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DEFENDANT’S NOTICE AND MOTION FOR SUMMARY JUDGMENT OR ADJUDICATION - 1

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III. ARGUMENT

A. Summary Judgment Or Summary Adjudication For Defendant Is Proper For

The First Cause Of Action Because Plaintiff Failed To Establish The Elements

Necessary To Show That Defendant Was Responsible For Malicious Prosecution

Malicious prosecution consists of the initiation and maintenance of legal proceedings

against another with malice and without probable cause. Hardy v. Vial (1957) 48 C.2d 577, 580,

311 P.2d 577; Andrus v. Estrada (1995) 39 C.A.4th 1030, 1039. The proceedings on which the

tort is based may be criminal, civil, or administrative in nature. (Sheldon Appel Co. v. Albert &

Oliker (1989) 47 C.3d 863, 871, 254; see Rest.2d, Torts §§653 et seq., 674 et seq.; Dobbs, The

Law of Torts §429 et seq.; 1 Harper, James & Gray 3d §4.1 et seq.; Cal. Civil Practice, 1 Torts,

Malicious Prosecution and Abuse of Process, Chap. 19; 5 Cal. Proc. (4th), Pleading, §706 et seq.;

20 California Lawyer 69 (August 2000) [nature and elements of malicious prosecution claim];

152 A.L.R. Fed 605 [Federal Tort Claims Act exemption of malicious prosecution claims]; 52

Am.Jur.2d (2000 ed.), Malicious Prosecution §1 et seq.; 16 Am.Jur. Trials 205 [malicious

prosecution]; 7 Proof of Facts 2d 181 [malicious prosecution].

1. To Establish A Claim For Malicious Prosecution, Plaintiffs Must Establish

Six Elements

CACI Jury instruction 1500 states that to establish this claim for Malicious Prosecution,

the Plaintiff must prove all of the following: (1) That defendant was actively involved in causing

plaintiff to be prosecuted [or in causing the continuation of the prosecution]; (2) that the criminal

proceeding ended in plaintiff's favor; (3) That no reasonable person in defendant's circumstances

would have believed that there were grounds for causing plaintiff to be arrested or prosecuted;

(4) that defendant acted primarily for a purpose other than to bring plaintiff to justice; (5) that

plaintiff was harmed; and (6) that defendant's conduct was a substantial factor in causing

plaintiff's harm.


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The law requires that the trial judge, rather than the jury, decide if plaintiff has proven element 2

above, whether the criminal proceeding ended in [his/her/its] favor. Judicial Council of

California Civil Jury Instruction 1500. Furthermore, the elements of the tort, must be established

by a preponderance of the evidence. Long Beach v. Bozek (1982) 31 C.3d 527, 531; Jacques

Interiors v. Petrak (1987) 188 C.A.3d 1363, 1369; Nicholson v. Fazeli (2003) 113 C.A.4th 1091,

1098; Slaney v. Ranger Ins. Co. (2004) 115 C.A.4th 306, 318.

a. Plaintiff Cannot Establish By Preponderance Of The Evidence

That No Reasonable Person In Defendant’s Officer Gunn’s Position

Would Have Believed That There Were Grounds For Arrest of

Plaintiff.

Malicious prosecution requires that the defendant did not reasonably believe that there

were any grounds (probable cause) to initiate the proceeding (element 3). Probable cause is to be

decided by the court as a matter of law. Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d

863, 881. Probable Cause requires only a probability or substantial chance of criminal activity,

not an actual showing of such activity. Illinois v. Gates, 462 U.S. 213, 243(U.S.1983). “When,

the claim of malicious prosecution is based upon initiation of a criminal prosecution, the

question of probable cause is whether it was objectively reasonable for the defendant … to

suspect the plaintiff … had committed a crime.” Greene v. Bank of America (2013) 216

Cal.App.4th 454, 463-464; Ecker v. Raging Waters Group, Inc. (2001) 87 Cal.App.4th 1320,

1330, 105 Cal.Rptr.2d 320.

“For purposes of a malicious prosecution action, probable cause does not depend upon

the possession of facts which satisfactorily prove the guilt of an accused person. It has reference

of the common standard of human judgment and conduct. It exists if one is possessed of

Information or facts which are sufficient to cause a reasonable person to honestly believe the

charge is true” Northrup v. Baker (1962) 202 Cal.App.2d 347, 354, 20 Cal.Rptr. 797.


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This means that an arresting officer need not possess sufficient facts and information to prove

guilt, but instead only a reasonable belief that the suspect might be involved in the crime.

The jury is entitled to answer the question of the defendant's subjective factual

knowledge or belief only when there is evidence that the defendant may have known that

the factual allegations on which his action depended were untrue. In that type of case, the

jury must determine what facts the defendant knew before the trial court can determine the legal

question whether such facts constituted probable cause to institute the challenged proceeding.”

Greene v. Bank of America (2013) 216 Cal.App.4th 454, 463-464.

In our present case, there is no evidence presented that suggests that Officer Gunn

did not have any information, facts, or reason to believe that Plaintiff should be charged. In

fact, the victim Barbara King, in this case herself was able to identify whom she believed to be

her attacker and rapist. The first identification proceeding happened right away, hours after the

attack at the hospital where she was, while she still had a fresh recollection of the events and her

rapist. The second identification happened the following morning after the rape, in the comfort of

the victim’s home. The third identification occurred two days later, where the victim for a third

time pointed out PLAINTIFF as her rapist.

When a victim identifies a rapist three times, this information rises to the level of

sufficient objective reasonableness required to make an arrest. In other words, there is probable

cause to at least make an arrest and question the person. Since Officer Gunn recognized

PLAINTIFF based on previous encounters PLAINTIFF had with the Lake Elsinore Police

Department, he had personal knowledge of who the victim was. On this information alone,

Officer Gunn had the requisite probable cause to make an arrest.

Furthermore, following preferred police procedure, Officer Gunn made a “good faith”

attempt to obtain and secure a warrant lawfully from the magistrate. Officer Gunn was then

successful at obtaining an arrest warrant for PLAINTIFF, and proceeded to bring whom he


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reasonably believed to be the person responsible for the crime. Obtaining a warrant required a

hearing by a magistrate who then makes a determination that there was sufficient probable cause

to arrest the suspect.

Therefore, since there was a valid arrest warrant issued in this case, Defendant Officer

Gunn and the Lake Elsinore Police Department had not only a right, but also a duty to arrest

PLAINTIFF as they did in the course and scope of their employment as police officers.

However, assuming arguendo that this court determines the arrest warrant was obtained

improperly, Officer Gunn still had probable cause based on the victim’s identification three times

of the PLAINTIFF, to arrest PLAINTIFF. Therefore,

b. Plaintiff Fails To Establish By Preponderance Of Evidence That

Defendant Officer Gunn Acted Primarily For A Purpose Other Than

To Bring Plaintiff To Justice.

“If the defendant had no substantial grounds for believing in the plaintiff's guilt, but,

nevertheless, instigated proceedings against the plaintiff, it is logical to infer that the defendant's

motive was improper.” Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 881; see also

5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 485, p. 710. By preponderance means

that Plaintiff has to show that it was more likely than not that defendant Officer Gunn acted

primarily for a purpose other than to bring the suspect who was identified by the victim to

justice.

In this case, the identified subject was plaintiff, however, plaintiff has failed to present

any evidence that shows Officer Gunn’s primary purpose for arresting her was one other than to

bring her for justice due to her being the individual the victim identified.

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c. Plaintiff Cannot Establish By Preponderance That Defendant

Officer Gunn’s Conduct Was A “Substantial Factor” In Causing

Plaintiff’s Harm

‘The test is whether the defendant was actively instrumental in causing the prosecution.’

Sullivan v. County of Los Angeles, (1974) 12 Cal.3d 710, 720; Greene v. Bank of America, 216

Cal. App. 4th 454, 464(Cal. App. 2d Dist.2013). Actively instrumental means that but for the

“substantial factor,” the Plaintiff’s harm would not have occurred, established by a

preponderance of evidence.

Here, plaintiff fails to set forth specific facts or evidence in discovery and in the

Complaint, that allege defendant officer Gunn was actually a substantial factor in causing

Plaintiff’s harm. The substantial factors were the victim that identified plaintiff, the defense

counsel that defended Plaintiff in the criminal proceeding, and the jury that convicted plaintiff in

the criminal proceeding. Officer Gunn was merely performing his job as sergeant of the police

force, had he not been the one to arrest plaintiff, there would have been another officer that

would have done the arrest. Officer Gunn was simply perform his duties in the course and scope

of his employment as any other sergeant of the Lake Elsinore Police Department would have

done.

2. Immunity Under Government Code Section 821.6 States That A Public

Employee Including An Officer Will Not Be Liable For Any Injury Caused

By His Actions During The Course And Scope Of His Duties As An Officer

California Government Code § 815.2(b) states that “except as otherwise provided by

statute, a public entity is not liable for an injury resulting from an act or omission of an employee

of the public entity where the employee is immune from liability. Cal. Gov't Code § 815.2

(West). Also, A public employee is not liable for his act or omission, exercising due care, in the

execution or enforcement of any law.


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Nothing in this section exonerates a public employee from liability for false arrest or false

imprisonment. Cal. Gov't Code § 820.4 (West) Furthermore, Government Code section 821.6

provides: “A public employee is not liable for injury caused by his instituting or prosecuting any

judicial or administrative proceeding within the scope of his employment, even if he acts

maliciously and without probable cause.”

Subject to these code sections, plaintiffs have not presented sufficient facts or evidence to

show why Officer Gunn and the Lake Elsinore and Riverside County should not be immune

from any harm stemming out of the course and scope of official duties as an officer.

B. Summary Judgment Or Summary Adjudication For Defendant Is Proper For

The Second Cause Of Action Because Plaintiff Failed To Establish The Elements

Necessary To Show That Defendant Was Responsible For Intentional Infliction Of

Emotional Distress.

“A cause of action for intentional infliction of emotional distress exists when there is ‘(1)

extreme and outrageous conduct by the defendant with the intention of causing, or reckless

disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or

extreme emotional distress; and (3) actual and proximate causation of the emotional distress by

the defendant’s outrageous conduct.’ A defendant’s conduct is ‘outrageous’ when it is so

‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ And the

defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that

injury will result.’ ” Hughes v. Pair (2009) 46 Cal.4th 1035, 1050—1051.

It is unnecessary in the present case to go beyond the first element. Plaintiff fails to

present sufficient facts or evidence that would support an allegation that Officer Gunn’s conduct

was extreme and outrageous in any manner, and that Officers Gunn had an intention or reckless

disregard for causing harm to Plaintiff.


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There is no indication that an officer making a legal arrest in the course and scope of his duties

with probable cause, is in any way, shape or manner outrageous or extreme and intentional.

C. Summary Judgment Or Summary Adjudication For Defendant Is Proper For

The Third Cause Of Action Because Plaintiff Failed To Establish The Elements

Necessary To Show That Defendant Was Responsible For Negligence.

CACI jury instruction 401 states that negligence is the failure to use reasonable care to

prevent harm to oneself or to others. A person can be negligent by acting or by failing to act. A

person is negligent if he or she does something that a reasonably careful person would not do in

the same situation or fails to do something that a reasonably careful person would do in the same

situation. Judicial Council of California Civil Jury Instruction 401. “The elements of a

negligence cause of action are the existence of a legal duty of care, breach of that duty, and

proximate cause resulting in injury.” McIntyre v. Colonies-Pac., LLC, 228 Cal. App. 4th 664,

671 (2014).

Plaintiff failed to establish the adequate standard of care and duty that defendant owed to

her, as well as how the defendant breached his duties in his capacities as an officer under the

course and scope of his employment. Officer Gunn followed procedures and practice established

by the highest state authorities and implemented and supervised by his superiors. All officers in

similar situations would have acted in a similar manner as officer Gunn did, therefore he acted

on an objectively reasonable manner at all times and was not in breach of his duty to the suspect

he arrested.

D. Summary Judgment Or Summary Adjudication For Defendant Is Proper For

The Fourth Cause Of Action Because Plaintiff Failed To Establish The Elements

Necessary To Show That Defendant Was Responsible For Defamation.


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CACI jury instruction 1701 for Defamation states that to establish this claim, plaintiff

must prove that all of the following are more likely true than not true: (1) That defendant made

one or more the statement(s) to a person/persons other than plaintiff; (2) that this person/these

people reasonably understood that the statement(s) was/were about plaintiff; (3) that because of

the facts and circumstances known to the listener(s) of the statement(s), they tended to injure

plaintiff in her occupation or to expose her to hatred, contempt, ridicule, or shame or to

discourage others from associating or dealing with her; (4) that the statement(s) were false; (5)

That plaintiff suffered harm to her property, business, profession, or occupation including money

spent as a result of the statement(s); and (6) That the statement(s) were a substantial factor in

causing name of plaintiff's harm. In addition, plaintiff must prove by clear and convincing

evidence that defendant knew the statement(s) were false or had serious doubts about the

truth of the statement(s). Judicial Council Of California Civil Jury Instruction 1700.

Police Officers have a privilege codified under the Fair Reporting Privilege against

defamation on matters of public concern. The power exercised by police officers, and their

public visibility, naturally subject them to public scrutiny and make them public officials for

purposes of defamation law. Young v. CBS Broad., Inc., 212 Cal. App. 4th 551, 561 (2012). This

privilege applies to statements made by arresting officers, where the facts of the statements made

appear on the police report. Furthermore Cal. Civ. Code 47(d)(E) codifies the privilege for any

communication of a verified charge or complaint made by any person to a public official, upon

which complaint a warrant has been issued. This absolute privilege covers communications made

before the official proceeding (such as a lawsuit or a government investigation) actually begins.

Martin v. Kearney (1975) 50 Cal.App.3d 309, 311.

In this case, the statement made by Officer Gunn was that plaintiff was being arrested for

interrogation for a crime of rape. This statement is the same one that police officers make every

day throughout the entire state when making an arrest, they simply recite to the suspect what


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they are being arrested for. Crimes are matters of public concern, and so accordingly it is

irrelevant whether other people heard the statement, or whether the statement turned out to be

false. Furthermore, the reason for the arrest appeared on the police report, and a warrant was

issued thereby clearly falling within the realm of both privileges: The Fair Reporting Privilege

Act as well as Cal. Civ. Code 47(d)(E).

Not only has Plaintiff failed to present evidence of all the elements of defamation,

but permitting this cause of action for defamation by a police officer to go forward would

be completely contrary to public policy. This would mean that every suspect that gets arrested

on probable cause grounds, and subsequently does not get convicted, or gets convicted then

exonerated, would have a potential cause of action against the police officer and the city and

county. This would lead to fewer criminals being caught, and also a flood of lawsuits against a

police departments and cities all over the state. For this reason, summary judgment is appropriate

or summary adjudication as to this issue.

E. Summary Adjudication That A Punitive Damages Claim Has No Merit Should

Be Granted Where There Is No Clear And Convincing Evidence That Defendant

Acted With Malice, Oppression, “Willful And Conscious Disregard.”

Code of Civil Procedure § 437c(f)(1) expressly authorizes a defendant to move for

summary adjudication when “there is no merit to a claim for damages, as specified in section

3294 of the Civil Code. With specific regard to a claim for punitive damages, a defendant is

entitled to summary adjudication that there is no merit to such a claim based upon a showing that

the plaintiff does not have “clear and convincing evidence” supporting each element of that

punitive damage claim. Basich v. Allstate Ins. Co. (2001) 87 Cal.App.4th 1112, 1118-1120;

American Airlines, Inc. v. Sheppard, Mullin Richter & Hampton (2002) 96 Cal.App4th 1017,

1049; and Reader’s digest Assn. v. Superior Court (1984) 37 Cal.3d. 244, 252. As held by the

court in Basich, supra, 87 Cal.App.4th at 1121:


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“On a motion for summary adjudication with respect to a punitive damages

claim, the higher evidentiary standard [clear and convincing evidence]

applies. If the plaintiff is going to prevail on a punitive damages claim, he

or she can only do so by establishing malice, fraud or oppression by clear

and convincing evidence. Thus, any evidence submitted in response to a

motion for summary adjudication must necessary meet that standard.”

Here, the undisputed facts presented by the Defendants Officer Gunn, City of Lake

Elsinore, and County of Riverside, show that plaintiff did not present clear and convincing

evidence to support any recovery of punitive damages in the negligence action.

1. As a Result Of The 1987 Amendments To Civil Code Section 3294,

Plaintiff Must Prove Defendants Acted With Willful And Conscious

Disregard Of The Rights Or Safety Of Others.

Since the 1987 amendments to the Civil Code § 3294, for “despicable conduct” to

constitute “malice,” for purposes of imposing punitive damages, it must now be carried on by the

defendant with not only a “conscious disregard of the rights or safety of others,” but with a

“willful and conscious” disregard of the rights or safety of others. As a result, no longer can non-

Intentional torts form the basis for punitive damages when the conduct constitutes [only a]

conscious disregard of the rights or safety of others.

In this case, plaintiff lacks any evidence that shows a willful and conscious disregard on

behalf of defendants. Plaintiff failed to present any affidavits that dispute any material facts

presented by defendants’ evidence as to this issue. Furthermore, throughout the Complaint,

Plaintiff alleged that Defendants were negligent and not that defendants acted intentionally,

“willfully and consciously.” Therefore, on this independent ground, the Defendants submit that

they are entitled to summary adjudication that plaintiff’s punitive damage claim has no merit.

Marwan Abdallah [email protected]

mailto:[email protected]

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