755 F. Supp. 2d 1075 (E.D. Cal. 2010)

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Clark v. County of Tulare

United States District Court, Ninth Circuit, California, E.D. California

Nov 17, 2010

755 F. Supp. 2d 1075 (E.D. Cal. 2010)

Summary

holding documents produced inadmissible when produced in discovery that had foundation only merely established by attorney declaration

Summary of this case from LA Jolla Spa MD, Inc. v. Avidas Pharm., LLC

See 2 Summaries

Opinion

Opinion Denying Reconsideration Dec. 21, 2010. [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Andrew Armour Magwood, Magwood Law Firm, Fresno, CA, for Plaintiff.

Julia C. Langley, Visalia, CA, for Defendants.

ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION

LAWRENCE J. O'NEILL, District Judge.

By notice filed on September 27, 2010, Defendants County of Tulare (" County" ) and Bill Wittman (" Wittman" ), individually and in his official capacity as Tulare County Sheriff, move for summary judgment or in the alternative, summary adjudication against plaintiff Michael Clark. Plaintiff filed an opposition on October 18, 2010. Defendants filed a reply brief on October 27, 2010. The Court then asked for supplemental briefing on an evidentiary issue. Plaintiff filed his supplemental brief on November 1, 2010 and defendants filed their brief on November 12, 2010. Pursuant to Local Rule 230(g), this motion was submitted on the pleadings without oral argument, and the hearing was VACATED. Having considered the moving, opposition and reply papers, and the supplemental briefing, as well as the Court's file, the Court issues the following order.

FACTUAL BACKGROUND

This action alleges claims related to defamation arising from a police investigation of a shooting. Plaintiff is employed as a police officer in the City of Woodlake. As part of his duties he is the range master for the police training shooting range. In early 2009, the Tulare County Sheriff's Department investigated the shooting of Mr. Leland Perryman. At the time of Mr. Perryman's shooting, several Officers from the City of Woodlake were practice shooting their firearms at the range, about a mile from where Mr. Perryman was shot. Plaintiff was on duty as the range master at the time of the training but was not discharging a firearm when Mr. Perryman was shot. Plaintiff was responsible for the set up of targets and for tracking the officers who participated in the exercise or who shot at the range. Behind the range is a residential area, located within the County of Tulare. Leland Perryman, with his wife, was walking in an orchard behind his house when he was hit by a bullet.

The Tulare County Sheriff's Office (" TCSO" ) began an investigation of the shooting, as did the City of Woodlake Police Department. Defendant Bill Wittman is the Sheriff for the County of Tulare. The TCSO completed a lengthy investigative report about the incident, which contained some personal and confidential information about plaintiff. For instance, the report lists the plaintiff's name, employer, date of birth, age, race, sex, height, weight, hair and eye color, date of birth, home address, driver's license number, home and cellular telephone number. Plaintiff alleges the report also falsely attributed fault for Mr. Perryman's shooting on Plaintiff, claiming that some of the targets had been placed on the wings of the range in a place that was inherently unsafe. The Tulare County District Attorney determined that no one should be prosecuted for the accidental shooting.

After the report was submitted to the Tulare County District Attorney's Office, the Visalia Times Delta published the report on its website, including plaintiff's and other individuals' personal information. Plaintiff alleges that the TCSO leaked the report to various news agencies which published Plaintiff's private information. This leak of the report and the publication are the basis of plaintiff's suit. Plaintiff alleges that there is animosity between the Chief of Police for the City of Woodlake, Chief Zapalac, and the Sheriff of the County of Tulare, Bill Wittman, as they were opposing candidates in the 2010 County of Tulare Sheriff election.

Plaintiff alleges the following causes of action:

1. Count One: First Amendment, Sixth Amendment and Fourteenth Amendment;

2. Count Two— Intentional Infliction of Emotional Distress;

3. Count Three— Negligence Infliction of Emotional Distress;

4. Count Four— Defamation;

5. Count Five— Invasion of Privacy;

6. Count Six— Violations of Gov.Code § 6250;

7. Count Seven— Violations of Civ.Code § 1798;

8. Count Eight— Violations of Penal Code § 964.

ANALYSIS AND DISCUSSION

A. Summary Judgment/Adjudication Standards

1. Burdens of Proof on Summary Judgment

F.R.Civ.P. 56(b) permits a " party against whom relief is sought" to seek " summary judgment on all or part of the claim." Summary judgment/adjudication is appropriate when there exists no genuine issue as to any material fact and the moving party is entitled to judgment/adjudication as a matter of law. F.R.Civ.P. 56(c); Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987). The purpose of summary judgment/adjudication is to " pierce the pleadings and assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec., 475 U.S. at 586, n. 11, 106 S.Ct. 1348; International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir.1985).

On summary judgment/adjudication, a court must decide whether there is a " genuine issue as to any material fact," not weigh the evidence or determine the truth of contested matters. F.R.Civ.P. 56(c); Covey v. Hollydale Mobilehome Estates, 116 F.3d 830, 834 (9th Cir.1997); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

To carry its burden of production on summary judgment/adjudication, a 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." Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir.2000). " [T]o 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." Nissan Fire, 210 F.3d at 1102. " As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

" 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." Nissan Fire, 210 F.3d at 1102-1103; see Adickes, 398 U.S. at 160, 90 S.Ct. 1598. " If, however, a moving party carries its burden of production, the nonmoving party must produce evidence to support its claim or defense." Nissan Fire, 210 F.3d at 1103. " 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." Nissan Fire, 210 F.3d at 1103; see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (" Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make the showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." )

Defendant's main argument for challenging each of plaintiff's causes of action is that plaintiff lacks evidence. A defense motion for summary judgment may be based on the ground that plaintiff has no admissible evidence to support one or more essential elements of the claim. " It is not enough to move for summary judgment ... with a conclusory assertion that the (opposing party) has no evidence to prove his case." Celotex Corp. v. Catrett, 477 U.S. at 326, 106 S.Ct. at 2555 (J. White, concur.opn.) (parentheses added). " (T)he Celotex ‘ showing’ can be made by pointing out through argument— the absence of evidence to support plaintiff's claim." Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.2001) (en banc). Thus, in this Circuit, argument that the non-moving party lacks evidence is sufficient to carry the moving party's burden of proof.

2. Admissibility of Evidence

Defendants argue that the primary evidence plaintiff relies upon to oppose the motion is inadmissible hearsay. In plaintiff's opposition, he submitted the declaration of his attorney, Mr. Magwood, who testified as to two areas: (1) identifying potential witnesses and what the anticipated testimony from these witnesses will show, and (2) attaching and authenticating documentary evidence, such as email correspondence, letters, and memoranda produced by defendants in discovery. (Doc. 24-3, Magwood Decl.) Mr. Magwood's declaration states that his office conducted an investigation with witnesses. He then recounts what the witnesses are expected to testify to at trial. As to the documents, Mr. Magwood's declaration states that certain documents were produced by defendants, and " true and correct copies" are attached to his declaration.

Plaintiff also submitted his declaration in support of the motion. His declaration is not subject to the objections.

In his reply brief, plaintiff argues that there has been an intervening change of law because Rule 56 was amended effective December 1, 2010. Plaintiff's argument is addressed infra.

Defendants objected to the admissibility of this evidence in Mr. Magwood's declaration. As a result, the Court asked for supplemental briefing on the admissibility of the evidence submitted by plaintiff in his attorney's declaration.

(a) Form v. Substance of Declaration

In responding to defendants' objections, plaintiff argues that the seminal case of Celotex does not require plaintiff provide " admissible evidence" to defeat a motion. Plaintiff argues " the Celotex court noted that in opposing the motion, the non-moving plaintiff need not provide ‘ admissible evidence’ to defeat the motion." (Doc. 27, Supplemental Brief p. 2.)

Contrary to plaintiff's argument, the evidence on which the opponent relies must be admissible at trial. But the evidence need not be in an admissible form as presented in the opposition. A party may present testimony of its own witnesses by declarations. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Curnow v. Ridgecrest Police, 952 F.2d 321, 324 (9th Cir.1991), cert. denied, 506 U.S. 972, 113 S.Ct. 460, 121 L.Ed.2d 369 (1992). At the summary judgment stage, courts focus on admissibility of the evidence's content, not its form. Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. at 2553 (opposing party need not " produce evidence in a form that would be admissible at trial in order to avoid summary judgment" ). The Court in Celotex dealt with the form of the evidence submitted in opposition to a motion. The Court held that " the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment." 477 U.S. at 324, 106 S.Ct. 2548 (emphasis added). A party must show that the evidence could be rendered in an admissible form at trial. Celotex, 477 U.S. 317, 106 S.Ct. 2548, decision after remand, Catrett v. Johns-Manville Sales Corp., 826 F.2d 33, 37 (D.C.Cir.1987). Thus, the substance of the evidence must be admissible, but the form of the evidence does not.

In Celotex, plaintiff produced three documents which she claimed " demonstrate that there is a genuine material factual dispute" as to whether the decedent had ever been exposed to defendant's asbestos products. The three documents included a transcript of a deposition of the decedent, a letter from an official of one of the decedent's former employers whom plaintiff planned to call as a trial witness, and a letter from an insurance company to respondent's attorney, all tending to establish that the decedent had been exposed to defendant's asbestos products in Chicago during 1970-1971. Defendant, in turn, argued that the three documents were inadmissible hearsay and thus could not be considered in opposition to the summary judgment motion. The court held that the " form" of the evidence was not inadmissible hearsay. The court then remanded for determination of whether the substance of the evidence was admissible.

Defendants present evidence that they deposed witnesses in April 2010. Defendants present evidence that plaintiff never deposed any witnesses.

(b) The Substance of the Declaration is Inadmissible

An attorney may submit a declaration as evidence to a motion for summary judgment. However, the declaration must be made upon personal knowledge and sets forth fact that would admissible in evidence if the attorney were testifying at trial. See Fed.R.Civ.P. 56(e). A " hearsay assertion that would not be admissible if testified to at trial is not competent material for a Rule 56 affidavit." See, e.g., Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 160 (2nd Cir.1999). An affidavit shall " be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Fed.R.Civ.P. 56(e).

Here, Mr. Magwood's declaration states the " anticipated testimony" from numerous witnesses. He states what each witness is expected to testify to at trial.

This declaration is not made upon his personal knowledge. The substance of his declaration is classic hearsay. See Fed.R.Evid. 801(c). Mr. Magwood bases his knowledge upon an investigation conducted by his office and upon what he was told as to the anticipated testimony for each witness. An attorney is not competent to testify as to what another individual is expected to say under oath.

Plaintiff, nonetheless, argues that he is entitled to introduce an attorney's affidavit of anticipated testimony because the " form" is permissible. Plaintiff argues that in Celotex, after remand, the Court of Appeal held that the letter and the intention to call the author of the letter at trial were sufficient to create an issue of triable fact as to decedent's exposure. See Catrett v. Johns-Manville Sales Corporation, 826 F.2d 33 (D.C.Cir.1987), cert. denied, 484 U.S. 1066, 108 S.Ct. 1028, 98 L.Ed.2d 992 (1988). On remand, however, the issue was not an attorney declaration stating what a witness' anticipated testimony would be or authenticating documents for which the attorney did not have personal knowledge. On remand, the issue was the admissibility of documents to which, significantly, defendant did not object.

Plaintiff has not cited controlling authority in which an attorney's declaration stating what another witness will testify to and authenticating documents, has been held admissible. Declarations by attorneys are sufficient only if the facts stated are matters of which the attorney has knowledge, such as matters occurring during the course of the lawsuit, such as authenticity of a deposition transcript. Attorney affidavits made on information and belief do not satisfy the summary judgment procedural requirements. See e.g., Rountree v. Fairfax County School Bd., 933 F.2d 219, 223 (4th Cir.1991); Estremera v. United States, 442 F.3d 580, 584-585 (7th Cir.2006) (attorney's affidavit based upon interviews with witnesses and review of documents is " second-hand knowledge," insufficient to create dispute of material facts).

The Court finds that an attorney's declaration must be made upon personal knowledge. To hold otherwise would ignore the evidentiary rules of hearsay. Accepting plaintiff's argument, an attorney would be able to testify in any case as to what the attorney anticipated another person would say. This " form" of evidence was not considered by Celotex, and would negate Rule 56(e) which requires personal knowledge and competency to testify on the evidence.

" It is well settled that only admissible evidence may be considered by the trial court in ruling on a motion for summary judgment." Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181-82 (9th Cir.1988). Rule 56(c) of the Federal Rules of Civil Procedure provides that a reviewing court may consider " depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," to determine whether there is a genuine issue as to a material fact. Neither Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) nor Curnow v. Ridgecrest Police, 952 F.2d 321 (9th Cir.1991) eliminated the requirement that a foundation must be presented to demonstrate the authenticity of a proffered evidence.

Plaintiff argues that the exhibits to counsel's declaration, Items 1a-n, are documents produced by Defendants illustrating that none of the County deputies or personnel released the report, and that only three senior officers had access to the report. The only foundation laid for these documents, however, is through the attorney's declaration, that the documents were produced in discovery. The Ninth Circuit " has consistently held that documents which have not had a proper foundation laid to authenticate them cannot support a motion for summary judgment." Canada v. Blain's Helicopters, Inc., 831 F.2d 920, 925 (9th Cir.1987). Documentary evidence must be properly authenticated for use in a motion for summary judgment. Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 (9th Cir.1990). Here, the documentary evidence attached as exhibits, the email correspondence, letters and memoranda, are not properly authenticated. Accordingly, the documents are inadmissible. B. Count One— 42 U.S.C. § 1983

Additionally, plaintiff does not overcome hearsay of the documents.

Federal Rule Civil Procedure 56 was amended effective December 1, 2010. Although there is a slight language change and a change in the designation of subsections, the legal standard remains the same. See Fed.R.Civ.P. 56(a) (eff. Dec. 1, 2010) (" The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." ) The relevant text of the prior rule stated that summary judgment is appropriate " if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2) (effective prior to December 1, 2010). The minor change in language between the old Rule 56(c)(2) and the revised Rule 56(a) that occurred during the pendency of this motion, has no effect on the court's ruling here.

Plaintiff's first count against the County and Sheriff Wittman is for violation of his civil rights pursuant to 42 U.S.C. § 1983. " Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person acting under color of state law committed the conduct at issue, and (2) that the conduct deprived the claimant of some right, privilege, or immunity protected by the Constitution or laws of the United States." Leer v. Murphy, 844 F.2d 628, 632-633 (9th Cir.1988).

" Section 1983 ‘ is not itself a source of substantive rights,’ but merely provides ‘ a method for vindicating federal rights elsewhere conferred.’ " Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 811, 127 L.Ed.2d 114 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3, 99 S.Ct. 2689, 2694, n. 3, 61 L.Ed.2d 433 (1979)). Section 1983 and other federal civil rights statutes address liability " in favor of persons who are deprived of ‘ rights, privileges, or immunities secured’ to them by the Constitution." Carey v. Piphus, 435 U.S. 247, 253, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) (quoting Imbler v. Pachtman, 424 U.S. 409, 417, 96 S.Ct. 984, 996, 47 L.Ed.2d 128 (1976)). " The first inquiry in any § 1983 suit, therefore, is whether the plaintiff has been deprived of a right ‘ secured by the Constitution and laws.’ " Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). Stated differently, the first step in a section 1983 claim is to identify the specific constitutional right allegedly infringed. Albright, 510 U.S. at 271, 114 S.Ct. at 811.

1. Monell liability

The First Cause of Action is for violation of Civil Rights, 42 U.S.C. § 1983, for deprivation the First Amendment, Sixth Amendment and Fourteenth Amendment.

A local government unit may not be held liable for the acts of its employees under a respondeat superior theory. Monell v. Department of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Davis v. Mason County, 927 F.2d 1473,1480 (9th Cir.), cert. denied, 502 U.S. 899, 112 S.Ct. 275, 116 L.Ed.2d 227 (1991). " [A] municipality cannot be held liable solely because it employs a tortfeasor." Monell, 436 U.S. at 691, 98 S.Ct. at 2018. The local government unit " itself must cause the constitutional deprivation." Gillette v. Delmore, 979 F.2d 1342, 1346 (9h Cir.1992), cert. denied, 510 U.S. 932, 114 S.Ct. 345, 126 L.Ed.2d 310 (1993). Because liability of a local governmental unit must rest on its actions, not the actions of its employees, a plaintiff must go beyond the respondeat superior theory and demonstrate that the alleged constitutional violation was the product of a policy or custom of the local governmental unit. City of Canton, Ohio v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); Pembaur v. City of Cincinnati, 475 U.S. 469, 478-480, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). To maintain a section 1983 claim against a local government, a plaintiff must establish the requisite culpability (a " policy or custom" attributable to municipal policymakers) and the requisite causation (the policy or custom as the " moving force" behind the constitutional deprivation). Monell, 436 U.S. at 691-694, 98 S.Ct. 2018; Gable v. City of Chicago, 296 F.3d 531, 537 (7th Cir.2002).

" In addition, a local governmental entity may be liable if it has a ‘ policy of inaction and such inaction amounts to a failure to protect constitutional rights.’ " Lee v. City of Los Angeles, 250 F.3d 668, 681 (9th Cir.2001) (quoting Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir.1992)). A local government entity may be liable under section 1983 " if its deliberate policy caused the constitutional violation alleged." Blankenhorn v. City of Orange, 485 F.3d 463, 484 (9h Cir.2007).

2. Overview of Supervisor Liability

Plaintiff seeks to hold defendant Bill Wittman liable for § 1983 violations under a theory of supervisor liability.

A supervisory official may be liable under § 1983 only if he or she was personally involved in the constitutional deprivation, or if there was a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation. Redman v. County of San Diego, 942 F.2d 1435, 1446-47 (9th Cir.1991), cert. denied, 502 U.S. 1074, 112 S.Ct. 972, 117 L.Ed.2d 137 (1992); Hansen v. Black, 885 F.2d 642, 646 (9th Cir.1989) (same). Supervisors can be held liable for (a) their own culpable action or inaction in the training, supervision, or control of subordinates; (b) their acquiescence in the constitutional deprivation of which a complaint is made; or (3) for conduct that showed a reckless or callous indifference to the rights of others. Cunningham v. Gates, 229 F.3d 1271, 1292 (9th Cir.2000).

Under no circumstances, however, is there respondeat superior liability under § 1983; that is, there is no liability under § 1983 solely because one is responsible for the actions or omissions of another. Redman v. County of San Diego, 942 F.2d at 1446. A supervisor therefore generally " is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989).

Plaintiff seeks to hold Sheriff Wittman liable for constitutional violations related to the release of the report: " Defendant Wittman may be held liable as a supervisor if he aided or encouraged the leak of the report."

3. Summary of the Parties' Arguments

Defendants argue there is no evidence that plaintiff was deprived of a constitutional or federal statutory right arising from the leak of the report. Defendants argues that there is no evidence that supports a First Amendment claim. Defendants argue that there are no factual allegation in the complaint to support a cause of action based upon either the Sixth or Fourteenth Amendment.

Defendants also argue that the § 1983 claims fails because defendants were not plaintiff's employer. This argument is irrelevant to plaintiff's claims and therefore, the Court does not address it.

In plaintiff's opposition to the motion, plaintiff submitted the declaration of his attorney, Mr. Magwood, who testified as to two areas: (1) identifying potential witnesses and what the anticipated testimony from these witnesses will show, and (2) attaching and authenticating documentary evidence, such as email correspondence, letters, and memoranda produced by defendants in discovery.

Plaintiff argues that he seeks to hold Sheriff Wittman liable as a supervisor, because he aided and encouraged the leak of the report. (Doc. 24, Opposition p. 13.) Plaintiff argues that there is circumstantial evidence Wittman was involved. Plaintiff argues that the report had a tracking number to track a release through authorized channels. TCSO had restricted access to certain senior officers, and each was under command of Wittman. Plaintiff presents evidence that the report did not have a tracking number, which indicates that it did not come from an authorized channel. This suggests the report was printed outside authorized channels. Plaintiff argues that because the report was so restricted, only a senior official could have released the report. The released report had already been returned to TCSO because it had the DA's cover sheet addressed to TCSO on top of it. Defendant Wittman was one of only a few people who had access to the report. Defendant Wittman had a political rivalry with Chief Zapalac, and the section regarding Chief Zapalac's perceived lack of cooperation was highlighted in the released report.

4. Alleged First Amendment

Plaintiff argues that the First Amendment protects his right to refuse to speak, citing West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). Plaintiff argues that TCSO attempted to coerce plaintiff to speak with them during the investigation and he refused.

In order to demonstrate a First Amendment violation, a plaintiff must provide evidence showing that " by his actions [the defendant] deterred or chilled [the plaintiff's] political speech and such deterrence was a substantial or motivating factor in [the defendant's] conduct." Mendocino Environmental Center v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir.1999). Intent to inhibit speech " is an element of the claim." Id. at 1301. The goal is to prevent, or redress, actions by a government official that chill the exercise of protected First Amendment rights. Coszalter v. City of Salem, 320 F.3d 968, 974-75 (9th Cir.2003).

The First Amendment also confers a " right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences." Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). The First Amendment prohibits the government from compelling citizens to express beliefs that they do not hold. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (preventing a state government from forcing children to salute the American flag when the children's religious beliefs forbade such behavior). " [T]he right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all." Wooley v. Maynard, 430 U.S. 705, 714, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977) (forbidding a state government from compelling motorists to display the message " live free or die" on their license plates).

Here, the facts do not suggest that plaintiff was coerced into expressing a belief he did not hold or that he was " chilled" in his political speech. The case cited by plaintiff, in West Virginia State Bd. of Educ. v. Barnette, is not applicable because there is no evidence plaintiff was coerced or forced into expressing any belief. The facts of this case do not fall within the parameters of the First Amendment protections stated in West Virginia State Bd. of Educ. v. Barnette. Plaintiff claims is a " right to refuse to speak," but the First Amendment protects against coercing an expression of a belief or political speech, not the " right to refuse to speak." As this " right to refuse to speak" is the only right plaintiff asserts under the First Amendment, the motion for summary adjudication on the First Amendment will be granted.

5. Fourteenth Amendment

Plaintiff argues that the protections of the Fourteenth Amendment were violated. He argues he had the right to refuse to cooperate with TCSO without fear of reprisal, citing Garrity v. State of N.J., 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). Plaintiff argues he had the right not to cooperate with the investigation and the right to an attorney.

In Garrity, police officers were investigated for allegedly " fixing" traffic tickets. Id. at 494, 87 S.Ct. 616. Before being questioned, each officer was told that anything he said could be used against him and that he had the right to refuse to answer any question, but if he refused to answer he would be fired. Id. The answers to the questions subsequently were used to convict a number of police officers. Id. at 495, 87 S.Ct. 616. The Supreme Court held that the Fourteenth Amendment was violated:

[t]he choice given petitioners was either to forfeit their jobs or to incriminate themselves. The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent. That practice, like interrogation practices we reviewed in Miranda v. State of Arizona, 384 U.S. 436, 464-65, 86 S.Ct. 1602, 1623, 16 L.Ed.2d 694 [ (1966) ], is likely to exert such pressure upon an individual as to disable him from making a free and rational choice.

Id. at 497, 87 S.Ct. 616. As a remedy, the Court held the state cannot use the incriminatory statement of an employee secured under threat of job loss in a subsequent criminal proceeding. The protection against coerced statements extends to public employees who must choose either to incriminate themselves or to forfeit their jobs during an administrative hearing.

Plaintiff does not allege or present evidence comparable to the facts in Garrity. He does not introduce evidence that he was threatened with any kind of detriment for failure to cooperate. The evidence he presents is that he was told not to cooperate by his superiors, he so informed TCSO that he would not cooperate, but no further evidence of threats or detriment occurred:

44. TCSO detectives claimed they were seeking further answers about the shooting of Mr. Perryman.

45. I advised that I was not to be giving any further statements unless it was with the cooperation of my department and the assistance of counsel because of the potential civil action by Mr. Perryman.

46. I advised that I wanted to cooperate, but wanted to make sure everything was on the " up and up."

47. I also told the detectives that I could not make these decisions but that they needed to be worked out between my command and TCSO's command.

48. I intended this information to be used to resolve any coordination issues between TCSO and my department.

(Doc. 24-1, Clark Decl. ¶ 44-48.)

Plaintiff has not introduced evidence that he was threatened by the TCSO or his own office to cooperate. Plaintiff does not introduce evidence he was under oath or faced a choice of cooperating or losing his job.

Plaintiff argues that his due process rights were violation because:

" Should he stray toward cooperation with TCSO, he risks being faced with insubordination charges from his own department, as well as criminal charges instigated by TCSO. On the other hand, if stray toward refusal of cooperation, he risks humiliation at the hands of Defendants." (Doc. 24, Opposition p. 17.)

Plaintiff's argument, however, is pure speculation on potential violation of right. The evidence is lacking that plaintiff faced insubordination charges in his department, or that he faced criminal charges for failing to cooperate or any kind of detriment. He offers no such evidence. In short, plaintiff has failed to introduce evidence of a violation of his due process rights from the investigation.

Plaintiff also argues that his rights in being given Miranda warnings were violated. In California Attorneys for Criminal Justice v. Butts, 195 F.3d 1039 (9th Cir.1999), cert. denied, 530 U.S. 1261, 120 S.Ct. 2717, 147 L.Ed.2d 983 (2000), the court ruled that the plaintiffs stated a § 1983 Fifth Amendment cause of action when they claimed that they were the victims of a policy of the defendant police to defy the requirements of Miranda. In Butts, plaintiffs sued the City of Los Angeles and individual officers for an alleged policy, set forth in certain training programs and materials, which authorized continued interrogation " outside Miranda" despite the suspects' invocation of their right to remain silent and their requests for an attorney. The policy was based on the position that the coerced statements could be used at impeachment at trial. The plaintiffs alleged that the defendants used coercion and intimidation to obtain incriminating statements. In Butts, the court denied qualified immunity to officers who had intentionally violated the suspects' Miranda rights, in accordance with their training and departmental policy. The court stated, " Officers who intentionally violate the rights protected by Miranda must expect to have to defend themselves in civil actions." Butts, 195 F.3d at 1050.

Here, unlike Butts, plaintiff has not introduced any policy, custom or practice by the County for violation of Miranda warnings. In Butts, the police department had training materials which authorized violation of Miranda. Here, plaintiff does not introduce evidence of any custom, policy or practice established by the County of violating Miranda rights.

Further, the officers who violated the Miranda warnings in Butts were parties to the § 1983, whereas, here, the officers who were plaintiff's interrogators are not defendants. Here, the sole individual defendant is Sheriff Wittman. Plaintiff has not introduced evidence that Sheriff Wittman was an interrogator or should be responsible under supervisor liability. Thus, plaintiff has failed to introduce a policy, custom or practice by the County which violated his rights, and plaintiff has failed to introduce evidence that Wittman was responsible such that Wittman could be personally liable. Plaintiff has failed to raise an issue of fact that his Fifth and Fourteenth amendment rights were violated in the interrogation.

6. Sixth Amendment

Plaintiff argues that his Sixth Amendment right to counsel had been violated.

The Sixth Amendment provides: " In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence." U.S.C. Const. Amend. VI.

The deliberate denial of counsel, absent an intelligent and voluntary waiver, is a deprivation of rights guaranteed by the Sixth and Fourteenth Amendments. See Robichaud v. Ronan, 351 F.2d 533 (9th Cir.1965). But, actual injury is required to state a claim. See generally, Weatherford v. Bursey, 429 U.S. 545, 554, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977) (rejecting a per se rule in a criminal case of a violation of the Sixth Amendment).

Here, as in the Miranda warnings violation, plaintiff has not introduced any policy, custom or practice by the County for the alleged violation or that the alleged violation causes harm. Plaintiff has failed to introduce evidence that defendant Wittman engaged in any wrongdoing.

7. Immunity

In their reply papers, defendants for the first time raise the issue of " immunity." (Doc. 25, Reply p. 5-9.)

Reply papers should be limited to matters raised in the opposition papers. It is improper for the moving party to " shift gears" and introduce new facts or different legal arguments in the reply brief than presented in the moving papers. See Lujan v. National Wildlife Federation, 497 U.S. 871, 894-895, 110 S.Ct. 3177, 3192, 111 L.Ed.2d 695 (1990) (court has discretion to disregard late-filed factual matters); Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir.2007) (" district court need not consider arguments raised for the first time in a reply brief" ); see also Ojo v. Farmers Group, Inc., 565 F.3d 1175, 1186, fn. 12 (9th Cir.2009).

Here, defendants have raised a new and different issue which was not briefed in their moving papers nor raised in the opposition. Accordingly, the Court will not consider the issue of immunity as it has been raised improperly in the reply papers.

C. Count Two— Intentional Infliction of Emotional Distress

Defendants argue that there is no evidence of extreme and outrageous conduct by Sheriff Wittman, any member of the Sheriff's Department or by an agent of the county directed to plaintiff. (Doc. 22, P & a pp. 10.)

Plaintiff argues that there are facts to support a claim for intentional infliction. Plaintiff argues that his private information as released to the news media and was republished elsewhere. Plaintiff argues this was " outrageous" conduct because defendants abused a position of power to damage the plaintiff's interests. (Doc. 24, Opposition 17-18.) Defendants released the information knowing plaintiff was police officer who would be concerned about his privacy.

The elements of a prima facie case of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant; (2) intent to cause, or reckless disregard of the probability of causing, emotional distress; (3) plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendants' outrageous conduct. Cervantez v. J.C. Penney Co., 24 Cal.3d 579, 583, 156 Cal.Rptr. 198, 595 P.2d 975 (1979), superseded by statute as stated in Melendez v. City of Los Angeles, 63 Cal.App.4th 1, 73 Cal.Rptr.2d 469 (1998). To satisfy the element of " extreme and outrageous conduct," plaintiff must allege facts showing that defendants' conduct was " so extreme as to exceed all bounds of that usually tolerated in a civilized community." Ricard v. Pacific Indemnity Co., 132 Cal.App.3d 886, 895, 183 Cal.Rptr. 502 (1982). Whether a defendant's conduct can reasonably be found to be outrageous is a question of law that must initially be determined by the court; if reasonable persons may differ, it is for the jury to determine whether the conduct was, in fact, outrageous. Berkley v. Dowds, 152 Cal.App.4th 518, 534, 61 Cal.Rptr.3d 304, 317 (2007). While the outrageousness of a defendant's conduct normally presents an issue of fact to be determined by the trier of fact, the court may determine in the first instance whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. Trerice v. Blue Cross of California, 209 Cal.App.3d 878, 883, 257 Cal.Rptr. 338, 340 (1989) (no outrageous conduct on allegations that the employer had presented the employee with a termination package, but later withdrew it and kept her as an employee.) In Ricard v. Pacific Indemnity Co., plaintiff alleged that he suffered severe emotional distress based on defendants' alleged refusal to timely pay a claim for insurance benefits. The trial court granted a demurrer to the cause of action because of the failure to allege " extreme and outrageous conduct." The appellate court affirmed that a court may decide, as a matter of law, whether a defendant's conduct, as pleaded, could be deemed " outrageous" within that definition. Ricard, 132 Cal.App.3d at 895, 183 Cal.Rptr. 502.

Plaintiff argues that the defendants conduct was extreme and outrageous because they " abused a relation or position of power over him." Plaintiff argues that defendants caused the release, or released, plaintiff's personal information. (Doc. 24, Opposition p. 18.)

" Behavior may be considered " outrageous" if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff's interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress...." Molko v. Holy Spirit Assn., 46 Cal.3d 1092, 252 Cal.Rptr. 122, 762 P.2d 46 (1988).

The abuse of a position of power has been applied in limited situations. See Restatement Second of Torts (1965) § 46, pp. 71-80. Comment e. to § 46 provides, " The extreme and outrageous character of the conduct may arise from an abuse by the actor of a position, or a relation with the other, which gives him actual or apparent authority over the other, or power to affect his interests." The few cases which have held a person " holds a position of authority" over another, such that a claims for IIED may exist is for an employment relationship, ( Agarwal v. Johnson, 25 Cal.3d 932, 946, 160 Cal.Rptr. 141, 603 P.2d 58 (1979) (employer used racial epithets); Lagies v. Copley, 110 Cal.App.3d 958, 168 Cal.Rptr. 368 (1980) (reporter and newspaper employment relationship), disapproved on diff. grounds, Brown v. Kelly Broadcasting Co., 48 Cal.3d 711, 738, 257 Cal.Rptr. 708, 771 P.2d 406 (1989)); between a church and its member, (Molko v. Holy Spirit Assn., 46 Cal.3d 1092, 252 Cal.Rptr. 122, 762 P.2d 46); and, between a landlord who wrongfully evicts a tenant. Emden v. Vitz, 88 Cal.App.2d 313, 198 P.2d 696 (1948); Kiseskey v. Carpenters' Trust, 144 Cal.App.3d 222, 229, 192 Cal.Rptr. 492, 496 (1983) (profanity and threat to life and safety of family supports outrageous conduct finding). A special relationship may exist between a debt collector and a debtor. Hartung v. J.D. Byrider, Inc., 2009 WL 1876690, *9 (E.D.Cal.2009) (Defendant engaged in extreme and outrageous conduct including abusing his position of authority as a debt collector to harass, lie and intimidate Plaintiff).

Plaintiff has not cited any authority that a special relationship exists between a witness in a police investigation and the police department. Indeed, for tort purposes, police officers are held not to be a special relationship with witnesses. Zelig v. County of Los Angeles, 27 Cal.4th 1112, 1129, 119 Cal.Rptr.2d 709, 45 P.3d 1171 (2002) (county was not liable for failing to protect a litigant from a violent attack by her husband in a courthouse because there was no such special relationship). Disclosing private information of a witness may violate certain other statutory protections, see infra, but such disclosure has not been held to be " extreme and outrageous," abusing a special relationship, to support a common law tort claim. Accordingly, summary adjudication is appropriate for this cause of action.

D. Count Three— Negligent Infliction of Emotional Distress

Defendants argue that there is no permissible basis for a negligent infliction of emotional distress claim because there are no facts to support that defendants owed a duty of care in " pre-existing relationship."

Plaintiff argues that this cause of action arises from a breach of duty from a preexisting relationship, citing Burgess v. Superior Court, 2 Cal.4th 1064, 1076, 9 Cal.Rptr.2d 615, 831 P.2d 1197 (1992). Plaintiff argues that the duty is a law enforcement agency to a witness in the investigation. " Negligent infliction emotional distress is not an independent tort in California, but the tort of negligence with the traditional elements of duty, breach of duty, causation, and damages." Burgess v. Superior Court, 2 Cal.4th 1064, 1072, 9 Cal.Rptr.2d 615, 831 P.2d 1197 (1992). The California Supreme Court has allowed recovery for negligent infliction of emotional distress for " serious emotional distress ... [caused by] a breach of duty owed to the plaintiff that is ‘ assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.’ " Burgess v. Superior Court, 2 Cal.4th 1064, 1073, 9 Cal.Rptr.2d 615, 831 P.2d 1197 (1992). There are several types of relationships for which the California courts have found a special duty of care arises, none that the court was able to find apply to a simple witness-police relationship. See, e.g., Burgess v. Superior Court, 2 Cal.4th 1064, 9 Cal.Rptr.2d 615, 831 P.2d 1197 (1992) (physician-patient relationship); Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., 48 Cal.3d 583, 592, 257 Cal.Rptr. 98, 770 P.2d 278 (1989) (psychotherapist-patient relationship); and Christensen v. Superior Court, 54 Cal.3d 868, 890, 2 Cal.Rptr.2d 79, 820 P.2d 181 (1991) (relationship between mortuary and close relatives of decedent for whose benefit the mortuary was to provide funeral services).

Thus, as there is no authority that a special relationship exists between a witness to an investigation and the police department, a duty of care does not arise. Accordingly, the motion will be granted for the negligent infliction of emotional distress.

E. Count Four— Defamation

Defendants argue that there is no issue of fact on the element of " falsity" of the statement alleged to be defamatory. Defendants argue the " falsity" is the placement of the shooting targets in an unsafe location on the range. This is not " false," and is a statement of opinion by Sheriff investigators. The placement of the targets in an " unsafe location" is a statement of opinion and not an assertion of false facts. Defendants also argue that Plaintiff is a public figure.

Defendants do not argue in their moving papers that the statements were privileged under Cal.Civ.Code § 47(c) or any other privilege.

A declaration, rather than a deposition, from a witness who is competent to testify is an acceptable form of evidence to oppose a motion for summary judgment.

Plaintiff argues that he is not a " public figure." ‘ He was a witness in a police investigation, which does not convert him to a public figure. Plaintiff argues that the report, which was published, contained false information. Plaintiff argues:

" In one section of the report a very detailed diagram of the range is reproduced with the placement of targets noted on the diagram. The location of the targets on the diagram is in direct line with where the victim was found and it is reported that is where Plaintiff said the targets had been placed. (AMF-52, 54.) Unfortunately, the TCSO positioned the targets improperly by several feet. (AMF-54, 55.) Only TCSO had access to the range during the investigation. A difference of a few feet makes all the difference in whether or not the location of the targets was appropriate, especially at a distance of half a mile. If the targets were located at location A, but the TCSO report places them at location B, an arguably unsafe position, that implicates Plaintiff's job functions as range master, and are thereby defamatory." (Doc. 24, Opposition p. 19.)

The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. Cal.Civ.Code §§ 45, 46; Taus v. Loftus, 40 Cal.4th 683, 720, 54 Cal.Rptr.3d 775, 151 P.3d 1185 (2007).

An essential element of defamation is that the alleged false statement be one of fact rather than opinion. Gregory v. McDonnell Douglas Corp., 17 Cal.3d 596, 600, 131 Cal.Rptr. 641, 552 P.2d 425 (1976); Campanelli v. Regents of University of California, 44 Cal.App.4th 572, 578, 51 Cal.Rptr.2d 891 (1996). In drawing the distinction between opinion and fact, the courts look to totality of the circumstances, putting ourselves in the place of an " average reader" and deciding the " natural and probable effect" of the statement. Hofmann Co. v. E.I. Du Pont de Nemours & Co., 202 Cal.App.3d 390, 398, 248 Cal.Rptr. 384 (1988). The words themselves must be examined to see if they have a defamatory meaning, or if the gist of the statements has a defamatory meaning. Id. In deciding whether a statement is defamatory, one must consider that which is explicitly stated as well as that which is insinuated or implied. Forsher v. Bugliosi, 26 Cal.3d 792, 803, 163 Cal.Rptr. 628, 608 P.2d 716 (1980). A court examines the totality of the circumstances, beginning with the language of the statement itself and then considering the context in which the statement was made. Baker v. Los Angeles Herald Examiner, 42 Cal.3d 254, 260-261, 228 Cal.Rptr. 206, 721 P.2d 87 (1986), cert. denied, 479 U.S. 1032, 107 S.Ct. 880, 93 L.Ed.2d 834 (1987).

Considering the totality of the circumstances, there is a issue of fact as to whether the report contained a defamatory statement. The evidence shows that the investigation concluded that the range target had been placed in an " unsafe" location. The term " unsafe" may have contours of opinion, but gauged under police standards, such as POST, what is " unsafe" may not be a matter of opinion. Considering that an individual was shot as a result of what the report states is " unsafe," there is an issue of fact whether the statement has a defamatory meaning. Here, all reasonable inferences from the evidence must be viewed in the light most favorable to the nonmoving party. Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 456, 112 S.Ct. 2072, 2077, 119 L.Ed.2d 265 (1992). Accordingly, plaintiff as raised an issue of fact as to the existence of a defamatory statement.

F. Count Five— Invasion of Privacy and False Light Publication

Plaintiff claims two types of invasion of privacy: public disclosure of private facts and false light publication.

Defendants argue that the invasion of privacy (public disclosure of private facts) does not have evidence " connecting the publication to the Defendants." (Doc. 22, Motion p. 14.) Defendants acknowledge that although plaintiff's personal information was posted on the internet, that public disclosure was not committed by defendants. Defendants also argue that the false light publication invasion of privacy is not actionable because there was no " false light." The information posted on the internet did not place plaintiff in a false light.

Plaintiff argues that the report went from the County to a news agency and that publication is sufficient to support invasion of privacy.

1. Public Disclosure of Private Information

One of plaintiff's claims for invasion of privacy is based upon public disclosure of private facts. The elements of a claim of invasion of privacy based on the public disclosure of private facts are as follows: (1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to the reasonable person and (4) which is not of legitimate public concern. Catsouras v. Department of California Highway Patrol, 181 Cal.App.4th 856, 868, 104 Cal.Rptr.3d 352, 361 (2010).

Four distinct kinds of activities have been found to violate this privacy protection and give rise to tort liability. These activities are: (1) intrusion into private matters; (2) public disclosure of private facts; (3) publicity placing a person in a false light; and (4) misappropriation of a person's name or likeness. Moreno v. Hanford Sentinel, Inc., 172 Cal.App.4th 1125, 1129, 91 Cal.Rptr.3d 858, 862 (2009).

The only evidence that plaintiff produced to support that the disclosure was committed by these defendants is the declaration of Mr. Magwood. He states he conducted an investigation and talked with witnesses who will testify, " Mr. David Castellon, reporter for the Visalia Times-Delta, who is expected to testify that he received the report from a ‘ Senior County Official.’ " (Doc. 24, Magwood decl., ¶ 31.) Plaintiff's sole evidence that the disclosure came from defendants is Mr. Magwood's hearsay evidence that a news reporter will say that he obtained a copy of the report from a " senior county official."

Here, the attorney's affidavit is not made upon personal knowledge. He bases his knowledge upon an investigation and purported anticipated testimony. An attorney is not competent to testify as to what another individual is expected to say under oath. There is no deposition testimony or declaration from the news reporter that the disclosure of the report to the news agency was from a " senior county official." As stated above, the attorney's affidavit shall " be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Fed.R.Civ.P. 56(e). As this court has found that a declaration by an attorney is sufficient only if the facts stated are matters of which the attorney has personal knowledge, and there are no facts which support that Mr. Magwood has personal knowledge, this evidence is inadmissible. Accordingly, plaintiff has failed to carry his burden to raise an issue of fact that the County is responsible for the disclosure.

2. False Light

Defendant argues that the false light invasion of privacy claim should fail because there is no evidence that (1) any facts made public were false, (2) defendants place plaintiff in a false light, or (3) defendant acted with malice. (Doc. 22, Moving papers p. 15.)

Plaintiff does not specifically address the false light argument in his Opposition. (Doc. 24, Opposition p. 21-22.)

To prevail on a false light invasion of privacy claim, a plaintiff must show that the defendant made statements placing her in a false light that would be highly offensive to a reasonable person. Fellows v. National Enquirer, Inc., 42 Cal.3d 234, 238-239, 228 Cal.Rptr. 215, 721 P.2d 97 (1986); see also M.G. v. Time Warner, Inc., 89 Cal.App.4th 623, 636, 107 Cal.Rptr.2d 504 (2001) (a false light invasion of privacy claim " exposes a person to hatred, contempt, ridicule, or obloquy and assumes the audience will recognize it as such" ).

Here, plaintiff has not introduced evidence from which a reasonable trier of fact could conclude that defendants disclosed the information in the report. Thus, there is no evidence which shows defendants made a fact public which placed plaintiff in a false light. While there is evidence that the report targets were place in an unsafe position, implying plaintiff was conducting target practice in an improper manner, and impinging his professional reputation, there is no admissible evidence that defendants disclosed the report.

G. Count Six— Violation of Gov.Code § 6250

The Sixth Cause of Action is for violation of the Public Records Act, Gov.Code § 6250 et seq.

Defendants argue that under the Public Records Act, all public documents are subject to disclosure unless the Sheriff's Department asserts a privilege not to disclose an investigative report. Defendant argues that the information contained within investigative reports concerning witnesses is not confidential, and there is no evidence that this report was prohibited from disclosure.

Plaintiff argues that the disclosure of Plaintiff's private information is protected under law. Disclosure is prohibited by Penal Code §§ 964, 832.5, and 832.7. Plaintiff argues that the County refused to disclose the report to others, itself claiming exemption from the Public Records Act, yet the report ended up on the internet.

The California Public Records Act (" CPRA," Gov.Code § 6250 et seq.) permits anyone to obtain, subject to certain exemptions, " any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics." Gov.Code § 6252(e). CPRA specifically exempts from disclosure matters that would constitute an " unwarranted invasion of personal privacy" and matters privileged under federal or state law. Gov.Code § 6254(c), (k); Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group) § 8:1805.18 et seq. Police officer personnel records fall within this exemption and therefore are not subject to disclosure under the CPRA. They are protected from disclosure in civil or criminal proceedings by Pen.Code § 832.7. Penal Code § 832.7 provides that information contained in a peace officer's or custodial officer's personnel file is protected from discovery or disclosure. The protection extends to any information of a private nature, including information concerning the officer personally, such as home address, marital status, education and employment history. See Pen.Code § 832.7(a).

The motion challenges whether the information which was disclosed was privileged such that disclosure violated the police officer's confidential information. Plaintiff presents evidence that the disclosure included private personal information which is protected under statutory provision of the Penal Code. Thus, plaintiff has raised an issue of fact that whether the CPRA has been violated. Defendant also argues that the motion should be granted because the disclosure was by the news media, not by defendants. Here, as in the prior causes of action, plaintiff has not introduced evidence from which a reasonable trier of fact could conclude that defendants disclosed the information in the report. Accordingly, there is no evidence from which a reasonable trier of fact could conclude that the information disclosed came from the investigators of the incident.

H. Count Seven— Violation of Civ.Code § 1798 (Information Practices Act)

Defendants argue that this statute does not apply to a local agency, and only applies to state agencies.

Plaintiff argues that Section 1798.82 permits the Act to apply to " persons." The statute applies, notwithstanding that it is generally applicable to state agencies, because it also applies to any " person."

The Information Practices Act is limited to " state" agencies. The Information Practices Act defines the term " agency" as " every state office, officer, department, division, bureau, board, commission, or other state agency" and does not include any " local agency." Cal.Civ.Code § 1798.3(b). Therefore, the County cannot be liable under this section.

Civ.Code § 1798.82 requires certain persons to provide notification if security systems are breached:

" Any person or business that maintains computerized data that includes personal information that the person or business does not own shall notify the owner or licensee of the information of any breach of the security of the data immediately following discovery, if the personal information was, or is reasonably believed to have been, acquired by an unauthorized person." Cal.Civ.Code § 1798.82(b).

Plaintiff argues that Sheriff Wittman is a person who maintains the computerized data, in his official capacity as Sheriff-Coroner. Plaintiff argues that Sheriff Wittman had an obligation to report to plaintiff the release of plaintiff's private information.

Plaintiff has failed to present evidence that Sheriff Wittman, in his official capacity, maintains the computerized system. Plaintiff has not presented any authority for the proposition that the Sheriff is responsible for all information maintained on County computerized systems. Plaintiff has not presented evidence of how the information is maintained, who inputs the information, the Sheriff's job description or in any manner " linking" Sheriff Wittman to " maintaining" the computer system. Plaintiff merely makes a broad argument that Sheriff Wittman in his official capacity " maintains" all computerized information. Plaintiff did not cite, and the Court's research did not locate any state authority interpreting this provision. Accord Parke v. Cardsystems Solutions, Inc., 2006 WL 2917604, *4 (N.D.Cal.2006) (There appears to be no reported appellate decisions interpreting these code provisions.) Therefore, as there is no evidence from which a reasonable jury could conclude that Sheriff Wittman maintains the computer systems, he is not liable under this code section.

I. Count Eight— Violation of Penal Code § 964

Defendants argue that Penal Code § 964 is inapplicable because it requires a district attorney and the Court to establish a procedure to protect confidential information about a witness if the report is submitted to the Court. This statute does not apply to the relevant facts. Plaintiff argues that he was a witness in a police investigation and that " it would make no sense for the report to only be confidential when it is submitted to the court, but not prior to trial." (Doc. 24, Opposition p. 24.)

The duty to safeguard confidential informants' identities is established by Penal Code § 964(a). Pen.Code § 964 requires the district attorney and the courts in each county to establish a mutually agreeable procedure to protect confidential personal information regarding any witness or victim contained in a police report, arrest report, or investigative report that is submitted to a court by a prosecutor in support of an accusatory pleading or in support of a search or arrest warrant. The statute requires a confidential procedure for a " report[ ] submitted to a court."

This statute is inapplicable to the current case. The investigative report was not submitted to Court. There is no evidence that disclosure of the report was filed with the court. There is no evidence that procedures developed for confidential submission to Court were violated. Thus, the facts of this case do not fall within the mandate of Penal Code § 964.

Plaintiff argues that an issue of fact arises because it is a disputed whether the statute only applies to reports submitted to a court. (Doc. 24, Opposition p. 23-24.)

To the contrary, there is no factual dispute. Statutory interpretation is a question of law. Day v. Apoliona, 616 F.3d 918, 924 (9th Cir.2010); Ramadan v. Gonzales, 479 F.3d 646 (9th Cir.2007) (per curiam) (" questions of law" include " not only ‘ pure’ issues of statutory interpretation, but also application of law to undisputed facts, sometimes referred to as mixed questions of law and fact." ). The cause of action will be dismissed.

CONCLUSION

For the foregoing reasons, the Court partially GRANTS and partially DENIES the motion for summary judgment, or in the alternative summary adjudication, as follows:

1. GRANTS the motion as to County One for violation of 42 U.S.C. § 1983;

2. GRANTS the motion as to Count Two for Intentional Infliction of Emotional Distress;

3. GRANTS the motion as to Count Three for Negligent Infliction of Emotional Distress;

4. DENIES the motion as to Count Four for Defamation;

5. GRANTS the motion as to Count Five for Invasion of Privacy and False Light Publication;

6. GRANTS the motion as to Count Six for Violation of Gov.Code § 6250;

7. GRANTS the motion as to Count Seven for Violation of Civ.Code § 1798 (Information Practices Act);

8. GRANTS the motion as to Count Eight for Violation of Penal Code § 964.

IT IS SO ORDERED.

ORDER ON PLAINTIFF'S REQUEST FOR RELIEF FROM SUMMARY ADJUDICATION

By notice filed on November 24, 2010, Plaintiff Michael Clark moves for reconsideration or relief from this Court's grant of the summary adjudication on seven of his eight claims. Defendants filed an opposition on November 30, 2010. Plaintiff filed a reply brief on December 17, 2010. Pursuant to Local Rule 230(g), this motion was submitted on the pleadings without oral argument, and the hearing was VACATED. Having considered the moving, opposition and reply papers, as well as the Court's file, the Court issues the following order.

FACTUAL BACKGROUND

A. Factual Background

This action alleges claims related to defamation arising from a police investigation of a shooting. Plaintiff is employed as a police officer in the City of Woodlake. As part of his duties, he is the range master for the police training shooting range. In early 2009, the Tulare County Sheriff's Department investigated the shooting of Mr. Leland Perryman. At the time of Mr. Perryman's shooting, several Officers from the City of Woodlake were practice shooting their firearms at the range, about a mile from where Mr. Perryman was shot. Plaintiff was on duty as the range master at the time of the training but was not discharging a firearm when Mr. Perryman was shot. Plaintiff was responsible for the set up of targets and for tracking the officers who participated in the exercise or who shot at the range. Behind the range is a residential area, located within the County of Tulare. Leland Perryman, with his wife, was walking in an orchard behind his house when he was hit by a bullet.

B. Procedural History

This case was filed on December 3, 2009. Plaintiff alleges the following causes of action:

1. Count One: First Amendment, Sixth Amendment and Fourteenth Amendment;

2. Count Two— Intentional Infliction of Emotional Distress;

3. Count Three— Negligence Infliction of Emotional Distress;

4. Count Four— Defamation;

5. Count Five— Invasion of Privacy;

6. Count Six— Violations of Gov.Code § 6250;

7. Count Seven— Violations of Civ.Code § 1798;

8. Count Eight— Violations of Penal Code § 964.

A Scheduling Order was issued on March 4, 2010 setting discovery cut-off of September 13, 2010 and dispositive motion filing cut-off of December 13, 2010. Trial is set for March 28, 2011. After discovery closed, defendants filed a motion for summary judgment, or in the alternative motion for summary adjudication, on September 27, 2010. This Court granted the motion in part and denied the motion in part. The Court granted the motion on all claims except Count Four for Defamation. Thereafter, plaintiff brought this motion for reconsideration of the Court's order.

ANALYSIS AND DISCUSSION

Plaintiff's motion for relief is styled under Rule 60 as a motion for reconsideration of the Court's Summary Adjudication Order.

A. Grounds for a Rule 60 Motion

Rule 60(b) permits relief from " final" judgments, orders or proceedings based upon certain grounds. Fed.R.Civ.P. 60(b). Rule 60 provides for relief from a judgment based on the following grounds:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.

Plaintiff's arguments appear to fall into either or " mistake, inadvertence, surprise, or excusable neglect" or " any other reason that justifies relief," including the " court's clear error." Plaintiff has not present arguments on any other Rule 60 grounds.¹

The Court has discretion to reconsider and vacate a prior order. Barber v. Hawaii, 42 F.3d 1185, 1198 (9th Cir.1994); United States v. Nutri-cology, Inc., 982 F.2d 394, 396 (9th Cir.1992); see also, Fed.R.Civ.P. 59(e). Motions to reconsider are committed to the discretion of the trial court. Combs v. Nick Garin Trucking, 825 F.2d 437, 441 (D.C.Cir.1987); Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir.1983) (en banc). A motion for reconsideration is an " extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources." Kona Enterprises v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir.2000). Both parties acknowledge that Rule 60(b) relief is an extraordinary remedy and is granted only in exceptional circumstances. (See Doc. 31, Moving papers p. 5-6.) See also, Kern-Tulare Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D.Cal.1986), affirmed in part and reversed in part on other grounds, 828 F.2d 514 (9th Cir.1987).

Motions for reconsideration are not the place for parties to make new arguments not raised in their original briefs. Northwest Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925-6 (9th Cir.1988). Nor is reconsideration to be used to ask the court to rethink what it has already thought. United States v. Rezzonico, 32 F.Supp.2d 1112, 1116 (D.Ariz.1998). " A party seeking reconsideration must show more than a disagreement with the Court's decision, and recapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry the moving party's burden." U.S. v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D.Cal.2001).

B. Overview of Plaintiff's Arguments

Plaintiff argues several reasons for requesting this Court grant relief and reverse the grant of the motions for summary adjudication. Plaintiff's arguments for relief from the Court's Order are as follows:

1. The Court was incorrect in finding the documents attached to Plaintiff's counsel's affidavit inadmissible because the documents could have been authenticated by witnesses listed in Plaintiff's counsel's affidavit;

2. Plaintiff had limited resources to dispute Defendants' motion because discovery was closed;

3. The Court was incorrect in finding Defendants met their burden on summary judgment, shifting the burden to the plaintiff (Doc. 31 Moving papers p. 15 et seq.);

4. The Court should have admitted the documents because they were self-authenticating; (Doc. 31, Moving papers, p. 11.)

5. The Court should have admitted the documents because the plaintiff had no obligation to depose witnesses and could rely on his own investigation at trial;

6. The documents could have been authenticated but for Defendants' " misconduct," characterized as dilatory tactics (Doc. 31 p. 12); and,

7. The Court should reopen discovery so that the plaintiff can take depositions or verifications from the defendants. (Doc. 31 p. 18.)

C. The Discovery

Plaintiff argues that he was " stuck" opposing the motion with the limited discovery resources he had.

" Mistake, inadvertence, surprise or excusable neglect" are usually premised upon mistakes that a party could not have protected against in the litigation. For instance, courts have declined to grant Rule 60(b)(1) relief when the mistake was the result of the moving party's deliberate and counseled decision. Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d 1097, 1100-1102 (9th Cir.2006).

Plaintiff had ample opportunity to conduct discovery. This action was filed on December 3, 2009, and the Scheduling Order, issued on March 4, 2010, provided for a discovery period through September 13, 2010. Thus, Plaintiff had a six-month discovery window. No argument is presented as to why this time period was insufficient. Indeed, plaintiff presents evidence that counsel engaged in extensive, informal investigative efforts, such as interviewing witnesses during the discovery period.² Further, the dates set at the Scheduling Conference were with the agreement of counsel. The dates were chosen by the Court with cooperation of counsel. The Court's docket does not show that plaintiff later requested any extension of discovery or any modification of the Scheduling Order. Nothing in the Court's docket indicates that plaintiff could not conduct contemplated discovery during the period allotted and agreed upon by the parties. Accordingly, there was ample opportunity to conduct discovery. Plaintiff argues that defendants engaged in dilatory conduct in producing requested and needed documents. (Doc. 31, Moving papers p. 12.) Plaintiff argues that he did not receive the documents he requested until the discovery cut-off date had arrived. Plaintiff notes he propounded Documents Requests of June 17, 2010, received an unsatisfactory response on July 22, 2010 and thereafter engaged in meet and confer. (Doc. 31, Moving papers p. 12.) Plaintiff argues that defendant did not produce the documents until September 1, 2010, two weeks before the discovery-cut off date.

If plaintiff needed assistance with discovery, plaintiff was not without discovery remedies. He could have moved to compel, moved to reopen discovery, or moved to modify the Scheduling Order. Additionally, he could have opposed the motion for summary judgment on the grounds of Rule 56(f) (now Rule 56(d), as amended), that additional discovery was needed. Instead, plaintiff chose a tactical course of action in discovery and in opposition to the motion for summary judgment. If discovery was not sufficient, plaintiff had sufficient remedies under the Rules of Civil Procedure. Accordingly, any discovery limitations were the result of plaintiff's choice of actions.

D. The Admissibility of the Documents

The majority of plaintiff's motion argues that the documents and evidence the Court found inadmissible are in fact admissible. Plaintiff argues that the documents were obtained in defendants' discovery responses or defendants' disclosure and thus should have been considered by the Court. Plaintiff argues that Rule 56(c) permits the Court to consider " discovery and disclosure material." ³ (Doc. 31, Moving papers p. 6.)

The language quoted by plaintiff from Rule 56 that the court may consider " discovery and disclosure material" does not obviate the need that the supporting documents must be properly authenticated and admissible. " The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Fed.R.Evid. 901.

Plaintiff cites Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d 1542 (9th Cir.1990) for the proposition that he may employ the procedure he used to authenticate documents and present evidence.⁴ He argues that " someone else" could authenticate the documents later and therefore the documents should have been considered.

Hal Roach does not stand for the proposition plaintiff proposes. In Hal Roach, evidence of a " Registration Statement" purportedly filed with the Securities and Exchange Commission, was attached to the declaration of the corporations' corporate counsel's declaration. Corporate Counsel failed to explain his role in preparing the documents or his personal knowledge of the document. The Court held that the Registration was inadmissible because proper foundation had not been laid to authenticate the document:

" To be considered by the court, documents must be authenticated by and attached to an affidavit that meets the requirements of Rule 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence. A document which lacks a proper foundation to authenticate it cannot be used to support a motion for summary judgment." Hal Roach, 896 F.2d at 1551 (citations omitted.)

The corporate counsel lacked the necessary personal knowledge to authenticate the Registration Statement. On a motion for reconsideration, the Court nonetheless considered the Registration Statement because a declaration was then provided by a person with personal knowledge of the statement. In addition, a certified copy of the statement had been provided to the Court. Based upon these factors, the Ninth Circuit found that the trial court's consideration of the Registration Statement was " harmless."

Here, Hal Roach applies, not for the proposition suggested by plaintiff, but because no proper foundation was laid for the documents. Plaintiff's counsel sought to authenticate the documents through his declaration. However, he lacked personal knowledge of these documents. Whether some other person was capable of authenticating the documents is irrelevant, because no declaration authenticating the documents had been introduced. Counsel speculates that the " persons named in plaintiff's counsel's affidavit could have authenticated each of their own emails and documents." (Doc. 31, Moving papers p. 7.) Whether some person could authenticate plaintiff's evidence is not the point. Plaintiff had the burden of producing admissible evidence for consideration by the Court. See Fed.R.Civ.P 56(e). Plaintiff failed to do so.

Plaintiff argues the documents are self-authenticating because they were produced in discovery.

Documents produced in discovery are not generally self-authenticating, and it is plaintiff's burden to establish the authentication of each document presented as evidentiary support. Certain documents are self-authenticating. Fed.R.Evid. 902(1)-(2) (requiring public documents to either be signed under seal or attached to a certification signed under seal). Merely producing a document in discovery does not " authenticate it." See Fed.R.Civ. 902; Orr v. Bank of America, NT & SA, 285 F.3d 764, 773, fn. 7 (9th Cir.2002) ( " Authentication is a special aspect of relevancy concerned with establishing the genuineness of evidence." )

E. Defendant's Burden of Proof

Plaintiff reargues that defendants did not meet their burden of proof. Plaintiff argues that defendants did not " show" plaintiff lacked evidence. Plaintiff argues that the Rule 56 standard has changed and that defendant must cite to the record of the absence of evidence, citing Amended Rule 56(c). (Doc. 35, Reply p. 2-3.)

Contrary to plaintiff's arguments, Amended Rule 56(c) does not alter the standard of proof. Rule 56(c), as amended, states in relevant part:

" A party asserting that a fact cannot be or is genuinely disputed must support that assertion by ... showing that ... an adverse party cannot produce admissible evidence to support the fact." Rule 56(c)(1)(B), as amended.

The burden of the moving party was addressed in the Court's Order. The Court reviewed the authorities for a defendant to " show" that plaintiff lacked evidence. (See Doc. 30, Order p. 4.) The Court held that defendants had met their burden of " showing" plaintiff lacked evidence. Id. The legal standards remain the same, even under the amended Rule. Indeed, the Advisory Comments to amended Rule 56(c)(1)(B) state that this subsection " recognizes that a party need not always point to specific record materials; " and that a defendant may rely upon a showing " that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact." Thus, the Court finds no error in its ruling regarding defendants meeting their burden of proof.

Plaintiff also argues he had " no obligation to take depositions and could rely upon his own investigations in presenting his case at trial." (Doc. 31, Moving papers p. 15.) He argues that his responses to Defendant's interrogatory states facts to support his contention that defendant Wittman caused the report to be leaked. (Doc. 31, Moving papers p. 16.)

While plaintiff is correct that he had no obligation to take depositions, ⁵ plaintiff is incorrect in the other respects. To successfully oppose a motion for summary judgment, plaintiff must introduce admissible evidence showing there is a genuine issue for trial. Fed.R.Civ. P. 56(e). As fully discussed above and in the Court's order granting summary judgment, plaintiff has failed to do so.

F. Burden on the § 1983 Claim

Plaintiff argues that the Court wrongly decided that there was no question of fact on this claim. He argues that he was deprived of his constitutional rights to be free from harassment for his choice not to cooperate with a police investigation. (Doc. 17, Moving papers p. 17.) He points to a telephone call between himself and a Tulare County Sheriff's Office investigator where plaintiff says he does not want to give a statement because " I can't afford to lose my job ..."

This evidence was considered by the court and merely is reargued here. This evidence is insufficient to raise an issue of fact. The Court previously held that:

" Plaintiff has not introduced evidence that he was threatened by the TCSO or his own office to cooperate. Plaintiff does not introduce evidence he was under oath or faced a choice of cooperating or losing his job."

Further, plaintiff's speculation about a potential loss of his job does not rise to a potential constitutional violation. Plaintiff is not seeking to hold his own police department responsible for threatening to fire him (and there is no evidence the department threatened to fire him); he seeks to hold the TCSO's liable for his own department's possible violations of his rights. Any repercussions from failure to cooperate would be administered by a non-party, his department, and not a defendant here. Plaintiff offers speculation that he was faced with adverse consequences. G. Plaintiff's Request for Rule 56(f) Relief to Conduct Additional Discovery

Plaintiff asks the Court to grant Plaintiff relief for the purpose of conducting further discovery pursuant to Fed.R.Civ.P. 56(f) (now Rule 56(d), as amended). Plaintiff argues that his investigative work has been informal and that he did not expect to get admissions from defendants. He wants to take the depositions of Sherriff Wittman, Undersheriff Cleek, Lt. Weller, Lt. Carter, Capt. Lomeli, Sgt. Peterson and the District Attorney and Deputy District Attorney Dan Gallian, and Ms. Green and Mr. Castillon of the Visalia Times-Delta. (Doc. 31, Moving papers p. 19.)

Here, the Court denies the relief under Rule 56(f). The request is made after the close of discovery. Plaintiff has had six months to conduct discovery. Plaintiff had the full discovery period in which to conduct discovery and obtain evidence to support his claims. As plaintiff acknowledges in his Reply brief, he conducted informal discovery. Rather than conduct formal discovery, plaintiff made a tactical decision to rely upon informal investigative efforts. Plaintiff's informal discovery is a method which may be used to obtain evidence, but plaintiff had the burden of obtaining admissible evidence for purposes of opposing a motion for summary judgment.

Now that plaintiff has been unsuccessful on the summary judgment motion, he seeks to reopen discovery to correct errors. Plaintiff's request is not brought during the pendency of the summary motion. The request is made after plaintiff has lost the motion. The request is made after discovery has closed. The Court does not find any justification for reopening discovery. Plaintiff has not been shortchanged from the ability to engage in discovery during the full the discovery period. Plaintiff's request unfairly provides plaintiff a second bite at the apple for a tactical decision which has proven unsuccessful.

CONCLUSION

For all the foregoing reasons, plaintiff's motion for reconsideration is DENIED.

IT IS SO ORDERED.

Clark v. County of Tulare

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Clark v. County of Tulare

Clark v. County of Tulare

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Clark v. County of Tulare

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Clark v. County of Tulare

Clark v. County of Tulare

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