McMillan v. Ventura County Sheriff's Dept.

Filed 9/26/06 McMillan v. Ventura County Sheriff's Dept. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Plaintiff Edwin D. McMillan appeals a judgment after the trial court sustained a demurrer without leave to amend on his civil rights action against defendants Ventura County Sheriff's Department, Dennis Carpenter and K. Marple (collectively the County). We conclude the trial court properly found that McMillan's action was barred by the doctrine of res judicata. We affirm.

FACTS

The Federal Action

On March 31, 2003, McMillan filed a federal civil rights complaint (42 U.S.C. § 1983) in the United States District Court for the Central District of California seeking compensatory and punitive damages. He alleged that on August 8, 2001, Carpenter, a Sheriff's Commander, and Marple, a Sheriff's Deputy, deliberately prevented him from obtaining legal materials while he was in custody. In a separate cause of action, McMillan alleged that state prison officials had retaliated against him while he was in state prison.

Carpenter and Marple moved to dismiss McMillan's action claiming that he failed to properly state a cause of action on his claim for damages. The court granted the motion with leave to amend. It warned McMillan that failure to timely file a complaint in compliance with the order could lead to a dismissal. McMillan did not file an amended complaint. On January 20, 2005, the court issued an order dismissing all claims against defendants with prejudice. It allowed McMillan to continue to pursue his retaliation cause of action against state officials. McMillan appealed the dismissal order to the Ninth Circuit Court of Appeals.

The Ventura Superior Court Case

On October 20, 2004, McMillan filed a complaint in the Ventura County Superior Court against the County alleging a cause of action under the federal Civil Rights Act (42 U.S.C. § 1983). He alleged the County denied him access to law books while he was in custody and intentionally caused him damage on August 8, 2001.

The County filed a demurrer claiming that McMillan's action was barred by res judicata. It requested the court to judicially notice the federal court dismissal order. At the hearing, the trial court took judicial notice of the federal action and sustained the demurrer without leave to amend based on the application of the doctrine of res judicata.

McMillan filed a motion for rehearing and attached a copy of an April 12, 2005, order from the Ninth Circuit which stated: "A review of the record demonstrates that this court lacks jurisdiction over this appeal because the order challenged in the appeal is not final or appealable. See Fed. R. Civ. P. 54(b), Chacon v. Babcock, 640 F.2d 221 (9th Cir. 1981) (order is not appealable unless it disposes of all claims as to all parties). Consequently, this appeal is dismissed for lack of jurisdiction." McMillan claimed that because the federal court dismissal order was not yet appealable, the finality element of res judicata was not established.

On July 15, 2005, the Ventura County Superior Court entered a judgment of dismissal against McMillan stating that res judicata barred his action.

DISCUSSION

I. Res Judicata

McMillan claims the trial court erred by sustaining the demurrer because the County did not prove the elements of res judicata. We disagree. The doctrine of res judicata prevents parties from relitigating matters resolved against them in a prior action. (Brinton v. Bankers Pension Services, Inc. (1999) 76 Cal.App.4th 550, 556 (Brinton).) "Its purpose is 'to preserve the integrity of the judicial system, promote judicial economy, and protect litigants from harassment by vexatious litigation.' [Citations.]" (Ibid.)

To apply res judicata here, the County had to prove that the prior federal case involved parties to the current case, the same cause of action and a final decision on the merits. (Brinton, supra, 76 Cal.App.4th at p. 556; Lumpkin v. Jordan (1996) 49 Cal.App.4th 1223, 1230 (Lumpkin).) The County established these elements.

Carpenter and Marple who are defendants in the current case, were also defendants in the federal action. In both cases McMillan alleged a federal civil rights cause of action. (42 U.S.C. § 1983.) In his federal and state complaints, he alleged that the cause of action arose on the same date, August 8, 2001. In the federal case, McMillan alleged that Carpenter and Marple intentionally deprived him of "requisite legal materials within the meaning of their own facility regulations." In his state court case, he alleged they intentionally failed to provide him with law library materials.

McMillan claims the federal judgment was not final for purposes of res judicata. We disagree. "'A federal judgment "has the same effect in the courts of this state as it would have in a federal court." . . .' [Citation.] The federal rule is that '"a judgment or order, once rendered, is final for purposes of res judicata until reversed on appeal or modified or set aside in the court of rendition."' [Citations & fn. omitted.]" (Lumpkin, 49 Cal.App.4th at p. 1230.) Here the element of finality was established. The federal district court dismissed all claims against Carpenter and Marple with prejudice. McMillan has a right to eventually appeal that order but, because it has not been set aside, it is final for purposes of res judicata. (Id. at p.1231; Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1110 [dismissal of claim with prejudice by federal district court was final for res judicata purposes even though it was subject to a future review on appeal by the Ninth Circuit]; see also Calhoun v. Franchise Tax Board (1978) 20 Cal.3d 881, 887.)

The federal court's dismissal was an adjudication on the merits. (Fed. Rules of Civ. Proc., rule 41(b), 28 U.S.C.) "An involuntary dismissal generally acts as a judgment on the merits for the purposes of res judicata, regardless of whether the dismissal results from procedural error or from the court's considered examination of the plaintiff's substantive claims. [Citations.]" (U. S. v. Schimmels (9th Cir. 1997) 127 F.3d 875, 884.)

The federal court gave McMillan an opportunity to amend his complaint. His failure to do so does not preclude the trial court from applying the bar of res judicata. (Fitzgerald v. Herzer (1947) 78 Cal.App.2d 127, 131.) The prior judgment is res judicata on matters which were raised or could have been raised in the first action. (Aerojet- General Corp. v. American Excess Ins. Co. (2002) 97 Cal.App.4th 387, 402.)

We have reviewed McMillan's remaining contentions and conclude he has not shown reversible error.

The judgment is affirmed. Costs are awarded to respondents.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

COFFEE, J.

PERREN, J.

Steven E. Hintz, Judge

Superior Court County of Ventura

______________________________

Edwin D. McMillan, in pro. per., for Plaintiff and Appellant.

Alan E. Wisotsky and James S. Eicher, Jr., for Defendants and Respondents.

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