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JAN I. GOLDSMITH, City Attorney

DANIEL F. BAMBERG, Assistant City Attorney
RAYNA A. STEPHAN, Deputy City Attorney
California State Bar No. 135001
Office of the City Attorney
1200 Third Avenue, Suite 1100
San Diego, California 92101-4100
Telephone: (619) 533-5800
Facsimile: (619) 533-5856
Attorneys for Defendants CITY OF SAN DIEGO,
JAN GOLDSMITH AND EMILY GARSON

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

CALIFORNIA COALITION FOR

11 FAMILIES AND CHILDREN, A

DELAWARE PUBLIC BENEFIT

12 CORPORATION, AND COLBERN C.

STUART, AN INDIVIDUAL,

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Plaintiffs

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v.
SAN DIEGO COUNTY BAR

16 ASSOCIATION, ET AL.,

Defendants.

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

DEFENDANTS CITY OF SAN
DIEGO, JAN GOLDSMITH AND
EMILY GARSONS JOINDER
AND SUPPLEMENT TO
OMNIBUS MOTION TO
DISMISS PLAINTIFFS FIRST
AMENDED COMPLAINT
[FED.R.CIV.P.8(a), 8(e), 9(b),
12(b) (1), 12(b)(6) AND 41(b)]
Date: June 6, 2014
Time: 2:00 p.m.
Judge: Cathy Ann Bencivengo
Court Room: 4C
Trial: Not Set
NO ORAL ARGUMENT UNLESS
REQUESTED BY COURT

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Defendants City of San Diego, Jan Goldsmith and Emily Garson

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

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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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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.

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

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

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772 (9th Cir. 2012).

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

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

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Union High Sch., 343 F.3d 1036, 1039 n. 2 (9th Cir.2003)

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

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

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Feldman doctrine in dismissing claims against non-judicial defendants brought

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

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conspiracy which occurred in the underlying State court custody proceedings.

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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

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.

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

was wronged through the alleged prosecutorial misconduct and malicious

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

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jurisdiction to essentially retry Plaintiff Stuarts state court criminal case.

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B.

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The federal common law litigation privilege precludes Plaintiffs lawsuit

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

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Litigation Privilege

Whether the government attorney is representing the plaintiff or the

defendant, or is conducting a civil trial, criminal prosecution or an
agency 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 statement
in Flood that [t]he reasons supporting the doctrine of absolute
immunity apply with equal force regardless of the nature of the
underlying action. 532 F.2d at 1251 (citation omitted). If the
government attorney is performing acts intimately associated with
the judicial phase of the litigation, that attorney is entitled to
absolute 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 City Attorney 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

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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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absolute immunity of prosecuting officers was held equally applicable to civil

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

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

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

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

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

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

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evidence. Id. California courts construe [Government Code] section 821.6

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broadly in furtherance of its purpose to protect public employees in the

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performance of their prosecutorial duties from the threat of harassment through

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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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Prosecution, Obstruction of Justice and Prosecutorial Misconduct claims should be

dismissed.

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Any claim in the FAC regarding lack of supervision should fail, if based on

THERE IS NO SUPERVISORY LIABILITY

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).

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

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

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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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Attorneys conduct and the violation.

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

THERE IS NO ENTITY LIABILITY

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

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

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

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

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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

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.

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PLAINTIFFS STATE LAW CLAIMS ARE TIME BARRED

FOR FAILURE TO FILE A TIMELY CLAIM

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.

PLAINTIFFS STATE AND FEDERAL CLAIMS ARE BARRED

BY THE STATUTE OF LIMITATIONS

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

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

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

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

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City Defendants are barred by the stature of limitations.

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6.

PLAINTIFFS 1983 CLAIMS ARE BARRED BY HECK V.

HUMPHREY

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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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. In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held:

In order to recover damages for allegedly unconstitutional

conviction or imprisonment, or for other harm caused by
actions whose unlawfulness could render a conviction or
sentence invalid, a 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state
tribunal authorized to make such a determination, or
called into questions by a writ of habeas corpus. A claim
for damages bearing that relationship to a conviction or
sentence that has not been so invalidated is not cognizable
under section 1983.

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

The Supreme Court has held that the threshold requirements of Heck apply

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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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Claims potentially barred by Heck include wrongful arrest, false imprisonment,

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

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

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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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PLAINTIFFS FAILED TO PLEAD CLAIMS UNDER 1985

AND 1986

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

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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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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.

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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)

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

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based invidiously discriminatory animus behind the conspirators action.

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

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

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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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class-based discriminatory animus behind the alleged conspirators actions was

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

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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

JAN I. GOLDSMITH, City Attorney

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By /s/ Rayna A. Stephan

Rayna A. Stephan
Deputy City Attorney

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Attorneys for Defendants

CITY OF SAN DIEGO, JAN
GOLDSMITH, AND EMILY
GARSON
RStephan@sandiego.gov

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Document Number: 762965

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