United States District Court, N.D. California, San Jose Division
September 30, 2005.
QUEDILLIS RICARDO WALKER, MYRTLE VIVIAN WALKER, and WILLIAM BERKELEY WALKER, Plaintiffs,
COUNTY OF SANTA CLARA, GERALD EGGE, GAIL LEWIS, EARL PENNINGTON, JOHN SCHON, RANDY DANTO, and DOES 1 to 100, Defendants.
The opinion of the court was delivered by: RONALD WHYTE, District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS TO
[Re Docket Nos. 11, 15]
Defendants County of Santa Clara ("County"), Gerald Egge
("Egge"), Gail Lewis ("Lewis"), Earl Pennington ("Pennington"),
John Schon ("Schon") and Randy Danto ("Danto") filed motions to
dismiss the County and Danto from the complaint. Plaintiffs
Quedillis Ricardo Walker ("Walker"), Myrtle Vivian Walker, and
William Berkeley Walker oppose the motion. The court has reviewed
the papers and considered the arguments of counsel. For the
reasons discussed below, the court grants in part and denies in
part defendants' motions to dismiss as follows: plaintiffs'
Monell claims against the County based on the actions of the
district attorney, the sheriff and his deputies, and the
Conflicts Administration Program are dismissed because they are
state officials; defendants' motion to dismiss plaintiffs'
Monell claims against the County based on the actions of Public Defender Danto is denied to
the extent that Danto was not a state official, but is granted to
the extent such claims are based on Danto's failure to disclose
the plea agreement, which is barred by collateral estoppel;
plaintiffs' claims against the sheriff and district attorney are
barred by Eleventh Amendment sovereign immunity; plaintiffs'
claims against the Public Defender's Office and Conflicts
Administration Program are dismissed for failure to state a
claim; plaintiffs' state claim for damages under Article 1,
Section 15 is dismissed because plaintiffs do not contest that
there is no indication that damages are provided for under
Article 1, Section 15; defendants' motion to dismiss plaintiffs'
Bane Act claim against the County is denied as to Walker, but
granted as to Myrtle Walker and William Walker; plaintiffs'
claims against the County based on negligent supervision and
hiring are dismissed; plaintiffs' claims against Danto, to the
extent they are based on her failure to disclose the plea
agreement, are barred by collateral estoppel and alternatively
for failure to state a claim; defendants' motion to dismiss
plaintiffs' Bane Act claim against Danto is granted; defendants'
motion to dismiss claims against Danto based on sections 821.6
and 820.2 is denied; defendants' motion to dismiss plaintiffs'
claims against Danto based on the litigation privilege is
granted; and plaintiffs are granted thirty days leave to amend.
On January 10, 1991 34-year-old Lisa Hopewell, Walker's
ex-girlfriend, was found murdered in her apartment with her head
wrapped in duct tape, her throat slit and her vaginal area
stabbed. The cause of death was asphyxia. There was evidence that
someone had been drinking champagne, and also evidence of crack
cocaine use. The tip of one finger of an Isotoner glove was found
stuck to a piece of duct tape, there were several cigarette butts
near the body, and surfaces that might have carried fingerprints
appeared to have been wiped clean. Plaintiff Walker and Rahsson
Bowers were tried for Hopewell's murder. Bowers' fingerprints
were found on the duct tape, but there was no physical evidence
linking Walker to the crime. Bowers had previously admitted to
dealing crack cocaine, and was Hopewell's primary drug supplier.
FAC ¶ 35. Subsequent investigation revealed that Hopewell's arms
and legs, and every identifiable print from the duct tape,
matched the recorded fingerprints of Bowers.
A. Investigation and witness interviews
Bowers was arrested on March 7, 1991 and interrogated by Deputy
Sheriffs Egge, Lewis and Pennington ("Sheriffs"). Bowers
initially denied involvement in the crime until the Sheriffs
threatened him with the death penalty. First Am. Compl. ("FAC") ¶ 34. After
being shown a series of photographs, including Walker's, Bowers
identified "two white guys" and Walker in the crime. After
failing a polygraph test, Bowers omitted the "two white guys" but
still implicated Walker after encouragement from the Sheriffs.
After implicating Walker without the "two white guys," the
Sheriffs did not administer a second polygraph test on Bowers.
FAC ¶ 34.
As part of the investigation, the Sheriffs and deputy district
attorney John Schon went to the county jail to interview Sarah
Dunbar. FAC ¶ 40. Plaintiffs allege that Dunbar was susceptible
to being manipulated because she was awaiting trial on a drug
charge, and in exchange for a lesser sentence, testified falsely
that Walker had a propensity for violence, that he threatened to
hurt her if she testified, and that Walker wore gloves similar to
the Isotoner gloves found at the murder scene. Walker and his
attorney were not informed of Dunbar's interview or any deal with
Dunbar, and Dunbar recanted her testimony after trial. FAC ¶ 40.
The Sheriffs also interviewed Jacqueline Miller, who had
apparently spent the night with Walker at the time of the murder.
Plaintiffs allege that the Sheriffs played on Miller's
vulnerability that she was married and spending the night with
Walker, who was not her husband in order to "trick" Miller into
saying that she had spent only part of the night with Walker.
Although she subsequently stated that she spent the entire night
with him, her initial statements to the Sheriffs were used to
impeach her testimony at trial. FAC ¶ 41.
B. Alleged suppression of evidence
Assistant Public Defender Randy Danto was assigned to defend
Bowers. As the Office of the Public Defender could not represent
Walker due to a potential conflict with Bowers, Walker was
represented by James Mantell, a private attorney appointed
through the County's Conflicts Administration Panel. FAC ¶¶
The day before the trial, Bowers wrote a letter to Deputy
Sheriff Egge, accusing Egge of reneging on a plea agreement, and
expressing fear that he would be subject to the death penalty.
FAC ¶ 44. Bowers signed the letter in his own blood. This letter,
which plaintiffs allege was critical to impeachment of Bowers'
testimony at trial, was never disclosed or produced to Walker's
defense counsel. FAC ¶ 45. C. Undisclosed plea agreement and plea agreement negotiations
Plaintiffs allege that Bowers' counsel Danto had multiple
conversations with Schon prior to trial in an attempt to secure a
plea bargain. These conversations were not revealed to Walker or
his attorney. FAC ¶ 46. Just after the commencement of trial,
Schon agreed to a plea agreement with Bowers: Bowers would be
allowed to plead to second degree murder in exchange for
testifying against Walker. FAC ¶ 47. Plaintiffs allege that Danto
and Schon agreed not to reveal the plea agreement to anyone else,
including the court, until the state concluded its case against
Walker. FAC ¶ 48.
By not revealing the plea agreement, Bowers was allowed to
remain in the courtroom throughout the other witness testimony.
Plaintiffs allege that this was improper, as Bowers became a
state witness, and was no longer an actual defendant at that
point. FAC ¶ 49. At trial, Danto made numerous arguments to the
jury in support of Bowers' coercion defense. Danto asserted that
Walker had a record of and reputation for extreme violence, that
Walker threatened Bowers and his family, and that other witnesses
were afraid of Walker. Id. Plaintiffs argue that none of
Danto's arguments would have been allowed had the plea agreement
D. Verdict and post-trial events
Walker was convicted of first degree murder and sentenced to a
term of 26 years to life in prison. During his time in prison,
multiple witnesses testified that another individual, Mark
Swanson, was Bowers' accomplice, and subsequent tests on
cigarette butts left at the crime scene matched saliva fragments
with blood taken from Swanson. FAC ¶ 53. A history of Walker's
various appeals and petitions for writs of habeas corpus in the
state and federal courts is discussed in more detail in the
court's discussion on collateral estoppel below. Walker spent 12
years in prison before a writ of habeas corpus was issued on June
20, 2003. II. ANALYSIS
A. Monell claims against the County under Section 1983
State officials are not subject to suit under section 1983
because they are not persons within the meaning of the statute.
See Will v. Michigan Dept. of State Police, 491 U.S. 58, 71
(1989). "Obviously, state officials literally are persons. But a
suit against a state official in his or her official capacity is
not a suit against the official but rather is a suit against the
official's office." Will, 491 U.S. at 71 (citations omitted).
"As such, it is no different from a suit against the State
itself." Id. (citations omitted). On the other hand,
"[p]ursuant to 42 U.S.C. § 1983, a local government may be liable
for constitutional torts committed by its officials according to
municipal policy, practice, or custom." Weiner v. San Diego
County, 210 F.3d 1025, 1028 (9th Cir. 2000) (citing Monell v.
Department of Social Servs., 436 U.S. 658, 690-91 (1978)). "[A]
local government may not be sued under § 1983 for an injury
inflicted solely by its employees or agents. Instead, it is when
execution of a government's policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury that the
government as an entity is responsible under § 1983." Monell,
436 U.S. at 694.
Thus, the question initially turns on whether the official is a
representative of the County or a representative of the State. In
answering this question, the official's function in a particular
area, "as defined by state law, must be evaluated to determine
whether he acts for the state or the county." Weiner,
210 F.3d at 1028 (citing McMillian v. Monroe County Alabama,
520 U.S. 781, 786 (1997)).
1. Section 1983 claim based on conduct of district attorney
Walker does not bring a claim based on the District Attorney's
decision to prosecute. Rather, plaintiffs' section 1983 claim
argues that the District Attorney is subject to Monell
liability based on two theories: (1) customs and policies of the
District Attorney that plaintiff alleges violate the
constitutional rights of criminal suspects and defendants; and
(2) delegating final policy making authority to Schon, or
ratifying his conduct. Defendants counter that Schon is not a
"person" for purposes of section 1983 liability because he was
prosecuting crimes against Walker.
In Pitts v. County of Kern, plaintiffs were individuals whose
convictions for child molestation were reversed on appeal due to
prosecutorial misconduct. 17 Cal. 4th 340, 345 (1998). Plaintiffs
subsequently brought a section 1983 suit against, inter alia,
the County of Kern for employing the deputy district attorney and chief prosecutor. After conducting a detailed
analysis, the California Supreme Court concluded that a district
attorney represents the state when preparing to prosecute and
when prosecuting criminal violations of state law. Id. at
356-62. The California Supreme Court went on to find that there
was no reasonable distinction between a district attorney's
actions when prosecuting violations of state law, and the
district attorney's training and developing policy in these
areas. Thus, a district attorney also represents the state when
training and developing policies related to prosecuting
violations of state law. See id. at 362-63; Venegas v. County
of Los Angeles, 32 Cal. 4th 820, 832-33 (2004); see also
Weiner, 210 F.3d at 1030 (county district attorney acts as state
official when deciding whether to prosecute an individual);
accord Brewster v. Shasta County, 275 F.3d 803, 810 (9th Cir.
Similarly, here the court is satisfied that when establishing
customs and policies related to prosecuting individuals for
violations of state law, the district attorney and deputy
district attorney Schon were both acting as state officials, and
the County is therefore not subject to liability under section
1983 for their actions.
2. Section 1983 claim based on conduct of sheriffs
Plaintiffs contend that the Ninth Circuit's holding in
Brewster v. Shasta County controls, and therefore that the
sheriff, when investigating crime, acts as a final policymaker
for the County when investigating crime within the County.
275 F.3d 803, 812 (9th Cir. 2001). Defendants counter that Venegas
v. County of Los Angeles is controlling. 32 Cal. 4th 820 (2004).
In Venegas, the California Supreme Court expressly disagreed
with the Ninth Circuit's decision in Brewster, and held that
"California sheriffs act as state officers while performing state
law enforcement duties such as investigating possible criminal
activity." Id. 839. Thus, there appears to be a split of
In Miller v. Gammie, the Ninth Circuit reversed a blanket
absolute immunity rule for social workers established by Babcock
v. Tyler, 884 F.2d 497 (9th Cir. 1989), in light of a more
functional approach to immunity taken by the Supreme Court in two
subsequent decisions, Antoine v. Byers & Anderson, Inc.,
508 U.S. 429 (1991), and Kalina v. Fletcher, 522 U.S. 117 (1997).
See 335 F.3d 889, 896-99 (9th Cir. 2003). The Miller court
went on to address "when, if ever, a district court or a
three-judge panel is free to reexamine the holding of a prior
panel in light of an inconsistent decision by a court of last
resort on a closely related, but not identical issue." Id. at
899. The Ninth Circuit concluded that "the relevant court of last resort must have undercut the
theory or reasoning underlying the prior circuit precedent in
such a way that the cases are clearly irreconcilable." Id. at
900. In light of the subsequent Supreme Court decisions, the
Ninth Circuit affirmed the district court's deferred ruling on a
motion to dismiss, and refusal to apply the Babcock decision,
until the nature of the functions the defendant performed were
sufficiently outlined to apply Antoine and Kalina. See id.
Here, the Ninth Circuit's decision in Brewster is directly at
odds with the California Supreme Court's subsequent holding in
Venegas that California sheriffs are state officers while
performing law enforcement duties, and although this court need
not "blindly accept" the Venegas court's decision, see
Weiner, 210 F.3d at 1029, the California Supreme Court's
decision comports with this court's understanding of the function
of California sheriffs. See Venegas, 32 Cal. 4th at 839;
Miller, 335 F.3d at 900; Weiner, 210 F.3d at 1028-29 ("The
California Supreme Court is the ultimate interpreter of
California state law.").
3. Section 1983 claim based on conduct of public defender
Defendants argue that the County has no Monell liability for
Danto's actions, because she did not act under color of state
law. See Polk County v. Dodson, 454 U.S. 312, 325 (1981) ("[A]
public defender does not act under color of state law when
performing a lawyer's traditional functions as counsel to a
defendant in a criminal proceeding."). Plaintiffs counter that
the County is liable for Danto's actions because they were based
on a conspiracy with Deputy District Attorney Schon, and Danto
acted as a "quasi-prosecutor" against Walker when purportedly
defending Bowers. Opp. at 14-15.
Defendants are correct that generally public defenders are
private individuals for purposes of section 1983, and thus do not
act under color of state law. See Polk County, 454 U.S. at 325.
A private attorney, even if appointed and paid for by the state,
is not acting under color of state law when performing his
functions as counsel. Id. However, an otherwise private
individual may act under color of state law by engaging in a
conspiracy with state officials to deprive another of federal
rights. See Tower v. Glover, 467 U.S. 914, 923 (1983).
Plaintiffs' claim appears to be that Danto acted under color of
state law by agreeing with Deputy Attorney Schon to bring in
character evidence about Walker's purported violent behavior, in
purported defense of Bowers, that Schon could not bring in
himself. At the same time, Danto failed to reveal that she had
reached a plea agreement with Schon regarding her client Bowers,
thus purportedly violating Walker's due process and equal
protection rights and rendering Danto an individual acting under color of state law for purposes of section 1983. See Tower,
467 U.S. at 923. Defendants' argument on reply remains unclear.
Notably, as discussed below, plaintiffs' claims against Danto
based on the plea agreement are dismissed on the alternative
grounds of collateral estoppel.
Plaintiffs also allege that Danto's actions were administrative
actions beyond the actual representation of her client, and
therefore subjects the public defender offices to suit under
section 1983 for failing to train their attorney "in proper and
ethical litigation practices." Opp. at 14. In Miranda v. Clark
County, upon which plaintiffs rely, the complaint alleged that
the county defendant "had a policy of assigning the
least-experienced attorneys to capital cases without providing
any training, thus demonstrating callous indifference to the
defendant's constitutional rights." 319 F.3d at 471. The
complaint further alleged that this practice was not one isolated
incident, but "a deliberate pattern and policy of refusing to
train lawyers for capital cases known to the county
administrators to exert unusual demands on attorneys." Id. The
Ninth Circuit, on rehearing en banc, held that these
allegations were sufficient to create a claim of "deliberate
indifference to constitutional rights" for failing to train
lawyers to represent clients accused of capital crimes. Id.
Here, plaintiffs do not adequately allege a basis for concluding
that Danto's actions, taken as true, indicate a County policy of
deliberate indifference to the constitutional rights of criminal
4. Section 1983 claims based on Conflicts Administration
Plaintiffs argue that the Conflicts Administration Program is
subject to Monell liability for Mantell's purported ineffective
assistance of counsel. Defendants counter that, because the
Conflicts Administration Program and Conflicts Counsel are not
County agencies, the County cannot set policy for an entity it
does not control and therefore cannot be liable under section
1983. In contrast to the allegations that Danto conspired with
Deputy District Attorney Schon to violate Walker's constitutional
rights, plaintiffs do not allege that Mantell or the Conflicts
Administration Program participated in such a conspiracy. In
addition, plaintiffs' allegations are insufficient to establish
that Mantell rendered ineffective assistance of counsel, or that
he was improperly selected. As discussed below, it appears that
Mantell performed at least adequately in representing Walker.
Plaintiffs' argument that the Ninth Circuit's holding in
Miranda establishes a basis for bringing a claim against the
Conflicts Administration Program is not convincing. See Opp. at
16 (citing Miranda, 319 F.3d at 468-70). Accordingly,
plaintiffs' claim against the County based on the Conflicts Administration Program's selection of Mantell as
Walker's trial counsel is properly dismissed. See Polk,
454 U.S. at 324-25.
B. Eleventh Amendment immunity for claims against the District
Attorney and Sheriff
The Eleventh Amendment bars from the federal courts suits
against a state by its own citizens, citizens of another state or
citizens or subjects of any foreign state. See Atascadero State
Hosp. v. Scanlon, 473 U.S. 234, 241 (1985). Unless a state has
waived its Eleventh Amendment immunity or Congress has overridden
it, a state cannot be sued regardless of the relief sought. See
Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985) (citing
Alabama v. Pugh, 438 U.S. 781 (1978)); Confederated Tribes &
Bands v. Locke, 176 F.3d 467, 469 (9th Cir. 1999). This Eleventh
Amendment immunity also extends to suits against a state agency,
see, e.g., Simmons v. Sacramento County Superior Court,
318 F.3d 1156, 1161 (9th Cir. 2003) (Eleventh Amendment bars suit
against state superior court and its employees), and to state
officials sued in their official capacities, see Kentucky,
472 U.S. at 169-70. The parties essentially reiterate their Monell
arguments. As the sheriff and district attorney are both held to
be state actors, they are entitled to sovereign immunity under
the Eleventh Amendment. See McMillian v. Monroe County,
520 U.S. 781, 786-93 (1997) (county sheriff cannot be sued for
damages under § 1983 where survey of state law reveals sheriff
represents the State, not the county, in official policymaking
C. Claims against the Public Defender and Conflicts
Given that Danto and Mantell, in defending their respective
clients Bowers and Walker, were not acting under color of state
law, defendants argue that their respective supervising agencies,
the public defender and Conflicts Administration Program, also
cannot be held liable for counsels' actions. Plaintiffs argue
that under Miranda, liability against the county may attach
even when the individual public defender is not deemed to be
acting under color of state law. Opp. at 17 (citing Miranda,
319 F.3d at 468-69). In Miranda, the Ninth Circuit found that
the Nevada County Public Defender could be held liable as the
administrative head for instituting office-wide policies that
allocated resources to capital defendants based on whether they
passed a polygraph test, providing defendants who passed the
polygraph test with more experienced attorneys. Miranda,
319 F.3d at 469-471. Plaintiffs allege no such policy on the part of
the public defender or Conflicts Administration Program here.
Thus, even assuming that liability may attach against the County when the individuals are not subject to suit,
plaintiffs fail to state a claim under Miranda.
D. State claims
1. Article I Section 15 of the California Constitution
Defendants argue that Article I, Section 15 of the California
Constitution does not provide an independent right to sue for
damages. Article I, Section 15 of the California Constitution
states in part:
The defendant in a criminal cause has the right to a
speedy public trial, to compel attendance of
witnesses in the defendant's behalf, to have the
assistance of counsel for the defendant's defense, to
be personally present with counsel, and to be
confronted with the witnesses against the defendant.
The Legislature may provide for the deposition of a
witness in the presence of the defendant and the
CAL. CONST. art. I, § 15.
For purposes of analysis, the court assumes that plaintiffs
have adequately stated a cause of action under Article I, Section
15. See Degrassi v. Cook, 29 Cal. 4th 333, 338 (2002);
Katzberg v. Regents Univ. Calif., 29 Cal. 4th 300, 307 (2002).
There is no dispute that Article I, Section 15 is
"self-executing" in that all branches of government must comply
with its terms, and that this section supports an action brought
by a private plaintiff for declaratory relief or for an
injunction. Degrassi, 29 Cal. 4th at 338 (Article I, Section
2(a) free speech clause self-executing); Katzberg,
29 Cal. 4th at 307. The question here, as in Degrassi and Katzberg, is
whether money damages are available. See id. As an initial
matter, the language of Article I, Section 15 does not "speak to
manifest any intent to include a damages remedy for a violation
of the provision." Degrassi, 29 Cal. 4th at 338 (citing
Katzberg, 29 Cal. 4th at 317-18). Defendants further contend
that Walker has adequately exercised his Article I, Section 15
rights through the writ of habeas corpus process and through his
claims under the Bane Act. Plaintiffs counter in two sentences
that defendants have failed to address the history of Article I,
Section 15 in support of their motion to dismiss. As plaintiffs
do not contest that Article I, Section 15 does not manifest an
intent to include a damages remedy, and also do not contest that
there are adequate alternative forms of relief, their claims for
damages under Article I, Section 15 are properly dismissed. 2. Bane Act
a. Quedillis Walker
California Civil Code § 52.1 authorizes a cause of action
against any person who, "whether or not acting under color of
law, interferes . . . or attempts to interfere by threats,
intimidation, or coercion, with the exercise or enjoyment by any
individual or individuals of rights secured by the Constitution
or laws of the United States, or of the rights secured by the
Constitution or laws of this state." CAL. CIV. CODE § 52.1(a).
Under section 52.1(b), "[a]ny individual whose exercise or
enjoyment of rights secured by the Constitution or laws of the
United States . . . has been interfered with, or attempted to be
interfered with . . . as described in subdivision (a), may
institute and prosecute in his or her own name and on his or her
own behalf a civil action for damages. . . ." CAL. CIV. CODE §
The California Court of Appeal held in Boccato v. City of
Hermosa Beach, 29 Cal. App. 4th 1797, 1809 (1994), that a person
who brings an action under section 52.1 must be a member of one
of the classes protected by Civil Code section 51.7, and that a
plaintiff under section 52.1 must also allege discriminatory
animus or intent. Both parties agree that this interpretation of
the statute has been specifically overruled by legislative
action. 2000 CAL. STAT. 98 § 1 (Assemb. B. 2719); see Venegas,
32 Cal. 4th at 842. Thus, a plaintiff "need not allege that
defendants acted with discriminatory animus or intent, so long as
those acts were accompanied by the requisite threats,
intimidation, or coercion." Venegas, 32 Cal. 4th at 843.
Defendants submit that, as the allegations relate to
intimidation and coercion of witnesses who testified against
Walker at trial, and not allegations that Walker was personally
subject to intimidation and coercion directly, plaintiffs fail to
state a claim. As the argument goes, defendants are liable under
section 52.1 when they attempt to interfere with a plaintiff's
constitutional or statutory rights by making direct threats
against the plaintiff, but when defendants attempt to interfere
with a plaintiff's constitutional or statutory rights by making
threats against third parties, section 52.1 liability is
unavailable. This argument does not appear to be supported by the
case law or legislative history. b. Myrtle and William Walker
Defendants contend that the language "in his or her own name
and on his or her own behalf" requires that a Bane Act plaintiff
be the person whose rights were violated, in this case Quedillis
Walker, and that there is no derivative liability cognizable
under the Bane Act. CAL. CIV. CODE § 52.1(b). Several cases prior
to Venegas held that there is no derivative liability under
section 52.1 in the context of wrongful death cases. See City of
Simi Valley v. Superior Court, 111 Cal. App. 4th 1077, 1085
(2003) ("This statute permits an individual to sue for damages
where his or her constitutional rights are violated" and does not
permit a wrongful death claim); Bay Area Rapid Transit Dist. v.
Superior Court ("BART"), 38 Cal. App. 4th 141, 144 (1995)
("The Bane Act is simply not a wrongful death provision");
Gaston v. Colio, 883 F. Supp. 508, 510 (S.D. Cal. 1995)
(plaintiffs could not bring a Bane Act claim because they "were
not the one whose rights were allegedly violated").
Plaintiffs in BART, whose child was shot and killed by a BART
police officer, brought, inter alia, a claim under the Bane Act
for his death. The California Court of Appeal, held that the Bane
Act "is limited to plaintiffs who themselves have been the
subject of violence or threats." 38 Cal. App. 4th at 145. The
BART court went on to note that, "[a]s in the cases of
bystander recovery for emotional distress, [citation], one could
see the nightmare of trying to determine where the scope and
extent of such liability would end. In the absence of a clear
legislative intent, we cannot recognize derivative Bane Act
liability as requested by [plaintiffs]." Id. at 144-45. Here,
although there is clear legislative intent that section 52.1 does
not require a plaintiff to be a member of a protected class or to
allege discriminatory animus, there is no indication that the
state legislature intended to overrule BART's holding that the
Bane Act does not authorize derivative liability, and the plain
language of 52.1(b) supports this conclusion.
3. Public entity liability for negligent hiring, training, and
The parties agree that California Government Code section 815
limits the liability of public entities to statutory
claims.*fn2 Plaintiffs assert that their negligent hiring,
training and supervision claim is properly based on California
Government Code section 815.2(a), which "makes a public entity
vicariously liable for its employee's negligent acts or omission within the scope of
employment." Eastburn v. Reg'l Fire Protection Auth.,
31 Cal. 4th 1175, 1184 (2003). In support, plaintiffs cite Van Ort v.
Estate of Stanewich, which noted in dicta that "it can be argued
that the statutory language [of section 815.2(a)] conceivably
provides for negligent supervision direct liability for acts
employees committed within the scope of their employment."
92 F.3d 831, 840 (9th Cir. 1996).
Subsequently in Eastburn, the California Supreme Court
explained that California Government Code section 815 applies to
direct tort liability of public entities, 31 Cal. 4th at 1180,
while California Government Code section 815.2(a) "makes a public
entity vicariously liable for its employee's negligent acts or
omission within the scope of employment." Id. at 1184.
"Vicarious liability `means that the act or omission of one
person . . . is imputed by operation of law to another[.]'"
Srithong v. Total Investment Co., 23 Cal. App. 4th 721, 726
(1994) (quoting Far West Financial Corp. v. Defendant & S Co.,
46 Cal.3d 796, 819 (1988)). In other words, vicarious liability
imposes liability on a party innocent of any personal wrongdoing
for the negligence of another. See Srithong,
23 Cal. App. 4th at 727. Thus, plaintiffs' allegations, which focus on the
negligent hiring and supervision by the County, are properly
treated as direct liability claims. See Munoz v. City of Union
City, 120 Cal. App. 4th 1077, 1113 (2004) (negligent hiring and
supervision of police claim treated as direct liability claim);
see also Eastburn, 31 Cal. 4th at 1185 (negligent staffing and
training claim against 911 company analyzed as direct liability
As discussed in Eastburn, "direct tort liability of public
entities must be based on a specific statute declaring them to be
liable, or at least creating some specific duty of care. . . ."
Eastburn, 31 Cal. 4th at 1183. In Eastburn, the court found
no direct liability because there was no statutory provision
"declaring or defining a public agency's duty of care with
respect to handling 911 emergency calls." Id. at 1180. The
California Court of Appeal in Munoz v. City of Union City
applied the same principle. In Munoz, plaintiffs were relatives
of a woman shot and killed by police officers, and filed a
wrongful death action against the officer and the city. The
decedent was under the influence and brandishing two knives in
her home near her family members when she was confronted by
police officers called to the scene. She was shot by a police
officer during the officer's attempt to calm her down. The
plaintiffs claimed that the city's inadequate training, and
supervision of officers in responding to crisis situations caused
the death. The Munoz court held that, as plaintiffs were unable
to find a statutory basis for their negligence claim, the defendant city was not directly liable for failing to provide
clearer police procedures in confrontational situations, more
effective officer supervision, or more effective officer
training. 120 Cal. App. 4th 1077, 1112-13 (2004). Similarly, here
plaintiffs' claims for negligent hiring, supervision and training
are not properly based on section 815.2(a). As plaintiffs have
not established an alternative basis for statutory liability
against the County, their claims are properly dismissed.
E. Whether collateral estoppel applies to plaintiffs' claims
Defendants submit that decisions by the California Sixth
District Court of Appeal, the California Supreme Court, the U.S.
District Court and the Ninth Circuit Court of Appeals
collaterally estop plaintiffs from bringing a claim for violation
of their Fourteenth Amendment rights. Specifically, defendants
assert that regardless of Walker's ultimate guilt or innocence,
the reviewing state and federal courts found that Danto did not
violate Walker's due process rights. Plaintiffs counter that
Walker was never provided an evidentiary hearing, that the
previous reviewing courts relied on inaccurate facts when making
their determinations, and that the previous reviewing courts were
applying a more stringent standard of review on Walker's appeal
and petitions for writ of habeas corpus.
State court judgments may preclude the relitigation of an
identical issue that arises in a subsequent federal civil rights
action. Allen v. McCurry, 449 U.S. 90, 101 S. Ct. 411 (1980);
Hawkins v. Risley, 984 F.2d 321, 323 (9th Cir. 1993). "Federal
courts should apply the state's collateral estoppel law in
determining whether a § 1983 claim is precluded by a prior state
judicial proceeding." Presley v. Morrison, 950 F. Supp. 1298,
1305 (E.D. Pa. 1996) (citing 28 U.S.C. § 1738; Haring v.
Prosise, 462 U.S. 306, 313 (1983)); Allen, 449 U.S. at 96. On
the other hand, federal courts apply federal law to determine the
preclusive effect of federal court judgments on federal
questions. See Blonder-Tongue Laboratories, Inc. v. University
of Illinois Foundation, 402 U.S. 313, 324 n. 12 (1971); Hawkins
v. Risley, 984 F.2d 321, 325 (9th Cir. 1992). As the underlying
state criminal trial is the basis for plaintiffs' state and
federal claims, California collateral estoppel law applies.
Regardless, under both the federal and state standards, Danto is
entitled to collaterally estop plaintiffs from bringing claims
based on the alleged undisclosed plea agreement.
In California, collateral estoppel will be applied only when
certain threshold requirements are met:
First, the issue sought to be precluded from
relitigation must be identicalto that decided in a former proceeding. Second, this issue
must have actually been litigated in the former
proceeding. Third, it must have been necessarily
decided in the former proceeding. Fourth, the
decision in the former proceeding must be final and
on the merits. Finally, the party against whom the
preclusion is sought must be the same as, or in
privity with, the party to the former proceeding.
Lucido v. Superior Court of Mendocino County, 51 Cal. 3d 335,
341 (1990). If these threshold requirements are met, the court
must still consider whether the application of collateral
estoppel in a particular setting will advance the public policies
underlying the doctrine: (1) preservation of the integrity of the
judicial system, (2) promotion of judicial economy, and (3)
protection of litigants from harassment from vexatious
litigation. Id. at 342-43.*fn3
1. State proceedings
Before the California Sixth District Court of Appeal, Walker
argued, inter alia:
That the efforts of the prosecutor, with the
cooperation of counsel for Bowers, to keep from
Walker the fact that Bowers had entered into a plea
bargain to testify for the prosecution violated
Walker's constitutional right to discovery of
information which could have been used to impeach
Bowers's credibility, and in other ways operated to
deny his right to a fair trial.
Def.'s Req. J. Notice Ex. D. at 2. The court of appeal found this
argument to be without merit, noting that "Walker could have
requested and in some instances did request and obtain
limiting instructions under Evidence Code section 355
presumptively sufficient to protect his right to a fair trial."
Id. at 42. The court also found that Walker's attorney expected
Bowers to testify against Walker. In a colloquy outside the
presence of the jury, counsel for Walker stated that "I . . .
foresee that my colleague [presumably referring to counsel for
Bowers], for sound tactical reasons might wish to cast as many
aspersions on my client's character as possible. . . ." Id. at
43. In another colloquy, counsel for Walker stated that "as far
as I know, the only pause is going to be on the question of
whether one of the defendants is going to become a witness for
the prosecution. That would radically alter the entire complex of
this case." Id. Thus, the court concluded that "[a]lthough
counsel for Walker was understandable [sic] distressed by the
announcement of Bowers's change of plea there is absolutely no
indication in the record to counter the strong inference that both counsel and the court had anticipated such a development
from the outset. On the face of the record on appeal we find no
fraud sufficient to implicate Walker's right to a fair trial."
Id. at 44.
In a one-line decision, the Supreme Court of California on May
24, 1995 denied Walker's petition for review and for writ of
2. Federal proceedings
Walker subsequently filed a petition for writ of habeas corpus
before the U.S. District Court for the Northern District of
California, C-95-20390-JW, arguing, inter alia, "that he was
deprived of his right to a fair trial by the prosecutor's failure
to timely reveal his co-defendant's plea agreement[.]" Def.'s
Req. J. Notice Ex. H at 1. Walker argued "that his constitutional
rights to cross-examine witnesses and to all timely discovery
were violated by the prosecution's disclosure of Bower's plea
agreement just four (4) days prior to the time that Bowers took
the stand[,]" when the parties had allegedly reached agreement
seventeen days prior. Id. at 6. "Even assuming that the
prosecutor's duty to disclose the plea agreement had arisen
earlier than the time that the plea was actually entered," the
court did not find that Walker's constitutional rights were
violated. Id. "Petitioner was informed of the plea agreement
prior to the time that Bowers took the stand and Petitioner was
afforded adequate time for both the preparation and the actual
cross-examination of Bowers. The plea agreement was also
acknowledged by Bowers on the stand." Id.
The Ninth Circuit affirmed the decision of the district court.
See Walker v. Marshall, 168 F.3d 504 (9th Cir. 1999).*fn4
The Court of Appeal first found that "[t]here was no evidence
that a binding plea agreement between the State and Bowers had
been reached prior to the time of its disclosure to Appellant.
Rather, the State and Bowers were engaged in negotiations
regarding a possible plea agreement until the deal was struck.
There was no obligation on the State to make disclosure until
there was a binding plea agreement." 168 F.3d at **1 (citing
Williams v. Calderon, 52 F.3d 1465, 1475 (9th Cir. 1995)). The
Ninth Circuit went on to hold that even accepting Walker's facts
as alleged, he suffered no prejudice from any delayed disclosure
because the court recessed for four days to allow Walker's
counsel to prepare a cross-examination, counsel did not seek a further continuance,
and counsel conducted a competent cross-examination including
impeachment of prior inconsistent statements. See id.
3. Subsequent events
On June 16, 2003, the Office of the District Attorney submitted
to the Santa Clara County Superior Court a response to an order
to show cause conceding that a writ of habeas corpus should issue
(1) newly discovered evidence establishes the
Petitioner is actually and factually innocent of the
crime for which he was convicted and (2) the
prosecution's key witness, Rahsson Bowers, and
corroborating witness Sarah Dunbar provided perjured
testimony against Petitioner at trial and (3) the
prosecution did not inform the defense that the
prosecution had promised a benefit to witness Sarah
Dunbar regarding an unrelated drug charge in exchange
for her testimony.
Opp. Ex. 1 at 1-2.*fn5
On June 20, 2003 the Santa Clara County Superior Court granted
Walker's writ of habeas corpus, vacated his conviction and
ordered him discharged from custody. Opp. Ex. 2. In an
accompanying order pursuant to a petition for judicial notice of
factual innocence, the court also found, inter alia, that
Walker was "factually innocent of the murder of Lisa Hopewell."
Def.'s Further Req. J. Notice Ex. L at ¶ 1. Notably, it does not
appear that Walker's allegations regarding the failure to
disclose the plea agreement was a basis for his release from
The parties do not dispute that the claim based on late
disclosure of the plea bargain agreement is identical to
allegations previously brought before the California Court of
Appeal and the federal courts and that the privity requirement is
met. The court is not persuaded that an evidentiary hearing is
required for every case in which collateral estoppel is to be
applied. See Barker v. Hull, 191 Cal. App. 3d 221, 226 (1987)
("[W]hile the party urging the estoppel must prove that the issue
was actually litigated and that evidence was not restricted, he need not establish that any
particular type of evidence, such as oral testimony, was
presented."). As detailed above, the late disclosure of the plea
bargain agreement was considered multiple times and necessarily
decided by both state and federal appellate courts, and the
subsequent reversal of Walker's conviction does not change the
previous findings that the late disclosure did not violate
plaintiff's constitutional rights. Notably, even accepting
plaintiffs' allegations as true and setting aside defendants'
argument on collateral estoppel, plaintiffs do not state a claim
against Danto for violation of their constitutional rights. In
addition, in this case, application of collateral estoppel will
preserve the integrity of previous state and federal decisions
finding that plaintiffs' allegations do not state a
constitutional violation, and will promote judicial economy. See
Lucido, 51 Cal.3d at 342-43; Robi, 838 F.2d at 322.
F. State claims against Danto
1. Bane Act
Plaintiffs do not oppose dismissal of their state claim under
California Civil Code section 52.1. Accordingly, this claim is
2. Immunity under section 821.6
The parties dispute whether California Government Code section
821.6 ("Institution or prosecution of judicial or administrative
proceeding") protects public defenders from plaintiffs' tort
claims for negligence and intentional infliction of emotional
distress. Plaintiffs argue that the immunity was intended only to
protect prosecutors from malicious prosecution claims, while
defendants contend that Danto is entitled to section 821.6
While principally applied to malicious prosecution actions,
section 821.6 immunity has been interpreted quite broadly and
includes immunity from actions for intentional infliction of
emotional distress, negligence, and conspiracy. See, e.g.,
Stearns v. County of L.A., 275 Cal. App. 2d 134 (1969) (applying
section 821.6 immunity to a deputy county coroner); Jenkins v.
County of Orange, 212 Cal. App. 3d 278 (1989) (applying section
821.6 immunity to a social worker); Gensburg v. Miller,
31 Cal. App. 4th 512 (1994) (applying section 821.6 immunity to employees
of the state department of social services); Kaplan v.
LaBarbera, 58 Cal. App. 4th 175 (1997) (applying section 821.6
immunity to the family support division of the district
Since investigation is an essential step to the institution of
formal proceedings, it, too, is cloaked with immunity. See Kemmerer v. County of Fresno,
200 Cal. App. 3d 1426, 1436-37 (1988). Thus, section 821.6 "shields
investigative officers from liability for injuries suffered by
witnesses or victims during an investigation." Baughman v. State
of California, 38 Cal. App. 4th 182, 192 (1995). Under section
821.6, an officer's actions during an investigation are entitled
to immunity even if they had acted negligently, maliciously or
without probable cause in carrying out his duty. Id. Defendants
cite to no case, however, that supports the proposition that
section 821.6 protection should be extended to public defenders,
who are not involved in the institution or prosecution of
judicial proceedings and, as noted earlier, are considered
private actors for purposes of section 1983 liability once they
are assigned to a client. Cf. Polk County, 454 U.S. at 325.
Defendants' motion to dismiss based on section 821.6
prosecutorial immunity is denied.
3. Cal. Gov't Code § 820.2
On reply, defendants fail to dispute plaintiffs' contention
that California Government Code section 820.2 provides immunity
for basic policy decisions but does not protect Danto's
"ministerial implementation" of that basic policy.*fn6 See
Ogborn v. City of Lancaster, 101 Cal. App. 4th 448, 461 (2002).
4. Litigation privilege
Danto argues that she is protected under the litigation
privilege provided by California Civil Code § 47 ("Privileged
publication or broadcast"), which provides that "A privileged
publication or broadcast is one made. . . . [i]n any. . . .
judicial proceeding. . . ." CAL. CIV. CODE § 47(b)(2). "Although
originally enacted with reference to defamation [citations], the
privilege is now held applicable to any communication, whether or
not it amounts to a publication [citations], and all torts except
malicious prosecution." Silberg v. Anderson, 50 Cal.3d 205, 212
(1990) (citations omitted). "Further, it applies to any
publication required or permitted by law in the course of a
judicial proceeding to achieve the objects of the litigation,
even though the publication is made outside the courtroom and no
function of the court or its officers are involved." Id.
(citations omitted). "[T]he privilege applies to any
communication (1) made in judicial or quasi-judicial proceedings;
(2) by litigants or other participants authorized by law; (3) to
achieve the objects of the litigation; and (4) that have some connection or logical
relation to the action." Id. (citations omitted). "The primary
purpose of the privilege is to afford litigants `the utmost
freedom of access to the courts without fear of being harassed
subsequently by derivative tort actions.'" Navellier v.
Sletten, 106 Cal. App. 4th 763, 770 (2003). "A threshold issue
with respect to the privilege is whether the injury arose from
`communicative acts,' which are privileged, or `non-communicative
conduct,' which is not." Id. (citing Kimmel v. Goland,
51 Cal. 3d 202, 211 (1990)). "However, the distinction between
communicative acts and non-communicative conduct ultimately
hinges on the gravamen of the action." Navellier,
106 Cal. App. 4th at 771 (citing Rubin v. Green, 4 Cal.4th 1187, 1195
Plaintiffs argue that Danto's conduct does not constitute
"communication," but rather focuses on the suppression of Bowers'
plea deal with Schon. Thus, as their claim centers around
non-communicative conduct, the litigation privilege is
inapplicable. Opp. at 17-18 (citing Mansell v. Otto,
108 Cal. App. 4th 265, 275 (2003) (unauthorized reading of mental health
records by defendants not protected by litigation privilege)).
Plaintiffs cannot dispute, however, that without the alleged plea
agreement there is no basis for a claim. As the plea agreement,
which constitutes communicative conduct, also constitutes the
gravamen of plaintiffs' action, Danto is properly protected under
the litigation privilege.
G. Leave to amend
Leave to amend should be granted unless the amendment would be
futile. FED. R. CIV. P. 15(a); Schreiber Distrib. Co. v.
Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986);
DeSoto v. Yellow Freight Sys., 957 F.2d 655, 658 (9th Cir.
1992); City of Arcadia v. U.S. Environmental Protection Agency,
265 F. Supp. 2d 1142, 1151 (N.D. Cal. 2003). Plaintiffs have
filed an amended complaint, but may be able to cure deficiencies
set forth in this order. Accordingly, plaintiffs are granted
thirty days leave to amend from the issuance of this order to
file a second amended complaint.
For the foregoing reasons, the court grants in part and denies
in part defendants' motions to dismiss as follows: plaintiffs'
Monell claims against the County based on the actions of the
district attorney, the sheriff and his deputies, and the
Conflicts Administration Program are dismissed because they are
state officials; defendants' motion to dismiss plaintiffs'
Monell claims against the County based on the actions of Public Defender Danto is denied to the extent that Danto was not
a state official, but is granted to the extent such claims are
based on Danto's failure to disclose the plea agreement, which is
barred by collateral estoppel; plaintiffs' claims against the
sheriff and district attorney are barred by Eleventh Amendment
sovereign immunity; plaintiffs' claims against the Public
Defender's Office and Conflicts Administration Program are
dismissed for failure to state a claim; plaintiffs' state claim
for damages under Article I, Section 15 is dismissed because
plaintiffs do not contest that there is no indication that
damages are provided for under Article I, Section 15; defendants'
motion to dismiss plaintiffs' Bane Act claim against the County
is denied as to Walker, but granted as to Myrtle Walker and
William Walker; plaintiffs' claims against the County based on
negligent supervision and hiring are dismissed; plaintiffs'
claims against Danto, to the extent they are based on her failure
to disclose the plea agreement, are barred by collateral estoppel
and alternatively for failure to state a claim; defendants'
motion to dismiss plaintiffs' Bane Act claim against Danto is
granted; defendants' motion to dismiss claims against Danto based
on sections 821.6 and 820.2 is denied; defendants' motion to
dismiss plaintiffs' claims against Danto based on the litigation
privilege is granted. Plaintiffs are given thirty days leave to
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