Dan Escamilla

1 304 S. Jones Blvd #3505

Las Vegas NV 89107
2 Tel: (714) 783-3016
3 Fax: (714) 783-3016
[email protected]
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Defendant in Pro Se
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7 UNITED STATES DISTRICT COURT

8 SOUTHERN DISTRICT OF CALIFORNIA

9 )
ESTATE OF TIMOTHY GENE ) No. 16-cv-2989-WQH-MSB
10 SMITH, by his successor in interest,
JANIE RICHELLE SANDERS; JANIE ))
11 RICHELLE SANDERS; SANDY ) NOTICE OF MOTION AND
LYNN SIMMONS; and WYATT )
12 ALLEN GUNNER SMITH as MOTION FOR SUMMARY
individuals, ) JUDGMENT OR,
13 )
) ALTERNATIVELY, FOR
14 Plaintiffs, ) SUMMARY ADJUDICATION OF
) INDIVIDUAL ISSUES BY
15 v. )
) DEFENDANT DAN ESCAMILLA;
16 SCOTT HOLSLAG, as individuals and )) MEMORANDUM OF POINTS AND
17 employees of CITY OF SAN DIEGO; ) AUTHORITIES IN SUPPORT
NATALIE ANN MACEY d/b/a ) THEREOF
18 MACEY BAIL BONDS, as an )
individual; LEGAL SERVICE )
19 BUREAU, INC. d/b/a GLOBAL
FUGITIVE RECOVERY, a California )) Date : September 21, 2020
20 domestic corporation; DAN Judge : Hon. William Q. Hayes
ESCAMILLA, as an individual and on )) Ctrm : 14B
21 behalf of LEGAL SERVICE BUREAU, )
INC.; LELAND CHAPMAN BAIL )
22 BOND CO. INC., a Colorado ) Discovery Cut-Off: July 29, 2020
corporation; LBC, INC., a Hawaii ) Pre-Trial Conference: Jan 8, 2021
23 corporation; KAMA AINA BAIL
BONDS, INC., a Hawaii Corporation; )) Trial Date: None Set
24 and LELAND B. CHAPMAN, as an
individual and on behalf of LELAND )) [Separate Statement Of Uncontroverted
25 CHAPMAN BAIL BOND CO. INC., ) Facts and Declaration of Dan Escamilla
26 LBC, INC., and KAMA AINA BAIL ) filed concurrently herewith.
BONDS, INC.; and DOES 1-50, )
27 inclusive, )
) NO ORAL ARGUMENT UNLESS
28 Defendants. )
) REQUESTED BY THE COURT

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 1 TO THE HONORABLE COURT, ALL PARTIES, AND TO THEIR
2 COUNSEL OF RECORD:
3 PLEASE TAKE NOTICE that on September 21, 2020 in Courtroom 14B
4 of the United States District Court, located at 333 West Broadway San Diego,
5 California, Defendant Dan Escamilla, pursuant to Federal Rule of Civil Procedure
6 56, hereby moves for an order granting summary judgment in its favor, as no
7 triable issue of material fact exists regarding Plaintiff’s purported claims against
8 Defendant. Defendant Escamilla is, therefore, entitled to judgment as a matter of
9 law.
10 Please take further notice that, if for any reason summary judgment cannot
11 be granted, Defendant will, and hereby does, further move the Court for summary
12 adjudication as to each of the following enumerated issues.
13 1. Plaintiff’s claims for Conspiracy to Violate Civil Rights (Claim Six)
14 and Violation of Civil Rights (Claim Seven) cannot survive summary judgment
15 because Plaintiff has not established that Defendant Escamilla Violated decedent’s
16 Federal Civil Rights and Acted Under Color of State Law;
17 2. Plaintiff’s claims for Conspiracy to Violate Civil Rights (Claim Six)
18 and Violation of Civil Rights (Claim Seven) cannot survive summary judgment
19 because Plaintiff has not established any joint action or meeting of the minds
20 between Defendant Escamilla and any particular state official to violate decedent’s
21 constitutional rights;
22 3. Defendant is entitled to summary adjudication of Plaintiff’s punitive
23 damage claim against Defendant Escamilla because plaintiff fails to produce
24 evidence regarding the reckless or callous nature of defendant’s action.
25 This Motion will be based upon this Notice of Motion and Motion, the
26 Memorandum of Points and Authorities, Defendants’ concurrently filed
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 1 Declarations, Defendants’ Separate Statement of Undisputed Facts, the pleadings
2 on file herein, and upon such further evidence as may be presented at or before the
3 hearing of this motion.
4 Date: August 17, 2020 Respectfully submitted,
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Dan Escamilla
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Defendant in Pro Se
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 1 CONTENTS
2 MEMORANDUM OF POINTS AND AUTHORITIES................................. 8
3
I. Introduction........................................................................................... 8
4
5 II. Pertinent Procedural Posture & Remaining Claims ............................. 8

6 III. Statement of Facts................................................................................. 9

7
IV. Summary Judgement is Proper When Plaintiff Does Not Offer
8 Sufficient Admissible Evidence To Raise A Triable Issue of
9 Material Fact. ...................................................................................... 11
10 V. Plaintiff’s Constitutional Claims Against Defendant Escamilla Are
11 Properly Dismissed by Summary Judgment Because Plaintiff Can
12 Not Establish That Defendant Escamilla Violated Plaintiff’s
Federal Civil Rights And Acted Under Color Of State Law .............. 12
13
14 VI. Plaintiff’s Conspiracy Claims Against Defendant Escamilla Are
15 Properly Dismissed by Summary Judgment Because Plaintiff Can
Not Establish Any Joint Action Between Defendant Escamilla And
16
Any State Official Which Involved An Agreement Or Meeting Of
17 The Minds To Violate Constitutional Rights ...................................... 14
18
VII. Defendant Escamilla Cannot be Deemed to Have Acted With
19 Oppression, Fraud Or Malice Because Any False Fact Concerning
20 Smith That He Relayed from Macey or Chapman To The San
21 Diego Police Department Was Relayed Based On His Good Faith
Belief That The Facts Provided To Him By Macey And Chapman
22
Were True and Accurate and that Such Facts Were Properly
23 Relayed to Preserve Officer Safety .................................................... 16
24
VIII. Plaintiff Has Offered No Evidence That By Relaying True and
25 Accurate Officer Safety Information, Defendant Escamilla Acted
26 with Oppression, Fraud or Malice, Such That no Punitive Damages
Would be Proper ................................................................................. 17
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28 IX. Conclusion. .......................................................................................... 17

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 1 TABLE OF AUTHORITIES
2 Cases Page
3 Am. Mfrs. Mut. Ins. Co. v. Sullivan,
4 526 U.S. 40 (1999) .......................................................................................... 13
5 Anderson v. Liberty Lobby, Inc.,
6 477 U.S. 242, 106 S.Ct. 2505 (1986) ............................................................... 11

7 Arnold v. International Business Machines Corp.,

637 F.2d 1350 (9th Cir. 1981) ......................................................................... 16
8
9 Baker v. McCollan,
443 U.S. 137 (1979) ........................................................................................ 12
10
Celotex Corp. v. Catrett,
11 477 U.S. 317, 106 S.Ct. 2548, (1986) .............................................................. 11
12
Collins v. Womancare,
13 878 F.2d 1145 (9th Cir. 1989) .......................................................................... 12
14 Dang v. Cross,
15 422 F.3d 800 (9th Cir. 2005) ........................................................................... 17
16 Daniel v. Ferguson,
17 839 F.2d 1124 (5th Cir. 1988) .......................................................................... 16
18 DeGrassi v. City of Glendora,
19 207 F.3d 636, 647 (9th Cir. 2000) ..................................................................... 13
20 Florer v. Congregation Pidyon Shevuyim, N.A.,
21 639 F.3d 916 (9th Cir. 2011) ............................................................................ 13
22 Fonda v. Gray,
23 707 F.2d 435 (9th Cir. 1983) ........................................................................... 14
24 Gilbert v. Feld,
25 788 F.Supp. 854 (E.D.Pa. 1992) ...................................................................... 16

26 Gilbrook v. City of Westminster,

177 F.3rd 839 (9th Cir. 1999) .......................................................................... 15
27
28 Kirtley v. Rainey,
326 F.3d 1088 (9th Cir. 2003) ......................................................................... 13

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16-cv-2989-WQH-MSB
 1 Lacey v. Maricopa County,
693 F.3d 896 (9th Cir. 2012) ........................................................................... 15
2
Lugar v. Edmondson Oil Co.,
3
457 U.S. 922 (1982) ........................................................................................ 13
4
Lujan v. Nat'l Wildlife Fed'n,
5 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) .................................. 12
6
Mendocino Envtl. Ctr. v. Mendocino Cty.,
7 192 F.3d 1283 (9th Cir. 1999) ......................................................................... 14
8 Morgan v. Woessner,
9 997 F.2d 1244 (9th Cir. 1993) ......................................................................... 17
10 Ouzts v. Maryland Nat'l Ins. Co.,
11 505 F.2d 547 (9th Cir. 1974) (en banc) ........................................................... 13

12 Price v. Hawaii,
939 F.2d 702 (9th Cir. 1991) ........................................................................... 13
13
14 Smith v. Wade,
461 U.S. 30, 103 S.Ct. 1625 (1983) ................................................................ 17
15
Sutton v. Providence St. Joseph Med. Ctr.,
16
192 F.3d 826 (9th Cir. 1999) ........................................................................... 13
17
Taylor v. List,
18 880 F.2d 1040 (9th Cir. 1989) ......................................................................... 12
19
United Steelworkers of Am. v. Phelps Dodge Corp.,
20 865 F.2d 1539 (9th Cir. 1989) ............................................................. 13, 14, 15
21 Van Ort v. Estate of Stanewich,
22 92 F.3d 831 (9th Cir. 1996) ............................................................................. 13
23 West v. Atkins,
24 487 U.S. 42 (1988) .......................................................................................... 12

25 Wyatt v. Cole,
504 U.S. 158 (1992) ........................................................................................ 12
26
27
28

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 1 Statutes
2 42 U.S.C. § 1983 ........................................................................................... passim
CA Penal Code § 1299 ........................................................................................... 9
3
CA Penal Code § 1299.08 ................................................................................... 10
4
CA Civil Code section 3294 ................................................................................. 17
5
6
Rules
7 Federal Rule of Civil Procedure 56 ........................................................... 2, 11, 12
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 1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. Introduction.
3 Defendant is entitled to summary judgment on multiple grounds.
4 First, Plaintiff has not established that Defendant Escamilla, through any of
5 his alleged actions, violated constitutional rights and acted under color of state law
6 with respect to the conspiracy to violate civil rights claim (Claim Six) or with
7 respect to the violation of civil rights claim (Claim Seven).
8 Second, Plaintiff has not established that Defendant Escamilla engaged in
9 any joint action or meeting of the minds with any particular state official to violate
10 decedent’s constitutional rights.
11 Finally, Defendant is entitled to summary adjudication of Plaintiff’s punitive
12 damage claims because the undisputed admissible evidence shows that Defendant’s
13 actions were not of a reckless or callous nature, but in an effort to preserve officer
14 safety by relaying true and accurate information, in good faith, bearing on risks that
15 were believed to exist with regard to any encounter of decedent by the police.
16 For the reasons below, Defendant respectfully requests that this Court grant
17 summary judgment in favor of Defendant and enter judgment accordingly against
18 Plaintiff.
19 II. Pertinent Procedural Posture & Remaining Claims.
20 On March 1, 2019, Plaintiff filed its third Amended Complaint (“TAC”)
21 which alleges two (2) causes of action against Defendant Escamilla (labeled X.)
22 entitled “Sixth Cause of Action – Conspiracy to Violate Civil Rights 42 USC
23 1983” and a subsequent claim (labeled XI.) entitled “Violation of 42 U.S.C. §
24 1983.
25 In support of these related claims, the TAC asserts that Defendant
26 Escamilla, with others, violated Plaintiff’s “Fourth and Fourteenth Amendment
27 rights” specifically “by fabricating and falsifying information about Timothy
28 Smith, and publishing and disseminating said information to law enforcement

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 1 agencies...” knowing that the police would act on this information and violate
2 Plaintiff’s “right to be free from wrongful detention...and excessive force.” (TAC
3 ¶ 105).
4 The TAC also asserts that Defendant Escamilla, inter alia, conspired to
5 violate [Plaintiff’s] Fourth Amendment rights...[b]y providing false
6 information...intended for the police to rely on...” (TAC ¶ 107).
7 Plaintiff also alleges that Defendants “agreed with each other to coordinate
8 with, to act jointly with, and to obtain the participation of S.D.P.D. in a joint
9 operation with themselves to locate and seize decedent and Jamie Sanders [using]
10 “false information regarding possession of dangerous firearms, and non-existent
11 convictions for crimes of violence to S.D.P.D. [and] Defendant Escamilla falsely
12 reported that decedent and Janie Sanders were ‘armed and dangerous.’ (TAC ¶
13 108).
14 III. Statement of Facts.
15 Defendant Dan Escamilla (“Escamilla”) is a professional Bail Fugitive
16 Recovery Agent credentialed to arrest bail fugitives under CA Penal Code § 1299
17 et seq.
18 After Janie Sanders (“Sanders”) was arrested in Missouri, the Missouri Bail
19 Agent, Natalie Macey (“Macey”), posted a bail bond for Sanders’ release. When
20 Sanders subsequently failed to appear in court, Macey became legally obligated to
21 return Sanders to custody. Macey first hired the Bail Fugitive Recovery Agent
22 Leland Chapman (“Chapman”) to perform fugitive recovery services in Missouri
23 and Texas. Chapman was named but later dismissed as a defendant in this action.
24 When Chapman’s investigation revealed that Sanders had fled to California
25 with her boyfriend, decedent Timothy Smith (“Smith”), Escamilla was hired by
26 Macey to continue the investigation and fugitive apprehension efforts.
27 On November 2, 2015 Macey provided Escamilla with written
28 authorization to perform fugitive recovery services as to Sanders. Escamilla was

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 1 advised by both Macey and Chapman that Sanders was known to have traveled to
2 San Diego with her boyfriend, Smith. Macey and Chapman also informed
3 Escamilla that they had developed information from a confidential informant that
4 Smith left Missouri by train, armed with an AK-47 and .38 caliber revolver and
5 that Smith was also a fugitive and convicted felon with a long history of violent
6 crimes. In addition, Escamilla was advised that Smith was dangerous and had
7 nearly run down another fugitive recovery agent while driving the wrong way
8 down a one-way street, in an attempt to escape. Further, Escamilla was advised by
9 Macey and Chapman that Sanders and Smith were thought to be on a crime spree
10 and had recently been involved in an incident where Smith had discharged a
11 firearm in a Texas hotel room and then fled the jurisdiction. Escamilla was
12 provided a wanted poster which had been previously published by Macey.
13 Escamilla traveled to Pacific Beach based on information provided to him
14 by Macey and Chapman. To comply with California law (CA Penal Code §
15 1299.08), upon his arrival, Escamilla notified the San Diego Police Department
16 that he and others were conducting a fugitive recovery investigation in the Pacific
17 Beach area.
18 As part of a standard operating procedure, when the geographic area of the
19 fugitives had been narrowed down to the Pacific Beach area of San Diego, wanted
20 posters were prepared for local law enforcement officers although the Sargent who
21 briefed the officers on the morning of November 4, 2015 claimed that only a
22 photo was provided, and does not recall receiving a wanted poster.
23 In any event, a true and correct copy of the wanted poster prepared by
24 Defendant Escamilla is attached as Exhibit A to Plaintiff’s TAC.
25 The only communication which Escamilla had with police officers was
26 notifying them that he would be in the area investigating this case as required by
27 law, and then, during a brief meeting, providing a photo obtained from Macey.
28 ///

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 1 According to news reports, on the next day, November 4, 2015 San Diego
2 police officers in Pacific Beach encountered Smith and a foot chase ensued. After
3 initially evading the officers, Smith was located hiding in a shed and refused
4 commands to come out. He ran from the shed and continued running from police.
5 A police dog was deployed which Smith kicked off, leaving his shoe behind while
6 climbing on top of a small structure. Smith thereafter refused repeated police
7 commands to put his hands up and reached both hands into his pockets, at which
8 time Defendant police Sgt. Scott Holslag shot Smith who expired from his injuries
9 shortly thereafter. Escamilla played no role in the shooting or in any of these
10 police operations.
11 IV. Summary Judgement is Proper When Plaintiff Does Not Offer
12 Sufficient Admissible Evidence to Raise a Triable Issue of Material
13 Fact.
14 Summary judgment is proper where “the pleadings, depositions, answers to
15 interrogatories, and admissions on file, together with the affidavits, if any, show that
16 there is no genuine issue as to any material fact and that the moving party is entitled
17 to a judgment as a matter of law.” Fed.R.Civ.P. Rule 56(c).
18 The moving party has the initial burden of identifying relevant portions of
19 the record that demonstrate the absence of a fact or facts necessary for one or more
20 essential elements of each cause of action upon which the moving party seeks
21 judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553,
22 91 L.Ed.2d 265 (1986) When addressing a motion for summary judgment, this
23 Court must decide whether there exist “any genuine factual issues that properly can
24 be resolved only by a finder of fact because they may reasonably be resolved in
25 favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct.
26 2505 (1986). However, summary judgment cannot be avoided by relying solely on
27 "conclusory allegations [in] an affidavit." Lujan v. Nat'l Wildlife Fed'n, 497 U.S.
28 871, 888, 110 S.Ct. 3177, 3188, 111 L.Ed.2d 695 (1990).

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 1 If summary judgment is not granted on the entire action, a court may render
2 partial summary judgment on individual issues as to which there remains no
3 genuine issue of material fact. Fed.R.Civ.P. Rules 56(b) & (d).
4 V. Plaintiff’s Constitutional Claims Against Defendant Escamilla Are
5 Properly Dismissed by Summary Judgment Because Plaintiff Can
6 Not Establish Any Genuine Issue of Material Fact to Support its
7 Claim that Defendant Escamilla Violated Decedent’s Federal Civil
8 Rights And Acted Under Color Of State Law
9 Defendant has alleged a 42 U.S.C. Section 1983 claim against Defendant
10 Escamilla, but can not establish that Escamilla violated decedent’s civil rights or
11 that Escamilla acted under color of state law.
12 Section 1983 provides a cause of action against "every person who, under
13 color of any statute . . . of any State . . . subjects, or causes to be subjected, any
14 citizen . . . to the deprivation of any rights, privileges, or immunities secured by
15 the Constitution and laws . . . ." Wyatt v. Cole, 504 U.S. 158, 161 (1992)
16 (alterations in original) (quoting 42 U.S.C. § 1983). To state a § 1983 claim, a
17 plaintiff must satisfactorily allege that the defendant violated the plaintiff's federal
18 civil rights and "acted under color of state law." Collins v. Womancare, 878 F.2d
19 1145, 1147 (9th Cir. 1989). See also West v. Atkins, 487 U.S. 42, 48 (1988). Taylor
20 v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). The statute "is not itself a source of
21 substantive rights, but a method for vindicating federal rights elsewhere conferred
22 ..." Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979).
23 Here, the TAC does not allege defendant Dan Escamilla was anything other
24 than a private party engaging in private conduct when he relayed information to
25 the San Diego police officers. (SUF No. 2.) "[T]he under-color-of-state-law
26 element of § 1983 excludes from its reach 'merely private conduct, no matter how
27 discriminatory or wrongful ...'" Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40,
28 50 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1002 (1982)); see also Ouzts v.

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 1 Maryland Nat'l Ins. Co., 505 F.2d 547, 550 (9th Cir. 1974) (en banc) (purely
2 private conduct, no matter how wrongful, is not covered under § 1983). There is
3 no right to be free from the infliction of constitutional deprivations by private
4 individuals. Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996); see
5 also Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991) (as amended)
6 ("[P]rivate parties are not generally acting under color of state law, and we have
7 stated that '[c]onclusionary allegations, unsupported by facts, [will be] rejected as
8 insufficient to state a claim under the Civil Rights Act.'" (citation omitted);
9 DeGrassi v. City of Glendora, 207 F.3d 636, 647 (9th Cir. 2000) (a "bare
10 allegation" that a private person acted jointly with state officials is insufficient to
11 state a claim under §1983).)
12 Private conduct is not generally considered governmental action unless
13 "something more" is present. See Sutton v. Providence St. Joseph Med. Ctr., 192
14 F.3d 826, 835 (9th Cir. 1999). In assessing whether conduct by private actors
15 becomes state action, courts "start with the presumption that conduct by private
16 actors is not state action." Florer v. Congregation Pidyon Shevuyim, N.A., 639
17 F.3d 916, 922 (9th Cir. 2011). Courts have applied certain tests to identify whether
18 there is "something more," including the public function test, the joint action test,
19 the governmental compulsion test, and the governmental nexus test. See Lugar v.
20 Edmondson Oil Co., 457 U.S. 922, 939 (1982); see also Kirtley v. Rainey, 326
21 F.3d 1088, 1092 (9th Cir. 2003). "Private parties act under color of state law if
22 they willfully participate in joint action with state officials to deprive others of
23 constitutional rights." United Steelworkers of Am. v. Phelps Dodge Corp., 865
24 F.2d 1539, 1540 (9th Cir. 1989). A private individual, such as an attorney, may be
25 considered to be acting under color of state law only if a private party
26 intentionally engages in joint action with a state official to deprive someone of a
27 constitutional right. See United Steelworkers of Am. v. Phelps Dodge Corp., 865
28 F.2d 1539, 1540 (9th Cir. 1989) (en banc) ("Private parties act under color of state

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 1 law if they willfully participate in joint action with state officials to deprive others
2 of constitutional rights.").
3 The evidence simply cannot establish that Escamilla somehow violated
4 decedent’s civil rights by relaying a warning to police officers that the decedent
5 could be “armed and dangerous” or that Escamilla somehow acted under color of
6 state law when he provided this information to the police.
7 VI. Plaintiff’s Conspiracy Claims Against Defendant Escamilla Are
8 Properly Dismissed by Summary Judgment Because Plaintiff Can
9 Not Establish Any Genuine Issue of Material Fact to Support its
10 Claim of Joint Action Between Defendant Escamilla And Any State
11 Official Which Involved An Agreement Or Meeting off the Minds To
12 Violate Constitutional Rights
13 Plaintiff also cannot show that there is any genuine issue of material fact
14 which this Court must decide as to the conspiracy claim (Claim six). There is a
15 paucity of evidence to show joint action between Escamilla and some particular
16 state official and certainly no evidence that Escamilla reached an agreement or
17 meeting of the minds with some state actor to violate the decedent’s constitutional
18 rights.
19 Joint action is required to prove a conspiracy. To prove a conspiracy
20 between the government and private parties under Section 1983, the plaintiff must
21 show "an agreement or 'meeting of the minds' to violate constitutional rights."
22 Fonda v. Gray, 707 F.2d 435, 438 (9th Cir. 1983). "The defendants must have, 'by
23 some concerted action, intend[ed] to accomplish some unlawful objective for the
24 purpose of harming another which results in damage.'" Mendocino Envtl. Ctr. v.
25 Mendocino Cty., 192 F.3d 1283, 1301 (9th Cir. 1999) (alteration in original)
26 (citation omitted). Each member of the conspiracy does not need to know the
27 exact details of the plan, but each must at least share the common objective of the
28 conspiracy. United Steelworkers of Am., 865 F.2d at 1540-41.

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 1 The Ninth Circuit in Lacey v. Maricopa County, 693 F.3d 896, 934 (9th Cir.
2 2012), provided an instructive discussion on civil conspiracy claims:
3 As we explained in Gilbrook v. City of Westminster [177 F.3rd 839 (9th
4 Cir. 1999)]:

5 "A civil conspiracy is a combination of two or more persons who, by

some concerted action, intend to accomplish some unlawful objective
6 for the purpose of harming another which results in damage." To prove
7 a civil conspiracy, the plaintiff must show that the conspiring parties
"reached a unity of purpose or a common design and understanding, or
8 a meeting of the minds in an unlawful arrangement." "To be liable,
9 each participant in the conspiracy need not know the exact details of
the plan, but each participant must at least share the common objective
10
of the conspiracy."
11
12 Nowhere in Plaintiff’s TAC do they name a particular state actor with
13 whom Defendant Escamilla conspired to deprive Smith of his Constitutional
14 rights. No evidence has been developed which would prove that Defendant
15 Escamilla conspired with a particular state actor.
16 Boiling it down to its essential storyline, Plaintiff’s TAC alleges that the
17 Defendant bondsman and fugitive recovery agents, including Escamilla, fabricated
18 information about Smith and knowingly provided this false information to the
19 state actors resulting somehow in a conspiracy to deprive Smith of his
20 Constitutional rights when he was shot and killed by San Diego Police Sergeant
21 Scott Holslag, (“Holslag”). This narrative by Plaintiff is entirely fictional and not
22 supported by even a scintilla of evidence.
23 It makes no difference whether the information which Defendant Escamilla
24 provided to police was true or false insofar as Plaintiff’s 42 U.S.C. § 1983 is
25 concerned. Plaintiff has not shown that Defendant Escamilla acted under color of
26 law and merely providing false information to the police does not transform a
27 private individual into a state actor. See Daniel v. Ferguson, 839 F.2d 1124, 1130
28 (5th Cir. 1988) ("Police reliance in making an arrest on information given by a

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 1 private party does not make the private party a state actor."); Gilbert v. Feld, 788
2 F.Supp. 854, 859-60 (E.D.Pa. 1992) (providing district attorney's office with false
3 and misleading information in order to instigate criminal charges against arrestee
4 does not expose private parties to Section 1983 liability); Arnold v. International
5 Business Machines Corp., 637 F.2d 1350, 1357-58 (9th Cir. 1981) (person who
6 merely supplies inaccurate information that leads to arrest is not involved in joint
7 activity with state and thus not liable under Section 1983).
8 VII. There is No Genuine Issue of Material Fact to Support relating to
9 Whether Escamilla Acted With Oppression, Fraud Or Malice When
10 He Relayed Officer Safety Information to the S.D.P.D. Concerning a
11 Potential Risk Posed by Smith from Macey or Chapman Because He
12 Had a Good Faith Belief That The Facts Provided To Him By Macey
13 And Chapman Were True and Accurate
14 Plaintiff’s theory of liability against Defendant Escamilla rests on the
15 alleged fabrication of information that Smith was “armed and dangerous” and that
16 this information was acted upon by Officer Holslag when he shot Smith. More to
17 the point, the only material fact which could be construed as being relevant to an
18 officer’s state of mind in a shoot/no-shoot scenario – that is evidence of a person
19 potentially being armed.
20 Plaintiff has failed to offer any evidence that Defendant Escamilla himself
21 fabricated any information about Smith being armed. As shown by Macey’s
22 wanted poster (dated September 19, 2015), which preceded Escamilla’s wanted
23 poster (the distribution of which has not been established), Smith is
24 “CONSIDERED ARMED AND EXTREMELY DANGEROUS.” When Escamilla
25 re-published this information, he actually toned down the inflammatory (albeit
26 accurate) language by removing the word “extremely” in the wanted poster which
27 he prepared.
28 ///

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 1 There is no evidence that any inflammatory language was communicated by
2 Escamilla to any police officer. A fortiori, there is no evidence that any false
3 information was communicated by Escamilla to any police officer.
4 VIII. Plaintiff Has Offered No Evidence That By Relaying True and
5 Accurate Officer Safety Information, Defendant Escamilla Acted
6 with Oppression, Fraud or Malice, Such That no Punitive Damages
7 Would be Proper.
8 In section 1983 cases, punitive damages are recoverable "when the
9 defendant's conduct is shown to be motivated by evil motive or intent, or when it
10 involves reckless or callous indifference to the federally protected rights of
11 others." Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625 (1983); see Morgan v.
12 Woessner, 997 F.2d 1244, 1255 (9th Cir. 1993). Section 1983 punitive damages can
13 also be awarded to address "malicious, wanton, or oppressive acts or
14 omissions." Dang v. Cross, 422 F.3d 800, 807 (9th Cir. 2005). Conduct is
15 oppressive "if done in a manner which injures or damages or otherwise violates
16 the rights of another person with unnecessary harshness or severity as by misuse
17 or abuse of authority or power or by taking advantage of some weakness or
18 disability or the misfortunes of another person." Dang, 422 F.3d at 809. California
19 Civil Code section 3294(a) authorizes punitive damages "where it is proven by
20 clear and convincing evidence that the defendant has been guilty of oppression,
21 fraud, or malice."
22 IX. Conclusion.
23 For the reasons above, Defendant respectfully requests that the Court grant
24 this Motion.
25 Date: August 17, 2020 Respectfully submitted,
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27 Dan Escamilla
28 Defendant in Pro Se

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 1 ECF CERTIFICATE OF SERVICE
2 The undersigned herby certifies that a true and correct copy of the
3 foregoing NOTICE OF MOTION AND MOTION FOR SUMMARY
4 JUDGMENT OR, ALTERNATIVELY, FOR SUMMARY ADJUDICATION
5 OF INDIVIDUAL ISSUES BY DEFENDANT DAN ESCAMILLA;
6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
7 THEREOF has been served on this date to all current and/or opposing counsel of
8 record, if any to date, who are deemed to have consented to electronic service via
9 the Court’s CM/ECF system per CivLR 5.4(d). Any other counsel of record will
10 be served by electronic mail, facsimile, regular mail, email personal delivery
11 and/or overnight delivery upon their appearance in this matter and/or as directed
12 by the Court.
13 I declare under penalty of perjury under the laws of the United States that
14 the foregoing is true and correct. Executed this 17th day of August at Placentia,
15 California.
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17 Dan Escamilla
18 Defendant in Pro Se
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16-cv-2989-WQH-MSB