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LAW OFFICE OF STEWART KATZ STEWART KATZ, State Bar #127425 555
University Avenue, Suite 270 Sacramento, California 95825
Telephone: (916) 444-5678 Attorney for Plaintiff RICHARD MALOTT
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA RICHARD MALOTT, Plaintiff,
vs. PLACER COUNTY; NEVADA COUNTY; SACRAMENTO COUNTY; Placer
County Sheriffs Department Deputy KEN ADDISON; Placer County
Sheriffs Department Undersheriff DEVON BELL; Placer County Sheriff
EDWARD BONNER; Sacramento County Sheriffs Department Deputy JAVIER
BUSTAMANTE; Nevada County Sheriffs Department Deputy DAVE
DEVOGELAIRE; Sacramento County Sheriffs Department Deputy DARIN
EPPERSON; Placer County Sheriffs Department Deputy MARK FAIN;
Placer County Sheriffs Department Detective MATT HARDCASTLE;
Sacramento County Sheriffs Department Detective MICHELLE HENDRICKS;
Sacramento County Sheriffs Department Sheriff SCOTT JONES; Nevada
County Sheriffs Department Administrative Assistant DONNA NELSON;
Nevada County Sheriffs Department Sheriff KEITH ROYAL; Nevada
County Sheriffs Department Undersheriff JOE SALIVAR; and DOES 1
through 25, inclusive, Defendants.
___________________________________/
NO.
COMPLAINT FOR VIOLATION OF CIVIL RIGHTS AND STATE LAW
JURY TRIAL DEMANDED
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Plaintiff Richard Malott complains and alleges as follows:
I. INTRODUCTION
1. This is a civil rights action with supplemental state law
claims arising from
multiple violations of Plaintiff Richard Malotts (hereinafter
Malott) rights under the
United States Constitution, California Constitution and laws of
the United States and the
State of California. All claims alleged herein flow directly,
albeit unexpectedly, from
Malotts misdemeanor arrest for illegally carrying a concealed
handgun after he was pulled
over for rolling through a stop sign on April 25, 2013 in
Sacramento County. While in the
back of the patrol car, Malott experienced a medical emergency
which resulted in his being
taken to the hospital by ambulance and admitted into the
hospital. Prior to the arrival of the
ambulance, in an attempt to prove to his partner that Malott was
faking, one of the deputies
decided to gratuitously apply unwarranted pain compliance
techniques in a manner akin to
kicking away someones crutches to see if they will fall down.
Following his arrest, Malotts
personal diary was illegally removed from his vehicle and
illegally read by the officers. As a
result of a fanciful misreading that defies rational
explanation, detectives from Sacramento
and Placer Counties working in conjunction embraced a delusional
interpretation of the
diary and subsequently published patently libelous statements
about Malott to his friends,
acquaintances and employees, causing a restraining order to be
filed against him. Malotts
attempts to contest the restraining order were thwarted by
various law enforcement officers
and agencies who ignored court issued subpoenas for witnesses
and documents that were
necessary for his case. Malott subsequently complained to
appropriate governmental
agencies about his treatment by the arresting officers and other
officials conduct in
connection with the restraining order. As a result of these
complaints, Placer County
repeatedly sent deputies acting as enforcers to Malotts property
to deter any further
complaining to officials. On one occasion, deputies climbed over
a locked gate and on at
least one other occasion they entered Malotts home.
Subsequently, the Nevada County
Sheriffs Department was made aware of the nature of these
illegal acts and chose to ignore
their illegal nature and assist in a cover up.
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2. Malotts rights as described herein were violated by each of
the defendants Ken
Addison, Devon Bell, Edward Bonner, Javier Bustamante, Dave
DeVogelaere, Darin
Epperson, Mark Fain, Matt Hardcastle, Michelle Hendricks, Scott
Jones, Donna Nelson,
Keith Royal, Joe Salavar and by the Counties of Nevada, Placer
and Sacramento.
II. JURISDICTION
3. This Complaint seeks damages and attorneys fees pursuant to
Title 42 U.S.C.
1983 and 1988 for multiple violations of Malotts civil rights.
Jurisdiction is founded upon
Title 28 U.S.C. 1331 and 1343. This Court has supplemental
jurisdiction over Malotts
state law claims pursuant to 28 U.S.C. 1367.
III. VENUE
4. Malotts claims arose in the counties of Nevada, Placer and
Sacramento, in
California. Venue lies in the Eastern District of California
pursuant to 28 U.S.C.
1391(b)(2).
IV. PARTIES
5. Richard Malott is a resident of Nevada City, California.
6. Defendant Nevada County is a public entity organized and
existing under the laws
of the State of California.
7. Defendant Placer County is a public entity organized and
existing under the laws of
the State of California.
8. Defendant Sacramento County is a public entity organized and
existing under the
laws of the State of California.
9. Defendant Javier Bustamante was a Sheriffs Deputy with the
Sacramento County
Sheriffs Department and was acting in the scope and course of
his employment at all times
mentioned in this complaint.
10. Defendant Darin Epperson was a Sheriffs Deputy with the
Sacramento County
Sheriffs Department and was acting in the scope and course of
his employment at all times
mentioned in this complaint.
11. Defendant Matt Hardcastle was a Detective with the Placer
County Sheriffs
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Department and was acting in the scope and course of his
employment at all times mentioned in
this complaint.
12. Defendant Michelle Hendricks was a Detective with the
Sacramento County
Sheriffs Department and was acting in the scope and course of
her employment at all times
mentioned in this Complaint.
13. Defendant Scott Jones was the Sheriff of Sacramento County,
California and was
acting in the scope and course of his employment at all times
mentioned in this complaint.
14. Defendant Keith Royal was the Sheriff of Nevada County,
California and was
acting in the scope and course of his employment at all times
mentioned in this complaint.
15. Defendant Joe Salavar was the Undersheriff of Nevada County,
California and
was acting in the scope and course of his employment at all
times mentioned in this
complaint.
16. Defendant Donna Nelson was the Administrative Assistant to
Defendant Royal
and was acting in the scope and course of her employment at all
times mentioned in this
complaint.
17. Defendant Mark Fain was a Sheriffs Deputy with the Placer
County Sheriffs
Department and was acting in the scope and course of his
employment at all times
mentioned in the complaint.
18. Defendant Edward Bonner was the Sheriff of Placer County and
was acting in
the scope and course of his employment at all times mentioned in
the complaint.
19. Defendant Devon Bell was the Undersheriff of Placer County
Sheriffs
Department and was acting in the scope and course of his
employment at all times
mentioned in the complaint.
20. Defendant Ken Addison was a Sheriffs Deputy with the Placer
County Sheriffs
Department and was acting in the scope and course of his
employment at all times
mentioned in this complaint.
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21. Defendant Dave DeVogelaere was a Sheriffs Deputy with the
Nevada County
Sheriffs Department and was acting in the scope and course of
his employment at all times
mentioned in this complaint.
22. The true names and identities of Does 1 through 10 are
presently unknown to
Malott. Malott alleges on information and belief that each of
Defendants Does 1 through 10
were employees of either the Sacramento County Sheriffs
Department or the Placer County
Sheriffs Department. Malott alleges that each of Does 1 through
10 violated his rights when
each participated in a vague joint investigation between
Sacramento and Placer Counties
as described herein, targeting Malott specifically so as to
violate his rights under the Fourth
Amendment, as opposed to investigating any identifiable criminal
conduct. Malott will seek
to amend this complaint as soon as the true names and identities
of Does 1 through 10 have
been ascertained.
23. The true names and identities of Does 11 through 15 are
presently unknown to
Malott. Malott alleges on information and belief that each of
Does 11 through 15 was an
employee of the Placer County Sheriffs Department. Malott
alleges that each of Defendant
Does 11 through 15 violated Malotts rights when each accompanied
Defendant Addison in
unlawfully entering the Malott ranch on multiple occasions
between August 13, 2013 and
August 21, 2013 as alleged herein. Malott will seek to amend
this complaint as soon as the
true names and identities of Does 11 through 15 have been
ascertained.
24. The true names and identities of Does 16 through 20 are
presently unknown to
Malott. Malott alleges on information and belief that each of
Does 16 through 20 was an
employee of the Nevada County Sheriffs Department. Malott
alleges that each of Defendant
Does 16 through 20 violated his rights when each participated in
a cover up and active
concealment of the illegal conduct of Defendants Addison and
Does 11 through 15. Malott
will seek to amend this complaint as soon as the true names and
identities of Does 16
through 20 have been ascertained.
25. The true names and identities of Does 21 through 25 are
presently unknown to
Malott. Malott alleges on information and belief that each of
Does 21 through 25 was an
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employee of the Placer County Sheriffs Department. Malott
alleges that each of Does 21
through 25 violated his rights when each either assisted or
directed Defendant Addison to
threaten Malott, as described herein. Malott will seek to amend
this complaint as soon as the
true names and identifies of Does 20 through 25 have been
ascertained.
26. Defendants Addison, Bell, Bonner, Bustamante, DeVogelaere,
Epperson, Fain,
Hardcastle, Hendricks, Jones, Nelson, Royal, Salavar and Does 1
through 25 engaged in the
acts or omissions alleged herein under color of state law.
V. COMPLIANCE WITH GOVERNMENT TORT CLAIM PROCEDURES
27. Plaintiff filed a timely claim with Nevada County on January
3, 2014 as a pre-
requisite to the state law claims alleged herein pursuant to
California Government Code
810, et seq. By correspondence dated January 30, 2014, Malotts
Nevada County
governmental tort claim was rejected. This action has been filed
within six months of that
rejection, as required by law.
28. Plaintiff filed a timely claim with Sacramento County on
October 18, 2013 as a
pre-requisite to the state law tort claims alleged herein
pursuant to California Government
Code 810, et seq. Forty-five days have passed since the claims
were filed and the claim is
deemed rejected as a matter of law. This action has been timely
filed within six months of
the rejection, as required by law.
29. Plaintiff filed a timely claim with Placer County on
December 23, 2013 as a pre-
requisite to the state law claims alleged herein pursuant to
California Government Code
810, et seq. By correspondence dated February 11, 2014, Malotts
Placer County
governmental tort claim was rejected. This action has been filed
within six months of the
rejection, as required by law.
VI. FACTUAL ALLEGATIONS
30. Plaintiff Richard Malott is a forty-four year old divorced
male who, at all times
relevant and for most of his life, was a Nevada City resident in
Nevada County, California.
Malott lives in a detached single family home on one of five
contiguous parcels of land all
owned by his immediate family and the family trust. These five
parcels comprise a 129 acre
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property commonly called and referred to hereinafter as the
Malott ranch. There are five
single family residences and two guest houses on the Malott
ranch. Malotts residence sits
on a private road that is protected by multiple electronically
coded gates as well as over a
dozen conspicuously displayed signs indicating that the ranch is
private property and not
open to the public.
31. Malott is currently the Chief Executive Officer of a
privately held real estate
development and holding company. He is a college graduate, a
licensed California state real
estate broker, and holds a commercial pilots license.
Previously, he has contracted with
numerous federal agencies including the Department of Defense
and has served as a reserve
police officer and United States Senate intern.
32. On the evening of April 25, 2013, Malott was driving one of
several family ranch
vehicles, a Jeep Cherokee, in Fair Oaks, California.
33. Sacramento County Sheriffs Deputies Javier Bustamante and
Darin Epperson
conducted a traffic stop on Malott for rolling through a stop
sign.
34. Defendant Epperson requested that Malott exit his vehicle
and Malott complied.
35. Defendant Epperson placed Malott in handcuffs and conducted
a pat-down
search of Malott.
36. During the search, Defendant Epperson located a .22 caliber
Derringer handgun
which Malott carried for self-protection. The handgun was in
Malotts pocket.
37. At that time, Malott did not have a valid permit to carry a
concealed weapon,
although he had previously held a concealed carry weapons permit
and was not statutorily
ineligible from holding a concealed carry weapons permit.
38. Immediately after finding the handgun, Defendants Bustamante
and Epperson
placed Malott under arrest for carrying a concealed firearm
without a permit, a misdemeanor
offense.1
39. Malott was handcuffed and placed in the back of the police
patrol car.
1 The charges were later refiled as felonies based upon the
claim that the Derringer was registered to Malotts deceased father
25 years ago and not Malott.
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40. The elements of the offense of carrying a concealed firearm
without a permit
require simply that the person knowingly carry a firearm without
having a permit.
Accordingly, there was no need to further investigate the
crime.
41. Defendant Bustamante searched Malotts Jeep while Malott sat
in the back of the
patrol car.
42. In Malotts Jeep Cherokee, Defendant Bustamante located a
hard covered,
ordinary looking, commercially sold red book with the words
Daily Reminder Standard
Diary printed on the cover. The book is hereinafter referred to
as Malotts diary.
43. Malotts diary was closed and sitting on the passenger seat.
Its contents were not
viewable without opening the book.
44. Defendants Bustamante and Epperson removed the diary from
the car and read
portions of it out of boredom.
45. Subsequently, Defendants Bustamante and/or Epperson booked
the diary and
several selectively chosen items from the Jeep and booked them
into evidence.
46. While Malott was in the back of the police car, he began to
experience extreme
physical distress including chest pain, pain in his left arm,
nausea, lightheadedness, profuse
sweating and difficulty breathing.
47. Malott alerted Defendants Bustamante and Epperson to the
onset of his physical
distress.
48. Defendants Bustamante and Epperson asked Malott multiple
times if he was
okay. Malott told them that he was not okay and that he thought
he was having heat stroke
or some other medical emergency.
49. Malott pleaded for emergent medical care, however Defendants
Bustamante and
Epperson ignored his request for a substantial amount of time
and told Malott they believed
he was faking his symptoms and that he was still going to
jail.
50. While Malotts head was resting on the passengers side back
seat door,
Defendant Bustamante opened the door, causing Malotts head to
fall out of the car.
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Defendant Bustamante then closed the door on Malotts head and
then pushed his head back
into the police car.
51. Defendant Bustamante told Defendant Epperson that Malott was
playing them
and decided to attempt to prove that to Epperson by deliberately
causing Malott pain for the
purpose of seeing his reaction in a matter akin to kicking away
someones crutches to see if
they fall down.
52. While Malott was leaning forward with his head against the
back of the front
passengers seat, Defendant Bustamante used a small hard, narrow
object to make contact
with Malotts sternum. Upon information and belief, the object
was a Kubaton.
53. Defendant Bustamante dug the Kubaton against Malotts sternum
forcefully for
10 to 25 seconds. Upon information and belief, Defendant
Bustamante was administering a
pain compliance technique called a sternum rub.
54. Defendant Bustamante used the object against Malotts sternum
a second time,
pushing even harder and more forcefully for another 10 to 25
seconds, causing great pain
and bruising.
55. At both times Defendant Bustamante used the Kubaton on
Malott, there was no
objective justification for the use of a pain compliance
technique or for the application of
force aside from Bustamantes desire to show Epperson that Malott
was not having a
medical emergency. Malott had been compliant with all requests
and directions of the
deputies. Malott did nothing to reasonably suggest that he posed
any threat to the deputies as
he sat handcuffed in the back of the police car.
56. The Sacramento County Sheriffs Department and Sheriff Scott
Jones were on
actual notice of Defendant Bustamantes propensity to use
unreasonable force as a result of,
among other things, the Countys monetary settlement on the eve
of trial, and after the
denial of Bustamantes motion for summary judgment, a civil
rights suit in case number CIV
S-09-2245 GEB EFB, arising from Bustamantes shooting multiple
times at point blank
range and killing an unarmed citizen named Damian McMurray in
front of his mother and
other family members in October of 2008.
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57. Malott reported the injuries he sustained from Defendant
Bustamantes use of the
Kubaton to medical staff upon admission to the hospital later
that evening. Medical staff
documented the injuries. The injuries were further documented by
still and video
photographs taken at various times.
58. It has been commonly known among law enforcement
administrators since at
least 1991 and the publication of the Christopher Report that a
strong positive correlation
exists between the number of reported uses of force and the
likelihood of an officer using
excessive force. Despite having this knowledge, the Sacramento
County Sheriffs
Department consciously declines to track the number of reported
uses of force per officer.
As a result, the Sheriffs Department fails to take appropriate
corrective measures including
supervision, training and discipline of officers whose conduct
has identified them as being
at a greatly higher risk of using excessive force. Upon
information and belief, Defendant
Bustamante has reported uses of force at such a level that would
have put any reasonable
supervisor on notice of his need for training, supervision and
discipline. Had this been done,
Malotts physical injuries would have been avoided.
59. It finally dawned upon Defendants Bustamante and Epperson
that Malott was
actually in the throes of a real medical emergency. After
substantial delay, they requested
emergency medical care.
60. Paramedics responded and took Malott by ambulance to the
emergency room at
Mercy San Juan Hospital.
61. Hours later that same evening, Malott was admitted to the
hospital for a possible
cardiac event based upon the observations and test results
obtained while he was in the
emergency room.
62. Once Malott was admitted to the hospital, and likely in
order to avoid county
liability for Malotts medical bills, Defendants Bustamante
and/or Epperson decided to cite
Malott for his alleged Penal Code violations and release him
from custody.
63. Subsequently Defendants Bustamante and/or Epperson forwarded
the diary to
Defendant Michelle Hendricks, a Detective with the Sacramento
County Sheriffs
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Department, and/or Defendant Matt Hardcastle, a Detective with
the Placer County Sheriffs
Department. Defendants Hendricks and Hardcastle also read the
diary.
64. Upon information and belief, Defendants Hendricks,
Hardcastle and Does 1
through 10 were acting as part of some vague joint investigation
between Sacramento and
Placer Counties. The purpose of this joint investigation was to
target Malott specifically as
opposed to investigating any particular alleged criminal
conduct.
65. Malotts diary contained the type of entries that are
typically found in a persons
private journal, such as those regarding his going on charitable
aid missions, making
substantial donations to his church, foreign travels and travel
plans, past, present and
potentially future girlfriends, recollection of dreams, ideas
for self-improvement, trials and
tribulations of daily life, metaphysical musings and thoughts
and speculations on the
meaning and nature of life.
66. Noticeably absent from the diary were any bases for the
subsequent
misrepresentations and gross mischaracterizations that would be
made by Defendants
Hendricks and Hardcastle. That is, the diary contained no
threats, ideations of violence
towards any person, indications of illegal or perverse sexual
activities, or of an interest or
proclivity for any criminal conduct.
67. Defendant Hendricks, acting in conjunction with Defendant
Hardcastle and Does
1 through 10, proceeded to photocopy the diary and maliciously
published the diary to at
least three persons with whom Malott had long term
relationships. Specifically, Hendricks
and Hardcastle published the diary to Malotts former girlfriend
(hereinafter referred to as
C.C.), and his long-time friend Julie Ferneyhough (hereinafter
Ferneyhough), who,
although a registered nurse by training and licensure, was
working for the Malott family and
living with her family in one of the houses on the Malott ranch
at the time.
68. Although they acted in conjunction, Defendants Hendricks and
Hardcastle
conducted separate interviews during which each published the
contents of Malotts diary
and relayed false, erroneous or fictional information regarding
Malott which placed him in a
false light.
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69. In an interview at C.C.s home that was partially recorded,
Defendant Hendricks
showed both C.C. and Ferneyhough portions of Malotts diary that
contained entries about
them while asking questions in a way that clearly and falsely
implied that the diary
contained evidence of sexual perversion, cross-dressing, human
trafficking and alcohol and
gambling addictions.
70. During an interview with Ferneyhough, in regard to entries
in the diary that
referenced Ferneyhough, Defendant Hendricks stated I thought
youd be curious about
what hed written about you, and Dont you want to read it?
71. During this same interview, Defendant Hendricks would, at
times, turn the tape
recorder off, engage in witness coaching, and then turn the
recorder back on and resume the
interview.
72. During their respective interviews, both Defendants
Hendricks and Hardcastle
asked C.C. and Ferneyhough about various other women who were
referenced in the diary.
Defendant Hardcastle attempted to show Ferneyhough portions of
the diary and question her
about her knowledge of a former female friend of Malott who is
from Denmark.
73. Defendant Hendricks and Hardcastle knowingly, intentionally
and maliciously
published to C.C. and Ferneyhough false, erroneous or
fictionalized information about
Malott. The nature of the false, erroneous or fictionalized
information published was highly
offensive and placed Malott in a false and derogatory light.
Moreover, Defendants
Hendricks and Hardcastle did so with the specific intent that
the information given to
Ferneyhough would be further disseminated to Malott family
members, neighbors, mutual
friends and other employees of the Malott family.
74. Upon information and belief, the false, erroneous or
fictionalized information
about Malott published to C.C. by Defendant Hendricks and
Hardcastle includes, but is not
limited to the following: that Malott had alcohol and gambling
addictions, that he was
probably following C.C., that he was trying to intimidate C.C.,
that he intended to harm
C.C., that he was a toddler having a temper tantrum and that he
had been unhelpful and
evasive in regard to Defendant Hendricks investigation.
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75. Defendant Hendricks told both C.C. and Ferneyhough that
Malott had a
kidnapping and rape kit in the car when he was arrested. This is
untrue. There is not a
scintilla of evidence that Malott ever planned, intended,
attempted or even fantasized about
kidnapping or raping anyone. However, this falsehood was stated
to both C.C. and
Ferneyhough for the specific purpose of encouraging either to
initiate a legal action against
Malott.
76. At a later recorded interview at the Placer County Sheriffs
Department,
Defendant Hardcastle questioned Ferneyhough and Ferneyhoughs
husband, John, who were
both friends of Malotts dating back to college. Defendant
Hardcastle advised the
Ferneyhoughs that Placer County had Malott and his ranch under
surveillance and informed
them that their family needed to move out of the ranch because
their lives were in danger
and Placer County was going to be raiding the ranch. Hardcastle
implied there was going to
be a gunfight and told Julie Ferneyhough that if children were
killed in the process, it would
be on her.
77. Defendant Hardcastle also involved Placer County victims
advocate Paula
Michels, who likewise contacted Ferneyhough and told Ferneyhough
her life was in danger.
78. Defendant Hardcastle and Paula Michels both insinuated that
Placer County
would be eager to provide monetary victim assistance funds if
Ferneyhough would
cooperate by pressing false criminal charges against Malott for
threatening behavior.
79. Defendant Hendricks similarly urged C.C. to file a
restraining order against
Malott.
80. On May 23, 2012, as a result of Defendant Hendricks prodding
and intentional
dissemination of false information, C.C. filed a request for a
family court restraining order
against Malott in the Placer County Superior Court.
81. A hearing was scheduled for 8:30 a.m. on July 8, 2013 in the
Placer County
Historic Courthouse at 101 Maple Street, Auburn, CA 95603.
82. On July 1, 2013, Malott obtained from the Placer County
Superior Court a
subpoena which the court issued for Defendant Keith Royal,
Nevada County Sheriff, to
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appear in person on July 8, 2013 at 8:30 a.m. as a witness and
to produce records described
as any and all law enforcement reports and notes as it [sic]
relates to Richard Malott. A
true copy of the subpoena is attached hereto as Exhibit A.
83. The subpoena explicitly ordered Defendant Royal to appear in
person and
explicitly stated that [t]he procedure authorized by Evidence
Code 1560(b), 1561, and
1562 will not be deemed sufficient compliance with this
subpoena.
84. On July 2, 2013, Malott delivered the court issued subpoena
to the Nevada
County Sheriffs Department. Defendant Donna Nelson,
Administrative Assistant to
Defendant Royal, stamped the subpoena received in the Nevada
County Sheriffs Office at
8:12 a.m. on July 2, 2013.
85. Malott also attempted to provide the statutorily required
fees to the Nevada
County Sheriffs Department; however, Defendant Nelson refused to
tell Malott the required
amount and refused to take a check in any amount at that
time.
86. On July 3, 2013, Malott delivered a personal check in the
amount of $275 to the
Nevada County Sheriffs Office to pay for the requisite fees for
Defendant Royal to appear
as a witness in Malotts case.
87. Sometime between July 2, 2013 and July 8, 2013, Defendants
Nelson and Royal
conspired to fabricate a pre-textual and false basis upon which
they could claim either (1)
that Malott had insufficiently attempted to serve the subpoena
himself, or (2) that Malotts
delivery of the subpoena to the Nevada County Sheriffs
Department was deficient such that
subpoena could not be served on Defendant Royal in accordance
with the Sheriffs
Departments mandatory, non-discretionary duties under California
law.
88. On July 8, 2013, Defendant Royal failed to personally appear
at the hearing as
required by the subpoena.
89. Defendant Royal also failed to produce any documents as
required by the
subpoena.
90. Subsequently, Malott received a letter from Defendant Nelson
dated July 16,
2013. A true copy of this letter is attached hereto as Exhibit
B.
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91. Defendant Nelsons July 16, 2013 letter purported to return
Malotts subpoena
properly issued subpoena to Defendant Royal and Malotts check
for $275.00 on the
claimed basis that the subpoena was insufficiently served.
92. Defendant Nelsons letter falsely claimed, first, that
service was insufficient
under 414.10 of the California Code of Civil Procedure [s]ince
you [Richard Malott]
served the subpoena and are a party in the action.
93. Upon information and belief, both Defendants Royal and
Nelson were personally
aware that Malott did not himself serve the subpoena on
Defendant Royal; rather, Malott
delivered the subpoena and fees to the Nevada County Sheriffs
Office for service upon
Defendant Royal in accordance with 26608 of the California
Government Code and
262.1 of the California Code of Civil Procedure.
94. Defendant Nelsons letter falsely claimed, second, that
service was insufficient
because California Evidence Code 1560 requires at least a 15-day
notice for service of civil
subpoenas duces tecum. In fact, as stated on the face of the
subpoena, the 15 day notice
period of 1560 did not apply to the subpoena.
95. Upon information and belief, both Defendants Royal and
Nelson were personally
aware that the subpoena explicitly ordered that the procedures
of 1560(b) will not be
deemed sufficient compliance with this subpoena.
96. Malott also obtained a properly issued subpoena for
Defendant Mark Fain, Placer
County Sheriffs Deputy, to appear in person on July 8, 2013 at
8:30 a.m. as a witness. A
true copy of this subpoena is attached hereto as Exhibit C.
97. On information and belief, Defendant Fain was properly
served with the
subpoena.
98. Defendant Fain failed to appear at the July 8, 2013 hearing
in compliance with
the properly served subpoena.
99. Malott additionally subpoenaed and tendered the proper fees
for four Sacramento
County sheriffs deputies to attend the July 8, 2013 hearing.
Malott did not, however, serve
those subpoenas on the correct sheriffs office, although he is
informed and believes that the
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subpoenas were forwarded to the correct sheriffs office. The
four sheriffs deputies from
Sacramento County failed to appear at the hearing. Malotts check
to Sacramento County
was never cashed.
100. As a direct and proximate result of each of Defendants
Royal and Fain failing to
appear and/or produce documents at the July 8, 2013 hearing,
Malott was unable to
effectively present his defense and the court entered a
restraining order against him in that
case.
101. Malott submitted complaints to the Federal Bureau of
Investigation and
Department of Justice complaining that (1) Sacramento County
Sheriffs Deputies
Bustamante and Epperson had used excessive force against him on
April 25, 2013; (2)
employees of Nevada, Placer and Sacramento Counties had failed
to comply with his court
issued subpoenas for the July 8, 2013 hearing; and (3) that
Placer County officials had
participated in an ex parte communication with Commissioner Dirk
Amara, who presided
over the July 8, 2013 hearing.
102. On or about August 8, 2013 during a break in proceedings at
a subsequent and
unrelated hearing, Malott informed Commissioner Amara that he
had filed said complaints
with the Federal Bureau of Investigation and the Department of
Justice. Malott requested
that Commissioner Amara recuse himself, and Amara did in fact
recuse himself from the
case.
103. Subsequently, on at least three occasions between August
13, 2013 and August
21, 2013, and possibly as many as five occasions during that
time period, Defendant
Addison, Placer County Sheriffs Deputy, and at least one other
sheriffs deputy, identified
herein as Does 11 through 15, went to the Malott ranch. The
purpose of the visit was
purportedly to speak with Malott, but in reality, to threaten
Malott that there would be
further consequences to his complaining about Placer County
officials.
104. Upon information and belief, Defendant Addison in
particular was selected for
this job because of his physically intimidating appearance.
Defendant Addison stands six
feet and three inches tall and weighs approximately 300 pounds.
In earlier deposition
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testimony (Farias v. State of California, et al., No. 08-cv-1493
E.D. Cal.), he readily
acknowledged that he is often assigned to search warrant details
as the door breaker.
105. Defendant Addison and Does 11 through 15 wore black
swat-type technical gear
which bore little or no indicia that they were law
enforcement.
106. Upon information and belief, on at least one occasion,
Defendant Addison and/or
Does 16 through 20 entered into Malotts unlocked residence.
107. Defendant Addison and Does 11 through 15 did not have a
warrant, probable
cause, or consent authorizing their entry onto the Malott ranch
on any occasion between
August 13, 2013 and August 21, 2013, nor were any exigent
circumstances present.
108. Upon information and belief, neither Defendant Addison nor
any Doe believed
that a warrant, probable cause or consent had authorized their
entry onto the Malott ranch on
any occasion between August 13, 2013 and August 21, 2013, nor
did they believe that
exigent circumstances existed in regard to Malott, Malotts
residence or the Malott ranch.
109. Malott reported to Nevada County Sheriffs Department the
illegal conduct by
Defendants Addison and Does 11 through 15 in conducting multiple
unreasonable searches
and making threats. Defendant Dave DeVogelaere, Nevada County
Sheriffs Deputy, thus
became aware of the illegal conduct by Defendants Addison and
Does 11 through 15.
110. Defendants Addison, DeVogelaere, Does 11 through 15 and,
additionally, Does
16 through 20, who are other employees of Nevada County,
conspired to fabricate a false
and pre-textual reason for the unlawful entry by Defendant
Addison and Does 11 through 15
onto the Malott ranch.
111. Subsequently, Defendant Addison falsely claimed that he and
Defendant Does 11
through 15 had entered the Malott ranch on each occasion between
August 13, 2013 and
August 21, 2013 for the purpose of conducting welfare
checks.
112. On information and belief, neither Defendant Addison nor
any Doe relayed any
purported concerns about the well-being of any person at the
Malott ranch to any law
enforcement official in Nevada County, which is where the ranch
is located. The claimed
welfare checks were purely pre-textual.
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113. Although Placer County is contiguous to Nevada County, the
county in which the
Malott ranch is located, the distance from the Placer County
Sheriffs Department to the
Malott ranch is approximately 35 miles.
114. Upon information and belief, Defendants Addison and Does 11
through 15
entered Malotts property on each occasion between August 13,
2013 and August 21, 2013
for the purpose of harassing, intimidating, and/or threatening
Malott.
115. On information and belief, on one of these occasions,
Nevada County Sheriffs
Deputies responded to the Malott ranch on a report relayed
through the California Highway
Patrol dispatch of unknown black-clad armed subjects prowling
around. This led to an
unusual confrontation between six Nevada County Sheriffs
Deputies and the Placer County
interlopers which was later explained away in Nevada County
Sheriffs Department
documentation as a failure to communicate between the sheriffs
departments of the two
counties, as opposed to Nevada County deputies responding to an
unlawful invasion of the
Malott ranch.
116. On information and belief, on the final occasion that
Defendant Addison and
Does 11 through 15 went to the Malott ranch, they were unable to
enter the property by way
of the electronic gates through which they had previously
obtained unauthorized access. On
this final occasion, said defendants entered the Malott ranch by
climbing over a locked gate.
117. Defendant DeVogelaere, Defendant Royal and Does 16 through
20 knew about
the illegal conduct of Defendants Addison and Does 11 through 15
in conducting multiple
unreasonable searches while trespassing on the Malott ranch.
118. Defendant DeVogelaere and Does 16 through 20 assisted in a
cover up of the
illegal actions of Defendants Addison and Does 11 through 15 by
failing to properly
document or act upon the illegal actions of Defendants Addison
and Does 11 through 15.
119. On or about August 20, 2013, Defendant Addison initiated
telephone contact
with Richard Malotts brother, Russell Malott (hereinafter
Russell).
120. Russell has been a peace officer for 25 years and a member
of the California
State Bar for more than 20 years.
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121. Defendant Addison told Russell that he was tired of chasing
Malott. Defendant
Addison threatened to have a Placer county arrest warrant issued
for Malotts arrest should
Malott refuse to meet with Defendant Addison to Addisons
satisfaction. Upon information
and belief, Deputy Addison made this threat with the agreement
of, or at the direction of,
defendant Does 21 through 25, who are employees of Placer
County. See Declaration of
Russell Malott, attached hereto as Exhibit D.
122. On April 29, 2013, Malott initiated a citizens complaint in
Sacramento County
pursuant to 832.5 of the California Penal Code complaining of
the conduct of Defendants
Bustamante and Epperson on April 25, 2013 and injuries they
caused.
123. Sergeant Robin Kolb with the Sacramento County Sheriffs
Department sent
Malott a letter requesting a signed authorization for release of
medical records and
photographs related to the injuries Malott sustained on April
25, 2013.
124. Malott attempted repeatedly and unsuccessfully to contact
Sergeant Kolb to
provide the requested records, as well as still photographs and
video depicting his injuries.
125. Malott also tried unsuccessfully to personally deliver the
information requested
about his injuries to Sergeant Kolb.
126. In a letter dated October 10, 2013, Defendant Scott Jones,
Sacramento County
Sheriff, rejected Malotts Sacramento County citizens complaint.
Defendant Jones informed
Malott that the Internal Affairs investigation was completed.
Defendant Jones claimed the
information obtained in the investigation revealed a lack of
substantial evidence to support
Malotts claims. This was despite the fact that the medical
records requested by Sergeant
Kolb had not been received or reviewed by anyone in Internal
Affairs. Malott, through his
attorney, responded to Defendant Jones expressing disappointment
that a decision had been
rendered without reviewing the requested medical records and
photographs, and renewing
his offer to make those available to Jones and/or subordinates
for their review and
consideration, however this communication fell on deaf ears.
True copies of Defendant
Jones October 10, 2013 letter and Malotts responsive letter are
attached hereto as Exhibit
E.
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127. On January 15, 2014, Malott initiated a citizens complaint
in Nevada County
pursuant to 832.5 of the California Penal Code complaining of
the misconduct alleged
herein by Defendants Nelson, Royal and DeVogelaere.
128. In a letter dated March 13, 2014, Defendant Joe Salivar,
Nevada County
Undersheriff, rejected Malotts Nevada County citizens complaint
as unsubstantiated.
129. On January 15, 2014, Malott initiated a citizens complaint
in Placer County
pursuant to 832.5 of the California Penal Code complaining of
the misconduct alleged
herein by Defendants Addison, Fain and Does 16 through 20.
130. On February 5, 2014, Defendant Devon Bell, Placer County
Undersheriff and/or
Defendant Edward Bonner, Placer County Sheriff, rejected Malotts
Placer County citizens
complaint as frivolous.
VII. CLAIMS FOR RELIEF
FIRST CAUSE OF ACTION Unreasonable Seizure/ Excessive Force
(Violation of the Fourth Amendment to the U.S. Constitution:
Actionable under 42 U.S.C. 1983)
(Against Defendants Bustamante and Epperson)
131. Plaintiff re-alleges and incorporates by reference
paragraphs 1 through 130 as
though fully set forth herein.
132. The actions of Deputies Bustamante and Epperson interfered
with the exercise
and enjoyment of Malotts civil rights as guaranteed by the
Fourth Amendment to the U.S.
Constitution. Specifically, Defendants, and each of them,
interfered with Malotts rights
when Defendant Bustamante closed Malotts head in the police car
door and forcefully
applied a Kubaton against Malotts sternum while Malott was
seated handcuffed in the back
of the police car while Defendant Epperson stood by and failed
to intervene.
133. As a direct and proximate result of Defendants actions
and/or omissions, Malott
suffered unreasonable interference with his personal liberty,
physical injury, pain and
suffering, humiliation, emotional distress and other
injuries.
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134. The aforementioned acts and/or omissions of said Defendants
were willful,
intentional, wanton, reckless and/or accomplished with a
conscious disregard of Malotts
rights entitling Malott to an award of punitive damages.
SECOND CAUSE OF ACTION Unreasonable Seizure/ Excessive Force
(Violation of the Cal. Constitution Art. I 1, 13 and Cal. Civil
Code 43: Actionable under Cal. Civil Code 52.1(b)/Bane Act)
(Against Defendants Bustamante and Epperson)
135. Plaintiff re-alleges and incorporates by reference
paragraphs 1 through 134 as
though fully set forth herein.
136. The actions of Defendants Bustamante and Epperson, as
alleged herein,
interfered with the exercise and enjoyment of Malotts civil
rights as guaranteed by Article I,
1 and 13 of the California Constitution. Specifically,
Defendants, and each of them,
interfered with Malotts rights when Defendant Bustamante closed
Malotts head in the
police car door and forcefully applied a Kubaton against Malotts
sternum while Malott was
seated handcuffed in the back of the police car and while
Defendant Epperson stood by and
failed to intervene.
137. Defendants actions constituted an excessive use of force, a
violation of Malotts
right to bodily integrity, and further interfered with Malotts
personal rights as guaranteed
by California Civil Code 43.
138. As a direct and proximate result of Defendants actions
and/or omissions, Malott
suffered unreasonable interference with his personal liberty,
physical injury, pain and
suffering, humiliation, emotional distress, and other
injuries.
139. Defendants violations of Malotts rights as guaranteed by
California Civil Code
52.1 (Bane Act) entitles Malott to compensatory and punitive
damages and attorneys fees
as provided for in 52.1(b) and 52 and requested herein.
140. The aforementioned acts and/or omissions of said Defendants
were willful,
intentional, wanton, reckless, and/or accomplished with a
conscious disregard for Malotts
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rights as secured by Civil Code 51.2, thereby entitling Malott
to an award of punitive
damages under 52(b)(1).
THIRD CAUSE OF ACTION Battery- Cal. State law
(Against Defendants Sacramento County and Bustamante)
141. Plaintiff re-alleges and incorporates by reference
paragraphs 1 through 140 as
though fully set forth herein.
142. The conduct of Defendant Bustamante as alleged herein,
including but not
limited to Defendant Bustamantes actions of closing Malotts head
in the door of the police
car and forcefully applying a Kubaton to his sternum constituted
a battery.
143. Said conduct was a proximate cause of Malotts injuries and
damages alleged
herein.
144. The aforementioned acts and/or omissions by Defendant
Bustamante were
willful, intentional, wanton, reckless, and/or accomplished with
a conscious disregard of
Malotts rights entitling Malott to an award of punitive
damages.
145. Defendant Sacramento County is vicariously liable for the
Defendant
Bustamantes conduct under California Government Code 815.2.
FOURTH CAUSE OF ACTION Failure to Furnish/Summon Medical
Care
(Cal. Govt. Code 845.6) (Against Defendants Sacramento County,
Bustamante and Epperson)
146. Plaintiff re-alleges and incorporates by reference
paragraphs 1 through 145 as
though fully set forth herein.
147. Defendants Bustamante and Epperson knew or had reason to
know that Malott
was in need of immediate medical care and failed to take
reasonable action to summon such
medical care or provide that care, resulting in the exacerbation
of Malotts injuries and a
violation of California state law and specifically California
Government Code 845.6. This
conduct proximately caused damage and injuries to Malott.
148. Defendant Sacramento County is vicariously liable for the
conduct of
Bustamante and Epperson.
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149. The actions of Defendants Bustamante and Epperson were
malicious, reckless,
and/or accomplished with a conscious disregard of Malotts rights
thereby entitling him to
an award of exemplary and punitive damages according to proof
and as permitted by law.
FIFTH CAUSE OF ACTION Failure to Supervise, Investigate and
Discipline
(Actionable under 42 U.S.C. 1983) (Against Defendants Nevada
County, Placer County, Sacramento County and Jones)
150. Plaintiff re-alleges and incorporates by reference
paragraphs 1 through 149 as
though fully set forth herein.
151. The aforementioned violation of Malotts federal
constitutional rights by
Defendants Addison, Bustamante, DeVogelaere, Epperson, Fain,
Nelson, Royal and Does
11 through 25 occurred as a result of the failure of Defendants
Nevada County, Placer
County, Sacramento County, Bonner, Jones and Royal to adequately
supervise, investigate
and discipline employee conduct.
a. Sacramento County and Jones
The violations of Malotts federal constitutional rights by
Defendants
Bustamante and Epperson occurred as a result of the failure by
Defendants Sacramento
County and Jones to adequately supervise, investigate and
discipline officers use of force
and excessive force. The failure by Defendant Sacramento County
andJones to supervise,
investigate and discipline officers use of force and excessive
force amounted to deliberate
indifference to the rights and privileges of citizens of
Sacramento County to be free of
excessive force.
b. Nevada County and Royal
The violations of Malotts federal constitutional rights by
Defendants
DeVogelaere, Nelson, Royal and Does 16 through 20 ooccurred as a
result of the failure by
Defendants Nevada County and Royal to adequately supervise,
investigate and discipline
employees violations of individual rights under the First
Amendment and the Equal
Protection and Due Process Clauses of the Fourteenth Amendment
in regard to the service
of subpoenas, and under the Fourth Amendment in regard to the
right to be free of
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unreasonable searches. Said Defendants failure to supervise,
investigate and discipline its
employees amounted to deliberate indifference to the rights and
privileges of citizens of
Nevada County under the First Amendment, Fourth Amendment and
under the Equal
Protection and Due Process Clauses of the Fourteenth
Amendment.
c. Placer County and Bonner
The violations of Malotts federal constitutional rights by
Defendants
Addison, Fain and Does 11 through 15 and 21 through 25 occurred
as a result of the failure
by Defendants Placer County and Bonner to adequately supervise,
investigate and discipline
employees violations of individual rights under the First
Amendment and the Equal
Protection and Due Process Clauses of the Fourteenth Amendment
in regard to the service
of subpoenas, and under the Fourth Amendment in regard to the
right to be free of
unreasonable searches and seizures. Said Defendants failure to
supervise, investigate and
discipline its employees amounted to deliberate indifference to
the rights and privileges of
citizens of Placer County under the First Amendment, Fourth
Amendment and under the
Equal Protection and Due Process Clauses of the Fourteenth
Amendment. Defendants
failure to supervise, investigate and discipline in regard to
Fourth Amendment violations is
further underscored by the fact that the unreasonable searches
by Defendants Addison and
Does 11 through 15 occurred on multiple days and involved
substantial officer hours.
152. The inaction of said Defendants was a direct and proximate
cause of the injuries
suffered by Malott in that said Defendants tacitly encouraged
and/or approved of the
violation of Malotts rights and/or failed to adequately
supervise, investigate or discipline
employees to prevent the constitutional violations alleged
above.
153. Said Defendants knew or should have known that such conduct
was unjustified
and would result in violations of Malotts constitutional
rights.
154. As a direct and proximate result of the aforementioned
practices, Malott suffered
injuries and damages as alleged herein.
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155. The actions of the individually named defendants were
malicious, reckless,
and/or accomplished with a conscious disregard of Malotts rights
thereby entitling him to
an award of exemplary and punitive damages according to proof
and as permitted by law.
SIXTH CAUSE OF ACTION Unreasonable Search/ Right to Privacy
(Violation of the Fourth Amendment to the U.S. Constitution:
Actionable under 42 U.S.C. 1983)
(Against Defendants Bustamante, Epperson, Hardcastle, Hendricks
and Does 1 through 10)
156. Plaintiff re-alleges and incorporates by reference
paragraphs 1 through 155 as
though fully set forth herein.
157. The actions by Defendants Bustamante, Epperson, Hardcastle,
Hendricks and
Does 1 through 10 of performing an unauthorized warrantless
search of the contents of the
diary without probable cause and without consent constituted an
illegal and unreasonable
search and seizure that violated Malotts rights under the Fourth
Amendment.
158. As a direct and proximate result of said acts and/or
omissions by said defendants,
Malott suffered unreasonable interference with his property,
humiliation, physical upset,
emotional distress and other injuries.
159. The aforementioned acts and/or omissions of said Defendants
were willful,
intentional, wanton, reckless and/or accomplished with a
conscious disregard of Malotts
rights entitling Malott to an award of punitive damages.
SEVENTH CAUSE OF ACTION Unreasonable Search/ Right to
Privacy
(Violation of the Cal. Constitution Art. I 1, 13: Actionable
under Cal. Civil Code 52.1/Bane Act)
(Against Defendants Sacramento County, Placer County,
Bustamante, Epperson, Hardcastle, Hendricks, and Does 1 through
10)
160. Plaintiff re-alleges and incorporates by reference
paragraphs 1 through 159 as
though fully set forth herein.
161. The actions of Defendants Bustamante, Epperson, Hardcastle,
Hendricks and
Does 1 through 10 in performing an unauthorized warrantless
search of the contents of the
diary without probable cause and without consent constituted an
illegal and unreasonable
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search that violated Malotts civil rights as guaranteed by
Article I, 1 and 13 of the
California Constitution.
162. As a direct and proximate result of said acts and/or
omissions by Defendants,
Malott suffered unreasonable interference with his personal
property, mental anguish and
physical upset.
163. Defendants violations of Malotts rights as guaranteed by
52.1 of the Civil
Code (Bane Act) entitles Malott to compensatory and punitive
damages and attorney fees,
all of which are provided for in Civil Code 52.1(b) and 52, and
are requested herein.
164. The aforementioned acts and/or omissions of Defendants
Bustamante, Epperson,
Hardcastle and Hendricks were willful, intentional, wanton,
reckless and/or accomplished
with a conscious disregard of Malotts rights, thereby entitling
Malott to an award of
punitive damages pursuant to Civil Code 52(b)(1).
165. Defendant Sacramento County is liable for the injuries
caused by Defendants
Addison and Does 1 through 10 under 815.2 of the California
Government Code.
166. Defendant Placer county is liable for the injuries caused
by Defendant Hardcastle
under 815.2 of the California Government Code.
EIGHTH CAUSE OF ACTION False Light Invasion of Privacy- Cal.
State Law
(Violation of the Cal. Constitution Art. I 1, self-executing)
(Against Defendants Sacramento County, Placer County,
Hardcastle, Hendricks, and Does 1 through 10)
167. Plaintiff re-alleges and incorporates by reference
paragraphs 1 through 166 as
though fully set forth herein.
168. Defendants Hardcastle, Hendricks and Does 1 through 10 also
knowingly,
intentionally and maliciously published to C.C. and Ferneyhough
false, erroneous or
fictionalized information purported to have been gleaned from
Malotts diary, but which was
not actually contained in the diary.
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169. The nature of the false, erroneous or fictionalized
information published by
Defendants Hardcastle and Hendricks to C.C. and Ferneyhough was
highly offensive and
placed Malott in a false and derogatory light.
170. The actions of Defendants Hardcastle and Hendricks in
publishing false,
erroneous or fictionalized information to a third party as
described herein constituted a
violation of Malotts right to privacy as guaranteed by Article
I, 1 of the California
Constitution.
171. As a proximate result of said publication by Defendants
Hardcastle and
Hendricks, Malott has suffered damages, including but not
limited to, extreme
embarrassment, humiliation, anxiety, physical upset and
emotional distress.
172. Defendant County of Sacramento is liable for the injuries
caused by Defendant
Hendricks under 815.2 of the California Government Code.
173. Defendant County of Placer is liable for the injuries
caused by Defendant
Hardcastle.
174. The aforementioned acts and/or omissions of Defendants
Hardcastle, Hendricks
and/or Does 1 through 10 were willful, intentional, wanton,
reckless and/or accomplished
with a conscious disregard of Malotts rights, thereby entitling
Malott to an award of
punitive damages pursuant to Civil Code 52(b)(1).
NINTH CAUSE OF ACTION Interference with Malotts Right of Access
to Courts
(Violation of the First and Fourteenth Amendments to the U.S.
Constitution and the Privileges and Immunities Clause of Article
IV:
Actionable under 42 U.S.C. 1983) (Against Defendants Nelson,
Royal, Fain, and Does 1 through 10)
175. Plaintiff re-alleges and incorporates by reference
paragraphs 1 through 174 as
though fully set forth herein.
176. The actions of Defendants Nelson, Royal, Fain and Does 1
through 10 as alleged
herein, interfered with the exercise and enjoyment of Malotts
civil rights as guaranteed by
the First Amendment to the U.S. Constitution. Specifically,
Defendant Royal interfered with
Malotts right of access to courts when he intentionally and
unlawfully disregarded the
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properly issued subpoena ordering his attendance at a July 8,
2013 hearing in Placer County
Case No. S-DR-0043475. Both Defendants Royal and Nelson
interfered with Malotts right
of access to courts when they conspired to return the properly
issued subpoena to Malott and
did so, falsely claiming that it was insufficiently served.
177. As a direct and proximate result of said acts and/or
omissions by said defendants,
Malott suffered unreasonable interference with his First
Amendment right to access the
courts and to sue and defend in court.
178. The aforementioned acts and/or omissions of said defendants
were willful,
intentional, wanton, reckless and/or accomplished with a
conscious disregard of Malotts
rights entitling Malott to an award of punitive damages.
TENTH CAUSE OF ACTION Denial of Equal Protection
(Violation of the Fourteenth Amendment to the U.S. Constitution:
Actionable under 42 U.S.C. 1983)
(Against Defendants Nelson and Royal)
179. Plaintiff re-alleges and incorporates by reference
paragraphs 1 through 178 as
though fully set forth herein.
180. Under 26608 of the California Government Code and 262.1 of
the California
Code of Civil Procedure, Defendant Royal has a mandatory,
non-discretionary duty to serve
all process, orders and notices regular on their face and issued
by competent authority in the
manner prescribed by law.
181. For purposes of this equal protection claim, individuals
similarly situated to
Malott are those who have likewise delivered properly issued
subpoenas to the Nevada
County Sheriffs Office for service upon Defendant Royal and who
have likewise paid the
requisite witness and service fees.
182. Upon information and belief, Defendant Royal does not
intentionally and
unlawfully disregard and fail to comply with properly issued
subpoenas delivered to the
Nevada County Sheriffs Office by individuals similarly situated
to Malott.
183. Upon information and belief, Defendants Royal and Nelson do
not unlawfully
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return properly issued subpoenas delivered to the Nevada County
Sheriffs Office to
individuals similarly situated to Malott falsely claiming that
the subpoenas were
insufficiently served.
184. There exists no rational basis for the difference in
treatment between Malott and
the similarly situated individuals identified and described
herein.
185. The actions of Defendants Nelson and Royal, as alleged
herein, interfered with
the exercise and enjoyment of Malotts equal protection rights as
guaranteed by the
Fourteenth Amendment to the U.S. Constitution.
186. The aforementioned acts and/or omissions of said defendants
were willful,
intentional, wanton, reckless and/or accomplished with a
conscious disregard of Malotts
rights entitling Malott to an award of punitive damages.
ELEVENTH CAUSE OF ACTION Procedural Due Process
(Violation of the Fourteenth Amendment to the U.S. Constitution:
Actionable under 42 U.S.C. 1983)
(Against Defendants Nelson and Royal)
187. Plaintiff re-alleges and incorporates by reference
paragraphs 1 through 186 as
though fully set forth herein.
188. Malott had a legitimate claim of entitlement under
California law to have his
properly issued subpoena served on Defendant Royal pursuant to
26608 of the California
Government Code and 262.1 of the California Code of Civil
Procedure.
189. The actions of Defendants Nelson and Royal in returning the
properly issued
subpoena to Malott unserved in the manner described herein
deprived Malott of his property
interest in having the served in accordance with California law
and constituted a violation of
his Fourteenth Amendment right to procedural due process.
TWELFTH CAUSE OF ACTION Unreasonable Search
(Violation of the Fourth Amendment to the U.S. Constitution:
Actionable under 42 U.S.C. 1983)
(Against Defendants Addison and Does 11 through 15)
190. Plaintiff re-alleges and incorporates by reference
paragraphs 1 through 189 as
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though fully set forth herein.
191. Upon information and belief, Defendants Addison and Does 11
through 15
conducted their unauthorized search of Malotts private property
to harass and/or intimidate
Malott.
192. The actions of Defendants Addison and Does 11 through 15 in
unlawfully
entering Malotts private property without a warrant, without
probable cause, without
consent and absent exigent circumstances as described herein
constituted an illegal and
unreasonable search that violated Malotts rights under the
Fourth Amendment.
193. As a direct and proximate result of said acts and/or
omissions by Defendants
Addison and Does 11 through 15, Malott suffered unreasonable
interference with his
personal liberty, property humiliation, emotional distress and
other injuries.
194. The aforementioned acts and/or omissions of said Defendants
were wilful,
intentional, wanton, reckless and/or accomplished with a
conscious disregard of Malotts
rights entitling Malott to an award of punitive damages.
THIRTEENTH CAUSE OF ACTION Unreasonable Search
(Violation of the Cal. Constitution Art. I 1, 13: Actionable
under Cal. Civil Code 52.1/Bane Act)
(Against Defendants Placer County, Addison, and Does 11 through
15)
195. Plaintiff re-alleges and incorporates by reference
paragraphs 1 through 194 as
though fully set forth herein.
196. The actions of Defendants Addison and Doe in unlawfully
entering the curtilage
of Malotts property without a warrant, without consent, and
absent exigent circumstances
as described herein constituted an illegal and unreasonable
search that violated Malotts civil
rights as guaranteed by Article I 1 and 13 of the California
Constitution.
197. As a direct and proximate result of said acts and/or
omissions by Defendants
Addison and Does 11 through 15, Malott suffered unreasonable
interference with his
personal liberty and property, physical upset, emotional
distress and mental anguish.
198. Defendants violations of Malotts rights as guaranteed by
Civil Code 52.1
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(Bane Act) entitles Malott to compensatory and punitive damages
and attorney fees, all of
which are provided for in Civil Code 52.1(b) and 52, and are
requested herein.
199. The aforementioned acts and/or omissions of Defendants
Addison and Does 11
through 15 were willful, intentional, wanton, reckless and/or
accomplished with a conscious
disregard of Malotts rights, thereby entitling Malott to an
award of punitive damages
pursuant to Civil Code 52(b)(1).
200. Defendant Placer County is liable for the injuries caused
by Defendants Addison
and Does 11 through 15 under 815.2 of the California Government
Code.
FOURTEENTH CAUSE OF ACTION Trespass- Cal. State Law
(Against Defendants Placer County, Addison, and Does 11 through
15)
201. Plaintiff re-alleges and incorporates by reference
paragraphs 1 through 200 as
though fully set forth herein.
202. Defendant Addison and Does 11 through 15 intentionally or
recklessly entered
Malotts property without permission.
203. As a direct and proximate cause of defendants entry onto
Malotts land without
permission, Malott suffered anxiety, physical upset and
emotional distress.
204. The aforementioned acts and/or omissions of Defendants
Addison and Does 11
through 15 were willful, intentional, wanton, reckless, and/or
accomplished with a conscious
disregard of Malotts rights entitling Malott to an award of
punitive damages.
205. Defendant Placer County is liable for the injuries caused
by Defendants Addison
and Does 11 through 15 under California Government Code
815.2.
FIFTEENTH CAUSE OF ACTION Unreasonable Seizure by Threat
(Violation of the Fourth Amendment to the U.S. Constitution:
Actionable under 42 U.S.C. 1983)
(Against Defendant Addison and Does 21 through 25)
206. Plaintiff re-alleges and incorporates by reference
paragraphs 1 through 205 as
though fully set forth herein.
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207. Based on Defendant Addisons August 20, 2013 threat, a
reasonable person
would have believed that he or she was not free to refuse to
meet with Defendant Addison.
208. Malott did in fact meet with Defendant Addison in front of
the Sacramento office
of the Federal Bureau of Investigation.
209. The actions of Defendant Addison and Does 21 through 25 in
threatening to have
an arrest warrant issued from Placer County for Malotts arrest
should Malott refuse to meet
with Defendant Addison to Defendant Addisons satisfaction as
described herein constituted
an unreasonable seizure that violated Malotts rights under the
Fourth Amendment.
210. As a direct and proximate result of said acts and/or
omissions by defendants,
Malott suffered unreasonable interference with his personal
liberty, humiliation, emotional
distress, physical upset and other injuries.
211. The aforementioned acts and/or omissions of said Defendants
were willful,
intentional, wanton, reckless, and/or accomplished with a
conscious disregard of Malotts
rights entitling Malott to an award of punitive damages.
SIXTEENTH CAUSE OF ACTION Unreasonable Seizure by Threats,
Intimidation or Coercion
(Violation of the Cal. Constitution Art. I 1, 13: Actionable
under Cal. Civil Code 52.1/Bane Act)
(Against Defendants Placer County, Addison, and Does 21 through
25)
212. Plaintiff re-alleges and incorporates by reference
paragraphs 1 through 211 as
though fully set forth herein.
213. The actions of Defendants Addison and Does 21 through 25 in
threatening to
have an arrest warrant issued from Placer County for Malotts
arrest should Malott refuse to
meet with Defendant Addison to Defendant Addisons satisfaction
as described herein
constituted an illegal and unreasonable search that violated and
interfered with Malotts civil
rights as guaranteed by the Fourth Amendment of the United
States Constitution and Article
I 1 and 13 of the California Constitution.
214. As a direct and proximate result of said acts by Defendants
Addison and Does 21
through 25, Malott suffered unreasonable interference with his
personal liberty, mental
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anguish and physical upset.
215. Said individual defendants violations of Malotts rights as
guaranteed by Civil
Code 52.1 (Bane Act) entitles Malott to compensatory and
punitive damages and attorney
fees as provided for in Civil Code 52.1(b) and 52 and as
requested herein.
216. The aforementioned acts and/or omissions of Defendants
Addison and Does 21
through 25 were willful, intentional, wanton, reckless and/or
accomplished with a conscious
disregard of Malotts rights, thereby entitling Malott to an
award of punitive damages under
52(b)(1).
217. Defendant Placer County is liable for the injuries caused
by Defendant Addison
under 815.2 of the California Government Code.
SEVENTEENTH CAUSE OF ACTION Conspiracy to Violate Plaintiffs
Fourth Amendment rights (Diary):
Actionable under 42 U.S.C. 1983 (Against Defendants Bustamante,
Epperson, Hardcastle,
Hendricks, and Does 1 through 10)
218. Plaintiff re-alleges and incorporates by reference
paragraphs 1 through 217 as
though fully set forth herein.
219. Defendants Bustamante, Epperson, Hardcastle, Hendricks and
Does 1 through 10
entered into a conspiracy to violate Malotts Fourth Amendment
rights by seizing,
reproducing and disseminating for unlawful purposes. Overt acts
in furtherance of the
conspiracy include, but are not limited to: (a) Said defendants
gratuitously showed copies of
the diary to friends, acquaintances and persons known to Malott,
including but not limited to
C.C., Julie and John Ferneyhough; (b) Said defendants used their
possession of the diary to
disseminate false, erroneous or fictional and injurious
information about Malott, thereby
placing him in a false light.
220. In committing the described overt acts, Defendants, and
each of them, violated
Malotts rights right to be free from unreasonable seizure of
personal property as guaranteed
by the Fourth Amendment to the United States Constitution.
221. As a proximate result, Malott has suffered the injuries
described herein and
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accordingly seeks compensation and punitive damages.
222. The aforementioned acts and/or omissions were willful,
intentional, wanton,
reckless, and/or accomplished with a conscious disregard of
Malotts rights entitling him to
an award of punitive damages.
EIGHTEENTH CAUSE OF ACTION Conspiracy to Violate Plaintiffs
Fourth Amendment rights
Actionable under 42 U.S.C. 1983 (Against Defendants Addison,
DeVogelaere, Royal, and Does 11 through 20)
223. Plaintiff re-alleges and incorporates by reference
paragraphs 1 through 222 as
though fully set forth herein.
224. Sometime in or around August of 2013, Defendants Addison,
DeVogelaere,
Royal and Does 11 through 20 entered into a conspiracy to
violate Malotts Fourth
Amendment rights by performing an unreasonable search of his
property with the purpose of
harassing or intimidating Malott. Overt acts in furtherance of
the conspiracy include, but are
not limited to: (a) On more than one occasion between August 13
and August 21, 2013,
Defendants Addison and Does 11 through 15 entered Malotts
property to conduct an
unreasonable search; and (b) Defendant DeVogelaere and Does 16
through 20 covered up
and actively concealed the illegal conduct of Defendants Addison
and Does 11 through 15
by failing to report Defendants illegal conduct.
225. In committing the described overt acts, Defendants, and
each of them, violated
Malotts right to be free from unreasonable search as guaranteed
by the Fourth Amendment
to the United States Constitution.
226. As a proximate result, Malott has suffered the injuries
described herein and
accordingly seeks compensation and punitive damages.
227. The aforementioned acts and/or omissions were willful,
intentional, wanton,
reckless, and/or accomplished with a conscious disregard of
Malotts rights entitling him to
an award of punitive damages.
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NINETEENTH CAUSE OF ACTION Conspiracy to Violate Plaintiffs
Access to Courts,
Equal Protection and Procedural Due Process rights: Actionable
under 42 U.S.C. 1983
(Against Defendants Nelson and Royal)
228. Plaintiff re-alleges and incorporates by reference
paragraphs 1 through 227 as
though fully set forth herein.
229. Sometime between July 2, 2013 and July 8, 2013, Defendants
Nelson and Royal
entered into a conspiracy to violate Malotts rights of access to
courts, equal protection,
and/or procedural due process by manufacturing a false basis
upon which to claim that
Malott had insufficiently served a subpoena on Defendant Royal.
Overt acts in furtherance
of the conspiracy include, but are not limited to: (a) Nelsons
July 16, 2013 letter; and (b)
Defendant Royals failure to personally appear and produce
documents at the July 8, 2013
hearing.
230. In committing the described overt acts, defendants, and
each of them, violated
Malotts rights of access to courts, equal protection and/or
procedural due process.
231. As a proximate result, Malott has suffered the injuries
described herein and
accordingly seeks compensation and punitive damages.
TWENTIETH CAUSE OF ACTION Ratification of Constitutional
Violations
(Actionable under 42 U.S.C. 1983) (Against Defendants Nevada
County, Placer County, Sacramento County, Bell, Bonner, Jones and
Salavar)
232. Plaintiff re-alleges and incorporates by reference
paragraphs 1 through 231 as
though fully set forth herein.
233. The acts of Defendants Addison, Bustamante, DeVogelaere,
Epperson, Fain,
Nelson and Royal as described herein deprived Malott of his
rights under the United States
Constitution.
234. The cavalier rejection of each of Malotts citizens
complaints by Nevada
County, Placer County and Sacramento County, respectively,
constituted ratification by each
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county of the individual conduct of said individual
defendants.
a. Placer County, Bell and Bonner
By delegation or otherwise, Defendant Bell and/or Defendant
Bonner had final
policymaking authority for Placer County regarding Malotts
citizens complaint. Defendant
Bell and/or Bonner knew of, specifically approved of and
ratified the acts of Defendants
Addison and Does 11 through 15 and the bases for those acts by
rejecting Malotts Placer
County citizens complaint as frivolous.
b. Sacramento County and Jones
Defendant Jones had final policymaking authority for Sacramento
County
regarding Malotts citizens complaint. Defendant Jones knew of,
specifically approved of,
and ratified the acts of Defendants Bustamante Epperson and the
bases for those acts when
he rejected Malotts Sacramento County citizens complaint without
any investigation and
without reviewing the requested medical records and proffered
photographic evidence.
c. Nevada County and Salavar
By delegation or otherwise, Defendant Salavar had final
policymaking authority,
for Nevada County regarding Malotts citizens complaint.
Defendant Salavar knew of,
specifically approved of, and ratified the acts of Defendants
DeVogelaere, Nelson, Royal,
and the bases for those acts when he rejected Malotts Nevada
County citizens complaint as
unsubstantiated.
235. The inaction of said Defendants was a direct and proximate
cause of the injuries
suffered by Malott in that said Defendants knew of, approved of,
and ratified the
constitutional violations alleged.
236. Said Defendants knew or should have known that such conduct
was unjustified
and would result in violations of Malotts constitutional
rights.
237. As a direct and proximate result of the aforementioned
practices, Malott suffered
injuries and damages as alleged herein.
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