Call v. Badgley

• Decision Date: 27 March 2020
• Docket Number: A154279
• Court: California Court of Appeals Court of Appeals
• Parties: JASON CALL, Plaintiff and Appellant, v. MATT BADGLEY et al., Defendants and Respondents.

JASON CALL, Plaintiff and Appellant, v. MATT BADGLEY et al., Defendants and Respondents.

A154279

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

March 27, 2020

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Humboldt County Super. Ct. No. DR150282)

Plaintiff Jason Call appeals from the judgment of dismissal entered after the trial court sustained a general demurrer to all causes of action without leave to amend. We will affirm.

BACKGROUND

In 2012, members of a state-county task force suspected plaintiff of large-scale marijuana cultivation. A state Department of Justice officer applied for a search warrant. A Humboldt County magistrate issued a warrant authorizing a search of plaintiff's residence. State and county law enforcement personnel searched plaintiff's home and found dozens of marijuana plants. A criminal prosecution was commenced, but terminated in 2015 when a Humboldt County Superior Court judge quashed the warrant because it was based on stale information.

Several months later, plaintiff filed suit in state court against the officers and the County of Humboldt (hereafter "defendants," "the state defendants," or "the county defendants" as appropriate), stating causes of action all based on the search and the officers' actions in conducting the search. The state defendants had the case removed to federal court.

In May 2017, the district court granted defendants' motion for summary judgment. In his 23-page order, District Judge Gilliam made a number of determinations. First, he concluded that plaintiff "has failed to make" the required "substantial showing that the warrant application contained a false statement or omission that was deliberately false or made with reckless disregard for the truth." Also, "Plaintiff's suggestion that Nelson [the state officer who applied for the warrant] misled the magistrate judge by providing stale information is similarly unavailing." Second, notwithstanding the possible staleness of some of the information in the application, the warrant was supported by probable cause. Third, plaintiff failed to substantiate a claim under 42 U.S.C. § 1983 (section 1983) concerning execution of the warrant. This determination applied to plaintiff's claims that (1) the officers had no basis in a good faith reliance on the warrant, (2) officers' conduct during the search was unreasonable, and (3) the officers had used unreasonable force in conducting the search. Fourth, in light of the foregoing, plaintiff had no cause of action for false arrest based on what was discovered in the search. Fifth, plaintiff had no viable cause of action for damages under section 1983 for the County's "failure to train and supervise" its employees because he "has failed to identify anyHumboldt County policy or custom that caused [his] alleged injury," and "has also failed to identify any factual basis for imputing knowledge of County Defendant's wrongful conduct, even assuming they engaged in any." Accordingly, summary judgment was granted on plaintiff's first through fifth causes of action. Judge Gilliam declined to exercise "supplemental jurisdiction over Plaintiff's remaining state law claims," which were remanded to state court.

Once the case was back in state court, in November 2017, plaintiff filed his third amended complaint, in which he stated causes of action styled as follows: (1) "Negligent Use of Deadly Force (against defendant Harkness)"; (2) "(California State Bane Act, Civil Code § 52.1) (Against all defendants)"; (3) "Assault & Battery (Against defendant Harkness)"; (4) "California Cause of Action for Conversion (Against all defendants)"; (5) "(False Arrest and Imprisonment against Humboldt County, Humboldt County Sheriff's Office, Matt Badgley and Wayne Hanson)"; (6) "(Failure to Properly Train and Supervise against Humboldt County, Humboldt County Sheriff's Office, Humboldt County Sheriff Michael Downey, Humboldt County Drug Task Force Supervisor Wayne Hanson)"; (7) "(Defamation Against defendants County of Humboldt, Humboldt County Sheriff's Office, Humboldt County Sheriff Michael Downey, Deputy Sheriff Wayne Hanson)"; (8) "(Intentional Infliction of Emotional Distress against all defendants)"; and (9) "(Negligent Infliction of Emotional Distress against all defendants)."

The state and county defendants filed separate general demurrers on various grounds, one of which was that all of plaintiff's "state-law claims are barred by collateral estoppel." In connection with thedemurrers, the trial court was asked to take judicial notice of Judge Gilliam's order.

Plaintiff's response was unusual: after filing a fourth amended complaint, he filed no response to the demurrers, causing the state and county defendants to each file a separate "notice of non-opposition," arguing that "Plaintiff's failure to oppose defendants' demurrer constitutes a concession that defendants' demurrer to the Third Amended Complaint is meritorious and should be sustained."

Some background came out at the hearing on the demurrers. The court noted, "Plaintiff's counsel did not file any opposition, as was directed by this court. Instead, . . . the fourth amended complaint was filed." (Italics added.) Counsel for plaintiff explained that she thought the filing of the fourth amended complaint mooted the demurrers:

"I would like to formally object to the Court going forward on hearing for the demurrer to the third amended complaint.

"Because at this point, once the clerk's office filed our fourth amended complaint, then basically that complaint was superseded by the fourth.

"And as the result . . . the demurrer should have been taken off calendar.

"So, I guess to—just as long as I want to formally enter that objection to having any hearing on the demurrer, period.

"So basically, Your Honor, as I said, I'm very perplexed [why] we are even here."

When the court pointed out that, "You failed to get leave from the Court" to file the fourth amended complaint, plaintiff's counsel responded, "We are not required to."

After some discussion on whether the fourth amended complaint was properly filed, the court asked plaintiff's counsel "are you addressing now, today, defendants' demurrer?" The response: "I'm addressing now, today, the fact that we should not be here. . . . [¶] . . . [¶] Because, basically, we were never required to oppose the demurrer. [¶] Once we filed our fourth amended complaint their demurrer was moot. That is why we did not file an opposition because we weren't required to."

At the request of one of the defense attorneys, and over plaintiff's objection, the court took judicial notice of "the entire federal file" (which had been lodged with the court). Plaintiff's counsel took the position that "what happened in the federal court is not relevant in this court, [to] these state proceedings."

The last point made before the court adopted its tentative ruling came from one of the defense attorneys:

"One more thing, Your Honor. I would essentially say that the plaintiff has waived everything that she's said today by not raising it.

"She says that the defendants should have alerted her to striking the fourth amended complaint. But, in fact, the state's non-opposition states plaintiff's fourth amended complaint should be stricken, because it's improperly filed without leave of court.

"So, what do are [sic] we doing here listening to oral argument that has not been put before the Court.

"This was set on February 27th, so—this—she [plaintiff's attorney]'s waived all of this by not responding."

The minutes for the day, March 14, 2018, recite that the trial court heard argument from the parties, granted the request for judicialnotice of "the entire federal proceedings" which "had been lodged" with the court, and confirmed the tentative ruling that "All causes of action have been dismissed." A month later, the court filed its "order sustaining demurrers without leave to amend and judgment of dismissal." The pertinent language was (with minor editorial changes) as follows:

"As to the first cause of action for negligent use of deadly force asserted against defendant Harkness, demurrer is sustained without leave to amend pursuant to Government Code § 911.2, for plaintiff's failure to allege compliance with the Government Claims Act or allege a basis for noncompliance. The Court takes judicial notice that defendant Harkness was employed as a police officer by the City of Eureka at all material times based on filings in the Federal case, specifically the Declaration of defendant Harkness in Support of defendants' Motion for Summary Judgment. Demurrer is also sustained without leave to amend on this basis in favor of defendant Harkness as to every other cause of action in the complaint.

"As to the second cause of action for violation of the Bane Act, the third cause of action for assault and battery, the fourth cause of action for conversion, the fifth cause of action for false arrest, the eighth cause of action for intentional infliction of emotional distress, and the ninth cause of action for negligent infliction of emotional distress, the demurrers are sustained without leave to amend. Plaintiff is precluded from bringing these claims under the doctrine of collateral estoppel, based on the findings and conclusions set forth in the Order Granting Summary Judgment issued in the Federal case.

"As for the sixth cause of action, for failure to properly train and supervise, demurrer is sustained without leave to amend on the ground that the County of Humboldt cannot be liable as a matter of law under Government Code § 815[, subd.] (a) under any common law theory, on the ground that neither defendant Downey nor ...