The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION AND ORDER DENYING DEFENDANTS' MOTION TO DISMISS FIRST AMENDED COMPLAINT (Doc. 17)
Plaintiff Maximilian Eddie Vargas filed a First Amended Complaint (FAC) pursuant to the Memorandum Decision and Order filed on March 26, 2009 (hereafter the March 26 Memorandum Decision) granting Defendants' motion to dismiss the Complaint with leave to amend.
The FAC names as Defendants Deputy District Attorney Moranda, in his official and individual capacities, and Does 1- 50.*fn1 The factual allegations of the FAC are:
5. Twenty years ago Daniel Robert Thompson, who was at that time Vargas' friend, was accused of a homicide. Vargas was interrogated by Merced law enforcement in connection with the investigation.
6. More recently the case against Thompson was reopened by the Merced District Attorney's Office and Merced County District Attorney's investigator Anna Hazell called Vargas two or three times on the telephone. Each time Anna Hazell called, Vargas answered and spoke to her, or returned her call.
7. After Anna Hazell called Vargas, Merced County Deputy District Attorney David Maranda also called Vargas at least twice. Again, each time Maranda called, Vargas either answered and spoke to him or returned his call and spoke to him.
8. All conversations between Vargas and County of Merced District Attorney personnel pertained to Vargas meeting with Maranda to discuss what his testimony would be if the District Attorney called him to testify at Thompson's trial. No person from the District Attorney's office or from Merced County Sheriff's office told Vargas there was a trial pending, or going on, or told Vargas that his testimony at a trial was required.
9. On Friday, January 25, 2008 at approximately 5:41 p.m.. Vargas was arrested pursuant to a bench warrant by County of Merced deputy Sheriff Hale 5156. The bench warrant was issued by Judge John Kirihara.
10. At the time Vargas was arrested a call was made to Judge Kirihara, who verbally increased the bail set for Vargas to $75,000.
11. To obtain the bench warrant Maranda misrepresented to the court: (a) that a subpoena compelling Vargas appearance trial had been issued; (d) that service of the subpoena had been attempted, and, (c) Vargas had avoided service. None of these three representations were true. Maranda had no reasonable belief that any of the three misrepresentations were true:
(a). The subpoena had not been issued at the time Maranda misrepresented it had been. The subpoena to compel Vargas to appear at the trial was not issued until January 25, 2008; the same date that Vargas was arrested on the bench warrant. (Exhibit A. attached hereto and made a part of this complaint).
(b). There had been no previous attempts to serve the subpoena on Vargas. The subpoena was issued on the same day Vargas was arrested. (Exhibit A). As stated in the Merced County Sheriff's Department Felony Arrest Warrant Report, the only document the Sheriff received to serve on Vargas was the arrest warrant; not the subpoena. The Felony Arrest Warrant Report makes no mention whatsoever of the subpoena, or any knowledge thereof. (Exhibit B attached hereto and made a part of this complaint).
(c). Vargas did not, at any time, avoid service of the subpoena. If asked, when he talked to the district attorney investigator and Maranda on several different occasions, he would have gone to the district attorney's office to accept service of the subpoena. No attempt to serve the subpoena on Vargas was made until he was (successfully) served while he was in jail after being arrested.
12. Vargas was booked into Merced County Jail. While Vargas was in jail, he was served with a subpoena to appear Monday morning, January 28, 2008 to testify at Thompson's trial.
13. Vargas bailed out of the Merced County Jail late Friday night or early Saturday morning, January 25 or 26, 2008.
14. Vargas appeared Monday morning, January 28, 2008 and testified at Thompson's trial.
15. Vargas was harmed financially in that he lost the $7,500 he posted for bail after being arrested on Friday, January 25, 2008.
Vargas also suffered general, pain and suffering, emotional distress, and special damages as a result of the arrest.
Attached as Exhibit B to the FAC is a copy of the Merced County Sheriff's Department's Felony Warrant Arrest Report, which states:
On January 25, 2008, I received a court order in regards to Superior Court Case MF43481, Defendant Daniel Robert Thompson. Presiding Superior Court Judge John Kirihara signed the court order, issuing a bench warrant for ...