Ayala v. KC Environmental Health

426 F.Supp.2d 1070 (2006)

Roxanne AYALA, et al., Plaintiffs,
v.
KC ENVIRONMENTAL HEALTH, et al., Defendants.

No. CV F 02-5846 LJO.

United States District Court, E.D. California.

March 30, 2006. Order Denying Reconsideration May 8, 2006.

Robert E. Dowd, Law Offices of Robert E. Dowd, Bakersfield, CA, for Plaintiffs.

Charles Frederick Collins, Kern County Counsel, Bakersfield, CA, for Defendants.

SUMMARY JUDGMENT DECISION

O'NEILL, United States Magistrate Judge.

INTRODUCTION^[1]

In this malicious prosecution action under 42 U.S.C. § 1983 ("section 1983"), defendants Kern County Environmental Health Services Department ("EHS"), EHS environmental specialist William O'Rullian ("Mr.O'Rullian"), and EHS environmental health technician Terry Gray ("Mr.Gray")^[2] seek summary judgment on grounds that evidence negates the claims of plaintiffs Leroy Edwards, Kenneth Edwards and Roxanne Ayala^[3] (collectively "plaintiffs") and that Mr. O'Rullian and Mr. Gray are entitled to qualified immunity. This Court considered the County defendants' summary judgment motion on the record^[4] and without oral argument, pursuant to this Court's Local Rule 78-230(h). For the reasons discussed below, this Court GRANTS the Kern County defendants summary judgment.

BACKGROUND

The Parties

Plaintiff Leroy Edwards ("Leroy") is the father of plaintiff Kenneth Edwards ("Kenneth") and Ms. Ayala. At times relevant, Ms. Ayala was the sole owner of Action Sewer Pumping ("Action"), a septic pumping business. According to plaintiffs, Ms. Ayala was "responsible for operating" Action. Action's sewer pumping trucks pumped contents of residential and commercial septic tanks into containers on the trucks and transported the contents to a disposal site. Action also rented and maintained portable chemical toilets. During 1997-2000, Ms. Ayala dba Action held EHS health and safety permits ("health permits") to operate a septic pumping business and toilet rental agency in Kern County.

During 1999-2001, Leroy and Kenneth performed services for Action, including driving its trucks, and were paid for their work. The County defendants contend that although Ms. Ayala claimed to own Action, it was a family business partnership among plaintiffs and Diane Temple ("Ms.Temple"), Kenneth's wife, in that profits were split among plaintiffs and Ms. Temple, who also worked for Action. In his deposition, Kenneth noted that Action monies were split among Ms. Ayala, Ms. Temple and Kenneth. In her deposition, Ms. Ayala admitted to a splitting of Action monies. Plaintiffs note that Action "was a family business" with Leroy as "the patriarch" who "participated when it was convenient." In her declaration, Ms. Ayala states that she "left the physical operation of the daily business to my family members."

EHS operates a septic pumping program to assure septage and sewage are safely removed, transported and disposed of in compliance with state and Kern County regulations. EHS also issues health permits to septic pumping providers. Kern County employs Mr. O'Rullian as an environmental specialist in EHS. Since 1989, Mr. O'Rullian has supervised the EHS solid waste and vector control program but, according to the County defendants, is neither an EHS manager nor policy maker.

During 1994-2004, Kern County employed Mr. Gray as an environmental health technician in the EHS solid waste and vector program. Mr. O'Rullian supervised Mr. Gray, whose duties included investigations into compliance with EHS health permits, field observations, and joining inspections of other agencies and communicating with other agencies.

Defendant City of Bakersfield ("City") employed defendant Terry Buss ("Mr. Buss") as a code enforcement officer to enforce the City municipal code and the California Health & Safety Code and Code of Regulations and to investigate related wrongdoing. This Court issued its January 10, 2006 decision to grant the City and Mr. Buss (collectively the "City defendants") summary judgment on nearly identical grounds as the County defendants' present motion. Plaintiffs appeal the summary judgment and this Court's denial of relief as to plaintiffs' failure to file timely opposition papers to the City defendants' summary judgment motion.

Property Inspections

Kenneth owns nearly 20 acres of vacant land on Cottonwood Road ("Cottonwood property") in a heavy industrial zoned area of Bakersfield. In 2000, the Cottonwood property was Action's designated storage yard for vehicles and equipment. Action paid Kenneth for use of the Cottonwood property.

Leroy has leased and used property on South Union Avenue in Bakersfield ("Union property") to store equipment, machinery and vehicles subject to a pre-existing use exception to the area's current zoning. Leroy lived in Bakersfield at 340 Hudson Drive ("Hudson property"), which was owned by Ms. Ayala, who paid Leroy's rent from Action's account in return for Leroy's services for Action. Plaintiffs note that Ms. Ayala permitted Leroy to live at the Hudson property and to "pay as he would."

Kenneth and Ms. Temple lived in Bakersfield at 2311 South Eye Street ("Eye Property").

The County defendants note that in spring 2000, EHS began to investigate Action because "regular review" of Action's pumping records revealed omissions, discrepancies and anomalies as to, among other things, septic pumping reports for sewer system locations. On June 7, 2000 and pursuant to an inspection warrant sought by the City to address municipal code compliance issues, a multi-agency inspection was conducted of the Cottonwood property. Mr. O'Rullian assigned Roger Berretti ("Mr.Berretti") of the EHS solid waste and vector control program to observe and take photographs during the inspection in that the Cottonwood property was Action's designated storage area for septic pumping and toilet rental vehicles and equipment. For EHS, the inspection addressed health permit violations. Mr. O'Rullian and Mr. Gray neither participated in the June 7, 2000 inspection of the Cottonwood property nor prepared a report regarding the inspection. Mr. Berretti prepared the EHS inspection report.

Mr. O'Rullian and Mr. Gray participated in June 7, 2000 inspections, pursuant to warrants, of the Union, Hudson and Eye properties to address violations of health permits and environmental laws and regulations. On the Union property, Mr. O'Rullian and Mr. Gray observed used vehicle batteries, used oil filters, spilled waste oil and chemical and oil drums. On the Hudson property, Mr. O'Rullian and Mr. Gray observed what they believed to be stained or oily soil to suggest release of used oil, hydraulic fluid and other wastes, containers of waste oil and hydraulic fluid, approximately 50 waste vehicle batteries, and used oil filters. Mr. O'Rullian and Mr. Gray note that at the Eye property, they observed health permit violations but no hazardous waste. Mr. O'Rullian prepared EHS reports for the Union, Hudson and Eye properties to note violations of the Kern County Ordinance Code and California Health & Safety Code and Code of Regulations. In his reports, Mr. O'Rullian did not note violation of California Health & Safety Code section 25189.5 (disposal, treatment, storage or transportation of hazardous waste without permits or at unauthorized points). Mr. Gray did not prepare reports of inspections of the Union, Hudson and Eye properties.

Civil Proceedings Against Plaintiffs And Re-Inspections Of The Properties

On August 14, 2000, EHS issued its notice and order to require Action to remove all sewage in tanks at the Cottonwood, Union, Hudson and Eye properties (collectively "plaintiffs' properties") to a proper disposal site and to provide, no later than August 31, 2000, documentation of the registered sewage pumping services used to remove the sewage and of proper disposal of the sewage.

During the summer or early fall 2000, Craig A. Smith ("Mr.Smith"), a Kern County Deputy District Attorney, reviewed reports, laboratory results and photographs relating to inspections of plaintiffs' properties. Mr. Smith is responsible to enforce civil and criminal environmental laws, including housing and business conditions. Mr. Smith was assigned to prosecute a civil action against plaintiffs to address, in part, Action's business practices. On October 12, 2000, a Kern County Superior Court civil action ("civil action") was filed against plaintiffs to seek, among other things, injunctive and nuisance relief and civil penalties regarding alleged hazardous use of plaintiffs' properties.

Mr. O'Rullian and Mr. Gray were aware of the civil action since it involved Action. In November 2000, Mr. O'Rullian and Mr. Gray participated in re-inspections of plaintiffs' properties, pursuant to an order of the court in the civil action. Mr. O'Rullian wrote EHS reports on the reinspections and did not note violation of California Health & Safety Code section 25189.5 (disposal, treatment, storage or transportation of hazardous waste without permits or at unauthorized points).

Pumping Job Complaint

In early 2001, Mr. O'Rullian received a telephone call from one of two elderly sisters Shirley Kinney ("Ms.Kinney") or Irma Honeycutt ("Ms.Honeycutt") who complained about American Pumping, Kenneth's non-septic pumping business, and that Leroy and Kenneth failed to pump Ms. Kinney and Ms. Honeycutt's septic tank although Leroy and Kenneth indicated they had pumped and were paid for pumping. Leroy and Kenneth claim they drove 45 minutes each way to Ms. Kinney and Ms. Honeycutt's mobile home, dug down four feet to uncover the septic tank lid, and pumped their septic tank for 25-45 minutes without success in that the septic tank had been abused and not cleaned out for 18 years and the line to the septic tank was blocked.

Mr. O'Rullian notes that he was concerned because he knew that American Pumping did not have a Kern County septic pumping license. Mr. O'Rullian referred the Ms. Kinney/Ms. Honeycutt complaint to Mr. Smith as it appeared to relate to business practices, not an environmental health matter. Mr. O'Rullian informed Mr. Smith of the Ms. Kinney/Ms. Honeycutt complaint and that they would contact Mr. Smith.

Mr. Smith interviewed Ms. Kinney and Ms. Honeycutt at their mobile home and was told their septic tank had not been pumped and remained full. Mr. O'Rullian notes that after he learned that Mr. Smith had interviewed Ms. Kinney and Ms. Honeycutt, Mr. O'Rullian did not discuss with Mr. Smith or anyone else from his office the validity of Ms. Kinney and Ms. Honeycutt's claims or whether plaintiffs should be prosecuted. Mr. Gray had neither involvement in Ms. Kinney and Ms. Honeycutt's complaint nor contact with Ms. Kinney, Ms. Honeycutt or the District Attorney's Office regarding their complaint.

Criminal Action Against Plaintiffs

The Charges Against Plaintiffs

On April 12, 2001, Mr. Smith caused to be filed a four-count criminal complaint ("criminal complaint") to initiate a Kern County Superior Court action ("criminal action") against plaintiffs. Count one alleged plaintiffs unlawfully conspired to violate several California Health and Safety. Code and Penal Code sections (misdemeanors and felonies) addressing transport and disposal of hazardous waste and fraudulent receipt of money for services. Count two alleged plaintiffs committed a felony by violating California Health and Safety Code section 25189.5 (disposal, storage or transportation of hazardous waste without permits or at unauthorized points).^[5] Count three alleged plaintiffs committed a felony by violating California Penal Code section 182(a)(4) by conspiring unlawfully to defraud Ms. Kinney and Ms. Honeycutt and to obtain money by false pretenses in connection with the January 21, 2001 septic pumping job.^[6] Count four alleged plaintiffs committed a felony by violating California Penal Code section 182(a)(5) and unlawfully conspired to commit acts injurious to public health. Mr. Buss signed and verified the criminal complaint.

In his declaration, Mr. Smith states that he "initiated the prosecution" of the criminal action against plaintiffs and "made the decision that probable cause existed to prosecute" plaintiffs in the criminal action "independent" of Mr. O'Rullian and Mr. Gray. Mr. Smith declares that he "solely" decided to prosecute plaintiffs on count two after he reviewed documentation from Mr. O'Rullian and Mr. Buss and including written reports, photographs, interviews, and laboratory results indicating the presence of crude/waste on plaintiffs' properties. Mr. Smith notes that he visited plaintiffs' properties and observed them.

Mr. Smith further declares that he conducted "an independent investigation" regarding count three and interviewed Ms. Kinney and Ms. Honeycutt. According to Mr. Smith, he "solely made the decision to criminally prosecute plaintiffs for each of the counts" and decided whether to file the criminal complaint, who to charge with crimes, the types of violations of California law to prosecute, and to charge plaintiffs with felonies versus misdemeanors. Mr. Smith declared:

The spillage of sewage was an instrumental factor in my decision to prosecute. In particular, I believed there was sufficient evidence to prove beyond a reasonable doubt that Leroy Edwards, Kenneth Edwards and Roxanne Ayala conspired to violate laws regarding the pumping and release of septic waste, and committed felony violations regarding disposal of hazardous waste. To further specify, the hazardous waste consisted of used oil filters, discarded automotive batteries and the release of used oil and other hazardous liquids by the [plaintiffs].

Prior to filing of the criminal complaint, Mr. O'Rullian and Mr. Gray were unaware that Mr. Smith planned to pursue the charges in the criminal complaint. Mr. O'Rullian and Mr. Gray state in their declarations that the did not urge Mr. Smith or anyone in his office to prosecute plaintiffs regarding any portion of the criminal complaint. Mr. O'Rullian and Mr. Gray were neither asked to review nor reviewed the criminal complaint prior to its filing. Neither Mr. O'Rullian nor Mr. Gray saw the criminal complaint prior to its filing.

On April 26, 2001, Lara Kimm ("Ms. Kimm"), an employee with the wastewater division of the City's Public Works Department, sent Mr. Smith a fax to note that although liquid and soil samples taken from the Cottonwood property on June 7, 2000 were positive for a constituent of crude/waste oil, the samples did not constitute hazardous waste in that the concentration of crude/waste did not exceed the requisite threshold for hazardous waste. According to Mr. Smith, Ms. Kimm's information "did not impact" his analysis of count two in light of the presence of apparent hazards in addition to liquid in tanks, the subject of the samples referred to by Ms. Kimm.

Probable Cause Determination

On May 7, 2001, the Kern County Superior Court granted a motion to sever the criminal action against Ms. Ayala. On May 8 and 9, 2001, a preliminary hearing was conducted as to Leroy and Kenneth in the criminal action, and ultimately, Leroy and Kenneth were bound over for trial on the criminal complaint's four counts and pursuant the presiding judicial commissioner's finding of probable cause on the criminal complaint's four counts. At the request of the District Attorney's Office, Mr. Gray testified at the preliminary hearing although he did not speak to Mr. Smith about his testimony prior to giving it Mr. O'Rullian neither testified nor participated at the preliminary hearing. Mr. Smith declares that neither Mr. Gray nor Mr. O'Rullian affected Mr. Smith's decisions regarding witnesses, evidence, objections or other matters at the preliminary hearing.

In the criminal action, Mr. Smith filed a May 22, 2001 information, which incorporated the criminal complaint's allegations.

On May 31, 2001, Mr. Smith dismissed count three against Ms. Ayala based on, as he declares, "the furtherance of justice, not upon any belief that Roxane Ayala was innocent or that there was insufficient evidence to sustain a conviction, but upon my subjective belief that a misdemeanor conviction was an outcome that was unsatisfactory."

On July 5, 2001, Leroy and Kenneth filed their California Penal Code section 995 motion to appeal the preliminary hearing's probable cause determination as to the criminal complaint's four counts. According to the County defendants, the motion was premised on insufficient evidence to hold Leroy and Kenneth to answer. A Kern County Superior Court judge denied the motion, and Leroy and Kenneth pursued no further appeal of the probable cause determination.

Trial Proceedings

On July 17, 2001, trial commenced in the criminal action against Leroy and Kenneth with Mr. Smith as prosecutor. At the request of the District Attorney's Office, Mr. Gray testified at trial although he did not speak to Mr. Smith about his testimony prior to giving it. Mr. O'Rullian neither testified nor participated at trial. Mr. Smith declares that neither Mr. Gray nor Mr. O'Rullian affected Mr. Smith's decisions regarding witnesses, evidence, objections, jury selection or other matters at trial.

At the close of the prosecution case, Leroy and Kenneth brought a motion, in part, to dismiss count two. Subsequent to argument with the presiding superior court judge but prior to the judge's ruling on Leroy and Kenneth's motion, Mr. Smith made a motion to dismiss count two "in the interest of justice" because it was not "the thrust of the case." Mr. Smith declares he did not seek to dismiss count two "because of a lack of evidence. Rather, the dismissal of Count II was requested by me be because it was considered an ancillary count secondary to the more pertinent counts enumerated in the Information." Mr. Smith further notes that he did not indicate "the dismissal was due to insufficient evidence which might implicate Kenneth Edwards' and Leroy Edwards' innocence."

Although he raised a question as to substantial evidence, the trial judge denied Leroy and Kenneth's motion to dismiss count three. After a brief dialogue with the trial judge, Mr. Smith voluntarily made a motion to dismiss the remaining counts, including count three, "in the interest of justice." The trial judge granted the motion to dismiss the remaining counts. Mr. Smith further declares he dismissed counts two and three "not upon any belief that Kenneth Edwards and Leroy Edwards were innocent or that there was insufficient evidence to sustain a conviction, but upon my subjective belief that a misdemeanor conviction was an outcome that was unsatisfactory."

Pursuant to a written Terms of Agreement form, Mr. Smith and Ms. Ayala's counsel agreed to dismiss all counts against Ms. Ayala. On July 27, 2001, Mr. Smith dismissed count two as to Ms. Ayala and as Mr. Smith declares "not upon any belief that Roxanne Ayala was innocent or that there was insufficient evidence to sustain a conviction, but upon my subjective belief that a misdemeanor conviction was an outcome that was unsatisfactory."

EHS Permit Revocation Proceedings

A business which utilizes a "sewer pumping vehicle" or a vehicle to service portable toilets, such as those of plaintiffs, must obtain an EHS health permit for each vehicle. Under the Kern County Ordinance Code, EHS may suspend or revoke a health permit if EHS finds that a business violated applicable law or regulations.

After an evidentiary hearing, an EHS hearing officer issued his September 20, 2001 decision to revoke health and safety registrations to operate a sewage pumping business and toilet rental agency in Kern County held in the name of Ms. Ayala, dba Action Sewer Pumping and including a pending registration application for 2001. The decision further denied Action's pending health permit applications for 2000-2001. More specifically, the hearing officer found that Action failed to report a sewage spill at the Cottonwood property on June 7, 2000 and pumped non-permitted wastes.

On October 5, 2001, Ms. Ayala filed in Kern County Superior Court a petition for writ of administrative mandate to challenge the EHS hearing officer's decision. After EHS' successful demurrer, Ms. Ayala filed a first amended petition on February 25, 2002. The trial court conducted a June 4, 2002 hearing on the first amended petition and issued a September 3, 2002 decision to hold that the hearing officer's factual findings were supported by evidence. Ms. Ayala appealed to the California Court of Appeal, Fifth District after the trial court's formal September 30, 2002 order to deny Ms. Ayala's writ petition.

The Court of Appeal issued its May 12, 2004 decision to affirm the trial court and observed that "[m]ost of the allegations against ASP [Action] concerned either its use of nonpermitted and unregistered vehicles to pump sewage, or its storage, transfer, and/or disposal of sewage at unapproved locations." The Court of Appeal concluded that "the evidence in the administrative record fully supports the trial court's conclusion. [Ms.] Ayala failed to satisfy her burden to demonstrate that EHS's administrative findings were contrary to the great weight of the evidence."

Plaintiffs' Malicious Prosecution Claims

On July 12, 2002, plaintiffs filed their original complaint to allege civil rights violations to initiate this action. The parties engaged in extensive law and motion to culminate in plaintiffs' operative fifth amended complaint ("complaint"), filed July 14, 2004. The complaint pursues malicious prosecution claims against the County defendants.

The complaint challenges the validity of the criminal complaint's counts two and three. The complaint alleges that Mr. O'Rullian, Mr. Gray and Mr. Buss "spent substantial time on the plaintiffs' properties, knew of the contents thereon and had personal knowledge that the charges made in the second and third counts of the Criminal Information were untrue." The complaint further alleges defendants conducted no scientific testing to support the presence of hazardous waste on plaintiffs' properties. The complaint alleges the absence of facts to support the criminal complaint's count three in that Ms. Kinney and Ms. Honeycutt paid plaintiffs $225 for four hours of driving and work to pump their septic tank on a Sunday although the pumping did not cure their septic tank blockage. According to the complaint, Mr. O'Rullian, Mr. Gray and Mr. Buss "were aware that there were no facts to support the second and third causes of action for the criminal information and each participated in the commencement of the criminal prosecution by conspiring together by either directly signing, or encouraging, counseling or inciting the signing of the criminal complaint and by investigating in bad faith." The complaint claims the County and City defendants attempted to overburden plaintiffs with multiple legal proceedings to reflect their "malicious attitude."^[7]

As to EHS, the complaint appears to allege that management personnel, including Mr. O'Rullian, created a policy to "financially destroy" plaintiffs, "to incarcerate them and to turn their clients away from them . . . and to punish them financially and emotionally." As damages, the complaint alleges plaintiffs' legal expenses in connection with the criminal action, injury to personal and business reputations. anxiety, fear and apprehension.

The County defendants seek summary judgment on grounds that plaintiffs are unable to establish, and evidence negates, elements of plaintiffs' malicious prosecution and Monell claims. Mr. O'Rullian and Mr. Gray further claim that they are entitled to qualified immunity to bar plaintiffs' malicious prosecution claims.

On March 17, 2006, after receiving a two-week extension, plaintiff's, disobeying this Court's standing order on page limitations, filed a 92-page memorandum of points and authorities and a 56-page response to the Kern County defendants' undisputed facts. Plaintiffs' papers are rambling and disjointed. In sum, plaintiffs contend that: (1) they were denied "the right to be prosecuted fairly"; (2) they were prosecuted when the "agents knew by the lack of evidence these plaintiff's were innocent"; (3) plaintiff's rights were deprived maliciously and in bad faith; and (4) plaintiffs suffered injury in "an escalation of harassment."

DISCUSSION

Summary Judgment Standards

F.R.Civ.P. 56(b) permits a party against whom a claim is asserted to seek "summary judgment in the party's favor upon all or any part thereof." Summary judgment is appropriate when there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. F.R.Civ.P. 56(e); Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); T.W. Elec. Sergi., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987). The purpose of summary judgment is to "pierce the pleadings and assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec., 475 V.S. at 586, n. 11, 106 S.Ct. 1348, 89 L.Ed.2d 538; International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir.1985).

On summary judgment, a court must decide whether there is a "genuine issue as to any material fact," not weigh the evidence or determine the truth of contested matters. F.R.Civ.P. 56(c); Covey v. Hollydale Mobilehome Estates, 116 F.3d 830, 834 (9th Cir.1997); see Adickes v. S.H. Kress Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Polley v. Columbia Broadcasting System, 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962); Loehr v. Ventura County Community College Dist., 743 F.2d 1310, 1313 (9th Cir.1984). The evidence of the party opposing summary judgment is to be believed and all reasonable inferences that may be drawn from the facts before the court must be drawn in favor of the opposing party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita, 475 U.S. at 587, 106 S.Ct. 1348, 89 L.Ed.2d 538. The inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-252, 106 S.Ct. 2505, 91 L.Ed.2d 202.

To carry its burden of production on summary judgment, a moving party "must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir.2000); see High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir.1990). A "complete failure of proof concerning an essential element" of plaintiffs case is sufficient to grant summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). "[T]o carry its ultimate burden of persuasion on the motion, the moving party must persuade the court that there is no genuine issue of material fact." Nissan Fire, 210 F.3d at 1102; see High Tech Gays, 895 F.2d at 574. "As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. 2505, 91 L.Ed.2d 202.

"If a moving party fails to carry its initial burden of production, the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial." Nissan Fire, 210 F.3d at 1102-1103; See Adickes, 398 U.S. at 160, 90 S.Ct. 1598, 26 L.Ed.2d 142. "If, however, a moving party carries its burden of production, the nonmoving party must produce evidence to support its claim or defense." Nissan Fire, 210 F.3d at 1103; see High Tech Gays, 895 F.2d at 574. "If the nonmoving party fails to produce enough evidence to create a genuine issue of material fact, the moving party wins the motion for summary judgment." Nissan Fire, 210 F.3d at 1103; see Celotex, 477 U.S. at 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 ("Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make the showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.") "But if the nonmoving party produces enough evidence to create a genuine issue of material fact, the nonmoving party defeats the motion." Nissan Fire, 210 F.3d at 1103; see Celotex, 477 U.S. at 322, 106 S.Ct. 2548, 91 L.Ed.2d 265. "The amount of evidence necessary to raise a genuine issue of material fact is enough `to require a jury or judge to resolve the parties' differing versions of the truth at trial." Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir.1983) (quoting First Nat'l Bank v. Cities Service Co., 391 U.S. 253, 288-289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968)). "The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient." Anderson, 477 U.S. at 252, 106 S.Ct. 2505, 91 L.Ed.2d 202.

As discussed below, the County defendants have met their summary judgment burden to negate elements of plaintiffs' malicious prosecution and Monell claims and to demonstrate the absence of genuine issues of material fact and that they are entitled to judgment as a matter of law.

Malicious Prosecution Elements

In the Ninth Circuit, the general rule is that a malicious prosecution claim is not cognizable under section 1983 if process is available in the state judicial system to provide a remedy. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987); Bretz v. Kelman, 773 F.2d 1026, 1031 (9th Cir.1985) (en banc); Cline v. Brusett, 661 F.2d 108, 112 (9th Cir.1981). Nonetheless, "an exception exists to the general rule when a malicious prosecution is conducted with the intent to deprive a person of equal protection of the laws or is otherwise intended to subject a person to a denial of constitutional rights." Bretz, 773 F.2d at 1031; Cline, 661 F.2d at 112.

A malicious prosecution claim under section 1983 is based on state law elements. See Usher, 828 F.2d at 562. The essential elements of malicious prosecution are the same in criminal and civil contexts. The malicious prosecution plaintiff must plead and prove that the prior proceeding, commenced by or at the direction of the malicious prosecution defendant, was: (1) pursued to a legal termination favorable to the plaintiff; (2) brought without probable cause; and (8) initiated with malice. Villa v. Cole, 4 Cal. App.4th 1327, 1335, 6 Cal.Rptr.2d 644, 648 (1992). To prevail, a malicious prosecution plaintiff "must show that the defendants prosecuted her with malice and without probable cause, and that they did so for the purpose of denying her equal protection or another specific constitutional right." Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir.1995).

Initiation Of Criminal Action

Mr. O'Rullian and Mr. Gray contend plaintiffs' malicious prosecution claims fail in that Mr. O'Rullian and Mr. Gray did not initiate prosecution of the criminal action or were "actively instrumental" to initiate the criminal action. Mr. O'Rullian and Mr. Gray argue that Mr. Smith "initiated the prosecution of plaintiffs."

Malicious prosecution actions are not limited to suits against prosecutors and may be pursued against other persons who have wrongfully caused the charges to be filed. Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir.2004); Galbraith County of Santa Clara, 307 F.3d 1119, 1126-1127 (9th Cir.2002). Generally, the decision to file a criminal complaint is presumed to result from an independent determination by the prosecutor and thus precludes liability for those who participated in the investigation or filed a report that resulted in initiation of proceedings. Awabdy, 368 F.3d at 1067; Smiddy v. Varney, 665 F.2d 261, 266-268 (9th Cir. 1981), cert. denied, 459 U.S. 829, 103 S.Ct. 65, 74 L.Ed.2d 66 (1982). Nonetheless, the presumption of prosecutorial independence does not bar a subsequent section 1982 claim "against state or local officials who improperly exerted pressure on the prosecutor, knowingly provided misinformation to him, concealed exculpatory evidence, or otherwise engaged in wrongful or bad faith conduct that was actively instrumental in causing the initiation of legal proceedings." Awabdy, 368 F.3d at 1067; see Galbraith, 307 F.3d at 1126-1127.

Mr. O'Rullian and Mr. Gray point out that Mr. Smith, a prosecutor, was responsible to initiate the criminal action and caused filing of the criminal complaint. Mr. O'Rullian and Mr. Gray note that their duties as an EHS environmental specialist and environmental health technician, respectively, focused on compliance with septic pumper's health permits and environmental laws. Mr. O'Rullian and Mr. Gray attribute Mr. Smith as determining probable cause existed to prosecute plaintiffs independent of Mr. O'Rullian and Mr. Gray. Mr. O'Rullian and Mr. Gray point to Mr. Smith's declaration that Mr. Smith solely decided to prosecute plaintiffs on count two after review of reports, photographs, interviews and lab results and after visiting and viewing plaintiffs' properties. Mr. O'Rullian and Mr. Gray further note Mr. Smith's declaration that he conducted an independent investigation relative to count three and interviewed Ms. Kinney and Ms. Honeycutt. Mr. O'Rullian and Mr. Gray point out that Mr. Smith decided whether to file the criminal complaint, whom to charge, the types of violations of California law to charge, and whether to charge felonies versus misdemeanors.

In addition, Mr. O'Rullian and Mr. Gray point to their declarations that they were unaware that Mr. Smith planned to prosecute plaintiffs on the charges in the criminal complaint and that they did not urge Mr. Smith or anyone in his office to prosecute plaintiffs in regards to any portion of the criminal action. Mr. O'Rullian and Mr. Gray note that they neither were asked to review nor reviewed the criminal complaint prior to its filing. Mr. O'Rullian and Mr. Gray further note they did not see the criminal complaint until after its filing.

In their rambling, disjointed papers, plaintiffs concentrate on the actions and states of mind of Mr. Smith, the non-party prosecutor, and Mr. Buss, the City code enforcement officer who was granted summary judgment. Plaintiffs point to Ms. Kinney's testimony that Mr. Smith committed to pay her the $225 cost of Leroy and Kenneth's septic pumping job if the court did not require Leroy and Kenneth to repay the amount. Plaintiffs claim that, according to Ms. Kinney, Mr. O'Rullian told her that if she and Ms. Honeycutt testified, they would get their money back. However, a reading of Ms. Kinney's testimony reveals Mr. O'Rullian did not promise to pay her and, at most, indicated that restitution may be available if Ms. Kinney and Ms. Honeycutt testified.

As this Court found in its prior summary judgment decision, the record is clear that Mr. Smith initiated the criminal action against plaintiffs. The evidence demonstrates that Mr. O'Rullian and Mr. Gray's actions, viewed most favorably to plaintiffs, were tangential to initiation of the criminal action. There is no dispute that Mr. O'Rullian and Mr. Gray acted solely as an EHS environmental specialist and environmental health technician, respectively, and that Mr. Smith, not Mr. O'Rullian or Mr. Gray, decided whether to file the criminal complaint, whom to charge with crimes, the types of violations which to prosecute plaintiffs, and whether to charge plaintiffs with felonies or misdemeanors. Mr. Smith, not Mr. O'Rullian or Mr. Gray, was the prosecutorial force behind the criminal action. Even construing the evidence most favorable to plaintiffs, nothing suggests that Mr. O'Rullian or Mr. Gray initiated or directed the criminal action against plaintiffs.

Absence Of Prosecutorial Deception

Mr. O'Rullian and Mr. Gray further contend they did not improperly pressure or deceive Mr. Smith to file the criminal complaint. Mr. O'Rullian points out that although he prepared reports on inspections of plaintiffs' properties, he noted no violations of California Health and Safety Code section 25189.5, the subject of count two. Mr. O'Rullian notes his minimal involvement with events surrounding count three and that he received a complaint from Ms. Kinney or Ms. Honeycutt and referred the matter to Mr. Smith. Mr. O'Rullian further notes that he testified at neither the criminal action's preliminary hearing nor trial and had no involvement with Mr. Smith at the preliminary hearing or trial.

Mr. Gray notes that he did not participate in the June 7, 2000 inspection of the Cottonwood property and prepared no reports of inspections of plaintiffs' properties. Mr. Gray points out that like Mr. O'Rullian, he was neither aware of nor reviewed the criminal complaint prior to its filing. Mr. Gray notes that after he reviewed the criminal complaint, he raised with Mr. Smith the issue that waste oil as a constituent in a liquid tank did not necessarily qualify the liquid as hazardous. Mr. Gray declared that although he testified at the preliminary hearing and trial, he did not meet with Mr. Smith prior to testifying. Mr. Gray further notes that like Mr. O'Rullian, Mr. Gray had no effect on Mr. Smith's decisions at the criminal action's preliminary hearing or trial. Lastly, Mr. Gray points out that he had no involvement as to count three.

Plaintiffs argue that since Mr. O'Rullian, Mr. Gray, Mr. Buss and Mr. Smith shared information, "it is reasonable to believe that they all knew what one knew, unless Smith intentionally lied or withheld information from Buss, or the others did not communicate to Buss the true state of affairs." Without supporting authority, plaintiffs claim that "Mr. O'Rullian knew that there was no hazardous waste and that was not an issue because if it had been, by virtue of its dangerousness, another more qualified county agency would have been involved to make proper decisions relating to that issue." According to plaintiffs, Mr. Smith prosecuted plaintiffs "out of malice or ignorance or a combination of both ignoring the facts" and the malice was supplied by Mr. O'Rullian, Mr. Gray and Mr. Buss.

The record reveals no genuine issue of material fact that Mr. O'Rullian or Mr. Gray attempted to deceive Mr. Smith to wrongfully prosecute plaintiffs. There is an absence of evidence that Mr. O'Rullian or Mr. Gray improperly exerted pressure on Mr. Smith, knowingly provided misinformation to Mr. Smith, concealed exculpatory evidence, or engaged in wrongful or bad faith conduct. As noted in the County defendants' reply papers, Mr. O'Rullian and Mr. Gray viewed on plaintiffs' properties material which had characteristics of hazardous waste under the California Code of Regulations and which plaintiffs were obliged to determined were not hazardous. See 22 C.C.R. § 66262.11. Plaintiffs provide no factual support for their claim that "[t]hese men supplied the information and supplied the ill will upon which the case was prosecuted." The record is devoid of support of prosecutorial deception. Plaintiffs hyperbole does not suffice.

Favorable Termination

Mr. O'Rullian and Mr. Gray contend that dismissal of the criminal charges against plaintiffs is not "favorable termination" and thus plaintiffs fail to establish that element of their malicious prosecution claims. Mr. O'Rullian and Mr. Gray note the absence of dispute that Mr. Smith dismissed counts two and three "in the furtherance of justice." Plaintiffs respond "there was a favorable termination for the plaintiffs as favorable as if they acquitted [sic] on all charged."

In Jaffe v. Stone, 18 Cal.2d 146, 149, 114 P.2d 335, 338 (1941), the California Supreme Court addressed the effect of dismissal of criminal charges on a malicious prosecution claim:

It is not enough, however, merely to show that the proceeding was dismissed. The theory underlying the requirement of favorable termination is that it tends to indicate the innocence of the accused, and coupled with the other elements of lack of probable cause and malice, establishes the tort, that is, the malicious and unfounded charge of a crime against an innocent person. . . . Hence, if the criminal proceeding goes to trial, it is ordinarily necessary, as a foundation for a malicious prosecution suit, that the plaintiff have been acquitted.. The same fundamental theory is applied in testing a dismissal or other termination without a complete trial on the merits. If it is of such a nature as to indicate the innocence of the accused, it is a favorable termination sufficient to satisfy the requirement. If, however, the dismissal is on technical grounds, for procedural reasons, or for any other reason not inconsistent with his guilt, it does not constitute favorable termination.

As to matters terminated short of trial completion, the California Court of Appeal has explained:

Whether or not the termination of an action prior to a determination on the merits tends to indicate innocence on the pant of the defendant of the acts with which he is charged must depend on whether the manner of termination reflects on the merits of the matter. In some instances the manner of termination reflects the opinion of the court that the action lacks merit, as where criminal proceedings are dismissed for lack of sufficient evidence of guilt following a preliminary hearing. . . . In others, the termination reflects the opinion of the prosecuting party that, if pursued, the action would result in a decision in favor of the defendant, as where the district attorney seeks dismissal of the prosecution of a criminal action for lack Of evidence . . . or where the plaintiff in a civil proceeding voluntarily dismisses the action . . .

Minasian v. Sapse, 80 Cal.App.3d 823, 827, 145 Cal.Rptr. 829, 832 (1978).

Mr. O'Rullian ands Mr. Gray point out that at the end of the prosecution's case at Leroy and Kenneth's trial, their defense confined brought a motion, in part, to dismiss count two and that prior to ruling, Mr. Smith made a motion to dismiss count two "in the interest of justice" because it was not "the thrust of the case." Mr. Smith declares that he did not seek to dismiss count "because of a lack of evidence" but because he considered count two "secondary to the more pertinent counts." Mr. Smith further declared that he did not indicate "the dismissal was due to insufficient evidence which might implicate" Leroy or Kenneth's innocence.

As to count three, Mr. O'Rullian and Mr. Gray note that the trial judge denied Leroy and Kenneth's motion to dismiss count three but that Mr. Smith voluntarily made a subsequent motion to dismiss remaining counts, including count three, "in the interest of justice." Mr. O'Rullian and Mr. Gray characterize the trial court's denial of Leroy and Kenneth's motion as a ruling that there was sufficient evidence for the matter to be presented to a jury. Mr. Smith declared that he dismissed counts two and three "not upon any belief that Kenneth Edwards and Leroy Edwards were innocent or that there was insufficient evidence to sustain a conviction, but upon my subjective belief that a misdemeanor conviction was an outcome that was unsatisfactory."

Leroy and Kenneth were not acquitted of the counts two and three in that Mr. Smith dismissed them prior to a jury resolution. Leroy and Kenneth cannot rest on the mere dismissal of the counts in that the dismissals by themselves do not indicate their innocence. The record is bare of evidence that counts two and three were dismissed for reasons hinting of absence of guilt. There is no tribunal finding that counts two and three lacked merit, especially given the preliminary hearing ruling and Leroy and Kenneth's unsuccessful appeal of it. In his declaration, Mr. Smith indicates he dismissed counts two and three for reasons other than Leroy and Kenneth's innocence. A dismissal of criminal proceedings "in the interests of justice" is ambiguous as this term "implies considerations which would favor each side to this litigation." De La Riva v. Owl Drug Co., 253 Cal.App.2d 593, 600, 61 Cal. Rptr. 291, 296 (1967). The record and reasonable inferences therefrom indicate the criminal action was not terminated to indicate Leroy and Kenneth's innocence or in favor of Leroy and Kenneth for malicious prosecution purposes.

As to Ms. Ayala, the criminal action did not proceed to trial against her. As reflected in a written form agreement, Mr. Smith and Ms. Ayala's counsel stipulated to dismiss all counts against Ms. Ayala. Mr. Smith dismissed count two as to Ms. Ayala on July 27, 2001 and declared that he did so "not upon any belief that Roxanne Ayala was innocent or that there was insufficient evidence to sustain a conviction, but upon my subjective belief that a misdemeanor conviction was an outcome that was unsatisfactory." The record indicates that Ms. Ayala reached a settlement agreement with the prosecution to reflect ambiguity and to leave unresolved her guilt or innocence for malicious prosecution purposes. A dismissal resulting from negotiation, settlement or consent is generally not deemed a favorable termination of the proceeding. Webb v. Youmans, 248 Cal.App.2d 851, 853, 57 Cal.Rptr. 11 (1967). In such a case, the dismissal reflects ambiguously on the merits of the action as it results from the joint action of the parties, thus leaving open the question of defendant's guilt or innocence. Minesian, 80 Cal.App.3d at 827, n. 4, 145 Cal. Rptr. at 832, n. 4. The record and reasonable inferences therefrom indicate that counts two and three were not terminated in favor of Ms. Ayala for malicious prosecution purposes. Plaintiffs point to no evidence to raise a question otherwise.

Probable Cause — Collateral Estoppel

Mr. O'Rullian and Mr. Gray contend that since probable cause was judicially established at the preliminary hearing in the criminal action, collateral estoppel negates the absence of probable cause element of their malicious prosecution claims.

"Collateral estoppel precludes relitigation of issues argued in prior proceedings." Lucido v. Superior Court, 51 Ca1.3d 335, 341, 272 Cal.Rptr. 767, 769, 795 P.2d 1223 (1990), cert. denied, 500 U.S. 920, 111 S.Ct. 2021, 114 L.Ed.2d 107 (1991). Collateral estoppel applies to the section 1983 context in that there is "no reason to believe that Congress intended to provide a person claiming a federal right an unrestricted opportunity to relitigate an issue already decided in state court." Allen v. McCurry, 449 U.S. 90, 104, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). "A party's ability to relitigate an issue decided in a prior state court determination depends on the law of the state in which the earlier litigation occurred." Kinslow v. Ratzlaff, 158 F.3d 1104, 1105 (10th Cir.1998).

Threshold requirements to apply collateral estoppel are:

1. The issue sought to be precluded from relitigation must be identical to that decided in a former proceeding;

2. The issue must have been actually litigated in the former proceeding;

3. The issue must have been necessarily decided in the former proceeding;

4. The decision in the former proceeding must be final and on the merits; and

5. The party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding.

Lucido, 51 Cal.3d at 341, 272 Cal.Rptr. at 769.

In the malicious prosecution context, probable cause is a suspicion founded on circumstances sufficiently strong to warrant a reasonable man to believe that the charge is true. Centers v. Dollar Markets, 99 Cal.App2d 534, 540, 222 P.2d 136, 141 (1950). To recover compensatory damages, the malicious prosecution plaintiff bears the burden to prove that the defendant did not have reasonable grounds to believe that the facts alleged in the complaint were true. Centers, 99 Cal. App.2d at 540, 222 P.2d at 141. The California Court of Appeal in Centers, 99 Cal. App.2d at 540-541, 222 P.2d at 141, further explained:

Probable cause does not depend upon the possession of facts which satisfactorily prove the guilt of an accused person. It has reference to the common standard of human judgment and conduct. It exists if one is possessed of information or facts which are sufficient to cause a reasonable person to honestly believe the charge is true. . . . Proof of the favorable termination of the criminal proceeding does not create a conflict on the issue of probable cause. . . . Proof that no crime was committed or that the accused is innocent does not negative the existence of probable cause. (Citations omitted.)

Mr. O'Rullian and Mr. Gray contend that plaintiffs are collaterally estopped to relitigate probable cause as to counts two and three of the criminal complaint because at the criminal action's preliminary hearing, the judicial commissioner found probable cause existed to bind plaintiffs over for trial, and a superior court judge denied Leroy and Kenneth's motion to' attempt to overturn the probable cause determination.

"The purpose of the preliminary hearing is to weed out groundless or unsupported charges of grave offenses, and to relieve the accused of the degradation and expense of a criminal trial." Jaffe, 18 Cal.2d at 149, 114 P.2d at 337. A long-standing principle of California common law is that "a decision by a judge or magistrate to hold a defendant to answer after a preliminary hearing constitutes prima facie — but not conclusive — evidence of probable cause." Awabdy, 368 F.3d at 1067 (italics in original). "Among the ways that a plaintiff can rebut a prima facie finding of probable cause is by showing that the criminal prosecution was induced by fraud, corruption, perjury, fabricated evidence, or other wrongful conduct undertaken in bad faith." Awabdy, 368 F.3d at 1067.

Identical Issues

Mr. O'Rullian and Mr. Gray contend that probable cause litigated at the preliminary hearing in the criminal action is identical to the probable cause issue in this action in that the preliminary hearing addressed probable cause for counts two and three of the criminal complaint.

"The application of the doctrine of collateral estoppel depends on whether the issue in both actions is the same, not whether the issue arises in the same context." First N.B.S. Corp. v. Gabrielsen, 179 Cal.App.3d 1189, 1195-1196, 225 Cal. Rptr. 254, 257 (1986) (italics in original). "[A] prior judicial determination at a preliminary hearing that there"was sufficient evidence to hold the plaintiff over for trial may, in some situations, preclude the plaintiff from relitigating the issue of probable cause to arrest in a subsequent civil suit." McCutchen v. City of Montclair, 73 Cal.App.4th 1138, 1147, 87 Cal.Rptr.2d 95, 101 (1999); see Haupt v. Dillard, 17 F.3d 285, 290 (9th Cir.1994) ("Because lack of probable cause is an element of a claim of malicious prosecution . . . arid because [plaintiff] is collaterally estopped from relitigating that issue, the district court properly granted summary judgment for the defendants.")

As to Leroy and Kenneth; there is no apparent distinction in the probable cause issues addressed at the preliminary hearing in the criminal action and here. The preliminary hearing addressed, among other things, whether probable cause existed to prosecute Leroy and Kenneth on counts two and three, which are at issue here. Mr. O'Rullian and Mr. Gray demonstrate sufficient identity of issues to apply collateral estoppel to the malicious prosecution claims here. Plaintiffs raise no genuine question as the identical issues factor.

Actually Litigated And Necessarily Decided Issue

Mr. O'Rullian and Mr. Gray argue that the issue of probable cause was actually and necessarily litigated at the preliminary hearing, the purpose of which was to determine if there was sufficient cause to bind Leroy and Kenneth over for trial.

In Haupt, 17 F.3d 285, the malicious prosecution plaintiff argued that because he was acquitted in the underlying criminal trial and because the probable cause determination at his preliminary hearing was not necessary to support that judgment, the issue was not "necessarily decided" as required by state tort (malicious prosecution) law. The Ninth Circuit disagreed:

In fact, the probable cause determination was necessary to the judgment; the sole purpose of the preliminary hearing was to determine whether [plaintiff] should have been bound over for trial. But for the probable cause determination, there would have been no trial and no judgment of acquittal.

Haupt, 17 F.3d at 289.

As to Leroy and Kenneth, there is no doubt that the probable cause issue was actually and necessarily litigated at the preliminary hearing and that those factors of collateral estoppel are met as to Leroy and Kenneth. Plaintiffs raise no genuine question as to the actually litigated and necessarily decided factors.

Final Decision On Merits

Mr. O'Rullian and Mr. Gray argue that the preliminary hearing's probable cause determination became final when the superior court judge denied Leroy and Kenneth's Penal Code section 995 appeal of the judicial commissioner's probable cause determination and Leroy and Kenneth failed to seek further appeal.

To be a final determination for collateral estoppel purposes, a determination need not be a final judgment but "sufficiently firm to be accorded conclusive effect." Luben Industries, Inc. v. United States, 707 F.2d 1037, 1040 (9th Cir.1983). The California Court of Appeal has further explained:

A finding of probable cause to hold the defendant over for trial is a final judgment on the merits for the purposes of collateral estoppel under the California law because the accused can (1) immediately appeal the determination by filing a motion to set aside the preliminary hearing (Pen.Code, § 995) and (2) obtain review of the decision on the motion to set aside the preliminary hearing by filing a writ of prohibition (Pen.Code, § 999a). Also, the issue of probable cause cannot be litigated further because it cannot be used as a defense at trial.

McCutchen, 73 Cal.App.4th at 1145-1146, 87 Cal.Rptr.2d at 100.

As to Leroy and Kenneth, there can be no doubt that the probable cause issue was finally terminated on the merits with the superior court's denial of Leroy and Kenneth's Penal Code section 995 appeal of the probable cause determination. Plaintiffs raise no genuine question as to the final termination factor.

Same Parties Or Privity

Mr. O'Rullian and Mr. Gray contend that plaintiffs were the same parties to the preliminary hearing or in privity for collateral estoppel purposes.

Privity refers to "a relationship between the party to be estopped and the unsuccessful party in the prior litigation which is `sufficiently close' so as to justify application of the doctrine of collateral estoppel." Clemmer v. Hartford Ins. Co., 22 Cal.3d 865, 875, 151 Cal.Rptr. 285, 587 P.2d 1098 (1978). The California Supreme Court has explained:

In the context of collateral estoppel, due process requires that the party to be estopped must have had an identity or community of interest with, an adequate representation by, the losing party in the first action as well as the circumstances must have been such that the party to be estopped should reasonably have expected to be bound by the prior adjudication. Thus, in deciding whether to apply collateral estoppel, the court must balance the rights of the party to be estopped against the need for applying collateral estoppel in the particular case, in order to promote judicial economy by minimizing repetitive litigation, to prevent inconsistent judgments which undermine the integrity of the judicial system, or to protect against vexatious litigation.

Clemmer, 22 Cal.3d at 875, 151 Cal.Rptr. 285, 587 P.2d 1098 (citations omitted).

Collateral estoppel has been applied against nonparties who had a proprietary or financial interest in and control of a prior action. Lynch v. Glass, 44 Cal. Abp.3d 943, 949, 119 Cal.Rptr. 139 (1975). Collateral estoppel further applies when the `nonparty has such an interest "in the determination of a question of fact or law with reference to the same subject matter or transaction." Stafford v. Russell, 117 CalApp.2d 319, 320, 255 P.2d 872 (1953), cert. denied, 346 U.S. 926, 74 S.Ct. 315, 98 L.Ed. 419 (1954).

Mr. O'Rullian and Mr. Gray point out that Leroy and Kenneth were common parties to the criminal action's preliminary hearing and this action. Mr. O'Rullian and Mr. Gray argue that Ms. Ayala was in privity with Leroy and Kenneth in that the facts, overt acts and counts enumerated in the criminal complaint are identical with respect to each of the three plaintiffs. Mr. O'Rullian and Mr. Gray contend that plaintiffs "had a sufficient identity and commonality of interests" in that Action was a "family business" for the benefit of plaintiffs and Ms. Temple. To demonstrate shared identity and commonality of interest among plaintiffs, Mr. O'Rullian and Mr. Gray point out that: (1) plaintiffs are related, and Kenneth and Ms. Temple are married; (2) Ms. Ayala held herself out as Action's owner; (3) Leroy, Kenneth and Ms. Temple worked for Action; (4) Action's profits were split among plaintiffs and Ms. Temple and used for plaintiffs' benefit; (5) Ms. Ayala paid Leroy's rent from Action's account for his work; and (6) Kenneth owned the Cottonwood property which was Action's designated storage yard, and Action paid Kenneth for use of his Cottonwood property.

Mr. O'Rullian and Mr. Gray further note that in his closing remarks at the preliminary hearing, counsel for Leroy and Kenneth stated that Ms. Ayala "is already obligated to comply with all the laws in the maintenance of her business." Mr. O'Rullian and Mr. Gray attribute defense counsel's comment to suggest that "there were no continuing environmental violations" by Leroy and Kenneth given that Ms. Ayala "was complying with a temporary restraining order in civil court." Thus, Mr. O'Rullian and Mr. Gray conclude there is further evidence of an "inextricable relationship" among plaintiffs such that Ms. Ayala "could have reasonably expected to have been bound by the finding of probable cause at the preliminary hearing in a subsequent 42 U.S.C. § 1983 action."

As this Court noted in its prior summary judgment decision, Leroy and Kenneth clearly were and are the same parties to the preliminary hearing and this action. Ms. Ayala was a common defendant with Leroy and Kenneth in counts two and three of the criminal complaint. Ms. Ayala was not a party to the preliminary hearing in that the criminal action was severed as to her. Nonetheless, Ms. Ayala, by her admission, conducted a "family" business with her father (Leroy) and brother (Kenneth), and the monies of which were split with her and used for family members. Ms. Ayala permitted Leroy to live on her Hudson property and "pay as he would." Plaintiffs fail to challenge meaningfully a commonality of interest among plaintiffs in the probable cause determination in the criminal action.

This Court is aware that the preliminary hearing determination in the criminal action is prima facie, not conclusive, evidence of probable cause. See Awabdy, 368 F.3d at 1067. Plaintiffs offer no meaningful evidence to refute probable cause for counts two and three. As noted above, the evidence fails to suggest that Mr. O'Rullian or Mr. Gray induced counts two or three by fraud, corruption, perjury, fabricated evidence or other wrongful, bad faith conduct. Based on collateral estoppel effects of the preliminary hearing determination, the absence of probable cause element is negated as to plaintiffs' malicious prosecution claims.

Malice

Mr. O'Rullian and Mr. Gray contend that plaintiffs' malicious prosecution claims fail in that plaintiffs are unable to establish the element of malice directly or inferentially. Plaintiffs allude to controversies between Kern County and Leroy and Kenneth regarding maintenance of the Union property. Plaintiff claim that Kern County "lost the zoning advantage that is previously thought it had." As to malice of Mr. O'Rullian, plaintiffs appear to rely on Mr. O'Rullian's alleged statement heard by plaintiffs' counsel, his assistant and Ms. Temple that "these people have no idea what is in store for them," made after a December 2000 hearing in the civil action. According to plaintiffs, the circumstances "surrounding the incident raises [sic] the facts from which hostility can be inferred."

Malice means "actuated by a wrongful motive, i.e., the party must have had in mind some evil or sinister purpose." Centers, 99 Cal.App.2d at 541, 222 P.2d at 141. Malice is established when "the former suit was commenced in bad faith to vex, annoy or wrong the adverse party." Centers, 99 Cal.App.2d at 541, 222 P.2d at 142. Malice must be proven against a particular defendant to justify an award of compensatory damages against that defendant. Centers, 99 Cal.App.2d at 541-542, 222 P.2d at 142. Malice may be proved by direct evidence or may be inferred from all circumstances in the case. Centers, 99 Cal.App.2d at 542, 222 P.2d at 142. Malice may, but need not necessarily, be inferred from want of probable cause. Jackson v. Beckham, 217 Cal.App.2d 264, 273, 31 Cal. Rptr. 739, 745 (1963); Centers, 99 Cal. App.2d at 541, 222 P.2d at 142.

Mr. O'Rullian and Mr. Gray declared that they have never "harbored any animus, hostility or malice towards plaintiffs" and that their "feelings toward plaintiffs are neutral." Mr. O'Rullian and Mr. Gray further declared that their actions "were motivated by legitimate investigation and enforcement objectives" of EHS regarding enforcement of the California Health and Safety Code and EHS health permits. In addition, Mr. Gray notes that he testified at the criminal action's preliminary hearing and trial because Mr. Smith called him as a witness and that his testimony was not motivated by ill will or malice toward plaintiffs. Mr. O'Rullian points out that he testified at neither the preliminary hearing nor trial. For argument purposes, assuming Mr. O'Rullian and Mr. Gray harbored ill will toward plaintiffs, there is no evidence that Mr. O'Rullian and Mr. Gray acted on such ill will to pursue the criminal action or prosecution of plaintiffs.

Although plaintiffs claim that Mr. Buss had "ongoing malice toward these plaintiffs," the record lacks evidence of Mr. O'Rullian or Mr. Gray's wrongful motive or evil or sinister purpose toward plaintiffs. Despite the stray, hearsay remark attributed to Mr. O'Rullian, nothing suggests that Mr. O'Rullian or Mr. Gray acted in bad faith to vex, annoy or wrong plaintiffs. The County defendants correctly note that Mr. O'Rullian's remark is ambiguous as to whether it applied to EHS steps to revoke Action health permits, the civil action, or something else. Even construing the evidence and its reasonable inferences most favorably to plaintiffs, a conclusion of malice is not reached. The record is clear that Mr. O'Rullian and Mr. Gray's actions at issue arose in connection with their investigation and enforcement responsibilities.

Qualified Immunity

Mr. O'Rullian and Mr. Gray contend they are entitled to qualified immunity as to plaintiffs' malicious prosecution claims.

Qualified immunity is a defense to claims against governmental officials "arising out of the performance of their duties. Its purpose is to permit such officials conscientiously to undertake their responsibilities without fear that they will be held liable in damages for actions that appear reasonable at the time, but are later held to violate statutory or constitutional rights." Kraus v. Pierce County, 793 F.2d 1105, 1108 (9th Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1571, 94 L.Ed.2d 763 (1987). Qualified immunity protects section 1983 defendants "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936, 943 (9th Cir.2004). The "heart of qualified immunity is that it spares the defendant from having to go forward with an inquiry into the merits of the case. Instead, the threshold inquiry is whether, assuming that what the plaintiff asserts the facts to be is true, any allegedly violated right was clearly established." Kelley v. Borg, 60 F.3d 664, 666 (9th Cir.1995).

Qualified immunity is "an entitlement not to stand trial or face the other burdens of litigation." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). The privilege is "an immunity from suit rather than a mere defense to liability, and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." Mitchell, 472 U.S. at 526, 105 S.Ct. 2806, 86 L.Ed.2d 411. Courts stress "the importance of resolving immunity questions at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991). "Immunity ordinarily should be decided by the court long before trial." Hunter, 502 U.S. at 228, 112 S.Ct. at 537.

The issue of qualified immunity is "a pure question of law." Elder v. Holloway, 510 U.S. 510, 514, 114 S.Ct. 1019, 127 L.Ed.2d 344 (1994); Romero v. Kitsap County, 931 F.2d 624, 627-628 (9th Cir. 1991). As to summary judgment on qualified immunity, the Ninth Circuit Court of Appeals has explained:

Under Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), the first step in the qualified immunity analysis is "to consider the materials submitted in support of, and in opposition to, summary judgment in order to decide whether a constitutional right would be violated if all facts are viewed in favor of the party opposing summary judgment." Jeffers v. Gomez, 267 F.3d 895, 909 (9th Cir.2001). "If no constitutional violation is shown, the inquiry ends." Cunningham v. City of Wenatchee, 345 F.3d 802, 810 (9th Cir.2003). On the other hand, if "the parties' submissions" create a triable issue of whether a constitutional violation occurred, the second question is "whether the right was clearly established." Saucier, 533 U.S. at 201, 121 S.Ct. 2151, 150 L.Ed.2d 272. A constitutional right is clearly established when "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 202, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272.

Squaw Valley, 375 F.3d at 943 (Bold added).

The "contours" of the allegedly violated right "must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. . . . [I]n the light of preexisting law the unlawfulness must be apparent." Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). "If the officer's mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense." Saucier, 533 U.S. at 205, 121 S.Ct. 2151, 150 L.Ed.2d 272.

Qualified immunity "turn[s] primarily on objective factors": "Reliance on the objective reasonableness of an official's conduct, as measured by reference to clearly established law, should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The qualified immunity standard "gives ample room for mistaken judgments" by protecting "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986).

In their complaint, plaintiffs allege the criminal action "constituted violation of plaintiffs' rights under the Fourth Amendment of the United States Constitution in that the prosecution was undertaken . . . without probable cause to believe that [plaintiffs] . . . had violated the laws with which they were accused" in counts two and three. As noted by Mr. O'Rullian and Mr. Gray, plaintiffs claim that Mr. O'Rullian and Mr. Gray violated plaintiffs' right to be free of malicious prosecution without probable cause as to counts two and three. Plaintiffs claim they were denied "the right to be prosecuted fairly" based on a known lack of evidence against them.

Mr. O'Rullian and Mr. Gray correctly note that probable cause to prosecute count two is established by the collateral estoppel effects of the probable cause determination at the criminal action's preliminary hearing. Even with all facts viewed in their favor, plaintiffs can point to no constitutional violation in that probable cause supported prosecution of count two. Moreover, neither Mr. O'Rullian nor Mr. Gray violated plaintiffs' rights as to probable cause for count two in that Mr. Smith, not Mr. O'Rullian or Mr. Gray, initiated the prosecution and there is an absence of evidence to raise an inference that Mr. O'Rullian and Mr. Gray engaged in deception or acted with malice.

To recap, Mr. Smith declared that he "made the decision that probable cause existed to prosecute" plaintiffs "independent" of Mr. O'Rullian and Mr. Gray. Mr. Smith further declared that he "solely" decided to prosecute plaintiffs on count two after Mr. Smith reviewed documentation from Mr. O'Rullian and Mr. Gray and including written reports, photographs, interviews, and laboratory results. Mr. Smith further, visited and observed plaintiffs' properties. As to reports which Mr. O'Rullian provided to Mr. Smith, Mr. O'Rullian did not note violations of California Health and Safety Code section 25189.5, count two's operative statute. Mr. O'Rullian further declares that he was unaware that Mr. Smith intended to prosecute plaintiff for violations of California Health and Safety Code section 25189.5 and that he neither saw nor reviewed the criminal complaint prior to its filing.

Mr. Gray notes his passing connection to count two. Although Mr. Gray inspected plaintiffs' properties with other law enforcement officials, he prepared no reports. Like Mr. O'Rullian, Mr. Gray was unaware that Mr. Smith intended to prosecute plaintiffs for violation of Health & Safety Code section 25189.5 and neither saw nor reviewed the criminal complaint prior to its filing. Mr. Gray points out that after he reviewed the criminal complaint, he brought to Mr. Smith's attention a question about laboratory results regarding presence of hazardous waste. Mr. Smith declares that his pleading of count two "did not solely depend on the liquid in the tank," which was the subject of the laboratory results, in that "there was illegal disposal of waste oil which had been diluted with other substances." Mr. Gray correctly indicates that he "tried to provide exculpatory information to Smith regarding the charging allegations of Count

Turning to count three, Mr. O'Rullian and Mr. Gray correctly note that probable cause to prosecute count three is establish W by the collateral estoppel effects of the probable cause determination at the criminal action's preliminary hearing. As such, plaintiffs can point to no constitutional violation in that probable cause supported prosecution of count three. Moreover, neither Mr. O'Rullian nor Mr. Gray violated plaintiffs' rights as to probable cause for count three in that Mr. Smith, not Mr. O'Rullian or Mr. Gray, initiated the prosecution and there is an absence of evidence to raise an inference that Mr. O'Rullian and Mr. Gray engaged in deception or acted with malice. Mr. Smith declared that he conducted "an independent investigation" regarding count three and interviewed Ms. Kinney and Ms. Honeycutt. Count three is independent of Mr. O'Rullian and Mr. Gray's environmental health duties, and there is an absence of evidence that Mr. O'Rullian or Mr. Gray influenced Mr. Smith to charge plaintiffs with count three. Mr. Gray had no connection to events surrounding count three.

Considering the materials submitted by the parties and viewing facts in plaintiffs' favor, there is no evidence that Mr. O'Rullian and Mr. Gray violated plaintiffs constitutional rights relative to probable cause to prosecute counts two and three. With no violation of a constitutional right, this Court need not address whether alleged violated rights were clearly established. Mr. O'Rullian and Mr. Gray are entitled to qualified immunity as to plaintiffs' malicious prosecution claims.

Monell Liability

Although their complaint is unclear, plaintiffs appear to attempt to allege a Monell claim against EHS. As to EHS, plaintiffs' complaint appears to allege that EHS management created a policy to punish plaintiffs financially and emotionally. Plaintiffs vaguely claim that Mr. O'Rullian "created, dictated and enforced the governmental policy for the entity of which he as employed" and that Kern County through EHS leaders "endorsed" Mr. O'Rullian's conduct. EHS argues there is no Monell liability in the absence of a constitutional violation arising from an EHS policy or custom or evidence that Mr. O'Rullian was an authorized decision maker to impose Monell liability on EHS.

A local government unit may not be held liable for the acts of its employees under a respondeat superior theory. Monell v. Department of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Davis v. Mason County, 927 F.2d 1473, 1480 (9th Cir.), cert. denied, 502 U.S. 899, 112 S.Ct. 275, 116 L.Ed.2d 227 (1991); Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir.1989). The local government unit "itself must cause the constitutional deprivation." Gillette v. Delmore, 979 F.2d 1342, 1346 (9th Cir. 1992), cert. denied, 510 U.S. 932, 114 S.Ct. 345, 126 L.Ed.2d 310 (1993). Because liability of a local governmental unit must rest on its actions, not the actions of its employees, a plaintiff must go beyond the respondeat superior theory and demonstrate the alleged constitutional violation was the product of a policy or custom of the local governmental unit. City of Canton, Ohio v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); Pembaur v. City of Cincinnati, 475 U.S. 469, 478-480, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). To maintain a section 1983 claim against a local government, a plaintiff must establish the requisite culpability (a "policy or custom" attributable to municipal policymakers) and the requisite causation (the policy or custom as the "moving force" behind the constitutional deprivation). Monell, 436 U.S. at 691-694, 98 S.Ct. 2018, 56 L.Ed.2d 611; Gable v. City of Chicago, 296 F.3d 531, 537 (7th Cir.2002).

A plaintiff can establish a "policy or custom" by showing: (1) an express policy that, when enforced, causes a constitutional deprivation; (2) a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with force of law; or (3) an allegation that the constitutional injury was caused by a person with final policymaking authority. Gable, 296 F.3d at 537; Baxter v. Vigo County School Corp., 26 F.3d 728, 735 (7th Cir.1994). "[O]fficial policy must be the moving force of the constitutional violation' in order to establish the liability of a government body under § 1983." Polk County v. Dodson, 454 U.S. 312, 326, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) (quoting Monell, 436 U.S. at 694, 98 S.Ct. 2018, 56 L.Ed.2d 611); see Rizzo v. Goode, 423 U.S. 362, 370-377, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976) (general allegation of administrative negligence fails to state a constitutional claim cognizable under section 1983). A "plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights." Bryan County Commissioners v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). A plaintiff must demonstrate that a defendant's policy was "closely related to the ultimate injury." Harris, 489 U.S. at 391, 109 S.Ct. at 1206. "At the very least there must be an affirmative link between the policy and particular constitutional violation." Oklahoma City v. Tuttle, 471 U.S. 808, 823, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985).

EHS correctly points to the absence of a constitutional violation to support Monell liability. EHS correctly notes that plaintiffs have neither pled nor identified an express EHS policy or widespread practice to cause their alleged constitutional deprivation. EHS argues that the record reveals nothing to suggest a causal relationship between an EHS or Kern County custom, policy or practice and plaintiffs' alleged injuries. Plaintiffs' reference that Mr. O'Rullian spoke daily to his EHS supervisor regarding plaintiffs fails to establish an issue of fact regarding Monell liability. The record is devoid of evidence of an alleged constitutional violation arising from an policy, custom or widespread practice. Plaintiffs admit that Kern County's employment of Mr. O'Rullian "is insufficient to impose Monell liability."

Plaintiffs appear to rest their Monell claim on Mr. O'Rullian although plaintiffs present no evidence that he was a policymaker. EHS contends that Mr. O'Rullian, as an environmental specialist, was not a policymaker to invoke Monell liability in that he was neither part of EHS management nor authorized to make Kern County policy.

A "rule or regulation promulgated, adopted, or ratified by a local governmental entity's legislative body unquestionably satisfies Monell's policy requirements." Thompson, 885 F.2d at 1443. Official policy may derive from "a decision properly made by a local governmental entity's authorized decisionmaker — i.e., an official who `possesses final authority to establish [local government] policy with respect to the [challenged] action." Thompson, 885 F.2d at 1443 (quoting Pembaur, 475 U.S. at 481, 106 S.Ct. at 1299 (plurality opinion)). To the extent that "policy" and "custom" imply something beyond a single decision, official liability may be imposed "where a first-time decision to adopt a particular course of action is directed by a governmentally authorized decisionmaker." Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir.1991).

There is an absence of evidence that Mr. O'Rullian, an environmental specialist, is an authorized decisionmaker to invoke Monell liability. Plaintiffs raise no factual issue that Mr. O'Rullian had requisite authority to establish a policy regarding action challenged by plaintiffs. Plaintiffs improperly attempt to rest Monell liability on Mr. O'Rullian.

CONCLUSION AND ORDER

For the reasons discussed above, this Court:

1. GRANTS summary judgment for defendants William O'Rullian, Terry Gray and Kern County Environmental Health Services Department;

2. VACATES the May 15, 2006 trial; and

3. DIRECTS this Court's clerk to enter judgment in favor of defendants William O'Rullian, Terry Gray and Kern County Environmental Health Services Department and against plaintiffs Leroy Edwards, Kenneth Edwards and Roxanne Ayala.

IT IS SO ORDERED.

ORDER ON PLAINTIFFS' RECONSIDERATION MOTION (Doc. 158.)

INTRODUCTION^[1]

In this malicious prosecution action under 42 U.S.C. § 1983, plaintiffs Leroy Edwards, Kenneth Edwards and Roxanne Ayala (collectively "plaintiffs") seek reconsideration of summary judgment in favor of defendants William O'Rullian ("Mr.O'Rullian"), a Kern County Environmental Health Services Department ("EHS") environmental specialist, and EHS environmental health technician Terry Gray ("Mr.Gray").^[2] This Court considered plaintiffs' reconsideration motion on the record and without oral argument, pursuant to this Court's Local Rule 78-730(h). For the reasons discussed below, this Court DENIES plaintiffs' reconsideration motion.

BACKGROUND

With its March 30, 2006 decision, this Court granted the County defendants summary judgment on grounds that plaintiffs lacked evidence to support, and evidence negated, elements of plaintiffs' malicious prosecution and Monell claims. This Court further granted Mr. O'Rullian and Mr. Gray summary judgment on grounds they are entitled to qualified immunity as to actions of which plaintiffs complain. As to plaintiffs' malicious prosecution claims against Mr. O'Rullian and Mr. Gray, this Court specifically determined that:

1. Mr. O'Rullian, and Mr. Gray did not initiate the underlying criminal action against plaintiffs;

2. Mr. O'Rullian and Mr. Gray did not deceive Kern County Deputy District Attorney Craig A. Smith ("Mr. Smith") to prosecute plaintiffs wrongfully;

3. The underlying criminal action was not terminated in plaintiffs' favor for malicious prosecution purposes; and

4. Based on collateral estoppel effects of the preliminary hearing determination in the underlying criminal action, the absence of probable cause element is negated as to plaintiffs' malicious prosecution claims; and

5. The malice element is negated as to plaintiffs' malicious prosecution claims in that Mr. O'Rullian and Mr. Gray's actions at issue arose in connection with their environmental investigation and enforcement responsibilities, and the record lacks evidence of Mr. O'Rullian or Mr. Gray's wrongful motive or sinister purpose toward plaintiffs.

On April 10, 2006, plaintiffs filed and served their motion which this Court construes to seek reconsideration of summary judgment for Mr. O'Rullian and Mr. Gray.^[3] Plaintiffs argue that summary judgment was inappropriate "because a[sic] triable issues of fact exists [sic], and because the court incorrectly interpreted the facts and applied incorrect legal standards in relation to the issue of favorable determination [sic] and probable cause, and incorrectly considered some of the facts." Plaintiffs' papers review enumerated matters addressed by this Court in its summary judgment decision. This Court discerns that plaintiffs seek specifically to readdress whether:

1. Mr. O'Rullian deceived Mr. Smith to prosecute plaintiffs;

2. Mr. O'Rullian improperly induced a third-party witness to testify against plaintiffs Leroy Edwards ("Leroy") and Kenneth Edwards ("Kenneth");

3. The underlying criminal action against Leroy and Kenneth was terminated favorably toward them; and

4. Mr. O'Rullian and Mr. Gray acted with malice toward plaintiffs.

DISCUSSION

Plaintiffs apparently seek reconsideration under F.R.Civ.P. 59(e) ("motion to alter or amend judgment . . .") or F.R.Civ.P. 60(b) ("The court may relieve a party from a final judgment, order or proceeding . . ."). See Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir.1985). This Court construes plaintiffs' motion as seeking reconsideration of summary judgment for Mr. O'Rullian and Mr. Gray.^[4]

Either the moving or opposing party may seek reconsideration of a summary judgment ruling. Taylor v. Knapp, 871 F.2d 803, 805 (9th Cir.), cert. denied, 493 U.S. 868, 110 S.Ct. 192, 107 L.Ed.2d 146 (1989). Reconsideration is appropriate when the district court is presented with newly discovered evidence, committed clear error, or there is an intervening change in controlling law. School District No. 1J, Multnomah County, Oregon v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993), cert. denied, 512 U.S. 1236, 114 S.Ct. 2742, 129 L.Ed.2d 861 (1994). A motion for reconsideration of a summary judgment ruling is restricted:

Motions for reconsideration serve a limited function: to correct manifest errors of law or fact or to present newly discovered evidence. Such motions cannot in any case be employed as a vehicle to introduce new evidence that could have been adduced during pendency of the summary judgment motion. . . . Nor should a motion for reconsideration serve as the occasion to tender new legal theories for the first time.

Publisher's Resource, Inc. v. WalkerDavis Publications, Inc., 762 F.2d 557, 561 (7th Cir.1985) (quoting Keene Corp. v. International Fidelity Ins. Co., 561 F.Supp. 656, 665-666 (N.D.Ill.1982), affd, 736 F.2d 388 (7th Cir.1984) (emphasis in original)); see Novato Fire Protection Dist. v. United States, 181 F.3d 1135, 1142, n. 6 (9th Cir. 1999), cert. denied, 529 U.S. 1129, 120 S.Ct. 2005, 146 L.Ed.2d 955 (2000). Reconsideration should not be used "to argue new facts or issues that inexcusably were not presented to the court in the matter previously decided." See Brambles USA, Inc. v. Blocker, 735 F.Supp. 1239, 1240 (D.Del. 1990). Under this Court's Local Rule 78-230(k), a party seeking reconsideration must demonstrate "what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion" and "why the facts or circumstances were not shown at the time of the prior motion."

As discussed below, plaintiffs fail to demonstrate newly-discovered evidence, clear error or intervening change in controlling law to warrant reconsideration.

Prosecutorial Deception

This Court agrees with Mr. O'Rullian that plaintiffs, in their opening papers, appear to insinuate that Mr. O'Rullian deceived Mr. Smith to prosecute plaintiffs. Plaintiffs suggest that Mr. O'Rullian supplied Mr. Smith information but did not inform Mr. Smith that hazardous waste was not an issue to dissuade Mr. Smith to charge plaintiffs with violating California Health and Safety Code section 25189.5 (disposal, storage or transportation of hazardous waste without permits or at unauthorized points). In their reply papers, plaintiffs claim their "theory" is that Mr. O'Rullian and Mr. Gray "frustrated by the ongoing inability to regulate, acted collectively, individually and in concert" with Mr. Smith and "there was enough to take the matter to a jury."

With its summary judgment decision, this Court noted the absence of evidence that Mr. O'Rullian and Mr. Gray improperly exerted pressure on Mr. Smith, knowingly provided misinformation to Mr. Smith, concealed exculpatory evidence, or engaged in wrongful or bad faith conduct. Plaintiffs offer nothing to demonstrate the slightest error in such conclusion or of a purported "conspiracy." Mr. O'Rullian points out that plaintiffs appear to misconstrue Mr. O'Rullian's testimony at a September 2001 EHS administrative hearing and that such testimony is disconnected to plaintiffs' claims at issue here. Plaintiffs present nothing to warrant reconsideration as to their prosecutorial deception claims.

Alleged Inducement Of Testimony

To recap, in the underlying criminal action, Leroy and Kenneth were prosecuted under count three of the criminal complaint for violating California Penal Code section 182(a)(4) by conspiring unlawfully to defraud sisters Shirley Kinney ("Ms.Kinney") and Irma Honeycutt ("Ms.Honeycutt") to pay money by false pretenses in connection with a January 21, 2001 septic pumping job at Ms. Kinney and Ms. Honeycutt's mobile home. In their reconsideration papers, plaintiffs quote portions of Ms. Kinney's deposition which this Court considered when ruling on summary judgment. The upshot of plaintiffs' contentions is that Mr. O'Rullian and Mr. Smith represented to Ms. Kinney and Ms. Honeycutt that they would be repaid the $225 cost of Leroy and Kenneth's septic pumping job if they testified against Leroy and Kenneth.

Malicious prosecution actions are not limited to suits against prosecutors and may be pursued against other persons who have wrongfully caused the charges to be filed. Awabdy v. City of Adelanto, 368 F.3d 1062,1066 (9th Cir.2004); Galbraith v. County of Santa Clara, 307 F.3d 1119,-1126-1127 (9th Cir.2002). "The test is whether the defendant was actively instrumental in causing the prosecution." 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 476, p. 702. Generally, the decision to file a criminal complaint is presumed to result from an independent determination by the prosecutor and thus precludes liability for those who participated in the investigation or filed a report that resulted in initiation of proceedings. Awabdy, 368 F.3d at 1067; Smiddy r. Varney, 665 F.2d 261, 266-268 (9th Cir. 1981), cert. denied, 459 U.S. 829, 103 S.Ct. 65, 74 L.Ed.2d 66 (1982). Nonetheless, the presumption of prosecutorial independence does not bar a subsequent section 1983 claim "against state or local officials who improperly exerted pressure on the prosecutor, knowingly provided misinformation to him, concealed exculpatory evidence, or otherwise engaged in wrongful or bad faith conduct that was actively instrumental in causing the initiation of legal proceedings." Awabdy, 368 F.3d at 1067; see Galbraith, 307 F.3d at 1126-1127.

This Court carefully considered the evidence presented by plaintiffs. An interpretation of the evidence in light most favorable to plaintiffs does not reveal wrongful or bad faith conduct that was actively instrumental to initiate the criminal action against plaintiffs. The record is clear that for malicious prosecution purposes, Mr. Smith initiated the criminal action, not Mr. O'Rullian despite his comments to Ms. Kinney, Ms. Honeycutt or anyone else. Plaintiffs' reworking of their prior arguments raises no grounds to reconsider Mr. O'Rullian's conduct or applicable law in that Mr. O'Rullian at most indicated restitution was available to Ms. Kinney and Ms. Honeycutt.

Moreover, plaintiffs' assertions regarding the interaction among Mr. O'Rullian, Ms. Kinney and Ms. Honeycutt do not raise factual issues for reconsideration of the absence of probable cause element of plaintiffs' malicious prosecution claims. In the underlying criminal action, the preliminary hearing determination was unfavorable to Leroy and Kenneth to constitute prima facie evidence of probable cause. See Awabdy, 368 F.3d 1062, 1067. Despite Mr. O'Rullian's comment about restitution. plaintiffs failed to rebut a prima facie probable cause finding by showing the underlying criminal action "was induced by fraud, corruption, perjury, fabricated evidence, or other wrongful conduct undertaken in bad faith." Awabdy, 368 F.3d at 1067. In the absence of disputed facts, such as here, "the question whether there was probable cause to institute the prior action is purely a legal question" and "the existence or absence of probable cause has traditionally been viewed as a question of law to be determined by the court, rather than a question of fact for the jury." Sheldon Appel Company v. Albert & Oliker, 47 Cal.3d 863, 868, 875, 254 Cal.Rptr. 336, 337, 342, 765 P.2d 498 (1989). There is an absence of evidence that Mr. O'Rullian's conduct influenced pursuit of count three of the criminal complaint against plaintiffs for violating California Penal Code section 182(a)(4) (unlawful conspiracy to defraud and to obtain money by false pretenses). Plaintiffs again fail to raise factual issues on the absence of probable cause element of their malicious prosecution claims.

Favorable Termination

Plaintiffs seek to revisit the issue whether the underlying criminal action was terminated in their favor. Plaintiffs argue that a "favorable termination occurred in this case because prosecutor Craig Smith terminated his case when he was backed into a corner." This Court fully explored the favorable termination element in its summary judgment decision and dismissal of the subject criminal charges against plaintiffs in furtherance of justice. This Court found that the record and reasonable inferences therefrom indicate that the criminal charges at issue were not terminated in favor of plaintiffs for malicious prosecution purposes. Plaintiffs offer nothing new to merit further exploration and rest on arguments made to oppose summary judgment. Nonetheless, even assuming favorable termination for plaintiffs, plaintiffs fail to address meaningfully the other malicious prosecution elements on which this Court found evidence to negate or an absence of evidence to support. This Court's summary judgment decision thoroughly addressed plaintiffs' failure to raise genuine issues of material fact as to Mr. O'Rullian and Mr. Gray's initiation of the criminal action and malice and the absence of probable cause to pursue the criminal action.

Malice

Plaintiffs appear to argue there is evidence of malice in that Mr. O'Rullian offered to pay Ms. Kinney for testimony and supplied information to Mr. Smith when Mr. O'Rullian knew hazardous waste was not at issue and Mr. Smith prosecuted the underlying criminal action and civil proceedings against plaintiffs. Plaintiffs present no factual support to overcome the evidence that Mr. O'Rullian lacked malice toward plaintiffs and acted to pursue legitimate investigation and enforcement objectives. Plaintiffs fail to meet their burden to warrant reconsideration on the malice element of their malicious prosecution claims.

CONCLUSION AND ORDER

In sum, plaintiffs' papers are a scattered, shotgun approach raising several issues but offering little, if any, substance or evidentiary support. Plaintiffs fail to satisfy reconsideration requirements, including the specific mandates of this Court's Local Rule 78-230(k). Plaintiffs fail to demonstrate newly-discovered evidence, clear error or intervening change in controlling law to warrant reconsideration of matters raised in their papers.

For the reasons discussed below, this Court DENIES plaintiffs' reconsideration motion.

IT IS SO ORDERED.

NOTES

[1] Pursuant to 28 U.S.C. § 636(c) and F.R.Civ.P. 73, the parties consented to proceed before a United States Magistrate Judge, and by a September 27, 2004 order, this action was assigned to United States Magistrate Judge Lawrence J. O'Neill for all further proceedings.

[2] EHS, Mr. O'Rullian and Mr. Gray will be referred to collectively as the "County defendants."

[3] Roxanne Ayala ("Ms.Ayala") was Roxanne. Edwards' married name. Currently, Ms. Ayala is known as Ms. Edwards. For convenience, this Court will refer to her as Ms. Ayala in that she used that name at times relevant to plaintiffs' claims.

[4] This Court carefully reviewed and considered all argument, points and authorities, declarations, depositions, exhibits, statements of undisputed facts and responses thereto, objections and other papers filed by the parties. Omission of reference to an argument, document, paper or objection is not to be construed to the effect that this Court did not consider the argument, document, paper or objection. This Court thoroughly reviewed and considered the evidence it deemed admissible, material and appropriate for summary judgment.

[5] Hereinafter, "count two" will refer to the criminal complaint's count two to charge that plaintiffs committed a felony by violating California Health and Safety Code section 25189.5 (disposal, storage or transportation of hazardous waste without permits or at unauthorized points).

[6] Hereinafter, "count three" will refer to the criminal complaint's count three to charge that plaintiffs committed a felony by violating California Penal Code section 182(a)(4) (unlawful conspiracy to defraud and to obtain money by false pretenses).

Counts two and three are the subjects of plaintiffs' malicious prosecution claims.

[7] In their summary judgment opposition papers, plaintiffs take the position "that the government and their [sic] agents, knew or hod all of the information to know the truth, but disregarded that knowledge in order to `felonize' and destroy by misuse of the judicial process these persons with whom they had been unsuccessful in imposing legal restraint."

[1] Pursuant to 28 U.S.C. § 636(c) and F.R.Civ.P. 73, the parties consented to proceed before a United States Magistrate Judge, and by a September 27, 2004 order, this action was assigned to United States Magistrate Judge Lawrence J. O'Neill for all further proceedings.

[2] EHS, Mr. O'Rullian and Mr. Gray will be referred to collectively as the "County defendants."

[3] Plaintiffs papers do not indicate that plaintiffs seek reconsideration of summary judgment for EHS and against plaintiffs' based on Monell liability.

[4] This Court rejects Mr. O'Rullian and Mr. Gray's argument that plaintiffs untimely filed their motion within 10 days as required by F.R.Civ.P. 59(b). Although this Court signed its summary judgment decision on March 28, 2006, this Court's clerk served and entered on the docket the decision and judgment on March 30, 2006. Time limits for plaintiffs' motion ran from March 30, 2006, and their motion satisfied a 10-day filing limit in accordance with F.R.Civ.P. 6(a)'s time calculation.