911 F2d 737 Arrellano v. Nieves

911 F.2d 737

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Marco ARRELLANO, Plaintiff-Appellant,
v.
Angelo NIEVES, Pitty Mitchell, City of Inglewood, Raymond
Johnson, Defendants-Appellees.

No. 89-55233.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 7, 1990.*
Decided Aug. 17, 1990.

Before POOLE, HALL and THOMPSON, Circuit Judges.


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1

MEMORANDUM**

2

Marco Arrellano appeals the district court's order dismissing his civil rights action brought under 42 U.S.C. Secs. 1983, 1985, and 1986 against Angelo Nieves and Pitty Mitchell, police officers of the City of Inglewood, seven other unnamed police officers, Raymond Johnson, Chief of Police, and the City of Inglewood. We affirm in part, and reverse and remand in part.

FACTS AND PROCEEDINGS BELOW

3

On April 24, 1987, Officers Nieves and Mitchell arrested Arrellano for being under the influence of PCP, a controlled substance. On May 7, 1987, the district attorney filed a misdemeanor complaint against Arrellano in Inglewood Municipal Court, charging him with PCP intoxication, in violation of Cal. Health & Safety Code Sec. 11550. On February 4, 1988, a jury convicted Arrellano, and he was sentenced to 90 days imprisonment.

4

On April 26, 1988, while he was incarcerated, Arrellano filed a civil rights complaint in federal court, alleging violations of 42 U.S.C. Secs. 1983, 1985, and 1986, and various pendent state claims. Arrellano's first section 1983 claim alleged that Officers Nieves and Mitchell arrested him without reasonable cause, beat him during his arrest, unlawfully imprisoned him at the police station, prepared a false police report stating that he was under the influence of PCP, and conspired to obtain a fraudulent conviction on the PCP charge by providing false evidence and giving perjured testimony at his trial. Arrellano also alleged a section 1983 claim against the chief of police and the City of Inglewood for authorizing and approving a policy of encouraging police officers to use excessive force when making arrests, and failing to investigate properly reports of police misconduct. Arrellano's claims under section 1985 and 1986 alleged that racial prejudice motivated the defendants to conspire to fraudulently convict him, and that the defendants failed to prevent or terminate this conspiracy. On October 3, 1988, the district court dismissed the complaint, on the ground that Arrellano's claims arising from his arrest on April 24, 1987, were barred by the one-year statute of limitations. The court granted Arrellano leave to amend to plead claims arising on or after April 26, 1987.1

5

On October 24, 1988, Arrellano filed a first amended complaint containing essentially the same claims as his original complaint. On December 8, 1988, the district court dismissed with prejudice the claims against the City of Inglewood and the chief of police, on the ground that these claims were time-barred because they alleged conduct that had occurred outside the one-year statute of limitations. The court granted leave to amend, and instructed Arrellano not to plead any matters that were beyond the one-year limitations period.

6

On January 9, 1989, Arrellano filed a second amended complaint alleging a section 1983 claim against Nieves, Mitchell, and seven other unnamed police officers, for conspiracy to prepare a false arrest report and to obtain a fraudulent conviction against him. Arrellano also repleaded his claims under sections 1985 and 1986. On February 28, 1989, the district court dismissed the complaint without further leave to amend. The court ruled that: (1) Arrellano's conviction in state court collaterally estopped his claims under sections 1983 and 1985 for wrongful conviction; (2) the complaint did not specifically allege racial animus, as required under section 1985; and (3) the section 1986 claim failed because it was dependent on the section 1985 claim. Arrellano timely appealed from each of the three dismissal orders.

ANALYSIS

I. Statute of Limitations

7

Arrellano contends that the district court erred in ruling that Cal. Gov't Code Sec. 945.3 does not toll the statute of limitations in a section 1983 action.2 This contention has merit.


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8

A dismissal on statute of limitations grounds presents a question of law which we review de novo. Donoghue v. Orange County, 848 F.2d 926, 929 (9th Cir.1988). State law determines the statute of limitations for claims brought under 42 U.S.C. Sec. 1983. Wilson v. Garcia, 471 U.S. 261, 280 (1985). State law also determines the application of tolling statutes. Id. at 269. Because section 1983 claims are characterized as personal injury actions, the appropriate limitations period under California law is one year. Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir.1986), cert. denied, 479 U.S. 1054 (1987). Finally, Cal. Gov't. Code Sec. 945.3 tolls the limitations period while a criminal action is pending in state court against a section 1983 plaintiff. Harding v. Galceran, 889 F.2d 906, 908 (9th Cir.1989), petition for cert. filed, 58 U.S.L.W. 3755 (U.S. May 15, 1990) (No. 89-1772).

9

Here, the district court erred in dismissing Arrellano's original and first amended complaints on the ground that the section 1983 claims were time-barred, because the statute of limitations was tolled while criminal charges were pending against him. See Harding, 889 F.2d at 908. Arrellano's section 1983 claims accrued on April 24, 1987, the date of his arrest. Arrellano filed his section 1983 complaint on April 26, 1988, two days outside the one-year limitations period. Nevertheless, under Cal. Gov't Code Sec. 945.3, the one-year limitations period was tolled between May 7, 1987, when a criminal misdemeanor complaint was filed against Arrellano, and February 4, 1988, when he was convicted. See Harding, 889 F.2d at 908. Accordingly, Arrellano's section 1983 claims were timely filed.

10

II. Collateral EstoppelArrellano contends that his section 1983 and 1985 claims were not barred by collateral estoppel. This contention lacks merit.

11

The availability of collateral estoppel is a mixed question of law and fact which we review de novo. Ayers v. City of Richmond, 895 F.2d 1267, 1270 (9th Cir.1990). The party seeking to assert collateral estoppel has the burden of pleading and proving that estoppel should apply. Hernandez v. City of Los Angeles, 624 F.2d 935, 937 (9th Cir.1980). State law governs the application of collateral estoppel to a state court judgment in a federal civil rights action. Ayers, 895 F.2d at 1270. The California Supreme Court has not decided whether a misdemeanor conviction may be used for collateral estoppel purposes in a subsequent civil action. "When the state's highest court has not decided an issue, the task of the federal courts is to predict how the state high court would resolve it." Id. at 1271. This court may look to decisions by the state's intermediate appellate courts for guidance. Id.

12

The California Court of Appeal has established standards to determine on a case-by-case basis whether a misdemeanor conviction will collaterally estop relitigation of an issue in a subsequent civil trial. These standards are: (1) the prior conviction must have been for a "serious offense", e.g., an offense punishable by imprisonment, so that the defendant was motivated to fully litigate the charges; (2) there must have been a full and fair misdemeanor trial to prevent the use of convictions of doubtful validity; and (3) the issue on which the prior conviction is offered must of necessity have been decided at the criminal trial. Leader v. State, 182 Cal.App.3d 1079, 1087, 226 Cal.Rptr. 207, (citations omitted), review denied, 182 Cal.App.3d at 1092 (1986).

13

Applying these standards, we affirm the district court's conclusion that Arrellano's misdemeanor conviction collaterally estops him from relitigating the issues decided against him in state court. First, Arrellano had ample motivation to fully litigate the charge of being under the influence of PCP. This offense is punishable by a maximum of one year imprisonment. See Cal. Health & Safety Code Sec. 11550(a) (West Supp.1990). Indeed, Arrellano served a 90-day jail term, the mandatory minimum sentence. See id. Thus, Arrellano's misdemeanor conviction was for a serious offense. See Leader, 182 Cal.App.3d at 1088.

14

Second, Arrellano had a full and fair trial in which he thoroughly litigated the criminal charge. Arrellano was represented by counsel, engaged in pre-trial discovery, testified on his own behalf, confronted and cross-examined the witnesses against him, and presented evidence on his behalf, including the allegedly false arrest report. Therefore, at trial Arrellano "not only had a full and fair opportunity to defend himself, but in fact did so." Id.3

15

Third, the issues on which the prior conviction is offered were necessarily decided at the criminal trial. Arrellano's complaints allege that the defendants prepared an arrest report which falsely stated that he was under the influence of PCP, and falsely testified at his trial that he manifested symptoms of PCP intoxication. Thus, Arrellano alleges that his conviction violates 42 U.S.C. Secs. 1983, 1985 and 1986, because it was based on this false testimony and manufactured evidence. The issue of whether Arrellano was under the influence of PCP at the time of his arrest, however, has been conclusively determined against him at his misdemeanor trial, and this determination is binding on him in this action. See Leader, 182 Cal.App.3d at 1088-89.

16

Therefore, Arrellano is collaterally estopped from relitigating this issue through his claims that the defendants fabricated the PCP intoxication charge. Accordingly, the district court properly dismissed Arrellano's second amended complaint.4

CONCLUSION

17

Arrellano's original and first amended complaints alleged section 1983 claims (1) against Officers Nieves and Mitchell for using excessive force to effect his arrest, and (2) against Chief Johnson and the City of Inglewood for authorizing and approving a policy of encouraging police officers to use excessive force when making arrests, and failing to investigate properly reports of police misconduct.5 Arrellano deleted these claims from his second amended complaint after the district court ruled that they were barred by the statute of limitations. Because we have determined that Cal Gov't Code Sec. 945.3 tolled the statute of limitations, we remand these claims to the district court for further proceedings.

18

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

*

The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); Ninth Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3

1

The district court also dismissed the pendent state claims. Because Arrellano does not raise the issue of their dismissal in his brief, he has not perfected his appeal as to that part of the judgment. See Hernandez v. City of Los Angeles, 624 F.2d 935, 937 n. 2 (9th Cir.1980); Fed.R.App.P. 28(a)(2)

2

Cal. Gov't Code Sec. 945.3 (West.Supp.1989) provides in pertinent part:

No person charged by indictment, information, complaint, or other accusatory pleading charging a criminal offense may bring a civil action for money or damages against a peace officer ... while the charges against the accused are pending before a justice, municipal, or superior court.

Any applicable statute of limitations for filing and prosecuting these actions shall be tolled during the period that the charges are pending before a justice, municipal, or superior court.

3

Although Arrellano was represented by counsel, he did not appeal his conviction. Nevertheless, under California law a judgment is final once the time for appeal has elapsed. Ayers, 895 F.2d at 1271 (citing In re McDonald's Estate, 37 Cal.App.2d 521, 526, 99 P.2d 1115, 1118 (1940)). Therefore, his conviction represents a final judgment for the purposes of collateral estoppel. See Ayers, 895 F.2d at 1272

4

Because we hold that Arrellano's section 1985 claim is barred by collateral estoppel, we need not address the district court's alternative ruling that the complaint did not specifically allege racial animus. The district court also correctly dismissed the section 1986 claim because "[a] claim can be stated under section 1986 only if the complaint contains a valid claim under section 1985." Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 626 (9th Cir.1988)

5

Arrellano cannot be collaterally estopped from asserting these claims because they were not at issue in his misdemeanor trial. See Ayers, 895 F.2d at 1272; Leader, 182 Cal.App.3d at 1087. Indeed, in their brief appellees concede that, if the statute of limitations was tolled, the excessive force claims are well-pleaded. See also Hernandez, 624 F.2d at 938 (holding that no "firm conclusions about the manner of the arrest [could] be drawn from the mere fact of conviction" because "a technically lawful arrest can be accomplished by the use of excessive force)