Schmidlin v. City of Palo Alto

Dist. H026841. Sixth Dec. 2007.] [No. SCHMIDLIN, Plaintiff Appellant,

MICHAEL al., PALO ALTO et Defendants and Appellants. THE CITY OF Counsel

Mark Martel for Plaintiff and Appellant. Larkin, Baum, M. William B. and Donald A.

Gary City Attorney, Mayfield Assistant for Defendants and City Attorneys, Appellants.

Opinion RUSHING, Schmidlin P. J. Michael action against brought Plaintiff officers, of Palo Alto and several of its City police alleging officers committed various constitutional and common law torts when they detained and arrested him for drunkenness. After various claims were public dismissed on legal found that officers had used grounds, jury excessive force but against rejected claims of unlawful arrest and fabrication plaintiff, Both police on numerous We find no reports. parties appeal grounds. error, reversible and affirm the judgment.1

Background According he and two Jim Walker and Bill plaintiff, companions, D’Honau, were a downtown Palo Alto walking along street in the early 29, 1997, hours of March morning when were accosted two they young women in a car on the street. As tried to driving wrong way plaintiff condition, the women not to drive in persuade their defendant Bertrand Milliken, officer, a Palo Alto arrived in his car. police Thinking patrol arrested, women were about to be to walk His plaintiff began away. compan- ions, however, watch, remained behind to so turned and waited for plaintiff them near a Plaintiff and sign. his testified that not companions drunk and did not drunk. appear

Milliken testified that where he plaintiff staggered drunkenly sign, to be He appeared urinating. Plaintiff was approached plaintiff investigate. but Milliken urinating, asked him for identification Plaintiff anyway. this, balked at and told he Milliken had his identification in his truck. left Plaintiff Milliken and his told they were on their home. companions way Milliken conceded that told him were down the they they just walking street a few blocks and that Walker and D’Honau said were with they plaintiff. drunk, Milliken testified that and that soon after their plaintiff appeared 4, 2007, City Schmidlin v. Palo (Dec. H027685) Alto appeal, (nonpub. In related opn.), attorney ground we reverse the trial employ court’s award of fees on the that the court failed to required methodology calculating such an award. Milliken’s, hostile, face close and became his to exchange began, put plaintiff Milliken, to seemed to be him. to started going fight According plaintiff times, him Plain- walk several Milliken ordered to remain. away whereupon this, tiff and his denied Walker testified that though plaintiff companions averted his at one and testified that he back as gaze point plaintiff stepped Milliken close to him. got extremely

At least four and a half minutes after Milliken plaintiff, placed approaching call for In defendant Officer Martin drove to nonurgent backup. response, arrived, When he Milliken told he was under arrest. scene. plaintiff and his the officers warning, according Without plaintiff companions, landing arms and threw him face first to the both grabbed ground, plaintiff’s him, then on of him. Plaintiff testified that Martin top began punching sidewalk, head the hair and it into the his grabbing jamming producing officer, cuts and abrasions on his face. A third defendant ran and Trujillo, up hit on the with a baton. legs plaintiff and D’Honau at the scene

Plaintiff’s Williams companions complained treatment, Baldwin, about and a defendant Carole arrived his police sergeant, to them. her indicated that were about Although they upset speak report that she attributed to them officers’ treatment of testified plaintiff, they make, statements did not and omitted statements did make. they they arrest, After took him to Stanford for an officers plaintiff’s Hospital Plaintiff that officers refused to let him use the assessment of his sаid injuries. time, use the bathroom at this but defendant Milliken told he could plaintiff a urine Plaintiff although bathroom if he would sample. agreed, provide because, testified, he he feared he did not want to a urine provide sample bathroom, officers with it. After he might using tamper presented time, filled with water. When he went to the bathroom a second sample cup and, Milliken defendants and Martin followed him according plaintiff, him. threw him to the floor and elbowed and kneed misdemeanors, a number of

Plaintiff was with subsequently charged the course of the (See During more described below. fully post.) evidence, he alleging criminal made a motion suppress prosecution had lacked to conduct an grounds investigatory Officer Milliken sufficient detention, and that all evidence from that detention should flowing denied, was tried in on January excluded. That motion was and intoxication, identification, arrest, on false assault resisting public (Milliken). The (Martin), jury on a officer officer police battery police and not drunkenness found him of false identification guilty public guilty assault, battery. arrest and resisting but failed to reach a verdict charge a new trial on the false identification Plaintiff moved for successfully announcing based on instructional error and misconduct. After juror the the dismissed them on intention to retry remaining charges, prosecutor eve of trial. 12, 2000,

On December action Officers against plaintiff brought Milliken, Martin, Baldwin, and the Palo Alto Police and Trujillo, Department, of Palo Alto. Defendants a motion for City summary judgment, brought other that the denial of motion arguing among things plaintiff’s suppression arrest, him from his claims for unlawful detention and precluded pursuing and that the statute of limitations barred the claims for excessive force. The court denied the motion. trial,

The matter came on for and after described more fully proceedings below, Milliken, Martin, found that Officers had violated jury Trujillo constitutional excessive force his plaintiff’s rights by using against person. his claims of false arrest and fabrication of jury rejected police reports. The trial court denied defendants’ motion for judgment notwithstanding Defendants, verdict. followed filed of notices plaintiff, timely appeal. I. Appeal Defendants’

A. Sufficiency Evidence Excessive Force of

Defendants assert that the evidence was insufficient support brief, jury’s finding excessive force. At least we so construe their which evidence, alludes in of the but which is passing insufficiency actually devoted almost the facts. This entirely rearguing disregards approach fundamental governing review of factual and the principles appellate findings, burden” those “daunting who principles impose upon appellant challenges (In re of the evidence to Marriage of sufficiency support judgment. 322, Higinbotham (1988) 798].) 203 Cal.App.3d 328-329 Cal.Rptr. [249 “ ‘The rule is well established that a court must that the reviewing presume fact, record contains evidence to and an support every finding appellant who contends that some is not is to set finding particular supported required forth in his brief a summary material evidence that issue. Unless upon done, this is the error deemed assigned is to be waived. It is [Citation.] references, incumbent to state with upon appellants fully, transcript evidence which is claimed to be insufficient the findings.’ support [Citations.]” re Fink (I Marriage (1979) 25 Cal.3d Cal.Rptr. [160 n 881].) 603 P.2d Defendants state that “even the version of events most favorable assuming him him in custody force used arrest and to control while [plaintiff], was not excessive.” But defendants nowhere set forth the constitutionally of their of events most favorable to so although doing part version plaintiff, court, and a to our consideration fundamental to this obligation prerequisite of the evidence to of their “A who challenge. challenges sufficiency party the evidence on that point, must finding support particular summarize why and show how and it is unfavorable, [Cita insufficient. favorable (Roemer Cal.Rptr. Pappas Cal.App.3d [249 tion.]” 743], facts and inferences added.) italics Where a party presents are not findings favorable to his or her “the contention position, (Oliver v.Board substantial evidence be deemed waived.” supported 1].) Cal.Rptr. Trustees 181 Cal.App.3d these defendants’ brief perva In addition to neglecting requirements, record citations.2 It is the alludes to factual matters by sively unaccompanied the record his of to refer us to the of supporting counsel duty portion Witkin, (4th 1997) ed. (9 contentions on Cal. Procedure Appeal, appeal. 624; (1994) 30 Mansell v. Board Administration Cal.App.4th p. 574]; (1998) State 63 Guthrey 545 v. Cal.Rptr.2d [35 of California 27]; (1971) 18 Hyatt see v. People 1108 Cal.App.4th Cal.Rptr.2d [75 brief fails to portions 624 Cal.Rptr. specify Cal.App.3d 156] [where [96 assertions, to factual record is presumed of record supporting appellant’s search a trial “It is not incumbent this court to upon court’s rulings].) support (Erro manner.” character to determine a raised in this record of this point 890]; re (1932) 513 P.2d see In Santa Barbara City Cal.App. Fink, is neither nor Cal.3d Marriage supra, practical [“It behalf’].) for us to comb the record on appropriate appellant’s] [the deficiencies, find defendants’ to challenge Even these we overlooking Defendants assert as “paramount evidence sufficiency unpersuasive. he was ground that when officers threw to the and fact” indisputable plaintiff others,” as “an to himself and and intoxicated that he a danger “so presented indi- intoxicated severely fact” that “the officers faced arresting objective are that this characterization . . . .” But the facts cited for vidual supposed hours, of six and plaintiff had five beers over a plaintiff period observations that he had to Milliken’s Agent be unable “dispute professed alcohol, because these are and a odor of strong red and glassy eyes other than himself.” someone only by observations observable uniquely not this jury, observations was for to be to these weight assigned reported court, value they hardly if were credited at face would and even they intoxicated” or that that was “severely establish beyond peradventure plaintiff of force. he occasion for use presented witness Frank Saunders contended expert and his excessive force example, For “Schmidlin him in handcuffs.” ground place in order to excessive force to take Schmidlin that was officers,

And, an safety posed by such intoxicated by the threat to officer testified “[a]s potentially but severe.” being unpredictable under arrest is placed individual assert, citations, that exhibited without record plaintiff

Defendants similarly with the officers’ attitude toward complying and resistive “uncooperative fact, with consumption commands.” this even coupled plaintiff’s Accepting hours, to find that officers would hardly oblige jury five beers over six him, his top grind were entitled to throw ground, pile plaintiff Worse, sidewalk, defendants rely and beat his with a baton. legs face into tried to on Officer Milliken’s testimony plaintiff “repeatedly paraphrased off in a tense stance eventually walk to avoid away questioning squared blocked,” “denied when the even way acknowledging while defendants, оf the issue tendered entirely.” plaintiff’s For purposes contrary be true because it presumed judgment; denial is supports is all but irrelevant. testimony vein,

Defendants’ brief continues in this alluding arguing evidence, none of which is record citations. almost supposed supported Plaintiff all this out in his brief. Defendants do not meet points responding brief, in their but continue in the same manner. Thus they point reply five or six beers belatedly acknowledge testimony drinking plaintiff’s intoxicated, or over an would not make him feel affect evening excessively talk, his to walk but leave him mellow and ability or would just feeling relaxed; but assert that this evidence “must be they disregarded examining the because of the level of force to effect his arrest constitutionality employed attest to an mental than indications of they state rather alleged objective to intoxication.” On the about his reactions contrary, testimony plaintiff’s alcohol, which the credited at to the extent that it left least jury presumptively “mellow,” him no threat to would an inference that he feeling posed support whatever, the not true. officers and that evidence to any contrary a of other details— evidentiary Plaintiff’s brief includes nine-page catalog backed to the the verdict but absent citations fully record—supporting case is defendant’s This confirms presentation. catalog present the that failure to a full and candidate for of rule application present prime fair of the evidence the effects a summary supporting judgment “waive[r]” Trustees, (Oliver the evidence. v. Board challenge any sufficiency event, it does on 832.) In supra, Cal.App.3d depending inferences, to facts and defendant’s is insufficient disputed presentation impeach judgment. Immunity

B. Qualified erred in to the effect that the trial court Defendants raise several arguments challenge As with the immunity. not their defense sustaining qualified force, so fundamen- their is presentation evidence of excessive appellate law. delve into the substantive flawed that it is tally unnecessary applicable Their first is that the trial court should not let the case argument go have verdict, or should have jury, granted judgment notwithstanding court) (or because “there was no evidence which the the trial could jury upon that an conclude reasonable officer could not believe objectively absolutely that the ‘take-down’ was a and effective reasonably necessary approach intoxicated, an technique handcuffing uncooperative, potentially individual.” That formulation rests on factual that defend- dangerous premises ants have failed to establish for of this and that to be purposes appeal, appear find, i.e., did to what the was entitled to that contrary jury plaintiff appear intoxicated, sufficiently dangerous uncooperative, potentially permit down, reasonable officer to believe it was to knock him reasonably necessary strike, and club him. Once offered in defiance again defendants’ argument of the substantial evidence rule and the of correctness. appellate presumption

Defendants also assert that trial court erred in that instructing jury time “it was established at the clearly law arrest excessive plaintiff’s force could not be used to effect an the claimed error arrest.” nature of eludes us. The not whether an ensuing addresses argument question, officer have force at the might it was to use excessive thought permissible arrest, but whether it was established law thаt time of plaintiff’s force used was excessive. the officers differ two Obviously questions went, As far as it instruction was a correct statement markedly. challenged of law. If defendants have a it must be that the court committed grievance, on what constituted excessive force under estab- some error in instructing error, lished law. shifting Defendants make no effort such identify instead to an failed to his burden of argument showing carry established law at the time the conduct attributed to defendant prohibited effect, officers. In the we absence of a to this proper showing presume that the evidence determination. judgment contrary support supported Further, controverted, unsubstantiated, rests on and argument again assertions, that factual was presumptively rejected e.g., plaintiff “physically to handcuffing”; resistive resistance suspect” engaged “vigorous physical than, that an officer his forearm head rather against pressed plaintiff’s testified, hair; his and that officers’ attack on plaintiff plaintiff pulling served “the of another falsified legitimate hospital police purpose preventing urine which would medical clearance.”3 A thus delay challenge sample to decide. It controverted factual no issue by legal poisoned premises presents is on its face devoid of merit. record According plaintiff, supports who unlike defendants his factual assertions with

citations, jury getting sample part there was evidence before the that a urine was not duties; clearance; under no sample plaintiff that a was not needed for medical was officers’ justification, officers obligation provide sample; despite complete and that absence of floor; it; and kneed him out of the bathroom as he was about to use threw him on “pulled being and elbowed him as he was handcuffed.”

C. Statute Limitations

1. Background by was barred excessive force claim Defendants contend that plaintiff’s trial, but during did not raise this issue of limitations. Defendants statute and after trial again for summary judgment, it before trial motion asserted court rejected the verdict. The trial notwithstanding motion for judgment have failed to their burden of carry of those Defendants on both occasions. that these were incorrect. rulings demonstrating use of excessive force against plaintiff

It is the officers’ undisputed 29, date, and was on that was on March Plaintiff arrested occurred 1997. bail, 30, on A criminal on March 1997. custody, released apparently 18, 1997, was filed on with intoxica- charging public complaint April Code, 647, in the (Pen. (f)) discharge subd. and an officer resisting tion § Code, 148, (a)). later amended to (Pen. his duties subd. The was complaint § add on a officer in the of his charges including battery peace performance Code, Code, 594, (Pen. (b)), (Pen. subd. duties vandalism §§ § Code, (Pen. (a), (b)(4)), and a false name officer subds. giving police 148.9). matter in an January resulting acquittal went to trial in Martin, on Officer a conviction for false intoxication assault public identification, and a on Officer resisting battery against arrest hung jury Milliken. Plaintiff’s motion for a new trial on the false identification charge on the that the had been misinstructed. granted ground jury prejudicially resisting A new trial was scheduled for December on the arrest, 13, 1999, however, and false On December battery, identification. dismissed the remaining charges. prosecutor

Plaintiff filed this on December action 2000.

2. Procedural Framework address we must Before merits of the limitations issue reaching relies, the only question on which dissent pervasively premise, court defendants’ denying before us is whether the trial erred in properly dissent, defendants were summary Aсcording motion for adjudication. asserting motion summary adjudication “entitled prevail [their] cause of excessive force limitations barred Schmidlin’s federal statute of 780-781.) (Dis. . . . .” at opn., post, pp. action aside, of it is precluded to this view our objections adoption

Other potential have (1) expressly obstacles: defendants insurmountable seemingly two by error, made a motion to never they disclaimed such claim of any the “federal excessive force adjudicate cause of action.” did move for They as made was insufficient on its but the motion summary adjudication, to face the order the dissent justify says trial court should have made. Accord- the dissent ingly, misses mark insofar as it concentrates on error supposed in the denial of summary judgment.

Defendants have disclaimed explicitly any to reversal of attempt predicate on error in the judgment trial court’s on their present ruling motion for True, asserted, in summary judgment. their brief without opening they citation of that “an erroneous reason authority, formed the basis for the denial of . . .” But pretrial summary judgment. did not claim a to they right basis; rather, reversal on that focused on the denial they court’s of judgment the verdict. notwithstanding time of their brief By this focus was reply as, exclusive. there defined the They “Did the governing trial court question err in denying motion judgment notwithstanding verdict Defendants’] for on the issue of the (Italics added.) statute of limitations bar?” went on They disclaim contention that explicitly reversible error could be predicated on summary judgment ruling, “Schmidlin’s Combined stating, Brief mischaracterizes on the statute of limitation an appeal issue as Defendants’] from the denial of appeal summary Defendants judgment. [Record citation.] are from the denial of JNOV and from the appealing judgment, presenting the contention that the trial erred appeal and in judge denying JNOV defendants Milliken entering judgment against and Martin on the application of the statute of limitations facts undisputed judicially noticeable in the record from the summary judgment reiterated this state- proceedings.” They ment almost verbatim in supplemental briefing.

We would not hesitate to relieve defendants from an conces- improvident circumstances, sion in but have not proper they such relief either requested Instead expressly by have implication. they consistently sought adjudi- cation on the substantive merits of the limitations defense. There is no simply dissent’s efforts to constrain the justification of these issues analysis within the procedural straitjacket summary judgment procedure.4 argues they The dissent that defendants “implicitly” pursue point appear to have 784-785, below, post, (Dis. 5.) disclaimed. opn., pp. at fn. As discussed further the dissent’s impeach willingness judgment by resuscitating under review a contention after it was proponent particularly light willingness discarded its natural seems puzzling in of its to find points judgment procedurally raised have been forfeited. defense Indeed, general procedural rigor espoused by curiously as a matter the the dissent seems appears plain governing selective. In some cases it to rest on a misapplication of the law. Thus imply the dissent that plaintiff showing, seems is stuck with not the factual but legal arguments opposition summary judgment he made in to defendants’ motion. The dissent “ ” implicitly ‘manifestly unjust’ require finds that it would be defendants to meet new post, (dis. quoting Ernst v. Searle arguments opn., 218 Cal. 240-241 715]) though apparently entirely judgment, P.2d it is considered fair to reverse the without constrained,

Furthermore, an evenhanded the were so analysis even if that the would the conclusion compеl of law summary judgment application the dissent Again, court did err in defendant’s motion. denying trial not . . for . “summary adjudication defendants’ motion as one characterizes excessive that the of barred Schmidlin’s statute limitations asserting federal 781, post, cause Later added.) the (Dis. at italics action.” opn., p. of force of the “the City’s summary adjudication dissent refers to motion again post, 783.) But (Dis. of at opn., p. federal excessive force cause action.” to federal causes brought plaintiff’s defendants no such motion. As relevant Seventh, action, . . . . . on the . of moved for they “summary adjudication for excessive force Ninth .. . of Action .. ..” Plaintiffs claim Causes Eighth, cause seventh of in the of his the designated portion complaint appeared action, The of the allegation as did most of his other federal claims. central detained, arrested, seventh cause action was “Defendants unlawfully and force against used unreasonable excessive imprisoned plaintiff; him; their and in court so testified in against falsely police reports [szc] [and] he that he would and convicted of crimes did not commit.”5 charged its defendants By to attack lost choosing allegation entirety, chance to order the have been made. A secure the dissent insists should any event, any the plaintiff, arguments expressly notice to based on defendants have abandoned. In dissent, (see by commonly “theory of trial” Coast rule invoked known as North Business 22, Cal.Rptr.2d Nielsen Co. Cal.App.4th Park v. Construction 28-29 [21 104] dissent, ‘theory ”]), trial’ support of the does not conclusion. In cases cited its [“ reversal, judgment preclude arguments was invoked to not to new in its rule shield from 28-30; (Id. support. pp. Panopulos at 47 Cal.2d 340-341 P.2d Maderis Searle, 738]; 240-241.) pp. theory offered to supra, Ernst v. 218 Cal. Where new is affirm here, judgment, manifestly theory as it of trial will often be “the doctrine Procedure, (9 Witkin, 457.) disregarded.” supra, p. Appeal, Cal. § Moreover, discretionary reviewing application always doctrine is with court. Witkin, Procedure, (9 457.) supra, is that Appeal, p. underlying Cal. rationale it is § evidence, require party arguments, especially unfair to to refute new opposing new given weighs not to the trial court. here this factor adequate opportunity it was meet in But heavily against neglected theory opposition his to plaintiff, present no more who new defendants, summary judgment, against dropped the entire limitations defense than it does who trial, to a present until after when it was too late for either new evidence finder side Moreover, heavily post, way litigated the matter below was parties fact. discussed departure abrogated. justifies federal that has since This also colored case law been Witkin, 458.) (9 supra, to us that the “theory Appeal, of trial” rule. It seems party; certainly either it does favor defendants. The balance of fairness does not favor judicial efficiency. tenable is therefore Since alternative dispositive consideration trial, strongly large is to matter and set it at for a new this factor favors affirmance reverse the theory on plaintiff’s new the merits. consideration action, testify eighth conspired alleged, Plaintiff also in the cause of defendants liberty, the ninth falsely deprive about these in order to of his and in cause matters failed, liberty they among things, plaintiff’s “deprivation of after prevent action that other anything unnecessary allegations these add arrest.” We find it to consider whether his they Certainly detract from them. arguments against sustaining a limitations defense. do not motion summary for tenders those adjudication issues or causes of only motion, action in the notice of as to specified may only granted matters thus The movant must in the notice of specified. specifically “state[] verbatim, motion . and . . in the repeatQ, statement of separate undisputed facts,” defense, action, material “the cause of affirmative claims for specific damages, or issues of as to which duty” summary adjudication sought. (Cal. Court, Court, 342(b); Rules of former rule see Cal. now Rules of rule 3.1350(b).) The motion must be denied if the movant fails to establish an entitlement to of the summary adjudication matters thus the court specified; claims, cannot summarily adjudicate other issues or even to if a basis do so Court (See from the Superior appears papers. Gonzales 1542, 1546 a Cal.App.3d Cal.Rptr. adjudication ‘If desires party 106] [“ subissues, of or that particular issues must make its clear in party intentions the motion. . . .’ There is a sound for . reason this rule: ‘. . the [Citation.] have to opposing decided raise one triable of fact party issue in only motion, order to defeat the without to concede the issues. intending other It would be to unfair a grant summary order adjudication unless opposing was on party notice an issue-by-issue be ordered if adjudication might ”].) was denied’ summary judgment

Here defendants’ statement with separate reflects no attempt comply That alone requirement. the trial erred precludes court holding tender, the motion. Nor notice denying was the of motion sufficient as a distinct for subject summary adjudication, federal claim exces- plaintiff’s sive force. It for an adjudication of entire cause of prayed seventh action. Since that cause of action included other several alleged deprivations rights, including constitutional false statements in and in police reports trial, at testimony criminal motion as framed plaintiff’s defendants no entitled them to relief plaintiff’s excessive force claim unless respecting all showed they as matter of law claims asserted in seventh cause of action were unsustainable. Defendants were either entitled action, entire seventh cause on the summary no relief at adjudication or to all. Defendants’ fell short motion well an entitlement demonstrating on all federal claims. It judgment plaintiff’s essentially least one ignored them, namely, claim based on false statements reports. police defense, defense, Defendants did not establish the limitations as to that claim. Their statement of facts set out no facts separate governing concerning the date on which that claim would have accrued or laying otherwise factual foundation for it barred. Their memorandum holding supporting ignored the claim It altogether. somewhat similar acknowledged plaintiff’s statements in court claim “that gave officers police testimony,” false it under the seeking rug by that more than a sweep noting year passed between the of that But testimony of suit. giving plaintiff’s filing they civil rights of a federal allegation the immediately adjacent

wholly ignored police reports. violation based false upon wholly analysis a limitations claim obviously required

The false reports thing, For one force claim. to the excessive from the one applicable distinct arrest, excessive when the arisen on the night plaintiff’s could not have the false could exist until on false statements did. No claim based force claim not accrue—the would And such a claim presumably statements were made. or had reаson knew not to run—until begin plaintiff limitations would period ” “ (Lavellee v. Listi action.’ is the basis of the to know ‘of the which injury know of 1131.) any injuries Plaintiff could not 1980) F.2d (5th Cir. else, until or anywhere the false statements in police reports, resulting made. had been had reason to know that those statements he knew or issues, does either or factually legally, failure to address these Defendants’s were they the record affirmatively suggests not inadvertent. Rather appear entitlement establishing their burden carry in position evi- relevant false claim. The only on the statements summary adjudication counsel, who by the trial court was the declaration plaintiff’s dence then before he began request- the dissent—that by stated—in a partially quoted paragraph “[wjithin Mr. Schmidlin’s a few weeks after ing copies police reports filed arrest,” Attorney to obtain them “after District but was able (or his is that of this averment meaning charge[s].” apparent false could not have known of counsel) any did not and see police reports, them, charges— the district filed attorney statements in until some time after It is criminal filed on 1997. April a reference to the complaint presumably 945.3), (section Code section 945.3 that under Government beyond dispute filing was disabled from in the following discussed length parts, plaintiff tolled, suit, no later than commencing limitations was and the statute of conduct of the peace extended to claim “based any upon date. This effect an act including is charged, to the offense for which the accused officer relating 945.3, (§ italics the offense . . . .” reporting investigating or omission on before the court from the added.) papers It thus affirmatively appears until did not accrue the claim for false police reports summary judgment abated, and the limitations period to sue was right sometime after plaintiff’s tolled, not show otherwise—or defendants did Certainly section by 945.3. do so. attempt even from the distinct ground offer other basis—any

Nor did defendants from their claim. Aside of the false reports limitations defense—to dispose limitations, in their arguments their only of the statute blanket assertion on the all federal claims were that predicated moving papers unlawfulness of claim based on arrest were barred collateral by estoppel; plaintiffs liabil- that “supervisory at trial” was barred absolute immunity; “perjury Baldwin-, that liability Sergeant could not ity” imposed upon properly arrest was plaintiff’s barred by and that no evidence qualified immunity; supported imposition “entity liability” city upon (Italics added.) Department.

Indeed, defendants did not acknowledge false claims at plaintiff’s reports memorandum, all until their which was of course too reply late to make the of a showing on required moving party summary Even there judgment. they obfuscation, relied entirely “Schmidlin’s federal claims writing, for false | testimony and in court police reports [Complaint conspiracy 67] give false testimony must have accrued at [Complaint or before the 71] 1999 trial when all the January officers testified. By waiting almost two years 12, 2000, suit, until December to file these claims are barred [szc] statute one-year of limitations.” This deals with the argument false report claim only by it with the false conflating claim.6 More testimony tellingly, the effect ignores of section 945.3. Plaintiff’s claim for false well reports may defendants, have accrued the date long identified by as early perhaps before as when he first saw the But no matter reports. when cause of action arose accrued, section tolled ‍​‌​‌‌‌‌​‌​‌​‌​‌‌​​‌​‌‌​​‌​‌​​‌‌‌​​‌‌‌‌‌​‌​‌​​‌‌‌‍945.3 of the running limitations for period claim based on an “act or omission in . . . the offense . . . reporting .” (§ 945.3.) claim, It therefore to the false squarely applied defeated reports any limitations defense with to that claim.7 respect

Because defendants offered no basis for of the false disposing reports claim, their motion failed on its face to state a basis for adjudicating seventh cause of action. Given defendants’ failure to move for a effectively motion, narrower the court did not ruling, err in their denying no matter what the merits been may have of the limitations with to other argument respect claims. The dissent’s concentration on that is therefore ruling misplaced.

3. Analytical Framework The soundness of a statute of limitations defense on four depends (1) variables: What is the governing limitations On what date did period? accrue, the cause of action such that the limitations to run? period began (3) How much time between accrual and the elapsed filing complaint? time, (4) For what if was the of the statute period(s) any, running 6 Commendably, opened defendants reply relevant section of their memorandum cautioning the trial court of plaintiff’s exceptionally timeliness claims was “an complex question requires among which careful differentiation the elements of his federal entitlement, They proceeded disregard claims.” then this admonition as it affected their own same, summary adjudication. or lack of 7 theoretically It was open alleged to defendants to show that some or all of the reports false sufficiently were remaining unrelated to the after the criminal trial that the verdict tolling period that trial ended the as to those claims. It suffices here to observe that defendants attempted showing. never such a

747 less filing, any period time from accrual (tolled)? If the elapsed suspended before the the statute ran then the limitations period, exceeds tolling, action is barred. filed and the complaint limitations the governing here is not in

The first variable dispute; States Code section 1983 action under 42 United one A cause of is year. period or general personal the forum state’s “residual (section 1983), is subject 235, U.S. 236 (1989) 488 (Owens limitations.” v. Okure statute of injury 594, 573]; U.S. 384 v. Kato 549 L.Ed.2d S.Ct. see Wallace 109 [102 1997, 1091, 1094, when the 973, (Wallace).) In S.Ct. L.Ed.2d 127 1098] occurred, injury the limitations period personal events this suit underlying 340, Proc., (3); subd. see Silva (Code Civ. former actions was one year. § 608, extended to 610.) The was later (9th 1999) Cir. F.3d period Crain 169 448, 2, Proc., 335.1; 3), but ch. (Code Civ. Stats. §§ two years to him. not contend that the extended period applies does was filed on December Nor do the parties dispute complaint action, and 1,354 the cause of the events rise to giving some after days events.8 The of those anniversary parties’ days beyond one-year excessive force claim around the of when plaintiff’s centers dispute questions accrued, tolled. The first question and the extent to which the statute was 1095]; (Wallace, U.S. at S.Ct. p. one of federal law. supra, p._[127 1998) F.3d (9th Park Cir. City Huntington Cabrera v. (Wallace, U.S. at (Cabrera).) supra, p._ The second is one of state law. 1098].) S.Ct. p. [127 matter, court we concluded—as the trial

In our initial of this analysis cause of did—that federal law the accrual plaintiff’s delayed apparently of the charges arrest until the final disposition action from the time of his 374, Cabrera, F.3d which rested on 159 supra, him. That conclusion against 477, L.Ed.2d (1994) 512 U.S. 486-487 Heck v. interpreted Humphrey [129 claim 383, a section 1983 (Heck) 114 S.Ct. to mean that whenever 2364] related invalidate a conviction on of which would allegations rests proof does not acсrue until final disposition criminal the claim charges, furnish a defense the officers’ use of excessive force would Since charges. Jury Council of Cal. Crim. (see Judicial charges several of against plaintiff not lawfully officer is (2007-2008) CALCRIM No. 2652 peace Instns. [“A unreasonable or he or she is . . . using his or her duties if performing 347, duties”]; (1969) 70 Cal.2d her v. Curtis People excessive force in his or 713, in 33], People on another abrogated point 450 P.2d 354 Cal.Rptr. [74 729, 1179, 1159]); 800 P.2d 1222 Cal.Rptr. 51 Cal.3d Gonzalez scmtiny leap under includes misleading period because the potentially These numbers are 29, calculating relevant always be accounted for when day, February This factor must 2000. years. defined in terms of days, periods most limitation are by number of since periods force did not accrue we cause of action for excessive agreed plaintiff’s However, Cabrera’s under Cabrera until those were dismissed. charges Wallace, of Heck was where the court held in essence reading repudiated that Heck’s claim in the face effect is to bar the section 1983 filing conviction, of with the existing of which is validity incompatible supra, (Wallace, claim rests. U.S. at on which the section 1983 allegations Thus, entered, 1098].) until a conviction is the cause of S.Ct. at p._[127 Wallace, therefore, cause of action action accrues Under normally. plaintiff’s force, and the rule of Heck never accrued at the time of the use of excessive to which came into since was never convicted of offense any play, constitute a defense. the officers’ use of excessive force would rule, which is on the Heck-Cabrera Since the had focused largely parties issue, now we asked them to submit briefs on abrogated, supplemental claims also raised below but less briefed on whether fully plaintiff’s appeal, tolled were under That statute of claims filing section 945.3. prohibits limitations, so as related long such as and tolls statute plaintiff’s, (§ 945.3.) . It is criminal are before a . . court.”9 charges undisputed “pending were before a court for these purposes April pending filed, criminal when a to December when complaint days, dismissed the This accounted for 969 remaining charges. prosecutor essence, is whether some 20 In leaving days dispute. question between the use of excessive force days statute was running during substantial running and the of the criminal If it was filing complaint. time, statute of one-year of this claim is barred by part plaintiff’s limitations. occurred, provided, “No underlying As in effect when the events former section 945.3 indictment, information, accusatory pleading charging a charged by complaint, or other

person damages against a officer or the may bring money peace criminal offense a civil action for or relating to the entity upon peace officer based conduct of the officer public employing peace including investigating an act omission in or charged, for which the accused is offense accused, charges against the arresting detaining or the while the reporting the offense or justice, superior court. pending municipal, accused are before a or filing prosecuting and these actions shall be tolled “Any applicable statute of limitations for justice, municipal, superior or court. during charges pending that the are before period the section, justice, municipal, superior or charges pending before a purposes “For the of this Chapter 2.5 proceedings pursuant or criminal diverted appeals court do not include 1000.6), 1000), (commencing Chapter 2.7 (commencing Chapter 2.6 with Section with Section 1001.20), 1001), (commencing Chapter with Section or (commencing Chapter with Section 2.8 1001.50) 2 of the Penal Code. (commencing with Section of Title 6 of Part 2.9 entity, filing public of a claim with the board of a “Nothing prohibit in this section shall required presented a claim is to be not extend the time within which and this section shall 1983, 1, 945.3; 272, 821-822.) (Former pp. Stats. ch. pursuant § § to Section 911.2.” municipal justice the elimination of subsequently was amended to reflect The statute 1998, 931, 2002, 784, 121; 175.) (Stats. ch. § ch. Stats. courts.

749 here, two of section 945.3 presents questions: As pertinent application statute, “charged by at what is a (1) person For purposes point indictment, information, accusatory charging or other complaint, pleading the accused” (2) when are “the charges against criminal offense”? that a before a . . . court”? Plaintiff contends said to be “pending properly his which served on him after inferentially shortly notice to was appear, offense,” arrest, which an a criminal charging “accusatory pleading which were before charges commenced period during “pending” Defendants contend that the notice to was not an court. municipal appear before and that in event no were “accusatory “pending pleading” until the filed a attorney a court” district criminal complaint. on the of the meaning statute thus turns application a criminal offense” and . . . “charges

phrases “accusatory pleading charging before a . . . court.” In such a we must ascertain answering pending question, (In re intent of the lawmakers so as to effectuate the of the law. purpose 813, 373, Harris (1993) 391].) 5 Cal.4th 844 855 P.2d To Cal.Rptr.2d [21 intent, determine the we first examine the words of the statute in Legislature’s context, them if their commonsense giving meaning. possible plain, everyday, If we find no or we meant ambiguity uncertainty, Legislature presume said, what it (See further into intent rendering legislative unnecessary. inquiry 268, 457, Day City Fontana (2001) 25 Cal.4th Cal.Rptr.2d [105 If, hand, 1196].) 19 P.3d on the other is unclear or statutory language i.e., it than ambiguous, more one reasonable we permits interpretation, intent, consider various extrinsic aids to us ascertain the help Legislature’s including legislative settled rules of construc history, public policy, statutory tion, and an examination of the evils to be remedied and the legislative (Ibid.; v. Garrett scheme People statute encompassing question. 1417, circumstances, 643].) In such we Cal.App.4th Cal.Rptr.2d [112

select the most with the intent of closely interpretation comports apparent with a view toward rather than Legislature, promoting, defeating, lead general statute and an would purpose avoiding interpretation v. Walker to absurd (People 29 Cal.4th consequences. [128 150].) We effect to word in 59 P.3d also Cal.Rptr.2d attempt give every a statute and statutory avoid constructions render terms superfluous (People v. (1986) 41 Cal.3d meaningless. Cal.Rptr. Craft 585].) 715 P.2d “Accusatory Pleading” 4.

We must first consider whether a notice to constitutes appear a criminal offense” for our Ordi “accusatory charging pleading purposes. was, misdemeanor, a is released a arrested for as narily, person upon Code, (Pen. a in court . . . .” served with “written notice to being appear 750 notice, (section 853.6), (a).) known a citation 853.6 subd. Such a also

§ 45, 49, (1992) v. fn. 1 (e.g., Gates Court 9 Municipal Cal.App.4th [11 439]; (1989) v. 214 1383 Cal.Rptr.2d People Domagalski Cal.App.3d 249]), set “the name and address of the must forth Cal.Rptr. person [263 when, which he and the time [charged], charged, offense is] [with where, 853.6, (§ (a).) in Such an shall court.” subd. place appеar [he] instrument is an as that is “accusatory generally undoubtedly pleading” phrase (See (Cont.Ed.Bar understood. Cal. Criminal Law: Procedure and Practice 6.5, 2007) four courts kinds of Arraignment, p. employ § [“California citation, information, indictment.”].) accusatory pleadings: complaint, 945.3, Moreover it must be as such for of section because accepted purposes indictment, otherwise the reference to a informa- statutory charged by “person tion, or other a criminal accusatory pleading charging complaint, offense” would be from the mentioned in the superfluous. Apart pleadings specifically statute, (citation) a notice to to be other appear appears only “accusatory (See criminal Criminal a offense” known our law. Cal. pleading charging Practice, 6.5, 142.) Law: Procedure and Thus if the supra, Arraignment, § “other does not refer to a notice to it phrase accusatory pleading” appear, above, refers to and the acted it. As noted nothing, Legislature idly using the law when a Legislature us not to useless acts enjoins impute reasonable alternative appears. (c) (section The dissent alludes to Penal Code section subdivision “ ” indictment,

691(c)), which to “include an an defines ‘accusatory pleading’ information, accusation, an and a This echoes section list 945.3 complaint.” latter contains no reference to an “accusation.” Could this be except the “other not. For one to which alludes? We think accusatory pleading” intended, had that been it would have saved ink thing, what Legislature 691(c), the definition from section or better cross- by merely copying yet, Moreover, 691(c), it. as used in section “accusation” refers to the referencing instrument issued in a under Government Code grand jury proceeding (See section 3060 to remove a for wilful or misconduct. public corrupt officer Code, 949.) Pen. that statute is considered a an action under Although § “ ” Code, (Evid. of evidentiary proceeding’ purposes privileges ‘[c]riminal 903), and characterized as a for other is sometimes “criminal proceeding” v. Hale (e.g., People Cal.App.2d Cal.Rptr. purposes [42 criminal case number on it is not viewed as [assigning appeal]), 533] (Bradley Lacy Cal.App.4th criminal substance. prosecution of an under section accusation Cal.Rptr.2d 919] [“[P]rosecution . 3060 et is not a criminal . . proceeding. seq. [Citations.] [Citation.] [It] [citation], than to a more to civil abatement of a nuisance closely analogous Moreover, in all section is not triggered criminal 945.3 prosecution”].) “accusatory charging “criminal but pleading proceedings” office Penal 15 describes removal from criminal . . . .” Code section offense

751 a which will characterization of predicate “punishmentQ” support offense, offense,” an a but to constitute such conduct as “crime or public of a . . .” forbidding commanding law it. conduct must occur “in violation (Italics added.) from office for “willful or miscon- corrupt

A statute removal authorizing Code, forbid or (Gov. 3060) duct in office” cannot itself be understood to § misconduct removal otherwise be command act. Nor can such any justifying offense,” viewed as a “criminal unless of course it offends independently v. Court (See (Hanson) (1980) 110 People Superior statute. penal Cal.App.3d 396, to removal not 400-401 Cal.Rptr. subjected proceeding 21] [official [168 defendant so as to claim entitle- situated similarly felony equal protection Hale, v. 232 preliminary hearing]; People ment to 119 supra, Cal.App.2d p. crime, is “not to convict an office-holder of but designed merely [statute office”; . . . remove him from his removal be warranted “conduct official”]; below standard of of a decency rightfully expected public 750, v. Tice (1956) People 144 754 P.2d Cal.App.2d [301 588] [marshal account; with “the ‘mis- charged overdrawing bank repeatedly public phrase malfeasance, conduct in office’ is broad to include wilful enough v. Court office”]; (1905) Coffey Superior misfeasance or nonfeasance in 147 759, [same]; Harby Cal. P. People 529 v. 51 Cal.App.2d [82 75] 767 P.2d against is misconduct required charged [125 874] [“It In the Matter crime.”]; Burleigh official should constitute a necessarily (1904) 145 Cal. P. misconduct need not charged [78 242] [“the crime, include an act and if it does necessarily which would itself constitute include such be a to a crime on the accusation would not bar judgment Court, crime”]; Coffey Superior for such but see subsequent prosecution supra, 147 Cal. at . . . constitutes at common law charge both [“The offense,—a and under the of the Penal Code a misdemeanor provisions public office,—and In re Curtis nature.”]; ... are of a criminal proceedings Cal. P. office “is ... public 793] [misconduct offense,” and action “is a criminal in the nature of an impeach- proceeding ment”].) Given this context we doubt that the had such Legislature proceed- in mind when it formulated a rule for lawsuits “based ings tolling upon the accused is conduct of officer to the offense for which peace relating [a] (§ 945.3.) charged____”

Furthermore, a notice to in many Penal Code makes expressly appear, cases, if not most of a which misdemeanor equivalent complaint, Code, (c).) (See Pen. subd. an accusatory pleading. unquestionably notice, has such a arresting The code that once officer provides prepared 853.6, (e).) (§ he must file it “as soon as subd. If the prosecuting practicable.” directed, the magistrate. has so the officer must file the notice with attorney 853.6, it, relevant (§ (e)(2).) subd. Otherwise he must file with along police (Id., (e)(3).) that case the statute gives with the subd. In reports, prosecutor. from the date to file the notice to or a appear of arrest prosecutor days 853.6, (§ (e).) with the subd. If he elects not to court. complaint formal (Ibid.) he is to send the arrestee notice to that effect. proceed, required he can also let the citation in which case further “any However simply lapse, an shall be a new and citation or arrest prosecution preceded by separate (Ibid.) warrant.” (notice the code declares that the citation if filed with

Critically, appear), either the officer or the “in lieu of a magistrate by prosecutor, operates verified and “shall constitute a to which the defendant complaint complaint” ” Code, (Pen. (section or ‘nolo contendere.’ 853.9 may ‘guilty’ plead § Practice, 853.9), (a); subd. see Cal. Criminal Law: Procedure and supra, 6.6, citation].) on The must Arraignment, p. [arraignment prosecutor § bail, file a formal if the defendant fails to fails to or post complaint appear, contest, but that be waived in may other than or no pleads guilty requirement 853.9, Moreover, situations, (§ (a)). subd. even in the stated if the writing Council, notice to is on a form the Judicial appear prepared approved which the “when filed with the shall constitute a magistrate complaint [it] (Id., (b).) The defendant then defendant enter . . . .” subd. may a[ny] plea (Ibid.) on a formal if the notice is unverified. insist may complaint only cases, has discretion to file a formаl in all whether or prosecutor complaint Practice, (See to do so. Cal. Criminal Law: Procedure and supra, required 143; cases, however, 6.7, 853.6, (e).) In cf. subd. Arraignment, p. many § so, he elect and the will then be the only not to do notice to appear ever accusatory pleading promulgated. an accusatory

These make it clear that a notice to is provisions appear one or defeasance though subject pleading, supersession complaint, inaction.10 The dissent through acknowledges express prosecutorial conditional) between a notice to statutory (though equation appear but it without as criminal characterizes complaint, explanation operating (Dis. 792.) The also under “limited circumstances.” at dissent post, p. opn., misdemeanor initiating significance “complaint” emphasizes that a notice to is a but of course this misses the point appear prosecutions, above, filed under the circumstances set forth i.e. if it is with “complaint” Cabrera, supra, argument contrary page F.3d at Defendants’ relies on [njotice they [a]ppear does not constitute an proposition which cite for “[a] decision, accusatory reading under This a curious of that where the pleading section 945.3.” is did acknowledged disapproval appear without its earlier statement that “a notice to court (Id. 5, citing Torres ‘accusatory pleading’ an under section fn. constitute 945.3.” (Torres), added.) City (9th 1997) Santa Ana italics In both cases Cir. 108 F.3d 226-227 “accusatory hinged question pleading,” not of what constitutes an but the outcome (§ 945.3.) question whether a “pending when criminal are before a . . . court.” On 945.3, accusatory pleading purposes of section our conclusion appear notice to harmony appears complete to be in with them. 853.9, (§ (a)), and the defendant to it if it is magistrate subd. pleads verified, unverified,

filed on an form and or if the defendant does approved 853.9, (§ not insist on a formal (b)). subd. complaint We are satisfied that a notice to is an “accusatory appear pleading” term is used section 945.3.

5. Charges a Court” “Pending Before The more difficult at is what or for what question point, charges period, embodied in a notice to are before a . . . court” for appear “pending purposes of section 945.3.11 We must first consider whether has a phrase plain, and unambiguous, usual in ordinary meaning as such a context. applied it does not. We Plainly have elsewhere had occasion to what in consider steps the criminal of this state procedure constitute the initiation of criminal for attachment proceedings of the Sixth Amendment purposes right v. (People Viray (2005) counsel. 693].) 134 1186 Cal.App.4th Cal.Rptr.3d [36 We there that such recognized questions may produce markedly varying answers id. at on the context in depending (See 1199.) which arise. they p. are not They context driven but abstract and esoteric. All inherently obvious, these qualities contribute to an and To inescapable, ambiguity. one adopt specific meaning such terms on the that it is premise “plain” would be to decide the case by rather than reasoned arbitrary proclamation, adjudication. Court Supreme acknowledged similar in the “diffi- point discussing

culty” experienced Legislature “drafting workable definition” of the date on which the to a statutory right trial attaches misde- speedy (In re Smiley 579, meanor cases. 66 Cal.2d 628 Cal.Rptr. [58 179].) 427 P.2d One version of early the statute had started the clock running “ when ‘the defendant within the is arrested and brought jurisdictiоn of ” (Ibid., court.’ Code, (3), added.) Pen. former quoting subd. italics formulation,” court, “That because its wrote the “proved unsatisfactory vagueness, rise to a giving variety of of its mean- appellate interpretations (In re Smiley, supra, ing.” added.) 66 Cal.2d at italics The court cited p. in which the concluded that where a example majority defendant filed, and arrested then a attached complaint right filing upon (Ibid., Brewer Court Municipal complaint. citing 193 Cal.App.2d 11 statute, “reading]” language The dissent accuses us of “out” of the and on that basis post, disregards (Dis. 793.) following altogether. opn., p. obviously discussion at We take into the statute issue with this reading language characterization. We believe we are giving something unwary it effect as more than a trap police for the victim of misconduct. We have started from the presumption Legislature legitimate objective that the had a in mind when 945.3, adopted section and we have objective. undertaken to effectuate that 391].) A that the concurring justice Cal.Rptr. opined period commenced (See when the defendant underwent arrest and bail. posted Brewer, Vallee, supra, (cone. J.).) P. p. opn. Acting “within

If the of the court” is jurisdiction vague, phrase phrase otherwise, before a court” is no asserting less so. Defendants insist “pending is because means unambiguous” begun phrase “plain “pending decision,” but not or cannot be yet completed awaiting charge pending “filed,” until it is because to that “there is to decide and prior point nothing no to await on that We charge.” reject virtually every question component is not intrinsi of this Most the word argument. obviously, premise “pending” begun but the reverse. It does not mean cally unambiguous, necessarily quite imminent, i.e., but it can also mean inchoate or about unfinished', begin 1999) (Merriam-Webster’s (10th come into Dict. ed. being. Collegiate p. decided: in continuance 2: American yet being imminent, [“1: impending”]; (3d 1993) effect].) Dict. ed. same Indeed the Heritage College [to that term used to describe criminal “pending” commonly means, filed but have not been formalized arrest.12 even an by any In our view the in the statute is not the word but key language “pending” the “before a . . . court.” To of as before a phrase charges “pending speak court” that a their is not only about implies process bring adjudication “imminent” or but The critical which “impending,” underway. question, address, defendants is what concrete are neglect entirely required steps court” for of the statute. The “before place charges purposes quoted [the] is both abstract and is phrase figurative; resulting ambiguity compounded the intricacies of California law with of by stages respect preliminary misdemeanor prosecutions. above, itself to by

As noted a notice to sufficient appear may fully place If the is filed with the before court for notice charges adjudication. are, moment, of that it is in law a and the magistrate, complaint, charges (See 853.9.) court” in before sense. “pending every Application [the] § uncertain, however, on remains where a citation is served quoted phrase but filed with the who elect to file it with the may accused prosecutor, Are file a formal or defer action. magistrate, complaint, drop prosecution, before a . . . court” while the citation sits on the the charges “pending 1, 2005) Charges Pending (July Aruba Murder E.g., <http://www.cbsnews.com 4, 2007); Dermatologist’s license (as /stories/2005/06/30/world/main705394.shtml> of Dec. 29, pending (June 2007) suspended, charges criminal <http://www.phillyburbs.com/ 4, 2007); Charges pending in Route 4 (as pb-dyn/news/103-06282007-1370413.html> of Dec. 17, injured (June 2007) people crash that six <http://www.topix.net/family/teenagers (as 2007). /2007/06/charges-pending-in-route-4-crash-that-injured-six-people> of Dec. “underway” may “pending” necessarily does not mean but also mean point, This too—that entirely verge “imminent” of formal realization”—is overlooked the dissent. or “on desk? One

prosecutor’s way with this in the case at dealing uncertainty hand would be to note the absence evidence that this occurred here. Indeed, evidence that a citation have been filed with the promptly sheet, from the magistrate court docket of which we have appears municipal taken notice at judicial and over defendants’ plaintiff’s request, objection should have offered it earlier. The docket shows on April $3,000. bail was aby in the amount of posted bonding company Plaintiff argues this amount must have been set by magistrate, since $1,050 a near of the represents trebling scheduled bail amount of forth in set the booking information sheet and cause affidavit. inferior probable Specified bail, officials are authorized to release a defendant but (as on relevant here) Code, 1269b, in the scheduled (See amount. Pen. (a), (b).) subds. In contrast, 853.6, (e), section subdivision the magistrate to fix bail in empowers an amount he deems appropriate of the notice “[ujpon filing appear] [to officer, with the magistrate or the of the by filing notice or a formal . . complaint by . .” Because no formal prosecutor was filed complaint until we fail to see April how of bail could have question properly come before the magistrate (or sooner), April unless the officer or had filed prosecutor a notice to then.13 appear by 13The practice common in this district is for bail approved, to be in circumstances such as these, by “night judge” “duty judge,” or granting who in the approval course such necessarily apprised jail an officer functionary charges predicated. on which bail is bail, course,

The purpose of permit is to securing the defendant’s release while his Note, (See appearance at Tinkering System (1968) trial. with the Bail 56 Cal. L.Rev. California 1134, 1135.) Thus even if defendant was released on bail without issuance of a notice to appear—in apparent procedure contravention of the prescribed setting statute—the of bail itself establishes had placed magistrate been before a and were therefore Indeed, pending before a court. only this inference setting flows not from the of bail but from that, docket, the fact as reflected in the a posted bail bondsman bond April 1. A bondsman long would not be in willing business if he were post policeman’s say-so. to bail on a mere He commits appearance himself to the defendant’s in particular charges court to answer in a (See particular case. pp. id. at system operates 1135-1136 bail to [“The insure the defendant’s presence by creating at his trial a financial performance obligations interest in the of his in bondsman, stake, friends, both the bail whose bond is at and in the defendant’s relatives and they (fn. who stand to lose the pledged omitted)].) collateral have you to the bondsman” If court, want to know whether pending are before a ask the bail bondsman. The dissent asserts that such by allegation inferences are barred plaintiff’s complaint in bail, initially phoned that after he acquaintance arrange to “jail arbitrarily officials raised his bail so he post immediately could not post necessary.” the amount keeping In with the [sic] alluded, procedural rigor selective to which we have previously the dissent characterizes this allegation as a set plaintiff of “fetters” that “bound” absolutely preclude so as to his later (Dis. 791.) assertion that bail magistrate. post, was set a opn., p. appears The dissent thus (but to find some unexpressed) meaning clear “jail in the terms officials” and “raised” that quoted allegation renders the urges. irreconcilable with the plaintiff inference now Yet the assert, complaint does not as the apparently supposes, police dissent that fixed bail officers read, judicial without Fairly indicating authorization. it asserts that after bail would be amount, amount, certain “jail officials” higher whimsically caused it to be elevated to a thus shows, interfering with plaintiff’s efforts to secure complaint “jail his release. For all the

However, basis that the to decide the case on the narrow we decline filed with actually that a notice to record an inference appear supports cause of action. We believe in time to save plaintiff’s the magistrate construction, adverted, mandate a which we have statutory principles and more is both simpler application of section 945.3 reading the statute. Under the legislative objective underlying respectful when was directed to were before a court” plaintiff reading, charges “pending service him of a notice charges by upon before the court on specified appear ever filed with a court. whether that notice was regardless appear, is whether case of construction statutory The first question of the complexities under In view scrutiny ambiguous. procedural language above, effect we have no doubt that intended and related authorities noted uncertain before a . . . court” is as potentially “charges pending phrase we must uncertainty like the one. Given in situations present applicable of the statute. consult the purpose the filing prevent of section 945.3 is

The avowed legislative objective an unfair suits in situations where their civil might give pendency plaintiff with originated criminal statute against charges. advantage defending (PORAC), which Association of California the Police Officers Research defendants of civil actions criminal to “eliminate the sought bringing (Assem. Com. on bargaining process.” to frustrate and harass merely plea Sess.) amended (1981-1982 as Reg. of Sen. Bill No. 511 Analysis Judiciary, 14, 1981, contended that PORAC Judiciary Analysis).) 2 (Assembly May are filed for use as actions officers against peace “frivolous civil damage commissioner, by inducing the bail duty judge or officers who “raised” officials” included a they expect. implicitly The dissent magistrate higher than had led to fix an amount amply we has been by falling premise, back on the which believe acknowledges point refuted, filed in papers within the framework of the analyzed that the entire issue must be to, of, summary judgment. the motion for support opposition pleading a rule mistakenly reasoning point on this treats We also note that the dissent’s “ pleader cannot cure a in a verified rule ‘a preclusion. factual The correct is that one of defect omitting allegations subsequently legal explanation, such complaint by simply, without pleading original subsequent a case so as pleadings. filed In such defect infects Coolidge (Gaglione Cal.App.2d ....’” render it vulnerable to demurrer added, Traverso 568], Cal.App.2d Owens v. quoting italics P.2d binding 164].) becomes a every dropрed pleading word in a This does not mean P.2d [271 moreover, Here, any “explanation” forever bound. pleader which the is admission Court decided February, Supreme when the divergence readily apparent: past Until this is Wallace, 1091], the limitations issue as supra, parties S.Ct. both treated U.S. 384 [127 549 Because that accrual of plaintiffs cause of action. largely governing law turning on the federal arguments to rejected trial court defendant’s plaintiff, and because the appeared law to favor litigate tolling under section 945.3. Nor thoroughly contrary, plaintiff had no incentive the sponte allegation, now unearthed sua long-dormant the did he have occasion to revisit means, had, dissent, impeded his by unspecified improperly “jail officials” unspecified release on bail.

757 of (Sen. Judiciary, Analysis Com. on bargaining in the plea process.” chips introduced, 2.) The stated Sess.) as (1981-1982 p. Reg. Sen. Bill No. 511 damage the use of civil to eliminate was “to attempt bill purpose to sign {Ibid.) In the Governor urging levers.” as bargaining complaints plea bill, investigating against arresting that civil ‍​‌​‌‌‌‌​‌​‌​‌​‌‌​​‌​‌‌​​‌​‌​​‌‌‌​​‌‌‌‌‌​‌​‌​​‌‌‌‍actions the author asserted with the and are brought specific ... are frivolous officers times “[o]ften of the criminal bargaining and harass the plea process intent to frustrate 26, Brown, Jr., Davis, G. Aug. to Governor Edmund (Sen. Ed letter charges.” 1981, Sess.).) (1981-1982 Reg. re Sen. Bill No. 511 that, consistent with this objective,

The Legislature contemplated charges to civil suits while criminal would effect a bar complete statute a criminal that the bill would “prohibit remained unresolved. It was reported disposition a civil action . . . bringing defendant final before (Assem. Judiciary Analysis, criminal at the trial level.” charges pending id. added; 2-3 “would criminal supra, prohibit italics see at pp. p. [bill have been charges a civil action . . . until the criminal filing defendant from id. at level”]; based damages 3 civil action for of at the trial disposed [“a of the case criminal could not be filed . . . until final disposition charges level”].) the trial i.e., the statute had a further purpose,

It has been suggested into false suits as a device to inquire use of civil arrest “prevent[ing] the criminal information while materials and investigative prosecutorial (Mohlmann Burbank City 179 Cal.App.3d is v. charge pending.” County Angeles McMartin v. Los 109]; 1042 see Cal.Rptr. [225 Galceran 53]; Harding v. Cal.Rptr. Cal.App.3d Sonoma 906, 908-909; County Emmert (9th 1989) Cir. F.2d we find no (N.D.Cal. 1993) 716.) Although explicit 836 F.Supp. effect, be drawn from inferential legislative history support here, amendments relevant those amendments to section 945.3. As did not extend under the statute disability arising declared with Code section 945.4 of a claim under Government filing pre-suit The effect of officer-tortfeasors. alleged entity employing public file such a claim within civil claimants to amendments was to compel action, whether or not criminal after accrual of the cause of days with the original seems difficult to reconcile were This amendment pending. as “bargaining chips,” the use of civil complaints avowed concern over claim his could now seemingly employ pending because a criminal defendant 945.4, civil suit it antici and the eventual Code section under Government reconciled, and indeed it is easily However bargaining chip. pated, consistent, defendants from criminal with an intent to withhold fully action. of a civil filing available with the devices that would become discovery the a civil a Both of these use of objectives—avoiding complaint the use of civil bargaining negotiations, discovery chip plea preventing the case in a related criminal matter—would be tools probe prosecution’s the statute to a suit to be filed the time reading disserved between by permit (or a citation and the of the citation a with a serving filing complaint) a would a race to the courthouse between encourage court. Such law regime The enforcement authorities and arrestees. no legislative history suggests intent to such a circumvention of The statutory Legislature’s permit purpose. inferred, both are best served if the goals, plainly disability explicit notice, a commences when a misdemeanor defendant is on service of put are the restricting notice to court. appear, charges being pursued By court, effect to the was charges Legislature statute’s pending before but not to the evidently seeking delay starting disability, point formula for end Without the determining workable its provide point. (“before court”), adverbial a . . . be might charges qualifier supposed remained until other not resolved dismissal some by judgment “pending” limitations, criminal as the statute of barred further such prohibition, prosecu- Under that mere inaction the tion. would regime, prosecutorial place plain- tiff’s of action in limbo. To such tolling, cause avoid open-ended that the arrestee would to file a civil Legislature regain right provided action—and the limitations would resume running—when charges period could no without new or additional longer pursued prosecutorial pleadings. Torres, which

This consistent with 108 F.3d reading largely supra, to be the with a on only holding point. appears published opinion square (id. 225.) A there was arrested on March at notice p. 1994. plaintiff time, at that but no was submitted to a accusatory was issued appear pleading (Ibid.) court until a criminal was filed 75 later. A days judgment complaint that, (Id. at conviction was entered some 76 after 1994. days August 30, 1995, 225-226.) The filed suit on June days beyond pp. plaintiff (Id. 226.) concluded that limitation at The district court one-year period. p. barred, the claim the statute was tolled for the 77 from days because the criminal entry judgment. of the criminal filing complaint error, (Ibid.) The contended that this was because the statute was tolled the notice to until entry judgment, service of appear contention, but (Ibid.) of 151 The Court of days. rejected period Appeals than have since been attributed to it. After acknowledg- on narrower grounds that a notice to is an of section “accusatory ing appear pleading” purposes (Torres, 226), F.3d at the court concluded that the 945.3 supra, p. claimed before a court” throughout period were “pending the notice to lost its as an efficacy accusatory because plaintiff, appear within 25 days when the failed to file it or a complaint pleading prosecutor result, 227; 853.6, (e).) As a (Id. after the arrest. see subd. plaintiff’s been based could not have “technically upon plaintiff’s prosecution

759 were not him against the charges to Strictly speaking, March 3 notice appear. 17 May complaint.” Conde filed the until Officer before a court pending 227.) (108 F.3d at p. Torres, somewhat but we diverge result in do with the

We not disagree its said, with ambiguity coupled have the statute’s from its As we reasoning. suit filing the from disability and inferred objectives require express arrestee, of a notice arise, appear, the issuance to a misdemeanor upon as to commence effective fully an accusatory pleading which at that moment is court seemed The Torres a misdemeanor prosecution. and consummate of section notice for thе of the efficacy purposes conceive of a in which regime were, later event—the as it on a retroactively could be made depend, 945.3 within the with the charges magistrate whether to file decision prosecutor’s 853.6, (e). believe this We approach the time allotted section subdivision by unsound, the courthouse because it a race to encourages is both because no rational for which and procedural pitfalls it introduces complications attaches, statute of and the The therefore disability justification appears.14 its tolled, the citation loses the are of or limitations is until charges disposed the citation nor The latter occurs if neither as an efficacy accusatory pleading. case, In a the within the allotted 25 such days. a criminal is filed complaint lifts, after the arrest. This 25 running, days and the statute resumes disability Torres, the there the claim in because plaintiff would not have saved analysis statute, reading coupled a total of and our days, needed excuse there would excuse acknowledged, with the the court tolling period however, soundly we find that case this divergence, days. Apart here. of the result we reach reasoned supportive 374, 379, Cabrera, where F.3d cannot be said of supra, same Torres, that could tolling left the court ignored open possibility, filed within the if it or a commence with a notice to appear complaint holding attributed to Torres Instead court statutory period. are with charges before a court until are not “charges pending filed the virtue of italics.) rule achieves at This original court.” {Id. legislative purpose but at the cost of violence doing plain simplicity, ascertain, know, Indeed, when or readily able to may not or plaintiff the would-be result, regime under magistrate. As appear the notice to is filed with whether then), know, (if defendants, arraignment unlikely any time before by advocated difficulty also introduces approach file suit. Defendants’ and whether he is entitled to when during putative window complaint that is filed determining how to deal with a civil are provision no Section makes charges subsequently pursued. 945.3 opportunity if criminal before a “pending are filed after arrest but before abating a civil action that is abatement, averted sought to be an action threatens all the evils such court.” In the absence of filings, it the statute to allow such Legislature expected of the statute. Had enactment against a so militates failure to do for abatement. Its presumably provided would have window, of unavoidable beyond point enlarges that creates such construction necessity. the statute. Insofar as it treats statutory language unambiguously result, such a we directing with it. It simply disagree goes without saying that, other than a decision the United States Court on a Supreme point law, federal no federal (Elliott decision binds us as precedent. Albright 1028, 762].) 209 1034 Cal.App.3d Here we decline to Cal.Rptr. follow what we consider a mistaken construction of a California statute a by view, federal court. In our section 945.3’s of purpose—prohibiting filing civil suits for use as bargaining avenues of chips auxiliary discovery in defense of criminal investigation best served charges—is by construing ambiguous before a phrase “charges court” to describe pending any charges embodied in a notice to so as the have appear long not ceased to be or, Torres, before a court” virtue “pending of by as in disposition by defeasance inaction. through prоsecutorial

Here, noted, as we have was plaintiff served with a inferentially 30, notice to on March or appear 29 1997. No notice to has ever been appear but that produced, plaintiff argues of such a notice persuasively promulgation must be inferred from the circumstances we have described in of light In governing statutory requirements. general, cite-and-release procedure that, set forth in section 853.6 is mandatory; statute declares subject misdemeanor specified exceptions, arrestees “shall” be released under that 853.6, (§ (a), (h), procedure. (i).) subds. To from this depart procedure, officer must find that the within arresting case falls one of nine specified “indicate, in which case he must exceptions, on a form to be established by his or her law enforcement which employing agency, of exceptions] [the 853.6, (§ reason for the nonrelease . . . (i).) .” subd. Here there is no made, evidence that such a notation was ever or that was not freed plaintiff Code, to the jail pursuant (See cite-and-release statutory Evid. procedure. 664 that official has been presumed duty § regularly [“It performed”].)15 Indeed defendants do not contest the factual on the point; they rely entirely commenced legal proposition tolling with the of a only criminal filing complaint.16 15 only statutory The alternative to these procedures appears we can find in Penal Code 849, warrant, provides person section which that a arrested for a misdemeanor without “if not released, shall, unnecessary delay, otherwise without be taken before the nearest or most , magistrate accessible . . . complaint stating charge against and a person arrested shall magistrate.”

be suggests laid before such No one procedure this was followed here. If it been, had tolling that would confirm the the statute because it would mean that a (“laid complaint magistrate”) was filed before the at or before the time plaintiff’s release on bail. that, 1, 1997, The municipal court docket sheet also indicates apparently April as of 1, 1997, July date appearance was set. Further recitals indicate that bail was forfeited on see, July eight days 1 and reinstated later. We fail to and the dissent how explain, does date, formally apprised could be appearance subject his to bail forfeiture for date, Code, (See 853.7.) appear by appear. failure to on that unless a notice to Pen. § section 853.6 amended bears noting Legislature pointedly

It of warrantless misde- all cases mandatory to make its provisions arrestee had stated that a misdemeanor arrests. The version prior meanor released according before a being magistrate, instead taken “may, 853.6, (a), (Former subd. amended forth by set procedures chapter.” § 1982, 2, 1103, 4005.) amendments replaced ch. p. Stats. § 952, 3304.) (Stats. ch. Similarly, with “shall.” “may” p. § stated, notice to “A officer use the written appear version pre-1984 peace offense in which the forth in misdemeanor set this section procedure or in which he or she arrested a to Section 836 person officer has pursuant 853.6, (Former of a Section 847.” custody has taken person pursuant § added.) 2(h), ch. italics (h), subd. as amended Stats. state, “A officer shall amendments rewrote this provision peace The 1984 notice set forth in this section for any use the written to procedure appear offense in the officer has arrested a without misdemeanor which person taken of a warrant to Section or in which he or she has custody 836 pursuant 1984, 952, 3306, (Stats. 1(h), to Section italics 847.” ch. person pursuant § issue, added.)17In the one case found a similar the court we have on touching older, on the conclude that defendant language relied to heavily permissive been released v. LaRocca statutory (People had not to pursuant procedure. 22, 624].) In the face of the Cal.App.3d Supp. Cal.Rptr. current such a conclusion untenable. flatly mandatory language, appears notice to defendant at the time of inferentiafly served on appear release commenced under section A was filed on his 945.3. tolling complaint 18, 1997, Accordingly, tolling well within the statutory days. April on December through continued the final of the period disposition 12, 2000, therefore Plaintiff’s filed December complaint, timely. 1999. to the difficult This conclusion makes it consider issues unnecessary in arising federal law the wake of Wallace. Battery

D. Evidence Sufficiency of against Defendants’ final contention is that claims individual plaintiff’s evidence. Defendants officers for were not sustained substantial battery their argument concerning sufficiency reference essentially incorporate by I., (See ante.) We reject argument of the evidence of excessive force. pt. reasons we it in that context. for the same rejected an arrest be made. Penal Code section 836 the conditions under which specifies offenses, arresting requires the and domestic violence it officer Except as to felonies certain public person to be arrested has committed offense “probable have cause believe that Code, (Pen. (a)(1).) Code section 847 concerns presence.” subd. Penal the officer’s here, and, peace to a “deliver[y]” of the arrestee officer. by private persons arrests as relevant II. Appeal Plaintiff’s

A. Dismissal Baldwin of Defendant

1. Background Turning we must plaintiff’s first consider whether the appeal, court erred defendant Officer dismissing Baldwin from the case. The ruling challenged occurred in by plaintiff limine on June 2003. At that time counsel for defendants made an oral “motion to dismiss grant judgment Sergeant Baldwin” ground “all of the causes of action that involve her have been dismissed in the course of these various rulings,” such that “it would be ... for her to be appropriate dismissed from the The court proceedings.” out that pointed action, she was “not mentioned” in the causes of remaining the one under including section in which she was “not mentioned in the caption of Defendants at the listing of that beginning cause of action.” Plaintiff’s counsel stated that her omission was “an error on but my part,” also out that the section pointed 1983 cause of action included a paragraph incorporating preceding allegations, including defendant Baldwin “falsi- fied the witness statements” of two eyewitnesses arrest. The plaintiff’s court reiterated that she was not named as a target in the section 1983 cause remarked, of action. It “I think is late to try in an bring individual Defendant on a again cause of action where that individual was not previ- named. ously claims, And it doesn’t affect greatly whether your anyway, she is an individual or whether she is acting as a on behalf of the sergeant in terms of the Department of the policy the Department.” Accordingly, court ruled, time, “In the interest motion, of I am going the most recent grant which is to indicate that Sergeant Baldwin is no an longer individual Defendant in this case” in view of three previous causes of disposition action in which she was named. The court also commented that it specifically was “too late to amend to her in on one bring of the other causes of action.” it, neither

Although mentions the court party made a second apparently dispositive ruling defendant Baldwin later in concerning the trial. This verdicts, from a recital in the court’s appears judgment on entered special 17, 2003. In addition to September decreeing should have Milliken, Martin, on judgment claims specified against defendants and Alto, recites, and Trujillo, of Palo the City “After the judgment taking evidence for the but before the liability issues were phase, liability submitted the Court jury, the motion for granted nonsuit defendant brought by Carole Baldwin.” This ruling took on or around June apparently place 2003, which was the day liability issues were submitted to the Aside jury. recital, from the we have found no quoted record of this which the ruling, seem to parties disregard.

2. Discussion (1) grounds June on ruling Plaintiff challenges was which was in grant judgment pleadings, effect ruling of action Baldwin against erroneous states a cause complaint because in discretion (2) the court abused its “malicious prosecution/false reports”; cause of to add name to section 1983 leave to amend Baldwin’s denying action; was on the the order grant pleadings, viewed as a judgment defective. procedurally must a difficult

At threshold we confront issue appellate the record to contain no appealable because before us jurisdiction, appears almost (or order) defendant Baldwin. It concerning goes judgment dispositive statutory without that in the absence of saying authority, appeal express that sounds cannot be taken from an order even one preliminary judgment, thereof; a case the the death knell for a lawsuit or severable in such portion supra, Witkin, Procedure, (See must be from the final Cal. judgment. appeal 113, 118-121, 178-179, 182-186.) The sometimes Appeal, pp. appeal §§ however, be construed as taken from Here, no later-filed judgment. the claims against defendant Baldwin judgment disposing appears. 11, 2003,

The court’s oral of June reflected ruling apparently minutes; record the clerk’s so far as this reporter’s transcript it was to a court’s granting shows never reduced later order judgment. nonsuit, defendants, as eventual might recited in the other judgment against court, constitute an order “if writing, appealable signed [were] (Santa Barbara Ranch Chowchilla Water Pistachio in the and filed action.” 439, 448, Dist. 856].) The fn. 1 Cal.App.4th Cal.Rptr.2d record Nor fails to establish of these conditions was satisfied. present conferring can the other itself be judgment against defendants viewed in favor of over to the court’s jurisdiction challenge rulings plaintiff’s case, as to defendant In a multidefendant of a entry judgment Baldwin. defendant errors alleged one will not establish over jurisdiction appellate (See Nguyen court’s claims another defendant. against treatment of Calhoun 436].) Cal.Rptr.2d 437 Cal.App.4th are to detect in this record for appellate

We thus unable basis any of claims The correct over Baldwin. against disposition jurisdiction plaintiff’s will want of We jurisdiction. is to dismiss it for this portion appeal 11, 2003 we discern error in the court’s June nonetheless observe that no action, was argues of Baldwin The seventh cause in which ruling. plaintiff included, have “Defendants” violated section alleges should been that detained, arrested, used and they “unlawfully imprisoned plaintiff; when him; force testified in their against falsely police and excessive unreasonable and in court so that he would be and repоrts convicted of crimes he charged did not commit.” Earlier in the that defend- complaint appears allegation Baldwin, Dhonau, ant after the witnesses Walker and wrote interviewing in which she attributed various statements to them that did report they not make. It is also that she with alleged Officer Milliken “to “conspired” false give and to make their false testimony, testimony consistent with the other’s false about whether [yz'c] Baldwin testimony, Sergeant changed Agent Milliken’s and did so without his report, knowledge”; that she false “gave in her and testimony in court” on that she police report subjects; specified with other officers to false about conspired testimony arrest provide plaintiff’s matters; and and his specified ancillary discovered on a plaintiff attorney date that Baldwin had testified and that specified falsely; had she testified trial, truthfully his criminal he have been all “would acquitted charges.” true, asserts, It is also these plaintiff allegations were technically action, reiterated in his seventh cause of which recited that he formulaically “reallege[d] as if set forth here in incorporate^] preceding paragraphs full.”

However, it is not true that the seventh cause of action can be understood Baldwin, to state a cause of action against because disclaims impliedly any reads, intent to do so. The of the cause of action heading “Seventh Cause (Defendants U.S.C. Action—Deprivation Rights [f] [][] Milliken, Martin, Alto, of Palo Trujillo, City Palo Alto Police Department).” The manifest and of such a roster at the head of a cause of customary purpose defendants, alone, action is to that the named are the convey they targets of that cause of action. This is a and should be salutary practice, encouraged, but that does not mean that the effect of such a recital can be aside swept when a has second about omitted The thoughts defendants. core it, is to notice purpose give affected and the pleading persons Baldwin was not affected notice here given and did not need by, defend against, seventh cause of action. then is whether the trial court abused its discretion in question finding

it “too late to amend to in” on that or bring another cause of [Baldwin] action. At the time of the counsel did not ruling, plaintiff’s challenge determination, and did not leave to amend. This formally request might view, excused on the court’s but it grounds futility, given still expressed have behooved counsel to make a might case amendment. In he particular have addressed the critical also from his brief might absent point, appeal, that it made to his case whether Baldwin was a named defendant. difference consideration of leave to amend Any weighing requires potential preju- dice inflicted on the defendant the the plaintiff’s delay, against prejudice inflicted on the him to on forcing the unamended plaintiff by proceed To the extent that to fasten individual on complaint. sought liability plaintiff Baldwin, her, on a the theory against previously pleaded potential the extent is obvious. To increase in stakes her a significant from

prejudice trial answer the failed did not seek entirely that he objective, plaintiff the the same case against much that he could still present court’s observation his case would on how he to show appeal defendant Nor has city. attempted cause in the section 1983 Baldwin including have been strengthened by action. Baldwin dismissing the order challenge

Insofar as appeal purports action, jurisdiction. for lack of it is dismissed appellate from Issue Preclusion B. Reconsideration Improper

1. from the jury trial court erred taking Plaintiff contends that in violation without cause legal whether defendants detained plaintiff question The court concluded free of unlawful seizures. of his constitutional to be right evidence, brought which he motion to suppress that the denial of plaintiff’s him, in this case relitigation against the criminal prosecution precluded As a result of without sufficient cause. whether officers detained him question detention was a from that his claiming the court barred ruling, violation, “that there has been and instructed the jury section 1983 separate detain lawfully plaintiff.” Milliken did determination Officer judicial the earlier order by these actions conflicted with Plaintiff contends or sum- summary judgment motion for another defendants’ judge denying others, that the ground, among That motion was made on mary adjudication. collaterally the criminal matter motion in the denial of plaintiff’s suppression arrest. In of his detention and him contesting legality estopped motion, the claim of collateral estoppel the trial court rejected denying not, hearing, litigated had in the suppression that plaintiff implicit premise were fabricated. versions of events whether officers’ question to treat motion in limine defendant’s According plaintiff, the trial reverse judge “an effort to have as conclusive was ruling suppression with compliance as such ruling,” required . . . summary judgment [the] 1008). That statute limits (section section 1008 Code of Civil Procedure (a)), and to submit (§ repeated subd. move for reconsideration right (§ once been denied after it has for “the same order” applications order” as not seek “the same for a does (b)). ruling But an subd. application of law that on a contention because it depends merely previous application trial An it. application who judge, rejected once been made to another has on a issue given of relitigation to treat a adjudication preclusive previous or summary judgment a motion for the same order as issues does not seek summary adjudication.

Plaintiff’s cited on this does not otherwise. In Morite authority point suggest Court Superior 19 Cal.App.4th Cal.Rptr.2d of California 666], occurred, one had a lawsuit until a condition but judge stayed specified another in defiance of the set the matter for trial. The judge, stay, reviewing court held that the second had in effect judge reconsidered and overturned the order, first which he lacked to do with section power except compliance case, none, 1008. Plaintiff cited has no and we know of that section suggesting 1008 bars to whom a case is for trial from judge assigned on ruling th.e issue of law as to which another has denied judge previously summary To read the adjudication.. statute that would be a broadly prescription calcified and trial toward reversal pointless proceedings grinding inexorably for errors that could have been appeal easily corrected but for perceived lack of to do so. power

The is summary judgment to remove issues from the procedure designed case to trial where it is that one side or the prior other has no plain for its The evidentiary also be used to support position. procedure may issues of law where the facts are not in In adjudicate pure neither dispute. case does a denial of the motion that one finally adjudicate anything except has failed to burden of party carry heavy its entitlement to establishing judgment as а matter of law. The summary judgment is procedure hedged about with restrictions and because it threat- procedural safeguards precisely ens to of a trial. deprive opponent

It would be both unwarranted and unwise to hold that such a ruling contention at precludes moving reiterating legal trial. party purely the time the case reaches a trial there By is no call for the department fastidiousness The are procedural summary accompanying judgment. parties issues, as will ever be to meet the and the presumptively ready they judge with the to resolve all of law the fully charged issues power parties course to are such as present—subject rulings really preclusive, grants 437c, Proc., (See (n); Code Civ. summary adjudication. subd. cf. Code § Proc., (a)(8) Civ. subd. of court to “amend and [declaring power § control its and orders so as to make them conform to law and .process For these reasons we contention that the trial justice.”].)18 reject plaintiff’s could not entertain defendants’ on collateral judge argument estoppel. nonpreclusive explicitly recognized grant effect of denial is in the that a directive summary adjudication operate relitigation as to some issues “shall not to bar” of other issues Proc., 437c, (Code summary adjudication sought “as to which either not or denied.” Civ. (n)(2).) flatly dispositive summary judgment subd. would be here had provision This not the entirety. suppose motion been denied in its We can conceive of no reason to a denial of tendency summary judgment judge in whole has more to bind the hands of the trial than a part. denial in Ruling

2. Suppression Preclusive of Effect view Did the trial court properly We turn then the merits to question. aas in the criminal action denial of motion to the plaintiff’s suppress lawsuit, determination, had that officers for of conclusive purposes cause to detain plaintiff? probable 73 (1999) City Both cite v. Montclair McCutchen parties of of their {McCutchen), in 1138

Cal.App.4th Cal.Rptr.2d support 95] [87 for apply there identified the five familiar prerequisites court positions. of (issue the to bar relitigation doctrine of collateral ing estoppel preclusion) “ issue to that ‘(1) an issue in an earlier the is identical addressed case: and in a (2) actually litigated decided former the issue proceeding; decided; the (3) (4) the asserted a necessarily against doctrine is party (5) action in a and the former former or one who was with such privity party; ” 1144, v. (Id. Kelly is made on at decision final and was the merits.’ p. quoting (1998) 67 Companies, Cal.Rptr.2d Vons Inc. 1339 Cal.App.4th [79 763].) The went on to conclude that these factors giving court permitted that there conclusive effect to a at a magistrate’s hearing ruling preliminary a finding was sufficient to hold the for trial. It held that such cause defendant defendant, suit, him barred a the that officers arrested claim civil without cause. probable

We narrow of McCutchen soundness of the question holding of, or because we do believe a either raises the issue preliminary hearing arrest. The of an provides opportunity litigate, legality adequate (9th 1994) court relied Dillard 17 F.3d for (Haupt), on v. Cir. 290 Haupt cause to identical to (1) the issue of arrest is propositions probable “because, that new showing that of sufficient cause to hold trial absent a arrest, the evidence after the became available prosecution plaintiff’s on for trial was evidence to hold over ruling sufficiency plaintiff and de facto the evidence arrest the sufficiency plaintiff,” on ruling and the issue “the had full fair opportunity litigate (McCutchen, .” supra, cause at the . . . hearing probable preliminary 289-290.) F.3d at Haupt, citing supra, Cal.App.4th pp. (or arrest We do not belief. cause” to “probable share either The issue as—let alone identical detain) is not the same simply sufficient cause to (See People defendant for trial. to—that sufficient cause hold the issues Cal.Rptr. Williams Cal.App.3d 303] [“The has are whether a offense before a on magistrate hearing public preliminary there cause to believe the defendant committed whether is been and probable Indeed, detain is of cause to arrest or thereof’].) existence guilty defendant irrelevant to the issues before magistrate, (Ibid. prohibited on that ground into it. inquiring as no [“Inasmuch motion suppression was made at the preliminary hearing, issues before the magistrate were whether a had burglary been committed and whether there was it; sufficient cause to believe committed respondent defense counsel’s questions cross-examination of the officer to his relating state of mind and what information he had received the break-in concerning had no tendency reason to prove disprove issues before the magistrate”].)

Moreover the magistrate over a presiding is not preliminary hearing to resolve empowered questions or credibility conflicts in the evidence bear except they on the existence of “sufficient cause to believe that the Code, 872; defendant is (Pen. id., . . . .” guilty see 871.) The § magistrate § does not decide whether the defendant is but actually guilty, whether the evidence at the hearing establishes “such a state of facts as would lead a man caution or ordinary to prudence believe and entertain a conscientiously strong of the suspicion guilt of the accused.” v. (People (1973) Uhlemann 9 662, 657, Cal.3d 667 609].) 511 P.2d Cal.Rptr. [108 His or opinion guilt innocence “is of no legal significance whatever in view of the limited nature (Id. 667, 3; at proceedings.” fn. cf. v. People (1984) 35 Slaughter 629, Cal.3d 637 677 P.2d Cal.Rptr. [200 [stating “is magistrate 854] not a trier of fact”].)

It follows that a magistrate’s finding of probable cause to hold a defendant for trial is not a finding (or cause to arrest probable detain), and were, that even if it the magistrate’s limited factfinding do not powers permit the defendant to “actually litigate” the issue so as to give magistrate’s ruling preclusive effect in a later civil suit. however,

These order, do objections, not extend to an such as the one here, issue a motion to denying evidence on the suppress ground officers detained the defendant In that unlawfully. situation the ultimate issues are identical, i.e., whether circumstances sufficient supplied cause for the officers’ Here, actions. plaintiff’s motion was made on the suppression stated ground officers “police detained Mr. Schmidlin without reasonable suspicion or any improper illegal activity.” This issue is identical to the one plaintiff raised in i.e., his civil action that he by alleging was detained “unlawfully,” cause, without and legal that all of the officers’ arresting assertions concern- (i.e., cause ing to detain drunkenness) plaintiff’s apparent were false. evidence,

As a criminal defendant moving suppress was entitled the officers’ challenge both credibility, and attacking directly evidence their presenting account of contradicting (See events. v. People Needham Cal.App.4th Cal.Rptr.2d hearing [93 899] [court “ judge a finder of fact with power motion ‘sits as suppression evidence, ”]; conflicts, draw inferences’ and weigh resolve credibility, 91 P.3d Holloway Cal.Rptr.3d 33 Cal.4th People testified, trial and court at which three officers defendant hearing 164] [after of the witnesses” “detailed findings regarding credibility made Code, (c)(1) facts]; (section 1538.5), subd. Pen. 1538.5 [“When- relevant court as provided is made in ever a search or seizure motion superior section, issue of shall receive evidence judge magistrate motion”].) fact determine the necessary not suffer on such would ruling effect to issues

Giving preclusive a magistrate’s of collateral the infirmities we find the extension estoppel Indeed, that the denial of a agree seemed to below orders. holding parties could effect defendant’s later section motion to have in the suppress preclusive in issue if the were action issue of officers’ credibility put determined forth by to him. The reason adversely put plaintiff’s principal to the that in the presenting counsel for not conclusive effect order was giving he the of challenge credibility motion “did not suppression [the officers] the facts cause.” He described the going suppression of any probable as “a tactical some information on the officers’ get police motion decision to He that he had no evidence” in version of events.” out “submitted pointed the of the motion. He also asserted the record of suppression support did I am the not contain “a where hearing single question challenging litigate officers’ version.” He that he had lacked “a motive to the fully stated witnesses, have motion” because “even if we had on our it would been put Schmidlin, D’Honau, and more than word Walker nothing against Milliken’s an issue of fact and And we are not to win that on motion credibility. going not to do.” He So that was what I was clearly trying suppress pretrial.... sort in a of tactical limitation on the issues argued presented McCutchen, supra, motion was in at Cal.App.4th suppression recognized 1145-1147, aas basis for effect. pages withholding preclusive McCutchen, that in Haupt, supra, the court At the cited wrote pages 289-290, at “the court that in some cases the 17 F.3d pages acknowledged of have not the issue fully litigating probable tactical reasons for plaintiff may situations, the and in those collateral cause at preliminary hearing, estoppel turn, (McCutchen, 1145.) In the supra, at p. might apply.” Cal.App.4th well choose Haupt may that for tactical reasons a litigant court “assume[d] and that in cause criminal litigate fully during prosecution, not to probable (Haupt, supra, 17 F.3d at such a case be estoppel might inappropriate.” there, however, declined 289.) The court such rationale any p. apply have had for not might because tactical reasons Haupt’s attorney “[w]hatever the evidence motion to did not have effect on the pursuing suppress (Id. In McCutchen the 290.) at court at the presented preliminary hearing.” rationale, the it claim rejected reach the of that because did not applicability i.e., on another it was from the preclusion ground, record that the apparent relied on evidence that was not magistrate available officer at arresting of the (McCutchen, 1147-1148.) the time arrest. supra, 73 Cal.App.4th pp. We the that a criminal accept defendant withhold issues proposition adjudication at a and them suppression hearing thereby preserve for in a later civil suit. The adjudication defendant should entitled to put its test the prosecution proof, legal sufficiency facts asserted in seizure, of a searсh or without support the chance to later that forfeiting prove words, of the was false. In testimony officers other the defendant should to test be able legal sufficiency justification claimed for a given or search seizure without challenging evidence veracity prosecution case, on which that claim rests. In such a where the latter is not actually a later assertion litigated, falsity fabrication should not be foreclosed. did, it is Here likely attorney as he limit his plaintiff’s says, presenta- tion at for hearing tactical reasons. It does-not suppression that he appear amade serious effort to trial court that should persuade disbelieve officers. Had he viewed the as a testifying full-out trial of the hearing would issue—and trial he get—he would have called undoubtedly the two civilian whose eyewitnesses, testimony presumably credited on action, points by other in this and who have jury would a basis provided officers, arguing testimony defendant particularly Milliken, encounter, who initiated the was false. In this sense and to this extent, it is the doubtless true that issue of detain cause to was not plaintiff at the litigated fully suppression hearing.

However, troubled, below, we are as was the court frank by counsel’s reasons, that concession he the motion for tactical brought suppression was, and that his interest in the it professed substantive issues raised in essence, Moreover it that failed to steer pretextual. counsel well clear appears issues at the he credibility suppression Although now disclaims hearing. to any try intent issue of officers’ he never such a credibility, conveyed limitation to the court over that theOn he relied presiding hearing. contrary, on issues of twice to credibility least lines to which justify questioning was made. Thus he to cross-examine Officer Milliken about objection sought car, he would whether ‍​‌​‌‌‌‌​‌​‌​‌​‌‌​​‌​‌‌​​‌​‌​​‌‌‌​​‌‌‌‌‌​‌​‌​​‌‌‌‍his car 20 feet another as ordinarily stop patrol done, he he had on this testified occasion. A relevance objection was sustained, that counsel whereupon urged “goes question credibility. It’s odd to leave feet between the counsel twenty cars.” Later to ask sought the officer about his decision not to entrust to his two plaintiff companions, whether he would be interested in out” whether asking “normally finding they take an Again lodged could with them. was on plaintiff objection grounds “Yes” the court’s relevance, counsel answered to and in the ensuing colloquy surrounding his on the facts testimony “Is this to question, impeach detention and arrest?” for justification as credibility

Even more was counsel’s reliance telling Martin, who but who not called by prosecutor, Officer was questioning The as officer. designated investigating was courtroom present to object that he would stating an offer requested prosecutor proof, has counsel the officer testifying knowledge Martin’s “unless has specific it’s Other than that information that will witness. impeach previous to reasonable I don’t see how it will rebut fishing go and expedition, court asked eventually cause for the arrest.” The suspicion probable counsel, will in fact defense “Do have information his you testimony “Well, witness?,” certainly the other to which counsel there impeach replied, as that would lead one believe that isn’t much Officer Martin’s to report drunk, Mr. was There be variations in degree, Schmidlin staggering may [f] relevant; and I think the would be be so that it’s significant testimony might Also, evidence, get relevant. I’m I’d like to highly since moving suppress all want out what the evidence is that we’re exactly going suppress.” Martin, then counsel exаmine who that he court testified permitted to a for came the scene in defendant Milliken radio response request was to tendency second unit. Counsel asked whose questions only apparent doubt, doubt, claims that cast for on Milliken’s lay groundwork casting Thus visibly dangerous. drunk counsel potentially explored assistance, what establishing Milliken had said about needing request Officer Milliken’s conveyed urgency. no Counsel also whether explored and whether safety stance toward concern his own plaintiff bespoke Martin himself had noted of intoxication. signs fair”

We that a “full and recognize suppression hearing provide a civil to test of witnesses as is afforded veracity opportunity with a entirely lawsuit under section We are also less than satisfied 1983. be to victims regime consequence may require police whose practical in an credibility attempt misconduct to choose between the officers’ attacking evidence, of suffering to an unlawful of expose preclusion acquisition that criminal civil causes of action that be meritorious. We repeat their of orders by confining defendants can the effect such mitigate preclusive legal sufficiency for officer a claimed challenges justification to the of conduct, of that in issue the factual veracity justification. without putting Here, however, that was ruling we cannot fault the trial court’s plaintiff of a credibility “have it when he used the issue seeking ways” to both tactic, sought and then what he characterizes as a discovery now pretext lot a later lawsuit. to that issue “a whole more” in relitigate 772 Finality

3. Order Suppression of Plaintiff also asserts that the order his motion lacked denying suppression the required receive effect.19He v. “finality” preclusive Heath Cast quotes (9th 1987) 813 (Heath), Cir. F.2d statement for its “[m]otions evidence under suppress California Penal Code section are not 1538.5 considered final judgments under California law for collateral of purposes This statement echoed in v. estoppel.” is Meredith People 1548, 1556 (Meredith). Cal.App.4th Cal.Rptr.2d Both cases attribute 285] the stated rule People Gephart Cal.App.3d 999-1000 [156 three (Gephart). All of these cases were Cal.Rptr. limited 489] effect on of preclusive prosecutors orders granting motions. In suppression a in Gephart order made one was when suppression raised as a bar the county in prosecutor sought another different county pursue charges. In Meredith a federal order held not to was order suppression preclude denying suppres- sion in a state In drug Heath an prosecution. order evidence was suppressing held the not to bar a defendants in section action from the contesting of their alleged These have illegality necessary actions. no holdings applica- tion to an order Whether denying motion. the suppression they support result on sought how well their depends rationale applies denial of here at issue. suppression noted, rule,

As both Heath and Meredith rest on a supposedly adopted are Gephart, orders not “final” for suppression under preclusion purposes California But law. that decision announces no such rule. It never mentions the finality and alludes to the requirement, concept finality only discussing dismissal “technically improper” original prosecution there under Code Penal section at (Gephart, 998. supra, p. Cal.App.3d 3.) fn. The court remarked did that this not create “because “problem” there order], failed to thus the beсame People appeal issue [dismissal final (Ibid.) failure to It is evident that the here appeal.” “finality” were, discussed is not for collateral for if it “finality” required estoppel, conclusion would contradict the rule attributed to case in quoted Meredith and Heath. rested on the section Gephart holding legislative policies underlying

1538.5, not on lack the other court-made supposed “finality” rules collateral The court noted governing purpose estoppel. primary of the statute to avoid of a search or seizure at adjudicating legality trial, attached, because will then have that an jeopardy such order suppressing evidence, erroneous, if even free the would defendant without possibility 999.) retrial. Section (Gephart, supra, 93 1538.5 thus Cal.App.3d intended to for the determination of issues provide bearing suppression

19 fail to address point. Defendants to review trial, various rights pretrial the

before and to grant prosecution (Ibid.) did not Legislature The court concluded an adverse decision. the “beyond proceedings a conclusive ruling intend to make such pretrial (Ibid.) determination.” at the time of the which the defendant is involved cases but in other the order’s effect in civil court was concerned not with the case in effect ruling beyond It that to the give criminal cases. observed a challenge decision not to made turn one which it was would prosecutor’s though even a to another’s decision to prosecute, order into bar suppression of the legality rest on “reasons independent the first decision might quite (Id. 1000.) the search and seizure.” Gephart the an assessment of purposes

The rule in thus on hinges statute, the reflected in its as well as history specific the underlying override the law In effect those judge-made procedures prescribes. purposes to of collateral The core statutory objective prevent estoppel. grant the defendant affording erroneous of a motion suppression That was not served absolute shield further against prosecution. purpose in another one lack of success to bind a prosecutor permitting prosecutor’s contrast, the statute as then In Court later held county. Supreme framed did where a prosecutor collateral permit application estoppel motion, case, dismissed that refiled substan- voluntarily lost suppression to sought relitigate identical in the same and then tially county, (Schlick Court Superior v. defendant’s evidence. right suppress 926].) P.2d The statute was Cal.4th Cal.Rptr.2d [14 a limited to such right amended to grant subsequently prosecution (People Gallegos (1997) 54 “refiling relitigation procedure.” decision, 666].) Court’s The Supreme Cal.App.4th Cal.Rptr.2d however, noted remains as evidence that the restrictions on collateral estoppel Heath, and Meredith rest not on Gephart, law elements of common with rule but intent of the Legislature respect on express implied motions to suppress. fact, conten cases substantiates

Given that none of these plaintiff’s denying lacks finality purposes tion that an order motion suppress a conclusion. In felony Nor does the statute such issue preclusion. support on a cases, of fact bearing a defendant has a limited issues right relitigate first made at his preliminary motion where the motion was suppression i.e., to trial. at a hearing prior he “renew” motion hearing, special however, 1538.5, the evidence is limited (§ (i).) the renewed hearing, subd. At to evidence that could hearing to “the transcript preliminary hearing, except at the have been reasonably presented preliminary (Ibid.) hearing.” recall witnesses who testified at preliminary people may this limited opportunity defendants are not even afforded Misdemeanor them, the statute contemplates As to revisit the issues bearing suppression. 774 once, trial,

that those issues will be litigated to and not revisited.20The prior 1538.5, order resulting (§ is and immediately subd. separately appealable (j)), case, to a contrast denial in a of which can felony review be pretrial only 1538.5, (§ obtained by extraordinary (i)). writ subd. charac- discretionary ter latter a remedy may weigh for against finding finality preclusion but the for misdemeanors to purposes, procedure appears designed encourage, if not a full and fair of the matter require, single followed hearing immediate review.21 appellate

These in no militate provisions way here of the against application common law issue under which a principles governing preclusion, prior final adjudication may to if it “is deter sufficiently support preclusion mined to be firm to (Rest.2d be accorded conclusive effect.” sufficiently 13; Park, see Border Judgments, (2006) Business Inc. v. City Diego San § 142 (Border Park); 1564 Cal.App.4th Business Cal.Rptr.3d [49 259] (1983) Sandoval v. Court 140 Superior 936 Cal.App.3d Cal.Rptr. [190 Sabek, 29]; Inc. v. Engelhard Corp. 65 998 Cal.App.4th 882].) In whether Cal.Rptr.2d determining or order satisfies this judgment test, “(1) courts look to factors including whether decision was not tentative; heard; (2) whether the were avowedly (3) whether the parties fully court its decision with a reasoned supported whether the opinion; Park, (Border decision was an Business subject appeal.” supra, first, third, 1565.) Here the Cal.App.3d and fourth factors unequivocally tentative, favor The decision was not finality: or otherwise. The avowedly court the reasons for its the second factor cogently expressed ruling.22 Only debatable, and that because only elected not to mount a full-fledged cases, (g) provides Subdivision of section 1538.5 that in misdemeanor “the motion shall validity be made before trial and heard prior special hearing relating to trial at a 1538.5, trial, (But (h) if, [permitting search or seizure.” see subd. prior motion at trial “opportunity grounds for this motion did not exist or the defendant was not aware of the (J) motion”].) up Subdivision of section 1538.5 entitles the defendant to a continuance of days prepare special if he intends to file such a motion “and needs this time to for the hearing on the motion.” That subdivision also entitles him to release on bail or his own recognizance, stay proceedings, and authorizes a while he from an prosecutes appeal denying suppression. order 21Felony challenge and misdemeanor defendants alike are entitled to an order of denial on 1538.5, (§ (m).) judgment appeal from of conviction. subd. This does not detract from the legislative permit litigate evident intent to the defendant to the issue once in the trial court. said, upon presented The court “Based the evidence before me the court is satisfied that opinion the officer at the time did have sufficient factual foundation to form an the defendant danger was intoxicated a level that he take pose was unable to care of himself and Q] obviously public. strongest himself or the This is not the factual case for that conclusion in hand, lying gutter pool that he wasn’t in a of his own vomit in the On the other ....[][] [,«c] sincerely court evidence credible on the finds the witness’s issue believes officer subjectively objective for that believed what he said and there was sufficient factual basis opinion.” There is no court would testimony. suggestion

attack on the officers’ him their credibility heard” on the issue of have from being “fully prevented If he was not heard” “fully or the verisimilitude of their account. concluded, time, he he as we have because so elected. At same previously Under did withhold the credibility adjudication. issue clearly the order was firm to be sufficiently these circumstances we conclude that deemed final. Meredith, supra,

Plaintiff to the statement 11 also alludes 1556, ac ordinarily at that “collateral effect page estoppel Cal.App.4th corded reached in in which determinations proceedings jeopardy [has] however, attached.” In the the court stated that preceding paragraph, “[collat eral in criminal of double estoppel jeopardy applies proceedings independent (Id. 1555.) here All of the cases we have discussed principles.” issue indeed arise from recognize may rulings preclusion pretrial criminal cases. The statement no basis to that it did furnishes quoted suppose not arise here.

Plaintiff failed has to convince us that the trial court erred in issue applying to withhold the from the preclusion illegal detention question jury. Jury Instructions on False Arrest and False Reports

C.

1. Undue Emphasis found jury on his claims that officers arrested him against plaintiff without cause and falsified in order to him to probable subject police reports Plaintiff contends that these were the of several prosecution. findings product erroneous he instructions. First that the court complains rejected pattern (BAJI 7.66) instruction on cause crafted No. in favor of instructions probable defendants, which he characterizes as a discussion “long repeatedly that, slanted toward the he officers.” He identifies statements police eight “discuss cause from a officer’s says, probable concepts police perspective and ... are not balanced with statements from an arrestee’s any perspec- tive . . .” . He does not to contend that of these statements appear any law, mischaracterize the or that law was any applicable germane principle omitted. Rather he cites Fibreboard Products v. East Union Paper Corp. Bay 675, Machinists 64], where Cal.Rptr. Cal.App.2d [39 refuse, court wrote that “it is error to instructions give, proper issues, defenses either or unduly theories or overemphasize repetition them or the instruction singling although out them making unduly prominent be a legal proposition.” [correct] We are not convinced that the instruction challenged unduly emphasizes issues or theories favorable to the defense. Insofar as plaintiff’s complaint track a contention without an immediate statements defense targets statement of we are not directed to countervailing plaintiff’s position, in the record where these exact were objections lodged point appropriate amendments Nor can we that these errors of if say emphasis, any, proposed. Morris, Inc. Whiteley Philip (See are to have affected the verdict. v. likely 635, Soule v. General 807]; (2004) 655-656 Cal.App.4th Cal.Rptr.3d [11 Motors Corp. (1994) 8 Cal.4th 573-580 882 P.2d Cal.Rptr.2d Owens-Illinois, Inc. 298]; Cal.4th 983 [67 Rutherford 1203].) 941 P.2d Cal.Rptr.2d 2. Probable Cause to Arrest

Plaintiff next the instruction defendants and by contends proffered the court called the to decide not the given by erroneously jury upon but also the facts arrest surrounding plaintiff’s legal question probable did from the diverge cause arrest. court’s instructions approved pattern that the cоurt will instructions on this BAJI No. 7.66 subject. contemplates which, found, for the the facts if would furnish cause to jury probable specify arrest, facts, the that if it finds those it “must find that there was telling jury the Judicial Council of reasonable cause to plaintiff.” [arrest] [detain] California Civil Instruction CACI No. which instructs on Jury an to a false arrest claim under state cause as affirmative defense probable law, that, if would likewise court “facts specify proved, requires cause to believe that had committed a crime in constitute reasonable plaintiff facts, he defendant’s and states that if the defendant those presence,” proves (Italics warrant.” “had the to arrest without a authority plaintiff] [the omitted.) boldface instructions, forth in full in the margin,23 may

Here court set gave follows: A not be arrested without person may probable paraphrased the time of cause. Probable cause exists where facts known to the officer at to believe arrest were “sufficient to lead a officer reasonably prudent police by stated as follows: reporter, pertinent As transcribed instructions Constitution, probable cause person “Under the States a not be arrested without United where the facts and circumstances known to a law for the arrest. Probable cause exists arrest, supplied to the officer before enforcement officer at the time of the or the information arrest, that the making reasonably prudent police to lead a officer to believe were sufficient committed, plaintiff person and that the was the plaintiff crimes the was arrested for had been them, probable An made with cause who committed at least one of one of the offenses. arrest any that the did not commit of the crimes for which plaintiff is lawful even if it turns out later is he was arrested. by a of the evidence that the “Again, plaintiff proving preponderance the burden of bears by justified probable arrest was not cause. had committed a crime plaintiff it for an officer to believe that “Whether was reasonable by constituted one of obviously plaintiff’s whether the behavior observed the officers turns on understand, refusal person’s arrested. You should plaintiff the crimes for which committed, crimes was arrested for had been and that the plaintiff was the who committed at least one of them.” Probable cause person oneself,

is not established refusal to answer or or identify by questions criticism, “verbal to the officer’s conduct. Plaintiff opposition, challenge” officer, was arrested for intoxication and and was later resisting public with false identification. If Officer Milliken had charged giving probable not, cause to arrest for of these the arrest was lawful. If he did charges, was unlawful. instructions,

The vice in these is that says plaintiff, they required cause, to determine jury the existence of which ais probable “question (Com. 7.66.) law.” to BAJI No. This contention relies on the vexing arguably somewhat chimerical distinction between of law and questions made, of fact. It is said questions that when a claim of false arrest is existence of circumstances offered to is a justify arrest of fact” “question while the of those sufficiency circumstances to actually justify arrest is of law.” “question What is meant this is that if the relevant events and controverted, were; circumstances are decide must what but that jury they the court must decide whether a set of circumstances satisfies the given legal under the rubric requirements captured of cause.” This has led to “probable the judicial on which the рronouncement instructions are based: pattern “When the facts are controverted or the evidence is must conflicting, jury facts, established, be instructed as to what [i.e., if constitute reasonable cause. probable] Only of the existence of such question facts should be submitted to the It is error to jury. a definition of give jury reasonable questions identify answer or to probable himself does not itself create person cause to arrest. A may verbally oppose, challenge criticize or police opposition, action. Such verbal criticism or challenge grounds is not person. itself to arrest the arrested, first, “Plaintiff was prosecuted by Attorney, and was the District for the crime of section, public 647(f). 647(f) intoxication in violation of California Penal Code section That of Code, the California Penal person public place, willfully states that a found in a under influence of any drugs alcohol or combination of alcohol and in such a condition that he is others, unable to exercise safety safety guilty care for his own or the disorderly of conduct, and it is a misdemeanor. for, “Plaintiff prosecuted by Attorney, was also arrested and was the District for the crime of duties, resisting, delaying, obstructing discharge officer in the of his a violation of 148(A). charge California Penal Code Section upon plaintiffs alleged This was based attempts lawfully to leave after he was detained. “Finally, plaintiff prosecuted by was arrested and Attorney the District for the crime 148.9, giving false identification in violation of California Code Section which makes [P]enal it a provide misdemeanor police false information or false identification to a for the officer purpose evading proper identification. necessary probable “It is not for cause charged. you found for each of the offenses If find that Officer Milliken had probable plaintiff any cause to arrest the for of the offenses for However, charged, he you which the arrest was lawful. if find that Officer Milliken did not probable have plaintiff charged, cause to arrest of the offenses for which he was arrest was unlawful.” the facts are within or without them to determine if cause to instruct 7.66; (Com. Authority, to BAJI No. see Sources definition. [Citations.]” Co., Inc. Penney Gibson v. J. C. foil. CACI No. quoting P.2d the evidence is Cal.App.2d 1057] [“[W]here ‘ facts, conflict, as to what if “it of the court to instruct the duty jury [is] ’ established, ”].) cause” would constitute probable it mandates rule be overdue. The instruction Reconsideration of this that have been a long subject in form the “formula” instructions resembles Procedure, Trial, Witkin, supra, (See Cal. criticism. judicial more 367-368.) necessary clear an instruction is any Nor is it that such pp. an element of than in the others where (or many in this setting appropriate) of factual controversies and the case on the resolution plaintiff’s depends given The instruction resulting findings. of rules of law application to decide what the law requires here did not vest the with the jury power cause, arrest an arrest. It told the that an jury required probable justify facts, and that if the found jury consisted of a certain state cause probable facts, the allocation of functions there was cause. As affecting those probable indistinguishable and the this jury, approach appears between judge Given this essential equiva- substance from that logical by plaintiff. proposed lence, could have it is difficult to see how the instructions prejudiced even if erroneous in form.

3. Arrest Versus Detention told the jury that the court’s instructions “virtually Plаintiff contends the facts that He argument had been arrested.” lawfully predicates [he] without telling jury the court arrest and detention together discussed that jury the court told that were two they concepts; separate did lawfully that Officer Milliken “there been a determination judicial ha[d] the two would juror equate detain Plaintiff reasonable says plaintiff.” had been already of the arrest and conclude that lawfulness concepts determined. “Plaintiff the instructions: following

This refers argument passage without him without a warrant [sic] that defendant Milliken arrested claims damages to recover money for the arrest. Plaintiff seeks cause probable that he arrested Officer Milliken admits claim Officer Milliken. against that, involved in this under the circumstances but he contends the plaintiff, to arrest case, he had cause lawful because probable the arrest was investigative detain a for can and briefly person Police stop plaintiff, [f] articulable by has a reasonable suspicion supported if the officer purposes articulable The officer’s activity. in criminal engaged facts that a is person Detention for investigation more than a hunch. must amount facts measured standard as to whether other objective officers the same would have defendant of criminal at the position suspected time of activity detention. You are instructed that there has been a determination that judicial Officer Milliken did detain lawfully Under the laws of the State plaintiff. H] California, Milliken, officer, defendant as a had the to arrest police right without a warrant if he plaintiff had cause for probable believing had plaintiff committed a crime. . . .”

No doubt this instruction could be in several but we improved ways, fail see that it posed any significant danger of leading jury equate of arrest with that concept It investigatory detention. is common knowl- edge arrest into contemplates taking This common person custody. cannot be confused with the conception readily of an officer to power “stop detain a briefly person investigative Nor is it purposes.” accurate does, as say, no transition or contrasting language “[t]here that the indicating were jurors going hear about a new when the concept” court went from arrest to detention and back to arrest. There have been no oral above, signal subject was but as indicated shifting, the three relevant sections were separated by breaks. The not paragraph jury was aloud, them, restricted to the instructions read hearing but also received said, court that, “in written form.” It therefore is not the case as plaintiff asserts, instruction’s three sentences about lawful were “[t]he detention ... fit into seamlessly instructions on cause.” The seams have probable might been noticeable, made more but were conspicuous, they and we are not convinced that a reasonable would have failed juror to discern them.

4. Later-charged. Offenses Plaintiff contends that the instruction to find erroneously permitted jury his arrest lawful if cause probable existed to arrest for charges ultimately brought against him. He asserts that an arrest must be justified based on the for which based on charges he was arrested or for later the same conduct. The instruction was deficient, contends, he for permitting the arrest to be later justified by offenses that did charged satisfy italicized condition.

The substantive rule on which this argument has been depends rejected the United States Devenpeck Alford Court. In Supreme 146, 537, 543 U.S. 153 L.Ed.2d 125 S.Ct. the court (Devenрeck), [160 588] arrest, held that in a section action 1983 unlawful alleging probable is not confined to the cause invoked the officer inquiry charge by at the time “ ” of the arrest or to related’ ‘closely The court reaffirmed earlier charges. holdings test for cause is an are probable objective one: “Those 780 give officers arresting the facts known to arrested whom

lawfully (Id. 155.) cause to arrest.” probable here it cannot be but contends applied acknowledges holding

Plaintiff rules “constitutional and constitute retroactive application because would ” “ final.’ ‘cases not yet are retroactive as to criminal of procedure” 734, 743, 755 Cal.Rptr.2d Cal.4th Reyes (Quoting People question would 445].) Devenpeck present P.2d But adhering involve a rule of case would not and as in this “retroactivity,” applied “criminal procedure.” cases, into criminal over carry holding Devenpeck may

While with, of, concerned directly question context and was only it arose law, i.e., a cause can state prove whether a section 1983 plaintiff tort officer lacked probable that an establishing arrest wrongful by action for him, crime even officer though announced by to arrest for the cause v. Virginia offense. In Harper to arrest for a different cause possessed probable S.Ct. L.Ed.2d U.S. Taxation 95-97 [125 Dept. of new announcing that decisions 2510], tiie court earlier suggestions repudiated It retroactive effect. limited given law in civil cases rules of federal that “a rule in an earlier decision had justices agreed found that a majority law, controversy, to the parties federal once announced applied federal law.” adjudicating retroactive effect all courts must be full given (1991) 501 U.S. (Id. Co. v. Distilling Georgia James B. Beam citing at p. no rationale for 2439].) Plaintiff offers 111 S.Ct. L.Ed.2d 529 [115 to this instruction his challenge this mandate. Accordingly departing fail. must

Disposition recover his costs appeal. is affirmed. Plaintiff shall The judgment McAdams, J., concurred. both the misconstrues

MIHARA, J., Dissenting. majority opinion issue. of limitations in its of the statute and the law analysis evidence of Palo result, the City erroneously rejects the majority opinion As a claim that the on its it was entitled to prevail contention that Alto’s (City) of limita the statute of action was barred excessive force cause federal was entitled to that the City1 a conclusion analysis requires tions. A correct usually refer to City, but I will defendants in addition are several individual There reference. collectively “City” for ease of them on its statute summary adjudication asserting motion that of

prevail barred limitations Michael Schmidlin’s federal excessive force cause of action, Schmidlin which would have that precluded cause prevailing Therefore, of action. I must dissent. respectfully

I. The of Statute Limitations Issue

A. Preservation of Issue Below Schmidlin argues that failed to the statute City of limitations preserve trial, issue for review on because the issue was not raised at the appeal jury raised the issue its although City in summary adjudication motion and in motion judgment verdict. notwithstanding

1. Background Schmidlin in his that alleged the excessive complaint force occurred on 29, 1997, March time of arrest. He his made no allegations regarding when criminal were filed. Schmidlin’s civil was filed on complaint answer, December 2000. In its City asserted the affirmative defense of the statute of limitations.

The City filed a motion for summary or judgment summary in adjudication which it that argued Schmidlin’s federal excessive force cause action of was barred of statute limitations.2 The City explicitly аddressed the majority motion, opinion motion, The City’s insists that the notice of and separate were inadequate statement because City identify did not adequately the “cause of action” targeted by summary adjudication its motion. The “Seventh Cause of Action” in alleged City’s Schmidlin’s complaint police detained, arrested, officers violated 42 United States Code they “unlawfully section 1983 when him; and imprisoned plaintiff; used against unreasonable and against excessive force [sic] falsely testified in police reports their and court charged so that he would be and convicted of crimes he did not City’s sought commit.” The “summary adjudication” notice of motion Schmidlin’s “Seventh . . . City’s Causes of Action . ...” specified [and other] The motion sought the City summary adjudication of for damages Schmidlin’s “claim under 42 U.S.C. arrest, for deprivation lights, § 1983 ... of federal upon civil based his the use force to him, and alleged arrest police reports testimony prosecute false statements in trial used him.” majority opinion suggests City’s notice of inadequate motion motion were summary to support adjudication of the excessive force claim in Schmidlin’s Seventh Cause of City Action adequately seeking adjudication because did not specify summary that it was the separate of each of causes action that Schmidlin had combined his Seventh Cause of Action. adjudication “A summary granted disposes motion for completely shall if aof action, defense, (Code cause damages, affirmative a claim for an issue duty.” Civ. 437c, Proc., (f)(1), added.) statutory language subd. italics This long has been been 782 had been tolled under Government of whether the limitations period

question not until It that the had been filed April Code section 945.3. noted complaint time, 18, 1997, until that which and therefore the had not tolling begun period a Schmidlin’s civil federal excessive alleging rendered untimely complaint the federal of action. The motion did not address City’s initially force cause fact The statement set out as undisputed law accrual issue. City’s separate criminal the was filed on 1997. that complaint April asserted that his federal City’s Schmidlin’s to the motion opposition barred, not because accrual was delayed excessive force cause of action was was under state law. He under law and a of time tolled federal period the time commenced “from acknowledged tolling period explicitly .” did that criminal were charges are . . . Schmidlin not assert charges filed time to the of the criminal filing before a court at any prior pending statement, admitted that it was undis- In his Schmidlin complaint. ‍​‌​‌‌‌‌​‌​‌​‌​‌‌​​‌​‌‌​​‌​‌​​‌‌‌​​‌‌‌‌‌​‌​‌​​‌‌‌‍separate In the was filed no sooner than 1997.3 April criminal complaint puted motion, de- Schmidlin’s City’s attorney a declaration in opposition “a after he to few weeks police report” clared that had obtain “attempted wrongful are adjudication of and distinct acts which interpreted permit summary “separate saving time cost cause action. To rule otherwise would defeat the and combined in the same of and a cause of of Code of Civil Procedure section allow purposes 437c] of current version [the where, here, separate alleged a entirety proceed to trial even distinct action its may summarily by summary adjudication. party obligation claim be defeated ... [A] wrongful summary adjudication challenging separate a a and distinct motion for present of wrongful alleged other acts in the same cause action.” though act even combined with 1848,1854-1855 (1993) (Lilienthal Cal.App.4th Cal.Rptr.2d Superior Fowler v. Court 12 [16 & 1672, 1688, omitted; accord, 458], (1997) Corp. Superior Cal.App.4th Court 51 fn. Exxon v. 195].) Cal.Rptr.2d 11 fn. [60 Superior opinion Cal.App.3d v. Court majority The relies on Gonzales (Gonzales) City required to be more Cal.Rptr. support its contention was 106] First, two inapt and motion. is reasons. specific in its notice of motion Gonzales summary adjudication, summary no of judgment motion made mention whatsoever Gonzales summary adjudication superior obviously inadequate support the of issues that Gonzales, was so Moreover, 1544.) (Gonzales, at the of California law granted. time court issues, long summary Legislature disposed of adjudication procedure which permitted issues; listing identify specific notice of motion to ago. longer is no reason for a “[T]here action, here, Superior (Sequoia Ins. Co. disputed causes of as was done sufficient.” Court, 888].) rule Cal.Rptr.2d California Rules Cal.App.4th 1478 [16 Court cites, 3.1350(b), of motion or require does not the notice majority opinion which the also action, City’s motion did. anything specify the cause of which the motion do more than subjects of action that were the and motion listed the causes of City’s The notice of motion motion, excessive force identified the federal summary adjudication the motion further City’s of motion and motion were subject It follows notice claim as a of motion. adjudication of federal exces- support summary Schmidlin’s procedurally inadequate to action, notwithstanding that he had combined this cause action the fact sive force cause complaint. single others in a count of his with stamp, It no but it complaint appears in the record. bears file copyA of misdemeanor April indicates that it was drafted on 1997. arrested,” was told that he not obtain it because Mr. Schmidlin but could charges “no had been filed” and it was not clear when or if would filed. law to Schmidlin’s that the federal City’s reply argued opposition

accrual rule relied Schmidlin did not to the federal excessive by upon apply force cause of action.

The court denied the motion for superior City’s summary adjudication the federal excessive force cause of The court not identify action. did superior factual toas this It that any disputes issue.4 would acknowledged “tolling” make civil not the the had timely because arrest occurred on March complaint 29, 1997, the criminal with Schmidlin criminal offenses complaint charging 18, 1997, filed criminal was on the on April were dismissed charges 13, 1999, December and the civil was not filed until December complaint However, 2000. the court Schmidlin’s superior legal argument accepted cause this of action did not accrue the under law until criminal federal dismissed, charges were because time between the and the filing arrest “[t]he of the criminal is not counted . .” the . under federal law accrual complaint rule. brief, its

In trial limitations City the renewed its claim that the statute of the barred federal excessive force cause of action and suggested statute of limitations issue could tried the in court advance of separately However, the jury trial. the record does not reflect that the appellate City issue, and the pursued did not the statute of limitations City issue place motions, before the limine trial. in trial jury During Schmidlin’s counsel stated that the criminal had filed “about month” charges been after Schmidlin’s arrest.

The returned jury verdict in favor of Schmidlin on the special finding federal excessive force cause action the state law cause battery $24,000. action. The determined The jury damages thаt Schmidlin’s were action, award was damage not allocated between the two causes of but it was allocated between the three officers who were found have used excessive force and to have committed who found battery. Trujillo, Officer on the state (because liable law cause of action he had battery qualified $1,500 action), on the cause liable immunity federal was found 4 “Upon summary ground judgment, the denial of a motion for on the there is a triable shall, order, facts, by specify as to one more or oral or issue or material the court written one more material facts raised motion as to the court has determined there exists which controversy. proffered in specifically triable This determination shall refer evidence opposition controversy of and to the which that a triable exists.” support motion indicates Proc., 437c, (Code (g).) Civ. subd. $24,000 fees Officers attorney’s against Schmidlin was awarded damages. (but not Trujillo). Milliken and Martin verdicts, notwith- a motion for brought judgment

After the the City jury’s its contention that (JNOV) in which renewed standing the verdict of limita- of action was barred statute federal excessive force cause on on motion summary adjudication was based its City’s argument tions. motion, did he to the JNOV City’s this issue. In Schmidlin’s opposition was filed when about when an accusatory pleading make assertions a court. pending criminal became before motion, (mis- trial court

At the JNOV hearing expressed had been denied as taken) motion summary adjudication belief of triable issues of issue “based on the existence statute of limitations had not established . . .” The court asserted that the statements separate fact. The court noted that dates than the date of arrest.” the relevant other “any to record,” “limited trial and it asked the counsel City’s was to the trial “the that would that statute “cite to me where that evidence appears” prove in trial “[Tjhere to the something was exceeded here.” has be limitations record, the that contains Court and before jury, that was before the something the talked about during I the date arrest was those dates. And know again, the was on I if the date of filing original trial. don’t recall filed is I the the civil was complaint ultimately record. don’t know if date that then, record, no in I have the . . Because if those dates aren’t the on record. . the determination, no to from a had basis superior basis to make [the court] had been exceeded or to the statute statement determine whether separate not.” that it was an court JNOV motion on the ground

The trial denied the the at jury the had not been before motion where issue placed inappropriate trial.

2. Analysis of limitations raise the statute contends that the cannot City Schmidlin a summary judgment to the denial of on because a challenge issue appeal The City a on the merits. adequately cannot be raised after trial motion by bringing for in case the statute of limitations issue appeal preserved on the issue.5 motion summary adjudication contention that City has disclaimed” its opinion “explicitly that the majority The asserts ante, (Maj. opn., at summary adjudication motion. denying its superior court erred in

the 742.) majority misconstrues the briefs. p. opinion The brief, of motion superior denial its City court’s opening appellate its the asserted In on force cause of action statute adjudication of the federal excessive summary Waller, on supra,

Schmidlin relies his Cal.App.4th support contention that the cannot the City raise statute of limitations issue on appeal. Waller was a after judgment (there roll was no appeal reporter’s transcript) verdict favor in of the lessor in an action for rent due jury plaintiffs unpaid (Waller, 831-832.) under lease. at The lessee defendant’s sole conten- pp. tion on was that the court had in appeal denying erred its superior summary (Waller, 832.) motion. at The judgment defendant had p. sought summary on the that was judgment ground there no of fact that it not dispute was (Waller, the obligated 832.) rent. at pay allegedly unpaid p. summary motion was there judgment denied was a fact as ground dispute to whether were plaintiffs entitled rent under the lease. unpaid (Waller, 832.) roll, at Because the on the p. appeal judgment be judgment was correct and to presumed evidence. supported by (Waller, 832.) at p.

The court concluded that an error in denial of summary judgment could result reversal under these circumstances unless the error prejudiced (Waller, supra, defendant at trial. 833.) at “Since we are Cal.App.4th p. enjoined trial itself was fair and presume verdict evidence, favor was plaintiffs’ we supported by cannot find that an erroneous based pretrial ruling on declarations and exhibits renders (Waller, ultimate result unjust.” 833.) “Our is limited to opinion situations in which moves for the that party summary judgment ground on fact, denied, there is no triable issue of the motion is and the same questions raised the by motion are then decided to the unsuccessful adversely moving after a trial on the merits party which is free itself from error.” prejudicial 836; (Waller, Vine v. accord, Bear Co. Valley Ski (2004) 118 Cal.App.4th 370]; 591 Finance v. Housing Agency Cal.Rptr.3d [13 California Center, Management Accounting & Inc. (2007) 148 Hanover/California 92].) 688 Cal.App.4th Cal.Rptr.3d [56 grounds limitations was It also denying “error.” asserted that the trial court had erred in its JNOV motion. Schmidlin responded contending superior denying that the court’s order TJD, summary adjudication on Waller Inc. relying (1993) “is not v. appealable,” Cal.App.4th 12 (Waller). text, Cal.Rptr.2d 830 As I explain Waller is City [16 in the inapplicable 38] here. The responded argument by claiming appealing this that it was not from the denial of the summary adjudication challenging motion instead “denying but the trial court’s error in JNOV in entering judgment briefing, . In City repeated ...” its the it was supplemental that challenging “denying the entering judgment. court’s error in and in . . .” JNOV readily It is abandoned or disclaimed its contention that apparent City to me that the not has summary the denial of adjudication City, recognizing its was The perhaps motion erroneous. directly it could appeal summary that not from adjudication the denial of a motion and not Waller, wishing argument to rephrase attack chose its as an that court assertion the trial entering judgment, obviously in argument regarding erred incorporating opening its in the brief implicitly asserting entry the nature of the error and judgment that the was erroneous because superior denying summary adjudication the error in the court’s motion. Waller does not here because summary holding apply The limited not denied on the there a triable issue of that was ground adjudication was not litigated and the statute of limitations issue legal fact but on grounds, trier of fact. Under at trial and was not resolved to the adversely City circumstances, motion consti- the denial of a summary judgment these of the after trial. judgment tute error and reversal require prejudicial 1257, 1268-1270, (Gackstetter Frawley Cal.App.4th [38 333].) Cal.Rptr.3d case, the denial its summary

In was prejudiced by City The court’s denial if denial was erroneous. superior motion adjudication but disputed on motion was not based summary of the adjudicatiоn facts City’s legal position. had City rejection court’s superior issue to the jury limitations the statute of nothing gain by presenting its It would not undermined ruling completely because this legal position. under in the favor City’s have for the resolve this issue jury been possible City’s summary adjudication resulted in denial ruling legal hand, had granted summary if court motion. On other superior motion, cause of action would have the federal excessive force adjudication is not City precluded consideration.6 The been removed from jury’s denial of its summary court’s challenge superior mounting appellate limitations issue. motion on the statute of adjudication Retroactivity Issue and B. Federal Accrual held case, Court the United States Supreme oral in this argument After 973, 127 S.Ct. v. Kato U.S. 384 L.Ed.2d Wallace 1091] section under 42 United States Code (Wallace) of a cause action accrual until arrest) delayed for false Wallace (in a cause of action thereafter solicited This court the criminal proceedings. the conclusion of briefs, of Wallace. In his supplemental on the briefing impact supplemental be to case. claims that Wallace cannot applied properly Schmidlin (1971) 404 U.S. 97 L.Ed.2d Oil Co. v. Huson on Chevron Relying [30 In a (Chevron), Schmidlin Wallace is not retroactive. argues S.Ct. 349] brief, and admits that Chevron has been overruled Schmidlin supplemental Chevron is somehow here. overruling inapplicable case argues He is incorrect. action, . the the . . granted, at the trial of summary adjudication is a motion for “If deemed to be granted shall be as the motion which has been defense ... to affirmative remaining.” . of action . . to the cause or causes proceed action shall as

established the Proc., 437c, (n)(l).) (Code subd. Civ. law, rule once of federal announced and the to applied parties

“[A] must be full controversy, retroactive effect all given courts adjudicating law.” (Harper Virginia Taxation federal Dept. of 509 U.S. L.Ed.2d 113 S.Ct. (Harper).) “When United States 2510] [the it, Court rule a of federal law to the rule

Supreme] applies before parties is controlling of federal be full law must interpretation given events, retroactive effect in all cases still on direct review and to all open regardless whether such events or announcement of predate postdate [the] rule.” (Harper, 97.) at “When this Court does not p. ‘reserve the question it,’ however, whether its holding should to the applied before parties a rule of federal law opinion announcing ‘is understood to have properly followed the normal rule retroactive and must be ‘read to application’ hold . . . that its rule should apply retroactively then before litigants ” Clause, the Court.’ (Harper, Const., at 97-98.) “The pp. U.S. Supremacy VI, Art. cl. does not allow federal doctrine to be retroactivity supplanted the invocation of a contrary under law. approach retroactivity state Whatever freedom state courts may enjoy limit retroactive operation law, their own [citation], of state interpretations cannot extend their interpretations 100.) federal law.” (Harper, Harper clear, could not be more and it obviously here. Since applies Wallace therefore also here and sole applies definitively rejects the basis for the federal delayed law accrual rule which Schmidlin upon relied in opposi- motion, tion to the City’s summary adjudication remaining question whether Schmidlin nevertheless was entitled to prevail summary adjudication motion he because there established that were triable issues of fact as to whether his federal force excessive cause of action was filed timely due state law under tolling Government Code section 945.3.

C. State Law Tolling Issue Government Code section 945.3 for the provides statute of tolling limitations in certain civil actions related to criminal cases. “No person indictment, information, charged by or other complaint, accusatory pleading a charging criminal offense civil action for or bring money damages against peace officer or public entity officer based employing peace conduct upon officer peace relating to offense which accused is charged, an act including or omission in investigating reporting while accused, the offense or the charges against or arresting detaining court, the accused are a . pending .. statute of Any applicable [f] before during these actions shall tolled for filing prosecuting limitations Code, . . court."7 a charges pending are period (Gov. . before 945.3, added.) italics § the excessive force had oc- that alleged

Schmidlin’s verified complaint 29, 1997, summary arrested. The City’s March when he was curred on facts. The criminal motion established several undisputed adjudication 18, 1997, with various on Schmidlin charging was filed April complaint dismissed on The criminal were charges ultimately misdemeanor offenses. The filed this action on December 2000. December Schmidlin 1999. year. that limitations is one agree applicable period parties of statute summary [adjudication] “When the defendant moves for the initial burden of production the defendant bears both limitations grounds, (Code that the limitations has period expired. and the burden of persuasion 437c, Proc., ‘initial burden of production [requires subd. Civ. (p)(2).) § of of any the nonexistence showing make facie prima defendant] fact; he causes if he carries burden of production, of material his triable issue shift, of is to a burden of subjected production and the then party opposing of of of a triable issue facie the existence showing his own to make a prima v. Atlantic Co. material fact.’ (Aguilar (2001) 25 Cal.4th Richfield is one that 493].) showing 24 P.3d ‘A facie prima Cal.Rptr.2d [107 ” (County Santa in position party question.’ sufficient to support 292, 316 Co. Clara Atlantic Richfield v. 137 Cal.App.4th [40 313].) Cal.Rptr.3d for, summary judgment moving opposing, parties

“[H]ow on which and/or production depends each their burden carry persuasion Co., Atlantic (Aguilar bear what burden of proof at trial.” would Richfield burden of supra, 851.) While the bore the City proving Cal.4th at p. Schmidlin filed his action had when limitations one-year period expired the limita- Code, 500), Schmidlin bore burden (Evid. proving (State Code section 945.3. was tolled under Government tions period 765, 768 v. Industrial Acc. Com. Cal.App.2d Caifornia to statute burden of exception has proving Cal.Rptr. [plaintiff 138] limitations].) of its summary adjudica- factual showing support

The City’s undisputed limitations its showing one-year satisfied burden of tion motion action force cause of Schmidlin’s federal excessive had expired. period court,” but the version says superior “pending of this statute before The current version arrest, unification, applied where before court effect at the time of Schmidlin’s court. municipal superior pending before a were 29, accrued on March were before a court from Charges 1997. pending April 18, 1997, 13, to December 1999. Schmidlin did not initiate his action until 12, 2000, December than more two weeks after expiration burden, limitations Since the satisfied its the burden shifted to period. City Schmidlin to make a that there was a triable issue of material fact showing that precluded summary adjudication. was tolled from the time of his

Schmidlin asserts that the limitations period arrest, 1, 1997, or no later than until the dismissal of the April charges. limitations is tolled are period only “during charges period before a . . court” pending . after the is an “charged by” “accusatory person ,”8 Code, a criminal pleading charging (Gov. 945.3.) offense . . . In § motion, however, to the response City’s Schmidlin did summary adjudication not produce any evidence that when there was a factual about he was dispute an when charged by “accusatory were pleading” “charges” before “pending a . . . court.” Schmidlin did not assert that criminal were charges pending Indeed, time to the any prior April criminal filing complaint. Schmidlin’s declaration in attorney’s to the motion indi- opposition City’s cated that the April the initiation 1997 criminal complaint represented that, charges. Schmidlin’s attorney declared “a few weeks after arrested,” Mr. Schmidlin was told attorney was that he could not obtain a because “no had charges been police report and it clear when filed” or if would charges (Italics added.) be filed. Because the City met its burden in of its support summary adjudication motion Schmidlin’s did not opposition demonstrate that there were any triable issues of material fact with to the untimeliness of his federal respect action, excessive force cause of was entitled City on its prevail summary adjudication motion.

Although this should be the end of our Schmidlin makes several analysis, new arguments on that he did not raise in his appeal opposition City’s summary adjudication motion or at other time in the court. superior Schmidlin that the time of his argues limitations was tolled from the period arrest because “notice to “had to have been issued to Schmidlin on appear” 29, 1997,” March and a notice to have must been filed with a appear no later magistrate than March that a 1997. notice to Claiming appear an “accusatory within the of Government Code pleading” meaning section 945.3, Schmidlin contends entire between his and the arrest period dismissal of was tolled under Government Code section 945.3. “indictment, information, charged by Schmidlin concedes that he was not com [or] Code, (Gov. 945.3) plaint” prior April 1997. in to the City’s did not raise his notice to theory response Schmidlin appear his change below. “A is not permitted motion summary adjudication party him to do and different on To theory appeal. permit a new adopt position court, to the manifestly unjust unfair to the trial but so would not be only 233, 240-241 (Ernst v. Searle P.2d (1933) 218 Cal. litigant.” [22 opposing (North and trials. to both motions 715].) summary judgment This rule applies 22, Co. Business Park v. Nielsen Construction (1993) 29 Coast Cal.App.4th However, on a of law is 104].) only presented question Cal.Rptr.2d “[i]f [21 the record the change theory may permitted.” the facts appearing 337, 738].) v. Maderis P.2d (1956) 47 Cal.2d (Panopulos [303 when of whether a was issued and notice appear questions if law, but questions notice came before a court are not questions such to the City’s failure to raise this issue below in response fact. Schmidlin’s of the City produce motion summary adjudication deprived opportunity before a court prior issued or was pending evidence that no notice appear 18, It follows that criminal on 1997. filing complaint April new on theory appeal. Schmidlin is precluded adopting fail. The new would theory Even if Schmidlin could raise this appeal, cites in of his evidence in the record that Schmidlin suрport appellate he into on March jail factual is evidence that was booked assertions appellate 30, 1997, 29, He does not cite to any and released from on March 1997. jail before a magistrate a issued or was pending evidence that notice appear Instead, Schmidlin that he draws from relies inferences time. any upon docket was not misdemeanor case. The misdemeanor docket in his criminal on the City’s summary adjudication court when it ruled before superior motion, notice of for judicial but this court has Schmidlin’s granted request the misdemeanor docket.9 $3,000 amount of that a bail bond in the

The misdemeanor docket reflects 1, reference to No other on Schmidlin’s behalf on 1997. April was posted mention of a 1, 1997, docket. There is no in the misdemeanor appears April argues court Schmidlin filing charges. notice to or of appear 1, 1997, $3,000 demonstrates bond was on April fact that a bail posted received by were Schmidlin [sic\ charges against the “documentation of $3,000 “must have been bail amount because the court 1997” by April on the the bail amount listed prebooking since it exceeds magistrate,” set by Code, (Evid. record, judicially docket is noticeable the misdemeanor As court though superior it was not before the (d)), judicial notice of it even and we take subd. 299, 306, (Flatley Mauro Cal.Rptr.3d fn. 2 39 Cal.4th [46 the trial court. court or However, to a material 2].) must be relevant “any judicially matter to be noticed 139 P.3d 415, 422, Lockyer fn. 2 (People v. Shamrock Foods Co. 24 Cal.4th ex rel. issue.” 956].) P.3d Cal.Rptr.2d must have had notice of the

information sheet. He asserts court “[t]he amount, on the crimes if it had notice of the bail since bail based charged.”

Schmidlin’s of inferences under the of his towering weight stack collapses “jail in his raised allegation arbitrarily own complaint verified officials (Italics added.) his bail. . . .” A is bound in a verified allegations party not assert facts in contention complaint may contradictory support (Knoell v. Petrovich the statute of limitations was tolled. 162].) his by 168-169 Schmidlin is bound Cal.App.4th Cal.Rptr.2d verified it must have been a may now assert allegation officials,” than who set the bail amount. magistrate, higher rather “jail To free Schmidlin from the fetters of his verified allegation, majority that, when Schmidlin officials” increased the opinion posits alleged “jail amount, bail he could have been “a commissioner” including duty judge ante, 755-756, 13.) officials.” at fn. While it “jail (Maj. hardly opn., pp. seems likely that Schmidlin’s would have identi- attorney-drafted complaint official[],” fied a or commissioner as a stretch the judge “jail this to attempt meaning Schmidlin’s verified allegation serves no Because purpose. burden shifted to Schmidlin to demonstrate that facie City’s prima he fact, was undermined a triable issue material showing by was obligated to produce evidence in the court to superior his He tolling argument. support made no effort to that burden. to satisfy Schmidlin’s grasping attempts factual issues on are conjure up out of both and time. appeal Exactly place what Schmidlin have meant remain a to may by “jail officials” may mystery but, below, my colleagues, by failing evidence Schmidlin produce deprived City establish evidence who opportunity by undisputed precisely was the bail amount. Schmidlin cannot shift the burden responsible setting least, are, back to the City this inferences that at the point by making very inconsistent with seemingly his verified allegations.10 best, At these documents an inference that a notice to support appear 1, 1997, Code, (See issued no later than Pen. when bаil was April posted. 1269b officials must notice to arrested time [jail give person appearance § discrepancy Schmidlin reasons that the between the total of the bail amounts indicated on ($1,050) prebooking information sheet and the bail amount listed on the misdemeanor total ($3,000) proves magistrate docket that a Like other factual must have set his bail. his assertions, motion, presented City’s City no response this evidence was not so the had opportunity possible explanations discrepancy. to rebut it. There are numerous for the Either erroneous, charges may have one of documents have been or the nature of the changed preparation prebooking after the the bail amounts listed information sheet. And obviously on the that a prebooking information sheet did not include various additional fees required bail bond would have been to cover. and cannot bail].) did not point Schmidlin produce, when releasing person a court. A notice to was filed with to, evidence that this notice to appear soon as filed the officer “as case must be in a misdemeanor appear not the attorney,” “with the will be filing prosecuting but practicable,” court, directed the officer” has attorney previously unless “the prosecuting 853.6, Code, (e).) (Pen. subd. with the magistrate. § file notice of the arrest to decide whether from the time then has days prosecutor with the a formal the notice or filing complaint “initiate prosecution 853.6, Code, (e).) subd. (Pen. . . . .” magistrate directed had reflects that the prosecutor previously in the record

Nothing and the fact with the magistrate, the officer to file a notice appear the arrest of the time of within 25 days filed a formal complaint prosecutor was filed with prosecutor that the notice to appear a conclusion supports rather than with the magistrate. must a notice to assertion that appear

Even if I could Schmidlin’s accept 1, 1997,1 have been before magistrate to would not be able accept a on April constituted an “accusatory pleading” the notice to his claim that appear in this case. The section of Government Code 945.3 meaning within informa- to an that limiting “accusatory pleading” reasons majority opinion “other tion, render the statute’s use of would indictment or complaint an it concludes that Based on this accusatory surplusage. premise, pleading” or citation for a includes a notice to appear accusatory necessarily pleading misdemeanor offense. “accusatory intended for the words that the Legislature

It is inconceivable and a Code section 945.3 in Government meaning to have one pleading” Code, contains no the Government Code in the Penal since meaning different numerous the Penal Code includes while “accusatory definition of pleading” of “accusatory pleading.” elucidate the meaning which define and provisions where Code, and is deals with criminal procedure the Penal which Part criminal words describing meaning would look for ordinarily one indictment, an infor- “include an to “accusatory pleading” pleadings, defines Code, accusation, 691.) No mention is mation, (Pen. and a § complaint.” The Penal Code misdemean- or citation. requires made of a notice to appear Code, 740), and the Penal Code by complaint (Pen. § to be ors prosecuted as the complaint. in a misdemeanor prosecution identifies the “first pleading” not “com- Code, offensе is 949.) for a misdemeanor (Pen. A prosecution § is until complaint statute of limitations purposes “[a] menced” for criminal Code, there are limited Code, the Penal (b).) subd. Under (Pen. filed.” § serve as the may complaint a notice to appear under which circumstances serve as A therefore constitute an notice accusatory pleading. appear in lieu a complaint filed magistrate, “when with only verified complaint’ after the notice to has been filed the officer or appear Code, 853.9, added.) (Pen. (a), with the court. subd. italics prosecutor 18, 1997, The fact that a formal was filed on rebuts the complaint April notion, case, “in lieu that a notice to was filed with appear magistrate of’ formal While it is not for a notice to appear complaint. impossible serve as can it filed “in lieu of’ a do so when complaint, and the of a in this case formal complaint, timely filing complaint disproves Schmidlin’s contention that the notice to an “accusatory served as appear in this case. pleading” to read out of Government Code majority opinion’s analysis attempts

section statutory language 945.3 criminal requiring contained in an that is before a . . . court” for accusatory pleading “pending case, the statute’s Under the facts of this Schmidlin tolling provision apply. failed to his burden of satisfy there were material factual showing with to the Government Code disputes regard section 945.3. application He no evidence that a notice filed produced with court lieu appear of a formal of the formal filing Conse- complaint prior complaint. under Government Code section was insufficient quently, tolling 945.3 render his and the entitled to timely, City was its complaint prevail summary motion and obtain the of Schmidlin’s federal adjudication dismissal excessive force cause of action.

II. Conclusion The court denied the motion for superior erroneously City’s summary federal excessive force cause of action on statute of adjudication view, limitations The would be to direct grounds. remedy, my appropriate the trial court to eliminate that finds for modify judgment portion on the Schmidlin federal cause of action. The award is not damages impacted. $24,000 The awarded not allocated jury which was between damages, federal and found state causes of action. The fact was liable Trujillo $1,500 in that the were not attributable to the damages solely proves damages federal cause of action. And there no reason to believe that the jury was would have found that Schmidlin suffered different from the exces- damages sive force than he did from the The two causes of action were based battery. the same did to allocate acts. The City request jury required even award between the federal and state causes of action damages it was aware that the two were the statute of though distinguished by limitations issue that affected the federal cause of action. Under the circumstances, the award must be viewed as attributable to the fully damages law state cause of action.11 2, 2008,

On above. was modified to read as January opinion printed of defendants and for review the Court ‍​‌​‌‌‌‌​‌​‌​‌​‌‌​​‌​‌‌​​‌​‌​​‌‌‌​​‌‌‌‌‌​‌​‌​​‌‌‌‍petition Supreme appellants J., Moreno, denied March S159954. did not therein. participate action, have on his federal cause of he should Since Schmidlin should not succeeded attorney’s City separate appeal filed a have been entitled to an fees award. award, attorney’s fees and I also dissent in that case.

Case Details

Case Name: Schmidlin v. City of Palo Alto

Court Name: California Court of Appeal

Date Published: Jan 2, 2008

Citation: 69 Cal. Rptr. 3d 365

Docket Number: H026841

Court Abbreviation: Cal. Ct. App.