2011-00116057-CU-CR

Lucas M Serafine vs. CDCR

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Allin, Jon S.

*** If oral argument is requested, counsel shall be prepared to discuss the
applicability of both the Perez-Torres v. State of California and Torres v. Dept. of Corrections & Rehabilitation decisions to the present case. ***

Defendants California Department of Corrections and Rehabilitation (“CDCR”) et al.’s
(collectively “Defendants”) motion for summary judgment is DENIED. Although
Defendants satisfied their initial burden of production under Code of Civil Procedure
§437c(p)(2) and shifted the burden to plaintiff, he carried his burden to produce
evidence sufficient to establish at least one triable issue of material fact and to
preclude judgment as a matter of law, particularly since the evidence offered in
opposition must be construed liberally while the evidence in support is construed
narrowly. (See, e.g., DiLoreto v. Bd. of Education (1999) 74 Cal.App.4th 267; Alvarez
v. State of California (1999) 75 Cal.App.4th 903.)

Plaintiff’s counsel is admonished for failing to comply with CRC Rule 3.1113(f) and for
failing to provide citations to California’s official reports, rather than secondary
reporters.

Plaintiff was convicted in October 2000 of violating Penal Code §288(a) in July 2000.
He was initially placed on probation but when he violated its terms, he was sentenced
to six years in prison. When released, he was placed on parole which had several
conditions. Plaintiff contends his parole terminated on 6/3/2010 but he was thereafter
falsely arrested by defendants for violating the terms of his parole and then returned to
state prison for 155 days before being released.

On 12/22/2011, plaintiff filed a complaint purporting to allege causes of action (“COA”)
for violation of civil rights under Title 42 U.S.C. §1983, violation of civil rights under
Civil Code §52.1, false arrest/imprisonment under §13 of Article I of the California
Constitution, false arrest/imprisonment under “common law,” intentional infliction of
emotional distress, negligent infliction of emotional distress, negligence and negligent
supervision/hiring/training/retention. The complaint also includes a prayer for punitive
st
damages. Plaintiff subsequently dismissed the 1 COA alleging a §1983 claim.

Defendants now seek summary judgment on the entire complaint based on the
immunity provided by Government Code §845.8 (erroneously cited in both the moving
and opposing papers as Penal Code §845.8) for parole decisions, even when
mistaken. Defendants argue that under Torres v. Dept. of Corrections & Rehabilitation
(2013 (Rev. denied)) 217 Cal.App.4th 844, the immunity afforded by §845.8 is broadly
construed and effectively bars all of plaintiff’s COA because each fundamentally arises
from the allegedly wrongful arrest, detention and (re-)incarceration of plaintiff. The
summary judgment motion is apparently based on the 724 Undisputed Material Facts
(“UMF”) contained in defendants’ separate statement (which essentially repeats
roughly 50 otherwise identical UMF presented for summary adjudication of the 15
separate issues identified in the Notice of Motion.)

Plaintiff opposes the motion arguing first that defendants are not entitled to summary
judgment because Government Code §845.8’s immunity is, consistent with Perez-
Torres v. State of California (2007) 42 Cal.4th 136, inapplicable and because there is a
triable issue of fact relating to whether defendants “knew or should have known”
plaintiff’s parole term had expired. As support for his position that summary judgment
must be denied, plaintiff contends several of Defendants’ UMF are “disputed” and also
offers 35 of his own Additional Material Facts (“AMF”).

The opposition papers also state at Page 2:12-15 that “Plaintiff is separately requesting the Court to re-open discovery and continue the hearing on this motion
based on new information that has come to Plaintiff during preparation for this motion”
and that “Plaintiff will also request leave to amend the complaint…” To the extent
plaintiff desires to re-open discovery, he should have promptly filed a noticed motion to
obtain such relief and since he has failed to do so, the Court declines to grant such
relief here without first giving notice to defendants pursuant to Code of Civil Procedure
§1005. Similarly, while Code of Civil Procedure §437c(h) permits a party opposing a
summary judgment/adjudication motion to obtain a continuance of the hearing date,
plaintiff here has failed to submit the required declaration establishing not only that
there likely exists evidence which would support an opposition to the present motion
but also that such discovery could not have reasonably been completed prior to the
opposition’s due date. Coupled with plaintiff’s failure request the continuance “as soon
as possible” (see, Weil & Brown, Civil Procedure Before Trial, Ch. 10:207.6), this Court
exercises its discretion and denies the continuance sought by plaintiff particularly since
trial is set to commence on 12/3/2013. (See, e.g., Cooksey v. Alexakis (2004) 123
Cal.App.4th 246, 251, 255-256; Combs v. Skyriver Communications, Inc. (2008) 159
Cal.App.4th 1242, 1270.) Finally, with respect to plaintiff’s desire to amend the
complaint, he must properly notice a motion pursuant to Code of Civil Procedure §473
(b) and comply with CRC Rule 3.1324 but even if he had complied with these
requirements, a plaintiff is generally not permitted to amend the complaint while a
defendant’s motion for summary judgment/adjudication is pending. (See, e.g., Van v.
Target Corp. (2007) 155 Cal.App.4th 1375, 1387, fn. 2 [citing authorities].) Thus, the
Court cannot grant leave to amend under the circumstances here.

Objections to Evidence

Plaintiff filed no separate written objections to evidence.

Defendants written objections to evidence are overruled.

Standard for Summary Judgment

Pursuant to Code of Civil Procedure §437c(p)(2), a defendant moving for summary
judgment bears an initial burden of producing evidence which shows either that one or
more elements of the cause of action, even if not separately pleaded, cannot be
established or that there is a complete defense to that cause of action and if the
moving defendant meets this burden of showing the cause of action has no merit, the
burden then shifts to the plaintiff to produce admissible evidence sufficient to
demonstrate the existence of a triable issue of material fact which precludes judgment
as a matter of law. A plaintiff opposing such a motion “may not rely upon the mere
allegations or denials of its pleadings to show that a triable issue of material fact exists
but, instead, shall set forth the specific facts showing that a triable issue of material
fact exists as to that cause of action or a defense thereto.” (Code Civ. Proc. §437c(p)
(2).) Additionally, the evidence offered in opposition to summary judgment must be
construed liberally while the evidence in support is construed narrowly. (See, e.g.,
DiLoreto v. Bd. of Education (1999) 74 Cal.App.4th 267; Alvarez v. State of California
(1999) 75 Cal.App.4th 903.)

In the present case, coupled with the fact that plaintiff’s opposition nowhere suggests
otherwise, this Court finds that Defendants did meet their initial burden of production
under Code of Civil Procedure §437c(p)(2). Consequently, they have successfully
shifted to plaintiff the burden to produce admissible evidence which establishes there
is at least one triable issue of material fact that precludes as a matter of law summary
judgment in favor of Defendants. As explained below, plaintiff has satisfied this burden
of production particularly when his evidence in opposition is, as it must, construed
liberally.

Motion for Summary Judgment

As noted above, Defendants move for summary judgment of the entire complaint
based on the immunity provided by Government Code §845.8, as discussed in Torres
v. Dept. of Corrections & Rehabilitation, a decision which appears to involve facts very
similar to the present case. In short, plaintiff Torres was a parolee who sued CDCR for
false imprisonment, negligence per se , negligence, and negligent/intentional infliction
of emotional distress inasmuch as Torres claimed he was falsely imprisoned when he
was detained on an alleged parole violation even after his parole expired by operation
of law. ( Torres, at 846.) The Second District Court of Appeal affirmed trial court’s
ruling that Torres’ complaint was barred not only by his failure to file a timely
government tort claim but also by the immunity provided in §845.8. (Id.) With respect
to this statutory immunity, the Second District stated in pertinent part:

“Section 845.8 has been broadly construed to immunize state officers who, in
exercise of their discretion, detain, arrest, or reincarcerate a person on the
mistaken belief the person is actively on parole. (Perez-Torres v. State of
California (2007) 42 Cal.4th 136, 142.) The decision to reincarcerate appellant
[Torres] was not ‘ministerial’ for which there may be no immunity. (Id. at pp. 143
-144.) In Swift v. Department of Corrections (2004) 116 Cal.App.4th 1365, the
plaintiff was arrested for a parole violation even though his parole expired four
years earlier. The plaintiff sued CDCR for false imprisonment and negligence.
The Court of Appeal held that the action was barred by section 845.8 because
the plaintiff was incarcerated before any determination was made that his parole
had expired. (Swift, at p. 1372, disapproved on other grounds in Perez-Torres v.
State of California, supra, 42 Cal.4th at p. 145, fn. 4.)

Like Swift, appellant [Torres’] complaint is based on a parole reincarceration
that occurred before it was determined, in a habeas corpus proceeding, that his
parole had expired. Section 845.8 immunity applies. No facts are alleged that
CDCR detained appellant after the Court of Appeal determined that [the Board
of Parole Hearings] no longer had jurisdiction to retain appellant [Torres] on
parole. (See Perez-Torres v. State of California, supra, 42 Cal.4th at p. 145.)” (
Torres, at 849-850.)

Based on the foregoing passage, Defendants contend that the complaint in the present
case which alleges essentially identical facts is also barred by the provisions of
Government Code §845.8.

In opposition, plaintiff relies on the 2007 Supreme Court decision of Perez-Torres v.
State of California for the proposition that Government Code §845.8’s immunity is
under longstanding precedent limited to initial discretionary decisions to detain, arrest
and re-incarcerate but does not extend to subsequent negligent conduct. (Oppos.,
p.6:1-5.) In Perez-Torres, the plaintiff sued the State of California and three parole
agents for negligence and false imprisonment after being arrested for driving under the
influence and mistaken (due to an incorrect entry in a criminal history database) for a
parolee who had a similar name. (Perez-Torres, at 138.) The parole agents noticed that plaintiff was substantially shorter than the actual parolee’s height but the agents
did not initially compare fingerprints to verify plaintiff was the actual parolee. When the
mistaken-identity error was discovered 25 days later, the plaintiff was released from jail
and he filed suit. (Id.) The defendants successfully moved for summary judgment
pursuant to §845.8’s immunity but the California Supreme Court reversed, finding that
the immunity did not extend to the continued incarceration after defendants knew or
should have known the plaintiff was not the actual parolee. (Id., at 141.) More
specifically, the High Court held:

“Here, the state’s decision to revoke Salgado’s parole, based on the mistaken
belief that plaintiff, a nonparolee, was Salgado, was — like the decision in
Johnson to place the dangerous youth on parole with the foster parents — a
basic policy decision and thus within the governmental immunity provision of
section 845.8(a). After that basic policy decision was made, however, the state
defendants’ conduct in keeping plaintiff in jail after they knew or should have
known that he was the wrong man was — like the failure in Johnson to warn the
foster parents of the youth’s dangerous propensities — an action implementing
the basic policy decision and thus outside the statutory immunity, making it
subject to legal redress on the question of negligence by the state. (Johnson, at
pp. 797, 799.) Just as section 845.8(a)’s governmental immunity was
inapplicable in Johnson to the state’s failure to warn the foster parents, so too
here it is inapplicable to the state defendants’ decision to keep plaintiff in jail
after they knew or should have known he was not parolee Salgado.” (
Perez-Torres, at 145.)

Based on this language, plaintiff concedes Defendants have immunity for their initial
decision to detain, arrest and re-incarcerate plaintiff but he insists this immunity affords
no protection for conduct occurring after Defendants knew or should have known that
plaintiff’s parole had already expired by operation of law. In particular, the opposition
asserts Defendants’ two audits of plaintiff’s Central File on August 5 and October 26,
2010 (AMF Nos. 24-25), after his re-incarceration, either revealed or should have
revealed that his parole had previously expired and that his re-incarceration was
therefore improper. In particular, plaintiff maintains that numerous CDCR documents
(correctly) indicated plaintiff’s parole term was only three years (AMF Nos. 26, 28-30),
rather than the five years believed by at least two named Defendants (UMF Nos. 37,
43). Among these documents was a “Notice and Conditions of Parole” signed by a
Parole Unit Supervisor on October 25, 2010 which stated that plaintiff’s “correct” parole
term was only three years. (AMF 26.) Plaintiff argues this failure of Defendants to
correctly determine the expiration of his parole term constitutes a triable issue of
material fact regarding Defendants’ “subsequent” negligence which, under
Perez-Torres, is not shielded from liability by §845.8. (Oppos., p.6:20-27; p.8:7-12.)

In light of not only the requirement for construing liberally the evidence in opposition
but also the plain language of the Supreme Court’s decision in Perez-Torres that
Government Code §845.8’s immunity does apply once a defendant knows or should
know that an individual was improperly (re-)incarcerated, this Court finds that plaintiff
here has satisfied his burden of production under Code of Civil Procedure §437c(p)(2)
to present evidence sufficient to create a triable issue of material fact relating to
§845.8’s immunity and that this preclude entry of judgment as a matter of law in
Defendants’ favor.

Accordingly, Defendants’ motion for summary judgment must be and hereby is denied.
In light of the Court’s congested calendar, the Court declines to rule on Defendants’
alternative motions for summary adjudication until after hearing and considering the
parties’ oral argument relating to summary judgment.

This minute order is effective immediately. Pursuant to CRC Rule 3.1312, counsel for
plaintiff to prepare an order which conforms to Code of Civil Procedure §437c(g).