John L. Dodd & Associates, John L. Dodd, Benjamin Ekenes; Law Offices of Patrick T. Nichols and Patrick T. Nichols for Plaintiffs and Appellants Patrick T. Nichols, Adam Nichols, Zachary Nichols and Amy Nichols. Jean-Rene Basle, County Counsel, and Matthew J. Marnell, Deputy County Counsel, for Defendants and Respondents Michael Ramos, Gary Fant and Kurt Rowley, and Defendant and Appellant County of San Bernardino.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CIVDS1601356) OPINION APPEAL from the Superior Court of San Bernardino County. Gilbert G. Ochoa, Judge. Affirmed. John L. Dodd & Associates, John L. Dodd, Benjamin Ekenes; Law Offices of Patrick T. Nichols and Patrick T. Nichols for Plaintiffs and Appellants Patrick T. Nichols, Adam Nichols, Zachary Nichols and Amy Nichols. Jean-Rene Basle, County Counsel, and Matthew J. Marnell, Deputy County Counsel, for Defendants and Respondents Michael Ramos, Gary Fant and Kurt Rowley, and Defendant and Appellant County of San Bernardino.
Nichols filed the petition on behalf of himself and of his three minor children through a guardian ad litem. For simplicity, we refer solely to Patrick Nichols as the plaintiff and appellant. Similarly, although the respondents named in the petition include the San Bernardino County District Attorney and two deputy district attorneys, for simplicity we refer solely to the County of San Bernardino as the defendant and appellant.
In his petition, plaintiff asked the court to issue an order requiring the San Bernardino County District Attorney to pursue specific efforts to extradite his former wife from Israel. He asserted that his wife had abducted their three children and removed them from California to Israel in violation of an existing order for joint custody. Defendant and appellant County of San Bernardino (the county) demurred to the petition on two grounds: first, that it was barred by res judicata and/or collateral estoppel because the trial court had previously denied plaintiff's first petition, based on the same facts and primary rights; second, that the trial court had no authority to order the district attorney to perform what it contended was a discretionary act. The trial court found the petition barred by res judicata and further held that the district attorney did not have a mandatory duty to undertake the actions plaintiff sought.
We conclude that the trial court properly found that the doctrine of res judicata applies to the current petition. Accordingly, we need not address plaintiff's contention that the district attorney has a mandatory duty to seek the extradition of plaintiff's former wife, and we will affirm the judgment of dismissal.
The county cross-appeals the trial court's denial of its motion for attorney fees pursuant to Code of Civil Procedure section 128.5 and section 128.7. We will affirm that order as well.
Effective August 7, 2017, section 128.5 was amended and the predecessor statute was repealed. (Stats. 2014, ch. 425, § 1, repealed by Stats. 2017, ch. 169, §§ 1, 2.)
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
In July 2015, plaintiff filed a petition for a writ of mandate in San Bernardino County Superior Court case No. CIVDS1509670. In that petition, he alleged that the district attorney had a mandatory duty to undertake certain actions to bring about the extradition of his former wife from Israel, where she had taken their children in violation of a custody order. He alleged that although the district attorney had undertaken some appropriate actions, albeit without achieving extradition, there remained avenues that could be pursued, based on an extradition treaty between the United States and Israel. However, he alleged, the district attorney had declined to pursue those avenues. The only legal authority cited in that petition is the extradition treaty.
A number of documents filed in the prior action appear in the joint appendix in a request for judicial notice plaintiff filed in the trial court in the current action. We take judicial notice of all documents contained in that request for judicial notice that we refer to in this opinion. (Evid. Code, § 452, subd. (d).) By separate order, we have denied the request for judicial notice filed by plaintiff filed in this court on January 5, 2017.
The matter was set for an ex parte hearing to determine whether the petition should be granted or an order to show cause should issue. The trial court took the matter under submission, and on August 14, 2015, the court denied the petition, stating that prosecutorial discretion is not subject to judicial control via a writ of mandate. The court cited Nasir v. Sacramento County Off. of the Dist. Atty. (1992) 11 Cal.App.4th 976.
Later, the court denied plaintiff's motion for a new trial. Plaintiff did not appeal the denial of the first petition.
On February 8, 2016, plaintiff filed a new petition for writ of mandate, San Bernardino County Superior Court case No. CIVDS1601356. The factual allegations are identical to those stated in the prior petition described above. The county demurred, and the trial court sustained the demurrer without leave to amend. On May 3, 2016, the court dismissed the petition.
The document is entitled "(1st Amended) Verified Petition for Writ of Mandate . . . ." No prior version of the petition appears in the record on appeal.
The county points out, in its cross-appellant's reply brief, one factual difference which it asserts is a judicial admission that entirely defeats plaintiff's claim. At our request, plaintiff filed a supplemental brief addressing that contention. Because we conclude that the current petition is barred by res judicata, however, we need not address the county's contention.
Plaintiff filed a timely notice of appeal. The county filed a timely cross-appeal.
THE TRIAL COURT PROPERLY HELD THAT RES JUDICATA
BARS THE CURRENT WRIT PETITION
The sufficiency of a petition for writ of mandate can be tested by demurrer (Hilton v. Board of Supervisors (1970) 7 Cal.App.3d 708, 713), and the defense of res judicata or collateral estoppel can be raised by demurrer (Planning & Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, 225-226), as it was in this case. On review of a judgment entered after the trial court sustained a demurrer without leave to amend, "'"[w]e treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed." [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.' [Citations.]" (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) Our review is de novo. (Ibid., citing McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.)
Here, as noted above, the trial court sustained the demurrer in part because it determined that it was barred by res judicata. "Res judicata" describes the preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. (Border Business Park, Inc. v. City of San Diego (2006) 142 Cal.App.4th 1538, 1563.) A secondary aspect of res judicata is collateral estoppel. Collateral estoppel, or issue preclusion, does not bar a second action, but it precludes relitigation of issues argued and decided in prior proceedings. (Ibid.)
Plaintiff contends that res judicata and/or collateral estoppel does not apply for several reasons. First, he contends that the county did not meet its burden of proving that the denial of the first writ petition was on the merits. Plaintiff is correct that the party asserting res judicata has the burden of establishing all of the elements of the defense. (Vella v. Hudgins (1977) 20 Cal.3d 251, 257.) A judgment is on the merits if the substance of the claim is tried and determined. (Beverly Hills Nat. Bank v. Glynn (1971) 16 Cal.App.3d 274, 286.) Here, the county pointed out in its demurrer that the substantive issue was decided in the prior proceeding. It quoted the trial court's minute order in the prior proceeding, in which the court stated that prosecutorial discretion is not subject to mandate. In that minute order, the court ruled that mandate does not lie to control the exercise of prosecutorial discretion. It implicitly rejected plaintiff's substantive claim that the district attorney has a mandatory duty to procure the extradition of plaintiff's former wife. Because the court considered plaintiff's arguments as to why the district attorney had a duty to pursue extradition and rejected them for the reasons it stated in the minute order, the ruling was on the merits. Accordingly, the county did meet its burden of proof.
Plaintiff also contends that the prior ruling was not on the merits because it was a summary denial. He contends that res judicata does not apply to a summary denial of a writ petition. However, the cases he relies on are inapposite. He relies primarily on Kowis v. Howard (1992) 3 Cal.4th 888. There, the California Supreme Court held that "[a] summary denial of a writ petition does not establish law of the case whether or not that denial is intended to be on the merits or is based on some other reason." (Id. at p. 899.) Kowis deals with a summary denial of a writ petition in the Court of Appeal—i.e., a denial without issuance of an alternative writ and without a written opinion. And, it holds that such a denial does not establish law of the case. (Id. at p. 894.) Law of the case is not the same as res judicata. "The doctrine of 'law of the case' deals with the effect of the first appellate decision on the subsequent retrial or appeal. The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case." (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 459, p. 515.) "The doctrine that a previous ruling has become the law of the case has no application except as to the decisions of appellate Courts." (Lawrence v. Ballou (1869) 37 Cal. 518, 521; see People v. Sons (2008) 164 Cal.App.4th 90, 100.) Because the instant case involves successive writ petitions in the trial court, law of the case does not apply.
Kowis is also not authority that the denial of a writ petition in the superior court is not res judicata if it is on the merits. The discussion in Kowis concerning res judicata is solely in the context of the court's discussion of the origins of the "sole possible ground rule." That rule was stated, in Hagan v. Superior Court (1962) 57 Cal.2d 767, as follows: "The rule is well settled that a denial by this or the appellate court of an application for a writ without opinion 'is not res judicata of the legal issues presented by the application unless the sole possible ground of the denial was that the court acted on the merits, or unless it affirmatively appears that such denial was intended to be on the merits.'" (Id at p. 770, quoted in Kowis, at pp. 895-896.) The court in Kowis ultimately rejected that rule for purposes of law of the case, holding that judicial economy is best promoted by a rule that a summary denial of a writ petition in the appellate courts or the Supreme Court does not create law of the case, regardless of any possible inference that the court denied the petition on its merits. (Kowis at pp. 898-899.)
Plaintiff also cites People v. Municipal Court (Marandola) (1979) 97 Cal.App.3d 444, Matuz v. Gerardin Corp. (1989) 207 Cal.App.3d 203, and People v. Partee (2018) 21 Cal.App.5th 630. All three cases deal solely with the res judicata effect or law of the case effect of a summary denial of an original petition for writ of mandate in an appellate court. (Marandola, at p. 447 [res judicata]; Matuz v. Gerardin Corp., at p. 205 & fn. 2 [res judicata]); Partee, at p. 639 [law of the case]). Accordingly, none is apposite.
Plaintiff also contends that the ruling was not on the merits because it was based in part on a procedural defect subject to a special demurrer. Specifically, he notes that although the court denied the petition in part based on its conclusion that mandate does not lie to control prosecutorial discretion, the court also denied the petition because plaintiff had failed to show any urgency, as required by California Rules of Court, rule 8.486(a)(7)(A). He contends that this procedural defect could have been remedied by amending the petition. Even if he had been permitted to amend the petition to demonstrate urgency, however, that would not have altered the court's substantive ruling that mandate did not lie to control what it deemed the district attorney's exercise of discretion. Accordingly, that does not affect the validity of the court's decision to sustain the demurrer.
Plaintiff further contends that res judicata does not apply because the county was not a named party in the first petition but is a party to the second petition. The first petition named the San Bernardino County District Attorney Child Abduction Unit, the district attorney individually, and two deputy district attorneys. The second petition named the county as well as the district attorney and the same two deputy district attorneys. Res judicata does not require identical parties, however. It suffices if a party to the second litigation is in privity with a party to the first litigation. (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896.) "Privity" is a term "not readily susceptible of uniform definition." (Clemmer v. Hartford Ins. Co. (1978) 22 Cal.3d 865, 875, overruled on other grounds in Ryan v. Rosenfeld (2017) 3 Cal.5th 124, 135.) It includes any relationship between the party to be estopped and the party to prior litigation that is "'sufficiently close'" as to justify application of the doctrine. (Ibid.) A party is adequately represented for purposes of the privity rule "'if his or her interests are so similar to a party's interest that the latter was the former's virtual representative in the earlier action. [Citation.]' [Citation.] We measure the adequacy of 'representation by inference, examining whether the . . . party in the suit which is asserted to have a preclusive effect had the same interest as the party to be precluded, and whether that . . . party had a strong motive to assert that interest. If the interests of the parties in question are likely to have been divergent, one does not infer adequate representation and there is no privity. [Citations.]" (Citizens for Open Access etc. Tide, Inc. v. Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1070.)
Privity is a legal concept, which we determine independently based on undisputed facts. (Citizens for Open Access etc. Tide, Inc. v. Seadrift Assn., supra, 60 Cal.App.4th at p. 1070.) We can determine such an issue for the first time on appeal. (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 6.)
It is beyond question that a county is in privity with its district attorney with respect to the district attorney's discharge of his or her official duties. Plaintiff does not even attempt to argue otherwise. Instead, he merely contends that the trial court could not have concluded that the county was in privity with its district attorney because the county failed to argue that it was in privity. However, the court's minute order states that neither party disputed that the county was in privity with the district attorney, and it found that the county was indeed in privity. The question on appeal is not whether the district attorney did or did not argue the point; the question is whether the court properly made a finding on that point. We conclude that it did.
In any event, the privity doctrine applies, as a matter of due process, to the party against whom the former judgment is argued to be preclusive: "In the final analysis, the determination of privity depends upon the fairness of binding appellant with the result obtained in earlier proceedings in which it did not participate." (Citizens for Open Access etc. Tide, Inc. v. Seadrift Assn., supra, 60 Cal.App.4th at p. 1070.) In this case, the question is not whether the county is bound by the prior decision; the question is whether plaintiff is bound by it.
Plaintiff also argued in his opposition to the demurrer that the second petition was not barred by res judicata because unlike the first petition, the second petition was based on Family Code section 3131, which, he contended, imposed a mandatory duty on the district attorney to pursue extradition. He stated that because the legal basis of the two petitions differs, it is irrelevant that the petitions involve the same nucleus of fact, contrary to the county's assertion in the demurrer. He does not raise this assertion on appeal. Consequently, we deem it waived. (Children's Hospital & Medical Center v. Bontá (2002) 97 Cal.App.4th 740, 777.)
We decline plaintiff's suggestion that we should reach the merits of his contentions, despite the bar of res judicata, because it is in the public interest to do so.
THE COURT PROPERLY DENIED THE COUNTY'S
MOTION FOR ATTORNEY FEES
The county filed a motion for attorney fees pursuant to section 128.5 and section 128.7. It asserted that plaintiff failed to dismiss the second writ petition despite being informed by the county that the petition was barred by res judicata. The trial court denied the motion because equity did not require granting it. The county contends that the court erred.
The county does not address the standard of review that applies to an order denying a motion for attorney fees pursuant to section 128.5 or section 128.7. The standard of review is crucial to the analysis on appeal. Accordingly, arguments should be tailored according to the appropriate standard of review. Failure to do so may be deemed a concession that an argument lacks merit. (Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465.)
Furthermore, the county's argument is perfunctory at best. It merely notes that it did not find any precedent that directly addresses the application of equity to a motion pursuant to section 128.5 or section 128.7, and asserts, without making any reasoned argument to support the assertion, that because equitable considerations unrelated to litigation success is not a proper basis for an award or for denying an award of contractual attorney fees, the same rule should apply to a ruling on a motion for attorney fees pursuant to either section 128.5 or section 128.7. A trial court's order or judgment is presumed to be correct, and an appellant has the burden on appeal to demonstrate both error and prejudice. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; People v. Stanley (1995) 10 Cal.4th 764, 793; Salas v. Department of Transportation (2011) 198 Cal.App.4th 1058, 1074.) Such a perfunctory argument does not constitute a serious effort to raise an issue and we may deem the issue waived. Nevertheless, we will address it.
Plaintiff correctly identifies the standard of review: abuse of discretion. (Patel v. Crown Diamonds, Inc. (2016) 247 Cal.App.4th 29, 37.) The scope of discretion depends upon the particular law being applied. (Ibid.) Action that "'transgresses the confines of the applicable principles of law is outside the scope of discretion.' [Citation.]" (Ibid.)
The version of section 128.5 that was in effect at the time of the ruling below provided, in pertinent part: "(a) A trial court may order a party, the party's attorney, or both, to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay. This section also applies to judicial arbitration proceedings under Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3. [¶] (b) For purposes of this section: [¶] (1) 'Actions or tactics' include, but are not limited to, the making or opposing of motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading. The mere filing of a complaint without service thereof on an opposing party does not constitute 'actions or tactics' for purposes of this section. [¶] (2) 'Frivolous' means totally and completely without merit or for the sole purpose of harassing an opposing party."
As noted above, section 128.5 was amended in 2017. The 2017 amendment makes minor changes to the wording of subdivisions (a) and (b) of that statute, but the meaning of those subdivisions is identical. Accordingly, this discussion applies to the current version of that statute, as well as the prior version.
Section 128.7 provides that every "pleading, petition, written notice of motion, or other similar paper" shall be signed by the party's attorney of record or by a self-represented party. (§ 128.7, subd. (a).) It further provides: "By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met: [¶] (1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. [¶] (2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. [¶] (3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. [¶] (4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief." (§ 128.7, subd. (b).) It provides for the imposition of sanctions, including monetary sanctions, for violation of subdivision (b). (§ 127.8. subds. (c), (d).)
Section 128.5 applies only if, in addition to finding that the action is objectively frivolous, the court found that the party or attorney acted for an improper purpose, i.e., in subjective bad faith. (Levy v. Blum (2001) 92 Cal.App.4th 625, 635.) Section 128.7 does not require a finding of subjective bad faith; it merely requires that the party or attorney's action is objectively unreasonable. (San Diegans for Open Government v. City of San Diego (2016) 247 Cal.App.4th 1306, 1313-1314, abrogated by statute on another point as discussed in Nutrition Distribution, LLC v. Southern SARMs, Inc. (2018) 20 Cal.App.5th 117, 123, 125-127, 130 & fn. 13.) However, even if the trial court finds that a party did violate section 128.7, subdivision (b), section 128.7, subdivision (c), does not require the imposition of sanctions; rather, it gives the trial court the discretion to determine whether a sanction is warranted. (Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 422.) A court's decision that sanctions are not warranted under section 128.7 must be affirmed, "[a]bsent a showing of arbitrariness." (Ibid.)
The trial court's statement in this case that "equity" or "equitable principles" do not require an award of attorney fees under these sections can readily be understood to mean that the court did not believe that plaintiff acted in bad faith, as required by section 128.5, subdivision (a). It is equally reasonable to infer from the court's statement that even if the court believed that plaintiff violated the certification that "to the best of his knowledge, information, and belief, formed after an inquiry reasonable under the circumstances," all of the specified conditions were met, it determined that the violation did not merit imposition of sanctions. Accordingly, we see no abuse of discretion.
Because we uphold the trial court's order, we need not address plaintiff's arguments as to the timeliness of the motion. --------
The judgment is affirmed. The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
J. We concur: RAMIREZ
P. J. CODRINGTON