# Rubalcava v. City Of San Jose

> District Court, N.D. California · May 24, 2024

URL: https://www.frixlaw.com/law-library/cases/10079106

## Case

- **Court:** District Court, N.D. California
- **Decided:** May 24, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6 SAN JOSE DIVISION
7
8 LIONEL RUBALCAVA, Case No. 20-cv-04191-BLF

9 Plaintiff,
ORDER GRANTING PLAINTIFF’S
10 v. MOTION TO CERTIFY
DEFENDANTS’ QUALIFIED
11 JOSEPH PEREZ, STEVEN SPILLMAN, IMMUNITY APPEAL AS FRIVOLOUS
and TOPUI FONUA,
12 [Re: ECF 306]
Defendants.
13

14
15 Before the Court is Plaintiff’s Motion to Certify Defendants’ Qualified Immunity Appeal
16 as Frivolous. See Pl.’s Mot., ECF 306. The motion is fully briefed, and the Court finds it to be
17 suitable for decision without oral argument. See Civ. L.R. 7-1(b).
18 The motion is GRANTED for the reasons discussed below.
19 I. BACKGROUND
20 Plaintiff’s Conviction, Release, and Filing of this Suit
21 The facts of this case are well-known to the parties and need not be repeated in full here.
22 In brief, Plaintiff claims that law enforcement officers’ fabrication of evidence and other
23 misconduct caused him to be wrongfully prosecuted for a 2002 drive-by shooting that paralyzed
24 the victim from the waist down. Plaintiff was convicted and served seventeen years in prison
25 before the Santa Clara County District Attorney’s Office, based on an internal reinvestigation,
26 joined with Plaintiff in a stipulated motion to vacate the conviction and to find Plaintiff actually
27 innocent. The Santa Clara County Superior Court granted the motion to vacate the conviction and
1 This Court’s MSJ Order
2 A number of parties and claims were dismissed during the first three years of this
3 litigation. The case was further streamlined by this Court’s order of March 27, 2024, granting in
4 part and denying in part a defense motion for summary judgment (“MSJ Order”). See MSJ Order,
5 ECF 264. The MSJ Order left four civil rights claims for trial against three individual defendants,
6 all of whom were members of the San Jose Police Department at the time of the shooting: Joseph
7 Perez, Topui Fonua, and Steven Spillman (“Defendants”). See id. at 39. The Court denied
8 Defendants’ motion for summary judgment on Plaintiff’s § 1983 claims for fabrication of
9 evidence (Claim 1), Brady1 violations (Claim 2), malicious prosecution (Claim 3), and conspiracy
10 (Claim 4). See id.
11 Of particular relevance here, the Court denied Defendants’ motion for summary judgment
12 on the basis of qualified immunity. With respect to Claim 1, the Court found that the record
13 evidence gives rise to disputed issues of fact as to whether Defendants deliberately fabricated their
14 police reports by stating that witnesses had made unequivocal identifications of Plaintiff as the
15 shooter when they had not done so, by misquoting witnesses, and by making false statements
16 regarding the circumstances of the reported witness identifications. See MSJ Order at 25. The
17 Court also found that if Plaintiff’s version of events is credited, Defendants’ conduct violated a
18 constitutional right that was clearly established prior to the 2002 shooting and investigation,
19 specifically, the right not to be subjected to criminal charges on the basis of false evidence that
20 was deliberately fabricated by the government. See id. at 26-27.
21 With respect to Claim 2, the Court found that the record evidence gives rise to disputed
22 issues of fact as to whether Defendants violated Brady by failing to disclose evidence going to the
23 credibility of the government’s eyewitnesses. See MSJ Order at 29. The Court also found that if
24 Plaintiff’s version of events is credited, Defendants’ conduct violated a constitutional right that
25

26
1 Brady v. Maryland, 373 U.S. 83 (1963).

27
1 was clearly established prior to the 2002 shooting and investigation, specifically, the right to
2 disclosure of Brady material by police officers. See id. at 30.
3 With respect to Claim 3, the Court found that the record evidence gives rise to disputed
4 issues of fact as to whether Defendants caused Plaintiff to be prosecuted with the intent to deprive
5 him of constitutional rights guaranteed under the Fourteenth Amendment, including the right not
6 to be subjected to criminal charges on the basis of false evidence and the right to exculpatory
7 evidence. See id. at 35. The Court also found that if Plaintiff’s version of events is credited,
8 Defendants’ conduct violated constitutional rights that were clearly established before the 2002
9 shooting and investigation. See id. at 36.
10 Defendants did not raise a separate qualified immunity argument with respect to Claim 4
11 for conspiracy.
12 Defendants’ Interlocutory Appeal and Plaintiff’s Current Motion
13 Defendants timely appealed the denial of their motion for summary judgment on the basis
14 of qualified immunity. See Not. of Appeal, ECF 279. This Court determined that the appeal did
15 not divest it of jurisdiction to proceed with the Final Pretrial Conference on April 23, 2024 and to
16 issue rulings on the parties’ motions in limine, as those proceedings were unrelated to the issues
17 raised in Defendants’ appeal relating to qualified immunity. See Order Following Pretrial
18 Conference, ECF 302; Order Re Motions in Limine, ECF 309.
19 At the Final Pretrial Conference, Plaintiff advised the Court that he intended to file a
20 motion to certify Defendants’ qualified immunity appeal as frivolous, and he requested that the
21 trial proceed on August 2, 2024 as scheduled if his motion is granted. Plaintiff’s motion has been
22 filed and briefed, and is ready for disposition.
23 II. LEGAL STANDARD
24 “An order denying a motion for summary judgment is usually not an immediately
25 appealable final decision.” Est. of Anderson v. Marsh, 985 F.3d 726, 730 (9th Cir. 2021). “But
26 that general rule does not apply when the summary judgment motion is based on a claim of
27 qualified immunity[.]” Id. (quotation marks and citation omitted). Public officials may file an
1 on qualified immunity grounds. See id.; Chuman v. Wright, 960 F.2d 104, 105 (9th Cir. 1992).
2 Such an appeal automatically divests the district court of jurisdiction to proceed with trial pending
3 appeal, absent certification by the district court that the appeal is frivolous or waived. See
4 Rodriguez v. Cnty. of Los Angeles, 891 F.3d 776, 791 (9th Cir. 2018); Chuman, 960 F.2d at 105.
5 The Ninth Circuit’s jurisdiction to consider interlocutory appeals in the qualified immunity
6 context is “circumscribed,” Est. of Anderson, 985 F.3d at 730, and an appeal that falls outside that
7 circumscribed jurisdiction properly is characterized as frivolous, see Rodriguez, 891 F.3d at 792.
8 An appeal is within the Ninth Circuit’s jurisdiction if it raises a purely legal contention that the
9 defendants’ conduct did not violate clearly established law even if all facts are viewed in the light
10 most favorable to the plaintiff. See Est. of Anderson, 985 F.3d at 731; Rodriguez, 891 F.3d at 791.
11 However, an appeal generally falls outside the Ninth Circuit’s jurisdiction if it raises “a fact-
12 related dispute about the pretrial record, namely, whether or not the evidence in the pretrial record
13 was sufficient to show a genuine issue of fact for trial.” Est. of Anderson, 985 F.3d at 731
14 (quotation marks and citation omitted).
15 Even where it falls within the Ninth Circuit’s appellate jurisdiction, “[a]n appeal is
16 frivolous when the result is obvious or the appellant’s arguments are wholly without merit.”
17 Blixseth v. Yellowstone Mountain Club, LLC, 796 F.3d 1004, 1007 (9th Cir. 2015) (quotation
18 marks and citation omitted). A district court may certify a qualified immunity appeal as frivolous
19 even where it raises a purely legal argument, if the court determines that the argument is baseless.
20 See Greer v. Cnty. of San Diego, No. 19CV378-JO-DEB, 2023 WL 2145528, at *6 (S.D. Cal. Feb.
21 21, 2023) (certifying qualified immunity appeal as frivolous based on finding that “there is no
22 merit to the argument that a reasonable jail official . . . would believe that it was lawful to ignore a
23 lower bunk assignment for a detainee with epilepsy”); Barbosa by & through Barbosa v. Shasta
24 Cnty., No. 2:20-cv-02298-JAM-DMC, 2023 WL 1804093, at *3 (E.D. Cal. Feb. 7, 2023)
25 (certifying qualified immunity appeal as frivolous after finding the defendants’ legal argument “to
26 be baseless such that the appeal is frivolous”).
27 III. DISCUSSION
1 grounds. First, Plaintiff argues that Defendants do not accept his facts as true in asserting their
2 entitlement to qualified immunity, and that Defendants’ argument that they did not violate clearly
3 established law is based on their own version of events rather than Plaintiff’s version. Second,
4 Plaintiff argues that if the facts are construed in the light most favorable to him, it is beyond
5 dispute that Defendants violated constitutional rights that were clearly established at the time of
6 the 2002 shooting and investigation. Both of these asserted grounds are proper bases for
7 Plaintiff’s motion. “District courts have certified appeals of qualified immunity as frivolous
8 where (1) defendants claim to rely on, but do not actually rely on, the plaintiff’s version of the
9 facts, or (2) where defendants’ legal arguments run afoul of clearly established law.” James v.
10 City of Los Angeles, No.: 2:21-cv-04525-CBM-(ASx), 2024 WL 1135099, at *2 (C.D. Cal. Feb. 7,
11 2024) (collecting cases).
12 In opposition, Defendants argue that they do accept Plaintiff’s facts as true for purposes of
13 the qualified immunity analysis. Defendants contend that even assuming that all disputed facts are
14 resolved in Plaintiff’s favor, the law in 2002 did not clearly establish that their conduct violated
15 the Constitution.
16 The Court takes up these issues in turn.
17 A. Defendants do Not Accept Plaintiff’s Version of Events
18 Plaintiff first argues that Defendants’ appeal is frivolous because their assertion of
19 entitlement to qualified immunity is based on their own version of the facts rather than Plaintiff’s
20 version. That argument is well-taken. Defendants’ opening brief on appeal has not yet been filed.
21 However, Defendants’ opposition to the current motion makes clear that Defendants’ assertion of
22 entitlement to qualified immunity is based on their view that any misstatements in their police
23 reports constitute mere mischaracterizations of the eyewitness identification procedures that do not
24 rise to the level of a constitutional violation.
25 For example, Defendants argue that in order to defeat qualified immunity with respect to
26 his fabrication claim, “the conduct Plaintiff would have to show was clearly unconstitutional in
27 2002 is a police officer’s mischaracterizing in an unsworn police report a witness’s words or
1 Defendants argue that there was no clearly established law in 2002 establishing that such
2 mischaracterization in a police report would rise to the level of a constitutional violation, and that
3 under the most relevant case – Gausvik v. Perez, 345 F.3d 813 (9th Cir. 2003) – such
4 mischaracterization in an officer’s report would not be a constitutional violation. In Gausvik, the
5 Ninth Circuit held that an affidavit for probable cause containing errors was insufficient to support
6 a claim for deliberate fabrication of evidence, because although the affidavit indicated that the
7 officer had been careless with the facts, that carelessness did not rise to the level of deliberate
8 fabrication of evidence. See Gausvik, 345 F.3d at 817.
9 If Defendants’ version of events were accepted, under which any misstatements in their
10 police reports may be attributable to mere carelessness or mischaracterizations, then Defendants
11 might be entitled to qualified immunity. However, both this Court and the Ninth Circuit must
12 accept Plaintiff’s version of events in evaluating Defendants’ entitlement to qualified immunity.
13 Viewing the facts in the light most favorable to Plaintiff, the Defendants did not merely
14 mischaracterize aspects of the eyewitness identifications in their reports. In its MSJ Order, this
15 Court found that Plaintiff presented evidence sufficient to create triable issues of fact as to whether
16 Defendants deliberately fabricated evidence by describing in their police reports eyewitness
17 identifications that did not occur, misquoting witnesses, and making false statements regarding the
18 circumstances of the reported witness identifications. See MSJ Order at 25. Defendants cannot
19 challenge this Court’s determinations regarding the existence of those triable issues of fact. And
20 given those triable issues, Defendants’ failure to accept Plaintiff’s version of the facts renders their
21 qualified immunity appeal frivolous.
22 With respect to Plaintiff’s Brady claim, Defendants argue that they are entitled to qualified
23 immunity based on pre-2002 cases holding Brady does not obligate the government to disclose a
24 witnesses’ failure to identify a suspect from a photo array. See United States v. De Palma, 461
25 F.2d 240 (9th Cir. 1972); Davis v. United States, 735 A.2d 467 (D.C. 1999). In De Palma, the
26 Ninth Circuit found it “doubtful” that Brady required disclosure of an eyewitness’s failure to
27 identify the defendant from a blurry Polaroid photograph when she later identified the defendant
1 Columbia Court of Appeals held that Brady did not require the government to disclose a witness’s
2 failure to identify the defendant from a photo array, opining that “a failure to identify (as opposed
3 to a misidentification) is not exculpatory.” Davis, 735 A.2d at 476 n.14.
4 Again, if Defendants’ version of events were accepted, under which Defendants merely
5 mischaracterized some aspects of the eyewitness identifications, these authorities might entitle
6 them to qualified immunity. Under Plaintiff’s version of events, however, Defendants did not
7 merely fail to disclose a witness’s failure to identify the defendant. Plaintiff claims that
8 Defendants fabricated witness identifications and lied about witnesses’ expressions of uncertainty
9 regarding identifications that were made. In its MSJ Order, this Court found that Plaintiff
10 presented evidence sufficient to create triable issues of fact as to whether Defendants engaged in
11 that claimed misconduct. See MSJ Order at 28-29. Defendants cannot challenge this Court’s
12 determinations regarding the existence of those triable issues of fact. And given those triable
13 issues, Defendants’ failure to accept Plaintiff’s version of the facts renders their qualified
14 immunity appeal frivolous.
15 Based on the foregoing, the Court concludes that Defendants’ appeal of the denial of their
16 motion for summary judgment based on qualified immunity is frivolous, because Defendants do
17 not assume resolution of all disputed facts in favor of Plaintiff. This conclusion is consistent with
18 the decisions of numerous district courts within the Ninth Circuit certifying appeals as frivolous
19 where the defendants’ assertion of qualified immunity failed to accept the plaintiff’s version of the
20 facts. See, e.g., James, 2024 WL 1135099, at *3 (certifying appeal as frivolous because
21 “Defendants’ argument in opposition to the Motion demonstrates that they do not accept
22 Plaintiff’s facts as true in asserting their entitlement to qualified immunity.”) ; I.A. v. City of
23 Redondo Beach, No. CV 20-06447 DDP (JPRx), 2023 WL 6881022, at *3 (C.D. Cal. Oct. 17,
24 2023) (certifying appeal as frivolous where, “[a]s he did at the summary judgment stage,
25 Defendant again draws all inferences in his own favor rather than in favor of Plaintiffs.”).
26 Plaintiff’s motion to certify Defendants’ interlocutory appeal as frivolous is GRANTED on
27 the ground that Defendants’ assertion of qualified immunity does not assume resolution of all
1 B. If Plaintiff’s Version of Events is Credited, Defendants’ Appeal is Baseless
2 Next, Plaintiff argues that if the facts are construed in the light most favorable to him, it is
3 beyond dispute that Defendants violated constitutional rights that were clearly established at the
4 time of the 2002 shooting and investigation. This Court found as much in its MSJ Order,
5 concluding that if Defendants deliberately fabricated their police reports as claimed by Plaintiff,
6 their conduct violated clearly established law articulated in Devereaux v. Abbey, 263 F.3d 1070
7 (9th Cir. 2001). Devereaux held that “there is a clearly established constitutional due process right
8 not to be subjected to criminal charges on the basis of false evidence that was deliberately
9 fabricated by the government.” Devereaux, 263 F.3d at 1074-75. This Court also concluded in its
10 MSJ Order that if Plaintiff’s version of events is accepted, Defendants are not entitled to qualified
11 immunity on the Brady claim “[b]ecause it was clearly established by 1984 that police officers
12 were bound by Brady, and that evidence undermining the credibility of government witnesses fell
13 within Brady’s ambit.” MSJ Order at 30 (quoting Carrillo v. Cnty. of Los Angeles, 798 F.3d 1210,
14 1226 (9th Cir. 2015)).
15 Defendants correctly point out that “[a]n appeal from the denial of qualified immunity is
16 not frivolous solely because the district court based its order on what it perceived to be clearly
17 established law.” Suzuki v. Cnty. of Contra Costa, No. 18-CV-06963-SI, 2019 WL 4674418, at *2
18 (N.D. Cal. Sept. 25, 2019). In this case, however, Defendants simply present no legal basis for a
19 determination that they are entitled to qualified immunity if Plaintiff’s version of events is
20 credited. Defendants have not cited any cases finding that police officers were entitled to qualified
21 immunity for claims arising from their deliberate fabrication of police reports which led to the
22 prosecution of an innocent man.
23 Under these circumstances, the Court need not address Defendants’ objection to Plaintiff’s
24 citation to Harris v. Roderick, 126 F.3d 1189 (9th Cir. 1997), on the basis that Harris was not
25 cited in the summary judgment briefing. The Court does not rely on Harris in concluding that
26 Defendants’ qualified immunity appeal is frivolous.
27 Accordingly, Plaintiff’s motion to certify Defendants’ interlocutory appeal as frivolous is
1 determination that they are entitled to qualified immunity if Plaintiffs version of events is
2 || credited.
3 IV. ORDER
4 (1) Plaintiff's Motion to Certify Defendants’ Qualified Immunity Appeal as Frivolous
5 is GRANTED.
6 (2) Absent issuance of a stay by the Ninth Circuit, jury selection remains scheduled to
7 commence on August 2, 2024.
8 (3) This order terminates ECF 306.
9
10 || Dated: May 24, 2024 LDU In (iZeMael
BETH LABSON FREEMAN
11 United States District Judge
a 12

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10079106. Public record. Not legal advice.