Fonua et al v. The City of San Mateo et al, No. 4:2009cv05983 - Document 57 (N.D. Cal. 2011)
Court Description: ORDER GRANTING DEFENDANTS 48 MOTION FOR SUMMARY JUDGMENT. Signed by Judge Claudia Wilken on 6/13/2011. (ndr, COURT STAFF) (Filed on 6/13/2011)
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Fonua et al v. The City of San Mateo et al Doc. 57 1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 KALAKE FONUA and KENNETH ASHTON FONUA, No. 09-05983 CW 8 Plaintiffs, ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 9 United States District Court For the Northern District of California 10 11 12 v. THE CITY OF SAN MATEO; THE SAN MATEO POLICE DEPARTMENT; CHIEF OF POLICE SUSAN E. MANHEIMER; SAN MATEO POLICE OFFICERS LEISHMAN, BOLOGNA and BENNET; and SERGEANT MEFFORD, 13 Defendants. / 14 15 16 Defendants City of San Mateo, San Mateo Police Department, San 17 Mateo Chief of Police Susan Manheimer, San Mateo Police Officers 18 Leishman, Bologna, and Bennet and San Mateo Police Sergeant Mefford 19 move for summary judgment on all the claims in Plaintiffs’ 20 complaint. 21 father and son. 22 opposition to the motion. 23 and decided on the papers. 24 by the parties, the Court grants Defendants’ motion for summary 25 judgment. 26 27 28 Plaintiffs Kalake Fonua and Kenneth Ashton Fonua are Plaintiff Kenneth Ashton Fonua has filed an The matter was taken under submission Having considered all the papers filed BACKGROUND At about 12:16 a.m. on May 24, 2009, a group of people waved down Officer Tanya Neu in the parking lot of the King Center at 725 Dockets.Justia.com 1 Monte Diablo in San Mateo, California. 2 men on the west side of the parking lot near the curb. 3 men, Juan Pantoja had his shirt torn off. 4 was bleeding profusely from his right ear, which had been bitten 5 off. 6 Polynesian brothers, Sisivaivai and Sione Fonua, stood on the east 7 side of the parking lot, each holding the lid to a metal garbage 8 can. 9 wallet and the Fonua brothers told Officer Neu that they had been United States District Court For the Northern District of California 10 11 She observed three Hispanic One of the Francisco Barajas Avina Another man, Marco Cruz, was a witness to the events. Two Avina told Officer Neu that the Fonua brothers had stolen his “jumped.” Medics from the Fire Department arrived, treated Avina’s 12 injuries and transported him to Stanford Hospital. 13 Miller, Bologna and Leishman arrived a few minutes later. 14 Neu spoke with Pantoja and Cruz, with Officer Bennett, a certified 15 Spanish translator, interpreting. 16 were walking northbound on North El Dorado when Avina told Pantoja 17 that he saw some “black males” walking southbound on North El 18 Dorado. 19 shoved him in the shrubs. 20 a full beer can, which burst open. 21 into Pantoja’s left pants pocket and tried to get his wallet. 22 Later, Pantoja identified Sisivaivai Fonua as the man who had 23 grabbed him by the neck and thrown him in the shrubs. 24 Neu examined the shrubs, she found damage consistent with Pantoja’s 25 account. 26 street where she smelled freshly spilled beer. Officers Officer Pantoja and Cruz said that they One of these “black” men grabbed Pantoja by the neck and Another man hit Pantoja in the head with One of the men began reaching When Officer Pantoja also directed Officer Neu to a wet area in the 27 Pantoja and Cruz stated that a third “black” man attacked 28 2 1 Avina and described him as the largest of the three attackers, with 2 long curly hair. 3 the ground and demanded his money. 4 attacker, and the other two men assaulting Pantoja let him go and 5 joined in the assault of Avina. 6 inch piece of Avina’s upper right ear. 7 in the face and, as a result, his face was bloodied, lacerated and 8 swollen. 9 This man grabbed Avina by the neck, pushed him to Avina struggled against his One of the attackers bit off a one Avina was struck many times Pantoja and Cruz stated that the “black” assailants got up and United States District Court For the Northern District of California 10 ran away back toward the King Center and that Pantoja, Avina and 11 Cruz chased them to recover Avina’s wallet. 12 King Center, two of the assailants grabbed garbage can lids and 13 turned toward Pantoja, Avina and Cruz to strike them. 14 later confirmed that the two men holding the garbage can lids, who 15 were later detained in the parking lot, Sione and Sisivaivai Fonua, 16 were the men who attacked him and Avina. 17 continued to run eastbound. As they approached the Pantoja The third male suspect 18 Pantoja told Officer Neu that all of the assailants were 19 “black” men and described the third person who fled as six foot one 20 with a stocky build. 21 identify the third suspect if he saw him again. 22 men holding the garbage can lids were Polynesian, not African- 23 American, Officer Neu asked Pantoja to clarify the race of the 24 suspects. 25 color as the two Polynesian men detained in the parking lot. Pantoja stated that he would be able to Because the two Pantoja said all three assailants had the same skin 26 Pantoja took Officer Neu to the area where Avina had been 27 assaulted and, on the street, they found a wallet containing photos 28 3 1 of Avina’s family and a one dollar bill. 2 a fresh pool of blood. 3 Officer Neu also observed Avina’s cell phone was recovered nearby. Meanwhile, Officer Leishman interviewed Sione and Sisivaivai 4 Fonua. 5 were walking through the park area of the Martin Luther King 6 Center, when a Hispanic male punched Sisivaivai in the face. 7 came to his brother’s aid. 8 the face and kicked him in the neck. Sione Fonua said that Sisivaivai had been drinking. They Sione Sione admitted that he punched Avina in After they conducted the interviews, Officer Bennett informed 10 United States District Court For the Northern District of California 9 Officer Leishman that a third man had participated in the assault. 11 Officer Leishman asked Sisivaivai if there was a third individual 12 associated with him and Sione, and Sisivaivai replied, “I don’t 13 know, he might have been.” 14 Based on the evidence at the scene corroborating the 15 statements of the Hispanic victims, as well as the severity of 16 Avina’s injuries, Officer Leishman placed Sione and Sisivaivai 17 Fonua under arrest, charging them both with robbery and conspiracy 18 and charging Sione with assault with a deadly weapon and mayhem 19 based on his kicking Avina in the neck and biting a chunk of flesh 20 from his ear. 21 Officer Leishman believed that the third man involved in the 22 assault was Kenneth Fonua. 23 factors: (1) Kenneth Fonua was a close relative of Sione and 24 Sisivaivai Fonua; (2) Kenneth Fonua had a criminal history and was 25 known to be a member of the West Side Tonga gang, as were 26 Sisivaivai and Sione; (3) Kenneth Fonua had been observed by other 27 officers in the presence of Sisivaivai and Sione on separate 28 This belief was based on the following 4 1 occasions several days prior to the assault; (4) Kenneth Fonua fit 2 Pantoja’s physical description of the third assailant. 3 that the victims had identified the three assailants as “black 4 males” did not dissuade Officer Leishman from his belief that 5 Kenneth Fonua was the third assailant because the victims had 6 subsequently said that all three assailants generally had the same 7 skin tone and the two suspects arrested at the scene, Sione and 8 Sisivaivai Fonua, were Polynesian, not “black.” 9 The fact To test his suspicion that Kenneth Fonua was the third United States District Court For the Northern District of California 10 assailant, Officer Leishman created a “6 Pack Photo Line Up” by 11 entering Kenneth Fonua’s race, age, weight, hair and eye color, 12 visible tattoos and other physical characteristics into a database 13 of booking photos, which generated a pool of images. 14 Leishman picked the five individuals who were the closest facial 15 matches to Kenneth Fonua. 16 Officer On May 24, 2009, Officers Bennett and Leishman went to 17 Pantoja’s residence to conduct the “6 Pack Photo Line Up.” 18 Fonua’s photograph was in the third position. 19 the San Mateo Police Department Line Up Admonition to Pantoja. 20 Officer Leishman signed the Photo Line Up Admonition and then 21 stepped back while Officer Bennett showed Pantoja the photo line 22 up. 23 Fonua’s picture in the third position. 24 to Officer Bennett, “That’s the guy’s face for sure, but his hair 25 was lower.” 26 “the hair was combed back and looked like it had gel in it.” 27 Kenneth Fonua has admitted that his hair, at that time, was longer 28 Kenneth Officer Bennett read Without prompting, Pantoja immediately identified Kenneth Pantoja stated in Spanish When asked what he meant by “lower,” Pantoja replied, 5 1 than his hair appears in the photograph and he generally wore it 2 tied back in a ponytail. 3 that he was identifying the individual in position number 3. 4 Pantoja circled the number 3, indicating The officers thought that Pantoja’s clarification of how 5 Kenneth Fonua’s hair differed reinforced his identification. 6 During the time Pantoja was viewing the photographs, neither of the 7 officers made any verbal or nonverbal indication of which picture 8 represented the person that they suspected was the third assailant. 9 After Pantoja’s identification, Officer Leishman requested United States District Court For the Northern District of California 10 that a warrant be issued for Kenneth Fonua’s arrest for robbery, 11 battery, conspiracy and mayhem. 12 Fonua approached another officer who arrested him because the 13 officer was aware of Officer Leishman’s findings of probable cause. 14 Before the warrant issued, Kenneth Fifty days later, Kenneth Fonua’s attorney requested a live 15 lineup, at which Pantoja was unable to identify Kenneth Fonua. 16 Kenneth Fonua was then released from custody.1 17 18 LEGAL STANDARD Summary judgment is properly granted when no genuine and 19 disputed issues of material fact remain, and when, viewing the 20 evidence most favorably to the non-moving party, the movant is 21 clearly entitled to prevail as a matter of law. 22 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); 23 Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. Fed. R. Civ. P. 24 1 27 Neither party provides evidence of when Kenneth Fonua was released from custody. In their motion, Defendants indicate that he was released before the preliminary hearing. In his opposition, Kenneth Fonua states that he was released from custody after fifty days and after he “went to trial.” However, there is no evidence that he was brought to trial. 28 6 25 26 1 2 1987). The moving party bears the burden of showing that there is no 3 material factual dispute. 4 the opposing party’s evidence, if it is supported by affidavits or 5 other evidentiary material. 6 815 F.2d at 1289. 7 favor of the party against whom summary judgment is sought. 8 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 9 587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d United States District Court For the Northern District of California 10 11 Therefore, the court must regard as true Celotex, 477 U.S. at 324; Eisenberg, The court must draw all reasonable inferences in 1551, 1558 (9th Cir. 1991). Material facts which would preclude entry of summary judgment 12 are those which, under applicable substantive law, may affect the 13 outcome of the case. 14 are material. 15 (1986). 16 17 18 The substantive law will identify which facts Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 PRELIMINARY ISSUES I. Evidentiary Objections Defendants object to the statements Kenneth Fonua makes in his 19 opposition about attorney David King, who is representing 20 Defendants in this action. 21 evidentiary objections and has not relied on any inadmissible 22 evidence. 23 To the extent that the Court has relied on evidence to which 24 Defendants object, such evidence has been found admissible and the 25 objections are overruled. 26 II. Standing 27 28 The Court has reviewed these The Court will not discuss each objection individually. Defendants argue that Kalake Fonua, Kenneth Fonua’s father, 7 1 lacks standing to sue because there is no cognizable theory under 2 which he might recover in that he did not suffer any injury. 3 Kenneth Fonua does not address this argument in his opposition and, 4 thus, concedes it. 5 Defendants on the claims of Kalake Fonua. Therefore, summary judgment is granted to 6 7 DISCUSSION In his complaint, Kenneth Fonua asserts the following causes 8 of action: (1) arrest without probable cause; (2) kidnaping; 9 (3) false imprisonment; (4) intentional infliction of emotional United States District Court For the Northern District of California 10 distress; (5) violation of federal due process rights; 11 (6) defamation; and (7) vicarious liability against Police Chief 12 Manheimer and the City of San Mateo. 13 I. Claims Based on Probable Cause 14 Kenneth Fonua’s federal due process claim and state claims for 15 false arrest and false imprisonment are all based on his arrest, 16 allegedly without probable cause. 17 18 19 They are addressed together. A. Legal Standard 1. Federal Due Process Claim Under federal law, a claim of unlawful arrest is cognizable 20 under 42 U.S.C. § 1983 for violation of the Fourth Amendment's 21 prohibition against unreasonable search and seizure if the 22 allegation is that the arrest was without probable cause or other 23 justification. 24 Larson v. Neimi, 9 F.3d 1397, 1400 (9th Cir. 1993). 25 supported by probable cause if, under the totality of the 26 circumstances known to the arresting officer, a prudent person 27 would have concluded that there was a fair probability that the 28 Pierson v. Ray, 386 U.S. 547, 555-558 (1967); 8 An arrest is 1 defendant had committed a crime. 2 975, 980 (9th Cir. 2010); Beier v. City of Lewiston, 354 F.3d 1058, 3 1065 (9th Cir. 2004). 4 Luchtel v. Hagemann, 623 F.3d The inquiry is not whether the suspect actually committed the 5 offense, but whether a reasonable officer would have had probable 6 cause to think that the suspect committed the offense. Blankenhorn 7 v. City of Orange, 485 F.3d 463, 475 (9th Cir. 2007). "'[P]robable 8 cause may be founded upon hearsay and upon information received 9 from informants, as well as upon information within the affiant's United States District Court For the Northern District of California 10 own knowledge that sometimes must be garnered hastily.'" 11 Parks, 450 F.3d 1059, 1066 (9th Cir. 2006) (quoting Franks v. 12 Delaware, 438 U.S. 154, 165 (1978)). 13 detention or false imprisonment, absent a cognizable claim for 14 wrongful arrest, will not ordinarily state an independent claim 15 under § 1983. 16 Hart v. A claim for wrongful Baker v. McCollan, 443 U.S. 137, 142-145 (1979). Liability may be imposed on an individual defendant under 17 § 1983 if the plaintiff can show that the defendant proximately 18 caused deprivations of his federally protected rights. 19 Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of 20 Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981). 21 causation must be individualized and focus on the duties and 22 responsibilities of each individual defendant whose acts or 23 omissions are alleged to have caused a constitutional deprivation. 24 Leer, 844 F.2d at 633. 25 Leer v. The inquiry into Respondeat superior is not a sufficient basis for imposing 26 liability under § 1983. 27 Services, 436 U.S. 658, 663-64 n.7 (1978) (no liability for local 28 Monell v. New York City Dep't of Social 9 1 governments under theory of respondeat superior); Ybarra v. Reno 2 Thunderbird Mobile Home Village, 723 F.2d 675, 680 (9th Cir. 1984). 3 In order to establish liability of a supervisor, a plaintiff must 4 submit evidence showing that the supervisor proximately caused 5 deprivation of his rights, Harris, 664 F.2d at 1125, or that the 6 supervisor failed properly to train or supervise personnel, which 7 resulted in the alleged deprivation, that the alleged deprivation 8 resulted from official policy or custom for which the defendant was 9 responsible, or that the defendant knew of the alleged misconduct United States District Court For the Northern District of California 10 and failed to act to prevent future misconduct. 11 at 680-81; Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 12 2. State Torts of False Arrest and False Imprisonment 13 Ybarra, 723 F.2d False imprisonment under California law is the "'unlawful 14 violation of the personal liberty of another.'" 15 of Los Angeles, 141 F.3d 1373, 1379 (9th Cir. 1998). 16 is not a different tort; it is merely one way of committing a false 17 imprisonment. 18 false arrest or false imprisonment are: (1) the non-consensual, 19 intentional confinement of a person, (2) without lawful privilege, 20 and (3) for an appreciable period of time, however brief.” 21 v. United States, 511 F.3d 839, 851 (9th Cir. 2007). 22 not liable for false imprisonment or false arrest if they “had 23 reasonable cause to believe the arrest was lawful.” 24 Sup. Ct., 140 Cal. App. 4th 488, 510 (2006). 25 26 Id. False arrest In California, “the elements of a claim of Tekle Officers are O’Toole v. Reasonable cause to arrest exists when the facts known to the arresting officer would lead a reasonable person to have a strong suspicion of the arrestee’s guilt. This is an objective standard. 27 28 Martinez v. City 10 1 2 Id. at 511 (citations omitted). Under California Penal Code § 847, “no cause of action shall 3 arise against any peace officer . . . , acting within the scope of 4 his or her authority, for false arrest or false imprisonment 5 arising out of any arrest when . . . [t]he arrest was lawful . . .” 6 See e.g., Blankenhorn, 485 F.3d at 486-87 (arresting officers 7 entitled to immunity pursuant to § 847(b) on false imprisonment 8 claim where they had probable cause to arrest plaintiff for 9 trespassing and acted within scope of their authority). United States District Court For the Northern District of California 10 B. Analysis 11 As Defendants point out, the arresting officer has not been 12 named as a defendant in this action. 13 arresting officer had probable cause to arrest Kenneth Fonua based 14 on the fact that Defendant officers had probable cause to believe 15 that Kenneth Fonua was the third assailant involved in the attack 16 upon Avina and Pantoja. 17 the evidence described above. 18 more than sufficient to establish probable cause to arrest Kenneth 19 Fonua as the third assailant. 20 Defendants argue that the Defendants base their argument on all of These factors, taken together, were Kenneth Fonua argues that the officers did not have probable 21 cause to arrest him for the following reasons: (1) the victims 22 stated that the third assailant was “black,” and he is not black-- 23 he is Polynesian and his skin tone is light brown; (2) Pantoja’s 24 identification of him in the photo lineup must have been 25 manipulated by Officers Leishman and Bennett because, at the in- 26 person lineup, Pantoja could not identify him; and (3) there is no 27 other evidence that he was involved in the assault. 28 11 1 First, the fact that the victims described the third assailant 2 as a “black man” does not detract from the probable cause because 3 they described all of the assailants as “black.” 4 confirmed that the third assailant had the same skin tone as 5 Sisivaivai and Sione Fonua, who were positively identified as two 6 of the three assailants. 7 Sione Fonua are of Polynesian descent and have the same skin tone 8 as Plaintiff. 9 that all the assailants were “black.” The victims It is undisputed that Sisivaivai and Therefore, it is apparent that the victims thought The facts that Polynesians’ United States District Court For the Northern District of California 10 skin tone is light brown, or that Kenneth Fonua takes offense at 11 being called “black,” are of little importance to the determination 12 of whether the victims’ identification of Plaintiff was accurate. 13 14 15 Second, Plaintiff presents no evidence that Pantoja’s identification of his picture in the photo lineup was tainted. Finally, as discussed above, the gravamen of Kenneth Fonua’s 16 claims is whether a reasonable officer would have had probable 17 cause to think that Kenneth Fonua participated in the assault. 18 Blankenhorn, 485 F.3d at 475. 19 actually took part in the assault is not determinative of his 20 claims. 21 See Therefore, whether Kenneth Fonua In evaluating the validity of an eyewitness identification for 22 purposes of probable cause, the court determines whether the 23 officers employed an identification procedure so impermissibly 24 suggestive as to give rise to a substantial likelihood of 25 misidentification and, if so, whether the witness exhibited 26 sufficient indicia of reliability to protect the integrity of the 27 identification. 28 Grant v. City of Long Beach, 315 F.3d 1081, 1086 12 1 (9th Cir. 2002). 2 suggestive when it emphasizes a single individual, thereby 3 increasing the likelihood of misidentification. 4 Bagley, 772 F.2d 482, 493 (9th Cir. 1985); see, e.g., United States 5 v. Burdeau, 168 F.3d 352, 357-58 (9th Cir. 1999) (finding that 6 photo placement, hue and facial expression were insubstantial 7 differences between defendant's photograph and the others in a 8 photographic array and did not create an impermissible suggestion 9 that defendant was the offender). An identification procedure is impermissibly United States v. Indicia of reliability of an United States District Court For the Northern District of California 10 identification from a lineup include: (1) the opportunity to view 11 the perpetrator at the time of the crime; (2) the degree of 12 attention paid to the perpetrator; (3) the accuracy of the prior 13 description of the perpetrator; (4) the level of certainty 14 demonstrated at the time of the identification; and (5) the length 15 of time between the crime and the identification. 16 at 1087. 17 The photographic lineup was not suggestive. Grant, 315 F.3d The officers 18 conducting the photo lineup chose photographs of men whose facial 19 characteristics closely matched those of Kenneth Fonua. 20 Dec., Ex. 5, photo lineup. 21 look Polynesian. 22 hair; three have long hair and three have short hair. 23 Id. Leishman Five of the six men in the photo array All the men in the photo array have dark Even if the lineup had been suggestive, there were indicia of 24 reliability. 25 assailant at the time of the assault, when Sisivaivai let him go to 26 join the other two in assaulting Avina. 27 immediately after the crime, Pantoja described the third assailant 28 Pantoja had an opportunity to view the third 13 When questioned 1 as having physical characteristics consistent with those of Kenneth 2 Fonua. 3 Officer Neu that he could identify the third assailant if he saw 4 him again. 5 Pantoja was presented with the photo lineup just hours after the 6 assault. 7 Fonua from the photo array, Pantoja displayed a high level of 8 certainty, stating “that’s the guy’s face for sure.” 9 Leishman Dec. at ¶ 6. Also, at the scene, Pantoja told Carlson Dec., Ex. 1, Officer Neu’s Supplemental Report. Leishman Dec. at ¶ 11. Finally, in identifying Kenneth Although Kenneth Fonua speculates that the officers conducting United States District Court For the Northern District of California 10 the photo lineup “cunningly coached” or “deliberately pressured” 11 Pantoja to choose Kenneth Fonua’s photograph, there is absolutely 12 no evidence of this. 13 inability to identify him at the subsequent in-person lineup 14 negates his identification in the photo lineup is without merit. 15 The in-person lineup is not relevant to whether Defendant officers 16 had probable cause to arrest Kenneth Fonua immediately after the 17 assault took place. 18 Kenneth Fonua’s argument that Pantoja’s Kenneth Fonua has failed to raise a disputed issue of material 19 fact that the Defendant officers did not have probable cause to 20 arrest him. 21 imprisonment fail, his claim for kidnap also fails. 22 v. Cote, 199 Cal. App. 2d 762, 768 (1962) (because confinement was 23 incident to a lawful arrest, plaintiff could not recover for tort 24 of kidnaping). 25 Manheimer and the City of San Mateo are based upon a finding of 26 illegal conduct on the part of Defendant Officers, the claims 27 against these Defendants also fail. 28 14 Because the claims for false arrest and false See Farnsworth Furthermore, because the liability of Police Chief For all of these reasons, 1 summary judgment is granted in favor of Defendants on the federal 2 claim of a due process violation and the state claims for false 3 arrest, false imprisonment and kidnaping. 4 II. Defamation and Intentional Infliction of Emotional Distress 5 Defamation is the publication of false and unprivileged 6 information which exposes the defamed person to hatred, contempt, 7 ridicule, or obloquy, or causes the person to be injured in his or 8 her occupation. 9 57 Cal. App. 4th 1134, 1140 (1996). United States District Court For the Northern District of California 10 See Cal. Civ. Code §§ 45, 46; Rothman v. Jackson, The elements of a cause of action for intentional infliction 11 of emotional distress are (1) extreme and outrageous conduct 12 (2) intended to cause or done in reckless disregard for causing 13 (3) severe emotional distress and (4) actual and proximate 14 causation. 15 (1979). 16 that usually tolerated in a civilized community,” id., and the 17 distress so severe “that no reasonable [person] in a civilized 18 society should be expected to endure it.” 19 National Life Insurance Co., 10 Cal. App. 3d 376, 397 (1970). 20 Cervantez v. J.C. Penney Co., Inc., 24 Cal. 3d 579, 593 The conduct must be so extreme as to “exceed all bounds of Fletcher v. Western Defendants argue that they are immune from these torts 21 pursuant to California Government Code § 821.3, which provides that 22 a public employee is not liable for injury caused by the 23 instituting or prosecuting of a judicial or administrative 24 proceeding within the scope of employment, even if the employee 25 acts maliciously and without probable cause. 26 27 28 Defendants are correct that § 821.3 immunizes them from liability on these claims. Further, Kenneth Fonua presents no 15 1 argument or facts supporting his claims for defamation or 2 intentional infliction of emotional distress. 3 judgment is granted in favor of Defendants on the claims for 4 defamation and intentional infliction of emotional distress. 5 Therefore, summary CONCLUSION 6 Based on the foregoing, Defendants’ motion for summary 7 judgment is granted. Judgment in favor of Defendants shall be 8 entered separately. The parties shall bear their own costs of 9 suit. United States District Court For the Northern District of California 10 11 IT IS SO ORDERED. 12 13 Dated: 6/13/2011 CLAUDIA WILKEN United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16
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