Case 3:13-cv RS Document 211 Filed 06/30/17 Page 1 of 8

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1 Case :-cv-0-rs Document Filed 0/0/ Page of 0 0 JENNIFER BROWN, et al., v. Plaintiffs, JON ALEXANDER, et al., Defendants. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA I. INTRODUCTION Case No. -cv-0-rs ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT Defendants Jon Alexander, Ed Fleshman, Dean Wilson, and the County of Del Norte move for summary judgment on the claims of plaintiffs Jennifer Brown and Jane Does and. For the reasons that follow, the motion is granted and judgment shall issue in favor of the defendants. II. BACKGROUND Since the dissolution of their marriage, Jennifer Brown and Daniel Crockett have engaged in a lengthy, scorched-earth battle for physical custody of their children, Jane Does and. The controversy has resulted in various lengthy proceedings, including this case, which relates primarily to Brown s arrest on suspicion of abducting the children. On Friday, January, 0, Brown began her scheduled weekend custody with the children in Del Norte County, California. Believing that Crockett had sexually assaulted the children, on Monday, January 0, Brown took them to Humboldt County for a sexual response assault team ( SART ) exam. That day, Brown s father, Barry Brown, apparently delivered two

2 Case :-cv-0-rs Document Filed 0/0/ Page of 0 0 letters to the Humboldt County District Attorney s office, explaining that Jennifer was withholding the children from Crockett s custody pursuant to California Penal Code.. On Wednesday, February, Detective Ed Fleshman called Jennifer Brown and asked her to return the children to Del Norte County. She apparently agreed to bring them to Del Norte County Child Protective Services by :00 p.m. that day, but never did. According to Fleshman, he unsuccessfully attempted to reach her again, and then dispatched a deputy to her home in Hiouchi (in Del Norte County), in an unsuccessful attempt to locate her. On Friday, February, Jennifer Brown failed to appear at a scheduled child custody hearing; her attorney appeared, and presented another. notice Brown had faxed him. After the hearing, Humboldt County District Attorney Jon Alexander obtained a protective custody warrant for the apprehension of Jennifer Brown s children, Jane Does and. From that day until February, Fleshman and Alexander aver they had no knowledge of Brown s whereabouts. On February, Fleshman concluded Brown was hiding the children. As a result, he prepared an affidavit for the issuance of an arrest warrant for child abduction. The affidavit stated the children s whereabouts were unknown, and expressed Fleshman s belief Brown was actively hiding them. It did not indicate that Brown had apparently been in Humboldt County a week before, or that she had filed purported. notices with the Del Norte County District Attorney s Office. After Alexander reviewed the affidavit, it was submitted to a judge who then signed the arrest warrant. That same day, Fleshman issued a be on the lookout notification for Brown to other police agencies through the Critical Reach Search System. On March 0, Brown was located with the children at her home in Hiouchi, whereupon she was arrested. As a result of the arrest and the actions leading up to it, Brown filed this action on April, 0. Significant motions practice has ensued, resulting in the dismissal of many parties and disposal of many claims. The remaining claims, on which defendants now seek summary judgement are: a claim for violation of Brown s Fourth Amendment right against unreasonable search and seizure against Alexander, Fleshman, and Del Norte County Sheriff Dean Wilson; civil conspiracy, defamation, and abuse of process claims by Brown against Fleshman and CASE NO. -cv-0-rs

3 Case :-cv-0-rs Document Filed 0/0/ Page of 0 0 Wilson; intentional infliction of emotional distress and negligence claims by Brown and Does and against Fleshman and Wilson; a false imprisonment and false arrest claim by Brown against Alexander, Fleshman, and Wilson; and a vicarious liability claim by Brown and Does and against the County of Del Norte. On December, 0, Brown s attorney Patricia Joan Barry filed an emergency motion to withdraw from the case because the State Bar had ordered her inactive as a result of disciplinary proceedings. The following day, the motion was granted. That same day, defendants filed this motion for summary judgment. On February, 0, Brown filed a declaration indicating Barry had failed to turn over the case file to her, and that Barry had gone out of communication. Brown expressed concern that she would not be able to secure new counsel without retaking possession of her case file from Barry, and sought an extension of case deadlines. On February, the Court ordered Barry to return the case file to Brown, and to submit to the Court by March a declaration attesting to her compliance with the Court s order. The Court also extended various deadlines, and continued the hearing on defendants summary judgment motion from March to May. The order stated no further extensions would be granted, whether or not Brown was able to obtain counsel. On March, Barry submitted a declaration attesting to her compliance with the Court s order and averring she had mailed the remaining case file to Brown on March, having previously given to Brown the rest of the file. The May deadline for Brown to file opposition to defendants summary judgment motion passed without Brown making any filing. On May, Brown left a phone message with Court staff, claiming Barry had not returned her case file, and that she had been unable to secure counsel without the file. Brown also indicated she was unsure if she needed to appear for the summary judgment hearing on May. On May, a law clerk left a message on Brown s phone, explaining that her attendance was required at the next day s hearing. Brown failed to appear at the May hearing, but instead called into the Court at the time of the scheduled hearing. Noting Brown s failure to file opposition to the summary judgment motion, the Court granted her one final opportunity, giving her 0 days to file any opposition, and CASE NO. -cv-0-rs

4 Case :-cv-0-rs Document Filed 0/0/ Page of 0 0 informing her that, if she failed to do so, judgment for defendants could result. The 0-day deadline gave Brown until Monday, June, to file opposition to defendants motion. Brown has not done so. III. LEGAL STANDARD Summary judgment is appropriate when 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. (a). The party seeking summary judgment bears the initial responsibility of identifying an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, U.S., (). If the moving party satisfies this initial burden, the non-moving party must present specific facts showing there is a genuine issue for trial. Fed. R. Civ. P. (e); Celotex, U.S. at. Only disputes over facts that might affect the outcome of the suit under governing law are material. Anderson v. Liberty Lobby, Inc., U.S., (). A genuine issue exists if the non-moving party presents evidence from which a reasonable fact-finder, viewing the evidence in the light most favorable to that party, could resolve the material issue in his or her favor. Id. at -. IV. DISCUSSION A. Claim Brown advances a claim for violation of her Fourth Amendment right against unreasonable search and seizure as a result of her March 0, 0, arrest. Brown claims the warrant pursuant to which she was arrested was invalid because the affidavit prepared in support of it falsely claimed her whereabouts were unknown and did not state that she was purporting to withhold her children pursuant to.. Under Franks v. Delaware, U.S. (), Brown must show () the affidavit contains intentionally or recklessly false statements, and () the affidavit purged of its falsities would not be sufficient to support a finding of probable cause. United States v. Lefkowitz, F.d, (th Cir. 0) (citing Franks, U.S. ()); see also KRL v. Moore, F.d 0, (th Cir. 00) (recognizing intentional or reckless material omissions may support a Franks claim). The court determines the materiality of alleged false statements or omissions. KRL, F.d at. Omissions or misstatements CASE NO. -cv-0-rs

5 Case :-cv-0-rs Document Filed 0/0/ Page of 0 0 resulting from negligence or good faith mistakes will not invalidate an affidavit which on its face establishes probable cause. United States v. Smith, F.d, 0 (th Cir. ). At the outset, Wilson states in a sworn affidavit that he had no involvement in preparing the warrant affidavit or in Brown s arrest. Brown identifies no evidence that would call his statement into question. Accordingly, Wilson is entitled to summary judgment on Brown s claim. As to the warrant affidavit s assertion Brown and the children s whereabouts were unknown, the only evidence of falsity Brown has introduced is that Fleshman would have known she was in Humboldt County with the children a week before he prepared the affidavit. Alexander and Fleshman both offer sworn declarations that, from February to February, they had no information on Jennifer Brown s specific whereabouts. Brown s evidence that, days earlier, Fleshman was apparently aware she was in Humboldt County does not directly refute their statements such that a reasonable fact finder could determine the whereabouts-unknown statement in the affidavit was intentionally or recklessly false. Indeed, a reasonable fact-finder would be hard-pressed to find the whereabouts-unknown statement false at all, given that the information available to Alexander and Fleshman was days old, and did not precisely identify Brown s location such that she or the children could be located. Moreover, given the extremely limited evidence of falsehood Brown has presented, it cannot be said the whereabouts-unknown statement would be material to a probable cause determination in any event. While a false statement that a suspect s whereabouts are unknown will be material in many circumstances, the specific falsehood for which Brown has produced evidence would not vitiate probable cause for the issuance of her arrest warrant. Had the warrant affidavit included information that, one week before, Brown had apparently been somewhere in Humboldt County, the affidavit still would have provided probable cause for an arrest warrant to issue because that county covers more than 00 square miles and is home to more than 0,000 people. Although Brown s whereabouts may not have been entirely unknown (which is true to a degree for virtually every criminal suspect), her precise whereabouts were sufficiently unknown that authorities could not locate her and could reasonably infer she was concealing her children. CASE NO. -cv-0-rs

6 Case :-cv-0-rs Document Filed 0/0/ Page of 0 0 Finally, whether or not a proper. notice could in some circumstances vitiate probable cause for the issuance of an arrest warrant, the specific evidence here precludes a conclusion that the affidavit s failure to mention the notices was a material omission supporting a Franks claim. This is because the notices were facially defective; they did not indicate the current address at which the children were being kept, which. explicitly requires. Cal. Penal Code.(c)(). Accordingly, Alexander and Fleshman are entitled to summary judgment on Brown s claim. B. State Law Claims. California Tort Claims Act As an initial matter, defendants argue they are entitled to judgment on plaintiffs civil conspiracy, abuse of process, and negligence claims, and Does and s intentional infliction of emotional distress claims, because those claims were not timely presented in the tort claim plaintiffs delivered to the Del Norte County Board of Supervisors on July, 0. As part of the California Tort Claims Act, Government Code section 00 et seq. establishes certain conditions precedent to the filing of a lawsuit against a public entity. As relevant here, a plaintiff must timely file a claim for money or damages with the public entity.... The failure to do so bars the plaintiff from bringing suit against that entity. State v. Superior Court (Bodde), Cal. th, (00) (citing Cal. Gov t Code.,.). A claim relating to any... cause of action [other than for personal injury or death] shall be presented... not later than one year after the accrual of the cause of action. Cal. Gov t Code.. Defendants are correct. The July, 0, tort claim did not present plaintiffs civil conspiracy, abuse of process, or negligence claims, and Does and s intentional infliction of emotional distress claims. Moreover, plaintiffs do not argue any exception to the Tort Claims Act excuses their failure, do not argue a Tort Claim could still be timely filed for those claims, and do not identify any evidence that would support either argument. Accordingly, defendants are entitled to summary judgment on those claims. CASE NO. -cv-0-rs

7 Case :-cv-0-rs Document Filed 0/0/ Page of 0 0. Immunity Under. The individual defendants further argue they are immune from plaintiffs state-law claims under California Government Code., which provides: A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause. California courts construe section. broadly in furtherance of its purpose to protect public employees in the performance of their prosecutorial duties from the threat of harassment through civil suits. Gillan v. City of San Marino, Cal. App. th 0, 0 (00) (citation omitted). Government Code section. immunizes not only the act of filing or prosecuting a judicial or administrative complaint, but also extends to actions taken in preparation for such formal proceedings, including investigations and actions undertaken in the course of an investigation. Id. (citations omitted). Section. immunizes police officers, see id. at 0-, 00, but provides no immunity from liability for false arrest or false imprisonment, id. at 0. It does, however, provide immunity from claims of defamation and intentional infliction of emotional distress. Id. Jennifer Brown s defamation and intentional infliction of emotional distress claims pertain to the actions of Fleshman and Wilson (both public employees) while they investigated her suspected criminal activity. Brown admits in her second amended complaint that Fleshman and Wilson were acting within the scope of their employment. See also Garcia v. City of Merced, F. Supp. d, (E.D. Cal. 00) ( Obtaining an arrest warrant is an activity conducted in the process of an investigation and is routinely within the scope of a prosecutor s and officer s employment. ). Based on Brown s allegations and all available evidence, the immunity clearly applies to Fleshman and Wilson for Brown s defamation and intentional infliction of emotional distress claims. Brown advances no arguments and identifies no evidence that would undermine this conclusion. Accordingly, Fleshman and Wilson are entitled to summary judgment on Brown s defamation and intentional infliction of emotional distress claims. CASE NO. -cv-0-rs

8 Case :-cv-0-rs Document Filed 0/0/ Page of 0 0. False Imprisonment/False Arrest [F]alse arrest and false imprisonment are not separate torts. False arrest is but one way of committing a false imprisonment, and they are distinguishable only in terminology. Collins v. City & Cty. of San Francisco, 0 Cal. App. d, (). False imprisonment is the unlawful arrest or detention of a person without warrant, or by an illegal warrant, or a warrant illegally executed. Donati v. Righetti, Cal. App., (0). Brown, however, has not raised a genuine issue of material fact relating to the validity of the warrant pursuant to which she was arrested. See supra Part IV.A. She has raised no evidence undermining the conclusion that her arrest warrant was supported by probable cause. Id. Accordingly, Alexander, Fleshman, and Wilson are entitled to summary judgment on her false arrest/false imprisonment claim.. Vicarious Liability Because defendants are entitled to summary judgment on plaintiffs other claims, the County of Del Norte is necessarily entitled to summary judgment on plaintiffs vicarious liability claim there are no remaining claims upon which it could be held vicariously liable. V. CONCLUSION For the foregoing reasons, the motion for summary judgment is granted in favor of defendants Jon Alexander, Ed Fleshman, Dean Wilson, and the County of Del Norte. Judgment shall issue herewith. IT IS SO ORDERED. Dated: June 0, 0 RICHARD SEEBORG United States District Judge CASE NO. -cv-0-rs