Fenters v. Chevron (761 F. Supp. 2d 957, 2010)

MEMORANDUM DECISION GRANTING IN PART AND DENYING IN PART DEFENDANTS YOSEMITE CHEVRON, ABBCO INVESTMENTS, LLC, AND ROBERT AB-BATE’S MOTION FOR SUMMARY JUDGMENT (Doc. 137)

OLIVER W. WANGER, District Judge.

Before the Court is the motion for summary judgment filed by Defendants Yosemite Chevron, Abbco Investments, LLC, and Robert Abbate (hereafter the “Abbate Defendants”).

A. ABBATE DEFENDANTS’ OBJECTIONS TO BETTANCOURT EXPERT REPORT.

Submitted in opposition to the Ab-bate Defendants’ motion for summary judgment is what is characterized by Mr. Little as “the declaration report” of John Bettancourt. Mr. Bettancourt avers:

1. I am a certified public accountant. My current curriculum vitae has been provided separately.

2. I have been retained on behalf of plaintiff Tiffany Fenters in this proceeding.

3. My opinions regarding the accounting aspects of this case are set forth in my testimony in the criminal case, People v. Tiffany Fenters, which I incorporate herein by reference. Those opinions remain unchanged. I based those opinions on a review of the accounting materials provided and made available by the prosecution in the underlying criminal case. I reviewed those materials at length, and I understand that my related work product has also been produced by plaintiffs counsel.

4. The spreadsheets provided by defendant Robert Abbate is indicative of false, fabricated and misleading work product for the reasons previously stated in my trial testimony and as reflected in my work product. The accounting work done by defendants Cassabon & Associates and Victor Fung is also indicative of false, fabricated and/or misleading work product for the reasons largely expressed in my trial testimony and reflected in my work product. The defendants’ accounting work is not merely substandard or negligent but instead is reflective of false, fabricated and/or misleading work.

The Abbate Defendants object to Mr. Bettancourt’s declaration on several grounds.

Defendants object to consideration of Mr. Bettancourt’s declaration because it fails to set forth Mr. Bettancourt’s qualifications.

Rule 702, Federal Rules of Evidence, provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise.

“Whether a witness is qualified as an expert can only be determined by comparing the area in which the witness has superior knowledge, skill, experience, or education with the subject matter of the witness’s testimony.” Carroll v. Otis Elevator Co., 896 F.2d 210, 212 (7th Cir.1990).

Defendants complain that Mr. Bettancourt’s declaration does not set forth his qualifications, other than to aver that he is a certified public accountant.

Plaintiff responds that “the totality of the materials submitted to the Court, which include Bettancourt’s trial testimony in the underlying criminal case and his deposition, more than amply set forth his qualifications as an experienced forensic accountant and certified fraud examiner, as well as the materials he reviewed in support of his opinion in this case,” citing Bettancourt’s trial testimony at p. 516-531 and his deposition testimony at p. 1-23. Plaintiff cites Miller v. Corrections Corp. of America, 375 F.Supp.2d 889, 896 (D.Alaska 2005), in contending that “an expert report may, as do plaintiffs expert’s reports, include or make reference to attachments reflecting the expert’s opinions.”

Defendants’ objections to Mr. Bettancourt’s declaration on the ground that he is unqualified to render the opinion is baseless. Defendants do not point to any specific evidence that Mr. Bettancourt is not qualified to give his expert opinion as to the accounting methods utilized by Defendants.

Defendants object that Mr. Bettancourt provides no foundation for his opinion in that he does not set forth any of the data he reviewed or any investigation that he undertook in reaching his conclusions; that it does not set forth his methodology; and that his testimony is speculative and conjectural.

However, as Plaintiff notes, Mr. Bettancourt’s methodology and foundation is set forth in his trial testimony in the underlying criminal action. While certain of Mr. Bettancourt’s conclusions are conjectural and speculative, these are matters going to the weight of his opinion, not its admissibility.

B. GOVERNING STANDARDS.

Summary judgment is proper when it is shown that there exists “no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56. A fact is “material” if it is relevant to an element of a claim or a defense, the existence of which may affect the outcome of the suit. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987). Materiality is determined by the substantive law governing a claim or a defense. Id. The evidence and all inferences drawn from it must be construed in the light most favorable to the nonmoving party. Id.

The initial burden in a motion for summary judgment is on the moving party. The moving party satisfies this initial burden by identifying the parts of the materials on file it believes demonstrate an “absence of evidence to support the non-moving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the nonmoving party to defeat summary judgment. T.W. Elec., 809 F.2d at 630. The nonmoving party “may not rely on the mere allegations in the pleadings in order to preclude summary judgment,” but must set forth by affidavit or other appropriate evidence “specific facts showing there is a genuine issue for trial.” Id. The nonmoving party may not simply state that it will discredit the moving party’s evidence at trial; it must produce at least some “significant probative evidence tending to support the complaint.” Id. The question to be resolved is not whether the “evidence unmistakably favors one side or the other, but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.” United States ex rel. Anderson v. N. Telecom, Inc., 52 F.3d 810, 815 (9th Cir.1995). This requires more than the “mere existence of a scintilla of evidence in support of the plaintiffs position”; there must be “evidence on which the jury could reasonably find for the plaintiff.” Id. “The more implausible the claim or defense asserted by the nonmoving party, the more persuasive its evidence must be to avoid summary judgment.” Id. As explained in Nissan Fire & Marine Ins. Co. v. Fritz Companies, 210 F.3d 1099 (9th Cir.2000):

The vocabulary used for discussing summary judgments is somewhat abstract. Because either a plaintiff or a defendant can move for summary judgment, we customarily refer to the moving and nonmoving party rather than to plaintiff and defendant. Further, because either plaintiff or defendant can have the ultimate burden of persuasion at trial, we refer to the party with and without the ultimate burden of persuasion at trial rather than to plaintiff and defendant. Finally, we distinguish among the initial burden of production and two kinds of ultimate burdens of persuasion: The initial burden of production refers to the burden of producing evidence, or showing the absence of evidence, on the motion for summary judgment; the ultimate burden of persuasion can refer either to the burden of persuasion on the motion or to the burden of persuasion at trial.

A moving party without the ultimate burden of persuasion at trial — usually, but not always, a defendant — has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment ... In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party’s claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial ... In order to carry its ultimate burden of persuasion on the motion, the moving party must persuade the court that there is no genuine issue of material fact ....

If a moving party fails to carry its initial burden of production, the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial ... In such a case, the nonmoving party may defeat the motion for summary judgment without producing anything ... If, however, a moving party carries its burden of production, the nonmoving party must produce evidence to support its claim or defense ... If the nonmoving party fails to produce enough evidence to create a genuine issue of material fact, the moving party wins the motion for summary judgment ... But if the nonmoving party produces enough evidence to create a genuine issue of material fact, the nonmoving party defeats the motion.

210 F.3d at 1102-1103.

C. ABBATE DEFENDANTS’ SEPARATE STATEMENT OF UNDISPUTED FACTS.

1. Issue No. 1: Plaintiff Cannot Maintain a Claim for Violation of Section 1983 Because She Cannot Meet the Requisite Elements.

DUF 1: Tiffany Fenters (“Fenters” or “Plaintiff’) worked for defendant Yosemite Chevron between June 2002 to March 2003.

Plaintiff’s Response: UNDISPUTED.

DUF 2: Alejandro Aceves (“Aceves”) also worked for Yosemite Chevron between April 2002 to March 2003.

Plaintiff’s Response: UNDISPUTED.

DUF 3: Defendant Robert Abbate (“Ab-bate”) has managed and operated Yosemite Chevron from 1999 to the present.

Plaintiff's Response: UNDISPUTED.

DUF 4. On March 27, 2003, Fenters quit her employment with Yosemite Chevron and submitted her written resignation on March 28, 2003.

Plaintiff's Response: UNDISPUTED.

DUF 5: On March 31, 2003, Abbate caught Aceves stealing from Yosemite Chevron by falsely voiding actual transactions and then stealing the overage in cash from the register at the end of his shift.

Plaintiff's Response: UNDISPUTED.

DUF 6: On March 31, 2003, Aceves confessed to Abbate that he was stealing by falsely voiding actual transactions and then taking the overage from the register.

Plaintiff's Response: UNDISPUTED.

DUF 7: On March 31, 2003, Aceves also told Abbate that Fenters taught him how to steal through the voiding transaction scheme. Supporting Evidence: Exh. F, Aceves Depo. 98:918, 99:9-102:3, 103:3-22, 105:2-12, 106:20-108:21, 110:2-112::23, 129:13-23, 176:5-22, 194:4-196:2; Exh. B, Aceves trial testimony 267:3-12.

Plaintiff’s Response: Disputed. During his trial testimony, Aceves testified that he learned how to do illegal voids himself, in order to obtain extra money. See Trial Transcript, pp. 266-267, 276, 285, 287. Aceves never told Abbate he had seen Fenters do any illegal voids or steal any money from the store. Trial Transcript, pp. 275. In connection with his firing of Aceves, Abbate first brought up Fenters’ name, saying that “he knew Tiffany was in it.” Trial Transcript, p. 291. Aceves thereafter only implicated Fenters and other employees in an attempt to deflect blame from himself and also because Ab-bate seemed to focus on her. See Trial Transcript, pp. 272-273, 291-292. Aceves also mentioned Fenters at the subsequent June 4, 2003 meeting because she was first suggested by Abbate himself. See Trial Transcript, p 268, 270, 272. Abbate indicated that Aceves could receive a shorter sentence if he helped make the case against Fenters easier. See Trial Transcript, p. 294. The prosecution echoed this offer. Bacciarini Deposition, p. 64. Ab-bate also told Aceves that if Aceves could get evidence to convict Fenters that he could benefit in his own case. See Trial Transcript, pp. 295. Bacciarini recalls that Aceves may have told him that he was pressured by Abbate to implicate Fenters. Bacciarini Deposition, p. 48-49. There is thus ample evidence that Abbate suggested Fenters as a possible embezzler and that Aceves never implicated her of his own accord. Aceves provided similar and more extensive testimony during his deposition. In addition to confirming that the subject events were fresher in his mind at the time of his criminal testimony, see Aceves Deposition, p. 168, Aceves confirmed that Abbate was the first person to suggest Tiffany Fenters. Aceves Deposition, p. 170, 171, 172, 182. Aceves was never pressured for additional information about anyone else who was identified as a possible embezzler, just Tiffany. Aceves Deposition, p. 173, 178. Despite the focus on Fenters, no one ever asked Aceves to provide details regarding any alleged conversations he had with Fenters, identify any dates where the two of them met, provide any phone records, identify any shift records where the two of them worked together, review any videotapes from the cash register area where the illicit instruction allegedly took place, or provide any bank records or other evidence of his obtaining illicit funds. See Aceves Deposition, p. 175-177, 187-188. Aceves testified “that’s why it was kind of easy to lie because nobody actually went into detail.” Aceves Deposition, p. 175. It seemed that the objective of Abbate and Hutton was to pursue Fenters and have him testify against her. Aceves Deposition, p. 178, 181. This evidence further demonstrates that Abbate and Hutton’s entire object was to construct a case against Fenters, even if it meant disregarding the truth.

Court Ruling: DISPUTED. Although Aceves testified at his deposition that he told Abbate on March 21, 2003 that Plaintiff taught him how to steal through the voiding transaction scheme, Aceves testified differently and inconsistently at Plaintiffs criminal trial.

DUF 8: On March 31, 2003, Abbate did not threaten or coerce Aceves into confessing that he stole from Yosemite Chevron.

Plaintiff's Response: UNDISPUTED, but Plaintiff asserts that Abbate’s coercion pertained to having Aceves falsely implicate Plaintiff.

DUF 9: On or about May 14, 2003, Abbate made a complaint to the Merced County District Attorney’s Office (“District Attorney”), including its investigators, that he believed Fenters and Aceves were stealing from Yosemite Chevron through the voiding transaction scheme. Supporting Evidence: Exh. A, Abbate Dec. ¶ 5; Exh. G, Spencer Depo. 47:6-12, 73:1-8; Exh. H, Hutton Investigation Report.

Plaintiffs Response: Disputed, as the evidence shows that Abbate never had any good faith belief that Fenters was stealing. Abbate misrepresented to Hutton that only one employee worked on the cash register in a given shift, although he knew the opposite was true on a daily basis. Hutton Deposition, p. 20, 74; Abbate Deposition, p. 81, 99. Indeed, employees’ log-on codes to the cash register were typically the last four digits of their phone numbers, and the phone numbers of employees were posted in the store. Abbate Deposition, p. 85. Abbate did not expect employees to review their shift reports on a line by line basis to ensure they were responsible for each transaction. Abbate Deposition, p. 90-91. Abbate also never told Bacciarini that more than one employee could have worked on the cash register during a given shift. Bacciarini Deposition, p. 16. Abbate reiterated this misrepresentation at trial, only later acknowledging during trial on cross examination that voids could not necessarily be linked to a particular employee, as opposed to a particular shift. See Preliminary hearing Transcript, p. 8, 17; Trial Transcript, p. 242. Hutton would have considered it important to know that actually multiple employees could work on the register in a given shift. Hutton Deposition, p. 21. Hutton would have considered this important because it would have made the task of identifying a particular employee who committed wrongdoing more difficult. Hutton Deposition, p. 22. Abbate conceded on cross-examination at the preliminary hearing that the voids attributable to Fenters were overstated in his spreadsheet. See Preliminary Hearing Transcript, pp. 52-59. Abbate also conceded that certain entries in his spreadsheet appeared to be entered wrongly, and he spent no time reviewing the initial draft spreadsheet he prepared. See Preliminary hearing Transcript, pp. 60-61; Ab-bate Deposition, p. 60, 64. Abbate also attributed certain shifts to Fenters, even though the underlying pay point reports did not contain her genuine signature. See Trial Transcript, pp. 491-492. Abbate also represented to Hutton that he had contact with another anonymous employee, who turned out to be Robert Wilson, around the time of Tiffany’s separation from employment who first provided information regarding the alleged embezzlement, but Abbate did not tell Hutton that Wilson had been fired in December 2002 for stealing from Fenters. Hutton Deposition, p. 72, 92-94; Trial Transcript, p. 488. Abbate continued his pattern of misrepresentation at the preliminary hearing and trial by again merely referring to Wilson as an “ex-employee.” See Preliminary Hearing Transcript, p. 41; Trial Transcript, p. 213. There never was an anonymous employee, and Abbate was aware of Wilson’s firing at all pertinent times. See Abbate Deposition, p. 44-45, 97. Hutton would have considered this information important to include in his investigation report. Hutton Deposition, p. 90-91. Ab-bate also initially told Hutton that he has cut Fenters hours beginning in January 2003 because he suspected she was stealing from his business. See Hutton’s Investigative Report, Exh. B to Fung. Deck, pp. 2. Abbate did not concede until trial that Fenters’ hours had not been cut during this time period. See Trial Transcript, pp. 235-236. Indeed, even after Aceves first admitted stealing in March 2003, Ab-bate only believed that he was dealing with a petty issue. Abbate Deposition, p. 102. Abbate also did not provide any tax returns or other financial documents reflecting a drop in revenues during the time when the embezzlement was allegedly occurring. Hutton Deposition, p. 22. Ab-bate also did not provide Hutton with any videotapes from the register area. Hutton Deposition, p. 23. This is further circumstantial evidence of his intent to conceal the truth and unduly influence the criminal proceedings against Fenters.

Court Ruling: UNDISPUTED; Plaintiffs evidence does not contradict DUF 9 as stated among other things.

DUF 10: The District Attorney’s Office, including its investigators, were in charge of the investigation in Fenters’ case. Exh. I, Bacciarini Depo. 74:6-75:1; Exh. G, Spencer Depo. 36:13-16; Exh. B, Jury Trial Transcript 30:6-18; Exh. J, Souza Depo. 94:7-16, 144:22-145:12; Exh. K, Vernon Fenters Depo. 51:10-13, 66:7-11, 69:7-10.

Plaintiff's Response: Disputed, as the evidence shows the District Attorney’s Office was unduly influenced by Abbate’s misrepresentations. The prosecution relied on Abbate’s operating in good faith in proceeding to a preliminary hearing and trial. Bacciarini Deposition, p. 87-88. However, Abbate misrepresented to Hutton that only one employee worked on the cash register in a given shift, although he knew the opposite was true on a daily basis. Hutton Deposition, p. 20, 74; Ab-bate Deposition, p. 81, 99. Indeed, employees’ log on codes to the cash register were typically the last four digits of their phone numbers, and the phone numbers of employees were posted in the store. Ab-bate Deposition, p. 85. Abbate did not expect employees to review their shift reports on a line by line basis to ensure they were responsible for each transaction. Abbate Deposition, p. 90-91. Abbate also never told Bacciarini that more than one employee could have worked on the cash register during a given shift. Bacciarini Deposition, p. 16. Abbate reiterated this misrepresentation at trial, only later acknowledging during trial on cross examination that voids could not necessarily be linked to a particular employee, as opposed to a particular shift. See Preliminary hearing Transcript, p. 8, 17; Trial Transcript, p. 242. Hutton would have considered it important to know that actually multiple employees could work on the register in a given shift. Hutton Deposition, p. 21. Hutton would have considered this important because it would have made the task of identifying a particular employee who committed wrongdoing more difficult. Hutton Deposition, p. 22. Until the time the Cassabon firm was retained after the preliminary hearing, the District Attorney’s Office relied on Abbate to review the financial information pertinent to the case against Fenters. Hutton Deposition, p. 33-34. Abbate’s financial analysis was one of the reasons that Hutton submitted the case against Fenters for filing. Hutton Deposition, p. 82. Indeed, the Abbate spreadsheet was the only financial evidence then available in a prospective financial crime case. Hutton Deposition, pp. 82-83. Abbate conceded on cross-examination at the preliminary hearing that the voids attributable to Fenters were overstated in his spreadsheet. See Preliminary Hearing Transcript, pp. 52-59. Ab-bate also conceded that certain entries in his spreadsheet appeared to be entered wrongly, and he spent no time reviewing the initial draft spreadsheet he prepared. See Preliminary hearing Transcript, pp. 60-61; Abbate Deposition, p. 60, 64. Ab-bate also attributed certain shifts to Fenters, even though the underlying pay point reports did not contain her genuine signature. See Trial Transcript, pp. 491-492. Abbate also represented to Hutton that he had contact with another anonymous employee, who turned out to be Robert Wilson, around the time of Tiffany’s separation from employment who first provided information regarding the alleged embezzlement, but Abbate did not tell Hutton that Wilson had been fired in December 2002 for stealing from Fenters. Hutton Deposition, p. 72, 92-94; Trial Transcript, p. 488. Abbate continued his pattern of misrepresentation at the preliminary hearing and trial by again merely referring to Wilson as an “exemployee.” See Preliminary Hearing Transcript, p. 41; Trial Transcript, p. 213. There never was an anonymous employee, and Abbate was aware of Wilson’s firing at all pertinent times. See Abbate Deposition, p. 44-45, 97. Hutton would have considered this information important to include in his investigation report. Hutton Deposition, p. 90-91. Abbate also initially told Hutton that he has cut Fenters hours beginning in January 2003 because he suspected she was stealing from his business. See Hutton’s Investigative Report, Exh. B to Fung. Decl., pp. 2. Abbate did not concede until trial that Fenters’ hours had not been cut during this time period. See Trial Transcript, pp. 235-236. Indeed, even after Aceves first admitted stealing in March 2003, Abbate only believed that he was dealing with a petty issue. Abbate Deposition, p. 102. Abbate also did not provide any tax returns or other financial documents reflecting a drop in revenues during the time when the embezzlement was allegedly occurring. Hutton Deposition, p. 22. Abbate also did not provide Hutton with any videotapes from the register area. Hutton Deposition, p. 23. This is further circumstantial evidence of his intent to conceal the truth and unduly influence the criminal proceedings against Fenters. The record also shows that the District Attorney’s Office did no independent investigation that would have permitted it to exercise its discretion in any genuine and autonomous manner. Spencer acknowledged, although it was not done in this case, that his office commonly sought the assistance of a forensic accountant or fraud examiner during the investigation stage of a case. Spencer Deposition, p. 56. Indeed, Hutton conceded at trial that he did nothing to corroborate Aceves’ statement and Abbate’s spreadsheet, even though he knew Abbate was not an accountant and that confessions are not always the full truth. See Trial Transcript, pp. 377-378, 401-M04. Hutton never did an independent analysis of the Abbate spreadsheets. Bacciarini Deposition, p. 22; Abbate Deposition, p. 108. Hutton also never tested the store surveillance system himself, even though the system would depict money taken from the register by an employee. Hutton Deposition, p. 24. Hutton never took any steps to obtain any financial information pertaining to Fenters. Hutton Deposition, p. 28-29; Trial Transcript, pp. 443. Hutton did not attempt to speak with Fenters’ parents as part of his investigation, even though there was an allegation that Fenters had been “cut off’ by them and therefore had a motive to steal. Hutton Deposition, p. 30. (Fenters’ father, Virgil Fenters, refuted this allegation at trial. See Trial Transcript, p. 418.) Hutton also never obtained any shift records that corroborated the allegation that Fenters’ hours were cut in February 2003 due to her being suspected of stealing. Hutton Deposition, p. 71. Hutton “assumed there was a friendly connection between Fenters and Aceves but made no effort to confirm that through investigation, i.e., phone records, or other Yosemite Chevron employees, Hutton Deposition, p. 31.” Hutton also never asked for specifics regarding where Aceves and Fenters were when Fenters allegedly taught him to do illegal voiding. Hutton Deposition, p. 31-32. Hutton never investigated any information suggesting that Abbate was a drug user, although it was provided by the defense during discovery and Hutton acknowledges that such matters can have a bearing on a witness’ credibility in a case involving alleged financial loss. Hutton Deposition, p. 83-84; Baeeiarini Deposition, p. 88. Hutton never asked Aceves if he had prior cash register experience. Trial Transcript, p. 391. Hutton never investigated how many employees worked or could use the register in a given shift. Trial Transcript, p. 393. The evidence also shows that Abbate was part of the District Attorney’s investigative team for purposes of Fenters’ criminal case. Hutton acknowledges that Abbate was assisting in the District Attorney’s investigation of the Fenters matter between May 14 and June 4, 2003. Hutton Deposition, p. 43. Abbate also acknowledges he assisted in the investigation and had his most extensive contacts with Hutton during the investigative phase of the Fenters criminal case. Ab-bate Deposition, p. 104, 124. Hutton testified an interview protocol was set up between Abbate and himself with respect to the June 4, 2003 interview of Aceves. Hutton Deposition, p. 42-43. Abbate also set up the June 4, 2003 interview with Aceves. Hutton Deposition, p. 44. Ab-bate actually conducted the first part of that interview, which was done in conformity with guidelines provided by Hutton. Hutton Deposition, pp. 44-45; Abbate Deposition, p. 109-110. Abbate provided an additional eight months of financial analysis at the District Attorney’s request. Hutton Deposition, p. 44; Abbate Deposition, p. 79. Hutton spent approximately 20 hours doing his work on the Fenters case, while Abbate worked 35 hours, not including time he spent assisting in interviews at Hutton’s direction. Hutton Deposition, p. 57; Abbate Deposition, p. 61-62. All of Hutton’s investigation is reflected in his initial and follow up reports. Hutton Deposition, p. 57. Baeeiarini, the lead prosecutor at the preliminary hearing and at trial, has as many contacts with Abbate as he did Hutton in preparation for the preliminary hearing. Baeeiarini Deposition, pp. 10-11. Additionally, James Swanson, who was the prosecutor handling the case against Fenters after the preliminary hearing until just before it went to trial, told Fenters’ attorney that he was not permitted to resolve the case via a misdemeanor petty theft plea. See Virgil Fenters Deposition, pp. 32, 35-36. This is further circumstantial evidence of the District Attorney’s compromised status in the Fenters criminal case.

Court Ruling: DISPUTED.

DUF 11: The District Attorney’s Office, including its investigators, controlled the investigation into Fenters’ alleged embezzlement. Supporting Evidence: see DUF 10.

Plaintiffs Response: Disputed on identical grounds set forth in response to DUF 10.

Court Ruling: Disputed.

DUF 12: Wayne Hutton was the lead investigator for the District Attorney’s office in the criminal case against Fenters.

Plaintiffs Response: UNDISPUTED, although for reasons stated in response to DUF 10, Abbate was functionally the lead investigator.

DUF 13: Hutton had not met Abbate prior to the criminal action.

Plaintiffs Response: UNDISPUTED.

DUF Ik: Abbate prepared a spreadsheet recording average voided transactions and the dollar amount of those transactions, of Fenters, Aceves, and other employees in the gas station (the “Abate Spreadsheet”), which was attached to Hutton’s investigation report.

Plaintiffs Response: Disputed as to the good faith and completeness of the spreadsheet document. Until the time the Cassabon firm was retained after the preliminary hearing, the District Attorney’s Office relied on Abbate to review the financial information pertinent to the case against Fenters. Hutton Deposition, p. 33-34. Abbate’s financial analysis was one of the reasons that Hutton submitted the case against Fenters for filing. Hutton Deposition, p. 82. Indeed, the Abbate spreadsheet was the only financial evidence then available in a prospective financial crime case. Hutton Deposition, pp. 82-83. Ab-bate conceded on cross-examination at the preliminary hearing that the voids attributable to Fenters were overstated in his spreadsheet. See Preliminary Hearing Transcript, pp. 52-59. Abbate also conceded that certain entries in his spreadsheet appeared to be entered wrongly, and he spent no time reviewing the initial draft spreadsheet he prepared. See Preliminary hearing Transcript, pp. 60-61; Ab-bate Deposition, p. 60, 64. Abbate also attributed certain shifts to Fenters, even though the underlying pay point reports did not contain her genuine signature. See Trial Transcript, pp. 491^492. Abbate also did not provide any tax returns or other financial documents reflecting a drop in revenues during the time when the embezzlement was allegedly occurring. Hutton Deposition, p. 22. Abbate also did not provide Hutton with any videotapes from the register area. Hutton Deposition, p. 23. This is further circumstantial evidence of his intent to conceal the truth and unduly influence the criminal proceedings against Fenters.

Court Ruling: DUF 14 is UNDISPUTED; Plaintiffs evidence does not contradict the fact that Abbate prepared the spreadsheet attached to Hutton’s investigative report.

DUF 15: On June, 4, 2003, Aceves met Abbate at his office.

Plaintiff’s Response: UNDISPUTED.

DUF 16: On June 4, 2003, Aceves again confessed to Abbate that he had been stealing through a voiding transaction scheme.

Plaintiff’s Response: Disputed. During his trial testimony, Aceves testified that he learned how to do illegal voids himself, in order to obtain extra money. See Trial Transcript, pp. 266-267, 276, 285, 287. Aceves never told Abbate he had seen Fenters do any illegal voids or steal any money from the store. Trial Transcript, pp. 275. In connection with his firing of Aceves, Abbate first brought up Fenters’ name, saying that “he knew Tiffany was in it.” Trial Transcript, p. 291. Aceves thereafter only implicated Fenters and other employees in an attempt to deflect blame from himself and also because Ab-bate seemed to focus on her. See Trial Transcript, pp. 272-273, 291-292. Aceves also mentioned Fenters at the subsequent June 4, 2003 meeting because she was first suggested by Abbate himself. See Trial Transcript, p 268, 270, 272. Abbate indicated that Aceves could receive a shorter sentence if he helped make the case against Fenters easier. See Trial Transcript, p. 294. The prosecution echoed this offer. Bacciarini Deposition, p. 64. Ab-bate also told Aceves that if Aceves could get evidence to convict Fenters that he could benefit in his own case. See Trial Transcript, pp. 295. Bacciarini recalls that Aceves may have told him that he was pressured by Abbate to implicate Fenters. Bacciarini Deposition, p. 48^49. There is thus ample evidence that Abbate suggested Fenters as a possible embezzler and that Aceves never implicated her of his own accord. Aceves provided similar and more extensive testimony during his deposition. In addition to confirming that the subject events were fresher in his mind at the time of his criminal testimony, see Aceves Deposition, p. 168, Aceves confirmed that Abbate was the first person to suggest Tiffany Fenters. Aceves Deposition, p. 170, 171, 172, 182. Aceves was never pressured for additional information about anyone else who was identified as a possible embezzler, just Tiffany. Aceves Deposition, p. 173, 178. Despite the focus on Fenters, no one ever asked Aceves to provide details regarding any alleged conversations he had with Fenters, identify any dates where the two of them met, provide any phone records, identify any shift records where the two of them worked together, review any videotapes from the cash register area where the illicit instruction allegedly took place, or provide any bank records or other evidence of his obtaining illicit funds. See Aceves Deposition, p. 175-177, 187-188. Aceves testified “that’s why it was kind of easy to lie because nobody actually went into detail.” Aceves Deposition, p. 175. It seemed that the objective of Abbate and Hutton was to pursue Fenters and have him testify against her. Aceves Deposition, p. 178, 181. This evidence further demonstrates that Abbate and Hutton’s entire object was to construct a case against Fenters, even if it meant disregarding the truth.

Court Ruling: DUF 16 is UNDISPUTED. The record establishes that on June 4, 2003, Aceves again confessed to Abbate that he had been stealing through a voiding transaction scheme; that Aceves changed his position at trial does not contradict this fact.

DUF 17: On June 4, 2003, Aceves again told Abbate that Fenters was the person that had taught him how to steal through the voiding transaction scheme.

Plaintiffs Response: Disputed on identical grounds stated in response to DUF 16.

Court Ruling: DUF 17 is UNDISPUTED; Plaintiffs evidence does not contradict what Aceves told Abbate on June 4, 2003.

DUF 18: Aceves testified in deposition that he was not under any threats or coercion when he went to meet with Abbate on June 4, 2003, and told him how he was stealing. Supporting Evidence: Supporting Evidence: Exh. F, Aceves Depo. 98:918, 99:9-102:3, 103:3-22, 105:2-12, 106:20-108:21, 110:2-112::23, 129:13-23, 176:5-22,194:4-196:2; Exh. B, Aceves trial testimony 267:3-12.

Plaintiffs Response: Disputed on identical grounds stated in response to DUF 16.

Court Ruling: DUF 18 is UNDISPUTED; Aceves so testified under oath in his deposition. Further, Plaintiff does not dispute DUF 8.

DUF 19: Aceves testified in deposition that he was not under any threats or coercion when he went to meet with Abbate on June 4, 2003, and told him that Fenters taught him how to steal. Supporting Evidence: Exh. F, Aceves Depo., 50:11-51:5, 111:8-115:21, 117:7-119:14, 129:13-132:17, 159:4-160:13.

Plaintiff’s Response: Disputed on identical grounds stated in response to DUF 16.

Court Ruling: DUF 19 is UNDISPUTED; Aceves so testified under oath at his deposition. Plaintiff has not provided evidence Aceves was under any threat or coercion when he gave his deposition testimony.

DUF 20: Aceves ultimately pled no contest to felony embezzlement for stealing from Yosemite Chevron.

Plaintiffs Response: UNDISPUTED.

DUF 21: Aceves readily admits that he stole from Yosemite Chevron through voiding transactions.

Plaintiffs Response: UNDISPUTED.

DUF 22: On June 23, 2003, the District Attorney filed a Complaint against Fenters for Embezzlement titled the People of the State of California v. Tiffany Michelle Fenters, Merced County Superior Court Case No. MF36082.

Plaintiffs Response: UNDISPUTED.

DUF 23: Abbate did not participate in or control the decision to file the Complaint. Supporting Evidence: Exh. 0, Criminal Complaint; Exh. P, Bacciarini Decl., ¶ 5; Exh. M, Abbate Depo., 121:7-16; Exh. A, Abbate Decl., ¶ 7.

Plaintiffs Response: Disputed on identical grounds stated in response to DUF 10.

Court Ruling: DISPUTED. There is evidence from which it may be inferred that Abbate influenced the filing decision in the criminal case.

DUF 2D Mark Bacciarini (“Bacciarini”) was the Deputy District Attorney for the District Attorney’s Office that conducted the preliminary hearing and jury trial.

Plaintiffs Response: UNDISPUTED.

DUF 25: It was the District Attorney’s decision to take the matter to preliminary hearing. Supporting Evidence: Exh. I, Bacciarini Depo., 74:15-75:22.

Plaintiffs Response: Disputed on identical grounds stated in response to DUF 10.

Court Ruling: DUF 25 is UNDISPUTED; Plaintiffs evidence does not contradict that the District Attorney made the decision to proceed to a preliminary hearing, even if influenced by Abbate.

DUF 26: On July 30, 2004, a preliminary hearing was held in People v. Fenters.

Plaintiffs Response: UNDISPUTED.

DUF 27: Judge Ronald R. Hansen ruled at the preliminary hearing that the Abbate Spreadsheet was inadmissible.

Plaintiffs Response: UNDISPUTED.

DUF 28: Judge Hansen also ruled at the preliminary hearing there was sufficient evidence to show the alleged felony was committed by Fenters.

Plaintiffs Response: UNDISPUTED, although Plaintiff contends this finding was based on false and fabricated evidence.

DUF 29: On August 12, 2004, the District Attorney filed the Information in People of the State of California v. Tiffany Michelle Fenters, Merced County Superior Court Case No. 29142.

Plaintiffs Response: UNDISPUTED.

DUF 30: Abbate did not participate in or control the decision to file the Information. Supporting Evidence: Exh. Q, Criminal Information; Exh. P, Bacciarini Decl., ¶ 4; Exh. I, Bacciarini Depo. 74:15-75:22; Exh. A, Abbate Decl., ¶ 8.

Plaintiffs Response: Disputed on identical grounds stated in response to DUF 10.

Court Ruling: DUF 30 is UNDISPUTED; Plaintiffs evidence does not negate the absence of evidence that Abbate did not participate in or control the decision to file the Information, even if he influenced the decision.

DUF 31: After the preliminary hearing, the District Attorney hired an outside accounting expert, Cassabon & Associates, as a witness for the prosecution.

Plaintiffs Response: UNDISPUTED.

DUF 32: The District Attorney hired Cassabon & Associates based on its prosecutorial discretion. Supporting Evidence: Exh. G, Spencer Depo., 66:7-24, 77:17-78:3; Exh. P, Bacciarini Decl., ¶ 2.

Plaintiffs Response: Disputed on the identical grounds stated in response to DUF 10.

Court Ruling: DUF 32 is UNDISPUTED. Plaintiffs evidence does not contradict that the District Attorney hired Cassabon & Associates to provide expert services and testimony for the prosecution and provides no evidence that Abbate had any participation in that decision.

DUF 33: Cassabon & Associates’ assignment was to analyze daily register records to determine if anything was suspicious with the transactions taking place at Yosemite Chevron. Supporting Evidence: Exh. T, Fung Depo., 20:9-19; Exh. B, Jury Trial Transcript, 320:19-22.

Plaintiff’s Response: Disputed. As defendant Fung testified at the criminal trial, his assignment was “to determine whether there [were] assets misappropriated at the Yosemite Chevron gas station, and if any, estimate the amount of ... embezzlement.” Trial Transcript, p. 320. In his deposition, Fung described his assignment as “[t]racing the money.” Fung Deposition, p. 12.

Court Ruling: DISPUTED. Defendants’ characterization of the employment of Cassabon & Associates is too limited; it included a fraud investigation, calculating the amount of loss, and tracing the money.

DUF 3k: Cassabon & Associates went through the daily register records (Pay Point Reports) to analyze the frequency of voided transactions in relationship to the total amount of sales transactions among the various employees.

Plaintiffs Response: UNDISPUTED.

DUF 35: Victor Fung (“Fung”), of Cassabon & Associates, performed an analysis of Yosemite Chevron’s daily register records (Pay Point Reports) and determined that Fenters embezzled cash from Yosemite Chevron, as memorialized in his Report of October 31, 2004. Supporting Evidence: Ex. B, Jury Trial Transcript, 320:23:321:9. 322:1-10, 344:3-10

Plaintiffs Response: Disputed. Fung did not “determine” anything, but merely reached an opinion that cash was taken. Additionally, Fung reached this opinion without considering a number of factors, including how voids could occur, whether multiple employees worked on the register during a given shift, the internal controls of the business, and the videotapes that would have shown what the ordinary course of business was. Trial Transcript, pp. 345-354. Fung attributed all of the voids on the shifts Fenters worked to her, even though there was preceding trial testimony that established that multiple employees worked and used the register each shift. See Trial Testimony, pp. 242, 347, 349. During the criminal trial, plaintiffs accounting expert, John Bettencourt, testified that it was necessary for a forensic accountant under the circumstances presented to evaluate the internal controls of the subject business, as well as its cash register policies, both as written and practiced. See Trial Transcript, p. 521-522. Bettencourt visited Yosemite Chevron posing as a customer five times and found internal controls lacking, with multiple employees working the cash register during a given shift. See Trial Transcript, pp. 528. As many as eight people were found to use a register during a two shift period. See Trial Transcript, pp. 537-538. Bettencourt also found that Fung’s reliance on an “acceptable void” figure to be specious because nine of the twelve employees exceeded that average, and, under Fung’s criteria, would have been stealing. See Trial Transcript, pp. 544. In his deposition, Fung acknowledged that he was not trained as a forensic accountant and had only been a CPA for two months at the time he was assigned the Fenters case. Fung Deposition, pp. 14, 17. Fung was not attempting to follow any accounting standards or protocols in this case. Fung Deposition, p. 15. Fung did not contact Abbate or anyone else affiliated with Yosemite Chevron. Fung Deposition, p. 23. Fung never visited the business location, reviewed the model cash register used at the business, or reviewed any surveillance videos from the business. Fung Deposition, p. 23-24. Fung also did not review any financial or profitdoss statements of Yosemite Chevron. Fung Deposition, p. 24. No one ever offered these documents to Fung, and he did not request them. Fung Deposition, p. 25, 62. Fung also did not receive a list of Yosemite Chevron employees. Fung Deposition, p. 25. Fung described his approach to his assignment as figuring out the frequency of void transactions in relation to the total sales transactions and then make an employee by employee comparison. Fung Deposition, p. 30. Fung only reviewed the pay point reports and the criminal report, which included Abbate’s spreadsheet. Fung Deposition, p. 23, 31. Fung assumed that an employee who signed a pay point report was responsible for every transaction reflected therein, even though he never tested that assumption. Fung Deposition, p. 40. Fung considered the possibility that a pay point report might reflect more than one employee’s work product but discounted it in his methodology, based on the further assumption that “that chance is the same for all employees.” Fung Deposition, p. 41, 43. Fung felt this variable could be discounted even if certain employees were intentionally stealing and were therefore trying to conceal their identities. Fung Deposition, p. 42-43. Fung did not take any action in an attempt to validate this assumption, such as sampling reports or interviewing employees. Fung Deposition, p. 45. Fung also did not consider that different numbers of people worked different shifts. Fung Deposition, p. 46-47. Fung did not consider the days and shifts on which inventory was recorded in his analysis. Fung Deposition, p. 52. Fung also did nothing to assess the quality of the controls in place at Yosemite Chevron, although he recognized that this could affect the reliability of the records he reviewed. Fung Deposition, p. 53-54. Overall, Fung’s approach was similar to the Ab-bate’s spreadsheet approach. Baeciarini Deposition, p. 14. In Bettencourt’s expert report, he declared that the spreadsheet provided by defendant Robert Abbate and the work product of Cassabon were indicative of false, fabricated and/or misleading work product Bettencourt opined that the defendants’ accounting work was not merely substandard or negligent but instead is reflective of false, fabricated, and/or misleading work. See Bettencourt Report, Exhibit A. In his deposition, Bettencourt confirmed his report and further testified that Abbate’s and Cassabon’s work product was misleading and misstated the evidence. See Bettencourt Deposition, pp. 33, 38, 78, 97. Bettencourt testified that it was not reasonable or in good faith actions to attribute all of the voids on a particular shift to a specific employee. Bettencourt Deposition, p. 157-158, 161. Both Abbate’s spreadsheet and Fung’s report were similar in this respect. Bettencourt Deposition, p. 160, 161. Bettencourt is of the opinion that these actions could raise an inference of bad faith that could be found by a jury. Bettencourt Deposition, p. 163.

Court Ruling: DUF 35 is UNDISPUTED that Fung analyzed the daily register records (Pay Point Reports) and opined that Fenters embezzled cash from Yosemite Chevron, as memorialized in his Report of October 31, 2004. That Plaintiff claims her evidence shows that Fung’s analysis was incomplete, dishonest and incompetent, does not contradict this fact.

DUF 36: Fung did not rely upon the spreadsheet or analysis of Robert Abbate in preparing his Report in the criminal action. Supporting Evidence: Exh. B, Jury Trial Transcript, 320-321:9; Exh. T, Bettancourt Depo., 85:7-11, 121:6-8; Exh. S, Fung Decl. ¶ 16.

Plaintiff’s Response: Disputed. Fung testified in his deposition that the first thing he did after Cassabon’s retention was to meet with defendant Hutton and the then assigned prosecutor, James Swanson. Fung Deposition, p. 18. During a one hour meeting, Fung was told that the prosecution suspected that Fenters was stealing money by voiding transactions. Fung Deposition, p. 18. Fung was told the prosecution wanted him to analyze the pay point reports, a box of which he received on that occasion. Fung Deposition, p. 20. Fung also received Hutton’s report which had Abbate’s spreadsheet as an attachment. Fung Deposition, pp. 19, 22. Fung was told the attachment was a spreadsheet prepared by Abbate himself. Fung Deposition, p. 22. Overall, Fung’s approach was similar to the Abbate’s spreadsheet approach. Bacciarini Deposition, p. 14.

Court Ruling: DUF 36 is DISPUTED. Plaintiffs evidence raises a question of fact that Fung relied on or analyzed Abbate’s spreadsheet and attached to Hutton’s report.

DUF 38: Fung decided on the methodology to be utilized for his analysis. Supporting Evidence: Exh. T, Fung Depo., 30:10-15, 35:15-17, 36:5-11; Exh. S, Fung Decl. ¶ 6; Exh. U, Bettancourt Depo. 45:4-10

Plaintiffs Response: Disputed on the identical grounds stated in response to DUF 37.

Court Ruling: DUF 38 is DISPUTED. Plaintiffs evidence permits the inference that Fung was so inexperienced and incompetent as to raise a question of fact that Fung decided the methodology utilized for his analysis.

DUF 39: Cassabon & Associates, including Fung, had no contact with Abbate at any time regarding the criminal action.

Plaintiffs Response: UNDISPUTED.

DUF 40: Fung was not told anything about the individual who was the principal for the victim, Yosemite Chevron, during the course of his work in the criminal action. Supporting Evidence: Exh. T, Fung Depo., 60:16-19.

Plaintiffs Response: Disputed on the identical grounds stated in response to DUF 37.

Court Ruling: DUF 40 is UNDISPUTED. Plaintiffs evidence does not contradict Fung’s deposition testimony that he was not told anything about Abbate.

DUF 4.1: Cassabon & Associates, including Fung, never went to Yosemite Chevron as part of their work in People v. Fenters.

Plaintiffs Response: UNDISPUTED.

DUF 42: Cassabon & Associates, including Fung, never contacted any employees from Yosemite Chevron as part of their work in People v. Fenters.

Plaintiffs Response: UNDISPUTED.

DUF 43: Fung never contacted any accountant or bookkeeper that had any relationship with Yosemite Chevron.

Plaintiffs Response: UNDISPUTED.

DUF 44'- Bacciarini never discussed the Abbate family with Fung or Cassabon & Associates.

Plaintiffs Response: UNDISPUTED.

DUF 45: Fung did not have any contact with members of the Abbate family during the course of his work in the criminal action.

Plaintiffs Response: UNDISPUTED.

DUF 46: Fung never asked to review any materials that were not provided to him.

Plaintiffs Response: UNDISPUTED.

DUF 47: The criminal trial in People v. Fenters took place between October 5 to 13, 2005.

Plaintiffs Response: UNDISPUTED.

DUF 48: Bacciarini did not mention or reference the Abbate Spreadsheet in his Opening Statement at the criminal trial. Supporting Evidence: Exh. B, Jury Trial Transcript, 171-181; Exh. I, Bacciarini Depo., 72:6-25.

Plaintiff’s Response: Disputed. As the transcript of the opening statement at trial shows, Bacciarini argued for Fenters’ guilt based on several factors, not merely the financial analysis performed by Cassabon. Bacciarini also recalls that Abbate’s financial analysis was part of his presentation at both the preliminary hearing and at trial. Bacciarini Deposition, 83-84.

Court Ruling: DUF 48 is UNDISPUTED. Plaintiffs evidence does not contradict that Bacciarini did not mention or refer to the Abbate Spreadsheet in his opening statement. Bacciarini’s deposition testimony cited by Plaintiff does not state that Bacciarini relied on Abbate’s analysis at trial.

DUF i-9: In his Opening Statement, Bacciarini argued Fenters was guilty based on Fung’s Report. Supporting Evidence: Exh. B, Jury Trial Transcript, 171— 181.

Plaintiffs Response: Disputed on identical grounds stated in response to DUF 48.

Court Ruling: DUF 49 is DISPUTED to the extent that Bacciarini relied on other factors as well as the report prepared by Fung; but UNDISPUTED that Bacciarini did not refer to the Abbate Spreadsheet.

DUF 50: At the criminal trial, Bacciarini relied upon Cassabon & Associates’ analysis of Yosemite Chevron’s daily register records. Supporting Evidence: Exh. B, Jury Trial Transcript, 171-181, 318-363, 642-657, 694, 697, 198-224, 222:22-255, 245-250; Exh. I, Bacciarini Depo., 72:2-19.

Plaintiffs Response: Disputed on identical grounds stated in response to DUF 48.

Court Ruling: DUF 50 is UNDISPUTED. Plaintiffs evidence does not contradict that Bacciarini relied, at least in part, on Fung’s report.

DUF 51: The District Attorney did not mark or introduce the Abbate Spreadsheet into evidence at the criminal trial.

Plaintiffs Response: Disputed. Bacciarini recalls that Abbate testified at both the preliminary hearing and the criminal trial regarding his financial analysis. Bacciarini Deposition, p. 83-84. Overall, Fung’s approach was similar to the Ab-bate’s spreadsheet approach. Bacciarini Deposition, p. 14.

Court Ruling: DUF 51 is UNDISPUTED. Abbate’s testimony at the preHminary hearing is irrelevant to DUF 51 because his spreadsheet was ruled inadmissible at the preliminary hearing. More importantly, DUF 51 pertains to the introduction of Abbate’s spreadsheet at the criminal trial. Plaintiff presents no evidence that the Abbate Spreadsheet was introduced at the criminal trial.

DUF 52: During the criminal trial, the District Attorney did not ask Abbate to testify about his analysis or findings from the Abbate Spreadsheet. Supporting Evidence: Exh. B, Jury Trial Transcript 198-224, 222:22-255, 245-250; Exh. I, Bacciarini Depo., 72:6-19.

Plaintiffs Response: Disputed. Bacciarini recalls that Abbate testified at both the preliminary hearing and the criminal trial regarding his financial analysis. Bacciarini Deposition, p. 83-84. Abbate testified about his investigation into Fenters’ and Aceves’ voided transactions on pages 221-222 of the criminal trial transcript. Even though he did not make specific reference to his spreadsheet, Abbate did testify about his findings and underlying methodology. It is because of this direct examination testimony that the defense was able to question Abbate about the spreadsheet itself on cross examination. See Trial Transcript, pp. 236-241. Even Hutton acknowledges this took place. Hutton Deposition, p. 82.

Court Ruling: DISPUTED.

DUF 53: During the criminal trial, Fung did not testify about the calculations or analysis made by Abbate.

Plaintiff’s Response: Disputed, as Bacciarini recalls that Fung’s approach was similar to the Abbate’s spreadsheet approach. Bacciarini Deposition, p. 14.

Court Ruling: DUF 53 is UNDISPUTED. Plaintiff points to no testimony by Fung, which speaks of itself, pertaining to the calculations or analysis made by Ab-bate; that the Cassabon Defendants’ analysis was similar to that of Abbate does not negate that Fung did not testify about Abbate’s calculations or analysis.

DUF 5f. Bacciarini did not mention or reference the Abbate Spreadsheet in his Closing Statement at the criminal trial.

Plaintiffs Response: Disputed. As the transcript of the trial shows, Bacciarini argued for Fenters’ guilt based on several factors, not only the financial analysis performed by Cassabon. Bacciarini also recalls that Abbate’s financial analysis was part of his presentation at both the preliminary hearing and at trial. Bacciarini Deposition, 83-84.

Court Ruling: DUF 54 is UNDISPUTED. Plaintiffs evidence does not contradict that Bacciarini did not mention or reference the Abbate Spreadsheet during his closing argument.

DUF 55: In his Closing Statement, Bacciarini argued Fenters was guilty based on the Fung Report and Aceves statements. Supporting Evidence: Exh. B, Jury Trial Transcript 642-657, 694-697.

Plaintiffs Response: Disputed on identical grounds stated in response to DUF 54.

Court Ruling: DUF 55 is UNDISPUTED that Bacciarini relied primarily on the Fung report and the Aceves statements in his closing argument.

DUF 56: The first time Aceves told anyone from the District Attorney’s office that Fenters was not involved in the voiding transaction scheme was during the criminal trial. Supporting Evidence: Exh. I, Bacciarini Depo., 47:6-48:5; Exh. B, Jury Trial Transcript 648:9-17; Exh. F, Aceves Depo., 69:11-25, 70:13-20, 185:23-186:15,129:13-132:18.

Plaintiffs Response: Disputed. Defendant Hutton was present at the June 4, 2003 meeting when Aceves only mentioned Fenters because she was first suggested by Abbate himself. See Trial Transcript, p 268, 270, 272. Abbate indicated that Aceves could receive a shorter sentence if he helped make the case against Fenters easier. See Trial Transcript, p. 294. The prosecution echoed this offer. Bacciarini Deposition, p. 64. Abbate also told Aceves that if Aceves could get evidence to convict Fenters that he could benefit in his own case, in part in order to “lure him in.” See Trial Transcript, pp. 295; Abbate Deposition, p. 107. There is thus ample evidence that Abbate suggested Fenters as a possible embezzler and that Aceves never implicated her of his own accord. There is thus evidence that Hutton, who was present for the interview, was on notice of these facts as of June 2003.

Court Ruling: DUF 56 is UNDISPUTED. The transcript of the June 4, 2003 interview between Aceves, Abbate and Hutton does not support Plaintiffs assertions. The transcript is clear that Aceves was the first person to mention Fenters as a participant in Aceves’ scheme to embezzle from Yosemite Chevron. Further, Plaintiffs evidence does not contradict the evidence that the first time Aceves told anyone from the District Attorney’s office that Fenters was not involved in the voiding transaction scheme was during the criminal trial

DUF 57: Aceves never told Abbate that he was not telling the truth when he said Fenters had taught him how to steal. Supporting Evidence: Exh. F, Aceves Depo. 69-11:25, 70:13-20, 185:23-186:15, 129:13-132:18.

Plaintiff’s Response: Disputed on identical grounds stated in response to DUF 16.

Court Ruling: DUF 57 is UNDISPUTED. Plaintiffs evidence does not contradict Aceves deposition testimony that he did not tell Abbate that he was lying about Plaintiff.

DUF 58: Abbate was not in charge of the investigation of the criminal case against Fenters. Supporting Evidence: Exh. I, Bacciarini Depo. 74:15-17.

Plaintiff’s Response: Disputed on identical grounds stated in response to DUF 10.

Court Ruling: DUF 58 is UNDISPUTED as there is not evidence that Abbate was in charge of the investigation of the criminal case, even though there is evidence from which it may be inferred that Abbate influenced the investigation.

DUF 59: It was within the District Attorney’s Office, including its investigators, discretion to determine what evidence to gather to prosecute Fenters.

Plaintiff’s Response: Disputed on identical grounds stated in response to DUF 10.

Court Ruling: DUF 59 is UNDISPUTED. Although there is evidence that Ab-bate sought to influence the prosecution and trial of Plaintiff, those decisions were made by the prosecution.

DUF 60: From commencement of the criminal action until its conclusion, the District Attorney’s office had the discretion whether to file the complaint and information, prosecute, dismiss or plea bargain.

Plaintiff’s Response: Disputed on identical grounds states in response to DUF 10.

Court Ruling: DUF 60 is UNDISPUTED. Although there is evidence that Ab-bate sought to influence the prosecution and trial of Plaintiff, those decisions were made by the prosecution.

DUF 61: Deputy District Attorney Bacciarini did not prosecute the case any differently because the victim was a member of the Abbate family.

Plaintiff’s Response: Disputed. Bacciarini testified that he did not know why Abbate’s complaint did not go to the Merced Police Department first. Bacciarini Deposition, p. 55. Hutton acknowledges that Abbate could have taken his allegations to the Merced Police Department instead of the District Attorney’s Office. Hutton Deposition, p. 45. Moreover, the District Attorney’s Office has directed similar potential cases to the Merced PD. See Exhibit B, Email communication from the Merced DA’s Office re: a potential embezzlement case in the City of Merced. Spencer could not provide only two examples of embezzlement cases in the last five years of his tenure where his officer was the lead investigating agency. Spencer Deposition, p. 35-38.

Court Ruling: DUF 63 is UNDISPUTED. Plaintiffs evidence does not show whether Bacciarini’s prosecution of the criminal case was different from other cases he prosecuted.

DUF 62: Abbate did not control the District Attorney’s decision to proceed to trial.

Plaintiff’s Response: Disputed on identical grounds stated in response to DUF 10.

Court Ruling: DUF 62 is UNDISPUTED. Plaintiffs evidence does not raise an inference that Abbate controlled the District Attorney’s decision to proceed to trial, although there is evidence that Abbate sought to influence the prosecution.

DUF 63: The District Attorney did not prosecute or take the criminal case to trial due to pressure from Robert Abbate or the Abbate family. Supporting Evidence: Exh. G, Spencer Depo. 73:1-8; Exh. J, Souza Depo., 31:8-12, 126:19-127:13, 158:16-22, 40:14-18, 102:15-20; Exh. W, Hutchins Depo., 25:21-25, 2