Opinion
NO. C00-1247 TEH
November 17, 2003
ORDER GRANTING SUMMARY JUDGMENT
This action arises out of the arrest and prosecution of plaintiff Emilio Guerrero on charges of sexually molesting a minor. After the charges were dropped on the first day of trial, plaintiff brought this action alleging that his arrest and prosecution violated his federal constitutional rights. Plaintiff also appended supplemental state law claims. Among other things, plaintiff claims that (1) his arrest violated the Fourth Amendment because materially false statements and/or omissions in the warrant application precluded a finding of probable cause to arrest, and (2) his arrest and prosecution violated his Fourteenth Amendment due process rights because defendants knew or should have known that plaintiff was in fact innocent. This matter now comes before the Court on defendants' Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56. Having carefully considered the parties' written and oral arguments, and the entire record herein, the Court concludes that defendants' motion should be granted for the reasons set forth below.
In his opposition papers, plaintiff purports to also bring a cross-motion for summary adjudication of his Fourth Amendment claim. See Pl's. Opp. at 1, 16. The Court agrees that the motion is not properly before the Court for the reasons set forth in defendants' Motion to Strike Plaintiffs Reply Re: Cross-Motion for Summary Adjudication. In any event, however, the matter is moot given the Court's grant of summary judgment in defendants' favor.
I. BACKGROUND
On March 16 and 18, 1996, Jimeno Rodriguez contacted the San Francisco Police Department ("SFPD") to allege that the plaintiff, Emilio Guerrero, had molested his six-year old daughter, Lluvia, who resides primarily with her mother, Mr. Rodriguez' ex-wife. Mr. Guerrero is variously described as either a "friend" or "boyfriend" of Lluvia's mother. To support his claim, Rodriguez provided police with a written report from Elaine Oyler, who had been providing periodic counseling sessions to Lluvia since October 1995 at her father's request. Oyler states in the report that she and Lluvia had developed a "trust relationship" appropriate to a child her age. Reid Decl., Exh. 4 to Exh. E (Tittel Dep.) at 24. Oyler's report further states that during a session with Lluvia on March 14, 1996, Lluvia brought up the subject of people making "Not O.K. touches," id. at 24, and told Oyler that "[s]he did not like Emilio (Guerrero) touching her." Id. at 25. She then told Oyler that Emilio Guerrero had touched her on her bottom and that it was an "uckey" touch, and that he also touched her chest area when she was in her underwear or pajamas at home, and her mother was in the kitchen. Id. at 25. She also complained that he kissed her hard on the cheeks and squeezed her tightly in a hug. Oyler concluded that the above had been going on for about six months. Id. at 26. Lluvia later indicated that Rodriguez had touched her thighs but was "not clear as to him touching the vaginal area." Id. at 27.
Rodriguez had lodged a similar complaint in 1993. The matter was dropped when the police officer could not get in contact with Rodriguez. Reid Decl., Exh. F (Donsbach Dep.) at 46, and Exh. 1 thereto. The CPS referral report also mentioned the "questionable motives" of the reporter (Rodriguez) and questioned the child's ability to communicate the complained of molestation. Reid Decl., Exh. 2 to Exh F. (Tittel Dep.)
The report is signed "Elaine J. Oyler M.Ed., M.A., IMF #26074." There does not appear to be any dispute that, at the time of the counseling sessions, Ms. Oyler was a licensed intern in family counseling at the Center for Child and Family Development at the University of San Francisco.
Oyler also independently filed a report with Child Protective Services regarding suspicion of sexual abuse. Ackiron Decl., Exh. 2 to Exh. D (Slaughter Dep.) at 44.
The SFPD assigned the case to Stephen Tittel, an Inspector assigned to the juvenile division. Tittel interviewed Lluvia on tape in a room at her school. According to the transcript of the interview, Lluvia told Tittel, inter alia, that plaintiff had touched her in "my not good parts" when he came to her house and when he picked her up from school and drove her home, and that this had been going on for about a year. Reid Decl., Exh. 16 to Exh E (Tittel Dep.) at 8-9, 13. She said he touched her on (1) her chest under her clothes, and (2) on her private parts (indicating her vagina) but only over her underwear. Id. at 11-13, 18. However, in response to further questioning, she later said he had touched her under her underpants, and that he had also touched her on the inside of her private parts with his hand. Id. at 16-19. Tittel did not ask her how many times he had touched her on the inside of her private parts, and she did not volunteer this information. Id. She also said that she wrote something down about the events on a piece of paper at her father's house. Id.
Tittel also interviewed plaintiff, who had voluntarily agreed to an interview without a lawyer. During the interview, plaintiff also volunteered to submit to a psychological evaluation, and to take "any other tests that [Tittel] might have for [him]." Reid Decl., Exh. 8 to Exh. E (Tittel Dep.) at 383, 390, 427, 429. According to the transcript of the interview, Guerrero stated, through a translator, that Lluvia is a "very pretty girl and sometimes when we show affection we touch each other" which he emphasized is common in the Latin culture. Id. at 398. He confirmed that he would pick her up from school but he denied any wrongdoing, said Lluvia was always happy to see him, and repeatedly emphasized that her father was a psychopath who had put Lluvia up to the allegations. He also stated that Rodriguez had a history of abusing Lluvia's mother and that they were engaged in a custody dispute in family court. Id. at 389, 400-404, 410, 414-17, 422, 424. Tittel also interviewed Lluvia's mother at her home. He did not interview Oyler or Lluvia's father, although he was aware that the father and mother were involved in a custody dispute.
The case was also referred to Child Protective Services ("CPS"), and Philip Zaragosa, a social worker, was assigned to the case. As the specifics of Mr. Zaragosa's report regarding Lluvia are subject to a protective order, it suffices to say that there were discrepancies between his report and the results of Tittel's interview with Lluvia. Given the discrepancies, Zaragosa referred Lluvia for a comprehensive interview at the Child and Adolescent Sexual Abuse Resource Center. ("CASARC").
The CASARC interview was conducted by Mary Slaughter, a registered nurse trained to conduct forensic interviews of children regarding sexual abuse, and observed through a one-way window by Zaragosa. Another CARSAC nurse also attended. The interview was not taped. According to Slaughter's notes from the interview, Lluvia described Guerrero as her mother's boyfriend and spoke of not liking him because "he always touches me in my private parts." Ackiron Decl., Exh. 2 to Exh. D (Slaughter Dep.) at 46. She indicated on a drawing that her private parts were in her vaginal area, and that he touches these parts with his hand, and that her clothing is sometimes on and sometimes off. When asked if this was the truth, she replied "yes" in a "loud clear voice." Id. at 46. She could not, however, recall specific times when he touched her, and described it occurring at home when her mother was on the phone or in the kitchen. Using an anatomically correct doll, Lluvia identified plaintiff as making a pinching motion on the "vaginal area" of the doll, but did not indicate any vaginal penetration. She was also asked if her father had told her to say that Emilio had touched her and she replied, "no, it really happened." Id. at 48. Zaragosa's notes from the CARSARC interview are similar to Slaughter's notes. Reid Decl., Exh. 2 to Exh. B (Zaragoza Dep.) at 68.
The CASARC team then met with Lluvia's mother who asserted that plaintiff did not mean Lluvia any harm and that she believed that Lluvia's father had convinced Lluvia that she was being molested. Id. The mother, however, agreed to abide by a court order of no contact between Lluvia and plaintiff. In light of this representation, Zaragosa subsequently closed his file on the case. Ackiron Decl., Exh. A (Zaragoza Dep.) at 74.
After receiving Slaughter's notes from her interview, Tittel met with an Assistant District Attorney, Nancy Stretch, to ask that a warrant be issued for Guerrero's arrest under Calif. Penal Code § .288.5. According to Tittel, Stretch asked for additional information regarding the number of incidents of actual penetration. Reid Decl., Exh. E (Tittel Dep.) at 61. According to Stretch, she didn't ask for "additional" information, she just asked that Tittel write up a supplemental statement incorporating Lluvia's interview statements to him since Stretch suspected that the judge would not take the time to listen to the tape of Tittel's interview of Lluvia. Reid Decl., Exh. H (Stretch Dep.) at 38; Choi Decl., Exh B at 70-71. Tittel subsequently prepared a statement that summarized his interview with Lluvia at her school by stating as follows:
In my interview with Lluvia she told me that Emilio Guerrero used to visit her mother often, sometimes sleeping over. Lluvia said that Emilio would often touch her on the "not good parts.' Lluvia said that these incidents occurred at her mothers home or in Emilion Guerrero's car when he would pick her up at school. Lluvia said that these incidents often included Emilio Guerrero digitally penetrating her vagina. Lluvia said that Emilio Guerrero began picking here up at school soon after her 5th birthday . . . and only stopped picking her [up] (and the attendant touching and penetration incidents) in February 1996, a period of just over a year in which more than 3 incidents of significant abuse/penetration occurred.
Reid Decl., Exh. 12 to Exh. E (Tittel Dep.) at 23, 62. Tittel's statement also stated that he had "attempted to contact Guerrero with negative results." Id.
In June 1996, Tittel sought an arrest warrant for plaintiff for violation of Calif. Penal Code § 288.5. To obtain a conviction under this statute, a prosecutor must prove either (1) three or more instances of "substantial sexual conduct," which requires penetration of the vagina (or other acts not relevant here) or (2) three or more acts of "lewd or lascivious conduct" which can be "any touching of an underage child accomplished with the intent of arousing the sexual desires of either the perpetrator or the child." People v. Martinez, 11 Cal. 4th 434, 452 (1995). The application stated, in part, that Guererro, having had recurring access to Lluvia for not less than three months, "did engage in three or more acts of substantial sexual conduct, and lewd and lascivious conduct with a child under the age of 14 years" in violation of Calif. Penal Code § 288.5. Def s Req. For Jud. Notice, Exh. B (emphasis added). The warrant application was supported by Tittel's statement (quoted in part above), the police incident reports, and the written report from Oyler. Reid Decl., Exh. P, and Exh. 12 to Exh. E (Tittel Dep.); Def s Req. For Jud. Notice, Exh. B.
The text of 288.5 is as follows: (a) Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066 or three or more acts of lewd or lascivious conduct under Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years.
A preliminary hearing was held on July 1, 1997, and plaintiff was held over for trial. Ackiron Decl., Exh. E at 3-4. On September 28, 1998, the first day of trial, the prosecutor dismissed the case against plaintiff after Lluvia testified that plaintiff did not "touch her private parts," and that she had previously told Oyler and Tittel that he had so her dad would not get mad at her. Reid Decl., Exh. Q at 12-13; Def.'s Req. For Judicial Notice, Exh. E.
The Court does not consider Lluvia's statements at trial for their truth but only to explain the action of the prosecutor in dismissing the case. Accordingly, defendants' objection to this evidence on hearsay grounds is misplaced.
Plaintiff subsequently sued Tittel, the City and County of San Francisco, and other city employees involved in this matter, alleging that the investigation and prosecution of the sexual abuse claims against him violated his federal civil rights as well as various state laws. Certain claims were dismissed for failure to state a claim for relief. Defendants now move for summary judgment on the remaining claims. In his opposition, plaintiff concedes that judgment should be granted in defendants favor with respect to the remaining claims against Zaragosa (CPS worker) and Mary Slaughter (CARSAC nurse). Accordingly, the only remaining defendants are Tittel and the City and County of San Francisco. The only remaining issues are the following:
1. Whether Tittel violated plaintiffs 4th Amendment rights because he deliberately included materially false statements in the warrant application without which there was no probable cause to arrest plaintiff,
2. Whether Tittel violated plaintiffs 14th Amendment due process rights because he knew or should have known that Guerrero was innocent and nonetheless pursued his arrest and prosecution,
3. Whether plaintiff was falsely arrested under state law, and
4. Whether the City and County of San Francisco are liable under Monell.
Each of these issues is discussed in turn below.
II. SUMMARY JUDGMENT STANDARD
Summary judgement is appropriate when there is no genuine dispute of material fact and the moving party is entitled to judgement as a matter of law. Jung v. FMC Corp., 755 F.2d 708, 710 (9th Cir. 1985); Fed.R.Civ.P. 56(c). A dispute as to a material fact is "genuine" if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505 (1976). "If the evidence is merely colorable or is not significantly probative, summary judgment may be granted." Id. at 2511 (citations omitted). In ruling on a summary judgement motion, a court must view all facts and draw all inferences in the light most favorable to the nonmoving party. Poller v. CBS, Inc., 368 U.S. 464, 82 S.Ct. 486 (1962).
A party seeking summary judgement bears the initial burden of informing the court of the basis for its motion, and identifying those portions of the pleadings and discovery responses which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 108 S.Ct. 1028 (1986). Where the moving party will have the burden of proof on an issue at trial, she must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. Whereas, the moving party can prevail on a motion for summary judgement on an issue that her opponent will have the burden of proof for at trial by merely "pointing out to the District Court — that there is an absence of evidence to support the nonmoving party's case" Id. If the moving party meets its initial burden, the opposing party must then "set forth specific facts showing that there is a genuine issue for trial.11 to defeat the motion. Anderson, supra, at 250; Fed.R.Civ.P. 56(e).
III. DISCUSSION
A. FOURTH AMENDMENT — PROBABLE CAUSE TO ARREST CLAIM
Plaintiff claims his arrest violated the Fourth Amendment because he was arrested without probable cause. In particular, plaintiff argues that there was insufficient probable cause to support the issuance of the arrest warrant because Tittel deliberately included materially false statements in his warrant affidavit and omitted other exculpatory evidence and information. Pl's. Opp. at 16.
As an initial point, defendants argue that plaintiff is collaterally estopped from pursuing this claim because plaintiff was held over for trial after the preliminary hearing in state court. As a general rule, a decision to hold the defendant over for trial after a preliminary hearing will collaterally estop the defendant from arguing there was no probable cause to support the arrest warrant. McCutcheon v. City of Montclair, 73 Cal.App.4th 1138, 1147 (1999). This is because the issue of whether there is probable cause to arrest is essentially the same issue litigated at the preliminary hearing — i.e. whether a "man of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused." Id.; People v. Garcia, 166 Cal.App.3d 1056, 1065 (1985). An exception to this rule arises, however, when (1) the plaintiff alleges that the arresting officer lied or fabricated evidence supporting probable cause and (2) this issue is not raised at the preliminary hearing. Id. This is the case here. First, plaintiff alleges that Tittel falsely testified at the preliminary hearing and falsely stated in his affidavit supporting the arrest warrant that Lluvia had told him that plaintiff had vaginally penetrated Lluvia "often" and "more than 3" times. See e.g. Def s Req. for Jud. Notice, Exh. C at 9. Second, having reviewed the preliminary hearing transcript, it is clear that plaintiffs criminal defense lawyer never argued or asserted that Tittel's testimony on this point was false. Rather, his lawyer only asked some minimal questions about the frequency of the vaginal penetration and never challenged the answers. See e.g. Def's Req. for Jud. Notice, Exh. C at 16. Accordingly, defendants' collateral estoppel argument is not persuasive.
Turning back to the merits, a police officer generally has qualified immunity from a claim that he lacked probable cause to arrest, absent a showing that a reasonably well-trained officer in his position would have known that his warrant affidavit failed to establish probable cause. Malley v. Briggs, 475 U.S. 335 (1986). Where, as here, the officer is accused of deliberately falsifying the affidavit, and claims qualified immunity, the Ninth Circuit has tailored this inquiry. Specifically, in order to survive summary judgment, plaintiff must:
(1) make a substantial showing that the warrant application contained a deliberate falsehood (or omission), and,
(2) establish the materiality of the falsehood (or omission) by showing that if the offending material is excised (and/or the omission is included), the information provided to the Magistrate would be insufficient to establish probable cause.Lombardi v. City of El Cajon, 117 F.3d 1117, 1124-26 (9th Cir. 1997); Hervey v. Estes, 65 F.3d 784, 789 (9th Cir. 1995); see also Liston v. County of Riverside, 120 F.3d 965, 972-73 (9th Cir 1997).
Whether the statements were deliberately false is ultimately a factual issue for the jury, but the plaintiff must at least make a "substantial showing"on this issue to survive summary judgment. See Lombardi, 111 F.3d at 1126, n. 6; Hervey, 65 F.3d at 790-91.
Whether the alleged false statements/omissions are material is a question of law for the Court to decide. Hervey, 65 F.3d at 789. If the plaintiff can satisfy both of the above requirements, then the officer is not entitled to qualified immunity and the claim proceeds to trial for the jury to determine whether the officer deliberately or recklessly included false statements (or omitted information) in the affidavit. Id. at 791. Each of the above two requirements is addressed in turn.
(1) Substantial showing of deliberate falsehood and omissions
(a) falsehoods
Plaintiff contends that the following three statements in the arrest warrant affidavit were deliberately false:
(1)"Lluvia said" that the incidents of not good touching "often included Emilio Guerrero digitally penetrating her vagina."
(2)"Lluvia said" that "more than 3 incidents of significant abuse/penetration occurred."
(3)He (Tittel) had "attempted to contact Emilio Guerrero with negative results."
The Court agrees that plaintiff has made a substantial showing that these three statements are false and defendants have not argued otherwise. With respect to the first two items (which are essentially the same point), plaintiff has made a substantial showing that they are false because they purport to represent what Lluvia told Tittel and Lluvia never actually told Tittel that the digital penetration occurred "often." While it is certainly possible that Tittel in good faith inferred from the totality of the interview that the digital penetration occurred "often" or "more than 3 times," it was false to represent that Lluvia had said this. As noted above, Tittel did not ask Lluvia how often the digital penetration occurred and she did not volunteer this information. Thus, Tittel could have only represented that Lluvia had disclosed one instance of penetration. Accordingly, the Court concludes that plaintiff has made at least a "substantial showing" that these first two statements were deliberately false. The third item is patently false since Tittel in fact contacted Guerrero and interviewed him at length. Plaintiff has therefore also made a substantial showing that this was a deliberately false statement.
(b) omissions
Plaintiff also argues that Tittel deliberately omitted various exculpatory facts and evidence from the arrest warrant application. In particular, plaintiff, emphasizes that the following was omitted:
1. The fact that Guerrero had voluntarily submitted to a taped interview without counsel and had offered to take "any tests."
2. The notes from the CARS AC interview by Mary Slaughter which indicate that Lluvia did not mention any digital penetration, and only mentioned touching in the home, not in the car.
3. The fact that the father, who reported the molestation (along with Ms. Oyler), was embroiled in a custody dispute with the mother and had made a prior report to the police against Guerrero.
Defendants do not dispute that these facts were omitted from the warrant application.
The Court notes that for the first time at oral argument defendants asserted that the police reports referenced in the warrant application included information that the father reported the molestation and that the parents were in a custody dispute — a point which plaintiffs counsel did not refute. As discussed below, however, the Court would reach the same result even if these facts had been omitted.
2. Materiality of the falsehoods and/or omissions
To determine the issue of materiality, courts must ask whether, if the omitted material was included and the false statements excised, there still would have been probable cause to arrest. Probable cause exists when the police have knowledge of facts and circumstances based on reasonably trustworthy information that would warrant a belief by a reasonably prudent person that the person arrested has committed a criminal offense. Franklin v. Cox, 312 F.3d 423, 438 (9th Cir. 2002). "The evidence need support `only the probability, and not a prima facie showing, of criminal activity.'" Id. It also "need not be admissible, but only legally sufficient and reliable." Id.
Making the adjustments to excise the false statements and include the omitted information, a magistrate would have had before him or her:
(1) the report from Oyler,
(2) Tittel's statement with the above statements excised.
(3) The initial police reports
(4) The fact that the notes from the CARSAC interview did not indicate any acts of penetration
(5) The fact that Guerrero had voluntarily submitted to a taped interview without counsel and had offered to take "any tests."
(6) The fact that the father was embroiled in a custody dispute with the mother and had made a prior report to the police against Guerrero.
Plaintiff argues that a magistrate would not have found probable cause with the above "package" of information. In particular, plaintiff emphasizes that the case against Guerrero was based entirely on the "substantial sexual conduct"/penetration prong of Penal Code § 288.5, and that without the false statements regarding digital penetration, and with the inclusion of the fact that the CARSAC interview did not indicate any penetration, there was no evidence to support a substantial sexual conduct/penetration charge.
As noted above, Penal Code § 288.5 is violated upon a showing that there were, over the necessary period of time, either (1) three or more instances of "substantial sexual conduct," which requires penetration of the vagina (or other acts not relevant here) or (2) three or more acts of "lewd or lascivious conduct" which can be any touching of an underage child accomplished with the intent of arousing the sexual desires of either the perpetrator or the child.
It is clearly true that a "corrected" warrant application would fail to support probable cause to arrest under the "substantial sexual conduct"/penetration portion of § 288.5. It is also evident that Tittel's affidavit emphasized the substantial abuse/penetration charge, presumably because it involved the most serious type of conduct. What plaintiff fails to grapple with, however, is that even if the "substantial sexual conduct"/penetration charge fails, the complaint sought an arrest warrant under both the "substantial sexual conduct"/penetration and the lewd and lascivious provisions of § 288.5. Def.'s Req. For Judicial Notice, Exh. B (stating that plaintiff "did engage in three or more acts of substantial sexual conduct, and lewd and lascivious conduct. . . .") (emphasis added).
As explained above, this latter portion of the statute does not require any penetration. Rather, it is violated by "any touching of an underage child accomplished with the intent of arousing the sexual desires of either the perpetrator or the child." Martinez, 11 Cal.4th at 452. The touching can involve "any part" of a child's body as long as it is done with the requisite intent, which can be inferred from the circumstances, including the location of the touching and the age of the child. Id. at 444-49; People v. Dontanville, 10 Cal.App.3d 783, 795-96 (1970); People v. Higgins, Cal.App.4th 294, 300 (1992) (Legislature enacted Penal Code § 288.5 to address situations in which a young victim gives "generic" testimony of sexual abuse but cannot provide specifics); Reid Decl., Exh. H (Stretch Dep.) at 47.
The magistrate would still have had the report from Oyler who clearly found that Lluvia had credibly volunteered to her that plaintiff had engaged in "not O.K." or "uckey" touching of her breast area and buttocks when she was in her underwear or pajamas for a period of roughly six months. This was corroborated by Tittel's statement that Lluvia had also told him that Emilio would "often" touch her on the "not good parts" during the same time period, as well as a more limited statement of one instance of digital penetration. The Court is not convinced that a magistrate would have declined to find probable cause to arrest for lewd and lascivious conduct given these consistent statements of molestation to a counselor and a police officer. Cf. Hervey, 65 F.3d at 1126 (once misstatements were excised all that remained was uncorroborated, unreliable informant information entitled to no weight). While Tittel did not expressly identify the "not good parts" as including her chest and buttocks, given the broad scope of a lewd and lascivious charge, this fact does not appear fatal to a finding of probable cause. Moreover, if as plaintiff argues, the CARSAC interview notes should have been included to show a lack of penetration, these same notes also provide additional, clear support for the charge of lewd and lascivious conduct. Finally, as the cases make clear, the issue of improper intent can be inferred from the circumstances, including the age of the child. See e.g. Dontanville, 10 Cal.App.3d at 795-96.
Nor is the Court convinced that Tittel's false statement that he had "attempted to contact Guerrero with negative results" is material. Such a statement could simply be construed to mean that Tittel had been unable to reach Guerrero. Even if it was construed to imply some degree of non-cooperation, the statement is so vague that it is unlikely to have factored into the Magistrate's decision in any significant way. Similarly, the addition of a statement that Guerrero had cooperated and was willing to take "any tests" would not likely sway a Magistrate Judge to decline an arrest warrant. In short, the fact of Guerrero's cooperation or non-cooperation would at best appear to be a minor factor in determining whether there was probable cause.
Similarly, including the fact that the parents were embroiled in a custody dispute would not likely undermine a finding of probable cause, particularly given that the initial complaint was supported by the report of Lluvia's counselor, who independently determined that CPS should be contacted. Reid Decl., Exh. 4 to Ex. E (Tittel Dep.) at 27. Finally, the fact that Rodriguez had made a prior report regarding Guerrero three years earlier could be interpreted as either exculpatory or inculpatory, depending on how it was viewed by the Magistrate.
In sum, correcting for the asserted false statements and omissions, the Court is not persuaded that a magistrate would plainly not have found probable cause to arrest, if the omitted information had been added and the false statements redacted, given Lluvia's consistent statements of unwanted and improper touching to a counselor and police officer. See Lombardi, 117 F.3d at 1126 ("When it is not plain that a neutral magistrate would not have issued the warrant, the shield of qualified immunity should not be lost . . ."). Accordingly, the Court concludes that the false statements and omissions at issue were not "material," as a matter of law. Consequently, Tittel is entitled to qualified immunity with respect to plaintiffs Fourth Amendment claim.
B. FOURTEENTH AMENDMENT — DUE PROCESS CLAIM
In Devereaux v. Abbey, 263 F.3d 1070 (9th Cir. 2001) (en banc), the Ninth Circuit made it clear that "there is no constitutional due process right to have child witnesses in a child sexual abuse investigation interviewed in a particular manner or to have the investigation carried out in a particular way. Interviewers — must be given some latitude in determining when to credit witnesses' denials and when to discount them. — Consequently, mere allegations that defendants used interviewing techniques that were in some sense improper, or that violate state regulations, without more, cannot serve as the basis for a claim under § 1983. Id. at 1075. In short, there is no § 1983 due process "improper-interview-techniques claim." Id. Devereaux also held, however, that there is a clearly established constitutional Fourteenth Amendment due process right not to be subjected to criminal charges on the basis of false evidence deliberately fabricated by the government. Id. at 1074. To prevail on a "deliberate-fabrication-of-evidence claim," a plaintiff must prove either: (1) that defendants continued their investigation although they knew or should have known that the accused was innocent, or (2) that defendants used investigation techniques that were so coercive and abusive that they knew or should have known that those techniques would yield false information. Id. at 1076. Here, plaintiff does not assert that Tittel's techniques were coercive or abusive. Rather, he only asserts that defendants violated his 14th Amendment due process rights under the first prong of the above test — i.e., he contends that Tittel continued to pursue the investigation and arrest of plaintiff even though he knew or should have known that plaintiff was innocent. See Pl's. Opp. at 22-23 (stating that plaintiff is no longer pursuing a claim based on the second prong).
Defendants again argue that plaintiff is collaterally estopped from pursuing this claim because the preliminary hearing already determined that a "man of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused." People v. Garcia, 166 Cal.App.3d 1056, 1065 (1985). However, the issue of whether Tittel knew or should have known Guerrero was innocent was never raised much less litigated at the preliminary hearing. Accordingly, the Court is not persuaded that collateral estoppel bars plaintiffs due process claim.
Where, as here, the defendant claims qualified immunity, the court must first determine, viewing the evidence favorably to the plaintiff, whether or not the officer's conduct violated plaintiffs constitutional rights. If a violation occurred, the Court must then determine whether the law was clearly established. Saucier v. Katz, 533 U.S. 194, 201-04 (2001). For the reasons explained below, the Court concludes that plaintiff can not show a violation of his due process rights. Accordingly, the Court does not reach the issue of whether the law was clearly established.
Plaintiff argues that the following evidence creates a triable issue of fact as to whether Tittel knew or should have known that Guerrero was in fact innocent when he sought the arrest warrant and/or testified against him at the preliminary hearing:
(1) the findings and conclusions from the CARS AC interview indicating that no penetration had occurred,
(2) Oyler's report indicating no penetration had occurred,
(3) the absence of strong, consistent statements by Lluvia, including that fact that she initially denied any penetration to Tittel and did not mention that unwanted touching had taken place in the car to interviewers other than Tittel,
(4) the absence of physical evidence and witnesses,
(5) Guerrero had no priors and volunteered to take any tests
(6) The decision of Inspector Donsbach not to pursue the case after interviewing Lluvia.
(7) Evidence of the custody dispute, and the fact that Tittel knew of a phenomenon called "Sexual Allegations Incident to Divorce."
(8) Rodriguez' prior complaint against Guerrero.
(9) the note found at Rodriguez' home, which should have informed Tittel that Rodriguez instigated the accusations against Guerrero.
As a threshold matter, the Court notes that the fact that the prosecution dismissed the charges against Guerrero does not, as Guerrero strongly implies, necessarily prove his innocence, or even prove that the prosecutor believed Guerrero was innocent. On the contrary, the prosecutor believed that Lluvia likely changed her testimony at trial under pressure from her mother who had an interest in protecting plaintiff. Under the circumstances, however, a prosecution was no longer viable. Ivancevich Decl., ¶¶ 13-16.
Even assuming arguendo, however, that Guerrero was in fact innocent, this Court is satisfied that no reasonable juror could find, based on the above, that Tittel knew or reasonably should have known that plaintiff was innocent at the time he sought the arrest warrant and/or testified against him at the preliminary hearing. First, as this Court has found above, there was probable cause to believe Guerrero had violated § 288.5, even if the warrant application was corrected to exclude false statements and include facts plaintiff asserts were improperly omitted., If there was probable cause to arrest under this corrected warrant scenario, then Tittel could not have reasonably known that Guerrero was innocent.
Second, given the report from Oyler, Lluvia's statements in her interview to Tittel, and the results of the CARS AC interview, all of which at a minium indicate lewd and lascivious conduct, no reasonable juror could find that Tittel knew or should have known that plaintiff was innocent of any violation of § 288.5 at the time of his arrest or at the preliminary hearing.
Third, no reasonable juror could find that Tittel knew, or should have known, that Guerrero was in fact innocent, based on any of the items specified above, either alone or in combination. With respect to the first three items listed above, the fact that Lluvia did not consistently disclose penetration in every interview can not reasonably be viewed as evidence that Tittel knew or should of known of Guerrero's innocence. First, as discussed above, penetration is not required for a violation of § 288.5. Second, Lluvia consistently spoke of clear molestation in every interview, even if some of the specifics and details varied. Third, given that Lluvia was only six and discussing the difficult issue of molestation, some degree of inconsistency between (and within) interviews would be expected. Similarly, the absence of physical evidence and witnesses would not reasonably cause Tittel to know that Guerrero was actually innocent. In a case of this nature, no physical evidence would be expected. Ivancevich Decl., ¶ 9. Nor would witnesses necessarily be expected. Id. at ¶ 8.
With respect to the fifth item, the fact that Guerrero had no priors and offered to take any tests would not reasonably put Tittel on notice that Guerrero was in fact innocent. With respect to the sixth item, plaintiff contends that Tittel should have known Guerrero was innocent because another inspector, Robert Donbasch, had also been assigned to the case and decided not to pursue it. The record indicates, however, that Donbasch had very little involvement in the case (he did not even remember it at his deposition and did not do anything to investigate it). Reid Decl., Exh. I (Donbasch Dep.) at 32, 46. In fact, the case had been mistakenly double-assigned to both Tittel and Donbasch because it came in both as an "on-call" case and as a "referral" through CPS. Id. at 20-21, 45. When the double-assignment was discovered Tittel was assigned to the case. Id.
The last three items all concern plaintiffs contention that Guerrero should have known that Lluvia was repeatedly lying at the behest of her father. Certainly, an argument can be made that Tittel should have interviewed Rodriguez as part of his investigation and explored this possibility, given the custody dispute. The fact, however, that the mother and father were embroiled in a custody dispute and had a contentious relationship, is not a basis upon which a reasonable juror could conclude that Tittel knew or should have known Guerrero was actually innocent during his investigation or at any point leading up to the trial. As defendants point out, at best plaintiff has shown is that Tittel could have done a more thorough in his investigation. This failure, however, is not sufficient to create a triable issue on plaintiffs "deliberate fabrication of evidence" claim.
A police officer who, in bad faith, fails to collect potential exculpatory evidence can be liable for a violation of due process rights. See Cunningham v. City of Wenatchee, 345 F.3d 802, 812 (9th Cir. 2003). Plaintiff has not made such a claim here.
Given all of the above, and viewing the evidence most favorably to plaintiff, the Court concludes that plaintiff has failed to establish a triable issue of fact that Tittel "continued [his] investigation although [he] knew or should have known that [Guerrero] was innocent." Devereaux, 263 F.2d at 1076. Accordingly, defendant is entitled to a grant of summary judgment on plaintiffs claim under the due process clause of the Fourteenth Amendment.
C. MONELL CLAIM AGAINST THE CITY AND COUNTY OF SAN FRANCISCO
A local government entity is subject to liability under 42 U.S.C. § 1983 upon proof that an unconstitutional government policy, custom or practice caused a constitutional violation. Monell v. Dep't. of Social Serv. of City of New York, 436 U.S. 658, 690, 694 (1978). Defendants are entitled to a summary judgment on this claim on two grounds. First, plaintiff has failed to set forth facts showing that he suffered a violation of a constitutional right. Second, even assuming arguendo the violation of a constitutional right, plaintiff completely fails to set forth evidence that would create a triable issue of fact as to the merits of his Monell claim. Indeed, plaintiff gives this claim scant attention in his opposition brief. See Pl's. Opp. at 24-25.
Plaintiff originally filed a 31-page oversized brief which the Court rejected and ordered be re-filed consistent with the Local Rules which permit 25-page briefs. The Court notes, however, that plaintiff s discussion of the Monell claim is identical in both the oversized brief and the revised brief. The brevity of plaintiff s discussion of the Monell claim can not, therefore, be attributed to lack of space.
D. STATE LAW CLAIM FOR FALSE ARREST
The parties both agree that this claim stands or falls with plaintiffs Fourth Amendment claim. Given the Court's conclusions above, defendants are entitled to judgment on this claim as well.
IV. CONCLUSION.
Accordingly, and for all of the reasons set forth above, this Court grants defendants' motion for a summary judgment in favor of all remaining defendants on all remaining claims in this action.
The Clerk is directed to close this case.