Filed 3/1/16 Cobb v. Brigoni CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



JOHN COBB,                                                          D066261

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No.
                                                                     37-2013-00050796-CU-CR-CTL)
SAUL BRIGNONI,

         Defendant and Respondent.


         APPEAL from a judgment of the Superior Court of San Diego County, Joan M.

Lewis, Judge. Affirmed.

         John Cobb, in pro. per., for Plaintiff and Appellant.

         Kamala D. Harris, Attorney General, Kristin G. Hogue, Assistant Attorney

General, Richard F. Wolfe and David F. Taglienti, Deputy Attorneys General, for

Defendant and Respondent.

         Plaintiff John Cobb appeals a judgment entered after the trial court sustained the

demurrer of defendant Saul Brignoni in Cobb's action against Brignoni and others for

violation of his constitutional rights, malicious prosecution, and other causes of action.
On appeal, Cobb contends the trial court erred by concluding: (1) his action was barred

by the doctrine of res judicata based on the dismissal of his prior federal court action; and

(2) his state causes of action were also barred by his failure to timely file a government

tort claim. For the reasons discussed below, we conclude the court correctly sustained

Brignoni's demurrer.

                   FACTUAL AND PROCEDURAL BACKGROUND

       On May 29, 2013, Cobb, in propria persona, filed the instant action against

Brignoni and other defendants alleging causes of action for violations of his rights under

the First, Fourth, and Fourteenth Amendments to the United States Constitution (42

U.S.C. § 1983), malicious prosecution, negligence, false arrest, and related causes of

action arising out of a traffic stop conducted by Brignoni, a California Highway Patrol

officer. Cobb's complaint alleged that on October 11, 2008, Brignoni initiated a traffic

stop of his vehicle and, after Cobb drove several miles before stopping, forced him to the

ground and handcuffed him. Brignoni arrested Cobb for evading a police officer (Veh.

Code, § 2800.1) and resisting arrest (Pen. Code, § 148, subd. (a)). Cobb's complaint

alleged Brignoni did not have reasonable cause to stop him, used excessive force by

forcing him to the ground and handcuffing him, searched his vehicle without legal cause,

and charged him with crimes he did not commit. The complaint also alleged Brignoni

falsified his police report and discriminated, conspired, and retaliated against Cobb by

recommending to the San Diego County District Attorney that criminal charges be filed

against him for crimes he did not commit and for his subsequent filing of a federal

lawsuit against the district attorney and others.

                                              2
       On September 12, 2013, Brignoni filed a demurrer to the complaint. Cobb

opposed the demurrer. The trial court issued an order sustaining the demurrer without

leave to amend, concluding Cobb's action was barred by the doctrine of res judicata. On

April 25, 2014, the court entered judgment for Brignoni. Cobb timely filed a notice of

appeal.

                                       DISCUSSION

                                              I

                               Demurrer Standard of Review

       A demurrer tests the legal sufficiency of a complaint. (City of Morgan Hill v. Bay

Area Air Quality Management Dist. (2004) 118 Cal.App.4th 861, 869.) A general

demurrer to a complaint asserts the pleading does not state facts sufficient to constitute a

cause of action. (Code Civ. Proc., § 430.10, subd. (e); Rakestraw v. California

Physicians' Service (2000) 81 Cal.App.4th 39, 42-43; Young v. Gannon (2002) 97

Cal.App.4th 209, 220.) "In determining whether the complaint states facts sufficient to

constitute a cause of action, the trial court may consider all material facts pleaded in the

complaint and those arising by reasonable implication therefrom; it may not consider

contentions, deductions or conclusions of fact or law." (Young, at p. 220.)

       On appeal after a trial court sustains a general demurrer, we determine de novo the

question of whether the complaint alleges facts sufficient to state a cause of action under

any legal theory. (Rakestraw v. California Physicians' Service, supra, 81 Cal.App.4th at

p. 43.) In so doing, we accept as true all material factual allegations of the complaint,

unless contrary to law or facts of which a court may take judicial notice. (Mechanical

                                              3
Contractors Assn. v. Greater Bay Area Assn. (1998) 66 Cal.App.4th 672, 677; Edwards

v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 27.) The plaintiff bears the

burden on appeal to show the trial court erred by sustaining a demurrer. (Rakestraw, at

p. 43.) "A judgment of dismissal after a demurrer has been sustained without leave to

amend will be affirmed if proper on any grounds stated in the demurrer, whether or not

the court acted on that ground." (Carman v. Alvord (1982) 31 Cal.3d 318, 324.) If we

conclude after reviewing a complaint that no liability exists as a matter of law, we must

affirm the trial court's order sustaining the demurrer. (City of Morgan Hill v. Bay Area

Air Quality Management Dist., supra, 118 Cal.App.4th at p. 870.)

                                              II

            Application of the Doctrine of Res Judicata to Bar Cobb's Action

       Cobb contends the trial court erred by concluding the doctrine of res judicata

applied to bar his action against Brignoni.

                                              A

       In demurring to Cobb's complaint, Brignoni asserted Cobb's entire action was

barred by the doctrine of res judicata and, in addition, Cobb's state law claims were

barred by his failure to timely file a claim with the appropriate government agency as

required by Government Code section 911.2. In support of his demurrer, Brignoni filed a

request for judicial notice of certain documents in Cobb's prior federal lawsuit, which

was dismissed by the federal district court. He sought judicial notice of Cobb's complaint

filed on October 7, 2010, in the United States District Court, Southern Division of

California, against Brignoni and other defendants, requesting to proceed in forma

                                              4
pauperis and alleging material facts, and causes of action based on those facts,

substantially the same as those alleged in the instant state action. Brignoni also sought

judicial notice of the federal district court's August 9, 2011, order granting Cobb's request

to proceed in forma pauperis and then dismissing, pursuant to title 28 United States Code

section 1915(e)(2)(B), Cobb's federal lawsuit for failure to state a claim on which relief

may be granted. Brignoni's demurrer argued the federal district court's dismissal of

Cobb's prior federal lawsuit was a judgment on the merits of his action and, based on that

prior judgment, the doctrine of res judicata applied to bar his instant state action.

       Cobb opposed Brignoni's demurrer, arguing he alleged facts sufficient to state a

cause of action against Brignoni, and the 2011 federal district court order dismissing his

federal lawsuit did not bar his instant action under the doctrine of res judicata. He argued

the federal district court did not have jurisdiction over his federal lawsuit and its

dismissal of that lawsuit was without prejudice and not a final judgment on the merits.

       Brignoni replied to Cobb's opposition, arguing the doctrine of res judicata applied

to bar the instant action because the federal district court order dismissing Cobb's federal

lawsuit for failure to state a claim was presumptively with prejudice and was a final

judgment on the merits. On April 4, 2014, the trial court issued its order granting

Brignoni's request for judicial notice and sustaining his demurrer to Cobb's complaint

without leave to amend.1 The court stated:



1      On April 28, 2015, we granted Brignoni's request that we take judicial notice of
the same federal district court documents of which the trial court took notice.

                                               5
           "In sustaining the demurrer[,] the Court first finds that the [federal]
           District Court's order dismissing [Cobb's] complaint . . . constitutes a
           judgment on the merits implicating the doctrine of res judicata and
           barring this action. In this regard, the Court rejects [Cobb's]
           argument that the [federal] District Court lacked jurisdiction
           pursuant to . . . [Government Code section] 945.3 or that the doctrine
           of substantiality applies here. Moreover, the Court finds that the
           [federal] District Court ruling was on the merits and acted as an
           involuntary dismissal with prejudice. See, e.g., Federal Rule of Civil
           Procedure 41(b)."

The court also concluded Cobb's state tort claims were untimely. The court denied Cobb

leave to amend his complaint because he did not offer any facts or argument regarding

how he would amend his complaint to cure the defects. On April 25, the court entered

judgment against Cobb.

                                               B

       "Res judicata operates as a bar to maintaining a second suit between the same

parties or parties in privity with them on the same cause of action. [Citations.] However,

where a judgment is not rendered on the merits, it does not operate as a bar. [Citation.]

Res judicata precludes piecemeal litigation by splitting a single cause of action or

relitigation of the same cause of action on a different legal theory or for different relief."

(Lucas v. County of Los Angeles (1996) 47 Cal.App.4th 277, 285.) Alternatively stated,

"[t]he doctrine of res judicata precludes parties or their privies from relitigating an issue

that has been finally determined by a court of competent jurisdiction. [Citation.] 'Any

issue necessarily decided in such litigation is conclusively determined as to the parties or

their privies if it is involved in a subsequent lawsuit on a different cause of action.'

[Citation.] The application of the doctrine in a given case depends upon an affirmative


                                               6
answer to these three questions: (1) Was the issue decided in the prior adjudication

identical with the one presented in the action in question? (2) Was there a final judgment

on the merits? (3) Was the party against whom the plea [of res judicata] is asserted a

party to or in privity with a party to the prior adjudication?" (Levy v. Cohen (1977) 19

Cal.3d 165, 171 (Levy).)

       "For purposes of identifying a cause of action under the doctrine of res judicata,

'California has consistently applied the "primary rights" theory, under which the invasion

of one primary right gives rise to a single cause of action.' [Citation.] But ' . . . the

"cause of action" is based upon the harm suffered, as opposed to the particular theory

asserted by the litigant. [Citation.] Even where there are multiple legal theories upon

which recovery might be predicated, one injury gives rise to only one claim for relief.' "

(Branson v. Sun-Diamond Growers (1994) 24 Cal.App.4th 327, 340-341, fn. omitted

(Branson).)

       In the context of demurrers, the California Supreme Court set forth certain rules

for the application of the doctrine of res judicata, stating:

           "First, a final judgment, rendered upon the merits by a court having
           jurisdiction of the cause, is conclusive of the rights of the parties and
           those in privity with them, and is a complete bar to a new suit
           between them on the same cause of action. This is the general
           doctrine of res judicata. [Citations.] Second, a judgment not
           rendered on the merits does not operate as a bar. [Citations.] Third,
           a judgment based upon the sustaining of a special demurrer for
           technical or formal defects is clearly not on the merits and is not a
           bar to the filing of a new action. [Citations.] Fourth, judgments
           based upon sustaining a general demurrer have given rise to an
           apparent conflict of decision, and careful distinctions must be drawn
           between the cases. [Citations.] A judgment given after the
           sustaining of a general demurrer on a ground of substance, for

                                               7
          example, that an absolute defense is disclosed by the allegations of
          the complaint, may be deemed a judgment on the merits, and
          conclusive in a subsequent suit; and the same is true where the
          demurrer sets up the failure of the facts alleged to establish a cause
          of action, and the same facts are pleaded in the second action."
          (Goddard v. Security Title Ins. & Guar. Co. (1939) 14 Cal.2d 47, 51-
          52, second italics added (Goddard).)

       In the context of a state action filed after a federal court judgment, one court

stated: "California gives full faith and credit to a final order or judgment of a federal

court [citation] by 'follow[ing] the rule that the preclusive effect of a prior judgment of a

federal court is determined by federal law, at least where the prior judgment was on the

basis of federal question jurisdiction.' " (Nathanson v. Hecker (2002) 99 Cal.App.4th

1158, 1163.) The California Supreme Court has alternatively stated: "Full faith and

credit must be given to a final order or judgment of a federal court. [Citations.] Such an

order or judgment has the same effect in the courts of this state as it would have in a

federal court. [Citations.] In the federal jurisdiction, the doctrine of res judicata prevents

the readjudication of all matters (including jurisdiction) which were, or might have been,

litigated in a prior proceeding between the same parties." (Levy, supra, 19 Cal.3d at

pp. 172-173, italics added.)

                                              C

       We conclude the 2011 federal district court order dismissing Cobb's federal

lawsuit against Brignoni and other defendants pursuant to title 28 United States Code

section 1915(e)(2)(B) is a final order or judgment on the merits, by a court having

jurisdiction over that federal lawsuit, and is conclusive of the rights of Cobb and Brignoni

and therefore a complete bar under the doctrine of res judicata to Cobb's instant state

                                              8
action against Brignoni, which is based on the same cause of action or "primary right."

(Branson, supra, 24 Cal.App.4th at pp. 340-341; Goddard, supra, 14 Cal.2d at p. 51.) In

dismissing Cobb's federal lawsuit, the federal district court relied on its authority under

title 28 United States Code section 1915, which governs proceedings in forma pauperis

(such as Cobb's federal lawsuit), to dismiss a lawsuit on its own motion if the court

determines the action fails to state a claim on which relief may be granted. (28 U.S.C.

§ 1915(e)(2) ["[T]he court shall dismiss the case at any time if the court determines

that—[¶] . . . [¶] (B) the action or appeal—[¶] . . . [¶] (ii) fails to state a claim on which

relief may be granted[.]"].) The federal district court dismissed Cobb's federal lawsuit

against Brignoni because, assuming the truth of all the material facts alleged, it did not

state any cause of action on which relief could be granted.

       As the People note, a dismissal on that ground is equivalent to a dismissal under

rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. (See

Barren v. Harrington (9th Cir. 1998) 152 F.3d 1193, 1194.) Under rule 12(b)(6) of the

Federal Rules of Civil Procedure, a dismissal for failure to state a claim is a dismissal

within the meaning of rule 41(b) of the Federal Rules of Civil Procedure and therefore

presumably a dismissal with prejudice (unless otherwise expressly stated), and an

adjudication on the merits that bars further litigation on the claim alleged. (Federated

Dept. Stores, Inc. v. Moitie (1981) 452 U.S. 394, 399, fn. 3; Nowak v. Ironworkers Local

6 Pension Fund (2d Cir. 1996) 81 F.3d 1182, 1187-1188; Bell v. Hood (1946) 327 U.S.

678, 682 ["[I]t is well settled that the failure to state a proper cause of action calls for a

judgment on the merits and not for a dismissal for want of jurisdiction."].) Also, because

                                                9
federal court dismissals under title 28 United States Code section 1915(e)(2)(B)(ii) and

rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim are

comparable to dismissals by California courts after sustaining a general demurrer for

failure to state a cause of action, the federal court dismissals should have no less res

judicata effect than California court dismissals based on the same ground (i.e., failure to

state a cause of action). (Cf. Goddard, at pp. 51-52 [a judgment after sustaining a general

demurrer for failure to state a cause of action is a judgment on the merits and is

conclusive in a subsequent suit (i.e., the doctrine of res judicata applies to bar a second

suit based on the same primary right).].)

       Furthermore, because the federal district court expressly relied on its statutory

authority under title 28 United States Code section 1915(e)(2)(B)(ii) to dismiss Cobb's

federal lawsuit for failure to state a claim, it necessarily had subject matter jurisdiction

over that lawsuit (which alleged both federal and state claims) and therefore had

"jurisdiction of the cause" for purposes of the res judicata effect of its order dismissing it.

(Goddard, supra, 14 Cal.2d at p. 51.)

       The 2011 federal district court order dismissing Cobb's federal lawsuit also

became a "final" order on its issuance, regardless of whether Cobb appealed that

decision.2 "In federal courts, a district court [order or] judgment is 'final' for purposes of

res judicata." (Orion Tire Corp. v. Goodyear Tire & Rubber Co. (9th Cir. 2001) 268 F.3d



2       Because there is nothing in the record showing Cobb appealed the federal district
court's order dismissing his federal lawsuit, we presume he did not do so and that the
2011 order was never reversed by a reviewing court.
                                              10
1133, 1135, fn. 2.) A federal district court order or judgment is final even during the

pendency of an appeal (at least until such time as it may be reversed). (Sosa v.

DIRECTV, Inc. (9th Cir. 2006) 437 F.3d 923, 928.) Furthermore, "[a] federal [district

court] judgment [or order] is final in California courts as it would be in federal courts

[citation] . . . ." (Calhoun v. Franchise Tax Bd. (1978) 20 Cal.3d 881, 887.)

       California courts give full faith and credit to final orders and judgments of federal

courts. (Levy, supra, 19 Cal.3d at pp. 172.) Therefore, the 2011 federal district court

order dismissing Cobb's federal lawsuit has the same res judicata effect in California

courts as it would have in federal courts (i.e., the doctrine of res judicata prevents the

readjudication of all matters that were, or might have been, litigated in that prior federal

court proceeding between Cobb and Brignoni). (Id. at p. 173; cf. Cieszkowska v. Gray

Line New York (2002) 295 F.3d 204, 205-206 [the doctrine of res judicata applied to bar a

second in forma pauperis federal lawsuit because the plaintiff's first in forma pauperis

federal lawsuit on the same claim was dismissed for failure to state a claim under 28

U.S.C. § 1915(e)(2)].)

       Because Cobb's instant action alleged the same harm, or invasion of the same

primary right, as alleged in his prior federal lawsuit that the federal district court

dismissed in 2011 for failure to state a claim, the doctrine of res judicata applies to

preclude those same claims alleged in the instant action. (Branson, supra, 24

Cal.App.4th at pp. 340-341; Lucas v. County of Los Angeles, supra, 47 Cal.App.4th at

p. 285; Goddard, supra, 14 Cal.2d at pp. 51-52; Levy, supra, 19 Cal.3d at pp. 172-173.)



                                              11
The trial court correctly sustained Brignoni's general demurrer to Cobb's complaint

without leave to amend and entered judgment against Cobb.3

                                              D

       We are unpersuaded by Cobb's argument that the trial court erred by applying the

doctrine of res judicata to bar his action against Brignoni. Contrary to Cobb's assertion,

Government Code section 945.3 did not preclude the federal district court from having

jurisdiction over his federal lawsuit claims. Because of the federal supremacy clause,

that statute does not prohibit a plaintiff from filing a title 42 United States Code section

1983 action while a criminal action may be pending against that plaintiff. (Harding v.

Galceran (9th Cir. 1989) 889 F.2d 906, 908; cf. Williams v. Horvath (1976) 16 Cal.3d

834, 842 [the federal supremacy clause precludes the application of California claim

presentation requirements to bar federal actions (i.e., 42 U.S.C. § 1983 actions)].)

       Likewise, the substantiality doctrine does not apply to bar the application of the

doctrine of res judicata in the circumstances of this case. Under that doctrine, a federal

district court lacks subject matter jurisdiction if the question presented is too insubstantial

to consider. (Hagans v. Lavine (1974) 415 U.S. 528, 536-539; Oneida Indian Nation v.

County of Oneida (1974) 414 U.S. 661, 666-667.) However, the cases cited by Cobb are

inapposite because the 2011 federal district court order in this case was not based on the


3      Because Cobb made no substantive effort either below or on appeal to suggest
amendments to his complaint that would have avoided application of the doctrine of res
judicata and stated a valid cause of action, we need not, and do not, address the question
of whether the trial court may have abused its discretion by not granting him leave to
amend his complaint.

                                              12
insubstantiality of Cobb's federal lawsuit, but instead on its failure to state a claim on

which relief may be granted within the meaning of title 28 United States Code section

1915(e)(2)(B)(ii). Therefore, the federal district court had, and exercised, subject matter

jurisdiction in dismissing Cobb's federal lawsuit and the doctrine of res judicata bars his

instant state action.

       We also reject Cobb's assertion the doctrine of res judicata cannot apply to bar the

instant action because the federal district court did not have personal jurisdiction over

Brignoni and therefore lacked jurisdiction to dismiss his federal lawsuit with prejudice.

Cobb does not cite any documents in the record on appeal that support his assertion.

Absent any definitive documentation in the record on appeal, we presume the federal

district court had jurisdiction, both subject matter and personal, over Cobb's federal

lawsuit that was not dismissed until 10 months after it was filed.4 Cobb has not carried

his burden on appeal to show otherwise. In any event, the federal district court dismissed

Cobb's federal lawsuit based on its subject matter jurisdiction and authority to do so

under title 28 United States Code section 1915(e)(2)(B)(ii), which does not require the

court to have personal jurisdiction over the defendant before it can dismiss sua sponte a

federal in forma pauperis lawsuit for failure to state a claim on which relief may be




4       We would generally expect a reasonable plaintiff to serve a copy of a summons
and complaint on a defendant shortly after its filing and long before 10 months after its
filing. That would especially be the case when a defendant is easily located and
amenable to service, presumably such as a state government employee like Brignoni.

                                              13
granted.5 Because we must give full faith and credit to final federal court orders and

judgments, we cannot consider Cobb's collateral challenge of the federal district court's

jurisdiction when it exercised its statutory authority to dismiss his federal lawsuit for

failure to state a claim. Therefore, Cobb has not carried his burden on appeal to show the

trial court erred by applying the doctrine of res judicata to bar his instant state action.

None of the cases cited by Cobb are apposite to this case or otherwise persuade us to

reach a contrary conclusion.

                                              III

                                 California Tort Claims Act

       Although because of our conclusion above we need not address Cobb's additional

contention that the trial court also erred by concluding his state causes of action were

barred by his failure to timely file a claim with the appropriate government entity as

required by the California Tort Claims Act (Gov. Code, § 900 et seq.), we nevertheless

briefly address that issue. Contrary to Cobb's belief, Government Code section 945.3

does not toll a plaintiff's requirement to timely file a claim with a government entity

under the California Tort Claims Act, but only tolls the period during which such a

plaintiff can thereafter file a civil action in a state court. Government Code section 945.3

provides in pertinent part:

           "No person charged by . . . information . . . or other accusatory
           pleading charging a criminal offense may bring a civil action for


5      Cobb wrongly asserts the federal district court dismissed his federal lawsuit for
lack of jurisdiction.

                                              14
          money or damages against a peace officer or the public entity
          employing a peace officer based upon the conduct of the peace
          officer relating to the offense for which the accused is charged . . .
          while the charges against the accused are pending before a superior
          court.

          "Any applicable statute of limitations for filing and prosecuting
          these actions shall be tolled during the period that the charges are
          pending before a superior court. [¶] . . . [¶]

          "Nothing in this section shall prohibit the filing of a claim with the
          board of a public entity, and this section shall not extend the time
          within which a claim is required to be presented pursuant to Section
          911.2." (Italics added.)

The italicized paragraph above was added by the Legislature by amendment in 1983.

(See Historical and Statutory Notes, 32A Pt. 1A West's Ann. Gov. Code (2010 ed.) foll.

§ 945.3, p. 14.) Therefore, by its express terms, Government Code section 945.3 did not

either preclude Cobb from filing a claim pursuant to Government Code section 911.2 of

the California Tort Claims Act or, contrary to his assertion, toll the applicable period

during which his claim was required to be filed.

       Government Code section 911.2, subdivision (a), provides that a claim relating to

a cause of action for injury to person shall be presented to the government entity no later

than six months after accrual of the cause of action and any other cause of action shall be

presented no later than one year after the accrual of the cause of action. In this case,

Cobb's alleged injury or injuries, and cause(s) of action based thereon, accrued on or

about the time of his alleged unlawful traffic stop by Brignoni on October 11, 2008.

However, he did not file a claim with the California Victim and Compensation and

Government Claims Board until September 21, 2012, almost four years later. Because


                                             15
Cobb did not file a claim within the time period required by Government Code section

911.2, the trial court correctly concluded his state claims were barred by that failure.

                                      DISPOSITION

       The judgment is affirmed.




                                                                            McDONALD, J.

WE CONCUR:


HUFFMAN, Acting P. J.


O'ROURKE, J.




                                             16
