Santana et al v. County of Yuba et al

Filing 59

ORDER signed by District Judge Kimberly J. Mueller on 8/18/16; GRANTING 41 Motion to Dismiss. GRANTING-IN-PART 42 Motion to Dismiss. The first, second, third, fourth, tenth, and eleventh claims are dismissed. The fifth claim, for malicious pro secution, is dismissed except as asserted by Santana on an equal-protection basis. GRANTING 43 Motion to Dismiss ; GRANTING-IN-PART 44 Motion to Dismiss. The first, second, third, and fourth claims are dismissed. The fifth claim, for malicious prosecution, is dismissed except as asserted by Santana on an equal-protection basis. Any amended complaint is due within twenty-one (21) days. A Status (Pretrial Scheduling) Conference set for 10/13/2016 at 02:30 PM in Courtroom 3 (KJM) before District Judge Kimberly J. Mueller. (Washington, S)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA

JESSE I. SANTANA, et al.,
Plaintiffs,

No. 2:15-cv-00794-KJM-EFB
ORDER

v.
THE COUNTY OF YUBA, et al.,
Defendants.

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Attorneys Jesse Santana and David Vasquez allege they were tried for

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crimes they did not commit because local prosecutors, a judge, another attorney,

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and Yuba County itself wanted to prevent Santana’s appointment to the Sutter

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County Superior Court. Santana and Vasquez are Hispanic, and they attribute

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the prosecution to racial discrimination. The defendants move to dismiss Santa-

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na’s and Vasquez’s first amended complaint.

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The court held a hearing on June 17, 2016. Jaime Leaños appeared for

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Santana and Vasquez. Jeffrey Norlander appeared for Yuba County, Patrick

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McGrath, John Vacek, Mary Barr, and Gene Stober. John Whitesides appeared

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for Randall Elliot. Michael Fox appeared for Judge Julia Scrogin. Wendy Green

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appeared for Timothy Evans.

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The motions are granted in part.
I. ALLEGATIONS

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The defendants move to dismiss the first amended complaint under Fed-

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eral Rule of Civil Procedure 12(b)(6). When considering a motion to dismiss un-

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der that rule, the court assumes the events alleged actually occurred. See, e.g.,

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Santana and Vasquez allege as follows.

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A. Santana’s Judicial Candidacy

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In 2007, Jesse Santana, who is Hispanic, was a prominent attorney

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whose law practice primarily entailed the representation of criminal defendants.

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First Am. Compl. ¶ 44, ECF No. 40. A vacancy opened on the Sutter County

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Superior Court bench, and Santana submitted his application to the Governor’s

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Office for a judicial appointment to the vacant seat. Id. He had strong support

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among the local Hispanic community, which made up about a quarter of both

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Sutter County and the neighboring Yuba County. Id. ¶¶ 44–45. David Vasquez,

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another local attorney, was among his supporters. Id. ¶ 44.

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Despite the substantial Hispanic population in Sutter and Yuba counties,

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the membership of neither the Yuba nor Sutter County Superior Court bench had

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included a Hispanic judge. Id. ¶ 45. This disparity is, Santana and Vasquez al-

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lege, the result of a racist custom and practice within the Yuba and Sutter County

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administrations. Id. ¶ 46. This custom and practice extends to the Yuba County

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District Attorney’s Office, whose attorneys and investigators have a policy to re-

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sist the judicial appointment of any ethnic minority group, including Hispanic

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judges. Id. ¶ 46.

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In 2007, only one other application had been filed for the vacancy on the

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Sutter County Superior Court, by Sutter County Deputy District Attorney Susan

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Green, who is Caucasian and not Hispanic. Id. Green had the support of several

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friends in the Yuba County District Attorney’s Office. Id. Their support was at-

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tributable to a policy of keeping the local judiciary entirely White Caucasian, and

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they feared that the Governor’s office would appoint Santana in an effort to add

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diversity to the local judiciary. Id. ¶ 47. They knew the Governor would make a

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decision in June 2008, so in late 2007, they agreed on a plan to thwart Santana’s

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appointment by filing false criminal charges against him. See id. ¶ 48. They knew

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that if Santana became the object of a criminal investigation, he would be dis-

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qualified. Id. ¶ 49.

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B. Santana and Vasquez Negotiate a Civil Release for Socorro
Acevedo
In November 2007, Socorro Acevedo met with Marysville Police Detec-

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tive Randall Elliott to report that her boss, Joseph Griesa, had sexually assaulted

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and physically abused her. Id. ¶ 30. Acevedo was a minor at the time. Id. She

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showed Elliott text messages and bruises to corroborate her allegations, but El-

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liott thought the case would be difficult to prosecute and recommended she pur-

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sue a civil claim against Griesa instead. Id. ¶¶ 31–32.

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Acevedo sought out an attorney: Jesse Santana. Id. ¶ 33. He confirmed

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that she could file a civil case against Griesa. Id. ¶ 34. Acevedo wanted to take

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care of the matter privately because she wanted to avoid testifying in court, she

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didn’t want her father and brother to find out about it, and she wanted to put the

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events behind her and move away to college. Id. ¶ 33. Santana confirmed the

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matter could probably be resolved privately with the approval of a judge and

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agreed to represent Acevedo without charge. Id. ¶¶ 34–35.

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9

Meanwhile, Detective Elliott phoned Griesa to tell him about Acevedo’s
allegations and advised him to hire a lawyer. Id. ¶ 36. Griesa hired David

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Vasquez. Id. Vasquez and Griesa discussed the possibility of a criminal or civil

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case against Griesa. Id. ¶ 38. Vasquez explained that the District Attorney may

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be less likely to prosecute him criminally if he reached a prompt civil settlement

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agreement with Acevedo. Id. Griesa authorized Vasquez to pursue a civil settle-

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ment and deposited $50,000 into Vasquez’s client trust account so Vasquez could

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use the money to make a good-faith settlement offer. Id.

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In November and December 2007, Santana and Vasquez negotiated a

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civil settlement agreement. Id. ¶ 40. A tentative agreement to settle the case for

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$100,000 was solidified, and draft releases were prepared. Id. Eventually, the fi-

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nal version of the release included the following language:

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In consideration of the sum of one hundred thousand dollars
($100,000.00), Socorro Acevedo will request that criminal charges
not be filed against Joe Griesa, and will exercise any privilege she
may have pursuant to law, not to testify in any proceedings, and she
will not file any civil action, arising out of the underlying facts,
against Joe Griesa. Joe Griesa will pay $50,000.00 now and the remaining $50,000.00 within 60 days. In exchange, Socorro Acevedo
forever releases and discharges Joe Griesa from all claims, demands,
actions, and causes of action of every kind and nature in any way related to Joe Griesa’s interactions with Socorro Acevedo.

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Id. Everyone understood a judge would have to approve this agreement in light

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of Acevedo’s youth. Id.

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Vasquez told Detective Elliott about the proposed agreement, and Elliott

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generally approved of this resolution. Id. ¶ 41. Vasquez also told Yuba County

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Deputy District Attorney Melanie Bendorf about the proposal. Id. Santana like-

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wise contacted Elliott. Id. He explained Acevedo’s motivations, including her

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desire to keep the matter out of public view and put the case behind her, and he

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asked to be present if Elliott interviewed Acevedo. Id. Griesa and Elliott also

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spoke about the proposed release and $100,000 payment, and Elliott suggested

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Griesa get a second opinion from another attorney, Timothy Evans. Id.

3

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2
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C. The Criminal Investigation and Prosecution of Santana and
Vasquez
In December 2007, Susan Green (Santana’s competitor for judicial ap-

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pointment), Patrick McGrath (Yuba County District Attorney), Melanie Bendorf

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(the Yuba County Deputy District Attorney mentioned above), Julia Scrogin (a

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Judge on the Yuba County Superior Court), and Timothy Evans (the attorney

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recommended by Elliott) met over lunch. Id. ¶ 48. McGrath proposed a plan to

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investigate and prosecute bribery charges against Santana. See id. ¶¶ 48–50. The

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group agreed they would falsely characterize the settlement negotiations between

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Acevedo, Griesa, and their attorneys as clandestine attempts at persuading

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Acevedo to withhold information from investigators, prosecutors, and the courts

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in return for money. Id. ¶ 50. Green, McGrath, Bendorf, and Scrogin ignored

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their understanding and evidence showing

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

Acevedo had not agreed to withhold information; rather, she

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agreed not to file a civil case, to ask that the criminal prosecution

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end, and to exercise any privilege she had against testifying;

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

Santana had informed Elliott that Acevedo would agree to an in-

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terview with the detective and asked only that her attorney be

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present;

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

The settlement negotiations were not secret, considering that

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Vasquez had informed Elliott and Bendorf about a potential civil

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settlement agreement; and

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

The negotiations between Acevedo, Griesa, and their attorneys

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were consistent with a longstanding practice among police, pros-

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ecutors, and private attorneys, who had in the past facilitated sim-

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ilar agreements between the victims and perpetrators of sexual as-

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sault at a victim’s request.

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To ensure this investigation and prosecution appeared bona fide, the

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group agreed Vasquez would also be charged. Id. ¶ 50. Soon after this meeting,

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Green, McGrath, Bendorf, and Scrogin sought out the assistance of John Vacek,

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another Deputy District Attorney, and of Mary Barr and Gene Stober, investiga-

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tors, who all agreed to join in the plan. Id. ¶ 48.

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Elliott filed a report of his investigation, but made no recommendation

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on whether criminal charges should be filed against Griesa. Id. ¶ 42. He noted his

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understanding that Griesa and Acevedo had negotiated a settlement agreement

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with Santana’s and Vasquez’s help, and he recommended that the District Attor-

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ney’s Office consider bribery charges against the two attorneys. Id. His report

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included the false assertion that Santana had instructed Acevedo not to speak to

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him. Id. Santana and Vasquez believe the other defendants pressured him into

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including this false assertion, or at least encouraged the misstatement. Id. The

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District Attorney’s Office began investigating possible bribery charges against

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Santana and Vasquez. Id.

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In the meantime, Acevedo and her mother had signed the civil release,

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but Griesa did not sign it because he had no guarantee against a criminal prose-

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cution. Id. ¶ 43. Acevedo had also reconsidered her decision after her father

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learned about the alleged abuse and told her he wanted a criminal prosecution.

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Id. Santana informed Detective Elliott and Vasquez of these developments, and

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Vasquez returned the $50,000 to Griesa. Id. Acevedo also hired a new lawyer,

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Michael Trezza. Id.

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A search warrant was obtained for Santana’s and Vasquez’s law offices,

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and a search was completed in May 2008, the month before the Governor was

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expected to make his decision on Santana’s application. Id. ¶ 51(b). Santana first

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learned of the charges when the search warrant was executed, and reported them

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immediately to the commission considering his application, as he was obligated

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to do. Id. ¶ 52. As a result, he was disqualified as a candidate for the judgeship,

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and Green was appointed. Id.

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In October 2008, Judge Scrogin presided over a grand jury, which re-

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turned an indictment against Santana and Vasquez the next month. Id. ¶ 53. San-

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tana and Vasquez were booked, fingerprinted, photographed, arraigned, ordered

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to make further court appearances, ordered to surrender their passports, and or-

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dered not to leave the state. Id. They appealed the indictment, arguing Judge

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Scrogin was biased, and the Court of Appeal agreed Judge Scrogin had acted

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without fundamental jurisdiction, rendering the indictment void. Id. ¶ 54. The

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California Attorney General’s Office then took over the prosecution, and the case

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proceeded on a criminal complaint. Id. ¶ 55. A jury trial was conducted in March

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and April 2014. Id. After deliberating for less than an hour, the jury acquitted

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Santana and Vasquez of all charges. Id.

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D. Procedural Matters

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Following their acquittal, Santana and Vasquez filed a complaint in this

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court against Yuba County, the City of Marysville, the Marysville Police De-

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partment, McGrath, Bendorf, Vacek, Barr, Stober, Elliott, Scrogin, and Evans.

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See generally Compl. ECF No. 1. The defendants moved to dismiss under Federal

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Rule of Civil Procedure 12(b)(6). Some defendants also moved to strike the com-

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plaint under California Code of Civil Procedure 425.16, which allows motions

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1

against “strategic lawsuits against public participation” or SLAPPs, and which

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applies in federal court. The court granted the motions to dismiss, partially with

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prejudice and partially with leave to amend, and granted the special motions to

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strike to the extent those motions challenged the complaint’s legal sufficiency.

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Order Mar. 31, 2016 (Prev. Order), ECF No. 37.

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Santana and Vasquez filed an amended complaint on April 22, 2016.

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ECF No. 40. They assert eleven claims against the remaining defendants—Yuba

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County, McGrath, Bendorf, Vacek, Barr, Stober, Elliott, Scrogin, and Evans:

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(1) Violation of their Fourth Amendment rights against unreasonable

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searches and seizures, against all the defendants under 42 U.S.C. §

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1983, id. ¶¶ 56–61;

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(2) Violation of their Fourteenth Amendment rights to equal protection

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from racial discrimination, against all the defendants under 42

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U.S.C. § 1983, id. ¶¶ 62–66;

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(3) Violation of their Fourteenth Amendment rights to due process as a

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procedural matter, against all the defendants under 42 U.S.C. §

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1983, id. ¶¶ 67–71;

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(4) Violation of their Fourteenth Amendment rights to due process as a

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substantive matter, against all the defendants under 42 U.S.C. §

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1983, id. ¶¶ 72–76;

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(5) Violation of their Fourteenth Amendment right to be free from ma-

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licious prosecution, against all the defendants under 42 U.S.C. §

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1983, id. ¶¶ 77–83;

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(6) Conspiracy to deprive them of Fourteenth Amendment rights,

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against all the defendants under 42 U.S.C. §§ 1983 and 1985, id. ¶¶

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84–88;

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(7) A claim against Yuba County under 42 U.S.C. § 1983 for the actions
of McGrath, its official policymaker, id. ¶¶ 89–95;
(8) A claim against Yuba County under 42 U.S.C. § 1983 for maintaining an official policy of racial discrimination, id. ¶¶ 96–102;
(9) Malicious prosecution under California law, against Evans, id. ¶¶
103–07;
(10) Intentional infliction of emotional distress under California law,
against Evans, id. ¶¶ 108–11; and
(11) Negligence under California law, against Evans, id. ¶¶ 112–14.

6

1
2
3

Santana and Vasquez request damages, attorneys’ fees, costs, and any
other appropriate relief. Id. at 25–26.
The defendants move to dismiss all of these claims. Yuba Mot., ECF No.

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44; Elliott Mot., ECF No. 41; Scrogin Mot., ECF No. 43; Evans Mot., ECF No.

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42. Santana and Vasquez oppose these motions. Opp’n Yuba Mot., ECF No. 46;

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Opp’n Elliott Mot., ECF No. 48; Opp’n Scrogin Mot., ECF No. 50; Opp’n Ev-

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ans Mot., ECF No. 49. The defendants replied. Yuba Reply, ECF No. 53; Elliott

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Reply, ECF No. 51; Scrogin Reply, ECF No. 52; Evans Reply, ECF No. 55.

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II. LEGAL STANDARD

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The court’s previous order summarized the applicable legal standard:

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A party may move to dismiss for “failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). The motion
may be granted only if the complaint lacks a “cognizable legal theory” or if its factual allegations do not support a cognizable legal theory. Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1122 (9th
Cir. 2013). The court assumes these factual allegations are true and
draws reasonable inferences from them. Iqbal, 556 U.S. at 678.

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A complaint need contain only a “short and plain statement of the
claim showing that the pleader is entitled to relief,” Fed. R. Civ. P.
8(a)(2), not “detailed factual allegations,” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). But this rule demands more than unadorned accusations; “sufficient factual matter” must make the claim
at least plausible. Iqbal, 556 U.S. at 678. In the same vein, conclusory or formulaic recitations of elements do not alone suffice. Id. (quoting Twombly, 550 U.S. at 555). Evaluation under Rule 12(b)(6) is a
context-specific task drawing on “judicial experience and common
sense.” Id. at 679. And aside from the complaint, district courts have
discretion to examine documents incorporated by reference, Davis v.
HSBC Bank Nevada, N.A., 691 F.3d 1152, 1159–60 (9th Cir. 2012); affirmative defenses based on the complaint’s allegations, Sams v. Yahoo! Inc., 713 F.3d 1175, 1179 (9th Cir. 2013); and proper subjects of
judicial notice, [W. Radio Servs. Co. v. Qwest Corp., 678 F.3d 970, 976
(9th Cir. 2012)].
Should a motion to dismiss be granted, district courts ordinarily allow the plaintiff leave to amend “when a viable case may be presented.” Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir. 2002).
However, “liberality in granting leave to amend is subject to several
limitations.” Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637
F.3d 1047, 1058 (9th Cir. 2011) (citation and quotation marks omitted). Leave need not be granted where the amendment of the complaint would cause the opposing party undue prejudice, is sought in

7

bad faith, constitutes an exercise in futility, or creates undue delay.
Id. The court’s decision is one of discretion. Id.

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2
3

Prev. Order at 21–22.

4

III.

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YUBA COUNTY DEFENDANTS
The court addresses first the claims against the Yuba County defendants:

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the County, McGrath, Bendorf, Vacek, Barr, and Stober. Santana and Vasquez

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assert only federal claims against these defendants, all under 42 U.S.C. § 1983.

8

The Yuba County defendants argue first that the complaint must be dismissed

9

because they are absolutely immune.

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A. Absolute Prosecutorial Immunity

11

As discussed in the court’s previous order, state prosecuting attorneys are

12

absolutely immune from damages under § 1983 when the case concerns acts

13

within the scope of their duties as prosecutors, Imbler v. Pachtman, 424 U.S. 409,

14

410 (1976), carrying out “the traditional functions of an advocate,” Kalina v.

15

Fletcher, 522 U.S. 118, 131 (1997). Absolute immunity protects even against

16

claims of malicious prosecution, use of perjured testimony, and suppression of

17

material evidence. See Imbler, 424 U.S. at 430. It is meant to avoid “deflection of

18

the prosecutor’s energies from his public duties, and the possibility he would

19

shade his decisions instead of exercising the independence of judgment required

20

by the public trust.” Id. at 423.

21

Absolute prosecutorial immunity applies only to conduct “intimately as-

22

sociated with the judicial phase of the criminal process.” Burns v. Reed, 500 U.S.

23

478, 486 (1991) (quoting Imbler, 424 U.S. at 430). For this reason, when a prose-

24

cutor argues she is absolutely immune under this rule, the court must determine

25

whether she performed a “quasi-judicial function.” Broam v. Bogan, 320 F.3d

26

1023, 1029 (9th Cir. 2003). If so, she is immune, even if she violated the plain-

27

tiff’s constitutional rights. Id. In making this determination, the court looks not to

28

the prosecutor’s motivation, but to the “ultimate acts” themselves. See Ashelman

29

v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986) (en banc).

30

When it comes to what a prosecutor says and does while presenting the

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State’s case at trial, the rule is clear: absolute immunity bars the claim. Imbler,

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424 U.S. at 431. In addition, the Supreme Court has found that some activities

33

are protected by prosecutorial immunity even if they occur before the trial begins.

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Id. at 431 n.33. For example, appearing in court in support of an application for a

35

search warrant, presenting evidence at a hearing, evaluating evidence, interview-

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ing witnesses, and preparing charging documents may all be subject to the pro-

8

1

tection of absolute immunity. Kalina, 522 U.S. at 130; Buckley v. Fitzsimmons, 509

2

U.S. 259, 273 (1993); Burns, 500 U.S. at 492. But other tasks—administrative or

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investigative tasks, for example—are non-prosecutorial and are not protected by

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absolute immunity. Van de Kamp v. Goldstein, 555 U.S. 335, 342–43 (2009).

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Santana and Vasquez argue the defendants’ alleged misdeeds fall in the

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unprotected, non-prosecutorial category. They allege the defendants acted as in-

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vestigators or administrators, gave legal advice to the police, and conducted de-

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famatory press conferences, First Am. Compl. ¶ 51, none of which is a task pro-

9

tected by prosecutorial immunity, see Burns, 500 U.S. at 496; Buckley, 509 U.S. at

10
11

273–74 & n.5, 277.
Three of these categories present no difficult questions. First, Santana

12

and Vasquez allege without detail that the defendants are liable for their actions

13

as administrators. As clarified at hearing, the only administrative act Santana

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and Vasquez identify is McGrath’s direction and supervision of the prosecution.

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This is not the type of administrative action excepted from absolute immunity.

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See Van de Kamp, 555 U.S. at 343–45 (the direction and supervision of prosecuto-

17

rial actions is likewise prosecutorial); Genzler, 410 F.3d at 643–44 (same).

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Second, the legal advice allegedly offered here was not actually legal ad-

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vice. Santana and Vasquez allege an unnamed member of the Yuba County Dis-

20

trict Attorney’s Office pressured Detective Elliott into making false statements

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and unfounded charges in his police report. First Am. Compl. ¶ 42. An attorney

22

can hardly be said to offer legal advice by telling a detective to invent facts. Cf.

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Burns, 500 U.S. at 482, 492–93 (a prosecutor offered legal advice to the police

24

about whether hypnosis was an acceptable investigative technique). Even assum-

25

ing “advice” is the right designation for this instruction, it was certainly not “le-

26

gal advice.” This same reasoning shows it was not an act protected by prosecuto-

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rial immunity—it was nothing the defendants did as part of their role as advo-

28

cates. This allegation may therefore support the plaintiffs’ claims that the defend-

29

ants acted outside their role as advocates, but it cannot support a claim for un-

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constitutional legal advice unprotected by prosecutorial immunity.

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Third, McGrath did not act as a prosecutor when he told a newspaper af-

32

ter the trial that his office stood by its investigation and prosecution. First Am.

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Compl. ¶ 55. “Comments to the media have no functional tie to the judicial pro-

34

cess just because they are made by a prosecutor.” Buckley, 509 U.S. at 277. At

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most, this statement is protected by qualified immunity. Id. at 278. But it is un-

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clear how this statement would support the § 1983 claims against McGrath, aside

9

1

from, perhaps, the substantive due process claim, which is dismissed, as dis-

2

cussed below. Any immunity attached to this statement is moot.

3

This leaves the fourth category, investigative actions akin to those per-

4

formed by a detective or police officer, which makes for a closer call. The distinc-

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tion between prosecutor and investigator can be a murky one, see Genzler, 410

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F.3d at 637–38; Broam, 320 F.3d at 1029, and its application is an “inexact sci-

7

ence,” Lacey v. Maricopa Cty., 693 F.3d 896, 912 (9th Cir. 2012) (en banc). The

8

complaint includes the following relevant allegations:

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(1) Santana and Vasquez allege McGrath and Bendorf participated in

10

the December 2007 lunch meeting where it was first agreed that the

11

District Attorney’s Office would investigate and prosecute bribery

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charges. First Am. Compl. ¶ 48. Soon after the meeting, McGrath

13

secured Vacek’s participation in the plan. Id. At this time, Detective

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Elliott’s investigation was ongoing and no charges had been filed.

15

See id. ¶ 42.

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(2) In May 2008, Yuba County Investigator Mary Barr, with help from

17

the District Attorney’s office, prepared and filed an application for a

18

search warrant authorizing the search of Santana’s, Vasquez’s, and

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Trezza’s law offices. Id. ¶ 51(b). The warrant application falsely de-

20

scribed the proposed civil settlement as a bribe and ignored that

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Acevedo had never wanted to testify, regardless of the settlement. Id.

22

The warrant application also omitted an important detail: Acevedo

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had alleged that Griesa raped her and sodomized her while she was

24

unconscious. Id. This allegation could have allowed her to invoke

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California Code of Civil Procedure section 1219(b), which provides

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that “a court shall not imprison or otherwise confine or place in cus-

27

tody the victim of a sexual assault or domestic violence crime for

28

contempt if the contempt consists of refusing to testify concerning

29

that sexual assault or domestic violence crime.” Id.; see also id. §

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1219(d)(1) (defining sexual assault to include rape under California

31

Penal Code section 261 and sodomy under section 286). This infor-

32

mation undermines a description of the settlement agreement as a

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bribe or an attempt to obstruct justice.

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(3) In July 2008, Bendorf, Vacek, and Stober “interrogated” Acevedo.

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Id. ¶ 51(d). At this time, criminal charges not had been filed against

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Santana and Vasquez, but search warrants had been obtained for

37

their law offices, and the warrants had been executed. See id. ¶¶

10

1

51(b), 52. Santana and Vasquez had not been indicted, see id. ¶ 53,

2

and they had not been arraigned, see id. ¶ 58. The interrogation con-

3

cerned a suspected bribe, and Acevedo was the supposed recipient of

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the bribe. Id. ¶ 51(d). She was therefore theoretically at risk for pros-

5

ecution. Id. But the defendants refused her request that her attorney

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be present. Id. During the interrogation, Acevedo explained that she

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had never intended to testify against Griesa, regardless of any set-

8

tlement agreement. Id. She explained their negotiations had con-

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cerned only the compensation she would receive from Griesa for her

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personal injuries. Id. Bendorf and Vacek ignored and suppressed this

11

testimony, which tended to exonerate Santana and Vasquez. Id.

12

Acevedo also told the defendants that Griesa had sedated her, that

13

she had lost consciousness, and that he then raped her and sodo-

14

mized her. Id. Bendorf and Vacek covered up the alleged rape in an

15

attempt to induce Griesa’s cooperation in their investigation and

16

prosecution of Santana and Vasquez. Id. Griesa was never charged

17

in connection with these allegations. Id.; see also id. ¶ 51(c) (the Dis-

18

trict Attorney’s office at large knew about these events and decided

19

not to prosecute in an effort to obtain Griesa’s cooperation).

20

(4) The complaint alleges generally that McGrath, Bendorf, and Vacek

21

suppressed evidence that showed (a) Elliott had initially discouraged

22

Acevedo from seeking criminal prosecution; (b) Elliott had ex-

23

pressed his approval of the proposed civil settlement to Vasquez; and

24

(c) Vasquez told Bendorf that Griesa would not sign the proposed

25

settlement agreement if criminal charges were filed against him. Id. ¶

26

51(e). This evidence tended to exonerate Santana and Vasquez. Id.

27

The complaint does not allege when or at what stage of the criminal

28

case this suppression occurred.

29

The defendants are absolutely immune if these allegations do not allow a

30

reasonable inference that they were acting as investigators. “A prosecutor neither

31

is, nor should consider himself to be, an advocate before he has probable cause to

32

have anyone arrested.” Buckley, 509 U.S. at 274. But “a determination of proba-

33

ble cause does not guarantee a prosecutor absolute immunity from liability for all

34

actions taken afterwards.” Id. at 274 n.5. Neither does an investigation necessari-

35

ly become a prosecution when a grand jury is empaneled. See id. at 275. And a

36

prosecutor must not be allowed the unfair benefit of hindsight:

37
38

A prosecutor may not shield his investigative work with the aegis of
absolute immunity merely because, after a suspect is eventually ar-

11

4

rested, indicted, and tried, that work may be retrospectively described as “preparation” for a possible trial; every prosecutor might
then shield himself from liability for any constitutional wrong
against innocent citizens by ensuring that they go to trial.

5

Id. In other words, absolute immunity does not protect “every litigation-inducing

6

conduct.” Burns, 500 U.S. at 494.

1
2
3

7

Similarly, the Ninth Circuit has explained that, on the one hand,

8

“[p]rosecutors are absolutely immune from liability for gathering additional evi-

9

dence after probable cause is established or criminal proceedings have begun

10

when they are performing a quasi-judicial function.” Broam, 320 F.3d at 1030.

11

But on the other hand, “even after the initiation of criminal proceedings, a prose-

12

cutor may receive only qualified immunity when acting in a capacity that is ex-

13

clusively investigatory . . . .” Id. at 1031. “Witness interviews may serve either an

14

investigative or an advocacy-related function, as may other methods of gathering

15

or manufacturing evidence prior to trial.” Genzler, 410 F.3d at 638. Thus in

16

Broam v. Bogan, where the plaintiffs’ complaint did not explain whether the pros-

17

ecutors’ alleged unconstitutional conduct occurred before or after they deter-

18

mined probable cause existed to support an arrest, the Ninth Circuit remanded

19

and ordered the district court to allow an amendment. 320 F.3d at 1033-34. And

20

in Genzler, after explaining that timing is “relevant, but not necessarily determina-

21

tive,” the Ninth Circuit found that the prosecutor-defendant was not protected by

22

absolute immunity during witness interviews because investigations were ongo-

23

ing and a criminal complaint had not been filed. 410 F.3d at 639–43.
The defendants also offer a citation to Hampton v. City of Chicago, 349 F.

24
25

Supp. 2d 1075, 1081 (N.D. Ill. 2004). In Hampton, the district court found that

26

the defendant prosecutor was entitled to absolute immunity for claims related to

27

“interviewing witnesses, deciding what information was necessary for trial, pre-

28

paring a felony review card, interviewing plaintiff, reading plaintiff his Miranda

29

rights and approving charges against plaintiff.” Id. at 1081 (citing Miranda v. Ari-

30

zona, 384 U.S. 436 (1966)). These duties were “all part of initiating a judicial pro-

31

ceeding and part of [the defendant’s] job as a felony review prosecutor,” and

32

were “not typically performed by police officers.” Id. The timing of these events

33

is not entirely clear from the district court’s decision, but it is clear that the plain-

34

tiff in Hampton had been arrested before the prosecutor interviewed him. Id. at

35

1077.

36

These authorities demonstrate the Yuba County defendants are entitled

37

to only qualified immunity with respect to the alleged December 2007 lunch

38

meeting, the May 2008 warrant application, and the July 2008 interrogation. At

12

1

those times, Santana and Vasquez had not been arrested, they had not been in-

2

dicted, and they had not been arraigned. The investigation was ongoing, and the

3

defendants were gathering evidence. The court may reasonably infer they were

4

not acting as advocates. The same may be true of the complaint’s general allega-

5

tions that the defendants suppressed exonerating evidence if this suppression oc-

6

curred within the same time period.

7

In summary, the claims against the Yuba County defendants are not

8

barred by absolute prosecutorial immunity because Santana and Vasquez allege

9

adequately that these defendants were acting as investigators, not advocates.

10

B. Qualified Immunity

11

A prosecutor or investigator who is not entitled to absolute prosecutorial

12

immunity may nonetheless enjoy qualified immunity against a § 1983 claim. See,

13

e.g., Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). Likewise Barr and Stober,

14

who are not prosecutors, but state officers, enjoy qualified immunity. See id.

15

Qualified immunity is evaluated using a two-part test. Tolan v. Cotton, ___ U.S.

16

___, 134 S. Ct. 1861, 1865 (2014) (per curiam). The court has discretion to begin

17

with either part, Pearson v. Callahan, 555 U.S. 223, 242 (2009), but typically de-

18

termines first whether the facts, viewed in the light most favorable to the party

19

asserting an injury, show that each defendant violated one or more of the plain-

20

tiffs’ federally protected rights. Tolan, 134 S. Ct. at 1865; Johnson v. Bay Area Rap-

21

id Transit Dist., 724 F.3d 1159, 1168 (9th Cir. 2013). If the answer to this question

22

is “no,” nothing further is necessary—the absence of any violation means no

23

claim can proceed. Johnson, 724 F.3d at 1168.

24

The second part of the inquiry tests whether the federal right asserted was

25

“clearly established” at the time of the alleged violation. Tolan, 134 S. Ct. at

26

1866. This determination hinges on whether the law as it was gave the defend-

27

ants fair warning that their conduct was unconstitutional. Hope v. Pelzer, 536 U.S.

28

730, 741 (2002). “A clearly established right is one that is ‘sufficiently clear that

29

every reasonable official would have understood that what he is doing violates

30

that right.’” Mullenix v. Luna, ___ U.S. ___, 136 S. Ct. 305, 308 (2015) (per curi-

31

am) (quoting Reichle v. Howards, 566 U.S. ___, 132 S. Ct. 2088, 2093 (2012)).

32

“Put simply, qualified immunity protects ‘all but the plainly incompetent or those

33

who knowingly violate the law.’” Id. (quoting Malley v. Briggs, 475 U.S. 335, 341

34

(1986)). The court must take care not to define “clearly established law” too gen-

35

erally. Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). The correct definition ac-

36

counts for the “specific context of the case.” Saucier v. Katz, 533 U.S. 194, 201

37

(2001), overruled in part on other grounds, Pearson, 555 U.S. 223.

13

1

The Yuba County defendants challenge the complaint’s first, second,

2

third, fourth, and fifth claims. The court considers whether the defendants’ quali-

3

fied immunity precludes each of these claims.

4

1. Unconstitutional Search or Seizure (First Claim)

5

“The Fourth Amendment safeguards ‘[t]he right of the people to be se-

6

cure in their persons, houses, papers, and effects, against unreasonable searches

7

and seizures.’” Atwater v. City of Lago Vista, 532 U.S. 318, 326 (2001) (quoting

8

U.S. Const. amend. IV) (alteration in Atwater). This right applies against states

9

and state agencies. Elkins v. United States, 364 U.S. 206, 223–24 (1960). It goes

10

without saying that an unreasonable search or seizure is an element of any § 1983

11

claim for violation of the right to be free from unreasonable searches and sei-

12

zures. See Karam v. City of Burbank, 352 F.3d 1188, 1193 (9th Cir. 2003).

13

Here, Santana and Vasquez do not allege they were detained before their

14

trial, and they do not allege they were released on bail. In fact, judicially noticea-

15

ble state court records suggest they were always at liberty on their own recogni-

16

zance. Prev. Order at 31–32. As summarized in the court’s previous order, feder-

17

al law does not clearly establish whether a person who is charged with a felony

18

and released on her own recognizance is “seized” within the meaning of the

19

Fourth Amendment. See id. at 32–34. This absence of authority contrasts with the

20

clear majority of federal circuit courts, including the Ninth Circuit, which have

21

held that “a pre-arraignment, non-felony summons requiring no more than a lat-

22

er court appearance does not constitute a Fourth Amendment seizure.” Burg v.

23

Gosselin, 591 F.3d 95, 99–101 (2d Cir. 2010) (collecting authority); see also Karam,

24

352 F.3d at 1193–94. In 2010, another judge of this district concluded that “[t]he

25

fact of a felony charge, of itself, is not determinative of a seizure in violation of

26

the Fourth Amendment. It is the fact of the felony charge with other restrictions

27

that is important.” Fenters v. Chevron, No. 05-1630, 2010 WL 5477710, at *23

28

(E.D. Cal. Dec. 30, 2010). And in 2015, the Ninth Circuit expressly declined to

29

address whether a felony charge makes a difference. Yousefian v. City of Glendale,

30

779 F.3d 1010, 1015 n.6 (9th Cir. 2015), cert. denied, 136 S. Ct. 135 (2015); see also

31

McCabe v. Hart, 357 F. App’x 151, 153 (9th Cir. 2009) (unpublished).

32

After considering these authorities, the court concluded in its previous

33

order that whether a seizure occurred depends on the restrictions the person fac-

34

es, not on the charges against her. Prev. Order at 34. Santana and Vasquez allege

35

they were seized when they were booked, fingerprinted, photographed, ar-

36

raigned, ordered to make further court appearances, ordered to surrender their

37

passports, and ordered not to leave the state without the court’s permission. It is

14

1

certainly arguable that restrictions like these could amount to a Fourth Amend-

2

ment seizure. In Evans v. Ball, for example, the Fifth Circuit held that pretrial re-

3

lease conditions amounted to a “seizure” because the person was required to ap-

4

pear in court, obtain permission before leaving the state, report regularly to pre-

5

trial services, sign a personal recognizance bond, and give financial and other

6

identifying information to officers. 168 F.3d 856, 860–61 (5th Cir. 1999), abrogat-

7

ed on other grounds, Castellano v. Fragozo, 352 F.3d 939 (5th Cir. 2003) (en banc).

8

Similarly, in 1997, the Second Circuit held that a person had been “seized” be-

9

cause he was forbidden from leaving the state and was required to appear in

10

court many times. See Murphy v. Lynn, 118 F.3d 938, 946 (2d Cir. 1997). And in

11

1975, the Supreme Court held that “pretrial release may be accompanied by bur-

12

densome conditions that effect a significant restraint of liberty,” referring to a

13

now-recodified section of the U.S. Code that allowed restrictions on travel. Ger-

14

stein v. Pugh, 420 U.S. 103, 114 (1975) (citing 18 U.S.C. § 3416(a)(2), revised and

15

recodified, 18 U.S.C. § 3142(c)(1)(B)(iv)).

16

Santana and Vasquez argue persuasively that the restrictions they faced

17

were meaningfully harsher than the “de minimis” restrictions the Ninth Circuit

18

shrugged off in Karam. Opp’n Yuba Mot. at 9 (citing 352 F.3d at 1193–94). Be-

19

tween the time Santana and Vasquez were charged and the time they were ac-

20

quitted, seven years passed. Serious felony charges loomed over them. Their rep-

21

utations and careers suffered. They were compelled to make court appearances.

22

Nevertheless, as highlighted above, no clearly established law put the defendants

23

on notice that these conditions amounted to a Fourth Amendment seizure. Last

24

year, the Ninth Circuit held that the law was uncertain on this point and declined

25

to address the uncertainty. Yousefian, 779 F.3d at 1015 n.6. The Yuba County

26

defendants are therefore entitled to qualified immunity, and the first claim

27

against them is dismissed.
2. Equal Protection of the Law (Second Claim)

28
29

Qualified immunity first depends on whether a constitutional violation

30

occurred. The defendants argue the court cannot infer that a constitutional viola-

31

tion occurred because Santana and Vasquez do not allege any similarly situated,

32

non-Hispanic person was treated differently than they were. Yuba Mot. at 10–11;

33

Elliott Mot. at 10–11.1 Santana and Vasquez respond by citing Awabdy v. City of

1

In the interest of clarity, the court addresses here arguments presented by
both the Yuba County defendants and Detective Elliott.

15

1

Adelanto, 368 F.3d 1062 (9th Cir. 2004). See Opp’n Yuba Mot. at 10–12. In

2

Awabdy, the Ninth Circuit held that a plaintiff may pursue an equal protection

3

claim under § 1983 by alleging a defendant “purposefully caused the state to in-

4

stitute proceedings against him because of his race or ethnicity,” regardless of

5

whether any similarly situated person was treated differently. 368 F.3d at 1071.

6

a. Selective Prosecution or Express Discrimination?

7

These competing arguments set up two possible interpretations of the

8

complaint. The defendants interpret the complaint to allege selective prosecution,

9

and emphasize that plaintiffs who allege selective prosecution claims must allege

10

similarly situated persons were treated differently. See Yuba Mot. at 10–11; El-

11

liott Mot. at 10–11. Santana and Vasquez disagree and explain that they do not

12

allege selective prosecution, but direct, intentional, and express discrimination.

13

See Opp’n Yuba Mot. at 10–12. Express discrimination claims need not be sup-

14

ported by comparative allegation. See Awabdy, 368 F.3d at 1071.

15

As a preliminary matter, the plaintiffs’ arguments support Santana’s

16

claims, but not Vasquez’s. The court cannot infer the defendants pursued

17

Vasquez because he is Hispanic; rather, he was allegedly charged in an effort to

18

lend legitimacy to Santana’s prosecution. See First. Am. Compl. ¶¶ 50, 63; but cf.

19

id. ¶¶ 3, 16, 45. If this was in fact the defendants’ motivation, Vasquez would

20

have suffered the same fate if he belonged to any other racial or ethnic group,

21

majority or minority. Vasquez’s equal protection claim is dismissed. Santana, by

22

contrast, alleges straightforwardly that the defendants pursued charges against

23

him because he was Hispanic. This leaves the question of whether the complaint

24

is best understood as alleging selective prosecution or intentional, express dis-

25

crimination. A bit more detail about Awabdy, similar cases, and selective prosecu-

26

tion claims is necessary to explain the court’s reasoning.

27

A selective prosecution claim consists of the allegation that a prosecutor

28

or another officer enforced facially neutral laws with discriminatory effect and

29

purpose, regardless of probable cause. See United States v. Armstrong, 517 U.S.

30

456, 465 (1996). A plaintiff must allege other similarly situated persons were not

31

prosecuted. Id. This pleading requirement is born of respect for federalism or the

32

separation of powers and the differing competencies of prosecutors and judges.

33

See id. at 464–65. Prosecutors have broad discretion to enforce criminal laws and

34

look to a variety of circumstances when deciding when and how to charge a

35

crime. Id. at 465. Undue judicial interference may cause delay and uncertainty or

36

even reveal the government’s strategy. Id. The Supreme Court therefore requires

37

plaintiffs to allege and prove disparate treatment “to dispel the presumption that

16

1

a prosecutor has not violated equal protection” by providing “clear evidence to

2

the contrary.” Id. (citation omitted).

3

In Awabdy, the Ninth Circuit saw no need to require the plaintiff to allege

4

similarly situated persons were treated differently. The plaintiff there targeted

5

neither the prosecutors nor the prosecution itself, but the local administrators

6

who had allegedly trumped up false charges against him. See 368 F.3d at 1071.

7

“Accordingly,” the Circuit held, given “the particular defendants involved,” the

8

plaintiff could prevail despite the absence of any similarly situated person. Id.

9

The Awabdy panel explained its reasoning by citing Pyke v. Cuomo, 258

10

F.3d 107 (2d Cir. 2001), and Farm Labor Organizing Committee v. Ohio State High-

11

way Patrol, 308 F.3d 523 (6th Cir. 2002). In Pyke, the plaintiffs alleged New York

12

state officials had purposefully withheld police protection from an Indian reserva-

13

tion. 258 F.3d at 108. The plaintiffs did not allege any similarly situated, non-

14

Native-Americans were treated differently, but the Second Circuit found this

15

shortcoming immaterial. For one, like the Awabdy court, the Pyke court distin-

16

guished the claim before it from a selective prosecution claim. Id. at 108–09. Sec-

17

ond, the court explained, if the Pyke plaintiffs were required to prove a similarly

18

situated non-Indian group was treated differently, they could never succeed.

19

There is no group situated similarly to a sovereign Indian Tribe, exercising signif-

20

icant self-governance within its community in New York State. Id. at 109.

21

In Farm Labor Organizing Committee, the Sixth Circuit reviewed a claim

22

that the Ohio State Highway Patrol had unconstitutionally singled the plaintiffs

23

out during a traffic stop because they were Hispanic. 308 F.3d at 533. The court

24

required the plaintiffs to show the stop had both a discriminatory effect and mo-

25

tivation. Id. at 533–34. To prove discriminatory intent, the plaintiff would be re-

26

quired to identify a similarly situated person who was not stopped. Id. at 534. In

27

the margin the court then explained what the case was not: an alleged instance of

28

systemic, intentional racial discrimination. See id. at 533 n.4 (“We note that the

29

record contains no indication that the [Highway Patrol] employs explicit racial

30

criteria or admits to racially-motivated decision making.”). It cited authority ex-

31

plaining that “[i]t is not necessary to plead the existence of a similarly situated

32

non-minority group when challenging a law or policy that contains an express,

33

racial classification.” Id. (quoting Brown v. City of Oneonta, 221 F.3d 329, 337 (2d

34

Cir. 2000)). The Pyke court relied on the same authority. See 258 F.3d at 109–10

35

(citing Brown, 221 F.3d at 337).

36
37

These decisions are at first glance difficult to reconcile with a later Ninth
Circuit opinion, Rosenbaum v. City and County of San Francisco, 484 F.3d 1142 (9th

17

1

Cir. 2007). In Rosenbaum, a group of Christian evangelists had used amplified

2

sound to proselytize their message in San Francisco streets and parks. Id. at

3

1147–50. They challenged the city’s enforcement of a noise ordinance. See id.

4

They alleged the city had denied their applications for permits and had shut

5

down their outreach programs because it disagreed with their message. Id. at

6

1152. Relying on the Supreme Court’s opinions in Wayte v. United States, 470

7

U.S. 598 (1985), and United States v. Armstrong, supra, 517 U.S. 456, the Ninth

8

Circuit began its discussion this way:

19

A government entity has discretion in prosecuting its criminal laws,
but enforcement is subject to constitutional constraints. To prevail
on its claim under the equal protection clause of the Fourteenth
Amendment, a plaintiff must demonstrate that enforcement had a
discriminatory effect and the police were motivated by a discriminatory purpose. To establish a discriminatory effect, the claimant must
show that similarly situated individuals were not prosecuted. To
show discriminatory purpose, a plaintiff must establish that the decision-maker selected or reaffirmed a particular course of action at
least in part because of, not merely in spite of, its adverse effects upon an identifiable group.

20

Id. at 1152–53 (citations, quotation marks, footnotes, and alterations omitted). A

21

few years later, in Lacey v. Maricopa County, the en banc Ninth Circuit quoted

22

these sentences to explain the applicable legal standard. See 693 F.3d at 920. In

23

neither Rosenbaum nor Lacey did the Circuit acknowledge or distinguish its deci-

24

sion in Awabdy.

9
10
11
12
13
14
15
16
17
18

25

At a general level, the standard articulated in Rosenbaum conflicts with

26

the rule of Awabdy. Despite factual similarities between the two cases, the Rosen-

27

baum court required an allegation of similarly situated persons, but the Awabdy

28

court did not: In neither Awabdy nor Rosenbaum were the plaintiffs prosecuted, in

29

neither case did the plaintiffs sue a prosecutor, and in both cases the plaintiffs

30

alleged the defendants had purposefully caused the state to take a discriminatory

31

enforcement action. Compare Awabdy, 368 F.3d at 1071, with Rosenbaum, 484

32

F.3d at 1152–53.

33
34
35
36
37
38
39

But Awabdy does not conflict with Rosenbaum and Lacey when one
acknowledges the Awabdy panel’s meticulous description of the claims before it:
[The plaintiff, Mr. Awabdy,] is not claiming that the defendants
prosecuted him under a facially neutral law in a discriminatory
manner. Indeed, the defendants did not prosecute him at all. They
simply provided information, false or fraudulent as it may have
been, to those charged with that responsibility.

18

1

368 F.3d at 1071 (citations omitted). In other words, Mr. Awabdy’s focus, like

2

that of Santana and Vasquez, was with neither a selection nor a prosecution, but

3

with the lies, rooted in racial animus, that eventually launched the prosecution.

4

The Awabdy court continued by explaining the plaintiff was not asking

5

the court “to exercise judicial power over the special province of the Executive,

6

because he [was] not challenging the prosecutor’s decision to initiate criminal

7

proceedings.” Id. (citation omitted). In both Rosenbaum and Lacey, by contrast,

8

the Circuit called on the consideration afforded to prosecutions and prosecutors

9

by the Supreme Court. See Wayte, 470 U.S. at 607–09; Armstrong, 517 U.S. at

10

465. The Awabdy court acknowledged this rationale and explained why it did not

11

fit the case before it, as quoted above. 368 F.3d at 1071. The Second Circuit rea-

12

soned similarly in Pyke. 258 F.3d at 108–09. The same difference separates the

13

complaint here from a selective prosecution complaint. Santana does not allege

14

the defendants exercised their prosecutorial discretion unconstitutionally. He

15

claims the defendants stepped outside their role as the State’s attorneys and in-

16

vented a case.

17

The defendants’ position also essentially invites the conclusion that the

18

Ninth Circuit overruled Awabdy in Rosenbaum and Lacey. The court declines to

19

find binding authority has been overruled by silent implication. Cf. Miller v.

20

Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (although a second decision need not

21

rest on the very same foundation as a previous decision before the second may

22

overrule the first, the second must be “clearly irreconcilable” or “directly at

23

odds” with the first).

24

In summary, the complaint’s allegations allow the court to infer the Yuba

25

County defendants violated Santana’s constitutional right to equal protection of

26

the laws, but not Vasquez’s. The defendants can therefore enjoy qualified im-

27

munity only if they demonstrate their alleged actions fell within the bounds of

28

clearly established law.

29

b. Clearly Established Law

30

If it appears here that there is any absence of clearly established law, the

31

uncertainty is attributable to the legal tangles wrought by the parties’ briefing. A

32

reasonable officer in the defendants’ situation would not have made the decisions

33

the Yuba County defendants are alleged to have made. Regardless of any uncer-

34

tainty about what a plaintiff must plead to reach discovery in a federal lawsuit,

35

no reasonable officer could conclude that the Constitution permits her to manip-

36

ulate evidence to support an unsupportable felony charge, particularly when her

37

goal is to prevent the appointment of a judge whose race or ethnicity the officer

19

1

finds objectionable. Explicitly discriminatory laws and policies “fall within the

2

core” of the Equal Protection Clause’s prohibition. Miller v. Johnson, 515 U.S.

3

900, 905 (1995) (quoting Shaw v. Reno, 509 U.S. 630, 642 (1993)); accord, e.g.,

4

Pyke, 258 F.3d at 108–09 (“A plaintiff alleging an equal protection claim under a

5

theory of discriminatory application of the law, or under a theory of discrimina-

6

tory motivation underlying a facially neutral policy or statute, generally need not

7

plead or show the disparate treatment of other similarly situated individuals.”).
c.

8

Timeliness of Filing

9

The defendants raise a further argument for dismissal, and though it is

10

not a feature of qualified immunity, it is best addressed here: Santana’s second

11

claim must be dismissed because it is untimely. Santana’s constitutional claims

12

are brought under 42 U.S.C. § 1983. That section does not specify its limitations

13

period. Wallace v. Kato, 549 U.S. 384, 387 (2007). The court therefore applies the

14

limitations period imposed by California law in personal injury claims. See id. In

15

California, a two-year limitations period applies to personal injury claims that

16

were less than one year old as of January 1, 2003. See Canatella v. Van De Kamp,

17

486 F.3d 1128, 1132 (9th Cir. 2007).

18

The limitations period begins to run on the date a claim accrues. Lukovsky

19

v. City & Cty. of S.F., 535 F.3d 1044, 1048 (9th Cir. 2008). Federal law determines

20

when a claim accrues. TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999).

21

“[U]nder federal law, a claim accrues ‘when the plaintiff knows or has reason to

22

know of the injury which is the basis of the action.’” Lukovsky, 535 F.3d at 1048

23

(quoting Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 926 (9th Cir. 2004)). Here,

24

Santana was injured when the defendants “purposefully caused the state to insti-

25

tute proceedings against him because of his race or ethnicity.” Awabdy, 368 F.3d

26

at 1071; accord Yasin v. Coulter, 449 F. App’x 687, 690 (9th Cir. 2011) (un-

27

published) (holding that a claim under Awabdy accrues at the inception of the

28

prosecution and distinguishing Heck v. Humphrey, 512 U.S. 477, 484 (1994)). This

29

occurred at the latest in 2008, when he was arraigned. See Req. J. Not. Ex. B, at

30

1, ECF No. 11-2.2 Santana’s and Vasquez’s original complaint was filed in this

2

The court takes judicial notice of this record. See Fed. R. Evid. 201 (governing judicial notice); W. Radio, 678 F.3d at 976 (a court may consider proper subject
of judicial notice on a motion to dismiss); Reyn’s Pasta Bella, LLC v. Visa USA, Inc.,
442 F.3d 741, 746 n.6 (9th Cir. 2006) (a court may take judicial notice of public filings in other, related cases).

20

1

court in April 2015. ECF No. 1. This claim is therefore untimely and is dis-

2

missed.
3. Malicious Prosecution (Fifth Claim)

3
4

A prosecution intended to deprive a person of his right to be free from

5

unreasonable searches and seizures may serve as the basis for a claim under

6

§ 1983. See, e.g., Awabdy, 368 F.3d at 1069. A plaintiff must allege the defendants

7

prosecuted him with malice, without probable cause, and for the purpose of de-

8

priving him of his Fourth Amendment right, see id. at 1066, and he must allege a

9

Fourth Amendment seizure occurred, Yousefian, 779 F.3d at 1015. Here, because

10

no clearly established law showed the defendants seized Santana and Vasquez, as

11

discussed above, their malicious prosecution claim cannot proceed on the basis

12

of an alleged Fourth Amendment violation.

13

A claim for malicious prosecution can also rest on an alleged violation of

14

the plaintiff’s Fourteenth Amendment rights to equal protection, “or the viola-

15

tion of another such ‘explicit textual source of constitutional protection.’” Id. at

16

1015 (quoting Albright v. Oliver, 510 U.S. 266, 271–75 (1994)). Here, the com-

17

plaint states a cognizable claim that Santana, but not Vasquez,3 was deprived of

18

his right to equal protection in violation of clearly established law, as discussed

19

above. In this circuit, a plaintiff may pursue independent claims of direct consti-

20

tutional violations and malicious prosecution to deprive him of the same consti-

21

tutional rights. Awabdy, 368 F.3d at 1072.

22

Unlike Santana’s direct claim for violation of his right to equal protec-

23

tion, his malicious prosecution claim is not time-barred. A plaintiff can state no

24

claim for malicious prosecution until the alleged maliciously prosecuted case

25

terminates in his favor. See Heck, 512 U.S. at 484; RK Ventures, Inc. v. City of Seat-

26

tle, 307 F.3d 1045, 1060 n.11 (9th Cir. 2002). The jury reached a verdict in San-

27

tana’s and Vasquez’s criminal case in 2014. The same two-year limitations peri-

28

od for personal injury claims applies again here. See Lopes v. Fremont Freewheelers,

29

No. 07-6213, 2008 WL 3304944, at *3 (N.D. Cal. Aug. 7, 2008), aff’d, 362 F.

3

However, the complaint could be read to imply Vasquez was targeted specifically because he was Hispanic. Cf. First Am. Compl. ¶¶ 3, 16, 45. He is granted
leave to amend to clarify whether he indeed advances this theory, as specified in the
conclusion of this order. He is not granted leave to allege a direct claim of discrimination, however, as that claim would prove untimely, as discussed above.

21

1

App’x 874 (9th Cir. 2010). Santana’s April 2015 complaint in this respect is

2

therefore timely, as are his amended claims. See Fed. R. Civ. P. 15(c)(1)(B).

3

In addition, however, as noted above, to assert a claim for malicious

4

prosecution, Santana must allege the defendants lacked probable cause. Yousefi-

5

an, 779 F.3d at 1014. He alleges generally that the defendants lacked probable

6

cause, First Am. Compl. ¶ 78, but the defendants contend it is clear on the face of

7

the complaint that their actions were supported by probable cause. See Yuba

8

Mot. at 14. Specifically, they cite the alleged terms of the proposed settlement

9

agreement between Griesa and Acevedo:

10
11
12
13
14
15
16
17

In consideration of the sum of one hundred thousand dollars
($100,000.00), Socorro Acevedo will request that criminal charges
not be filed against Joe Griesa, and will exercise any privilege she
may have pursuant to law, not to testify in any proceedings, and
shall not file any civil action, arising out of the underlying facts,
against Joe Griesa. . . .

First Am. Compl. ¶ 40.
Santana and Vasquez were eventually indicted and prosecuted for brib-

18

ery, obstruction of justice, and dissuading a witness under the following Penal

19

Code sections:4

20
21
22
23
24
25
26
27
28
29
30
31

[E]very person who attempts to prevent or dissuade another person
who has been the victim of a crime . . . from doing any of the following is guilty of a public offense . . . : . . . [c]ausing a complaint, indictment, information, probation or parole violation to be sought
and prosecuted, and assisting in the prosecution thereof.

Cal. Penal Code § 136.1(b)(2).
Every person doing any of the acts described in subdivision (a) or (b)
knowingly and maliciously under any one or more of the following
circumstances, is guilty of a felony . . . : . . . [w]here the act is committed by any person for pecuniary gain or for any other consideration acting upon the request of any other person.

Id. § 136.1(c)(4).

4

The court grants the Yuba County defendants’ unopposed request for judicial notice of the grand jury indictment and criminal complaint. See Req. J. Not., Ex.
B, ECF No. 44-2 (indictment); id. Ex. E (criminal complaint). These documents are
public records whose existence is subject to no reasonable dispute. See supra note 2.

22

1
2
3
4
5

If two or more persons conspire . . . to pervert or obstruct justice . . .
they shall be punishable in the same manner and to the same extent
as is provided for the punishment of that felony.

Id. § 182(a)(5).
Probable cause is an objective standard that considers what reasonable

6

conclusions a defendant may draw from the facts she knew at the time. Devenpeck

7

v. Alford, 543 U.S. 146, 152 (2004). A defendant has probable cause to believe an

8

offense has occurred when her knowledge could lead a prudent person to that

9

conclusion. Yousifian, 779 F.3d at 1014. Her state of mind or intentions are irrel-

10
11

evant. Devenpeck, 543 U.S. at 154.
Although the terms of the proposed settlement agreement suggest Aceve-

12

do had agreed to avoid participating in a criminal process in exchange for

13

$100,000, Santana and Vasquez allege that everyone knew she intended to keep

14

the matter private regardless of the money and accepted the money only as com-

15

pensation for personal injury. Moreover, Santana and Vasquez allege the defend-

16

ants withheld and ignored exonerating evidence, which is a relevant considera-

17

tion in matters of probable cause. See, e.g., Awabdy, 368 F.3d at 1067 (collecting

18

authority to show that a civil rights plaintiff may rebut a presumption of probable

19

cause “by showing that the criminal prosecution was induced by fraud, corrup-

20

tion, perjury, fabricated evidence, or other wrongful conduct undertaken in bad

21

faith”). The more specific allegations of the amended complaint also suffice to

22

overcome the vagueness that proved fatal to the original complaint. See Prev. Or-

23

der at 56–57; cf. First Am. Compl. ¶¶ 48–52. The court declines to declare at this

24

early stage that the “totality of the circumstances” gave the defendants probable

25

cause. See Illinois v. Gates, 462 U.S. 213, 230–31 (1983).

26

The defendants identify no law that would support an assertion of quali-

27

fied immunity, and the court finds that the authorities cited above would not

28

have allowed a reasonable officer in the defendants’ position to act as they did.

29

Vasquez’s malicious prosecution claim is dismissed in total. Santana’s

30

malicious prosecution claim is dismissed only to the extent it is based on an un-

31

constitutional seizure.

32
33

4. Due Process Clause—“Right to Fair Notice” (Third Claim)
The Due Process Clause prohibits the government from depriving a per-

34

son of life, liberty, and property rights without first undertaking an adequate pro-

35

cess. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985). A person can

36

therefore succeed in a § 1983 lawsuit against a government actor by showing

23

1

(1) that she had a liberty or property interest protected by the Constitution,

2

(2) that the defendant deprived her of that interest, and (3) that the process the

3

defendant undertook, if any, was lacking. See, e.g., Shanks v. Dressel, 540 F.3d

4

1082, 1090 (9th Cir. 2008). What “process” is “due” varies from one situation to

5

the next. Zinermon v. Burch, 494 U.S. 113, 127 (1990). But, generally speaking,

6

“[t]he fundamental requirement of due process is the opportunity to be heard at a

7

meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319,

8

333 (1976) (citation and quotation marks omitted).

9

Here, Santana and Vasquez allege the defendants prosecuted them even

10

though the settlement agreement they negotiated fit the established practice of

11

police, prosecutors, and private attorneys. First Am. Compl. ¶ 68. They cite no

12

clearly established law to support this theory of the defendants’ liability on this

13

claim, and the court is aware of none. This claim is dismissed.
5. Due Process Clause—Injury to Professional Reputation

14

(Fourth Claim)

15
16

The Due Process Clause also prohibits government officials from arbitrar-

17

ily depriving a person of certain constitutionally protected fundamental property

18

or liberty interests. See, e.g., Action Apartment Ass’n, Inc. v. Santa Monica Rent Con-

19

trol Bd., 509 F.3d 1020, 1026 (9th Cir. 2007). These interests include the right to

20

pursue a given profession. Greene v. McElroy, 360 U.S. 474, 492 (1959); Meyer v.

21

Nebraska, 262 U.S. 390, 399 (1923). But “only ‘egregious official conduct can be

22

said to be arbitrary in the constitutional sense’: it must amount to an ‘abuse of

23

power’ lacking any ‘reasonable justification in the service of a legitimate gov-

24

ernmental objective.’” Shanks, 540 F.3d at 1088 (quoting Cty. of Sacramento v.

25

Lewis, 523 U.S. 833, 846 (1998)). In other words, only conduct that “shocks the

26

conscience” violates the Due Process Clause. See, e.g., United States v. Salerno, 481

27

U.S. 739, 746 (1987).

28
29

Here, Santana and Vasquez allege the prosecution prevented both of
them from practicing law. First Am. Compl. ¶ 73.5. The Supreme Court has de-

5

The complaint could also be read to allege Santana was deprived of a judicial appointment, but he agreed at hearing that if he was deprived of this appointment, he would have been deprived of no constitutionally protected right. He is correct. Prospective employment is not a right to which an applicant may assert a “legitimate claim of entitlement.” See, e.g., Kerr v. Marshall Univ. Bd. of Governors, 824 F.3d
62, 79 (4th Cir. May 24, 2016); Jones v. City Sch. Dist. of New Rochelle, 695 F. Supp. 2d

24

1

fined the general boundaries of the right to pursue a profession. Engquist v. Or.

2

Dep’t of Agric., 478 F.3d 985, 997 (9th Cir. 2007), aff’d, 553 U.S. 591 (2008). A

3

state may not arbitrarily and totally prohibit a person from practicing his chosen

4

profession. See, e.g., Conn v. Gabbert, 526 U.S. 286, 292 (1999) (citing Schware v.

5

Bd. of Bar Exam’rs of N.M., 353 U.S. 232, 238–39 (1957)). The Court has also sug-

6

gested the state must not impose a stigma or some other disability on a person

7

that completely forecloses her future employment. See Bd. of Regents of State Colls.

8

v. Roth, 408 U.S. 564, 573 (1972). Similarly, the Ninth Circuit has held that a

9

person may pursue a constitutional claim in “extreme cases, such as a ‘govern-

10

ment blacklist, which when circulated or otherwise publicized to prospective em-

11

ployers effectively excludes the blacklisted individual from his occupation, much

12

as if the government had yanked the license of an individual in an occupation

13

that requires licensure.’” Engquist, 478 F.3d at 997–98 (quoting Olivieri v. Rodri-

14

guez, 122 F.3d 406, 408 (7th Cir. 1997)).

15

Santana and Vasquez do not allege the criminal prosecution completely

16

prevented them from practicing law or imposed a functional “government black-

17

list” on them during the time the prosecution was pending. The court also takes

18

judicial notice that Santana has appeared a number of times before the under-

19

signed to represent defendants in criminal cases; Santana conceded as much at

20

hearing. Because clearly established law forbids only total eclipses of a person’s

21

right to practice his profession, the plaintiffs’ claims cannot survive on this allega-

22

tion. Nevertheless, as also discussed at hearing, an alternative due-process formu-

23

lation of this claim may be possible. See Crowe v. Cty. of San Diego, 608 F.3d 406,

24

444 (9th Cir. 2010); Herb Hallman Chevrolet, Inc. v. Nash-Holmes, 169 F.3d 636, 645

25

(9th Cir. 1999); Buckey v. Cty. of L.A., 968 F.2d 791, 795 (9th Cir. 1992). Because

26

complaints must be dismissed with leave to amend “when a viable case may be

27

presented,” Lipton, 284 F.3d at 1039, this claim is dismissed with leave to amend,

28

as specified in the conclusion of this order.

29

C. Summary

30

The Yuba County defendants are not entitled to absolute prosecutorial

31

immunity with respect to Santana’s and Vasquez’s claims that they acted outside

32

their role as advocates, as described above. Nevertheless, the defendants’ quali-

33

fied immunity and the applicable limitations period bar several claims. As for the

136, 146 (S.D.N.Y. 2010); Parsons v. Pond, 126 F. Supp. 2d 205, 217 (D. Conn.
2000), aff’d, 25 F. App’x 77 (2d Cir. 2002).

25

1

Yuba County defendants, (1) the search and seizure claim is dismissed, (2) the

2

equal protection claim is dismissed, (3) the due process claims (procedural and

3

substantive) are dismissed, (4) Vasquez’s malicious prosecution claim is dis-

4

missed with leave to amend, see supra note 3, and (5) Santana’s malicious prose-

5

cution claim is dismissed to the extent that claim rests on his allegations of un-

6

constitutional searches and seizures. Santana and Vasquez are granted leave to

7

amend to allege claims based on a due-process injury to their professional reputa-

8

tions.

9

IV.

10
11

RANDALL ELLIOTT
Many of the claims against Detective Elliott must be dismissed for the

same reasons described above, see supra note 1:


12

The search and seizure claim is dismissed because no clearly es-

13

tablished law allows the conclusion that a person is seized if he is

14

released on his own recognizance;

15



The equal protection claim is dismissed because it is untimely;

16



The “fair notice” claim is dismissed because it is supported by no
clearly established law;6

17



18

The substantive due process claim is dismissed because no allega-

19

tions show Santana and Vasquez were unable to practice law;

20

and


21

The malicious prosecution claim is dismissed to the extent it is

22

based on an unreasonable seizure, and it is dismissed to the ex-

23

tent it is based on racial discrimination against Vasquez, because

24

the complaint does not allow the court reasonably to infer those

25

underlying constitutional violations occurred.

26

This leaves Santana’s claim of malicious prosecution, a potential amend-

27

ed malicious prosecution claim by Vasquez, and the possibility of an amended,

28

reputation-related claim.

29

Only one factual allegation ties Elliott to the Yuba County defendants’

30

alleged scheme: that he was pressured to submit an inaccurate investigation re-

31

port, which recommended charges against Santana and Vasquez. First Am.

32

Compl. ¶ 42. The remaining allegations are only general statements and conclu-

6

The plaintiffs do not oppose Elliott’s motion with respect to this claim.
Opp’n Elliott Mot. at 1.

26

1

sions. See, e.g., id. ¶ 48 (“Soon after [the December 2007 lunch meeting],

2

McGrath and the other meeting participants enlisted the remaining Defendants

3

to join in the Derailment Plan.”); id. ¶ 85 (“Defendants entered into a conspiracy

4

for the purpose of derailing Santana’s candidacy for judicial appointment . . . .”).

5

As alleged here, as in the original complaint, Elliott’s investigation was largely

6

complete long before any plan coalesced in December 2007. The court cannot

7

draw a reasonable inference of Elliott’s liability for the investigation and prosecu-

8

tion. No allegations show he was motivated by race.

9

Elliott also moves to dismiss the sixth claim, conspiracy under §§ 1983

10

and 1985. A conspiracy claim under § 1983 has two elements: (1) an express or

11

implied agreement to deprive the plaintiffs of constitutional rights and (2) a re-

12

sulting deprivation of rights. Avalos v. Baca, 596 F.3d 583, 592 (9th Cir. 2010).

13

The agreement need not be overt, but the complaint must include some factual

14

basis to support an inference that the agreement propelled the defendant’s ac-

15

tions. Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283, 1301 (9th Cir. 1999).

16

“[T]he plaintiff must state specific facts to support the existence of the claimed

17

conspiracy.” Burns v. Cty. of King, 883 F.2d 819, 821 (9th Cir. 1989). Vague

18

claims that a defendant was involved in a conspiracy do not suffice. See Hansen v.

19

Black, 885 F.2d 642, 646 (9th Cir. 1989); see also Lacey, 693 F.3d at 937 (noting

20

conclusory conspiracy allegations do not provide notice to a defendant).

21

A claim under § 1985(3) has four elements:

22

“(1) [A] conspiracy; (2) for the purpose of depriving, either directly
or indirectly, any person or class of persons of the equal protection of
the laws, or of equal privileges and immunities under the laws; and
(3) an act in furtherance of this conspiracy; (4) whereby a person is
either injured in his person or property or deprived of any right or
privilege of a citizen of the United States.”

23
24
25
26
27
28

Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992) (quoting United

29

Bhd. of Carpenters and Joiners of Am. v. Scott, 463 U.S. 825, 828–29 (1983)). The

30

second element requires more specifically that the plaintiff demonstrate the de-

31

fendants were motivated by “some racial, or perhaps otherwise class-based, in-

32

vidiously discriminatory animus.” Id. (quoting Griffith v. Breckenridge, 403 U.S.

33

88, 102 (1971)).

34

Here, the complaint includes no factual allegations that allow the court to

35

infer Elliott was part of a conspiracy to violate Santana’s constitutional rights.

36

The allegations do not tie him to the “derailment plan” by any more than general

37

statements. It is no more than possible that he was motivated by racial animus. A

38

complaint cannot survive on possibilities and general statements. Iqbal, 556 U.S.

27

1

at 681 (conclusory allegations of racial animus and conspiracy cannot survive a

2

motion to dismiss under Rule 12(b)(6)). The claims against Elliott are dismissed.

3

V. JUDGE JULIA SCROGIN
The court dismissed Santana’s and Vasquez’s original claims against

4
5

Judge Scrogin because their complaint did not allege she acted “in the complete

6

absence of all jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11–12 (1991) (per curi-

7

am). They were allowed to amend their complaint to allege Judge Scrogin is lia-

8

ble for non-judicial actions. Prev. Order at 50; see also Mireles, 502 U.S. at 11

9

(“[A] judge is not immune from liability for nonjudicial actions, i.e., actions not

10

taken in the judge’s judicial capacity.”). The amended complaint includes no al-

11

legations showing Judge Scrogin’s actions were non-judicial. She allegedly con-

12

vened a grand jury, excused jurors for cause, and compelled Acevedo to testify

13

under threat of contempt. First Am. Compl. ¶¶ 53–54. These were judicial ac-

14

tions.

15

The case against her cannot proceed alone on the allegation that she at-

16

tended the December 2007 lunch meeting. See also Ashelman, 793 F.2d at 1078

17

(“[A] conspiracy between judge and prosecutor to predetermine the outcome of a

18

judicial proceeding, while clearly improper, nevertheless does not pierce the im-

19

munity extended to judges and prosecutors.”). Aside from the judicial actions

20

described above, no factual allegations tie her to the alleged “derailment plan.”

21

The claims against Judge Scrogin are dismissed.

22

VI. TIMOTHY EVANS

23

A. Federal Claims under §§ 1983 and 1985

24

Any claim under § 1983 must concern the defendants’ actions under col-

25

or of state law. Lugar v. Edmondson Oil Co., 457 U.S. 922, 946 (1982). Evans is a

26

private attorney. “[P]rivate parties are not generally acting under color of state

27

law,” Price v. State of Hawaii, 939 F.2d 702, 707–08 (9th Cir. 1991), “no matter

28

how discriminatory or wrongful” their actions may be, Am. Mfrs. Mut. Ins. Co. v.

29

Sullivan, 526 U.S. 40, 50 (1999) (citation and quotation marks omitted). But

30

“[u]nder familiar principals, even a private entity can, in certain circumstances,

31

be subject to liability under section 1983.” Villegas v. Gilroy Garlic Festival Ass’n,

32

541 F.3d 950, 954 (9th Cir. 2008) (en banc). The basic question a court must an-

33

swer is whether the private person’s conduct “may be fairly characterized as

34

‘state action’” or is “fairly attributable to the State.” Lugar, 457 U.S. at 924, 937.

35
36

“Something more” is necessary before a private individual may be said to
have acted as the government. Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d

28

1

826, 835 (9th Cir. 1999). This “something more” is not susceptible to any par-

2

ticular litmus test, and the Supreme Court has suggested a “host of facts” that

3

may influence a court’s decision:

4
5
6
7
8
9
10
11
12

[A] challenged activity may be state action when it results from the
State’s exercise of coercive power, when the State provides significant encouragement, either overt or covert, or when a private actor
operates as a willful participant in joint activity with the State or its
agents. We have treated a nominally private entity as a state actor
when it is controlled by an agency of the State, when it has been delegated a public function by the State, when it is entwined with governmental policies, or when government is entwined in its management or control.

13

Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 296 (2001)

14

(citations, quotation marks, and alterations omitted).

15

Here, Santana and Vasquez argue Evans is liable under § 1983 because

16

the Yuba County defendants secured his participation in their plan to prevent

17

Santana’s appointment on account of his race. “A plaintiff may demonstrate

18

joint action by proving the existence of a conspiracy or by showing that the pri-

19

vate party was ‘a willful participant in joint action with the State or its agents.’”

20

Franklin v. Fox, 312 F.3d 423, 445 (9th Cir. 2002) (quoting Collins v. Womancare,

21

878 F.2d 1145, 1154 (9th Cir. 1989)). “To be liable as co-conspirators, each par-

22

ticipant in a conspiracy need not know the exact details of the plan, but each par-

23

ticipant must at least share the common objective of the conspiracy.” Id. A “sub-

24

stantial degree of cooperation” is required between the state actors and the pri-

25

vate person. Id.

26

Evans was allegedly part of the December 2007 lunch meeting, and he

27

preferred Green to Santana because she was not Hispanic. He helped forward

28

privileged attorney-client material to the Yuba County defendants, and helped

29

secure Griesa’s cooperation in the prosecution of Santana and Vasquez. The

30

court concluded in its previous order that Santana and Vasquez had plausibly

31

alleged Evans was part of a civil conspiracy against them under California law.

32

See Prev. Order at 54–56. These allegations allow the court to infer Evans was a

33

“willful participant in joint activity with the State.” Brentwood, 531 U.S. at 296;

34

accord Adickes v. S. H. Kress & Co., 398 U.S. 144, 151–52 (1970) (allowing a § 1983

35

claim to proceed on the theory that a private person and a policeman reached an

36

agreement to discriminate on the basis of race).

37

These allegations also suffice to state the first three elements of a claim

38

against Evans under § 1985(3): “(1) a conspiracy; (2) for the purpose of depriv-

29

1

ing, either directly or indirectly, any person or class of persons of the equal pro-

2

tection of the laws, or of equal privileges and immunities under the laws; and

3

(3) an act in furtherance of this conspiracy.” Sever, 978 F.2d at 1536. The ques-

4

tion remains, then, for purposes of both § 1983 and § 1985, whether Evans’s ac-

5

tions deprived Santana or Vasquez of a constitutional right. See id. Evans is no

6

more liable than the Yuba County defendants. The court also concludes Evans is

7

protected by qualified immunity to the same extent as the other defendants. See

8

Filarsky v. Delia, ___ U.S. ___, 132 S. Ct. 1657, 1664–65 (2012). The discussion of

9

the claims against those defendants therefore applies to Evans just as well: (1) the

10

search and seizure claim is dismissed, (2) the equal protection claim is dismissed,

11

(3) the due process claims are dismissed, (4) Vasquez’s malicious prosecution

12

claim is dismissed with leave to amend; and (5) Santana’s malicious prosecution

13

claim is dismissed to the extent it is based on an allegedly unconstitutional sei-

14

zure. Santana and Vasquez may also amend their complaint to allege a reputa-

15

tion-related claim against Evans under § 1983.

16

Finally, the court disagrees that Evans may avoid liability because he did

17

nothing to further the prosecution after May 2008, when Santana disclosed the

18

criminal charges to the state judicial appointment commission. The allegations

19

here allow the court reasonably to infer Evans’s participation in a conspiracy of

20

malicious prosecution that began in December 2007, and the prosecution did not

21

terminate until 2014.

22

B. State Law Claims

23

Santana and Vasquez also allege three state-law claims against Evans:

24

malicious prosecution, negligence, and intentional infliction of emotional dis-

25

tress. As a preliminary matter, Evans argues he is protected by California’s litiga-

26

tion privilege.

27
28

1. Litigation Privilege
As summarized in the court’s previous order, California law protects any

29

“privileged publication or broadcast . . . [i]n any (1) legislative proceeding,

30

(2) judicial proceeding, (3) in any other official proceeding authorized by law, or

31

(4) in the initiation or course of any other proceeding authorized by law . . . .”

32

Cal. Civ. Code § 47(b). This protection does not apply to claims of malicious

33

prosecution, but it extends to any communication, whether or not a “publica-

34

tion,” as long as the communication is “required or permitted by law in the

35

course of a judicial proceeding to achieve the objects of the litigation, even

36

though the publication is made outside the courtroom and no function of the

30

1

court or its officers is involved.” Silberg v. Anderson, 50 Cal. 3d 205, 212 (1990).

2

“The usual formulation is that the privilege applies to any communication (1)

3

made in judicial or quasi-judicial proceedings; (2) by litigants or other partici-

4

pants authorized by law; (3) to achieve the objects of the litigation; and (4) that

5

have some connection or logical relation to the action.” Id. Section 47(b) is con-

6

strued broadly. See, e.g., Thornton v. Cal. Unemp’t. Ins. Appeals Bd., 204 Cal. App.

7

4th 1403, 1418 (2012). “Any doubt as to whether the privilege applies is resolved

8

in favor of applying it.” Adams v. Superior Court, 2 Cal. App. 4th 521, 529 (1992).

9

Here, Santana and Vasquez allege Evans was part of a conspiracy of ma-

10

licious prosecution. Evans allegedly met with the other defendants in December

11

2007 to formulate a plan. First Am. Compl. ¶ 48. His role was eventually to for-

12

ward information from Vasquez’s client files and to secure Griesa’s cooperation.

13

See id. ¶¶ 51(a), (c). Aside from participation in the lunch meeting, these actions

14

fall within the litigation privilege: they were communications from an attorney

15

who, during the representation of a client, forwarded information to prosecutors

16

in an attempt to secure a favorable result for his client. See, e.g., Home Ins. Co. v.

17

Zurich Ins. Co., 96 Cal. App. 4th 17, 24 (2002) (the litigation privilege “applies to

18

statements made by counsel during settlement negotiations”); Dove Audio, Inc. v.

19

Rosenfeld, Meyer & Susman, 47 Cal. App. 4th 777, 782–83 (1996) (statements to

20

the Attorney General in preparation for an investigation or charge are privi-

21

leged). Although no previous case appears to be directly on point, doubts are re-

22

solved in favor of applying the privilege. Adams, 2 Cal. App. 4th at 529. Section

23

47 therefore protects Evans against the claims for intentional infliction of emo-

24

tional distress and negligence.

25
26

2. Malicious Prosecution
As noted above, the litigation privilege does not apply to claims of mali-

27

cious prosecution. Silberg, 50 Cal. 3d at 212. “To establish a cause of action for

28

malicious prosecution, a plaintiff must demonstrate that the prior action (1) was

29

initiated by or at the direction of the defendant and legally terminated in the

30

plaintiff’s favor, (2) was brought without probable cause, and (3) was initiated

31

with malice.” Siebel v. Mittlesteadt, 41 Cal. 4th 735, 740 (2007). As before, the

32

court concludes the first and third elements resolve in Santana’s and Vasquez’s

33

favor: Santana’s prosecution was the conspiracy’s main event; the co-

34

conspirators were the prosecutors and investigators; Santana and Vasquez were

35

acquitted; and the prosecution’s goal was to prevent Santana’s judicial appoint-

36

ment on account of his race and ethnicity. Prev. Order at 56.

31

Evans’s previous motion to dismiss was granted because the complaint

1
2

did not specify which evidence was allegedly fabricated or wrongfully obtained.

3

Santana’s and Vasquez’s amended complaint alleges more specifically now

4

(1) the defendants knew Acevedo never intended to testify, regardless of the set-

5

tlement agreement; (2) her agreement was always intended as a settlement of

6

possible civil claims against Griesa, and the defendants knew this; (3) the defend-

7

ants suppressed evidence that suggested state law may have prevented Acevedo

8

from being held in contempt; (4) the defendants suppressed evidence of a rape in

9

an attempt to secure Santana’s and Vasquez’s indictment; and (5) the defendants

10

did all this because they wanted to prevent the judicial appointment of an His-

11

panic man to an all-White bench. As before, Santana and Vasquez state a plausi-

12

ble claim of civil conspiracy, so “[e]ach member of the conspiracy becomes liable

13

for all acts done by others pursuant to the conspiracy, and for all damages caused

14

thereby.” Berg & Berg Enters., LLC v. Sherwood Partners, Inc., 131 Cal. App. 4th

15

802, 823 (2005). These allegations paint a plausible picture of malicious prosecu-

16

tion. The motion in this respect is denied.

17

VII.

18

CONCLUSION AND LEAVE TO AMEND
The court’s previous order thoroughly discussed the law applicable to this

19

case and the plaintiffs’ claims. Plaintiffs were allowed an amendment with the

20

benefit of that order, but their amended complaint again falls short of the stand-

21

ards the court identified. Except as specifically noted below, the motions to dis-

22

miss are granted without leave to amend. See, e.g., Cafasso, 637 F.3d at 1058

23

(leave to amend may be denied when amendment would prove an exercise in

24

futility); Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989)

25

(“The district court’s discretion to deny leave to amend is particularly broad

26

where plaintiff has previously amended the complaint.”).

27

(1) The Yuba County defendants’ motion, ECF No. 44, is granted in

28

part. The first, second, third, and fourth claims are dismissed. The

29

fifth claim, for malicious prosecution, is dismissed except as asserted

30

by Santana on an equal-protection basis. The plaintiffs are granted

31

leave to amend to allege a reputation-related claim against the Yuba

32

County defendants under 42 U.S.C. § 1983, and Vasquez is granted

33

leave to amend to allege a claim of malicious prosecution to deprive

34

him of equal protection.

35

(2) Elliott’s motion, ECF No. 41, is granted.

36

(3) Judge Scrogin’s motion, ECF No. 43, is granted.

32

1

(4) Evans’s motion, ECF No. 42, is granted in part. The first, second,

2

third, fourth, tenth, and eleventh claims are dismissed. The fifth

3

claim, for malicious prosecution, is dismissed except as asserted by

4

Santana on an equal-protection basis. The plaintiffs are granted

5

leave to amend to allege a reputation-related claim against Evans

6

under 42 U.S.C. § 1983, and Vasquez is granted leave to amend to

7

allege a claim of malicious prosecution to deprive him of equal pro-

8

tection.

9

(5) Any amended complaint is due within twenty-one (21) days.

10

(6) A status (pretrial scheduling) conference is set for October 13, 2016

11

at 2:30 p.m. in Courtroom No. 3. The parties shall submit, at least

12

seven (7) days prior to the Status Conference, a Joint Status Report

13

that includes the Rule 26(f) discovery plan, with all named parties

14

participating in the preparation and completion of the report.

15
16

IT IS SO ORDERED.
DATED: August 18, 2016.

UNITED STATES DISTRICT JUDGE

33