Filed 6/1/20
               CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                         DIVISION EIGHT


 ALEKSANDR KON,                        B290929

      Plaintiff and Appellant,         (Los Angeles County
                                       Super. Ct. No. BC583851)
         v.

 CITY OF LOS ANGELES et al.,

     Defendants and Respondents.



      APPEAL from a judgment of the Superior Court of Los
Angeles County, Lawrence Cho, Judge. Reversed.
      Lebedev, Michael & Helmi, Gennady L. Lebedev, Sam
Helmi, and Genevieve Bourret-Roy for Plaintiff and Appellant.
      Vanderford & Ruiz, Rodolfo F. Ruiz, and Erin E. Uyeshima
for Defendants and Respondents.

                       ____________________
       The general issue is whether you can sue police in civil
court for excessive force after you have been convicted in criminal
court. Specifically, after interacting with an officer, a man was
convicted of an infraction: disturbing the peace.
Notwithstanding this conviction, can this man then sue the
officer civilly for using excessive force during the episode? Yes,
because the past conviction did not establish the officer used only
reasonable force. The first criminal conviction thus is consistent
with the second civil case, which may proceed.
                                    I
       On June 13, 2014, limousine driver Aleksandr Kon drove in
a parking lot at the Los Angeles International Airport. Officer
Damien Andrews pulled in behind Kon.
       Kon and Andrews disagree about what happened next.
       Kon says he got out of the car holding a phone and a sign
with a customer’s name when Andrews aggressively approached
and accused Kon of speeding, which Kon denied. Andrews
returned to his motorcycle. Kon answered a call from his
customer, but Andrews ran at Kon and tackled him. According to
Kon, he was down when Andrews put his knee into Kon’s back,
hit Kon, and handcuffed him. Paramedics took Kon to a hospital.
       Andrews says he saw Kon speeding in the parking lot. He
asked for Kon’s driver’s license, insurance, and registration many
times, but Kon refused. Kon approached Andrews. Andrews told
Kon to step back and to put his cell phone down so he could
handcuff Kon. Kon pulled away and resisted. Andrews was
“eventually able to place [Kon] into handcuffs and subdue him.”
       The record includes only the minutes from the criminal
proceeding.




                                 2
       Prosecutors charged Kon with violating Penal Code section
148, subdivision (a)(1) (resisting, delaying, or obstructing an
officer in the performance of the officer’s duties). Kon pleaded not
guilty.
       The court changed the charge from misdemeanor resisting
arrest to the infraction of disturbing the peace. That is, on May
15, 2015, on the prosecutor’s motion, the court ordered the
“complaint amended to change count 01 to read violation 415(1)
PC [disturbing the peace] instead of 148(A)(1) PC [resisting
arrest]” and to allege the count as an infraction. The same day,
Kon withdrew his plea of not guilty to count one and pleaded no
contest to disturbing the peace in violation of subdivision (1) of
Penal Code section 415. The court accepted the plea and stayed a
$100 fine.
       On June 3, 2015, Kon filed a civil complaint for excessive
force against Andrews, the City of Los Angeles, and Los Angeles
World Police Department. Kon brought state claims under Civil
Code section 52.1 and for assault and battery, for intentional
infliction of emotional distress, for negligence, and for negligent
hiring, training, staffing, and supervision.
       Kon amended the complaint on May 5, 2016, to correct
defendant “City of Los Angeles” to “Los Angeles World Airport.”
We refer to the defendants, now respondents, collectively as
Airport.
       In this civil case, Airport moved for summary judgment.
On July 14, 2017, the trial court denied most of this motion.
Airport invoked a litigation bar based on Yount v. City of
Sacramento (2008) 43 Cal.4th 885 (Yount). The trial court here
ruled Yount did not bar Kon’s suit, because Kon’s conviction for




                                 3
disturbing the peace did not establish Andrews had used only
reasonable force against Kon.
       The court did grant summary adjudication on Kon’s
separate claim about negligent hiring, training, and supervision.
       The case was assigned to a different judge for trial. On
May 3, 2018, the court dismissed Kon’s complaint and entered
judgment in favor of Airport. Although Kon’s Penal Code section
148 charge for resisting arrest had been dismissed and had never
been more than a mere allegation, the trial court nonetheless
ruled this allegation barred Kon’s civil action.
                                  II
       Kon can pursue his civil suit because it is consistent with
his criminal conviction.
       The governing authority is Yount, which we review.
       An officer put an inebriated Steven Yount in a patrol car.
(Yount, supra, 43 Cal.4th at pp. 889–891.) Yount then struggled
in a drunken but not deadly fashion. (Ibid.) He kicked out a car
window and cursed, spit, and bit at a team of four officers. (Ibid.)
One decided to shoot Yount with a Taser but mistakenly grabbed
his pistol and shot Yount, who survived. (Id. at p. 891.) Yount
pleaded no contest to resisting arrest in violation of Penal Code
section 148, subdivision (a)(1). (Ibid.) He then sued the police for
use of excessive force under common law battery and title 42 of
the United States Code section 1983. (Id. at pp. 891–892.) In a
stipulated and bifurcated court trial, the civil court heard live
testimony about the incident. (Id. at p. 892.)
       The California Supreme Court determined Yount’s
conviction for resisting arrest did not bar Yount’s civil claims
about excessive force, even though the second civil suit concerned
the same episode as the first criminal suit. (Yount, supra, 43




                                 4
Cal.4th at p. 900.) The two lawsuits were related, but not so
similar as to be inconsistent with each other.
        The Yount court fully acknowledged the importance of
blocking relitigation of settled matters, for two important and
familiar reasons. (Yount, supra, 43 Cal.4th at pp. 893–894.) If
past litigation settled a question, it is inefficient to relitigate it.
This concern is for finality. (Ibid.) And relitigation can create
conflicting answers to the same question. This concern is for
consistency. (Ibid.)
        Concerns for finality and consistency mean California
courts bar repetitive lawsuits unless these twin concerns have no
bearing, as when the second litigation is not repetitive. When the
second case raises a question different from what the first
litigation settled, courts permit the second suit: there is no bar,
for there is no inconsistency between the two. That was Yount’s
situation, for Yount’s criminal conviction for resisting arrest did
not establish police were right to use deadly force against him.
(Yount, supra, 43 Cal.4th at p. 898.) Yount had struggled
furiously, the hearing revealed, but officers never feared for their
lives. (Ibid.) Indeed, that factual record forced the police to
concede their deadly force was excessive, so Yount’s second
litigation raised a question beyond what the first case settled.
(Id. at pp. 898–899.) The first case thus was consistent with the
second. Yount’s civil case could proceed.
        Yount cited an earlier case from the Supreme Court of the
United States called Heck v. Humphrey (1994) 512 U.S. 477
(Heck). Heck held state prisoners may not challenge the
constitutionality of their convictions in suits under section 1983
of title 42 of the United States Code unless the conviction has
been invalidated. (Id. at pp. 486–487.) Powerful and




                                  5
crosscutting considerations of federalism drove Heck’s analysis,
which involved the interaction of two federal statutes: section
1983 of title 42 of the United States Code and the federal habeas
corpus statute. (Id. at p. 480.) Our case, however, involves
neither these federal statutes nor issues of federalism. Rather
we review a state court’s order about state law claims. (Cf.
Yount, supra, 43 Cal.4th at p. 902 [state court review of state
law].) Thus Yount, not Heck, is our polestar.
       Yount’s analysis applies here. The question is whether the
second lawsuit, which is Kon’s civil case, is consistent with the
first: Kon’s criminal prosecution. They indeed are consistent,
because the second lawsuit is about whether Andrews used force
that was reasonable or excessive, which is an issue the first case
did not address or resolve.
       The parties continue to dispute whether Andrews’s use of
force was reasonable. Kon said Andrews used force that was
excessive, in part because Andrews unjustifiably hit him while he
was flat on the ground. Andrews, by contrast, testified Kon
would not cooperate and Andrews had to, and did, use force on
Kon, and that use of force was reasonable.
       The first lawsuit did not concern this dispute. Kon’s
conviction for disturbing the peace did not establish Andrews
used only reasonable force against Kon. Penal Code section 415,
subdivision (1) applies to “[a]ny person who unlawfully fights in a
public place or challenges another person in a public place to
fight.”
       How you act and how police respond are two different
issues. The criminal case was about the former. This civil case is
about the latter. That is, fighting or challenging someone to fight
does not entitle the other to respond with excessive force.




                                 6
Conversely, you can disturb the peace even though the police
later beat you up. Their bad response is not a defense to your
bad act.
       Suppose an officer validly is trying to handcuff a struggling
suspect. If that suspect pulls away from the officer’s grip, assume
it is possible to interpret that action as “challeng[ing] another
person in a public place to fight.” (Penal Code § 415, subd. (1).)
Then the suspect has violated the law against disturbing the
peace. That violation, however, would not entitle the officer later
to hit the suspect when the suspect is subdued and flat on the
ground.
       No transcript or anything else from the criminal case
established Andrews used force that was only reasonable. The
focus of that first case was on how Kon acted, not on how
Andrews responded. The second case, however, is centrally about
how Andrews responded.
       Whether the force in this case was reasonable remains
unresolved to this day. This new question is the one Kon’s civil
suit seeks to answer.
       Under Yount, then, Kon’s conviction of disturbing the peace
does not bar Kon’s suit for excessive force, because there is no
inconsistency between the two cases. Nor is finality a concern.
The second case asks a question the first one never answered:
was Andrews’s use of force reasonable or unreasonable? The
second case may proceed.
       Lujano v. County of Santa Barbara (2010) 190 Cal.App.4th
801 is not pertinent. Yvette Lujano’s trial counsel agreed
Lujano’s criminal conviction barred her excessive force claims.
(Id. at p. 806, fn. 3.) That concession settled the issue we
confront in this case: is the second lawsuit inconsistent with the




                                 7
first? In Lujano the answer was yes, by Lujano’s own admission.
Here the answer is no, because the first case did not settle
whether the officer used only reasonable force.
       The decision in Fetters v. County of Los Angeles (2016) 243
Cal.App.4th 825 does not assist Airport. In his criminal
proceeding, William Fetters admitted brandishing an imitation
firearm against an officer in a threatening manner. (Id. at p.
831.) This act would have caused a reasonable person to fear
bodily harm. Fetters’s admission established the officer’s use of
deadly force was justified: Fetters admitted he put the officer in
reasonable fear of his life. (Id. at p. 840.) The first case ruled the
shooting—the force—was justified, and so barred the second case,
which merely sought to relitigate the same issue.
       The facts here are different. Different facts, different
result.
       Magana v. County of San Diego (2011) 835 F.Supp.2d 906
(Magana) is consistent with our result. Bruno Magana sued
police for using excessive force against him. Earlier, prosecutors
had charged Magana with criminal offenses, but then they
dismissed the charges. (Id. at p. 908.) Magana had been
convicted of nothing, so Yount did not apply and Magana’s
excessive force case could go forward. (Id. at p. 913, fn. 2.) This
analysis goes against Airport because Kon’s conviction is like
Magana’s absence of a conviction: neither criminal proceeding
established the police used only reasonable force. Kon’s civil case
may proceed, just as the Magana decision permitted Magana to
pursue his civil suit about excessive force.




                                  8
                       DISPOSITION
     We reverse the judgment and award costs to Kon.




                                       WILEY, J.

We concur:




             GRIMES, Acting P. J.




             STRATTON, J.




                               9
