This case was last updated from Los Angeles County Superior Courts on 05/06/2022 at 21:10:41 (UTC).

MICHAEL A NICHOLS ET AL VS GERAGOS & GERAGOS ET AL

Case Summary

On 12/15/2017 MICHAEL A NICHOLS filed a Contract - Professional Negligence lawsuit against GERAGOS GERAGOS. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is GREGORY KEOSIAN. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7134

  • Filing Date:

    12/15/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Professional Negligence

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

GREGORY KEOSIAN

 

Party Details

Cross Defendants and Plaintiffs

NICHOLS MICHAEL A.

NICHOLS GEORGIA A.

NICHOLS MINDY K.

Defendants

MEISELAS BEN J.

GERAGOS & GERAGOS A CALIFORNIA PROFESS-

GERAGOS MARK J.

GAMMILL DAVID

WIARD STEPHEN J.

WONG JAMES

Cross Plaintiff

GERAGOS & GERAGOS

Not Classified By Court

RIVERSIDE COUNTY DISTRICT ATTORNEY

Interested Parties

FERNANDEZ RANAE

PALM SPRINGS POLICE DEPARTMENT

Attorney/Law Firm Details

Plaintiff Attorneys

LANGE JOSEPH

LAW OFFICES OF JAMES OSBORNE

Defendant Attorneys

BELILOVE STEVE R.

BRODSKY BARRY Z.

LUPTON JOHN T.

Cross Plaintiff Attorney

KIRAKOSIAN GREG L.

Not Classified By Court Attorneys

HEADLEE EMILY CHRISTINE

SMITH DOUGLAS C.

Interested Party Attorney

GRIMES DENISE

 

Court Documents

Notice - NOTICE NOTICE OF REMOTE APPEARANCE AT POST-MEDIATION STATUS CONFERENCE

3/1/2022: Notice - NOTICE NOTICE OF REMOTE APPEARANCE AT POST-MEDIATION STATUS CONFERENCE

Minute Order - MINUTE ORDER (POST-MEDIATION STATUS CONFERENCE)

3/2/2022: Minute Order - MINUTE ORDER (POST-MEDIATION STATUS CONFERENCE)

Motion to Bifurcate

3/24/2022: Motion to Bifurcate

Motion to Bifurcate

3/24/2022: Motion to Bifurcate

Motion in Limine - MOTION IN LIMINE DEFENDANTS GERAGOS & GERAGOS, MARK J. GERAGOS, BEN J. MEISELAS, AND JAMES WONG NOTICE OF MOTION AND MOTION IN LIMINE TO PRECLUDE EVIDENCE OR ARGUMENT OF DAMAGES BAS

4/13/2022: Motion in Limine - MOTION IN LIMINE DEFENDANTS GERAGOS & GERAGOS, MARK J. GERAGOS, BEN J. MEISELAS, AND JAMES WONG NOTICE OF MOTION AND MOTION IN LIMINE TO PRECLUDE EVIDENCE OR ARGUMENT OF DAMAGES BAS

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE MANDATORY SETTLEMENT CONFERENCE) OF 04/13/2022

4/13/2022: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE MANDATORY SETTLEMENT CONFERENCE) OF 04/13/2022

Motion in Limine - MOTION IN LIMINE DEFENDANTS GERAGOS & GERAGOS, MARK J. GERAGOS, BEN J. MEISELAS, AND JAMES WONG NOTICE OF MOTION AND MOTION IN LIMINE TO PRECLUDE EVIDENCE OR ARGUMENT REGARDING ANY

4/13/2022: Motion in Limine - MOTION IN LIMINE DEFENDANTS GERAGOS & GERAGOS, MARK J. GERAGOS, BEN J. MEISELAS, AND JAMES WONG NOTICE OF MOTION AND MOTION IN LIMINE TO PRECLUDE EVIDENCE OR ARGUMENT REGARDING ANY

Minute Order - MINUTE ORDER (COURT ORDER RE MANDATORY SETTLEMENT CONFERENCE)

4/13/2022: Minute Order - MINUTE ORDER (COURT ORDER RE MANDATORY SETTLEMENT CONFERENCE)

Motion in Limine - MOTION IN LIMINE DEFENDANTS GERAGOS & GERAGOS, MARK J. GERAGOS, BEN J. MEISELAS, AND JAMES WONG NOTICE OF MOTION AND MOTION IN LIMINE TO PRECLUDE EVIDENCE OR ARGUMENT REGARDING ANY

4/13/2022: Motion in Limine - MOTION IN LIMINE DEFENDANTS GERAGOS & GERAGOS, MARK J. GERAGOS, BEN J. MEISELAS, AND JAMES WONG NOTICE OF MOTION AND MOTION IN LIMINE TO PRECLUDE EVIDENCE OR ARGUMENT REGARDING ANY

Motion in Limine - MOTION IN LIMINE DEFENDANTS GERAGOS & GERAGOS, MARK J. GERAGOS, BEN J. MEISELAS, AND JAMES WONG NOTICE OF MOTION AND MOTION IN LIMINE TO PRECLUDE EVIDENCE OR ARGUMENT OF RUMORS OR S

4/13/2022: Motion in Limine - MOTION IN LIMINE DEFENDANTS GERAGOS & GERAGOS, MARK J. GERAGOS, BEN J. MEISELAS, AND JAMES WONG NOTICE OF MOTION AND MOTION IN LIMINE TO PRECLUDE EVIDENCE OR ARGUMENT OF RUMORS OR S

Stipulation and Order - STIPULATION AND ORDER JOINT STIPULATION REGARDING MOTIONS IN LIMINE PROPOSED ORDER

4/15/2022: Stipulation and Order - STIPULATION AND ORDER JOINT STIPULATION REGARDING MOTIONS IN LIMINE PROPOSED ORDER

Notice - NOTICE OF ENTRY OF JUDGMENT OR ORDER

4/18/2022: Notice - NOTICE OF ENTRY OF JUDGMENT OR ORDER

Opposition - OPPOSITION TO MOTION IN LIMINE NO. 3

4/19/2022: Opposition - OPPOSITION TO MOTION IN LIMINE NO. 3

Opposition - OPPOSITION TO MOTION TO BIFURCATE

4/19/2022: Opposition - OPPOSITION TO MOTION TO BIFURCATE

Opposition - OPPOSITION TO MOTION IN LIMINE NO. 1

4/19/2022: Opposition - OPPOSITION TO MOTION IN LIMINE NO. 1

Opposition - OPPOSITION TO MOTION IN LIMINE NO. 4

4/19/2022: Opposition - OPPOSITION TO MOTION IN LIMINE NO. 4

Opposition - OPPOSITION TO MOTION IN LIMINE NO. 2

4/19/2022: Opposition - OPPOSITION TO MOTION IN LIMINE NO. 2

Motion in Limine - MOTION IN LIMINE DEFENDANTS GERAGOS & GERAGOS, MARK J. GERAGOS, BEN J. MEISELAS, AND JAMES WONG REPLY IN SUPPORT OF MOTION IN LIMINE TO PRECLUDE EVIDENCE OR ARGUMENT REGARDING ANY P

4/22/2022: Motion in Limine - MOTION IN LIMINE DEFENDANTS GERAGOS & GERAGOS, MARK J. GERAGOS, BEN J. MEISELAS, AND JAMES WONG REPLY IN SUPPORT OF MOTION IN LIMINE TO PRECLUDE EVIDENCE OR ARGUMENT REGARDING ANY P

187 More Documents Available

 

Docket Entries

  • 05/10/2022
  • Hearing05/10/2022 at 09:00 AM in Department 61 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Bifurcate

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  • 05/10/2022
  • Hearing05/10/2022 at 09:00 AM in Department 61 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 05/03/2022
  • Docketat 08:30 AM in Department STL-C; MSC Timeslot (Judge James R. Dunn)

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  • 05/02/2022
  • Docketat 09:00 AM in Department 61, Gregory Keosian, Presiding; Final Status Conference - Held

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  • 05/02/2022
  • DocketMinute Order ( (Final Status Conference)); Filed by Clerk

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  • 04/26/2022
  • DocketRequest for Dismissal; Filed by Geragos & Geragos (Cross-Complainant)

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  • 04/25/2022
  • DocketJury Instructions (JOINT); Filed by Georgia A. Nichols (Plaintiff); Michael A. Nichols (Plaintiff); Ben J. Meiselas (Defendant)

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  • 04/25/2022
  • DocketExhibit List (JOINT); Filed by Georgia A. Nichols (Plaintiff); Michael A. Nichols (Plaintiff); Mindy K. Nichols (Plaintiff)

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  • 04/25/2022
  • DocketWitness List (JOINT); Filed by Georgia A. Nichols (Plaintiff); Michael A. Nichols (Plaintiff); Mindy K. Nichols (Plaintiff)

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  • 04/25/2022
  • DocketStatement of the Case (JOINT); Filed by Georgia A. Nichols (Plaintiff); Michael A. Nichols (Plaintiff); Mindy K. Nichols (Plaintiff)

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276 More Docket Entries
  • 02/27/2018
  • DocketMinute order entered: 2018-02-27 00:00:00; Filed by Clerk

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  • 02/27/2018
  • DocketMinute Order

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  • 02/27/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 12/21/2017
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 12/21/2017
  • DocketORDER TO SHOW CAUSE HEARING

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  • 12/21/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 12/21/2017
  • DocketOSC-Failure to File Proof of Serv; Filed by Clerk

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  • 12/15/2017
  • DocketSUMMONS

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  • 12/15/2017
  • DocketCOMPLAINT FOR LEGAL MALPRACTICE AND BREACH OF FIDUCIARY DUTY

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  • 12/15/2017
  • DocketComplaint; Filed by Georgia A. Nichols (Plaintiff); Michael A. Nichols (Plaintiff); Mindy K. Nichols (Plaintiff)

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Tentative Rulings

Case Number: ****7134 Hearing Date: October 5, 2022 Dept: 61

Plaintiffs Michael A. Nichols, Mindy K. Nichols, and Georgia A. Nichols’s Motion to Shrike or Tax Costs is DENIED.

I. MOTION TO TAX COSTS

“Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).” (California Rules of Court Rule 3.1700, subd. (b)(1).)

“Code of Civil Procedure section 1032, subdivision (b) [], guarantees prevailing parties in civil litigation awards of the costs expended in the litigation: ‘Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.’” (Williams v. Chino Valley Independent Fire Dist. (“Williams”) (2015) 61 Cal.4th 97, 100.).

“If the items on a verified cost bill appear proper charges, they are prima facie evidence that the costs, expenses and services therein listed were necessarily incurred.” (Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 266.) Although individual cost items are ordinarily challenged by a motion to tax costs, no cost-item is effectively put in issue by “mere statements” claiming them to be unreasonable. (Ibid.) However, where “it cannot be determined from the face of the cost bill whether the items are proper,” “the mere filing of a motion to tax costs may be a ‘proper objection’ to an item.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131, 132.)

Plaintiffs Michael A. Nichols, Mindy K. Nichols, and Georgia A. Nichols (Plaintiffs) object to several cost items contained in the memorandum of costs submitted by Defendants Geragos & Geragos, Mark J. Geragos, Ben J. Meiselas, and James Wong (Defendants), which seeks $74,073.38 in costs. Plaintiffs object that the costs are not substantiated by documentation and not itemized by which party incurred them. (Motion at pp. 3–4.) Plaintiffs further object that Defendants are not prevailing parties because Geragos & Geragos dismissed its cross-complaint. (Motion at p. 4.) They argue that the filing fees sought for summary judgment are unnecessary as the motion was not successful; that the deposition costs, reporter costs, and service of process costs include no receipts; and that the expert witness fees suffer from the same infirmity, and improperly include expenses for deposing Plaintiffs’ experts. (Motion at pp. 4–5.)

Defendants in opposition provide the receipts upon which the costs are based. (Lupton Decl. Exhs. 1a–1d, 2a, 4a–4p, 5a–5i, 8a–8e, 12a, 12b, 14.)

Plaintiff in reply argues only that the offer of compromise under Code of Civil Procedure 998, pursuant to which Defendants seek expert witness fees, was invalid because it was a single offer sent to multiple plaintiffs and conditioned upon their universal acceptance. (Reply at p. 2.)

The arguments that Plaintiffs raise in their motion are generally without merit. Plaintiffs’ primary objection is the lack of receipts for various cost items, but items on a verified cost bill, if apparently proper, are prima facie evidence of their necessity. (See Rappenecker, supra, 93 Cal.App.3d at p. 266.) In any event, Defendants have remedied the absence of documentation in their opposition by providing receipts, for which Plaintiffs offer no rebuttal in reply.

Defendants are also the prevailing parties in this action. A prevailing party for the purposes of an award of costs is “the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.” (Code Civ. Proc., 1032, subd. (a)(4).) Although Defendants dismissed their cross-complaint before trial, Defendants obtained a dismissal of Plaintiffs’ claims after an order granting their motion for nonsuit, and as such are both “a defendant in whose favor a dismissal is entered” and “a defendant where neither plaintiff nor defendant obtains any relief.” (See Zintel Holdings, LLC v. McLean (2012) 209 Cal.App.4th 431, 438 [“[A] defendant who defeats the plaintiff's claim on a complaint, but who recovers nothing on his [or her] cross-complaint against the plaintiff, is nevertheless a prevailing party entitled to costs.”].)

The sole argument of substance that Plaintiff advances is that the section 998 offer pursuant to which Defendants claim expert fees was an invalid offer sent to multiple plaintiffs, without apportionment between them:

In general, “ ‘a section 998 offer made to multiple parties is valid only if it is expressly apportioned among them and not conditioned on acceptance by all of them.’ ” (Burch v. Children's Hospital of Orange County Thrift Stores, Inc. (2003) 109 Cal.App.4th 537, 544, 135 Cal.Rptr.2d 404; see Weinberg v. Safeco Ins. Co. of America (2004) 114 Cal.App.4th 1075, 1086, 8 Cal.Rptr.3d 224 (Weinberg ) [“ ‘an offer to two or more parties, which is contingent upon all parties' acceptance, is not a valid offer under [998]’ ”]; Meissner v. Paulson (1989) 212 Cal.App.3d 785, 791, 260 Cal.Rptr. 826 (Meissner ) [“as a matter of law only an offer made to a single plaintiff, without need for allocation or acceptance by other plaintiffs, qualifies as a valid offer under section 998”].) There is an exception to this rule: where there is more than one plaintiff, a defendant may still extend a single joint offer, conditioned on acceptance by all of them, if the separate plaintiffs have a “unity of interest such that there is a single, indivisible injury.” (Weinberg, supra, at p. 1087, 8 Cal.Rptr.3d 224.)

(Peterson v. John Crane, Inc. (2007) 154 Cal.App.4th 498, 505.)

The offer that supports Defendants’ request for $29,900.33 in expert fees is indeed one made to all Plaintiffs collectively, for $28,750.00, without apportionment between them. (Lupton Decl. Exh. B.)

However, as Defendants argue in their supplemental briefing, the injury that Plaintiffs claimed in this matter, at the time that the section 998 offer was served in February 2021, was that the state-created danger had made them, as a family, fear for their lives and go into hiding. (Supp. Opp. At p. 3.) Because the injury that they asserted was not differentiated between them, Plaintiffs had a unity of interest and a single indivisible injury that made one section 998 offer appropriate.

Defendants note, additionally, that other section 998 offers were served that furnish an alternative basis to claim expert fees, such as offers served on each Plaintiff independently in October 2019. (Lupton Decl. 5–7, Exhs. E–G.) Although a second offer was later served, because the relief offered in the first offers exceed the relief that Plaintiffs obtained, “the trial court retains discretion to order payment of expert witness costs incurred from the date of the first offer.” (Martinez v. Brownco Construction Co. (2013) 56 Cal.4th 1014, 1026.) Thus the court agrees that these other offers provide a basis to seek expert fees.

Plaintiffs finally argue in a supplemental reply that Defendant cannot seek fees for deposing the experts designated by the opposing party. (Supp. Reply at p. 3.) This is incorrect: Section 998 “allows recovery of costs incurred for ‘the services of expert witnesses,’ without qualification as to the sponsoring side.” (Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 54.)

The motion to strike or tax costs is therefore DENIED.



Case Number: ****7134 Hearing Date: August 30, 2022 Dept: 61

I. MOTION TO TAX COSTS

“Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).” (California Rules of Court Rule 3.1700, subd. (b)(1).)

“Code of Civil Procedure section 1032, subdivision (b) [], guarantees prevailing parties in civil litigation awards of the costs expended in the litigation: ‘Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.’” (Williams v. Chino Valley Independent Fire Dist. (“Williams”) (2015) 61 Cal.4th 97, 100.).

“If the items on a verified cost bill appear proper charges, they are prima facie evidence that the costs, expenses and services therein listed were necessarily incurred.” (Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 266.) Although individual cost items are ordinarily challenged by a motion to tax costs, no cost-item is effectively put in issue by “mere statements” claiming them to be unreasonable. (Ibid.) However, where “it cannot be determined from the face of the cost bill whether the items are proper,” “the mere filing of a motion to tax costs may be a ‘proper objection’ to an item.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131, 132.)

Plaintiffs Michael A. Nichols, Mindy K. Nichols, and Georgia A. Nichols (Plaintiffs) object to several cost items contained in the memorandum of costs submitted by Defendants Geragos & Geragos, Mark J. Geragos, Ben J. Meiselas, and James Wong (Defendants), which seeks $74,073.38 in costs. Plaintiffs object that the costs are not substantiated by documentation and not itemized by which party incurred them. (Motion at pp. 3–4.) Plaintiffs further object that Defendants are not prevailing parties because Geragos & Geragos dismissed its cross-complaint. (Motion at p. 4.) They argue that the filing fees sought for summary judgment are unnecessary as the motion was not successful; that the deposition costs, reporter costs, and service of process costs include no receipts; and that the expert witness fees suffer from the same infirmity, and improperly include expenses for deposing Plaintiffs’ experts. (Motion at pp. 4–5.)

Defendants in opposition provide the receipts upon which the costs are based. (Lupton Decl. Exhs. 1a–1d, 2a, 4a–4p, 5a–5i, 8a–8e, 12a, 12b, 14.)

Plaintiff in reply argues only that the offer of compromise under Code of Civil Procedure 998, pursuant to which Defendants seek expert witness fees, was invalid because it was a single offer sent to multiple plaintiffs and conditioned upon their universal acceptance. (Reply at p. 2.)

The arguments that Plaintiffs raise in their motion are generally without merit. Plaintiffs’ primary objection is the lack of receipts for various cost items, but items on a verified cost bill, if apparently proper, are prima facie evidence of their necessity. (See Rappenecker, supra, 93 Cal.App.3d at p. 266.) In any event, Defendants have remedied the absence of documentation in their opposition by providing receipts, for which Plaintiffs offer no rebuttal in reply.

Defendants are also the prevailing parties in this action. A prevailing party for the purposes of an award of costs is “the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.” (Code Civ. Proc., 1032, subd. (a)(4).) Although Defendants dismissed their cross-complaint before trial, Defendants obtained a dismissal of Plaintiffs’ claims after an order granting their motion for nonsuit, and as such are both “a defendant in whose favor a dismissal is entered” and “a defendant where neither plaintiff nor defendant obtains any relief.” (See Zintel Holdings, LLC v. McLean (2012) 209 Cal.App.4th 431, 438 [“[A] defendant who defeats the plaintiff's claim on a complaint, but who recovers nothing on his [or her] cross-complaint against the plaintiff, is nevertheless a prevailing party entitled to costs.”].)

The sole argument of substance that Plaintiff advances is one that Defendants have not had the opportunity to address, because it is submitted only in reply. It is the argument, supported by some authority, that Defendants’ section 998 offer — which Plaintiffs reference in their original motion (Motion at p. 5) — was an invalid offer sent to multiple plaintiffs, without apportionment between them:

In general, “ ‘a section 998 offer made to multiple parties is valid only if it is expressly apportioned among them and not conditioned on acceptance by all of them.’ ” (Burch v. Children's Hospital of Orange County Thrift Stores, Inc. (2003) 109 Cal.App.4th 537, 544, 135 Cal.Rptr.2d 404; see Weinberg v. Safeco Ins. Co. of America (2004) 114 Cal.App.4th 1075, 1086, 8 Cal.Rptr.3d 224 (Weinberg ) [“ ‘an offer to two or more parties, which is contingent upon all parties' acceptance, is not a valid offer under [998]’ ”]; Meissner v. Paulson (1989) 212 Cal.App.3d 785, 791, 260 Cal.Rptr. 826 (Meissner ) [“as a matter of law only an offer made to a single plaintiff, without need for allocation or acceptance by other plaintiffs, qualifies as a valid offer under section 998”].) There is an exception to this rule: where there is more than one plaintiff, a defendant may still extend a single joint offer, conditioned on acceptance by all of them, if the separate plaintiffs have a “unity of interest such that there is a single, indivisible injury.” (Weinberg, supra, at p. 1087, 8 Cal.Rptr.3d 224.)

(Peterson v. John Crane, Inc. (2007) 154 Cal.App.4th 498, 505.)

The offer that supports Defendants’ request for $29,900.33 in expert fees is indeed one made to all Plaintiffs collectively, for $28,750.00, without apportionment between them. (Lupton Decl. Exh. B.) Thus this argument appears to possess some merit. But because Defendants have not had an opportunity to defend their section 998 offer against this argument, however, fairness dictates that they not have their fee request dismissed without an opportunity to reply. (See Tellez v. Rich Voss Trucking, Inc. (2015) 240 Cal.App.4th 1052, 1066 [holding that fairness requires arguments first raised in reply “not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument”].)

Accordingly, hearing on the motion is CONTINUED to allow Defendants to file a supplemental brief addressing the sufficiency of their section 998 offer.



Case Number: ****7134 Hearing Date: May 10, 2022 Dept: 61

I. MOTION TO BIFURCATE

The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action . . . or of any separate issue . . . .” (Code Civ. Proc., 1048, subd. (b).) Additionally, “[t]he court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order . . . that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case . . . .” (Code Civ. Proc., 598.)

It is within the discretion of the court to bifurcate issues or order separate trials of actions, such as for breach of contract and bad faith, and to determine the order in which those issues are to be decided.” (Royal Surplus Lines Ins. Co., Inc. v. Ranger Ins. Co. (2002) 100 Cal.App.4th 193, 205.) “The major objective of bifurcated trials is to expedite and simplify the presentation of evidence.” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 888.)

Defendants here move to bifurcate trial into two phases: the first in which Plaintiffs try the merit of their underlying civil rights claims, and the second in which the remaining elements of legal malpractice are tried. (Motion at p. 2.) The justification for this approach comes from the well-recognized need for a “trial-within-a-trial” in legal malpractice cases, in order to establish the plaintiff’s damages:

In the legal malpractice context, the elements of causation and damage are particularly closely linked. The plaintiff must prove, by a preponderance of the evidence, that but for the attorney's negligent acts or omissions, he would have obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred. This standard requires a ‘trial-within-a-trial’ of the underlying case, in which the malpractice jury must decide what a reasonable jury or court would have done if the underlying matter had been tried instead of settled. This method is the most effective safeguard yet devised against speculative and conjectural claims. It is a standard of proof designed to limit damages to those actually caused by a professional's malfeasance.

It is not enough for [the plaintiff] to simply claim that it was possible to obtain a better settlement or a better result at trial. The mere probability that a certain event would have happened will not furnish the foundation for malpractice damages. Damage to be subject to a proper award must be such as follows the fact complained of as a legal certainty. In other words, the plaintiff must show that he would certainly have received more money or had to pay less in settlement or at trial.

(Namikas v. Miller (2014) 225 Cal.App.4th 1574, 1582, internal quotation marks, alterations, and citations omitted.)

Here, Defendants have obtained summary adjudication on the viability Plaintiffs’ underlying claims, save for one claim for state-created danger. Thus they argue that if trial is first held on the viability of this single remaining claim, it may obviate the necessity of further proceedings regarding the standard of care, the breach thereof, and concomitant expert testimony. (Motion at p. 8.) Defendants further argue that bifurcating trial in this way would allow the jury to clearly distinguish between the issues presented and avoid information-overload. (Ibid.)

Plaintiffs in opposition argue that bifurcation is unnecessary and improper, as the facts of the underlying claim will already occupy the bulk of the trial, meaning that little time would be saved by trying them first. (Opposition at p. 2.) Plaintiffs also argue that issues of liability are intertwined with damages, given Defendants’ communications discussing the strength of the underlying case. (Opposition at p. 3.) Plaintiffs also argue that jury confusion could result from bifurcation, since it would eliminate issues of Defendants’ wrongdoing from the first phase of trial, and jurors might not understand why such issues were not being considered in a malpractice case. (Opposition at pp. 2–3.)

Defendants’ argument is the more persuasive. Contrary to Plaintiffs’ argument, the issues of liability and damages here are separate affairs, and Defendants’ communications regarding the strength of Plaintiffs’ underlying claims do not render the issues so intertwined as to make separate trials impracticable. Nor is trial on issues of duty and breach to be so truncated as Plaintiffs argue, given that both sides have designated experts to testify concerning the standard of care and Plaintiffs’ emotional distress. (Reply at pp. 2–3.) Finally, juror confusion could best be avoided by bifurcation of the “trial-within-a-trial” from the malpractice claim itself, with an appropriate explanation to the jurors of the reason for the bifurcation.

The motion is therefore GRANTED.



Case Number: ****7134    Hearing Date: June 30, 2020    Dept: 61

Plaintiffs Michael A. Nichols, Mindy K. Nichols, and Georgia A. Nichols’s Pitchess Motion is GRANTED in part. Production of Rae Fernandez’s complaints shall be limited to those related to her treatment of confidential informants, her involvement in warrant-based searches, and alleged thefts. The court will limit disclosure following in-camera review to information related to the conduct described above. Plaintiffs will not be permitted in the in camera proceeding, only the documents ordered disclosed shall be disclosed, a compliance date will be provided, and a protective order shall issue upon any order of disclosure limiting the use of the documents to these proceedings.

PITCHESS MOTION

Evid. Code section 1043, subd. (a) requires that a party seeking disclosure of police officer “personnel records” file a particular motion, a Pitchess motion. (Cf. Pitchess v. Superior Court (1974) 11 Cal.3d 531.) “Personnel records” are defined as “primary records specific to each peace or custodial officer's employment, including evaluations, assignments, status changes, and imposed discipline.” (Pen. Code, ; 832.5, subd (d)(1).)

The Pitchess provisions “take precedence over the general discovery rules outlined in the Code of Civil Procedure.” (Davis v. City of Sacramento (1994) 24 Cal.App.4th 393, 400.)

Evid. Code section 1043, subd. (b) details what a Pitchess motion shall include:

(1) Identification of the proceeding in which discovery or disclosure is sought, the party seeking discovery or disclosure, the peace or custodial officer whose records are sought, the governmental agency which has custody and control of the records, and the time and place at which the motion for discovery or disclosure shall be heard. (2) A description of the type of records or information sought. [And] (3) Affidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records.

“A finding of ‘good cause’ under section 1043, subdivision (b) is only the first hurdle in the discovery process. Once good cause for discovery has been established, section 1045 provides that the court shall then examine the information ‘in chambers’ in conformity with section 915 (i.e., out of the presence of all persons except the person authorized to claim the privilege and such other persons as he or she is willing to have present), and shall exclude from disclosure several enumerated categories of information, including: (1) complaints more than five years old, (2) the ‘conclusions of any officer investigating a complaint . . .’ and (3) facts which are ‘so remote as to make disclosure of little or no practical benefit.’” (City of Santa Cruz v. Municipal Court (“Santa Cruz”) (1989) 49 Cal.3d 74, 83.)

“Section 1043 clearly requires a showing of ‘good cause’ for discovery in two general categories: (1) the ‘materiality’ of the information or records sought to the “subject matter involved in the pending litigation,” and (2) a ‘reasonable belief’ that the governmental agency has the ‘type’ of information or records sought to be disclosed.” (Santa Cruz, supra, 49 Cal.3d at p. 83.) Courts have described that as a “relatively low threshold” for discovery, but have also noted that section 1045’s protective provisions offset that low threshold. (Id. at p. 83–84.)

Plaintiffs seek production of the following documents from the Palm Springs Police Department (“PSPD”), each limited to the five years prior to December 31, 2013:

  1. Personnel, administrative, or criminal complaints concerning Officer Rae Fernandez (“Fernandez”);

  2. Officer Fernandez’s performance evaluations;

  3. Fernandez’s ethical training records;

  4. Background investigation and personal history statement for Fernandez;

  5. Records concerning Fernandez’s termination from PSPD;

Plaintiffs argue that Fernandez’s misconduct formed an essential part of their underlying civil rights action against Palm Springs, in which they would have prevailed but for Defendants’ malpractice. (Motion at pp. 7–8.) Plaintiffs reason that, in order to show that Defendants’ negligence caused their damage, they have to prove the merits of the underlying case. (Motion at p. 12.) “When a client seeks to recover damages for his attorney's negligence in the prosecution or defense of the client's claim, the client must prove causation-that but for that negligence a better result could have been obtained in the underlying action.” (Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 973, internal quotation marks omitted.) Thus “[p]roof that [plaintiff] would have prevailed in the underlying [action] required a determination of the merits of that underlying proceeding in the malpractice trial.” (Ibid.; see also Kemper v. County of San Diego (2015) 242 Cal.Ap.4th 1075, 1089–90 [a malpractice plaintiff must put on a “case-within-a-case” to show causation of damages].) Thus the materials in Fernandez’s personnel file will reveal, Plaintiffs hope, the culpability of PSPD, and the viability of their now-defunct civil rights claims. (Motion at pp. 12–13.)

PSPD argues that Plaintiffs have failed to articulate what their precise causes of action were in the underlying action, and thus have failed to show that the documents requested would be useful to prove the claims. (Opposition at pp. 6–8.) PSPD further argues that the categories of documents are not limited to the kind of misconduct that Plaintiffs allege against Fernandez, and are thus overbroad. (Opposition at pp. 8–9.) PSPD also argues that Plaintiffs cannot seek documents related to excessive force without producing a police report under Evidence Code ; 1046. (Opposition at p. 10.)

PSPD’s argument as to the vagueness of Plaintiffs’ underlying causes of action is unpersuasive. PSPD’s opposition itself provides a succinct summation of the alleged underlying conduct for which Plaintiffs seek corroboration:

Here, Plaintiffs have alleged that Officer Fernandez was involved in a scheme perpetrated by her husband, Officer Gil Fernandez, in which he filed affidavits in support of a search warrant for Plaintiffs' business and home that knowingly contained false information stating Plaintiffs were involved in trafficking drugs, which led to Plaintiffs' false arrest and the seizure of money and other property. Further, Plaintiffs allege that Officer Fernandez stole personal property from Plaintiffs, including an expensive mirror, and disclosed Plaintiffs' status as confidential police informants to local gang members in violation of PSPD policy.

(Opposition at pp. 8­­–9.) Plaintiffs thus may seek information regarding Fernandez’s similar treatment of citizens and informants.

PSPD is correct, however, that a broad inquiry into all prior officer misconduct or civil rights complaints is overbroad. “[A] showing of good cause must be based on a discovery request which is tailored to the specific officer misconduct that is alleged. Thus, when a defendant asserts that his confession was coerced, a discovery request that seeks all excessive force complaints against the arresting officer is overly broad[.] [I]nstead only complaints by persons who alleged coercive techniques in questioning are relevant.” (California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1021, internal citations, quotation marks, and alterations omitted.) Thus Plaintiffs are not entitled, as they suggest in Reply, to all complaints suggesting Fernandez’s “pattern and practice of violating citizens’ civil rights.” (Reply at p. 4.) They are rather entitled to a narrower scope of complaints: those related to Fernandez’s treatment of confidential informants, her involvement in warrant-based searches, and her alleged thefts. (Reply at p. 4.)

Good cause supports the production of the other categories of information sought, at least for the purpose of in-camera review. Performance evaluations, training records, background information known to PSPD, and Fernandez’s termination records, may contain information relevant to a pattern of Fernandez’s conduct (defined narrowly as that similar to the conduct alleged in the underlying civil rights case) and PSPD’s knowledge of same. Plaintiffs’ explanation of their theory of the case has met the “low threshold” of showing good cause for these records. (Santa Cruz, supra, 49 Cal.3d at pp. 83–84.) The court via in-camera review may winnow the documents ultimately to be produced to those of practical benefit to Plaintiffs’ case by reference to their articulated theory of Fernandez’s misconduct, i.e. those related to Fernandez’s treatment of confidential informants, her involvement in warrant-based searches, and her alleged thefts, if any.

PSPD finally argues that the in-camera hearing must be conducted outside the presence of Plaintiffs and their counsel (See Evid. Code 915, subd. (b)), that the court must thereafter disclose only the documents deemed worthy of disclosure, and not reveal the scope of the information not disclosed (See Herrera v. Superior Court (1985) 172 Cal.App.3d 1159, 1163), that that the court should provide a compliance date for disclosure reasonably into the future, to allow PSPD time to potentially seek a writ of mandate, and that a protective order should be entered directing that the information disclosed be used only in this proceeding. (Opposition at pp. 10–12; see Alford v. Superior Court (2003) 29 Cal.4th 1033, 1042 [“[B]ecause disclosure of information contained in such records is permitted only on a showing of materiality to a particular case, to interpret the statute as allowing a defendant to share such information with other defendants would defeat the purpose of the balancing process.”].) These arguments are supported by authority and Plaintiffs have not objected to them. Accordingly, Plaintiffs will not be permitted in the in camera proceeding, only the documents ordered disclosed will be disclosed, a compliance date will be provided, and a protective order shall issue upon any order of disclosure limiting the use of the documents to these proceedings.

The Motion is therefore GRANTED in part, as to documents related to Fernandez’s treatment of confidential informants, her involvement in warrant-based searches, and her alleged thefts, if any.

Plaintiffs to give notice.

Defendants Geragos & Geragos, Mark J. Geragos, Ben J. Meiselas, Stephen J. Wiard, David GAmmill, and James Wong’s Motion for Summary Judgment or Adjudication is GRANTED as follows:

  • GRANTED as to the issue of Defendants’ duty to prosecute claims based on the purported invalidity of the search warrant executed on July 17, 2012;

  • GRANTED as to the issue of Defendants’ duty to prosecute Plaintiffs’ Monell claim;

  • GRANTED as to the issue of Defendants’ duty to prosecute state law tort and breach of contract claims in the underlying litigation;

  • GRANTED as to the issue of Defendants’ duty to seek recovery of the cash seized during the search;

  • GRANTED as to all claims alleged against David Gammill;

  • DENIED as to Defendants’ duty to prosecute Plaintiffs’ state-created danger claim.

SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. ; 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. ; 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. ; 437c, subd. (p)(2).)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff 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. (Ibid.) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

  1. LEGAL MALPRACTICE & BREACH OF FIDUCIARY DUTY

“The failure to provide competent representation in a civil or criminal case may be the basis for civil liability under a theory of professional negligence. In a legal malpractice action arising from a civil proceeding, the elements are (1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney’s negligence.” (Jones v. Whisenand (2017) 8 Cal.App.5th 543, 550.)

“In a litigation malpractice action, the plaintiff must establish that but for the alleged negligence of the defendant attorney, the plaintiff would have obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred. The purpose of this requirement, which has been in use for more than 120 years, is to safeguard against speculative and conjectural claims. It serves the essential purpose of ensuring that damages awarded for the attorney's malpractice actually have been caused by the malpractice.” (Viner v. Sweet (2003) 30 Cal.4th 1232, 1241.)

And as for fiduciary duty, it is the plaintiff’s burden to establish “a reasonable basis for the conclusion that it was more likely than not the conduct of the defendant was a substantial factor in the result.” (Knutson v. Foster (2018) 25 Cal.App.5th 1075, 1094.)

Defendants argue that Plaintiffs’ claims for legal malpractice and breach of fiduciary duty fail because Plaintiffs’ claims were infirm from no reason owing to Defendants’ actions. (Motion at pp. 16–17.) Defendants subdivide Plaintiffs’ claims into the following and levy arguments against the feasibility of each of them: (1) state-created danger claim based on Plaintiffs’ alleged exposure as informants; (2) a section 1983 claim based on a warranted search; (3) a Monell claim against the City of Palm Springs; (4) state court claims for breach of contract, defamation, and others; and (5) a claim for seized $197,000. (Motion at pp. 11–12.)

“Because causation is a question of fact for the jury, it ordinarily cannot be resolved on summary judgment. In legal malpractice claims, the absence of causation may be decided on summary judgment only if, under undisputed facts, there is no room for a reasonable difference of opinion.” (Namikas v. Miller (2014) 225 Cal.App.4th 1574, 1583, internal quotation marks omitted.)

Plaintiffs argue that Defendants have failed to define the standard of care, and thus have derpvied the court of “any basis on which to grant the motion.” (Opposition at p. 13.) But it is not necessary to define the standard of care in order to discuss causation for the purposes of summary judgment. (See Namikas, supra, 225 Cal.App.4th at p. 1587–88 [affirming legal malpractice summary judgment ruling based on cauasation alone].) The court may proceed to address Defendants’ arguments.

1. State-Created Danger Claim

Plaintiffs’ complaint in the underlying action accused Palm Springs and officers of putting Plaintiffs in a “state-created danger” by exposing them, as informants, to the reprisals of criminals. (RJN Exh. 1, ¶ 37.)

“It is . . . well established that, although the state's failure to protect an individual against private violence does not generally violate the guarantee of due process, it can where the state action affirmatively places the plaintiff in a position of danger, that is, where state action creates or exposes an individual to a danger which he or she would not have otherwise faced.” (Kennedy v. City of Ridgefield (9th Cir. 2006) 439 F.3d 1055, 1061, internal quotation marks, citations, and alterations omitted.)

Defendants argue that the claim based on the above doctrine in the underlying action was doomed to fail because of the qualified immunity that state officials enjoy from constitutional suit. (Motion at p. 18.) “[W]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken.” (Anderson v. Creighton (1987) 483 U.S. 635, 639, internal citations and quotation marks omitted.)

The fact that the right violated must be “clearly established” for the purposes of qualified immunity, Defendants argue, means that Plaintiffs’ claims based on the dangers of serving as an informant fail, because identifying a confidential informant in a police report is not established as a state-created danger. (Motion at p. 18.) Defendants rely on the appellate decision upholding summary judgment against Plaintiffs’ claims in the underlying action against Rae Fernandez, in which the court stated:

During the events in question, there was no established law that a police officer violates the state-created danger doctrine when she writes in a police report that she knew certain individuals and worked with them on a case, even when those individuals happen to be confidential informants. Even if Rae filing the police report affirmatively and with deliberate indifference placed Plaintiffs in danger [they] would not otherwise have faced, a reasonable police officer would not have known that this specific conduct was unconstitutional based on existing case law.

(Nichols v. Fernandez (9th Cir. 2017) 686 Fed.Appx. 532, 534–35, internal quotation marks, citations, and alterations omitted.) Defendants point to other cases involving criminal informants, in which it was held that government officials were not liable for dangers faced by criminal informants that the informants had themselves voluntarily undertaken. (See Gatlin ex rel. Estate of Gatlin v. Green (8th Cir. 2004) 362 F.3d 1089, 1093–94; Summar on behalf of Summar v. Bennett (6th Cir. 1998) 157 F.3d 1054, 1059.)

In their responses to interrogatories, Plaintiffs stated that officers had demanded they continue in their role as informants despite Plaintiffs’ protestations, and in a July 17, 2012 meeting with business owners and gang members had disclosed Plaintiffs’ identities as confidential informants, thus placing them in danger. (Motion Exh. E.) Defendants argue that this evidence, even had it been submitted in the underlying matter, would not have altered the outcome, because Plaintiffs had voluntarily exposed themselves to the risk of disclosure by becoming confidential informants. (Motion at p. 19.)

Plaintiffs argue, however, that the scope of unlawful conduct analyzed by the district and appellate courts was limited by Defendants’ negligence. Specifically, Plaintiffs note that the conduct considered for potential violations was limited to that occurring on or after July 25, 2012, two years before Defendants filed the case on July 25, 2014. (Opposition at pp. 14–15; Exh. D.) Thus if Defendants had filed the case earlier, the case would have encompassed other instances of officer misconduct, such as a July 20, 2012 instance in which officer Rae Fernandez asked Plaintiffs to drive a dangerous suspect to another location in order for that suspect to be arrested, or the July 17, 2012 meeting that Defendants describe in their own motion. (Opposition at pp. 14–15.) Plaintiffs also note that the district court, in granting summary judgment against them, had chosen to disregard Plaintiffs’ declarations because they were not signed under penalty of perjury, a procedural defect that Plaintiffs’ lay at the feet of Defendants. (Opposition at pp. 14–15; Exh. E at pp. 6–7.) Plaintiffs also argue that the “novel” nature of their claims was never disclosed to them. (Michael Nichols Decl. ¶ 26.)

Defendants’ qualified immunity argument is of limited effectiveness. The court in Nichols v. Fernandez did hold that Rae Fernandez’s conduct was protected by qualified immunity, but as the court noted, this analysis was limited to Fernandez’s alleged activity in disclosing Plaintiffs’ names in a police report, which was released only to the district attorney, the probation office, and Plaintiffs themselves. (Nichols, supra, 686 Fed.Appx. at pp. 534–35.) Both Defendants and Plaintiffs acknowledge that other alleged police misconduct was potentially at issue.

Defendants argue that none of the other conduct alleged of the police defendants in the underlying case could have supported liability because plaintiffs voluntarily assumed the risk of being informants. Yet Defendants’ authority states only that criminal informants assume the risks inherent in that role and which they voluntarily undertake. (See Doe v. City of Phoenix (D. Ariz. 2009) 2009 WL 4282275, at p. *5.) That same authority allows informants to bring suit against state officers who, by their affirmative conduct and with deliberate indifference, increase the risks for which an informant knowingly volunteers . (Id. at p. *5.) Defendants present no authority for the proposition that an officer’s disclosure of an informant’s identity during a public meeting constitutes a risk that an informant voluntarily undertakes. And even though it may be argued that Plaintiffs voluntarily agreed to transport a suspect to their point of arrest, Plaintiffs alleged in the underlying complaint that said transport was not undertaken voluntarily, but in mind of the officers’ threats of reprisals for failure to cooperate, and out of fear for same. (Opposition Exh. C at p. 5.) Thus either alleged act could have supported a claim under the state-created danger doctrine. Summary adjudication is DENIED as to these issues.

2. Search & Seizure

Defendants next argue that Plaintiffs’ section 1983 claim for unconstitutional search and seizure, which Plaintiffs claim Defendants omitted from the underlying complaint, would have failed, because the warrant was issued based upon a presumptively valid affidavit of probable cause. (Motion at pp. 20–21.) There is a presumption of validity for affidavits supporting search warrants. (See Franks v. Delaware (1978) 438 U.S. 154, 171.) “This presumption can be overcome if the party challenging the affidavit makes allegations of deliberate falsehood or reckless disregard for the truth, and those allegations are accompanied by an offer of proof. If these requirements are met, the allegedly false or reckless material must be set aside. If there remains sufficient content in the affidavit to support probable cause, the officer is qualifiedly immune.” (Forster v. County of Santa Barbara (9th Cir. 1990) 896 F.2d 1146, 1148.) “A police officer is qualifiedly immune from a suit for damages arising from an allegedly illegal arrest or search unless a reasonably well-trained officer in [his] position would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant.” (Ibid.)

Defendants argue that Plaintiffs had no evidence to introduce to overcome the presumptive validity of the warrant that led to the search in this case. (Motion at p. 21.) Defendants likewise argue that, because the search was valid, there could have been no claims for detentions or property damage that took place during the search. (Motion at pp. 20–21, citing Dalia v. U.S. (1979) 441 U.S. 238, 258 [“[O]fficers executing search warrants on occasion must damage property in order to perform their duty.”]; Michigan v. Summers (1981) 452 U.S. 692, 703 [detention of person whose property was subject to warranted search was valid while the search took place].)

Plaintiffs argue that evidence exists that could have overcome the presumptive validity of the search warrant. First, they point to the testimony of police practices expert Tom Yu, who testifies that the affidavit supporting the warrant at issue related the account of a confidential informant who stated he had performed a drug deal with “Mike,” without positively identifying whether Mike was in fact Michael Nichols. (Opposition at p. 17.) Plaintiffs also argue that the falseness of the warrant affidavit is demonstrated by the subsequent failure to turn up any illegal drugs on the properties search. (Opposition at p. 17.)

Plaintiffs’ evidence is insufficient to constitute a substantial showing that the affidavit used to obtain the search warrant in the underlying case contained false statements. In determining whether an affiant made intentionally or recklessly false statements to obtain a warrant, courts look for evidence that the affiant “in fact entertained serious doubts as to the truth of the affidavits or had obvious reasons to doubt the accuracy of the information contained therein.” (U.S. v. Clapp (8th Cir. 1995) 46 F.3d 795, 801.) Here, the only fact that Plaintiffs claim support the falseness of the affidavit that were actually known to the affiant, Gil Fernandez, at the time of writing the affidavit, is his purported failure to positively identify Michael Nichols as the counter-party to a controlled drug buy. (Yu Decl. ¶¶ 8–9.) But there was no such failure in the affidavit; the confidential informant upon which the officer relied did not, as Plaintiffs imply, merely refer to the counter-party as “Mike,” but repeatedly identified Michael Nichols as the owner of the pawn shop described in the complaint, and indeed offered a physical description of Michael Nichols. (Motion Exh. S-2.) Likewise, the affidavit contains a description of the controlled buy in which the informant is searched for all goods before entering the business, is surveilled entering Plaintiffs’ business, and thereafter emerges with drugs they had not previously possessed, and which they stated they had obtained from Michael Nichols. (Motion Exh. S-2.) Although Plaintiffs point to the subsequent failure of the search to find evidence of illegal drugs, Plaintiffs present no evidence that this absence would have been known to the affiant officer when he made the affidavit. (Opposition at pp. 17–18.) Plaintiffs present no evidence that any statements contained in the warrant affidavit were false. Accordingly, Defendants are correct that no triable issues of fact exist as to whether they could have prevailed on this claim in the underlying action.

However, this argument addresses only Plaintiffs’ claims arising from the defectiveness of the warrant and its supporting affidavit. Defendants acknowledge that Plaintiffs levy other challenges to the adequacy of their representation, based not merely on the adequacy of the warrant but damages caused to their home during the search, as well as Mindy and Georgia Nichols' detention during same. (Motion at p. 20.) Defendants articulate no legal rationale as to how the validity of the warrant affected their ability to prosecute these latter claims.

Accordingly, summary adjudication is GRANTED as to the issue of Defendants’ duty to prosecute claims based on the purported invalidity of the search warrant executed on July 17, 2012.

3. Monell Claim

Defendants argue that Plaintiffs’ Monell claims against Palm Springs could not have prevailed because such claims against local governments under section 1983 require evidence of a policy or custom of unconstitutional conduct, and Plaintiffs have no such evidence here. (Motion at pp. 21–22; Monell v. Dept. of Social Services of City of New York (1978) 436 U.S. 658, 694 [“[I]t is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under ; 1983.”].) Defendants rely on Plaintiffs interrogatory responses, which contain a conclusory statement that the alleged officer misconduct arose from Palm Springs policies and procedures. (Motion Exh. K at p. 12.) They also point to the testimony of Rae Fernandez, who stated that there was no Palm Springs policy against disclosing informant identities. (Motion Exh. Q at pp. 14–15, 68–69.)

Plaintiffs counter that Defendants’ negligently failed to prosecute the Monell claim because they never mentioned the Coachella Valley Narcotics Task Force (CVNTF) in its Complaint, even though it had taken part in the allegedly improper search and seizure. (Opposition at p. 21.) But Defendants correctly argue that the Monell claims was dismissed, not because it was alleged against the wrong defendant, but because they lacked — and still lack — facts or evidence of a policy of constitutional violations. (Reply at p. 7.) Even as Plaintiffs contend that Defendants sued the wrong entity, they omit from their response the facts that would have rendered suit against that entity any less infirm than the suit against Palm Springs.

Accordingly, the motion is GRANTED as to the issue of Defendants’ duty to prosecute Plaintiffs’ Monell claim.

4. Breach of Contract & Tort

Defendants argue that all of Plaintiffs’ potential state-law tort and breach of contract claims, which Defendants did not pursue, were barred before Plaintiffs contacted them because Plaintiffs failed to present their claims to the government within applicable time periods. (Motion at pp. 22–23.)

Government Code ; 945.4 states that “no suit for money or damages may be brought against a public entity . . . until a written claim therefor has been presented to the public entity,” and Government Code ; 911.2 states that all claims for personal injury or property damage must be presented “not later than six months after the accrual of the cause of action.” (Gov. Code ; 911.2, subd. (a).) Claims barred against a public entity are barred against public employees. (Gov. Code ; 950.2.)

Defendants argue that Plaintiffs did not contact Defendants until January 2014, more than one year after Plaintiffs’ state law torts accrued. (Motion at p. 23.)

Defendants also argue that any claims for defamation and or fraud would have been barred by Government Code ; 818.8, which provides immunity for public entities for the misrepresentations of their employees, and Government Code ; 822.2, which provides qualified immunity for public employees unless they are guilty of actual fraud, corruption, or actual malice. (Motion at p. 24, n. 11.)

In opposition, Plaintiffs submit no argument against the above.

Accordingly, Defendants’ Motion for Summary Adjudication is GRANTED as to the issue of Defendants’ duty to prosecute state law tort and breach of contract claims in the underlying litigation.

5. Money Seized

Defendants argue that they cannot be liable for the failure to recoup money seized from Plaintiffs during a search because any such claim would have been barred before they were retained. (Motion at p. 24.)

Defendants argue that if a party wishes to make a judicial claim for seized assets, they must file a notice of claim challenging the seizure within a certain time after the DEA issues a notice of same. (18 U.S.C. ; 983, subd. (a)(2)(B).) Failure to contest the forfeiture within the deadline results in the forfeiture becoming final. (18 U.S.C. ; 1609, subd. (a).) But once a claim is filed, the seizing agency becomes obligated to file a complaint for forfeiture in court, or surrender the property. (18 U.S.C. ; 983, subd. (a)(3)(A).)

Defendants argue that Plaintiffs’ former counsel elected a different remedy, whereby the claimant seeking return of their property files a petition for remission or mitigation of forfeiture with the agency, and the ruling official issues a ruling on the petition. (See 28 C.F.R. ; 9.3.) Plaintiffs received notices of the seizure in 2012, and their petitions were denied in April 2014, after the time to seek judicial relief had passed. (Motion at pp. 25–26.)

Plaintiffs in Opposition counter that it was not Defendants’ business to seek a restitution of money seized, but to claim the lost $200,000 as damages resulting from an illegal search and seizure. (Opposition at pp. 18–19.)

Based on the above, there is no dispute as to whether Defendants ought to have sought the restitution or recovery of cash seized. Accordingly, summary adjudication is GRANTED as to the issue of Defendants’ duty to seek recovery of the cash seized during the search.

B. DAVID GAMMILL

Defendants finally argue that no liability may exist against Defendant David Gammill because he was not employed at the relevant firm until after the alleged malpractice occurred, in January 2016. (Motion at p. 26.) Plaintiffs submit no argument as to Gammill’s culpability in the underlying conduct, and in their separate statement acknowledge that Gammill was not employed by G&G throughout trial court proceedings in the underlying action.

The Motion is therefore GRANTED as to all claims alleged against David Gammill.



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