Corser v. Merced et al

Filing 171

ORDER re motions for summary judgment 100 101 107 , signed by Judge Oliver W. Wanger on 1/26/09. (Coffman, Lisa)

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 I. INTRODUCTION v. COUNTY OF MERCED, et al. Defendants. DAVID C. CORSER, Plaintiff, 1:05-CV-00985 OWW DLB ORDER RE MOTIONS FOR SUMMARY JUDGMENT FILED BY LARRY GONZALES (DOC. 101), MARIA GONZALES (DOC. 100), AND THE COUNTY OF MERCED, ET AL., (DOC. 107).

Plaintiff David Corser ("Plaintiff" or "Corser") brings this suit pursuant to Title 42, Section 1983, of the United States Code, alleging that he was a victim of: (1) retaliation for

exercising his First Amendment rights; (2) unlawful arrest and excessive force; and (3) a conspiracy to violate his constitutional rights. He also brings supplemental claims under

state law: assault, battery, and the use of excessive force in effecting his arrest; false arrest and false imprisonment; violations of his constitutional rights for which liability can be imposed pursuant to Section 52.1 of the California Civil Code; and negligent training and supervision. Before the court for decision are three separate motions for

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summary judgment filed by (a) Defendant Larry Gonzales, (b) Defendant Maria Gonzales, and (c) the County of Merced ("County") and various officers and employees of the County.

III.

BACKGROUND1

The events in this case took place in the small town of Planada, located within Merced County, California. The County

operates a Community Center in Planada within a County Park. County's Statement of Undisputed Facts ("CSUF") #2. Starting in

approximately 1994, the Planada Community Action Board ("PCAB"), a local citizens organization, leased the Planada Community Center from the County. A separate, private, citizens organization, the Planada Community Development Corporation ("PCDC") operated an afterschool program for kids in the Planada Community Center. In late

2003, Plaintiff was hired as "senior coordinator" for the PCDC after-school program. CSUF #9. The PCDC is a nonprofit The record does not

corporation with a Board of Directors.

reveal a complete PCDC Board roster for the relevant time period, but it appears to be undisputed that Defendants Larry Gonzales,

As a threshold matter, Plaintiff objects generally to "every exhibit" submitted in support of the County's motion for summary judgment, as the Declaration of Michael Mason, to which these documents were attached, was not made under the penalty of perjury. See Docs. 165 and 108. There is no dispute as to the authenticity, completeness, or content of the documents, most of which are excerpts from deposition transcripts taken in this case. Mr. Mason's inadvertent failure to submit the documents under the penalty of perjury is not a basis for their exclusion. Plaintiffs' objection is OVERRULED. 2

1

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Ruth Stone, and possibly Maria Gonzales, as well as several friends and associates of Plaintiff, including Kathleen Lopez and Bryant Owens, were members of the PCDC Board during the relevant time period.2 During the relevant time period, Defendant Gloria Keene was the Merced County Supervisor representing the Planada area. Keene was a founding member of the PCDC. CSUF #11. In 2003,

Keene helped the PCDC obtain grant funding for the after-school program through the nonprofit organization "Save the Children." CSUF #13.

A.

PCDC's Use of the Community Center.

The County asserts that it never approved of the PCDC's use of the Community Center, and, upon learning of the arrangement, became concerned because it did not know who was running the program, whether its operators were permitted to run an afterschool program, and/or whether insurance would protect the County. CSUF #6. The County expressed its concerns to the PCAB,

but claims it made no attempt to evict the after-school program. CSUF #7. Plaintiff maintains that the County was aware of PCDC's use of the Building and the existence of the after-school program, pointing to evidence indicating that Supervisor Keene was present

Plaintiff's roommate, Jesus Colmenero, was also a member of the PCDC Board in August 2002. Defendants asserted during oral argument that Colmenero was no longer a member of the board as of 2004, but present no evidence concerning his removal or departure. 3

2

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during meetings where the PCDC's use of the Community Center was discussed as early as 2002, Pltf's Ex. 1007 (PCDC Board Meeting Minutes for Aug. 12, 2002), and other evidence indicating that the County gave the PCDC pre-clearance for the after-school Program as early as 2002, see, e.g., Pltf's Exs. 1006 (Memorandum of Understanding between the Merced County Community Action Agency and the PCDC, dated Oct. 17, 2002, permitting the use by PCDC of the Community Center for after-school programs). At some point in 2004, Paul Fillebrown, the Director of the County's Public Works Department, received a letter from the PCDC requesting that it be allowed to lease the community facility. CSUF #15. Public Works Department staff met with representatives CSUF #17.

of both PDCD and PCAB to discuss use of the building.

B.

January 2004 Planada Association Lawsuit.

In January 2004, the San Joaquin Raptor/Wildlife Rescue Center and the Planada Association, of which Plaintiff, Kathleen Lopez, and Bryant Owens were members, filed suit against the County of Merced challenging the environmental review, or lack thereof, of the Planada Specific Plan under the California Environmental Quality Act ("CEQA"). PSUF #1.3

Plaintiff submits Exhibit 1016, a cost analysis produced by Defendant Demitrios Tatum, which appears to be a log of the amount of time spent by local government personnel complying with requests for information from citizens groups. For each request, there is an entry for the amount of time allocated for the project and an entry for the amount of time actually spent on the project. There are two entries, dated January 27, 2004, for requests made by "SJ Raptor Rescue Center, Protect Our Water, etc.," which indicate that one hour was 4

3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Corser disputes Stone's assertion that she refused to allow him to add an item to the agenda because it had already been completed and mailed, pointing to pages 427 and 428 of his deposition, but nothing on those pages refutes her assertions regarding the agenda. 5
4

C.

May 6, 2004 MAC Meeting.

On May 6, 2004, Ruth Stone presided over a meeting of yet another organization, the Planada Municipal Advisory Committee (hereinafter "MAC") held at the Planada Community Center. Defendants indicated at oral argument that, unlike the PCAB and PCDC, members of the MAC are appointed by the County to advise the County on land use issues. of the MAC. Larry Gonzales was also a member Prior to the meeting, Stone

Gonzales Depo. at 94.

received a telephone call from Corser asking if he could add an item to the MAC's May 6, 2004, agenda. CSUF # 18. She advised Stone

him that the agenda had already been completed and mailed. states that Corser made no further comment about the agenda. CSUF #19.4 Stone arrived for the May 6, 2004 meeting to find that

Corser and others had relocated the MAC meeting to a larger room in the Planada Community Center and had set up recording devices. CSUF #20, 21. Stone objected to the recording devices, but

allocated for each of the two requests, but more than sixteen hours was actually spent complying with the requests. Plaintiff characterizes this document as evidence that "Demitrios Tatum began investigating the cost to local government associated with certain activists...." Doc. 142 at 2. Plaintiff fails to explain why there is anything improper or unlawful about a local government keeping track of how much time staff spends responding to requests for information.

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Supervisor Keene informed her that California's Brown Act permitted such recording. CSUF #22.

Stone was confronted with a large number of people wanting to speak at the meeting, but decided to defer visitor comment until agendized matters had been concluded. CSUF #23. It is

estimated that some 60-80 people were present at the meeting, hoping to speak on behalf of the after-school program. CSUF #24.

It was unusual for so many people to attend the committee meetings. CSUF #25.

Early in the program, Corser approached the microphone and was asked by Ms. Stone to wait, which he refused to do. He was

persuaded by others in his group to relinquish the microphone. CSUF #26. Supervisor Keene made her report to the Board and CSUF #27, 28. Upon

then, as was her practice, left the meeting.

leaving the meeting, Keene states that she went home and called the County Chief Executive Officer, Demetrios Tatum, to express her concern that Ruth Stone was having a difficult time with the meeting. CSUF #29. Specifically, Keene was concerned that Stone CSUF #31.5

had lost control of the meeting.

Tatum acknowledges that he received a telephone call from Keene on May 6 regarding Keene's concern that there was a problem at the meeting. Tatum recalls that Keene tried to reach Sheriff

Mark Pazin with her concerns, but called Tatum when she could not get through to Pazin. Tatum Depo. at 15-17. Tatum then called

The County asserts that Keene was concerned because Stone began yelling at people in the audience. CSUF #30, 31. Corser disputes this, stating that there was no yelling and screaming during the meeting. Corser Decl. at ¶14. 6

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Sheriff Pazin to relay Keene's concerns about a disturbance at the meeting. meeting. CSUF #33. Pazin dispatched a deputy to the

CSUF #34.

Deputy Ralph Zyskowski recalls being dispatched to the center on May 6, 2004. CSUF #36. Upon arriving, he did not see CSUF

anything outside, nor did he observe a disturbance inside. #37.

Zyskowski recalls the street being congested with cars, so

he drove his vehicle onto the sidewalk to park it near the building. CSUF #39. At least one other witness recalls

Zyskowski screeching his brakes and driving his car up onto the grass with his lights shining on the building, and called the arrival "dramatic" and "inappropriate." Lopez Depo. at 108-109.

Another witness recalls Zyskowski entering the meeting room with his baton drawn, inquiring as to the location of the disturbance. Owens Depo. at 107-08. A second officer, Deputy Parrish, was dispatched to the center as well. Parrish recalls that when he arrived, everyone CSUF #49, 50.

was gone, and that he did not enter the building.

Corser disputes this, stating that Parrish did enter the Community Center when he and other members of the public were present. Corser Decl. at ¶16.

Corser claims that he was intimidated by the arrival of Deputies Parrish and Zyskowski. CSUF #48. Corser sent a letter

to Sheriff Blake complaining about the presence of the officers at the MAC meeting. Corser Decl. at ¶15. Sheriff Blake informed

Corser that he spoke with the individuals involved about the complaint. Id.

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D.

The Promise of County Help for the PCDC.

During this general time period, Keene identified a grant for economic development for the PCDC, but it was contingent upon the requesting entity having a business office. CSUF #51.

Plaintiff points to statements made by Larry Gonzales in answers to interrogatories propounded by Bryant Owens in a state case, Bryant Owens v. Larry Gonzales, et al., Case No. 147956, filed in Merced County Superior Court. Pltf's Ex. 1002. In those

answers, Gonzales stated that Keene told him about the $50,000 grant, but felt she could not work with two current members of the PCDC Board, Katie Lopez or Bryant Owens. Gonzales believed

that Keene would only help the PCDC go after the grant if there "was someone representing the corporation with whom she felt she could work." Id. at Response #8. Mr. Gonzales also testified at

his deposition that he spoke with a County employee named "Mike", who indicated that the County would be willing to work with PCDC to resolve its need for a space within which to run its programs, but only if the PDCD board was made up of people who would not "bully people around," "talk about supervisors," or file "lawsuits against the sheriff's association." at 146.6 L. Gonzales Depo.

The County objects that these statements are hearsay as to the County. Gloria Keene is a party opponent, so the statements are not hearsay as to her, but no evidence and/or authority has been given to attribute Ms. Keene's speech to the County or that the County had any policy relevant to Plaintiff's allegations. As to the statement made by "Mike," it is also hearsay as to the County because it has not been established that Mike speaks on behalf of the County. The County's objections are SUSTAINED. 8

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Gonzales believed Katie Lopez and Bryant Owens were not people Keene or the County would work with. Initially, Gonzales

did not view Plaintiff in this light, but later began to group Corser with Lopez and Owens. Id. at 146-47. However, there is

no evidence in the record indicating that Keene, Mike, or any other County official or employee discussed Corser with Gonzales or in any way indicated that they wanted Corser removed from his position. Plaintiff also claims that Ruth Stone told him that she was extremely bothered by Bryant Owens and that anyone associated with Bryant Owens was "going down." CSUF #60. Stone CSUF #61.

specifically denies having said such things to Corser.

E.

Attempted Removal of Bryant Owens and Katie Lopez from the Board.

On June 17, 2004, Larry Gonzales attempted to have the PCDC 16 Board remove Bryant Owens and Katie Lopez as members. 17 Katie Lopez disputes the propriety of the procedures followed by 18 Gonzales that night and asserts that she and Owens were never 19 properly voted off the board. 20 Katie Lopez also believes that Larry Gonzales attempted to 21 use Merced County Sheriff's Deputies to intimidate members of the 22 PCDC at this meeting. 23 Corser recalls that on this date, Maria Gonzales, Larry 24 Gonzales' wife, told Plaintiff that Bryant Owens and Katie Lopez 25 had been "taken care of" and that Plaintiff would be "next to 26 27 28 9 Lopez Depo. at 36-38. CSUF #63. CSUF #56.

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go."

Corser Depo. at 464.7

F.

Request by Certain Members of the PCDC Board that Plaintiff Take Time Off.

Alicia Rodriguez, another member of the PCDC Board asserts 5 that on the on the same date, the PCDC Board requested that David 6 Corser take time off due to "inappropriate behavior." 7 oblige. 8 Corser contended there was a conspiracy going on and that he and 9 others were being watched by the FBI. 10 that he was acting erratically or that he was asked to take time 11 off. 12 13 G. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In an example of one of the numerous, inappropriate evidentiary objections raised in these papers, Larry Gonzales asserts that Corser's recollection of what Maria Gonzales said to him is inadmissible hearsay and is "irrelevant to any of the issues or claims against defendant Larry Gonzales." Doc. 159-2 at 8. This evidence is not barred by the rule against hearsay. Plaintiff is competent to testify about statements made directly to him. The statements are also relevant to the existence of a conspiracy to retaliate against Plaintiff for exercising his First Amendment Rights. This objection is OVERRULED. 10
7

He did not

CSUF #65.

Among other things, witnesses state that

CSUF #64.

Corser denies

Corser Decl. at ¶4.

County Recommends Leasing the Community Center to the PCAB not the PCDC.

On June 22, 2004, Fillebrown reported to the County Board of Supervisors that the staff recommended the lease be renewed with the PCAB, not the PCDC, because the after-school program conflicted with community use and the PCAB was more financially stable than the PCDC. CSUF #69. On June 22 the Board of CSUF #71.

Supervisors approved a lease with the PCAB.

1 2

H.

Plaintiff's Purported Termination by Larry Gonzales and Certain Other members of the PCDC Board.

Also on June 22, 1004, several members of the PCDC Board met 3 with Plaintiff to address concerns about his job performance. 4 CSUF #72. 5 who was present at the time,8 recalls that Corser was instructed 6 to work 6 hour days during normal business hours and urged to 7 focus his energies toward financial issues, grant opportunities, 8 and program management. 9 concerns or instructions were imparted to him on that day. 10 Corser Depo at 402-403. 11 On June 24th Corser failed to appear for work during normal 12 business hours and failed to notify anyone in the office or any 13 current Board member of his absence. 14 asserts that Corser's absence was therefore "unexcused." 15 #74. 16 that he was not notified of the requirement that he be present at 17 the Community Center during regular business hours. 18 On the morning of June 24th, Corser attended a hearing 19 concerning Jesus Colmenero, who, according to Corser, was then a 20 member of the PCDC Board. 21 roommate. 22 that the hearing concerned criminal molestation charges against 23 Mr. Colmenero and was therefore unrelated to PCDC business. 24 #75. 25 business because it impacted whether or not a sitting board 26 27 28 It is not entirely clear from the record which other members of the PCDC Board were present at this meeting. 11
8

Diana Westmoreland, another member of the PCDC Board

CSUF #73.

Corser denies that any such

CSUF #74.

Alicia Rodriguez CSUF

Corser denies that his absence was unexcused on the ground

CSUF #74.

Colmenero also happened to be Corser's Defendants maintain

CSUF #75; Corser Depo. at 196-97.

CSUF

Corser maintains that the hearing was relevant to PCDC

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member would be able to return to his duties. 345-46.

Corser Depo. at

On that same afternoon, Corser, along with Katie Lopez, CSUF #76.

was in Fresno where they had a meeting with the FBI. Corser asserts that this was PCDC business also. ¶5.

Corser Decl. at

According to Larry Gonzales, later that afternoon at the Community Center, he informed Corser that he was being terminated from his position with the PCDC. CSUF #77. Also present at the

time were Alicia Rodriguez, Maria Gonzales, and Ruth Stone. Corser Depo. at 495. Larry Gonzales also asserts that he asked

Corser to surrender his keys to the Community Center building, but Corser refused. CSUF #79. Corser maintains that Gonzales

merely asked him to resign and never mentioned terminating him. Corser Depo. at 404. terminated. Corser did not believe he had been

Id. at 494-96.

I.

Corser's Arrest.

Shortly before his purported termination, Corser changed the alarm code to the Community Center building. CSUF #80. As a

result, those present in the PCDC office on the evening of the 24th were unable to set the building alarm. CSUF #81. That

evening, Maria Gonzales contacted the Merced County Sheriff's office to advise them that an employee had been terminated and had refused to return his key. building. CSUF #82. She requested observation of the

She was afraid that Corser or someone else CSUF #83.

might break into the building.

Maria Gonzales maintains that she did not give the police Corser's name. Doc. 100 at 6. The Merced County Sheriffs 12

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Department dispatch log suggests otherwise, stating that was fired but refused to turn over his keys.

"David

The [Reporting

Party] stated [David] has access to the safe and offices. [Reporting Party] is having the locks changed tomorrow." Ex. 1014. Volunteer Deputy Sheriff Kevin Smallwood received a radio call to watch out for an individual in and around the Planada Community Center, who was not authorized to be there. CSUF #88. Pltf's

Smallwood went to the building and saw a person inside looking out the window. CSUF #90.9 Smallwood called Deputy Zyskowski to CSUF #91.

let him know there was a person inside.

When Zyskowski arrived at the building, he had knowledge of the report that an employee had been terminated and refused to relinquish his keys. Zyskowski suspected that Corser was CSUF #93.

unlawfully within the building.

Corser taped the entire contact between himself, Deputy Zyskowski, and Volunteer Smallwood at the Community Center. #94; see also County's Exhibit 60. Corser claims that he CSUF

returned to the Community Center the night of the 24th to secure the building as he would in the normal course of the day. #96. CSUF

His purpose in having the tape-recorder with him was "to

have evidence on tape if Gonzales was continuing to harass him." CSUF #98. Corser's recording depicts much of the interaction between himself, Volunteer Smallwood, and Deputy Zyskowski that evening:

Corser asserts Smallwood would have been unable to see him due to dark tinted windows. Decl. at ¶10. 13

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Corser: The time is 9:15 and I came to turn the alarm off. There was a Merced County, uh, patrol car outside shining the lights in. I found the door to the office locked. Uh, the alarm was off. There was several -- there was a light on in the bathroom that I needed to turn off. And I will set the alarm now. (Footsteps) I'm checking the backside door, see that the dead bolt is locked. (Footsteps) And I'm setting the alarm. (Alarm beeps) And leaving the building. Uh, community volunteer car out -- outside the building and shining the light at me. "Hi. You work for Merced County?" "Yeah. How you doing?"

9 Smallwood: 10 Corser: 11 Smallwood: 12 Corser: 13 Smallwood: 14 Corser: 15 16 17 18 19 20 21 22 23 24 Corser: 25 Smallwood: 26 Corser: 27 28 Smallwood: "Are you suppose to be in here? suppose to be in here?" 14 Are you "What's your name, please?" "Are you suppose to be in here?" "What is your name?" Corser: "Actually, I'm -- I'm on my way home. If you are going to detain me, then you need to tell me that." Smallwood: "Yes, I am then. right here for a second." You are going to stay Smallwood: "Yeah. you for a minute." Corser: "Okay. I have a deputy coming to talk to "Are you an officer?" "Corser. Okay. Hold on." "David Corser." "What's yours?" "Good. What's your name?"

Could you identify yourself?" Turn that off."

Smallwood: Corser:

"What do you want?

"No.

I'm leaving this on."

Smallwood: "I just need you to hang tight right here for a second. Somebody wants to talk to you."

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Corser:

"Kevin Smallwood?" "Are you suppose to be in here?" I was turning the alarm We're going to

Smallwood:

Corsr: "I'm an employee here. system on."

Corser: "We are going to verify that. verify that in just a second."

Smallwood: "Okay. Actually, I -- I need to get home. But if you're detaining me, then you'll have to it --" Smallwood: "Please stay right here."

8 Corser: 9 Smallwood: 10 Corser: 11 12 13 14 15 16 17 18 Smallwood: 19 Corser: 20 Smallwood: 21 Corser: 22 Smallwood: 23 Corser: 24 25 26 27 28 Smallwood: the place." Corser: "You have keys? Let me see the keys to "No. I'm leaving." "Sir, stop." "You know what. I'm done. I'm leaving." "Don't worry about it." "From who?" "Yes." Smallwood: "I was told there was not suppose[d] to be anybody in the building." Corser: "Who were you told that by?" "Just hang tight." "Officer--" "Yes, you do." "Actually, I don't think I do."

Smallwood: Corser:

"Who told you that?" "Hang tight."

Smallwood:

Corser: Did you receive a phone call regarding someone in the building?"

"These keys belong to me." "Do they belong in there?"

Smallwood: Corser:

"Yes, they do." 15

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Smallwood: second."

"Okay.

Just stand right here for a

Corser: "Could -- I'd like to request a California Highway patrolman, please." Smallwood: "Just hang tight."

Corser: "Officer Smallwood, I'd like to -- I'd like to request a California Highway patrolman." Smallwood: Stop." "Just hang tight. Just hang tight. Stop.

Corser: "Excuse me. I'd -- I'd like to request a California Highway patrolman, please. I've already said this to Officer Smallwood twice." VOICE: (Unintelligible)

Corser: "No. I'd like to request that. It's a request. I feel that I'm being unfairly treated by the -- by the Merced Police Department and by the community volunteer sheriff. I'd like to request immediately a California Highway patrolman, please." Zyskowski: "Sure. on you, sir?" I can do that. Do you have any ID

Corser: "Not in -- no, I'm not presenting ID. I'd like you to -- to -- to -- to contact a California Highway patrolman, Officer Zyskowski." Zyskowski: "That's Deputy Zyskowski." 9-1-3 (Unintelligible) "He came out of the door

18 DISPATCHER: 19 20 21 22 Zyskowski: 23 24 25 26 27 Zyskowski: 28 16 "Yes, we are." Corser: "Okay. I'd like --" (Unintelligible) "Is there a California Highway patrolman on the way?" Zyskowski: "Just hang tight." (Unintelligible) ... "sir." Smallwood: (Unintelligible) and I saw that."

Corser: "Yes, I did give him -- I gave you -- I told you I'm an employee here."

Corser: "You know what. I'm leaving. If you are going to detain me, you have to tell me."

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Corser:

"Okay.

Are you putting me in cuffs?" Stop."

Zyskowski:

"Stop.

Corser: "Are you putting me in handcuffs? I'm on my way home. I'm requesting a California Highway patrolman." "Okay. I need to get to a telephone." Zyskowski: Corser: "Okay. Hold on."

"Are you detaining me?" "Yes, I am." Then you need to read me my rights

Zyskowski: Corser: then."

"Okay.

Zyskowski: 10 Corser: 11 Zyskowski: 12 13 14 15 16 Zyskowski: 17 Corser: 18 Zyskowski: 19 Corser: 20 Zyskowski: 21 22 23 24 25 26 27 28 Zyskowski: curb."

"Huh?"

"You need to read me my rights." "I have the right to detain you." *** "Okay. Have a seat. Get up here on the

Corser: "I'm requesting a California Highway patrolman." "Get up on the curb, please." Huh?"

"Are you detaining me? "Yes." "Are you detaining me?

For what cause?"

"Because I don't know if you belong --"

Corser: "I already told Officer Smallwood that I'm an employee here." Zyskowski: "Okay. prove that." I want to see your ID so we can

Corser: "Who -- uh, uh, what caused your response to this building at this moment?" Zyskowski: Corser: "Excuse me?"

"What caused you to respond to this building?" "You need to just have a seat right now. 17

Zyskowski:

1 2 3

Okay?

Have a seat."

Corser: "Whoa. You got -- you are way beyond your rights, way beyond your rights." Zyskowski: "Way beyond our rights?"

4 Corser: 5 6 7 Corser: 8 9 10 11 12 13 14 15 16 17 18 19 20 Zyskowski: 21 Corser: 22 Zyskowski: 23 Corser: 24 Zyskowski: 25 Corser: 26 27 28 Zyskowski: "Okay. David, were you just recently terminated from this place?" Corser: "Absolutely not." 18 "David Corser. C-O-R-S-E-R." "David what?" "Sure. David Corser." "Could I ask you your name?" "I -- I -- no, I don't." "Okay. Do you have your ID on you, sir?" Corser: "No. If you need to cuff me, then cuff me and take me away." Zyskowski: "Cuff you and take you away?" I've Zyskowski: "Are you obstructing my duties? I'm requesting you to have a seat here, sir. Can you have a seat?" Zyskowski: "I'm a police officer with the state -within the state of California." Corser: "Okay." "Okay. And I'm telling you I'm an employee." Zyskowski: "Well, sir, I have done nothing but treat you with respect and everything else. I'm requesting you to sit down there." "Yeah."

Zyskowski: "I'm with the sheriff's department. I'm requesting you to have a seat. Are you obstructing my duties?" Corser: "I'm requesting -- I've requested a California Highway patrolman."

Corser: "If that's what you need to do. requested --"

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Zyskowski: Corser:

"You were not terminated from this place?"

"Absolutely not."

Zyskowski: "Okay. You need to have a seat for me, David. Okay? Have a seat." Corser: "I've requested a California Highway patrolman." Zyskowski: "This is the Merced County Sheriff's Department jurisdiction. I've explained to you nicely the first time. You are to have a seat. Okay? Can you have a seat?" Corser: in." "Uh. No. If you need to take me, take me I have no choice."

Zyskowski: Corser:

"Okay.

"Okay." "Sir." No. This is my property." Don't."

Zyskowski: Corser:

"No.

Zyskowski: Corser:

"Sir, don't.

"This is my property." "Don't. Do not hit me with that. Help. Help. Help." Stop.

Zyskowski: Stop." Corser:

"Help.

Help.

18 19 20 21 22 23 24 Zyskowski: 25 26 27 28 Corser: "California Highway Patrol. 9-1-1. California Highway Patrol. 9-1-1. California Highway Patrol." Zyskowski Depo. at 144-150. According to Zyskowski, at some point toward the end of this 19 "Give it up." Zyskowski: recorder." "All right. Don't hit me with that tape

Corser: "Help. California highway Patrol. Call them immediately. California Highway Patrol. California Highway Patrol. California Highway Patrol." Zyskowski: "Step it up." 9-1-1. 9-1-1. 9-1-1. 9-1-1.

Corser: "CHP. CHP. 9-1-1. 9-1-1."

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interaction, Zyskowski attempted to handcuff Corser, at which time Corser began to move his shoulders rapidly. believed this was an attempt to escape. Zyskowski During these

CSUF #104.

shoulder movements, Zyskowski was hit in the groin with Corser's tape-recorder, causing Zyskowski pain. on top of Volunteer Smallwood. Both men ended up falling After he was

CSUF #105.

handcuffed, Corser was placed into Zyskowski's patrol unit. Zyskowski recalls that Corser would not put his legs inside the unit voluntarily. CSUF #107. During the altercation, Zyskowski

got a scrape on his arm that did not require medical attention. CSUF #109. Corser denies that he made any rapid shoulder movements or other movements, denies that he delayed or obstructed the investigation, and denies that he attempted to escape in any way while being handcuffed. Corser Decl. at ¶19. He also denies

hitting Office Zyskowski with his tape recorder in the groin. Id. Corser claims he sustained a "bloody knee and bloody shoulder" during the arrest and that a nurse at the jail bandaged him up. Corser Depo. at 286.

Later that evening, the Sheriff's Office called Maria Gonzales, informed her Corser had been arrested, and asked her to come down to the Community Center to identify him. CSUF #111.

Maria Gonzales reports that she and Rodriguez went to the Community Center at the request of the police. CSUF #112.

20

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IV.

STANDARD OF DECISION

Summary judgment is warranted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Fed. R. Civ. Pro. 56(c);

California v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998). Therefore, to defeat a motion for summary judgment, the nonmoving party must show (1) that a genuine factual issue exists and (2) that this factual issue is material. Id. A genuine

issue of fact exists when the non-moving party produces evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party. See Triton Energy Corp. v. Square

D Co., 68 F.3d 1216, 1221 (9th Cir. 1995); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252-56 (1986). The evidence

must be viewed in a light most favorable to the nonmoving party. Indiana Lumbermens Mut. Ins. Co. v. West Oregon Wood Products, Inc., 268 F.3d 639, 644 (9th Cir. 2001), amended by 2001 WL 1490998 (9th Cir. 2001). Facts are "material" if they "might

affect the outcome of the suit under the governing law." Campbell, 138 F.3d at 782 (quoting Liberty Lobby, Inc., 477 U.S. at 248). The moving party bears the initial burden of demonstrating the absence of a genuine issue of fact. F.3d 1070, 1076 (9th Cir. 2001). Devereaux v. Abbey, 263

If the moving party fails to

meet this burden, "the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial." 21 Nissan Fire & Marine

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000). However, if the nonmoving party has the burden of

proof at trial, the moving party must only show "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the

moving party has met its burden of proof, the non-moving party must produce evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party. Corp., 68 F.3d at 1221. Triton Energy

The nonmoving party cannot simply rest

on its allegations without any significant probative evidence tending to support the complaint. Devereaux, 263 F.3d at 1076.

[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. Celotex Corp., 477 U.S. at 322-23. "In order to show that a genuine issue of material fact exists, the nonmoving party must introduce some `significant probative evidence tending to support the complaint.'" Rivera v.

AMTRAK, 331 F.3d 1074, 1078 (9th Cir. 2003) (quoting Liberty Lobby, Inc., 477 U.S. at 249). If the moving party can meet his

burden of production, the non-moving party "must produce evidence in response....[H]e cannot defeat summary judgment with allegations in the complaint, or with unsupported conjecture or 22

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

conclusory statements."

Hernandez v. Spacelabs Med., Inc., 343 "Conclusory allegations

F.3d 1107, 1112 (9th Cir. 2003).

unsupported by factual data cannot defeat summary judgment." Rivera, 331 F.3d at 1078.

II. A.

ANALYSIS

Threshold Issue: Timeliness of Plaintiff's Opposition.

Plaintiff's oppositions to the pending motions for summary judgment were due on December 29, 2008. Although Plaintiff did

file some documents in connection with his opposition before the deadline, some were filed in early hours of the morning of December 30, 2008, while others were filed on December 31, 2008. See Docs. 136-154. At oral argument, Plaintiffs' counsel represented that his failure to meet the filing deadlines was inadvertent. He

apparently tried to file documents as fast as he could on the evening of the deadline, but had some difficulty uploading exhibits electronically. This resulted in some of his filings

being dated early in the morning of December 30, 2008. Plaintiff's counsel similarly claimed to have inadvertently forgotten to file certain other documents until December 31, 2008. Although counsel's excuses are not particularly compelling, the delay was short and it does not appear that any prejudice resulted. filings. A district court has discretion to consider late Jenkins v. Commonwealth Land Title Ins. Co., 95 F.3d

791, 795 (9th Cir. 1996); see also Roush v. Lemke, 2007 WL 1309538, *1 (W.D. Wash. May 2, 2007); Bean v. Shapiro, 2006 WL 23

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

3411875, *2 (N.D. Cal. Nov. 27, 2006).

The late-filed opposition

documents will be considered, but Plaintiff's counsel is warned that no further late filings will be permitted.

B.

Larry Gonzales' Motion for Summary Judgment.

Defendant Larry Gonzales argues: (1) that he is entitled to summary judgment on the section 1983 First Amendment retaliation claim because there is no evidence that (a) he was a state actor or (b) that he interfered with Plaintiffs' assertion of First Amendment Rights; (2) he cannot be held individually liable for the actions of the PCDC Board; (3) he is entitled to summary judgment as to the California Civil Code Section 52.1 claim because there is no evidence that he intimidated or coerced Plaintiff in a manner that interfered with Plaintiff's civil rights; and (4) there is no competent evidence to support Plaintiff's allegations of a conspiracy in violation of section 1983.

1.

State Action Requirement.

In a January 10, 2006 decision, Doc. 35, the district court rejected Larry Gonzales' argument, made in the context of a motion to dismiss, that he was not a state actor for purposes of liability under section 1983: Defendant Gonzales characterizes the Planada CDC as a "private, non-profit corporation that develops projects to benefit Planada." Mot. to Dismiss at 4. He argues that the only conduct of his about which the Plaintiff has complained is allegedly violating Plaintiff's federal and state civil rights by terminating Plaintiff's employment from the Planada CDC. Mot. to Dismiss at 6. This conduct stems from Defendant Gonzales' activity for a private corporation, and no 24

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state action is present, which bars a Section 1983 claim against Gonzales. Plaintiff first objects to the narrow way in which Defendant Gonzales characterizes the allegations against him. Plaintiff reiterates that Defendant Gonzales participated in a broad-based campaign of harassment, of which Plaintiff's eventual dismissal was only a part. Plaintiff notes Gonzales' concession that the Planada CDC is a "quasi-governmental entity." Mot. in Opp. at 2; see Mot. to Dismiss at 13 (arguing that the Planada CDC's meetings and activities fall under the purview of California Code of Civil Procedure Section 425.15, the "Anti-SLAPP" statute). Although generally inapplicable to private parties, a Section 1983 claim can lie against a private party when he is a willful participant in joint action with the State or its agents. Peng v. Mei Chin Penghu, 335 F.3d 970, 980 (9th Cir. 2003). In Brunette v. Humane Society of Ventura County, an opinion cited by neither side, the Ninth Circuit stated that proof of a conspiracy between the state and a private party to deprive another of his constitutional rights can satisfy the joint-action test for Section 1983 liability. Brunette, 294 F.3d 1205, 1211 (9th Cir. 2002). The complaint, the factual averments of which the court accepts as true for the purposes of deciding a motion to dismiss, see ASW v. Oregon, 424 F.3d 970, 974 (9th Cir. 2005), alleges in substance that Defendant Gonzales conspired with the other Defendants, themselves allegedly state actors, and acted in concert with them to deprive Plaintiff of his constitutional rights. The Second Cause of Action particularizes this claim to the deprivation of First Amendment free-speech and petition rights. These allegations are sufficient to satisfy the color-of-state-law requirement. Doc. 35 at 6-7 (emphasis added). Defendant Larry Gonzales now argues on summary judgment that there is no evidence to support the allegation that he is a "state actor" for purposes of section 1983. A private actor may

be deemed to have engaged in state action for purposes of section 1983 under certain circumstances. See Villegas v. Gilroy Garlic

Festival Ass'n, 541 F.3d 950, 954-55 (9th Cir. 2008). Under familiar principles, even a private entity can, in certain circumstances, be subject to liability under section 1983. See Sutton v. Providence St. Joseph 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Medical Ctr., 192 F.3d 826, 835-36 (9th Cir.1999). In Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982), the Supreme Court created a two step analysis for determining* whether or not there was state action by a private actor sufficient to establish liability for a constitutional tort. The first inquiry was "whether the claimed deprivation has resulted from the exercise of a right or privilege having its source in state authority." Id. at 939. The second was "whether, under the facts of this case, ... [the] private parties, may be appropriately characterized as `state actors.' " Id. In Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288 (2001), the Court introduced a multi-factored test. Id. at 295-300. The inquiry is a general one: "[S]tate action may be found if, though only if, there is such a `close nexus between the State and the challenged action' that seemingly private behavior `may be fairly treated as that of the State itself.' " Id. at 295 (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974)). Some of the factors to consider in determining whether there is a "close nexus" are: (1) the organization is mostly comprised of state institutions; (2) state officials dominate decision making of the organization; (3) the organization's funds are largely generated by the state institutions; and (4) the organization is acting in lieu of a traditional state actor. See id. at 295-99, 121 S.Ct. 924. Id. (parallel citations omitted). Plaintiff first asserts that, under state law, the Planada CDC, of which Larry Gonzales is a member, is in effect a "quasi-governmental entity," possessing powers, duties, and responsibilities similar to a municipal government.10 Gonzales actually concedes this as "undisputed." Larry

Doc. 159-2 at

Corser cites Damon v. Ocean Hills Journalism Club, 85 Cal. App. 4th 468, 473-79 (2000), in which a California appellate court fond that a homeowner's association board operated as a quasi-governmental entity for the purposes of determining whether allegedly defamatory speech before the homeowners association constituted speech before a "public forum" under California's anti-SLAPP statute, Cal. Code Civ. Pro. § 425.16. Damon is not relevant to the key issue here: whether Gonzales, by virtue of his membership in the Planada CDC, should be deemed a state actor for purposes of section 1983. 26

10

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#21.

But this concession is not sufficient on its own to satisfy It is not enough that the entity Under section 1983, a

the state action requirement.

be quasi-governmental under state law.

private actor may be deemed a state actor if it performs functions traditionally and exclusively reserved to the States, such as when the private actor holds elections, or governs all attributes of a town. 149, 159-160 (1978). See Flagg Bros., Inc. v. Brooks, 436 U.S. Plaintiff has offered no evidence or

argument explaining why the activities of the Planada CDC, a nonprofit corporation, satisfy this test. The complaint survived Larry Gonzales' motion to dismiss because Plaintiff "allege[d] in substance that Defendant Gonzales conspired with the other Defendants, themselves allegedly state actors, and acted in concert with them to deprive Plaintiff of his constitutional rights." Doc. 35 at 7. In response to a

motion for summary judgment, Plaintiff must point to specific facts that support his allegations. Here, although Plaintiffs'

opposition filings do not point to where in the record relevant evidence might be located,11 an independent review of Plaintiff's

The only other argument concerning the state action requirement contained in Plaintiff's opposition is: There is a triable issue of fact as to whether Defendant Larry Gonzales caused the wrongful arrest of Plaintiff which would constitute a violation of his civil rights. Defendant Larry Gonzales knew he did not have authority to fire Plaintiff and lied to police to have him arrested. The actions of Defendant Larry Gonzales on June 24 2004, constitute state action. Doc. 154 at 2. a state actor. But, this does not explain why Larry Gonzales is 27

11

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citations to the record reveals some arguably relevant evidence. The evidence, viewed in a light most favorable to Plaintiff, suggests that Bryant Owens and Kathy Lopez were removed from the PCDC Board, at least in part, because they refused to "work with" the County. Larry Gonzales stated, in interrogatories filed in a

state case brought by Bryant Owens, that during the relevant time period, Keene identified a $50,000 grant for PCDC, but would only help the PCDC go after the grant if there "was someone representing the corporation with whom she felt she could work." Pltf's Ex. 1002 at Response #8. Gonzales indicated that Keene Id. Mr. Gonzales

felt she could not work with Lopez or Owens.

also testified at his deposition that someone named "Mike" who worked for the County said that the County would give PDCD some time to acquire a new place to operate, but only if PCDC "worked with them." L. Gonzales Depo. at 146. Gonzales interpreted this

to mean that the County wanted to work with people who would not "bully people around ... talk about supervisors" or file "lawsuits against the sheriff's association." Id. In other

words, the County wanted to "work as human beings" and Gonzales believed that Katie Lopez and Bryant Owens were not acting like human beings. Id. The implication of this testimony, if given

weight by a trier of fact, is that someone at the County indicated to Gonzales that if he did not get rid of Owens and Lopez, the County would not help the PCDC. Gonzales testified

that, although he did not initially group Plaintiff with Owens and Lopez, he came to view him in a similar, negative light. Id.

Plaintiff cites to absolutely no evidence, however, that any County actor made any statements to Gonzales regarding Plaintiff, 28

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implied that the County wanted Plaintiff fired, or suggested that County assistance would be easier to obtain if Plaintiff was removed from his position. There is simply no evidence of a

conspiracy between any County employee or officer concerning Plaintiff. Plaintiff also asserts that Defendant Ruth Stone told Plaintiff that she was extremely bothered by Bryant Owens and that anyone associated with Bryant Owens was "going down." #60; Corser Depo. at 94. such things to Corser. CSUF

Stone specifically denies having said CSUF #61. Even viewing the facts in a

light most favorable to Plaintiff, this in no way satisfies the state action requirement as to Larry Gonzales. First, Stone's

status as the chairperson of the MAC, an advisory board constituted by the County, does not transform her every act and/or statement into "state action." Plaintiff stated in his

deposition testimony that Stone made these comments while discussing her belief that the "Planada Association12 was the worst thing that ever happened to [Planada]." 95. Corser Depo at 94-

Plaintiff does not draw any connection between these Id. Even if Stone made

comments and Stone's role in the MAC.

these comments while presiding over a MAC meeting, Plaintiff has not identified any evidence demonstrating that the MAC is a state actor. There is no evidence that the MAC had any authority over

County decision-making, or that it satisfies the state action requirement in any other way. The mere fact that MAC members may See Darr

be appointed by the County is insufficient on its own.
12

The Planada Association was one of the organizations that filed suit against the County. 29

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

v. Town of Telluride, Colorado, 495 F.3d 1243, 1256-57 (10th Cir. 2007) (suggesting without deciding that actions of citizens advisory board made up of town-appointed community volunteers without any legislative or public policy decision-making authority would not constitute state action). Defendant Larry Gonzales' motion for summary judgment as to the Second Cause of Action for First Amendment Retaliation in violation of Section 1983 is GRANTED. This conclusion applies

with equal force to Plaintiffs' seventh cause of action for conspiracy in violation of section 1983.13 It is not necessary

to address Gonzales' alternative arguments regarding the section 1983 claims.

2.

Individual Liability of Larry Gonzales.

Larry Gonzales next argues that he cannot be held individually liable for the actions of the PCDC Board, citing California Corporations Code § 7350(a), which provides that no member of a nonprofit corporation can be "personally liable for the debts, liabilities, or obligations of the [nonprofit] corporation." He also cites Zumbrun v. University of Southern

Plaintiff also attempts to advance 42 U.S.C. § 1985 as an alternative basis for his claims, because it is mentioned in the body of his complaint. See Compl. at ¶43. Section 1985 only applies when a plaintiff alleges membership in a protected class. Holgate v. Baldwin, 425 F.3d 671, 676 (9th Cir. 2005) (explaining that section 1985 has only been extended to non-racial groups if the courts have designated the class in question "a suspect or quasi-suspect classification requiring more exacting scrutiny or ... Congress has indicated through legislation that the class requires special protection."). There is no such allegation or evidence in this case. 30

13

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California, 25 Cal. App. 3d 1, 10 (1972), which applied the predecessor to § 7350(a) to a breach of contract case between a university and a student, and Gantman v. United Pacific Ins., Co., 232 Cal. App. 3d 1560 (1991), which applies § 7350 to bar members of a nonprofit association from bringing suit against the association's insurer. These authorities do support the

conclusion that Mr. Gonzales cannot be held liable under state law for actions taken by the board as a whole. However,

Corporations Code 7350(a) does not bar Plaintiff's claims that Mr. Gonzales took actions as an individual which violated state law. In this case, it is disputed whether Mr. Gonzales undertook

the allegedly unlawful conduct on his own, or as one member of a voting Board. This conclusion is largely academic, however,

because Mr. Gonzales is entitled to summary judgment as to all of the claims against him on other grounds.

3.

Liability under California Civil Code Section 52.1.

California Civil Code section 52.1(b) provides a private cause of action against anyone who "interferes by threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of [California.]" This provision is part of

the Tom Bane Civil Rights Act, the primary purpose of which is to address hate crimes perpetrated against minorities. Stamps v. Section

Superior Court, 136 Cal. App. 4th 1441, 1447-48 (2006).

31

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52.1 requires "[1] an attempted or completed act of interference with a legal right, accompanied by [2] a form of coercion." Jones v. Kmart Corp., 17 Cal. 4th 329 (1998). As a matter of

law, no claim exists under the Bane Act for alleged constitutional violations that, by their nature, can only be perpetrated by a state actor against a minority. For example, in

Jones, Kmart employees were aggressive in their detention of Jones for alleged shoplifting. Nevertheless, the plaintiff in

Jones could not state a claim under Section 52.1 based on the prohibition against unreasonable search and seizure because Section 52.1 does not apply to private actors' purported violations of legal guarantees that only limit government power, such as the Fourth Amendment. Id. at 334.

Corser does not address the section 52.1 claim in his opposition. Here, Corser's only bases for a section 52.1 claim

against Larry Gonzales are related to First and Fourth Amendment protections, which are limitations upon government power, not private citizens. Larry Gonzales' motion for summary judgment as

to the section 52.1 claim is GRANTED.

C.

Maria Gonzales' Motion for Summary Judgment.

Defendant Maria Gonzales argues: (1) the 1983 claim for first amendment retaliation "lacks merit" on a variety of grounds; (2) the 1983 claim for unlawful arrest and detention lacks merit because (a) the report she made to police was in good faith, and (b) she was not present at the CDC office when Plaintiff was arrested; (3) Plaintiff's state law claim for false arrest (a) lack merit for the same reasons his federal claim 32

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

lacks merit, and (b) are barred by the statute of limitations; (4) Plaintiff's California Civil Code § 52.1 claim fails for the same reasons his federal claims fail; and (5) there is no evidence to support Plaintiff's conspiracy claims against Ms. Gonzales. Doc. 100.

1.

State Action Requirement.

As was the case with Larry Gonzales, Maria Gonzales is a private actor. To state a claim against her under section 1983,

Plaintiff must demonstrate a sufficient connection between her conduct and state action. The only evidence Plaintiff presents

is his own deposition testimony that Maria Gonzales told him that Bryant Owens and Katie Lopez had been "taken care of" and that Plaintiff would be "next to go." Corser Depo. at 464.

Presumably, Plaintiff presents this in an effort to demonstrate Maria Gonzales' participation in a conspiracy to violate his rights. Although, viewed in a light most favorable to Plaintiff,

this statement demonstrates hostility toward Plaintiff, it fails to demonstrate Maria Gonzales' connection to any conspiracy involving state actors to violate Plaintiff's constitutional rights. Gonzales. Accordingly, no section 1983 claim can stand against Ms. Her motion for summary judgment as to the First,

Second and Seventh causes of action is GRANTED.

2.

Plaintiff's State Law Claims for False Arrest.

Ms. Gonzales argues that Plaintiff's state law claim against her for false arrest lacks merit because: (a) she cannot be held

liable for false arrest and/or false imprisonment because the 33

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

report she made to police was in good faith; (b) she was not present at the scene of the arrest; and (c) the statute of limitations expired before Plaintiff filed his complaint in this case.

a.

Good Faith Belief in Truth of Police Report.

Ms. Gonzales argues that she cannot be liable for false arrest and/or imprisonment because she had good faith belief in the truth of the information she gave to the police, citing Peterson v. Robinson, 43 Cal. 2d 690, 695 (1954), Wilson v. Los Angeles County, 21 Cal. App. 3d 308, 316-17 (1971), and Turner v. Mellon, 41 Cal. 2d 45, 58 (1953). These cases once stood

generally for the proposition that a defendant who took no active part in an arrest could not, in the absence of malice, be held liable for reporting suspected criminal activity to police in good faith. Were this line of authority still valid, it would

not help Ms. Gonzales, because there is evidence of her malice toward Plaintiff in this case. However, this entire line of authority has been disapproved by Hagberg v. California Federal Bank FSB, 32 Cal. 4th 350 (2004), in which the California Supreme Court addressed whether California's litigation privilege, set forth in California Civil Code § 47, protected reports made to police with malice (i.e., in bad faith). Hagberg departed from earlier precedent, holding

that even a deliberately false police report is absolutely privileged when the reporting party contacts law enforcement to report suspected criminal activity and instigate a response from law enforcement. Id. at 361-62. 34 Ms. Gonzales does not raise

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

California Civil Code § 47, so it is not appropriate to apply it to the pending motion. This oversight is not material to the

outcome of this claim, however, as Ms. Gonzales is entitled to summary judgment on other grounds.

b.

Ms. Gonzales' Presence at the Scene of the Arrest.

Ms. Gonzales next argues that the section 1983 claim against her for unlawful arrest and imprisonment is meritless because she was not present at the time he entered the PCDC offices on the evening of his arrest, nor was she present when he was arrested. Ms. Gonzales supports this argument, not with any authority, but by disputing several assertions Plaintiff made in his responses to her Special Interrogatories. But, even if Ms. Gonzales'

version of the events is true, she does not explain how this renders the claim against her meritless. Plaintiffs' central

allegation is that she and others took actions that caused his unlawful arrest, not that they actually effected the arrest. motion for summary judgment on the false arrest/imprisonment claim cannot be granted on this ground. Her

c.

Statute of Limitations.

The statute of limitations for state law claims of false arrest and false imprisonment is one year from the date of accrual. Cal. Code Civ. Pro § 340(3). Plaintiff was arrested on

June 24, 2004 and released from custody on June 25, 2004, but did not file his complaint in this matter until July 29, 2005, more than one year after his release from prison. Plaintiff did not

35

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address Ms. Gonzales' statute of limitations argument in his opposition. Cal. Gov. Code § 945.3 provides for the tolling of the statute of limitations for any claim against a police officer or public entity employing a police officer while charges against plaintiff are pending in superior court.14 However, section

945.3 does not apply to claims against private defendants, such as Ms. Gonzales. Plaintiff presents no basis for tolling the

statute of limitations in this case, and none is apparent from the record. Ms. Gonzales' motion for summary adjudication on the

statute of limitations ground is GRANTED.

3.

California Civil Code § 52.1 Claim.

As is the case with Mr. Gonzales, Ms. Gonzales is entitled to summary judgment on the California Civil Code § 52.1 claim, because Plaintiff's allegations are based entirely on the First and Fourth Amendments, which proscribe conduct by state actors, not private individuals. See Jones, 17 Cal. 4th at 334.

D.

County of Merced, et al.'s, Motion for Summary Judgment.

The County of Merced moves for summary judgment on all claims against it, its officers, and its employees.

The County does not raise the statute of limitations as a defense to this claim. No party has pointed to evidence concerning whether any charges were ever filed and/or when any such charges were resolved. 36

14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1.

Section 1983 Claim for Illegal Warrantles Arrest Against the County, Smallwood, and Zyskowski.15 a. Deputy Zyskowski.

Plaintiff alleges that Defendant Zyskowski is liable under section 1983 for violating his Fourth Amendment right to be free from unlawful arrest without a warrant or probable cause. Zyskowski argues the arrest was supported by probable cause and asserts the defense of qualified immunity. The Supreme Court recently summarized the purpose of qualified immunity: The doctrine of qualified immunity protects government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. The protection of qualified immunity applies regardless of whether the government official's error is "a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact." Groh v. Ramirez, 540 U.S. 551, 567 (2004) (Kennedy, J., dissenting) (citing Butz v. Economou, 438 U.S. 478, 507 (1978) (noting that qualified immunity covers "mere mistakes in judgment, whether the mistake is one of fact or one of law")). Because qualified immunity is "an immunity from suit rather than a mere defense to liability ... it is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis deleted). Indeed, we have made clear that the "driving force" behind creation of the qualified immunity doctrine was a desire to ensure that " `insubstantial claims' against government officials [will] be resolved prior to discovery." Anderson v. Creighton, 483 U.S. 635, 640, n.2 (1987). Accordingly,

The First Cause of action also names Does 1 through 15, but Plaintiff has pointed to no evidence implicating any additional persons. 37

15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

"we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam). Pearson v. Callahan, --- S. Ct. ---, 2009 WL 128768 (Jan. 21. 2009) Deciding qualified immunity normally entails a two-step analysis. Saucier v. Katz, 533 U.S. 194, 201 (2001). A court

must ask whether, taken in the light most favorable to the plaintiff, the facts alleged show the officers' conduct violated a constitutional right. Id. In addition, a court must also

inquire whether the right violated was "clearly established" by asking whether a reasonable officer could believe that the defendant's actions were lawful. Id. District courts have

discretion to determine the order in which these inquiries take place. Pearson, --- S. Ct. ---, 2009 WL 128768.

The traditional summary judgment approach should be used in analyzing the first step of the Saucier analysis: A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the [official's] conduct violated a constitutional right? Where the facts are disputed, their resolution and determinations of credibility are manifestly the province of a jury. Wall v. County of Orange, 364 F.3d 1107, 1110-11 (9th Cir. 2004) (internal citations and quotations omitted). In the second step,

the court must ask whether it would be clear to a reasonable official that his conduct was unlawful in the situation confronted. Although this inquiry is primarily a legal one,

where the reasonableness of the officer's belief that his conduct was lawful "depends on the resolution of disputed issues of fact

38

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

... summary judgment is not appropriate."

Wilkins v. City of

Oakland, 364 F.3d 949, 1110-11 (9th. Cir. 2003) (citing Saucier, 533 U.S. at 216 (Ginsburg J., concurring)). The key question here is whether the facts, taken in the light most favorable to Corser, show that Zyskowski violated Corser's right to be free from arrest without probable cause. Probable cause is determined under the particular factual context of each case. Illinois v. Gates, 462 U.S. 213, 232 (1983).16

Here, it is appropriate to find that the Deputies believed in good faith the report that a disgruntled, recently terminated ex-employee of the PCDC had refused to return the keys to the Community Center and might be attempting to enter the premises without permission. Specifically, the Merced County Sheriff's "David was fired but refused to turn

dispatch log states that: over his keys.

The [Reporting Party] stated [David] has access [Reporting Party] is having the locks Plaintiff offers no

to the safe and offices. changed tomorrow."

Pltf's Ex. 1014.

evidence to suggest that the Deputies' had any reason to believe the report was false. Rather, Zyskowski had reason to believe a

man named David had been fired from his employment at the Community Center, that he had refused to return his keys, and that he had access to the safe. In the course of attempting to determine whether Corser had committed a crime, the recording reveals Zyskowski requested that

The County also cites a number of cases concerning detentions that stop short of arrest. But, because Plaintiff's claim is limited to unlawful arrest, it is not necessary to address pre-arrest detention here. 39

16

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Corser remain in the area and stay