Ciria v. City and County of San Francisco ( 2024 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOAQUIN CIRIA, Case No. 4:22-cv-07510-KAW 8 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' 9 v. MOTION FOR SUMMARY JUDGMENT 10 CITY AND COUNTY OF SAN FRANCISCO, et al., Re: Dkt. No. 82 11 Defendants. 12 13 On February 8, 2024, Defendants City and County of San Francisco, James Crowley, 14 Arthur Gerrans, Nicholas Rubino filed a motion for summary judgment. 15 On May 2, 2024, the Court held a hearing, and, having considered the parties’ filings and 16 the relevant legal authorities, GRANTS IN PART AND DENIES IN PART Defendants’ motion 17 for summary judgment. 18 I. BACKGROUND 19 A. Factual Background1 20 Inspector Arthur Gerrans and Inspector James Crowley were assigned to investigate the 21 March 24, 1990 murder of Ruben Alfonso and the March 25, 1990 murder of Felix 22 “Carlos/Carlito” Bastarrica. (Decl. of James Crowley, “Crowley Decl.,” Dkt. No. 82-2 ¶ 3; Decl. 23 of Arthur Gerrans, “Gerrans Decl.,” Dkt. No. 82-27 ¶ 3). 24 25 1 The parties submitted a joint statement of facts on April 19, 2024. (Dkt. No. 104.) The Court 26 includes the citations provided by the parties, and citations to facts and exhibits that were not addressed in the joint statement. To the extent that certain facts do not contain citations, those have 27 been stipulated to in the joint statement of facts. To the extent that certain background facts 1 On the night of March 24, 1990 Ruben Alfonso was shot to death on the street in front of 2 the Star Hotel in the Mission District. Officer M. Torres made an incident report relating to this 3 killing and the incident report is dated March 24, 1990. (Crowley Decl. ¶ 9, Ex. 3.) 4 On Sunday March 25, 1990 at about 9:00 p.m., there was a killing in the South of Market 5 neighborhood in the vicinity of 254 Clara Street. Inspector Gerrans and Inspector Crowley 6 responded to the scene. (Crowley Decl. ¶¶ 4, 10, Ex. 2.) Clara Street is a one-way alley running in 7 part between 5th and 6th Streets in the South of Market neighborhood. Victim Felix Bastarrica 8 was shot in the vicinity of the driveway of the Bay Bridge Motel. Officer D.C. Murphy made an 9 incident report, which is dated March 25, 1990. (Incident Report 3/25/90, Crowley Decl. ¶ 11, Ex. 10 4.) During the investigation, the inspectors made handwritten notes dated March 25, 1990 of 11 speaking to Anthony Queen and Kenneth Duff. (Duff and Queen 3/25/90 notes, Crowley Decl. ¶ 12 13, Ex. 5.) 13 During the investigation, the inspectors made handwritten notes dated March 25, 1990 of 14 speaking to Kathleen Guevara. (Guevara 3/25/90, Crowley Decl. ¶ 14, Ex. 6.) 15 On March 25, 1990, the inspectors obtained a rap sheet for Felix Bastarrica. (Crowley 16 Decl. ¶ 16, Ex. 8.) On March 26, 1990, the inspectors pulled an SFPD incident report for 17 Bastarrica’s December 27, 1989 arrest at 2266 Cayuga Avenue (Incident No. 891681532). 18 (Crowley Decl. ¶ 21, Ex. 11, CCSF-CIRIA_000378-385.) The report references a December 27, 19 1989 drug seizure at the Amazon Hotel. (Crowley Decl. ¶ 21.) A December 27, 1989 incident 20 report for drug arrests at the Amazon Hotel (Incident No. 891680932) states that five people were 21 arrested at 5060 Mission Street, including Joaquin Ciria, who was listed as being 5’9”, 193 lbs., 22 and a “N/M,” i.e., Black. (Crowley Decl. ¶ 22, Ex. 12, CCSF-CIRIA_000388-391.) After 23 reviewing this incident report, the inspectors pulled a mugshot and rapsheet for Joaquin Ciria. 24 Identification records from SFPD indicated that Ciria’s place of birth was “Cuba.” (Crowley Decl. 25 ¶ 22, Ex. 14, CCSF-CIRIA_000243.) 26 On March 28, 1990, the inspectors met with Kathleen Guevara to have her view an array of 27 six mugshots of potential suspects. The mugshots included Joaquin Ciria’s mugshot from his 1 regarding this meeting with Kathleen Guevara. (Crowley Decl. ¶ 36, Ex. 27.) The notes explain 2 that Guevara picked out Plaintiff because his mug shot “looks the most like the suspect.” Id. 3 On April 13, 1990, Plaintiff and his attorney met with the inspectors. The meeting was not 4 recorded, but Inspector Gerrans made notes. (Ciria 4/13/1990 notes, Crowley Decl. ¶ 49, Ex. 45, 5 CCSF-CIRIA_000168-170.) 6 On April 17, 1990, the inspectors met with George Varela in the Homicide Detail for a 7 recorded interview. (4/17/90 Varela Interview Tr., Ohlheiser Decl. ¶ 3, Ex. 1; 4/17/90 Varela 8 Interview Audio, Crowley Decl. ¶ 51, Exs. 46-1, 46-2, 46-3.) 9 On April 18, 1990, Inspector Crowley prepared and swore out an affidavit requesting a 10 search warrant for Plaintiff’s residence, as well as a criminal complaint, and an affidavit in support 11 of the issuance of a warrant for Plaintiff’s arrest. (Crowley Decl. ¶¶ 64-65.) On April 18, 1990, 12 Municipal Court Judge Mary Morgan signed both warrants. (Case Chronology, Crowley Decl. ¶ 4, 13 Ex. 2 at CCSF-CIRIA-000053; Search warrant with affidavit, Crowley Decl. ¶ 64, Ex. 50; Arrest 14 warrant, Crowley Decl. ¶ 65, Ex. 51.) 15 On April 19, 1990, Inspector Gerrans completed an incident report relating to the 16 execution of a search warrant at 159 Sickles Street. (Crowley Decl. ¶ 69, Ex. 55, CCSF- 17 CIRIA_000078-79). 18 On April 19, 1990, Officer Nicolas Rubino completed an incident report relating to the 19 arrest of Ciria. (Rubino Decl. ¶ 17, Ex. D, CCSF-CIRIA_000095-96). 20 There is no documented communication between Officer Rubino and the inspectors 21 regarding Plaintiff until April 19, 1990, the day of Plaintiff’s arrest. (Rubino Decl. ¶ 18; Gerrans 22 Decl. ¶ 71; Crowley Decl. ¶ 71; Pl.’s Resp. to Defs.’ Reqs. for Admission Nos. 5-6, Wiener Decl. 23 ¶ 4, Ex. C.) 24 On April 19, 1990, following Ciria’s arrest, the inspectors made a tape-recorded interview 25 with Ciria. During that interview, the inspectors stated that they visited Galan’s Bar the prior day. 26 They stated that they spoke with a bartender and that the bartender said that the person who was 27 bartending on March 25, 1990 was in the hospital. (Audio, Crowley Decl. ¶ 68, Ex. 52; 4/19/90 1 On April 19, 1990, the inspectors conducted a tape-recorded interview with Kristina 2 Martin. (Martin Audio, Crowley Decl. ¶ 74, Ex. 61; Martin 4/19/90 Tr., Crowley Decl. ¶ 74, Ex. 3 62.) Martin was Varela’s girlfriend, and she told the inspectors that Varela told her a day or two 4 after the shooting that “he was just giving Joaquin a ride somewhere, and Joaquin got out. And he 5 seen this man that, I guess, supposedly had killed his friend or something. And he got out, and he 6 was arguing with him. And I guess he just shot him.” (Crowley Decl. ¶ 74.) 7 During the investigation, the inspectors made notes, dated April 26, 1990, of a line-up 8 identification procedure with Kathleen Guevara. (4/26/90 1855 Guevara notes, Crowley Decl. ¶ 9 76, Ex. 66, CCSF-CIRIA_151). Guevara selected Plaintiff and wrote the word “possible.” Id. She 10 then told the inspectors, “I am not 100% sure. I am almost sure- about 80%. I know #4 was the 11 same photo I had picked out before…. I wrote the word ‘possible’ because I knew I had seen this 12 man’s photo before.” Id. Also on April 26, 1990, Guevara signed a document titled “Line Up 13 Record / Instructions for Line-Up Witnesses.” (Crowley Decl. ¶ 76, Ex. 65.) 14 Following his April 19, 1990 booking, Plaintiff was arraigned on April 24, 1990. (Decl. of 15 Louis Lipset, “Lipset Decl.,” Dkt. No. 23-30 ¶ 3, Ex. A at D.A. 005613.) Plaintiff’s preliminary 16 hearing occurred on September 4, 1990. Kathleen Guevara, Kenneth Duff, and the medical 17 examiner testified. (9/4/90 Tr., Wiener Decl. ¶ 7, Ex. E.) The Superior Court found probable cause 18 to hold Plaintiff over for trial. Id. Plaintiff’s murder trial began on February 4, 1991. (Wiener 19 Decl. ¶ 19, Ex. Q at 656.) On February 20, 1991, Plaintiff was convicted for Bastarrica’s murder. 20 (Compl. ¶ 2, Wiener Decl. ¶ 8, Ex. F at CIRIA003146-47, RT 956-57. 21 Plaintiff filed a Petition for Writ of Habeas Corpus in the Superior Court for the County of 22 San Francisco on January 19, 2021. Plaintiff’s conviction was vacated on April 18, 2022. (4/19/22 23 Superior Court Order and 4/18/22 Superior Court Minutes, Ohlheiser Decl. ¶ 41, Ex. 39.) Plaintiff 24 was released from custody on April 20, 2022. 25 Plaintiff presented a pre-litigation Government Claim on September 19, 2022. ECF No. 26 82-29 at p. 41; 76-97 (Claim, Wiener Decl. ¶ 9, Ex. G.) 27 B. Procedural Background 1 of San Francisco, San Francisco Police Department, Arthur Gerrans, James Crowley, and Nicolas 2 J. Rubino, asserting civil rights claims based on his wrongful incarceration of more than thirty 3 years. (Compl. ¶¶ 1-2, Dkt. No. 1.) 4 On February 8, 2024, Defendants filed a motion for summary judgment. (Defs.’ Mot., 5 Dkt. No. 82.) On March 7, 2024, Plaintiff filed an opposition. (Pl.’s Opp’n, Dkt. No. 89.) On 6 March 22, 2024, Defendants filed a reply. (Defs.’ Reply, Dkt. No. 95.) Therein, Defendants raised 7 a myriad of objections to Plaintiff’s evidence, so, on April 11, 2024, the Court ordered Defendants 8 to file formal objections. (See Dkt. No. 99.) On April 15, 2024, Defendants filed formal 9 objections. (Defs.’ Obj., Dkt. No. 101.) On April 22, 2024, Plaintiff responded to Defendants’ 10 objections. (Pl.’s Obj. Resp., Dkt. No. 106.) 11 On April 1, 2024, Plaintiff filed a statement of recent decision. (Dkt. No. 97.) On April 11, 12 2024, the Court ordered Plaintiff to file a supplemental brief addressing the filing. (Pl.’s Suppl. 13 Br., Dkt. No. 102.) On April 22, 2024, Defendants filed a supplemental brief in response. (Defs.’ 14 Suppl. Br., Dkt. No. 105.) 15 II. LEGAL STANDARD 16 A party may move for summary judgment on a “claim or defense” or “part of... a claim or 17 defense.” Fed. R. Civ. P. 56(a). Summary judgment is appropriate when, after adequate 18 discovery, there is no genuine issue as to material facts and the moving party is entitled to 19 judgment as a matter of law. Id.; see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). 20 Material facts are those that might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 21 477 U.S. 242, 248 (1986). A dispute as to a material fact is “genuine” if there is sufficient 22 evidence for a reasonable jury to return a verdict for the nonmoving party. Id. 23 A party seeking summary judgment bears the initial burden of informing the court of the 24 basis for its motion, and of identifying those portions of the pleadings and discovery responses 25 that demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Where 26 the moving party will have the burden of proof at trial, it must affirmatively demonstrate that no 27 reasonable trier of fact could find other than for the moving party. Southern Calif. Gas. Co. v. City 1 On an issue where the nonmoving party will bear the burden of proof at trial, the moving 2 party may discharge its burden of production by either (1) “produc[ing] evidence negating an 3 essential element of the nonmoving party's case” or (2) after suitable discovery “show[ing] that the 4 nonmoving party does not have enough evidence of an essential element of its claim or defense to 5 discharge its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd., v. Fritz 6 Cos., Inc., 210 F.3d 1099, 1103 (9th Cir. 2000); see also Celotex, 477 U.S. 324-25. 7 Once the moving party meets its initial burden, the opposing party must then set forth 8 specific facts showing that there is some genuine issue for trial in order to defeat the motion. See 9 Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 250. “A party opposing summary judgment may not 10 simply question the credibility of the movant to foreclose summary judgment. Anderson, 477 U.S. 11 at 254. “Instead, the non-moving party must go beyond the pleadings and by its own evidence set 12 forth specific facts showing that there is a genuine issue for trial.” Far Out Prods., Inc. v. Oskar, 13 247 F.3d 986, 997 (9th Cir. 2001) (citations and quotations omitted). The non-moving party must 14 produce “specific evidence, through affidavits or admissible discovery material, to show that the 15 dispute exists.” Bhan v. NMS Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991). Conclusory or 16 speculative testimony in affidavits and moving papers is insufficient to raise a genuine issue of 17 material fact to defeat summary judgment. Thornhill Publ’g Co., Inc. v. Gen. Tel. & Electronics 18 Corp., 594 F.2d 730, 738 (9th Cir. 1979). 19 In deciding a motion for summary judgment, a court must view the evidence in the light 20 most favorable to the nonmoving party and draw all justifiable inferences in its favor. Anderson, 21 477 U.S. at 255; Hunt v. City of Los Angeles, 638 F.3d 703, 709 (9th Cir. 2011). 22 III. DISCUSSION 23 A. Claims against Nicholas Rubino 24 At the hearing, Plaintiff confirmed that the only claim he was still asserting against Officer 25 Rubino is the second cause of action for nondisclosure of evidence. Accordingly, summary 26 judgment is granted as to all other claims against Defendant Rubino. 27 B. Nondisclosure claim 1 Plaintiff contends that Gerrans, Crowley, and Rubino deprived him of a fair trial by withholding 2 exculpatory materials and impeachment evidence from Ciria and prosecuting attorneys in violation 3 of Brady v. Maryland, 373 U.S. 83 (1963) and the Fourteenth Amendment. (Compl. ¶ 103.) They 4 allegedly did this by concealing exculpatory and/or impeachment evidence including: a $10,000 5 payment to Guevara for a positive identification of Ciria through the SFPD’s “Secret Witness 6 Program,” known and unknown material benefits to Varela in exchange for false testimony for 7 implicating Ciria, detailed surveillance information collected by Rubino and others demonstrating 8 his innocence by placing him at home during the time of the murder, and that Defendants 9 intentionally withheld information demonstrating that there was no positive eyewitness 10 identification. (Compl. ¶ 104.) 11 To prevail on a claim under Brady, the plaintiff must prove that “(1) the withheld evidence 12 was favorable either because it was exculpatory or could be used to impeach, (2) the evidence was 13 suppressed by the government, and (3) the nondisclosure prejudiced the plaintiff.” Smith v. 14 Almada, 640 F.3d 931, 939 (9th Cir. 2011). Evidence is material “if there is a reasonable 15 probability that, had the evidence been disclosed to the defense, the result of the proceeding would 16 have been different.” Bailey v. Rae, 339 F.3d 1107, 1115 (9th Cir. 2003) (internal quotation marks 17 and citation omitted). In order to show prejudice, the plaintiff need not show that it is more likely 18 than not that the withheld evidence would have resulted in his acquittal, but only that the withheld 19 evidence “could reasonably be taken to put the whole case in such a different light as to undermine 20 confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419, 435 (1995). 21 In his opposition, Plaintiff narrowed this claim to Defendants’ withholding material 22 information regarding his appearance and whereabouts the night of the murder and the 23 withholding of exculpatory surveillance information that would have confirmed his alibi. (Pl.’s 24 Opp’n at 29-31.) Neither of these theories are actionable. 25 First, the issue of Plaintiff’s appearance was known to Plaintiff, and the hairstyle 26 discrepancy was litigated at trial, so even if Crowley and Gerrans did not take notes of witness 27 statements that described Plaintiff’s clothing and hairstyle differently at Galan’s Bar than as 1 no reasonable probability that disclosure would have changed the outcome. (See Defs.’ Reply at 2 16-17.) Even if there was, it is not “beyond debate” that the Constitution was violated based on 3 these particular facts, since it was arguable that this information was known to Plaintiff. See 4 Ashcroft v. al–Kidd, 563 U.S. 731, 741 (2011). 5 Second, Plaintiff’s only evidence that the San Francisco Police Department engaged in a 6 massive three-month surveillance operation, and that SFPD officers were parked outside his home 7 on the night of the murder is his own deposition testimony. (See Pl.’s Opp’n at 32.) Specifically, 8 Plaintiff testified that he knew he was being surveilled because his “street sense” told him they 9 were police and the undercover cars had “E” government license plates. (Pl.’s Ciria Dep., 10 Ohlheiser Decl. ¶ 52, Ex. 50 at 281:17-282:25.) 11 “[I]f the factual context renders respondents' claim implausible… [the plaintiff] must come 12 forward with more persuasive evidence to support their claim than would otherwise be necessary.” 13 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 14 L. Ed. 2d 538 (1986). Defendants put forth sufficient evidence to rebut Plaintiff’s conclusion that 15 he was not only surveilled but that the surveillance confirmed that he was home at the time of the 16 murders through the declaration of John Tursi. Tursi worked in the Narcotics Detail from 1988 to 17 1995, and, after his retirement, continues to work there part-time. (Tursi Decl., Dkt. No. 82-36 ¶ 18 2.) Tursi explained that, in 1989 and 1990, the Narcotics Detail was the division responsible for 19 any surveillance operation lasting more than a day or two and for any operations that went beyond 20 the 10 police districts. (Tursi Decl. ¶ 3.) Furthermore, in 1989 and 1990, the Narcotics Detail 21 never engaged in surveillance for months at a time, and that it was rare for any surveillance to last 22 for more than a week. (Tursi Decl. ¶ 4.) Tursi further explained that the Narcotics Detail never 23 used cars with an “E” license plate, because that would immediately reveal law enforcement 24 activity, and the Narcotics Detail personnel were not well-groomed while doing undercover 25 surveillance. (Tursi Decl. ¶ 5.) Instead, they did their “best to look like drug dealers and drug 26 users, or members of the community [they] were working in, and otherwise not like police.” Id. 27 This declaration directly contradicts Plaintiff’s testimony that he knew he was being surveilled 1 believed he was under surveillance, he has not provided persuasive evidence to support his 2 testimony—in fact, his testimony defies common sense—which falls short of what is required to 3 create a genuine factual dispute on summary judgment even when making all reasonable 4 inferences in favor of the nonmoving party. 5 Accordingly, summary judgment is granted as to the nondisclosure cause of action.2 6 C. Fabrication of Evidence claim 7 The first cause of action for fabrication of evidence claim is asserted against all defendants. 8 “To prevail on a § 1983 claim of deliberate fabrication, a plaintiff must prove that (1) the 9 defendant official deliberately fabricated evidence and (2) the deliberate fabrication caused the 10 plaintiff’s deprivation of liberty.” Spencer v. Peters, 857 F.3d 789, 798 (9th Cir. 2017). 11 Defendants contend that Plaintiff cannot prove either element, and that even if he could, the 12 officers are entitled to qualified immunity. (Defs.’ Mot. at 21-26.) 13 A plaintiff may establish the first element of a fabrication claim – that the defendants 14 deliberately fabricated evidence – by direct evidence such as “direct misquotation of witnesses in 15 investigative reports.” Spencer, 857 F.3d at 799. Alternatively, a plaintiff may show that the 16 defendants continued their investigation of the plaintiff “despite the fact that they knew or should 17 have known that he was innocent,” or that the defendants “used investigative techniques that were 18 so coercive and abusive that they knew or should have known that those techniques would yield 19 false information.” Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001); see also Spencer, 20 857 F.3d at 799 (quoting Devereaux). 21 As the parties moving for summary judgment, Defendants have the initial burden to show 22 that Plaintiff cannot prove that Crowley and Gerrans deliberately fabricated evidence. As an initial 23 matter, despite Defendants’ argument to the contrary, they did not have “ample evidence that 24 Plaintiff was Bastarrica’s murderer” at the time of George Varela’s interview on April 17, 1990. 25 (See Defs.’ Mot at 24-25.) As discussed in more detail below, while Crowley and Gerrans may 26 not have fabricated the eyewitness identifications of Guevara and Duff, the identification process 27 1 were suggestive and the identifications themselves were later presented at the preliminary hearing 2 as being more reliable than they actually were. See discussion, infra, Part III.D.i.b. 3 i. Whether the Varela Interview was Coercive 4 Defendants first argue that Crowley and Gerrans did not coerce Varela into naming 5 Plaintiff, because he told his girlfriend three weeks earlier that Plaintiff was the shooter. (Defs.’ 6 Mot. at 22.) This argument is unavailing, because Kristina Martin did not “confirm” that Varela 7 named Plaintiff as the shooter until after Plaintiff’s arrest. (See Crowley Decl. ¶ 74.) Given that 8 Martin testified at deposition that she had no recollection of what Varela told her about the 9 shooting, and surmised that she was repeating what Varela had said, a reasonable jury could 10 conclude that Varela told Martin what to say. (See Pl.’s Opp’n at 21-22 (citing Pl.’s Martin Dep.3 11 at 14:2-5.) 12 Nonetheless, the crux of Defendants’ argument is that the Varela interview was not “so 13 coercive and abusive that [they] knew or should have known that those techniques would yield 14 false information.” (Defs.’ Mot. at 23 (quoting Devereaux, 263 F.3d at 1076).) Defendants 15 suggest that law enforcement needs to engage in extreme or aggressive conduct to find coercion 16 under the Devereaux line of cases, but courts in this district have not imposed such a stringent 17 requirement. See Truelove v. City and County of San Francisco, No. 16-cv-050 YGR, 2018 WL 18 3429113, at *3 (N.D. Cal. July 16, 2018). Indeed, it can be enough to threaten to charge the 19 witness with murder if they did not provide the desired information. Id. (citing Gantt v. City of Los 20 Angeles, 717 F.3d 702, 708 (9th Cir. 2013). 21 Here, Defendants argue that Crowley and Gerrans “never threatened to make Varela’s 22 predicament worse than it already was, by virtue of Varela’s having driven his car used in the 23 murder and lying about it.” (Defs.’ Mot. at 23.) Defendants claim that they only told “Varela the 24 advantages of telling the truth in his situation,” which was proper. Id. at 23-24. The Varela 25 interview transcript, however, belies any assertion that he was not threatened. Varela initially told 26 the inspectors that he was with Ciria the night of the murder, but that he drove him home in his 27 1 very identifiable vehicle (a Monte Carlo with body damage) prior to the time of the murder, which 2 corroborated Ciria’s alibi that he was home at the time of Bastarrica’s murder. (4/17/90 Varela 3 Interview Tr. at 14-17, 21-22.) 4 When that information was not consistent with the inspectors’ theory of the case, Crowley 5 and Gerrans threatened to charge Varela with murder if he did not identify Plaintiff as the shooter: 6 Inspector: Okay I want to tell you something. Do you understand how the law works-- can you look at me? 7 Varela: Hm? 8 Inspector: Can you look at me? You understand how the law 9 Works, if -- if two people go out together, alright? And they take type -- any type of action 10 where -- you said you don't know, in your mind, you don't know that Joaquin was planning on killing 11 somebody. Just say you go with Joaquin, and in your mind you know that he's either going beat a 12 guy, he's going to beat somebody up, or maybe he's going to rob somebody, or maybe he's going to thump 13 somebody, or kick his ass So you don’t know, in your mind, you're not planning on killing him. 14 Okay? So you go with him, and you're -- you know that Joaquin is going maybe jump on somebody and 15 beat the shit out of somebody. And just say you're driving the car, and Joaquin gets out and he shoots 16 somebody, and you're driving that car alright? You could be tried for murder. You could be tried 17 as being a part of the murder because you would be a principle in the murder, or you could be tried as 18 an accessory to the murder which means that you helped somebody in _________ 19 20 (4/17/90 Varela Interview Tr. at 25 (emphasis added).) The inspector continued: 21 Alright, well,-- alright, we've talked to some people, okay? Okay. There were some people 22 sitting there in that alley. Two guys, okay? And they saw. They saw the driver, saw a passenger, 23 they saw a car go by, a car come back around, a car go back down the alley. You got yourself into a 24 situation, you know, and we know you didn't do it. But if you're going to continue to sit in here and 25 lie and cover up for Joaquin, you're going to be in some deep shit, because we know -- we don't speak 26 Spanish, we know who got out of the car, we have witnesses because – see, the problem was he argued 27 and fought out there with a guy and yelled and _____- sitting out watching, and you're yelling 1 back and forth in Spanish. You know. And you have went there _____ want to see somebody and you 2 didn't know what went down. _____ went down The shit went down, it went sour, he shot, he 3 jumped back in your car, and you drove off and that's exactly what happened. And be honest with 4 us son. You're only 18 years old, you've been shit as a juvenile, you don't want to get in shit as an 5 adult – hey. 6 (4/17/90 Varela Interview Tr. at 26 (emphasis added).) Varela merely responded, “Alright.” Id. 7 Gerrans then told him, “What you ought to do is tell us exactly what happened. No lies. For your 8 own good, son. Okay? It’s best for you to tell us exactly what went down. We know you didn’t do 9 it. We know---” (4/17/90 Varela Interview Tr. at 26.) To which Varela responded, “I didn’t know 10 what was going to happen. I didn’t know what was going to_______ Hey, whatever you said.” Id. 11 In totality, a jury could find that the inspectors’ conduct was coercive enough to constitute 12 a fabrication of evidence. First, Varela was only 18 years old. Second, the inspectors threatened to 13 charge Varela with murder for driving the Monte Carlo, and then told him exactly what he needed 14 to say to avoid being charged. Third, while he initially appeared at the interview voluntarily, the 15 tape recording and transcript indicates that Varela did not feel free to leave, because he asked, 16 “Can I go home after this?” (4/17/90 Varela Interview Tr. at 28.) The response was, “After we 17 talk? Yeah. Yeah.” Id. Varela then told the inspectors in his own words happened, while 18 identifying Plaintiff as the shooter. Id. Later, Varela confirmed that he was talking to them 19 because he wanted to be a witness rather than a suspect: 20 Crowley: Okay. So, when you came here today and you began to talk to us and we told you we suspected that you were with him, is 21 that correct? 22 Varela: Yeah. 23 Crowley: And you did not want to be considered as being part of this, as a suspect in this case, rather than a witness in this case, is that 24 correct? 25 Varela: Right. 26 Crowley: Huh? 27 Varela: That’s right. were a witness and you weren’t involved. 1 Varela: I just saw. If I would have been involved, I wouldn’t have 2 come down here saying what I said. I wouldn’t even’ve came down here, I would have left. 3 4 (4/17/90 Varela Interview Tr. Tape #3, Ohlheiser Decl. ¶ 45, Ex. 43 at 14-15.) 5 Unlike the Devereaux line of cases, the Varela interview went beyond explaining to a 6 witness the advantages of telling the truth; it involved inspectors threatening an 18-year-old, who 7 had a juvenile record, with an adult murder charge for driving a vehicle they knew was involved in 8 the Bastarrica murder. Then, they told him exactly what information was necessary to protect 9 himself from that adult murder charge and to, instead, serve as a witness. In Gantt, the Ninth 10 Circuit found that the threat of a murder charge combined with the witness’s claim that he had 11 been awake for two straight days on a crack binge was sufficient under Devereaux for the claim to 12 go to the jury. Gantt, 717 F.3d at 708 (quoting Devereaux, 263 F.3d at 1076). Here, the threat of a 13 murder charge when they established that Varela and his car were at the scene of the shooting, 14 along with feeding him the story he needed to tell to avoid it, could lead a jury to find that 15 Crowley and Gerrans should have known that their techniques would yield false information. 16 ii. Qualified Immunity 17 While acknowledging that Devereaux established a general right to not be charged based 18 on deliberately fabricated evidence, Defendants argue that Plaintiff must identify case law in 1990 19 that clearly established to the inspectors that they knew they were violating Devereaux. (Def.’s 20 Mot. at 26.) 21 In opposition, Plaintiff argues that Devereaux found “that there is a clearly established 22 constitutional due process right not to be subjected to criminal charges on the basis of false 23 evidence that was deliberately fabricated by the government.” (Pl.’s Opp’n at 24 (citing 24 Devereaux, 263 F.3d at 1074–75).) Moreover, Plaintiff argues that it was well established prior to 25 1990 that improper investigative techniques include psychological coercion through threats and 26 promises. (Pl.’s Opp’n at 25.) Citing United States v. Tingle, Plaintiff contends that “a confession 27 ‘must not be extracted by any sort of threats or violence, nor obtained by any direct or implied 1 States v. Tingle, 658 F.2d 1332, 1335 (9th Cir. 1981) (quoting Malloy v. Hogan, 378 U.S. 1, 8 2 (1964)).) While Tingle was a Fifth Amendment case, Plaintiff argues that “[t]he same principles 3 have long been recognized under the Fourteenth Amendment.” (Pl.’s Opp’n at 26 (citing cases).) 4 At his deposition, Crowley acknowledged that he understood that psychologically coercive 5 interrogation techniques are inappropriate because “you don’t want to lead a person into giving 6 you false information to protect himself or herself.” (Pl.’s Crowley Dep., Ohlheiser Decl. ¶ 7, Ex. 7 5 at 45:3-8.) Based on these cases cited by Plaintiff and others contained in his briefing, the Court 8 finds that it was clearly established in 1990 that Crowley and Gerrans should have known that 9 they were eliciting false evidence from Varela through their interrogation techniques, so they are 10 not entitled to qualified immunity. 11 D. Malicious Prosecution claim 12 The third cause of action for malicious prosecution claim is asserted against all defendants. 13 Defendants argue that Plaintiff cannot establish the elements of his malicious prosecution claim, 14 and that even if he could, the officers are entitled to qualified immunity. (Defs.’ Mot. at 18.) In 15 opposition, Plaintiff argues that there is sufficient evidence to proceed to trial on the malicious 16 prosecution claim and that the officers are not entitled to qualified immunity. (Pl.’s Opp’n at 25, 17 28.) 18 “In order to prevail on a § 1983 claim of malicious prosecution, a plaintiff must show that 19 the defendants prosecuted [him] with malice and without probable cause, and that they did so for 20 the purpose of denying [him] equal protection or another specific constitutional right.” Lassiter v. 21 City of Bremerton, 556 F.3d 1049, 1054 (9th Cir. 2009) (internal quotation marks and citation 22 omitted, alterations in original). 23 Federal courts look to state law to define these elements of a § 1983 malicious prosecution 24 claim. See Rezek v. City of Tustin, 684 F. App’x 620, 621 (9th Cir. 2017) (“However, the elements 25 of Rezek’s malicious prosecution claims are controlled by California state law.”); Awabdy v. City 26 of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004) (“[W]e have incorporated the relevant elements 27 of the common law tort of malicious prosecution into our analysis under § 1983.”); Usher v. City 1 1983 malicious prosecution claim). 2 In addition to the elements listed above, “[a]n individual seeking to bring a malicious 3 prosecution claim must generally establish that the prior proceedings terminated in such a manner 4 as to indicate his innocence.” Awabdy, 368 F.3d at 1068. A criminal defendant may sue not only 5 the prosecutor for malicious prosecution, but also police officers and investigators who wrongfully 6 caused his prosecution. See Usher, 828 F.3d at 562 (reversing dismissal of § 1983 malicious 7 prosecution claim against arresting officers and city). 8 As the parties moving for summary judgment, Defendants have the initial burden to show 9 that Plaintiff cannot prove these elements. The requirement that the prior proceedings terminated 10 favorably is undisputed, as this has already been addressed as a matter of law. (8/25/23 Order 11 Granting Mot. for Reconsideration, Dkt. No. 56 at 5.) 12 i. Probable Cause determination 13 First, Defendants argue that probable cause existed, which defeats this claim against all 14 defendants. (Defs.’ Mot. at 18.) “[P]robable cause is an absolute defense to malicious 15 prosecution.” Lassiter v. City of Bremerton, 556 F.3d 1049, 1054-55 (9th Cir. 2009). “Probable 16 cause ‘is not a high bar.’” District of Columbia v. Wesby, 583 U.S. 48, 57 (2018) (quoting Kaley v. 17 United States, 571 U.S. 320, 338 (2014)). It “requires only a probability or substantial chance of 18 criminal activity, not an actual showing of such activity.” Wesby, 583 US. At 57 (quoting Illinois 19 v. Gates, 462 U.S. 213, 232 (1983) (internal quotations omitted)). 20 “Generally, ‘the existence of probable cause is a question for the jury,’ though summary 21 judgment is appropriate when there is no genuine issue of fact and if ‘no reasonable jury could 22 find an absence of probable cause under the facts.’” Johnson v. Barr, 79 F.4th 996, 1003 (9th Cir. 23 2023) (quoting Gasho v. United States, 39 F.3d 1420, 1428 (9th Cir. 1994). 24 Plaintiff argues that Defendants did not have probable cause to arrest him, because they did 25 so without trustworthy information that he had committed the Bastarrica murder. (Pl.’s Opp’n at 26 25.) The Court agrees. 27 a. Search and Arrest Warrant Applications 1 search warrant for Plaintiff’s residence, as well as a criminal complaint, and an affidavit in support 2 of the issuance of a warrant for Plaintiff’s arrest. (Crowley Decl. ¶¶ 64-65.) On April 18, 1990, 3 Municipal Court Judge Mary Morgan signed both the search warrant and the arrest warrant. (Case 4 Chronology, Crowley Decl. ¶ 4, Ex. 2 at CCSF-CIRIA-000053; Search warrant with affidavit, 5 Crowley Decl. ¶ 64, Ex. 50; Arrest warrant, Crowley Decl. ¶ 65, Ex. 51.) At the hearing, when 6 questioned about the absence of Crowley’s sworn affidavit in support of the arrest warrant, 7 Defendants explained that it was not included in the file and must have gotten lost. On summary 8 judgment, the Court must view the evidence in the light most favorable to the nonmoving party 9 and make all justifiable inferences its favor. Anderson, 477 U.S. at 255. Thus, since the 10 “Chronological Report of Investigation” indicates that the warrants were prepared and sworn out 11 together, and the affidavit was in Defendants’ possession, the Court will justifiably infer that 12 Crowley relied on the same probable cause statement in support of the arrest warrant as he did in 13 support of the search warrant. (See Crowley Decl. ¶¶ 64-65; Case Chronology at CCSF-CIRIA- 14 000053.) 15 Defendants’ motion and oral argument focused on the “ample evidence” and “voluminous 16 information that inspectors learned that implicated Plaintiff as Bastarrica’s murderer,” which they 17 argue add up to probable cause. (See Defs.’ Mot. at 24-25; Defs.’ Reply at 2.) This argument, 18 however, is inconsistent with Ninth Circuit legal authority. In fact, as Plaintiff argued at the 19 hearing, the determination of whether a warrant was properly issued based on probable cause is 20 limited to the facts contained in the warrant’s affidavit. See Butler v. Elle, 281 F.3d 1014, 1020, 21 1023-24 (9th Cir. 2002) (only addressed facts in accompanying affidavit to determine existence of 22 probable cause); Ewing v. City of Stockton, 588 F.3d 1218, 1223-24 (9th Cir. 2009) (probable 23 cause analysis limited to affidavit). Outside evidence not cited in the warrant cannot sustain the 24 warrant. Baldwin v. Placer Cnty., 418 F.3d 966, 971 (9th Cir. 2005) (citing United States v. Davis, 25 714 F.2d 896, 899 (9th Cir. 1983)). Indeed, “[t]he fact that probable cause did exist and could 26 have been established by a truthful affidavit does not cure the error.” United States v. Davis, 714 27 F.2d at 899. 1 cited the same facts as those in the affidavit in support of the concurrently issued, search warrant. 2 Crowley’s search warrant affidavit relied entirely on the Varela interview and only briefly 3 mentioned Plaintiff’s April 13, 1990 voluntary interview. (Affidavit, Crowley Decl. ¶ 64, Ex. 50 at 4 CCSF-CIRIA 000257-258.) As discussed above, the Court finds that the Varela interview could 5 reasonably be found to have been coercive and, therefore, fabricated. See discussion, supra, Part 6 III.C.i. To sustain a warrant despite false or fabricated evidence, courts must purge false 7 statements to determine whether the remaining facts justify the issuance of the warrant. Ewing, 8 588 F.3d at 1224 (citing Baldwin, 418 F.3d at 971). Here, after removing the information elicited 9 from the Varela interview, all that remained was that Plaintiff was interviewed with his attorney 10 and identified Varela as an alibi witness. (Affidavit at CCSF-CIRIA 000257.) This falls far short 11 of what is required for a finding of probable cause to arrest, and it is sufficient to create a triable 12 issue of fact as to whether there was probable cause to prosecute. 13 b. Other information purportedly known to Defendants 14 Despite the Ninth Circuit limiting the probable cause analysis to the face of the warrant, to 15 the extent that Defendants argue that the challenged witness identifications effectively tied 16 Plaintiff to the crime, the Court finds that the identification procedures employed by Crowley and 17 Gerrans were suggestive and unreliable. Guevara did not positively identify Plaintiff as the 18 shooter through either the photo array or at the live lineup. On March 28, 1990, Guevara only said 19 that Plaintiff’s photo “looks the most like the suspect.” (Crowley Decl. ¶ 36, Ex. 27.) Then, on 20 April 26, 1990, Guevara picked Plaintiff out of an in-person lineup with the caveat that she was 21 only 80% sure because “she had seen this man’s photo before.” (Crowley Decl. ¶ 76, Ex. 66.) 22 Duff’s identification is not better. On April 5, 1990, Crowley and Gerrans showed Duff a photo 23 array that included Ciria and Socorro, but Duff did not make an identification. (Crowley Decl. ¶ 24 41, Ex. 67.) Crowley’s notes indicate that Duff said that if he did make an identification, it would 25 have to be in an “in-person, line-up situation.” Ids. Duff did not attend the in-person lineup, and 26 did not make a positive identification of Plaintiff from a photo lineup until well after his arrest. 27 (See Crowley Decl. ¶ 81.) 1 personal knowledge, and, instead, are more akin to gossip or rumor, which may not be relied upon 2 for a finding of probable cause. See United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007) 3 (citations and internal quotations omitted) (“[M]ere suspicion, common rumor, or even strong 4 reason to suspect are not enough” for probable cause.); see also Henry v. United States, 361 U.S. 5 98, 101, 80 S. Ct. 168, 170, 4 L. Ed. 2d 134 (1959) (same). 6 ii. Malice 7 “[A] § 1983 malicious prosecution plaintiff must prove that the defendants acted for the 8 purpose of depriving him of a ‘specific constitutional right.’” Awabdy v. City of Adelanto, 368 9 F.3d 1062, 1069 (9th Cir. 2004) (quoting Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th 10 Cir. 1995)). In opposition, Plaintiff contends that his evidence that Defendants fabricated evidence 11 is sufficient to satisfy this requirement, because there is a clearly established right to not be 12 subjected to criminal charges based on false evidence fabricated by the government. (Pl.’s Opp’n 13 at 27-28.) 14 Additionally, “malice is not limited to hostility or ill will, but encompasses improper 15 motive, which can be inferred from continued prosecution despite a lack of substantial grounds for 16 believing in plaintiff's guilt.” Trulove v. D'Amico, No. 16-CV-050 YGR, 2018 WL 1070899, at *8 17 (N.D. Cal. Feb. 27, 2018) (citing Greene v. Bank of Am., 216 Cal. App. 4th 454, 464–65 (2013). 18 The Court notes that Guevara, Duff, and the Medical Examiner testified at the preliminary hearing 19 on September 4, 1990. (Weiner Decl., Ex. E at 2, 89.) Presumably, the eyewitness identification 20 by Guevara and Duff at the preliminary hearing were integral to the superior court’s probable 21 cause finding, which held Plaintiff over to answer and proceed to criminal trial. In the absence of 22 those identifications, it is unlikely that Plaintiff would have been made to stand trial. Thus, a jury 23 could reasonably find that presenting these witnesses as credible, despite their failure to positively 24 identify Ciria, was intended to subject him to criminal charges based on false evidence. See 25 Devereaux v. Abbey, 263 F.3d 1070, 1074–75 (9th Cir. 2001). This possibility is bolstered by 26 defense counsel’s concession at the hearing that neither of these identifications were, in fact, 27 “positive” identifications. 1 iii. Qualified Immunity 2 Defendants argue that even if Plaintiff could establish that the officers’ conduct constituted 3 malicious prosecution under § 1983, the officers are entitled to qualified immunity because it was 4 “reasonably arguable that there was probable cause.” (Defs.’ Mot. at 20 (citing Johnson v. Barr, 5 79 F.4th 996, 1005 (9th Cir. 2023).) 6 “Malicious prosecution, by itself, does not constitute a due process violation; to prevail 7 [the plaintiff] must show that the defendants prosecuted [him] with malice and without probable 8 cause, and that they did so for the purpose of denying [him] equal protection or another specific 9 constitutional right.” Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995). Plaintiff 10 has the burden to identify the constitutional right he claims the officers sought to deprive him of, 11 and to show that the right was clearly established at the time of the alleged misconduct. 12 As discussed above, Plaintiffs claims that Crowley and Gerrans caused him to be 13 maliciously prosecuted for the purpose of depriving him of rights guaranteed under the Fourteenth 14 Amendment, including the due process right not to be subjected to criminal charges on the basis of 15 false evidence and the right to exculpatory evidence. Plaintiff cites to Devereaux, 263 F.3d 1070 16 at 1074–75, to argue that “[t]he right not to be subjected to criminal charges based deliberately 17 fabricated false evidence is self-evident and long-established.” (Pl.’s Opp’n at 28.) Plaintiff later 18 cites to Rubalcava v. City of San Jose, No. 20-CV-04191-BLF, 2024 WL 1336456, at *21 (N.D. 19 Cal. Mar. 27, 2024) and Usher v. City of Los Angeles, 828 F.2d 556, 562 (9th Cir. 1987) to argue 20 that it was clearly established by 1990 “that a criminal defendant may bring a malicious 21 prosecution claim against police officers who wrongfully caused his prosecution for the purpose of 22 depriving him of a constitutional right.” (Pl.’s Suppl. Br. at 3.) 23 Additionally, while not cited by Plaintiff, the Court notes that qualified immunity cannot 24 act as a shield to judicial deception. See Butler, 281 F.3d at 1024. Generally, 25 a plaintiff can only survive summary judgment on a defense claim of qualified immunity if the plaintiff can both establish a substantial 26 showing of a deliberate falsehood or reckless disregard and establish that, without the dishonestly included or omitted information, the 27 magistrate would not have issued the warrant. Put another way, the 1 Hervey v. Estes, 65 F.3d 784, 789 (9th Cir. 1995), as amended on denial of reh'g (Dec. 5, 1995). 2 In other words, since Plaintiff has made a substantial showing that Crowley’s affidavit was based 3 on the Varela interview that, for the purposes of this motion, he and Gerrans coerced, and, if not 4 for that dishonesty, the warrant would not have issued, qualified immunity is unavailable. See 5 Butler, 281 F.3d at 1024 (citing Hervey, 65 F.3d at 788-89). 6 Based on these authorities, the Court finds that Defendants are not entitled to qualified 7 immunity with respect to the § 1983 claim for malicious prosecution. 8 E. § 1983 Conspiracy 9 The fourth cause of action is for conspiracy against the individual officers. The elements 10 of a § 1983 claim for conspiracy are: “(1) the existence of an express or implied agreement among 11 the defendant officers to deprive [the plaintiff] of his constitutional rights, and (2) an actual 12 deprivation of those rights resulting from that agreement.” Avalos v. Baca, 596 F.3d 583, 592 (9th 13 Cir. 2010). “Whether defendants were involved in an unlawful conspiracy is generally a factual 14 issue and should be resolved by the jury, so long as there is a possibility that the jury can infer 15 from the circumstances (that the alleged conspirators) had a meeting of the minds and thus reached 16 a understanding to achieve the conspiracy's objectives.” Mendocino Env't Ctr. v. Mendocino Cty., 17 192 F.3d 1283, 1301-02 (9th Cir. 1999) (internal quotation marks and citation omitted). “To be 18 liable, each participant in the conspiracy need not know the exact details of the plan, but each 19 participant must at least share the common objective of the conspiracy.” Id. at 1302 (internal 20 quotation marks and citation omitted). 21 Defendants argue that there is no evidence of the existence of a conspiracy and that 22 qualified immunity applies because intracorporate conspiracy does not clearly apply to § 1983 23 claims. (Defs.’ Mot. at 32.) In opposition, Plaintiff argues that there is sufficient evidence to 24 defeat summary judgment on the conspiracy claim. (Pl.’s Opp’n at 33.) Specifically, Plaintiff 25 argues that Inspectors Gerrans and Crowley participated in improper conduct to target Plaintiff, 26 including by coercing key statements from Varela and failing to document exculpatory interviews 27 with witnesses at Galen’s Bar. Id. at 34. 1 conspire with its agents acting within the scope of their employment.’” Martinez v. City of Los 2 Angeles, No. 2:20-CV-10559-FWS-KS, 2023 WL 8686729, at *16 (C.D. Cal. Jan. 4, 2023) 3 (quoting Washington v. Duty Free Shoppers, 696 F. Supp. 1323, 1325 (N.D. Cal. 1988)). In an 4 unpublished memorandum, the Ninth Circuit applied the intracorporate conspiracy doctrine to § 5 1983 cases and found that the district court erred in denying qualified immunity to the police 6 detectives because the plaintiff “ha[d] not identified any case demonstrating that it was clearly 7 established that the intracorporate-conspiracy doctrine [did] not apply in the context of a § 1983 8 conspiracy claim.” Lobato v. Las Vegas Metro. Police Dep't, No. 22-16440, 2023 WL 6620306, at 9 *2 (9th Cir. Oct. 11, 2023). The Court finds this memorandum persuasive, and finds that Gerrans 10 and Crowley are entitled to qualified immunity on the § 1983 conspiracy claim. 11 Accordingly, summary judgment is granted as to the fourth cause of action. 12 F. Municipal Liability (§ 1983) 13 Defendants contend that Plaintiff has failed to allege municipal liability under § 1983 by 14 failing to identify a specific policy or training defect that was the moving force behind the 15 constitutional violation. (Defs.’ Mot. at 32-33.) 16 To impose municipal liability, the plaintiff must provide evidence that a specific policy or 17 training defect was the “moving force” that caused that violation to occur. Monell v. Dep’t of Soc. 18 Servs., 436 U.S. 658, 694 (1978). Absent an official policy, a plaintiff must show the violation 19 was caused by “a longstanding practice or custom which constitutes the standard operating 20 procedure of the local governmental entity.” Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th 21 Cir. 2005) (internal quotation marks omitted). 22 Here, Plaintiff purports to present deposition testimony and other evidence that the 23 coercive interrogation techniques employed by Gerrans and Crowley were consistent with the 24 training received from the SFPD. (Pl.’s Gerrans Dep. at 159:6-19, 161:11-163:8; Crowley Decl. ¶¶ 25 51-62.) To the contrary, when asked if he followed his SFPD training, Gerrans appeared to make 26 excuses for why his interrogation of Varela did not comply with that training. (See Pl.’s Gerrans 27 Dep. at 160:1-161:2.) Crowley’s declaration similarly appears to make excuses for the tactics 1 Court finds that Plaintiff has failed to provide admissible evidence that any department policy, 2 custom or training would have allowed the inspectors to do what they are alleged to have done. 3 Accordingly, summary judgment is granted on the § 1983 Monell claims, such that the 4 only remaining claims against the City and County of San Francisco are the state law claims. 5 G. Remaining California Claims 6 i. No probable cause to arrest 7 First, Defendants argue that there was probable cause to arrest Plaintiff, which bars all state 8 law claims. (Defs.’ Mot. at 33.) As discussed above, a jury could find that there was no probable 9 cause to arrest Plaintiff, so this argument fails. See discussion, supra, Part III.D.i. 10 ii. Claims are not time-barred 11 Defendants argue that Plaintiff’s state law claims are time-barred, because they are 12 premised on his false imprisonment and pre-arraignment confinement in 1990. (Defs.’ Mot. at 34.) 13 The Court disagrees. California Government Code § 911.2 requires plaintiffs to present 14 government claims “not later than six months after the accrual of the cause of action.” Cal. Gov’t 15 Code § 911.2(a). As Plaintiff argues in opposition, the Court previously addressed this issue in the 16 related case, and it found that claims related to Plaintiff’s false imprisonment did not accrue until 17 his conviction was vacated in 2022. Order Granting in Part and Denying in Part Defs.’ Mot. to 18 Dismiss, Ciria et al. v. City and County of San Francisco, No. 23-cv-02796-KAW (N.D. Cal. Feb. 19 22, 2024), ECF No. 35 at 10. Indeed, “[i]t is settled that a cause of action for false imprisonment 20 accrues on the person’s release from incarceration.” Torres v. Dep't of Corr. & Rehab., 217 Cal. 21 App. 4th 844, 848, 158 Cal. Rptr. 3d 876, 879 (2013) (citing Scannell v. County of Riverside, 152 22 Cal. App.3d 596, 606 (1984)). Plaintiff was released from custody on April 20, 2022, and timely 23 filed a government claim. Moreover, prior to Plaintiff’s conviction being vacated, any claim 24 arising out of Plaintiff’s arrest and prosecution would have been barred by Heck v. Humphrey, 512 25 U.S. 477 (1994). 26 Thus, Plaintiff’s state law claims are not time-barred. 27 iii. Bane Act 1 seek damages “if a person or persons, whether or not acting under color of law, interferes by 2 threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with 3 the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or 4 laws of the United States, or of the rights secured by the Constitution or laws of this state.” Cal. 5 Civ. Code § 52.1(b)-(c). “The essence of a Bane Act claim is that the defendant, by the specified 6 improper means (i.e., threats, intimidation or coercion), tried to or did prevent the plaintiff from 7 doing something he or she had the right to do under the law or to force the plaintiff to do 8 something that he or she was not required to do under the law.” Simmons v. Superior Court, 7 Cal. 9 App. 5th 1113, 1125 (2016) (internal quotation marks and citation omitted). 10 Defendants argues that this claim is barred because all conduct was part of Plaintiff’s 11 prosecution. (Defs.’ Mot. at 35.) In opposition, Plaintiff argues that the Court has already resolved 12 this issue when it limited his Bane Act damages to harms suffered prior to arraignment. (Pl.’s 13 Opp’n at 35.) Plaintiff is correct, and the Bane Act claim survives. 14 iv. State Law Conspiracy Claim 15 The sixth cause of action is conspiracy under California law. Defendants argue that the 16 state law conspiracy claims fails for the same reasons as the § 1983 claim. (Defs.’ Mot. at 35.) 17 Since summary judgment was granted as to the § 1983 conspiracy claim, summary judgment is 18 granted as to the sixth cause of action. 19 v. Intentional Infliction of Emotional Distress 20 Defendants do not argue an independent grounds to grant summary judgment as to this 21 cause of action, so this claim survives. (See Defs.’ Mot. at 33-35.) 22 H. Punitive Damages 23 Finally, Defendants move for summary judgment on the prayer for punitive damages on 24 the grounds that “[t]here is insufficient evidence to conclude the defendant officers were 25 ‘motivated by malice or indifference to’ Plaintiff’s federal rights, as required for punitive 26 damages.” (Defs.’ Mot. at 35.) 27 “[A] jury may be permitted to assess punitive damages in an action under section 1983 1 involves reckless or callous indifference to the federally protected rights of others.” Smith v. 2 || Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983). California law conditions 3 || punitive damages on the plaintiff proving “by clear and convincing evidence that the defendant 4 || has been guilty of oppression, fraud, or malice.” Cal. Civ. Code § 3294(a). If the jury believes 5 Plaintiff's version of events, it could find that Crowley and Gerrans’s conduct, at the very least, 6 involved reckless or callous indifference. Thus, the evidence in this case is sufficient to raise a 7 triable issue as to the state of mind of Inspectors Crowley and Gerrans, and they are not entitled to 8 summary judgment with respect to punitive damages. 9 IV. CONCLUSION 10 For the reasons set forth above, the Court GRANTS IN PART AND DENIES IN PART 11 Defendants’ motion for summary judgment. Summary judgment is granted as to the second, 12 fourth, and sixth causes of action, as well as to all claims against Defendant Nicholas J. Rubino. 13 Summary judgment is also granted as to the § 1983 claims against the City and County of San 14 || Francisco. The motion is denied in all other respects. 3 15 IT IS SO ORDERED. 2 16 || Dated: May 21, 2024 18 United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28