Stanford Law School - Robert Crown Law Library

Filed 5/28/09

IN THE SUPREME COURT OF CALIFORNIA

BONNIE HERNANDEZ, as Administrator, )
etc., et al.
Plaintiffs and Appellants,
S149499
v.
Ct.App. 2/7 B182437
CITY OF POMONA et al.,
Los Angeles County
Defendants and Respondents. )
Super. Ct. No. KC043657

We granted review in this case to consider the following question: When a
federal court enters judgment in favor of the defendants on a civil rights claim
brought under 42 United States Code section 1983 (section 1983), in which the
plaintiffs seek damages for police use of deadly and constitutionally excessive
force in pursuing a suspect, and the court then dismisses a supplemental state law
wrongful death claim arising out of the same incident, what, if any, preclusive
effect does the judgment have in a subsequent state court wrongful death action?
Based on principles of issue preclusion (collateral estoppel), the Court of Appeal
held in this case that the federal judgment precludes plaintiffs from recovering on
the theory that the police officers failed to exercise reasonable care in using deadly
force, but does not preclude plaintiffs from recovering on the theory that the
officers failed to exercise reasonable care in creating, through their preshooting
conduct, a situation in which it was reasonable for them to use deadly force. The
Court of Appeal therefore reversed the judgment that the trial court entered for the
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officers and their employer based on the federal judgment. As explained below,
we hold that on the record and conceded facts here, the federal judgment
collaterally estops plaintiffs from pursuing their wrongful death claim, even on the
theory that the officers‟ preshooting conduct was negligent. We therefore reverse
the Court of Appeal‟s judgment.
FACTUAL AND PROCEDURAL BACKGROUND1
Before dawn on January 16, 2001, City of Pomona (Pomona) Police Officer
Dennis Cooper was patrolling a neighborhood in a marked black-and-white police
vehicle when he saw a gray Ford Thunderbird approach from the other direction
with its headlights unilluminated. The Thunderbird abruptly pulled over to the
curb and stopped with its engine running. Cooper engaged his overhead lights and
pulled his car to within about 10 feet of the stopped Thunderbird, facing it. He
saw two individuals inside the Thunderbird and ordered them to exit. The driver
complied, putting up his hands, opening his door, and exiting. The passenger,

1
Because this appeal arises in connection with a demurrer, we look to the
“properly pleaded factual allegations” of the operative complaint “read in light of”
any “judicially noticeable facts” and “factual concessions” of the plaintiff. (Evans
v. City of Berkeley (2006) 38 Cal.4th 1, 21.) Plaintiffs‟ complaint sets forth
virtually no facts regarding the events giving rise to this lawsuit. However,
plaintiffs have detailed the relevant facts at both oral argument and in the briefs
they submitted to us and to the Court of Appeal, and plaintiffs‟ counsel conceded
at oral argument that the evidence plaintiffs would present if permitted to go to
trial would be the same as the evidence they presented in federal court. On this
record, we may properly treat plaintiffs‟ representations regarding the facts as
factual concessions, and we base both our statement of facts and our substantive
analysis on these conceded facts. (See Evans, supra, at pp. 20-22; see also
Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1152 [treating
facts stated in brief as admissions for purposes of determining whether leave to
amend should have been granted]; Moore v. Powell (1977) 70 Cal.App.3d 583,
586, fn. 2 [“factual statement in a brief may be treated as an admission or
stipulation when adverse to the party making it”].)
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decedent George Hernandez, did not comply. Instead, he slid into the vacant
driver‟s seat and, with the headlights unilluminated, drove off in the direction from
which the Thunderbird had come.
Cooper began pursuing Hernandez in the car. Officers Humberto Sanchez,
Anthony Luna, Robert Devee and Edgar Padilla joined the pursuit in other police
vehicles, including a K-9 unit driven by Luna. Hernandez led the officers on a
high-speed chase through city streets that lasted about 18 minutes and ended when
Hernandez crashed and the car came to rest in the middle of the street.
After crashing, Hernandez exited his car and started running away. Cooper,
followed closely by Sanchez, pursued Hernandez on foot. Eventually, Hernandez
slowed down and stopped. According to one witness, Hernandez, with his back to
Cooper, lifted his shirt to expose his waistline and, while turning around, yelled
that he did not have a gun. According to Cooper, Hernandez, after reaching
toward his front right pocket, spun towards him yelling, “I got a gun, I got a gun.”
Startled, Cooper reached for his weapon, but discovered he had lost it. He spun
around, covered his head, and ran away screaming to Sanchez: “Shoot him.
Shoot him, Bert. He‟s got a gun. He‟s going to kill me.” As Cooper ran, he
broadcast over his radio that Hernandez had brandished a firearm. Hearing
Cooper, Luna released the police dog and, with Devee and Padilla, joined the foot
pursuit.
Hernandez spun around and started running away again. Sanchez, who was
now leading the chase, had an open shot at Hernandez, but decided not to take it
because Hernandez was facing away and did not pose an immediate threat.
Instead, Sanchez chased Hernandez, yelling at him to stop. He was followed by
the other officers, including Cooper, who had rejoined the pursuit after finding his
weapon.
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Ignoring Sanchez‟s order to stop, Hernandez kept running and fled around
the corner of a building. The police dog passed Sanchez as they rounded the
corner of the building, caught up to Hernandez, struck him in the shoulder, and
spun him around. According to Sanchez, as the dog was striking Hernandez,
Hernandez reached towards his waistband, yelling either “I got a gun” or “Gun.”
In response, Sanchez fired his weapon at Hernandez. As the other officers
rounded the corner of the building, they heard shots and assumed Sanchez was in a
gun battle with Hernandez. All but Padilla fired at Hernandez. The officers fired
37 shots in all, hitting Hernandez 22 times and killing him. Hernandez was
unarmed.2
In September 2001, Hernandez‟s parents, both individually and as
administrators of his estate, and his seven minor children, by and through their
guardians ad litem (collectively, plaintiffs), filed a complaint in federal court
seeking damages in connection with his death. As here relevant, the complaint
asserted a section 1983 claim against the officers, alleging they had violated
Hernandez‟s rights under “the Fourth and Fourteenth Amendments of the United
States Constitution[] to be free from unreasonable seizures and excessive force by

2
In setting forth these facts in their Court of Appeal brief, plaintiffs cited to
the federal court‟s order granting Sanchez‟s posttrial motion for judgment as a
matter of law. At defendants‟ request, the trial court took judicial notice of this
order, and the order is part of the appellate record. It sets forth the following
additional facts of interest: An autopsy revealed that Hernandez had
methamphetamine in his system. During the vehicle pursuit, the Thunderbird
fishtailed as it weaved in and out of traffic at speeds estimated to be in excess of
100 miles per hour, struck a curb and another vehicle, ran several red lights and
nearly hit a pedestrian. The vehicle chase ended when Hernandez tried to make a
high-speed turn, lost control of his car, and crashed into a newsstand and then a
bus stop. We set forth these additional facts merely to fill out the evidentiary
presentation during the federal trial; we do not rely on them in our analysis. We
note, however, that plaintiffs have never disputed any of them.
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police officers.” The complaint also asserted a section 1983 claim against
Pomona, alleging in part that it was liable for the officers‟ actions because it (1)
“maintained a system of grossly inadequate training pertaining to the use of
firearms” and “the proper tactics for managing scenarios involving mentally
unstable, emotionally distraught and otherwise psychologically incapacitated
persons,” and (2) “[a]t the time of the shooting . . . had in place, and had ratified,
policies, procedures, customs and practices of” its police department that
“permitted and encouraged their officers and officials to unjustifiably,
unreasonably and in violation of the Fourth Amendment[], shoot unarmed suspects
and specifically individuals of Mexican ancestry, Hispanics, Latinos, as well as
members of other minority groups.” The complaint also included a wrongful
death claim under California law, which alleged that the officers had acted
“negligently, violently and without due care,” “cause or provocation” in killing
Hernandez; that the shooting had “occurred as a result of the absence of due care
for the safety of others and constituted an unreasonable, unwarranted, and
excessive use of force”; and that Pomona had “failed to adequately train,
supervise, discipline or in any other way control” the officers “in the exercise of
their unlawful use of excessive and lethal force” and, by “knowingly and
negligently fail[ing] to enforce [California] laws” and police “regulations,” had
“creat[ed]” in the police department “an atmosphere of lawlessness in which
[p]olice officers employ excessive and illegal force and violence . . . in the belief
that such acts will be condoned and justified by their supervisors.”3
The federal district court bifurcated the state and federal claims and only
the latter went to trial. By special verdict, the jury found that Cooper, Devee and

3
The federal complaint indicates that plaintiffs asserted the wrongful death
claim only “as to Defendants City of Pomona, and Does 6 through 10.”
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Luna had not “violate[d]” Hernandez‟s “Fourth and Fourteenth Amendment rights
by using excessive force against him.” The jury could not reach a verdict
regarding Sanchez.4 Sanchez then moved for judgment as a matter of law, based
on qualified immunity. The court granted the motion, finding that because
Sanchez‟s “use of deadly force was reasonable under the circumstances,” he “did
not violate Hernandez‟s Fourth Amendment rights.” The court reasoned: “Faced
with a fleeing suspect that he reasonably believed to be armed and likely to fight
back, given Cooper‟s screams that Hernandez was about to shoot him and that he
had bran[d]ished a firearm, Officer Sanchez found himself in a situation that he
reasonably believed would threaten his life if he did not act immediately. . . . To
hold [that his use of deadly force was not reasonable under the circumstances]
would force Officer Sanchez to risk looking down the muzzle of a barrel before he
could act to protect himself.” The court alternatively held that “even assuming
Officer Sanchez had violated Hernandez‟s Fourth Amendment rights,” he “is
entitled to qualified immunity” because he “was not plainly incompetent,” he did
not “knowingly violate the law,” and he “reasonably could have believed that his
conduct was lawful under the circumstances.”5
Based on its order granting Sanchez‟s motion and the jury‟s verdict in favor
of the other officers, the federal court ordered that all “[d]efendants shall have

4
According to the parties‟ briefs in the Court of Appeal, plaintiffs dismissed
all claims against Padilla before the federal trial.
5
At the time of the federal trial, high court precedent required the trial court
first to decide whether Sanchez had violated Hernandez‟s constitutional rights, and
then to decide the immunity question. (Saucier v. Katz (2001) 533 U.S. 194, 201
(Saucier).) The high court recently changed this rule, holding that trial courts may
decide the immunity question before (or without) determining whether there was a
constitutional violation. (Pearson v. Callahan (2009) __ U.S.__ [129 S.Ct. 808,
815-822].)
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judgment on their claims for excessive force under the Fourth and Fourteenth
Amendments.” A few days later, it “dismisse[d] without prejudice all of
Plaintiffs‟ remaining state law claims,” explaining that it was “declin[ing] to
exercise supplemental jurisdiction over” those claims inasmuch as “the [federal]
claims over which it ha[d] original jurisdiction [had been] dismissed.”
Plaintiffs then filed this action in the superior court against the same
defendants. As here relevant, the complaint included a wrongful death claim
based on the same allegations plaintiffs had set forth in the wrongful death claim
of their federal complaint.6
Defendants demurred to the complaint, arguing in relevant part that the
federal proceedings “bar the instant action on the grounds of collateral estoppel.”
They asserted that in the federal action, the issue of excessive and unreasonable
force had been determined in their favor, and that this determination “collaterally
estop[s]” plaintiffs “from raising” their wrongful death claim. In opposing the
demurrer, plaintiffs argued that collateral estoppel does not apply because
“reasonableness” for purposes of a section 1983 claim is not the same as
“reasonableness” under state negligence law.
The trial court agreed with defendants in part, explaining: “[D]efendants
have had a factual finding by [j]udge or [j]ury in their favor that excessive force
was not used in the shooting, i.e., [t]hat the deadly force used was „objectively
reasonable‟ under the circumstances. Therefore, this issue is res judicata, and
collateral estoppel precludes relitigation of this same issue in this action.” The
court overruled the demurrer, however, because it concluded that the federal court

6
Like the federal complaint, the complaint plaintiffs filed in state court
indicates that they are asserting the wrongful death claim only “as to Defendants
City of Pomona, and Does 6 through 10.”
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judgment did not preclude plaintiffs from recovering on the theory that defendants
failed to summon medical aid and prevented aid from being rendered once
available. The court explained: “Although such allegations were contained in
those causes of action tried in [f]ederal [c]ourt, no specific findings were made on
such issues, and the [federal judgment is] not res judicata.”
Plaintiffs, to expedite their appeal from the trial court‟s ruling that the
federal judgment precluded them from proceeding on their allegations that
defendants acted unreasonably in shooting Hernandez, agreed to “strike and
dismiss, with prejudice,” their wrongful death claim insofar as it was based on
allegations that defendants failed to summon, and prevented the rendering of,
medical aid. Based on this agreement, the parties asked the court to enter final
judgment. The court granted the request, dismissed the wrongful death claim with
prejudice, and entered judgment in favor of all defendants.7
The Court of Appeal reversed the judgment. Based on principles of
collateral estoppel, it first held that the federal judgment precludes plaintiffs from
recovering on the theory that the officers failed to exercise reasonable care in
using deadly force, explaining that “[w]hether the officers acted with reasonable
care is precisely the issue resolved by the federal jury and the trial court when
each specifically concluded from the perspective of a reasonable officer on the

7
Plaintiffs‟ state court complaint identified Padilla as a defendant. However,
because of plaintiffs‟ stated intent to dismiss Padilla, the trial court limited its
ruling on the demurrer to the other officers and Pomona. The parties‟
subsequently disposed of the claim against Padilla by stipulation and the trial
court, based on that stipulation, ordered entry of final judgment in favor of all
defendants, including Padilla. The Court of Appeal‟s opinion did not mention
Padilla, and stated that the only individual defendants are “the four officers
involved in the shooting.” It thus appears that Padilla is no longer a party to these
proceedings.
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scene, taking into account the facts and circumstances confronting them, the
officers‟ conduct was objectively reasonable.” It then held, however, that
plaintiffs could proceed on the theory that the officers failed to use reasonable care
in creating, through their preshooting conduct, a situation in which it was
reasonable for them to use deadly force. The court reasoned that neither the jury‟s
special verdict nor the federal court‟s posttrial ruling regarding Sanchez addressed
this issue. After expressing “doubt” that plaintiffs‟ complaint adequately alleged a
pre-seizure negligence theory of liability, the Court of Appeal reversed the trial
court‟s judgment and remanded the cause to permit plaintiffs to file an amended
complaint alleging that theory.8
We then granted defendants‟ petition for review.
DISCUSSION

“Collateral estoppel precludes relitigation of issues argued and decided in
prior proceedings. [Citation.] Traditionally, we have applied the doctrine only if
several threshold requirements are fulfilled. 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 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. [Citations.]” (Lucido v. Superior Court (1990) 51
Cal.3d 335, 341, fn. omitted (Lucido).)

8
Before discussing issue preclusion, the Court of Appeal considered whether
principles of claim preclusion bar plaintiffs‟ claim. In light of our conclusion, we
need not consider that question.
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Of these elements, the only one here in dispute is the first: whether the
issues as to which defendants assert preclusion are identical to issues decided in
the earlier federal court proceeding involving plaintiffs‟ section 1983 claim. As
previously noted, the Court of Appeal found this requirement satisfied insofar as
plaintiffs now allege that the officers failed to exercise reasonable care in using
deadly force, but not insofar as plaintiffs might allege that the officers failed to
exercise reasonable care in creating, through their preshooting conduct, a situation
in which it was reasonable for them to use deadly force. Plaintiffs challenge the
former finding and defendants challenge the latter.
For purposes of collateral estoppel, an issue was actually litigated in a prior
proceeding if it was properly raised, submitted for determination, and determined
in that proceeding. (People v. Sims (1982) 32 Cal.3d 468, 484.) In considering
whether these criteria have been met, courts look carefully at the entire record
from the prior proceeding, including the pleadings, the evidence, the jury
instructions, and any special jury findings or verdicts. (Turner v. Arkansas (1972)
407 U.S. 366, 368-369; Clark v. Lesher (1956) 46 Cal.2d 874, 880-881; Murphy v.
Murphy (2008) 164 Cal.App.4th 376, 400-401; U.S. v. Cala (2d Cir. 1975) 521
F.2d 605, 607-608; In re Henicheck (Bankr. E.D.Va. 1995) 186 B.R. 211, 215.)
“The „identical issue‟ requirement addresses whether „identical factual allegations‟
are at stake in the two proceedings, not whether the ultimate issues or dispositions
are the same. [Citation.]” (Lucido, supra, 51 Cal.3d at p. 342.)
1. Whether The Officers Used Reasonable Care In Using Deadly

Force.
The record here demonstrates that in plaintiffs‟ federal action, the issue of
whether the officers exercised reasonable care in using deadly force was raised,
submitted for decision, and actually decided against plaintiffs in resolving their
section 1983 claim. The 1983 claim in plaintiffs‟ federal court complaint alleged
in part that the officers “shot and killed” Hernandez “without reasonable cause,”
and that the shooting was “unreasonable” and “entirely unjustified by”
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Hernandez‟s “actions.” During the federal trial, the officers testified at length
about the circumstances leading up to and surrounding the shooting. In relevant
part, the jury instructions regarding the section 1983 claim stated the following:
(1) “[a] law enforcement officer has the right to use such force as is reasonably
necessary under the circumstances to make a lawful arrest,” and “[a]n
unreasonable seizure occurs when a law enforcement officer uses excessive force
in making a lawful arrest”; (2) “[t]he use of deadly force is only justified when a
reasonable law enforcement officer would reasonably believe that there was an
immediate threat to the safety of the officer or others at the time the force was
used”; (3) “[w]hether force is reasonably necessary or excessive is measured by
the force a reasonable and prudent law enforcement officer would use under the
circumstances”; (4) “[t]he reasonableness inquiry . . . is an objective one,” and
“[t]he reasonableness of the use of force should be judged” “in light of the facts
and circumstances confronting” the police “from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of hindsight”; (5) “[s]ome of
the things you may want to consider in determining whether the defendant used
excessive force are the severity of the crime at issue, whether the plaintiff posed a
reasonable threat to the safety of the officer or others, and whether the plaintiff
was actively resisting detention or attempting to escape”; and (6) “[i]n deciding
whether excessive force was used, you should consider the totality of the
circumstances at the time.” As noted above, based on these instructions, the jury,
by special verdict, found that Cooper, Devee and Luna had not “violate[d]”
Hernandez‟s “Fourth and Fourteenth Amendment rights by using excessive force
against him.” As also noted above, in later granting Sanchez‟s posttrial motion for
judgment, the federal court found that Sanchez‟s “use of deadly force was
reasonable under the circumstances,” because he “found himself in a situation that
he reasonably believed would threaten his life if he did not act immediately.”
In the wrongful death claim now at issue, plaintiffs allege that the officers
acted “without due care,” “cause or provocation” in killing Hernandez, that “[t]he
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shooting . . . occurred as a result of the absence of due care for the safety of others
and constituted an unreasonable, unwarranted, and excessive use of force,” and
that the officers “unreasonably and unjustifiably killed . . . Hernandez without
cause or provocation.” On this record, the Court of Appeal correctly concluded
that with respect to the actual shooting, the negligence issue in plaintiffs‟ wrongful
death claim — “whether the officers acted with reasonable care” in shooting
Hernandez — “is precisely the issue resolved [against plaintiffs] by the federal
jury and the trial court when each specifically concluded from the perspective of a
reasonable officer on the scene, taking into account the facts and circumstances
confronting them, the officers‟ conduct was objectively reasonable.”
In arguing otherwise, plaintiffs assert that the standard of reasonableness
applicable in a section 1983 action based on excessive force “is not the same” as
the standard of reasonableness applicable in a negligence action under California
law. According to plaintiffs, the Fourth Amendment standard “focuses the
analysis on balancing the concerns of the government with the extent of the
intrusion,” whereas the California standard involves no such balancing and
“focuses” only “on the reasonably prudent person.” Moreover, plaintiffs assert,
quoting Harris v. Grimes (2002) 104 Cal.App.4th 180 (Harris), Lucas v. County
of Los Angeles (1996) 47 Cal.App.4th 277 (Lucas), and Mattson v. City of Costa
Mesa (1980) 106 Cal.App.3d 441 (Mattson), reasonableness under section 1983
and reasonableness under state negligence law “ „are not the same‟ ” in that a
section 1983 violation requires “ „a state of mind more blameworthy‟ ” than that
required for negligence; “ „[t]o be entitled to relief under section 1983, [a] plaintiff
must . . . show intentional conduct in circumstances in which the offending
governmental employees were legally bound to know that their conduct would
deprive the plaintiff of civil rights.‟ ”
Plaintiffs‟ arguments are unpersuasive. Contrary to plaintiffs‟ assertion, the
United States Supreme Court has never suggested that a fact finder, in determining
whether a particular seizure was reasonable, should conduct a balancing of
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governmental and private interests. Instead, the high court has itself conducted
this balancing in (1) concluding that police may not “use . . . deadly force to
prevent the escape of all felony suspects, whatever the circumstances,” (2)
announcing the applicable standard of reasonableness, i.e., whether police had
probable cause to believe the suspect posed a threat of serious physical harm to
themselves or to others, and (3) enumerating the factors that must be considered in
determining whether a challenged seizure was reasonable. (Tennessee v. Garner
(1985) 471 U.S. 1, 11-12; see also Scott v. Harris (2007) __ U.S. __ [127 S.Ct.
1769, 1778-1779]; Graham v. Connor (1989) 490 U.S. 386, 396-397 (Graham).)
Consistent with these principles and the factors the high court has identified, the
federal court in this case did not instruct the jury to conduct some abstract or
nebulous balancing of competing interests. Instead, as noted above, it instructed
the jury to determine the reasonableness of the officers‟ actions in light of “the
totality of the circumstances at the time,” including “the severity of the crime at
issue, whether the plaintiff posed a reasonable threat to the safety of the officer or
others, and whether the plaintiff was actively resisting detention or attempting to
escape.” The same consideration of the totality of the circumstances is required in
determining reasonableness under California negligence law. (See Commercial
Union Assur. Co. v. Pacific Gas & Elec. Co. (1934) 220 Cal. 515, 522 [jury‟s
“duty” in a negligence action is to “determin[e] whether under all the facts and
surrounding circumstances,” the conduct in question “was that of persons of
ordinary prudence and discretion”].) Moreover, California‟s civil jury instructions
specifically direct the jury, in determining whether police officers used
unreasonable force for purposes of tort liability, to consider the same factors that
the high court has identified and that the federal court‟s instructions in this case set
forth. (Judicial Council of Cal. Civ. Jury Instns. (2008) CACI No. 1305.) Thus,
plaintiffs err in arguing that the federal and state standards of reasonableness differ
in that the former involves a fact finder‟s balancing of competing interests.
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Plaintiffs‟ effort to differentiate the two standards also fails insofar as it
rests on an asserted difference between the requisite mental states. As to
plaintiffs‟ section 1983 action, the federal court‟s instructions explained that the
standard of reasonableness is “an objective one” and directed the jury to determine
the reasonableness of the officers‟ actions “objectively” and “without regard to
their underlying intent or motivation.” These instructions were consistent with
binding high court precedent, which states: “[T]he „reasonableness‟ inquiry in an
excessive force case is an objective one: the question is whether the officers‟
actions are „objectively reasonable‟ in light of the facts and circumstances
confronting them, without regard to their underlying intent or motivation.
[Citations.] An officer‟s evil intentions will not make a Fourth Amendment
violation out of an objectively reasonable use of force; nor will an officer‟s good
intentions make an objectively unreasonable use of force constitutional.
[Citation.]” (Graham, supra, 490 U.S. at p. 397, italics added.) On this record,
plaintiffs are incorrect in asserting that, because the reasonableness standard at
issue in the section 1983 action involved “ „a state of mind more blameworthy‟ ”
than the reasonableness standard under California negligence law, issue preclusion
does not apply.9

9
It is true that there may be liability under section 1983 only if the acts
constituting the seizure were “willful” in the sense that they were not
“unknowing” or “accidental.” (Brower v. County of Inyo (1989) 489 U.S. 593,
596 (Brower).) In other words, “[v]iolation of the Fourth Amendment requires an
intentional acquisition of physical control” (ibid.), i.e., “a governmental
termination of freedom of movement through means intentionally applied.” (Id. at
p. 597, italics omitted.) Consistent with these principles, the federal court here
instructed the jury that it was plaintiffs‟ burden to prove, among other things, that
“the acts or omissions of the defendant[s] were intentional.” In the federal action,
plaintiffs never alleged or argued that the officers‟ acts were not intentional or
willful in this sense. On the contrary, in their section 1983 claim, they alleged that
the shooting was “willful.” Nothing indicates there was any evidence presented in
the federal trial to suggest that the shooting was accidental. And, in granting

(footnote continued on next page)
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The decisions plaintiffs cite — Lucas, Mattson, and Harris — do not
require a different conclusion. The court in Lucas did not, as plaintiffs assert,
broadly hold that “[r]easonable conduct under a [federal] civil rights violation is
different from a negligence action because a civil rights violation „describes a state
of mind more blameworthy.‟ ” Rather, the Lucas court reached the far narrower
conclusion that the particular constitutional violation there alleged as the basis for
the section 1983 claim — failing to render medical care to an inmate — required
proof of “deliberate indifference,” and that “this standard . . . describes a state of
mind more blameworthy” than “[m]ere negligence.” (Lucas, supra, 47
Cal.App.4th at p. 287.) The constitutional violation plaintiffs alleged here in their
section 1983 claim was different and involved a standard of reasonableness, not
deliberate indifference.
In Mattson, which involved an excessive force claim, the court, in holding
that a prior federal judgment did not have preclusive effect as to “the issues of lack
of probable cause and excessive force,” reasoned: “From the record before us it
appears possible that the federal jury determined no more than that defendants . . .
lacked the requisite mens rea.” (Mattson, supra, 106 Cal.App.3d at pp. 445-446.)
The record before us does not leave open this possibility because, as explained
above, the federal court followed high court precedent and instructed the jury to

(footnote continued from previous page)

Sanchez‟s posttrial motion for judgment, the federal court expressly found that
Sanchez fired because he saw Hernandez reaching toward his waistband and
yelling either “I got a gun” or “gun,” and the other officers fired because they
heard the shots as they approached and assumed Sanchez was involved in a gun
battle with Hernandez. Thus, the federal judgment clearly rested on findings that
the officers acted reasonably, not on findings that they fired unknowingly or
accidentally.
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determine reasonableness “without regard to [the officers‟] underlying intent or
motivation.”10

10
Because the Mattson court, applying claim preclusion principles, held that
an earlier federal judgment barred the plaintiff‟s state law claims (Mattson, supra,
106 Cal.App.3d at pp. 446-456), its discussion of issue preclusion, including the
“mens rea” required for recovery under section 1983, was dictum. Moreover, in
its opinion, the court nowhere mentioned the jury instructions in the federal case
or otherwise identified the legal principles the federal court actually instructed the
jury to apply. Instead, it appears to have based its “mens rea” standard on an
abstract reading of case law. (Mattson, supra, 106 Cal.App.3d at p. 446.) In
setting forth that standard — “intentional conduct in circumstances in which the
[police] were legally bound to know that their conduct would deprive the plaintiff
of civil rights” (ibid.) — the court seemingly combined two distinct inquiries
relevant to recovery: (1) whether a constitutional violation occurred, because the
force used was not objectively reasonable; and (2) whether the officer, though
committing a constitutional violation by using excessive force, is nevertheless
immune from liability. (See Saucier, supra, 533 U.S. at pp. 202-206.) As already
explained, regarding the first inquiry — reasonableness — although an officer‟s
actions must have been intentional in the sense they were not “unknowing” or
“accidental” (Brower, supra, 489 U.S. at p. 596), the officer‟s underlying intent
and motivation are not determinative (Saucier, supra, 533 U.S. at p. 210). The
second inquiry — immunity — focuses directly on whether the police were, to
quote Mattson, “legally bound to know that their conduct would deprive the
plaintiff of civil rights.” (Mattson, supra, at p. 446; see Saucier, supra, 533 U.S.
at p. 202 [officer immune unless “the law . . . put [him] on notice that his conduct
would be clearly unlawful,” i.e., “it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted”].) The record here
demonstrates that the federal jury was not asked to consider immunity, and that its
verdict rested only on a finding of reasonableness. Regarding Sanchez, in granting
his posttrial motion for judgment, the trial court expressly addressed both issues,
first finding that no constitutional violation occurred because Sanchez‟s conduct
was objectively reasonable, and then finding alternatively that even assuming a
violation, Sanchez was immune because he did not “knowingly violate the law”
and he “reasonably could have believed that his conduct was lawful under the
circumstances.” As previously noted, at the time of the federal proceedings, high
court precedent required the federal court to determine whether there was a
constitutional violation before determining the immunity question. (Saucier,
supra, at pp. 200-201.)
16

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In Harris, which also involved an excessive force claim, the court declined
to apply collateral estoppel as to the issue of reasonableness, reasoning that
because the plaintiff asserted the officer had accidentally fired his gun and “the
federal jury rendered a general verdict [against the plaintiff] without any special
findings,” “the jury could have reached its verdict for any number of reasons other
than finding the shooting was a reasonable use of force.” (Harris, supra, 104
Cal.App.4th at p. 187.) Here, plaintiffs do not claim, and there is no evidence, that
the officers fired accidentally, and the instructions and special verdict foreclose the
possibility that the jury reached its verdict for reasons other than the
reasonableness of the officers‟ actions. Because of these distinctions, Lucas,
Mattson, and Harris are inapposite.11 We therefore agree with the Court of
Appeal that the federal proceedings collaterally estop plaintiffs from recovering on
the theory that the officers acted negligently in using deadly force.
2. Negligence Liability For The Officers’ Preshooting Conduct.
As noted above, although applying collateral estoppel to the issue of the
officers‟ alleged negligence in using deadly force, the Court of Appeal held that
plaintiffs could pursue a negligence claim “on the theory that [the officers‟]
conduct leading up to the shooting, including the high-speed pursuit, foot chase,
and release of a pursuit dog created an unreasonable risk of harm to themselves

11
As a second reason for refusing to apply collateral estoppel, the Harris
court, citing only Lucas and Mattson, stated that reasonableness “in civil rights
law does not always mean reasonable conduct under negligence law. The two
concepts are not the same. [Citations.]” (Harris, supra, 104 Cal.App.4th at p.
187.) As already explained, Lucas compared the reasonableness standard under
state negligence law to the “deliberate indifference” standard applicable to
constitutional claims based on a failure to render medical care to an inmate, not to
the reasonableness standard applicable to Fourth Amendment excessive force
claims. (Lucas, supra, 47 Cal.App.4th at pp. 287-288.) As also already
explained, Mattson is illuminating regarding reasonableness, as opposed to
immunity, only insofar as it indicates that the officer‟s conduct must be
intentional, as opposed to accidental or unknowing.
17

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and Hernandez.” It reasoned that “neither the jury‟s special verdict nor the trial
court‟s [posttrial] finding [regarding Sanchez] addressed the question whether the
officers were negligent in creating a situation in which it was reasonable for them
to use deadly force.”
Plaintiffs agree with the Court of Appeal, arguing (1) evidence that the
officers acted negligently in their conduct leading up to the shooting was not
relevant to the determination in the federal proceeding that the shooting was
reasonable, and (2) the officers‟ alleged preshooting negligence was not
adjudicated in the federal proceedings. Defendants, of course, argue otherwise;
they contend that, because the federal court and jury applied a totality-of-
circumstances test, their findings that the use of deadly force was reasonable
“necessarily” included the officers‟ preshooting conduct. In other words,
defendants claim, the federal court and jury found that the officers “acted
reasonably from the initial contact with” Hernandez “through the ultimate use of
deadly force.” Defendants also argue that, under California statutes and case law,
there is no separate “negligence-type” duty arising from tactical decisions leading
up to the use of force and a peace officer‟s objectively reasonable use of force is a
bar to tort liability.
Based on the record, we cannot agree with defendants‟ claim that the
federal court and jury made a finding as to the reasonableness of all of the
officers‟ preshooting conduct. Although the federal court broadly instructed the
jury to consider the totality of the circumstances — and thus, the jury necessarily
considered the evidence regarding the officers‟ preshooting conduct — the court
also instructed that plaintiffs‟ claim involved “deadly force” and that “[t]he use of
deadly force is only justified when a reasonable law enforcement officer would
reasonably believe that there was an immediate threat to the safety of the officer or
others at the time the force was used.” Based on this instruction, the jury‟s finding
that the officers (other than Sanchez) did not violate Hernandez‟s Fourth
Amendment rights by using excessive force implies no more than a finding that
18

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the shooting itself was reasonable because, under the circumstances, the officers
reasonably believed Hernandez presented an immediate threat to either their own
or someone else‟s safety. Likewise, in granting Sanchez‟s posttrial motion, the
federal court found only that his use of deadly force was reasonable because he
had an objectively reasonable belief Hernandez posed a threat of serious harm.
Thus, as the Court of Appeal correctly held, neither the jury nor the federal court
made a finding as to whether all of the officers preshooting conduct was itself
independently reasonable, i.e., not negligent.12
Nevertheless, we agree with defendants that, in light of the finding that the
shooting was reasonable, liability in this case may not be based on the officers‟
alleged preshooting negligence. The starting point for our conclusion is the
validity of the initial detention. Based on the conceded fact that the Thunderbird
was being illegally operated at night without lights (Veh. Code, §§ 280, 24250,
24400), Officer Cooper was legally justified in attempting to detain both of the
car‟s occupants and asking them to exit the car. (See Whren v. U.S. (1996) 517
U.S. 806, 819 [car stop is reasonable where officers have probable cause to believe
driver violated the vehicle code]; People v. Hoyos (2007) 41 Cal.4th 872, 892
[“officer making a traffic stop may, without violating the Fourth Amendment,
order the driver and passengers to exit a car”].) When Hernandez, in response to
Cooper‟s request that he exit the car, moved into the driver‟s seat and drove off
with the headlights unilluminated, Cooper had reasonable cause to believe
Hernandez had committed two public offenses: (1) driving during darkness

12
Moreover, given the law as declared by the Ninth Circuit Court of Appeals,
which governed in the federal trial, any such finding would have been unnecessary
to deciding plaintiffs‟ section 1983 claim. Under Ninth Circuit law, if an officer‟s
use of deadly force is reasonable in light of the circumstances confronting the
officer at the time of the shooting, liability under section 1983 may not be based
on a finding that the officer negligently created a situation in which it was

(footnote continued on next page)
19

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without lighted headlamps (Veh. Code, §§ 280, 24250, 24400); and (2) willfully
resisting, delaying, or obstructing a peace officer “in the discharge or attempt to
discharge any duty of his or her office” (Pen. Code, § 148, subd. (a)(1); see People
v. Allen (1980) 109 Cal.App.3d 981, 985-987).
Because Cooper had probable cause to arrest Hernandez, under both
statutes and case law, Cooper was not obliged simply to let Hernandez go. Long
ago, we explained that an officer with probable cause to make an arrest “ „is not
bound to put off the arrest until a more favorable time‟ ” and is “under no
obligation to retire in order to avoid a conflict.” (People v. Hardwick (1928) 204
Cal. 582, 587 (Hardwick).) Instead, an officer may “press forward and make the
arrest, using all the force [reasonably] necessary to accomplish that purpose.” (Id.
at p. 588; see also Hooper v. City of Chula Vista (1989) 212 Cal.App.3d 442, 453
[“police officer has a duty to the community to carry out his or her obligation to
promote law-abiding, orderly conduct, including, where necessary, to detain and
arrest suspected perpetrators of offenses”].) Consistent with these principles,
Penal Code section 835a provides that a peace officer with reasonable cause to
make an arrest “may use reasonable force to effect the arrest” and “need not retreat
or desist from his efforts [to make an arrest] by reason of the resistance or
threatened resistance of the person being arrested.” Thus, California law expressly
authorized Cooper to pursue Hernandez and to use reasonable force to make an
arrest.

(footnote continued from previous page)

reasonable to use deadly force. (Billington v. Smith (9th Cir. 2002) 292 F.3d 1177,
1190.)
20

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Indeed, in their brief, plaintiffs concede that they may not base negligence
liability on the officers‟ decision to engage in the pursuit.13 They argue, however,
that they may base liability on the officer‟s subsequent execution of their decision,
i.e., the actual “operation” of the pursuit, “including the use of high-speed
automobile maneuvering.”
However, on the conceded facts here, California law provides otherwise.
Under Vehicle Code section 17004, the individual officers may not be held civilly
liable for Hernandez‟s death based on the manner in which they operated their
vehicles during the chase, even assuming they acted without due care.14 (See
Cruz v. Briseno (2000) 22 Cal.4th 568, 572-573.) Under Government Code
section 815.2, subdivision (b), because the individual officers are immune,
Pomona, as their employer, is also immune unless some statute provides
otherwise.15 In Brummett v. County of Sacramento (1978) 21 Cal.3d 880, 883-
886, we held that, with respect to police vehicular chases, an exception to the

13
Plaintiffs base their concession on Government Code section 820.2, which
states: “Except as otherwise provided by statute, a public employee is not liable
for an injury resulting from his act or omission where the act or omission was the
result of the exercise of discretion vested in him, whether or not such discretion be
abused.” Plaintiffs‟ concession is consistent with a long line of Court of Appeal
decisions. (E.g. City of Sacramento v. Superior Court (1982) 131 Cal.App.3d 395,
404; Gibson v. City of Pasadena (1978) 83 Cal.App.3d 651, 661; Sparks v. City of
Compton (1976) 64 Cal.App.3d 592, 596; Bratt v. City and County of San
Francisco (1975) 50 Cal.App.3d 550, 553.) We have never ruled on the question,
and find it unnecessary to do so here.
14
In relevant part, Vehicle Code section 17004 provides that “[a] public
employee is not liable for civil damages on account of personal injury to or death
of any person . . . resulting from the operation, in the line of duty, of an authorized
emergency vehicle . . . when in the immediate pursuit of an actual or suspected
violator of the law . . . .”
15
Government Code section 815.2, subdivision (b), states in full: “Except as
otherwise provided by statute, a public entity is not liable for an injury resulting
from an act or omission of an employee of the public entity where the employee is
immune from liability.”
21

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general rule of a public employer‟s derivative immunity exists under Vehicle Code
section 17001, which provides: “A public entity is liable for death or injury to
person . . . proximately caused by a negligent or wrongful act or omission in the
operation of any motor vehicle by an employee of the public entity within the
scope of his employment.” However, as a matter of law, this section is
inapplicable on the conceded facts here, because Hernandez‟s death was not
caused by a negligent or wrongful act “in the operation of [a] motor vehicle” (ibid)
as we have construed that phrase. To meet this statutory requirement, “it is not
sufficient that a motor vehicle somehow be involved in the series of events that
results in the injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 923.)
Instead, “the vehicle must be in a „state of being at work‟ or „in the . . . exercise of
some specific function‟ by performing work or producing effects at the time and
place the injury is inflicted.” (Chilcote v. San Bernardino County (1933) 218 Cal.
444, 445, italics added [construing predecessor of Veh. Code, § 17001, Civ.Code,
former § 1714 1/2].) As a matter of law, that statutory requirement has not been
met in the case now before us, because the conceded facts are that the shooting
occurred well after the police stopped and exited their cars and chased Hernandez
on foot. Accordingly, neither the individual officers nor Pomona may be held
civilly liable for Hernandez‟s death based on the manner in which the officers
conducted the vehicular pursuit.
Insofar as plaintiffs rely on the officers‟ conduct during the foot pursuit,
plaintiffs have not demonstrated that, notwithstanding the findings in federal court,
they can amend their complaint to state a negligence claim.16 During oral

16
Where a complaint‟s allegations are insufficient as a matter of law, the
burden of proving a reasonable possibility that an amendment can cure the defect
“is squarely on the plaintiff. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311,
318.) Thus, plaintiffs must identify some legal theory or state of facts they wish to
add by way of amendment that would change the legal effect of their pleading.
(HFH, Ltd. v. Superior Court (1975) 15 Cal.3d 508, 513, fn. 3.)
22

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argument, in explaining the basis for the preshooting negligence claim, plaintiffs‟
counsel placed primary emphasis on the following circumstances: (1) Cooper,
without seeing a weapon, screamed that Hernandez had a gun and told Sanchez to
shoot Hernandez; and (2) according to one witness, Hernandez raised up his shirt
to expose his waistline and yelled to Cooper that he was unarmed. However, the
federal jury‟s verdict in Cooper‟s favor collaterally estops plaintiffs from pursuing
this theory of negligence. The jurors who returned that verdict knew of these
circumstances and nevertheless necessarily found (given the jury instructions) that,
in light of the facts known to Cooper, his belief that Hernandez posed an
immediate threat to safety was reasonable. Given this finding, plaintiffs are
estopped from premising negligence liability on the theory that Cooper‟s belief
was unreasonable.
Nor may plaintiffs base negligence liability on the preshooting acts they
identify in their brief: “chasing [Hernandez] into a darkened parking lot” and “the
use and release of a vicious dog.” Regarding the former, it was, of course,
Hernandez, as part of his illegal flight from the officers, who chose where to run;
the officers merely followed his chosen path of attempted escape. As we have
already explained, the officers were not obliged simply to let Hernandez go; they
were authorized to press forward in an attempt to make an arrest, using reasonably
necessary force. (Hardwick, supra, 204 Cal. at p. 587; Pen. Code, § 835a.)
Plaintiffs therefore may not premise negligence liability on the fact that the
officers followed Hernandez as he ran into a darkened parking lot.
Regarding the use and release of a police dog, given the conceded facts
here, we find no basis for negligence liability as a matter of law. Those conceded
facts are that Officer Luna, in the K-9 unit, participated in the vehicle pursuit as
Hernandez led the officers on the high-speed chase, and released the dog during
the subsequent foot pursuit only in response to Cooper‟s report that Hernandez had
brandished a firearm. In other words, when Luna released the dog, he had
personal knowledge that Hernandez was determined to escape, he had personal
23

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knowledge that Hernandez was willing to endanger his own life and the lives of
the officers and the public in order to achieve this end, and he had reason to
believe that Hernandez was threatening the officers with a firearm. On these
conceded facts, no reasonable juror could find that Luna acted unreasonably in
releasing the dog. (Cf. People v. Rivera (1992) 8 Cal.App.4th 1000, 1007-1008
(Rivera) [release and use of police dog reasonable where officer knew suspect was
fleeing and, based on report that suspect was armed, reasonably feared for his
safety].) Therefore, as a matter of law, Luna was not negligent in releasing the
dog.17 (Cf. Gray v. Brinkerhoff (1953) 41 Cal.2d 180, 183 [question of
defendant‟s negligence may be determined as a matter of law where reasonable
jurors “can draw but one conclusion from the evidence presented”].) Thus, on the
conceded facts here, we find no basis for a preshooting negligence claim.18

17
Plaintiffs identify nothing in the use, as opposed to the release, of the dog
they claim was negligent. There was testimony during the federal trial that Luna
made an announcement about his release of the dog. Plaintiffs have neither
pointed to contrary evidence in the record from the federal trial nor asserted
otherwise, and as already noted, their counsel stated during oral argument that the
evidence that would be introduced at the trial plaintiffs now seek would be the
same as the evidence introduced at the federal trial. In any event, given the
conceded facts here, as set forth above, our conclusion would be the same even if
Luna did not make an announcement. (Cf. Rivera, supra, 8 Cal.App.4th at pp.
1004-1008 [release and use of dog were reasonable notwithstanding officer‟s
decision, based on his belief the suspect was armed and his consequent desire to
have the element of surprise, not to make an announcement].)
18
In light of our analysis and conclusion, we do not address defendants‟
claims that they owed no duty of care regarding their preshooting conduct and that
they are immune under Penal Code section 196. We also do not consider the other
immunity statutes discussed by amici curiae.

According to Justice Moreno‟s concurring opinion, to reject plaintiffs‟
preshooting negligence argument, we should say no more than that “plaintiffs have
not shown in this court how they would amend the complaint to allege preshooting
negligence.” (See conc. opn. of Moreno, J., post, at p. 3.) However, as already
explained, plaintiffs assert in their brief that the officers were negligent in “the use
of high speed automobile maneuvering,” in “the use and release of a vicious dog,”

(footnote continued on next page)
24

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DISPOSITION

For the reasons stated above, we hold that the trial court did not err in
entering judgment for defendants. We therefore reverse the Court of Appeal‟s
judgment and remand the matter with directions to reinstate the trial court‟s
judgment.
CHIN, J.

WE CONCUR:
GEORGE, C.J.
KENNARD, J.
BAXTER, J.
CORRIGAN, J.

(footnote continued from previous page)

and in “chasing [Hernandez] into a darkened parking lot,” and plaintiffs‟ counsel
asserted during oral argument that Officer Cooper was negligent in screaming that
Hernandez had a gun and telling Officer Sanchez to shoot Hernandez even though
Cooper never saw a weapon. On this record, unlike Justice Moreno, we find that
plaintiffs have adequately shown how they would amend their complaint to allege
a preshooting negligence claim, and that we must determine whether any of the
preshooting acts plaintiffs have identified can support negligence liability.
25

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CONCURRING OPINION BY MORENO, J.
I agree with the majority that the Court of Appeal was correct that the
federal judgment precluded plaintiffs from relitigating in the present state action
whether defendants were negligent in their use of deadly force. Accordingly, I
concur in part 1 of the majority opinion. (Maj. opn., ante, at pp. 10-17.)
I disagree with the Court of Appeal‟s conclusion that this does not resolve
the case because plaintiffs are entitled to amend their complaint to allege
preshooting negligence. “ „Where the complaint is defective, “[i]n the furtherance
of justice great liberality should be exercised in permitting a plaintiff to amend his
complaint, and it ordinarily constitutes an abuse of discretion to sustain a demurrer
without leave to amend if there is a reasonable possibility that the defect can be
cured by amendment. [Citations.]” ‟ [Citations.] This abuse of discretion is
reviewable on appeal „even in the absence of a request for leave to amend‟
[citation], and even if the plaintiff does not claim on appeal that the trial court
abused its discretion in sustaining a demurrer without leave to amend. [Citation.]”
(Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 970-971.) “The burden of
proving such reasonable possibility is squarely on the plaintiff.” (Blank v. Kirwan
(1985) 39 Cal.3d 311, 318.) “ „Plaintiff must show in what manner he can amend
his complaint and how that amendment will change the legal effect of his
pleading. [Citation.]‟ [Citation.]” (Goodman v. Kennedy (1976) 18 Cal.3d 335,
349.)
1

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Plaintiffs did not attempt to amend their complaint in the superior court to
allege preshooting negligence. The superior court in the present case did not
sustain the demurrer without leave to amend. The superior court held that the
federal court judgment precluded plaintiffs from relitigating in state court whether
defendants‟ use of deadly force was reasonable, but overruled the demurrer
because it concluded the federal judgment did not preclude plaintiffs from
recovering on the theory that defendants failed to summon medical aid and
prevented such aid from being administered. Rather than seek to amend their
complaint to allege preshooting negligence, plaintiffs asked the superior court to
strike their allegations regarding medical aid and enter a final judgment in favor of
defendants.
The Court of Appeal initially concluded that plaintiffs‟ allegation in their
complaint in the present case that “ „[t]he shooting of [Hernandez] occurred as a
result of the absence of due care for the safety of others‟ ” “is sufficient to plead
negligence on the part of the officers based on the theory their conduct leading up
to the shooting, including the high-speed pursuit, foot chase, and release of a
pursuit dog created an unreasonable risk of harm to themselves and Hernandez.”
But the Court of Appeal later stated that it had “some doubt the plaintiffs‟
complaint adequately pleads their pre-seizure negligence theory” and concluded
“the appropriate disposition is to . . . remand the cause to permit the plaintiffs to
file a „clean‟ amended complaint alleging negligence based on their pre-seizure
theory.”
The allegation in plaintiffs‟ complaint that “ „[t]he shooting of [Hernandez]
occurred as a result of the absence of due care for the safety of others‟ ” cannot
reasonably be read to allege that defendants engaged in preshooting negligence.
Plaintiffs, therefore, never have alleged that defendants‟ conduct prior to the
shooting negligently created a situation in which it was reasonable to use deadly
2

---

force. Despite the Court of Appeal‟s invitation to amend the complaint to do so,
plaintiffs have not shown in this court how they would amend the complaint to
allege preshooting negligence. Accordingly, plaintiffs have not met their burden
of proving that it is reasonably possible that they can amend their complaint to
allege a cause of action for preshooting negligence.
In my view, we need say no more to resolve this case. We can and should
wait for a case in which the plaintiff actually has alleged a cause of action for
preshooting negligence to consider that cause of action.
MORENO, J.
I CONCUR:
WERDEGAR, J.
3

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CONCURRING OPINION BY CORRIGAN, J.

I concur, but write separately to express misgivings about the path the
litigation has taken in this case. I agree that plaintiffs‟ state claims here are
foreclosed by a combination of issue preclusion and the application of law to
conceded facts. However, I do not believe that defendants and state courts should
be required to relitigate the facts and parse the federal record for precluded issues
in every case where a federal court retains supplemental jurisdiction of state
claims, then dismisses them after trying a claim under 42 United States Code
section 1983 (section 1983). In such cases, litigation in state court should be
barred by principles of claim preclusion, for reasons well stated by Justice
Kaufman in Mattson v. City of Costa Mesa (1980) 106 Cal.App.3d 441 (Mattson),
another case involving claims under both state tort law and section 1983:
“Once it is known that the federal court will not exercise pendent
jurisdiction over the state claim, plaintiff‟s proceeding to trial in the federal court
on the federal claim alone will necessarily result in splitting the plaintiff‟s cause of
action, and that fact should be apparent to the plaintiff.
“In such circumstances the rule that would best accommodate the rights of
the plaintiff to fully litigate his claim and to invoke the jurisdiction of the federal
court and the right of the defendant, the courts and the public to be free of multiple
litigation of the same cause of action, is that once the federal court has declined to
exercise pendent jurisdiction over the state claim, if the plaintiff then elects to
proceed to trial and judgment in the federal court, his entire cause of action is
either merged in or barred by the federal court judgment so that he may not
thereafter maintain a second suit on the same cause of action in a state court.
1

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“A contrary rule would invite manipulation. It would permit a plaintiff
halfheartedly to request the federal court to exercise pendent jurisdiction, offer
little resistance to any argument by the defendant against its exercise, and hope
that the federal court would decline to exercise pendent jurisdiction and thereby
reserve to the plaintiff a second chance to prevail in a state court action should he
be [un]successful in the federal court. Judicious utilization of judicial and litigant
resources become[s] ever more essential in the wake of the law explosion. The
efficient administration of justice would not be advanced by a rule resulting in or
encouraging multiple litigation of a single cause of action.” (Mattson, supra, 106
Cal.App.3d at p. 455.)
Mattson is not precisely on point, because there the federal court had
refused to exercise pendent jurisdiction over the plaintiff‟s state claim, whereas
here the court retained jurisdiction and dismissed the state claims only after
plaintiffs were unsuccessful at trial.1 However, once the federal court bifurcated
the state claims and limited the scope of trial to the section 1983 claim, plaintiffs
were in essentially the same position as the plaintiff in Mattson. The chances that
the court would take up the state claims, once it decided not to present them to the
jury, were slim to none. Furthermore, as noted in Mattson, if their state claims are
preserved, plaintiffs have no reason to press for resolution of those claims in the
federal action, because they are permitted to relitigate the underlying facts in state
court. (Mattson, supra, 106 Cal.App.3d at p. 455.)
The Court of Appeal in this case relied on Lucas v. County of Los Angeles
(1996) 47 Cal.App.4th 277 (Lucas), and Harris v. Grimes (2002) 104 Cal.App.4th
180 (Harris), to hold that claim preclusion does not apply when a federal court
1 In 1990, after Mattson was decided, Congress codified the judicial
doctrines of pendent and ancillary jurisdiction, under the name “supplemental
jurisdiction.” (28 U.S.C. § 1367; see 2 Witkin, Cal. Procedure (5th ed. 2008)
Jurisdiction, § 73, p. 639.)
2

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waits until after entering judgment on the federal claim to dismiss a state claim.
Lucas, however, was a very different case. There, the federal court dismissed the
state claims after granting summary judgment on the section 1983 claims. (Lucas,
at p. 283; for a similar case, see Craig v. County of Los Angeles (1990) 221
Cal.App.3d 1294, 1298.) 2 There was, evidently, no severance or bifurcation, and
certainly there was no election by the plaintiffs to proceed to trial on their federal
claims alone, as in this case and in Mattson.
Harris was a malpractice action arising from counsel‟s failure to timely
litigate state law claims that were dismissed after a federal trial of the plaintiff‟s
section 1983 claim. The Harris court disagreed with Mattson and followed Lucas.
Noting what it deemed to be controlling principles from the Restatement Second
of Judgments, the court reasoned that there was no concern about multiple
litigation in the case before it. (Harris, supra, 104 Cal.App.4th at pp. 188-189.)
Harris is unpersuasive. Lucas is materially distinguishable, as noted above. The
Mattson court carefully considered the applicable Restatement principles, and its
reasoning was sound. (Mattson, supra, 106 Cal.App.3d at pp. 450-453, discussing
Rest., Judgments, §§ 61, 61.1, and 67, and comments; see Rest.2d Judgments,
§ 26, com. d, p. 238, § 24, com. g, p. 204, and § 25, com. e, p. 213.) While
2 The Lucas and Craig courts followed the reasoning of Merry v. Coast
Community College Dist. (1979) 97 Cal.App.3d 214, another case involving
refusal to exercise pendent jurisdiction over state claims following pretrial
dismissal of federal claims. (Lucas, supra, 47 Cal.App.4th at p. 286; Craig, supra,
221 Cal.App.3d at pp. 1299-1300; Merry, at p. 228.) Merry was decided by the
same court as Mattson. In Mattson, the court noted that Merry was not controlling
when a plaintiff takes a cause of action to trial on a federal theory alone, because
(1) “the decision in Merry was greatly influenced by the summary nature of the
federal court judgment,” and (2) “it is by no means clear that in Merry the cause of
action asserted by plaintiff in the federal court action was the same cause of action
as that asserted in the state court action, . . .” (Mattson, supra, 106 Cal.App.3d at
pp. 453-454; see Merry, at pp. 227-228.)
3

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malpractice may have foreclosed multiple litigation in Harris, that peculiarity
provides no support for the court‟s claim preclusion analysis.
The Mattson rule adheres to the primary rights theory long followed by
California courts. “The most salient characteristic of a primary right is that it is
indivisible: the violation of a single primary right gives rise to but a single cause
of action. (Slater v. Blackwood (1975) 15 Cal.3d 791, 795.)” (Crowley v.
Katleman (1994) 8 Cal.4th 666, 681.) “As far as its content is concerned, the
primary right is simply the plaintiff‟s right to be free from the particular injury
suffered. (Slater, [at p.] 795.) It must therefore be distinguished from the legal
theory on which liability for that injury is premised: „Even where there are
multiple legal theories upon which recovery might be predicated, one injury gives
rise to only one claim for relief.‟ (Ibid.) The primary right must also be
distinguished from the remedy sought: „The violation of one primary right
constitutes a single cause of action, though it may entitle the injured party to many
forms of relief, and the relief is not to be confounded with the cause of action, one
not being determinative of the other.‟ (Wulfjen v. Dolton [(1944)] 24 Cal.2d 891,
895-896, italics deleted.)” (Crowley, at pp. 681-682.)
Here, despite the contrary view of the Court of Appeal majority, plaintiffs‟
section 1983 claim and their state law claims presented alternate theories of relief
for the same injury, the shooting of the decedent. As recognized by the concurring
opinion below, settled principles of law compel the conclusion that the state and
federal claims in this case involve the same primary right. (Mattson, supra, 106
Cal.App.3d at pp. 447-448; see also, e.g., Harris, supra, 104 Cal.App.4th at p.
187; Lucas, supra, 47 Cal.App.4th at p. 286; Swartzendruber v. City of San Diego
(1992) 3 Cal.App.4th 896, 908.)
If primary rights were truly indivisible, then plaintiffs‟ state law claims
would be precluded by the federal judgment whether it was plaintiffs or the federal
court that split their cause of action. However, I do not suggest that the rule
against splitting a cause of action admits no exceptions. Clearly, there are some
4

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situations in which the plaintiff cannot avoid a split, as where the defendant
succeeds in removing the case from state to federal court and the federal court
thereafter declines to hear state claims. Furthermore, like the Mattson court, I
have no quarrel with the rule that, when state claims are dismissed by a federal
court after a summary disposition of federal claims, claim preclusion does not
apply. (Mattson, supra, 106 Cal.App.3d at p. 453.) In that circumstance, the
plaintiff has had no occasion to realize that the court would not try the state
claims, and cannot fairly be held responsible for failing to present all theories of
recovery in one forum. In such limited circumstances, primary rights theory must
bend in the interests of justice. (See Slater v. Blackwood, supra, 15 Cal.3d at p.
796.) However, an exception to the rule of claim preclusion is not appropriate
when a federal court declines to reach state law claims after trying federal claims
based on the same primary right.
Mattson provides a clear, effective rule in this situation. It strikes the
appropriate balance between the interests of the plaintiff in choosing a forum, the
defendant in avoiding the vexation of relitigation, and the courts in the efficient
administration of justice. The Mattson court recognized that it would be
inappropriate to preclude a subsequent state court action whenever a federal court
declines to exercise its supplemental jurisdiction over state claims. Such a rule
“would have an unwarranted and unnecessary chilling effect upon the invocation
of the jurisdiction of the federal courts in civil rights actions.” (Mattson, supra,
106 Cal.App.3d at p. 454.) “However, when the federal court has been requested
to and has declined to exercise pendent jurisdiction over the nonfederal claim, the
plaintiff is presented with a new choice. He may proceed to trial on the federal
claim or, usually, he may elect to dismiss the federal claim without prejudice (see
Fed. Rules Civ.Proc., rule 41(a)(1)) and litigate both claims in the state court
[citations].” (Mattson, at pp. 454-455, fn. omitted.)
If the federal court bifurcates state claims and proceeds to trial on a section
1983 claim alone, plaintiffs are a similar situation. They may seek voluntary
5

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dismissal, and their state claims are preserved under the tolling provisions of 28
United States Code section 1367(d).3 While the federal rules allow voluntary
dismissal only by stipulation or court order after the answer is served (Fed. Rules
Civ.Proc., rule 41(a), 28 U.S.C.), plaintiffs should be required to explore those
alternatives in order to preserve their state claims. It would be particularly
appropriate for the plaintiff to seek a stipulated dismissal in this situation. A
defendant refusing to so stipulate should be barred from relying on the Mattson
rule in subsequent state litigation.
If, instead, plaintiffs choose to go forward with only their section 1983
claim, they have opted for a trial on all the relevant facts, including “the events
leading up to the shooting as well as the shooting.” (Billington v. Smith (9th Cir.
2002) 292 F.3d 1177, 1190.) They should not be entitled to a second opportunity
to litigate those facts simply because the federal court waited until after trial to
dismiss the state claims. The procedure adopted by the federal court in this case
invites the manipulation and multiplication of litigation that the Mattson court
rightly feared. As a general rule, the principle of res judicata ought to foreclose
state court litigation of a cause of action that has already been tried in federal
court. No reason to depart from that rule appears in this case.
CORRIGAN, J.
I CONCUR:
BAXTER, J.
3 “The period of limitations for any claim asserted under subsection (a)
[i.e., claims under the federal court‟s supplemental jurisdiction], and for any other
claim in the same action that is voluntarily dismissed at the same time as or after
the dismissal of the claim under subsection (a), shall be tolled while the claim is
pending and for a period of 30 days after it is dismissed unless State law provides
for a longer tolling period.” (28 U.S.C. § 1367(d).)
6

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Hernandez v. City of Pomona
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 145 Cal.App.4th 701
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S149499
Date Filed: May 28, 2009
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: R. Bruce Minto

__________________________________________________________________________________

Attorneys for Appellant:

Moreno, Becerra, Guerrero & Casillas, Moreno, Becerra & Casillas, Danilo J. Becerra, Gregory W.
Moreno, Arnoldo Casillas and Lizette V. Espinosa for Plaintiffs and Appellants.

__________________________________________________________________________________

Attorneys for Respondent:

Alvarez-Glasman & Colvin, Roger A. Colvin and Sean M. Beehler for Defendants and Respondents.

Dennis J. Herrera, City Attorney (San Francisco), Joanne Hoeper, Chief Trial Deputy, Danny Chou, Chief
Appellate Attorney, and Peter J. Keith, Deputy City Attorney, for League of California Cities, California
State Association of Counties and City and County of San Francisco as Amici Curiae on behalf of
Defendants and Respondents.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Danilo J. Becerra
Moreno, Becerra, & Casillas
3500 West Beverly Boulevard
Montebello, CA 90640
(323) 725-0917

Roger A. Colvin
Alvarez-Glasman & Colvin
13181 Crossroads Parkway North, Suite 400, West Tower
City of Industry, CA 91746
(562) 699-5500

Peter J. Keith
Deputy City Attorney
1390 Market Street, 6th Floor
San Francisco, CA 94102-5408
(415) 554-3908

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Petition for review after the Court of Appeal reversed the judgment in a civil action. This case includes the following issues: (1) Does an action against a police officer for injury resulting from the use of deadly force implicate a single primary right, such that a final judgment in favor of the police officer on a civil rights claim in federal court is res judicata in a subsequent negligence action in state court based on the same circumstances and injury? (2) Where a federal court renders a final judgment that a police officer's use of deadly force was objectively reasonable under the Fourth Amendment and the court subsequently declines to exercise pendent jurisdiction over a state law negligence claim, does the rule against splitting a cause of action bar a subsequent state court action on the negligence claim? (3) Does collateral estoppel bar a subsequent negligence claim based on "pre-seizure" conduct by the police officer that gave rise to the circumstances in which the of

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:
Thu, 05/28/2009	46 Cal. 4th 501, 207 P.3d 506, 94 Cal. Rptr. 3d 1	S149499	Review - Civil Appeal	closed; remittitur issued

Opinion Authors
Opinion	Justice Ming W. Chin
Concur	Justice Carlos R. Moreno, Justice Carol A. Corrigan

Disposition
May 28 2009	Opinion: Affirmed

Dockets
Jan 17 2007	Petition for review filed City of Ponoma et al., Defendants and Respondents. (CRC, rule 8.25 - Fed Ex) Roger A. Colvin, counsel
Jan 17 2007	Record requested
Jan 30 2007	Received Court of Appeal record
Feb 5 2007	Request for depublication (petition for review pending) California State Association of Counties, California League of Cities and City and County of San Francisco-Office of the City Attorney, depublication requestor by Peter J. Keith, Deputy City Attorney
Feb 6 2007	Request for depublication filed (another request pending) City of Pomona and City of Pomona Police Officers, publication requestor by Roger A. Colvin, counsel
Feb 28 2007	Petition for review granted (civil case) Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Mar 14 2007	Certification of interested entities or persons filed Appellants Bonnie Hernandez, etal Attorney Danilo J. Becerra
Mar 14 2007	Certification of interested entities or persons filed Attorney Roger A. colvin for Respondent, City of Pomona.
Apr 2 2007	Opening brief on the merits filed Respondent, City of Pomona by counsel, Roger A. Colvin.
Apr 2 2007	Request for judicial notice filed (granted case) Respondent, City of Pomona by counsel, Roger A. Colvin.
May 3 2007	Answer brief on the merits filed Bonnie Hernandez, Appellant. crc 8.25 (b) Danilo J. Becerra, Attorney for Plaintiffs and Respondents
May 24 2007	Reply brief filed (case fully briefed) Respondents, City of Pomona, et al. by counsel, Roger A. Colvin.
Jun 25 2007	Request for extension of time filed proposed Amicus Curiae the League of California Cities, The California State Assoc. of Counties and the City and County of San Francisco, asking to July 9, 2007 to file their Joint Amicus Curiae Brief in support of Appellants, City of Pomona, et al. by Deputy City Attorney, Peter J. Keith.
Jun 28 2007	Extension of time granted On application of The League of California Cities, The California State Association of Counties, and The City and County of San Francisco and good cause appearing, it is ordered that the time to serve and file a joint application and proposed amicus curiae brief in support of appellants is extended to and including July 9, 2007.
Jul 9 2007	Received application to file Amicus Curiae Brief The League of California Cities,The California State Association of Counties and The City and County of San Francisco in support of Appellants.
Jul 11 2007	Permission to file amicus curiae brief granted The application of THE LEAGUE OF CALIFORNIA CITIES, THE CALIFORNIA STATE ASSOCIATION OF COUNTIES and THE CITY AND COUNTY OF SAN FRANCISCO for permission to file an amicus curiae brief in support of appellants is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jul 11 2007	Amicus curiae brief filed The League of California Cities, California State Association of Counties, and City and County of San Francisco in support of appellants.
Jul 30 2007	Request for extension of time filed Appellants (Estate of George Hernandez, et al.) requesting twenty day extension until August 20, 2007 to file answer brief to the amicus curiae brief of The League of California Cities, The California State Association of Counties, and City and County of San Francisco. by Arnoldo Casillas, counsel
Aug 6 2007	Extension of time granted to August 20, 2007 to file appellant's (Estate of George Hernandez, et al.) , answer brief to amicus curiae.
Aug 20 2007	Response to amicus curiae brief filed appellant, Estate of Hernandez by counsel, Danilo J. Becerra.
Feb 3 2009	Case ordered on calendar to be argued on Tuesday, March 3, 2009, at 9:00 a.m., in San Francisco
Feb 13 2009	Application filed Application to divide oral argument time filed by Roger Colvin, counsel for petitioners City of Pomona et al., requesting to share 10 minutes with amici curiae League of California Cities et al.
Feb 20 2009	Order filed The request of counsel for respondents in the above-referenced cause to allow two counsel to argue on behalf of respondents at oral argument is hereby granted. The request of respondents to allocate to amicus curiae League of California Cities et al. 10 minutes of respondents' 30-minute allotted time for oral argument is granted.
Feb 27 2009	Request for judicial notice granted Respondent's request for judicial notice, filed on April 2, 2007 is granted.
Mar 3 2009	Cause argued and submitted
May 27 2009	Notice of forthcoming opinion posted
May 28 2009	Opinion filed: Judgment reversed For the reasons stated above, we hold that the trial court did not err in entering judgment for defendants. We therefore reverse the Court of Appeal's judgment and remand the matter with directions to reinstate the trial court's judgment. Opinion by Chin, J. ---joined by George, C.J., Kennard, Baxter & Corrigan, JJ. Concurring Opinion by Moreno, J. ---joined by Werdegar, J. Concurring Opinion by Corrigan, J. ---joined by Baxter, J.
Jul 1 2009	Remittitur issued
Jul 1 2009	Returned record Depublication requests are included in the manila folder, instead of a depub. jacket. 1 doghouse
Jul 8 2009	Received: receipt for remittitur from CA 2/7.

Briefs
Apr 2 2007	Opening brief on the merits filed Respondent, City of Pomona
May 3 2007	Answer brief on the merits filed Bonnie Hernandez, Appellant. crc 8.25 (b) Danilo J. Becerra, Attorney for Plaintiffs and Respondents
May 24 2007	Reply brief filed (case fully briefed) Respondents, City of Pomona, et al.
Jul 11 2007	Amicus curiae brief filed The League of California Cities, California State Association of Counties, and City and County of San Francisco in support of appellants.
Aug 20 2007	Response to amicus curiae brief filed appellant, Estate of Hernandez

Brief Downloads
00539447 (1).pdf (451059 bytes) - Amicus Curie Brief
Pomona'sOPENINGbriefApril2007_plaintiff.pdf (1177460 bytes) - Opening Brief
Pomona'sREPLYbriefontheMeritsMay2007.pdf (739359 bytes) - Brief on the Merits
State High Court Rejects Suit in Fatal Shooting by Pomona Police.pdf (98623 bytes) - article

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website

Nov 11, 2009 Annotated by Nancy Hanna	When a federal court enters judgment in favor of the defendants on a civil rights claim brought under 42 USC § 1983, in which the plaintiffs seek damages for police use of deadly and constitutionally excessive force in pursuing a suspect, and the court then dismisses a supplemental state law wrongful death claim arising out of the same incident, the federal judgment collaterally estops plaintiffs from pursuing a state wrongful death claim, even on the theory that the officers’ pre-shooting conduct was negligent.
Nov 11, 2009 Annotated by Nancy Hanna	Collateral estoppel precludes relitigation of issues argued and decided in a prior proceeding. Traditionally, we have applied the doctrine only if several threshold requirements are fulfilled. [Citation] 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 decided in the former proceedings. Fourth, the decision in the former proceedings 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.
Nov 11, 2009 Annotated by Nancy Hanna	For purposes of collateral estoppel, an issue was actually litigated in a prior proceeding if it was properly raised, submitted for determination, and determined in that proceeding.
Nov 11, 2009 Annotated by Nancy Hanna	In considering whether these criteria for collateral estoppel have been met, courts look carefully at the entire record from the prior proceeding, including the pleadings, the evidence, the jury instructions, and any special jury findings or verdicts.
Nov 11, 2009 Annotated by Nancy Hanna	The ‘identical issue’ requirement for estoppel addresses whether ‘identical factual allegations’ are at stake in the two proceedings, not whether the ultimate issues or dispositions are the same.
Nov 11, 2009 Annotated by Nancy Hanna	The same consideration of the totality of the circumstances is required in determining reasonableness under a section 1983 action based on excessive force as is required under California negligence law.
Nov 11, 2009 Annotated by Nancy Hanna	The ‘reasonableness’ inquiry in an excessive force claim under section 1983 is an objective one: the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.
Nov 11, 2009 Annotated by Nancy Hanna	An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; not will an officer’s good intentions make an objectively unreasonable use of force constitutional.
Nov 11, 2009 Annotated by Nancy Hanna	*concurrence* A federal judgment in favor of the defendants on a civil rights claim brought under 42 USC § 1983 precludes plaintiffs from relitigating under a state claim of wrongful death.
Nov 11, 2009 Annotated by Nancy Hanna	*concurrence* Where the complaint is defective, in the furtherance of justice, great liberality should be exercised in permitting a plaintiff to amend his complaint, and it ordinarily constitutes an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable possibility that the defect can be cured by amendment. This abuse of discretion is reviewable on appeal even in the absence of a request for leave to amend, and even if the plaintiff does not claim on appeal that the trial court abused its discretion in sustaining a demurrer without leave to amend.
Nov 11, 2009 Annotated by Nancy Hanna	*concurrence* The burden of proving a reasonable possibility to amend a complaint in order to cure a defect is squarely on the plaintiff. The plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.
Nov 11, 2009 Annotated by Nancy Hanna	*concurrence* Where a plaintiff has not amended a complaint to cure a defect, the reviewing court need only note the claim remains defective and wait for a case in which the plaintiff actually has alleged a cause of action rather than deciding whether that possible claim is estopped.