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Cardenas v. Whittemore

United States District Court, S.D. California

September 12, 2014

JOSEPH CARDENAS, et al., Plaintiff,


LARRY ALAN BURNS, District Judge.


On February 13, 2013, the Court reached its verdict in Cardenas v. Whittemore, 10cv1808-LAB-KSC ("Prior Action"), in which Plaintiffs sought relief for trespass. The Court determined an injunction was unnecessary, and nominal damages were appropriate.

According to the Complaint, on the night of February 13, after the oral verdict was issued, Whittemore ("Defendant") trespassed on Plaintiffs' property, and rang the doorbell then fled before it was answered. He repeated this action eight times throughout the night. Plaintiffs' handyman claims that he saw Defendant taking photographs of Plaintiffs' property on June 29, and on this same night Defendant rang the doorbell twice more. Plaintiffs also allege that Defendant has been taking other photographs of Plaintiffs' property, with the intention of depriving them of the quiet use and enjoyment of their property.

Around the same time, Plaintiffs sought and received a Temporary Restraining Order from the San Diego Superior Court. Defendant claims that the parties made an agreement in settlement of this restraining order claim on June 19, under which Defendant would orient his lights so they did not bother Plaintiffs, and also cease photography of Plaintiffs' property. In the present action, Plaintiffs sued for damages and an injunction based on claims of trespass to real property and private nuisance.


Defendant has moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), claiming that (1) the present action is barred by either res judicata or collateral estoppel, because the claims were either previously adjudicated in the Prior Action, or Plaintiffs could have adjudicated them; (2) Defendant's alleged photography is privileged conduct related to litigation, and therefore not actionable; (3) the Temporary Restraining Order Plaintiffs requested constitutes a state action that shouldn't be overruled by federal action; and (4) Plaintiffs' tort claims are barred because they have the option to seek a contractual remedy, based on the contract made on June 19. Plaintiffs moved to strike evidence submitted in support of the motion.

Motion to Dismiss: Collateral Estoppel and Res Judicata

Defendant points out that final judgment was entered on March 11, 2013, and the alleged offending conduct took place before that. While true, this is beside the point. The Court announced its verdict on February 13, 2013, and Plaintiffs could not have amended their complaint to bring a new claim or to augment their existing claim based on later events. See Kronkright v. Gardner, 31 Cal.App.3d 214, 217 (Cal.App. 2 Dist. 1973) (holding that a "prior judgment is res judicata on matters which were raised or could have been raised, on matters litigated or litigable"); Bridgeford v. P. Health Corp., 202 Cal.App.4th 1034, 1042-43 (Cal.App. 2 Dist. 2012) (citing authority concerning collateral estoppel).

While the omplaint mentions Defendant's earlier actions, it does so in an effort to put the facts of this litigation into a logical historical context, and to urge the Court to balance the equities in their favor. The Complaint disclaims any remedy based on events that were the subject of the Prior Action. (Compl., ΒΆΒΆ 19-20.)

It should be noted that the Court, in its Order of Judgment against Defendant on March 11, specifically noted that the award of nominal damages was intended to be a warning, stating it was a "proverbial shot fired across his bow." (Compl., Ex. A.) The Court further noted that its "finding of trespass will make it difficult for him to argue that future intrusions are innocent or the product of mistake. In light of the Court's findings and award, future trespasses or similar torts would seem more blameworthy and intentional...." ( Id. ) The Court contemplated that its judgment would serve as a warning to deter Defendant from future trespasses. If deterrence has failed, denying additional necessary relief would be inequitable.

Plaintiffs claim that Defendant's photography was intended to harass, and he in turn argues his photography was privileged. These are factual questions not appropriate for adjudication on the pleadings alone. Defendant cites no legal authority that suggests the restraining order precludes further civil action, therefore previous state action doesn't preclude Plaintiffs' claim. Finally, the agreement between the two parties on June 19 does not limit Plaintiffs' freedom to pursue a remedy in tort law.

Motion to Dismiss: Privileged Conduct

Defendant claims that his alleged photography of Plaintiffs' property is protected under litigation privilege doctrine. The litigation privilege applies to any communication that is made (1) in judicial or quasi-judicial proceedings; (2) by litigants or other authorized participants; (3) to achieve the objects of the litigation; and (4) that has some logical connection to ...

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