GRANT ROBICHEAUX CERISSA RILEY v. COUNTY OF ORANGE ANTHONY RACKAUCKAS SUSAN SCHROEDER KANG JENNIFER KEARNS DOES 10 (2024)

ORDER RE: COUNTY OF ORANGE MOTION TO DISMISS SECOND AND THIRD CAUSES OF ACTION [11] AND DEFENDANTS' MOTION TO DISMISS [20]

I. BACKGROUND

This is a civil matter regarding the now-concluded criminal prosecution of Plaintiffs Grant Robicheaux and Cerissa Riley, in State of California v. Robicheaux and Riley, OCSC Case No. 18HF1291. (“Complaint,” Docket No. 1 ¶ 12). Plaintiffs allege that the events that transpired from September 11, 2018, until July 7, 2023, amount to malicious prosecution. (Compl. ¶¶ 12-14). In brief, Plaintiffs contend that former Orange County District Attorney, Anthony Rackauckas “sought out a high profile salacious criminal prosecution with which to garner media attention and boost his reelection prospects,” despite a “total lack of probable cause.” (Compl. ¶ 1). Plaintiffs have filed suit against Rackauckas, his Chief of Staff Susan Kang, lead investigator Jennifer Kearns and the County of Orange. (Compl. ¶¶ 6-9). The Court now reviews the Motions to Dismiss brought by the Defendant County of Orange (“Defendant County”) and Defendants Rackauckas, Kang, and Kearns (collectively, the “Individual Defendants”).

II. DISCUSSION

A. Legal Standard

Under Rule 12(b)(6), a defendant may move to dismiss for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). A complaint may be dismissed for failure to state a claim for one of two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). The court must construe the complaint in the light most favorable to the plaintiff, accept all allegations of material fact as true, and draw all reasonable inferences from well-pleaded factual allegations. Gompper v. VISX, Inc., 298 F.3d 893, 896 (9th Cir. 2002). The court is not required to accept as true legal conclusions couched as factual allegations. See Iqbal, 556 U.S. at 678. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

In deciding a Rule 12(b)(6) motion, a court “may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice.” Swartz, 476 F.3d at 763; see also Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006) (indicating that a court may consider a document “on which the complaint ‘necessarily relies’ if: (1) the complaint refers to the document; (2) the document is central to the plaintiff's claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion”). Under Rule 201 of the Federal Rules of Evidence, the court can judicially notice “[o]fficial acts of the legislative, executive, and judicial departments of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” Fed. R. Evid. 201.

B. The Court Grants the Defendant County's Motion to Dismiss Second and Third Causes of Action

Plaintiffs' second cause of action is a Monell claim against the Defendant County. (Compl. ¶¶ 27-35). The third cause of action is levied against all Defendants and alleges malicious prosecution under state law. (Compl. ¶¶ 36-44). After reviewing Defendant County's Motion to Dismiss the Second and Third Causes of Action against it (Docket No. 11), Plaintiffs' Opposition (Docket No. 17), and Defendant County's Reply (Docket No. 19), the Court hereby GRANTS the motion to dismiss with prejudice for the reasons stated below.

1. A Monell Claim Is Unavailable Where the Alleged Final Policymaker Acted with State, Rather than County, Authority

A Monell claim is an action under Title 42, United States Code, Section 1983 against a government entity where a policy, practice or custom has caused an alleged violation of constitutional rights. Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011). “In order to establish liability for governmental entities under Monell, a plaintiff must prove ‘(1) that [the plaintiff] possessed a constitutional right of which [s]he was deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff's constitutional right; and, (4) that the policy is the moving force behind the constitutional violation.’ ” Id. (quoting Plumeau v. Sch. Dist. No. 40 Cnty. of Yamhill, 130 F.3d 432, 438 (9th Cir.1997)). “In particular, municipalities may be liable under § 1983 for constitutional injuries pursuant to (1) an official policy; (2) a pervasive practice or custom; (3) a failure to train, supervise, or discipline; or (4) a decision or act by a final policymaker.” Horton by Horton v. City of Santa Maria, 915 F.3d 592, 602–03 (9th Cir. 2019).

For a Monell claim to succeed based on the decisions or actions taken by a final policymaker, the Plaintiff must establish that the official in question was the “policymaker for the local governing body for the purposes of the particular act.” Weiner v. San Diego Cnty., 210 F.3d 1025, 1028 (9th Cir. 2000) (quoting McMillian v. Monroe Cnty., 250 U.S. 781, 785 (1997)). Whether a particular official is properly considered a policymaker of the governing body for the purpose of a Monell claim is “governed by state law.” Ellins v. City of Sierra Madre, 710 F.3d 1049, 1066 (9th Cir. 2013). Rather than a question of fact, it is a legal question that rests on how a state has chosen to structure its local government. City of St. Louis v. Praprotnik, 485 U.S. 112, 124 (1988) (emphasizing that “States have an extremely wide latitude in determining the form that local government takes,” and that the “identification of policymaking officials is not a question of federal law.”). Case law that encompasses such analysis demonstrates that, in California, a county district attorney acts as a state official, rather than a county official, when prosecuting defendants. Weiner, 210 F.3d at 1031; see also Pitts v. Cnty. Of Kern, 949 P.2d 920, 934, 937 (Cal. 1998) (concluding that California district attorneys act on behalf of the State in prosecuting, preparing to prosecute, training staff, and developing policy, due the structure of California state law).

Here, Plaintiffs seek to hold Defendant County liable for a decision or act by an alleged final policymaker within the meaning of Monell. Plaintiffs' Monell claim against Defendant County is based on the actions of Orange County District Attorney Rackauckas, as well as his Chief of Staff Susan Schroeder Kang and investigator Jennifer Kearns. (Compl. ¶ 28). Plaintiffs' claim is rooted in the logic that Rackauckas made the “final decision” to prosecute, that he had “final policymaking authority from the Defendant County,” and that he was the “final policy and decision maker for the OCDA[.]” (Compl. ¶¶ 28-31). Absent such final decision-making authority on behalf of the County, the claim against the Defendant County fails.

Though Plaintiffs are correct that district attorneys may be county actors in some instances, the Complaint references Rackauckas' “final decision to initiate the criminal prosecution of Plaintiffs and [direction of] the other Defendants to take the actions alleged herein.” (Compl. ¶ 28). As noted, the decision to prosecute and the overseeing of such prosecution is action on behalf of the State of California, rather than the County of Orange. See Pitts, 949 P.2d at 937. Merely reciting that the Defendants were “not acting in their role as prosecutors, but in their role as a political candidate or political campaign staff member” is unpersuasive. (Compl. ¶ 41). Plaintiffs do not point to case law that justifies the conclusion that prosecutors' actions while campaigning for re-election are separate and apart from their actions as prosecutors. Nor do they point to case law finding that such actions would be considered official County policies; if Rackauckas, were, in fact, acting as a political candidate, rather than a prosecutor, then Plaintiffs have failed to demonstrate how the actions of a political candidate can be considered official county policies within the meaning of Monell.

Further, it is important to note that Defendant County cannot be held liable merely because Rackauckas, Kang, and Kearns are employees of the County of Orange. “[U]nder § 1983, local governments are responsible only for ‘their own illegal acts.’ They are not vicariously liable under § 1983 for their employees' actions.’ ” Connick v. Thompson, 563 U.S. 51, 60 (2011) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986)); see also Horton by Horton, 915 F.3d at 603 (recognizing that a plaintiff cannot sue a municipality under a respondeat superior theory). As such, if Plaintiffs cannot demonstrate that Rackauckas' actions are official County policies within the meaning of Monell, the Defendant County cannot be liable.

Finally, the Court notes Defendants' arguments regarding the futility of allowing Plaintiffs leave to amend the Complaint. (Reply to Plaintiffs' Opposition to Motion to Dismiss, Docket No. 19 at 5). Plaintiffs requested in their Opposition to the Motion to Dismiss that they be given leave to amend the Complaint to add the State of California as a defendant. (Docket No. 17 at 8). As noted by Defendant County, “states and state officials acting in their official capacities cannot be sued for damages under Section 1983.” Goldstein v. City of Long Beach, 715 F.3d 750, 753 (9th Cir. 2013) (citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989)). Moreover, the Eleventh Amendment to the United States Constitution would bar the addition of the State of California as a Defendant. As such, any request to amend the complaint to add the State of California as a defendant would be futile within the meaning of Federal Rule of Civil Procedure 12(b)(6).

Accordingly, the Court GRANTS with prejudice the Motion to Dismiss with respect to the second cause of action against the Defendant County.

2. As California Government Code Section 821.6 Immunizes Named Defendants from Claims of Malicious Prosecution, County Is Also Immune

California Government Code Section 821.6 (“Section 821.6”) provides immunity for public employees for “injury caused by instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” Cal Gov't Code § 821.6. Under California Government Code section 815.2(b), “a public entity is not liable for an injury resulting from an act or omission of an employee of [the County] where the employee is immune from liability.” Cal. Gov't Code § 815.2(b).

As further explained below (infra Part II(C)(2)), the Individual Defendants – Rackauckas, Kang and Kearns – are immune from liability for harm resulting from actions taken within the scope of their employment under Section 821.6. Significantly, this holds true even if such actions were taken with malice and without 6 probable cause.¹ According to case law, even at its narrowest reading, Section 821.6 specifically confers immunity to public employees against malicious prosecution claims. Leon v. County of Riverside, 530 P.3d 1093, 1098 (Cal. 2023); see also Ogborn v. City of Lancaster, 101 Cal.App.4th 448, 463 (2002) (holding that Section 821.6 is “intended to prevent malicious prosecution actions against government officials[.]”). The Court in Leon made clear that, based on the legislative history of Section 821.6, the immunity extends to any behavior that falls within the common law meaning of malicious prosecution. Leon, 530 P.3d at 1098-99 (emphasizing that Section 821.6 focuses on the “ ‘nature of the alleged tort.’ ”). Malicious prosecution is defined as “ ‘improperly instituting or maintaining’ a legal action.” Id. (quoting Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc., 42 Cal.3d 1157, 1169 (1986)). Rackauckas' alleged behavior noted in the Complaint falls squarely within the bounds of ‘instituting or maintaining a legal action.’ (Compl. ¶¶ 28-31). Specifically, Rackauckas' “final decision to initiate the criminal prosecution of Plaintiffs and [direction of] the other Defendants to take the actions alleged herein[,]” (Compl. ¶ 28) cannot be considered anything other than instituting and maintaining a legal action. Again, Plaintiffs' contentions that the Individual Defendants were “not acting in their role as prosecutors, but in their role as a political candidate or political campaign staff member” is unconvincing and unsupported by fact or case law. (Compl. ¶ 41).

As Plaintiffs' claim of malicious prosecution against Defendant County requires that the actions of the County employees be actionable, this cause of action against Defendant County fails. Cal. Gov. Code § 815.2(b). Accordingly, the Court GRANTS the Motion to Dismiss with prejudice with respect to the third cause of action against the Defendant County.

C. The Court Grants the Individual Defendants' Motion to Dismiss First and Third Causes of Action

Plaintiffs' first cause of action is a Title 42, United States Code, Section 1983 claim for malicious prosecution. (Compl. ¶¶ 19-26). The third cause of action is levied against all Defendants and alleges malicious prosecution under state law. (Compl. ¶¶ 36-44). After reviewing Individual Defendants' Motion to Dismiss with respect to the first and third causes of action (Docket No. 20), Defendants' Request for Judicial Notice (Docket No. 23), Plaintiffs' Opposition (Docket No. 25), and Defendants' Reply (Docket No. 27), the Court hereby GRANTS the motion to dismiss with prejudice for the reasons stated below.

1. Individual Defendants Are Protected by Eleventh Amendment and Prosecutorial Immunity, Barring the Federal Claim

The Eleventh Amendment of the U.S. Constitution provides state agencies and state actors immunity from suit in federal court for actions taken in their official capacity. Greenlaw v. County of Santa Clara, 125 Fed.Appx. 809, 810 (9th Cir. 2005); Taylor v. Garcetti, 55 Fed.Appx. 853, 854 (9th Cir. 2003); see also Pitts, 949 P.2d at 926; see also Edelman v. Jordan, 415 U.S. 651, 662-63 (1974).

As discussed above, a county district attorney acts as a state official when prosecuting defendants and overseeing employees in such efforts. See Weiner, 210 F.3d at 1028; see also, Pitts, 949 P.2d at 937 (finding that in California, “the district attorney acts on behalf of the state when training personnel for and when developing policy regarding the preparation for prosecution and prosecution of criminal violations of state law.”).

Plaintiffs contend that, because the Individual Defendants were allegedly not “acting in their role as a prosecutor[,]” they are not entitled to Eleventh Amendment Immunity (Plaintiffs' Opposition to Defendants' Motion to Dismiss, Docket No. 25 at 10). Merely stating that Defendants were not acting in their official capacity because they allegedly “acted primarily․to improperly influence the 2018 Orange County District Attorney election” is unsupported by fact or law. (Id.). The Complaint provides no evidence of this; the fact that Rackauckas evidently acknowledged that “publicity would be helpful to his reelection” does not prove that his actions in prosecuting Plaintiffs were primarily in service of his reelection campaign, rather than in his role as District Attorney. (Id.). Rather, it is simply a fact that publicity is often helpful in a reelection campaign. Plaintiffs' contentions are undercut by the fact that the very issuance of a search and arrest warrant for Plaintiffs implies the existence of probable cause to do so.² Accordingly, arguments that Defendants were not acting in their official capacity are unconvincing. Further, Plaintiffs cite to no case law providing that prosecutors' actions during reelection cycles are separate and apart from their role as prosecutor. As such, it is the Court's conclusion that Eleventh Amendment immunity applies to the Individual Defendants, barring this federal claim for malicious prosecution.

Additionally, given that Defendants acted in their official capacities as prosecutors, they also enjoy prosecutorial immunity. “Prosecutors are extended absolute immunity from damages when performing activities closely associated with the judicial process.” Romano v. Bible, 169 F.3d 1182, 1186 (9th Cir. 1999) (citing to Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976)). Where the Supreme Court adopted a “ ‘functional approach’ ” to determining whether particular actions of government officials enjoy absolute or qualified immunity, courts look to the “ ‘nature of the function performed[.]” Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993) (citing to Forrester v. White, 484 U.S. 219, 229 (1988)). Plaintiffs' allegations refer to Defendants' “caus[ing] a criminal proceeding to be brought against Plaintiffs, caus[ing] Plaintiffs to be arrested and prosecuted, [and] caus[ing] the continuation of the prosecution of Plaintiffs.” (Compl. ¶ 21). The nature of these functions is entirely prosecutorial. As such, Defendants enjoy absolute immunity, and the claim fails.

Accordingly, the Court hereby GRANTS with prejudice the Individual Defendants' Motion to Dismiss with respect to the first cause of action.

2. Individual Defendants Are Immunized from State Law Malicious Prosecution Claims by California Government Code Section 821.6

As noted above, California Government Code Section 821.6 (“Section 821.6”) immunizes public employees “for injury caused by instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” Cal Gov't Code § 821.6. In practice, this means that prosecutors enjoy immunity from suits for malicious prosecution for actions taken in their prosecutorial role. Public policy explains why this is so. “ ‘Criminal law does not enforce itself. It demands the assistance of valid evidence and fearless officials to put it in execution. Because of their tendency to obstruct the administration of justice, it is the policy of the law to discourage actions for malicious prosecution.’ ” White v. Towers, 235 P.2d 209, 211 (Cal. 1951) (finding that allowing malicious prosecution claims against public employees connected with judicial processes would create an “unbearable handicap and would redound to the detriment of the body politic.”). Malicious prosecution is defined as “ ‘improperly instituting or maintaining’ a legal action.” Leon, 530 P.3d at 1098-99 (quoting Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc., 42 Cal.3d 1157, 1169 (1986)). The Complaint alleges that the Individual Defendants “caused a criminal proceeding to be brought against Plaintiffs, caused Plaintiffs to be arrested and prosecuted, or caused the continuation of the prosecution of Plaintiffs.” (Compl. ¶ 21). These factual contentions about Defendants' behavior neatly align with the definition of malicious prosecution. Given the Individual Defendants' liability from such suits, the claim against them fails.

Plaintiffs allege that “no reasonable prosecutor would have believed that there were grounds for causing Plaintiffs to be arrested and prosecuted.” (Compl. ¶ 22). This is both legally irrelevant and factually inaccurate. First, as noted above, Section 821.6 provides immunity, even if it can be demonstrated that the public employee's actions were malicious in nature or lacking in probable cause. As such, this contention has no bearing on the legal analysis. Furthermore, it is factually incorrect, as the issuance of both a search and arrest warrant indicates that probable cause did, indeed, exist.

Plaintiffs also attempt to argue that in making statements to the press regarding the prosecution of Plaintiffs, Individual Defendants were not acting as prosecutors. (Opp. to Individual Defendants' Mot. to Dismiss at 10-11). Plaintiffs allege that statements made at a 2018 press conference were “false and misleading,” even defamatory, and, accordingly, Rackauckas and his “henchmen” were political actors not acting within the scope of employment. (Id. at 11). Defendants correctly note that statements publicized by prosecutors regarding prosecutions are within the scope of employment under Section 821.6. See, e.g. Pagtakhan v. Alexander, 999 F.Supp.2d 1151, 1160 (N.D. Cal. 2013) (Section 821.6 “covers a wide range of duties performed within the scope of employment, including giving press releases. [Citation] ․ Because Section 821.6 is interpreted to cover interactions with the press that occur within the scope of employment, the D.A. defendants have immunity from the claims against them.”); see also Cappuccio, Inc. v. Harmon, 208 Cal.App.3d 1496, 1500 (9th Cir. 1989) (finding that even allegedly libelous statements made following the conclusion of prosecution were considered to covered by Section 821.6); see also Ingram v. Flippo, 74 Cal.App.4th 1280, 1292-93 (9th Cir. 1999) (noting that “if the making and publication of the statements were part of the [prosecution] process, they were protected by the immunity in Section 821.6”). Given that the statements made to the press were in relation to the ongoing prosecution of Plaintiffs, they were within the scope of employment and covered by Section 821.6.

The Court also agrees with Defendants' additional argument regarding the failure to allege a statutory basis for the state law claim for malicious prosecution. (Defendants' Motion to Dismiss, Docket No. 20 at 17). Governmental tort liability in California is statutory in nature, requiring that a statute “declares” public entities' liability. See, e.g., Cochran v. Herzog Engraving Co., 155 Cal.App.3d 405, 409 (1984) (highlighting that “governmental liability is limited to exceptions specifically set forth by statute.”). As such, Plaintiffs must specifically plead an authorizing statute or existence of a statutory duty if they wish to bring a state law tort claim against these government actors. Searcy v. Hemet Unified School Dist., 177 Cal.App.3d 792, 802 (1986). The failure to plead a statutory basis for suing the Individual Defendants, then, likewise, results in the claim's failure.

In sum, the Defendants are immune from a state law malicious prosecution claim under Section 821.6. Even if they were not, Plaintiffs fail to allege a statutory basis for this tort claim against public actors. Accordingly, the Court hereby GRANTS with prejudice the Individual Defendants' Motion to Dismiss with respect to the third cause of action.

III. CONCLUSION

For foregoing reasons, the Court hereby GRANTS Defendant County of Orange's Motion to Dismiss the Second and Third Causes of Action with prejudice and GRANTS the Individual Defendants' Motion to Dismiss the First and Third Causes of Action with prejudice.

IT IS SO ORDERED.

FOOTNOTES

1.   As discussed further in Part II(C)(2), the Court takes Judicial Notice of the fact that there was, in fact, probable cause, as per the issuance of both a search and arrest warrant, which were foundational for the commencement of the case (Docket No. 23 at 3); however, even absent such a finding, the Defendants would still not be liable given the immunity offered by Section 821.6.

2.   In ruling on a motion to dismiss, the court can consider material that is subject to judicial notice under Rule 201 of the Federal Rules of Evidence. Fed.R.Evid. 201. Under Rule 201, the court can judicially notice “[o]fficial acts of the legislative, executive, and judicial departments of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” Fed.R.Evid. 201. Upon Defendants' motion, the Court takes Judicial Notice of the fact that an independent magistrate issued both a search and arrest warrant, which were foundational for the commencement of the case (Docket No. 23 at 3). It directly follows from those warrants that a superior court judge found probable cause.

HON. WESLEY L. HSU UNITED STATES DISTRICT JUDGE