DALE A. DROZD, District Judge.
This action was originally filed in the Merced County Superior Court on November 19, 2015, and was removed to this court on January 28, 2016 by defendants. (Doc. No. 1.)
Plaintiff's wide-ranging complaint concerns his arrest and subsequent criminal charges brought against him stemming from the murder of three people in a gang-related gun battle at a party in Atwater, California on March 30, 2013. In his complaint, plaintiff alleges as follows.
Plaintiff briefly attended the party with other individuals. As plaintiff and his friends were leaving, a group of gang members (apparent rivals of gang members at the party) arrived and began firing weapons. Plaintiff and his group were driving away from the scene as the gunshots began. Two individuals—Matthew Fisher and Samantha Pereira—were killed in the backyard of the house where the party was being held, while another—Bernabed Hernandez Canela—was killed on a street just to the west of that house.
One of the individuals in plaintiff's car that evening, Jacob Tellez, was arrested for the murder of Hernandez approximately two weeks later. He had inadvertently called 911 while the group was fleeing the party. The 911 call featured an animated Tellez talking about the shooting. However, the audio recording of the call was muffled and the exact words spoken were unclear. When interviewed by a Merced County Sheriff's detective shortly after the shooting, Tellez admitted being at the party and possessing a .22 caliber revolver. Tellez told police he tried to pull the gun out when the shooting started, but it caught on the seatbelt in plaintiff's car and another occupant of the car—Andrew Massengale—grabbed his arm and told him not to pull the gun out. Tellez also told police he saw someone lying on the side of the road and it looked like a piece of the person's hair or head was on the ground. Following his interview of Tellez the detective again listened to the 911 call recording. Determining Tellez's account in his interview was consistent with what could be deciphered from his 911 call, the detective released Tellez and requested the warrant for his arrest be recalled.
Subsequently, defendant detectives Hale, Sanchez, and Macias were assigned to conduct the criminal investigation. In January 2014, plaintiff's father, Larry Morse—the elected district attorney of Merced County—publicly complained that the Merced County Sheriff's Department was not putting sufficient resources into investigating gang violence, including the unsolved Atwater killings. In July 2014, defendants Hale, Sanchez, and Macias reopened the investigation after having done no significant work on the case since May 2013. They made Tellez the target of the investigation into the murder of Hernandez, despite having no additional evidence linking Tellez to the killing other than his 911 call.
Tellez was rearrested on July 17, 2014 and the police held a press conference to announce the arrest. This time Tellez was interviewed by defendant Sanchez and repeated essentially the same version he had given the first detective to interview him, while adding information about an individual Tellez said he saw shooting at Hernandez. Still, the only evidence regarding Tellez was his own 911 call on the night of the killing.
After the police press conference, plaintiff advised his father that he too was at the party with Tellez, was driving and that Tellez had not fired a gun from plaintiff's car. District Attorney Morse promptly contacted defendant Hale to advise there was a problem with Tellez's arrest. District Attorney Morse then arranged for his son to meet with the investigators.
Defendants Macias and Hale interviewed plaintiff on July 20, 2014. Plaintiff corroborated Tellez's account, stating the group of friends had been at the scene only briefly, were leaving as shots broke out, that Tellez had a .22 caliber gun, that Massengale told Tellez not to shoot it and that no shots were fired from plaintiff's car. The defendants subsequently interviewed all the witnesses in the car, with the exception of Massengale, whose father would not permit him to speak with police without an attorney. Defendants implied during their interviews of the other witnesses that they would be charged with a crime if they failed to align their stories with the defendants' theory of the case.
Other witnesses, including Jacob Delgadillo and Tony Gomes, told police that Tellez did not fire a gun. Nevertheless, defendant Macias instead wrote in his report that Delgadillo told him Tellez had pointed a gun out of the window of the car. Gomes had actually identified two other shooters, including one who was previously identified by Tellez, who he had seen shooting in the direction of Hernandez. Macias's report of the interview contains no mention of these individuals, and no further investigation into these potential suspects was conducted by authorities.
In his affidavit supporting the warrant for Tellez's second arrest, defendant Macias falsely stated that Tellez incriminated himself by suggesting on the 911 call that he had shot Hernandez. Macias also misrepresented the statements of a number of witnesses, including by suggesting that Ceccolli told him she heard gunshots that sounded as if they were coming from plaintiff's car. Defendant Macias did not advise the reviewing judge of the numerous statements exonerating Tellez from involvement in the shooting, nor did he advise the judge that although Tellez possessed a .22 caliber revolver on the night in question, Hernandez was known by police to have been shot with .38 and .25 caliber bullets which could not have been fired from Tellez's gun.
The California Attorney General's Office took over prosecution of the case from District Attorney Morse on July 23, 2014, because of the involvement of plaintiff, District Attorney Morse's son. Plaintiff was arrested by deputies on July 25, 2014 as an accessory to murder. A former sheriff called District Attorney Morse the Sunday after his son's arrest and suggested that he apologize to the Sheriff's Department when he next addressed the public. The Attorney General's Office charged plaintiff with Hernandez's murder along with various gang enhancements on July 29, 2014. The Deputy Attorney General in charge of the case did not conduct any independent review of the evidence prior to charging plaintiff with the murder, nor did the defendant detectives disclose the exculpatory evidence—such as the names of the shooters identified by the witnesses—to the new prosecutor.
In November 2014, a confidential informant came to the Merced Police Department to discuss the triple murder. He advised Police Detective Paul Johnson he knew that the two gang members identified by Gomes had shot Hernandez because one of them confessed to him. When Police Detective Johnson attempted to convey this information to defendant Sheriff's Supervising Detective Hale, Johnson was rebuffed, and no further investigation was conducted by the Merced County Sherriff's Department.
From November 10, 2014 to November 14, 2014, a preliminary hearing was held in the prosecution of plaintiff and Tellez, at which testimony from Massengale was introduced. At the close of that preliminary hearing the presiding judge declined to hold either Tellez or plaintiff to answer and found that both were factually innocent. The judge also noted that the 911 call did not contain any admission by Tellez that he shot anyone. Further, the judge found he could not hear the words defendant Macias had represented were heard on the call, and also observed that many of the allegedly incriminating details came from defendants' questions, not from the answers given by the various witnesses in response to those questions.
As he was leaving the courthouse following the preliminary hearing, a sheriff's deputy was heard to exclaim, "This is bullshit, I know this guy did it." Subsequently, a social media blogger for the local newspaper attributed statements to a sheriff's department source to the effect that plaintiff "had gotten away with murder." Plaintiff believes defendants continue to defame him by accusing him of being an accomplice to murder.
As a result of the actions of the Merced County Sheriff's Department, plaintiff spent a number of months in the county jail, missing his first semester at college in Arkansas where he was slated to go on a wrestling scholarship. Because he could not attend the first semester of college, plaintiff lost his scholarship, and ultimately returned to Merced, where he now lives in fear of retaliation because the publicity surrounding the case led gang members to believe that he was, in fact, involved in the killing. Plaintiff suffers from severe emotional distress as a result of his wrongful arrest and detention. He further alleges that neither of the two gang members identified by the various sources as the shooters of Hernandez were ever arrested or investigated further by the Merced County Sheriff's Department.
Based on these allegations, plaintiff brings causes of action under 42 U.S.C. § 1983 alleging Fourth Amendment claims against defendants Hale, Macias, and Sanchez for unlawful searches and seizures, malicious prosecution, and the failure to advise him and others of exculpatory evidence. The last of these claims is also alleged to be a violation of plaintiff's Fourteenth Amendment due process rights. Plaintiff also alleges both the individual and county defendants violated California Civil Code § 52.1, also known as the "Bane Act," by instituting a malicious prosecution against him. In connection with this claim plaintiff asserts that defendant Merced County and Merced County Sheriff Tom Cavallero
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed factual allegations, "it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678. A pleading is insufficient if it offers mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555. See also Iqbal, 556 U.S. at 676 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."). Moreover, it is inappropriate to assume that the plaintiff "can prove facts which it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).
In ruling on a motion to dismiss brought pursuant to Rule 12(b)(6), the court is permitted to consider material which is properly submitted as part of the complaint, documents that are not physically attached to the complaint if their authenticity is not contested and the plaintiff's complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).
Defendants seek dismissal of many of plaintiff's causes of action on the following grounds:
Each of defendants' arguments is addressed in turn below.
Defendants claim punitive damages may not be awarded against Merced County pursuant to California Government Code § 818.
Cal. Gov. Code § 818. Counties and sheriffs' departments in California are generally considered public entities. See Zelig v. County of Los Angeles, 27 Cal.4th 1112, 1127-28 (2002). In his opposition to the pending motion, plaintiff states he intends to seek punitive damages only against the individual defendants. Accordingly, punitive damages are neither available nor being sought against Merced County or the Merced County Sheriff's Department to the extent plaintiff is attempting to name the latter as a separate defendant.
According to defendants, because the complaint often refers to "defendants" collectively, it fails to state a claim (apparently any claim) because there is insufficient factual specificity as to which defendant plaintiff is alleging did what. As a result, defendants contend, the complaint "does not provide notice to any defendant of the specific conduct upon which plaintiff bases his claims as it pertains to each stated claim." (Doc. No. 6 at 7.) Plaintiff responds that he has met the pleading requirements under Rule 8, and has pled numerous facts against the individual defendants which put defendants on notice of the conduct on which plaintiff's complaint is based.
The notice pleading standard in federal court is set out in Rule 8, and requires a pleading contain a jurisdictional statement, "a short and plain statement of the claim showing that the pleader is entitled to relief" and a demand for the relief sought. Fed. R. Civ. P. 8(a). "No technical form is required." Fed. R. Civ. P. 8(d)(1). Further, the "[p]leadings must be construed so as to do justice." Fed. R. Civ. P. 8(e). A plaintiff is only required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The point of the liberal notice pleading system is "to focus litigation on the merits of a claim." Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 514 (2002). "Notice pleading requires the plaintiff to set forth in his complaint claims for relief, not causes of action, statutes or legal theories." Alvarez v. Hill, 518 F.3d 1152, 1157 (9th Cir. 2008). "Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory." Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008).
In his complaint plaintiff has alleged numerous, detailed facts in support of his contention that the individual defendants manipulated witnesses, misrepresented facts to the state court in sworn statements, withheld exculpatory evidence, and ultimately had plaintiff arrested and charged with a murder they knew they lacked any evidence linking him to, while at the same time ignoring key evidence linking others to the murder to other. One can reasonably infer from the factual allegations of the complaint that plaintiff is claiming that he was targeted in this way because his father was a local elected official who had criticized the sheriff's department. The complaint is certainly adequate to place the defendants on notice as to the activities they are alleged to have engaged in, the legal basis for the claims against them, and the relief sought by plaintiff. This is all Rule 8 requires, and defendants have presented no persuasive argument that the collective reference to the defendants at various points in the complaint renders it inadequate.
According to defendants, plaintiff's claims against Merced County for wrongful arrest and detention, and for violation of California Civil Code § 52.1, are deficient because the complaint does not cite a specific statutory basis for such claims. Plaintiff noted in his opposition to the motion to dismiss he is relying on California Government Code §§ 815.2, 820, and 820.4 to allege claims for false arrest and false imprisonment. However, these statutory provisions are not specifically identified in the complaint.
"Except as otherwise provided by statute," a public entity is not liable for an injury, whether it arises out of an act or omission of the entity itself, a public employee, or any other person. Cal. Gov. Code § 815. Under California law, since all government tort liability is dependent on a statutory basis, a plaintiff must plead every fact with particularity, including the statutory basis for the claim. See Susman v. City of Los Angeles, 269 Cal.App.2d 803, 808-09 (1969).
California Civil Code § 52.1 permits individuals to bring private actions for damages whenever the exercise or enjoyment of their constitutional rights under state or federal law is interfered with by threat, intimidation, or coercion. It appears claims under § 52.1 may be brought against public entities. See Shoyoye v. County of Los Angeles, 203 Cal.App.4th 947, 950 (2012) (Bane Act claims brought against Los Angeles County). Public entities may be held liable for injuries proximately caused by their employees within the scope of employment if the act or omission would "have given rise to a cause of action against that employee or his personal representative." Cal. Gov. Code § 815.2. See also San Mateo Union High Sch. Dist. v. County of San Mateo, 213 Cal.App.4th 418, 432-33 (2013) ("In addition to limited statutory liability for their own conduct and legal obligations, public entities may incur liability, based on respondeat superior principles, for the misconduct of their employees that occurred in the scope of their employment.") (citations and quotations omitted). "[A] public employee is liable for injury caused by his act or omission to the same extent as a private person." Cal. Gov. Code § 820. "A public employee is not liable for his act or omission, exercising due care, in the execution or enforcement of any law. Nothing in this section exonerates a public employee from liability for false arrest or false imprisonment." Cal. Gov. Code § 820.4.
Because the statutory basis for plaintiff's false arrest and false imprisonment claims is not identified in his complaint but rather only in his opposition to the motion to dismiss, these claims against the county must be dismissed. However, since plaintiff clearly has a statutory basis for these claims, the court will grant him leave to amend the complaint to add the statutory bases for these state law claims. Because plaintiff's claim for violation of Civil Code § 52.1 is clearly based in statute, it may proceed, and defendant's motion to dismiss in this respect will be denied.
Defendants argue that plaintiff failed to comply with the Bodde maxim, which requires claims to be presented first to a government agency for payment. According to defendants, plaintiff failed to plead compliance with the claim presentation requirements because the claim must be presented within six months of the accrual of the cause of action. Plaintiff was arrested on July 25, 2014. He filed a claim against Merced County on May 12, 2015. According to defendants, his claim was therefore untimely, presumably because defendants believe plaintiff's cause of action accrued on the date he was originally arrested. Plaintiff responds that, by statute, claims against police officers are tolled while criminal charges are pending.
In State of California v. Superior Court of Kings County (Bodde), 32 Cal.4th 1234 (2004), the California Supreme Court noted that Government Code § 900, et seq. imposes a claim presentation requirement for tort suits against government entities. "[U]nder these statutes, failure to timely present a claim for money or damages to a public entity bars a plaintiff from filing a lawsuit against that entity." Bodde, 32 Cal. 4th at 1239. The "submission of a claim to a public entity pursuant to section 900 et seq. is a condition precedent to a tort action and the failure to present the claim bars the action." Id. at 1240 (citations and quotations omitted). Under California law, this requires a plaintiff to "allege facts demonstrating or excusing compliance with the claim presentation requirement." Id. at 1243. "A claim relating to a cause of action for death or for injury to person . . . shall be presented . . . not later than six months after the accrual of the cause of action." Cal. Gov. Code § 911.2.
Plaintiff argues that under California Government Code § 945.3 the statute of limitations is tolled for actions against police officers while charges are pending. However, § 945.3 specifically excepts § 911.2, which controls timing of presentation to a board of a public entity, stating: "Nothing in this section shall prohibit the filing of a claim with the board of a public entity, and this section shall not extend the time within which a claim is required to be presented pursuant to Section 911.2." Cal. Gov. Code § 945.3. All of this is, however, is immaterial, since the time for filing a claim under § 911.2 does not begin to run until the action accrues.
A cause of action for malicious prosecution accrues when "the underlying proceeding [has] been terminated favorably to the malicious prosecution plaintiff." Ray v. First Federal Bank, 61 Cal.App.4th 315, 318 (1998). More specifically, the cause accrues "at the time of entry of judgment in the underlying action in the trial court." Stavropoulos v. Superior Court of Los Angeles County, 141 Cal.App.4th 190, 197 (2006). Thus, a cause of action for false imprisonment in California "accrues upon release from confinement." Scannell v. County of Riverside, 152 Cal.App.3d 596, 614 (1984). Moreover, the California Supreme Court has clarified "[f]alse arrest and false imprisonment are not separate torts. False arrest is but one way of committing a false imprisonment." Asgari v. City of Los Angeles, 15 Cal.4th 744, 753 n.3 (1997) (citations and quotations omitted). "A cause of action for intentional infliction of emotional distress accrues . . . once the plaintiff suffers severe emotional distress as a result of outrageous conduct on the part of the defendant." Cantu v. Resolution Trust Corp., 4 Cal.App.4th 857, 889 (1992). Finally, a cause of action for defamation accrues "at the time the defamatory statement is `published,'" meaning "when the defendant communicates the defamatory statement to a person other than the person being defamed." Shively v. Bozanich, 31 Cal.4th 1230, 1246-47 (2003).
Here, plaintiff alleges in his complaint as follows. Plaintiff was arrested on July 25, 2014. (Doc. No. 1 at 15.) A preliminary hearing was held in the criminal prosecution of plaintiff and Tellez from November 10, 2014 through November 14, 2014, at the end of which plaintiff was found to be factually innocent of the charges.
Accordingly, defendant's motion to dismiss will be denied in this regard.
Defendants claim that, pursuant to the decision in Fall River Joint Unified School District, 206 Cal.App.3d 431 (1988), prior to filing a lawsuit against a public entity, a claimant must present each legal theory of recovery or cause of action to that entity. According to defendants, if a complaint alleges a factual basis for recovery against a public entity not reflected in the written claim submitted, it must be dismissed. Further, defendants assert that although the law allows for some variance, a wholesale change of theory between the claim and the complaint is not permitted. Because plaintiff failed to allege facts which would support defamation in his claim submitted to Merced County, defendants contend that any cause of action for defamation against the county set forth in plaintiff's complaint in this action must be dismissed.
Plaintiff responds that he "clearly set forth facts in his government claim that Defendants falsely and maliciously accused him of a heinous crime," and these accusations were "defamation per se." (Doc. No. 21 at 18.) According to plaintiff, this is more than sufficient to put the County and the individual defendants on notice that the specific statements of defendants cited in ¶ 53 of the complaint—namely, "This is bullshit, I know this guy did it," and the anonymous newspaper comments that plaintiff got away with murder—could be the basis for defamation claims.
California Government Code § 905 states "[t]here shall be presented . . . all claims for money or damages against local public entities." Moreover, "no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented." Cal. Gov. Code § 945.4. Further, "a cause of action against a public employee or former public employee for injury resulting from an act or omission in the scope of his employment as a public employee is barred if an action against the employing public entity for such injury is barred" under § 900, et seq. Cal. Gov. Code § 950.2. Thus, claims against a public employee or former public employee are subject to the claim presentation requirement of §§ 905 and 945.4, but only if the cause of action is "for injury resulting from an act or omission in the scope of [the employee's] employment as a public employee." Cal. Gov. Code § 950.2.
The crucial question here appears to be one unaddressed by the parties—whether the allegedly defamatory statements were "in the scope of [the defendants'] employment." Cal. Gov. Code § 950.2. If they were, then California's claim presentation requirements apply to them. If they were not, they are not subject to the claim presentation requirements at all. Indeed, the issue of whether the acts occurred within the scope of defendants' employment is of added importance since tortious acts occurring within the scope of employment create vicarious liability for government agencies under California law. See Cal. Gov. Code § 815.2; see also San Mateo Union High Sch. Dist. v. County of San Mateo, 213 Cal.App.4th 418, 432-33 (2013) ("In addition to limited statutory liability for their own conduct and legal obligations, public entities may incur liability, based on respondeat superior principles, for the misconduct of their employees that occurred in the scope of their employment."). The court notes that plaintiff has asserted defamation claims only against the individual defendants, and not against the county defendant, suggesting that he may believe the alleged acts were undertaken outside of the scope of the defendants' employment and therefore provide no basis for respondeat superior liability.
"An employee acts within `the scope of his employment' when he is engaged in work he was employed to perform or when an act is incident to his duty and was performed for the benefit of his employer and not to serve his own purpose." Fowler v. Howell, 42 Cal.App.4th 1746, 1750-51 (1996) (citing Mazzola v. Feinstein, 154 Cal.App.3d 305, 311 (1984)). "The proper inquiry is not whether the wrongful act itself was authorized but whether it was committed in the course of a series of acts of the employee which were authorized by the employer." Id. (quoting Perez v. Van Groningen & Sons, Inc., 41 Cal.3d 962, 970 (1986)). The "scope of employment" is viewed broadly to "include willful and malicious torts as well as negligence." Id. (citing John R. v. Oakland Unified Sch. Dist., 48 Cal.3d 438, 447 (1989). The employee need not be "engaged in the ultimate object of his employment" at the time of his wrongful act in order to be acting within the scope of his employment. Id. Ordinarily, the question of the scope of employment in California law is one of fact, unless the "facts are undisputed and no conflicting inferences are possible." Lisa M. v. Henry Mayo Newhall Mem'l Hosp., 12 Cal.4th 291 (1995) (quoting Mary M. v. City of Los Angeles, 54 Cal.3d 202, 215 (1991)). See also Farmers Ins. Group v. Cty. of Santa Clara, 11 Cal.4th 992, 1019 (1995).
As noted above, plaintiff has alleged the purportedly defamatory comments occurred at two separate times and places. The court has nothing before it from which to determine what the scope of the officers' employment was under California law, and whether they were acting within it at the time these allegedly defamatory statements occurred. Nor has either party addressed this point. Therefore, defendants' motion to dismiss the defamation claims on this ground will be denied without prejudice.
According to defendants, plaintiff's defamation claims must also be dismissed because his complaint does not set out "the specific words or the substance of" the allegedly defamatory statements. In particular, defendants argue that while "each defendant may be able to make an educated guess as to the alleged defamatory statement(s) plaintiff alleges pertains to him," plaintiff must plead the specific statements and who published the statements in order to state a cognizable defamation claim. Defendants may also be asserting plaintiff failed to plead that any of the statements were false as is required.
"A claim for defamation requires proof of a false and unprivileged publication that exposes the plaintiff `to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.'" McGarry v. University of San Diego, 154 Cal.App.4th 97, 112 (2007) (quoting Cal. Civ. Code § 45). A complaint is insufficient when it "does not allege either the specific words or the substance of statements" alleged to be defamatory. Lipman v. Brisbane Elementary Sch. Dist., 55 Cal.2d 224, 235 (1961) abrogated on other grounds as noted in Brown v. Kelly Broad. Co., 48 Cal.3d 711, 753 n.37 (1989). The defining feature of a defamation claim is a statement of fact that is "provably false," and "`rhetorical hyperbole,' `vigorous epithet[s],' `lusty and imaginative expression[s] of . . . contempt,' and language used `in a loose, figurative sense' have all been accorded constitutional protection." Nygard, Inc. v. Uusi-Kerttula, 159 Cal.App.4th 1027, 1048 (2008) (quoting Ferlauto v. Hamsher, 74 Cal.App.4th 1394, 1401 (1999)). As one California court has noted:
Comstock v. Aber, 212 Cal.App.4th 931, 948 (2012) (quoting 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 739, p. 159).
As noted above, however, plaintiff alleges two distinct sets of statements as being defamatory. With respect to the statements published in the Merced Sun Star, plaintiff asserts defendant Macias, Hale, and Sanchez "continue to defame him by accusing him of being an accomplice to murder and stating the only reason he was not held to answer is because of the Attorney General's mistakes." (Doc. No. 1 at 18.) In his complaint plaintiff sets out either specific defamatory words or the substance of statements which are purportedly defamatory. See Lipman, 55 Cal. 2d at 235. This is sufficient to state a claim for defamation. Plaintiff need not be able to allege which of the three named individual defendants gave unattributed statements to a newspaper reporter, or which defendant (admittedly unknown by plaintiff) made the allegedly defamatory statement following the preliminary hearing, prior to the conducting of discovery. Plaintiff has adequately alleged that the statements in question were false. Therefore, defendants' motion to dismiss plaintiff's defamation claims will be denied.
Defendants also seeks dismissal of "the state claims except for the malicious prosecution claim" pursuant to California Civil Code § 47.
California Civil Code § 47(b) provides that a "privileged publication or broadcast is one made . . . [i]n any . . . judicial proceeding . . . .
Defendants' argument is unavailing. The statements at issue occurred after the court declined to hold plaintiff to answer following his preliminary hearing at which time there was a judicial finding that probable cause was lacking. Therefore, the alleged defamatory statements cannot be said to have been made to "achieve the objects of the litigation," since the criminal prosecution had already concluded in plaintiff's favor. Defendants' alleged defamatory statements are therefore not protected by the litigation privilege and are not subject to dismissal.
Code § 52.1 should be dismissed because his complaint does not allege the existence of threats, intimidation, or coercion separate and apart from the inherent coercion in his alleged false imprisonment. Additionally, defendants contend that plaintiff's claims under § 52.1 against Merced County must be dismissed because no allegations specific to the county are alleged in the complaint, though defendant also says it "believed the County's liability was vicarious only." (Doc. No. 6 at 27.) According to plaintiff, the coercion in an intentional deprivation of one's liberty without probable cause is sufficient to state a claim under § 52.1.
Another judge of this court has recently recognized the split among the District Courts of California concerning what is required to state a cognizable Bane Act claim:
Akey v. Placer County, No. 2:14-cv-02402-KJM-KJN, 2015 WL 1291436 (E.D. Cal. Mar. 20, 2015). The order in Akey was issued shortly after the California Court of Appeals concluded that where there is an "allegedly unlawful arrest but no alleged coercion beyond the coercion inherent in any arrest . . . [the] wrongful arrest or detention, without more, does not satisfy both elements of section 52.1." Allen v. City of Sacramento, 234 Cal.App.4th 41, 69 (2015). Since the decision in Allen, two California District Judges have come to a conclusion contrary to that reached by the court in Allen while specifically acknowledging its holding. See Adamson v. City of San Francisco, No. 13-cv-05233-DMR, 2015 WL 5467744, at *9 (N.D. Cal. Sept. 17, 2015) ("[T]his court has previously held, consistent with the weight of authority in this district, that a section 52.1 claim `does not require threats, coercion, or intimidation independent from the threats, coercion, or intimidation inherent in the alleged constitutional or statutory violation.'"); McKibben v. McMahon, No. EDCV 14-02171 (JGB), 2015 WL 10382396, at *4 (C.D. Cal. Apr. 17, 2015) (distinguishing Allen). "In the absence of a controlling California Supreme Court decision, [a federal court] must predict how the California Supreme Court would decide the issue, using intermediate appellate court decisions, statutes, and decisions from other jurisdictions as interpretive aids." Gravquick A/S v. Trimble Navigation Int'l Ltd., 323 F.3d 1219, 1222 (9th Cir. 2003).
Here, plaintiff has alleged defendants "caused the initiation of a malicious criminal prosecution against Plaintiff in violation of his First
Defendants argue there is no independent tort of negligent infliction of emotional distress under California law and that such a claim may only arise in either a direct victim or bystander setting. Further, defendants argue "[t]he facts as alleged do not support the claim." (Doc. No. 6 at 27.) Plaintiff first asserted in his opposition to the pending motion that he was simply alleging negligence, not negligent infliction of emotional distress. However, at the hearing on the pending motion counsel for plaintiff changed course and contended this was a separate cause of action alleging negligent infliction of emotional distress, as approved of in Martinez v. City of Los Angeles, 141 F.3d 1373 (9th Cir. 1998), rather than simply a negligence claim.
Defendants are correct that there is no independent tort of negligent infliction of emotional distress under California law. Burgess v. Superior Court, 2 Cal.4th 1064, 1072 (1992) ("We have repeatedly recognized that `[t]he negligent causing of emotional distress is not an independent tort, but the tort of negligence.'") (quoting Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., 48 Cal.3d 583, 588 (1989))). Negligent infliction of emotional distress is instead a subset of negligence that extends the ability to recover damages to indirect victims who, while not suffering physical injury as the result of a tortfeasor's acts, nonetheless suffer severe emotional distress. See, e.g., Dillon v. Legg, 68 Cal.2d 728, 747-48 (1968) (allowing mother to pursue damages for emotional trauma resulting from witnessing the death of her child). However, when emotional distress accompanies physical injury, negligent infliction of emotional distress is not the appropriate cause of action for seeking recovery of the resulting damages. Rather, when a plaintiff is physically injured and suffers emotional distress as a result, damages stemming from the emotional distress are treated as a "parasitic item" to be recovered through a claim of ordinary negligence. Thing v. La Chusa, 48 Cal.3d 644, 651 (1989); see also Summers v. Delta Airlines, Inc., 805 F.Supp.2d 874, 887 (N.D. Cal. 2011) ("Under California law, it is well-settled that in ordinary negligence actions for physical injury, recovery for emotional distress caused by that injury is available as an item of parasitic damages.") (quotation omitted).
A negligent infliction of emotional distress claim as a vehicle for recovery when one is not directly injured is available only in limited circumstances. Under the "direct victim" theory, a plaintiff may recover damages for serious emotional distress—absent a physical injury—if the distress results from "a breach of duty owed the plaintiff that is `assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.'" Burgess, 2 Cal. 4th at 1073 (quoting Marlene F., 48 Cal. 3d at 590). "To recover damages for emotional distress, absent physical injury, in a `bystander case' the plaintiff must be: (1) Closely related to the injury victim; (2) Present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) Suffer emotional distress as a result, beyond that which would occur in a disinterested witness." Megargee ex rel. Lopez v. Wittman, No. CVF 06-0684 AWI-LJO, 2006 WL 2988945, at *16 (E.D. Cal. Oct. 17, 2006) (citing Martin By and Through Martin v. United States, 984 F.2d 1033, 1037 (9th Cir. 1992)).
Plaintiff alleges he was directly—as opposed to indirectly—injured by the illegal activity of defendants. The complaint alleges that negligently inflicted emotional distress because they "were negligent and their negligence was a substantial factor in causing Plaintiff to suffer serious emotional distress." (Doc. No. 1 at 22.) Insofar as these allegations reflect an attempt to fit into either the "direct victim" or "bystander" theories outline above, they are wholly insufficient. Plaintiff does not state a cause of action for negligent infliction of emotional distress.
According to defendants, plaintiff failed to allege he was the victim of extreme and outrageous conduct sufficient to sustain a claim for intentional infliction of emotional distress. Plaintiff responds that defendants' arrest of plaintiff "based on misrepresentations in an arrest warrant," combined with the withholding of evidence from the prosecuting Deputy Attorney General and "wantonly refus[ing] to investigate persons who had confessed to committing the crime . . . is extreme and outrageous conduct." (Doc. No. 21 at 23.)
The tort of intentional infliction of emotional distress has three elements: "(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct." Hughes v. Pair, 46 Cal.4th 1035, 1050 (2009). Extreme and outrageous conduct is described as being conduct which is "intentional or reckless and which is outside the bounds of decency." Christensen v. Superior Court of Los Angeles County, 54 Cal.3d 868, 904 (1991). The California Supreme Court has noted that threats of harm or death can meet this criteria, as can harassing e-mails or well-pled claims of sexual harassment. Id. at 1051 (citing cases). Because there is no bright line rule for when conduct qualifies as outrageous, it is usually a question of fact for a jury to decide. Yun Hee So v. Sook Ja Shin, 212 Cal.App.4th 652, 671-72 (2013). A court may dismiss such claims as a matter of law if the conduct alleged is insufficiently outrageous, particularly where the conduct alleged amounts to "mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities." Hughes, 46 Cal. 4th at 1051 (quotations and citations omitted).
Here, the conduct alleged by plaintiff in his complaint goes far beyond "mere insults" or indignities. Taking those allegations as true, the individual defendants knowingly misrepresented information in order to arrest him and charge him with murder, apparently in order to exact political retribution against plaintiff's father, a local politician who had been critical of the Sherriff's Department. A jury could certainly find this behavior was extreme and outrageous and beyond the bounds of decency. Accordingly, defendants' motion to dismiss this claim will be denied
The individual defendants argue that California Government Code § 821.6 immunizes them from liability for malicious prosecution and negligent and intentional infliction of emotional distress. Plaintiff responds that he is not pursuing a state law malicious prosecution because defendants are immune, but contends that § 821.6 does not immunize the defendants from liability under 42 U.S.C. § 1983 for malicious prosecution.
"A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause." Cal. Gov. Code § 821.6. "Although Government Code section 821.6 has primarily been applied to immunize prosecuting attorneys and other similar individuals, this section is not restricted to legally trained personnel but applies to all employees of a public entity." Kemmerer v. County of Fresno, 200 Cal.App.3d 1426, 1436 (1988). "Neither is the section `limited to suits for damages for malicious prosecution, although that is a principal use of the statute.'" Id. (quoting Kayfetz v. State of California, 156 Cal.App.3d 491, 497 (1984)). This section has been held to apply to peace officers. Johnson v. City of Pacifica, 4 Cal.App.3d 82, 86-87 (1970). However, § 821.6 does not provide immunity for false arrest, false imprisonment, or a claim for arrest without probable cause brought under California Civil Code § 52.1. See Gilan v. City of San Marino, 147 Cal.App.4th 1033, 1050-51 (2007). Finally, the Ninth Circuit has held that while § 821.6 immunizes state employees from malicious prosecution claims, it does not affect false arrest/false imprisonment claims or claims that are "derivative" of them. Cousins v. Lockyer, 568 F.3d 1063, 1071-72 (9th Cir. 2009). But see Bocanegra v. Jakubowski, 241 Cal.App.4th 848, 854 (2015).
Above, the court has already concluded that plaintiff has failed to state a separate cause of action for negligent infliction of emotional distress.
Defendants assert in their reply that they are immune under § 821.6 to plaintiff's defamation claims. According to defendants, "[t]he scope of the immunity [granted by the statute] `is dependent not on when the acts occurred, but whether they are causally connected to the investigation and prosecution.'" (Doc. No. 24 at 16) (quoting County of Los Angeles v. Superior Court of Los Angeles County, 181 Cal.App.4th 218, 230 (2009).) Here, plaintiff's defamation claims are based on the post-hearing statements of the individual defendants, after both the investigation and prosecution of the criminal charges were concluded. Such statements cannot be described as being "part of the investigation and prosecution process" and, therefore, do not fall under the immunity conferred by § 821.6. Accordingly, this aspect of defendants' motion to dismiss the claims will be denied.
Defendants also argue that to the extent claims are dismissed against the individual plaintiffs or they are held immune, the claims must also be dismissed against Merced County because plaintiff is proceeding on a vicarious liability theory. Plaintiff offers no opposition. As set forth above, the court finds only that plaintiff failed to state a cognizable claim for negligent infliction of emotional distress. That claim is leveled by plaintiff only against the individual defendants. There defendants' motion to dismiss that claim as to the defendant County will be denied as unnecessary.
Defendants argue that plaintiff has failed to plead sufficient facts to support a claim for punitive damages against the individual defendants, presumably with respect to any of his causes of action. Plaintiff argues the factual allegations suggesting defendants targeted him for prosecution in order to exact political retribution against his father are sufficient to sustain a punitive damages claim because they demonstrate malice and that defendants acted in conscious disregard of plaintiff's constitutional rights.
"The standard for punitive damages under § 1983 mirrors the standard for punitive damages under common law tort cases." Dang v. Cross, 422 F.3d 800, 807 (9th Cir. 2005). "[M]alicious, wanton, or oppressive acts or omissions are within the boundaries of traditional tort standards for assessing punitive damages and foster `deterrence and punishment over and above that provided by compensatory awards.'" Id. (quoting Smith v. Wade, 461 U.S. 30, 54 (1983)). Here, if the facts as alleged in plaintiff's complain are proven, a reasonable jury could find the individual defendants' behavior to be malicious, wanton, or oppressive. Accordingly, defendants are not entitled to dismissal of plaintiff's punitive damages claim.
Defendants alternatively move for a more definite statement of plaintiff's claims under Rule 12(e), arguing that "the Complaint lacks any factual specificity with respect to the alleged wrongful conduct of each of the individual defendants." Plaintiff did not respond to this argument in his opposition.
Rule 12 states a party may move for a more definite statement if the pleading is "so vague and ambiguous that the party cannot reasonably prepare a response." Fed. R. Civ. P. 12(e). In so moving, the party "must point out the defects complained of and the details desired." Id. Such motions are "not favored by the courts since pleadings in federal courts are only required to fairly notify the opposing party of the nature of the claim." Griffin v. Cedar Fair, L.P., 817 F.Supp.2d 1152, 1154 (N.D. Cal. 2011) (quoting Resolution Trust Corp. v. Dean, 854 F.Supp. 626, 629 (D. Ariz. 1994)). Finally, motions for a more definite statement "should not be granted unless the defendant cannot frame a responsive pleading." Famolare, Inc. v. Edison Bros. Stores, Inc., 525 F.Supp. 940, 949 (E.D. Cal. 1981).
Here, defendants' only concrete complaint about the vagueness of plaintiff's complaint is that it generically refers to "defendants" on occasion, rather than specifying which of the individual defendants is alleged to have acted. However, plaintiff has included significant factual detail in his complaint and those allegations are more than sufficient to put defendants on notice of the claims and actions being alleged. Defendants' motion for a more definite statement will therefore be denied.
For all of the reasons set forth above, defendants' motion to dismiss (Doc. No. 6) is granted in part and denied in part as follows:
As to the dismissed claims identified above, plaintiff is granted leave to file an amended complaint within twenty-one days of service of this order.
IT IS SO ORDERED.
