Padilla v. Walgreen Co.
Filed 11/25/13
Padilla v. Walgreen Co. CA2/8
PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
CHAD
PADILLA,
Plaintiff and Appellant,
v.
WALGREEN COMPANY et al.,
Defendants and Respondents.
B244834
(Los Angeles
County
Super. Ct.
No. BC 456804)
APPEAL from
a judgment and order of the Superior Court for the County
of Los
Angeles. Teresa
Sanchez-Gordon, Judge. Affirmed.
Chad
Padilla, in pro. per., for Plaintiff and Appellant.
McCurdy
& Leibl, Loren S. Leibl, Michael Miretsky and Lee M. Moulin for Defendants
and Respondents Walgreen Company and Rouehna Bono.
Law Offices
of Scott C. Haith, Scott C. Haith, Terri R. Brown and D. Michael Lyden for
Defendants and Respondents City of West Hollywood and Bonnie Smith.
Collins
Collins Muir + Stewart, Eric Brown, Tomas A. Guterres and Kevin Engelien for
Defendants and Respondents County of Los Angeles and Michael Berbiar.
________________________________
This appeal
presents two issues: whether summary
judgment for defendants County of Los Angeles and Detective Michael Berbiar
(county defendants) was proper based on plaintiff Chad Padilla’s failure to
comply with the Government Claims Act (Gov. Code, § 810 et seq.), and whether
the trial court properly granted terminating sanctions based on plaintiff’s
presentation of false declarations to the court, resulting in dismissal of
plaintiff’s claims against all defendants.
Defendants City
of West Hollywood and Bonnie Smith (West
Hollywood defendants) also ask us to impose sanctions against
plaintiff payable to the clerk of this court for taking a frivolous appeal.
We affirm
the judgment, but decline to consider the imposition of sanctions against
plaintiff.
FACTS
On October 5, 2010, plaintiff was
arrested and his home in West Hollywood was searched,
pursuant to a search warrant, in
connection with an investigation of “coupon fraud.†(Plaintiff had previously been arrested on
commercial burglary charges based on the purchase of merchandise at a Walgreen
store in El Segundo using allegedly fraudulent coupons. That matter was resolved on December 1, 2010, when plaintiff was
“given a diversion . . . in exchange for three days of community service.â€) Plaintiff says that he was harassed by the
county during the period after December
1, 2010, and that the search of his home resulted in the seizure of
computers, coupons, and other property that was not returned to him until he
obtained an order for its return on March 29,
2011.
On March 11, 2011, plaintiff filed a
claim for damages with defendant Los Angeles
County under Government Code section
911, stating the following basis of liability against the county defendants:
“Plaintiff was thrown in
jail for a period of 36 hours for using what the West Hollywood Sheriff’s
Department claimed were fraudulent coupons.
As a result of these preposterous allegations, Plaintiff was humiliated
in front of my neighbors, and other residents of the City of West
Hollywood.
Plaintiff was also defamed and suffered severe emotional distress. Lastly Plaintiff had a seizure while he was in
jail because of all the stress of being arrested.â€
Plaintiff’s claim identified the “date and time of incidentâ€
as “October 5, 2010-October
6, 2010 at approximately 6:00 a.m. for
a period of thirty six hours.â€
Plaintiff
then filed separate lawsuits against county defendants, West
Hollywood defendants, and Walgreen Company and its employee Rouehna
Bono (Walgreen). The complaints are not
in the appellate record, but it appears the cases were consolidated (along with
similar complaints filed by plaintiff’s domestic partner, Michael Harzinski),
and a first amended complaint (also not in the record) was filed in May 2011. Plaintiff alleged a single cause of action
for intentional infliction of emotional distress against the West
Hollywood defendants, relating to the county’s investigation of
coupon fraud, and a cause of action for defamation against defendant Walgreen,
claiming Walgreen employees made defamatory statements and posted defamatory
fliers about plaintiff in Los Angeles
area Walgreen stores.
Plaintiff conceded the county
defendants were immune from liability for their actions on October 5 and 6 and
during their subsequent investigation of his alleged coupon fraud. But he asserted he was harassed by the county
(and says that was “the main contention in [his] complaintâ€) after December 1, 2010, at which time he
says there was no ongoing criminal investigation (and therefore no immunity
from suit).
The county defendants
sought summary judgment, on the ground the allegations of plaintiff’s first
amended complaint varied significantly from the basis of liability stated in his
government claim. The court granted
summary judgment to the county defendants on June 5, 2012. In
its written order filed August 24, 2012, the court observed plaintiff’s government
claim stated he was harmed by a wrongful arrest (on October 5 at his apartment)
and detention that ended the following day, while his lawsuit alleged he was
harmed as a result of actions taken by the county defendants after December 2,
2010, at various locations throughout the City of West Hollywood “that were not
in connection to an ongoing criminal investigation.†The court further noted that plaintiff
conceded county defendants were immune from liability for their actions on
October 5 and 6. The trial court
concluded that the facts on which plaintiff based his cause of action for
intentional infliction of emotional distress were not fairly reflected in his
government claim, and his complaint was subject to dismissal.
Meanwhile, on
May 25, 2012, the West
Hollywood defendants filed a motion in limine for terminating
sanctions, and the county defendants and Walgreen joined in that motion. Defendants asserted, among other things, that
in opposition to the county defendants’ motion for summary judgment, plaintiff
submitted forged declarations from Michael and Norma Van Arsdale. These forged declarations stated that the Van
Arsdales had witnessed certain harassing conduct by the county sheriff’s
department in the summer of 2011, when in fact they did not witness the events
and had never been to California. Defendant Walgreen further asserted plaintiff
forged the declaration of a third witness, Yngrid Padilla, plaintiff’s sister,
in connection with his defamation claim.
The county
defendants sought and obtained commissions for out-of-state depositions of the
Van Arsdales. All three witnesses were
deposed, and all confirmed the declarations plaintiff had submitted were forged
and the information in them was false. Norma Van Arsdale also testified that
plaintiff asked her “to disappear for a while†so that she could not be
subpoenaed.
On
September 13, 2012, the county defendants obtained an award of attorney fees of
$171,900 against plaintiff. The court
found plaintiff was aware of the county’s immunity, and chose to pursue
different claims than in his government claim instead of dismissing his
claims. In addition, the court found
plaintiff’s abuse of the discovery process “further bolsters the fact the
action was not maintained in good faith . . . .†(See Code Civ. Proc., § 1038, subd. (a) [in civil
proceedings under the Government Claims Act, “[i]f the court should determine
that the proceeding was not brought in good faith and with reasonable cause, .
. . the court shall render judgment in favor of [the party opposing the
proceeding] in the amount of all reasonable and necessary defense costsâ€].)
A month later, the trial court
granted the motion for terminating sanctions, striking plaintiff’s complaints
against all defendants. At the hearing,
the court, after citing case authorities for the court’s inherent power to
impose terminating sanctions, said:
“This is such a case. Plaintiffs initially represented to the court
that they had evidence supporting their case in audio and video
recordings. When the recordings were to
be produced in February 2012, plaintiffs represented to the court that a third
party assisting them with their electronic devices had deleted the recordings. At that time, there was no evidence of fraud .
. . .
“In opposition to the summary
judgment motions, plaintiffs submitted the declaration of Michael Van Annsdale
and Norma Van Annsdale, signed in Louisiana, and the declaration of Yngrid
Padilla signed in Florida. The
declarations described incidents supporting plaintiffs’ allegations in their
complaints.
“Depositions of these witnesses
reveal that they did not sign the declarations[,] that they gave no one
authority to sign declarations on their behalf, and that they had no personal
knowledge relevant to the action and had not been in the State of California at
the relevant time.
“Plaintiffs’ arguments that these
witnesses had been coerced to change their testimony are not credible. Yngrid Padilla purportedly changed her
testimony, because she had worked at Walgreen’s in the past and would like to
work there in the future. It is unlikely
that truthful testimony in a California action would damage her application to
Walgreen’s at some unspecified time in the future. The remaining defendants . . . have no reach
into Florida to damage her, and she has no contact with California.
“Similarly, the defendants would
not have the capacity of harming the Van Arsdales in Louisiana, and they have
no regular contact with California.
Making such threats could lead to serious disciplinary action against
the attorneys who purportedly harassed the witnesses. It is not credible that the attorneys would
engage in such conduct, risking their careers as this is not a big case. It makes no ground-breaking law and does not
involve large sums of money.
“Additionally, the declarations
were signed by Michael Van Annsdale and Norma Van Annsdale, when their names
are actually Michael Van Arsdale and Norma Van Arsdale. It is very unlikely that they would not only
not notice . . . that their names were misspelled, but would have signed an
incorrect name.
“Viewing the depositions, it is
clear that these witnesses were not in California at the time of the incidents
giving rise to these actions. . . .
[T]hey were unaware of these actions and their purported role in these
actions until contacted by defendants’ attorneys.
“There is additional evidence that
plaintiffs advised witnesses they named to avoid service of subpoena and not to
respond to defendants’ attempt to contact them.
Other witnesses failed to attend their deposition . . . . Most disturbing, plaintiff maintained that
Yngrid Padilla and the Van Arsdales were . . . witnesses who were intimidated
into changing their testimony.
“In this case, plaintiffs have
listed witnesses who were not even in the State and submitted declarations,
which were clearly both false and forged.
Evidence, witnesses and testimony produced by plaintiffs cannot be
trusted as they have engaged in such egregious conduct. Instead of showing remorse for such actions,
plaintiff continued to maintain that they have evidence, witnesses and
testimony to support their case. But
because of the outside forces, evidence has disappeared and witnesses have
changed their testimony. Terminating
sanctions granted.â€
The court
ordered the case against all defendants dismissed on October 16, 2012, and judgment
in favor of the county defendants was entered on October 31, 2012. Plaintiff filed a
DISCUSSION
Failure
to Comply With the Government Claims Act
The substance of plaintiff’s argument
seems to be that he complied with the Government Claims Act because all of his
claims “stem from the October 5, 2010 incident†when his “home was raided . . .
and . . . property confiscated for committing purported coupon fraud.†He says that his property was “wrongfully
withheld post December 1, 2010,†and he is “seeking redress for the unlawful
seizure of his property from December 1, 2010 to the date it was returned on
March 30, 2011 . . . .†(He also says
that the “main contention†in his complaint is that he was harassed by the
county defendants.) Plaintiff contends the
county in its demurrers to his complaint “unequivocally admitted†that plaintiff
complied with the Government Claims Act, and that judicial estoppel applies to
prevent the county from taking contradictory positions in the same
proceeding.
We reject plaintiff’s contention
for multiple reasons.
First, the county’s demurrers are
not in the record, so we cannot assess plaintiff’s assertions. But in a demurrer, the demurring defendant
admits nothing; the plaintiff’s allegations are assumed to be true. And, even if the county defendants had taken
an inconsistent position, judicial estoppel would not apply, as the county’s
demurrers did not succeed. (See
& Metal Works Co., Inc. (2005) 36 Cal.4th 412, 422 [judicial estoppel
applies when, among other things, the same party has taken two positions in
judicial proceedings, the two positions are “totally inconsistent,†and the
party was successful in asserting the first position].) Moreover, judicial estoppel is an equitable
doctrine and “its application, even where all necessary elements are present,
is discretionary.†(Ibid.)
Second, the pertinent question is
whether plaintiff’s complaint “ ‘allege[d] a factual basis for recovery which
is not fairly reflected in the written claim.’ [Citation.]â€
(Stockett v. Association of Cal.
Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 447 (
Under the Government Claims Act,
each cause of action in a complaint against a public entity must be “presented
by a claim complying with [Government Code] section 910,†and section 910 “requires
the claimant to state the ‘date, place and other circumstances of the
occurrence or transaction which gave rise to the claim asserted.’ †(Stockett,
supra, 34 Cal.4th at p. 447, quoting § 910, subd. (c).) “If the claim is rejected and the plaintiff
ultimately files a complaint against the public entity, the facts underlying
each cause of action in the complaint must have been fairly reflected in a
timely claim.†(Stockett, at p. 447.)
While the claim “need not specify
each particular act or omission later proven to have caused the injury,†the
complaint may not be based on an “ ‘entirely different set of facts.’
[Citation.]†(Stockett, supra, 34 Cal.4th at p. 447.) “Only where there has been a ‘complete shift
in allegations, usually involving an effort to premise civil liability on acts
or omissions committed at different times or by different persons than those
described in the claim’ have courts generally found the complaint barred.†(Ibid.)
Here, plaintiff’s government claim
stated he was harmed by a wrongful arrest (on October 5 at his apartment) and
detention that ended the following day.
As the trial court stated, however, plaintiff’s lawsuit “seeks money or
damages as a result of actions taken by the County Defendants after December 2,
2010 at various locations throughout the city of West Hollywood that were not
in connection to an ongoing criminal investigation.†Thus, plaintiff clearly made a “ ‘complete
shift in allegations,’ †attempting to premise the county’s liability for
intentional infliction of emotional distress “on acts or omissions committed at
different times . . . than those described in [plaintiff’s government]
claim.†(Stockett, supra, 34 Cal.4th at p. 447.) In short, we agree with the trial court’s
conclusion that “the facts upon which [plaintiff] bases his cause of action for
intentional infliction of emotional distress are not fairly reflected within
his Government Claim . . . .†Consequently,
summary judgment for the county defendants was proper.
In his reply brief, plaintiff for
the first time argues that this court should construe his appeal to include a
challenge to the award of attorney fees to the county defendants. We do not consider contentions raised for the
first time in a reply brief. (
Cal.App.4th 307, 322 [“We do not entertain issues raised for the first time in
a reply brief, in the absence of a showing of good cause why such issues were
not raised in the opening brief.â€].)
Plaintiff made no showing of good cause, and so we disregard the
issue. (Ibid.)
2.
The
Terminating Sanctions
Plaintiff contends the trial court
abused its discretion when it granted terminating sanctions. We
disagree.
“[W]hen a plaintiff’s deliberate
and egregious misconduct makes any sanction other than dismissal inadequate to
ensure a fair trial, the trial court has inherent power to impose a terminating
sanction.†(Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th
736, 740 (Slesinger).) “The decision whether to exercise the
inherent power to dismiss requires consideration of all relevant circumstances,
including the nature of the misconduct (which must be deliberate and egregious,
but may or may not violate a prior court order), the strong preference for
adjudicating claims on the merits, the integrity of the court as an institution
of justice, the effect of the misconduct on a fair resolution of the case, and
the availability of other sanctions to cure the harm. . . . We do not attempt to catalogue all the factors
that must be considered in any particular case, except to emphasize that
dismissal is always a drastic remedy to be employed only in the
rarest of circumstances. We also do not
attempt to catalogue the types of misconduct necessary to justify an exercise
of the inherent power to dismiss, because ‘corrupt intent knows no stylistic
boundaries.’ †(
omitted.)
In considering whether the trial
court properly exercised its inherent power to dismiss a case for misconduct,
our review is for abuse of discretion. (
765.) “We view the entire record in the
light most favorable to the court’s ruling, and draw all reasonable inferences
in support of it. [Citation.] We also defer to the trial court’s
credibility determinations.
[Citation.] The trial court’s decision
will be reversed only ‘for manifest abuse exceeding the bounds of reason.’
[Citation.]†(Ibid.)
In this case, plaintiff claims the
court did not consider “all relevant circumstances†(Slesinger, supra, 155
Cal.App.4th at p. 764), but rather, abused its discretion and violated due
process of law by “ignor[ing] and disregard[ing]†evidence proving that his
sister and the Van Arsdales “lied†and “knew everything†about the facts of
this case before they spoke to county defendants about the case. This contention is meritless. There is nothing in the record to suggest the
court did not consider all the evidence properly submitted, and questions of
credibility are for the trial court, not this court. (Id. at
p. 765.) In any event, our review of the
record confirms that the evidence plaintiff cites – an email from his sister
and excerpts from the depositions of the three witnesses – contain no material
inconsistencies. In short, it is clear from
their testimony that plaintiff presented forged and fabricated declarations to
the court, advised witnesses to avoid service of subpoena and not to respond to
defendants’ attempt to contact them, and falsely maintained the witnesses were
intimidated by defendants into changing their testimony.
We can find no abuse of discretion
in the court’s finding that plaintiff’s conduct was sufficiently egregious to
merit striking his complaint and dismissing his case. Plaintiff’s conduct was “deliberate and
egregious,†and is surely an offense to “the integrity of the court as an
institution of justice.†(
witnesses and testimony produced by plaintiffs cannot be trusted as they have
engaged in such egregious conduct.
Instead of showing remorse for such actions, plaintiff continued to
maintain that they have evidence, witnesses and testimony to support their
case.†This misconduct met the standard
set in Slesinger:
and egregious misconduct [that] makes any sanction other than dismissal
inadequate to ensure a fair trial . . . .â€
(Id. at p. 740.) Accordingly, the trial court did not abuse
its discretion in dismissing the case.
Motion
for Sanctions
The West Hollywood defendants ask
us to impose sanctions payable to the clerk of the court under California Rules
of Court, rule 8.276(a)(1) and (2) (authorizing a Court of Appeal to impose
sanctions on a party or attorney for “[t]aking a frivolous appeal or appealing
solely to cause delay†and for “[i]ncluding in the record any matter not
reasonably material to the appeal’s determinationâ€). “The court must give notice in writing if it
is considering imposing sanctions.†(Rule
8.276(c).) We decline to exercise our discretion
to consider the imposition of sanctions in this case.
The judgment
and order of dismissal are affirmed. The
motion for sanctions is denied.
Defendants shall recover their costs on appeal.
GRIMES,
J.
We concur:
BIGELOW, P. J.
FLIER, J.
plaintiff appealed from the order granting summary judgment (entered October 16,
2012) rather than from the judgment (entered October 31, 2012), and that an
order granting summary judgment is not appealable. We will treat the appeal as having been taken
from the subsequent judgment. (
174 Cal.App.3d 384, 387, fn. 1.)
should be dismissed as procedurally defective because plaintiff’s opening brief
does not cite record references as to “where evidence appears that the trial
court abused its discretion†in granting terminating sanctions. But plaintiff does cite evidence he asserts
shows an abuse of discretion. In fact,
it does not, but that is a matter of substance, not procedure.
