PITTS v. COUNTY OF KERN

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Court of Appeal, Fifth District, California.

Ricky Lynn PITTS et al., Plaintiffs and Appellants, v. COUNTY OF KERN et al., Defendants and Respondents.

Colleen Dill FORSYTHE et al., Plaintiffs and Appellants, v. COUNTY OF KERN et al., Defendants and Respondents.

No. F021678.

Decided: October 08, 1996

Stanley M. Becker, for Plaintiffs and Appellants. B.C. Barmann, Sr., County Counsel, Lynda M. Taylor, Deputy County Counsel, Robinson, Palmer & Stanton, Robinson, Palmer & Logan and William D. Palmer, Bakersfield, for Defendants and Respondents.

OPINION

We hold here that an elected district attorney is entitled to absolute immunity from liability for his alleged deficiencies in training and supervising employees of his office who perform prosecutorial functions.   The employees allegedly violated the plaintiffs' federal constitutional rights in interviewing witnesses for and presenting evidence in a criminal prosecution against plaintiffs which resulted in their convictions later reversed on appeal.   Because of that immunity, the trial court properly granted summary judgment in favor of the district attorney and his employees.

We further hold, however, that such immunity does not extend to the county represented by the district attorney, and triable issues of material fact remain as to whether the district attorney is a policymaker for the county and whether his alleged conduct constituted an official policy or custom subjecting the county to liability under federal civil rights statutes.   Because of those triable issues, we conclude the court below erred in granting the county's motion for summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In 1984, a school official at an elementary school in Bakersfield, California reported a six-year-old boy named Brian acting in a sexually explicit manner with a little girl on the playground.   When questioned about his conduct, Brian told authorities he had been molested by his noncustodial mother and her husband.   The ensuing investigation and trial in Kern County became known as the “Pitts case”;  in 1985, seven defendants were convicted of molesting Brian, his two brothers and three female cousins, ages four through nine.   The defendants were each sentenced to hundreds of years in prison.   In 1990 the convictions were overturned by this court which found the conduct of the prosecutors and the trial judge constituted “prosecutorial misconduct.”   (People v. Pitts (1990) 223 Cal.App.3d 606, 273 Cal.Rptr. 757.)   In 1991, the district attorney dismissed the case.   By 1994, all of the original child witnesses who testified recanted and claimed to have been forced to testify in the manner they had.

On March 31, 1992, Ricky Lynn Pitts and Marcella Pitts (plaintiffs) filed a third amended complaint (No. 215245) against the County of Kern, Kern County Department of Human Services, Child Protective Services, Edward Jagels, individually and as District Attorney of Kern County, Larry Kleier, individually and as Sheriff of Kern County, Kern County Sheriff's Department, Andrew Gindes, Bob Fields, Brad Darling, Carol Darling, Jack Rutledge, Michael Vendrasco, Jesse Sneed and others alleging numerous civil rights violations pursuant to 42 United States Code sections 1983 and 1988 stemming from the criminal case against them reversed on appeal.

On December 3, 1992, Colleen Dill Forsythe, Grace Dill, and Gina Miller (plaintiffs) filed a fourth amended complaint (No. 218820) against essentially the same parties.   These two cases were consolidated upon order of the trial court.

 The trial court entered summary judgment for defendants Michael Vendrasco (Vendrasco) and Carol Darling (Darling) as they had absolute prosecutorial immunity.   Defendant Edward Jagels (Jagels), an individual, was found not to be a proper defendant.   Defendant Jagels, district attorney, was found to have absolute immunity.   The defendant County of Kern (County) was found to have absolute immunity from liability stemming from any act for which its employees Vendrasco and Darling had absolute immunity.   Defendant County was also found to have absolute immunity from liability for the actions of Jagels as district attorney.1

After the summary judgment rulings, County successfully moved to sever claims and for separate trial as to the Monell (Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611) claims against County based on conduct of the remaining defendants—the fourth and seventh causes of action in the Pitts complaint and the second and fifth causes of action in the Dill complaint.

At trial, the court granted nonsuit for defendant Andrew Gindes (Gindes) and dismissed actions as to Sheriff Larry Kleier (Kleier) and Deputy Sheriff Jesse Sneed (Sneed).   The jury returned special verdicts finding that none of the remaining defendants—Jack Rutledge (Rutledge), Bob Fields (Fields), and Brad Darling (B. Darling)—violated any constitutional right of the plaintiffs.   The court thereafter granted a nonsuit motion and dismissed County as no “custom and policy” issue remained.

Plaintiffs attack various rulings of the court below, some relating to the summary judgment rulings and some relating to pretrial and trial.2

DISCUSSION

1. SUMMARY JUDGMENT ISSUES

County, Jagels, individually and as district attorney, Vendrasco, and Darling filed a motion for summary judgment on the grounds that every allegation plaintiffs made against them was barred by the doctrine of absolute prosecutorial immunity.   Plaintiffs opposed the motion, but defendants objected to the evidence plaintiffs presented to demonstrate triable issues existed.   The court rejected plaintiffs' evidence and granted the motion on the affirmative defense of absolute immunity.

Standard of Review

 The summary judgment procedure aims to discover whether there is evidence requiring the fact finding procedures of a trial.   (M.B. v. City of San Diego (1991) 233 Cal.App.3d 699, 703, 284 Cal.Rptr. 555.)   As the reviewing court, we determine de novo whether an issue of material fact exists and whether the moving party was entitled to summary judgment as a matter of law.  (Redevelopment Agency v. International House of Pancakes, Inc. (1992) 9 Cal.App.4th 1343, 1348, 12 Cal.Rptr.2d 358.)   In other words, we must assume the role of the trial court and reassess the merits of the motion.  (Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 548, 5 Cal.Rptr.2d 674.)   In doing so, we will consider only the facts properly before the trial court when it ruled on the motion.  (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 30, 21 Cal.Rptr.2d 104.)

 In carrying out our appellate function, we apply the same three-step analysis of the trial court:

“ ‘First, we identify the issues framed by the pleadings since it is these allegations to which the motion must respond․  [¶] Secondly, we determine whether the moving party's showing has [satisfied his or her burden of proof] and justif[ies] a judgment in movant's favor․  [¶] When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue.’ ”  (Zuckerman v. Pacific Savings Bank (1986) 187 Cal.App.3d 1394, 1400–1401, 232 Cal.Rptr. 458;  see also Saldana v. Globe–Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1513, 285 Cal.Rptr. 385.)

 We also note that the moving party's papers are strictly construed and those of the opposing party liberally construed.   Any doubts as to the propriety of granting the motion must be resolved in favor of the party opposing the motion.  (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1618, 264 Cal.Rptr. 756.)

The Pleadings

The pertinent portions of Pitts's third amended complaint and Dills's fourth amended complaint, as they apply to the summary judgment motion, allege:

1. Defendants Darling and Vendrasco intimidated, threatened and coerced witnesses and alleged victims in investigating crimes charged against plaintiffs and in the course of subsequent legal proceedings, thereby knowingly procuring and using false testimony.   Darling and Vendrasco intentionally suppressed and failed to reveal exculpatory evidence discovered by defendants which deprived plaintiffs of their constitutional rights.   Darling interrogated several children at the request of the sheriff's department.   In particular, Darling took charge of interrogating the female children because they denied being molested, and she procured false testimony from them.   Darling was not a prosecutor, investigator, nor employed by the sheriff's department during this period.

Darling knew at all times the false statements which the children were induced to make would be repeated at trial.   The practices used by Darling and others, of coercion, intimidation, threats, promises and bribery, were enumerated on more than 30 occasions in the case of People v. Pitts, depriving plaintiffs of their constitutional rights under the Fifth, Sixth, and Fourteenth Amendments.

2. Defendants Vendrasco and Darling conspired to create and procure false testimony by the use of threats, intimidation, coercion, force and bribery knowing the testimony would cause constitutional violations.

3. Defendants County and Jagels in their official capacities established a pattern, custom, and practice of procuring false statements and testimony by threats, promises, intimidation, force, bribery and coercion of alleged victims, thereby establishing an official policy governing the conduct of employee defendants.   This official policy consisted of eliciting false testimony by threats, improper promises, intimidation, repetitive suggestion, and prolonged periods of interrogation.

Each defendant failed to prevent such conduct and failed to provide adequate training, procedures, guidelines, rules and regulations to prevent the conduct.   Defendants County and Jagels knew or should have known of the training requirements and guidelines which existed in California by statute between 1983 and 1985 for interviewing potential molestation victims.   County, by ordinance enacted in 1981, made the statutory requirements and guidelines mandatory for County employees.   Darling and Vendrasco had not completed such training.

Defendants denied the allegations and asserted, among other affirmative defenses, that the employee defendants had absolute immunity from liability, and the employees acted at all times in good faith and with a reasonable belief that their actions were reasonable and proper and as such were immune from liability.

Defendants' Evidence

In support of their summary judgment motion, defendants submitted declarations by Jagels, Vendrasco, and Darling.

Jagels declared he was at all relevant times the District Attorney of Kern County, all actions taken by him were done in the course and scope of his employment as district attorney, and he was responsible for managing the office of the district attorney.   He had no cause to question the veracity of any child witness against the plaintiffs, and he had no knowledge of any threats, promise, intimidation, bribery, or perjury of any child witness.   Jagels did not personally interrogate any of the child witnesses.   Throughout the criminal prosecution of the Pitts case, Vendrasco and Gindes were assigned full responsibility of prosecuting the case, and neither was an investigator or law enforcement officer.   Jagels declared he had no knowledge of suppression or withholding of evidence or intimidation, threatening, or coercion of witnesses.   Had he obtained such information, he would have subjected that employee to disciplinary action pursuant to the applicable procedures and provisions of Government Code section 31108 et seq., the Kern County Code, chapter 3.04, section 3.04.080, and the Kern County Administrative Procedures Manual.

 Vendrasco 3 stated he was employed as a deputy district attorney and the chief prosecutor in the Pitts case, and all contacts he had with plaintiffs and witnesses were made in the course and scope of his prosecution of that case.   Vendrasco was never an investigator nor did he participate in the sheriff's office investigation of the criminal case.   Vendrasco declared he had not bribed, coerced, intimidated, or pressured any witness in the Pitts case, and did not suppress any evidence.

According to all three declarations, Darling was employed by the Kern County District Attorney as a Sexual Abuse Program Coordinator.   Her duties were to provide support for child sexual abuse victims, to encourage and facilitate communication between witnesses, families and deputy district attorneys, and to familiarize the witnesses with the court process.   Jagels declared that Darling's job was to engage in conversation with the child victims in order to assist the deputy district attorneys.   Darling was authorized, if requested by the deputy district attorneys, to ask child sexual abuse victims about their experiences.   Her declaration stated she was not an investigator or law enforcement officer.

Plaintiffs' Opposition

Plaintiffs opposed the summary judgment motion on the grounds that (1) the functions performed by Vendrasco and Darling were nonprosecutorial, and (2) Jagels and the County were not immune for supervisorial delinquencies even if the employees were immune.   Plaintiffs filed voluminous exhibits,4 all of which were objected to by defendants on grounds they were unauthenticated, contained hearsay, and were irrelevant.

In its ruling on the summary judgment motion the trial court found all the written material inadmissible because it did not comply with Code of Civil Procedure section 437c or the Evidence Code, and because the evidence was not relevant to the issue of moving parties' immunity.   The court did not rule specifically as to each item of evidence, but rather made a blanket ruling.   Plaintiffs, on appeal, claim the evidence was not submitted for the truth of the matter but to establish a pattern of conduct by employees of the district attorney's office relating to a failure to adequately train both prosecutors and support personnel in the constitutional limits of proper interrogation and suppression of exculpatory evidence.

 In reviewing the trial court's finding of inadmissibility as to the evidence in question, we look to see if there was an abuse of discretion.

“Discretion is abused whenever it exceeds the bounds of reason, all of the circumstances before it being considered.  [Citations.]  In exercising its discretion, the court does not have absolute and unlimited power;  it must act with an impartial discretion guided and controlled in its exercise by fixed legal principles.  [Citations.]  As a reviewing court, we will not disturb this exercise of the trial court's discretion unless it appears that its order was a clear abuse or a miscarriage of justice.  [Citation.]”  (Moyal v. Lanphear (1989) 208 Cal.App.3d 491, 498, 256 Cal.Rptr. 296.)

 Additionally, we recognize that the trial court is vested with wide discretion in determining relevance under Evidence Code section 210.   (People v. Kelly (1992) 1 Cal.4th 495, 523, 3 Cal.Rptr.2d 677, 822 P.2d 385.)

 The evidence submitted by plaintiffs includes numerous items which are unauthenticated, numerous items which consist of partial statements (selected pages or paraphrased remarks), unidentified portions of what appear to be trial transcripts, numerous transcripts of interviews of unrelated cases, demands for production of evidence in unrelated cases, etc.   In light of the trial court's wide latitude in determining relevance, we find no abuse of discretion in ruling the evidence inadmissible.

We also note the court's ruling was not particularly prejudicial to the plaintiffs because much of their excerpted evidence was included in full deposition transcripts which defendants submitted.   For instance, when plaintiffs attempted to submit a declaration of victim W.B. that the court found either unauthenticated or irrelevant, defendants submitted the entire deposition of W.B., which makes similar statements relied on by plaintiffs.

 One exhibit submitted by plaintiffs consists of several pages from the Report On The Kern County Child Abuse Investigation published by the Office of the Attorney General, Division of Law Enforcement, Bureau of Investigation, State of California dated September 1986.   Plaintiffs ask that we now take judicial notice of the entire report.   While judicial notice is permissible pursuant to Evidence Code sections 452 and 459, we deny the request.   The Attorney General's report does not concern this particular case.5

Overview of Applicable Law

On appeal, plaintiffs argue the summary judgment motion should not have been granted because a triable issue of fact exists as to whether Vendrasco and Darling were acting as prosecutors when the alleged acts occurred.   Plaintiffs also claim a triable issue of fact exists as to whether Jagels and County provided inadequate training of employees, thereby promulgating an unconstitutional policy, custom or practice, or permitting an unconstitutional custom or practice to remain in effect.

The causes of action targeted by the summary judgment motion and ruling were founded on section 1983 of the Civil Rights Act. (42 U.S.C. § 1983 [section 1983].)   The statute provides:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State … subjects, or causes to be subjected, any citizen of the United States … to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law․”

 Although section 1983 makes “every person” acting under color of state law liable for depriving another of his or her constitutional rights, Congress did not abrogate the common-law immunity that state officials traditionally enjoyed.  (Tenney v. Brandhove (1951) 341 U.S. 367, 379, 71 S.Ct. 783, 789–790, 95 L.Ed. 1019.)   Hence, legislators, judges, prosecutors and witnesses are absolutely immune from liability under section 1983 when acting within the scope of their office.  (See 8 Witkin, Summary of Cal. Law (9th ed. 1987) Constitutional Law, § 715, pp. 194–195, and cases cited therein.)   Most state and local officials who are not entitled to absolute immunity are entitled to qualified immunity.  (Id. at § 716, p. 195.)

 Federal law controls in determining the scope of immunity of governmental officials from a section 1983 lawsuit.  (Gensburg v. Miller (1994) 31 Cal.App.4th 512, 519, 37 Cal.Rptr.2d 97.)

 In Imbler v. Pachtman (1976) 424 U.S. 409, 430, 96 S.Ct. 984, 994–995, 47 L.Ed.2d 128, the Supreme Court held that prosecutors are absolutely immune from section 1983 liability for conduct “intimately associated with the judicial phase of the criminal process.”   When the prosecutor acts as an advocate by initiating a prosecution and presenting the state's case, absolute immunity is warranted.  (424 U.S. at pp. 430–431, 96 S.Ct. at 994–996.)   The court in Imbler left open the question of whether absolute liability attaches to a prosecutor's acts that are functionally administrative or investigative.  (Ibid.)

The Ninth Circuit, however, concluded that absolute prosecutorial immunity attached to the actions of a prosecutor if those actions are performed as part of the prosecutor's preparation of his case, even if they can be characterized as “administrative” or “investigative.”  (Freeman on Behalf of the Sanctuary v. Hittle (9th Cir.1983) 708 F.2d 442, 443;  Ybarra v. Reno Thunderbird Mobile Home Village (9th Cir.1984) 723 F.2d 675, 679.)  Freeman held that an investigator for the prosecuting attorney's office was absolutely immune under the prosecutorial immunity doctrine for activities conducted under the authority of that office.  (See also M.K. through Hall v. Harter (E.D.Cal.1989) 716 F.Supp. 1333, 1336–1337.)

 The absolute prosecutorial immunity inquiry centers on the nature of the official conduct challenged, not the status of the actor.   If the conduct is within the scope of the actor's authority and is quasi-judicial in nature, it falls within the sphere of absolute immunity.  (Schlegel v. Bebout (9th Cir.1988) 841 F.2d 937, 943.)   The test to determine whether conduct of a state official is within his or her authority is not whether the act performed was manifestly beyond his or her authority, but rather whether it was more or less connected with the general matters committed to his or her control.  (Ibid.)

 Absolute immunity also depends on the function the official was performing when taking the actions which provoked the lawsuit.   The court determines whether such action is “ ‘intimately associated with the judicial phase of the criminal process.’  [Citation.]”  (Schlegel v. Bebout, supra, 841 F.2d at p. 943.)   Gathering evidence or conferring with potential witnesses regarding their knowledge of the underlying events is part of the prosecutor's preparation of the case and such conduct is entitled to absolute immunity.  (Demery v. Kupperman (9th Cir.1984) 735 F.2d 1139, 1144.)

“… The fact that inducing false testimony is wrongful and indefensible is not relevant to the question whether immunity attaches.   Underlying the doctrine of absolute immunity is a recognition that the advancement of broader public policies sometimes requires that concededly tortious conduct, no matter how reprehensible, go unremedied, at least by means of a civil action for damages.”  (Ibid.)

 Courts have found absolute immunity for a prosecutor when:  a prosecutor conspired to bring false criminal charges against a plaintiff (Siano v. Justices of Massachusetts (1st Cir.1983) 698 F.2d 52;  Perez v. Borchers (5th Cir.1978) 567 F.2d 285, overruled on other grounds in Sparks v. Duval County Ranch Co., Inc. (5th Cir.1979) 604 F.2d 976, 978, fn. 2;  Jennings v. Shuman (3d Cir.1977) 567 F.2d 1213);  a prosecutor allegedly withheld evidence favorable to a plaintiff and instructed a witness to testify evasively, if not falsely (Hilliard v. Williams (6th Cir.1976) 540 F.2d 220);  a prosecutor had a plaintiff improperly indicted, suborned perjury at the criminal trial, and filed false affidavits (Bruce v. Wade (5th Cir.1976) 537 F.2d 850);  a prosecutor used perjured testimony (Hansen v. Black (9th Cir.1989) 885 F.2d 642);  prosecutors interviewed a witness to a drive-by gang shooting, encouraged him to testify at a preliminary hearing, and then allegedly failed to warn or protect the witness, who was later murdered in apparent retaliation for his testimony (Falls v. Superior Court (1996) 42 Cal.App.4th 1031, 49 Cal.Rptr.2d 908).   In addition, the claim of conspiracy is defeated by absolute immunity.  (McMartin v. Children's Institute International (1989) 212 Cal.App.3d 1393, 1406, 261 Cal.Rptr. 437.)

Myers v. Morris (8th Cir.1987) 810 F.2d 1437 is factually similar to the underlying criminal case here.   The case involved a child sexual abuse investigation involving a number of children in which two plaintiffs were acquitted and charges pending against the remaining eleven were dismissed.   They then filed civil suits against the county, prosecutors, sheriff's deputies, etc. claiming conspiracy, fraud, malice, coercion, and violation of constitutional rights and state law.   The actual conduct complained of amounted to prosecution, handling of evidentiary material, arrest, interrogation of the children, and separation of the parents from their children.   The plaintiffs claimed the prosecutor suborned perjury of a major prosecution witness in exchange for a plea bargain, she made misrepresentations to the family court, she caused witnesses to give false testimony, she withheld potentially exculpatory evidence, and she destroyed two items of evidence.   (Id. at p. 1445.)   The court in Myers found these actions did not defeat absolute prosecutorial immunity.6

 On the other hand, “[W]hen a prosecutor ‘functions as an administrator rather than as an officer of the court’ he is entitled only to qualified immunity.”  (Buckley v. Fitzsimmons (1993) 509 U.S. 259, 273, 113 S.Ct. 2606, 2616, 125 L.Ed.2d 209.)   Under the qualified immunity doctrine, a governmental officer is not liable if his or her conduct did “not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  (Harlow v. Fitzgerald (1982) 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396.)

Courts have found that the following actions of a prosecutor fall within the administrative, rather than the prosecutorial, function:  giving legal advice to the police on the propriety of hypnotizing a suspect and on whether probable cause existed to arrest the suspect (Burns v. Reed (1991) 500 U.S. 478, 493–496, 111 S.Ct. 1934, 1943–1945, 114 L.Ed.2d 547);  conducting investigative work before probable cause for arrest exists (Buckley v. Fitzsimmons, supra, 509 U.S. at pp. 271–275, 113 S.Ct. at pp. 2615–2616);  making statements to the press announcing an indictment (id. at pp. 275–278, 113 S.Ct. at pp. 2617–2618);  authorizing wiretap in performance of Attorney General's national security functions (Mitchell v. Forsyth (1985) 472 U.S. 511, 520, 105 S.Ct. 2806, 2812, 86 L.Ed.2d 411);  taking regulatory measures not to prepare for an adversarial proceeding but to ensure compliance with procedures (Schlegel v. Bebout, supra, 841 F.2d at p. 944).

 Local and state public entities are not liable on a respondeat superior basis under section 1983.  (Monell v. New York City Dept. of Social Services, supra, 436 U.S. at p. 694, 98 S.Ct. at pp. 2037–2038.)   Only when the governmental entity itself commits the misdeed, through execution of a policy or custom, is the entity exposed to section 1983 liability.  (Ibid.)  Governmental entities do not, however, enjoy any absolute or qualified immunity from section 1983 suits.  (Leatherman v. Tarrant County Narcotics Unit (1993) 507 U.S. 163, 166, 113 S.Ct. 1160, 1162, 122 L.Ed.2d 517.)

With these principles in mind, we turn to the claims made against each of the defendants.

A. Claims against Vendrasco

 Plaintiffs' basic theory of liability as to Vendrasco is that he coerced, intimidated, and forced child witnesses to lie or create testimony at their parents' trial, that he suppressed evidence and failed to reveal exculpatory evidence, and that he conspired with others to procure false testimony.   Plaintiffs allege that Vendrasco told W.B., in particular, that if she testified as instructed, she could go home with her mother, but if she did not, she would never see her mother again.

The evidence is undisputed that all of Vendrasco's alleged conduct occurred while he was acting as deputy district attorney during the preparation for and duration of the Pitts trial.   The types of acts alleged by plaintiffs, conspiring to coerce, intimidate and force witnesses to lie or create stories and thereby creating false testimony, suppressing evidence, and failing to reveal exculpatory evidence, even if they occurred, all fall under the umbrella of absolute prosecutorial immunity.   Accordingly, the trial court properly granted summary judgment for Vendrasco.

B. Claims against Darling

 Plaintiffs allege Darling was not a prosecutor, investigator, or sheriff.   They allege she intimidated, threatened and coerced the child witnesses, procured false testimony, suppressed evidence, and failed to reveal exculpatory evidence.   In particular, plaintiffs contend Darling interrogated W.B. and C.H. at the specific request of the sheriff's office.   Darling caused W.B. and A.B. to make known false accusations against the plaintiffs and procured perjured testimony from them as well as from C.H. and the three M. children.   Darling knew the false statements would be repeated at trial.   Plaintiffs claim she conspired with Gindes, Vendrasco and Rutledge to procure this false testimony.

Under the federal cases previously discussed, the immunity inquiry does not focus on Darling's status, but rather on the functional nature of her conduct.   While she was not herself a prosecutor, she was employed by the district attorney's office because of her special knowledge, experience, and skill in dealing with child sexual abuse victims.   Even though she may have taken some direction from the sheriff's department, she performed functions analogous to a prosecutor in preparation of the case and thus was entitled to the same immunity as a prosecutor.  (See, e.g., Freeman on Behalf of the Sanctuary v. Hittle, supra, 708 F.2d at p. 443.)   The court properly granted summary judgment for her.

C. Claims against Jagels

 It is undisputed that Jagels did not personally prosecute the Pitts case and he never personally interrogated plaintiffs or any of the child witnesses.   Plaintiffs allege, however, that as district attorney Jagels was deliberately and recklessly indifferent to the need for training and supervision of his employees which resulted in the violation of plaintiffs' constitutional rights.   Plaintiffs further allege that as an official of County, Jagels was responsible for any practice or custom that may have been created within his department involving procuring false statements and testimony through threats, promise, intimidation, force, bribery and coercion.   They also allege Jagels failed to train his staff according to requirements and guidelines which existed in California by statute between 1983 and 1985 for interviewing potential molestation victims.

 Generally, a supervisory officer is not liable for the conduct of a subordinate which violates another's constitutional rights unless the supervisor was personally involved in the conduct.  (Jones v. City of Chicago (7th Cir.1988) 856 F.2d 985, 992.)   The Jones court defined the applicable standard:

“… [S]upervisors who are merely negligent in failing to detect and prevent subordinates' misconduct are not liable, because negligence is no longer culpable under section 1983.  [Citations.]  Gross negligence is not enough either.   The supervisors must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see.   They must in other words act either knowingly or with deliberate, reckless indifference.  [Citations.]․”  (Ibid.)

Under this standard, initially, there appears to be a triable issue of fact whether Jagels provided his staff with training and supervision to protect the plaintiffs' constitutional rights.

Jagels declared that he actively managed his staff, that he considered the alleged conduct (coercion of perjured testimony and suppression of evidence) malfeasance, and that he had procedures in place to address the discipline of employees engaged in such actions.   In training his deputy district attorneys, Jagels relied on their initial legal and ethical training received in preparation for admission to the bar.   As to Darling, Jagels relied on her past training and experience in her field.   He also claimed no knowledge of any wrongdoing on the part of Vendrasco or Darling.

Jagels did not, however, offer any evidence showing how he supervised Darling or Vendrasco, or that he monitored their conduct to detect and prevent their use of unlawful techniques in preparing for and trying the Pitts or other cases.

Plaintiffs submitted much evidence which, if found true, would support a conclusion that Jagels' subordinates used coercive techniques when interviewing suspected child sexual abuse victims.   To the extent the evidence shows a widespread pattern of misconduct engaged in by employees of the district attorney's office, the fact finder could reasonably infer knowledge and acquiescence by Jagels.  (McClelland v. Facteau (10th Cir.1979) 610 F.2d 693, 697–698.)   This leads to a triable issue of fact which becomes a question for the jury.  (Act Up!/Portland v. Bagley (9th Cir.1993) 988 F.2d 868, 873;  Thorsted v. Kelly (9th Cir.1988) 858 F.2d 571, 575.)

The question remains, however, what level of immunity attaches to Jagels.   While conceding that Jagels is entitled to absolute immunity when performing prosecutorial functions, plaintiffs argue that as a supervisor/trainer, Jagels was acting in an administrative capacity.   As noted earlier, a prosecutor functioning as an administrator rather than as an officer of the court is entitled only to qualified immunity.  (Buckley v. Fitzsimmons, supra, 509 U.S. at pp. 273–275, 113 S.Ct. at p. 2616.)

Plaintiffs have not cited any case holding that a prosecutor who is responsible for training and/or supervising others who perform prosecutorial functions is entitled to only qualified immunity.   To the contrary, we are aware of at least three cases which seem to reject that proposition.   In Hennessey v. State of Wash., Dept. of Social (E.D.Wash.1985) 627 F.Supp. 137, the conduct of a social services worker (Winterburn) in divulging information to a prosecutor for initiation of a child dependency proceeding was found absolutely immune.  (Id. at p. 140.)   The plaintiffs also sought damages from Winterburn's superior (Padelford), alleging that Padelford knew of Winterburn's allegedly improper conduct and failed to take appropriate action.   The district court dismissed that claim, stating:

“This theory is nonetheless unavailing to the plaintiffs because Padelford is covered by the same absolute prosecutorial immunity as is his subordinate.   His failure to take affirmative steps to prevent Ms. Winterburn's conduct is precisely the type of conduct to which immunity should attach.   The protective services worker assigned to a particular case is infinitely more familiar with the facts involved and second guessing by a superior who is understandably fearful of civil liability would undermine the entire system.   It would present anomalous results if Ms. Winterburn were allowed to act with impunity in preparing her case only to have her superior prevent the institution of any formal proceedings․”  (Hennessey v. State of Wash., Dept. of Social, supra, at p. 141.)

In Hamilton v. Daley (7th Cir.1985) 777 F.2d 1207 the Seventh Circuit summarily found that a cause of action against a state's attorney for negligently failing to train and supervise his employees was frivolous.  “Since absolute immunity protects prosecutorial decisions, supervision of the prosecutors who make these decisions is similarly immune.”  (Id. at p. 1213, fn. 5.)

Likewise, the Ninth Circuit extended absolute immunity to a county's prosecuting attorney and a deputy for prosecutorial conduct of their subordinate.  (Freeman on Behalf of the Sanctuary v. Hittle, supra, 708 F.2d at p. 443.)

None of the three cited cases presents much in the way of analysis leading to their conclusions.   Another case, involving an only slightly different issue, however, fills the analytical void.  Haynesworth v. Miller (D.C.Cir.1987) 820 F.2d 1245 was an action against the District of Columbia and several of its officials alleging that the defendants pursued a policy of retaliatory prosecution against certain persons, including the plaintiff Haynesworth.7  One of the defendants was Frank Miller, identified as “Chief of the Law Enforcement Section of the Corporation Counsel's Office.”   Haynesworth alleged Miller was liable both for directly participating in a retaliatory prosecution against him and for establishing and implementing policy for the Corporation Counsel.   The trial court dismissed the action.

The Court of Appeals for the District of Columbia Circuit, in an exhaustive opinion, addressed the immunity issues involving the prosecutor-defendant, Miller.   After concluding Miller's alleged conduct as a direct participant in the prosecution against Haynesworth was absolutely immune under Imbler v. Pachtman, the court turned to the question of whether Miller's role in formulating general policies on prosecution fell under the umbrella of advocacy or was an administrative function.  (Haynesworth v. Miller, supra, 820 F.2d at pp. 1264–1268.)

The court first concluded there is “no meaningful distinction between a decision on prosecution in a single instance and decisions on prosecution formulated as policies for general application.”  (Haynesworth v. Miller, supra, 820 F.2d at p. 1269.)   Because the former is absolutely immune, the broad protections of Imbler should extend to the latter.

The Haynesworth court further examined the issue with reference to the policy principles underlying Imbler.   It opined that if prosecutorial policymaking were not insulated, an abundance of vexatious litigation would result, thereby inhibiting the performance of prosecutorial duties.  (820 F.2d at pp. 1269–1270.)   In addition, the court noted the existence of alternative safeguards sufficient to check official misconduct in formulating prosecutorial policies.   Those safeguards include trial and appellate mechanisms attacking suspect practices in resulting criminal proceedings, and the subjection of prosecutors to professional discipline, public censure, and possible criminal penalties for engaging in unsavory acts.  (Id. at p. 1270.)

The Haynesworth court concluded its discussion regarding prosecutorial immunity with this observation:

“We are mindful that our determination that Miller is absolutely immune may leave a ‘genuinely wronged defendant without civil redress,’ but we realize, as the Court did in Imbler, that “ ‘the answer must be found in a balance between the evils inevitable in either alternative.’ ”   Were we to extend only qualified immunity to promulgation of standards of prosecution, we would deter the formulation of policy, thereby jeopardizing individual defendants and the criminal justice system as a whole.   Given the means currently available to deter misconduct in this area, we view the additional protection afforded by the civil remedy for damages as insufficient justification to tie the prosecutor's hands in this regard․” (820 F.2d at pp. 1270–1271, fns. omitted.)

 We cannot agree with the plaintiffs that they can avoid the bar of absolute prosecutorial immunity by facilely labeling Jagels' supervising and training actions or inactions as “administrative.”   Because the Supreme Court has applied a functional approach in actions involving government officials (Burns v. Reed, supra, 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547), a deeper analysis is required.   When the particular conduct for which the plaintiff seeks to hold the district attorney responsible is “intimately associated with the judicial phase of the criminal process,” it is part of the prosecutorial function.  (Imbler v. Pachtman, supra, 424 U.S. at p. 430, 96 S.Ct. at p. 995.)   Merely because a certain defendant's role was that of supervisor or trainer should not necessarily affect the immunity question.   Instead, when a defendant is sought to be held liable because of his supervising/training action or inaction, we think the appropriate questions are:  Supervising what?   Training to do what?   If the “what” is a prosecutorial function, absolute immunity should attach.

The allegations against Vendrasco and Darling were that they coerced witnesses to give false testimony, suppressed evidence, and failed to reveal exculpatory evidence.   That conduct, if proved, was part of the prosecutorial function.   Thus, even assuming the plaintiffs could further prove that Jagels knew of and approved, facilitated, condoned, or turned a blind eye to the behavior of his subordinates, he is entitled to the same absolute immunity.

If Jagels had actively participated in interviewing witnesses, presenting testimony, suppressing evidence, or failing to reveal exculpatory evidence, he would be absolutely immune under Imbler.   Denying him that immunity for passive conduct appears anomalous, and nothing in the applicable federal case law supports such a result.

 We also think it unimportant, in determining the nature of Jagels' immunity, whether his alleged failures were pursuant to a general policy which he followed in all cases, or whether they were restricted solely to the Pitts case.   Like the Haynesworth court, we see no meaningful distinction between general policies and decisions made in specific prosecutions.  (Haynesworth v. Miller, supra, 820 F.2d at p. 1269.)

Further, if a supervising prosecutor could be subject to liability for acts committed by a subordinate, who is absolutely immune, the policy considerations undergirding the Imbler doctrine would be weakened.   Many vexatious suits would undoubtedly be filed against those responsible for training and supervising prosecutorial personnel.   Fear of potential liability would interfere with performance of the prosecutorial duties of the supervisor who, in turn, would likely influence the subordinate in making prosecutorial decisions.  (See Imbler v. Pachtman, supra, 424 U.S. at pp. 424–425, 96 S.Ct. at pp. 992–993;  Hennessey v. State of Wash., Dept. of Social, supra, 627 F.Supp. at p. 141.)

If such suits were allowed, they would devolve into “a virtual retrial of the criminal offense in a new forum.”  (Imbler v. Pachtman, supra, 424 U.S. at p. 425, 96 S.Ct. at p. 992.)   They also could have an adverse effect upon the criminal justice system by hampering prosecutorial judgment in calling witnesses and presenting evidence (id. at p. 426, 96 S.Ct. at p. 993) and by blurring the focus in postcriminal trial proceedings brought to determine whether there was a fair trial under law (id. at p. 427, 96 S.Ct. at p. 993).

Jagels was entitled to absolute immunity, and the court properly granted his motion for summary judgment based thereon.

D. Claims against County

 The plaintiffs alleged that County established a pattern, custom and practice of procuring false statements leading to constitutional violations of plaintiffs' rights.   If proven, such allegations could expose County to section 1983 liability under Monell v. New York City Dept. of Social Services, supra, 436 U.S. 658, 98 S.Ct. 2018.   The trial court granted County's summary judgment motion as it pertained to the actions of Vendrasco, Darling, and Jagels, giving two reasons for its decision.   First, County is absolutely immune from liability stemming from any act for which its employees have absolute immunity, citing Whelehan v. County of Monroe (W.D.N.Y.1983) 558 F.Supp. 1093, 1108.   Second, County has no ability to hire, fire, or discipline Jagels, who is an elected public official.   We will conclude that neither of the trial court's stated reasons supports the judgment.

 In what was plainly labeled “obiter dictum,” the federal district court in Whelehan v. County of Monroe, supra, opined that municipal entities are entitled to the same absolute immunity as their individual employees engaging in prosecutorial conduct.  (Id. at pp. 1104–1108.)   Other courts reached the opposite conclusion.  (See, e.g., Wagner v. Genesee County Bd. of Com'rs (E.D.Mich.1985) 607 F.Supp. 1158, 1170.)   The United States Supreme Court has resolved the question.   In Leatherman v. Tarrant County Narcotics Unit, supra, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517, after reviewing prior decisions Chief Justice Rehnquist, speaking for a unanimous court, stated unequivocally that “unlike various government officials, municipalities do not enjoy immunity from suit—either absolute or qualified—under [section] 1983.”  (Id. at p. 166, 113 S.Ct. at p. 1162.) 8  Thus, the judgment for County cannot be affirmed on the basis of immunity.

The trial court's second stated reason requires a more extended discussion.   As noted, the trial court stated that County lacked any right to hire, fire, or discipline Jagels, or suggest how he should run his department.   Impliedly, the court concluded that absent such right of control County could not be held responsible for any of Jagels' alleged acts or omissions.

 In Monell v. New York City Dept. of Social Services, supra, 436 U.S. 658, 98 S.Ct. 2018, the Supreme Court held that it is only “when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under [section] 1983.”  (436 U.S. at p. 694, 98 S.Ct. at pp. 2037–2038.)   Such a policy or custom may be one of failing to train its employees, resulting in deliberate indifference to the deprivation of plaintiff's constitutional rights.   (Canton v. Harris (1989) 489 U.S. 378, 392, 109 S.Ct. 1197, 1206–1207, 103 L.Ed.2d 412.)   This concept of deliberate indifference does not hold the county at fault for the actions of its employees on a respondeat superior basis;  it holds the county liable for its own actions which result in deprivation of constitutional rights.  (Owens v. Haas (2d Cir.1979) 601 F.2d 1242, 1246.)

One of the elusive questions raised by the Monell rule is who is a policymaker.   In Pembaur v. Cincinnati (1986) 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452, the Court was unable to agree on the precise definition of a policymaker for section 1983 purposes.   According to a plurality of the Court, a policymaker is one who, under state law, “possesses final authority to establish municipal policy with respect to the action ordered.”  (475 U.S. at p. 481, 106 S.Ct. at p. 1299 (plur. opn. of Brennan, J.).)   Two concurring justices questioned whether the definition was too broad.  (Id. at pp. 486, 491, 106 S.Ct. at pp. 1301–1302, 1304 (conc. opns. of White and O'Connor, JJ.).)   The definitional issue has apparently not been resolved by a majority of the Court.  (See St. Louis v. Praprotnik (1988) 485 U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107.)   There is also no clear agreement whether the identification of policymakers is purely a question of state law or a question of fact.  (Id. at p. 124, 108 S.Ct. at p. 924 [“the identification of policymaking officials is a question of state law”] (plur. opn. of O'Connor, J.));  (id. at p. 143, 108 S.Ct. at p. 934 [“state law will naturally be the appropriate starting point”] (conc. opn. of Brennan, J.);   see Hammond v. County of Madera (9th Cir.1988) 859 F.2d 797, 802, fn. 1.)

Other federal courts have addressed the question of whether an elected district attorney is a policymaker for whose acts or omissions the county which he represents can be held liable under section 1983.   In Baez v. Hennessy (2d Cir.1988) 853 F.2d 73, the Second Circuit concluded that under New York law, the County of Onondaga could not be held responsible for conduct of its district attorney.  (Id. at p. 77.)   Among reasons given by the court for its decision were state statutes which provided that:  if the Governor required the state Attorney General to take over prosecution of local criminal actions or proceedings, the district attorney is required to exercise powers and perform duties delegated by the Attorney General (id. at p. 76);  the district attorney can be removed from office only by the Governor, not by the county voters who elected him (id. at p. 77);  the Governor has the right to fill vacancies in the office of district attorney by appointment (ibid.);   the Legislature retains power to regulate district attorneys' salaries (ibid.).   The court also referred to state case law holding that when prosecuting a criminal matter, a district attorney represents the state, not the county.  (Ibid.)  The court concluded that because state law limited the county's authority over the district attorney, the county was not liable for his conduct.  (Ibid.)  However, the viability of Baez as reliable precedent, even in New York, is highly suspect in light of subsequent decisions.

In dictum in Gentile v. County of Suffolk (2d Cir.1991) 926 F.2d 142, the same court which decided Baez suggested its holding was restricted to cases based solely upon a district attorney's decision to prosecute.  (Id. at p. 152, fn. 5.)   That limitation was expressly adopted by the same court in Walker v. City of New York (2d Cir.1992) 974 F.2d 293.   The Walker complaint included allegations very similar to those in this case, that is, the district attorney was deficient in training and supervising his subordinates regarding their obligations to disclose exculpatory evidence and to avoid the use of perjured evidence.   The Second Circuit held that these allegations, amounting to a challenge of the district attorney's management of the office, made the Baez holding inapplicable.  (974 F.2d at p. 301.)   Because no official of the municipal defendant had veto power over the district attorney's training and supervisory decisions, the district attorney acted as a municipal policymaker.  (Ibid.) 9

We fail to see any logical basis for the distinction drawn by the Second Circuit between cases in which the district attorney makes a decision to prosecute and cases in which the office management is attacked for allegedly deficient training and supervision of prosecutorial personnel.   In our earlier discussion of the immunity issue, we decided that if the actual conduct giving rise to injury was a prosecutorial function, absolute immunity attached both to those directly involved in the conduct and those charged with training and supervision.  (See part 1.C, ante.)   Similarly, we do not see that a district attorney making decisions to prosecute is any more or less a policymaker than one who is charged with training and supervising subordinates in how to conduct prosecutions.

Thus, insofar as we were to rely on the Second Circuit decisions, we would either have to extend the reasoning of Baez v. Hennessy to a training/supervision case, which that court has expressly refused to do, or rely on Walker v. City of New York as the latest decision on point.   Decisions from other courts persuade us to follow the latter course.

The Fifth Circuit has held that the district attorney of Dallas County, Texas acted as the county's official policymaker in establishing and implementing procedures for obtaining misdemeanor arrest warrants.  (Crane v. State of Tex. (5th Cir.1985) 759 F.2d 412.)   The Crane court adhered to a standard it had earlier announced in a case considering the circumstances in which the acts of a county judge would constitute official county policy for Monell purposes.   In Familias Unidas v. Briscoe (5th Cir.1980) 619 F.2d 391, 404, the court said:

“[A]t least in those areas in which he, alone, is the final authority or ultimate repository of county power, his official conduct and decisions must necessarily be considered those of one ‘whose edicts or acts may fairly be said to represent official policy’ for which the county may be held responsible under section 1983.”

Applying this standard to the case before it, the Crane court expressly rejected the contention that the district attorney was acting as a state, rather than a county, officer.  (Crane v. State of Tex., supra, 759 F.2d at pp. 427–428.)   Although not liable in his individual capacity, his conduct as a county officer engaged in furtherance of his duties constituted “official policy attributable to the County.”  (Id. at p. 430.)   The court expanded its original opinion when denying a petition for rehearing.  (Crane v. State of Tex. (5th Cir.1985) 766 F.2d 193.)   Recognizing that a Texas district attorney “has numerous, if relatively minor, attributes of a State official” 10 (id. at p. 194), it concluded that other, more significant, factors support the conclusion he is a local official.

“He is elected by the voters of his district, usually one county․  His major powers and duties—which concern the prosecution of serious crimes and which he exercises alone and without responsibility to the State Attorney General, who has no general prosecutorial powers—are limited to the territory of his district.   He is paid by county funds, although these are partly reimbursed by the state.   And the significance of the creation of his office by the State Constitution is diminished by the circumstance that other local offices are created by it as well.   See e.g., Article V, § 19 (Justices of the peace) and § 20 (County clerks).   In sum, much like the county itself, his office is a local entity, created by the State of Texas and deriving its powers from those of the State, but limited in the exercise of those powers to the county, filled by its voters, and paid for with its funds․” (766 F.2d at p. 195.)

The Fifth Circuit followed Crane as to a Louisiana district attorney in Mairena v. Foti (5th Cir.1987) 816 F.2d 1061, 1064.   A federal district court did likewise regarding a Minnesota district attorney.  (In re Scott County Master Docket (D.Minn.1985) 618 F.Supp. 1534, 1570.)

The Ninth Circuit considered the issue in a case involving claims against an Arizona county in Gobel v. Maricopa County (9th Cir.1989) 867 F.2d 1201.   The plaintiffs alleged they had been arrested on bad check charges without probable cause pursuant to a county policy and custom established by the county prosecuting attorney and his assistant.   The trial court granted the county's motion to dismiss, rejecting the notion that the county attorney was acting as a county policymaker in enforcing the state's bad check law.   On appeal the county made the same argument made here:  the prosecutor is not employed by the county but is a separate elected official whose powers and duties are defined by state statute.   The Ninth Circuit reversed, holding that “[b]y establishing investigative and enforcement policies for prosecuting bad check offenses, the county attorney, as the chief prosecutorial official for the county, may indeed be acting as a policymaker for the county.”  (Gobel v. Maricopa County, supra, at p. 1207.)

After discussing the holding in Crane v. State of Tex., supra, 759 F.2d 412 and 766 F.2d 193, the court concluded the plaintiffs “may be able to prove that in Arizona the county attorney is the kind of county official whose policy decisions automatically constitute county policy.”  (Gobel v. Maricopa County, supra, 867 F.2d at pp. 1208–1209.)   It referred to various sections of the Arizona Constitution which support a claim that a county attorney is a county officer.   The court also concluded that Maricopa County might be liable under section 1983 if the plaintiffs could establish it had a practice of gross negligence in training or supervision which caused their alleged constitutional deprivations.  (867 F.2d at p. 1209.)   It remanded the case for further proceedings.

Finally, this court has briefly dealt with the same issue with respect to a California district attorney.  Heffington v. County of Stanislaus, supra, 143 Cal.App.3d 838, 192 Cal.Rptr. 202 involved claims under section 1983 that the county had a custom of harassing citizens, including the plaintiff, resulting in the violation of the plaintiff's constitutional rights.   We reversed a judgment of dismissal after the county's demurrer was sustained without leave to amend.   Pertinent to the issue now before us, former Presiding Justice George A. Brown spoke for the court:

“While the complaint does not expressly allege that any of the county's lawmakers were aware of the alleged constitutional violations, it is a matter of judicial notice (Evid.Code, § 452) that Don Stahl, one of the individual defendants named in the complaint, is the District Attorney of Stanislaus County.   Under Monell, a district attorney is one ‘whose edicts or acts may fairly be said to represent official policy, …’ (Monell, supra, 436 U.S. 658, 694 [98 S.Ct. 2018, 2037–2038];  see also Wolf–Lillie v. Sonquist [ (7th Cir.1983) ] 699 F.2d 864, 870, indicating that a county sheriff's actions represent the official policy of the county.)   Moreover, since this case is still at the pleading stage, it would appear that the allegations in appellant's complaint are sufficient to implicate those who represent the county's official policy.  (Turpin v. Mailet [ (2d Cir.1980) ] 619 F.2d 196, 200–202.)”  (Heffington v. County of Stanislaus, supra, 143 Cal.App.3d at pp. 843–844, 192 Cal.Rptr. 202, fn. omitted.)

The California Constitution requires the Legislature to provide for an elected district attorney in each county.  (Cal. Const., art. XI, § 1, subd. (b).)  Pursuant to that authority the Legislature has included district attorneys in the list of “officers of a county.”  (Gov.Code, § 24000, subd. (a).)  A person is not eligible to hold a county office unless he or she is a registered voter of the county in which the duties of the office are to be exercised.   (Gov.Code, § 24001.)   The duties of district attorneys are provided by state statute.  (Gov.Code, § 26500 et seq.)   Under its “home rule” provision the Constitution permits each county to adopt a charter, which shall provide for an elected district attorney, and his or her election, appointment, compensation, terms and removal.  (Cal. Const., art. XI, §§ 3, subd. (a), 4, subd. (c).)

It seems clear that a California district attorney, like those in Texas and Arizona considered in Crane v. State of Tex., supra, 759 F.2d 412, 766 F.2d 193, and Gobel v. Maricopa County, supra, 867 F.2d 1201, has attributes of both a state and a local officer.  (See Pitchess v. Superior Court (1969) 2 Cal.App.3d 653, 657, 83 Cal.Rptr. 41;  People v. Kilborn (1996) 41 Cal.App.4th 1325, 1333, 49 Cal.Rptr.2d 152.)   Lacking some persuasive authority, we cannot hold as a matter of law that Jagels was not a county policymaker for section 1983 purposes.

Nevertheless, County contends its potential liability for the plaintiffs' Monell claim is foreclosed because of the combined effect of the trial court's summary judgment rulings, the order of bifurcation, and the special verdicts.   Although its argument is very confusing, County apparently contends that all “custom and policy” claims against it were affected by the bifurcation order, which was not appealed.   Because of the summary judgment rulings and the special verdicts neither the court nor the jury found that the plaintiffs suffered any constitutional injury, so there is no basis on which County can be held liable under Monell.   The argument has no merit.

As noted earlier, the summary judgment ruling in County's favor was expressly limited to the immune actions or inactions of Vendrasco, Darling, and Jagels, and was based on the erroneous premise that County was likewise immune.   The order left no issues for trial on the Monell claims to the extent they rested on alleged conduct of Vendrasco, Darling, and Jagels.   The County's bifurcation motion was made after the summary judgment ruling and only pertained to the remaining defendants.   The special verdicts established that neither Rutledge, Fields, nor B. Darling violated any constitutional right of the plaintiffs, but the jury did not make any findings as to the prosecutorial defendants for the simple reason that no issue regarding the conduct of those defendants was ever submitted for decision.

County contends its position is supported by City of Los Angeles v. Heller (1986) 475 U.S. 796, 106 S.Ct. 1571, 89 L.Ed.2d 806.   We disagree.   Heller sued the city, two of its police officers, and members of the city's police commission, claiming he was arrested without probable cause and was subjected to excessive force during the arrest.   One of the officers was granted summary judgment before trial.11  The case was submitted to the jury as to the remaining officer's conduct solely on the question whether the plaintiff was arrested without reasonable cause or with unreasonable force.   There were no instructions on affirmative defenses, such as immunity.   The jury returned a general defense verdict.   The trial court then dismissed the case against the city and police commissioners.   The Supreme Court, reversing the Ninth Circuit Court of Appeals, held that the trial court acted properly.   Since the jury found that the officer inflicted no constitutional harm, the municipal defendants could not be liable to the plaintiff on his Monell claims even if the police department regulations authorized use of excessive force.  (475 U.S. at p. 799, 106 S.Ct. at 1573.)

This case plainly differs from Heller in that here the jury was never asked to, and did not, decide whether the plaintiffs suffered any constitutional injury at the hands of the prosecutorial defendants.

County also cited Haynesworth v. Miller, supra, 820 F.2d 1245 as support for its argument.   That decision, however, undermines County's position.   In Haynesworth the plaintiff's Monell claims were founded on an alleged District of Columbia policy of retaliatory prosecution.   The complaint alleged that defendant Miller established and implemented policies for the Law Enforcement Section of the District of Columbia's Corporation Counsel's Office and that Miller pursued a policy of retaliatory prosecution.   All claims were dismissed before trial.   The Court of Appeals for the District of Columbia Circuit affirmed Miller's dismissal on the grounds of absolute immunity but reversed as to the District.   The court stated that the allegations, if proven, “could supply an adequate foundation for attribution of Miller's conduct to the District.”  (820 F.2d at p. 1274.)   Evidence that the District had issued a policy directive prohibiting retaliatory prosecution, while relevant, was insufficient to support dismissal of the Monell claims without trial.  “[T]he question of municipal responsibility for unconstitutional official actions is one of fact so long as the plaintiff sets forth a ‘plausible’ basis for the assertion of liability.”  (Ibid.)

Here, the plaintiffs presented evidence from which a reasonable trier of fact could find coercive and threatening conduct on the part of members of the district attorney's office.   The alleged conduct exceeded the clearly established legal norms for preparing witnesses for trial.  (See, e.g., Pen.Code, § 137, subd. (b).)  County is not entitled to summary judgment unless it established that the conduct did not result from a policy or custom to procure false statements and/or testimony and/or that County did not have a deliberate indifference towards its obligation to supervise or train the employees of the district attorney's office adequately.   County did not do so.   Instead, it merely denied the plaintiffs' allegations.   It produced no evidence establishing that County policies did not promote the unlawful conduct in question, or that the policies of the district attorney's office did not constitute official county policy.

Triable issues of material fact bearing on the plaintiffs' Monell claim (e.g., whether Jagels was a county policymaker for section 1983 purposes, whether any of the alleged prosecutorial conduct resulted from a county policy or custom, whether the plaintiffs suffered any constitutional injury from that conduct) remain.   Accordingly, summary judgment as to County must be reversed.

2. PRETRIAL AND TRIAL ISSUES **

DISPOSITION

The judgment in favor of County of Kern is reversed.   In all other respects the judgment is affirmed.   Plaintiffs shall recover their costs on appeal from defendant County of Kern.

FOOTNOTES

1.   Although County denominated its motion as one for summary judgment, and the court's order likewise referred to summary judgment, it is clear the motion related only to those allegations against County based on the alleged conduct of Vendrasco, Darling, and Jagels.   It did not reach the question of County's liability for alleged conduct of the other individual defendants.   Thus, the order was, in effect, for summary adjudication.  (See Code Civ. Proc., § 437c, subd. (f).)

2.   The appeal is taken on an abbreviated record which does not include a reporter's transcript of proceedings during trial.

3.   On appeal, plaintiffs claim Vendrasco's declaration does not satisfy the requirements of a sworn document.   However, the objection was not raised below and is thus waived.  (Code Civ. Proc., § 437c, subd. (d).)

4.   The exhibits were:  A-declaration of victim W.B.;   B-a portion of a deposition of Juliette Ward Ryan;  C-an interview report from the Department of Justice of deputy district attorney Susan Skabelund;  D-declaration of victim M.S.;   E-declaration of victim B.K.;   F-declaration of victim T.M.;   G-transcript of a tape-recorded interview made by Denver Dunn, private investigator, of victim B.K.E.;   H-transcript of tape-recorded interview made by Denver Dunn of victim B.K.;   I-declaration of victim A.B.;   J-transcript of tape-recorded interview of victim C.H., Mary Isbell, and Bob H. by investigator Tam Hodgson;  K-transcript of tape recorded interview of Bob H., Mary Isbell and C.H. by Tam Hodgson;  L-tape transcript of interview of C.H. by Tam Hodgson;  M-portion of a court transcript of C.H.;   N-plaintiff (unrelated case) David Duncan's demand for production of documents;  O-response to Duncan's demand for production of documents;  P-partial, unidentified, trial transcript;  Q-partial, unidentified, trial transcript;  R-selected pages from the report of the Department of Justice on the Kern County child abuse investigation;  S-selected pages from the “Report on the Kern County Child Abuse Investigation” by the Office of the Attorney General;  T-memorandum from Gindes to Darling and Rutledge;  U-partial, unidentified court transcript.

5.   We also deny, pursuant to Evidence Code section 459, subdivision (d), plaintiffs' request for judicial notice of the memorandum of points and authorities in their petition for peremptory writ of mandate filed in this court November 16, 1993 (F020623).

6.   The Myers court did not specifically rule on whether the destruction of evidence is entitled to absolute immunity, concluding on the record before it that one of the two destroyed items was insignificant and the other had no connection with the prosecutor.  (810 F.2d at pp. 1447–1448.)

7.   When the complaint in Haynesworth was filed, section 1983 did not provide redress for acts committed under color of District of Columbia law.   Thus, the plaintiffs asserted causes based directly on the Constitution, alleging violations of their First, Fourth and Fifth Amendment rights.  (See Bivens v. Six Unknown Fed. Narcotics Agents (1971) 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619.)   The Haynesworth court, nevertheless, relied on section 1983 case authority, believing that “the implied constitutional right to sue should mirror the express statutory cause of action to the fullest extent possible.”  (820 F.2d at p. 1248, fn. 1.)

8.   The Second Circuit Court of Appeals has recently acknowledged that Whelehan v. County of Monroe, supra, 558 F.Supp. 1093 has been effectively overruled.  (Warner v. Orange County Dept. of Probation (2d Cir.1996) 95 F.3d 202, 209, fn. 5;  Pinaud v. County of Suffolk (2d Cir.1995) 52 F.3d 1139, 1153.)This court has previously recognized that a municipality does not enjoy derivative immunity in section 1983 cases.  (See Heffington v. County of Stanislaus (1983) 143 Cal.App.3d 838, 844, fn. 3, 192 Cal.Rptr. 202.)   Other California cases holding to the contrary cannot be squared with the United States Supreme Court's pronouncement in Leatherman v. Tarrant County Narcotics Unit, supra, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517.  (See Jenkins v. County of Orange (1989) 212 Cal.App.3d 278, 287–288, 260 Cal.Rptr. 645;  Gensburg v. Miller, supra, 31 Cal.App.4th at p. 525, 37 Cal.Rptr.2d 97.)

9.   The municipal defendant in Walker was the City of New York, apparently composed of two or more constituent counties.   The district attorney whose training and supervision were under attack represented Kings County.   We do not see this factual oddity as having any significance here.   In fact, it appears the city had even less authority over the district attorney than did the county in Baez v. Hennessy, supra.   Nevertheless, the city was held responsible for the district attorney's conduct.

10.   The attributes described by the court were:  the geographic extent of the district attorney's authority is created by specific state statute for each district, some of which include more than one county;  the Governor appoints an interim successor to fill a vacancy in the office;  the district attorney's bond runs to the state's Governor;  a state administrative body exists to discipline and assist district attorneys;  district attorneys are required by statute to make reports to the state Attorney General upon request;  and, the office of district attorney is created by the state Constitution.  (Crane v. State of Tex., supra, 766 F.2d at p. 194.)

11.   At oral argument County expressly represented that the summary judgment was granted on the basis of immunity.   Nothing in the two reported decisions in Heller supports that representation.  (See City of Los Angeles v. Heller, supra, 475 U.S. at p. 797, 106 S.Ct. at p. 1572;  Heller v. Bushey (9th Cir.1985) 759 F.2d 1371.)

FOOTNOTE.   See footnote *, ante.

THAXTER, Associate Justice.

ARDAIZ, P.J., and BUCKLEY, J., concur.

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