Filed 11/25/13 Padilla v. Walgreen Co. CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT

CHAD PADILLA,                                                        B244834

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC 456804)
         v.

WALGREEN COMPANY et al.,

         Defendants and Respondents.




         APPEAL from a judgment and order of the Superior Court for the County of Los
Angeles. Teresa Sanchez-Gordon, Judge. Affirmed.
         Chad Padilla, in pro. per., for Plaintiff and Appellant.
         McCurdy & Leibl, Loren S. Leibl, Michael Miretsky and Lee M. Moulin for
Defendants and Respondents Walgreen Company and Rouehna Bono.
         Law Offices of Scott C. Haith, Scott C. Haith, Terri R. Brown and D. Michael
Lyden for Defendants and Respondents City of West Hollywood and Bonnie Smith.
         Collins Collins Muir + Stewart, Eric Brown, Tomas A. Guterres and Kevin
Engelien for Defendants and Respondents County of Los Angeles and Michael Berbiar.


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                                        SUMMARY
       This appeal presents two issues: whether summary judgment for defendants
County of Los Angeles and Detective Michael Berbiar (county defendants) was proper
based on plaintiff Chad Padilla’s failure to comply with the Government Claims Act
(Gov. Code, § 810 et seq.), and whether the trial court properly granted terminating
sanctions based on plaintiff’s presentation of false declarations to the court, resulting in
dismissal of plaintiff’s claims against all defendants. Defendants City of West
Hollywood and Bonnie Smith (West Hollywood defendants) also ask us to impose
sanctions against plaintiff payable to the clerk of this court for taking a frivolous appeal.
       We affirm the judgment, but decline to consider the imposition of sanctions
against plaintiff.
                                           FACTS
       On October 5, 2010, plaintiff was arrested and his home in West Hollywood was
searched, pursuant to a search warrant, in connection with an investigation of “coupon
fraud.” (Plaintiff had previously been arrested on commercial burglary charges based on
the purchase of merchandise at a Walgreen store in El Segundo using allegedly
fraudulent coupons. That matter was resolved on December 1, 2010, when plaintiff was
“given a diversion . . . in exchange for three days of community service.”) Plaintiff says
that he was harassed by the county during the period after December 1, 2010, and that the
search of his home resulted in the seizure of computers, coupons, and other property that
was not returned to him until he obtained an order for its return on March 29, 2011.
       On March 11, 2011, plaintiff filed a claim for damages with defendant Los
Angeles County under Government Code section 911, stating the following basis of
liability against the county defendants:
               “Plaintiff was thrown in jail for a period of 36 hours for using what
       the West Hollywood Sheriff’s Department claimed were fraudulent
       coupons. As a result of these preposterous allegations, Plaintiff was
       humiliated in front of my neighbors, and other residents of the City of West
       Hollywood. Plaintiff was also defamed and suffered severe emotional
       distress. Lastly Plaintiff had a seizure while he was in jail because of all
       the stress of being arrested.”

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Plaintiff’s claim identified the “date and time of incident” as “October 5, 2010-October 6,
2010 at approximately 6:00 a.m. for a period of thirty six hours.”
       Plaintiff then filed separate lawsuits against county defendants, West Hollywood
defendants, and Walgreen Company and its employee Rouehna Bono (Walgreen). The
complaints are not in the appellate record, but it appears the cases were consolidated
(along with similar complaints filed by plaintiff’s domestic partner, Michael Harzinski),
and a first amended complaint (also not in the record) was filed in May 2011. Plaintiff
alleged a single cause of action for intentional infliction of emotional distress against the
West Hollywood defendants, relating to the county’s investigation of coupon fraud, and a
cause of action for defamation against defendant Walgreen, claiming Walgreen
employees made defamatory statements and posted defamatory fliers about plaintiff in
Los Angeles area Walgreen stores.
       Plaintiff conceded the county defendants were immune from liability for their
actions on October 5 and 6 and during their subsequent investigation of his alleged
coupon fraud. But he asserted he was harassed by the county (and says that was “the
main contention in [his] complaint”) after December 1, 2010, at which time he says there
was no ongoing criminal investigation (and therefore no immunity from suit).
       The county defendants sought summary judgment, on the ground the allegations of
plaintiff’s first amended complaint varied significantly from the basis of liability stated in
his government claim. The court granted summary judgment to the county defendants on
June 5, 2012. In its written order filed August 24, 2012, the court observed plaintiff’s
government claim stated he was harmed by a wrongful arrest (on October 5 at his
apartment) and detention that ended the following day, while his lawsuit alleged he was
harmed as a result of actions taken by the county defendants after December 2, 2010, at
various locations throughout the City of West Hollywood “that were not in connection to
an ongoing criminal investigation.” The court further noted that plaintiff conceded
county defendants were immune from liability for their actions on October 5 and 6. The
trial court concluded that the facts on which plaintiff based his cause of action for



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intentional infliction of emotional distress were not fairly reflected in his government
claim, and his complaint was subject to dismissal.
       Meanwhile, on May 25, 2012, the West Hollywood defendants filed a motion in
limine for terminating sanctions, and the county defendants and Walgreen joined in that
motion. Defendants asserted, among other things, that in opposition to the county
defendants’ motion for summary judgment, plaintiff submitted forged declarations from
Michael and Norma Van Arsdale. These forged declarations stated that the Van Arsdales
had witnessed certain harassing conduct by the county sheriff’s department in the
summer of 2011, when in fact they did not witness the events and had never been to
California. Defendant Walgreen further asserted plaintiff forged the declaration of a third
witness, Yngrid Padilla, plaintiff’s sister, in connection with his defamation claim.
       The county defendants sought and obtained commissions for out-of-state
depositions of the Van Arsdales. All three witnesses were deposed, and all confirmed the
declarations plaintiff had submitted were forged and the information in them was false.
Norma Van Arsdale also testified that plaintiff asked her “to disappear for a while” so
that she could not be subpoenaed.
       On September 13, 2012, the county defendants obtained an award of attorney fees
of $171,900 against plaintiff. The court found plaintiff was aware of the county’s
immunity, and chose to pursue different claims than in his government claim instead of
dismissing his claims. In addition, the court found plaintiff’s abuse of the discovery
process “further bolsters the fact the action was not maintained in good faith . . . .” (See
Code Civ. Proc., § 1038, subd. (a) [in civil proceedings under the Government Claims
Act, “[i]f the court should determine that the proceeding was not brought in good faith
and with reasonable cause, . . . the court shall render judgment in favor of [the party
opposing the proceeding] in the amount of all reasonable and necessary defense costs”].)
       A month later, the trial court granted the motion for terminating sanctions, striking
plaintiff’s complaints against all defendants. At the hearing, the court, after citing case
authorities for the court’s inherent power to impose terminating sanctions, said:



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       “This is such a case. Plaintiffs initially represented to the court that they had
evidence supporting their case in audio and video recordings. When the recordings were
to be produced in February 2012, plaintiffs represented to the court that a third party
assisting them with their electronic devices had deleted the recordings. At that time,
there was no evidence of fraud . . . .
       “In opposition to the summary judgment motions, plaintiffs submitted the
declaration of Michael Van Annsdale and Norma Van Annsdale, signed in Louisiana, and
the declaration of Yngrid Padilla signed in Florida. The declarations described incidents
supporting plaintiffs’ allegations in their complaints.
       “Depositions of these witnesses reveal that they did not sign the declarations[,]
that they gave no one authority to sign declarations on their behalf, and that they had no
personal knowledge relevant to the action and had not been in the State of California at
the relevant time.
       “Plaintiffs’ arguments that these witnesses had been coerced to change their
testimony are not credible. Yngrid Padilla purportedly changed her testimony, because
she had worked at Walgreen’s in the past and would like to work there in the future. It is
unlikely that truthful testimony in a California action would damage her application to
Walgreen’s at some unspecified time in the future. The remaining defendants . . . have
no reach into Florida to damage her, and she has no contact with California.
       “Similarly, the defendants would not have the capacity of harming the Van
Arsdales in Louisiana, and they have no regular contact with California. Making such
threats could lead to serious disciplinary action against the attorneys who purportedly
harassed the witnesses. It is not credible that the attorneys would engage in such
conduct, risking their careers as this is not a big case. It makes no ground-breaking law
and does not involve large sums of money.
       “Additionally, the declarations were signed by Michael Van Annsdale and Norma
Van Annsdale, when their names are actually Michael Van Arsdale and Norma Van
Arsdale. It is very unlikely that they would not only not notice . . . that their names were
misspelled, but would have signed an incorrect name.

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       “Viewing the depositions, it is clear that these witnesses were not in California at
the time of the incidents giving rise to these actions. . . . [T]hey were unaware of these
actions and their purported role in these actions until contacted by defendants’ attorneys.
       “There is additional evidence that plaintiffs advised witnesses they named to avoid
service of subpoena and not to respond to defendants’ attempt to contact them. Other
witnesses failed to attend their deposition . . . . Most disturbing, plaintiff maintained that
Yngrid Padilla and the Van Arsdales were . . . witnesses who were intimidated into
changing their testimony.
       “In this case, plaintiffs have listed witnesses who were not even in the State and
submitted declarations, which were clearly both false and forged. Evidence, witnesses
and testimony produced by plaintiffs cannot be trusted as they have engaged in such
egregious conduct. Instead of showing remorse for such actions, plaintiff continued to
maintain that they have evidence, witnesses and testimony to support their case. But
because of the outside forces, evidence has disappeared and witnesses have changed their
testimony. Terminating sanctions granted.”
       The court ordered the case against all defendants dismissed on October 16, 2012,
and judgment in favor of the county defendants was entered on October 31, 2012.
Plaintiff filed a notice of appeal on October 29, 2012.1
                                       DISCUSSION
       1.     Failure to Comply With the Government Claims Act
       The substance of plaintiff’s argument seems to be that he complied with the
Government Claims Act because all of his claims “stem from the October 5, 2010
incident” when his “home was raided . . . and . . . property confiscated for committing
purported coupon fraud.” He says that his property was “wrongfully withheld post
December 1, 2010,” and he is “seeking redress for the unlawful seizure of his property

1       The county defendants argue that plaintiff appealed from the order granting
summary judgment (entered October 16, 2012) rather than from the judgment (entered
October 31, 2012), and that an order granting summary judgment is not appealable. We
will treat the appeal as having been taken from the subsequent judgment. (Aguilar v.
Universal City Studios, Inc. (1985) 174 Cal.App.3d 384, 387, fn. 1.)

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from December 1, 2010 to the date it was returned on March 30, 2011 . . . .” (He also
says that the “main contention” in his complaint is that he was harassed by the county
defendants.) Plaintiff contends the county in its demurrers to his complaint
“unequivocally admitted” that plaintiff complied with the Government Claims Act, and
that judicial estoppel applies to prevent the county from taking contradictory positions in
the same proceeding.
       We reject plaintiff’s contention for multiple reasons.
       First, the county’s demurrers are not in the record, so we cannot assess plaintiff’s
assertions. But in a demurrer, the demurring defendant admits nothing; the plaintiff’s
allegations are assumed to be true. And, even if the county defendants had taken an
inconsistent position, judicial estoppel would not apply, as the county’s demurrers did not
succeed. (See MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co., Inc.
(2005) 36 Cal.4th 412, 422 [judicial estoppel applies when, among other things, the same
party has taken two positions in judicial proceedings, the two positions are “totally
inconsistent,” and the party was successful in asserting the first position].) Moreover,
judicial estoppel is an equitable doctrine and “its application, even where all necessary
elements are present, is discretionary.” (Ibid.)
       Second, the pertinent question is whether plaintiff’s complaint “ ‘allege[d] a
factual basis for recovery which is not fairly reflected in the written claim.’ [Citation.]”
(Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34
Cal.4th 441, 447 (Stockett).) It clearly did.
       Under the Government Claims Act, each cause of action in a complaint against a
public entity must be “presented by a claim complying with [Government Code] section
910,” and section 910 “requires the claimant to state the ‘date, place and other
circumstances of the occurrence or transaction which gave rise to the claim asserted.’ ”
(Stockett, supra, 34 Cal.4th at p. 447, quoting § 910, subd. (c).) “If the claim is rejected
and the plaintiff ultimately files a complaint against the public entity, the facts underlying
each cause of action in the complaint must have been fairly reflected in a timely claim.”
(Stockett, at p. 447.)

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       While the claim “need not specify each particular act or omission later proven to
have caused the injury,” the complaint may not be based on an “ ‘entirely different set of
facts.’ [Citation.]” (Stockett, supra, 34 Cal.4th at p. 447.) “Only where there has been a
‘complete shift in allegations, usually involving an effort to premise civil liability on acts
or omissions committed at different times or by different persons than those described in
the claim’ have courts generally found the complaint barred.” (Ibid.)
       Here, plaintiff’s government claim stated he was harmed by a wrongful arrest (on
October 5 at his apartment) and detention that ended the following day. As the trial court
stated, however, plaintiff’s lawsuit “seeks money or damages as a result of actions taken
by the County Defendants after December 2, 2010 at various locations throughout the
city of West Hollywood that were not in connection to an ongoing criminal
investigation.” Thus, plaintiff clearly made a “ ‘complete shift in allegations,’ ”
attempting to premise the county’s liability for intentional infliction of emotional distress
“on acts or omissions committed at different times . . . than those described in [plaintiff’s
government] claim.” (Stockett, supra, 34 Cal.4th at p. 447.) In short, we agree with the
trial court’s conclusion that “the facts upon which [plaintiff] bases his cause of action for
intentional infliction of emotional distress are not fairly reflected within his Government
Claim . . . .” Consequently, summary judgment for the county defendants was proper.
       In his reply brief, plaintiff for the first time argues that this court should construe
his appeal to include a challenge to the award of attorney fees to the county defendants.
We do not consider contentions raised for the first time in a reply brief. (Scott v. CIBA
Vision Corp. (1995) 38 Cal.App.4th 307, 322 [“We do not entertain issues raised for the
first time in a reply brief, in the absence of a showing of good cause why such issues
were not raised in the opening brief.”].) Plaintiff made no showing of good cause, and so
we disregard the issue. (Ibid.)




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          2.     The Terminating Sanctions
          Plaintiff contends the trial court abused its discretion when it granted terminating
sanctions. We disagree.2
          “[W]hen a plaintiff’s deliberate and egregious misconduct makes any sanction
other than dismissal inadequate to ensure a fair trial, the trial court has inherent power to
impose a terminating sanction.” (Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155
Cal.App.4th 736, 740 (Slesinger).) “The decision whether to exercise the inherent power
to dismiss requires consideration of all relevant circumstances, including the nature of the
misconduct (which must be deliberate and egregious, but may or may not violate a prior
court order), the strong preference for adjudicating claims on the merits, the integrity of
the court as an institution of justice, the effect of the misconduct on a fair resolution of
the case, and the availability of other sanctions to cure the harm. . . . We do not attempt
to catalogue all the factors that must be considered in any particular case, except to
emphasize that dismissal is always a drastic remedy to be employed only in the rarest of
circumstances. We also do not attempt to catalogue the types of misconduct necessary to
justify an exercise of the inherent power to dismiss, because ‘corrupt intent knows no
stylistic boundaries.’ ” (Id. at p. 764, citations & fn. omitted.)
          In considering whether the trial court properly exercised its inherent power to
dismiss a case for misconduct, our review is for abuse of discretion. (Slesinger, supra,
155 Cal.App.4th at p. 765.) “We view the entire record in the light most favorable to the
court’s ruling, and draw all reasonable inferences in support of it. [Citation.] We also
defer to the trial court’s credibility determinations. [Citation.] The trial court’s decision
will be reversed only ‘for manifest abuse exceeding the bounds of reason.’ [Citation.]”
(Ibid.)

2      The West Hollywood defendants assert plaintiff’s appeal should be dismissed as
procedurally defective because plaintiff’s opening brief does not cite record references as
to “where evidence appears that the trial court abused its discretion” in granting
terminating sanctions. But plaintiff does cite evidence he asserts shows an abuse of
discretion. In fact, it does not, but that is a matter of substance, not procedure.


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       In this case, plaintiff claims the court did not consider “all relevant circumstances”
(Slesinger, supra, 155 Cal.App.4th at p. 764), but rather, abused its discretion and
violated due process of law by “ignor[ing] and disregard[ing]” evidence proving that his
sister and the Van Arsdales “lied” and “knew everything” about the facts of this case
before they spoke to county defendants about the case. This contention is meritless.
There is nothing in the record to suggest the court did not consider all the evidence
properly submitted, and questions of credibility are for the trial court, not this court. (Id.
at p. 765.) In any event, our review of the record confirms that the evidence plaintiff
cites – an email from his sister and excerpts from the depositions of the three witnesses –
contain no material inconsistencies. In short, it is clear from their testimony that plaintiff
presented forged and fabricated declarations to the court, advised witnesses to avoid
service of subpoena and not to respond to defendants’ attempt to contact them, and
falsely maintained the witnesses were intimidated by defendants into changing their
testimony.
       We can find no abuse of discretion in the court’s finding that plaintiff’s conduct
was sufficiently egregious to merit striking his complaint and dismissing his case.
Plaintiff’s conduct was “deliberate and egregious,” and is surely an offense to “the
integrity of the court as an institution of justice.” (Slesinger, supra, 155 Cal.App.4th at
p. 764.) As the trial court noted, “evidence, witnesses and testimony produced by
plaintiffs cannot be trusted as they have engaged in such egregious conduct. Instead of
showing remorse for such actions, plaintiff continued to maintain that they have
evidence, witnesses and testimony to support their case.” This misconduct met the
standard set in Slesinger: “deliberate and egregious misconduct [that] makes any
sanction other than dismissal inadequate to ensure a fair trial . . . .” (Id. at p. 740.)
Accordingly, the trial court did not abuse its discretion in dismissing the case.
       3.     Motion for Sanctions
       The West Hollywood defendants ask us to impose sanctions payable to the clerk
of the court under California Rules of Court, rule 8.276(a)(1) and (2) (authorizing a Court
of Appeal to impose sanctions on a party or attorney for “[t]aking a frivolous appeal or

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appealing solely to cause delay” and for “[i]ncluding in the record any matter not
reasonably material to the appeal’s determination”). “The court must give notice in
writing if it is considering imposing sanctions.” (Rule 8.276(c).) We decline to exercise
our discretion to consider the imposition of sanctions in this case.
                                      DISPOSITION
       The judgment and order of dismissal are affirmed. The motion for sanctions is
denied. Defendants shall recover their costs on appeal.




                                                          GRIMES, J.


       We concur:
                     BIGELOW, P. J.




                     FLIER, J.




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