Dinius v. Perdock et al

Filing 80

ORDER by Judge Maria-Elena James granting in part and denying in part 67 Motion to Dismiss; granting in part and denying in part 68 Motion to Dismiss; granting in part and denying in part 74 Motion to Dismiss (cdnS, COURT STAFF) (Filed on 5/24/2012)

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UNITED STATES DISTRICT COURT

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Northern District of California

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BISMARK F. DINIUS,

No. C 10-3498 MEJ

Plaintiff,

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ORDER ON DEFENDANTS’
MOTIONS RE: PLAINTIFF’S
SECOND AMENDED COMPLAINT
(DOCKET NOS. 67, 68, AND 74)

v.
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RUSSELL L. PERDOCK, et al.,
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Defendants.
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_____________________________________/
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For the Northern District of California

UNITED STATES DISTRICT COURT

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I. INTRODUCTION
Plaintiff Bismark Dinius initiated this lawsuit in 2010 against Defendants Lake County and

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several County law enforcement officials and employees. Dkt. No. 1. In a previous order, the Court

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summarized the core of Dinius’s allegations against Defendants as follows:

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On April 29, 2006, Plaintiff was manning the tiller of a 27-foot sailboat owned and
operated by Mark Weber on Clear Lake in Lake County, California. At about 9:10
p.m., the sailboat was returning to shore under lit full sail. Mr. Weber’s girlfriend,
Lynn Thornton, was seated in the starboard rear quarter of the sailboat. Defendant
Russell Perdock was also on Clear Lake at that time, pleasure-boating in his 24-foot
powerboat. Plaintiff alleges that, traveling in the range of 40 to 60 m.p.h., Perdock’s
powerboat collided with the sailboat, killing Ms. Thornton. According to Plaintiff,
the ensuing investigation into the collision by Defendants was tainted by fabricated
evidence, Defendants’ failure to disclose exculpatory evidence, and a conspiracy
among Defendants to frame Plaintiff for Ms. Thornton’s death and protect Defendant
Perdock, all of which led to criminal charges being filed against Plaintiff and Plaintiff
ultimately being prosecuted for felony boating under the influence.

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Dkt. No. 63 at 2 (citations omitted). Defendants filed several motions with respect to Dinius’s

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complaint, including motions to dismiss and motions to strike. Dkt. Nos. 44, 46, 47, and 50. After

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reviewing the parties’ arguments and holding a hearing, the Court issued an order that essentially

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permitted Dinius to amend his complaint so that his federal claims under 42 U.S.C. § 1983 would

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specifically plead each constitutional right that he alleged was violated by Defendants.1 Dkt. No. 63.

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As part of this order, the Court also denied Perdock’s motion to strike. Dkt. No. 63.

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If Dinius amended his complaint, Defendants would be free to refile their motions and the Court

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would then revisit the issues raised by the parties.
Dinius complied with the Court’s instructions and filed a second amended complaint

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(“SAC”) that asserted the same core allegations as earlier and included the following specific claims

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against various Defendants: (1) a Section 1983 Brady claim; (2) a Section 1983 Devereaux claim;

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(3) a Section 1983 Youngblood claim; (4) a Section 1983 malicious prosecution claim; (5) a Section

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1983 conspiracy claim; (6) a state law intentional infliction of emotional distress ("IIED") claim;

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and (7) a state law malicious prosecution claim. Defendants have filed motions to dismiss the SAC

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and Defendant John Hopkins has also filed a motion to strike Dinius’s IIED claim pursuant to

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California Code of Civil Procedure § 425.16 (anti-SLAPP motion). Dkt. Nos. 67, 68, and 74.

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Having thoroughly reviewed the parties’ arguments, the Court rules as follows.

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For the Northern District of California

UNITED STATES DISTRICT COURT

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II. LEGAL STANDARD
A. Motion to Dismiss
A court may dismiss a complaint under Federal Rule of Civil Procedure (FRCP) 12(b)(6)

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when it does not contain enough facts to state a claim for relief that is plausible on its face. See Bell

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Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff

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pleads factual content that allows the court to draw the reasonable inference that the defendant is

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liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). “The plausibility

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standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a

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defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 557). “While a complaint

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attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s

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obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and

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conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual

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allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S.

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at 555 (internal citations and parentheticals omitted).

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In considering a motion to dismiss, a court must accept all of the plaintiff’s allegations as
true and construe them in the light most favorable to the plaintiff. See id. at 550; Erickson v.

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Pardus, 551 U.S. 89, 93-94 (2007); Vasquez v. Los Angeles Cnty., 487 F.3d 1246, 1249 (9th Cir.

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2007). If the court dismisses the complaint, it should grant leave to amend even if no request to

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amend is made “unless it determines that the pleading could not possibly be cured by the allegation

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of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Cook, Perkiss and

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Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990)).

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B. Anti-SLAPP Motion

an early stage nonmeritorious litigation meant to chill the valid exercise of the constitutional rights

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of freedom of speech and petition in connection with a public issue.” Sipple v. Found. for Nat’l

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Progress, 71 Cal.App.4th 226, 235 (1999). This type of nonmeritorious litigation is referred to

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under the acronym “SLAPP,” or Strategic Lawsuit Against Public Participation. Id. The archetypal

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For the Northern District of California

California Code of Civil Procedure § 425.16 provides a procedure for a court “to dismiss at

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UNITED STATES DISTRICT COURT

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SLAPP complaint is a “generally meritless suit[ ] brought by large private interests to deter common

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citizens from exercising their political or legal rights or to punish them for doing so.” Wilcox v. Sup.

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Ct., 27 Cal.App.4th 809, 816 (1994) (disapproved on other grounds). “California enacted section

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425.16 to provide a procedural remedy to resolve such a suit expeditiously.” Dowling v.

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Zimmerman, 85 Cal.App.4th 1400, 1414 (2001) (internal quotation marks and citation omitted).

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When a plaintiff brings a SLAPP complaint, the defendant may move to strike the complaint

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under Section 425.16. “Analysis of an anti-SLAPP motion to strike involves a two-step process.”

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Kearney v. Foley & Lardner LLP, 590 F.3d 638, 648 (9th Cir. 2009). First, the defendant must

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make an initial prima facie showing that the plaintiff’s suit arises from an act in furtherance of the

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defendant’s right of petition or free speech. Braun v. Chronicle Publ’g Co., 52 Cal.App.4th 1036,

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1042-43 (1997). Second, “[i]f the court determines that the defendant has met this burden, it must

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then determine whether the plaintiff has demonstrated a probability of prevailing on the merits.”

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Kearney, 590 F.3d at 648; Damon v. Ocean Hills Journalism Club, 85 Cal.App.4th 468, 474 (2000).

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If the plaintiff is unable to provide the factual and legal support for the challenged cause of action,

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the complaint should be stricken. Cal. Code Civ. P. § 425.16(b); Dowling, 85 Cal.App.4th at 1417.

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In reviewing a motion under Section 425.16, “the trial court is required to consider the pleadings and

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the supporting and opposing affidavits stating the facts upon which the liability or defense is based.”

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Church of Scientology v. Wollersheim, 42 Cal.App.4th 628, 646 (1996) (disapproved on other

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grounds).

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III. DISCUSSION
The Court addresses the Defendants’ motions in turn below.
A. Lake County, Lake County Sheriff’s Office (LCSO), and Employees’ Motion to Dismiss
1. Eleventh Amendment

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The first issue raised by the County Defendants’ motion is whether the Eleventh Amendment

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bars all federal claims against Defendants Rodney Mitchell (Sheriff of the LCSO) and Lake County.

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This is not a new dispute; it has been addressed by numerous courts within this Circuit with varying

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outcomes. The Johnston v. County of Sonoma court aptly summarized the issue as follows:

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For the Northern District of California

UNITED STATES DISTRICT COURT

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Whether sheriffs are state or local officials for purposes of section 1983 suits
challenging police practices is a somewhat open question. The answer to that
question is important, because state actors acting in their official capacities are
entitled to Eleventh Amendment immunity whereas actors for political subdivisions
(like counties) are not. See Pittman v. Oregon, Employment Dept., 509 F.3d 1065,
1071 (9th Cir. 2007). In one view, adopted by Judge Seeborg and others and based
on Venegas v. County of Los Angeles, 32 Cal.4th 820, (2004), sheriffs are state actors
entitled to Eleventh Amendment immunity at least where, as here, their activities
relate to law enforcement duties within their jurisdictions. Committee for Immigrant
Rights of Sonoma Cty. v. Cty. of Sonoma, 2010 WL 2465030, at *3 (N.D. Cal. June
11, 2010). Other district courts continue to adhere to the Ninth Circuit’s ruling in
Brewster v. Shasta County, 275 F.3d 803, 812 (9th Cir. 2001), which held that
sheriffs are not immune from section 1983 suits when engaged in law enforcement
duties because even in that context they act as the final policymaker for a county.
See, e.g., Fontana v. Alpine Cty., 2010 WL 3834823 (E.D. Cal. 2010) (“To the extent
the conduct at issue in this case constitutes ‘law enforcement’ duties, the court is
bound by Ninth Circuit precedent, specifically, Brewster . . . .”).

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2011 WL 855934, at *2 (N.D. Cal. Mar. 9, 2011) (full citations omitted). The Johnston Court went

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on to find that in its view, “Judge Seeborg has the more sensible position not because the Venegas

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case is binding but because it represents the correct statement of the function of California sheriffs.”

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Id. But, as Johnston noted, other courts continue to uphold the Ninth Circuit’s decision from

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Brewster. See e.g., Armstrong v. Siskiyou Cnty. Sheriff’s Dep’t, 2008 WL 686888, at *7-8 (E.D.

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Cal. Mar. 13, 2008) (“Although the Ninth Circuit has not revisited this matter since Venegas, it is

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clear that federal claims must be ruled by federal law”); Shoval v. Sobzak, 2009 WL 2780155, at *3

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(S.D. Cal. Aug. 31, 2009) (acknowledging Venegas but holding that “until the Ninth Circuit

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addresses the issue and abrogates Brewster, this Court is bound by Ninth Circuit precedent”); Pruitt

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v. Cnty. of Sacramento, 2010 WL 3717302, at *1-2 (E.D. Cal. Sept. 15, 2010) (same); see also Smith

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v. Cnty. of Los Angeles, 535 F.Supp.2d 1033, 1035-38 (C.D. Cal. Feb. 7, 2008) (holding that

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Venegas misapplied federal law and urging the California Supreme Court to reconsider its decision).

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The above cases show that there is a conflict whether California Supreme Court’s decision in

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Venegas or the Ninth Circuit’s decision in Brewster applies to this issue. The County Defendants,

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however, ignore these conflicting decisions in their moving papers and instead simply urge the Court

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to adopt the reasoning from Venegas. Dkt. No. 74 at 5-6. In his opposition, Dinius points out that

function at issue.” Dkt. No. 76 at 5 (quoting Brewster, 275 F.3d at 806). The County Defendants do

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whether the Sheriff was acting for the State or the County “depends on an analysis of the precise

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UNITED STATES DISTRICT COURT

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not dispute this in their reply and acknowledge that “a court reviewing a claim of Eleventh

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Amendment immunity must independently evaluate each discrete scenario presented to it to

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determine whether the immunity is available to the Sheriff claiming it.” Dkt. No. 77 at 2. The Court

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agrees that a proper analysis of this question would require it to evaluate the Sheriff’s specific

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functions in this particular case. Since the County Defendant’s moving papers did not include a

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specific analysis of the Sheriff’s functions which are at issue in this case — and instead essentially

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argued that the Court should follow the ruling from Venegas — the Court declines to grant their

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motion to dismiss, particularly because there are conflicting decisions on whether Venegas or

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Brewster is the controlling law in the Ninth Circuit. Accordingly, the motion to dismiss is DENIED

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on this ground, and Dinius’s claims against Sheriff Mitchell and Lake County may move forward.

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2. Prosecutorial Immunity

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Next, Defendant John Hopkins (Lake County’s former District Attorney who prosecuted

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Dinius in the underlying criminal matter) argues that he is entitled to absolute prosecutorial

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immunity for all claims against him. Dinius concedes that Hopkins is entitled to absolute immunity

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for any conduct that was “intimately associated with the judicial phase of the criminal process.”

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Dkt. No. 76 at 6 (citing Imbler v.Pachtman, 424 U.S. 409, 430 (1976)). But, as Dinius correctly

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points out, when prosecutors act as investigators, they do not have absolute immunity. See Van de

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Kamp v. Goldstein, 555 U.S. 335, 342 (2009) (“The Court made clear that absolute immunity may

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not apply when a prosecutor is not acting as ‘an officer of the court,’ but is instead engaged in other

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tasks, say, investigative or administrative tasks”); Buckley v. Fitzsimmons, 509 U.S. 259, 273-74

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(1993) (explaining that when “a prosecutor performs the investigative functions normally performed

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by a detective or police officer,” he is only entitled to qualified immunity rather than absolute

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immunity).

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The issue is therefore whether Dinius has alleged that Hopkins acted improperly in his role
as an officer of the court or while performing investigative functions. Hopkins argues that he is

in the underlying investigation. The SAC, however, asserts the following: “Under a non-binding

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For the Northern District of California

entitled to absolute immunity because Dinius’s SAC never alleges that he was personally involved

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UNITED STATES DISTRICT COURT

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agreement that LCSO could call on LCDAO2 for critical incident investigations help, defendant

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Mitchell immediately asked for investigative assistance from LCDAO after the Collision. The

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morning following the Collision at least one LCDAO investigator met with defendant Ostini at the

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LCSO marina facility to inspect and to discuss the two impounded boats involved in the Collision.”

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SAC ¶ 29. Even though Dinius does not specifically identify Hopkins as the prosecutor in charge of

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the investigation, the Court must construe all allegations in a light most favorable to Dinius at this

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stage of the proceedings. See Twombly, 550 U.S. at 550. Because Hopkins was in charge of the

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Lake County District Attorneys’ Office at the time of the investigation, the Court finds that Dinius’s

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SAC sufficiently alleges that he is complaining about Hopkins’ investigatory conduct. This is

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actionable and the motion to dismiss on this ground is DENIED.

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3. Section 1983 Brady Claim

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Dinius’s first Section 1983 claim alleges that each of the Defendants violated his

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constitutional rights under Brady by failing to disclose exculpatory evidence. The elements of a

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valid Brady claim are: (1) the prosecution must suppress or withhold evidence, (2) which is

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The LCDAO is the Lake County District Attorneys’ Office.
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favorable, and (3) material to the defense. Moore v. Illinois, 408 U.S. 786, 794-95 (1972). The

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County Defendants argue that Dinius cannot establish any of these elements. The Court, however,

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limits its analysis to only the third prong of materiality because it is dispositive to this entire issue.

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According to the County Defendants, the test for materiality is “whether it is reasonably

jury would have reached a different verdict more favorable to the defendant if the evidence in

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question had not been suppressed.” Dkt. No. 74 at 8 (citing Giglio v. United States, 405 U.S. 150

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(1971)). Because Dinius was eventually acquitted at trial, the County Defendants argue that he

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cannot establish that any withheld evidence was material. Dinius, on the other hand, contends that

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the “test of Brady materiality is ‘whether prejudice must have ensued.’” Dkt. No. 76 at 8 (quoting

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Strickler v. Greene, 527 U.S. 263 (1999)). Dinius explains that there is a Brady violation “if there is

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For the Northern District of California

likely that the evidence would have affected the outcome of trial, or, in other words, whether the

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UNITED STATES DISTRICT COURT

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a reasonable probability that, had the evidence been disclosed to the defense, the result of the

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proceeding would have been different.” Id. (quoting United States v. Bagley, 473 U.S. 667, 682

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(1985)). Thus, the issue before the Court is whether an individual who was acquitted at trial — like

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Dinius — may pursue a Section 1983 claim under Brady.

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This exact question was recently addressed for the first time by the Ninth Circuit. A split

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panel initially agreed with the County Defendants’ position, but that opinion was withdrawn and

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superseded. See Smith v. Almada, 623 F.3d 1078 (9th Cir. 2010), withdrawn and superseded by 640

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F.3d 931 (9th Cir. 2011). In the superseding opinion, the Almada Court declined to reach a decision

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on the issue. 640 F.3d at 940-41. Nonetheless, each of the judges provided their view. Judge Gwin

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explained in detail why a criminal defendant who is ultimately acquitted should not be able to

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pursue a Brady claim. Id. at 941-45 (“In sum, allowing Brady-based § 1983 claims without a

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conviction is not compelled by our circuit’s case law, conflicts with other circuits’ case law and the

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purpose of Brady, would render Brady’s materiality standard significantly less workable, and lacks a

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limiting principle.”). Judge Gould, in his own concurrence, provided that he was personally inclined

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to follow Judge Gwin and other Circuits that had addressed this particular question, but, at the

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request of his colleagues, would not rule on the issue because it was not necessary for the purposes

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of the decision in Almada. Id. at 940-41. Lastly, Judge Nelson dissented and strongly disagreed

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with Judge Gwin’s position that a conviction should be a prerequisite to a Brady claim under Section

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1983. Id. at 945-48.

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After Almada, the Ninth Circuit issued an unpublished decision that addressed the same

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topic.3 In Puccetti v. Spencer, the Ninth Circuit adopted the position of Judge Gwin and Judge

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Gould and found as follows:

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UNITED STATES DISTRICT COURT

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The district court correctly reasoned that because the plaintiffs’ criminal charges were
dismissed, the plaintiffs cannot show that any suppressed evidence could have
produced a different result at trial. See Smith, 640 F.3d at 939. Our sister circuits
have adopted identical reasoning in denying Brady claims when the plaintiff was
never convicted. See Morgan v. Gertz, 166 F.3d 1307, 1310 (10th Cir.1999); Flores
v. Satz, 137 F.3d 1275, 1278 (11th Cir. 1998); McCune v. City of Grand Rapids, 842
F.2d 903, 907 (6th Cir. 1988). We find this reasoning persuasive and affirm the
district court’s dismissal of plaintiffs’ Brady claim.

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2011 WL 6292200, at *1 (9th Cir. Dec. 16, 2011). Because the Court is mandated to apply Ninth

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Circuit law to this case, and it appears that this Circuit will likely find that a conviction is necessary

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for an individual to have a viable Brady claim — similar to every other Circuit that has examined

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the this question — this Court finds in favor of the County Defendants on this particular issue.

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Accordingly, Dinius’s first Section 1983 claim under Brady is DISMISSED WITH PREJUDICE

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since he was acquitted in the underlying criminal matter.4

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Pursuant to Federal Rules of Appellate Procedure 32.1 and 36-3, unpublished decisions
issued by the Ninth Circuit after January 1, 2007 may be cited even though they are not precedent.
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The district court in Gutierrez v. Solano also addressed this issue after Puccetti and
Almada. 2012 WL 123540, at *5 (C.D. Cal. Jan. 17, 2012). Gutierrez found Judge Nelson’s
dissenting opinion in Almada persuasive and held that the plaintiff could pursue his Section 1983
Brady claim even though he had not been convicted. Id. at *5-6. The Court agrees with some of the
rationale from Gutierrez, including that “criminal trial proceedings often entail similar liberty
deprivations [to convictions], from loss of one’s employment, good name, and life savings, to
continued custody during trial.” Id. at *6. Nonetheless, this Court is cognizant that it should not
create new remedies under federal law; rather, it should enforce the law of the Ninth Circuit, which
appears to be inclined to dismiss any Brady claims from defendants who were previously acquitted.
It is up to the Ninth Circuit, and not this Court, to expand the protections of Brady if the Circuit
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4. Section 1983 Devereaux Claim

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In his second claim, Dinius alleges that certain Defendants violated his constitutional right to
be free from criminal charges on the basis of deliberately fabricated evidence by the government.

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As explained in Devereaux v. Abby, Dinius can recover under Section 1983 for this constitutional

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violation if he establishes at least one of the following: “(1) Defendants continued their investigation

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of [him] despite the fact that they knew or should have know that he was innocent; or (2) Defendants

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used investigative techniques that were so coercive and abusive that they knew or should have

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known that those techniques would yield false information.” 263 F.3d 1070, 1076 (9th Cir. 2001).

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Defendants Dennis Ostini (supervisor of the LCSO’s marine patrol) and Hopkins move to dismiss

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this claim, arguing that Dinius failed to plead sufficient facts to establish a cognizable Devereaux

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violation.

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UNITED STATES DISTRICT COURT

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The Court disagrees with Hopkins and Ostini’s position. Hopkins is alleged to have been

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involved in the investigation of the accident, permitting him to learn that Dinius was merely a guest

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on the sailboat, that two neutral onshore witnesses observed that the sailboat’s navigation lights

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were lit at the time of the accident, and that Perdock — who had been drinking — was navigating

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his powerboat at a reckless speed when it collided with the sailboat. SAC ¶¶ 22, 24, 28, and 29.

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Ostini, who was the LCSO Sergeant in charge of the accident investigation, is also alleged to have

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known some of this information. SAC ¶¶ 12, 13, 22, and 23. Based on these claims, Dinius has

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sufficiently alleged that Hopkins and Ostini knew that he was innocent and yet continued their

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investigation. Hopkins and Ostini’s arguments to the contrary, which go to the merits of Dinius’s

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claim, are misplaced for a motion to dismiss. Moreover, Ostini is alleged to have purposely

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promoted that Dinius himself did not see that the sailboat’s navigation lights were lit, which was

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misleading because it was impossible for Dinius to have been able to see the navigation lights from

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inside the sailboat. SAC ¶ 37. This allegation meets the second prong of a Devereaux claim since

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Ostini’s unsophisticated investigation techniques may be considered to have been so coercive and

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believes it is warranted.
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abusive that he should have known that they may yield false information.5 Thus, Hopkins and

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Ostini’s motions to dismiss the Devereaux claim are DENIED.

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5. Section 1983 Youngblood Claim

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Dinius’s third claim asserts that certain Defendants, including Lake County and Ostini,

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violated his due process rights to governmental preservation of evidence potentially useful to the

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accused, as that specific constitutional right is outlined in cases such as Arizona v. Youngblood, 488

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U.S. 51 (1988). The parameters of a Youngblood claim under Section 1983 were explained by the

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United States v. Estrada court as follows:

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UNITED STATES DISTRICT COURT

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In California v. Trombetta, 467 U.S. 479, 489 (1984), the Supreme Court held that
for destruction or loss of evidence to constitute a constitutional violation, “[the]
evidence must both possess an exculpatory value that was apparent before the
evidence was destroyed, and be of such a nature that the defendant would be unable
to obtain comparable evidence by other reasonably available means.” In Arizona v.
Youngblood, 488 U.S. 51, 58 (1988), the Court further held that where lost or
destroyed evidence is deemed to be only potentially exculpatory, as opposed to
apparently exculpatory, the defendant must show that the evidence was destroyed in
bad faith.

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453 F.3d 1208, 1212 (9th Cir. 2006). Pursuant to the elements outlined in these cases, Dinius

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alleges that after the accident, a LCSO Sergeant attempted to administer a portable Preliminary

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Alcohol Screening test (i.e., breathalyzer) on Perdock to determine his level of intoxication. SAC ¶

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24. The test, however, was never conducted because Perdock refused to take it and Ostini ordered

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the LCSO Sergeant to not administer it. Id. Dinius claims that the breathalyzer test would have led

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to exculpatory evidence — that Perdock was intoxicated at the time of the accident — which could

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not have been obtained in other ways and was not preserved in bad faith. SAC ¶ 41.

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One of the arguments raised by each of the Defendants against Dinius’s claim is that the

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government is not constitutionally required under Youngblood to conduct criminal investigations in

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a certain manner or to perform a particular test. The United States Supreme Court discussed this in

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Ostini also argues that he is immune from any liability based on his testimony at the
preliminary hearing. Dinius’s allegations, however, encompass more than just Ostini’s testimony at
a judicial proceeding. See SAC ¶ 37 (“Defendant Ostini purposely reported and promoted, and
testified at the Preliminary Hearing to, the highly deceptive/false misinformation that Dinius did not
see the Sailboat’s navigation lights on before or at the time of Collision . . . .”) (emphasis added).
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Youngblood, noting:
If the court meant by this statement that the Due Process Clause is violated when the
police fail to use a particular investigatory tool, we strongly disagree. The situation
here is no different than a prosecution for drunken driving that rests on police
observation alone; the defendant is free to argue to the finder of fact that a
breathalyzer test might have been exculpatory, but the police do not have a
constitutional duty to perform any particular tests.

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to this argument. Dinius, however, does address this issue in his opposition to Perdock’s motion to

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dismiss. There, he concedes that he is not contending that “there is a constitutional right requiring

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law enforcement to conduct certain types of tests over others.” Dkt. No. 69 at 14. Dinius goes on to

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explain that he still has a viable Youngblood claim because although the LCSO was not required to

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administer a breathalyzer test on Perdock, since the test was initiated and then purposely thwarted by

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488 U.S. at 58-59. Dinius’s opposition to the County Defendants’ motion does not directly respond

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Perdock and Ostini, his constitutional right against the preservation of evidence was violated. Id.

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The Court disagrees. Dinius’s Youngblood rights protect him from the situation where the

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government obtains evidence and then fails to preserve it even though its exculpatory value was

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apparent. Here, while evidence of Perdock’s intoxication was available if a prompt breathalyzer test

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was administered, this evidence was never actually obtained. Without such evidence, the

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prerequisite of a Youngblood claim is missing since Lake County and Ostini could not destroy or fail

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to preserve evidence that had not yet come into existence.6 Accordingly, Dinius’s attempt to

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pigeonhole Lake County and Ostini’s conduct into a Youngblood claim fails as a matter of law.

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These allegations may help Dinius establish his other claims — such as a conspiracy on the part of

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Defendants to blame him for the accident — but they do not amount to a Youngblood violation. His

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claim is therefore DISMISSED WITH PREJUDICE.

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6. Section 1983 Malicious Prosecution Claim

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With respect to Dinius’s fourth claim for malicious prosecution under Section 1983, the

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County Defendants argue that the claim is invalid for several reasons, including that Dinius cannot

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As in Youngblood, Dinius is still free to argue that Perdock was intoxicated at the time of
the accident and use his refusal to take the breathalyzer test for evidentiary support.
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establish that he was prosecuted without probable cause. The Court does not address these

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arguments because, as explained in section III(C)(4) of this order, the claim fails for other reasons

3

and is therefore DISMISSED.

4

7. Section 1983 Conspiracy Claim

5

In his fifth claim, Dinius asserts that Defendants are liable for conspiracy under Section

6

1983. In their motion to dismiss, the County Defendants fail to analyze this claim and instead argue

7

that Dinius’s Section 1985 claim should be dismissed. Because Dinius has not pled a Section 1985

8

claim, this argument is misplaced and the County Defendants’ motion to dismiss the claim is

9

DENIED.7
8. IIED Claim

11

Dinius’s sixth claim for IIED asserts that he suffered emotional distress due to the

12
For the Northern District of California

UNITED STATES DISTRICT COURT

10

outrageous conduct exhibited by each of the individual Defendants. To plead a cognizable claim for

13

IIED, a plaintiff must allege (1) outrageous conduct by the defendant; (2) an intention by the

14

defendant to cause, or reckless disregard of the probability of causing, emotional distress; (3) severe

15

emotional distress; and (4) an actual and proximate causal link between the tortious conduct and the

16

emotional distress. Nally v. Grace Cnty. Church of the Valley, 47 Cal.3d 278, 301 (1988).

17

The County Defendants argue that they cannot be liable for this state law tort under the

18

immunity provisions of California Government Code §§ 815.2 and 821.6.8 “Pursuant to these

19
20
21
22
23
24
25
26
27
28

7

Nonetheless, as the Court explains when analyzing Perdock’s motion to dismiss, Dinius’s
Section 1983 conspiracy claim is only actionable with respect to his Devereaux claim since it is the
only Section 1983 claim that is not being dismissed. Thus, Dinius has adequately pled a conspiracy
claim predicated on only his Devereaux claim against Ostini and Hopkins.
8

Section 815.2 provides that “(a) A public entity is liable for injury proximately caused by
an act or omission of an employee of the public entity within the scope of his employment if the act
or omission would, apart from this section, have given rise to a cause of action against that employee
or his personal representative [;] (b) Except as otherwise provided by statute, a public entity is not
liable for an injury resulting from an act or omission of an employee of the public entity where the
employee is immune from liability.” Section 821.6 provides that a “public employee is not liable for
injury caused by his instituting or prosecuting any judicial or administrative proceeding within the
scope of his employment, even if he acts maliciously and without probable cause.”
12

immune from tort liability for any acts done by the employees in preparation for formal judicial or

3

administrative proceedings, including investigation of alleged wrongdoing, and for any acts done to

4

institute and prosecute such formal proceedings.” Hansen v. Cal. Dept. of Corrs. & Rehab., 171

5

Cal.App.4th 1537, 1547 (2008).9 Dinius first points out that he is only asserting an IIED claim

6

against the individual County Defendants and not Lake County. Accordingly, Section 815.2 does

7

not apply here. As for Section 821.6, Dinius argues that this immunity only provides a defense

8

against malicious prosecution claims. The California Supreme Court corroborated this position in

9

Sullivan v. County of Los Angeles when it held that “the history of section 821.6 demonstrates that

10

the Legislature intended the section to protect public employees from liability only for malicious

11

prosecution . . . .” 12 Cal.3d 710, 719 (1984). This holding, however, has been distinguished by

12
For the Northern District of California

sections, public employees, acting within the scope of their employment, and the public entity, are

2

UNITED STATES DISTRICT COURT

1

numerous California Court of Appeal decisions which find that Section 821.6 applies to claims other

13

than malicious prosecution, including IIED claims. See, e.g., Randle v. City and Cnty. of San

14

Francisco, 186 Cal.App.3d 449, 456 (1986); Javor v. Taggart, 98 Cal.App.4th 795, 808-09 (2002).

15

The Court agrees with the California Supreme Court’s decision in Sullivan and finds that

16

Section 821.6 only applies to claims for malicious prosecution. A recent law review article has

17

examined the inconsistent positions taken by California courts on this issue and explained why the

18

better approach — which this Court adopts — is to interpret Section 821.6 as only immunizing

19

public employees’ conduct with respect to claims stemming from the institution or prosecution of a

20

judicial proceeding. See Frank J. Menetrez, Lawless Law Enforcement: The Judicial Invention of

21

Absolute Immunity for Police and Prosecutors in California, 49 Santa Clara L. Rev. 393 (2009)

22

(summarizing the case law with respect to Section 821.6 and explaining how the immunity should be

23

applied in the future). As explained in the article, interpreting Section 821.6 to apply to all tort

24

claims would create “a regime of lawless law enforcement in California” by giving the “state’s law

25
26
27
28

9

Section 821.6 “applies to police officers as well as public prosecutors since both are public
employees within the meaning of the Government Code.” Randle v. City and Cnty. of San
Francisco, 186 Cal.App.3d 449, 455 (1986).
13

1

enforcement authorities a license to kill or to do any other damage that strikes their fancy, even

2

maliciously and without probable cause, as long as they do it in the course of investigating crime.”

3

Id. at 426; see also id. at 424 (“Thus, here again the judgment of the California legislature seems to

4

have been more sensible than that of the Court of Appeal: . . . law enforcement personnel generally,

5

should vigorously pursue their occupations, but they must exercise reasonable care when they do so

6

or else face liability for any harm they cause.”). For these reasons, the Court is not persuaded by the

7

County Defendants’ argument and follows Sullivan to find that Section 821.6 does not automatically

8

immunize County Defendants’ investigatory conduct against Dinius’s IIED claim.10

9

County Defendants next argue that they cannot be liable for IIED because their alleged

SAC only alleges that Perdock made false statements to the government for his own self-

12
For the Northern District of California

wrongful conduct was not directed specifically at Dinius. According to the County Defendants, the

11
UNITED STATES DISTRICT COURT

10

preservation and the “investigation and prosecution that followed, however flawed or deficient

13

Plaintiff may believe them to be, were simply natural consequences of the Collision.” Dkt. No. 74 at

14

17. This argument ignores that Dinius’s IIED claim incorporates all of his allegations under federal

15

law (i.e., conspiracy, corruption, fabrication of false evidence), which point to at least a reckless

16

disregard on the part of the County Defendants to cause Dinius to suffer emotional distress.11

17

Lastly, the County Defendants contend that Dinius’s IIED claim should be dismissed

18
19
20
21
22
23
24
25
26
27
28

10

This result does not mean that future plaintiffs may plead around Section 821.6 immunity
by simply alleging claims other than malicious prosecution. “If it did, then the immunity would
indeed provide little meaningful protection, because plaintiffs would always be able to recast their
complaints in terms of defamation, [IIED], interference with business relations, or the like.”
Menetrez, 49 Santa Clara L. Rev. at 419. But this would not be possible since malicious prosecution
is “the only tort action that can be based on the institution or prosecution of a judicial or
administrative proceeding.” Id. Moreover, under this proposed framework for interpreting the
immunity, potential plaintiffs would still have recourse for any harm caused independently of any
decision to prosecute. Id. at 425. That is the case here since Dinius alleges in his second claim that
the County Defendants caused him severe emotional distress based on his Devereaux claim that they
fabricated evidence (and not based on the fact they instituted judicial proceedings against him).
11

The County Defendants’ argument that Dinius’s IIED claim fails because it is based on
the same facts as his other claims does not warrant discussion since the Court has not dismissed
some of those claims against some of the County Defendants.
14

1

because he failed to comply with the provisions of the Government Tort Claims Act (GTCA),

2

codified under California Government Code §§ 900 et. seq. See Wood v. Riverside Gen. Hosp., 25

3

Cal.App.4th 1113, 1119 (1994) (“The timely filing of a claim [under the GTCA] is an essential

4

element of a cause of action against a public entity and failure to allege compliance with the claims

5

statute renders the complaint subject to general demurrer”). Dinius, however, has alleged that he has

6

complied with the GTCA and that is sufficient at this stage of the proceedings. SAC ¶ 21. For the

7

foregoing reasons, the County Defendants’ motion to dismiss Dinius’s IIED claim is DENIED.

8

B. Lake County, LCSO, and Employees’ Anti-SLAPP Motion

As explained earlier, the legal standard for such a motion requires the Court, as part of the second

11

step of its analysis, to determine whether Dinius has demonstrated a probability of prevailing on the

12
For the Northern District of California

The anti-SLAPP motion only challenges Dinius’s IIED claim against Defendant Hopkins.

10

UNITED STATES DISTRICT COURT

9

merits of his IIED claim against Hopkins. See Kearney, 590 F.3d at 648. In contending that Dinius

13

cannot prevail on such a claim, Hopkins bases his argument on the assumption that he is only

14

alleged to have caused Dinius emotional distress stemming from a press release that Hopkins issued

15

during jury selection in the underlying criminal trial. Dkt. No. 74 at 18 (“Plaintiff alleges a claim for

16

intentional infliction of emotional distress against Hopkins based on Hopkins’s issuance of a ‘July

17

17, 2009 press release’ . . . ”). But, as the Court explained earlier and Dinius points out in his

18

opposition, the IIED claim against Hopkins is based on all of his unlawful conduct, including other

19

allegations besides the press release such as the fact that Hopkins was personally involved in the

20

investigation of Dinius and is therefore not immune from liability with respect to Dinius’s

21

Devereaux claims. In other words, Hopkins may be liable for IIED if his alleged conduct outlined in

22

the Section 1983 Devereaux claim proximately caused Dinius’s severe emotional distress.

23

Hopkins’s arguments in the anti-SLAPP motion are therefore misplaced and the motion is DENIED.

24

C. Perdock’s Motion to Dismiss

25

Perdock (former Lake County Chief Deputy Sheriff who was driving the powerboat involved

26

in the accident) moves to dismiss each of Dinius’s seven claims against him. Before discussing each

27

of these claims in detail, the Court notes that Perdock’s main argument — that Dinius’s entire

28
15

1

Section 1983 claim must be dismissed because such claims cannot be based on the Fourteenth

2

Amendment’s substantive due process clause — is erroneous. With this argument, Perdock is

3

conflating case law regarding malicious prosecution claims under Section 1983 with case law

4

regarding Section 1983 claims based on other federal rights. Essentially, a Section 1983 claim only

5

imposes two proof requirements on a plaintiff: “(1) that a person acting under color of state law

6

committed the conduct at issue, and (2) that the conduct deprived the claimant of some right,

7

privilege, or immunity protected by the Constitution or laws of the United States.” Leer v. Murphy,

8

844 F.2d 628, 632-33 (9th Cir. 1988). In the Ninth Circuit, a plaintiff is permitted to bring Section

9

1983 claims in the same action based on both malicious prosecution as well as any other federal

(“In this circuit, nothing prevents [the plaintiff] from bringing both malicious prosecution and direct

12
For the Northern District of California

rights that were allegedly violated. Awabdy v. City of Adelanto, 368 F.3d 1062, 1072 (9th Cir. 2004)

11
UNITED STATES DISTRICT COURT

10

First and Fourteenth Amendment claims in the same § 1983 action.”). Accordingly, the Court

13

examines each of Dinius’s Section 1983 claims as stand-alone claims. And, as explained in further

14

detail below, the argument that none of these Section 1983 claims may be based on the substantive

15

due process clause does not apply universally and must be addressed separately for each claim.

16

1. Section 1983 Brady Claim

17

As explained in section III(A)(3) of this order, Dinius cannot state a Brady claim under

18

Section 1983 because he was never convicted in the underlying criminal matter. This claim is

19

therefore DISMISSED WITH PREJUDICE.

20

2. Section 1983 Devereaux Claim

21

Perdock’s sole basis in moving to dismiss Dinius’s second claim is that Section 1983 liability

22

cannot attach to violations of substantive due process rights. See Dkt. No. 68-1 at 16 (“Thus,

23

plaintiff has not alleged any procedural due-process violation arising out of the allegedly fabricated

24

and false evidence. At most this is an allegation of a substantive-due-process violation, for which no

25

§ 1983 liability for malicious prosecution attaches.”). This misplaced argument again shows that

26

Perdock ignores the fact that Dinius is alleging both a stand-alone Section 1983 Devereaux claim in

27

addition to a Section 1983 malicious prosecution claim. While, as explained in the next section,

28
16

there is case law that supports Perdock’s argument that any Section 1983 malicious prosecution

2

claim cannot be based on substantive due process, Perdock has not provided any persuasive

3

authority that imposes the same requirement to Dinius’s Devereaux claim.12 Rather, courts have

4

found that individuals may recover under Section 1983 if their due process rights were violated

5

based on the fabrication of evidence by a government officer acting in an investigative capacity.

6

See, e.g., Devereaux, 263 F.3d at 1070 (“we are persuaded that there is a clearly established

7

constitutional due process right not to be subjected to criminal charges on the basis of false evidence

8

that was deliberately fabricated by the government”); Lacy v. Cnty. of Maricopa, 631 F.Supp.2d

9

1197, 1206-09 (D. Arizona 2008) (finding that the plaintiff’s Section 1983 claim withstands

10

summary judgment because there was a triable issue as to whether the defendant recklessly

11

fabricated evidence). Thus, Perdock’s motion to dismiss Dinius’s Devereaux claim is DENIED.

12
For the Northern District of California

UNITED STATES DISTRICT COURT

1

3. Section 1983 Youngblood Claim

13

As explained in section III(A)(5) of this order, Dinius cannot state a Youngblood claim under

14

Section 1983 because there was no failure to preserve evidence since a breathalyzer test was never

15

administered. Dinius’s Youngblood claim against Perdock is therefore DISMISSED WITH

16

PREJUDICE.

17

4. Section 1983 Malicious Prosecution Claim

18

In Awabdy, the Ninth Circuit explained that a Section 1983 malicious prosecution requires a

19

plaintiff to establish that “the defendants prosecuted him with malice and without probable cause,

20

and that they did so for the purpose of denying him equal protection or another specific

21

constitutional right.” 368 F.3d at 1066 (citations omitted and emphasis added). Pursuant to this,

22
12

23
24
25
26
27
28

Perdock cites Galbraith v. County of Santa Clara, 307 F.3d 1119, 1126-27 (9th Cir.
2002), to support his position. In Galbraith, the plaintiff brought a Section 1983 action — under the
Fourth, Fifth, and Fourteenth Amendments — against the county, the county coroner, and police
officers for falsifying an autopsy report which led to his false arrest and prosecution. Id at 1121-22.
The Ninth Circuit agreed with the district court and held that the Fourth Amendment’s prohibition
against pretrial deprivations governed the plaintiff’s case rather than the Fourteenth Amendment. Id.
at 1127. This ruling, however, does not apply here because Dinius is not alleging a false arrest claim
under the Fourth Amendment; rather his claim stems from Defendants fabricating evidence to
violate his other constitutional rights.
17

1

Dinius alleges in his fourth claim that each of the Defendants violated his substantive due process

2

rights to be free from criminal charges brought in bad faith and without probable cause. SAC ¶ 44.

3

Perdock, however, argues that a Section 1983 malicious prosecution claim cannot stem from the

4

violation of substantive due process rights. This is correct. In analyzing the United States Supreme

5

Court decision in Albright v. Oliver, 510 U.S. 266 (1994), Awabdy held that although Section 1983

6

malicious prosecution claims can be based on constitutional violations outside of the Fourth

7

Amendment, they cannot be based on a violation of the substantive due process clause:

8
9
10

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

The principle that Albright establishes is that no substantive due process right exists
under the Fourteenth Amendment to be free from prosecution without probable cause.
In rejecting Albright's reliance on substantive due process as the basis for his
malicious prosecution claim, the plurality explained: “Where a particular Amendment
‘provides an explicit textual source of constitutional protection’ against a particular
sort of government behavior, ‘that Amendment’, not the more generalized notion of
‘substantive due process,’ must be the guide for analyzing these claims.” In Albright,
the plurality suggested that the plaintiff in that case might have set forth a proper §
1983 claim had he argued that the state's pretrial deprivations of his personal liberty
violated the Fourth Amendment.

13
14

368 F.3d at 1069 (internal citations omitted). This view has been reaffirmed by several district

15

courts. In Hill v. Clovis Police Department, the Court dismissed the plaintiff’s Section 1983

16

malicious prosecution claim — which, just like Dinius’s SAC, did not include a Fourth Amendment

17

claim — finding that while the claim may be based on a constitutional right outside of the Fourth

18

Amendment, “there is no Fourteenth Amendment substantive due process right to be free from

19

prosecution without probable cause.” 2011 WL 5828224, at *2-4 (E.D. Cal. Nov. 18, 2011) (further

20

explaining that if the plaintiff “is attempting to rely on substantive due process, then his reliance is

21

misplaced because there is no substantive due process right to be free from malicious prosecution”);

22

see also Bulfer v. Dobbins, 2011 WL 530039, at *12 (S.D. Cal. Feb. 7, 2011) (holding that even if

23

the defendants fabricated evidence against the plaintiff, “that fact alone would not suffice to make

24

out a malicious prosecution claim under § 1983” because Awabdy does not permit such claims to be

25

based on the substantive due process clause). Dinius concedes that his Section 1983 malicious

26

prosecution claim is based entirely on his substantive due process rights and does not offer any

27

persuasive arguments to distinguish the above cases. See, e.g., Dkt. No. 69 at 18 (“Plaintiff does not

28
18

1

claim that his § 1983 Fourteenth Amendment substantive due process claim rises from lack of

2

probable cause alone.”) (emphasis added); Dkt. No. 70 at 9 (“Rather, Dinius’ § Fourth (and in part

3

his Fifth) Cause of Action is founded on the Fourteenth Amendment substantive due process right

4

embracing allegations and proof of three essential elements . . . .”) (emphasis added). The Court

5

follows the decisions cited above and finds that Dinius’s Section 1983 malicious prosecution claim,

6

based on substantive due process rights, is not actionable. It is therefore DISMISSED.13

7

5. Section 1983 Conspiracy Claim

8

In his fifth claim, Dinius asserts a Section 1983 claim based on a conspiracy to violate his

9

constitutional rights between each individual Defendant as well as another conspiracy between Lake

conducted an investigation of the accident). The Ninth Circuit outlined the elements of a conspiracy

12
For the Northern District of California

County and Charles Slabaugh (a Sergeant from the Sacramento County Sheriff’s Department who

11
UNITED STATES DISTRICT COURT

10

claim in Crowe v. County of San Diego as follows:

13
14
15
16

To establish liability for a conspiracy in a § 1983 case, a plaintiff must “demonstrate
the existence of an agreement or meeting of the minds” to violate constitutional
rights. Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1301 (9th Cir.
1999) (internal quotation marks omitted). “Such an agreement need not be overt, and
may be inferred on the basis of circumstantial evidence such as the actions of the
defendants.” Id. “To be liable, each participant in the conspiracy need not know the
exact details of the plan, but each participant must at least share the common
objective of the conspiracy.” United Steelworkers of Am. v. Phelps Dodge Corp., 865

17
18
19
20
21
22
23
24
25
26
27

13

As explained in the Court’s previous orders with respect to Defendants’ motions to
dismiss, the law on Section 1983 malicious prosecution claims is complex and there does appear to
be a disconnect in some cases from this Circuit where it is not clear whether the holding of the case
applies to all Section 1983 claims or only Section 1983 malicious prosecution claims. This Court
interprets the Ninth Circuit to permit Section 1983 claims when a defendant acting under color of
state law commits conduct that deprives a plaintiff of a constitutional right. See Leer, 844 F.2d at
632-33 (9th Cir. 1988). Section 1983 malicious prosecution claims, however, have a stricter
standard. One of the reasons is because a malicious prosecution claim is usually not cognizable
under Section 1983, unless one important exception applies: “malicious prosecution constitutes a
deprivation of liberty without due process of law — and is a federal constitutional tort — when it is
conducted with the intent to deprive a person of equal protection of the laws or is otherwise intended
to subject a person to a denial of constitutional rights.” Veth Mam v. City of Fullerton, 2012 WL
443840, at *2 (C.D. Cal. Feb. 13, 2002). And, in interpreting this stricter standard, the Ninth Circuit
held in Awabdy that a Section 1983 malicious prosecution claim cannot be based on the substantive
due process clause. 368 F.3d at 1069.

28
19

1

F.2d 1539, 1541 (9th Cir. 1989) (en banc).

2

608 F.3d 406, 440 (9th Cir. 2010). Accordingly, without a deprivation of a constitutional right,

3

conspiracy allegations do not give rise to a Section 1983 conspiracy claim. See Dooley v. Reiss, 736

4

F.2d 1392, 1395 (9th Cir. 1984) (“The absence of an actual deprivation implies that plaintiffs also

5

failed to state a section 1983 claim based on the alleged conspiracy to conceal the reports.”); Cefalu

6

v. Vill. of Elk Grove, 211 F.3d 416, 423 (7th Cir. 2000) (finding that because the plaintiffs did not

7

suffer a constitutional injury, this foreclosed any potential relief they could obtain on their

8

conspiracy claim).

9

Dinius’s only remaining Section 1983 claim is based on the violation of his Devereaux

Defendants to violate these rights. The Court disagrees since the sum of Dinius’s allegations

12
For the Northern District of California

rights. Perdock argues that Dinius has not sufficiently pled a conspiracy amongst him and the other

11
UNITED STATES DISTRICT COURT

10

adequately plead that Perdock, Slabaugh, Ostini, and Hopkins reached an agreement to fabricate

13

evidence so that Perdock would not be liable for his involvement in the accident and that blame

14

would be shifted to Dinius. See, e.g., SAC ¶¶ 37 and 49. Perdock’s motion on this ground is

15

therefore DENIED.

16

6. IIED Claim

17

Perdock next challenges Dinius’s IIED claim. Perdock argues that he cannot be liable for

18

this tort because his alleged wrongful conduct was not directed specifically at Dinius. According to

19

Perdock, the SAC only alleges that he made false statements to the government for his own self-

20

preservation and not to cause any injury to Dinius. This argument lacks merit. Dinius’s SAC, read

21

in a light most favorable to him, alleges that Perdock was attempting to both escape liability from

22

the accident as well as pushing for Dinius to be culpable. See, e.g., SAC ¶ 33 (“Perdock used his

23

position and influence as LCSO Chief Deputy to cause, urge, encourage, incite, and/or instigate the

24

foregoing failures to document material exculpatory evidence and/or the foregoing nondisclosures of

25

material exculpatory evidence”). Accordingly, Perdock’s motion to dismiss the IIED claim is

26
27
28
20

1

DENIED.14

2

7. State Law Malicious Prosecution Claim

3

In his seventh claim, Dinius asserts that Perdock and Slabaugh are liable for malicious

4

prosecution under California law. This tort requires a plaintiff to show (1) that the prior action was

5

commenced by or at the defendant’s direction and was terminated in the plaintiff’s favor; (2) the

6

action was brought without probable cause; and (3) the action was initiated with malice. Pattiz v.

7

Minye, 61 Cal.App.4th 822, 826 (1998). Perdock first argues that the decision of a judge or

8

magistrate to hold a criminal defendant to answer after a preliminary hearing is prima facie evidence

9

of probable cause. Dkt. No. 68-1 at 22 (citing Awabdy, 368 F.3d at 1067). But, as Awabdy pointed

prosecution was induced by fraud, corruption, perjury, fabricated evidence, or other wrongful

12
For the Northern District of California

out, a plaintiff may rebut this prima facie finding of probable cause “by showing that the criminal

11
UNITED STATES DISTRICT COURT

10

conduct undertaken in bad faith.” Id. Dinius has alleged just that: his prosecution was based on

13

Perdock fabricating evidence as well as other wrongful conduct. Perdock then argues that he cannot

14

be liable for malicious prosecution because he was not “actively instrumental in causing the

15

initiation of legal proceedings.” Dkt. No. 68-1 at 23. However, “[m]alicious prosecution actions

16

are not limited to suits against prosecutors but may be brought, as here, against other persons who

17

have wrongfully caused the charges to be filed.” Awabdy, 368 F.3d at 1066. In the SAC, Dinius

18

sufficiently pleads that Perdock maliciously lied about his speed, sobriety, and the navigation lights

19

so that Dinius would be charged in connection with the accident and that Perdock would escape

20

liability. This is actionable and Perdock’s motion to dismiss Dinius’s common law malicious

21

prosecution claim is DENIED.

22

D. Slabaugh’s Motion to Dismiss

23

Slabaugh also moves to dismiss each of Dinius’s claims against him.15 The Court first

24
25
26
27

14

Perdock’s argument that Dinius’s IIED claim fails because it is based on the same facts as
his other claims does not warrant discussion since the Court has not dismissed Dinius’s Devereaux
claim.
15

28

Dinius has not alleged a Youngblood claim against Slabaugh.
21

Section 1983 claims, which are discussed, along with his other claims, in detail below. The doctrine

3

of qualified immunity shields government officials performing discretionary functions from Section

4

1983 liability when “their conduct does not violate clearly established statutory or constitutional

5

rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

6

(1982); see also Malley v. Briggs, 475 U.S. 335, 341 (1986) (“As the qualified immunity defense has

7

evolved, it provides ample protection to all but the plainly incompetent or those who knowingly

8

violate the law.”). Slabaugh contends that he is entitled to qualified immunity because the SAC

9

does not contain any factual allegations to support that he knowingly violated the law or was plainly

10

incompetent. But this is incorrect. In the SAC, Dinius pleads numerous allegations supporting that

11

Slabaugh was incompetent in investigating and recommending two felony charges against him. See,

12
For the Northern District of California

summarily rejects the qualified immunity defense raised by Slabaugh with respect to Dinius’s

2

UNITED STATES DISTRICT COURT

1

e.g., SAC ¶¶ 29, 37, 45, and 49. At this stage of the proceedings — where the Court must accept all

13

of Dinius’s allegations as true and interpret them in a light most favorable to him — Slabaugh’s

14

qualified immunity defense is improperly raised. See Grose v. Caruso, 284 Fed.Appx. 279, 283 (6th

15

Cir. 2008) (“Dismissals on the basis of qualified immunity are generally made pursuant [to Rule] 56

16

summary judgment motions, not 12(b)(6) sufficiency of pleadings motions.”).16

17

1. Section 1983 Brady Claim

18

As explained in section III(A)(3) of this order, Dinius cannot state a Brady claim under

19

Section 1983 because he was never convicted in the underlying criminal matter. Slabaugh’s motion

20

to dismiss this claim is therefore GRANTED.

21

2. Section 1983 Devereaux Claim

22

The Court explained in section III(A)(4) of this order that a Devereaux claim requires Dinius

23

to allege that Slabaugh either continued his investigation even though he knew Dinius was innocent

24

or that he used coercive and abusive techniques that he knew or should have known would result in

25
26
27

16

Pursuant to Federal Rules of Appellate Procedure 28(f) and 32.1, unpublished opinions
issued after January 1, 2007 may be cited.

28
22

1

false information. As part of his argument that Dinius has not alleged any facts to support this

2

claim, Slabaugh assumes that Dinius is not contending that he used coercive or abusive investigative

3

techniques. Dkt No. 71 at 2 (“Plaintiff does not allege that Slabaugh used coercive or abusive

4

techniques.”). But this is not the case. The SAC asserts that Slabaugh had no experience in the

5

operation of sailboats, only spent two days on the investigation, did not interview important

6

witnesses (including the owner of the sailboat who would have confirmed that the navigation lights

7

were on at the time of the accident), mischaracterized the testimony from an onshore witness to

8

reflect that the navigation lights were not lit when the witness instead reported that he did not see the

9

sailboat, and turned a blind-eye towards Perdock as a suspect, particularly ignoring that he may have

sailboat. SAC ¶¶ 2, 29, and 37. Slabaugh, who the LCSO relied on to provide an independent

12
For the Northern District of California

been intoxicated and traveling at nearly 60 miles per hour when his powerboat collided with the

11
UNITED STATES DISTRICT COURT

10

investigation of the accident, recommended that Dinius should be charged with manslaughter.17

13

SAC ¶ 29. These claims sufficiently allege that Slabaugh should have known that his less than

14

thorough investigation may lead to false information.18 Slabaugh’s argument to the contrary is

15

misplaced since — similar to the County Defendants and Perdock’s motion — it goes to the merits

16

of the claim. The motion to dismiss the Devereaux claim is therefore DENIED.

17

3. Section 1983 Malicious Prosecution Claim

18

The Court explained in section III(C)(4) of this order that Dinius’s Section 1983 malicious

19

prosecution claim is not actionable because it is based on a violation of his substantive due process

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21
17

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23

One of the arguments raised by Slabaugh is that he had probable cause to recommend
Dinius’s prosecution for boating under the influence. Dinius’s Section 1983 claims, however, are
not based on the fact that he was charged with this misdemeanor. Rather, his claims stem from the
fact that he was initially prosecuted for the felony of manslaughter.

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18

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26
27
28

The Court notes that Dinius’s claim under the first prong of Devereaux appears to be
misplaced because even if Slabaugh knew that Dinius was innocent, he would still have been
required to continue the investigation since the LCSO specifically asked him to provide an
independent report regarding the accident. Nonetheless, the Court does not consider this because
Dinius has adequately pled that Slabaugh used coercive and abusive investigative techniques, which
satisfies the second prong of Devereaux and makes his claim actionable.
23

1

rights. Slabaugh’s motion to dismiss this claim is consequently GRANTED.

2

4. Section 1983 Conspiracy Claim

3

As explained earlier, Dinius’s Section 1983 conspiracy claim is based on a conspiracy

4

between each individual Defendant as well as a second conspiracy between Lake County and

5

Slabaugh to violate his constitutional rights. Because the Court has dismissed each of Dinius’s

6

Section 1983 claims besides the Devereaux claim (which was not alleged against Lake County)

7

Dinius cannot recover for the second conspiracy allegations involving the County. See Dooley, 736

8

F.2d at 1395 (“The absence of an actual deprivation implies that plaintiffs also failed to state a

9

section 1983 claim based on the alleged conspiracy to conceal the reports.”). With respect to the

claim against him. For the same reasons the Court found that these conspiracy claims were

12
For the Northern District of California

global conspiracy, Slabaugh argues that the SAC’s allegations do not adequately plead a conspiracy

11
UNITED STATES DISTRICT COURT

10

sufficient against Perdock, they are also sufficient here and Slabaugh’s motion to dismiss this

13

Section 1983 claim is DENIED.

14

5. State Law Claims

15

Slabaugh next attacks Dinius’s state law claims on several grounds. He first argues that he

16

has immunity against these claims pursuant to California Government Code § 821.6, or, in the

17

alternative, California Government Code § 820.2.19 These immunities, however, are only available

18

to public employees who are alleged to have acted within the scope of their employment. This is not

19

the case here since Dinius pleads that Slabaugh’s conduct, similar to the other Defendants, was

20

based on “[c]orrupt personal motives, rather than the pursuit of justice or legitimate activity within

21

the scope of their employment . . . .” SAC ¶ 1.20 There is also a question whether Slabaugh was

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23
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25
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28

19

Section 820.2 provides that “a public employee is not liable for an injury resulting from
his act or omission where the act or omission was the result of the exercise of the discretion vested
in him, whether or not such discretion be abused.”
20

Some of the motions to dismiss argue that Dinius has conceded that Defendants’ conduct
was within the course and scope of their employment. See Dkt. No. 76 at 23:2. This argument is not
well taken since it appears that Dinius simply made a grammatical error in his brief, a view that is
corroborated by the very next parenthetical that cites to Dinius’s allegation from the SAC — which
is controlling here — that the County Defendants were not acting within the scope of their
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1

acting within the scope of his employment since his alleged wrongful conduct was committed at a

2

time when he was a member of the Sacramento County Sheriff’s Department and allegedly only

3

investigating the accident on a volunteer basis pursuant to the LCSO’s request. SAC ¶ 11.

4

Slabaugh also argues that he is immune against any state law claims due to Civil Code §

5

47(b). This statute, commonly referred to as the litigation privilege, has been broadly defined to

6

provide immunity for “any publication required or permitted by law in the course of a judicial

7

proceeding to achieve the objects of the litigation, even though the publication is made outside the

8

courtroom and no function of the court or its officers is involved.” Silberg v. Anderson, 50 Cal.3d

9

205, 212 (1990). This privilege, however, does not apply here because some of Slabaugh’s

accuses Slabaugh of using coercive or abusive investigation techniques that led to false information.

12
For the Northern District of California

wrongful conduct was not based on any publication, such as Dinius’s Devereaux claim which

11
UNITED STATES DISTRICT COURT

10

Accordingly, Slabaugh’s motion to dismiss is DENIED with respect to this claim.

13

IV. CONCLUSION

14

In accordance with the Court’s rulings above, the Defendants’ motions to dismiss are

15

GRANTED IN PART and DENIED IN PART and Hopkins’s anti-SLAPP motion is DENIED.

16

With respect to Dinius’s pending claims, the Court shall conduct a case management conference on

17

July 5, 2012 at 10:00 a.m. in Courtroom B, 15th Floor, 450 Golden Gate Avenue, San Francisco,

18

California. The parties shall file a joint case management statement no later than June 28, 2012.

19

IT IS SO ORDERED.

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21

Dated: May 24, 2012
_______________________________
Maria-Elena James
Chief United States Magistrate Judge

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employment. Id. at 23.
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