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Document Number: 762965 1Case No. 3:13-CV-1944 CAB BLM

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JAN I. GOLDSMITH, City AttorneyDANIEL F. BAMBERG, Assistant City AttorneyRAYNA A. STEPHAN, Deputy City AttorneyCalifornia State Bar No. 135001

Office of the City Attorney1200 Third Avenue, Suite 1100

San Diego, California 92101-4100Telephone: (619) 533-5800Facsimile: (619) 533-5856

Attorneys for Defendants CITY OF SAN DIEGO,JAN GOLDSMITH AND EMILY GARSON

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

CALIFORNIA COALITION FORFAMILIES AND CHILDREN, ADELAWARE PUBLIC BENEFITCORPORATION, AND COLBERN C.STUART, AN INDIVIDUAL,

Plaintiffs

v.

SAN DIEGO COUNTY BARASSOCIATION, ET AL.,

Defendants.

))))))))))))))))))))

Case No. 3:13-CV-1944 CAB BLM

DEFENDANTS CITY OF SANDIEGO, JAN GOLDSMITH ANDEMILY GARSONS JOINDERAND SUPPLEMENT TOOMNIBUS MOTION TODISMISS PLAINTIFFS FIRSTAMENDED COMPLAINT[FED.R.CIV.P.8(a), 8(e), 9(b),12(b) (1), 12(b)(6) AND 41(b)]

Date: June 6, 2014Time: 2:00 p.m.Judge: Cathy Ann BencivengoCourt Room: 4CTrial: Not Set

NO ORAL ARGUMENT UNLESSREQUESTED BY COURT

Defendants City of San Diego, Jan Goldsmith and Emily Garson

(City Defendants) respectfully submit this Joinder to Omnibus Motion to Dismiss,

Joinder to the County of San Diegos Motion to Dismiss (III, V, VI, VII, VIII, IX,

and XI), and Supplement to Omnibus Motion to Dismiss First Amended Complaint.

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Case 3:13-cv-01944-CAB-BLM Document 151 Filed 04/11/14 Page 1 of 10

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DISCUSSION

1. MALICIOUS PROSECUTION/PROSECUTORIAL IMMUNITY

A.

The Rooker-Feldman Doctrine

Plaintiff Stuart alleges that he is the victim of malicious prosecution and

prosecutorial misconduct by the City Defendants who conspired with other private

individual/entity defendants. However, the FAC is nothing more than

incomprehensible ramblings and conclusory allegations because Plaintiff Stuart is

disgruntled over his prior arrests, convictions in state court and ensuing prison

sentences. Plaintiff Stuart is barred from reframing his state court litigation here.

This Court is without jurisdiction, as instructed by the Rooker-Feldman doctrine, to

hear direct appeals from prior state court judgments. Cooper v. Ramos, 704 F.3d

772 (9thCir. 2012).

Plaintiffs purported claims for relief against the City Defendants fail as

insufficient facts have been pled under a cognizable theory and because there is a

lack of subject matter jurisdiction. Rule 12(b)(1) permits a defendant to move to

dismiss an action for lack of subject matter jurisdiction. See Savage v. Glendale

Union High Sch., 343 F.3d 1036, 1039 n. 2 (9th

Cir.2003)

In Thompson v. Santa Cruz Cnty. Human Servs. Dept, 12-CV-03894-LHK,

2013 WL 1750960 (N.D. Cal. Apr. 23, 2013), the Court applied the Rooker-

Feldman doctrine in dismissing claims against non-judicial defendants brought

under 42 USC 1983, 1985, and 1986 for alleged misconduct including

conspiracy which occurred in the underlying State court custody proceedings.

The Ninth Circuits decision in Cooper v. Ramos, 704 F.3d 772 (9th Cir.

2012), illustrated the application of this doctrine. In Cooperthe Plaintiff brought a

1983 conspiracy claim alleging that, in violation of his substantive due process

rights, various public officials conspired to tamper with and falsify evidence during

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 theRooker-Feldmandoctrine as

Plaintiffs Federal claim could only be established by proving an agreement to

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

allegations were speculative and unsupported.

Here, as in Cooper, Plaintiff Stuart should be barred from claiming that he

was wronged through the alleged prosecutorial misconduct and malicious

prosecution committed by the City Defendants, as this Court lacks subject matter

jurisdiction to essentially retry Plaintiff Stuarts state court criminal case.

B. Litigation Privilege

The federal common law litigation privilege precludes Plaintiffs lawsuit

against the City Defendants. The foundation for this privilege and immunity from

suit is founded upon the holding of Fry v. Melaragno, 939 F.2d 832, 837 (9th Cir.

1991). In Fry, the privilege was described as:

Whether the government attorney is representing the plaintiff or the

defendant, or is conducting a civil trial, criminal prosecution or anagency hearing, absolute immunity is necessary to assure that ...

advocates ... can perform their respective functions without

harassment or intimidation.Butz, 438 U.S. at 512, 98 S.Ct. at 2913.

Given the similarity of functions of government attorneys in civil,criminal and agency proceedings, and the numerous checks on abuses

of authority inherent in the judicial process, we reiterate our statementin Floodthat [t]he reasons supporting the doctrine of absolute

immunity apply with equal force regardless of the nature of theunderlying action. 532 F.2d at 1251 (citation omitted). If thegovernment attorney is performing acts intimately associated with

the judicial phase of the litigation, that attorney is entitled toabsolute immunity from damage liability (emphasis added).

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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 CityAttorney Jan Goldsmith and Emily Garson, it is

reasonable to infer that this action is brought against them for some act or acts

within the scope of their prosecutorial functions in initiating, pursuing or in

presenting a criminal prosecution against Plaintiff. However, officials performing

prosecutorial functions are entitled to absolute immunity from damages liability

because their function is integral to the judicial process. Imbler v. Pachtman, 424

U.S. 409, 96 S. Ct. 984, (1976). Further, inImbler, supra, the Court held that

absolute immunity of prosecuting officers was held equally applicable to civil

rights suits for damages under 42 U.S.C. 1983. Therefore, given the prosecutorial

immunity afforded to the City Defendants, Plaintiffs claims within the FAC related

to violations under 42 U.S.C. 1983, should be equally dismissed.

Additionally, California Government Code section 821.6 provides: [a]

public employee is not liable for injury caused by his instituting or prosecuting any

judicial or administrative proceeding within the scope of his employment, even if

he acts maliciously and without probable cause. This immunity applies to a

public prosecutor. Miller v. Filter, 150 Cal. App. 4th 652, 666 (2007). This

immunity is also absolute, applying even if the prosecutor acts maliciously and

without probable cause [citation omitted] such as by concealing exculpatory

evidence. Id.California courts construe [Government Code] section 821.6broadly in furtherance of its purpose to protect public employees in the

performance of their prosecutorial duties from the threat of harassment through

civil suits. Gillan v. City of San Marino, 147 Cal. App. 4th 1033, 1048 (2007).

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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Prosecution, Obstruction of Justice and Prosecutorial Misconduct claims should be

dismissed.

2. THERE IS NO SUPERVISORY LIABILITY

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

tort liability against a public entity or its employees should be based on an

authorizing statute. Negligent hiring, training, and supervision is not a cognizable

statutory based theory of recovery. Searcy v. Hemet Unified Sch. Dist., 177 Cal.

App. 3d 792, 802 (1986); Cal. Govt Code section 815(a).

Additionally, a supervisor is not liable under 1983 unless there exists either

(1) his or her personal involvement in the constitutional deprivation, or (2) a

sufficient causal connection between the supervisors wrongful conduct and the

constitutional violation.Hansen v. Black, 885 F.2d 642 645-646 (9thCir. 1989)

Here, there are no allegations regarding the City Attorneys personal involvement

in the prosecution of Plaintiff Stuart, or any causal connection between the City

Attorneys conduct and the violation.

3. THERE IS NO ENTITY LIABILITY

Plaintiff does not plead, independently, any facts to warrant liability against

the City. Any allusion to entity liability by this Plaintiff is dependent upon the

liability of the individual City employees. As demonstrated above, there is no claim

stated against the individual defendants. Therefore, no claim should stand against

the City. Monell v. Dep't of Soc. Servs. Of City of New York, 436 U.S. 658 (1978).

Further, Plaintiff has also failed to plead the elements of entity liability underMonell. Plaintiff failed to allege facts showing that one of the municipalitys

policies or customs directed the commission of a constitutional violation.Monell,

supra at 690-691. Evidence of a single, isolated or sporadic incident is an

insufficient basis for aMonellclaim. Trevino v. Gates, 99 F.3d 911, 918 (9th

Cir.1996); seeStanley 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

constitutional violations committed by any of its officers or employees.Monell,

supra at 691, 694. Therefore, Plaintiffs claims for Municipal Liability against

Defendant City of San Diego should be dismissed.

4. PLAINTIFFS STATE LAW CLAIMS ARE TIME BARREDFOR FAILURE TO FILE A TIMELY CLAIM

With respect to the claims under state law, Plaintiffs failed to present a claim

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

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, suchas Section 1983. SeeDonovan 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. PLAINTIFFS STATE AND FEDERAL CLAIMS ARE BARRED

BY THE STATUTE OF LIMITATIONS

California law prescribes a 2-year statute of limitations for personal injury

claims. Cal. Civ. Proc. Code 335.1. Further, section 1983, 1985, and 1986 claimsmust 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 (9thCir. 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.4th190

(2006). The Court in Stavropoulosheld that the malicious prosecution cause of

action accrues at the time of entry of judgment in the underlying action in the trial

court.

Here, it appears that all of Plaintiffs claims against the City Defendants

emanate from the underlying criminal action in state court whereby Plaintiff was

convicted and imprisoned. Plaintiff alleges in the FAC that following a series of

alleged prosecutorial misconduct, he was sentenced on March 1, 2011, and falsely

imprisoned. At the latest, the statute began to accrue on March 1, 2011. Plaintiffs

Complaint was not filed until August 20, 2013, well beyond the expiration of the 2

year statute of limitations. Any allegations by Plaintiff of equitable tolling is not

substantiated or properly pled within the FAC. Therefore, all the claims against the

City Defendants are barred by the stature of limitations.

6. PLAINTIFFS 1983 CLAIMS ARE BARRED BYHECK V.

HUMPHREY

Section 1983 by itself does not establish or create any substantive rights.

[O]ne cannot go into court and claim a violation of section 1983 for section

1983 by itself does not protect anyone against anything. Chapman v. Houston

Welfare Rights Organization, 441 U.S. 600, 617 (1979). Rather, Section 1983

provides a cause of action against state and local officials who, acting within the

scope of their duties, have deprived an individual of any rights, privileges, or


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immunities guaranteed by the United States Constitution or other federal laws. 42

U.S.C. 1983;Baker v. McCollan, 443 U.S. 137, 140 (1979).

Section 1983 does not permit collateral attacks on prior criminal proceedings

or judgments. InHeck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held:

In order to recover damages for allegedly unconstitutionalconviction or imprisonment, or for other harm caused byactions whose unlawfulness could render a conviction orsentence invalid, a 1983 plaintiff must prove that theconviction or sentence has been reversed on direct appeal,expunged by executive order, declared invalid by a statetribunal authorized to make such a determination, orcalled into questions by a writ of habeas corpus. A claimfor damages bearing that relationship to a conviction orsentence that hasnotbeen so invalidated is not cognizableunder section 1983.

Id.at 486-487 (citations omitted) (emphasis in original).

The Supreme Court has held that the threshold requirements ofHeckapply

even to those claims challenging the validity of a particular procedure but not

directly attacking a conviction, sentence, or its result, since it is often the case that

the nature of the challenge to the procedures could be such as necessarily to imply

the invalidity of the judgment. Edwards v. Balisok, 520 U.S. 641, 645 (1997).

Claims potentially barred byHeckinclude wrongful arrest, false imprisonment,

malicious prosecution and conspiracy to bring false charges. Guerrero v. Gates,

442 F.3d 697, 703 (9th Cir. 2006).

Here, based onHeck v. Humphrey, supra, Plaintiffs 1983 claims against the

City Defendants are barred and should be dismissed.

6. PLAINTIFFS FAILED TO PLEAD CLAIMS UNDER 1985

AND 1986

In order to successfully state a section 1985 conspiracy claim, a plaintiff

must allege each element with particularity. Sherman v. Yakahi, 549 F.2d 1287,

1290 (9thCir. 1977); Soto v. Schembri, 960 F. Supp. 751, 760 (S.D.N.Y. 1997).

This includes an express or implied agreement among the defendants, and actual

deprivation of rights in the form of overt acts in furtherance of the agreement.


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Chicago Miracle Temple Church, Inc. v. Fox, 901 F. Supp. 1333, 1347 (N.D. Ill.

1995). The FAC fails to state a claim under section 1985.

Section 1985(1) prevents a federal officer from performing duties. This

section is inapplicable as Plaintiff Stuart was not a federal officer.

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

include conclusory allegations. In addition, the Supreme Court in Griffin

v. Breckenridge, 403 U.S. 88, 102 (1971), clearly held that a section 1985(3)

action required, that there must be some racial, or perhaps otherwise class-

based invidiously discriminatory animus behind the conspirators action.

Without question, allegations and proof of invidious discrimination motivation is a

required element of a cause of action under section 1985(3). Miller v. Indiana

Hosp., 562 F. Supp. 1259, 1282 (W.D. Pa. 1983) (emphasis added). A dismissal

of the section 1985(3) claims for failure to allege or show some racial or other

class-based discriminatory animus behind the alleged conspirators actions was

held to be proper. Mears v. Town of Oxford, Md., 762 F.2d 368, 374 (4thr. 1985).

Finally, Section 1986 authorizes a remedy against state actors who have

negligently failed to prevent a conspiracy that would be actionable under 1985.

Cerrato v. S.F. Cmty. Coll. Dist.,26 F.3d 968, 971 n.7 (9thCir. 1994). Since the

FAC fails to state a claim under section 1985, then any claim under section 1986

cannot be sustained.

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CONCLUSION

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 JAN I. GOLDSMITH, City Attorney

B s/ Ra na A. Ste hanRa na A. Ste hanDe ut Cit Attorne

Attorneys for DefendantsCITY OF SAN DIEGO, JANGOLDSMITH, AND EMILYGARSONRSte han sandie o. ov


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