Estate of Frank Carson and Georgia DeFilippo v. County of Stanislaus

• Court: District Court, E.D. California
• Decided: September 11, 2023
• Docket: 1:20-cv-00747
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ESTATE OF FRANK CARSON AND No. 1:20-cv-00747-DJC-BAM GEORGIA DEFILIPPO, et al., 12 Plaintiffs, 13 ORDER v. 14 COUNTY OF STANISLAUS, et al., 15 Defendants. 16 17 This action concerns Frank Carson’s arrest and prosecution by Defendants in 18 connection with the alleged murder of Korey Kauffman. Plaintiffs raise a number of 19 claims pursuant to 42 U.S.C. § 1983 and California state law based on their arrest and 20 the investigation that preceded it. Presently before the Court is Defendants’ motion to 21 dismiss some of the claims raised in the Second Amended Complaint. (Defs.’ Mot. 22 (ECF No. 71).) For the reasons stated below, Defendants’ Motion to Dismiss is 23 GRANTED IN PART and DENIED IN PART. 24 I. Background 25 Plaintiffs are the Estate of criminal defense attorney Frank Carson and Carson’s 26 Wife, Georgia DeFilippo, in her status as an individual and as a successor in interest to 27 Carson. Carson was arrested in 2015 on suspicion that he was involved in a murder 28 for hire scheme that resulted in the murder of Korey Kauffman. Carson was held for 1 seventeen months and was eventually acquitted by a jury. Plaintiffs claim that the 2 arrest of Carson was the result of a conspiracy to retaliate against Carson for his 3 actions as a defense attorney. Plaintiffs have filed the present suit against both 4 county and city Defendants based on the alleged violations of Plaintiffs’ federal civil 5 rights as well as violations of California state law. 6 The Court previously partially granted Defendants’ Motion to Dismiss and 7 dismissed Plaintiffs’ complaint with leave to amend. After Plaintiffs submitted a 8 Second Amended Complaint (“SAC”), Defendants filed the present Motion to 9 Dismiss.1 10 II. Legal Standard on Motion to Dismiss 11 A party may move to dismiss for “failure to state a claim upon which relief can 12 be granted.” Fed. R. Civ. P. 12(b)(6). The motion may be granted if the complaint 13 lacks a cognizable legal theory or if there are insufficient facts alleged under a 14 cognizable legal theory. ., 937 F.3d 1201, 1208 (9th 15 Cir. 2019). The Court assumes all factual allegations are true and construes them in 16 the light most favorable to the nonmoving party. 17 , 919 F.3d 1154, 1160 (9th Cir. 2019). A complaint must plead “sufficient 18 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 19 , 556 U.S. 662, 679 (2009) (quoting , 20 550 U.S. 544, 570 (2007). However, the Court must “draw all reasonable inferences in 21 favor of the nonmoving party.” 22 , 768 F.3d 938, 945 (9th Cir. 2014). 23 //// 24 //// 25

26 1 The present order is one of three issued simultaneously by the Court in related cases with similar pending motions to dismiss. , No. 1:18-cv-00496-DJC-BAM; 27 , No. 1:18-cv-01403-DJC-BAM. Broadly speaking, these cases relate to the same series of events. Accordingly, the analysis in each of the Court’s three orders is largely 28 identical, except where otherwise noted. 1 III. Allegations in the Complaint 2 In the Second Amended Complaint, Plaintiffs include dozens of pages of 3 detailed factual allegations which can be summarized as follows: 4 Attorney Frank Carson was arrested on August 14, 2015, and charged with the 5 murder of Korey Kauffman. (SAC at 3.) Carson was “reviled by many in law 6 enforcement” as well as the Stanislaus County District Attorney’s office (“SCDA”). ( 7 at 9.) The murder for hire theory was based in part on the idea that Kauffman was 8 suspected of a prior theft from Carson’s property and that Carson had hired 9 individuals to murder Kauffman. ( at 2, 8–9.) On April 4, 2012, shortly after 10 Kauffman’s disappearance, Defendant Kirk Bunch filed a report about a conversation 11 with Michael Cooley, Carson’s neighbor and purportedly the last person to see 12 Kauffman alive. ( at 9.) In Defendant Bunch’s report, Cooley “sought to implicate 13 Carson in Kauffman’s disappearance and subsequent murder . . . .” ( ) After 14 prosecutors learned of the potential link between Carson and Kauffman’s 15 disappearance, the SCDA “[s]uddenly . . . became very interested in this missing 16 person case.” ( at 10.) 17 Defendants Harris and Birgit Fladager created a task force to investigate 18 Kauffman’s disappearance. ( ) Defendant Fladager supervised the investigation 19 team which included Defendants Bunch, Jacobson, Cory Brown, and Jon Evers. ( at 20 11.) Defendant Harris was also originally responsible for supervising these 21 Defendants but was later replaced by Defendant Marlissa Ferreira after Defendant 22 Harris “was accused of jury tampering and contempt of court in a case he had with 23 Carson as [opposing] counsel.” ( ) 24 During the course of the investigation, multiple other viable suspects were 25 disregarded and exculpatory evidence was not disclosed to the judge who signed 26 Plaintiffs’ arrest warrants. ( at 11–15.) As part of the investigation, Defendants 27 Bunch, Jacobson, and Evers conducted a seven-hour interrogation of Robert Woody 28 after he was recorded saying he had killed Kauffman. ( at 16–17.) Defendants 1 Bunch, Jacobson, and Evers informed Woody of the theory involving Carson and 2 Plaintiffs and pressured Woody despite him repeatedly denying “any involvement in, 3 or knowledge of, the Kauffman murder . . . .” ( at 17.) Woody was threatened with 4 the death penalty and life in prison, and told he had an opportunity to implicate 5 others in the murder. ( ) During the interrogation, Woody took a 20-minute 6 bathroom break, accompanied by Defendants Bunch and Jacobson. ( at 17–18.) 7 This period was not recorded and when Woody returned, he repeated back part of 8 the theory that Bunch, Jacobson, and Evers had told him previously: “that [Woody’s] 9 employers, Baljit Athwal and Daljit Athwal had murdered Kauffman and that they did it 10 because they were asked by Carson to watch over his property for thieves.” ( at 18.) 11 Defendants Bunch, Jacobson, and Evers conducted several additional interviews with 12 Woody over the next two years during which they reinforced what Woody had told 13 them. ( at 19–24.) Woody eventually recanted his confession on April 24, 2014, and 14 passed a polygraph stating that he had nothing to do with Kauffman’s murder. ( at 15 23–24.) 16 On August 13, 2015, Defendant Brown submitted a Ramey Warrant for 17 Plaintiffs’ arrest. ( at 23.) The preparation of this warrant request was “a ‘group 18 consensus’ between [Defendant Brown] and Defendants Fladager, Ferreira, Bunch, 19 Evers, and Jacobson on what charges to seek and what facts to include (and exclude) 20 in the warrant.” ( ) The ultimate warrant was a 325-page “unorganized, rambling 21 document” that failed to establish probable cause. ( at 24.) The arrest warrant also 22 contained a number of “fabrications, material omissions[,] and misleading 23 statements.” ( at 25–28.) 24 After his arrest, Carson served seventeen months in jail where his health 25 deteriorated due to jail conditions which later resulted in the closure of the jail. ( at 26 45.) At trial, Carson was acquitted of all charges by a jury after less than two days of 27 deliberation. ( at 44.) Despite the acquittal, some of the Defendants continued to 28 accuse Carson of involvement in the murder. ( ) 1 IV. Defendants’ Motion to Dismiss 2 A. Claims That Plaintiffs Concede Should be Dismissed 3 As an initial matter, in response to Defendants’ motion, Plaintiffs concede two 4 categories of claims should be dismissed. 5 First, Defendants argue that Plaintiffs improperly brought suit against 6 Defendants Fladager and Harris in their official capacity as the Court previously 7 dismissed these claims as redundant to Plaintiffs’ claims against Stanislaus County. 8 (Defs.’ Mot. at 3.) In their opposition, Plaintiffs concede that these official capacity 9 claims are redundant and voluntarily dismiss them. (Pls.’ Opp’n (ECF No. 79) at 4.) 10 Accordingly, claims against Fladager and Harris in their official capacities are 11 dismissed. 12 Second, Defendants argue in their motion that Defendants Fladager and Harris 13 are not proper parties to a municipal liability claim. (Defs.’ Mot. at 15.) In their 14 opposition, Plaintiffs also concede this point and voluntarily dismiss the claims against 15 Fladager and Harris based on municipal liability. (Pls.’ Opp’n at 4.) Accordingly, these 16 claims are also dismissed. 17 B. Timeliness of Plaintiffs’ Judicial Deception and False Imprisonment and 18 False Arrest Claims against Defendants Fladager, Harris, and Ferreira 19 In their motion, Defendants argue that two sets of claims are not timely under 20 the requisite statute of limitations: Plaintiffs’ Fourth Amendment judicial deception 21 claims against Defendants Fladager, Harris, and Ferreira; and Plaintiffs’ false arrest and 22 false imprisonment claims against these same Defendants. Plaintiffs initially contend 23 that their claims are timely under the rule for accrual. To the extent that these 24 claims are not timely and/or the rule does not apply, Plaintiffs argue that 25 statutory and equitable tolling apply instead. The Court will first determine the date 26 each set of claims was accrued and then determine whether are subject to tolling. 27 //// 28 //// 1 1. Accrual of Claims 2 a. Fourth Amendment Judicial Deception Claims 3 Turning first to Plaintiffs’ Fourth Amendment judicial deception claims, as these 4 claims are brought pursuant to section 1983, the Court must apply the statute of 5 limitations for personal injury of the state in which the claim arose. 6 , 631 F.3d 1031, 1041 (9th Cir. 2011) In California, there is a 7 two-year statute of limitations for personal injury actions. Cal. Civ. Proc. Code 8 § 335.1. Plaintiffs do not dispute that this is the proper statute of limitations but 9 instead contend that these claims are timely under the rule, as well as being 10 subject to statutory and equitable tolling. (Pls.’ Opp’n at 4–8.) 11 Pursuant to the rule expressed by the Supreme Court in , 512 12 U.S. 477 (1994), individuals are not permitted to recover damages via section 1983 13 “for [an] allegedly unconstitutional conviction or imprisonment, or for other harm 14 caused by actions whose unlawfulness would render a conviction or sentence invalid” 15 unless the plaintiff proved that “that the conviction or sentence has been reversed on 16 direct appeal, expunged by executive order, declared invalid by a state tribunal 17 authorized to make such determination, or called into question by a federal court's 18 issuance of a writ of habeas corpus . . . .” at 486–87. Where there are ongoing 19 state court proceedings, the resolution of which are required to satisfy the rule, 20 the Supreme Court has held that the cause of action “accrues only once the 21 underlying criminal proceedings have resolved in the plaintiff's favor.” 22 , 139 S. Ct. 2149, 2156 (2019). However, accrual occurs “when the plaintiff has a 23 complete and present cause of action, that is, when the plaintiff can file suit and obtain 24 relief.” , 549 U.S. 384, 388 (2007) (citations omitted). To determine 25 whether a plaintiff has a complete and present cause of action, the Court must look to 26 the analogous common law tort to determine when the cause of action accrued. 27 While most Fourth Amendment violations accrue when “the wrongful act 28 occurs,” , 796 F.3d 1021, 1026 (9th Cir. 2015), the Ninth Circuit has 1 clarified that “judicial deception” claims accrue differently owing to the need for the 2 party to be able to view the affidavit supporting a warrant before pursuing an action 3 on these grounds. , 865 F.3d 1276, 1279 (9th Cir. 2017). 4 As such, the Court is required to apply the discovery rule which “requires that judicial 5 deception claims begin accruing when the underlying affidavit is reasonably 6 available.” 7 Here, accrual of Plaintiffs’ deception claims would be at the point that the 8 affidavit underlying the warrant for Plaintiffs’ arrest was available. Both parties agree 9 that this occurred in 2015.2 (Defs.’ Mot. at 4; Pls.’ Opp’n at 4 n.2.) As Plaintiffs’ judicial 10 deception claims would have accrued at this point, Plaintiffs’ claims are not saved by 11 the rule as Plaintiffs did not file the present action until May 28, 2020. Thus, 12 unless Plaintiffs’ judicial deception claims against Defendants Fladager, Harris, and 13 Ferreira are tolled, they are not timely. 14 b. False Arrest/Imprisonment Claim 15 Turning next to Plaintiffs’ sixth cause of action for false arrest and false 16 imprisonment, this claim was brought under California Government Code sections 17 820, 820.4, and 815.2, not section 1983. As such, it is subject to the rules for accrual 18 for the cause of action under state law. , No. 05-cv- 19 01778-DSF, 2006 WL 8434718, at *8–9 (C.D. Cal. Jan. 5, 2006). 20 Under California law, false arrest and imprisonment claims are subject to a one- 21 year statute of limitations.3 Cal. Civ. Proc. Code § 340; , No. 09-cv- 22 1250-JLS-POR, 2011 WL 530039, at *13–14 (S.D. Cal. Feb. 7, 2011) (“Plaintiff's false 23 arrest claim is barred by the one-year statute of limitations applicable to false 24 2 Plaintiffs attempt to introduce some ambiguity as to when the arrest warrant was available, suggesting 25 in their Opposition that “it have become reasonably available to Plaintiffs sometime after October 2015.” (Opp. at 4, n. 2 (emphasis in original).) That ambiguity, however, is inconsistent with the 26 allegation in the operative complaint that the entire warrant was released online following the press conference announcing the charges. (SAC at ¶ 57.) 27 3 As these are claims against government employees, they are also subject to the limitations of the California Tort Claims Act in addition to the statute of limitations. Compliance with the California Tort 28 Claims Act as to these claims is addressed separately below. 1 imprisonment claims.”); , 96 Cal. App. 3d 834, 2 840 (1979) (stating false arrest and imprisonment are subject to a one-year statute of 3 limitations pursuant to section 340). Though a false arrest and imprisonment claim 4 may arise at the time of arrest, in California “the statute of limitations [does] not 5 commence to run until [plaintiff’s] discharge from jail.“ , 96 Cal. App. 3d at 6 840. 7 Under these rules, Plaintiffs’ false arrest and imprisonment claims would have 8 begun to run on the date Carson was released from custody. While it is unclear from 9 the pleadings the exact date Carson was released from custody, Plaintiffs have 10 alleged that it was during preliminary proceedings. (SAC at ¶ 9.) Plaintiffs also state 11 that Carson’s jury trial “lasted more than a year” and ended on June 18, 2019. ( at 12 ¶ 10.) Taking Plaintiffs’ allegations as true this means that Carson’s trial was already 13 underway a year prior on June 18, 2018, and Carson had been released by that time.4 14 As such, this action was filed beyond the one-year statute of limitations for these sorts 15 of claims. The accrual rules are also inapplicable to these claims as is 16 specific to actions brought under section 1983. , 512 U.S. at 486–87; 17 , No. 05-cv-1778-DSF, 2006 WL 8434718, at *8 (C.D. 18 Cal. Jan. 5, 2006) (distinguishing California state law false arrest claims from section 19 1983 claims). 20 Accordingly, Plaintiffs’ false arrest/imprisonment claims against Defendants 21 Fladager, Harris, and Ferreira are untimely unless statutory or equitable tolling is 22 applicable. 23 2. Statutory Tolling 24 Plaintiffs argue that their judicial deception claims as well as their false arrest 25 and imprisonment claims should also be subject to statutory tolling under California 26 4 Statements in Plaintiffs’ opposition appear to indicate that Carson was released even earlier on 27 December 22, 2016. ( Pls.’ Opp’n at 10.) However, this is not clearly stated nor is it included as a factual allegation in Plaintiffs’ complaint. Regardless, the Court does not need to reach this issue as 28 these claims are untimely under either date. 1 Government Code section 945.3. (Pls.’ Opp’n at 5–6.) Defendants contend that this 2 statute is not applicable to Defendants Fladager, Harris, and Ferreira as they are not 3 “peace officers” within the meaning of this statute. (Defs.’ Reply (ECF No. 81) at 3.) 4 “For actions under 42 U.S.C. § 1983, courts apply the forum state's statute of 5 limitations for personal injury actions, along with the forum state's law regarding 6 tolling, including equitable tolling, except to the extent any of these laws is 7 inconsistent with federal law.” , 393 F.3d 918, 927 (9th Cir. 2004). 8 Section 945.3 provides that a defendant in a criminal action may not bring a civil suit 9 “against a peace officer or the public entity employing a peace officer based upon 10 conduct of the peace officer relating to the offense for which the accused is charged 11 . . . . while the charges against the accused are pending before a superior court.” Cal. 12 Gov’t Code § 945.3. Section 945.3 further tolls these civil claims “during the period 13 that the charges are pending.” Whether this statute properly applies to 14 Defendants Fladager, Harris, and Ferreira depends on whether these defendants, who 15 are all employed as attorneys by the SCDA (SAC at ¶ 23), are properly considered 16 “peace officers” under section 945.3. Defendants suggest that this Court apply the 17 definition of “peace officer” found within California Penal Code section 830.1(a). 18 (Defs.’ Reply at 3.) Plaintiffs argue that the definition provided by Penal Code section 19 830.1(a) is not meant to apply to Government Code section 945.3 as the latter statute 20 makes no reference to Penal Code section 830.1(a). (Pls.’ Opp’n at 6–7.) Plaintiff also 21 opposes on the grounds that, within the “plain meaning” of section 945.3, Defendants 22 Fladager, Harris, and Ferreira are peace officers, regardless of the “literal language” of 23 the statute. ( at 5–6.) 24 Other courts in this district have previously declined to apply section 954.3 to 25 one of these three Defendants, Defendant Fladager, based on the same conduct on 26 the grounds that “[p]rosecutors are not considered ‘peace officers’ under state law.” 27 , No. 1:15-cv-00311-TLN-BAM, 2022 WL 4237713, at *4 28 (E.D. Cal. Sep. 14, 2022); , 1:20-cv-00770-TLN- 1 BAM, 2022 WL 4237538, at *4. The Court reaches a similar conclusion here. Courts 2 have consistently looked to section 830.1(a) when determining whether an individual 3 is a peace officer for the purposes of applying section 945.3. 4 , 1:16-cv-01834-DAD-SKO, 2017 WL 3394126, at *5 (E.D. Cal. Aug. 8, 2017); 5 , No. 12-cv-656-ODW-MRW, 2012 WL 2071781, at *2 6 (C.D. Cal. June 6, 2012) 2012 WL 2071765 7 (C.D. Cal. June 7, 2012); , 2:10-cv-00557-GEB-DAD, 2011 WL 5102994, 8 at *2 (E.D. Cal. Oct. 26, 2011). Section 830.1(a) does not designate an attorney 9 employed in the office of a district attorney as a peace officer. Cal. Pen. Code 10 § 830.1(a); , 2022 WL 4237713, at *4; , 2022 WL 4237538, at *4. 11 Additionally, though section 830.1(a) does provide that investigators for a district 12 attorney’s office are peace officers, this only applies to “an inspector or investigator 13 ” by the office. Neither party contends that Defendants 14 Fladager, Harris, and Ferreira were employed as investigators and, though Plaintiffs 15 have claimed that these defendants were as investigators, section 830.1(a) 16 plainly only identifies as a peace officer those officially as an investigator by 17 a district attorney’s office. 18 Plaintiffs suggest that this Court should consider Defendants Fladager, Harris, 19 and Ferreira to be peace officers as failing to do so would defeat the plain purpose of 20 section 945.3. (Pls’ Opp’n at 6–7.) In support of this contention, Plaintiffs rely on 21 , 386 F. Supp. 3d 1132 (Cal. N.D. 2019). The court in 22 determined that they needed to go beyond the plain meaning of section 945.3 23 in order to properly apply the statute in line with its purpose. at 1143–44. The 24 concern in was with the term “superior court” and whether it should be read as a 25 reference to any trial court, regardless of the name of the court. at 1144–45. In 26 reaching its decision, the Court relied heavily on the legislative history of 27 section 945.3, which clearly showed that the California legislature intended the statute 28 to apply to criminal actions in any trial court. at 1144–45. 1 By contrast, Plaintiffs here have not provided any evidence that the current 2 definition of a peace officer does not align with the California legislature’s intent. 3 Moreover, unlike the term “superior court”, there does appear to be any sort of 4 ambiguity regarding how “peace officer” is to be defined under California law. 5 Section 830.1 provides a detailed list of individuals to be considered peace officers 6 and, as noted by Plaintiffs, the California legislature has not hesitated to update this 7 list to cover the exact individuals they wish to be covered. ( Pls.’ Opp’n at 7 (listing 8 various changes to the individuals covered by section 830.1).) Other sub-sections of 9 the California Penal Code even expressly differentiate between peace officers as 10 defined by Section 830.1 and “[an] attorney employed by . . . a county office of a 11 district attorney . . . .” Cal. Pen. Code § 832.9. There is no indication that Defendants 12 Fladager, Harris, and Ferreira should properly be considered peace officers for 13 purposes of section 945.3. For this Court to make this decision would be to override 14 what appears the California Legislature’s clear decisions about who is, and is not, a 15 peace officer under California law. 16 Accordingly, statutory tolling under California Government Code section 954.3 17 does not apply to Plaintiffs’ claims against Defendants Fladager, Harris, and Ferreira as 18 those Defendants are not peace officers within the meaning of California law. 19 3. Equitable Tolling 20 Plaintiffs argue in the alternative that equitable tolling should apply to Plaintiffs’ 21 claims of false imprisonment/arrest and judicial deception against Defendants 22 Fladager, Harris, and Ferreira. (Pls.’ Opp’n at 7–9.) 23 As noted above, in section 1983 actions, the Court applies the forum state’s 24 statute of limitations for personal injury actions, including the state’s equitable tolling 25 law so long as it is consistent with federal law. , 393 F.3d at 927. Equitable 26 tolling is applied by California courts where it is necessary “to prevent the unjust 27 technical forfeiture of causes of action, where the defendant would suffer no 28 prejudice.” at 928 (citations omitted) (citing , 31 Cal. 4th 1 363 (2003)). “Under California law, a plaintiff must meet three conditions to equitably 2 toll a statute of limitations: (1) defendant must have had timely notice of the claim; (2) 3 defendant must not be prejudiced by being required to defend the otherwise barred 4 claim; and (3) plaintiff's conduct must have been reasonable and in good faith.” 5 , 192 F.3d 911, 916 (9th Cir. 1999) (citation omitted). 6 Despite Plaintiffs’ arguments to the contrary, this claim fails at the first 7 requirement. Relying on , 45 8 Cal. 4th 88 (2008), Plaintiffs argue that Defendants were given adequate notice of the 9 claim and are not prejudiced by defending the claim here since the Defendants were 10 “involved in the investigation and the events leading to the initiation of the criminal 11 proceeding.” (Pls.’ Opp’n at 7–8.) In , the California Supreme Court held 12 that a claim under the state’s Fair Employment and Housing Act was equitably tolled 13 while the plaintiff voluntarily pursued an internal administrative procedure. . at 96. 14 The Court observed that the “filing of an administrative claim, whether mandated or 15 not, affords a defendant notice of the claims against it so that it may gather and 16 preserve evidence, and thereby satisfies the principal policy behind the statute of 17 limitations.” . at 102. 18 The equitable tolling identified in does not apply here. 19 considered several circumstances where this type of equitable tolling might apply: 20 “where one action stands to lessen the harm that is the subject of a potential second 21 action; where administrative remedies must be exhausted before a second action can 22 proceed; or where a first action, embarked upon in good faith, is found to be 23 defective for some reason.” . at 100. None of these factors are present here. 24 Carson was the subject of the underlying criminal action; it did not involve Carson or 25 Plaintiffs themselves pursuing one of several legal remedies. (“Broadly 26 speaking, the doctrine applies when an injured person has several legal remedies 27 and, reasonably and in good faith, pursues one.”) (internal citations and quotations 28 omitted). Plaintiffs point to no case applying equitable tolling to a second suit where 1 the first suit involved a criminal complaint against defendants who were plaintiffs in a 2 later civil suit. 3 Even if the doctrine theoretically applied, the other requirements for equitable 4 tolling are not met in this case. Plaintiffs suggest that Defendants had timely notice of 5 the claims in this case as they were “all intimately involved in the investigation and the 6 events leading to the initiation of the criminal proceeding.” (Pls.’ Opp’n at 8.) 7 Defendants’ involvement in the criminal action against Carson holds no bearing on 8 whether they were put on notice of Plaintiffs’ claims. The claims present in the first 9 case were criminal charges against Carson; nothing about this prior action or the 10 claims involved would put Defendants on notice of the claims brought here. This is 11 not a situation “where a defendant in the second claim was alerted to the need to 12 gather and preserve evidence by the first claim even if not nominally a party to that 13 initial proceeding.” , 5 F.3d 1273, 1276 n.3 (9th Cir. 14 1993). As such, equitable tolling is not applicable to Carson’s criminal proceedings as 15 Defendants Fladager, Harris, and Ferreira were not given timely notice of Plaintiffs’ 16 claims in those proceedings. , 192 F.3d at 916. 17 Given the above, Defendants’ motion to dismiss as untimely Plaintiffs’ Fourth 18 Amendment Judicial Deception claims as well as Plaintiffs’ false imprisonment and 19 arrest claims as to Defendants Fladager, Harris, and Ferreira is granted. 20 C. Failure to Comply with the California Tort Claims Act 21 Defendants also argue that Plaintiffs’ false arrest and false imprisonment claims 22 are barred by a failure to comply with the California Tort Claims Act (“CTCA”). Parties 23 bringing a suit for monetary damages against a public entity under California law must 24 first comply with CTCA which requires “the timely presentation of a written claim and 25 the rejection of the claim in whole or in part.” 26 , 67 F.3d 1470, 1477 (9th Cir. 1995); , 628 27 F. Supp. 2d 1199, 1225 (E.D. Cal. 2009). Failure to comply with the CTCA bars a party 28 from bringing the relevant state law claims. , 628 F. Supp. 2d at 1225. The 1 complaint need not only plead compliance with the CTCA but also “allege facts 2 demonstrating or excusing compliance with the claim presentation requirement. 3 Otherwise, his complaint ... fail[s] to state facts sufficient to constitute a cause of 4 action.” (citations omitted). Personal injury claims are required to be presented 5 within six months of the accrual of the cause of action. Cal. Gov’t Code § 911.2. 6 Plaintiffs’ false arrest and imprisonment claims against Defendants Fladager, 7 Harris, and Ferreira accrued at the time Carson was released from jail. , 96 8 Cal. App. 3d at 840. As noted above, the exact date when Carson was released is not 9 stated but, taking Plaintiffs’ allegations as true, the latest date it could have occurred 10 was June 18, 2018. Plaintiffs state that they filed claims, in compliance with section 11 911.2, on December 20, 2019. (SAC at ¶ 15.) This is more than six months after 12 Plaintiffs’ claims accrued upon their release from county jail in mid-2018. 13 Plaintiffs also raise two unique counterarguments not included in the related 14 cases with motions to dismiss. First, Plaintiffs in the present action argue that their 15 claims should be timely based on the continuing violations doctrine. (Pls.’ Opp’n at 9– 16 11.) Plaintiffs contend that Defendants’ actions from the investigation through until 17 Carson’s acquittal consisted of a series of related unconstitutional conduct and that 18 this was connected to the County’s policy. ( at 10.) Plaintiffs’ arguments relate to 19 the “serial acts branch” of the continuing violations doctrine where an earlier act is 20 considered timely so long as it is part of a series of acts of which at least one is timely. 21 , 935 F.3d 738, 747 (9th Cir. 2019). In essence, Plaintiffs 22 argue that the false timeliness of the false arrest and imprisonment should be based 23 on the timeliness of Plaintiffs’ other claims as they are part of a series of 24 unconstitutional acts. The Supreme Court has rejected the usage of the serial acts 25 branch to circumvent timeliness issues for discrete acts. 26 , 536 U.S. 101, 114 (2002). The Ninth Circuit has found that this rule applies to 27 section 1983 claims. , 935 F.3d at 747 (noting that after “little remains of 28 the continuing violations doctrine”). Accordingly, Plaintiffs cannot rely on the later 1 alleged malicious prosecution of Carson to maintain the timeliness of their earlier false 2 arrest and false imprisonment claims. Plaintiffs also passingly claim that the 3 continuing violation was the result of “the County’s policy and custom to violate the 4 constitutional rights of its citizens” which appears to be an attempt to reach towards 5 the systematic brand of the continuing violations doctrine. (Pls.’ Opp’n at 11.) 6 However, the conclusory claim that Plaintiff’s constitutional rights were violated as a 7 result of County policy and practice, raised only briefly in Plaintiffs’ opposition, is 8 insufficient without any additional factual allegations. And in any event, the Ninth 9 Circuit has applied the Supreme Court’s decision in “to abrogate the 10 systematic branch of the continuing violations doctrine as well.” , 935 F.3d at 747. 11 Plaintiffs also argue that Defendants should be equitably estopped from 12 asserting Plaintiffs’ non-compliance with the CTCA. (Pls.’ Opp’n at 9–12.) In support of 13 this, Plaintiffs rely on the four-factor test described in 14 ., 2 Cal.5th 648, 656 (2017). However, they only address a portion of 15 these factors and conclude by simply arguing that “[g]iven the totality of the 16 circumstances, a reasonably prudent person in Carson’s position would not have filed 17 a claim against the government entity that was actively prosecuting him with no 18 evidence of criminality out of fear that this act would also be used against him.” (Pls.’ 19 Opp’n at 12.) In determining whether equitable estoppel should apply to a claim 20 under the CTCA, Plaintiff is required to plead and prove that: “(1) The party to be 21 estopped must know the facts; (2) he must intend that his conduct shall be acted on or 22 must so act that the party asserting the estoppel has a right to believe it is so 23 intended; (3) the latter must be ignorant of the true facts; and (4) he must rely on the 24 former's conduct to his injury.” , No. 2:19-cv-1663-TLN- 25 KJN, 2021 WL 2267669, at *3–4 (E.D. Cal. June 3, 2021) (citing , 26 875 F.2d 699, 709 (9th Cir. 1989)). Plaintiffs’ opposition and the pleadings in the 27 //// 28 //// 1 complaint fail to establish either of the second two factors.5 Plaintiff bears the burden 2 of proving that these factors are satisfied. As Plaintiff has failed to do so, the Court 3 will not apply equitable estoppel to remedy Plaintiff’s non-compliance with the CTCA. 4 Plaintiffs’ failure to present their claims is likely moot as a result of the Court’s 5 finding above that Plaintiffs’ false imprisonment and arrest claims against Defendants 6 Fladager, Harris, and Ferreira are untimely. However, to the extent those claims are 7 not untimely, based on the allegations in the SAC Plaintiffs have also failed to comply 8 with the CTCA. Cal. Gov’t Code § 911.2. Accordingly, Defendants’ motion to 9 dismiss Plaintiffs’ false imprisonment and arrest claims against Defendants Fladager, 10 Harris, and Ferreira on these grounds is also granted. 11 D. Prosecutorial Immunity under Cal. Gov’t Code § 821.6 12 Defendants ask that the Court dismiss Plaintiffs’ claims for violation of California 13 Civil Code section 52.16 on the basis of Defendants’ alleged prosecutorial immunity 14 under California Government Code section 821.6. This provision provides immunity 15 to liability for public employees where the injury was “caused by his instituting or 16 prosecuting any judicial or administrative proceeding within the scope of his 17 employment, even if he acts maliciously and without probable cause.” Cal. Gov’t 18 Code § 821.6. This immunity does not extend to “liability for false arrest or false 19 imprisonment” as such confinement is unlawful or without process. 20 , 754 F. Supp. 2d 1095, 1118 (N.D. Cal. 2010). This exception to section 21 821.6 applies to other claims that are based on a false arrest or imprisonment. 22 5 It appears unlikely that Plaintiffs would be able to satisfy the third factor even if it were properly 23 addressed in any of their pleadings. In the opposition, Plaintiffs appear to suggest that Defendants were aware of all the facts as “Carson alleged false arrest and imprisonment because he asserted the 24 same during in the preliminary hearing and trial.” (Pls.’ Opp’n at 12.) However, this shows that Carson was not ignorant of the true facts, as required by the third factor. Carson would naturally be aware of 25 whether the charges against him were accurate as well as whether he had asserted that he was falsely arrested during preliminary proceedings. The affidavit supporting his arrest was already public and the 26 accrual of this claim had similarly already occurred at this point. It is not readily apparent what facts Carson would not have known that would cause him to act in reliance on Defendants’ conduct. 27 6 Unlike the other related cases with pending motions to dismiss, Plaintiffs did not bring a claim for intentional infliction of emotional distress in the SAC. Accordingly, the arguments in this section differ 28 slightly from the related orders as it addresses only the Bane Act claims. 1 , 568 F.3d 1063, 1071 (concluding section 821.6 was inapplicable 2 not only to a false imprisonment claim but also to “related state causes of action”); 3 , 754 F. Supp. 2d at 1119 (applying this rule to a Bane Act claim); 4 , 78 F. Supp. 3d 1228, 1250 (N.D. Cal. 2015) (denying section 821.6 immunity 5 for intentional infliction of emotional distress claims based on a wrongful detention). 6 Defendants argue that Plaintiffs’ claims are not solely predicated on false arrest and 7 imprisonment so this exception to section 821.6 immunity should not apply. Plaintiffs 8 argue that doing so at this stage would be premature as the Court has not yet found 9 that there was probable cause to justify the arrest. 10 Plaintiffs’ claims are closely related and intertwined with Carson’s alleged false 11 arrest and false imprisonment. Defendants may be correct that this is not the sole 12 basis for Plaintiffs’ Bane Act claims. However, as alleged, Plaintiffs’ claims all stem 13 from Carson’s eventual alleged false arrest and imprisonment. Moreover, the sixth 14 cause of action for a violation of the Bane Act expressly mentions Plaintiffs’ arrest. 15 (SAC ¶ 113.) At this stage of the proceedings, attempting to extricate the portions of 16 those claims that do not involve Plaintiffs’ false arrest — if there are any — would require 17 detailed factual determinations that are not appropriate and cannot be made at this 18 stage. Though the Court may still determine that Defendants are entitled to section 19 821.6 immunity at a later stage of these proceedings, based on the allegations 20 present in the SAC, the Court does not find that Defendants Fladager, Harris, and 21 Ferreira are entitled to section 821.6 immunity as to Plaintiffs’ claims for violation of 22 California Civil Code section 52.1 at this stage of these proceedings. 23 E. Plaintiffs’ Fourteenth Amendment Claims 24 The fourth cause of action in Plaintiffs’ SAC is brought under section 1983 for 25 violation of Plaintiffs’ Fourteenth Amendment rights. (SAC at ¶ 98–105.) Plaintiffs 26 claim that Defendants Bunch, Jacobson, Evers, and Brown violated Plaintiffs’ due 27 process rights by “[failing] to disclose highly exculpatory evidence to prosecutors”, 28 resulting in Plaintiffs being arrested and held in jail. ( at ¶ 101–02.) Defendants 1 move to dismiss these claims on the grounds that Plaintiffs have failed to state 2 cognizable Fourteenth Amendment claims.7 3 In their opposition Plaintiffs also argue that Defendants should be held liable 4 under the Fourteenth Amendment for deliberate fabrication of evidence. (Pls’ Opp’n 5 at 16–17.) However, these are not the claims raised in the fourth cause of action in 6 Plaintiffs’ SAC. ( SAC at ¶ 98–105.) This cause of action in the SAC makes no 7 mention of fabricated evidence and appears specific to the withholding of exculpatory 8 evidence. As such, parties’ arguments about the fabrication of evidence as it relates 9 to this claim are not relevant. 10 Instead, the Plaintiffs’ Fourteenth Amendment claim as actually stated in the 11 SAC specifically alleges that Defendants Bunch, Jacobson, Evers, and Brown “failed to 12 disclose highly exculpatory evidence to even though they knew or should 13 have known or acted with reckless disregard for the fact that withholding such 14 evidence would result in constitutional deprivations of the Plaintiff” and that 15 Defendants Fladager, Harris, and Ferreira were purportedly liable as supervisors and 16 investigators. (SAC at ¶ 101 (emphasis added).) However, there are no factual 17 allegations within the SAC that appear to support the contention that these 18 Defendants withheld evidence from prosecutors and it would appear contrary to other 19 claims in the complaint about the involvement and knowledge of prosecutors in this 20 case. As such, Plaintiffs have failed to state a Fourteenth Amendment claim as the 21 SAC does not contain any factual support for this claim. 22 Plaintiffs do allege facts elsewhere in the SAC that these Defendants fabricated 23 evidence ( SAC at ¶¶ 60, 61, 62) and failed to disclose exculpatory 24 information to the who issued the arrest warrant for Carson. ( , SAC at 25 7 Unlike the motions to dismiss brought in the two related cases, Defendants’ motion in this case is not 26 limited to only the prosecutor Defendants. Additionally, Plaintiffs’ allegations in this action are specific to the withholding of exculpatory evidence compared to the more diverse Fourteenth Amendment 27 claims brought in the related cases. As such, the analysis in this order as to Defendants Fladager, Harris, and Ferreira differs from the other actions. The analysis as to Defendants Bunch, Jacobson, 28 Evers, and Brown is also unique to this order. Conley v. Gibson, 355 U.S. 41, 47 1 ¶¶ 54, 62, 63). As currently pled, however, this specific cause of action does not “give 2 the defendant fair notice of what the ... claim is and the grounds upon which it rests.” 3 , 550 U.S. at 555 (quoting , 355 U.S. 41, 47 (1957)). Given 4 the fact that the complaints in related cases focus their Fourteenth Amendment claims 5 on the fabrication of evidence, as Plaintiff’s opposition also suggests they believe was 6 intended in this case, it appears evident that Plaintiffs may still be able to bring a 7 Fourteenth Amendment Claim and may wish to do so.8 8 Accordingly, Defendants’ motion to dismiss the Fourteenth Amendment claim 9 for failure to state a claim will be granted, with leave to amend.9 10 F. Plaintiffs’ Malicious Prosecution Claims 11 Plaintiffs’ second cause of action is for malicious prosecution in violation of their 12 Fourth Amendment rights.10 Defendants argue that these claims as to Defendants 13 Fladager, Harris, and Ferreira should be dismissed as they are immune for actions that 14 are part of their “prosecutorial activities” (Defs.’ Reply at 6) and because Plaintiffs have 15 failed to allege facts to support a malicious prosecution claim based on their 16 involvement in the investigation as the allegations are conclusory and fail to show the 17 involvement of Defendants Fladager, Harris, and Ferreira (Defs.’ Mot. at 5–6; Defs.’ 18 Reply at 6). 19 “In order to prevail on a § 1983 claim of malicious prosecution, a plaintiff must 20 show that the defendants prosecuted [him] with malice and without probable cause, 21 and that they did so for the purpose of denying [him] equal protection or another 22 specific constitutional right. Malicious prosecution actions are not limited to suits 23

24 8 Though the Court need not reach this issue at this point in light of the failure to state a claim, it does bear noting that Defendants Fladager, Harris, and Ferreira appear entitled to prosecutorial immunity to 25 those actions that are “intimately associated with the judicial phase of the criminal process.” , 320 F.3d 1023, 1028–30 (9th Cir. 2003) 26 9 Given that this is the only claim for which the Court has determined leave to amend would be appropriate, this case will proceed into the discovery phase despite leave to amend being granted as 27 to this sole claim. 10 Defendants in the related cases have not moved to dismiss similar claims in those cases. As such, the 28 analysis here is unique to this case. 1 against prosecutors but may be brought, as here, against other persons who have 2 wrongfully caused the charges to be filed.” , 368 F.3d 3 1062, 1066 (9th Cir. 2004) (citations and internal quotation marks omitted). Generally, 4 a claim of malicious prosecution is not cognizable under section 1983 if the state 5 judicial system has a process which provides a remedy. , 6 828 F.2d 556, 561–62 (9th Cir. 1987). “However, an exception exists to the general 7 rule when a malicious prosecution is conducted with the intent to deprive a person of 8 equal protection of the laws or is otherwise intended to subject a person to a denial of 9 constitutional rights.” 10 To the extent that Plaintiffs’ allegations concern the actions of Defendants 11 Fladager, Harris, and Ferreira in preparing the arrest warrant application, during 12 preliminary hearings, and in the disclosure of discovery, Defendants are correct that 13 these actions are squarely within the protection of absolute prosecutorial immunity as 14 they are “intimately associated with the judicial phase of the criminal process.” 15 , 693 F.3d 896, 912 (9th Cir. 2012); , 500 U.S. at 492 16 (holding that a prosecutor was granted absolute immunity for the presentation of 17 evidence in support of a search warrant at a probable cause hearing); 18 , 522 U.S. 118, 129 (1997) (holding that a prosecutor’s activities in preparing 19 and filing charging documents are protected by absolute immunity); , 320 F.3d 20 at 1030. However, Plaintiffs’ allegations appear to extend prior to the beginning of 21 the judicial proceedings when the investigation was ongoing. ( SAC at ¶ 79.) 22 Defendants argue that the allegations as to the investigatory phase are too conclusory 23 to state a claim.11 (Defs.’ Reply at 6.) 24 For purposes of motion to dismiss, Plaintiffs have alleged sufficient facts to 25 proceed on the malicious prosecution claim. Plaintiffs have alleged that Defendants 26 11 Defendants initially appeared to argue that Plaintiffs’ claim failed as they had not alleged that 27 Defendants Fladager, Harris, and Ferreira were “personally involved” in the deprivation of Plaintiffs’ rights (Defs.’ Mot. at 5–6) but in their reply appear to clarify that their argument is that Plaintiffs’ 28 allegations are conclusory and lack sufficient factual allegations (Defs.’ Mot. at 6). 1 Fladager, Harris, and Ferreira each “[s]upervised and knowingly condoned the 2 intimidation and coercion of witnesses in order to create false evidence against 3 Carson” during the investigation. (SAC at ¶¶ 57–59.) These allegations, made in 4 connection with lengthy supporting factual allegations about the events of the 5 investigation, are at least minimally sufficient to establish that Defendants Fladager, 6 Harris, and Ferreira sought to prosecute Carson with malice and without probable 7 cause. , 1:16-cv-01834-DAD-SKO, 2017 WL 6311663, 8 at *2 (E.D. Cal. Dec. 11, 2017) (citing , 779 F.3d 1010, 9 1015 (9th Cir. 2015)). As such, Plaintiffs have alleged sufficient facts to support a 10 malicious prosecution claim against Defendants Fladager, Harris, and Ferreira as to 11 their actions during the initial investigation. 12 Given the above, the Court grants Defendants’ motion to dismiss as to Plaintiffs’ 13 claims against Defendants Fladager, Harris, and Ferreira as to their actions during 14 judicial proceedings including the preparation of the arrest warrant motion, the 15 withholding of evidence during pretrial proceedings, and any actions they took as a 16 prosecutor in connection with preliminary proceedings. The Court denies 17 Defendants’ motion to dismiss these claims as they relate to the involvement of 18 Defendants Fladager, Harris, and Ferreira in the earlier three-year investigation. 19 G. Plaintiffs’ Retaliatory Prosecution Claims 20 Plaintiffs claim that Defendants prosecuted Carson in retaliation for 21 constitutionally protected activities in violation of First Amendment rights.12 Despite 22 Defendants’ arguments to the contrary, Plaintiffs have alleged sufficient facts to state 23 such a claim. To state a First Amendment retaliation claim, a plaintiff must allege “that 24 (1) he was engaged in a constitutionally protected activity, (2) the defendant's actions 25 would chill a person of ordinary firmness from continuing to engage in the protected 26 activity and (3) the protected activity was a substantial or motivating factor in the 27 12 Similar claims have not been raised by the Plaintiffs in the related cases. As such, the analysis here is 28 unique to this case. 1 defendant's conduct.” , 940 F.3d 1046, 1053 (9th Cir. 2 2019) (citations and quotation marks omitted). The third element, the causal 3 connection between a defendant's retaliatory animus and subsequent injury, can be 4 met by showing the absence of probable cause, supporting the assertion that 5 retaliation was the cause of the prosecution. , 547 U.S. 250, 265 6 (2006). 7 Plaintiffs have alleged that Carson was engaged in constitutionally protected 8 activity in multiple forms. Contrary to Defendants’ assertions that Plaintiffs’ allegations 9 are conclusory, the allegations regarding Carson’s alleged constitutionally protected 10 action are detailed and numerous. These actions include: open criticism of the SCDA 11 for overuse of wiretapping (SAC at ¶ 4), running a political campaign against 12 Defendant Fladager to become District Attorney ( ), publicly accusing Defendant 13 Fladager of abuse of power and misconduct ( ), writing a complaint to the California 14 State Bar alleging misconduct by Defendant Harris ( at ¶ 29), filing declarations in 15 court “accusing Defendant Bunch of being unethical and a liar” ( ), filing a lawsuit 16 against Defendant Jacobson for assault ( ), participation in a jury tampering hearing 17 regarding Defendant Jacobson ( ), and the running of newspaper ads accusing 18 Defendant Jacobson of misconduct ( ). Voicing criticism of an agency’s conduct is 19 well settled as a constitutionally protected activity, thus satisfying the first requirement 20 for a retaliation claim. , 940 F.3d at 1054. 21 While Defendants are correct that the Court previously granted a motion to 22 dismiss in a separate case for similar claims, they are incorrect in suggesting that the 23 factual allegations between the complaint at issue there and the current operative 24 complaint in the present case are identical. In this prior motion, the other court noted 25 that the complaint only included a few lines of factual allegations as to the nature of 26 the plaintiffs’ protected speech. , No. 1:18-cv- 27 00496-TLN-BAM, 2022 WL 4237860, at *9 (E.D. Cal. Sept. 14, 2022). This differs from 28 the present complaint where there are numerous allegations as to the protected 1 speech Carson was engaged in. Further, the case presented standing 2 issues that are also not present here. 3 Turning to the second requirement, the Court notes that a First Amendment 4 claim does not require that Plaintiffs’ speech was actually chilled by Defendants’ 5 action, as Defendants seem to suggest by noting Carson was still able to sue 6 Defendant Jacobson and run for District attorney. (Defs.’ Reply at 7.) Instead, the 7 question is “whether the alleged retaliation would chill a person of ordinary firmness 8 from continuing to engage in the protected activity.” , 940 F.3d at 1054 9 (citations, quotation marks, and emphasis removed). The alleged retaliation that 10 Carson suffered would certainly chill the speech of a person of ordinary firmness. 11 Under the facts alleged, Carson was subject to arrest, charged with murder, and held 12 in jail for months in retaliation. These circumstances are more than sufficient to chill 13 speech. , 693 F.3d at 917 (arrest in retaliation is sufficient to chill speech). 14 Finally, as to the causation element is sufficiently alleged to state a claim. 15 Plaintiffs claim that at the time the arrest warrant was created, Defendants were aware 16 that their primary witness had already recanted his testimony, denying any 17 involvement and passing a polygraph to that effect. (SAC at ¶ 50.) Plaintiffs also claim 18 that Defendants intentionally made “significant material misstatements, 19 misrepresentations, lies, fabrications and blatant omissions of exculpatory 20 information” in the arrest warrant, which Plaintiffs detail at length in the SAC. ( at 21 ¶ 54.) While the Court cannot determine at this time whether there did not exist 22 probable cause for Carson’s arrest as doing so would require the Court to make 23 factual findings that are inappropriate at the pleadings stage, it does find that Plaintiffs 24 have included sufficient factual allegations to support the claim that no probable 25 cause existed and that retaliation was the but-for cause of Carson’s arrest and 26 prosecution. ,940 F.3d at 1053; see also , 547 U.S. at 265. 27 Defendants’ argument that the retaliation claims against Fladager, Harris, and 28 Ferreira are not cognizable because they are supervisors is unpersuasive. While it is 1 true that these Defendants would not be liable simply due to their status as 2 supervisors, the SAC includes specific allegations about these individuals’ personal 3 involvement in the alleged retaliatory acts. ( SAC at ¶ 57–59.) This is more than 4 sufficient to state a claim against these Defendants on motion to dismiss. 5 , 556 U.S. 662, 676 (2009) (“Because vicarious liability is inapplicable to Bivens 6 and section 1983 suits, a plaintiff must plead that each Government-official defendant, 7 through the official's own individual actions, has violated the Constitution.”) 8 Given the above, Plaintiffs have alleged sufficient facts to state a First 9 Amendment retaliatory prosecution claim against Defendants. Defendant’s Motion to 10 Dismiss will be denied as to Plaintiffs’ First Amendment retaliation claims. 11 Plaintiffs also attempt to bring a retaliation claim under the Fourth Amendment 12 but as has been noted in related cases, no such cause of action seems to exist. 13 , 2022 WL 4237860, at *9. In their opposition, Plaintiffs suggest that instead 14 this was intended to be a Fourth Amendment retaliatory claim, arguing that an 15 arrest without probable cause would violate the Fourth Amendment. However, 16 “retaliation” claims are specific to the First Amendment as retaliation is 17 unconstitutional when it chills protected activities, violating the First Amendment. 18 , 781 F.2d 1334, 1338 (9th Cir.1986) (“Action designed to 19 retaliate against and chill political expression strikes at the heart of the First 20 Amendment.”), 479 U.S. 1054 (1987). The Fourth Amendment presents 21 no such grounds on which to claim protection from retaliation. When Plaintiffs 22 suggest there must be a Fourth Amendment claim because “a retaliatory arrest 23 without probable cause would violate the Fourth Amendment protection against 24 unreasonable seizure” (Pls’ Opp’n at 15), Plaintiffs appear to be effectively describing 25 a Fourth Amendment false arrest claim. , , 250 F.3d 26 668, 685 (9th Cir. 2001). However, the statements and allegations as to this third 27 cause of action in the SAC fail to establish this claim and, if they did, it would likely be 28 duplicative of Plaintiffs’ second cause of action. Thus, Defendants’ motion to dismiss 1 Plaintiffs’ First Amendment retaliation claims is denied and Defendants’ motion to 2 dismiss Plaintiffs’ Fourth Amendment retaliation claims is granted. 3 H. Plaintiffs’ Claims 4 Plaintiffs have alleged that the County of Stanislaus violated their constitutional 5 rights through the custom and/or policy, commonly known as a claim.13 (SAC 6 at 51–52.) In order to state a claim, Plaintiffs must show that the municipality's 7 policy or custom caused the alleged constitutional injury. 8 , 507 U.S. 163, 166 (1993); 9 , 436 U.S. 658, 694 (1978). Defendants argue that the allegations in the 10 SAC are insufficient as Plaintiffs fail to establish the existence of a policy or custom that 11 resulted in the violation of Plaintiffs’ rights. (Defs.’ Mot. at 11.) 12 In the SAC, Plaintiffs do not raise any allegations regarding specific customs or 13 policies of the County of Stanislaus. ( SAC.) Instead, Plaintiffs appear to rest their 14 claim on allegations that Defendants Fladager and Harris were final 15 policymakers and thus “[the] malicious and retaliatory arrest and prosecution of 16 [Carson]” by Defendants Fladager and Harris amounts to the policy of the County of 17 Stanislaus. ( at ¶ 108.) These allegations are insufficient to successfully state a 18 claim. 19 While district attorneys can act as local policymakers, they are not automatically 20 considered local policymakers by nature of their role. The Ninth Circuit’s decision in 21 , upon which Plaintiffs mainly rely in opposing Defendants’ motion, 22 determined that California district attorneys were acting as local policymakers when 23 they adopted policies related to the use of jailhouse informants 24 , 715 F.3d 750, 755 (9th Cir. 2013). It did not find that district attorneys 25 were constantly acting as local policymakers in every action they made and relied in 26 part on an analysis of the important role of California district attorneys in creating the 27 13 Defendants in the related cases have not moved to dismiss similar claims in those cases. As such, the 28 analysis here is unique to this case. 1 policy for jailhouse informants. at 758–59. By contrast, Plaintiffs here have only 2 provided the conclusory allegation that Defendants Fladager and Harris were “final 3 decisionmakers for the Stanislaus County District Attorney’s Office and the County of 4 Stanislaus . . . .” (SAC at ¶¶ 22, 108.) In doing so, Plaintiffs essentially rely on the titles 5 of these Defendants to create liability for their alleged actions. These 6 allegations are insufficient. 7 Plaintiffs’ broad allegations that Stanislaus should be held liable based on the 8 failure of Defendants Fladager and Harris “to provide adequate training and 9 supervision of Stanislaus County District Attorney attorneys and investigators, and 10 Sheriff’s Department deputies with respect to the constitutional limits on search, 11 seizure, arrest, and detention” are similarly conclusory and insufficient. (SAC at ¶ 20.) 12 liability is “at its most tenuous” predicated on a theory of failure to train. 13 , 563 U.S. 51, 61 (2011). Plaintiffs’ conclusory allegations are 14 insufficient to support inferences that the County of Stanislaus’ training policy amounts 15 to deliberate indifference to constitutional rights or that the constitutional injury would 16 not have resulted with proper training. , 993 F.3d 17 1134, 1153–54 (9th Cir. 2021). 18 Given the above, Plaintiffs have failed to allege sufficient facts in the SAC to 19 support a claim against Stanislaus County. As such, Defendants’ motion to 20 dismiss will be granted as to this claim. 21 I. Plaintiffs’ Bane Act Claims 22 In Defendants’ motion to dismiss, Defendants argue that Plaintiffs have failed to 23 state a cognizable Bane Act claim under California Civil Code section 52.1 against all 24 Defendants as Plaintiffs have not alleged that any defendant acted with specific intent 25 to violate Plaintiffs’ constitutional rights. (Defs.’ Mot. at 12–13.) Plaintiffs contend that 26 they have satisfied the specific intent element through allegations of threats, 27 intimidation, and coercion by each Defendant and the claim that the Defendants were 28 involved in a conspiracy to deny Plaintiffs’ rights. (Pls.’ Opp’n at 20–21.) 1 Taking the allegations in the SAC as true, the Court finds Plaintiffs have alleged 2 sufficient facts to support that Defendants acted with specific intent to violate Plaintiffs’ 3 constitutional rights. The Bane Act provides a private cause of action against anyone 4 who “interferes by threats, intimidation, or coercion, or attempts to interfere by 5 threats, intimidation, or coercion, with the exercise or enjoyment by an individual or 6 individuals of rights secured by the Constitution or laws of the United States, or laws 7 and rights secured by the Constitution or laws of California.” Cal. Civil Code § 52.1(a). 8 Plaintiffs are correct that ”a reckless disregard for a person's constitutional rights is 9 evidence of a specific intent to deprive that person of those rights.” 10 , 888 F.3d 1030, 1043 (9th Cir. 2018) (internal citations and quotations 11 omitted). The complaint, as currently formulated, clearly asserts facts to support the 12 claim that Defendants acted with reckless disregard to Plaintiffs’ constitutional rights. 13 Specifically, Plaintiffs allege that Defendants prepared and requested arrest warrants 14 for Plaintiffs despite knowing the evidence to support such an arrest was insufficient. 15 Plaintiffs further allege that Defendants did this in order to retaliate against Carson. At 16 this stage of these proceedings, these allegations are sufficient to show that 17 Defendants acted with reckless disregard to Plaintiffs’ right to be free from 18 unreasonable seizure. , 888 F.3d at 1043. Accordingly, Defendants’ motion to 19 dismiss these claims is denied. 20 CONCLUSION 21 This is an unusual case. The Court is cognizant of the fact that a Superior Court 22 Judge dismissed the underlying criminal charges as to the Plaintiffs in this action, 23 which necessarily lends support to the allegations in the Complaint, making them 24 more “plausible on their face” than they might have otherwise been. , 556 25 U.S. at 678. Whether Plaintiffs will be able to produce sufficient evidence to support 26 those allegations in order to survive summary judgment or prevail at trial is of course a 27 question to be left for another day. 28 //// 1 In accordance with the above and good cause appearing, IT IS HEREBY 2 ORDERED that Defendants’ Motion to Dismiss (ECF No. 71) is GRANTED IN PART and 3 DENIED IN PART as follows: 4 1. Defendants’ Motion to Dismiss claims against Fladager, Harris, Ferreira, 5 Bunch, Jacobson, and Brown in their official capacity is GRANTED; 6 2. Defendants’ Motion to Dismiss the claims against Fladager and 7 Harris is GRANTED; 8 3. Defendants’ Motion to Dismiss Plaintiffs’ Judicial Deception, False 9 Imprisonment, and False Arrest Claims against Defendants Fladager, Harris, 10 and Ferreira as untimely is GRANTED; 11 4. Defendants’ Motion to Dismiss Plaintiffs’ False Imprisonment and False 12 Arrest Claims against Defendants Fladager, Harris, and Ferreira for failure to 13 comply with the California Tort Claims Act is GRANTED; 14 5. Defendants’ Motion to Dismiss claims against Defendants Fladager, Harris, 15 and Ferreira for intentional infliction of emotional distress and violation of 16 California Civil Code § 52.1 on the basis of immunity under Cal. Gov’t Code 17 § 821.6 is DENIED; 18 6. Defendants’ Motion to Dismiss Plaintiffs’ Fourteenth Amendment claims 19 against Defendants Fladager, Harris, Ferreira, Bunch, Jacobson, Evers, and 20 Brown for failure to state a claim is GRANTED. This claim is dismissed with 21 leave to amend. Within thirty (30) days of this order, Plaintiffs may file an 22 amended complaint seeking to state a Fourteenth Amendment claim; 23 7. Defendants’ Motion to Dismiss Plaintiffs’ Fourth Amendment Malicious 24 Prosecution claims against Defendants Fladager, Harris, Ferreira, and Bunch 25 is GRANTED on grounds of prosecutorial immunity, but is DENIED where 26 the claims as they relate to the involvement of Defendants in the earlier 27 investigation; and 28 8. Defendants’ Motion to Dismiss Plaintiffs’ retaliatory prosecution claim is 1 DENIED as to Plaintiffs’ First Amendment claim but GRANTED as to Plaintiffs’ 2 Fourth Amendment claim; and 3 9. Defendants’ Motion to Dismiss Plaintiffs’ Mone//claim for failure to state a 4 claim is GRANTED; and 5 10.Defendants’ Motion to Dismiss Plaintiffs’ claims under California Civil Code 6 section 52.1 against Defendants Fladager, Harris, and Ferreira is DENIED. 7 To the extent the Court has dismissed claims in the Second Amended 8 | Complaint, with the exception of Plaintiffs’ Fourteenth Amendment claim, these claims 9 | are dismissed without leave to amend. Plaintiffs have had several opportunities to 10 | cure the defects identified above, and the Court finds that any further amendments 11 would be futile. Klamath-Lake Pharm. Ass'n v. Klamath Med. Serv. Bureau, 701 F.2d 12 | 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall be freely given, the 13 | court does not have to allow futile amendments). 14 15 IT |S SO ORDERED. 16 | Dated: _ September 8, 2023 Bek | Cbabeatin.. Hon. Daniel labretta 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 DJC1 - carson20cv00747.mtd 22 23 24 25 26 27 28 29