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Hernandez v. City of Pomona

May 28, 2009


Ct.App. 2/7 B182437 Los Angeles County Super. Ct. No. KC043657 Judge: R. Bruce Minto.

The opinion of the court was delivered by: Chin, J.

We granted review in this case to consider the following question: When a federal court enters judgment in favor of the defendants on a civil rights claim brought under 42 United States Code section 1983 (section 1983), in which the plaintiffs seek damages for police use of deadly and constitutionally excessive force in pursuing a suspect, and the court then dismisses a supplemental state law wrongful death claim arising out of the same incident, what, if any, preclusive effect does the judgment have in a subsequent state court wrongful death action? Based on principles of issue preclusion (collateral estoppel), the Court of Appeal held in this case that the federal judgment precludes plaintiffs from recovering on the theory that the police officers failed to exercise reasonable care in using deadly force, but does not preclude plaintiffs from recovering on the theory that the officers failed to exercise reasonable care in creating, through their preshooting conduct, a situation in which it was reasonable for them to use deadly force. The Court of Appeal therefore reversed the judgment that the trial court entered for the officers and their employer based on the federal judgment. As explained below, we hold that on the record and conceded facts here, the federal judgment collaterally estops plaintiffs from pursuing their wrongful death claim, even on the theory that the officers‟ preshooting conduct was negligent. We therefore reverse the Court of Appeal‟s judgment.


Before dawn on January 16, 2001, City of Pomona (Pomona) Police Officer Dennis Cooper was patrolling a neighborhood in a marked black-and-white police vehicle when he saw a gray Ford Thunderbird approach from the other direction with its headlights unilluminated. The Thunderbird abruptly pulled over to the curb and stopped with its engine running. Cooper engaged his overhead lights and pulled his car to within about 10 feet of the stopped Thunderbird, facing it. He saw two individuals inside the Thunderbird and ordered them to exit. The driver complied, putting up his hands, opening his door, and exiting. The passenger, decedent George Hernandez, did not comply. Instead, he slid into the vacant driver‟s seat and, with the headlights unilluminated, drove off in the direction from which the Thunderbird had come.

Cooper began pursuing Hernandez in the car. Officers Humberto Sanchez, Anthony Luna, Robert Devee and Edgar Padilla joined the pursuit in other police vehicles, including a K-9 unit driven by Luna. Hernandez led the officers on a high-speed chase through city streets that lasted about 18 minutes and ended when Hernandez crashed and the car came to rest in the middle of the street.

After crashing, Hernandez exited his car and started running away. Cooper, followed closely by Sanchez, pursued Hernandez on foot. Eventually, Hernandez slowed down and stopped. According to one witness, Hernandez, with his back to Cooper, lifted his shirt to expose his waistline and, while turning around, yelled that he did not have a gun. According to Cooper, Hernandez, after reaching toward his front right pocket, spun towards him yelling, "I got a gun, I got a gun." Startled, Cooper reached for his weapon, but discovered he had lost it. He spun around, covered his head, and ran away screaming to Sanchez: "Shoot him. Shoot him, Bert. He‟s got a gun. He‟s going to kill me." As Cooper ran, he broadcast over his radio that Hernandez had brandished a firearm. Hearing Cooper, Luna released the police dog and, with Devee and Padilla, joined the foot pursuit.

Hernandez spun around and started running away again. Sanchez, who was now leading the chase, had an open shot at Hernandez, but decided not to take it because Hernandez was facing away and did not pose an immediate threat. Instead, Sanchez chased Hernandez, yelling at him to stop. He was followed by the other officers, including Cooper, who had rejoined the pursuit after finding his weapon.

Ignoring Sanchez‟s order to stop, Hernandez kept running and fled around the corner of a building. The police dog passed Sanchez as they rounded the corner of the building, caught up to Hernandez, struck him in the shoulder, and spun him around. According to Sanchez, as the dog was striking Hernandez, Hernandez reached towards his waistband, yelling either "I got a gun" or "Gun." In response, Sanchez fired his weapon at Hernandez. As the other officers rounded the corner of the building, they heard shots and assumed Sanchez was in a gun battle with Hernandez. All but Padilla fired at Hernandez. The officers fired 37 shots in all, hitting Hernandez 22 times and killing him. Hernandez was unarmed.*fn2

In September 2001, Hernandez‟s parents, both individually and as administrators of his estate, and his seven minor children, by and through their guardians ad litem (collectively, plaintiffs), filed a complaint in federal court seeking damages in connection with his death. As here relevant, the complaint asserted a section 1983 claim against the officers, alleging they had violated Hernandez‟s rights under "the Fourth and Fourteenth Amendments of the United States Constitution[] to be free from unreasonable seizures and excessive force by police officers." The complaint also asserted a section 1983 claim against Pomona, alleging in part that it was liable for the officers‟ actions because it (1) "maintained a system of grossly inadequate training pertaining to the use of firearms" and "the proper tactics for managing scenarios involving mentally unstable, emotionally distraught and otherwise psychologically incapacitated persons," and (2) "[a]t the time of the shooting . . . had in place, and had ratified, policies, procedures, customs and practices of" its police department that "permitted and encouraged their officers and officials to unjustifiably, unreasonably and in violation of the Fourth Amendment[], shoot unarmed suspects and specifically individuals of Mexican ancestry, Hispanics, Latinos, as well as members of other minority groups." The complaint also included a wrongful death claim under California law, which alleged that the officers had acted "negligently, violently and without due care," "cause or provocation" in killing Hernandez; that the shooting had "occurred as a result of the absence of due care for the safety of others and constituted an unreasonable, unwarranted, and excessive use of force"; and that Pomona had "failed to adequately train, supervise, discipline or in any other way control" the officers "in the exercise of their unlawful use of excessive and lethal force" and, by "knowingly and negligently fail[ing] to enforce [California] laws" and police "regulations," had "creat[ed]" in the police department "an atmosphere of lawlessness in which [p]olice officers employ excessive and illegal force and violence . . . in the belief that such acts will be condoned and justified by their supervisors."*fn3

The federal district court bifurcated the state and federal claims and only the latter went to trial. By special verdict, the jury found that Cooper, Devee and Luna had not "violate[d]" Hernandez‟s "Fourth and Fourteenth Amendment rights by using excessive force against him." The jury could not reach a verdict regarding Sanchez.*fn4 Sanchez then moved for judgment as a matter of law, based on qualified immunity. The court granted the motion, finding that because Sanchez‟s "use of deadly force was reasonable under the circumstances," he "did not violate Hernandez‟s Fourth Amendment rights." The court reasoned: "Faced with a fleeing suspect that he reasonably believed to be armed and likely to fight back, given Cooper‟s screams that Hernandez was about to shoot him and that he had bran[d]ished a firearm, Officer Sanchez found himself in a situation that he reasonably believed would threaten his life if he did not act immediately. . . . To hold [that his use of deadly force was not reasonable under the circumstances] would force Officer Sanchez to risk looking down the muzzle of a barrel before he could act to protect himself." The court alternatively held that "even assuming Officer Sanchez had violated Hernandez‟s Fourth Amendment rights," he "is entitled to qualified immunity" because he "was not plainly incompetent," he did not "knowingly violate the law," and he "reasonably could have believed that his conduct was lawful under the circumstances."*fn5

Based on its order granting Sanchez‟s motion and the jury‟s verdict in favor of the other officers, the federal court ordered that all "[d]efendants shall have judgment on their claims for excessive force under the Fourth and Fourteenth Amendments." A few days later, it "dismisse[d] without prejudice all of Plaintiffs‟ remaining state law claims," explaining that it was "declin[ing] to exercise supplemental jurisdiction over" those claims inasmuch as "the [federal] claims over which it ha[d] original jurisdiction [had been] dismissed."

Plaintiffs then filed this action in the superior court against the same defendants. As here relevant, the complaint included a wrongful death claim based on the same allegations plaintiffs had set forth in the wrongful death claim of their federal complaint.*fn6

Defendants demurred to the complaint, arguing in relevant part that the federal proceedings "bar the instant action on the grounds of collateral estoppel." They asserted that in the federal action, the issue of excessive and unreasonable force had been determined in their favor, and that this determination "collaterally estop[s]" plaintiffs "from raising" their wrongful death claim. In opposing the demurrer, plaintiffs argued that collateral estoppel does not apply because "reasonableness" for purposes of a section 1983 claim is not the same as "reasonableness" under state negligence law.

The trial court agreed with defendants in part, explaining: "[D]efendants have had a factual finding by [j]udge or [j]ury in their favor that excessive force was not used in the shooting, i.e., [t]hat the deadly force used was "objectively reasonable‟ under the circumstances. Therefore, this issue is res judicata, and collateral estoppel precludes relitigation of this same issue in this action." The court overruled the demurrer, however, because it concluded that the federal court judgment did not preclude plaintiffs from recovering on the theory that defendants failed to summon medical aid and prevented aid from being rendered once available. The court explained: "Although such allegations were contained in those causes of action tried in [f]ederal [c]ourt, no specific findings were made on such issues, and the [federal judgment is] not res judicata."

Plaintiffs, to expedite their appeal from the trial court‟s ruling that the federal judgment precluded them from proceeding on their allegations that defendants acted unreasonably in shooting Hernandez, agreed to "strike and dismiss, with prejudice," their wrongful death claim insofar as it was based on allegations that defendants failed to summon, and prevented the rendering of, medical aid. Based on this agreement, the parties asked the court to enter final judgment. The court granted the request, dismissed the wrongful death claim with prejudice, and entered judgment in favor of all defendants.*fn7

The Court of Appeal reversed the judgment. Based on principles of collateral estoppel, it first held that the federal judgment precludes plaintiffs from recovering on the theory that the officers failed to exercise reasonable care in using deadly force, explaining that "[w]hether the officers acted with reasonable care is precisely the issue resolved by the federal jury and the trial court when each specifically concluded from the perspective of a reasonable officer on the scene, taking into account the facts and circumstances confronting them, the officers‟ conduct was objectively reasonable." It then held, however, that plaintiffs could proceed on the theory that the officers failed to use reasonable care in creating, through their preshooting conduct, a situation in which it was reasonable for them to use deadly force. The court reasoned that neither the jury‟s special verdict nor the federal court‟s posttrial ruling regarding Sanchez addressed this issue. After expressing "doubt" that plaintiffs‟ complaint adequately alleged a pre-seizure negligence theory of liability, the Court of Appeal reversed the trial court‟s judgment and remanded the cause to permit plaintiffs to file an amended complaint alleging that theory.*fn8

We then granted defendants‟ petition for review.


"Collateral estoppel precludes relitigation of issues argued and decided in prior proceedings. [Citation.] Traditionally, we have applied the doctrine only if several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. [Citations.]" (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341, fn. omitted (Lucido).)

Of these elements, the only one here in dispute is the first: whether the issues as to which defendants assert preclusion are identical to issues decided in the earlier federal court proceeding involving plaintiffs‟ section 1983 claim. As previously noted, the Court of Appeal found this requirement satisfied insofar as plaintiffs now allege that the officers failed to exercise reasonable care in using deadly force, but not insofar as plaintiffs might allege that the officers failed to exercise reasonable care in creating, through their preshooting conduct, a situation in which it was reasonable for them to use deadly force. Plaintiffs challenge the former finding and defendants challenge the latter.

For purposes of collateral estoppel, an issue was actually litigated in a prior proceeding if it was properly raised, submitted for determination, and determined in that proceeding. (People v. Sims (1982) 32 Cal.3d 468, 484.) In considering whether these criteria have been met, courts look carefully at the entire record from the prior proceeding, including the pleadings, the evidence, the jury instructions, and any special jury findings or verdicts. (Turner v. Arkansas (1972) 407 U.S. 366, 368-369; Clark v. Lesher (1956) 46 Cal.2d 874, 880-881; Murphy v. Murphy (2008) 164 Cal.App.4th 376, 400-401; U.S. v. Cala (2d Cir. 1975) 521 F.2d 605, 607-608; In re Henicheck (Bankr. E.D.Va. 1995) 186 B.R. 211, 215.) "The "identical issue‟ requirement addresses ...

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