Daniels v. Alameda County

          ORDER RE: DEFENDANTS' MOTION TO DISMISS AND STRIKE FIRST AMENDED COMPLAINT RE: DKT. NO. 54

          JACQUELINE SCOTT CORLEY, UNITED STATES MAGISTRATE JUDGE.

         Paul Daniels and Nanette Dillard allege that they were prosecuted by the Alameda County District Attorneys' Office in retaliation for exercising their First Amendment rights. The Court previously granted Defendants' motion to dismiss Plaintiffs' Section 1983 malicious and retaliatory prosecution claim because Plaintiffs had not plausibly alleged that each defendant caused Plaintiffs' prosecution or that there was an absence of probable cause for their prosecution. (Dkt. No. 48.) In response to Plaintiffs' First Amended Complaint, Defendants have again moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) and to strike the state law claims under California Code of Civil Procedure § 425.16, the anti-Strategic Lawsuits Against Public Participation (anti-SLAPP) statute.^[1] (Dkt. No. 54.) Having considered the parties' briefs and having had the benefit of oral argument on November 21, 2019, the Court GRANTS Defendants' motion to dismiss without leave to amend. Plaintiffs have failed to cure the pleading defects in their First Amended Complaint.

         DISCUSSION

         Defendants move to dismiss Plaintiffs' claims on multiple grounds. The threshold question, however, is whether Plaintiffs have adequately pled their malicious and retaliatory prosecution Section 1983 claims and cured the pleading defects identified in the Court's prior Order. Because they have not, the Court need not and does not address Defendants' other arguments.

         A. Section 1983 Malicious and Retaliatory Prosecution Claims

         To prevail on a section 1983 malicious prosecution claim a plaintiff must prove that criminal proceedings were instituted with malice, without probable cause, and for the purpose of denying the plaintiff a specific constitutional right. Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995). The claim “requires ‘the institution of criminal proceedings against another who is not guilty of the offense charged' and that ‘the proceedings have terminated in favor of the accused.'” Lacey v. Maricopa Cty., 693 F.3d 896, 919 (9th Cir. 2012) (quoting Restatement (Second) of Torts § 653 (1977)). A Section 1983 retaliatory prosecution claim requires a showing of a “‘retaliatory motive on the part of an official urging prosecution combined with an absence of probable cause supporting the prosecutor's decision.'” Beck v. City of Upland, 527 F.3d 853, 865 (9th Cir. 2008) (quoting Hartman v. Moore, 547 U.S. 250, 265 (2006)).

         The Court's prior order examined Plaintiffs' malicious and retaliatory prosecution claims in detail. The claims were dismissed because (1) Plaintiffs had not adequately tied their allegations to misconduct by any particular defendant, and (2) Plaintiffs had not adequately alleged an absence of probable cause. The same defects remain.

         1) Allegations Tying Defendants to the Prosecution

         To state either a malicious or retaliatory prosecution claim, Plaintiffs must allege facts that support a plausible inference that each defendant “improperly exerted pressure on the prosecutor, knowingly provided misinformation to him, concealed exculpatory evidence, or otherwise engaged in wrongful or bad faith conduct that was actively instrumental in causing the initiation of legal proceedings.” Awabdy v. City of Adelanto, 368 F.3d 1062, 1067 (9th Cir. 2004); see also Beck, 527 F.3d at 865 (holding that a retaliatory prosecution claim requires a showing of a “retaliatory motive on the part of an official urging prosecution combined with an absence of probable cause supporting the prosecutor's decision”); Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988); see also Gressett v. Contra Costa Cty., No. C-12-3798 EMC, 2013 WL 2156278, at *15 (N.D. Cal. May 17, 2013) (the plaintiff must “plead sufficient facts to hold each Individual Defendant liable for malicious prosecution”).

         Plaintiffs' amended complaint fails allege facts sufficient to show that each of the named defendants-Alameda County, the Alameda County Auditor-Controller Agency, the Alameda County Board of Supervisors, Nate Miley, Scott Haggerty, and Patrick O'Connell-“engaged in wrongful or bad faith conduct that was actively instrumental in causing the initiation of legal proceedings.” Awabdy, 368 F.3d at 1067. With respect to Defendants Miley and Haggerty, Plaintiffs (1) quote a news article stating that “Scott Haggerty says he has spoken to the District Attorney's office about a criminal investigation into Dillard's involvement in allegedly bilking ACAP, ” and (2) allege that “Miley and Haggerty were both exerting political pressure upon the District Attorney's Office to find something for which Dillard could be prosecuted.” (FAC at ¶ 18.) The “mere allegation” that Mr. Haggerty had a conversation with the District Attorney a year before Plaintiffs was charged does not plausibly suggest that the District Attorney brought the charges because of what Mr. Haggerty said. See Bala v. Stenehjem, 671 F.Supp.2d 1067, 1096 (D.N.D. 2009) (“the mere allegation that former United States Attorney Wrigley met with law enforcement officials, state authorities, and the IRS does not suggest plausible illicit activity.”). Similarly, the “bare allegation” that Mr. Miley and Mr. Haggerty were exerting political pressure on the District Attorney to bring charges is a conclusory statement that is “little more than a formulaic recitation of the elements.” Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009); see also Riley v. City of Richmond, No. C 13-4752 MMC, 2014 WL 1101036, at *2 (N.D. Cal. Mar. 18, 2014) (finding that “plaintiff's conclusory allegations that ‘the case lacked probable cause for prosecution' [] and that defendants ‘provided misinformation' to and ‘concealed exculpatory evidence' from the prosecutor [], are insufficient as a matter of law”).

         Nor have Plaintiffs included specific allegations which tie Alameda County, the Alameda County Board of Supervisors, the Alameda County Auditor-Controller Agency, and Patrick O'Connell to the alleged wrongful prosecution. Indeed, for Defendants the Alameda County Auditor-Controller Agency and Patrick O'Connell, the only allegation as to them has nothing do with the District Attorney and instead is that they “created a fraudulent accounting purporting to verify that ACAP lacked funds to go forward” so that Mr. Miley and Mr. Haggerty could dismantle ACAP and dismiss all its employees including Mr. Daniels. (FAC at ¶ 17.) Similarly, while there are numerous allegations with respect to Alameda County and the Alameda County Board of Supervisors, there are no allegations which tie these entities' actions to Plaintiffs' prosecution except for the allegation that an “Alameda County representative” threatened Ms. Dillard at the mediation of her Brown Act case that if she did not refund the settlement payment she and Mr. Daniels would be prosecuted. (FAC at ¶ 27.) This vague allegation that an unnamed Alameda County representative threatened Ms. Dillard does not plausibly support an inference that the Alameda County Board of Supervisors or Alameda County caused the District Attorney's Office to bring charges two weeks later-two months before the Brown Act case settled. (Id. at ¶ 29.)

         Plaintiffs have therefore again failed to allege a plausible basis for liability as to any Defendant.

         2) Absence of Probable Cause

         “[A] plaintiff alleging a retaliatory prosecution must show the absence of probable cause for the underlying criminal charge. If there was probable cause, the case ends.” Lozman v. City of Riviera Beach, Fla., 138 S.Ct. 1945, 1952 (2018) (citing Hartman v. Moore, 547 U.S. 250, 265-66 (2006)); see also Nieves v. Bartlett, 139 S.Ct. 1715, 1726 (2019) (“It has long been “settled law” that retaliatory prosecution requires proving “the want of probable cause”). The same probable cause analysis applies to a section 1983 malicious prosecution claim. See Awabdy, 368 F.3d at 1066 (“to prevail on a § ...