Case 8:18-cv-01831-DOC-KES Document 91 Filed 10/08/19 Page 1 of 9 Page ID #:1160

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. SA CV 18-1831-DOC (KESx) Date: October 8, 2019

Title: MICHELLE SUZANNE HADLEY v. CITY OF ANAHEIM ET AL.

PRESENT:

THE HONORABLE DAVID O. CARTER, JUDGE

Deborah Lewman/Rolls Royce Paschal Not Present

Courtroom Clerk Court Reporter

ATTORNEYS PRESENT FOR ATTORNEYS PRESENT FOR

PLAINTIFF: DEFENDANTS:
None Present None Present

PROCEEDINGS (IN CHAMBERS): ORDER DENYING IN PART AND

GRANTING IN PART PLAINTIFF’S
MOTION FOR
RECONSIDERATION [62] AND
DENYING AS MOOT WITHOUT
PREJUDICE DEFENDANT DIAZ’S
MOTION TO DISMISS [65]

Before the Court is Plaintiff Michelle Suzanne Hadley’s Motion for

Reconsideration (“Motion”) (Dkt. 62) of the Court’s June 6, 2019, Order Granting in Part
with Prejudice and Granting in Part without Prejudice Defendant Ian Diaz’s (“Diaz” or
“Ian Diaz” or “Defendant”) Motion to Dismiss (“MTD Order”) (Dkt. 60). The Court
finds this matter appropriate for resolution without oral argument. Fed. R. Civ. P. 78;
L.R. 7-15. Having reviewed the moving papers and considered the parties’ arguments, the
Court GRANTS IN PART and DENIES IN PART Plaintiff’s Motion. As the Court
GRANTS IN PART Plaintiff’s Motion and provides leave to amend, the Court DENIES
AS MOOT WITHOUT PREJUDICE Defendant Diaz’s pending Motion to Dismiss the
Third Amended Complaint (Dkt. 65).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. SA CV 18-1831-DOC (KESx) Date: October 8, 2019

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I. Background
A. Facts

The following facts are taken from Plaintiff’s pleadings in the instant action. The
facts alleged in Plaintiff’s Second Amended Complaint (“SAC”) (Dkt. 52), as addressed
in the Court’s MTD Order, are largely the same as those alleged in the Third Amended
Complaint (“TAC”) (Dkt. 61), and thus these overlapping facts are incorporated by
reference into the instant Order. In sum, Plaintiff met and began dating Ian Diaz, who
was employed as a U.S. Marshal, in October 2013. SAC ¶ 37. Their relationship
gradually worsened as Diaz became controlling and began to badger Plaintiff to indulge
in sexual fantasies. Id. ¶ 43. Plaintiff eventually left Ian Diaz in August 2015. Id. ¶ 53.
After Plaintiff left Ian Diaz, Ian Diaz and his new wife, Angela Diaz, created fake email
accounts and social media profiles on behalf of Plaintiff, and falsely reported harassment
as well as violent behavior by Plaintiff to the Anaheim Police Department, which led to
Plaintiff’s two arrests. SAC ¶¶ 90, 121, 122–27, 132–37; see generally SAC.

Additionally, the following facts are drawn from Plaintiff’s TAC, and were
discovered by Plaintiff following review of body-camera footage produced by other
Defendants in this matter. Mot. at 14. On June 7, 2016, Angela and Ian Diaz made a 911
call falsely reporting that Plaintiff was harassing and stalking them. TAC ¶ 143. When
officers arrived at the Diaz residence, Ian Diaz made several statements to pressure
officers to arrest Plaintiff. Id. On June 13, 2016, Ian Diaz made several statements to
Anaheim Police Department officers to pressure officers to prosecute Plaintiff, including
falsely informing officers that Plaintiff posted a fake advertisement on Craigslist for
someone to rape Angela Diaz. Id. ¶¶ 145, 147, 150. On June 18, 2019, Ian Diaz again
made several statements to officers, so as to pressure and encourage prosecution of
Plaintiff. Id. ¶¶ 158–60.
B. Procedural History

Plaintiff originally filed the Complaint in Superior Court, County of Orange on

July 14, 2017 (Dkt. 1-1) against Defendants City of Anaheim (“City”), James Pewsey,
William Segletes, Michael Lee, Michael Cunha (collectively, “City Defendants”), Angela
Marie Diaz, and Ian Richard Diaz (collectively, “Defendants”). On October 11, 2018, the
City Defendants removed the Complaint to this Court. (Dkt. 1). Plaintiff filed the First
Amended Complaint (“FAC”) on December 21, 2018. (Dkt. 18). On March 4, 2019,
Defendant Ian Diaz filed a Motion to Dismiss the FAC (Dkt. 43), which Plaintiff opposed
(Dkt. 44) on March 14, 2019.
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CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. SA CV 18-1831-DOC (KESx) Date: October 8, 2019

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On March 15, 2019, Plaintiff filed a Motion to Amend the FAC (Dkt. 45). On
March 25, 2019, Defendant Diaz replied (Dkt. 47) and opposed Plaintiff’s Motion to
Amend the FAC (Dkt. 49). The Court granted Plaintiff’s Motion to Amend the FAC and
denied Defendant Diaz’s Motion to Dismiss the FAC as moot on March 25, 2019 (Dkt.
50).

Plaintiff filed the Second Amended Complaint (“SAC”) and it was adopted as the
operative Complaint on March 25, 2019 (Dkt. 52). In the SAC, Plaintiff brought three
claims against Defendant Diaz under state law: (1) False Imprisonment and False Arrest;
(2) Intentional Infliction of Emotional Distress; and (3) Malicious Prosecution. See
generally SAC.

On April 5, 2019, Defendant Diaz filed a Motion to Dismiss (Dkt. 51). On June 6,
2019, the Court Granted in Part with Prejudice and Granted in Part without Prejudice
Diaz’s Motion to Dismiss (“MTD Order”) (Dkt. 60). Specifically, the Court dismissed
with prejudice Plaintiff’s seventh claim for false arrest/false imprisonment, dismissed
with prejudice Plaintiff’s eleventh claim for intentional infliction of emotional distress
(“IIED”), and dismissed without prejudice Plaintiff’s twelfth claim for malicious
prosecution. In line with the Court’s MTD Order, on June 20, 2019, Plaintiff filed the
Third Amended Complaint (“TAC”) (Dkt. 61).

On July 5, 2019, Plaintiff filed the instant Motion for Reconsideration (“Motion”)
(Dkt. 62). Diaz opposed (“Opp’n”) (Dkt. 72) on August 19, 2019, and Plaintiff replied
(“Reply”) (Dkt. 75) on August 26, 2019.

II. Legal Standard

Federal Rule of Civil Procedure 60(b) “provides for reconsideration only upon a
showing of: (1) mistake, surprise, or excusable neglect; (2) newly discovered evidence;
(3) fraud; (4) a void judgment; (5) a satisfied or discharged judgment; or (6)
‘extraordinary circumstances’ which would justify relief.” School Dist. No. 1J,
Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (quoting Fuller v.
M.G. Jewelry, 950 F.2d 1437, 1442 (9th Cir. 1991)). In addition, Local Rule 7-18
provides that a motion for reconsideration of an order may be made only on the following
grounds:

(a) a material difference in fact or law from that presented to the Court before such
decision that in the exercise of reasonable diligence could not have been known to
the party moving for reconsideration at the time of such decision, or (b) the
emergence of new material facts or a change of law occurring after the time of
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CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. SA CV 18-1831-DOC (KESx) Date: October 8, 2019

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such decision, or (c) a manifest showing of a failure to consider material facts

presented to the Court before such decision.

L.R. 7-18. Local Rule 7-18 also states that “[n]o motion for reconsideration shall
in any manner repeat any oral or written argument made in support of or in opposition to
the original motion.” Id.

III. Discussion

In the instant Motion, Plaintiff argues that reconsideration of the Court’s MTD
Order is appropriate because (A) the Court failed to consider material facts regarding Ian
Diaz’s conduct apart from initiating a police investigation, and (B) new material facts
support reconsideration. See generally Mot. The Court addresses each argument in turn.
A. Clear Error or Failure to Consider Material Facts

Plaintiff argues that the Court wrongfully dismissed Plaintiff’s false arrest/false
imprisonment claim and Plaintiff’s IIED claim pursuant to Cal. Civ. Code § 47(b).
Plaintiff argues that Section 47(b) protects only communications related to an official
proceeding, such as statements made to law enforcement officers, but does not protect
either (1) noncommunicative conduct, or (2) communications unrelated to official
proceedings. Mot. at 8. Plaintiff contends that the SAC included facts outside of conduct
covered by Section 47(b), and thus that the Court incorrectly dismissed the false arrest
and IIED claims.1

False Arrest Claim

In Rusheen v. Cohen, 37 Cal. 4th 1048 (2006), the California Supreme Court
addressed the applicability of Section 47(b) when a plaintiff’s claims arise from both
protected communications and noncommunicative activity. The Court held that “if the
gravamen of the action is communicative, the litigation privilege extends to
noncommunicative acts that are necessarily related to the communicative conduct.” 37
Cal. 4th at 1065. “Stated another way, unless it is demonstrated that an independent,
noncommunicative, wrongful act was the gravamen of the action, the litigation privilege
applies” to the noncommunicative acts. Id. The facts of Rusheen are illustrative; the
defendant in that case had allegedly filed false declarations to obtain a default judgement

1
Plaintiff also argues that the Court failed to consider alleged conduct, such as Defendant’s creation of false email
accounts and fabrication of emails. Mot. at 10–12. However, the Court did not fail to consider such allegations from
the SAC; in fact, the Court held that both Defendant’s “fil[ing] of multiple false police reports,” and Defendant’s
“fabricat[ion of] fake emails as evidence,” were protected conduct under section 47(b). MTD Order at 9.
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CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. SA CV 18-1831-DOC (KESx) Date: October 8, 2019

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against the plaintiff. See id. at 1054. After obtaining the default judgement, the defendant
levied the plaintiff’s property to execute the judgment, and the plaintiff filed an action for
abuse of process. The plaintiff argued that the act of levying property was
noncommunicative, and therefore was not protected under section 47(b). Id. at 1061.
Still, the California Supreme Court disagreed, holding that even if the levying act was
noncommunicative, “the gravamen of the action was not the levying act, but the
procurement of the judgement based on the use of allegedly perjured declarations.” Id. at
1062. Because the filing of the allegedly perjured declarations was protected, all of the
plaintiff’s subsequent efforts to enforce the judgement, including levying property, were
protected as well. Id.

Here, the gravamen of Plaintiff’s cause of action for false imprisonment is

Defendant’s efforts to frame Plaintiff by providing false information to police, which, in
turn, is inherently communicative conduct. Plaintiff does not allege that her confinement
was caused simply by Diaz’s creation of fake email accounts and fabrication of emails.
Instead, Plaintiff’s false arrest claim entirely depends on her allegation that her
confinement was caused by Defendant’s communication of false evidence to law
enforcement, causing law enforcement to arrest Plaintiff. See SAC ¶¶ 129, 131, 136, 144,
163, 166 (alleging Ian Diaz falsely reported Plaintiff to the police in order to have her
arrested). Accordingly, Diaz’s conduct falls squarely within the absolutely immunity
established by Section 47(b) for a false arrest claim. As Plaintiff cannot state a claim for
false arrest against Diaz, leave to amend this claim would be futile, and is not
appropriate. See Garmon v. County of Los Angeles, 828 F.3d 837, 842 (9th Cir. 2016).

The cases cited by Plaintiff are readily distinguishable from the instant action. In
Kesmodel v. Rand, 119 Cal. App. 4th 1128, 1133, 1137 (2004), the defendant made a
citizen’s arrest of the plaintiff after defendant complained of plaintiff’s conduct to the
police, and the police declined to arrest plaintiff. The Court of Appeal held that the
citizen’s arrest was noncommunicative conduct that was not protected by the litigation
privilege. Id. at 1137. As Kesmodel predated Rusheen, the Court of Appeal did not
consider whether the defendant’s communications with law enforcement were the
gravamen of the action. Nevertheless, Kesmodel is consistent with the holding of
Rusheen. During the incident at issue in Kesmodel, the police informed the defendant that
they would not arrest the plaintiff based on the information provided by the defendant;
therefore, defendant’s decision to perform a citizen’s arrest could constitute an
“independent, noncommunicative, wrongful act” supporting the false imprisonment
claim. See Rusheen, 37 Cal. 4th at 1065.
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CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. SA CV 18-1831-DOC (KESx) Date: October 8, 2019

Page 6

In Hawran v. Hixson, 209 Cal. App. 4th 256, 263 (2012), the defendant issued a
press release and SEC 8-K filing about an internal investigation regarding the
mishandling of certain research and development results. The defendant issued the press
release after learning that the SEC had commenced its own investigation, and thus argued
the press release was protected by Section 47(b) because it was made in connection with
the SEC investigation. Id. at 264. In holding that the press release was not protected, the
Court of Appeal reiterated the California Supreme Court’s holding in Hagberg v. Cal.
Fed. Bank, 32 Cal. 4th 350 (2004) that “the critical question [in applying the official
proceeding privilege] is the aim of the communication, not the forum in which it takes
place. If the communication is made ‘in anticipation of or [is] designed to prompt official
proceedings, the communication is protected.’” Id. at 284 (quoting Hagberg, 32 Cal. 4th
at 368) (alterations in original). The Court of Appeal held that, although the press release
concerned the same subject matter as the SEC investigation, it did not achieve the objects
of or have a “necessary functional connection” to the investigation, in large part because
it supplemented a required regulatory disclosure. Id. at 286.

By contrast, here, the sole communications supporting Plaintiff’s causes of action

for false imprisonment, other than Defendant’s alleged statements to police, are
Defendant’s alleged communications with third parties in response to Craigslist ads.2
Unlike the alleged conduct at issue in Hawran, Diaz’s Craigslist-related communications
were part of his efforts to “prompt” a law enforcement investigation by framing Plaintiff,
and thus are protected by Section 47(b). See Dove Audio, Inc. v. Rosenfeld, Meyer &
Susman, 47 Cal. 4th 777, 781 (1996) (holding that communications between private
parties “preliminary to the institution of an official proceedings come within the privilege
of Civil Code section 47[b]”); see also Hagberg, 32 Cal. 4th at 362 (affirming holding in
Dove Audio).

Accordingly, the alleged conduct of Diaz falls squarely within the privilege
articulated by Section 47(b). For the reasons stated above, Court thus DENIES Plaintiff’s
Motion for Reconsideration with respect to her false arrest/false imprisonment claim.

IIED Claim

As currently alleged, Plaintiff’s IIED cause of action suffers from the same defect
as her false imprisonment/false arrest cause of action. Plaintiff alleges that Defendant
“engaged in outrageous conduct by framing [Plaintiff] for several crimes she did not

2
Plaintiff alleges that Defendant sent some emails to her own email address to “trick [Plaintiff]
into defaming [Defendant].” SAC ¶¶ 119, 120. However, it is not clear how these alleged
communications support Plaintiff’s causes of action for false imprisonment and IIED.
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CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. SA CV 18-1831-DOC (KESx) Date: October 8, 2019

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commit,” and “caused [her] to suffer emotional distress by making her the subject of a
police investigation which resulted in her being detained in jail. . . . ” SAC ¶¶ 255–56.
As currently alleged, Plaintiff’s IIED cause of action arises from and necessarily depends
on Defendant’s communication of false evidence to law enforcement, which is absolutely
protected under Civil Code section 47(b).

However, construing the allegations in the light most favorable to Plaintiff,

Plaintiff also alleges an “independent” course of conduct by Defendant in support of her
IIED claim that is not “necessarily related” to Defendant’s statements to police. Rusheen,
37 Cal. 4th at 1065. For example, Plaintiff alleges that during the course of her
relationship with Defendant, Defendant exerted control over Plaintiff’s behavior, sleep,
and social activities, spied on Plaintiff, and ultimately coerced Plaintiff into indulging his
sexual fantasies, including having sex with a stranger. TAC. ¶¶ 39–53. Plaintiff alleges
she suffered PTSD from these incidents even before Defendant’s attempts to frame her.
Id. ¶ 53.

Plaintiff did not argue that this course of conduct independently supported an IIED
cause of action in either her Opposition to Defendant’s Motion to Dismiss, or in her
instant Motion for Reconsideration, and the Court takes no view on whether these
allegations, standing alone, are sufficient to support such a cause of action. At the same
time, Defendant did not show that Plaintiff could not support an IIED claim based on a
course of conduct unrelated to Defendant’s alleged false statements to law enforcement,
or that a potential effort by Plaintiff to amend her complaint with additional allegations in
support of IIED based on this separate course of conduct would be futile. Therefore, upon
reconsideration, the Court GRANTS IN PART Plaintiff’s Motion for Reconsideration,
MODIFIES the MTD Order, and DISMISSES WITHOUT PREJUDICE (rather than with
prejudice) Plaintiff’s IIED claim.
B. New Material Facts

Plaintiff also argues that reconsideration of the MTD Order is warranted in light of
Plaintiff’s discovery of new material facts. Specifically, Plaintiff argues that, after the
Court issued the Order, she discovered body camera footage showing additional
encounters between law enforcement and Defendant. Mot. at 12–16. During these
encounters, Defendant Diaz allegedly lied about the threat Plaintiff posed to him and
Defendant Angela Diaz, and urged law enforcement to arrest Plaintiff. Dkt. 62-1
(“McLetchie Dec.”) ¶ 7.

Defendant’s argument fails for several reasons. First, these facts are not “new”
because they did not emerge after the Court issued the Order. See L.R. 7-18(b). Plaintiff
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CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. SA CV 18-1831-DOC (KESx) Date: October 8, 2019

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received the additional evidence cited to in the Motion from Defendant City of Anaheim
on February 15, 2019 nearly four months before the Court issued the Order. See Dkt. 72-
1 (“Adelson Dec.”) ¶ 4. Plaintiff does not show that she could not have discovered the
additional in the exercise of reasonable diligence before the Court issued the MTD Order.
See L.R. 7-18(a). Plaintiff’s counsel states that she did not discover this evidence earlier
“because of the challenges inherent in reviewing the large quantity of technical
evidence.” McLetchie Dec. ¶ 7. Yet counsel’s failure to discover additional facts does not
provide a sufficient basis for reconsideration. See Zubulake v. UBS Warburg LLC, 229
F.R.D. 422, 432, 435 (S.D.N.Y. 2004) (explaining that counsel is responsible for
“coordinating her client’s discovery efforts,” including communicating with technology
personnel if necessary).

Moreover, even if the Court were to consider Plaintiff’s “new” evidence, this
additional evidence would not have changed the outcome of Court’s MTD Order. See
L.R. 7-18(a), (b). The additional evidence cited by Plaintiff consists exclusively of
Defendant’s communications with law enforcement. As stated in the Court’s MTD Order,
under California Civil Code section 47(b), Defendant is absolutely immune from liability
for false imprisonment and IIED arising from Defendant’s statements to law
enforcement. MTD Order at 9–10. To the extent such newly-discovered communications
may support Plaintiff’s claim for malicious prosecution (a cause of action to which
section 47(b) does not apply), the Court dismissed Plaintiff’s malicious prosecution claim
without prejudice, and permitted Plaintiff to file an amended complaint. Plaintiff filed a
Third Amended Complaint, and she appears to have included allegations regarding this
newly discovered evidence. TAC ¶¶ 143, 150, 158-60. Accordingly, Plaintiff’s argument
for reconsideration of the MTD Order on the grounds of newly discovered evidence is
without merit.

IV. Disposition

For the reasons set forth above, the Court GRANTS IN PART and DENIES IN
PART Plaintiff’s Motion for Reconsideration. The Court DENIES Plaintiff’s Motion to
the extent she seeks to revive her false arrest/false imprisonment claim; this claim is
absolutely barred by Cal. Civ. Code § 47(b), and remains dismissed with prejudice. The
Court GRANTS IN PART Plaintiff’s Motion with respect to her IIED claim; Plaintiff’s
IIED claim is now DISMISSED WITHOUT PREJUDICE.

Plaintiff may file an amended complaint, if desired, on or before October 22,

2019.
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CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. SA CV 18-1831-DOC (KESx) Date: October 8, 2019

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As the Court GRANTS IN PART Plaintiff’s Motion and provides leave to amend,
the Court DENIES AS MOOT WITHOUT PREJUDICE Defendant Diaz’s pending
Motion to Dismiss the Third Amended Complaint (Dkt. 65). Defendant Diaz may file a
Motion to Dismiss upon Plaintiff’s filing of an amended complaint, or in the absence of
Plaintiff filing such an amended complaint, on or before October 22, 2019.

The Clerk shall serve this minute order on the parties.

MINUTES FORM 11 Initials of Deputy Clerk: rrp

CIVIL-GEN