DeFilippo v. County of Stanislaus et al

Filing 111

ORDER signed by District Judge Troy L. Nunley on 9/13/2022 GRANTING-IN-PART AND DENYING-IN-PART 99 , 100 Motion to Dismiss as follows in the Order. Plaintiffs may file an amended complaint not later than 30 days from the electronic filing date of this Order.(Perdue, C.)

Case 1:18-cv-00496-TLN-BAM Document 111 Filed 09/14/22 Page 1 of 24
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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GEORGIA DEFILIPPO, et al.,

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No. 1:18-cv-00496-TLN-BAM

Plaintiffs,

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v.

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ORDER

COUNTY OF STANISLAUS, et al.,

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Defendants.

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This matter is before the Court on two Motions to Dismiss: (1) Defendants County of

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Stanislaus (“County”), Birgit Fladager, Marlissa Ferreira, David Harris, Kirk Bunch, Steve

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Jacobson, and Cory Brown’s (collectively, “County Defendants”) Motion to Dismiss (ECF No.

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99); and (2) Defendants City of Modesto (“Modesto”) and Jon Evers’s (collectively, “City

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Defendants”) Motion to Dismiss (ECF No. 100).1 Plaintiffs Georgia DeFilippo and Christina

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DeFilippo (collectively, “Plaintiffs”) oppose each motion. (ECF Nos. 105, 106.) Defendants

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filed replies. (ECF Nos. 108, 109.) For the reasons set forth below, the Court GRANTS in part

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and DENIES in part Defendants’ motions.

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When the Court discusses County Defendants and City Defendants together, it will refer
to them collectively as “Defendants.”
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I.

FACTUAL AND PROCEDURAL BACKGROUND

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On April 2, 2012, an individual named Korey Kauffman (“Kauffman”) was reported

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missing. (ECF No. 96 at 9.) In August 2015, officers arrested a prominent criminal defense

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attorney named Frank Carson (“Carson”) on suspicion that he was involved in an elaborate

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murder to hire scheme that resulted in Kauffman’s murder. (Id. at 2.) Plaintiffs are Carson’s wife

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and stepdaughter, who were also arrested and prosecuted on charges related to the murder. (Id.)

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Plaintiffs’ claims are based on allegedly wrongful actions by Defendants in investigating,

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arresting, and prosecuting Plaintiffs. (Id.) The charges against Plaintiffs were ultimately

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dismissed after the preliminary hearing. (Id. at 3.)

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Plaintiffs filed the instant action on April 10, 2018. (ECF No. 1.) Plaintiffs filed the

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operative Second Amended Complaint (“SAC”) on November 18, 2021, alleging various 42

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U.S.C. § 1983 claims and state law claims. (ECF No. 96 at 46–56.) County Defendants filed a

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motion to dismiss on January 7, 2022, and City Defendants filed a motion to dismiss on January

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10, 2022. (ECF Nos. 99, 100.)

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II.

STANDARD OF LAW

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A motion to dismiss for failure to state a claim upon which relief can be granted under

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Federal Rule of Civil Procedure (“Rule”) 12(b)(6) tests the legal sufficiency of a complaint.

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Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Rule 8(a) requires that a pleading contain

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“a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.

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Civ. P. 8(a); see also Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). Under notice pleading in

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federal court, the complaint must “give the defendant fair notice of what the . . . claim is and the

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grounds upon which it rests.” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (internal

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citation and quotations omitted). “This simplified notice pleading standard relies on liberal

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discovery rules and summary judgment motions to define disputed facts and issues and to dispose

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of unmeritorious claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).

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On a motion to dismiss, the factual allegations of the complaint must be accepted as true.

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Cruz v. Beto, 405 U.S. 319, 322 (1972). A court must give the plaintiff the benefit of every

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reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail
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Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege

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“‘specific facts’ beyond those necessary to state his claim and the grounds showing entitlement to

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relief.” Twombly, 550 U.S. at 570 (internal citation omitted).

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Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of

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factual allegations.” U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986).

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While Rule 8(a) does not require detailed factual allegations, “it demands more than an

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unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A

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pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the

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elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678

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(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements, do not suffice.”). Thus, ‘[c]onclusory allegations of law and unwarranted inferences

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are insufficient to defeat a motion to dismiss for failure to state a claim.” Adams v. Johnson, 355,

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F.3d 1179, 1183 (9th Cir. 2004) (citations omitted). Moreover, it is inappropriate to assume the

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plaintiff “can prove facts that it has not alleged or that the defendants have violated the . . . laws

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in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State

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Council of Carpenters, 459 U.S. 519, 526 (1983).

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Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough

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facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim

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has facial plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at

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680. While the plausibility requirement is not akin to a probability requirement, it demands more

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than “a sheer possibility that a defendant has acted unlawfully.” Id. at 678. This plausibility

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inquiry is “a context-specific task that requires the reviewing court to draw on its judicial

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experience and common sense.” Id. at 679. Thus, only where a plaintiff fails to “nudge [his or

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her] claims . . . across the line from conceivable to plausible” is the complaint properly dismissed.

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Id. at 680 (internal quotations omitted).

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If a complaint fails to state a plausible claim, “‘[a] district court should grant leave to
amend even if no request to amend the pleading was made, unless it determines that the pleading
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could not possibly be cured by the allegation of other facts.’” Lopez v. Smith, 203 F.3d 1122,

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1130 (9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995));

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see also Gardner v. Martino, 563 F.3d 981, 990 (9th Cir. 2009) (finding no abuse of discretion in

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denying leave to amend when amendment would be futile). Although a district court should

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freely give leave to amend when justice so requires under Rule 15(a)(2), “the court’s discretion to

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deny such leave is ‘particularly broad’ where the plaintiff has previously amended its complaint.”

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Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 520 (9th Cir. 2013) (quoting

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Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir. 2004)).

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III.

ANALYSIS

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County Defendants move to dismiss for the following reasons: (1) Plaintiffs’ claims

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against Fladager, Harris, and Ferreira that rely on conduct prior to April 10, 2016, are time-

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barred; (2) Plaintiffs’ claims against Harris are time-barred; (3) Plaintiffs’ third and fifth claims

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are time-barred; (4) Plaintiffs’ claims against Fladager, Harris, and Ferreira in their roles as

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administrators, supervisors, or investigators are time-barred; (5) official capacity suits are

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redundant to the claims against the County; (6) Plaintiffs’ claims against Fladager, Harris, and

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Ferreira in their roles as prosecutors should be dismissed; (7) Plaintiffs fail to state Fourth

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Amendment claims for unlawful search and seizure based on judicial deception; (8) Plaintiffs lack

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standing to bring retaliatory prosecution claims; (9) Plaintiffs fail to state Fourteenth Amendment

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claims; (10) Plaintiffs fail to state Monell claims; (11) Plaintiffs fail to state claims under

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California Civil Code § 52.1; (12) Fladager, Harris, and Ferreira are immune from liability for the

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acts of others pursuant to California Government Code § 820.8; and (13) statements made by

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district attorneys are privileged under California Civil Code § 47 and therefore cannot support

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Plaintiffs’ defamation claims. (ECF No. 99-1.)

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City Defendants move to dismiss for the following reasons: (1) the SAC constitutes a

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shotgun pleading; (2) Plaintiffs fail to state malicious or retaliatory prosecution claims against

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Evers; (3) Evers is entitled to qualified immunity; and (4) Plaintiffs’ state law claims fail as a

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matter of law. (ECF No. 100.)

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The Court will address the parties’ arguments in turn. To the extent Defendants’

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arguments overlap, the Court addresses those arguments from both motions together.

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A.

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Shotgun Pleading

City Defendants argue the Court should dismiss the SAC as an impermissible shotgun
pleading, as it did in its previous Order. (ECF No. 100 at 13.)
Rule 8 requires “each averment of a pleading to be simple, concise, and direct.” McHenry

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v. Renne, 84 F.3d 1172, 1177–78 (9th Cir. 1996) (internal quotation marks omitted). To comply

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with Rule 8, a complaint should clearly and fully set forth “who is being sued, for what relief, and

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on what theory, with enough detail to guide discovery.” Id. at 1178. Shotgun pleading occurs

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when: (1) one party pleads that multiple parties did an act, without identifying which party did

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what specifically; or (2) when one party pleads multiple claims and does not identify which

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specific facts are allocated to which claim. Hughey v. Camacho, No. 2:13-cv-02665-TLN-AC,

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2014 WL 5473184, at *4 (E.D. Cal. Oct. 23, 2014).
In its previous Order, the Court dismissed the First Amended Complaint (“FAC”) as a

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shotgun pleading because Plaintiffs addressed Defendants collectively in nearly all the allegations

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and claims. (ECF No. 41.) In contrast, the much-improved SAC adds considerable factual detail,

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delineates the “wrongful acts” of each Defendant, and specifies what facts give rise to each claim.

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(ECF No. 96.) Although the SAC could be clearer at times, it is no longer a shotgun pleading.

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The Court thus DENIES City Defendants’ motions to dismiss pursuant to Rule 8.

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B.

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Timeliness of Claims Against Fladager, Harris, and Ferreira Based on
Conduct Prior to April 10, 2016

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County Defendants argue that claims against Fladager, Harris, and Ferreira based on

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conduct that occurred prior to April 10, 2016, are barred by California’s two-year statute of

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limitations for personal injury actions. (ECF No. 99-1 at 11.) County Defendants also contend

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tolling under California Government Code § 945.3 does not apply to Fladager, Harris, and

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Ferreira because they are district attorneys, not peace officers.2 (Id. at 12 n.1.) In opposition,

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Federal courts apply the forum state’s laws with respect to tolling of the statute of
limitations insofar as state law is not inconsistent with federal law. Butler v. Nat’l Cmty.
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Plaintiffs argue their claims based on the 2015 arrest warrant did not accrue until the charges

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against Plaintiffs were dismissed on April 10, 2017. (ECF No. 105 at 18.) Plaintiffs do not

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address County Defendants’ arguments as to tolling under § 945.3. (See id.) In reply, County

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Defendants argue Plaintiffs’ judicial deception claims accrued when the underlying affidavit was

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reasonably available — in this case, August 2015. (ECF No. 109 at 2.)

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County Defendants have not persuaded the Court that all of Plaintiffs’ claims based on

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conduct prior to April 10, 2016 are necessarily time-barred. County Defendants offer only

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conclusory arguments on this issue in their motion. (ECF No. 99-1 at 11–12.) For example,

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County Defendants summarily argue that Plaintiffs’ judicial deception claims, claims that County

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Defendants supervised or participated in the investigation, and Plaintiffs’ state law claims are

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time-barred. (Id.) County Defendants do not cite case law as to accrual dates for each specific

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claim in their motion. (See id.) In fact, the only case County Defendants cite in their reply is

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Klein v. City of Beverly Hills, 856 F.3d 1276 (9th Cir. 2017), which supports the possibility that

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Plaintiffs’ judicial deception claims are timely depending on when the underlying affidavit was

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reasonably available. (ECF No. 109 at 2.) On the other hand, Plaintiffs’ briefing on this issue is

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equally weak. For instance, Plaintiffs do not cite factual allegations or make clear arguments

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about when each claim based on Fladager, Harris, and Ferreira’s conduct accrued. (See ECF No.

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105 at 18.) Absent clear factual allegations from Plaintiffs about when each claim accrued and/or

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any basis for tolling, the Court cannot say that Plaintiffs allege timely claims.

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For these reasons, the Court GRANTS County Defendants’ motion with leave to amend as
to claims against Fladager, Harris, and Ferreira based on conduct prior to April 10, 2016.
C.

Timeliness of Claims Against Harris

County Defendants argue claims against Harris are time-barred because Plaintiffs did not
name Harris in this action or identify him in the complaint until the FAC was filed in May 2020

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Renaissance of Cal., 766 F.3d 1191, 1198 (9th Cir. 2014). California law statutorily tolls “[a]ny
applicable statute of limitations for filing and prosecuting” an action for “damages against a peace
officer . . . based upon conduct of the peace officer relating to the offense for which the accused is
charged, including an act or omission in investigating or reporting the offense or arresting or
detaining the accused.” Cal. Gov’t Code § 945.3.
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despite knowing of his existence for over three years. (ECF No. 99-1 at 12.) In opposition,

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Plaintiffs argue the addition of Harris in place of a “Doe Defendant” relates back to the original

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complaint, which was timely filed. (ECF No. 105 at 19.)

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When a limitations period derives from state law, Rule 15(c)(1) requires district courts “to

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consider both federal and state law and employ whichever affords the more permissive relation

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back standard.” Butler, 766 F.3d at 1200–01 (“[A] plaintiff may be entitled to the benefit of state

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law relation back rules if those are more generous than Rule 15(c).”). Because the Court

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concludes relation back is appropriate under the federal rule, the Court need not and does not

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address the California rule. For an amended complaint to relate back under Rule 15(c)(1)(C), “(1)

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the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party

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to be brought in must have received such notice that it will not be prejudiced in maintaining its

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defense; (3) that party must or should have known that, but for a mistake concerning identity, the

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action would have been brought against it.” Id. at 1202 (quoting Schiavone v. Fortune, 477 U.S.

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21, 29 (1986)).

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County Defendants only contest the third requirement (see ECF No. 99-1 at 13), that

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Harris “knew or should have known that the action would have been brought against [him], but

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for a mistake concerning the proper party’s identity.” Fed. R. Civ. P. 15(c)(1)(C)(ii) (emphasis

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added). As to this requirement, the Supreme Court has clarified the “relation back under Rule

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15(c)(1)(C) depends on what the party to be added knew or should have known, not on the

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amending party’s knowledge or its timeliness in seeking to amend the pleading.” Krupski v.

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Costa Crociere S. p. A., 560 U.S. 538, 541 (2010).

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Plaintiffs argue when they discovered Harris’s role in the investigation, they substituted

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Harris for the Doe Defendants in the FAC. (ECF No. 105 at 19.) Plaintiffs further argue by

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virtue of Harris’s position at the County there is sufficient “community of interest” such that he

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had notice of the action and Harris has shared an attorney with the other Defendants since the

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filing of the original complaint. (Id. at 20.) The Court agrees with Plaintiffs that this is sufficient

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to show Harris knew or should have known the action would have been brought against him, but

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for Plaintiffs’ mistake. See Fed. R. Civ. P. 15(c)(1)(C)(ii); Krupski, 560 U.S. at 549 (“[A]
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plaintiff might know that the prospective defendant exists but nonetheless harbor a

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misunderstanding about his status or role in the events giving rise to the claim at issue, and she

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may mistakenly choose to sue a different defendant based on that misimpression. That kind of

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deliberate but mistaken choice does not foreclose a finding that Rule 15(c)(1)(C)(ii) has been

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satisfied.”).
Accordingly, the Court DENIES County Defendants’ motion to dismiss based on the

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timeliness of adding Harris as a Defendant.

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D.

Timeliness of Plaintiffs’ Third and Fifth Claims

County Defendants argue Plaintiffs’ retaliatory prosecution and Monell claims are time-

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barred because they were not asserted until May 2020. (ECF No. 99-1 at 14.) In opposition,

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Plaintiffs argue these claims relate back to facts in the original Complaint, which was filed on

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April 10, 2018. (ECF No. 105 at 20.)

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“An otherwise time-barred claim in an amended pleading is deemed timely if it relates

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back to the date of a timely original pleading.” Asarco, LLC v. Union Pac. R.R. Co., 765 F.3d

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999, 1004 (9th Cir. 2014). Under Rule 15(c), an amended complaint relates back when it asserts

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a claim “that arose out of the conduct, transaction, or occurrence set out — or attempted to be set

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out — in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B).

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Plaintiffs argue the facts and circumstances alleged in the SAC are the same as the

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original Complaint — namely, the malicious investigation and retaliatory prosecution of Plaintiffs

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as part of the conspiracy to frame Carson for murder. (ECF No. 105 at 21.) The Court has

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reviewed the original Complaint and agrees with Plaintiffs. In the Complaint, Plaintiffs allege

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they were arrested and prosecuted despite a “clear lack of evidence against them” as part of a

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conspiracy by County Defendants based on their disdain for Carson. (ECF No. 1 at 2, 6–13, 21.)

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Plaintiffs’ allegations in the SAC are more detailed but essentially arise from the same conduct

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alleged in the Complaint. As such, the Court concludes the relation back doctrine applies because

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Claims Three and Five stem from the same conduct set out (or attempted to be set out) in the

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original Complaint. Fed. R. Civ. P. 15(c)(1)(B).

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Thus, the Court DENIES County Defendants’ motion to dismiss based on the timeliness
of Claims Three and Five.

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E.

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Timeliness of Plaintiffs’ Claims Against Fladager, Harris, and Ferreira as
Administrators, Supervisors, or Investigators

County Defendants argue Plaintiffs’ claims against Fladager, Harris, and Ferreira as

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administrators, supervisors, or investigators are time-barred because those claims are raised for

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the first time in the SAC and do not relate to allegations in the FAC. (ECF No. 99-1 at 15.) In

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opposition, Plaintiffs argue this theory of liability is based on the same facts pleaded in the

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original Complaint. (ECF No. 105 at 22.)

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The Court agrees with Plaintiffs and concludes the relation back doctrine applies because

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these claims against Fladager, Harris, and Ferreira arise from the same conduct alleged in the

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original Complaint. For example, the Complaint alleges “Ferreira acted outside her role as a

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prosecuting attorney by acting as an investigator.” (ECF No. 1 at 11.) The Complaint also

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alleges that Fladager and Ferreira failed to provide adequate training and supervision of attorneys,

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investigators, and deputies and failed to adequately discipline or retrain employees involved in

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misconduct. (Id. at 4.) Although Plaintiffs did not allege their original claims as clearly, the

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Court is persuaded that the claims in the SAC arise from the same conduct set out — or attempted

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to be set out — in Complaint. Fed. R. Civ. P. 15(c)(1)(B).

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As such, the Court DENIES County Defendants’ motion to dismiss based on the

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timeliness of claims against Fladager, Harris, and Ferreira as administrators, supervisors, or

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investigators.

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F.

Official Capacity Suits

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County Defendants argue Plaintiffs’ claims against Fladager, Harris, Ferreira, Bunch,

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Jacobson, and Brown in their official capacities should be dismissed as duplicative of claims

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against the County. (ECF No. 99-1 at 16.) Plaintiffs do not respond to this argument.

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The Court agrees with County Defendants that suits against individuals in their official

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capacity are redundant to claims against the County. It is appropriate to dismiss official capacity

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suits as redundant when the municipality is also named as a defendant to the same claims arising
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out of the same facts. Maldonado v. City of Ripon, No. 2:17-cv-00478-TLN-GGH, 2018 WL

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5304820, at *5 (E.D. Cal. Oct. 24, 2018) (collecting cases).

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Therefore, the Court GRANTS County Defendants’ motion on this basis and DISMISSES
the official capacity claims against individual County Defendants without leave to amend.
G.

Claims Against Fladager, Harris, and Ferreira as Prosecutors

County Defendants argue claims against Fladager, Harris, and Ferreira in their roles as

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prosecutors should be dismissed because they have Eleventh Amendment immunity and absolute

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immunity. (ECF No. 99-1 at 16–18.) In opposition, Plaintiffs argue there is no Eleventh

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Amendment immunity or absolute immunity for prosecutors acting as policymakers, supervisors,

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or investigators. (ECF No. 105 at 23–24.) The Court will address each type of immunity in turn.

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First, as to Eleventh Amendment immunity, the parties agree that state sovereign

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immunity does not preclude claims against Fladager, Harris, and Ferreira based on conduct that is

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administrative in nature rather than prosecutorial. Compare Goldstein v. City of Long Beach, 715

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F.3d 750, 759–60 (9th Cir. 2013)) (“[The] District Attorney represents the county when

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establishing administrative policies and training related to the general operation of the district

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attorney’s office.”), with Weiner v. San Diego Cnty., 210 F.3d 1025, 1031 (9th Cir. 2000) (“[A]

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California district attorney is a state officer when deciding whether to prosecute an individual.”).

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Plaintiffs argue their claims against Fladager, Harris, and Ferreira do not stem from their

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roles as prosecutors, but from their roles in setting local administrative policy and failing to

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properly train or discipline investigators. (ECF No. 105 at 23.) In the SAC, Plaintiffs allege

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Fladager, and Harris were policymakers who ratified and supervised their employees’ use of

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fabricated evidence. (ECF No. 96 at ¶¶ 56–58.) Plaintiffs further allege Ferreira acted outside

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her role as prosecutor by trying to intimidate a witness from participating in the preliminary

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hearing, participating in witness interviews, and fabricating evidence. (Id. at ¶ 58.) To the extent

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Plaintiffs’ claims do not challenge Fladager, Harris, and Ferreira’s conduct as prosecutors,

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Eleventh Amendment immunity does not preclude such claims.

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Second, as to absolute immunity, prosecutors are not entitled to absolute immunity for
claims related to administrative and investigatory conduct. Absolute prosecutorial immunity
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applies only to conduct “intimately associated with the judicial phase of the criminal process.”

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Burns v. Reed, 500 U.S. 478, 486 (1991) (quoting Imbler v. Pachtman, 424 U.S. 409, 430

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(1976)). In contrast, prosecutors “enjoy only qualified immunity, not absolute immunity, for

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investigatory, administrative, or investigative functions.” Santana v. Cnty. of Yuba, No. 2:15-cv-

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00794-KJM-EFB, 2016 WL 1268107, at *14 (E.D. Cal. Mar. 31, 2016).

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In the instant case, Plaintiffs assert their claims against Fladager, Harris, and Ferreira are

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based on allegations about how they acted outside their roles as prosecutors. (ECF No. 105 at

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25.) To the extent Plaintiffs’ claims hinge on administrative and investigative misconduct and not

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prosecutorial conduct “intimately associated with the judicial phase of the criminal process,”

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absolute immunity does not apply. Burns, 500 U.S. at 48.
For these reasons, the Court DENIES Defendants’ motion to dismiss based on Fladager,

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Harris, and Ferreira’s immunity.

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H.

Unlawful Search and Seizure Based on Judicial Deception

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County Defendants argue Plaintiffs fail to adequately allege their judicial deception

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claims. (ECF No. 99-1 at 89.) In opposition, Plaintiffs contend they have adequately stated their

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claims based on detailed allegations about material omissions and false statements in Plaintiffs’

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arrest warrant. (ECF No. 105 at 25.)

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“[G]overnment investigators may be liable for violating the Fourth Amendment when they

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submit false and material information in a warrant affidavit.” Galbraith v. Cnty. of Santa Clara,

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307 F.3d 1119, 1126 (9th Cir. 2002). Under this authority, “a § 1983 plaintiff must show that the

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investigator ‘made deliberately false statements or recklessly disregarded the truth in the

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affidavit’ and that the falsifications were ‘material’ to the finding of probable cause.” Id. (quoting

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Hervey v. Estes, 65 F.3d 784, 790 (9th Cir. 1995)). It is true that “a plaintiff cannot hold an

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officer liable because of his membership in a group without a showing of individual participation

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in the unlawful conduct.” Jones v. Williams, 297 F.3d 930, 935 (9th Cir. 2002) (citing Chuman v.

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Wright, 76 F.3d 292, 294 (9th Cir. 1996)). However, “district courts construing the group

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liability doctrine of Jones and Chuman have upheld [§] 1983 claims against groups of defendants

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where the pleadings also include factual allegations sufficient to establish that individual
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defendants were integral participants in the unlawful conduct.” Martinez v. City of W.

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Sacramento, No. 2:16-cv-02566-TLN-EFB, 2019 WL 448282, at *16 (E.D. Cal. Feb. 5, 2019).
Although Plaintiffs’ allegations could be clearer, the Court agrees with Plaintiffs that the

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allegations in the SAC support at the very least a reasonable inference that the individual

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Defendants “made deliberately false statements or recklessly disregarded the truth in the affidavit

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and that the falsifications were material to the finding of probable cause.” Galbraith, 307 F.3d at

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1126. The SAC alleges approximately 15 specific material omissions and false or misleading

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statements in the arrest warrant that led to Plaintiffs’ arrests.3 (ECF No. 96 at ¶ 49.) Further,

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Plaintiffs allege facts specific to each Defendant sufficient to infer that each were integral

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participants in the allegedly unlawful arrests. (Id. at ¶¶ 46, 56–62.) For example, the SAC

11

alleges Brown, the affiant, testified that the arrest warrant resulted from a “group consensus”

12

between himself, Fladager, Ferreira, Bunch, and Jacobson as to what charges to seek and what

13

facts to include in the warrant. (Id. at ¶ 46.) The SAC further alleges Defendants reviewed the

14

arrest warrant, knew it contained fabrications and omissions of exculpatory evidence, and

15

nonetheless ordered Brown to submit the warrant to a judge as part of a conspiracy to frame

16

Carson for murder. (Id.) The Court concludes these allegations are sufficient to state a claim.

17

Thus, the Court DENIES the motion to dismiss the judicial deception claims.

18

I.

19

Malicious Prosecution

City Defendants argue there are no specific allegations tying Evers to the investigation

20

and prosecution of Plaintiffs. (ECF No. 100 at 15.) In opposition, Plaintiffs argue they

21

sufficiently allege facts showing Evers was an integral participant in the entire malicious

22

investigation. (ECF No. 106 at 20.)

23

To establish a cause of action for malicious prosecution, a plaintiff must demonstrate the

24

prior action was: (1) initiated by or at the direction of the defendant and legally terminated in the

25

3

26
27
28

County Defendants make much of Plaintiffs’ use of the term “search warrant” rather than
“arrest warrant” in paragraph 69 of the SAC. (ECF No. 99-1 at 19.) Plaintiffs respond that the
use of the term “search warrant” was a typographical error that should be obvious to Defendants
as paragraph 69 refers to paragraph 49, which includes detailed allegations about omissions and
false statements in the arrest warrant. The Court agrees with Plaintiffs and will not address
Defendants’ arguments related to the mistaken usage of “search warrant” in paragraph 69.
12

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1

plaintiff’s favor; (2) brought without probable cause; and (3) initiated with malice. Siebel v.

2

Mittlesteadt, 41 Cal. 4th 735, 740 (2007). A plaintiff must also show the defendant prosecuted

3

him “for the purpose of denying [him] equal protection or another specific constitutional right.”

4

Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004).

5

With respect to the first element, Plaintiffs point to several allegations in the SAC

6

regarding Evers’s role in the investigation that led to Plaintiffs’ criminal prosecution. (ECF No.

7

96 at ¶ 61.) For example, Plaintiffs allege Evers participated in approximately 400 interviews in

8

the investigation and was one of the primary persons involved in creating the fabricated statement

9

of Robert Woody (“Woody”) and in creating false statements to bolster Woody’s statement. (Id.)

10

Plaintiffs allege Woody’s false and coerced statement was the only evidence linking Carson —

11

and Plaintiffs by extension — to the murder of Kauffman. (Id. at ¶ 46.) Plaintiffs also allege

12

Evers participated in drafting the arrest warrant with fabricated/omitted material evidence that led

13

to Plaintiffs’ arrest. (Id.) Plaintiffs allege the criminal action terminated in their favor after the

14

charges were dismissed for lack of probable cause. (Id. at ¶¶ 1, 79.) With respect to the second

15

and third elements, Plaintiffs allege facts suggesting Defendants’ actions were not supported by

16

probable cause and were motivated by a malicious desire to convict Carson. (Id. at ¶ 60.) Lastly,

17

Plaintiffs assert Defendants acted to deny Plaintiffs’ Fourth Amendment rights. (Id. at ¶ 74.)

18

While Plaintiffs’ allegations could have been clearer, the Court concludes these allegations

19

provide at the very least a reasonable inference that Evers was an integral participant in the group

20

conduct and are sufficient to state a claim for malicious prosecution. Martinez, 2019 WL 448282,

21

at *16; see Usher v. City of L.A., 828 F.2d 556, 562 (9th Cir. 1987) (concluding the plaintiff

22

adequately stated a malicious prosecution claim based on allegations that “the defendants illegally

23

arrested him, contrived charges to justify the arrest, submitted false police reports, and initiated

24

his criminal prosecution in bad faith”).
As such, the Court DENIES City Defendants’ motion to dismiss Plaintiffs’ malicious

25
26

prosecution claims.

27

///

28

///
13

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1
2

J.

Retaliatory Prosecution

County Defendants argue Plaintiffs lack standing to bring First Amendment retaliatory

3

prosecution claims and alternatively fail to state such claims. (ECF No. 99-1 at 20.) County

4

Defendants add that there is no Fourth Amendment right to be free from retaliatory prosecution.

5

(Id. at 21.) City Defendants also argue Plaintiffs fail to state claims for retaliatory prosecution

6

because there are no allegations that Evers personally participated in the alleged constitutional

7

violations. (ECF No. 100 at 14.) In opposition, Plaintiffs argue they have standing to bring First

8

Amendment claims based on their association with Carson. (ECF No. 105 at 28.) Plaintiffs do

9

not address County Defendants’ arguments as to the Fourth Amendment.

10

At the outset, the Court agrees there is no Fourth Amendment right to be free from

11

retaliatory prosecution. See Adams v. Kraft, No. 10-CV-00602-LHK, 2011 WL 846065, at *7

12

(N.D. Cal. Mar. 8, 2011) (dismissing Fourth Amendment retaliatory prosecution claim based on a

13

lack of authority that such a cause of action exists). Plaintiffs fail to provide any authority or

14

argument to convince the Court otherwise. Therefore, to the extent Plaintiffs’ retaliatory

15

prosecution claims are premised on the Fourth Amendment, those claims are DISMISSED

16

without leave to amend.

17

Turning to retaliatory prosecution claims under the First Amendment, such claims require

18

“that (1) [Plaintiffs were] engaged in a constitutionally protected activity, (2) the [Defendants’]

19

actions would chill a person of ordinary firmness from continuing to engage in the protected

20

activity and (3) the protected activity was a substantial or motivating factor in [Defendants’]

21

conduct.” Capp v. Cnty. of San Diego, 940 F.3d 1046, 1053 (9th Cir. 2019) (quotation marks and

22

citation omitted). To prevail on such a claim, a plaintiff must establish that the defendant’s

23

retaliatory animus was the “but-for” cause of the plaintiff’s injury, “meaning that the adverse

24

action against the plaintiff would not have been taken absent the retaliatory motive.” Nieves v.

25

Bartlett, 139 S. Ct. 1715, 1725 (2019).

26

County Defendants take issue with the fact that Plaintiffs do not allege they were

27

personally engaged in protected speech. (ECF No. 99-1 at 20.) In response, Plaintiffs summarily

28

argue that, as family members to Carson, they deserve First Amendment protection for Carson’s
14

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1

criticism of public officials. (ECF No. 105 at 28). Plaintiffs support this theory by citing one

2

paragraph in the SAC, which describes various actions taken by Carson (ECF No. 96 at ¶ 90), as

3

well as one out-of-district decision that has questionable bearing on the instant case. (ECF No.

4

105 at 28 (citing Lewis v. Eufaula City Bd. of Educ., 922 F. Supp. 2d 1291 (M.D. Ala. 2012)).

5

This is insufficient to survive a motion to dismiss. Plaintiffs do not clearly allege that Carson’s

6

actions warrant First Amendment protection, nor do they allege how such protection would

7

extend to Plaintiffs. Because Plaintiffs fail to allege the first element of their First Amendment

8

retaliatory prosecution claims, the Court DISMISSES those claims with leave to amend and

9

declines to address Defendants’ remaining arguments as to these claims. Capp, 940 F.3d at 1053.

10
11
12
13

Accordingly, the Court GRANTS Defendants’ motions to dismiss the retaliatory
prosecution claims, with leave to amend as to the First Amendment claims only.
K.

Fourteenth Amendment

County Defendants argue Plaintiffs fail to state substantive due process claims under the

14

Fourteenth Amendment. (ECF No. 99-1 at 21.) In opposition, Plaintiffs argue they adequately

15

allege Fourteenth Amendment claims based on Defendants’ deliberate fabrication of evidence and

16

withholding of exculpatory evidence. (ECF No. 105 at 29–30.)

17

As a preliminary matter, Plaintiffs do not allege deliberate fabrication of evidence as a

18

basis for their Fourteenth Amendment claims. (ECF No. 96 at 51–52); see McDonough v. Smith,

19

139 S. Ct. 2149, 2156 (2019) (setting forth the elements of a deliberate fabrication claim); see

20

also Caldwell v. City & Cnty. of San Francisco, 889 F.3d 1105, 1112 (9th Cir. 2018) (same).

21

Rather, the factual allegations under the Fourteenth Amendment claims relate solely to the

22

withholding of exculpatory evidence. (ECF No. 96 at 51–52.) As such, the Court declines to

23

consider Plaintiffs’ arguments about deliberate fabrication. To the extent Plaintiffs intended to

24

allege deliberate fabrication as a basis for their Fourteenth Amendment claims, the Court will

25

give them the opportunity to clearly allege that theory in an amended complaint.

26

As it is, Plaintiffs allege “Bunch and Ferreira turned over 53 discs of previously

27

undisclosed investigative materials in 2016, more than a year after Plaintiffs’ arrests and ten

28

months into the preliminary hearing.” (ECF No. 96 at 51.) Plaintiffs allege that this evidence
15

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1

included (1) a polygraph showing that a key witness was being truthful when he denied being

2

involved in the Kauffman murder and (2) deleted footage showing drug dealers at the location

3

where Kauffman’s remains were found before information about the location was known to the

4

public. (Id. at 51–52.) Plaintiffs allege Fladager, Harris, and Ferreira acted as supervisors and

5

investigators when the exculpatory evidence was withheld. (Id. at 52.) Plaintiffs allege Georgia

6

DeFilippo spent 50 days in jail and both Plaintiffs suffered an unusual period of confinement by

7

being forced to sit through an unusually lengthy preliminary hearing until the charges against

8

them were dismissed. (Id.)

9

The Ninth Circuit has recognized that where “investigating officers, acting with deliberate

10

indifference or reckless disregard for a suspect’s right to freedom from unjustified loss of liberty,

11

fail to disclose potentially dispositive exculpatory evidence to the prosecutors, leading to the

12

lengthy detention of an innocent man, they violate the due process guarantees of the Fourteenth

13

Amendment.” Tatum v. Moody, 768 F.3d 806, 816 (9th Cir. 2014). However, the Ninth Circuit

14

“emphasize[d] the narrowness of the constitutional rule . . ., which is restricted to detentions of

15

(1) unusual length, (2) caused by the investigating officers’ failure to disclose highly significant

16

exculpatory evidence to prosecutors, and (3) due to conduct that is culpable in that the officers

17

understood the risks to the plaintiff’s rights from withholding the information or were completely

18

indifferent to those risks.” Id. at 819–20.

19

In the instant case, County Defendants correctly point out that Plaintiffs do not cite

20

allegations to show Jacobson or Brown’s personal participation in withholding exculpatory

21

evidence, which warrants dismissal of these claims against those individuals. The Court is also

22

not convinced that Plaintiffs have adequately alleged they were detained for an “unusual length”

23

of time. In Tatum, the defendant was subject to pretrial detention for over two years because

24

police withheld highly material evidence from prosecutors during that time. 768 F.3d at 809. In

25

contrast, Plaintiffs allege Georgia DeFilippo spent 50 days in jail but do not mention how long

26

Christina DeFilippo was detained. (ECF No. 96 at 52.) Plaintiffs instead focus on the ten-month

27

period they had to “sit through” the preliminary hearing, without citing any authority to suggest

28

that attending a preliminary hearing is a deprivation of liberty equivalent to a detention. (Id.)
16

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1
2
3
4

Accordingly, the Court GRANTS County Defendants’ motion to dismiss Plaintiffs’
Fourteenth Amendment claims with leave to amend.
L.

Monell

County Defendants argue Plaintiffs fail to state Monell claims. (ECF No. 99-1 at 24.) In

5

opposition, Plaintiffs argue they adequately allege Monell claims based primarily on allegations

6

about Fladager and Harris’s ratification of the alleged misconduct. (ECF No. 105 at 31.)

7

It is well-established that municipalities cannot be held liable under § 1983 for

8

unconstitutional torts of their employees based solely on respondeat superior. Monell v. Dep’t of

9

Soc. Servs. of City of N.Y., 436 U.S. 658, 693–94 (1978). Pursuant to Monell, a municipality is

10

only liable under § 1983 when its own illegal acts are a “moving force” in the constitutional

11

violation. Id. A plaintiff may assert Monell liability on one of three grounds: (1) a longstanding

12

practice or custom, which constitutes the “standard operating procedure” of the local government

13

entity; (2) omissions or failures to act that amount to a local government policy of deliberate

14

indifference to constitutional rights; or (3) a local government official with final policy-making

15

authority ratifies a subordinate’s unconstitutional conduct. Clouthier v. Cnty. of Contra Costa,

16

591 F.3d 1232, 1249–50 (9th Cir. 2010), overruled on other grounds by Castro v. Cnty. of L.A.,

17

833 F.3d 1060, 1070 (9th Cir. 2016).

18

Because Plaintiffs have failed to allege underlying First or Fourteenth Amendment claims,

19

Plaintiffs’ Monell claims as to those violations are DISMISSED with leave to amend. See

20

Pastora v. Cnty. of San Bernardino, No. EDCV211410JGBSPX, 2022 WL 2965778, at *5 (C.D.

21

Cal. May 19, 2022) (“[A] Monell claim cannot survive without an underlying constitutional

22

violation.”). As to the underlying Fourth Amendment claims based on judicial deception and

23

malicious prosecution, Plaintiffs allege that Fladager and Harris were final policymakers for the

24

County. (ECF No. 96 at ¶ 105.) Plaintiffs also allege that Fladager and Harris ratified,

25

supervised, and condoned unconstitutional policies and decision-making, including the coercion

26

of criminal defendants to give false statements against Carson and submission of deceptive

27

warrants. (Id. at ¶¶ 56, 57, 70, 76.)

28

Taking these allegations in the light most favorable to Plaintiffs and drawing all
17

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1

reasonable inferences in their favor, the Court concludes Plaintiffs sufficiently allege the County,

2

through final decision and policymakers, knew of and approved the alleged constitutional

3

violations. See Anglero-Wyrick v. Cnty. of Sonoma, No. 21-CV-01985-SK, 2021 WL 4170677, at

4

*3 (N.D. Cal. Sept. 14, 2021) (“Whether these allegations support a Monell claim for ratification

5

or simply further support a claim that the County had a pre-existing policy which caused the

6

constitutional violations, Plaintiff has sufficiently alleged a Monell claim.”).
Accordingly, County Defendants’ motion to dismiss is GRANTED with leave to amend

7
8

with respect to the Monell claims based on violations of the First and Fourteenth Amendment and

9

DENIED with respect to the Monell claims based on violations of the Fourth Amendment.

10

M.

11

California Civil Code § 52.1

County Defendants argue Plaintiffs fail to state claims under California Civil Code § 52.1

12

(the “Bane Act”) because they do not allege Defendants had a “specific intent” to violate

13

Plaintiffs’ constitutional rights. (ECF No. 99-1 at 27.) County Defendants further argue

14

Plaintiffs fail to state any factual allegations against Brown. (Id.) Lastly, County Defendants

15

argue Fladager, Harris, and Ferreira are immune from liability under California Government

16

Code § 820.8.4 (Id.; ECF No. 109 at 9.) City Defendants argue Plaintiffs cannot state Bane Act

17

claims because they have not alleged viable § 1983 claims against Evers. (ECF No. 100 at 19.)

18

In opposition to County Defendants’ motion, Plaintiffs argue Defendants’ specific intent is

19

evidenced by their continued investigation of Plaintiffs despite the lack of any evidence against

20

them. (ECF No. 105 at 32 (citing ECF No. 96 at ¶ 45).) In opposition to City Defendants’

21

motion, Plaintiffs argue they have sufficiently alleged that Evers participated in the constitutional

22

violations. (ECF No. 106 at 28.)
The Bane Act provides a private cause of action against anyone who “interferes by threats,

23
24

intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the

25
26
27
28

4

Because the Court concludes Plaintiffs fail to allege Bane Act claims, the Court need not
and does not address whether § 820.8 applies. The Court notes, however, that while § 820.8
limits vicarious liability, it is inapplicable if a plaintiff alleges facts showing a supervisory
defendant’s culpable action or inaction proximately caused the injury. Rodriguez v. Cnty. of Los
Angeles, 891 F.3d 776, 799 (9th Cir. 2018).
18

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1

exercise or enjoyment by an individual or individuals of rights secured by the Constitution or

2

laws of the United States, or laws and rights secured by the Constitution or laws of California.”

3

Cal. Civil Code § 52.1(a). “[T]he Bane Act does not require the ‘threat, intimidation or coercion’

4

element of the claim to be transactionally independent from the constitutional violation alleged.”

5

Reese v. Cnty. of Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018). However, the Bane Act

6

requires Plaintiffs to show that Defendants had a specific intent to violate their constitutional

7

rights. Id. “[A] reckless disregard for a person’s constitutional rights is evidence of a specific

8

intent to deprive that person of those rights.” Id. at 1045.

9

The Court agrees with Defendants that Plaintiffs’ Bane Act claims are insufficient. In the

10

Bane Act claims, the SAC alleges “Bunch, Jacobson, and Evers used threats and coercive

11

interview tactics to secure false statements from witnesses with the intent to deprive Carson of his

12

constitutional rights.” (ECF No. 96 at ¶ 111 (emphasis added).) The SAC then alleges in a

13

conclusory fashion that “Plaintiffs were subjected to threats, intimidation and coercion.” (Id. at ¶

14

112.) Neither the SAC nor Plaintiffs’ opposition clearly point to factual allegations suggesting

15

individual Defendants acted with the specific intent to interfere with Plaintiffs’ rights as to each

16

purported constitutional violation, or that they did so by “threats, intimidation, or coercion.”

17

Reese, 888 F.3d 1030 at 1040.

18
19
20
21
22
23

As such, the Court GRANTS Defendants’ motions to dismiss Plaintiffs’ Bane Act claims
with leave to amend.
N.

California Civil Code § 47

County Defendants argue the Court should dismiss Plaintiffs’ defamation claims based on
California Civil Code § 47. (ECF No. 99-1 at 28.) Plaintiffs oppose. (ECF No. 105 at 33.)
Section 47 states in relevant part, “[a] privileged publication or broadcast is one made: (a)

24

In the proper discharge of an official duty; [or] (b) In any (1) legislative proceeding, (2) judicial

25

proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or

26

course of any other proceeding authorized by law.”

27

County Defendants argue Plaintiffs’ defamation claims are based on statements made at a

28

press conference announcing Plaintiffs’ arrests. (ECF No. 99-1 at 28.) County Defendants argue
19

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1

the litigation privilege set forth in § 47 applies because these statements were made in the

2

discharge of the district attorneys’ official duties and were made as part of the criminal

3

prosecution. (Id. at 28–29.) Plaintiffs do not refute these points and instead argue that § 47 does

4

not apply to malicious prosecution claims and statements to the press are not privileged because

5

the press is not a participant to the proceedings. (ECF No. 105 at 33.)

6

The briefing on this issue is subpar on both sides. However, to the extent that Plaintiffs’

7

allegations are based on statements subject to § 47, Plaintiffs’ only viable claim is one for

8

malicious prosecution. Flores v. Emerich & Fike, 416 F. Supp. 2d 885, 902 (E.D. Cal. 2006)

9

(dismissing a defamation claim and stating “[t]he litigation privilege does not apply to claims of

10

malicious prosecution [which are] . . . perhaps the only exception to the absolute nature of the

11

litigation privilege”); Oei v. N. Star Cap. Acquisitions, LLC, 486 F. Supp. 2d 1089, 1102 (C.D.

12

Cal. 2006) (“[O]nly claims that incorporate all elements of a malicious prosecution claim are

13

exempt from operation of the litigation privilege.”) (citing Hagberg v. Cal. Federal Bank FSB, 32

14

Cal. 4th 350, 375 (2004)). The Court also notes that Plaintiffs fail to adequately explain why the

15

litigation privilege does not extend to statements to the press when the parties invoking the

16

litigation privilege in this case are the district attorneys. For their part, County Defendants cite

17

various cases where courts found the litigation privilege applied to district attorney’s statements

18

at press conferences and in press releases. (ECF No. 99-1 at 28.)

19

For these reasons, the Court GRANTS County Defendants’ motion to dismiss Plaintiffs’

20

defamation claims. Although the Court is doubtful as to Plaintiffs’ ability to allege proper

21

defamation claims due to § 47, the Court will give Plaintiffs an opportunity to amend.

22

O.

Qualified Immunity

23

City Defendants argue Evers is entitled to qualified immunity. (ECF No. 100 at 18–19.)

24

In opposition, Plaintiffs argue Evers violated clearly established law because he knew or should

25

have known there was no probable cause to arrest or prosecute Plaintiffs. (ECF No. 106 at 27.)

26

In § 1983 actions, qualified immunity “protects government officials from civil liability

27

where ‘their conduct does not violate clearly established statutory or constitutional rights of

28

which a reasonable person would have known.’” Cunningham v. Kramer, 178 F. Supp. 3d 999,
20

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1

1003 (E.D. Cal. 2016) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). The doctrine

2

“gives government officials breathing room to make reasonable but mistaken judgments” and

3

“protects ‘all but the plainly incompetent or those who knowingly violate the law.’” Ashcroft v.

4

al-Kidd, 563 U.S. 731, 743 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

5

In the instant case, the Court cannot conclude that qualified immunity is appropriate at this

6

stage. Dismissal under Rule 12(b)(6) “is not appropriate unless [the court] can determine, based

7

on the complaint itself, that qualified immunity applies.” Id.; see also Jensen v. City of Oxnard,

8

145 F.3d 1078, 1085 (9th Cir. 1998). Plaintiffs’ claims involve a complex array of factual

9

allegations that, if true, may preclude City Defendants from qualified immunity. The Court

10

concludes a determination of whether qualified immunity applies in this case should be made

11

after further development of the factual record, such as on a motion for summary judgment.

12
13

Therefore, the Court DENIES City Defendants’ motion to dismiss based on qualified
immunity.

14
15

P.

False Arrest/Imprisonment

City Defendants argue Plaintiffs fail to allege that Evers had anything to do with

16

Plaintiffs’ arrests and, alternatively, Evers is immune from liability. (ECF No. 100 at 20–21.) In

17

opposition, Plaintiffs argue they state a claim and Evers is not immune from liability. (ECF No.

18

106 at 29–30.)

19

A false imprisonment claim in an arrest context arises upon “(1) the nonconsensual,

20

intentional confinement of a person, (2) without lawful privilege, and (3) for an appreciable

21

period of time, however brief.” Easton v. Sutter Coast Hosp., 80 Cal. App. 4th 485, 496 (2000).

22

An officer acts “without lawful privilege” either when he arrests without probable cause, or when

23

he maliciously arrests another by personally serving an arrest warrant issued solely on

24

deliberately falsified information. Blaxland v. Commonwealth Dir. of Pub. Prosecutions, 323

25

F.3d 1198, 1205 n.4 (9th Cir. 2003).

26

As mentioned, Plaintiffs allege Evers was part of the group that chose what charges to

27

seek and facts to include in the arrest warrant affidavit. (ECF No. 96 at ¶ 46.) Plaintiffs further

28

allege Evers spoke with Brown about the arrest warrant, knew it contained false and misleading
21

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1

statements and omissions, and did nothing to correct it. (Id. at ¶ 61.) In addition, Plaintiffs allege

2

Evers used various abusive and improper interviewing techniques to coerce a false confession

3

from Woody and failed to disclose material information from the interview on the arrest warrant

4

affidavit. (Id.) These allegations are sufficient to provide at the very least a reasonable inference

5

that Evers was an integral participant in arresting Plaintiffs without probable cause and/or based

6

on an arrest warrant issued based on deliberately falsified information. See Blaxland, 323 F.3d at

7

1205 n.4; see also Harden v. S.F. Bay Area Rapid Transit Dist., 215 Cal. App. 3d 7, 15–16

8

(1989) (“All who take part in or assist in the commission of a false imprisonment are joint

9

tortfeasors and may be joined as defendants without an allegation or proof of a conspiracy.”). As

10

to City Defendants’ immunity argument, the allegations already discussed at length support a

11

reasonable inference that Evers acted with malice, which would preclude immunity. See Harden,

12

215 Cal. App. 3d at 15 (“Where the arrest is made with malice . . . no immunity attaches, whether

13

or not the arrest was made pursuant to warrant or legal process.”).

14
15
16

Therefore, the Court DENIES City Defendants’ motion to dismiss the false arrest/
imprisonment claims.
Q.

Intentional Infliction of Emotional Distress (“IIED”)

17

City Defendants argue Plaintiffs fail to allege IIED claims. (ECF No. 100 at 21.) In

18

opposition, Plaintiffs argue they have adequately alleged IIED claims. (ECF No. 106 at 30.)

19

To succeed on an IIED claim, Plaintiffs must show that Defendants intentionally or

20

recklessly caused them to suffer “severe or extreme emotional distress” through their “extreme

21

and outrageous conduct.” Hughes v. Pair, 46 Cal. 4th 1035, 1050 (2009). “A defendant’s

22

conduct is outrageous when it is so extreme as to exceed all bounds of that usually tolerated in a

23

civilized community.” Id. (internal quotation marks omitted).

24

Plaintiffs allege they have suffered severe emotional distress because Defendants,

25

including Evers, maliciously included false and misleading information and omitted exculpatory

26

information from the arrest warrant affidavit leading to Plaintiffs’ prosecutions for murder. (ECF

27

No. 96 at 55.) A reasonable trier could decide the conduct alleged in the SAC was so outrageous

28

as to exceed all bounds of that usually tolerated in a civilized community. See Morse v. Cnty. of
22

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1

Merced, No. 116CV00142DADSKO, 2016 WL 3254034, at *13 (E.D. Cal. June 13, 2016)

2

(denying a motion to dismiss IIED claim where the plaintiff alleged “individual defendants

3

knowingly misrepresented information in order to arrest him and charge him with murder,

4

apparently in order to exact political retribution against plaintiff’s father, a local politician who

5

had been critical of the Sheriff’s Department”). While Plaintiffs admittedly could have laid their

6

allegations out more clearly within their IIED claim, the Court finds the allegations in the SAC

7

are sufficient to survive a motion to dismiss.

8

Thus, the Court DENIES City Defendants’ motion to dismiss the IIED claims.

9

IV.

10
11
12
13
14
15
16

CONCLUSION

For the foregoing reasons, the Court GRANTS in part and DENIES in part Defendants’
Motions to Dismiss (ECF Nos. 99, 100) as follows:
1. County Defendants’ motion (ECF No. 99) is GRANTED as follows:
a. GRANTED with leave to amend as to claims against Fladager, Harris, and
Ferreira based on conduct prior to April 10, 2016;
b. GRANTED without leave to amend as to the official capacity claims
against individual County Defendants;

17

c. GRANTED as to the retaliatory prosecution claims, with leave to amend as

18

to those claims brought under the First Amendment and without leave to

19

amend as to claims brought under the Fourth Amendment;

20

d. GRANTED with leave to amend as to the Fourteenth Amendment claims;

21

e. GRANTED with leave to amend with respect to Monell claims based on

22

violations of the First and Fourteenth Amendment;

23

f. GRANTED with leave to amend as to the Bane Act claims; and

24

g. GRANTED with leave to amend as to the defamation claims.

25
26

County Defendants’ motion is DENIED in all other respects.
2. City Defendants’ motion (ECF No. 100) is GRANTED as follows:

27

a. GRANTED as to the retaliatory prosecution claims, with leave to amend as

28

to those claims brought under the First Amendment and without leave to
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Case 1:18-cv-00496-TLN-BAM Document 111 Filed 09/14/22 Page 24 of 24
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amend as to claims brought under the Fourth Amendment; and
b. GRANTED with leave to amend as to the Bane Act claims.
City Defendants’ motion is DENIED in all other respects.
Plaintiffs may file an amended complaint — only to cure deficiencies addressed in this

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Order — not later than thirty (30) days from the electronic filing date of this Order. If Plaintiffs

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opt not to file an amended complaint, this action will proceed on the remaining claims in the

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SAC. Defendants shall file responsive pleadings not later than twenty-one (21) days from the

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electronic filing date of the amended complaint, or, if Plaintiffs opt to proceed on the SAC, not

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later than twenty-one (21) days from Plaintiffs’ deadline for filing an amended complaint.

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IT IS SO ORDERED:

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DATED: September 13, 2022

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Troy L. Nunley
United States District Judge

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