Evans et al v. HBC Investment Group, Inc. et al

Filing 14

MEMORANDUM, OPINION and ORDER granting 120 Motion for Summary Judgment signed by Judge Oliver W. Wanger on 12/29/2010. (Lundstrom, T)

Evans et al v. HBC Investment Group, Inc. et al

Doc. 14

1 2 3 4 5 6 7 8 9 10 11 12 13 YOSEMITE CHEVRON, et al., 14 15 16 17 18 19 20 21 22 23 24 25 26 Defendants. vs. Plaintiff, TIFFANY FENTERS, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV-F-05-1630 OWW/DLB MEMORANDUM DECISION GRANTING DEFENDANTS FUNG AND CASSABON & ASSOCIATES, LLP'S MOTION FOR SUMMARY JUDGMENT (Doc. 120) IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Defendants Victor Fung and Cassabon & Associates, LLP (hereafter "the Cassabon Defendants") move for summary judgment in connection with Plaintiff Tiffany Fenters' allegations against them. In the First Amended Complaint (FAC), Tiffany names as defendants Yosemite Chevron, Abbco Investments, LLC, and Robert Abbate (the Abbate Defendants); Gordon Spencer, former District Attorney for the County of Merced, Merle Wayne Hutton, Supervising Investigator for the District Attorney's Office for Merced County, and Merced County (the Merced County Defendants); 1

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and Victor K. Fung, CPA and Cassabon & Associates (the Cassabon Defendants).1 The FAC alleges that the Abbate Defendants and the

Cassabon Defendants are "liable under federal law based on the joint activity and/or conspiracy [they] engaged in ... with individuals action under color of law and within the course and scope of their duties." A. ALLEGATIONS OF FIRST AMENDED COMPLAINT.

The FAC alleges that Tiffany was hired by Yosemite Chevron on June 6, 2002 as a cashier/stock clerk; that Tiffany was instructed to balance the cash register and clear the register of any cash in excess of $150 at the end of her shift; that, shortly after beginning her employment, she and other employees were required, as a condition of continued employment, to reimburse Yosemite Chevron for funds lost as a result of "drive-offs" where customers did not pay in advance and drove off without payment; that Tiffany was not being paid extra for overtime worked; that another Yosemite Chevron employee expressed inappropriate and unwelcome sexual interest in Tiffany; that when Tiffany brought this to Abbate's and Yosemite Chevron's management, no effective remedial action was taken; that other inappropriate conduct occurred at Yosemite Chevron, including theft and drug dealing; that Tiffany complained about being required to reimburse Yosemite Chevron for "drive-offs" and other defalcations, not

The FAC also named Erin M. McIlhatton, CPA, of Cassabon & Associates as a Defendant. McIlhatton was dismissed with prejudice by Stipulation and Order filed on October 10, 2007. (Doc. 109) 2

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being paid overtime, being forced to work overtime against her will, being sexually harassed, workplace theft, and working in a place where drugs were being used; that Tiffany left her employment with Yosemite Chevron on March 26, 2003 because of this ongoing pattern of illegal activity and misconduct; that Tiffany was forced to return to Yosemite Chevron without compensation to put her decision to quit in writing; and that Tiffany was not paid all of the compensation to which she was then legally entitled. The FAC alleges:

23. In connection with Tiffany's separation from employment in March 2003, Abbate went to the Office of the District Attorney for the County of Merced and met with Spencer and Hutton in an effort to get false and fabricated charges of embezzlement filed against Tiffany. Indeed, neither Abbate nor anyone else at Yosemite Chevron had even suspected or accused Tiffany of any dishonest activity during her employment, and Abbate never reported any loss based on Tiffany's activities to his insurance, because, plaintiff is informed and believes, such losses did not occur and could not be credibly documented. Tiffany is informed and believes that Abbate took this step as a `preemptive strike' against her as an exemployee he anticipated might take legal action. Tiffany is further informed and believes that during the period of April, May and June 2003, Hutton headed a resultoriented investigation into Abbate's and Yosemite Chevron's false and fabricated allegations at their behest and at Spencer's and Abbate's direction. Plaintiff is further informed and believes that Hutton, Spencer and Abbate participated in this `investigation.' 24. The following facts are now apparent concerning the specifics of the false and fabricated investigation undertaken by the defendants. Abbate, with the assistance and 3

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advice of Hutton, Spencer, and other defendants, fabricated and manipulated Yosemite Chevron business records to support his baseless allegations. Abbate, Hutton, Spencer, and other defendants also downplayed and distorted the fact that Yosemite Chevron at all times had a video surveillance system that would have depicted an employee taking cash from the store register and, indeed, had in the past provided the evidence that led to Wilson's ultimate firing for stealing a lottery ticket. Nor surprisingly, no videotapes depicting Tiffany engaging in any dishonest activity were ever disclosed. Abbate also acted as an investigator on his own case, and, on or about June 4, 2003 interviewed another Yosemite Chevron employee, Alejandro Aceves ..., with Hutton initially surreptitiously observing. During that interview, Abbate and Hutton, at Spencer's direction, coerced Aceves into saying that Tiffany had taught him how to steal from Yosemite Chevron, a fact not disclosed by any of the defendants until Aceves admitted it in open court during Tiffany's criminal trial. Even further, Abbate and Hutton, at Spencer's direction, promised Aceves consideration for falsely implicating Tiffany. Overall, it took Abbate, Hutton, Spencer and other defendants approximately three months to `make' a case against Tiffany that could be filed. 25. Abbate directed his false and fabricated allegations to the Office of the District Attorney, instead of the Merced Police Department, the law enforcement agency with primary jurisdiction, because Abbate had a prior personal relationship with Spencer. Indeed, Spencer recently resigned his position in disgrace because of numerous scandals involving his misusing his official position for his personal interest and gain. Records indicate that Spencer directed and routed Abbate's and Yosemite Chevron's complaint not to the local law enforcement agency with primary jurisdiction, as would typically be the case, but instead to Hutton, a supervising investigator from his office. Moreover, in conducting, along with Abbate, the false and fabricated investigation, 4

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Hutton acted at all times at Spencer's direction. 26. On June 23, 2003, Tiffany was charged with embezzlement in violation of California Penal Code § 503. Tiffany was booked on these charges on August 7, 2003. The allegations underlying this baseless and fabricated criminal proceeding were that Tiffany embezzled sums herself and also instructed and advised Aceves on how to embezzle funds from Yosemite Avenue Chevron. Indeed, it was alleged that Tiffany was personally responsible for embezzling in excess of $12,000 and that Aceves was responsible for embezzling in excess of $19,000. In Merced County, it is not uncommon for those convicted of embezzlement to be incarcerated upon conviction, and Tiffany was apprized of this fact at the outset of the criminal proceedings. 27. The allegations against Tiffany in this regard are completely without any reliable evidentiary support and are contrary to the truth. Over the period of time where this embezzlement activity is alleged to have occurred, there is no corresponding drop in income or inventory at Yosemite Chevron. Also, there were regular, if not daily, checks of the register and inventory for the purposes of determining if employees were obligated to reimburse Yosemite Chevron, and none of these checks indicated losses consistent with the embezzlement allegations, which would have required Tiffany to have made away with hundreds of dollars per shift. Moreover, contrary to what was alleged, there was no indication that Tiffany was responsible for any of the alleged suspicious activity, since several employees work any given shift and are each able to tend the register at various times. Additionally, Yosemite Chevron's systems of controls make its records and the allegations of embezzlement highly suspect. Even further, there was absolutely no indication that Tiffany was ever reported during the subject time period as having any unexplained amounts of cash or suspicious property. 5

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28. The false, fabricated and baseless allegations of embezzlement against Tiffany were supported by the accountant firm retained on behalf of the prosecution, Cassabon, and the accountants from Cassabon specifically assisting the prosecution, Fung and McIlhatton. These defendants were brought into this criminal prosecution after the judge who presided over the preliminary examination had expressed doubt and criticism regarding the lack of any objective financial evidence that Tiffany had committed a crime. Even further, it was represented that the Office of the District Attorney was not ready for trial and required a substantial continuance in order to consult with these defendants, so that it might continue proceeding with its case against Tiffany. However, instead of making a serious, objective inquiry into the issues they were retained to examine, these defendants disregarded all of the above-outlined facts showing the embezzlement allegations to be baseless and incredible, as well as the professional standards that are supposed to be followed by accountants engaged to provide litigation services. As a result, these defendants produced misleading, resultoriented reports that served to add a false air of legitimacy to the embezzlement charges and which permitted said charges to proceed to trial. 29. As a result of the defendants' wrongful acts, Tiffany was forced to defend herself against these baseless allegations for an extended period of time, all the way up to trial. Spencer attended a hearing in this criminal proceeding on January 5, 2004 and acknowledged on that date that he had a personal relationship with Abbate. Moreover, despite Tiffany's lack of a criminal history and the relatively small amount of alleged loss, this criminal proceeding received `special attention' and a felony resolution was always demanded at Spencer's insistence. Also, despite any credible incriminating facts or evidence, the prosecution persisted in pursuing a felony conviction at Spencer's instruction. 6

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30. Trial commenced on September 27, 2005. On October 13, 2005, plaintiff was acquitted by a Merced County jury. From the time that the case was submitted to the jury until the verdict, only two and one-half hours elapsed. The FAC alleges a First Cause of Action pursuant to 42 U.S.C. § 1983 against all defendants, alleging in pertinent part: 34. The defendants' intentional and reckless acts, as described above, constitute a deprivation of Tiffany's ... rights under the Fourth Amendment not to have her liberty restricted without legal basis, to be arrested without probable cause, and not to be prosecuted maliciously without probable cause. With respect to these constitutional violations, as alleged hereinabove, defendants Yosemite Chevron, Abbco, Abbate, Fung, McIlhatton, and Cassabon were acting in joint activity with and/or conspiring with Spencer and Hutton. The Third Cause of Action is pursuant to California Civil Code § 52.1 against the Abbate Defendants and the Cassabon Defendants and alleges in pertinent part: 45. The defendants' intentional and reckless acts, as described above, constitute a deprivation of plaintiff[`s] ... rights, privileges and immunities under both article I of the California Constitution and the Fourth Amendment, specifically, her rights not to have her liberty restricted without legal basis, to be arrested without probable cause, and to be prosecuted maliciously without probable cause. The defendants' interference with these constitutional rights was accomplished by means of force, coercion, and intimidation, and/or the threat thereof. Plaintiff clarifies that the defendants' liability under this cause of action is not based on the privileged acts of reporting criminal activity and/or testifying in court, but, rather, fabricating evidence used to justify the filing and continuation of baseless criminal charges, as set forth hereinabove. 7

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The Fourth Cause of Action is for malicious prosecution under California common law against the Abbate Defendants and the Cassabon Defendants and alleges in pertinent part: 49. The defendants' intentional and reckless acts, as described above, caused plaintiff ... to be maliciously prosecuted without probable cause or other legal basis. Plaintiff was acquitted at trial. Plaintiff clarifies that the defendants' liability under this cause of action is not based on the privileged acts of reporting criminal activity and/or testifying in court, but, rather, fabricating evidence used to justify the filing and continuation of baseless criminal charges, as set forth hereinabove. B. CASSABON DEFENDANTS' OBJECTIONS TO BETTANCOURT EXPERT

11 REPORT. 12 Submitted in opposition to the Cassabon Defendants' motion 13 for summary judgment is what is characterized by Mr. Little as 14 "the declaration report" of John Bettancourt. 15 avers: 16 17 18 19 20 21 22 23 24 25 26 8 2. I have been retained on behalf of plaintiff Tiffany Fenters in this proceeding. 3. My opinions regarding the accounting aspects of this case are set forth in my testimony in the criminal case, People v. Tiffany Fenters, which I incorporate herein by reference. Those opinions remain unchanged. I based those opinions on a review of the accounting materials provided and made available by the prosecution in the underlying criminal case. I reviewed those materials at length, and I understand that my related work product has also been produced by plaintiff's counsel. 1. I am a certified public accountant. My current curriculum vitae has been provided separately. Mr. Bettancourt

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4. The spreadsheets provided by defendant Robert Abbate is indicative of false, fabricated and misleading work product for the reasons previously stated in my trial testimony and as reflected in my work product. The accounting work done by defendants Cassabon & Associates and Victor Fung is also indicative of false, fabricated and/or misleading work product for the reasons largely expressed in my trial testimony and reflected in my work product. The defendants' accounting work is not merely substandard or negligent but instead is reflective of false, fabricated and/or misleading work. The Cassabon Defendants object to Mr. Bettancourt's declaration on several grounds. Defendants object to consideration of Mr. Bettancourt's declaration because it fails to set forth Mr. Bettancourt's qualifications. Rule 702, Federal Rules of Evidence, provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise. "Whether a witness is qualified as an expert can only be

20 determined by comparing the area in which the witness has 21 superior knowledge, skill, experience, or education with the 22 subject matter of the witness's testimony. 23 Elevator Co., 896 F.2d 210, 212 (7th Cir.1990). 24 Defendants complain that Mr. Bettancourt's declaration does 25 not set forth his qualifications, other than to aver that he is a 26 9 Carroll v. Otis

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certified public accountant. Plaintiff responds that "the totality of the materials submitted to the Court, which include Bettancourt's trial testimony in the underlying criminal case and his deposition, more than amply set forth his qualifications as an experienced forensic accountant and certified fraud examiner, as well as the materials he reviewed in support of his opinion in this case," citing Bettancourt's trial testimony at p. 516-531 and his deposition testimony at p. 1-23. Plaintiff cites Miller v.

Corrections Corp. of America, 375 F.Supp.2d 889, 896 (D.Alaska 2005), in contending that "an expert report may, as do plaintiff's expert's reports, include or make reference to attachments reflecting the expert's opinions." Defendants' objections to Mr. Bettancourt's declaration on the ground that he is unqualified to render the opinion is baseless. Defendants do not point to any specific evidence that

Mr. Bettancourt is not qualified to give his expert opinion as to the accounting methods utilized by Defendants. Defendants object that Mr. Bettancourt provides no foundation for his opinion in that he does not set forth any of the data he reviewed or any investigation that he undertook in reaching his conclusions; that it does not set forth his methodology; and that his testimony is speculative and conjectural. However, as Plaintiff notes, Mr. Bettancourt's methodology and foundation is set forth in his trial testimony in the 10

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underlying criminal action.

While certain of Mr. Bettancourt's

conclusions are conjectural and speculative, these are matters going to the weight of his opinion, not its admissibility. C. Governing Standards.

Summary judgment is proper when it is shown that there exists "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56. A fact is "material" if it is relevant to an

element of a claim or a defense, the existence of which may affect the outcome of the suit. T.W. Elec. Serv., Inc. v.

Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987). Materiality is determined by the substantive law Id. The evidence and all

governing a claim or a defense.

inferences drawn from it must be construed in the light most favorable to the nonmoving party. Id.

The initial burden in a motion for summary judgment is on the moving party. The moving party satisfies this initial burden

by identifying the parts of the materials on file it believes demonstrate an "absence of evidence to support the non-moving party's case." (1986). Celotex Corp. v. Catrett, 477 U.S. 317, 325

The burden then shifts to the nonmoving party to defeat T.W. Elec., 809 F.2d at 630. The nonmoving

summary judgment.

party "may not rely on the mere allegations in the pleadings in order to preclude summary judgment," but must set forth by affidavit or other appropriate evidence "specific facts showing there is a genuine issue for trial." 11 Id. The nonmoving party

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may not simply state that it will discredit the moving party's evidence at trial; it must produce at least some "significant probative evidence tending to support the complaint." Id. The

question to be resolved is not whether the "evidence unmistakably favors one side or the other, but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." United States ex rel. Anderson v. N. Telecom, Inc., This requires more than the

52 F.3d 810, 815 (9th Cir.1995).

"mere existence of a scintilla of evidence in support of the plaintiff's position"; there must be "evidence on which the jury could reasonably find for the plaintiff." Id. The more

implausible the claim or defense asserted by the nonmoving party, the more persuasive its evidence must be to avoid summary judgment." Id. As explained in Nissan Fire & Marine Ins. Co. v.

Fritz Companies, 210 F.3d 1099 (9th Cir.2000): The vocabulary used for discussing summary judgments is somewhat abstract. Because either a plaintiff or a defendant can move for summary judgment, we customarily refer to the moving and nonmoving party rather than to plaintiff and defendant. Further, because either plaintiff or defendant can have the ultimate burden of persuasion at trial, we refer to the party with and without the ultimate burden of persuasion at trial rather than to plaintiff and defendant. Finally, we distinguish among the initial burden of production and two kinds of ultimate burdens of persuasion: The initial burden of production refers to the burden of producing evidence, or showing the absence of evidence, on the motion for summary judgment; the ultimate burden of persuasion can refer either to the burden of persuasion on the motion or to the burden of persuasion at trial. 12

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A moving party without the ultimate burden of persuasion at trial - usually, but not always, a defendant - has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment ... In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial ... In order to carry its ultimate burden of persuasion on the motion, the moving party must persuade the court that there is no genuine issue of material fact .... If a moving party fails to carry its initial burden of production, the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial ... In such a case, the nonmoving party may defeat the motion for summary judgment without producing anything ... If, however, a moving party carries its burden of production, the nonmoving party must produce evidence to support its claim or defense ... If the nonmoving party fails to produce enough evidence to create a genuine issue of material fact, the moving party wins the motion for summary judgment ... But if the nonmoving party produces enough evidence to create a genuine issue of material fact, the nonmoving party defeats the motion. 210 F.3d at 1102-1103.

20 D. 21 MATERIAL FACTS. 22 1. 23 Claim for Violation of 42 U.S.C. § 1983 Based Upon Absolute 24 Witness Immunity. 25 DUF 1: The District Attorney's Office 26 13 Issue No. 1: Plaintiff Cannot Maintain a CASSABON DEFENDANTS' STATEMENT OF UNDISPUTED

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filed criminal charges against Plaintiff. Plaintiff's Response: UNDISPUTED. DUF 2: A preliminary hearing was conducted on or about July 30, 2004, wherein the Court found there was sufficient evidence to support the charges. Plaintiff's Response: UNDISPUTED. DUF 3: In approximately October of 2004, the District Attorney's Office retained Cassabon Defendants as an expert in this matter. Plaintiff's Response: UNDISPUTED. DUF 4: The District Attorney's Office asked the Cassabon Defendants to go through the documents to determine if there was anything suspicious. Plaintiff's Response: Disputed. As defendant

Fung testified at the criminal trial, his assignment was "to determine whether there [were] assets misappropriated at the Yosemite Chevron gas station, and if any, estimate the amount of . . . embezzlement." Trial Transcript, p. 320. In his deposition, Fung described his assignment as "[t]racing the money." Fung Deposition, p. 12. Court's Ruling: DUF 6 is DISPUTED. DUF 5: No one at the District Attorney's Office ever asked or informed Cassabon Defendants that they needed to fabricate evidence or that the source documents were fabricated. Plaintiff's Response: Disputed, since the source documents themselves revealed this information. In 14

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Bettencourt's expert report, he declared that the spreadsheet provided by defendant Robert Abbate and the work product of Cassabon were indicative of false, fabricated and/or misleading work product Bettencourt opined that the defendants' accounting work was not merely substandard or negligent but instead is reflective of false, fabricated, and/or misleading work. See Bettencourt Report, Exhibit A. In his deposition, Bettencourt confirmed his report and further testified that Abbate's and Cassabon's work product was misleading and misstated the evidence. See Bettencourt Deposition, pp. 33, 38, 78, 97. Bettencourt testified that it was not reasonable or in good faith to attribute all of the voids on a particular shift to a specific employee. Bettencourt Deposition, p. 157-158, 161. Both Abbate's spreadsheet and Fung's report were similar in this respect. Bettencourt Deposition, p. 160, 161. Bettencourt is of the opinion that these actions could raise an inference of bad faith that could be found by a jury. Bettencourt Deposition, p. 163. Court's Ruling: DUF 5 is DISPUTED. That

Plaintiff's expert, Mr. Bettancourt, opines that Mr. Fung's analysis was flawed to the extent no reasonable accountant would attribute all voids is indicative of bad faith, does not establish that anyone at the District Attorney's Office asked or informed Mr. Fung to fabricate evidence against Plaintiff or informed Mr. Fung that the source documents underlying Mr. Abbate's spreadsheet or Mr. Fung's report were fabricated, i.e., invented or made up. This requires analysis of whether the 15

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District Attorney's investigator examined the materials and ignored the problems of knew the "evidence" was fabricated. DUF 6: None of the Abbate Defendants ever asked or informed the Cassabon Defendants that they needed to fabricate evidence to support the case against Plaintiff or that the source documents were fabricated. Plaintiff's Response: grounds stated in response to DUF 5. Court's Ruling: DUF 6 is DISPUTED for the same reason DUF 5 is disputed. DUF 7: In analyzing the matter, the Cassabon Defendants analyzed the frequency of voided transactions in relationship to the total amount of sales transactions among the various employees. Plaintiff's Response: UNDISPUTED. DUF 8: The Cassabon Defendants decided on the methodology to be utilized. Plaintiff's Response: Disputed. Fung Disputed on the same

testified in his deposition that the first thing he did after Cassabon's retention was to meet with defendant Hutton and the then assigned prosecutor, James Swanson. Fung Deposition, p. 18. During a one hour meeting, Fung was told that the prosecution suspected that Fenters was stealing money by voiding transactions. Fung Deposition, p. 18. Fung was told the

prosecution wanted him to analyze the pay point reports, a box of which he received on that occasion. Fung Deposition, p. 20. Fung 16

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also received Hutton's report which had Abbate's spreadsheet as an attachment. Fung Deposition, pp. 19, 22. Fung was told the attachment was a spreadsheet prepared by Abbate himself. Fung Deposition, p. 22. Overall, Fung's approach was similar to the Abbate's spreadsheet approach. Bacciarini Deposition, p. 14. Also disputed, to the extent that it implies a good faith methodology was utilized. In Bettencourt's expert report, he declared that the spreadsheet provided by defendant Robert Abbate and the work product of Cassabon were indicative of false, fabricated and/or misleading work product Bettencourt opined that the defendants' accounting work was not merely substandard or negligent but instead is reflective of false, fabricated, and/or misleading work. See Bettencourt Report, Exhibit A. In his

deposition, Bettencourt confirmed his report and further testified that Abbate's and Cassabon's work product was misleading and misstated the evidence. See Bettencourt Deposition, pp. 33, 38, 78, 97. Bettencourt testified that it

was not reasonable or in good faith to attribute all of the voids on a particular shift to a specific employee. Bettencourt Deposition, p. 157-158, 161. Both Abbate's spreadsheet and Fung's report were similar in this respect. Bettencourt Deposition, p. 160, 161. Bettencourt is of the opinion that these actions could raise an inference of bad faith that could be found by a jury. Bettencourt Deposition, p. 163. Court's Ruling: DUF 8 is DISPUTED. Plaintiff presents evidence that the Cassabon Defendants were 17

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influenced by the District Attorney's investigation and Abbate spreadsheet in the methodology they used in preparing their report; receipt of the Abbate spreadsheet, advisement of the scope of the Cassabon Defendants' retention, and a similarity of methodology in the opinion of the prosecutor does not constitute evidence raising a genuine issue that the Cassabon Defendants did not decide on the methodology. DUF 9: On approximately October 31, 2004, the Cassabon Defendants generated a report. Plaintiff's Response: UNDISPUTED. DUF 10: On or about October 7, 2005, Defendant Victor Fung of Cassabon & Associates testified in the criminal trial. Plaintiff's Response: UNDISPUTED. DUF 11: Plaintiff never filed any motion to exclude and/or strike the report and testimony of the Cassabon Defendants. Plaintiff's Response: UNDISPUTED. DUF 12: Plaintiff never requested a special admonition or instruction based on the testimony and report of the Cassabon Defendants. Plaintiff's Response: UNDISPUTED. DUF 13: Plaintiff had the opportunity to crossexamine Mr. Fung, introduce her own expert testimony and comment on the evidence during closing argument. Plaintiff's Response: UNDISPUTED. 18

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DUF 14: Plaintiff's only interaction with the Cassabon Defendants was her receiving a copy of the report from her counsel and her being present during Mr. Fung's testimony. Plaintiff's Response: UNDISPUTED. DUF 15: Since the trial, Plaintiff has had no interaction with the Cassabon Defendants. Plaintiff's Response: UNDISPUTED. Issue No. 2: Plaintiff Cannot Maintain a

Claim for Violation of California Civil Code § 52.1 Because She Cannot Meet the Requisite Elements. DUF 16: The Cassabon Defendants incorporate by reference Facts Nos. 1-15 as if fully set forth herein. DUF 17: Except for the alleged content of their Court testimony, the Cassabon Defendants never made any threatening remarks or gestures toward Plaintiff. Plaintiff's Response: Disputed. As a result

of Abbate's and the other defendants' misconduct, Fenters was threatened with the prospect of conviction and incarceration. See Plaintiff's Deposition, p. 401-402. Indeed, the lead prosecutor testified that he would have indeed sought to incarcerate and seek full restitution against Fenters had she been convicted. See Bacciarini Deposition, p. 64-66. Court's Ruling: DUF 17 is UNDISPUTED. Although the accountant's report and testimony is allegedly based on false or misleading data, such conduct does not amount to threatening remarks against Plaintiff. 19

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DUF 18: The Cassabon Defendants never touched or made physical contact with Plaintiff. Plaintiff's Response: UNDISPUTED. DUF 19: Except for the alleged content of their Court testimony, the Cassabon Defendants never threatened Plaintiff. Plaintiff's Response: grounds as stated in response to DUF 17. Court's Ruling: DUF 19 is UNDISPUTED. DUF 20: Except for the content of their Court testimony, Plaintiff never felt intimidated by the Cassabon Defendants. Plaintiff's Response: Disputed on the same grounds as stated in response to DUF 17. Court's Ruling: DUF 20 is DISPUTED. Plaintiff is entitled to attest to her own state of mind, which Defendants can dispute. 3. Issue No. 3: Plaintiff Cannot Maintain a Disputed on the same

Claim for Violation of California Civil Code § 52.1 Because Such Claim is Barred by Defenses Under California Civil Code § 47. DUF 21: The Cassabon Defendants incorporate by reference Facts Nos. 1-20 as if fully set forth herein. DUF 22: The Cassabon Defendants provided a copy of its report to the District Attorney's Office pursuant to its retention. Plaintiff's Response: UNDISPUTED. 20

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DUF 23: The Cassabon Defendants testified at trial at the request of the District Attorney's Office. Plaintiff's Response: UNDISPUTED. Issue No. 4: Plaintiff Cannot Maintain a

Claim for Malicious Prosecution as She Cannot Meet the Requisite Elements. DUF 24: The Cassabon Defendants incorporate by reference Fact Nos. 1-23 as if fully set forth herein. DUF 25: The Cassabon Defendants were not retained until after the preliminary hearing. Plaintiff's Response: UNDISPUTED. DUF 26: From the commencement of the action until its conclusion, the District Attorney's Office had the sole discretion whether to prosecute or dismiss the action. Plaintiff's Response: Disputed, to the extent that Bacciarini testified that Cassabon's analysis permitted the case to proceed to trial to the extent that it confirmed Abbate's spreadsheet analysis. Bacciarini Deposition, p. 70. The Cassabon defendants thus did have an influence over the case, which was the result of their improper and bad faith actions as demonstrated elsewhere herein. Further disputed, as the evidence

shows these actions were unduly influenced by Abbate's misrepresentations. The prosecution relied on Abbate's operating

in good faith in proceeding to a preliminary hearing and trial. Bacciarini Deposition, p. 87-88. However, Abbate misrepresented to Hutton that only one employee worked on the cash register in a 21

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given shift, although he knew the opposite was true on a daily basis. Hutton Deposition, p. 20, 74; Abbate Deposition, p. 81, 99. Indeed, employees' log on codes to the cash register were typically the last four digits of their phone numbers, and the phone numbers of employees were posted in the store. Abbate Deposition, p. 85. Abbate did not expect employees to review their shift reports on a line by line basis to ensure they were responsible for each transaction. Abbate Deposition, p. 90-91. Abbate also never told Bacciarini that more than one employee could have worked on the cash register during a given shift. Bacciarini Deposition, p. 16. Abbate reiterated this misrepresentation at trial, only later acknowledging during trial on cross examination that voids could not necessarily be linked to a particular employee, as opposed to a particular shift. See Preliminary hearing Transcript, p. 8, 17; Trial Transcript, p. 242. Hutton would have considered it important to know that actually multiple employees could work on the register in a given shift. Hutton Deposition, p. 21. Hutton would have considered this important because it would have made the task of identifying a particular employee who committed wrongdoing more difficult. Hutton Deposition, p. 22. Until the time the Cassabon firm was

retained after the preliminary hearing, the District Attorney's Office relied on Abbate to review the financial information pertinent to the case against Fenters. Hutton Deposition, p. 3334. Abbate's financial analysis was one of the reasons that Hutton submitted the case against Fenters for filing. Hutton 22

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Deposition, p. 82.

Indeed, the Abbate spreadsheet was the

only financial evidence then available in a prospective financial crime case. Hutton Deposition, pp. 82-83. Abbate conceded on

cross-examination at the preliminary hearing that the voids attributable to Fenters were overstated in his spreadsheet. See Preliminary Hearing Transcript, pp. 52-59. Abbate also conceded that certain entries in his spreadsheet appeared to be entered wrongly, and he spent no time reviewing the initial draft spreadsheet he prepared. See Preliminary hearing Transcript, pp.

60-61; Abbate Deposition, p. 60, 64. Abbate also attributed certain shifts to Fenters, even though the underlying pay point reports did not contain her genuine signature. See Trial Transcript, pp. 491-492. Abbate also represented to Hutton that

he had contact with another anonymous employee, who turned out to be Robert Wilson, around the time of Tiffany's separation from employment who first provided information regarding the alleged embezzlement, but Abbate did not tell Hutton that Wilson had been fired in December 2002 for stealing from Fenters. Hutton

Deposition, p. 72, 92-94; Trial Transcript, p. 488. Abbate continued his pattern of misrepresentations at the preliminary hearing and trial by again merely referring to Wilson as an "exemployee." See Preliminary Hearing Transcript, p. 41; Trial Transcript, p. 213. There never was an anonymous employee, and

Abbate was aware of Wilson's firing at all pertinent times. See Abbate Deposition, p. 44-45, 97. Hutton would have considered this information important to include in his investigation 23

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report. Hutton Deposition, p. 90-91.

Abbate also initially told

Hutton that he had cut Fenters hours beginning in January 2003 because he suspected she was stealing from his business. See Hutton's Investigative Report, Exh. B to Fung. Decl., pp. 2. Abbate did not concede until trial that Fenters' hours had not been cut during this time period. See Trial Transcript, pp. 235-236. Indeed, even after Aceves first admitted stealing in March 2003, Abbate only believed that he was dealing with a petty issue. Abbate Deposition, p. 102. Abbate also did not provide

any tax returns or other financial documents reflecting a drop in revenues during the time when the embezzlement was allegedly occurring. Hutton Deposition, p. 22. Abbate also did not provide Hutton with any videotapes from the register area. Hutton Deposition, p. 23. This is further circumstantial evidence of his intent to conceal the truth and unduly influence the criminal proceedings against Fenters. The record also shows that the

District Attorney's Office did no independent investigation that would have permitted it to exercise its discretion in any genuine and autonomous manner. Spencer acknowledged, although it was not done in this case, that his office commonly sought the assistance of a forensic accountant or fraud examiner during the investigation stage of a case. Spencer Deposition, p.56. Indeed, Hutton conceded at trial that he did nothing to corroborate Aceves' statement and Abbate's spreadsheet, even though he knew Abbate was not an accountant and that confessions are not always the full truth. See Trial Transcript, pp. 377-378, 401-404. 24

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Hutton never did an independent analysis of the Abbate spreadsheets. Bacciarini Deposition, p.22; Abbate Deposition, p. 108. Hutton also never tested the store surveillance system himself, even though the system would depict money taken from the register by an employee. Hutton Deposition, p. 24. Hutton never

took any steps to obtain any financial information pertaining to Fenters. Hutton Deposition, p. 28-29; Trial Transcript, pp. 443.

Hutton did not attempt to speak with Fenters' parents as part of his investigation, even though there was an allegation that Fenters had been "cut off" by them and therefore had a motive to steal. Hutton Deposition, p. 30. (Fenters father, Virgil Fenters, refuted this allegation at trial. See Trial Transcript, p. 418.) Hutton also never obtained any shift records that corroborated the allegation that Fenters' hours were cut in February 2003 due to her being suspected of stealing. Hutton Deposition, p. 71. Hutton "assumed there was a friendly connection between Fenters and Aceves but made no effort to confirm that through investigation, i.e., phone records, or other Yosemite Chevron employees, Hutton Deposition, p. 31. Hutton also never asked for specifics regarding where Aceves and Fenters were when Fenters allegedly taught him to do illegal voiding. Hutton Deposition, p. 31-32. Hutton never investigated any information suggesting that Abbate was a drug user, although it was provided by the defense during discovery and Hutton acknowledges that such matters can have a bearing on a witness' credibility in a case involving alleged financial loss. Hutton Deposition, p. 83-84; Bacciarini 25

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Deposition, p. 88.

Hutton never asked Aceves if he had prior

cash register experience. Trial Transcript, p. 391. Hutton never investigated how many employees worked or could use the register in a given shift. Trial Transcript, p. 393. The evidence also

shows that Abbate was part of the District Attorney's investigative team for purposes of Fenters' criminal case. Hutton acknowledges that Abbate was assisting in the District Attorney's investigation of the Fenters matter between May 14 and June 4, 2003. Hutton Deposition, p. 43. Abbate also acknowledges he

assisted in the investigation and had his most extensive contacts with Hutton during the investigative phase of the Fenters criminal case. Abbate Deposition, p. 104, 124. Hutton

testified an interview protocol was set up between Abbate and himself with respect to the June 4, 2003 interview of Aceves. Hutton Deposition, p. 42-43. Abbate also set up the June

4, 2003 interview with Aceves. Hutton Deposition, p. 44. Abbate actually conducted the first part of that interview, which was done in conformity with guidelines provided by Hutton. Deposition, pp. 44-45; Abbate Deposition, p. 109-110. Hutton Abbate

provided an additional eight months of financial analysis at the District Attorney's request. Hutton Deposition, p. 44; Abbate Deposition, p. 79. Hutton spent approximately 20 hours doing his work on the Fenters case, while Abbate worked 35 hours, not including time he spent assisting in interviews at Hutton's direction. Hutton Deposition, p. 57; Abbate Deposition, p. 61-62. All of Hutton's investigation is reflected in his initial and 26

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follow up reports. Hutton Deposition, p. 57.

Bacciarini, the

lead prosecutor at the preliminary hearing and at trial, has as many contacts with Abbate as he did Hutton in preparation for the preliminary hearing. Bacciarini Deposition, pp. 10-11. Additionally, James Swanson, who was the prosecutor handling the case against Fenters after the preliminary hearing until just before it went to trial, told Fenters' attorney that he was not permitted to resolve the case via a misdemeanor petty theft plea. See Virgil Fenters Deposition, pp. 32, 35-36. This is further circumstantial evidence of the District Attorney's compromised status in the Fenters criminal case. Court's Ruling: DUF 26 is UNDISPUTED. Plaintiff's recitation of evidence is irrelevant and immaterial to the fact that the District Attorney's Office had the sole legal discretion whether to prosecute Plaintiff. What Plaintiff

has not shown is that the Cassabon Defendants had any knowing participation in a scheme to wrongfully and unjustifiably prosecute Plaintiff. DUF 27: Plaintiff never had any interaction with the Cassabon Defendants prior to receiving their report from her counsel. Plaintiff's Response: UNDISPUTED. DUF 28: The Cassabon Defendants did not handle this matter any differently because it involved Tiffany Fenters. Plaintiff's Response: grounds as stated in response to DUF 5. 27 Disputed on the same

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Court's Ruling: DUF 28 is UNDISPUTED. Plaintiff's expert, Mr. Bettancourt, opines that Mr. Fung's

That

analysis was flawed does not infer that anyone at the District Attorney's Office asked or informed Mr. Fung to fabricate evidence against Plaintiff or informed Mr. Fung that the source documents underlying Mr. Abbate's spreadsheet or Mr. Fung's report were fabricated, i.e., invented or made up. Further,

Plaintiff's evidence does not permit an inference that the Cassabon Defendants handled their responsibilities as retained expert for the prosecution any differently merely because their investigation and report involved alleged embezzlement by Plaintiff. DUF 29: The Cassabon Defendants did not have any malice towards Plaintiff. Plaintiff's Response: grounds as stated in response to DUF 5. Court's Ruling: DUF 29 is UNDISPUTED. Plaintiff's expert, Mr. Bettancourt opines that Mr. Fung's analysis was flawed does not infer that anyone at the District Attorney's Office asked or informed Mr. Fung to fabricate evidence against Plaintiff or informed Mr. Fung that the source documents underlying Mr. Abbate's spreadsheet or Mr. Fung's report were fabricated, i.e., invented or made up. Plaintiff That Disputed on the same

presents no evidence from which it may be inferred that the Cassabon Defendants' investigation and report was motivated by malice toward Plaintiff. 28

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 1983.

5.

Issue No. 5: Plaintiff Cannot Maintain a

Claim for Malicious Prosecution Because Such a Claim is Barred by Defenses Under California Civil Code § 47. DUF 30: The Cassabon Defendants incorporate by reference Fact Nos. 1-29 as if fully set forth herein. 6. Issue No. 6: Plaintiff Cannot Maintain a

Claim for Punitive Damages Against the Cassabon Defendants. DUF 31: The Cassabon Defendants incorporate by reference Fact Nos. 1-30 as if fully set forth herein. ANALYSIS E. FIRST CAUSE OF ACTION FOR VIOLATION OF 42 U.S.C. §

The Cassabon Defendants move for summary judgment as to Plaintiff's cause of action for violation of Section 1983 on the grounds of absolute witness immunity and lack of evidence of conspiracy to fabricate evidence. In Briscoe v. LaHue, 460 U.S. 325, 326 (1983), the Supreme Court held that a witness has absolute immunity from liability for civil damages under Section 1983 for giving perjured testimony at trial. In Franklin v. Terr, 201 F.3d 1098 (9th

Cir.2000), the Ninth Circuit applied Briscoe's immunity to Terr, a psychiatrist called by the prosecution who testified in Franklin's criminal trial based on charges by his daughter, Franklin-Lipsker, that Franklin had murdered a childhood friend twenty years earlier, and who was later sued by Franklin under Section 1983. Franklin alleged that Terr had conspired with 29

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others to present perjured testimony at the criminal trial. Ninth Circuit held: In the instant case, Franklin is attempting to circumvent Terr's absolute witness immunity by alleging that Terr conspired with others to present false testimony. We are persuaded that allowing a plaintiff to circumvent the Briscoe rule by alleging a conspiracy to present false testimony would undermine the purposes served by granting witnesses absolute immunity from liability for damages under § 1983. Absolute witness immunity is based on the policy of protecting the judicial process and is `necessary to assure that judges, advocates, and witnesses can perform their respective functions without harassment or intimidation.' ... As the Court stated in Briscoe, `[a] witness's apprehension of subsequent damages liability might induce two forms of self censorship. First, witnesses might be reluctant to come forward to testify. And once a witness is on the stand, his testimony might be distorted by the fear of subsequent liability.' ... Moreover, as the district court correctly observed, `[a]ny other holding would eviscerate absolute immunity since a witness rarely prepares her testimony on her own.' Franklin alleges that Terr conspired with Franklin-Lipsker by interviewing her before Franklin's trial and by then incorporating information obtained from those interviews into her own testimony. Franklin also alleges that Terr provided Franklin-Lipsker `with a description of the sort of details that would make her testimony more persuasive, which Franklin-Lipsker then incorporated into her continually evolving "recollection" of the Nason murder.' The ostensible purpose of this conspiracy was to ensure that one person's testimony did not contradict the other's testimony. But because Terr's alleged conspiratorial behavior is inextricably tied to her testimony, we find that she is immune from damages. We are not presented with, and do not decide, the question whether § 1983 provides a cause of action against a 30

The

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defendant who conspired to present the perjured testimony of another but did not testify as a witness herself. 201 F.3d at 1101-1102. See also Paine v. City of Lompoc, 265

F.3d 975, 983 (9th Cir.2001): Our cases and Spurlock [v. Satterfield, 167 F.3d 995 (6th Cir.1999)], demonstrate that ... absolute witness immunity does not shield an out-of-court, pretrial conspiracy to engage in non-testimonial acts such as fabricating or suppressing physical or documentary evidence of suppressing the identities of potential witnesses. In Grey v. Poole, 275 F.3d 1113 (D.C.Cir. 2002), a social

10 worker submitted a statement to the court in connection with a 11 child neglect action. 12 Poole was entitled to absolute witness immunity, concluding that 13 "[i]t does not matter whether Poole's sworn statement was given 14 in oral or written form; what matters is that her statement was 15 the equivalent of sworn testimony in a judicial proceeding." 16 F.3d at 1118; see also Morstad v. Dept. of Corrections & Rehab., 17 147 F.3d 741, 744 (8th Cir.1998)("Because the court directed 18 Veenestra to evaluate Morstad and to testify at Morstad's 19 probation revocation hearing, we conclude that Veenstra was 20 performing functions essential to the judicial process ... and 21 affirm the district court's determination that Veenstra was 22 entitled to absolute immunity." 23 F.2d 1230 (7th Cir.1990), reversed on other grounds, 509 U.S. 259 24 (1993), the Seventh Circuit addressed whether three expert 25 witnesses had absolute immunity for their pretrial activities of 26 31 In Buckley v. Fitzsimmons, 919 275 The District of Columbia Circuit held that

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evaluating the bootprint, writing reports, discussing the case with prosecutors, and preparing to testify. 1245. The Seventh Circuit held: ... We agree with the district court that they do. Briscoe holds that the presentation of testimony may not be the basis of liability, even if the witness deliberately misleads the court. It would be a hollow immunity if the aggrieved party could turn around and say, in effect: `True, your delivery of bad testimony is immunized, but preparing to deliver that testimony is not, so I can litigate the substance of your testimony.' Substance is exactly what Briscoe puts off limits. As expert could violate a suspect's rights independently of the litigation. The expert might, for example, break into the suspect's home to obtain samples for analysis. Absolute immunity would not apply to that theft, for the same reason it does not apply to prosecutorial infliction of punishment without trial. A non-testimonial expert could violate a suspect's rights by `cooking' a laboratory report in a way that misleads the testimonial experts. Experts, like the police, `cannot hide behind [the immunity of] the officials whom they have defrauded.' ... But nothing in the complaint suggests that the three experts hid evidence, as opposed to misinterpreting it. Discussions between the prosecutors and the experts violated none of Buckley's rights. Preparing to commit slander or perjury is not actionable. The testimony itself is covered by immunity. Buckley makes it clear that the testimony is the real gravamen of his complaint. Olsen, he submits, `wrongfully changed his initial opinion'; Robbins was an `utterly disreputable witness-for-hire.' Maybe so, but cross-examination rather than a suit for damages is the right way to establish these things. Junk science is a plague of contemporary litigation, but the peddlers of poorly supported theories do not expose themselves to liability by doing 32 509 U.S. at 1244-

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research out of court or appearing in more than one case. White v. Frank, 855 F.2d 956 (2nd Cir.1988) holds that Briscoe does not apply to `complaining witnesses'. Buckley contends that the three experts are in this category, because but for their opinions the State's Attorney would not have obtained an indictment. The parallel is not apt. None of the experts invented the report of a crime or brought the fable to the state's attention. Jeanine Nicarico is dead. Each expert was brought into the case by the prosecutors, who sought to evaluate the strength of the evidence against Buckley. We therefore need not decide whether to follow White. 919 F.2d at 1245.

11 There is no allegation in the FAC that the Cassabon 12 Defendants specifically fabricated evidence presented at the 13 criminal trial. 14 by Abbate, Hutton and Spencer before the criminal action was 15 filed against Tiffany. 16 Defendants "were brought into this criminal prosecution after the 17 judge who presided over the preliminary examination had expressed 18 doubt and criticism regarding the lack of any objective financial 19 evidence that Tiffany had committed a crime". 20 further alleges: 21 22 23 24 25 26 [I]nstead of making a serious, objective inquiry into the issues they were retained to examine, these defendants disregarded all of the above-outlined facts showing the embezzlement allegations baseless and incredible, as well as the professional standards that are supposed to be followed by accountants engaged to provide litigation services. As a result, these defendants produced misleading, result-oriented reports 33 Paragraph 28 Paragraph 28 alleges that the Cassabon The FAC alleges that the evidence was fabricated

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that served to add a false air of legitimacy to the embezzlement charges and which permitted said charges to proceed to trial. The Court denied the Cassabon Defendants' motion to dismiss the Section 1983 cause of action on the ground of absolute witness immunity: Although this is a very close question, the allegations in Paragraph 28 permit an inference that the Cassabon Defendants fabricated the evidence they presented as a witness at the criminal trial by "produc[ing] misleading, result-oriented reports ...." This is sufficient to withstand the motion to dismiss under the standards set forth above; it provides Defendants fair notice of the claims against which they must defend. Whether the Cassabon Defendants are entitled to absolute witness immunity pursuant to Briscoe is a question of fact to be resolved at summary judgment or trial. In moving for summary judgment, the Cassabon Defendants rely

14 on Plaintiff's Omnibus Discovery Response (Rubin Decl., Ex. H, ¶ 15 4): 16 17 18 19 20 21 22 23 24 25 26 Plaintiff believes that the circumstantial evidence shows that the Cassabon firm, as part of the alleged conspiracy, disregarded sound accounting practices and even logic in an effort to support and supersede the findings of the financial `investigation' of Robert Abbate himself. As plaintiff's accounting expert, John Bettancourt can expound upon, and as he testified at the underlying criminal trial, the Cassabon firm's analysis in this case was so shoddy and non-compliant with professional standards and sound accounting practice that it could only be explained by a desire not to reach a valid conclusion but instead support the false premises of Robert Abbate's `investigation,' which plaintiff contends was fabricated, misleading and false. Therefore, the Cassabon investigation was equally fabricated, misleading and false. 34

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The Cassabon Defendants argue that the fact that Plaintiff and her expert disagree with the methodology used by the Cassabon Defendants does not mean that they violated Plaintiff's constitutional rights or that their conduct is beyond the scope of absolute witness immunity. The Cassabon Defendants note they

were third parties who investigated, based on their expert engagement, and testified about what they found. The Cassabon

Defendants argue that they are "covered squarely" by Briscoe and that there is absolutely no evidence that the Cassabon Defendants participated in the prosecution of Plaintiff in any other way than their role as an expert witness. Plaintiff responds that her evidence shows that the Cassabon Defendants "did exactly what caused the Court to permit the action against them to proceed past the pleadings, i.e., produce misleading, result-oriented reports during the pretrial stages of the underlying criminal case." Plaintiff refers to evidence that

the lead prosecutor, Mr. Bacciarini, acknowledged that the Cassabon Defendants' reports permitted the case to proceed to trial to the extent they confirmed Defendant Abbate's initial spreadsheet analysis, and that the Cassabon Defendants' work was similar to that of Defendant Abbate's in terms of methodology and approach. Plaintiff refers to evidence that the Cassabon

Defendants were retained by the District Attorney's Office after Defendant Abbate's spreadsheet analysis was ruled inadmissible at the preliminary hearing, making obtaining a supporting opinion of a forensic accountant crucial to continuation of the criminal 35

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case.

Plaintiff refers to Mr. Bettancourt's opinion that the

Cassabon Defendants' reports were misleading and could be consistent with a finding that they were prepared in bad faith. Plaintiff refers to Defendant Fung's testimony that he developed no approach distinct from that of Defendant Abbate, did not review any controls of Yosemite Chevron or review to determine if the business records utilized were reliable, and that he relied "without scrutiny upon an obviously misleading premise, i.e., that all of the voids on a single shift could be attributed to a single employee, although he knew otherwise and developed specious means of `discounting' this knowledge." contends: The collective effect of these facts is more than sufficient to support the allegations that the Court found to be sufficient, and, thus, to preclude summary judgment as well. This is not a case where the Cassabon Defendants are being sued on items covered by witness immunity, trial testimony or preparation therefor. Instead the record shows they are civil rights defendants because they create false, result oriented reports that even the lead prosecutor acknowledges were central to the continuation of the criminal case to trial. Morever, the inference of bad faith created by the evidence ... shows that there is a triable issue of fact as to the motive of the Cassabon defendants. The Cassabon Defendants reply that Plaintiff's contentions do not come within the exception set forth in Buckley v. Fitzsimmons, supra, 919 F.2d at 1245: Briscoe holds that the presentation of testimony may not be the basis of liability, even if the witness deliberately misleads the 36 Plaintiff

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court. It would be a hollow immunity if the aggrieved party could turn around and say, in effect: `True, your delivery of bad testimony is immunized, but preparing to deliver that testimony is not, so I can litigate the substance of your testimony.' Substance is exactly what Briscoe puts off limits. As expert could violate a suspect's rights independently of the litigation. The expert might, for example, break into the suspect's home to obtain samples for analysis. Absolute immunity would not apply to that theft, for the same reason it does not apply to prosecutorial infliction of punishment without trial. A non-testimonial expert could violate a suspect's rights by `cooking' a laboratory report in a way that misleads the testimonial experts. Experts, like the police, `cannot hide behind [the immunity of] the officials whom they have defrauded.' ... But nothing in the complaint suggests that the three experts hid evidence, as opposed to misinterpreting it. The Cassabon Defendants reiterate that there is no evidence that

14 they undertook any action independent of the criminal litigation. 15 The Cassabon Defendants were retained after the criminal action 16 was filed and the probable cause hearing was conducted to assist 17 in the preparation of trial and to provide trial testimony. 18 The Cassabon Defendants assert that there is a dearth of 19 evidence to support any allegation that they fabricated evidence. 20 Even if Mr. Bettancount's expert declaration is considered, the 21 Cassabon Defendants refer to Mr. Bettancourt's deposition 22 testimony that he could not opine whether the Cassabon Defendants 23 fabricated evidence, (Bettancourt Dep, 39:22-40:2, 64:17-20, 24 76:1-4, 97:8-12, 153:23-154:3), that the Cassabon Defendants did 25 not fabricate any of the source documents and accurately 26 37

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reflected the source documents in their report, (Bettancourt Dep., 55:23-56:2, 77:8-11). They refer to Mr. Bettancount's

deposition testimony that the analysis by the Cassabon Defendants may show a suspicion of embezzlement but their report misstated the probative value based on the lack of internal controls at Yosemite Chevron. This evidence, the Cassabon Defendants argue,

is insufficient to create a material issue of fact that they fabricated evidence. v. Fitzsimmons, id.: Olsen, he submits, `wrongfully changed his initial opinion'; Robbins was an `utterly disreputable witness-for-hire.' Maybe so, but cross-examination rather than a suit for damages is the right way to establish these things. Junk science is a plague of contemporary litigation, but the peddlers of poorly supported theories do not expose themselves to liability by doing research out of court or appearing in more than one case. The Cassabon Defendants reiterate that the absolute witness Again, the Cassabon Defendants cite Buckley

16 immunity doctrine means nothing if the aggrieved party can say 17 that your misleading testimony is immunized but the preparation 18 of your misleading testimony is not. 19 Plaintiff has no evidence that the Cassabon Defendants 20 fabricated any evidence as described in Buckley. 21 the Ninth Circuit applied absolute witness immunity to 22 allegations that the witness conspired to present perjured 23 testimony, i.e., fabricated testimony, and the immunity applied. 24 The Cassabon Defendants move for summary judgment that 25 Plaintiff cannot avoid absolute witness immunity by arguing that 26 38 In Franklin,

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they conspired with other Defendants.

See, e.g., Franklin v.

Terr, supra, 201 F.3d at 1102; Hunt v. Bennett, 17 F.3d 1263, 1267-1268 (10th Cir.), cert. denied, 513 U.S. 832 (1994); Jones v. Cannon, 174 F.3d 1271, 1288-1289 (11th Cir.1999). The

Cassabon Defendants further assert that Plaintiff has no evidence that they conspired with other defendants to present false expert witness testimony at Plaintiff's criminal trial. Plaintiff responds that the Cassabon Defendants "appear to argue that they are not state actors for purposes of Section 1983, but these defendants, like the Abbate defendants, erroneously contend that they can only be found to be state actors on one of the several possible bases, in this instance conspiracy rather than control as argued by the Abbates." Plaintiff completely misses the Cassabon Defendants' point. They do not move for summary judgment on the ground that they are not state actors; rather, they correctly contend that Plaintiff cannot overcome absolute witness immunity by arguing that the Cassabon Defendants conspired with other defendants to present false expert opinion testimony at Plaintiff's criminal trial. Further, Plaintiff presents no evidence from which such a conspiracy may be inferred. The Cassabon Defendants' motion for summary judgment as to the First Cause of Action on the ground of absolute witness immunity is GRANTED.2 This conclusion makes unnecessary resolution of the Cassabon Defendants' motion for summary judgment as to Plaintiff's prayer 39
2

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F.

THIRD CAUSE OF ACTION FOR VIOLATION OF CALIFORNIA

CIVIL CODE § 52.1. The Cassabon Defendants move for summary judgment as to Plaintiff's claim that they violated California Civil Code § 52.1, on the grounds that Plaintiff cannot establish the requisite elements and that the claim is barred by the absolute litigation privilege se