Cardenas et al v. Whittemore et al, No. 3:2013cv01720 - Document 14 (S.D. Cal. 2014)
Court Description: ORDER denying 5 Motion to Dismiss, denying as moot 6 Motion to Strike Evidence. Signed by Judge Larry Alan Burns on 9/11/14. (kas)
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Cardenas et al v. Whittemore et al Doc. 14 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSEPH CARDENAS, et al., CASE NO. 13cv1720-LAB (KSC) Plaintiff, 12 ORDER DENYING MOTION TO DISMISS; AND vs. 13 14 ORDER DENYING AS MOOT MOTION TO STRIKE EVIDENCE ROBERTSON WHITTEMORE, 15 [Docket Numbers 5 & 6.] Defendant. 16 17 Background 18 On February 13, 2013, the Court reached its verdict in Cardenas v. Whittemore, 19 10cv1808-LAB-KSC ("Prior Action"), in which Plaintiffs sought relief for trespass. The Court 20 determined an injunction was unnecessary, and nominal damages were appropriate. 21 According to the Complaint, on the night of February 13, after the oral verdict was 22 issued, Whittemore ("Defendant") trespassed on Plaintiffs' property, and rang the doorbell 23 then fled before it was answered. He repeated this action eight times throughout the night. 24 Plaintiffs' handyman claims that he saw Defendant taking photographs of Plaintiffs' property 25 on June 29, and on this same night Defendant rang the doorbell twice more. Plaintiffs also 26 allege that Defendant has been taking other photographs of Plaintiffs' property, with the 27 intention of depriving them of the quiet use and enjoyment of their property. 28 /// -1- 13cv1720 Dockets.Justia.com 1 Around the same time, Plaintiffs sought and received a Temporary Restraining Order 2 from the San Diego Superior Court. Defendant claims that the parties made an agreement 3 in settlement of this restraining order claim on June 19, under which Defendant would orient 4 his lights so they did not bother Plaintiffs, and also cease photography of Plaintiffs' property. 5 In the present action, Plaintiffs sued for damages and an injunction based on claims of 6 trespass to real property and private nuisance. 7 Motions 8 Defendant has moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), claiming that 9 (1) the present action is barred by either res judicata or collateral estoppel, because the 10 claims were either previously adjudicated in the Prior Action, or Plaintiffs could have 11 adjudicated them; (2) Defendant's alleged photography is privileged conduct related to 12 litigation, and therefore not actionable; (3) the Temporary Restraining Order Plaintiffs 13 requested constitutes a state action that shouldn't be overruled by federal action; and (4) 14 Plaintiffs' tort claims are barred because they have the option to seek a contractual remedy, 15 based on the contract made on June 19. Plaintiffs moved to strike evidence submitted in 16 support of the motion. 17 Motion to Dismiss: Collateral Estoppel and Res Judicata 18 Defendant points out that final judgment was entered on March 11, 2013, and the 19 alleged offending conduct took place before that. While true, this is beside the point. The 20 Court announced its verdict on February 13, 2013, and Plaintiffs could not have amended 21 their complaint to bring a new claim or to augment their existing claim based on later events. 22 See Kronkright v. Gardner, 31 Cal. App. 3d 214, 217 (Cal. App. 2 Dist. 1973) (holding that 23 a “prior judgment is res judicata on matters which were raised or could have been raised, on 24 matters litigated or litigable”); Bridgeford v. Pac. Health Corp., 202 Cal. App. 4th 1034, 25 1042–43 (Cal. App. 2 Dist. 2012) (citing authority concerning collateral estoppel). 26 While the omplaint mentions Defendant’s earlier actions, it does so in an effort to put 27 the facts of this litigation into a logical historical context, and to urge the Court to balance the 28 /// -2- 13cv1720 1 equities in their favor. The Complaint disclaims any remedy based on events that were the 2 subject of the Prior Action. (Compl., ¶¶ 19–20.) 3 It should be noted that the Court, in its Order of Judgment against Defendant on 4 March 11, specifically noted that the award of nominal damages was intended to be a 5 warning, stating it was a "proverbial shot fired across his bow." (Compl., Ex. A.) The Court 6 further noted that its “finding of trespass will make it difficult for him to argue that future 7 intrusions are innocent or the product of mistake. In light of the Court's findings and award, 8 future trespasses or similar torts would seem more blameworthy and intentional . . . ." (Id.) 9 The Court contemplated that its judgment would serve as a warning to deter Defendant from 10 future trespasses. If deterrence has failed, denying additional necessary relief would be 11 inequitable. 12 Plaintiffs claim that Defendant's photography was intended to harass, and he in turn 13 argues his photography was privileged. These are factual questions not appropriate for 14 adjudication on the pleadings alone. Defendant cites no legal authority that suggests the 15 restraining order precludes further civil action, therefore previous state action doesn't 16 preclude Plaintiffs' claim. Finally, the agreement between the two parties on June 19 does 17 not limit Plaintiffs' freedom to pursue a remedy in tort law. 18 Motion to Dismiss: Privileged Conduct 19 Defendant claims that his alleged photography of Plaintiffs' property is protected under 20 litigation privilege doctrine. The litigation privilege applies to any communication that is made 21 (1) in judicial or quasi-judicial proceedings; (2) by litigants or other authorized participants; 22 (3) to achieve the objects of the litigation; and (4) that has some logical connection to the 23 action. Action Apartment Assn., Inc. v. City of Santa Monica, 41 Cal.4th 1232, 1241 (2007). 24 25 The motion to dismiss points out that one of the photographs, attached to the 26 Complaint as Exhibit E, was used in connection with the Prior Action. But, as discussed, 27 Plaintiffs are not bringing any claims based on earlier activity, even if that activity is 28 mentioned in the omplaint. The photography at issue here occurred after the verdict in the -3- 13cv1720 1 Prior Action had been announced, and even after entry of judgment in both state and federal 2 cases. (Compl., ¶¶ 25–26.) The motion does not identify any other litigation-related purpose 3 for the photography, and the Complaint alleges facts suggesting it was unrelated to any 4 litigation. For example, Defendant is alleged to have taken photographs of Plaintiffs’ deck 5 repeatedly at night. Furthermore, the claim is not merely that Defendant took photographs, 6 but rather that he did so in an unnecessarily bizarre and intrusive manner that amounted to 7 a nuisance. Even assuming photography itself was privileged, the manner in which it was 8 allegedly carried out was not. See Cabanilla v. Wells Fargo Bank, N.A., 2013 WL 1633626, 9 at *7 (Cal. App. 4 Dist. 2013) (citing Fletcher v. Western Nat’l Life Ins. Co., 10 Cal. App. 3d 10 376, 395–96 (Cal. App. 4 Dist. 1970)) (“Even if it could be said that defendants were 11 asserting their legal rights in good faith, they were not privileged to do so in an outrageous 12 manner.“) 13 Motion to Dismiss: No Review of State Action Available 14 Defendant argues that the Temporary Restraining Order issued by the state court 15 precludes Plaintiffs' claims because it was a final judgment that the parties settled afterwards, 16 and Plaintiffs are seeking an injunction in federal court that would interfere with that state 17 court ruling. 18 Under California law, a Temporary Restraining Order does not preclude a later civil 19 suit. California Code of Civil Procedure § 527.6 governs restraining orders based on civil 20 harassment, like the one sought by Plaintiffs, and subsection (u) of this code provides that 21 petitioners may pursue other civil remedies. 22 This is not a review of a state court judgment, such as would deprive the Court of 23 jurisdiction under the Rooker-Feldman doctrine. See Exxon Mobil Corp. v. Saudi Basic Indus. 24 Corp., 544 U.S. 280, 284–85 (2005) (holding that the Rooker-Feldman doctrine is confined 25 to “cases brought by state-court losers complaining of injuries caused by state-court 26 judgments rendered before the district court proceedings commenced and inviting district 27 court review and rejection of those judgments”). Plaintiffs did not lose in state court; they 28 won. And after they won, the parties entered into an agreement settling past claims. In -4- 13cv1720 1 addition, they are not seeking review of any state court judgment. Nor does any abstention 2 doctrine apply here, because there are no pending state court actions. 3 Motion to Dismiss: Election of Remedies 4 Defendant claims that Plaintiffs orally agreed to a contract in settlement of the court 5 action granting the Temporary Restraining Order, memorialized by Exhibit C to the 6 Complaint, in which Defendant agreed to leave his lights configured in a certain way, and to 7 cease photographing Plaintiffs' property. Defendant contends that, by making this agreement, 8 Plaintiffs relinquished their right to a remedy in tort, and instead must pursue a contractual 9 remedy. 10 Exhibit C is letter signed by Defendant’s counsel, agreeing to a particular arrangement 11 of his lights, and agreeing not to photograph Plaintiffs’ property. But even assuming this is 12 part of an enforceable contract, the doctrine of election of remedies does not apply here. 13 Under California law, the doctrine is part of the doctrine of estoppel. Commercial 14 Centre Realty Co. v. Superior Court, 7 Cal.2d 121, 129 (1936). It finds application when a 15 party has elected one of two inconsistent remedies, and changing that election would 16 prejudice the other party. Id. It has no application here, because Plaintiffs did not elect any 17 remedy, either in state court or this Court, inconsistent with the remedies they seek here. 18 Moreover, Defendant has not been prejudiced in any way. 19 Furthermore, even if election of remedies applied here, Plaintiffs would be entitled to 20 amend their complaint to sue for breach of the settlement agreement instead of suing under 21 a nuisance theory, and would be entitled to the same relief either way, and perhaps even 22 greater relief under a contract theory. The agreement (assuming it is an enforceable contract) 23 forbids any photography of Plaintiffs’ property altogether. It does not address trespass, and 24 certainly does not contemplate Defendant would be permitted to ring Plaintiffs’ doorbell 25 repeatedly at night. 26 Motion to Strike Evidence 27 28 Plaintiffs’ motion asks the Court to strike any mention of the settlement agreement from the motion. Because the motion is being denied, this request is moot. -5- 13cv1720 1 2 3 Conclusion and Order For reasons discussed above, the motion to dismiss is DENIED, and the motion to strike evidence is DENIED AS MOOT. 4 5 6 IT IS SO ORDERED. 7 DATED: September 11, 2014 ___________________________________ 8 9 HONORABLE LARRY ALAN BURNS United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- 13cv1720
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