Judge: Deirdre Hill, Case: 22TRCV00213, Date: 2023-02-15 Tentative Ruling

Case Number: 22TRCV00213    Hearing Date: February 15, 2023    Dept: M

Hearing Date:                         February 15, 2023

Moving Parties:                      Plaintiff Mike Harsini

Responding Party:                  Defendant Marcello Curko

Motion for Summary Judgment

            The court considered the moving, opposition, and reply papers.

RULING

            The motion is DENIED.

BACKGROUND

On March 22, 2022, plaintiff Mike Harsini (self-represented) filed a complaint against Deputy Sheriff Marcello Curko for slander/libel and IIED.  Plaintiff alleges that on November 9, 2021, defendant rudely called plaintiff and said that “there is an outstanding warrant for your arrest which he has filed it with Torrance District Attorney’s Office on behalf of attorney Marsh for eavesdropping and illegal tape recording conversation.”  Plaintiff asked defendant what actual tape recording evidence he had.  On November 15, 2021, plaintiff attended a criminal court hearing and the judge dismissed Deputy Sheriff Curko’s “bogus charges against me due to the lack of any actual evidence.”  Plaintiff filed a civil case against attorney Marsh for libel/slander for falsely filing a criminal case against plaintiff.  On March 21, 2022, Judge Mackey in Dept. 55 granted defendant Marsh’s anti-SLAPP motion and awarded her attorney’s fees against plaintiff.

On August 19, 2022, the court denied plaintiff’s anti-SLAPP motion.

On August 22, 2022, plaintiff filed a motion for summary judgment.

On September 22, 2022, the court denied the motion for summary judgment without prejudice.

On September 22, 2022, plaintiff filed the herein motion for summary judgment.

LEGAL AUTHORITY

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843.  “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519.  “A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.  Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant or cross-defendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.”  CCP § 437c(p)(1).

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.”  Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4^th 463, 467; CCP §437c(c).

DISCUSSION

            Plaintiff Mike Harsini (self-represented) requests summary judgment in his favor and against defendant Deputy Curko.

            In the motion, he asserts that he is alleging “malicious misconduct”/malicious prosecution.  In the reply, he refers to “Curko’s negligent case of a misdemeanor.”  The court notes that plaintiff did not bring a cause of action for malicious prosecution.  He contends that Deputy Curko called plaintiff in October 2021 and “he rudely mentioned over the phone that he intends to put” plaintiff “behind bars for emailing a letter of tape-recording conversation” to the “mendacious attorney Marsh.”  He asserts that Curko “belligerently denied” plaintiff’s statement and “he began proceeding with his bogus & malicious, false, and fabricated prosecution technics [sic] against” plaintiff with the Torrance District Attorney’s Office.  He contends that he attended the criminal court hearing on November 12, 2021 in Dept. 3 at Torrance courthouse.  Judge Rene Gilbertson dismissed the case “based on hearsay and the lack of any actual tape-recording conversation evidence.”

            In support of his motion, he presents the “minute order” dated November 12, 2021 from the arraignment and plea.  It states that the case was dismissed pursuant to Penal Code §1385 and that the court grants the People’s motion to dismiss the case.  He also presents the text of the statute 42 USC §1983.  The court notes that plaintiff did not bring a cause of action under this section.  He also presents the letter dated February 14, 2022 from him to the Lomita Sheriff stating that he “expressed my great disappointment with the way this inexperienced rookie detective Marcello Curko who has caused me tremendous shock and mental anguish by filing a bogus warrant for my arrest with Torrance District Attorney’s office for eavesdropping based on crooked attorney Virginia Marsh hearsay and with no evidence” and that he was going to file a lawsuit for “defamation of character.”

            In opposition, defendant argues that plaintiff has failed to meet his burden.  He has not provided any law or undisputed facts that supports his motion; rather, the motion is merely a reiteration of his conclusory allegations contained in the complaint and the procedural history of the case.  Defendant points out that plaintiff does not address any of the causes of action that he is asserting against defendant, which although vague and confusing, appear to be for slander/libel and IIED.  Defendant further contends that plaintiff’s “separate statement” is deficient as it fails to identify each supporting material fact claimed to be without dispute.

            Defendant also argues that plaintiff has failed to comply with the mandatory provisions of the Tort Claims Act.  Defendant further argues that he is entitled to immunity for a discretionary act under Gov. Code §820.2 because defendant has the discretion to conduct a criminal investigation and present his investigation to the District Attorney’s office.  He also argues that he is immune under Gov. Code §820.4 because he was “simply doing his job in taking the victim’s statement and then presenting the case to the DA’s office” and that the “deputy does not have authority to file ‘bogus charges’ against” plaintiff and that he cannot be liable for executing or enforcing the law.  See Gov. Code §26500, “The district attorney is the public prosecutor, except as otherwise provided by law.  The public prosecutor shall attend the courts, and within his or her discretion shall initiate and conduct on behalf of the people all prosecutions for public offenses.”  Also, he argues, he is immune under Gov. Code §821.6 because his is immune from liability for any injury caused by his institution any judicial proceeding within the scope of his employment.

            The court rules as follows:  The court finds that plaintiff has failed to meet his burden of showing that there is no defense to a cause of action as he has not proved “each element of the cause of action entitling the party to judgment on the cause of action.”  Plaintiff fails to address the purported causes of action in the complaint—defamation/slander and IIED.  The motion is devoid of any statutory or case law as to these causes of action.  He refers to “malicious prosecution” and 42 USC §1983 in the motion but does not address that section in the memorandum of points and authorities and it was not pled in the complaint.

Further, the “separate statement” does not comply with CRC Rule 3.1350(d)(1) and (d)(3) as it does not separately identify each cause of action that is the subject of the motion and each supporting material fact claimed to be without dispute with respect to the cause of action.  Also, the separate statement “must be in the two-column format.”  “The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denying the motion.”  CCP §437c(b)(1).  Plaintiff also failed to comply with §437c(b)(1), which states that “[t]he motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.”). 

Also, as noted by defendant, plaintiff has not shown that he complied with the Tort Claims Act.  Under the Government Claims Act, the general rule is that any party with a claim for money or damages against a public entity must first file claim directly with that entity; only if that claim is denied or rejected may the claimant file a lawsuit.  Gov. Code §§ 905, 945.4.  Gov. Code §911.2 requires that a claim for damages be filed “not later than six months after the accrual of the cause of action.” 

            Moreover, although the burden did not shift, defendant raises a triable issue of material fact as to his affirmative defenses that Deputy Curko is entitled to immunity under Gov. Code §§820.2, 820.4, and 821.6.  Under Gov. Code §820.2, “[e]xcept otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.”  Under Gov. Code §820.4, “[a] public employee is not liable for his act or omission, exercising due care, in the execution or enforcement of any law. . . .”   Under Gov. Code §821.6, “[a] public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.”  Plaintiff’s allegations fall under these immunities.  As stated above, plaintiff alleges that “Rookie Sheriff Deputy Detective” called plaintiff and said that “there is an outstanding warrant for your arrest which he has filed it with Torrance District Attorney’s Office on behalf of attorney Marsh for eavesdropping and illegal tape-recording conversation” and refers to “Sheriff Deputy Curko’s bogus charges against me due to the lack of any actual evidence of any Tape-recording conversation.” Even if these allegations are true, he was acting within his discretion to investigate and provide information to the District Attorney’s office.

Accordingly, the motion for summary judgment is DENIED.

Defendant is ordered to give notice of the ruling.