Filed 10/10/13 Pulido v. Reaver CA4/2



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



ALBERTO PULIDO,

         Plaintiff and Appellant,                                        E055655

v.                                                                       (Super.Ct.No. RIC396282)

DAVID REAVER et al.,                                                     OPINION

         Defendants and Respondents.



         APPEAL from the Superior Court of Riverside County. Stephen D. Cunnison,

Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant

to art. VI, § 6 of the Cal. Const.) Reversed.

         Robert Mann and Donald W. Cook for Plaintiff and Appellant.

         Klute & Newton and Edward Wallace Dingman for Defendants and Respondents.




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       This case presents the question of whether plaintiff was required to proffer expert

testimony as to the standard of care applicable to a professional dog trainer in order to

establish a breach of that standard of care. The superior court found that such evidence

was required. We disagree and reverse.

                        PROCEDURAL HISTORY AND FACTS

       On July 14, 2003, plaintiff and appellant Alberto Pulido filed a complaint for

damages in the Superior Court of Riverside County against David Reaver (Reaver) and

Adlerhorst International Inc.,1 the City of El Segundo, the El Segundo Police

Department, Jack Wayt, and Officer Leyman. Over the years, the case was disposed of

as to all defendants except for Reaver.

       The complaint alleged that plaintiff was a parole officer for the State of California.

On July 8, 2002, he was searching for a parolee to take into custody. El Segundo police

officers were assisting in the search, including a canine unit. Officer Leyman was in

charge of the police dog. The complaint also alleged that the officer released the dog,

knowing it would probably bite whomever it found. The dog attacked and injured

plaintiff.

       The complaint further alleged that Reaver trained the dog and its handler under

contract with the City of El Segundo. Without repeating all of the allegations against

Reaver, it is sufficient to say that the complaint alleged that the training provided by

Reaver to the dog and its handler, Leyman, “was grossly and wantonly defective.”

       1 Additionally, the complaint alleged that Alderhorst is a California corporation,
which is wholly owned by defendant Reaver. Reaver does not dispute the allegation.


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       The complaint then alleged causes of action for excessive force (42 U.S.C.

§ 1983), civil rights violations (Civ. Code, § 52.1), battery, and negligence. The

negligence cause of action was directed at Reaver, the City of El Segundo, and the El

Segundo Police Department.

       In October 2003, the matter was removed to the United States District Court for

the Central District of California. In the pretrial conference order dated November 8,

2004, plaintiff asserted only a negligence claim against Reaver.2

       On the first day of trial, the Honorable Manuel Real stated that there would be no

expert testimony in the case because no one had been designated as an expert. Judge

Real then found that “it’s the testimony of an expert that tells the standard of care.” The

matter was then dismissed against Reaver.

       The judgment of dismissal found that plaintiff’s allegations of Reaver’s negligence

were “not the type of negligence which could be determined by lay persons from their

common sense and without the need for expert testimony.” Plaintiff appealed to the

United States Court of Appeals, Ninth Circuit.

       In a memorandum decision filed December 18, 2007, the Ninth Circuit three-judge

panel held that: “The district court also erred in dismissing [plaintiff]’s negligence claim

when it found, as a matter of state law, that [plaintiff] could not establish negligence

because he had not designated an expert.” It also said: “Nothing in either the Federal


       2  By our court’s order filed September 21, 2012, we reserved ruling on plaintiff’s
request for judicial notice for consideration with this appeal. We now grant the request
for judicial notice.


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Rules of Evidence or California law mandates the designation of an expert witness in this

case.”

         The Ninth Circuit decision concluded: “We can find no evidence that California

law requires expert testimony in a dog-bite case. We think that a jury may, without

expert testimony, infer that police-trained dogs are not trained to bite non-suspects and

then not release despite efforts by the handler to call off the dog. It is possible that

[plaintiff] will not ultimately prevail on his negligence claim without an expert witness,

but he may present his case.”

         Following the Ninth Circuit’s decision, a first amended complaint for damages

was filed on February 6, 2008, in the district court.

         On September 3, 2008, Judge Real remanded the matter “to state court in that the

only claims at issue are state law claims.”

         Upon remand to the superior court, the City of El Segundo successfully moved for

summary judgment. That left Reaver as the only defendant, and the only claim against

him was negligence.

         The specific negligence allegations were defendants, including Reaver,

“negligently permitted a police dog to attack and bite plaintiff when they knew or should

have known, in the exercise of ordinary care, that the use of such dog was unnecessary,

and that the use of the dog created a substantial probability of causing serious injury to

plaintiff.” It is further alleged that Reaver “had a duty to adequately train, supervise and

monitor the dog handlers and dogs in the Department’s canine units. Despite their duty




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to do so, these defendants negligently trained, supervised and monitored the dog handlers

and dogs in the Department’s Canine Units.”

       On November 7, 2011, trial began with consideration of in limine motions.

Reaver filed a motion in limine to preclude expert witness testimony. Plaintiff did not

oppose the motion because he had not designated any experts.

       The superior court heard arguments on the issue of whether plaintiff could prevail

on a negligence claim without expert testimony. Plaintiff argued that he intended to use

Reaver’s admissions to establish a breach of the duty of care, and expert testimony was

not required. After hearing an offer of proof, the superior court concluded that the

proffered evidence did not establish a standard of care without expert testimony, nor

“does it give the jury a basis on which to establish a standard of care on the usual

reasonable man basis.”

       After further consideration, the parties agreed that a judgment of nonsuit was the

appropriate disposition of the case in light of the superior court’s ruling. A judgment of

nonsuit incorporating the superior court’s ruling was filed on November 21, 2011. This

appeal followed.

                                          ISSUES

       Plaintiff raises the following issues on appeal: (1) The law of the case applies

and the superior court was obligated to follow the Ninth Circuit’s opinion in this case;

(2) plaintiff’s proffered evidence showed a breach of the standard of care; and (3) if

expert testimony was required, the superior court should have granted plaintiff leave to

designate an expert.


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       We find the first issue dispositive.

                            LAW OF THE CASE DOCTRINE

       “If a case is first tried, and the judgment rendered is reversed on appeal, it will

ordinarily be tried again (except where the reversal is with directions to enter judgment).

[Citation.] And after retrial (and in some situations after a judgment is entered pursuant

to directions), another appeal may be taken. The doctrine of ‘law of the case’ deals with

the effect of the first appellate decision on the subsequent retrial or appeal. The decision

of an appellate court, stating a rule of law necessary to the decision of the case,

conclusively establishes that rule and makes it determinative of the rights of the same

parties in any subsequent retrial or appeal in the same case.” (9 Witkin, California

Procedure (5th ed. 2008) Appeal, § 459, p. 515.) Witkin’s statement of the rule was

quoted by our Supreme Court in Nally v. Grace Community Church (1988) 47 Cal.3d

278, 301-302.

       In the recent case of Sargon Enterprises, Inc. v. University of Southern California

(2013) 215 Cal.App.4th 1495, the court said: “Under that doctrine, ‘“the decision of an

appellate court, stating a rule of law necessary to the decision of the case, conclusively

establishes that rule and makes it determinative of the rights of the same parties in any

subsequent retrial or appeal in the same case.”’ [Citation.] The doctrine applies to

decisions of intermediate appellate courts as well as courts of last resort. The doctrine

promotes finality by preventing relitigation of issues previously decided. [Citation.]

Although the doctrine does not apply to points of law that might have been determined,

but were not decided in the prior appeal, the doctrine does extend to questions that were


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implicitly determined because they were essential to the prior decision. [Citations.] ‘The

doctrine is one of procedure that prevents parties from seeking reconsideration of an issue

already decided absent some significant change in circumstances.’ [Citation.]” (Id. at

p. 1505.)

       In the present case, both the superior and district courts held that expert testimony

was required to establish the applicable standard of care applicable to police dog trainers.

A three-judge panel of the Ninth Circuit reversed the district court and held that it erred

“in dismissing [plaintiff]’s negligence claim when it found, as a matter of state law, that

[plaintiff] could not establish negligence because he had not designated an expert.” It

specifically found that California law does not mandate the designation of an expert in

this case.

       Nevertheless, the state superior court reconsidered the issue while deciding the

motion in limine and again held that expert testimony was required to establish a standard

of care. The law of the case doctrine was intended to prevent such relitigation of an issue

that was previously decided by an appellate court, and it clearly applies here.3




       3  Reaver contends that plaintiff failed to raise this issue in the superior court.
However, while not emphasizing the issue, plaintiff’s counsel did state: “[O]ne of the
reasons why we all knew that it [the issue of whether an expert witness was required] was
a potential issue here, this case was originally in federal court and was dismissed on the
first day of trial. And one of the arguments made to the [N]inth [C]ircuit is that, even if
the dismissal was made for other reasons, [it] was improper. Plaintiff couldn’t go
forward with this case because as in that court, there was no designation of an expert.
The [N]inth [C]ircuit still reversed.”


                                              7
       However, a state court, including this court, is not required to follow a federal

appellate court interpretation of state law, and the question arises whether the Ninth

Circuit decision is binding on the superior or this court.

       Plaintiff cites a case that provides the answer to this question. In Adams v. Pacific

Bell Directory (2003) 111 Cal.App.4th 93 (Adams), Pacific Bell employees sued their

employer, claiming that its practice of debiting employees’ commissions was unlawful

under California law, even though the practice was expressly permitted by their collective

bargaining agreement. (Id. at p. 95.) The employer removed the case to federal court.

That court held that the federal law governing collective bargaining agreements

preempted the employees’ state law claims. Finding no preemption, the Ninth Circuit

reversed and remanded the case to the state court. (Ibid.) The superior court then held

that preemption did apply. (Ibid.) On appeal, our colleagues in Division Three held that

“the policies supporting application of the doctrine of ‘law of the case’ permit us to

follow the determination made by the federal appellate court.” (Id. at p. 96.)

       Explaining the decision, the Adams court said: “‘[W]here an appellate court states

in its opinion a principle of law necessary to the decision, that principle becomes law of

the case and must be adhered to in all subsequent proceedings, including appeals.

[Citations.]’ [Citation.] We recognize that the law of the case doctrine is not absolute; it

‘is merely a rule of procedure and does not go to the power of the court . . . .’ [Citation.]

Further, we are not required to adhere to decisions by the federal appellate courts, even

on questions of federal law. [Citation.] [¶] But, although not binding, we give great

weight to federal appellate court decisions. [Citation.] This is particularly true in the


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context of their determination of federal law, as happened here. [Citation.] Thus, in this

instance, we believe it is appropriate to apply the principles of the law of the case.”

(Adams, supra, 111 Cal.App.4th at pp. 97-98.) As in Adams, we agree that the law of the

case doctrine should be applied in this case, even though the federal court’s decision

concerned state law rather than federal law.

                                       DISPOSITION

       The judgment is reversed. Plaintiff to recover his costs on appeal.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                                 McKINSTER
                                                                                          J.

We concur:



RAMIREZ
                        P. J.



KING
                           J.




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