Opinion
No. CV-F-05-1630 OWW/DLB.
July 14, 2006
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS TO DISMISS (Docs. 35, 37 39) AND DIRECTING PLAINTIFFS TO FILE FIRST AMENDED COMPLAINT
On December 22, 2005, plaintiffs Tiffany Fenters, Debra Fenters, and Virgil Fenters filed a Complaint for Damages and Declaratory Relief. Tiffany is alleged to be a 22 year-old college student. Her parents are Debra and Virgil Fenters. The defendants are Abbco Investments, LLC dba Yosemite Chevron, Robert Abbate, James Abbate and John Abbate (the Abbate Defendants); the County of Merced, Gordon Spencer, Marc Bacciarini, and Merle Wayne Hutton (the County Defendants); and Victor Fung, Erin McIlhatton, and Cassabon Associates, LLP (the Cassabon Defendants). All three sets of defendants have filed motions to dismiss pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure.
The Complaint alleges that defendant Abbco Investments, LLC has an interest in defendant Yosemite Chevron; that defendant Robert Abbate has an ownership interest in Abbco and/or Yosemite Chevron; that defendant Robert Abbate represented himself to be the owner and manager of Yosemite Chevron and was the primary complaining witness against Tiffany in the criminal prosecution; that defendant James Abbate has an ownership interest in Abbco and/or Yosemite Chevron and also was a complaining witness against Tiffany in the criminal prosecution; that defendant John Abbate has an ownership interest in Abbco and/or Yosemite Chevron and is the brother of Robert and James. The Complaint alleges that each of the individual Abbate defendants are "liable under state and federal law for his own actions and the acts of Yosemite Chevron's and/or Abbco's employees, representatives, agents or assigns" and that each of the individual Abbate defendants are "liable under federal law based on joint activity and/or conspiracy he engaged in, either himself or through the employees, representatives, agents or assigns of Yosemite Chevron and/or Abbco, with individuals acting under color of law and within the course and scope of their duties."
The Complaint alleges that Tiffany Fenters was employed by Yosemite Chevron on June 6, 2002 as a cashier/stock clerk; that Tiffany was instructed to balance the register and clear the register drawer of any cash in excess of $150 at the end of her shift; that, shortly after beginning her employment, she learned that she and other employees were required to reimburse Yosemite Chevron for any funds lost as a result of "drive-offs" as a condition of their continued employment and that employees were required to pay for daily defalcations, regardless of the cause; that Tiffany was required to work overtime without extra pay as a condition of her continued employment regardless of her other committments if additional help was needed and was informed that she was not entitled to overtime because she was a volunteer worker in those situations; that, within months of starting work at Yosemite Chevron, another employee expressed inappropriate and unwanted sexual interest in her, lured her to his residence under the false pretense that a business party was to take place and then put an unknown controlled substance in her drink, forced her to stay at his residence when she tried to leave and began to grab and touch her in a highly inappropriate sexual manner, and that, when Tiffany brought this incident to Yosemite Chevron's management, no effective remedial action was taken and no adverse personnel action was taken against the employee for his conduct; that, when another employee was videotaped taking money out of Tiffany's purse, the employee admitted taking the money but indicated that he was joking; that it became apparent that illicit drug use was occurring at Yosemite Chevron, including such use by defendant Robert Abbate; that Tiffany voiced numerous complaints about the pattern of illegal activity alleged in the Complaint; that based on the pattern of illegal activity and Yosemite Chevron's management's failure to take effective remedial action, Tiffany left her employment with Yosemite Chevron on March 26, 2003; that she was forced without compensation to return to the premises of Yosemite Chevron to put her decision in writing and that she was not paid all the compensation to which she was then legally entitled, including reimbursement for sums she had been illegally required to pay for "drive-offs" and other defalcations, and for overtime. The Complaint further alleges that defendants Robert Abbate and James Abbate and other representatives of Yosemite Chevron went to the Office of the Merced County District Attorney and made false and retailiatory charges of embezzlement against Tiffany; that these allegations were directed to the Office of the District Attorney, instead of the law enforcement agency with primary jurisdiction, because the complaining witnesses had a prior personal relationship with defendant District Attorney Gordan Spencer; that "available records indicate that Spencer directed and routed the Abbates' and Yosemite Chevron's complaint not to the local law enforcement agency with primary jurisdiction, as would typically be the case, but instead to [defendant Merle Wayne Hutton, Supervising Investigator for the Merced County District Attorney]"; that "during the period of April, May and June 2003, Hutton headed a result-oriented investigation into the Abbates' and Yosemite Chevron's false allegations at their behest and at Spencer's direction" and that Spencer and the Abbates participated in this investigation. The Complaint alleges that Tiffany was charged with embezzlement in violation of the California Penal Code on June 23, 2003 and booked on these charges on August 7, 2003. The Complaint alleges that basis for the criminal prosecution was that Tiffany advised and instructed another Yosemite Chevron employee, Alejandro Aceves, on how to embezzle funds on a consistent substantial basis, that Tiffany was personally responsible for embezzling in excess of $12,000 and that Aceves was responsible for embezzling in excess of $19,000; that these allegations were false and without any reliable evidentiary support; that, over the time the embezzlement allegedly occurred, there was no corresponding drop in income or inventory, the regular checks of the register indicated losses consistent with the alleged embezzlement, there was no indication that Tiffany was responsible for any of the alleged suspicious activity because several employees work each shift, that Yosemite Chevron's system of controls make its records and the allegations of embezzlement highly suspect, and that there was no indication that Tiffany was ever reported during the subject time period as having any unexplained amounts of cash or suspicious property. The Complaint then alleges:
29. The false and baseless allegations of embezzlement against Tiffany were supported by the accountant firm retained on behalf of the prosecution, [defendant Cassabon Associates] and the accountants from Cassabon specifically assisting the prosecution, [defendants Victor K. Fung and Erin M. McIlhatton]. These defendants disregarded all of the above-outlined facts showing the embezzlement allegations to be baseless and incredible, as well as the professional standards that are supposed to be followed by accountants engaged to provide litigation services. As a result, these defendants produced misleading, result-oriented reports that served to add a false air of legitimacy to the embezzlement allegations.
The Complaint further alleges that defendant Spencer attended a hearing in the criminal proceeding on January 5, 2004 and acknowledged on that date that he had a personal relationship with the Abbates; that, despite Tiffany's lack of a criminal history and the relatively small amount of the alleged loss, the criminal proceeding received "'special attention'" and a felony resolution was always demanded at Spencer's insistance." The Complaint further alleges that "despite any credible incriminating facts or evidence, [defendant Deputy District Attorney Mark Bacciarini] persisted in pursuing a felony conviction at Spencer's instruction." Trial commenced on September 27, 2005 and Tiffany was acquitted on October 13, 2005. The Complaint further alleges that plaintiffs sustained approximately $60,000 in legal and related expenses, that the delay in bringing the case to trial impaired Tiffany's ability to pursue her education, forcing her to withdraw from several classes and causing her to receive failing or unsatisfactory grades in some of her clases; that Debra and Virgil lost time and income producing activities as a result of attending court proceedings and meetings with counsel and experts, that Tiffany has developed stress related kidney stones, lost significant amounts of sleep, experienced mental stress and anguish that required the prescription of psychotropic medication, and continues to suffer these symptoms; that Virgil has been placed on psychotropic medication and was hospitalized as a result of cardiac symptons related to the stress he endured, that Debra has endured sleepliness and weight loss; that Tiffany, fearing further retaliation, has left Merced County to continue her education elsewhere, and that Debra and Virgil also live in fear of retaliation and continue to suffer emotionally and financially as a result of the defendants' wrongful acts.
The First Cause of Action is brought by Tiffany against all defendants except Bacciarini pursuant to 42 U.S.C. § 1983 and alleges taht defendants violated Tiffany's rights under the Fourth Amendment "not to have her liberty restricted without legal basis, to be arrested without probable cause, and to be prosecuted maliciously without probable cause", the First Cause of Action alleging that "defendants Yosemite Chevron, Abbco, the Abbates, Fung, McIlhatton, and Cassabon were acting in joint activity with and/or were conspiring with Spencer, Hutton, and Merced County."
The Second Cause of Action is brought by Tiffany against all defendants pursuant to 28 U.S.C. § 2201 and alleges:
39. The foregoing factual allegations set forth an actual controversy with respect to the violation of plaintiff Tiffany Fenters' federal constitutional rights under the Fourth Amendment not to have her liberty restricted without legal basis, to be arrested without probable cause, and to be prosecuted maliciously without probable cause. The foregoing factual allegations alse set forth, as to defendants Yosemite Chevron, Abbco, and the Abbates, an actual controversy with respect to the violation of Tiffany's federal labor law rights not to be denied overtime pay and other compensation and not to be retaliated against for making good faith complaints in this regard. Therefore, this proceeding is an appropriate one for declaratory relief under 28 U.S.C. § 2201.
40. Plaintiff seeks a declaration from this Court that the defendants, based on the factual transaction underlying this proceeding, violated her rights under the Fourth Amendment not to have her liberty restricted without legal basis, to be arrested without probable cause, and to be prosecuted maliciously without probable cause. This declaration may be based on all of the facts underlying this proceeding without regard to any issue of qualified or absolute immunity, since such immunities only apply to claims for monetary relief. Plaintiff also seeks a declaration that defendants Yosemite Chevron, Abbco, and the Abbates violated her federal labor law rights not to be denied overtime pay and other compensation and not to be retaliated against for making good faith complaints in this regard.
The Third Cause of Action is brought by Tiffany against the Abbate Defendants and the Cassabon Defendants pursuant to California Civil Code § 52.1 and alleges that these defendants' alleged actions "constitute a deprivation of [Tiffany's] rights, privileges and immunities both under article I of the California Constitution and the Fourth Amendment, specifically, her rights not to have her liberty restricted without legal basis, to be arrested without probable cause, and to be prosecuted maliciously without probable cause" and that these defendants' "interference with these constitutional rights was accomplished by means of force, coercion, and intimidation, and/or the threat thereof."
The Fourth Cause of Action is brought by Tiffany against the Abbate Defendants and the Cassabon Defendants for false arrest under California common law, alleging that these defendants' acts caused Tiffeny "to be arrested without probable cause or other legal basis."
The Fifth Cause of Action is brought by Tiffany against the Abbate Defendants and the Cassabon Defendants for malicious prosecution under California common law, alleging that these defendants' acts caused Tiffany "to be maliciously prosecuted without probable cause or other legal basis."
The Sixth Cause of Action is brought by all plaintiffs against the Abbate Defendants and the Cassabon Defendants for negligence under California common law, alleging that these defendants "had a duty to engage in the reasonable reporting of suspected crimes, avoiding false reports of crimes, and, as to Fung, McIlhatton, and Cassabon, the competent performance of accounting services in the litigation context", that these defendants' wrongful acts caused Tiffany "to be wrongfully detained, arrested and prosecuted without probable cause or other legal basis" and caused Debra and Virgil "to sustain financial, physical and emotional losses."
The Seventh Cause of Action is brought by Tiffany against the Abbate Defendants and the Cassabon Defendants for intentional infliction of emotional distress, alleging that these defendants intentionally engaged in outrageous conduct that resulted in Tiffany being "wrongfully detained, arrested and prosecuted without probable cause or other legal basis . . . and . . . were done in disregard of the probability of their causing plaintiff emotional distress."
The Eighth Cause of Action is brought by Tiffany against the Abbate Defendants and the Cassabon Defendants for negligent infliction of emotional distress.
The Ninth Cause of Action is brought by Tiffany against the Abbate Defendants pursuant to 29 U.S.C. § 201, et seq., alleging that "[b]y refusing to pay . . . Tiffany . . . overtime and other compensation to which she was clearly entitled, the defendants have denied her wages that she earned during her employment", that the "foregoing actions are in violation of 29 U.S.C. § 201, et seq., and dictate that the defendants are liable to the plaintiff" and these violations were willful, entitling Tiffany to additional liquidated damages.
The Tenth Cause of Action is brought by Tiffany against the Abbate Defendants pursuant to 29 U.S.C. § 215 et seq., alleging that the Abbate Defendants violated that anti-retaliation provision of the Fair Labor Standards Act, 29 U.S.C. §§ 215, 216, by retaliating against Tiffany for her complaints about the denial of compensation and overtime rights.
The Eleventh Cause of Action is brought by Tiffany against the Abbate Defendants pursuant to California Labor Code §§ 98.6, 232.5 and 1102.5, alleging that the Abbate Defendants retaliated against Tiffany for complaining to the Abbate Defendants about the denial of her rights to compensation and benefits under federal and state law.
The Twelfth Cause of Action is brought by Tiffany against the Abbate Defendants. The Abbate Defendants do not move for dismissal of the Twelfth Cause of Action.
The Thirteenth Cause of Action is brought by Tiffany against the Abbate Defendants for quantum meruit under California common law, alleging that the Abbate Defendants denied Tiffany wages that she earned during her employment by failing to pay overtime and other compensation to which she was entitled.
The Fourteenth Cause of Action is brought by Tiffany for defamation under California common law against the Abbate Defendants and the Cassabon Defendants, alleging that these defendants "intentionally caused the publication of false and unprivileged oral and written statements that had a tendency to damage the plaintiff Tiffany Fenters' reputation."
The Complaint prays for compensatory damages, declaratory relief, punitive damages as to the federal civil rights causes of action, treble damages under California Civil Code § 52.1, liquidated damages under federal and state labor laws, and for attorneys' fees and costs of suit.
A. Standards Governing Motion to Dismiss.
A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the complaint. Novarro v. Black, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal of a claim under Rule 12(b)(6) is appropriate only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Dismissal is warranted under Rule 12(b)(6) where the complaint lacks a cognizable legal theory or where the complaint presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe all inferences from them in the light most favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). However, legal conclusions need not be taken as true merely because they are cast in the form of factual allegations. Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003). Immunities and other affirmative defenses may be upheld on a motion to dismiss only when they are established on the face of the complaint. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999); Jablon v. Dean Witter Co., 614 F.2d 677, 682 (9th Cir. 1980) When ruling on a motion to dismiss, the court may consider the facts alleged in the complaint, documents attached to the complaint, documents relied upon but not attached to the complaint when authenticity is not contested, and matters of which the court takes judicial notice. Parrino v. FHP, Inc., 146 F.3d 699, 705-706 (9th Cir. 1988).
B. Motion to Dismiss by the County Defendants.
The County defendants move for dismissal on several grounds.
1. First Cause of Action. a. Immunity of Defendants Spencer and Bacciarini.
Defendants Spencer and Bacciarini move for dismissal of the First Cause of Action on the ground that each is entitled to absolute immunity from liability under 42 U.S.C. § 1983.
Absolute or qualified immunity does not bar actions for declaratory or injunctive relief. Los Angeles Police Protective League v. Gates, 995 F.2d 1469, 1472 (9th Cir. 1993).
The First Cause of Action is not alleged against defendant Bacciarini. However, defendant Spencer is named in this cause of action.
A prosecutor is protected by absolute immunity from liability for damages under Section 1983 "when performing the traditional functions of an advocate." Kalina v. Fletcher, 522 U.S. 118, 131 (1997). However, "the actions of a prosecutor are not absolutely immune merely because they are performed by a prosecutor." Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). Prosecutorial immunity depends on "the nature of the function performed, not the identity of the actor who performed it." Kalina, 522 U.S. at 127. Prosecutors are entitled to qualified immunity, rather than absolute immunity, when they perform administrative functions or "investigative functions normally performed by a detective or police officer." Kalina, 522 U.S. at 126. The official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question. The presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties. Burns v. Reed, 500 U.S. 478, 486-487 (1991).
To qualify as advocacy, an act must be "intimately associated with the judicial phase of the criminal process." Imbler v. Pachtman, 424 U.S. 409, 430 (1976). Thus, a prosecutor enjoys absolute immunity from liability from a suit alleging that he maliciously initiated a prosecution, used perjured testimony at trial, or suppressed material evidence at trial. Imbler, 424 U.S. at 430. A prosecutor is also absolutely immune for direct participation in a probable cause hearing, Burns, 500 U.S. at 491, and for preparing and filing charging documents. Kalina, 522 U.S. at 130. Buckley v. Fitzsimmons denied absolute immunity to prosecutors who fabricated evidence "during the early stage of the investigation" when "police officers and assistant prosecutors were performing essentially the same investigatory functions." 509 U.S. at 273. Buckley also denied absolute immunity to prosecutors accused of holding a defamatory press conference, concluding that that activity "had no functional tie to the judicial process." Id. at 277. The Supreme Court has also held that a prosecutor does not have absolute immunity for providing legal advice that probable cause exists to arrest a suspect, Burns, 500 U.S. at 491, or for personally attesting to the truth of evidence in support of charging documents. Kalina, 522 U.S. at 130. As explained in Genzler v. Longanbach, 410 F.3d 630, 637-638 (9th Cir. 2005), cert. denied, ___ U.S. ___, 126 S.Ct. 736, 737, 749 (2005):
The analysis of whether prosecutorial acts constitute advocacy or police-type investigative work is complicated by the fact that the Supreme Court has resisted any attempt to draw a bright-line between the two. In [ Buckley], the court noted that '[a] prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested.' 509 U.S. at 274 . . . This might suggest that once probable cause is present, or once an arrest has been made, a prosecutor assumes an advocacy-related role and enjoys absolute immunity. However, in a note appended to the quoted passage, the Court rejected this approach, explaining that 'a determination of probable cause does not guarantee a prosecutor absolute immunity for liability for all actions taken afterwards. Even after that determination . . . a prosecutor may engage in "police investigative work" that is entitled to only qualified immunity.' Id. at 274 n. 5. . . .
The Court has also rejected the idea that prosecutors are entitled to qualified immunity when they are engaged in investigation. In [ Buckley], the Court said that 'evaluating evidence and interviewing witnesses' in preparation for trial is advocacy. Id. at 273. This is true, notwithstanding the fact that some of the activities a prosecutor takes in preparation for trial, like the interview of witnesses, may be investigatory in nature. The question is whether a prosecutor's investigation is of the type normally done by police, in which case prosecutors enjoy only qualified immunity, or whether an investigation is bound up with the judicial process, thus affording prosecutors the heightened protection of absolute immunity.
Here, defendant Spencer argues, the Complaint alleges that when the Abbates reported the embezzlement to him, he agreed to prosecute Tiffany based on his friendship with the Abbate family and that he selected a different investigator to work the prosecution's case because of his friendship with the Abbate family. Defendant Spencer argues that, if true, this conduct could be considered reprehensible, but it is not actionable under Section 1983.
However, as plaintiff argues, the allegations of the Complaint are that defendant Spencer agreed to prosecute Tiffany because of his friendship with the Abbate family and that defendant Spencer directed defendant Hutton, rather than the police department, to investigate the alleged embezzlement, and that defendant Spencer participated in that investigation. While it appears that defendant Spencer is entitled to absolute immunity because of the decision to initiate the prosecution of Tiffany, the allegation that defendant Spencer participated in the investigation may negate absolute immunity from liability arising out of that investigation. "A prosecutor gathering evidence is more likely to be performing a quasi-judicial advocacy function when the prosecutor is 'organiz[ing], evaluati[ng], and marshaling [that] evidence' in preparation for a pending trial, in contrast ot the police-like activity of acquiring evidence which might be used in a prosecution.'" Genzler, 410 F.3d at 639.
Therefore, the allegations against defendant Spencer for initiating prosecution of Tiffany must be DISMISSED based on absolute prosecutorial immunity, but the allegations that defendant Spencer participated in a wrongful investigation of the alleged embezzlement survive.
b. Immunity of Defendant Hutton.
Defendant Hutton, Supervising Investigator for the Merced County District Attorney, moves to dismiss the claims against him on the ground of absolute immunity, citing Gobel v. Maricopa County, 867 F.2d 1201, 1203 n. 5 (9th Cir. 1989) ("Investigators, employed by a prosecutor and performing investigative work in connection with a criminal prosecution, are entitled to the same degree of immunity as prosecutors.")
The only allegations in the Complaint against defendant Hutton are that defendant Spencer "directed and routed" the investigation of the Abbate Defendants complaint that Tiffany had embezzled funds to defendant Hutton and that "during the period of April, May and June 2003, Hutton headed a result-oriented investigation into the Abbates' and Yosemite Chevron's false allegations at their behest and at Spencer's direction." Because defendant Spencer is not entitled to absolute immunity, neither is defendant Hutton. Therefore, the motion to dismiss is DENIED.
c. Liability of County of Merced.
Defendant County of Merced moves for dismissal of the First Cause of Action on the ground that the County cannot be held vicariously liable under Monell v. Department of Social Services, 436 U.S. 658 (1978) for the acts of defendants Bacciarini or Hutton as they are not "final policy makers' for the Merced County District Attorney and cannot be held liable under Monell for the actions of defendant Spencer because Spencer acts as an arm of the state, not the County.
In opposing this aspect of the motion to dismiss, plaintiffs "do not disagree with the defendants' arguments". However, citing Chaloux v. Killeen, 886 F.2d 247, 250-251 (9th Cir. 1989), plaintiffs contend that the County may be found liable under the Second Cause of Action for declaratory relief, even absent a custom or policy under Monell.
In Chaloux, the Ninth Circuit held that Monell did not apply to any "official policy or custom" requirement to foreclose a suit for prospective relief against a county or its officials for enforcing allegedly unconstitutional state laws. Plaintiffs assert that, because they seek prospective equitable relief, i.e., expungement of Tiffany's arrest record, the County is a proper defendant in this action.
However, as the County Defendants note in their reply brief, there are no allegations in the Complaint to support the prospective equitable relief described by plaintiffs, expungement of Tiffany's criminal record nor that the County Defendants maintain this record or have the ability to effectuate the requested expungement. Furthermore, the County Defendants argue, the principal set forth in Chaloux does not negate dismissal of the County from this action, contending:
Where a party seeks an injunction to prevent a particular action by a municipality, the action is properly maintained against the municipal body. In the instant case, there are no allegations as to defendant County of Merced, other than it is the employing body for the remaining named public entity defendants, moreover plaintiff seeks no injunctive relief in her Complaint.
The First Cause of Action is DISMISSED against defendant County of Merced with LEAVE TO AMEND.
2. Second Cause of Action.
The County Defendants move to dismiss the Second Cause of Action for declaratory relief as inappropriate.
28 U.S.C. § 2201(a) provides in pertinent part:
In a case of actual controversy within its jurisdiction . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.
"The Declaratory Judgment Act embraces both constitutional and prudential concerns. A lawsut seeking federal declaratory relief must first present an actual case or controversy within the meaning of Article III, section 2 of the United States Constitution." Government Employees Ins. Co. v. Dizol, 133 F.3d 1220, 1222 (9th Cir. 1998). "It must also fulfill statutory jurisdictional prerequisites." Id. at 1222-1223. "If the suit passes constitutional and statutory muster, the district court must also be satisfied that entertaining the action is appropriate. This determination is discretionary, for the Declaratory Judgment Act is 'deliberately cast in terms of permissive, rather than mandatory, authority.' . . . The Act 'gave the federal courts competence to make a declaration of rights; it did not impose a duty to do so.'. . . . Id. at 1223.
In moving to dismiss the Second Cause of Action, the County Defendants refer to United States v. Doherty, 786 F.2d 491, 498 (2nd Cir. 1986):
The purpose of the [Declaratory Judgment Act] has been expressed in a variety of ways: 'Essentially, a declaratory relief action brings an issue before the court that otherwise might need to await a coercive action brought by the declaratory relief defendant.' . . .; the fundamental purpose of the DJA is to 'avoid accrual of avoidable damages to one not certain of his rights and to afford him an early adjudication without waiting until his adversary should see fit to begin suit, after damages have accrued,' . . .; the primary purpose of the DJA is to have a declaration of rights not already determined, not to determine whether rights already adjudicated were adjudicated properly, . . .; the declaratory judgment procedure 'creates a means by which rights and obligations may be adjudicated in cases involving an actual controversy that has not reached the stage at which either party may seek a coercive remedy, or in which the party entitled to such a remedy fails to sue for it,' . . .; the declaratory judgment procedure 'enable[s] a party who is challenged, threatened or endangered in the enjoyment of what he claims to be his rights, to initiate the proceedings against his tormentor and remove the cloud by an authoritative determination of the plaintiff's legal right, privilege and immunity and the defendant's absence of right, and disability,'. . . .
The County Defendants argue that the Second Cause of Action should be dismissed because plaintiffs are not seeking a declaration of the rights and duties of the parties. Rather, all of the acts alleged in the Complaint have already occurred and the granting of declaratory relief will not prevent further damages or further the purposes of the Declaratory Judgment Act. Plaintiffs, characterizing the County Defendants' argument as claiming that the declaratory relief claim is moot in the Article III sense, contend that even where an equitable relief claim involves past exposure to illegal conduct, a present case or controvesy exists if there are continuing, present adverse effects, see O'Shea v. Littleton, 414 U.S. 488, 495-496 (1974), and that dismissal of the Second Cause of Action "on the grounds of mootness would be justified only if it were absolutely clear that the litigant no longer had any need of the judicial protection it sought." Adarand Constructors, Inc. v. Slater, 528 U.S.C 216, 224 (2000).
Plaintiffs argue that the existence of records of an unconstitutional arrest is a sufficient adverse consequence to warrant declaratory relief, citing among other cases, Maurer v. Ind. and As Members of Los Angeles Cty., 691 F.2d 434 (9th Cir. 1982).
In Maurer, a state prisoner brought a civil rights action alleging that his arrest was invalid on federal constitutional grounds and seeking a permanent injunction prohibiting dissemination of his arrest record. The Ninth Circuit held that the district erred in dismissing Mauer's expungement action:
It is well-settled that the federal courts have inherent equitable power to order 'the expungement of local arrest records as an appropriate remedy in the wake of police action in violation of constitutional rights.' . . . Contrary to the district court's conclusion, Maurer has no adequate remedy under state law for his claim. The state statute upon which the district court relied provides for the destruction of arrest records only where the court determines after an acquittal that the defendant is 'factually innocent of the charge.' California Penal Code § 851.85. Mauer seeks a declaratory judgment that his arrest violated the Fourth Amendment. There is no adequate remedy at law for that claim.691 F.2d at 437.
Plaintiffs further argue that there is also the possibility that Tiffany could be disadvantaged in terms of credibility, promotions, or future employment as a result of having a serious felony arrest on her record. Therefore, plaintiffs argue, the Second Cause of Action is not moot.
The County Defendants reply that the attempt in plaintiffs' opposition to portray the relief sought as prospective equitable relief is "clearly a litigation tactic argued to avoid the unambiguous rule of law that Declaratory Relief cannot be maintained to redress past wrongs." The County Defendants again note that plaintiffs' reference to expungement of criminal records is unsupported by any allegations in the Complaint and is not even alleged in the Second Cause of Action. The County Defendants assert:
While it is true that a plaintiff's complaint should be construed liberally toward sufficiency, and all reasonable inferences should be drawn in favor of the pleading, it is improper to ask the Court to fill in the gap of potential meanings by assuming facts which have not been pled or assuming defendants have violated laws in ways a plaintiff has not alleged.
In their reply brief, the County Defendants argue that the Second Cause of Action against defendant Bacciarini should be dismissed because plaintiffs seek a declaration of the unconstitutionality of Bacciarini's prosecution of Tiffany "without identifying a present or justiciable controversy". The County Defendants assert that "all alleged acts on the part of defendant Marc Bacciarini are within the ambit of the absolute immunity protection from damages . . . and that plaintiff has not pled any facts which would establish a justiciable controversy under the Declaratory Judgment Act."
Plaintiff has not alleged any pending prosecution of Tiffany by defendant Bacciarini nor does the Complaint contain any allegations that plaintiffs have sought expungement of Tiffany's criminal record, nor that the County Defendants maintain this record or have the ability to effectuate the requested expungement.
Therefore, the Second Cause of Action is DISMISSED against the County Defendants with LEAVE TO AMEND.
3. Claim for Punitive Damages.
The County Defendants move to dismiss the prayer for punitive damages.
There is no question that punitive damages are not recoverable in a Section 1983 action against a municipality, City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981), or against a public entity under California law, California Government Code § 818. Therefore, the prayer for punitive damages against the County of Merced is dismissed with prejudice.
However, defendants Spencer and Hutton are sued in their individual capacities in the First Cause of Action. If neither of these defendants is entitled to absolute or qualified immunity, an individual defendant can be found liable for punitive damages under Section 1983. See Ruvalcaba v. City of Los Angeles, 167 F.3d 514, 524 (9th Cir.), cert. denied, 528 U.S. 1003 (1999). In addition, Government Code § 818 does not prohibit a claim of punitive damages against employees of a public entity. Runyon v. Superior Court, 187 Cal.App.3d 878 (1986). Therefore, the request for dismissal of the prayer for punitive damages against defendants Spencer and Hutton is DENIED.
C. Motion to Dismiss by the Abbate Defendants.
The Abbate Defendants move to dismiss the causes of action alleged against them, except the Twelfth Cause of Action.
1. First Cause of Action for Violation of Section 1983.
The Abbate Defendants move to dismiss this cause of action on three grounds, each of which will be discussed under separate heading.
a. Absolute Witness Immunity.
Contending that the Complaint alleges that the Abbate Defendants conspired with the District Attorney's Office and the Cassabon Defendants to provide false testimony against Tiffany, the Abbate Defendants argue that the First Cause of Action must be dismissed because of absolute witness immunity.
In Briscoe v. LaHue, 460 U.S. 325, 326 (1983), the Supreme Court held that a witness has absolute immunity from liability for civil damages under Section 1983 for giving perjured testimony at trial. In Franklin v. Terr, 201 F.3d 1098 (9th Cir. 2000), the Ninth Circuit applied Briscoe's immunity to Terr, a psychiatrist called by the prosecution who testified in Franklin's criminal trial based on charges by his daughter, Franklin-Lipsker, that Franklin had murdered a childhood fried twenty years earlier, and who was later sued by Franklin under Section 1983. Franklin alleged that Terr had conspired with others to present perjured testimony at the criminal trial. The Ninth Circuit held:
In the instant case, Franklin is attempting to circumvent Terr's absolute witness immunity by alleging that Terr conspired with others to present false testimony. We are persuaded that allowing a plaintiff to circumvent the Briscoe rule by alleging a conspiracy to present false testimony would undermine the purposes served by granting witnesses absolute immunity from liability for damages under § 1983. Absolute witness immunity is based on the policy of protecting the judicial process and is 'necessary to assure that judges, advocates, and witnesses can perform their respective functions without harassment or intimidation.' . . . As the Court stated in Briscoe, '[a] witness's apprehension of subsequent damages liability might induce two forms of self censorship. First, witnesses might be reluctant to come forward to testify. And once a witness is on the stand, his testimony might be distorted by the fear of subsequent liability.' . . . Moreover, as the district court correctly observed, '[a]ny other holding would eviserate absolute immunity since a witness rarely prepares her testimony on her own.'
. . . .
Franklin alleges that Terr conspired with Franklin-Lipsker by interviewing her before Franklin's trial and by then incorporating information obtained from those interviews into her own testimony. Franklin also alleges that Terr provided Franklin-Lipsker 'with a description of the sort of details that would make her testimony more persuasive, which Franklin-Lipsker then incorporated into her continually evolving "recollection" of the Nason murder.' The ostensible purpose of this conspiracy was to ensure that one person's testimony did not contradict the other's testimony. But because Terr's alleged conspiratorial behavior is inextricably tied to her testimony, we find that she is immune from damages. We are not presented with, and do not decide, the question whether § 1983 provides a cause of action against a defendant who conspired to present the perjured testimony of another but who did not testify as a witness herself.201 F.3d at 1101-1102.
Plaintiffs respond that the Abbate Defendants are not entitled to dismissal of the First Cause of Action on the ground of absolute witness immunity because the Complaint does not allege a conspiracy to concoct false testimony but the "wholesale fabrication of criminal charges." Plaintiffs refer to Cunningham v. Gates, 229 F.3d 1271, 1291 (9th Cir. 2000), wherein the Ninth Circuit, while recognizing that defendants, as witnesses, are entitled to absolute immunity based on their testimony notwithstanding allegations of conspiracy to commit perjury, held: "Obviously, testimonial immunity does not encompass non-testimonial acts such as fabricating evidence."
Plaintiffs also refer to Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002) as holding that a pathologist who falsified an autopsy report is a proper defendant under Section 1983. Galbraith did not discuss absolute witness immunity but, rather, the heightened pleading standard.
In their reply brief, the Abbate Defendants contend that plaintiffs' reliance on Gates is misplaced:
[T]he Fenters' complaint is notably bereft of allegations that are not closely tied to the alleged false testimony. There are no allegations that the Abbate defendants manufactured or procured false evidence, destroyed evidence and or coerced witnesses. Rather beyond the allegations of alleged false testimony is simply making a complaint to the district attorneys office. Nor is there any allegation that the only source of any of the disputed evidence was the Abbates.
The Abbate Defendants are entitled to dismissal of the First Cause of Action to the extent that any of the Abbate Defendants testified at the trial (or preliminary hearing). The Abbate Defendants are not entitled to dismissal of the First Cause of Action on this ground to the extent that the Complaint can be construed as alleging that the Abbate Defendants fabricated evidence or conspired to do so. However, the Complaint does not specifically allege that the Abbate Defendants (or any other defendants) fabricated any evidence or conspired to do so. The allegations are that the complaint of embezzlement was false, baseless, and in retaliation for Tiffany's complaints to her employer about wages and sexual harassment but there is no allegation that the evidence supporting that complaint of embezzlement was fabricated.
The First Cause of Action is DISMISSED on this ground with LEAVE TO AMEND.
b. Failure to Allege Color of State Authority.
The Abbate Defendants move to dismiss the First Cause of Action on the ground that the Complaint fails to allege that the Abbate Defendants acted with color of state authority.
In so moving, these defendants again rely on Franklin v. Terr:
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that (1) he or she was deprived of a right secured by the Constitution or federal law; and (2) the defendant acted 'under color of state authority' in depriving the plaintiff of this right . . . An allegation that a private person conspired with a state official satisfies the requirement that a defendant acted under color of state authority.201 F.3d at 1100. The Abbate Defendants complain that the Complaint merely alleges that they are "liable under federal law based on the joint activity and/or conspiracy . . . with individuals acting under color of law and within the course and scope of their duties." The Abbate Defendants contend that the Complaint "refers to the District Attorneys office as acting under color of state law, not the Abbate Defendants." With regard to defendant John Abbate, the only allegation connecting John Abbate with the actions alleged in the Complaint is that he has an ownership interest in Abbco and/or Yosemite Chevron and that he is the brother of defendants James and Robert Abbate. In their reply brief, the Abbate Defendants refer to Degrassi v. City of Glendora, 207 F.3d 636, 647 (9th Cir. 2000):
. . . Under § 1983, a claim may lie against a private party who 'is a willful participant in joint action with the State or its agents. Private persons, jointly engaged with state officials in the challenged action, are acting 'under color' of law for purposes of § 1983 actions.' Dennis v. Sparks, 449 U.S. 24, 27-28 . . . (1980). However, a bare allegation of such joint action will not overcome a motion to dismiss; the plaintiff must allege 'facts tending to show that [the defendants] acted "under color of state law or authority."' Sykes v. State of Cal. (Dep't. of Motor Vehicles), 497 F.2d 202 (9th Cir. 1974). The Abbate Defendants also refer to Collins v. Womancare, 878 F.2d 1145, 1154 (9th Cir. 1989):
One way to establish joint action is to demonstrate a conspiracy . . . Joint action also exists where a private party is 'a willful participant in joint action with the State or its agents. Private persons, jointly engaged with state officials in the challenged action, are acting "color of law" for purposes of § 1983 actions.'. . . .
In a recent case, we observed that '[t]he joint action inquiry focuses on whether the state has so far insinuated itself into a position of interdependence with [the private party] that it must be recognized as a joint participant in the challenged activity. . . . . '. . . Joint action therefore requires a substantial degree of cooperative action.
Merely complaining to the police does not convert a private party into a state actor. Id. at 1155. Nor is the execution by a private party of a sworn complaint which forms the basis of an arrest enough to convert the private party's acts into state action. Id. In Franklin v. Fox, 312 F.3d 423, 445 (9th Cir. 2002), the Ninth Circuit further explained:
A plaintiff may demonstrate joint action by proving the existence of a conspiracy or by showing that the private party was 'a willful participant in joint action with the State or its agents.' . . . To be liable as co-conspirators, each participant in a conspiracy need not know the exact details of the plan, but each participant must at least share the common objective of the conspiracy . . . To be liable as a co-conspirator, a private defendant must share with the public entity the goal of violating a plaintiff's constitutional rights. . . .
Our cases have been careful to require a substantial degree of cooperation before imposing civil liability for actions by private individuals that impinge on constitutional rights.
To the extent that the Abbate Defendants seek dismissal of the First Cause of Action on the ground that the Complaint fails to allege that they acted under color of state authority, the motion is denied. Allegations that the Abbate Defendants conspired with other state-actor defendants who are alleged to have acted under color of state law, in combination with private actors, is sufficient to state a claim.
However, there are no allegations in the Complaint that defendant John Abbate participated in any of the alleged wrongful actions. Ownership interest in Abbco, a limited liability corporation, or Yosemite Chevron, is not sufficient to impose liability without participation, knowledge and/or ratification. Therefore, DISMISSAL IS GRANTED WITH LEAVE TO AMEND.
c. Sufficiency of Allegations of Conspiracy
The Abbate Defendants further argue that the First Cause of Action fails to allege sufficient specific facts to support a claim of conspiracy which "must survive the application of the heightened pleading standard." In so arguing, the Abbate Defendants cite Coverdell v. Dept. of Social Health Services, 834 F.2d 758, 769 (9th Cir. 1987).
Coverdell is not valid authority for this claim. Coverdell involved the appellate review of a summary judgment order and not the standards to be applied in determining whether allegations of conspiracy state a claim within the meaning of Rule 12(b)(6). Furthermore, the Supreme Court has rejected the requirement of a heightened pleading standard in civil rights cases, ruling that the sufficiency of the allegations must be governed by application of Rules 8 and 9, Federal Rules of Civil Procedure. See Crawford-El v. Britton, 523 U.S. 574 (1998); Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993); see also Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002); Empress LLC v. City and County of San Francisco, 419 F.3d 1052 (9th Cir. 2005).
The Abbate Defendants object that there are no allegations in the Complaint from which it may be inferred that John Abbate did anything whatsoever to further the alleged conspiracy. With regard to the other Abbate Defendants, it is argued that there are no allegations "as to how the Abbate defendants allegedly conspired with each other, the District Attorneys office and the Cassabon defendants to provide false testimony."
Plaintiffs rejoin that the allegations of the Complaint suffice to alert defendants to the sequence of events and the relationship between the various defendants that are "more than sufficient to plead a conspiracy through circumstantial facts" and demonstrate the "requisite 'who, what, where, and when' information regarding the conspiracy."
With the exception of defendant John Abbate, the conspiracy allegations arguably are sufficient to permit defendants to frame a response. The Complaint does not make clear whether multiple conspiracies are alleged and, if so, who are the members, what actions were allegedly taken by those members in furtherance of the conspiracies, and at what times. Furthermore, plaintiffs concede that more specific allegations with regard to the participation of the Abbate Defendants can be made. The conspiracy claim is DISMISSED with LEAVE TO AMEND to allow plaintiffs to allege more specifically the factual basis of the conspiracy or conspiracies, particularly with respect to the Abbate Defendants.
2. Second Cause of Action for Declaratory Relief.
The Abbate Defendants move to dismiss the Second Cause of Action for declaratory relief on the same ground the County Defendants advance. See discussion supra.
Plaintiffs oppose the motion on the same basis as argued infra. Plaintiffs further argue:
[P]laintiffs' claim for damages due to unconstitutional arrest and prosecution in the First Cause of Action is subject to potential dismissal, at least as to some defendants, on the grounds of qualified immunity, and it is also subject to possible findings of no causation, zero damages, or nominal damages. Under any of these scenarios, even if the facts demonstrate that one or more of the defendants acted unconstitutionally, the First Cause of Action may not provide any meaningful relief. Moreover, there are official public documents, the records of plaintiff Tiffany Fenters' undeserved contact with the criminal justice system. Even if the First Cause of Action succeeds, it will not provide a basis for expunging the false public documents that can have an obvious negative impact on her reputation, and future prospects. Even further, a successful result as to the First Cause of Action would not do anything to prevent future similar abuses, while the Court could appoint a special master, issued detailed prospective decrees, or take other remedial steps based on the Second Cause of Action.
There is no basis to suggest that the Abbate Defendants can do anything about expunging Tiffany's criminal record. That defendants Spencer and Hutton may be entitled to absolute or qualified immunity from liability has no application to the Abbate Defendants. If there is no causation found with respect to the First Cause of Action, there will be no basis for proceeding with the Second Cause of Action. Plaintiffs' description of actions that could be taken by the Abbate Defendants to prevent future abuses are speculative and impracticable to enforce.
The motion to dismiss the Second Cause of Action as to the Abbate Defendants is GRANTED with LEAVE TO AMEND.
3. Third Cause of Action for Violation of California Civil Code § 52.1.
The Abbate Defendants move to dismiss the Third Cause of Action for violation of California Civil Code § 52.1 on several grounds. a. Based on Allegations of First Cause of Action.
California Civil Code § 52.1(b) provides that "[a]ny individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with, as described in subdivision (b), may institute and prosecute . . . a civil action for damages, including, but not limited to, damages under Section 52, injunctive relief, and other appropriate equitable relief to protect the peaceable exercise or enjoyment of the right or rights secured." Section 52.1(a) provides for an action by the Attorney General, district attorney or city attorney "[i]f a person or persons, whether or not acting under color of law, interferes by threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any individual . . . of rights secured by the Constitution or laws of the United States, or the rights secured by the Constitution or laws of this state. . . ."
The Abbate Defendants move for dismissal of this cause of action on the same grounds as set forth for dismissal of the First Cause of Action. See discussion infra.
b. Statute of Limitations.
The Abbate Defendants move for dismissal on the ground that the Third Cause of Action is barred by the two-year statute of limitations set forth in California Code of Civil Procedure § 340 and Gatto v. County of Sonoma, 98 Cal.App.4th 744, 760 (2002). In Gatto, the Court of Appeal held in pertinent part:
In their brief, these defendants refer to the "two-year" statute of limitations set forth in CCP § 340. However, Section 340 sets forth the one-year statute of limitations. Because Gatto also refers to the one-year statute of limitations applicable to actions under Section 1983 as being the limitations applicable to claims under Civil Code § 52.1, it is apparent that the reference in the brief to CCP § 340 is a typographical error. Effective January 1, 2003, California Code of Civil Procedure § 335.1 provides for a two-year statute of limitations for "an action for assault, battery, or injury to, or for the death of an individual caused by the wrongful act or neglect of another." For actions under 42 U.S.C. § 1983, the Ninth Circuit applies the forum state's statute of limitations for personal injury actions. Jonas v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004). Therefore, the Abbate Defendants should have referred to the two-year statute of limitations set forth in CCP § 335.1.
Gatto's complaint relies entirely on allegations of the denial of full and equal access to public accommodations guaranteed under section 51, subdivision (b) [of the Civil Code] and free speech guaranteed under article I, section 2 of the California Constitution, which Gatto seeks to enforce under section 52.1. As we have seen, the first claim clearly derives from common law principles and is for that reason subject to the one-year statute. The second is analogous to a federal claim for personal injury under 42 United States Code section 1983 which . . . sounds in tort . . . and this claim is therefore also subject to the one-year claim.
Plaintiffs argue that defendants' reliance on Gatto "is wholly unjustified, since that case dealt with an application of the Unruh Act, Civil Code § 51." Plaintiffs contend that "this is a case under the Bane Act, Civil Code § 52.1, and even a cursory reading of the Third Cause of Action demonstrates that it has nothing to do with any employment-type claims."
Plaintiffs have missed the point of the citation to Gatto. Gatto expressly holds that a claim for relief under Civil Code § 52.1 is treated like a claim under Section 1983 and, therefore, the statute of limitations applicable to a claim under Section 52.1 is California's statute of limitations for personal injury actions, now a two-year statute of limitations.
The Abbate Defendants do not articulate why they believe that the Third Cause of Action is time-barred, i.e., they do not discuss accrual of this cause of action. In their reply brief they erroneously contend that the applicable statute of limitations for a claim under Civil Code § 52.1 is one-year. However, Gatto makes clear that the applicable statute of limitations is now the two-year limitation period because of the change in California law. The Abbate Defendants' reply refers to the allegations in the Complaint concerning damages as a result of leaving her employment. The Third Cause of Action pertains solely to Tiffany's arrest and prosecution.
The Abbate Defendants further contend that her claim of false arrest in the Third Cause of Action is clearly time-barred because the Complaint alleges that Tiffany was arrested on August 7, 2003. As discussed above, the statute of limitations for a claim under Section 52.1 is two years, arguably making the claim in the Third Cause of Action based on false arrest in violation of the Fourth Amendment and the California Constitution untimely. Again, however, the Abbate Defendants do not discuss accrual. On the face of the Complaint, the Second Cause of Action is not time-barred. The motion to dismiss is DENIED on this ground.
c. Limitation to Conduct Arising Out of Furnishing Goods, Services or Facilities.
The Abbate Defendants seek dismissal of this cause of action, contending that Civil Code § 52.1 is limited to conduct arising out of the furnishing of goods, services or facilities to clients, patrons or customers and does not apply to employment discrimination. See Alcorn v. Anbro Engineering, Inc., 2 Cal.3d 493, 500 (1970).
The Third Cause of Action is not based on any allegations of employment discrimination. The Third Cause of Action alleges Tiffany's "rights not to have her liberty restricted without legal basis, to be arrested without probable cause, and to be prosecuted maliciously without probable cause" and that these defendants' "interference with these constitutional rights was accomplished by means of force, coercion, and intimidation, and/or the threat thereof." Furthermore, the Alcorn decision was brought pursuant to California Civil Code §§ 51 and 52, not Section 52.1. This ground for dismissal is without merit and the motion is DENIED.
d. Immunity Pursuant to California Civil Code § 47(b).
The Abbate Defendants move to dismiss the Third Cause of Action to the extent that this cause of action is based on their participation in the criminal prosecution of Tiffany, on the ground that dismissal is required because of the privilege set forth in California Civil Code § 47(b).
Section 47(b) bars a civil action for damages based on statements made in any judicial proceeding, in any official proceeding authorized by law, or in the initiation or course of any mandate-reviewable proceedings authorized by law. The litigation privilege provided in Section 47(b) applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. A.F. Brown Elec. Contractor, Inc. v. Rhino Elec., 137 Cal.App.4th 1118, 1126 (2006). Section 47(b) establishes an absolute privilege for such statements and bars all tort causes of action based on them except a cause of action for malicious prosecution. Hagberg v. California Federal Bank, 32 Cal.4th 350, 360 (2004). "'Section 47 gives all persons the right to report crimes to the police, the local prosecutor or an appropriate regulatory agency, even if the report is made in bad faith.'" Hagberg, id. at 365. "'[A] communication concerning possible wrongdoing, made to an official governmental agency such as a local police department, and which communication is designed to prompt action by that entity is as much a part of an "official proceeding" as a communication made after an official investigation has commenced . . . After all, '[t]he policy underlying the privilege is to assure utmost freedom of communication between citizens and public authorities whose responsibility it is to investigate and remedy wrongdoing.' . . . The importance of providing to citizens free and open access to governmental agencies for the reporting of suspected criminal activity outweighs the occasional harm that might befall a defamed individual. Thus the absolute privilege is essential."'" Id. at 364-365. Section 47(b)'s absolute privilege applies to "communications intended to instigate official investigation into [suspected] wrongdoing." Id. at 369. Statements made to prompt an official investigation that may result in the initiation of judicial proceedings also fall within the privilege set forth in Section 47(b). Id. at 361-36.
Plaintiffs concede that "their defamation, and, perhaps, some of their other state law claims arising from the defendants' wrongful acts may be subject to dismissal" because of Hagberg. However, plaintiffs argue, the absolute privilege set forth in Section 47(b) does not affect the validity of the Third Cause of Action to the extent that the Third Cause of Action is based on the violation of right protected by the United States Constitution. Plaintiffs contend that "a state law litigation privilege cannot dictate the scope of a federal constitutional right." In so arguing, plaintiffs refer to Felder v. Casey, 487 U.S. 131 (1988), wherein the Supreme Court held that Wisconsin's notice-of-claim statute was preempted with respect to any federal civil rights actions brought in state court. In so holding, the Supreme Court stated: "Under the Supremacy Clause of the Federal Constitution, '[t]he relative importance to the State of its own law is not material when there is a conflict with a valid federal law,' for 'any state law, however clearly within a State's acknowledged power, which interferes with or is contrary to federal law must yield." 487 U.S. at 138.
Plaintiffs' argument does not make that much sense given the absolute witness privilege recognized by the Supreme Court in Briscoe. In any event, the Third Cause of Action is based on a state, not federal, statute. Therefore, plaintiffs' contention is not supported by Felder.
The Third Cause of Action is DISMISSED WITH LEAVE TO AMEND as barred by Section 47(b) immunity.
4. Fourth Cause of Action for False Arrest.
The Abbate Defendants move to dismiss this cause of action for false arrest under California law on two grounds.
a. Statute of Limitations.
The Abbate Defendants move for dismissal on the ground that it is barred by the one-year statute of limitations set forth in California Code of Civil Procedure § 340(c) (providing a one-year limitation period for "false imprisonment"). Because the Complaint alleges that Tiffany was "booked . . . on August 7, 2003", the Abbate Defendants argue that this cause of action is time-barred.
In opposition, plaintiffs contend that the Fourth Cause of Action is not time-barred because the claim for false arrest does not accrue until she was acquitted of the criminal charges.
However, all of the cases cited by plaintiffs involve claims of malicious prosecution. In Mohlmann v. City of Burbank, 179 Cal.App.3d 1037, 1041 n. 1 (1986), it was stated:
A cause of action for false arrest accrues on the arrest and is actionable immediately. There is no requirement that the arrestee allege favorable termination of the criminal proceedings ( Collins v. Owens (1947) 77 Cal.App.2d 713, 716) . . . Cf. malicious prosecution on account of criminal matters which requires the plaintiff to allege as well as prove that the criminal proceedings ended in acquittal or dismissal for lack of evidence. ( Jaffe v. Stone, (1941) 18 Cal.2d 146. . . .)
Therefore, the Fourth Cause of Action is time-barred to the extent that it alleges false arrest under California common law. This claim is DISMISSED WITH LEAVE TO AMEND.
b. Lack of Factual Allegations.
The Abbate Defendants also move for dismissal on the ground that there are no allegations in the Complaint that the Abbate Defendants actually arrested Tiffany or had any personal involvement in her arrest.
Because plaintiffs are given leave to amend the allegations of joint action and/or conspiracy, dismissal of the Fourth Cause of Action also is GRANTED WITH LEAVE TO AMEND.
5. Fifth Cause of Action for Malicious Prosecution.
The Abbate Defendants move to dismiss the Fifth Cause of Action for malicious prosecution on the ground that the District Attorneys Office conducted an independent investigation of the Abbate Defendants' charges, which the Abbate Defendants contend is an intervening act that cuts off any liability on their part for malicious prosecution. The Abbate Defendants refer to cases holding that independent investigations leading to the bringing of charges by the California State Bar or the Board of Medical Quality Assurance negates a claim of malicious prosecution against the person who made the complaint to the State Bar or Board of Medical Quality Assurance. See Hogan v. Valley Hospital, 147 Cal.App.3d 119, 124-125 (1983); Stanwhck v. Horne, 146 Cal.App.3d 450, 462 (1983). The Abbate Defendants contend that "on its face, the complaint alleges substantial intervening acts by the very law enforcement authority charged with investigating and prosecuting crimes and their retained experts, the Cassabon defendants."
Plaintiffs respond that a fair reading of the allegations of the Complaint demonstrates that plaintiffs are alleging that "an unseemly alliance at all times existed between the various camps of defendants." Plaintiffs refer to Sheldon Appel Co. v. Albert Oliker, 47 Cal.3d 863, 871 (1989):
Under the governing authorities, in order to establish a cause of action for malicious prosecution of either a criminal or civil proceding, a plaintiff must demonstrate 'that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff's favor . . .; (2) was brought without probable cause . . .; and (3) was initiated with malice. . . .'
Plaintiffs argue that the allegations of the Complaint satisfy these requirements for purposes of the motion to dismiss.
Plaintiffs also refer to Awabdy v. City of Adelanto, 368 F.3d 1062, 1067 (9th Cir. 2004), wherein the Ninth Circuit, addressing a claim of malicious prosecution in violation of Section 1983, held:
Ordinarily, the decision to file a criminal complaint is presumed to result from an independent determination on the part of the prosecutor, and, thus, precludes liability for those who participated in the investigation or filed a report that resulted in the initiation of proceedings . . . However, the presumption of prosecutorial independence does not bar a subsequent § 1983 claim against state or local officials who improperly exerted pressure on the prosecutor, knowingly provided misinformation to him, concealed exculpatory evidence, or otherwise engaged in wrongful or bad faith conduct that was actively instrumental in causing the initiation of legal proceedings.
The allegations of the Complaint do not conclusively establish as a matter of law that an intervening independent investigation negates this cause of action against the Abbate Defendants and the motion to dismiss is DENIED.
6. Sixth Cause of Action for Negligence.
The Sixth Cause of Action for negligence alleges that the Abbate Defendants "had a duty to engage in the reasonable reporting of suspected crimes, avoiding false reports of crimes. . . ."
a. Privilege.
The Abbate Defendants argue that this cause of action fails in the face of the absolute immunity set forth in Civil Code § 47(b). See discussion supra.
Plaintiffs respond that the Abbate Defendants "seek to rewrite the plaintiffs' Complaint to suit their legal arguments" and that "[n]o legal authority has been offered in support of this argument. . . ."
However, as discussed above, Hagberg appears to extend the absolute privilege set forth in Civil Code § 47(b) to the reporting of criminal conduct "even if the report is made in bad faith."
Therefore, dismissal is GRANTED WITH LEAVE TO AMEND.
b. Standing of Plaintiffs Virgil and Debra Fenters.
The only claim asserted by plaintiffs Virgil and Debra Fenters is the Sixth Cause of Action for negligence.
The Abbate Defendants move to dismiss their claim on the ground that the Abbate Defendants had no duty as a matter of law running to the Fenters and, therefore, the Fenters have no "standing" to bring this claim.
Plaintiffs admitted at the hearing that Tiffany was not a minor at the time of her arrest and prosecution. Plaintiffs represent that the Abbate Defendants knew that Tiffany lived with her parents and was still their dependant and request leave to amend to so allege.
The Sixth Cause of Action is DISMISSED WITH LEAVE TO AMEND.
7. Seventh Cause of Action for Intentional Infliction of Emotional Distress.
The Abbate Defendants, noting that the Seventh Cause of Action alleges that their actions "resulted in Tiffany being "wrongfully detained, arrested and prosecuted without probable cause or other legal basis . . . and . . . were done in disregard of the probability of their causing plaintiff emotional distress", move for dismissal of this cause of action on the ground that the alleged acts of misconduct "fails to allege claims upon which relief may be granted", that the false arrest claim is time-barred, and that the Abbate Defendants "cannot be held liable for the subsequent prosecution since they are protected by the application of he [sic] federal absolute witness immunity and the state immunity conferred by Civil Code section 47(b)."
Plaintiffs admit that the Seventh Cause of Action is probably redundant as emotional distress damages are included within Section 1983 relief. The motion to dismiss is GRANTED WITH LEAVE TO AMEND to amplify extreme and outrageous conduct.
8. Eighth Cause of Action for Negligent Infliction of Emotional Distress.
Citing Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., 48 Cal.3d 583, 588 (1989) that negligent infliction of emotional distress is not an independent tort but the tort of negligence, the Abbate Defendants argue that this cause of action should be dismissed.
Plaintiffs conceded dismissal of this cause of action at the hearing. Therefore, the Eighth Cause of Action is DISMISSED WITH PREJUDICE.
9. Ninth Cause of Action for Violation of 29 U.S.C. § 201 et seq.
The Abbate Defendants, contending that the Fair Labor Standards Act of 1938 occupies more that two volumes of the United States Code, argues that this cause of action requires them to speculate as to the legal basis upon which Tiffany relies in claiming liability. The Abbate Defendants assert that Tiffany should be ordered to specify what sections of the Fair Labor Standards Act of 1938 she is relying upon in support of the Ninth Cause of Action.
The conduct alleged by Tiffany as violating the Fair Labor Standards Act of 1938 is clearly alleged. The motion to dismiss is DENIED.
10. Tenth Cause of Action for Violation of 29 U.S.C. §§ 215 and 216.
The Abbate Defendants move to dismiss this cause of action on two grounds.
a. Failure to Allege Interstate Commerce.
The Abbate Defendants move to dismiss this cause of action on the ground that Tiffany has not alleged she was engaged in interstate commerce while she was employed by Yosemite Chevron and, therefore, the Fair Labor Standards Act has no application to the "instant dispute".
Plaintiffs respond by noting that the Abbate Defendants "do not cite a single case requiring that the interstate commerce requirement must be specifically pleaded, as opposed to merely invoking the statute and its language, consistent with FRCP 8." A claim must allege each element. The Tenth Cause of Action is DISMISSED WITH LEAVE TO AMEND.
b. No Private Right of Action.
The Abbate Defendants, referring to 29 U.S.C. § 215(a)(3), making it unlawful "to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter . . .", move to dismiss the Tenth Cause of Action on the ground that Section 215(a)(3) does not provide a private right of action.
No authority for this proposition is cited by the Abbate Defendants.
29 U.S.C. § 216(b) provides in pertinent part:
. . . Any employer who violates the provisions of section 215(a)(3) of this title shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of section 215(a)(3) of this title, including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional amount as liquidated damages. An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer . . . in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought . . . The right provided by this subsection to bring an action by or on behalf of any employee, and the right of any employee to become a party plaintiff to any such action, shall terminate upon the filing of a complaint by the Secretary of Labor in an action under Section 217 of this title. . . .See also Bailey v. Gulf Coast Transp., Inc., 280 F.3d 1333, 1335 (11th Cir. 2002) ("The plain language of § 216(b), which provides a private right of action to employees to seek legal or equitable relief for an employer's violation of the antiretaliation provision, mandates that [an employee may obtain injunctive relief for violations of the FLSA's antiretaliation provision].")
Therefore, the contention that Tiffany has no private right of action is without without merit and the motion to dismiss is DENIED.
c. Failure to Allege Reporting to Appropriate Authorities.
The Abbate Defendants further move for dismissal of the Tenth Cause of Action on the ground that the Complaint does not allege that Tiffany reported the Abbate Defendants for the alleged retaliation "because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter . . ." The Abbate Defendants assert that Tiffany "did not file an EEOC or DEFH complaint, nor did she file a complaint with the State Labor Board Commission."
This ground for dismissal is without merit. Lambert v. Ackerley, 180 F.3d 997, 1002-1008 (9th Cir. 1999), cert. denied, 528 U.S. 1116 (2000), rejected the position that the antiretaliation provision of Section 215(a)(3) extends only to those employees who filed formal proceedings with the Department of Labor, holding that "§ 215(a)(3) protects from retaliation employees who complain to their employer about alleged violations of the Act." Therefore, dismissal of the Tenth Cause of Action on this ground is DENIED.
11. Eleventh Cause of Action for Violation of California Labor Code §§ 98.6, 232.5, and 1102.5.
The Abbate Defendants move to dismiss any claim for relief under these provisions on the grounds that the Complaint does not allege that Tiffany ever made a claim to any governmental body regarding the working conditions at Yosemite Chevron, that she was discharged or discriminated against because she made such a complaint pursuant to Labor Code § 98.6 and that Labor Code § 232.5 does not confer a private right of action on an aggrieved employee.
The Abbate Defendants also argue that Labor Code § 1102.5 does not provide a private right of action except to corporations and limited liability companies. The Abbate Defendants have misread Section 1102.5(f). Section 1102.5(f) does not provide a private right of action but rather, imposes additional penalties for violation of the described provisions on corporations and limited liability companies. Therefore, this ground for dismissal is without merit.
Plaintiffs merely respond that defendants "do not cite any cases indicating that plaintiffs' California Labor Code claims have to be specifically pleaded."
Labor Code § 98.6 provides in pertinent part:
(a) No person shall discharge an employee or in any manner discriminate against any employee . . . because the employee . . . has filed a bona fide complaint or claim or caused to be instituted any proceeding under or relating to his or her rights, which are under the jurisdiction of the Labor Commissioner, or because the employee has initiated any action or notice pursuant to Section 2699, or has testified or is about to testify in any such proceeding or because of the exercise by the employee . . . on behalf of himself, herself, or others of any rights afforded him or her.
(b) Any employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated against in the terms and conditions of his or her employment . . . because the employee has made a bona fide complaint or claim to the division pursuant to this part, or because the employee has initiated any action or notice pursuant to Section 2699 shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by those actions of the employer. . . . .
Labor Code § 232.5 provides in pertinent part:
No employer may do any of the following:
(a) Require, as a condition of employment, that an employee refrain from disclosing information about the employer's working conditions.
(b) Require an employee to sign a waiver or other document that purports to deny the employee the right to disclose information about the employer's working conditions.
(c) Discharge, formally discipline, or otherwise discriminate against an employee who discloses information about the employer's working conditions.
Labor Code § 1102.5 provides in pertinent part:
(a) An employer may not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a govenment or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with state or federal rule or regulation.
(b) An employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.
(c) An employer may not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.
(d) An employer may not retaliate against an employee for having exercised his or her rights under subdivision (a), (b), or (c) in any former employment.
. . .
(f) In addition to other penalties, an employer that is a corporation or limited liability company is liable for a civil penalty not exceeding ten thousand dollars ($10,000) for each violation of this section.
In Neveu v. City of Fresno, 392 F.Supp.2d 1159 (E.D.Cal. 2000), defendants' argument that a federal court lacks jurisdiction to hear a plaintiff's claim for violation of Labor Code § 1102.5 because, pursuant to Labor Code §§ 98.6 and 98.7, claims under Section 1102.5 are solely with the province of the Labor Commissioner was sustained:
Cal. Labor Code § 98.7 provides that '[a]ny person who believes that he or she has been discharged or otherwise discriminated against in violation of any law under the jurisdiction of the Labor Commissioner may file a complaint with the division within six months after the occurrence of the violation.' Cal. Labor Code § 98.6(a) describes claims brought pursuant to various sections of the labor code, including § 1102.5, as brought 'under the jurisdiction of the labor Commissioner [sic].' Neither of the provisions Defendants cite provides that exclusive jurisdiction over § 1102.5 claimslies with the Labor Commissioner. Defendants argue that Plaintiff cites no cases allowing a court to hear a claim under § 1102.5. Defendants also cite no cases holding that the Labor Commissioner has exclusive jurisdiction over § 1102.5 claims and that a court is not allowed to hear a § 1102.5 claim.
The California Supreme Court has recently held that a litigant seeking damages under § 1102.5 is required to exhaust administrative remedies before the Labor Commissioner prior to bringing suit. Campbell v. Regents of the Univ. of Cal., 35 Cal.4th 311, 333-4 . . . (2005) ('We conclude that absent a clear indication of legislative intent, we should refrain from inferring a statutory exemption from our settled rule requiring exhaustion of administrative remedies.'). The exhaustion of administrative remedies rule is 'well established in California jurisprudence.' Id. at 321 . . . '"[T]he rules is that where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act."' Id. . . . 'Exhaustion of administrative remedies is a jurisdictional prerequisite to resort to the courts.' Id.. . . . Plaintiff does not allege that he exhausted available administrative remedies, including bringing a complaint before the Labor Commissioner, before bringing suit.
Defendants' Motion to Dismiss Plaintiff's claim under Cal. Labor Code § 1102.5 is GRANTED on the grounds that there is no jurisdiction.392 F.Supp.2d at 1180.
Campbell and Neveu support the grounds for dismissal of the Eleventh Cause of Action argued by the Abbate Defendants, albeit on a slightly different basis. Although no case could be located discussing the existence of a private right of action under Labor Code §§ 98.6 and 1102.5, the requirement of exhaustion of administrative remedies implies that such a right exists. However, as argued by the Abbate Defendants, the Complaint does not allege that Tiffany made any complaint to the Labor Commissioner. Plaintiffs admitted at the hearing that no such complaint has been made.
Therefore, the Eleventh Cause of Action is DISMISSED WITH PREJUDICE.
12. Thirteenth Cause of Action for Quantum Meruit.
The Abbate Defendants move to dismiss the Thirteenth Cause of Action as barred by the two-year statute of limitations set forth in California Code of Civil Procedure § 339 applicable to claims of quantum meruit. See Iverson, Yoakum, Papiano Hatch v. Berwald, 76 Cal.App.4th 990, 996 (1990), citing Parker v. Solomon, 171 Cal.App.2d 125, 134 (1959). Because the Complaint alleges that Tiffany left her employment with Yosemite Chevron on March 23, 2003, the Abbate Defendants contend that she had until March 23, 2005 to bring a claim for overtime and other compensation in quantum meruit. The claim is time-barred.
The Thirteenth Cause of Action is DISMISSED WITH PREJUDICE.
13. Fourteenth Cause of Action for Defamation.
The Abbate Defendants move to dismiss this cause of action on the grounds that it is barred by the absolute litigation privilege set forth in California Civil Code § 47(b) and that the cause of action is barred by the one-year statute of limitations set forth in California Code of Civil Procedure § 340(c).
As discussed supra in connection with the Third Cause of Action, plaintiffs concede that "their defamation, and, perhaps, some of their other state law claims arising from the defendants' wrongful acts may be subject to dismissal" because of Hagberg. Plaintiffs do not respond to the contention that the Fourteenth Cause of Action is time-barred.
The Fourteenth Cause of Action is DISMISSED WITH PREJUDICE.
D. Motion to Dismiss by the Cassabon Defendants.
The Cassabon Defendants move to dismiss the causes of action alleged against them for failure to state a claim upon which relief can be granted.
Plaintiffs' entire opposition to this motion to dismiss is as follows: "The Cassabon Defendants do not raise any claims not addressed herein above, and plaintiffs request and fully expect that the Court will rule likewise on those claims as to all parties."
1. Absolute Litigation Privilege Bars Fourth, Sixth, Seventh, Eighth and Fourteenth Causes of Action.
The Cassabon Defendants move to dismiss the Fourth Cause of Action for false arrest, the Sixth Cause of Action for negligence, the Seventh Cause of Action for intentional inflication of emotional distress, the Eighth Cause of Action for negligent infliction of emotional distress, and the Fourteenth Cause of Action for defamation on the ground that plaintiffs are precluded from bringing these causes of action because of the absolute litigation privilege set forth in California Civil Code § 47(b). See discussion supra. This privilege applies to communications of experts retained by a party to the litigation. See Carden v. Getzoff, 190 Cal.App.3d 907, 913-914 (1987); ITT Telecom Products Corp. v. Dooley, 214 Cal.App.3d 307, 316-317 (1989).
As noted, plaintiffs conceded in their opposition to the Abbate Defendants' motion to dismiss that "their defamation, and, perhaps, some of their other state law claims arising from the defendants' wrongful acts may be subject to dismissal".
All of the causes of action described in this section of the Cassabon Defendants' motion to dismiss are dismissed because of the absolute litigation privilege. The only allegation against the Cassabon Defendants is set forth in paragraph 29:
The false and baseless allegations of embezzlement against Tiffany were supported by the accountant firm retained on behalf of the prosecution, Cassabon, and the accountants from Cassabon specifically assisting the prosecution, Fung and McIlhatton. These defendants disregarded all of the above-outlined facts showing the embezzlement allegations to be baselenss and incredible, as well as the professional standards that are supposed to be followed by accountants engaged to provide litigation services. As a result, these defendants produced misleading, result-oriented reports that served to add a false air of legitimacy to the embezzlement allegations.
These allegations demonstrate that the Cassabon Defendants are entitled to the absolute litigation privilege of Section 47(b) as interpreted and applied under California law.
The Fourth, Sixth, Seventh, Eighth and Fourteenth Causes of Action are DISMISSED WITH PREJUDICE. 2. First Cause of Action for Violation of 42 U.S.C. § 1983.
Because of this ruling, it is not necessary to address the alternative grounds for dismissal of the Sixth, Seventh and Eighth Causes of Action and for dismissal of plaintiffs Virgil and Debra Fenters asserted by the Cassabon Defendants.
The Cassabon Defendants move for dismissal of this cause of action on the basis of the absolute witness immunity set forth in Briscoe v. LaHue, supra, 460 U.S. at 326, and in Franklin v. Terr, supra, 201 F.3d at 1101-1102. See discussion supra.
The Cassabon Defendants are entitled to absolute witness immunity to the extent that they testified at Tiffany's trial.
The Cassabon Defendants further argue that they are entitled to absolute immunity from claims that they misinterpreted evidence and prepared reports for use in the prosecution. In so arguing, defendants refer to Gray v. Poole, 275 F.3d 1113 (D.C. Cir. 2002).
In Gray, a social worker submitted a statement to the court in connection with a child neglect action. The District of Columbia Circuit held that Poole was entitled to absolute witness immunity, concluding that "[i]t does not matter whether Poole's sworn statement was given in oral or written form; what matters is that her statement was the equivalent of sworn testimony in a judicial proceeding." 275 F.3d at 1118.
These defendants also refer to Morstad v. Dept. of Corrections Rehab., 147 F.3d 741, 744 (8th Cir. 1998) ("Because the court directed Veenstra to evaluate Morstad and to testify at Morstad's probation revocation hearing, we conclude that Veenstra was performing functions essential to the judicial process . . . and affirm the district court's determination that Veenstra was entitled to absolute immunity.") and to Buckley v. Fitzsimmons, 919 F.2d 1230 (7th Cir. 1990), reversed on other grounds, 509 U.S. 259 (1993). In Buckley, the Seventh Circuit addressed whether three expert witnesses had absolute immunity for their pretrial activities of evaluating the bootprint, writing reports, discussing the case with prosecutors, and preparing to testify. 509 U.S. at 1244-1245. The Seventh Circuit held:
. . . We agree with the district court that they do. Briscoe holds that the presentation of testimony may not be the basis of liability, even if the witness deliberately misleads the court. It would be a hollow immunity if the aggrieved party could turn around and say, in effect: 'True, you delivery of bad testimony is immunized, but preparing to deliver that testimony is not, so I can litigate the substance of your testimony.' Substance is exactly what Briscoe puts off limits.
As expert could violate a suspect's rights independently of the litigation. The expert might, for example, break into the suspect's home to obtain samples for analysis. Absolute immunity would not apply to that theft, for the same reason it does not apply to prosecutorial infliction of punishment without trial. A non-testimonial expert could violate a suspect's rights by 'cooking' a laboratory report in a way that misleads the testimonial experts. Experts, like the police, 'cannot hide behind [the immunity of] the officials whom they have defrauded.' . . . But nothing in the complaint suggests that the three experts hid evidence, as opposing to misinterpreting.
Discussions between the prosecutors and the experts violated none of Buckley's rights. Preparing to commit slander or perjury is not actionable. The testimony itself is covered by immunity. Buckley makes it clear that the testimony is the real gravamen of his complaint. Olsen, he submits, 'wrongfully changed his initial opinion'; Robbins was an 'utterly disreputable witness-for-hire.' Maybe so, but cross-examination rather than a suit for damages is the right way to establish these things. Junk science is a plague of contemporary litigation, but the peddlers of poorly supported theories do not expose themselves to liability by doing research out of court or appearing in more than one case.
White v. Frank, 855 F.2d 956 (2nd Cir. 1988) holds that Briscoe does not apply to 'complaining witnesses'. Buckley contends that the three experts are in this category, because but for their opinions the State's Attorney would not have obtained an indictment. The parallel is not apt. None of the experts invented the report of a crime or brought the fable to the state's attention. Jeanine Nicarico is dead. Each expert was brought into the case by the prosecutors, who sought to evaluate the strength of the evidence against Buckley. We therefore need not decide whether to follow White.919 F.2d at 1245.
The allegations in paragraph 29 fit with the holding of the Seventh Circuit in Buckley. There is no allegation in the Complaint against the Cassabon Defendants or any other defendants that they fabricated evidence or conspired to do so. Absent such allegations against the Cassabon Defendants, they are entitled to absolure witness immunity.
The First Cause of Action is DISMISSED WITH LEAVE TO AMEND.
3. Second Cause of Action for Declaratory Relief.
The Cassabon Defendants move to dismiss this cause of action on the same basis as the County Defendants and the Abbate Defendants. See discussion supra. For the reasons set forth above, the Second Cause of Action is DISMISSED WITH LEAVE TO AMEND. 4. Third Cause of Action for Violation of Civil Code § 52.1.
Because of the rulings in this Order, the Cassabon Defendants' motion for more definite statement is denied as unnecessary.
The Cassabon Defendants move to dismiss this cause of action on two grounds.
a. Availability of Damages.
The Third Cause of Action alleges that Tiffany is entitled to actual damages and to "an award of as much as three times that amount."
The Cassabon Defendants move for dismissal on the ground that damages are not an available remedy under Civil Code § 52.1. In so moving, they refer to cases holding that there is no cause of action for damages under Article I of the California Constitution (due process and equal protection and free speech) in the absence of a statutory provision or an established common law tort authorizing such a damage remedy for the constitutional violation. See Katzberg v. Regents of Univ. of Cal., 29 Cal.4th 300, 307 (2002); Degrassi v. Cook, 29 Cal.4th 333 (2002); Ley v. State of California, 114 Cal.App.4th 1287, 1306-1307 (2004). The Cassabon Defendants assert that plaintiffs cannot use Civil Code § 52.1 "to circumvent the law that no damages can be assessed for a violation of Article I of the California Constitution."
Defendants' position is without merit. The cases upon which they rely do not involve a claim for damages under the Civil Code but rather, a claim for damages directly under the California Constitution. Dismissal on this ground for dismissal is DENIED.
b. Speech.
The Cassabon Defendants move for dismissal of the Third Cause of Action, referring to Civil Code § 52.1(j):
Speech alone is not sufficient to support an action brought pursuant to subdivision (a) or (b), except upon a showing that the speech itself threatens violence against a specific person or group of persons; and the person or group of persons against whom the threat is directed reasonably fears that, because of the speech, violence will be committed against them or their property and that the person threatening violence has the apparent ability to carry out the threat.
The Cassabon Defendants contend that "Plaintiffs claim that the Cassabon Defendants speech caused the violation."
Because leave to amend is granted with respect to plaintiffs' claims of joint action and/or conspiracy, dismissal on this ground is DENIED WITHOUT PREJUDICE to its renewal following the filing of the First Amended Complaint.
5. Fifth Cause of Action for Malicious Prosecution.
The Cassabon Defendants move for dismissal of this cause of action on the ground that one of the elements of a cause of action for malicious prosecution is that the prior action "was commenced by or at the direction of the defendant." Sheldon Appel Co. v. Albert Oliker, supra, 47 Cal.3d at 871. the Cassabon Defendants contend:
Plaintiffs have not alleged, nor could they in good faith allege, that the Cassabon Defendants commenced the prior criminal action or directed the underlying action be filed. To the contrary, Plaintiffs allege that the Cassabon Defendants were retained after Ms. Fenters was charged with embezzlement on June 23, 2003.
At the hearing, plaintiffs stated that the cause of action against the Cassabon Defendants is based on the theory described in Jacques Interiors v. Petrak, 188 Cal.App.3d 1363 (1987).
Petrak involved an action for malicious prosecution against an insurance adjuster (Petrak) by a commercial tenant (Jacques) sued for subrogation by the insurer of the building (Sentry), who as also Petrak's employer, after the building was damaged by fire. In rejecting Petrak's argument that he could not be liable for malicious prosecution because the suit was filed after Sentry's attorney, McCaskey, had conducted his own investigation, the Court of Appeal noted:
'One may be civilly liable for malicious prosecution without personally signing the complaint initiating the . . . proceeding. If a person, without probable cause and with malice, instigates or procures the [action], he is liable.' . . . '"[I]t is enough if [the defendant] was instrumental in setting the law in motion and caused the [action] to proceed.". . .' . . . '[T]he test of liability in an action for malicious prosecution is: Was defendant actively instrumental . . . [or] the proximate and efficient cause of maliciously putting the law in motion[?]. . . .188 Cal.App.3d at 1371-1372. See also Lujan v. Gordon, 70 Cal.App.3d 260, 264 (1977) ("There does not appear to be any good reason not to impose liability upon a person who inflicts harm by aiding or abetting a malicious prosecution which someone else has prosecuted."); Zamos v. Stroud, 32 Cal.4th 958 (2004) (attorney may be held liable for malicious prosecution for continuing to prosecute a lawsuit discovered to lack probable cause).
Because plaintiffs did not cite Petrak until the hearing and because the allegations supporting the claimed joint action and/or conspiracy will be amended, dismissal is GRANTED WITH LEAVE TO AMEND.
In granting leave to amend, no opinion is expressed about the viability of plaintiffs' theory of relief against the Cassabon Defendants.
ACCORDINGLY, as set forth above:
1. The motion to dismiss filed by the County of Merced, Gordon Spencer, Marc Bacciarini, and Merle Wayne Hutton is GRANTED IN PART AND DENIED IN PART;
2. The motion to dismiss filed by Abbco Investments, LLC dba Yosemite Chevron, Robert Abbate, James Abbate and John Abbate is GRANTED IN PART AND DENIED IN PART;
3. The motion to dismiss filed by Victor Fung, Erin McIlhatton, and Cassabon Associates, LLP is GRANTED IN PART AND DENIED IN PART;
4. Plaintiffs shall file a First Amended Complaint in accordance with the rulings made herein within 20 days of service of this Order. Defendants shall respond within 20 days thereafter.