Lund v. Datzman ( 2020 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ERIC LUND individually and on No. 2:19-cv-02287-JAM-DMC behalf of other aggrieved 10 employees of the California Highway Patrol and SUSANNAH LUND 11 individually, ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ 12 Plaintiff, MOTIONS TO DISMISS 13 v. 14 JEFFREY DATZMAN, JOHN CARLI, JASON JOHNSON, STEVE CAREY, DAVID 15 KELLIS, MATT LYDON, MARK FERREIRA, CHRIS LECHUGA, WARREN STANLEY, 16 J.A. FARROW, NICK NORTON, SAMUEL DICKSON, STEVE WEST, KEVIN KNOPF, 17 HELENA WILLIAMS, KEVIN DOMBY, DAVID VARAO, RYAN DUPLISSEY, TOM 18 ANDRADE, JOHN BLENCOWE, ERIC BEAL, HAI LUC, WANONA IRELAND, KRISHNA 19 ABRAMS, ILANA SHAPIRO, and DOES 1- 40, individually and as public 20 employees, VACAVILLE POLICE DEPARTMENT, CALIFORNIA HIGHWAY 21 PATROL, SOLANO COUNTY DISTRICT ATTORNEY’S OFFICE, CITY OF 22 VACAVILLE, COUNTY OF SOLANO, and STATE OF CALIFORNIA, as public 23 entities, 24 Defendants. 25 Eric Lund (“Mr. Lund”) and Susannah Lund (collectively 26 “Plaintiffs”) filed a 185-page (including exhibits) Second 27 Amended Complaint (“SAC”) containing 73 causes of action against: 28 twenty-five individually named Defendants from the Vacaville 1 Police Department, California Highway Patrol, and the Solano 2 County District Attorney’s Office; against the agencies 3 themselves; and against the City of Vacaville, County of Solano, 4 and State of California (Collectively “Defendants”). See SAC, 5 ECF No. 43. Plaintiffs allege claims under 42 U.S.C. § 1983, the 6 California Constitution, and California tort law against 7 Defendants stemming from Mr. Lund’s arrest, prosecution, and 8 conviction of possession of child pornography. Id. 9 Before the Court are three separate motions to dismiss 10 Plaintiffs’ lengthy complaint from: (1) the Vacaville Police 11 Department, its individual defendants, and the City of Vacaville 12 (collectively “the Vacaville Defendants”), (2) the Solano County 13 District Attorney’s Office, its individual Defendants, and the 14 County of Solano (collectively “the Solano Defendants”), and 15 (3) the California Highway Patrol, its individual Defendants, and 16 the State of California (collectively “the State Defendants”). 17 See Vacaville Mot. to Dismiss (“Vacaville Mot.”), ECF No. 54; 18 Solano Mot. to Dismiss (“Solano Mot.”), ECF No. 53; State Mot. to 19 Dismiss (“State Mot.”), ECF No. 49. Plaintiffs oppose the three 20 motions. See Opp’n to Vacaville’s Mot. (“Vacaville Opp’n”), ECF 21 No. 59; Opp’n to Solano’ Mot. (“Solano Opp’n”), ECF No. 58; Opp’n 22 to State’ Mot (“State Opp’n”), ECF No. 57. For the reasons set 23 forth below, the Court GRANTS in part and DENIES in part 24 Defendants’ motions to dismiss Plaintiffs’ SAC.1 25 /// 26 27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for May 19, 2020. 1 I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND 2 The Court takes the facts, as best it can, from Plaintiffs’ 3 SAC. Because the SAC is unnecessarily voluminous and mixes 4 allegations and arguments in a confusing manner, the Court 5 “cannot be sure [it] ha[s] correctly understood all the 6 averments.” McHenry v. Renne, 84 F.3d 1172, 1174 (9th. Cir. 7 1996) (finding the Plaintiffs’ fifty-three page long complaint to 8 be confusing and unfairly burdensome). If the Court has not, 9 “[P]laintiffs have only themselves to blame.” Id. 10 Mr. Lund worked as a California Highway Patrolman (“CHP”) 11 for 26 years. SAC ¶ 50. Shortly before he planned to retire, 12 Mr. Lund was detained by Vacaville Police Officers after arriving 13 for duty at the Solano Area CHP office on October 16, 2014. Id. 14 ¶ 52. The Officers, Detective Jeffrey Datzman and Sergeant Steve 15 Carey, searched Mr. Lund’s vehicle pursuant to a search warrant. 16 Id. ¶ 54. The officers found a bag full of technology, including 17 a hard drive containing child pornography. Id. ¶¶ 55-56. The 18 officers arrested Mr. Lund for possession and distribution of 19 child pornography. Id. ¶ 58. 20 On November 3, 2014, Solano District Attorney Krishna Abrams 21 charged Mr. Lund with possession of child pornography. Id. ¶ 59. 22 Deputy District Attorneys Natasha Jontulovich and Ilana Shapiro 23 prosecuted the case against Mr. Lund. Id. ¶ 60. The first 24 trial, in June 2018, resulted in a hung jury, and a mistrial was 25 declared. Id. ¶ 61. Shapiro tried the case again in October 26 2018 and secured a conviction for possession of child 27 pornography. Id. ¶ 62. Mr. Lund was sentenced to five years in 28 state prison. Id. Mr. Lund appealed his sentence but that 1 appeal is still pending. Id. ¶ 63. His conviction has not been 2 invalidated in any way and he is currently serving his sentence 3 in state prison. 4 Plaintiffs factual allegations all stem from the search, 5 arrest, and prosecution of Mr. Lund’s conviction. Representing 6 herself and Mr. Lund, Mrs. Lund filed their initial complaint on 7 November 12, 2019. ECF No. 1. The Solano County Defendants 8 filed a motion to dismiss that complaint, ECF No. 27, but 9 Plaintiffs filed an amended complaint before a ruling could be 10 made on that motion, ECF No. 33. Defendants notified Plaintiffs 11 of their intent to seek dismissal of that complaint as well, so 12 the parties stipulated that Plaintiffs could file a SAC to try to 13 cure any deficiencies. ECF No. 37. The SAC, ECF No. 43 is the 14 subject of the present motions to dismiss. 15 16 II. OPINION 17 A. Legal Standard 18 Federal Rule of Civil Procedure 8(a)(2) requires “a short 19 and plain statement of the claim showing that the pleader is 20 entitled to relief.” Fed. R. Civ. Proc. 8(a)(2). Courts must 21 dismiss a suit if the plaintiff fails to “state a claim upon 22 which relief can be granted.” Fed. R. Civ. Proc. 12(b)(6). To 23 defeat a Rule 12(b)(6) motion to dismiss, a plaintiff must 24 “plead enough facts to state a claim to relief that is plausible 25 on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 26 (2007). This plausibility standard requires “factual content 27 that allows the court to draw a reasonable inference that the 28 defendant is liable for the misconduct alleged.” Ashcroft v. 1 Iqbal, 556 U.S. 662, 678 (2009). “At this stage, the Court 2 “must accept as true all of the allegations contained in a 3 complaint.” Id. But it need not “accept as true a legal 4 conclusion couched as a factual allegation.” Id. Lastly, a 5 plaintiff suing multiple defendants “must allege the basis of 6 his claim against each defendant” to satisfy the pleading 7 standards. Reyes ex. rel. Reyes v. City of Fresno, No. CV F 13- 8 0418 LJO SKO, 2013 WL 2147023, at *4 (E.D. Cal. May 15, 2013). 9 B. Judicial Notice 10 The State Defendants ask the Court to take judicial notice 11 of the government claims forms Plaintiffs filed with the 12 Department of General Services. See Req. for Judicial Notice 13 (“RJN”), ECF No. 65 & 69 (duplicate filing). Plaintiffs do not 14 oppose this request. Since this request is unopposed and 15 proper under Federal Rule of Evidence 201, the Court GRANTS 16 Defendants’ request. 17 C. Analysis 18 1. Section 1983 Claims 19 Plaintiffs assert numerous Section 1983 claims against the 20 State, Vacaville, and Solano Defendants. See City Opp’n, Exh. 21 1, ECF No. 59 (chart of all 73 claims). Defendants all oppose 22 these claims for the same reason—these claims are barred under 23 Heck v. Humphrey, 512 U.S. 477 (1994). See State Reply at 1; 24 Vacaville Reply at 1; Solano Reply at 3. 25 In Heck, the Supreme Court held that “to recover damages 26 for an allegedly unconstitutional conviction or imprisonment, or 27 for other harm caused by actions whose unlawfulness would render 28 a conviction or sentence invalid, a Section 1983 plaintiff must 1 prove that the conviction or sentence has been” reversed, 2 expunged, declared invalid, or called into question. 512 U.S. 3 at 487. In other words, if a Plaintiff brings a claim for 4 damages based on “a conviction or sentence that has not been so 5 invalidated,” the claim is not cognizable under Section 1983. 6 Id. Therefore, when a state prisoner seeks damages in a Section 7 1983 suit, the court “must consider whether a judgment in favor 8 of the plaintiff would necessarily imply the invalidity of his 9 conviction or sentence.” Id. If it would, the complaint must 10 be dismissed unless the plaintiff can demonstrate that the 11 conviction or sentence has already been invalidated. Id. 12 Otherwise, the action should be allowed to proceed unless there 13 another bar to the suit. Id. 14 It is uncontroverted that Mr. Lund’s conviction has not 15 been overturned, or otherwise invalidated. SAC ¶ 62. But 16 Plaintiffs argue that the “intent of this lawsuit is not to 17 challenge the fact of conviction or duration of incarceration.” 18 State Opp’n at 6. And that since they are pursuing claims that 19 do not “necessarily invalidate[]” Mr. Lund’s conviction, they 20 may proceed even if the facts they adduce could support a 21 reversal of his conviction. State Opp’n at 6. The Court 22 disagrees. 23 As each Defendant points out in its respective motion to 24 dismiss, Plaintiffs’ Section 1983 claims “are based on the 25 prerequisite that [Mr. Lund] was wrongfully investigated, 26 arrested, and convicted.” State Mot. at 8; see also SAC ¶¶ 293- 27 313, 359-420. Plaintiffs’ specific allegations include that: 28 exculpatory evidence was excluded; “Warrant E” was unlawfully 1 obtained based on an unreliable tool; the investigation was 2 faulty; “Warrant E” was improperly executed; evidence used 3 against him in trial was unlawfully seized; search of his desk 4 and locker lacked probable cause; his arrest was unlawful 5 because the evidence was insufficient and lacked probable cause; 6 his property was wrongfully seized pursuant to the warrant and 7 wrongfully delivered to the Court; a second warrant was based on 8 improper, incorrect, or tainted information; and his home was 9 unlawfully searched. Vacaville Mot. at 6. All of these 10 allegations are inextricably linked to Mr. Lund’s conviction and 11 necessarily imply the invalidity of that conviction. 12 Plaintiffs’ argument that Defendants “do not point to a single 13 cause of action in the SAC that directly seeks to invalidate” 14 Mr. Lund’s conviction, is without merit. Vacaville Opp’n at 4. 15 Plaintiffs also attempt to argue their claims are not 16 barred because they are simply arguing there was an “unlawful 17 arrest” and not denying that new evidence could have later 18 appeared that allowed a proper conviction. Vacaville Opp’n at 19 7. But Plaintiffs cite no authority for that contention. 20 Instead, in their three Opposition briefs, Plaintiffs attempt to 21 argue Heck does not apply because “subsequent caselaw has 22 continued to reaffirm the narrow application of the bar.” See 23 e.g., Solano Opp’n at 12. While they cite to cases that have in 24 fact narrowed the holding, Plaintiffs fail to demonstrate how 25 that narrowing applies to them or the specific facts of this 26 case. 27 The only Section 1983 claim the Court finds to not 28 implicate Mr. Lund’s conviction is the 63rd Cause of Action 1 related to the Solano County District Attorney’s Facebook Post. 2 See SAC 915-920. But the rest of Plaintiffs’ Section 1983 3 claims are DISMISSED WITH PREJUDICE. See Gompper v. VISX, Inc., 4 298 F.3d 893, 898 (9th Cir. 2002)(finding leave to amend need 5 not be granted when amendment would be futile). 6 2. State Law Causes of Action 7 Plaintiffs state law claims are also barred by Heck. See 8 Vacaville Mot. at 7-8, see also State Mot. at 7. While Heck is 9 a federal rule, the California Supreme Court determined the bar 10 applies to “a state tort claim arising from the same alleged 11 misconduct.” Yount v. City of Sacramento, 43 Cal. 4th 885, 902 12 (2008). 13 Plaintiffs concede that such a bar does exist against state 14 law claims. Vacaville Opp’n at 7. But they argue that as long 15 as Mr. Lund does not use this civil suit as “a vehicle to 16 overturn his conviction,” his claims should not be barred. Id. 17 at 9. Moreover, they argue Defendants’ cited cases are 18 distinguishable because success on the claims involved in those 19 cases necessarily invalidated an element of the state court’s 20 finding, whereas here, “none of the elements of child 21 pornography possession would be negated.” Id. At 8-9. 22 Plaintiffs misconstrue the holding in Yount; it does not 23 require that an element of the offense be necessarily 24 invalidated for the bar to the apply. Rather the court held “a 25 criminal defendant must obtain exoneration by postconviction 26 relief as a prerequisite to obtaining relief for the legal 27 malpractice that led to the conviction.” Yount, 43 Cal. 4th at 28 902. Here, Plaintiffs challenge a whole range of alleged “legal 1 malpractice[s]” that led to his conviction. And while the 2 California Supreme Court recognized this broad rule would 3 preclude recovery in many instances, it nevertheless found it 4 justified to promote judicial economy and to prevent “the 5 creation of two conflicting resolutions arising out of the same 6 or identical transactions.” Id. 7 As Defendants assert, Plaintiffs’ 56 state law causes of 8 action against them also “necessarily imply the invalidity of 9 [Mr. Lund’s] criminal conviction.” See e.g., Vacaville Mot. at 10 8. Indeed, all of Plaintiffs’ state law claims rely on the same 11 set of factual allegations as the Section 1983 claims. See 12 e.g., SAC ¶¶ 317-319 (The Common Law Abuse of Process claim is 13 premised on the same “material statements and omissions in 14 warrant” facts alleged for the first two Section 1983 claims). 15 As explained above, these factual allegations challenge: the 16 investigative techniques and tactics used to collect evidence 17 against Mr. Lund, the scope of the investigation, the validity 18 and sufficiency of the evidence used in his conviction, the 19 validity of his arrest and detention for the charges in which he 20 was convicted, the presentation of evidence at the criminal 21 proceeding, and the transmission and communication of evidence 22 the prosecution, among other things. See Vacaville Mot. at 8. 23 Even the claims that at first glance might not necessarily 24 invalidate Mr. Lund’s conviction, are also inextricably linked 25 to the aforementioned factual allegations. For example, the 26 causes of action stemming from the “private marital 27 communication” allegations are premised on the search of Mr. 28 Lund’s phone and his cross-examination at trial on evidence 1 obtained from that search. SAC ¶¶ 855-868. All of these 2 factual allegations therefore also directly attack the basis for 3 Mr. Lund’s conviction—regardless of Plaintiffs’ intention. Id. 4 The only two state law claims the Court finds to not implicate 5 Mr. Lund’s conviction are the claims related to the Solano 6 County District Attorney’s Facebook Post and the claim based on 7 CHP’s alleged interference with his pension (which are further 8 discussed below). The rest of Plaintiffs’ state law claims are 9 DISMISSED WITH PREJUDICE. 10 3. The Solano District Attorney’s Facebook Post 11 Plaintiffs assert claims for defamation (62nd cause of 12 action), Section 1983 (63rd cause of action), and California 13 Constitution violations (64th cause of action) against the Solano 14 Defendants based on a post made by the Solano County District 15 Attorney’s Office on Facebook. SAC ¶¶ 891-925. Defendants seek 16 to dismiss these claims for numerous reasons including: (1) 17 absolute immunity, (2) qualified immunity, (3) state law 18 immunity under California Government Code Section 821.6, and (4) 19 litigation privilege. See Solano Reply at 1-3. The Court will 20 only address the relevant immunities. 21 a. Absolute Immunity 22 Both state and federal prosecutors are absolutely immune 23 from Section 1983 claims stemming from not only the handling of 24 a case before or during trial, but also the post-trial handling 25 of a case. Demery v. Kupperman, 735 F.2d 1139, 1145 (9th Cir. 26 1984). This protection exists because “resentful defendants 27 [may] initiate suits irrationally or for purposes of harassment, 28 [and] they are just as likely to ascribe unconstitutional 1 purposes to the prosecutor’s post-trial acts before and during 2 trial.” Id. The Court finds that Plaintiffs’ Section 1983 3 claim, based on the Solano District Attorney’s Office’s post on 4 Facebook detailing Mr. Lund’s conviction, falls under the 5 protections of a post-trial handling of a case. Accordingly, 6 the Defendants against whom this claim is brought are absolutely 7 immune from this claim. The Court therefore DISMISSES this 8 Section 1983 claim WITH PREJUDICE. 9 b. Section 821.6 10 The Court finds the Solano Defendants are also immune from 11 the state law claims (62nd and 64th causes of action) because of 12 California Government Code Section 821.6. Solano Reply at 2-3. 13 Section 821.6 provides: “[a] public employee is not liable 14 for injury caused by his instituting or prosecuting any judicial 15 or administrative proceeding within the scope of his employment, 16 even if he acts maliciously and without probable cause.” Cal. 17 Gov. Code § 821.6. Immunity under this Section is not limited 18 to claims for malicious prosecution—“[it] extends to other 19 causes of action arising from conduct protected under the 20 statute, including defamation and intentional infliction of 21 emotional distress.” Roger v. County of Riverside, 44 Cal. App. 22 5th 510, 527 (Jan. 29, 2020). In determining whether such 23 immunity applies, the Court must consider whether the 24 allegations occurred during “part of the ‘prosecution’ of a 25 judicial proceeding within the meaning of Section 821.6.” Id. 26 Only “discretionary” prosecutorial acts are protected. Id. at 27 528. A discretionary act requires “personal deliberation, 28 decision and judgment.” Id. (internal citations omitted). 1 Ministerial acts, on the other hand, are those “in which the 2 officer is left no choice of his own.” Id. 3 The Court agrees with Plaintiffs that affirmative defenses, 4 such as those brought under Section 821.6, “may [only] be 5 considered properly on a motion to dismiss where the allegations 6 in the complaint suffice to establish the defense.” Sams v. 7 Yahoo! Inc., 713 F.3d 1175, 1179 (9th Cir. 2013). But such 8 allegations exist here. In Gillian v. City of San Marino, a 9 California court found that “[prosecutorial] [a]cts undertaken 10 in the course of investigation, including press releases 11 reporting the progress or results of the investigation, cannot 12 give rise to liability.” 147 Cal. App. 4th 1033, 1048 (2007). 13 Here, it is clear from the Complaint that Plaintiffs assert 14 claims for a Facebook post—the modern equivalent of a press 15 release—made by the prosecutors to report on “the results of 16 [their] investigation.” See SAC ¶¶ 891-911. Accordingly, the 17 Solano Defendants are immune from the state law claims stemming 18 from this discretionary prosecutorial act. The Court therefore 19 DISMISSES these claims WITH PREJUDICE. 20 4. Tortious Interference With Lund’s Pension 21 Plaintiffs allege the State Defendants tortiously 22 interfered with Mr. Lund’s pension because two of the State 23 Defendants conveyed “reckless inaccurate conclusions” that Mr. 24 Lund was prosecuted for a crime arising from his official 25 duties. SAC ¶¶ 1001-1011 (68th cause of action). The State 26 Defendants seek to dismiss this claim for several reasons. See 27 generally State Mot. However, these reasons are blanket 28 arguments focused on dismissing all state law claims asserted 1 against them, rather than just this specific claim. Therefore, 2 many of the arguments do not apply to the tortious interference 3 claim. 4 The Court does find, however, that the claim is barred by 5 the Eleventh Amendment, as the State Defendants contend. State 6 Mot. 15-16. Defendants specifically argue this bar applies to 7 the State and to the CHP as a state agency. State Reply at 5. 8 While Plaintiffs do respond to this argument in their 9 Opposition, they do so on pages 18-20. See State Opp’n 18-20. 10 As the Court noted when sanctioning Plaintiffs for violating its 11 page limits, the Court will not consider arguments made past 12 page 15 (the page limit). Minute Order Issuing Sanctions, ECF 13 No. 60. The Court therefore considers this argument to be 14 unopposed and DISMISSES this Claim as against the State and the 15 CHP WITH PREJUDICE. 16 However, the State Defendants fail to present any specific 17 argument in support of their motion to dismiss this claim 18 against individual Defendants Hai Luc and Wanona Ireland. 19 Because the Court has no basis upon which to dismiss this claim 20 against them, the case will proceed on this one claim as 21 asserted only against Luc and Ireland. 22 23 III. ORDER 24 For the reasons set forth above, the Court GRANTS IN PART 25 and DENIES IN PART Defendants’ Motions to Dismiss. All Defendants 26 and all causes of action are dismissed from this lawsuit with 27 prejudice except for the 68th cause of action as it applies to 28 individual Defendants Hai Luc and Wanona Ireland. These two C.4AT UV VECO VFAINIT LIVING PYVUUTTIOCIIL PO POM ree PAY Oe 1 individual Defendants shall file their response to the SAC within 2 twenty days of the date of this Order. 3 IT IS SO ORDERED. 4 Dated: June 30, 2020 kA et crac 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14