Riese v. County of Del Norte et al

Filing 78

ORDER GRANTING DEFENDANT 31 ALEXANDERS ANTI-SLAPP MOTION AND GRANTING IN PART AND DENYING IN PART DEFENDANT 33 GRIFFINS ANTI-SLAPP MOTION by Judge William H. Orrick. Riese's Seventh and Eighth Causes of Action for malicious prosecution an d intentional infliction of emotional distress against Alexander are ordered stricken from the Complaint. Alexander is awarded $6256.25 in fees, payable by Riese within 45 days of this Order. Griffin is directed to file a supplemental declaration within ten days from this Order showing the amount of time his lawyers spent in preparing the meritorious and unmeritorious aspects of his motion to strike. (jmdS, COURT STAFF) (Filed on 9/3/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL RIESE,

Case No. 12-cv-03723-WHO

Plaintiff,
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v.
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COUNTY OF DEL NORTE, et al.,
Defendants.

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ORDER GRANTING DEFENDANT
ALEXANDER’S ANTI-SLAPP MOTION
AND GRANTING IN PART AND
DENYING IN PART DEFENDANT
GRIFFIN’S ANTI-SLAPP MOTION

United States District Court
Northern District of California

Re: Dkt. Nos. 31, 33
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INTRODUCTION
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Plaintiff Michael Riese alleges that defendants Jon Alexander and Richard Griffin engaged
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in a concerted effort to harass him and wrongfully target him for criminal investigation and
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prosecution. Alexander and Griffin have filed “anti-SLAPP” motions to strike the claims against

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them. This Order GRANTS Alexander‟s and Griffin‟s motions to strike the state law claims-- the
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Seventh Cause of Action (against Alexander) and the Eighth Cause of Action (against Alexander
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and Griffin)-- and DENIES Griffin‟s motion with respect to the First, Third, Fourth and Fifth
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Causes of Action alleged under 42 U.S.C. § 1983 (Section 1983). Alexander and Griffin are
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entitled to attorney‟s fees under California Code of Civil Procedure section 425.16(c).

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BACKGROUND
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Riese is a former District Attorney (“DA”) of Del Norte County. During the time that
Riese was DA, he “fired Defendant Alexander from his position as Deputy District Attorney after
determining that Alexander could no longer be employed as a Deputy DA while on probation.”
Compl. ¶ 22. According to Riese, his firing of Alexander “began a chain of events orchestrated by
Alexander to discredit, humiliate and cause injury to [Riese].” Id. ¶ 22. In June 2010, Alexander

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defeated Riese in an election and succeeded him as DA. Id. ¶ 23.
Riese alleges that on August 22, 2011, he fell asleep while at a Safeway “as a side effect
from some medication he had been prescribed for a medical condition.” Id. ¶ 24. He asserts that

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two police officers responded and after speaking with him, “concluded this was a medically

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related incident and that Riese was not under the influence of any alcohol or narcotics.” Id. Riese

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alleges that Alexander was the first person on the scene to investigate the Safeway matter and that

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Alexander “interviewed witnesses and obtained video recordings from the store.” Id.

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Riese alleges that following the Safeway incident, Alexander “decided to harass and wrongfully

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prosecute Riese to further a personal vendetta Alexander carried.” Id. According to Riese,

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Alexander, along with other law enforcement officers, “agreed to have [Crescent City Police

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Department] officers pull Riese over every chance they got to try and catch him intoxicated

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because at the time they had no evidence to use against Riese at trial.” He alleges that Alexander

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conducted interviews of witnesses and pushed forward with the “bad faith prosecution” of Riese

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even though witness statements were favorable to Riese. Id. Riese further asserts that Alexander

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entered into a “secret agreement” with Riese‟s ex-wife whereby his ex-wife would provide

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damaging testimony against Riese at the criminal trial in return for the Del Norte District

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Attorney‟s Office not prosecuting her for violating a court order regarding visitation of the Rieses‟

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children. Id. ¶ 27.

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In addition, according to Riese, in order to harass him, Alexander “pushed The Triplicate

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Newspaper to report that Riese was under criminal investigation from having a medical

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emergency at Safeway in Crescent City.” Id. ¶ 25. “Following this article, Riese was stopped

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more than 10 times by law enforcement and made to administer field sobriety tests. Riese was

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also pulled out of restaurants and shops and made to administer field sobriety tests in the

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respective parking lots.” Id. Riese further alleges that Alexander “would tell people to call in and

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report they had seen „erratic driving‟ or „erratic behavior‟ on Riese‟s part.” Id. Riese contends

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that “[t]his led to public ridicule because of Riese‟s former high-profile position as DA in the

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County and his being a well-known personality in the community.” Id.

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In a separate incident, Riese alleges that Griffin, a Del Norte County Sheriff‟s Deputy,
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submitted an affidavit of probable cause with false allegations to a magistrate in order to obtain a

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search warrant of Riese‟s home for materials connected with illegal narcotics activity. Id. ¶ 29.

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Riese alleges that the affidavit stated that it was “common knowledge” that Riese‟s girlfriend

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worked in a doctor‟s office and had access to prescription pads; information which Griffin could

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easily have discovered was false because Riese‟s girlfriend had not worked for the doctor for 10

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years. Id. The search warrant was issued on December 21, 2011. According to Riese, Griffin and

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other Del Norte County Sheriff‟s Deputies, “all heavily armed, broke into Riese‟s home without

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first knocking and announcing themselves.” ¶ 30. Riese alleges that the deputies spent five hours

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“focusing on Riese‟s firearms collection and in taking pictures of them.” ¶ 30. Riese asserts that
the “illegal search exceeded the scope of the warrant” and did not result in Riese‟s arrest or in

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criminal charges being filed against him. Id.

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In February 2012, Riese was tried in Del Norte County Superior Court for DUI, Child

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Endangerment, and Public Intoxication arising from the Safeway incident. Id. ¶ 32. The jury

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found Riese not guilty on all counts. Id.

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Alexander has moved to strike Riese‟s malicious prosecution and intentional infliction of

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emotional distress causes of action against him pursuant to the California anti-SLAPP statute.

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Griffin has moved to strike Riese‟s unreasonable search and seizure, fabrication of evidence, joint

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action/conspiracy to interfere with civil rights, supervisory liability for constitutional violations

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and intentional infliction of emotional distress cause of action against him pursuant to the

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California anti-SLAPP statute. The emotional distress claim is brought under California common

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law, while the rest of the claims against Griffin are brought pursuant to 42 U.S.C. §1983.

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LEGAL STANDARD
California Code of Civil Procedure Section 425.16 is California‟s response to “strategic

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lawsuits against public participation,” or SLAPP lawsuits. It was enacted “to provide a procedure

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for expeditiously resolving nonmeritorious litigation meant to chill the valid exercise of the

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constitutional rights of freedom of speech and petition in connection with a public issue.” Hansen

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v. California Dep’t of Corr. & Rehab., 171 Cal. App. 4th 1537, 1542-43 (2008). It provides that a

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cause of action against a person “arising from any act of that person in furtherance of the person‟s
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right of petition or free speech under the United States Constitution or the California Constitution

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in connection with a public issue shall be subject to a special motion to strike, unless the court

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determines that the plaintiff has established that there is a probability that the plaintiff will prevail

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on the claim.” Cal. Civ. Proc. Code § 425.16(b)(1). An “act in furtherance of the person‟s right of

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petition or free speech under the United States Constitution or the California Constitution in

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connection with a public issue” includes

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(1) any written or oral statement or writing made before a legislative, executive, or
judicial proceeding, or any other official proceeding authorized by law,
(2) any written or oral statement or writing made in connection with an issue under
consideration or review by a legislative, executive, or judicial body, or any other
official proceeding authorized by law,
(3) any written or oral statement or writing made in a place open to the public or a
public forum in connection with an issue of public interest, or
(4) any other conduct in furtherance of the exercise of the constitutional right of
petition or the constitutional right of free speech in connection with a public issue
or an issue of public interest.
Cal. Civ. Proc. Code § 425.16(e).

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“When served with a SLAPP suit, the defendant may immediately move to strike the

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complaint under Section 425.16.” Id. at 1543. Such a motion to strike is known as an anti-SLAPP

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motion. To determine whether an anti-SLAPP motion should be granted, the trial court must

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engage in a two-step process. First, “the court decides whether the defendant has made a threshold

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showing that the challenged cause of action is one arising from protected activity, that is, by

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demonstrating that the facts underlying the plaintiff‟s complaint fits one of the categories spelled

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out in section 425.16, subdivision (e).” Hecimovich v. Encinal Sch. Parent Teacher Org., 203 Cal.

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App. 4th 450, 465 (2012), review denied (Apr. 25, 2012). Second, if the court finds that such a

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showing has been made, it must determine whether the plaintiff has demonstrated a probability of

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prevailing on the claim. Id.

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To demonstrate a probability of prevailing, the plaintiff “must demonstrate that the
complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to

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sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” Hansen, 171

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Cal. App. 4th at 1543. “The burden on the plaintiff is similar to the standard used in determining

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motions for nonsuit, directed verdict, or summary judgment.” Gilbert v. Sykes, 147 Cal. App. 4th

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13, 26, 53 Cal. Rptr. 3d 752, 763 (2007) (citations omitted). Plaintiff‟s showing must be made

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through competent and admissible evidence. “Thus, declarations that lack foundation or personal

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knowledge, or that are argumentative, speculative, impermissible opinion, hearsay, or conclusory

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are to be disregarded.” Id. (citations omitted); see also Section 425.16(b)(2) (“In making its

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determination, the court shall consider the pleadings, and supporting and opposing affidavits

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stating the facts upon which the liability or defense is based.”).
“[T]he anti-SLAPP statute cannot be used to strike federal causes of action.” Hilton v.

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Hallmark Cards, 599 F.3d 894, 901 (9th Cir. 2010). Accordingly, claims brought pursuant to

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Section 1983 cannot be struck under the anti-SLAPP statute. Smith v. Kohlweiss, Inc., 11-cv-

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00239-SBA, 2012 WL 1156338 (N.D. Cal. Mar. 30, 2012) (“Defendants move to strike Plaintiffs‟

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§ 1983 claim under California‟s anti-SLAPP statute . . . . However, because a federal court can

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only entertain anti-SLAPP special motions to strike in connection with state law claims,

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Defendants‟ motion to strike is DENIED”) (citing Hilton, 599 F.3d at 901).
DISCUSSION

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A. Alexander’s anti-SLAPP motion
Alexander moves to strike the Seventh and Eighth Causes of Action for malicious

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prosecution and intentional infliction of emotional distress claims against him, arguing that his

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alleged conduct is protected under the anti-SLAPP statute and that Riese cannot demonstrate a

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probability of prevailing on the claims because i) the claims are barred by Alexander‟s public

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official immunity under Government Code Section 821.6 and ii) Riese has not offered admissible

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evidence sufficient to support his claims.

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Riese counters that “even if the Court finds Defendant Alexander‟s conduct as being

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„protected activity‟, Plaintiff will be able to show a probability of prevailing on the merits and

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overcoming Defendant Alexander‟s claims of immunity.” Dkt. No. 38 at 2. Riese does not put

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forward any arguments that Alexander‟s conduct is not protected by the anti-SLAPP statute.
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Accordingly, the Court considers that issue conceded and proceeds to determine whether Riese has

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shown a probability of prevailing on his claims.

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1. Riese has not demonstrated a probability of prevailing on his malicious
prosecution and emotional distress claims because Alexander is immune under
Government Code Section 821.6

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As described below, Riese‟s malicious prosecution and emotional distress claims are

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barred by Government Code Section 821.6. Riese‟s malicious prosecution claim against

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Alexander is based on the following factual allegations:

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That Alexander “instituted a criminal prosecution against Riese without probable cause, for
purposes other than that of bringing justice.” Compl. ¶ 77.

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That Alexander charged Riese with four counts of DUI, Child Endangerment, and Public
Intoxication. Id. ¶ 78

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That Alexander was “actively instrumental in prosecuting Riese.” Id.

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That Alexander initiated criminal proceedings against Riese after securing a promise from
Riese‟s ex-wife to testify against Riese at the criminal trial in exchange for not prosecuting
the ex-wife for violating a court order regarding visitation of the couple‟s children. Id.

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That “in prosecuting RIESE knowingly without any evidence or probable cause,” Riese
causes “a perversion of proper legal procedures in which all legal procedures were ignored
in order to try and harass an innocent man.” Id. ¶ 79.

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Riese‟s claim for intentional infliction of emotional distress does not state any additional factual
allegations against Alexander. See id. ¶¶ 84-88.
A public employee acting within the scope of employment is immune from liability for an

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injury caused by the employee “instituting or prosecuting any judicial or administrative

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proceeding . . . even if he acts maliciously and without probable cause.” Cal. Gov. Code § 821.6.

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“California courts construe section 821.6 broadly in furtherance of its purpose to protect public

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employees in the performance of their prosecutorial duties from the threat of harassment through

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civil suits.” Gillan v. City of San Marino, 147 Cal. App. 4th 1033, 1047-48, 55 Cal. Rptr. 3d 158,

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170 (2007). Accordingly, “[t]he immunity applies even if the officers abused their authority” and

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applies to any state law cause of action arising from protected conduct. Id. (“Immunity under

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Government Code section 821.6 is not limited to claims for malicious prosecution, but also

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extends to other causes of action arising from conduct protected under the statute, including

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defamation and intentional infliction of emotional distress.”).

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An employee is acting in the course and scope of his employment “when he is engaged in

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work he was employed to perform, or when the act is incident to his duty and is performed for the

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benefit of his employer, not to serve his own purposes or convenience.” Richardson-Tunnell v.

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Sch. Ins. Program for Employees (SIPE), 157 Cal. App. 4th 1056, 1062, 69 Cal. Rptr. 3d 176, 181

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(2007). Conduct is within the scope of employment even if the employee has an ulterior motive or

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carries out his duties maliciously or without probable cause. Webb v. City & Cnty. of San
Francisco, C 11-00472 CRB, 2011 WL 6151518 (N.D. Cal. Dec. 12, 2011) (allegations that

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Defendants “filed false criminal charges within the judicial process in the name of the court with

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the wrongful ulterior motive” was “within their scope of employment as prosecutors, and

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Defendants are immune under Section 821.6”); Vierria v. California Highway Patrol, 09-cv-305

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KJM, 2011 WL 2971170 (E.D. Cal. July 20, 2011) (“Even if Castle had some sort of ulterior

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motive, “[w]hether the investigatory duties were carried out negligently, maliciously, or without

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probable cause, they were within the scope of employment for purposes of section 821.6.”);

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Sanborn v. Chronicle Pub. Co., 18 Cal. 3d 406, 412, 556 P.2d 764 (1976) (defamatory statements

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within scope of Clerk of the City‟s employment, even if the statements also served to exculpate

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Clerk personally).

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Riese argues that Government Code Section 821.6 does not immunize Alexander‟s

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conduct “because Defendant Alexander was acting outside the scope of his employment in

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instituting the criminal proceeding against Plaintiff.” Dkt. No. 38 at 6. Riese asserts that “[w]hile

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Defendant Alexander as the District Attorney for Del Norte County may discuss proposed conduct

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with law enforcement and seek prosecution of individuals for alleged criminal activities, his

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position as DA does not allow for him to conspire against one individual for personal reasons.”

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Dkt. No. 38 at 7. Riese also suggests that Alexander suppressed a portion of the video recording

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of the incident at Safeway that led to Riese‟s prosecution, rendering Alexander‟s conduct outside

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the scope of his employment such that Section 821.6 immunity does not apply. Compl. ¶ 32.
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Riese has submitted various emails, declarations and police reports in support of his

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claims.1 These submissions are insufficient to demonstrate a probability of overcoming

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Alexander‟s immunity and his conclusory allegations are disregarded. See Gilbert v. Sykes, 147

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Cal. App. 4th at 26 (citations omitted) (“declarations that lack foundation or personal knowledge,

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or that are argumentative, speculative, impermissible opinion, hearsay, or conclusory are to be

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disregarded”).

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Competent evidence before the Court demonstrates that police were dispatched to Safeway

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for a “welfare” check on Riese who appeared “confused and disoriented” and admitted taking pain

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medications and not sleeping for several days. Dkt. No. 38-1. One officer noted that Riese
“appeared to be extremely under the influence.” Dkt. No. 38-1 at 12. Even assuming that there

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was animosity between Alexander and Riese or that Alexander had ulterior motives, Riese has not

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established that Alexander‟s alleged conduct in connection with the prosecution of Riese

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following this incident was not within Alexander‟s scope of employment as District Attorney.

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See, e.g., Sanborn, 18 Cal. 3d at 412; Vierria, 09-cv-0305 KJM, 2011 WL 2971170 (E.D. Cal.

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July 20, 2011). There is no competent evidence of any “secret agreement” between Alexander and

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Riese‟s ex-wife, nor evidence that such an agreement would be outside the scope of Alexander‟s

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On August 27, 2013, the day before the anti-SLAPP motions were to be heard, Riese submitted a
“Supplemental Opposition” to the motions, purportedly containing “newly discovered” evidence.
Dkt. No. 76; Dkt. No. 76-1 (“This evidence is submitted now because Plaintiff only first obtained
it after the initial opposition papers were submitted”). This is not new evidence. It should have
been submitted with Riese‟s oppositions and is not now properly before the Court. Exhibit A is a
police report dated December 9, 2011, Exhibit B is a declaration from Riese‟s criminal trial dated
February 4, 2012, Exhibit C is a decision from the State Bar of California dated April 4, 2013,
Exhibit D is a declaration from Riese‟s current or former girlfriend dated July 25, 2013, and
Exhibit E is a declaration from the doctor whose prescription pads Riese was arrested for illegally
passing, also dated July 25, 2013. Dkt. Nos. 76-1—76-6. Riese provides no reason that he could
not have obtained this material earlier and, indeed, the nature of the exhibits indicates an
exceedingly strong likelihood that he did in fact have access to the material earlier: the
declarations were either used in his own criminal trial or are provided by his acquaintances; the
State Bar order has been publically available for over four months (and is wholly irrelevant); and
the police report is close to two years old and, in any event, and contrary to the sworn declaration
from Riese‟s counsel, Brian Claypool, does not even relate to the Safeway incident at the heart of
Riese’s allegations against Alexander. The Court cautions Mr. Claypool to ensure the accuracy of
his submissions to the Court.
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employment.2 Moreover, Section 821.6 expressly applies to conduct within the public employee‟s

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scope of employment, “even if he acts maliciously and without probable cause.” Govt. Code §

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821.6. Accordingly, Alexander is immune from his alleged conduct, notwithstanding the personal

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history between him and Riese. Alexander‟s motion to strike is granted.
B. Griffin’s anti-SLAPP motion

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1. The Section 1983 actions asserted against Griffin cannot be stricken under the
anti-SLAPP statute.

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Griffin moved to strike the First, Third, Fourth and Fifth Cause of Action under Section

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Northern District of California

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1983, but did not separately brief how that could occur under California‟s anti-SLAPP statute. It
cannot. Hilton, 599 F.3d at 901. Griffin‟s motion to strike is denied as to Riese‟s causes of action
brought under Section 1983. See Smith, 11-cv-00239-SBA, 2012 WL 1156338 (N.D. Cal. Mar. 30,
2012) (denying anti-SLAPP motion to strike claim brought under Section 1983).
2. Riese‟s intentional infliction of emotional distress claim is properly stricken.

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Riese‟s Eighth Cause of Action for intentional infliction of emotional distress arises from

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Griffin submitting an affidavit to a magistrate to obtain a search warrant of Riese‟s home and car
and the subsequent search. Riese alleges that Griffin “conducted [himself] in a manner that
exceeded all bounds of what is tolerated in a civilized community when [he] intentionally abused
[his] power in order to harass Plaintiff, pull him over with no probable cause, and conduct a search
of his home that exceeded that scope of the search warrant and was done in bad faith to fabricate
evidence against him.” Compl. ¶ 86. Riese alleges that, as a result, he “was caused to suffer
severe emotional distress, including, but not limited to anxiety, anguish, humiliation, and other
injuries to his nervous systems.” Id. ¶ 87.
Riese alleges that Griffin‟s affidavit falsely stated that it was “common knowledge” that

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Riese submitted a declaration from Robert Cochran, the attorney who represented Riese at his
criminal trial. Dkt. No. 8-1. Cochran states that “evidence of this secret agreement emerged
literally at trial when [Riese‟s ex-wife] was testifying for the prosecution.” Id. ¶ 7. Cochran‟s
unadorned declaration is insufficient to establish any „secret agreement‟ involving Alexander,
much less that such an agreement was outside the scope of Alexander‟s employment. For
example, Cochran notably does not provide the supposed testimony evidencing this “secret
agreement,” does not describe Alexander‟s supposed role in the agreement, nor does it state what
the ex-wife was supposed to do for her part in the agreement.
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Riese‟s girlfriend worked in a doctor‟s office and had access to prescription pads. Id. ¶ 29. He

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argues that Griffin “fail[ed] to mention that it had been over 10 years that [his girlfriend] had

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worked in [the doctor‟s] office and instead misleads the magistrate into thinking [she] currently

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had access to the prescription pads Plaintiff had used.” Dkt. No. 44 at 4. Riese concludes that

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because “[i]t is illegal to mislead a judge or falsify information on an affidavit . . . . Griffin‟s

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warrant was improperly obtained and as such does not fall under the protection of Section 425.16,

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consequently neither does the search of Plaintiff‟s home and vehicle.” Id. at 5.

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Riese mischaracterizes the affidavit. It does not imply that Riese‟s girlfriend “currently
had access” to the prescription pads Riese used. The affidavit states that it is common knowledge

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“that Riese is currently in a relationship with [the doctor‟s] former wife” who “currently works as

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a nurse in the Del Norte County area and was working at [the doctor‟s office] while they were

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together and therefore had direct access to the prescription pads that Riese used in his attempt to

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illegally obtain controlled substances with a forged prescription.” Dkt. No. 35-1 at 8-9 (emphasis

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added). The affidavit also states that the prescription pads “had not been used for several years.”

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Id. at 7. The affidavit thus accurately states that Riese‟s girlfriend used to work for the doctor and

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previously—not currently—had access to the prescription pads. The affidavit also makes it clear

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that the prescription pads were several years old, further undermining Riese‟s argument that

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Griffin implied that Riese‟s girlfriend had current access to prescription pads. Moreover, the bulk

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of the affidavit is based on an arrest report Griffin received from a detective from Brookings,

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Oregon, who stated that he had arrested Riese for attempting to pass a forged prescription at a

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Brookings pharmacy. Dkt. No. 35-1 at 7 (Griffin Ex. A).

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As the affidavit accurately describes that the prescription pad used by Riese had not been

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used by the doctor for several years and that Riese‟s girlfriend no longer worked at the doctor‟s

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office, and as the bulk of the affidavit describes Riese‟s arrest by a Brookings detective for

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attempting to pass a forged prescription, the Court does not agree that Griffin intended to, or in

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fact did, mislead the judge or provide false information on his affidavit. Accordingly, Griffin‟s

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alleged conduct is not illegal and Griffin is not precluded from striking the allegations against him

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under Section 425.16. Hansen, 171 Cal.App.4th at 1544 (“The search warrant affidavit
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constituted a writing made before a judicial proceeding. Accordingly, those statements fall under

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section 425.16, subdivision (e)(l).”).

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The question then is whether Riese can prevail on his claim. He contends that he can
because:
There are numerous times throughout the video where Plaintiff is
visibly exasperated and does not seem at ease. It was outrageous of
Griffin to not allow Plaintiff inside during the search, while his
house was turned upside down and it was outrageous for Plaintiff to
be detained even before the search had begun. Furthermore,
Griffin‟s threats and telling Plaintiff to “fuck off” can be deemed
outrageous conduct in and of itself.
Dkt. No. 44 at 8.
Riese has not met his burden of demonstrating a probability of prevailing on his emotional

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distress cause of action. First, Griffin‟s conduct in obtaining the search warrant and in conducting

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the subsequent search are part of his investigation and are thus covered by Section 821.6, even if

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Griffin acted maliciously or without probable cause. Baughman v. State of California, 38 Cal.

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App. 4th 182, 192, 45 Cal. Rptr. 2d 82, 89 (1995) (“Under Government Code section 821.6, the

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officers‟ actions during the investigation were cloaked with immunity, even if they had acted

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negligently, maliciously or without probable cause in carrying out their duties.”). Since Griffin is

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immune from liability, Riese cannot prevail on his emotional distress claim and the claim is

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properly stricken under Section 425.16. Harper v. Lugbauer, 11-cv-01306 JW, 2012 WL

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1029996 (N.D. Cal. Mar. 15, 2012) (“If a privilege or immunity bars a defendant from being liable

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for a statement, then that privilege or immunity also precludes a plaintiff from establishing that

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she has a reasonable probability of prevailing on the merits as to that statement for purposes of an

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anti-SLAPP motion.”). Riese has submitted a declaration describing his various interactions with

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Griffin, including the execution of the search warrant and an alleged prior interaction at a Walmart

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where Griffin attempted to arrest Riese. Dkt. No. 44-1. To the extent that the declaration sets

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forth any admissible evidence, it does not establish that Griffin‟s conduct is not covered by

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Section 821.6. At most, the declaration suggests that Griffin was zealous in investigating Riese

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for criminal activity; not that he acted beyond the scope of his employment.

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Second, Riese has failed to submit sufficient competent and admissible evidence to meet
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any of the prongs of his emotional distress claim,3 much less to show a probability of prevailing.

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His assertions that he was exasperated during the search, that he was not allowed into the house,

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and that he was “detained” before the search do not support a finding that Griffin‟s conduct was

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“extreme and outrageous.” Moreover, a review of the video of the search refutes Riese‟s

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allegation that Griffin and other deputies, “all heavily armed, broke into Riese‟s home without

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first knocking and announcing themselves.” Compl. ¶ 30. Notably, Riese does not identify when

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in the video Griffin supposedly threatened Riese or told him to “fuck off.”
Riese‟s emotional distress cause of action is thus properly stricken pursuant to the anti-

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SLAPP statute.
C. Attorney’s Fees

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United States District Court
Northern District of California

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The award of attorney‟s fees to a prevailing defendant in an anti-SLAPP motion is mandatory.

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Cal. Civ. Proc. Code § 425.16(c)(1). The declarations of Ann M. Asiano in support of

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Alexander‟s successful motion establish Alexander‟s fees of $6,256.25. Dkt. No. 31-1 ¶ 4; Dkt.

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No. 39-1 ¶ 2. The declarations of Clariza C. Garcia in support of Griffin‟s partially successful

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motion show that Griffin‟s total fees for the motion were $9,500. Dkt. No. 36 ¶ 4; Dkt. No. 47 ¶

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2. Riese did not comment on these amounts in his submissions to the Court.
The amount of time spent researching and preparing the motions, briefs and declarations is

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reasonable, as are the billing rates of both firms. Accordingly, the Court awards Alexander

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$6256.25, payable by Riese within 45 days of this Order. Griffin‟s motion was successful on the

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state law claims but not the federal claims, and the Garcia declarations do not break down the time

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spent on each claim. In order to provide a basis for the award of fees to Griffin, Griffin‟s counsel

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is directed to submit a declaration within ten days of this Order attaching time records or other

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The elements of a prima facie case for intentional infliction of emotional distress are: (1) extreme
and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the
probability of causing, emotional distress; (2) the plaintiff‟s suffering severe or extreme emotional
distress; and (3) actual and proximate causation of the emotional distress by the defendant‟s
outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that
usually tolerated in a civilized community. Wilson v. Hynek, 207 Cal. App. 4th 999, 1009, 144
Cal. Rptr. 3d 4, 11-12 (2012)
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evidence showing the breakdown of time spent researching and writing the state as opposed to the

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federal claims.
CONCLUSION

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For the reasons stated, Alexander‟s anti-SLAPP motion is GRANTED and Riese‟s Seventh

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and Eighth Causes of Action for malicious prosecution and intentional infliction of emotional

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distress against Alexander are ordered stricken from the Complaint. Alexander is awarded

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$6256.25 in fees, payable by Riese within 45 days of this Order.

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Griffin‟s anti-SLAPP motion is GRANTED as to the Eighth Cause of Action for
intentional infliction of emotional distress against him and is DENIED as to the First, Third,
Fourth and Fifth Causes of Action against him for unreasonable search and seizure, fabrication of

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United States District Court
Northern District of California

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evidence, joint action/conspiracy to interfere with civil rights, and supervisory liability for

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constitutional violations pursuant to Section 1983. Griffin is directed to file a supplemental

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declaration within ten days from this Order showing the amount of time his lawyers spent in

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preparing the meritorious and unmeritorious aspects of his motion to strike.

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IT IS SO ORDERED.
Dated: September 3, 2013
______________________________________
WILLIAM H. ORRICK
United States District Judge

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