Case: 18-55429, 06/28/2018, ID: 10925722, DktEntry: 7, Page 1 of 29

No. 18-55429
_______________________________________

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
_______________________________________

ESTATE OF TIMOTHY GENE SMITH, by his successor in interest Wyatt Allen

Gunner Smith; JANIE RICHELLE SANDERS; SANDY LYNN SIMMONS;
WYATT ALLEN GUNNER SMITH,

Plaintiffs-Appellees,

v.

CITY OF SAN DIEGO, et al.,

Defendants, and

DAN ESCAMILLA,

Defendant-Appellant.
_______________________________________

On Appeal from the United State District Court for the Southern District of
California, No. 6-CV-2989-WQH-MDD, Hon. William Q. Hayes
_______________________________________

APPELLANT’S OPENING BRIEF

_______________________________________

Dan Escamilla
304 S. Jones Blvd #3505
Las Vegas NV 89107
Tel: (714) 783-3016
Fax: (714) 783-3016
dan@escamilla.com

Appellant in Pro Se
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TABLE OF CONTENTS
INTRODUCTION ..................................................................................................... 6
STATEMENT OF JURISDICTION ......................................................................... 7
STATEMENT OF ISSUES....................................................................................... 8
STATEMENT OF THE CASE ................................................................................. 8
SUMMARY OF ARGUMENT .............................................................................. 11
STANDARD OF REVIEW .................................................................................... 12
ARGUMENT .......................................................................................................... 12
I. THE DISTRICT COURT ERRED IN FAILING TO STRIKE
THE NINTH CLAIM UNDER CALIFORNIA’S ANTI-SLAPP
STATUTE, OR ALTERNATIVELY, TO DISMISS FOR FAILURE TO
STATE A CLAIM .............................................................................................12
A. PLAINTIFFS HAVE FAILED TO STATE A CLAIM UNDER 42
U.S.C. § 1983 FOR CIVIL CONSPIRACY......................................................12
B. THE NINTH CLAIM IS PROPERLY CONSTRUED AS A
CLAIM UNDER CALIFORNIA STATE LAW AND BARRED BY
CALIFORNIA’S ANTI-SLAPP STATUTE .....................................................16
II. BECAUSE THIS SUIT WAS BROUGHT BY A PLAINTIFF
FRAUDULENTLY CLAIMING TO BE THE SPOUSE OF
DECEDENT AND SUCCESSOR IN INTEREST TO DECEDENT’S
ESTATE, THIS PLAINTIFF’S LACK OF STANDING AT
COMMENCEMENT OF SUIT, AND TO BRING THE MOTION,
REQUIRES DISMISSAL..................................................................................21
A. PLAINTIFF’S STANDING DEFECT MAY NOT BE CURED
BY AMENDMENT OF THE SUCCESSOR-IN-INTEREST. .........................23
B. THE COURT LACKS JURISDICTION TO ENTERTAIN
SANDERS’ MOTION TO SUBSTITUTE ANOTHER PARTY AS THE
SUCCESSOR IN INTEREST BECAUSE SANDERS HAS NO
STANDING. ......................................................................................................24
CONCLUSION ....................................................................................................... 25

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TABLE OF AUTHORITIES

Cases
Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 (1970)..........................................15
American Title Insurance Company v. Lacelaw Corp., 861 F.2d 224 (9th
Cir.1988) ...............................................................................................................22
Applied Equipment Corp. v. Litton Saudi Arabia Ltd., 7 Cal. 4th 503 (1994) ........20
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) .............................................13
Benavidez v. Gunnell, 722 F.2d 615 (10th Cir. 1983) .............................................14
Biodiversity Legal Found. v. Badgley, 309 F. 3d 1166 (9th Cir. 2002) ..................25
Briggs v. Eden Council for Hope & Opportunity,19 Cal. 4th 1106 (1999) ............21
Briscoe v. LaHue, 460 U.S. 325 (1983) ...................................................................21
Bulletin Displays, LLC v. Regency Outdoor Advertising, Inc., 448 F. Supp. 2d
1172 (C.D. Cal. 2006) ...........................................................................................18
Burns v. County of King, 883 F.2d 819, 821 (9th Cir. 1989) (per curiam) .............16
Butler v. Goldblatt Brothers, Inc., 589 F.2d 323 (7th Cir. 1978) ............................14
Cal. Code Civ. P. § 425.16(b)(1) .............................................................................17
Chabak v. Monroy, 154 Cal. App. 4th 1502 (2007) ...............................................21
ComputerXpress, Inc. v. Jackson, 93 Cal. App. 4th 993 (2001) .............................20
Cotta v. County of Kings, 79 F. Supp. 3d 1148 (E.D. Cal. 2015)............................22
Cunningham v. Southlake Ctr. for Mental Health, Inc., 924 F.2d 106, 107
(7th Cir. 1991).......................................................................................................15
Damon v. Ocean Hills Journalism Club, 85 Cal. App. 4th 468 (2000) ..................21
Daniel v. Ferguson, 839 F.2d 1124, 1130 (5th Cir.1988) .......................................14
Estate of Burkhart v. United States, No. C 07-5467 PJH, 2008 WL 4067429
(N.D. Cal. Aug. 26, 2008).....................................................................................24
Fonda v. Gray, 707 F.2d 435, 438 (9th Cir. 1983) ..................................................15

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Gilbrook v. City of Westminster, 177 F.3d 839, 856-57 (9th Cir. 1999) .................16
Ginsberg v. Healey Car Truck Leasing, Inc. 189 F.3d 268 (2d Cir. 1999) .............14
Hagberg v. California Federal Bank FSB, 32 Cal. 4th 350 (2004) ........................20
Hanania v. Loren-Maltese, 212 F.3d 353, 356 (7th Cir. 2000) ...............................15
Hayes v. San Diego, 736 F. 3d 1223 (9th Cir. 2013) ........................................ 22, 25
Hilton v. Hallmark Cards, 599 F.3d 894 (9th Cir. 2010) ..........................................8
Johnson v. California Department of Corrections and Rehabilitation, 3:17-
cv-02128, 2009 WL 2425073 (E.D. Cal. Aug. 7, 2009) ......................................24
Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 2012).......................................15
Lauter v. Anoufrieva, 642 F. Supp. 2d 1060 (C.D. Cal. 2009) ................... 13, 16, 19
Lee v. Fick,135 Cal. App. 4th 89 (2005)..................................................................21
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ..............................................25
Martin v. Overton, 391 F.3d 710 (6th Cir. 2004) ....................................................13
McDonald v. Filice, 252 Cal. App. 2d 613 (1967) ..................................................13
Mulder v. Pilot Air Freight, 32 Cal. 4th 384 (2004)................................................20
Oglesby v. RCA Corp., 752 F.2d 272 (7th Cir. 1985)..............................................13
Planned Parenthood Federation of America, Inc. v. Center for Medical
Progress, 16-16997, 2018 WL 2229329 (9th Cir. May 16, 2018) ..........................12
Price v. Stossel, 620 F.3d 992 (9th Cir. 2010) .........................................................18
Rogers v. Home Shopping Network, 57 F.Supp.2d 973 (C.D.Cal.1999).................18
Rose v. County of Sacramento, 163 F. Supp. 3d 787 (E.D. Cal. 2016) ...................25
Travelers Prop. Cas. Co. of Am. v. KB Home Coastal, Inc., 2012 WL
13012685, at *1 (C.D. Cal. July 3, 2012) .............................................................17
United Tactical Systems, LLC v. Real Action Paintball, Inc., 143 F.Supp.3d
982 (N.D. Cal. 2015) ............................................................................................20
United Union of Roofers, etc. No. 40 v. Insurance Corporation of America,
919 F.2d 1398 (9th Cir. 1990) ..............................................................................23

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Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097 (9th Cir. 2003) ....................... 12, 18
Walker v. Kiousis, 93 Cal. App. 4th 1432 (2001) ....................................................20
Zurich Insurance Company v. Logitrans, Inc 297 F3d 528 (6th Cir. 2002)............25
Statutes
28 U.S.C. § 1331 ........................................................................................................7
28 U.S.C. § 1332 ........................................................................................................7
28 U.S.C. § 1337 ........................................................................................................7
28 U.S.C. § 1343(a) ...................................................................................................7
28 U.S.C. § 1367(a) ...................................................................................................8
42 U.S.C. § 1983 .............................................................................................. passim
Cal. Civil Code § 47.......................................................................................... 20, 21
Cal. Code Civ. P. 377.32................................................................................... 22, 25
Cal. Code Civ. Pro. § 377.30 ...................................................................................22
Cal. Code Civ. Proc. § 425.16(b)(1) ........................................................................17
Code of Civ. Proc. § 435.16(b)(1) ...........................................................................19
Rules
Fed. R. App. P. 4(a)(1)(A) .........................................................................................8
Fed. R. Civ. P. 11 .....................................................................................................23
Fed. R. Civ. P. 12(b)(1)..............................................................................................8
Fed. R. Civ. P. 12(b)(6)........................................................................................8, 19

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INTRODUCTION

This is a survival action brought against the City of San Diego, various police
officers employed by the City, and various private parties, including Defendant Dan
Escamilla, a California fugitive recovery agent (“Defendant”). The action arises out

of an attempt by law enforcement to arrest an out-of-state fugitive, Timothy Eugene

Smith (“Decedent”) in which Decedent was fatally shot by a San Diego police
officer.

This action was thereafter brought by family members as individuals, by

Sanders as an individual, and by Sanders “on behalf of the [e]state of Decedent”
(“Plaintiffs”). ER 25, 27 ¶ ¶ 10-13. Sanders falsely claimed to be a “legal spouse” to
obtain standing to sue as successor-in-interest on behalf of the estate. Id. ¶ 10.
The First Amended Complaint (FAC) was comprised of three (3) federal
claims under 42 U.S.C. § 1983 (in the First, Second, and Third claims), and nine (9)

state claims (in the Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, and
Twelfth claims). The allegations demonstrate that while the Fourth through Twelfth
claims may all reference a federal violation within the factual context, only state law
provides the theory of liability asserted in these claims. ER 25.
Defendant, a private fugitive recovery agent whose involvement consisted of
merely providing police officers with information concerning the fugitive in their

investigation, was named as a defendant in the Ninth, Tenth, and Twelfth claims of
the FAC. Defendant responded to this apparent SLAPP (Strategic Lawsuit Against
Public Participation) by filing an anti-SLAPP motion, seeking to strike Plaintiffs’
claims under California Code of Civil Procedure section 425.16 and to dismiss for

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other defects (including lack of standing, and failure to state a claim) under Federal
Rules of Civil Procedure §§ 12(b)(1) and (6). The district court properly dismissed
two of the three claims against Defendant, but erroneously allowed the Ninth Claim
to proceed.
The remaining Ninth Claim alleges that Defendant’s mere passing-on of
information to police authorities––information relayed from a prior out-of-state
fugitive recovery agents that said fugitive had been observed with firearms––was
part of a “conspiracy” to use excessive police force against the fugitive. ER 44.
Significantly, the Ninth Claim does not name any police defendant or state actor, as
required for Plaintiffs to state a claim under 42 U.S.C. § 1983.
The district court erred by overlooking this important distinction––
misconstruing the Ninth Claim as a federal claim [ER11] although only state law
could provide any potential theory of liability for the alleged “conspiracy” involving
private parties (as described herein). See ER 25 (Ninth Claim); ER 44-45 (civil
conspiracy alleged, against all private parties). As a result of the district court’s

construing the Ninth Claim as a federal claim, it declined to apply California’s anti-
SLAPP statute.
Defendant appeals the denial of his anti-SLAPP motion as to the Ninth
Claim, which is the only claim remaining against this Defendant.

STATEMENT OF JURISDICTION

The district court exercised jurisdiction under 28 U.S.C. §§ 1331, 1332,

1337, 1343(a), and supplemental jurisdiction over the pendent state law claims under
28 U.S.C. § 1367(a). This appeal challenges an order denying Defendant’s anti-
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SLAPP motion. ER 4. This Court has jurisdiction to review the district court’s
decision under the collateral order doctrine. Hilton v. Hallmark Cards, 599 F.3d 894,
900 (9th Cir. 2010). The district court entered its order denying Defendant’s motion
on February 28, 2018. The notice of appeal was timely filed on March 30, 2018. (ER
1). Fed. R. App. P. 4(a)(1)(A).

STATEMENT OF ISSUES

1. Whether the district court erred in refusing to apply California’s anti-

SLAPP statute to the plaintiff’s Ninth Claim by misconstruing it as a federal claim,
where the allegations attempt to plead a state theory of liability for a conspiracy
among private parties, and do not state a claim under 28 U.S.C. § 1983.
2. Whether the district court lacked jurisdiction to hear a motion to
substitute a new successor-in-interest by a plaintiff who lacked standing to file this
action, but did so by fraudulently claiming she was the spouse of Decedent.

STATEMENT OF THE CASE

Defendant appeals the denial of his motion to dismiss under Federal Rules of
Civil Procedure §§ 12(b)(1) and (6) and under California’s anti-SLAPP statute. The

motion sought to dismiss, inter alia, the Ninth Claim in the FAC, which is the only
remaining claim against this Defendant.
The Ninth Claim alleges a civil conspiracy between private parties, for which

state law provides a vicarious theory of liability but no cause of action. The district
court misapprehended the claim as a federal claim when Plaintiffs mislabeled the
conspiracy by inserting a parenthetical reference to “42 U.S.C. § 1983” in the title of

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the Ninth Claim. ER 44. Plaintiffs did not include any corresponding allegation in
the claim text, ER 44, nor did Plaintiffs include any reference to § 1983 in the
caption for the Ninth Claim on the title page of the complaint. ER 25.
The FAC alleges that this Defendant is an officer and director of a firm that
does business as a bail fugitive recovery agent. ER 28 ¶¶ 17-18. The FAC alleges
that, after Plaintiff Sanders was arrested in Missouri, a local bail agent who is a co-
defendant in this action, Natalie Ann Macey, posted a bail bond for Sanders’ release
(ER 31 ¶ 30) and subsequently sought to apprehend Sanders. ER 31 ¶ 33.
The FAC goes on to allege that as a part of the effort to apprehend Sanders,
multiple private actors were involved in a fugitive recovery investigation. ER 31-32
¶ 34. These private actors, including Defendant, provided information to law
enforcement officers which they had obtained in their investigation of Sanders “as
well as her husband TIMOTHY GENE SMITH . . . .,” who had previously been
observed with firearms. ER 31-32 ¶¶ 34-35, ER 53.
The district court found that Decedent was later observed by two (2) police

officers working in the Pacific Beach area. ER 17. The officers gave chase and
Decedent fled. Id. After a chase involving canine units and helicopters, Decedent
was ultimately shot and killed by a San Diego police officer. Id.
On December 29, 2016, the FAC was filed. ER 25. According to the title
page of the FAC, federal claims under 42 U.S.C. § 1983 are alleged only in the First,
Second and Third Claims. Id. The remaining claims (Fourth through Twelfth) do not

reference federal claims in the caption and appear to be based on state theories of

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liability, including a conspiracy theory against solely private actors in the Ninth
Claim. Id., ER 44 ¶¶ 101-109.
The Ninth Claim alleges that Defendant and other private parties “conspired”
to commit a variety of violations, including a “conspiracy” to deprive the
“constitutionally protected rights” of Decedent. ER 44.
Plaintiffs have included the Ninth Claim for a “conspiracy” to bring
Defendant into the lawsuit as a private party because Plaintiffs are retaliating against
Defendant for providing information to police officers about a potentially dangerous
fugitive. Such a lawsuit accomplishes no purpose, other than to chill Defendant and
other private parties from exercising their First Amendment rights in the context of
relaying public safety information to police officers. This is a classic SLAPP suit, for
which California’s anti-SLAPP statute provides an effective bar.
On October 19, 2017, Defendant filed an anti-SLAPP motion seeking to
strike all claims naming Defendant (the Ninth, Tenth, and Twelfth Claims) under
California Code of Civil Procedure section 425.16, and to dismiss under Federal

Rules of Civil Procedure §§ 12(b)(1) and (6) for defects that included lack of
standing, and failure to state a claim. ER 10, 11.
The district court, without oral argument, granted dismissal of the Tenth and
Twelfth Claims but denied the motion as to Ninth Claim. ER 11. The district court
erroneously construed the Ninth Claim as a federal claim, thereby preventing
application of California’s anti-SLAPP statute. ER 11.

///
///

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SUMMARY OF ARGUMENT

The Ninth Claim, alleging a “conspiracy” naming Defendant for providing

information about a fugitive to the police, falls squarely within the purview of
California’s anti-SLAPP statute.

This claim arises from conduct in furtherance of Defendant’s exercise of his

First Amendment right to free speech. The claim can only be reasonably construed
as a state law claim subject to anti-SLAPP protections since it names only private

parties in the conspiracy and because no federal claim can be stated without a state
actor.
This Court has previously held, in a number of cases, that a private party who
supplies information to police is not involved in a “joint activity” with a state actor
and the Ninth Claim cannot reasonably be construed as a federal claim without a
state actor named. Nevertheless, the district court erred by construing the Ninth

Claim as a 42 U.S.C. § 1983 claim when the plaintiffs mislabeled the state claim by
parenthetical reference to § 1983 in the section header of the Ninth Claim.
De novo review of the district court’s treatment of the Ninth Claim will show
that the district court should have either dismissed the claim or stricken the claim
under the anti-SLAPP statute. That is because either the claim must be found
defective as failing to include a state actor in the alleged federal conspiracy, or if

invoking a state theory of liability for conspiracy involving no state actors, it must be
found subject to California’s anti-SLAPP protections.
///
///

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STANDARD OF REVIEW

This Court’s review is de novo. See Vess v. Ciba-Geigy Corp. USA, 317 F.3d
1097, 1102 (9th Cir. 2003). The anti-SLAPP statute should be “construed broadly.”
Id. at 1109. Because this Court is “required . . . to review the district court’s denial

of an anti-SLAPP motion on interlocutory appeal,” it considers the “legal sufficiency

of [a plaintiff’s] pleadings de novo applying a Rule 12(b)(6) standard” in this appeal.
See Planned Parenthood Fed. of Am., Inc. v. Center for Med. Progress, 16-16997, 2018

WL 2229329 *1 (9th Cir. May 16, 2018) (citations omitted).

ARGUMENT
I. THE DISTRICT COURT ERRED IN FAILING TO STRIKE THE
NINTH CLAIM UNDER CALIFORNIA’S ANTI-SLAPP STATUTE, OR
ALTERNATIVELY, TO DISMISS FOR FAILURE TO STATE A CLAIM

The district court erred in failing to strike the Ninth Claim under California’s
anti-SLAPP statute, or alternatively to dismiss for failure to state a claim. These

issues are intertwined: the district court erroneously construed the Ninth Claim as a
federal claim and thereby foreclosed California anti-SLAPP protections. ER 11. An
analysis demonstrating the allegations cannot possibly state a federal claim (as
opposed to an attempt to plead a state theory of liability) also demonstrates that
California’s anti-SLAPP protections should have been applied to strike the claim.

A. PLAINTIFFS HAVE FAILED TO STATE A CLAIM UNDER

42 U.S.C. § 1983 FOR CIVIL CONSPIRACY
No state actors are named in the Ninth Claim, because it is not a federal

claim. Conversely, the actual federal claims, which do name state actors, are the
First, Second, and Third Claims. ER 35-37.

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In the body of the FAC, Plaintiffs sub-title the Ninth Claim as a claim under
“42 U.S.C. § 1983.” However, a federal court is not bound by “labels and
conclusions” of a plaintiff’s complaint. See Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007). Rather, the allegations contained in the claim are controlling.1
Here, the allegations in the Ninth Claim do not allege a joint action with a
particular state actor. ER 44. There cannot be a private, federal cause of action under
§ 1983 unless there is a state actor involved in a joint action with a private party.
See, e.g., Lauter v. Anoufrieva, 642 F. Supp. 2d 1060, 1087-88 (C.D. Cal. 2009)
(failure to state claim under 42 U.S.C. § 1983 where no inference that “any
defendant conspired or entered joint action with a state actor”), citing string of cases,
with similar facts to the one at bar, involving failed § 1983 actions where private
parties supplied information to police, including Daniel v. Ferguson, 839 F.2d 1124,
1130 (5th Cir.1988) (“Police reliance in making an arrest on information given by a
private party does not make the private party a state actor.”).
In Ginsberg v. Healey Car Truck Leasing, Inc. 189 F.3d 268 (2d Cir. 1999),

another similar conspiracy was alleged involving a private party that provided police
officers with background information. The Second Circuit found that “[Defendant’s]
provision of background information to a police officer does not by itself make

1
See, e.g., Oglesby v. RCA Corp., 752 F.2d 272, 277-78 (7th Cir. 1985) (“It is proper for
the court to examine the record to determine if the real nature of the claim is federal,
notwithstanding plaintiff’s characterization to the contrary.”); Martin v. Overton, 391 F.3d
710, 713 (6th Cir. 2004) (construing civil rights claim as a habeas petition because that
was the only viable claim based upon the allegations set forth in the complaint). See
McDonald v. Filice, 252 Cal. App. 2d 613, 622 (1967) (noting the “elementary principle
of modern pleading” that the “nature and character of a pleading is to be determined from
its allegations, regardless of what it may be called”).
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Defendant a joint participant in state action under Section 1983.” Id. at 272, citing
Benavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir. 1983) (“The mere furnishing of
information to police officers does not constitute joint action under color of state law
which renders a private citizen liable under [§ 1983]”). See also Butler v. Goldblatt
Bros., Inc., 589 F.2d 323, 327 (7th Cir. 1978).
Here, Plaintiffs allege (at ER 45 ¶ 106) that Defendant acted under color of
state law, explaining:

Defendants engaged in a search for and surveillance of decedent and

his wife on the day of his death as part of a joint operation in which
they coordinated with the San Diego Police Department. Defendant
Escamilla, a licensed bondsman and fugitive recovery agent, engaged
in frequent communication, coordination, and planning with the
S.D.P.D. These activities were directed at locating and detaining
decedent and Janie Richelle Sanders. On the date of Timothy Gene
Smith’s death, Escamilla and/or his agents specifically searched in
the Pacific Beach area of San Diego, and shared the results of their
efforts with S.D.P.D.

However, for a private actor to act under color of state law he must have “had a

‘meeting of the minds’ and thus reached an understanding” with a state actor to deny
plaintiffs a constitutional right. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158
(1970); see also Hanania v. Loren-Maltese, 212 F.3d 353, 356 (7th Cir. 2000)

(requiring a showing of “a concerted effort between” a private actor and state actor
and that a state actor and private actor “reached an understanding to deprive the
plaintiff of her constitutional rights”); Cunningham v. Southlake Ctr. for Mental

Health, Inc., 924 F.2d 106, 107 (7th Cir. 1991) (“A requirement of the joint action
charge . . . is that both public and private actors share a common, unconstitutional

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goal.”). And to specifically allege a federal conspiracy, a plaintiff must allege a prior
agreement by the defendants to violate the plaintiff’s constitutional rights. Fonda v.
Gray, 707 F.2d 435, 438 (9th Cir. 1983) (“The mere acquiescence of the bank
employees to the investigation request of the FBI to view Fonda’s bank records is,
without more, insufficient to prove a conspiracy.”) See also Lacey v. Maricopa
County, 693 F.3d 896, 934 (9th Cir. 2012) (plaintiff must show that the conspiring
parties “reached a unity of purpose or a common design and understanding, or a
meeting of the minds in an unlawful arrangement” and shared “the common
objective of the conspiracy”).
Plaintiff claims that Defendant engaged in “frequent communication,
coordination, and planning with the S.D.P.D.” This allegation does not name any
particular state actor with whom Appellant had a “meeting of the minds” to
somehow violate the decedent’s constitutional rights. Claims under § 1983 require
an agreement between two (2) or more persons.2 Conclusory allegations of wide-
spread conspiracy are insufficient to state a valid § 1983 claim. Burns v. County of

King, 883 F.2d 819, 821 (9th Cir. 1989) (per curiam).
The material allegations in FAC relating to Defendant’s actions under color
of authority (at ER 45 ¶ 106) also disclose a purpose of the communications not
related to any conspiracy to deprive civil rights. The FAC alleges that Defendant’s
communications with the police were “directed at locating and detaining decedent

2
To state a claim for conspiracy pursuant to § 1983, Plaintiff must allege specific facts
showing two or more persons intended to accomplish an unlawful objective of causing
him harm and took some concerted action in furtherance of that goal. Gilbrook v. City of
Westminster, 177 F.3d 839, 856-57 (9th Cir. 1999).
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and Janie Richelle Sanders,” not for the purpose of plotting to violate Smith’s
constitutional rights through an extrajudicial killing.
Plaintiffs’ allegations in the FAC fall short of alleging facts which establish
that Defendant reached an agreement with a state actor to somehow deprive
decedent of his constitutional rights. The district court committed error in finding
that the facts alleged in the Ninth Claim were sufficient to state a valid § 1983 claim.
(ER 10, referencing prior order at ER 22).

B. THE NINTH CLAIM IS PROPERLY CONSTRUED AS A

CLAIM UNDER CALIFORNIA STATE LAW AND
BARRED BY CALIFORNIA’S ANTI-SLAPP STATUTE
Lacking the state actor required for a federal claim, the Ninth Claim may only
be construed as an attempt by the Plaintiff to plead civil conspiracy under a theory of
vicarious liability under California state law. See Lauter, 642 F. Supp. 2d at 1097
(civil conspiracy in California is a “theory of vicarious liability under which certain
defendants may be held liable for torts committed by others,” citation omitted).
Unlike the First, Second, and Third Claims (which do name a state actor under §
1983), the Ninth Claim names no state actor and is simply an attempt to round up
private parties under the state conspiracy theory of liability.

Because the Ninth Claim in the FAC (ER 44) is properly a state law claim,
application of California's anti-SLAPP statute, Cal. Code Civ. P. § 425.16, is proper.
This statute authorizes parties to file a “special motion to strike” any “cause of

action against a person arising from any act of that person in furtherance of the
person's right of petition or free speech.” Cal. Code Civ. P. § 425.16(b)(1). As the
Ninth Circuit has noted, this statutory scheme “was enacted to allow early dismissal
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of meritless first amendment cases aimed at chilling expression through costly, time-
consuming litigation.” Metabolife Int'l v. Wornick, 264 F.3d 832, 839 (9th Cir.
2001). Although the Anti-SLAPP statute is a creature of California state law,
“[w]hen a [federal] district court in California exercises supplemental jurisdiction
over a claim, a defendant may move to strike that claim under California's anti-
SLAPP statute.” See Travelers Prop. Cas. Co. of Am. v. KB Home Coastal, Inc.,
2012 WL 13012685, at *1 (C.D. Cal. July 3, 2012).
The anti-SLAPP statute permits defendants to bring a “special motion to
strike” if a cause of action arises “from any act . . . in furtherance of the . . . right of
petition or free speech . . . in connection with a public issue,” unless “the plaintiff
has established that there is a probability that the plaintiff will prevail on the claim.”
Cal. Code Civ. Proc. § 425.16(b)(1). “An anti-SLAPP motion may be based on ‘any
defect in the plaintiff’s action,’ including failure to state a claim or failure to adduce
evidence to support the claim.” Bulletin Displays, LLC v. Regency Outdoor Adv.,
Inc., 448 F. Supp. 2d 1172, 1179 (C.D. Cal. 2006), quoting Rogers v. Home

Shopping Network, 57 F.Supp.2d 973, 976 (C.D.Cal.1999).

In evaluating an anti-SLAPP motion, courts engage in a two-part inquiry.
First, a defendant “must make an initial prima facie showing that the plaintiff’s suit
arises from an act in furtherance of the defendant’s rights of petition or free speech.”
Vess, supra, 317 F.3d at 1110 (citations omitted). Second, once that showing is
made, “the burden shifts to the plaintiff to demonstrate a probability of prevailing on

the challenged claims.” Id. “[A] defendant’s anti-SLAPP motion should be granted
when a plaintiff presents an insufficient legal basis for the claims or when no

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evidence of sufficient substantiality exists to support a judgment for the plaintiff.”

Price v. Stossel, 620 F.3d 992, 1000 (9th Cir. 2010) (citations and internal quotation
marks omitted).

1. The Acts Alleged Were in Furtherance of Defendant’s Rights of Free

Speech, in Connection with a Public Issue

First, the allegations in the FAC demonstrate that the alleged acts of

Defendant were in furtherance of Defendant’s right to free speech under the United
States or California Constitution, and in connection with a public issue. The Ninth
Claim is premised on Defendant’s dissemination of a wanted poster to the police

which contained information suggesting that Smith, a fugitive, may be armed.

Plaintiffs allege that as a part of the fugitive recovery, Defendants:

conspired to deprive [Decedent] of his constitutionally protected

rights . . . by fabricating and falsifying information about
[Decedent], and publishing and disseminating said information to
law enforcement agencies with the knowledge and expectation that
law enforcement would act upon that information….

ER 44-45. Bringing fugitives to justice, both for public safety reasons and to uphold
the respect for our courts and the integrity of our criminal justice system, is certainly
of considerable interest to the general public. Accordingly, notification provided to

anyone that might be able to assist in locating and arresting a fugitive would be
subject to the anti-SLAPP statute. (Cal. Code Civ. Proc. § 435.16(b)(1).) See, e.g.,
Lauter, 642 F. Supp. 2d at 1087-88. The same must hold true for any communication
which passes on information intended to keep police officers from harm. The
allegations in the Ninth Claim affirmatively establish that the Defendant’s

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dissemination of the officer safety information on the wanted poster arises from a
protected activity.

2. Plaintiffs did not, and cannot, demonstrate a probability of prevailing on

their remaining claim against Defendant
The burden then shifts to Plaintiffs to demonstrate a probability of prevailing

on the claim, which it cannot do for two reasons.

First, the Ninth Claim cannot stand under state law because conspiracy is
“not an independent tort” but requires proof of commission of an underlying tort

within the ambit of the conspiracy.”3 Because Plaintiff has failed to plead an
underlying tort, no state law conspiracy claim is sufficiently pled. Plaintiff’s failure
to state a claim under state law is an independent basis for dismissal of the Ninth

Claim under Fed. R. Civ. P. 12(b)(6).

Second, and more significantly, because information provided to police
officers is privileged under Cal. Civ. Code § 47, Plaintiff is not able to demonstrate a

probability of prevailing on its Ninth Claim against Defendant.

California law unequivocally provides that statements to police officers by
private citizens are privileged communications. The litigation privilege under Civil

Code section 47, subdivision (b) provides an absolute privilege from tort liability for
communications concerning possible wrongdoing made to a local police department.
Hagberg v. Cal. Fed. Bank FSB, 32 Cal. 4th 350, 364 (2004); accord Mulder v. Pilot

Air Freight, 32 Cal. 4th 384, 387 (2004).

3
United Tactical Sys., LLC v. Real Action Paintball, Inc., 143 F.Supp.3d 982, 1024 (N.D.
Cal. 2015) (emphasis added), quoting Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 7
Cal. 4th 503, 510–11 (1994).
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The Supreme Court explained that section 47, subdivision (b) “‘serves the
important public interest of securing open channels of communications’ between
citizens and law enforcement personnel investigating wrongdoing.” Mulder, 32 Cal.
4th at 387 (emphasis added), quoting Hagberg, 32 Cal. 4th at 372. See also Walker
v. Kiousis, 93 Cal. App. 4th 1432, 1439 (2001) (complaint to police is “made in
connection with an official proceeding authorized by law”); ComputerXpress, Inc. v.
Jackson, 93 Cal. App. 4th 993, 1009 (2001) (filing complaint with a government
agency constitutes a “statement before an official proceeding” within section 425.16,
subdivision (e)(1)); Lee v. Fick,135 Cal. App. 4th 89, 97 (2005) (complaint to the
government is itself “part of the official proceedings”). Even if the information is
alleged to be false, it is still a protected communication. Chabak v. Monroy, 154 Cal.
App. 4th 1502, 1511 (2007) (in action by physical therapist against client alleging
false report of child abuse, client’s “statements to police clearly arose from protected
activity”).
The dissemination of officer safety information which was obtained through

a civilian investigation and on a matter of public interest,4 is well within the ambit of
Civil Code section 47’s protections. Because Defendant’s alleged liability is based
solely on communications which are absolutely privileged under Civil Code section
47 and which are within the category of constitutionally protected speech,

4
“Public interest” is defined broadly, not narrowly. See, e.g., Damon v. Ocean Hills
Journalism Club, 85 Cal. App. 4th 468, 474 (2000). Further, the California Supreme Court
has acknowledged “that no standards are necessary” to assess which issues are of public
interest because “judges and attorneys . . . will, or should, know a public concern when
they see it.” Briggs v. Eden Council for Hope & Opportunity,19 Cal. 4th 1106, 1122 & fn.
9 (1999) (internal quotation marks omitted).
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Defendant’s actions fall squarely within the common law witness immunity under
Briscoe v. LaHue, 460 U.S. 325, 335 (1983).
Accordingly, the Ninth Claim for conspiracy against Defendant is properly
construed as a state law claim and stricken under California’s anti-SLAPP statute.
II. BECAUSE THIS SUIT WAS BROUGHT BY A PLAINTIFF
FRAUDULENTLY CLAIMING TO BE THE SPOUSE OF
DECEDENT AND SUCCESSOR IN INTEREST TO
DECEDENT’S ESTATE, THIS PLAINTIFF’S LACK OF
STANDING AT COMMENCEMENT OF SUIT, AND TO BRING
THE MOTION, REQUIRES DISMISSAL
California’s statutory requirements for standing to bring a survival action are
stated under California Code of Civil Procedure § 377.30[et. seq.]:

A cause of action that survives the death of the person entitled to

commence an action or proceeding passes to the decedent’s
successor in interest ..., and an action may be commenced by the
decedent’s personal representative or, if none, by the decedent’s
successor in interest.

See Hayes v. San Diego, 736 F. 3d 1223, 1229 (9th Cir. 2013). Section 377.32
requires any party seeking to commence an action as a decedent’s successor in
interest to file an affidavit or declaration stating the basis for that designation. Cal.
Code Civ. P. 377.32. Among other things, § 377.32(c) provides that “[a] certified
copy of the decedent’s death certificate shall be attached to the affidavit.” Cotta v.
County of Kings, 79 F. Supp. 3d 1148, 1159 (E.D. Cal. 2015) (citing § 377.32(c))
Plaintiffs’ FAC alleges that Janie Richelle Sanders “as the surviving spouse
is the successor in interest of the Estate of Timothy Gene Smith” (ER 26, line 19),
and that Sanders is the “legal spouse” of Timothy Gene Smith. (ER 27, line 7.)

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While these assertions were not signed by Sanders under penalty of perjury,
“[u]nder federal law, stipulations and admissions in the pleadings are generally
binding on the parties and the Court.”American Title Ins. Co. v. Lacelaw Corp., 861
F.2d 224, 225 (9th Cir.1988) (quotation omitted)
Ten (10) months after filing suit and nearly two (2) years after the decedent’s
death, Sander’s allegations that she was the legal spouse of decedent were debunked
when her standing was challenged5 leaving Sanders unable to establish that she is a
successor in interest to the decedent as is required for a survival action under Cal.
Code Civ. Proc., Section 377.32(a)(4).
This is when Sanders’ attorneys filed an ex parte motion to substitute in an
alternate successor-in-interest, the decedent’s estranged son, in an attempt to save
this action from dismissal6
///
///

5
Plaintiff’s attorneys first disclosed in their October 17, 2017 Ex Parte Motion, that
Sanders was not the legal spouse of decent. A declaration from Sanders [ER 12] states
that she “did not return the signed marriage certificate to the Carroll County, AR
courthouse…” and is not the legal spouse of decedent.
6
Plaintiffs’ attorneys painstakingly attempt to explain-away their misrepresentations to
the Court that Sanders was the “legal spouse” of the decedent; this material issue goes to
the gravamen of these attorneys’ obligation under Rule 11 of the Federal Rules of Civil
Procedure to conduct “an inquiry reasonable under the circumstances.” Fed. R. Civ. P. 11.
An allegation that a Plaintiff is defendant’s successor in interest is a core element to the
Plaintiff’s capacity to sue and legal standing, such that Plaintiffs should be bound to this
allegation and denied a remedy for their deceit in falsely alleging this critical fact.

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A. PLAINTIFF’S STANDING DEFECT MAY NOT BE CURED

BY AMENDMENT OF THE SUCCESSOR-IN-INTEREST.

Relying on United Union of Roofers, etc. No. 40 v. Ins. Corp. of Am., 919

F.2d 1398, 1402 (9th Cir. 1990) (“United Union”), Plaintiffs contended that the
naming of an ineligible successor-in-interest may be cured through amendment.
In United Union, the district court dismissed the plaintiff’s complaint for lack

of standing, refusing to allow it to file a first amended complaint. On appeal, United

Union claimed that it had standing to assert the rights of its members for payment of
back-wages. While the Ninth Circuit rejected Union “associational standing to assert

the rights of its members,” it did remand the case so that the district court could
determine whether, United Union could “assert an independent right to standing” by
amendment to the complaint.

United Union stands only for the proposition that the facts of a complaint can
be amended to address the issue of standing. It does not stand for the proposition, as
advanced by Plaintiffs, that more substantial defect of the failure to name an

appropriate successor-in-interest may be cured through a substitution of the

successor in interest. The amendment of facts and the amendment of parties are
entirely separate actions.

///
///
///

///
///

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B. THE COURT LACKS JURISDICTION TO ENTERTAIN

SANDERS’ MOTION TO SUBSTITUTE ANOTHER PARTY
AS THE SUCCESSOR IN INTEREST BECAUSE SANDERS
HAS NO STANDING.

Sanders filed a declaration admitting that she was never the lawful wife of
the decedent (ER 13). Accordingly, Sanders lacked the capacity to sue on behalf of
decedent’s estate, having no standing7 to bring a survival action on behalf of Smith

When a plaintiff fails to comply with the successor-in-interest requirements

(Cal. Civ. Code Proc. § 377.32) including the filing of a signed declaration under
penalty of perjury, they have failed to establish standing and the case is properly

dismissed. See, Hayes, 736 F. 3d at 1229; Rose v. Cty. of Sacramento, 163 F. Supp.
3d 787, 797-798 (E.D. Cal. 2016). Most importantly to this case, “[s]tanding is
determined as of the commencement of litigation.” Biodiversity Legal Found. v.

Badgley, 309 F. 3d 1166, 1171 (9th Cir. 2002). See also Lujan v. Defenders of
Wildlife, 504 U.S. 555, 570 n. 5 (1992).
If a plaintiff lacked standing to bring this action, plaintiff also lacks standing

to bring a motion to substitute the real party in interest. See Zurich Ins. Co. v.
Logitrans, Inc 297 F3d 528, 531 (6th Cir. 2002).
///

7
Although “[Defendants] use the term ‘standing,’ they are not referring to ‘standing’ in
the constitutional sense of the word. Instead, they are referring to standing in terms of
Plaintiff's ‘capacity to sue’ on behalf of Decedent’s estate.” Johnson v. Cal. Dept. of Corr.
& Rehab., 3:17-cv-02128, 2009 WL 2425073, at *4 (E.D. Cal. Aug. 7, 2009) (citation
omitted); see also Estate of Burkhart v. United States, No. C 07-5467 PJH, 2008 WL
4067429, at *10 (N.D. Cal. Aug. 26, 2008) (“The question whether [Plaintiff] has the
ability to assert claims on [the decedent’s behalf under California’s survival statute]
involves the determination whether she has the capacity to bring suit as a representative.”)
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The district court erred in failing to dismiss the action based on the
successor-in-interest lacking standing at the commencement of suit.

CONCLUSION

For the reasons set forth herein, the Court must reverse the district court’s
denial of Defendant’s motion to strike, or in the alternative to dismiss, the Ninth

Claim against this Defendant.

Dated: June 28, 2018 Respectfully submitted,

Dan Escamilla
Appellant in Pro Se

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STATEMENT REGARDING ORAL ARGUMENT

Pursuant to Fed. R. App. P. 34(a), appellant requests that the Court hear oral
argument in this case. The case presents issues regarding the scope of California’s
anti-SLAPP protections as applied to transmission of information to police which is

calculated to locate and apprehend criminals and provide for the safety of police
officers. Oral argument will assist the Court in considering the issues presented and
the underlying facts.

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STATEMENT OF RELATED CASES

Appellant knows of no related cases.

Dated: June 28, 2018

Dan Escamilla
Appellant in Pro Se

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ECF CERTIFICATE OF SERVICE

I hereby certify that on June 28, 2018, I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the Ninth
Circuit by using the appellate CM/ECF system.

Participants in the case who are registered CM/ECF users will be served by
the appellate CM/ECF system. Any other counsel of record will be served by
electronic mail, facsimile, regular mail, email personal delivery and/or overnight

delivery upon their appearance in this matter and/or as directed by the Court
Dated: June 28, 2018

Dan Escamilla
Appellant in Pro Se

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