Fenters et al v. Yosemite Chevron et al, No. 1:2005cv01630 - Document 229 (E.D. Cal. 2010)

Court Description: MEMORANDUM, OPINION and ORDER granting in part and denying in part 137 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. 229 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 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV-F-05-1630 OWW/DLB MEMORANDUM DECISION GRANTING IN PART AND DENYING IN PART DEFENDANTS YOSEMITE CHEVRON, ABBCO INVESTMENTS, LLC, AND ROBERT ABBATE'S MOTION FOR SUMMARY JUDGMENT (Doc. 137) Before the Court is the motion for summary judgment filed by 18 Defendants Yosemite Chevron, Abbco Investments, LLC, and Robert 19 Abbate (hereafter the “Abbate Defendants”).1 20 A. 21 REPORT. 22 23 ABBATE DEFENDANTS’ OBJECTIONS TO BETTANCOURT EXPERT Submitted in opposition to the Abbate Defendants’ motion for summary judgment is what is characterized by Mr. Little as “the 24 25 26 1 The motions for summary judgment filed by the County Defendants and the Cassabon Defendants will be resolved by separate memorandum decisions. 1 Dockets.Justia.com 1 2 3 4 declaration report” of John Bettancourt. Mr. Bettancourt avers: 1. I am a certified public accountant. My current curriculum vitae has been provided separately. 2. I have been retained on behalf of plaintiff Tiffany Fenters in this proceeding. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 3. My opinions regarding the accounting aspects of this case are set forth in my testimony in the criminal case, People v. Tiffany Fenters, which I incorporate herein by reference. Those opinions remain unchanged. I based those opinions on a review of the accounting materials provided and made available by the prosecution in the underlying criminal case. I reviewed those materials at length, and I understand that my related work product has also been produced by plaintiff’s counsel. 4. The spreadsheets provided by defendant Robert Abbate is indicative of false, fabricated and misleading work product for the reasons previously stated in my trial testimony and as reflected in my work product. The accounting work done by defendants Cassabon & Associates and Victor Fung is also indicative of false, fabricated and/or misleading work product for the reasons largely expressed in my trial testimony and reflected in my work product. The defendants’ accounting work is not merely substandard or negligent but instead is reflective of false, fabricated and/or misleading work. The Abbate Defendants object to Mr. Bettancourt’s declaration on several grounds. Defendants object to consideration of Mr. Bettancourt’s 23 declaration because it fails to set forth Mr. Bettancourt’s 24 qualifications. 25 26 Rule 702, Federal Rules of Evidence, provides: If scientific, technical, or other 2 1 2 3 4 specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise. 5 “Whether a witness is qualified as an expert can only be 6 determined by comparing the area in which the witness has 7 superior knowledge, skill, experience, or education with the 8 subject matter of the witness’s testimony. 9 Elevator Co., 896 F.2d 210, 212 (7th Cir.1990). 10 Carroll v. Otis Defendants complain that Mr. Bettancourt’s declaration does 11 not set forth his qualifications, other than to aver that he is a 12 certified public accountant. 13 Plaintiff responds that “the totality of the materials 14 submitted to the Court, which include Bettancourt’s trial 15 testimony in the underlying criminal case and his deposition, 16 more than amply set forth his qualifications as an experienced 17 forensic accountant and certified fraud examiner, as well as the 18 materials he reviewed in support of his opinion in this case,” 19 citing Bettancourt’s trial testimony at p. 516-531 and his 20 deposition testimony at p. 1-23. 21 Corrections Corp. of America, 375 F.Supp.2d 889, 896 (D.Alaska 22 2005), in contending that “an expert report may, as do 23 plaintiff’s expert’s reports, include or make reference to 24 attachments reflecting the expert’s opinions.” 25 26 Plaintiff cites Miller v. Defendants’ objections to Mr. Bettancourt’s declaration on the ground that he is unqualified to render the opinion is 3 1 baseless. 2 Mr. Bettancourt is not qualified to give his expert opinion as to 3 the accounting methods utilized by Defendants. 4 Defendants do not point to any specific evidence that Defendants object that Mr. Bettancourt provides no 5 foundation for his opinion in that he does not set forth any of 6 the data he reviewed or any investigation that he undertook in 7 reaching his conclusions; that it does not set forth his 8 methodology; and that his testimony is speculative and 9 conjectural. 10 However, as Plaintiff notes, Mr. Bettancourt’s methodology 11 and foundation is set forth in his trial testimony in the 12 underlying criminal action. 13 conclusions are conjectural and speculative, these are matters 14 going to the weight of his opinion, not its admissibility. While certain of Mr. Bettancourt’s 15 B. GOVERNING STANDARDS. 16 Summary judgment is proper when it is shown that there 17 exists “no genuine issue as to any material fact and that the 18 moving party is entitled to judgment as a matter of law.” 19 Fed.R.Civ.P. 56. 20 element of a claim or a defense, the existence of which may 21 affect the outcome of the suit. 22 Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th 23 Cir.1987). 24 governing a claim or a defense. 25 inferences drawn from it must be construed in the light most 26 favorable to the nonmoving party. A fact is “material” if it is relevant to an T.W. Elec. Serv., Inc. v. Materiality is determined by the substantive law Id. 4 The evidence and all Id. 1 The initial burden in a motion for summary judgment is on 2 the moving party. The moving party satisfies this initial burden 3 by identifying the parts of the materials on file it believes 4 demonstrate an “absence of evidence to support the non-moving 5 party’s case.” 6 (1986). 7 summary judgment. 8 party “may not rely on the mere allegations in the pleadings in 9 order to preclude summary judgment,” but must set forth by 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. The nonmoving 10 affidavit or other appropriate evidence “specific facts showing 11 there is a genuine issue for trial.” 12 may not simply state that it will discredit the moving party’s 13 evidence at trial; it must produce at least some “significant 14 probative evidence tending to support the complaint.” 15 question to be resolved is not whether the “evidence unmistakably 16 favors one side or the other, but whether a fair-minded jury 17 could return a verdict for the plaintiff on the evidence 18 presented.” 19 52 F.3d 810, 815 (9th Cir.1995). 20 “mere existence of a scintilla of evidence in support of the 21 plaintiff’s position”; there must be “evidence on which the jury 22 could reasonably find for the plaintiff.” 23 implausible the claim or defense asserted by the nonmoving party, 24 the more persuasive its evidence must be to avoid summary 25 judgment.” 26 Fritz Companies, 210 F.3d 1099 (9th Cir.2000): Id. The nonmoving party Id. The United States ex rel. Anderson v. N. Telecom, Inc., Id. This requires more than the Id. The more As explained in Nissan Fire & Marine Ins. Co. v. 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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 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. 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 .... 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 6 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 create a genuine issue of material fact, the nonmoving party defeats the motion. 1 2 3 4 5 6 7 210 F.3d at 1102-1103. C. FACTS. 1. 8 9 10 ABBATE DEFENDANTS’ SEPARATE STATEMENT OF UNDISPUTED Issue No. 1: Plaintiff Cannot Maintain a Claim for Violation of Section 1983 Because She Cannot Meet the Requisite Elements. DUF 1: 11 Tiffany Fenters (“Fenters” or “Plaintiff”) 12 worked for defendant Yosemite Chevron between June 2002 to March 13 2003. Plaintiff’s Response: UNDISPUTED. 14 15 16 DUF 2: Yosemite Chevron between April 2002 to March 2003. Plaintiff’s Response: UNDISPUTED. 17 18 19 DUF 3: Defendant Robert Abbate (“Abbate”) has managed and operated Yosemite Chevron from 1999 to the present. Plaintiff’s Response: UNDISPUTED. 20 21 Alejandro Aceves (“Aceves”) also worked for DUF 4: On March 27, 2003, Fenters quit her employment 22 with Yosemite Chevron and submitted her written resignation on 23 March 28, 2003. 24 25 26 Plaintiff’s Response: UNDISPUTED. DUF 5: On March 31, 2003, Abbate caught Aceves stealing from Yosemite Chevron by falsely voiding actual 7 1 transactions and then stealing the overage in cash from the 2 register at the end of his shift. Plaintiff’s Response: UNDISPUTED. 3 DUF 6: 4 On March 31, 2003, Aceves confessed to Abbate 5 that he was stealing by falsely voiding actual transactions and 6 then taking the overage from the register. Plaintiff’s Response: UNDISPUTED. 7 DUF 7: 8 9 On March 31, 2003, Aceves also told Abbate that Fenters taught him how to steal through the voiding 10 transaction scheme. Supporting Evidence: Exh. F, Aceves Depo. 11 98:918, 99:9-102:3, 103:3-22, 105:2-12, 106:20-108:21, 110:2- 12 112::23, 129:13-23, 176:5-22, 194:4-196:2; Exh. B, Aceves trial 13 testimony 267:3-12. Plaintiff’s Response: 14 Disputed. During his trial 15 testimony, Aceves testified that he learned how to do illegal 16 voids himself, in order to obtain extra money. See Trial 17 Transcript, pp. 266-267, 276, 285, 287. Aceves never told Abbate 18 he had seen Fenters do any illegal voids or steal any money from 19 the store. 20 firing of Aceves, Abbate first brought up Fenters’ name, saying 21 that “he knew Tiffany was in it.” Trial Transcript, p. 291. 22 Aceves thereafter only implicated Fenters and other employees in 23 an attempt to deflect blame from himself and also because Abbate 24 seemed to focus on her. 25 292. 26 2003 meeting because she was first suggested by Abbate himself. Trial Transcript, pp. 275. In connection with his See Trial Transcript, pp. 272-273, 291- Aceves also mentioned Fenters at the subsequent June 4, 8 1 See Trial Transcript, p 268, 270, 272. Abbate indicated that 2 Aceves could receive a shorter sentence if he helped make the 3 case against Fenters easier. See Trial Transcript, p. 294. The 4 prosecution echoed this offer. Bacciarini Deposition, p. 64. 5 Abbate also told Aceves that if Aceves could get evidence to 6 convict Fenters that he could benefit in his own case. See Trial 7 Transcript, pp. 295. Bacciarini recalls that Aceves may have told 8 him that he was pressured by Abbate to implicate Fenters. 9 Bacciarini Deposition, p. 48-49. There is thus ample evidence 10 that Abbate suggested Fenters as a possible embezzler and that 11 Aceves never implicated her of his own accord. 12 similar and more extensive testimony during his deposition. 13 addition to confirming that the subject events were fresher in 14 his mind at the time of his criminal testimony, see Aceves 15 Deposition, p. 168, Aceves confirmed that Abbate was the first 16 person to suggest Tiffany Fenters. Aceves Deposition, p. 17 170, 171, 172, 182. 18 information about anyone else who was identified as a possible 19 embezzler, just Tiffany. Aceves Deposition, p. 173, 178. Despite 20 the focus on Fenters, no one ever asked Aceves to provide details 21 regarding any alleged conversations he had with Fenters, identify 22 any dates where the two of them met, provide any phone records, 23 identify any shift records where the two of them worked together, 24 review any videotapes from the cash register area where the 25 illicit instruction allegedly took place, or provide any bank 26 records or other evidence of his obtaining illicit funds. See Aceves provided In Aceves was never pressured for additional 9 1 Aceves Deposition, p. 175-177, 187-188. Aceves testified “that’s 2 why it was kind of easy to lie because nobody actually went into 3 detail.” Aceves Deposition, p. 175. It seemed that the objective 4 of Abbate and Hutton was to pursue Fenters and have him testify 5 against her. 6 further demonstrates that Abbate and Hutton’s entire object was 7 to construct a case against Fenters, even if it meant 8 disregarding the truth. Aceves Deposition, p. 178, 181. This evidence Court Ruling: DISPUTED. 9 Although Aceves testified 10 at his deposition that he told Abbate on March 21, 2003 that 11 Plaintiff taught him how to steal through the voiding transaction 12 scheme, Aceves testified differently and inconsistently at 13 Plaintiff’s criminal trial. 14 DUF 8: On March 31, 2003, Abbate did not threaten or 15 coerce Aceves into confessing that he stole from Yosemite 16 Chevron. 17 Plaintiff’s Response: UNDISPUTED, but Plaintiff 18 asserts that Abbate’s coercion pertained to having Aceves falsely 19 implicate Plaintiff. 20 DUF 9: On or about May 14, 2003, Abbate made a 21 complaint to the Merced County District Attorney’s Office 22 (District Attorney”), including its investigators, that he 23 believed Fenters and Aceves were stealing from Yosemite Chevron 24 through the voiding transaction scheme. 25 Exh. A, Abbate Dec. ¶ 5; Exh. G, Spencer Depo. 47:6-12, 73:1-8; 26 Exh. H, Hutton Investigation Report. 10 Supporting Evidence: 1 Plaintiff’s Response: Disputed, as the evidence 2 shows that Abbate never had any good faith belief that Fenters 3 was stealing. Abbate misrepresented to Hutton that only one 4 employee worked on the cash register in a given shift, although 5 he knew the opposite was true on a daily basis. Hutton 6 Deposition, p. 20, 74; Abbate Deposition, p. 81, 99. Indeed, 7 employees’ log-on codes to the cash register were typically 8 the last four digits of their phone numbers, and the phone 9 numbers of employees were posted in the store. Abbate 10 Deposition, p. 85. Abbate did not expect employees to review 11 their shift reports on a line by line basis to ensure they were 12 responsible for each transaction. Abbate Deposition, p. 90-91. 13 Abbate also never told Bacciarini that more than one employee 14 could have worked on the cash register during a given shift. 15 Bacciarini Deposition, p. 16. Abbate reiterated this 16 misrepresentation at trial, only later acknowledging during trial 17 on cross examination that voids could not necessarily be linked 18 to a particular employee, as opposed to a particular shift. 19 Preliminary hearing Transcript, p. 8, 17; Trial Transcript, p. 20 242. Hutton would have considered it important to know that 21 actually multiple employees could work on the register in a given 22 shift. Hutton Deposition, p. 21. Hutton would have considered 23 this important because it would have made the task of identifying 24 a particular employee who committed wrongdoing more difficult. 25 Hutton Deposition, p. 22. 26 at the preliminary hearing that the voids attributable to Fenters See Abbate conceded on cross-examination 11 1 were overstated in his spreadsheet. See Preliminary Hearing 2 Transcript, pp. 52-59. Abbate also conceded that certain entries 3 in his spreadsheet appeared to be entered wrongly, and he spent 4 no time reviewing the initial draft spreadsheet he prepared. 5 Preliminary hearing Transcript, pp. 60-61; Abbate Deposition, p. 6 60, 64. Abbate also attributed certain shifts to Fenters, even 7 though the underlying pay point reports did not contain her 8 genuine signature. See Trial Transcript, pp. 491-492. 9 also represented to Hutton that he had contact with another See Abbate 10 anonymous employee, who turned out to be Robert Wilson, around 11 the time of Tiffany’s separation from employment who first 12 provided information regarding the alleged embezzlement, but 13 Abbate did not tell Hutton that Wilson had been fired in 14 December 2002 for stealing from Fenters. 15 72, 92-94; Trial Transcript, p. 488. Abbate continued his 16 pattern of misrepresentation at the preliminary hearing and trial 17 by again merely referring to Wilson as an “ex-employee.” See 18 Preliminary Hearing Transcript, p. 41; Trial Transcript, p. 213. 19 There never was an anonymous employee, and Abbate was aware of 20 Wilson’s firing at all pertinent times. See Abbate Deposition, p. 21 44-45, 97. Hutton would have considered this information 22 important to include in his investigation report. Hutton 23 Deposition, p. 90-91. 24 has cut Fenters hours beginning in January 2003 because he 25 suspected she was stealing from his business. See Hutton’s 26 Investigative Report, Exh. B to Fung. Decl., pp. 2. Abbate did Hutton Deposition, p. Abbate also initially told Hutton that he 12 1 not concede until trial that Fenters’ hours had not been cut 2 during this time period. See Trial Transcript, pp. 235-236. 3 Indeed, even after Aceves first admitted stealing in March 2003, 4 Abbate only believed that he was dealing with a petty issue. 5 Abbate Deposition, p. 102. 6 returns or other financial documents reflecting a drop in 7 revenues during the time when the embezzlement was allegedly 8 occurring. Hutton Deposition, p. 22. Abbate also did not provide 9 Hutton with any videotapes from the register area. Abbate also did not provide any tax Hutton 10 Deposition, p. 23. This is further circumstantial evidence of his 11 intent to conceal the truth and unduly influence the criminal 12 proceedings against Fenters. Court Ruling: UNDISPUTED; Plaintiff’s evidence 13 14 15 does not contradict DUF 9 as stated among other things. DUF 10: The District Attorney’s Office, including 16 its investigators, were in charge of the investigation in 17 Fenters’ case. 18 Spencer Depo. 36:13-16; Exh. B, Jury Trial Transcript 30:6-18; 19 Exh. J, Souza Depo. 94:7-16, 144:22-145:12; Exh. K, Vernon 20 Fenters Depo. 51:10-13, 66:7-11, 69:7-10. 21 Exh. I, Bacciarini Depo. 74:6-75:1; Exh. G, Plaintiff’s Response: Disputed, as the evidence 22 shows the District Attorney’s Office was unduly influenced by 23 Abbate’s misrepresentations. 24 operating in good faith in proceeding to a preliminary hearing 25 and trial. Bacciarini Deposition, p. 87-88. However, Abbate 26 misrepresented to Hutton that only one employee worked on the The prosecution relied on Abbate’s 13 1 cash register in a given shift, although he knew the opposite 2 was true on a daily basis. 3 Deposition, p. 81, 99. Indeed, employees’ log on codes to the 4 cash register were typically the last four digits of their phone 5 numbers, and the phone numbers of employees were posted in the 6 store. Abbate Deposition, p. 85. Abbate did not expect employees 7 to review their shift reports on a line by line basis to ensure 8 they were responsible for each transaction. Abbate Deposition, p. 9 90-91. Abbate also never told Bacciarini that more than one Hutton Deposition, p. 20, 74; Abbate 10 employee could have worked on the cash register during a given 11 shift. Bacciarini Deposition, p. 16. Abbate reiterated this 12 misrepresentation at trial, only later acknowledging during trial 13 on cross examination that voids could not necessarily be linked 14 to a particular employee, as opposed to a particular shift. 15 Preliminary hearing Transcript, p. 8, 17; Trial Transcript, p. 16 242. Hutton would have considered it important to know that 17 actually multiple employees could work on the register in a given 18 shift. Hutton Deposition, p. 21. Hutton would have considered 19 this important because it would have made the task of identifying 20 a particular employee who committed wrongdoing more difficult. 21 Hutton Deposition, p. 22. 22 retained after the preliminary hearing, the District Attorney’s 23 Office relied on Abbate to review the financial information 24 pertinent to the case against Fenters. 25 34. Abbate’s financial analysis was one of the reasons that 26 Hutton submitted the case against Fenters for filing. Hutton See Until the time the Cassabon firm was 14 Hutton Deposition, p. 33- 1 Deposition, p. 82. Indeed, the Abbate spreadsheet was the 2 only financial evidence then available in a prospective financial 3 crime case. Hutton Deposition, pp. 82-83. 4 cross-examination at the preliminary hearing that the voids 5 attributable to Fenters were overstated in his spreadsheet. See 6 Preliminary Hearing Transcript, pp. 52-59. Abbate also conceded 7 that certain entries in his spreadsheet appeared to be entered 8 wrongly, and he spent no time reviewing the initial draft 9 spreadsheet he prepared. Abbate conceded on See Preliminary hearing Transcript, pp. 10 60-61; Abbate Deposition, p. 60, 64. Abbate also attributed 11 certain shifts to Fenters, even though the underlying pay point 12 reports did not contain her genuine signature. See Trial 13 Transcript, pp. 491-492. 14 he had contact with another anonymous employee, who turned out to 15 be Robert Wilson, around the time of Tiffany’s separation from 16 employment who first provided information regarding the alleged 17 embezzlement, but Abbate did not tell Hutton that Wilson had been 18 fired in December 2002 for stealing from Fenters. 19 Deposition, p. 72, 92-94; Trial Transcript, p. 488. Abbate 20 continued his pattern of misrepresentation at the preliminary 21 hearing and trial by again merely referring to Wilson as an 22 “exemployee.” 23 Transcript, p. 213. 24 Abbate was aware of Wilson’s firing at all pertinent times. See 25 Abbate Deposition, p. 44-45, 97. Hutton would have considered 26 this information important to include in his investigation Abbate also represented to Hutton that Hutton See Preliminary Hearing Transcript, p. 41; Trial There never was an anonymous employee, and 15 1 report. Hutton Deposition, p. 90-91. Abbate also initially told 2 Hutton that he has cut Fenters hours beginning in January 2003 3 because he suspected she was stealing from his business. See 4 Hutton’s Investigative Report, Exh. B to Fung. Decl., pp. 2. 5 Abbate did not concede until trial that Fenters’ hours had not 6 been cut during this time period. See Trial Transcript, pp. 235- 7 236. Indeed, even after Aceves first admitted stealing in March 8 2003, Abbate only believed that he was dealing with a petty 9 issue. Abbate Deposition, p. 102. Abbate also did not provide 10 any tax returns or other financial documents reflecting a drop in 11 revenues during the time when the embezzlement was allegedly 12 occurring. Hutton Deposition, p. 22. Abbate also did not provide 13 Hutton with any videotapes from the register area. 14 Deposition, p. 23. This is further circumstantial evidence of his 15 intent to conceal the truth and unduly influence the criminal 16 proceedings against Fenters. 17 District Attorney’s Office did no independent investigation that 18 would have permitted it to exercise its discretion in any genuine 19 and autonomous manner. Spencer acknowledged, although it was not 20 done in this case, that his office commonly sought the assistance 21 of a forensic accountant or fraud examiner during the 22 investigation stage of a case. Spencer Deposition, p. 56. Indeed, 23 Hutton conceded at trial that he did nothing to corroborate 24 Aceves’ statement and Abbate’s spreadsheet, even though he knew 25 Abbate was not an accountant and that confessions are not always 26 the full truth. See Trial Transcript, pp. 377-378, 401-404. Hutton The record also shows that the 16 1 Hutton never did an independent analysis of the Abbate 2 spreadsheets. Bacciarini Deposition, p. 22; Abbate Deposition, p. 3 108. Hutton also never tested the store surveillance system 4 himself, even though the system would depict money taken from the 5 register by an employee. Hutton Deposition, p. 24. 6 took any steps to obtain any financial information pertaining to 7 Fenters. 8 Hutton did not attempt to speak with Fenters’ parents as part of 9 his investigation, even though there was an allegation that Hutton never Hutton Deposition, p. 28-29; Trial Transcript, pp. 443. 10 Fenters had been “cut off” by them and therefore had a motive to 11 steal. Hutton Deposition, p. 30. (Fenters’ father, Virgil 12 Fenters, refuted this allegation at trial. See Trial Transcript, 13 p. 418.) 14 corroborated the allegation that Fenters’ hours were cut in 15 February 2003 due to her being suspected of stealing. Hutton 16 Deposition, p. 71. Hutton “assumed there was a friendly 17 connection between Fenters and Aceves but made no effort to 18 confirm that through investigation, i.e., phone records, or other 19 Yosemite Chevron employees, Hutton Deposition, p. 31. Hutton also 20 never asked for specifics regarding where Aceves and Fenters were 21 when Fenters allegedly taught him to do illegal voiding. Hutton 22 Deposition, p. 31-32. Hutton never investigated any information 23 suggesting that Abbate was a drug user, although it was provided 24 by the defense during discovery and Hutton acknowledges that 25 such matters can have a bearing on a witness’ credibility in a 26 case involving alleged financial loss. Hutton Deposition, p. 83- Hutton also never obtained any shift records that 17 1 84; Bacciarini Deposition, p. 88. Hutton never asked Aceves if 2 he had prior cash register experience. Trial Transcript, p. 391. 3 Hutton never investigated how many employees worked or could use 4 the register in a given shift. Trial Transcript, p. 393. 5 evidence also shows that Abbate was part of the District 6 Attorney’s investigative team for purposes of Fenters’ criminal 7 case. Hutton acknowledges that Abbate was assisting in the 8 District Attorney’s investigation of the Fenters matter between 9 May 14 and June 4, 2003. The Hutton Deposition, p. 43. Abbate also 10 acknowledges he assisted in the investigation and had his most 11 extensive contacts with Hutton during the investigative phase of 12 the Fenters criminal case. Abbate Deposition, p. 104, 124. 13 Hutton testified an interview protocol was set up between Abbate 14 and himself with respect to the June 4, 2003 interview of Aceves. 15 Hutton Deposition, p. 42-43. 16 interview with Aceves. Hutton Deposition, p. 44. Abbate actually 17 conducted the first part of that interview, which was done in 18 conformity with guidelines provided by Hutton. Hutton Deposition, 19 pp. 44-45; Abbate Deposition, p. 109-110. 20 additional eight months of financial analysis at the District 21 Attorney’s request. Hutton Deposition, p. 44; Abbate Deposition, 22 p. 79. Hutton spent approximately 20 hours doing his work on the 23 Fenters case, while Abbate worked 35 hours, not including time he 24 spent assisting in interviews at Hutton’s direction. Hutton 25 Deposition, p. 57; Abbate Deposition, p. 61-62. All of Hutton’s 26 investigation is reflected in his initial and follow up reports. Abbate also set up the June 4, 2003 18 Abbate provided an 1 Hutton Deposition, p. 57. Bacciarini, the lead prosecutor at the 2 preliminary hearing and at trial, has as many contacts with 3 Abbate as he did Hutton in preparation for the preliminary 4 hearing. Bacciarini Deposition, pp. 10-11. 5 Swanson, who was the prosecutor handling the case against 6 Fenters after the preliminary hearing until just before it went 7 to trial, told Fenters’ attorney that he was not permitted to 8 resolve the case via a misdemeanor petty theft plea. See Virgil 9 Fenters Deposition, pp. 32, 35-36. This is further circumstantial Additionally, James 10 evidence of the District Attorney’s compromised status in the 11 Fenters criminal case. 12 13 Court Ruling: DISPUTED. DUF 11: The District Attorney’s Office, including 14 its investigators, controlled the investigation into Fenters’ 15 alleged embezzlement. 16 17 18 19 20 21 Supporting Evidence: see DUF 10. Plaintiff’s Response: Disputed on identical grounds set forth in response to DUF 10. Court Ruling: Disputed. DUF 12: Wayne Hutton was the lead investigator for the District Attorney’s office in the criminal case against Fenters. Plaintiff’s Response: UNDISPUTED, although for 22 reasons stated in response to DUF 10, Abbate was functionally the 23 lead investigator. 24 25 26 DUF 13: Hutton had not met Abbate prior to the criminal action. Plaintiff’s Response: UNDISPUTED. 19 1 DUF 14: Abbate prepared a spreadsheet recording 2 average voided transactions and the dollar amount of those 3 transactions, of Fenters, Aceves, and other employees in the gas 4 station (the “Abate Spreadsheet”), which was attached to Hutton’s 5 investigation report. Plaintiff’s Response: 6 Disputed as to the good 7 faith and completeness of the spreadsheet document. Until the 8 time the Cassabon firm was retained after the preliminary 9 hearing, the District Attorney’s Office relied on Abbate to 10 review the financial information pertinent to the case against 11 Fenters. Hutton Deposition, p. 33-34. Abbate’s financial analysis 12 was one of the reasons that Hutton submitted the case against 13 Fenters for filing. Hutton Deposition, p. 82. Indeed, the Abbate 14 spreadsheet was the only financial evidence then available in a 15 prospective 16 financial crime case. Hutton Deposition, pp. 82-83.Abbate 17 conceded on crossexamination at the preliminary hearing that the 18 voids attributable to Fenters were 19 spreadsheet. See Preliminary Hearing Transcript, pp. 52-59. 20 Abbate also conceded that certain entries in his spreadsheet 21 appeared to be entered wrongly, and he spent no time reviewing 22 the initial draft spreadsheet he prepared. 23 hearing Transcript, pp. 60-61; Abbate Deposition, p. 60, 64. 24 Abbate also attributed certain shifts to Fenters, even though the 25 underlying pay point reports did not contain her genuine 26 signature. See Trial Transcript, pp. 491- 492. 20 overstated in his See Preliminary Abbate also did 1 not provide any tax returns or other financial documents 2 reflecting a drop in revenues during the time when the 3 embezzlement was allegedly occurring. Hutton Deposition, p. 22. 4 Abbate also did not provide Hutton with any videotapes from the 5 register area. 6 circumstantial evidence of his intent to conceal the truth and 7 unduly influence the criminal proceedings against Fenters. Hutton Deposition, p. 23. This is further 8 Court Ruling: DUF 14 is UNDISPUTED; Plaintiff’s 9 evidence does not contradict the fact that Abbate prepared the 10 spreadsheet attached to Hutton’s investigative report. DUF 15: 11 12 On June, 4, 2003, Aceves met Abbate at his office. Plaintiff’s Response: UNDISPUTED. 13 DUF 16: 14 On June 4, 2003, Aceves again confessed to 15 Abbate that he had been stealing through a voiding transaction 16 scheme. 17 Plaintiff’s Response: Disputed. During his trial 18 testimony, Aceves testified that he learned how to do illegal 19 voids himself, in order to obtain extra money. See Trial 20 Transcript, pp. 266-267, 276, 285, 287. Aceves never told 21 Abbate he had seen Fenters do any illegal voids or steal any 22 money from the store. 23 with his firing of Aceves, Abbate first brought up Fenters’ name, 24 saying that “he knew Tiffany was in it.” Trial Transcript, p. 25 291. Aceves thereafter only implicated Fenters and other 26 employees in an attempt to deflect blame from himself and also Trial Transcript, pp. 275. In connection 21 1 because Abbate seemed to focus on her. See Trial Transcript, pp. 2 272-273, 291-292. 3 subsequent June 4, 2003 meeting because she was first suggested 4 by Abbate himself. 5 Abbate indicated that Aceves could receive a shorter sentence if 6 he helped make the case against Fenters easier. See Trial 7 Transcript, p. 294. The prosecution echoed this offer. Bacciarini 8 Deposition, p. 64. Abbate also told Aceves that if Aceves could 9 get evidence to convict Fenters that he could benefit in his own Aceves also mentioned Fenters at the See Trial Transcript, p 268, 270, 272. 10 case. See Trial Transcript, pp. 295. Bacciarini recalls that 11 Aceves may have told him that he was pressured by Abbate to 12 implicate Fenters. 13 thus ample evidence that Abbate suggested Fenters as a possible 14 embezzler and that Aceves never implicated her of his own accord. 15 Aceves provided similar and more extensive testimony during his 16 deposition. 17 were fresher in his mind at the time of his criminal testimony, 18 see Aceves Deposition, p. 168, Aceves confirmed that Abbate was 19 the first person to suggest Tiffany Fenters. Aceves Deposition, 20 p. 170, 171, 172, 182. Aceves was never pressured for additional 21 information about anyone else who was identified as a possible 22 embezzler, just Tiffany. Aceves Deposition, p. 173, 178. Despite 23 the focus on Fenters, no one ever asked Aceves to provide details 24 regarding any alleged conversations he had with Fenters, identify 25 any dates where the two of them met, provide any phone records, 26 identify any shift records where the two of them worked together, Bacciarini Deposition, p. 48-49. There is In addition to confirming that the subject events 22 1 review any videotapes from the cash register area where the 2 illicit instruction allegedly took place, or provide any bank 3 records or other evidence of his obtaining illicit funds. See 4 Aceves Deposition, p. 175-177, 187-188. Aceves testified “that’s 5 why it was kind of easy to lie because nobody actually went into 6 detail.” Aceves Deposition, p. 175. It seemed that the objective 7 of Abbate and Hutton was to pursue Fenters and have him testify 8 against her. Aceves Deposition, p. 178, 181. This evidence 9 further demonstrates that Abbate and Hutton’s entire object was 10 to construct a case against Fenters, even if it meant 11 disregarding the truth. Court Ruling: DUF 16 is UNDISPUTED. 12 The record 13 establishes that on June 4, 2003, Aceves again confessed to 14 Abbate that he had been stealing through a voiding transaction 15 scheme; that Aceves changed his position at trial does not 16 contradict this fact. DUF 17: 17 On June 4, 2003, Aceves again told Abbate that 18 Fenters was the person that had taught him how to steal through 19 the voiding transaction scheme. Plaintiff’s Response: Disputed on identical 20 21 grounds stated in response to DUF 16. Court Ruling: DUF 17 is UNDISPUTED; Plaintiff’s 22 23 evidence does not contradict what Aceves told Abbate on June 4, 24 2003. 25 26 DUF 18: Aceves testified in deposition that he was not under any threats or coercion when he went to meet with Abbate on 23 1 June 4, 2003, and told him how he was stealing. 2 Evidence: 3 99:9-102:3, 103:3-22, 105:2-12, 106:20-108:21, 110:2-112::23, 4 129:13-23, 176:5-22, 194:4-196:2; Exh. B, Aceves trial testimony 5 267:3-12. 6 7 8 9 10 11 Supporting Supporting Evidence: Exh. F, Aceves Depo. 98:918, Plaintiff’s Response: Disputed on identical grounds stated in response to DUF 16. Court Ruling: DUF 18 is UNDISPUTED; Aceves so testified under oath in his deposition. Further, Plaintiff does not dispute DUF 8. DUF 19: Aceves testified in deposition that he was not 12 under any threats or coercion when he went to meet with Abbate on 13 June 4, 2003, and told him that Fenters taught him how to steal. 14 Supporting Evidence: Exh. F, Aceves Depo., 50:11-51:5, 111:8- 15 115:21, 117:7-119:14, 129:13-132:17, 159:4-160:13. 16 17 18 Plaintiff’s Response: Disputed on identical grounds stated in response to DUF 16. Court Ruling: DUF 19 is UNDISPUTED; Aceves so 19 testified under oath at his deposition. 20 provided evidence Aceves was under any threat or coercion when he 21 gave his deposition testimony. 22 DUF 20: Plaintiff has not Aceves ultimately pled no contest to felony 23 embezzlement for stealing from Yosemite Chevron. 24 Plaintiff’s Response: UNDISPUTED. 25 26 DUF 21: Aceves readily admits that he stole from Yosemite Chevron through voiding transactions. 24 1 2 Plaintiff’s Response: UNDISPUTED. DUF 22: On June 23, 2003, the District Attorney 3 filed a Complaint against Fenters for Embezzlement titled the 4 People of the State of California v. Tiffany Michelle Fenters, 5 Merced County Superior Court Case No. MF36082. 6 7 Plaintiff’s Response: UNDISPUTED. DUF 23: Abbate did not participate in or control the 8 decision to file the Complaint. 9 Criminal Complaint; Exh. P, Bacciarini Decl, ¶ 5; Exh. M, Abbate 10 11 12 13 Supporting Evidence: Exh. O, Depo., 121:7-16; Exh. A, Abbate Decl., ¶ 7. Plaintiff’s Response: Disputed on identical grounds stated in response to DUF 10. Court Ruling: DISPUTED. There is evidence from 14 which it may be inferred that Abbate influenced the filing 15 decision in the criminal case. 16 DUF 24: Mark Bacciarini (“Bacciarini”) was the 17 Deputy District Attorney for the District Attorney’s Office that 18 conducted the preliminary hearing and jury trial. 19 20 Plaintiff’s Response: UNDISPUTED. DUF 25: It was the District Attorney’s decision to 21 take the matter to preliminary hearing. 22 Exh. I, Bacciarini Depo., 74:15-75:22. 23 24 25 26 Supporting Evidence: Plaintiff’s Response: Disputed on identical grounds stated in response to DUF 10. Court Ruling: DUF 25 is UNDISPUTED; Plaintiff’s evidence does not contradict that the District Attorney made the 25 1 decision to proceed to a preliminary hearing, even if influenced 2 by Abbate. DUF 26: 3 4 was held in People v. Fenters. Plaintiff’s Response: UNDISPUTED. 5 DUF 27: 6 7 On July 30, 2004, a preliminary hearing Judge Ronald R. Hansen ruled at the preliminary hearing that the Abbate Spreadsheet was inadmissible. Plaintiff’s Response: UNDISPUTED. 8 DUF 28: 9 Judge Hansen also ruled at the preliminary 10 hearing there was sufficient evidence to show the alleged felony 11 was committed by Fenters. Plaintiff’s Response: UNDISPUTED, although 12 13 Plaintiff contends this finding was based on false and fabricated 14 evidence. DUF 29: 15 On August 12, 2004, the District Attorney 16 filed the Information in People of the State of California v. 17 Tiffany Michelle Fenters, Merced County Superior Court Case No. 18 29142. 19 20 Plaintiff’s Response: UNDISPUTED. DUF 30: Abbate did not participate in or control the 21 decision to file the Information. 22 Criminal Information; Exh. P, Bacciarini Decl., ¶ 4; Exh. I, 23 Bacciarini Depo. 74:15-75:22; Exh. A, Abbate Decl., ¶ 8. 24 25 26 Supporting Evidence: Exh. Q, Plaintiff’s Response: Disputed on identical grounds stated in response to DUF 10. Court Ruling: DUF 30 is UNDISPUTED; Plaintiff’s 26 1 evidence does not negate the absence of evidence that Abbate did 2 not participate in or control the decision to file the 3 Information, even if he influenced the decision. DUF 31: 4 After the preliminary hearing, the District 5 Attorney hired an outside accounting expert, Cassabon & 6 Associates, as a witness for the prosecution. Plaintiff’s Response: UNDISPUTED. 7 DUF 32: 8 9 The District Attorney hired Cassabon & Associates based on its prosecutorial discretion. Supporting 10 Evidence: Exh. G, Spencer Depo., 66:7-24, 77:17-78:3; Exh. P, 11 Bacciarini Decl., ¶ 2. Plaintiff’s Response: Disputed on the identical 12 13 grounds stated in response to DUF 10. Court Ruling: DUF 32 is UNDISPUTED. 14 Plaintiff’s 15 evidence does not contradict that the District Attorney hired 16 Cassabon & Associates to provide expert services and testimony 17 for the prosecution and provides no evidence that Abbate had any 18 participation in that decision. DUF 33: 19 Cassabon & Associates’ assignment was to 20 analyze daily register records to determine if anything was 21 suspicious with the transactions taking place at Yosemite 22 Chevron. 23 B, Jury Trial Transcript, 320:19-22. 24 Supporting Evidence: Exh. T, Fung Depo., 20:9-19; Exh. Plaintiff’s Response: Disputed. As defendant Fung 25 testified at the criminal trial, his assignment was “to 26 determine whether there [were] assets misappropriated at the 27 1 Yosemite Chevron gas station, and if any, estimate the amount of 2 . . . embezzlement.” Trial Transcript, p. 320. In his deposition, 3 Fung described his assignment as “[t]racing the money.” Fung 4 Deposition, p. 12. Court Ruling: DISPUTED. 5 Defendants’ 6 characterization of the employment of Cassabon & Associates is 7 too limited; it included a fraud investigation, calculating the 8 amount of loss, and tracing the money. DUF 34: 9 Cassabon & Associates went through the daily 10 register records (Pay Point Reports) to analyze the frequency of 11 voided transactions in relationship to the total amount of sales 12 transactions among the various employees. Plaintiff’s Response: UNDISPUTED. 13 DUF 35: 14 Victor Fung (“Fung”), of Cassabon & 15 Associates, performed an analysis of Yosemite Chevron’s daily 16 register records (Pay Point Reports) and determined that Fenters 17 embezzled cash from Yosemite Chevron, as memorialized in his 18 Report of October 31, 2004. 19 Trial Transcript, 320:23:321:9. 322:1-10, 344:3-10 Supporting Evidence: Ex. B, Jury Plaintiff’s Response: 20 Disputed. Fung did not 21 “determine” anything, but merely reached an opinion that cash was 22 taken. 23 considering a number of factors, including how voids could occur, 24 whether multiple employees worked on the register during a given 25 shift, the internal controls of the business, and the videotapes 26 that would have shown what the ordinary course of business was. Additionally, Fung reached this opinion without 28 1 Trial Transcript, pp. 345-354. Fung attributed all of the voids 2 on the shifts Fenters worked to her, even though there was 3 preceding trial testimony that established that multiple 4 employees worked and used the register each shift. See Trial 5 Testimony, pp. 242, 347, 349. 6 plaintiff’s accounting expert, John Bettercourt, testified that 7 it was necessary for a forensic accountant under the 8 circumstances presented to evaluate the internal controls of the 9 subject business, as well as its cash register policies, both as During the criminal trial, 10 written and practiced. See Trial Transcript, p. 521-522. 11 Bettencourt visited Yosemite Chevron posing as a customer five 12 times and found internal controls lacking, with multiple 13 employees working the cash register during a given shift. See 14 Trial Transcript, pp. 528. As many as eight people were found to 15 use a register during a two shift period. See Trial Transcript, 16 pp. 537-538. Bettencourt also found that Fung’s reliance on an 17 “acceptable void” figure to be specious because nine of the 18 twelve employees exceeded that average, and, under Fung’s 19 criteria, would have been stealing. See Trial Transcript, pp. 20 544. 21 trained as a forensic accountant and had only been a CPA for two 22 months at the time he was assigned the Fenters case. Fung 23 Deposition, pp. 14, 17. Fung was not attempting to follow 24 any accounting standards or protocols in this case. Fung 25 Deposition, p. 15. Fung did not contact Abbate or anyone else 26 affiliated with Yosemite Chevron. Fung Deposition, p. 23. Fung In his deposition, Fung acknowledged that he was not 29 1 never visited the business location, reviewed the model cash 2 register used at the business, or reviewed any surveillance 3 videos from the business. Fung Deposition, p. 23-24. 4 did not review any financial or profit/loss statements of 5 Yosemite Chevron. Fung Deposition, p. 24. No one ever offered 6 these documents to Fung, and he did not request them. Fung 7 Deposition, p. 25, 62. Fung also did not receive a list of 8 Yosemite Chevron employees. Fung Deposition, p. 25. 9 described his approach to his assignment as figuring out the Fung also Fung 10 frequency of void transactions in relation to the total sales 11 transactions and then make an employee by employee comparison. 12 Fung Deposition, p. 30. Fung only reviewed the pay point reports 13 and the criminal report, which included Abbate’s spreadsheet. 14 Fung Deposition, p. 23, 31. Fung assumed that an employee who 15 signed a pay point report was responsible for every transaction 16 reflected therein, even though he never tested that assumption. 17 Fung Deposition, p. 40. Fung considered the possibility that a 18 pay point report might reflect more than one employee’s work 19 product but discounted it in his methodology, based on the 20 further assumption that “that chance is the same for all 21 employees.” Fung Deposition, p. 41,43. Fung felt this variable 22 could be discounted even if certain employees were intentionally 23 stealing and were therefore trying to conceal their identities. 24 Fung Deposition, p. 42-43. Fung did not take any action in an 25 attempt to validate this assumption, such as sampling reports or 26 interviewing employees. Fung Deposition, p. 45. Fung also did not 30 1 consider that different numbers of people worked different 2 shifts. Fung Deposition, p. 46-47. 3 days and shifts on which inventory was recorded in his 4 analysis. Fung Deposition, p. 52. Fung also did nothing to assess 5 the quality of the controls in place at Yosemite Chevron, 6 although he recognized that this could affect the reliability of 7 the records he reviewed. Fung Deposition, p. 53-54. 8 Fung’s approach was similar to the Abbate’s spreadsheet approach. 9 Bacciarini Deposition, p. 14. Fung did not consider the Overall, In Bettencourt’s expert report, he 10 declared that the spreadsheet provided by defendant Robert Abbate 11 and the work product of Cassabon were indicative of false, 12 fabricated and/or misleading work product Bettencourt opined that 13 the defendants' accounting work was not merely substandard or 14 negligent but instead is reflective of false, fabricated, and/or 15 misleading work. See Bettencourt Report, Exhibit A. 16 deposition, Bettencourt confirmed his report and further 17 testified that Abbate’s and Cassabon’s work product 18 was misleading and misstated the evidence. See Bettencourt 19 Deposition, pp. 20 was not reasonable or in good faith actions to attribute all of 21 the voids on a particular shift to a specific employee. 22 Bettencourt Deposition, p. 157-158, 161. Both Abbate’s 23 spreadsheet and Fung’s report were similar in this respect. 24 Bettencourt Deposition, p. 160, 161. Bettencourt is of the 25 opinion that these actions could raise an inference of bad faith 26 that could be found by a jury. Bettencourt Deposition, p. 163. In his 33, 38, 78, 97. Bettencourt testified that it 31 1 Court Ruling: DUF 35 is UNDISPUTED that Fung 2 analyzed the daily register records (Pay Point Reports) and 3 opined that Fenters embezzled cash from Yosemite Chevron, as 4 memorialized in his Report of October 31, 2004. 5 claims her evidence shows that Fung’s analysis was incomplete, 6 dishonest and incompetent, does not contradict this fact. DUF 36: 7 That Plaintiff Fung did not rely upon the spreadsheet or 8 analysis of Robert Abbate in preparing his Report in the criminal 9 action. Supporting Evidence: Exh. B, Jury Trial Transcript, 320- 10 321:9; Exh. T, Bettancourt Depo., 85:7-11, 121:6-8; Exh. S, Fung 11 Decl. ¶ 16. Plaintiff’s Response: Disputed. Fung testified in 12 13 his deposition that the first thing he did after Cassabon’s 14 retention was to meet with defendant Hutton and the then assigned 15 prosecutor, James Swanson. Fung Deposition, p. 18. 16 hour meeting, Fung was told that the prosecution suspected that 17 Fenters was stealing money by voiding transactions. Fung 18 Deposition, p. 18. 19 to analyze the pay point reports, a box of which he received on 20 that occasion. Fung Deposition, p. 20. Fung also received 21 Hutton’s report which had Abbate’s spreadsheet as an attachment. 22 Fung Deposition, pp. 19, 22. Fung was told the attachment was a 23 spreadsheet prepared by Abbate himself. Fung Deposition, p. 22. 24 Overall, Fung’s approach was similar to the Abbate’s spreadsheet 25 approach. 26 During a one Fung was told the prosecution wanted him Bacciarini Deposition, p. 14. Court Ruling: DUF 36 is DISPUTED. 32 Plaintiff’s 1 evidence raises a question of fact that Fung relied on or 2 analyzed Abbate’s spreadsheet and attached to Hutton’s report. 3 DUF 38: Fung decided on the methodology to 4 be utilized for his analysis. 5 Depo., 30:10-15, 35:15-17, 36:5-11; Exh. S, Fung Decl. ¶ 6; Exh. 6 U, Bettancourt Depo. 45:4-10 7 8 9 Supporting Evidence: Exh. T, Fung Plaintiff’s Response: Disputed on the identical grounds stated in response to DUF 37. Court Ruling: DUF 38 is DISPUTED. Plaintiff’s 10 evidence permits the inference that Fung was so inexperienced and 11 incompetent as to raise a question of fact that Fung decided the 12 methodology utilized for his analysis. 13 14 15 16 DUF 39: Cassabon & Associates, including Fung, had no contact with Abbate at any time regarding the criminal action. Plaintiff’s Response: UNDISPUTED. DUF 40: Fung was not told anything about the 17 individual who was the principal for the victim, Yosemite 18 Chevron, during the course of his work in the criminal action. 19 Supporting Evidence: Exh. T, Fung Depo., 60:16-19. 20 21 22 Plaintiff’s Response: Disputed on the identical grounds stated in response to DUF 37. Court Ruling: DUF 40 is UNDISPUTED. Plaintiff’s 23 evidence does not contradict Fung’s deposition testimony that he 24 was not told anything about Abbate. 25 26 DUF 41: Cassabon & Associates, including Fung, never went to Yosemite Chevron as part of their work in 33 1 People v. Fenters. Plaintiff’s Response: UNDISPUTED. 2 DUF 42: 3 Cassabon & Associates, including Fung, never 4 contacted any employees from Yosemite Chevron as part of their 5 work in People v. Fenters. Plaintiff’s Response: UNDISPUTED. 6 DUF 43: 7 8 bookkeeper that had any relationship with Yosemite Chevron. Plaintiff’s Response: UNDISPUTED. 9 DUF 44: 10 11 Fung never contacted any accountant or Bacciarini never discussed the Abbate family with Fung or Cassabon & Associates. Plaintiff’s Response: UNDISPUTED. 12 DUF 45: 13 Fung did not have any contact with members of 14 the Abbate family during the course of his work in the criminal 15 action. Plaintiff’s Response: UNDISPUTED. 16 DUF 46: 17 18 were not provided to him. Plaintiff’s Response: UNDISPUTED. 19 DUF 47: 20 21 Fung never asked to review any materials that The criminal trial in People v. Fenters took place between October 5 to 13, 2005. Plaintiff’s Response: UNDISPUTED. 22 DUF 48: 23 Bacciarini did not mention or reference 24 the Abbate Spreadsheet in his Opening Statement at the criminal 25 trial. 26 181; Exh. I, Bacciarini Depo., 72:6-25. Supporting Evidence: Exh. B, Jury Trial Transcript, 171- 34 Plaintiff’s Response: 1 Disputed. As the transcript 2 of the opening statement at trial shows, Bacciarini argued for 3 Fenters’ guilt based on several factors, not merely the financial 4 analysis performed by Cassabon. Bacciarini also recalls that 5 Abbate’s financial analysis was part of his presentation at both 6 the preliminary hearing and at trial. Bacciarini Deposition,. 7 83-84. 8 9 Court Ruling: DUF 48 is UNDISPUTED. Plaintiff’s evidence does not contradict that Bacciarini did not mention or 10 refer to the Abbate Spreadsheet in his opening statement. 11 Bacciarini’s deposition testimony cited by Plaintiff does not 12 state that Bacciarini relied on Abbate’s analysis at trial. 13 DUF 49: In his Opening Statement, Bacciarini argued 14 Fenters was guilty based on Fung’s Report. 15 Exh. B, Jury Trial Transcript, 171-181. 16 17 Supporting Evidence: Plaintiff’s Response: Disputed on identical grounds stated in response to DUF 48. 18 Court Ruling: DUF 49 is DISPUTED to the extent 19 that Bacciarini relied on other factors as well as the report 20 prepared by Fung; but UNDISPUTED that Bacciarini did not refer to 21 the Abbate Spreadsheet. 22 DUF 50: At the criminal trial, Bacciarini relied 23 upon Cassabon & Associates’ analysis of Yosemite Chevron’s daily 24 register records. 25 Transcript, 171-181, 318-363, 642-657, 694, 697, 198-224, 222:22- 26 255, 245-250; Exh. I, Bacciarini Depo., 72:2-19. Supporting Evidence: Exh. B, Jury Trial 35 Plaintiff’s Response: Disputed on identical 1 2 grounds stated in response to DUF 48. Court Ruling: DUF 50 is UNDISPUTED. 3 Plaintiff’s 4 evidence does not contradict that Bacciarini relied, at least in 5 part, on Fung’s report. DUF 51: 6 The District Attorney did not mark or 7 introduce the Abbate Spreadsheet into evidence at the criminal 8 trial. Plaintiff’s Response: 9 Disputed. Bacciarini 10 recalls that Abbate testified at both the preliminary hearing 11 and the criminal trial regarding his financial analysis. 12 Bacciarini Deposition, p. 83-84. 13 similar to the Abbate’s spreadsheet approach. 14 Deposition, p. 14. Overall, Fung’s approach was Bacciarini Court Ruling: DUF 51 is UNDISPUTED. 15 Abbate’s 16 testimony at the preliminary hearing is irrelevant to DUF 51 17 because his spreadsheet was ruled inadmissible at the preliminary 18 hearing. 19 of Abbate’s spreadsheet at the criminal trial. 20 presents no evidence that the Abbate Spreadsheet was introduced 21 at the criminal trial. 22 More importantly, DUF 51 pertains to the introduction DUF 52: Plaintiff During the criminal trial, the District 23 Attorney did not ask Abbate to testify about his analysis or 24 findings from the Abbate Spreadsheet. 25 B, Jury Trial Transcript 198-224, 222:22-255, 245-250; Exh. I, 26 Bacciarini Depo., 72:6-19. 36 Supporting Evidence: Exh. Plaintiff’s Response: Disputed. Bacciarini recalls 1 2 that Abbate testified at both the preliminary hearing and the 3 criminal trial regarding his financial analysis. Bacciarini 4 Deposition, p. 83-84. 5 into Fenters’ and Aceves’ voided transactions on pages 221-222 of 6 the criminal trial transcript. Even though he did not make 7 specific reference to his spreadsheet, Abbate did testify about 8 his findings and underlying methodology. 9 direct examination testimony that the defense was able to Abbate testified about his investigation It is because of this 10 question Abbate about the spreadsheet itself on cross 11 examination. 12 acknowledges this took place. Hutton Deposition, p. 82. 13 14 15 16 See Trial Transcript, pp. 236-241. Even Hutton Court Ruling: DISPUTED. DUF 53: During the criminal trial, Fung did not testify about the calculations or analysis made by Abbate. Plaintiff’s Response: Disputed, as Bacciarini 17 recalls that Fung’s approach was similar to the Abbate’s 18 spreadsheet approach. Bacciarini Deposition, p. 14. 19 Court Ruling: DUF 53 is UNDISPUTED. Plaintiff 20 points to no testimony by Fung, which speaks of itself, 21 pertaining to the calculations or analysis made by Abbate; that 22 the Cassabon Defendants’ analysis was similar to that of Abbate 23 does not negate that Fung did not testify about Abbate’s 24 calculations or analysis. 25 26 DUF 54: Bacciarini did not mention or reference the Abbate Spreadsheet in his Closing Statement at the criminal 37 1 trial. Plaintiff’s Response: 2 Disputed. As the transcript 3 of the trial shows, Bacciarini argued for Fenters’ guilt 4 based on several factors, not only the financial analysis 5 performed by Cassabon. 6 financial analysis was part of his presentation at both the 7 preliminary hearing and at trial. Bacciarini Deposition, 8 83-84. Bacciarini also recalls that Abbate’s Court Ruling: DUF 54 is UNDISPUTED. 9 Plaintiff’s 10 evidence does not contradict that Bacciarini did not mention or 11 reference the Abbate Spreadsheet during his closing argument. 12 DUF 55: In his Closing Statement, Bacciarini argued 13 Fenters was guilty based on the Fung Report and Aceves 14 statements. 15 642-657, 694-697. 16 17 18 Supporting Evidence: Exh. B, Jury Trial Transcript Plaintiff’s Response: Disputed on identical grounds stated in response to DUF 54. Court Ruling: DUF 55 is UNDISPUTED that Bacciarini 19 relied primarily on the Fung report and the Aceves statements in 20 his closing argument. 21 DUF 56: The first time Aceves told anyone from the 22 District Attorney’s office that Fenters was not involved in the 23 voiding transaction scheme was during the criminal trial. 24 Supporting Evidence: Exh. I, Bacciarini Depo., 47:6-48:5; Exh. B, 25 Jury Trial Transcript 648:9-17; Exh. F, Aceves Depo., 69:11-25, 26 70:13-20, 185:23-186:15, 129:13-132:18. 38 1 Plaintiff’s Response: Disputed. Defendant Hutton 2 was present at the June 4, 2003 meeting when Aceves only 3 mentioned Fenters because she was first suggested by Abbate 4 himself. See Trial Transcript, p 268, 270, 272. Abbate indicated 5 that Aceves could receive a shorter sentence if he helped make 6 the case against Fenters easier. See Trial Transcript, p. 294. 7 The prosecution echoed this offer. Bacciarini Deposition, p. 8 64. Abbate also told Aceves that if Aceves could get evidence to 9 convict Fenters that he could benefit in his own case, in part in 10 order to “lure him in.” See Trial Transcript, pp. 295; Abbate 11 Deposition, p. 107. There is thus ample evidence that Abbate 12 suggested Fenters as a possible embezzler and that Aceves never 13 implicated her of his own accord. There is thus evidence that 14 Hutton, who was present for the interview, was on notice of 15 these facts as of June 2003. 16 Court Ruling: DUF 56 is UNDISPUTED. The 17 transcript of the June 4, 2003 interview between Aceves, Abbate 18 and Hutton does not support Plaintiff’s assertions. 19 transcript is clear that Aceves was the first person to mention 20 Fenters as a participant in Aceves’ scheme to embezzle from 21 Yosemite Chevron. 22 contradict the evidence that the first time Aceves told anyone 23 from the District Attorney’s office that Fenters was not involved 24 in the voiding transaction scheme was during the criminal trial 25 26 DUF 57: The Further, Plaintiff’s evidence does not Aceves never told Abbate that he was not telling the truth when he said Fenters had taught him how to 39 1 steal. Supporting Evidence: Exh. F, Aceves Depo. 69-11:25, 2 70:13-20, 185:23-186:15, 129:13-132:18. Plaintiff’s Response: Disputed on identical 3 4 grounds stated in response to DUF 16. Court Ruling: DUF 57 is UNDISPUTED. 5 Plaintiff’s 6 evidence does not contradict Aceves deposition testimony that he 7 did not tell Abbate that he was lying about Plaintiff. 8 9 10 DUF 58: of the criminal case against Fenters. Supporting Evidence: Exh. I, Bacciarini Depo. 74:15-17. Plaintiff’s Response: Disputed on identical 11 12 Abbate was not in charge of the investigation grounds stated in response to DUF 10. Court Ruling: DUF 58 is UNDISPUTED as there is not 13 14 evidence that Abbate was in charge of the investigation of the 15 criminal case, even though there is evidence from which it may be 16 inferred that Abbate influenced the investigation. 17 DUF 59: It was within the District Attorney’s 18 Office, including its investigators, discretion to determine what 19 evidence to gather to prosecute Fenters. Plaintiff’s Response: Disputed on identical 20 21 grounds stated in response to DUF 10. 22 Court Ruling: DUF 59 is UNDISPUTED. 23 there is evidence that Abbate sought to influence the prosecution 24 and trial of Plaintiff, those decisions were made by the 25 prosecution. 26 DUF 60: Although From commencement of the criminal action until 40 1 its conclusion, the District Attorney’s office had the discretion 2 whether to file the complaint and information, prosecute, dismiss 3 or plea bargain. Plaintiff’s Response: Disputed on identical 4 5 grounds states in response to DUF 10. 6 Court Ruling: DUF 60 is UNDISPUTED. 7 there is evidence that Abbate sought to influence the prosecution 8 and trial of Plaintiff, those decisions were made by the 9 prosecution. DUF 61: 10 Although Deputy District Attorney Bacciarini did not 11 prosecute the case any differently because the victim was a 12 member of the Abbate family. Plaintiff’s Response: 13 Disputed. Bacciarini 14 testified that he did not know why Abbate’s complaint did not 15 go to the Merced Police Department first. 16 p. 55. Hutton acknowledges that Abbate could have taken his 17 allegations to the Merced Police Department instead of the 18 District Attorney’s Office. Hutton Deposition, p. 45. Moreover, 19 the District Attorney’s Office has directed similar potential 20 cases to the Merced PD. See Exhibit B, Email communication from 21 the Merced DA’s Office re: a potential embezzlement case in the 22 City of Merced. Spencer could not provide only two examples of 23 embezzlement cases in the last five years of his tenure where his 24 officer was the lead investigating agency. Spencer Deposition, 25 p. 35-38. 26 Bacciarini Deposition, Court Ruling: DUF 63 is UNDISPUTED. 41 Plaintiff’s 1 evidence does not show whether Baccarini’s prosecution of the 2 criminal case was different from other cases he prosecuted. 3 4 DUF 62: decision to proceed to trial. Plaintiff’s Response: Disputed on identical 5 6 Abbate did not control the District Attorney’s grounds stated in response to DUF 10. Court Ruling: DUF 62 is UNDISPUTED. Plaintiff’s 7 8 evidence does not raise an inference that Abbate controlled the 9 District Attorney’s decision to proceed to trial, although there 10 11 is evidence that Abbate sought to influence the prosecution. DUF 63: The District Attorney did not prosecute or 12 take the criminal case to trial due to pressure from Robert 13 Abbate or the Abbate family. 14 Spencer Depo. 73:1-8; Exh. J, Souza Depo., 31:8-12, 126:19- 15 127:13, 158:16-22, 40:14-18, 102:15-20; Exh. W, Hutchins Depo., 16 25:21-25, 29:20-30:1, 44:23-45:17, 46:16-48:15; Exh. U, 17 Bettancourt Depo., 26:25-27:4, 28:13-17, 31:6-10, 33:16-21, Exp. 18 P, Bacciarini Decl. ¶ 5; Exh. E, Plaintiff Depo., 14:14-17, 19 16:19-17-25. 20 21 22 Supporting Evidence: Exh. G, Plaintiff’s Response: Disputed on identical grounds stated in response to DUF 10. Court Ruling: DUF 65 is UNDISPUTED. Plaintiff’s 23 evidence does not contradict that Plaintiff was not prosecuted 24 only because of pressure from Abbate or the Abbate family, 25 although there is evidence from which it may be inferred that 26 Abbate sought to influence the prosecution. 42 1 2 3 4 5 DUF 64: The District Attorney relied upon Aceves’ confession and statements in prosecuting Fenters. Plaintiff’s Response: Disputed on identical grounds stated in response to DUF 10 and DUF 48. Court Ruling: DUF 64 is UNDISPUTED. Plaintiff’s 6 evidence does not contradict that the prosecution relied on and 7 used the Aceves’ statements in prosecuting Plaintiff. 8 9 10 11 12 13 DUF 65: The District Attorney also relied upon the forensic accounting performed by Cassabon & Associates to prosecute Fenters. Plaintiff’s Response: Disputed on identical grounds stated in response to DUF 48. Court Ruling: DUF 65 is UNDISPUTED that the 14 prosecution relied on Cassabon’s Fung Report and work in 15 prosecuting Plaintiff. 16 DUF 66: Bacciarini would have prosecuted and taken 17 this matter to trial based alone on the statements of Aceves and 18 evaluation done by Cassabon & Associates. 19 20 21 22 23 Plaintiff’s Response: Disputed on identical grounds stated in response to DUF 10. Court Ruling: DISPUTED based on Abbate’s participation in the investigation. DUF 67: If Abbate never would have prepared a 24 spreadsheet, Bacciarini would still have prosecuted and taken 25 this matter to trial based on the statement of Aceves and Report 26 of Cassabon & Associates. 43 Plaintiff’s Response: Disputed on identical 1 2 grounds stated in response to DUF 10. Court Ruling: DISPUTED. 3 DUF 68: 4 The only post-verdict contract Bacciarini had 5 with Robert Abbate was when he called Abbate and told him about 6 the not guilty verdict, to which Abbate had no specific reaction. Plaintiff’s Response: UNDISPUTED. 7 DUF 69: 8 9 10 Bacciarini never spoke to any member of the Abbate family in relation to the criminal matter other than Robert Abbate. Plaintiff’s Response: UNDISPUTED. 11 DUF 70: 12 Bacciarini did not know Robert Abbate, or any 13 Abbate family member, prior to becoming involved in the criminal 14 action. 15 16 Plaintiff’s Response: UNDISPUTED. DUF 71: Bacciarini was not aware of any relationship 17 between Gordon Spencer and Robert Abbate or the Abbate family 18 during the criminal action. 19 Bacciarini Depo., 39:11-19. 20 Supporting Evidence: Exh. I, Plaintiff’s Response: Disputed. Plaintiff saw 21 Abbate, Bacciarini and Spencer having conversations outside 22 of court in connection with her court appearances. Plaintiff’s 23 Deposition, p. 32-34. 24 Court Ruling: DUF 71 is UNDISPUTED. Plaintiff 25 merely saw the District Attorney, the prosecutor and Robert 26 Abbate conversing outside the courtroom during her criminal 44 1 trial. Plaintiff does not testify as to the content of those 2 conversations; this evidence does not contradict Bacciarini’s 3 testimony that he was unaware of any relationship between Spencer 4 and Abbate during the criminal trial. DUF 72: 5 Bacciarini was never told by anyone to 6 prosecute the case differently because the victim was Robert 7 Abbate or a member of the Abbate family. 8 Exh. I, Bacciarini Depo., 70:19-22; 71:7-10, 67:8-17. Plaintiff’s Response: 9 Supporting Evidence: Disputed, as there is ample 10 circumstantial evidence that this case was not handled in the 11 normal manner. Disputed. Bacciarini testified that he did not 12 know why Abbate’s complaint did not go to the Merced Police 13 Department first. Bacciarini Deposition, p. 55. Hutton 14 acknowledges that Abbate could have taken his allegations to the 15 Merced Police Department instead of the District Attorney’s 16 Office. Hutton Deposition, p. 45. Moreover, the District 17 Attorney’s Office has directed similar potential cases to the 18 Merced PD. See Exhibit B, Email communication from the Merced 19 DA’s Office re: a potential embezzlement case in the City of 20 Merced. 21 embezzlement cases in the last five years of his tenure where his 22 officer was the lead investigating agency. 23 p. 35-38. 24 Spencer could not provide only two examples of Spencer Deposition, Court Ruling: DUF 72 is UNDISPUTED. Plaintiff’s 25 evidence relates to the investigation of Abbate’s complaint, not 26 to the prosecution of the criminal charge eventually brought 45 1 against her. Plaintiff presents no evidence of what statement, 2 if any, was made to Bacciarini about prosecuting the case. DUF 73: 3 No one ever told Bacciarini to fabricate 4 evidence to support the charges against Fenters. 5 Evidence: Exh. I, Bacciarini Depo., 71:3-6, 73:2-4. Plaintiff’s Response: Disputed on identical 6 7 grounds stated in response to DUF 10. Court Ruling: DUF 73 is UNDISPUTED. 8 9 Supporting Plaintiff’s evidence pertains to the investigation conducted by Abbate and 10 Hutton and does not evidence that Bacciarini was told to 11 fabricate evidence to support the criminal charge against 12 Plaintiff. 13 14 15 DUF 74: Abbate did not fabricate any Pay Point Reports to show embezzlement. Plaintiff’s Response: Disputed, as the evidence 16 shows the bad faith of the spreadsheet document. 17 the Cassabon firm was retained after the preliminary hearing, the 18 District Attorney’s Office relied on Abbate to review the 19 financial information pertinent to the case against Fenters. 20 Hutton Deposition, p. 33-34. Abbate’s financial analysis was one 21 of the reasons that Hutton submitted the case against Fenters 22 for filing. Hutton Deposition, p. 82. 23 spreadsheet was the only financial evidence then available in a 24 prospective financial crime case. Hutton Deposition, pp. 82-83. 25 Abbate conceded on cross-examination at the preliminary hearing 26 that the voids attributable to Fenters were overstated in his 46 Until the time Indeed, the Abbate 1 spreadsheet. See Preliminary Hearing Transcript, pp. 52-59. 2 Abbate also conceded that certain entries in his spreadsheet 3 appeared to be entered wrongly, and he spent no time reviewing 4 the initial draft spreadsheet he prepared. 5 hearing Transcript, pp. 60-61; Abbate Deposition, p. 60, 64. 6 Abbate also attributed certain shifts to Fenters, even though the 7 underlying pay point reports did not contain her genuine 8 signature. See Trial Transcript, pp. 491-492. 9 not provide any tax returns or other financial documents See Preliminary Abbate also did 10 reflecting a drop in revenues during the time when the 11 embezzlement was allegedly occurring. Hutton Deposition, p. 12 22. Abbate also did not provide Hutton with any videotapes from 13 the register area. Hutton Deposition, p. 23. This is further 14 circumstantial evidence of his intent to conceal the truth and 15 unduly influence the criminal proceedings against Fenters. 16 17 18 Court Ruling: DISPUTED. This is a matter for resolution by the trier of fact. DUF 75: Plaintiff’s Accounting Expert, John 19 Bettencourt (“Bettencourt”), testified that he has performed no 20 analysis on the Abbate Spreadsheet since the preliminary 21 hearing because it was ruled inadmissible. 22 23 Plaintiff’s Response: UNDISPUTED. DUF 76: Bettencourt testified that he found 24 numerical error in the Abbate Spreadsheet which may all be 25 innocent mistakes. 26 Depo., 56:3-6, 75:10-77:11. Supporting Evidence: Exh. U, Bettancourt 47 Plaintiff’s Response: 1 Disputed. In Bettencourt’s 2 expert report, he declared that the spreadsheet provided by 3 defendant Robert Abbate and the work product of Cassabon were 4 indicative of false, fabricated and/or misleading work product. 5 Bettencourt opined that the defendants' accounting work was not 6 merely substandard or negligent but instead is reflective of 7 false, fabricated, and/or misleading work. See Bettencourt 8 Report, Exhibit A. 9 his report and further testified that Abbate’s and Cassabon’s In his deposition, Bettencourt confirmed 10 work product was misleading and misstated the evidence. See 11 Bettencourt Deposition, pp. 33, 38, 78, 97. Bettencourt testified 12 that it was not reasonable or in good faith actions to attribute 13 all of the voids on a particular shift to a specific employee. 14 Bettencourt Deposition, p. 157-158, 161. Both Abbate’s 15 spreadsheet and Fung’s report were similar in this respect. 16 Bettencourt Deposition, p. 160, 161. Bettencourt is of the 17 opinion that these actions could raise an inference of bad faith 18 that could be found by a jury. Bettencourt Deposition, p. 19 163. 20 21 Court Ruling: DISPUTED. DUF 77: Bettencourt testified that he is offering 22 an opinion that Abbate made numerical errors in the Abbate 23 Spreadsheet, but he is not offering an opinion that Abbate 24 deliberately fabricated the Spreadsheet. 25 Exh. U, Bettancourt Depo., 99:2-19, 123:5-10, 123:5-125:12. 26 Supporting Evidence: Plaintiff’s Response: Disputed on identical 48 1 grounds stated in response to DUF 76. Court Ruling: DISPUTED. 2 3 DUF 78: Bettencourt has no knowledge that Abbate 4 deliberately fabricated any numbers in his analysis or 5 spreadsheet. 6 99:2-19, 114:1-5, 146:10-20, Exh. E., Plaintiff Depo. 68:23-69:3. Plaintiff’s Response: Disputed on identical 7 8 grounds stated in response to DUF 76. Court Ruling: DISPUTED. 9 10 Supporting Evidence: Exh. U, Bettancourt Depo. DUF 79: Bettencourt did not perform any analysis of 11 the errors in the Abbate Spreadsheet that would show a pattern of 12 bias indicating that Abbate was attempting to falsify charges of 13 embezzlement against Fenters. 14 Bettancourt Depo., 101:3-108:13, 109:5-110:5, 126:16-128:7. Plaintiff’s Response: Disputed on identical 15 16 grounds stated in response to DUF 76. Court Ruling: DISPUTED. 17 18 Supporting Evidence: Exh. U, DUF 80: Bettencourt did not perform any analysis of 19 the materiality of the errors in the Abbate Spreadsheet that 20 would indicate that the errors had a greater tendency to show 21 embezzlement. 22 101:3-108:13, 109:5-111:3, 115:9-117:23, 118:16-119:5. 23 24 25 26 Supporting Evidence: Exh. U, Bettancourt Depo., Plaintiff’s Response: Disputed on identical grounds stated in response to DUF 76. Court Ruling: DISPUTED. DUF 81: Bettencourt did not perform any analysis to 49 1 determine if a different conclusion should have been reached as 2 to embezzlement if the purported errors made by Abbate had been 3 corrected in the Abbate Spreadsheet. 4 U, Bettancourt Depo., 126:16-128:7, 129:1-5. Plaintiff’s Response: Disputed on identical 5 6 grounds stated in response to DUF 76. Court Ruling: DUF 81 is UNDISPUTED; Plaintiff’s 7 8 9 Supporting Evidence: Exh. evidence does not contradict Bettancourt’s deposition testimony. DUF 82: Bettencourt did not perform any analysis on 10 whether Abbate’s purported error of listing no midshift, where 11 there was a dual shift, had a material impact or was indicative 12 of misleading work. 13 Depo., 102:9-103:24. Plaintiff’s Response: Disputed on identical 14 15 grounds stated in response to DUF 76. Court Ruling: DUF 82 is UNDISPUTED; Plaintiff’s 16 17 18 Supporting Evidence: Exh. U, Bettancourt evidence does not contradict Bettancourt’s deposition testimony. DUF 83: Bettencourt testified that he has not formed 19 an opinion as to whether the Abbate Spreadsheet was false or 20 fabricated because that goes to state of mind. 21 Evidence: Exh. U, Bettancourt Depo., 96:6-97:17. Plaintiff’s Response: Disputed on identical 22 23 grounds stated in response to DUF 76. Court Ruling: DUF 83 is UNDISPUTED; Plaintiff’s 24 25 26 Supporting evidence does not contradict Bettancourt’s deposition testimony. 2. Issue No. 2: Plaintiff Cannot Maintain a Claim for 50 1 Malicious Prosecution Because She Cannot Meet the Requisite 2 Elements. DUF 84: 3 4 reference Fact Nos. 1-83 and 87-103. Plaintiff’s Responses and Court Rulings: See 5 6 The Abbate Defendants incorporate by supra. 3. 7 Issue No. 3: Plaintiff Cannot Maintain a Claim for 8 Violation of Civil Code § 52.1 Because She Cannot Meet the 9 Requisite Elements. DUF 85: 10 11 reference Fact Nos. 1-83. Plaintiff’s Responses and Court Rulings: See 12 13 14 The Abbate Defendants incorporate by supra. DUF 86: Abbate never threatened, coerced, or 15 intimidated Fenters. 16 Depo., 156:2-6; Exh. F, Aceves Depo., 144:14-22; Exh. U, 17 Bettancourt Depo., 138:24-139:11; Exh. X, Plaintiff’s Responses 18 to Robert Abbate’s Special Interrogatories, Set One, No. 5. 19 Supporting Evidence: Exh. E, Plaintiff Plaintiff’s Response: Disputed. As a result of 20 Abbate’s and the other defendants’ misconduct, Fenters was 21 threatened with the prospect of conviction and incarceration. See 22 Plaintiff’s Deposition, p. 401-402. Indeed, the lead prosecutor 23 testified that he would have indeed sought to incarcerate and 24 seek full restitution against Fenters had she been convicted. See 25 Bacciarini Deposition, p. 64-66. 26 Court Ruling: UNDISPUTED. 51 There is no direct or 1 circumstantial evidence that Abbate threatened or coerced 2 Plaintiff. 4. 3 Issue No. 4: Plaintiff Cannot Maintain a Claim for 4 Violation of 29 U.S.C. § 215 Because She Cannot Meet the 5 Requisite Elements. DUF 87: 6 7 reference Fact Nos. 1-87 and 99-103. Plaintiff’s Responses and Court Rulings: See 8 9 The Abbate Defendants incorporate by supra. DUF 88: 10 Abbate brought a complaint to the District 11 Attorney’s office based on a good faith suspicion and belief that 12 Fenters had been stealing from Yosemite Chevron. 13 Evidence: Exh. A, Abbate Decl. ¶ 6; Exh. B, Bettancourt Trial 14 Testimony, 573:6-10. Plaintiff’s Response: Disputed on grounds stated 15 16 Supporting in response to DUF 10. Court Ruling: Disputed. 17 DUF 89: 18 Abbate never consulted with an attorney about 19 potential work-related complaints that could be brought by 20 Plaintiff. 21 Supporting Evidence: Exh. A, Abbate Decl. ¶ 10. Plaintiff’s Response: Disputed. Abbate was not 22 permitted to testify on this subject during his deposition 23 on privilege grounds and must now abide by that assertion of 24 privilege. See Abbate Deposition, p. 140. A party can not invoke 25 and waive privileges at his convenience, thereby using them as 26 both swords and shields in the same case. See United States v. 52 1 Rylander, 460 U.S. 752, 759 (1983); Williams v. Florida, 399 U.S. 2 78, 83-84 (1970). Court Ruling: DISPUTED. 3 DUF 90: 4 Fenters admitted her allegations, that 5 Abbate’s motive to accuse her of embezzlement was because of her 6 potential harassment lawsuit, is based on speculation. 7 Supporting Evidence: Exh. E, Plaintiff Depo. 162:6-11, 185:15-19, 8 186:10-189:5. Plaintiff’s Response: 9 Disputed, as Fenters 10 clarified in her deposition testimony that she was only 11 testifying based on her personal knowledge and did not intend to 12 characterize the entirety of her evidence. 13 Deposition, p. 400-401. The evidence set forth above shows 14 Abbate’s bad faith motive independent of what Fenters personally 15 has knowledge of. See Plaintiff’s Court Ruling: DISPUTED. 16 DUF 91: 17 Fenters did not have any conversations with 18 Abbate about her feeling that Ed Montes was harassing her at 19 work. 20 Supporting Evidence: Exh. E, Plaintiff Depo., 191;16-19. Plaintiff’s Response: Disputed. Fenters told 21 Abbate about Montes’ misconduct, and Abbate spoke with Montes 22 about it thereafter. Abbate Deposition, p. 70-71. Abbate claims 23 he thereafter did his best to ensure that Montes and Fenters did 24 not work the same shift. Abbate Deposition, p. 72. 25 Court Ruling: DUF 91 is UNDISPUTED. 26 Plaintiff testified that she had no conversations with Abbate that Montes 53 1 was harassing Plaintiff at work; Plaintiff’s evidence relates to 2 an incident reported by Plaintiff to Abbate that occurred at 3 Montes’ residence. DUF 92: 4 There is no evidence that Abbate was aware 5 that Fenters had made any complaints about Montes or any other 6 employees harassing her at work. 7 Plaintiff Depo., 191:16-19. Plaintiff’s Response: Disputed on grounds stated 8 9 Supporting Evidence: Exh. E, in response to DUF 91. Court Ruling: DUF 92 is UNDISPUTED. 10 Plaintiff 11 testified that she had no conversations with Abbate that Montes 12 was harassing Plaintiff at work; Plaintiff’s evidence relates to 13 an incident reported by Plaintiff to Abbate that occurred at 14 Montes’ residence. DUF 93: 15 Fenters never mentioned to Abbate that she 16 intended to bring a lawsuit against him. 17 Exh. E, Plaintiff Depo., 163:8-14. Plaintiff’s Response: 18 Supporting Evidence: Disputed, as Fenters 19 complained about overtime, salary and sexual harassment 20 issues to Abbate and Yosemite management, even if she made no 21 specific threat of a lawsuit. See Plaintiff’s Deposition, p. 164- 22 166, 167-168, 169-170, 172-174, 177-178, 179-180, 181-183, 188- 23 192. Court Ruling: DUF 93 is UNDISPUTED; Plaintiff 24 25 never told Abbate that she intended to file a lawsuit against 26 him. 54 1 DUF 94: Fenters never mentioned to any Yosemite 2 Chevron employee that she intended to bring a lawsuit against 3 Abbate or Yosemite Chevron. Plaintiff’s Response: Disputed on grounds stated 4 5 in response to DUF 93. Court Ruling: DUF 94 is UNDISPUTED for the same 6 7 reason as DUF 93. 8 DUF 95: 9 10 11 12 Bacciarini never heard or talked to Bruce Sousa or Abbate about any potential civil lawsuit against Abbate by Fenters. Plaintiff’s Response: UNDISPUTED. DUF 96: Aceves testified that Fenters never complained 13 to him about specific problems with working at Yosemite Chevron. 14 Supporting Evidence: Exh. F, Aceves Depo., 34:24-35:24. 15 Plaintiff’s Response: Disputed, as this fact is 16 of no significance. 17 had no contact outside of the workplace. See Aceves Deposition, 18 pp. 23-27. There is nothing suggesting that Fenters would have 19 told such a person about the subject matters at issue. 20 Aceves and Fenters were merely coworkers and Court Ruling: DUF 96 is UNDISPUTED as Plaintiff 21 admits no such conversation. 22 DUF 97: 23 24 25 26 Aceves testified that Fenters never complained to him about any of the coworkers at Yosemite Chevron. Plaintiff’s Response: Disputed on grounds stated in response to DUF 96. Court Ruling: DUF 97 is UNDISPUTED. 55 5. 1 Issue No. 5: Plaintiff Cannot Maintain a Claim for 2 Violation of 29 U.S.C. § 201 Because She Cannot Meet the 3 Requisite Elements. DUF 98: 4 5 reference Fact Nos. 1-98. Plaintiff’s Responses and Court Rulings: See 6 7 supra. DUF 99: 8 9 10 11 The Abbate Defendants incorporate by Yosemite Chevron paid all required overtime under the laws of California based on the time cards submitted by Fenters. Supporting Evidence: Exh. A, Abbate Decl. ¶ 11. Plaintiff’s Response: Disputed. Fenters 12 testified that she was not paid time and a half for overtime, 13 even if she could not at her deposition provide a calculation as 14 to that time. See Plaintiff’s Deposition, p. 305, 355-356. 15 16 Court Ruling: DISPUTED. DUF 100: Fenters has no evidence to show that 17 Yosemite Chevron’s timecards are inaccurate. 18 Evidence: Exh. E, Plaintiff Depo. 349:16-355:10. 19 20 21 22 23 Supporting Plaintiff’s Response: Disputed on grounds stated in response to DUF 99. Court Ruling: DISPUTED as per Plaintiff’s deposition testimony. DUF 101: At deposition, Fenters could not identify any 24 specific date that she was not paid for overtime. 25 Plaintiff Depo., 163:24-164:18, 349:16-355:10, 355:20-357:3. 26 Exh. E, Plaintiff’s Response: Disputed on grounds stated 56 1 in response to DUF 99. Court Ruling: DUF 101 is UNDISPUTED. 2 DUF 102: 3 At deposition, Fenters could not identify any 4 specific hour of overtime that she has not been paid for by 5 Yosemite Chevron. 6 305:1-18, 349:16-355:10, 355:20-357:3. Plaintiff’s Response: Disputed on grounds stated 7 8 Supporting Evidence: Exh. E, Plaintiff Depo., in response to DUF 99. Court Ruling: DUF 102 is UNDISPUTED. 9 DUF 103: 10 At deposition, Fenters testified that there 11 could be zero hours of overtime that have been unpaid. 12 Supporting Evidence: Exh. E, Plaintiff Depo., 305:1-18. Plaintiff’s Response: Disputed on grounds stated 13 14 in response to DUF 99. Court Ruling: DUF 103 is UNDISPUTED; Plaintiff so 15 16 testified at her deposition. 17 D. 18 The first claim for relief in the FAC alleges violations of 19 20 21 22 23 24 25 26 FIRST CLAIM FOR RELIEF FOR VIOLATION OF SECTION 1983. 42 U.S.C. § 1983 against all Defendants: 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 joint activity with and/or conspiring with Spencer and Hutton. 57 1 The Abbate Defendants move for summary judgment on the 2 grounds that the District Attorney’s Office acted with 3 independent discretion to prosecute; that Plaintiff cannot show 4 that Abbate controlled the investigation or decision to 5 prosecute; and that the Abbate Defendants are entitled to 6 absolute witness immunity. 1. 7 8 9 Smiddy Presumption. The Ninth Circuit has long recognized that “[f]iling a criminal complaint immunizes investigating officers ... from 10 damages suffered thereafter because it is presumed that the 11 prosecutor filing the complaint exercised independent judgment in 12 determining that probable cause for an accused’s arrest exists at 13 that time.” 14 Cir.1981)(Smiddy I). 15 (9th Cir.1986)(Smiddy II), the Ninth Circuit held that Smiddy had 16 not overcome this presumption because he produced no evidence 17 “that the district attorney was subjected to unreasonable 18 pressure by the police officers, or that the officers knowingly 19 withheld relevant information with the intent to harm [him], or 20 that the officers knowingly supplied false information.”2 21 explained in Newman v. County of Orange, 457 F.3d 991, 994 (9th 22 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 As Our later cases further explained the types 23 24 2 25 26 Defendants cited Alvarez-Machain v. United States, 331 F.3d 604(9 Cir.2002), as authority supporting their claim for summary judgment. The Ninth Circuit’s decision was reversed by the Supreme Court in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). th 58 1 2 3 4 5 6 7 8 9 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. .... 10 11 12 13 14 15 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 .... 16 19 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”). 17 18 24 Plaintiff argues that summary judgment is not appropriate 25 because of evidence that the Abbate Defendants fabricated 26 allegations against Plaintiff and brought them to the District 59 1 Attorney’s Office through “unconventional channels” based on a 2 preexisting personal relationship between the Abbate family and 3 Defendant Spencer; that Aceves was coerced by Abbate and 4 Defendant Hutton into falsely implicating Plaintiff; that Abbate, 5 “and to a lesser extent, Hutton,” withheld exculpatory 6 information in the spreadsheet and reports that caused the 7 prosecution against Plaintiff to be initiated; and that these 8 incidents of misconduct followed closely in time Plaintiff’s 9 resignation after complaining about wage and hour, reimbursement, 10 11 and sexual harassment issues. Defendants reply that the evidence shows that Abbate, before 12 reporting suspected embezzlement to law enforcement, caught 13 Aceves stealing money from Yosemite Chevron by falsely voiding 14 transactions. 15 he was first caught stealing because he wanted to put the blame 16 on someone else, not because of any threats or coercion, and that 17 he was not under any threats or coercion when he later implicated 18 Plaintiff during the June 4, 2003 meeting with Abbate and 19 Defendant Hutton. 20 can be offered of Abbate’s involvement in the criminal case was 21 the initial reporting of the suspected crime, providing business 22 records, participating in Defendant Hutton’s interview of Aceves, 23 and his testimony at the preliminary hearing. 24 Abbate prepared a spreadsheet with a record of voided 25 transactions that Plaintiff’s expert opines contained numerical 26 errors does not raise an inference of liability under Section Aceves testified that he implicated Plaintiff when Defendants argue that the only evidence that 60 The fact that 1 1983. Defendants contend that Plaintiff does not refute that 2 Abbate’s spreadsheet was ruled inadmissible at the preliminary 3 hearing, that the prosecuting attorney did not rely on Abbate’s 4 spreadsheet during the criminal trial, and that the District 5 Attorney’s Office retained Cassabon & Associates after the 6 preliminary hearing to evaluate Yosemite Chevron’s business 7 records and that Victor Fung was the only witness to testify at 8 the trial. 9 that the District Attorney’s Office proceeded with the Defendants argue that there is no evidence to suggest 10 prosecution or trial due to pressure from Abbate or based on 11 fabricated evidence. 12 attorney’s testimony that he would have prosecuted Plaintiff even 13 if Abbate had not prepared the spreadsheet. 14 15 16 17 Defendants refer to the prosecuting The Abbate Defendants’ motion for summary judgment on the ground of the Smiddy presumption is DENIED. 2. Control of Investigation or Prosecution. Defendants argue that summary judgment is appropriate 18 because Plaintiff cannot show that the Abbate Defendants 19 controlled the District Attorney’s Office investigation or the 20 prosecution of Plaintiff. 21 The Abbate Defendants cite Arnold v. Intern. Business 22 Machines, 637 F.2d 1350 (9th Cir.1981). 23 action against IBM and various of its employees for alleged 24 violations of Arnold’s civil rights. 25 the grant of summary judgment for defendants, holding that in the 26 absence of evidence that IBM and its employees controlled the 61 There, Arnold brought an The Ninth Circuit affirmed 1 police investigation, which led to Arnold’s arrest on charges of 2 stealing corporate documents and trade secrets and the search of 3 Arnold’s residence, the involvement of IBM and the employees in 4 the investigation was not the proximate cause of Arnold’s 5 injuries and Arnold could not recover under statutes authorizing 6 civil actions for deprivation of rights under color of law and 7 conspiracy to defraud persons of their civil rights. 8 holding, the Ninth Circuit stated: 9 10 11 12 13 14 15 16 17 18 19 In so ... It is clear that ‘but for’ IBM’s involvement, there would have been no investigation, and Arnold never would have been arrested or indicted or had his residence searched. There is nothing in the record, however, to indicate that defendants exerted any control over the decision making of the Task Force. Deputy District Attorney Bender testified that the Task Force used the information supplied by IBM to determine which companies might be in possession of IBM documents, but that the Task Force conducted a full and independent investigation. Bender and Sergeant Frechette both testified that neither Callahan nor IBM controlled the investigation. Arnold has pointed to no facts that indicate that IBM in any way controlled the police investigation or that the Task Force was in any sense a mere conduit for carrying out IBM’s will. 20 637 F.2d at 1357. The Abbate Defendants also cite Mann v. City 21 of Tucson Dept. of Police, 782 F.2d 790, 793 (9th Cir.1986), a 22 case involving dismissal, wherein the Ninth Circuit held in 23 pertinent part: 24 25 26 [D]ismissal of these claims against defendants other than the Tucson police defendants was proper for other reasons. The substantive constitutional violation charged 62 1 2 3 4 5 6 7 8 9 10 11 12 consisted of two unlawful searches of Mann’s apartment. The search was performed by the Tucson police officers. All but two of the other defendants are private persons who allegedly instigated, aided, or participated in the searches. Under Arnold v. IBM Corp., ... in order to establish the requisite proximate cause between the conduct of private persons and searches in violation of section 1983, a plaintiff must prove the private individuals exercised control over the decisionmaking in a police investigation. Mann has failed to allege that these other defendants controlled the investigation or directed that the searches be conducted, and the facts alleged would not support such a claim. For this reason, the section 1983 claims against these private defendants were properly dismissed. 782 F.2d at 793. In King v. Massarweh, 782 F.2d 825, 829 (9th Cir.1986), the 13 district court’s dismissal of a Section 1983 claim against the 14 defendant landlord was affirmed. 15 Circuit affirmed: 16 17 18 19 20 21 22 Citing Arnold, the Ninth ... Massarweh’s involvement with the police is even more attenuated [than the involvement of IBM in Arnold]. Massarweh’s sole act was to call the police. Nothing in the record indicates that Massarweh exerted any control over the officers’ decision to search appellants’ apartments or to arrest the appellants. On the facts alleged by the appellants, Massarweh sought the appellants’ removal as trespassers, but the police conduct that allegedly violated the plaintiffs’ Fourth Amendment rights took place on the officers’ own initiative. In Franklin v. Fox, 312 F.3d 423 (9th 23 782 F.2d at 829. 24 Cir.2002), the Ninth Circuit affirmed the district court’s grant 25 of summary judgment in favor of Franklin-Lipsker, the daughter of 26 plaintiff, who plaintiff alleged conspired with state prosecutors 63 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 in violation of his civil rights: Furthermore, to the extent that Franking aims to hold his daughter responsible for [District Attorney] Murray’s facilitation of the visit or trial prosecutor Tipton’s use of his jailhouse silence against him at trial, his claim fails. In order for a private individual to be liable for a § 1983 violation when a state actor commits the challenged conduct, the plaintiff must establish that the private individual was the proximate cause of the violation .... Arnold ... is instructive. There a task force including law enforcement officials, the district attorney, and an IBM security manager investigated trade secret leaks from within IBM. After his arrest and indictment and the search of his home, the plaintiff sued IBM under § 1983 based on his involvement with the investigation. We held that, although IBM provided the task force with its security manager, information, funding, and grand jury witnesses, the company was not the proximate cause of the plaintiff’s injuries because it did not direct the task force to take action against him .... Here, there is no evidence that Murray and Tipton were under Franklin-Lipsker’s control or that they failed to exercise their own independent judgment when they violated Franklin’s rights. Murray’s response to Franklin-Lipsker’s request for help to visit her father and to offer her advise as to the advisability of a visit did not turn Franklin-Lipsker into a facilitator or a cause of the state’s violation. With respect to the violation at trial, one of the bases upon which Franklin’s conviction was overturned, there is no evidence that Franklin-Lipsker was even aware of Tipton’s decision to allude to Franklin’s silence during the jail visit as evidence of guilt. 24 312 F.3d at 445-446. In Crowe v. County of San Diego, the 25 district court granted summary judgment for defendant Blum, a 26 64 1 psychologist in private practice who consulted with the Escondido 2 Police Department during the murder investigation because Blum 3 did not participate in the arrests of the boys or the searches of 4 their residences and “there is absolutely no evidence that 5 defendant Blum had any control over the other defendants’ 6 decision to conduct the challenged searches and arrests.” 7 F.Supp.2d at 1063-1064. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 303 Plaintiff responds by citing Allen v. Woodford, 2006 WL 1748587 (E.D.Cal.2006): ‘Actions taken by a private individual may be “under color of state law” where there is a significant state involvement in the action.” Franklin v. Fox, 312 F.3d 423, 444 (9th Cir.2002); Johnson v. Knowles, 113 F.3d 1114, 1118 (9th Cir.1997) ... The extent of state involvement in the action is a question of fact ... The Supreme Court has articulated four distinct tests for determining whether the actions of private individuals amount to state action: 1) the public function test; 2) the joint action test; 3) the state compulsion test; and 4) the governmental nexus test. Franklin, 312 F.3d at 444-445 .... Under the public function test, a private party is viewed as a state actor if the plaintiff establishes that, in engaging in the challenged conduct, the private party performed a public function that has been ‘traditionally the exclusive prerogative of the state.’ ... Under the joint action test, state action is found where a private person is a ‘willful participant in joint activity with the State or its agents’ that effects a constitutional deprivation ... Under the state compulsion test, a private party is fairly characterized as a state actor when the state has exercised coercive power or has provided such significant encouragement, either overt or covert, that the [challenged conduct] must in law be deemed to be that of 65 1 2 3 4 5 6 7 8 9 the State ... Lastly, under the governmental nexus test, the issue is whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself .... While these factors are helpful in determining the significance of state involvement, ‘there is no specific formula for defining state action.’ ... The extent of state involvement remains a factual inquiry. ‘Only by sifting facts and weighing circumstances can the non-obvious involvement of the state in private conduct be attributed its true significance.’ 10 Plaintiff argues that evidence of Abbate’s involvement in the 11 criminal investigation suffices to raise a question of fact that 12 he was a state actor under any of the four distinct tests. 13 The parties are talking apples and oranges. Defendants move 14 for summary judgment that Abbate did not control the 15 investigation, i.e., he was not the proximate cause of the 16 decision to bring criminal charges against Plaintiff. 17 Spreadsheet was ruled inadmissible at the preliminary hearing and 18 played no part in the decision by the Superior Court to hold 19 Plaintiff to answer. 20 trial testimony, Aceves testified at his deposition that he lied 21 to Abbate and Hutton about Plaintiff’s involvement in the 22 embezzlement and did not recant his statements until the trial. 23 There is evidence that Hutton’s investigation may have been 24 incomplete and there is evidence that Hutton relied on Abbate to 25 provide the financial evidence, i.e., the Abbate Spreadsheet, to 26 substantiate the alleged embezzlement. The Abbate Although Plaintiff makes much of Aceves’ 66 There is evidence that 1 Abbate provided misleading and inaccurate information to Hutton 2 and that Abbate encouraged the prosecution. 3 Abbate and the prosecutor is less clear. 4 close call better resolved by the trier of fact. The link between This is an extremely 5 Summary judgment for the Abbate Defendants on the issue 6 whether they controlled the District Attorney’s investigation or 7 prosecution of Plaintiff is DENIED. 3. 8 9 Witness Immunity. Defendants move for summary judgment as to Plaintiff’s cause 10 of action for violation of Section 1983 on the grounds of 11 absolute witness immunity. 12 In Briscoe v. LaHue, 460 U.S. 325, 326 (1983), the Supreme 13 Court held that a witness has absolute immunity from liability 14 for civil damages under Section 1983 for giving perjured 15 testimony at trial. 16 Cir.2000), the Ninth Circuit applied Briscoe’s immunity to Terr, 17 a psychiatrist called by the prosecution who testified in 18 Franklin’s criminal trial based on charges by his daughter, 19 Franklin-Lipsker, that Franklin had murdered a childhood friend 20 twenty years earlier, and who was later sued by Franklin under 21 Section 1983. 22 others to present perjured testimony at the criminal trial. 23 Ninth Circuit held: 24 25 26 In Franklin v. Terr, 201 F.3d 1098 (9th Franklin alleged that Terr had conspired with In the instant case, Franklin is attempting to circumvent Terr’s absolute witness immunity by alleging that Terr conspired with others to present false testimony. We are persuaded that allowing a plaintiff to 67 The 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 circumvent the Briscoe rule by alleging a conspiracy to present false testimony would undermine the purposes served by granting witnesses absolute immunity from liability for damages under § 1983. Absolute witness immunity is based on the policy of protecting the judicial process and is ‘necessary to assure that judges, advocates, and witnesses can perform their respective functions without harassment or intimidation.’ ... As the Court stated in Briscoe, ‘[a] witness’s apprehension of subsequent damages liability might induce two forms of self censorship. First, witnesses might be reluctant to come forward to testify. And once a witness is on the stand, his testimony might be distorted by the fear of subsequent liability.’ ... Moreover, as the district court correctly observed, ‘[a]ny other holding would eviscerate absolute immunity since a witness rarely prepares her testimony on her own.’ Franklin alleges that Terr conspired with Franklin-Lipsker by interviewing her before Franklin’s trial and by then incorporating information obtained from those interviews into her own testimony. Franklin also alleges that Terr provided Franklin-Lipsker ‘with a description of the sort of details that would make her testimony more persuasive, which Franklin-Lipsker then incorporated into her continually evolving “recollection” of the Nason murder.’ The ostensible purpose of this conspiracy was to ensure that one person’s testimony did not contradict the other’s testimony. But because Terr’s alleged conspiratorial behavior is inextricably tied to her testimony, we find that she is immune from damages. We are not presented with, and do not decide, the question whether § 1983 provides a cause of action against a defendant who conspired to present the perjured testimony of another but did not testify as a witness herself. 24 201 F.3d at 1101-1102. 25 F.3d 975, 983 (9th Cir.2001): 26 See also Paine v. City of Lompoc, 265 Our cases and Spurlock [v. Satterfield, 167 68 F.3d 995 (6th Cir.1999)], demonstrate that ... absolute witness immunity does not shield an out-of-court, pretrial conspiracy to engage in non-testimonial acts such as fabricating or suppressing physical or documentary evidence of suppressing the identities of potential witnesses. 1 2 3 4 5 In Grey v. Poole, 275 F.3d 1113 (D.C.Cir. 2002), a social 6 worker submitted a statement to the court in connection with a 7 child neglect action. 8 Poole was entitled to absolute witness immunity, concluding that 9 “[i]t does not matter whether Poole’s sworn statement was given 10 in oral or written form; what matters is that her statement was 11 the equivalent of sworn testimony in a judicial proceeding.” 12 F.3d at 1118; see also Morstad v. Dept. of Corrections & Rehab., 13 147 F.3d 741, 744 (8th Cir.1998)(“Because the court directed 14 Veenestra to evaluate Morstad and to testify at Morstad’s 15 probation revocation hearing, we conclude that Veenstra was 16 performing functions essential to the judicial process ... and 17 affirm the district court’s determination that Veenstra was 18 entitled to absolute immunity.” 19 F.2d 1230 (7th Cir.1990), reversed on other grounds, 509 U.S. 259 20 (1993), the Seventh Circuit addressed whether three expert 21 witnesses had absolute immunity for their pretrial activities of 22 evaluating the bootprint, writing reports, discussing the case 23 with prosecutors, and preparing to testify. 24 1245. 25 26 The District of Columbia Circuit held that 275 In Buckley v. Fitzsimmons, 919 509 U.S. at 1244- The Seventh Circuit held: ... We agree with the district court that they do. Briscoe holds that the presentation of testimony may not be the basis of 69 1 2 3 4 5 6 7 8 9 10 11 12 13 liability, even if the witness deliberately misleads the court. It would be a hollow immunity if the aggrieved party could turn around and say, in effect: ‘True, your delivery of bad testimony is immunized, but preparing to deliver that testimony is not, so I can litigate the substance of your testimony.’ Substance is exactly what Briscoe puts off limits. As expert could violate a suspect’s rights independently of the litigation. The expert might, for example, break into the suspect’s home to obtain samples for analysis. Absolute immunity would not apply to that theft, for the same reason it does not apply to prosecutorial infliction of punishment without trial. A non-testimonial expert could violate a suspect’s rights by ‘cooking’ a laboratory report in a way that misleads the testimonial experts. Experts, like the police, ‘cannot hide behind [the immunity of] the officials whom they have defrauded.’ ... But nothing in the complaint suggests that the three experts hid evidence, as opposed to misinterpreting it. 14 15 16 17 18 19 20 21 22 Discussions between the prosecutors and the experts violated none of Buckley’s rights. Preparing to commit slander or perjury is not actionable. The testimony itself is covered by immunity. Buckley makes it clear that the testimony is the real gravamen of his complaint. Olsen, he submits, ‘wrongfully changed his initial opinion’; Robbins was an ‘utterly disreputable witness-for-hire.’ Maybe so, but cross-examination rather than a suit for damages is the right way to establish these things. Junk science is a plague of contemporary litigation, but the peddlers of poorly supported theories do not expose themselves to liability by doing research out of court or appearing in more than one case. 23 24 25 26 White v. Frank, 855 F.2d 956 (2nd Cir.1988) holds that Briscoe does not apply to ‘complaining witnesses’. Buckley contends that the three experts are in this category, because but for their opinions the State’s Attorney would not have obtained an 70 indictment. The parallel is not apt. None of the experts invented the report of a crime or brought the fable to the state’s attention. Jeanine Nicarico is dead. Each expert was brought into the case by the prosecutors, who sought to evaluate the strength of the evidence against Buckley. We therefore need not decide whether to follow White. 1 2 3 4 5 6 7 919 F.2d at 1245. Defendants argue that summary judgment on this ground is 8 appropriate because there is no evidence that the Abbate 9 Defendants created false ledgers, receipts, daily register 10 reports or any other records to set up Plaintiff. 11 will be able to argue is that Abbate provided false testimony as 12 the complaining witness, which is insufficient to circumvent 13 Briscoe. 14 All Plaintiff Plaintiff refers to the Order denying the Abbate Defendants’ 15 motion to dismiss the Complaint, that “[t]he Abbate Defendants 16 are not entitled to dismissal of the First Cause of Action on 17 this ground to the extent that the Complaint can be construed as 18 alleging that the Abbate Defendants fabricated evidence or 19 conspired to do so.” 20 21 22 23 24 25 26 Plaintiff contends: There is evidence that the Abbate defendants fabricated allegations against Fenters and brought them to the District Attorney’s Office through unconventional channels based on a preexisting personal relationship between the Abate [sic] family and defendant Spencer. The record also suggests that Aceves was coerced by Abbate and Hutton into falsely implicating Fenters and that these two defendants acted in bad faith in doing so. The evidence also shows that Abbate, and, to a lesser extent, Hutton, withheld exculpatory information in the spreadsheet 71 and reports that caused the prosecution against Fenters to be initiated. Finally, the evidence shows that these incidents of misconduct closely in time followed Fenters’ resignation after complaining about wage and hour, reimbursement, and sexual harassment issues. These actions are more than sufficient to deprive Abbate and the related entity defendants of witness immunity. 1 2 3 4 5 6 There is no evidence that Abbate fabricated any evidence 7 against Plaintiff. The evidence is that the financial support in 8 the Abate Spreadsheet for the alleged embezzlement was incomplete 9 and did not account for certain factors that Plaintiff’s expert 10 considers necessary to consider. There is some evidence that 11 Abbate may have withheld exculpatory information; he provided all 12 of the business records to Hutton and, eventually, to the 13 Cassabon Defendants. 14 of his interview with Abbate and Hutton establishes that Aceves 15 lied to Abbate and Hutton and that he was not coerced or 16 intimidated by Abbate in any way. 17 deposition that he did not tell Abbate or Hutton about his lies 18 and that he only recanted his statements during the trial. 19 However, there is evidence that Abbate did not provide complete 20 information to Hutton in his investigation. 21 in favor of Plaintiff, Abbate had a motive to discredit and deter 22 Plaintiff. 23 testimony is believed, Abbate’s incomplete and inaccurate 24 information faciliated what Bettancourt opines was a false, 25 misleading or fabricated financial analysis by Fung. 26 Defendants’ motion for summary judgment on the ground of absolute Aceves’ deposition testimony and the record Aceves testified at his He sought to influence Hutton. 72 Drawing inferences If Bettancourt’s The Abbate 1 witness immunity is DENIED. E. 2 CONSPIRACY. Defendants move for summary judgment on the ground that 3 4 Plaintiff has no evidence to support her claim that the Abbate 5 Defendants conspired with the other defendants to violate 6 Plaintiff’s constitutional rights. To prove a conspiracy, Plaintiff must show “an agreement or 7 8 ‘meeting of the minds’ to violate constitutional rights.” 9 Franklin v. Fox, supra, 312 F.3d at 441. Each individual does 10 not need to know the plan; sharing the common purpose of the 11 conspiracy is sufficient. 12 liable if he conspired with a state actor. Id. A private individual may be Id. 13 “The defendants must have, by some concerted action, 14 intended to accomplish some unlawful objective for the purpose of 15 harming another which results in damage.” 16 v. Mendocino County, 192 F.3d 1283, 1301 (9th Cir.1999). This 17 agreement or meeting of the minds may be inferred on the basis of 18 circumstantial evidence, such as the actions of the defendants. 19 Id. 20 to have been undertaken without an agreement’ may support the 21 inference of a conspiracy. 22 “required to produce ‘concrete evidence’ of an agreement or 23 ‘meeting of the minds” between Defendants Spencer and Hutton and 24 the Abbate and Cassabon Defendants to violate Plaintiff’s 25 constitutional rights. 26 772, 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 73 1 2 Plaintiff argues that Defendants are not entitled to summary judgment as to the alleged conspiracy: 19 The record ... shows that there was a preexisting and extensive personal relationship between the Abbates and defendant Spencer, consisting of personal, financial and political ties. The evidence also shows that Abbate defendants brought their claim to the District Attorney’s Office through unconventional channels, instead of proceeding to the Merced Police Department. The evidence further shows that, contrary to common practice, the District Attorney did not utilize a forensic accountant or fraud examiner in the investigation stage but relied upon Abbate’s misleading analysis with no scrutiny or even review. The evidence further shows that Hutton and Abbate worked together to obtain a misleading statement from Aceves as to Fenters’ alleged embezzlement, failing to report or otherwise bring out the exculpatory fact that Fenters’ involvement was suggested first by Abbate and that Aceves was ‘lured in’ to adopting this version. The evidence further shows that the prosecution took on the embezzlement case against Fenters without testing the facts or even knowing the magnitude of her alleged embezzlement, only after a brief meeting. The evidence also shows contact between the various principals during the course of the prosecution, as well as their extensive cooperation with a non-law enforcement and involved individual, Abbate himself, during the investigation stage. 20 In Radcliffe, supra, 254 F.3d at 783, the Ninth Circuit 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 21 22 23 24 25 26 explained: The plaintiff’s point to Massini’s subsequent zeal in prosecuting and her lack of research or discussion with her deputies who had dealt with the earlier cases, as evidence of conspiracy. The plaintiffs also suggest that one motive of Massini was to curry Richardson’s support for Massini’s upcoming re-election bid. But zealous prosecution, is not sufficient to raise a triable issue of 74 conspiracy with the citizen complainant. A relationship of cause and effect between the complaint and the prosecution is not sufficient, or every citizen who complained to a prosecutor would find himself in a conspiracy. The plaintiffs must provide evidence of ‘an agreement or meeting of the minds to violate constitutional rights.’ 1 2 3 4 5 Plaintiff’s argument that the prosecutor relied on Abbate’s 6 spreadsheet as evidence of conspiracy to prosecute Plaintiff 7 without probable cause is unsupported. Abbate’s spreadsheet was 8 ruled inadmissible at the preliminary hearing. It was the 9 Cassabon report that was admitted at trial. There is no evidence 10 that Abbate and Hutton worked together to obtain a false 11 statement from Aceves; Aceves’ deposition testimony and the 12 report of the interview of Aceves by Abbate and Hutton establish 13 the contrary. Hutton’s report to the prosecutor contained 14 Hutton’s report and the transcript of the meeting between Aceves, 15 Abbate and Hutton, which shows that Aceves mentioned Plaintiff 16 first, not Abbate. The fact that the District Attorney’s Office 17 decided to investigate the claim of embezzlement after a brief 18 meeting and without knowing the magnitude of the embezzlement 19 means is not wrongful given that Aceves had told Abbate that 20 Aceves had been embezzling from Yosemite Chevron and that Fenters 21 had told him how to do it. 22 Summary judgment for Defendants is GRANTED as to Plaintiff’s 23 claim of conspiracy. 24 F. THIRD CAUSE OF ACTION FOR VIOLATION OF CALIFORNIA CIVIL 25 26 75 1 2 CODE § 52.1.3 The Third Cause of Action is pursuant to California Civil 3 Code § 52.1 against the Abbate Defendants and the Cassabon 4 Defendants and alleges in pertinent part: 45. The defendants’ intentional and reckless acts, as described above, constitute a deprivation of plaintiff[‘s] ... rights, privileges and immunities under both article I of the California Constitution and the Fourth Amendment, specifically, her rights not to have her liberty restricted without legal basis, to be arrested without probable cause, and to be prosecuted maliciously without probable cause. The defendants’ interference with these constitutional rights was accomplished by means of force, coercion, and intimidation, and/or the threat thereof. Plaintiff clarifies that the defendants’ liability under this cause of action is not based on the privileged acts of reporting criminal activity and/or testifying in court, but, rather, fabricating evidence used to justify the filing and continuation of baseless criminal charges, as set forth hereinabove. 5 6 7 8 9 10 11 12 13 14 15 16 Defendants move for summary judgment as to the Third Cause 17 18 19 20 21 22 23 24 25 26 3 California Civil Code § 52.1(b) provides that “[a]ny individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with, as described in subdivision (b), may institute and prosecute ... a civil action for damages, including, but not limited to, damages under Section 52, injunctive relief, and other appropriate equitable relief to protect the peaceable exercise or enjoyment of the right or rights secured.” Section 52.1(a) provides for an action by the Attorney General, district attorney or city attorney “[i]f a person or persons, whether or not acting under color of law, interferes by threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any individual ... of rights secured by the Constitution or laws of the United States, or the rights secured by the Constitution or laws of this state ....” 76 1 of Action on the grounds that the cause of action is barred by 2 the statute of limitations; there is no evidence that Abbate 3 threatened, intimidated or coerced Plaintiff; and the cause of 4 action is barred by the litigation privilege set forth in Civil 5 Code § 47(b). 1. 6 7 Statute of Limitations. Defendants contend that the Third Cause of Action is barred 8 by the one year statute of limitations applicable to Section 9 52.1, citing Gatto v. County of Sonoma, 98 Cal.App.4th 744 10 11 12 13 14 15 16 17 18 (2002). In Gatto, the Court ruled: Gatto’s complaint relies entirely on allegations of the denial of full and equal access to public accommodations guaranteed under section 51, subdivision (b) [of the Civil Code] and free speech guaranteed under article I, section 2 of the California Constitution, which Gatto seeks to enforce under section 52.1. As we have seen, the first claim clearly derives from common law principles and is for that reason subject to the one-year statute. The second is analogous to a federal claim for personal injury under 42 United States Code section 1983 which ... sounds in tort ... and this claim is therefore also subject to the oneyear claim. 19 The July 14, 2006 Order re Defendants’ motions to dismiss 20 the Complaint, notes: 21 22 23 24 25 26 In their brief, these defendants refer to the “two-year” statute of limitations set forth in CCP § 340. However, Section 340 sets forth the one-year statute of limitations. Because Gatto also refers to the one-year statute of limitations applicable to actions under Section 1983 as being the limitations applicable to claims under Civil Code § 52.1, it is apparent that the reference in the brief to CCP § 340 is a typographical error. 77 Effective January 1, 2003, California Code of Civil Procedure § 335.1 provides for a twoyear statute of limitations for “an action for assault, battery, or injury to, or for the death of an individual caused by the wrongful act or neglect of another.” For actions under 42 U.S.C. § 1983, the Ninth Circuit applies the forum state’s statute of limitations for personal injury actions. Jonas v. Blanas, 393 F.3d 918, 927 (9th Cir.2004). Therefore, the Abbate Defendants should have referred to the two-year statute of limitations set forth in CCP § 335.1. 1 2 3 4 5 6 7 8 Consequently, Defendants’ contention that the Third Cause of 9 Action is subject to a one-year statute of limitation based on 10 Gatto has been rejected by the Court. 11 summary judgment based on the bar of the statute of limitations 12 is DENIED. 13 2. Defendants’ motion for Threats or Coercion. 14 Defendants move for summary judgment on the ground that 15 there is no evidence that Abbate threatened or coerced Plaintiff. 16 In Jones v. Kmart Corp., 17 Cal.4th 329, 334 (1998), the 17 California Supreme Court explained that “section 52.1 does 18 require an attempted or completed act of interference with a 19 legal right, accompanied by a form of coercion.” 20 Venegas v. County of Los Angeles, 32 Cal.4th 820, 843 (2004)(“the 21 language of section 52.1 provides remedies for ‘certain 22 misconduct that interferes with’ federal or state laws, if 23 accompanied by threats, intimidation, or coercion, and whether or 24 not state action is involved.”). 25 Supreme Court explained: 26 See also In Venegas, the California In Jones v. Kmart Corp. ..., we acknowledged 78 1 2 3 4 5 6 7 8 9 that Civil Code section 52.1 was adopted ‘to stem a tide of hate crimes.’ But contrary to the County’s position, our statement did not suggest that section 52.1 was limited to such crimes, or required plaintiffs to demonstrate that County or its officers had a discriminatory purpose in harassing them, that is, that they committed an actual hate crime. We continued in Jones by simply observing that the language of section 52.1 provides remedies for ‘certain misconduct that interferes with’ federal or state laws, if accompanied by threats, intimidation, or coercion, and whether or not state action is involved. Id. at 843. “The essence of a Bane Act claim is that the 10 defendant, by the specified improper means (i.e., ‘threats, 11 intimidation or coercion’), tried to or did prevent the plaintiff 12 from doing something he or she had the right to do under the law 13 or to force the plaintiff to do something that he or she was not 14 required to do under the law.” 15 School Dist., 149 Cal.App.4th 860, 883 (2007). Austin B. v. Escondido Union 16 Kincaid v. City of Fresno, 2008 WL 2038390 (E.D.Cal.2008), 17 included a concession that the California Supreme Court has not 18 defined the terms “threats, intimidation, or coercion, or 19 attempts to interfere by threats, intimidation, or coercion.” 20 The Court referred to a decision by the Massachusetts Supreme 21 Judicial Court, construing language in a statute that formed the 22 model for the Bane Act: 23 24 25 26 [A] ‘threat’ consists of the intentional exertion of pressure to make another fearful or apprehensive of injury or harm. ‘Intimidation’ involves putting in fear for the purpose of compelling or deterring conduct. ‘Coercion’ is the application to another of such force, either physical or 79 2 moral, as to constrain him to do against his will something he would not otherwise have done. 3 Haufler v. Zotos, 845 N.E.2d 322, 335-336 (Mass.2006). 1 4 Plaintiff responds that there is evidence that Abbate 5 coerced Aceves to give a statement implicating Plaintiff and that 6 Aceves told the prosecutor that he felt pressured by Abbate in 7 this regard. 8 misrepresented and “fabricated” evidence against Plaintiff raised 9 the continuous prospect of her conviction and incarceration, Plaintiff argues that evidence that Abbate 10 which Plaintiff testified threatened her. 11 McCalden v. California Library Association, 955 F.2d 1214 (9th 12 Cir.1989), cert. denied, 504 U.S. 957 (1992) as “finding a claim 13 for a violation of California Civil Code § 51.7 sufficient, 14 although it alleged non-contemporaneous intimidating conduct that 15 was not even conveyed directly to the victim.” 16 Plaintiff cites In McCalden, the Ninth Circuit addressed the district 17 court’s dismissal with prejudice of the claim by McCalden, a 18 self-described “Holocaust revisionist”, under California Civil 19 Code § 51.7 on the ground that the complaint did not sufficiently 20 allege intimidation by threat of violence committed to 21 plaintiff’s person or property as required by Section 51.7. 22 Section 51.7(a), as amended in 1984, provided in relevant part: 23 All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of their race, color, religion, ancestry, national origin, political affiliation, sex, sexual 24 25 26 80 1 2 3 4 5 6 7 8 9 10 11 12 13 14 orientation, age, disability, or position in a labor dispute. The identification in this subdivision of particular bases of discrimination is illustrative only rather than restrictive. The Ninth Circuit ruled: Liberally construed, the complaint contains one allegation of a specific threat - the AJC’s alleged statement to the CLA, ‘at the urging and request and with the knowledge, approval and cooperation of Defendants Marvin Hier ... and Simon Wiesenthal Center’ that if the contract with appellants were not canceled, “[d]efendant CLA’s 1984 Annual Conference would be disrupted, there would be damage to property and the CLA would be ‘wiped out.’” ... Appellees claim that this language can be construed only as a threat against the CLA, not against the person or property of appellant. They cite Coon v. Joseph, 192 Cal.App.3d 1269 ... (1987), in which the court held that the plaintiff, a gay man, could not state a § 51.7 claim against a bus driver by alleging that his lover was verbally abused and struck in his presence. The court stated: 15 16 17 18 19 20 21 The complaint establishes that no violence or intimidation was committed or threatened against [plaintiff’s] person and thus no cause of action exists in his own right. Following [plaintiff’s] argument, any person would have the right to recover damages for himself or herself whenever the rights of any other human being of similar ... sexual orientation were threatened. 22 Id. at 1277-78 .... 23 On a motion to dismiss, all reasonable inferences are to be drawn in favor of the non-moving party ... Appellant alleges that the appellees intended to disrupt his presentation by creating a demonstration that appellees knew and intended ‘would create a reasonable probability of property damage and 24 25 26 81 1 2 3 4 5 6 of violence against Plaintiff and members of Defendant CLA.’ ... In view of all the facts pled, it is reasonable to infer that any property damage or injury threatened could be directed against appellant, because the allegations clearly link the alleged threat to an intent to disrupt appellant’s exhibit and program. This case must therefore be distinguished from Coon, because it can be reasonably inferred from the complaint that the threatened violence was directed against appellant. 7 8 9 10 11 12 13 Although appellees suggest that the statute must be read as requiring the threat to be conveyed directly to the person threatened, the statute only requires that the plaintiff be intimidated by threat of violence committed against his person or property. In construing a remedial statute, on a motion to dismiss, in the absence of clear state court direction, this court is reluctant to read any unnecessary restrictions into § 51.7. 955 F.2d at 1221-1222. 14 Plaintiff argues that, because Section 52.1 does not require 15 proof of animus against the plaintiff, “[i]t would therefore make 16 little sense that the more general Bane Act would require a 17 closer nexus between the perpetrator’s threatening acts and the 18 constitutional violation than does the Unruh Act.” 19 that Section 52.1 is a more general statute that should be 20 construed more broadly, Plaintiff argues: 21 22 23 24 25 Contending [The] allegations that she was for the duration of the prosecution against her, subject to a legitimate threat of prosecution, i.e., a loss of liberty, her allegations under section 52.1 are sufficient. Indeed, the defendants by causing plaintiff’s prosecution and raising the prospect of her imprisonment, committed acts that were inherently coercive and threatening. 26 82 1 Aceves’ deposition testimony and the record of his interview 2 with Abbate and Hutton establishes that Abbate did not coerce 3 Aceves to give a statement implicating Plaintiff in the alleged 4 embezzlement. 5 inferred that Abbate did not give Hutton complete financial and 6 other information during the course of his investigation. 7 trier of fact determines that Abbate was pursuing the criminal 8 prosecution to threaten and intimidate Plaintiff to deter her 9 from bringing claims related to her employment, the case However, there is evidence from which it may be If the 10 authority cited above permits an inference of conduct prohibited 11 by Section 52.1. 3. 12 Summary judgment on this ground is DENIED. Civil Code § 47(b) Privilege. 13 Defendants move for summary judgment as to the Third Cause 14 of Action on the ground that Plaintiff’s claim is barred by the 15 litigation privilege set forth in California Civil Code § 47(b). 16 Section 47(b) bars a civil action for damages based on 17 statements made in any judicial proceeding, in any official 18 proceeding authorized by law, or in the initiation or course of 19 any mandate-reviewable proceedings authorized by law. 20 litigation privilege provided in Section 47(b) 21 communication (1) made in judicial or quasi-judicial proceedings; 22 (2) by litigants or other participants authorized by law; (3) to 23 achieve the objects of the litigation; and (4) that have some 24 connection or logical relation to the action. 25 Contractor, Inc. v. Rhino Elec., 137 Cal.App.4th 1118, 1126 26 (2006). The applies to any A.F. Brown Elec. Section 47(b) establishes an absolute privilege for such 83 1 statements and bars all tort causes of action based on them 2 except a cause of action for malicious prosecution. 3 California Federal Bank, 32 Cal.4th 350, 360 (2004). 4 47 gives all persons the right to report crimes to the police, 5 the local prosecutor or an appropriate regulatory agency, even if 6 the report is made in bad faith.’” Hagberg, id. at 365. 7 communication concerning possible wrongdoing, made to an official 8 governmental agency such as a local police department, and which 9 communication is designed to prompt action by that entity is as 10 much a part of an “official proceeding” as a communication made 11 after an official investigation has commenced ... After all, 12 ‘[t]he policy underlying the privilege is to assure utmost 13 freedom of communication between citizens and public authorities 14 whose responsibility it is to investigate and remedy wrongdoing.’ 15 ... The importance of providing to citizens free and open access 16 to governmental agencies for the reporting of suspected criminal 17 activity outweighs the occasional harm that might befall a 18 defamed individual. 19 Id. at 364-365. 20 “communications intended to instigate official investigation into 21 [suspected] wrongdoing.” 22 an official investigation that may result in the initiation of 23 judicial proceedings also fall within the privilege set forth in 24 Section 47(b). Hagberg v. “‘Section “‘[A] Thus the absolute privilege is essential.”’” Section 47(b)’s absolute privilege applies to Id. at 369. Statements made to prompt Id. at 361-36. 25 Plaintiff responds that, to the extent the Third Cause of 26 Action alleges an unconstitutional malicious prosecution claim 84 1 under Section 52.1, it is not barred by the Section 47(b) 2 privilege. 3 malicious prosecution claim and/or a section 52.1 claim based on 4 malicious prosecution was dismissed based on an application of 5 section 47(b).” 6 Plaintiff asserts that she “has found no case where a In Hagberg, the plaintiff filed a complaint alleging claims 7 for false arrest, false imprisonment, slander, invasion of 8 privacy, intentional infliction of emotional distress, and race 9 discrimination in violation of the Unruh Civil Rights Act, Civil 10 Code §§ 51 and 52.1. The Supreme Court refused to address the 11 plaintiff’s contention that Section 47(b) should not be 12 interpreted to bar liability where it is alleged that a business 13 establishment’s communication to the police concerning suspected 14 criminal activity was motivated by racial or ethnic prejudice and 15 therefore constituted unlawful discrimination by the business 16 establishment in violation of the Unruh Civil Rights Act, because 17 the plaintiff’s evidence did not suffice to raise a question of 18 fact that defendants were motivated by racial or ethnic 19 prejudice. 20 discusses application of Section 47(b) to a claim for violation 21 of Section 52.1. 32 Cal.4th at 375-376. No case since Hagberg 22 Summary judgment on this ground is DENIED. 23 G. 24 The Fourth Cause of Action is for malicious prosecution 25 under California common law against the Abbate Defendants and the 26 Cassabon Defendants and alleges in pertinent part: FOURTH CAUSE OF ACTION FOR MALICIOUS PROSECUTION. 85 49. The defendants’ intentional and reckless acts, as described above, caused plaintiff ... to be maliciously prosecuted without probable cause or other legal basis. Plaintiff was acquitted at trial. Plaintiff clarifies that the defendants’ liability under this cause of action is not based on the privileged acts of reporting criminal activity and/or testifying in court, but, rather, fabricating evidence used to justify the filing and continuation of baseless criminal charges, as set forth hereinabove. 1 2 3 4 5 6 7 Defendants move for summary judgment as to the Fourth Cause 8 of Action for malicious prosecution on the ground that the 9 District Attorney’s Office acted with independent discretion. 10 “To establish a cause of action for malicious prosecution, a 11 plaintiff must demonstrate that the prior action (1) was 12 initiated by or at the direction of the defendant and legally 13 terminated in the plaintiff’s favor, (2) was brought without 14 probable cause, and (3) was initiated with malice.” Siebel v. 15 Mittlesteadt, 41 Cal.4th 735, 740 (2007). 16 Defendants cite Hogan v. Valley Hospital, 147 Cal.App.3d 119 17 (1983). In Hogan, a doctor brought a malicious prosecution 18 action against certain hospitals and another doctor in which it 19 was alleged that defendants had filed a false report with the 20 Board of Medical Quality Assurance, which resulted in the filing 21 of charges against plaintiff. At the conclusion of the hearing 22 before the Board of Medical Quality Assurance, it was found that 23 no cause existed for the suspension or revocation of plaintiff’s 24 medical certificate. The trial court sustained without leave to 25 amend a demurrer to plaintiff’s complaint on the grounds that the 26 86 1 communication from the hospitals were absolutely privileged under 2 Section 47, that the Board had discretion to determine whether to 3 file charges against plaintiff, and thus defendants were not 4 responsible for the Board’s ultimate decision to bring charges. 5 The Court of Appeal affirmed, holding that although defendants 6 would have been afforded absolute protection under Section 47 for 7 an action for libel or slander, no such absolute privilege is 8 afforded with respect to an action for malicious prosecution. 9 The Court held that the trial court properly sustained the 10 demurrer on the ground that the Board had conducted an 11 independent investigation and determination prior to proceeding 12 on the complaint, that it was the board, not defendants who 13 initiated or procured the disciplinary proceedings against the 14 plaintiff, and therefore plaintiff failed to allege the elements 15 required to establish an action for malicious prosecution: 16 17 18 19 20 21 22 23 The BMQA is similar to the State Bar Association. Each is empowered and directed to conduct an independent investigation of all complaints from the public prior to the filing of an accusation. (Bus. & Prof. Code, § 2200; Gov. Code, §§ 11500-11528). As a consequence, we are persuaded by the reasoning of Stanwyck and Werner that inasmuch as the BMQA conducted an independent investigation and determined prior to proceeding on the complaint, it was the BMQA, not respondents, who initiated or procured the disciplinary proceedings against appellant. Therefore, appellant failed to allege the elements required to establish an action for malicious prosecution. 24 Johnson v. Superior Court, 25 Cal.App.4th 1564 (1994). In 25 Johnson, a psychologist sued expert consultants for malicious 26 87 1 prosecution in connection with disciplinary proceedings by the 2 California Board of Psychology and Board of Behavioral Science 3 Examiners against plaintiff. 4 plaintiff did not state a claim for malicious prosecution because 5 it was the Boards, not the expert consultants, who filed the 6 disciplinary proceedings against the plaintiff. 7 See also Stanwyck v. Horne, 146 Cal.App.3d 450, 452 8 (1983)(independent investigation by State Bar presumed). 9 The Court of Appeal affirmed that Id. at 1571. Plaintiff argues that the evidence is disputed whether the 10 District Attorney’s Office conducted an independent 11 investigation, contending that there is evidence that Abbate 12 influenced the investigation by “making contrived allegations of 13 embezzlement against Fenters which he bolstered with a 14 fabricated, misleading spreadsheet and a coerced statement from 15 Aceves.” 16 “withheld crucial information pertaining to how many employees 17 used the register on a given shift and Robert Wilson’s being 18 fired for stealing from Fenters.” 19 Plaintiff asserts that there is evidence that Abbate Aceves’ deposition testimony establishes that Aceves was not 20 coerced by Abbate to make the statements he made to Abbate and 21 Hutton. 22 that Abbate did not provide the described evidence to Hutton. 23 Summary judgment as to the Fourth Cause of Action is DENIED. 24 H. 25 However, there is evidence from which it may be inferred et seq. 26 FIFTH CAUSE OF ACTION FOR VIOLATION OF 29 U.S.C. §§ 201 The Fifth Cause of Action is alleged against the Abbate 88 1 2 3 4 5 6 7 8 9 10 Defendants pursuant to 29 U.S.C. § 201 et seq.: 52. By refusing to pay plaintiff ... overtime and other compensation to which she was clearly entitled, the defendants have denied her wages that she earned during her employment. The defendants are subject to the terms of this statute, as they are engaged interstate commerce. 53. The foregoing actions are in violation of 29 U.S.C. § 201, et seq., and dictate that the defendants are liable to the plaintiff. Moreover, the defendants’ violation of plaintiff’s federal overtime and compensation rights was willful and thus entitles her to additional liquidated damages. Defendants move for summary judgment as to Plaintiff’s claim 11 that “[b]y refusing to pay plaintiff ... overtime and other 12 compensation to which she was clearly entitled, the defendants 13 have denied her wages that she earned during her employment” in 14 violation of 29 U.S.C. § 201 et seq. 15 Defendants refer to Plaintiff’s deposition testimony that 16 Fenters has no evidence to show that Yosemite Chevron’s timecards 17 are inaccurate; that she could not identify any specific date 18 that she was not paid for overtime; that she could not identify 19 any specific hour of overtime that she has not been paid for by 20 Yosemite Chevron; and her testimony that there could be zero 21 hours of overtime that have been unpaid. 22 refer to evidence that Yosemite Chevron paid all required 23 overtime under the laws of California based on the time cards 24 submitted by Plaintiff. 25 26 In addition, Defendants Plaintiff argues that summary judgment is not appropriate because she testified at her deposition that she was not paid 89 1 time and a half for overtime, even if she could not at her 2 deposition provide a calculation as to that time. 3 An employee seeking to recover unpaid minimum wages or 4 overtime under the FLSA “has the burden of proving that he 5 performed work for which he was not properly compensated.” 6 Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946). 7 In view of the remedial purposes of the FLSA and the employer’s 8 statutory obligation “to keep proper records of wages, hours and 9 other conditions and practices of employment,” this burden is not 10 to be “an impossible hurdle for the employee.” 11 employee establishes that overtime hours and wages were not 12 recorded by the employer as required by the FLSA, “an employee 13 has carried out his burden if he proves that he has in fact 14 performed work for which he was improperly compensated and if he 15 produces sufficient evidence to show the amount and extent of 16 that work as a matter of a just and reasonable inference. 17 The burden then shifts to the employer to show the precise number 18 of hours worked or to present evidence sufficient to negate “the 19 reasonableness of the inference to be drawn from the employee’s 20 evidence.” 21 showing, the court “may then award damages to the employee, even 22 though the result be only approximate.” Id. at 688. Id. If an Id. If the employer fails to make such a Id. 23 Summary judgment is GRANTED as to the Fifth Cause of Action. 24 Plaintiff’s conclusory deposition testimony that she was not paid 25 overtime and the absence of evidence that Yosemite Chevron’s 26 timecards are inaccurate fail to make a prima facie case. 90 She 1 has no evidence as to dates or times proving that she worked any 2 uncompensated overtime hours as a matter of reasonable inference. 3 She testified at her deposition that the there could be zero 4 hours of overtime that have been unpaid.4 5 I. 6 The Sixth Cause of Action is against the Abbate Defendants 7 SIXTH CAUSE OF ACTION FOR VIOLATION OF 29 U.S.C. § 215. for violation of 29 U.S.C. § 215 et seq.: 55. By retaliating against plaintiff ... for her complaining about the denial of her compensation and overtime rights, the defendants have violated the anti-retaliation provision of the Fair Labor Standards Act, 29 U.S.C. §§ 215, 219. The defendants are subject to the terms of this statute, as they are engaged in interstate commerce. 8 9 10 11 12 56. There was no valid, good faith basis to retaliate against the plaintiff, and her engaging in activity protected by the Fair Labor Standards Act was a motivating factor in their retaliation. Plaintiff was in all respects qualified for her position and was performing well. 13 14 15 16 Defendants move for summary judgment as to the Sixth Cause 17 of Action. 29 U.S.C. § 215(a)(3) provides that it is unlawful 18 for any person “to discharge or in any other manner discriminate 19 against any employee because such employee has filed any 20 complaint or instituted or caused to be instituted in any 21 proceeding under or related to this chapter, or has testified or 22 is about to testify in any such proceeding ....”5 23 24 25 26 4 This ruling makes unnecessary Defendants’ alternative ground for summary judgment based on the statute of limitations. 5 Plaintiff asserts that she complained to Abbate about sexual harassment by another employee. This is not alleged in the Sixth Cause of Action. Further, no legal authority has been discovered 91 1 Defendants move for summary judgment on the ground that 2 Plaintiff failed to exhaust administrative remedies before 3 bringing this cause of action. 4 Lambert v. Ackerley, 180 F.3d 997, 1002-1008 (9th Cir.1999), 5 cert. denied, 528 U.S. 1116 (2000), rejected the position that 6 the antiretaliation provision of Section 215(a)(3) extends only 7 to those employees who filed formal proceedings with the 8 Department of Labor, holding that “§ 215(a)(3) protects from 9 retaliation employees who complain to their employer about 10 11 12 13 14 15 16 17 18 19 20 21 alleged violations of the Act.” Defendants’ motion for summary judgment on this ground is DENIED. As explained in Wolf v. Coca-Cola Co., 200 F.3d 1337, 13421343 (11th Cir.2000): A prima facie case of FLSA retaliation requires a demonstration by the plaintiff of the following: ‘(1) she engaged in activity protected under [the] act; (2) she subsequently suffered adverse action by the employer; and (3) a causal connection existed between the employee’s activity and the adverse action.’ ... If the employer asserts a legitimate reason for the adverse action, the plaintiff may attempt to show pretext ... In demonstrating causation, the plaintiff must prove that the adverse action would not have been taken ‘but for’ the assertion of FLSA rights. 22 Defendants argue that Plaintiff has no evidence that she 23 24 25 26 that allows a Section 215 claim of retaliation based on a complaint of sexual harassment; such a claim is covered by Title VII. Plaintiff cannot proceed under the Sixth Cause of Action for her assertion that she complained to Abbate about the sexual harassment by Montes. 92 1 “subsequently suffered an adverse action” by Yosemite Chevron 2 after allegedly making complaints to Abbate about wage and 3 overtime issues. 4 employment at Yosemite Chevron on March 28, 2003. 5 Defendants note that Plaintiff resigned her In Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir.2000), a 6 case involving Title VII, the Ninth Circuit held that “an action 7 is cognizable as an adverse employment action if it is reasonably 8 likely to deter employees from engaging in protected activity.”6 9 In Vasquez v. County of Los Angeles, 307 F.3d 884, 891 (9th Cir.2002), held that “the proper inquiry is to view the action objectively to determine whether it was adverse” and that “a purely subjective analysis is not appropriate when deciding whether an employment action was adverse.” However, the 2002 Vasquez opinion was withdrawn and superceded by Vasquez v. County of Los Angeles, 349 F.3d 634, 646 (9th Cir.2003). The Ninth Circuit, discussing the prima facie case analysis, stated: 6 10 11 12 13 14 15 16 17 18 19 20 21 This analysis requires us to examine separately whether the ‘adverse employment action’ is considered through an objective or subjective lens. We addressed this question, at least in passing, in Ray v. Henderson. We adopted the EEOC standard from its compliance manual, and held that ‘an action is cognizable as an adverse employment action if it is reasonably likely to deter employees from engaging in protected activity.’ In context, this is, at least in part, a subjective standard because the EEOC manual speaks of ‘”any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity.”’ .... 22 23 24 25 Including behavior of the charging party in the standard removes it from the hypothetical ‘reasonable employee’ approach and makes it more subjective. Of course, it is not entirely subjective as the conduct must be ‘reasonably likely’ to deter the protected activity, even by the charging party. 26 93 1 Defendants argue that Plaintiff offers no legal authority to 2 support her claim that reporting a suspected crime to law 3 enforcement constitutes an adverse employment action, especially 4 when Plaintiff had already resigned before the suspected criminal 5 conduct was reported. 6 Plaintiff cites E.E.O.C. v. Nalbandian Sales, Inc., 36 7 F.Supp.2d 1206, 1211 (E.D.Cal.1998), a case involving Title VII, 8 as supporting the conclusion that evidence Plaintiff resigned 9 because her complaints to Abbate about wage and hour, overtime, 10 reimbursement and sexual harassment issues and then was wrongly 11 prosecuted for embezzlement based on allegedly false and 12 fabricated evidence is sufficient to state a claim for relief 13 under Section 215. 14 In Nalbandian Sales, the plaintiff alleged that a former 15 employer refused to rehire the employee in retaliation for a 16 discrimination claim filed by the employee’s sister. 17 ruled that “this court exercises authority to broadly interpret 18 federal remedial legislation in order to effectuate the statute’s 19 overarching purposes. 20 Supreme Court ‘have been willing to construe Title VII and 21 companion provisions under the Fair Labor Standards Act, 29 The Court The majority of courts, including the 22 23 24 For purposes of analysis, we will assume that the transfer met the Ray standard. However, this does not save Vasquez’s retaliation claim because he has failed to show a causal link. 25 26 94 1 U.S.C. § 215(a)(3) ... broadly in order not to frustrate the 2 purposes of these Acts, which is to prevent fear of economic 3 retaliation from inducing employees “quietly to accept [unlawful] 4 conditions.”’” 5 36 F.Supp.2d at 1211. Summary judgment for Defendants on the Sixth Cause of Action 6 is GRANTED; there is no evidence from which it may be inferred 7 that the Abbate Defendants filed a criminal complaint against 8 Plaintiff based on her alleged complaints concerning wage and 9 hour, overtime, and reimbursement issues. Plaintiff had already 10 resigned her employment before the alleged embezzlement was 11 discovered. CONCLUSION 12 13 For the reasons stated: 14 1. Defendants Yosemite Chevron, Abbco Investments, LLC, and 15 Robert Abbate’s motion for summary judgment is GRANTED IN PART 16 AND DENIED IN PART; 17 2. Counsel for the Abbate Defendants shall prepare and 18 lodge a form of order that the rulings set forth in this 19 Memorandum Decision within five (5) days following the date of 20 service of this decision; 21 3. Consistent with Rule 56(d)(1), both parties shall have 22 five (5) days following service of this decision to file a list 23 of material facts which each party believes are not genuinely 24 issues for purposes of trial. 25 parties, these lists shall not exceed five pages. 26 practicable, the parties shall meet and confer to determine If separately filed by the 95 To the extent 1 whether and to what extent any material facts are agreed upon for 2 purposes of trial. 3 filing. IT IS SO ORDERED. 4 5 Agreed upon facts should be listed in a joint Dated: 668554 December 29, 2010 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 96