Fanaro v. County of Contra Costa

Background

Jearhamel Jordan Fanaro alleges that, while he was held at the Martinez Detention Facility, other inmates assaulted him and facility and Contra Costa County officials violated his constitutional rights by failing to prevent or effectively permitting the assault. Fanaro alleges that Francisco Vargas and Thomas Leon participated in the assault. Vargas and Leon represent themselves.

The opinion addressed two motions filed by Fanaro concerning attempted depositions. Fanaro sought sanctions against Leon and the California Department of Corrections and Rehabilitation (CDCR), and sought to hold Vargas in contempt or require him to explain why he should not be sanctioned for failing to attend his deposition. The court decided the motions without oral argument and vacated the hearings.

Vargas’s missed deposition

Fanaro noticed Vargas’s deposition for October 27, 2020. A private investigator served a subpoena on an adult member of Vargas’s family at Vargas’s residence and provided a check for his costs. According to the investigator’s sworn declaration, Vargas said he would attend remotely, then stopped responding and did not appear for the deposition.

The court ordered Vargas to show cause—meaning to explain—by April 19, 2021 why he should not be held in contempt and/or sanctioned for failing to attend. The court stated that, if Vargas did not respond, it would impose monetary sanctions, including Fanaro’s attorney’s fees and costs for preparing for the deposition. The court also warned that Vargas could face an evidentiary sanction at trial, including being prohibited from presenting evidence in his defense. The court did not impose those sanctions in this order.

Leon’s deposition and Fifth Amendment privilege

Leon was confined at Pelican Bay State Prison, a CDCR facility. The court had authorized a virtual seven-hour deposition and ordered Leon to participate as required by law. During the December 9, 2020 deposition, Leon invoked the Fifth Amendment privilege against self-incrimination in response to every question asked by Fanaro’s counsel. After about 45 minutes, he was removed from the deposition; the circumstances of his removal were disputed.

The court declined to impose monetary sanctions on Leon because he appeared for the deposition, making a sanction based on failure to appear inappropriate. The court also recognized that Leon was unrepresented and may not have understood that the privilege must be asserted separately for each question. In a civil case, however, the court explained that a person may invoke the privilege only when he reasonably believes an answer could be used in a criminal prosecution or lead to evidence that could be used that way.

To address the incomplete deposition, the court allowed Fanaro to give Leon a written list of the questions that Fanaro would have asked. Leon was ordered to state whether he invokes the privilege in response to each question. If he does not invoke it for every question, he must attend a new deposition and answer the questions that do not call for privileged responses. If he invokes the privilege for all questions, he may not testify in his defense at trial, and Fanaro may propose appropriate adverse inferences—conclusions based on his silence—for consideration on summary judgment and at trial. If Leon does not respond, the court will treat that failure as an invocation of the privilege for every question and may apply the same consequences.

The court rejected Fanaro’s argument that Leon automatically waived the privilege by failing to respond to the earlier motion for permission to take the deposition. It also stated that Leon’s invocation of the privilege did not violate the court’s earlier order.

CDCR

The court declined to sanction CDCR. Fanaro argued that correctional officer Joshua Rush interfered with the deposition. The court found that the conduct did not warrant sanctions on these facts. The deposition lasted about 45 minutes, Leon refused to answer the questions, and he made clear that he would not answer them later. The court concluded that Leon, rather than CDCR, made the decision that improperly ended the deposition. Because Fanaro was given another way to put the questions to Leon, the court also found that Fanaro’s attorney’s fees and costs were not wasted.

Disposition

The court ordered Vargas to show cause by April 19, 2021. Fanaro was ordered to serve Leon with the written questions and the order by April 19, 2021, and Leon was ordered to respond by May 14, 2021. The court did not award monetary sanctions against Leon or CDCR, and stated that the motions were otherwise denied.