                                                                            FILED
                           NOT FOR PUBLICATION                               JUL 01 2015

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


GREGORY PELLERIN, an individual,                 No. 13-15860

              Plaintiff - Appellant,             D.C. No. 2:12-cv-00665-KJM-
                                                 CKD
  v.

NEVADA COUNTY, California, a county              MEMORANDUM*
government; et al.,

              Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Eastern District of California
                       Kimberly J. Mueller, District Judge

                       Argued and Submitted April 15, 2015
                            San Francisco, California

Before: SCHROEDER and N.R. SMITH, Circuit Judges and GLEASON,** District
Judge.

       Gregory Pellerin appeals from the district court’s judgment dismissing his

six 42 U.S.C. § 1983 claims and three causes of action under California law, all of


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Sharon L. Gleason, District Judge for the U.S. District
Court for the District of Alaska, sitting by designation.
which arose out of his arrest and criminal prosecution in California Superior Court.

We review de novo the dismissal of an action under the doctrine of collateral

estoppel. McQuillion v. Schwarzenegger, 369 F. 3d 1091, 1096 (9th Cir. 2004).

We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

      Pellerin was arrested and charged with felony assault, felony battery, and

misdemeanor false imprisonment by violence. His wife videotaped the incident,

then gave the videotape to the responding police officer. Pellerin has alleged that

the Sheriff’s Department improperly edited the video and the District Attorney’s

Office refused to review the exculpatory portion of the video in violation of his

constitutional rights. Pellerin moved to dismiss the criminal case on these bases,

among other grounds. After a two-day evidentiary hearing, the Superior Court

denied Pellerin’s motion. Pellerin sought mandamus review to the California

Court of Appeal, which issued an alternative writ granting Pellerin’s request for

recusal of the District Attorney’s Office. Several months later, the State dismissed

the case.

      In the instant case, the district court granted the defendants’ motion to

dismiss Pellerin’s civil rights claims pursuant to Fed. R. Civ. P. 12(b)(6), holding,

inter alia, that the § 1983 claims were precluded by collateral estoppel. The

district court declined to exercise jurisdiction over the remaining state law claims.

If the district court did not err, the parties would be bound by the following factual
findings: (1) no continuous video existed on Pellerin’s phone; (2) no evidence

supported the conclusion that law enforcement created any gaps in the video; (3)

no videos were deleted from the phone; (4) the arresting officer’s editing of the

video, while not best practices, was not intentional and was not misconduct; (5)

Pellerin had complete access to the flip phone prior to trial; and (6) no party acted

in bad faith or committed intentional misconduct, because the video was not

clearly exculpatory. These facts would preclude Pellerin from pursuing Claims 3

through 6 in his complaint. While they may not fully preclude liability on Claims

1 and 2, these facts demonstrate that there would be no harm from any

constitutional violation that Pellerin could prove.1 Accordingly, whether collateral

estoppel applies is dispositive in this case.

      “State law governs the application of collateral estoppel or issue preclusion

to a state court judgment in a federal civil rights action.” Ayers v. City of

Richmond, 895 F.2d 1267, 1270 (9th Cir. 1990). The threshold requirements for

application of collateral estoppel under California law are:

             First, the issue sought to be precluded from relitigation
             must be identical to that decided in a former proceeding.
             Second, this issue must have been actually litigated in the
             former proceeding. Third, it must have been necessarily

      1
       Even if we were to find that Claims 1 and 2 were not precluded, we would
hold that Pellerin failed to demonstrate a municipal policy causing his injuries on
Claim 1 and that the Nevada County District Attorney’s Office was entitled to
prosecutorial immunity on Claim 2.
             decided in the former proceeding. Fourth, the decision in
             the former proceeding must be final and on the merits.
             Finally, the party against whom preclusion is sought must
             be the same as, or in privity with, the party to the former
             proceeding.

Lucido v. Superior Court, 51 Cal. 3d 335, 341 (1990). In addition, “application of

issue preclusion must be consistent with the public policies of ‘preservation of the

integrity of the judicial system, promotion of judicial economy, and protection of

litigants from harassment by vexatious litigation.’” White v. City of Pasadena, 671

F.3d 918, 927 (9th Cir. 2012) (quoting Lucido, 51 Cal. 3d at 343).

      Here, the parties dispute whether the fourth requirement has been met –

whether the decision in the former proceeding was final and on the merits.2

Pellerin argues that when the State dismissed his criminal case, it terminated

Pellerin’s right to appeal the earlier adverse ruling on his motion to dismiss, and as

a result there can be no finality for collateral estoppel purposes.


      2
        In a footnote in Pellerin’s opening brief, he “disputes there was sufficient
identity of issues, in particular, that the Superior Court made only one factual
finding, namely that there had not been any Brady violation” and he “reserves the
right to further respond . . . if Respondents argue this point[.]” In Pellerin’s reply
brief, he again raises this issue only in a footnote, stating that “it is unnecessary to
argue these issues when Appellant’s right to appeal never matured.” This argument
is waived. See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We review
only issues which are argued specifically and distinctly in a party’s opening brief. .
. . [A] bare assertion does not preserve a claim, particularly when . . . a host of
other issues are presented for review.”); Rodriguez v. Airborne Express, 265 F.3d
890, 894 n.2 (9th Cir. 2001) (raising argument only in footnote was insufficient to
raise issue on appeal).
      In Schmidlin v. City of Palo Alto, the California Court of Appeal identified

four factors to consider in assessing finality for collateral estoppel purposes: “(1)

whether the decision was not avowedly tentative; (2) whether the parties were fully

heard; (3) whether the court supported its decision with a reasoned opinion; and (4)

whether the decision was subject to an appeal.” 157 Cal. App. 4th 728, 774 (2008)

(citation omitted). A prior adjudication is “sufficiently final to support preclusion

if it is determined to be sufficiently firm to be accorded conclusive effect.” Id.

(internal quotation marks and citations omitted).

      Pellerin relies on Ayers v. City of Richmond to assert that a party must have

had the opportunity to appeal the ruling or judgment in order for the finality

requirement to be met. 895 F.2d at 1271. But we do not read Schmidlin or Ayers to

require that there must be a right to appeal in every circumstance in order for the

finality requirement to be met. Rather, each case requires a consideration of each

of the four Schmidlin factors to determine if the prior ruling is sufficiently final so

as to be accorded preclusive effect.

      Here, the Superior Court’s decision on the record denying the motion to

dismiss was thoroughly reasoned (albeit not in a written opinion); the court’s

decision was not tentative. The parties were fully heard at an evidentiary hearing

and in briefing and oral argument. This is not a case where a routine pretrial order

is being invoked to preclude a range of issues never fully litigated. And while
Pellerin did not have a right to appeal the denial of his dismissal motion, he did

elect to pursue mandamus review. Lastly, we have no record to suggest that

Defendants manipulated proceedings (by dismissing the criminal charges against

Pellerin) in order to cut off Pellerin’s right to appeal. Pellerin is in no worse

position than if he had been acquitted of the charges. In these circumstances, the

Superior Court’s order is sufficiently firm and on the merits so as to be accorded

conclusive effect with respect to Pellerin’s § 1983 claims.3

      AFFIRMED.4




      3
       Because we find that Pellerin is collaterally estopped from pursuing his §
1983 claims, we do not reach the parties’ additional arguments. The district court
did not err in declining to exercise jurisdiction over the state law claims. A district
court can decline to exercise supplemental jurisdiction when the district court “has
dismissed all claims over which it has original jurisdiction.” 28 U.S.C. §
1367(c)(3).
      4
       Appellees’ Motion Requesting Judicial Notice of the October 21, 2013
Opinion of the California Court of Appeal in People v. Pellerin, No. C072654, is
denied as moot.
