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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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--o0o--

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REHAN SHEIKH,

) Case No. 2:14-cv-00751-GEB-AC

 

)

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Plaintiff,

) Sacramento, California

 

)

Wednesday, August 13, 2014 9:54 A.M.

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vs.

)

 

)

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BRIAN KELLY, et al.,

) Hearing re: defendants motion

 

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to dismiss; plaintiff's

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Defendants.

) motion for admissions and for

 

)

judgment; and to amend complaint

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TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE ALLISON CLAIRE

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UNITED STATES MAGISTRATE JUDGE

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APPEARANCES:

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For Plaintiff:

REHAN SHEIKH, Pro Se

 

1219

W. El Monte Street

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Stockton, CA (209) 475-1263

95207

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For Defendants:

MATTHEW T. BESMER

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Attorney General's Office

2550

Mariposa Mall, Room 5090

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Fresno, CA

93721

 

(559) 477-1680

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Court Recorder:

(UNMONITORED) U.S. District Court

501 "I" Street, Suite 4-200

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Sacramento, CA (916) 930-4072

95814

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Transcription Service:

Petrilla Reporting & Transcription

 

5002

- 61st Street

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Sacramento, CA (916) 455-3887

95820

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Proceedings recorded by electronic sound recording;

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transcript produced by transcription service.

   

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SACRAMENTO, CALIFORNIA, WEDNESDAY, AUGUST 13, 2014, 9:54 A.M.

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(Call to order of the Court.)

 

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THE CLERK: Calling 14-cv-00751-GEB-AC, Rehan Sheikh

 

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v. Brian Kelly, et al.

This matter is on calendar for

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defendants' motion to dismiss and plaintiff's motion for

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judgment, Your Honor.

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THE COURT: Good morning.

 

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MR. SHEIKH: Good morning, Your Honor.

 

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THE COURT: Take a seat please, and then state your

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appearances for the record.

 

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MR. SHEIKH:

Yes, Your Honor.

My name is Rehan

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Sheikh, I'm plaintiff in this case.

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THE COURT: Good morning, Mr. Sheikh.

 

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MR. BESMER: Good morning, Your Honor. Matt Besmer

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for the attorney general representing the defendants.

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THE COURT: Good morning, Mr. Besmer.

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So we have the defendants' motion to dismiss on

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calendar. Also before me is the plaintiff's motion to compel

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admissions, the plaintiff's motion for judgment, and Mr.

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Sheikh, you've filed a first amended complaint that I want to

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talk to you about.

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MR. SHEIKH: Yes.

 

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THE COURT:

I want to focus this morning on

 

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defendants' motion to dismiss. That's what I'll hear argument

   

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on.

But first I want to talk to you, Mr. Sheikh, about the

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things that you have filed, just to give you some information

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and clarify some procedural matters for your benefit.

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MR. SHEIKH: Okay.

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THE COURT: And I will be issuing a written order

 

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after the hearing which will spell all this out for you.

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After a plaintiff files an initial complaint and the

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defendants respond to it, either by filing an answer or a

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motion to dismiss, that puts you in a position where you are

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not free to simply file an amended complaint without a motion

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seeking leave to do so and providing legal grounds. And for

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that reason I want to just advise you that I will be ordering

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the first amended complaint stricken because you have not made

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a motion to file it.

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But the thing to bear in mind for now is that when a

 

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motion to dismiss is on the table, if it's granted in whole or

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in part, it is always my practice to permit the plaintiff at

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least one opportunity to amend the complaint after the ruling

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on the motion to dismiss.

So after I have laid out for you in

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any order or any findings and recommendations to the district

 

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court any deficiencies that I find in the complaint, you will

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have the benefit of that being laid out for you --

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MR. SHEIKH: Thank you.

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THE COURT: -- prior to having an opportunity to

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amend.

   

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On the discovery issue, it -- from what I've read in

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your papers, you told me that you did submit requests for

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admissions to the defendants and at the time you filed your

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motion to compel you had not yet gotten a response, is that

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correct? Let me break that down.

 

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MR. SHEIKH: I don't understand correctly, but I

 

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filed a request for admission more than 30 days ago and my

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understanding is that after 30 days it will be -- it can be

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admitted.

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THE COURT: When you want to conduct discovery,

 

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whether it's requests for admission, request for production of

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documents or interrogatories, which are questions --

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MR. SHEIKH: Right.

 

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THE COURT: -- that you propound in writing you want

 

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answers to, you're not supposed to file them with the Court at

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all.

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MR. SHEIKH: Right.

 

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THE COURT:

They don't get filed.

They need to be

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served directly on the other side. And then when you get a

 

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response from the defendants, if you're not happy with the

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response -- for example, if their response is, we don't have to

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answer that question, or they do answer the question but they

 

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don't give you all the information you wanted, then the next

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thing you do is talk to them and try to work it out.

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MR. SHEIKH: Yes.

 
   

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THE COURT:

And if you can't work it out, then you

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file a motion to compel further responses. All right.

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MR. SHEIKH: That makes sense. Thank you.

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THE COURT: Mr. Besmer, did -- were you served with

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requests for admissions?

 

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MR. BESMER: Just through the ECF service, Your

 

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Honor, and we did submit a letter to Mr. Sheikh --

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THE COURT: Okay.

 

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MR. BESMER: -- addressing his, what we believe to be

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an untimely request for admission -- or a premature request for

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admission rather.

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THE COURT:

Okay. All right.

So the requests for

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admission were propounded, although in an atypical sort of way,

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and you did respond to them?

 

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MR. BESMER: Just in the letter format, Your Honor.

 

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We explained to Mr. Sheikh that discovery has not yet opened in

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this case.

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THE COURT: All right. Which is true, there's been

 

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no discovery and scheduling order. In a case such as this, Mr.

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Sheikh, once -- the usual way the thing proceeds is that after

 

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the motion to dismiss has been ruled on, once we get a

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complaint on file that provides a basis for continuing

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litigation, then an order will issue setting deadlines

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including for discovery and it is -- in the usual course of

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events, you would wait for that to happen before conducting the

   

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discovery.

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But when you get there, again, the process is not to

 

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file it with the Court, but to simply submit your discovery

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requests directly to counsel for the defendants and only

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involve the Court if you're not happy with the responses.

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Okay?

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MR. SHEIKH:

Sure. That makes sense to me. And in that regard, as well as for

 

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THE COURT:

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general guidance in litigating your case, I know it's very,

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very challenging to be a plaintiff trying to prosecute a

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lawsuit without the assistance of counsel. The primary things

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you need to always look to are the Federal Rules of Civil

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Procedure, the local rules of this Court and the law library at

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this Court or the larger county law library can give you access

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to civil procedure practice guides.

 

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MR. SHEIKH: Yes, ma'am.

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THE COURT: There are several, if you haven't seen

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them already, handy three-ring sets of binders that will give

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you pretty concrete instructions on what you need to do,

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particularly when it comes to pleading and discovery. So I

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suggest that you consult those resources.

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Finally, Mr. Sheikh, you filed a motion for judgment

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which also appears to me to be premature. As the plaintiff in

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a civil lawsuit you, with very, very rare exceptions, can't get

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judgment just based on the pleadings in your case. The burden

 
   

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is on you ultimately to prove all your claims with evidence.

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And there is a provision in Rule 56 of the rules of

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civil procedure to move for summary judgment at a later stage

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in the litigation, after all the discovery has been conducted.

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If at the end of the discovery period you look at --

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MR. SHEIKH:

THE COURT:

MR. SHEIKH:

If I may? Go ahead, sir. Yeah, I think I maybe did not name it

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correctly in my memorandum supporting the motion. I correctly

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characterized it as motion for declaratory and injunctive

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relief and that is simply based on the fact and the motion --

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it's just procedural issues, they don't require discovery.

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It's just the procedure that I have a driving license

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and it's a basic necessity of life. And defendants have sent

 

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me an anonymous letter and they are not giving me basic

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provision and posted provision heading.

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So in my opinion, and Court will decide that, that it

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made sense that I could submit a motion for declarative relief

 

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that the defendants did not follow the procedures, that I'm

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entitled to defend my driving license and to renew my driving

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license.

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So in that perspective, I mean, I'm just conveying

 

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what I thought.

So if I incorrectly titled it as a motion for

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judgment, I tried to make up that remedial situation in my

 

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memorandum. If you see, it is clearly labeled as motion for

   

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declaratory and injunctive relief.

 

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THE COURT:

All right.

Your -- I'm aware that your

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complaint seeks declaratory and injunctive relief. Declaratory

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and injunctive relief, just like money damages, are types of

 

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relief that you are entitled to at the end of a lawsuit if you

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prevail, after you have proved your claims with evidence.

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So --

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MR. SHEIKH:

So in this case, defendants do not

 

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dispute, sorry -- and defendants do not dispute that they did

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not issue me timely notices of denial, they do not dispute that

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over a period of last two years they denied me pre-deprivation

 

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and post-deprivation --

 

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THE COURT: Well there are disputes about -- this

 

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early in the litigation, when we're not even clear on the final

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form that your complaint will take, it is too soon for anyone

 

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to tell me that things are undisputed. There, it seems to me

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is, I'm seeing in this case plenty of room for dispute, both

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about historical facts of what happened and about the legal

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significance of what happened.

 

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So again, if what you are seeking is judgment in your

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favor without a trial, the way you get that is under Rule 56

 

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with a motion for summary judgment.

 

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Based on what you're telling me, you might also be

 

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seeking -- there is a provision, again under the rules for

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preliminary injunctive relief. That's a very high bar. In

   

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order to bring a successful motion for a preliminary injunction

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-- and what you submitted does not meet the requirements for a

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motion for a preliminary injunction -- but you have to prove up

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front that you are likely to prevail on the merits.

There -- I

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will leave it to you to research what the requirements are for

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such a motion, but such a motion is not before me right now.

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And again, I leave it to you to decide what the

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appropriate motions are to bring and how to bring them. I

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can't give you advice about that.

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MR. SHEIKH: Yes, Your Honor.

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THE COURT: But you should look those things up.

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All right. Is there anything else, Mr. Sheikh, that

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you want to tell me about your -- the first amended complaint

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you filed, your motion to compel admissions or your motion for

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judgment? Anything you think I've misunderstood or that you

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want to clarify?

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MR. SHEIKH: Well I think, Your Honor, you correctly

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stated that. If I may add to that, it's an uncommon situation,

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or simple situation of how do we see that. A driving license

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is a basic necessity of life and we all need driving license.

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We need to go to drive to work or we need to seek medical

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treatment or whatever may be. So it's a very basic necessity.

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And I have a driving license. I've been driving cars

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since the young age, like everyone else.

So I mean it's a very

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high bar for defendants. They just cannot -- I mean it doesn't

   

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seem right for them to come and take your driving license

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without the due process of law.

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And they seems like mistaken, or they have a software

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glitch in their computer that is just sending anonymous random

 

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-- that's not up to me to tell, but it clearly seems like a

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very obvious mistake and they are stating, well, there is a

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failure to appear.

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And in my declaration I pointed out probably more

 

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than half dozen events that I have appeared before DMV and

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before the county court. Issue is they won't specify what --

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there is a failure to appear.

I mean if there is a deficiency

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in my side, I would be glad to make up for that.

I mean if

 

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there's a fine that I need to pay, if there is something

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specific that -- but their allegations remain general and even

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though I appeared before them, they do not remove that failure

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to appear or they don't give you proof of appearance.

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I mean the county court a number of times I have

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appeared and they won't give you a proof of attendance, even

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though I have requested specifically. And now two days ago

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defendant bring another additional accusation that for a

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particular traffic citation dated 2012, more than two years

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ago, they claim that I missed a court date and they come with a

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bench warrant that they claim that was issued in April 2012.

 

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And I have very well -- verifiable record that I

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appeared before that court in February, in March and in May.

   

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So I mean it's kind of a uncommon situation that defendant --

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they are trying to bring court records that may have existed or

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not, but they don't make sense, that for a traffic citation --

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there's a one specific traffic citation and I went before the

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court twice and the court signed and stamped my appearance.

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They withdraw their accusation for verification the court

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signed and stamped. And that -- the court's proof is submitted

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along with my declaration.

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THE COURT: Okay. You're referring to the

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declaration that you submitted yesterday?

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MR. SHEIKH: Right. Yes, Your Honor.

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THE COURT:

Well let me ask you a question about

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that, Mr. Sheikh, because I'm confused. Your declaration tells

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me that the exhibit documents a withdraw of the traffic

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citation, but this document isn't a court document or a

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withdrawal of the traffic citation. This is a piece of paper

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you were given by the sheriff's department --

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MR. SHEIKH: Yes, Your Honor.

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THE COURT: -- when they released you from custody

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and told you to go to court on 3/6.

This doesn't document

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anything that happened in court on 3/6. This is just a piece

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of paper that you got at the jail saying this is when you need

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to go to court.

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MR. SHEIKH:

Yes, Your Honor.

I was told that I need

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to go to court by 3/6, that's why I was explaining, even though

   

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the document says I need to appear precisely on 3/6.

So I had

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my first appearance before the judge on February 29th, but that

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discussed another traffic citation.

 

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And this one was specifically for this thing and I

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decided not to bring declaration this piece of stamp, this is

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signed by the court.

This is -- in the middle there is a big

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stamp and a signature. The signature and stamp is by the

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court.

So I got --

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THE COURT:

I see the court stamp and I see a date on

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it --

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MR. SHEIKH: Right.

 

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THE COURT:

--

which might -- which proves to me

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that you appeared on that date, but it doesn't indicate

 

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anything about any action that the court took.

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MR. SHEIKH: That's possibly -- I was there and they

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did not bring any accusation and I verified with everyone, and

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they are telling people about your accusations are withdrawn.

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So I don't have a proof what the action the court did.

 

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THE COURT: Okay.

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MR. SHEIKH: But it definitely shows that I was

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responsible enough to go to the court, I did all my due

 

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diligence and the court, they overlooked to do whatever. And

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for the same traffic citation, the court signed it -- my

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appearance of -- at least appearance -- for the same appearance

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in April. They are claiming that they have a bench warrant

   

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against me.

You know. I mean that doesn't make sense, you

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know.

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THE COURT:

Okay.

Let me -- I appreciate your

 

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explanation. I understand how important it is to you to have

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your driver's license back. I understand how important it is

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for people to have driver's licenses.

 

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MR. SHEIKH: Yes.

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THE COURT:

Let me turn to the defendants.

In your

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motion -- the part of your argument that -- particularly your

 

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mootness argument is based on the May 6th letter and that

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letter does appear to provide information about why Mr.

 

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Sheikh's license was suspended and how to clear the suspension,

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but it doesn't address what I would agree is an independent

 

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issue, which is the process for challenging the suspension

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rather than taking care of the department's basis for it.

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If Mr. Sheikh was to want to challenge the suspension

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itself, saying you were, you know, wrong to do it, you can't

 

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make me go clear up these things because I should never have

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been suspended. Where, and when, and how did the department

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notify him how to do that?

 

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MR. BESMER: Yes, Your Honor. First, the department

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sent Mr. Sheikh the very first letter, and I don't have the

 

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date right in front of me, but it was somewhere around November

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2011.

And it informed him -- I think it was December 2011.

It

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informed him that his license was going to be suspended in 30

 

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days if he didn't clear up his failure to appear on his August

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2011 citation.

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The process that's established is that there really

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is a hearing and that hearing is to go to the court that's

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handling that traffic citation and the court, based on how the

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statutory framework is set up, will automatically notify the

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DMV when the failure to appear is cleared.

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And that did in fact happen because Mr. Sheikh

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eventually appeared on that traffic citation and that

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suspension was removed when he showed up in court. On that

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traffic citation then he was found guilty of a traffic

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violation and ordered to pay a fine. And similar system is set

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up is that when a --

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And so to your question about what's the process to

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challenge that.

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THE COURT: Uh-huh.

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MR. BESMER: That process is -- I mean we're inviting

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him right now to challenge that process, to let us know that

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he's paid that fine and that he's appeared in court on his

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February 2012 citation.

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I understand he's not challenged his failure to pay a

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fine in oral argument, and as to the failure to appear, I

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understand he's challenging that right now. All I can do is

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represent to the Court that the county court records -- the San

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Joaquin County Court records show that Mr. Sheikh failed to

   

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appear on his February 2012 citation. And all he needs to do

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is go to court and clear that up.

 

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The DMV system is just simply set up based on the

 

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statutory framework to get these notifications from the court,

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and I'm not aware of any errors in that system.

So he does

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have a hearing right to the extent that he goes to court and

 

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says hey, you know, there's an error here, I need to get this

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fixed.

And based on the cases that we cited in our reply, it's

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clear that due process does not always require a formal

 

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adjudicatory hearing. It's just some type of process to allow

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the person to protect his or her interest.

 

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And at this stage, Your Honor, we believe we're

 

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inviting Mr. Sheikh to do the three things we've asked him to

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do.

And there's really not a system set up for him to say hey,

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I, you know -- well let me back up.

show us that he paid his traffic fine.

We are inviting him to Until he shows that he

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paid his traffic fine, the DMV is prohibited from lifting the

 

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suspension of his license.

 

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THE COURT:

Right. And Mr. Sheikh, what proof do you

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have that you ever paid that fine?

 

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MR. SHEIKH: Well, Your Honor, there was a trial

 

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connected and I dispute that part, the guilty part. There was

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a trial connected. There was a discussion with that judge and

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I had challenged the jurisdiction of the cop. The cop worked

 

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for the private university in Stockton that is next to my home.

   

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The cop was parked at a position where no human -- I

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mean it seems like I'm just saying it -- it was like clearly

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impossible for him to have a visual of that street, which was

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on his back.

So that was questioned in the trial and the cop

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could not satisfactorily answer his location and he made

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statements that I don't have a good recollection of events at

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that time.

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And the matter was before a judge and the judge

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promised that he will issue his opinion. There were a number

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of matters that was discussed and I don't want to go in all the

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details. So what I'm expecting is opinion of the judge that

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would establish the jurisdiction of the cop and see how the cop

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-- did the cop have actually -- he was parked at a position

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where it could have any visual where he could identify whether

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a plaintiff completely stopped on a stop sign or not.

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THE COURT:

So you had a trial?

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MR. SHEIKH: Yes, Your Honor.

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THE COURT:

But there was no result? The judge

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didn't rule at the end of the trial?

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MR. SHEIKH: Well judge said that he will issue his

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opinion because the jurisdiction was challenged and the cop did

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not have a visual --

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THE COURT:

Okay. Let me just interrupt to say that

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I'm a little confused about what your issue was, because the

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ability of a witness to perceive things --

   

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MR. SHEIKH: Yes, Your Honor.

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THE COURT:

-- is an issue that I understand is a

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trial issue.

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MR. SHEIKH: Yes, Your Honor.

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THE COURT: I don't understand that to be an issue

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going to jurisdiction. But in any case, when was this trial?

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MR. SHEIKH:

Around May 25 of 2012.

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THE COURT: Of 2012?

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MR. SHEIKH: Yes, Your Honor.

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THE COURT: And there has never been a decision by

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the judge after that trial? You've been waiting since May of

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2012 to get a written opinion?

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MR. SHEIKH: That is my understanding, Your Honor.

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Exactly.

I have never seen -- I am waiting for opinion and I

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have not received an opinion. However --

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THE COURT:

And there is no record that you were

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found guilty of the citation?

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MR. SHEIKH:

Well they produced a form. They said --

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when I was leaving the court, the court stopped, asked me to

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sign a form and I did.

And now I -- defendants hand me those

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forms and those forms say that they found me guilty and there

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is no opinion.

 

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THE COURT: Okay. Well then that's what happened.

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If that's what the forms say, that's what happened. And you

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may have been expecting --

   

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MR. SHEIKH:

Well I -- I received from court in

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sections and the court discussed that if I do not disagree with

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the opinion I could challenge the court's opinion. So I mean

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that form doesn't say whether the court has -- the cop has

 

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jurisdiction and how the -- I mean all the details, Your Honor.

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THE COURT: All right. But you acknowledge that you

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did receive and sign a form saying that you'd been found guilty

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and ordering you to pay a fine?

 

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MR. SHEIKH:

I was instructed to do so and I had no

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choice, Your Honor.

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THE COURT:

Okay.

So you were instructed to pay a

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fine?

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MR. SHEIKH:

I was instructed to sign a form that I

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had no knowledge what I'm signing at that time.

 

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THE COURT: Did the form say that you were required

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to pay a fine?

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MR. SHEIKH: Yes, Your Honor.

 

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THE COURT:

Okay.

Did you ever pay that fine?

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MR. SHEIKH: No, Your Honor.

 

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THE COURT:

Okay.

You know, in this court as a

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magistrate judge I sometimes hear traffic matters which might

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seem surprising because it's a federal court, but if someone

 

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commits a traffic infraction on federal property, like if

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they're going hiking up in the El Dorado Forest and they park

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improperly in the parking lot on federal land, for example,

 
   

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sometimes that will come into this Court.

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And I am well aware that if I find that someone

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parked improperly or drove under the influence of alcohol or

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anything forbidden by the California Vehicle Code, even in this

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federal court, what happens if I find them guilty and I impose

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a fine is that gets automatically reported to the Department of

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Motor Vehicles and the DMV does what it does on the basis of

 

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that report from me.

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That seems to be what happened for you. The court

 

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ordered you to pay a fine and regardless of your understanding

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that there remained an outstanding legal issue and you didn't

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feel that you were therefore obligated to pay the fine, your

 

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opportunity to challenge that is in the state courts.

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MR. SHEIKH: I understand.

15

THE COURT: Did you appeal the decision of the

16

Superior Court?

17

MR. SHEIKH: I understand, Your Honor. I cannot

 

18

challenge that opinion over here.

19

THE COURT: Right.

20

MR. SHEIKH:

But I don't have any way to challenge

21

that opinion unless I have an opinion, so it's kind of a limbo,

22

you know.

23

THE COURT:

Well I can't advise you about how to

24

prosecute an appeal in state court, and the time to do so has

25

certainly expired a long time ago. But based on the facts as

   

19

1

you are representing them to me, it seems that you were aware

2

that even though you dispute the validity of it, that you were

3

under an obligation to pay a fine in that matter and you have

4

not paid the fine in that matter.

And the DMV is not going to

5

restore your driver's license until the county court tells them

6

that you've taken care of the fine.

7

Mr. Besmer, what else do I need to know about this

8

case in order to rule on your motion?

Are there facts you want

9

to clarify or things you'd like to direct me to in the record

10

that would help me understand the procedural history?

11

MR. BESMER:

Yes, Your Honor.

On July 14th, in

12

response to Mr. Sheikh's request for admission we sent a

13

detailed letter to him, and in that detailed letter we included

14

copies of the certified records from the traffic court which

15

showed that he was found guilty of his traffic violation from

16

August 2011, and that also included a copy from the court

17

records that showed on August 4th, 2012 a $20,000 bench warrant

18

was issued because he failed to appear on his February 2012

19

traffic citation.

20

The third reason why his license is suspended is

21

because he's not appeared and completed a reexamination. When

22

he was pulled over in February of 2012 based on his driving and

23

his behavior, the officer believed that there was some concerns

24

about his ability to safely operate a motor vehicle, and all

25

the statutory codes as referenced in our reply.

   

20

1

The officer issued to him what's called a notice of

2

reexamination and that says that you are to call the DMV within

3

five days and set up an appointment to retake your driver's

 

4

license exam.

He didn't do it within the five days and his

5

license was suspended. An additional reason for his license

 

6

was -- suspension was added to his driving record.

7

He called up a few days later and scheduled a

8

reexamination and I believe the date of the reexamination was

9

March 26th, 2012.

When he showed up on March 26th, 2012 he

10

refused to complete the reexamination and because of that,

 

11

that's an additional reason his license is suspended. The

12

DMV's committed and wants to provide Mr. Sheikh with the

13

opportunity to get his license, he just needs to do those three

14

things.

15

THE COURT: As to the reexamination what opportunity,

16

if any, does a driver have to contest the need for the

 

17

reexamination?

18

MR. BESMER: There's -- from the statutory framework

19

that I've reviewed, Your Honor, none. The --

 

20

THE COURT:

Don't you see, I do -- that's the one

21

place where I think maybe there is a due process issue at least

22

worth thinking about here. I understand that when a court

 

23

reports to DMV that someone hasn't paid a fine or has failed to

24

appear, that has an automatic consequence for the status of the

25

license and the DMV's role is fairly ministerial there.

 
 

21

1

But when it comes to the reexaminations, you know, if

2

I am issued this notice for a reexamination -- and I'm making

3

this up, right? But in a hypothetical case, if I'm issued it

4

because, you know, someone doesn't like the way I'm dressed,

5

right, I shouldn't have to take that reexamination.

6

It seems to me that I should be able to get to a

7

hearing officer, even if it's just one of those telephone

8

things the DMV does in some contexts, to say hey, this was

9

given to me not because of anything I was doing as a driver

10

that indicates my driving skills need to be tested, but because

11

this person didn't like the way I was dressed, didn't like the

12

political slogan on my t-shirt.

13

Doesn't due process require that I have an

14

opportunity to make that argument and try to convince someone

15

that I shouldn't have to retake the test?

16

MR. BESMER: Potentially under the facts that you

17

just -- without conceding anything, Your Honor -- under the

18

facts that you presented. But I'd like to present an analogy

19

here that this is -- the reexamination process is similar in

20

some regards to what happens when somebody gets a DUI before

21

the DMV.

22

The police officer fills out a report, says that this

23

person was arrested for driving under the influence, and the

24

documents are forwarded to DMV, and the person can request a

25

hearing and the hearing's held on whether or not that person

   

22

1

was driving under the influence of alcohol. That person

2

doesn't get to contest or challenge the reporting officer's

3

report and whether there's a need for the hearing, that's taken

4

place during the hearing.

5

 

So in this case, the statutory framework sets out

6

specific things that the officer needs to observe and report to

7

trigger the reexamination process.

8

 

And included in the letter that we sent to Mr. Sheikh

9

on July 2014 which is in the Court's record, we included a copy

10

of the police report that outlined his erratic behavior, his

11

cursing, his need to be placed in handcuffs and his ultimate

12

arrest over a traffic violation.

13

 

So to the extent that he believes that he was

14

mistreated by the police, that's not something the DMV

15

addresses, that's something that he needs to take up with the

16

police department.

17

 

So from the perspective of the reexamination process,

18

I

think that the statutory framework that's established

19

protects a person's due process rights. It's really not unlike

20

the DUI situation where a person's arrested for a DUI. They

21

don't get to challenge, well I think the cop was picking on me,

22

I

really wasn't drunk.

23

THE COURT: Okay. Thank you. That's helpful.

24

Mr. Sheikh, I'm going to give you the last word.

25

What -- are there any things you've heard from Mr. Besmer that

   

23

1

you want to correct, any additional facts you think I need to

2

know?

3

 

MR. SHEIKH: Well I think, or just a really important

4

point, that there's a process to challenge the need for their

 

5

demand for medical tests -- unspecified medical tests. There

6

should be a mechanism to challenge those tests and somebody

7

needs to provide an opportunity as a justification.

 

8

 

Police saying something is that their accusation, a

 

9

report, or a proof of wrongdoing, you know.

I mean there's a

10

difference. That's their accusation that needs to be heard and

11

give -- they need to provide justification of demanding such a

12

reexamination.

 

13

 

But I mean there are a couple of points.

For

14

example, one of the points defendant did -- well, as you know,

15

police -- behavior of the police is relevant. Like they took

 

16

me in custody once, they released me, my wife came to pick me

17

up. They came, took me in custody because really it builds

18

your behavior on multiple occasions. The Court -- you know, I

19

was deprived of medication. I could die over there. I don't

 

20

know.

So --

21

THE COURT: But you haven't raised claims based on

 

22

any of those facts in your complaint, sir.

The --

 

23

 

MR. SHEIKH:

So the point is that -- let me get to

 

24

the point. The point is defendant not saying that my behavior

25

is relevant -- my behavior before the police is relevant and --

   

24

1

but what police did to me is relevant to this complaint, which

2

kind of makes sense, but I mean this establishes there is a

 

3

need for a hearing that could establish the need for such a

4

medical test or what they call a reexamination.

 

5

 

There are levels of problems. I cannot go into

 

6

detail on all of these, but there are at least three major

7

problems in those. We are just talking on the first level,

8

there is a need for reexamination.

 

9

 

THE COURT:

Okay. Thank you, Mr. Sheikh.

Let me

10

explain how -- what's going to happen next. Okay. I'm taking

11

all these matters under submission. I will issue a written

 

12

order and findings and recommendations.

 

13

 

Some of the matters that are before me right now, I

 

14

have the authority as a United States Magistrate Judge to rule

15

on directly, that includes discovery related matters; but Judge

16

Burrell is the district judge in this case and he is the one

 

17

who has the authority to enter a final order on a motion to

18

dismiss.

19

 

So what I do is lay out my findings and

 

20

recommendations, my analysis of the issue and I tell Judge

 

21

Burrell which way I think he should go and you will receive

22

those.

And if you disagree with any part of it, you file

23

objections to the findings and recommendations with Judge

24

Burrell. The instructions for that will be included.

 

25

 

MR. SHEIKH: Yes, Your Honor.

 

25

1

THE COURT:

And he's the one who will make the final

2

decision. Okay?

3

MR. SHEIKH: Yes, Your Honor.

 

4

THE COURT: Thank you very much. The matter's under

5

submission.

6

MR. BESMER: Thank you, Your Honor.

7

MR. SHEIKH: Thank you so much, Your Honor.

8

(Whereupon the hearing in the above-entitled matter was

9

adjourned at 10:27 a.m.)

 

10

--o0o--

 

11

CERTIFICATE

12

I certify that the foregoing is a correct transcript from

13

the electronic sound recording of the proceedings in the above-

14

entitled matter.

15

16

November 12, 2014

17

Patricia A. Petrilla, Transcriber

 

18

AAERT CERT*D-113

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