Close v. Tan CA1/3 ( 2021 )

Filed 10/6/21 Close v. Tan CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publi-
cation or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or-
dered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
LISA MARIE CLOSE,
Plaintiff and Appellant,
A160283
v.
STUART K. TAN, (Solano County Super. Ct.
No. FCS052549)
Defendant and Respondent.
Plaintiff Lisa Marie Close sued defendant Stuart K. Tan, a police
officer, for assault, battery, and false arrest. Tan obtained judgment on the
pleadings on the ground of collateral estoppel, also known as issue
preclusion.1 On appeal, Close argues that issue preclusion does not bar her
claims. We shall reverse the judgment in part.
1 As a note regarding terminology, “issue preclusion” and “collateral
estoppel” have, for some time, been used interchangeably. (See, e.g.,
Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 505; Pike v. Hester (9th
Cir. 2018) 891 F.3d 1131, 1138.) In 2018, the California Supreme Court
indicated it would “use ‘issue preclusion’ in place of ‘direct or collateral
estoppel.’ ” (Samara v. Matar (2018) 5 Cal.5th 322, 326.) We strive to do the
same, though we refer to collateral estoppel at times because the lower court
and the parties use that term, as does much case law.
1
FACTUAL AND PROCEDURAL BACKGROUND
During a medical appointment at Sutter Regional Medical Center,
Close and her doctor had a disagreement about her course of treatment.
Thereafter, Close exited the exam room, spoke with hospital personnel, then
returned to the exam room to retrieve her belongings. A hospital security
guard informed Close that he would escort her from the premises and a police
officer was on the way. The guard asked her to exit the exam room “ ‘at least
twice.’ ”
Officer Tan arrived at the scene in response to a report that a patient
refused to exit an exam room. Tan spoke to the on-site security guard who
affirmed that Close refused his request to leave. Before Tan engaged with
Close, he confirmed the guard’s report with medical care providers, who said
they wanted Close escorted from the premises. Tan then spoke to Close,
saying “ ‘some things to [her] about trespassing’ ” and asked her to leave
several times, but she refused to leave the exam room. After about fifteen
minutes of talking, Tan engaged his body camera. After a few more minutes
of Close refusing to leave, a physical struggle between Tan and Close ensued,
during which he grabbed her, pushed her to the ground, and twisted her arm
causing severe pain.
A. The Federal District Court Action
Close initially sued Tan in federal district court under 42 United States
Code section 1983 (hereafter “section 1983”) for excessive force and unlawful
detention and arrest, and also under state law for assault, battery, and false
arrest. Tan moved for summary judgment, arguing that Close’s section 1983
claims were meritless and that he was entitled to qualified immunity.
The district court granted summary judgment. With regard to Close’s
excessive force claim, the district court found Tan was entitled to qualified
2
immunity because: (1) Tan “only used that level of force which a reasonable
officer would believe to be necessary under the circumstances”; (2) Close “did
not have a clearly established right to be free of some minimal amount of
force incident to her arrest”; and (3) a reasonable officer in Tan’s position
reasonably could have believed the force used was not excessive. As for the
unlawful arrest claim, the district court found qualified immunity applicable
because when Tan arrested Close, he had a reasonable belief there was
probable cause to arrest her for criminal trespass in violation of Penal Code
section 602, subdivision (o). After granting summary judgment and
dismissing Close’s section 1983 claims with prejudice, the district court
dismissed her state law claims without prejudice to refiling in state court.
Close appealed to the Ninth Circuit Court of Appeals.
B. The State Court Action
While her federal appeal was pending, Close filed the instant state
action against Tan for assault, battery, and false arrest. Tan moved for
judgment on the pleadings and requested judicial notice of the district court’s
order granting summary judgment on Close’s section 1983 claims. Tan
contended the district court’s summary judgment and the doctrine of
collateral estoppel barred Close’s claims.
Close opposed Tan’s motion, arguing collateral estoppel did not apply
because some issues were not fully litigated or considered; she was not given
a full and fair opportunity to litigate her case; and new evidence was
available. The trial court granted Tan’s motion without leave to amend and
entered judgment in Tan’s favor. Close appealed.
C. The Ninth Circuit Decision
During the pendency of this appeal, the Ninth Circuit Court of Appeals
issued its decision in Close’s federal case. In an unpublished memorandum,
3
the Ninth Circuit upheld summary judgment on Close’s section 1983 claim
for unlawful arrest. The court, however, reversed summary judgment on the
section 1983 claim for excessive force, finding genuine issues of disputed fact
as to whether Tan used excessive force.
DISCUSSION
A. Judicial Notice of the Ninth Circuit Decision
Close requests judicial notice of the Ninth Circuit’s decision partially
reversing the district court’s summary judgment order. (Evid. Code, §§ 452,
subd. (d)(2), 459, subd. (a).) Tan filed no opposition to this request. Given
the relevance of the decision to the issues raised on appeal, we hereby grant
the request. We have also received and fully considered the parties’
supplemental briefing addressing the effect of the Ninth Circuit decision in
this appeal.
B. Judgment on the Pleadings
A defendant is entitled to judgment on the pleadings if the complaint
fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc.,
§ 438, subd. (c)(1)(B)(ii); see Barker v. Hull (1987) 191 Cal.App.3d 221, 227
[trial court properly applied collateral estoppel to grant motion for judgment
on the pleadings].) “On appeal, we review the judgment on the pleadings de
novo, applying the same test applied by the trial court. [Citations.] Under
that test, we consider all the pleadings, together with matters that may be
judicially noticed, and determine whether it appears the moving party is
entitled to judgment as a matter of law.” (Hardy v. America’s Best Home
Loans (2014) 232 Cal.App.4th 795, 802.)
“ ‘Collateral estoppel precludes relitigation of issues argued and decided
in prior proceedings.’ ” (Hernandez v. City of Pomona, supra, 46 Cal.4th at
p. 511.) The doctrine applies “only if several threshold requirements are
4
fulfilled. First, the issue sought to be precluded from relitigation must be
identical to that decided in a former proceeding. Second, this issue must
have been actually litigated in the former proceeding. Third, it must have
been necessarily decided in the former proceeding. Fourth, the decision in
the former proceeding must be final and on the merits. Finally, the party
against whom preclusion is sought must be the same as, or in privity with,
the party to the former proceeding. [Citations.]’ ” (Ibid.) The party asserting
the doctrine bears the burden to prove that these requirements are met.
(Lucido v. Superior Court (1990) 51 Cal.3d 335, 341 (Lucido).)2 Even where
these requirements are satisfied, courts must still look to the public policies
underlying the doctrine—“preservation of the integrity of the judicial system,
promotion of judicial economy, and protection of litigants from harassment by
vexatious litigation”—before concluding it should be applied. (Id. at p. 343.)
“ ‘In deciding whether the doctrine is applicable in a particular situation a
court must balance the need to limit litigation against the right of a fair
adversary proceeding in which a party may fully present his case.’ ” (People
v. Vogel (2007) 148 Cal.App.4th 131, 136.)
1. Assault and Battery
For purposes of issue preclusion, a federal court’s ruling on summary
judgment is only considered final as long as it has not been reversed on
appeal, or modified or set aside in the court of rendition. (Lumpkin v. Jordan
(1996) 49 Cal.App.4th 1223, 1230–1231.) Here, the finality requirement is
2 The elements for issue preclusion are generally the same under federal
law and would appear to yield the same result. (See, e.g., Janjua v. Neufeld
(9th Cir. 2019) 933 F.3d 1061, 1065 [“For issue preclusion to apply, four
conditions must be met: ‘(1) the issue at stake was identical in both
proceedings; (2) the issue was actually litigated and decided in the prior
proceedings; (3) there was a full and fair opportunity to litigate the issue; and
(4) the issue was necessary to decide the merits.’ ”].)
5
not met because the Ninth Circuit reversed summary judgment as to Close’s
excessive force claim. Thus, even assuming, as Tan contends, that the
federal district court made findings dispositive of Close’s state claims for
assault and battery when granting summary judgment on her section 1983
claim for excessive force, those findings no longer support application of the
issue preclusion bar. Tan’s supplemental briefing offers no counterargument
to this point.
In light of the Ninth Circuit’s decision, we reverse the grant of
judgment on the pleadings as to the causes of action for assault and battery.
2. False Arrest
We turn to whether issue preclusion bars litigation of the false arrest
claim.
A cause of action for false arrest by a peace officer requires proof of
three elements: (1) the defendant arrested the plaintiff without a warrant,
(2) the plaintiff was actually harmed, and (3) the defendant’s conduct was a
substantial factor in causing the harm. (Levin v. United Air Lines, Inc. (2008)
158 Cal.App.4th 1002, 1018; see CACI No. 1401.) However, Penal Code
section 847, subdivision (b)(1), provides that no civil liability or cause of
action shall arise against an officer “acting within the scope of his or her
authority, for false arrest or false imprisonment arising out of any arrest”
where the “arrest was lawful, or the peace officer, at the time of the arrest, had
reasonable cause to believe the arrest was lawful.” (Italics added.)
The district court found that Tan was entitled to qualified immunity as
to Close’s section 1983 claim for unlawful arrest because Tan had a
reasonable belief there was probable cause to arrest her for criminal trespass.
In reaching that conclusion, the court explained it was evaluating the “second
prong” of the qualified immunity analysis in the context of an unlawful arrest
6
claim pursuant to the standard set out in Rosenbaum v. Washoe County (9th
Cir. 2011) 663 F.3d 1071 (Rosenbaum). As Rosenbaum explained: “An officer
who makes an arrest without probable cause . . . may still be entitled to
qualified immunity if he reasonably believed there to have been probable
cause. [Citation.] [¶] In the context of an unlawful arrest, then, the two
prongs of the qualified immunity analysis can be summarized as: (1) whether
there was probable cause for the arrest; and (2) whether it is reasonably
arguable that there was probable cause for arrest—that is, whether reasonable
officers could disagree as to the legality of the arrest such that the arresting
officer is entitled to qualified immunity.”3 (663 F.3d at p. 1076, italics added;
id. at p. 1078 [framing the reasonableness question in somewhat different
ways].)
In granting judgment on the pleadings as to Close’s false arrest claim,
the trial court indicated the district court’s finding was dispositive on the
application of the civil immunity provision set forth in Penal Code
section 847, subdivision (b)(1). Specifically, the trial court determined:
3 Generally, a police officer’s entitlement to qualified immunity is
resolved by a two-prong inquiry: first, a court considers whether the alleged
facts show the officer’s conduct violated a constitutional right; and second,
the court considers whether the right was clearly established at the time of
the alleged violation. (Saucier v. Katz (2001) 533 U.S. 194, 201.) While it is
“often appropriate” to assess these prongs sequentially, it is not mandatory to
do so and a determination on the second prong may be dispositive. (Pearson
v. Callahan (2009) 555 U.S. 223, 236 [overruling Saucier’s mandate that the
prongs be addressed in order].) Thus, after observing that the second prong
inquiry “turns on the ‘objective legal reasonableness of the [officer’s] action,
assessed in light of the legal rules that were clearly established at the time it
was taken,’ ” the high court in Pearson determined that qualified immunity
applied in the case before it because the officers reasonably believed, based
on federal authorities at the time, that their conduct complied with the law.
(Pearson, at pp. 244–245.)
7
“There can be no liability for false arrest or false imprisonment when a police
officer has reasonable cause to believe the arrest was lawful. (Pen. Code
§ 847(b)(l); O’Toole v. Superior Court (2006) 140 Cal.App.4th 488, 510–511.)
[This] pivotal issue[] w[as] previously decided in the federal case.”
We agree with the trial court that the district court’s ruling is
dispositive. As explained below, the elements of issue preclusion have all
been met.
First, “[t]he ‘identical issue’ requirement [which] addresses whether
‘identical factual allegations’ are at stake in the two proceedings” is plainly
fulfilled. (Lucido, supra, 51 Cal.3d at p. 342; Frank v. United Airlines, Inc.
(9th Cir. 2000) 216 F.3d 845, 851.)
Second, the issue of whether it was reasonable for Tan to believe that
the arrest was lawful was “actually litigated” in the district court. “An issue
was ‘actually litigated’ . . . if it was properly raised, submitted for
determination, and decided in the prior proceeding.” (Bridgeford v. Pacific
Health Corp. (2012) 202 Cal.App.4th 1034, 1042; Janjua v. Neufeld, supra,
933 F.3d at p. 1066.)
Third, the issue of Tan’s reasonable belief was “necessarily decided” in
the federal action. (Lucido, supra, 51 Cal.3d at p. 342; Resolution Trust Corp.
v. Keating (9th Cir. 1999) 186 F.3d 1110, 1115.) As noted earlier (see fn. 3,
ante), evaluation of whether qualified immunity applies can begin and end
with a discussion of the second prong, which is what the district court did
when it granted summary judgment upon finding that Tan had a reasonable
belief there was probable cause to arrest.
Fourth, the decision of the district court on this subject is final and on
the merits. Here, the Ninth Circuit affirmed summary judgment as to Close’s
section 1983 claim for false arrest based on the same second prong
8
Rosenbaum analysis that the district court relied on. (Lumpkin v. Jordan,
supra, 49 Cal.App.4th at pp. 1230–1231.)
Fifth, there is no question that the same party or privity requirement is
satisfied.
In disputing the application of issue preclusion, Close suggests the trial
court viewed the district court’s determination that Tan had a reasonable
belief there was probable cause to arrest as a finding concerning the first
prong of Rosenbaum’s qualified immunity analysis, i.e., as a finding of
probable cause.4 Close then argues that even if the district court made a
finding of probable cause under the first prong, that finding was unnecessary
to the adjudication of the qualified immunity issue and has no preclusive
effect given the Ninth Circuit’s affirmance on the second prong finding only.
We are not persuaded. In the first place, the record is reasonably clear
that the district court did in fact make a finding on the second prong of the
Rosenbaum analysis, which evaluates whether the officer reasonably believed
there to have been probable cause to arrest. (See Rosenbaum, supra, 663
F.3d at p. 1076.) Thus, the decisions of the district court and the Ninth
Circuit are aligned on the matter. And while we do not agree that the trial
court misconstrued the district court’s finding, any such error has no effect on
our de novo review of the judgment on the pleadings. (Hardy v. America’s
Best Home Loans, supra, 232 Cal.App.4th at p. 802.)
More to the point, Close never addresses the language of subdivision
(b)(1) of Penal Code section 847, which provides for peace officer immunity
against a claim of false arrest when “the peace officer, at the time of the arrest,
had reasonable cause to believe the arrest was lawful.” (Italics added.) Nor
4 Tan also appears to assume the district court’s finding was a finding of
probable cause.
9
does she argue in her opening and reply briefs that a determination
concerning Tan’s reasonable belief does not qualify Tan for immunity under
that statutory provision.5 Thus, it appears all the requirements for
application of the collateral estoppel doctrine are satisfied here.6
5 After we issued a tentative opinion, and near the date for oral
argument following a lengthy continuance of that date, Close filed a request
for leave to file supplemental briefing and a proposed supplemental brief. In
short, Close sought leave to argue the district court’s determination that Tan
had a reasonable belief that there was probable cause to arrest did not
qualify Tan for immunity under section 847, subdivision (b)(1), given the
interpretation of that statute in Cornell v. City & County of San Francisco
(2017) 17 Cal.App.5th 766 (Cornell). Close indicated she discovered Cornell
after we issued our tentative opinion, and in preparation for oral argument.
Close, however, never raised this argument in the trial court below,
despite the trial court’s explicit reliance on section 847, subdivision (b)(1), as
the basis for its issue preclusion ruling as to the false arrest claim. Nor did
she raise the argument in her opening appellate brief or her reply brief. The
proper interpretation of section 847, subdivision (b)(1), is an issue that she
never previously raised, and one that is open to differing views. (Compare
Cornell, supra, 17 Cal.App.5th 766 with Venegas v. County of Los Angeles
(2007) 153 Cal.App.4th 1230, 1241–1242, 1246; O’Toole v. Superior Court,
supra, 140 Cal.App.4th at p. 511, citing Galvin v. Hay (9th Cir. 2004) 374
F.3d 739, 758.) Given the tardy manner in which Close raises this claim, we
deem it forfeited and denied the request for leave to file supplemental
briefing.
6 Close belatedly contends in her reply brief that issue preclusion should
not apply because the federal district court “did not fully and fairly litigat[e]
the issue of whether Tan violated [her] right to be free from false arrest and
battery under either the state or federal constitutional standard because the
court went directly to the second prong of qualified immunity.” Close’s reply
brief also argues that fairness militates against application of issue
preclusion because the federal court dismissed her state claims without
prejudice to her pursuing them in state court, and the state court is not
reaching the merits. These contentions, however, come too late and will not
be considered. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836,
852, fn. 10.)
10
Finally, we have looked at the public policies underlying issue
preclusion—“preservation of the integrity of the judicial system, promotion of
judicial economy, and protection of litigants from harassment by vexatious
litigation”—and discern no reason why the doctrine should not apply in this
case. (Lucido, supra, 51 Cal.3d at p. 343; People v. Vogel, supra, 148
Cal.App.4th at p. 136.)
In sum, judgment on the pleadings was properly granted as to Close’s
state claim for false arrest.
DISPOSITION
The judgment is reversed in part. The trial court is directed to vacate
its order granting Tan’s motion for judgment on the pleadings on the assault
and battery causes of action and to enter a new order denying the motion to
that extent. The judgment is affirmed in all other respects. The parties shall
bear their own costs on appeal.
11
_________________________
Fujisaki, Acting P. J.
WE CONCUR:
_________________________
Jackson, J.
_________________________
Chou, J.*
A160283/Close v. Tan
*Judge of the Superior Court of San Mateo County, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
12