Larios v. Lunardi, et al

Filing 55

ORDER signed by District Judge John A. Mendez on 3/4/2020 GRANTING IN PART Defendant's 42 Motion for Summary Judgment on Plaintiff's Bane Act claim against Lunardi, Jones, and Foster, as well as his Section 1983 claim against Foster. T he Court also GRANTS Defendants' motion for summary judgment on Plaintiff's Section 1983 claim against Lunardi and Jones to the extent that it rests upon the theory that they conducted an unconstitutional search. Defendants' request for summary judgment on Plaintiff's remaining claim that Defendants conducted an unlawful seizure by downloading the contents of his personal phone onto a CHP computer is taken under submission. Plaintiff shall file his surreply within seven (7) days of this Order. The Court will issue a separate Order regarding this claim after reviewing Plaintiff's surreply. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY LARIOS,

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No.

2:15-cv-02451-JAM-DMC

Plaintiff,
v.
SCOTT LUNARDI, KYLE FOSTER,
ROBERT J. JONES,

ORDER GRANTING IN PART
DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

Defendants.

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In November 2015, Plaintiff filed a two-count complaint

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against Joseph Farrow, the Commissioner of the California Highway

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Patrol (“CHP”) and five CHP officers: Scott Lunardi, Mel Hutsell,

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T. A. Garr, Kyle Foster, and R. J. Jones.

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alleged Defendants violated his rights under Section 1983 and

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California Civil Code § 52.1 (“Bane Act”).

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forth several theories of liability on each claim, alleging

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violations of the First, Fourth, Fifth, Sixth, Ninth, and
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Compl., ECF No. 1.

The complaint set

He

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Fourteenth Amendments.

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dismiss narrowed the scope of litigation. See ECF Nos. 12, 15,

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Lunardi, Foster, and Jones except the Bane Act and Section 1983

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claims premised upon their alleged Fourth Amendment violations.

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November 10, 2016 Memo. and Order, ECF No. 22.

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dismissed Farrow, Hutsell, and Garr from the suit.

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2017 Memo. and Order, ECF No. 28.

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Compl. ¶¶ 34-40.

Defendants’ motions to

The Court dismissed all of Plaintiff’s claims against

The Court also
Id.; May 15,

Defendants now request summary judgment on Plaintiff’s

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remaining claims.1

Mot. for Summ. J. (“Mot.”), ECF No. 42.

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Plaintiff filed an opposition to Defendants’ motion, Opp’n, ECF

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No. 52, to which Defendants replied.

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reasons discussed below, the Court grants Defendants’ motion for

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summary judgment on Plaintiff’s Bane Act claim against Lunardi,

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Jones, and Foster, as well as his Section 1983 claim against

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Foster.

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judgment on Plaintiff’s Section 1983 claim against Lunardi and

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Jones to the extent that it rests upon the theory that they

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conducted an unconstitutional search.

Reply, ECF No. 53.

For the

The Court also grants Defendants’ motion for summary

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The Court, however, finds Defendants did not address the

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unlawful seizure theory of Plaintiff’s Fourth Amendment claim

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until their reply brief.

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will allow Plaintiff to file a surreply addressing Defendants’

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argument that the Court should grant summary judgment on his

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claim that Defendants conducted an unlawful seizure by

Reply at 6-8, ECF No. 53.

The Court

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for February 11, 2020.
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downloading the contents of his personal phone onto a CHP

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computer.

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of this Order.

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background” section and shall not exceed ten (10) pages.

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Defendants may not file a response.

Plaintiff must file his surreply within seven (7) days
It need not include an “introduction” or “factual

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I.

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BACKGROUND

Plaintiff previously worked as a California Highway Patrol
(“CHP”) officer.

Plf.’s Response to Defs.’ Statement of

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Undisputed Facts (“RSUF”) ¶ 1, ECF No. 52-1.

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years he worked for CHP, Plaintiff was an agent with the Shasta

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Interagency Narcotics Task Force (“SINTF”).

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role, Plaintiff communicated with confidential informants.

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¶ 3.

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member of law enforcement, who provides law enforcement

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information or assistance concerning suspected criminal

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activity.”

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§ 10.1).

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with informants that are not “completely ethical and professional

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in nature.”

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without other law enforcement present and may not be alone with

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an informant absent prior approval.

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In the final two

RSUF ¶ 2.

In this
RSUF

Under SINTF policy, “[a]n informant is a person, not a

RSUF ¶ 55 (citing SINTF Informant Management Policy

The policy prohibits agents from having relationships

RSUF ¶ 56.

An agent may not contact an informant

Id.

Plaintiff began communicating with confidential informant,

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Tawnya Mellow, during SINTF’s investigation of a suspected

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marijuana dealer named Nathan Santana.

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provided information that allowed Plaintiff to obtain a search

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warrant for Santana’s residence.

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the warrant, uncovered contraband, and arrested Santana.

RSUF ¶ 9.

RSUF ¶ 10.

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Mellow

Plaintiff executed
Id.

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The Shasta County Deputy District Attorney charged Santana with

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three felony offenses.

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RSUF ¶ 10-11.

Plaintiff used his personal cell phone to communicate with

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Mellow.

RSUF ¶ 8.

SINTF issues its agents cell phones to use

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for “SINTF business” such as speaking with informants.

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Although SINTF policy allows agents to use their personal phones

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for SINTF business, it prohibits them from storing state work on

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their personal phones.

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100.95).

RSUF ¶ 7.

RSUF ¶ 4(citing CHP General Order

Rather, agents who produce CHP work product on their

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personal devices must then transfer that work to an electronic

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data storage device.

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any type of electronic device is the property of the state and

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must be relinquished on demand.”

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reviewed this policy when he was a SINTF agent.

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Id.

CHP policy states, “[w]ork stored on

Id.

Plaintiff received and
RSUF ¶ 5.

Plaintiff continued to speak with Mellow after Santana’s

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arrest.

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SINTF’s policy for agent-informant communication.

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By January 2014, Mellow and Plaintiff were romantically involved.

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RSUF ¶ 103.

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and protect his relationship with Mellow in the nine months that

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followed.

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false reports to law enforcement dispatch; disclosed confidential

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automated records to without authorization; revealed confidential

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information about SINTF operations; lied to his SINTF commander

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about his relationship with Mellow; and coordinated with Mellow

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to cover up their affair.

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RSUF ¶ 85.

He did not, however, continue to abide by
RSUF ¶¶ 96-97.

Plaintiff engaged in a range of misconduct to pursue

See RSUF ¶¶ 14-16, 19.

Specifically, Plaintiff made

Id.

In September 2014, the CHP Internal Affairs Section began
investigating Plaintiff’s relationship with Mellow.
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RSUF ¶ 44.

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This investigation came on the heels of a domestic incident at

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Mellow’s home involving Plaintiff.

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left a greeting card on a car in Mellow’s front yard.

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The card revealed Plaintiff’s romantic feelings for Mellow and

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included statements such as:

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On August 31, 2014, Plaintiff
RSUF ¶ 48.

“Since our first date (12/6/13), I have not been the same…

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And our walk across the bridge and kiss on the cheek shortly

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after your innocent text ‘Marry me’ has me wanting to ask

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you the same thing.”;

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•

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“Please know I want to spend forever with you as us !!!”;
“I want to make you happier than you’ve ever been before,
just like you were in Tahoe . . . .”; and

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“I love you for who you are Tawnya Rachelle and want nothing
more than to unite as one!!”

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RSUF ¶¶ 68, 70.

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tell him who sent it.

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Mellow’s daughter called the police.

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responding officers that Santana struck her in the face and

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threatened to kill her if she didn’t tell him who left the card.

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RSUF ¶ 48.

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Plaintiff’s involvement.

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Santana discovered the card and forced Mellow to
RSUF ¶¶ 46-47, 59.

After Santana left,

RSUF ¶ 83.

Mellow told the

The officers then told Commander James about
RSUF ¶ 80.

Investigators Scott Lunardi and Mel Hutsell led the Internal

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Affairs investigation.

RSUF ¶ 44.

They interviewed Mellow,

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Santana, James, and several SINTF agents.

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96-97.

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Plaintiff’s SINTF phone, the greeting card Plaintiff sent Mellow,

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Mellow’s domestic violence report, closed incident reports and

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audio reports Plaintiff made about Mellow, and materials relating

RSUF ¶¶ 57, 62, 76,

They also reviewed Plaintiff’s personnel file,

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to both state and federal criminal investigations of Santana.

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RSUF ¶¶ 45, 47, 49, 51, 53, 68, 74, 95.

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Lunardi and Hutsell gathered, they developed reasonable suspicion

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that Plaintiff and Mellow were in a romantic relationship

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prohibited by CHP policy.

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suspected, given the absence of texts with Mellow on Plaintiff’s

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SINTF phone, that Plaintiff was using his personal device to

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contact her.

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RSUF ¶ 103.

Based on the information

The investigators also

RSUF ¶ 104.

The Internal Affairs Section Commander, R.J. Jones, ordered

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Plaintiff to produce his personal cell phone so investigators

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could search the device for work product.

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Plaintiff initially refused, but ultimately turned over his

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phone.

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Domby and Computer Crimes Investigator Curtis Duray, attempted to

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extract Plaintiff’s texts with Mellow from Plaintiff’s phone.

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RSUF ¶ 114.

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tools failed to connect with Plaintiff’s phone, the officers

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tried to video record the string of messages in Plaintiff and

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Mellow’s text thread.

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this approach proved too time intensive, so they created a backup

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of Plaintiff’s entire phone on Duray’s computer.

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119.

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Mellow from that backup.

RSUF ¶ 111, 113.

RSUF ¶¶ 105, 109-10.

Lunardi, along with CHP Officer Kevin

After two of the department’s forensic extraction

RSUF ¶¶ 115-16.

The investigators found

RSUF ¶¶ 117,

The investigators then extracted Plaintiff’s messages with
RSUF ¶ 123.

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II.

OPINION

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A.

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Federal Rule of Evidence 201 permits a court to “judicially

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Request for Judicial Notice

notice a fact that is not subject to reasonable dispute because
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it (1) is generally known within the trial court’s territorial

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jurisdiction; or (2) can be accurately and readily determined

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from sources whose accuracy cannot reasonably be questioned.”

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FRE 201(b).

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Plaintiff requests the Court take judicial notice of the
following filings in this proceeding:

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Plaintiff’s compliant, filed November 24, 2015;

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The Court’s November 14, 2016 order and memorandum;

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Plaintiff’s second amended complaint, filed November 23,

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2016; and
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Defendants’ answer to Plaintiff’s second amended
complaint, filed May 15, 2017.

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Plf.’s Request for Judicial Notice (“Plf.’s RJN”), ECF No. 52-4.

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The Court need not take judicial notice of prior filings in its

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own case.

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Management Dist., 935 F.Supp.2d 968, 979 (E.D. Cal. 2013).

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Court therefore denies Plaintiff’s request for judicial notice.

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Defendants also filed a request for judicial notice.

See Hardesty v. Sac. Metropolitan Air Quality

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Defs.’ RJN, ECF No. 42-4.

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The

judicial notice of:

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Defendants request the Court take

Eastern District of Missouri’s order in Manasco v. Bd. Of

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Police Comm’rs, No. 4:11-cv-00557-CDP, at *4-7 (E.D. Mo.

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Apr. 1, 2011) (available at

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http://www.aele.org/manasco.pdf); and

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Transcript of the September 17, 2014 Proceedings in Shasta

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County Superior Court for People of the State of California

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v. Robin Carl Rudolph and Nathan John Santana, No. 13F7922.

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Defs.’ RJN at 1-2.
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A Court may take judicial notice of matters of public

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record.

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Cir. 2001). But in doing so, a court cannot assume the truth of

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the information contained therein.

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caveat in mind, the Court finds the Manasco decision and the

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September 17, 2014 proceeding in People v. Rudolph, et al. are

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proper subjects of judicial notice.

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Defendants’ request.

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B.

Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th

Id. at 689-90.

Bearing this

The Court grants

Evidentiary Objections

Plaintiff objects to several of Defendants’ statements of

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undisputed facts.

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evidentiary objections but declines to rule on them.

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self-police on evidentiary issues arising at the motion for

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summary judgment stage.

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unnecessary. See Henry v. Central Freight Lines, Inc., No. 2:16-

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cv-00280-JAM-EFB, 2019 WL 2465330, at *2 (E.D. Cal. June 13,

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2019); Burch v. Regents of the University of California, 433

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F.Supp.2d 1110, 1118–1122 (E.D. Cal. 2006).

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C.

See generally RSUF.

The Court reviewed these
Courts

Formal evidentiary rulings are

Analysis
1.

Spoliation

The Court first addresses Plaintiff’s contention that

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Defendants engaged in spoliation.

Spoliation is “the

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destruction or significant alteration of evidence, or the

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failure to preserve property for another’s use as evidence, in

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pending or future litigation.”

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590 F.3d 636, 649 (9th Cir. 2009).

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rooted in litigants’ “duty to preserve evidence which [they

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know], or reasonably should know, is relevant in [an] action.”

Kearny v. Foley & Lardner, LLP,

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Rules against spoliation are

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Harbor v. Cherniss, 2017 WL 2472242, at *2 (E.D. Cal. June 8,

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2017) (quoting Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 217

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(S.D.N.Y. 2003)); see also Fed. R. Civ. Proc. 37(e).

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to preserve encompasses information that is “reasonably

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calculated to lead to the discovery of admissible evidence, []

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reasonably likely to be requested during discovery, and/or the

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subject of a pending discovery request.”

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throughout litigation but also “to the period before litigation

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when a party should reasonably know that evidence may be

It applies

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relevant to anticipated litigation.”

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owes this duty to opposing counsel, it must “suspend any

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existing policies related to deleting or destroying files and

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preserve all relevant documents related to the litigation.”

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(quoting In re Napster, Inc. Copyright Litig., 462 F.Supp.2d

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1060, 1070 (N.D. Cal. 2006)).

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Id.

Id.

This duty

So long as a party

Id.

Plaintiff argues Defendants violated their duty to preserve

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relevant evidence when they allowed Duray to “wipe” all data

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from the computer used to backup Plaintiff’s phone and return

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the computer to the Secret Service.

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contends a “forensic analysis [of] the actual computers and data

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could reveal exactly what was searched, when, and by whom.”

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at 24.

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Defendants “preclude[d] [him] from proving his central

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allegation, namely that his personal data was seized, searched,

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and kept in CHP control for an impermissibly lengthy period of

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time.”

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Opp’n at 21-24.

Plaintiff

Id.

By “deleting this data and giving the computer away,”

Id.

But as Defendants argue, the Court cannot reach the merits
of Plaintiff’s spoliation claim because of his inexplicable
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delay in raising it.

Although specific deadlines vary across

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courts, it is well-established that “unreasonable delay can

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render a spoliation motion untimely.”

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Communications, Inc., No. 10-cv-2133-GPC-WVG, 2013 WL 2244333,

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at *16 (S.D. Cal. May 21, 2013) (collecting cases).

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Rhabarian v. Cawley, No. 10-cv-00767, 2014 WL 546015, at *3

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(E.D. Cal. Feb. 11, 2014), this Court found a spoliation claim

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untimely when a party raised it after the close of discovery.

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The Court found that although “Plaintiffs’ allegations of

Cottle-Banks v. Cox

In

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spoliation [were] troubling . . . the time to raise these issues

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was during discovery, and not after the deadline for dispositive

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motions.”

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allowed parties to raise spoliation claims after the close of

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discovery.

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Services, Inc., No. 13-cv-1946-LAB-WVG, 2015 WL 4077732, at *2

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(S.D. Cal. July 6, 2015).

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these types of claims “as soon as reasonably possible after

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[uncovering] the facts that underlie the motion.”

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v. Orange County Sheriff’s Dept., No. SACV 11-cv-1922-JGB-RNB,

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2013 WL 6705992, at *6 (C.D. Cal. Dec. 18, 2013).

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record here, the Court cannot find Plaintiff met either

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standard.

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Other federal district courts in California have

See, e.g., Sherwin-Williams Co. v. JB Collision

They nonetheless insist parties raise

Id.; Montoya

Based on the

In September 2018, Defendants produced Officer Duray’s

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report to Plaintiff.

Daily Decl. ¶ 4, ECF No. 53-1.

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report explained that the CHP officers downloaded the contents

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of Plaintiff’s cell phone onto Duray’s laptop and then

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transferred it to another laptop.

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conduct further discovery on either of those laptops.
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Id.

Duray’s

Plaintiff did not
Id.

In

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March 2019, at Duray’s deposition, Duray again explained that

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the officers used Duray’s laptop to download the contents of

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Plaintiff’s personal phone.

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he “wiped” his laptop and returned it to the Secret Service in

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2016.

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claim of spoliation—after discovery closed and the dispositive

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motion deadline passed.

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opposition does not explain why his nine-month delay is

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reasonable; nor can the Court identify a sound basis for

Id.

Opp’n at 21.

Duray testified that

Plaintiff then waited over nine months to raise a

See ECF Nos. 33, 34.

Plaintiff’s

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reaching that conclusion.

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Plaintiff’s motion for Rule 37(e) spoliation sanctions.

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2.

For this reason, the Court denies

Kyle Foster

Defendants argue the Court should grant summary judgment on

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Plaintiff’s claims against Kyle Foster.

Mot. at 29-30.

As

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Defendants argue, Plaintiff did not produce any evidence that

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Foster participated in the administrative investigation that gave

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rise to the alleged Fourth Amendment violation.

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Plaintiff does not oppose Defendants’ arguments about Foster’s

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lack of participation.

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(1) Foster had no knowledge that CHP intended to take possession

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of Plaintiff’s phone, RSUF ¶ 129; (2) Foster did not participate

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in extracting or reviewing any data from Plaintiff’s personal

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cell phone, RSUF ¶ 130; and (3) Plaintiff has no personal

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knowledge regarding Foster’s role in the investigation into

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Plaintiff’s misconduct, RSUF ¶ 131.

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Court finds that Plaintiff’s claims that Foster conducted either

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an unlawful search or seizure fail as a matter of law.

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v. Williams, 297 F.3d 930, 934-35 (9th Cir. 2002).

See id.

Indeed, Plaintiff concedes the following:

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Given these concessions, the

See Jones

The Court

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therefore grants Defendants’ motion for summary judgment on all

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of Plaintiff’s claims against Foster.

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3.

Section 1983

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Section 1983 of the Civil Rights Act creates a private

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right of action against any person who, under the color of state

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law, deprives another “of any rights, privileges, or immunities

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secured by the Constitution and laws” of the United States. 42

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U.S.C. § 1983.

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from liability when the conduct challenged “does not violate

But qualified immunity shields state officials

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clearly established statutory or constitutional rights.”

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v. Fitzgerald, 457 U.S. 800, 818 (1982).

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Harlow

Defendants maintain their limited inspection of Plaintiff’s

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texts to Tawnya Mellow as part of their administrative

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investigation was constitutional.

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search violated the Fourth Amendment, Defendants argue, clearly

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established law did not proscribe their conduct at the time it

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occurred.

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established constitutional law, Defendants conclude they are

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entitled to qualified immunity against Plaintiff’s Fourth

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Amendment claims in their entirety.

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Mot. at 30-33.

Mot. at 9-25.

Even if the

Absent a violation of clearly

Id.

As a preliminary matter, the Court finds Defendants’ motion

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fails to meaningfully distinguish Plaintiff’s Fourth Amendment

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claim of unlawful search from his claim of unlawful seizure

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under the same amendment.

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alleges Defendants’ violated his Fourth Amendment rights because

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they subjected him to an unreasonable search and an unreasonable

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seizure.

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motion for summary judgment confirms that he is challenging the

SAC ¶ 33(a).

Plaintiff’s operative complaint

Plaintiff’s opposition to Defendants’

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constitutionality of both the acquisition of his cell phone’s

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contents and the subsequent inspection of that information.

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See, e.g., Opp’n at 3, 9-13.

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complaint as raising two distinct theories of liability under

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Section 1983: (1) Defendants conducted an unlawful seizure under

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the Fourth Amendment when they downloaded the contents of

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Plaintiff’s cell phone onto a CHP computer; and (2) Defendants

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conducted an unlawful search under the Fourth Amendment when

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they inspected the contents of Plaintiff’s cell phone.

Accordingly, the Court reads the

See

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Soldal v. Cook County, III, 506 U.S. 56, 63 (1992) (“[T]he

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Fourth Amendment ‘protects two types of expectations, one

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involving searches, the other seizures.’”) (quoting U.S. v.

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Jacobsen, 466 U.S. 109, 112 (1984)).

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Defendants’ opening brief only addressed Plaintiff’s unlawful-

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search theory. Plaintiff’s unlawful-seizure theory was addressed

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for the first time in Defendants’ reply.

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grants Plaintiff the opportunity to file a surreply, addressing

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the arguments Defendants raised against his unlawful seizure

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theory in their reply.

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seven (7) days of this order; it may not exceed ten (10) pages.

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Defendants’ motion for summary judgment does, however,

As noted above,

The Court therefore

Plaintiff must file his surreply within

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properly challenge Plaintiff’s claim that that Defendants

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conducted an unlawful search of his phone.

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Defendants are entitled to qualified immunity on Plaintiff’s

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Section 1983 claim to the extent that it is premised upon this

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theory of Fourth Amendment liability.

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a.

The Court finds

Qualified Immunity

Qualified immunity aims to “balance two important
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interests—the need to hold public officials accountable when the

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exercise power irresponsibly and the need to shield officials

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from harassment, distraction, and liability when the perform

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their duties reasonably.”

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231 (2009).

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immunity is not “a mere defense to liability;” it is an immunity

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from suit.

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immunity when “their conduct does not violate clearly

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established statutory or constitutional rights of which a

Pearson v. Callahan, 555 U.S. 223,

As the name of the doctrine suggests, qualified

Id.

Law enforcement officers are entitled to this

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reasonable person would have known.”

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City of Escondido, Cal. v. Emmons, 139 S. Ct. 500, 503 (2019).

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Accordingly, courts deciding whether an officer is properly

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immune from suit ask two questions: (1) did the officer’s

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conduct violate a federal right? and (2) was that right clearly

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established at the time the officer’s conduct occurred?

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(i)

Harlow, 457 U.S. at 818;

Constitutional Violation

The Fourth Amendment, incorporated against the states by

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the Fourteenth Amendment, protects “the right of the people to

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be secure in their persons, house, papers, and effects against

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unreasonable searches and seizures.”

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the text indicates, “the ultimate touchstone of the Fourth

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Amendment is ‘reasonableness.’”

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373, 381 (2014) (quoting Brigham City v. Stuart, 547 U.S. 398,

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403 (2006)).

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reasonable, it must first ask whether there was a search at all.

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O’Connor v. Ortega, 480 U.S. 709, 717-18 (1987) (plurality

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opinion); Katz v. United States, 389 U.S. 347, 351 (1967).

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A search occurs when a state official intrudes upon a

U.S. CONST. Amend. IV.

As

Riley v. California, 573 U.S.

But before a court determines whether a search was

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person’s reasonable expectation of privacy.

U.S. v. Jones, 565

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U.S. 400, 406 (2012); O’Connor, 480 U.S. at 715.

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“reasonable,” the expectation must be one that society would

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find objectively reasonable; it must also be an expectation that

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is subjectively held.

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concurring).

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reasonableness of an expectation of privacy . . . is understood

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to differ according to context.”

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workplace, for example, “operational realities” may “diminish an

To be

Id.; Katz, 389 U.S. at 361 (Harlan,

As the O’Connor plurality explained, “the

480 U.S. at 716.

In the

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employee’s privacy expectations,” particularly “when an

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intrusion is by a supervisor rather than a law enforcement

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official.”

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practices and procedures[] or [] legitimate regulation.”

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Id. at 717.

This diminution may result from “office
Id.

Plaintiff argues Defendants’ inspection of his phone is a

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mirror image of what happened to the petitioner in Riley v.

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California, 573 U.S. 373 (2014).

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se bar to warrantless cell phone searches, Plaintiff contends

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Riley should be the beginning and end of this Court’s analysis.

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Opp’n at 15-16.

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proposition for which Plaintiff advocates.

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officers stopped a man for a traffic violation.

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The officers conducted a search incident to arrest, seizing the

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man’s cell phone and looking through its contents.

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79.

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amounted to a search and proceeded to the question of whether

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the search was reasonable.

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whether the search-incident-to-arrest exception to the Fourth

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Amendment’s warrant requirement applied to searches of a cell

Reading the decision as a per

But Riley does not represent the broad
In Riley, police
Id. at 378.

Id. at 378-

The Supreme Court took for granted that this conduct

Id.

More specifically, it addressed

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1

phone’s contents.

2

did not apply but left open the possibility that other

3

exceptions to the warrant requirement might permit a warrantless

4

cell phone search.

5

Id. at 382.

The Court found the exception

Id. at 401.

Riley is not sufficiently similar to the case at hand to

6

inform this Court’s analysis.

Even setting aside the narrowness

7

of Riley’s legal holding, the factual distinctions between this

8

case and Riley prevent the case from being a helpful comparator.

9

Riley involved a criminal investigation that resulted in the

10

search of personal information on a personal device.

11

argues Defendants’ investigation was likewise criminal in nature

12

and that their search of his cell phone encompassed purely

13

personal information.

14

evidence to this effect.

15

only evidence before the Court paints a different picture—one

16

where Defendants, acting as supervisors rather than law

17

enforcement, conducted an administrative investigation into

18

Plaintiff’s misconduct.

19

of that inspection, they reviewed text messages that CHP

20

considered work product under its governing policy.

21

¶ 105.

22

Defendants were treating him “like a criminal” is insufficient

23

to give rise to a genuine dispute of material fact about whether

24

Defendants’ investigation was, in fact, criminal.

25

Mot. at 203:20-23.

26

Quon, not Riley, is more instructive.

27
28

Plaintiff

But Plaintiff does not produce any
See RSUF ¶¶ 126, 133.

Indeed, the

See RSUF ¶¶ 25-27, 29, 38-41.

As part

See RSUF

Plaintiff’s deposition testimony that he felt like

See Exh. A to

For this reason, City of Ontario, Cal. v.
See 560 U.S. 746 (2010).

In Quon, 560 U.S. at 758-59, the Supreme Court confronted a
workplace investigation comparable to the one at issue here.
16

1

The City of Ontario issued pagers to its SWAT team so the

2

members could mobilize and respond to emergency situations.

3

at 751.

4

policy” whereby it “reserve[d] the right to monitor and log all

5

network activity.”

6

“should have no expectation of privacy or confidentiality when

7

using these resources.”

8

it explained that pager messages fell within this policy even

9

though they did not technically use the City’s network.

Id.

The City had a “computer usage, internet, and e-mail

Id.

The policy cautioned users that they

Id.

When the City issued the pagers,

Id.

10

Following several months of pager overage fees, the police chief

11

decided to audit Quon’s text messages.

12

and read transcripts of the messages Quon sent during the

13

workday over a two-month period.

14

suit, arguing this amounted to an unconstitutional search.

15

at 753-54.

16

Id. at 752.

Id. at 752-53.

He acquired

Quon filed
Id.

In arriving at its conclusion that the City’s audit did not

17

violate the Fourth Amendment, the Supreme Court assumed without

18

deciding that Quon had a reasonable expectation of privacy in

19

the messages he sent with his work pager.

20

Court found it necessary to “proceed with care when considering

21

the whole concept of privacy expectations made on electronic

22

equipment owned by a government employer.”

23

further voiced uncertainty about “how workplace norms, and the

24

law’s treatment of them will evolve” in light of “[r]apid

25

changes in the dynamics of communication and information

26

transmission.”

27
28

Id. at 759-61.

Id. at 759.

The

It

Id.

This Court finds itself in a similar position.

Much like

Quon, Plaintiff comingled his work life and personal life on a
17

1

single device.

2

for personal communication; Plaintiff used a personal device to

3

engage in CHP-regulated communication.

4

752-54.

5

prescribing the scope of a person’s privacy expectations when

6

work content and personal content coexist on one device.

7

Quon, 560 U.S. at 759-61.

8

did, assumes arguendo that Defendants conducted a search, but

9

finds that search was reasonable under the Fourth Amendment.

10

RSUF ¶¶ 85, 101, 104.

Quon used a work device

Id.; Quon, 560 U.S. at

This Court heeds Quon’s warning against broadly

See

For this reason, the Court, as Quon

Warrantless searches are “per se unreasonable—subject only

11

to a few specifically established and well delineated

12

exceptions.”

13

Cir. 1990).

14

carved out an exception to the warrant requirement for searches

15

that occur pursuant to a subset of workplace inspections.

16

majority adopted that exception in Quon:

17
18
19
20
21
22
23

United States v. Hawkins, 249 F.3d 867, 872 (9th
In O’Connor, a plurality of the Supreme Court

A

When conducted for a noninvestigatory, work-related
purpos[e] or for the investigation of work-related
misconduct, a government employer’s warrantless search
is reasonable if it is justified at its inception and
if the measures adopted are reasonably related to the
objectives of the search and not excessively intrusive
in light of the circumstances giving rise to the
search.
560 U.S. at 761-62 (quoting O’Connor, 480 U.S. at 725-26).
As explained above, Plaintiff failed to produce any

24

evidence that Defendants’ search occurred pursuant to a criminal

25

investigation, rather than an investigation of work-related

26

misconduct.

27

exception sets forth the governing standard for whether

28

Defendants’ search was reasonable.

The Court therefore finds that the O’Connor/Quon

18

1

Moreover, the Court finds Defendants’ inspection of CHP

2

work product was in fact justified at its inception, reasonably

3

related to the objectives of their search, and appropriate in

4

light of the surrounding circumstances.

5

inexplicably left a romantic greeting card at the residence of a

6

confidential informant and the target of a criminal

7

investigation.

8

violence incident that jeopardized Mellow’s safety.

9

also resulted in the dismissal of federal charges against

RSUF ¶ 48.

This card gave rise to a domestic
Id.

It

10

Santana.

11

to understand the scope of Plaintiff’s communication with Mellow

12

and mitigate harm that might flow from his potential misconduct.

13

RSUF ¶¶ 18, 21.

14

search, even within Plaintiff’s texts with Mellow, to a subset

15

of messages spanning from September 1, 2013 (the month Mellow

16

initially contacted SINTF with information about Santana) to

17

November 5, 2014 (the day before CHP directed Plaintiff to

18

produce his phone).

19

again resembles Quon, 560 U.S. at 761-62 (finding a public

20

employer’s tailored review of an employee’s text messages was

21

reasonable in light of the surrounding circumstances).

22

sure, issues regarding the reasonableness of Defendants’ seizure

23

of Plaintiff’s data remain.

24

Plaintiff’s texts with Mellow was reasonably related to the

25

objectives of the investigation and not excessively intrusive

26

given the grave abuse of power suspected.

27
28

RSUF ¶ 12.

Plaintiff had

The undisputed facts show that CHP sought

They also show that Defendants limited their

RSUF ¶ 107.

In this respect, the case

To be

But Defendants’ limited search of

See Mot. at 25-28.

For the reasons discussed above, Plaintiff failed to raise
a genuine issue of material fact about whether Defendants’
19

1

inspection of his text messages with Mellow violated the Fourth

2

Amendment.

3
4

(ii) Clearly Established
Even if Defendants’ inspection of Plaintiff’s text exchange

5

with Mellow was an unreasonable search, it did not violate a

6

right that was clearly established at the time Defendants’

7

conduct occurred.

8

“with specificity.”

9

clearly established unless its “contours [are] sufficiently

Courts must define clearly established rights
Emmons, 139 S. Ct. at 503.

A right is not

10

definite that any reasonable officer would have understood that

11

he was violating it.”

12

1148, 1153 (2018).

13

of his claim that his right to be free from Defendants’ search

14

was clearly established provides a closer analog than Quon, 560

15

U.S. at 758-65.

16

existence of Plaintiff’s claimed protection.

17

Court finds Plaintiff failed to raise a genuine dispute of

18

material fact about whether Defendants violated a clearly

19

established Fourth Amendment right.

20
21

Id. (quoting Kisela v. Hughes, 138 S. Ct.

None of the cases Plaintiff cites in support

But Quon cuts against, not toward, the
Accordingly, the

(iii) Conclusion
Defendants are entitled to qualified immunity with respect

22

to Plaintiff’s claim that the inspection of his text messages

23

with Mellow amounted to an unlawful search.

24

Defendants’ motion for summary judgment on this claim.

25

4.

The Court grants

Bane Act

26

The Bane Act allows an individual “whose exercise or

27

enjoyment of rights secured by the constitution . . . has been

28

interfered with” to “institute and prosecute . . . a civil action
20

1

for damages.”

Cal. Civ. Code § 52.1(c).

Under the Bane Act, a

2

plaintiff must prove that the person who interfered with his

3

constitutional rights did so “by threat, intimidation, or

4

coercion” or acted with the “particular purpose” of depriving him

5

of those rights.

6

17 Cal. App. 5th 766, 803 (2017).

7

intimidation, or coercion,” a plaintiff must in most cases

8

identify more than “speech alone.”

Id.; Cornell v. City & Cnty. of San Francisco,
To prove “threat,

Cal. Civ. Code § 52.1(k).

9

Defendants argue they are entitled to summary judgment on

10

Plaintiff’s Bane Act claim because Plaintiff’s unlawful search

11

claim fails as a matter of law and because Plaintiff failed to

12

produce any evidence that Defendants violated his rights “by

13

threat, intimidation, or coercion.”

14

agrees with both arguments.

15

unlawful search claim fails as a matter of law.

16

that Plaintiff’s Bane Act claim rests upon this alleged

17

constitutional violation, it fails as well.

18

Mot. at 33-34.

The Court

As discussed above, Plaintiff’s
To the extent

But Plaintiff’s Bane Act claim also fails because he has not

19

produced any evidence that he was threatened, intimidated, or

20

coerced in a cognizable way.

21

did not verbally threaten him with violence, retaliation,

22

criminal charges.

23

instead that a January 30, 2015 memorandum amounted to a threat

24

of arrest.

25

07-cv-1625-LKK-KJM, 2009 WL 9156144, at *17 (E.D. Cal. Jan. 26,

26

2009)).

Plaintiff concedes that Defendants

Ex. 1 to Mot. at 212:19-214:20. He argues

Opp’n at 30 (citing Cuveillo v. City of Stockton, No.

27

Even when viewing the facts in the light most favorable to

28

Plaintiff, no reasonable juror could read this memo as a threat
21

1

of criminal arrest.

The January 30, 2015 memo is from the

2

“Internal Affairs Section” of the CHP.

3

No. 43-1.

4

Id.

5

members of the Internal Affairs Section.

6

memo refers to prosecution, arrest, a violation of criminal law,

7

or any form of detention.

See Exh. 28 to Mot., ECF

It is titled “NOTICE OF ADMINISTRATIVE INTERROGATION.”

And it states that the investigation will be conducted by
Id.

Nothing in the

8

Because Plaintiff failed to produce evidence of threat,

9

intimidation, or coercion, Defendants are entitled to judgment on

10

the Bane Act claim under both of Plaintiff’s theories of

11

constitutional liability.

12

Defendants’ motion for summary judgment on Plaintiff’s Bane Act

13

claim in its entirety.

Accordingly, the Court grants

14
15
16

III.

ORDER

For the reasons set forth above, the Court GRANTS IN PART

17

Defendants’ motion for summary judgment.

18

Defendants’ motion for summary judgment on Plaintiff’s Bane Act

19

claim against Lunardi, Jones, and Foster, as well as his Section

20

1983 claim against Foster.

21

motion for summary judgment on Plaintiff’s Section 1983 claim

22

against Lunardi and Jones to the extent that it rests upon the

23

theory that they conducted an unconstitutional search.

24

The Court grants

The Court also grants Defendants’

Defendants’ request for summary judgment on Plaintiff’s

25

remaining claim that Defendants conducted an unlawful seizure by

26

downloading the contents of his personal phone onto a CHP

27

computer is taken under submission.

28

surreply within seven (7) days of this Order.
22

Plaintiff shall file his
The Court will

1

issue a separate Order regarding this claim after reviewing

2

Plaintiff’s surreply.

3
4

IT IS SO ORDERED.
Dated: March 4, 2020

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