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Date: 04-20-2017

Case Style: Phillip Baranchik v. Mario Fizulich

Case Number: B268133

Judge: J. Kriegler

Court: California Court of Appeals Second Appellate District Division Five on appeal from the Superior Court, Los Angeles County

Plaintiff's Attorney: Thomas E. Beck

Defendant's Attorney: Mildred K. O’Linn, Tony M. Sain and Mae G. Alberto

Description: 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
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
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.
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
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
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.
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)
(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
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
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
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
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.
Standard of review
Summary adjudication of false arrest and excessive force
“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.
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
“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,
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 . . . .’
[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.”
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,
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
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
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
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.
We disagree.

7 Section 148, subdivision (a)(1) provides: “Every
person who willfully resists, delays, or obstructs any . . .
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].”
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
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.
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.
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
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.”
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
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
Eric also argues the Heck bar no longer applies because
his section 148, subdivision (a)(1) conviction was dismissed
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
“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
statute.” (People v. Frawley (2000) 82 Cal.App.4th 784, 791–
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
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
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
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
record is inadequate for appellate review, we presume the
court ruled correctly and affirm.

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

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