Ma Lott Complaint
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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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