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Baranchik v. Fizulich

California Court of Appeals, Second District, Fifth Division

April 19, 2017

PHILLIP BARANCHIK et al., Plaintiffs and Appellants,
v.
MARIO FIZULICH et al., Defendants and Respondents.

         APPEAL from a judgment of the Superior Court of Los Angeles County No. YC067105, Phrasel L. Shelton (Retired Judge of the San Mateo Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) and Stuart M. Rice, Judges. Affirmed.

          The Beck Law Firm and Thomas E. Beck, for Plaintiffs and Appellants.

          Manning & Kass, Ellrod, Ramirez, Trester, Mildred K. O'Linn, Tony M. Sain and Mae G. Alberto, for Defendants and Respondents.

          KRIEGLER, J.

         In 2008, defendants and respondents[1] Redondo Beach police officers Mario Fizulich, Phillip Ho, and Ellen Tumbocon interacted with plaintiffs and appellants Phillip Baranchik and Eric Baranchik.[2] The details of the interaction and subsequent arrests and criminal prosecutions are more fully described later in this opinion. Based on the interaction, Phillip, Eric, and Tiffeney Pyle[3] filed a federal civil action asserting claims for violation of their constitutional rights under 42 U.S.C. § 1983, including excessive force, false arrest, and malicious prosecution, among other claims. The parties stipulated to allow plaintiffs to dismiss their federal case and refile in state court. After the case was refiled, the trial court granted a motion to strike Eric's malicious prosecution claim and later denied a motion to reinstate that claim. The court also granted summary adjudication in favor of defendants on Eric's excessive force claim and Phillip's false arrest claim.

         Phillip and Eric appeal from the judgment. Phillip contends the trial court erroneously granted summary adjudication on his false arrest claim. Eric contends the court erroneously concluded his excessive force claim was barred as a matter of law under Heck v. Humphrey (1994) 512 U.S. 477, 486-487 (Heck). Eric also contends the court erred when it denied his request to reinstate his claim for malicious prosecution. We affirm the judgment.

         FACTUAL AND PROCEDURAL BACKGROUND

         Underlying incident

         Phillip, Eric, and Tiffeney were at a bar on the Redondo Beach pier the evening of September 18, 2008. They ordered more than one round of drinks. Phillip and Tiffeney were involved in an argument with other patrons at the bar. The incident was reported to the Redondo Beach Police Department. A dispatch was issued about a bar fight. Phillip left the bar and walked away from the pier. Eric and Tiffeney followed shortly thereafter.

         Officer Fizulich responded to the dispatch call around 11:40 p.m. As he was responding, he was informed one of the participants in the fight had left the bar. Officer Fizulich detained Phillip, who fit the description of the suspect involved in the bar fight. Officer Fizulich observed that Phillip had slurred speech and bloodshot, watery eyes, and he smelled the odor of alcohol coming from Phillip.

         In the meantime, Eric and Tiffeney were walking toward Officer Fizulich and Phillip. Two other officers also arrived on the scene-Officers Tumbocon and Ho. As Eric approached, he said, “That's my brother. What's going on here?” Officer Ho fired his taser at Eric, incapacitating him. When Tiffeney saw Eric get tased, she panicked, and ran around an outdoor shower area to get a better view of what was happening. Officer Tumbocon intercepted Tiffeney, pointing a taser at her and telling her to move back. Tiffeney responded by beginning to back up, but as she did so, she kicked her flip-flop off. The flip-flop and water from a puddle flew toward Officer Tumbocon. Officer Tumbocon believed Tiffeney was not complying with her commands and fired her taser at Tiffeney.

         After Phillip, Eric, and Tiffeney had been handcuffed and seated on the curb, Officer Fizulich spoke with the bartender from the bar. The bartender identified the three as the individuals who were involved in a disturbance at the bar.

         The officers arrested Phillip for public intoxication in violation of Penal Code section 647, subdivision (f), [4] but he was not charged in a criminal complaint. Eric was arrested and charged with (1) assaulting Officer Tumbocon in violation of section 243, subdivision (b); (2) resisting, obstructing, or delaying a peace officer in violation of section 148, subdivision (a)(1); and (3) public intoxication in violation of section 647, subdivision (f). Phillip, Eric, and Tiffeney were all released from police custody by the following day.

         Eric's criminal trial, appeal, and dismissal

         On October 14, 2008, Eric was charged with (1) assaulting Officer Tumbocon (section 243, subdivision (b)); (2) resisting, obstructing, or delaying a peace officer (section 148, subdivision (a)(1)); and (3) public intoxication (section 647, subdivision (f)). Eric's jury trial took place in late 2009. Eric contended at his trial that he was not guilty because Officer Ho used excessive force by deploying his taser on Eric. At the request of Eric's defense attorney, the jury was instructed with CALCRIM No. 2670 on the issue of excessive use of force. The instruction states, in relevant part: “The People have the burden of proving beyond a reasonable doubt that at least one of Ellen Tumbocon, Phillip Ho and/or Mario Fizulich was lawfully performing his or her duties as a peace officer. If the People have not met this burden, you must find the defendants not guilty of Count 1, violation of Penal Code section 243(b) (Battery Against Peace Officer), and Count 2, violation of Penal Code section 148(a) (Resisting Peace Officer, Public Officer or EMT). [¶] A peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone or using unreasonable or excessive force when making or attempting to make an otherwise lawful arrest or detention.” (CALCRIM No. 2670.) The jury acquitted Eric of the public intoxication and assault charges, but convicted him of resisting, obstructing, or delaying a peace officer in violation of section 148, subdivision (a)(1).

         Eric's conviction was affirmed on appeal by the Appellate Division of the Los Angeles Superior Court on August 8, 2012. The most relevant paragraph from the opinion reads as follows: “Eric contends insufficient evidence supports his conviction because Officer Ho was not engaged in the lawful performance of his duties as a peace officer when he deployed the taser gun. However, resolution of this issue was a question of fact that was properly resolved by the jury in rendering its verdict. As a reviewing court, it is not our role to reweigh the evidence. (People v. Duncan [(2008)] 160 Cal.App.4th [1014, ] 1018.) The People presented sufficient evidence to support Eric's conviction based on testimony that he failed to comply with Officer Ho's repeated orders to ‘stop, ' and by engaging in a physical altercation with Officer Ho while other officers attempted to conduct their investigation.”

         On April 9, 2014, the criminal trial court granted Eric's petition to dismiss his criminal conviction under section 1203.4.

         Federal lawsuit

         Plaintiffs Phillip, Eric, and Tiffeney filed a civil complaint in federal district court on September 15, 2010, alleging civil rights violations under 42 U.S.C. § 1983, including a claim of malicious prosecution. The district court dismissed the malicious prosecution claim on March 29, 2011. In April 2012, the district court judge indicated he would allow limited time to both sides for trial, and he refused to continue the April 24, 2012 trial date. The parties negotiated a stipulation to allow plaintiffs to dismiss the federal case and refile in state court.

         State lawsuit

         Plaintiffs filed their complaint in state court on May 16, 2012. The court sustained a demurrer and granted plaintiffs leave to amend. Plaintiffs filed a first amended complaint. The causes of action relevant to this appeal were all pursued under 42 U.S.C. § 1983, and, among other claims not relevant to this appeal, alleged the following claims: (1) the first cause of action by Eric against Officer Ho for unreasonable force (excessive force claim); (2) the fourth cause of action by Phillip against Officer Fizulich for false arrest (false arrest claim); and (3) the seventh cause of action by Eric against Officers Ho, Fizulich, and Tumbocon for malicious prosecution (malicious prosecution claim). Later, Judge Phrasel L. Shelton granted defendants' motion to strike Eric's malicious prosecution claim, noting that plaintiffs had not been granted leave to add a new claim. Judge Stuart M. Rice subsequently denied Eric's motion for leave to file a second amended complaint to reinstate his malicious prosecution claim.

         In June 2013, defendants filed a motion for summary judgment or adjudication, arguing that undisputed facts demonstrate they were entitled to judgment as a matter of law on all of plaintiffs' claims. They argued that Officer Fizulich was entitled to qualified immunity as to Phillip's false arrest claim because he reasonably believed that probable cause existed to arrest Phillip for public intoxication. They also argued that Eric's conviction of violating section 148 barred his excessive force claim against ...


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