United States District Court, N.D. California
ORDER SETTING ASIDE ENTRY OF DEFAULT AND DISMISSING
COUNT ONE WITHOUT LEAVE TO AMEND
WILLIAM ALSUP UNITED STATES DISTRICT JUDGE
Section 1983 action, one defendant moves to set aside entry
of default and two defendants move to dismiss. For the
reasons below, both motions are Granted.
2013, defendant Ken Johnson, a deputy sheriff in the Sonoma
County Police Department, arrested pro se plaintiff Ronald
Mazzaferro, who now alleges Johnson arrested him without
probable cause (Compl. ¶ 12). Mazzaferro obtained
release on bond a day after the arrest (Dkt. No. 29).
Mazzaferro then sent documents about his arrest to defendant
Spencer Crum, a sergeant in the Sonoma County Police
Department. Shortly after, Mazzaferro also submitted papers
to the City Council of Sonoma regarding his arrest and
Crum's alleged unwillingness to report information given
to him by Mazzaferro (Compl. ¶¶
January 2015, Johnson arrested Mazzaferro again. While being
transported to jail, he alleges Johnson “made it
clear” to him that Johnson arrested him because he had
submitted complaints to the city council against Johnson and
Crum (id. ¶ 20).
October 2016, Mazzaferro filed this Section 1983 action
against Johnson and Crum, among others, for the violation of
his Fourth Amendment rights. Mazafferro's complaint
alleges that (1) all of the defendants caused his false
arrest and imprisonment in May 2013 and (2) that all of the
defendants caused his false arrest and imprisonment in
January 2015 (Dkt. No. 1).
January 2017, Mazzaferro moved for entry of default against
Crum for not timely responding to his complaint, which the
clerk then entered (Dkt. Nos. 23, 26).
now moves to set aside the entry of default (Dkt. No. 34).
Crum and Johnson also move to dismiss Mazzaferro's first
claim for the first alleged false arrest and imprisonment in
May 2013 (Dkt. No. 28). This order follows full briefing and
County Counsel Can Represent Crum and Johnson.
Mazzaferro contends that both the motion to set aside entry
of default and the motion to dismiss should be denied because
Sonoma County Counsel filed them on behalf of Crum and
Johnson, even though Sonoma County is not a party to this
action. This order disagrees. Sonoma County Counsel represent
employees of Sonoma County in civil actions. Here, Johnson
and Crum are both law enforcement officers of Sonoma County
and therefore can be represented by Sonoma County Counsel in
this action. Plaintiff is wrong on this contention.
Entry of Default Should be Set Aside.
moves to set aside the entry of default. In the affidavit
appended to Mazzaferro's motion for entry of default,
Mazzaferro stated that Crum was “personally
served” with the summons and complaint in December 2016
(Dkt. No. 24). Crum responds that Mazzaferro never personally
served him. In December 2016, Crum avers, Mazzaferro
attempted improper service by delivering copies of the
summons and complaint to the City of Sonoma Police
Department. Crum stopped working there in November 2015, when
his contract to provide law enforcement services to the
department on behalf of the Sonoma County Sheriff's
Office ended. (He still works for the sheriff.) Crum argues
that he has not stepped foot in the police building since
then. In early January 2016, Crum's counsel sent
Mazzaferro a letter informing Mazzaferro that he did not
properly serve the complaint, but that Crum's counsel
would accept service on Crum's behalf as of the date of
the letter. The ...