Hernandez v. City of Pomona, B182437.

CourtCalifornia Court of Appeals
Citation145 Cal.App.4th 701,51 Cal.Rptr.3d 846
Decision Date06 December 2006
Docket NumberNo. B182437.,B182437.
PartiesBonnie HERNANDEZ, as Administrator, etc., et al., Plaintiffs and Appellants, v. CITY OF POMONA et al., Defendants and Respondents.
51 Cal.Rptr.3d 846
145 Cal.App.4th 701
Bonnie HERNANDEZ, as Administrator, etc., et al., Plaintiffs and Appellants,
CITY OF POMONA et al., Defendants and Respondents.
No. B182437.
Court of Appeal, Second District, Division 7.
December 6, 2006.

[51 Cal.Rptr.3d 849]

Moreno, Becerra, Guerrero & Casillas, Danilo J. Becerra, Montebello, and Lizette V. Espinosa for Plaintiffs and Appellants.

Alvarez-Glasman & Colvin and Roger A. Colvin, West Covina, and Sean M. Beehler for Defendants and Respondents.


The plaintiffs in this negligence action are the parents, wife, seven minor children and estate of decedent George Hernandez who, while fleeing arrest, was shot 22 times by police officers of the City of Pomona. Defendants are the four officers involved in the shooting and the city.

Plaintiffs appeal from the judgment after the trial court sustained defendants' demurrer to their complaint without leave to amend. The issue is whether, in a civil rights action filed in federal court, the jury's special verdict in favor of the city and three of its police officers and the district court's Rule 50 judgment in favor of a fourth officer preclude the same plaintiffs from bringing a negligence action in state court against the same defendants based on the same facts. Under the circumstances here we conclude police officers cannot escape liability for negligence if they put themselves unnecessarily in harm's way and must then shoot their way out of it.1


The Federal Civil Rights Action

Plaintiffs initially sued the police officers and the city in federal district court alleging causes of action for negligence under state law and violation of Hernandez's civil rights under federal law2 —specifically the right under the Fourth

51 Cal.Rptr.3d 850

Amendment to be free from "unreasonable" seizure.3 The complaint stated: "[Hernandez] was being chased on foot by [the officers] and indicated to them that he was unarmed. He turned towards them and raised his empty hands in the air. At that time, [the officers] fired their firearms striking [Hernandez] with fatal gunshots." Plaintiffs further alleged Hernandez was unarmed and the shooting was "without reasonable cause."

The district court bifurcated the state and federal claims and only the federal civil rights cause of action went to trial. The jury returned a special verdict in favor of the city and three of the officers, Cooper, Devee and Luna, finding these officers did not "violate George Hernandez's Fourth and Fourteenth Amendment rights by using excessive force against him." The jury could not reach a verdict as to the fourth officer, Sanchez.

Following the trial, defense counsel moved for judgment as a matter of law in favor of Sanchez under Rule 50 of the Federal Rules of Civil Procedure.4 Based on the evidence presented at trial, the district court found Sanchez and the other officers had cause to believe Hernandez was armed, even though it turned out he was not. "Sanchez found himself in a situation that he reasonably believed would threaten his life if he did not act immediately." Therefore, the court concluded, Sanchez's "use of deadly force was reasonable under the circumstances." The court further found Sanchez was entitled to qualified immunity even if he had violated Hernandez's civil rights because he "reasonably could have believed his conduct was lawful under the circumstances."

Based on the jury's verdict and the Rule 50 judgment in favor of the defendants the district court declined to assume supplemental jurisdiction over plaintiffs' state law negligence claim and dismissed it without prejudice. The court entered a judgment in favor of the city and the four police officers. This judgment is now final.

The State Court Action

After a final judgment was entered in the federal court plaintiffs commenced the present action against the same defendants alleging causes of action for assault and battery and negligence. The negligence cause of action was based on two theories. The first theory alleged "[t]he shooting of [Hernandez] occurred as a result of the absence of due care for the safety of others and constituted an unreasonable, unwarranted and excessive use of force, and said shooting manifested an unreasonable risk of injury to [Hernandez]." The second theory alleged that having inflicted a life-threatening injury on Hernandez defendants "intentionally and/or negligently ... failed, delayed and refrained from timely contacting or summoning medical aid [and] after said emergency medical assistance arrived, defendants knowingly and willfully prevented said assistance from being provided to [Hernandez]."

Defendants demurred to the complaint on the grounds the federal court judgment

51 Cal.Rptr.3d 851

and the applicable statute of limitations barred this action. They requested the trial court take judicial notice of the complaint, the judgment and the Rule 50 order in the federal court action as well as plaintiffs' tort claims filed with the city. The trial court granted this request.

As we discuss more fully below, the trial court rejected defendants' statute of limitations argument but concluded the federal court judgment barred plaintiffs' cause of action for negligence with respect to "any and all claims related to use of force and excessive force." (Italics added.) Plaintiffs interpreted this ruling to mean they could proceed on their negligence cause of action only on the theory defendants failed to timely summon medical assistance for Hernandez and interfered with the provision of such assistance once it arrived. Plaintiffs chose not to pursue their negligence cause of action solely on the theory defendants failed to provide timely medical assistance to Hernandez. Instead, plaintiffs and defendants entered into a stipulation in which plaintiffs struck and dismissed that allegation with prejudice in order to expedite plaintiffs' ability to challenge on appeal the court's ruling sustaining defendants' demurrer to the negligence cause of action based on the negligent shooting theory. The trial court approved the stipulation and ordered the complaint dismissed. Plaintiffs filed a timely appeal from the final judgment dismissing their action.5


California appellate courts have reached conflicting conclusions as to whether a judgment for defendants in a federal court action under 42 U.S.C. section 1983 (section 1983) alleging excessive force in violation of the Fourth Amendment precludes a state court action for negligence against the same defendants by the same plaintiffs.6

Based on the procedural circumstances of the case before us we conclude neither res judicata nor collateral estoppel preclude plaintiffs' negligence action against the defendants on the theory defendants' negligent conduct and violation of proper police procedures in effecting Hernandez's arrest was the proximate cause of their use of deadly force against Hernandez.


A. Grounds For Asserting Res Judicata—The Primary Rights Theory

Under the doctrine of res judicata a valid, final judgment on the merits precludes parties or their privies from relitigating the same "cause of action" in a subsequent suit.7 "Under this doctrine, all claims based on the same cause of action

51 Cal.Rptr.3d 852

must be decided in a single suit; if not brought initially, they may not be raised at a later date. `"Res judicata precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory or for different relief."' [Citation.]"8

California law defines a "cause of action" for purposes of the res judicata doctrine by analyzing the primary right at stake: "[A] `cause of action' is comprised of a `primary right' of the plaintiff, a corresponding `primary duty of the defendant, and a wrongful act by the defendant constituting a breach of that duty. [Citation.] The most salient characteristic of a primary right is that it is indivisible: the violation of a single primary right gives rise to but a single cause of action. [Citation.] A pleading that states the violation of one primary right in two causes of action contravenes the rule against `splitting' a cause of action. [Citation.]"9 "As far as its content is concerned, the primary right is simply the plaintiffs right to be free from the particular injury suffered. [Citation.] It must therefore be distinguished from the legal theory on which liability for that injury is premised."10

"`[I]f two actions involve the same injury to the plaintiff and the same wrong by the defendant then the same primary right is at stake even if in the second suit the plaintiff pleads different theories of recovery, seeks different forms of relief and/or adds new facts supporting recovery. [Citations.]'"11 "`... If the matter was within the scope of the action, related to the subject matter and relevant to the issues, so that it could have been raised, the judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise urged.... The reason for this is manifest. A party cannot by negligence or design withhold issues and litigate them in consecutive actions. Hence the rule is that the prior judgment is res judicata on matters which were raised or could have been raised, on matters litigated or litigable. [Citations.]' [Citation.]"12

California courts have disagreed over whether an action for violation of the Fourth Amendment's prohibition against unreasonable seizures implicates the same primary right as an action for violation of the right to be free from negligent personal injury.

In Mattson v. City of Costa Mesa plaintiff filed a section 1983 action against the city and two of its police officers alleging the officers had "knowingly and without provocation or probable cause assaulted [him] and...

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    • United States
    • California Court of Appeals
    • December 6, 2006
    ...judgment is reversed and the case remanded to the trial court for further proceedings. Plaintiffs shall recover their costs on appeal. 51 Cal.Rptr.3d 846 Defendants' motion to strike, filed February 10, 2006, is denied. The request for leave to submit supplemental briefing included in the m......
  • Ryan v. Napier, CV-17-0325-PR
    • United States
    • Supreme Court of Arizona
    • August 23, 2018
    ...may have played a part in the decision to fire." (citation and internal quotation marks omitted) ); Hernandez v. City of Pomona , 145 Cal.App.4th 701, 51 Cal.Rptr.3d 846, 859–60 (2006) (concluding that a wrongful death complaint for shooting a fleeing suspect was sufficient to plead neglige......

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