Kessler v. City of Atwater

• Court: District Court, E.D. California
• Decided: July 11, 2025
• Docket: 1:25-cv-00288
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 BRADLEY S. KESSLER, an individual; BK- Case No.: 1:25-cv-00288 JLT SKO INDUSTRIES, Inc., a California Corporation; 12 AG-K PROPERTIES, LLC, ORDER TO BRIAN K. CUTTONE TO SHOW CAUSE WHY SANCTIONS SHOULD NOT BE 13 Plaintiffs, IMPOSED FOR VIOLATIONS OF RULE 11

14 v.

15 CITY OF ATWATER, a Municipal Corporation; et al., 16 Defendants. 17

18 On behalf of the plaintiffs, Mr. Cuttone filed oppositions to the defendants’ motions to dismiss, 19 (Doc. 28, Doc. 28-3) and a reply to the defendants’ motions to remand (Doc. 32). In each filing, it 20 appears to the Court that Mr. Cuttone cited to cases that do not exist, cited to cases that do not stand 21 for the proposition claimed, or included purported quotations that do not exist in the cited case. 22 I. The Briefs 23 Mr. Cuttone’s briefs opposing the motions to dismiss and replying to the opposition to the 24 motion remand, seem to violate the most basic duty imposed on attorneys to be honest with the Court. 25 The Court and its staff have spent hours checking the cites proffered by Mr. Cuttone and, as a result, 26 has been delayed in addressing the merits of the motions. This Court—being one of the busiest in the 27 Country and with higher caseloads per judge than nearly every other district court—can sorely afford 28 to waste its resources in this manner. So that counsel is clear as to the extent of the problem, the Court 1 sets forth examples below: 2 A. Cases cited that don’t exist 3 Mr. Cuttone cites the following cases: Gonzalez v. County of Los Angeles, 2006 WL 589285 4 (Doc. 28 at 21); McGill v. City of Redding, 47 Cal. App. 4th 235, 241 (1996) (Doc. 28 at 21); Ramos v. 5 County of Madera, 2019 WL 2092748 (Doc. 28 at 19); Yaka v. City of San Jose, 160 Cal. App. 4th 6 139 (2008) (Doc. 28 at 21). Simmons v. City of Sacramento, 32 Cal. 4th 480, 491 (2004) (Doc. 28 at 7 22); Kohn v. Kohn, 195 Cal. App. 4th 932, 945 (2011) (Doc. 28-3 at 21). None of these cases exist. 8 Though there are cases with the same or similar names with different citations, none with the same 9 name address the issues raised in the pleadings. Thus, it does not appear that these citations can be 10 explained as typographical errors; rather, it appears these cases have been created out of whole cloth. 11 B. Inserting quotations that don’t exist 12 The briefs include quotation that don’t actually appear in the cases to which they are attributed. 13 One brief quotes Espindola v. Nunez, 199 Cal. App. 4th 1389 (2011)1 as follows: “Section 415.20 does 14 not require that service be attempted at both a defendant’s residence and place of business.” Mr. 15 Cuttone asserts that this quote is found at page 1393 of the opinion; it does not. (Doc. 32 at 11) This 16 quote does not exist anywhere in this case. Indeed, a word search reveals that the phrase, “place of 17 business,” is not found in Espindola. 18 The same brief purports to quote from Harrell v. 20th Judicial Circuit of Florida, 934 F.3d 19 203, 205 (11th Cir. 1991) as follows: “State courts, not federal courts, should be the final arbiters of 20 state law.” (Doc. 32 at 13) This quote is not found in the brief and the word “arbiters” is not used at all 21 in the Harrell court’s opinion. In another brief, it quotes City of Montebello v. Vasquez, 1 Cal. 5th 409, 22 422 to say: “[g]overnment officials may not rely on the anti-SLAPP statute to insulate themselves 23 from liability for actual tortious conduct merely because that conduct may be connected to speech.” 24 (Doc. 28-3 at 18) This quote does not exist in the case and, again, the word “tortious” is not used in the 25 opinion. 26 A brief quotes Navellier v. Sletten, 29 Cal. 4th 82 (Doc. 28-3 at 17) to say that “a defendant 27 28 1 The citation noted in Mr. Cuttone’s papers is incorrect. The correct citation is 199 Cal.App.3d 1389. 1 who engages in protected conduct is not immune from liability if the plaintiff can show that the 2 conduct was unlawful and caused injury.” Though Navaellier discusses SLAPP actions and anti- 3 SLAPP motions, the purported quote does not appear in the case. In fact, the case holds opposite to the 4 alleged quote, indicating that if the lawsuit is filed due to the defendant’s protected activity, it is, by 5 definition, a SLAPP action. It holds further that an action will be dismissed through an anti-SLAPP 6 motion unless the plaintiff can demonstrate that he/she will prevail on the merits. 7 C. Citing cases for propositions not discussed in the case or supported by the case 8 A brief cites Caldwell v. Montoya, 10 Cal. 4th 972, 989 (1995) (Doc. 28 at 22), to support the 9 assertion that, “California courts have consistently held that government actors may be liable for 10 intentional torts, including defamation and fraud.” Though the Court does not have any real 11 disagreement with this contention, Caldwell doesn’t speak to defamation or fraud or intentional torts in 12 general, though it does hold that immunity does not extend to intentional acts under FEHA. 13 The same brief cites Turner v. California, 232 Cal.App.3d 883, 888 (Doc. 28 at 21) for the 14 proposition that the Government Claims Act does not have a claims-filing requirement for claims 15 asserting defamation or fraud. Turner does not stand for that proposition, nor does it discuss anything 16 remotely associated with that topic. Instead, in Turner, the plaintiff sued the state after being shot by 17 an unknown person in a parking lot associated with the California State Fair. Turner at 887. The 18 plaintiff asserted that the state should be held liable for having inadequate lighting in the parking lot 19 and because it was aware of other assaults in the parking lot but did not warn of the risks. Id. at 887- 20 888. The court affirmed the grant of summary judgment and discussed the claims of the case— 21 specifically, negligence and premises liability and, at page 888—to which the brief specifically refers 22 the Court—the court discussed information that is required to be included in a governmental claim. 23 None of this addresses the claimed legal proposition. 24 The same brief also cites Cameron v. State of California, 66 Cal. 2d 25, 292 (1967) (Doc. 28 at 25 22), to assert that, “Government employees are not immune from liability for intentional torts.” Not 26 only is this not an entirely correct statement of law (See e.g., Gov’t Code §§ 820, et seq., which, in 27 28 2 The citation noted in the brief is incorrect. The correct citation is 7 Cal.3d 318. 1 general, immunize employees for tortious conduct if taken in good faith), but Cameron’s holding is 2 limited to the determination that though design immunity applies for a public road’s design, the 3 defendant may still be held liable for failure to provide warning signs related to hazards encompassed 4 in the design. It does not speak to immunity for intentional conduct, in general. The brief also cites 5 Cornell v. City & County of San Francisco, 17 Cal. App. 5th 766, 800-801 (Doc. 28 at 22), and claims 6 that this case stands for the proposition that, “Public employees are not immune under Government 7 Code § 820.2 when they act with malice, fraud, or oppression.” Cornell does not address acts of 8 malice, fraud or oppression. Rather, Cornell, at the page cite noted by the brief, speaks to liability 9 under the Bane Act. Elsewhere, the Cornell court discusses the fact that Penal Code section 847 does 10 not provide qualified immunity for false arrest. 11 The brief also cites to other cases for various propositions that the cases do not support. It cites 12 Thayer v. Kabateck Brown Kellner, 207 Cal. App. 4th 141 (2012) (Doc. 28 at 14) and claims that 13 Thayer holds that, “Fraudulent conduct is never protected under the Anti-SLAPP statute or otherwise.” 14 Though, in Thayer, the plaintiff asserted that anti-SLAPP motion did not lie as to claims of a breach of 15 fiduciary duty or fraud, Thayer noted that the cases cited by the plaintiff to support the arguments did 16 not apply to the factual circumstances raised in that case. Thus, Thayer had no occasion to speak to 17 this issue. Along these same lines, another brief cited to Church of Scientology v. Wollersheim, 42 Cal. 18 App. 4th 628 (Doc. 28-3 at 17) to support his claim that “defamatory statements are actionable and not 19 insulated by the Anti-SLAPP statute.” Rather than issuing a holding such as that claimed, the court 20 observed only that many SLAPP actions are based on defamation, business torts, nuisance and 21 intentional infliction of emotional distress but that there was no prohibition on bringing a SLAPP 22 action that raised a different claim. 23 The brief cites Kashian v. Harriman, 98 Cal. App. 4th 892, 905 (Doc. 28-3 at 17) to claim, 24 “The same reasoning [discussed above as to Navellier] applies to fraud and breach of contract claims, 25 which are inherently grounded in unlawful and deceptive conduct rather than protected speech.” Once 26 again, the Court disputes that this is a correct statement of law. Breaches of contract need not have any 27 underlying claim of fraud. Even still, though Kashian discussed SLAPP actions and anti-SLAPP 28 motions, and agreed that unprotected conduct is not a basis for a SLAPP action, it did not hold that a 1 breach of contract sounds in fraud nor determined whether it can constitute protected speech. Kashian 2 at page 905, discusses what a SLAPP action is, rather than drawing conclusions about what it is not. 3 Finally, the brief cited Hagberg v. Cal. Fed. Bank, 32 Cal. 4th 350, 359 (Doc. 28-3 at 18), to 4 support this argument: 5 Moreover, the gravamen of Plaintiffs FAC concerns Defendants' conduct – including obstruction of business operations, intentionally hindering and delaying the processing 6 of permits to cause economic harm to Plaintiffs, intentionally adding unnecessary conditions on projects of Plaintiffs that were not imposed on other developers on 7 similar projects and the intentional dissemination of false and damaging statements. These acts fall outside the purview of constitutionally protected petitioning and speech. 8

9 Despite what the brief claimed at the cited page of Hagberg, the court discusses the immunity 10 provided by Civil Code section 47(b) related to a call to the police reporting that the plaintiff had tried 11 to pass a bad check. Hagberg found that calling the police to report suspected criminal activity and 12 seeking police assistance related to suspected criminal are activities made privileged by Section 47(b). 13 Hagberg found that liability for these acts could be founded only on evidence that they constituted 14 malicious prosecution. The court did not discuss whether acts, such as those set forth above in the brief 15 or any akin to them, constitute protected speech. 16 II. Order to Show Cause 17 When confronted with similar issues, courts have ordered the filing attorneys to show cause 18 why sanctions or discipline should not issue. See generally United States v. Hayes, No. 2:24-cr-0280- 19 DJC, 2024 WL 5125812 (E.D. Cal. Dec. 16, 2024); Mata v. Avianca, Inc., No. 22-cv-1461 (PKC), 20 2023 WL 3696209 (S.D.N.Y. May 4, 2023); Wadsworth v. Walmart, Inc., No. 2:23-cv-118-KHR, 21 2025 WL 515094 (D. Wyo. Feb. 6, 2025). The Court has this authority. 22 Local Rule 110 states that the “[f]ailure of counsel or of a party to comply with these Rules or 23 with any order of the Court may be grounds for imposition by the Court of any and all sanctions 24 authorized by statute or Rule or within the inherent power of the Court.” Local Rule 180(e) states: 25 Standards of Professional Conduct. Every member of the Bar of this Court, and any attorney permitted to practice in this Court under (b), shall become familiar with and 26 comply with the standards of professional conduct required of members of the State Bar of California and contained in the State Bar Act, the Rules of Professional Conduct of 27 the State Bar of California, and court decisions applicable thereto, which are hereby adopted as standards of professional conduct in this Court. In the absence of an applicable 28 standard therein, the Model Rules of Professional Conduct of the American Bar Association may be considered guidance. No attorney admitted to practice before this 1 Court shall engage in any conduct that degrades or impugns the integrity of the Court or in any manner interferes with the administration of justice. 2

3 Local Rule 184(a) states: 4 Discipline. In the event any attorney subject to these Rules engages in conduct that may warrant discipline or other sanctions, any Judge or Magistrate Judge may initiate 5 proceedings for contempt under 18 U.S.C. § 401 or Fed. R. Crim. P. 42, or may, after reasonable notice and opportunity to show cause to the contrary, take any other 6 appropriate disciplinary action against the attorney. In addition to or in lieu of the foregoing, the Judge or Magistrate Judge may refer the matter to the disciplinary body of 7 any Court before which the attorney has been admitted to practice. 8 Accordingly, the Court ORDERS: 9 1. Within seven days, Mr. Cuttone SHALL review each and every legal citation set 10 forth in Docs. 28, 28-3 and 32 to ensure the case exists and, if it does, whether it contains the claimed 11 quotation and whether it stands for or supports the contention raised in his brief. He SHALL file a 12 declaration certifying that he has done so and explaining in detail if he finds any other errors in the 13 citations used in his briefs filed at Docs. 28, 28-3 or 32. 14 2. As to each case discussed in Headnote I.A., within seven days, Mr. Cuttone SHALL 15 file a true and correct copy of the case cited. If he cannot locate the case, within seven days, he 16 SHALL include in the declaration required by paragraph 1, a detailed explanation as to the 17 circumstances giving rise to his conduct. 18 3. As to each case discussed in Headnote I.B., within seven days, Mr. Cuttone SHALL 19 provide a true and correct copy of the page(s) of the case where the quotation, noted in his brief is 20 found, with the quotation highlighted. The filings must reflect the case name and correct citation, 21 including the specific page cite. If he cannot locate the quotation in the case he cited, within seven 22 days, he SHALL include in the declaration required by paragraph 1, a detailed explanation as to the 23 circumstances giving rise to his conduct. 24 4. As to each case discussed in Headnote I.C., within seven days, Mr. Cuttone SHALL 25 provide a true and correct copy of the page(s) of the case, which he contends supports the proposition 26 for which he cited it in his brief, with the court’s relevant analysis highlighted. The filings must reflect 27 the case name and correct citation, including the specific page cite. If he cannot locate support in the 28 cited case, within seven days, he SHALL include in the declaration required by paragraph 1, a 1 || detailed explanation as to the circumstances giving rise to his conduct. 2 2. Within the same seven-day period, he SHALL show cause why he should not be 3 || sanctioned pursuant to: (1) Fed. R. Civ. P. 11(b), (c); (2) 28 U.S.C. § 1927; and (3) the inherent powe 4 || of the Court to order sanctions for citing non-existent cases to the Court. See Hayes, 2024 WL 5 115125812, at *5. The written submissions SHALL take the form of a sworn declaration. Mr. Cuttone 6 || must provide a thorough explanation for how these briefs came to be filed as they are and why such 7 |) conduct will not recur in the future. 8 3. After the Court receives the filings and has adequate time to review them, the Court 9 || will determine whether it will set a hearing on this order to show cause. 10 11 IT IS SO ORDERED. || Dated: _ duly 11, 2025 ( LAW pA wn. 13 TED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28