Evans et al v. HBC Investment Group, Inc. et al, No. 1:2010cv01373 - Document 14 (E.D. Cal. 2010)

Court Description: MEMORANDUM, OPINION and ORDER granting 120 Motion for Summary Judgment signed by Judge Oliver W. Wanger on 12/29/2010. (Lundstrom, T)
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Evans et al v. HBC Investment Group, Inc. et al Doc. 14 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 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV-F-05-1630 OWW/DLB MEMORANDUM DECISION GRANTING DEFENDANTS FUNG AND CASSABON & ASSOCIATES, LLP'S MOTION FOR SUMMARY JUDGMENT (Doc. 120) 17 Defendants Victor Fung and Cassabon & Associates, LLP 18 (hereafter “the Cassabon Defendants”) move for summary judgment 19 in connection with Plaintiff Tiffany Fenters’ allegations against 20 them. 21 In the First Amended Complaint (FAC), Tiffany names as 22 defendants Yosemite Chevron, Abbco Investments, LLC, and Robert 23 Abbate (the Abbate Defendants); Gordon Spencer, former District 24 Attorney for the County of Merced, Merle Wayne Hutton, 25 Supervising Investigator for the District Attorney’s Office for 26 Merced County, and Merced County (the Merced County Defendants); 1 Dockets.Justia.com 1 and Victor K. Fung, CPA and Cassabon & Associates (the Cassabon 2 Defendants).1 3 Cassabon Defendants are “liable under federal law based on the 4 joint activity and/or conspiracy [they] engaged in ... with 5 individuals action under color of law and within the course and 6 scope of their duties.” The FAC alleges that the Abbate Defendants and the 7 A. 8 The FAC alleges that Tiffany was hired by Yosemite Chevron 9 ALLEGATIONS OF FIRST AMENDED COMPLAINT. on June 6, 2002 as a cashier/stock clerk; that Tiffany was 10 instructed to balance the cash register and clear the register of 11 any cash in excess of $150 at the end of her shift; that, shortly 12 after beginning her employment, she and other employees were 13 required, as a condition of continued employment, to reimburse 14 Yosemite Chevron for funds lost as a result of “drive-offs” where 15 customers did not pay in advance and drove off without payment; 16 that Tiffany was not being paid extra for overtime worked; that 17 another Yosemite Chevron employee expressed inappropriate and 18 unwelcome sexual interest in Tiffany; that when Tiffany brought 19 this to Abbate’s and Yosemite Chevron’s management, no effective 20 remedial action was taken; that other inappropriate conduct 21 occurred at Yosemite Chevron, including theft and drug dealing; 22 that Tiffany complained about being required to reimburse 23 Yosemite Chevron for “drive-offs” and other defalcations, not 24 25 26 1 The FAC also named Erin M. McIlhatton, CPA, of Cassabon & Associates as a Defendant. McIlhatton was dismissed with prejudice by Stipulation and Order filed on October 10, 2007. (Doc. 109) 2 1 being paid overtime, being forced to work overtime against her 2 will, being sexually harassed, workplace theft, and working in a 3 place where drugs were being used; that Tiffany left her 4 employment with Yosemite Chevron on March 26, 2003 because of 5 this ongoing pattern of illegal activity and misconduct; that 6 Tiffany was forced to return to Yosemite Chevron without 7 compensation to put her decision to quit in writing; and that 8 Tiffany was not paid all of the compensation to which she was 9 then legally entitled. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 The FAC alleges: 23. In connection with Tiffany’s separation from employment in March 2003, Abbate went to the Office of the District Attorney for the County of Merced and met with Spencer and Hutton in an effort to get false and fabricated charges of embezzlement filed against Tiffany. Indeed, neither Abbate nor anyone else at Yosemite Chevron had even suspected or accused Tiffany of any dishonest activity during her employment, and Abbate never reported any loss based on Tiffany’s activities to his insurance, because, plaintiff is informed and believes, such losses did not occur and could not be credibly documented. Tiffany is informed and believes that Abbate took this step as a ‘preemptive strike’ against her as an exemployee he anticipated might take legal action. Tiffany is further informed and believes that during the period of April, May and June 2003, Hutton headed a resultoriented investigation into Abbate’s and Yosemite Chevron’s false and fabricated allegations at their behest and at Spencer’s and Abbate’s direction. Plaintiff is further informed and believes that Hutton, Spencer and Abbate participated in this ‘investigation.’ 24 25 26 24. The following facts are now apparent concerning the specifics of the false and fabricated investigation undertaken by the defendants. Abbate, with the assistance and 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 advice of Hutton, Spencer, and other defendants, fabricated and manipulated Yosemite Chevron business records to support his baseless allegations. Abbate, Hutton, Spencer, and other defendants also downplayed and distorted the fact that Yosemite Chevron at all times had a video surveillance system that would have depicted an employee taking cash from the store register and, indeed, had in the past provided the evidence that led to Wilson’s ultimate firing for stealing a lottery ticket. Nor surprisingly, no videotapes depicting Tiffany engaging in any dishonest activity were ever disclosed. Abbate also acted as an investigator on his own case, and, on or about June 4, 2003 interviewed another Yosemite Chevron employee, Alejandro Aceves ..., with Hutton initially surreptitiously observing. During that interview, Abbate and Hutton, at Spencer’s direction, coerced Aceves into saying that Tiffany had taught him how to steal from Yosemite Chevron, a fact not disclosed by any of the defendants until Aceves admitted it in open court during Tiffany’s criminal trial. Even further, Abbate and Hutton, at Spencer’s direction, promised Aceves consideration for falsely implicating Tiffany. Overall, it took Abbate, Hutton, Spencer and other defendants approximately three months to ‘make’ a case against Tiffany that could be filed. 17 18 19 20 21 22 23 24 25 26 25. Abbate directed his false and fabricated allegations to the Office of the District Attorney, instead of the Merced Police Department, the law enforcement agency with primary jurisdiction, because Abbate had a prior personal relationship with Spencer. Indeed, Spencer recently resigned his position in disgrace because of numerous scandals involving his misusing his official position for his personal interest and gain. Records indicate that Spencer directed and routed Abbate’s and Yosemite Chevron’s complaint not to the local law enforcement agency with primary jurisdiction, as would typically be the case, but instead to Hutton, a supervising investigator from his office. Moreover, in conducting, along with Abbate, the false and fabricated investigation, 4 1 Hutton acted at all times at Spencer’s direction. 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. On June 23, 2003, Tiffany was charged with embezzlement in violation of California Penal Code § 503. Tiffany was booked on these charges on August 7, 2003. The allegations underlying this baseless and fabricated criminal proceeding were that Tiffany embezzled sums herself and also instructed and advised Aceves on how to embezzle funds from Yosemite Avenue Chevron. Indeed, it was alleged that Tiffany was personally responsible for embezzling in excess of $12,000 and that Aceves was responsible for embezzling in excess of $19,000. In Merced County, it is not uncommon for those convicted of embezzlement to be incarcerated upon conviction, and Tiffany was apprized of this fact at the outset of the criminal proceedings. 27. The allegations against Tiffany in this regard are completely without any reliable evidentiary support and are contrary to the truth. Over the period of time where this embezzlement activity is alleged to have occurred, there is no corresponding drop in income or inventory at Yosemite Chevron. Also, there were regular, if not daily, checks of the register and inventory for the purposes of determining if employees were obligated to reimburse Yosemite Chevron, and none of these checks indicated losses consistent with the embezzlement allegations, which would have required Tiffany to have made away with hundreds of dollars per shift. Moreover, contrary to what was alleged, there was no indication that Tiffany was responsible for any of the alleged suspicious activity, since several employees work any given shift and are each able to tend the register at various times. Additionally, Yosemite Chevron’s systems of controls make its records and the allegations of embezzlement highly suspect. Even further, there was absolutely no indication that Tiffany was ever reported during the subject time period as having any unexplained amounts of cash or suspicious property. 26 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 28. The false, fabricated and baseless allegations of embezzlement against Tiffany were supported by the accountant firm retained on behalf of the prosecution, Cassabon, and the accountants from Cassabon specifically assisting the prosecution, Fung and McIlhatton. These defendants were brought into this criminal prosecution after the judge who presided over the preliminary examination had expressed doubt and criticism regarding the lack of any objective financial evidence that Tiffany had committed a crime. Even further, it was represented that the Office of the District Attorney was not ready for trial and required a substantial continuance in order to consult with these defendants, so that it might continue proceeding with its case against Tiffany. However, instead of making a serious, objective inquiry into the issues they were retained to examine, these defendants disregarded all of the above-outlined facts showing the embezzlement allegations to be baseless and incredible, as well as the professional standards that are supposed to be followed by accountants engaged to provide litigation services. As a result, these defendants produced misleading, resultoriented reports that served to add a false air of legitimacy to the embezzlement charges and which permitted said charges to proceed to trial. 17 18 19 20 21 22 23 24 25 29. As a result of the defendants’ wrongful acts, Tiffany was forced to defend herself against these baseless allegations for an extended period of time, all the way up to trial. Spencer attended a hearing in this criminal proceeding on January 5, 2004 and acknowledged on that date that he had a personal relationship with Abbate. Moreover, despite Tiffany’s lack of a criminal history and the relatively small amount of alleged loss, this criminal proceeding received ‘special attention’ and a felony resolution was always demanded at Spencer’s insistence. Also, despite any credible incriminating facts or evidence, the prosecution persisted in pursuing a felony conviction at Spencer’s instruction. 26 6 1 2 3 4 30. Trial commenced on September 27, 2005. On October 13, 2005, plaintiff was acquitted by a Merced County jury. From the time that the case was submitted to the jury until the verdict, only two and one-half hours elapsed. The FAC alleges a First Cause of Action pursuant to 42 5 U.S.C. § 1983 against all defendants, alleging in pertinent part: 6 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. 7 8 9 10 11 12 13 The Third Cause of Action is pursuant to California Civil 14 Code § 52.1 against the Abbate Defendants and the Cassabon 15 Defendants and alleges in pertinent part: 16 17 18 19 20 21 22 23 24 25 26 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. 7 1 The Fourth Cause of Action is for malicious prosecution 2 under California common law against the Abbate Defendants and the 3 Cassabon Defendants and alleges in pertinent part: 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. 4 5 6 7 8 9 10 B. CASSABON DEFENDANTS’ OBJECTIONS TO BETTANCOURT EXPERT 11 REPORT. 12 Submitted in opposition to the Cassabon Defendants’ motion 13 for summary judgment is what is characterized by Mr. Little as 14 “the declaration report” of John Bettancourt. Mr. Bettancourt 15 avers: 16 17 1. I am a certified public accountant. My current curriculum vitae has been provided separately. 18 19 20 21 22 23 24 25 2. I have been retained on behalf of plaintiff Tiffany Fenters in this proceeding. 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. 26 8 1 2 3 4 5 6 7 8 9 10 11 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 Cassabon Defendants object to Mr. Bettancourt’s declaration on several grounds. Defendants object to consideration of Mr. Bettancourt’s 12 declaration because it fails to set forth Mr. Bettancourt’s 13 qualifications. 14 15 16 17 18 Rule 702, Federal Rules of Evidence, provides: If scientific, technical, or other 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. 19 “Whether a witness is qualified as an expert can only be 20 determined by comparing the area in which the witness has 21 superior knowledge, skill, experience, or education with the 22 subject matter of the witness’s testimony. Carroll v. Otis 23 Elevator Co., 896 F.2d 210, 212 (7th Cir.1990). 24 Defendants complain that Mr. Bettancourt’s declaration does 25 not set forth his qualifications, other than to aver that he is a 26 9 1 2 certified public accountant. Plaintiff responds that “the totality of the materials 3 submitted to the Court, which include Bettancourt’s trial 4 testimony in the underlying criminal case and his deposition, 5 more than amply set forth his qualifications as an experienced 6 forensic accountant and certified fraud examiner, as well as the 7 materials he reviewed in support of his opinion in this case,” 8 citing Bettancourt’s trial testimony at p. 516-531 and his 9 deposition testimony at p. 1-23. Plaintiff cites Miller v. 10 Corrections Corp. of America, 375 F.Supp.2d 889, 896 (D.Alaska 11 2005), in contending that “an expert report may, as do 12 plaintiff’s expert’s reports, include or make reference to 13 attachments reflecting the expert’s opinions.” 14 Defendants’ objections to Mr. Bettancourt’s declaration on 15 the ground that he is unqualified to render the opinion is 16 baseless. 17 Mr. Bettancourt is not qualified to give his expert opinion as to 18 the accounting methods utilized by Defendants. 19 Defendants do not point to any specific evidence that Defendants object that Mr. Bettancourt provides no 20 foundation for his opinion in that he does not set forth any of 21 the data he reviewed or any investigation that he undertook in 22 reaching his conclusions; that it does not set forth his 23 methodology; and that his testimony is speculative and 24 conjectural. 25 26 However, as Plaintiff notes, Mr. Bettancourt’s methodology and foundation is set forth in his trial testimony in the 10 1 underlying criminal action. While certain of Mr. Bettancourt’s 2 conclusions are conjectural and speculative, these are matters 3 going to the weight of his opinion, not its admissibility. 4 C. Governing Standards. 5 Summary judgment is proper when it is shown that there 6 exists “no genuine issue as to any material fact and that the 7 moving party is entitled to judgment as a matter of law.” 8 Fed.R.Civ.P. 56. 9 element of a claim or a defense, the existence of which may A fact is “material” if it is relevant to an 10 affect the outcome of the suit. 11 Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th 12 Cir.1987). 13 governing a claim or a defense. 14 inferences drawn from it must be construed in the light most 15 favorable to the nonmoving party. 16 T.W. Elec. Serv., Inc. v. Materiality is determined by the substantive law Id. The evidence and all Id. The initial burden in a motion for summary judgment is on 17 the moving party. The moving party satisfies this initial burden 18 by identifying the parts of the materials on file it believes 19 demonstrate an “absence of evidence to support the non-moving 20 party’s case.” 21 (1986). 22 summary judgment. 23 party “may not rely on the mere allegations in the pleadings in 24 order to preclude summary judgment,” but must set forth by 25 affidavit or other appropriate evidence “specific facts showing 26 there is a genuine issue for trial.” 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. 11 Id. The nonmoving The nonmoving party 1 may not simply state that it will discredit the moving party’s 2 evidence at trial; it must produce at least some “significant 3 probative evidence tending to support the complaint.” 4 question to be resolved is not whether the “evidence unmistakably 5 favors one side or the other, but whether a fair-minded jury 6 could return a verdict for the plaintiff on the evidence 7 presented.” 8 52 F.3d 810, 815 (9th Cir.1995). 9 “mere existence of a scintilla of evidence in support of the Id. The United States ex rel. Anderson v. N. Telecom, Inc., This requires more than the 10 plaintiff’s position”; there must be “evidence on which the jury 11 could reasonably find for the plaintiff.” 12 implausible the claim or defense asserted by the nonmoving party, 13 the more persuasive its evidence must be to avoid summary 14 judgment.” 15 Fritz Companies, 210 F.3d 1099 (9th Cir.2000): 16 17 18 19 20 21 22 23 24 25 26 Id. Id. The more As explained in Nissan Fire & Marine Ins. Co. v. 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. 12 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 .... 1 2 3 4 5 6 7 8 9 If a moving party fails to carry its initial burden of production, the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial ... In such a case, the nonmoving party may defeat the motion for summary judgment without producing anything ... If, however, a moving party carries its burden of production, the nonmoving party must produce evidence to support its claim or defense ... If the nonmoving party fails to produce enough evidence to create a genuine issue of material fact, the moving party wins the motion for summary judgment ... But if the nonmoving party produces enough evidence to create a genuine issue of material fact, the nonmoving party defeats the motion. 10 11 12 13 14 15 16 17 18 19 210 F.3d at 1102-1103. 20 D. CASSABON DEFENDANTS’ STATEMENT OF UNDISPUTED 21 MATERIAL FACTS. 22 1. Issue No. 1: Plaintiff Cannot Maintain a 23 Claim for Violation of 42 U.S.C. § 1983 Based Upon Absolute 24 Witness Immunity. 25 DUF 1: The District Attorney’s Office 26 13 1 filed criminal charges against Plaintiff. Plaintiff’s Response: UNDISPUTED. 2 3 DUF 2: A preliminary hearing was conducted on or 4 about July 30, 2004, wherein the Court found there was sufficient 5 evidence to support the charges. 6 Plaintiff’s Response: UNDISPUTED. 7 DUF 3: In approximately October of 2004, the 8 District Attorney’s Office retained Cassabon Defendants as an 9 expert in this matter. Plaintiff’s Response: UNDISPUTED. 10 11 DUF 4: The District Attorney’s Office asked the 12 Cassabon Defendants to go through the documents to determine if 13 there was anything suspicious. Plaintiff’s Response: Disputed. 14 As defendant 15 Fung testified at the criminal trial, his assignment was “to 16 determine whether there [were] assets misappropriated at the 17 Yosemite Chevron gas station, and if any, estimate the amount of 18 . . . embezzlement.” Trial Transcript, p. 320. In his deposition, 19 Fung described his assignment as “[t]racing the money.” Fung 20 Deposition, p. 12. 21 Court’s Ruling: DUF 6 is DISPUTED. 22 DUF 5: No one at the District Attorney’s Office 23 ever asked or informed Cassabon Defendants that they needed to 24 fabricate evidence or that the source documents were fabricated. 25 26 Plaintiff’s Response: Disputed, since the source documents themselves revealed this information. In 14 1 Bettencourt’s expert report, he declared that the spreadsheet 2 provided by defendant Robert Abbate and the work product of 3 Cassabon were indicative of false, fabricated and/or misleading 4 work product Bettencourt opined that the defendants' accounting 5 work was not merely substandard or negligent but instead is 6 reflective of false, fabricated, and/or misleading work. See 7 Bettencourt Report, Exhibit A. In his deposition, Bettencourt 8 confirmed his report and further testified that Abbate’s and 9 Cassabon’s work product was misleading and misstated the 10 evidence. See Bettencourt Deposition, pp. 33, 38, 78, 97. 11 Bettencourt testified that it was not reasonable or in good faith 12 to attribute all of the voids on a particular shift to a specific 13 employee. Bettencourt Deposition, p. 157-158, 161. Both Abbate’s 14 spreadsheet and Fung’s report were similar in this respect. 15 Bettencourt Deposition, p. 160, 161. Bettencourt is of the 16 opinion that these actions could raise an inference of bad faith 17 that could be found by a jury. Bettencourt Deposition, p. 163. 18 Court’s Ruling: DUF 5 is DISPUTED. That 19 Plaintiff’s expert, Mr. Bettancourt, opines that Mr. Fung’s 20 analysis was flawed to the extent no reasonable accountant would 21 attribute all voids is indicative of bad faith, does not 22 establish that anyone at the District Attorney’s Office asked or 23 informed Mr. Fung to fabricate evidence against Plaintiff or 24 informed Mr. Fung that the source documents underlying Mr. 25 Abbate’s spreadsheet or Mr. Fung’s report were fabricated, i.e., 26 invented or made up. This requires analysis of whether the 15 1 District Attorney’s investigator examined the materials and 2 ignored the problems of knew the “evidence” was fabricated. 3 DUF 6: None of the Abbate Defendants ever asked or 4 informed the Cassabon Defendants that they needed to fabricate 5 evidence to support the case against Plaintiff or that the source 6 documents were fabricated. Plaintiff’s Response: 7 8 grounds stated in response to DUF 5. Court’s Ruling: DUF 6 is DISPUTED for the 9 10 Disputed on the same same reason DUF 5 is disputed. 11 DUF 7: In analyzing the matter, the Cassabon 12 Defendants analyzed the frequency of voided transactions in 13 relationship to the total amount of sales transactions among the 14 various employees. 15 16 17 18 Plaintiff’s Response: UNDISPUTED. DUF 8: The Cassabon Defendants decided on the methodology to be utilized. Plaintiff’s Response: Disputed. Fung 19 testified in his deposition that the first thing he did after 20 Cassabon’s retention was to meet with defendant Hutton and the 21 then assigned prosecutor, James Swanson. Fung Deposition, p. 18. 22 During a one hour meeting, Fung was told that the prosecution 23 suspected that Fenters was stealing money by voiding 24 transactions. Fung Deposition, p. 18. 25 prosecution wanted him to analyze the pay point reports, a box of 26 which he received on that occasion. Fung Deposition, p. 20. Fung 16 Fung was told the 1 also received Hutton’s report which had Abbate’s spreadsheet as 2 an attachment. Fung Deposition, pp. 19, 22. Fung was told the 3 attachment was a spreadsheet prepared by Abbate himself. Fung 4 Deposition, p. 22. Overall, Fung’s approach was similar to the 5 Abbate’s spreadsheet approach. Bacciarini Deposition, p. 14. 6 Also disputed, to the extent that it implies a good faith 7 methodology was utilized. In Bettencourt’s expert report, he 8 declared that the spreadsheet provided by defendant Robert Abbate 9 and the work product of Cassabon were indicative of false, 10 fabricated and/or misleading work product Bettencourt opined that 11 the defendants' accounting work was not merely substandard or 12 negligent but instead is reflective of false, fabricated, and/or 13 misleading work. See Bettencourt Report, Exhibit A. 14 deposition, Bettencourt confirmed his report and further 15 testified that Abbate’s and Cassabon’s work product was 16 misleading and misstated the evidence. See Bettencourt 17 Deposition, pp. 33, 38, 78, 97. 18 was not reasonable or in good faith to attribute all of the voids 19 on a particular shift to a specific employee. Bettencourt 20 Deposition, p. 157-158, 161. Both Abbate’s spreadsheet and Fung’s 21 report were similar in this respect. Bettencourt Deposition, p. 22 160, 161. Bettencourt is of the opinion that these actions could 23 raise an inference of bad faith that could be found by a jury. 24 Bettencourt Deposition, p. 163. 25 26 In his Bettencourt testified that it Court’s Ruling: DUF 8 is DISPUTED. Plaintiff presents evidence that the Cassabon Defendants were 17 1 influenced by the District Attorney’s investigation and Abbate 2 spreadsheet in the methodology they used in preparing their 3 report; receipt of the Abbate spreadsheet, advisement of the 4 scope of the Cassabon Defendants’ retention, and a similarity of 5 methodology in the opinion of the prosecutor does not constitute 6 evidence raising a genuine issue that the Cassabon Defendants did 7 not decide on the methodology. DUF 9: On approximately October 31, 2004, the 8 9 Cassabon Defendants generated a report. Plaintiff’s Response: UNDISPUTED. 10 DUF 10: On or about October 7, 2005, Defendant 11 12 Victor Fung of Cassabon & Associates testified in the criminal 13 trial. 14 Plaintiff’s Response: UNDISPUTED. 15 DUF 11: Plaintiff never filed any motion to 16 exclude and/or strike the report and testimony of the Cassabon 17 Defendants. 18 Plaintiff’s Response: UNDISPUTED. 19 DUF 12: Plaintiff never requested a special 20 admonition or instruction based on the testimony and report of 21 the Cassabon Defendants. 22 23 Plaintiff’s Response: UNDISPUTED. DUF 13: Plaintiff had the opportunity to cross- 24 examine Mr. Fung, introduce her own expert testimony and comment 25 on the evidence during closing argument. 26 Plaintiff’s Response: UNDISPUTED. 18 DUF 14: Plaintiff’s only interaction with the 1 2 Cassabon Defendants was her receiving a copy of the report from 3 her counsel and her being present during Mr. Fung’s testimony. Plaintiff’s Response: UNDISPUTED. 4 DUF 15: Since the trial, Plaintiff has had no 5 6 interaction with the Cassabon Defendants. Plaintiff’s Response: UNDISPUTED. 7 8 9 10 11 12 13 2. Issue No. 2: Plaintiff Cannot Maintain a Claim for Violation of California Civil Code § 52.1 Because She Cannot Meet the Requisite Elements. DUF 16: The Cassabon Defendants incorporate by reference Facts Nos. 1-15 as if fully set forth herein. DUF 17: Except for the alleged content of their 14 Court testimony, the Cassabon Defendants never made any 15 threatening remarks or gestures toward Plaintiff. 16 Plaintiff’s Response: Disputed. As a result 17 of Abbate’s and the other defendants’ misconduct, Fenters was 18 threatened with the prospect of conviction and incarceration. See 19 Plaintiff’s Deposition, p. 401-402. Indeed, the lead prosecutor 20 testified that he would have indeed sought to incarcerate and 21 seek full restitution against Fenters had she been convicted. See 22 Bacciarini Deposition, p. 64-66. 23 Court’s Ruling: DUF 17 is UNDISPUTED. 24 Although the accountant’s report and testimony is allegedly based 25 on false or misleading data, such conduct does not amount to 26 threatening remarks against Plaintiff. 19 DUF 18: The Cassabon Defendants never touched or 1 2 made physical contact with Plaintiff. Plaintiff’s Response: UNDISPUTED. 3 DUF 19: Except for the alleged content of their 4 5 Court testimony, the Cassabon Defendants never threatened 6 Plaintiff. Plaintiff’s Response: 7 8 Disputed on the same grounds as stated in response to DUF 17. Court’s Ruling: DUF 19 is UNDISPUTED. 9 DUF 20: Except for the content of their Court 10 11 testimony, Plaintiff never felt intimidated by the Cassabon 12 Defendants. Plaintiff’s Response: Disputed on the same 13 14 grounds as stated in response to DUF 17. Court’s Ruling: DUF 20 is DISPUTED. 15 16 Plaintiff is entitled to attest to her own state of mind, which 17 Defendants can dispute. 18 3. Issue No. 3: Plaintiff Cannot Maintain a 19 Claim for Violation of California Civil Code § 52.1 Because Such 20 Claim is Barred by Defenses Under California Civil Code § 47. 21 DUF 21: The Cassabon Defendants incorporate by 22 reference Facts Nos. 1-20 as if fully set forth herein. DUF 22: The Cassabon Defendants provided a copy of 23 24 its report to the District Attorney’s Office pursuant to its 25 retention. 26 Plaintiff’s Response: UNDISPUTED. 20 DUF 23: The Cassabon Defendants testified at trial 1 2 at the request of the District Attorney’s Office. Plaintiff’s Response: UNDISPUTED. 3 4. 4 Issue No. 4: Plaintiff Cannot Maintain a 5 Claim for Malicious Prosecution as She Cannot Meet the Requisite 6 Elements. 7 8 9 10 DUF 24: The Cassabon Defendants incorporate by reference Fact Nos. 1-23 as if fully set forth herein. DUF 25: The Cassabon Defendants were not retained until after the preliminary hearing. Plaintiff’s Response: UNDISPUTED. 11 12 DUF 26: From the commencement of the action until 13 its conclusion, the District Attorney’s Office had the sole 14 discretion whether to prosecute or dismiss the action. Plaintiff’s Response: Disputed, to the extent 15 16 that Bacciarini testified that Cassabon’s analysis permitted the 17 case to proceed to trial to the extent that it confirmed Abbate’s 18 spreadsheet analysis. Bacciarini Deposition, p. 70. The Cassabon 19 defendants thus did have an influence over the case, which was 20 the result of their improper and bad faith actions as 21 demonstrated elsewhere herein. 22 shows these actions were unduly influenced by Abbate’s 23 misrepresentations. 24 in good faith in proceeding to a preliminary hearing and trial. 25 Bacciarini Deposition, p. 87-88. However, Abbate misrepresented 26 to Hutton that only one employee worked on the cash register in a Further disputed, as the evidence The prosecution relied on Abbate’s operating 21 1 given shift, although he knew the opposite was true on a daily 2 basis. Hutton Deposition, p. 20, 74; Abbate Deposition, p. 81, 3 99. Indeed, employees’ log on codes to the cash register were 4 typically the last four digits of their phone numbers, and the 5 phone numbers of employees were posted in the store. Abbate 6 Deposition, p. 85. Abbate did not expect employees to review 7 their shift reports on a line by line basis to ensure they were 8 responsible for each transaction. Abbate Deposition, p. 90-91. 9 Abbate also never told Bacciarini that more than one employee 10 could have worked on the cash register during a given shift. 11 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 See Preliminary hearing Transcript, p. 8, 17; Trial Transcript, 16 p. 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. Hutton Deposition, p. 33- 25 34. Abbate’s financial analysis was one of the reasons that 26 Hutton submitted the case against Fenters for filing. Hutton Until the time the Cassabon firm was 22 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 misrepresentations at the preliminary 21 hearing and trial by again merely referring to Wilson as an 22 “exemployee.” See Preliminary Hearing Transcript, p. 41; Trial 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 There never was an anonymous employee, and 23 1 report. Hutton Deposition, p. 90-91. Abbate also initially told 2 Hutton that he had 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 6 not been cut during this time period. See Trial Transcript, pp. 7 235-236. Indeed, even after Aceves first admitted stealing in 8 March 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. Hutton 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. The record also shows that the 24 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 Fenters, 12 refuted this allegation at trial. See Trial Transcript, p. 418.) 13 Hutton also never obtained any shift records that corroborated 14 the allegation that Fenters’ hours were cut in February 2003 due 15 to her being suspected of stealing. Hutton Deposition, p. 71. 16 Hutton “assumed there was a friendly connection between Fenters 17 and Aceves but made no effort to confirm that through 18 investigation, i.e., phone records, or other Yosemite Chevron 19 employees, Hutton Deposition, p. 31. Hutton also never asked for 20 specifics regarding where Aceves and Fenters were when Fenters 21 allegedly taught him to do illegal voiding. Hutton Deposition, p. 22 31-32. Hutton never investigated any information suggesting that 23 Abbate was a drug user, although it was provided by the defense 24 during discovery and Hutton acknowledges that such matters can 25 have a bearing on a witness’ credibility in a case involving 26 alleged financial loss. Hutton Deposition, p. 83-84; Bacciarini 25 1 Deposition, p. 88. Hutton never asked Aceves if he had prior 2 cash register experience. Trial Transcript, p. 391. Hutton never 3 investigated how many employees worked or could use the register 4 in a given shift. Trial Transcript, p. 393. 5 shows that Abbate was part of the District Attorney’s 6 investigative team for purposes of Fenters’ criminal case. Hutton 7 acknowledges that Abbate was assisting in the District Attorney’s 8 investigation of the Fenters matter between May 14 and June 4, 9 2003. The evidence also Hutton Deposition, p. 43. Abbate also acknowledges he 10 assisted in the investigation and had his most extensive 11 contacts with Hutton during the investigative phase of the 12 Fenters criminal case. Abbate Deposition, p. 104, 124. 13 testified an interview protocol was set up between Abbate and 14 himself with respect to the June 4, 2003 interview of 15 Aceves. Hutton Deposition, p. 42-43. 16 4, 2003 interview with Aceves. Hutton Deposition, p. 44. Abbate 17 actually conducted the first part of that interview, which was 18 done in conformity with guidelines provided by Hutton. 19 Deposition, pp. 44-45; Abbate Deposition, p. 109-110. 20 provided an additional eight months of financial analysis at the 21 District Attorney’s request. Hutton Deposition, p. 44; Abbate 22 Deposition, p. 79. Hutton spent approximately 20 hours doing his 23 work on the Fenters case, while Abbate worked 35 hours, not 24 including time he spent assisting in interviews at Hutton’s 25 direction. Hutton Deposition, p. 57; Abbate Deposition, p. 61-62. 26 All of Hutton’s investigation is reflected in his initial and 26 Hutton Abbate also set up the June Hutton Abbate 1 follow up reports. Hutton Deposition, p. 57. Bacciarini, the 2 lead prosecutor at the preliminary hearing and at trial, has as 3 many contacts with Abbate as he did Hutton in preparation for the 4 preliminary hearing. Bacciarini Deposition, pp. 10-11. 5 Additionally, James Swanson, who was the prosecutor handling the 6 case against Fenters after the preliminary hearing until just 7 before it went to trial, told Fenters’ attorney that he was not 8 permitted to resolve the case via a misdemeanor petty theft plea. 9 See Virgil Fenters Deposition, pp. 32, 35-36. This is further 10 circumstantial evidence of the District Attorney’s compromised 11 status in the Fenters criminal case. Court’s Ruling: DUF 26 is UNDISPUTED. 12 13 Plaintiff’s recitation of evidence is irrelevant and immaterial 14 to the fact that the District Attorney’s Office had the sole 15 legal discretion whether to prosecute Plaintiff. 16 has not shown is that the Cassabon Defendants had any knowing 17 participation in a scheme to wrongfully and unjustifiably 18 prosecute Plaintiff. What Plaintiff DUF 27: Plaintiff never had any interaction 19 20 with the Cassabon Defendants prior to receiving their report from 21 her counsel. 22 23 24 25 26 Plaintiff’s Response: UNDISPUTED. DUF 28: The Cassabon Defendants did not handle this matter any differently because it involved Tiffany Fenters. Plaintiff’s Response: grounds as stated in response to DUF 5. 27 Disputed on the same Court’s Ruling: DUF 28 is UNDISPUTED. 1 That 2 Plaintiff’s expert, Mr. Bettancourt, opines that Mr. Fung’s 3 analysis was flawed does not infer that anyone at the District 4 Attorney’s Office asked or informed Mr. Fung to fabricate 5 evidence against Plaintiff or informed Mr. Fung that the source 6 documents underlying Mr. Abbate’s spreadsheet or Mr. Fung’s 7 report were fabricated, i.e., invented or made up. 8 Plaintiff’s evidence does not permit an inference that the 9 Cassabon Defendants handled their responsibilities as retained Further, 10 expert for the prosecution any differently merely because their 11 investigation and report involved alleged embezzlement by 12 Plaintiff. 13 14 15 16 17 DUF 29: The Cassabon Defendants did not have any malice towards Plaintiff. Plaintiff’s Response: Disputed on the same grounds as stated in response to DUF 5. Court’s Ruling: DUF 29 is UNDISPUTED. That 18 Plaintiff’s expert, Mr. Bettancourt opines that Mr. Fung’s 19 analysis was flawed does not infer that anyone at the District 20 Attorney’s Office asked or informed Mr. Fung to fabricate 21 evidence against Plaintiff or informed Mr. Fung that the source 22 documents underlying Mr. Abbate’s spreadsheet or Mr. Fung’s 23 report were fabricated, i.e., invented or made up. 24 presents no evidence from which it may be inferred that the 25 Cassabon Defendants’ investigation and report was motivated by 26 malice toward Plaintiff. 28 Plaintiff 5. 1 Issue No. 5: Plaintiff Cannot Maintain a 2 Claim for Malicious Prosecution Because Such a Claim is Barred by 3 Defenses Under California Civil Code § 47. DUF 30: The Cassabon Defendants incorporate by 4 5 reference Fact Nos. 1-29 as if fully set forth herein. 6. 6 7 Claim for Punitive Damages Against the Cassabon Defendants. DUF 31: The Cassabon Defendants incorporate by 8 9 Issue No. 6: Plaintiff Cannot Maintain a reference Fact Nos. 1-30 as if fully set forth herein. ANALYSIS 10 E. 11 12 FIRST CAUSE OF ACTION FOR VIOLATION OF 42 U.S.C. § 1983. 13 The Cassabon Defendants move for summary judgment as to 14 Plaintiff’s cause of action for violation of Section 1983 on the 15 grounds of absolute witness immunity and lack of evidence of 16 conspiracy to fabricate evidence. 17 In Briscoe v. LaHue, 460 U.S. 325, 326 (1983), the Supreme 18 Court held that a witness has absolute immunity from liability 19 for civil damages under Section 1983 for giving perjured 20 testimony at trial. 21 Cir.2000), the Ninth Circuit applied Briscoe’s immunity to Terr, 22 a psychiatrist called by the prosecution who testified in 23 Franklin’s criminal trial based on charges by his daughter, 24 Franklin-Lipsker, that Franklin had murdered a childhood friend 25 twenty years earlier, and who was later sued by Franklin under 26 Section 1983. In Franklin v. Terr, 201 F.3d 1098 (9th Franklin alleged that Terr had conspired with 29 1 others to present perjured testimony at the criminal trial. 2 Ninth Circuit held: 3 4 5 6 7 8 9 10 11 12 13 14 15 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 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.’ 16 17 18 19 20 21 22 23 24 25 26 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 30 The 1 2 defendant who conspired to present the perjured testimony of another but did not testify as a witness herself. 3 201 F.3d at 1101-1102. 4 F.3d 975, 983 (9th Cir.2001): 5 6 7 8 See also Paine v. City of Lompoc, 265 Our cases and Spurlock [v. Satterfield, 167 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. 9 In Grey v. Poole, 275 F.3d 1113 (D.C.Cir. 2002), a social 10 worker submitted a statement to the court in connection with a 11 child neglect action. The District of Columbia Circuit held that 12 Poole was entitled to absolute witness immunity, concluding that 13 “[i]t does not matter whether Poole’s sworn statement was given 14 in oral or written form; what matters is that her statement was 15 the equivalent of sworn testimony in a judicial proceeding.” 275 16 F.3d at 1118; see also Morstad v. Dept. of Corrections & Rehab., 17 147 F.3d 741, 744 (8th Cir.1998)(“Because the court directed 18 Veenestra to evaluate Morstad and to testify at Morstad’s 19 probation revocation hearing, we conclude that Veenstra was 20 performing functions essential to the judicial process ... and 21 affirm the district court’s determination that Veenstra was 22 entitled to absolute immunity.” In Buckley v. Fitzsimmons, 919 23 F.2d 1230 (7th Cir.1990), reversed on other grounds, 509 U.S. 259 24 (1993), the Seventh Circuit addressed whether three expert 25 witnesses had absolute immunity for their pretrial activities of 26 31 1 evaluating the bootprint, writing reports, discussing the case 2 with prosecutors, and preparing to testify. 3 1245. 4 5 6 7 8 9 509 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 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. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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. 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 32 1 research out of court or appearing in more than one case. 2 3 4 5 6 7 8 9 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 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. 10 919 F.2d at 1245. 11 There is no allegation in the FAC that the Cassabon 12 Defendants specifically fabricated evidence presented at the 13 criminal trial. The FAC alleges that the evidence was fabricated 14 by Abbate, Hutton and Spencer before the criminal action was 15 filed against Tiffany. Paragraph 28 alleges that the Cassabon 16 Defendants “were brought into this criminal prosecution after the 17 judge who presided over the preliminary examination had expressed 18 doubt and criticism regarding the lack of any objective financial 19 evidence that Tiffany had committed a crime”. Paragraph 28 20 further alleges: 21 22 23 24 25 26 [I]nstead of making a serious, objective inquiry into the issues they were retained to examine, these defendants disregarded all of the above-outlined facts showing the embezzlement allegations baseless and incredible, as well as the professional standards that are supposed to be followed by accountants engaged to provide litigation services. As a result, these defendants produced misleading, result-oriented reports 33 that served to add a false air of legitimacy to the embezzlement charges and which permitted said charges to proceed to trial. 1 2 The Court denied the Cassabon Defendants’ motion to dismiss 3 4 the Section 1983 cause of action on the ground of absolute 5 witness immunity: Although this is a very close question, the allegations in Paragraph 28 permit an inference that the Cassabon Defendants fabricated the evidence they presented as a witness at the criminal trial by “produc[ing] misleading, result-oriented reports ....” This is sufficient to withstand the motion to dismiss under the standards set forth above; it provides Defendants fair notice of the claims against which they must defend. Whether the Cassabon Defendants are entitled to absolute witness immunity pursuant to Briscoe is a question of fact to be resolved at summary judgment or trial. 6 7 8 9 10 11 12 13 In moving for summary judgment, the Cassabon Defendants rely 14 on Plaintiff’s Omnibus Discovery Response (Rubin Decl., Ex. H, ¶ 15 4): 16 17 18 19 20 21 22 23 24 25 26 Plaintiff believes that the circumstantial evidence shows that the Cassabon firm, as part of the alleged conspiracy, disregarded sound accounting practices and even logic in an effort to support and supersede the findings of the financial ‘investigation’ of Robert Abbate himself. As plaintiff’s accounting expert, John Bettancourt can expound upon, and as he testified at the underlying criminal trial, the Cassabon firm’s analysis in this case was so shoddy and non-compliant with professional standards and sound accounting practice that it could only be explained by a desire not to reach a valid conclusion but instead support the false premises of Robert Abbate’s ‘investigation,’ which plaintiff contends was fabricated, misleading and false. Therefore, the Cassabon investigation was equally fabricated, misleading and false. 34 1 The Cassabon Defendants argue that the fact that Plaintiff and 2 her expert disagree with the methodology used by the Cassabon 3 Defendants does not mean that they violated Plaintiff’s 4 constitutional rights or that their conduct is beyond the scope 5 of absolute witness immunity. 6 were third parties who investigated, based on their expert 7 engagement, and testified about what they found. 8 Defendants argue that they are “covered squarely” by Briscoe and 9 that there is absolutely no evidence that the Cassabon Defendants The Cassabon Defendants note they The Cassabon 10 participated in the prosecution of Plaintiff in any other way 11 than their role as an expert witness. 12 Plaintiff responds that her evidence shows that the Cassabon 13 Defendants “did exactly what caused the Court to permit the 14 action against them to proceed past the pleadings, i.e., produce 15 misleading, result-oriented reports during the pretrial stages of 16 the underlying criminal case.” 17 the lead prosecutor, Mr. Bacciarini, acknowledged that the 18 Cassabon Defendants’ reports permitted the case to proceed to 19 trial to the extent they confirmed Defendant Abbate’s initial 20 spreadsheet analysis, and that the Cassabon Defendants’ work was 21 similar to that of Defendant Abbate’s in terms of methodology and 22 approach. 23 Defendants were retained by the District Attorney’s Office after 24 Defendant Abbate’s spreadsheet analysis was ruled inadmissible at 25 the preliminary hearing, making obtaining a supporting opinion of 26 a forensic accountant crucial to continuation of the criminal Plaintiff refers to evidence that Plaintiff refers to evidence that the Cassabon 35 1 case. Plaintiff refers to Mr. Bettancourt’s opinion that the 2 Cassabon Defendants’ reports were misleading and could be 3 consistent with a finding that they were prepared in bad faith. 4 Plaintiff refers to Defendant Fung’s testimony that he developed 5 no approach distinct from that of Defendant Abbate, did not 6 review any controls of Yosemite Chevron or review to determine if 7 the business records utilized were reliable, and that he relied 8 “without scrutiny upon an obviously misleading premise, i.e., 9 that all of the voids on a single shift could be attributed to a 10 single employee, although he knew otherwise and developed 11 specious means of ‘discounting’ this knowledge.” 12 contends: 13 14 15 16 17 18 19 20 21 22 Plaintiff The collective effect of these facts is more than sufficient to support the allegations that the Court found to be sufficient, and, thus, to preclude summary judgment as well. This is not a case where the Cassabon Defendants are being sued on items covered by witness immunity, trial testimony or preparation therefor. Instead the record shows they are civil rights defendants because they create false, result oriented reports that even the lead prosecutor acknowledges were central to the continuation of the criminal case to trial. Morever, the inference of bad faith created by the evidence ... shows that there is a triable issue of fact as to the motive of the Cassabon defendants. The Cassabon Defendants reply that Plaintiff’s contentions 23 do not come within the exception set forth in Buckley v. 24 Fitzsimmons, supra, 919 F.2d at 1245: 25 26 Briscoe holds that the presentation of testimony may not be the basis of liability, even if the witness deliberately misleads the 36 1 2 3 4 5 6 7 8 9 10 11 12 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. 13 The Cassabon Defendants reiterate that there is no evidence that 14 they undertook any action independent of the criminal litigation. 15 The Cassabon Defendants were retained after the criminal action 16 was filed and the probable cause hearing was conducted to assist 17 in the preparation of trial and to provide trial testimony. 18 The Cassabon Defendants assert that there is a dearth of 19 evidence to support any allegation that they fabricated evidence. 20 Even if Mr. Bettancount’s expert declaration is considered, the 21 Cassabon Defendants refer to Mr. Bettancourt’s deposition 22 testimony that he could not opine whether the Cassabon Defendants 23 fabricated evidence, (Bettancourt Dep, 39:22-40:2, 64:17-20, 24 76:1-4, 97:8-12, 153:23-154:3), that the Cassabon Defendants did 25 not fabricate any of the source documents and accurately 26 37 1 reflected the source documents in their report, (Bettancourt 2 Dep., 55:23-56:2, 77:8-11). 3 deposition testimony that the analysis by the Cassabon Defendants 4 may show a suspicion of embezzlement but their report misstated 5 the probative value based on the lack of internal controls at 6 Yosemite Chevron. 7 is insufficient to create a material issue of fact that they 8 fabricated evidence. 9 v. Fitzsimmons, id.: 10 11 12 13 14 They refer to Mr. Bettancount’s This evidence, the Cassabon Defendants argue, Again, the Cassabon Defendants cite Buckley 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. 15 The Cassabon Defendants reiterate that the absolute witness 16 immunity doctrine means nothing if the aggrieved party can say 17 that your misleading testimony is immunized but the preparation 18 of your misleading testimony is not. 19 Plaintiff has no evidence that the Cassabon Defendants 20 fabricated any evidence as described in Buckley. In Franklin, 21 the Ninth Circuit applied absolute witness immunity to 22 allegations that the witness conspired to present perjured 23 testimony, i.e., fabricated testimony, and the immunity applied. 24 The Cassabon Defendants move for summary judgment that 25 Plaintiff cannot avoid absolute witness immunity by arguing that 26 38 1 they conspired with other Defendants. 2 Terr, supra, 201 F.3d at 1102; Hunt v. Bennett, 17 F.3d 1263, 3 1267-1268 (10th Cir.), cert. denied, 513 U.S. 832 (1994); Jones 4 v. Cannon, 174 F.3d 1271, 1288-1289 (11th Cir.1999). 5 Cassabon Defendants further assert that Plaintiff has no evidence 6 that they conspired with other defendants to present false expert 7 witness testimony at Plaintiff’s criminal trial. 8 9 See, e.g., Franklin v. The Plaintiff responds that the Cassabon Defendants “appear to argue that they are not state actors for purposes of Section 10 1983, but these defendants, like the Abbate defendants, 11 erroneously contend that they can only be found to be state 12 actors on one of the several possible bases, in this instance 13 conspiracy rather than control as argued by the Abbates.” 14 Plaintiff completely misses the Cassabon Defendants’ point. 15 They do not move for summary judgment on the ground that they are 16 not state actors; rather, they correctly contend that Plaintiff 17 cannot overcome absolute witness immunity by arguing that the 18 Cassabon Defendants conspired with other defendants to present 19 false expert opinion testimony at Plaintiff’s criminal trial. 20 Further, Plaintiff presents no evidence from which such a 21 conspiracy may be inferred. 22 The Cassabon Defendants’ motion for summary judgment as to 23 the First Cause of Action on the ground of absolute witness 24 immunity is GRANTED.2 25 2 26 This conclusion makes unnecessary resolution of the Cassabon Defendants’ motion for summary judgment as to Plaintiff’s prayer 39 1 2 F. THIRD CAUSE OF ACTION FOR VIOLATION OF CALIFORNIA CIVIL CODE § 52.1. 3 The Cassabon Defendants move for summary judgment as to 4 Plaintiff’s claim that they violated California Civil Code § 5 52.1, on the grounds that Plaintiff cannot establish the 6 requisite elements and that the claim is barred by the absolute 7 litigation privilege set forth in California Civil Code § 47, 8 California Civil Code § 52.1(b) provides that “[a]ny 9 individual whose exercise or enjoyment of rights secured by the 10 Constitution or laws of the United States, or of rights secured 11 by the Constitution or laws of this state, has been interfered 12 with, or attempted to be interfered with, as described in 13 subdivision (b), may institute and prosecute ... a civil action 14 for damages, including, but not limited to, damages under Section 15 52, injunctive relief, and other appropriate equitable relief to 16 protect the peaceable exercise or enjoyment of the right or 17 rights secured.” 18 Attorney General, district attorney or city attorney “[i]f a 19 person or persons, whether or not acting under color of law, 20 interferes by threats, intimidation, or coercion, or attempts to 21 interfere by threats, intimidation, or coercion, with the 22 exercise or enjoyment by any individual ... of rights secured by 23 the Constitution or laws of the United States, or the rights 24 secured by the Constitution or laws of this state ....” Section 52.1(a) provides for an action by the 25 26 for punitive damages in connection with the First Cause of Action. 40 1 2 3 4 5 The Court denied the Cassabon Defendants’ motion to dismiss this cause of action: The Cassabon Defendants seek dismissal of the Third Cause of Action, contending that there are no allegations in the FAC of any specific threats, intimidation or coercion by the Cassabon Defendants within the meaning of Section 52.1. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 In Jones v. Kmart Corp., 17 Cal.4th 329, 334 (1998), the California Supreme Court explained that “section 52.1 does require an attempted or completed act of interference with a legal right, accompanied by a form of coercion.” See also Venegas v. County of Los Angeles, 32 Cal.4th 820, 843 (2004)(“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.”) Tiffany argues that Section 52.1 “does not require conduct that ‘interferes by threats, intimidation, or coercion’ with a claimant’s exercise or enjoyment of her constitutional rights occur simultaneously with the resultant constitutional violation” and that Section 52.1 does not “require that this conduct play a direct role in bringing about the constitutional violation.” Tiffany concedes that no case law addresses these issues specifically in the context of Section 52.1. However, she refers to McCalden v. California Library Association, 955 F.2d 1214 (9th Cir.1989), cert. denied, 504 U.S. 957 (1992) as “finding a claim for a violation of California Civil Code § 51.7 sufficient, although it alleged non-contemporaneous intimidating conduct that was not even conveyed directly to the victim”. In McCalden, the Ninth Circuit addressed the district court’s dismissal with prejudice of the claim by McCalden, a self-described “Holocaust revisionist”, under California Civil Code § 51.7 on the ground that the complaint did not sufficiently allege intimidation by threat of violence committed 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 to plaintiff’s person or property as required by Section 51.7. Section 51.7(a), as amended in 1984, provided in relevant part: 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 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: 25 26 The complaint establishes that no violence or intimidation was 42 1 2 3 4 5 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. 6 Id. at 1277-78 .... 7 8 9 10 11 12 13 14 15 16 17 18 19 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 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. 20 21 22 23 24 25 26 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 43 1 unnecessary restrictions into § 51.7. 2 955 F.2d at 1221-1222. 3 4 5 6 7 8 9 10 11 12 13 14 Tiffany argues that, because Section 52.1 does not require proof of animus against the plaintiff, “[i]t would therefore make little sense that the more general Bane Act would require a closer nexus between the perpetrator’s threatening acts and the constitutional violation than does the Unruh Act.” Contending that Section 52.1 is a more general statute that should be construed more broadly, Tiffany argues: [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. 15 16 17 18 19 20 Although the Cassabon Defendants have the better of this argument, whether Tiffany’s position that general “possibility of incarceration” is ultimately sustainable against them presents a mixed issue of fact and law that will benefit from factual development. Given the standards governing resolution of a motion to dismiss, the FAC marginally alleges a claim for violation of Section 52.1 to require the Cassabon Defendants’ response. 21 The Cassabon Defendants argue that Plaintiff has no evidence 22 that they interfered with or attempted to interfere with 23 Plaintiff’s constitutional rights, accompanied by threats, 24 intimidation or coercion. The Cassabon Defendants cite Austin B. 25 v. Escondido Union School District, 149 Cal.App.4th 860, 883 26 44 1 (2007): 6 The word ‘interferes’ as used in the Bane Act means ‘violates.’ ... The essence of a Bane Act claim is that the defendant, by the specified improper means (i.e., ‘threats, intimidation or coercion’), tried to or did prevent the plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to do something he or she was not required to do under the law .... 7 The Cassabon Defendants refer to Plaintiff’s deposition 2 3 4 5 8 testimony that she never had any communication from or physical 9 contact with anybody with Cassabon & Associates or with Victor 10 Fung and that she never felt physically threatened by Victor 11 Fung. 12 that the Cassabon Defendants’ actions, whatever their effect, 13 involved threats, intimidation or coercion. 14 The Cassabon Defendants assert that there is no evidence Plaintiff responds that the evidence shows that the Cassabon 15 Defendants’ report was the basis for the continuation of the 16 felony criminal prosecution where Plaintiff faced the prospect of 17 incarceration. 18 that the Cassabon Defendants’ report enabled him to continue 19 prosecuting the criminal case through trial and that he would 20 have sought incarceration if Plaintiff had been convicted. 21 Plaintiff relies on the Court’s Order denying the motion to 22 dismiss and argues that the prospect of incarceration and loss of 23 liberty is inherently intimidating and coercive, despite the lack 24 of any direct, interpersonal contact between Plaintiff and the 25 Cassabon Defendants. 26 Plaintiff refers to Mr. Bacciarini’s testimony As the Cassabon Defendants note, Plaintiff cites absolutely 45 1 no case authority in support of her contention and argue: If this limited interaction could substantiate a claim under Section 52.1 and satisfy the requirements of ‘threats, intimidation or coercion,’ then any adverse percipient witness or expert witness who testifies in any judicial proceeding is potentially subject to this statutory claim. 2 3 4 5 6 That a plaintiff feels subjectively intimidated by an expert 7 who testifies on behalf of the prosecution in a criminal case 8 does not constitute interference with constitutional rights, 9 accompanied by threats, intimidation or coercion within the 10 meaning of Section 52.1. 11 supporting Plaintiff’s position is telling. 12 no contact between Plaintiff and the Cassabon Defendants until 13 Mr. Fung testified as an expert witness at trial. 14 McCalden, an actual threat was made; here, there is no such 15 evidence. 16 a violation of Section 52.1 under the facts of this case would 17 open the floodgates for liability for any person who is a witness 18 in a criminal trial. 19 The absence of case authority There was absolutely Even in The Cassabon Defendants correctly observe that finding The Cassabon Defendants further move for summary judgment on 20 the ground that speech alone does not support a Section 52.1 21 claim. 22 23 24 25 26 California Civil Code § 52.1(j) provides: Speech alone is not sufficient to support an action brought pursuant to subdivision (a) or (b), except upon a showing that the speech itself threatens violence against a specific person or group of persons; and the person or group of persons against whom the threat is directed reasonably fears that, because of 46 the speech, violence will be committed against them or their property and that the person threatening violence has the apparent ability to carry out the threat. 1 2 3 The Cassabon Defendants moved to dismiss the Section 52.1 4 claim against them in the First Amended Complaint on the ground 5 that the allegations of the FAC are that their speech caused the 6 violation of Section 52.1, not that they threatened or 7 intimidated Tiffany to forestall her from exercising her rights. 8 In denying the motion to dismiss, the Court ruled: “This claim is 9 arguably marginal. After factual development the court will be 10 able to evaluate the substance of this claim.”3 11 Plaintiff argues that summary judgment is not appropriate 12 because “the evidence shows that the Cassabon defendants are all 13 being sued not for mere speech, but rather for the preparation of 14 misleading and false reports that permitted a serious criminal 15 action to proceed to trial ....” 16 The Cassabon Defendants move for summary judgment on the 17 ground that Plaintiff’s claim against them is barred by the 18 litigation privilege set forth in California Civil Code § 47(b). 19 Section 47(b) bars a civil action for damages based on 20 statements made in any judicial proceeding, in any official 21 proceeding authorized by law, or in the initiation or course of 22 23 24 25 26 3 The Court granted the Cassabon Defendants’ motion to dismiss with prejudice the causes of action for false arrest, negligence, intentional infliction of emotional distress, and defamation alleged in the Complaint pursuant to Section 47(b) based on allegations that the Cassabon Defendants “produced misleading, result-oriented reports that served to add a false air of legitimacy to the embezzlement allegations.” 47 1 any mandate-reviewable proceedings authorized by law. The 2 litigation privilege provided in Section 47(b) applies to any 3 communication (1) made in judicial or quasi-judicial proceedings; 4 (2) by litigants or other participants authorized by law; (3) to 5 achieve the objects of the litigation; and (4) that have some 6 connection or logical relation to the action. 7 Contractor, Inc. v. Rhino Elec., 137 Cal.App.4th 1118, 1126 8 (2006). 9 statements and bars all tort causes of action based on them A.F. Brown Elec. Section 47(b) establishes an absolute privilege for such 10 except a cause of action for malicious prosecution. 11 California Federal Bank, 32 Cal.4th 350, 360 (2004). 12 47(b) protects false or fraudulent statements or representations 13 made in the course of litigation, see Rodas v. Spiegel, 87 14 Cal.App.4th 513, 519-520 (2001), or in contemplation of 15 litigation, see Carden v. Getzoff, 190 Cal.App.3d 907, 912-916 16 (1987), the filing of a false declaration, see Cantu v. 17 Resolution Trust Corp., 4 Cal.App.4th 857, 886 (1992), and the 18 filing of forged documents. 19 484, 488-489 (1972). 20 made during a trial or other proceedings, but may extend to steps 21 taken prior thereto, or afterwards.” 22 Cal.4th 1048, 1057 (2006). 23 Court, 2 Cal.App.4th 521, 529 (1992): 24 25 26 Hagberg v. Section See Pettitt v. Levy, 28 Cal.App.3d The privilege “is not limited to statements Rusheen v. Cohen, 37 As explained in Adams v. Superior The defendant may rely upon the defense of judicial privilege, Civil Code section 47, provided there is some reasonable connection between the act claimed to be privileged and the legitimate objects of the lawsuit in 48 1 2 3 4 5 which that act took place. The privilege is broadly applied to protect most publications within lawsuits provided there is some connection between the lawsuit and the publication ... Any doubt as to whether the privilege applies is resolved in favor of applying it. The Cassabon Defendants moved to dismiss this claim in the 6 First Amended Complaint pursuant to Section 47(b). 7 denied the motion to dismiss: 8 9 10 11 12 The Court Dismissal on this ground is not appropriate. Although the allegations of the FAC suggest that the allegations against the Cassabon Defendants will be subject to Section 47(b), ultimate resolution of this issue presents a mixed question of law and fact, including whether the Cassabon Defendants’ actions had collateral purposes which went beyond the litigation, to be resolved at summary judgment or trial. 13 The Cassabon Defendants argue that Plaintiff’s claim is 14 predicated on Defendant Fung’s trial testimony and his expert 15 report: “Clearly, these actions by Mr. Fung fall under the 16 parameters of the litigation privilege, as Mr. Fung took these 17 actions as part of a judicial proceeding to achieve the objects 18 of the litigation.” 19 Plaintiff responds that summary judgment based on Section 20 47(b) is not appropriate because “the evidence shows that the 21 Cassabon defendants are all being sued not for mere speech, but 22 rather for the preparation of misleading and false reports that 23 permitted a serious criminal action to proceed to trial ....” 24 In Block v. Sacramento Clinical Labs, Inc., 131 Cal.App.3d 25 386 (1982), the mother of a deceased infant brought an action 26 49 1 claiming that a county coroner was liable for publishing an 2 injurious falsehood by communicating to the district attorney an 3 allegedly negligently prepared report of the cause of the 4 infant’s death. 5 communication was absolutely privileged under Section 47 since 6 the report was performed and communicated at the request of the 7 district attorney in furtherance of its investigation whether 8 there was probable cause to initiate criminal charges relating to 9 the infant’s death. The Court of Appeal held that the coroner’s In Carden v. Getzoff, 190 Cal.App.3d 907 10 (1987), an anesthesiologist brought an action for abuse of 11 process and infliction of emotional distress against an 12 accountant, claiming that the accountant had manufactured false 13 evidence as an expert accounting witness for the 14 anesthesiologist’s former wife in a marital dissolution action. 15 The Court of Appeal sustained the trial court’s demurrer on the 16 ground of Section 47's absolute privilege. 17 Here, the Cassabon Defendants were retained by the District 18 Attorney to serve as an accounting expert at trial. They 19 prepared for trial and Mr. Fung gave trial testimony. 20 does not support Plaintiff’s distinction because the privilege 21 “is not limited to statements made during a trial or other 22 proceedings, but may extend to steps taken prior thereto, or 23 afterwards.” 24 supplemental state law claims asserted in the Complaint based on Case law Further, the Court dismissed with prejudice the 25 26 50 1 Section 47's absolute privilege.4 2 entitled to summary judgment as to the Third Cause of Action 3 pursuant to the Section 47(b) privilege. 4 5 The Cassabon Defendants are The Cassabon Defendants’ motion for summary judgment as to the Third Cause of Action is GRANTED. 6 G. 7 The Cassabon Defendants move for summary judgment as to the 8 9 FOURTH CAUSE OF ACTION FOR MALICIOUS PROSECUTION. cause of action for malicious prosecution. “To establish a cause of action for malicious prosecution, a 10 plaintiff must demonstrate that the prior action (1) was 11 initiated by or at the direction of the defendant and legally 12 terminated in the plaintiff’s favor, (2) was brought without 13 probable cause, and (3) was initiated with malice.” 14 Mittlesteadt, 41 Cal.4th 735, 740 (2007). Siebel v. 15 The Cassabon Defendants argue that summary judgment is 16 appropriate because there is no evidence that they commenced the 17 criminal prosecution against Plaintiff or directed it to be 18 filed. 19 20 The Cassabon Defendants moved to dismiss the FAC on this same ground. In denying the motion to dismiss the Court ruled: In Zamos v. Stroud, 32 Cal.4th 958 (2004), the California Supreme Court ruled that “[c]onfining the tort of malicious prosecution to the initiation of a suit without probable cause would be ... without 21 22 23 24 4 25 26 Because of these rulings, it is unnecessary to address the Cassabon Defendants’ assertion that they are entitled to summary judgment on the Third Cause of Action on the ground that their actions are privileged under California Civil Code § 47(c). 51 1 2 3 4 5 6 7 8 support in authority or in principle”, 32 Cal.4th at 966, and that “an attorney may be held liable for malicious prosecution for continuing to prosecute a lawsuit discovered to lack probable cause.” Id. at 970. Tiffany relies on Zamos in contending that “[o]ne who contributes to the continuation of an action instituted without probable cause and acts with malice may be liable for malicious prosecution.” Tiffany further asserts that witnesses may be held liable for malicious prosecution under California law, citing Kimmel v. Goland, 51 Cal.3d 202, 209 (1990) and Gootee v. Lightner, 224 Cal.App.3d 587, 591-592 (1990). 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Neither Kimmel nor Gootee involved a claim for malicious prosecution. However, Jacques Interiors v. Petrak, 188 Cal.App.3d 1363 (1987), is a malicious prosecution case against an insurance adjuster (Petrak), by a commercial tenant (Jacques), who was sued for subrogation by the insurer (Sentry) of a building damaged by fire, who was also Petrak’s employer. In rejecting Petrak’s argument that he could not be liable for malicious prosecution because the suit was filed after Sentry’s attorney, McCaskey, had conducted his own investigation, the Court of Appeal noted: ‘One may be civilly liable for malicious prosecution without personally signing the complaint initiating the ... proceeding. If a person, without probable cause and with malice, instigates or procures the [action], he is liable.’ ... ‘”[I]t is enough if [the defendant] was instrumental in setting the law in motion and caused the [action] to proceed.” ...’ ... ‘[T]he test of liability in an action for malicious prosecution is: Was defendant actively instrumental ... [or] the proximate and efficient cause of maliciously putting the law in motion[?] .... 26 52 188 Cal.App.3d at 1371-1372. See also Lujan v. Gordon, 70 Cal.App.3d 260, 264 (1977)(“There does not appear to be any good reason not to impose liability upon a person who inflicts harm by aiding or abetting a malicious prosecution which someone else has prosecuted.”). 1 2 3 4 5 The Cassabon Defendants argue that Jacques Interiors v. 6 Petrak, supra, 188 Cal.App.3d 1363, is “readily distinguishable” 7 from the facts in this case: Plaintiff alleges that the other defendants fabricated evidence to initiate the lawsuit [sic] against Plaintiff. The Cassabon Defendants were retained after charges were brought, and prepared result-oriented reports to support the embezzlement charges. The preparation of result-oriented reports to support charges that have already been filed is vastly different from the fabrication and destruction of evidence that leads to a lawsuit being filed. 8 9 10 11 12 13 14 In Petrak, Petrak was employed by Sentry Insurance Company 15 to adjust a fire loss in a building in which Jacques was a 16 tenant. 17 building’s owner, Holiday Investment Company. 18 the services of an independent fire investigator, Robert Lowe. 19 Shortly after Lowe began his investigation, he met with Petrak at 20 the site and pointed out burn patterns indicating that the fire 21 may have started in an area above Jacques’ suite under the 22 control of Holiday. 23 the fire had started in an extension cord on the floor of 24 Jacques’ suite, as had been suggested by the Los Angeles County 25 Sheriff’s Department arson investigator, Sergeant Francis. 26 receiving this information, Petrak ordered Lowe immediately to Sentry provided fire and liability insurance to the Petrak retained Lowe told Petrak there was no evidence that 53 Upon 1 cease his investigation and to write a report that would not 2 conflict with the conclusion of Sergeant Francis. 3 directed Lowe to send the 20 photographs Lowe had taken of the 4 fire site separately from the report. 5 as instructed without indicating that the cause suggested by 6 Sergeant Francis was incorrect, or that his investigation had 7 been stopped prematurely. 8 in such a way that the report could be used to support Sergeant 9 Francis’s opinion, even though Lowe totally disagreed with it. 10 In order to protect himself, Lowe sent the report with a cover 11 letter indicating that it was a “preliminary report” and stating 12 that the photographs were separate from the report, “which is not 13 our usual reporting procedure.” 14 accept assignments from Petrak. 15 Petrak also Lowe prepared the report The language of the report was couched Lowe thereafter refused to Petrak forwarded Lowe’s report to Sentry without informing 16 Sentry that the report had been written at his direction after he 17 stopped Lowe’s investigation. 18 photographs or the cover letter. 19 basis for subsequent communications with Sentry regarding a 20 subrogation claim against Jacques. 21 subrogation notice, he stated: “On the facts of the loss 22 disclosed by our investigation, we believe you are legally liable 23 for the damage.” 24 the building sued Holiday for subrogation and property damage, 25 Sentry forwarded all reports and letters from Petrak to its 26 attorney, John McCaskey, who began preparing a defense for Sentry did not receive the Petrak used Lowe’s report as a When Petrak put Jacques on When the insurance company of another tenant in 54 1 Holiday and Sentry. When McCaskey learned that a faulty 2 connection had been found on a Southern California Edison Company 3 power pole which might have caused the air conditioner above 4 Jacques’s suite to overheat, causing the fire, he retained 5 experts to investigate. 6 investigation, which concluded that there was a possible cause of 7 action against Edison. 8 both Jacques and Edison. 9 proceedings revealed what Petrak and Lowe had done, Sentry’s Lowe was also involved in this McCaskey filed cross-complaints against Subsequently, when discovery 10 cross-complaint against Jacques was voluntarily dismissed with 11 prejudice, and Sentry compensated Jacques for the damages it 12 suffered in the fire. 13 Petrak and Lowe for malicious prosecution. 14 Jacques’ case, Petrak’s motion for nonsuit was denied. 15 awarded compensatory and punitive damages against Petrak; Lowe 16 was exonerated. 17 Jacques then brought an action against At the close of The jury The Cassabon Defendants move for summary judgment on the 18 ground that a malicious prosecution action may not be maintained 19 against a retained expert witness in a criminal proceeding. 20 Cassabon Defendants assert that they have not located a single 21 case which has allowed a malicious prosecution claim to go 22 forward against an expert retained in a criminal proceeding. 23 This, they argue, makes sense, because it is the District 24 Attorney, not the expert witness, who files and pursues criminal 25 proceedings against individuals. 26 The The Cassabon Defendants did nothing to instigate or procure 55 1 the criminal prosecution against Plaintiff. 2 held to answer in the Superior Court before the Cassabon 3 Defendants were retained by the District Attorney’s Office. 4 Cassabon Defendants functioned as an expert witness for the 5 prosecution, no more and no less. 6 authority allowing a malicious prosecution action against a 7 prosecution witness in a criminal prosecution. The The Court has been cited no The Cassabon Defendants’ motion for summary judgment as to 8 9 Plaintiff had been the Fourth Cause of Action is GRANTED.5 CONCLUSION 10 11 For the reasons stated: 12 1. 13 The motion for summary judgment filed by Defendants Victor Fung and Cassabon & Associates, LLP is GRANTED; 2. 14 Counsel for the Cassabon Defendants shall prepare and 15 lodge a form of order that the rulings set forth in this 16 Memorandum Decision within five (5) days following the date of 17 service of this decision. 18 IT IS SO ORDERED. 19 Dated: 668554 December 29, 2010 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 5 This ruling makes unnecessary resolution of the Cassabon Defendants’ arguments that they are entitled to summary judgment s to the Fourth Cause of Action because expert witness testimony during a criminal prosecution is a mere “step” or interim proceeding in a prior action, the Fourth Cause of Action is barred by the interested person privilege set forth in California Civil Code § 47(c), or that Hogan v. Valley Hospital, 147 Cal.App.3d 119 (1983) and Johnson v. Superior Court, 25 Cal.App.4th 1564 (1994) bar the malicious prosecution claim. 56