FILED
NOT FOR PUBLICATION JUL 01 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGORY PELLERIN, an individual, No. 13-15860
Plaintiff - Appellant, D.C. No. 2:12-cv-00665-KJM-
CKD
v.
NEVADA COUNTY, California, a county MEMORANDUM*
government; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge
Argued and Submitted April 15, 2015
San Francisco, California
Before: SCHROEDER and N.R. SMITH, Circuit Judges and GLEASON,** District
Judge.
Gregory Pellerin appeals from the district court’s judgment dismissing his
six 42 U.S.C. § 1983 claims and three causes of action under California law, all of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Sharon L. Gleason, District Judge for the U.S. District
Court for the District of Alaska, sitting by designation.
which arose out of his arrest and criminal prosecution in California Superior Court.
We review de novo the dismissal of an action under the doctrine of collateral
estoppel. McQuillion v. Schwarzenegger, 369 F. 3d 1091, 1096 (9th Cir. 2004).
We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
Pellerin was arrested and charged with felony assault, felony battery, and
misdemeanor false imprisonment by violence. His wife videotaped the incident,
then gave the videotape to the responding police officer. Pellerin has alleged that
the Sheriff’s Department improperly edited the video and the District Attorney’s
Office refused to review the exculpatory portion of the video in violation of his
constitutional rights. Pellerin moved to dismiss the criminal case on these bases,
among other grounds. After a two-day evidentiary hearing, the Superior Court
denied Pellerin’s motion. Pellerin sought mandamus review to the California
Court of Appeal, which issued an alternative writ granting Pellerin’s request for
recusal of the District Attorney’s Office. Several months later, the State dismissed
the case.
In the instant case, the district court granted the defendants’ motion to
dismiss Pellerin’s civil rights claims pursuant to Fed. R. Civ. P. 12(b)(6), holding,
inter alia, that the § 1983 claims were precluded by collateral estoppel. The
district court declined to exercise jurisdiction over the remaining state law claims.
If the district court did not err, the parties would be bound by the following factual
findings: (1) no continuous video existed on Pellerin’s phone; (2) no evidence
supported the conclusion that law enforcement created any gaps in the video; (3)
no videos were deleted from the phone; (4) the arresting officer’s editing of the
video, while not best practices, was not intentional and was not misconduct; (5)
Pellerin had complete access to the flip phone prior to trial; and (6) no party acted
in bad faith or committed intentional misconduct, because the video was not
clearly exculpatory. These facts would preclude Pellerin from pursuing Claims 3
through 6 in his complaint. While they may not fully preclude liability on Claims
1 and 2, these facts demonstrate that there would be no harm from any
constitutional violation that Pellerin could prove.1 Accordingly, whether collateral
estoppel applies is dispositive in this case.
“State law governs the application of collateral estoppel or issue preclusion
to a state court judgment in a federal civil rights action.” Ayers v. City of
Richmond, 895 F.2d 1267, 1270 (9th Cir. 1990). The threshold requirements for
application of collateral estoppel under California law are:
First, the issue sought to be precluded from relitigation
must be identical to that decided in a former proceeding.
Second, this issue must have been actually litigated in the
former proceeding. Third, it must have been necessarily
1
Even if we were to find that Claims 1 and 2 were not precluded, we would
hold that Pellerin failed to demonstrate a municipal policy causing his injuries on
Claim 1 and that the Nevada County District Attorney’s Office was entitled to
prosecutorial immunity on Claim 2.
decided in the former proceeding. Fourth, the decision in
the former proceeding must be final and on the merits.
Finally, the party against whom preclusion is sought must
be the same as, or in privity with, the party to the former
proceeding.
Lucido v. Superior Court, 51 Cal. 3d 335, 341 (1990). In addition, “application of
issue preclusion must be consistent with the public policies of ‘preservation of the
integrity of the judicial system, promotion of judicial economy, and protection of
litigants from harassment by vexatious litigation.’” White v. City of Pasadena, 671
F.3d 918, 927 (9th Cir. 2012) (quoting Lucido, 51 Cal. 3d at 343).
Here, the parties dispute whether the fourth requirement has been met –
whether the decision in the former proceeding was final and on the merits.2
Pellerin argues that when the State dismissed his criminal case, it terminated
Pellerin’s right to appeal the earlier adverse ruling on his motion to dismiss, and as
a result there can be no finality for collateral estoppel purposes.
2
In a footnote in Pellerin’s opening brief, he “disputes there was sufficient
identity of issues, in particular, that the Superior Court made only one factual
finding, namely that there had not been any Brady violation” and he “reserves the
right to further respond . . . if Respondents argue this point[.]” In Pellerin’s reply
brief, he again raises this issue only in a footnote, stating that “it is unnecessary to
argue these issues when Appellant’s right to appeal never matured.” This argument
is waived. See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We review
only issues which are argued specifically and distinctly in a party’s opening brief. .
. . [A] bare assertion does not preserve a claim, particularly when . . . a host of
other issues are presented for review.”); Rodriguez v. Airborne Express, 265 F.3d
890, 894 n.2 (9th Cir. 2001) (raising argument only in footnote was insufficient to
raise issue on appeal).
In Schmidlin v. City of Palo Alto, the California Court of Appeal identified
four factors to consider in assessing finality for collateral estoppel purposes: “(1)
whether the decision was not avowedly tentative; (2) whether the parties were fully
heard; (3) whether the court supported its decision with a reasoned opinion; and (4)
whether the decision was subject to an appeal.” 157 Cal. App. 4th 728, 774 (2008)
(citation omitted). A prior adjudication is “sufficiently final to support preclusion
if it is determined to be sufficiently firm to be accorded conclusive effect.” Id.
(internal quotation marks and citations omitted).
Pellerin relies on Ayers v. City of Richmond to assert that a party must have
had the opportunity to appeal the ruling or judgment in order for the finality
requirement to be met. 895 F.2d at 1271. But we do not read Schmidlin or Ayers to
require that there must be a right to appeal in every circumstance in order for the
finality requirement to be met. Rather, each case requires a consideration of each
of the four Schmidlin factors to determine if the prior ruling is sufficiently final so
as to be accorded preclusive effect.
Here, the Superior Court’s decision on the record denying the motion to
dismiss was thoroughly reasoned (albeit not in a written opinion); the court’s
decision was not tentative. The parties were fully heard at an evidentiary hearing
and in briefing and oral argument. This is not a case where a routine pretrial order
is being invoked to preclude a range of issues never fully litigated. And while
Pellerin did not have a right to appeal the denial of his dismissal motion, he did
elect to pursue mandamus review. Lastly, we have no record to suggest that
Defendants manipulated proceedings (by dismissing the criminal charges against
Pellerin) in order to cut off Pellerin’s right to appeal. Pellerin is in no worse
position than if he had been acquitted of the charges. In these circumstances, the
Superior Court’s order is sufficiently firm and on the merits so as to be accorded
conclusive effect with respect to Pellerin’s § 1983 claims.3
AFFIRMED.4
3
Because we find that Pellerin is collaterally estopped from pursuing his §
1983 claims, we do not reach the parties’ additional arguments. The district court
did not err in declining to exercise jurisdiction over the state law claims. A district
court can decline to exercise supplemental jurisdiction when the district court “has
dismissed all claims over which it has original jurisdiction.” 28 U.S.C. §
1367(c)(3).
4
Appellees’ Motion Requesting Judicial Notice of the October 21, 2013
Opinion of the California Court of Appeal in People v. Pellerin, No. C072654, is
denied as moot.