Fenters et al v. Yosemite Chevron et al, No. 1:2005cv01630 - Document 228 (E.D. Cal. 2010)

Court Description: MEMORANDUM, OPINION and ORDER granting 133 Motion for Summary Judgment signed by Judge Oliver W. Wanger on 12/29/2010. (Lundstrom, T)
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Fenters et al v. Yosemite Chevron et al Doc. 228 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT FOR THE 7 EASTERN DISTRICT OF CALIFORNIA 8 9 TIFFANY FENTERS, 10 Plaintiff, 11 vs. 12 13 YOSEMITE CHEVRON, et al., 14 Defendants. 15 16 17 18 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV-F-05-1630 OWW/DLB MEMORANDUM DECISION GRANTING COUNTY DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Doc. 133) Before the Court is Defendants County of Merced, Gordon Spencer, and Merle Wayne Hutton’s motion for summary judgment.1 19 A. GOVERNING STANDARDS. 20 Summary judgment is proper when it is shown that there 21 exists “no genuine issue as to any material fact and that the 22 moving party is entitled to judgment as a matter of law.” 23 Fed.R.Civ.P. 56. A fact is “material” if it is relevant to an 24 25 26 1 The motions for summary judgment filed by the Abbate Defendants and the Cassabon Defendants will be resolved by separate Memoranda Decisions. 1 Dockets.Justia.com 1 element of a claim or a defense, the existence of which may 2 affect the outcome of the suit. 3 Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th 4 Cir.1987). 5 governing a claim or a defense. 6 inferences drawn from it must be construed in the light most 7 favorable to the nonmoving party. 8 9 T.W. Elec. Serv., Inc. v. Materiality is determined by the substantive law Id. The evidence and all Id. The initial burden in a motion for summary judgment is on the moving party. The moving party satisfies this initial burden 10 by identifying the parts of the materials on file it believes 11 demonstrate an “absence of evidence to support the non-moving 12 party’s case.” 13 (1986). 14 summary judgment. 15 party “may not rely on the mere allegations in the pleadings in 16 order to preclude summary judgment,” but must set forth by 17 affidavit or other appropriate evidence “specific facts showing 18 there is a genuine issue for trial.” 19 may not simply state that it will discredit the moving party’s 20 evidence at trial; it must produce at least some “significant 21 probative evidence tending to support the complaint.” 22 explained in Nissan Fire & Marine Ins. Co. v. Fritz Companies, 23 210 F.3d 1099, 1102-1103 (9th Cir.2000): 24 25 26 Celotex Corp. v. Catrett, 477 U.S. 317, 325 The burden then shifts to the nonmoving party to defeat T.W. Elec., 809 F.2d at 630. Id. The nonmoving The nonmoving party The vocabulary used for discussing summary judgments is somewhat abstract. Because either a plaintiff or a defendant can move for summary judgment, we customarily refer to the moving and nonmoving party rather than to 2 Id. As 1 2 3 4 5 6 7 8 plaintiff and defendant. Further, because either plaintiff or defendant can have the ultimate burden of persuasion at trial, we refer to the party with and without the ultimate burden of persuasion at trial rather than to plaintiff and defendant. Finally, we distinguish among the initial burden of production and two kinds of ultimate burdens of persuasion: The initial burden of production refers to the burden of producing evidence, or showing the absence of evidence, on the motion for summary judgment; the ultimate burden of persuasion can refer either to the burden of persuasion on the motion or to the burden of persuasion at trial. 9 10 11 12 13 14 15 16 17 A moving party without the ultimate burden of persuasion at trial - usually, but not always, a defendant - has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment ... In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party’s claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial ... In order to carry its ultimate burden of persuasion on the motion, the moving party must persuade the court that there is no genuine issue of material fact .... 18 19 20 21 22 23 24 25 26 If a moving party fails to carry its initial burden of production, the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial ... In such a case, the nonmoving party may defeat the motion for summary judgment without producing anything ... If, however, a moving party carries its burden of production, the nonmoving party must produce evidence to support its claim or defense ... If the nonmoving party fails to produce enough evidence to create a genuine issue of material fact, the moving party wins the motion for summary judgment ... But if the nonmoving party produces enough evidence to 3 1 create a genuine issue of material fact, the nonmoving party defeats the motion. 2 The question to be resolved is not whether the “evidence 3 unmistakably favors one side or the other, but whether a fair4 minded jury could return a verdict for the plaintiff on the 5 evidence presented.” United States ex rel. Anderson v. N. 6 Telecom, Inc., 52 F.3d 810, 815 (9th Cir.1995). This requires 7 more than the “mere existence of a scintilla of evidence in 8 support of the plaintiff’s position”; there must be “evidence on 9 which the jury could reasonably find for the plaintiff.” Id. 10 The more implausible the claim or defense asserted by the 11 nonmoving party, the more persuasive its evidence must be to 12 avoid summary judgment.” Id. 13 Rule 56(e)(2) requires that the opposing party “may not rely 14 merely on allegations or denials in its own pleadings” but “must 15 - by affidavits or as otherwise provided in this rule - set out 16 specific facts showing a genuine issue for trial.” “If the 17 opposing party does not so respond, summary judgment should, if 18 appropriate, be entered against that party.” Id. Summary 19 judgment cannot be granted merely because Plaintiff has not 20 timely complied with a Court Order or Local Rule. Henry v. Gill 21 Industries, Inc., 983 F.2d 943, 950 (9th Cir.1993). However, in 22 Carmen v. San Francisco Unified School District, 237 F.3d 1026, 23 1031 (9th Cir.2001), the Ninth Circuit held: 24 25 26 [T]he district court may determine whether there is a genuine issue of material fact, on summary judgment, based on the papers submitted on the motion and such other papers 4 as may be on file and specifically referred to and facts therein set forth in the motion papers. Though the court has discretion in appropriate circumstances to consider other materials, it need not do so. The district court need not examine the entire file for evidence establishing a genuine issue of material fact, where the evidence is not set forth in the opposing papers with adequate references so that it could conveniently be found. 1 2 3 4 5 6 7 B. 8 DUF 1: 9 DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS. In approximately April or May of 2003, Defendant Spencer was contacted by Jim Abbate with respect to an employee 10 stealing from Yosemite Chevron owned, in part, by his brother, 11 Defendant Robert Abbate. Plaintiff’s Response: UNDISPUTED. 12 DUF 2: 13 Jim Abbate explained to Defendant Spencer that Marty 14 Clair, a former detective with the Merced Police Department, told 15 him to contact the District Attorney’s Office with respect to the 16 theft from Yosemite Chevron. 17 para. 3]. [Declaration of Gordon Spencer, Plaintiff’s Response: 18 Disputed, as this omits 19 pertinent facts. Clair is a golfing buddy of Jim Abbate and 20 used to work with Spencer for 20 years, including being a lead 21 investigator on several homicide cases Spencer tried. 22 Deposition, p. 30-31. 23 his. 24 Abbate broached the issue with Spencer at an event they mutually 25 attended. 26 that Abbate’s complaint came through any conventional Spencer Spencer conceded that Clair is a friend of Spencer Deposition, p. 31. After speaking with Clair, Jim Spencer Deposition, p. 33. 5 There is thus no evidence 1 channel or source. Defendants’ Reply: Plaintiff’s evidence does not 2 3 dispute the facts as stated nor is it relevant. Plaintiff’s 4 argument that Abbate’s complaint did not come through a 5 “conventional channel or source” is vague, argumentative and 6 unsupported by evidence. 7 Spencer did not testify that Clair is a “golfing buddy” of Jim 8 Abbate, nor did he testify that he and Clair worked together for 9 20 years. Plaintiff misstates facts; Defendant The testimony cited states that Defendant Spencer is 10 not sure whether he spoke to Jim Abbate on the telephone or in 11 person and that it lasted “two minutes at maximum.” 12 Court Ruling: DUF 2 is UNDISPUTED. Plaintiff’s 13 evidence does not dispute the fact that Jim Abbate contacted 14 Defendant Spencer on the advice of Marty Clair. 15 DUF 3: Defendant Spencer told Jim Abbate that he would have 16 somebody from the investigations unit of the District Attorney’s 17 Office contact him. 18 19 Plaintiff’s Response: UNDISPUTED. DUF 4: Defendant Spencer then contacted either District 20 Attorney Chief Investigator Dan Murphy (Chief Murphy) or 21 Defendant District Attorney Supervising Investigator Wayne Hutton 22 and informed them of the Yosemite Chevron employee theft 23 allegations and asked them to arrange a meeting with Jim Abbate. 24 25 26 Plaintiff’s Response: UNDISPUTED. DUF 5: Neither Defendant Spencer nor Defendant Hutton were involved in making the arrangements for the meeting that was to 6 1 take place. 2 of Merle Wayne Hutton, para. 3]. 3 [Declaration of Gordon Spencer, para. 4; Declaration Plaintiff’s Response: Disputed. Spencer was involved 4 in arranging the meeting by instructing personnel from his 5 officer to do so. 6 characterized his role as “setting up” the meeting. 7 Deposition, p. 50-51. 8 9 Spencer Deposition, p.33. Spencer himself Spencer Defendants’ Reply: Defendant Spencer defines “setting up the meeting,” as telling someone who works for him to 10 set up a meeting. There is no evidence that either Defendant 11 Spencer or Defendant Hutton were involved in the logistics, i.e., 12 scheduling the time or place for the meeting. 13 cited by Plaintiff also confirms that Defendant Spencer asked 14 Chief Murphy to meet with the complaining witness and that he was 15 not going to sit through the whole meeting. 16 Court Ruling: DISPUTED. The testimony The question is ambiguous. 17 Defendant Spencer had some involvement in arranging the meeting. 18 There is no evidence that Defendant Hutton had any role or 19 involvement in arranging the meeting. 20 DUF 6: On May 14, 2003, a meeting between Defendant Abbate, 21 Jim Abbate, Chief Murphy, and Defendant Hutton was held at the 22 Merced County District Attorney’s Office. 23 Spencer, para. 5; Declaration of Merle Wayne Hutton, para. 3]. 24 25 26 Plaintiff’s Response: Disputed. [Declaration of Gordon Spencer was also present at the meeting. Defendant’s Reply: Plaintiff’s evidence does not 7 1 dispute the facts as stated nor is it relevant. 2 states that Defendant Spencer was only there for a portion of the 3 meeting and he was not sure when Defendant Spencer left. Court Ruling: DISPUTED. 4 Defendant Hutton The statement is incomplete. 5 The truth is that Defendant Spencer was present for some 6 undetermined amount of time at the May 14, 2003 meeting. 7 DUF 7: Of the approximately one hour long meeting, 8 Defendant Spencer was present for approximately five to ten 9 minutes. [Declaration of Gordon Spencer, para. 5]. Plaintiff’s Response: Disputed. 10 According to Defendant 11 Hutton, Spencer may have been present for nearly the entire 12 meeting, which may have lasted for less than the stated time. Defendants’ Reply: Defendant Hutton testified that 13 14 Defendant Spencer was only there for a portion of the meeting and 15 he was not sure when he left, “whether it was towards the 16 beginning or towards the end.” 17 that the meeting was not very long and may have lasted one-half 18 hour. 19 Defendant Hutton also testified Court Ruling: DISPUTED. The statement is inaccurate. 20 The amount of time Defendant Spencer was present, some disputed 21 amount of time, at the May 14, 2003 meeting is subject to 22 different accounts. 23 DUF 8: The sole purpose of Defendant Spencer’s presence at 24 the meeting was to introduce the District Attorney investigators 25 to Defendant Abbate and Jim Abbate. 26 Spencer, para. 5]. 8 [Declaration of Gordon Plaintiff’s Response: Disputed, since according to 1 2 Defendant Hutton, Spencer may have been present for nearly the 3 entire meeting, which may have lasted less than the stated time. 4 Spencer himself says he recalled being at substantive portions of 5 the meeting. 6 been no reason for Spencer to remain at the meeting if that was 7 his only purpose. Spencer Deposition, pp.57-58. There would have 8 Defendants’ Reply: See Replies to DUF 6 and 7. 9 Court Ruling: DUF 8 is DISPUTED. The cited portions 10 of Spencer’s deposition do not substantiate Plaintiff’s 11 assertion. 12 present at the meeting. 13 The issue is what Spencer’s purpose was in being DUF 9: The evidence remains in dispute. On May 14, 2003, Defendant Hutton began his 14 investigation into allegations that Plaintiff and Alejandro 15 Aceves had embezzled from their employer, Yosemite Chevron, by 16 interviewing Defendant Abbate. 17 18 19 20 21 22 23 24 25 26 Plaintiff’s Response: UNDISPUTED. DUF 10: The following is a summary of Defendant Abbate’s May 14, 2003, statement to Defendant Hutton: Prior to March 27, 2003, defendant ABBATE suspected plaintiff was stealing lottery tickets and cigarettes from Yosemite Chevron. Another employee also told defendant ABBATE there were rumors that plaintiff and a co-worker, Alejandro Aceves, were stealing money in the following manner: After a customer made a purchase, plaintiff or Aceves (whoever was working that particular shift) would collect payment from the customer and deposit it in the cash drawer. That person would then void the transaction in the cash register. When they 9 17 reconciled their cash drawer at the end of their respective shifts, there would be more cash than what the computer showed there should be. The extra cash would then be pocketed. Defendant ABBATE explained that there were legitimate reasons for voiding transactions, e.g., a customer would change their mind on making a purchase or ask for a price check on an item. However, records showed that the number of voided transactions by plaintiff and Aceves far exceeded what would be acceptable during a shift, and were two to three times greater than the average number of voided transactions made by other employees. On March 31, 2003, (four days after plaintiff resigned from Yosemite Chevron), defendant ABBATE went to Yosemite Chevron towards the end of Aceves’ shift in an attempt to prove or disprove the embezzlement allegations. Defendant ABBATE discovered Aceves’ cash drawer had $295.98 over what the cash register total showed. Defendant ABBATE confronted Aceves who admitted he had been voiding transactions and pocketing the extra cash. Aceves also told defendant ABBATE that it was plaintiff who taught him how to do this. Defendant ABBATE, by reviewing the Yosemite Chevron receipts, estimated thousands of dollars had been embezzled in March 2003 alone. Defendant HUTTON requested that defendant ABBATE review the Yosemite Chevron cash register records to determine the actual amount embezzled. 18 Plaintiff’s Response: UNDISPUTED. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 19 DUF 11: Defendant Hutton met with Defendant Abbate again on 20 May 16, 2003. Defendant Abbate provided Defendant Hutton a 21 breakdown of transactions voided by Plaintiff and Aceves from 22 June 2002 to March 2003. Defendant Abbate also provided Defendant 23 Hutton with a box of original Yosemite Chevron daily receipts for 24 the time period between June of 2002 and March of 2003 for the 25 shifts that Plaintiff and Aceves worked. 26 explained that, based on these records, he calculated that 10 Defendant Abbate 1 Plaintiff had embezzled $12,290.76, from July 2002 through March 2 2003, and Aceves had embezzled $19,449.16, from August 2002 3 through March 2003. 4 methodology in calculating the amounts that were embezzled. 5 6 Defendant Abbate also explained his Plaintiff’s Response: UNDISPUTED. DUF 12: On June 4, 2003, arrangements were made for Aceves 7 to meet with Defendant Abbate at Defendant Abbate’s office. This 8 meeting was surreptitiously recorded and monitored by Defendant 9 Hutton, who was present at Defendant Abbate’s office, but in 10 another room. 11 Aceves, Aceves again confessed to Defendant Abbate, though he 12 claimed he had not embezzled as much and for as long as Mr. 13 Abbate was claiming. 14 showed him how to steal by voiding transactions. 15 Hutton entered the room, he introduced himself to Aceves as 16 a supervising investigator for the District Attorney’s Office. 17 He also explained that Aceves was not under arrest and was free 18 to leave any time. 19 again confessed and admitted that Plaintiff had showed him how to 20 embezzle via voiding transactions. 21 Hutton, para.’s 6-7]. 22 Before Defendant Hutton made his presence known to Aceves also again stated that Plaintiff had When Defendant Defendant Hutton interviewed Aceves, who once Plaintiff’s Response: [Declaration of Merle Wayne DISPUTED. During his trial 23 testimony, Aceves testified that he learned how to do illegal 24 voids himself, in order to obtain extra money. 25 Transcript, pp. 266-267, 276, 285, 287. 26 he had seen Fenters do any illegal voids or steal any money from 11 See Trial Aceves never told Abbate 1 the store. Trial Transcript, pp. 275. In connection with his 2 firing of Aceves, Abbate first brought up Fenters’ name, saying 3 that “he knew Tiffany was in it.” 4 Aceves thereafter only implicated Fenters and other employees in 5 an attempt to deflect blame from himself and also because Abbate 6 seemed to focus on her. 7 292. 8 2003 meeting because she was first suggested by Abbate himself. 9 See Trial Transcript, p. 268, 270, 272. Trial Transcript, p. 291. See Trial Transcript, pp. 272-273, 291- Aceves also mentioned Fenters at the subsequent June 4, Abbate indicated that 10 Aceves could receive a shorter sentence if he helped make the 11 case against Fenters easier. 12 prosecution echoed this offer. 13 Abbate also told Aceves that if Aceves could get evidence to 14 convict Fenters that he could benefit in his own case. 15 Transcript, pp. 295. 16 told him that he was pressured by Abbate to implicate Fenters. 17 Bacciarini Deposition, p. 48-49. 18 that Abbate suggested Fenters as a possible embezzler and that 19 Aceves never implicated her of his own accord. 20 similar and more extensive testimony during his deposition. 21 addition to confirming that the subject events were fresher in 22 his mind at the time of his criminal testimony, see Aceves 23 Deposition, p. 168, Aceves confirmed that Abbate was the first 24 person to suggest Tiffany Fenters. 25 171, 172, 182. 26 information about anyone else who was identified as a See Trial Transcript, p. 294. The Bacciarini Deposition, p. 64. See Trial Bacciarini recalls that Aceves may have There is thus ample evidence Aceves provided Aceves Deposition, pp. 170, Aceves was never pressured for additional 12 In 1 possible embezzler, just Tiffany. Aceves Deposition, pp. 173, 2 178. 3 provide details regarding any alleged conversations he had with 4 Fenters, identify any dates where the two of them met, provide 5 any phone records, identify any shift records where the two of 6 them worked together, review any videotapes from the cash 7 register area where the illicit instruction allegedly took place, 8 or provide any bank records or other evidence of his obtaining 9 illicit funds. Despite the focus on Fenters, no one ever asked Aceves to See Aceves Deposition, p. 175-177, 187-188. 10 Aceves testified “that’s why it was kind of easy to lie because 11 nobody actually went into detail.” 12 It seemed that the objective of Abbate and Hutton was to pursue 13 Fenters and have him testify against her. 14 178, 181. 15 Hutton’s entire object was to construct a case against Fenters, 16 even if it meant disregarding the truth. Aceves Deposition, p. 175. Aceves Deposition, pp. This evidence further demonstrates that Abbate and Defendants’ Reply: Fact established. 17 Plaintiff’s 18 evidence does not dispute the facts as stated nor is it 19 relevant. 20 Court Ruling: DUF 12 is UNDISPUTED as to what occurred 21 at the recorded meeting on June 4, 2003. Plaintiff’s 22 theory about Abbate’s motives do not change the record of what 23 was said and recorded. 24 included in this statement. 25 investigator for the District Attorney. 26 evidence that the tape recording was tampered with or was There may be additional facts not Hutton was acting as a criminal 13 Plaintiff presents no 1 otherwise fabricated. 2 that Defendant Hutton suggested to Aceves that Plaintiff was a 3 co-perpetrator or that Defendant Hutton then had any basis to 4 suspect that Aceves was lying during the June 4, 2003 interview 5 or thereafter. 6 DUF 13: Further, Plaintiff presents no evidence Defendant Hutton prepared a written report 7 reflecting his investigation as described above. 8 [Declaration of Merle Wayne Hutton, para. 8]. Plaintiff’s Response: DISPUTED. Hutton’s report did not 9 10 report crucial facts, i.e., that Aceves was coerced. 11 Hutton was present at the June 4, 2003 meeting when Aceves only 12 mentioned Fenters because she was first suggested by Abbate 13 himself. 14 indicated that Aceves could receive a shorter sentence if he 15 helped make the case against Fenters easier. 16 Transcript, p. 294. 17 Bacciarini Deposition, p. 64. 18 Aceves could get evidence to convict Fenters that he could 19 benefit in his own case, in part in order to “lure him in.” 20 Trial Transcript, p. 295; Abbate Deposition, p. 107. 21 thus ample evidence that Abbate suggested Fenters as a possible 22 embezzler and that Aceves never implicated her of his own accord. 23 There is thus evidence that Hutton, who was present for the 24 interview, was on notice of these facts as of June 2003. 25 Defendants’ Reply: See Reply to DUF 12, supra. 26 Court Ruling: DUF 13 is UNDISPUTED only to the extent See Trial Transcript, pp. 268, 270, 272. Defendant Abbate See Trial The prosecution echoed this offer. Abbate also told Aceves that if 14 See There is 1 that Hutton prepared a report which speaks for itself. 2 4, 2003, tape of the interview shows that Defendant Abbate did 3 not first suggest Plaintiff’s name to Aceves. 4 transcript of the June 4, 2003 interview establishes that 5 Defendant Hutton did not make any promises to Aceves in exchange 6 for his statement. 7 DUF 14-16: The June Furthermore, the Attached as Exhibits 1-3 to the Declaration 8 of Merle Wayne Hutton are true and correct copies of this report, 9 the video of the June 4, 2003, confession of Aceves, and a 10 transcript of this confession. Plaintiff’s Response: Undisputed, except as to 11 12 argumentative reference to “confession” instead of “statement.” Court Ruling: DUF 14-16 are UNDISPUTED. 13 14 DUF 17: Per normal procedures, Defendant Hutton submitted 15 his report (and Defendant Abbate’s records summary) to Deputy 16 District Attorney (“DDA”) Bruce Gilbert for review and further 17 action, if any. [Declaration of Merle Wayne Hutton, para. 9]. Plaintiff’s Response: 18 Disputed, as the evidence shows 19 normal procedures would have resulted in the Fenters case being 20 investigated by the Merced Police Department. 21 acknowledges that Abbate could have taken his allegations to the 22 Merced Police Department instead of the District Attorney’s 23 Office. 24 Attorney’s Office has directed similar potential cases to the 25 Merced PD. 26 DA’s Office re: a potential embezzlement case in the City of Hutton Deposition, p. 45. Hutton Moreover, the District See Exhibit B, Email communication from the Merced 15 1 Merced. 2 cases in the last five years of his tenure where his officer was 3 the lead investigating agency. 4 Spencer could provide only two examples of embezzlement Spencer Deposition, p. 35-38. Court Ruling: DUF 17 is UNDISPUTED. Plaintiff’s 5 evidence does not negate that, after the case had been brought to 6 the District Attorney’s Office for investigation, Defendant 7 Hutton’s submission of his report and Defendant Abbate’s 8 spreadsheet to the Deputy District Attorney for review and 9 further action was according to established procedure. 10 DUF 18: DDA Gilbert held the position of “Charging Deputy,” 11 whose normal duties were to review all felony level law 12 enforcement reports to determine if probable cause existed based 13 upon the reports submitted, and to file criminal charges. 14 [Declaration of Merle Wayne Hutton, para. 9]. 15 16 Plaintiff’s Response: UNDISPUTED. DUF 19: Defendant Hutton did not request or recommend that 17 Plaintiff be charged with any particular crimes. 18 Merle Wayne Hutton, para. 9]. 19 Plaintiff’s Response: Disputed. [Declaration of Hutton’s case report 20 describes his investigation as one for a felony embezzlement. 21 See Investigative Report, Exh. B to Fung. Decl., p. 1 of 6 and 22 Supplemental Report, p. 1 of 2. These same pages show Hutton 23 acted as his own supervisor with respect to his report. 24 Court Ruling: DUF 19 is compound. Defendant Hutton’s 25 report makes no recommendation that Plaintiff be charged. 26 be a “request” for prosecution. DISPUTED. 16 It may DUF 20: Defendant Hutton’s intention in submitting the 1 2 report was to allow the prosecuting attorneys in the District 3 Attorney’s Office to determine if there was sufficient evidence 4 to prosecute Aceves and Plaintiff. 5 Hutton, para. 9]. [Declaration of Merle Wayne Plaintiff’s Response: Disputed. 6 Hutton’s case report 7 describes his investigation as one for a felony embezzlement. 8 See Investigative Report, Exh. B to Fung. Decl., p. 1 of 6 and 9 Supplemental Report, p. 1 of 2. These same pages show Hutton 10 acted as his own supervisor with respect to his report. 11 Moreover, an indication of Hutton’s bad faith and malice is his 12 trial testimony that he did not check the financial records 13 provided by Abbate in May 2003 because he had already made 14 arrangements to have them reviewed by an auditor. 15 Transcript, p. 378. 16 connection with this motion that the Cassabon firm was not 17 contacted or retained until October 2003. 18 statement is indicative of malice on Hutton’s part. However, it is conceded by the defense in This intentional false Court Ruling: DUF 20 is DISPUTED. 19 See Trial Defendant Hutton’s 20 report makes no recommendation that Plaintiff be charged, but 21 reports “a felony embezzlement” and is submitted for further 22 action. DUF 21: 23 Other than submitting his report, Defendant Hutton 24 had no input into DDA Gilbert’s decision to charge Plaintiff and 25 Aceves with a crime. 26 9]. [Declaration of Merle Wayne Hutton, para. 17 1 2 3 Plaintiff’s Response: Disputed on the same grounds asserted in response to DUF 13. Court Ruling: DUF 21 is UNDISPUTED. Plaintiff presents 4 no evidence from which it may be inferred that Defendant Hutton 5 had direct participation in the decision to charge Plaintiff 6 other than preparing the report of his investigation which 7 contributed to the decision. 8 9 DUF 22: Defendant Hutton, based upon his law enforcement training and experience, believed, in good faith, that there was 10 sufficient probable cause to believe that Aceves and Plaintiff 11 had committed the crime of embezzlement from Yosemite Chevron. 12 [Declaration of Merle Wayne Hutton, para. 9]. 13 Plaintiff’s Response: 14 asserted in response to DUF 13. 15 Disputed on the same grounds Defendants’ Reply: Plaintiff’s evidence does not 16 dispute the facts as stated nor is it relevant. 17 incorporate their reply to DUF 12 and 20. 18 19 20 Defendants Court Ruling: DUF 22 is DISPUTED based on Hutton’s failure to conduct an analysis of the existing evidence. DUF 23: Prior to a criminal complaint being filed against 21 Plaintiff, Defendant Hutton was not requested by any prosecuting 22 attorneys to conduct any additional or follow up investigation 23 into the embezzlement allegations. 24 25 26 Plaintiff’s Response: UNDISPUTED. DUF 24: At the time of the May 14, 2003, meeting, Defendant Spencer knew Defendant Abbate and his brother, Jim Abbate, and 18 1 had a friendly relationship with them, however, he did not 2 consider himself a close, personal friend. 3 Gordon Spencer, para. 6]. Plaintiff’s Response: 4 Disputed. [Declaration of The objective facts 5 show that Spencer has an extensive relationship and ties to the 6 Abbates. 7 has known Robert Abbate for six or seven years. 8 Deposition, pp. 8, 9, 11. 9 is “better off than most.” Spencer has known the Abbate family for 15 years and Spencer Spencer knows that the Abbate family Spencer Deposition, p. 12. Spencer 10 knows that the Abbate family is politically active and has seen 11 members of the family at political functions. 12 Deposition, pp. 13, 21. 13 attended by the Abbates, and they have common acquaintances. 14 Spencer Deposition, pp. 14-15. 15 country club as the Abbates and has golfed with Jim Abbate. 16 Spencer Deposition, pp. 16-17. 17 Abbate at the “19th hole.” 18 Spencer helped prepare a dinner in connection with a charity gold 19 tournament sponsored by the Abbates. 20 Spencer and Jim Abbate belong to some of the same social 21 organizations. 22 family have contributed to Spencer’s DA campaigns and attended 23 campaign fundraisers, even though Spencer ran unopposed. 24 Deposition, pp. 21-22, 26-27. 25 “office holder,” as permitted by electoral rules. 26 Deposition, p. 27-28. Spencer Spencer has been to social events also Spencer belongs to the same Spencer has associated with Jim Spencer Deposition, p. 17-18. Spencer Deposition, p. 19. Spencer Deposition, p. 20. Members of the Abbate Spencer Spencer then used this money as an 19 Spencer 1 Court Ruling: DUF 24 is DISPUTED. Plaintiff presents 2 evidence from which it may be inferred that Defendant Spencer had 3 a well developed social relationship with Defendant Abbate and 4 the Abbate family in a reasonably small community. 5 does not show that Defendant Spencer was a close, personal friend 6 of Defendant Abbate or the Abbate family. 7 DUF 25: The evidence During the pendency of the criminal investigation 8 and prosecution of Plaintiff, Defendant Spencer did not believe 9 that his acquaintance with the Abbate’s created any sort of 10 conflict of interest that would preclude the District Attorney’s 11 Office from being involved in the investigation and prosecution. 12 [Declaration of Gordon Spencer, para. 7]. 13 14 15 Plaintiff’s Response: Disputed on the same grounds asserted in response to DUF 24. Court Ruling: DUF 25 is UNDISPUTED as to what Spencer 16 says he “believed.” 17 Abbate family objectively constituted a conflict of interest such 18 that the District Attorney’s Office was precluded by law from 19 investigating Defendant Abbate’s claim that Plaintiff had 20 embezzled from Yosemite Chevron remains to be determined. 21 DUF 26: Whether Spencer’s relationship with the Had Defendant Spencer believed he had a close 22 personal relationship with the Abbates, he would have referred 23 their theft allegations to the Merced Police Department. 24 [Declaration of Gordon Spencer, para. 7]. 25 26 Plaintiff’s Response: Disputed on the same grounds asserted in response to DUF 24. 20 1 Court Ruling: DUF 26 is DISPUTED as it goes entirely to 2 credibility. 3 DUF 27: Defendant Spencer’s actions in facilitating the 4 meeting between the Abbate’s and the District Attorney’s Office 5 investigators was solely for legitimate law enforcement purposes. 6 [Declaration of Gordon Spencer, para. 8]. 7 Plaintiff’s Response: Disputed. Before he even met 8 with Abbate initially, Hutton was already told that the 9 embezzlement case was “coming to [his] office.” Hutton 10 Deposition, p. 8. 11 the case had been obtained in a brief meeting between James 12 Abbate and District Attorney Gordon Spencer. 13 pp. 8-9, 35-36. 14 alleged embezzlement when he set up the meeting. 15 Deposition, pp. 52-53. 16 Spencer told the Abbates during the initial meeting that they 17 were “in good hands.” 18 circumstantial evidence that Spencer was intending on proceeding 19 with prosecuting Fenters regardless of the facts. 20 At this point the only information concerning Hutton Deposition, Spencer did not know the magnitude of the Spencer Without first conferring with Hutton, Spencer Deposition, p. 54. Court Ruling: DUF 27 is UNDISPUTED. This is Plaintiff’s 21 evidence does not support the inference that Defendant Spencer 22 was intent on 23 of the merits and results of Defendant Hutton’s investigation. 24 The evidence establishes that Defendant Spencer had no direct 25 involvement in the investigation or the decision to bring 26 criminal charges against Plaintiff after the May 2003 meeting, prosecuting Plaintiff for embezzlement regardless 21 1 2 where he introduced Abbate to Hutton. DUF 28: Defendant Spencer did not take this action to 3 personally benefit either himself or the Abbates. 4 of Gordon Spencer, para. 8]. Plaintiff’s Response: Disputed. 5 6 receiving victim restitution. [Declaration Abbate acknowledges Abbate Deposition, p. 56. Defendants’ Reply: Plaintiff’s evidence does not 7 8 dispute the facts as stated and is irrelevant. Defendants assert 9 that Abbate’s deposition testimony is vague and irrelevant and 10 that the restitution was the result of the guilty plea of Aceves 11 to embezzlement and not related to Plaintiff. 12 Court Ruling: DUF 28 is UNDISPUTED. Abbate’s 13 deposition testimony is that the restitution was the result of 14 Aceves’ guilty plea and the Court’s order. 15 DUF 29: Defendant Spencer did not harbor any ill will, 16 animosity or malicious intent towards Plaintiff. 17 Gordon Spencer, para. 8]. Plaintiff’s Response: Disputed on the same grounds 18 19 [Declaration of asserted in response to DUF 27. Court Ruling: DUF 29 is UNDISPUTED. 20 The facts that 21 Defendant Spencer had some relationship with the Abbates prior to 22 the complaint of embezzlement being brought to the District 23 Attorney’s Office does not constitute evidence of ill will, 24 animosity or malicious intent by Defendant Spencer against 25 Plaintiff. 26 who she was. It is undisputed that Defendant Spencer did not know 22 1 DUF 30: During the pendency of the criminal investigation 2 and prosecution of Plaintiff, Defendant Spencer did not know who 3 Plaintiff was. 4 5 6 7 8 9 Plaintiff’s Response: UNDISPUTED. DUF 31: Defendant Spencer had never heard her name, nor to his knowledge had he ever had any contact with her. Plaintiff’s Response: UNDISPUTED. DUF 32: Prior to the May 14, 2003, meeting, Defendant Hutton did not know anything about the Abbate family’s reputed 10 financial standing, or that they were business owners. 11 Plaintiff’s Response: UNDISPUTED. 12 DUF 33: Defendant Hutton was familiar with the Abbate’s name 13 as being listed in a roster of a fraternal organization that he 14 belongs to, but he had never met with, or spoken to, any member 15 of the Abbate family prior to the May 14, 2003, meeting. 16 17 Plaintiff’s Response: UNDISPUTED. DUF 34: The decision as to whether the District Attorney’s 18 Office would conduct the investigation into the Yosemite Chevron 19 embezzlement allegations was made by Defendant Hutton. 20 [Declaration of Merle Wayne Hutton, para. 11]. 21 Plaintiff’s Response: Disputed on the same grounds 22 asserted in response to DUF 27. Further disputed, as the 23 evidence shows this decision was unduly influenced by Abbate’s 24 misrepresentations. 25 in good faith in proceeding to a preliminary hearing and trial. 26 Bacciarini Deposition, pp. 87-88. The prosecution relied on Abbate’s operating 23 However, Abbate misrepresented 1 to Hutton that only one employee worked on the cash register in a 2 given shift, although he knew the opposite was true on a daily 3 basis. 4 99. 5 typically the last four digits of their phone numbers, and the 6 phone numbers of employees were posted in the store. 7 Deposition, p. 85. 8 their shift reports on a line by line basis to ensure they were 9 responsible for each transaction. Hutton Deposition, pp. 20, 74; Abbate Deposition, p. 81, Indeed, employees’ log on codes to the cash register were Abbate Abbate did not expect employees to review Abbate Deposition, pp. 90-91. 10 Abbate also never told Bacciarini that more than one employee 11 could have worked on the cash register during a given shift. 12 Bacciarini Deposition, p. 16. 13 misrepresentation at trial, only later acknowledging during trial 14 on cross examination that voids could not necessarily be linked 15 to a particular employee, as opposed to a particular shift. 16 Preliminary Hearing Transcript, pp. 8, 17; Trial Transcript, p. 17 242. 18 actually multiple employees could work on the register in a given 19 shift. 20 this important because it would have made the task of identifying 21 a particular employee who committed wrongdoing more difficult. 22 Hutton Deposition, p. 22. 23 retained after the preliminary hearing, the District Attorney’s 24 Office relied on Abbate to review the financial information 25 pertinent to the case against Fenters. 26 33-34. Abbate reiterated this See Hutton would have considered it important to know that Hutton Deposition, p. 21. Hutton would have considered Until the time the Cassabon firm was Hutton Deposition, pp. Abbate’s financial analysis was one of the reasons that 24 1 Hutton submitted the case against Fenters for filing. Hutton 2 Deposition, p. 82. 3 financial evidence then available in a prospective financial 4 crime case. 5 cross-examination at the preliminary hearing that the voids 6 attributable to Fenters were overstated in his spreadsheet. 7 Preliminary Hearing Transcript, pp. 52-59. 8 that certain entries in his spreadsheet appeared to be entered 9 wrongly, and he spent no time reviewing the initial draft Indeed, the Abbate spreadsheet was the only Hutton Deposition, pp. 82-83. Abbate conceded on See Abbate also conceded 10 spreadsheet he prepared. See Preliminary Hearing Transcript, pp. 11 60-61; Abbate Deposition, pp. 60, 64. 12 certain shifts to Fenters, even though the underlying pay point 13 reports did not contain her genuine signature. 14 Transcript, pp. 491-492. 15 he had contact with another anonymous employee, who turned out to 16 be Robert Wilson, around the time of Tiffany’s separation from 17 employment who first provided information regarding the alleged 18 embezzlement, but Abbate did not tell Hutton that Wilson had been 19 fired in December 2002 for stealing from Fenters. 20 Deposition, pp. 72, 92-94; Trial Transcript, p. 488. 21 continued his pattern of misrepresentation at the preliminary 22 hearing and trial by again merely referring to Wilson as an “ex- 23 employee.” 24 Transcript, p. 213. 25 Abbate was aware of Wilson’s firing at all pertinent times. 26 Abbate Deposition, pp. 44-45, 97. Abbate also attributed See Trial Abbate also represented to Hutton that Hutton Abbate See Preliminary Hearing Transcript, p. 41; Trial There never was an anonymous employee, and 25 See Hutton would have considered 1 this information important to include in his investigation 2 report. 3 told Hutton that he had cut Fenters’ hours beginning in January 4 2003 because he suspected she was stealing from his business. 5 See Hutton’s Investigative Report, Exh. B to Fung. Decl., p. 2. 6 Abbate did not concede until trial that Fenters’ hours had 7 not been cut during this time period. 8 235-236. 9 March 2003, Abbate only believed that he was dealing with a petty Hutton Deposition, pp. 90-91. Abbate also initially See Trial Transcript, pp. Indeed, even after Aceves first admitted stealing in 10 issue. Abbate Deposition, p. 102. Abbate also did not provide 11 any tax returns or other financial documents reflecting a drop in 12 revenues during the time when the embezzlement was allegedly 13 occurring. 14 provide Hutton with any videotapes from the register area. 15 Hutton Deposition, p. 23. 16 evidence of his intent to conceal the truth and unduly influence 17 the criminal proceedings against Fenters. 18 that the District Attorney’s Office did no independent 19 investigation that would have permitted it to exercise its 20 discretion in any genuine and autonomous manner. 21 acknowledged, although it was not done in this case, that his 22 office commonly sought the assistance of a forensic accountant or 23 fraud examiner during the investigation stage of a case. 24 Deposition, p. 56. 25 nothing to corroborate Aceves’ statement and Abbate’s 26 spreadsheet, even though he knew Abbate was not an accountant and Hutton Deposition, p. 22. Abbate also did not This is further circumstantial The record also shows Spencer Spencer Indeed, Hutton conceded at trial that he did 26 1 that confessions are not always the full truth. See Trial 2 Transcript, pp. 377-378, 401-404. 3 independent analysis of the Abbate spreadsheets. 4 Deposition, p. 22; Abbate Deposition, p. 108. 5 tested the store surveillance system himself, even though the 6 system would depict money taken from the register by an employee. 7 Hutton Deposition, p. 24. 8 any financial information pertaining to Fenters. 9 Deposition, p. 28-29; Trial Transcript, p. 443. Hutton never did an Bacciarini Hutton also never Hutton never took any steps to obtain Hutton Hutton did not 10 attempt to speak with Fenters’ parents as part of his 11 investigation, even though there was an allegation that Fenters 12 had been “cut off” by them and therefore had a motive to 13 steal. 14 Fenters, refuted this allegation at trial. 15 p. 418.) 16 corroborated the allegation that Fenters’ hours were cut in 17 February 2003 due to her being suspected of stealing. 18 Deposition, p. 71. 19 connection between Fenters and Aceves but made no effort to 20 confirm that through investigation, i.e., phone records, or other 21 Yosemite Chevron employees, Hutton Deposition, p. 31. 22 also never asked for specifics regarding where Aceves and Fenters 23 were when Fenters allegedly taught him to do illegal voiding. 24 Hutton Deposition, pp. 31-32. 25 information suggesting that Abbate was a drug user, although it 26 was provided by the defense during discovery and Hutton Hutton Deposition, p. 30. (Fenters’ father, Virgil See Trial Transcript, Hutton also never obtained any shift records that Hutton Hutton “assumed there was a friendly Hutton Hutton never investigated any 27 1 acknowledges that such matters can have a bearing on a witness’ 2 credibility in a case involving alleged financial loss. 3 Deposition, pp. 83-84; Bacciarini Deposition, p. 88. 4 never asked Aceves if he had prior cash register experience. 5 Trial Transcript, p. 391. 6 employees worked or could use the register in a given shift. 7 Trial Transcript, p. 393. 8 was part of the District Attorney’s investigative team for 9 purposes of Fenters’ criminal case. Hutton Hutton Hutton never investigated how many The evidence also shows that Abbate Hutton acknowledges that 10 Abbate was assisting in the District Attorney’s investigation of 11 the Fenters matter between May 14 and June 4, 2003. 12 Deposition, p. 43. 13 investigation and had his most extensive contacts with Hutton 14 during the investigative phase of the Fenters criminal case. 15 Abbate Deposition, pp. 104, 124. 16 protocol was set up between Abbate and himself with respect to 17 the June 4, 2003 interview of Aceves. 18 43. 19 Hutton Deposition, p. 44. 20 part of that interview, which was done in conformity with 21 guidelines provided by Hutton. Hutton Deposition, pp. 44-45; 22 Abbate Deposition, p. 109-110. Abbate provided an additional 23 eight months of financial analysis at the District Attorney’s 24 request. 25 Hutton spent approximately 20 hours doing his work on the Fenters 26 case, while Abbate worked 35 hours, not including time he spent Hutton Abbate also acknowledges he assisted in the Hutton testified an interview Hutton Deposition, pp. 42- Abbate also set up the June 4, 2003 interview with Aceves. Abbate actually conducted the first Hutton Deposition, p. 44; Abbate Deposition, p. 79. 28 1 assisting in interviews at Hutton’s direction. Hutton 2 Deposition, p. 57; Abbate Deposition, pp. 61-62. 3 investigation is reflected in his initial and follow up reports. 4 Hutton Deposition, p. 57. 5 preliminary hearing and at trial, had as many contacts with 6 Abbate as he did Hutton in preparation for the preliminary 7 hearing. 8 Swanson, who was the prosecutor handling the case against Fenters 9 after the preliminary hearing until just before it went to trial, All of Hutton’s Bacciarini, the lead prosecutor at the Bacciarini Deposition, pp. 10-11. Additionally, James 10 told Fenters’ attorney that he was not permitted to resolve the 11 case via a misdemeanor petty theft plea. 12 Deposition, pp. 32, 35-36. 13 evidence of the District Attorney’s compromised status in the 14 Fenters criminal case. 15 See Virgil Fenters This is further circumstantial Court Ruling: DUF 34 is UNDISPUTED. Plaintiff’s 16 evidence is irrelevant and immaterial to the fact stated, i.e., 17 that Defendant Hutton decided whether the District Attorney’s 18 Office would conduct an investigation of Abbate’s claim that 19 Aceves and Plaintiff had embezzled monies from Yosemite Chevron. 20 How the investigation was conducted is not part of this fact. 21 DUF 35: Defendant Hutton was the investigator from the 22 District Attorney’s Office who had handled the majority of white 23 collar financial crimes investigated by his office, so he 24 therefore assigned himself to the investigation. 25 Merle Wayne Hutton, para. 11]. 26 [Declaration of Plaintiff’s Response: Disputed on the same grounds 29 1 asserted in response to DUF 17. Court Ruling: DUF 35 is UNDISPUTED. 2 Plaintiff’s 3 evidence does not contradict that Hutton was the D.A.’s Office’s 4 investigator. DUF 36: 5 Defendant Hutton’s actions in investigating the 6 embezzlement allegations was motivated solely by legitimate law 7 enforcement concerns. 8 12]. Plaintiff’s Response: Disputed on the same grounds 9 10 [Declaration of Merle Wayne Hutton, para. asserted in response to DUF 13. Defendants’ Reply: Plaintiff’s evidence does not 11 12 dispute the facts as stated and is irrelevant. Defendants 13 incorporate their reply to DUF 12. 14 testify that he told Aceves that if he could get evidence to 15 convict Plaintiff that he could benefit in his own case, in order 16 to “lure him in.” 17 as to time, is irrelevant to the issue of malice and does not 18 support the allegation of a false claim. Defendant ABBATE did not The trial testimony is objected to as vague Court Ruling: DUF 36 is DISPUTED as phrased to the 19 20 extent of Hutton’s sole motivation. 21 not create an issue of fact that Hutton’s investigation of the 22 alleged embezzlement was not motivated by law enforcement 23 concerns. 24 DUF 37: Plaintiff’s evidence does Defendant Hutton did not submit his report to the 25 prosecuting attorneys of the District Attorney’s Office for any 26 reason other than for them to determine if there was sufficient 30 1 evidence to charge Aceves and Plaintiff with a crime. 2 [Declaration of Merle Wayne Hutton, para. 12]. 3 Plaintiff’s Response: 4 asserted in response to DUF 13. 5 Disputed on the same grounds Defendants’ Reply: Plaintiff’s evidence does not 6 dispute the facts as stated. 7 to DUF Nos. 12 and 16. 8 9 Defendants incorporate their reply Court Ruling: DUF 37 is UNDISPUTED; Plaintiff’s evidence does not create a genuine issue that Hutton submitted 10 his investigative report to the prosecutors for any purpose other 11 than a determination whether there was sufficient evidence to 12 charge Plaintiff with a crime. 13 DUF 38: Defendant Hutton did not harbor any ill will, 14 animosity or malicious intent towards Aceves or Plaintiff, and 15 did not know who Aceves or Plaintiff were prior to Defendant 16 Abbate bringing the embezzlement allegations to the attention of 17 the District Attorney’s Office. 18 Hutton, para. 12]. 19 20 21 [Declaration of Merle Wayne Plaintiff’s Response: Disputed on the same grounds asserted in response to DUF 13. Defendants’ Reply: Plaintiff’s evidence does not 22 dispute the facts as stated and is irrelevant. 23 incorporate their reply to DUF Nos. 12 and 36. 24 Defendants Court Ruling: DUF 38 is UNDISPUTED; Plaintiff’s 25 evidence does not create an issue of fact as to Hutton’s intent 26 in submitting his investigative report to the prosecutors, 31 1 Plaintiff does not dispute that Hutton did not know Plaintiff 2 before the investigation was conducted. 3 DUF 39: Defendant Hutton did not withhold from his report 4 any information he considered pertinent to his investigation, nor 5 did he include any knowingly false information. 6 Merle Wayne Hutton, para. 13]. Plaintiff’s Response: Disputed on the same grounds 7 8 [Declaration of asserted in response to DUF 13. Defendants’ Reply: Plaintiff’s evidence does not 9 10 dispute the facts as stated and is irrelevant. 11 Defendants incorporate their reply to DUF Nos. 12 and 36. Court Ruling: This is a compound statement. 12 DUF 39 is 13 UNDISPUTED in part as Plaintiff’s evidence does not create an 14 issue of fact that Hutton intentionally withheld pertinent 15 information from his report. 16 and overly reliant on Abbate and his work product. 17 evidence Hutton knowingly included false information in his 18 report. 19 DUF 40: His investigation was superficially There is no Defendant Hutton did not manipulate, alter, or in 20 any way change, the Yosemite Chevron business records summary or 21 daily receipts provided by Defendant Abbate, nor did he fabricate 22 any such business records. 23 para. 14]. 24 25 26 [Declaration of Merle Wayne Hutton, Plaintiff’s Response: Disputed on the same grounds asserted in response to DUF 13. Defendants’ Reply: Plaintiff’s evidence does not 32 1 dispute the facts as stated nor is it relevant. 2 Defendants incorporate their reply to DUF Nos. 12 and 36. Court Ruling: DUF 40 is UNDISPUTED; Plaintiff’s 3 4 evidence does not create an issue of fact that Hutton manipulated 5 or altered the Yosemite Chevron business records or fabricated 6 any of these business records. 7 analyze them in depth. 8 9 10 11 12 13 DUF 41: Instead, he failed to obtain and Defendant Hutton did not direct anyone to manipulate, alter, or in any way change, or fabricate these records. [Declaration of Merle Wayne Hutton, para. 14]. Plaintiff’s Response: Disputed on the same grounds asserted in response to DUF 13. Defendants’ Reply: Plaintiff’s evidence does not 14 dispute the facts as stated. 15 to DUF Nos. 12 and 36. 16 Defendants incorporate their reply Court Ruling: DUF 41 is UNDISPUTED; Plaintiff’s 17 evidence does not create an issue of fact that Hutton directed 18 anyone to manipulate or alter the business records, as no such 19 person is identified. 20 DUF 42: The records provided by Defendant Abbate were 21 placed into evidence at the District Attorney’s Office and later 22 transported to Defendant Cassabon. 23 24 Plaintiff’s Response: UNDISPUTED. DUF 43: Defendant Hutton did not provide any direction, 25 instructions or guidance to Defendant Cassabon with respect to 26 these records. [Declaration of Merle Wayne Hutton, para. 15]. 33 Plaintiff’s Response: 1 Disputed. Victor Fung testified 2 in his deposition that the first thing he did after Cassabon’s 3 retention was to meet with Defendant Hutton and the then assigned 4 prosecutor, James Swanson. 5 hour meeting, Fung was told that the prosecution suspected that 6 Fenters was stealing money by voiding transactions. 7 Deposition, p. 18. 8 analyze the pay point reports, a box of which he received on that 9 occasion. Fung Deposition, p. 18. During a one Fung Fung was told the prosecution wanted him to Fung Deposition, p. 20. Fung also received Hutton’s 10 report which had Abbate’s spreadsheet as an attachment. 11 Deposition, pp. 19, 22. 12 spreadsheet prepared by Abbate himself. 13 Fung Fung was told the attachment was a Fung Deposition, p. 22. Defendants’ Reply: Plaintiff misstates facts. 14 Defendant Fung testified only that he was told Plaintiff was 15 suspected of stealing and the means by which she was doing it and 16 that Fung was given instructions with respect to his retention 17 and provided information to analyze the financial records. 18 Court Ruling: DUF 43 is UNDISPUTED in part; Plaintiff’s 19 evidence does not create an issue of fact that Hutton provided 20 any direction, instructions or guidance to Defendant Cassabon 21 with respect to these records, except that Fung should analyze 22 the records. 23 DUF 44: Defendant Hutton did not speak to anybody from 24 Cassabon & Associates with respect to their review or analysis of 25 the records. 26 [Declaration of Merle Wayne Hutton, para. 15]. Plaintiff’s Response: Disputed on the same grounds 34 1 asserted in response to DUF 43. 2 Defendants’ Reply: See reply to DUF 43. 3 Court Ruling: DISPUTED. 4 DUF 45: Hutton at least spoke to Fung. Defendant Hutton was not directed how to conduct 5 his investigation in any manner by Defendant Abbate, or any other 6 members of the Abbate family. 7 Hutton, para. 16]. 8 9 10 Plaintiff’s Reply: [Declaration of Merle Wayne Disputed on the same grounds asserted in response to DUF 34. Defendant’s Reply: Plaintiff’s evidence does not 11 dispute the facts as stated. 12 to DUF No. 34. 13 Defendants incorporate their reply Court Ruling: DUF 45 is UNDISPUTED; Plaintiff’s 14 evidence does not create a material issue of fact that Hutton was 15 directed how to conduct his investigation by Abbate. 16 DUF 46: Defendant Spencer did not give any direction, 17 instructions or guidance to any District Attorney investigators 18 with respect to the investigation of the Yosemite Chevron 19 embezzlement allegations, including, but not limited to, who to 20 interview, reviewing of Yosemite Chevron business records, report 21 preparation, etc. 22 Declaration of Merle Wayne Hutton, para 17. 23 Declaration of Gordon Spencer, para. 9; Plaintiff’s Response: Disputed. Hutton recalls having 24 contact with Spencer, and that it was after the initial meeting 25 with the Abbates. 26 concedes he may have had input in the decision to hire the Hutton Deposition, p. 11. 35 Spencer also 1 Cassabon firm. Spencer Deposition, p. 66. Spencer was also 2 updated about the case by Bacciarini and Hutton on at least one 3 occasion. 4 grounds asserted in response to DUF 27; James Swanson, who was 5 the prosecutor handling the case against Fenters after the 6 preliminary hearing until just before it went to trial, told 7 Fenters’ attorney that he was not permitted to resolve the case 8 via a misdemeanor petty theft plea. 9 Deposition, pp. 32, 35-36. Spencer Deposition, p. 71; disputed also on the same See Virgil Fenters Defendants’ Reply: Defendants incorporate their reply 10 11 to DUF Nos. 27 and 34. 12 misstates facts; that Hutton did not testify that he had contact 13 with Spencer after the initial meeting with the Abbates but 14 testified that he did not have any contact with Spencer prior to 15 the meeting. 16 Spencer testified that it was possible he had input into whether 17 to retain a forensic accounting firm after the preliminary 18 hearing. 19 contact between Spencer and Bacciarini was not a conversation 20 Spencer initiated, that he was in the area of the office where 21 Bacciarini and Hutton worked and there was a short conversation 22 related to the press coverage of the case. 23 Defendants assert that Plaintiff Defendants assert that Plaintiff misstates facts; Defendants assert Plaintiff misstates facts; that the Court Ruling: DUF 46 is UNDISPUTED; Plaintiff’s 24 evidence does not create an issue of fact that Spencer 25 participated in or directed Hutton’s investigation of Abbate’s 26 complaint or that he participated in the decision to bring 36 1 2 criminal charges against her. DUF 47: Decisions such as these were solely within the 3 discretion of the District Attorney investigations unit, 4 including, but not limited to, Defendant Hutton. 5 Gordon Spencer, para. 9]. Plaintiff’s Response: Disputed on the same grounds 6 7 asserted in response to DUF 34. Defendants’ Reply: Plaintiff’s evidence does not 8 9 10 [Declaration of dispute the facts as stated. Defendants incorporate their reply to DUF 34. Court Ruling: DUF 47 is UNDISPUTED; Plaintiff’s 11 12 evidence does not create an issue of material fact that the 13 decision to investigate Abbate’s charges was not within the 14 discretion of the District Attorney’s office, even if the D.A. 15 himself did not get involved in investigations except to refer 16 cases for investigation. 17 DUF 48: Defendant Spencer had no contact with any District 18 Attorney investigators concerning the Yosemite Chevron 19 embezzlement investigation at any time during the investigation 20 or prosecution of Plaintiff. 21 para. 9]. 22 23 24 [Declaration of Gordon Spencer, Plaintiff’s Response: Disputed on the same ground asserted in response to DUF 27, 34 and 46. Defendants’ Reply: Plaintiff’s evidence does not 25 dispute the facts as stated. Defendants incorporate their 26 replies to DUF Nos. 27, 34 and 46. 37 1 Court Ruling: DUF 48 is UNDISPUTED; Plaintiff’s 2 evidence establishes that Spencer’s involvement in the 3 investigation and prosecution of Plaintiff was limited to an 4 introduction of Hutton to Abbate and to attending the initial 5 meeting between Abbate and Hutton. 6 incidental additional contact, which Spencer denies and Hutton 7 does not clearly recall. 8 9 There may have been DUF 49: Defendant Spencer did not give any direction, instructions or guidance to any attorneys from the District 10 Attorney’s Office with respect to the prosecution of Plaintiff, 11 including, but not limited to, decisions whether to prosecute or 12 not prosecute Plaintiff, particular charges to file or any 13 particular resolution of the case. 14 Spencer, para. 10]. 15 16 17 Plaintiff’s Response: [Declaration of Gordon Disputed on the same grounds asserted in response to DUF 27, 34, and 46. Defendants’ Reply: Plaintiff’s evidence does not 18 dispute the facts as stated. 19 replies to DUF 27, 34, and 46. 20 Defendants incorporate their Court Ruling: DUF 49 is UNDISPUTED; Plaintiff’s 21 evidence establishes that Spencer’s involvement in the 22 investigation and prosecution of Plaintiff was limited to an 23 introduction of Hutton to Abbate and to attending the initial 24 meeting between Abbate and Hutton. 25 26 DUF 50: These decisions were solely within the discretion of the deputy district attorneys involved in the prosecution. 38 1 [Declaration of Gordon Spencer, para. 10]. 2 Plaintiff’s Response: 3 asserted in response to DUF 34. Disputed on the same grounds Defendants’ Response: Plaintiff’s evidence does not 4 5 dispute the facts as stated. 6 to DUF 34. 7 Defendants incorporate their reply Court Ruling: DUF 50 is UNDISPUTED; Plaintiff’s 8 evidence does not create an issue of fact that the decision to 9 proceed with the prosecution of Plaintiff was not within the 10 discretion solely exercised by the deputy district attorneys 11 assigned to the prosecution. 12 not have discretion to make such decisions. 13 This does not mean that Spencer did DUF 51: Defendant Spencer had no knowledge that a criminal 14 complaint was filed against Plaintiff until after it had 15 actually been filed. [Declaration of Gordon Spencer, para. 10]. 16 Plaintiff’s Response: 17 asserted in response to DUF 27, 34 and 46. 18 Disputed on the same grounds Defendants’ Response: Plaintiff’s evidence does not 19 dispute the facts as stated. 20 replies to DUF Nos. 27, 34 and 46. 21 Defendants incorporate their Court Ruling: DUF 51 is UNDISPUTED; Plaintiff’s 22 evidence does not raise an issue of fact that Spencer was told or 23 knew that a criminal complaint was going to be filed against 24 Plaintiff until after it was filed. 25 26 DUF 52: Other than his presence at the May 14, 2003, meeting, Defendant Spencer did not initiate any contact with 39 1 Defendant Abbate or Jim Abbate with respect to the criminal 2 investigation and prosecution of Plaintiff during the pendency of 3 both. [Declaration of Gordon Spencer, para. 11]. Plaintiff’s Response: 4 Disputed. Plaintiff saw Abbate, 5 Bacciarini and Spencer having conversations outside of court in 6 connection with her court appearances. 7 32-34. 8 Fenters Deposition, pp. 32-34. 9 present for at least one hearing where Spencer approached him Fenters Deposition, pp. Spencer was also present when the verdict was read. Souza also recalls Spencer being 10 about the case and mentioned that he was friends with the 11 Abbates. 12 chat” with the Abbates about the Fenters case during its 13 pendency. Souza Deposition, pp. 34-38. Spencer also had “chit- Spencer Deposition, p. 63. Defendants’ Reply: Fact established. 14 Plaintiff’s 15 evidence does not dispute the facts as stated nor is it 16 relevant. 17 Fenters Dep., pp. 32-34 - This testimony is objected to 18 on the grounds it calls for speculation. Further, plaintiff 19 misstates facts: Plaintiff testified only that she saw defendant 20 SPENCER, defendant ABBATE and D.A. Bacciarini talking outside of 21 the courtroom on two occasions and she assumed it was in relation 22 to the criminal case. 23 not state that defendant SPENCER was present in court when the 24 verdict was read; she testified only that she saw him sitting in 25 the back of the courtroom at the end of her trial. 26 p. 34:11-12. Fenters Dep., p. 33:15-23. 40 Plaintiff does Fenters Dep., Sousa Dep., pp. 34-38 - Plaintiff misstates facts: Mr. 1 2 Sousa did not testify to any of the facts plaintiff claims he 3 did: he did not testify that defendant SPENCER was present at a 4 hearing and approached him about the case; nor did he testify 5 defendant SPENCER told him he was friends with the Abbates. Spencer Dep., p. 63 - Plaintiff misstates facts: 6 7 Defendant SPENCER testified that he may have had chance meetings 8 with members of the Abbate family and that he does not recall 9 providing any information about the case. 10 Spencer Dep., p. 63:10-20. Court Ruling: DUF 52 is DISPUTED; Plaintiff’s 11 12 evidence does create an issue of fact that Spencer had contact 13 with Defendant Abbate or Jim Abbate with respect to the criminal 14 investigation and prosecution of Plaintiff during the pendency of 15 both, including the trial, whether or not Spencer initiated the 16 contact. 17 DUF 53: Defendant Spencer had no contact with anybody from 18 Cassabon & Associates during the pendency of the criminal 19 investigation and prosecution of Plaintiff. 20 Plaintiff’s Response: UNDISPUTED. 21 DUF 54: Defendant Spencer never saw any Yosemite Chevron 22 business records, or summaries of records, related to the 23 embezzlement investigation and prosecution. 24 Plaintiff’s Response: UNDISPUTED. 25 26 DUF 55: Defendant Spencer never directed or instructed anybody to manipulate, alter or in any way change Yosemite ***** 41 1 Chevron business records or summaries, or to fabricate any 2 such business records. 3 4 Plaintiff’s Response: UNDISPUTED. DUF 56: Defendant Spencer never discussed Yosemite Chevron 5 business records, or summaries of records, with anybody. 6 [Declaration of Gordon Spencer, para. 12]. 7 8 9 Plaintiff’s Response: Disputed on the same grounds asserted in response to DUF 52. Defendants’ Reply: Plaintiff’s evidence does not 10 dispute the facts as stated. 11 34, 46 and 52. 12 See Defendants’ reply to DUF 27, Court Ruling: DUF 56 is UNDISPUTED; Plaintiff’s 13 evidence does not create an issue of fact that Spencer discussed 14 Yosemite Chevron’s business records, or summaries of records, 15 with anybody. 16 DUF 57: Plaintiff was never arrested in relation to 17 the criminal charges for embezzlement brought against her. 18 [Deposition of Tiffany Fenters, p. 28:15-23; p. 63:7-12; 19 Deposition of Bruce Sousa, p.116:16-23]. 20 Plaintiff’s response: Disputed. Plaintiff’s liberty 21 was restricted in connection with her criminal case, since 22 she was ordered to be booked and released at the County Jail. 23 Plaintiff also had to agree as a condition of her official 24 recognizance release to appear at all court hearings, not leave 25 California, waive extradition from another jurisdiction, and 26 subject herself to additional potential criminal penalties. 42 1 Plaintiff also had to provide a fingerprint and enter into a 2 similar agreement to be released on her recognizance after the 3 preliminary hearing. 4 of the Fenters criminal court file. These liberty restrictions 5 are tantamount to an arrest. 6 See Exhibit C, Doc. 188, selected portions Defendants’ Reply: Plaintiff’s evidence does not 7 dispute the facts as stated. 8 hearsay, lacking foundation and vague. 9 Defendants object to Exhibit C as Court Ruling: DUF 57 is DISPUTED; Plaintiff was not 10 physically arrested. 11 required to appear in court to answer the charges. 12 objections are without merit; Exhibit C is a copy of a court 13 record and sets for the state court’s conditions of petitioner’s 14 own recognizance release. 15 Her liberty was restricted and she was Defendants’ DUF 58: Plaintiff’s liberty was never restricted 16 as a result of the charges; she was granted an “Own Recognizance” 17 (“OR”) release requiring her to get permission from the court 18 if she was to leave the state and to make court appearances. 19 [Deposition of Tiffany Fenters, p. 276:12-18; Exhibit “JN-2”, 20 Felony Minutes, Commitment, Certification attached to 21 Defendant COUNTY’s Request for Judicial Notice in Support of 22 Motion for Summary Judgment or Alternatively Summary 23 Adjudication]. 24 25 26 Plaintiff’s Response: Disputed on the same grounds asserted in response to DUF 57. Defendants’ Reply: Plaintiff’s evidence does not 43 1 dispute the facts as stated. 2 Court Ruling: DISPUTED whether Petitioner’s 3 liberty was restricted; UNDISPUTED that she was released on her 4 own recognizance. 5 DUF 59: Neither Defendant Spencer nor Defendant Hutton 6 ever requested that a warrant be issued for Plaintiff’s arrest, 7 or that Plaintiff be arrested or otherwise taken into custody. 8 [Declaration of Gordon Spencer, para. 13; Declaration of Merle 9 Wayne Hutton, para. 18]. 10 Plaintiff’s Response: Disputed. The defendants knew 11 that plaintiff would be required to have her liberty restricted 12 as a result of her being filed with criminal charges, since all 13 of her release conditions were mandated by Penal Code § 1318 by 14 mere virtue of her being charged. 15 16 17 18 19 Defendants’ Reply: Facts established; Plaintiff cites no contrary evidence. Court Ruling: DUF 59 is UNDISPUTED. There is no evidence of such a request by either defendant. DUF 60: Neither Defendant Spencer nor Defendant Hutton 20 ever requested that Plaintiff be booked or processed at the 21 Merced County Jail. [Declaration of Gordon Spencer, para. 13; 22 Declaration of Merle Wayne Hutton, para. 18]. 23 Plaintiff’s Response: 24 asserted in response to DUF 59. 25 26 Disputed on the same grounds Defendants’ Reply: Facts established; Plaintiff cites no contrary evidence. 44 1 2 3 Court Ruling: DUF 60 is UNDISPUTED. There is no evidence of such a request by either defendant. DUF 61: Neither Defendant Spencer nor Defendant Hutton was 4 in any way involved in Plaintiff being fingerprinted, 5 photographed, or otherwise processed at the Merced County Jail. 6 Neither were ever aware of the fact that this had occurred until 7 some months later. 8 Declaration of Merle Wayne Hutton, para. 18]. [Declaration of Gordon Spencer, para. 13; 9 Plaintiff’s Response: 10 asserted in response to DUF 59. 11 12 13 Disputed on the same grounds Defendants’ Reply: Facts established; Plaintiff cites no contrary evidence. Court Ruling: DUF 61 is UNDISPUTED, although each 14 defendant could have anticipated fingerprinting after criminal 15 charges were filed. 16 DUF 62: Neither Defendant Spencer nor Defendant Hutton made 17 any request that Plaintiff be required to post bail or in any way 18 have her liberty restricted in any manner. [Declaration of Gordon 19 Spencer, para. 13; Declaration of Merle Wayne Hutton, para. 18]. 20 21 22 Plaintiff’s Response: Disputed on the same grounds asserted in response to DUF 57. Defendant’s Reply: Plaintiff’s evidence does not 23 dispute the facts as stated. 24 hearsay, lacking foundation and vague. 25 26 Defendants object to Exhibit C as Court Ruling: DUF 62 is UNDISPUTED as to any request by either defendant. 45 1 DUF 63: On June 23, 2003, a criminal complaint charging 2 Plaintiff with one felony count of embezzlement was filed in the 3 Merced County Superior Court (The People of the State of 4 California vs. Tiffany Michelle Fenters, Merced County Superior 5 Court Case No. MF36082). Plaintiff’s Response: UNDISPUTED. 6 7 8 DUF 64: District Attorney Bruce Gilbert. Plaintiff’s Response: UNDISPUTED. 9 10 The complaint was signed and filed by Deputy DUF 65: On July 30, 2004, a preliminary hearing before the 11 Honorable Ronald D. Hansen was held in the Merced County Superior 12 Court with respect to the embezzlement charges filed against 13 plaintiff. 14 15 16 17 18 19 20 21 Plaintiff’s Response: UNDISPUTED. DUF 66: Plaintiff was represented at the preliminary hearing by her attorney, Mr. Bruce Sousa. Plaintiff’s Response: UNDISPUTED. DUF 67: Defendant Abbate and Defendant Hutton were the only witnesses called to testify. Plaintiff’s Response: UNDISPUTED. DUF 68: At the conclusion of the preliminary hearing, Judge 22 Hansen found that there was sufficient evidence to believe 23 plaintiff had committed the crime of embezzlement. 24 25 26 Plaintiff’s Response: UNDISPUTED. DUF 69: Defendant Hutton’s testimony at the preliminary hearing was essentially the same information obtained by 46 1 Defendant Hutton during his investigation as reflected in his 2 report. [Exhibit “JN-3”, Reporter’s Transcript of Preliminary 3 Hearing attached to Defendant COUNTY’s Request for Judicial 4 Notice in Support of Motion for Summary Judgment or Alternatively 5 Summary Adjudication; Declaration of Merle Wayne Hutton, para. 6 19]. 7 Plaintiff’s Response: 8 Disputed on the same grounds asserted in response to DUF 13. Defendants’ Response: Plaintiff’s evidence does not 9 10 dispute the facts as stated. 11 Defendants incorporate their replies to DUF Nos. 12 and 20. Court Ruling: DUF 69 is UNDISPUTED as to the fact 12 13 stated; Plaintiff’s evidence does not create an issue of fact as 14 to Hutton’s testimony at the preliminary hearing, which speaks 15 for itself, or that it mirrored what is set forth in his 16 investigative report. 17 18 19 20 21 22 23 24 25 26 C. FIRST CAUSE OF ACTION FOR VIOLATION OF 42 U.S.C. § 1983. The First Cause of Action pursuant to 42 U.S.C. § 1983 is against all defendants and alleges in pertinent part: 34. The defendants’ intentional and reckless acts, as described above, constitute a deprivation of Tiffany’s ... rights under the Fourth Amendment not to have her liberty restricted without legal basis, to be arrested without probable cause, and not to be prosecuted maliciously without probable cause. With respect to these constitutional violations, as alleged hereinabove, defendants Yosemite Chevron, Abbco, Abbate, Fung, McIlhatton, and Cassabon were acting in 47 joint activity with and/or conspiring with Spencer and Hutton. 1 2 ... 3 36. Merced County’s liability under this cause of action is based on its customs and policies .... 4 5 6 7 Defendants move for summary judgment as to Plaintiff’ claim for violation of Section 1983 on numerous grounds. 1. 8 9 False Arrest/Liberty Restriction Claim. Defendants move for summary judgment on this claim on the 10 grounds that Plaintiff was never “seized” nor was her liberty 11 restricted in any manner; probable cause existed for Plaintiff’s 12 arrest; and neither Defendant Hutton nor Defendant Spencer had 13 anything to do with the decision to bring criminal charges 14 against Plaintiff. a. 15 No Seizure or Restriction of Liberty. 16 Defendants’ refer to evidence that Plaintiff was never 17 arrested in relation to the charges alleged against her and was 18 granted an “own recognizance” status requiring her to make court 19 appearances and to obtain Court approval to leave the state. 20 21 Defendants cite Karam v. City of Burbank, 352 F.3d 1188 (9th Cir.2003). 22 In Karam, misdemeanor charges were brought against Karam for 23 delaying or obstructing a peace officer in the performance of his 24 duties and trespassing. 25 told her that she had to turn herself in or be arrested. 26 appeared at the Burbank Municipal Court and signed an Own- A police officer telephoned Karam and 48 Karam 1 Recognizance Release Agreement (“OR Release”). 2 required Karam to obtain permission from the Court before leaving 3 California, to appear in court three weeks hence and at all other 4 times and places ordered by the Court. 5 were eventually dismissed. 6 alleging that she was seized in violation of the Fourth 7 Amendment. 8 12(b)(6). 9 10 11 12 The OR Release The charges against Karam Karam filed a Section 1983 action, The District Court dismissed this claim under Rule The Ninth Circuit affirmed: We have not addressed the question whether, absent an arrest, a seizure may occur by virtue of restrictions incident to pretrial release. However, even if a seizure under the Fourth Amendment conceivably could occur as a result of some combinations of pretrial release restrictions, no such seizure occurred here. 13 14 15 16 17 18 19 Cases decided by our sister circuits in which they have concluded there was a seizure incident to a pre-trial release have involved conditions significantly more restrictive than those in the present case. See, e.g., Johnson v. City of Cincinnati, 310 F.3d 484, 493 (6th Cir.2002)(‘[I]n each of the cases addressed by our sister circuits, the government not only curtailed the suspect’s right to interstate travel, it also imposed additional restrictions ..., such as obligations to post bond, attend court hearings, and contact pretrial services.’). 20 21 22 23 24 25 26 In the Fifth Circuit’s Evans case, the plaintiff faced an eight-count felony indictment, and ‘was fingerprinted, photographed, forced to sign a personal recognizance bond, and required to report regularly to pretrial services, to obtain permission before leaving the state, and to provide federal officers with financial and identifying information.’ Evans, 168 F.3d at 860. The Fifth Circuit concluded that these conditions curtailed the plaintiff’s liberty to such an extent that a Fourth Amendment 49 1 seizure occurred. 2 The Third Circuit in Gallo determined that the plaintiff, who faced felony arson charges, was seized within the meaning of the Fourth Amendment when he was required to post a $10,000 bond, to attend all court hearings, to contact Pretrial Services on a weekly basis, and was prohibited from traveling outside of Pennsylvania and New Jersey. Gallo, 161 F.3d at 222. The court concluded that the plaintiff was seized because ‘[his] liberty was constrained in multiple ways for an extended period of time.’ Id. at 225. 3 4 5 6 7 Id. at 861. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 The Second Circuit in Murphy concluded that a plaintiff, facing two felony charges, was seized when he was required to make eight court appearances while charges were pending against him, and was ordered not to leave the state of New York. See Murphy, 118 F.3d at 942. The court relied, in part, on Justice Ginsberg’s concurrence in Albright v. Oliver, 510 U.S. 266, 278 ... (1994)(plurality opinion), which noted that: A person facing serious criminal charges is hardly free from the state’s control upon his release for a police officer’s physical grip. He is required to appear in court at the state’s command. He is often subject ... to the condition that he seek formal permission from the court ... before exercising what would otherwise be his unquestioned right to travel outside the jurisdiction. Pending prosecution, his employment prospects may be diminished severely, he may suffer reputational harm, and he will experience the financial and emotional strain of preparing a defense. 24 Id. (emphasis added). 25 The present case does not involve circumstances comparable to those in Evans, Gallo, Murphy, or Albright. Karam was not 26 50 1 2 3 4 5 6 7 8 9 charged with a felony. She was not required to report to anyone. All she had to do was show up for court appearances and obtain permission from the court if she wanted to leave the state. Obtaining such permission, while not burden-free, posed much less of a burden to her that it would to a person charged with a felony. And, with regard to the requirement to appear in court, that was no more burdensome than the promise to appear a motorist makes when issued a traffic citation. See Britton v. Maloney, 196 F.3d 24, 29-30 (1st Cir.1999). In sum, Karam’s OR restrictions were de minimus. No Fourth Amendment seizure occurred. 352 F.3d at 1193-1194. 10 Plaintiff argues that Karam is not controlling because she 11 was charged with a felony and, as the court documents submitted 12 in Plaintiff’s Exhibit C show, the state court ordered Plaintiff 13 to immediately report to be booked and fingerprinted and to 14 thereafter return the booking form to the state court. 15 Plaintiff was released on her own recognizance, she had to agree 16 to appear at all times and places ordered by the Court, comply 17 with the conditions of pretrial release, not to leave the state 18 without Court permission, and agree to waive her right to 19 extradition. 20 21 22 23 24 25 26 Although Plaintiff again relies on Exhibit C. In Bielanski v. County of Kane, 550 F.3d 632, 642-643 (7th Cir.2008), the Seventh Circuit held: [W]e have stated that the Fourth Amendment ‘drops out of the picture following a person’s initial appearance in court.’ Hernandez v. Sheahan, 455 F.3d 772, 777 (7th Cir.2006). The travel restrictions and the meeting with the probation officer were restrictions imposed by a judge once Bielanski appeared in court, and so a Fourth Amendment claim against these defendants 51 cannot stand. In short, Bielanski has failed to allege a seizure (continuing or otherwise) by these defendants and thus has no claim under the Fourth Amendment. 1 2 3 Plaintiff argues that Ninth Circuit authority does not 4 follow that of the Seventh Circuit. Plaintiff cites Fontana v. Haskin, 262 F.3d 871 (9th Cir.2001). In Fontana, the Ninth 5 6 Circuit held that the Fourth Amendment protects a criminal 7 defendant after arrest on the trip to the police station. 8 878. The Ninth Circuit ruled: 9 25 [W]e have held that ‘once a seizure has occurred, it continues throughout the time the arrestee is in the custody of the arresting officers ... Therefore, excessive use of force by a law enforcement officer in the course of transporting an arrestee gives rise to a section 1983 claim based upon a violation of the Fourth Amendment.’ Robins v. Harum,, 773 F.2d 1004, 1010 (9th Cir.1985). In Robins, two criminal defendants were arrested and placed in the rear of a patrol car by a pair of police officers. En route to the jail, one defendant began to argue with one of the officers about whether the defendant should be allowed to smoke in the car. The officers abruptly stopped the car, sprang from the vehicle and started trying to pull the pair from the back seat. A struggle ensued. Spectators gathered and the defendants yelled for the crowd to ‘get some good cops.’ We held that the incident constituted a violation of the Fourth Amendment that could support a section 1983 suit. Id. at 1010. The initial arrests ‘plainly constituted seizures for Fourth Amendment purposes.’ Id. ‘These seizures continued while the Robinses were en route to the sheriff’s department in the custody of the arresting officers.’ Id. These were acts of continuing dominion upon already seized suspects, and this was enough to implicate the Fourth Amendment. 26 Therefore, the Fourth Amendment prohibition 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 52 Id. at 1 2 3 4 5 against unreasonable search and seizure continues to apply after an arrestee is in the custody of the arresting officers. Accord Albright v. Oliver, 510 U.S. 266, 277 ... (1994) (Ginsburg, J., concurring) (seizure continues throughout criminal trial). The trip to the police station is a ‘continuing seizure’ during which the police are obliged to treat their suspects in a reasonable manner. 6 Id. at 879-880. 7 Defendants reply that whether Plaintiff was charged with a 8 felony is not relevant; what is significant are the conditions of 9 Plaintiff’s OR release: 10 11 12 13 14 15 16 17 18 19 The only difference between the conditions in Karam and here are that plaintiff was required by the Court to be fingerprinted and photographed at the Merced County Jail. This is more akin to a procedural requirement than any type of liberty restriction. The plaintiff was not held at the jail, nor did she have to post bail. Plaintiff agrees that she was never arrested; never put in any type of cell; and that her ‘booking’ consisted of about 15 minutes at the jail with her attorney, Bruce Sousa, where they took her fingerprints and photograph ... The plaintiff was free to travel. She did not have to report to any agency other than to appear in court. With the exception of being fingerprinted and photographed ..., the release conditions are identical to those in Karam and therefore de minimus. 20 It continues to be the law that pre-trial release conditions 21 not involving custody, which require presence at future legal 22 proceedings do not qualify as a Constitutional seizure. See Burg 23 v. Gosselin, 591 F.3d 95, 100-101 (2nd Cir.2010), citing Karam. 24 Bielanksi and Karam are controlling; Fontana involved a question 25 of excessive force. Plaintiff’s evidence establishes that the 26 53 1 restrictions on her liberty were imposed by the Court and not the 2 Defendants. 3 determinative of a seizure in violation of the Fourth Amendment. 4 It is the fact of the felony charge with other restrictions that 5 is important. 6 that Defendants Spencer and Hutton had no involvement in the 7 decision to bring formal charges of embezzlement against 8 Plaintiff. 9 of the claim of embezzlement and there is no evidence that he The fact of a felony charge, of itself, is not Further, the record in this action establishes Spencer was not involved at all in the investigation 10 participated in the decision to bring charges. 11 was involved in the investigation, there is no evidence, other 12 than his investigative report, that he had any participation in 13 the decision to file the criminal charges. 14 15 Although Hutton Summary judgment for Defendants Spencer and Hutton on this ground is GRANTED. ii. 16 Probable Cause. 17 Defendants move for summary judgment on the ground that 18 probable cause to believe Plaintiff embezzled money from Yosemite 19 Chevron existed. 20 embezzlement as “the fraudulent appropriation of property by a 21 person to whom it is entrusted.” 22 California Penal Code § 503 defines Probable cause exists when “under the totality of 23 circumstances known to the arresting officers, a prudent person 24 would have concluded that there was a fair probability that [the 25 defendant] had committed a crime.” 26 F.2d 789, 792 (9th Cir.1986). United States v. Smith, 790 “A police officer has probable to 54 1 effect an arrest if ‘at the moment the arrest was made ... the 2 facts and circumstances with [his] knowledge and of which [he] 3 had reasonably trustworthy information were sufficient to warrant 4 a prudent man in believing’ that the suspect had violated a 5 criminal law.” 6 Cir.2001). 7 Orin v. Barclay, 272 F.3d 1207, 1218 (9th Defendants argue that Defendant Hutton gathered sufficient 8 information that would lead a reasonable person to believe 9 Plaintiff had appropriated money from Yosemite Chevron, despite 10 the fact that Plaintiff disputes these allegations and was 11 acquitted at trial. 12 Plaintiff argues that summary judgment is not appropriate 13 because of evidence that Abbate and Hutton took a coerced 14 statement from Aceves in which Abbate mentioned Plaintiff first 15 and suggested her involvement in exchange for substantial penal 16 benefit to Aceves; Abbate offered no reliable financial evidence 17 that showed Plaintiff was responsible for any voids; there was no 18 indication of loss of inventory or revenue; Hutton did not review 19 the financial evidence of Plaintiff’s alleged embezzlement; the 20 District Attorney’s Office did not follow its customary practice 21 of utilizing a forensic accountant or auditor at the 22 investigation stage; and Hutton omitted in his report and 23 preliminary hearing testimony that Aceves was pressured to 24 implicate Plaintiff. 25 26 First of all, as Defendants contend, Defendant Hutton did not identify Plaintiff to Aceves as a possible suspect. 55 Assuming 1 arguendo that Defendant Abbate first mentioned Plaintiff as a 2 possible suspect to Aceves, there is no evidence that Defendant 3 Hutton knew this or was otherwise involved in naming her. 4 undisputed that Defendant Hutton did not know Plaintiff. 5 Defendants refer to the transcript of the interview between 6 Defendants Abbate and Hutton, and Aceves attached as Exhibit 3 to 7 Hutton’s declaration: 8 BA: Alright, listen, my partners and I know you have voided transactions. 9 AA: Right. 10 12 BA: Voiding tr ..., you know charging customers and voiding transactions and wait until the end of the shift and take the money ... 13 AA: Yeah. 14 BA: ... um the last day you were over twenty five you told me as such, um one of the um the problems I have is um you know who else, who else was with you, I don’t know who else was with you and that’s what I’my trying to get to the bottom of this. 11 15 16 17 AA: Right. 18 BA: Alright, that’s my first ... 19 AA: Well, I’m willing to cooperate. 20 21 BA: Who else was with you, that’s, that’s, you know that’s one of the things I, I need cooperation. 22 23 AA: Yeah, I’m willing to cooperation with you mainly because I know I made a big mistake and I’m willing to pay for it. 24 25 BA: I know, what uh, so who else was with you? 26 AA: Um other than me is I know it was 56 It is 1 Tiffany. 2 This evidence negates any inference that Defendant Abbate first 3 named Plaintiff as a suspect to Aceves in exchange for his 4 cooperation or that he was pressured to name Plaintiff. 5 Defendants argue that Plaintiff’s contention that Aceves was 6 coerced into naming Plaintiff as a participant in the 7 embezzlement is negated by the transcript of the interview: 8 WH: Okay, now I’m not gonna say it’s going get you out of anything, right? 9 AA: Right, no I understand. 10 11 12 13 14 15 WH: And I’m not, I want you to understand, I’m not making any promises to you other than I will and will promise you this, that I will make sure the Deputy D.A. knows that yes you were cooperative here and yes you are willing to do that okay, but just you being willing, you still have to do it alright because if you say yeah I’m gonna do it and then you decide not to then you’re basically lying to me again. 16 Defendant Hutton’s statements were made toward the end of the 17 interview after Aceves had described the embezzlement scheme to 18 Defendant Hutton and Abbate, not before. 19 even if Defendant Hutton’s statement can be considered coercion, 20 this information was presented to the prosecuting attorney with 21 Defendant Hutton’s report and video of the Aceves’ confession and 22 also was provided to Plaintiff and her criminal defense attorney, 23 Mr. Sousa, and Judge Hansen at the preliminary hearing. 24 Defendants argue that, As to Plaintiff’s contention that Defendant Abbate did not 25 offer reliable financial information to provide probable cause 26 that Plaintiff had embezzled money from Yosemite Chevron and that 57 1 Defendant Hutton did not scrutinize that financial evidence, 2 Defendants argue that this is an attack on evidence that may have 3 resulted in Plaintiff’s acquittal but is irrelevant to the issue 4 of probable cause. 5 information was presented at the preliminary hearing and, despite 6 argued flaws in the financial evidence, Plaintiff was held to 7 answer. 8 Defendant Abbate testified falsely at the preliminary hearing has 9 no bearing on whether Defendants Hutton or Spencer caused Defendants note that the identical financial Finally, Defendants assert that the contention that 10 criminal charges to be brought against Plaintiff on less than 11 probable cause. 12 Plaintiff’s premise that Hutton should have conducted a 13 better investigation is negated in part by Aceves’ identification 14 of Plaintiff as a participant in the embezzlement scheme. 15 accepted the spreadsheet Abbate provided to describe the loss and 16 Aceves’ identification of Plaintiff as a participant. 17 not, as was allegedly the usual procedure, hire a forensic 18 accountant to analyze the evidence to provide the foundation for 19 the criminal charge. 20 21 iii. Hutton He did Collateral Estoppel. Defendants move for summary judgment as to Plaintiff’s claim 22 that the charge of embezzlement against her was not based on 23 probable cause on the ground that Plaintiff is collaterally 24 estopped to litigate this issue because probable cause was found 25 by the judge at the preliminary hearing. 26 The doctrine of collateral estoppel, or issue preclusion, 58 1 prevents relitigation of the same legal and/or factual issues 2 necessarily considered and determined in a prior legal proceeding 3 between the same parties, or their privies. 4 McCurry, 449 U.S. 90, 94 (1980). 5 doctrine applies to claims brought under 42 U.S.C. § 1983. 6 at 105. 7 question of law and fact in which legal issues predominate. 8 Ayers v. City of Richmond, 895 F.2d 1267, 1270 (9th Cir.1990). 9 State law governs the application of collateral estoppel to 10 issues that were decided in a prior state court proceeding. 11 Allen, id. at 96. 12 See Allen v. The collateral estoppel Id. The availability of collateral estoppel is a mixed See Under California law, collateral estoppel is applied where: 13 (1) the issue sought to be precluded is identical to that which 14 was decided in a prior proceeding; (2) that issue was actually 15 litigated and necessarily decided in that proceeding; (3) there 16 was a final judgment on the merits; and (4) that party against 17 whom collateral estoppel is asserted was a party or in privity 18 with a party to the prior proceedings. 19 Montclair, 73 Cal.App.4th 1138, 1145 (1999). 20 2001 WL 1204113 (C.D.Cal.2001), the District Court held: 21 22 23 24 McCutchen v. City of In Moreno v. Baca, It is now also clear, under California law, that under the right set of circumstances, issues necessarily decided during a preliminary hearing in a criminal case (pursuant to California Penal Code § 871) or on a motion to suppress per California Penal Code § 1538.5 may be precluded from relitigation in a subsequent civil suit .... 25 26 Under California law, a finding in a preliminary hearing of probable cause to hold 59 1 2 3 4 5 6 7 a criminal defendant over for trial is a final judgment on the merits for collateral estoppel purposes; an accused can immediately appeal the probable cause determination by filing a motion to set aside (Cal.Pen.Code § 995) and obtain review of the decision on the motion to set aside by filing a writ (Cal.Pen.Code § 999a). Further, probable cause cannot be litigated further because it provides no defense to an accused at trial ... Thus, issues necessarily determined in that hearing may not be subsequently relitigated. 8 2001 WL 1204113 at *3. 9 F.3d 285, 288-289 (9th Cir.1994), the Ninth Circuit identified 10 factual circumstances that might limit or eliminate collateral 11 estoppel effects of a prior criminal preliminary hearing: (1) 12 where there were facts presented to the judicial officer 13 presiding over the preliminary hearing which were additional to 14 (or different from) those available to the officers at the time 15 they made an arrest; or (2) where tactical considerations 16 prevented a litigant/prior criminal defendant from vigorously 17 pursuing the issue of probable cause during the prior criminal 18 prosecution/preliminary hearing. 19 In McCutchen, the Court of Appeals further held that an exception 20 exists to application of collateral estoppel, 21 22 23 24 25 26 In Haupt v. Dillard, Haupt v. Dillard, 17 Haupt, supra, 17 F.3d at 289. where the plaintiff alleges that the arresting officer lied or fabricated evidence presented at the preliminary hearing ... When the officer misrepresents the nature of the evidence supporting probable cause and that issue is not raised at the preliminary hearing, a finding of probable cause would not bar relitigation of the issue of integrity of the evidence. 73 Cal.App.4th at 1147. See also Awabdy v. City of Adelanto, 368 60 1 2 3 4 5 6 7 8 9 F.3d 1062, 1068 (9th Cir.2004): When an individual has a full and fair opportunity to challenge a probable cause determination during the course of the prior proceedings, he may be barred from relitigating the issue in a subsequent § 1983 claim ... However, collateral estoppel does not apply when the decision to hold a defendant to answer was made on the basis of fabricated evidence presented at the preliminary hearing or as the result of other wrongful conduct by state or local officials. Plaintiff argues that, because of her evidence that Defendants Hutton and Abbate, the only two witnesses at the 10 preliminary hearing, “acted in bad faith in procuring the 11 preliminary hearing determination,” collateral estoppel is 12 inapplicable. 13 As Defendants reply, Plaintiff does not specify the 14 evidentiary support for her claim that evidence against her was 15 fabricated. 16 against her presented at the preliminary hearing was fabricated, 17 i.e., made up. 18 that Plaintiff is critical of here was presented at the 19 preliminary hearing and Defendant Hutton’s testimony at the 20 preliminary hearing was the same information that was reflected 21 in his written investigation report. 22 collaterally estopped to claim that the charge of embezzlement 23 against her was not based on probable cause. 24 for summary judgment on this ground is GRANTED. 25 26 Plaintiff presents no evidence that the evidence The same testimonial and documentary evidence iv. Consequently, Plaintiff is Defendants’ motion Defendants Hutton and Spencer Not Involved In Any Criminal Proceedings Against Plaintiff. 61 1 Defendants move for summary judgment that neither Defendants 2 Hutton or Spencer were involved in the decision to prosecute 3 Plaintiff or the subsequent criminal proceedings, including any 4 efforts that might have been made to restrict her liberty. 5 “A supervisor is only liable for constitutional violations 6 of his subordinates if the supervisor participated in or directed 7 the violations, or knew of the violations and failed to act to 8 prevent them. 9 section 1983.” There is no respondeat superior liability under Taylor v. List, 840 F.2d 1040, 1045 (9th 10 Cir.1989). 11 F.3d 463, 481 n.12 (9th Cir.2007): 12 13 14 15 16 As explained in Blankenhorn v. City of Orange, 485 An officer’s liability under section 1983 is predicated on his ‘integral participation’ in the alleged violation. Chuman v. Wright, 76 F.3d 292, 294-95 (9th Cir.1996). ‘”[I]ntegral participation’ does not require that each officer’s actions themselves rise to the level of a constitutional violation.’ Boyd, 374 F.3d at 780. But it does require some fundamental involvement in the conduct that allegedly caused the violation. See id. 17 As to Defendant Spencer, Plaintiff argues that summary 18 judgment on this ground be denied because of evidence that 19 “Spencer arranged the meeting between his friends the Abbates and 20 the members of his office and thereby necessarily participated in 21 the decision to bypass the ordinary means of recourse to them, 22 i.e., the Merced Police Department;” “Spencer told the Abbates 23 they were in “good hands” with his office even though he had not 24 seen the financial evidence at that point, or even knew the 25 magnitude of the alleged embezzlement;” “Spencer met with defense 26 62 1 counsel and his staff regarding the case against Plaintiff;” 2 “Spencer ‘may have’ had a role in retaining the Cassabon 3 defendants;” and Spencer, an “experienced defendant[],” “must 4 have known that plaintiff, in accordance with law, would be 5 booked and subject to conditions of release, even if she was 6 released on her own recognizance.” 7 As to Defendant Hutton, Plaintiff refers to evidence that 8 “Hutton was the appointed lead investigator and was told an 9 embezzlement case was ‘coming to the office’ even before he knew 10 any of the facts;” “Hutton and Abbate personally investigated the 11 case against the plaintiff;” “Hutton testified at the preliminary 12 hearing;” “Hutton met with the Cassabon defendants and gave them 13 instruction;” “Hutton testified falsely at plaintiff’s trial, 14 claiming he did not review the financial evidence before the 15 preliminary examination because an accountant had already been 16 arranged;” “Hutton wrote the only reports submitted in connection 17 with the plaintiff’s being charged with embezzlement;” and 18 Hutton, an “experienced defendant[],” “must have known that 19 plaintiff, in accordance with law, would be booked and subjected 20 to conditions of release, even if she was released on her own 21 recognizance. 22 Plaintiff argues that, although Defendants Spencer and 23 Hutton did not personally seize Plaintiff and did not serve as 24 the charging Deputy District Attorney with respect to the 25 criminal complaint, direct participation in those events is not 26 required in order to be liable under Section 1983. 63 Plaintiff 1 cites Malley v. Briggs, 475 U.S. 335, 345 n.7 (1986): Petitioner has not pressed the argument that in a case like this the officer should not be liable because the judge’s decision to issue the warrant breaks the causal chain between the application for the warrant and the improvident arrest. It should be clear, however, that the District Court’s ‘no causation’ rationale in this case is inconsistent with out interpretation of § 1983. As we stated in Monroe v. Pape, 365 U.S. 167, 187 ... (1961), § 1983 ‘should be read against the backdrop of tort liability that makes a man responsible for the natural consequences of his actions.’ Since the common law recognized the causal link between the submission of a complaint and an ensuing arrest, we read § 1983 as recognizing the same causal link. 2 3 4 5 6 7 8 9 10 11 Plaintiff also cites Day v. Morgenthau, 909 F.2d 75, 77-78 (2nd 12 Cir.1990): 13 14 15 16 17 18 19 20 21 22 23 Arrests and searches ... ‘are normally police functions, and they do not become prosecutorial functions merely because a prosecutor has chosen to participate.’ Robinson, 821 F.2d at 918; see also Barr, 810 F.2d at 362 (recognizing a ‘meaningful’ distinction ‘between filing the criminal information and procuring an arrest warrant, on the one hand, and executing the arrest warrant, on the other’). The original complaint alleges that Moscow ‘directed’ Murray to arrest Day without a warrant and without probable cause, while all three men were in the same courtroom. Since this allegation suggests that Moscow may have participated in ‘executing the arrest,’ it cannot be found ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. 24 Plaintiff further cites cases holding that a complaining witness 25 who makes knowingly false or reckless statements to procure an 26 arrest and instigate criminal proceedings may be liable. 64 1 Plaintiff cites, inter alia, Morley v. Walker, 175 F.3d 756, 760 2 (9th Cir.1999)(in discussing qualified immunity, “[w]e have held 3 that a plaintiff must make not only a substantial showing of 4 deliberate falsehood or reckless disregard for the truth 5 regarding an officer’s statements in an affidavit for a warrant, 6 but establish that ‘without the dishonestly included or omitted 7 information,’ the warrant would not have issued”). 8 As to Defendant Hutton, Plaintiff contends that the issuance 9 of a criminal complaint under California law does not institute a 10 criminal proceeding, but is simply a basis for conducting a 11 hearing to determine if probable cause exists to hold a person 12 for trial. 13 (1980). 14 Plaintiff cites People v. Case, 105 Cal.App.3d 826 In Case, the defendant raised the argument that an arrest 15 warrant was invalid unless criminal proceedings have been 16 “initiated” by the filing of a complaint in municipal court. 17 argument rested on the assumption that the word “complaint” in 18 the statute authorizing arrest warrants, California Penal Code § 19 813, was the same “complaint” which must be filed with a 20 magistrate to commence a felony prosecution, California Penal 21 Code § 806. 22 defendant’s claim by pointing out the word “complaint” for 23 purposes of issuing an arrest warrant meant the attesting 24 officer’s affidavit, not the accusatory pleading filed with the 25 magistrate in municipal court. 26 method of initiating a criminal proceeding in California is the 105 Cal.App.3d at 830-831. The Case disposed of Case stated that “[t]he only 65 1 filing of an accusatory pleading in the court having trial 2 jurisdiction over the charged offense,” which meant an indictment 3 or information in felony cases. 4 preliminary hearing nor the proceedings before a grand jury 5 amount to the ‘institution of criminal proceedings.’ 6 instead, inquiries into whether there is available sufficient 7 evidence to warrant the institution of criminal proceedings.” 8 Id. at 834. 9 Id. at 833. “Neither the They are, Relying on Case, Plaintiff argues that Defendant Hutton’s 10 “direct involvement in other aspects of the criminal process, 11 including the preliminary examination, is sufficient to render 12 him liable.” 13 In reply, Defendants focus on Plaintiff’s false 14 arrest/liberty restriction claim and argue that it is undisputed 15 that neither Defendant was involved in the decision to prosecute 16 Plaintiff or any efforts to restrict her liberty. 17 argument that these Defendants would have known that her liberty 18 would be restricted by a court even though she was released on 19 her own recognizance is simply speculative argument unsupported 20 by any evidence. 21 Plaintiff’s Plaintiff’s contentions present no basis for imposition of 22 liability upon Defendant Spencer. 23 arranged a meeting between the Abbates and Defendant Hutton, that 24 he told the Abbates that they were in “good hands” with Defendant 25 Hutton, that he met, apparently once, with Plaintiff’s defense 26 attorney at an unspecified time, and that he may have had a role 66 Plaintiff’s evidence that he 1 in retaining Cassabon & Associates as the prosecution’s expert 2 following the conclusion of the preliminary hearing, do not 3 constitute the “integral” involvement in the alleged violation of 4 Plaintiff’s Fourth Amendment right to be free from unlawful 5 arrest/restriction on liberty or criminal charges without 6 probable cause. 7 must have known that her liberty would be restricted 8 notwithstanding her OR status, is merely speculative argument 9 unsupported by any evidence. Plaintiff’s assertion that Defendant Spencer 10 Summary judgment for Defendant Spencer on this ground is 11 GRANTED; there is no evidence that Defendant Spencer was involved 12 in the decision to prosecute Plaintiff or the subsequent criminal 13 proceedings. 14 ground is DENIED; Defendant Hutton was involved in the 15 investigation of the alleged embezzlement and prepared the 16 investigative report for review by the District Attorney’s Office 17 that was the basis for the filing of the criminal charges and the 18 preliminary hearing. 19 Defendant Hutton is granted on the basis of collateral estoppel, 20 see supra, this ruling is immaterial to the resolution of 21 Plaintiff’s claims under the Fourth Amendment. 22 23 b. Summary judgment for Defendant Hutton on this However, because summary judgment for Malicious Prosecution under Section 1983. Defendants move for summary judgment to the extent that 24 Plaintiff’s claim that Defendants prosecuted Plaintiff 25 maliciously without probable cause. 26 In the Ninth Circuit, the general rule is that a claim for 67 1 malicious prosecution is not cognizable under Section 1983 if 2 process is available within the state judicial system to provide 3 a remedy. 4 Cir.1987) (citing Bretz v. Kelman, 562 F.2d 1026, 1031 (9th 5 Cir.1985); Cline v. Brusett, 661 F.2d 108, 112 (9th Cir.1981). 6 However, “an exception exists to the general rule when a 7 malicious prosecution action is conducted with the intent to 8 deprive a person of equal protection of the laws or is otherwise 9 intended to subject a person to a denial of constitutional Usher v. City of Los Angeles, 828 F.2d 556, 562 (9th 10 rights.” 11 for malicious prosecution under Section 1983, a plaintiff must 12 demonstrate not only a deprivation of a constitutionally 13 protected right, but also all of the elements of the tort under 14 state law. 15 claim of malicious prosecution in California, the plaintiff must 16 prove that the underlying prosecution: ‘(1) was commenced by or 17 at the direction of the defendant and was pursued to a legal 18 termination in his, plaintiff’s, favor; (2) was brought without 19 probable cause; and (3) was initiated with malice.’” Conrad v. 20 United States, 447 F.3d 760, 767 (9th Cir.2006). 21 prosecution actions are not limited to suits against prosecutors 22 but may be brought ... against other persons who have wrongfully 23 caused the charges to be filed.” 24 supra, 368 F.3d at 1066. 25 26 Cline, 661 F.2d at 112. In order to prevail on a claim Haupt v. Dillard, supra, 17 F.3d at 289. i. “To prove a “Malicious Awabdy v. City of Adelanto, Initiation of Prosecution. As to Defendant Spencer, Defendants argue that he is 68 1 entitled to summary judgment on the element of initiation of the 2 criminal prosecution. 3 did not make the decision that the District Attorney’s Office 4 investigations unit would conduct an investigation of the 5 embezzlement allegations; he did not participate in or offer 6 direction to any aspect of the investigation; he did not request 7 that criminal charges be brought against Plaintiff, did not 8 participate in the decision to file the charges, and did not give 9 direction to any prosecutors in this regard; did not file the Defendants contend that Defendant Spencer 10 criminal complaint or participate in its filing; did not request 11 a warrant for Plaintiff’s arrest or that she otherwise be taken 12 into custody; and that his sole involvement with the criminal 13 prosecution was to facilitate a meeting between the Abbates and 14 the investigations unit of the District Attorney’s Office. 15 Plaintiff responds that the evidence described above 16 suffices to raise a genuine issue of material fact that Defendant 17 Spencer wrongfully caused the criminal charges to be brought. 18 Summary judgment for Defendant Spencer on this ground is 19 GRANTED. 20 Spencer participated in the initiation of the criminal 21 prosecution. 22 District Attorney’s Office investigator. 23 provided that Defendant Spencer did anything else in connection 24 with the decision to bring charges against Plaintiff. 25 26 Plaintiff’s evidence does not raise an inference that His action was to introduce the Abbates to the There is no evidence As to Defendant Hutton, Defendants refer to evidence that Hutton did not request that criminal charges be filed against 69 1 Plaintiff or participate in any request that criminal charges be 2 brought against her; did not speak to the deputy district 3 attorney who filed the charges, did not participate in drafting 4 the criminal complaint, and did not request that Plaintiff be 5 arrested or otherwise taken into custody. 6 a report based on his investigation and submitted it for review; 7 the report reflected what had been reported to him by Defendant 8 Abbate and recapped the videotaped statement of Aceves. 9 Defendant Hutton wrote As to Defendant Hutton, Defendants argue that he is entitled 10 to a presumption of the prosecutor’s exercise of independent 11 judgment. 12 The Ninth Circuit has long recognized that “[f]iling a 13 criminal complaint immunizes investigating officers ... from 14 damages suffered thereafter because it is presumed that the 15 prosecutor filing the complaint exercised independent judgment in 16 determining that probable cause for an accused’s arrest exists at 17 that time.” 18 Cir.1981)(Smiddy I). 19 (9th Cir.1986)(Smiddy II), the Ninth Circuit held that Smiddy had 20 not overcome this presumption because he produced no evidence 21 “that the district attorney was subjected to unreasonable 22 pressure by the police officers, or that the officers knowingly 23 withheld relevant information with the intent to harm [him], or 24 that the officers knowingly supplied false information.” 25 explained in Newman v. County of Orange, 457 F.3d 991, 994 (9th 26 Cir.2006), cert. denied, 549 U.S. 1253 (2007): Smiddy v. Varney, 665 F.2d 261, 266 (9th In Smiddy v. Varney, 803 F.2d 1469, 1471 70 As 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Our later cases further explained the types of evidence necessary to overcome the presumption. In Borunda v. Richmond, 885 F.2d 1384, 1390 (9th Cir.1988), we affirmed an award of damages that included attorneys’ fees incurred defending against criminal charges of which the plaintiffs were acquitted. The prosecutor based the decision to prosecute solely on the information contained in the officers’ reports, but the plaintiffs highlighted striking omissions in those reports as well as the fact that the officers themselves offered conflicting stories. Id. On the basis of such evidence, ‘[t]he jury was entitled to find ... that [the officers] procured the filing of the criminal complaint by making misrepresentations to the prosecuting attorney.’ Id. .... In Barlow v. Ground, 943 F.2d 1132 (9th Cir.1991), ... we held that a civil rights plaintiff seeking attorneys’ fees had also produced sufficient evidence to overcome the Smiddy presumption. There ... the prosecutor relied solely on the arresting officers’ reports, which omitted critical information ... Further, an independent witness corroborated at least part of the plaintiff’s version of events and the officers’ accounts conflicted .... In contrast, we have stated that a plaintiff’s account of the incident in question, by itself, does not overcome the presumption of independent judgment. Sloman v. Tadlock, 21 F.3d 1462, 1474 (9th Cir.1994). 20 See also Beck v. City of Upland, 527 F.3d 853, 862 (9th 21 Cir.2008)(presumption “may be rebutted if the plaintiff shows 22 that the independence of the prosecutor’s judgment has been 23 compromised”). 24 Plaintiff argues that her evidence of Defendant Hutton’s 25 participation in the investigation suffices to withstand summary 26 71 1 judgment. 2 judgment, Plaintiff refers to evidence that Defendant Hutton 3 “failed to disclose Aceves’ coercion and also acted in bad faith 4 in testifying.” 5 Aceves by Abbate and Hutton negates any inference of coercion by 6 Defendant Hutton. 7 that neither Abbate nor Hutton named Plaintiff as a suspect; 8 Aceves did. 9 asserts that “ample evidence” shows that Hutton “was willfully 10 blind to the weaknesses of the case against plaintiff and also 11 failed to do an independent investigation or scrutinize Abbate’s 12 suspect analysis and reports.”2 13 With regard to the presumption of prosecutorial However, the transcript of the interview of The transcript of the interview establishes This was not at Hutton’s suggestion. Plaintiff also Plaintiff cites no authority that an investigator’s trial 14 testimony is relevant to overcoming the presumption. 15 addition, Plaintiff cites no authority that a an allegedly 16 negligent failure to conduct an independent financial 17 investigation, if revealed to the prosecutor, is even relevant to 18 the presumption. 19 In As Defendants reply, the evidence establishes that all 20 Hutton did was document information provided to him by Abbate and 21 Aceves, information substantiated by documentary proof submitted 22 to the prosecuting attorney. 23 testified falsely at the preliminary hearing; he testified to the There is no evidence that Hutton 24 2 25 26 Plaintiff cites Galbraith v. County of Santa Clara, 307 F.3d 1119, 1126-1227 (9th Cir.2002) and Harris v. Roderick, 126 F.3d 1189, 1198 (9th Cir.1997). Both of these cases involved the sufficiency of pleading, not summary judgment. 72 1 same information contained in his report to the prosecutor. The 2 analysis of the financial information provided by Abbate was the 3 duty of Plaintiff’s criminal defense lawyer and the prosecutor. 4 As Defendants argue: Defendant HUTTON had no involvement in compiling the data and simply passed information on to the prosecutors. The decision in determining whether there was sufficient evidence from the documentation that plaintiff embezzled was made by the prosecutor. Had the prosecutor thought there were insufficient facts to file charges against plaintiff, he could have declined to do so and/or requested additional follow up investigation. Neither occurred ... Defendant HUTTON should not be held to a higher standard than a deputy district attorney in determining whether there was sufficient cause to warrant charges against plaintiff. 5 6 7 8 9 10 11 12 13 It is undisputed that Hutton did not withhold any information in 14 his report or include any false information. He did not 15 manipulate or falsify any Yosemite Chevron business records, 16 never spoke to the deputy district attorney who filed the 17 criminal complaint about his investigation, never requested any 18 specific charges against Plaintiff, and did not have any input, 19 other than his report, in the decision to file charges against 20 Plaintiff. 21 Summary judgment as to Defendant Hutton on this ground is 22 GRANTED. 23 ii. Malicious Motivation. 24 Defendants move for summary judgment on the malice element 25 of the Section 1983 malicious prosecution claim. 26 73 1 As explained in Ayala v. KC Environmental Health, 426 2 F.Supp.2d 1070, 1091 (E.D.Cal.2006), aff’d, 2007 WL 4553473 (9th 3 Cir.2007): Malice means ‘actuated by a wrongful motive, i.e., the party must have had in mind some evil or sinister purpose.’ ... Malice is established when ‘the former suit was commenced in bad faith to vex, annoy or wrong the adverse party.’ ... Malice must be proven against a particular defendant to justify an award of compensatory damages against that defendant ... Malice may be proved by direct evidence or may be inferred from all circumstances in the case ... Malice may, but need no necessarily, be inferred from want of probable cause .... 4 5 6 7 8 9 10 11 Defendants refer to evidence that Spencer did nothing with 12 respect to the investigation or prosecution of the criminal 13 charges except facilitate a meeting between the Abbates and 14 District Attorney’s Office investigators, that he did not harbor 15 any ill-will, animosity or malicious intent against Plaintiff, 16 and did not know who she was. 17 that Hutton did not know the Abbates personally prior to the 18 investigation, did not know Plaintiff, and harbored no ill-will, 19 animosity or malicious intent against Plaintiff. Defendants also refer to evidence 20 Plaintiff responds that there is ample evidence that 21 Defendants Spencer and Hutton failed to act in good faith and 22 submits that malice is a question of intent that can be proved 23 solely by circumstantial evidence. 24 Plaintiff’s evidence does not permit an inference that any 25 actions of Defendant Spencer were motivated by malice against 26 Plaintiff. Defendant Spencer merely facilitated a meeting 74 1 between Defendant Abbate and investigators of the District 2 Attorney’s Office. 3 had any further involvement in the investigation or the decision 4 by the assigned prosecuting attorney to bring charges against 5 Plaintiff. 6 ground is GRANTED. 7 There is no evidence that Defendant Spencer Summary judgment as to Defendant Spencer on this As to Defendant Hutton, Plaintiff’s evidence does not 8 support an inference that he acted with malice against Plaintiff. 9 Hutton did not know Plaintiff and had no prior involvement with 10 Defendants. There is no evidence that Hutton knowingly included 11 fabricated evidence in his investigative report and Plaintiff’s 12 claim that Aceves was coerced by Hutton is factually baseless. 13 Summary judgment for Defendant Hutton on this ground is GRANTED. iii. 14 Probable Cause. 15 See discussion supra. 16 c. 17 18 Absolute Prosecutorial Immunity - Defendant Spencer. Defendant Spencer moves for summary judgment on the ground 19 of absolute prosecutorial immunity. 20 that Spencer had no involvement in the criminal investigation or 21 prosecution against Plaintiff, to the extent Spencer could be 22 considered to have been involved, the evidence is clear that he 23 never took on the role of an investigator or took any actions 24 that would take him outside absolute prosecutorial immunity. 25 26 Although Defendants contend “[T]he actions of a prosecutor are not absolutely immune merely because they are performed by a prosecutor.” 75 Buckley v. 1 Fitzsimmons, 509 U.S. 259, 273 (1993). 2 absolute immunity bears the burden of showing that such immunity 3 is justified for the function in question. Id. at 269. 4 presumption is that qualified rather than absolute immunity is 5 sufficient to protect government officials in the exercise of 6 their duties.” 7 The official seeking “The Burns v. Reed, 500 U.S. 478, 486-487 (1991). Prosecutorial immunity protects eligible government 8 officials who perform functions “intimately associated with the 9 judicial phase of the criminal process.” Imbler v. Pachtman, 424 10 U.S. 409, 430 (1976). 11 the genuinely wronged [plaintiff] without civil redress against a 12 prosecutor whose malicious or dishonest action deprives him of 13 liberty." 14 Acts undertaken by a prosecutor “in preparing for the initiation 15 of judicial proceedings or for trial, and which occur in the 16 course of his role as an advocate for the State,” are entitled to 17 the protection of absolute immunity. 18 U.S. 1128, 126 (1997). 19 performing prosecutorial acts plays no role in the immunity 20 inquiry.” 21 “Such immunity applies even if it leaves Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986). Kalina v. Fletcher, 522 “The intent of the prosecutor when McCarthy v. Mayo, 827 F.2d 1310, 1315 (9th Cir.1987). In Burns v. Reed, supra, the Supreme Court held that 22 absolute immunity applied to a prosecutor’s “appearance in court 23 in support of an application for a search warrant and the 24 presentation of evidence at that hearing. 25 Supreme Court reasoned that “appearing before a judge and 26 presenting evidence in support of a motion for a search warrant 76 500 U.S. at 492. The 1 clearly involve the prosecutor’s role as an advocate for the 2 State, rather than his role as an administrator or investigative 3 officer.” 4 liability based on the plaintiff’s allegations that he had 5 elicited false testimony during the hearing. 6 Supreme Court refused to grant absolute immunity for the 7 prosecutor’s act of providing legal advice to the police. 8 496. 9 advice is related to a prosecutor’s role in screening cases for 10 Id. at 491. The prosecutor was thus immune from Id. at 482. The Id. at The Supreme Court rejected the argument that giving legal prosecution: That argument ... proves too much. Almost any action by a prosecutor, including his or her direct participation in purely investigative activity, could be said to be in some way related to the ultimate decision whether to prosecute, but we have never indicated that absolute immunity is that expansive. Rather, as in Imbler, we inquire whether the prosecutor’s actions are closely associated with the judicial process. 11 12 13 14 15 16 In Buckley v. Fitzsimmons, supra, the Supreme Court denied 17 absolute immunity to prosecutors who were sued for fabricating 18 evidence “during the early stages of the investigation” where 19 “police officers and assistant prosecutors were performing 20 essentially the same investigative function.” 509 U.S. at 262- 21 263. The Supreme Court reasoned: 22 23 24 25 26 There is a difference between the advocate’s role in evaluating evidence and interviewing witnesses as he prepares for trial, on the one hand, and the detective’s role in searching for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested, on the other hand. When a prosecutor performs the 77 investigative functions normally performed by a detective or police officer, it is ‘neither appropriate nor justifiable that, for the same act, immunity should protect the one but not the other.’ 1 2 3 4 Id. at 273. 5 is, nor should consider himself to be, an advocate before he has 6 probable cause to have anyone arrested.” 7 The Supreme Court ruled that “[a] prosecutor neither Id. at 274. In Kalina v. Fletcher, supra, the Supreme Court denied 8 absolute prosecutorial immunity to a prosecutor who filed the 9 equivalent of an affidavit in support of a motion for an arrest 10 warrant. The prosecutor had filed an information charging 11 burglary, a motion for an arrest warrant, and a “Certification 12 for Determination of Probable Cause.” 13 reasoned: The Supreme Court [P]etitioner’s activities in connection with the preparation and filing of two of the three charging documents - the information and the motion for an arrest warrant - are protected by absolute immunity. Indeed, except for her act in personally attesting to the truth of the averments in the certification, it seems equally clear that the preparation and filing of the third document in the package was part of the advocate’s function as well. 14 15 16 17 18 19 20 Id. at 129. However, in personally attesting, “petitioner 21 performed an act that any competent witness might have 22 performed,’ and was thus not entitled to absolute immunity. 23 at 129-130. 24 required ‘Oath or affirmation’ is a lawyer, the only function 25 that she performs in giving sworn testimony is that of a 26 witness.” Id. “Even when the person who makes the constitutionally Id. at 131. 78 1 2 Plaintiff argues that Defendant Spencer is not entitled to summary judgment on this ground: It is undisputed that the District Attorney’s Office bypassed the law enforcement agency with primary jurisdiction, the Merced Police Department, and did all of the investigation itself. The evidence is further undisputed that Spencer was involved in the original investigative meeting and consulted with his staff members during the investigation stage and further participated in the decision to retain the Cassabon firm. Furthermore, Spencer acted as the supervisor of his office during the investigation stage and the evidence shows he specifically placed the Abbates in Hutton’s ‘good hands.’ 3 4 5 6 7 8 9 10 Plaintiff asserts that Spencer is being sued for his 11 investigative acts, “both direct and supervisorial.” As 12 explained in Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th 13 Cir.1991): 14 15 16 17 18 19 20 Supervisor liability is imposed against a supervisory official in his individual capacity for his ‘own culpable action or inaction in the training, supervision, or control of his subordinates,’ ...; for his ‘”acquiesce[nce] in the constitutional deprivations of which [the] complaint is made,”’ ...; or for conduct that showed a ‘”reckless or callous indifference to the rights of others.”’ .... As Defendants reply, there is no admissible, factual support 21 for Plaintiff’s contention that “the District Attorney’s Office 22 bypassed the law enforcement agency with primary jurisdiction, 23 i.e., the Merced Police Department” and instead handled the 24 investigation itself. 25 Police Department had “primary jurisdiction” over a claim of 26 embezzlement, nor is there any evidence that it was uncommon for There is no evidence that the Merced 79 1 the District Attorney’s Office to be the primary investigative 2 agency for financial crimes in the City and/or County of Merced. 3 Plaintiff’s reliance on Hutton’s deposition testimony is 4 misplaced because Hutton did not so testify at the cited portion 5 of his deposition. 6 although Defendant Abbate could have complained of the suspected 7 embezzlement to the City of Merced Police Department, that does 8 not mean it was outside “normal procedure” for the District 9 Attorney’s Office to handle such an investigation when it Plaintiff’s contention is irrelevant because, 10 received the initial complaint. 11 City of Merced Police Officer, Marty Clair, referred Jim Abbate 12 to the District Attorney’s Office, rather than to the City of 13 Merced Police Department. 14 email to the District Attorney’s Office is hearsay, there is no 15 evidence who responded to the email, and the email was sent three 16 years after the investigation leading to the filing of criminal 17 charges against Plaintiff. 18 19 There is evidence that a former The response to Mr. Little’s 2006 Further, Defendant Spencer testified: BY MR. LITTLE: [¶] Q. Back in 2003, was the Merced County District Attorney’s Office the primary investigating agency regarding any other embezzlement matter? 20 ... 21 22 23 24 25 26 THE WITNESS: We have a long history of investigating embezzlement cases. That specific time frame, were we investigating a case at that moment, I can’t tell you. BY MR. LITTLE: [¶] Q. When you first heard this information from Jim Abbate, as you already described, did you consider this to be a theft case or an embezzlement case or you didn’t know? 80 1 A. It sounded like it was theft by an employee. That was the description. 2 3 Q. Back in 2003, did the Merced D.A.’s office serve as the primary investigating agency in any employee theft cases? 4 ... 5 6 7 THE WITNESS: We have - I believe I’ve answered that. We have a long history of investigating cases involving that type of crime. 11 BY MR. LITTLE: [¶] Was it the same - and I just want to be clear. So if a business owner came to the Merced D.A.’s office in 2003 with a complaint of theft by an employee, that’s something that your office would take on as the primary investigating agency? 12 ... 13 THE WITNESS: We had done that and we did do it. 8 9 10 14 16 BY MR. LITTLE: [¶] Q. Can you give me an average per year of how many employee theft cases the D.A.’s office was involved in as the primary investigating agency? 17 MR. ARENDT: For what period of time? 18 BY MR. LITTLE: [¶] Q. your tenure. 15 The last five years of 19 A. No. 20 25 Q. Can you tell me about any specific cases where the Merced D.A.’s office was the primary investigating agency in the last five years of your tenure other than this one? And I just want to make sure. Operating under an assumption - I just want to make sure I’m not loading my question. [¶] Do you agree that your office was the primary investigating agency regarding the claim that Ms. Fenters stole from Yosemite Chevron? 26 A. 21 22 23 24 Yes. You want examples? 81 Do you want a 1 couple of examples? 2 Q. 3 A. There was an embezzlement from a dress shop and that person to my knowledge had no contact at all with the district attorney’s office, approached an investigator and investigation was launched. And, frankly, I didn’t want to do that investigation, but because the daughter of that woman went to school with my son, same grade, same class, but we did it. Another case involving - 4 5 6 7 8 9 Any one. Q. Okay. So in that case, the alleged victim, her son, went to school with your son? 10 A. No. The alleged responsible. 11 Q. Do you remember the last name of the defendant in that case? 12 A. I remember but not right at this moment. 13 15 Q. Well, if it pops into your head at any time during today’s deposition or even when you’re reviewing the transcript or at any time, you can either tell me or - 16 A. 17 Q. Make a notation in the transcript or tell Mr. Arendt, okay? 14 Okay. 18 19 A. Mr. Hutton worked on that case too. may remember the name. 20 Q. Laudate? 21 A. That’s the name. 22 Q. L-a-d-o-t-t-i? 23 A. I have no idea. 24 Q. Can you tell me about any other specific incidents in the last five years where the D.A.’s office has served as the primary investigating agency in a case involving allegations of employee theft? 25 26 82 He 1 A. Theft from a cattle auction company. 2 Q. Okay. 3 A. Theft from the county, theft from the Sheriff’s office at the county. I know there are others. None come to mind at the moment, but there are plenty. 4 5 [Spencer Depo., 34:17-38:6] Spencer’s deposition testimony does 6 not support Plaintiff’s contention that Spencer could only 7 provide two examples of employee embezzlement cases, other than 8 plaintiff’s, where the District Attorney’s Office investigated in 9 the last five years of Spencer’s tenure as District Attorney. 10 Spencer asked Mr. Little if he wanted a couple of examples, and 11 Mr. Little responded “any one.” 12 As to Plaintiff’s contention that Defendant Spencer was 13 involved in the investigation of the Yosemite Chevron employee 14 embezzlement complaint, the evidence is that Spencer’s only 15 involvement in the investigation was to introduce Hutton, and 16 Chief Murphy to the Abbates at the May 14, 2003 meeting. 17 Although Plaintiff disputes this evidence, contending that, 18 because Spencer might have been at this meeting for a longer 19 period of time than initially recalled, there would have been no 20 reason to remain at the meeting if this was his only purpose, 21 Plaintiff presents no evidence that Spencer had any involvement 22 in the investigation other than facilitating the May 14, 2003 23 meeting and perhaps sitting in during some portion of that 24 meeting. Plaintiff’s assertion that Defendant Hutton testified 25 at his deposition that Hutton recalls having contact with Spencer 26 83 1 after the initial May 14, 2003 meeting with Hutton, Murphy and 2 the Abbates is not substantiated by the cited portion of Hutton’s 3 deposition: 5 BY MR. LITTLE: [¶] Q. Do you know whether or not you spoke with Gordon Spencer prior to this May 14th meeting? 6 MR. ARENDT: With respect to? 7 BY MR. LITTLE: [¶] Q. 8 A. Correctly answered, it would be yes, I know, but I did not speak with him prior to. 4 This matter. 9 [Hutton Depo. 11:16-22] Plaintiff’s contention that Spencer had 10 input in the decision to retain Cassabon & Associates after the 11 preliminary hearing is not evidence that Spencer participated in 12 the investigation leading to the filing of criminal charges 13 against Plaintiff. Defendant Spencer testified at his 14 deposition: 15 17 BY MR. LITTLE: [¶] Q. Now, did you have any input in whether or not to retain a forensic accounting firm after the preliminary hearing? 18 A. You know, that’s entirely possible. 19 Q. Why do you say that? 20 A. Because, you know, there was a practice, I suppose, is that if they want to hire somebody, they say, hey, we want to hire somebody for this, and I’d say okay. 16 21 22 23 24 Q. And you would typically have to approve the disbursement of funds for that purpose? A. I don’t actually know if I had to actually approve it, but I usually got asked. 25 26 Q. Do you have a belief one way or the other whether that was the situation here? 84 1 2 3 A. If there was a firm that was hired, somebody probably asked me if they could hire a firm. Q. You don’t recall any specific conversation in that regard, however? 4 A. No. 5 [Spencer Depo.66:7-67:2] 6 As to Plaintiff’s contention that Defendant Spencer was 7 involved in the investigation of the criminal case against 8 Plaintiff because of Spencer’s deposition testimony that Spencer 9 was updated about the case by Deputy District Attorney Bacciarini 10 and Defendant Hutton on at least one occasion, Defendant Spencer 11 testified, in the context of Mr. Little’s questions whether an 12 attempt was made by the District Attorney’s Office to obtain a 13 statement from Plaintiff: 14 17 Q. You believed that you knew during the pendency of this case - by that, I’m talking about what you just testified to, you believe there was some effort to contact her to set up an interview first directly and then by the Police Chief of Gustine? 18 ... 19 20 THE WITNESS: I believe that - frankly believe I learned of that after this lawsuit was filed. 21 BY MR. LITTLE: [¶] Q. 22 A. Hutton and Bacciarini, one or the other or both. 15 16 From who? 23 24 Q. Have you had any conversations with Mr. Hutton and/or Mr. Bacciarini outside the presence of counsel in this case? 25 26 A. I think I had a brief conversation with one or both of them. 85 1 Q. What do you recall – 2 A. Well - 3 Q. - about those conversations? 4 A. During the period of time when I was working on another case, I was down in the investigator’s office when [sic] Mr. Bacciarini and Mr. Hutton worked, and I think there was a conversation, very short conversation because it was done and over. I think it was related to the press coverage of the matter. 5 6 7 8 Q. Do you recall any specifics? 9 10 11 12 13 A. I think I asked or we discussed if we had tried to contact her to get her version of the case, and I was told that those efforts had been made. Q. And the time frame that I’m assuming you’re talking about in your previous answer was contacting her before the filing of charges. 14 ... 15 A. That’s what I understood. 16 [Spencer Depo. 70:6-71:18] 17 As to Plaintiff’s contention that there is circumstantial 18 evidence that Defendant Spencer intended to prosecute Plaintiff 19 for embezzlement from Yosemite Chevron regardless of the facts, 20 Defendants refer to Defendant Hutton’s deposition testimony 21 relied upon by Plaintiff: 22 23 24 25 26 Q. How did you learn anything about this matter? What was your source of information? A. Initially, my chief investigator Dan Murphy told me that there was an embezzlement case that was coming to our office, asked me to sit in on a meeting, and like I said, I don’t recall if that was the day before. It 86 1 could have been within a couple of days or that morning. 2 3 Q. To the best of your recollection, what information did you receive from Mr. Murphy regarding the alleged embezzlement case? 4 5 6 7 A. That a couple of employees from Yosemite Chevron were alleged to have embezzled funds and that - I believe at that time I was told that both employees were no longer with the company. I either learned that from Dan prior to or at the meeting, and that was really about it. 8 9 Q. Okay. When you first were contacted by Mr. Murphy, did he tell you what his source of information was? 10 13 A. Initially, I don’t know. I know that Gordon had brought - Gordon Spencer had brought the information to Dan, but I don’t know if Dan told me that initially or subsequent to our - or when we met with Robert Abbate on that morning of May 14th. 14 ... 15 16 Q. Did you become aware at any time prior to the preliminary hearing that Mr. Spencer had some familiarity with the Abbate family? 17 ... 18 21 THE WITNESS: From my recollection of the May 14th meeting, the Abbates had gone to Mr. Spencer with their allegation, and then he had asked Chief Investigator Murphy to set up a meeting. So there was an assumption on my part that Gordon knew them somehow because they went to him instead of directly to us. 22 ... 23 Q. Did Mr. Spencer ever provide you with any information that corroborated that suspicion of yours? 11 12 19 20 24 25 26 A. I believe his purpose in being at the May meeting was to introduce people, but other than making the introductions, I don’t know 87 1 2 what his relationship is with the Abbates. don’t think a discussion of their relationship with him was part of that meeting. I 3 4 5 Q. At any point during the pendency of this case, did Mr. Spencer provide you with information indicating that he was familiar with the Abbate family before they approached him to set up this meeting? 6 ... 7 8 THE WITNESS: Other than that May 14th meeting, I never spoke to Mr. Spencer about this investigation. 9 [Hutton Depo. 8:2-9:1, 35:18-36:23]. There is also Defendant 10 Spencer’s deposition testimony, relied upon by Plaintiff: 11 12 Q. In the instances where you say, okay, we’ll set up a meeting, do you always attend those meetings or at least a part of it? 13 A. More often than not. 14 15 Q. But sometimes when people come to you with complaints of alleged criminal activity, you tell them just to write it down? 16 17 18 19 20 21 22 23 A. Well, if it’s a - yeah. You wouldn’t tell somebody to write down an embezzlement thing. It would be a book. You wouldn’t do that. Q. But when you were first told about this, you wouldn’t know whether it was an embezzlement or a theft, correct? A. I consider thefts by employees from employers embezzlement. That’s just generically what I think about. Q. But you didn’t know if it was small in magnitude or great? 24 ... 25 26 THE WITNESS: I knew that it would be easier explained and talked about and questioned in 88 1 a meeting rather then write. 2 4 Q. But the answer to my question was yes, when you first heard about this from Jim, whether that initial conversation was in person or on the phone, you didn’t know at that point what the alleged magnitude was? 5 ... 6 THE WITNESS: Whenever the allegation is embezzlement, it’s better spoken about in person. 3 7 8 [Spencer Depo. 52:5-53:10]. Defendants also refer to Spencer’s 9 deposition testimony, relied upon by Plaintiff: 11 Q. Now, did you provide any input during that meeting that was attended by Jim and Bob Abbate and Mr. Hutton and yourself? 12 MR. ARENDT: Vague. 13 BY MR. LITTLE: [¶] Q. Well, did you say anything during that meeting? 10 14 A. I’m sure I did. 15 16 17 18 Q. Do you recall anything in particular that you said? A. Well, it was listening to what they said and excusing myself when I left. And I might have said something, you guys are in good hands. 19 [Spencer Depo. 54:10-22]. 20 As to Plaintiff’s reliance on the deposition testimony of 21 Virgil Fenters that James Swanson, the Deputy District Attorney 22 handling the case against Plaintiff after the preliminary hearing 23 until just before it went to trial, allegedly told Plaintiff’s 24 criminal defense attorney, Mr. Sousa, that he, Mr. Swanson, was 25 not permitted to resolve the case via a misdemeanor petty theft 26 89 1 plea, this testimony is inadmissible as hearsay and for lack of 2 foundation. 3 bargaining is clearly a prosecutorial action entitled to absolute 4 immunity. 5 that he had no information that Defendant Spencer had any 6 involvement with respect to this conversation. 7 8 9 Even if admissible, a decision regarding plea Finally, Virgil Fenters admitted in his deposition Summary judgment for Defendant Spencer on the ground of absolute prosecutorial immunity is GRANTED. d. Qualified Immunity. 10 Defendants move for summary judgment on the ground that 11 Defendants Spencer and Hutton are entitled to qualified immunity 12 from liability for damages under Section 1983. 13 judgment for Defendant Spencer is granted on the ground of 14 absolute prosecutorial immunity, it is only necessary to address 15 qualified immunity as to Defendant Hutton. 16 Because summary Qualified immunity serves to shield government officials 17 “from liability for civil damages insofar as their conduct does 18 not violate clearly established statutory or constitutional 19 rights of which a reasonable person would have known.” 20 Fitzgerald, 457 U.S. 800, 818 (1982). 21 ___ U.S. ___, 129 S. Ct. 808 (2009), the Supreme Court summarized 22 the purpose of qualified immunity: 23 24 25 26 In Pearson v. Callahan, Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. The protection of qualified 90 Harlow v. immunity applies regardless of whether the government official's error is “a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Groh v. Ramirez, 540 U.S. 551 (2004) (Kennedy, J., dissenting) (citing Butz v. Economou, 438 U.S. 478, 507 (1978) (noting that qualified immunity covers “mere mistakes in judgment, whether the mistake is one of fact or one of law”)). 1 2 3 4 5 6 15 Because qualified immunity is “an immunity from suit rather than a mere defense to liability ... it is effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis deleted). Indeed, we have made clear that the “driving force” behind creation of the qualified immunity doctrine was a desire to ensure that “‘insubstantial claims’ against government officials [will] be resolved prior to discovery.” Anderson v. Creighton, 483 U.S. 635, 640, n. 2 (1987). Accordingly, “we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam). 16 Deciding qualified immunity normally entails a two-step analysis. 17 Saucier v. Katz, 533 U.S. 194, 201 (2001). 18 light most favorable to the party asserting the injury, do the 19 facts alleged show the officers’ conduct violated a 20 constitutional right?” 21 (2001). 22 a constitutional right, the inquiry is over and the officer is 23 entitled to qualified immunity. 24 that the conduct did violate a constitutional right, Saucier’s 25 second prong requires the court to determine whether, at the time 26 of the violation, the constitutional right was “clearly 7 8 9 10 11 12 13 14 First, “taken in the Saucier v. Katz, 533 U.S. 194, 201 If the court determines that the conduct did not violate However, if the court determines 91 1 established.” Id. “The relevant, dispositive inquiry in 2 determining whether a right is clearly established is whether it 3 would be clear to a reasonable officer that his conduct was 4 unlawful in the situation he confronted.” 5 inquiry is wholly objective and is undertaken in light of the 6 specific factual circumstances of the case. 7 if the violated right is clearly established, Saucier recognized 8 that, in certain situations, it may be difficult for a police 9 officer to determine how to apply the relevant legal doctrine to Id. at 202. This Id. at 201. Even 10 the particular circumstances he faces. 11 mistake in applying the relevant legal doctrine, he is not 12 precluded from claiming qualified immunity so long as the mistake 13 is reasonable. 14 requires is reasonable, ... the officer is entitled to the 15 immunity defense.” 16 ruled that “while the sequence set forth [in Saucier] is often 17 appropriate, it should no longer be regarded as mandatory.” 18 Pearson, id. at 818. 19 courts of appeal should be permitted to exercise their sound 20 discretion in deciding which of the two prongs of the qualified 21 immunity analysis should be addressed first in light of the 22 circumstances in the particular case at hand.” 23 v. Haugan, 543 U.S. 194 (2004), the Supreme Court reiterated: 24 25 26 If an officer makes a If “the officer’s mistake as to what the law Id. at 205. In Pearson, the Supreme Court “The judges of the district courts and the Id. In Brosseau Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted. Saucier v. 92 1 2 3 4 5 6 Katz, 533 U.S., at 206 (qualified immunity operates ‘to protect officers from the sometimes “hazy border between excessive and acceptable force”’). Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct. If the law at that time did not clearly establish that the officer’s conduct would violate the Constitution, the officer should not be subject to liability or, indeed, even the burdens of litigation. 7 8 9 It is important to emphasize that this inquiry ‘must be undertaken in light of the specific context of the case, not as a broad general proposition.’ Id., at 201. As we previously said in this very context: 10 11 12 13 14 15 16 17 18 19 20 21 22 ‘[T]here is no doubt that Graham v. Connor, supra, clearly establishes the general proposition that use of force is contrary to the Fourth Amendment if it is excessive under objective standards of reasonableness. Yet, that is not enough. Rather, we emphasized in Anderson [v. Creighton] “that the right the official is alleged to have violated must have been ‘clearly established’ in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable officer would understand that what he is doing violates that right.’ ... The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’ ... 23 24 25 26 The Court of Appeals acknowledged this statement of law, but then proceeded to find fair warning in the general tests set out in Graham and Garner ... In so doing, it was mistaken. Graham and Garner, following the lead of the Fourth Amendment’s text, are cast 93 1 2 3 4 at a high level of generality. See Graham v. Connor, supra, at 396 (‘”[T]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application”’). Of course, in an obvious case, these standards can ‘clearly establish’ the answer, even without a body of relevant case law.’ 5 543 U.S. at 198-199. However, as explained in Wilkins v. City of 6 Oakland, 350 F.3d 949, 956 (9th Cir.2003), cert. denied sub nom. 7 Scarrot v. Wilkins, 543 U.S. 811 (2004): 8 9 10 11 12 13 14 15 Where the officers’ entitlement to qualified immunity depends on the resolution of disputed issues of fact in their favor, and against the non-moving party, summary judgment is not appropriate. See Saucier, 533 U.S. at 216 ... (Ginsberg, J., concurring)(‘Of course, if an excessive force claim turns on which of two conflicting stories best captures what happened on the street, Graham will not permit summary judgment in favor of the defendant official.’). Even if summary judgment is denied on the ground that 16 neither Defendants Spencer or Hutton violated Plaintiff’s 17 constitutional rights as alleged, based upon the information 18 presented to Defendant Hutton by Defendant Abbate and Aceves, a 19 reasonable investigator would conclude there was probable cause 20 to believe Plaintiff embezzled funds from Yosemite Chevron. 21 Probable cause to arrest exists if, “under the totality of 22 the circumstances known to the arresting officers, a prudent 23 person would have concluded that there was a fair probability 24 that [the plaintiff] had committed a crime. 25 Lewiston, 354 F.2d 1058, 1065 (9th Cir.2004). 26 where an officer is claiming qualified immunity for a false 94 Beier v. City of The proper inquiry 1 arrest claim is “whether a reasonable officer could have believed 2 that probable cause existed to arrest the plaintiff.” 3 v. Fox, 312 F.3d 423, 437 (9th Cir.2002). 4 does not depend on whether probable cause actually existed. 5 Franklin Qualified immunity Plaintiff argues that summary judgment on the ground of 6 qualified immunity should be denied: “[T]he record is replete 7 with evidence that these defendants disregarded the lack of proof 8 and acted in bad faith in bypassing the Merced Police Department 9 and instead performing [sic] a result oriented investigation that 10 ended with plaintiff’s being charged with embezzlement.” 11 Plaintiff presents no evidence that Hutton knew of any 12 alleged coercion by Abbate of Aceves to get Aceves to implicate 13 Plaintiff. 14 Hutton demonstrates no coercion; Aceves testified in his 15 deposition that he was not coerced and that he first initiated 16 mention of Plaintiff to Abbate. 17 could be inferred that Defendant Hutton relied solely on the 18 financial evidence prepared by Abbate and did not conduct an 19 independent investigative report. 20 report was ruled inadmissible at the preliminary hearing; 21 nonetheless, the state court nonetheless found probable cause to 22 hold Plaintiff to answer. 23 24 25 26 The tape of the interview of Aceves by Abbate and There is evidence from which it However, Abbate’s financial Summary judgment as to Defendant Hutton on the ground of qualified immunity is GRANTED. 4. CONSPIRACY. Defendants move for summary judgment to the extent Plaintiff 95 1 claims that Defendants Spencer and Hutton conspired with the 2 Abbate Defendants and the Cassabon Defendants to violate 3 Plaintiff’s constitutional rights. To prove a conspiracy, Plaintiff must show “an agreement or 4 5 ‘meeting of the minds’ to violate constitutional rights.” 6 Franklin v. Fox, supra, 312 F.3d at 441. 7 not need to know the plan; sharing the common purpose of the 8 conspiracy is sufficient. 9 liable if he conspired with a state actor. Id. Each individual does A private individual may be Id. 10 “The defendants must have, by some concerted action, 11 intended to accomplish some unlawful objective for the purpose of 12 harming another which results in damage.” 13 v. Mendocino County, 192 F.3d 1283, 1301 (9th Cir.1999). This 14 agreement or meeting of the minds may be inferred on the basis of 15 circumstantial evidence, such as the actions of the defendants. 16 Id. 17 to have been undertaken without an agreement’ may support the 18 inference of a conspiracy. 19 “required to produce ‘concrete evidence’ of an agreement or 20 ‘meeting of the minds” between Defendants Spencer and Hutton and 21 the Abbate and Cassabon Defendants to violate Plaintiff’s 22 constitutional rights. 23 772, 782 (9th Cir.), cert. denied, 534 U.S. 1020 (2001). Mendocino Envtl. Ctr. A showing that defendants committed acts that ‘are unlikely Id. Nonetheless, Plaintiff is Radcliffe v. Rainbow Const. Co., 254 F.3d 24 Defendants argue that Plaintiff has not provided evidence 25 from which it may be inferred that Defendant Spencer conspired 26 with any of the other defendants to prosecute Plaintiff for 96 1 embezzlement without probable cause: “Defendant SPENCER literally 2 had no involvement in the investigation or prosecution of 3 Plaintiff other than facilitating the original meeting between 4 the ABBATES and defendant HUTTON.” 5 Defendants contend that the evidence establishes that Hutton 6 simply conducted an investigation, documented his work and 7 submitted it to the prosecuting attorneys. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 As to Defendant Hutton, Plaintiff responds that summary judgment for either Defendants Spencer or Hutton is not appropriate: The evidence shows that the Abbates contacted their personal Friend [sic], Spencer, who thereafter set up a meeting to begin an investigation without scrutiny into suspicious and unsupported aspects of embezzlement. The evidence shows that this was uncommon and that the Merced Police department [sic] would have normally investigated. The evidence also shows that Abbate’s false and fabricated allegations went purposefully unscrutinized by all of the other participants in the criminal case and that a felony disposition as well as custody time and full restitution, were at all times insisted upon against a young woman with no criminal record and against whom the evidence was thin, even after Aceves recanted his coerced allegations. In sum, the evidence shows that all of the participants shared a goal of disregarding the truth and good faith investigation and proceeded to attempt to railroad the plaintiff, only after she had quit her employment at Yosemite Chevron due to wage and hour and sex harassment issues. This evidence is sufficient for a jury to find a conspiracy existed. 23 None of the evidence against Defendant Spencer suffices to 24 establish his involvement in the alleged conspiracy. Jim Abbate, 25 the brother of Defendant Abbate, was advised by Marty Clair, a 26 97 1 former detective with the Merced Police Department, to bring the 2 claim of embezzlement to the District Attorney’s Office. 3 is no evidence that Defendant Spencer had any participation in 4 Clair’s advice. 5 and Abbate is sparse. 6 vacations, mutual gift-giving, or other inter-personal or inter- 7 familial relationships are shown. 8 the same country club is not enough. 9 Abbate was a political contributor to Spencer or had other 10 11 There The evidence about “friendship” between Spencer No consistent pattern of socializing, That two individuals belong to There is no evidence that financial dealings with him. There is no evidence that Defendant Spencer was involved in 12 the investigation or prosecution of Plaintiff after he introduced 13 the Abbates to the District Attorney’s Office investigators. 14 fact that the District Attorney’s Office investigated the 15 Abbates’ charge of embezzlement against Plaintiff instead of the 16 City of Merced Police Department is irrelevant, absent a showing 17 that the District Attorney did not have the legal authority to 18 conduct the investigation or an enforceable agreement that the 19 District Attorney ceded jurisdiction to the Merced Police 20 Department. 21 with the Abbate Defendants and/or the Cassabon Defendants to 22 investigate the claimed embezzlement, or to conduct a superficial 23 and/or allegedly incompetent investigation, or to submit his 24 investigative report to the prosecutors for review and 25 determination to bring charges. 26 nor is there evidence of animus against her. The There is no evidence that Defendant Hutton agreed Hutton did not know Plaintiff 98 That his 1 investigation was ineffective, if not incompetent, does not make 2 him a conspirator. 3 D. 4 Defendants move for summary judgment as to the County of 5 6 DEFENDANT COUNTY OF MERCED. Merced. As to the First Cause of Action for violation of Section 7 1983, Defendants assert that Plaintiff has not established 8 liability of the County under Monell v. Department of Social 9 Services, 436 U.S. 658, 691 (1978). Defendants refer to 10 Plaintiff’s response to the County’s interrogatory requesting 11 Plaintiff to state with particularity all customs and policies of 12 the County giving rise to Plaintiff’s constitutional violation 13 claims: “Plaintiff contends, upon information and belief, that 14 the law enforcement of Merced County acceded to the wrongful acts 15 of District Attorney Spencer who himself is a state actor.” 16 Defendants contend that the County cannot be liable for any 17 policy decisions of Defendant Spencer because he is a state 18 policymaker under McMillan v. Monroe County, Alabama, 520 U.S. 19 781, 785 (1997) and Pitts v. County of Kern, 17 Cal.4th 340 20 (1998). 21 any other unconstitutional custom or policy that would give rise 22 to the County’s liability under Monell. 23 Defendants further contend that there is no evidence of Plaintiff “does not disagree with the defendants’ 24 arguments.” Plaintiff therefore concedes that Defendant County 25 is not liable for damages for any violation by Defendants Spencer 26 or Hutton of Plaintiff’s constitutional rights under the First 99 1 2 Cause of Action. Defendants’ motion for summary judgment as to the First 3 Cause of Action for violation of Section 1983 on the basis of 4 Monell liability against the County of Merced is GRANTED. 5 Defendants move for summary judgment for the County as to 6 the Second Cause of Action. The Second Cause of Action is for 7 declaratory relief pursuant to 28 U.S.C. § 2201 against the 8 County of Merced and seeks “a declaration from this Court that, 9 based on the factual transactions underlying this proceeding, her 10 rights under the Fourth Amendment not to have her liberty 11 restricted without legal basis, to be arrested without probable 12 cause, and to be prosecuted maliciously without probable cause 13 were violated.” 14 County “is the appropriate defendant for this cause of action 15 since it has the power, either directly or indirectly, or through 16 one of its law enforcement agencies, to expunge the records of 17 Tiffany’s arrest and prosecution and to thus eliminate the many 18 adverse consequences of such records.” The Second Cause of Action alleges that the 19 28 U.S.C. § 2201(a) provides in pertinent part: 20 In a case of actual controversy within its jurisdiction ... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such. 21 22 23 24 25 “The Declaratory Judgment Act embraces both constitutional 26 100 1 and prudential concerns. A lawsuit seeking federal declaratory 2 relief must first present an actual case or controversy within 3 the meaning of Article III, section 2 of the United States 4 Constitution.” 5 1220, 1222 (9th Cir.1998). 6 jurisdictional prerequisites.” 7 passes constitutional and statutory muster, the district court 8 must also be satisfied that entertaining the action is 9 appropriate. Government Employees Ins. Co. v. Dizol, 133 F.3d “It must also fulfill statutory Id. at 1222-1223. “If the suit This determination is discretionary, for the 10 Declaratory Judgment Act is ‘deliberately cast in terms of 11 permissive, rather than mandatory, authority.’ ... The Act ‘gave 12 the federal courts competence to make a declaration of rights; it 13 did not impose a duty to do so.’ ....” 14 Id. at 1223. Defendants contend that, because Plaintiff was not arrested, 15 see discussion supra, Plaintiff is not entitled to declaratory 16 relief as to her claim of false arrest and must rely solely on 17 her claim of malicious prosecution pursuant to Section 1983. 18 Citing Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir.1986), 19 Defendants argue that “appropriate relief has already been 20 granted because the allegedly malicious prosecution has been 21 terminated.” 22 23 Defendants reliance on Ashelman v. Pope is misplaced; the case involved absolute judicial and prosecutorial immunity. 24 Defendants argue that the Second Cause of Action should be 25 dismissed because Plaintiff is not seeking a declaration of the 26 rights and duties of the parties. 101 Rather, all of the acts 1 alleged in the Complaint have already occurred and the granting 2 of declaratory relief will not prevent further damages or further 3 the purposes of the Declaratory Judgment Act. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 In United States v. Doherty, 786 F.2d 491, 498 (2nd Cir.1986): The purpose of the [Declaratory Judgment Act] has been expressed in a variety of ways: ‘Essentially, a declaratory relief action brings an issue before the court that otherwise might need to await a coercive action brought by the declaratory relief defendant.’ ...; the fundamental purpose of the DJA is to ‘avoid accrual of avoidable damages to one not certain of his rights and to afford him an early adjudication without waiting until his adversary should see fit to begin suit, after damages have accrued,’ ...; the primary purpose of the DJA is to have a declaration of rights not already determined, not to determine whether rights already adjudicated were adjudicated properly, ...; the declaratory judgment procedure ‘creates a means by which rights and obligations may be adjudicated in cases involving an actual controversy that has not reached the stage at which either party may seek a coercive remedy, or in which the party entitled to such a remedy fails to sue for it,’ ...; the declaratory judgment procedure ‘enable[s] a party who is challenged, threatened or endangered in the enjoyment of what he claims to be his rights, to initiate the proceedings against his tormentor and remove the cloud by an authoritative determination of the plaintiff’s legal right, privilege and immunity and the defendant’s absence of right, and disability,’ .... 22 Plaintiff contends that even where an equitable relief claim 23 involves past exposure to illegal conduct, a present case or 24 controversy exists if there are continuing, present adverse 25 effects, see O’Shea v. Littleton, 414 U.S. 488, 495-496 (1974), 26 102 1 and that summary judgment on the Second Cause of Action “on the 2 grounds of mootness would be justified only if it were absolutely 3 clear that the litigant no longer had any need of the judicial 4 protection it sought.” 5 U.S.C 216, 224 (2000). Adarand Constructors, Inc. v. Slater, 528 6 Plaintiff argues that the existence of records of an 7 unconstitutional arrest is a sufficient adverse consequence to 8 warrant declaratory relief, citing among other cases, Maurer v. 9 Individually and As Members of Los Angeles County Sheriff’s 10 Dept., 691 F.2d 434 (9th Cir.1982). 11 In Maurer, a state prisoner brought a civil rights action 12 alleging that his arrest was invalid on federal constitutional 13 grounds and seeking a permanent injunction prohibiting 14 dissemination of his arrest record. 15 the district erred in dismissing Mauer’s expungement action: 16 17 18 19 20 21 22 23 24 The Ninth Circuit held that It is well-settled that the federal courts have inherent equitable power to order ‘the expungement of local arrest records as an appropriate remedy in the wake of police action in violation of constitutional rights.’ ... Contrary to the district court’s conclusion, Maurer has no adequate remedy under state law for his claim. The state statute upon which the district court relied provides for the destruction of arrest records only where the court determines after an acquittal that the defendant is ‘factually innocent of the charge.’ California Penal Code § 851.85. Mauer seeks a declaratory judgment that his arrest violated the Fourth Amendment. There is no adequate remedy at law for that claim. 25 691 F.2d at 437. 26 See also Shipp v. Todd, 568 F.2d 133, 134-135 (9th Cir.1978): 103 Although appellant has served the sentences imposed for his burglary convictions, the maintenance of his criminal records continues to operate to his detriment ... ‘It is established that the federal courts have inherent power to expunge criminal records when necessary to preserve basic rights.’ 1 2 3 4 5 Shipp noted: The power to order expungement of a state arrest record is a narrow one and should be reserved for unusual of extreme cases, or example, ‘where the arrest itself was an unlawful one, or where the arrest represented harassing action by the police, or where the statute under which the arrestee was prosecuted was itself unconstitutional.’ United States v. Linn, 513 F.2d 925, 927 (10th Cir.1975). 6 7 8 9 10 11 Plaintiff further argues that there is also the possibility 12 that she could be disadvantaged in terms of credibility, 13 promotions, or future employment as a result of having a serious 14 felony arrest on her record. Therefore, the Second Cause of 15 Action is not moot. 16 “In ruling on requests for expungement, federal courts must 17 balance the legitimate need of the government to maintain 18 criminal record information with the resulting harm to the 19 individual who is the subject of the records.” United States v. 20 Vasquez, 74 F.Supp.2d 964, 966 (S.D.Cal.1999), disapproved on 21 other grounds, United States v. Sumner, 226 F.3d 1005 (9th 22 Cir.2000). 23 Plaintiff, referring to the Second Cause of Action for 24 declaratory relief, argues that the County may be liable under 25 Section 1983 for prospective injunctive relief even if the 26 104 1 constitutional violation was not the result of an official custom 2 or policy. 3 250-251 (9th Cir.1989). 4 Monell did not apply to any “official policy or custom” 5 requirement to foreclose a suit for prospective relief against a 6 county or its officials for enforcing allegedly unconstitutional 7 state laws. 8 prospective equitable relief, i.e., expungement of her arrest, 9 charging, and prosecution records, the County is a proper 10 11 Plaintiff cites Chaloux v. Killeen, 886 F.2d 247, In Chaloux, the Ninth Circuit held that Plaintiff asserts that, because she seeks defendant in this action. Defendants reply that it is Plaintiff’s burden to produce 12 evidence that she has sought expungement of her records and that 13 the County has the ability to do so. 14 Defendants contention is legitimate. Plaintiff was not 15 arrested. 16 prosecution are those of the Merced County Superior Court which 17 is an arm of the State of California. 18 851.8 provides: 19 20 21 The records of the criminal complaint and her California Penal Code § (e) Whenever any person is acquitted of a charge and it appears to the judge presiding at the trial at which the acquittal occurred that the defendant was factually innocent of the charge, the judge may grant the relief provided in subdivision (b). 22 However, Section 851.8(k) provides that provides that no records 23 may be destroyed pursuant to subdivisions (b) or (e) if a civil 24 action is filed, until the civil action is resolved. Plaintiff 25 herself must request expungement of the record of her criminal 26 105 1 prosecution from the Merced County Superior Court; the County 2 cannot do so. 3 she can make a demand under Penal Code § 851.8. 4 denied, she will have appropriate remedies in the state court by 5 way of administrative mandamus. If Plaintiff is Cause of Action is GRANTED WITHOUT PREJUDICE. CONCLUSION 8 For the reasons stated: 9 1. 10 11 If Plaintiff prevails, Summary judgment for the County of Merced as to the Second 6 7 The action is premature. The motion for summary judgment by Defendants County of Merced, Gordon Spencer, and Merle Wayne Hutton is GRANTED. 2. 12 Counsel for the County Defendants shall prepare and 13 lodge a form of order that the rulings set forth in this 14 Memorandum Decision within five (5) days following the date of 15 service of this decision. 16 IT IS SO ORDERED. 17 Dated: 668554 December 29, 2010 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 106