Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 30-2008-00109928 Robert J. Moss, Judge. .
Richard Wayne Parker, in pro. per., for Plaintiff and Appellant.
Cristina L. Talley, City Attorney, and Moses W. Johnson IV, Assistant City Attorney, for Defendants and Respondents.
OPINION
RYLAARSDAM, J.
Plaintiff Richard Wayne Parker appeals from the dismissal of his suit after the trial court sustained the demurrer of defendants City of Anaheim, Charlie Chavez, Micheal A. Aquino, Donald Klein, and Stephen Whalen without leave to amend. He contends the court erred in not postponing the hearing on the demurrer until he would be able to participate, in sustaining the demurrer, and in denying him leave to amend. His unfocussed briefs are woefully inadequate in that he fails to provide us with record references as required by California Rules of Court, rule 8.204(a)(1)(C). Nevertheless, we have reviewed the record and conclude the court did not err. We take judicial notice of six prior decisions by the federal courts wherein plaintiff either raised the same issues presented here or raised issues collaterally related to them. We affirm the judgment.
FACTS
In 1997, 295 kilograms of cocaine was stolen from a Bureau of Narcotics Enforcement evidence vault. Plaintiff, employed in law enforcement, had access to the vault and a year or so later was arrested. Large sums of cash were found in his possession. In two separate trials, plaintiff was convicted of filing a false tax return, conspiracy to possess cocaine, and three counts of possession of cocaine with intent to distribute. In January 2000, he was sentenced to life imprisonment. In 2001, plaintiff’s conviction was affirmed by the United States Court of Appeals for the Ninth Circuit. That appeal was only the start of his continuing attacks on his conviction, first in five additional proceedings in federal court and now, in the present action, in the Orange County Superior Court.
The next opinion of which we take judicial notice, issued by the Ninth Circuit in 2006, was from the denial of plaintiff’s motion for a new trial. The motion was based on plaintiff’s allegation that “a report written by [a p]olice [s]ergeant... [that] inventoried... cocaine seized by the... [p]olice [d]epartment” was new evidence. (United States v. Parker (9th Cir., Mar. 10, 2006, No. 05-50254) 2006 U.S.App. Lexis 6495, *p. 5.) The report dealt with a description of the cocaine in the Bureau of Narcotics Enforcement evidence vault, which was part of 600 kilograms of cocaine seized by the Anaheim Police Department. After the vault was burglarized, “the cocaine retained by the [Anaheim Police Department]..., was compared to the cocaine recovered in [the] investigation [resulting in plaintiff’s conviction].” (Id. at p. *6.) At plaintiff’s trial, testimony was presented that the cocaine found in his possession was derived from the same source as the “Anaheim kilograms.” (Ibid.) Plaintiff argued that the report disclosed discrepancies in the manner in which the cocaine was marked and that therefore the “Anaheim kilograms must have been tampered with before being tested....” (Id. at pp. *6-7.) The Ninth Circuit affirmed the denial of the new trial motion, concluding that the report was not newly discovered evidence and that it had been furnished to plaintiff at the time of his trial. (Id. at p. *10.) The United States Supreme Court denied plaintiff’s petition for writ of certiorari.
At the same time as the preceding appeal, the Ninth Circuit affirmed the denial of plaintiff’s motion to “vacate, set aside, or correct his conviction and sentence.” (United States v. Parker (9th Cir., Mar. 10, 2006, No. 04-55736) 2006 U.S.App. Lexis 6498, p. *1.) This motion and the following appeal were based on asserted ineffective assistance of counsel, resulting in a number of errors during the trials and on appeal. The United States Supreme Court denied plaintiff’s petition for writ of certiorari.
In 2008, the Ninth Circuit issued another opinion in the case, summarily affirming the District Court’s “orders denying [plaintiff’s] post[]judgment motions for discovery and for removal of the Assistant United States Attorney from the case.” (United States v. Parker (9th Cir., Mar. 17, 2008, No. 07-50540) 2008 U.S.App. Lexis 6565, pp. *1-2.) The record does not disclose whether the discovery motion was related to the same police report that is the subject of the present suit. The United States Supreme Court denied plaintiff’s petition for writ of certiorari.
Later in 2008, a decision by the United States District Courtdiscloses that in 2006 “defendant filed a motion for relief from the judgment... [wherein he] argued that the government perpetrated a fraud upon the Court by using false and fabricated evidence to link defendant to the cocaine originally seized by the [Anaheim Police Department].” (United States v. Parker (C.D.Cal., Aug. 22, 2008, No. CR. 98-749) 2008 U.S. Dist. Lexis 86486, pp. *3-4.) The District Court had declined to issue a certificate of appealability, as had the Ninth Circuit. The 2008 District Court decision dealt directly with plaintiff’s motion for “Relief From the Judgment/Conviction Based on ‘Actual Innocence.’” (Id. at p. *5.) Again the motion was based upon alleged discrepancies relating to the source of the cocaine. The District Court reiterated “even without evidence that the [Anaheim Police Department] transferred 420 kilograms to the Riverside BNE, there was other substantial evidence linking [plaintiff] to the kilograms seized by the [Anaheim Police Department] in 1994, and otherwise tying [plaintiff] to the 295 kilograms stolen from the Riverside BNE” (id. at pp. *10-11) and denied the motion.
Finally, also in 2008, the District Court issued an opinion denying plaintiff’s motions (United States v. Parker (C.D.Cal., Dec. 12, 2008, No. CR-9-749) 2008 U.S. Dist. Lexis 104237), which incorporated most of his earlier motions, arguing they had been denied because of his failure to state his claims in the form of a sworn affidavit. The motions also included a new complaint dealing with allegations that plaintiff had certain tattoos.
Undeterred, plaintiff filed this action in the Orange County Superior Court against City of Anaheim, Anaheim Police Department and several police officers. It is entitled “Complaint for damages arising from the production of a false/fictitious police report and the reproduction/distribution of the document after being altered/tampered to conceal the misconduct in violation of the California Public Records Act, California Government Code, at § 2650, et seq. and California state law.” (Capitalization omitted.) (We assume the Government Code reference is intended to be to section 6250.)
The first paragraph of the complaint contains a “synopsis of the claim” (capitalization omitted), as follows: “Anaheim Police Officer Donald Klein... authored a false/fictitious police report under Anaheim Police Department DR# 98-45400 specifically intended for use by another law enforcement agency in grand jury proceedings. The report was later discovered to exist in a ‘redacted form, ’ specifically with the DR# ‘redacted.’ The police report was requested by... [p]laintiff pursuant to the California Public Records Act, California Government Code at § 2650 [sic] et seq[.] from the records management bureau of Anaheim Police Department. The two[-]page document was provided with alterations/tampering apparent in the document. Plaintiff submits that the alterations/tampering to the document were to conceal the fact that the document is a false police report which was not authored with a legitimate law enforcement purpose. [¶] Complaints to the Anaheim Police Department – Office of Internal Affairs have resulted in a denial of misconduct and a ‘cover-up’ of the original misconduct; specifically the false police report. [¶] Plaintiff submits to the [c]ourt that he has suffered damages as a result of the misconduct and violations of California state laws.” (Capitalization and underscoring omitted.) A review of the complaint makes it clear that the referenced police report is the report referred to in several of the federal cases dealing with plaintiff’s narcotics conviction.
The complaint contains the following allegations to support this conclusion. The report was prepared by Detective Klein, in connection with the grand jury investigation in December 1998, to document a “chain of evidence of the kilos of cocaine....” The United States Attorney submitted a sworn affidavit that the report was furnished to plaintiff as part of the discovery materials. During plaintiff’s trials, Klein testified to the details contained in the report.
Plaintiff then alleges, as he did in the federal cases, that the report is false and explains he was damaged thereby as follows: (1) the false report was presented to the grand jury to obtain an indictment, (2) the false report was used during the trial to provide a chain of evidence, (3) as a result, plaintiff was convicted and sentenced, and (4) the “cover-up” of the false report has prevented plaintiff from reversing his conviction in postconviction proceedings.
DISCUSSION
1. Plaintiff is precluded from seeking damages absent favorable termination of the criminal conviction.
As noted by the trial court and pointed out by defendants, this case is controlled by the principles announced in Heck v. Humphrey (1994) 512 U.S. 477 [114 S.Ct. 2364, 129 L.Ed.2d 383]. In Heck the petitioner had been convicted in an Indiana state court and sought damages in federal court under 42 United States Code section 1983 against state prosecutors and an investigator. He contended that the defendants “had engaged in an ‘unlawful, unreasonable, and arbitrary investigation’ leading to [his] arrest; ‘knowingly destroyed’ evidence ‘which was exculpatory in nature and could have proved [his] innocence’; and caused ‘an illegal and unlawful voice identification procedure’ to be used at petitioner’s trial.” (Id. at p. 479.) The U.S. Supreme Court held that damages were not available unless the criminal procedure had been terminated in plaintiff’s favor.
The court noted that section 1983 ‘“creates a species of tort liability’... [and] to determine whether there is any bar to the present suit, we look first to the common law of torts. [Citation.]” (Heck v. Humphrey, supra, 512 U.S. at p. 483.) The court then went on to state “[t]he common-law cause of action for malicious prosecution provides the closest analogy to claims of the type considered here because... it permits damages for confinement imposed pursuant to legal process.” (Id. at p. 484.) Next, citing Carpenter v. Nutter (1899) 127 Cal. 61, the court iterated the rule that “[o]ne element that must be alleged and proved in a malicious prosecution action is termination of the prior criminal proceeding in favor of the accused. [Citations.]” (Heck v. Humphrey, supra, 512 U.S. at p. 484.) So here.
Although in this case we are dealing with a state action for damages resulting from a federal prosecution, the same principle applies. The kinds of damages asserted by plaintiff are analogous to damages for malicious prosecution. And before such damages may be asserted, plaintiff must first establish that the criminal proceedings were terminated in his favor. This he cannot do.
Plaintiff seeks to distinguish Heck, arguing it does not apply, because he is not seeking to invalidate his conviction and only seeks damages for the preparation of the allegedly fraudulent police report. But this does not detract from the fact that, however plaintiff characterizes his complaint, it is, in its essence, analogous to an action for malicious prosecution.
Although refusing to address the issue, the Heck court also notes that an action of this type might be barred by res judicata. (Heck v. Humphrey, supra, 512 U.S. at p. 480, fn. 2.) Here the district court declared in one of the 2008 actions, among others rejecting plaintiff’s contention that the “altered” report resulted in his conviction, that “there was other substantial evidence linking [plaintiff] to the kilograms seized by the [Anaheim Police Department] in 1994, and otherwise tying [plaintiff] to the 295 kilograms stolen from the Riverside BNE.” (United States v. Parker, supra, 2008 U.S. Dist. Lexis at pp. *10-11.) Since this issue has not been briefed, we are not basing our decision on it but note in passing that collateral estoppel (or issue preclusion) would also probably bar plaintiff’s claim that his damages resulted from the allegedly altered report. (See, e.g., Allen v. McCurry (1980) 449 U.S. 90, 105 [101 S.Ct. 411, 66 L.Ed.2d 308].)
2. The court did not err in failing to continue the hearing on the demurrer.
Defendants’ demurrer was originally noticed for hearing on May 15, 2009. It was subsequently continued to June 19. Proof of service of notice of this new date was mailed to plaintiff on April 13. On May 26, plaintiff filed a “request for temporary stay of all proceedings before the court” (capitalization omitted). He stated he was being transferred to another prison and he would notify the court when he arrived at his new facility. The request did not indicate when plaintiff expected to be relocated. On June 8, the court scheduled a case management conference for the same date as the hearing on the demurrer, June 19. Notice of this change was mailed to plaintiff on June 11. On June 15, plaintiff filed a “request for leave to supplement opposition to defendant’s demurrer” (capitalization omitted). On June 19, the court sustained the demurrer.
Plaintiff had apparently previously participated in court proceedings by way of a telephone appearance; the record contains a “notice of lien” filed by CourtCall on May 19, 2009, claiming a lien for $50 for a telephone appearance by plaintiff. Although plaintiff stated in his “request for temporary stay of all proceedings before the court” (capitalization omitted) that he “surmises that this surprise transfer is directly related to the reluctance of the staff to permit the required ‘telephonic appearances’ of the [p]laintiff, ” there is nothing in the record to indicate he was unable to make a telephone appearance on June 19. Furthermore, as discussed below, oral argument would not have affected the outcome of the case.
3. The court did not err in denying plaintiff leave to amend.
Leave to amend a complaint is not guaranteed, even if a plaintiff is in pro. per. Rather plaintiff has the burden to show he could plead a viable complaint (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081) and he has not met that burden here.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
WE CONCUR: SILLS, P. J., ARONSON, J.