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Case 5:17-cv-03385-SVK Document 42 Filed 02/05/18 Page 1 of 13

1 CHARLES J. McKEE, SBN 152458


County Counsel
2 WILLIAM L. LITT, SBN 166614
Deputy County Counsel
3 County of Monterey
168 West Alisal Street, Third Floor
4 Salinas, California 93901-2653
Telephone: (831) 755-5045
5 Facsimile: (831) 755-5283
Email: Littw@co.monterey.ca.us
6

7 Attorneys for Defendant DEAN FLIPPO

9 UNITED STATES DISTRICT COURT

10 NORTHERN DISTRICT OF CALIFORNIA

11

12

13 STACY LININGER, CASE NO. 5:17-cv-03385-SVK


14 Plaintiff, DEFENDANT DEAN FLIPPO’S
NOTICE OF MOTION AND MOTION
15 vs. TO DISMISS AMENDED
COMPLAINT PURSUANT TO FRCP
16 RULE 12(b)(6); MEMORANDUM OF
RONALD PFLEGER, CITY OF POINTS AND AUTHORITIES
17 CARMEL, DEAN FLIPPO, District
Attorney of Monterey County California, Hearing Date: March 20, 2018
18 and DOES 1-50, Time: 10:00 a.m.
Courtroom: 6 (4th Floor)
19 Defendants.
20

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Stacy Lininger v. Ronald Pfleger, et al. CASE NO. 5:17-CV-03385-SVK
Rule 12(b)(6) Motion to Dismiss Plaintiff’s Amended Complaint
Case 5:17-cv-03385-SVK Document 42 Filed 02/05/18 Page 2 of 13

1 TABLE OF CONTENTS
2 Page
3 Table of Authorities ........................................................................................................................ ii

4 NOTICE OF MOTION AND MOTION TO DISMISS AMENDED COMPLAINT


PURSUANT TO FRCP 12(b)(6) .....................................................................................................1
5
MEMORANDUM OF POINTS AND AUTHORITIES .................................................................1
6
I. INTRODUCTION ...............................................................................................................1
7
II. STATEMENT OF FACTS ..................................................................................................2
8
III. THE AMENDED COMPLAINT SHOULD BE DISMISSED PURSUANT TO
9 RULE 12(b)(6) .....................................................................................................................4

10 A. The Purpose and Application of Rule 12(b)(6)........................................................4

11 B. No Article III Case or Controversy is Before the Court, and


Plaintiff is Not Facing Immediate and Irreparable Harm ........................................5
12
IV. CONCLUSION ....................................................................................................................9
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Stacy Lininger v. Ronald Pfleger, et al. CASE NO. 5:17-CV-03385-SVK
Rule 12(b)(6) Motion to Dismiss Plaintiff’s Complaint
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1 TABLE OF AUTHORITIES
2 Page
Cases
3
Adams v. Johnson (9th Cir. 2004) 355 F.3d 1179 ............................................................................5
4
Ashcroft v. Iqbal (2009) 556 U.S. 662 (2009) .................................................................................5
5
Baker v. Carr (1962) 369 U.S. 186 (1962) ......................................................................................6
6
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)........................................................................5
7
Fayer v. Vaughn (9th Cir. 2011) 649 F.3d 1061 ...............................................................................5
8
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 185 (2000) ......................6
9
Golden v. Zwickler (1969) 394 U.S. 103 .........................................................................................8
10
Harrington v. Almy (1st Cir. 1992) 977 F.2d 37...............................................................................9
11
Johnson v. Riverside Healthcare System (9th Cir. 2008) 534 F.3d 1116 .........................................4
12
Los Angeles v. Lyons (1983) 461 U.S. 95 ................................................................................6, 7, 8
13
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) ..............................................................6
14
Manzarek v. St. Paul Fire & Marine Ins. Co. (9th Cir. 2008) 519 F.3d 1025 ..................................5
15
Maryland Casualty Co. v. Pacific Coal & Oil Co. (1941) 312 U.S. 270 ........................................8
16
Massachusetts v. Mellon (1923) 262 U.S. 447 ................................................................................8
17
Navarro v. Block (9th Cir. 2001) 250 F.3d 729 ................................................................................4
18
Neitzke v. Williams (1989) 490 U.S. 319 .........................................................................................4
19
O’Shea v. Littleton, 414 U.S. 488, 495–496 (1974) .......................................................................6
20
Plum Creek Timber Co. v. Trout Unlimited (D. Idaho 2003) 255 F. Supp. 2d 1159 ......................6
21
Public Workers v. Mitchell (1947) 330 U.S. 75 ...............................................................................8
22
San Diego County Gun Rights Comm. V. Reno (9th Cir. 1996) 98 F.3d 1121 .................................7
23
Schwarz v. United States (9th Cir. 2000) 234 F.3d 428 ....................................................................5
24
W. Mining Council v. Watt (9th Cir. 1981) 643 F.2d 618.................................................................5
25
Younger v. Harris, (1971) 401 U.S. 37 ............................................................................................8
26

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Rule 12(b)(6) Motion to Dismiss Plaintiff’s Complaint
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1 Statutes
2 Federal Rules of Civil Procedure
Rule 12(b)(6) ................................................................................................................1, 4, 5
3
42 U.S.C.
4 Section 1983.................................................................................................................4, 6, 7

5 United States Constitution


Article III .....................................................................................................................1, 2, 5
6 Fourth Amendment ..............................................................................................................7

7 California Penal Code


Section 653m(a) ...................................................................................................................2
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Rule 12(b)(6) Motion to Dismiss Plaintiff’s Complaint
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1 NOTICE OF MOTION AND MOTION TO DISMISS


2 AMENDED COMPLAINT PURSUANT TO FRCP 12(b)(6)
3 TO: PLAINTIFF STACY LININGER AND HER COUNSEL OF RECORD:
4 PLEASE TAKE NOTICE that on Tuesday, March 20, 2018, at 10:00 a.m., or as soon
5 thereafter as the matter can be heard in the courtroom of United States Magistrate Judge Susan

6 van Keulen, U.S. District Court for the Northern District of California, Courtroom 6, 4th Floor,
7 280 South First Street, San Jose, California, Defendant DISTRICT ATTORNEY DEAN
8 FLIPPO (“Defendant” or “Mr. Flippo”) will move the Court for dismissal of the Amended

9 Complaint of Plaintiff STACY LININGER (“Plaintiff” or “Ms. Lininger”) pursuant to Federal

10 Rules of Civil Procedure (FRCP) Rule 12(b)(6).

11 Defendant’s motion is made on the following grounds and as more fully set forth in the

12 memorandum of points and authorities, filed herewith:

13 1. Plaintiff’s Amended Complaint fails to state a cause of action or

14 cognizable legal claim for which relief can be granted. FRCP Rule 12(b)(6).

15 2. No Article III case or controversy is before the Court, and Plaintiff does not face a

16 real and immediate threat of harm that would justify prospective relief.

17 Defendant’s motion is based on this notice of motion and motion, on the following

18 memorandum of points and authorities filed in support of this motion, on all the pleadings and
19 papers in this action, on Defendant’s request for judicial notice, and on any oral argument

20 entertained by the Court during the hearing on this matter.

21 POINTS AND AUTHORITIES


22 I. INTRODUCTION
23 Plaintiff Stacy Lininger seeks in her Amended Complaint (“AC”) to obtain, “injunctive

24 or other prospective relief as to defendant Dean Flippo, District Attorney of Monterey County,

25 against the prosecution of persons for the exercise of their constitutional rights.” AC at 20:17-

26 19. The AC suffers from the same fatal defects that resulted in the dismissal of Plaintiff’s

27 original Complaint. It fails to state a cause of action for which injunctive or other prospective

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Rule 12(b)(6) Motion to Dismiss Plaintiff’s Amended Complaint
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1 relief can be granted. No Article III case or controversy exists, and no injunction may issue,

2 because Plaintiff does not face a real and immediate threat of harm. She has not been prosecuted

3 or threatened with prosecution by any District Attorney since the dismissal of the criminal

4 charges against her.

5 Even if Plaintiff actually believes she has been chilled in the exercise of her First

6 Amendment rights, the cases are clear that federal courts are not to assume a recurrence of the

7 alleged interference with constitutional rights by government actors. The leading cases in this

8 regard deal with injunctions against police officers. The argument is even more compelling,

9 however, when a litigant asks a federal court to prospectively control how a state prosecutor

10 determines which cases to prosecute. In this context, injunctive relief is only available in truly

11 extraordinary cases, because interference by a federal court in state prosecutorial functions

12 compromises core values of comity, federalism, and separation of powers.

13 II. STATEMENT OF FACTS


14 On August 5, 2013, Plaintiff Stacy Lininger was charged with violation of Penal Code §

15 653m(a), which states:

16 “(a) Every person who, with intent to annoy, telephones or makes contact by

17 means of an electronic communication device with another and addresses to or

18 about the other person any obscene language or addresses to the other person any

19 threat to inflict injury to the person or property of the person addressed or any

20 member of his or her family, is guilty of a misdemeanor. Nothing in this

21 subdivision shall apply to telephone calls or electronic contacts made in good

22 faith.”

23 Cal. Penal Code § 653m(a). On January 24, 2014, Plaintiff pled nolo contendere to the charge,

24 and was placed on conditional probation. See Minute Order in Monterey County Superior Court

25 Case No. MS317393 dated January 24, 2014, filed herewith as Exhibit A, and which is the
26 subject of a Request for Judicial Notice filed herewith. The terms of probation include the

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1 following: “Do not annoy, harass, or dial 911 without a true, valid, and legitimate emergency.

2 Further, do not dial 911 repeatedly.” Ex. A at p. 2.


3 Between Friday, June 26, 2015, and Sunday, June 28, 2015, Ms. Lininger made

4 approximately 18-20 calls to the City of Carmel, California (“Carmel”) Police Department. See

5 Ruling in Monterey County Superior Court Case No. MS317393A, dated January 18, 2017, filed

6 herewith as Exhibit B, and which is the subject of a Request for Judicial Notice filed herewith,
7 at p. 3. The calls were to the Police Department’s non-emergency number, but nonetheless were

8 answered by the same individuals who answer Carmel’s 911 calls. Id. at p. 3. For the most part

9 the calls concerned a report Ms. Lininger had made months earlier about allegations by a male

10 minor student in a tobacco education class she taught that a Carmel police officer had touched

11 the minor inappropriately. Ibid. However, the tenor of the calls varied. At one point Ms.

12 Lininger referred to a Carmel Community Service Officer as a “bitch,” and a Carmel dispatcher

13 later testified in court that she felt intimidated by Ms. Lininger’s questions to her regarding

14 whether the dispatcher had any children and how she would feel if one of them was harmed. Id.

15 at p. 3-4.

16 On or about June 27, 2015, Ms. Lininger made approximately ten calls to the Seaside,

17 California Police Department. In the calls, she complained about the Seaside Police Department

18 “gossiping” to the Carmel Police Department about her, asked to speak to the Chiefs of Police of

19 Seaside and Salinas, and asked about how to file a complaint against the Carmel Police

20 Department. Ex. B at p. 6.
21 Also in June of 2015, Ms. Lininger repeatedly called Victoria Wayner, Ms. Lininger’s

22 supervisor when Ms. Lininger had been a tobacco education instructor. Ms. Wayner testified

23 that Ms. Lininger had reported the alleged incident involving the male student to her in January

24 of 2015, and that Ms. Wayner believed no investigation was warranted based on the facts as she

25 understood them. Apparently unsatisfied with Ms. Wayner’s response, Ms. Lininger began

26 calling Ms. Wayner five to ten times per day “over several days” in June of 2015. The calls did

27 not cease until Ms. Wayner blocked Ms. Lininger’s number. Ex. B at 5.
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1 In response, the Monterey County District Attorney’s Office brought probation violation

2 charges against Ms. Lininger. In a 12-page Ruling issued on January 18, 2017, Monterey

3 County Superior Court Judge Vanessa W. Vallarta denied or found to be not true the petitions for

4 violation of probation, and accordingly dismissed them. Ex. B at p. 11. Ms. Lininger
5 subsequently brought the instant action pursuant to 42 U.S.C. § 1983.

6 Plaintiff Lininger attempts to portray herself as a civil rights crusader whom the District

7 Attorney attempted to punish for complaining about alleged police misconduct. In actuality, the

8 District Attorney’s Office charged Plaintiff with violating probation and, separately, with making

9 annoying, obscene, or threatening phone calls, because she made numerous phone calls in a short

10 period of time, in a manner that could fairly be characterized as annoying or harassing. The

11 sheer number of calls over a short period of time and the testimony regarding what Plaintiff said

12 demonstrate that Plaintiff was not merely a concerned individual lodging a complaint. Hundreds

13 of people call the relatively small Carmel Police Department every year; some, presumably,

14 complain about police officers; few if any engage in the disruptive course of conduct pursued by

15 Plaintiff. Plaintiff, moreover, should not be allowed to gloss over the fact that she made many of

16 the calls at issue to her former supervisor rather than to any law enforcement agency.

17 III. THE AMENDED COMPLAINT SHOULD BE DISMISSED WITHOUT LEAVE


18 PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE RULE 12(b)(6).
19 A. The Purpose and Application of Rule 12(b)(6)
20 The purpose of FRCP Rule 12(b)(6) is to permit trial courts to terminate lawsuits that are

21 fatally flawed in their legal premises and destined to fail, and thus to spare litigants the burdens

22 of unnecessary pretrial and trial activity. Neitzke v. Williams (1989) 490 U.S. 319, 326-27.

23 Under Rule 12(b)(6), a complaint may be dismissed because of the plaintiff’s failure to state a

24 claim on which relief can be granted. Fed. R. Civ. P. 12(b)(6). A dismissal under Rule 12(b)(6)

25 may be based on the lack of a cognizable legal theory or on the absence of sufficient facts

26 alleged under a cognizable legal theory. Johnson v. Riverside Healthcare System (9th Cir. 2008)

27 534 F.3d 1116, 1121; Navarro v. Block (9th Cir. 2001) 250 F.3d 729, 732. To survive a motion to

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1 dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.”

2 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The “facial plausibility” standard requires a

3 plaintiff to allege facts that demonstrate “more than a sheer possibility that a defendant has acted

4 unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662 (2009).

5 For purposes of ruling on a Rule 12(b)(6) motion, a court “accept[s] factual allegations in

6 the complaint as true and construe[s] the pleadings in the light most favorable to the non-moving

7 party.” Manzarek v. St. Paul Fire & Marine Ins. Co. (9th Cir. 2008) 519 F.3d 1025, 1031.

8 However, a court need not accept as true allegations contradicted by judicially noticeable facts

9 and “may consider documents that are referred to in the complaint whose authenticity no party

10 questions.” Schwarz v. United States (9th Cir. 2000) 234 F.3d 428, 435. A court likewise is not

11 required to “’assume the truth of legal conclusions merely because they are cast in the form of

12 factual allegations.’” Fayer v. Vaughn (9th Cir. 2011) 649 F.3d 1061, 1064 (per curiam)

13 (quoting W. Mining Council v. Watt (9th Cir. 1981) 643 F.2d 618, 624). Mere “conclusory

14 allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss.”

15 Adams v. Johnson (9th Cir. 2004) 355 F.3d 1179, 1183; accord Iqbal, supra, 556 U.S. at 678.

16 B. No Article III Case or Controversy is Before the Court, and Plaintiff is


17 Not Facing Immediate and Irreparable Harm.
18 Plaintiff seeks to enjoin Mr. Flippo and his subordinates from, “initiating or continuing

19 criminal prosecutions against persons who object to police action, criticize police action, seek

20 information from police, seek action from the police in the absence of documented evidence that

21 they actually physically interfered with the performance of official law enforcement duties.” AC

22 at 20:6-10. 1

23 The parole violation proceedings at issue in this case resulted from conduct in which

24 Plaintiff engaged in June of 2015. Ex. B at pp. 3-5. Plaintiff has not been charged with a
25

26 1
Plaintiff has, at least, clarified that she is not seeking damages from Mr. Flippo, sparing the
27 Court and the undersigned from reiterating the doctrine of absolute prosecutorial immunity.
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1 criminal offense by the Monterey County District Attorney’s Office for any subsequent conduct.

2 Plaintiff’s probation ended on January 24, 2016. Ex. A at p. 2. There are no plausible
3 allegations before this Court that any prosecutor threatened to file new charges against Plaintiff.

4 Plaintiff’s allegations in the AC concerning misunderstandings or miscommunications regarding

5 the date of the phone calls at issue do not constitute imminent threats to prosecute Plaintiff for

6 complaining about the police in the future.

7 “It goes without saying that those who seek to invoke the jurisdiction of the federal courts

8 must satisfy the threshold requirement imposed by Art. III of the Constitution by alleging an

9 actual case or controversy.” Los Angeles v. Lyons (1983) 461 U.S. 95, 101-102. A plaintiff must

10 demonstrate a “personal stake in the outcome” in order to “assure that concrete adverseness

11 which sharpens the presentation of issues” necessary for the proper resolution of constitutional

12 questions. Baker v. Carr (1962) 369 U.S. 186, 204 (1962). The case or controversy doctrine

13 also conserves scarce judicial resources. See, e.g., Plum Creek Timber Co. v. Trout Unlimited

14 (D. Idaho 2003) 255 F. Supp. 2d 1159, 1167 (“the Court is conserving judicial resources until the

15 parties are able to present an actual case and controversy for this Court to decide”).

16 Plaintiff bears the burden of alleging specific facts sufficient to establish standing. Lujan

17 v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). She also “must demonstrate standing

18 separately for each form of relief sought.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.,

19 Inc., 528 U.S. 167, 185 (2000). To have standing for injunctive relief under § 1983, a plaintiff

20 must allege that she is likely to suffer future injury from the alleged misconduct by the

21 defendants. See Lyons, supra, 461 U.S. at 105, 110. The reasonableness of a plaintiff’s

22 apprehension is dependent upon the likelihood of a recurrence of the allegedly unlawful conduct.

23 It is the reality of the threat of repeated injury that is relevant to the standing inquiry, not the

24 plaintiff’s subjective apprehensions. Id. at 107 n. 8. “Past exposure to illegal conduct does not in

25 itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any

26 continuing, present adverse effects.” O’Shea v. Littleton, 414 U.S. 488, 495–496 (1974).

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1 In Lyons, plaintiff alleged that he was stopped for a traffic violation and put into a choke

2 hold in violation of the First, Fourth, and Eighth Amendments. Id. at 98. The plaintiff brought

3 suit under § 1983 and sought injunctive relief to bar the City of Los Angeles from using “control

4 holds.” Id. at 98. The Court assessed the likelihood of future injury by evaluating whether the

5 plaintiff realistically was threatened with repetition of his interaction with the police. The Court

6 declined to assume that plaintiff would again violate the law, and hence find himself likely to be

7 placed in an illegal the chokehold at some point in the future. See id. at 107 n. 8. The Court

8 likewise found that the allegation that the police routinely apply chokeholds “falls far short of the

9 allegations that would be necessary to establish a case or controversy between these parties.” Id.

10 at 105. The Court also noted that five months passed between the date of the alleged incident and

11 the filing of plaintiff’s complaint, but there were no allegations of other encounters with the

12 police. Id. at 108. The Court emphasized “the need for a proper balance between state and

13 federal authority [which] counsels restraint in the issuance of injunctions against state officers

14 engaged in the administration of the states’ criminal laws in the absence of irreparable injury

15 which is both great and immediate.” Id. at 112. In balancing these concerns, the Court concluded

16 that plaintiff failed to demonstrate that he would be subjected to the alleged illegality again and

17 thus did not have standing to seek injunctive relief. Id. at 112-13.

18 Plaintiff’s purported fear of future prosecution is nothing more than rank speculation.

19 The Lyons decision is instructive in this regard. In Lyons, the Court held that the plaintiff lacked

20 standing to seek injunctive and declaratory relief because his complaint did “nothing to establish

21 a real and immediate threat that he would again be stopped for a traffic violation, or for any other

22 offense, by an officer or officers who would illegally choke him into unconsciousness without

23 any provocation or resistance on his part.” 461 U.S. at 105; see also San Diego County Gun

24 Rights Comm. v. Reno (9th Cir. 1996) 98 F.3d 1121, 1126 (stating that because the plaintiffs

25 sought “declaratory and injunctive relief only,” they were required to “show a very significant

26 possibility of future harm; it is insufficient for them to demonstrate only a past injury”). It bears

27 emphasis that over two-and-a-half years have elapsed since Plaintiff made the calls for which she

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1 was charged, and she has not been prosecuted or threatened with prosecution for any subsequent

2 conduct. Cf. Lyons, 461 U.S. at 108 (“We cannot agree that the ‘odds,’ 615 F.2d, at 1247, that

3 Lyons would not only again be stopped for a traffic violation but would also be subjected to a

4 chokehold without any provocation whatsoever are sufficient to make out a federal case for

5 equitable relief. We note that five months elapsed between October 6, 1976, and the filing of the

6 complaint, yet there was no allegation of further unfortunate encounters between Lyons and the

7 police.”)

8 It is worth noting, too, that the AC seeks an injunction against “initiating or continuing

9 criminal prosecutions against persons who object to police action, criticize police action, seek

10 information from police, seek action from the police . . .”. AC at 20:6-9 (emphasis added). Not

11 only does Plaintiff lack standing to seek injunctive relief in pending cases involving criminal

12 defendants who are not parties to this action, but such intervention by a federal court is precluded

13 by Younger v. Harris, (1971) 401 U.S. 37, and its progeny.

14 Whether the question is characterized as the ripeness of Plaintiff’s claims, her standing to

15 seek injunctive relief on behalf of unidentified criminal defendants in unspecified pending cases

16 or theoretical cases that have not yet been filed, or the highly speculative nature of Plaintiff’s

17 claims of future injury in retaliation for future – as yet unspoken – protected speech, federal

18 jurisprudence makes clear that “abstract injury is not enough.” Lyons, 461 U.S. at 101. For at

19 least the last century, it has been axiomatic that to obtain injunctive relief a plaintiff must

20 demonstrate that she “has sustained or is immediately in danger of sustaining some direct injury”

21 as the result of the challenged official conduct and the injury or threat of injury must be both

22 “real and immediate,” not “conjectural” or “hypothetical.” See, e. g., Golden v. Zwickler (1969)

23 394 U.S. 103, 109-110; Public Workers v. Mitchell (1947) 330 U.S. 75, 89-91; Maryland

24 Casualty Co. v. Pacific Coal & Oil Co. (1941) 312 U.S. 270, 273; Massachusetts v. Mellon

25 (1923) 262 U.S. 447, 488.

26 ///

27 ///

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1 IV. CONCLUSION
2 This is Plaintiff’s second attempt to plead her case for prospective relief with regard to

3 District Attorney Flippo. Between this Court’s dismissal of the original Complaint and today,

4 the law has not changed. Despite Plaintiff’s creative efforts to recast them, the facts likewise

5 have not changed. The bottom line is that Plaintiff will not face immediate and irreparable harm

6 in the absence of an injunction. Moreover, if such an injunction were to issue, it would put the

7 U.S. District Court in the business of monitoring a California district attorney’s office and

8 controlling which cases it can and cannot prosecute. Such a scenario would fly in the face of

9 hallowed principles of federalism, comity, and separation of powers. See, e.g. Harrington v.

10 Almy (1st Cir. 1992) 977 F.2d 37, 41 (“injunctive relief in this setting would do violence to

11 prosecutorial independence even more directly than would the prospect of a damage action.”)

12 Accordingly, Defendant Flippo respectfully requests that this Court grant his motion to dismiss

13 the AC, without leave to amend, as to Mr. Flippo and his subordinates.

14

15 Dated: February 5, 2018. CHARLES J. McKEE, COUNTY COUNSEL

16
By: /s/ William M. Litt
17
WILLIAM M. LITT
18 Deputy County Counsel
Attorneys for Defendant DEAN FLIPPO
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1 CHARLES J. McKEE, SBN 152458


County Counsel
2 WILLIAM M. LITT, SBN 166614
Deputy County Counsel
3 County of Monterey
168 West Alisal Street, Third Floor
4 Salinas, California 93901-2653
Telephone: (831) 755-5045
5 Facsimile: (831) 755-5283
Email: Littwm@co.monterey.ca.us
6

7 Attorneys for Defendant DEAN FLIPPO

9 UNITED STATES DISTRICT COURT

10 NORTHERN DISTRICT OF CALIFORNIA

11

12

13 STACY LININGER, CASE NO. 5:17-cv-03385-SVK


14 Plaintiff, DEFENDANT DEAN FLIPPO’S
REQUEST FOR JUDICIAL NOTICE IN
15 vs. SUPPORT OF FRCP 12(b)(6) MOTION
TO DISMISS AMENDED
16 COMPLAINT
RONALD PFLEGER, CITY OF
17 CARMEL, DEAN FLIPPO, District Hearing Date: March 20, 2018
Attorney of Monterey County California, Time: 10:00 a.m.
18 and DOES 1-50, Courtroom: 6 (4th Floor)
19 Defendants.
20

21 Defendant Dean Flippo, by and through his attorneys of record, hereby respectfully
22 requests the Court take judicial notice pursuant to Federal Rules of Evidence Rule 201(b) of
23 attached Exhibit “A,” Minute Order in Monterey County Superior Court Case No. MS317393
24 dated January 24, 2014, and Exhibit “B,” Ruling in Monterey County Superior Court Case No.
25 MS317393A, dated January 18, 2017, filed herewith in support of Defendant’s Motion to
26 Dismiss Plaintiff’s Amended Complaint in the above-captioned action. See Trigueros v. Adams
27 (9th Cir. Cal. 2011) 658 F.3d 983, 987 (“We retain discretion to take judicial notice of
28 1
Stacy Lininger v. Ronald Pfleger, et al. CASE NO. 5:17-CV-03385-SVK
RJN ISO Rule 12(b)(6) Motion to Dismiss Plaintiff’s Amended Complaint
Case 5:17-cv-03385-SVK Document 42-1 Filed 02/05/18 Page 2 of 19

1 documents ‘not subject to reasonable dispute.’ Fed. R. Evid. 201(b). In particular, we ‘may take

2 notice of proceedings in other courts, both within and without the federal judicial system, if those

3 proceedings have a direct relation to matters at issue.’”).

5 Respectfully submitted,

6 Dated: February 5, 2018. CHARLES J. McKEE, COUNTY COUNSEL

7
By: /s/ William M. Litt
8
WILLIAM M. LITT
9 Deputy County Counsel
Attorneys for Defendant DEAN FLIPPO
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28 2
Stacy Lininger v. Ronald Pfleger, et al. CASE NO. 5:17-CV-03385-SVK
RJN ISO Rule 12(b)(6) Motion to Dismiss Plaintiff’s Amended Complaint
Case 5:17-cv-03385-SVK Document 42-1 Filed 02/05/18 Page 3 of 19

UNITED STATES DISTRICT COURT


NORTHERN DISTRICT OF CALIFORNIA
San Jose Division

STACY LININGER, Plaintiff,

vs.

RONALD PFLEGER, CITY OF CARMEL, DEAN FLIPPO, District Attorney of


Monterey County California, and DOES 1-50, Defendants.

Case No: 5:17-CV-03385-SVK

REQUEST FOR JUDICIAL NOTICE


IN SUPPORT OF DEFENDANT DEAN FLIPPO’S
MOTION TO DISMISS AMENDED COMPLAINT [FRCP Rule 12(b)(6)]

EXHIBIT A
Case 5:17-cv-03385-SVK Document 42-1 Filed 02/05/18 Page 4 of 19

SUPERIOR COURT OF CALIFORNIA, COUNTY OF MONTEREY

The People of the State of California,

Plaintiff Hon. Robert A. Burlison

Clerk: Zachary Tugel

vs. CSR:

Recording No. 9:58:56

Lininger, Stacy Ann,

Defendant

Minutes: Arraignment: Complaint Case No. MS317393A

Courtroom 11

January 24, 2014

Charges:

1: PC653m(a) [Annoying Telephone Call:Obscene/Threatening] MISD

2: PC653m(a) [Annoying Telephone Call:Obscene/Threatening] MISD

3: PC653m(a) [Annoying Telephone Call:Obscene/Threatening] MISD

Nature of proceedings: Misdemeanor arraignment on complaint.

Deputy District Attorney Catherine Gardner appeared.

Defendant appeared without Counsel.

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Case 5:17-cv-03385-SVK Document 42-1 Filed 02/05/18 Page 5 of 19

The court informs Defendant of legal and Constitutional Rights.

Defendant informed of the charge(s) alleged.

Defendant requests appointment of Counsel.

Defendant's Financial Statement filed.

Request denied, Defendant not eligible for Public Defender.

Defendant advised of penalties as follows:

The maximum penalty for this offense is 0 year(s), 6 month(s), county jail as to each count.

The Defendant is advised of the possible fines and/or restitution associated with entering a plea of guilty or Nolo
Contendere.

Conviction of the offense may have the consequence of deportation.

Defendant advised that on entering a plea of guilty or Nolo Contendere that he would be giving up the following
rights: His privilege against self-incrimination, the right to jury trial to confrontation and cross-examination of the
witnesses against him, the right to be represented by Counsel. After questioning the Defendant the court finds
that he understood the nature of the charge and the possible range of penalties and other consequences of his
plea, including the effect of the admission of any prior convictions. The court finds that the Defendant understood
and knowingly, voluntarily and intelligently waived each of the above rights, and that there was a factual basis for
the plea.

Defendant orally states that he has read and understands the acknowledgement of waiver or rights form, and the
maximum, and minimum penalties form, which he has signed and is incorporated herein.

Defendant enters a plea of nolo contendere to counts 1 and 3.

Defendant waives time for sentencing.

Imposition of sentence suspended, and defendant placed on probation for a period of 2 yrs; 0 months; 0 days and
to obey all laws. Type of probation: Conditional.

Do not commit same or similar offense.

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Do not annoy, harass, or dial 911 without a true, valid, and legitimate emergency. Further, do not dial 911
repeatedly.

Pay restitution fine of $150.00 for the State Restitution Fund as directed by the Monterey County Revenue
Division (PC 1202.4(b)).

All remaining charges, enhancements and/or special allegations are hereby ordered dismissed/stricken pursuant
to PC 1385.

Defendant accepts probation.

Other orders of the court that are not conditions of probation:

An additional restitution fine in the amount of $150.00 (same as that assessed pursuant to PC 1202.4(b)) is
imposed, suspended, and not to be paid unless and until probation is revoked and not reinstated. (PC § 1202.44).

Pay a Court Operations Assessment of $40.00 per conviction for a total of $80.00. (PC 1465.8(a)(1))

Pay a Court Facilities Assessment of $30.00 per conviction for a total of $60.00. (GC 70373)

Unless otherwise stated, all fines, fees and victim restitution are to be paid as directed by the Monterey County
Revenue Division (located at 168 West Alisal St., 1st Floor, Salinas, CA 93901-2680.) You must contact the
Revenue Division within 7 days, or if in custody, within 7 days of release, and make arrangements to pay and pay
as directed by the Revenue Division.

//

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UNITED STATES DISTRICT COURT


NORTHERN DISTRICT OF CALIFORNIA
San Jose Division

STACY LININGER, Plaintiff,

vs.

RONALD PFLEGER, CITY OF CARMEL, DEAN FLIPPO, District Attorney of


Monterey County California, and DOES 1-50, Defendants.

Case No: 5:17-CV-03385-SVK

REQUEST FOR JUDICIAL NOTICE


IN SUPPORT OF DEFENDANT DEAN FLIPPO’S
MOTION TO DISMISS AMENDED COMPLAINT [FRCP Rule 12(b)(6)]

EXHIBIT B
Case 5:17-cv-03385-SVK Document 42-1 Filed 02/05/18 Page 8 of 19

SUPERIOR COURT OF CALIFORNIA, COUNTY OF MONTEREY

The People of the State of California,

Plaintiff Hon. Vanessa W. Vallarta

Clerk: May Gebin

vs. CSR:

Recording No. 1.37.39

Lininger, Stacy Ann,

Defendant

Minutes: Ruling Case No. MS317393A

revocation hearing Courtroom 10

January 18, 2017

Charges:

1: PC653m(a) [Annoying Telephone Call:Obscene/Threatening] MISD. Conviction: Nolo Plea

2: PC653m(a) [Annoying Telephone Call:Obscene/Threatening] MISD. Dismissal

3: PC653m(a) [Annoying Telephone Call:Obscene/Threatening] MISD. Conviction: Nolo Plea

Nature of proceedings: Ruling on Revocation hearing

Deputy District Attorney Catherine Gardner appeared for Robin Duffy.

Defendant appeared with Counsel Steven Andre.

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Revocation Hearing was held on the Petition for Revocation/Modification of Probation, filed on Monday, August
24, 2015, and Tuesday, September 13, 2016, alleging that Defendant violated certain conditions of the order
admitting to probation.

The court having heard all evidence presented rules as follows:

Introduction

The issue before the Court is whether defendant Stacy Ann Lininger violated the terms and conditions of her
probation imposed by the Court on January 24, 2014 (in Case No. MS317393) when less than two years later, she
made numerous phone calls to the Carmel Police Department, the Seaside Police Department and her supervisor
Victoria Wayner.

On January 24, 2014, defendant entered a plea of No Contest to two counts of violating Penal Code section
653m(a) – annoying telephone calls, that according to the complaint, were made to the Seaside Police Department
Dispatch and to County Communications. Defendant was placed on probation for two years, ordered to obey all
laws, not commit a similar offense and “not annoy, harass or dial 911 without a true, valid and legitimate
emergency.” She was also ordered to “not dial 911 repeatedly.” (Minute Order in Case No 317393 dated January
24, 2014.) Defendant entered the plea at arraignment, without the assistance of counsel.

On August 24, 2015, the People filed the first of two related Notices of Violation of Probation. The August 2015
Notice alleged defendant violated [Penal Code] Section “653m x2” on or about June 27, 2015 based on Case
MS333633A.

On September 13, 2016 (later amended to correct the year of the alleged violation), the People filed a second
Notice of Violation of Probation alleging the defendant failed to obey all laws and court orders and “called the
Seaside Police Department in excess of 20 times between 6/25/15 – 6/28/15.”

The Court held a revocation hearing December 5-6, 2016 and heard the argument of counsel on December 9,
2016, after which time the matter was taken under submission. Due to the unavailability of defense counsel on
December 19, 2016 the matter was continued for ruling to today.
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Factual Findings

During the two day hearing the Court heard the testimony of Tracy Cook, former Carmel Police Department (CPD)
dispatcher; Maureen Roddick, CPD dispatcher; Lisa Johnson, CPD Community Safety Officer and occasional
dispatcher; Ronald Pfleger, Sergeant, CPD; Reyna Alvarez, Custodian of Records, Monterey County Emergency
Communications; Victoria Wayner; and Stacy Lininger, the defendant. The witnesses authenticated various tape
recordings of interactions with the defendant that were also received into evidence (People’s Exhibits 1 and 2.)

Calls to the Carmel Police Department

Beginning on Friday, June 26, 2015 through Sunday, June 28, 2015, Ms. Lininger placed approximately 18-20
phone calls to the Carmel Police Department. The exact number is difficult to determine because of the recording
system used that appears to start a new recording following any pause. All of the calls by the defendant were
placed to the regular, “non-emergency” number for the Carmel Police Department, not 911. The Carmel Police
Department has its own 911 emergency communications system and does not use the Monterey County
Communications system. As a practical matter, this means all calls are handled by the same dispatch team,
apparently in the same office, although on different lines.

On Friday, June 26, 2015, veteran dispatcher Maureen Roddick fielded the first call from Ms. Lininger, at
approximately 8:31 AM in the morning. Ms. Lininger asked to speak with the Chief of Police. Defendant was
informed the Chief was not available and would call her back. Chief Calhoun did call back at about 4:20 PM in the
afternoon seeking more information about the “incident” referenced by the defendant. Ms. Lininger explained
that she had called to report “a child being touched inappropriately,” allegedly by an officer during a traffic stop,
which had come up during a tobacco education group session facilitated by Ms. Lininger. Ms. Lininger was not
able to provide the Chief any information regarding the name of the alleged victim, contact information of the
parent of alleged victim, date, time or place of the incident or who she spoke to at CPD to make the original
report. The Chief ended the call after about six minutes.

Later on the same day, at approximately 5:50 PM, defendant called CPD speaking twice with CSO Lisa Johnson,
stating she needed to make a report of “child abuse” and asking for the number of the District Attorney’s Office.
At one point, defendant referred to CSO Johnson as a “bitch”. Later at approximately 6:10 PM defendant called
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again stating she “needed to report something” and Ms. Roddick answered. Defendant asked if Ms. Roddick had
any children and how would she feel if one of them was harmed. Ms. Roddick testified she felt intimidated by
defendant’s questions. Ms. Roddick placed defendant on hold so she could look for an officer to field the call. A
few minutes later, at approximately 6:19 PM. Officer Juarez spoke with Ms. Lininger. Ms. Lininger stated she had
made a report some days prior but could provide little additional information regarding the “report” and refused
to disclose her name to Officer Juarez.

On Friday, June 26, 2015, Ms. Lininger made approximately six (6) telephone calls to the Carmel Police
Department.

On Saturday, June 27, 2015, Ms. Lininger’s first call to the CPD was at approximately 1:29 PM. The phone was
answered by CSO/ dispatcher Lisa Johnson. Defendant asked for the telephone number of the City Manager which
Ms. Johnson provided.

At approximately 1:31 PM, Ms. Lininger called again trying to clarify something about the information provided by
Ms. Johnson. Sgt. Ronald Pfleger answered the call. Sgt. Pfleger, in a stern tone, reminded Ms Lininger that she
was on probation for making annoying and harassing telephone calls and gave her a direct order to stop calling the
CPD unless she had a legitimate emergency. Sgt. Pfleger said all parties had been contacted and the matter had
been “resolved.”

At 2:28 PM, Ms. Lininger called CPD again. Dispatcher Tracy Cook answered the call. Ms. Lininger stated she
wanted to make a report of harassment by the CPD to a supervisor.

At 6:40 PM, Ms. Lininger called again asking to speak to the Chief of Police. Dispatcher Maureen Roddick
answered the call.

Ms. Lininger called three more times that evening, contacting Dispatcher Cook at 9:44 PM, 10:17 PM, and 10:36
PM asking for supervisors, refusing her name and raising the same alleged officer misconduct matter.

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In total, on Saturday, June 27, 2015, Ms. Lininger made approximately eight (8) telephone calls to the Carmel
Police Department.

On Sunday, June 28, 2015, Ms. Lininger placed her first call to the CPD at approximately 08:23 AM. Ms. Lininger
spoke to Dispatcher Dawn Amario and requested the name of the mother in her original report. The dispatcher
had no information and referred defendant to the Sergeant on duty, Luke Powell. At 1:45 PM, Ms. Lininger called
again and spoke to CSO/dispatcher Johnson. At 1:47 PM, Ms. Lininger was connected with Sgt. Luke Powell, who
again explained the matter had been or was under investigation and that he could provide no further information
since it involved a minor. The last call was at 2:20 PM, when defendant spoke with Dispatcher Dawn Amario
regarding her allegations. Dispatcher Amario reminded Ms. Lininger that she had called many times and asked her
to stop.

On Sunday, June 28, 2015, Ms. Lininger made four (4) telephone calls to the Carmel Police Department.

There was no evidence of subsequent calls by the defendant to CPD after June 28, 2015 or to the Court’s
knowledge thereafter. The total number of telephone calls made to the Carmel Police Department from June 26-
28, 2015 was approximately eighteen (18).

Telephone Calls to Victoria Wayner

Ms. Wayner testified that in 2015 she supervised a Youth Tobacco Education Group that offered a two hour class
for teenagers that had been ticketed for use of tobacco. In January 2015, Ms. Lininger brought a matter to her
attention that had come up in the class. Ms. Wayner concluded that no investigation was warranted based on the
facts as she understood them.

Ms. Lininger was not satisfied with this response and began calling Ms. Wayner several times a day. The estimates
provided by Ms. Wayner were between 5-10 calls per day in June 2015 “over several days.” Ms. Wayner
perceived the calls or messages as “angry” and “threatening” and took action to block further calls from Ms.
Lininger’s number. The calls stopped thereafter. Ms. Wayner terminated Ms. Lininger’s employment with the
tobacco education program.
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In a declaration signed by Ms. Wayner on May 31, 2016 and filed with the Court on July 5, 2016 (Defense Exhibit
A), Ms. Wayner stated that while Ms. Lininger’s conduct in calling her was “annoying, excessive and
unreasonable…her purpose was not to harass, but was genuinely to address what she regarded as wrongful
conduct by the police officer toward the minor student in her class.” (Defendant’s Exhibit A, Declaration of
Victoria Wayner in Support of Motion, paragraph 7.)

Calls to Seaside Police Department

Reyna Alvarez, Custodian of Records for the Monterey County Communications authenticated a CD containing
approximately 10 calls made between Ms. Lininger and the Seaside Police Department non-emergency line. The
parties stipulated to the Court receiving the CD into evidence. The calls appear to have occurred mainly on June
27, 2015. Ms. Lininger is heard requesting the “manager on duty,” complaining about Seaside Police Department
“gossiping” about her to the Carmel Police Department, asking to speak to the chiefs of police of Seaside and
Salinas, and asking about how to file a complaint against Carmel Police Department. Ms. Lininger’s tone is at
times frustrated and irritable but also at other moments polite and grateful, thanking the dispatchers for the
information they have patiently provided.

Defense Case

Ms. Lininger testified and admitted she made the approximately 18+ telephone calls. She explained what she
believed had happened and that she felt the need to report the incident at the tobacco education group to the
Carmel Police Department. She stated she was not trying to annoy, harass or physically hurt anyone at CPD. She
testified that she only called Seaside PD to report the alleged harassment and “bullying” by Carmel PD. Her
purpose in making the calls was to “make sure this had been taken care of and not covered-up.”

Standard of Proof

Probation may be revoked if the facts supporting revocation are proven by a “preponderance of the evidence.”
People v. Rodriguez (1990) 51 Cal.3d 437,441. The evidence must support a conclusion that the probationer’s

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conduct constituted a willful violation of the terms and conditions of probation. People v. Galvan (2007) 155 Cal.
App. 4th 978, 982-985.

Discussion

The first question is whether Ms. Lininger violated the terms and conditions of her probation imposed by the trial
court on January 24, 2014, specifically, whether by her conduct in June 2015, she annoyed, harassed or dialed 911
“without a true, valid and legitimate emergency” or whether she dialed 911 repeatedly.

The evidence is clear that Ms. Lininger did not dial 911 specifically; rather she called the non-emergency number
for the Carmel Police Department and Seaside Police Department. The conduct was nonetheless of a similar
nature and impacted to some extent 911 operations at CPD given their unique configuration.

Nonetheless, because there were no calls to 911, the Court cannot find a simple violation of probation based on
the terms of the previous court order and must analyze under applicable law, whether the conduct by Ms. Lininger
violated Penal Code section 653m(b) as alleged in the Notices of Violation of Probation filed on August 24, 2015
and on September 13, 2016.

In order to find Ms. Lininger in violation of her probation based on failure to obey the law as stated in PC 653m(b),
the Court must find, by a preponderance of the evidence that:

(1) Defendant made repeated telephone calls to the victims or made repeated contact with victims by means
of an electronic communications device;

(2) Defendant intended to annoy or harass the Victims; and

(3) Said telephone calls or electronic contacts were not made in good faith or during the ordinary course and
scope of business.

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The Court will consider each of these elements in turn.

1. Did the Defendant make repeated telephone calls to the Victims?

Penal Code section 653m, subdivision (b), requires the defendant make “repeated” calls or contacts. “Repeated”
means “recurring” or “frequent.” (People v. Astalis (2014), 226 Cal. App. 4th Supp. 1, 9.) CALCRIM 1301, regarding
the crime of stalking (Penal Code section 646.9), defines “repeatedly” as “more than once.

The Second Amended Complaint identifies eight victims: Tracy Cook, Maureen Roddick, Lisa Johnson, Mike
Calhoun, Ronald Pfleger, Luke Powell, Dawn Amario, in Count 1; and Victoria Wayner in Count 2.

Defendant clearly made repeated telephone calls to Tracy Cook (4X); Maureen Roddick (3-4X); Lisa Johnson (4-5X)
and Victoria Wayner (undefined but over 10X). Chief Calhoun only communicated with Ms. Lininger once and he
initiated the call (in response to her message). Sgt. Pfleger spoke 2X to the defendant. Sgt. Powell spoke once to
the defendant on Sunday, June 28, 2015. Dispatcher Dawn Amario spoke 2X to the defendant.

Although the sum total of calls to the Carmel Police Department was certainly “repeated”, only three CPD
employees were contacted three or more times: Mr. Cook, Ms. Roddick and Ms. Johnson.

Ms. Wayner was contacted repeatedly based on Ms. Lininger’s ten or more telephone calls. There is no question
Defendant made “repeated” telephone calls to at least four (4) of the named victims in the Second Amended
Complaint.

2. Did the Defendant intend to annoy or harass the Victims?

The next question is whether there was a specific intent to annoy or harass the victims.

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Penal Code Section 653m does not specifically define the phrase “intent to annoy or harass” as used in Section
653m(b).

Penal Code section 653x provides that an intent to annoy or harass, in the context of calls to 911, “is established
by proof of repeated calls or communications over a period of time, however short, that are unreasonable under
the circumstances.” (Pen. Code section 653x(b).)

In People v. Powers, the court noted, “[l]ike all penal statutes, the statute defining the crime of making annoying
telephone calls must be interpreted in light of the objective sought to be achieved, as well as the evil sought to be
averted.” People v. Powers (2011) 193 Cal.App.4th 158. The purpose of Section 653m, according to the court in
Powers, “is to deter people from making harassing telephone calls with the intent to annoy and thus, to secure an
individual's right to privacy against unwanted intrusion.” Powers, supra, 193 Cal.App.4th at 164 (citing People v.
Hernandez (1991) 231 Cal.App.3d 1376, 1384).

The Powers case concerned annoying and vulgar calls to a customer comment line of Cold Stone Creamery, the ice
cream company. Mr. Powers was convicted after a court trial of four misdemeanor counts of violating Section
653m(a). The Court of Appeal reversed noting that “[a]n employee who listens to consumer complaints should
have a thick skin. He or she might reasonably expect to hear complaints just like the ones in this case ….” Powers,
supra, 193 Cal.App.4th 158, at 160.

In the case of People v. Astalis (2014) 226 Cal.App.4th Supp. 1, defendant challenged his conviction following a jury
trial for making repeated telephone calls and repeated contact by means of an electronic communication device
with the intent to annoy or harass (Pen.Code, § 653m(b)). In Astalis, the defendant had left over 40 telephone
messages, text messages and/or Facebook posting on the phone or account of a new male friend of his estranged
wife.

The Court in Astalis confirmed that Section 653m is a crime of specific intent and found that this protected the
statute against attack on the grounds that it was overbroad in violation of free speech or vague in violation of due
process. “A specific intent requirement narrows the scope of telephone harassment statutes because it requires
the caller to intend to cause the recipient actual psychic or emotional harm.” Astalis, supra, 226 Cal. App. 4th
Supp. 1, at 9, citing Comment, Constitutionally Regulating Telephone Harassment: An Exercise in Statutory
Precision (1989) 56 U.Chi. L.Rev. 1403, 1408.) Harassing conduct, as defined by the court in Astalis and by
CALCRIM 1301 in the context of the crime of stalking “means engaging in a knowing and willful course of conduct
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directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no
legitimate purpose.” Astalis, supra at 9, citing Pen.Code, § 646.9, subd. (e); see also CALCRIM 1301.

The Powers and Astalis decisions provide important guidance for the case before the court. Employees of a
municipal police department, similar to operators handling consumer complaints, must have a “thick skin” when
dealing with members of the public. The right to privacy, that Section 653m is designed to protect, is different for
a police department than for a private individual.

Here, there is no evidence that Ms. Lininger was specifically targeting any of the named individuals at the Carmel
Police Department or the Seaside Police Department. In fact, she often seemed confused about who she was
speaking with or asking for. Her purpose in calling was not to annoy or harass specific individuals in these
municipal agencies or directed at anyone in particular. The question of whether her calls served any legitimate
purpose also remains.

Victoria Wayner, a workplace supervisor, is a private individual who was specifically and repeatedly called. As to
Ms. Wayner the Court needs to determine whether the calls to her were made “in good faith” or in the ordinary
course and scope of business.

3. Were defendant’s telephone calls made in good faith or during the ordinary course and scope of
business?

This third and final question is the crux of this case. Ms. Lininger has asserted throughout the proceedings that
she cannot be guilty of a probation violation or the crime of violating PC 653m/ annoying or harassing telephone
calls because her conduct is constitutionally protected activity. The statute here protects legitimate calls or
contacts “made in good faith or during the ordinary course and scope of business.” (Pen. Code § 653m(b).)

Ms. Lininger testified during the hearing that in early 2015 she was employed in Monterey County as a facilitator
of a youth tobacco education group, designed to educate minors about the dangers of cigarette smoking and
marijuana use. During one of those sessions, Ms. Lininger testified one of the participants said he was stopped
and touched inappropriately by an officer from the Carmel Police Department. The Court specifically makes no
finding whatsoever as to the truth or merits of this assertion, only that this is what was in the mind of the
defendant when she contacted the Carmel Police Department and Victoria Wayner. Ms. Lininger testified that

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because she is a mandated reporter (under Penal Code section 11165.7 and 11165.9), she reported the incident to
her supervisor, Ms. Wayner and later, the Carmel Police Department. Ms. Wayner testified that a matter had
been brought to her attention and she looked into it but determined no formal investigation was warranted. After
the initial report to the Carmel Police Department in early 2015, Ms. Lininger has discarded her initial notes but
felt she needed to follow-up on her initial report to CPD. This led to the series of contacts with CPD,
approximately 18 or so calls from June 26-28, 2015 that are the subject of this criminal proceeding.

As the United States Supreme Court has recognized, “the First Amendment protects a significant amount of verbal
criticism and challenge directed at police officers.” Houston v. Hill (1987) 482 U.S. 451, 461. The courts of
California, as well as other states, have emphasized that with respect to crimes such annoying telephone calls or
stalking, the government’s interest is “to protect the privacy of the victims.” Astalis, supra 226 Cal. App. 4th Supp
at 10; Curry v. State of Florida (2002) 811 So.2d 736, 740-43 (40+ complaints to law enforcement agencies
concerning neighbor’s alleged law violations could not support stalking conviction; conduct involved some
“legitimate purpose”, was not directed at a specific person, and involved petitioning activity safeguarded by the
Bill of Rights.)

Here, Ms. Lininger was not satisfied with the response she received from CPD to her initial report. The calls to
Seaside PD only came after officials from CPD threatened to prosecute Ms. Lininger for her calls and inquiries and
also had some legitimate purpose to try and figure out how to make a report against a law enforcement agency.
The calls to Ms. Wayner, although more specifically targeted, had the same legitimate purpose of following up on
a possible incident involving a minor, ceased after Ms. Wayner blocked the calls, and were not perceived as
harassing by Ms. Wayner according to her own sworn declaration.

There is no question that Ms. Lininger’s telephone calls over approximately three days were annoying to a number
of law enforcement agencies and individuals. The Legislature has not specifically stated whether a certain number
of calls, even with some arguable legitimate purpose, are too many. Until then the courts will be left to evaluate
such incidents on a case by case basis. In this case, the Court finds that the scattered calls by Ms. Lininger over the
course of three days may have been odd, annoying and obsessive, but given the authority cited above and on
these particular facts, the People have not met their burden to establish a violation of probation.

The petitions for violation of probation are denied or found to be not true, and are accordingly dismissed.

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Per stipulation of the parties, People’s exhibits #1 and #2 are returned to DDA Catherine Gardner and Defense’s
exhibit A is returned to Counsel Steven Andre in open court.

Case continued to Friday, February 17, 2017 at 8:15am in Salinas courtroom 8 for further proceedings re:
reinstatement of probation.

Defendant to remain on own recognizance.

//

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1 CHARLES J. McKEE, SBN 152458


County Counsel
2 WILLIAM M. LITT, SBN 166614
Deputy County Counsel
3 County of Monterey
168 West Alisal Street, Third Floor
4 Salinas, California 93901-2653
Telephone: (831) 755-5045
5 Facsimile: (831) 755-5283
Email: Littwm@co.monterey.ca.us
6

7 Attorneys for Defendant DEAN FLIPPO

9 UNITED STATES DISTRICT COURT

10 NORTHERN DISTRICT OF CALIFORNIA

11

12

13 STACY LININGER, CASE NO. 5:17-cv-03385-SVK


14 Plaintiff, [PROPOSED] ORDER ON
DEFENDANT DEAN FLIPPO’S FRCP
15 vs. 12(b)(6) MOTION TO DISMISS
AMENDED COMPLAINT
16
RONALD PFLEGER, CITY OF Hearing Date: March 20, 2018
17 CARMEL, DEAN FLIPPO, District Time: 10:00 a.m.
Attorney of Monterey County California, Courtroom: 6 (4th Floor)
18 and DOES 1-50,
19 Defendants.
20

21 This matter came on regularly for hearing, pursuant to Defendant Flippo’s Motion to
22 Dismiss the Complaint of Plaintiff Stacy Lininger on Tuesday, March 20, 2018, in Courtroom 6
23 of the above-entitled court, the Honorable Magistrate Judge Susan van Keulen presiding.
24 Charles J. McKee, County Counsel, by William Litt, Deputy County Counsel, appeared on
25 behalf of Defendant Dean Flippo, and Steven Andre appeared on behalf of Plaintiff Stacy
26 Lininger. The matter was argued and submitted for decision.
27

28 1
Stacy Lininger v. Ronald Pfleger, et al CASE NO. 5:17-CV-03385-SVK
[Proposed] Order on Flippo’s Rule 12(b)(6) Motion to Dismiss Plaintiff’s Amended Complaint
Case 5:17-cv-03385-SVK Document 42-2 Filed 02/05/18 Page 2 of 2

1 [PROPOSED] O R D E R
2 Good cause therefore appearing, the Court finds as follows:

3 1. Plaintiff’s Amended Complaint fails to state a cause of action or cognizable legal

4 claim for which relief can be granted. FRCP Rule 12(b)(6).

5 2. No Article III case or controversy is before the Court, and Plaintiff does not face a

6 real and immediate threat of harm that would justify prospective relief.

7 IT IS HEREBY ORDERED that Defendant Dean Flippo’s Motion to Dismiss the

8 Amended Complaint of Plaintiff Stacy Lininger is granted in its entirety, without leave to amend,

9 and this action is dismissed with prejudice.

10

11 DATED:

12 Susan van Keulen


United States Magistrate Judge
13 United States District Court
Northern District of California, San Jose Division
14

15

16

17

18
19

20

21

22

23

24

25

26

27

28 2
Stacy Lininger v. Ronald Pfleger, et al CASE NO. 5:17-CV-03385-SVK
[Proposed] Order on Flippo’s Rule 12(b)(6) Motion to Dismiss Plaintiff’s Amended Complaint
Case 5:17-cv-03385-SVK Document 42-3 Filed 02/05/18 Page 1 of 2

1 CHARLES J. McKEE, SBN 152458


County Counsel
2 WILLIAM L. LITT, SBN 166614
Deputy County Counsel
3 County of Monterey
168 West Alisal Street, Third Floor
4 Salinas, California 93901-2653
Telephone: (831) 755-5045
5 Facsimile: (831) 755-5283
Email: Littwm@co.monterey.ca.us
6

7 Attorneys for Defendant DEAN FLIPPO

9 UNITED STATES DISTRICT COURT

10 NORTHERN DISTRICT OF CALIFORNIA

11 San Jose Division

12

13 STACY LININGER, CASE NO. 5:17-cv-03385-SVK


14 Plaintiff, CERTIFICATE OF SERVICE
15 vs.
16
RONALD PFLEGER, CITY OF
17 CARMEL, DEAN FLIPPO, District
Attorney of Monterey County California,
18 and DOES 1-50,
19 Defendants.
20

21 I am employed in the County of Monterey, State of California. I am over the age of 18


22 years and not a party to the within action. My business address is 168 West Alisal Street, Third
23 Floor, Salinas, California.
24 On February 5, 2018, I served a true copy of the following document(s):
25 1. DEFENDANT DEAN FLIPPO’S NOTICE OF MOTION AND MOTION TO
DISMISS AMENDED COMPLAINT PURSUANT TO FRCP RULE 12(b)(6);
26 MEMORANDUM OF POINTS AND AUTHORITIES;
27 2. DEFENDANT DEAN FLIPPO’S REQUEST FOR JUDICIAL NOTICE IN
SUPPORT OF FRCP 12(b)(6) MOTION TO DISMISS AMENDED COMPLAINT;
28 and
1
Lininger v. Pfleger, et al. Case No. 5:17-cv-03385-SVK
Certificate of Service
Case 5:17-cv-03385-SVK Document 42-3 Filed 02/05/18 Page 2 of 2

1 3. [PROPOSED] ORDER ON DEFENDANT DEAN FLIPPO’S FRCP 12(b)(6)


MOTION TO DISMISS AMENDED COMPLAINT
2
on the interested parties to said action by the following means:
3
[ ] (BY MAIL) By placing a true copy thereof, enclosed in a sealed envelope, for collection
4 and mailing on that date following ordinary business practices, in the United States Mail
at the Office of the County Counsel, 168 West Alisal Street, 3rd Floor, Salinas, California,
5 addressed as shown below. I am readily familiar with this business=s practice for
collection and processing of correspondence for mailing with the United States Postal
6 Service, and in the ordinary course of business, correspondence would be deposited with
the United States Postal Service the same day it was placed for collection and processing.
7
[U] (BY E-FILING WITH THE U.S. DISTRICT COURT) By submitting these
8 documents for filing on that date pursuant to Local Rule 5-4 and General Order, at the
Office of the County Counsel, 168 West Alisal Street, Third Floor, Salinas, CA addressed
9 as shown on the below service list.

10 [ ] BY ELECTRONIC TRANSMISSION: Based on a court order or an agreement of the


parties to accept service by electronic transmission, I caused the documents to be sent to
11 the persons at the electronic notification address(es) listed below.

12 [ ] (BY FACSIMILE TRANSMISSION) By transmitting a true copy thereof by facsimile


machine, whose facsimile number is (831) 784-5978, to the interested parties to said
13 action at the facsimile number(s) shown below. The facsimile transmission was reported
as complete and without error. A copy of the transmission report was properly issued by
14 the transmitting facsimile machine and is attached hereto.

15 I declare under penalty of perjury under the laws of the State of California that the

16 foregoing is true and correct.

17 Executed on February 5, 2018 at Salinas, California.

18
/s/ Glenda Edwards
19 Glenda Edwards
20
I hereby attest that I have on file approval for any signatures indicated by a “conformed”
21 signature (/s/) within this e-filed document.

22
NAME, ADDRESS OR FAX NUMBER OF EACH PARTY SERVED:
23
STEVEN J. ANDRE, ESQ. Vincent P. Hurley, Esq.
24 26080 Carmel Rancho Boulevard, 200B Ryan M. Thompson, Esq.
Carmel, CA 93923 LAW OFFICES OF VINCENT P. HURLEY
25 Email: stevenjandre@hotmail.com 28 Seascape Village
Attorney for Plaintiff Aptos, California 95003
26 Email: vphurley@hurleylaw.com
rthompson@hurleylaw.com
27 Attorneys for Defendants Ronald
Pfleger and City of Carmel-by-the-Sea
28
2
Lininger v. Pfleger, et al. Case No. 5:17-cv-03385-SVK
Certificate of Service