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6 UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

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8 ANTONIO FERNANDEZ, Case No.: 2:19-cv-06034-SB-AS 9 Plaintiff, 10

ORDER TO SHOW CAUSE RE:

11 vs.

SANCTIONS

12 STERIK BOYLE HEIGHTS, L.P., a 13 Delaware Limited Partnership; STERIK BOYLE HEIGHTS LLC, a Delaware 14 Limited Liability Company; and 15 RALPHS GROCERY COMPANY, an Ohio Corporation, 16 Defendants 17

18 19 In reviewing the motions for summary judgment, the Court was made aware 20 that Plaintiff submitted a declaration that raises serious concerns. 21 The previously assigned judge in this case issued an order establishing a 22 joint briefing procedure for summary judgment motions. Pursuant to that 23 procedure, Plaintiff delivered his portion of the joint brief to defense counsel, 24 including his declaration. Dkt. No. 41-4, Ex. 7 (Original Declaration). Plaintiff’s 25 Original Declaration contained statements materially different from those Plaintiff 26 provided at his deposition. Dkt. No. 41-4, Ex. 6 (Deposition). 27 1 In his Original Declaration, Plaintiff stated under oath that he was unable to 2 enter the bathroom stall at the Food 4 Less store because of the alleged ADA 3 violations: 4 When I arrived at the Store, I needed to use the restroom. 5 However, when I got inside the restroom, I found that the 6 doorway of the restroom stall was too narrow for me to fit my 7 wheelchair through. As a result, I was unable to enter the 8 stall. This was difficult and frustrating for me since I needed 9 to go. 10 Original Decl. ⁋ 5. 11 In this declaration, Plaintiff appears to present a vivid memory of the 12 incident, one in which he had to use the restroom and was unable to do so because 13 his wheelchair would not fit through the stall doors, leading to understandable 14 frustration—if this were true. 15 But apparently this was not true. At his deposition, Plaintiff reported 16 another vivid memory seemingly at odds with his Original Declaration: 17 Q. Okay, so you’re able to – were you able to enter the stall? 18 A. It was difficult. Very difficult entering the stall with the 19 wheelchair. 20 Q. Okay. You were able to get in and then needed to get 21 near the toilet to empty your [stoma] bag? 22 A: Right . . . . 23 Q. Okay. And at that point you get as close as you can to 24 the toilet and are able to empty your [stoma] bag; 25 correct? 26 A. Yeah. 27 1 in and out of the stall and conveying his emotions throughout the incident). 2 In his Original Declaration, Plaintiff had another very specific memory. 3 “Since [he] had touched the stall door when attempting to get in, [he] went to go 4 wash [his] hands before leaving the restroom.” Original Decl. ⁋ 6. After 5 describing the specific cause for washing his hands (i.e., touching the stall door 6 when he unsuccessfully attempted to get in), Plaintiff described another vivid 7 memory: 8 At the time, I did not notice that the plumbing underneath the 9 sink of the restroom was not wrapped to protect against 10 burning contact. When I got home, I felt a tingling sensation 11 on my leg and saw that I had a small red burn mark from 12 where my leg must have touched the exposed pipes under the 13 sink when I wheeled my wheelchair close to the sink to wash 14 my hands. Although the injury was minor, it was still very 15 discomforting to have this happen to me because the Store 16 failed to do something as simple as wrapping the plumbing. 17 Original Decl. ⁋ 6. 18 At his deposition, Plaintiff explained how upset and frustrated he was with 19 this bathroom incident, noting the was burned while wearing shorts: 20 21 So I had problems coming out of the stall after squeezing 22 myself in there. I was able to do it with a lot of difficulty. 23 And then trying to get out of that stall in reverse was a pain. 24 Definitely. And, you know, I’m still quite upset about it 25 because just going into that bathroom after finally getting out 26 of that stall I went go to wash my hands and I use hot water 27 and going to the sink and, you know, I’m wearing shorts. 1 Depo. 41:9-17 (emphasis added). 2 However, Plaintiff’s Original Declaration attaches “true and correct copies 3 of the photographs” that he took on the day of his visit to the store. Original Decl. 4 ⁋ 9; Dkt. No. 41-4, Ex. 8 (photographs). The photographs depict Plaintiff wearing 5 blue jeans pants. Plaintiff still maintains that his lower leg was burned where it 6 touched the pipes under the sink. Original Decl. ⁋ 6; Dkt. No. 41-5, Ex. 2 7 (Revised Declaration) ⁋ 6. 8 After Defendants noted the contradictions in Plaintiff’s testimony in their 9 portion of the joint brief, Dkt. No. 41-1 at 2-3, Plaintiff submitted a Revised 10 Declaration. The changes are noted in bold below: 11 Original Decl. ⁋ 5: I found that the doorway of the 12 restroom stall was too narrow for me to fit my wheelchair 13 through. As a result, I was unable to enter the stall. 14 Revised Decl. ⁋ 5: I found that the doorway of the restroom 15 stall was very narrow for me to fit my wheelchair through. 16 As a result I had difficulty entering the stall. 17 These minor changes raise more questions than they address. Indeed, Plaintiff 18 appears to avoid disclosing outright whether he entered the stall, stating only that 19 he had difficulty doing so. But he then goes on to repeat verbatim his statement in 20 the Original Declaration that suggests he could not enter the stall: “Since I had 21 touched the stall door when attempting to get in, I went to go wash my hands 22 before leaving the restroom.” Revised Decl. ⁋ 6 (emphasis added). 23 Read in its entirety, the Revised Declaration does not seem to change the 24 statement in the Original Declaration that “[Plaintiff] was unable to enter the 25 stall.” Instead, Plaintiff appears to have purposely injected ambiguity into the 26 Revised Declaration to avoid the contradiction in his deposition. It is difficult at 27 this point to draw any other conclusion when Plaintiff—after being confronted 1 with his contradiction—opted for obfuscation over clarification. A witness who 2 submits a declaration is sworn to provide truthful information. And counsel who 3 assists in the preparation of the declaration must take care to comply with his or 4 her duty of candor to the court. ING Bank, fsb v. Ahn, 2010 WL 4807078, at *1 5 (N.D. Cal. Nov. 19, 2010) (discussing the duty of candor). 6 Courts have inherent authority to impose sanctions for bad faith conduct. 7 Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980); In re Yagman, 803 8 F.2d 1085 (9th Cir. 1986). These inherent powers may be used to sanction “a 9 party or its counsel for the filing of false or seriously misleading affidavits . . . to 10 maintain the authority and dignity of the Court.” Mercury Serv., Inc. v. Allied 11 Bank of Texas, 117 F.R.D. 147, 158 (C.D. Cal. 1987), aff’d, 907 F.2d 154 (9th 12 Cir. 1990). Plaintiff’s Revised Declaration appears to be misleading, if not worse. 13 When considered in light of Plaintiff’s deposition and Original Declaration, there 14 are serious questions of candor about the asserted facts—including whether 15 Plaintiff entered the bathroom stall and whether he was burned while wearing 16 shorts. 17 There are also serious questions surrounding the preparation of the Original 18 and Revised Declarations and the decisions about their contents. Under Judge 19 Olguin’s order, Plaintiff was precluded from revising the joint brief after 20 submitting his portion. Dkt. No. 20 at 5.1 Yet Plaintiff’s counsel made material 21 changes to the brief and Plaintiff’s declaration. See Dkt. No. 41-1 at 3-4 22 (acknowledging that counsel “discuss[ed] with [Plaintiff] the issues that defense 23 counsel identified in [Plaintiff’s] deposition transcript, [and] that [Plaintiff] 24

25 1 Judge Olguin’s order also provides that “[i]f it appears that one (or more) of the 26 parties is primarily responsible for the failure to properly file an adequate joint 27 brief, the primarily responsible party or parties shall be subject to appropriate sanctions.” Id. at 6. 1 ||determined that the [Original Declaration] was inaccurate and required 2 ||correction”). After learning of the contradictions, Plaintiff’s counsel did not seek 3 ||leave to make the revisions. And the revisions, once made, appear to have been 4 ||done for purposeful evasion rather than candid correction. See discussion supra. 5 Pursuant to the Court’s inherent powers and Judge Olguin’s order (see note 6 supra), IT IS HEREBY ORDERED that Plaintiff and his counsel are to show 7 ||cause, at a hearing on February 26, 2021 at 8:30 a.m., why the Court should not 8 |{impose sanctions for Plaintiff’s false and/or misleading declarations and a 9 || violation of a court order. Plaintiff is further ORDERED to file by no later than 10 February 19, 2021 a declaration addressing these issues. 11 12 13 |} DATED: February 3, 2021 EO g > United States District Judge

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