Klay v. Santa Cruz County Sheriff's Office et al

Filing 25

STIPULATION AND ORDER ALLOWING PLAINTIFF TO FILE FIRST AMENDED COMPLAINT (approving 24 , mooting 22 ). Signed by Judge Beth Labson Freeman on 9/18/2014. (blflc1, COURT STAFF) (Filed on 9/18/2014)

1
2
3
4
5
6

ELISA J. STEWART, State Bar #219557
WENDYE. MUSELL, State Bar #203507
STEWART & MUSELL, LLP
351 California Street, Suite 700
San Francisco, CA 94104
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
[e-mail]
Attorneys for Plaintiff
Kristopher Klay

7
8

9

~
.....
:::i

SAN JOSE DIVISION

11

0
0
11-< t-

0

NORTHERN DISTRICT OF CALIFORNIA

10

.....l
.....i
.....l
.....l

UNITED STATES DISTRICT COURT

s

'<!"

12

'<!"

U'l 0\

E--<" <t;

13

:g ~ 0
::EE--<

14

µ:) i:a

U'l

u

0

?i5

o(3;::; 0

~~~
<i:: 0 µ..

~~~
E-< u
V)

STIPULATION AND {PROPOSED}
ORDER ALLOWING PLAINTIFF TO
FILE FIRST AMENDED COMPLAINT

PLAINTIFF,

v.

15
16

U'l

Cl'.l,....,

Case No.: 5:14-CV-00326 BLF

KRISTOPHER KLAY,

17

M

18

SANTA CRUZ COUNTY SHERIFF'S
OFFICE; WATSONVILLE POLICE
DEPARTMENT; STEFAN FISH and DOES
1-20, inclusive,
DEFENDANTS

19
20
21
22
23
24
25
26
27
28

WHEREAS, Plaintiff Kristopher Klay filed a Complaint in California Superior Court,
County of Santa Cruz on November 15, 2013;
WHEREAS, Plaintiff Kristopher Klay filed a Complaint in California Superior Court,
County of El Dorado on November 15, 2013;
WHEREAS, Defendants Santa Cruz County Sheriff's Office, Watsonville Police
Department and Stefan Fish removed the case to this Court on January 22, 2014;
WHEREAS Plaintiff seeks to file a First Amended Complaint, a copy of which is
attached hereto as Exhibit A;
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and between
Pa e 1
STIPULATION AND [PROPOSED] ORDER ALLOWING PLAINTIFF TO FILE FIRST AMENDED COMPLAINT
Case No.: 5:14-CV-00326 BLF

1

2
3
4

the parties to the above-captioned action, through their respective counsel, as follows:

1.

Plaintiffs shall be permitted to file the First Amended Complaint within seven

days of the Court entering the Proposed Order.
2.

Defendants shall have 15 days from the date Plaintiff files the First Amended

5

Complaint to answer or otherwise respond to the First Amended Complaint.

6

IT IS SO STIPULATED.

7

DATED: September 18, 2014

STEWART & MUSELL, LLP

8
By:

9

/s/ Elisa J. Stewart
Elisa J. Stewart

10

Attorneys for Plaintiff
A..

11

0
0
t-

.....:l~"'1"
.....:l-8
.~ 'tj.....:l VJ °'
.....:l~<
P'.l~u

;g gi

•

12

DATED: September 18, 2014

DANA McRAE, COUNTY COUNSEL

13

~

~~~
<i; 0 ~

By:

14
15

::E

t-< 0

VJ

<id;::; 0

~~~
E-< u

16

ls/Jason M. Heath
Jason M. Heath
Chief Assistant County Counsel

Attorneys for County Defendants

VJ

[/) ,-<

tn

17

M

18

GRUNSKY, EBEY, FARRAR & HOWELL

DATED: September 18, 2014

19
By:

20

/s/MattAulenta
Matt Aulenta

21
Attorneys for Watsonville Police Department
22
IT IS SO ORDERED.

23
24
DATED: _ _ _ _ _ _ , 2015
25
26
Beth L. Freeman
Judge of the United States District Court

27
28
Pae 2

STIPULATION AND [PROPOSED] ORDER ALLOWING PLAINTIFF TO FILE FIRST AMENDED COMPLAINT
Case No.: 5:14-CV-00326 BLF

EXHIBIT A

1
2
3
4
5
6

ELISA J. STEWART, State Bar #219557
WENDYE. MUSELL, State Bar #203507
STEWART & MUSELL, LLP
351 California Street, Suite 700
San Francisco, CA 94104
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
[e-mail]
Attorneys for Plaintiff
Kristopher Klay

7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

SAN JOSE DIVISION

11

0
0

Po.. t---

....:1 ~""
....:1-~

12

• 0""

....:1
....:1

Cf)

°'
• <i;

13

<Zl

~u
6

Case No.: 5:14-CV-00326 BLF

KRISTOPHER KLAY,

14

>Ll E--<

:::::>

::;EE--<U
Cf) Cl)
o(J <i;

0

~~~
<i; 0 µ..

~~~
u
E--<

15

1. 42 u.s.c. § 1983;

16

2. 42 u.s.c. § 1983;
3. Violation of Labor Code § 432.7(g)(1);

Cl)

v:i,....,

1.£)
("<)

PLAINTIFF'S FIRST AMENDED
COMPLAINT FOR DAMAGES AND
INJUNCTIVE RELIEF

PLAINTIFF,

17

v.

4. Violation of Labor Code§ 432.7(g)(2);
18

5. Violation of Labor Code §432.7(a)

19

6. Defamation Per Se

20
21
22
23

7. Libel;
8. Negligent Infliction of Emotional
Distress; and
9. Intentional Infliction of Emotional
Distress.

SANTA CRUZ COUNTY SHERIFF'S
OFFICE; WATSONVILLE POLICE
DEPARTMENT; STEFAN FISH and CITY
OF SOUTH LAKE TAHOE,
DEFENDANTS

JURY TRIAL DEMANDED

24
25
26
27
28
Pa e 1

PLAINTIFF'S FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
Case No.: 5:14-CV-00326 BLF

1

Plaintiff KRISTOPHER KLAY, by and through his attorneys, STEWART & MUSELL,

2

LLP hereby complains against Defendants SANTA CRUZ COUNTY SHERIFF'S OFFICE,

3

WATSONVILLE POLICE DEPARTMENT, STEFAN FISH AND CITY OF SOUTH LAKE

4

TAHOE, (hereinafter collectively referred to as "Defendants") as follows:

5

INTRODUCTION

6

1.

This action is brought by Plaintiff KRISTOPHER KLAY (hereinafter "KLAY"

7

or "PLAINTIFF") against Defendants for violations of 42 U.S.C. § 1983; Labor Code

8

§ 432.7(a), (g)(l) and (g)(2); Defamation Per se, Libel; Negligent Infliction of Emotional

9

Distress; and Intentional Infliction of Emotional Distress. DEFENDANTS' illegal conduct

10

caused great harm to the PLAINTIFF.

11

0
0

i::i... r-..
:q~ '<!"

,..

2.

On May 3, 2013, PLAINTIFF, a firefighter with the City of South Lake Tahoe

12

Fire Department, was traveling on a motorcycle with another companion, a friend and fellow

13

Emergency Medical Technician, in Watsonville, CA when they were stopped by law

14

enforcement officers who claimed they could not view one of the motorcycle's registrations.

15

The motorcycle was properly registered. PLAINTIFF was never charged with any crimes as a

~~~

16

result of his detention. Despite this, DEFENDANT FISH, a member of the Santa Cruz County

>n

17

Task Gang Task force of the Santa Cruz County Sheriffs Office and the Watsonville Police

18

Department, communicated PLAINTIFF'S detention to PLAINTIFF'S employer, South Lake

19

Tahoe Fire Department. DEFENDANT FISH further claimed that PLAINTIFF was a member

20

of a motorcycle gang. Thereafter, DEFENDANT CITY OF SOUTH LAKE TAHOE requested,

21

obtained and distributed the May 3, 2013 Watsonville Police Department report detailing

22

Plaintiffs detention. Subsequently, DEFENDANT CITY OF SOUTH LAKE TAHOE further

23

defamed PLAINTIFF and terminated him from his position as a firefighter using the detention as

24

a basis.

~-~
~ '<!"
0

~

ell°'

~~~

IJ.li:ilu
;g ~ 6
::E ell u
~
ell
o(3 ;:;

0

~~~
<i::Oi:i..

~jell
VJ,....;
<')

25
26

.JURISDICTION AND VENUE

3.

Jurisdiction: This case arises under, inter alia, violations of 42 U.S.C. §1983.

27

Jurisdiction in this Court is proper based on 28 U.S.C. §1331. This Court has supplemental

28

jurisdiction over the state law claims under 28 U.S.C. § 1367.
Pa e2
PLAINTIFF'S FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
Case No.: 5:14-CV-00326 BLF

1

4.

Venue: Venue is proper in the Northern District of California pursuant to 28

2

U.S.C. §§ 1391(b)(2) because a substantial part of the events giving rise to Plaintiff's claims

3

occurred in the Northern District of California.

4

5.

Intradistrict Assignment: This case is properly assigned to the San Francisco

5

Division of the Northern District of California pursuant to Northern District of California Local

6

Rule 3-2(c) because a substantial part of the events or omissions giving rise to Plaintiffs' claims

7

occurred in Santa Cruz County.

8
9

PARTIES

6.

PLAINTIFF, KRISTOPHER KLAY, is a natural person, residing in California,

10

11

0
0

who was detained by DEFENDANTS SANTA CRUZ COUNTY SHERIFF'S OFFICE;
WATSONVILLE POLICE DEPARTMENT AND DEFENDANT STEFAN FISH.

Q.,. t"-

.....:l ~'<I"

12

'<I"
.....:l"0 0\
Cf)
.....:l ~ <i:

13

entity, organized under the laws, rules and regulations of California and Santa Cruz County and

14

is located and operated in Santa Cruz County, California.

.....:l-~

B3~u
0 6
;:;s E-< u
Cf) Cf)

a(!;:::; 0

~~~
~ 0 µ..

~~~
u

E-<

15

7.

8.

DEFENDANT SANTA CRUZ COUNTY SHERIFF'S OFFICE is a public

DEFENDANT WATSONVILLE POLICE DEPARTMENT is a public entity,

16

organized under the laws, rules and regulations of California and Watsonville and is located and

17

operated in Watsonville, Santa Cruz County, California.

Cf)

r/) ,--<
V)
(<')

18

9.

DEFENDANT STEFAN FISH is a natural person employed and/or working

19

under the authority of DEFENDANTS SANTA CRUZ COUNTY SHERIFF'S OFFICE and

20

WATSONVILLE POLICE DEPARTMENT.

21

10.

DEFENDANT CITY OF SOUTH LAKE TAHOE is a public entity, organized

22

under the laws, rules and regulations of California and South Lake Tahoe and is located and

23

operated in Watsonville, Santa Cruz County, California. Both the South Lake City Fire

24

Department and South Lake City Police Department are organized under the laws, rules and

25

regulations of the City of South Lake Tahoe.

26
27
28

EXHAUSTION OF ADMINISTRATIVE REMEDIES

11.

In accordance with the appropriate regulations, codes, and statutes, the

PLAINTIFF has exhausted his administrative remedies by filing timely tort claims with Santa
Pa e3
PLAINTIFF'S FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
Case No.: 5:14-CV-00326 BLF

1

Cruz County, Watsonville and South Lake Tahoe. Although not required, Plaintiff also filed

2

citizen complaints at the relevant law enforcement agencies.

3
4

GENERAL ALLEGATIONS

12.

On or about May 3, 2013, PLAINTIFF was traveling in Watsonville, Santa Cruz

5

County with a companion and work colleague. He and his companion were traveling on

6

motorcycles. They were wearing vests with patches.

7

13.

At the time, PLAINTIFF was employed as a firefighter with the South Lake

8

Tahoe Fire Department ("SLTFD"). His companion was employed as an Emergency Medical

9

Technician.

10

p,,.

11

0
0

14.

Law enforcement officers in a Watsonville Police Department vehicle activated

their emergency lights and sirens. PLAINTIFF and his companion immediately pulled over.

t--

. . .q::

'tj"

~s~
"
'tj"

~ ell 0\

12

15.

When members of the Santa Cruz County Gang task force approached them,

~~~

13

;g E-< 0 "
~
::E

PLAINTIFF and his companion were questioned whether PLAINTIFF'S companion's

14

motorcycle was properly registered. The motorcycle was in fact properly registered.

~~u
ell

o(j ~

2i5

0

g~~

15

g

16

<r:O..,.
~~~

~ ,...., ell

(/)

tn

17

(")

16.

PLAINTIFF was detained by these law enforcement officers who were members

of the Santa Cruz County Gang Task Force.
17.

There was no lawful basis for PLAINTIFF'S detention. The officers could not

18

have reasonably suspected that PLAINTIFF had any weapons in his possession or that he had

19

been involved in any sort of criminal activity.

20
21
22

18.

PLAINTIFF was searched, photographs were taken of him, and then he was

released shortly thereafter and was not arrested, cited or charged with any offense.
19.

Despite not being arrested, cited, or charged with any offense, the law

23

enforcement officers stated, inter alia, in their police report that PLAINTIFF was a member of a

24

motorcycle gang and that the detention involved "gang activity."

25

20.

At the time, PLAINTIFF was associated with the Guerillas Motorcycle Club, a

26

non-profit organization which raises money for charities. The members of the club included

27

firefighters and EMT workers who enjoyed riding motorcycles on their off duty time and also

28

think it is important to raise money for charity.
Pa e4
PLAINTIFF'S FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
Case No.: 5:14-CV-00326 BLF

1

21.

PLAINTIFF is not and never has been a member of an unlawful motorcycle gang.

2

22.

On or about May 30, 2013, DEFENDANT FISH and/or some other agent of law

3

enforcement, who participated in the detention of PLAINTIFF, contacted PLAINTIFF'S

4

employer, the SLTFD without PLAINTIFFF'S advance knowledge or consent. DEFENDANT

5

FISH and/or some other agent of law enforcement told PLAINTIFF'S employer that

6

PLAINTIFF was a gang member. The SLTFD was not legally authorized to receive such

7

information.

8
9
10

11

0
0

ii.. t-

........1-~
. . q~""

23.

Thereafter SLTFD requested that the City of South Lake Tahoe Police

Department ("SLTPD") request a copy of the May 3, 2013 Watsonville police report. SLTPD
obtained a copy of the report and provided it to SLTFD.
24. On or about June 5, 2013, SLTFD communicated its intent to terminate

12

PLAINTIFF'S employment as a firefighter. The sole reason provided for the termination was

.......i"::::> ""
C/l 0\
.......i E--<" <l'.;

13

the police report referencing the detention of PLAINTIFF on May 3, 2013.

;g ~ 0

~

14

z~

15

containing defamatory statements, including but not limited to, referring to PLAINTIFF as a

g

16

"gang member firefighter."

~~u

::E

C/l

06 <t:
E-<

0

~ E3 ~
~~~
~ C/l

VJ ,...,

in

17

<')

25.

26.

In contemplating PLAINTIFF'S termination, SLTFD issued correspondence

On or about June 11, 2013, PLAINTIFF was directed to attend a brief meeting

18

with Fire Chief Bruce Martin. PLAINTIFF stated he was not a gang member and that he in no

19

way supported any gangs. PLAINTIFF further advised that his involvement with the Guerillas

20

Motorcycle Club was for the purpose of associating with other EMTs and firefighters and to

21

raise money for charities. PLAINTIFF further provided documentation in support of his

22

statements.

23

27.

24
25
26
27
28

On or about June 11, 2013, PLAINTIFF was terminated from his employment

with the South Lake Tahoe Fire Department.
28.

On or about June 26, 2014, PLAINTIFF, through counsel, requested a hearing to

clear his name. This request was not granted.
29.

On or about July 8, 2013, Plaintiff issued a complaint to DEFENDANT SANTA

CRUZ COUNTY SHERIFF'S OFFICE through his legal counsel claiming that DEFENDANTS
Pa e5
PLAINTIFF'S FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
Case No.: 5:14-CV-00326 BLF

1

SANTA CRUZ COUNTY SHERIFF'S OFFICE and FISH had violated the law when it

2

contacted his employer and provided false information leading to his termination of

3

employment.

4

30.

On or about August 14, 2013, DEFENDANT SANTA CRUZ COUNTY

5

SHERIFF'S OFFICE issued a correspondence stating PLAINTIFF'S allegation was "Sustained.

6

Meaning the investigation disclosed sufficient evidence to prove the allegation made in the

7

complaint." See Exhibit A attached hereto.

8
9

31.

As a result of this event, PLAINTIFF has suffered the loss of his employment as

a firefighter, loss of training opportunities and opportunities to advance in his chosen field.

10

11

0
0

PLAINTIFF'S reputation has been marred by baseless claims that he is a gang member.
PLAINTIFF has also suffered emotional distress.

p... r-

~~"""

~ss

"""

"
~ Cl)°'

~ E--<" <C
IJ..1 >14 u

:g gj "
::;sE--<o
cl?.!

Cl)~
;$ 0

12

FIRST CLAIM FOR RELIEF

13

VIOLATION OF 42 U.S.C. § 1983

14

(AGAINST DEFENDANTS SANTA CRUZ, FISH AND WATSONVILLE)

~~~

15

~,... ~

16

herein. PLAINTIFF also incorporates by reference each and every other paragraph of this

C/l ,...;

17

Complaint except those that are inconsistent with a cause of action for a violation of 42 U.S.C.

18

§ 1983.

~o
~~

~~Cl)
\(")

C'"l

19

32.

33.

PLAINTIFF hereby incorporates paragraph 1through31 as though fully set forth

At all times herein mentioned 42 U.S.C. § 1983 was in full force and effect and

20

was binding upon DEFENDANTS SANTA CRUZ COUNTY SHERIFF'S OFFICE, STEFAN

21

FISH and WATSONVILLE POLICE DEPARTMENT. Said section prohibits actions under

22

color of state law that perpetrates the deprivation of and/or denial of federally protected rights.

23

At all times herein mentioned, DEFENDANT were state actors acting under color of state law.

24

34.

In committing the acts complained of herein, DEFENDANTS acted under color

25

of state law to deprive and/or deny Plaintiff of constitutionally protected rights under the Fourth,

26

Fifth, and Fourteenth Amendments to the Constitution of the United States including, but not

27

limited to: a) the right to be free from unreasonable searches and seizures; b) the right not to be

28

deprived of liberty without due process of law; c) the right to remain silent; and d) the right not
Pa e6
PLAINTIFF'S FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
Case No.: 5:14-CV-00326 BLF

1

to be deprived of property without due process of law.

2

35.

DEFENDANTS SANTA CRUZ SHERIFF'S, FISH and WATSONVILLE

3

POLICE DEPARTMENT unlawfully detained PLAINTIFF and obtained information including

4

the name of his employer which was then recorded in a police report.

5

36.

DEFENDANTS CRUZ SHERIFF'S OFFICE, FISH and WATSONVILLE

6

POLICE DEPARTMENT defamed PLAINTIFF in the police report by stating that he was a

7

member and/or associated with a gang that engaged in criminal activity.

8
9
10

p... !--~~'tj-

~5~
"
'tj-

~ Cll 0\

~
µ..i E-<·~

Cl)~ u
~
6
::E Cll u
E-<
Cll

olds 0
~~~
-< 0 µ..
~::: ~

Cl)

in

The statements were thereafter broadcast to PLAINTIFF'S employer SLTFD

verbally and/or in writing. PLAINTIFF'S employer was not authorized to receive such
information. Thereafter, PLAINTIFF was terminated from his position with the SLTFD.

11

0
0

~u
~
,....
,.,,

37.

38.

As a direct and proximate result of DEFENDANTS' unlawful actions as

12

described above, PLAINTIFF has incurred, and will continue to incur loss of employment,

13

training, advancement and promotional opportunities, loss of wages and benefits, medical

14

expenses, all to his damage in an amount according to proof.

15

39.

As a direct, foreseeable, and proximate result of DEFENDANTS' actions,

16

PLAINTIFF has suffered and continues to suffer humiliation, embarrassment, mental and

17

emotional distress and discomfort, all to PLAINTIFF'S damage in an amount in excess of the

18

minimum jurisdiction of this court, the precise amount to be proven at trial.

Cll

19

40.

As a further direct and proximate result of DEFENDANTS' violation of the 42

20

U.S.C. § 1983, PLAINTIFF has been compelled to retain the services of counsel in an effort to

21

remedy the harm inflicted upon him by DEFENDANTS, and has thereby incurred, and will

22

continue to incur, legal fees and costs, the full nature and extent of which are presently unknown

23

to PLAINTIFF, and PLAINTIFF is therefore entitled to reasonable attorneys' fees and costs of

24

suit.

25

41.

PLAINTIFF is informed and believes and thereon alleges that the conduct of

26

DEFENDANT STEFAN FISH was grossly intentional, negligently reckless, willful, wanton,

27

malicious, oppressive and/or unmindful of obligations to PLAINTIFF and/or exhibits that entire

28

want of care which would rise to the presumption of conscious indifference to the consequences
Pae 7
PLAINTIFF'S FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
Case No.: 5:14-CV-00326 BLF

1

so as to warrant the imposition of punitive damages in an amount sufficient to punish, penalize

2

or deter DEFENDANT, for which DEFENDANT is liable to PLAINTIFF.

3
4

WHEREFORE, PLAINTIFF prays for judgment against DEFENDANTS as set forth

below.

5

SECOND CLAIM FOR RELIEF

6

VIOLATION OF 42 U.S.C. § 1983

7

(AGAINST CITY OF SOUTH LAKE TAHOE)

8
9

42.

PLAINTIFF hereby incorporates paragraph 1through41 as though fully set forth

herein. PLAINTIFF also incorporates by reference each and every other paragraph of this

10

i:i...

11

0
0
i:---

Complaint except those that are inconsistent with a cause of action for a violation of 42 U.S.C.
§ 1983.

~~'tj~-s
";::::> 'tj-

12

"<

13

was binding upon DEFENDANT. Said section prohibits actions under color of state law that

14

that perpetrates the deprivation of and/or denial of federally protected rights. At all times herein

15

mentioned, DEFENDANT was a state actor acting under color of state law.

~

~

(/) °'

~u
~
::;E E-< 0
(/) ?Ji

>il

;g
ci6

"

<0

~~~
<i; 0

43.

At all times herein mentioned 42 U.S.C. § 1983 was in full force and effect and

µ.

~~~

16

,.....

17

state law to deprive and/or deny Plaintiff of constitutionally protected rights under the Fourth,

18

Fifth, and Fourteenth Amendments to the Constitution of the United States including, but not

19

limited to: a) the right not to be deprived of liberty without due process of law; and b) the right

20

not to be deprived of property without due process of law.

~~(/)
(/) u
\/)
«)

21

44.

45.

In committing the acts complained of herein, DEFENDANT acted under color of

After learning of PLAINTIFF'S detention on or about May 3, 2013,

22

DEFENDANT CITY OF SOUTH LAKE TAHOE'S Fire Department requested and received

23

information about this detention. This was information DEFENDANT was not authorized to

24

receive.

25

46.

Thereafter DEFENDANT SOUTH LAKE TAHOE'S Police Department obtained

26

and broadcast defamatory statements contained in the Watsonville Police Report to

27

PLAINTIFF'S employer, DEFENDANT SOUTH LAKE TAHOE'S Fire Department.

28

47.

DEFENDANT SOUTH LAKE TAHOE'S Fire Department issued defamatory
Pae 8

PLAINTIFF'S FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
Case No.: 5:14-CV-00326 BLF

1

email correspondence in connection with the termination of PLAINTIFF.

2

48.

DEFENDANT SOUTH LAKE TAHOE used the fact of and circumstances

3

surrounding PLAINTIFF'S May 3, 2013 detention to terminate him from his employment in

4

violation of Labor Code §432.7.

5

49.

As a direct and proximate result of DEFENDANT'S unlawful actions as

6

described above, PLAINTIFF has incurred, and will continue to incur loss of employment,

7

training, advancement and promotional opportunities, loss of wages and benefits, medical

8

expenses, all to his damage in an amount according to proof.

9

50.

As a direct, foreseeable, and proximate result of DEFENDANT'S actions,

10

p..

0
0

r---

~~'tj-

~s~
"
'tj~en°'

PLAINTIFF has suffered and continues to suffer humiliation, embarrassment, mental and

11

emotional distress and discomfort, all to PLAINTIFF'S damage in an amount in excess of the

12

minimum jurisdiction of this court, the precise amount to be proven at trial.

~ E-<" <t:
~i:i:iu

13

en u
en

14

U.S.C. § 1983, PLAINTIFF has been compelled to retain the services of counsel in an effort to

~~~

15

remedy the harm inflicted upon him by DEFENDANT, and has thereby incurred, and will

~~~
U en

16

continue to incur, legal fees and costs, the full nature and extent of which are presently unknown

r;/),...,

17

to PLAINTIFF, and PLAINTIFF is therefore entitled to reasonable attorneys' fees and costs of

18

suit.

gs~ 6
~ E-<

o<l

s0

0:::0
<i; µ..

51.

As a further direct and proximate result of DEFENDANT'S violation of the 42

~

V)

<'">

19
20

WHEREFORE, PLAINTIFF prays for judgment against DEFENDANT as set forth
below.

21

THIRD CLAIM FOR RELIEF

22

Violation of Labor Code§ 432.7(g)(l)

23

(BY PLAINTIFF AGAINST ALL DEFENDANTS)

24
25
26

52.

PLAINTIFF incorporates by reference the allegations contained in paragraphs 1

through 51, inclusive, as though fully set forth herein.
53.

At all times herein mentioned Labor Code§ 432.7(g)(l) was in full force and

27

effect and was binding upon DEFENDANTS. The statute prohibits peace officers or employees

28

of law enforcement agencies with access to criminal offender record information from
Pa e 9
PLAINTIFF'S FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
Case No.: 5:14-CV-00326 BLF

1

knowingly disclosing, with the intent to affect a person's employment any information which

2

pertains to an arrest or detention to any person not authorized by law to receive such

3

information.

4

54.

Information regarding PLAINTIFF'S detention with law enforcement officers on

5
6

SOUTH LAKE TAHOE obtained and provided a copy of the police report referring to

7

PLAINTIFF'S detention by law enforcement officers which referred to him as a gang member

8

and to the detention as "gang activity." DEFENDANTS' sole purpose in making contact with

9

PLAINTIFF'S employer and communicating such information was to affect PLAINTIFF'S

10

employment. PLAINTIFF'S employer was not entitled to receive such information and the

11

0
0

or about May 3, 2013 was communicated to PLAINTIFF'S employer. DEFENDANT CITY OF

communication of it was also impermissible.

p.. ("'-.

....i~"'"

s

....i ......
• ;::J ""'"
....i (/)
....i E--<"<!'.'.
i::a

°'

vi~u
~
6

~E--<U
(/) (/)

c'(l

<t: 0

g~~
<t; 0 ~

12

55.

As a direct and proximate result of DEFENDANTS' unlawful actions as

13

described above, PLAINTIFF has incurred, and will continue to incur loss of employment,

14

training, advancement and promotional opportunities, loss of wages and benefits, medical

15

expenses, all to his damage in an amount according to proof.

~~~

16

Vl

17

PLAINTIFF has suffered and continues to suffer humiliation, embarrassment, mental and

18

emotional distress and discomfort, all to PLAINTIFF'S damage in an amount in excess of the

19

minimum jurisdiction of this court, the precise amount to be proven at trial.

56.

As a direct, foreseeable, and proximate result of DEFENDANTS' actions,

E-< u (/)
rl
l/")

C'l

20

57.

As a further direct and proximate result of DEFENDANTS' violation of the

21

Labor Code section 427(g)(1), PLAINTIFF has been compelled to retain the services of counsel

22

in an effort to remedy the harm inflicted upon him by DEFENDANTS, and has thereby incurred,

23

and will continue to incur, legal fees and costs, the full nature and extent of which are presently

24

unknown to PLAINTIFF, and PLAINTIFF is therefore entitled to reasonable attorneys' fees and

25

costs of suit pursuant to, but not limited by, Cal. Civ. Pro. Sec. 1021.5.

26

58.

PLAINTIFF is informed and believes and thereon alleges that the conduct of

27

DEFENDANT STEFAN FISH was grossly intentional, negligently reckless, willful, wanton,

28

malicious, oppressive and/or unmindful of obligations to PLAINTIFF and/or exhibits that entire
Pae 10
PLAINTIFF'S FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
Case No.: 5:14-CV-00326 BLF

1

want of care which would rise to the presumption of conscious indifference to the consequences

2

so as to warrant the imposition of punitive damages in an amount sufficient to punish, penalize

3

or deter DEFENDANTS, for which DEFENDANTS are all liable to PLAINTIFF.

4
5

WHEREFORE, PLAINTIFF prays for judgment against DEFENDANTS as set forth

below.

6

FOURTH CLAIM FOR RELIEF

7

Violation of Labor Code§ 432.7(g)(2)

8

(BY PLAINTIFF AGAINST ALL DEFENDANTS)

9
10

11

0
0

p.. t:q~ "<!"
~ ...... ~

,..

59.

PLAINTIFF incorporates by reference the allegations contained in paragraphs 1

through 58, inclusive, as though fully set forth herein.
60.

At all times herein mentioned Labor Code§ 432.7(g)(2) was in full force and

12

effect and was binding upon DEFENDANTS. The statute prohibits anyone who is authorized to

13

receive criminal offender record information from knowingly disclosing, with the intent to affect

14

a person's employment any information which pertains to an arrest or detention to any person

~~~
<i; 0 µ..

15

not authorized by law to receive such information.

~~

16

0

::::>

~

0

"<!"

~ U) 0\

<t:

r.r.i~u

;g ~
::E

0

E-< 0

U)

?;5

cl<!;::; 0

~ E::~

U) ,....,

tn

61.

DEFENDANTS, including DEFENDANT FISH, communicated information

U)

17

regarding PLAINTIFF'S detention with law enforcement officers on or about May 3, 2013 to

18

PLAINTIFF'S employer. DEFENDANTS, including DEFENDANT FISH, also provided a

19

copy of the police report referring to PLAINTIFF'S detention by law enforcement officers

20

which referred to him as a gang member and to the detention as "gang activity."

21

DEFENDANTS' sole purpose in making contact with PLAINTIFF'S employer and

22

communicating such information was to affect PLAINTIFF'S employment. PLAINTIFF'S

23

employer was not entitled to receive such information.

""

24

62.

As a direct and proximate result of DEFENDANTS' unlawful actions as

25

described above, PLAINTIFF has incurred, and will continue to incur loss of employment,

26

training, advancement and promotional opportunities, loss of wages and benefits, medical

27

expenses, all to his damage in an amount according to proof.

28

63.

As a direct, foreseeable, and proximate result of DEFENDANTS' actions,
Pae 11

PLAINTIFF'S FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
Case No.: 5:14-CV-00326 BLF

1

PLAINTIFF has suffered and continues to suffer humiliation, embarrassment, mental and

2

emotional distress and discomfort, all to PLAINTIFF'S damage in an amount in excess of the

3

minimum jurisdiction of this court, the precise amount to be proven at trial.

4

64.

As a further direct and proximate result of DEFENDANTS' violation of the

5

Labor Code section 427(g)(2), PLAINTIFF has been compelled to retain the services of counsel

6

in an effort to remedy the harm inflicted upon him by DEFENDANTS, and has thereby incurred,

7

and will continue to incur, legal fees and costs, the full nature and extent of which are presently

8

unknown to PLAINTIFF, and PLAINTIFF is therefore entitled to reasonable attorneys' fees and

9

costs of suit pursuant to, but not limited by, Cal. Civ. Pro. Sec. 1021.5.

10

65.

PLAINTIFF is informed and believes and thereon alleges that the conduct of

11

DEFENDANT STEFAN FISH was grossly intentional, negligently reckless, willful, wanton,

~ ~""'"
~-~

12

malicious, oppressive and/or unmindful of obligations to PLAINTIFF and/or exhibits that entire

~
~ E-<"<t:

13

want of care which would rise to the presumption of conscious indifference to the consequences

~

14

so as to warrant the imposition of punitive damages in an amount sufficient to punish, penalize

~~~
~ .....
~~~
u

15

or deter DEFENDANTS, for which DEFENDANTS are all liable to PLAINTIFF.

p..

0
0
t--

" ;:i O'\
~ CIJ ""'"

~~u
~
6
::;E

CIJ

o(! <t:

0

~o

~

~,...,

in
<'I

16

WHEREFORE, PLAINTIFF prays for judgment against DEFENDANTS as set forth

CIJ

17

below.

18

FOURTH CLAIM FOR RELIEF

19

Violation of Labor Code§ 432.7(a)

20

(BY PLAINTIFF AGAINST DEFENDANTS CITY OF SOUTH LAKE TAHOE)

21
22
23

66.

PLAINTIFF incorporates by reference the allegations contained in paragraphs 1

through 65, inclusive, as though fully set forth herein.
67.

At all times herein mentioned Labor Code§ 432.7(a) was in full force and effect

24

and was binding upon DEFENDANTS. The statute prohibits any employer from seeking from

25

any source whatsoever, or utilizing, as a factor in determining any condition of employment

26

including hiring, promotion, termination, or any apprenticeship training program or any other

27

training program leading to employment, any record of arrest or detention that did not result in

28

conviction.
Pa e 12
PLAINTIFF'S FIRST AMENDED COMPLAINT AND DEMAND FOR WRY TRIAL
Case No.: 5:14-CV-00326 BLF

1

68.

DEFENDANT STEFAN FISH and/or other agents of law enforcement

2

communicated information regarding PLAINTIFF'S detention with law enforcement officers on

3

or about May 3, 2013 to PLAINTIFF'S employer, SLTFD. PLAINTIFF'S employer then

4

requested and received a copy of the Watsonville Police Department report. The report was used

5

by DEFENDANT CITY OF SOUTH LAKE TAHOE to terminate PLAINTIFF'S employment.

6

DEFENDANT CITY OF SOUTH LAKE TAHOE was not entitled to receive such information.

7

DEFENDANT CITY OF SOUTH LAKE TAHOE willfully disregarded the truthful information

8

provided by PLAINTIFF that he was not involved in any manner in gang activities, rather he

9

belonged to a group whose members included EMTs, and firefighters who raised money for

10
0
0

charities.

11

69.

As a direct and proximate result of DEFENDANT CITY OF SOUTH LAKE

i:i.. t---

~~"<!"

... s

~
,;:i "<!"
~

Cl)°'

~ ~<C

ll.l~u

gs~ 6

::;s E-< u
0
E-< IZ ~
~

12

TAHOE'S unlawful actions as described above, PLAINTIFF has incurred, and will continue to

13

incur loss of employment, training, advancement and promotional opportunities, loss of wages

14

and benefits, medical expenses, all to his damage in an amount according to proof.

Cl) Cl)

dd <C

<i::

z

0 µ..

~~~

~~Cl)
r./).,....,

tn
<'I

15

70.

As a direct, foreseeable, and proximate result of DEFENDANT CITY OF

16

SOUTH LAKE TAHOE'S actions, PLAINTIFF has suffered and continues to suffer

17

humiliation, embarrassment, mental and emotional distress and discomfort, all to PLAINTIFF'S

18

damage in an amount in excess of the minimum jurisdiction of this court, the precise amount to

19

be proven at trial.

20

71.

As a further direct and proximate result of DEFENDANT' CITY OF SOUTH

21

LAKE TAHOE'S violation of the Labor Code section 427(a)), PLAINTIFF has been compelled

22

to retain the services of counsel in an effort to remedy the harm inflicted upon him by

23

DEFENDANT CITY OF SOUTH LAKE TAHOE, and has thereby incurred, and will continue

24

to incur, legal fees and costs, the full nature and extent of which are presently unknown to

25

PLAINTIFF, and PLAINTIFFS are therefore entitled to reasonable attorneys' fees and costs of

26

suit pursuant to, but not limited by, Cal. Civ. Pro. Sec. 1021.5.

27
28

WHEREFORE, PLAINTIFF prays for judgment against DEFENDANTS as set forth

below.
Pae 13
PLAINTIFF'S FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
Case No.: 5:14-CV-00326 BLF

1
2

SIXTH CLAIM FOR RELIEF

3

Defamation Per Se

4

(BY PLAINTIFF AGAINST ALL DEFENDANTS)

5

72.

PLAINTIFF alleges and incorporates by reference Paragraphs 1 through 56 of

6

this Complaint as if fully set forth herein. PLAINTIFF also incorporates into this cause of action

7

each and every allegation set forth in every paragraph of this Complaint, except those that are

8

inconsistent with a cause of action for defamation per se.

9

73.

At all times relevant to this action, California Civil Code§ 43, et seq. were in full

10
0
0

force and effect. Section 43 provides that every person has, subject to the qualifications and

11

restrictions provided by law, the right of protection from ... defamation, and from injury to his

12

personal relations. Defamation is effected by either of the following: (a) Libel; (b) Slander.

p.. t--

.....:l~'<I"
.....:l ...... ;:;
.....:l":::>"""
Cl) 0\
.....:l E--<"<
~~u

;g~o
::;Bf--<U
Cl) Cl)

a(!;::; 0

13

74.

Civil Code Section 44 defines slander as a category of defamation.

14

75.

Civil Code section 45 provides: "Libel is a false and unprivileged publication by

15

writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any

~~~

16

person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided,

Cl) ,....,

17

or which has a tendency to injure him in his occupation."

~~~
<0~

~~Cl)
tn
ff")

18

76.

19

Civil Code section 46 provides:
Slander is a false and unprivileged publication, orally uttered, and also
communications by radio or any mechanical or other means which:

20

1.

21

2.

22

3.

23
24
25

4.
5.

26
27
28

77.

Charges any person with crime, or with having been indicted,
convicted, or punished for crime;
Imputes in him the present existence of an infectious, contagious,
or loathsome disease;
Tends directly to injure him in respect to his office, profession,
trade or business, either by imputing to him general
disqualification in those respects which the office or other
occupation peculiarly requires, or by imputing something with
reference to his office, profession, trade, or business that has a
natural tendency to lessen its profits;
Imputes to him impotence or a want of chastity; or
Which, by natural consequence, causes actual damages.

While the precise date of these publications are not known to PLAINTIFF, except

as herein alleged, DEFENDANTS made the following statements:
Pa e 14
PLAINTIFF'S FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
Case No.: 5:14-CV-00326 BLF

1

a.

On or about May 4, 2013, in a written police report, DEFENDANTS

2

SANTA CRUZ SHERIFF'S OFFICE, WATSONVILLE POLICE DEPARTMENT and

3

STEFAN FISH stated that PLAINTIFF'S (1) stop was related to "gang activity"; (2)

4

"admissions of gang affiliation were made"; (3) that he "displayed gang signs or symbols"; (4)

5

that he "wore unique gang colors or dress"; (5) that "we was observed in association with gang

6

members" and (6) that he was a "gang member."

7

b.

On or about June 10, 2013, DEFENDANT CITY OF SOUTH LAKE

8

TAHOE'S agent issued an email correspondence which referred to PLAINTIFF as a "Gang

9

Member Firefighter" and a "known gang member." The correspondence stated that PLAINTIFF

10

was associated with another known [gang] member at the time of the police report. The

11

correspondence stated that PLAINTIFF could be violent. The correspondence stated that

12

PLAINTIFF would fail to perform his duties as a firefighter and emergency medical technician.

13

The correspondence recommended that the police report could be published to South Lake

14

Tahoe Fire Department firefighters, staff and to the entire community. The correspondence was

~~

15

sent to executive and supervisory staff. Plaintiff is informed and believes that subsequent false

~'"""~

16

statements regarding PLAINTIFF were made at various times.

Po<

0
0

r---

~ ~

<:!"

~ss
"
<:!"

~ Cll 0\

~
ll.1 E-<"<t;

Cl)~ u
~
6
::;s Cll u
E-<
Cll
o(j ::;

0

E-<
i::i:::o
~~

~~
IZl,_,
V)
f')

(/)

17

78.

The above referenced publications were outrageous, negligent, reckless,

18

intentional, and maliciously published and republished by DEFENDANTS, and each of them.

19

PLAINTIFF is informed and believes that the negligent, reckless, and intentional publications by

20

DEFENDANTS, and each of them, were and continue to be, foreseeably published and

21

republished by DEFENDANTS, their agents, employees, and recipients in the community.

22

PLAINTIFF hereby seeks damages for these publications and all foreseeable republications

23

discovered up to the time of trial.

24

79.

During the above-described time-frame, DEFENDANTS, and each of them,

25

conspired to, and in fact, did negligently, recklessly, and intentionally cause excessive and

26

unsolicited publication of defamation, of and concerning PLAINTIFF, to third persons, who had

27

no need or desire to know. Those third person(s) to whom these DEFENDANTS published this

28

defamation are believed to include, but are not limited to, other agents and employees of
Pa e 15
PLAINTIFF'S FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
Case No.: 5:14-CV-00326 BLF

1

DEFENDANTS, and each of them, and the community, all of whom are known to

2

DEFENDANTS, and each of them, but some of whom are unknown at this time to PLAINTIFF.

3

80.

The defamatory publications consisted of oral and written, knowingly false and

4

unprivileged communications, tending directly to injure PLAINTIFF and PLAINTIFF'S

5

personal, business, and professional reputation. These publications included the following false

6

and defamatory statements (in violation of Civil Code§§ 45, 45a and 46(1)(3)(5)) with the

7

meaning and/or substance: PLAINTIFF was a gang member who engaged in criminal conduct,

8

associated with other known criminals and/or gang members, engaged in violence and would fail

9

to perform his duties. These and similar statements published by DEFENDANTS, and each of

10

11

0
0

them, expressly and impliedly asserted that Plaintiff was a violent criminal who would be
derelict in his duties.

p.. t-

,.. :q~""

12

~ ~"~
i:i:i ~u

13

statements will continue to be published by DEFENDANTS, and each of them, and will be

14

foreseeably republished by their recipients, all to the ongoing harm and injury to PLAINTIFF'S

15

business, professional, and personal reputations. PLAINTIFF also seeks redress in this action for

16

all foreseeable republications, including her own compelled self-publication of these defamatory

17

statements.

18

82.

~-~
" ::i 0\
~ Cl) ""

:g ~ 6

~~u
Cl) Cl)

cld

~

0

g~~
< 0 µ..

~~~
E-< u

81.

Plaintiff is informed, believes and fears that these false and defamatory per se

Cl)

[/) r l

Ir)
<')

The defamatory meaning of all of the above-described false and defamatory

19

statements and their reference to PLAINTIFF, were understood by these above-referenced third

20

person recipients and other members of the community who are known to DEFENDANTS, and

21

each of them, but unknown to PLAINTIFF at this time.

22
23
24

83.

None of DEFENDANTS' defamatory publications against PLAINTIFF

referenced above are true.
84.

The above defamatory statements were understood as assertions of fact, and not

25

as opinion. PLAINTIFF is informed and believes this defamation will continue to be negligently,

26

recklessly, and intentionally published and foreseeably republished by DEFENDANTS, and

27

each of them, and foreseeably republished by recipients of DEFENDANTS' publications,

28

thereby causing additional injury and damages for which PLAINTIFF seeks redress by this
Pa e 16
PLAINTIFF'S FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
Case No.: 5:14-CV-00326 BLF

1
2

action.
85.

Each of these false defamatory per se publications (as set forth above) were

3

negligently, recklessly, and intentionally published in a manner equaling malice and abuse of

4

any alleged conditional privilege (which PLAINTIFF denies existed), since the publications, and

5

each of them, were made with hatred, ill will, and an intent to vex, harass, annoy, and injure

6

PLAINTIFF in order to justify the illegal and cruel actions of DEFENDANTS, and each of

7

them, to cause further damage to PLAINTIFF'S professional and personal reputation, and to

8

cause him to be fired.

9

86.

Each of these publications by DEFENDANTS, and each of them, was made with

10

knowledge that no investigation supported the unsubstantiated and obviously false statements.

11

The DEFENDANTS published these statements knowing them to be false, unsubstantiated by

12

any reasonable investigation. These acts of publication were known by DEFENDANTS, and

~~u

"<i::

13

each of them, to be negligent to such a degree as to be reckless. In fact, not only did

~~ "
::E E-< 0

ii

14

DEFENDANTS, and each of them, have no reasonable basis to believe these statements, but

g 0 µ.
?Ii~
<C

15

they also had no belief in the truth of these statements, and in fact knew the statements to be

16

false. DEFENDANTS, and each of them, excessively, negligently, and recklessly published

17

these statements to individuals with no need to know, and who made no inquiry, and who had a

18

mere general or idle curiosity of this information.

p...

0
0
t--

......1~"'1"

......1-~

"'1"
. . . 1":::> 0\
CIJ
...1

CIJ

~~o

~~~
u

E-<
[/)

CIJ

,-<

in
M

19

87.

The above complained-of publications by DEFENDANTS, and each of them,

20

were made with hatred and ill will towards PLAINTIFF and the design and intent to injure

21

PLAINTIFF, PLAINTIFF'S good name, his reputation, employment and employability.

22

DEFENDANTS, and each of them, published these statements, not with an intent to protect any

23

interest intended to be protected by any privilege, but with negligence, recklessness and/or an

24

intent to injure PLAINTFF and destroy his reputation. Therefore, no privilege existed to protect

25

any of the DEFENDANTS from liability for any of these aforementioned publications or

26

republications.

27
28

88.

As a proximate result of the publication and republication of these defamatory

statements by DEFENDANTS, and each of them, PLAINTIFF has suffered injury to his
Pa e 17
PLAINTIFF'S FIRST AMENDED COMPLAINT AND DEMAND FOR WRY TRIAL
Case No.: 5:14-CV-00326 BLF

1

personal, business and professional reputation including suffering embarrassment, humiliation,

2

severe emotional distress, shunning, anguish, fear, loss of employment, and employability, and

3

significant economic loss in the form oflost wages and future earnings, all to PLAINTIFF'S

4

economic, emotional, and general damage in an amount according to proof.

5

89.

DEFENDANTS, and each of them, committed the acts alleged herein recklessly,

6
7

each of them, their agents and employees, herein alleged were known, ratified and approved by

11

~
~ E-<"<i::

a reckless and conscious disregard of PLAINTIFF'S rights. All actions of DEFENDANTS, and

10

Cl)~ u
~
0
::;s Cl) u
E-< Cl)
o<l ::; 0

and/or prevented the existence of any conditional privilege, which in fact did not exist, and with

9

~~"""
~ss
"
~ Cl) """
0\

for an improper and evil motive amounting to malice (as described above), and which abused

8

0
0
Q.,. [--.

maliciously, fraudulently, and oppressively, with the wrongful intention of injuring PLAINTIFF,

the DEFENDANTS, and each of them. PLAINTIFF would thus is entitled to recover punitive

12

and exemplary damages from DEFENDANTS, and each of them, for these wanton, obnoxious,

13

and despicable acts in an amount based on the wealth and ability to pay according to proof at

14

time of trial but for DEFENDANTS status as a public entity.

z~

15

~~~

16

PLAINTIFF harm. PLAINTIFF has been damaged in an amount in excess of the jurisdictional

17

limits of this Court.

E-<
~~

~Oµ..

E-< u

Cl) ,....,
tr)
<')

90.

DEFENDANT'S defamatory publications were a substantial factor in causing

Cl)

18
19

WHEREFORE, PLAINTIFF prays for judgment against DEFENDANTS as set forth

below.

20

SEVENTH CLAIM FOR RELIEF

21

Libel

22

(BY PLAINTIFF AGAINST ALL DEFENDANTS)

23

91.

PLAINTIFF alleges and incorporates by reference Paragraphs 1 through 90 of

24

this Complaint as if fully set forth herein. PLAINTIFF also incorporates into this cause of action

25

each and every allegation set forth in every paragraph of this Complaint, except those that are

26

inconsistent with a cause of action for libel.

27
28

92.

PLAINTIFF is informed and believes DEFENDANTS, and each of them, by the

herein-described acts, conspired to, and in fact, did negligently, recklessly, and intentionally
Pa e 18
PLAINTIFF'S FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
Case No.: 5:14-CV-00326 BLF

1

caused external written publications of libel, and libel per se, of and concerning PLAINTIFF, to

2

third persons and to the community. These false and libelous statements were express: (1) the

3

written police report dated May 4, 2013 stating, inter alia, that Plaintiff was a gang member; and

4

(2) the email correspondence on or about June 10, 2013 stating that PLAINTIFF was a gang

5

member who associated with other known gang members. These and other similar false

6

statements expressly and impliedly conveyed that PLAINTIFF was a violent criminal who could

7

not be trusted and would fail to perform his duties as a firefighter.

8
9

93.

While the precise dates of all of these publications are not known to PLAINITFF,

except as herein alleged, the police report was dated May 4, 2013 and the email correspondence

10

ii..

11

0
0

r--

~~'tj-

~-8

";::::>

calling PLAINTIFF a gang member was sent June 10, 2013. PLAINTIFF is informed and
believes that subsequent false written statements regarding PLAINTIFF were made at various

12

times. These publications were outrageous, negligent, reckless, intentional, and maliciously

13

published and republished by DEFENDANTS, and each of them. PLAINTIFF is informed and

14

believes that the negligent, reckless, and intentional publications by DEFENDANTS, and each

15

of them, were and continue to be, foreseeably published and republished by DEFENDANTS,

16

their agents, employees, and recipients in the community. PLAINTIFF hereby seeks damages for

17

these publications and all foreseeable republications discovered up to the time of trial.

'tj-

~ [/) 0\

~
IJ.1 E-<"~

[/) ~ u
~
6
::E E-< u
06;::; 0

[/) [/)

g~~
~ 0 µ..
~~~

~~
,.....

[/).

tn
f'i

[/)

18

94.

During the above-described time-frame, DEFENDANTS, and each of them,

19

conspired to, and in fact, did negligently, recklessly, and intentionally cause excessive and

20

unsolicited publication of defamation, of and concerning PLAINTIFF, to third persons. Those

21

third person(s) to whom these DEFENDANTS published these libelous statements are believed

22

to include, but are not limited to, other persons in the firefighter community, and the community

23

at large.

24

95.

The libelous publication consisted of written, knowingly false and unprivileged

25

communications, tending directly to injure PLAINTIFF and PLAINTIFF'S personal, business,

26

and professional reputation. These publications included the following false and libelous

27

statements in its correspondence (in violation of Civil Code§§ 45, 45a and 46(1)(3)(5)) with the

28

meaning and/or substance: PLAINTIFF was a gang member who engaged in criminal conduct,
Pa e 19
PLAINTIFF'S FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
Case No.: 5:14-CV-00326 BLF

1

associated with other known criminals and/or gang members, engaged in violence and would fail

2

to perform his duties. These and similar statements published by DEFENDANTS, and each of

3

them, expressly and impliedly asserted that Plaintiff was a violent criminal who would be

4

derelict in his duties.

5

96.

The libelous meaning of all of the above-described false and libelous statements

6

and their reference to PLAINTIFF, were understood by these above-referenced third person

7

recipients and other members of the community who are known to DEFENDANTS, and each of

8

them, but some of whom are unknown to PLAINTIFF at this time.

9
10

97.
above are true.

11

0
0

None of DEFENDANTS' libelous publications against PLAINTIFF referenced

98.

The above libelous statements were understood as assertions of fact, and not as

p.. t-

,.. .:q:;

-tj-

~-s

"::::>
~ Cl)
~

12

opinion.

-tj-

0\

"<C

~ fau
;g ~ "

13

99.

Each of these false libelous publications (as set forth above) were negligently,

E-< 0

14

recklessly, and intentionally published in a manner equaling malice and abuse of any alleged

i;2 ~ ~

15

conditional privilege (which PLAINTIFF denies existed), since the publications, and each of

~~~
E-< u

16

them, were made with hatred, ill will, and an intent to vex, harass, annoy, and injure

17

PLAINTIFF in order to justify the illegal and cruel actions of DEFENDANTS, and each of

18

them, to cause further damage to PLAINTIFF'S professional and personal reputation.

::E

o(!

i;5
;::; 0

Cl)

<r:Oi;i;.

Cl)

Cl) ,......

ll')
t<)

19

100.

Each of these publications by DEFENDANTS, and each of them, were made with

20

knowledge that no investigation supported the unsubstantiated and obviously false statements.

21

The DEFENDANTS, published these statements knowing them to be false, unsubstantiated by

22

any reasonable investigation. These acts of publication were known by DEFENDANTS, and

23

each of them, to be negligent to such a degree as to be reckless. In fact, not only did

24

DEFENDANTS, and each of them, have no reasonable basis to believe these statements, but

25

they also had no belief in the truth of these statements, and in fact knew the statements to be

26

false.

27
28

101.

The above complained-of publications by DEFENDANTS, and each of them,

were made with hatred and ill will towards PLAINTIFF and the design and intent to injure
Pa e20
PLAINTIFF'S FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
Case No.: 5:14-CV-00326 BLF

1

PLAINTIFF, PLAINTIFF'S good name, his reputation, employment and employability.

2

DEFENDANTS, and each of them, published these statements, not with an intent to protect any

3

interest intended to be protected by any privilege, but with negligence, recklessness and/or an

4

intent to injure PLAINTIFF and destroy his reputation. Therefore, no privilege existed to protect

5

any of the DEFENDANTS from liability for any of these aforementioned publications or

6

republications.

7

102.

As a proximate result of the publication and republication of these defamatory

8
9

~

... s

• :::>

severe emotional distress, shunning, anguish, fear, loss of employment, and employability, and

11

~~'tj-

personal, business and professional reputation including suffering embarrassment, humiliation,

10
0
0
ii.. i:---

statements by DEFENDANTS, and each of them, PLAINTIFF has suffered injury to his

significant economic loss in the form of lost wages and future earnings, all to PLAINTIFF'S

12

economic, emotional, and general damage in an amount according to proof.

'tj-

~Cl) 0\

~~<i::

13

;g~o
::E E-< u
C/J
~::; 0

14

maliciously, fraudulently, and oppressively, with the wrongful intention of injuring PLAINTIFF,

15

for an improper and evil motive amounting to malice (as described above), and which abused

16

and/or prevented the existence of any conditional privilege, which in fact did not exist, and with

17

a reckless and conscious disregard of PLAINTIFF'S rights. All actions of DEFENDANTS, and

18

each of them, their agents and employees, herein alleged were known, ratified and approved by

19

the DEFENDANTS, and each of them. PLAINTIFF would thus be entitled to recover punitive

20

and exemplary damages from DEFENDANTS, and each of them, for these wanton, obnoxious,

21

and despicable acts in an amount based on the wealth and ability to pay according to proof at

22

time of trial but for DEFENDANTS status as a public entity.

>Lli::qu
Cl)

~~~
<i; ~ p;,

~ ...... ~

~~

Cll ,.....

tn

103.

DEFENDANTS, and each of them, committed the acts alleged herein recklessly,

C/J

f')

23

104.

DEFENDANT'S libelous publications were a substantial factor in causing

24

PLAINTIFF harm. PLAINTIFF has been damaged in an amount in excess of the jurisdictional

25

limits of this Court.

26
27

WHEREFORE, PLAINTIFF prays for judgment against DEFENDANTS as set forth

below.

28
Pa e21
PLAINTIFF'S FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
Case No.: 5:14-CV-00326 BLF

1
2

EIGHTH CLAIM FOR RELIEF

3

Negligent Infliction of Emotional Distress

4

(BY PLAINTIFF AGAINST ALL DEFENDANTS)

5

105.

PLAINTIFF alleges and incorporates by reference Paragraphs 1through104 of

6

this Complaint as if fully set forth herein. PLAINTIFF also incorporates into this cause of action

7

each and every allegation set forth in every paragraph of this Complaint, except those that are

8

inconsistent with a cause of action for negligent infliction of emotional distress.

9
10

~

r-

.....i~"tj-

.....i ...... ~
~ :::> "tj.....i <Zl 0\
.....i ~ <t:

i:ili:i::iu

~~6
:;:s <Zl u
E-<
<Zl
c(l <t: 0

~~~
< µ,.
~~~
u

12

If)
<')

107.

DEFENDANTS, and each of them, knew or should have known that their actions

were likely to result in serious emotional harm, anguish and distress to PLAINTIFF.

13

108.

As a proximate result of DEFENDANTS' conduct, PLAINTIFF has suffered and

14

continues to suffer discomfort, anxiety, humiliation and emotional distress, and will continue to

15

suffer serious emotional distress in the future in an amount according to proof.

i:i:::o

VJ ,....,

By engaging in the conduct set forth herein, DEFENDANTS have negligently

breached their duty of care not to engage in the conduct alleged.

11

0
0

~

106.

16

109.

PLAINTIFF is informed and believes that the wrongful acts and/or conduct

<Zl

17

alleged herein which was perpetrated by all DEFENDANTS was done maliciously,

18

oppressively, and/or fraudulently and with a wrongful intent of harming and injuring

19

PLAINTIFF and did in fact harm PLAINTIFF with an improper and evil motive amounting to

20

malice and in conscious disregard of PLAINTIFF'S rights. As a result, PLAINTIFF is entitled

21

to recover punitive damages against DEFENDANT FISH as allowed for under law.

22
23

WHEREFORE, PLAINTIFF prays for judgment against DEFENDANTS as set forth

below.

24

NINTH CLAIM FOR RELIEF

25

Intentional Infliction of Emotional Distress

26

(BY PLAINTIFF AGAINST ALL DEFENDANTS)

27
28

110.

PLAINTIFF alleges and incorporate by reference Paragraphs 1through109 of

this Complaint as if fully set forth herein. PLAINTIFF also incorporates into this cause of action
Pa e22
PLAINTIFF'S FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
Case No.: 5:14-CV-00326 BLF

1

each and every allegation set forth in every paragraph of this Complaint, except those that are

2

inconsistent with a cause of action for intentional infliction of emotional distress.

3

111.

The conduct set forth herein above by DEFENDANTS was extreme and

4

outrageous. Said conduct was intended to cause and did cause severe emotional distress, or was

5

done in conscious disregard of the probability of causing such distress.

6

112.

As a proximate result of said conduct, PLAINTIFF has suffered and continues to

7

suffer discomfort, anxiety, humiliation and emotional distress, and will continue to suffer serious

8

emotional distress in the future in an amount according to proof.

9

113.

PLAINTIFF is informed and believes that the wrongful acts and/or conduct

10

alleged herein which was perpetrated by DEFENDANTS was done maliciously, oppressively,

11

and/or fraudulently and with a wrongful intent of harming and injuring PLAINTIFF and did in

12

fact harm PLAINTIFF with an improper and evil motive amounting to malice and in conscious

13

disregard of PLAINTIFF'S rights. As a result, PLAINTIFF is entitled to recover punitive

0
ii

14

damages against DEFENDANT FISH as allowable under law.

~~~
<i:: 0 µ..

15

0
0

p... r--~~"tj"

~5S
"
"tj"
~

~

Cl)°'

"<

i:il~u

~ E-<
~
::;s

Cl)

"

o<3-<0

~

e: ~

~j

C/) ......
\£)
Cf)

DEMAND FOR ,JURY TRIAL AND PRAYER FOR RELIEF

16

WHEREFORE, PLAINTIFF demands judgment against all DEFENDANTS as follows:

17

a.

Cl)

18
19

That process be issued and served as provided by law, requiring DEFENDANTS
to appear and answer or face judgment;

b.

That PLAINTIFF has and recovers a judgment against DEFENDANTS in an

20

amount to be determined at trial as general, special, actual, compensatory and/or

21

nominal damages;

22

c.

That PLAINTIFF has and recovers a judgment against DEFENDANTS for

23

punitive damages in an amount to be determined at trial sufficient to punish,

24

penalize and/or deter DEFENDANTS;

25

d.

That PLAINTIFF has and recovers a judgment against DEFENDANTS in an

26

amount to be determined at trial for expenses of this litigation, including, but not

27

limited to, reasonable attorneys' fees, costs and expert fees;

28

e.

That PLAINTIFF has and recovers a judgment against DEFENDANTS enjoining
Pae 23

PLAINTIFF'S FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
Case No.: 5:14-CV-00326 BLF

1

DEFENDANTS from engaging in each of the unlawful practices set forth in this

2

Complaint;

3

f.

That PLAINTIFF obtain injunctive relief;

4

g.

That PLAINTIFF recovers pre-judgment and post-judgment interest; and

5

h.

That PLAINTIFF has such other relief as this Court deems just and appropriate.

6
7

PLAINTIFF DEMANDS TRIAL BY JURY.

8

Dated: September 18, 2014

9

Respectfully submitted,
STEWART & MUSELL, LLP

10

Po<

11

0
0
t"--

....l ~"'*
....l ...... S
....l"~ °'
U'l
....l E-<"<
>il

"'*

[/) ~ u"
::::>
::;E E-< 0
U'l ~
o(j ~

0

~~~
µ..

<i; 0

~~~
u

E-<

12

Isl Elisa J. Stewart
Elisa J. Stewart
Attorneys for Plaintiff

13
14
15
16

U'l

[/) ,....;

tn

17

("')

18
19
20
21
22
23
24
25
26
27
28
Pa e24
PLAINTIFF'S FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
Case No.: 5:14-CV-00326 BLF