EDWARD M. CHEN, District Judge.
Plaintiff Michael David Nilsen, proceeding pro se, has filed suit against the Sutter Defendants, asserting a violation of his civil rights as protected by 42 U.S.C. §§ 1983 and 1985. The gist of Mr. Nilsen's complaint is that he did not consent to a blood draw taken by Daniel Hickey, a phlebotomist and employee of Sutter Lakeside Hospital. Previously, the Court granted the Sutter Defendants' motion to stay proceedings because it appeared likely that collateral estoppel would preclude Mr. Nilsen's claims against the Sutter Defendants. See Docket No. 77 (order). The Sutter Defendants now move for summary judgment based on collateral estoppel.
Having considered the parties' briefs and accompanying submissions, the Court finds this matter suitable for resolution on the papers, without oral argument.
In his complaint, Mr. Nilsen alleges as follows. On April 10, 2015, at 2:30 a.m., Mr. Nilsen was driving home. A Lake County Sheriff's Office SUV was traveling ahead of him, at least 10 mph below the speed limit. See Compl. ¶¶ 10-11. Mr. Nilsen turned into his driveway and shortly thereafter the SUV came up; it had made a U-turn and followed him. The deputy driving the SUV advised Mr. Nilsen that he had been following the SUV too closely in violation of the California Vehicle Code. The deputy then called the California Highway Patrol ("CHP") because he thought he smelled alcohol coming from Mr. Nilsen's car. See Compl. ¶¶ 12-14 (alleging that CHP was called "to conduct a `turnover' DUI investigation").
According to Mr. Nilsen, two CHP officers arrived to conduct the DUI investigation. Mr. Nilsen refused to take a field sobriety test. The officers then arrested Mr. Nilsen, charging him with driving under the influence, driving on a suspended license, and resisting peace officers. See Compl. ¶¶ 16-18. The resisting charge was eventually dropped. See Compl. ¶ 19; see also Defs.' RJN, Ex. J (criminal minutes) (reflecting charges).
Mr. Nilsen alleges that the CHP officers took him to Sutter, where Mr. Hickey, a phlebotomist, was assigned to draw Mr. Nilsen's blood. Mr. Nilsen refused to consent to having his blood drawn, absent a warrant. See Compl. ¶¶ 20-21. According to Mr. Nilsen, "[u]ltimately the blood was drawn, absent either consent or a warrant." Compl. ¶ 22. Mr. Nilsen maintains that, although Defendants claim oral consent was given, it was not, and Mr. Nilsen never signed the blood draw consent form used for suspected DUI patients. See Compl. ¶¶ 23-25.
As alleged in the complaint, Mr. Nilsen was arraigned on misdemeanor charges in June 2015. See Compl. ¶ 27. Subsequently, Mr. Nilsen filed a motion to suppress evidence related to the blood draw. See Compl., Ex. A (motion to suppress). In the motion, Mr. Nilsen claimed that he "repeatedly declined" to give consent to the blood draw. Compl., Ex. A (Mot. at 4). A hearing on the motion to suppress was held on July 27 and August 3, 2015; during the hearing, Mr. Hickey provided testimony. See Docket No. 70-1 (Pl.'s Ex. 5) (transcript). On August 17, 2015, the state superior court issued an oral ruling denying the motion to suppress. See RJN, Ex. A (transcript). The court noted, inter alia, that the testimony of Mr. Hickey was "instrumental":
RJN, Ex. A (Tr. at 5-7).
In September 2015, Mr. Nilsen filed a petition with the Appellate Division of the state superior court, challenging the ruling on the motion to suppress. See RJN, Ex. A (petition for writ). In the petition, Mr. Nilsen asserted, inter alia, that "the blood draw was warrantless and non-consensual." RJN, Ex. A (Pet. at 3). The Appellate Division denied the petition but deemed Mr. Nilsen's filing a notice of appeal. See RJN, Ex. B (order, filed on October 2, 2015); see also Cal. Pen. Code § 1538.5(j) ("If the property or evidence seized relates solely to a misdemeanor complaint, and the defendant made a motion for the return of property or the suppression of evidence in the superior court prior to trial, both the people and defendant shall have the right to appeal any decision of that court relating to that motion to the appellate division, in accordance with the California Rules of Court provisions governing appeals to the appellate division in criminal cases.").
On February 18, 2016, a three-judge panel denied the appeal. See Compl., Ex. G (transcript). The panel noted, inter alia, as follows:
Compl., Ex. G (Tr. at 6).
On March 28, 2016, Mr. Nilsen filed a notice of appeal of the Appellate Division decision on the motion to suppress. See RJN, Ex. C (notice of appeal). He also filed, on the same day, an application to certify the case for transfer to the California Court of Appeal. See RJN, Ex. D (application). On April 4, 2016, the Appellate Division issued an order, effectively rejecting the notice of appeal. The Appellate Division noted that Mr. Nilsen had already appealed the motion to suppress to the Appellate Division and that the Appellate Division had affirmed the suppression ruling on February 18, 2016. The Appellate Division also noted that a remittitur had already issued on March 24, 2016. See RJN, Ex. E (order). Several days later, the Appellate Division denied Mr. Nilsen's application for certification for transfer to the California Court of Appeal. It noted that "[t]he time to certify has elapsed. The decision rendered on February 18, 2016 has now become final. A remittitur was filed on March 24, 2016." RJN, Ex. F (order).
Thereafter, the state criminal proceedings against Mr. Nilsen on the misdemeanor charges continued. Approximately two years later, on February 2, 2018, the state superior court ruled on two motions that had been filed by Mr. Nilsen: (1) "a motion to retroactively grant the suppression motion" and (2) a motion to dismiss "for lack of a speedy trial" pursuant to California Penal Code § 1382. RJN, Ex. G (Tr. at 2, 5). The court denied the first motion, noting that,
RJN, Ex. G (Tr. at 3).
However, the state superior court granted the second motion. The court noted, as an initial matter, that "virtually every delay was attributed to the defendant" such that it could be "successfully argued that the one thing . . . that [Mr. Nilsen] most desires to avoid is a speedy trial." RJN, Ex. G (Tr. at 4). Nevertheless, the court stated, California Penal Code § 1382(3) "requires the dismissal of a misdemeanor if the case is not brought to trial within 30 days for a person in custody or 45 days for a person out of custody." RJN, Ex. G (Tr. at 5). Although the record before the court indicated that Mr. Nilsen had consented to a setting outside of the statutory period, or had waived time, California law provides that a consent or waiver by a pro se litigant "is ineffective unless he or she is advised about the time limits under [§] 1382 and about the effect of a dismissal if such waiver or consent is not given." RJN, Ex. G (Tr. at 6). Because there was "no transcript or other independent evidence that [Mr. Nilsen] was actually informed . . . of the provisions or effects of [§] 1382," his "time waiver was not effective," and, because "substantially more than 45 days [had] elapsed without a trial," the court granted Mr. Nilsen's motion to dismiss. RJN, Ex. G (Tr. at 8).
Mr. Nilsen does not dispute that the state superior court granted his motion to dismiss but "le[ft] the suppression ruling in place." RJN, Ex. H (email from Mr. Nilsen to defense counsel). A few weeks after the ruling of the state superior court, Mr. Nilsen filed a motion titled "Motion to Vacate a Void Judgment for Lack of Subject Matter and [I]n Personam Jurisdiction." See RJN, Ex. H (motion, filed on February 20, 2018). The purpose of this motion was to "vacat[e] . . . the adverse ruling [on the] Motion to Suppress." RJN, Ex. H (Mot. at 1). Mr. Nilsen argued, inter alia, that he "was never actually arraigned, read his rights or made to enter his personal plea"; that "the accusatory pleading was . . . a nullity" because too much time had passed "between the arrest and the filing of charges"; and that, without a charging instrument, the state superior court lacked jurisdiction. RJN, Ex. H (Mot. at 2-3). It appears that the prosecution did not file a written opposition to the motion. The parties have not provided any evidence as to what decision was rendered on Mr. Nilsen's motion. Thus, as the record stands, the order denying the motion to suppress is undisturbed, even though the criminal action against Mr. Hickey has been dismissed.
In a prior order, the Court granted the Sutter Defendants' motion to stay because it appeared likely that collateral estoppel would apply to preclude Mr. Nilsen's claims. See Docket No. 77 (order). As the Court explained,
Ayers v. Richmond, 895 F.2d 1267, 1270-71 (9th Cir. 1990).
Docket No. 77 (Order at 5-6).
Compared to Ayers and Johnston, the instant case presents an even stronger case for application of collateral estoppel. The state superior court denied Mr. Nilsen's motion to suppress evidence and, after it did so, Mr. Nilsen actually appealed but was not successful on that appeal before the Appellate Division. The Appellate Division thereafter denied a second attempt by Mr. Nilsen to overturn the suppression ruling, and that decision was followed by another ruling from the state superior court refusing to disturb the suppression decision, although it ultimately granted Mr. Nilsen's motion to dismiss on an independent ground. In short, Mr. Nilsen pursued appeals of the suppression order and lost at each round.
In opposing summary judgment herein, Mr. Nilsen essentially argues that collateral estoppel should not apply because the final judgment in his criminal proceeding may be vacated — specifically, with respect to the suppression decision — based on his "Motion to Vacate a Void Judgment for Lack of Subject Matter and [I]n Personam Jurisdiction." See RJN, Ex. H (motion, filed on February 20, 2018). The problem for Mr. Nilsen is that there is no evidence that the final judgment has actually been vacated as a result of his motion. That the prosecution did not respond to his motion, see Sur-Reply at 2, is immaterial. Mr. Nilsen has not offered any evidence of a state court decision accepting the merits of the arguments in his motion. Thus, as the record stands before the Court, there is a final judgment and that judgment, at least on the suppression issue, is not in Mr. Nilsen's favor.
Mr. Nilsen protests that collateral estoppel still should not apply because the state superior court would not have denied his motion to suppress had it known that Mr. Hickey lied during his testimony before that court. But California law does not allow a judgment to be collaterally attacked on the ground that evidence was falsified or destroyed. See Cedars-Sinai Med. Ctr. v. Superior Court, 18 Cal.4th 1, 10 (1998) (in addressing whether to create a tort remedy for intentional first party spoliation, noting that "a concern for the finality of adjudication . . . underlies [a] line of cases that forbid direct or collateral attack on a judgment on the ground that evidence was falsified, concealed, or suppressed"; "[s]imilarly, under the doctrines of res judicata and collateral estoppel, a judgment may not be collaterally attacked on the ground that evidence was falsified or destroyed"); Eichman v. Fotomat Corp., 147 Cal.App.3d 1170, 1175 (1983) (stating that "[f]raud by a party will not undermine the conclusiveness of a judgment unless the fraud was extrinsic, i.e., it deprived the opposing party of the opportunity to appear and present his case").
Awabdy v. City of Adelanto, 368 F.3d 1062 (9th Cir. 2004), is not to the contrary as it concerns a situation different from that presented herein. More specifically, in Awaby, the plaintiff brought a § 1983 claim for malicious prosecution — i.e., prosecution without probable cause. The plaintiff had been charged in state court with embezzlement, and the superior court determined that he should be held to answer after a preliminary hearing. The Ninth Circuit noted that this decision by the state court "to hold a defendant to answer after a preliminary hearing constitutes prima facie — but not conclusive — evidence of probable cause," i.e., precisely because only a preliminary hearing was at issue. Id. at 1067. The plaintiff could rebut the prima facie finding of probable cause for purposes of his § 1983 malicious prosecution claim with evidence "showing that the criminal prosecution was induced by fraud, corruption, perjury, fabricated evidence, or other wrongful conduct undertaken in bad faith." Id. It was in this context that the Ninth Circuit went on to state that,
Id. at 1068 (emphasis added). The instant case is distinguishable from Awabdy because Mr. Nilsen was afforded a full and fair opportunity to argue that the evidence of the blood draw should have been suppressed. The hearings before the state courts (trial and appellate) were not preliminary-type hearings, as in Awabdy.
Accordingly, the Court grants the Sutter Defendants' motion for summary judgment based on collateral estoppel.
With the Court now granting the Sutter Defendants' motion for summary judgment, it appears that all claims have been resolved against all Defendants in this case, except for those claims asserted against the two CHP officers (i.e., Ryan Erickson and C.J. Tuggle). Neither CHP officer has made an appearance in the case as of yet.
In October 2016, Mr. Nilsen moved for entry of default against the officers, but, shortly thereafter, the Clerk of Court declined entry of default. See Docket Nos. 40, 45 (motion and Clerk's notice). In August and September 2017, Mr. Nilsen moved again for entry of default but the Court deferred ruling on the motions because the state court criminal proceeding was then still pending. See, e.g., Docket No. 81 (Order at 1).
Because the state court criminal proceedings have concluded, the Court now turns to Mr. Nilsen's motions for entry of default. Mr. Nilsen claims that service on the CHP officers was properly effected pursuant to California Code of Civil Procedure § 415.20(a). See Docket No. 78 (Mot. at 1). Section 415.20(a), however, is inapplicable because that statutory provision applies to corporations and the like, as well as public entities, not individuals. Section 415.20(b) does apply to individuals. However, Mr. Nilsen has not established that service was properly effected pursuant to § 415.20(b). Notably, § 415.20(b) allow for substitute service only when "a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served." Cal. Code Civ. Proc. § 415.20(b). Mr. Nilsen has failed to show there was an attempt to effect personal delivery with reasonable diligence.
The Court therefore denies the motions for entry of default.
As the individual CHP officers still have not been served in this case, the Court ordinarily would have the option of dismissing the action against them without prejudice or ordering that service be made on them within a specified time. See Fed. R. Civ. P. 4(m) (providing that, "[i]f a defendant is not served within 90 days after the complaint is filed, the court — on motion or on its own after notice to the plaintiff — must dismiss the action without prejudice against that defendant or order that service be made within a specified time"). The instant case, however, presents a special situation in that the Court's collateral estoppel analysis above would appear to be applicable to not only the Sutter Defendants but also to the individual CHP officers. Given this circumstance, the Court hereby orders Mr. Nilsen to show cause as to why his claims against the individual CHP officers should not be dismissed, in particular, based on the Court's collateral estoppel analysis presented herein.
For the foregoing reasons, the Court grants the Sutter Defendants' motion for summary judgment and denies Mr. Nilsen's motions for entry of default.
This order disposes of Docket No. 101.
In any event, whether Mr. Hickey complied or failed to comply with hospital policy is essentially immaterial because whether there was compliance with hospital policy does not dictate whether or not there was a violation of Mr. Nilsen's constitutional rights. Finally, even if Mr. Hickey had lied about compliance with hospital policy, that does not necessarily mean that he lied about oral consent.
