151 Garson
151 Garson
151 Garson
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STUART, AN INDIVIDUAL,
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Plaintiffs
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v.
SAN DIEGO COUNTY BAR
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Defendants.
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Joinder to the County of San Diegos Motion to Dismiss (III, V, VI, VII, VIII, IX,
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and XI), and Supplement to Omnibus Motion to Dismiss First Amended Complaint.
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Document Number: 762965
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DISCUSSION
1. MALICIOUS PROSECUTION/PROSECUTORIAL IMMUNITY
prosecutorial misconduct by the City Defendants who conspired with other private
disgruntled over his prior arrests, convictions in state court and ensuing prison
sentences. Plaintiff Stuart is barred from reframing his state court litigation here.
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hear direct appeals from prior state court judgments. Cooper v. Ramos, 704 F.3d
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Plaintiffs purported claims for relief against the City Defendants fail as
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insufficient facts have been pled under a cognizable theory and because there is a
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dismiss an action for lack of subject matter jurisdiction. See Savage v. Glendale
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2013 WL 1750960 (N.D. Cal. Apr. 23, 2013), the Court applied the Rooker-
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under 42 USC 1983, 1985, and 1986 for alleged misconduct including
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The Ninth Circuits decision in Cooper v. Ramos, 704 F.3d 772 (9th Cir.
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2012), illustrated the application of this doctrine. In Cooper the Plaintiff brought a
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1983 conspiracy claim alleging that, in violation of his substantive due process
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rights, various public officials conspired to tamper with and falsify evidence during
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the murder investigation and trial in which plaintiff was convicted of murder. The
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Ninth Circuit ruled that Plaintiff's federal case to obtain additional DNA testing of
evidence was inextricably intertwined with state court's order denying his request to
obtain DNA testing, and thus was barred by the Rooker-Feldman doctrine as
engage in evidence tampering, an issue on which the state court, in denying further
DNA testing in the criminal proceedings, had already determined that plaintiff's
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prosecution committed by the City Defendants, as this Court lacks subject matter
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B.
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against the City Defendants. The foundation for this privilege and immunity from
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suit is founded upon the holding of Fry v. Melaragno, 939 F.2d 832, 837 (9th Cir.
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Litigation Privilege
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Fry v. Melaragno, 939 F.2d 832, 837 (9th Cir. 1991), treated as dictum/receded
from in, Stapley v. Pestalozzi, 12-16145, 2013 WL 4266907 (9th Cir. Aug. 16,
2013).
Although Plaintiff Stuart does not set forth a specific factual statement for the
claims against Defendant City Attorney Jan Goldsmith and Emily Garson, it is
reasonable to infer that this action is brought against them for some act or acts
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because their function is integral to the judicial process. Imbler v. Pachtman, 424
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U.S. 409, 96 S. Ct. 984, (1976). Further, in Imbler, supra, the Court held that
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rights suits for damages under 42 U.S.C. 1983. Therefore, given the prosecutorial
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immunity afforded to the City Defendants, Plaintiffs claims within the FAC related
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public employee is not liable for injury caused by his instituting or prosecuting any
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public prosecutor. Miller v. Filter, 150 Cal. App. 4th 652, 666 (2007). This
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immunity is also absolute, applying even if the prosecutor acts maliciously and
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civil suits. Gillan v. City of San Marino, 147 Cal. App. 4th 1033, 1048 (2007).
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Therefore, the City Defendants are entitled to the litigation privilege, whether
the claim is brought under State or Federal law and Plaintiff Stuarts Malicious
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dismissed.
2.
Any claim in the FAC regarding lack of supervision should fail, if based on
negligent supervision under state law. Under the California Tort Claims Act, all
statutory based theory of recovery. Searcy v. Hemet Unified Sch. Dist., 177 Cal.
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Additionally, a supervisor is not liable under 1983 unless there exists either
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sufficient causal connection between the supervisors wrongful conduct and the
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constitutional violation. Hansen v. Black, 885 F.2d 642 645-646 (9th Cir. 1989)
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Here, there are no allegations regarding the City Attorneys personal involvement
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in the prosecution of Plaintiff Stuart, or any causal connection between the City
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3.
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Plaintiff does not plead, independently, any facts to warrant liability against
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the City. Any allusion to entity liability by this Plaintiff is dependent upon the
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stated against the individual defendants. Therefore, no claim should stand against
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the City. Monell v. Dep't of Soc. Servs. Of City of New York, 436 U.S. 658 (1978).
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Further, Plaintiff has also failed to plead the elements of entity liability under
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Monell. Plaintiff failed to allege facts showing that one of the municipalitys
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insufficient basis for a Monell claim. Trevino v. Gates, 99 F.3d 911, 918 (9th
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Cir.1996); see Stanley v. New York, 587 F.Supp. 393 (E.D.N.Y. 1984). A
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municipality cannot be held liable under 1983 on a respondeat superior theory for
supra at 691, 694. Therefore, Plaintiffs claims for Municipal Liability against
With respect to the claims under state law, Plaintiffs failed to present a claim
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to the City of San Diego in a timely manner, and therefore all of the state law
claims should be dismissed without leave to amend.
The California Government Tort Claims Act (the Act) established uniform
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procedures for claims brought against public employees and public entities in the
State of California. Cal. Govt Code 900-935.4 and 940-951. Under the Act,
the submission of a government damages claim to a government entity is a
condition precedent to any claim for money damages against the entity or its
employees. (Cal. Govt Code 945.4) The claim must be filed within six months of
the accrual of the cause of action. (Cal. Govt Code 945.4) The claims
presentation requirement is not required in actions brought under federal law, such
as Section 1983. See Donovan v. Reinbold (9th Cir. 1970) 433 F.2d 738.
However, if pendent causes of action in federal court are based on state claims,
those causes of action are subject to the claims presentation requirements of the
Act. KarimPanahi v. Los Angeles Police Department, 839 F.2d 621, 627 (9th Cir.
1988). In the case at bar, Plaintiffs filed their Complaint on August 20, 2013.
Plaintiffs failed to submit a timely claim to the City of San Diego. Not only was a
claim not filed prior to the filing of the subject lawsuit, it was not filed within the
specified statutory period after the date of occurrence giving rise to the claim.
Finally, since no allegations were made that any damage claim was filed, all claims
pursuant to state law are time barred.
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5.
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claims. Cal. Civ. Proc. Code 335.1. Further, section 1983, 1985, and 1986 claims
must be filed within the time specified by the states statute of limitations for
personal injury torts. Usher v. Los Angeles, 828 F.2d 556, 558 (9th Cir. 1987).
Finally, the court held that malicious prosecution has a 2-year statute of limitations.
Stavropoulos v. Superior Court of the Los Angeles County, 141 Cal. App.4th 190
(2006). The Court in Stavropoulos held that the malicious prosecution cause of
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action accrues at the time of entry of judgment in the underlying action in the trial
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court.
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Here, it appears that all of Plaintiffs claims against the City Defendants
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emanate from the underlying criminal action in state court whereby Plaintiff was
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convicted and imprisoned. Plaintiff alleges in the FAC that following a series of
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imprisoned. At the latest, the statute began to accrue on March 1, 2011. Plaintiffs
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Complaint was not filed until August 20, 2013, well beyond the expiration of the 2
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substantiated or properly pled within the FAC. Therefore, all the claims against the
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6.
Section 1983 by itself does not establish or create any substantive rights.
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[O]ne cannot go into court and claim a violation of section 1983 for section
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1983 by itself does not protect anyone against anything. Chapman v. Houston
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Welfare Rights Organization, 441 U.S. 600, 617 (1979). Rather, Section 1983
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provides a cause of action against state and local officials who, acting within the
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Section 1983 does not permit collateral attacks on prior criminal proceedings
or judgments. In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held:
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even to those claims challenging the validity of a particular procedure but not
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directly attacking a conviction, sentence, or its result, since it is often the case that
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the nature of the challenge to the procedures could be such as necessarily to imply
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the invalidity of the judgment. Edwards v. Balisok, 520 U.S. 641, 645 (1997).
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Here, based on Heck v. Humphrey, supra, Plaintiffs 1983 claims against the
City Defendants are barred and should be dismissed.
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must allege each element with particularity. Sherman v. Yakahi, 549 F.2d 1287,
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1290 (9th Cir. 1977); Soto v. Schembri, 960 F. Supp. 751, 760 (S.D.N.Y. 1997).
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This includes an express or implied agreement among the defendants, and actual
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Chicago Miracle Temple Church, Inc. v. Fox, 901 F. Supp. 1333, 1347 (N.D. Ill.
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Section 1985 (2) relates to obstructing justice in federal courts, and section
1985 (3) relates to deprivation of equal protection. These are equally inapplicable
here. None of these claims were plead with particularity in the FAC and instead
v. Breckenridge, 403 U.S. 88, 102 (1971), clearly held that a section 1985(3)
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action required, that there must be some racial, or perhaps otherwise class-
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Hosp., 562 F. Supp. 1259, 1282 (W.D. Pa. 1983) (emphasis added). A dismissal
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of the section 1985(3) claims for failure to allege or show some racial or other
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held to be proper. Mears v. Town of Oxford, Md., 762 F.2d 368, 374 (4th r. 1985).
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Finally, Section 1986 authorizes a remedy against state actors who have
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Cerrato v. S.F. Cmty. Coll. Dist., 26 F.3d 968, 971 n.7 (9th Cir. 1994). Since the
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FAC fails to state a claim under section 1985, then any claim under section 1986
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cannot be sustained.
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CONCLUSION
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Based on the foregoing, and pursuant to the City Defendants joinder in the
Omnibus Motion to Dismiss and joinder in the County of San Diegos Motion to
Dismiss (III, V, VI, VII, VIII, IX, and XI), it is respectfully requested that the First
Amended Complaint be dismissed without leave to amend as to the City of San
Diego, Jan Goldsmith, and Emily Garson (City Defendants).
Dated: April 11, 2014
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Document Number: 762965
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