Davies v. Iles CA3

Filed 6/6/23 Davies v. Iles CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
MATTHEW DAVIES, C095731
Plaintiff and Appellant, (Super. Ct. No.
STK-CV-UPI-2021-0002707)
v.
MAX ILES et al.,
Defendants and Respondents.
This appeal is taken from a judgment of dismissal after an order sustaining a
demurrer without leave to amend. The primary issue before us is whether a trial court
may give preclusive effect in a subsequent civil action to a criminal conviction resulting
from a guilty plea arising out of the same incident. Plaintiff and appellant Matthew
Davies (Davies) contends that while his guilty plea may be admissible in a later civil
action as an admission of the crimes with which he was charged, it is not conclusive of all
factual issues that may arise in the civil litigation he is bringing against the other parties
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involved in the underlying incident. Davies contends the trial court erred by reaching the
opposite conclusion. We agree and therefore reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On Halloween night, October 31, 2018, Davies was involved in a physical
altercation with defendants and respondents Max Iles, Mary Iles, and Samantha Iles
(collectively, defendants) in a residential neighborhood in Stockton, during which Davies
struck defendant Max Iles with a drinking glass. Davies subsequently was arrested and
charged with one count of felony assault upon Max Iles (Pen. Code, § 245, subd. (a)(4)),
with a great bodily injury enhancement (Pen. Code, § 12022.7, subd. (a)); and one count
of misdemeanor battery upon Mary Iles. (Pen. Code, § 242.) The information further
alleged a prior prison term enhancement under Penal Code section 667.5, subdivision (b).
Davies was not charged with any offenses involving Samantha Iles.
On October 9, 2019, Davies pleaded guilty to each of the charges and admitted the
enhancements. He was sentenced to five years of formal probation.
On March 26, 2021, Davies filed a civil complaint against defendants arising out
of the incident on October 31, 2018. Davies thereafter filed a first amended complaint,
which alleged the following.
On October 31, 2018, Davies left a party, drink in hand, to meet his family and
friends who were trick-or-treating in the neighborhood. At the time, Davies was dressed
in costume as the scary clown from the novel and movie, “It.” When Davies spotted his
family and friends across the street, he began to approach them “in a dancelike motion
. . . with arms outstretched and making a ‘Roar!’ sound . . . .” As Davies crossed the
street, he was “suddenly and unexpectedly accosted” by a different group of trick-or-
treaters that included defendants Max Iles, Mary Iles (Max’s mother), and Samantha Iles
(Max’s sister). Defendants ran up to Davies and shouted at him to stop his behavior.
Upon hearing their shouts, Davies “immediately came to a stop and did not touch
Max, Mary, Samantha, or any member of the Iles Group.” Despite “standing still and
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posing no threat . . . at all,” the complaint alleges that defendants encircled Davies and
physically attacked him. The complaint specifically alleges that Mary Iles attempted to
trip Davies by kicking his legs and that she grabbed Davies’s head and pulled his hair.
The complaint further alleges that Max Iles shoved Davies and struck Davies with a
closed fist on the right side of the head. The complaint alleges that all three defendants
intentionally struck Davies and that Davies was forced to defend himself against their
attacks. The complaint alleges that Davies was “attempting to shake off his attackers”
when he swung his hand that was holding the drink glass and struck Max Iles in the head,
causing a large cut to the left side of Max’s face.
The first amended complaint alleges causes of action against each of the three
defendants for battery, assault, intentional infliction of emotional distress (IIED), and
negligent infliction of emotional distress (NIED). The complaint seeks to recover
compensatory damages from each defendant, and punitive and exemplary damages from
defendants Max Iles and Mary Iles.
Defendants demurred to the first amended complaint and each cause of action
alleged therein on the ground that it failed to state facts sufficient to constitute a cause of
action against any defendant. In support of the demurrer, defendants requested the court
take judicial notice of various records from Davies’s criminal case (People v. Davies, San
Joaquin County Superior Court case No. STK-CR-FE-2019-2996), including the
accusatory pleadings and an excerpt of the plea hearing transcript.1 Davies filed an
opposition to the demurrer and the request for judicial notice.
1 Defendants did not request judicial notice of the entire criminal court file, or
furnish the trial court with sufficient information to enable it to take notice of the entire
criminal court file. (In re Marriage of Brewster & Clevenger (2020) 45 Cal.App.5th 481,
498.) Thus, in reviewing the correctness of the judgment, we shall consider only those
documents that were included in the request for judicial notice and that are part of the
record on appeal. (Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 737.)
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Following a hearing on August 6, 2021, the trial court issued a minute order
granting the request for judicial notice and sustaining the demurrer in its entirety without
leave to amend. The court directed defendants to prepare a formal order.
On October 1, 2021, a signed formal order was filed stating that the “demurrer is
sustained without leave to amend; otherwise be dismissed.” Defendants served notice of
entry of the order on October 6, 2021. On November 19, 2021, Davies filed a notice of
appeal from the October 6 notice of entry of the order. In December 2021, this court
dismissed the appeal on the ground it was not appealable.
On January 28, 2022, a final judgment of dismissal after order sustaining demurrer
was filed. Notice of entry of judgment was served and filed on February 2, 2022. Davies
timely filed a notice of appeal from the judgment of dismissal on February 3, 2022.
DISCUSSION
I
Timeliness of Appeal
As a threshold issue, we dispose of defendants’ argument that this appeal should
be dismissed because it was filed more than 60 days after notice of entry of the October
1, 2021 order sustaining the demurrer, which defendants contend was an appealable
order.
We previously determined that the October 2021 order was not an appealable
order and therefore dismissed Davies’s appeal of that order as premature. We stand by
that conclusion. Although the trial court’s order contains language that the case
“otherwise be dismissed,” we construe this to mean an order of dismissal would be issued
in the future, not as an immediate order of dismissal. The case subsequently was
dismissed in January 2022 when the court entered its judgment of dismissal, and Davies
timely appealed that judgment. (Code Civ. Proc., § 581d; Cal. Rules of Court, rule
8.104(a).) Thus, we have jurisdiction to consider the merits of this appeal.
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II
Standard of Review
The function of a demurrer is to test the legal sufficiency of the factual allegations
of the complaint. (Thornton v. California Unemployment Ins. Appeals Bd. (2012) 204
Cal.App.4th 1403, 1411.) On appeal from a dismissal after an order sustaining a
demurrer, we examine the operative complaint de novo to determine whether it contains
sufficient facts to state a cause of action under any legal theory. (Silva v. Langford
(2022) 79 Cal.App.5th 710, 715.) In evaluating the complaint, we must assume the truth
of all material facts properly pleaded in the complaint. (Balikov v. Southern Cal. Gas Co.
(2001) 94 Cal.App.4th 816, 819.) We also must accept as true facts that are reasonably
implied or may be inferred from the complaint’s express allegations. (Ibid.) However,
we do not assume the truth of contentions, deductions, or conclusions of fact or law, and
we may disregard allegations that are contrary to the law or to a fact which may be
judicially noticed. (Khodayari v. Mashburn (2011) 200 Cal.App.4th 1184, 1189.)
When a demurrer is sustained without leave to amend, we also must consider
whether there is a reasonable possibility that the defect in the complaint could be cured
by amendment. (King v. CompPartners, Inc. (2018) 5 Cal.5th 1039, 1050.) It is an abuse
of discretion to sustain a demurrer without leave to amend if the plaintiff demonstrates a
reasonable possibility that the defect can be cured by amendment. (Balikov v. Southern
Cal. Gas Co., supra, 94 Cal.App.4th at p. 820.)
III
Effect of Prior Guilty Pleas in Subsequent Civil Action
Relying on Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd. (1962) 58 Cal.2d 601(Teitelbaum), the trial court held that the issues raised in Davies’s civil complaint were
conclusively decided against him in the prior criminal proceeding, and therefore Davies
is precluded from relitigating them in a civil action. Davies argues that the trial court
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misconstrued and misapplied Teitelbaum and therefore incorrectly sustained the demurrer
without leave to amend. We agree.
A. Legal principles
Courts have frequently used “ ‘res judicata’ ” as an “umbrella term” encompassing
two separate “ ‘aspects’ ” of an overarching doctrine that prohibits relitigation of claims
and issues which have already been adjudicated. (DKN Holdings LLC v. Faerber (2015)
61 Cal.4th 813, 823-824 (DKN Holdings).) Claim preclusion, the primary aspect of res
judicata, “ ‘prevents relitigation of the same cause of action in a second suit between the
same parties or parties in privity with them.’ [Citation.] Claim preclusion arises if a
second suit involves (1) the same cause of action (2) between the same parties (3) after a
final judgment on the merits in the first suit. [Citations.] If claim preclusion is
established, it operates to bar relitigation of the claim altogether.” (Id. at p. 824.) “Claim
preclusion promotes judicial economy and avoids piecemeal litigation by preventing a
plaintiff from ‘ “ ‘splitting a single cause of action or relitigat[ing] the same cause of
action on a different legal theory or for different relief.’ ” ’ [Citation.]” (Parkford
Owners for a Better Community v. Windeshausen (2022) 81 Cal.App.5th 216, 225.)
“Issue preclusion, the ‘ “ ‘secondary aspect’ ” ’ historically called collateral
estoppel, describes the bar on relitigating issues that were argued and decided in the first
suit. [Citation.]” (DKN Holdings, supra, 61 Cal.4th at p. 824.) Under issue preclusion, a
prior judgment conclusively resolves an issue actually litigated and determined in the first
action, even if the second suit raises different causes of action. (Id. at pp. 824-825.)
“[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. [Citations.]” (Id. at p. 825.)
B. Claim preclusion
Defendants argue that the court properly sustained the demurrer to the first two
causes of action (for assault and battery) because they are the same causes of action to
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which Davies pleaded guilty in the criminal proceeding, and therefore are barred by
principles of claim preclusion. Davies responds that claim preclusion does not apply
because the two proceedings involve different causes of action. We agree with Davies.
California courts apply the “ ‘primary rights’ ” theory in determining whether two
proceedings involve the same cause of action for purposes of claim preclusion. (State
Comp. Ins. Fund v. ReadyLink Healthcare, Inc. (2020) 50 Cal.App.5th 422, 447.) Under
that theory, 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.’ ” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th
888, 904.) A primary right “ ‘is simply the plaintiff’s right to be free from the particular
injury suffered,’ ” regardless of the legal theory on which liability for the injury is based ,
and each invasion of a primary right gives rise to a separate cause of action. (Ibid.)
“ ‘ “Even where there are multiple legal theories upon which recovery might be
predicated, one injury gives rise to only one claim for relief.” [Citation.]’ ” (Burdette v.
Carrier Corp. (2008) 158 Cal.App.4th 1668, 1685, original italics.)
Here, the civil assault and battery causes of action against defendants do not
involve the same primary right as the criminal assault and battery charges against Davies.
The latter involves a violation of a public duty, subjecting Davies to criminal prosecution
for wrongful conduct against defendants. The former involves a claim for monetary
damages for an (alleged) invasion of Davies’s private right to be free of tortious conduct.
Even if they arise from the same underlying incident and involve some common facts, the
alleged harm suffered by Davies is different and the civil causes of action could not have
been raised in the prior criminal proceeding. (See Howitson v. Evans Hotels, LLC (2022)
81 Cal.App.5th 475, 487-488; Teitelbaum, supra, 58 Cal.2d at p. 604 [where civil cause
of action is different from a charge pursued by the state in prior criminal proceeding,
criminal conviction is not entitled to res judicata effect]; City of Martinez v. Texaco
Trading & Transp., Inc. (9th Cir. 2003) 353 F.3d 758, 762-763 [applying California
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law].) Accordingly, Davies’s civil claims for assault and battery are not barred by
principles of claim preclusion.
C. Issue preclusion
We likewise conclude that Davies’s civil claims are not barred on issue preclusion
grounds.
As discussed, for issue preclusion to apply, the issue sought to be precluded must
have been actually litigated and decided in a prior proceeding. (DKN Holdings, supra, 61
Cal.4th at p. 825; Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.) In Teitelbaum,
our Supreme Court held that an issue decided in a prior criminal proceeding can serve as
the basis to apply collateral estoppel in a subsequent civil proceeding. (Teitelbaum,
supra, 58 Cal.2d at pp. 604-605.) However, in dictum, the court distinguished criminal
convictions resolved by a guilty plea. (Id. at pp. 605-606.) The Supreme Court stated,
“When a plea of guilty has been entered in the prior action, no issues have been ‘drawn
into controversy’ by a ‘full presentation’ of the case. It may reflect only a compromise or
a belief that paying a fine is more advantageous than litigation. Considerations of
fairness to civil litigants and regard for the expeditious administration of criminal justice
[citation] combine to prohibit the application of collateral estoppel against a party who,
having pleaded guilty to a criminal charge, seeks for the first time to litigate his cause in a
civil action.” (Id. at pp. 605-606.)
Following Teitelbaum, application of collateral estoppel arising from a criminal
action has been applied in civil cases only if the same issues were “ ‘thoroughly
litigated’ ” and necessarily determined as part of a prior criminal trial. (Pease v. Pease
(1988) 201 Cal.App.3d 29, 33 (Pease).) While a guilty plea is admissible in a subsequent
civil action on the independent ground that it is an admission, the plea is not treated as
conclusive. (Teitelbaum, supra, 58 Cal.2d at p. 605.) It is merely evidence against the
party and the party “may contest the truth of the matters admitted by the plea and explain
why the plea was entered, including all the circumstances surrounding the charge and the
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plea.” (Rusheen v. Drews (2002) 99 Cal.App.4th 279, 287-288, fn. omitted; Arenstein v.
California State Bd. of Pharmacy (1968) 265 Cal.App.2d 179, 191, validity questioned
on other grounds by Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th
652, 658.) The weight and significance of such evidence is a matter for the trier of fact.
(Arenstein, supra, at p. 191; see People v. Lee (2011) 51 Cal.4th 620, 651.)
The principles enunciated in Teitelbaum remain valid. (Coscia v. McKenna &
Cuneo (2001) 25 Cal.4th 1194, 1204; accord, Isidora M. v. Silvino M. (2015) 239
Cal.App.4th 11, 23, fn. 13; City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 767,
fn. 4, 770; 20th Century Ins. Co. v. Schurtz (2001) 92 Cal.App.4th 1188, 1193, 1196;
Pease, supra, 201 Cal.App.3d at pp. 32-34; People v. Camp (1970) 10 Cal.App.3d 651,
653.) Applying these principles, we conclude the trial court erred in determining that
Davies’s guilty pleas “conclusively” determined the issues raised in the first amended
complaint.
D. Party admissions
Defendants argue that even if Davies’s guilty pleas are not conclusive, they are
admissible as party admissions which contradict the facts alleged in the first amended
complaint. We agree the guilty pleas are admissible. (Teitelbaum, supra, 58 Cal.2d at p.
605; Pease, supra, 201 Cal.App.3d at p. 33; Isidora M. v. Silvino M., supra, 239
Cal.App.4th at p. 23, fn. 13.) But we are not persuaded the pleas contradict the facts
alleged in the complaint.
The facts subject to judicial notice establish only that Davies pleaded guilty to two
criminal offenses: felony assault (with a great bodily injury enhancement) and
misdemeanor battery.2 At most, his pleas constitute an admission of the elements of the
2 Although the parties stipulated that the preliminary hearing transcript provides a
factual basis for the pleas, the preliminary hearing transcript was not included in
defendants’ request for judicial notice and is not part of the record on appeal. Even if it
were, a stipulation to the factual basis for a plea constitutes an admission only to the facts
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charged offenses, i.e., that Davies did willfully and unlawfully (1) commit an assault
upon Max Iles by means of force likely to produce great bodily injury (and which did in
fact produce such injury); and (2) touched Mary Iles in a harmful or offensive manner.
(See, e.g., People v. Halstead (1985) 175 Cal.App.3d 772, 778; see also CALCRIM Nos.
875 & 960.)
Notably, Davies does not contest the guilty pleas or claim that he is free from any
wrongdoing. Nevertheless, he contends the guilty pleas do not foreclose the claims
alleged in his civil complaint. We agree.
The first amended complaint is not a collateral attack upon the guilty pleas. It
does not seek to invalidate or avoid the effect of the prior criminal judgment. Instead, the
civil complaint raises an issue that the criminal case neither addressed nor resolved:
whether defendants committed torts against Davies before the conduct underlying his
criminal conviction.
Defendants have failed to explain, and we are unable to discern, how the facts
alleged in this lawsuit are fatally inconsistent with Davies’s prior criminal pleas. The
admission by Davies that he committed assault and battery against certain defendants is
not obviously incompatible with allegations that defendants also committed an assault
and battery (and other torts) against him. (See Kon v. City of Los Angeles (2020) 49
Cal.App.5th 858, 862-864 [finding no inconsistency between a civil suit for excessive
force and a criminal conviction for disturbing the peace].)
We decline defendants’ invitation to speculate whether there are “further
admissions,” supportive of the demurrer, elsewhere in Davies’s criminal file. First, as
discussed, defendants did not request judicial notice of the entire criminal file and
therefore that file is not before us. Second, we are cognizant of the procedural posture in
which this matter came to us. Judicial notice of matters upon demurrer is “dispositive
necessary to establish the elements of the charged offense(s) and is not a binding
admission for all purposes. (People v. French (2008) 43 Cal.4th 36, 49-50.)
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only in those instances where there is not or cannot be a factual dispute concerning that
which is sought to be judicially noticed.” (Cruz v. County of Los Angeles (1985) 173
Cal.App.3d 1131, 1134; accord, Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181
Cal.App.4th 471, 485; Tucker v. Pacific Bell Mobile Services (2012) 208 Cal.App.4th
201, 218, fn. 11.) “ ‘A demurrer is simply not the appropriate procedure for determining
the truth of disputed facts.’ [Citation.]” (Joslin v. H.A.S. Ins. Brokerage (1986) 184
Cal.App.3d 369, 374; accord, Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242
Cal.App.4th 651, 660.)
Here, there is no dispute that Davies pleaded guilty to the criminal charges against
him. But the pleas are not conclusive, and the facts surrounding the convictions remain
subject to dispute. (Interinsurance Exchange v. Flores (1996) 45 Cal.App.4th 661, 672-
673 [nolo plea to felony criminal charge did not establish underlying factual matters at
issue]; Pease, supra, 201 Cal.App.3d at p. 34.)
Thus, although we express no opinion on the merits of Davies’s causes of action,
or on any other defenses that might be available to defendants, we conclude the court
erred in sustaining the demurrer to the first amended complaint based on Davies’s prior
guilty pleas.
IV
Other Grounds for Demurrer
In the trial court, defendants raised two grounds for the general demurrer: (1) that
Davies’s claims are subject to res judicata/collateral estoppel because of the prior guilty
pleas; and (2) that irrespective of the guilty pleas, the facts alleged in the first amended
complaint were insufficient to state causes of action for assault, battery, IIED, and NIED.
On appeal, Davies addresses this second alternative ground for the demurrer,
arguing that the first amended complaint alleges facts sufficient to state each cause of
action. (Code Civ. Proc., § 452.) Defendants, in contrast, address only the first ground
relating to the guilty pleas.
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In general, a judgment of dismissal after an order sustaining a demurrer will be
affirmed if the complaint is objectionable on any ground raised by the demurrer. (CAMSI
IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1533; Zappas v. King
Williams Press, Inc. (1970) 10 Cal.App.3d 768, 771; California State Employees’ Assn.
v. Williams (1970) 7 Cal.App.3d 390, 395.) However, a respondent who has advanced
multiple theories in support of a demurrer “may be deemed to have abandoned those
theories by failing to reassert them on appeal.” (Tukes v. Richard (2022) 81 Cal.App.5th
1, 20.) “Put another way, if the proponent of a theory does not consider it worthy of
recitation to the appellate court, the appellate court is entitled to presume the theory has
no merit.” (Ibid.)
We apply that presumption here. Because defendants have failed to present any
pertinent argument on the alternative ground for the demurrer, we deem the issue
abandoned on appeal. We therefore consider only the legal effect of the prior guilty pleas
and decline to address whether the first amended complaint is objectionable on any other
ground raised by the demurrer.
DISPOSITION
The judgment of dismissal is reversed. The order sustaining the demurrer without
leave to amend is vacated and the cause is remanded with directions to enter a new and
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different order overruling the demurrer. Plaintiff Davies is awarded his costs on appeal.
(Cal. Rules of Court, rule 8.278(a)(1), (2).)
KRAUSE , J.
We concur:
HULL , Acting P. J.
RENNER , J.
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