Hernandez

We granted review in this case to consider the following question: When a federal court enters judgment in favor of the defendants on a civil rights claim brought under 42 United States Code section 1983 (section 1983), in which the plaintiffs seek damages for police use of deadly and constitutionally excessive force in pursuing a suspect, and the court then dismisses a supplemental state law wrongful death claim arising out of the same incident, what, if any, preclusive effect does the judgment have in a subsequent state court wrongful death action? Based on principles of issue preclusion (collateral estoppel), the Court of Appeal held in this case that the federal judgment precludes plaintiffs from recovering on the theory that the police officers failed to exercise reasonable care in using deadly force, but does not preclude plaintiffs from recovering on the theory that the officers failed to exercise reasonable care in creating, through their preshooting *506 conduct, a situation in which it was reasonable for them to use deadly force. The Court of Appeal therefore reversed the judgment that the trial court entered for the officers and their employer based on the…

I agree with the majority that the Court of Appeal was correct that the federal judgment precluded plaintiffs from relitigating in the present state action whether defendants were negligent in their use of deadly force. Accordingly, I concur in part 1. of the majority opinion. (Maj. opn., ante, at pp. 512-517.)

I disagree with the Court of Appeal’s conclusion that this does not resolve the case because plaintiffs are entitled to amend their complaint to allege preshooting negligence. “ ‘Where the complaint is defective, “[i]n the furtherance of justice great liberality should be exercised in permitting a plaintiff to amend his complaint, and it ordinarily constitutes an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable possibility that the defect can be cured by amendment. [Citations.]” ’ [Citations.] This abuse of discretion is reviewable on appeal ‘even in the absence of a request for leave to amend’ [citation], and even if the plaintiff does not claim on appeal that the trial court abused its discretion in sustaining a demurrer without leave to amend. [Citation.]” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 970-971 [9…

I concur, but write separately to express misgivings about the path the litigation has taken in this case. I agree that plaintiffs’ state claims here are foreclosed by a combination of issue preclusion and the application of law to conceded facts. However, I do not believe *524 that defendants and state courts should be required to relitigate the facts and parse the federal record for precluded issues in every case where a federal court retains supplemental jurisdiction of state claims, then dismisses them after trying a claim under 42 United States Code section 1983 (section 1983). In such cases, litigation in state court should be barred by principles of claim preclusion, for reasons well stated by Justice Kaufman in Mattson v. City of Costa Mesa (1980) 106 Cal.App.3d 441 [ 164 Cal.Rptr. 913 ] (Mattson), another case involving claims under both state tort law and section 1983:

Mattson is not precisely on point, because there the federal court had refused to exercise pendent jurisdiction over the plaintiff’s state claim, whereas here the court retained jurisdiction and dismissed the state claims only after plaintiffs were unsuccessful at trial. 1 2 However, once the federal…

We granted review in this case to consider the following question: When a federal court enters judgment in favor of the defendants on a civil rights claim brought under 42 United States Code section 1983 (section 1983), in which the plaintiffs seek damages for police use of deadly and constitutionally excessive force in pursuing a suspect, and the court then dismisses a supplemental state law wrongful death claim arising out of the same incident, what, if any, preclusive effect does the judgment have in a subsequent state court wrongful death action? Based on principles of issue preclusion (collateral estoppel), the Court of Appeal held in this case that the federal judgment precludes plaintiffs from recovering on the theory that the police officers failed to exercise reasonable care in using deadly force, but does not preclude plaintiffs from recovering on the theory that the officers failed to exercise reasonable care in creating, through their preshooting conduct, a situation in which it was reasonable for them to use deadly force. The Court of Appeal therefore reversed the judgment that the trial court entered for the officers and their employer based on the federal…