says Beckway walked onto the deck. Deshong states that Beckway denied striking Keats and that he told Beckway that Beckway "was under arrest." Beckway maintains that he was never told he was under arrest, that he spoke calmly and in a relaxed fashion. Deshong reports that he then "attempted to take control of Beckway's right arm to place

him into custody," that Beckway spun around to gain physical advantage, and freed himself from Deshong's "grasp" whereupon he lost his balance and fell to the deck. Deshong claims that Beckway fell forward and had his arms and hands under his torso. Deshong then reports that he and Deputy Ward took control of Beckway's arms and gained control of his hands by placing Beckway in handcuffs. Beckway maintains that the officers threw him down, face down, and that one of the deputies grabbed onto his arms while he was down and the other proceeded to spread his legs and drop his knees on top of the back of Beckway's legs. Deshong reports that they assisted Beckway to his feet, whereupon Beckway complained of
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pain to his left leg. Deshong says he contacted medical personnel who responded to the request. An ambulance took Beckway to the hospital. While there, Deshong reports that he gave Beckway a "LCSO Form #38 [Detention only form] to Beckway as his treatment was going to be prolonged." Deshong says Beckway read the form, understood it, but felt obligated not to sign it as he did not have glasses to read the form. Beckway maintains he was handcuffed in the hospital room, kept under watch for two to three hours and during this time Deshong came into the room and apologized as he gave him the "Detention only" form. Beckway sustained a medial plateau fracture. No arrest was made until months after Beckway filed a government claim, which was months after the attack and detention. Defendants' Statement: On October 27, 2006, the Lake County Sheriff's Department was summoned by an individual complaining of an altercation initiated by Brent Beckway. This individual complained that Beckway struck him in the face causing injury to him. Witnesses to the altercation identified Beckway as the aggressor. The complainant also played a telephone message recording from Beckway wherein Beckway was exhibiting signs of intoxication and using threatening language against the complainant. On the basis of the complaint, witness statements and recording, officers of the Lake County Sheriff's Department went to the home of Beckway and encountered Beckway there who was then exhibiting signs of extreme intoxication, including combative behavior. Beckway was informed that he was being placed under arrest at which time Beckway resisted, pulling and spinning away from the officers. Beckway fell to the ground. The officers were able to gain control of Beckway and placed him under arrest. An audio recording of the officers' interaction with Beckway and the arrest was made. At that time, Beckway complained of pain to his left leg and medical personnel were summoned to attend to him. Beckway was transported to a local hospital for treatment. 3. Legal Issues: Plaintiff's complaint alleges several causes of action. The first cause of action for "42 U.S.C. 1983," alleges unreasonable and excessive use of force, deliberate indifference "to [plaintiff's]
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constitutional rights," and Monell claims. The second, third, fourth fifth and sixth causes of action pertain to state claims for battery, false arrest and "illegal imprisonment," negligence, intentional infliction of emotional distress and negligent infliction of emotional distress. Defendants generally and specifically deny plaintiff's allegations. Defendants contend that probable cause existed and the arrest of plaintiff for a violation of the California Penal Code was lawful. Defendants contend that the force employed to effect plaintiff's arrest was objectively reasonable. Defendants contend that the detention of plaintiff was lawful and that, during the period of his detention, defendants were not deliberately indifferent to any serious medical need of plaintiff's. 4. Motions: No motions are currently pending. Defendants anticipate filing an Fed.R.Civ.Pro. 12(c) motion for judgment on the pleadings on the basis of California Government Code section 945.3 and/or alternatively a motion to stay this action on the basis of the Younger Abstention Doctrine. Defendant's Further Position: On February 12, 2008 defendants sent correspondence to plaintiff with statutes and case law upon which defendants intend to file their motion, requesting a conference for counsel to meet and confer. Plaintiff's counsel did not respond to the letter. Defendants anticipate filing a dispositive motion. 5. Amendment of Pleadings: Plaintiff filed an amendment to his complaint on February 1, 2008 naming Deputy Richard Ward as a defendant in the action. 6. Evidence Preservation: Except as maintained in the ordinary course, the parties do not propose any particular measures are required to preserve evidence relevant to issues reasonably evident in this action. 7. Disclosures: Plaintiff's Position: The governmental defendants and plaintiff initially agreed to make a full and timely initial disclosure of witnesses and documents as required by Fed.R.Civ.P. 26 no later than January 23, 2008; however, the governmental entities declined to produce any documents. Defendant County of
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Lake and County of Lake Sheriff served an initial disclosure January 23, 2008. Plaintiff has made no disclosure because it was awaiting resolution of the document issues and based upon the Court's statement that all discovery save document discovery should go forward. Plaintiff will produce a list of witnesses and medical records he possesses if the court intends that such discovery is permitted. Defendants Position: All parties agreed to make a full and timely initial disclosure of witnesses and documents as required by Fed. R. Civ. P. 26 no later than January 23, 2008. Defendants County of Lake, County of Lake Sheriff Department, and Sheriff Rodney Mitchell served an initial disclosure January 23, 2008.2 Plaintiff has made no disclosures. 8. Discovery: Pursuant to this court's order at the January 28, 2008 status conference, the only discovery currently permitted is request for document production. Plaintiff has mailed its request for production to the County, but it has not been received as of this date. Plaintiff has filed a motion in the criminal action (Superior Court in and for the County of Lake, Case No. CR913348) seeking disclosure of personnel records of defendants Ward and DeShong. 9. Class Actions: Not applicable. 10. Related Cases: County of Lake, Case No. CR913348 - criminal complaint against plaintiff arising from his arrest, including charges for resisting arrest. 11. Relief: Plaintiff seeks compensatory and punitive damages. 12. Settlement and ADR: The parties stipulated to Early Neutral Evaluation. Notice of Appointment of Evaluator was

Defendants have not produced the identified documents pending plaintiff's agreement to defendants' proposed stipulation for protective order. A proposed stipulation was sent to all parties on January 11, 2008. A follow-up request was sent February 12, 2008. Plaintiff has not responded.
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given on February 7, 2008. 13. Consent to Magistrate Judge for All Purposes: The parties will consent to have a magistrate judge conduct all discovery matters. 14. Other References: The parties do not suggest that this case is suitable for any other reference. 15. Narrowing of Issues: The parties have not presently identified any issues that can be narrowed by agreement. 16. Expedited Schedule: Plaintiff believes this case should be tried within six to eight months. Plaintiff's injuries have prevented him from work and doing things for himself which has created a financial hardship. 17. Scheduling: Plaintiff proposes the following cutoff dates: Expert witness disclosure and reports by August 25, 2008. Non-expert discovery completed by September 15, 2008. Expert discovery completed by October 1, 2008. All motions, except for motions for continuances, temporary restraining orders or other emergency applications, be filed by October 1, 2008. Pre-trial conference October 15, 2008 Trial: November 1, 2008. In view of the pending criminal action, Defendants propose the following cutoff dates: Expert witness disclosure and reports by November 25, 2009 Non-expert discovery completed by September 15, 2009 Disclosure of experts and reports for experts intended solely for rebuttal on or before December 9, 2009 Expert discovery completed by December 23, 2009 All motions, except for motions for continuances, temporary restraining orders or other emergency applications, be filed by October 30, 2009 Pre-trial conference January 18, 2010
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Trial: February 15, 2010 Mark Jones, defendants' trial counsel, has advised that he has a vacation scheduled in October 2008. Plaintiff is willing to accommodate Mr. Jones' vacation but is concerned about delaying the matter. 18: Trial: The parties request that this case be tried to a jury. Plaintiff anticipates the length of trial to be nine to twelve days. Defendants anticipate the length of trial to be five to six days. 19. Disclosure of Non-Party Entities or Persons: Each party has filed certificates. 20. Other Matters: The parties submit that the information set forth above encompasses all of the matters which may be conducive to the just, efficient and economical determination of the action. February 25, 2008 LAW OFFICES OF CHARLES F. BOURDON LAW OFFICES OF BARON J. DREXEL

By:

/s/ Baron J. Drexel Baron J. Drexel Attorney for Plaintiff JONES & DYER

February 25, 2008 By:

20 21 22 23 Date: 24 25 By: 26 27 28 February 25, 2008

/s/ Mark A. Jones Mark A. Jones Kristen Preston Attorneys for Defendants County of Lake, County of Lake Sheriff's Department, and Sheriff Rodney Mitchell

PORTER | SCOTT

/s/ John R. Whitefleet Terence J. Cassidy John R. Whitefleet Attorneys for Defendant Paul Deshong

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