916 F.2d at 552. This statement, and the holding in Waller v. Blue Cross of California, 32 F.3d 1337, 1341 (9th Cir. 1994) ("The disclosure of a transaction that is not inherently a statutory breach of fiduciary duty . . . cannot communicate the existence of an underlying breach"), gave rise to Spragg v. Pac. Telesis Grp. 168 F.3d 501 (9th Cir. 1999). To understand this Court's disagreement with Spragg, an unpublished opinion, requires analyzing Waller.
In its order of dismissal, the District Court, adopting language suggested by respondent, dismissed petitioner's claims "in [their] entirety on the merits and with prejudice." App. to Pet. for Cert. 59a. Without contesting the District Court's designation of its dismissal as "on the merits," petitioner appealed to the Court of Appeals for the Ninth Circuit, which affirmed the District Court's order. 168 F.3d 501 (1999) (table). Petitioner also brought suit against respondent in the State Circuit Court for Baltimore City, Maryland, alleging the same causes of action, which were not time barred under Maryland's 3-year statute of limitations.
(citing Cal. CCP § 338(a)). See Renfrow v. Certified Grocers of California Ltd., 168 F.3d 501 (9th Cir. 1998); Cal. CCP § 340(3). See Roberts v. McAfee, Inc., 660 F.3d 1156, 1166 (9th Cir. 2011).
Additionally, the plaintiff is also alleging an after-the-fact conspiracy to cover up what allegedly occurred in this case, i.e., excessive force being deployed after the plaintiff was placed in restraints. See Howard v. Del Castillo, 2001 WL 1090797 * 3 (E.D. La. September 17, 2001) (Clement, J.) ( citing Smithart v. Towery, 79 F.3d 951, 952-53 (9th Cir. 1996) and Swangin v. California State Police, 168 F.3d 501 (9th Cir. 1999)). Bush's conviction on the charge of resisting an officer is predicated on the criminal court's factual finding that Bush was not restrained and did not have both hands cuffed behind her back at the time her head careened into a nearby parked car.
The facts and circumstances surrounding the claimed conspiracy may be adduced in the pending criminal prosecution to counter the charge of resisting arrest. See Howard v. Del Castillo, 2001 WL 1090797 * 3 (E. D. La. September 17, 2001) (Clement, J.) ( citing Smithart v. Towery, 79 F.3d 951, 952-53 (9th Cir. 1996) and Swangin v. California State Police, 168 F.3d 501 (9th Cir. 1999)). The Court cannot determine at this time exactly how the plaintiff's excessive force claim would be affected by a criminal conviction on the charge of resisting arrest.