Mattson v. City of Costa Mesa

• Decision Date: 02 June 1980
• Citation: 106 Cal.App.3d 441,164 Cal.Rptr. 913
• Court: California Court of Appeals Court of Appeals
• Parties: John Otto MATTSON, Plaintiff and Appellant, v. CITY OF COSTA MESA et al., Defendants and Respondents. Civ. 21411.

Page 913

164 Cal.Rptr. 913

106 Cal.App.3d 441

John Otto MATTSON, Plaintiff and Appellant, v. CITY OF COSTA MESA et al., Defendants and Respondents.

Civ. 21411.

Court of Appeal, Fourth District, Division 2, California.

June 2, 1980.

Hearing Denied August 27, 1980.

Steven L. Stern and Richard P. Herman, Newport Beach, for plaintiff and appellant.

Burke, Williams & Sorensen and Richard R. Terzian, Los Angeles, for defendants and respondents.

KAUFMAN, Associate Justice.

Plaintiff John Otto Mattson (plaintiff) appeals from a judgment of dismissal following the court's sustaining demurrers by the defendants, City of Costa Mesa (City) and two police officers in its employ.

Defendants Poling and Kent, police officers employed by the City, made a warrantless arrest of the plaintiff outside of his house around midnight on June 26, 1976. Plaintiff was taken to the Costa Mesa police station, where he was charged with three misdemeanors: public drunkenness, resisting arrest and disturbing the peace. He was released early the following morning. Eventually, the charges against him were dismissed for failure to prosecute. The actions of the officers and plaintiff, respectively, are in dispute as are the questions of probable cause for plaintiff's arrest, the officers' use of excessive force, and their negligence in their arrest and subsequent treatment of plaintiff.

On September 29, 1976, plaintiff presented to City a claim alleging that as a result of the arrest he had suffered $576,797.12 damages. The claim was rejected, and on February 8, 1977, the plaintiff filed a civil action against Poling, Kent and the City in the United States District Court for the Central District of California. The complaint averred that officers Poling and Kent had knowingly and without provocation or probable cause assaulted the plaintiff and then arrested him; that as a result the plaintiff suffered various physical injuries; and that the officers had failed to return $1,000 in cash which they had taken from him while he was detained at the city jail. The complaint was denominated an action to redress violations of the plaintiff's civil rights under color of state law, and it further requested the federal court to take pendent jurisdiction of a nonfederal claim of negligence based on the same facts.

On June 27, 1977, at defendants' urging, the federal court denied plaintiff's request that it take pendent jurisdiction of the state law negligence claim and dismissed City from the action. ¹ Three days later, on June 30, plaintiff filed his complaint in the instant action in the Orange County Superior Court against Poling, Kent and City, alleging the same facts as he had alleged in the federal action but further alleging that Poling and Kent had "negligently assaulted, battered and arrested plaintiff" and "mishandled his personal property."

Apparently plaintiff made no attempt to serve the defendants in the state court action, and it lay dormant for approximately two years while the federal civil rights action proceeded to jury trial. The jury in the federal action returned a unanimous verdict against plaintiff. On a motion by the defendants in the federal action for attorney fees, the court found the action was frivolous and without foundation and assessed plaintiff $2,607.30 attorney fees and costs. Plaintiff has since appealed the federal court decision on the ground that the dismissal of the City was erroneous.

Following the adverse decision in the federal action, plaintiff served the defendants with process in the state court action. Defendants demurred on grounds that the state court action was barred by res judicata or collateral estoppel and the relevant claims period and statute of limitations (Gov. Code, § 945.6; Code Civ.Proc., § 340, subd. 3). The Trial court sustained the demurrers on these grounds and subsequently entered a judgment of dismissal.

I. Collateral Estoppel

If, of course, dispositive factual questions were actually litigated in the federal civil rights action, plaintiff would be collaterally estopped from relitigating those questions in the instant action. (See Levy v. Cohen, 19 Cal.3d 165, 171, 137 Cal.Rptr. 162, 561 P.2d 252; In re Russell, 12 Cal.3d 229, 233, 115 Cal.Rptr. 511, 524 P.2d 1295; Merry v. Coast Community College Dist., 97 Cal.App.3d 214, 221, 158 Cal.Rptr. 603; City of Los Angeles v. Superior Court (Levy), 85 Cal.App.3d 143, 149-150, 149 Cal.Rptr. 320.) However, the collateral estoppel aspect of the doctrine of res judicata applies only to issues that were actually litigated in the first action. (Henn v. Henn, 26 Cal.3d 323, 330, 161 Cal.Rptr. 502, 605 P.2d 10; Clark v. Lesher, 46 Cal.2d 874, 880-881, 299 P.2d 865; Gorman v. Gorman, 90 Cal.App.3d 454, 464, 153 Cal.Rptr. 479; see also City of Los Angeles v. Superior Court (Levy), supra, 85 Cal.App.3d at pp. 149-150, 149 Cal.Rptr. 320.)

Although defendants vigorously assert that the issues of lack of probable cause and excessive force were actually litigated in the federal civil rights action, we are unable to ascertain from the record whether or not that is so. Negligence alone is insufficient to give rise to liability under 42 U.S.C. § 1983. To be entitled to relief under section 1983, plaintiff must at least show intentional conduct in circumstances in which the offending governmental employees were legally bound to know that their conduct would deprive the plaintiff of civil rights. (Monroe v. Pape, 365 U.S. 167, 187, 207, 81 S.Ct. 473, 484, 494, 5 L.Ed.2d 492; Bonner v. Coughlin (7th Cir. 1976) 545 F.2d 565, 567-568; see Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214; Williams v. Field (9th Cir. 1969) 416 F.2d 483.) From the record before us it appears possible that the federal jury determined no more than that defendants Poling and Kent lacked the requisite mens rea.

Thus, we conclude that the judgment cannot be affirmed on the basis of collateral estoppel on the record before us. (Cf. City of Los Angeles v. Superior Court (Levy), supra, 85 Cal.App.3d at pp. 149-150, 149 Cal.Rptr. 320.)

II. Res Judicata (Bar)

However, "(i)n its primary aspect the doctrine of res judicata operates as a bar to the maintenance of a second suit between the same parties on the same cause of action." (Clark v. Lesher, supra, 46 Cal.2d at p. 880, 299 P.2d at p. 868; Henn v. Henn, supra, 26 Cal.3d at p. 329, 161 Cal.Rptr. 502, 605 P.2d 10; Agarwal v. Johnson, 25 Cal.3d 932, 954, 160 Cal.Rptr. 141, 603 P.2d 58; Slater v. Blackwood, 15 Cal.3d 791, 795, 126 Cal.Rptr. 225, 543 P.2d 593.) Under this aspect of res judicata the prior final judgment on the merits not only settles issues that were not actually litigated but also every issue that might have been raise and litigated in the first action. (Olwell v. Hopkins, 28 Cal.2d 147, 152, 168 P.2d 972; Merry v. Coast Community College Dist., supra, 97 Cal.App.3d at pp. 222, 224-225, 158 Cal.Rptr. 603.) It also precludes litigation of the same cause of action on a different legal theory or for different relief. (Slater v. Blackwood, supra, 15 Cal.3d at p. 795, 126 Cal.Rptr. 225, 543 P.2d 593; Merry v. Coast Community College Dist., supra.) In these respects, this aspect of res judicata is closely related to and parallels the rule prohibiting piecemeal litigation by splitting a single cause of action. (See City of Los Angeles v. Superior Court (Levy), supra, 85 Cal.App.3d at pp. 150-151, 149 Cal.Rptr. 320; Merry v. Coast Community College Dist., supra, 97 Cal.App.3d at p. 221, 158 Cal.Rptr. 603; Gorman v. Gorman, supra, 90 Cal.App.3d at p. 464, 153 Cal.Rptr. 479.)

Defendants assert that the cause of action sued upon by plaintiff in the case at bench is the same cause of action as he sued upon in the federal case, that only plaintiff's legal theory is different, and that, therefore, the federal court judgment bars plaintiff's maintenance of this action even if negligence was not actually litigated in the federal court action. ² (See Levy v. Cohen supra, 19 Cal.3d at pp. 173-174, 137 Cal.Rptr. 162, 561 P.2d 252; Slater v. Blackwood, supra, 15 Cal.3d at pp. 795-797, 126 Cal.Rptr. 225, 543 P.2d 593; City of Los Angeles v. Superior Court (Levy), supra, 85 Cal.App.3d at pp. 150-151, 149 Cal.Rptr. 320; Panos v. Great Western Packing Co., 21 Cal.2d 636, 638-640, 134 P.2d 242.)

Although the plaintiff cannot quite bring himself to concede that the cause of action sued upon in the state court is the same as that sued upon in the federal court action, he makes no argument to the contrary. The parties' discussion of the "primary rights" theory employed by California courts in analyzing what constitutes a cause of action (see Agarwal v. Johnson, supra, 25 Cal.3d at p. 954, 160 Cal.Rptr. 141, 603 P.2d 58; Merry v. Coast Community College Dist., supra, 97 Cal.App.3d at p. 227, 158 Cal.Rptr. 603; City of Los Angeles v. Superior Court (Levy), supra, 85 Cal.App.3d at pp. 152-153, 149 Cal.Rptr. 320; 3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 22, p. 1707) indicates that plaintiff's cause of action in the two suits is the same. While the utility of the "primary rights" doctrine as an analytical tool has been questioned (see, e. g., Merry v. Coast Community College Dist., supra, 97 Cal.App.3d at p. 227, fn. 9, 158 Cal.Rptr. 603; City of Los Angeles v. Superior Court (Levy), supra, 85 Cal.App.3d at p. 153, 149 Cal.Rptr. 320), the singlemost determinative factor is the substantive right of the plaintiff allegedly violated, the harm suffered. (Agarwal v. Johnson, supra ; see also City of Los Angeles v. Superior Court (Levy), supra, 85 Cal.App.3d at p. 153, 149 Cal.Rptr. 320.)

Defendants assert and plaintiff does not contest that the two primary rights of plaintiff that were the basis of the federal court action are the same as those that constitute the basis for this action. Those rights are two aspects of plaintiff's interest in personal security and integrity: (1) the right to be free from personal injury,...