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Michelle Cameron v. David Buether

March 4, 2011


The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

[Doc. No. 60]


Presently before the Court is a motion for summary judgment filed by Defendants Michelle Craig and the County of San Diego. [Doc. No. 60.] For the reasons discussed below, the Court GRANTS Defendants' motion on all of Plaintiff's claims as they relate to Defendants Craig and the County.


Factual Background

Plaintiff Michelle Cameron and Defendant David Buether ("Buether") were previously in a romantic relationship, lived together for nearly four years, and had two children together. [Pl.'s Exs. ISO Opp'n to Defs.' Mot. for Summary Judgment, Dep. of David Buether [hereinafter "Buether Dep."], at 18:12-18:21, 32:22-33:9, 36:14-36:22.] Defendant Buether was and is employed as a Deputy Sheriff with the San Diego County Sheriff's Department. [Buether Dep., at 69:24-72:9.] After moving in with Buether and just before the birth of their first child in October 2006, Plaintiff stopped working to care for their child. [Pl.'s Opp'n to Defs.' Mot. for Summary Judgment, Ex. B, Decl. of Michelle Cameron [hereinafter "Cameron Decl."], ¶¶ 6, 12.]

When Plaintiff and Buether moved in together, they opened a joint checking account. Plaintiff did not have any other accounts under her name and believed all their finances were commingled. [Cameron Decl., ¶ 5.] Plaintiff used the joint checking account to make purchases for herself, their children, and their household. [See Buether Dep., at 123:19-129:2.]

From approximately 2005 until December 2007, Cameron and Buether lived together in Cameron's apartment. [See Buether Dep., at 43:1-45:4; Cameron Decl., ¶¶ 2, 5.] In or about September 2007, Buether purchased a home, titled in his name only, into which he and Plaintiff moved. [See Cameron Decl., ¶ 4-5; Decl. of Michelle Craig ISO Defs.' Mot. for Summary Judgment [hereinafter "Craig Decl."], ¶ 6.] Although Buether owned their home, Plaintiff became a co-debtor with him on a home equity line of credit ("HELOC") of $125,000. [Cameron Decl., ¶8; Buether Dep., at 45:24-47:14.]

Buether possessed a credit card, issued solely to Buether by U.S. Bank. [Buether Dep., at 117:18-118:13; Craig Decl., ¶ 8.] Plaintiff claims that she believed the credit card was for their joint use and that Buether gave the credit card number to her for her personal use and household use on numerous occasions. [Cameron Decl., ¶¶ 6-7.] Buether maintains that, while he used the card with Plaintiff on at least one occasion during their relationship, he never granted permission for her to use the card without his being present and she did not have permission to use the card once the relationship had ended. [Buether Dep., at 118:3-121:9; Craig Decl., ¶ 8.]

In June 2007, while Plaintiff and Buether still lived together, Buether registered both Plaintiff and himself with LifeLock, a company that monitors the use of subscribers' personal information to prevent identity-theft. [Buether Dep., at 113:12-118:19; Cameron Decl., ¶ 11.]

On October 8, 2008, Buether obtained a restraining and kick-out order against Plaintiff, alleging two unreported incidents of domestic violence. [See Defs.' Mot. for Summary Judgment, Ex. 3, Craig Aff. ISO Search Warrant [hereinafter "Craig Aff. ISO Warrant"], at Bates No. 30; Cameron Decl. ¶ 16.] Plaintiff immediately moved out of Buether's home and into a friend's residence after being served with the order. [See Buether Dep., at 62:13-17; Craig Decl., ¶ 6.] As Cameron left Buether's home, she asked Buether what she was supposed to do without any belongings; he told her to "do whatever you need to do." [Cameron Decl., ¶ 16.] A few days before Buether obtained the restraining order, Plaintiff removed $30,000 from their joint home equity line of credit. [See Craig Decl., at ¶ 6 (stating that Buether told her Cameron withdrew $25,000 one day before she moved out); see also, e.g., Buether Dep., at 49:17-51:4; 152:17-23 (discussing Cameron's withdrawal from the HELOC in the amount of $30,000).]

The children initially stayed with Buether but began splitting time between their two parents after Buether rescinded the restraining order near the end of October 2008. [See Buether Dep., at 105:22-106:18.] During that time, Plaintiff and Buether were involved in mediation to resolve custody of the children. [Cameron Decl., ¶ 19.]

On October 13, 2008, Plaintiff used the U.S. Bank credit card issued solely to Buether to purchase items from, including furniture for herself and her children, jewelry, home decorations, and a refurbished flat-screen television. [Craig Aff. ISO Warrant, at Bates No. 27-31.] Plaintiff made three purchases, totaling $8,969.38. [Id. at 30; Craig Decl., at ¶ 3.]

Buether claims that he became aware of the charges to his credit card only after receiving his monthly statement in early November 2008. [Craig Decl., ¶¶ 1-3.] On November 14, 2008, Buether filed a complaint against Plaintiff with the San Diego County Sheriff's Department, alleging that she fraudulently used his credit card. [Id.] Buether's case was assigned to Defendant Michelle Craig ("Craig"), a detective with the Sheriff's Department. [Id.]

According to Plaintiff, Buether and Craig attended the law enforcement academy training together, worked together, and maintained a social relationship. [Cameron Decl., ¶ 14.] Buether and Craig, however, contend they had only a limited professional relationship with one another before Craig was assigned to investigate Buether's allegations. [See Craig Decl., ¶ 16; Buether Dep., at 101:10-102:23.]

During the investigation, Craig took statements from Buether and contacted [Craig Decl., ¶¶ 3-9.] Buether told Craig that, upon receiving the monthly statement for the U.S. Bank credit card, he learned that someone had used his card to make three purchases from, totaling nearly $9,000. He inquired about the charges, and Overstock confirmed that someone had used his card to make the purchases, but Overstock refused to identify the purchaser. [Id. ¶ 3.] Buether stated that he thought Plaintiff, his ex-girlfriend, may have made the purchases, even though she was not on that account or authorized to use it. [Id.] He further reported that, though he and Plaintiff had used the card to make purchases together in the past, he was present each time the card was used, he never gave Plaintiff permission to use the card, and he had possession of the only card issued to that account. [Id.] Buether stated that he did not recall giving Plaintiff the credit card number, but he speculated that she had recorded the card number and was now using it to make purchases. [Id.]

Buether further informed Craig he and Plaintiff lived with each other for the previous four years and had two children together, but they never married. [Id. ¶ 5.] Their relationship deteriorated, according to Buether, after Plaintiff grew violent with him. Plaintiff moved out of his home after Buether obtained a restraining order against plaintiff alleging two instances of domestic violence. [Id. ¶ 6.] Buether later rescinded that order. [Id.]

He made Craig aware that Plaintiff had withdrawn $30,000 from their HELOC. [Id.] Buether visited Plaintiff's new residence shortly after rescinding the restraining order and saw several new items purchased from Overstock. [Id.] Buether believed Plaintiff used the funds she withdrew from the account to furnish her new residence. [Id. ¶¶ 8, 12.]

Finally, Buether told Craig that he confronted Plaintiff about the purchases on his credit card. ¶ 7.] Plaintiff responded by asking, "Oh, you mean our joint credit card?" Buether replied, "Since when was it our joint credit card?" [Id.] After the exchange, Plaintiff immediately changed the subject. [Id.] Craig interpreted this episode to suggest that Plaintiff knew she did not have permission to use Buether's card. [Defs.' Reply, Supplemental Declaration of Michelle Craig ISO Mot. for Summary Judgment [hereinafter "Supp. Craig Decl."], ¶ 1.]

Craig contacted and confirmed Plaintiff had made the purchases. [Craig Decl., ¶ 5.] Overstock also informed Craig that U.S. Bank had charged back approximately $8,800 from Plaintiff's purchases, making Overstock another victim. [Id. ¶ 9.] Overstock desired prosecution on the fraudulent charges. [Id.]

On December 15, 2008, Craig presented an affidavit in support of a search warrant to a Superior Court judge. The judge issued the warrant for a search of Plaintiff's home. [Id. ¶¶ 10-11.]

On December 18, 2008, at 7:00 a.m., a team of between six and ten deputies executed the search warrant. The deputies entered Plaintiff's residence, confiscated furniture and other goods purchased with Buether's credit card (the items listed in the search warrant), and arrested Plaintiff. [Id. ¶¶ 14; Cameron Decl., ¶ 18.] Plaintiff spent approximately five days in jail before she posted bail and was released. [Cameron Decl., ¶ 18.] The matter was referred to the District Attorney for prosecution.

Plaintiff was charged with grand theft, identity theft, and credit card fraud. Buether and Craig testified at a preliminary hearing before the Honorable Harry Powazek on February 23, 2009. [Defs.' Mot. for Summary Judgment, at 3-4; see also id., Ex. 6, Transcript of Plaintiff's Preliminary Hearing [hereinafter "Trans. Prelim. Hr'g"], at 4, 48.] The judge heard testimony regarding the professional relationship between Craig and Buether, as well as Plaintiff and Buether's joint checking account, joint HELOC, and Plaintiff's claims of prior permitted use of Buether's credit card. [Id. at 4, 11, 15-16, 45,

48.] At the hearing's conclusion, Judge Powazek found probable cause that "the offenses listed in the complaint-the three counts-have been proven and committed. And there is sufficient cause to believe that [Plaintiff] is guilty thereof." [Id. at 50-51.]

Plaintiff was bound over for trial. After the preliminary hearing, Plaintiff's case was assigned to a second Deputy District Attorney, Katherine A. Flaherty. Ms. Flaherty elected to dismiss the charges against Plaintiff. [See Pl.'s Notice of Lodging Exs. ISO Opp'n to Mot. for Summary Judgment, Doc. No. 63-6, Deposition of Katherine Flaherty, at 26:22-29:14.]

Relevant Procedural History

Plaintiff alleges a Section 1983 claim against Buether and Craig and state law causes of action for negligence, false arrest, and violation of California Civil Code § 52.1 against all Defendants. [Third Amended Complaint ("TAC"), Doc. No. 36.] Defendants Craig and the County (the "County Defendants") filed a motion to dismiss Plaintiff's negligence claim, [Doc. No. 39], which the Court granted with prejudice. [Doc. No. 48.] The County Defendants now move for summary judgment on Plaintiff's remaining causes of action as they relate to Defendants Craig and the County. [Doc. No.


"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R.CIV. P. 56(a). A genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Miller v. Glenn Miller Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006).

In order to prevail, a party moving for summary judgment must show the absence of a genuine issue of material fact with respect to an essential element of the nonmoving party's claim, or to a defense on which the nonmoving party will bear the burden of persuasion at trial. Nissan Fire & Marine Ins. Co. v. Fritz Cos. Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). When the nonmoving party would bear the burden of proof at trial, the moving party may satisfy its burden on summary judgment by simply pointing out to the Court an absence of evidence from the nonmoving party. Miller, 454 F.3d at 987. "The moving party need not disprove the other party's case." Id.

Once the movant has made that showing, the burden shifts to the opposing party to produce "evidence that it significantly probative or more than 'merely colorable' that a genuine issue of material fact exists for trial." LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009) (citing FTC v. Gill, 265 F.3d 944, 954 (9th Cir. 2001)); see also Miller, 454 F.3d at 988 ("[T]he non-moving party must come forward with more than 'the mere existence of a scintilla of evidence.'") (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

The Court must review the record as a whole and draw all reasonable inferences in favor of the nonmoving party. Hernandez v. Spacelabs Med. Inc., 343 F.3d 736, 738 (9th Cir. 2000). However, unsupported conjecture or conclusory statements are insufficient to defeat summary judgment. Id.; Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1103 (9th Cir. 2008). "Thus, '[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.'" Miller, 454 F.3d at 988 (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio , 475 U.S. 574, 587 (1986)).


Defendants Craig and the County move for summary judgment on Plaintiff's claim under 42 U.S.C. § 1983 and each of her state law claims. Nearly all of Plaintiff's claims turn on her allegation that Defendant Craig obtained a search warrant with an affidavit that omitted material exculpatory information. As a result, Plaintiff alleges, the search warrant issued without probable cause and the subsequent search of Plaintiff's residence violated her Fourth Amendment rights.*fn1 Plaintiff also appears to claim the manner in which Craig and the Deputy Sheriffs under her supervision conducted the search violated her constitutional rights.

Plaintiff further alleges that, because there was no probable cause to search her residence, any evidence seized during that search should not have been used to support probable cause to arrest Plaintiff. Thus, Plaintiff alleges that she was arrested without probable cause, also in violation of the Fourth Amendment.

Plaintiff's Claims Under 42 U.S.C. § 1983 Plaintiff alleges Craig violated her Fourth Amendment rights and seeks damages pursuant to 42 U.S.C. § 1983. The County Defendants argue summary judgment is appropriate because Plaintiff has failed to provide evidence tending to show a constitutional violation for ...

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