Phillip Baranchik v. Mario Fizulich

In 2008, defendants and respondents

1 Redondo Beach

police officers Mario Fizulich, Phillip Ho, and Ellen

Tumbocon interacted with plaintiffs and appellants Phillip

Baranchik and Eric Baranchik.

2 The details of the

interaction and subsequent arrests and criminal

prosecutions are more fully described later in this opinion.

Based on the interaction, Phillip, Eric, and Tiffeney Pyle

3

filed a federal civil action asserting claims for violation of

their constitutional rights under 42 U.S.C. § 1983, including

excessive force, false arrest, and malicious prosecution,

among other claims. The parties stipulated to allow

plaintiffs to dismiss their federal case and refile in state



1 The City of Redondo Beach, Redondo Beach Police

Chief W. Joseph Leonardi, Sergeant Rody Contreras,

Officers John Anderson, Regina Flores, and Sharon Rose

were originally named as defendants, but they are not

parties to this appeal.

2 Because Phillip Baranchik and Eric Baranchik share

the same last name, we refer to them by first name.

3 Plaintiff Tiffeney Pyle was Phillip’s fiancé at the time

of the events in question, but she is not a party to this

appeal. For consistency, we also refer to Tiffeney by her first

name.

3

court. After the case was refiled, the trial court granted a

motion to strike Eric’s malicious prosecution claim and later

denied a motion to reinstate that claim. The court also

granted summary adjudication in favor of defendants on

Eric’s excessive force claim and Phillip’s false arrest claim.

Phillip and Eric appeal from the judgment. Phillip

contends the trial court erroneously granted summary

adjudication on his false arrest claim. Eric contends the

court erroneously concluded his excessive force claim was

barred as a matter of law under Heck v. Humphrey (1994)

512 U.S. 477, 486–487 (Heck). Eric also contends the court

erred when it denied his request to reinstate his claim for

malicious prosecution. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Underlying incident

Phillip, Eric, and Tiffeney were at a bar on the

Redondo Beach pier the evening of September 18, 2008.

They ordered more than one round of drinks. Phillip and

Tiffeney were involved in an argument with other patrons at

the bar. The incident was reported to the Redondo Beach

Police Department. A dispatch was issued about a bar fight.

Phillip left the bar and walked away from the pier. Eric and

Tiffeney followed shortly thereafter.

Officer Fizulich responded to the dispatch call around

11:40 p.m. As he was responding, he was informed one of

4

the participants in the fight had left the bar. Officer

Fizulich detained Phillip, who fit the description of the

suspect involved in the bar fight. Officer Fizulich observed

that Phillip had slurred speech and bloodshot, watery eyes,

and he smelled the odor of alcohol coming from Phillip.

In the meantime, Eric and Tiffeney were walking

toward Officer Fizulich and Phillip. Two other officers also

arrived on the scene—Officers Tumbocon and Ho. As Eric

approached, he said, “That’s my brother. What’s going on

here?” Officer Ho fired his taser at Eric, incapacitating him.

When Tiffeney saw Eric get tased, she panicked, and ran

around an outdoor shower area to get a better view of what

was happening. Officer Tumbocon intercepted Tiffeney,

pointing a taser at her and telling her to move back.

Tiffeney responded by beginning to back up, but as she did

so, she kicked her flip-flop off. The flip-flop and water from a

puddle flew toward Officer Tumbocon. Officer Tumbocon

believed Tiffeney was not complying with her commands and

fired her taser at Tiffeney.

After Phillip, Eric, and Tiffeney had been handcuffed

and seated on the curb, Officer Fizulich spoke with the

bartender from the bar. The bartender identified the three

as the individuals who were involved in a disturbance at the

bar.

The officers arrested Phillip for public intoxication in

violation of Penal Code section 647, subdivision (f),

4 but he



4 All further statutory references are to the Penal Code

unless otherwise stated.

5

was not charged in a criminal complaint. Eric was arrested

and charged with (1) assaulting Officer Tumbocon in

violation of section 243, subdivision (b); (2) resisting,

obstructing, or delaying a peace officer in violation of section

148, subdivision (a)(1); and (3) public intoxication in

violation of section 647, subdivision (f). Phillip, Eric, and

Tiffeney were all released from police custody by the

following day.

Eric’s criminal trial, appeal, and dismissal

On October 14, 2008, Eric was charged with (1)

assaulting Officer Tumbocon (section 243, subdivision (b));

(2) resisting, obstructing, or delaying a peace officer (section

148, subdivision (a)(1)); and (3) public intoxication (section

647, subdivision (f)). Eric’s jury trial took place in late 2009.

Eric contended at his trial that he was not guilty because

Officer Ho used excessive force by deploying his taser on

Eric. At the request of Eric’s defense attorney, the jury was

instructed with CALCRIM No. 2670 on the issue of excessive

use of force. The instruction states, in relevant part: “The

People have the burden of proving beyond a reasonable

doubt that at least one of Ellen Tumbocon, Phillip Ho and/or

Mario Fizulich was lawfully performing his or her duties as

a peace officer. If the People have not met this burden, you

must find the defendants not guilty of Count 1, violation of

Penal Code section 243(b) (Battery Against Peace Officer),

and Count 2, violation of Penal Code section 148(a)

6

(Resisting Peace Officer, Public Officer or EMT). [¶] A

peace officer is not lawfully performing his or her duties if he

or she is unlawfully arresting or detaining someone or using

unreasonable or excessive force when making or attempting

to make an otherwise lawful arrest or detention.”

(CALCRIM No. 2670.) The jury acquitted Eric of the public

intoxication and assault charges, but convicted him of

resisting, obstructing, or delaying a peace officer in violation

of section 148, subdivision (a)(1).

Eric’s conviction was affirmed on appeal by the

Appellate Division of the Los Angeles Superior Court on

August 8, 2012. The most relevant paragraph from the

opinion reads as follows: “Eric contends insufficient

evidence supports his conviction because Officer Ho was not

engaged in the lawful performance of his duties as a peace

officer when he deployed the taser gun. However, resolution

of this issue was a question of fact that was properly

resolved by the jury in rendering its verdict. As a reviewing

court, it is not our role to reweigh the evidence. (People v.

Duncan [(2008)] 160 Cal.App.4th [1014,] 1018.) The People

presented sufficient evidence to support Eric’s conviction

based on testimony that he failed to comply with Officer Ho’s

repeated orders to ‘stop,’ and by engaging in a physical

altercation with Officer Ho while other officers attempted to

conduct their investigation.”

On April 9, 2014, the criminal trial court granted Eric’s

petition to dismiss his criminal conviction under section

1203.4.

7

Federal lawsuit

Plaintiffs Phillip, Eric, and Tiffeney filed a civil

complaint in federal district court on September 15, 2010,

alleging civil rights violations under 42 U.S.C. § 1983,

including a claim of malicious prosecution. The district court

dismissed the malicious prosecution claim on March 29,

2011. In April 2012, the district court judge indicated he

would allow limited time to both sides for trial, and he

refused to continue the April 24, 2012 trial date. The parties

negotiated a stipulation to allow plaintiffs to dismiss the

federal case and refile in state court.

State lawsuit

Plaintiffs filed their complaint in state court on May

16, 2012. The court sustained a demurrer and granted

plaintiffs leave to amend. Plaintiffs filed a first amended

complaint. The causes of action relevant to this appeal were

all pursued under 42 U.S.C. § 1983, and, among other claims

not relevant to this appeal, alleged the following claims: (1)

the first cause of action by Eric against Officer Ho for

unreasonable force (excessive force claim); (2) the fourth

cause of action by Phillip against Officer Fizulich for false

arrest (false arrest claim); and (3) the seventh cause of

action by Eric against Officers Ho, Fizulich, and Tumbocon

for malicious prosecution (malicious prosecution claim).

Later, Judge Phrasel L. Shelton granted defendants’ motion

8

to strike Eric’s malicious prosecution claim, noting that

plaintiffs had not been granted leave to add a new claim.

Judge Stuart M. Rice subsequently denied Eric’s motion for

leave to file a second amended complaint to reinstate his

malicious prosecution claim.

In June 2013, defendants filed a motion for summary

judgment or adjudication, arguing that undisputed facts

demonstrate they were entitled to judgment as a matter of

law on all of plaintiffs’ claims. They argued that Officer

Fizulich was entitled to qualified immunity as to Phillip’s

false arrest claim because he reasonably believed that

probable cause existed to arrest Phillip for public

intoxication. They also argued that Eric’s conviction of

violating section 148 barred his excessive force claim against

Officer Ho. Judge Rice granted summary adjudication as to

each of Eric and Phillip’s claims, and all but one of Tiffeney’s

claims.5

After the superior court granted Eric’s petition for

dismissal of his conviction pursuant to section 1203.4 in

April 2014, Eric filed a November 2014 motion in the civil

case, seeking to vacate the prior summary adjudication of his

excessive force claim against Officer Ho. Eric’s motion to

vacate argued that circumstances had changed because his

conviction had been dismissed, and he therefore was no

longer barred from pursuing his excessive force claim

against Officer Ho. Defendants opposed the motion and



5 As noted earlier, Tiffeney is not a party to this

appeal.

9

renewed a motion for judgment on the pleadings, arguing

that even if the dismissal of Eric’s conviction meant that he

could proceed with his civil action for excessive force, his

claim was barred by the doctrine of collateral estoppel.6

Judge Rice denied plaintiffs’ motion to vacate the summary

adjudication order. The court entered judgment in favor of

defendants for causes of action asserted by Phillip and Eric,

except for a claim asserted under Monell v. New York City

Dept. of Social Services (1978) 436 U.S. 658, in the eleventh

cause of action, which was dismissed without prejudice.

DISCUSSION

Standard of review

Summary adjudication of false arrest and excessive force

claims

“A trial court properly grants summary judgment

where no triable issue of material fact exists and the moving

party is entitled to judgment as a matter of law. (Code Civ.

Proc., § 437c, subd. (c).) We review the trial court’s decision

de novo, considering all of the evidence the parties offered in

connection with the motion (except that which the court



6 Appellants’ opening brief argues that the court

incorrectly applied collateral estoppel to Eric’s excessive

force claim. Because we conclude that the trial court

correctly granted summary adjudication under Heck, we

need not consider the collateral estoppel argument.

10

properly excluded) and the uncontradicted inferences the

evidence reasonably supports. [Citation.] In the trial court,

once a moving defendant has ‘shown that one or more

elements of the cause of action, even if not separately

pleaded, cannot be established,’ the burden shifts to the

plaintiff to show the existence of a triable issue; to meet that

burden, the plaintiff ‘may not rely upon the mere allegations

or denials of its pleadings . . . but, instead, shall set forth the

specific facts showing that a triable issue of material fact

exists as to that cause of action . . . .’ [Citations.]” (Merrill v.

Navegar, Inc. (2001) 26 Cal.4th 465, 476–477.)

Denial of motion for leave to add a malicious prosecution

claim

“We review the trial court’s denial of the motion for

leave to file a second amended complaint for an abuse of

discretion. (Branick v. Downey Savings & Loan Assn. (2006)

39 Cal.4th 235, 242.)” (Ball v. FleetBoston Financial Corp.

(2008) 164 Cal.App.4th 794, 797.) We never presume error;

an appellant must affirmatively show error by an adequate

record. (Vo v. Las Virgenes Municipal Water Dist. (2000) 79

Cal.App.4th 440, 447.) In the absence of a proper record on

appeal, the trial court’s ruling is presumed correct and must

be affirmed. (See Maria P. v. Riles (1987) 43 Cal.3d 1281,

1295–1296.)

11

Phillip’s false arrest claim

Phillip contends the court erroneously granted

summary adjudication in favor of Officer Fizulich on his

false arrest claim. Phillip reasons he had offered evidence

that he did not exhibit signs of intoxication, and defendants’

evidence did not establish that he was unable to care for his

own safety or the safety of others.

A peace officer may make a warrantless arrest when

“[t]he officer has probable cause to believe that the person to

be arrested has committed a public offense in the officer’s

presence.” (§ 836, subd. (a)(1).) “The term ‘probable cause’

has an established meaning in connection with criminal

proceedings, and signifies a level of proof below that of proof

beyond a reasonable doubt, or even proof by a preponderance

of the evidence.” (People v. Hurtado (2002) 28 Cal.4th 1179,

1188–1189.) “‘Reasonable cause to arrest exists when the

facts known to the arresting officer would lead a reasonable

person to have a strong suspicion of the arrestee’s guilt.

[Citation.] This is an objective standard. [Citation.]’

[Citation.] ‘It is the right to arrest that is being tested. . . .

The question with which we are concerned is not “why did

the officer want to arrest this particular defendant?” but

rather “was there reasonable cause to arrest this particular

defendant?” The arresting officer’s secret intentions, hopes,

or purposes have nothing to do with the legality of the

arrest. The legality [of the arrest] which is based upon

reasonable cause is tested by objective standards . . . .’

12

[Citations.] ‘“‘[S]ufficient probability [that a crime has been

committed], not certainty, is the touchstone of

reasonableness under the Fourth Amendment.’”’ (People v.

Thompson [2006] 38 Cal.4th [811,] 820.)” (Levin v. United

Air Lines, Inc. (2008) 158 Cal.App.4th 1002, 1018.) “If the

facts that gave rise to the arrest are undisputed, the issue of

probable cause is a question of law for the trial court.”

(Ibid.)

Any person “[w]ho is found in any public place under

the influence of intoxicating liquor . . . , in a condition that

he or she is unable to exercise care for his or her own safety

or the safety of others” is guilty of disorderly conduct, a

misdemeanor. (§ 647, subd. (f).) An officer has probable

cause to place a person under arrest for violating section

647, subdivision (f), when the individual is intoxicated and in

a public place, and the totality of circumstances

demonstrates that he is unable to exercise care for his own

safety or the safety of others. (See, e.g., People v. Lively

(1992) 10 Cal.App.4th 1364, 1369–1372 [reviewing cases and

concluding that “[i]n an arrest for public intoxication, the

totality of the circumstances must be considered in

determining whether the intoxicated person can exercise

care for his or her own safety or the safety of others”]; People

v. Wolterman (1992) 11 Cal.App.4th Supp. 15, 20 [there was

probable cause to arrest an individual for public intoxication,

where the officers found him behind the wheel of a car

parked on the shoulder of the road, he smelled of alcohol,

had slow and garbled speech, his eyes were red and glassy,

13

and he was disoriented enough that after exiting the vehicle

he wandered into a traffic lane].)

In support of their motion for summary judgment,

defendants offered evidence that Phillip matched the

description of the participant in the bar fight who had left

the bar, and that Officer Fizulich detected an odor of alcohol

coming from Phillip, and observed Phillip to have bloodshot,

watery eyes and slurred speech. The only evidence Eric

offered to dispute these facts was Phillip’s booking

photograph, which purported to demonstrate the absence of

those objective signs of intoxication. This is insufficient to

place into dispute Officer Fizulich’s testimony about the

objective signs that led him to reasonably believe that Phillip

was intoxicated. Officer Fizulich also had a reasonable,

objective basis to believe that Phillip was unable to exercise

care for the safety of others based upon the initial fact that

he matched the description of a participant in a bar fight—a

fact that was later confirmed by the bartender. The

undisputed facts before the court were sufficient to support

the legal conclusion that Officer Fizulich had a reasonable

basis to believe that Phillip was intoxicated and unable to

care for the safety of others, in violation of section 647,

subdivision (f).

Eric’s excessive force claim

Eric contends the trial court erroneously concluded his

excessive force claims against Officer Ho were barred under

14

Heck, supra, 512 U.S. at pp. 486–487. Eric first argues that

Heck does not apply because a finding of excessive force

would not necessarily invalidate his conviction under section

148, subdivision (a)(1). He further argues that because his

conviction has been dismissed under section 1203.4, Heck

would not apply because the criminal case resulted in a

favorable termination.

We are not persuaded by either argument. The court

correctly granted summary adjudication against Eric’s

excessive force claim, and the later dismissal of Eric’s

conviction pursuant to section 1203.4 does not qualify as a

favorable termination that would lift the prohibition against

pursuing a civil claim against Officer Ho.

Claim for excessive force precluded under Heck

The idea that a plaintiff cannot use a civil tort claim as

a vehicle to challenge the validity of an outstanding criminal

conviction “applies to § 1983 damages actions that

necessarily require the plaintiff to prove the unlawfulness of

his conviction . . . .” (Heck, supra, 512 U.S. at p. 486.) “In

Yount v. City of Sacramento (2008) 43 Cal.4th 885 (Yount),

our Supreme Court held, consistent with Heck v. Humphrey,

supra, 512 U.S. 477 (Heck), that a plaintiff cannot maintain

a section 1983 civil rights claim for excessive force absent

proof that her conviction under Penal Code section 148,

subdivision (a), has been invalidated by appeal or other

proceeding.” (Lujano v. County of Santa Barbara (2010) 190

15

Cal.App.4th 801, 806, fn. omitted.) “Heck, supra, 512 U.S.

477, bars a section 1983 claim if it is inconsistent with a

prior criminal conviction or sentence arising out of the same

facts, unless the conviction or sentence has been

subsequently resolved in the plaintiff’s favor. (Id. at pp.

486–487.) In essence then, Heck requires the reviewing

court to answer three questions: (1) Was there an

underlying conviction or sentence relating to the section

1983 claim? (2) Would a ‘judgment in favor of the plaintiff [in

the section 1983 action] “necessarily imply” . . . the invalidity

of the prior conviction or sentence?’ (3) ‘If so, was the prior

conviction or sentence already invalidated or otherwise

favorably terminated?’ [footnote omitted].” (Fetters v.

County of Los Angeles (2016) 243 Cal.App.4th 825, 834–835

(Fetters), quoting Magana v. County of San Diego (S.D.Cal.

2011) 835 F.Supp.2d 906, 910.)

In Yount, our Supreme Court summarized Heck’s

analysis as follows: “Our discussion begins with Heck,

supra, 512 U.S. 477, which first established that a section

1983 claim calling into question the lawfulness of a

plaintiff’s conviction or confinement is not cognizable until

the conviction or confinement has been invalidated. (Heck,

supra, at p. 483.) Heck analogized a section 1983 claim in

such circumstances to the common law cause of action for

malicious prosecution, which similarly includes the

termination of the prior criminal proceeding in favor of the

accused as an element of the cause of action. ‘This

requirement “avoids parallel litigation over the issues of

16

probable cause and guilt . . . and it precludes the possibility

of the claimant [sic] succeeding in the tort action after

having been convicted in the underlying criminal

prosecution, in contravention of a strong judicial policy

against the creation of two conflicting resolutions arising out

of the same or identical transaction.” [Citation.]

Furthermore, “to permit a convicted criminal defendant to

proceed with a malicious prosecution claim would permit a

collateral attack on the conviction through the vehicle of a

civil suit.” [Citation.] This Court has long expressed similar

concerns for finality and consistency and has generally

declined to expand opportunities for collateral attack

[citations]. We think the hoary principle that civil tort

actions are not appropriate vehicles for challenging the

validity of outstanding criminal judgments applies to § 1983

damages actions that necessarily require the plaintiff to

prove the unlawfulness of his conviction or confinement, just

as it has always applied to actions for malicious prosecution.’

(Heck, supra, 512 U.S. at pp. 484–486, fns. omitted.)”

(Yount, 43 Cal.4th 885, 893–894.)

Eric argues that defendants did not carry their burden

on summary adjudication of demonstrating that his

excessive force claim, if successful, would necessarily imply

the invalidity of his conviction under section 148, subdivision

(a)(1), for resisting, delaying, or obstructing a peace officer.

7

We disagree.



7 Section 148, subdivision (a)(1) provides: “Every

person who willfully resists, delays, or obstructs any . . .

17

The Heck court specifically included within its holding

claims for damages “caused by actions whose unlawfulness

would render a conviction or sentence invalid,” and gave the

following example: “A state defendant is convicted of and

sentenced for the crime of resisting arrest, defined as

intentionally preventing a peace officer from effecting a

lawful arrest. (This is a common definition of that offense.

See People v. Peacock, 68 N.Y.2d 675 (1986); 4 C. Torcia,

Wharton’s Criminal Law § 593, p. 307 (14th ed. 1981).) He

then brings a § 1983 action against the arresting officer,

seeking damages for violation of his Fourth Amendment

right to be free from unreasonable seizures. In order to

prevail in this § 1983 action, he would have to negate an

element of the offense of which he has been convicted.

Regardless of the state law concerning res judicata, . . . the

§ 1983 action will not lie.” (Heck, supra, 512 U.S. at p. 486,

fn. 6, second italics added.) In California as well, “the

lawfulness of the officer’s conduct is an essential element of

the offense of resisting, delaying, or obstructing a peace

officer.” (Smith v. City of Hemet (9th Cir. 2005) 394 F.3d

689, 695 (Smith); see also People v. Jenkins (2000) 22 Cal.4th

900, 1020 (Jenkins) [discussing “the well-established rule

that when a statute makes it a crime to commit any act

against a peace officer engaged in the performance of his or

her duties, part of the corpus delicti of the offense is that the



peace officer, . . . in the discharge or attempt to discharge

any duty of his or her office or employment, . . . shall be

[guilty of a misdemeanor].”

18

officer was acting lawfully at the time the offense was

committed”].) “Disputed facts relating to the question

whether the officer was acting lawfully are for the jury to

determine when such an offense is charged.” (Jenkins,

supra, at p. 1020.)

Eric argues the facts surrounding his claim are more

analogous to those in Smith, where the Ninth Circuit

permitted the plaintiff to proceed with a claim of excessive

force despite pleading guilty to violating section 148.

(Smith, supra, 394 F.3d at p. 699.) In Smith, the plaintiff’s

interaction with police had two distinct phases—an

investigative phase and an arrest phase. During the

investigative phase, when police responded to a call for

assistance, plaintiff emerged onto his porch and refused to

comply with officer commands to remove his hands from his

pockets and put them in view of the officers to show he had

no weapons. After police brought in a canine unit, the

interaction moved into an arrest phase, when the canine

unit and other officers went onto the porch to subdue and

arrest plaintiff. On the porch, plaintiff continued resisting

arrest, police pepper sprayed him, and a police dog bit him

several times. (Id. at pp. 693–694.) The plaintiff pleaded

guilty to violating section 148, subdivision (a)(1), but the

record was silent as to the basis for his plea, and so it was

possible that this conviction was based only on his actions

during the investigative phase. The Ninth Circuit reasoned

that if plaintiff had “pled guilty to § 148(a)(1) based on his

behavior after the officers came onto the porch, during the

19

course of the arrest, his suit would be barred by Heck.

[Citation.]” (Id. at p. 697.) In contrast, his claim would not

be barred under Heck “if the use of excessive force occurred

subsequent to the conduct on which his conviction was based.

Specifically, [plaintiff] would be entitled to proceed below if

his conviction were based on unlawful behavior that took

place while he stood alone and untouched on his porch . . . .”

(Id. at p. 698.) Relying on an earlier case, Sanford v. Motts

(9th Cir. 2001) 258 F.3d 1117, 1119–1120 (Sanford), the

Smith court noted that permitting the plaintiff’s excessive

force claim would not necessarily imply the invalidity of his

section 148 conviction, because the purported excessive force

could have taken place during the arrest phase, and not the

investigative phase. (Smith, supra, 394 F.3d at p. 699.)

In Sanford, the Ninth Circuit concluded a plaintiff was

not barred from bringing an excessive force claim against an

officer who punched her in the face after she had already

been handcuffed, because a judgment would not necessarily

imply the invalidity of her conviction under section 148.

(Sanford, supra, 258 F.3d at p. 1120 [“Excessive force used

after an arrest is made does not destroy the lawfulness of the

arrest”].) The Smith court reasoned that “under Sanford, as

long as the officers were acting lawfully at the time the

violation of § 148(a)(1) took place, their alleged acts of

excessive force, whether they occurred before or after

[plaintiff] committed the acts to which he pled, would not

invalidate his conviction.” (Smith, supra, 394 F.3d at p.

699.)

20

According to Eric, his section 148, subdivision (a)(1)

conviction rested solely on a failure to obey the officers’

verbal commands,8 and was therefore based on conduct that

occurred before the purported excessive use of force,

specifically Officer Ho firing his taser at Eric and later

pushing him against the squad car and twisting his wrists.

Eric’s reliance on Smith is unpersuasive because unlike the

factual scenarios in Smith and Sanford, there is no

separation between Eric’s actions and Officer Ho’s

deployment of the taser on Eric. While Officer Fizulich was

detaining Phillip, Eric approached the group on foot. As he

approached, he said “That’s my brother. What’s going on

here.” While Eric disputes whether he posed any danger to

anyone, he does not dispute that Officer Ho then fired his

taser at Eric. To consider Eric’s actions in approaching the

officers as somehow distinct from Officer Ho’s response in

firing the taser is to view the incident too narrowly.

Instead, the factual scenario before us is more

analogous to the incidents involved in Fetters, 243

Cal.App.4th 825, and Truong v. Orange County Sheriff’s

Dept. (2005) 129 Cal.App.4th 1423 (Truong). In both cases,

appellate courts found that the plaintiffs’ civil claims were

barred under Heck based on their criminal convictions and

the conclusion that a successful civil claim would necessarily



8 He argues that because the criminal jury acquitted

him of battery (§ 243, subd. (b)), it implicitly rejected the

prosecution’s argument that Eric struck Officer Tumbocon’s

flashlight while approaching the officers.

21

imply the invalidity of the conviction. In Truong, the

plaintiff had been arrested and booked for shoplifting.

During booking, she resisted an order to disrobe and shower

with the other inmates. Truong claimed that when

additional officers arrived she attempted to comply by

beginning to remove her sweater, but was assaulted by four

officers who fractured her arm and placed her in a holding

cell without medical care. Truong was convicted of three

counts of shoplifting. In a separate case, Truong was

charged with assaulting a custodial officer and battery, and

she entered into a plea agreement in which she plead guilty

to one count of violating section 148, subdivision (a)(1).

(Truong, supra, at pp. 1425–1426.) Truong then filed a civil

lawsuit with causes of action based on the officers’ excessive

use of force. The court rejected Truong’s argument that her

civil claim need not be barred under Heck because her

failure to obey a lawful order ended when she began

removing her sweater, and therefore took place before the

officers began using excessive force against her. It

explained, “A chain of events began when Truong refused

the lawful order that did not end until she was disrobed.

This was not a case where the acts alleged to be violations of

the plaintiff’s civil rights occurred hours, or even minutes,

after the act which led to the plaintiff’s conviction; the acts

occurred mere moments later. Asserting that the crime was

somehow over because the plaintiff changed her mind and

started to remove her sweater is temporal hair-splitting, and

would place deputies in untenable situations, where they are

22

required to guess the mindset of the arrestee. We agree with

the trial court that Truong’s refusal to obey the lawful order

and the events that led to her injuries are part of an

unbreakable chain of events. Therefore, the limit set forth in

Heck applies here, and Truong’s civil rights claim cannot be

maintained.” (Id. at p. 1429.)

Similarly, in Fetters, the court discussed at length the

relevance of a temporal connection between the act leading

to a criminal conviction and the act that supports a claim of

excessive force. (Fetters, supra, 243 Cal.App.4th at pp. 838–

840.) The court rejected Fetters’s attempt to parse the

incident into two separate interactions, concluding “there

was no meaningful temporal break between the provocative

act that Fetters admitted to in his criminal proceeding . . .

and the use of force by [the officer] that Fetters claims was

excessive and unreasonable.” (Id. at pp. 840–841.)

Before granting summary adjudication in favor of

defendants on Eric’s excessive force claim, the trial court

took judicial notice of relevant facts from the criminal trial

and the later appeal. In presenting his defense at the

criminal proceeding, Eric contended that Officer Ho used

excessive force by firing his taser on Eric. The jury was

instructed to find Eric not guilty if Officer Ho used

unreasonable or unlawful force, but it still convicted Eric of

violating section 148, subdivision (a)(1). On appeal, the

appellate division rejected Eric’s argument that “Officer Ho

was not engaged in the lawful performance of his duties as a

peace officer when he deployed the taser gun.”

23

Eric’s civil claim for excessive force is barred under

Heck because the criminal jury necessarily found Officer

Ho’s conduct to be lawful and not an unreasonable use of

force. A finding of civil liability would invalidate the jury’s

determination that Officer Ho acted lawfully in detaining

and arresting Eric, a result barred by Heck. (Heck, supra,

512 U.S. at p. 486–487.) During Eric’s criminal jury trial,

the question whether Officer Ho lawfully deployed the taser

was intertwined with the jury’s decision to convict Eric of

violating section 148, subdivision (a)(1). Eric’s conviction

inherently includes a finding that Officer Ho’s actions were

lawful.

Eric also belatedly argues that his treatment near the

squad car provides a separate basis for his excessive force

claim against Officer Ho. However, the first amended

complaint does not allege Officer Ho used excessive force

when he directed Eric to the squad car and handcuffed him.

We therefore limit our analysis to whether the Heck bar

applies to Eric’s claim that Officer Ho’s use of the taser

constituted excessive force. We conclude that because

Officer Ho fired his taser when Eric was ignoring commands

to stay back, the actions were part of a continuous

interaction and the Heck bar applies.

Dismissal under section 1203.4 does not invalidate Eric’s

conviction

Eric also argues the Heck bar no longer applies because

his section 148, subdivision (a)(1) conviction was dismissed

24

under section 1203.4. As we explain below, we conclude a

dismissal under section 1203.4 does not invalidate a

conviction for purposes of removing the Heck bar preventing

a plaintiff from bringing a civil action.

A court deciding whether a civil action is precluded

“must consider whether a judgment in favor of the plaintiff

would necessarily imply the invalidity of his conviction or

sentence; if it would, the complaint must be dismissed unless

the plaintiff can demonstrate that the conviction or sentence

has already been invalidated.” (Heck, supra, 512 U.S. at p.

487, italics added.) To demonstrate that the conviction or

sentence has been invalidated or favorably terminated, the

“plaintiff must prove that the conviction or sentence has

been reversed on direct appeal, expunged by executive order,

declared invalid by a state tribunal authorized to make such

determination, or called into question by a federal court’s

issuance of a writ of habeas corpus [citation].” (Id. at p. 486–

487.) The central issue is whether a dismissal under section

1203.4 satisfies that requirement under Heck. If the

conviction or sentence has not been so invalidated, plaintiff’s

suit is barred. (Id. at p. 487.)

“California courts have consistently held that favorable

termination in the context of a malicious prosecution action

requires a plaintiff to show more than a mere dismissal of

the underlying action; he or she must show facts

establishing his or her innocence.” (Fetters, supra, 243

Cal.App.4th at p. 844.) A dismissal under section 1203.4,

while sometimes inaccurately described as an

25

“expungement,” is in no way equivalent to a finding of

factual innocence. Section 1203.4 simply authorizes a court

to grant relief to individuals who successfully complete the

terms of probation by mitigating some of the consequences of

conviction. (People v. Parker (2013) 217 Cal.App.4th 498,

501.) “Section 1203.4 does not, properly speaking, ‘expunge’

the prior conviction. The statute does not purport to render

the conviction a legal nullity. Instead it provides that,

except as elsewhere stated, the defendant is ‘released from

all penalties and disabilities resulting from the offense.’ The

limitations on this relief are numerous and substantial,

including other statutes declaring that an order under

section 1203.4 is ineffectual to avoid specified consequences

of a prior conviction. [Citations.] Furthermore, by the

statute’s own terms, an order under section 1203.4 ‘does not

relieve’ the ex-offender of ‘the obligation to disclose the

conviction in response to any direct question contained in

any questionnaire or application for public office [or] for

licensure by any state or local agency . . . .’ (§ 1203.4, subd.

(a).) [¶] Indeed, section 1203.4 contains a sweeping

limitation on the relief it offers, stating that ‘in any

subsequent prosecution of the defendant for any other

offense, the prior conviction may be pleaded and proved and

shall have the same effect as if probation had not been

granted or the accusation or information dismissed.’ This

provision alone precludes any notion that the term

‘expungement’ accurately describes the relief allowed by the

26

statute.” (People v. Frawley (2000) 82 Cal.App.4th 784, 791–

792.)

Even if a section 1203.4 dismissal could properly be

characterized as an expungement, it is not an “executive

expungement” or reversal on the merits contemplated in

Heck. Federal case law runs contrary to Eric’s argument as

well. (See, e.g., Dickerson v. New Banner Institute, Inc.

(1983) 460 U.S. 103, 115, superseded by statute on other

grounds [“expunction does not alter the legality of the

previous conviction and . . . under state law means no more

than that the State has provided a means for the trial court

not to accord a conviction certain continuing effects under

state law”]; U.S. v. Crowell (9th Cir. 2004) 374 F.3d 790, 792

[“[a]lthough ‘expungement’ may mean different things in

different states, in general when a defendant moves to

expunge records, she asks that the court destroy or seal the

records of the fact of the defendant’s conviction and not the

conviction itself”]; Gilles v. Davis (3d Cir. 2005) 427 F.3d 197

[expungement under a pretrial diversion program is not a

favorable termination that would remove Heck bar to a

section 1983 malicious prosecution claim].)

Eric cites no case law supporting his argument that a

dismissal under section 1203.4 invalidates his conviction or

qualifies as a favorable termination similar to an executive

pardon or a reversal on appeal. Instead, we conclude that

even after the court presiding over Eric’s criminal case

granted his petition under section 1203.4, there remained a

“conviction or sentence” (as that term has been interpreted

27

by both California and federal courts) that would necessarily

be invalidated if Eric were to prevail on his civil claim.

Eric’s excessive force claim remains barred under Heck.

Eric’s malicious prosecution claim

Eric contends the trial court erroneously denied his

motion for leave to amend his complaint to add a claim for

malicious prosecution. Eric criticizes the lower court’s ruling

as ignoring language in the parties’ stipulation reserving his

right to reinstate his malicious prosecution claim if his

conviction was reversed on appeal and preserving his right

to challenge the federal court’s dismissal of that claim. The

record on appeal establishes that the court conducted a

hearing on the plaintiffs’ motion for leave to file a second

amended complaint on July 2, 2013, with counsel appearing

for plaintiffs and defendants. Eric did not provide a

reporters’ transcript or suitable substitute of what

transpired at the July 2, 2013 hearing.

It is the burden of the appellant to produce an

adequate record demonstrating trial court error. (Ballard v.

Uribe (1986) 41 Cal.3d 564, 574–575; Baker v. Children’s

Hospital Medical Center (1989) 209 Cal.App.3d 1057, 1060.)

Without a record of the oral proceedings, we cannot review

whether the trial court abused its discretion in denying

Eric’s motion for leave to file an amended complaint. The

numerous situations in which appellate courts have refused

to reach the merits of an appellant’s claims because no

28

reporter’s transcript or a suitable substitute of a pertinent

proceeding was provided are set forth in Foust v. San Jose

Construction Co., Inc. (2011) 198 Cal.App.4th 181, 186–187.

Responding to an invitation from this court to submit

letter briefs on the absence of an adequate record, Eric

directed this court’s attention to the notice of ruling

contained in appellant’s appendix. Eric’s letter brief states

that appellants and respondents stipulate that the notice of

ruling “accurately reflects what the court said at the July

2013 hearing and the reasoning behind its ruling on the

issue.” He proposes that the notice of ruling be used as an

agreed statement under the California Rules of Court, rules

8.120(b)(2) and 8.130(h)(2). Eric’s proposal falls short

because it does not comply with the rules governing agreed

statements set forth in rule 8.134 of the California Rules of

Court.

Arguments, concessions, and offers of proof made

during the hearing are relevant to a determination of

whether the trial court abused its discretion by denying

leave to amend. Without a reporter’s transcript or a suitable

substitute, we have no information about what arguments

were raised at the hearing that might have affected the

court’s exercise of discretion, including the possibility Eric’s

counsel may have conceded that Eric failed to obtain a

reversal of his conviction on appeal or that the parties’

stipulation did not permit Eric to refile his malicious

prosecution claim absent such a reversal. Because the

29

record is inadequate for appellate review, we presume the

court ruled correctly and affirm.

The judgment is affirmed. Costs on appeal are awarded to defendants and respondents Mario Fizulich, Phillip Ho, and Ellen Tumbocon.