Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. SC059316, Paul G. Flynn and Joseph S. Biderman, Judges.
Vicki M. Roberts, in pro. per.; and Richard G. Sherman, for Plaintiff and Appellant.
Rockard J. Delgadillo, City Attorney and Janet G. Bogigian, Assistant City Attorney for Defendants and Respondents.
EPSTEIN, P. J.
Following entry of judgment against her, Vicki M. Roberts challenges an order granting summary adjudication of all but one cause of action, and judgment on the pleadings as to the remaining cause of action. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
Appellant, an attorney, represented Wolfriver Holding Corporation, which was the subject of an arson-for-profit investigation. In July 1997, police and arson investigators executed a search warrant at Wolfriver’s corporate offices. This warrant was issued in reliance on the affidavit of James Thornton, an arson investigator with the Los Angeles City Fire Department.
In December 1998, a search warrant was executed at appellant’s law office, located in her home. This warrant also was based on an affidavit by James Thornton. Appellant moved to traverse the warrant, alleging that Thornton’s affidavit contained many false statements. The trial court conducted a hearing pursuant to Franks v. Delaware (1978) 438 U.S. 154. The court focused on six items in the affidavit which it considered crucial to the determination of probable cause. After hearing, the court found the affiant was truthful as to five of the six items, and that there was probable cause to issue the warrant based on those items. The court denied the motion to traverse the warrant.
A criminal case was filed against appellant, but was later dismissed. Appellant then brought this action against the City of Los Angeles (City) and arson investigator James H. Thornton. In her second amended complaint, the charging pleading, appellant asserted causes of action for violation of civil rights, violation of the 4th and 14th Amendments of the United States Constitution, false imprisonment, defamation, and injunctive relief. Underlying many of the claims is the allegation that Thornton made false statements in order to obtain the search warrant.
Appellant originally named Los Angeles County, the Los Angeles County District Attorney’s office, former District Attorney Gil Garcetti, and Deputy District Attorney Michael J. Cabral as defendants, but dismissed them in October 2004.
This cause of action was dropped from the case sometime before the dispositive rulings which are the subject of this appeal.
While this civil case was pending, appellant petitioned for a finding of factual innocence under Penal Code section 851.8 as to the criminal action. In May 2004, the court granted the motion. The court issued an order explaining that it believed the police had probable cause to arrest appellant, but once all the evidence was offered, it was clear that appellant was not involved in the arson-for-profit scheme in which the Wolfriver codefendants allegedly were involved. In February 2006, appellant asked the court to expand the order to state that the court ‘“specifically found that no probable cause existed for the arrest or prosecution of Petitioner, a prerequisite for the granting of the Penal Code Section 851.8 petition.”’ The court declined to do so.
In October 2005, the City and Thornton moved for summary judgment or summary adjudication. The court found appellant’s constitutional claims barred by collateral estoppel based on Judge Pounders’ ruling in the Franks hearing that probable cause existed for the search warrant, and that the judicial determination as to the propriety of the search warrant precluded appellant from establishing extraordinary circumstances necessary to justify injunctive relief. The court found a triable issue of material fact as to whether Thornton made a defamatory statement about appellant during the execution of the search warrant. On February 24, 2006, the court (Judge Paul G. Flynn) granted summary adjudication as to all causes of action except the cause of action for defamation.
In August 2006, the City and Thornton moved for judgment on the pleadings as to the remaining cause of action for defamation based on immunity under Government Code section 821.6. The court (Judge Joseph S. Biderman) granted the motion without leave to amend, and the action was dismissed. Appellant filed a timely appeal from the judgment (order of dismissal).
DISCUSSION
I
Appellant claims procedural defects precluded the court from granting the motion for summary adjudication. First, she claims the court improperly converted respondents’ motion for summary judgment into a motion for summary adjudication. Respondents’ motion was for summary judgment, or in the alternative, summary adjudication. Code of Civil Procedure section 437c, subdivision (f)(2) provides in part: “A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.” Respondents sought summary adjudication as an alternative to summary judgment; the court did not convert the motion.
Appellant argues that the motion for summary adjudication violated the mandatory provisions of California Rules of Court, rule 3.1350(b) and (h). Subsection (b) requires that the specific cause of action, affirmative defense, claim for damages, or issue of duty as to which summary adjudication is sought “must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.”
Respondents acknowledge that they technically did not meet this requirement, but they assert their moving papers adequately apprised the court and the opposing party of the bases on which they sought adjudication of the causes of action. We agree. The notice of motion plainly identified the three causes of action, and the grounds supporting summary adjudication for each: (1) the constitutional claims against Thornton and the City are barred by collateral estoppel; (2) the constitutional claims against Thornton are barred by qualified immunity; (3) the constitutional claims against the City fail because there is no evidence of a constitutional violation resulting from any policy of the City pursuant to Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658; (4) the cause of action for defamation fails because there is no evidence that Thornton made any false, unprivileged statement about appellant; and (5) the injunction should be denied because the evidence is insufficient to warrant extraordinary relief.
Respondents also admit their separate statement in support of summary adjudication failed to repeat, verbatim, the bases on which they sought summary adjudication, as required by rule 3.1350(b), and was not in the format required for a supporting separate statement in a motion for summary adjudication under rule 3.1350(h). But respondents filed a joint separate statement of undisputed facts in support of their motion for summary judgment or summary adjudication. They set out the bases of their defenses to appellant’s constitutional claim and her defamation claim, and cited to evidence supporting each undisputed fact.
In opposing the motion for summary judgment or summary adjudication, appellant raised the defects in respondents’ separate statement, but she also responded on the merits as to each cause of action. At the hearing, she again raised the defects. Respondents urged the court to exercise its discretion to overlook the problem, and also offered to “state on the record today what issues need to be adjudicated . . . .” The court did not ask counsel to clarify the issues, apparently finding that unnecessary.
The requirement of a separate statement from the moving party and a responding statement from the party opposing summary judgment or summary adjudication “serves two functions: to give the parties notice of the material facts at issue in the motion and to permit the trial court to focus on whether those facts are truly undisputed.” (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1210.) In this instance, both functions were satisfied. Appellant had notice of the issues respondents asserted should be determined adversely and was able to present opposition, and the court had sufficient information to focus on the merits of respondents’ position and appellant’s opposition in order to resolve the motion. The court acted within its discretion in ruling on the merits despite the procedural irregularity.
Appellant also claims the motion for summary judgment or summary adjudication was not properly served, and should have been denied on that ground. According to appellant, on the 75th day before the hearing, the moving papers were left on the front porch of her residence, which was not her address of record for this litigation.
At the hearing on the motion, appellant did not dispute that she received the moving papers at that address. Instead, she complained that service at her home was “very disruptive of my personal home life.” The court continued the hearing on the motion from January 5, 2006 to February 23, 2006 to give appellant an opportunity to revise her opposition in order to comply with the court rules. At the continued hearing, the court addressed the defective service claim: “The defective service argument, it doesn’t bother me, since time has passed. I agree that it probably was not properly served; that is the motion. But in light of the oppositions that have been filed and the continuance that was granted in order to correct the deficiencies in the opposition, I don’t see how Miss Roberts could be prejudiced by this defective service issue, so I’m putting that aside for the time being.”
Whether or not she designated her home address as her address for service, appellant referred to that same address as her “residence/office” in her complaint.
We agree. Appellant received the moving papers, and had an extended time to file opposition. On this record, the court was well within its discretion in concluding she suffered no prejudice from any irregularity in service.
III
Appellant claims the court failed to rule on her timely objection to respondents’ declarations. Appellant filed a formal objection to paragraphs 7 and 8 of the declaration of James Thornton which was filed in support of respondents’ motion, asserting lack of foundation. Those paragraphs state:
“7. No person from the City of Los Angeles ever told me to falsify investigative reports or search warrant affidavits and it is against the custom, practice and policy of the Los Angeles Fire Department to falsify any investigative reports and search warrant affidavits.
“8. It is against the custom, practice and policy of the Los Angeles Fire Department to falsify investigative reports and search warrant affidavits.”
In her opposition to the summary judgment motion, appellant renewed and expanded her objection, stating: “The declarations filed in support of the motion lack foundation and should be disregarded except to the extent that they themselves show a pattern of dishonesty that continues on issues concerning this matter. It is respectfully suggested that a witness who is untruthful in one part of his testimony ought to be looked upon with suspicion as to other parts of his testimony. Certainly there is ample evidence of the continued pattern of perjury by defendant Thornton and apparently we now have the deputy city attorney chiming in with his own version of reality that is contrary to the facts, evidence, and truth.”
At the summary judgment hearing, the court said it was taking the motion under submission and would rule on the evidentiary objections. The court’s decision did not include any evidentiary rulings.
Appellant was diligent in seeking a ruling on her objections, raising the question not just in her opposition, but also at the summary judgment hearing. The issue is thus preserved on appeal. But even if the objections were well taken and the two paragraphs should have been stricken, the result would be no different.
Whether the City had a custom, policy or practice of falsifying affidavits did not bear on the court’s grant of summary adjudication. The court expressly found that appellant’s “constitutional violation claims are barred by the doctrine of collateral estoppel based upon the decision of Hon. William Pounders on January 29, 1999, that probable cause existed for the search warrant at issue.” In a civil rights action for damages pursuant to 42 United States Code section 1983, the determination that the plaintiff has suffered no constitutional injury at the hands of the individual City employee is conclusive as to both the employee and the City. (City of Los Angeles v. Heller (1986) 475 U.S. 796, 799.) Whether the City authorized the alleged constitutional violation in such instance is “quite beside the point.” (Ibid.) Because, as we explain, collateral estoppel barred appellant’s constitutional claims against Thornton and the City, evidence regarding the custom or practice of the Los Angeles Fire Department was not relevant to the court’s grant of summary adjudication.
IV
We turn to the principal issue on appeal, whether collateral estoppel precludes all the causes of action to which it was applied. Collateral estoppel “bars the relitigation of specific issues that were actually litigated in an earlier proceeding and decided adversely to the party against whom the doctrine is asserted.” (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 531.) For this doctrine to apply, the issue to which it is asserted must be identical to one presented in the first matter; the issue must have been actually litigated in the former proceeding; the issue must have been necessarily decided in that proceeding; the former proceeding must have resulted in a final judgment or order on the merits; and the party against whom the doctrine is asserted must have been a party, or in privity with a party, to the prior proceeding. (Ibid.)
The doctrine of collateral estoppel may be applied in a civil case to issues determined in a previous motion to suppress evidence in a criminal case. (McGowan v. City of San Diego (1989) 208 Cal.App.3d 890, 894-895.) The determination need not result from a trial and conviction; it is sufficient if it occurs as a result of a pretrial proceeding. (Id. at p. 895.)
Appellant moved for suppression of evidence on the ground that the probable cause finding for issuance of the search warrant was based on an affidavit by Thornton which contained untrue statements. Judge Pounders conducted an evidentiary hearing, found the affidavit truthful as to five of six items he considered essential to the finding of probable cause, concluded there was probable cause to issue the warrant, and denied the motion. Appellant unsuccessfully sought writ review of this ruling in this court, and in the California Supreme Court.
In this civil action, appellant again asserted that Thornton’s affidavit in support of the search warrant was untrue: “Defendant Thornton’s affidavit in support of the December 3, 1998 raid upon plaintiff’s home and office contained almost two dozen falsities about plaintiff. Virtually everywhere in said affidavit that plaintiff’s name is mentioned, the statement concerning plaintiff was false. But for the false statements about plaintiff, there would have been no probable cause for the issuance of the search warrant, and indeed, no warrant would or should have issued. The statements made by defendant Thornton were false and known by him at the time to be false.”
The issue of probable cause for issuance of the search warrant was actually litigated and necessarily decided when Judge Pounders denied appellant’s motion to traverse the warrant in the criminal proceeding. The order was final, and it was adverse to appellant, the party against whom the ruling is being asserted. The trial court in this civil action properly found appellant was precluded from relitigating the truthfulness of Thornton’s search warrant affidavit and the existence of probable cause to issue the search warrant.
Appellant argues she should not be estopped to challenge Thornton’s truthfulness because three years after the Franks hearing, a different trial court judge found that Thornton had made material false statements in his affidavit to the return to the search warrant. This is a different issue from Thornton’s truthfulness in the affidavit establishing probable cause to issue the search warrant, the issue decided adversely to appellant by Judge Pounders.
Citing People v. Adair (2003) 29 Cal.4th 895, appellant argues that when her petition pursuant to Penal Code section 851.8 for a finding of factual innocence was granted, this amounted to a determination that there was no probable cause to conclude that she committed any crime and therefore the court must have found “Thornton’s repetitive statements under oath to necessarily be untrue (see Adair).” The determination necessary for a finding of factual innocence is that no reasonable cause exists to believe the petitioner committed the offense for which the arrest was made. (People v. Adair, supra, 29 Cal.4th at p. 905.) This determination is distinct from the issue before Judge Pounders at the Franks hearing: whether there was probable cause for issuance of the search warrant. A person may be factually innocent even though there was probable cause for a search of the person or of his or her effects. The finding of factual innocence is not inconsistent with Judge Pounders’ determination of probable cause for issuance of the warrant, including his evaluation of Thornton’s affidavit. Indeed, the judge who made the finding of factual innocence expressly declined to expand the ruling to find a lack of probable cause.
Appellant also asserts that issues raised in her second amended complaint are broader than the issue upon which summary adjudication was based—the validity of the search and seizure at her home. But after excluding allegations against defendants who have been dismissed (see fn. 1, supra), and those related to the false imprisonment cause of action which is no longer part of the complaint, the remaining adjudicated claims are premised on the allegedly wrongful issuance of the search warrant. The adverse ruling as to the existence of probable cause to issue the warrant precludes appellant from relitigating claims which rely on its issuance.
VI
Appellant claims the court erred in granting judgment on the pleadings on the defamation cause of action. In the alternative, she argues that even if the motion were properly granted, she should have been given leave to amend.
The sole cause of action surviving after the grant of summary adjudication was for defamation. Appellant relied on the allegation that during the search of Wolfriver’s corporate offices in July 1997, Thornton “stated out loud to all within earshot, including plaintiff’s client, that plaintiff was going to jail.” She also relied on allegations that Thornton and Deputy District Attorney Cabral advised news media and others “that plaintiff was a participant in an alleged arson-for-profit scheme, which is false.” She alleged that a Los Angeles Times reporter was present at the Franks hearing, which must have been the result of information provided by a member of the investigative team, and “it appears that the investigative team is indeed funneling and continuing to funnel false and defamatory statements to the media about plaintiff.” She alleged that Thornton’s affidavit in support of the “raid upon plaintiff’s home and office contained almost two dozen falsities about plaintiff. Virtually everywhere in said affidavit that plaintiff’s name is mentioned, the statement concerning plaintiff was false. But for the false statements about plaintiff, there would have been no probable cause for the issuance of the search warrant, and indeed, no warrant would or should have issued. The statements made by defendant Thornton were false and known by him at the time to be false.”
Appellant alleged that this conduct, “stating to a third party that plaintiff was going to jail and/or that plaintiff was a suspect, and a participant in an alleged arson-for-profit scheme, and informing and continuing to inform the media as late as December 1998 or January 1999 of quasi-criminal proceedings against plaintiff which defendant knew or should have known were based on false and/or perjured statements and/or a fraud upon plaintiff and the court, and continuing to disseminate and funnel information to the media about plaintiff of a sinister nature implies that plaintiff is guilty of a crime, which is a false statement, as plaintiff has committed no crime.” She alleged these statements were not privileged or immune, and were not made in the course and scope of the investigation.
The trial court granted judgment on the pleadings as to this cause of action based on Government Code section 821.6 (section 821.6) immunity and cases interpreting that statute. We find no error.
Section 821.6 provides: “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” As the court explained in Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033, 1048, this section “immunizes not only the act of filing or prosecuting a judicial or administrative complaint, but also extends to actions taken in preparation for such formal proceedings. (Amylou R. v. County of Riverside (1994) 28 Cal.App.4th 1205, 1209-1210.) An investigation before the institution of a judicial proceeding is part of the prosecution of a judicial proceeding for purposes of the statute, even if the authorities later decide not to file charges. (Ingram v. Flippo [(1999)] 74 Cal.App.4th [1280,] 1293; Amylou R., supra, at pp. 1209-1211.) Acts undertaken in the course of an investigation, including press releases reporting the progress or results of the investigation, cannot give rise to liability. (Ingram, supra, at p. 1293 [held that statements concerning an investigation that were made in a press release ‘were part of the prosecution process’ and therefore immune]; Amylou R., supra, at pp. 1210-1211 [held that statements made to the plaintiff in the course of an investigation were ‘incidental to the investigation’ and therefore immune].)” Immunity under section 821.6 extends to a cause of action for defamation. (Gillan v. City of San Marino, supra, 147 Cal.App.4th at p. 1048.)
The defamatory statements alleged in the second amended complaint occurred in the course of the investigation of the arson-for-profit scheme. Whether Thornton made the alleged statements reasonably and appropriately, or made them maliciously as part of a baseless threatened prosecution, he is immune from liability under section 821.6. (Gillan v. City of San Marino, supra, 147 Cal.App.4th at p. 1050.) And under Government Code section 815.2, subdivision (b), the City cannot be liable for an act or omission of its employee where the employee is immune from liability. Judgment on the pleadings was properly granted.
Appellant also seems to argue that her defamation claim is not subject to the immunity statutes because it was alleged in the context of the federal civil rights statute pursuant to 42 United States Code section 1983. Appellant recognizes that the civil rights cause of action was summarily adjudicated against her, but argues that if we conclude that motion was improperly granted, then it will spring back into the operative complaint. We have concluded that the summary adjudication was proper, so we need not and do not address this claim.
Appellant claims the court abused its discretion by granting judgment on the pleadings without giving her the opportunity to amend. The court noted that in her opposition to the motion, appellant failed to show how she could amend the cause of action to avoid the immunity bar, “notwithstanding that this action has been pending for many, many years” and trial was less than two months from the date of the hearing. Nor could the court envision how appellant could amend. For that reason, it denied leave to amend.
This was not an abuse of discretion. Appellant had the burden of demonstrating the manner in which she could amend the complaint to state a cause of action for defamation which would not be subject to the immunity under section 821.6. (See Ross v. Creel Printing & Publishing Co. (2002) 100 Cal.App.4th 736, 748.) At no point in the trial court or on appeal has appellant suggested how she could do so.
We also find no support in the record for appellant’s claim that the issue of section 821.6 immunity had been decided in her favor in an earlier motion in this action. And as the trial court observed, even if the issue had been raised and rejected in an earlier demurrer, it was still properly before the court. A motion for judgment on the pleadings may be made at any time either prior to or at the trial itself, “even when a general demurrer has been previously overruled. The interests of all parties are advanced by avoiding a trial and reversal for defect in pleadings. The objecting party is acting properly in raising the point at his first opportunity, by general demurrer. If the demurrer is erroneously overruled, he is acting properly in raising the point again, at his next opportunity.” (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 877.)
DISPOSITION
The judgment is affirmed. Appellant to recover costs.
We concur: MANELLA, J., SUZUKAWA, J.