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Penny I. Frazer, As Successor, Etc v. County of San Joaquin et al


January 26, 2011


(Super. Ct. No. CV027720)

The opinion of the court was delivered by: Butz,j.

Frazer v. County of San Joaquin CA3


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In this lawsuit, plaintiff John Miller, through his successor in interest, Penny I. Frazer, alleges that defendant Bruce Hopperstad, San Joaquin County's former Director of Mental/Behavioral Health, improperly had Miller investigated, arrested, jailed and prosecuted, for allegedly doing self-dealing handyman work. This work was done for clients of Miller's sister, Lauri Tribbey, while Tribbey was a deputy public guardian for the county.*fn1

The trial court granted summary judgment for defendants Hopperstad and San Joaquin County (the County). We shall affirm. We will set forth the facts as we discuss the issues.


I. The Complaint

A defendant's motion for summary judgment must address the liability theories alleged in the complaint. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.)

The claims surviving Miller's death that are alleged in his complaint are: violation of civil and constitutional rights (first cause of action); violation of civil rights under title 42 United States Code section 1983 (second cause of action); the County's failure to supervise its employees, i.e., supervisor liability under title 42 United States Code section 1983 (sixth cause of action); and false imprisonment (third cause of action).

The alleged basis of these claims is that Hopperstad, individually and on behalf of the County, made a false report to law enforcement alleging elder/dependent-adult abuse by Miller and actively caused Miller to be unlawfully arrested, jailed and prosecuted, thereby violating his civil and constitutional rights and falsely imprisoning him.

II. Summary Judgment Standard of Review

The aim of the summary judgment procedure is to discover, through the use of declarations and other evidence disclosed prior to trial, whether the parties possess evidence of disputed issues of material fact requiring the factfinding process of a trial. (Kurokawa v. Blum (1988) 199 Cal.App.3d 976, 988.)

We review the trial court's summary judgment decision independently, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained. (Roe v. McDonald's Corp. (2005) 129 Cal.App.4th 1107, 1113 (Roe).) If a defendant moving for summary judgment shows, through its evidentiary papers, that the plaintiff cannot establish at least one element of the plaintiff's cause of action, the burden shifts to the plaintiff to present evidence that a triable issue of material fact actually exists as to that element; if the plaintiff cannot do so, summary judgment results. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853-854 (Aguilar); Johnson v. United Cerebral Palsy/Spastic Children's Foundation (2009) 173 Cal.App.4th 740, 753-754 (Johnson).)

Because a summary judgment denies the losing party a trial, we liberally construe the evidence in support of that party and resolve doubts concerning the evidence in that party's favor. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.)

III. The Summary Judgment Papers

A. Defendants' Papers

Hopperstad's and the County's (collectively, defendants) motion for summary judgment is based on four declarations: one from Hopperstad, the County's now-retired Director of Mental/Behavioral Health Services, who oversaw the Office of the Public Guardian during the relevant time here; the second from Garold Murray, a criminal investigator for the San Joaquin County District Attorney's Office; the third from Rosie Gipson, who performed auditing for the Office of the Public Guardian during the relevant time here; and the fourth from Jeffrey Derman, a deputy district attorney. These declarations disclose the following.

Following complaints alleging elder/dependent-adult abuse by Deputy Public Guardian Tribbey, Hopperstad met with the district attorney's office, which initiated an investigation. Pursuant to recommendations from the district attorney's office and from district attorney investigator Murray, a complete audit was undertaken by the Office of the Public Guardian (under Murray's direction) of all conserved client accounts, files and cases handled by Tribbey.

As a result of Murray's investigation and directions to the Public Guardian auditor, it was determined that Tribbey was inappropriately hiring her brother, John Miller (doing business as J&J Repair and, through his employer, Ace Hardware), to perform home repair and yard clean-up services for Tribbey's conserved clients, with checks being issued to Miller at Tribbey's request. Murray determined that although this work had been paid for by the conserved clients, the work had not been completed in all instances, and much of it was done without proper permits or a contractor's license.

Murray reported his investigation to the district attorney's office. After review, that office independently decided to file criminal charges against Miller and have him arrested.

Tribbey was convicted of three felony offenses involving similar conflict of interest activities with two other relatives and a friend, while employed as a deputy public guardian.

B. Defendants' Papers Meet the Initial Summary Judgment Burden

As we will explain, defendants' evidentiary papers show that plaintiff Miller cannot establish at least one element of each of his four surviving causes of action.

As noted, the basis of plaintiff's surviving causes of action is that Hopperstad, individually and on behalf of the County, made a false report to law enforcement of elder/dependent-adult abuse by Miller and actively caused Miller to be unlawfully arrested, jailed and prosecuted, thereby violating his civil and constitutional rights and falsely imprisoning him.

The evidence set forth in defendants' summary judgment papers shows that Hopperstad (and through him, the County) did not play any active role in the investigation, arrest, jailing or prosecution of Miller. (The County's role in this lawsuit is tied to its actions through Hopperstad.) Hopperstad brought the issue of suspected abuse on Tribbey's part to the attention of the district attorney's office. That office then investigated Tribbey. That investigation implicated Miller and resulted in the district attorney's decision to arrest and prosecute him.

Plaintiff's claims of civil/constitutional rights deprivation, supervisor liability, and false imprisonment, all require some sort of affirmative act or omission on the part of defendants directed at Miller, which did not occur according to defendants' summary judgment papers. (See Jones v. Williams (9th Cir. 2002) 297 F.3d 930, 934 [for deprivation of civil/constitutional rights, title 42 United States Code "[s]section 1983 does not create any substantive rights; rather it is the vehicle whereby plaintiffs can challenge actions by governmental officials"; liability under section 1983 requires "a showing of personal participation in the alleged rights deprivation"]; Jeffers v. Gomez (9th Cir. 2001) 267 F.3d 895, 915 [for supervisor liability, "[a] supervisor may be liable under [section] 1983 only if there exists either '"(1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation"'"]; and Easton v. Sutter Coast Hospital (2000) 80 Cal.App.4th 485, 496 [false imprisonment requires an act of intentional confinement without lawful privilege].)

C. Plaintiff's Papers

Because defendants' summary judgment papers show that plaintiff cannot establish at least one element of his causes of action, the burden shifts to plaintiff to present evidence that a triable issue of material fact actually exists as to those elements. (Aguilar, supra, 25 Cal.4th at pp. 853-854; Johnson, supra, 173 Cal.App.4th at pp. 753-754.)

Plaintiff's summary judgment papers include two pieces of evidence he deems critical.

The first piece of evidence is an excerpt from Tribbey's preliminary hearing transcript in which Deputy District Attorney Derman informed the court:

"Regarding John Miller, . . . I had explained to the Court that the basis . . . for those charges were some home repairs that were done for dependent adult clients for which Ms. Lauri Tribbey was a deputy public guardian. She utilized the . . . Ace Hardware [where her brother, John Miller, was an employee]. [¶] The People believe that certainly, number one, that constitutes a conflict of interest utilizing her brother . . . [b]ut as far as the criminal liability for Mr. Miller . . . , the Court felt that [Miller's] liability . . . for those counts rested more I think with . . . Ace Hardware . . . rather than with Mr. Miller himself . . . . [¶] And based on the Court's feeling, the People will be moving to dismiss the counts against Mr. John Miller only."

The second piece of evidence in plaintiff's summary judgment papers is district attorney investigator Murray's deposition, which plaintiff claimed, in a (summary judgment) evidentiary objection, was contradicted by Murray's summary judgment declaration.

As quoted from plaintiff's opening brief, in that deposition Murray testified: "that after speaking to Hopperstad he believed there was potential for fraud and conflict of interest involving Lauri Tribbey; that Hopperstad told him Lauri Tribbey was using family members to provide services for clients and those services were a conflict of interest and against their policies; that Hopperstad used the phrase 'conflict of interest' regarding Lauri Tribbey to him; that Hopperstad told him what the conflict of interest was and what the [Public Guardian's] Office policy was[;] . . . that Hopperstad told him that employees were not allowed to do business with family members, with other employees or other people they have personal business with on behalf of a client; that Hopperstad told him conflict of interest, that is, having an employee utilize a family member to perform service was not only a strict office policy but it was precluded by statute and not legal; [and] Murray could not locate any written policies on conflict of interest for Hopperstad's department." (Record citations omitted.)

Murray further testified in his deposition, again as quoted from plaintiff's opening brief: "that there were no . . . complaints of elder[/]dependent[-]adult abuse committed by John Miller; . . . that John Miller was an employee of Ace Hardware; . . . that the repairs performed by Ace Hardware were the subject of the criminal charges against John Miller; . . . that Lauri Tribbey engaged the services of Ace Hardware through its owner . . . ; that there was no conflict of interest in Lauri Tribbey engaging [the owner] of Ace Hardware to do work for conserved client[s]; [and] that there was no conflict in [the owner] or Ace Hardware doing the work." (Record citations omitted.)

D. Plaintiff's Papers Do Not Raise a Triable Issue of Material Fact

There are two problems with these two pieces of evidence in plaintiff's summary judgment papers.

The first problem concerns the first piece of evidence. The trial court sustained defendants' evidentiary objection to Tribbey's preliminary hearing transcript (this objection focused on investigator Murray's testimony at that hearing, but encompassed the entire transcript), and plaintiff has not challenged that ruling on appeal.

"'Where a plaintiff does not challenge [on appeal] the superior court's ruling sustaining a moving defendant's objections to evidence offered in opposition to the summary judgment motion, "any issues concerning the correctness of the trial court's evidentiary rulings have been waived. [Citation.] We therefore consider all such evidence to have been 'properly excluded.' [Citation.]" [Citations.] [¶] The reason for this rule is that '[t]rial courts have a duty to rule on evidentiary objections.' [Citation.] '[R]uling on such evidentiary objections can involve a number of considerations more suited to the trial court than the appellate courts, including an exercise of discretion in establishing the record to be reviewed . . . .'" (Roe, supra, 129 Cal.App.4th at pp. 1113-1114.)

Plaintiff counters that the trial court failed to rule on the summary judgment evidentiary objections. Plaintiff is mistaken.

At the summary judgment hearing, the trial court, in ruling on plaintiff's evidentiary objections, stated with respect to plaintiff's objections to investigator Murray's declaration (although the court mistakenly referred to this as Jeffrey Derman's declaration): "The Court's indicated [ruling] was to grant the summary judgment. There were also several objections in paragraph 6, the term[s] 'inappropriately' and 'overpriced' are legal conclusions, and that's going to be sustained. [¶] Paragraph 10, 'substandard quality' is also an opinion. That's going to be sustained. [¶] Paragraph 16, is it really material to the summary judgment[,] and all other objections are overruled." The trial court carried this ruling into its summary judgment order (with an irrelevant numerical discrepancy), and additionally ordered: "All of Defendants' [evidentiary] objections are sustained."

In a related vein, plaintiff likens the trial court's decisionmaking process here to that of the trial court in Carnes v. Superior Court (2005) 126 Cal.App.4th 688 (Carnes), and claims the trial court here failed to comply with the statutory requirement that a trial court "specify the reasons for its determination [granting summary judgment]" (Code Civ. Proc., § 437c, subd. (g); hereafter, section 437c(g)). Again, plaintiff is mistaken.

In Carnes, we disapproved of the "total abdication of judicial responsibility" by the trial court there in granting a summary judgment. (Carnes, supra, 126 Cal.App.4th at p. 692.) The trial court in Carnes did not make a tentative ruling before the summary judgment hearing; conceded at that hearing that it had only "'sort of scanned'" the papers to that point; failed to make any rulings on the parties' evidentiary objections, although requested to do so; and simply ruled in granting summary judgment: "The Court grants defendants [sic] Motion for Summary Judgment and adjudicates each cause of action in defendants [sic] favor. Defendant to prepare the form of this order and include . . . all findings necessary to support this order." (Id. at pp. 691-693.)

Here, the trial court did not abdicate judicial responsibility in deciding to grant summary judgment: It made a tentative ruling; it made rulings on evidentiary objections; and it did not ask the prevailing party to prepare the reasoning for granting summary judgment.

As for the statutory requirement of section 437c(g) (reasons for summary judgment must be specified), it is true the trial court here cryptically ruled initially: "Motion for Summary Judgment is GRANTED. There are no disputed facts." But the trial court later signed a six-page summary judgment order prepared by defendants, which specified the reasons for granting summary judgment. We concluded, in Carnes, that a similar process satisfied section 437c(g) (notwithstanding we otherwise disapproved of the trial court's decisionmaking process there). We said: "By signing the order [prevailing] counsel prepared, the judge adopted that order as his own, and thus that order is the order required by [section 437c(g)] . . . . [The losing party] points to nothing in the record suggesting the judge adopted the proposed order without any critical analysis whatsoever. Thus, we must presume the judge reviewed the order and determined that the reasons expressed therein for granting the motion were sound." (Carnes, supra, 126 Cal.App.4th at p. 693.) We do not doubt that section 437c(g) was met here, where we have not disapproved of the trial court's decisionmaking process.

The second problem with the two pieces of evidence in plaintiff's summary judgment papers is much simpler, and more significant, as it covers both pieces.

Even if we assume these two pieces of evidence are properly before us--that is, (1) the statement from Deputy District Attorney Derman at Tribbey's preliminary hearing, dismissing the charges against Miller only because the court felt, contrary to the district attorney's office, that liability may have rested more with Miller's employer, Ace Hardware; and (2) the deposition of investigator Murray, which showed that Hopperstad initiated only the investigation of Tribbey and may have had an active role in her prosecution for conflict of interest--these two items of evidence do not change the result here. This is because this evidence does not raise a triable issue of material fact that Hopperstad, individually or on behalf of the County, made a false report to law enforcement alleging elder/dependent-adult abuse by Miller and actively caused Miller to be unlawfully investigated, arrested, jailed and prosecuted.

Finally, plaintiff argues that the trial court's summary judgment order does not address Hopperstad's individual liability, and that there are triable issues of fact as to Hopperstad's individual liability for which the defense-claimed liability immunities do not apply. The summary judgment order states that "Hopperstad never stepped out of his capacity as the Director of Mental/Behavioral Health." And, given that we have resolved this matter based on the absence of triable issues of fact, it is unnecessary to discuss the liability immunities defendants presented as well.


The judgment is affirmed. Defendants are entitled to their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

We concur:



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