CIVIL MINUTES - GENERAL Case No. 2:13-cv-08298-SVW-AGRx Date April 29, 2014 Title Brian C. Mulligan v. Eric Rose Present: The Honorable STEPHEN V. WILSON, U.S. DISTRICT J UDGE Paul M. Cruz N/A Deputy Clerk Court Reporter / Recorder Attorneys Present for Plaintiffs: Attorneys Present for Defendants: N/A N/A Proceedings: IN CHAMBERS ORDER Re: Defendants Motion to Dismiss [13] I. INTRODUCTION Approximately one year ago, plaintiff Brian Mulligan sued the Los Angeles Police Protective League (LAPPL) and its president, Tyler Izen, alleging that those parties published a negative press release and audio recording about Mulligan in retaliation against his First Amendment rights. (Case No. 13-cv-00836-RGK (Mulligan I)). On December 18, 2013, the Honorable R. Gary Klausner granted summary judgment for the LAPPL and Izen on the ground that the publication did not violate Mulligans constitutional rights. J udge Klausner entered final judgment on J anuary 30, 2014. In the instant case (Mulligan II), Mulligan brings a similar First Amendment retaliation claim against defendant Eric Rose, who was a public relations consultant for the LAPPL and assisted in publishing the same press release and audio recording that were at issue in Mulligan I. On J anuary 8, 2014, defendant Rose filed a motion to dismiss Mulligans complaint in Mulligan II. (Dkt. 13). At a hearing on the matter on February 10, 2014, the Court ordered supplemental briefing on the issue of preclusion. The parties have submitted their supplemental briefs, (Dkts. 21-23), and after review the Court GRANTS defendants motion. II. BACKGROUND A. Factual Background
On the night of May 15, 2012, Brian Mulligan was detained and alleges that he was severely beaten by LAPD officers J ohn Miller and J ames Nichols. (Compl., 27). After the incident, Mulligan : Initials of Preparer PMC CV-90 (10/08) CIVIL MINUTES - GENERAL Page 1 of 5 Case 2:13-cv-08298-SVW-AGR Document 26 Filed 04/29/14 Page 1 of 5 Page ID #:560 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2:13-cv-08298-SVW-AGRx Date April 29, 2014 Title Brian C. Mulligan v. Eric Rose hired a lawyer and filed a claim against the City of Los Angeles and the LAPD related to his altercation with the officers. (Id. 45). Mulligan asserts that after he filed his claim, Eric Rose, a partner at a public relations firm that contracts with the LAPDs union, the LAPPL, began strategizing with the president of the LAPPL, Tyler Izen, on how they could tarnish Mulligans image in an attempt to force Mulligan to drop his claim. (Id. 45, Ex. A). Rose discovered from a source that two days before Mulligans altercation with the LAPD officers, he had gone to the Glendale Police Department on his own initiative and asked about a product he had tried called White Lightning. (Id. 46, 48). White Lightening is a stimulant, also known by a street name as bath salts. (Id. 48-49). Mulligans conversation with the officers at the Glendale police station was recorded. And after Rose heard about the tape of the recording, he began drafting a press release, claiming that Mulligan was addicted to bath salts and that Mulligan had been under the influence of bath salts during his altercation with the LAPD officers. (Id. 50-53; Ex. F). Rose and Izen eventually acquired a copy of the Glendale tape from Los Angeles Deputy City Attorney Cory Brente, who had obtained the tape from the LAPD. (Id. 66). On October 15, 2012, the LAPPL issued Roses press release with an embedded link to the Glendale tape. (Id. 79). The release was circulated to maximize national media coverage, and prominently mentioned Mulligans employer, Deutsche Bank. (Id.). The release asserted that Mulligan suffered from delusions as a result of his drug use, that he had concocted the entire incident with the LAPD offices in an effort to shake down the City, and that Mulligan was a drug addict who should be in rehab. (Id. 79). Deutsche Bank terminated Mulligans employment because of publicity from the October 15, 2012 press release and the Glendale tape. (Id. 82). B. Mulligan I Background On February 6, 2013, Mulligan filed suit against the City of Los Angeles, the LAPD officers involved in the May 15, 2012 incident, the LAPD, the LAPPL, and Izen. (Mulligan I: Dkt. 1). Among other claims, Mulligan alleged that the LAPPL and Izen violated his First Amendment rights by allegedly publishing the press release and the Glendale audio tape in retaliation against Mulligans decision to file a claim against the City of Los Angeles and the LAPD. (Id. 19-28). In the course of discovery for Mulligan I, Mulligan learned that Rose was also involved with the publication of the press release and audiotape. (Mulligan II: Dkt. 22-1, Mason Decl., 5). In an effort to obtain emails sent by Rose to Izen related to the press release and audio tape, Mulligan filed a motion : Initials of Preparer PMC CV-90 (10/08) CIVIL MINUTES - GENERAL Page 2 of 5 Case 2:13-cv-08298-SVW-AGR Document 26 Filed 04/29/14 Page 2 of 5 Page ID #:561 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2:13-cv-08298-SVW-AGRx Date April 29, 2014 Title Brian C. Mulligan v. Eric Rose to compel in Mulligan I that was granted on September 23, 2013. (Mulligan I: Dkt. 156). Soon thereafter, Mulligan also took Roses deposition. (Mulligan II: Mason Decl., 5). On November 5, 2013, the LAPPL and Izen moved for summary judgment in Mulligan I. (Mulligan I: Dkt. 250). In opposition to that motion, Mulligan presented evidence to the Court that Mulligan asserted showed that Izen and the LAPPL acted with retaliatory intent in publishing the press release and audio tape. Some of Mulligans evidence included emails and statements made by Izen on behalf of the LAPPL. Mulligan also asserted that Rose was an agent of the LAPPL, and thus also submitted emails sent by Rose to Izen related to the press release and audio tape. (Mulligan I: Dkt. 274 (Mulligans Statement of Genuine Dispute and Additional Material Facts) 59-60, 81). These emails included one in which Rose asked Izen if there was a way to discredit Mulligan, (Id. 55), an email where Rose told Izen about the Glendale audio recording, (Id. 59-60), and an email in which Rose told Izen that Mulligans attorney would fold when he learns what we have, referring to the audio tape. (Id. 81). On December 18, 2013, the Honorable R. Gary Klausner granted summary judgment for the LAPPL and Izen. (Mulligan I, Dkt. 352). J udge Klausner held that Mulligan had failed to provide evidence suggesting that the LAPPL and Izen published the press release and audio recording with the intent to chill Mulligans First Amendment rights. (Id. at 3-5). In so holding, J udge Klausner stated that Mulligans strongest and most relevant evidence included Roses email to Izen stating that Mulligans attorney will fold when he learns what we have. (Id. at 4). However, J udge Klausner held that even this evidence merely show[ed] an internal discussion involving the perceived weakness of [Mulligans] case, which amounted to ordinary conduct related to the normal process of litigation rather than evidence of retaliatory intent. (Id. 4-5). J udge Klausner entered final judgment on J anuary 30, 2014. (Mulligan I, Dkt. 440). C. Mulligan II Background On November 7, 2013, Mulligan filed the instant case against Rose, asserting that Rose participated in writing and publishing the press release at issue, and obtaining the Glendale audio tape, in retaliation against Mulligans decision to file a claim against the City of Los Angeles and the LAPD. As exhibits to Mulligans complaint, he has attached a number of the same emails from Rose to Izen that were considered in Mulligan I. (Mulligan II, Dkt. 1, Compl., Exs. A-E). Rose asserts, however, that the instant case is precluded under the doctrine of collateral estoppel. III. LEGAL STANDARD Federal Rule of Civil Procedure 12(b)(6) allows a claim to be dismissed for failure to state a : Initials of Preparer PMC CV-90 (10/08) CIVIL MINUTES - GENERAL Page 3 of 5 Case 2:13-cv-08298-SVW-AGR Document 26 Filed 04/29/14 Page 3 of 5 Page ID #:562 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2:13-cv-08298-SVW-AGRx Date April 29, 2014 Title Brian C. Mulligan v. Eric Rose claim upon which relief can be granted. In reviewing a motion to dismiss for failure to state a claim, courts will consider the legal sufficiency of the claim. In order to survive the motion, a plaintiffs complaint must allege facts to make it plausible, not merely conceivable, that the plaintiff is entitled to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007). Mere conclusory statements are not enough, and a plaintiff must provide sufficient facts to allow the court to infer a defendants culpability from the facts plead in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). IV. DISCUSSION A. Collateral Estoppel (Issue Preclusion) [T]he doctrine of collateral estoppel can apply to preclude relitigation of both issues of law and issues of fact if those issues were conclusively determined in a prior action. Wolfson v. Brammer, 616 F.3d 1045, 1064 (9th Cir. 2010). Under this doctrine, a party is precluded from relitigating an issue if four requirements are met: (1) there was a full and fair opportunity to litigate the issue in the previous action; (2) the issue was actually litigated; (3) there was final judgment on the merits; and (4) the person against whom collateral estoppel is asserted was a party to or in privity with a party in the previous action. Id. Mulligan does not challenge the third and fourth elements. There was a final judgment on the merits in Mulligan I, and Rose is asserting collateral estoppel against Mulligan, who was a party in the previous action. Mulligan does, however, dispute the first and second elements. For the reasons below, the Court finds that Rose has satisfied all four elements and holds that Mulligans claims in the instant case are barred by collateral estoppel. 1. Full and Fair Opportunity to Litigate the Issue and Actual Litigation of the Issue Mulligan asserts that the doctrine of collateral estoppel does not apply because the issue litigated in Mulligan I is distinct from the issue that would be litigated in Mulligan II. Specifically, Mulligan asserts that the issue litigated and decided in Mulligan I was whether the defendants in that case, Izen and the LAPPL, acted with retaliatory intent when they published the press release and audio tape at issue. In contrast, Mulligan asserts that the issue in Mulligan II is whether Rose created and/or published the press release with retaliatory intent. Because Rose was not a defendant in Mulligan I, Rose avers that J udge Klausner did not specifically consider whether Rose acted with retaliatory intent.
Although Rose was not a defendant in Mulligan I, a review of the record in that case shows that Roses retaliatory intent was in fact litigated. Mulligan argues that Roses mental state neither was, nor could have been, at issue in Mulligan I because Mulligan [c]ould not have proved his case against the : Initials of Preparer PMC CV-90 (10/08) CIVIL MINUTES - GENERAL Page 4 of 5 Case 2:13-cv-08298-SVW-AGR Document 26 Filed 04/29/14 Page 4 of 5 Page ID #:563 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2:13-cv-08298-SVW-AGRx Date April 29, 2014 Title Brian C. Mulligan v. Eric Rose Mulligan I defendants by putting on evidence of Roses mental state. (Id. at 5:13-16). However, Mulligan did just that in Mulligan I. In Mulligans opposition to Izen and the LAPPLs motion for summary judgment, Mulligan asserted that Rose was an agent of the LAPPL and Izen. (Mulligan I: Dkt. 274, P26). Because of this agency relationship, Mulligan presented the court with specific evidence of Roses retaliatory intent in order to prove his case against Izen and the LAPPL.
Not only was evidence of Roses retaliatory intent offered in Mulligan I, but this evidence was considered by J udge Klausner. J udge Klausner characterized Roses email to Izen stating that Mulligans attorney will fold when he learns what we have as Mulligans strongest and most relevant evidence of retaliatory intent. Nevertheless, J udge Klausner held that it showed nothing more than ordinary conduct related to the normal process of litigation. (MSJ Order in Mulligan I (Doc. No. 352) at 5). In sum, the record in Mulligan I shows that Mulligan conducted extensive discovery related to the issue of Roses intent, and litigated the issue in opposition to the defendants motion for summary judgment. And because Rose acted as an agent for the LAPPL, J udge Klausners determination that Mulligans evidence was insufficient to establish that Izen and the LAPPL acted with retaliatory intent by implication established that Rose also did not act with retaliatory intent. This forecloses the re- litigation of Roses retaliatory intent in the instant case. V. CONCLUSION For the reasons stated above, collateral estoppel bards plaintiff Mulligans suit against defendant Rose. Because Plaintiff has failed to state a claim upon which relief can be granted, Defendant's motion to dismiss Plaintiffs complaint is hereby GRANTED. The complaint is DISMISSED, with prejudice. : Initials of Preparer PMC CV-90 (10/08) CIVIL MINUTES - GENERAL Page 5 of 5 Case 2:13-cv-08298-SVW-AGR Document 26 Filed 04/29/14 Page 5 of 5 Page ID #:564
Anthony Tamilio v. Walter Fogg, Superintendent, Eastern Correctional Facility, and Robert Abrams, Attorney General of New York, 713 F.2d 18, 2d Cir. (1983)