Rubalcava v. City Of San Jose et al

Filing 264

ORDER GRANTING IN PART AND DENYING IN PART 199 DEFENDANTS' MOTION FOR SUMMARY JUDGMENT. Signed by Judge Beth Labson Freeman on 3/27/2024. (blflc1, COURT STAFF) (Filed on 3/27/2024)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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LIONEL RUBALCAVA,
Plaintiff,

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v.

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United States District Court
Northern District of California

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Case No. 20-cv-04191-BLF

CITY OF SAN JOSE, et al.,
Defendants.

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ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT
[Re: ECF 199]

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Seventeen years after Plaintiff Lionel Rubalcava was imprisoned for the crime of

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attempted murder, his conviction was vacated by the Santa Clara County Superior Court, which

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also made an express finding of his actual innocence. Rubalcava thereafter filed this suit, claiming

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that San Jose Police Department (“SJPD”) officers and Santa Clara County investigators

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fabricated evidence and committed other misconduct that led to his wrongful conviction.

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A number of parties and claims have been dismissed since the suit was filed in 2020. The

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remaining defendants are the City of San Jose and five SJPD officers – Joseph Perez, Topui

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Fonua, Steven Spillman, Rafael Nieves, and Ramon Avalos. Rubalcava asserts civil rights claims

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against the individual officers under federal and state law, and seeks to establish the City’s

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liability for the conduct of its officers under state law. Defendants now move for summary

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judgment.

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For the reasons discussed below, Defendants’ motion for summary judgment is
GRANTED IN PART AND DENIED IN PART.

I.

United States District Court
Northern District of California

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BACKGROUND

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Drive-By Shooting of Raymond Rodriguez

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Shortly before 5:30 p.m. on Friday, April 5, 2002, 19-year old Raymond Rodriguez was

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the victim of a drive-by shooting in front of his home on Mastic Street in San Jose, California. See

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Police Report Compilation at 2-3,1 Matthias Decl. Ex. 69, ECF 220-6. The driver of a SUV pulled

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up and shot Rodriguez while he was in front of his house with his younger brother, Eric Millan,

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and a friend, Daniel Cerecerez. See id. at 2-3, 10. Rodriguez survived the shooting but he was

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paralyzed from the waist down. See Trial Tr. 126:14-22, Matthias Decl. Ex. 23, ECF 215-7.

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Other witnesses to the shooting included Rodriguez’s neighbor, David Gonzalez, who was in his

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own front yard, and two men, Alejandro Borrego and Nicholas Faría, who were across the street.

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See Police Report Compilation at 2-3, 8-9, 19-20, Matthias Decl. Ex. 69.
At the time of the shooting, Rodriguez was wearing a red belt hanging down to mid-thigh

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with an N on the belt buckle, indicating affiliation with the Norteño street gang. See Trial Tr.

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108:2-109:23, 118:14-119:18, Matthias Decl. Ex. 23. Witness descriptions of the shooters were

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inconsistent, with some saying that the SUV’s occupants wore white shirts, while at least one

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witness said that SUV’s occupants wore blue clothing that was possibly Dallas Cowboys gear.

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See Police Report Compilation at 2-10, Matthias Decl. Ex. 69. The color blue typically is worn by

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members of the Sureño street gang. See Trial Tr. 58:5-10, Matthias Decl. Ex. 23. The Norteños

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and Sureños are rivals. See id. 56:13-15. Shortly after the shooting, Rodriguez told officers that

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he thought the shooters must have been “scraps,” meaning Sureños. See Police Report

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Compilation at 19, Matthias Decl. Ex. 69; Trial Tr. 132:6-12, 500:16-19, Matthias Decl. Ex. 23.

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Investigation Led by Fonua, Spillman, and Perez

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SJPD Officers Topui Fonua and Steven Spillman were assigned to lead the investigation.

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See Fonua Dep. 32:12-17, 87:5-7, Matthias Decl. Ex. 13, ECF 214-7; Spillman Dep. 122:13-16,

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Matthias Decl. Ex. 14, ECF 214-8. Because of possible gang involvement, Fonua and Spillman

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looped in the SJPD Gang Investigations Unit, including Detective Joe Perez of that Unit. See

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All citations are to documents’ internal (not ECF) pagination.
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United States District Court
Northern District of California

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Fonua Dep. 34:6-25, 81:3-25, 82:1-83:4, 85:23-86:1, Matthias Decl. Ex. 13. Approximately three

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days into the investigation, Detective Perez took over as the lead investigator, a role he held

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through Rubalcava’s criminal trial. See Perez Dep. 207:21-208:4, Matthias Decl. Ex. 11, ECF

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214-5; Fonua Dep. 83:6-11, Matthias Decl. Ex. 13.

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Jennifer Rodriguez’s Interaction with Rubalcava

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Shortly after 8:00 p.m. on Sunday, April 7, 2002 – two days after the shooting – a dark

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colored truck pulled up in front of the Rodriguez home on Mastic Street. See Trial Tr. 213:8-

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214:28, Matthias Decl. Ex. 23. Rodriguez’s younger sister, Jennifer, was outside the house. See

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id. The driver called out to Jennifer to come over to the truck, but Jennifer was frightened because

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of the recent shooting and because it appeared that the driver was holding something in his left

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hand below the level of the truck window. See id. 219:12-221:12. The family called the police,

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but the truck drove off before the police arrived. See id.

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Detective Perez interviewed Jennifer on April 10, 2002. See Perez Police Report at 2-3,

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Matthias Decl. Ex. 19, ECF 215-3. Perez’s police report indicates that Jennifer did not know who

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the driver of the truck was, that he held an item in his left hand “as if it were a gun,” and that

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Jennifer believed the item was a gun. Id. The police report also indicates that Jennifer viewed a

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photo line-up and identified Rubalcava as the driver of the truck. See id.

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Rubalcava does not deny that he stopped his truck in front of the Rodriguez home on the

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night of April 7, 2002. He claims that he stopped to flirt with a girl he saw outside, who he later

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learned was Jennifer Rodriguez. See Rubalcava Decl. ¶ 4, ECF 207-2. He denies having a gun.

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See id. In a deposition conducted in May 2022, Jennifer testified that she never told the police that

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the driver of the truck had a gun. See Jennifer Dep. 75:21-79:12, Matthias Ex. 9, ECF 214-3.

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David Gonzalez’s Identification of Rubalcava as the Shooter

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At about 9:00 p.m. on Sunday, April 7, 2002, Officers Fonua and Spillman went to Mastic

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Street in search of Rodriguez’s neighbor, David Gonzalez. See Trial Tr. 539:8-541:3, Matthias

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Decl. Ex. 23. Fonua and Spillman had received information that Gonzalez witnessed the shooting

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but did not come forward to make a statement at the scene. See id. Fonua and Spillman

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encountered Gonzalez outside his home and interviewed him there. See id. 542:3-543:1.
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Spillman’s police report reflects that Gonzalez said he recognized the shooter as a gang member

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from the area, and that he believed the shooter was the same man who had just pulled up in front

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of the Rodriguez home in a black truck. See Spillman Police Report at 1-2, Matthias Decl. Ex. 17,

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ECF 215-1. Gonzalez agreed to ride around the neighborhood with Fonua and Spillman to see if

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he could spot the black truck. See id. at 3. Gonzalez and the officers were unable to locate the

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truck, and they agreed to meet up the following day to try again. See id.

United States District Court
Northern District of California

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On April 8, 2002, Fonua and Spillman met up with Gonzalez at the Tamien train station in

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San Jose to continue looking for the black truck. See Spillman Police Report at 3-4, Matthias

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Decl. Ex. 17. According to Spillman’s police report, when Gonzalez got in the officers’ vehicle he

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said he had spoken with Daniel Cerecerez the prior night and learned from Cerecerez that a man

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named Lionel Rubalcava drove a black truck like the one they were looking for. See id. at 4. The

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police report indicates that Gonzalez did not know Rubalcava by sight, but had heard that

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Rubalcava was a member of West Side Mob. Id. West Side Mob is a Norteño street gang. See

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Fonua Police Report at 3, Matthias Decl. Ex. 16, ECF 214-10. Officer Fonua’s police report states

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that the officers took Gonzalez to the police station to view a photo line-up, and that Gonzalez

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“immediately” picked out Rubalcava as the driver of the SUV when Rodriguez was shot. See id.

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A records check revealed that Rubalcava was on parole and had a black GMC truck. See id.

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Gonzalez denies that he gave the police Rubalcava’s name. See Gonzalez Dep. 171:12-

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172:14, Matthias Decl. Ex. 10, ECF 214-4. During a 2022 deposition, Gonzalez stated that when

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he met the officers at the Tamien train station, they already had a suspect in mind and showed him

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a photo line-up in the car. See id. 96:21-98:17. Gonzalez’s deposition testimony was that he

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picked out Rubalcava’s photo as someone who “looked like” the shooter, but did not make an

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instant or positive identification. See id. 44:16-46:8. At trial, Officer Fonua admitted that he and

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Spillman already had a photo line-up ready to go when they met Gonzalez at the Tamien train

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station. See Trial Tr. 575:18-576:21, Matthias Decl. Ex. 23. Fonua testified that he and Spillman

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showed Gonzalez the photo line-up in the vehicle in the parking lot of the train station. See id.

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Gonzalez claims that he first saw Rubalcava in person at the preliminary hearing. Trial Tr.

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516:22-25, Matthias Decl. Ex. 23. Gonzalez further claims that when he saw Rubalcava in person,
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United States District Court
Northern District of California

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he realized that Rubalcava was not the shooter, and so informed Detective Perez. See Gonzalez

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Dep. 28:9-29:19, Matthias Decl. Ex. 10. Gonzalez did not testify to that realization at the

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preliminary hearing, however; he testified that Rubalcava looked like the SUV driver who shot

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Rodriguez, but he could not say for sure that Rubalcava was the shooter. See Prelim. Hrg. Tr.

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133:23-135:2., Matthias Decl. Ex. 22, ECF 215-6. Gonzalez later testified at trial that he was sure

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Rubalcava was not the shooter. See Trial Tr. 516:3-28, Matthias Decl. Ex. 23. The prosecutor

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argued that Gonzalez had positively and correctly identified Rubalcava as the shooter, and was

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recanting after the fact because he feared retribution. See id. 981:11-982:6. When he was deposed

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in 2022, Gonzalez denied having any fear of retribution, asserting that he had seen the actual

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shooter on the streets during Rubalcava’s incarceration, and that the shooter was not a Norteño.

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See Gonzalez Dep. 176:15-179:16, Matthias Decl. Ex. 10.

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Eric Millan’s Identification of Rubalcava as the Shooter

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Officer Fonua’s police report indicates that after Gonzalez identified Rubalcava in a photo

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line-up on April 8, 2002, Fonua and Spillman went to the Rodriguez residence to show the photo

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line-up to Millan, Rodriguez’s younger brother. See Fonua Police Report at 3, Matthias Decl. Ex.

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16. According to the report, Fonua asked Millan if he could remember the person who shot his

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brother, and Millan answered “yeah.” Id. The report reflects that Millan “looked over the photos

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and pointed at photo #1,” Rubalcava, and said that was the person who shot his brother. Id.

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Finally, the report states that Fonua asked Millan if he was sure, and Millan said “yes.” Id.

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Millan, who was 11 years old when his brother was shot, claims that he never got a good

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enough look at the shooter to identify him, because everything happened so fast and he was

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focused on his brother rather than the driver of the SUV. See Millan Dep. 42:15-43:15, 46:15-

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48:15, 86:11-88:11, Matthias Decl. Ex. 8. During a deposition taken in 2022, Millan testified that

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he told the police repeatedly he did not see the shooter well enough to make an identification. See

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id. 88:21-89:4. He stated that to the extent the police report says he did not hesitate to make a

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positive identification of Rubalcava, the report was untrue. See id. 137:6-10.

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Millan also testified at his deposition that Detective Perez told him there was evidence

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proving Rubalcava was the shooter. See Millan Dep. 90:6-91:1, Matthias Decl. Ex. 8. Millan
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United States District Court
Northern District of California

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thereafter identified Rubalcava as the shooter at both the preliminary hearing and at trial. See

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Prelim. Hrg. Tr. 72:18-27, Matthias Decl. Ex. 22; Trial Tr. 172:4-17, Matthias Decl. Ex. 23.

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Millan says that when he made the in-court identifications of Rubalcava, he was just going along

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with what he was being told, which was that the police had the person who shot his brother. See

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Millan Dep. 102:5-18, Matthias Decl. Ex. 8.

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Raymond Rodriguez’s Identification of Rubalcava as the Shooter

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On April 9, 2002, Detective Perez visited Rodriguez in the hospital and showed him a

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photo line-up. See Perez Police Report at 1, Matthias Decl. Ex. 18, ECF 215-2. Perez’s police

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report states that Rodriguez “viewed the line-up for about 5 seconds” before picking Rubalcava

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out as the shooter. Id. Perez’s report reflects that Rodriguez then said, “Yeah, that’s the guy that

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was there. He’s the one that was driving and shot me.” Id.

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Rodriguez claims that he actually told Perez that he could not make a positive

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identification of the shooter, and that statements to the contrary in the police report were not true.

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See Rodriguez Dep. 22:19-24:14, Matthias Decl. Ex. 6, ECF 207-10. At a 2022 deposition,

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Rodriguez testified that he told Detective Perez more than once that he (Rodriguez) was not sure

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Rubalcava was the person who shot him. See id. 24:9-25:28. Rodriguez claims that he

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nonetheless identified Rubalcava as the shooter at trial for two reasons: first, because Rubalcava

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looked like the person who shot him, and second, because Perez told him that there were facts

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proving Rubalcava was the shooter. See id. 60:21-62:2. According to Rodriguez, Perez said that

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other people had positively identified Rubalcava. See id. 62:23-63:7. Rodriguez also remembers

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Perez telling him that he (Perez) thought Rubalcava was lying about going on a date the night of

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the shooting. See id. 64:1-25.

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Rubalcava’s Arrest and Assertion of Alibi

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After completing the photo line-ups with Gonzalez and Millan on April 8, 2002, Fonua and

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Spillman consulted with other officers and decided to arrest Rubalcava. See Fonua Police Report

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at 3-4, Matthias Decl. Ex. 16. Fonua and Spillman made a stop of Rubalcava’s vehicle, took him

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into custody, and transported him to the police department for booking. See id.

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Rubalcava was interviewed by other officers on April 9, 2002. See Interview Tr., Matthias
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Decl. Ex. 36, ECF 216-10. Rubalcava said that he left San Jose at about 5:00 p.m. on April 5,

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2002, and drove to Hollister for a first date with a woman named Stephanie. See id. at 5.

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Rubalcava said he arrived in Hollister at about 6:00 p.m., met Stephanie at a McDonald’s,

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purchased movie tickets at about 6:30 p.m., and saw a 7:00 p.m. movie. See id. at 20-22.

United States District Court
Northern District of California

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Detective Perez was concerned about Rubalcava’s statement, because it did not make sense

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to him that Rubalcava could have shot Rodriguez in San Jose at 5:30 p.m. and then been in

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Hollister on a date by 6:30 p.m. See Perez Dep. 351:1-8, Matthias Decl. Ex. 11. Based on the

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timeline Rubalcava had provided, Perez doubted that he could have shot Rodriguez and made it to

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Hollister for his date, given the distance and Friday night traffic. See id. 351:21-352:22. Perez

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became skeptical as to whether Rubalcava actually went on the date with Stephanie. See id.

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Detective Perez interviewed Stephanie Leon on April 10, 2002. See Police Report Compilation at

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21. Perez’s police report states that he showed Stephanie a single photo of Rubalcava, and asked

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if it was the man she went on a date with on April 5, 2002. See id. Stephanie stated that she was

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97% sure it was. See id.

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Perez arranged for Stephanie to participate in a live witness showing to get more certainty

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about her identification. See Perez Dep. 311:19-312:21, Matthias Decl. Ex. 11. However,

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unbeknownst to her, the person he presented at the live witness showing was not Lionel

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Rubalcava, but rather Lionel’s brother, Rolando Rubalcava. See id. Perez made the switch

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because he believed it was possible that Plaintiff Rubalcava provided a false alibi, and that

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actually his brother had gone on the date with Stephanie. See id. Stephanie stated that Rolando

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Rubalcava was not the person she went on the date with. See id. When Stephanie eventually was

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shown Lionel Rubalcava in person, she confirmed that he was the person who took her to the

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movies in Hollister on April 5, 2002. See Stephanie Leon Dep. 74:4-14, Matthias Decl. Ex. 31,

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ECF 216-5.

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Felony Complaint

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Detective Perez filed a felony complaint against Rubalcava on April 12, 2002, one week

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after the shooting. See Perez Dep. 444:10-21, Matthias Decl. Ex. 11. In addition to the charge of

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attempted murder, the complaint included a gang enhancement charge that Rubalcava shot
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Rodriguez for the benefit of, at the direction of, and in association with a criminal street gang,

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West Side Mob. See id. at 448:1-449:17.

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Preliminary Hearing

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The Santa Clara County Superior Court held a preliminary hearing on June 4, 2002 and

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June 5, 2002. See Prelim. Hrg. Tr., Matthias Decl. Ex. 22, ECF 215-6. The prosecutor, Deputy

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District Attorney Mark Duffy, presented several witnesses, including Rodriguez, Millan, and

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Gonzalez. See id. Rodriguez identified Rubalcava, who was seated in the courtroom, as the

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person who shot him. See id. 21:20-22:3. Millan identified Rubalcava as the person who shot his

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brother. See id. 72:18-27. Gonzalez testified that Rubalcava looked like the SUV driver who shot

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United States District Court
Northern District of California

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Rodriguez, but he could not say for sure if Rubalcava was the shooter. See id. 133:23-135:2.
SJPD Detective Ramon Avalos was qualified as a gang expert, and testified that sometimes

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different “sets” of the Norteño gang attack each other. See Prelim. Hrg. Tr. 160:2-21, Matthias

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Decl. Ex. 22. In particular, Avalos testified that West Side Mob, a Norteño street gang in San

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Jose, was in conflict with Varrio Horseshoe, another Norteño street gang in San Jose. See id.

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165:4-166:26. Avalos testified that Rubalcava was a member of West Side Mob and that his

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shooting of Rodriguez, another Norteño, could have been related to that conflict. See id. 160:22-

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163:1, 170:1-171:24.

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The court found that there was probable cause to believe that Rubalcava committed the

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attempted murder of Rodriguez, and that the charged offense was committed for the benefit of a

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criminal street gang. See Prelim. Hrg. Tr. 250:28-251:20, Matthias Decl. Ex. 22.

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Trial

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A jury trial commenced on November 14, 2003. See Trial Tr. 32, Matthias Decl. Ex. 23.

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No physical or forensic evidence was presented linking Rubalcava to the shooting. The prosecutor

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focused largely on eyewitness testimony, including testimony of Rodriguez and Millan identifying

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Rubalcava as the shooter. See id. 115:25-116:9, 172:4-17. Gonzalez testified that Rubalcava was

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not the shooter, and stated that when he first saw Rubalcava in person at the preliminary hearing,

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he knew the police had the wrong guy. See id. 516:3-28. However, the prosecutor attacked the

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credibility of Gonzalez’s testimony by questioning him extensively about his prior identification
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of Rubalcava and highlighting inconsistencies between Gonzalez’s trial testimony and preliminary

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hearing testimony. See id. 517:1-535:12.

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Jose. See Trial Tr. 55:24-56:4, Matthias Decl. Ex. 23. He opined that Ramirez’s shooting could

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have been related to a feud between two Norteño gangs, West Side Mob and Varrio Horseshoe.

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See id. 603:1-605:9. Nieves stated that Rubalcava was associated with West Side Mob, his

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neighbor Gonzalez was associated with Varrio Horseshoe, and Rodriguez could have been

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perceived as guilty by association with Gonzalez and thus become a target of West Side Mob. See

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id. 604:28-606:7.

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United States District Court
Northern District of California

Detective Rafael Nieves testified as an expert in the area of criminal street gangs in San

The prosecutor also presented testimony of Jennifer Rodriguez regarding Rubalcava’s

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appearance outside the Rodriguez home two days after the shooting. See Trial Tr. 213:12- 221:12,

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Matthias Decl. Ex. 23. In his closing argument, the prosecutor asked the jury to consider “[w]hat

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are the odds” that Rubalcava was not involved in the shooting but just happened drive up to the

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victim’s home two days later, and just happened be positively identified by multiple witnesses as

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the shooter. Id. 984:20-985:2.

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Rubalcava contends that his defense counsel could not effectively counter the

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prosecution’s argument because defense counsel did not know that the investigating officers had

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falsified their police reports to present three independent and reliable eyewitness identifications of

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Rubalcava, when in fact that the eyewitness identifications were entirely unreliable, if made at all.

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Rubalcava testified, denying involvement in the shooting and stating that he was traveling to

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Hollister for a date when the shooting occurred. See Trial Tr. 754:5-761:9, 773:6-11, Matthias

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Decl. Ex. 23. That testimony was corroborated by Stephanie’s testimony. See id. 658:11-665:25.

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Rubalcava also explained that he stopped in front of the Rodriguez home to flirt with Jennifer, and

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not for any nefarious purpose. See id. 827:12-828:16. However, after deliberating for three days,

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the jury found Rubalcava guilty of attempted murder and the charged gang enhancement. See

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Trial Tr. 1034:27-1036:8, Matthias Decl. Ex. 23.

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Vacating of Conviction and Finding of Actual Innocence

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Years later, the Santa Clara District Attorney’s Office conducted a reinvestigation of
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United States District Court
Northern District of California

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Rubalcava’s case, after which the District Attorney’s Office “didn’t think he was guilty.” See

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Angel Dep. 157:4-12, 160:21-164:10, Matthias Decl. Ex. 54, ECF 219-1. The District Attorney’s

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Office agreed that Rubalcava’s conviction should be vacated, and stipulated to a finding of factual

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innocence. See Stipulated Motion, Matthias Decl. Ex. 1, ECF 207-5. In 2019, Rubalcava’s

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conviction was vacated, all charges were dismissed, and the court made an express finding that he

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was factually innocent. See Order, Matthias Decl. Ex. 3, ECF 207-7; Tr., Matthias Decl. Ex. 2,

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ECF 207-6. He had served seventeen years of his prison sentence.

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Present Action

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Rubalcava filed the present action in June 2020, claiming that misconduct of SJPD officers

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and others led to his wrongful conviction. See Compl., ECF 1. Following dismissal of some

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parties, the only remaining defendants are the City and SJPD officers Joseph Perez, Topui Fonua,

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Steven Spillman, Rafael Nieves, and Ramon Avalos. The operative first amended complaint

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(“FAC”) asserts the following claims against Defendants under 42 U.S.C. § 1983 and state law:

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(1) § 1983 Claim for Fabrication of Evidence in violation of the Fourteenth Amendment against

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Perez, Fonua, Spillman, Nieves, and Avalos; (2) § 1983 Claim for Withholding Evidence in

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violation of the Fourteenth Amendment against Perez, Fonua, Spillman, and Nieves; (3) § 1983

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Claim for Malicious Prosecution in violation of the Fourth and Fourteenth Amendments against

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Perez, Fonua, Spillman, Nieves, and Avalos; (4) § 1983 Claim for Conspiracy against Perez,

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Fonua, Spillman, Nieves, and Avalos; (5) Claim under the Bane Act, Cal. Civ. Code § 52.1,

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against Perez, Fonua, Spillman, and Nieves; (6) Claim for Respondeat Superior and Vicarious

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Liability under Cal. Gov. Code § 815.2 against the City; and (7) Claim for Employer Liability

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under Cal. Gov. Code § 825 against the City.

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II.

LEGAL STANDARD
A party may obtain summary judgment by showing that “there is no genuine dispute as to

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any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

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“The moving party initially bears the burden of proving the absence of a genuine issue of material

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fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). “Where the moving party

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meets that burden, the burden then shifts to the non-moving party to designate specific facts
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demonstrating the existence of genuine issues for trial.” Id. “The court must view the evidence in

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the light most favorable to the nonmovant and draw all reasonable inferences in the nonmovant’s

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favor.” City of Pomona v. SQM North America Corp., 750 F.3d 1036, 1049 (9th Cir. 2014).

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“Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving

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party, there is no genuine issue for trial.” Id. (quotation marks and citation omitted).

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United States District Court
Northern District of California

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III.

DISCUSSION
Defendants assert that they are entitled to summary judgment because “[t]he reality is that

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Rubalcava was convicted not because of any police misconduct, but because there was strong

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evidence of his guilt.” Mot. at 1, ECF 199. They contend that Rubalcava cannot prove the

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constitutional violations alleged in Claims 1-4, which are the § 1983 claims against the officers,

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and that in any event the officers are entitled to qualified immunity with respect to those claims.

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Defendants also argue that Rubalcava cannot prove an essential element of Claim 5, which is the

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state law claim against the officers under the Bane Act, because he cannot show that the officers

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used violence or threats against him personally. Finally, Defendants argue that Claims 6 and 7,

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seeking to hold the City liable for the officers’ alleged violations of the Bane Act, cannot stand

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once summary judgment is granted on the Bane Act claim.

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In his opposition, Rubalcava abandons his claims against Defendant Ramon Avalos. See

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Opp. at 1 n.1, ECF 207. The motion for summary judgment is GRANTED on all claims against

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Avalos. With respect to the § 1983 claims against the remaining officer defendants, Rubalcava

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argues that the record contains sufficient evidence to allow him to proceed to trial, and that the

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officers are not entitled to qualified immunity. With respect to the Bane Act claim against the

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officers, and derivative claims against the City, Rubalcava asserts that summary judgment is

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precluded by the same factual disputes that preclude summary judgment on the § 1983 claims.
Claim 1 – § 1983 Claim for Fabrication of Evidence

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A.

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Claim 1, for fabrication of evidence, is asserted against Perez, Fonua, Spillman, and

26

Nieves. “To prevail on a § 1983 claim of deliberate fabrication, a plaintiff must prove that (1) the

27

defendant official deliberately fabricated evidence and (2) the deliberate fabrication caused the

28

plaintiff’s deprivation of liberty.” Spencer v. Peters, 857 F.3d 789, 798 (9th Cir. 2017).
11

1

Defendants contend that Rubalcava cannot prove either element, and that even if he could, the

2

officers are entitled to qualified immunity.
Before addressing those contentions, the Court observes that Defendants’ opening brief

United States District Court
Northern District of California

3
4

addresses some alleged misconduct that was encompassed by earlier iterations of Rubalcava’s

5

deliberate fabrication claim but does not currently form the basis of the claim, for example,

6

coercion and bribery of witnesses. Rubalcava’s opposition clarifies that his fabrication claim

7

against Perez, Fonua, and Spillman is grounded in those officers’ alleged fabrication of police

8

reports regarding witness identifications of Rubalcava as the shooter.2 His claim against Nieves is

9

grounded in Nieves’ alleged fabrication of a police report setting forth his expert opinion that the

10

shooting of Rodriguez was part of a feud between two Norteño factions. The Court limits its

11

discussion of the fabrication claim to these theories. The Court first discusses the claim against

12

Perez, Fonua, and Spillman, then the claim against Nieves, and lastly the issue of qualified

13

immunity.
1.

14

Perez, Fonua, and Spillman
a.

15

First Element – Official Deliberately Fabricated Evidence

A plaintiff may establish the first element of a fabrication claim – that the defendants

16
17

deliberately fabricated evidence – by direct evidence such as “direct misquotation of witnesses in

18

investigative reports.” Spencer, 857 F.3d at 799. Alternatively, a plaintiff may show that the

19

defendants continued their investigation of the plaintiff “despite the fact that they knew or should

20

have known that he was innocent,” or that the defendants “used investigative techniques that were

21

so coercive and abusive that they knew or should have known that those techniques would yield

22
23
24
25
26
27
28

Rubalcava also asserts that Perez fabricated a police report stating Perez’s opinion that
Rubalcava shot Rodriguez for the benefit of, at the direction of, or in association with West Side
Mob. See Perez Gang Enhancement Report, Matthias Ex. 21, ECF 215-5. In addition, Rubalcava
asserts that Perez, Fonua, and Spillman are liable for deliberate fabrication based on their alleged
use of improper suggestion to elicit false witness identifications of Rubalcava both in and out of
court. The Court need not reach those additional theories of liability, because as discussed herein,
the Court finds that Rubalcava’s deliberate fabrication claim survives summary judgment based on
disputed facts regarding the officers’ alleged fabrication of the police reports regarding witness
identifications. The Court’s decision not to address all possible bases for Rubalcava’s deliberate
fabrication claim against Perez, Fonua, and Spillman does not preclude Rubalcava from asserting
his additional theories at trial.
12
2

1

false information.” Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001); see also Spencer,

2

857 F.3d at 799 (quoting Devereaux).

United States District Court
Northern District of California

3

As the parties moving for summary judgment, Defendants have the initial burden to show

4

that Rubalcava cannot prove that Perez, Fonua, and Spillman deliberately fabricated evidence.

5

Defendants attempt to meet their burden by: (1) asserting that all contemporaneous, admissible

6

evidence shows that the police reports were accurate; (2) asking the Court to disregard contrary

7

witness testimony as internally inconsistent and inconsistent with prior statements and testimony;

8

(3) seeking to exclude contrary witness testimony as the product of inappropriate leading

9

questions; (4) characterizing the alleged falsehoods in the police reports as non-actionable

10

“inaccuracies”; and (5) asserting that the fabrication claim based on the police reports is barred by

11

absolute witness immunity.

12
13

i.

Contemporaneous, Admissible Evidence

Perez authored a police report stating that he showed Rodriguez a photo line-up at the

14

hospital, and that Rodriguez viewed the photos for about five seconds before picking Rubalcava

15

out and stating, “Yeah, that’s the guy that was there. He’s the one that was driving and shot me.”

16

Perez Police Report at 1, Matthias Decl. Ex. 18. Spillman’s police report states that Gonzalez

17

provided the name Lionel Rubalcava as the driver of the black truck, and also provided the

18

information that Rubalcava was a member of West Side Mob. See Spillman Police Report at 3-4,

19

Matthias Decl. Ex. 17. Fonua’s police report states that he and Spillman took Gonzalez to the

20

police station to view a photo line-up, and that Gonzalez “immediately” picked out Rubalcava as

21

the driver of the SUV when Rodriguez was shot. Fonua Police Report at 3, Matthias Decl. Ex. 16.

22

Fonua’s report also states that when showed the same photo line-up, Millan picked out Rubalcava

23

and said he was sure that was the person who shot his brother. See id.

24

In their depositions taken in 2022, Rodriguez, Gonzalez, and Millan testified that these

25

statements in the police reports are false. Rodriguez testified that he told Perez that he could not

26

make a positive identification of the shooter, and that statements to the contrary in the police

27

report were not true. See Rodriguez Dep. 22:19-24:14, Matthias Decl. Ex. 6. Gonzalez testified

28

that he did not give the police Rubalcava’s name, and that when he picked out Rubalcava’s photo
13

1

as someone who “looked like” the shooter, he did not make an immediate or positive

2

identification. See Gonzalez Dep. 44:16-46:8, 171:12-172:14, Matthias Decl. Ex. 10. Millan

3

testified that he told the police repeatedly he did not see the shooter well enough to make an

4

identification, and that to the extent the police report says he did not hesitate to make a positive

5

identification of Rubalcava, the report was untrue. See Millan Dep. 88:21-89:4, 137:6-10,

6

Matthias Decl. Ex. 8.

United States District Court
Northern District of California

7

Rather than conceding that the 2022 deposition testimony of Rodriguez, Gonzalez, and

8

Millan create a factual dispute regarding the accuracy of the police reports, Defendants argue that

9

the accuracy of the police reports cannot be disputed because the reports are corroborated by all

10

contemporaneous, admissible evidence. Defendants have not cited, and the Court has not

11

discovered, any authority for the proposition that the Court may disregard later testimony about an

12

event in favor of contemporaneous testimony. Defendants may argue to a jury that the witnesses’

13

testimony and recorded statements made close to the time of the shooting are more credible than

14

the witnesses’ deposition testimony twenty years later. In fact, Defendants have retained a

15

memory expert to support just such an argument. However, this Court cannot make such a

16

credibility determination at the summary judgment stage. Viewing all of the evidence, including

17

the witnesses’ 2022 deposition testimony, in the light most favorable to Rubalcava, the Court finds

18

that there are disputed issues of fact as to whether Perez, Fonua, and Spillman fabricated their

19

police reports.

20
21

ii.

Inconsistencies in Testimony

Defendants argue that the Court should disregard Rodriguez, Gonzalez, and Millan’s

22

testimony regarding false statements in the police reports on the grounds that the testimony is

23

internally inconsistent and inconsistent with the witnesses’ prior recorded statements and

24

testimony. Defendants cite Cleveland v. Pol’y Mgmt. Sys. Corp., 526 U.S. 795 (1999), and Foster

25

v. Metro. Life Ins. Co., 243 F. App’x 208, 210 (9th Cir. 2007), for the proposition that a witness

26

cannot create disputed facts through contradictory testimony. Cleveland and Foster hold that a

27

party cannot create disputed facts through contradictory testimony. See Cleveland, 526 U.S. at

28

1603-04 (“[A] party cannot create a genuine issue of fact sufficient to survive summary judgment
14

1

simply by contradicting his or her own previous sworn statement (by, say, filing a later affidavit

2

that flatly contradicts that party’s earlier sworn deposition) without explaining the contradiction or

3

attempting to resolve the disparity.”); Foster v. Metro. Life Ins. Co., 243 F. App’x 208, 210 (9th

4

Cir. 2007) (“[W]hen determining whether a party has created facts sufficient to defeat a motion for

5

summary judgment, a court may disregard the party’s sworn testimony if the testimony is

6

internally inconsistent, but otherwise the judge must view the evidence in the light most favorable

7

to the nonmoving party.”).

8

United States District Court
Northern District of California

9

The Ninth Circuit has explained that the rationale underlying this rule “is that a party ought
not be allowed to manufacture a bogus dispute with himself to defeat summary judgment.”

10

Nelson v. City of Davis, 571 F.3d 924, 928 (9th Cir. 2009). However, “[t]hat concern does not

11

necessarily apply when the dispute comes from the sworn deposition testimony of another

12

witness” who is not a party. Id. In that circumstance, the Ninth Circuit has held, “[t]he more

13

appropriate analysis is the traditional summary judgment standard” under which “[a] district court

14

has the responsibility to construe all facts in the light most favorable to the non-moving party.”

15

Nelson v. City of Davis, 571 F.3d 924, 928 (9th Cir. 2009).

16
17
18
19

Accordingly, the Court finds that there is no basis to disregard the witnesses’ testimony
based on any internal inconsistencies or any inconsistencies with prior statements and testimony.
iii.

Testimony Elicited by Leading Questions

Defendants argue that Rodriguez, Gonzalez, and Millan’s testimony regarding falsehoods

20

in the police reports should be excluded on the basis that the testimony was elicited by leading

21

questions. Federal Rule of Evidence 611(c) provides that, “Leading questions should not be used

22

on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court

23

should allow leading questions: (1) on cross-examination; and (2) when a party calls a hostile

24

witness, an adverse party, or a witness identified with an adverse party.” Fed. R. Evid. 611(c).

25

Defendants cite Weil v. Citizens Tel. Servs., 922 F.3d 993, 998 (9th Cir. 2019), for the general rule

26

that courts may consider only admissible evidence on summary judgment, and Wilson v. Frito-Lay

27

N. Am., Inc., 260 F. Supp. 3d 1202, 1210 (N.D. Cal. 2017), in which the district court excluded

28

testimony elicited by leading questions when deciding a summary judgment motion. Defendants
15

United States District Court
Northern District of California

1

have not established that all of the witness testimony at issue – that is, all of the testimony in

2

which Rodriguez, Gonzalez, and Millan dispute the police reports’ descriptions of their

3

identifications of Rubalcava – was the product of leading questions.

4

Moreover, even if some of the relevant testimony was elicited by leading questions, the

5

same testimony could be presented at trial through proper questioning of the witnesses. “At the

6

summary judgment stage, we do not focus on the admissibility of the evidence’s form. We instead

7

focus on the admissibility of its contents.” Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir.

8

2003). In Fraser, the Ninth Circuit found it proper to consider the contents of the plaintiff’s diary

9

on summary judgment, even though the diary itself was inadmissible hearsay, because the

10

information in the diary could be presented at trial through the plaintiff’s direct testimony. See id.

11

In the present case, all of the testimony in question is within the witnesses’ personal knowledge

12

and could be presented at trial in admissible form through proper questioning.

13
14
15
16

The Court thus finds that the witnesses’ testimony is not subject to exclusion as the product
of leading questions.
iv.

False Statements as Non-Actionable Inaccuracies

Defendants characterize the alleged falsehoods in the police reports as non-actionable

17

“inaccuracies” that cannot support a claim for deliberate fabrication under Gausvik v. Perez, 345

18

F.3d 813 (9th Cir. 2003). In Gausvik, the Ninth Circuit held that an affidavit for probable cause

19

containing errors was insufficient to support a claim for deliberate fabrication of evidence. See id.

20

at 817. The affidavit represented that three children had tested “positive” for sexual abuse when

21

really the tests were only “suggestive” or “consistent” with abuse, and also represented that eight

22

children had accused the suspect of abuse when only two had done so. Id. The Ninth Circuit held

23

that although the affidavit indicated that the officer had been careless with the facts, that

24

carelessness did not rise to the level of deliberate fabrication of evidence. Defendants appear to be

25

asking this Court to find as a matter of law that, like the alleged falsehoods in the Gausvik

26

affidavit, the alleged falsehoods in the police reports do not rise beyond the level of mere

27

carelessness. However, more recent Ninth Circuit cases limit application of Gausvik and support

28

Rubalcava’s contention that there are triable issues of fact.
16

United States District Court
Northern District of California

1

One such case is Caldwell v. City & Cnty. of San Francisco, 889 F.3d 1105 (9th Cir.

2

2018), cited by Rubalcava. In Caldwell, the plaintiff spent nearly twenty years in prison on a

3

murder conviction before obtaining his release by means of a petition for writ of habeas corpus.

4

See id. at 1108 & n.1. Upon release, the plaintiff brought a § 1983 action against police officers,

5

the city, and the county, alleging that officers fabricated evidence against him during the murder

6

investigation. See id. at 1108. The Ninth Circuit held that an officer’s alleged fabrication of a

7

statement by the plaintiff, and memorialization of that statement in falsified notes, was sufficient

8

to support a claim for deliberate fabrication of evidence. See id. at 1114. The Ninth Circuit

9

distinguished the facts before it from those in Gausvik, finding summary judgment to be

10

inappropriate where “the potential ‘errors’ are not obviously the product of carelessness,” and

11

there was a factual dispute as to whether the officer “intentionally fabricated his notes.” Id. at

12

1114-15.

13

In light of Caldwell’s limitation of Gausvik, and viewing the evidence in the light most

14

favorable to Rubalcava, this Court finds that Defendants have failed to show that the asserted

15

errors in the police reports were obviously the product of carelessness rather than intentional

16

fabrication. Accordingly, Defendants have failed to show that Perez, Fonua, and Spillman are

17

entitled to summary judgment on the ground that the asserted errors in the police reports are

18

merely non-actionable inaccuracies.

19
20

v.

Absolute Witness Immunity

Defendants argue that Rubalcava’s claim for deliberate fabrication of the police reports is

21

barred by absolute witness immunity. “Witnesses, including police officers, are absolutely

22

immune from liability for testimony at trial[.]” Lisker v. City of Los Angeles, 780 F.3d 1237, 1241

23

(9th Cir. 2015) (citing Briscoe v. LaHue, 460 U.S. 325, 345-46 (1983)). “Absolute witness

24

immunity also extends to preparatory activities ‘inextricably tied’ to testimony[.]” Lisker, 780

25

F.3d at 1241 (citing Franklin v. Terr, 201 F.3d 1098, 1102 (9th Cir. 2000). In Franklin, the

26

plaintiff obtained relief from a murder conviction through a petition for writ of habeas corpus, and

27

thereafter brought a § 1983 action against a psychiatrist and therapist who testified at the

28

plaintiff’s criminal trial. See Franklin, 201 F.3d at 1100. The plaintiff attempted to circumvent
17

1

the psychiatrist’s absolute witness immunity by alleging that the psychiatrist conspired with others

2

to present false testimony. See id. 1101. The Ninth Circuit held that the psychiatrist’s absolute

3

witness immunity extended to the conspiracy claim, because her “alleged conspiratorial behavior

4

is inextricably tied to her testimony.” Id. at 1102.

United States District Court
Northern District of California

5

In Lisker, the Ninth Circuit clarified that immunity for pre-testimony conduct does not

6

extend to fabricating reports, investigative notes, and similar documents. The plaintiff in Lisker

7

served twenty-six years of a prison term after being convicted of second degree murder, but he

8

was released after a federal judge granted a petition for writ of habeas corpus and the state

9

dismissed the charges. See Lisker, 780 F.3d at 1238. The plaintiff thereafter brought a § 1983

10

action against two detectives for fabricating reports, investigative notes, and photographs of the

11

crime scene that were placed in the detectives’ “Murder Book” during the homicide investigation.

12

See id. at 1239. The detectives testified during preliminary proceedings and at trial, and argued

13

that the notes and reports in the Murder Book were “inextricably tied” to their testimony because

14

their purpose was to memorialize the substance of eventual testimony. See id. 1242. The Ninth

15

Circuit rejected the detectives’ argument, holding that “police investigative materials have

16

evidentiary value wholly apart from assisting trial testimony – they comprise part of the

17

documentary record before the prosecution and defense and affect charging decisions, plea

18

bargaining, and cross-examination of the investigating officers.” Id. (internal quotation marks and

19

citation omitted). The Ninth Circuit stated that “[t]his non-testimonial evidentiary value

20

distinguishes the materials in the Murder Book from pre-trial activity aimed exclusively at

21

influencing testimony.” Id. The Lisker court held that the detectives could not bring those

22

materials within the scope of absolute witness immunity by testifying, opining that “a pretrial, out-

23

of-court effort to . . . fabricate physical evidence . . . is not inextricably tied – or tied at all – to any

24

witness’ own testimony, even [i]f a potential witness does happen to be involved.” Id. (internal

25

quotation marks and citation omitted).

26

Following Lisker, this Court concludes that the potentially fabricated police reports do not

27

fall within the scope of absolute witness immunity, even though the officers who prepared the

28

reports testified at Rubalcava’s criminal trial.
18

vi.

1
2

The Court concludes that Defendants have not met their initial burden on summary

3

judgment to show that Rubalcava cannot satisfy the first element of his deliberate fabrication

4

claim against Perez, Fonua, and Spillman.

5

b.

Second Element – Causation

6

“To establish the second element of causation, the plaintiff must show that (a) the act was

7

the cause in fact of the deprivation of liberty, meaning that the injury would not have occurred in

8

the absence of the conduct; and (b) the act was the ‘proximate cause’ or ‘legal cause’ of the injury,

9

meaning that the injury is of a type that a reasonable person would see as a likely result of the

10
11

United States District Court
Northern District of California

Conclusion re First Element

conduct in question.” Spencer, 857 F.3d at 798.
As the parties moving for summary judgment, Defendants have the initial burden to show

12

that Rubalcava cannot satisfy the causation element. Defendants argue that Rubalcava cannot

13

prove that the alleged fabrication of the police reports was the cause of his conviction and

14

incarceration, because the police reports were not introduced as evidence at trial, and therefore

15

could not have been considered by the jury in rendering a guilty verdict. In opposition, Rubalcava

16

argues that he can satisfy the causation element by proving that the prosecutor considered the

17

fabricated police reports when deciding whether to prosecute, because if Rubalcava had not been

18

prosecuted, he would not have been convicted and incarcerated.

19

In Caldwell, the plaintiff (Caldwell) spent nearly twenty years in prison on a murder

20

conviction before obtaining his release through a petition for writ of habeas corpus. See Caldwell,

21

889 F.3d at 1108 & n.1. After his release, Caldwell filed a § 1983 action alleging that

22

investigating police officers fabricated evidence during the murder investigation. See id. at 1108.

23

The district court granted summary judgment for the defendants. See id. The district court held

24

that Caldwell had raised a triable issue as to whether one officer, Crenshaw, had fabricated

25

evidence. See id. at 1111-12. However, district court concluded that the prosecutor’s

26

“presumptively independent decision to charge and prosecute Caldwell broke the chain of

27

causation between the fabricated evidence and Caldwell’s injury.” Id.

28

The Ninth Circuit reversed and remanded. Addressing the question of “what constitutes an
19

1

injury” in the context of the § 1983 claim, the Ninth Circuit held that a “plaintiff need not be

2

convicted on the basis of the fabricated evidence to have suffered a deprivation of liberty – being

3

criminally charged is enough.” Caldwell, 889 F.3d at 1115. The Ninth Circuit went on to find

4

that there was a disputed issue of fact whether the prosecutor relied on the potentially fabricated

5

evidence in deciding to charge and prosecute Caldwell. Id. at 1115-18. The Caldwell court

6

concluded that “a jury could reasonably conclude that the prosecutor relied on the falsified

7

statement in deciding to charge Caldwell,” and that as a result, “ Caldwell raises a triable issue as

8

to causation[.]” Id. at 1118.

United States District Court
Northern District of California

9

Applying Caldwell, this Court concludes that Rubalcava may satisfy the causation element

10

by proving that the prosecutor relied on the allegedly fabricated police reports in making the

11

decision to prosecute. Defendants argue that Caldwell’s holding on causation is limited to cases in

12

which the plaintiff claims injuries flowing solely from the charging decision and not from the

13

plaintiff’s subsequent conviction and incarceration. Nothing in Caldwell suggests that the plaintiff

14

there, who brought a deliberate fabrication claim after being incarcerated for almost twenty years,

15

limited his claim to injuries flowing solely from the charging decision and not from the subsequent

16

conviction and incarceration. Accordingly, the Court declines to apply the narrow reading of

17

Caldwell urged by Defendants.

18

Defendants argue that Rubalcava cannot prove that the prosecutor relied on the allegedly

19

fabricated police reports when making the prosecution decision. Thus, Defendants argue, the

20

chain of causation between the allegedly fabricated police reports and Rubalcava’s injuries is

21

broken. In support of this argument, Defendants submit several excerpts from the deposition of

22

the prosecutor, Mark Duffy, discussing the evidence he considered in deciding whether to go

23

forward with prosecution of Rubalcava. See Duffy Dep. 322:16-335:2, 342:18-23, 350:7-370:2,

24

Pritchard Decl. Ex. 38, ECF 199-7.

25

The cited excerpts do not indicate whether or not the potentially fabricated police reports

26

were part of the evidentiary record that Mr. Duffy reviewed prior to authorizing the prosecution of

27

Rubalcava. “A prosecutor’s judgment cannot be said to be independent where the prosecutor

28

considers potentially fabricated evidence without knowing that the evidence might be
20

1

fundamentally compromised and misleading.” Caldwell, 889 F.3d at 1117. A prosecutor’s

2

“consideration of potentially fabricated evidence rebuts any presumption of independent judgment

3

and creates a factual issue for the jury” on the issue of causation. Id. at 1117-18. Thus,

4

Defendants’ failure to establish that the police reports were not in the evidentiary record reviewed

5

by Mr. Duffy constitutes a failure to meet their initial burden to show that there are no disputed

6

facts as to causation.

United States District Court
Northern District of California

7

Even if Defendants had met their initial burden, Rubalcava submits excerpts of Mr.

8

Duffy’s deposition – not cited by Defendants – in which Mr. Duffy stated that he relied on the

9

police reports in determining that there was probable cause to pursue the charge of attempted

10

murder against Rubalcava. See Duffy Dep. 75:21-76:25, Matthias Decl. Ex. 55, ECF 219-2. Mr.

11

Duffy also stated that he relied on the police reports in good faith, assuming that the reports were

12

accurate and written in good faith. See id. Under Caldwell, this evidence would be sufficient to

13

create a triable issue for the jury.

14

The Court concludes that Defendants have not met their initial burden on summary

15

judgment to show that Rubalcava cannot satisfy the second element of his deliberate fabrication

16

claim against Perez, Fonua, and Spillman. Even if they had, Rubalcava has demonstrated the

17

existence of disputed facts with respect the issue of causation.

18
19

2.

Nieves

Rubalcava’s deliberate fabrication claim against Nieves is based on Nieves’ alleged

20

fabrication of a police report setting forth his expert opinion that the shooting of Rodriguez was

21

part of a feud between two Norteño factions, West Side Mob and Varrio Horseshoe. See Nieves

22

Police Report, Matthias Decl. Ex. 20, ECF 215-4. Under a subheading titled “Gang Relatedness,”

23

Nieves’ report states, “Based on the details documented in the investigation of this case, it is my

24

opinion that the criminal conduct committed by suspect Rubalcava was for the benefit of West

25

Side Mob (WSM) with the intent to promote, further, and assist in criminal conduct by West Side

26

Mob members.” Id. at 1. The report provides the bases for Nieves’ opinion, including a

27

description of the circumstances of the shooting, information regarding Norteño gangs, and a

28

statement that “[c]urrently both West Side Mob and Varrio Horseshoe have been involved in an
21

1

on-going feud.” Id. at 1-2.

2

Defendants contend that Rubalcava cannot prove either element of his deliberate

3

fabrication claim against Nieves. Again, those elements are that (1) the defendant deliberately

4

fabricated evidence and (2) the deliberate fabrication caused the plaintiff’s deprivation of liberty.

5

See Spencer, 857 F.3d at 798.
a.

6

United States District Court
Northern District of California

7

First Element – Official Deliberately Fabricated Evidence

Rubalcava may establish the first element of his fabrication claim against Nieves by direct

8

evidence, for example by proving that his police report contains a direct misquotation of

9

witnesses; or by proving that Nieves continued his investigation of Rubalcava despite the fact that

10

he knew or should have known Rubalcava was innocent; or by proving that Nieves used

11

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

12

known that those techniques would yield false information. See Spencer, 857 F.3d at 799;

13

Devereaux, 263 F.3d at 1076. Unlike the police reports regarding witness identification authored

14

by Perez, Fonua, and Spillman, Nieves’ report does not contain any alleged misquotations of

15

witnesses. Accordingly, Rubalcava will have to prove the first element of his deliberate

16

fabrication claim by showing that Nieves continued investigating Rubalcava even though Nieves

17

knew or should have known he was innocent, or by showing that Nieves’ police report was so

18

coercive and abusive that Nieves knew or should have known it would yield false information.

19

Defendants argue that Rubalcava cannot make these showings for several reasons. First,

20

Defendants contend that Nieves’ police report falls within the scope of absolute witness immunity,

21

because it is inextricably tied to the expert testimony he gave a trial. Second, Defendants argue

22

that Nieves’ report was not baseless but was, in fact, accurate. Third, Defendants assert that an

23

expert cannot be held liable for deliberate fabrication based on an opinion, even if the opinion later

24

turns out to be wrong.

25
26

i.

Absolute Witness Immunity

The Ninth Circuit recently addressed the application of absolute witness immunity to

27

expert reports in Krause v. Peele, 851 F. App’x 36 (9th Cir. 2021). The Ninth Circuit stated the

28

general rule that “[t]estifying witnesses are entitled to absolute immunity for their testimony,
22

United States District Court
Northern District of California

1

although that immunity does not shield non-testimonial conduct or conduct that is not inextricably

2

tied to their testimony.” Id. (internal quotation marks and citation omitted). The Ninth Circuit

3

also stated that the timing of the challenged conduct informs the determination whether it falls

4

within the scope of absolute witness immunity. See id. In Krause, the expert report at issue was

5

found to be inextricably tied to the expert’s trial testimony, because the report had to be prepared

6

in order for the expert to be allowed to testify at trial under Arizona law. See id. The Ninth

7

Circuit noted that the expert prepared the report several months after the investigation had been

8

completed, when the defendant had already been arrested and indicted. See id. The expert’s role

9

was limited to evaluation of evidence that had already been collected. See id. Under those

10

circumstances, the Ninth Circuit determined that the expert report was “best seen as testimonial in

11

nature prepared with an eye towards trial,” and therefore was within the scope of absolute witness

12

immunity. Id.

13

Krause is distinguishable from the present case, in which the report at issue is not merely

14

the report of a trained expert, drafted in preparation for trial after completion of the investigation.

15

Here, Nieves prepared the report in his role as a police officer, as part of the investigation. Under

16

these circumstances, the Court is not persuaded that the report is shielded by absolute witness

17

immunity simply because Nieves later was qualified as an expert and testified to some of the

18

opinions contained in the report. Unlike the expert report in Krause, Nieves’ police report is not

19

“testimonial in nature prepared with an eye toward trial.” Accordingly, the Court finds that on the

20

facts of this case, absolute witness immunity does not apply.

21
22

ii.

Not Baseless

The Court finds much stronger Defendants’ argument that the record evidence does not

23

support Rubalcava’s position that Nieves’ report was baseless and prepared for the purpose of

24

fabricating a motive for the shooting. Defendants point to evidence that there was, in fact, a feud

25

between the Norteño gangs West Side Mob and Varrio Horseshoe. For example, Daniel Cerecerez

26

testified at Rubalcava’s trial that there were problems between West Side Mob and Varrio

27

Horseshoe in San Jose in 2001 and 2002. See Trial Tr. 295:14-297:25, Pritchard Decl. Ex. 1, ECF

28

199-3. Cerecerez testified that he was stabbed by members of Varrio Horseshoe because he
23

1

associated with West Side Mob members. See id. Nieves had significant experience as a gang

2

investigator with SJPD, and testified as an expert in that subject at Rubalcava’s trial. See Trial Tr.

3

55:24-56:4, Matthias Decl. Ex. 23. Nieves’ report explains the bases for his opinion that

4

Rubalcava shot Rodriguez as part of a gang dispute. See Nieves Police Report at 1-2, Matthias

5

Decl. Ex. 20. This evidence is sufficient to meet Defendants’ initial burden to show that the

6

opinions in Nieves’ report were not fabricated, but rather good faith expert opinions regarding

7

possible gang involvement in Rodriguez’s shooting.

8

United States District Court
Northern District of California

9

The burden thus shifts to Rubalcava to present evidence from which a reasonable trier of
fact could conclude that Nieves’ report was fabricated. Rubalcava attempts to meet this burden by

10

arguing that Nieves’ report was wholly unsupported; that anyone familiar with San Jose gang

11

culture would have understood Nieves’ opinion to be wildly implausible; and that Nieves ignored

12

substantial evidence that the shooter was actually a Sureño, not a Norteño. As noted above,

13

Defendants have presented evidence from which a reasonable trier of fact could find that Nieves’

14

report was supported. Rubalcava bases his assertion regarding he implausibility of Nieves’ report

15

in large part on the opinion of his own retained gang expert, Dr. Patrick Lopez-Aguado. See

16

Lopez-Aguado Expert Report, Matthias Decl. Ex. 27, ECF 216-1. That Nieves’ expert opinion

17

clashes with the opinion of Rubalcava’s retained gang expert does not suggest that Nieves’ expert

18

opinion was fabricated. Finally, Rubalcava does not show that Nieves ignored substantial

19

evidence that the shooter was a Sureño. The only record evidence of Sureño involvement cited by

20

Rubalcava is the fact that some, but not all, witnesses described the occupants of the shooter’s

21

SUV as wearing blue. See Police Report Compilation at 2-10, Matthias Decl. Ex. 69.

22

The Court finds that Rubalcava has failed to meet his burden to present evidence from

23

which a reasonable trier of fact could find that Nieves’ report was fabricated. Thus, the motion for

24

summary judgment on Claim 1 is GRANTED as to Nieves.

25
26

iii.

Expert Opinion

Defendants go beyond arguing that Nieves cannot be liable for fabrication based on his

27

police report in this case, and argue that an expert can never be held liable for deliberate

28

fabrication based on an opinion, even if the opinion later turns out to be wrong. The cases upon
24

1

which Defendants rely do not stand for this broad proposition. See Gausvik, 345 F.3d at 817;

2

Richards v. Cnty. of San Bernardino, No. 19-56205, 2022 WL 2292830, at *1 (9th Cir. June 24,

3

2022). However, Nieves is entitled to summary judgment on the ground discussed above.
b.

United States District Court
Northern District of California

4

Second Element – Causation

5

Having determined that Nieves is entitled to summary judgment because Defendants have

6

shown Rubalcava cannot establish the first element of the deliberate indifference claim, the Court

7

need not reach Defendants’ argument on the second element. The Court touches briefly on the

8

argument for the sake of completeness. Defendants argue that Nieves’ report was not introduced

9

at trial, and thus it could not have been the cause of Rubalcava’s conviction and incarceration.

10

That argument is without merit, because as discussed above, under Caldwell Rubalcava may

11

satisfy the causation element by proving that the prosecutor relied on the allegedly fabricated

12

police report in making the decision to prosecute. Defendants need not prevail on their causation

13

argument to obtain summary judgment for Nieves, however, in light of the Court’s conclusions

14

regarding the first element.

15
16

3.

Qualified Immunity

Defendants argue that even if the officers deliberately fabricated evidence, they are entitled

17

to qualified immunity. When evaluating an assertion of qualified immunity, “a court considers

18

whether (1) the state actor’s conduct violated a constitutional right and (2) the right was clearly

19

established at the time of the alleged misconduct.” Gordon v. Cnty. of Orange, 6 F.4th 961, 967-

20

68 (9th Cir. 2021). “Either question may be addressed first, and if the answer to either is ‘no,’ then

21

the state actor cannot be held liable for damages.” Id. at 968.

22

With respect to prong one, the Court has determined that there are factual disputes as to

23

whether Perez, Fonua, and Spillman deliberately fabricated their police reports by stating that

24

witnesses had made unequivocal identifications of Rubalcava as the shooter when they had not

25

done so, by misquoting witnesses, and by making false statements regarding the circumstances of

26

the reported witness identifications. Defendants argue that they are entitled to qualified immunity

27

under the second prong of the analysis, under which the Court must determine whether the right

28

allegedly violated was clearly established at the time of the alleged misconduct.
25

1
2

precedent. If the right is clearly established by decisional authority of the Supreme Court or this

3

Circuit, our inquiry should come to an end.” Moore v. Garnand, 83 F.4th 743, 750 (9th Cir. 2023)

4

(quotation marks and citation omitted, alteration in the original). “There need not be a case

5

directly on point for a right to be clearly established, [but] existing precedent must have placed the

6

statutory or constitutional question beyond debate.” Simmons v. G. Arnett, 47 F.4th 927, 934 (9th

7

Cir. 2022) (quotation marks and citation omitted, alteration in original). “The plaintiff bears the

8

burden of proving that the right allegedly violated was clearly established at the time of the

9

violation.” Id. at 934-35.

10

United States District Court
Northern District of California

“In the Ninth Circuit, we begin [the clearly established] inquiry by looking to binding

Rubalcava asserts that the right allegedly violated by Perez, Fonua, and Spillman’s

11

fabrication of evidence was clearly established in Devereaux v. Abbey, 263 F.3d 1070 (9th Cir.

12

2001). In Devereaux, the Ninth Circuit held that “there is a clearly established constitutional due

13

process right not to be subjected to criminal charges on the basis of false evidence that was

14

deliberately fabricated by the government.” Id. at 1074-75. In the present case, Rubalcava claims

15

that Perez, Fonua, and Spillman deliberately fabricated their police reports to make it appear that

16

three separate eyewitnesses provided reliable, unequivocal identifications of Rubalcava as the

17

shooter, and that the prosecutor relied on those police reports when making the decision whether

18

to prosecute Rubalcava for attempted murder. This claim falls squarely within the holding of

19

Devereaux. Consequently, Defendants are not entitled to qualified immunity.

20

Defendants argue that Devereaux defines the right at too high a level of generality.

21

According to Defendants, the Ninth Circuit did not recognize a fabrication claim based on

22

misstatements in an investigative report until 2009, in Costanich v. Dep’t of Soc. & Health Servs.,

23

627 F.3d 1101 (9th Cir. 2010). In Costanich, the Ninth Circuit clarified that a deliberate

24

fabrication claim could be proved either by indirect methods discussed in Devereaux – i.e.,

25

showing that the defendants continued their investigation even when they knew or should have

26

known the plaintiff was innocent – or by direct evidence such as “direct misquotation of witnesses

27

in investigative reports.” Costanich, 627 F.3d at 1111-14. That Costanich expanded the methods

28

available to prove violation of the constitutional right recognized in Devereaux does not change
26

1

the fact that the right itself was recognized in Devereaux in 2001. Devereaux’s statement of the

2

right not to be subjected to criminal charges based on false evidence deliberately fabricated by the

3

government could not be more clear, and was sufficient to put Defendants on notice that they were

4

constitutionally prohibited from falsifying eyewitness identifications in their police reports.

5
6

The Court finds that Defendants are not entitled to qualified immunity with respect to the
deliberate fabrication claim.
4.

7
8

United States District Court
Northern District of California

9

Conclusion

In conclusion, Defendants’ motion for summary judgment on Claim 1 is GRANTED as to
Nieves and DENIED as to Perez, Fonua, and Spillman.
Claim 2 – § 1983 Claim for Withholding Evidence

10

B.

11

Claim 2, for withholding evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963),

12

is asserted against Perez, Fonua, Spillman, and Nieves. The Brady claim is based on the officers’

13

alleged failure to disclose the true circumstances of the eyewitness identifications of Rubalcava,

14

specifically, that the witnesses either said they could not make an identification or made an

15

equivocal identification.

16

Defendants argue that Rubalcava conflates his theories of liability for fabrication and

17

Brady violations and cannot establish the elements of a Brady claim, Rubalcava is estopped from

18

proceeding on the Brady claim, and Defendants are entitled to qualified immunity. In opposition,

19

Rubalcava argues that there is sufficient evidence to proceed to trial on the Brady claim, estoppel

20

does not lie, and the officers are not entitled to qualified immunity.

21

1.

Elements of Brady Claim

22

To prevail on a claim under Brady, the plaintiff must prove that “(1) the withheld evidence

23

was favorable either because it was exculpatory or could be used to impeach, (2) the evidence was

24

suppressed by the government, and (3) the nondisclosure prejudiced the plaintiff.” Smith v.

25

Almada, 640 F.3d 931, 939 (9th Cir. 2011). Evidence is material “if there is a reasonable

26

probability that, had the evidence been disclosed to the defense, the result of the proceeding would

27

have been different.” Bailey v. Rae, 339 F.3d 1107, 1115 (9th Cir. 2003) (internal quotation

28

marks and citation omitted). In order to show prejudice, the plaintiff need not show that it is more
27

United States District Court
Northern District of California

1

likely than not that the withheld evidence would have resulted in his acquittal, but only that the

2

withheld evidence “could reasonably be taken to put the whole case in such a different light as to

3

undermine confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419, 435 (1995).

4

As the parties moving for summary judgment, Defendants have the initial burden to show

5

that Rubalcava cannot prove these elements. Defendants seek to do so by arguing that the Brady

6

claim relies largely on the same evidence proffered in support of the deliberate fabrication claim,

7

which Defendants contend is baseless. Defendants’ argument is meritorious with respect to

8

Nieves, as Defendants have demonstrated an absence of record evidence of any wrongdoing

9

relating to his report. Rubalcava does not offer any evidence or argument that would support a

10

Brady claim against Nieves. Accordingly, the motion for summary judgment on Claim 2 is

11

GRANTED as to Nieves.

12

As discussed above, however, the Court finds that there are disputed facts as to whether

13

Perez, Fonua, and Spillman deliberately fabricated evidence regarding the identifications of

14

Rubalcava as the shooter by eyewitnesses Rodriguez, Gonzalez, and Millan. Rubalcava cites

15

several cases holding that such conduct, if proved, is sufficient to support a Brady claim. See, e.g.,

16

Carrillo v. Cnty. of Los Angeles, 798 F.3d 1210, 1226 (9th Cir. 2015) (holding that a Brady claim

17

may be based on officers’ failure to disclose prior statements from testifying eyewitnesses

18

showing uncertainty regarding identifications); Trulove v. D’Amico, No. 16‑CV‑050-YGR, 2018

19

WL 1070899, at *6-7 (N.D. Cal. Feb. 27, 2018) (denying summary judgment on Brady claim

20

based on determination that a reasonable jury could determine that the defendants failed to

21

disclose evidence concerning the circumstances under which eyewitness identifications and

22

statements were obtained). Information regarding eyewitnesses’ uncertainty when identifying the

23

defendant is material because it may be used to impeach. See Carrillo, 798 F.3d at 1225 (“Had

24

this evidence been disclosed, the defense could have used it to impeach the eyewitnesses’

25

identifications of [the defendant] as the killer.”). And here, where the government’s entire case

26

turned on eyewitness testimony, and the prosecutor emphasized how unlikely it was that multiple

27

eyewitnesses would have identified Rubalcava by happenstance, the withheld evidence reasonably

28

could have “put the whole case in such a different light as to undermine confidence in the verdict.”
28

1
2

Defendants argue that a Brady claim cannot be based on the same facts as a deliberate

3

fabrication claim. Defendants support this argument with citations to out of circuit authority. See

4

Saunders-El v. Rohde, 778 F.3d 556, 562 (7th Cir. 2015) (rejecting Brady claim based on officers’

5

“keeping quiet about their own wrongdoing”); Harris v. Kuba, 486 F.3d 1010, 1016-17 (7th Cir.

6

2007) (rejecting Brady claim based on officer’s fabricated statements); Lefever v. Ferguson, 645

7

F. App’x 438, 444 (6th Cir. 2016) (same). This Court declines to follow the cited authority given

8

the Ninth Circuit’s holding in Carrillo that an officers’ failure to disclose prior statements from an

9

eyewitness, showing uncertainty regarding identifications, can support a Brady claim.

10
11

United States District Court
Northern District of California

See Kyles, 514 U.S. at 435.

12
13

The Court finds that Defendants have failed to meet their initial burden to show that
Rubalcava cannot prove the elements of his Brady claim against Perez, Fonua, and Spillman.
2.

Estoppel

Defendants argue that Rubalcava is judicially estopped from asserting the present Brady

14

claim against Perez, Fonua, and Spillman. Defendants argue that in his state court habeas petition,

15

Rubalcava argued that his trial counsel had all necessary materials to impeach Rodriguez,

16

Gonzalez, and Millan regarding their witness identifications, but failed to use those materials to do

17

so. See Pet., Pritchard Ex. 12, ECF 199-3. Rubalcava’s habeas arguments were made in the

18

context of a claim for ineffective assistance of trial counsel. See id. Defendants also point to

19

Rubalcava’s stipulation that no witness was “less than truthful” in his criminal proceedings. See

20

Stip., Pritchard Ex. 15 n.1, ECF 199-4. That stipulation was made in the context of Rubalcava’s

21

attempt to obtain a judicial finding of actual innocence. See id. Relying on Milton H. Greene

22

Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983, 993 (9th Cir. 2012), Defendants contend

23

that Rubalcava should not be permitted to take inconsistent positions in this Court.

24

In Milton H. Greene Archives, the Ninth Circuit explained that judicial estoppel is “an

25

equitable doctrine invoked not only to prevent a party from gaining an advantage by taking

26

inconsistent positions, but also because of general considerations of the orderly administration of

27

justice and regard for the dignity of judicial proceedings, and to protect against a litigant playing

28

fast and loose with the courts.” Milton H., 692 F.3d at 993 (internal quotation marks and citation
29

1

omitted). “[C]ircumstances where the doctrine may apply are probably not reducible to any

2

general formulation.” Id. (internal quotation marks and citation omitted). Courts may consider

3

three factors to decide whether to apply the doctrine: (1) whether the party’s later position is

4

“clearly inconsistent” with its earlier position; (2) whether the party has succeeded in persuading a

5

court to accept that party’s earlier position; and (3) “whether the party seeking to assert an

6

inconsistent position would derive an unfair advantage or impose an unfair detriment on the

7

opposing party if not estopped.” Id. at 994.

8

United States District Court
Northern District of California

9

After consideration of these factors, the Court is not persuaded that application of judicial
estoppel is appropriate here. In essence, Defendants seek to bar Rubalcava from proceeding on his

10

Brady claim based on positions he took while seeking habeas relief and an adjudication of actual

11

innocence. Even assuming that the first two factors above are met, the Court is at a loss to discern

12

how allowing Rubalcava to proceed with his current Brady claim would give him an unfair

13

advantage, or impose an unfair detriment upon Defendants. The Court therefore declines to apply

14

the judicial estoppel doctrine here.
3.

15
16

Qualified Immunity

Defendants argue that even if the officers violated Brady, they are entitled to qualified

17

immunity. As noted above, Rubalcava has the burden to show that the right allegedly violated

18

was clearly established at the time of the violation. The Court has no difficulty determining that

19

Rubalcava has satisfied that burden by directing the Court to the Ninth Circuit’s statement in

20

Carrillo that “[b]ecause it was clearly established by 1984 that police officers were bound by

21

Brady, and that evidence undermining the credibility of government witnesses fell within Brady’s

22

ambit, it would have been clear to any reasonable officer that the nondisclosure of this evidence

23

was unlawful.” Carrillo, 798 F.3d at 1226.

24
25
26
27
28

The Court finds that Defendants are not entitled to qualified immunity with respect to the
Brady claim.
4.

Conclusion

In conclusion, Defendants’ motion for summary judgment on Claim 2 is GRANTED as to
Nieves and DENIED as to Perez, Fonua, and Spillman.
30

C.

2

Claim 3, for malicious prosecution, is asserted against Perez, Fonua, Spillman, and Nieves.

3

Defendants argue that Rubalcava cannot establish the elements of his malicious

4

prosecution claim and that even if he could, the officers are entitled to qualified immunity. In

5

opposition, Rubalcava argues that there is sufficient evidence to proceed to trial on the malicious

6

prosecution claim and that the officers are not entitled to qualified immunity.

7
8

United States District Court
Northern District of California

Claim 3 – § 1983 Claim for Malicious Prosecution

1

1.

Elements of Malicious Prosecution Claim

“In order to prevail on a § 1983 claim of malicious prosecution, a plaintiff must show that

9

the defendants prosecuted [him] with malice and without probable cause, and that they did so for

10

the purpose of denying [him] equal protection or another specific constitutional right.” Lassiter v.

11

City of Bremerton, 556 F.3d 1049, 1054 (9th Cir. 2009) (internal quotation marks and citation

12

omitted, alterations in original). Federal courts look to state law to define these elements of a

13

§ 1983 malicious prosecution claim. See Rezek v. City of Tustin, 684 F. App’x 620, 621 (9th Cir.

14

2017) (“However, the elements of Rezek’s malicious prosecution claims are controlled by

15

California state law.”); Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004) (“[W]e

16

have incorporated the relevant elements of the common law tort of malicious prosecution into our

17

analysis under § 1983.”); Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987)

18

(applying California state law to elements of § 1983 malicious prosecution claim).

19

In addition to the elements listed above, “[a]n individual seeking to bring a malicious

20

prosecution claim must generally establish that the prior proceedings terminated in such a manner

21

as to indicate his innocence.” Awabdy, 368 F.3d at 1068. A criminal defendant may sue not only

22

the prosecutor for malicious prosecution, but also police officers and investigators who wrongfully

23

caused his prosecution. See Usher, 828 F.3d at 562 (reversing dismissal of § 1983 malicious

24

prosecution claim against arresting officers and city).

25

As the parties moving for summary judgment, Defendants have the initial burden to show

26

that Rubalcava cannot prove these elements. The requirement that the prior proceedings

27

terminated in a manner indicating Rubalcava’s innocence is undisputed in light of the Santa Clara

28

County Superior Court’s determination that he is actually innocent and the District Attorney’s
31

1

dismissal of the charges. See Order, Matthias Decl. Ex. 3; Tr., Matthias Decl. Ex. 2. However,

2

Defendants argue that Rubalcava cannot prove the remaining elements, asserting that there is no

3

evidence that the officers acted with malice; there was probable cause to prosecute Rubalcava; and

4

there is no evidence that the officers acted with intent to deprive Rubalcava of equal protection or

5

another constitutional right.

6

United States District Court
Northern District of California

7

a.

Malice

Under California law, “malice is not limited to hostility or ill will, but encompasses

8

improper motive, which can be inferred from continued prosecution despite a lack of substantial

9

grounds for believing in plaintiff’s guilt.” Trulove, 2018 WL 1070899, at *8 (citing Greene v.

10

Bank of Am., 216 Cal. App. 4th 454, 464-65 (2013)). The Court observes that Defendants do not

11

rely on California law for the relevant definition of malice, but instead cite The American Law

12

Institute’s Restatement 2d of Torts, § 668, for the proposition that malice requires “motives of

13

anger, personal ill will or spite”. See Mot. at 28. The cited section of the Restatement does not in

14

fact limit malice to the definition proffered by Defendants and in any event, as discussed above,

15

the applicable definition is that found in California law.

16

Defendants assert that there is no evidence that the officers bore Rubalcava any ill will, or

17

that they pursued charges against Rubalcava for any reason other than their belief he was the

18

shooter. This assertion is insufficient to meet Defendants’ initial burden on summary judgment

19

with respect to Perez, Fonua, and Spillman, because Defendants simply ignore record evidence

20

that those officers falsified witness identifications in their police reports. A reasonable jury,

21

viewing the evidence in the light most favorable to Rubalcava, could draw an inference that Perez,

22

Fonua, and Spillman falsified their police reports for an improper purpose – to arrest Rubalcava

23

without any substantial evidence of his guilt – and thus could find that the malice element is

24

satisfied. Accordingly, the Court concludes that Defendants have failed to establish that Perez,

25

Fonua, and Spillman are entitled to summary judgment, especially since “[m]alice is usually a

26

question of fact for the jury to determine.” Est. of Tucker ex rel. Tucker v. Interscope Recs., Inc.,

27

515 F.3d 1019, 1030 (9th Cir. 2008). This conclusion is consistent with other cases in this district

28

addressing similar facts. In Trulove, the district court found that disputed issues of material fact as
32

1

to malice precluded summary judgment on a § 1983 malicious prosecution claim where there was

2

evidence that the defendant officers knowingly pressured a witness to identify the plaintiff as the

3

shooter in a murder case, and knowingly knew or recklessly disregarded the falsity of another

4

witness’s identification of the plaintiff as the shooter. See Trulove, 2018 WL 1070899, at *8.

United States District Court
Northern District of California

5

However, Defendants’ assertion that there is no evidence of malice is meritorious with

6

respect to Nieves. As discussed above, there is no evidence in this record suggesting that Nieves

7

fabricated his Gang Relatedness police report or withheld material evidence. Defendants may

8

meet their initial burden on summary judgment with respect to Nieves by pointing to the absence

9

of record evidence on malice with respect to him. See In re Oracle Corp. Sec. Litig., 627 F.3d at

10

387. The burden thus shifts to Rubalcava to come forward with evidence from which a reasonable

11

trier of fact could conclude that Nieves acted with malice in helping to instigate the prosecution.

12

Rubalcava’s opposition brief addresses only the police reports regarding witness identifications

13

prepared by other officers, not Nieves’ Gang Relatedness police report. Consequently, the motion

14

for summary judgment on the malicious prosecution claim is GRANTED as to Nieves.

15
16

b.

Probable Cause

Defendants next argue that Rubalcava cannot establish the second element the malicious

17

prosecution claim, that charges were brought against him with no probable cause. “[P]robable

18

cause is an absolute defense to malicious prosecution.” Lassiter, 556 F.3d at 1054-55.

19

Defendants argue that the superior court’s finding of probable cause after the preliminary hearing

20

is sufficient to defeat the malicious prosecution claim here. “In California, as in virtually every

21

other jurisdiction, it is a long-standing principle of common law that a decision by a judge or

22

magistrate to hold a defendant to answer after a preliminary hearing constitutes prima facie – but

23

not conclusive – evidence of probable cause.” Awabdy, 368 F.3d at 1067 (9th Cir. 2004). The

24

Court finds that Defendants’ citation to the superior court’s probable cause finding is sufficient to

25

meet their initial burden on the probable cause element.

26

The burden thus shifts to Rubalcava to come forward with evidence establishing a factual

27

dispute as to probable cause. “Among the ways that a plaintiff can rebut a prima facie finding of

28

probable cause is by showing that the criminal prosecution was induced by fraud, corruption,
33

1

perjury, fabricated evidence, or other wrongful conduct undertaken in bad faith.” Awabdy, 368

2

F.3d at 1067. Rubalcava submits excerpts of the prosecutor’s deposition testimony that he relied

3

on the allegedly falsified police reports when determining that there was probable cause to pursue

4

the charge of attempted murder against Rubalcava. See Duffy Dep. 75:21-76:25, Matthias Decl.

5

Ex. 55. Mr. Duffy also stated that he relied on the police reports in good faith, assuming that the

6

reports were accurate and written in good faith. See id. That evidence is sufficient to create a

7

triable issue of fact as to whether Mr. Duffy had probable cause to prosecute.

United States District Court
Northern District of California

8

Defendants argue that the testimony presented at the preliminary hearing, which

9

Defendants characterize as “independent” of the allegedly fabricated police reports, was sufficient

10

to establish probable cause. The victim, Rodriguez, made an in-court identification of Rubalcava

11

as the shooter, as did Rodriguez’s brother Millan, and Gonzalez testified that Rubalcava looked

12

like the shooter. See Prelim. Hrg. Tr. 21:20-22:3, 72:18-27, 133:23-135:2. “Identifications

13

supplied by victims are generally sufficient to provide probable cause on their own[.]” Collins v.

14

County of Alameda, 2024 WL 1192265, at *1 (9th Cir. Mar. 20, 2024). However, that rule does

15

not apply where “the identification procedure was impermissibly suggestive and the witness did

16

not exhibit sufficient indicia of reliability.” Id. “[P]laintiffs who can establish that an officer lied

17

or fabricated evidence [may] relitigate the issue of probable cause with the falsified evidence

18

removed from the equation or, in cases involving intentional concealment of exculpatory evidence,

19

with the undisclosed evidence added back into the equation.” Trulove, 2018 WL 1070899, at *8.

20

Under Rubalcava’s version of events, Rodriguez and Millan initially told the police they could not

21

identify Rubalcava, and Gonzalez told Perez at the preliminary hearing that Rubalcava was not the

22

shooter. Adding that evidence “back into the equation,” thus calling in to question the witnesses’

23

in-court testimony, the Court finds that there is a material dispute of fact as to whether probable

24

cause existed to prosecute Rubalcava.

25

This case is distinguishable from Collins, cited by Defendants, in which the Ninth Circuit

26

concluded that even without the challenged witness identification, probable cause would have

27

been established by other evidence, including evidence the plaintiff matched the physical

28

description of the suspect and had rented a vehicle that matched the description of the vehicle used
34

1

in the shooting. See Collins, 2024 WL 1192265, at *1. Without the witness identifications in the

2

present case, there was no other evidence tying Rubalcava to the crime.
c.

United States District Court
Northern District of California

3

Intent to Deprive of Constitutional Right

4

Defendants argue that there is no evidence that Perez, Fonua, and Spillman caused the

5

prosecution with the intent to deprive Rubalcava or equal protection or another constitutional

6

right. As discussed above, Rubalcava has submitted evidence that Perez, Fonua, and Spillman

7

fabricated witness identifications in their police reports, and failed to disclose that the witness

8

identifications they recorded as unequivocal actually were unreliable (if made at all). Viewing the

9

evidence in the light most favorable to Rubalcava, a jury reasonably could infer that Perez, Fonua,

10

and Spillman falsified the police reports for the purpose of depriving Rubalcava of constitutional

11

rights guaranteed under the Fourteenth Amendment, including the due process right not to be

12

subjected to criminal charges on the basis of false evidence and the right to exculpatory evidence.
2.

13
14

Qualified Immunity

Defendants argue that even if Rubalcava could establish that the officers’ conduct

15

constituted malicious prosecution under § 1983, the officers are entitled to qualified immunity.

16

“Malicious prosecution, by itself, does not constitute a due process violation; to prevail [the

17

plaintiff] must show that the defendants prosecuted [him] with malice and without probable cause,

18

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

19

constitutional right.” Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995).

20

Rubalcava has the burden to identify the constitutional right he claims the officers sought to

21

deprive him of, and to show that the right was clearly established at the time of the alleged

22

misconduct.

23

As discussed above, Rubalcava claims that Perez, Fonua, and Spillman caused him to be

24

maliciously prosecuted for the purpose of depriving him of rights guaranteed under the Fourteenth

25

Amendment, including the due process right not to be subjected to criminal charges on the basis of

26

false evidence and the right to exculpatory evidence. Rubalcava directs the Court’s attention to

27

Devereaux, establishing in 2001 that “there is a clearly established constitutional due process right

28

not to be subjected to criminal charges on the basis of false evidence that was deliberately
35

1

fabricated by the government,” see Devereaux, 263 F.3d at 1074-75; and to Carrillo, establishing

2

that it was clearly established by 1984 that criminal defendants are constitutionally entitled to

3

disclosure of evidence undermining the credibility of government witnesses, see Carrillo, 798

4

F.3d at 1226. There is no dispute that it was clearly established by 1987 that a criminal defendant

5

may bring a malicious prosecution claim against police officers who wrongfully caused his

6

prosecution for the purpose of depriving him of a constitutional right. See Usher, 828 F.3d at 562.

7

Based on these authorities, the Court finds that Perez, Fonua, and Spillman are not entitled

8

to qualified immunity with respect to the § 1983 claim for malicious prosecution.
3.

9

In conclusion, Defendants’ motion for summary judgment on Claim 3 is GRANTED as to

10

United States District Court
Northern District of California

11

Conclusion

Nieves and DENIED as to Perez, Fonua, and Spillman.
Claim 4 – § 1983 Claim for Conspiracy

12

D.

13

Claim 4, for Conspiracy, is asserted against Perez, Fonua, Spillman, and Nieves.

14

The elements of a § 1983 claim for conspiracy are: “(1) the existence of an express or

15

implied agreement among the defendant officers to deprive [the plaintiff] of his constitutional

16

rights, and (2) an actual deprivation of those rights resulting from that agreement.” Avalos v.

17

Baca, 596 F.3d 583, 592 (9th Cir. 2010). “Whether defendants were involved in an unlawful

18

conspiracy is generally a factual issue and should be resolved by the jury, so long as there is a

19

possibility that the jury can infer from the circumstances (that the alleged conspirators) had a

20

meeting of the minds and thus reached a understanding to achieve the conspiracy’s objectives.”

21

Mendocino Env’t Ctr. v. Mendocino Cty., 192 F.3d 1283, 1301-02 (9th Cir. 1999) (internal

22

quotation marks and citation omitted). “To be liable, each participant in the conspiracy need not

23

know the exact details of the plan, but each participant must at least share the common objective

24

of the conspiracy.” Id. at 1302 (internal quotation marks and citation omitted).

25

Defendants argue that Rubalcava cannot establish the existence of a conspiracy. In

26

opposition, Rubalcava argues that there is sufficient evidence to proceed to trial on the conspiracy

27

claim.

28

Given the evidence that Perez, Fonua, and Spillman worked closely and in tandem to
36

1

fabricate witness identifications, the Court finds that a jury reasonably could infer that those

2

officers conspired to deprive him of the constitutional due process right not to be subjected to

3

criminal charges on the basis of false evidence that was deliberately fabricated by the government,

4

and the constitutional right to exculpatory evidence. Accordingly, the motion for summary

5

judgment on Claim 4 is DENIED as to Perez, Fonua, and Spillman.

6

However, there is no evidence from which a reasonable jury could infer that Nieves was

7

part of the alleged conspiracy. He came into the case later, his alleged constitutional violations

8

related to a report regarding gang activity that was separate from and different in nature from the

9

reports of the other officers. Accordingly, the motion for summary judgment on Claim 4 is

United States District Court
Northern District of California

10

GRANTED as to Nieves.
Claim 5 – Bane Act Claim

11

E.

12

Claim 5, under the Bane Act, is asserted against Perez, Fonua, Spillman, and Nieves.

13

Under the Bane Act, a plaintiff can seek damages “if a person or persons, whether or not

14

acting under color of law, interferes by threat, intimidation, or coercion, or attempts to interfere by

15

threat, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals

16

of rights secured by the Constitution or laws of the United States, or of the rights secured by the

17

Constitution or laws of this state.” Cal. Civ. Code § 52.1(b)-(c). “The essence of a Bane Act

18

claim is that the defendant, by the specified improper means (i.e., threats, intimidation or

19

coercion), tried to or did prevent the plaintiff from doing something he or she had the right to do

20

under the law or to force the plaintiff to do something that he or she was not required to do under

21

the law.” Simmons v. Superior Court, 7 Cal. App. 5th 1113, 1125 (2016) (internal quotation

22

marks and citation omitted).
Bane Act claims are “limited to plaintiffs who themselves have been the subject of

23
24

violence or threats.” Bay Area Rapid Transit Dist. v. Superior Ct., 38 Cal. App. 4th 141, 144

25

(1995). Defendants point to an absence of evidence that any Defendant used violence or threats

26

against Rubalcava. Because Rubalcava has the burden of proof at trial, Defendants may meet their

27

initial burden by pointing to an absence of evidence. See In re Oracle Corp. Sec. Litig., 627 F.3d

28

at 387.
37

The burden shifts to Rubalcava to come forward with evidence that he was subjected to

United States District Court
Northern District of California

1
2

violence or threats. He argues that his burden is satisfied with evidence that Defendants

3

deliberately fabricated evidence to cause a baseless seizure of his person, citing Reese v. Cnty. of

4

Sacramento, 888 F.3d 1030, 1043-45 (9th Cir. 2018). In Reese, the plaintiff brought a Fourth

5

Amendment excessive force claim and a Bane Act claims arising from an incident in which he was

6

shot by a law enforcement officer. See id. at 1035-36. The issue before the Court was whether the

7

Bane Act claim required a showing of threats, intimidation or coercion in addition to the elements

8

required to prove the Fourth Amendment excessive force claim. The Ninth Circuit held that on

9

the facts of Reese, the Bane Act did not require coercion independent from the Fourth Amendment

10

violation, and that a reasonable jury could find that the law enforcement officer had a specific

11

intent to violate the plaintiff’s Fourth Amendment rights. Reese, in which the plaintiff was shot,

12

does not hold or suggest that a plaintiff may proceed under the Bane Act where he himself has not

13

been the subject of violence or threats. Accordingly, Rubalcava’s reliance on Reese is misplaced.

14

The Court finds that Rubalcava has not presented evidence from which a reasonable trier of fact

15

could find in his favor on the Bane Act claim.

16

The motion for summary judgment on Claim 5 is GRANTED.

17

F.

18

Claim 6, brought under California Government Code § 815.2, and Claim 7, brought under

Claims 6 and 7 – Liability of the City

19

California Government Code § 825, seek to hold the City liable for its officers’ alleged violation

20

of the Bane Act. Because Defendants are entitled to summary judgment on the Bane Act claim, so

21

too are they entitled to summary judgment on the claims against the City.
The motion for summary judgment on Claims 6 and 7 is GRANTED.

22
23

//

24

//

25

//

26

//

27

//

28

//
38

1
2

IV.

ORDER
(1)

Defendants’ motion for summary judgment is GRANTED IN PART

3

AND DENIED IN PART, as follows:

4

(a)

and the City of San Jose;

5
(b)

6

on Claim 1 (§ 1983 Claim for Fabrication of Evidence in violation of the

7

Fourteenth Amendment), the motion is GRANTED as to Defendant Nieves

8

and DENIED as to Defendants Perez, Fonua, and Spillman;
(c)

9

United States District Court
Northern District of California

the motion is GRANTED on all claims against Defendants Avalos, Nieves,

on Claim 2 (§ 1983 Claim for Withholding Evidence in violation of the

10

Fourteenth Amendment), the motion is GRANTED as to Defendant Nieves

11

and DENIED as to Defendants Perez, Fonua, and Spillman;
(d)

12

on Claim 3 (§ 1983 Claim for Malicious Prosecution in violation of the

13

Fourth and Fourteenth Amendments), the motion is GRANTED as to

14

Defendant Nieves and DENIED as to Defendants Perez, Fonua, and

15

Spillman;
(e)

16

on Claim 4 (§ 1983 Claim for Conspiracy), the motion is GRANTED as to

17

Defendant Nieves and DENIED as to as to Defendants Perez, Fonua, and

18

Spillman;
(f)

19

is GRANTED in its entirety;

20
(g)

21

Claim 6 (Claim for Respondeat Superior and Vicarious Liability under Cal.
Gov. Code § 815.2), the motion is GRANTED in its entirety; and

22
(h)

23

on Claim 7 (Claim for Employer Liability under Cal. Gov. Code § 825), the
motion is GRANTED in its entirety.

24
25

on Claim 5 (Claim under the Bane Act, Cal. Civ. Code § 52.1), the motion

(2)

This order terminates ECF 199.

26
27
28

Dated: March 27, 2024

______________________________________
BETH LABSON FREEMAN
United States District Judge
39