Wednesday, May 13, 2015
C.A. Upholds Ruling in Suit by Customer Claiming False Arrest
Collateral Estoppel Bars Action Because Probable Cause Was Found at Preliminary Hearing—Panel
By KENNETH OFGANG, Staff Writer
A finding of probable cause at a preliminary hearing bars the defendant from subsequently claiming that he was prosecuted without probable cause, despite his claim the finding was based on false testimony, the Court of Appeal for this district ruled yesterday.
Div. Five granted summary judgment in favor of Bank of America in a suit by Gary Greene, who claimed that the manager of a branch in the San Fernando Valley lied to police, and in court, falsely accusing him of threatening to blow up the bank.
Greene filed suit after a Los Angeles Superior Court jury acquitted him of making criminal threats. The bank’s anti-SLAPP motion was granted in the trial court, but the Court of Appeal reversed, holding that Greene made a sufficient showing that he was likely to prevail on the probable cause element of his claim.
On remand, however, the bank moved for summary judgment, arguing for the first time that the magistrate’s finding of probable cause at the preliminary hearing had collateral estoppel effect, barring Green’s claim. Los Angeles Superior Court Judge Frank Johnson agreed and granted the motion.
Justice Richard Mosk, writing for the Court of Appeal, said the trial judge was correct.
Mosk cited a summary of the preliminary hearing and trial testimony in the criminal case, from the court’s opinion in Greene v. Bank of America (2013) 216 Cal.App.4th 454.
The bank manager, Jenny Casasola, said Greene was attempting to cash two checks, one for $40 and one for several thousand dollars. The checks were drawn on a State Farm insurance company account.
The bank frequently cashed checks issued by State Farm, which had an office nearby, to pay claims, and maintained a list of the insurer’s authorized signers. In Greene’s case, Casasola said, there was a delay because the larger check did not appear to have been signed by an authorized person, and Greene became loud and abusive when Casasola’s subordinate said she could not cash the check until she could verify its validity.
The bank manager testified that after plaintiff approached her with the checks, she saw that her subordinate was “visibly upset” and “on the verge of tears.” Standing 10 feet away, she said, she told Greene to calm down and lower his voice, but instead he shouted threats, saying he was an ex-convict, was not afraid of the police, was “going to blow s—— up,” and that he was not afraid to blow the bank up or break the doors.
Greene, she said, was balling his fists, throwing his arms in the air, and taking “an aggressive physical stance,” before Casasola called police, who arrested Greene as he stood outside the bank, smoking.
Greene disputed nearly all of that testimony. While he admitted raising his voice, he said he never threatened to blow anything up, or to take any action against the bank employees other than to complain about the poor service he was receiving. He did not call anyone any names, he said, and became angry only when the bank employees expressed disinterest in calling the adjuster at State Farm or otherwise helping him get his money.
Instead, he testified, they tried to get him to open an account and deposit the check, which he was unwilling to do.
Law of the Case
Mosk rejected the plaintiff’s contention that under the law-of-the-case doctrine, Greene had established that there was sufficient evidence to take to a jury his claim that Bank of America lacked probable cause to have him prosecuted. The doctrine only applies to issues that an appeals court has decided, the justice said, and the effect of the magistrate’s ruling was not such an issue.
Under longstanding California case law, Mosk went on to say, a preliminary hearing magistrate’s ruling that prosecutors presented sufficient evidence to bind a defendant over for trial is preclusive on the issue of probable cause on a subsequent malicious prosecution claim.
There is an exception, the justice acknowledged, where the magistrate’s ruling is procured by false testimony. But the exception does not apply where the magistrate directly determined that the allegedly false witness was credible and the defendant wasn’t, Mosk said.
“Accordingly, the magistrate’s probable cause determination, based on its credibility finding that Casasola testified truthfully about plaintiff’s threat, was sufficient to invoke collateral estoppel,” Mosk wrote.
Attorneys on appeal were Emmanuel C. Akudinobi and Chijioke O. Ikonte for the plaintiff, and Jan T. Chilton and Andrew S. Elliott of Severson & Werson for the bank.
The case is Greene v. Bank of America, 15 S.O.S. 2349
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