Clark v. County Of Tulare, CASE NO. CV-F-09-2106 LJO JLT

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Decision Date17 November 2010
Docket NumberCASE NO. CV-F-09-2106 LJO JLT




Dated: November 17, 2010


By notice filed on September 27, 2010, Defendants County of Tulare ("County") and Bill Wittman ("Wittman"), individually and in his official capacity as Tulare County Sheriff, move for summary judgment or in the alternative, summary adjudication against plaintiff Michael Clark. Plaintiff filed an opposition on October 18, 2010. Defendants filed a reply brief on October 27, 2010. The Court then asked for supplemental briefing on an evidentiary issue. Plaintiff filed his supplemental brief on November 1, 2010 and defendants filed their brief on November 12, 2010. Pursuant to Local Rule 230(g), this motion was submitted on the pleadings without oral argument, and the hearing was VACATED. Having considered the moving, opposition and reply papers, and the supplemental briefing, as well as the Court's file, the Court issues the following order.


This action alleges claims related to defamation arising from a police investigation of a shooting. Plaintiff is employed as a police officer in the City of Woodlake. As part of his duties he is the range

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master for the police training shooting range. In early 2009, the Tulare County Sheriff's Department investigated the shooting of Mr. Leland Perryman. At the time of Mr. Perryman's shooting, several Officers from the City of Woodlake were practice shooting their firearms at the range, about a mile from where Mr. Perryman was shot. Plaintiff was on duty as the range master at the time of the training but was not discharging a firearm when Mr. Perryman was shot. Plaintiff was responsible for the set up of targets and for tracking the officers who participated in the exercise or who shot at the range. Behind the range is a residential area, located within the County of Tulare. Leland Perryman, with his wife, was walking in an orchard behind his house when he was hit by a bullet.

The Tulare County Sheriff's Office ("TCSO") began an investigation of the shooting, as did the City of Woodlake Police Department. Defendant Bill Wittman is the Sheriff for the County of Tulare. The TCSO completed a lengthy investigative report about the incident, which contained some personal and confidential information about plaintiff. For instance, the report lists the plaintiff's name, employer, date of birth, age, race, sex, height, weight, hair and eye color, date of birth, home address, driver's license number, home and cellular telephone number. Plaintiff alleges the report also falsely attributed fault for Mr. Perryman's shooting on Plaintiff, claiming that some of the targets had been placed on the wings of the range in a place that was inherently unsafe. The Tulare County District Attorney determined that no one should be prosecuted for the accidental shooting.

After the report was submitted to the Tulare County District Attorney's Office, the Visalia Times Delta published the report on its website, including plaintiff's and other individuals' personal information. Plaintiff alleges that the TCSO leaked the report to various news agencies which published Plaintiff's private information. This leak of the report and the publication are the basis of plaintiff's suit. Plaintiff alleges that there is animosity between the Chief of Police for the City of Woodlake, Chief Zapalac, and the Sheriff of the County of Tulare, Bill Wittman, as they were opposing candidates in the 2010 County of Tulare Sheriff election.

Plaintiff alleges the following causes of action:

1. Count One: First Amendment, Sixth Amendment and Fourteenth Amendment;

2. Count Two-Intentional Infliction of Emotional Distress;

3. Count Three-Negligence Infliction of Emotional Distress;

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4. Count Four-Defamation;

5. Count Five-Invasion of Privacy;

6. Count Six-Violations of Gov. Code §6250;

7. Count Seven-Violations of Civ.Code §1798;

8. Count Eight-Violations of Penal Code §964.


A. Summary Judgment/Adjudication Standards

1. Burdens of Proof on Summary Judgment

F.R.Civ.P. 56(b) permits a "party against whom relief is sought" to seek "summary judgment on all or part of the claim." Summary judgment/adjudication is appropriate when there exists no genuine issue as to any material fact and the moving party is entitled to judgment/adjudication as a matter of law. F.R.Civ.P. 56(c); Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). The purpose of summary judgment/adjudication is to "pierce the pleadings and assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec., 475 U.S. at 586, n. 11, 106 S.Ct. 1348; International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir. 1985).

On summary judgment/adjudication, a court must decide whether there is a "genuine issue as to any material fact," not weigh the evidence or determine the truth of contested matters. F.R.Civ.P. 56 (c); Covey v. Hollydale Mobilehome Estates, 116 F.3d 830, 834 (9th Cir. 1997); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598 (1970).

To carry its burden of production on summary judgment/adjudication, a moving party "must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). "[T]o carry its ultimate burden of persuasion on the motion, the moving party must persuade the court that there is no genuine issue of material fact." Nissan Fire, 210 F.3d at 1102. "As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry

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of summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

"If a moving party fails to carry its initial burden of production, the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial." Nissan Fire, 210 F.3d at 1102-1103; see Adickes, 398 U.S. at 160, 90 S.Ct. 1598. "If, however, a moving party carries its burden of production, the nonmoving party must produce evidence to support its claim or defense." Nissan Fire, 210 F.3d at 1103. "If the nonmoving party fails to produce enough evidence to create a genuine issue of material fact, the moving party wins the motion for summary judgment." Nissan Fire, 210 F.3d at 1103; see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548 (1986) ("Rule 56( c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make the showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.")

Defendant's main argument for challenging each of plaintiff's causes of action is that plaintiff lacks evidence. A defense motion for summary judgment may be based on the ground that plaintiff has no admissible evidence to support one or more essential elements of the claim. "It is not enough to move for summary judgment... with a conclusory assertion that the (opposing party) has no evidence to prove his case." Celotex Corp. v. Catrett, 477 U.S. at 326, 106 S.Ct. at 2555 (J. White, concur. opn.) (parentheses added). "(T)he Celotex 'showing' can be made by pointing out through argument the absence of evidence to support plaintiff's claim." Devereaux v. Abbey 263 F3d 1070, 1076 (9th Cir. 2001) (en banc). Thus, in this Circuit, argument that the non-moving party lacks evidence is sufficient to carry the moving party's burden of proof.

2. Admissibility of Evidence

Defendants argue that the primary evidence plaintiff relies upon to oppose the motion is inadmissible hearsay. In plaintiff's opposition, he submitted the declaration of his attorney, Mr. Magwood, who testified as to two areas: (1) identifying potential witnesses and what the anticipated testimony from these witnesses will show, and (2) attaching and authenticating documentary evidence,

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such as email correspondence, letters, and memoranda produced by defendants in discovery.1 (Doc. 243, Magwood Decl.) Mr. Magwood's declaration states that his office conducted an investigation with witnesses. He then recounts what the witnesses are expected to testify to at trial. As to the documents, Mr. Magwood's declaration states that certain documents were produced by defendants, and "true and correct copies" are attached to his declaration.

Defendants objected to the admissibility of...

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