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Michael Kerkeles v. City of San Jose

October 4, 2011

MICHAEL KERKELES, PLAINTIFF AND APPELLANT,
v.
CITY OF SAN JOSE, ET. AL., DEFENDANTS AND RESPONDENTS.



Trial Court: Santa Clara County Superior Court Trial Judge: Hon. James P. Kleinberg (Santa Clara County Super. Ct. No. 1-08-CV103523)

The opinion of the court was delivered by: Elia, J.

CERTIFIED FOR PUBLICATION

Plaintiff Michael Kerkeles appeals from a judgment following the superior court's order granting summary adjudication in favor of the City of San Jose (City) and one of its police officers, Matthew Christian. Plaintiff contends that triable issues of material fact defeat defendants' motion. We agree and accordingly must reverse the judgment.

Background

On March 15, 2005, a woman called the San Jose police to report that her daughter, referred to on appeal as "Jane Doe," had been raped by a neighbor the previous day. During an interview with Officer Matthew Kurrle, Jane answered questions that described the details of a sexual assault by plaintiff. Jane was developmentally delayed, however, so Officer Kurrle was unable to establish a "distinct time line or chain of events." Jane was unwilling to undergo a SART examination that day, but the next day she was cooperative. The examination revealed a small tear in the posterior fourchette of Jane's vagina, as well as general redness in the area.

On March 21, 2005, Jane was interviewed again, this time by defendant Christian. She told him that she was 22 years old, but her mother informed Christian that Jane had the "mentality" of a seven-year-old. According to Christian's undated supplemental report, Jane said that the assault took place on a pink-and-peach-colored blanket which was located in the garage.

On May 2, 2005, a search warrant was issued for plaintiff's residence, as well as a warrant for his arrest for forcible oral copulation (Pen. Code, § 288a, subd. (c)). Two days later plaintiff was arrested and Christian served the search warrant, locating 27 pornographic magazines. In his case update, Christian stated that Jane had located the blanket she had described, and that when she saw it, she shrieked and ran away.*fn1 In addition, Christian prepared a "ruse" crime lab report indicating that plaintiff's semen had been found on the blanket. The actual report generated by the crime lab revealed no semen on the blanket. Only a bloodstain was detected, and that belonged to plaintiff.

The prosecutor successfully sought amendment of the complaint to add a charge of oral copulation involving a victim incapable of giving consent due to a disability, a violation of Penal Code section 288a, subdivision (g). Christian testified at the preliminary hearing on July 19, 2006. Among the facts he related was the false statement in the ruse report that semen had been found on the blanket. The district attorney attempted to question Jane Doe at the hearing, but it was difficult to elicit clear answers from her, and the prosecutor eventually gave up. The court granted a defense motion to strike her testimony. The court found probable cause to hold plaintiff to answer.

Twice in the weeks after the hearing, plaintiff's criminal defense attorney, Kurt Seibert, called the crime lab to discover the reason for the discrepancy between the two lab reports in his possession. He learned that the lab report on which Christian had testified was fabricated, and that the purported analyst, "Rebecca Roberts," did not exist at the lab. At some point Brooke Barloewen (identified by plaintiff as the crime lab supervisor) notified the deputy district attorney on the case, Jaime Stringfield,*fn2 that the report was a ruse. Stringfield assured Barloewen that "ruses are legal" and that "she had seen them used before."

Stringfield contacted Christian on October 11, 2006 to tell him that she had learned that the report to which he had testified was not real. She conveyed to her supervisor, Victoria Brown, that Christian "did not recall creating the document and felt that maybe someone else had, trying to be helpful, to prepare for an interrogation that did not take place." Brown asked that Christian prepare a supplemental report describing the "chain of events that [had] led to [the] fake report being mistaken for [the] real report."

In his supplemental report Christian stated that he had forgotten about the existence of the ruse report. He had given it to Stringfield along with the rest of the case file, without realizing that it was not genuine. When he testified, he "believed the report was genuine and the results the report described were accurate." When asked after the truth came to light, he told Stringfield that he had not used a ruse because plaintiff had not waived his Miranda rights after his arrest. According to Christian, after he became aware of his mistake he called a sergeant in the sexual assault unit and then called Stringfield.

On November 20, 2006, plaintiff was offered a plea deal to a reduced charge of felony false imprisonment with no jail time. On December 4, 2006, Seibert wrote to Brown and Stringfield stating that he intended to move for dismissal based on perjury by Christian, falsification of the lab report, and Brady error.*fn3 The letter was received the next day, and on December 6, the district attorney dismissed the charges against plaintiff.

Plaintiff initiated this action on January 17, 2008, naming Christian and the City, through its police department. Plaintiff generally alleged that Christian had known that he was testifying based on a fabricated report and therefore committed perjury. In the 10-count complaint, he asserted violation of his civil rights under 42 United States Code section 1983 (hereafter section 1983) and Civil Code section 52.1, abuse of process, malicious prosecution, false imprisonment, intentional and negligent infliction of emotional distress, negligence, and (against the City) negligent hiring, retention, training, supervision, and discipline.

Defendants moved for summary judgment or, alternatively, summary adjudication. The trial court granted summary adjudication of the civil rights claims and those of malicious prosecution and false imprisonment.*fn4 With respect to the causes of action for negligent infliction of emotional distress, negligence, and negligent hiring and supervision, the motion was treated as a motion for judgment on the pleadings and granted. Only the third and sixth causes of action, for abuse of process and intentional infliction ...


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