Fuentes v. Berry

• Decision Date: 16 October 1995
• Docket Number: No. A063376,A063376
• Citation: 38 Cal.App.4th 1800,45 Cal.Rptr.2d 848
• Court: California Court of Appeals Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 8127, 95 Daily Journal D.A.R. 13,929 Heriberto FUENTES, Jr., et al., Plaintiffs and Appellants, v. Virlee BERRY et al., Defendants and Respondents.

Page 848

45 Cal.Rptr.2d 848

38 Cal.App.4th 1800, 95 Cal. Daily Op. Serv. 8127,

95 Daily Journal D.A.R. 13,929

Heriberto FUENTES, Jr., et al., Plaintiffs and Appellants, v. Virlee BERRY et al., Defendants and Respondents.

No. A063376.

Court of Appeal, First District, Division 4, California.

Oct. 16, 1995.

Rehearing Denied Nov. 2, 1995.

Review Denied Jan. 24, 1996.

Daniel L. Mitchell and Debra A. Hayes, Hayes & Mitchell, Oakland, for plaintiffs and appellants.

Ann Brick, Edward M. Chen, American Civil Liberties Union Foundation of Northern California, San Francisco, Jerome B. Falk, Jr., Barbara A. Winters, Michael H. Page, Howard, Rice, Nemerovski, Canady, Robertson, Falk & Rabkin, A Professional Corporation, San Francisco, for defendants and respondents.

REARDON, Associate Justice.

Appellants Heriberto Fuentes Jr., Robert R. Villa, and Ronald R. Jones, police officers employed by the City of Alameda (appellants or the officers), brought an action for malicious institution of a civil proceeding (commonly referred to as "malicious prosecution") against respondents Virlee Berry (Berry), her husband Edward Berry, and her sister Betty Williams. Berry was the sole plaintiff in the underlying action, a federal civil rights suit. ¹

In March 1990, the superior court entered a summary judgment against the officers on the ground that the federal suit had not been terminated in their favor. In January 1991, we concluded that a triable issue existed as to whether the termination of the federal suit was in fact the result of a settlement or was instead a voluntary dismissal with prejudice reflecting on the merits of the case. We reversed the summary judgment. (Fuentes v. Berry (Jan. 22, 1991) A049265 [nonpub. opn.].)

On remand, Berry's attorneys conducted discovery directed to the issue of whether or not the federal suit was terminated in favor of the officers. In June 1993, they filed a second motion for summary judgment in the superior court, claiming that it could no longer genuinely be disputed that (1) the underlying federal action was terminated as a result of a settlement, a condition of which required the officers be dismissed from the suit; and (2) the officers ratified the settlement of the underlying action both by not taking some action to set aside their dismissals and by accepting the benefits of the dismissals. In support of this second motion for summary judgment, Berry's attorneys cited Villa v. Cole (1992) 4 Cal.App.4th 1327, 6 Cal.Rptr.2d 644, a case very similar to this one filed in March 1992 by Division Three of this court. ²

In opposition to the motion for summary judgment, the officers argued that (1) this court's first opinion filed in January 1991 is the "law of the case" and should be followed by the trial court; (2) in any event, Villa is distinguishable on its facts; and (3) there remains a triable issue of a material fact relating to the issue of favorable termination.

In August 1993, the trial court granted the motion for summary judgment, finding that there was no triable issue of fact with respect to the issue of favorable termination. The court explained: "It cannot genuinely be disputed that the dismissal of Plaintiffs in the underlying federal and state actions was a condition of the settlement among Virlee Berry and the City of Alameda and its Police Chief, and as such this action is barred pursuant to the rule of Villa v. Cole, 4 Cal.App.4th 1327, 6 Cal.Rptr.2d 644 (1992). Alternatively, it cannot genuinely be undisputed [sic ] that Plaintiffs ratified the settlement by accepting benefits of the dismissals and failing to take any action to set them aside. For this alternate reason as well, this action is barred pursuant to the rule of Villa v. Cole. [p] For the foregoing reasons, Defendants' Motion is granted as to the entire Complaint and with respect to all Plaintiffs."

The officers appealed. Once again, we reverse the summary judgment.

I. STANDARD OF REVIEW

A motion for summary judgment must be granted by the trial court if all the affidavits, declarations, and other supporting papers show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ.Proc., § 437c, subd. (c).) Under the statute as applicable in 1993 when this summary judgment motion was filed and granted, a defendant who moved for summary judgment could meet his or her initial burden of showing that a cause of action had no merit by showing that one or more elements of the cause of action, even if not separately pleaded, could not be established or that there was a complete defense to that cause of action. Once the defendant made that showing, the burden shifted to the plaintiff to show that a triable issue of one or more material facts existed as to that cause of action. (Code Civ.Proc., § 437c, former subd. (n)(2) [now subd. (o)(2) ]; see Stats.1992, ch. 1348, § 1; see Jambazian v. Borden (1994) 25 Cal.App.4th 836, 843-844, 30 Cal.Rptr.2d 768.) An appellate court determines de novo whether a genuine issue of material facts exists and the moving party is entitled to summary judgment as a matter of law. (Jambazian v. Borden, supra, at p. 844, 30 Cal.Rptr.2d 768; Wilson v. Blue Cross of So. California (1990) 222 Cal.App.3d 660, 670, 271 Cal.Rptr. 876.)

Even if we assume that Berry has initially shown that an element of the cause of action cannot be established, we conclude that a triable issue as to a material fact continues to exist concerning whether the termination of the federal suit was the result of a settlement or was instead a voluntary dismissal reflecting on the merits of the case.

II. FACTS ³

A. Background

This litigation had its origin in a traffic encounter involving Berry and the City of Alameda police in March 1986. She apparently disregarded directions given by traffic control officers, drove off, and was later stopped and taken into custody by appellants. Berry was initially charged with resisting arrest and three Vehicle Code violations. On February 13, 1987, she entered a plea of no contest to unlawful flight from a peace officer. (Veh.Code, § 2800.1)

B. Civil Rights Proceedings

Four days after her no contest plea in state court, Berry filed a complaint in the United States District Court of the Northern District of California (Berry v. City of Alameda et al. (1987), No. C 87 0606) against the City of Alameda, its police chief, and the three officers herein, alleging four causes of action in violation of the federal civil rights laws (42 U.S.C. §§ 1981, 1983) and four state tort causes of action. The essence of her complaint was that the officers pulled her vehicle over and, without justification, forcefully removed her from the vehicle and beat her without provocation.

Berry was represented in the federal proceedings by Attorney Rufus L. Cole. The city, its police chief and the three officers were represented by City Attorney Carter J. Stroud. Attorney Daniel L. Mitchell was also associated as counsel by the city attorney to provide representation in the case.

As the civil rights action moved toward trial, Cole and Stroud corresponded on the possibilities of settlement. This correspondence reveals the officers' reluctance to fully settle the matter. For example, on June 21, 1988, Stroud suggested that Cole delete certain language from a release form prepared by Cole which would have precluded a later malicious institution of a civil proceeding lawsuit by the officers. Initially, Stroud wrote Cole that the case "can be settled if the officers are not required to sign anything." But a few days later, on June 28, Stroud wrote: "The officers have now refused even to consent to a settlement if there is no requirement to sign releases. No settlement is now possible."

Nevertheless, on November 1, 1988, the day set for trial, Attorneys Stroud and Cole met in chambers with the federal court judge to set forth the terms of a settlement they had reached. Berry and her husband sat in on the latter portions of the in-chambers proceeding. The three officers were not present. ⁴ Announcing himself as appearing "for defendants," City Attorney Stroud proposed to "put the settlement on the record." During discussions between court and counsel, the attorneys revealed that no private written settlement agreement existed between the parties. Instead, the attorneys proposed that they state their understanding for the record, that there be dismissals with prejudice, but that no judgment be entered in the court's record. ⁵

Stating his understanding for the record, City Attorney Stroud said: "The three officers would be dismissed with prejudice. They're not willing to sign releases or any kind of agreement. They will just be out of the case. [p] The city, in return for its release with prejudice, would pay to the plaintiff $15,000. That would settle the 1981 [civil rights] action, which is still pending against the city and would preclude an appeal by defendants on the summary judgment granted by this court." Stroud also mentioned that the officers were adamant that the terms of the settlement not be discussed with the press, as "they've really had quite enough of having their names in the paper on this basis. [p] So that--those are the terms."

Berry's attorney acknowledged that "the agreement as stated by Mr. Stroud basically reflects my understanding of the agreement." He added that Berry was present in court as the sole plaintiff and that if she had any questions, she could address the court, if she desired.

When the court asked Berry if she understood the terms of the settlement agreement, she raised a question about what Mr. Stroud had said in relation to the release. The court explained that Berry was to "sign and deliver to the City the normal type of release releasing all claims that you now have against the City for any matters that may have arisen up to now from the beginning of time."

The following exchange...