Morrow v. City of Oakland

Filed 9/13/07 Morrow v. City of Oakland CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

A woman accused plaintiff Frank Morrow, Jr., an Oakland police officer, of sexually assaulting her when she was in his custody. The City of Oakland (City) settled the womans civil claim for damages and Morrow has filed several lawsuits challenging the Citys internal investigation and legal representation of him, and the conduct of the accusers attorneys. In this latest lawsuit, the trial court applied collateral estoppel to bar Morrow from repeating claims previously adjudicated in federal court.

Morrow, in propria persona, appeals after demurrers to his complaint were sustained without leave to amend, and summary judgment was granted on the Citys cross-complaint for breach of a settlement agreement entered in prior litigation. Respondents fall into three, separately represented groups: (1) the City, City Attorney John Russo, Assistant City Attorney Randolph Hall, and Attorney James Hodgkins (collectively, City defendants); (2) the Burnham Brown law firm and its attorneys John Verber and Claudia Leed, who defended Morrow in the sexual assault litigation (collectively, Burnham Brown); and (3) attorneys Dennis Roberts and Paul Turley, who represented Morrows accuser.

We affirm the judgments.

facts[1]

The genesis of this action is a citizen complaint and lawsuit filed by G. Castaneda accusing Morrow of sexually assaulting her while she was in police custody in May 2001.[2] Castaneda sued Morrow and the City for, among other things, assault and violation of her civil rights. (42 U.S.C.  1983 et seq.) Castaneda filed her lawsuit in state court but the City removed it to federal court in 2002.

A. Morrow I

While the Castaneda case was being litigated, Morrow filed an action against the City and numerous City officials. (Morrow v. City of Oakland(N.D.Cal.) No. C 04-00315 MHP (Morrow I).) Morrow I was removed from state court to federal court in 2004. Morrow, who is African-American, alleged violation of his constitutional rights and civil rights under federal law, and nine pendent state law causes of action. (42 U.S.C.  1983, 1985.) The purpose of Morrow I, as summarized by the federal judge who presided over it, was to contest the conduct and disposition of [the Oakland police] departments investigation into Castanedas allegation and, more generally, to challenge the management and investigative practices within the force.[3]

In the spring of 2004, a global settlement was reached that resolved both the Castaneda lawsuit and Morrow I. The settlement was the product of a series of settlement conferences with a magistrate judge, at which Morrow was personally present.

Castaneda agreed to dismiss her complaint against the City and Morrow, in exchange for a reported payment of $95,000 by the City, and $15,000 by Burnham Brown who had previously represented Morrow. Burnham Browns payment to Castaneda was conditioned on a release of legal malpractice claims by Morrow. The Castaneda settlement agreement required mutual release of all claims by all parties.

In Morrow I, Morrow agreed to release his claims if specified events occurred, including City approval of the Castaneda settlement, recategorization of the finding of the internal investigation of Castanedas allegation from not sustained to unfounded, and a City payment to Morrow of $5,000. The federal district court enforced the settlements over Morrows later efforts to overturn them. In February 2005, the federal court denied Morrows motion to rescind the Morrow I settlement agreement and, in September 2005, held that the Castaneda settlement was binding. Morrow I was dismissed with prejudice, pursuant to settlement, on February 8, 2005.

B. Morrow II

Morrow filed another lawsuit on January 18, 2005, while he was contesting the Morrow I settlement and just before judgment was entered in that case. Morrow sued, in federal court, the City of Oakland and its attorneys; Burnham Brown attorneys; and Castanedas attorneys. (Morrow v. City of Oakland(N.D.Cal.) No. C 05-00270 MHP (Morrow II).) Morrow again asserted violation of his constitutional and civil rights, and numerous state claims, arising out of the legal representation he received during the Castaneda litigation and the way the litigation was conducted. In September 2005, the federal district court granted defendants motion to dismiss the action. The court found that Morrows federal civil rights cause of action was barred by principles of res judicata and the terms of the prior settlement agreement because Morrow II concerned the same essential controversy litigated and resolved in Morrow I. The court declined to exercise supplemental jurisdiction over the state law claims which, it noted, may not be viable given the broad settlement agreement in Morrow I.

Morrow jointly appealed the federal district court rulings in Castaneda, Morrow I, and Morrow II. In August 2006, the Ninth Circuit held that the district court properly enforced the Castaneda and Morrow I settlement agreements. The appellate court also affirmed the dismissal of Morrow II, holding that Morrows federal claims in that latter action were precluded by both res judicata and the contractual obligations imposed by the settlement of the first action. The Ninth Circuit found no abuse of discretion in the district courts decision to decline supplemental jurisdiction over Morrow II state-law claims. Morrow challenged the Ninth Circuit ruling in a November 2006 petition to the United States Supreme Court for a writ of mandate or certiorari. The Supreme Court denied Morrows petition in May 2007.

C. Morrow III

On January 10, 2006, while Morrow I and Morrow II were on appeal to the Ninth Circuit, Morrow filed Morrow v. City of Oakland (Super. Ct. Alameda County, 2006, No. RG06250127) (Morrow III), the lawsuit at issue here. As in Morrow II, the present lawsuit is against the City of Oakland and its attorneys; Burnham Brown attorneys who once represented Morrow; and Castanedas attorneys. All claims are based on events from December 2001, when the City accepted service of the Castaneda complaint, to August 2005, when the district court enforced the Castaneda settlement and dismissed Morrow II.

Morrow alleges seven causes of action. He claims that Burnham Brown attorney Leed, who once represented him in the Castaneda litigation, committed fraud in delaying notification of the civil complaint, answering discovery requests without his authorization, and settling the case without his authorization (first cause of action). Morrow claims legal malpractice by the City attorneys and Burnham Brown defense attorneys (second cause of action). Morrow alleges an abuse of civil process by Castanedas attorneys in obtaining for their client a restraining order against Morrow, and by City attorney Hodgkin and defense attorney Leed in permitting issuance of that order (third cause of action). Morrow also charges individual attorney defendants with racial discrimination and deprivation of his state constitutional rights of due process and equal protection during the litigation of the Castaneda case (fourth cause of action). Morrow charges all defendants with negligent and intentional infliction of emotional distress for the way they conducted the Castaneda litigation (fifth and sixth causes of action), and defamation for statements by defendants about the Castaneda settlement that were reported in a newspaper article (seventh cause of action).

All defendants demurred to Morrows complaint and, on June 1, 2006, the trial court sustained the demurrers. The court sustained the demurrers without leave to amend for all but the defamation cause of action against Attorney Roberts, who represented Castaneda. After Morrow amended his complaint to reassert the defamation cause of action, the court sustained Attorney Robertss demurrer to the amended complaint on September 5, 2006.

Meanwhile, the City had filed a cross-complaint alleging breach of the Morrow I settlement agreement by Morrows prosecution of Morrow II and Morrow III. The court overruled Morrows demurrer to the Citys cross-complaint on June 16, 2006. The City moved for summary judgment on its cross-complaint and the court granted the motion on September 5, 2006.

Morrow unsuccessfully moved for reconsideration of the courts orders on the demurrers and summary judgment. Judgment on the cross-complaint was entered on December 12, 2006, awarding the City $26,565.29 against Morrow for breach of the Morrow I settlement agreement. The record on appeal does not contain any judgment of dismissal following the other defendants demurrers to Morrows complaint and amended complaint.

Morrow appealed the orders sustaining defendants demurrers to his complaint and amended complaint on December 12, 2006. He filed a supplemental notice of appeal to the judgment on the Citys cross-complaint on February 7, 2007. An order sustaining a demurrer is not an appealable order. (Code of Civ. Proc,  904.1.) However, we will deem the judgment on the Citys cross-complaint to include dismissal of Morrows complaint, and will deem the other orders sustaining demurrers to incorporate judgments of dismissal. (Hinman v. Dept. of Personnel Admin. (1985) 167 Cal.App.3d 516, 520.)

discussion

In sustaining demurrers to Morrows complaint and amended complaint, the trial court concluded that the causes of action were barred by (1) the collateral estoppel effect of the judgments in Morrow I and Morrow II, where allegations of misconduct in the Castaneda case had also been made; (2) the terms of the Morrow I settlement agreement, which released the City and Burnham Brown attorneys from liability arising from the Castaneda litigation; and (3) the litigation privilege that shielded all defendants from liability for statements made during the Castaneda litigation.

On appeal, Morrow argues that Morrow I and Morrow II are not entitled to collateral estoppel effect because the district court did not have subject matter jurisdiction when it rendered judgment. It is true that a judgment entered without fundamental, subject matter jurisdiction may be collaterally attacked as void and will not be given collateral estoppel effect. (Pacific Mut. Life Ins. Co. v. McConnell (1955) 44 Cal.2d 715, 725-726.) But the Morrow I and Morrow II judgments are valid.

Morrow himself invoked the jurisdiction of the federal court by asserting federal causes of action for violation of civil rights, and by filing Morrow II in federal court. (28 U.S.C.  1331.) Morrow claims that the district court lost jurisdiction when it questioned the soundness of his federal claims. Morrow notes that the district court, to encourage settlement when a motion to dismiss was pending in Morrow I, advised Morrow that his complaint did not state viable federal claims. Morrow misinterprets these comments as a determination that subject matter jurisdiction was absent. In fact, the comments show that the district court was exercising jurisdiction over the federal claims and was warning Morrow that it was inclined to rule against him on the merits of those claims. Unless and until the federal claims were dismissed, and pendent jurisdiction over the state claims declined, the federal court retained jurisdiction over Morrows cases.

Morrows other attacks on the Morrow I and Morrow II judgments are equally unavailing. His argument that the district court acted arbitrarily, with bias, and denied Morrow a full hearing on his claims provides no grounds for disregarding the judgments. Morrow has had an opportunity to make these claims to the Ninth Circuit and the United States Supreme Court, which rejected them. The judgments are final and may not be reexamined. Any alleged improprieties in the district court proceedings are irrelevant at this point.  An erroneous judgment is as conclusive as a correct one.  (Busick v. Workmens Comp. Appeals Bd. (1972) 7 Cal.3d 967, 975.)

The final judgments were entitled to collateral estoppel effect. Morrow is mistaken in arguing that a prior judgment arrived at by stipulation, like Morrow I, is not preclusive. [A] stipulated judgment may properly be given collateral estoppel effect, at least when the parties manifest an intent to be collaterally bound by its terms. (CaliforniaState Auto. Assn. Inter-Ins. v. Superior Court (1990) 50 Cal.3d 658, 664.) The settlement agreement in Morrow I expressly states Morrows intent to release the City defendants from all claims, demands, accounts, actions, causes of action, obligations, proceedings, losses, liabilities, and sums of money of every kind and character whatsoever . . . including . . . all claims . . . which are in any way related to the Castaneda lawsuit.

Morrows final argument against the trial courts use of collateral estoppel rests on the claim that the court precluded issues that were not identical to those decided in the prior federal cases. Morrow notes that the current superior court action, Morrow III,alleges misconduct beyond April 20, 2004, and those acts were not the subject of prior litigation. Morrow misunderstands the trial courts order. The trial court held that [a]ll of Plaintiffs claims relating to conduct occurring prior to April 20, 2004 [when Morrow I was settled] are barred by the judgment of the federal court in Morrow I. The trial court held that Morrows claims relating to conduct occurring after April 20, 2004, are barred on other legal grounds, including the litigation privilege. (Civ. Code,  47, subd. (b)(2).)

We now turn to the litigation privilege. The trial court properly found that claims dependent on allegations that Castanedas attorneys improperly sought a restraining order against Morrow, or allegations disputing attorney statements made about the Castaneda litigation, are barred by the litigation privilege. The litigation privilege shields a publication made in judicial proceedings. (Civ. Code,  47, subd. (b)(2).) The privilege afford[s] litigants and witnesses [citation] the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions. (Silberg v. Anderson (1990) 50 Cal.3d 205, 213.) The privilege applies to both communicative conduct and noncommunicative acts that are necessarily related to the communicative conduct. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1065.) Morrows argument on appeal that his abuse of process claim was founded on conduct, rather than communication, is thus to no avail. The gravamen of an abuse of process claim like Morrows is communicative conduct, and thus barred by the litigation privilege. (Ibid.) It is also irrelevant to application of the privilege that Morrow asserts that the attorneys acted with malice in seeking a restraining order, and in making statements about the Castaneda litigation. [T]he litigation privilege is absolute and applies regardless of malice. (Id. at p. 1063.)

The final issue is the summary judgment granted on the Citys breach of contract claim. The trial court properly found that Morrow breached the Morrow I settlement agreement by failing to honor his agreement releasing the City defendants from liability arising from the Castaneda case. Morrow argues that the Morrow I agreement is enforceable only in federal court because Morrows attorney indicated such an intention in a letter to the City predating execution of the settlement agreement. But the settlement agreements release of liability includes an integration clause expressly providing that the release contains the entire agreement between the parties hereto and supersedes any and all prior oral and written agreements and understandings, and no representation, warranty, condition, understanding or agreement of any kind with respect to the subject matter hereof shall be relied upon by the parties unless incorporated herein. The terms of the Morrow I settlement agreement therefore control, and they do not limit enforcement to the district court.

Morrow contends that the superior courts finding that he breached the Morrow I settlement by filing Morrow III conflicts with the district courts earlier determination that Morrow did not breach the Morrow I settlement by filing Morrow II. Morrow relies upon the district courts February 8, 2005 order enforcing the Morrow I settlement and dismissing Morrow I, in which the court noted that Morrow has not yet breached the agreement and remains bound by its terms. There was no breach at that point because the City had only recently satisfied the conditions of the Morrow I settlement by approving the Castaneda settlement and changing its investigative finding, and had yet to satisfy the final condition of monetary payment due upon receipt of the release. Once all conditions were satisfied and the release delivered to the City, the settlement agreement was fully operative and further prosecution of Morrows grievances against the City arising from the Castaneda lawsuit constituted a breach of contract. The superior courts finding of a breach of contract is thus fully consistent with the district courts February 2005 order.

The superior courts summary judgment ruling is also consistent with the district courts September 2005 order dismissing Morrow II. Nothing in that latter order suggests, as Morrow argues, that it was permissible, if not advisable, for him to file Morrow III to pursue state claims against the City defendants. As noted above, the district court in Morrow II found that the federal cause of action was barred by res judicata and the terms of the Morrow I settlement agreement and declined to exercise supplemental jurisdiction over Morrows state law claims. In declining jurisdiction over the state claims, the district court observed: Plaintiff has presented a diverse set of state law claims whichif indeed they are still viable in light of the clear and broad settlement agreement in [Morrow I]will be more efficiently handled in state court. Morrow now focuses on the comment that the state claims would be more efficiently handled in state court and misconstrues the comment as permission to file Morrow III. But the district court was simply explaining why it was declining jurisdiction; it was not resolving the merits of the claims. Morrows construction of the district courts comments also fails to credit the courts cautionary note that the claims might not be viable in light of the settlement agreement. What the district court presaged, the superior court held.

disposition

The judgments are affirmed.

_________________________

Sepulveda, J.

We concur:

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Reardon, Acting P.J.

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Rivera, J.

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[1] The parties have slowed our review of the record by their noncompliance with court rules. Appellant Morrows appendix omits required documents (including the notice of appeal and judgment); is not arranged chronologically; does not have indices; and is not consecutively numbered. (Cal. Rules of Court, rules 8.120(b)(1), 8.124(b)(1)(A), 8.124(d)(1), 8.144(a) & (b).) Respondents City and Burnham Browns appendices are not arranged chronologically. (Cal. Rules of Court, rules 8.124(d), 8.144(a)(1)(C).) All of the parties have failed, in varying degrees, to support factual statements in their briefs with citations to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C).) The parties are cautioned to comply with court rules in the future.

[2] It is not clear from the record if Morrow remains an Oakland police officer, but he remained on the force through at least August 2005. Morrow is also a law school graduate.

[3] As did the trial court, we have taken judicial notice of federal court records. (Evid. Code,  452, subd. (d)(2).)