Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 34-2008-00023570
BUTZ, J.Plaintiff Michael E. Scherffius, an inmate at Mule Creek State Prison, brought this action for damages in September 2008, claiming defendants negligently and/or intentionally destroyed computers and computer-related materials belonging to his family that were seized from the family home under a lawful search warrant in 2004 but never used as evidence.
The trial court sustained defendants’ demurrer without leave to amend on the ground the action is barred by the doctrine of res judicata because plaintiff obtained a judgment in May 2008 that granted his petition for a writ of mandate, directing the County of Sacramento, its board of supervisors and the sheriff’s department to compensate plaintiff for the destroyed computer equipment.
Plaintiff now appeals in propria persona from the judgment sustaining the demurrer without leave to amend and dismissing the action. We find no error and shall affirm the judgment of dismissal.
FACTUAL AND PROCEDURAL BACKGROUND
We take the underlying facts from the complaint and documents subject to judicial notice. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081; Big Valley Band of Pomo Indians v. Superior Court (2005) 133 Cal.App.4th 1185, 1189–1190.)
In 2004, Sacramento County sheriff’s deputies executed a search warrant at plaintiff’s home and seized computers, peripheral devices, and hundreds of computer disks (floppy disks, CD’s and DVD’s) in connection with plaintiff’s arrest for suspected child molestation.
Some of the computer equipment belonged to other members of plaintiff’s household, and contained “priceless [items of] sentimental value” including hundreds of “[f]amily photos... that cover[] generations of [f]amily [m]embers” that cannot be replaced.
Plaintiff’s Petition for Writ of Mandate
In August 2007, after his conviction, plaintiff brought a petition for writ of mandate and declaratory relief (Super. Ct. Sacramento County, No. 07CS01148) seeking an order directing the County of Sacramento, the Sacramento County Board of Supervisors and the Sacramento County Sheriff’s Department to either return the property seized from his home pursuant to the search warrant or pay its claimed value, including the reasonable values of the irreplaceable family photographs. Plaintiff submitted a declaration and five-page “Itemized Price/Loss List” estimating the “replacement cost/value/injury” for these items to be $52,862.92.
Plaintiff ultimately pleaded no contest to sodomy by force, duress, menace and fear on a child under 14 years of age and lewd and lascivious conduct on a child under 14 years of age. He was sentenced to 15 years to life in state prison. (See Scherffius v. Martel (E.D.Cal. Sept. 9, 2008, No. 2:08-cv-0085 MCE JFM (HC)) 2008 U.S. Dist. Lexis 83120.)
Governmental officers who seize an arrestee’s property bear the affirmative duty to provide a receipt, to safeguard, and to pay and deliver such property as the prisoner directs except “when otherwise ordered by a court of competent jurisdiction.” (Gov. Code, § 26640; Minsky v. City of Los Angeles (1974) 11 Cal.3d 113, 119 (Minsky).)
According to plaintiff, “90% of the items had -0- zero evidentiary value, and none was ever found to be contraband or used in the criminal matter.” Declarations submitted by law enforcement in connection with the writ petition indicate that one of the hard drives seized had recently been “wiped” and others contained text documents and web pages about sexual acts, pornographic pictures and videos.
In February 2008, the trial court ruled in plaintiff’s favor on his petition. It found that the property plaintiff sought to have returned “no longer exists because it was destroyed by respondents” and, thus, it is not possible to command its return. In addition, the property was “wrongfully destroyed, ” in that respondents had acted without authority (i.e., without a court order).
Turning to the issue of “the fair and reasonable value of the property or just compensation due” to plaintiff, the trial court rejected plaintiff’s claim for $52,862.92, finding instead that respondents’ contention that the replacement value of the destroyed equipment is $4,188.44 “to be more appropriate and supported by the documentation” submitted by respondents. “Petitioner claims $15,000 for the loss of family memorabilia which he contends were stored on the electronic media. But he has offered no authority for valuing the electronic media in that manner. He also values [CD’s] and [DVD’s] at $15 each. Respondents value floppy disks, [CD’s], [DVD’s] and VHS tapes at a far lower value, which [respondent personnel] declares is the price for blank, recordable media. Petitioner has not substantiated the higher value he claims. Further, respondents set a value for the computer equipment without the hard drives, which they contend were properly withheld due to the illegal nature of the material stored on them. The court concludes respondents’ method of valuing the computer equipment is proper.”
The trial court issued an amended peremptory writ of mandate, directing the County of Sacramento and the Sacramento County Sheriff’s Department, but not the board of supervisors, to compensate plaintiff in the amount of $4,188.44. An amended judgment granting the petition for writ of mandate was entered in favor of plaintiff and against the County of Sacramento and the Sacramento County Sheriff’s Department in May 2008. The County of Sacramento issued a check to plaintiff in the amount of $4,188.44 in satisfaction of the judgment.
The Instant Action for Damages
After judgment in the action for a petition for writ of mandate was satisfied, plaintiff filed the instant action in propria persona in September 2008. He named as defendants the Sacramento County Board of Supervisors; Sacramento County employees Steven B. Page, Hugh McCormick (alleged as an authorized agent of the county), and Lori Greene; James Williams, of the Sacramento Valley Hi Tech Crimes Task Force; and Thomas Koontz, Jacqueline Vaughn, Deborah Kolb, P. Conrad, Doe Davis, A. Fukushima, [Doe] Soparito, and V. Reese, all from the Sacramento County Sheriff’s Department.
The complaint caption also names as defendants C.L. Merkins and J. Lopez, but they are not identified as defendants in the initial allegations of the complaint. Their names do appear later, in the allegations of paragraphs 43 and 44 (“chattels-detailed-bailment”) as persons who “seized” certain “chattels personal.”
Styled as claims for conversion by bailee; “negligent tort-gross negligence by bailee”; “trespass on the case and/or conspiracy to trespass on the case”; “negligence per se negligent duty/negligence as a matter of law shown res ipso loquitur”; and “demand for judgment, ” the complaint seeks compensation for defendants’ destruction of the property seized pursuant to the search warrant, including “[i]rreplaceable family photographs and memorabilia, ” employment portfolios for plaintiff and tax and expense records for plaintiff and his wife. It alleges plaintiff promptly sought return of the seized property, but defendants concealed from him that the property had already been destroyed, delayed and lied to him about its availability, and later delayed the processing of plaintiff’s claim for compensation: Defendants’ failure to follow their own procedures, “accept liability, and make speedy compensation” caused plaintiff injury.
The complaint seeks to recover the “full claimed value of the property destroyed by defendants, a[] minimum of $52,862.92” plus interest, reasonable compensation for “intellectual property, recorded materials, design and manufacture of custom computer labor, [the] reasonable value of irreplaceable family property destroyed, ” and reasonable attorney fees.
In the complaint, plaintiff acknowledges his success in the prior writ proceeding, but states the “special proceeding is not res judicata to [a] civil suit in tort” because the trial court “did not rule on the merits of the tort causes of action”; the writ action reserved his claim to “emotional damages/injury or sentimental value”; and “[r]easonable and just compensation for the intentional destruction of property in bailment, of irreplaceable value, improperly confiscated by defendants, has not been fully made.”
Defendants’ Demurrer
Defendants demurred to the complaint, arguing the entire complaint is barred by the doctrine of res judicata because the issue raised in the complaint plaintiff’s entitlement to reimbursement for damages he sustained when the sheriff’s department failed to return his seized property in a timely fashion was already adjudicated in the writ proceeding and resolved in plaintiff’s favor. The single wrong alleged in both the writ proceeding and the complaint is identical, defendants argued: the destruction (accidental or otherwise) of the computer-related property which rendered the return of the property to plaintiff impossible. And, although they had not been named individually in the writ proceeding, defendants in this action are in privity with those named in the writ proceeding, i.e., the County of Sacramento, the Sacramento County Sheriff’s Department, and the Sacramento County Board of Supervisors.
Alternatively, defendants argued the complaint fails to allege plaintiff complied with applicable government claims procedures. (Gov. Code, § 905 et seq.)
Following a hearing, a transcript of which does not appear in the record on appeal, the trial court sustained defendants’ demurrer without leave to amend, on the ground the action is barred by the doctrine of res judicata. It ordered the action dismissed with prejudice in favor of the defendants.
DISCUSSION
I. Standard of Review
Plaintiff contends the trial court erred in sustaining defendants’ demurrer.
“In an appeal from a judgment dismissing an action after a general demurrer is sustained without leave to amend, our Supreme Court has imposed the following standard of review. ‘The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed “if any one of the several grounds of demurrer is well taken. [Citations.]” [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.]’” (Genesis Environmental Services v. San Joaquin Valley Unified Air Pollution Control Dist. (2003) 113 Cal.App.4th 597, 603, quoting Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966–967; accord, Zelig v. County of LosAngeles (2002) 27 Cal.4th 1112, 1126.)
Additionally, dismissal on res judicata grounds presents a question of law, which we review de novo. (Noble v. Draper (2008) 160 Cal.App.4th 1, 10.)
II. Res Judicata Bars Plaintiff’s Tort Action
In this appeal, plaintiff argues the present action is not barred by res judicata because the writ proceeding was “but a continuance of the ‘criminal’ action” and cannot, as a matter of law, create a res judicata effect as to a subsequent civil proceeding; a writ proceeding is not an action in tort for damages; and plaintiff’s claim for damages was not fully litigated in the writ proceeding because “no jury was [e]mpaneled, no testimony [was] given” and the respondents in the writ proceeding filed no answer until after the peremptory writ issued.
For reasons we will explain, we disagree.
The doctrine of res judicata is divided into two parts. In its narrowest form, claim preclusion or res judicata bars a party to an action in which final judgment has been obtained from bringing a new action against the same opposing party and seeking recovery based on the same cause of action as was relied on in the first action. (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896-897 (Mycogen); Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 828-829 (Vandenberg).) “Cause of action” in this context does not mean “legal theory.” It means “primary right, ” a concept we discuss further below. (Mycogen, at p. 904; Slater v. Blackwood (1975) 15 Cal.3d 791, 795.) Claim preclusion only applies if the parties to the new action are identical with or in privity with the parties to the prior action. (Vandenberg, supra, 21 Cal.4th at p. 828; Armstrong v. Armstrong (1976) 15 Cal.3d 942, 951 (Armstrong).) Privity exists if the party to the new action is “‘“so identified in interest with [a party to the prior action] that he represents the same legal right.”’” (Armstrong, at p. 951.)
Res judicata also includes a broader principle, commonly termed collateral estoppel or issue preclusion, that bars a party from relitigating in a new action an issue that was actually litigated and decided in a prior action. (Mycogen, supra, 28 Cal.4th at p. 896; Vandenberg, supra, 21 Cal.4th at p. 828; Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.) A party in the new action may advance collateral estoppel as a defense against a party who previously litigated the same issue even if the party advancing collateral estoppel was a stranger to the prior action. (Vandenberg, supra, at pp. 828-829; Bernhard v. Bank of America (1942) 19 Cal.2d 807, 812-813; Vanguard Recording Society, Inc. v. Fantasy Records, Inc. (1972) 24 Cal.App.3d 410, 417.)
A primary right may include several claims, none of which may be raised again if claim preclusion applies, even those that were not raised in the prior action. (Mycogen, supra, 28 Cal.4th at p. 904; Slater v. Blackwood, supra, 15 Cal.3d at p. 795.) An attempt to raise a claim in the new action that is within the primary right advanced in the prior action but not actually litigated in that action is called “claim splitting” and is not permitted under claim preclusion. (Mycogen, supra, 28 Cal.4th at pp. 900, 903; Crowley v. Katleman (1994) 8 Cal.4th 666, 681 (Crowley).) Under issue preclusion, by contrast, a party is barred from raising an issue only if it was actually litigated and decided in the prior action. (Branson v. Sun-Diamond Growers (1994) 24 Cal.App.4th 327, 346.)
Because of this difference, the question of whether the parties to the new action are identical or in privity with the parties to the prior action is very important. A party to the new action who was a stranger to the prior action can rely on issue preclusion, but not claim preclusion. To prevail under a theory of issue preclusion, a stranger to the prior action must show not just that the issue in the new case is part of the same primary right the opposing party relied on in the prior action, but that it is the same as an issue that was actually litigated and decided in the prior action.
In this case, plaintiff does not dispute that all of the defendants in the instant action are in privity with the respondents in the earlier writ proceeding. We agree. Defendants in this action the Sacramento County Board of Supervisors, and various individual employees of Sacramento County, the Sacramento Valley Hi Tech Crimes Task Force or the Sacramento County Sheriff’s Department are “‘“so identified in interest with”’” the three respondents in the writ proceeding the County of Sacramento, its board of supervisors and the Sacramento County Sheriff’s Department that they “‘“represent[] the same legal right”’” and are in privity. (Armstrong, supra, 15 Cal.3d at p. 951.) Accordingly, claim preclusion or res judicata can apply. (Ibid.)
Accordingly, we turn to the application of claim preclusion to the facts of this case. Claim preclusion bars a cause of action if (1) the same cause of action was advanced in a prior action; (2) the prior action resulted in a final judgment on the merits; and (3) the parties to the present action are the same as, or in privity with, the parties to the prior action. (Busick v. Workmen’s Comp. Appeals Bd. (1972) 7 Cal.3d 967, 973-974; Brinton v. Bankers Pension Services, Inc. (1999) 76 Cal.App.4th 550, 556.) As we noted above, we find and plaintiff does not dispute the identity, or privity-of-parties element. The “final judgment” on the merits element is met by the court’s entry of its “Amended Judgment Granting Petition for Writ of Mandate”; plaintiff does not contend otherwise. The only remaining question is whether the prior petition for writ of mandate and present action can be said to advance the same cause of action.
The definition of a “cause of action” is much broader than a single legal theory. As the Supreme Court explained in Crowley, supra, 8 Cal.4th 666:
“The primary right theory is a theory of code pleading that has long been followed in California. It provides that a ‘cause of action’ is comprised of a ‘primary right’ of the plaintiff, a corresponding ‘primary duty’ of the defendant, and a wrongful act by the defendant constituting a breach of that duty. [Citation.] The most salient characteristic of a primary right is that it is indivisible: the violation of a single primary right gives rise to but a single cause of action....
“As far as its content is concerned, the primary right is simply the plaintiff’s right to be free from the particular injury suffered. [Citation.] It must therefore be distinguished from the legal theory on which liability for that injury is premised: ‘Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief.’ [Citation.] The primary right must also be distinguished from the remedy sought: ‘The violation of one primary right constitutes a single cause of action, though it may entitle the injured party to many forms of relief, and the relief is not to be confounded with the cause of action, one not being determinative of the other.’ [Citation.]
“The primary right theory... is invoked... when a plaintiff attempts to divide a primary right and enforce it in two suits. The theory prevents this result by either of two means: (1) if the first suit is still pending when the second is filed, the defendant in the second suit may plead that fact in abatement [citations]; or (2) if the first suit has terminated in a judgment on the merits adverse to the plaintiff, the defendant in the second suit may set up that judgment as a bar under the principles of res judicata.” (Crowley, supra, 8 Cal.4th at pp. 681-682; see also Mycogen, supra, 28 Cal.4th at p. 904.)
Thus, judgment in the prior writ proceeding bars the current lawsuit if both seek to vindicate the same primary right.
The trial court on demurrer answered this question in the affirmative: It found that the writ proceeding and the current lawsuit arose from the same injury to a single primary right, and therefore concluded that the instant proceeding was barred.
We agree. In the writ proceeding, plaintiff asserted the right to the return of the computer equipment, peripherals and disks seized and wrongfully retained by sheriff’s department personnel; alternatively, plaintiff asserted the right to payment of the equipment’s claimed value of $52,862.92, which he asserted included $15,000 for irreplaceable family memorabilia. In the current action, plaintiff also asserts the right to damages for the loss of the seized computer equipment and its contents; here, too, he estimates damages of $52,862.92, although the complaint suggests that sum does not include the value of the family memorabilia content. Although the actual dollar value of the alleged loss may be slightly different, the cause of action is the same. (Cf. Crowley, supra, 8 Cal.4th at pp. 681-682.)
Plaintiff is mistaken when he asserts that “res judicata is not applicable where [the] prior action is for [the] return of seized property in [a] criminal action.” What matters is that plaintiff asserted a claim for the value of the seized materials in the writ proceeding, and does the same thing in the present action. His reliance on Ensoniq Corp. v. Superior Court (1998) 65 Cal.App.4th 1537, 1550 for the proposition that “the rule that the summary remedy of a motion for return of seized property cannot be turned into a civil proceeding for conversion” is misplaced. In Ensoniq, an individual sought the prosecution’s return of intellectual property seized pursuant to a search warrant, after the prosecution decided it could not prove the property was stolen. The individual’s former employer then sought to oppose the motion with evidence that it was the rightful owner of the property. In the passage quoted by plaintiff, the court in Ensoniq ruled the former employer had no standing to inject itself into that proceeding. (Ibid.)
Plaintiff’s reliance on Minsky, supra, 11 Cal.3d 113 is similarly unavailing. In Minsky, the sole question was whether the claim by an arrestee to recover cash seized during an arrest was subject to the government claims requirements. (Id. at p. 120.) Because a claim for the “specific recovery of property” is not a claim for “money or damages” contemplated by the government claim statutes, compliance with the claims statutes is not required. (Id. at pp. 121-122.) Minsky noted correctly that “[a] defendant in a criminal proceeding clearly has the right to obtain mandamus to compel the return of personal property wrongfully withheld by the custodial officers” and “[m]andamus lies in the criminal proceeding even after disposition of the criminal charges.” (Minsky, at p. 123.)
In contrast to the arrestee in Minsky, plaintiff sought in the mandamus proceeding to both recover the seized property or, alternatively, to recover its value. And he received what the trial court found to be the value of the seized property, based on competing valuations submitted by plaintiff and respondents in the writ proceeding. Having done so, he may not revisit that claim in this action.
DISPOSITION
The judgment of dismissal is affirmed. Respondents are awarded costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
We concur: BLEASE, Acting P. J., NICHOLSON, J.