MORENO v. BACA

Full title: R. MORENO, in his individual capacity, and in his capacity as…

Court: United States District Court, C.D. California, Western Division

Date published: Feb 7, 2002

Case No. 00-07149 ABC (CWx) (C.D. Cal. Feb. 7, 2002)

Opinion

Case No. 00-07149 ABC (CWx)

February 7, 2002

Louis R. Miller, Andrew I. Baum, Bryan M. Sullivan, CHRISTENSEN, MILLER, FINK, JACOBS, GLASER, WEIL SHAPIRO, LLP from Los Angeles, California, Devallis Rutledge, MANNING MARDER, KASS, ELLROD, RAMIREZ LLP from Irvine, California, Michael Antonovich, Yvonne Burke, Donald Knabe, Gloria Molina, and Zev Yaroslavsky, Attorneys for Defendants.

SUPERVISOR DEFENDANTS' RESPONSE TO PLAINTIFF'S OPPOSITION TO THEIR EX PARTE APPLICATION FOR AN ORDER REINSTATING THEIR SUMMARY JUDGMENT MOTION

AUDREY B. COLLINS, United States District Judge

MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION

Defendants Michael Antonovich, Yvonne Burke, Donald Knabe, Gloria Molina and Zev Yaroslavsky (the "Supervisor Defendants") hereby submit this response to Plaintiffs Opposition to Their ex parte Application For Order Reinstating Their Summary Judgment Motion in order to address the factual inaccuracies contained in Plaintiffs' Opposition brief.

The Supervisor Defendants' ex parte Application sought to reinstate their summary judgment motion, which had been stricken by the Court or, in the alternative, for leave to file their motion. Plaintiff opposes the application, claiming that the Supervisor Defendants have impermissibly delayed bringing their summary judgment motion. See Opposition Brief, at 5-8. Alternatively, plaintiff requests that if the Court is inclined to grant the Supervisor Defendants' application, that it do so conditioned on the "prompt" depositions of the Supervisor Defendants. See Id at 8 and Yagman Decl., ¶ 3. In doing so, plaintiff distorts the actual facts at issue here and makes a back — is door attempt to avoid the Supervisor Defendants' legitimate objections to being deposed — objections which were recently sustained by Magistrate Judge Chapman in another matter pendilig before this Court.^1a

1a The Supervisor Defendants, and their counsel, will not respond to the personal attacks made by plaintiffs and his counsel in their invective-laden Opposition Brief.

II. ARGUMENT

A. Plaintiff Distorts the Facts at Issue Here.

Plaintiff claims that the Supervisor Defendants were dilatory and delayed bringing the summary judgment motion at issue herein. See Opposition Brief, at 5-8. As a result, plaintiff argues that the Supervisor Defendants have waived their right to an adjudication of their immunity claims. Id. Plaintiff is wrong.

As noted in the Supervisor Defendants' ex parte Application, they acted with diligence once the appeals were dismissed by the Ninth Circuit on October 2, 2001. Six days later, on October 8, 2001, the Supervisor Defendants wrote to plaintiffs counsel to "meet and confer" regarding the filing of their anticipated summary judgment motion. See Baum Decl., Exh. "A." Plaintiff responded by letter dated October 12, 2001 wherein he stated that he would dismiss this case if the Supervisor Defendants provided his counsel with a draft Stipulation and Order re Voluntary Dismissal. See Id. Exh. "B." The Supervisor Defendants provided such a draft stipulation on two different occasions. See Id. Exhs. "C" and "D." Contrary to his prior representation, however, Plaintiffs counsel refused, and continued to refuse, to execute the stipulation, thus requiring that the Supervisor Defendants bring their summary judgment motion. See Id., ¶ 6. Accordingly, the delay is attributable to Plaintiffs, not the Supervisor Defendants.^2a

2a Plaintiff suggests that part of the delay is due to the fact that the Ninth Circuit's decision in Navarro was issued on May 11, 2001 but the Supervisor Defendants "took no action" until September 10, 2001 to bring a motion to dismiss their appeals. See Opposition Brief, at 6:11-16. A decision to dismiss an appeal, however, is a strategic one which requires "time to evaluate a new opinion, and to confer with the client on appropriate strategy." See American Auto. Man. Assoc. v. Commissioner 31 F.3d 18, 28 (1st Cir. 1994).

B. Plaintiffs Requested Contingent Relief — Permission to Depose the Supervisor Defendants — Is an Attempt to Avoid Their Legitimate Objections Which Have Already Been Sustained in an Identical Matter Now Pending Before the Court.

Plaintiffs application asks, in the alternative, for "leave" to take the depositions of the Supervisor Defendants in order to adequately oppose the Supervisor Defendants' summary judgment motion. In doing so, plaintiff flatly ignores that in a now-pending case in this Court before Judge Cooper which involves precisely the same issues (i.e. punitive damage votes and supervision of the Sheriffs Department). Magistrate Judge Chapman recently refused to permit plaintiffs same counsel from taking the Supervisor Defendants' depositions. See Baum Decl., Exh. "E" (Judge Chapman's January 23, 2002 Order). Plaintiffs contingent request for "leave" to take depositions is nothing more than an attempt to sidestep the Supervisor Defendants' legitimate objections and to secure depositions of which another Judge has already determined they are not entitled to take. Plaintiffs contingent request should be denied.

III. CONCLUSION

For the foregoing reasons, Defendants Michael Antonovich, Yvonne Burke, Donald Knabe, Gloria Molina, and Zev Yaroslavsky hereby request that the Court grant their ex parte Application.

DECLARATION OF ANDREW I. BAUM

I, Andrew I. Baum, declare and state as follows:

1. I am an attorney at law duly licensed to practice before all courts of the State of California and am an Attorney with the law firm of Christensen, Miller, Fink, Jacobs, Glaser, Weil Shapiro, LLP, attorneys of record herein for the Supervisor Defendants herein. The facts set forth herein are true of my own personal knowledge, and if called upon to testify thereto, I could and would competently do so under oath.

2. For brevity's sake, I confirm that the factual statements contained in the Supervisor Defendants' Response to Plaintiffs Opposition to Their ex parte application for an Order Reinstating Their Summary Judgment Motion are true and correct to the best of my knowledge. The factual statements contained therein are also generally supported by this Court's docket and/or my declaration in support of the Supervisor Defendants' motion for summary judgment, to which this Response relates.

3. Attached hereto as Exhibit "A" is a true and correct copy of our firm's October 8, 2001 letter to plaintiffs counsel. Attached hereto as Exhibit "B" is a true and correct copy of Mr. Yagman's October 12, 2001 letter in response.

4. Attached hereto as Exhibit "C" is a true and correct copy of our firm's November 7, 2001 letter to Mr. Yagman and the draft Stipulation that was enclosed therewith.

5. Attached hereto as Exhibit "D" is a true and correct copy of our firm's December 5, 2001 letter to Mr. Yagman.

6. Plaintiffs counsel failed and refused to sign the stipulation which accompanied the letters attached as Exhibits "C" and "D."

7. Attached hereto as Exhibit "E" is a true and correct copy of the January 23, 2002 ruling by Magistrate Judge Chapman in the case of Moore v. Baca, et al. (CV-01-3552 FMC).

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed on February 7, 2002, at Los Angeles, California.

EXHIBIT A LAW OFFICES CHRISTENSEN, MILLER, FINK, JACOBS, GLASER, WEIL SHAPIRO, LLP 2121 AVENUE OF THE STARS EIGHTEENTH FLOOR LOS ANGELES, CALIFORNIA

VIA CERTIFIED MAIL

Stephen Yagman, Esq. Yagman Yagman Reichmann 723 Ocean Front Walk Venice Beach, California 90291 3270

Re: Moreno v. Baca

Dear Steve:

This letter is written to you pursuant to Local Rules 7.4.1 to request a meeting of counsel in order to avoid the necessity of motion practice.

Defendants Michael Antonovich, Yvonne Burke, Donald Knabe, Gloria Molina, and Zev Yaroslavsky (the "Supervisor Defendants") have been sued in these actions on the theory that their votes to indemnify Sheriff's deputies for punitive damage awards was both a constitutional violation and a legal cause of the injuries alleged to have been suffered by the plaintiffs in these cases. As you are aware, there were no votes to indemnify punitive damages awards against Sheriffs deputies at any time between Trevino v. Gates. 99 F.3d 911 (9th Cir. 1996) ("Trevino II") and the date of the incident in this case (I have already provided you with the declaration of the Violet Varona-Lukens, the Clerk of the Board of Supervisors, certifying that there have been no votes during this time period). Given that the issuance of the Trevino II opinion would be the earliest time that there could be "clearly established law" concerning punitive damages indemnification (the other alternatives being the underlying Cunningham decision and the recent decision of the Ninth Circuit in the Navarro case), it is plain that there is no sustainable theory of liability against the Supervisor Defendants in this action.

Additionally, the Supervisor Defendants are entitled to absolute immunity for any legislative actions taken. Thus, even if there were any votes for punitive damage indemnification in the relevant time period, the Supervisor Defendants would be immune. (In that regard, we are cognizant of the ruling in Trevino v. Gates, 23 F.3d 1480 (9th Cir. 1994) ("Trevino I") however, we believe that the Supreme Court's subsequent ruling in Bogan v. Scott Harris. 523 U.S. 44 (1998) requires a re-examination of Trevino I.)

For these reasons, we believe that the action must be dismissed as against the Supervisor Defendants. If you do not do so immediately, we will, as we earlier advised you, seek the Court's intervention.

On a separate note, your initiation of litigation against the Supervisor Defendants based on the theory that their votes to indemnify Sheriffs deputies for punitive damages awards caused constitutional injury was done without any factual or evidentiary support. The votes of the Supervisor Defendants are matters of public record and there can be no basis for suing them for something that even the most cursory investigation would have revealed did not happen. Accordingly, your pleading is violative of Rule 11 of the Federal Rules of Civil Procedure. Since we have not discussed these issues in the context of Rule 11, I request, pursuant to Local Rule 7.4.1. that you contact my office to schedule a meeting or telephone conference to discuss this matter.

Naturally, the foregoing is without prejudice to any of the Supervisor Defendants' rights or remedies, all of which are generally and specifically reserved.

Very truly yours,

_________________ Kevin J. Leichter of CHRISTENSEN, MILLER, FINK, JACOBS, GLASER, WEIL SHAPIRO, LLP

cc: David Lawrence, Esq. (via fax) Louis R. Miller, Esq.

_____________________________________________________________ EXHIBIT B

LAW OFFICES YAGMAN, YAGMAN REICHMANN 723 OCEAN FRONT WALK VENICE BEACH, CALIFORNIA

STEPHEN YAGMAN

October 12, 2001

Kevin Leichter 18th Floor 2121 Avenue of the Stars Los Angeles, CA 90067

Re: King v. Baca and various other cases

Dear Mr. Leichter:

With respect to various cases in which you recently have sent this office certified letters in which you have requested the various plaintiffs whom this office represents consider dismissing your Los Angeles County supervisor defendant clients, please be advised what we told you would apply in the Casares case, in which the same issue arose, applies in all of those cases, to wit: if you send us a stipulation and order to voluntarily dismiss without prejudice and with each party bearing her/his own costs, signed by you, we then shall consider the matter. Unless and until that occurs, we shall not address the matter further in any of the cases.

Very truly yours,

________________ STEPHEN YAGMAN

_____________________________________________________________ EXHIBIT C LAW OFFICES CHRISTENSEN, MILLER, FINK, JACOBS, GLASER, WEIL SHAPIRO, LLP 2121 AVENUE OF THE STARS EIGHTEENTH FLOOR LOS ANGELES, CALIFORNIA

VIA MESSENGER

Re: Bell v. Baca King v. Baca Benas v. Baca Moore v. Baca Berry v. Baca Moreno v. Baca Casares v. Baca Mortimer v. Baca Hart v. Baca

Dear Steve:

This letter is in response to your letter dated October 12, 2001 wherein you assert that you are willing to dismiss the claims against the Supervisor Defendants in each of the above cases. Enclosed please find signed stipulations for voluntary dismissal for each of the above cases.

As to costs, we agree with your request that the dismissals state that each party should bear his or her own litigation costs, so long as the dismissals are signed and returned to us within seven (7) days of this date.

Please return the signed dismissals to me at the above address.

Very truly yours,

_________________ Kevin J. Leichter of CHRISTENSEN, MILLER, FINK, JACOBS, GLASER, WEIL SHAPIRO, LLP

cc: Louis R. Miller, Esq. David Lawrence, Esq. (fax) L. Trevor Grimm, Esq. (fax) Steven Blades, Esq. (fax) Devalls Rutledge, Esq. (fax)

_____________________________________________________________

Louis R. Miller, State Bar No. 054141 Kevin J. Leichter, State Bar No. 154143 Bryan M. Sullivan, State Bar No. 209743 CHRISTENSEN, MILLER, FINK, JACOBS, GLASER, WEIL SHAPIRO, LLP 2121 Avenue of the Stars, 18th Floor Los Angeles, California 90067 Telephone: (310) 553-3000

Devallis Rutledge, State Bar No. 067376 MANNING MARDER KASS, ELLROD, RAMIREZ LLP 2 Park Plaza, Suite 510 Irvine, California 92614 Telephone: (949) 440-6690 Facsimile: (949) 474-6991

Attorneys for Defendants Michael Antonovich, Yvonne Burke, Donald Knabe, Gloria Molina, and Zev Yaroslavsky

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION

R. MORENO, in his individual capacity, and in his capacity as representative of the classes described fully hereinbelow, Plaintiff, v. LE ROY BACA; MICHAEL ANTONOVICH; YVONNE BURKE; DONALD KNABE; GLORIA MOLINA; ZEV YAROSLAVSKY; SHERIFF SEAN D. BANKS # 403862, DEPUTY SHERIFF THOMAS J. GARCIA #412525, and UNKNOWN NAMED DEFENDANTS NOS. 1-5, WHO ARE MEMBERS, or EMPLOYEES, or OFFICERS OF THE LOS ANGELES COUNTY SHERIFF'S DEPARTMENT OR OF LOS ANGELES COUNTY GOVERNMENT, BOTH PAST AND PRESENT, Defendants No. 00-07149 ABC (CWx)

STIPULATION AND ORDER FOR DISMISSAL WITHOUT PREJUDICE OF THE SUPERVISOR DEFENDANTS

Pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure, Plaintiff R. Moreno ("Plaintiff") and Defendants Michael Antonovich, Yvonne Burke, Donald Knabe, Gloria Molina, and Zev Yaroslavsky ("Supervisor Defendants") by and through their respective counsel, hereby stipulate to the dismissal without prejudice of the above-captioned action as to the Supervisor Defendants, with each party bearing their own costs.

Dated: November __, 2001 Louis R. Miller Kevin J. Leichter Bryan M. Sullivan

CHRISTENSEN, MILLER, FINK, JACOBS, GLASER, WEIL SHAPIRO, LLP

By: _____________________ (SIGNED) KEVIN J. LEICHTER

Attorneys for Defendants Michael Antonovich, Yvonne Burke, Donald Knabe, Gloria Molina, and Zev Yaroslavsky

Dated: November __, 2001 Devallis Rutledge MANNING MARDER, KASS, ELLROD RAMIREZ

By: _____________________ DEVALLIS RUTLEDGE Attorney for Defendant Baca

Dated: November __, 2001 Stephen Yagman Yagman Yagman Reichmann

By: _____________________ STEPHEN YAGMAN Attorney for Plaintiff R. Moreno

IT IS SO ORDERED.

Dated:___________ __________________________________ The Honorable Audrey B. Collins United States District Court Judge

_____________________________________________________________ EXHIBIT D LAW OFFICES CHRISTENSEN, MILLER, FINK, JACOBS, GLASER, WEIL SHAPIRO, LLP 2121 AVENUE OF THE STARS EIGHTEENTH FLOOR LOS ANGELES, CALIFORNIA December 5, 2001

VIA U.S. MAIL

Stephen Yagman, Esq. Yagman Yagman Reichmann 723 Ocean Front Walk Venice, California 90291-3270

Re: County Cases

Dear Mr. Yagman:

This is in response to your letter of November 19, 2001 which arrived in our office on Friday November 30, 2001.

With regard to addressing you by your first name, please be advised that I meant no offense.

With regard to the Rule 41(a) stipulations for dismissal that you requested, we again enclose copies of dismissals in the various cases.

Very truly yours,

_________________ Kevin J. Leichter of CHRISTENSEN, MILLER, FINK, JACOBS, GLASER, WEIL SHAPIRO, LLP

_____________________________________________________________

Louis R. Miller, State Bar No. 054141 Kevin J. Leichter, State Bar No. 154143 Bryan M. Sullivan, State Bar No. 209743 CHRISTENSEN, MILLER, FINK, JACOBS, GLASER, WEIL SHAPIRO, LLP 2121 Avenue of the Stars, 18th Floor Los Angeles, California 90067 Telephone: (310) 553-3000

Devallis Rutledge, State Bar No. 067376 MANNING MARDER KASS, ELLROD, RAMIREZ LLP 2 Park Plaza, Suite 510 Irvine, California 92614 Telephone: (949) 440-6690 Facsimile: (949) 474-6991

Attorneys for Defendants Michael Antonovich, Yvonne Burke, Donald Knabe, Gloria Molina, and Zev Yaroslavsky

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Western Division

R. MORENO, in his individual capacity, and in his capacity as representative of the classes described fully hereinbelow, Plaintiff, v. LE ROY BACA; MICHAEL ANTONOVICH; YVONNE BURKE; DONALD KNABE; GLORIA MOLINA; ZEV YAROSLAVSKY; SHERIFF SEAN D. BANKS # 403862, DEPUTY SHERIFF THOMAS J. GARCIA #412525, and UNKNOWN NAMED DEFENDANTS NOS. 1-5, WHO ARE MEMBERS, or EMPLOYEES, or OFFICERS OF THE LOS ANGELES COUNTY SHERIFF'S DEPARTMENT OR OF LOS ANGELES COUNTY GOVERNMENT, BOTH PAST AND PRESENT, Defendants No. 00-07149 ABC (CWx)

STIPULATION AND ORDER FOR DISMISSAL WITHOUT PREJUDICE OF THE SUPERVISOR DEFENDANTS

Pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure, Plaintiff R. Moreno ("Plaintiff") and Defendants Michael Antonovich, Yvonne Burke, Donald Knabe, Gloria Molina, and Zev Yaroslavsky ("Supervisor Defendants") by and through their respective counsel, hereby stipulate to the dismissal without prejudice of the above-captioned action as to the Supervisor Defendants, with each party bearing their own costs.

Dated: November __, 2001 Louis R. Miller Kevin J. Leichter Bryan M. Sullivan

CHRISTENSEN, MILLER, FINK, JACOBS, GLASER, WEIL SHAPIRO, LLP

By: _____________________ (SIGNED) KEVIN J. LEICHTER

Attorneys for Defendants Michael Antonovich, Yvonne Burke, Donald Knabe, Gloria Molina, and Zev Yaroslavsky

Dated: November __, 2001 Devallis Rutledge MANNING MARDER, KASS, ELLROD RAMIREZ

By: _____________________ DEVALLIS RUTLEDGE Attorney for Defendant Baca

Dated: November __, 2001 Stephen Yagman Yagman Yagman Reichmann

By: _____________________ STEPHEN YAGMAN Attorney for Plaintiff R. Moreno

IT IS SO ORDERED.

Dated:___________ __________________________________ The Honorable Audrey B. Collins United States District Court Judge

_____________________________________________________________ EXHIBIT E UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES-GENERAL Case No. CV 01-3552-FMC (RCx) Date: January 23, 2002

Title: L.B. Moore, et al. vs. Le Roy Baca, et al. ============================================================= DOCKET ENTRY

============================================================= HON. ROSALYN M. CHAPMAN, UNITED STATES MAGISTRATE JUDGE

Debra Taylor-Spears Deputy Clerk Court Reporter

ATTORNEYS PRESENT ATTORNEYS PRESENT ATTORNEYS PRESENT FOR PLAINTIFFS: FOR SUPERVISOR DEFENDANTS: FOR DEFENDANT BACA:

Stephen Yagman Andrew I. Baum Paul B. Beach

PROCEEDINGS: PLAINTIFFS' MOTION TO COMPEL SUPERVISOR DEFENDANTS' DEPOSITIONS; AND PLAINTIFFS' MOTION TO COMPEL DEFENDANT BACA'S DEPOSITION

On December 28, 2001, plaintiffs L.B. Moore, et al., filed a notice of motion and motion to compel the depositions of defendants Michael D. Antonovich, Yvonne B. Burke, Don Knabe, Gloria Molina and Zev Yaroslavsky (collectively "the supervisor defendants"), with a joint stipulation and the declarations of Stephen Yagman and Andrew I. Baum, and a notice of motion and motion to compel the deposition of defendant Le Roy Baca, with a joint stipulation and the declarations of Stephen Yagman and Paul B. Beach. On January 2, 2002, defendant Baca filed a supplemental memorandum and the supplemental declaration of Paul B. Beach, and on January 7, 2002, the supervisor defendants filed a supplemental memorandum and the supplemental declaration of Andrew I. Baum.

This matter came on regularly for hearing before Magistrate Judge Rosalyn M. Chapman on January 23, 2002. Plaintiffs were represented by Stephen Yagman, attorney-at-law, the supervisor defendants were represented by Andrew I. Baum, attorney-at-law, and defendant Baca was represented by Paul B. Beach, attorney-at-law.

BACKGROUND I

On April 18, 2001, approximately 40 individual plaintiffs filed a civil rights complaint against the supervisor defendants and defendant Baca, in their official and individual capacities, alleging plaintiffs were deprived of their Eighth Amendment right to be free from cruel and unusual punishment and their Fourteenth Amendment rights to due process and equal protection of the law during a race riot at the Los Angeles County Jail on April 24-25, 2000. Complaint at 1-6. The claims against the supervisor defendants are based on an alleged policy of the supervisor defendants to indemnify Los Angeles County deputy sheriffs when punitive damages are awarded against those deputy sheriffs for their unconstitutional actions, as well the alleged failure to properly investigate and respond to police misconduct. Complaint, ¶¶ 6-19. The claims against defendant Baca are based on allegedly unconstitutional policies or customs of the Sheriffs Department, as well as defendant Baca's alleged failure to properly train, supervise, monitor, or discipline Sheriff's Department employees. Id., The defendants have answered the complaint.

On September 28, 2001, District Judge Florence-Marie Cooper denied without prejudice the supervisor defendants' motion for summary judgment based on absolute and qualified immunity, noting plaintiffs were entitled to discovery under Rule 56(f) before the supervisor defendants' qualified immunity claims could be finally determined. Specifically, Judge Cooper held "plaintiffs must be permitted to conduct discovery into the actions taken by the county supervisors, after November 1, 1996, with respect to awards of punitive damages against police officers."

II

On October 13, 2001, plaintiffs served their first set of interrogatories on the supervisor defendants, seeking "each instance or occasion from November 1, 1996 to [the] present in which any Los Angeles County supervisor has voted to indemnify, bond on appeal, or enter into a settlement in any case against a deputy sheriff in which a jury has made an award of punitive damages," and requested the materials each supervisor reviewed before voting, the reasons for the vote, what the vote was, details about the underlying case, and "[t]he name[s] of all persons on whose advice [the supervisor] relied." Baum Decl., ¶ 8, Exh. C. The plaintiffs' first set of interrogatories also sought information regarding any actions the supervisor defendants have taken to investigate the Sheriffs Department, to create a civilian review board, to insure the Sheriffs Department is faithfully performing its duties, and to provide proper supervision to the Sheriffs Department. Id. On December 13, 2001, each of the supervisor defendants provided a verified response to the interrogatories, stating:

Since November 1, 1996 to the present, there have been no votes to indemnify, bond on appeal, or enter into a settlement in any case against a deputy sheriff in which a jury has made an award of punitive damages.

Baum Decl., ¶ 15, Exh. H. Each of the supervisor defendants also responded to the interrogatories about actions taken to Investigate or supervise the Sheriffs Department with lengthy and detailed answers. Id.

On December 2, 2001, plaintiffs served their second set of interrogatories on the supervisor defendants, seeking information regarding "each instance or occasion on which any supervisor defendant participated in or created or exercised any civilian authority with respect to the Los Angeles County Sheriffs Department," as well as "each instance or occasion on which any supervisor defendant participated in or did anything to insure that the Sheriffs Department is faithfully performing its duties," and "[w]hat things, if any, [each] supervisor [has] done or participated in to provide supervision over the Sheriffs Department."^1b Baum Decl., ¶ 10, Exh. E. The Court has not been provided with the supervisor defendants' objections or responses to these interrogatories.

1b Some of these interrogatories appear to duplicate the previous interrogatories in the first set.

On November 29, 2001, plaintiffs' counsel sent defendants' counsel a letter stating plaintiffs' desire to depose the supervisor defendants and defendant Baca. Baum Decl., ¶ 9, Exh. D. On December 5, 2001, counsel for defendants objected to the proposed depositions. Id., ¶ 11, Exh. G. On December 11, 2001, counsel for the parties met and conferred, but were unable to resolve this dispute. Id., ¶ 14.

DISCUSSION III

As a preliminary matter, this Court is concerned about the procedural posture of plaintiffs' motions. Specifically, it does not appear that plaintiffs have served deposition notices on any of the defendants whom they now seek to compel to attend (unnoticed) depositions; thus, plaintiffs appear to be seeking an improper advisory opinion from the Court. See Hall v. Beals, 396 u.s. 45, 48, 90 S.Ct. 200, 201-02, 24 L.Ed. 214 (1969) (per curiam) (instructing federal courts to avoid advisory opinions on abstract propositions of law"); Seven Words LLC v. Network Solutions, 260 F.3d 1089, 1099 (9th Cir. 2001) (same). Yet, defendants have not raised this defense to plaintiffs' motions. Therefore, in light of the fast approaching discovery cut-off date, and since plaintiffs have made clear their intention to schedule the contested depositions If granted permission to do so, this Court will address the merits of plaintiffs' motions, rather than require the parties to again raise the issues following service of formal deposition notices.^2b Cf. International Board of Teamsters v. Eastern Conference of Teamsters, 162 F.R.D. 25, 28 (S.D.N.Y. 1995); In re Airport Car Rental Antitrust Litigation, 474 F. Supp. 1072, 1109 n. 41 (N.D. Cal. 1979); See also Dornan v. Sanchez, 978 F. Supp. 1315, 1318-19 (C.D. Cal. 1997) (withdrawn subpoena not moot when party withdrawing subpoena could seek to revive it).

2b Nevertheless, given defendant Baca's cooperation in the procedural posture of these motions, the Court will not consider defendant Baca's request for sanctions.

IV

Rule 26(b)(1), as recently amended, permits discovery in civil actions of any matter, not privileged, that is relevant to the claim or defense of any party. . . ." Generally, the purpose of discovery is to remove surprise from trial preparation so the parties can obtain evidence necessary to evaluate and resolve their dispute. Oakes v. Halvorsen Marine Ltd., 179 F.R.D. 281, 283 (C.D. Cal. 1998). Toward this end, Rule 26(b) is liberally interpreted to permit wide-ranging discovery of information even though the information may not be admissible at the trial. Jones v. Commander, Kansas Army Ammunitions Plant, 147 F.R.D. 248, 250 (D. Kan. 1993). However, like federal litigation generally, all discovery is subject to Rule 1, which directs that the rules "shall be construed and administered to secure the just, speedy, and inexpensive determination of every action." Fed.R.Civ.P. 1.

V

High ranking government officials, such as "[h]eads of government[al] agencies[,] are not normally subject to deposition. . . ." Kyle Engineering Co. v. Kleppe, 600 F.2d 226, 231 (9th Cir. 1979); In re United States, 197 F.3d 310, 313 (8th Cir. 1999); Stagman v. Ryan, 176 F.3d 986, 994-95 (7th Cir.), cert. denied, 528 U.S. 986 (1999). The rationale behind this public policy is clear: "High ranking government officials have greater duties and time constraints than other witnesses," In re United States, 985 F.2d 510, 512 (11th Cir.) (per curiam), cert. denied, 510 U.S. 989 (1993); In re United States, 197 F.3d at 313-14, and "such officials must be allowed the freedom to perform their tasks without the constant interference of the discovery process." Warzon v. Drew, 155 F.R.D. 183, 185 (E.D. Wis. 1994). As one trial court has noted:

[High ranking government officials] routinely make administrative decisions in the exercise of their discretionary powers, which may affect many. Lawsuits often follow. Should the [high ranking official) be subject to deposition in every resulting case and be repeatedly required to explain the various mental steps he took to reach his decision, the decision may be his last.

Sykes v. Brown, 90 F.R.D. 77, 78 (E.D. Pa. 1981); see also Union Savings Bank of Patchogue, N.Y. v. Saxon, 209 F. Supp. 319, 319-20 (D.C. D.C. 1962) ("[A]n official's time and the exigencies of his everyday business would be severely impeded if every plaintiff filing a complaint against an agency head . . . were allowed to take his oral deposition. Such procedure would be contrary to the public interest, plus the fact that ordinarily the head of an agency has little or no knowledge of the facts in the case.").

For these reasons, "exceptional circumstances must exist before the involuntary depositions of high [ranking government] officials are permitted." In re Federal Deposit Ins. Corp., 58 F.3d 1055, 1060 (5th Cir. 1995) (internal quotation marks, citations omitted); In re United States, 197 F.3d at 313-14; Simplex Time Recorder Co. v. Secretary of Labor, 766 F.2d 575, 587 (D.C. Cir. 1985). Moreover, if the information sought is available from other sources, or through less burdensome means, the involuntary deposition of a high ranking government official will not be permitted. In re United States, 197 F.3d at 314; Simplex Time Recorder Co., 766 F.2d at 587.

There is no doubt that the supervisor defendants, who constitute the Los Angeles County Board of Supervisors, and defendant Baca, the head of the Los Angeles County Sheriffs Department, are high ranking government officials. According to the Los Angeles County website, the County has an annual budget of $16.2 billion and, with a population of approximately 9.8 million, is "larger in population than 42 states In the nation." (http://www.co.la.ca.us). See, e.g., Olivieri v. Rodriguez, 122 F.3d 406, 409-10 (7th Cir. 1997) (affirming district court's finding that "the superintendent of the Chicago police is a busy official who should not taken away from his work to spend hours or days answering lawyers' questions unless there is a real need"), cert. denied, 522 U.S. 1110 (1998). Thus, this Court will apply the public policy discussed above to plaintiffs' motions to compel the depositions of the supervisor defendants and defendant Baca.

Here, plaintiffs contend the depositions of each of the supervisor defendants and defendant Baca are necessary so they can "test the facts, veracity and trustworthiness" of the defendants concerning whether any votes have been taken since November 1, 1996, to indemnify, bond on appeal, or settle any case against a deputy sheriff in which a jury has awarded punitive damages. Yet, in responding to plaintiffs' first set of interrogatories, the supervisor defendants have already answered this question under oath, and plaintiffs have proffered no evidence to show these responses are untrue. Plaintiffs' insinuation that the supervisor defendants' verified interrogatory responses, provided under penalty of perjury, are in some manner not credible is insufficient to abrogate the public policy protecting high ranking government officials. See In re United States, 197 F.3d at 314 ("Allegations that a high government official acted improperly are insufficient to justify the subpoena of that official unless the party seeking discovery provides compelling evidence of improper behavior and can show that he is entitled to relief as a result."); Bituminous Materials, Inc. v. Rice County, Minn., 126 F.3d 1068, 1071 n. 2 (8th Cir. 1997) (district court did not abuse discretion in barring discovery into County Commissioners' motives for actions since plaintiffs "unsupported allegations of personal animus did not warrant burdensome depositions of these government officials"). Furthermore, since plaintiffs do not explain why they should be permitted to again ask at deposition questions already answered by the supervisor defendants in response to interrogatories, they proffer no basis to depose the supervisor defendants. In re United States, 197 F.3d at 314; Simplex Time Recorder Co., 766 F.2d at 587. Similarly, since the supervisor defendants have already provided plaintiffs with verified responses stating no punitive damage votes were taken during the relevant time period, defendant Baca could not have had any role in securing indemnification for members of the Sheriff's Department against whom punitive damages have been awarded, and there is no reason to depose defendant Baca to "test the facts, veracity and trustworthiness" of the supervisor defendants or himself.

For the same reason, the plaintiffs' contention that the depositions of the supervisor defendants should be compelled so they can inquire into all the actions each supervisor has taken to insure the Sheriff's Department is faithfully performing its duties is also to no avail. The first set of interrogatories to the supervisor defendants addressed these matters, and the supervisor defendants provided responses under oath. Further, plaintiffs have "not suggested any information in the possession of [the supervisor defendants] that [they] could not obtain from [publicly available material]." Simplex Time Recorder Co., 766 F.2d at 587; see, e.g., Cal. Gov't Code § 25104 (stating "[t]he books, records, and accounts of the board [of supervisors] shall be kept in the custody of the clerk and available for public Inspection"). For instance, the Los Angeles County Board of Supervisors' website includes access to their proceedings for the time period in question, and such proceedings "indicate every action, including the vote, that is taken by the Board during that meeting." See (http://bos.co.la.ca.us/Categories/ Sop/SOPHome.htm).

Finally, Rule 1 demands that discovery he conducted inexpensively, if possible. This means, among other things, that discovery not be duplicative or unnecessarily time consuming. See Fed.R.Civ.P. 26 (b)(2)(i) (requiring court to limit use of discovery methods otherwise permitted if "the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive"). Here, plaintiffs certainly have less burdensome methods of conducting discovery available to them: Interrogatories or written depositions under Rule 31 may be used to ascertain, for example, whether defendant Baca has, during the relevant time period, discussed with the supervisor defendants settling, indemnifying, or bonding any punitive damage award against a member of the Sheriffs Department, and these discovery devices should first be used before depositions. In re United States, 197 F.3d at 314; Simplex Time Recorder Co., 766 F.2d at 587.

Other arguments plaintiffs offer to support their motion to depose defendant Baca are also unpersuasive, if not downright odd. See, Motion at 3:14-4:22. For example, the plaintiffs' reliance on Larez v. City of Los Angeles, 946 F.2d 630, 645-46 (9th Cir. 1991) is confusing. In that case, the appellate court discussed the various bases for holding a police chief liable in either his official or individual capacity for violating an individual's civil rights. However, plaintiffs' mere allegation that defendant Baca may in some way be liable to them because he is as head of the Sheriffs Department is insufficient to meet plaintiffs' burden to show the necessity to depose defendant Baca. Rather, before this Court will allow defendant Baca's deposition, plaintiffs must make some showing that defendant Baca has unique and personal knowledge of facts that cannot be obtained elsewhere. In re United States, 197 F.3d at 314; Alexander v. Federal Bureau of Investigation, 186 F.R.D. 1, 4 (D.C. D.C. 1998); Smith v. State of Ga. Dep't of Children Youth Servs., 179 F.R.D. 644, 645-46 (N.D. Ga. 1998). The plaintiffs have not done this.

For all these reasons, plaintiffs' motions should be denied without prejudice.

ORDER

1. Plaintiffs' motion to compel the depositions of defendants Michael D. Antonovich, Yvonne B. Burke, Don Knabe, Gloria Molina and Zev Yaroslavksy is denied without prejudice; and

2. Plaintiffs' motion to compel the deposition of defendant Lee Baca is denied without prejudice.

Service List:

Joseph Reichmann, Esq. Louis R. Miller, Esq. Yagman Yagman Reichmann Kevin J. Leichter, Esq. 723 Ocean Front Walk Bryan M. Sullivan, Esq. Venice, CA 90291-3270 Andrew I. Baum, Esq. Christensen, Miller, Fink, David D. Lawrence, Esq. Jacobs, Glaser, Weil Shapiro Paul B. Beach, Esq. 2121 Avenue of the Stars Franscell Strickland Roberts 18th Floor Lawrence Los Angeles, CA 90067 225 5. Lake Avenue Penthouse Suite Pasadena, CA 91101-3005

Honorable Florence-Marie Cooper

_____________________________________________________________ UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES — GENERAL

Case No.: CV 00-07149 ABC (CWx) Date: July 6, 2001

Title: R. Moreno v. Le Roy Baca, et al.

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PRESENT: Hon. Audrey B. Collins, United States District Judge

Daphne Alex Not Present Deputy Clerk Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFF: ATTORNEYS PRESENT FOR DEFENDANT: None None

PROCEEDINGS: DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS PREMISED ON COLLATERAL ESTOPPEL (In Chambers)

Complaining that his January 21, 2000 arrest, and subsequent prosecution (resulting in acquittal), for possession of illicit drugs was illegally lacking in probable cause, Plaintiff filed an initial Complaint on June 30, 2000 against those deputies of the Los Angeles County Sheriff's Department ("LASD") involved in his arrest (Deputy Banks and Deputy Garcia), against Sheriff Baca, as well as against Los Angeles County Supervisors Antonovich, Burke, Knabe, Molina, and Yaroslavsky. See Complaint ¶ 4. On September 11, 2000, Plaintiff filed a First Amended Complaint ("FAC").

Defendants now seek a judgment on the pleadings. The Court finds the motion appropriate for decision without oral argument. See Fed.R.Civ.Pro. 78; Local Rule 7.11. The noticed hearing date of July 9, 2001 is therefore VACATED. Defendants argue that Plaintiff is collaterally estopped from challenging the probable cause for his arrest, because this issue was previously litigated to a conclusion in the February 8, 2000 preliminary hearing that preceded his state criminal prosecution. Plaintiff has opposed, though with arguments which largely miss the mark. Nonetheless, the Court finds that it cannot determine the impact of collateral estoppel on Plaintiff's claim(s) without relying on evidence that is outside the pleadings. Therefore, the Court DENIES the motion without prejudice to future re-presentation of these same issues.

I. BACKGROUND

Both Plaintiff and Defendants reference, and rely on, facts and evidence outside of the pleadings. However, because neither party has presented sufficient evidence or argument to enable the Court to convert the instant motion to one for summary judgment under Rule 56, for its present purposes the Court relies solely on facts which are revealed by the pleadings themselves. Where additional facts appear undisputed, the Court may include these to the extent they help to flesh out the factual and procedural context for the instant action. They form no part of the basis for the Court's decision(s) on the instant Motion, however.

Plaintiff alleges that he was illegally stopped and arrested by Deputy Banks and Deputy Garcia, "without reasonable suspicion or probable cause," on or about January 21, 2000. See FAC ¶ 16. He further claims he was "subjected to a planting of evidence," and/or "subjected to false parole violation and criminal charges" based thereon. See id. Finally, he claims that he was illegally incarcerated and "forced to defend himself against false criminal charges made against him by Banks, Garcia, and others," and also was "falsely accused of parole violation charges" by these same officers. See id. ¶¶ 17-18. Plaintiff was allegedly acquitted by a jury of the criminal charges resulting from his arrest; it is not clear what, if anything, came of the parole violation(s). See id. ¶ 17; see also Exhibit 3 to Request for Judicial Notice filed by Defendants on May 14, 2001 ("State Criminal Docket").

On the basis of these factual allegations, Plaintiff seeks a damages recovery against all Defendants under 42 U.S.C. § 1983, as well as declaratory and injunctive relief. See FAC ¶¶ 56-73. Plaintiff further alleges claim(s) under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq. against all Defendants See FAC ¶¶ 74-88. However, Plaintiff's RICO claims were dismissed, in an Order dated October 13, 2000.

Based on the additional material(s) provided by Defendants, it appears that Plaintiff's January 21, 2000 arrest was followed by his arraignment on January 25, 2000, and a preliminary hearing conducted on February 8, 2000 by Commissioner/Judge David Sotelo. See Exhibit 1 to Request for Judicial Notice ("Criminal Docket Up To And Including Preliminary Hearing"). At the February 8, 2000 preliminary hearing, the evidence was determined to be sufficient to bind Plaintiff (then defendant) over for trial. See id. The trial commenced on April 24, 2000. On April 26, 2000, Plaintiff was acquitted by the trial jury. See State Criminal Docket.^1c

1c The Court notes these proceedings for background purposes only. The Court DENIES Defendants' Request for Judicial Notice.

Following and surrounding Plaintiff's initial Complaint and the subsequent filing of the substantially-similar FAC, most or all of the named Defendants moved to dismiss Plaintiff's claims on several different grounds. The result was the above-mentioned dismissal of Plaintiff's RICO claim(s). Defendants Banks, Garcia and Baca subsequently filed their respective Answers to the FAC.

Defendants Banks, Garcia, Baca, Yaroslavsky, Antonovich, and Burke ("Defendants") have now, on May 14, 2001, filed the instant Motion for Judgment on the Pleadings (the "Motion").^2c The Motion was initially noticed for a hearing on June 11, 2001, but per an ex parte request by Plaintiff's counsel the date of the hearing was continued to its current setting on July 9, 2001, Plaintiff filed an Opposition (the "Opposition") on June 4, 2001. On July 2, 2001, Defendants filed their Reply (the "Reply").

2c The Court notes that a Rule 12(c) motion, for judgment on the pleadings, is only actually proper as to those Defendants who have answered the operative complaint. In this case, that would only describe Defendants Banks, Garcia, and Baca. However, also represented on the instant Motion are three other Defendants who have not yet answered: Yaroslavsky, Antonovich, and Burke. Thus, these Defendants are not yet entitled to move for a judgment on the pleadings, and must instead seek dismissal per Rule 12(b)(6). Given that the standards under Rule 12(c) and Rule 12(b)(6) are substantially identical, however, the Court will simply treat the instant Motion as a single motion for judgment on the pleadings.

II. DISCUSSION

A. Standard for Judgment on the Pleadings/Collateral Estoppel

A Rule 12(c) motion, like a Rule 12(b)(6) motion, tests the legal sufficiency of the claims asserted in the complaint.^3c In fact, the standard for judgment on the pleadings is essentially the same as applies under Rule 12(b)(6). See Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). A dismissal is proper where there is a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). "A judgment on the pleadings [may be] granted when, taking all the allegations in the pleadings as true, the moving party is entitled to judgment as a matter of law." Nelson v. City of Irvine, 143 F.3d 1196, 1200 (9th Cir. 1998).

3c "After the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment on the pleadings." Fed.R.Civ.Pro. 12(c). A motion under Rule 12(c) is the equivalent of a Rule 12(b)(6) motion, only later in time.

The doctrine or collateral estoppel, or issue preclusion,^4c prevents re-litigation of legal and/or factual issues necessarily considered and determined in a prior legal proceeding between the same parties, or their privies. See, e.g., Allen v. McCurry, 449 U.S. 90, 94 (1980); Teitelbaum Furs, Inc. v. Dominion Insurance Co., Ltd., 58 Cal.2d 601, 604 (1962); McGowan v. City of San Diego, 208 Cal.App.3d 890, 895 (1989). The collateral estoppel doctrine applies with equal force to claims brought under Section 1983. See Allen, 449 U.S. at 105. Whether collateral estoppel applies in a given case is primarily a legal question. See Ayers v. City of Richmond, 895 F.2d 1267, 1270 (9th Cir. 1990) .State law governs the application of collateral estoppel to issues that were decided in a prior state court proceeding. See id., Allen, 449 U.S. at 96 (state law applicable for prior state judgments).

4c Res judicata is often used to refer to a general "species" of defense including both claim preclusion and issue preclusion. It is most useful, however, to equate res judicata solely with claim preclusion, and collateral estoppel with issue preclusion. See, e.g., Americana Fabrics, Inc. v. L L Textiles, Inc., 754 F.2d 1524, 1529 (9th Cir. 1985); Ross v. International Broth. of Elec. Workers, 634 F.2d 453, 457 n. 6 (9th Cir. 1980); 18 Wright, Miller Cooper, Federal Practice and Procedure § 4402 (1981) This Motion argues solely collateral estoppel/issue preclusion.

Under California law, collateral estoppel is applied where: (1) the issue sought to be precluded is identical to that which was decided in a prior proceeding; (2) that issue was actually litigated and necessarily decided in that proceeding; (3) there was a final judgment on the merits; and (4) that party against whom collateral estoppel is asserted was a party or in privity with a party to the prior proceeding. See McCutchen v. City of Montclair, 73 Cal.App.4th 1138, 1145 (1999); see also Heath v. Cast, 813 F.2d 254, 258 (9th Cir. 1987). In California, a prior criminal proceeding may have collateral estoppel implications for a subsequent civil suit. See, e.g., McGowan, 208 Cal.App.3d at 895; McCutchen, 73 Cal.App.4th at 1144; Heath, 813 F.2d at 258.

It is now also clear, under California law, that under the right set of circumstances, issues necessarily determined during a preliminary hearing in a criminal case (pursuant to California Penal Code § 871) or on a motion to suppress per California Penal Code § 1538.5 may be precluded from re-litigation in a subsequent civil suit. See Teitelbaum, 58 Cal.2d at 606-07; McCutchen, 73 Cal.App.4th at 1145; McGowan, 208 Cal.App.3d at 896; Morley v. Walker, 175 F.3d 756, 760-61 (9th Cir. 1999); see also Haupt v. Dillard, 17 F.3d 285, 288-89 (9th Cir. 1994) (applying Nevada law); De Anda v. City of Long Beach, 7 F.3d 1418, 1422 (9th Cir. 1993); Ayers, 895 F.2d at 1270-71; Heath, 813 F.2d at 258-59.

Under California law, a finding in a preliminary hearing of probable cause to hold a criminal defendant over for trial is a final judgment on the merits for collateral estoppel purposes; an accused can immediately appeal the probable cause determination by filing a motion to set aside (Cal. Pen. Code § 995) and obtain review of the decision on the motion to set aside by filing for a writ (Cal. Pen. Code § 999a). Further, probable cause cannot be litigated further because it provides no defense to an accused at trial. See McCutchen, 73 Cal.App.4th at 1146; Morley, 175 F.3d at 760-61; Haupt, 17 F.3d at 288-89.^5c Thus, issues necessarily determined in that hearing may not be subsequently re-litigated.

5c Plaintiff spends a great deal of energy in his Opposition attempting to distinguish Haupt on the ground that it was decided under Nevada rather than California law. See Opposition at 5-8. Plaintiff claims that Nevada does not have the same prerequisite of a "final judgment" before collateral estoppel may be applied, and takes Defendants to task for relying on the Ninth Circuit's application of Nevada law. Plaintiff claims that Defendants have not cited, and Plaintiff has not found, any case clearly applying California law to allow a probable cause determination in a state court preliminary hearing to have a collateral estoppel effect in a subsequent case challenging the legality of an arrest. See id. Plaintiff's protest is ill-considered on several grounds. First, Nevada and California law are identical on all of the elements of collateral estoppel, including the degree of "finality" required. See LaForge v. State University and Community College System of Nevada, 997 P.2d 130, 133 (Nev. 2000); Haupt, 17 F.3d at 288; see also McCutchen, 73 Cal.App.4th at 1143-45. There is therefore no ground for distinguishing Haupt on this basis. Second, Haupt has been explicitly applied to California law by McCutchen, which relies on Haupt and which may be found by simply shepardizing the Haunt opinion. Though it is true that McCutchen was not cited in Defendants' Motion (a curiosity not explained in the Reply, where it is cited), Plaintiff's counsel's anticipatory argument that he should be given a further opportunity to brief further authority cited by Defendants in Reply, authority which he should have been equally able to find on his own, is not compelling. This Court found McCutchen on its own, without much effort or any help from Defendants. Plaintiff's counsel is certainly expected to be able to do the same. Third, Haupt, and McCutchen, are wholly in line with pre-existing precedent applying California law to find that preliminary hearing findings or decisions on motions to suppress may preclude re-litigation of issues in later civil cases. See De Anda, 7 F.3d at 1422; Ayers, 895 F.2d at 1270-71; Teitelbaum, 58 Cal.2d at 606-07. Nonetheless, because the Court finds that it cannot decide this issue at this stage, Plaintiff's counsel will be afforded a further opportunity to "brief" issues raised by Haupt and its progeny, for a future summary judgment motion.

As the Ninth circuit concluded in Haupt v. Dillard (applying Nevada law), a determination of probable cause sufficient to bind a criminal defendant over for trial made at a preliminary hearing may estop the defendant from later seeking damages under Section 1983 by alleging his arrest was not supported by probable cause. See Haupt, 17 F.3d at 288-90. The court found that a finding of probable cause was the purpose of a preliminary hearing. "[T]he probable cause determination was necessary to the judgment; the sole purpose of the preliminary hearing was to determine whether Haupt should have been bound over for trial. But for the probable cause determination, there would have been no trial and no judgment of acquittal." Id. at 289 (emphasis in original).

The Haupt court concluded that in most instances the issues necessarily determined in a preliminary hearing, and those which underscore a Section 1983 claim premised on unlawful arrest, will be the same. See id. at 289-90. On that basis, the court found that Haupt was estopped from bringing his Section 1983 claim:

[T]he issue determined at his preliminary hearing is identical to the issue whether there was probable cause to arrest him; both involved a determination that the evidence available and known to the officers at the time of his arrest supported a reasonable belief that Haupt committed the offenses charged.

Id. at 289 (citations omitted). The court did identify factual circumstances that would limit or eliminate collateral estoppel effects of a prior criminal preliminary hearing: (1) where there were facts presented to the judicial officer presiding over the preliminary hearing which were additional to (or different from) those available to the officers at the time they made an arrest; or (2) where tactical considerations prevented a litigant/prior criminal defendant from vigorously pursuing the issue of probable cause during the prior criminal prosecution/preliminary hearing. See id. at 289. Otherwise, a prior preliminary hearing must be presumed to have a preclusive effect on an illegal arrest claim.

The Ninth Circuit has recently reaffirmed Haupt, and the two factual "exceptions" thereto, in Morley, 175 F.3d at 761. Haupt, and the exceptions thereto, have also been explicitly adopted for California preliminary hearings by McCutchen, 73 Cal.App.4th at 1145-48. The McCutchen decision also identified a third factual "exception" to the Haupt doctrine: (3) where a plaintiff alleges that the arresting officer lied or fabricated evidence presented at the preliminary hearing. See McCutchen, 73 Cal.App.4th at 1147 ("When the officer misrepresents the nature of the evidence supporting probable cause and that issue is not raised at the preliminary hearing, a finding of probable cause . . . would not preclude relitigation of . . . integrity of the evidence.") . In the absence of one of these three exceptions, however, California plaintiffs may not "re-litigate" the "issue" of probable cause.

B. Application to the Facts of This Case/These Cases

Defendants argue that under the standards elucidated by the Ninth Circuit in Haupt v. Dillard, as discussed above, Plaintiff should be estopped from challenging the propriety of his arrest. They argue that because the sufficiency of probable cause for his arrest was necessarily determined in the preliminary hearing held on February 8, 2000, after which Plaintiff was bound over for his subsequent criminal trial, Plaintiff may not indirectly challenge and re-litigate the question of probable cause through this case. See Motion at 5-9. They claim that this Court should not and may not disturb factual findings made by a state judicial officer in a preliminary hearing. See Motion at 10-11.^6c Defendants argue, furthermore, that Plaintiff waived any right he may have enjoyed to challenge the prior determination of probable cause because he failed to file a motion to set aside the information pursuant to California Penal Code § 995, or a prerogative writ.^7c See Motion at 11-13. Finally, Defendants contend that Plaintiff is required to meet a "heightened pleading standard" to the extent that his claims are premised on judicial deception. See Motion at 13-15.^8c Only the collateral estoppel argument is contested in Plaintiff's Opposition (along with the Heck argument), and only this alleged basis for relief is re-argued by Defendants in their Reply.

6c It is not clear whether this is an argument separate and apart from the collateral estoppel argument, or is simply further ground for the application of collateral estoppel. It appears it may be offered to supplement Defendants' argument under Heck (see note 8 below). In any event, the "interests" identified by these Defendants as supporting deference to the state court's decision on probable cause are the same principles which are served by the doctrine of collateral estoppel. Accordingly, the Court does not separately consider Defendants' "policy-based" argument(s).

7c Again, Defendants rely on inapposite authority. See, e.g., People v. Harris, 67 Cal.2d 866, 870 (1967) (finding waiver for purposes of later challenging a criminal conviction). The Court, therefore, also disregards this additional "waiver" argument.

8c Defendants also argue that Plaintiff is barred from going forward on his Section 1983 claim(s) by the doctrine announced in Heck v. Humphrey, 512 U.S. 477 (1994). See Motion at 9-10; Nuno v. County of San Bernardino, 58 F. Supp.2d 1127, 1131 (C.D. Cal. 1999). However, as Plaintiff points out, and as Defendants' own papers reveal, this doctrine prohibits Section 1983 suits which would call into question the lawfulness of a prior conviction or resulting sentence. It has no apparent application to a case in which a former defendant/now plaintiff was never convicted. The Court therefore disregards this further basis for the Motion.

The Court also largely confines its discussion to collateral estoppel effects of the prior preliminary hearing, as it appears that Defendants' Motion rises and falls with this argument.^9c The Court concludes that a judgment on the pleadings is not warranted on this basis. The Ninth Circuit has indicated some hesitance in deciding the collateral estoppel effect of a prior probable cause determination solely from the pleadings. See Morley, 175 F.3d at 761. This restraint is appropriate given the explicitly factual inquiries which are necessary to determine whether any of the two or three "exceptions" to the collateral estoppel bar raised by an adverse determination in a state preliminary hearing may apply.

9c For instance, the Court has rejected Defendants' Heck and "waiver" arguments. Their invocation of the "heightened pleading standard" would, it seems, more appropriately be raised in a Rule 12(b)(6) motion to dismiss. At this stage, the Court cannot say that Plaintiff's FAC fails to state a claim "as a matter of law," as is required for dismissal under the Rule 12(c) standard. See, e.g., Diem v. City and County of San Francisco, 686 F. Supp. 806, 808 (N.D. Cal. 1988). Moreover, it is not clear that Plaintiff's claims rely on the sort of subjective intent of the officers that demands a "heightened pleading standard." Plaintiff's claims are at least primarily based on lack of probable cause for arrest.

In this case, for example, it certainly seems possible, even probable, that Plaintiff is estopped from pursuing a Section 1983 claim premised on a lack of probable cause for his arrest. Where a preliminary hearing was held, and the plaintiff (then criminal defendant) was afforded a full and fair opportunity to challenge the existence of probable cause, he or she may be estopped from a collateral challenge to that probable cause, to the extent that a Section 1983 claim constitutes a "re-litigation" of that "issue." In the absence of specific evidence from the civil plaintiff that the issue of probable cause was not fully litigated at the prior preliminary hearing for tactical (or other) reasons, a court may even presume that the plaintiff (prior criminal defendant) had an "ample opportunity" to litigate probable cause, was motivated to do so, and that this issue was "actually litigated." McCutchen, 73 Cal.App.4th at 1147. In other words, it is this subsequent civil plaintiff's burden to demonstrate a lack of "litigation."

Nonetheless, this Court cannot fully resolve the question of this potential collateral estoppel effect without resort to facts outside of the operative pleadings. Defendants' Motion relies on a transcript of the February 8, 2000 preliminary hearing in which the issue of probable cause was ostensibly decided. Plaintiff's Opposition, meanwhile, also references the transcript, and claims its "perfunctory" nature reveals that there were tactical reasons not to fully contest probable cause. See Opposition at 10-11.

Yet Rule 12(c) explicitly states that no facts or materials outside of the pleadings may be considered without converting the motion to a motion for summary judgment under Rule 56. See Fed.R.Civ.Pro. 12(c) ("If . . . matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment . . . and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.") (emphasis added). Thus, the Court may not consider the transcript, or any other evidence outside of the pleadings, on a Rule 12(c) motion. Nor has this Court been presented with adequate briefing or materials to just convert Defendants' Motion into one for summary judgment. Thus, the Court must DENY Defendants' Motion at this time. This denial is without prejudice to the re-presentation of an argument based on collateral estoppel by way of a motion for summary judgment.^10c

10c Plaintiff has not argued the application of the other two "exceptions" to the collateral estoppel effects of a preliminary hearing. Thus, the Court does not separately consider these two.

III. CONCLUSION

Based on the foregoing, the Court concludes that it cannot determine, based solely on the operative pleadings in this case, whether Plaintiff should be collaterally estopped from asserting claims under Section 1983 based on alleged lack of probable cause for his arrest. Such a finding would require recourse to facts, and evidence, outside the pleadings. The Court may not consider such additional materials for a motion seeking a judgment on the pleadings without converting it to a motion for summary judgment. Moreover, the requisite facts are only imperfectly presented for purposes of this Motion. Therefore, the Court could not properly decide the impact of collateral estoppel, even were it willing to convert the present motion to a motion for summary judgment.

Accordingly, a judgment on the pleadings is not appropriate, and Defendants' Motion seeking this relief is hereby DENIED. Nor is summary judgment appropriate at this juncture. However, this denial is without prejudice to Defendants' ability to again argue the impact of collateral estoppel in a summary judgment motion.

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_____________________ Deputy Clerk