Mulvihill v. McDavid CA4/1

Filed 1/18/22 Mulvihill v. McDavid CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
GREGORY MULVIHILL, D077204
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2017-00000618-
CU-PO-NC)
WELDON MCDAVID,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Jacqueline M. Stern, Judge. Affirmed.
Weldon McDavid, in pro. per., for Defendant and Appellant.
Law Offices of William C. Halsey, William C. Halsey and William
Lionel Halsey for Plaintiff and Respondent.
Self-represented defendant Weldon McDavid is currently incarcerated
in state prison after he was convicted of conspiring and attempting to murder
plaintiff Gregory Mulvihill. We affirmed the judgment on appeal. While the
criminal proceedings were pending, Mulvihill brought this civil action against
McDavid seeking damages for assault and battery. Following McDavid’s
criminal conviction, and based on his various failures to defend against
Mulvihill’s civil lawsuit, the superior court struck his answer and ultimately
entered a default judgment, from which McDavid now appeals.
It is self-evident that an incarcerated self-represented civil litigant
faces significant obstacles in attempting to defend against a lawsuit. Many of
these are a function of self-represented status and the lack of financial
resources. But these impediments are only compounded by the added
difficulties an incarcerated individual faces in understanding the court
proceedings and responding appropriately. In two thoughtfully composed
handwritten briefs, McDavid catalogs these obstacles as he strenuously
complains about how the legal system has treated him.
While we can appreciate McDavid’s frustration with what may appear
to be arcane procedural rules and confusing legal terminology, in the end this
appeal is not so much about how and when McDavid can present his defense
to a civil claim, but whether or to what extent he has a defense at all. Even if
we were to reverse the judgment and vacate the default, and we do not mean
to suggest that is the appropriate result, the “defense” McDavid wants to
present—that his “conviction was obtained by false evidence”—is foreclosed
by the final judgment in his criminal case, entered in a proceeding in which
he was fully represented by legal counsel. Unless and until the criminal
conviction is successfully challenged, highly unlikely now that McDavid has
2
exhausted all direct appellate attacks, reversing the judgment in this civil
case would be an idle act. Instead, we are compelled to affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On a moonless night in September 2016, McDavid shot Mulvihill in the
chest with an AR-15 assault rifle, having lured him to a remote location with
a pretext phone call. The evidence in his criminal trial showed that McDavid
agreed with codefendant Diana Lovejoy, with whom he had an extra-marital
relationship, on a plan to kill Mulvihill, Lovejoy’s ex-husband. McDavid (a
retired Marine Corps shooting instructor) admitted to shooting Mulvihill, but
testified he was only trying to hit the flashlight that Mulvihill was carrying
and did not intend to injure him. Rejecting this testimony, the jury found
both McDavid and Lovejoy guilty of attempted murder and conspiracy to
commit murder. (See People v. Lovejoy (July 28, 2020, D073477) [nonpub.
opn.] (Lovejoy).)1
Nearly a year before the criminal trial, Mulvihill filed a civil lawsuit
against McDavid and Lovejoy for assault and battery. McDavid was initially
represented by counsel. His lawyer substituted out of the case shortly after
the verdict in the criminal case, leaving McDavid to represent himself. When
McDavid failed to respond to discovery, the court granted Mulvihill’s request
to deem admitted the first set of requests for admission. (See Code Civ. Proc.,
§ 2033.280, subd. (b).) Even so, the court denied Mulvihill’s accompanying
motion for terminating sanctions.
1 Because we deal with the preclusive effect of the judgment in
McDavid’s criminal case, we take our description of the underlying facts from
our prior opinion in that case.
3
A little more than a month later, at a continued trial readiness
conference where no one appeared on his behalf, the court denied McDavid’s
written request for a trial continuance, struck his answer, and entered
default. Lovejoy’s default was also entered at the same time. Following a
default prove-up hearing, the court entered judgment against McDavid and
Lovejoy, awarding $1,000,000 in compensatory damages jointly and severally.
It also awarded $500,000 in punitive damages against each defendant
individually.
DISCUSSION
In a two-page opening brief, McDavid attempts to challenge the
adverse judgment. He admits that he did not respond to discovery—and
specifically the requests for admission—but asserts they “did not make sense”
and he “ignored them rather than attempt to correct and answer them.” He
decries his lack of legal representation and describes how he sought to delay
the proceedings as he tried unsuccessfully to deal with the various obstacles
he faced as an incarcerated self-represented litigant, including a lack of
access to the internet and relevant documents. As a result, he says, he was
“afforded no opportunity to defend [his] interests” or to contest the “false and
misleading evidence” that led to his criminal conviction. He makes similar
claims in his reply brief, criticizing his criminal defense lawyer and
maintaining that if only “[g]iven the opportunity” he could “prove the
allegations against [him] false.” 2
McDavid largely fails to explain how the superior court erred in
deeming admitted Mulvihill’s first set of requests for admission. And while
2 In contrast to contentions about his liability, McDavid’s appellate
briefing makes no argument that he was improperly denied the opportunity
to contest the amount of damages.
4
we can appreciate why he might question the denial of his request to
continue trial after he explained that, as a result of his incarcerated status,
he could neither attend the trial personally nor hire a lawyer to represent
him, McDavid has a more fundamental problem.
In Teitelbaum Furs, Inc. v. Dominion Ins. Co. (1962) 58 Cal.2d 601(Teitelbaum), the Supreme Court explained the doctrine of issue preclusion as
applied to questions in a civil case that were already litigated in a related-
but-earlier criminal proceeding. Justice Traynor’s opinion stated that “any
issue necessarily decided in a prior criminal proceeding is conclusively
determined as to the parties if it is involved in a subsequent civil action.”
(Id. at p. 607.) “[I]ssue preclusion applies: (1) after final adjudication (2) of
an identical issue (3) actually litigated and necessarily decided in the first
suit and (4) asserted against one who was a party in the first suit or one in
privity with that party.” (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th
813, 825.) McDavid has exhausted his direct appellate remedies.3 His appeal
to this court was decided in July 2020, and his petition for review to the
California Supreme Court was denied on September 30 of that year. His
attempted murder liability was actually litigated and necessarily decided in
the criminal action, in which he was the defendant. The only remaining
question is whether the criminal case resolved “an identical issue.”
3 McDavid also made several unsuccessful indirect attacks on his
conviction by means of petitions for writ of habeas corpus asserting, among
other things, the erroneous admission of evidence, prosecutorial misconduct,
and ineffective assistance of counsel. (In re McDavid (Apr. 23, 2021
D078791) [petn. den.]; In re McDavid (May 25, 2021, D078948) [petn. den.];
see generally Mueller v. J. C. Penney Co. (1985) 173 Cal.App.3d 713, 719‒721
[theoretical availability of collateral attack, without more, does not preclude
application of collateral estoppel].)
5
Here, in convicting McDavid of attempted murder and conspiracy to
commit murder, the jury in the criminal case necessarily determined that he
shot Mulvihill with an intent to kill. Proof of these facts establishes his
liability for battery. (See So v. Shin (2013) 212 Cal.App.4th 652, 668‒669
(So).) Both the required mental state and the burden of proof on the criminal
charges of which he was convicted are greater than is required to prove the
civil claim. Under the circumstances of this case, the critical issues in the
civil action were “necessarily decided” adversely to McDavid in his prior
criminal proceeding. Had this matter proceeded to trial, McDavid would not
have been permitted to contest the facts that establish his civil liability as
already determined by the criminal jury.4
Newman v. Larsen (1964) 225 Cal.App.2d 22 (Newman) illustrates the
principle. In that case, a criminal defendant was convicted of assault with a
dangerous weapon. Thereafter, the victim brought a civil suit against the
defendant for assault and battery in an attempt to recover for the injuries he
suffered in the assault. Relying on Teitelbaum, the appellate court affirmed a
judgment in favor of the plaintiff, approving the trial court’s conclusion that
“the issue of liability of defendant for committing an assault with a
dangerous weapon upon the person of plaintiff was established by his former
conviction in the criminal proceeding and was binding upon the court in the
civil proceeding.” (Newman, at p. 23.)
4 In addition to the act (the shooting) and intent, civil liability for battery
also requires proof that the plaintiff was harmed by the touching. (So, supra,
212 Cal.App.4th at p. 669.) Here, in his trial testimony McDavid
acknowledged that his shot hit Mulvihill in the chest. (Lovejoy, supra,
D073477.) McDavid’s trial testimony amounts to a judicial admission he
cannot now dispute, and his briefing does not suggest otherwise. (See Gelfo
v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 47‒48 [judicial
admission resulting from trial testimony].)
6
Just as the criminal judgment established the defendant’s civil liability
in Newman, so it does here. Even if the court erred in striking McDavid’s
answer and entering his default, he fails to establish that he suffered any
cognizable prejudice as a result.
DISPOSITION
The judgment is affirmed. Respondent shall recover costs.
DATO, J.
WE CONCUR:
McCONNELL, P. J.
DO, J.
7