Judge Michael Shultz, Case 19STCV29783 2022-09-08 Tentative Ruling

INSTRUCTIONS: If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must:

1. Contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling.

2. No later than 4:00 p.m. on the court day before the hearing, call the Courtroom (310-761-4302) advising that all parties will submit on the tentative ruling and waive hearing; and

3. Serve notice of the Court's ruling on all parties entitled to receive service.

If this procedure is followed, when the case is called the Court will enter its ruling on the motion in accordance with its tentative ruling. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing. If there is neither a telephone call nor an appearance, then the matter may either be taken off calendar or ruled on.

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[TENTATIVE] ORDER DENYING PLAINTIFF’S MOTION FOR RELIEF FROM THE COURT’S APRIL 13, 2022, ORDER; SUPPLEMENTAL BRIEFING

The First Amended Complaint, filed on May 12, 2022, alleges that Defendants violated Plaintiff’s civil rights while searching Plaintiff without probable cause and used unreasonable force against him by ordering a canine to attack him. On July 28, 2022, Plaintiff dismissed the claims for false arrest and imprisonment and for malicious prosecution. The remaining claims are for (1) violation of Civ. Code, § 52.1, (2) negligence, (3) battery, (4) assault, and (5) intentional infliction of emotional distress.

Plaintiff seeks mandatory relief from the stipulation and order signed on April 13, 2022, wherein Plaintiff agreed, among other things to file an amended complaint in 30 days that struck “… all allegations contending that Plaintiff was unarmed or that the reports of seeing a gun in his possession were false.” Stipulation filed 4/13/22. In pertinent part, Defendants agreed to take their motions for summary judgment off calendar.

Plaintiff’s counsel, Yana Henricks, avers that when she signed the stipulation, she was suffering from “long COVID-19 symptoms that intermittently” affected her ability to work. She argues that she to failed properly supervise her associate, Justice Turner, and as a result she “failed to make sure that the crucial language was included in the stipulation,” and failed to delay the filing of the stipulation until she could speak directly with defense counsel. Her co-counsel, Justice Turner, attests that he failed to communicate with Ms. Henricks and failed to include the correct language. Plaintiffs' counsel argue that their failures constitute excusable neglect. After realizing her mistake, Ms. Henricks filed a notice to withdraw the stipulation, however, the court had already signed it.

Plaintiff is not entitled to either mandatory or discretionary relief. Plaintiff is not entitled to mandatory dismissal because the asserted neglect did not result in a default, default judgment, or a dismissal. Discretionary relief is not available because Plaintiff has failed to establish excusable error under the code. Indeed, Plaintiff’s counsels’ mistakes are not excusable mistakes under the code and Plaintiff is not entitled to rescind the stipulation for a mistake in law. See Garcia v. Hejmadi (1997) 58 Cal. App. 4th 674, 682, (“Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability [sic] and effectively eviscerate the concept of attorney malpractice.”) Finally, Defendant County argues Ms. Henricks proposed the language found in the stipulation and she was dilatory in waiting nearly 5 months to seek relief.

Defendant relied on the stipulation by withdrawing a Motion for Summary Judgment of the original complaint and filing a new Motion for Summary Judgment to the FAC. If the court grants Plaintiff’s motion and vacates the stipulation, County requests reimbursement of $16,480 in legal fees.

Plaintiff contends that his counsel engaged in excusable neglect in drafting the stipulation at issue. Ms. Henrik’s was forced to rely on her associate due to her symptoms. Defendants’ request for attorney’s fees are unreasonable. Plaintiff contends he is entitled to both discretionary and mandatory relief.

Mandatory relief is available where counsel’s affidavit attests to “his or her mistake, inadvertence, surprise, or neglect … resulting [in] default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client.” Code Civ. Proc., § 473. The term “dismissal” is narrowly construed to mean those dismissals which are procedurally equivalent to a default. Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 618.

Mandatory relief is not available “to dismissals for failure to prosecute [citations omitted], dismissals for failure to serve a complaint within three years [citations omitted], dismissals based on running of the statute of limitations [citations omitted] and voluntary dismissals entered pursuant to settlement [citations omitted].” Leader at 620. This is consistent with the Legislature’s intent that the section's purpose was simply “to put plaintiffs whose cases are dismissed for failing to respond to a dismissal motion on the same footing with defendants who are defaulted for failing to respond to an action.” Id. at 620. The stipulation and order at issue did not result in a default, default judgment, or dismissal. Therefore, Plaintiff is not entitled to mandatory relief.

In determining whether an attorney's mistake or inadvertence was excusable, “the court inquires whether a reasonably prudent person under the same or similar circumstances might have made the same error. This discretionary relief provision only permits relief from attorney error fairly imputable to the client -- mistakes anyone could have made.” Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 251.

Ms. Henriks proposed the language that Defendants consent to the filing of an amended complaint, and Plaintiff’s agreement to strike all allegations contending that Plaintiff was unarmed or that the reports of seeing a gun in his possession were false. Declaration of Rickey Ivie, Ex. C, .pdf page 23. This undermines the contention that any other language was to be included.

Finally, Ms. Hendriks blames her mistake on her associate and her “long COVID-19 symptoms that intermittently” affected her ability to work. Although she sought to withdraw the stipulation, Ms. Hendriks neglected to make these claims in her Notice of Withdrawal of Stipulation and Declaration filed April 14, 2022. Instead, she asked to withdraw the stipulation because, in part, she learned that defense counsel believed the stipulation would “exclude any and all discovery of facts pertaining to the excluded allegations…” Hendricks Declaration, April 14, 2022. She never claimed that she was ill and never claimed that her associate had erred. She simply claimed that there was no meeting of the minds because defense counsel and her disagreed about the legal effect of the stipulation.

Defendant, County of Los Angeles (“County”), moves to strike the fifth and sixth causes of action, which are barred by the applicable statute of limitations. County also seeks to strike specific allegations in the complaint because those allegations violate the court’s order pursuant to the parties’ stipulation. Defendant also claims that because Plaintiff pleaded no contest in the criminal proceeding arising from the same facts, he cannot now challenge the officer’s conduct in this civil action. Finally, the prayer for recovery of attorney’s fees pursuant to 42 U.S.C. § 1983(b) should also be stricken since Plaintiff did not allege a claim for violation of civil rights pursuant to that statute.

On July 23, 2022, Plaintiff dismissed the fifth cause of action for false arrest and imprisonment and the sixth cause of action for malicious prosecution. That portion of the County’s motion to strike is moot. Plaintiff argues that Heck v. Humphrey (1994) 512 U.S. 477 did not create an evidentiary bar. Moreover, Defendant introduced intrinsic evidence concerning the Plaintiff’s criminal proceeding which is not subject to judicial notice and cannot be considered by the court.

The parties agreed that Plaintiff could make factual statements, as opposed to allegations, concerning Defendants’ pat down of Plaintiff who was unarmed. This is relevant background information.

Defendant contends that Plaintiff signed the stipulation agreeing to strike all allegations contending that Plaintiff was unarmed or that the reports of seeing a gun in his possession were false. The court signed the parties’ stipulation. Whether the statements are characterized as facts or allegations, the language is specifically and unambiguously subject to being stricken based on the stipulation and order.

Grounds for a motion to strike are limited to matters that appear on the face of the pleading or on any matter which the court shall or may take judicial notice. Code Civ. Proc., §437. The court can strike out “any irrelevant, false, or improper matter inserted in any pleading or “any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” Cal Code Civ Procedure § 436.

Prior to filing the motion, the moving party must meet and confer with opposing counsel to determine if the parties can agree to resolve the objections to be raised in the motion. Code Civ. Proc., § 435.5. Defense counsel complied with this obligation. Declaration of Rickey Ivie, ¶ 2.

The court has discretion to take judicial notice of documents absent Defendant’s formal request and “on its own volition.” Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 752. Defendant submitted the documents relating to Plaintiff’s criminal proceeding and gave Plaintiff an opportunity to object. Id. The court may take judicial notice of official acts of the legislative, executive, and judicial departments of any state of the United States as well as court records. Evid. Code, § 452 subd. (c) and (d). Accordingly, the court takes judicial notice of the stipulation and order filed in this matter on April 7, 2020, to dismiss Sergeant Barragan and the claims for false arrest and malicious prosecution (fifth and sixth causes of action). Declaration of Rickey Ivie, Ex. 2. The court also takes judicial notice of the First Amended Complaint and excerpts of Plaintiff’s plea and summary probation. Id., Ex. 1 and 3.

Plaintiff also filed a dismissal of the fifth and sixth causes of action on July 28, 2022, rendering moot Defendant’s motion to strike those claims. The remaining issue concerns Plaintiff’s prayer for attorney’s fees and agreement to strike allegations that Defendants searched Plaintiff and found no guns or weapons and that Defendants acted in concert to claim that Plaintiff was armed although no firearm was found on the Plaintiff (“the designated allegations”). FAC, para. 1, lines 12-13 and lines 17-18; para. 25, lines 22-23.

Defendant has not established that the prayer for attorney’s fees is irrelevant or improper since Plaintiff’s first cause of action for violation of the Bane Act expressly permits recovery of attorney’s fees. Civ. Code, § 52.1(h). The request to deny this language is DENIED.

The court’s file reflects that on April 13, 2022, Plaintiff agreed to “strike all allegations contending that Plaintiff was unarmed or that the reports of seeing a gun in his possession were false.” Stipulation filed 4/13/22. In return, Defendants agreed to take off calendar their pending motions for summary judgment. Stipulation filed 4/13/22, ¶ 4. County agreed not to file their motion for judgment on the pleading but reserved its right to file one in responses to the amended complaint. Id., ¶ 5. The court’s file reflects that as of that date County had a pending Motion for Summary Judgment filed March 11, 2022. That motion was never heard. Defendants, Deputy Hauser, the County and the Los Angeles Sheriff’s Department subsequently filed separate Motions for Summary Judgment or Adjudication on June 15, 2022.

Given the clear and unambiguous stipulation to file an amended complaint without the designated allegations at issue, and further that Plaintiff proposed that language be included in that stipulation, Defendant’s request to strike the allegations is GRANTED. See Ivie Declaration in Opp. to Plaintiff’s Motion for Relief, Ex. C.

County additionally argues that Plaintiff cannot allege that Defendants searched Plaintiff and did not find a weapon since he pleaded no contest to carrying a concealed weapon in violation of Penal Code § 25400 subd. (a) in his criminal proceeding. Ivie Declaration, Ex. 3, 4:20. Plaintiff also pleaded no contest to resisting, delaying, or obstructing a peace officer in violation of Penal Code § 148 subd. (a)(1), and for assaulting a police animal in violation of Penal Code § 600 subd. (a). Ivie Declaration, Ex. 3, 4:20.

County cites Heck v. Humphrey (1994) 512 U.S. 477 which held that "when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit." Id. at 487.

The California Supreme Court considered Heck in Yount v. City of Sacramento (2008) 43 Cal.4th 885, wherein plaintiff (arrestee) pleaded no contest to resisting, delaying, or obstructing an officer. Plaintiff then filed a common law battery and federal civil rights action for arrest without probable cause and use of excessive force against the city and police officer who shot him following plaintiff’s arrest. Id. at 888. The trial court ruled that the claims were barred in light of Heck. Id. The Court of Appeal reversed, finding that the possibility of the officer’s use of excessive force “may have been temporally distinct from the acts that formed the basis of Yount's no contest plea to resisting the officers sufficient to avoid the Heck bar." Id.

The California Supreme Court affirmed in part citing Heck for the proposition that the plaintiff’s § 1983 action "should be allowed to proceed only when ‘the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff.’" Yount at 896. In holding that the principle articulated in Heck also applied to the plaintiff’s state claw claims, the Court analyzed the relationship between the crime for which plaintiff was convicted (resisting) and the officer’s alleged misconduct as alleged in the complaint (civil rights violations). Id. at 898. The Supreme Court determined that to the extent the § 1983 claim was based on the officer’s use of deadly, unjustified, and excessive response to the plaintiff’s resistance, the claim was not barred. Id. at 898. Mr. Yount pleaded guilty to resisting arrest; his criminal proceeding did not address whether the use of deadly force against him was reasonable or justified. Id.

Plaintiff Escalante alleges claims based on Defendants’ “unreasonable and excessive” use of force in deploying the K9. FAC ¶¶ 39, 49, 59, 69. Plaintiff pleaded no contest to resisting a peace officer, assaulting a police animal, and carrying a concealed weapon. Motion, Ex. 3, 4:3-20. These convictions do not reflect on whether the officers acted reasonably or excessively in deploying the K9.

Yount and Heck raise the issue of the admissibility of evidence at trial, which Defendants improperly conflate with the issue of propriety of allegations. Defendants have not cited any proposition that the allegations of the complaint (without reference to the pat down and lack of a firearm) results in the inadmissibility of such evidence at trial. A motion to strike does not address evidentiary issues. Heck is not an “evidentiary doctrine.” Simpson v. Thomas (9th Cir. 2008) 528 F.3d 685, 696. In Simpson, the court stated that the plaintiff “is still entitled to tell the jury the entire story.” Id.

In summary, the court DENIES as moot Defendants’ request to strike the claims for false arrest and imprisonment and malicious prosecution and DENIES the request to strike the prayer for attorney’s fees. The court GRANTS the request to strike the designated allegations pertaining to the search of Plaintiff and that no firearm was found as follows:

[TENTATIVE] ORDER TAKING OFF CALENDAR TWO MOTIONS FOR SUMMARY JUDGMENT, ALTERNATIVELY, FOR SUMMARY ADJUDICATION FILED BY DEFENDANTS, COUNTY OF LOS ANGELES AND LOS ANGELES COUNTY SHERIFF’S DEPARTMENT, AND DEFENDANT, DEPUTY HAUSER

On June 15, 2022, Defendant, Deputy Hauser (“Hauser”) filed a Motion for Summary Judgment, or Alternatively, for Summary Adjudication of all causes of action alleged in the First Amended Complaint. Hauser’s motion asserts that because Plaintiff was convicted of resisting arrest, assaulting the police K9, and carrying a concealed weapon based on the same incident at issue in this action, Plaintiff is barred from asserting his civil claims as they “challenge the validity” of Plaintiff’s criminal convictions pursuant to Heck v. Humphrey (1994) 512 U.S. 477; Yount v. City of Sacramento (2008) 43 Cal.4^th 885.

Additionally, Hauser argues that Plaintiff’s claims for violation of the Bane Act, negligence, assault, and battery are not viable since no reasonable juror could conclude that deployment of the policy K9 constituted unreasonable force or that Defendant interfered with Plaintiff’s legal rights. Hauser argues that since Defendant’s conduct does not amount to extreme and outrageous conduct, Plaintiff’s claim for intentional infliction of emotional distress also fails.

On June 16, 2022, Defendants, County of Los Angeles, and Los Angeles Sheriff’s Department (collectively, “County”), filed their Motion for Summary Judgment, or Alternatively, for Summary Adjudication of all causes of action on largely identical grounds. County’s request for adjudication of the fifth cause of action for false arrest/false imprisonment and for malicious prosecution is rendered moot by Plaintiff’s dismissal of both causes of action on July 28, 2022.

As discussed previously with respect to Plaintiff’s Motion for Relief under Code of Civil Procedure section 473(b) and Defendant’s Motion to Strike certain allegations in the FAC, concurrently heard with Defendants’ respective summary judgment/adjudication motions, the parties stipulated to strike allegations that Plaintiff was unarmed or that reports of seeing a gun in his possession were false (the “designated allegations”). The court signed the stipulation and filed it on April 13, 2022.

In turn, the County agreed not to file its Motion for Judgment on the Pleading while reserving the right to do so as to the amended complaint. Stip. and Ord. filed 4/13/22. The County and deputy Defendants agreed to take the pending Motion for Summary Judgment off calendar, without reserving their right to do so as to the amended complaint. Id.

As the court has previously determined, Plaintiff’s agreement to strike the designated allegations from the amended complaint was without ambiguity and is enforceable. Whether Defendants agreed to reserve their right to proceed with summary judgment of the amended complaint despite Plaintiff’s agreement to remove designated allegations (as Defendants argue) is not expressly articulated in the stipulation. If Defendants reserved their right to re-file their summary judgment motions to the amended complaint despite Plaintiff’s agreement to strike the designated allegations, Plaintiff’s agreement would be rendered meaningless. Accordingly, the court takes Defendants’ Motions for Summary Judgment/Adjudication off calendar.[1]

The court has previously determined with respect to Defendants’ Motion to Strike that even if Plaintiff’s civil claims were successful, they are not barred under the principles of Heck or Yount as Plaintiff’s claims turn on whether Defendants acted unreasonably. If successful, the civil claims would not challenge the “invalidity” of Plaintiff’s criminal convictions. Yount at 896. Additionally, Heck is not an “evidentiary doctrine.” Simpson v. Thomas (9th Cir. 2008) 528 F.3d 685, 696. In Simpson, the court stated that the plaintiff “is still entitled to tell the jury the entire story.” Id.

For the foregoing reasons, the court takes off calendar the County’s and Deputy Hauser’s Motions for Summary Judgment, or Alternatively, for Summary Adjudication based on the parties’ stipulation of April 13, 2022.

[1] Whether Defendants acted reasonably or unreasonably in deploying a canine unit, or whether their conduct unlawfully interfered with Plaintiff’s rights under the Bane Act or whether Defendants’ conduct could be construed as “outrageous” and aggravating for purposes of the emotional distress claim are triable issues of fact. Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, [“Where reasonable men may differ, it is for the jury, subject to the control for the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.”] Thus, even if heard, the defendants’ motion for summary judgment would nonetheless be denied.