Gardner v. California Highway Patrol et al

Filing 25

ORDER denying Defendant Miller's 10 Motion to Dismiss signed by Judge John A. Mendez on 2/12/15. (Kaminski, H)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
10

DREW GARDNER,

11

14
15
16
17

2:14-cv-02730 JAM CMK

Plaintiff,

12
13

No.

v.

ORDER DENYING DEFENDANT MILLER’S
MOTION TO DISMISS

CALIFORNIA HIGHWAY PATROL;
CALIFORNIA HIGHWAY PATROL
OFFICER J.J. FISHER;
CALIFORNIA HIGHWAY PATROL T.
NEWMAN; TEHAMA COUNTY
SHERIFF’S DEPARTMENT; TEHAMA
COUNTY SHERIFF’S DEPARTMENT
DEPUTY INVESTIGATOR ED
MCCULLOUGH; KENNETH MILLER;
and DOES 1 through 50,

18
Defendants.
19
20

This matter is before the Court on Defendant Kenneth

21

Miller’s (“Defendant”) motion to dismiss the seventh and ninth

22

causes of action (Doc. #10) of Plaintiff (“Plaintiff”) Drew

23

Gardner’s complaint (Doc. #1).

24

Defendant’s motion is DENIED. 1

For the following reasons,

25
26
27
28

1

This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for February 11, 2015.
1

1

I.

2

FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

On January 2, 2014, Plaintiff was riding as a passenger in a

3

Jeep Wrangler that had been reported stolen.

4

Upon seeing a police car, the driver of the Jeep abandoned the

5

car and told Plaintiff to do the same.

6

was apprehended and taken into custody at Tehama County Jail.

7

Compl. ¶¶ 19, 25.

8

confiscating a “clear white baggie with a white crystalline

9

substance” - which tested positive for methamphetamine – from

10

Compl. ¶ 18.

Plaintiff

During booking, the arresting officer reported

Plaintiff’s jacket.

11

Compl. ¶¶ 16-17.

Compl. ¶ 26.

On January 3, 2014, Ed McCullough – a deputy investigator

12

with the Tehama County Sheriff’s Department – was tasked with

13

conducting an investigation of this incident.

14

McCullough interviewed Plaintiff, who told him that he was a

15

passenger in the car and had been offered a ride by Charles Jacob

16

Steele, whom “he had just met at a mutual friend’s house.”

17

Compl. ¶ 32.

18

arrest, they had stopped at a car dealership and a gas station,

19

and that witnesses at both locations could confirm that he was

20

not the driver of the stolen vehicle.

21

McCullough followed up on both of these leads, and spoke with a

22

witness at the car dealership.

23

Plaintiff out of a photo line-up, and identified him as the

24

passenger of the vehicle.

25

“failed to alert anyone at the Tehama [County] District

26

Attorney’s office, the Tehama County Jail, or the Shasta County

27

Sheriff’s department” of these exculpatory findings.

28

36.

Compl. ¶ 30.

Plaintiff informed McCullough that, prior to his

Compl. ¶¶ 33-34.

Compl. ¶ 34.

Compl. ¶ 35.

2

The witness picked

McCullough allegedly

Compl. ¶

1

On January 6, 2014, Plaintiff was charged with: (1) unlawful

2

driving or taking of a vehicle; (2) receiving stolen property –

3

motor vehicle; (3) driving under the influence; (4) bringing

4

contraband into the jail; (5) possession of a controlled

5

substance; and (6) carrying a dirk or dagger.

6

Defendant Kenneth Miller was assigned to be his public defender.

7

Compl. ¶ 41.

8
9

Compl. ¶ 38.

On January 8, 2014, McCullough resumed his investigation and
visited the gas station at which Plaintiff claimed to have

10

stopped before his arrest.

11

surveillance from the date of the incident, and allegedly

12

observed that Plaintiff was the passenger in the vehicle.

13

¶ 42.

14

McCullough Report”), but it is unclear when this report was filed

15

with the Tehama County District Attorney’s Office.

16

Plaintiff alleges that it “failed to make its way to the Tehama

17

County District Attorney’s Office” during the period that

18

Defendant represented Plaintiff.

19

Compl. ¶ 42.

He obtained video

Compl.

McCullough wrote up a report of his findings (“the

Compl. ¶ 45.

Compl. ¶ 48.

Between January 6, 2014 – when he was appointed as

20

Plaintiff’s attorney – and February 25, 2014 – when he was fired

21

by Plaintiff – Defendant Miller allegedly “never once interviewed

22

Plaintiff to obtain Plaintiff’s version of the facts nor

23

conducted any investigation.”

24

Plaintiff’s mother retained private counsel to represent

25

Plaintiff.

26

an investigation and allegedly discovered substantially the same

27

exculpatory information which McCullough had learned through his

28

official investigation.

Compl. ¶ 49.

Compl. ¶ 47.

On February 7, 2014,

Plaintiff’s retained counsel conducted

Compl. ¶¶ 50-53.
3

On March 12, 2014,

1

Plaintiff’s retained counsel sent a letter summarizing its

2

findings to the Tehama County District Attorney’s Office.

3

¶ 54.

4

provided Plaintiff with a copy of the McCullough Report.

5

¶ 55.

6

against Plaintiff were dropped.

7

in custody on the three booking-related pending charges.

8

¶ 56.

Compl.

That same day, the Tehama County District Attorney
Compl.

9

On March 17, 2014, the three vehicle-related counts
Compl. ¶ 56.

Plaintiff remained
Compl.

On April 1, 2014, Plaintiff “persuaded Sargeant Baulkin at

10

the Tehama County Jail to look at the booking video.”

11

¶ 58.

12

which allegedly contained the “baggie of meth” confiscated during

13

booking.

14

arresting officer carried the jacket into the booking room.

15

Compl. ¶ 58.

16

Plaintiff’s booking were dismissed.

17

released from custody that day.

18

Compl.

The video showed that Plaintiff was not wearing the jacket

Compl. ¶ 58.

Instead, the video showed that the

On April 21, 2014, the remaining counts relating to
Compl. ¶ 59.

Plaintiff was

Compl. ¶ 59.

On October 17, 2014, Plaintiff filed his complaint in Tehama

19

County Superior Court.

20

the matter to this Court.

21

action. As noted above, only the seventh cause of action for

22

negligent infliction of emotional distress and the ninth cause of

23

action for professional negligence are brought against the moving

24

defendant Kenneth Miller. The remaining causes of action are

25

brought against individual officers and municipal police entities

26

for their alleged role played in Plaintiff’s arrest and

27

incarceration.

On November 11, 2014, Defendants removed
The Complaint includes nine causes of

28
4

1
2

II.

OPINION

3

A.

Judicial Notice

4

Defendant Miller requests that the Court take judicial

5

notice (Doc. #11) of the complaint filed in this action.

The

6

complaint is already part of the record in this case, and the

7

request is denied as unnecessary.

8

B.

Discussion

9

Defendant Miller argues that both causes of action brought

10

against him – negligent infliction of emotional distress and

11

professional negligence – must be dismissed because Plaintiff has

12

failed to allege facts sufficient to establish the essential

13

element of causation.

14

argues that Plaintiff has failed to allege that he would have

15

spent less time in jail if Defendant had competently represented

16

him.

17

especially his failure to interview Plaintiff during the entirety

18

of his representation – “resulted in additional jail time for

19

Plaintiff.”

20

Mot. at 8.

Mot. at 7.

Specifically, Defendant Miller

Plaintiff responds that Defendant’s inaction –

Opp. at 3-4.

Causation is a necessary element of both negligent

21

infliction of emotional distress and professional negligence.

22

Marlene F. v. Affiliated Psychiatric Med. Clinic, Inc., 48 Cal.

23

3d 583, 588 (1989); Oasis W. Realty, LLC v. Goldman, 51 Cal. 4th

24

811, 821 (2011).

25

action, Plaintiff must allege that the harm would not have

26

occurred “but for” Defendant’s breach of his duty.

27

words, Plaintiff must allege facts which give rise to a

28

reasonable inference that he would have spent less time in jail

Thus, to state a claim for these two causes of

5

In other

1
2

if Defendant had been reasonably competent in representing him.
Plaintiff was in custody from January 2, 2014 until April

3

21, 2014, for a total of 110 days (Plaintiff’s calculation of 91

4

days appears to be incorrect).

5

release was the result of two discrete events.

6

12, 2014, Plaintiff’s retained counsel obtained a copy of the

7

exculpatory McCullough Report from the Tehama County District

8

Attorney’s Office.

9

of the three vehicle-related counts against Plaintiff, on March

Compl. ¶¶ 26, 59.

Compl. ¶¶ 54-55.

Plaintiff’s

First, on March

This led to the dismissal

10

17, 2014.

11

“persuaded Sargeant Baulkin at the Tehama County Jail to look at

12

the booking video,” which showed that Plaintiff was not wearing

13

the jacket which contained a “baggie of meth.”

14

Approximately three weeks later, the remaining counts “related to

15

[the] booking of Plaintiff” were dismissed.

16

Compl. ¶ 56.

Second, on April 1, 2014, Plaintiff

Compl. ¶ 58.

Compl. ¶ 59.

Plaintiff has alleged that he was represented by Defendant

17

Miller from January 6, 2014 until February 25, 2014 – roughly

18

seven weeks.

19

Plaintiff alleges that Defendant Miller “never once interviewed

20

Plaintiff to obtain Plaintiff’s version of the facts nor

21

conducted any investigation.”

22

inferences can reasonably be drawn from Plaintiff’s factual

23

allegations: (1) if Defendant Miller had interviewed his client

24

promptly, he would have learned that Plaintiff was not wearing

25

the jacket at booking; (2) Defendant Miller would have relayed

26

this information to the apparently-cooperative Sargeant Baulkin

27

(or another equally helpful corrections officer), and would have

28

been permitted to view the booking video; (3) the video would

Compl. ¶¶ 41, 47.

During these seven weeks,

Compl. ¶ 47.

6

The following

1

have revealed that Plaintiff was not wearing the jacket at the

2

time of booking, and the booking-related charges would have been

3

dismissed well before April 21, 2014.

4

exculpatory McCullough Report did not surface until March 12,

5

2014, Plaintiff would still have been released on March 17, 2014,

6

when the only remaining counts – the three vehicle-related

7

charges – were dismissed.

8

sufficient to establish that Defendant Miller’s failure to

9

interview Plaintiff could have plausibly caused Plaintiff to

10
11

Thus, even if the

Thus, Plaintiff’s allegations are

spend more time in custody.
Defendant contends that Plaintiff “can only speculate that

12

the district attorney’s office might have dropped the charges

13

sooner had a more aggressive defense been initiated during Mr.

14

Miller’s short representation.”

15

considering a motion to dismiss, the Court “must . . . draw all

16

reasonable inferences in favor of the plaintiff.”

17

Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by

18

Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S.

19

319, 322 (1972).

20

– and all favorable, reasonable inferences drawn from these

21

allegations – “plausibly suggest” that Plaintiff is entitled to

22

relief on his professional negligence and negligent infliction of

23

emotional distress claims.

24

(9th Cir. 2011), cert. denied, 132 S. Ct. 2101, 182 L. Ed. 2d 882

25

(U.S. 2012).

26

Defendant promptly interviewed Plaintiff, the events leading to

27

Plaintiff’s release would have unfolded exactly as they did in

28

reality, albeit much sooner.

Mot. at 9.

However, in

Scheuer v.

As noted above, Plaintiff’s factual allegations

Starr v. Baca, 652 F.3d 1202, 1216

It is far from speculation to infer that, had

As discussed above, this would have
7

1

ensured Plaintiff’s release on March 17, 2014, as opposed to

2

April 21, 2014.

3

Given the liberal standard required to be applied by the

4

Court on a motion to dismiss, Plaintiff has sufficiently pleaded

5

the element of causation for both negligent infliction of

6

emotional distress and professional negligence.

7

Miller has only challenged Plaintiff’s allegations with regard to

8

the element of causation, his motion to dismiss is DENIED.

As Defendant

9
10
11

III.

ORDER

For the reasons set forth above, the Court DENIES Defendant

12

Miller’s motion to dismiss:

13

IT IS SO ORDERED.

14

Dated: February 12, 2015

15
16
17
18
19
20
21
22
23
24
25
26
27
28
8