Glair v. Cho

• Decision Date: 26 February 2015
• Docket Number: B250421
• Court: California Court of Appeals Court of Appeals
• Parties: RICHARD J. GLAIR, Plaintiff and Appellant, v. HEE BAE CHO, CHRISTOPHER GOMEZ AND SPIRO RODITIS, Defendants and Respondents.

RICHARD J. GLAIR, Plaintiff and Appellant, v. HEE BAE CHO, CHRISTOPHER GOMEZ AND SPIRO RODITIS, Defendants and Respondents.

B250421

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

February 26, 2015

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BC485686)

APPEAL from a judgment of the Superior Court of Los Angeles County. Mary Anne Murphy, Judge. Affirmed.

Richard J. Glair, in pro. per. for Plaintiff and Appellant.

Michael N. Feuer and Kjehl T. Johansen for Defendants and Respondents.

Richard J. Glair appeals the judgment entered following the successful demurrers of defendants Spiro Roditis, Hee Bae Cho, and Christopher Gomez. We agree with the trial court that res judicata barred Glair's litigation of the claims, and conclude that the court did not abuse its discretion in declaring Glair a vexatious litigant. Consequently, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Glair was arrested on January 25, 2005 by Los Angeles Police Department Officers Roditis and Gomez, based on allegations that Glair stalked Cecelia Mann, a City of Los Angeles ("City") employee. Glair was booked for violation of Penal Code section 646.9 upon the approval of Officer Cho. Charges were not filed against Glair, and he was released from custody the next day. On the same day as his release, the City filed a petition for a permanent injunction pursuant to Code of Civil Procedure section 527.8¹ seeking to prohibit Glair from engaging in violence or threatening violence against Mann. The City obtained ex parte a temporary restraining order against Glair pending trial on the petition for a permanent injunction. Following a bench trial, the City obtained a permanent injunction for a workplace violence protective order on behalf of Mann, which enjoined Glair from coming within 100 yards of Mann and within 10 yards of any entrance to Queen Anne Park, where Mann worked as the park's director, for a period of three years. Glair's appeal was dismissed for lack of jurisdiction. (City of Los Angeles v. Glair (2007) 153 Cal.App.4th 813, 816.)

Glair filed a claim with the City clerk on July 25, 2005, alleging that he was falsely arrested, and that his First Amendment, due process and equal protection rights were violated. By letter dated November 8, 2005, the City denied the claim.

On May 4, 2006, Glair filed a suit in federal court against the City and "various employees and advisors of the City," including Roditis and Gomez, alleging both federal and state law claims. He asserted that Officers Roditis and Gomez violated federal law under the First and Fourth Amendments when they arrested him, and also alleged state law claims for false arrest, intentional infliction of emotional distress, and violation of civil rights under Civil Code section 52.1. The district court granted summary judgment on all state and federal causes of action, ruling as a matter of law that Roditis and Gomez had probable cause to arrest him for stalking Ms. Mann, and that the officers did not threaten, coerce or intimidate Glair, and thus did not violate Civil Code section 52.1.

After the Ninth Circuit Court of Appeals affirmed the grant of summary judgment against him, Glair filed the instant action, alleging that Roditis, Cho and Gomez violated Civil Code section 52.1 and falsely arrested him on January 25, 2005. Roditis demurred to the complaint, but Cho and Gomez neither answered nor demurred. The trial court granted Roditis's demurrer with leave to amend. On September 17, 2012, Glair filed a first amended complaint, with a proof of service indicating that he personally delivered a copy to Deputy City Attorney Wendy Shapero. Roditis again demurred. The trial court granted this demurrer as well, with leave to amend. Glair filed a second amended complaint, which contained factual allegations not present in the original or first amended complaints. The attached proof of service stated that Glair mailed a copy to Deputy Shapero. The trial court granted Roditis's demurrer to the second amended complaint, ruling that res judicata barred the instant litigation. Judgment in favor of Roditis was entered on May 9, 2013.

In July 2013, Glair twice submitted written requests for entry of default as to Cho and Gomez, which were twice rejected for filing by the court clerk because they did not contain all required information. On August 8, 2013, Cho and Gomez filed a demurrer to the second amended complaint, and also moved to have Glair declared a vexatious litigant and for a pre-filing order pursuant to Code of Civil Procedure section 391. On September 23, 2013, Glair filed a motion to compel the clerk to enter a default judgmentagainst the officers, and on October 10, 2013, filed a "Motion to Strike Defendant[]s' Answer to Second Amended Complaint."²

After a hearing on November 5, 2013, the trial court sustained without leave to amend the officers' demurrer to the second amended complaint; denied Glair's motion to strike; and declared Glair a vexatious litigant subject to a pre-filing order. Judgment was entered on December 5, 2013.

Glair timely appealed from the May 9, 2013 judgment in favor of Roditis, the December 5, 2013 judgment in favor of Cho and Gomez,³ and the order declaring him a vexatious litigant.

DISCUSSION

1. Res judicata barred Glair's prosecution of the instant lawsuit

The trial court ruled that res judicata barred Glair's claims of false arrest and violation of Civil Code section 52.1. Glair challenges this ruling on appeal.

"As generally understood, '[t]he doctrine of res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy.' (7 Witkin, Cal. Procedure (4th ed. 1997) Judgment, § 280, p. 820.) The doctrine 'has a double aspect.' (Todhunter v. Smith (1934) 219 Cal. 690, 695.) 'In its primary aspect,' commonly known as claim preclusion, it 'operates as a bar to the maintenance of a second suit between the same parties on the same cause of action. [Citation.]' (Clark v. Lesher (1956) 46 Cal.2d 874, 880.) 'In its secondary aspect,' commonly known as collateral estoppel, '[t]he prior judgment . . . "operates" in 'a second suit . . . based on a different cause of action . . . "as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action." [Citation.]' (Ibid.) 'The prerequisite elements for applying the doctrine to either anentire cause of action or one or more issues are the same: (1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding. [Citations.]' (Brinton v. Bankers Pension Services, Inc. (1999) 76 Cal.App.4th 550, 556.)" (People v. Barragan (2004) 32 Cal.4th 236, 252-253.)

Here, Glair's prior lawsuit in federal court, Glair v. City of Los Angeles, CV06-02730 R (RNBx), contained the identical state law causes of action, for false arrest and violation of Civil Code section 52.1, as are alleged in the present case. The federal district court entered summary judgment against Glair on both claims. It ruled as a matter of law that "Plaintiff cannot prove that Defendant City of Los Angeles is liable for false arrest because Defendants Roditis and Gomez had probable cause to arrest him on January 25, 2005. . . . [¶] Plaintiff cannot prove that Defendant City of Los Angeles is liable under California Civil Code section 52.1 as Defendants Roditis and Gomez did not threaten, coerce or intimidate Plaintiff."

On appeal to the Ninth Circuit, Glair waived any challenge to summary judgment of his state law claims by failing to address them. (Glair v. City of Los Angeles (9th Cir. 2011) 437 Fed. Appx. 581.) Said the court: "We do not consider whether the district court erred in granting summary judgment on Glair's state law claims. See Greenwood v. F.A.A., 28 F.3d 971, 977-78 (9th Cir. 1994) (matter not specifically and distinctly argued in opening brief is waived on appeal)." (Ibid.) Since the district court's rulings on Glair's state law claims went unchallenged, the prior adjudication of Glair's state law claims resulted in a final judgment on the merits.

Glair argues that res judicata does not apply here because the district court granted summary judgment based on qualified immunity, which is not a defense to state claims of false arrest and violation of Civil Code section 52.1. However, the district court did not grant defendants summary judgment on Glair's state law claims based on qualified immunity; that defense was relevant only with respect to his federal Fourth Amendment claim. Thus, while the district court granted summary judgment on some of Glair'sclaims based in part on qualified immunity, it did so only with respect to his federal claims.

In sum, because the district court specifically found that Officers Roditis and Gomez had probable cause to arrest Glair for stalking on January 25, 2005, the principles of res judicata prohibit Glair from relitigating the lawfulness of his arrest in this proceeding.

2. Denial of Glair's motion to strike

Glair moved to strike the demurrer of Cho and Gomez. The basis of the motion was that the demurrer was untimely, having been filed eight months after the second amended complaint was filed and served on the Deputy City Attorney. On appeal, Glair contends the trial court abused its discretion in denying his motion to strike.

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