Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NC042952, Roy L. Paul, Judge.
Law Offices of Luis A. Carrillo and Luis A. Carrillo for Plaintiff and Appellant.
Carmen A. Trutanich, City Attorney and Kenneth F. Mattfeld, Deputy City Attorney for Defendant and Respondent.
ASHMANN-GERST, J
The question presented by this appeal is whether the trial court properly applied the holding in Hernandez v. City of Pomona (2009) 46 Cal.4th 501 (Hernandez) and the doctrine of issue preclusion when it dismissed the negligence complaint of appellant Alicia Unger (Unger) against respondent Kevin McCloskey (McCloskey). We find no basis to reverse. Accordingly, we affirm.
FACTS
Unger sued McCloskey in federal court and alleged: Unger is a reporter and McCloskey is a Los Angeles Port Police Officer. While she was attempting to interview Antonio Villaraigosa, the Mayor of the City of Los Angeles, Unger was pushed into a steel container by McCloskey and suffered injury. McCloskey violated Unger’s Fourth Amendment right to be free from excessive use of force and her First Amendment right to engage in free speech. In addition, he committed assault and battery and his conduct constituted negligence.
The Fourth Amendment excessive force claim was alleged pursuant to title 42 United States Code section 1983 (section 1983). That statute provides in part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.” (42 U.S.C. § 1983.)
The federal court bifurcated the issue of whether McCloskey used excessive force. After presentation of the evidence, the jury was instructed as follows: “In general, the seizure of a person is unreasonable under the Fourth Amendment if a police officer uses excessive force in seizing or restraining a person for the purpose of preventing the commission of a crime, or for protecting the safety of the person or others. Thus, in order to prove an unreasonable seizure or restraint in this case, the plaintiff must prove by a preponderance of the evidence that the defendant used excessive force against the plaintiff. [¶] Under the Fourth Amendment, a police officer may only use such force as is ‘objectively reasonable’ under all of the circumstances. In other words, you must judge the reasonableness of a particular use of force from the perspective of a reasonable officer on the scene and not with the 20/20 vision of hindsight. [¶] In determining whether the officer used excessive force in this case, consider all of the circumstances known to the officer on the scene, including: [¶] 1. The severity of the crime or other circumstances to which the officer was responding; [¶] 2. Whether the plaintiff posed an immediate threat to the safety of herself or to others; [¶] 3. Whether the plaintiff was actively resisting restraint or attempting to evade the officer; [¶] 4. The amount of time and any changing circumstances during which the officer had to determine the type and amount of force that appeared to be necessary; [¶] 5. The type and amount of force used; [¶] 6. The availability of alternative methods.” McCloskey prevailed at trial on the issue of whether he used excessive force. Later, the federal court granted a partial summary judgment for McCloskey on Unger’s First Amendment claim. The federal action was terminated without a ruling as to the claims for negligence, assault and battery.
By default, the federal court declined to exercise supplemental jurisdiction over the state law claims.
Based on the same incident, Unger sued McCloskey for negligence in state court. McCloskey filed a motion to dismiss pursuant to Code of Civil Procedure section 581, subdivision (m) and argued that Unger’s action was barred by the res judicata impact of the federal judgment. He asked the trial court to take judicial notice of the complaint in the federal action and, among other things, the civil minutes indicating the adverse judgment. The trial court instructed the parties to file additional briefs discussing Hernandez. In his supplemental papers, McCloskey argued that once Hernandez was applied, Unger’s negligence claim was barred by issue preclusion. Kenneth Mattfeld, McCloskey’s attorney, submitted a declaration authenticating the jury instructions given to the federal jury; a copy of the federal jury verdict; a DVD containing raw video footage of the incident; a copy of the declaration of James Hyman submitted in support of the motion for partial summary judgment in the federal action; and excerpts of Unger’s testimony from the transcript of the federal trial.
The trial court ruled that the federal jury resolved the same issue being raised by Unger in her negligence action, i.e., whether McCloskey’s conduct was reasonable. As a result, the trial court concluded that issue preclusion prevented Unger from litigating the issue a second time.
Judgment was entered in favor of McCloskey.
This timely appeal followed.
STANDARD OF REVIEW
To pin down the law that governs our review of the dismissal, we must first determine the propriety of McCloskey’s motion. (Taylor v. Lockheed Martin Corp. (2000) 78 Cal.App.4th 472, 479.)
Code of Civil Procedure section 581, subdivisions (b) through (l) set forth specific grounds permitting a plaintiff or trial court to dismiss an action. The last subdivision in the statute, subdivision (m), then provides: “The provisions of this section shall not be deemed to be an exclusive enumeration of the court’s power to dismiss an action or dismiss a complaint as to a defendant.” (Code Civ. Proc., § 581, subd. (m).) Though broadly worded, subdivision (m) has limits. Our Supreme Court explained that “[i]n the absence of express statutory authority, a trial court may, under certain circumstances, invoke its limited, inherent discretionary power to dismiss claims with prejudice. [Citation.] However, this power has in the past been confined to two types of situations: (1) the plaintiff has failed to prosecute diligently [citation]; or (2) the complaint has been shown to be ‘fictitious or sham’ such that the plaintiff has no valid cause of action [citation].” (Lyons v. Wickhorst (1986) 42 Cal.3d 911, 915 (Lyons).) According to Lyons, “[s]everal additional grounds for dismissal have been recognized over the years. These include: (1) lack of jurisdiction; (2) inconvenient forum...; (3) nonjusticiable controversy; and (4) plaintiff’s failure to give security for costs [citation].” (Id. at p. 915, fn. 4.)
McCloskey’s motion to dismiss does not fall within any of these categories. The question is whether the motion was permissible. Below, McCloskey relied on Best v. Fitzgerald (1947) 81 Cal.App.2d 965, 967 (Best) for the proposition that issue preclusion may be raised on a motion to dismiss. In Best, the defendant filed a demurrer and a motion to dismiss based on claim preclusion. The demurrer was sustained and the motion to dismiss was granted. Citing Olwell v. Hopkins (1946) 28 Cal.2d 147, 149 (Olwell), Best held that a nonstatutory motion to dismiss based on claim preclusion is proper. (Best, supra, 81 Cal.App.2d at pp. 966–967.)
In Olwell, the plaintiffs sued the defendant for breach of contract. The defendant filed a motion to dismiss on the grounds that since it had not qualified to do business in California, the contract was void. The parties presented documentary evidence and the motion was granted. Subsequently, the plaintiffs sued upon the same cause of action. The trial court took judicial notice of the former action, sustained a demurrer without leave to amend, and then granted a motion to dismiss based on claim preclusion. On appeal, the plaintiffs argued that the second action should be decided on the merits even if the claim was founded upon a void contract; in the absence of findings, the former judgment was not decided on the merits and did not trigger claim preclusion; the defense of claim preclusion could not be raised on demurrer; and Code of Civil Procedure section 597 entitled the plaintiffs to a bifurcated trial on the issue of claim preclusion as a special defense. (Olwell, supra, 28 Cal.2d at pp. 151–153.) The Olwell court was not asked to decide whether a motion to dismiss can be used to raise the issue of claim preclusion, and it is not authority on an issue that it never actually decided. (Camarillo v. Vaage (2003) 105 Cal.App.4th 552, 565.) In our view, the decision by the Best court to rely on Olwell was an unfounded one.
We note that Best relied on Cunha v. Anglo California Nat. Bank (1939) 34 Cal.App.2d 383 (Cunha) for the proposition that a motion to dismiss may be supported by affidavits. (Best, supra, 81 Cal.App.2d at p. 967.) In Cunha, the defendant filed a motion to dismiss on multiple grounds, including that the action was a sham and based on false allegations. In support, the defendant filed affidavits and documentary evidence. The evidence contradicted the allegations in the complaint, so the court held that dismissal was proper. (Cunha, supra, at pp. 389–390.) The viability of Cunha, however, is no more. In Pianka v. State of California (1956) 46 Cal.2d 208, 211 (Pianka), our Supreme Court cited Cunha and specifically held that “nonstatutory speaking motions have now been superseded by the procedure governing motions for summary judgment.” (Ibid., superseded by statute on other grounds as stated in Levy v. Superior Court (1995) 10 Cal.4th 578, 585.)
If Best has any continuing viability, it is only that claim preclusion may be raised in a nonstatutory nonspeaking motion to dismiss. Because McCloskey’s motion to dismiss was supported by a request for judicial notice and evidence, it was based on facts outside the pleadings and qualified as a speaking motion. (Lerner v. Ehrlich (1963) 222 Cal.App.2d 168, 171.) This means that McCloskey’s nonstatutory speaking motion to dismiss did not fall within Best. In addition, pursuant to Pianka, the motion must be treated as one for summary judgment.
Summary judgment is subject to independent review. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) Like the trial court, “[w]e first identify the issues framed by the pleadings, since it is these allegations to which the motion must respond. Secondly, we determine whether the moving party has established facts which negate the opponents’ claim and justify a judgment in the movant’s favor. Finally, if the summary judgment motion prima facie justifies a judgment, we determine whether the opposition demonstrates the existence of a triable, material factual issue. [Citation.]” (Torres v. Reardon (1992) 3 Cal.App.4th 831, 836.)
DISCUSSION
The doctrine of issue preclusion operates to prohibit a party from relitigating issues if (1) the issue to be relitigated is identical to an issue decided in a prior proceeding, (2) the issue was actually litigated in the prior proceeding, (3) the issue was necessarily litigated in the prior proceeding, (4) the decision in the prior proceeding is final and on the merits, and (5) the party against who preclusion is sought is the same or in privity with a party to the prior proceeding. (Hernandez, supra, 46 Cal.4th at p. 511.) For purposes of issue preclusion, Hernandez explained that “an issue was actually litigated in a prior proceeding if it was properly raised, submitted for determination, and determined in that proceeding. [Citation.] In considering whether these criteria have been met, courts look carefully at the entire record from the prior proceeding, including the pleadings, the evidence, the jury instructions, and any special jury findings or verdicts. [Citations.]” (Ibid.)
Unger attacks the first and second elements.
I. The first element: identity of issues.
As we explain below, the issue of whether McCloskey acted reasonably for purposes of excessive force is identical to the issue of whether he acted reasonably for purposes of negligence. Hernandez is directly on point. Thus, we conclude that the trial court correctly applied the law.
A. Hernandez.
In Hernandez, police officers in multiple black-and-white police vehicles pursued a suspect in a car. After an 18-minute, high-speed chase, the suspect crashed and fled the scene on foot. Two police officers exited their vehicle and followed. One of them broadcast over his radio that the suspect had brandished a firearm. Two more police officers joined the chase, and a police dog was released. The dog caught the suspect, struck him in the shoulder and spun him around. There was testimony that as the dog was striking the suspect, he reached toward his waistband and yelled either “‘I got a gun”’ or “‘Gun.’” The police officers shot back, hitting the suspect 22 times and killing him. (Hernandez, supra, 46 Cal.4th at pp. 506–507.)
The decedent’s family filed a section 1983 complaint in federal court alleging, among other things, that the police officers had violated the decedent’s rights under the Fourth Amendment of the United States Constitution. They also asserted a state law claim for wrongful death based on the police officers’ alleged negligence during the shooting. The federal court bifurcated the state and federal claims and only tried the federal claims. Following trial, the jury found that three of the police officers had not violated the decedent’s Fourth Amendment rights by using excessive force. The jury could not reach a verdict regarding a fourth police officer. He moved for judgment as a matter of law based on qualified immunity. His motion was granted on the grounds that his use of deadly force was reasonable under the circumstances, and that he did not transgress the Fourth Amendment. Judgment was entered in favor of all the police officers on the excessive force claim. Because the federal court declined to exercise supplemental jurisdiction over the state law claims, they were dismissed. (Hernandez, supra, 46 Cal.4th at pp. 508–509.)
The decedent’s family filed a subsequent wrongful death claim against the same defendants in state court. The police officers demurred and argued that the action was barred by issue preclusion. (Hernandez, supra, 46 Cal.4th at pp. 506–507.) In opposition, the family argued that the doctrine of issue preclusion was inapplicable because “reasonableness” for purposes of a federal claim under section 1983 is not the same as “reasonableness” under state negligence law. (Hernandez, supra, at p. 509.) The trial court sustained the demurrer with respect to the excess force claim. (Id. at p. 510.) While the Court of Appeal agreed that the family could not pursue a claim based on the use of excessive force, it concluded that the family could seek recovery on the theory that the police officers failed to use reasonable care “in creating, through their preshooting conduct, a situation in which it was reasonable for them to use deadly force.” (Ibid.) The Court of Appeal remanded the matter to permit the family to amend their complaint to allege preshooting negligence. (Id. at p. 511.)
The California Supreme Court reversed. It concluded that whether the police officers acted reasonably in light of the totality of the circumstances was an identical issue in the federal section 1983 action and the state negligence action. (Hernandez, supra, 46 Cal.4th at p. 514.) The family, of course, saw the issue differently and asked the court to conclude that the standard of reasonableness applicable in a section 1983 action based on excessive force is not the same as the standard of reasonableness applicable in a state negligence action. (Hernandez, supra, at p. 513.) According to the family, while the Fourth Amendment requires an analysis that balances the concerns of the government with the extent of the intrusion, a state negligence claim does not require any such balancing. Rather, a negligence claim simply focuses on what a reasonably prudent person would have done in a similar situation. (Ibid.) In addition, the family argued that because a section 1983 claim requires proof of willful or intentional acts, a section 1983 claim therefore requires a state of mind more blameworthy than the state of mind required for negligence. (Hernandez, supra, at p. 513.)
As to the first argument, Hernandez explained that the United States Supreme Court “never suggested that a fact finder, in determining whether a particular seizure was reasonable, should conduct a balancing of governmental and private interests.” (Hernandez, supra, 46 Cal.4th at p. 513.) Rather, the high court “itself conducted this balancing in (1) concluding that police may not ‘use... deadly force to prevent the escape of all felony suspects, whatever the circumstances, ’ (2) announcing the applicable standard of reasonableness, i.e., whether police had probable cause to believe the suspect posed a threat of serious physical harm to themselves or to others, and (3) enumerating the factors that must be considered in determining whether a challenged seizure was reasonable. [Citations.]” (Id. at pp. 513–514.) Thus, in an excessive force case, the jury must determine the reasonableness of a police officer’s acts in light of the totality of the circumstances, including the severity of the crime, the threat posed by the plaintiff to the safety of the officer or others, and whether the plaintiff was actively resisting detention or attempting to escape. (Id. at p. 514.) Hernandez held: “The same consideration of the totality of the circumstances is required in determining reasonableness under California negligence law. [Citation.]” (Ibid.)
Regarding the second argument, the court held that because an objective standard of reasonableness applies to section 1983 claims and negligence claims, the mental state of a police officer who acted intentionally is not a relevant inquiry. (Hernandez, supra, 46 Cal.4th at pp. 514–515.) In a footnote, the court went further, stating: “It is true that there may be liability under section 1983 only if the acts constituting the seizure were ‘willful’ in the sense that they were not ‘unknowing’ or ‘accidental.’ [Citation.]... Consistent with these principles, the federal court here instructed the jury that it was plaintiffs’ burden to prove, among other things, that ‘the acts or omissions of the defendant[s] were intentional.’ In the federal action, plaintiffs never alleged or argued that the officers’ acts were not intentional or willful in this sense. On the contrary, in their section 1983 claim, they alleged that the shooting was ‘willful.’ Nothing indicates there was any evidence presented in the federal trial to suggest that the shooting was accidental. And, in granting [the fourth officer’s] posttrial motion for judgment, the federal court expressly found that [the fourth officer] fired because he saw Hernandez reaching toward his waistband and yelling either ‘I got a gun’ or ‘Gun, ’ and the other officers fired because they heard the shots as they approached and assumed [the fourth officer] was involved in a gun battle with Hernandez. Thus, the federal judgment clearly rested on findings that the officers acted reasonably, not on findings that they fired unknowingly or accidentally.” (Hernandez, supra, at p. 514, fn. 9.)
B. Pursuant to Hernandez, both actions involved the identical issue of whether McCloskey’s intentional acts were reasonable.
The question in Unger’s section 1983 action was whether McCloskey’s intentional acts were reasonable in light of the totality of the circumstances, including such factors as whether Unger posed a credible threat to the safety of McCloskey or others. Unger’s negligence action was based on the same intentional acts. We therefore conclude that the issue of reasonableness of McCloskey’s intentional acts was identical. In doing so, we note that the jury instructions given to the federal jury were very similar to the jury instructions given to the federal jury in Hernandez; both sets of instructions required the juries to determine whether police officer conduct was reasonable as judged from an objective standard. Hernandez teaches that if a police officer acted intentionally, the excessive force jury instructions require a federal jury to examine a reasonableness issue that is identical to the reasonableness issue raised in a state negligence action based on the same intentional acts.
Hernandez summarized the jury instructions thusly: “(1) ‘[a] law enforcement officer has the right to use such force as is reasonably necessary under the circumstances to make a lawful arrest, ’ and ‘[a]n unreasonable seizure occurs when a law enforcement officer uses excessive force in making a lawful arrest’; (2) ‘[t]he use of deadly force is only justified when a reasonable law enforcement officer would reasonably believe that there was an immediate threat to the safety of the officer or others at the time the force was used’; (3) ‘[w]hether force is reasonably necessary or excessive is measured by the force a reasonable and prudent law enforcement officer would use under the circumstances’; (4) ‘[t]he reasonableness inquiry... is an objective one, ’ and ‘[t]he reasonableness of the use of force should be judged’ ‘in light of the facts and circumstances confronting’ the police ‘from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight’; (5) ‘[s]ome of the things you may want to consider in determining whether the defendant used excessive force are the severity of the crime at issue, whether the plaintiff posed a reasonable threat to the safety of the officer or others, and whether the plaintiff was actively resisting detention or attempting to escape’; and (6) ‘[i]n deciding whether excessive force was used, you should consider the totality of the circumstances at the time.’” (Hernandez, supra, 46 Cal.4th at p. 512.)
In our view, Hernandez dispenses with semantics and employs wise policy. If an officer uses excessive force, that is tantamount to breaching a duty of care. If an officer’s use of force is reasonable, then by parity of reasoning the law of tort will deem the conduct to be within an acceptable scope.
Though Unger suggests otherwise, the federal action and state action do not involve accidental conduct. In the federal action, she alleged that McCloskey came up from behind her “and, without any order or warning to [Unger], forcefully pushed [Unger] into a twenty foot steel container causing severe physical injuries to [Unger].” She also alleged that the “use of force” violated her constitutional rights. In the state action, she alleged that McCloskey “came from behind the reporters and without any previous warning to stop, or any notification that she was in any type of restricted area, negligently pushed [Unger] sending her into a twenty foot tall steel container.” Unger next alleged that the Port Police Department determined that McCloskey’s use of force was unjustified. Consequently, both actions were based on McCloskey’s intentional decision to push Unger, and they asked the same question: Was McCloskey’s decision reasonable?
Like the plaintiffs in Hernandez, Unger never alleged or argued in the federal action that McCloskey’s acts were not intentional. In our view, the federal judgment was based on findings that McCloskey acted reasonably, not on findings that he pushed Unger unknowingly or accidentally. In light of the Hernandez court’s handling of the same issue, we will not speculate otherwise.
C. Unger’s arguments are unavailing.
To get out from under the yolk of Hernandez, Unger offers a series of arguments. Her first argument posits that while a federal excessive force claim requires a balancing of governmental interests versus the nature and quality of the intrusion, a state negligence claim does not. But Hernandez rejected the same argument, and we have no authority to shun Hernandez and reinvent the wheel. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455–456 [courts of inferior jurisdiction “must accept the law declared by courts of superior jurisdiction”].)
Second, Unger contends that Hernandez is distinguishable because it involved intentional acts and the state action against McCloskey involved negligent acts. She correctly points out that the federal jury did not decide her negligence claim, which invoked different nomenclature: duty, breach, causation and contributory negligence. This argument misses the point. One of the questions asked by both cases was whether an intentional course of conduct was reasonable when viewed via an objective standard, i.e., whether the police officers in Hernandez reasonably chose to shoot, and whether McCloskey reasonably chose to push. Issue preclusion can apply even if a section 1983 claim for excessive force and a state law claim for negligence implicate some disparate issues so long as one issue is identical. What Unger ignores is that reasonableness was a lynchpin issue in both cases.
Not to be deterred, Unger suggests that the state jury could find that McCloskey’s actions were accidental rather than intentional, which would implicate a different legal analysis. In the parlance of the appropriate review, Unger suggests that there is a triable issue. But in her opening brief on appeal, Unger does not argue that her pleading raises an issue of accidental but negligent conduct, and she fails to point to a conflict in the evidence. Nor did she elaborate on her theory.
In her reply brief, Unger argues that McCloskey either negligently pushed her or they collided in the space between two shipping containers and the issue is whether his acts were accidental. She suggests that this issue was not presented to the federal jury because section 1983 liability must be based on intentional conduct. Unger, however, once again failed to advert to any allegations in her complaint that raise this issue or any evidence establishing that the issue is triable. What did the DVD of the incident show? What did the Unger’s testimony at the federal trial show? Without assessing the evidence, Unger cannot prevail. Moreover, Hernandez declined to validate the exact same issue because, like here, there was no evidence or argument of accidental conduct in the federal action. We decline too.
In any event, this argument was waived because it was not raised below. (Hepner v. Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486.) The opposition papers filed in the trial court never suggested that McCloskey’s conduct was accidental. Rather, her papers averred: (1) “[Unger] is arguing that [McCloskey] negligently used force in pushing [Unger] against a steel container when [Unger] was merely seeking out an interview and was not, and had not been, engaged in any illegal activity.” (2) “The investigation of the incident by the Port Police Department established that the [u]se of [f]orce by [McCloskey] was unjustified.” By now suggesting McCloskey acted accidentally rather than intentionally, it is apparent that Unger is impermissibly changing her theory on appeal.
Third, Unger argues that the issue of reasonableness decided in a federal civil rights case is different from the issue of whether a person’s conduct fell below the standard of care. She believes that an excessive force claim and a negligence claim require different findings of fact. Once again, her argument is hemmed in by Hernandez. Insofar as intentional conduct is involved, Hernandez held that the reasonableness standard applicable to an excessive force case is the same as the standard of reasonableness in a negligence case.
Fourth, Unger contends that the issues were not identical because the federal jury was not asked to decide whether McCloskey’s conduct was objectively reasonable under a totality of the circumstances. In essence, she contends that the instructions given to the federal jury in her case differed so greatly from the instructions given to the federal jury in Hernandez that it is inapposite. But the two jury instructions were pragmatically the same. They explained that the force used must be objectively reasonable under all the circumstances. It exalts form over substance for Unger to seek reversal based on picayune semantic differences.
II. The second element: actual litigation.
To defeat the second element of issue preclusion, Unger points out that her negligence claim never went to trial in federal court. This is a red herring. As we have already discussed, the reasonableness of McCloskey’s conduct was litigated in connection with the excessive force trial. It bears noting that the wrongful death claim in Hernandez did not go to trial in federal court either. That fact did not prevent the application of issue preclusion. Next, Unger maintains that Hernandez does not apply because her state negligence claim was never reduced to a final judgment. This is merely the same argument in different garb.
All other issues are moot.
DISPOSITION
The judgment is affirmed.
McCloskey is entitled to his costs on appeal.
We concur: BOREN, P. J., DOI TODD, J.