Cristina Gutierrez et al v. County of Los Angeles et al

Filing 81

MINUTES OF Motion Hearing held before Judge Christina A. Snyder: Defendants' Motion for Summary Judgment 46 is GRANTED in part and DENIED in part. See document for details. Court Reporter: Laura Elias. (gk)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

“O”

CIVIL MINUTES - GENERAL
Case No.

CV 10-7589-CAS (PLAx)

Title

CRISTINA GUTIERREZ, ET AL. V. COUNTY OF LOS ANGELES, ET
AL.

Present: The Honorable

Date

July 22, 2013

CHRISTINA A. SNYDER

Catherine Jeang
Deputy Clerk

Laura Elias
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants

Thomas Beck

Erica Bianco
Richard Rodriguez-Campbell

Proceedings:

I.

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
(filed May 24, 2013) [46]

INTRODUCTION

On October 12, 2010, plaintiffs Cristina Gutierrez, Hector Gutierrez Sr., and
Hector Gutierrez Jr. filed the complaint in the instant action against defendants County
of Los Angeles (the “County”); Deputy Reyes # 480735 (“Reyes”), individually and as a
peace officer; Deputy D. Payne #470624 (“Payne”), individually and as a peace officer;
Steve Suzuki #259461 (“Suzuki”); and Captain Matt Dendo (“Dendo”). The gravamen
of plaintiffs’ complaint is that defendant officers entered their residence under the guise
of a probation search related to Alvaro Gutierrez, the Gutierrez’s son and brother of
Hector Jr., and removed jewelry and firearms with no reason to do so.
On June 14, 2011, the Court granted in part and denied in part defendants’
motions to dismiss, for a more definite statement, and to strike plaintiffs’ complaint.
Thereafter, plaintiffs filed the operative First Amended Complaint (“FAC”) on
July 14, 2011. Dkt. No. 27. Plaintiffs assert claims for: (1) violation of plaintiffs’ First,
Fourth, and Fourteenth Amendment rights, under 42 U.S.C. § 1983; (2) Monell liability
for maintaining an unconstitutional policy or custom; (3) false arrest; (4) conversion; (5)
conspiracy; (6) intentional infliction of emotional distress (“IIED”); and (7) violation of
statutory duties. On May 20, 2012, the parties stipulated to dismiss defendant Suzuki
with prejudice.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

“O”

CIVIL MINUTES - GENERAL
Case No.

CV 10-7589-CAS (PLAx)

Date

July 22, 2013

Title

CRISTINA GUTIERREZ, ET AL. V. COUNTY OF LOS ANGELES, ET
AL.

On May 24, 2013, defendants filed their motion for summary judgment as to all
claims asserted against all defendants. Plaintiffs opposed the motion on June 30, 2013,
and defendants replied on July 8, 2013. The Court held a hearing on July 22, 2013.
After considering the parties’ arguments, the Court finds and concludes as follows.
II.

BACKGROUND

Plaintiffs Christina and Hector Sr. reside with their son Hector Jr. at 1015
Rosewood Avenue in the City of Inglewood (“Rosewood Property”).1 Hector Jr.’s
apartment is separate and unattached at the back of the main house. Prior to July 5,
2009, Alvaro Gutierrez, another of the Gutierrez’s sons, also resided at this address. On
July 5, 2009, however, Alvaro’s parents informed him that he was no longer welcome at
their residence, and he had allegedly not been to the house since that time before the
incident.
A.

The Traffic Stop

In the afternoon of October 30, 2009, non-party Alvaro was driving his Chevy
Lumina near his parents’ house when he was stopped by Deputies Payne and Reyes.
According to the deputies, Alvaro was initially stopped for a broken tail light and tinted
front windows; Alvaro disputes the truth of these assertions. After approaching Alvaro’s
car, the deputies contend that they smelled unburnt marijuana in the vehicle and also
“learned” that Alvaro was on probation and subject to a probation compliance search.
They further confirmed that Alvaro lived at 1015 Rosewood Avenue and detained him
before heading to the residence to conduct the search. Payne testifies that he initially
stayed behind with Alvaro while Reyes headed to the residence.
Alvaro, on the other hand, testifies that there was no marijuana scent in his vehicle
and that there were no containers that previously contained marijuana in the car, as the
deputies later wrote in their report. He also testifies that the deputies never asked him if
he was on probation or told him why he was being stopped. During the stop, Hector Jr.
For the sake of clarity, the Court will use the first names of plaintiffs to this
litigation.
1

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

“O”

CIVIL MINUTES - GENERAL
Case No.

CV 10-7589-CAS (PLAx)

Date

July 22, 2013

Title

CRISTINA GUTIERREZ, ET AL. V. COUNTY OF LOS ANGELES, ET
AL.

and Michael Rappuhn, another relative, came over to the location of the deputies to
observe what was transpiring. They saw Alvaro handcuffed in the back of the deputies’
car while the deputies searched his trunk.
During the search, Alvaro testifies that the deputies found his driver’s license and
asked him if he lived at the address stated on the license, 1015 Rosewood Avenue. This
address is also listed on the document setting forth Alvaro’s probation terms. Defs.’ Ex.
A (Probation and Sentence Hearing, November 17, 2008). In particular, these terms
required Alvaro to “[s]ubmit person and property to search and seizure at any time of day
or night by any law enforcement officer or by probation officer with or without a
warrant.” Id. Alvaro replied that he lived in Santa Monica and spent some nights in
Hawthorne, and that he did not live at the Rosewood address. Shortly thereafter,
according to Hector Jr. and Rappuhn, a patrol car arrived with deputies Aaron Shintaku
and David Fernandez. Reyes got into this car and proceeded to the Gutierrezes’ address;
Hector Jr. followed on his bicycle.
B.

The Search at the Rosewood Property

The deputies contend that they then notified additional units, including Sergeant
Waldie, before entering the residence to conduct their search. Hector Jr. had returned
home by this time and was in the main house; Cristina was at home resting in bed in her
room, which is separate from Hector Sr.’s, who was not present at that time.
According to plaintiffs, however, Reyes came on to the property before Waldie
arrived, damaging the gate across plaintiffs’ driveway in the process. He and Deputy
Fernandez also entered Hector Jr.’s separate apartment without Hector Jr.’s authority or
permission. Deputy Reyes admits to searching this separate unit as part of a “protective
sweep” of the premises, but does not state when he did so.
After searching this unit, Reyes and Deputy Shintaku went to the back door of the
main house and opened the metal security door. There, Hector Jr. asked the deputies
what they were doing at the residence, at which time Reyes informed him that they were
searching the whole property pursuant to his brother’s probationary status. Hector Jr.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

“O”

CIVIL MINUTES - GENERAL
Case No.

CV 10-7589-CAS (PLAx)

Date

July 22, 2013

Title

CRISTINA GUTIERREZ, ET AL. V. COUNTY OF LOS ANGELES, ET
AL.

told the deputies that Alvaro no longer lived at the house and that Cristina said that the
deputies could not come inside.
However, Deputy Reyes allegedly put his foot inside the doorway to the house and
demanded that Hector Jr. raise his mother from bed. After repeating this demand a
second time, Hector Jr. went to get his mother out of bed, and Reyes, Shintaku, and
Fernandez entered the house.
At this point, Reyes asked Cristina in Spanish where her money and jewelry were
located; Hector Jr. protested, asking why the deputies needed to know this information.
Reyes did not answer and ordered Hector Jr. and his mother to the front of the house.
Reyes also asked if there were any weapons in the house, to which Hector Jr. replied that
there were two, both belonging to his father. According to defendants, these are standard
questions for a probation search.
As they passed through the house, Reyes asked if a particular room belonged to
Alvaro; Hector Jr. told Reyes that it used to belong to him. The deputies allegedly seized
cash, drugs, and ammunition for a .357 Magnum handgun from this room.
Thereafter, Reyes again inquired as to the presence of jewelry and money in the
house, and Hector Jr. again objected to Reyes’s inquiry. After further back and forth,
Reyes allegedly grabbed Hector Jr. and locked him into the back of Deputy Payne’s
patrol car alongside Alvaro. Deputy Reyes and Payne testify that they were
accommodating Hector Jr.’s request to speak to Alvaro, a request that Hector Jr. denies
making. The deputies also testify that they then found an outstanding “no bail” warrant
for Hector Jr. and therefore decided to detain him. Hector Jr. contends that he demanded
to be let go, but that Deputy Shintaku refused his demands.
Cristina was then escorted to her bedroom by Deputy Reyes, where Fernandez and
Payne were waiting. At this point, Cristina retrieved a rifle from the closet in her room
for the deputies and was sent back to the living room. She was then escorted between
the bedroom and the living room multiple times to retrieve jewelry and money, leaving
the deputies in the bedroom. She asked to call her husband, but Reyes allegedly
informed her that she could not.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

“O”

CIVIL MINUTES - GENERAL
Case No.

CV 10-7589-CAS (PLAx)

Date

July 22, 2013

Title

CRISTINA GUTIERREZ, ET AL. V. COUNTY OF LOS ANGELES, ET
AL.

After providing a recorded interview to Sergeant Waldie while seated in the living
room, Cristina was allowed to call her husband at 7:29 p.m, in order to assist the deputies
with locating his handgun. As she was on the phone with her husband, she testifies that
she observed Reyes carrying two shoe boxes from the bedroom covered by a darkcolored t-shirt. Cristina stored some of her jewelry in a shoe box in her bedroom.
Rappuhn and others allegedly witnessed Reyes placing these boxes into a hamper, then
into the back of his patrol car. Deputy Payne, on the other hand, claims that he dumped
the contents of the hamper into his patrol car trunk and returned the hamper to the
Gutierrez home.
Reyes then returned to the living room without the aforementioned items and
again asked Cristina where the second gun was. Reyes retrieved this gun from Hector
Sr.’s room, allegedly damaging a locked gun case in the process, and placed this into the
patrol car along with the other seized items. At the end of this encounter, Hector Jr. was
released from the patrol car, after allegedly being detained for more than two hours. The
deputies contend that although he did not have an outstanding “no bail” warrant, he did
have an outstanding out of county misdemeanor warrant for contempt of court. Hector
Jr. denies that any such warrant exists.
C.

Post-Search Events

Plaintiffs contend that the deputies failed to leave any receipts for any of the items
that were taken from their home. Shortly after the search, they Cristina allegedly
discovered that her jewelry shoe box and other jewelry that she stored in her dresser was
missing.
Thereafter, plaintiffs unsuccessfully attempted to discover the status of their
allegedly missing property at the Lennox sheriffs’ station. They maintain that the
sheriffs department refused to actually investigate their complaint, and the deputies in
question testified that they had no recollection of actually speaking to the Lieutenant at
the sheriffs’ station tasked with investigating plaintiffs’ complaint. On August 10, 2010,
plaintiffs obtained an order from the Superior Court in Alvaro’s then-pending criminal
case directing the sheriffs department to return their property to them. Pls.’ Ex. L. The
list of property included Cristina’s jewelry, the rifle and .357 Magnum handgun,
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

“O”

CIVIL MINUTES - GENERAL
Case No.

CV 10-7589-CAS (PLAx)

Date

July 22, 2013

Title

CRISTINA GUTIERREZ, ET AL. V. COUNTY OF LOS ANGELES, ET
AL.

ammunition, a shirt, and a mesh clothes hamper. Id. Even with this order, however,
plaintiffs maintain that they had great difficulty obtaining their property from the sheriffs
department, and plaintiffs have not obtained their ammunition, jewelry, clothing, or
laundry hamper to date.
III.

LEGAL STANDARD

Summary judgment is appropriate where “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The moving party bears the initial burden of identifying relevant portions of the
record that demonstrate the absence of a fact or facts necessary for one or more essential
elements of each claim upon which the moving party seeks judgment. See Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986).
If the moving party meets its initial burden, the opposing party must then set out
specific facts showing a genuine issue for trial in order to defeat the motion. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see also Fed. R. Civ. P. 56(c), (e). The
nonmoving party must not simply rely on the pleadings and must do more than make
“conclusory allegations [in] an affidavit.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871,
888 (1990); see also Celotex, 477 U.S. at 324. Summary judgment must be granted for
the moving party if the nonmoving party “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Id. at 322; see also Abromson v. Am. Pac. Corp., 114
F.3d 898, 902 (9th Cir. 1997).
In light of the facts presented by the nonmoving party, along with any undisputed
facts, the Court must decide whether the moving party is entitled to judgment as a matter
of law. See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 631 &
n.3 (9th Cir. 1987). When deciding a motion for summary judgment, “the inferences to
be drawn from the underlying facts . . . must be viewed in the light most favorable to the
party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986) (citation omitted); Valley Nat’l Bank of Ariz. v. A.E. Rouse & Co., 121
F.3d 1332, 1335 (9th Cir. 1997). Summary judgment for the moving party is proper
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

“O”

CIVIL MINUTES - GENERAL
Case No.

CV 10-7589-CAS (PLAx)

Date

July 22, 2013

Title

CRISTINA GUTIERREZ, ET AL. V. COUNTY OF LOS ANGELES, ET
AL.

when a rational trier of fact would not be able to find for the nonmoving party on the
claims at issue. See Matsushita, 475 U.S. at 587.
IV.

DISCUSSION

In their opposition, plaintiffs expressly abandon their second claim for a Monell
violation and seventh claim for torts in essence. Judgment for defendants is appropriate
on these claims.
A.

Plaintiffs’ Claims for Violations of Section 1983

Plaintiffs claim that the deputies violated their First, Fourth, and Fourteenth
Amendment rights during the incident in question. Defendants contend that qualified
immunity bars plaintiffs’ constitutional claims. Because the qualified immunity inquiry
incorporates the question of whether a plaintiff can prove a claimed constitutional
deprivation at trial, the Court begins with this framework.
“Qualified immunity protects officers from liability for civil damages where their
alleged unconstitutional conduct does not violate a clearly established right.” Ford v.
City of Yakima, 706 F.3d 1188, 1192 (9th Cir. 2013). The deputies here are entitled to
qualified immunity from plaintiffs’ constitutional claims “unless (1) facts viewed in the
light most favorable to the injured party show that the officer violated a constitutional
right and (2) the right was clearly established at the time of the alleged misconduct.” Id.
(citing Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled on other grounds by Pearson
v. Callahan, 555 U.S. 223 (2009)).
1.

First Amendment

Even while exercising their lawful duties, “the First Amendment protects a
significant amount of verbal criticism and challenge directed at police officers.” City of
Houston v. Hill, 482 U.S. 451, 461 (1987). Indeed, “[t]he freedom of individuals
verbally to oppose or challenge police action without thereby risking arrest is one of the
principal characteristics by which we distinguish a free nation from a police state.” Id. at
462–63. The question is whether the deputies’ actions “would chill or silence a person
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

“O”

CIVIL MINUTES - GENERAL
Case No.

CV 10-7589-CAS (PLAx)

Date

July 22, 2013

Title

CRISTINA GUTIERREZ, ET AL. V. COUNTY OF LOS ANGELES, ET
AL.

of ordinary firmness from future First Amendment activities.” Lacey v. Maricopa Cnty.,
693 F.3d 896, 916 (9th Cir. 2012) (en banc) (quotation omitted). To succeed on this
claim, plaintiffs must also prove at trial that “the officers’ desire to chill his speech was a
but-for cause of their allegedly unlawful conduct.” Ford, 706 F.3d at 1193.
Here, Hector Jr.’s First Amendment claim is premised upon his alleged detention,
without justification, by the deputies during the search of the Gutierrez residence. He
contends that the deputies decided to detain him as a result of his repeated challenges to
Reyes’s demands for his mother’s jewelry and money during the search of the residence.
The deputies, on the other hand, contend that they took him to the patrol car initially to
speak with his brother, and then detained him after discovering an out of county warrant
in his name. In the deputies view, this warrant provided them with probable cause to
lawfully detain him, negating any claim.
Viewing the facts in a light most favorable to plaintiffs, the Court finds that
disputes of material fact remain as to plaintiff’s claim for violation of the First
Amendment, as Hector Jr. could prove such a claim at trial. First, the Ninth Circuit has
repeatedly recognized that “retaliatory police action such as an arrest or search and
seizure would chill a person of ordinary firmness from engaging in future First
Amendment activity.” Ford, 706 F.3d at 1193 (citing Lacey, 693 F.3d at 916; Skoog v.
Cnty. of Clackamas, 469 F.3d 1221, 1231 (9th Cir. 2006)). A rational jury could find
that the deputies’ detention of Hector Jr. during the search of the residence, allegedly in
retaliation for his protestations about the deputies’ conduct at his residence, would deter
or chill the future exercise of plaintiff’s First Amendment rights.
Second, based on the evidence before the Court, Hector Jr. could prove to a
rational jury that his exercise of his First Amendment rights was the but-for cause of his
detention. Even if the deputies could have detained plaintiff on the basis of an
outstanding warrant as they contend, it is up to the jury to decide whether defendants in
fact acted on the basis of this warrant, or if instead, their alleged retaliatory motive was
the but-for cause of their conduct. See Ford, 706 F.3d at 1194–95 (reversing grant of
summary judgment for defendants where “the officers’ alleged conduct violated
[plaintiff’s] right to be free from police action motivated by retaliatory animus, even if
probable cause existed for that action”); Dietrich v. John Ascuaga’s Nugget, 548 F.3d
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

“O”

CIVIL MINUTES - GENERAL
Case No.

CV 10-7589-CAS (PLAx)

Date

July 22, 2013

Title

CRISTINA GUTIERREZ, ET AL. V. COUNTY OF LOS ANGELES, ET
AL.

892, 901 (9th Cir. 2008) (citing Hartman v. Moore, 547 U.S. 250, 265-66 (2006) (noting
that the presence of probable cause “is not dispositive,” even if it “has high probative
force”). The inconsistent explanations in the record as to why Hector Jr. came to be in
the back seat of a patrol car during the search, and when any warrant was actually
discovered, present genuine disputes of material fact to be resolved at trial.
Because the facts viewed in the light most favorable raise a disputed issue of fact
as to whether the deputies may have violated Hector Jr.’s First Amendment rights, the
first requirement of Saucier is met. The question that remains is whether the deputies are
entitled to qualified immunity because plaintiff’s constitutional right was not clearly
established.
“For a constitutional right to be clearly established, its contours must be
sufficiently clear that a reasonable official would understand that what he is doing
violates that right.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quotation omitted). “The
right must not be stated as a broad general proposition, but rather must be defined with
enough specificity to put a reasonable officer on notice that his conduct is unlawful.”
Ford, 706 F.3d 1188, 1195 (9th Cir. 2013) (citing Reichle v. Howards, — U.S. —, 132 S.
Ct. 2088, 2093–94 (2012)). “[T]he relevant inquiry is whether the state of the law at the
time of the official conduct complained of was such as to give the defendants ‘fair
warning’ that their conduct was unconstitutional—that a fair application of
well-established legal principles would warrant such a conclusion.” Young v. Cnty. of
Los Angeles, 655 F.3d 1156, 1167 (9th Cir. 2011).
Taking the facts in the light most favorable to plaintiffs, the Court concludes that
defendants are not entitled to qualified immunity on Hector Jr.’s First Amendment claim.
At least since 1990, police officers have been on notice that “it is unlawful to use their
authority to retaliate against individuals for their protected speech.” Ford, 706 F.3d at
1195 (citing Duran v. City of Douglas, 904 F.2d 1372 (9th Cir. 1990)); see also Beck v.
City of Upland, 527 F.3d 853, 871 (9th Cir. 2008)). Subsequently, the Ninth Circuit’s
2006 decision in Skoog established that even where probable cause justifies a search and
seizure of an individual, an officer’s actions may nonetheless be unlawful if the officer’s
primary motivation was to retaliate against an individual’s exercise of his First
Amendment rights. 469 F.2d at 1235. As the Ninth Circuit later held, “Duran clearly
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

“O”

CIVIL MINUTES - GENERAL
Case No.

CV 10-7589-CAS (PLAx)

Date

July 22, 2013

Title

CRISTINA GUTIERREZ, ET AL. V. COUNTY OF LOS ANGELES, ET
AL.

established that police officers may not use their authority to punish an individual for
exercising his First Amendment rights, while Skoog clearly established that a police
action motivated by retaliatory animus was unlawful, even if probable cause existed for
that action.” Ford, 706 F.3d at 1196.
Based on the foregoing, a reasonable officer would have understood that he did
not have the authority to detain an individual for over two hours in a patrol car in
retaliation for that individual’s First Amendment speech, even if the officer could have
permissibly detained such individual pursuant to a valid warrant or incident to a search
of the premises. See Sanchez v. Canales, 574 F.3d 1169, 1174 (9th Cir. 2009) (finding
detention of a resident during a search of a parole’s presumptive residence to be
permissible), overruled on other grounds by United States v. King, 687 F.3d 1189 (9th
Cir. 2012) (en banc). It will be for the jury to decide whether the officers were motivated
by a desire to retaliate for Hector Jr.’s protected speech or whether the officers acted
pursuant to a valid, outstanding warrant. Accordingly, the Court finds that defendants
are not entitled to summary judgment on the basis of qualified immunity from suit or
judgment on the merits of plaintiff’s First Amendment claim.
2.

Fourth Amendment Claims

Plaintiffs challenge the constitutionality of the search and seizure at their
residence by contending that all of the following were violations of their Fourth
Amendment rights: (1) the stop, search, and seizure of Alvaro and his car; (2) the initial
entry and search on Rosewood; (3) the search of Hector Jr.’s separate apartment; and (4)
the search of the Cristina and Hector Sr.’s separate bedrooms.
a.

The Search of Alvaro’s Car

At the outset, the Court finds that plaintiffs lack standing to challenge the legality
of the deputies’ traffic stop of Alvaro, who is not a plaintiff to this action. Because
“Fourth Amendment rights are personal rights which may not be vicariously asserted . . .
the general rule is that only the person whose Fourth Amendment rights were violated
can sue to vindicate those rights.” Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d
365, 369 (9th Cir. 1998) (citations and alterations omitted). To establish standing to
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

“O”

CIVIL MINUTES - GENERAL
Case No.

CV 10-7589-CAS (PLAx)

Date

July 22, 2013

Title

CRISTINA GUTIERREZ, ET AL. V. COUNTY OF LOS ANGELES, ET
AL.

challenge the search of Alvaro, therefore, “plaintiffs must prove that they had a
legitimate expectation of privacy in the area searched or the things seized.” Martinez v.
Nygaard, 831 F.2d 822, 825 (9th Cir. 1987). Plaintiffs have not done so here. Cristina,
Hector Jr., Hector Sr. have no personal interest in Alvaro’s personal right to be free from
unlawful search and seizure, nor any legitimate expectation of privacy in the vehicle in
which he was stopped, which belonged solely to Alvaro. Accordingly, the Court may
not consider plaintiffs’ challenge to the legality of the deputies traffic stop of Alvaro.2
b.

Initial Entry to the Rosewood Property

The Court next considers the propriety of the deputies’ search of plaintiffs’
residence. “It is a basic principle of Fourth Amendment law that searches and seizures
inside a home without a warrant are presumptively unreasonable.” Brigham City, Utah
v. Stuart, 547 U.S. 398, 403 (2006) (quotation marks omitted). This is precisely the
situation presented here, as the deputies conducted a warrantless search of plaintiffs’
residence, allegedly without their permission to do so.
The question that remains is whether Alvaro’s status as a probationer permitted the
deputies to conduct a warrantless search at plaintiffs’ residence. Because of recent
evolution in the case law in this area, the Court finds it appropriate to address the issue
of qualified immunity first, which looks to the clearly established law at the time of the
incident in question. Pearson, 555 U.S. at 236. As with the First Amendment question
addressed above, the Court takes the facts in the light most favorable to plaintiffs.

Plaintiffs’ comparison to Liston v. County of Riverside is unpersuasive. 120
F.3d 965 (9th Cir. 1997). There, the court determined that if a plaintiff made a
“substantial showing” that an officer acted in reckless disregard for the truth in obtaining
a warrant, and that the warrant would not have issued but for the offending conduct, a
plaintiff may maintain a Fourth Amendment claim against that officer. Id. at 788–89.
Unlike Liston, this case does not involve a warrant permitting a search of plaintiffs’
residence, but a search conducted pursuant to the probationary status of a third-party not
before the Court. Liston and its progeny simply do not apply to the facts at hand.
2

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

“O”

CIVIL MINUTES - GENERAL
Case No.

CV 10-7589-CAS (PLAx)

Date

July 22, 2013

Title

CRISTINA GUTIERREZ, ET AL. V. COUNTY OF LOS ANGELES, ET
AL.

It is undisputed that as part of Alvaro’s probation, he agreed to “submit person and
property to search or seizure at any time of the day or night by any law enforcement
officer or by probation officer with or without a warrant.” Defs.’ Ex. A. The California
Supreme Court has interpreted this precise language to permit a search of a probationer’s
residence not only without a warrant, but also “without reasonable cause,” so long as the
search is not “undertaken for harassment or . . . for arbitrary or capricious reasons.”
People v. Bravo, 43 Cal. 3d 600, 610 (1987).3 The Ninth Circuit refers to this as a
“suspicionless search condition.” United States v. King, 711 F.3d 986, 988, 988 n. 1
(9th Cir. 2013).
At the time of the incident, the Ninth Circuit had not yet definitively held whether
or not suspicionless probation searches were permissible; until the en banc United States
v. King decision in 2012, where the Ninth Circuit treated probation and parol as the
same. 687 F.3d 1189 (9th Cir. 2012) (per curiam) (en banc). Therefore, because the
Ninth Circuit treated these searches in the same way, the Supreme Court’s decision in
Samson v. California, 547 U.S. 843, 852 (2006)—which provides that no individual
suspicion is required for a parol search to be permissible under the Fourth
Amendment—applied equally to probation searches.4 These decisions rely not on the
doctrine of consent, but on an application of the objective reasonableness test, which

The interpretation of a probation condition issued by a California judge is a
matter of state law; only after determining the scope of a condition does federal law
control the question of whether the condition may be constitutionally applied in a
particular circumstance. See U.S. v. King, 711 F.3d 986, 988 n. 1 (9th Cir. 2013).
3

In any event, the Ninth Circuit ultimately confirmed in 2013 that because a
probationer’s acceptance of a search condition “significantly diminishe[s] [that
individual’s] reasonable expectation of privacy,” the Fourth Amendment permits a
suspicionless search of that individual’s residence. King, 711 F.3d at 990 (quoting
Samson v. California, 547 U.S. 843, 852 (2006)). Before this decision, the Supreme
Court had upheld a search that the police conducted of a probationer’s residence on the
basis of reasonable suspicion, but declined to address whether a “suspicionless” search
of a probationer would pass constitutional muster. United States v. Knights, 534 U.S.
112, 114 (2001).
4

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

“O”

CIVIL MINUTES - GENERAL
Case No.

CV 10-7589-CAS (PLAx)

Date

July 22, 2013

Title

CRISTINA GUTIERREZ, ET AL. V. COUNTY OF LOS ANGELES, ET
AL.

balances “the degree of intrusion on the [individual’s] expectation of privacy against the
degree to which the government needed to conduct the search for the promotion of
legitimate governmental interests.” King, 711 F.3d at 989.
Of course, the foregoing applies only to searches of the probationer’s actual
residence or personal property—not to a residence belonging to third-parties. To protect
the rights of non-probationer third-parties, at the time of this incident, the Ninth Circuit
had squarely held that “before conducting a warrantless search pursuant to a parolee’s
parole condition, law enforcement officers must have probable cause to believe that the
parolee is a resident of the house to be searched.” Motley v. Parks, 432 F.3d 1072, 1080
(9th Cir. 2005) (en banc).5 Therefore, it was clearly established in the Ninth Circuit that
law enforcement officers had to have probable cause that an individual subject to a
search condition actually resided at the residence sought to be searched. See Cuevas v.
De Roco, 531 F.3d 726, 732 (9th Cir. 2008). This requirement is essential to adequately
protect the interests of third-parties, who have not otherwise consented to such a search
condition. Motley, 432 F.3d at 1080.
This probable cause standard has been described as “relatively stringent”; i.e., “the
facts known to the officers at the time of the search must have been sufficient to support
a belief, in ‘a man of reasonable caution’ that [Alvaro] lived at [1015 Rosewood
Avenue].” United States v. Howard, 447 F.3d 1257, 1262 (9th Cir. 2006). However,
[w]here an officer has an objectively reasonable, good-faith belief that he is acting
pursuant to proper authority, he cannot be held liable if the information supplied by other
officers turns out to be erroneous.” Motley, 432 F.3d at 1082. In Motley and its
progeny, the Ninth Circuit has cataloged some of the circumstances that do and do not
give rise to sufficient probable cause.
The officers in Motley conducted a warrantless search of an apartment belonging
to the parolee’s girlfriend, where the apartment was in her name and she paid the rent
and all bills associated with the apartment. 432 F.3d at 1075. There, the officers had
This decision was subsequently overruled in part by the en banc King decision,
but only to the extent that Motley held that parol and probation-based searches are equal
in the eyes of the Fourth Amendment.
5

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

“O”

CIVIL MINUTES - GENERAL
Case No.

CV 10-7589-CAS (PLAx)

Date

July 22, 2013

Title

CRISTINA GUTIERREZ, ET AL. V. COUNTY OF LOS ANGELES, ET
AL.

purposefully gathered all available information as to the parolee’s whereabouts a month
before the search, and one of the officer’s had previously had contact with the parolee at
the address in question. Furthermore, on at least one prior occasion, the parolee and his
grandmother confirmed that he lived at the girlfriend’s address. Id. at 1081.
When the officers actually conducted the search in Motley, the girlfriend
repeatedly informed the officers that the parolee did not live there, and that in fact, he
was in state custody at the time. Refusing to take heed of her contentions, the officers
entered the apartment to conduct their search. The parolee was not home, and thereafter,
the girlfriend filed suit. On appeal, the Ninth Circuit held that the probable cause
requirement was satisfied. Relevant here, the court concluded that once officers have
probable cause to believe that they are at a probationer’s residence, based on objective
evidence, “they [are] entitled to maintain that belief until presented with convincing
evidence that the information they had relied upon was incorrect.” Id. at 1082.
Therefore, the girlfriend’s statement that the parolee did not live at that address, “coming
from a less-than-disinterested source, did not undermine the information the officers
previously had received from their advance briefing.” Id.
Motley stands in contrast to Cuevas v. De Roco, where the officers lacked the
probable cause necessary to believe that a parolee resided at the address in question. 531
F.3d 726 (9th Cir. 2008). In Cuevas, the police searched a residence in Diamond Springs
that had been listed as the “emergency contact address” on a parolee’s parol form in July
2003, seven months before the search in question. Multiple other forms indicated that
the parolee did not, in fact, reside at that address, as he the parolee had more recently
disclosed his address as “Homeless” or at a residence in Placerville. Id. at 729. When
police conducted the search, startled residents of the home—who had recently bought the
house in question from its previous owner—called 911 and struggled with the police
before the misunderstanding was cleared up. Id. at 730–31.
Applying Motley and viewing the facts in the light most favorable to plaintiffs, the
court found that the officers lacked probable cause to believe that the parolee resided at
the location of their search, as the officers understood this address to be only an
“emergency contact address,” and even had a “face sheet” in their possession stating that
the parolee in fact had most recently lived in Placerville. The officers further testified
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

“O”

CIVIL MINUTES - GENERAL
Case No.

CV 10-7589-CAS (PLAx)

Date

July 22, 2013

Title

CRISTINA GUTIERREZ, ET AL. V. COUNTY OF LOS ANGELES, ET
AL.

that they merely “assumed” that this was the parolee’s residence “at some time.” Id. at
732. Because the information suggesting that the parolee might have resided at the
Diamond Springs address “was several years old, uncorroborated by available sources,
and contradicted by two more recent pieces of information,” the court found that no
probable cause existed, and that the officers were not entitled to qualified immunity. Id.
at 733.
Cuevas also addressed four circumstances that the Ninth Circuit had previously
identified as giving rise to probable cause to search a residence suspected of belonging
to a probationer:
First, in each of these cases the parolee did not appear to be residing at any address
other than the one searched. In three of these four cases, the parolee had reported
a different address, but officers had good reason to believe that he was not actually
residing at the reported address.
Second, in each of these four cases, the officers had directly observed something
that gave them good reason to suspect that the parolee was using his unreported
residence as his home base.
Third, in each of these cases the parolee had a key to the residence in question.
Lastly, in two of these cases, either the parolee’s co-resident or the parolee himself
identified the residence in question as that of the parolee.
Id. at 734 (quoting United States v. Howard, 447 F.3d 1257, 1262 (9th Cir. 2006))
(alterations omitted).
Applying these cases and the circumstances identified in Howard, the Court
concludes that the officers reasonably believed they had probable cause to search the
Rosewood Property, entitling them to qualified immunity for the fact of searching the
residence. The officers had a driver’s license, as well as a probation report from less
than a year before the search, indicating that this was Alvaro’s residence. See Pls.’ Ex. G
at 6 (Police Report from October 30, 2009, indicating that the deputies “confirmed via
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

“O”

CIVIL MINUTES - GENERAL
Case No.

CV 10-7589-CAS (PLAx)

Date

July 22, 2013

Title

CRISTINA GUTIERREZ, ET AL. V. COUNTY OF LOS ANGELES, ET
AL.

WPS/CLETS that S/Gutierrez was on probation for marijuana”). Moreover, Alvaro was
stopped in close proximity to the residence. These facts provide the officers with a
strong basis for which to believe that Alvaro resided at this address. It is unclear
whether Alvaro still had a key to the residence, and it is disputed whether Alvaro
claimed this was in fact his residence. But these considerations are less relevant where,
as here, the deputies had an objective basis to believe that the probationer resided at the
address listed in his probation report. And unlike in Motley, the deputies definitively
knew that Alvaro was not presently incarcerated, since they had personally detained him
close to his reported residence.
Even if plaintiffs and Alvaro informed the deputies that he no longer lived at this
address, Motley holds that these verbal protestations are insufficient to amount to the
“convincing evidence” necessary to overcome the officers’ reasonable belief that they
had probable cause to search the residence. 432 F.3d at 1082. Because the deputies
obtained no information that would lead them to believe that Alvaro did not reside at
plaintiffs’ address, other than that allegedly provided by “less-than-disinterested
source[s],” the Court concludes that the deputies did not violate clearly established law
in finding that they had probable cause to believe that Alvaro resided on Rosewood
Avenue. Id.
c.

Search of Hector Jr.’s Separate Apartment and Cristina
and Hector Sr.’s Bedrooms

Further inquiry is necessary to determine if the deputies permissibly entered into
Hector Jr.’s separate apartment at the Rosewood Property, as he alleges. This apartment
is detached from the main house and has a separate, locked entry. Hector Jr. Decl. ¶ 7.
Plaintiffs further testify that no one ever consented to the deputies’ search of this unit.
The parties have not directed the Court to any case confronting the precise
circumstances presented here, where the officers have a single address stemming from a
probation report that leads to two, distinct units on the property. However, some
concrete principles were clearly established at the time of the search in question. As
with other searches, the scope of any probation search is limited to “those areas of a
residence over which the probationer is believed to exercise complete or joint authority.”
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

“O”

CIVIL MINUTES - GENERAL
Case No.

CV 10-7589-CAS (PLAx)

Date

July 22, 2013

Title

CRISTINA GUTIERREZ, ET AL. V. COUNTY OF LOS ANGELES, ET
AL.

People v. Woods, 21 Cal. 4th 668, 681 (1999) (citing United States v. Matlock, 415 U.S.
164 n. 7 (1974)). In addition to this limitation on the places in or at a probationer’s
residence that law enforcement may enter without a warrant, officers must have
“‘reasonable suspicion’ to conclude that the probationer owns, controls, or possesses a
particular item within the probationer’s residence in order to search [or seize] that item.”
United States v. Bolivar, 670 F.3d 1091, 1096 (9th Cir. 2012) (citing United States v.
Davis, 932 F.2d 752, 758 (9th Cir. 1991)).
It does not appear that the deputies had probable cause to search this separate unit
as part of the probation search related to Alvaro, at least without any further inquiry as to
whether this unit in fact belonged to Alvaro. However, the Court need not reach this
question here, as defendants’ search of this unit was justified under the “protective
sweep” doctrine. “A ‘protective sweep’ is a quick and limited search of premises,
incident to an arrest and conducted to protect the safety of police officers or others. It is
narrowly confined to a cursory visual inspection of those places in which a person might
be hiding.” Maryland v. Buie, 494 U.S. 325, 327 (1990). Importantly, the sweep must
last “no longer than is necessary to dispel the reasonable suspicion of danger and in any
event no longer than it takes to complete the arrest and depart the premises.” Id. at
336–37; see Cuevas, 531 F.3d at 735 (finding that opening of a drawer in a residence
during a putative parol search could not be justified under the protective sweep
doctrine).6 All the evidence in the record indicates that the deputies were only in Hector
Jr.’s separate apartment for a short duration of time, which is consistent with the
purposes of a protective sweep. Plaintiffs have not identified any evidence in the record
that the deputies had to force their way into the unit, or that anything was unnecessarily
disturbed inside. Under these circumstances, the deputies’ search is protected under the
protective sweep doctrine.
The Court turns next to the search of Cristina and Hector Sr.’s separate bedrooms.
According to plaintiffs, these bedrooms have separate locks on each door, and Alvaro
never had access to these rooms even when he actually lived at the Rosewood Property.
Moreover, Cristina testifies that during the search, she indicated which room belonged to
These limits were also clearly established at the time of the search in question.
See Cuevas, 531 F.3d at 736 (citing Buie, 494 U.S. at 327).
6

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

“O”

CIVIL MINUTES - GENERAL
Case No.

CV 10-7589-CAS (PLAx)

Date

July 22, 2013

Title

CRISTINA GUTIERREZ, ET AL. V. COUNTY OF LOS ANGELES, ET
AL.

Alvaro, but that the deputies insisted on searching the other rooms in the house as well
for the presence of any money, jewelry, or firearms. Cristina Decl. ¶¶ 8–10.
Under these circumstances, the Court concludes that there are disputed issues of
fact as to whether the officers could have permissibly entered the separate bedrooms of
Cristina and Hector Sr. While the officers likely did not know which room formerly
belonged to Alvaro upon entering the residence, or whether or not Alvaro had access to
these bedrooms, the officers needed at least a “reasonable suspicion” that these
bedrooms were under the complete or joint control of Alvaro before searching them
further. Bolivar, 670 F.3d at 1096. As the Ninth Circuit has noted in an analogous
context, “in some circumstances, questions of ownership, possession, or control may rise
to a level requiring law enforcement officers to inquire into ownership, possession, or
control in order to develop the reasonable suspicion necessary to justify the search.”
United States v. Davis, 932 F.2d 752, 760 (9th Cir. 1991). While the deputies testify that
they discovered .357 caliber ammunition in Alvaro’s room during their initial search,
justifying a further search, this fact remains subject to dispute. Viewing the evidence in
the light most favorable to plaintiffs, there is a disputed issue of material fact as to
whether the deputies had reason to believe that Alvaro exercised the sort of joint control
necessary to give the deputies the right to search these rooms in the house without
further justification.
Nor can these searches of the parents’ bedrooms be justified under the protective
sweep exception to the warrant requirement. According to plaintiffs’ account, any
“sweep” beyond Alvaro’s former room lasted far longer than was necessary to secure the
premises to protect the safety of the deputies and others; the deputies made numerous
trips between Hector Sr. and Cristina’s bedrooms and the living room over an extended
period of time. Therefore, defendants’ motion for summary judgment as to plaintiffs’
Fourth Amendment claims arising out of the search of their bedrooms must be denied.
Viewing the disputed material facts in plaintiffs’ favor, a jury could find that the
deputies’ search of the bedrooms was not a lawful protective sweep.7
Because the Court finds that disputed issues of material fact preclude judgment
for defendants on plaintiffs’ claims based on the search of Cristina and Hector Sr.’s
bedrooms, judgment is also inappropriate on plaintiffs’ claims for the seizure of the rifle
7

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

“O”

CIVIL MINUTES - GENERAL
Case No.

CV 10-7589-CAS (PLAx)

Title

CRISTINA GUTIERREZ, ET AL. V. COUNTY OF LOS ANGELES, ET
AL.
3.

Date

July 22, 2013

Fourteenth Amendment Claims

Plaintiffs’ claims for violations of the Fourteenth Amendment are based on the
deputies alleged taking of Cristina’s jewelry during the search of plaintiffs’ residence, as
well as the allegedly lengthy delay on the part of the deputies in returning Hector Sr.’s
rifles to him.
Under the Fourteenth Amendment, no state may “deprive any person of . . .
property, without due process of law.” As to the alleged taking of Cristina’s jewelry,
plaintiffs allege that this property was taken in the absence of any process, as it was not
taken in accordance with a valid warrant or an exception to the warrant requirement.
The Court concludes that disputed issues of material fact preclude judgment in
defendants’ favor on this claim. Contrary to defendants’ assertions, plaintiffs offer
evidence that Cristina had such jewelry, and that she discovered it missing shortly after
the search. In addition, numerous witnesses testify to a “shoebox” being placed in the
deputies’ car which allegedly resembled one that contained some of Cristina’s jewelry.
As to plaintiffs’ claims related to the firearms, the Ninth Circuit has recognized
that California’s post-deprivation remedy for property that is lawfully seized as part of a
search is constitutionally-adequate under the Fourteenth Amendment. Perkins v. City of
W. Covina, 113 F.3d 1004, 1011 (9th Cir. 1997) rev’d, 525 U.S. 234 (1999), and opinion
withdrawn in part sub nom. Perkins ex rel. Perkins v. City of W. Covina, 167 F.3d 1286
(9th Cir. 1999) (“Perkins”). Under section 1540 of the California Penal Code, one can
obtain the release of property wrongfully held “immediately after seizure” by moving in
the appropriate criminal court for an order releasing the property. Id. at 1011.
Defendants contend that because plaintiffs’ had adequate post-deprivation
remedies available to them, their Fourteenth Amendment claims necessarily fail. But
this misunderstands the nature of plaintiffs’ claims. Here, the Superior Court granted
plaintiffs’ motion for a return of their property, but plaintiffs allege that the sheriffs
department refused, in a variety of ways, to comply with the court’s order from the time
when plaintiffs first brought it to their attention on August 10, 2010, until the firearms
and handgun retrieved from these bedrooms, and alleged taking of Cristina’s jewelry.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

“O”

CIVIL MINUTES - GENERAL
Case No.

CV 10-7589-CAS (PLAx)

Date

July 22, 2013

Title

CRISTINA GUTIERREZ, ET AL. V. COUNTY OF LOS ANGELES, ET
AL.

were finally returned to them on March 27, 2011. The lawfulness of the California postdeprivation process is based in part on the principle that “an officer seizing and holding
property under a search warrant does so on behalf of the court; possession by the officer,
is in contemplation of the law, possession by the court.” Oziel v. Superior Court, 223
Cal. App. 3d 1284, 1292–93 (1990). Therefore, if the deputies maintained possession of
plaintiffs’ property after a court order instructed the deputies not to do so, the deputies
actions call into question the constitutional legitimacy of the post-deprivation process as
applied in this case. There is no reason to believe this principle applies with any less
force in the context of warrantless probation searches. Therefore, there the Court finds
that remains a disputed issue of material fact as to whether defendants’ alleged
obfuscation and delay in returning plaintiffs’ property amounts to a violation of the Due
Process Clause of the Fourteenth Amendment.
4.

Conspiracy to Violate Constitutional Rights8

To prove a claim for a conspiracy to violate plaintiffs’ constitutional rights, a
plaintiff must “demonstrate the existence of an agreement or ‘meeting of the minds’ to
violate constitutional rights.” Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d
1283, 1301 (9th Cir. 1999 (quotation omimitted). “Such an agreement need not be overt,
and may be inferred on the basis of circumstantial evidence such as the actions of the
defendants.” Id. Each participant in the conspiracy need not know the precise details of
the plan for liability to attach, “but each participant must at least share the common
objective of the conspiracy.” Crowe v. Cnty. of San Diego, 608 F.3d 406, 440 (9th Cir.
2010) (quoting United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1541
(9th Cir. 1989) (en banc)). “Whether defendants were involved in an unlawful
conspiracy is generally a factual issue and should be resolved by the jury, so long as
there is a possibility that the jury can infer from the circumstances (that the alleged
conspirators) had a ‘meeting of the minds’ and thus reached a understanding to achieve
the conspiracy's objectives.” Mendocino Envtl. Ctr., 192 F.3d at 1301–02 (quotation
omitted).
This claim is also brought under state law; defendants challenge plaintiffs’ ability
to prove the merits of their claim under either body of law, but the analysis is the same
for both claims.
8

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

“O”

CIVIL MINUTES - GENERAL
Case No.

CV 10-7589-CAS (PLAx)

Date

July 22, 2013

Title

CRISTINA GUTIERREZ, ET AL. V. COUNTY OF LOS ANGELES, ET
AL.

Defendants contend that plaintiffs offer “no evidence” in support of their
conspiracy claim and that judgment in defendants’ favor is appropriate. However, the
Court finds that a reasonable jury could infer that there was an ongoing conspiracy
among defendants to violate plaintiffs’ constitutional rights.9 Plaintiffs have not offered
any direct evidence of a conspiracy, but the evidence in the record, taken in a light most
favorable to them, supports an inference that defendants were engaged in a conspiracy to
deprive plaintiffs’ of their property, which persisted even after the Superior Court issued
an order for the return of such property. Hector Jr. and Hector Sr. offer detailed
declarations explaining how they were allegedly “ignored, avoided, and lied to about
their valuables,” and that defendants engaged in a sham review of the incident that
served only to legitimize the deputies’ conduct without any further investigation,
including the detention of Hector Jr. See Opp’n at 6–7. A jury could infer the existence
of a conspiracy from these facts.
Although other inferences are possible from the foregoing allegations, “[t]he
possibility that other inferences could be drawn that would provide an alternate
explanation for the [defendants’] actions does not entitle them to summary judgment” on
the conspiracy claim. Mendocino Envtl. Ctr., 192 F.3d at 1303. Plaintiffs’ testimony is
sufficient to raise an inference that the deputies “share[d] the common objective of the
conspiracy” to cover up their actions. Franklin v. Fox, 312 F.3d 423, 441 (9th Cir.
2002). Accordingly, the Court denies defendants’ motion for summary judgment as to
plaintiffs’ claim for conspiracy under federal law.

Defendants’ reliance on Guyton v. Phillips is misplaced. 606 F.2d 248, 250 (9th
Cir. 1979). This case stands for the proposition that “[a] ‘deceased’ is not a ‘person’ for
the purposes of 42 U.S.C. §§ 1983 and 1985,” and therefore a deceased individual has no
claim for alleged violations “of the deceased’s civil rights which occurred after his
death.” This case says nothing about whether a living person can maintain a conspiracy
claim based on conduct that occurred after the initial search at issue here.
9

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

“O”

CIVIL MINUTES - GENERAL
Case No.

CV 10-7589-CAS (PLAx)

Title

CRISTINA GUTIERREZ, ET AL. V. COUNTY OF LOS ANGELES, ET
AL.
B.

Date

July 22, 2013

State Law Claims
1.

Compliance with the California Government Claims Act (Cal.
Gov’t Code §§ 910, 911.2, 945.4)

The Court has already found that plaintiffs complied with the requirements of the
California Government Claims Act (“GCA”) with respect to their state law claims for
damages, see Dkt. No. 25 at 10, and defendants offer no principled reason why the Court
should revisit this conclusion on this motion. As the Court noted previously, plaintiffs’
government claim “gives the LASD notice of all of the state causes of action filed in the
complaint through reference in Hector Jr.’s ‘Description of damages,’” which provided
LASD “an ample opportunity to investigate and assess the validity of the claim.” Id.
Notice is the purpose of the GCA, not the elimination of meritorious claims. See
Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Auth., 34 Cal. 4th 441,
446 (2004). Plaintiffs’ claim also “clearly indicates that Hector Jr. is filing the claims on
behalf of his mother and father.” Dkt. No. 25 at 10. Accordingly, the Court declines to
depart from its prior ruling and again finds that plaintiffs gave adequate notice of their
claims.
2.

Immunity Under California Government Code §§ 821.6 and 815.2

Defendants also renew their defense under California Government Code sections
821.6 and 815.2, which provide that “[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 §821.6.10 Courts have interpreted this section to immunize government
employees from liability where: “(1) the officers were employees of the County; (2) the
plaintiffs’ injuries were caused by acts committed by the officers to institute or prosecute
a judicial or administrative proceeding; and (3) the conduct of the officers while
Section 815.2 extends this immunity to a public entity for any “injury resulting
from an act or omission of an employee of the public entity where the employee is
immune from liability.” Paterson v. City of Los Angeles, 174 Cal. App. 4th 1393, 1404
(2009).
10

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

“O”

CIVIL MINUTES - GENERAL
Case No.

CV 10-7589-CAS (PLAx)

Date

July 22, 2013

Title

CRISTINA GUTIERREZ, ET AL. V. COUNTY OF LOS ANGELES, ET
AL.

instituting or prosecuting the proceeding was within the scope of their employment.”
Cnty. of Los Angeles v. Superior Court, 181 Cal. App. 4th 218, 228 (2009) (quotations
and alterations omitted). Although the California Supreme Court has not extended this
immunity beyond claims of malicious prosecution, the Courts of Appeal have interpreted
these immunities to apply broadly to any “actions taken in preparation for formal
proceedings.” Amylou R. v. Cnty. of Riverside, 28 Cal. App. 4th 1205, 1209–10 (1994);
see Tucker v. City of Richmond, Case No. 12-1829, 2012 WL 2571314, at *5 (N.D. Cal.
July 2, 2012) (discussing the narrow versus broad view of the immunity afforded by
section 821.6). Under any interpretation, the immunity granted by section 821.6, “as it
applies to police conduct, is limited to actions taken in the course or as a consequence of
an investigation.” Blankenhorn v. City of Orange, 485 F.3d 463, 488 (9th Cir. 2007).
Even if the Court accepts the broad view of section 821.6 immunity, there are
disputed issues of material fact as to the lawfulness of the deputies’ probation
compliance search, assuming this is a form of “investigation” for which immunity may
be granted. Therefore, the Court finds that further resolution of the factual disputes
identified herein is required before finally adjudicating the defendants’ claim to
immunity under section 821.6 and 815.2.
3.

False Imprisonment

“The elements of a tortious claim of false imprisonment are: (1) the
nonconsensual, intentional confinement of a person, (2) without lawful privilege, and (3)
for an appreciable period of time, however brief.” Easton v. Sutter Coast Hosp., 80 Cal.
App. 4th 485, 496 (2000). According to Hector Jr., he was detained in the patrol car for
over two hours without his consent. The question remains as to whether the officers had
lawful privilege to do so. Defendants offer two arguments as to why Hector Jr.’s
detention was lawful.
First, defendants contend that the detention was lawful under California Penal
Code § 847(b)(1), which provides that “[t]here shall be no civil liability on the part of . . .
any peace officer . . . acting within the scope of his or her authority, for false arrest or
false imprisonment” arising out of an arrest that “the peace officer, at the time of the
arrest, had reasonable cause to believe . . . was lawful.” However, the deputies would
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

“O”

CIVIL MINUTES - GENERAL
Case No.

CV 10-7589-CAS (PLAx)

Date

July 22, 2013

Title

CRISTINA GUTIERREZ, ET AL. V. COUNTY OF LOS ANGELES, ET
AL.

not have had “reasonable cause” to believe that the detention was lawful if in fact the
reason for the detention was to retaliate for Hector Jr.’s exercise of his First Amendment
rights. Because the Court has determined that disputed issues of material fact preclude
awarding judgment in defendants’ favor on Hector Jr.’s claim of retaliation under the
First Amendment, defendants’ motion for summary judgment under Penal Code section
847(b)(1) is also denied.
Second, defendants maintain that they are immune from suit by reason of Civil
Code § 43.55. This section extends immunity to “any peace officer who makes an arrest
pursuant to a warrant of arrest regular upon its face,” so long as the officer “in making
the arrest acts without malice and in the reasonable belief that the person arrested is the
one referred to in the warrant.” Id. Given the conflicting testimony in the record as to
why Hector Jr. was taken to the patrol car, see Depo. of Deputy Reyes 99:11–18,
151:22–152:23, when the deputies actually performed a search for warrants in Hector
Jr.’s name, and whether there was in fact an “in county” or “out of county” warrant for
Hector Jr. that the deputies acted on, see Depo. of Deputy Fernandez at 50:12–51:3, the
Court cannot resolve the issue of section 43.55 immunity on this motion. See, e.g., Gant
v. Cnty. of Los Angeles, 765 F. Supp. 2d 1238, 1264 (C.D. Cal. 2011) (finding that
disputed issues of material fact precluded summary judgment on the issue of immunity
under section 43.55).
4.

Conversion / Intentional Infliction of Emotional Distress

Defendants argue that plaintiffs’ conversion claim must be summarily adjudicated
in their favor because plaintiffs have “absolutely no evidence” that deputies took jewelry
from their home. Cristina testifies that after the deputies left, she allegedly discovered
that her sapphire necklace, earrings, and ring, black amethyst ring and earrings, and pearl
earrings and ring were missing. Cristina Decl. ¶ 32. She then looked for the rest of her
gold jewelry, which was also missing. Id. ¶ 33. Some of this jewelry was stored in a
shoebox, which a number of witnesses testify they saw the deputies take to their patrol
car. Hector Jr. thought that the deputies may have taken the jewelry to determine if it
was stolen, but the deputies deny that any jewelry was removed from the house. Because
these material facts are disputed and the Court may not make credibility determinations
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

“O”

CIVIL MINUTES - GENERAL
Case No.

CV 10-7589-CAS (PLAx)

Date

July 22, 2013

Title

CRISTINA GUTIERREZ, ET AL. V. COUNTY OF LOS ANGELES, ET
AL.

at this stage of the proceeding, the Court denies defendants’ motion for summary
judgment on plaintiffs’ conversion claim.
The Court also denies defendants’ motion for summary judgment on plaintiffs’
IIED claim. The Court cannot decide as a matter of law that defendants “acted
reasonably” and lawfully, as they contend, during a lawful probation compliance search;
these material facts remain to be adjudicated at trial. Accordingly, defendants’ motion is
denied as to this claim.
C.

Claims Against Captain Matt Dendo

The Court separately addresses Captain Dendo’s motion for summary judgment as
to all claims asserted against him. Plaintiffs contend that Dendo may be held liable as
the “supervisor and LASD executive” overseeing the actions of his subordinates at the
Lennox station. For claims of supervisory liability under section 1983, supervisors are
not subject to vicarious liability or respondeat superior, but are liable only for their own
conduct. Jeffers v. Gomez, 267 F.3d 895, 9915 (9th Cir. 2001). A defendant may be
liable as a “supervisor” under section 1983 where “there exists either (1) his or her
personal involvement in the constitutional deprivation, or (2) a sufficient causal
connection between the supervisor’s wrongful conduct and the constitutional violation.”
Starr, 652 F.3d at 1207 (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)).
For example, a plaintiff may seek to hold a supervisor liable “for deliberate
indifference based upon the supervisor’s knowledge of and acquiescence in
unconstitutional conduct by his or her subordinates.” Starr v. Baca, 652 F.3d 1202, 1207
(9th Cir. 2011). Alternatively, a supervisor may be held liable “for his own culpable
action or inaction in the training, supervision, or control of his subordinates; for his
acquiescence in the constitutional deprivation; or for conduct that showed a reckless or
callous indifference to the rights of others.” Starr, 652 F.3d at 1208 (quotation omitted).
To prove that a supervisor was personally involved in a constitutional deprivation, there
must be evidence of the supervisor’s “integral participation” or “fundamental
involvement” in the offending conduct that led to the violation. See Torres v. City of
Los Angeles, 548 F.3d 1197, 1206 (9th Cir. 2008); Blankenhorn v. City of Orange, 485
F.3d 463, 481, n. 12 (9th Cir. 2007).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

“O”

CIVIL MINUTES - GENERAL
Case No.

CV 10-7589-CAS (PLAx)

Date

July 22, 2013

Title

CRISTINA GUTIERREZ, ET AL. V. COUNTY OF LOS ANGELES, ET
AL.

Plaintiffs do not contend that Captain Dendo is personally responsible for the
conduct of the deputies at the search itself; there is no dispute that he was not present at
the search or was otherwise directing the conduct of the deputies on the scene. Dendo
testifies that he had no personal involvement in the alleged constitutional violations—
whether the traffic stop, search of the residence, or return of any seized property. Decl.
of Capt. Dendo ¶¶ 7–9. In response, plaintiffs argue that Dendo approved at least two
letters bearing his signature during the post-search review process, one related to the
investigation of the search and alleged theft of the jewelry, another pertaining to the
handling of the Superior Court order for the return of property. See Depo. of Capt.
Dendo at 150:6–151:13; 152:3–7 (Q: “[A]t the time that this issue of the return of
property was raised by the Gutierrez family, you obviously had your hand in it in some
part; correct? A: Yes.”).
Viewing the facts in the light most favorable to plaintiffs, there remains disputed
issues of material fact as to whether Dendo is liable to plaintiffs on their federal claims.
In particular, the Court cannot determine, based on the record before it, whether Captain
Dendo had some involvement in and direct oversight of the alleged actions of his
subordinates in failing to properly investigate the plaintiffs’ complaints of theft after the
search, as well as failing to timely return plaintiffs’ property. Although Dendo bears no
liability for the search itself, a rational jury could find that Dendo is liable for Fourth and
Fourteenth Amendment violations arising out of the alleged theft of their jewelry, as well
as Fourteenth Amendment violations arising out of the failure to return Hector Sr.’s
firearms in a timely fashion. Accordingly, defendant Dendo’s motion for summary
judgment as to the claims asserted against him is denied.
V.

CONCLUSION

In accordance with the foregoing, defendants’ motion for summary judgment is
GRANTED in part and DENIED in part, as noted herein.
IT IS SO ORDERED.
00
Initials of Preparer

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:

03

CMJ

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