Peinado v. City of S.F.
| Decision Date | 26 November 2014 |
| Docket Number | No. C-11-1799 EMC,C-11-1799 EMC |
| Court | U.S. District Court — Northern District of California |
| Parties | RENE PEINADO, Plaintiff, v. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants. |
Plaintiff Rene Peinado filed an amended complaint in this action on March 1, 2013, against Defendants the City and County of San Francisco (the "City") and Elias Georgopoulos asserting two causes of action under 42 U.S.C. § 1983 for (1) malicious prosecution and (2) a Monell claim against the City. First Amended Complaint ("FAC"), Docket No. 37. Defendants have moved for summary judgment on all of Plaintiff's claim on a number of grounds. Plaintiff does not oppose dismissal of her second cause of action (the Monell claim against the City). Accordingly, this claim will be DISMISSED. In addition, for the following reasons, the Court GRANTS Defendants' motion for summary judgment as to Plaintiff's malicious prosecution claim against Georgopolous.
On March 23, 2005, Plaintiff had an encounter with Georgopoulos, a parking control officer for the San Francisco Municipal Transportation Agency, in front of 650 California Street. FAC ¶ 10, 5. According to Georgopoulos, he noticed a black Range Rover parked on a hill with its wheelsstraight. Preliminary Hearing Transcript ( ) at 4:10-13 (Docket No. 94-1). He printed out a citation for the violation and when he approached the vehicle, Plaintiff had returned to the vehicle and gotten inside. Id. at 6:1-4. Georgopolous claims that, at this point, Plaintiff Id. at 6:25-26. Georgopoulos claims he landed on the hood of the Range Rover "like the hood ornament" and then was thrown to the left. Id. at 7:27-28. He asserts that he told Plaintiff to stop, called it in on the emergency channel, and then jumped in his vehicle and followed Plaintiff. Id. at 8:18-28. According to Georgopolous, as he was following Plaintiff, Plaintiff ran red lights for several blocks. Id. at 9:18 - 10:9.
Plaintiff's account of the encounter differs greatly. He asserts that when he arrived at his Range Rover, Georgopolous "approached [his] vehicle and slammed his hand on the front of it," at which point Plaintiff "backed away from him, made a u-turn and drove away." Declaration of Rene Peinado ("Peinado Decl.") ¶ 3 (Docket No. 101). Plaintiff states he never made physical contact with Georgopolous and was not followed through the streets of San Francisco by Georgopolous (which, Plaintiff points out, would have been filled with lunchtime pedestrian and vehicle traffic). Id. ¶ 4. Plaintiff does admit that Id. Three days later, Plaintiff was arrested by the San Francisco Police Department and his Range Rover was impounded. Peinado Decl. ¶ 5.
Initially, Plaintiff was charged with misdemeanor hit and run and felony assault with a deadly weapon. Id. ¶ 6. A preliminary hearing was held on August 17, 2006. A number of witnesses testified, including Georgopolous and other individuals who had encountered Georgopolous and filed complaints against him. This testimony led Superior Court Judge Susan Breall to observe that Georgopolous is "not always calm, and he can at times be a hot head." Prelim. Hearing at 66:22-25. At the end of the preliminary hearing, the judge reduced the felony assault claim to a misdemeanor, noting that the medical records belied Georgopolous' claim that he had been struck - the court noted there were no signs of abrasions, fractures, dislocation, hematoma, scrapes, or other signs of trauma. Prelim. Hearing at 66-67; see also id. at 67:26-27 (). Ultimately, however, the court concluded that the case presented a "serious incident" and that it was a Id. at 68:1-2.
Plaintiff's criminal attorney was Lidia Stiglich (now Judge Stiglich).1 In her declaration, she states that Plaintiff "vociferously denied the allegations and maintained his innocence" and wanted the matter dismissed without any admission of guilt. Declaration of Lidia Stiglich ("Stiglich Decl.") ¶ 4 (Docket No. 99). At the same time, she notes that Plaintiff was concerned about the effect of the action on his security clearance (needed as part of his occupation) and a contested child custody situation. Id. Ms. Stiglich maintains that she had numerous "off the record" discussions with the state court judge presiding over Plaintiff's criminal case - Superior Court Judge Kevin McCarthy - and the district attorney in an attempt to have the action dismissed. Id. ¶ 5. Her efforts involved raising Georgopolous' questionable credibility as well as his history of threatening and violent conduct. Id. ¶¶ 6-7. She asserts that the district attorney refused to dismiss the action outright and, as a result, she focused on trying to persuade the judge to dismiss the action in the "interest of justice" pursuant to Cal. Penal Code § 1385. Id. ¶ 8. She asserts that Plaintiff and the district attorney never agreed to have the case dismissed. Id. ¶ 11.
On March 25, 2008, Plaintiff, Ms. Stiglich, and the district attorney appeared before Judge McCarthy. The following exchange occurred:
Transcript of Proceedings ("Crim. Trans.") at 2:9-19 (Docket No. 94-3). Ms. Stiglich then raised the issue of the form of any subsequent dismissal:
Ms. Stiglich: Your honor, with respect to this matter, the only other issue is that in light of his security clearance, we did have discussions about what code section at the end that it would be dismissed under if he successfully completes and that's open.
Id. at 3:1-5. Ms. Stiglich did not request Judge McCarthy entertain a dismissal under Penal Code § 1385 for insufficient evidence. Regarding the original counts, Judge McCarthy asked the district attorney if he wanted "count one and two trailing successful diversion," to which the district attorney replied, "correct." Id. at 3:10-14. Judge McCarthy did not comment on the strength of the prosecutor's evidence.
The parties appeared before the court again on April 22, 2008. At this proceeding, Ms. Stiglich confirmed that Plaintiff was going to "go to pretrial diversion just for purposes of monitoring community service." Id. at 4:5-6. Judge McCarthy similarly noted that it was "informal pretrial diversion," because Plaintiff was not eligible for formal diversion. Id. at 4:9, 11-12. However, both Ms. Stiglich and the court noted that pretrial diversion would be monitoring Plaintiff for a total of 25 hours of community service. Id.
According to Pretrial Diversion records, Plaintiff advised Pretrial Diversion on May 13, 2008 that he was "not sure if he will take this program." Declaration of Allison McCovey ("McCovey Decl."), Ex. A, at 2 (Docket No. 95-1). On July 25, 2008, Pretrial Diversion determined that restitution in the amount of $30 was owing to Georgopolous, and notified Plaintiff. Id. at 3. On August 4, 2008, Plaintiff came into the office and stated he was aware of both the Pretrial Diversion user fee and restitution amount and would mail in a payment. Id. The $500 user fee was paid by Plaintiff on December 12, 2008, and Pretrial Diversion moved $30 of that fee over to Plaintiff's owing restitution. Id. Plaintiff was notified of this. Id. During a December 15, 2008 proceeding in which Plaintiff's appearance was waived, the clerk of the court reported that "[r]estitution has been paid." Crim. Trans., at 6:5.
On February 23, 2009, Pretrial Diversion records reflect that Plaintiff completed 26 hours of community service for Golden Gate Parks Conservancy between January 31, 2009 and February 15,2009. McCovey Decl. at 3. Pretrial Diversion credited Plaintiff as having completed his community service on April 3, 2009. Id.
A final hearing was held on April 14, 2009, with attorney Mike Hinckley representing Plaintiff. Judge Perker Meeks, rather than Judge McCarthy, presided over this hearing. See Docket No. 94-5. During the hearing, Mr. Hinckley asserted that the case should be dismissed "1385 for insufficient evidence." April 14, 2009 Transcript at 2:16 (Docket No. 94-5). This is the first reference in the record in which dismissal for insufficient evidence was raised by anyone. Mr. Hinckley then stated:
Mr. Hinckley: . . . . If you look at the report, it doesn't have a recommendation disposition because it was a negotiated disposition between the defense and Judge McCarthy. And the agreement would be - pretrial was to monitor the - what was to occur, and it was to be dismissed 13853 specifically.
Id. at 2:20-25. The district attorney present at the time (who was different than the one present in the earlier proceedings), agreed that the matter was to be dismissed in light of the community service and restitution, but disagreed with the form of dismissal, arguing that the dismissal should be "1001.7" as a diversion case.4 Id. at 3:1-4. The parties continued to dispute the form of dismissal, with Mr. Hinckley maintaining that Judge McCarthy and the defense had negotiated a 1385 dismissal for insufficient evidence if community service was...
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