Judge Mark A. Young, Case Number: 22SMCV00763, Date: 2023-10-19 Tentative Ruling

Judge: Mark A. Young, Case: 22SMCV00763, Date: 2023-10-19 Tentative Ruling

Case Number: 22SMCV00763 Hearing Date: October 19, 2023 Dept: M

CASE NAME: Gonzalez v. City of Santa Monica, et al.

CASE NO.: 22SMCV00763

MOTION: Demurrer and Motion to Strike the First Amended Complaint

Request for Sanctions

HEARING DATE: 10/19/2023

Legal Standard

Demurrer/Motion to Strike

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations omitted.)

A special demurrer for uncertainty is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (CCP § 430.10(f); Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

“Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to show in what manner plaintiff can amend the complaint, and how that amendment will change the legal effect of the pleading. (Id.)

Sanctions

Code of Civil Procedure section 128.7(b) states that a court may impose sanctions on an unrepresented party or attorney that presents a pleading, petition, motion, or other similar papers in the following circumstances:

1) the document is presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

2) the claims, defenses, and other legal contentions therein are not warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

3) the allegations and other factual contentions have no evidentiary support;

4) the denials of factual contentions are not warranted on the evidence.

(See Eichenbaum v. Alon (2003) 106 Cal App 4th 967, 976.) In addition, section 128.7 does not require a finding of subjective bad faith; instead it requires only that the Court find that the conduct be objectively unreasonable. (In re Marriage of Reese & Guy (1999) 73 Cal. App. 4th 1214, 1221.)

A claim is factually frivolous if it is “not well grounded in fact” and is legally frivolous if it is “not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.” (Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 189–190.) In either case, to obtain sanctions, the moving party must show the party's conduct in asserting the claim was objectively unreasonable. (Ibid.) A claim is objectively unreasonable if “any reasonable attorney would agree that [it] is totally and completely without merit.” (Ibid.) However, “section 128.7 sanctions should be ‘made with restraint’ [Citation], and are not mandatory even if a claim is frivolous.” (Peake v. Underwood (2014) 227 Cal.App.4th 428. at 448.)

The Legislature enacted section 128.7 based on Rule 11 of the Federal Rules of Civil Procedure (28 U.S.C.), as amended in 1993 (Rule 11). (Musaelian v. Adams (2009) 45 Cal.4th 512, 518, fn. 2.) As a result, federal case law construing Rule 11 is persuasive authority on the meaning of section 128.7. (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 168.) Under Rule 11, even though an action may not be frivolous when it is filed, it may become so if later-acquired evidence refutes the findings of a prefiling investigation and the attorney continues to file papers supporting the client's claims. (Childs v. State Farm Mut. Auto. Ins. Co. (5th Cir.1994) 29 F.3d 1018, 1025.) As a result, a plaintiff's attorney cannot “just cling tenaciously to the investigation he had done at the outset of the litigation and bury his head in the sand.” (Ibid.) This requires an attorney to conduct a reasonable inquiry to determine if his or her client's claim was well-grounded in fact and to take into account the adverse party's evidence. (Ibid.)

“Although the objective standard of proof is easier to satisfy [than the subjective standard], the Legislature intended to ‘retain the extremely high proof required for such awards’ with its applicability lying with ‘truly egregious behaviors.’ ” (San Diegans for Open Government v. City of San Diego (2016) 247 Cal.App.4th 1306, 1318-19.) An objectively reasonable attorney standard applies to this determination. (Id. at 1319.) “Whether a claim is meritless or for the sole purpose of harassment must be evaluated by examining whether the factual allegations of the claim had evidentiary support.” (Ibid.) The “ultimate burden of providing sanctionable conduct remains with the moving party.” (Id. at 1320.) The moving party must provide evidence sufficient to establish a prima facie case that the action is meritless or for the sole purpose of harassment. (Id. at 1319-1320.) If the court finds that this evidence has satisfied the moving party’s burden, then the burden shifts to the opposing party to refute the prima facie case. (Id. at 1320.)

In addition to the above requirements, Code of Civil Procedure section 128.7(c)(1) requires that a motion for sanctions under section 128.7 be made separately from other motions and that notice of the motion must be served, but not filed with the Court, unless within 21 days after service of the motion, the challenged paper is not withdrawn. This 21-day time period is known as a "safe harbor" period and its purpose is to permit an offending party to avoid sanctions by withdrawing the improper pleading during the safe harbor period. (Li v. Majestic Industry Hills LLC (2009) 177 Cal. App. 4th 585, 591.) This permits a party to withdraw a questionable pleading without penalty, thus saving the court and the parties time and money litigating the pleading as well as the sanctions request. (Ibid.)

Analysis

Request for Judicial Notice

Defendant City of Santa Monica’s request for judicial notice is GRANTED. (Evid. Code § 452(d).)

Demurrer/Motion to Strike

Defendant City of Santa Monica demurs on the grounds that the entire complaint is barred by the doctrine of res judicata. The doctrine of res judicatagenerally precludes parties, or their privies, from relitigating a cause of action determined with finality in a prior proceeding. (Smith v. ExxonMobil Oil Corp. (2007) 153 Cal.App.4th 1407, 1413-14; Wright v. Ripley (1998) 65 Cal.App.4th 1189, 1193.) The doctrine has two aspects: it applies to both a previously litigated cause of action, referred to as claim preclusion, and to an issue necessarily decided in a prior action, referred to as issue preclusion. (Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 828.) “[R]es judicata does not merely bar relitigation of identical claims or causes of action. Instead, in its collateral estoppel aspect, the doctrine may also preclude a party to prior litigation from redisputing issues therein decided against him, even when those issues bear on different claims raised in a later case. Moreover, because the estoppel need not be mutual, it is not necessary that the earlier and later proceedings involve the identical parties or their privies. Only the party against whom the doctrine is invoked must be bound by the prior proceeding. [Citations.]” (Ibid.)¿¿¿

Claim preclusion applies if: (1) the issue decided in the prior adjudication is identical with the one presented in the new action; (2) there was a final judgment on the merits in the prior action, and (3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication. (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 798.)

“In California the phrase ‘cause of action’ is often used indiscriminately ... to mean counts which state [according to different legal theories] the same cause of action....” (Eichler Homes of San Mateo, Inc. v. Superior Court (1961) 55 Cal.2d 845, 847.) For purposes of applying the doctrine of res judicata, the phrase “cause of action” has a more precise meaning: The cause of action is the right to obtain redress for a harm suffered, regardless of the specific remedy sought or the legal theory (common law or statutory) advanced. (Bay Cities Paving & Grading, Inc. v. Lawyers' Mutual Ins. Co. (1993) 5 Cal.4th 854, 860.) “[T]he ‘cause of action’ is based upon the harm suffered, as opposed to the particular theory asserted by the litigant. [Citation.] Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief. ‘Hence a judgment for the defendant is a bar to a subsequent action by the plaintiff based on the same injury to the same right, even though he presents a different legal ground for relief.’ [Citations.]” Thus, under the primary rights theory, the determinative factor is the harm suffered. When two actions involving the same parties seek compensation for the same harm, they generally involve the same primary right. (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 798.)¿

On October 23, 2020, Plaintiff filed an action in the United States District Court, Central District of California, entitled Kristofer Gonzalez v. City of Santa Monica, et. al, Case No. 2:20-cv-06947- RGK-AGR (the “Federal Action”). (RJN Exs. A, D, E.) Included in the Federal Action were fourteen causes of action, including five state law causes of action for Battery/Assault, Negligence, Violation of the Bane Act, Violation of the Ralph Act and Intentional Infliction of Emotional Distress. On November 24, 2021, Plaintiff and Defendants stipulated dismissing the claim for violation of the Ralph Act. (Ex. B.) A 3-day trial commenced on April 4, 2022. (Ex. F.) On April 7, 2022, at the close of trial, the Court, sua sponte, dismissed the City of Santa Monica. (Id.) On April 8, 2022, the jury rendered a verdict in favor of Defendants on the Section 1983 excessive force claim, and the state law battery claim. (Ex. I.) On May 18, 2022, judgment was entered on the jury’s verdict in defendants favor, and the court’s orders of dismissal. (Ex. J.) Plaintiff appealed, but subsequently dismissed the appeal and the judgment is final.

On May 26, 2022, Plaintiff filed the complaint in this action, asserting the claims that the federal court declined to address, including common law claims of assault, negligence, Intentional Infliction of Emotional Distress, and a violation of the Bane Act. Upon review of the Federal Action and this matter, the Court concludes that this action arises from the same facts and injury as alleged in the Federal Action. The Federal Action concerned allegations that the defendant police officers, while employed by the City, used excessive force, including shooting Plaintiff, and unlawfully arrested Plaintiff on September 12, 2019. This state action arises from allegations that on September 12, 2019, the Defendant police officers, while employed by the City, used excessive force and unlawfully arrested Plaintiff, including shooting him and improperly using their police canine. Plaintiff sought relief in the Federal Action on the same legal theories presented here. The Federal Action ended with a final judgment on the merits against Plaintiff and for the City on the excessive force and battery claims. Further, each of the alleged causes of action in this action are derivative of these facts. Thus, the elements of claim preclusion are met and would bar the entire action against the City.

Plaintiff largely ignores the issue of res judicata and fails to address that the same primary rights were at play in the underlying Federal Action. Plaintiff argues the Court has jurisdiction because no final order exists as to the issues presented in this action. Plaintiff apparently refers to the fact that Plaintiff did not present the alleged dog bite in the Federal Action. Plaintiff explains that they did not have the body camera footage that showed Defendant Officer Marioni getting the dog to bite Plaintiff prior to submitting the government claim and filing the first action. The fact that Plaintiff failed to plead this fact in the underlying action, despite having the opportunity to do so, would not defeat the “identical” element of claim preclusion. As noted above, the same primary right is at play in both this action and the underlying Federal Action. Further, res judicata precludes relitigation of matters within the scope of a prior action, i.e., issues that were raised or could have been raised at that time. (Warga v. Cooper (1996) 44 Cal.App.4th 371, 377-37.)

Plaintiff also cites the tolling provisions of 28 USC § 1367. However, these tolling provisions would only apply to a statute of limitations argument. It would not prevent the application of claim preclusion.

Accordingly, the demurrer is SUSTAINED without leave to amend. Given the application of res judicata, the remainder of the demurrer is MOOT and the motion to strike is MOOT.

Sanctions (CCP § 128.7)

Defendant City also moves for sanctions in the amount of $4,125.00 against Plaintiff for filing and maintaining this lawsuit against the City. The City argues that these claims are not warranted by existing law. Defendant fully complied with the safe harbor requirements by serving the Motion for Sanctions on Plaintiff on May 25, 2023. (Flores-Oster Decl., ¶4.)

The Court agrees that this action cannot be maintained against the City given the above analysis on demurrer. Furthermore, the City notified Plaintiff of these issues and granted Plaintiff an opportunity to withdraw the complaint during meet and confer efforts. Plaintiff also does not identify any reason why res judicata would not apply. Plaintiff largely ignores the issue and offers the conclusory statement that there is no final judgment, even though there was a final judgment in the underlying Federal Action. In light of this record, the Court concludes that Plaintiff presented this action primarily for an improper purpose, such as to harass, cause unnecessary delay or needless increase in the cost of litigation.

The Court further concludes that the presentation of this claim was objectively unreasonable in light of the final judgment on the merits against Plaintiff and for Defendants in the substantially identical Federal Action. A reasonable attorney would know that adding the allegation regarding the dog bite or presenting other legal theories regarding the same incident would not prevent the application of res judicata. Therefore, a reasonable attorney would agree that this second action is totally and completely without merit. Accordingly, the Court will grant sanctions. Sanctions are granted in the noticed amount of $4,125.00 against Plaintiff and Plaintiff’s counsel of record, The Cochran Firm California and Ivie McNeill Wyatt Purcell & Diggs, APLC, jointly and severally.