2011-00116057-CU-CR

Lucas M Serafine vs. CDCR

Nature of Proceeding: Motion to Reopen Discovery and Continue Trial

Filed By: Chastaine, Michael

Plaintiff’s motion to re-open discovery and to continue the current trial date of
12/3/2013 is DENIED, as follows.
Moving counsel is admonished because the notice of motion does not provide notice
of the Court’s tentative ruling system, as required by Local Rule 1.06(D). Moving
counsel is directed to contact opposing counsel forthwith and advise him/her of Local
Rule 1.06 and the Court’s tentative ruling procedure and the manner to request a
hearing. If moving counsel is unable to contact opposing counsel prior to
hearing, moving counsel is ordered to appear at the hearing in person or by
telephone.

Moving counsel is also admonished for failing to comply with CRC Rules 2.111(3) and
3.1110(b)(3)-(4).

Plaintiff was convicted in October 2000 of violating Penal Code §288(a) in July 2000.
He was initially placed on probation but after violating 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 was thereafter
falsely arrested by defendants for violating the terms of his parole and 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. Trial
is currently set for 12/3/2013.

Plaintiff now seeks to re-open discovery on the grounds that he “recenty [sic]
discovered information” which indicated “there is critical information missing” and
“additional discovery is necessary to prepare for trial.” (Not. of Mot., p.2:3-7) In his
supporting points and authorities, plaintiff first notes that when the original September
2013 trial date was in May 2013 continued to 12/3/2013, discovery was not extended
“due to an oversight.” (Mov. Memo. P&A, p.3:8-12.) As a result, in September 2013
defendants objected and refused to respond to interrogatories served by plaintiff,
which he apparently wishes to re-propound.

Plaintiff also wants to depose one of the named defendants, claiming that his
testimony is critical to overcoming the immunities identified by defendants in their
summary judgment motion. (Id., at p.3:20-25.) More specifically, plaintiff notes that
defendant Ambroselli, head of adult parole, was in December 2010 served with an
OSC in connection with plaintiff’s habeas corpus proceeding in which he claimed he
was being illegally detained and yet, according to plaintiff, defendant Ambroselli
submitted in support of defendants’ summary judgment motion a declaration averring
that he was unaware of plaintiff’s parole being extended until the latter’s obtained
habeas corpus relief. Plaintiff insists he needs to depose defendant Ambroselli to
“reconcile” this apparent inconsistency as well as to determine why it took 11 days to
release plaintiff from custody after the writ of habeas corpus was granted. (Id., at
p.5:15-p.6:18.)

Additionally, plaintiff argues that the recent decision of Lopez v. Brown (2013) 217
Cal.App.4th 1114 shows that the California Department of Corrections and
Rehabilitation (“CDCR”) miscalculated the release dates of 594 other inmates between
2004 and 2008, supporting plaintiff’s contention that defendants knew or should have
known the former’s parole period was “illegally extended.” (Id., at p.3:26-p.4:11.)

Finally, plaintiff contends defendants have not been “completely responsive” to his
discovery requests and delayed in producing certain documents, although the motion
fails to identify when these events occurred. Regardless, plaintiff appears to concede
he has all along had copies of the allegedly missing documents.

In order to complete the additional discovery, plaintiff also seeks to continue the trial
date of 12/3/2013.

Defendants oppose the motion on various grounds, including plaintiff’s patent lack of
diligence in pursuing the discovery which he now claims to need in order to prepare for
trial, particularly in light of the fact this case has been pending now for nearly two years
and trial is set to commence in only six (6) court days after the hearing on this motion.

Code of Civil Procedure §2024.050 governs the re-opening of discovery. In exercising
its discretion, this Court must consider all relevant matters, including (1) the necessity
and reasons for the discovery, (2) the diligence of the party seeking discovery and the
reasons that the discovery was not completed earlier, (3) the likelihood that reopening
discovery will prevent the case from proceeding to trial on the date set or will result in
prejudice, and (4) the length of time between the original trial date and the new trial
date. (Code Civ. Proc. §2024.050(b).)

The Court must agree with defendants that plaintiff has failed to act with diligence in
pursuing the discovery now sought and in bringing the present motion. First, the
interrogatories to which defendants refused to respond were served in August 2013
but plaintiff waited until nearly November 2013 to file the present motion. Plaintiff also
provided no explanation why these interrogatories were not or could not have been
served earlier. Second, plaintiff has failed to provide a reasonable explanation for his
failure to timely depose defendant Ambroselli, one of the named defendants, whose
identity has clearly been known to plaintiff for several years and who was known since
2010 to have been served with the OSC in connection with plaintiff’s habeas corpus
petition. Even after being served with defendants’ summary judgment motion
(including the Ambroselli declaration) in August 2013, plaintiff apparently made no
prompt effort to re-open discovery when trial was then still nearly four (4) months
away. Plaintiff’s belated attempt to justify this deposition on the ground that he needs
to determine why it took 11 days to release plaintiff from custody weighs against relief
here since this information clearly could have and should have been sought long ago,
given that the delay in the release has been known for over two years. Third, while
plaintiff suggests defendants were not “completely responsive” to his discovery
requests, the motion fails to identify when these events occurred but even if it did,
plaintiff effectively admits he already had the documents which defendants delayed in
producing. Finally, and perhaps most importantly, plaintiff’s motion indicates the
reason this discovery now sought to be completed was not accomplished earlier is that
plaintiff’s counsel simply failed do so. (Id., at p.5:6-7 [“The reason for reopening
discovery is simply to obtain information that was not requested by counsel that would
provide Plaintiff with the facts he needs to prepare for trial.”)

Moreover, the Court is not persuaded that any of the discovery now sought to be
completed is particularly significant, much less “critical.” Although plaintiff makes of defendants’ refusal to respond to interrogatories served after the discovery cutoff (per
the original September 2013 trial date), he does not attach a copy of these
interrogatories to the motion or to otherwise explain what information was targeted by
the interrogatories. Accordingly, the Court is unable to conclude that these
interrogatories are of sufficient import to justify the re-opening of discovery or a last
minute trial continuance. With respect to the Ambroselli deposition, the primary
justification is to “reconcile” the declaration submitted in support of the summary
judgment motion but this declaration, like the summary judgment motion itself, will be
of little significance at trial and thus, the claimed need to depose defendant Ambroselli
does little to advance plaintiff’s argument to re-open discovery in order to prepare for
trial. Likewise, defendants’ delay in producing documents already possessed by
plaintiff does not aid the latter’s position. Finally, plaintiff’s reference to the decision of
Lopez v. Brown adds little since it has no application to plaintiff’s case and since the
alleged miscalculation of the plaintiff’s parole occurred in 2010, well past the time
period at issue in Lopez, 2004 to 2008.

In light of the foregoing, this Court is not inclined to exercise it discretion under Code of
Civil Procedure §2024.050 to re-open discovery but given that plaintiff admits, as he
must, that the re-opening of discovery here will necessitate a further delay in the trial of
this action, the motion to re-open discovery is hereby denied.

Since the motion to continue the 12/3/2013 trial date is premised on the need to
conduct further discovery, the Court finds no good cause to continue the trial either.

This minute order is effective immediately. No formal order or other notice is required.
(Code Civ. Proc. §1019.5; CRC Rule 3.1312.)

Item 4 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, the parties are directed to notify the clerk and
opposing counsel at the time of the request which of the 15 Issues identified in
the Notice of Motion and which of the Undisputed Material Facts offered by the
moving defendants and/or the Additional Material Facts offered by plaintiff will
be addressed at the hearing and the parties should be prepared to point to
specific evidence which is claimed to show the existence or non-existence of a
triable issue of material fact. ***

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 of producing
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.)
Defendants’ motion for summary adjudication of the 15 issues identified in the notice of
motion is also DENIED inasmuch as each issue relies at least in part on the assertion
of the immunity found in Government Code §845.8 (erroneously cited in both the
moving and opposing papers as Penal Code §845.8).

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. 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 promptly file a noticed motion to obtain
such relief and the Court declines to grant such relief here. 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/Adjudication

Pursuant to Code of Civil Procedure §437c(p)(2), a defendant moving for summary
judgment/adjudication 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/adjudication 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 summary
judgment/adjudication in favor of Defendants.

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. Plaintiff maintains that numerous CDCR documents in the File
(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 alone precludes judgment as a matter of law in
Defendants’ favor.

Accordingly, Defendants’ motion for summary judgment must be and hereby is denied.
The fact the notice of motion purports to state that the Defendants move both jointly
and severally for summary judgment does not change the outcome here because each
defendant’s individual motion effectively relies on the very same UMF as Defendants’
joint motion and since plaintiff has, as discussed above, produced evidence that shows
a triable issue of material fact which precludes summary judgment for the individual
defendants as well. Moreover, under Perez-Torres, the question of negligence in
failing to correctly determine the parole term itself appears to constitute a triable issue
of material fact which mandates denial of summary judgment for the individual
defendants as well.

Motion for Summary Adjudication
Having denied Defendants’ motion for summary judgment, the Court now turns to the
alternative motion for summary adjudication of the 15 issues identified in the notice of
motion. As explained below, Defendants’ own characterization of each issue
presented for summary adjudication as being based in part on Government Code
§845.8’s immunity mandates denial of the entire alternative motion regardless of the
merits of the other grounds also asserted by Defendants. To be clear, had Defendants
framed their issues more carefully, the Court likely would have granted summary
adjudication as to several of the COA and claims for damages alleged by plaintiff.

Issue 1. Defendants maintain the 2nd COA under Civil Code §52.1 is without merit
because (1) it is barred by Government Code §845.8’s immunity and by plaintiff’s
failure to present a government tort claim within six months; (2) plaintiff has neither
alleged nor established any “threats, intimidation, or coercion” within the meaning of
Civil Code §52.1; and (3) neither defendant Ambroselli nor defendant Salinas had any
personal involvement with plaintiff’s parole calculation, supervision or revocation,
including his re-incarceration.

Since the immunity in Government Code §845.8 does not for the reasons explained
above entitle Defendants to judgment as a matter of law given the facts of this case,
summary adjudication must also be denied as to Issue 1 inasmuch as Defendants
framed Issue 1 in the conjunctive (i.e., “and”) rather than the disjunctive (i.e., “or”). To
be clear, according to the notice of motion, Defendants seek summary adjudication of
the 2nd COA on the grounds that it is barred by §845.8 and the failure to present a
timely tort claim and plaintiff cannot establish any “threats, intimidation, or coercion”
which violate §52.1 and two individual defendants had any personal involvement with
plaintiff’s parole calculation. Because Defendants have failed to show that the 2nd
COA fails for each of these reasons, summary adjudication must be denied. Had
Defendants intended to seek summary adjudication on any one of these grounds, the
notice of motion should have framed Issue 1 in the disjunctive, using “or” rather than
“and,” or better yet, Issue 1 should have been broken down into four (4) or more
separate issues.

rd
Issue 2. Defendants argue the 3 COA for false arrest/imprisonment based on the
state constitution fails since (1) it is barred by the immunities found in Government
Code §845.8, §821.6 and §847(b); (2) plaintiff’s imprisonment was imposed under
color of lawful process; and (3) neither defendant Ambroselli nor defendant Salinas
had any personal involvement with plaintiff’s arrest or imprisonment. Summary
adjudication of Issue 2 must also be denied because it too is framed in the conjunctive
and the Court has already rejected Defendants’ defense based on Government Code
§845.8’s immunity.

th
Issue 3. Defendants seek summary adjudication of the 4 COA for false
arrest/imprisonment under “common law” lacks merit on the exact same grounds as
Issue 2. Summary adjudication is denied as to Issue 3 for the same reasons as Issue
2: Issue 3 was also framed in the conjunctive and Defendants’ reliance on
Government Code §845.8 is misplaced, which mandates denial of the motion as to
Issue 3 as well.

Issue 4. Summary adjudication must be denied as to this issue, relating to the 5th
COA for intentional infliction of emotional distress, because Issue 4 was framed in the
conjunctive and specifically includes Government Code §845.8’s immunity. Issue 5. Defendants move for summary adjudication of the 6 COA for negligent
infliction of emotional distress on several grounds including Government Code §845.8
but because Issue 5 was framed in the conjunctive, the motion must be denied
because §845.8 does not provide a complete defense which entitles Defendants to
judgment as a matter of law.

Issue 6. Summary adjudication must be denied as to this issue, relating to the 7th
COA for negligence because Issue 6 was framed in the conjunctive and specifically
includes Government Code §845.8’s immunity.

th
Issues 7-10. Defendants have sought summary adjudication of the 8 COA for
negligent supervision/hiring/training/retention on multiple grounds including
Government Code §845.8. Since Issues 7-10 are otherwise identical and each was
framed in the conjunctive, the motion must be denied because Defendants’ reliance on
§845.8’s immunity is misplaced for the reasons cited above.

Issues 11-12. Defendants move for summary adjudication of plaintiff’s claims for
“bodily injury” and “loss of property” on the grounds that each is barred by Government
Code §845.8’s immunity and by plaintiff’s failure to present a timely government tort
claim. Because Issues 11 and 122 were framed in the conjunctive and specifically
include Government Code §845.8’s immunity, summary adjudication must be denied
as to both Issues 11 and 12 since the Court has concluded that §845.8’s immunity
does not entitle Defendant’s to judgment as a matter of law in light of the facts of this
case.

Issue 13. Defendants argue that plaintiff’s claim for punitive damages is without merit
since (1) it is barred by the immunity in Government Code §845.8, (2) the individual
defendants either had no knowledge of plaintiff’s case or reasonably believed the
official information provided to them that plaintiff was on active parole, and (3) public
entity defendants can have no liability for punitive damages as a matter of law.
Summary adjudication of Issue 13 must be denied because it is explicitly framed in the
conjunctive and the Court has rejected Defendants’ defense based on Government
Code §845.8’s immunity.

Issue 14. Defendants move for summary adjudication of plaintiff’s claim for attorney
fees under Civil Code §52.1 on several grounds including that the §52.1 COA is barred
by Government Code §845.8’s immunity, by plaintiff’s failure to present a timely
government tort claim and by the lack of any “threats, intimidation, or coercion” within
the meaning of §52.1. Because Issue 14 was framed in the conjunctive and expressly
includes §845.8, the motion must be denied as to Issue 14.

Additionally, the motion must be denied as to Issue 14 because the claim for attorney
fees is not the proper subject for summary adjudication under Code of Civil Procedure
§437c which explicitly limits the matters which are amenable to summary adjudication.
First, §437c(f)(1) states that a party may move for summary adjudication only “as to
one or more causes of action within an action, one or more affirmative defenses, one
or more claims for damages, or one or more issues of duty” and such a motion may be
“granted only if it completely disposes of a cause of action, an affirmative defense, a
claim for damages, or an issue of duty.” (Emphasis added.) Second, while §437c(s)(1)
does permit summary adjudication of a “legal issue or a claim for damages other than
punitive damages that does not completely dispose of a cause of action, an affirmative
defense, or an issue of duty,” §437c(s)(2) clarifies that such a motion may only be
brought by stipulation of the parties and a prior determination and order by the court
that the motion will further the interests of judicial economy. The present motion
comports with neither of these statutory provisions governing summary adjudication
since a claim for attorney fees is not a claim for “damages” within the meaning of
§437c(f)(1) statute and since this motion does not otherwise meet the requirements of
§437c(s)(2).

Issue 15. Defendants seek summary adjudication of plaintiff’s claim for “civil
penalties” under Civil Code §52.1(a) because the §52.1 COA is barred by Government
Code §845.8’s immunity, by plaintiff’s failure to present a timely government tort claim,
by the lack of any “threats, intimidation, or coercion” within the meaning of §52.1 and
because such penalties are not available in an action brought by “private legal
counsel.” Since Issue 15 was framed in the conjunctive and expressly includes
§845.8, a defense which does not here entitle Defendants to judgment as matter of law
on the facts of this case, summary adjudication must be denied as to Issue 15 as well.

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).