Hernandez v. City of Oakley et al

Filing 109

ORDER by Judge Joseph C. Spero granting 84 Motion for Summary Judgment; denying 103 Motion to Strike (jcslc1, COURT STAFF) (Filed on 11/6/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JUAN HERNANDEZ,
Plaintiff,

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v.

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CITY OF OAKLEY, ET AL.,

ORDER GRANTING AMENDED
MOTION FOR SUMMARY JUDGMENT
OR, ALTERNATIVELY, FOR PARTIAL
SUMMARY JUDGMENT [Docket No. 84]

Defendant.

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United States District Court
Northern District of California

Case No: C-11-02415 JCS

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I.

INTRODUCTION
Plaintiff Juan Hernandez brings this civil rights action after he was arrested and detained for

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violating his probation based on court orders stating that his probation was still active even

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though his probation had, in fact, been terminated. Plaintiff has dismissed numerous Defendants

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and claims from the action. The remaining Defendants are Contra Costa County, Probation

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Officer Chad Cardoza and Public Defender Laurie Mont; the remaining claims are Claims Two,

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Four, Six and Eight. The parties have consented to the jurisdiction of a United States Magistrate

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Judge pursuant to 28 U.S.C. § 636(c).
Currently before the Court is Defendants‘ Amended Motion for Summary Judgment or,

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Alternatively, for Partial Summary Judgment (―Motion‖). A hearing on the Motion was held on

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Friday, November 2, 2012 at 9:30 a.m. For the reasons stated below, the Motion is GRANTED.

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II.

BACKGROUND

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A. Factual Background

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On January 11, 2007, Plaintiff Juan Hernandez appeared in Contra Costa County

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Superior Court to enter plea bargains on two separate felony complaints, in Case Nos. 125796-3

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and 150768-2.1 Joint Statement of Undisputed Material Facts (―UMF‖) 1; see also Request for

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Judicial Notice in Support of Defendants‘ Amended Motion for Summary Judgment (―RJN‖), Ex.

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A (Complaint, Case No. 125796-3 ), Ex. B (Complaint, Case No. 150786-2), Ex. C (minute order

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in Case No. 125796-3), Ex. D (minute order in Case No. 150786-2). 2 The felony complaint in

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Case No. 125796-3 arose from a 2005 auto accident in Walnut Creek, California. UMF 2. The

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complaint alleged that Hernandez was driving under the influence of alcohol and drugs and, in so

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doing, caused great bodily injury to his passenger. UMF 3; RJN, Ex. A (Complaint, Case No.

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125796-3). The second felony complaint, in Case No. 150786-2, alleged that in 2006, while in
Antioch, California, Hernandez possessed marijuana with the intent to sell. UMF 6; RJN, Ex. B

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United States District Court
Northern District of California

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(Complaint, Case No. 150768-2).
Hernandez pled no contest to both felony complaints and he was placed on probation for a

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period of three years, through January 11, 2010. UMF 7; RJN, Ex. C (January 11, 2007 minute

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order in Case No. 125796-3) & Ex. D (January 11, 2007 minute order in Case No. 150786-2).

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His probation terms included completion of a substance abuse program, abstaining from the use

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of alcohol and controlled substances, and submitting to testing for both alcohol and drug use.

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UMF 8; RJN, Ex. E (Probation Order). On March 25, 2008, Hernandez submitted a urine sample

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that tested positive for cocaine at a scheduled probation appointment. UMF 9; RJN, Ex. G (April

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4, 2008 Petition to Revoke Probation). The Probation Officer, Deputy Probation Officer Chad

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Cardoza, of the Contra Costa County Probation Department (―Probation Officer Cardoza‖), found

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that Hernandez had violated the terms of his probation and recommended to the court that his

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probation be revoked. UMF 10; RJN, Ex. G (April 4, 2008 Petition to Revoke Probation).
On April 22, 2008, a combined hearing was held in Contra Costa County Superior Court

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on Hernandez‘s alleged violation of probation in Case Nos. 125796-3 and 150786-2. UMF 12;
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Although the Joint Statement of Undisputed Material Facts lists the case number as 150788-2 in
UMF 1, the complaint in that case indicates that this is a typographical error and that the case
number was 150786-2.
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In the RJN, Defendants request that the Court take judicial notice of various public records from
the criminal cases referenced above, pursuant to Rule 201 of the Federal Rules of Evidence.
Plaintiff does not oppose the request, which is GRANTED.
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RJN, Ex. H (April 22, 2008 minute order in Case No. 125796-3) & Ex. I (April 22, 2008 minute

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order in Case No. 150786-2). In both matters, Hernandez admitted violating his probation, the

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court found him in violation, and he was ordered to serve 90 days in jail. UMF 15; RJN, Ex. H

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(April 22, 2008 minute order in Case No. 125796-3) & Ex. I (April 22, 2008 minute order in Case

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No. 150786-2). As discussed further below, the undisputed evidence shows that an agreement

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had been reached at the April 22, 2008 hearing to terminate Hernandez‘s probation. See UMF 73-

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76. However, the minute orders in both cases state that probation was ―[r]einstated‖ with the

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―[o]riginal terms in full force and effect.‖ UMF 16; RJN, Ex. H (April 22, 2008 minute order in

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Case No. 125796-3) & Ex. I (April 22, 2008 minute order in Case No. 150786-2).

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On May 22, 2009, Hernandez was a passenger in a vehicle that was stopped by Officer

United States District Court
Northern District of California

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Curtis Berkley, of the Oakley Police Department, on suspicion of driving under the influence

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(―DUI‖). UMF 18; Declaration of Curtis Berkley in Support of Defendants‘ Amended Motion for

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Summary Judgment (―Berkley Decl.‖), ¶¶ 3-4; Declaration of Christopher B. Whitman in

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Support of Defendants‘ Amended Motion for Summary Judgment (―Whitman Decl.‖), Ex. A

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(Hernandez Depo.) at 65-66. The driver of the vehicle was arrested for DUI. UMF 19; Berkley

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Decl., ¶ 4. During the traffic stop, Officer Berkley smelled a strong odor of alcohol emanating

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from Hernandez‘s breath and observed a can of malt liquor on the floor board of the car. UMF 20,

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Berkley Decl., ¶ 6-7. When asked, Hernandez admitted to Officer Berkley that he had been

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drinking malt liquor. UMF 22; Berkley Decl., ¶ 8. During the traffic stop, Officer Berkley used

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his portable radio to request that Contra Costa County Sheriff‘s Office dispatch check the

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probation records to see if Hernandez was on probation. UMF 23, Berkley Decl., ¶ 9. The

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dispatcher confirmed that Hernandez was on ―active probation‖ and that one of the probation

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terms was to ―consume no alcohol.‖ UMF 23-24; Berkley Decl., ¶ 9. Hernandez then submitted

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to a preliminary alcohol screening device which gave a result of .098 percent blood alcohol

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content (―BAC‖). UMF 25; Berkley Decl., ¶ 10. Accordingly, Hernandez was arrested by

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Officer Berkley, taken to the Oakley Police Department, fingerprinted, issued a notice to appear

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in court, and then released that same day. UMF 26; Berkley Decl., ¶ 11.

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On June 1, 2009, Probation Officer Cardoza prepared a petition to revoke Hernandez‘s

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probation (―Petition to Revoke Probation‖) on the grounds that Hernandez was arrested for

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violating the terms of his probation. UMF 28-29. At that time, Probation Officer Cardoza was in

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his tenth year as a Probation Officer for the County. UMF 30. The petition stated that Hernandez

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was arrested on May 22, 2009, with a BAC measured at .098 percent, and that his ―Court Order

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states that he is to abstain from the use of alcohol.‖ UMF 31, RJN, Ex. J (Petition to Revoke

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Probation).
Before he prepared the Petition to Revoke Probation, Probation Officer Cardoza reviewed

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Hernandez‘s probation file and the related court orders. UMF 33; Amended Declaration of
Robert N. Kitay in Support of Opposition to MSJ; Request for Judicial Notice3 (―Kitay Decl.‖),

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United States District Court
Northern District of California

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Ex. 9 (Cardoza Depo.)4 at 27 (―I did review the hard copy file‖); see also Whitman Decl., Ex. B

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(Cardoza Depo.) at 27. He testified that there were notes in the file relating to what happened at

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the April 22, 2008 hearing but that he did not recall their content. Kitay Decl., Ex. 9 (Cardoza

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Decl.) at 27-28; see also Whitman Decl., Ex. B (Cardoza Depo.) at 27-28. He further testified

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that he ―recognized that the court officer‘s notes differed from what the court order [from the

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April 22, 2008 hearing] said‖ but that the court order did not reflect that probation had been

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terminated and ―the court officer‘s notes wouldn‘t override the court order.‖ Kitay Decl., Ex. 9

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(Cardoza Decl.) at 29-30; see also Whitman Decl., Ex. B (Cardoza Depo.) at 29-30. Probation

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Officer Cardoza testified that he did not know if the Probation Department had any policy for

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dealing with a discrepancy between a court order and the notes of the court officer; nor did he

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know whether he could obtain a copy of a transcript from a criminal hearing. Kitay Decl., Ex. 9

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(Cardoza Decl.) at 33; see also Whitman Decl., Ex. B (Cardoza Depo.) at 33.

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Plaintiff requests that the Court take judicial notice of documents from the state court
proceedings. Because these documents are subject to judicial notice as public records under Rule
201 of the Federal Rules of Evidence, the request is GRANTED.
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Defendants have objected to the deposition excerpts offered by Plaintiff in Exhibits 7-9 to the
Kitay Declaration on the basis that they are not accompanied by a signed certificate by the court
reporter certifying the authenticity of the transcripts. The Court need not reach this objection
because, even assuming these excerpts are admissible, it finds in favor of Defendants as to all of
the remaining claims in this action. The Court also notes that most of the deposition excerpts
cited by Plaintiff were also provided by Defendants in admissible form.
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On June 2, 2009, the Contra Costa County Superior Court issued an order to revoke

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probation and issued a bench warrant for Hernandez. UMF 38; RJN, Ex. J. On July 17, 2009,

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Hernandez appeared before Judge William Kolin, of the Contra Costa County Superior Court,

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pursuant to the bench warrant. UMF 39; RJN, Ex. K (minute order) & Ex. L (hearing transcript).

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Judge Kolin referred to the Petition to Revoke Probation and the court‘s docket, and concluded

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that Hernandez was on felony probation that required him to abstain from using alcohol. UMF 40;

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RJN, Ex. L (hearing transcript) at 5. Judge Kolin further found that, on May 22, 2009, Hernandez

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violated his parole when he was cited with a BAC of .098 percent. UMF 41; RJN, Ex. L (hearing

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transcript) at 5. The court referred Hernandez to the Public Defender‘s Office, remanded him to

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the custody of the Sheriff, and set a further hearing. UMF 42; RJN, Ex. K (minute order).
On July 21, 2009, Hernandez appeared before Judge Richard Arnason, of the Contra Costa

United States District Court
Northern District of California

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County Superior Court, and was represented by Deputy Public Defender Dan Clark. UMF 43;

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RJN, Ex. M (minute order). Mr. Clark requested that Hernandez be released on his own

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recognizance. UMF 44; Kitay Decl., Ex. 3 (July 21, 2009 hearing transcript).5 However, Judge

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Arnason noted ―several‖ probation violations by Hernandez and denied the request. UMF 45.

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Mr. Clark also informed the Court that ―[Hernandez] believes after his last [probation] violation

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his probation was terminated.‖ UMF 46; Kitay Decl., Ex. 3. In response, the District Attorney,

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Judge Arnason, and Mr. Clark asked the court clerk to review the court file. UMF 47; Kitay

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Decl., Ex. 3. The clerk stated that, on April 22, 2008, ―[t]he probation was reinstated.‖ UMF 48;

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Kitay Decl., Ex. 3. The hearing was then continued for one week, per Mr. Clark‘s request. UMF

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49.
On July 28, 2009, Hernandez again appeared before Judge Arnason, this time represented

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by Deputy Public Defender Laurie Mont. UMF 51; RJN, Ex. O (minute order). The probation

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officer requested that Hernandez be given a sentence of 120 days in jail for violating his

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probation, and Public Defender Mont requested a shorter sentence. UMF 52; RJN, Ex. P (July 28,

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In support of UMF 44, the parties cite to RJN, Ex. N, which is purportedly a transcript of the
July 21, 2009 hearing. While the face page of that exhibit refers to the July 21 hearing, however,
the pages that follow are from a hearing on July 31, 2009. Therefore, the Court relies on the
transcript of that hearing provided by Plaintiff, attached as Exhibit 3 to the Kitay Declaration.
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2009 transcript). The District Attorney noted that ―[t]his is his 5th violation,‖ and that Hernandez

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―was on probation for DUI with injury, tested positive for alcohol, and has never gone to his

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drinking driving program for probation.‖ UMF 53; RJN, Ex. P (July 28, 2009 transcript).

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Hernandez was given and waived his rights to a revocation hearing, and he admitted the

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allegations in the petition to revoke probation. UMF 54; RJN, Ex. P (July 28, 2009 transcript).

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Judge Arnason found that Hernandez violated probation and ordered that his probation be

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terminated as unsuccessful upon completion of a 120-day jail sentence. UMF 56; RJN, Ex. P.
Public Defender Mont does not remember Hernandez telling her at the July 28, 2009

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hearing that his probation had previously been terminated. UMF 57; Whitman Decl., Ex. C
(Mont Depo.) at 22-23. Public Defender Mont did not discuss the termination issue with Public

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United States District Court
Northern District of California

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Defender Clark, nor did she know that Mr. Clark had raised the termination issue at the prior

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hearing. UMF 58; Whitman Decl., Ex. C (Mont Depo.) at 22-23. Public Defender Mont testified

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that if she had been aware of this information, she would have ―made an argument . . . that

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because [Hernandez] didn‘t know that he was on probation he wouldn‘t have known to complete

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whatever requirements he allegedly violated, and so there‘s no willful violation of probation.‖

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UMF 64; Whitman Decl., Ex. C (Mont Depo.) at 25.
After the July 28, 2009 hearing, Public Defender Mont received a telephone call from

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Hernandez, who called her from jail. UMF 65, 66; Hernandez Depo. at 82, 90. The phone call

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prompted her to retrieve a public defender file ―from the archives‖ and to review the portion

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related to the April 22, 2008 hearing. UMF 68; Whitman Decl., Ex. C (Mont Depo.) at 7, 20.

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Public Defender Mont found a handwritten note from the public defender who represented

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Hernandez at that hearing, Ms. Mary Pryor. UMF 69; RJN, Ex. Q (July 31, 2009 hearing

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transcript). The note indicated that an agreement was reached for Hernandez to serve jail time

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with probation ―terminated‖ upon release. UMF 70; RJN, Ex. Q. Public Defender Mont tried to

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confirm the accuracy of this information with the Probation Department, but the Probation

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Department records from 2008 had been destroyed. UMF 71; Kitay Decl., Ex. 8 (Mont Depo.) at

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8-10.

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On July 31, 2009, Public Defender Mont appeared before Judge Michael Coleman, of the

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Contra Costa County Superior Court. UMF 72; RJN, Ex. Q (July 31, 2009 hearing transcript).

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She requested that Judge Coleman look in the ―confidential‖ part of the file with the judge‘s notes

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to confirm whether an agreement had been reached at the April 22, 2008 hearing to terminate

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Hernandez‘s probation. UMF 73; RJN, Ex. Q. After reading the confidential notes of Judge Joni

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Hiramoto – who presided over the April 22, 2008 hearing – Judge Coleman said: ―it states here

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that ‗. . . probation terminated unsuccessfully upon release from custody.‘‖ UMF 74; RJN, Ex. Q.

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Judge Coleman sent the parties to appear before Judge Hiramoto that same day to determine

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whether probation was, in fact, terminated in 2008. UMF 75; RJN, Ex. Q.

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On July 31, 2009, Judge Hiramoto vacated the July 28, 2009 admission of probation

United States District Court
Northern District of California

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violation, ordered probation terminated unsuccessfully nunc pro tunc to April 22, 2008, and

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dismissed the allegation of probation violation. UMF 76; RJN, Ex. R (minute order). Judge

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Hiramoto wrote on the minute order, ―Mr. Hernandez wrongfully taken into custody for probation

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violation.‖ UMF 76; RJN, Ex. R (minute order). Hernandez was then ordered released. UMF 77;

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RJN, Ex. R.

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B. Procedural Background

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In his First Amended Complaint, Hernandez named the following defendants: City of

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Oakley; City of Oakley Police Department; Contra Costa County; Contra Costa County Sheriff;

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Contra Costa County Department of Probation; Contra Costa County Office of the Public

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Defender; Chad Cardoza; Laurie Mont; Officer C. Berkley of the City of Oakley Police

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Department; and Does 1 To 50. He asserted the following claims: 1) violation of 42 U.S.C. §

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1983 based on alleged false arrest on May 22, 2009 (Officer Berkley, City of Oakley, and City of

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Oakley Police Department) (Claim One); 2) violation of 42 U.S.C. § 1983 based on false arrest

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and/or false imprisonment resulting from petition to revoke probation (Probation Officer Cardoza,

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Contra Costa County, and Contra Costa County Department of Probation) (Claim Two); 3)

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violation of 42 U.S.C. § 1983 based on alleged false arrest and false imprisonment on July 17,

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2009, when Plaintiff was taken into custody by the Contra Costa County Sheriff (Contra Costa

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County Sheriff, Contra Costa County) (Claim Three); 4) Legal malpractice based on alleged
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inadequate legal representation by Public Defender Laurie Mont (Laurie Mont, Contra Costa

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County Office of the Public Defender) (Claim Four); 5) False arrest and/or false imprisonment

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based on arrest on May 22, 2009 (Officer Berkley, City of Oakley, and City of Oakley Police

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Department) (Claim Five); 6) False arrest and/or false imprisonment based on Petition to Revoke

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Probation (Probation Officer Cardoza, Contra Costa County, and Contra Costa County

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Department of Probation) (Claim Six); 7) False arrest and/or false imprisonment based on

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arrest on July 17, 2009, when Plaintiff was taken into custody by the Contra Costa County Sheriff

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(Contra Costa County Sheriff, Contra Costa County) (Claim Seven); and 8) General negligence/

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violation of statutory duty (all Defendants)(Claim Eight).

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On August 17, 2012, the parties filed stipulations dismissing Officer Berkley, the City of

United States District Court
Northern District of California

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Oakley Police Department, the City of Oakley and the Contra Costa County Sheriff from this

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action. Consequently, Claims One, Three, Five and Seven ˗ which were asserted against only the

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dismissed Defendants ˗ were dismissed as well. The remaining defendants are Probation Officer

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Cardoza, Public Defender Mont, the Contra Costa County Office of the Public Defender, the

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Contra Costa Department of Probation, and the County of Contra Costa. The remaining claims in

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the action are Claims Two, Four, Six and Eight.

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C. The Motion
Defendants seek entry of summary judgment against Plaintiff on all remaining claims.
Defendants‘ arguments are summarized below.
1. Claim Two (False Arrest/False Imprisonment under 42 U.S.C. § 1983)

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Defendants argue that Claim Two should be dismissed because: 1) based on the

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undisputed facts, Probation Officer Cardoza had probable cause to believe Cardoza violated the

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terms of his probation; 2) Probation Officer Cardoza did not have a duty to conduct an

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independent due diligence investigation before submitting the Petition to Revoke Probation; 3)

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Probation Officer Cardoza‘s acts are protected by absolute and/or qualified immunity; and 4)

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Contra Costa County and the Contra Costa County Probation Office cannot be held liable on this

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claim, either on a theory of direct or vicarious liability. Motion at 9-15.

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With respect to the first point, Defendants argue that Probation Officer Cardoza had

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probable cause to believe Hernandez had violated the terms of his probation because of the

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undisputed facts that Probation Officer Cardoza: 1) had examined facially valid court orders

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showing that Hernandez was on active probation and prohibited from consuming alcohol at the

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time of his May 22, 2009 arrest; 2) knew that Hernandez had been arrested by the Oakley Police

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Department with a .098 percent blood alcohol count; and 3) knew that Hernandez had a history of

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probation violations as he had recommended that probation be revoked for Hernandez‘s positive

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drug test in 2008. Id. at 9-10 (citing UMF 10, 16, 17, 27-29, 31 and 33-34). According to

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Defendants, even assuming Probation Officer Cardoza saw a note in Hernandez‘s file suggesting
his probation had been terminated, he nevertheless had probable cause because he relied on the

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United States District Court
Northern District of California

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facially valid court order in the file. Id. at 10 (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)

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(defining probable cause as ―knowledge or reasonably trustworthy information sufficient to lead a

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person of reasonable caution to believe that an offense has been or is being committed by the

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person being arrested‖)). Similarly, Defendants contend, even if there was evidence that

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Hernandez told Probation Officer Cardoza that his probation had been terminated, this is not

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sufficient to create a material question of fact as to probable cause. Id. (citing Buckheit v. Dennis,

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2012 WL 1166077, at * 16 (N.D.Cal., April 06, 2012) (finding that testimony by civil rights

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plaintiff that he had told the arresting officers that he had not assaulted alleged victim was not

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sufficient to create a material issue of fact on probable cause in the face of other undisputed

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evidence showing that officers had probable cause to arrest the plaintiff).

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Defendants also argue that under both California and federal law, probable cause is not

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required to arrest and detain a probationer for a probation violation, but rather, only a reasonable

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belief that a probation violation has occurred. Id. (citing United States v. Butcher, 926 F.2d 811,

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814 (9th Cir. 1991)). That standard is easily met here, Defendants argue, for the reasons

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discussed above. Id. at 10-11.

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With respect to Plaintiff‘s allegation in support of his Fourth Amendment claim that

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Probation Officer Cardoza did not review the court file or conduct an independent due diligence

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investigation prior to submitting his petition to revoke, Defendants argue that: 1) the undisputed
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facts show that he did review the file; and 2) that there is no duty to look beyond the court order

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in the file for other courthouse records that might be relevant where there is nothing on the face of

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the order to indicate that it incorrect. Id. at 11-12 (citing Alston v. Read, 663 F.3d 1094, 1100 (9th

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Cir. 2011) (holding that for the purposes of qualified immunity, there was no clearly established

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right requiring prison official to review a prisoner‘s original court records where official relied on

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official court judgment and nothing on the face of that judgment indicated its illegality)).
Defendants also contend that the acts of Probation Officer Cardoza in connection with the

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petition to revoke probation are entitled to absolute and/or qualified immunity. Id. at 12-14. With

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respect to absolute immunity, Defendants cite cases they contend hold that probation officers

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preparing and submitting a probation report in a criminal case are performing a quasi-judicial

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United States District Court
Northern District of California

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function and as such, are entitled to similar, or even the same, immunity as is accorded to judges

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for acts done as part of their judicial function. Id. at 12-13 (citing Burkes v. Callion, 433 F.2d

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318, 319 (9th Cir. 1970); Demoran v. Witt, 781 F.2d 155, 157 (9th Cir. 1985); Miller v. Butte

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County, 2008 U.S. Dist. LEXIS 84648, at *7-8 (E.D. Cal. 2008); Puentes v. County of San Mateo,

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2011 WL 4005383 (N.D. Cal. Sept. 8, 2011)).6 In the alternative, Defendants contend that

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Probation Officer Cardoza is entitled to qualified immunity based on the reasonable, if mistaken,

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belief that Hernandez was on active probation. Id. at 13 (citing Anderson v. Creighton, 483 U.S.

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635, 641 (1987); Malley v. Briggs, 475 U.S. 335, 341 (1986); Buckheit v. Dennis, 2012 WL

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1166077, at * 17-18 (N.D. Cal., April 06, 2012); Pearson v. Callahan, 555 U.S. 223, 231 (2009);

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Liberal v. Estrada, 632 F.3d 1064, 1077 (9th Cir. 2011)).
In addition, Defendants contend that even if Probation Officer Cardoza were not entitled

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to qualified immunity, he cannot be held liable for a violation of Plaintiff‘s Fourth Amendment

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rights because he merely filed the petition to revoke probation and therefore was not an ―integral

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participant‖ in the alleged constitutional violation. Id. at 14 (citing Silva v. City of San Leandro,

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744 F. Supp. 2d 1036, 1050 (N.D. Cal. 2010); Dowell v. Griffin, 2011 WL 5415684, at * 16-17

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Defendants also cite an unpublished Ninth Circuit case issued in 1997, in violation of Circuit
Rule 36-3. The Court does not cite that case here.
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(S.D. Cal., November 08, 2011); Madrid v. City of Oakland, 2010 U.S. Dist. LEXIS 130289, at

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*2, 13 (N.D. Cal. 2010)).

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As to Defendants Contra Costa County and the Contra Costa County Department of

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Probation, Defendants argue that Hernandez cannot establish either vicarious or direct liability as

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to either Defendant. Id. at 16-17. As to the County, Defendants assert that it cannot be

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vicariously liable because it is a governmental entity and, as such, cannot be liable under § 1983

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because Plaintiff has not alleged that the relevant conduct was pursuant to a policy or custom on

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the part of the County. Id. at 15 (citing Monell v. Dep’t of Soc. Services, 436 U.S. 658, 691

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(1978)). As to the Probation Department, Defendants argue that it is not a separate legal entity
subject to suit under § 1983 and further, to the extent it is part of the County government, Plaintiff

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United States District Court
Northern District of California

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has not alleged or presented any evidence of a policy or practice to which the alleged

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constitutional violation is attributable. Id. at 15-16.

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2. Claim Six (False Arrest/ False Imprisonment under California State Law)

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Defendants argue that Plaintiff‘s state law false arrest/false imprisonment claim, like his

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federal claim, fails because: 1) Probation Officer Cardoza had probable cause and a reasonable

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belief that Plaintiff violated the terms of probation; 2) Probation Officer Cardoza did not have a

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duty to conduct an independent due diligence investigation before submitting the petition to

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revoke probation; and 3) Contra Costa County and the Probation Department cannot be held

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liable on this claim, either on a theory of direct or vicarious liability.

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According to Defendants, under state law, Plaintiff must show a ―nonconsensual,

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intentional confinement without lawful privilege for an appreciable length of time‖ to prevail on a

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claim for false imprisonment. Id. at 16 (quoting Fermino v. Fedco, Inc., 7 Cal. 4th 701, 715

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(1994)). Defendants contend that Hernandez cannot prove such an unlawful confinement because

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Probation Officer Cardoza‘s acts were authorized by California Penal Code Section 1203.2,

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which ―authorizes a probation officer to rearrest a person on probation if the officer has ‗probable

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cause to believe that the supervised person is violating any term or condition of his or her

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supervision [ie. probation].‘‖ Id. (quoting Cal. Penal Code Section 1203.2). Defendants assert

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that Probation Officer Cardoza had probable cause to believe Hernandez was violating the terms
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of his probation for the reasons discussed above. Id. at 16-17. In addition, Defendants cite to

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California law providing that a detention is privileged if it is ―legally authorized, as when made

3

pursuant to lawful process.‘‖ Id. at 17 (citing Muller v. Reagh, 215 Cal. App. 2d 831, 836-837

4

(1963)). Here, Defendants contend, Probation Officer Cardoza relied on a facially valid court

5

order and therefore, this privilege applies. Id. As discussed above, Defendants further assert that

6

only a reasonable belief that a probation violation occurred is necessary under California state

7

law. Id. at 18. Defendants also argue that by dismissing Officer Berkley as a Defendant, Plaintiff

8

essentially stipulated that the arrest by Officer Berkley was lawful and therefore, Hernandez

9

cannot establish that Probation Officer Cardoza did not have probable cause to believe that

10

United States District Court
Northern District of California

11

Hernandez had violated the terms of his probation. Id. at 18.
As to Probation Officer Cardoza‘s alleged failure to review the file or to conduct a due

12

diligence investigation as to the alleged probation violation, Defendants contend that these

13

theories of liability fail on the state law claim for the same reason they fail on the federal claim,

14

namely, that the undisputed facts show that Probation Officer Cardoza reviewed the file and there

15

is no authority that he had an obligation to conduct further investigation. Id. at 18-19 (citing

16

Lucido v. Sup. Ct. of Mendocino County, 51 Cal. 3d 335, 347 (1990)). Defendants note that

17

because probation hearings have a lower burden of proof than applies to criminal defendants

18

facing a new conviction, they ―may not involve . . . presentation of all evidence bearing on the

19

underlying factual allegations.‖ Id. at 19 (citing Lucido, 51 Cal. 3d at 348). The time for any

20

investigation or fact finding, Defendants assert, would have been at the probation revocation

21

hearing, but Hernandez waived his right to such a hearing and instead admitted to a probation

22

violation. Id.

23

Finally, Defendants argue that neither the County nor the Probation Department can be

24

held directly or vicariously liable. Id. at 19-20. With respect to the County, Defendants argue

25

that under California‘s Government Claims Act, it can be liable for injury caused by an

26

employee‘s conduct within the scope of employment only if the employee is liable, and that is not

27

the case here for the reasons stated above. Id. at 20 (citing Williams v. Horvath, 16 Cal. 3d 834,

28

838 (1976)). Nor can the County be held directly liable for failing to accurately record the
12

1

termination of plaintiff‘s employment, Defendants assert, because Plaintiff has not identified any

2

statute that creates direct liability for the County on that basis. As to the Probation Department,

3

Defendants argue that there is no authority that it is a separate legal entity subject to suit and in

4

fact, it is not. Id.

5
6

3. Claim Four (Legal Malpractice)
Defendants assert that the Court should also grant summary judgment in their favor on
Plaintiff‘s legal malpractice claim against Public Defender Mont and the Contra Costa Office of

8

the Public Defender (Claim Four) because: 1) expert opinion evidence is required to establish

9

malpractice and none is offered by Plaintiff in this case; 2) the undisputed facts establish that

10

Public Defender Mont met the standard of care in representing Plaintiff; and 3) Contra Costa

11

United States District Court
Northern District of California

7

County Office of the Public Defender cannot be held vicariously liable on this claim because no

12

policy or practice has been alleged under Monell, and it cannot be held directly liable because the

13

Office of the Public Defender is not an independent legal entity and is not amenable to suit.

14

Motion at 20-25.

15

According to Defendants, in order to prevail on his malpractice claim, Plaintiff must show

16

that Public Defender Mont breached the duty of an attorney ―to use such skill, prudence and

17

diligence as members of the profession commonly possess.‖ Motion at 21 (quoting Wiley v.

18

County of San Diego, 19 Cal. 4th 532, 536 (1998)). Defendants argue that when a malpractice

19

action is brought against a legal specialist, such as a public defender, expert testimony is required

20

to define the applicable duty of care unless the claim is based on conduct within the layperson‘s

21

common knowledge. Id. (citing Unigard Ins. Group v. O’Flaherty& Belgum, 38 Cal. App. 4th

22

1229, 1237 (1995); Tibor v. Sup. Ct. of L.A. County, 52 Cal. App. 4th 1359, 1364 n. 1 (1997)).

23

Here, Defendants assert, the alleged breach is not within the common knowledge of a lay person

24

and Plaintiff has not offered any expert testimony to show that Public Defender Mont breached

25

the applicable standard of care. Id. at 21-22. Therefore, Defendants argue, the Court should enter

26

summary judgment against Plaintiff on this claim. Id. at 22.

27
28

Defendants further contend that summary judgment should be entered against Hernandez
on this claim because Public Defender Mont‘s conduct satisfies the standard of care. Id. at 22-24.
13

1

In particular, according to Defendants, the undisputed evidence shows that: 1) at the time she first

2

appeared on behalf of Hernandez, on July 28, 2009, no one, including Hernandez, had told her

3

that his probation had been terminated; 2) at that point, neither Hernandez nor Public Defender

4

Mont had any evidence that his probation had been terminated; and 3) Public Defender Mont

5

secured Hernandez‘s release as soon as she located evidence from the ―archives‖ and was able to

6

obtain information relating to the ―confidential‖ notes of the 2008 hearing judge. Id. at 22.

7

Defendants argue further that Public Defender Mont could not be liable based on the

8

representation provided at the July 21, 2009 hearing because she did not represent Hernandez at

9

that hearing and the public defender who did actually informed the judge that Hernandez believed
his probation had been terminated. Id. In addition, Defendants note, it is undisputed that the

11

United States District Court
Northern District of California

10

evidence needed to establish that probation had been terminated was not easily accessible

12

because the public defender files from 2008 were archived, the Probation Department files had

13

been destroyed, and the judge‘s notes were confidential. Id. at 24. Finally, Defendants argue that

14

any claim based on Public Defender Mont‘s failure to discover that Hernandez‘s probation had

15

been terminated is rendered moot by Hernandez‘s voluntary admission of a probation violation

16

and waiver of the right to a probation hearing at the July 28, 2009 hearing. Id. (citing Cal. Civ.

17

Code Section 3516; Allin v. Int’l Alliance, 113 Cal. App. 2d 135 (1952)).

18

4. Claim Eight (Negligence)

19

Defendants argue that Plaintiff‘s negligence claim fails because a county cannot be held

20

liable for ordinary negligence. Id. at 25 (citing Cal. Gov‘t. Code Section 815; Eastburn v. Reg’l

21

Fire Prot. Auth., 31 Cal. 4th 1175 (2003)). Furthermore, Defendants contend that employees of

22

the county are immune from general negligence liability under Cal. Gov‘t. Code Section 821.6.

23

Id. (citing Cappucio, Inc. v. Harmon, 208 Cal. App. 3d 1496, 1501 (1989); Blackburn v. County

24

of L.A., 42 Cal. App. 3d 175, 177-178 (1974)).

25
26
27

D. Opposition
In his Opposition brief, Hernandez cites sixteen facts that he believes are still in dispute,
arguing generally that the Court should deny Defendants‘ Motion on the basis of these factual

28

14

1

disputes.7 Plaintiff goes on to argue that Defendants cannot contest the issue of whether

2

Hernandez was unlawfully arrested because Judge Hiramoto already decided that question and

3

her finding is binding in this action under the doctrine of res judicata. Opposition at 12-15.

4
5
6
7
8
9

7

Plaintiff cites to the following facts that are purportedly in dispute, quoted verbatim (including
apparent typographical errors) below:
1.
A reasonable inference, based on the state of the evidence, is that the ―hard file‖ retained
by the probation department contained notes indicating Plaintiff‘s probation had been terminated,
as recorded by Probation Officer ―Schultz‖. See Joint Statement of Undisputed Material Facts
(JSUMF), Facts Nos. 13, 14; see also Plaintiff‘s Statement of Facts in Dispute (PSFD), Facts
Nos. 4.

10

United States District Court
Northern District of California

11
12
13

2.
Off. Cardoza had reason to know there were discrepancies between the notes from the
probation hearing department officer, contained in the ―hard file‖, and the minute order from the
hearing on 04/22/2008. JSUMF Fact no. 35; PSFD Fact no. 1.
3.
Off. Cardoza did nothing to clarify those discrepancies; for example, he easily could have
requested and obtained the hearing transcript, but chose not to. JSUMF Fact no. 37.

14
15
16
17
18

4.
The Department of Probation had no procedure in place, known to Off. Cardoza, on how
to handle a situation in which the notes on the file differ from the minute order. PSFD fact nos. 2,
3.
5.
Public Defender Pryor, at the hearing on 04/22/2008, recorded what actually occurred (ie .
. . that probation had been terminated) in the face sheet and her file notes. JSUMF fact. nos. 68,
69, 70; PSFD fact no. 6.

19
20
21
22
23
24

6.
Pub. Defender Clark, at the hearing on 7/21/2012 argued that the probation had been
terminated. JSUMF fact no. 6; PSFD fact no. 7.
7.
Pub. Defendant Clark did not speak to Pub. Defender Mont prior to the hearing on
07/28/2009. JSUM fact no. 58; PSFD fact nos. 8.
8.
Pub. Defender Clark did not bring the issue of the probation being previously terminated
to Public Defender Mont‘s attention in any manner (face to face discussion, email, telephone
message, text, etc.). PSFD fact no. 8.

25
26
27
28

9.
Public Defender Mont did not, prior to the hearing on 07/28/2009, review the file
regarding the probation revocation hearing on 04/22/2008. JSUMF fact no. 60; PSFD fact no. 11.
10.
Plaintiff told Public Defender Mont prior to the hearing on 7/28/2012 (at a jail interview),
that the probation had previously been terminated. PSFD fact no. 9.

15

1

Plaintiff argues further that even if the doctrine of res judicata does not apply, there are

2

material fact questions as to whether Officer Cardoza exercised reasonable efforts or due

3

diligence to investigate the discrepancies he saw in the Probation Department file. Id. at 15.

4

Plaintiff argues that there is evidence that a hearing officer from the Probation Department

5

(Officer Schultz) sat in on April 22, 2008 hearing and likely noted that probation was terminated,

6

and there is also evidence that Probation Officer Cardoza likely saw those notes when he

7

reviewed the file, and yet there is no evidence that he made any effort to clear up the discrepancy,

8

even though ―a simple way for [Probation Officer] Cardoza to investigate the issue of the

9

discrepancies (which is what Public Defender Mont ultimately did) was for him to request the oral
transcript from the hearing.‖ Id. at 16. Plaintiff also cites to testimony by Probation Officer

11

United States District Court
Northern District of California

10

Cardoza that he was not aware of any policies or procedures for dealing with such a situation and

12

asserts that nowhere in the deposition transcript does Probation Officer Cardoza ―even indicate he

13
14
15

11.
In response to this information, Public Defender Mont did not pull the file from the
hearing on 04/22/2008 to investigate this claim. JSUMF fact no. 60; PSFD fact no. 11.

16
17
18
19
20
21
22

12.
Public Defender Mont claims that at no time until after the hearing on 07/28/2012 did
Plaintiff inform her that his probation was terminated. JSUMF fact nos. 61, 62, 63, 64, 65, 66.
13.
At the hearing on 07/28/2012, without investigating the issue of the termination of the
probation, Public Defender Mont counseled Plaintiff to enter a plea of guilty to the probation
violation petition even though Plaintiff‘s probation had previously been terminated. PSFD fact
no. 12.
14.
Public Defender Mont, after the hearing on 07/28/2012, and only because Plaintiff
continued to call her regarding this issue (from the jail), finally pulled the file from the hearing on
04/22/2008. JSUMF fact nos. 61, 62, 63, 64, 65; PSFD fact no. 13.

23
24
25
26
27
28

15.
Upon reviewing this file, Public Defender Mont learned from the ―face sheet‖ that
Plaintiff‘s probation had in fact been terminated as he had previously told her. JSUMF fact no.
70.
16.
Judge Hiramoto, on 07/31/2009, determined that Plaintiff had been ―wrongfully taken into
custody for probation violations. [‖] PSFD fact. no. 14.
Opposition at 7-9. The evidence that purportedly supports these facts is identified in Plaintiff‘s
Disputed Facts and attached as exhibits to the Kitay Declaration.
16

1

brought the issue of the discrepancies to his supervisor, who reviewed and approved the filing of

2

the petition.‖ Id.
Plaintiff further asserts that Probation Officer Cardoza is not immune from liability

3
4

because immunity requires the exercise of due care, and there is evidence that Probation Officer

5

Cardoza did not exercise due care, namely, that he saw notes in the Probation Department file

6

suggesting Plaintiff‘s probation had been terminated but did not investigate the discrepancy.

7

Opposition at 17-18.
Plaintiff also argues that there are material issues of fact as to whether Public Defender

8
9

Mont and the Office of the Public Defender acted negligently in handling Plaintiff‘s case. Id. at
18. Plaintiff points to six theories of negligence that he contends raise material issues of fact. Id.

11

United States District Court
Northern District of California

10

First, Public Defender Clark could have requested a short continuance of the July 21, 2009

12

hearing to retrieve the Public Defender‘s Office file and ―could easily have requested the internal

13

court file, and could easily have requested the transcript from the hearing on 04/22/2008 in the

14

same manner in which Public Defender Mont eventually did on 7/31/2009.‖ Id.8 Had Public

15

Defender Clark done these things, Plaintiff contends, he would have discovered the hearing notes

16

indicating that probation had been terminated and asked the Court to retrieve its internal file (as

17

was eventually done on July 31, 2009). Id.
Second, Plaintiff argues that the Public Defender‘s Office acted negligently based on the

18
19

complete failure of Public Defender Clark and Public Defender Mont to communicate prior to the

20

July 28, 2009 hearing. Id. 9

21
22
23
24
25
26
27
28

8

There is no evidence in the record that Public Defender Mont requested (or obtained) the
hearing transcript from the April 22, 2008 hearing.
9
In Plaintiff‘s Amended Statement of Facts in Dispute in Support of Opposition to MSJ
(―Plaintiff‘s Disputed Facts‖), Plaintiff states that ―Public Defender Mont did not speak to, or
otherwise communicate with, Pub. Defender Clark, prior to the hearing on 07/28/2009 regarding
the probation termination issue, and has no knowledge or recollection of whether she reviewed
Clark‘s notes (face sheet) in the file from the hearing on 07/21/2009 regarding this issue.‖
Plaintiff‘s Disputed Facts, No. 8 (citing Mont Depo. at 24); see also Plaintiff‘s Disputed Facts,
No. 11 (―Public Defender Mont has no recollection of preparing for the hearing on 07/28/2009 by
reviewing [Plaintiff‘s] prior probation revocation file, or the notes prepared by Clark from the
hearing on 07/21/2009‖)(citing Mont Depo. at 20, 21, 22, 24).
17

Third, Plaintiff asserts that Public Defender Mont failed to prepare for the July 28, 2009

1
2

hearing in ―any way.‖ Id. Further, Plaintiff contends that he testified at his deposition that he

3

told Public Defender Mont when she came to the jail, prior to the July 28, 2009 hearing, that his

4

probation had been terminated, but Public Defender Mont could not recall whether Plaintiff had

5

advised her prior to that hearing that his probation was terminated, could not recall reviewing the

6

file from the July 21, 2009 hearing and did not recall having any discussion with Public Defender

7

Clark prior to the hearing. Id.10
Fourth, Plaintiff asserts that Public Defender Mont acted negligently when she advised

8
9
10

Plaintiff to enter a guilty plea to the probation revocation petition even though his probation had
been terminated and therefore, his guilt was ―factually and legally impossible.‖ Id. at 19-20.
Fifth, Plaintiff contends that the Public Defender‘s Office is subject to liability for the

United States District Court
Northern District of California

11
12

manner in which it maintains its files. Id. at 20. In particular, Plaintiff argues that ―there is no

13

rational or reasonable explanation for why the Public Defender‘s office would maintain separate

14

files even though this really was the same case, with the same probation, and based on the same

15

underlying conviction.‖ Id.11
Sixth, Plaintiff argues that there is liability because Public Defender Mont failed to

16
17

adequately prepare for the July 28, 2009 hearing. Id.
Plaintiff also rejects Defendants‘ contention that in order to prevail on his malpractice claim

18
19

he must present expert testimony. Id. at 20-22 (citing Tibor v. Sup. Ct., 52 Cal. App. 4th 1359,

20

1364 (1997)). According to Plaintiff, no expert opinion is necessary to establish liability on

21
22
23
24
25
26
27
28

10

In Plaintiff‘s Disputed Facts, he states that ―Plaintiff testified that he told Public Defender Mont
about the probation revocation issue when she interviewed him at the jail prior to the hearing on
07/28/2009.‖ Plaintiff‘s Disputed Facts, No. 10 (citing Hernandez Depo. at 80-82). As noted
above, these pages of the Hernandez deposition were also provided by Defendants. See Whitman
Decl., Ex. A (pages 80, 82); Whitman Supp. Decl., Ex. A (page 81).
11
In Plaintiff‘s Disputed Facts, he states that ―[t]he Public Defender‘s office maintains separate
files for each probation revocation charge, even though it is related to the same underlying
conviction and based upon the same underlying probation and sentence.‖ Plaintiff‘s Disputed
Facts, No. 15 (citing Mont Depo. at 21-22); see also Whitman Decl., Ex. C (Mont Depo.) at 2122.
18

1

Plaintiff‘s malpractice claim because the facts establish that Public Defender Mont engaged in

2

―no diligence‖ in connection with Plaintiff‘s case. Id.

3

Finally, Plaintiff argues that there is evidence to support both direct and vicarious liability

4

on the part of the County. Id. at 22-23. There is vicarious liability, Plaintiff contends, because

5

under Cal. Gov‘t Code Sections 815.2, 825 and 825.6, an employer is liable for the acts of its

6

employees if the employee did not act with reasonable care. Id. at 22. According to Plaintiff,

7

because neither Probation Officer Cardoza nor Public Defender Mont used reasonable care, the

8

County can be held vicariously liable for their conduct. Plaintiff further asserts that there are

9

―multiple levels of direct liability that attaches [sic] to the conduct of the Public Defender‘s

10

United States District Court
Northern District of California

11

office, which is an arm of the County of Contra Costa.‖ Id. at 23.
E. Reply

12

In their Reply brief, Defendants argue that six of the purported ―facts‖ in Plaintiff‘s

13

Opposition are unsupported by any evidence. Reply at 1. In particular, Defendants argue that: 1)

14

there is no evidence that Probation Officer Cardoza could have obtained a transcript of the April

15

22, 2008 hearing, as the undisputed facts show that he did not know if the transcript was available

16

(UMF 37); 2) there is no evidence of the Probation Department policies or procedures to deal

17

with discrepancies between notes in the file and court orders, as Probation Officer Cardoza

18

testified that he was unaware of any such procedures (UMF 36); 3) there is no evidence that

19

Public Defender ―reviewed nothing‖ before the July 28, 2009 hearing, engaged in ―no diligence‖

20

or failed to review Plaintiff‘s current revocation file or Public Defender Clark‘s notes, as the

21

undisputed facts show that Public Defender Mont did interview Plaintiff (UMF 50), did review

22

the current file (because that‘s what she always does) and does not remember whether she

23

reviewed Mr. Clark‘s notes (UMF 50, 59); 4) there is no evidence that Hernandez told Public

24

Defender Mont prior to the July 28, 2009 hearing that his probation had been terminated because

25

the undisputed facts show that he did not tell Public Defender Mont that his probation had been

26

terminated until after the July 28, 2009 hearing (UMF 61-63); 5) there is no evidence that the July

27

28, 2009 hearing was an adversarial probation revocation hearing because Plaintiff had waived

28

the right to such a hearing (UMF 54) and 6) there is no evidence that Public Defender Mont
19

1

obtained a transcript of the April 22, 2008 hearing or presented it to Judge Hiramoto on July 31,

2

2009, as that did not occur. Id.
In addition, Defendants assert evidentiary objections to Exhibits 7-9 of the Kitay

3
4

Declaration, containing excerpts from the depositions of Plaintiff, Public Defender Mont and

5

Probation Officer Cardoza. Id. at 2. According to Defendants, these excerpts should not be

6

considered because they are not accompanied by signed court reporters‘ certificates certifying

7

their authenticity. Id. at 2 (citing Orr v. Bank of America, 285 F.3d 764, 774 (9th Cir. 2002)).12

8

In response to Plaintiff‘s arguments relating to his false arrest claim under §1983 (Claim

9

Two), Defendants argue that Plaintiff has conceded that Probation Officer Cardoza had
reasonable belief that Plaintiff violated his probation. Id. at 3. Defendants reject Plaintiff‘s

11

United States District Court
Northern District of California

10

argument that there are fact questions as to whether Probation Officer Cardoza conducted a due

12

diligence investigation, reiterating their argument that there is no such duty. Id. Even if there

13

were, Defendants argue, it is sheer speculation on Plaintiff‘s part that the Probation Department

14

file contained notes indicating that Plaintiff‘s probation had been terminated. Id. at 4 (citing T.W.

15

Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir. 1987)). In

16

particular, although Probation Officer Cardoza testified that he noticed a ―discrepancy‖ in the file,

17

there is no evidence as to the type of discrepancy he noticed. Id. Further, Defendants note that

18

Plaintiff failed to address the authority cited by Defendants on the question of absolute and

19

qualified immunity, both of which apply, according to Defendants. Id. at 5. Similarly, Defendants

20

note, Plaintiff does not challenge Defendants‘ assertion that he has failed to allege or provide any

21

evidence that the County is liable for the alleged constitutional violation under Monell.
Regarding Claim Six, the state law false arrest/ false imprisonment claim, Defendants

22
23

argue, as they do with respect to the federal claim, that the undisputed evidence shows that

24

Probation Officer Cardoza had probable cause to believe that Hernandez had violated his

25

probation and that there is no duty of due diligence. Id. at 6. Defendants reject Plaintiff‘s

26

contention that the County can be directly liable under state law for the acts of Probation Officer

27

Cardoza, arguing that Plaintiff has failed to cite to a specific statute authorizing the imposition of

28

12

As noted in footnote 4, above, the Court need not reach this objection.
20

1

tort liability. Id. Defendants also argue that the doctrine of res judicata does not apply because

2

the only question decided by Judge Hiramoto was whether Plaintiff should remain in custody. Id.

3

at 6-9.

4

Defendants argue that the malpractice claim (Claim Four) fails because Plaintiff has failed
to cite any authority distinguishing the cases cited by Defendants requiring that expert testimony

6

be introduced in support of this claim. Id. at 9. Further, Defendants argue that Public Defender

7

Mont ―easily‖ satisfies the standard of care. Id. at 9-12. According to Defendants, Plaintiff does

8

not identify any genuine disputed facts that are material to the malpractice claim. Id. at 9.

9

Further, Defendants reject Plaintiff‘s contention that there is evidence that Hernandez told Public

10

Defender Mont that his probation had been terminated before the July 29, 2009 hearing. Id. at 10.

11

United States District Court
Northern District of California

5

According to Defendants, Plaintiff relies on testimony by Hernandez that he had discussed

12

termination of his probation with the Public Defender, but the question was framed to cover the

13

entire time he was represented by the Public Defender in connection with the petition to revoke

14

probation, that is, from July 21, 2009 to July 31, 2009. Id. at 10 (citing Whitman Supp. Decl., Ex.

15

A (Hernandez Depo.) at 80-81). Defendants assert that the only direct evidence is that Hernandez

16

only discussed the termination of his probation on two occasions, namely, on July 21, 2009, with

17

Public Defender Clark, and sometime after the July 28, 2012 hearing, when he talked to Public

18

Defender Mont on the telephone. Id. (citing UMF 46, 61-63). As to the assertion that Public

19

Defender Mont failed to meet her duty of care because she didn‘t review the notes of Public

20

Defender Clark in the Public Defender‘s file, Defendants contend this argument is speculative

21

because there is no evidence that the file contained such notes. Id. at 11. Defendants also reject

22

Plaintiff‘s assertion that the evidence shows that Public Defender Mont ―fail[ed] to prepare in any

23

way,‖ pointing to the evidence that she interviewed Hernandez prior to the hearing, that she

24

reviewed the current probation file, and that she did not remember if she reviewed Mr. Clark‘s

25

notes. Id. at 12 (citing UMF 50 and Whitman Decl., Ex. C (Mont Depo.) at 21).

26

Defendants reject Plaintiff‘s assertion that the County can be held vicariously liable for

27

Public Defender Mont‘s alleged malpractice because the claim fails as to Public Defender Mont

28

for the reasons discussed above. Id. at 12. Defendants further assert that there is no statute that
21

1

allows for the imposition of direct liability on the County as to this claim. Id. As to the

2

malpractice claim against the Office of the Public Defender, Defendants argue that this is not a

3

separate legal entity that is amenable to suit. Id. at 13. Further, to the extent Plaintiff argues in

4

his Opposition that the Probation Department can be held liable for the conduct of Public

5

Defender Dan Clark, that claim fails because Clark was not named in the amended complaint as a

6

defendant and in any event, such a claim would fail because it is undisputed that Public Defender

7

Clark raised the issue of the termination of Plaintiff‘s probation at the July 21, 2009 hearing.
Finally, Defendants contend that Plaintiff failed to respond to their argument regarding the

8

negligence claim (Claim Eight), namely, that there is no statutory basis for suing the County for

10

negligence and County employees are immune from such claims under Cal. Gov‘t Code Section

11

United States District Court
Northern District of California

9

821.6. Therefore, Defendants assert that they are entitled to summary judgment as to that claim.
F. Motion to Strike

12

Defendants ask the Court to Strike Plaintiff‘s Disputed Facts on the ground that it violates

13
14

this Court‘s standing order prohibiting the filing of separate statements of undisputed facts, as

15

well as Docket No. 80, in which the Court stated that a previous version of this document

16

―amount[ed] to a separate statement of undisputed facts.‖ Motion to Strike at 1. Defendants also

17

ask the Court to strike the six purported factual assertions that Defendants contend are

18

unsupported by any evidence (discussed above).

19

III.

20
21

ANALYSIS
A. Motion to Strike
Having reviewed Plaintiff‘s Disputed Facts, the Court concludes that it is not a separate

22

statement of undisputed facts but instead, merely a list of the facts that Plaintiff contends remain

23

in dispute. Therefore, the Court finds that the document does not run afoul of the Court‘s

24

standing order. Further, while the document may be inconsistent with the Court‘s previous order,

25

in the interest of deciding Defendants‘ Motion on the merits, the Court declines to strike

26

Plaintiff‘s Disputed Facts, as it is the only document that identifies the specific evidence that

27

Plaintiff contends gives rise to genuine disputes of material fact.

28

22

1

The Court also declines to strike the six purported facts that Defendants contend are

2

unsupported by the evidence. While the Court may or may not accept Plaintiff‘s characterization

3

of the evidence in the record, it is not necessary for the Court to strike them. See Fed. R. Civ. P.

4

Rule 12(f) (providing that the court may strike from a pleading ―any insufficient defense or any

5

redundant, immaterial, impertinent or scandalous matter‖); see also Whittlestone, Inc. v. Handi-

6

Craft Co., 618 F.3d 970, 973 (9th Cir. 2010)(―The function of a 12(f) motion to strike is to avoid

7

the expenditure of time and money that must arise from litigating spurious issues by dispensing

8

with those issues prior to trial‖).

9
10

United States District Court
Northern District of California

11

Accordingly, the Motion to Strike is DENIED.
B. Legal Standard under Rule 56
Summary judgment is proper where the pleadings, discovery and affidavits show that there

12

is ―no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

13

law.‖ Fed.R.Civ.P. 56(a). Courts will grant summary judgment ―against a party who fails to

14

make a showing sufficient to establish the existence of an element essential to that party‘s case,

15

and on which that party will bear the burden of proof at trial . . . since a complete failure of proof

16

concerning an essential element of the nonmoving party‘s case necessarily renders all other facts

17

immaterial.‖ Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); see also Anderson v. Liberty

18

Lobby, Inc., 477 U.S. 242, 248 (1986) (holding that a fact is material if it might affect the

19

outcome of the suit under governing law, and a dispute about a material fact is genuine ―if the

20

evidence is such that a reasonable jury could return a verdict for the nonmoving party‖). It is not

21

the Court‘s function on a summary judgment motion to make credibility determinations or weigh

22

conflicting evidence with respect to a disputed material fact. See T.W. Elec. Serv. v. Pacific Elec.

23

Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.1987). Rather, the Court views the evidence in the

24

light most favorable to the nonmoving party, and views any inferences drawn from the facts in a

25

light most favorable to the nonmoving party. See id. at 631.

26
27
28

C. The False Arrest/ False Imprisonment Claim under 42 U.S.C. § 1983 (Claim Two)
Plaintiff alleges that Probation Officer Cardoza deprived him of his rights under the
Fourth Amendment to be free of unreasonable search and seizure when he filed a petition to
23

1

revoke his probation, which amounted to false arrest and/or false imprisonment without probable

2

cause. FAC, ¶ 36. He further alleges that the County and the Probation Department are

3

vicariously liable for the alleged constitutional violation. The Court concludes that Defendants

4

are entitled to summary judgment on this claim because Plaintiff has failed to establish a genuine

5

dispute of material fact as to the alleged violation of Plaintiff‘s Fourth Amendment rights, and in

6

any event, Defendants are entitled qualified immunity on this claim.

7

1. Legal Standards

8

a. Section 1983
Section 1983 provides a cause of action against any person who, under color of state law,

10

deprives another of any rights, privileges, or immunities secured by the Constitution and laws of

11

United States District Court
Northern District of California

9

the United States. Section 1983 is not a source of substantive rights, but merely a method for

12

vindicating federal rights established elsewhere. Graham v. Connor, 490 U.S. 386, 393-94

13

(1989). In order to state a claim for a violation of § 1983, a plaintiff must allege deprivation of a

14

constitutional right by a government official acting ―under the color of state law.‖ Broam v.

15

Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003).

16

b. Qualified Immunity

17

Qualified immunity protects government officials performing discretionary functions

18

―from liability for civil damages insofar as their conduct does not violate clearly established

19

statutory or constitutional rights of which a reasonable person would have known.‖ Harlow v.

20

Fitzgerald, 457 U.S. 800, 818 (1982) (emphasis added). ―Qualified immunity balances two

21

important interests—the need to hold public officials accountable when they exercise power

22

irresponsibly and the need to shield officials from harassment, distraction, and liability when they

23

perform their duties reasonably.‖ Pearson v. Callahan, 555 U.S. 223, 231 (2009). The Supreme

24

Court has stated that the ―driving force behind the creation of the qualified immunity doctrine was

25

a desire to ensure that insubstantial claims against government officials will be resolved prior to

26

discovery.‖ Id. (internal citations omitted). Thus, courts should resolve questions of qualified

27

immunity ―at the earliest possible stage in litigation.‖ Id. at 231-32 (citing Hunter v. Bryant, 502

28

U.S. 224, 227 (1991)).
24

To determine whether a defendant is entitled to qualified immunity , courts consider: (1)

1

whether there was a deprivation of a constitutional or statutory right, and (2) whether that

3

constitutional or statutory right was ―clearly established‖ at the time of the incident. See Saucier

4

v. Katz, 533 U.S. 194, 200-201 (2001). In Saucier, the Supreme Court held that district courts

5

must first determine whether there was a violation of the plaintiff‘s constitutional rights, and only

6

then determine whether that right was ―clearly established.‖ Id. However, in Pearson v.

7

Callahan, 555 U.S. 223, 242 (2009), the Supreme Court revisited the rule announced in Saucier

8

requiring courts to address the two questions in sequence and found that it ran afoul of the

9

―general rule of constitutional avoidance and . . . [ran] counter to the older, wiser judicial counsel

10

not to pass on questions of constitutionality unless such adjudication is unavoidable. ‖ Id. at 241

11

United States District Court
Northern District of California

2

(citations and quotations omitted). Accordingly, the Court abrogated the rule, holding that ―the

12

judges of the district courts and the courts of appeals are in the best position to determine the

13

order of decisionmaking that will best facilitate the fair and efficient disposition of each case.‖ Id.

14

at 242.

15
16

c. Quasi-Judicial Immunity
―It is well established that state judges are entitled to absolute immunity for their judicial

17

acts.‖ Swift v. State of California, 384 F.3d 1184, 1188 (9th Cir. 2004)(citing Pierson v. Ray, 386

18

U.S. 547, 553-554 (1967)). Further, judicial immunity may be extended to other officials if their

19

―judgments are ‗functional[ly] comparab[le]‘ to those of judges ˗ that is, because they, too,

20

‗exercise a discretionary judgment‘ as part of their function.‖ Id. (quoting Antoine v. Byers &

21

Anderson, Inc., 508 U.S. 429, 436 (1993) (quotation omitted)). The Ninth Circuit has held that

22

the preparation of presentence reports by probation officers is covered by the judicial immunity

23

doctrine because in preparing these reports, probation officers act as ―an arm of the sentencing

24

judge‖ and therefore serve a function ―integral to the independent judicial process.‖ Demoran v.

25

Witt, 781 F.2d 155, 157-158 (1986).

26

On the other hand, ―parole officials are not ‗entitled to absolute immunity for conduct not

27

requiring the exercise of quasi-judicial discretion.‘‖ Swift, 384 F.3d at 1189 (quoting Anderson v.

28

Boyd, 714 F.2d 906, 909 (9th Cir. 1983)). Thus, in Swift, the court held that the plaintiff stated a
25

1

claim under § 1983 based on alleged violation of his Fourth Amendment rights by probation

2

officers who had requested an order revoking the plaintiff‘s probation, finding that those

3

defendants were not entitled to quasi-judicial immunity based on the facts alleged in the

4

complaint. Id. at 1193. In particular, the court found that, construing the allegations in the light

5

most favorable to the plaintiff, the probation officers were performing a non-judicial function,

6

―more akin to a police officer seeking an arrest warrant than to a prosecutor exercising quasi-

7

judicial discretion to initiate criminal proceedings.‖ Id. at 1193; see also Davis v. Spier, 2008

8

WL 1746165 (D. Ariz. April 14, 2008) (holding that probation officer who allegedly submitted

9

probation revocation petition on the basis of conduct that probation officer should have known
could not have been committed by the plaintiff and requested that court authorize plaintiff‘s arrest

11

United States District Court
Northern District of California

10

prior to probation revocation hearing was not entitled to quasi-judicial immunity because his

12

conduct was more akin to that of police officer than that of prosecutor deciding whether to initiate

13

proceedings, citing, inter alia, Swift); Puentes v. County of San Mateo, 2011 WL 4005383 (N.D.

14

Cal. Sept. 8, 2011) (holding that whether absolute immunity attached to a probation officer‘s

15

recommendation to county that plaintiff be cited for a probation violation presented a close

16

question, citing Davis v. Spier, but declining to reach). 13
d. Relevant Constitutional Violation

17

Plaintiff asserts his § 1983 claim on the basis of an alleged violation of the Fourth

18
19

Amendment right to be free from arrest or imprisonment without probable cause. Although the

20

parties do not address the issue, it appears that Plaintiff has failed to assert the appropriate

21

constitutional theory in light of the undisputed facts of this case. In particular, because Plaintiff

22

was detained pursuant to a court order based on the Petition to Revoke Probation, the Court

23
13

24
25
26
27
28

The Court notes that in Demoran, the Ninth Circuit explained that the Supreme Court‘s
decision in Cleavinger v. Saxner, 474 U.S. 193 (1985), required it to ―reevaluate our prior
holding‖ in Burkes v. Callion, 433 F.2d 318, 319 (9th Cir. 1970) (holding broadly that probation
officers preparing reports for state courts possess absolute judicial immunity). The Court is
trouble by Defendants‘ reliance on Burkes in support of their argument that absolute judicial
immunity applies to the actions of Probation Officer Cardoza without any citation to subsequent
Ninth Circuit cases that significantly narrowed the Burkes holding, including Demoran. The
Court also finds that Defendants‘ failure to cite to the Swift decision, which is closely on point,
violated Defendants‘ obligation to cite to authority contrary to their position that is on point.
26

1

concludes that the applicable constitutional violation, if any, is one for malicious prosecution

2

rather than false arrest or imprisonment.

3
4
5
6
7
8
9

In Wallace v. Kato, the Supreme Court distinguished false imprisonment from malicious
prosecution as follows:
False arrest and false imprisonment overlap; the former is a species of the latter. ―Every
confinement of the person is an imprisonment, whether it be in a common prison or in a
private house, or in the stocks, or even by forcibly detaining one in the public streets; and
when a man is lawfully in a house, it is imprisonment to prevent him from leaving the
room in which he is.‖ M. Newell, Law of Malicious Prosecution, False Imprisonment, and
Abuse of Legal Process § 2, p. 57 (1892) (footnote omitted). See also 7 S. Speiser, C.
Krause, & A. Gans, American Law of Torts § 27:2, pp. 940-942 (1990). We shall thus
refer to the two torts together as false imprisonment.
...

11

United States District Court
Northern District of California

10

Reflective of the fact that false imprisonment consists of detention without legal process, a
false imprisonment ends once the victim becomes held pursuant to such process--when,
for example, he is bound over by a magistrate or arraigned on charges. 1 Dobbs, supra, §
39, at 74, n. 2; Keeton, supra, § 119, at 888; H. Stephen, Actions for Malicious
Prosecution 120-123 (1888). Thereafter, unlawful detention forms part of the damages for
the “entirely distinct” tort of malicious prosecution, which remedies detention
accompanied, not by absence of legal process, but by wrongful institution of legal process.
Keeton, supra, § 119, at 885-886; see 1 F. Harper, F. James, & O. Gray, Law of Torts §
3.9, p. 3:36 (3d ed.1996); 7 Speiser, supra, § 27:2, at 943-945. ―If there is a false arrest
claim, damages for that claim cover the time of detention up until issuance of process or
arraignment, but not more. From that point on, any damages recoverable must be based on
a malicious prosecution claim and on the wrongful use of judicial process rather than
detention itself.‖ Keeton, supra, § 119, at 888; see also Heck, supra, at 484, 114 S.Ct.
2364; 8 Speiser, supra, § 28:15, at 80.

12
13
14
15
16
17
18
19
20

549 U.S. 538 384 (2007)(emphasis added).

21

Thus, where it is alleged that a probation officer has wrongfully requested that a court

22

revoke probation, the relevant constitutional violation is malicious prosecution. See ,e.g., Rose v.

23

Goldman, 2009 WL 4891810, at *8 (E.D.N.Y. Dec. 16, 2009) (malicious prosecution claim based

24

on probation officer‘s filing of violation of probation with court); see also Watson v. Albin, 551

25

F. Supp. 2d 954, 960 (N.D. Cal. 2008) (holding that while malicious prosecution claims are

26

generally not cognizable under § 1983, there is an exception to this rule for claims based on

27

prosecutions that were intended to subject a person to denial of constitutional rights and that this

28

exception applies in cases of incarceration). On the other hand, where it is alleged that a
27

1

probation officer wrongfully detained or arrested an individual on the basis of a probation

2

violation without a court order, the applicable constitutional violation will be false imprisonment.

3

See, e.g., Quinn v. Fresno County Sherriff, 2012 2052162, at *8 (E.D. Cal. June 6, 2012) (treating

4

alleged constitutional violation based on probation officer‘s involvement in booking plaintiff for

5

purported probation violation without a court order as a § 1983 claim based on false

6

imprisonment).

7

While the tests for establishing wrongful imprisonment and malicious prosecution differ,
however, the result is the same in this case because, whether Claim Two is framed as a false

9

arrest/imprisonment claim or a malicious prosecution claim, it requires that Plaintiff establish a

10

lack of probable cause. See Knapps v. City of Oakland, 647 F.Supp.2d 1129, 1160 (N.D.Cal.,

11

United States District Court
Northern District of California

8

2009)(―In order to prevail on a § 1983 claim for malicious prosecution, Plaintiff must establish

12

that the action was (1) commenced by or at the direction of the defendant and was pursued to a

13

legal termination in his favor, (2) brought without probable cause; and (3) initiated with malice‖);

14

Lacy v. County of Maricopa, 631 F.Supp.2d 1183, 1193 (D.Ariz., 2008) (―Probable cause to arrest

15

or detain is an absolute defense to any claim under § 1983 . . . as the lack of probable cause is a

16

necessary element of each‖). As discussed below, Plaintiff fails to establish a genuine dispute of

17

material fact as to probable cause.

18
19
20

2. Application of Legal Standards
a. Whether Probation Officer Cardoza is Entitled to Quasi-Judicial
Immunity
The Court rejects Defendants‘ assertion that the actions of Probation Officer Cardoza, and in

21

particular, his filing of a petition to revoke Plaintiff‘s probation, is protected under the doctrine of

22

judicial immunity. Although such immunity applies where probation officers act as extensions of

23

the court, for instance, in the preparation of presentence reports, the Ninth Circuit, as well as at

24

least one district court, have held that a probation officer‘s petition to revoke probation is

25

generally more akin to a police officer‘s request for a search warrant than an exercise of

26

prosecutorial discretion. See Swift, 384 F.3d at 1192-1193; Davis, 2008 WL 1746165, at * 3. As

27

Defendants have offered no evidence suggesting that the facts here are distinguishable from those

28

in Swift and Davis, or indeed, even acknowledged that the actions of probation officers are
28

1

entitled to judicial immunity only where they are serving judicial functions, the Court rejects

2

Defendants‘ assertion that judicial immunity applies to the actions of Probation Officer Cardoza.

3

See Burns v. Reed, 500 U.S. 478, 486-487 (1991) (―[T]he official seeking absolute immunity

4

bears the burden of showing that such immunity is justified for the function in question. The

5

presumption is that qualified rather than absolute immunity is sufficient to protect government

6

officials in the exercise of their duties‖).

7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

b. Whether Defendants are Entitled to Summary Judgment on Claim
Two Because the Undisputed Facts Show that Probation Officer
Cardoza Had Probable Cause or Because he did not Violate a Clearly
Established Right
In Beck v. Ohio, 379 U.S. 89, 91 (1964), the Supreme Court defined probable cause as
―knowledge or reasonably trustworthy information sufficient to lead a person of reasonable
caution to believe that an offense has been or is being committed by the person being arrested.‖
Courts look to ―the totality of the circumstances known to the arresting officers, [to determine if]
a prudent person would have concluded there was a fair probability that [the defendant] had
committed a crime.‖ United States v. Smith, 790 F.2d 789, 792 (9th Cir. 1986). ―Probable cause
is an objective standard and the officer‘s subjective intention in exercising his discretion to arrest
is immaterial in judging whether his actions were reasonable for Fourth Amendment purposes.‖
John v. City of El Monte, 515 F.3d 936, 940 (9th Cir. 2008) (citing United States v. Lopez, 482
F.3d 1067, 1072 (9th Cir. 2007)).
Here, Plaintiff does not dispute that Probation Officer Cardoza had probable cause to
believe that Hernandez had consumed alcohol on the night of May 22, 2009. Indeed, it is
undisputed that Hernandez admitted to Officer Berkley on the night of May 22, 2009 that he had
been drinking malt liquor. UMF 22. Nor does Plaintiff dispute that prior to submitting the
Petition to Revoke Probation, Probation Officer Cardoza had reviewed facially valid court orders
stating that Plaintiff remained on active probation and under the terms of that probation, was
prohibited from drinking alcohol. See UMF 33. Rather, Plaintiff contends that probable cause
was lacking because Probation Officer Cardoza may have seen notes in the Probation Department
file indicating that the court orders were not valid. Without reaching the question of whether file
29

1

notes indicating that a court order was incorrect could ever defeat probable cause, the Court finds

2

that the evidence here is insufficient to create a genuine dispute of fact. Plaintiff has cited only to

3

Probation Officer Cardoza‘s testimony that there was a ―discrepancy‖ in the Probation

4

Department‘s file, but has offered no evidence as to the nature of that discrepancy. See Whitman

5

Decl., Ex. B (Cardoza Depo.) at 29-30. No reasonable jury could conclude, in the face of this

6

scant evidence, that Probation Officer Cardoza ˗ having reviewed the facially valid court orders

7

indicating Hernandez was on active probation ˗ did not have probable cause to believe that

8

Hernandez had violated the terms of his probation. See T.W. Elec. Service, Inc. v. Pacific Elec.

9

Contractors Ass'n, 809 F.2d 626, 631-632 (9th Cir. 1987) (―[i]nferences from the nonmoving
party‘s ‗specific facts‘ as to other material facts, however, may be drawn only if they are

11

United States District Court
Northern District of California

10

reasonable in view of other undisputed background or contextual facts and only if such inferences

12

are otherwise permissible under the governing substantive law‖).

13

Further, even assuming there were notes in the Probation Department file indicating that

14

Plaintiff‘s probation had been terminated, Plaintiff has cited no authority suggesting that a

15

Probation Officer may not rely on a facially valid court order reflecting the terms of an

16

individual‘s probation. Because there is no clearly established constitutional or statutory duty

17

requiring Probation Officer Cardoza to look beyond the court orders, the Court concludes that the

18

conduct of Probation Officer Cardoza is protected under the doctrine of qualified immunity.

19

The Court rejects Plaintiff‘s assertion that the question of probable cause was decided by

20

Judge Hiramoto when she found that Hernandez had been wrongfully taken into custody. The

21

Court applies California law to determine the preclusive effect of the California state court

22

decision. See Kay v. City of Rancho Palos Verdes, 504 F.3d 803, 808, n. 5 (9th Cir., 2007).

23

Under California law, courts ask three questions: (1) was the previous adjudication on the merits,

24

(2) was it final, and (3) does the current dispute involve the same ‗claim‘ or ‗cause of action‘? Id.

25

(citations omitted). While Judge Hiramoto wrote that Hernandez should be released because he

26

had been wrongfully taken into custody, there is no indication that she addressed the question that

27

is relevant here, namely, whether Probation Officer Cardoza had a reasonable basis for believing,

28

at the time he filed the Petition to Revoke Probation, that Hernandez remained on active
30

1

probation. As there is no indication that Judge Hiramoto made any finding on that question, her

2

order has no preclusive effect in this action.
The Court also rejects Plaintiff‘s assertion that Probation Officer Cardoza had a duty of

3
4

diligence to investigate whether the court orders were valid. Plaintiff has cited no authority

5

reflecting such a duty in the Fourth Amendment context and the Court has found none.14
Therefore, the Court finds that Defendants are entitled to summary judgment against

6
7

Plaintiff on Claim Two.15
D. False Imprisonment/False Arrest Claim under State Law (Claim Six)

8

Defendants contend that they are entitled to summary judgment on Plaintiff‘s state law false

10

imprisonment/ false arrest claim against Probation Officer Cardoza because: 1) Probation Officer

11

United States District Court
Northern District of California

9

Cardoza had probable cause to believe Hernandez had violated the terms of his probation; 2) an

12

arrest is not ―false‖ under California law if the confinement was legally authorized under valid;

13

and 3) state law does not impose a duty to investigate on probation officers before submitting a

14
14

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

The Court notes that Defendants argue, at some length, that the Ninth Circuit‘s decision in
Allston v. Reed, 663 F.3d 1094, 1096 (9th Cir. 2011), as well as the district court‘s decision in
Mullenbach v. Gardner, 2012 WL 693040, at * 10 (D.Idaho, Feb. 9, 2012), establish that there is
no duty to investigate under the circumstances here. The Court does not agree with Defendants‘
reading of those cases. In particular, in both, the court made clear that prison officials who had
miscalculated a prisoner‘s sentence did not have a duty to investigate where there was no reason
to question the correctness of their calculations. Thus, in Allston, for example, the court found
that there was no obligation to obtain the original court files when the institutional file appeared
to be complete. 663 F.3d at 1099. However, the court acknowledged that in situations where
there was documentary evidence available to the prison officials that should have put them on
notice of the error, there might be a duty to investigate. Id. (distinguishing Haygood v. Younger,
769 F.2d 1350 (9th Cir. 1985) (en banc) and Alexander v. Perrill, 916 F.2d 1392 (9th Cir. 1990)).
Whatever Allston and Mullenbach stand for, however, they do not have any bearing on Probation
Officer Cardoza‘s obligations under the Fourth Amendment as neither case involves an alleged
Fourth Amendment violation.
15
Even if Plaintiff were able to establish a constitutional violation by Probation Officer Cardoza,
Defendants would be entitled to summary judgment on this claim as to the County and the
Probation Department because Plaintiff has failed to present evidence of any policy or custom
pursuant to which Probation Office Cardoza was acting, as required under Monell v. Dep’t of
Social Services, 436 U.S. 658, 691 (1978). In addition, Defendants are correct that the Probation
Department is not a ―person‖ or entity subject to suit under § 1983. See Murry v. Oakland Co.
Probation, 2009 WL 1259722, at * 2 (E.D.Mich., April 29, 2009) (county probation department
not an entity subject to suit under § 1983); Johnson v. Harris, 2009 WL 277992, *10 (E.D.Tenn.
Feb. 5, 2009) (same).
31

1

petition to revoke probation. Plaintiff ‗s state law false imprisonment claim fails if Probation

2

Officer Cardoza had probable cause to believe Plaintiff had violated the terms of his probation.

3

See Fermino v. Fedco, Inc., 7 Cal.4th 701, 716 (1994); Cal. Penal Code Section 1203.2. As

4

discussed above, the Court finds that Probation Officer Cardoza had probable cause. Therefore,

5

Defendants are entitled to summary judgment in their favor on this claim.

6

E. The Legal Malpractice Claim (Claim Four)

7

―In civil malpractice cases, the elements of a cause of action for professional negligence are:

8

‗(1) the duty of the attorney to use such skill, prudence and diligence as members of the

9

profession commonly possess; (2) a breach of that duty; (3) a proximate causal connection
between the breach and the resulting injury; and (4) actual loss or damage.‘‖ Wiley v. County of

11

United States District Court
Northern District of California

10

San Diego, 19 Cal.4th 532, 536 (1998) (quoting Schultz v. Harney, 27 Cal.App.4th 1611, 1621

12

(1994)). In Unigard Ins. Group v. O'Flaherty & Belgum, the court explained that ―[t]he

13

formulation of the standard of care is a question of law for the court‖ while ―its application to the

14

facts of the case is a task for the trier of fact if reasonable minds might differ as to whether the

15

defendants‘ conduct has conformed to the standard.‖ 38 Cal.App.4th 1229, 1237 (1995) (citing

16

Ramirez v. Plough, Inc., 6 Cal.4th 539, 546 (1993)). The court further held that ―[o]nly if the

17

circumstances permit no reasonable doubt about whether the attorney‘s conduct did or did not

18

violate the standard of care, may the court as a matter of law resolve the question whether an

19

attorney breached a duty to clients.‖ In the case of attorney malpractice, the ―crucial inquiry is

20

whether their advice and actions were so legally deficient when given that it demonstrates a

21

failure to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity

22

commonly possess and exercise in performing the tasks they undertake.‖ Id. (citation omitted).

23

California courts have held that ―[w]here a malpractice action is brought against an

24

attorney holding [herself] out as a legal specialist and the claim against the attorney relates to

25

[her] expertise, then only a person knowledgeable in the specialty can define the applicable duty

26

of care and render an opinion on whether it was met.‖ Stanley v. Richmond, 35 Cal.App.4th 1070,

27

1093 (1995) (citations omitted) (holding that expert testimony relating to standard of care

28

applicable to family law attorney was sufficient to create fact question and therefore reversing
32

1

nonsuit granted by trial court at the close of evidence in a jury trial and remanding for a new

2

trial). On the other hand, ―‘[w]here the failure of attorney performance is so clear that a trier of

3

fact may find professional negligence unassisted by expert testimony, then expert testimony is not

4

required.‘‖ Id. (quoting Wilkinson v. Rives, 116 Cal.App.3d 641, 647-648 (1981)).

5

Defendants rely on Tibor v. v. Superior Court, 52 Cal.App.4th 1359 (1997) in support of

6

their contention that Plaintiff‘s malpractice claim fails because he has presented no expert

7

testimony establishing that Public Defender Mont‘s conduct fell below the standard of care for a

8

criminal defense attorney. In Tibor, a public defender had been sued for malpractice for, inter

9

alia, failing to take the steps necessary to obtain DNA testing of his client, who had been charged
with rape, in a timely manner. 52 Cal. App. 4th at 1363. The defendant brought a motion for

11

United States District Court
Northern District of California

10

summary judgment, asserting that there was no evidence of malpractice and submitted his own

12

declaration stating generally that his representation was done with the ―skill, prudence, and

13

diligence consistent with the members of [his] profession‖ in his geographical area. Id. at 1364.

14

The trial court in Tibor addressed whether, in the face of the defendant‘s declaration, the

15

plaintiff was required to submit his own expert declaration addressing whether the defendant had

16

met the applicable duty of care. Id. at 1364 n.1. The court of appeal opined that plaintiffs under

17

such circumstances should be required to do so, reasoning that ―the policy reasons for requiring

18

such declarations in medical malpractice cases appear equally applicable in those cases involving

19

the alleged malpractice of a criminal defense attorney.‖ Id. The trial court also addressed

20

whether the declaration from the attorney defendant contained sufficient foundational facts to

21

render it reliable. Id. On that question, the court of appeal opined that the declarations did not

22

contain sufficient foundational facts to qualify him as an expert. Id. The trial court ultimately

23

concluded that there were triable issues of fact as to whether the defendant‘s representation fell

24

below the applicable standard of care, even though the plaintiff had not submitted expert

25

testimony. Id. at 1366-1367. On appeal, the court reversed summary judgment on another

26

ground but agreed with the trial court that there were triable issues of fact as to whether defendant

27

breached his duty of care. Id. at 1369-1370.

28

33

The Court concludes that here, the question of whether Public Defendant Mont‘s

1

representation fell below the applicable standard of care can only be established with expert

3

testimony. Plaintiff has offered no such expert testimony. Under Rule 56, a party who does not

4

bear the burden of proof at trial may discharge its burden on summary judgment either by

5

―produc[ing] evidence negating an essential element of the nonmoving party‘s case, or, after

6

suitable discovery, . . . [by] show[ing] that the nonmoving party does not have enough evidence

7

of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial.‖

8

Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1106 (9th Cir. 2000).16

9

Defendants have established that they are entitled to summary judgment on Claim Four by

10

showing that Plaintiff does not have enough evidence to prove an essential element of his

11

United States District Court
Northern District of California

2

malpractice claim.

12

The Court rejects Plaintiff‘s assertion that the facts here are so clear-cut that no expert

13

testimony is required. In support of this position, Plaintiff contends that there is evidence that

14

Public Defender Mont engaged in no diligence at all and further, that Plaintiff told Public

15

Defender Mont prior to the July 28, 2009 hearing that his probation had been terminated. The

16

undisputed facts, however, show that Public Defender Mont met with Hernandez prior to the July

17

28, 2012 hearing. UMF 50. Further, there is no evidence from which a reasonable jury could

18

conclude that Hernandez told Public Defender Mont prior to the July 28, 2009 hearing that his

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probation had been terminated. Plaintiff‘s Disputed Fact No. 10 cites pages 80 to 82 of

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Hernandez‘s deposition testimony in support of a contrary conclusion, but a review of that

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testimony reveals that Hernandez did not offer any testimony as to when he told Public Defender

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Mont that he was ―not supposed to be‖ in prison. See Kitay Decl., Ex. 7 (Hernandez Depo.) at

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The court notes that this standard differs from the summary judgment standard under
California law to the extent that California summary judgment law ―continues to require a
defendant moving for summary judgment to present evidence, and not simply point out that the
plaintiff does not possess, and cannot reasonably obtain, needed evidence.‖ Aguilar v. Atlantic
Richfield Co., 25 Cal.4th 826, 854-855 (2001). The Aguilar court explained that ―[i]n this
particular at least, [California law] still diverges from federal law.‖ Id.

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80-82. Indeed, it is not even clear from Plaintiff‘s testimony that he explained why he was not

2

supposed to be in custody to Public Defender Mont.
The Court also rejects Plaintiff‘s apparent reliance on the conduct of Public Defender

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4

Clark in his opposition brief in support of his malpractice claim. Plaintiff did not name Public

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Defender Clark as a defendant in this action and included no allegations in his First Amended

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Complaint that would have given notice that he intended to base his claim on the conduct of

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Public Defender Clark. Therefore, he cannot defeat summary judgment on the basis of Public

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Defender Clark‘s actions.
Because the Court finds that Plaintiff has not shown a genuine dispute of fact as to Public

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Defender Mont, the Court concludes that Defendants are also entitled to summary judgment as to

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United States District Court
Northern District of California

9

the Contra Costa Public Defender to the extent Plaintiff‘s claim is based on a theory of vicarious

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liability. Further, Plaintiff has not cited any authority suggesting that the Public Defender‘s

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Office is subject to direct liability. Therefore, the Court GRANTS Defendants‘ request for

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summary judgment as to Claim Four.17

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F. The Negligence Claim (Claim Eight)

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Plaintiff‘s negligence claim, as alleged in the First Amended Complaint, is based on the

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alleged failure of all of the Defendants to review his court file to determine whether his probation

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had been terminated. This claim fails, as a matter of law, for the following reasons. First, as to

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Public Defender Mont, this claim is based on her alleged negligent representation of Hernandez,

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which fails for the reasons stated above. Second, as to the County and the Office of the Public

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Defender (which is part of the County), the claim fails because these entities are entitled to

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immunity under Cal. Gov‘t. Code Section 81518 and Plaintiff has identified no specific statute that

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17

The Court declines to reach Defendants‘ assertion that Public Defender Mont, as a matter of
law, met the applicable duty of care. The Court notes, however, that Defendants, like Plaintiff,
did not provide any expert testimony that would offer guidance as to the standard of care as it
relates to the circumstances of this case.
18
Cal. Gov‘t. Code Section 815 provides, in relevant part, that ―[a] public entity is not liable for
an injury, whether such injury arises out of an act or omission of the public entity or a public
employee or any other person.‖
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1

allows for the imposition of liability. Third, Probation Officer Cardoza‘s conduct is subject to

2

immunity from Plaintiff‘s negligence claim under Cal. Gov‘t. Code Section 821.6.19

3

IV.

For the reasons stated above, the Motion is GRANTED. Plaintiff‘s remaining claims are

4
5

CONCLUSION

dismissed with prejudice at to all remaining Defendants.
IT IS SO ORDERED.

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Dated: November 6, 2012

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________________________
Joseph C. Spero
United States Magistrate Judge

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United States District Court
Northern District of California

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Cal. Gov‘t. Code 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.‖
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