Hernandez v. City of El Monte

Decision Date03 March 1998
Docket NumberNos. 95-56731,95-56736,s. 95-56731
Parties, 98 Cal. Daily Op. Serv. 1490, 98 Daily Journal D.A.R. 2071 Margot HERNANDEZ, and as Guardian ad Litem for minors Joana Hauri & Lizeth Simones; Elizabeth Carmona; Celia Gallardo; Anaberta Pule; Juan Damaso; Edith Navarette, and as Guardian ad Litem for Armando Gallardo; Gelacio Herrera; Armando Nmi Avila; Salvador Ayala; Alciviadez Ayala; Silvia Garduno; Angel Justo Palma, Plaintiffs-Appellants, v. CITY OF EL MONTE; Wayne Clayton, Chief of Police, City of El Monte, CA.; George Hopkins, Sgt.; Marci Smith, Sgt.; George Mendoza, Agent, Defendants-Appellees. Raul Duron GARZA; Margot Hernandez, and as Guardian ad Litem for minors Joana Hauri & Lizeth Simones; Elizabeth Carmona; Celia Gallardo; Anaberta Pule; Juan Damaso; Edith Navarette, and as Guardian ad Litem for Armando Gallardo; Gelacio Herrera; Armando Nmi Avila; Salvador Ayala; Alciviadez Ayala; Silvia Garduno; Angel Justo Palma, Plaintiffs-Appellants, v. CITY OF EL MONTE; Wayne Clayton, Chief of Police, City of El Monte, CA.; George Hopkins, Sgt.; Marci Smith, Sgt.; George Mendoza, Agent, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Robert M. Neubauer, Thomas E. Beck & Associates, Los Angeles, California, for plaintiffs-appellants.

Ann M. Maurer, Franscell, Strickland, Roberts & Lawrence, Pasadena, California, for defendants-appellees.

Appeal from the United States District Court for the Central District of California; Manuel L. Real, District Judge, Presiding. D.C. Nos. CV-95-03912-R(JM), CV-95-05807-R(JM).

Before: FLETCHER and PREGERSON, Circuit Judges, and WEXLER, * District Judge.

PREGERSON, Circuit Judge:

The plaintiffs appeal from the district court's dismissal of Hernandez v. City of El Monte ("Hernandez ") for judge-shopping and lack of prosecution. The plaintiffs appeal from the district court's dismissal of Garza v. City of El Monte ("Garza ") for judge-shopping and failure to timely file within the statute of limitations. We have jurisdiction under 28 U.S.C. § 1291. We reverse the dismissal of Hernandez. We affirm the dismissal of Garza, without prejudice.

FACTS AND PRIOR PROCEEDINGS

The Hernandez and Garza actions involve the same events and the same parties. The plaintiffs in each case are Spanish-speaking individuals who attended a party at a private residence in El Monte, California, on the evening of June 11, 1994. Shortly before midnight, El Monte police officers arrived at the scene in response to a complaint about a loud party at the same location. The plaintiffs allege that the police officers addressed them in English, a language that the plaintiffs do not understand, and became irritated when the plaintiffs failed to respond to the officers' commands. According to the plaintiffs, the police officers then attacked them with their fists, batons, flashlights, and chemical sprays. The melee that ensued ended sometime after midnight, on the morning of June 12, with the arrests of plaintiffs Garza, Avila, and Palma.

On June 12, 1995, exactly one year after the incident, the plaintiffs filed the Hernandez action in federal district court. The Hernandez complaint alleges causes of action under 42 U.S.C. §§ 1983 and 1985 against the City of El Monte, the El Monte Chief of Police, and several police officers (collectively, the "defendants"). Specifically, the Hernandez complaint alleges that the defendants deprived the plaintiffs of their constitutional rights through the use of excessive force, false arrest, conspiracy, malicious prosecution, obstruction of justice, cruel and unusual punishment, and unlawful search and seizure. On June 23, the plaintiffs received a notice that Hernandez had been assigned to Judge Manuel L. Real. The plaintiffs did not serve the Hernandez complaint upon the defendants.

On July 11, the plaintiffs filed the Garza action against the same defendants in California Superior Court. The Garza complaint is virtually identical to the Hernandez complaint, naming the same parties and the same causes of action. The only difference between the two complaints is that the names of individual parties have been shuffled so that the captions read differently. The Garza complaint was served upon all defendants on August 1.

On August 29, the defendants removed Garza to federal court pursuant to 28 U.S.C. §§ 1446 and 1447. Garza was initially assigned to Judge John G. Davies. On September 17, the defendants filed a notice of related cases under C.D. Cal. R. 4.3.1, stating that Garza and Hernandez arose from the same events and raised the same questions of law and fact. The defendants requested that Garza be transferred to Judge Real to avoid a substantial duplication of labor. 1

Also on September 17, the defendants filed a motion to dismiss Garza pursuant to Fed.R.Civ.P. 12(b)(6). The defendants asserted that the Garza complaint was not timely filed On September 22, Judge Real issued to the plaintiffs an order to show cause ("OSC") why the Hernandez action should not be dismissed for lack of prosecution pursuant to C.D. Cal. R. 12, which provides for dismissal of civil actions that are "pending for an unreasonable period of time." 2 At the OSC hearing on October 2, Judge Real warned the plaintiffs that in "filing the Federal suit you're running close to your 120 days so I'll put this over to October 30th, 1995, at 11:00 a.m. and see what's happened." Judge Real apparently was referring to the 120-day-rule of Fed.R.Civ.P. 4(m), which requires a plaintiff to serve the summons and complaint upon the defendant within 120 days after the time of filing. 3 On the same day of this initial OSC hearing, Garza was transferred from Judge Davies to Judge Real (hereinafter referred to as "the district court"). On October 3-the day after the OSC hearing-the plaintiffs served the defendants with the summons and complaint in the Hernandez action.

within the one-year statute of limitations for actions under 42 U.S.C. §§ 1983 and 1985. The defendants further asserted that the Garza complaint failed to state a cause of action against all defendants under 42 U.S.C. § 1985(2) and (3).

Another hearing on the OSC in Hernandez and the motion to dismiss Garza was held on October 30. At this hearing, the district court asked the plaintiffs' attorney why he had filed the Garza complaint in state court after having filed the identical Hernandez complaint in federal district court.

COURT:Mr. Beck, why did you file a claim in State Court when you already had a claim pending here?

BECK:It was my intent to let this case go.

COURT:Why?

BECK: Because I wanted to try the case in Pomona.

COURT: No. Why, Mr. Beck? That is judge shopping. That's judge shopping, and it's very, very transparent....

BECK: ... I get to pick my juries out there. There are certain advantages in filing --

COURT: Well, why did you file here in the first place then --

BECK: Because --

COURT: if you wanted to be in Pomona?

BECK: Because there are discovery advantages in being in Federal Court.

COURT: Where did you want to be, Mr. Beck, in Pomona or here? You filed the case here, I take it, because you wanted to be here. Now you tell me you filed in Pomona because you wanted to be in Pomona. Now, which is it?

BECK: It's both.

COURT: Okay. I'm dismissing both cases because I think it's blatant judge shopping. Both cases are dismissed with prejudice.

BECK: Very well.

COURT: And don't ever do that again or you're going to the Disciplinary Committee, Mr. Beck.

The district court's order dismissing Hernandez with prejudice states that the matter is dismissed "for want of prosecution and plaintiffs' misconduct in blatant judge shopping." The order dismissing Garza with prejudice states that the matter is dismissed "for failure to file and serve within the statute

                of limitations and plaintiffs' misconduct in blatant judge shopping."   The plaintiffs appeal each of these orders
                
STANDARD OF REVIEW

This court has not previously stated the standard of review for a dismissal on grounds of judge-shopping. We have held generally that we review for abuse of discretion a district court's imposition of sanctions pursuant to its inherent powers. See Mark Indus., Ltd. v. Sea Captain's Choice, Inc., 50 F.3d 730, 732 (9th Cir.1995). Accordingly, we will review for abuse of discretion the district court's dismissal of Hernandez and Garza for judge-shopping.

We also review for abuse of discretion the district court's dismissal of Hernandez for lack of prosecution. See Oliva v. Sullivan, 958 F.2d 272, 274 (9th Cir.1992) (reviewing for abuse of discretion a district court's sua sponte dismissal of case for lack of prosecution).

In contrast, we review de novo the district court's dismissal of Garza for failure to timely file within the statute of limitations. See Torres v. City of Santa Ana, 108 F.3d 224, 226 (9th Cir.1997) (reviewing de novo a dismissal for failure to timely file within statute of limitations).

ANALYSIS
A. Judge-Shopping

The plaintiffs filed Garza in state court one month after filing Hernandez in federal court and eighteen days after receiving notice that Hernandez had been assigned to Judge Real. When the district court asked the plaintiffs why they had filed two identical actions, the plaintiffs explained that they had initially filed Hernandez in federal court because of discovery advantages, but then decided to dismiss that action and file Garza in state court to gain advantages in jury selection. The plaintiffs did not explain why they decided to change forums only after Hernandez had been assigned to a particular judge; or why they filed two identical actions under different names. The district court determined that their stated reason for filing the Garza action lacked credibility.

The record is not conclusive. We give special deference, however, to a district court's credibility determinations. See ...

To continue reading

Request your trial
1109 cases
  • Green v. Lisa Frank, Inc., 2 CA-CV 2008-0028.
    • United States
    • Court of Appeals of Arizona
    • 20 Enero 2009
    ...distinction in Korman, we note that § 12-864 permits a trial court to "punish[]" civil contempt. 13. Green cites Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998), for the proposition that "[t]he costs of additional litigation caused by a party's misconduct are insufficient p......
  • State v. Gales
    • United States
    • Court of Appeals of Nebraska
    • 18 Marzo 2005
    ......," which has been characterized as "`conduct which abuses the judicial process.'" See Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998), quoting Chambers v. NASCO, Inc., 501 ......
  • Normandeau v. City of Phoenix
    • United States
    • U.S. District Court — District of Arizona
    • 12 Abril 2005
    ...beyond doubt that the plaintiff can prove no set of facts that would establish the timeliness of the claim.'" Hernandez v. City of El Monte, 138 F.3d 393, 402 (9th Cir.1998) (quoting Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206 (9th Cir.1995)). Indeed, "[d]ismissal on statute ......
  • Wisenbaker v. Farwell
    • United States
    • U.S. District Court — District of Nevada
    • 29 Septiembre 2004
    ...of the claim." Id. at 1207 (citing Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir.1980)). See also Hernandez v. City of El Monte, 138 F.3d 393, 402 (9th Cir.1998). Lastly, this Court notes that "the public policy favoring disposition of cases on their merits counsels strongly again......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT