# Schmidlin v. City of Palo Alto

> California Court of Appeal · January 2, 2008 · 69 Cal. Rptr. 3d 365

URL: https://www.frixlaw.com/law-library/cases/9745992

## Case

- **Full name:** MICHAEL SCHMIDLIN, Plaintiff and Appellant, v. THE CITY OF PALO ALTO Et Al., Defendants and Appellants
- **Court:** California Court of Appeal
- **Decided:** January 2, 2008
- **Citations:** 69 Cal. Rptr. 3d 365; 157 Cal. App. 4th 728
- **Precedential status:** Published
- **Opinion:** Dissent by Mihara
- **Judges:** Rushing, Mihara
- **Cited by:** 172 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

MIHARA, J., Dissenting.
The majority opinion misconstrues both the evidence and the law in its analysis of the statute of limitations issue. As a result, the majority opinion erroneously rejects the City of Palo Alto’s (City) contention that it was entitled to prevail on its claim that the federal excessive force cause of action was barred by the statute of limitations. A correct analysis requires a conclusion that the City 1 was entitled to *781 prevail on its summary adjudication motion asserting that the statute of limitations barred Michael Schmidlin’s federal excessive force cause of action, which would have precluded Schmidlin from prevailing on that cause of action. Therefore, I must respectfully dissent.
I. The Statute of Limitations Issue
A. Preservation of Issue Below
Schmidlin argues that the City failed to preserve the statute of limitations issue for review on appeal because the issue was not raised at the jury trial, although the City raised the issue in its summary adjudication motion and in a motion for judgment notwithstanding the verdict.
1. Background
Schmidlin alleged in his complaint that the excessive force occurred on March 29, 1997, at the time of his arrest. He made no allegations regarding when criminal charges were filed. Schmidlin’s civil complaint was filed on December 12, 2000. In its answer, the City asserted the affirmative defense of the statute of limitations.
The City filed a motion for summary judgment or summary adjudication in which it argued that Schmidlin’s federal excessive force cause of action was barred by the statute of limitations. 2 The City explicitly addressed the *782 question of whether the limitations period had been tolled under Government Code section 945.3. It noted that the complaint had not been filed until April 18, 1997, and therefore the tolling period had not begun until that time, which rendered untimely Schmidlin’s civil complaint alleging a federal excessive force cause of action. The City’s motion did not initially address the federal law accrual issue. The City’s separate statement set out as an undisputed fact that the criminal complaint was filed on April 18, 1997.
Schmidlin’s opposition to the City’s motion asserted that his federal excessive force cause of action was not barred, because accrual was delayed under federal law and a period of time was tolled under state law. He explicitly acknowledged that the tolling period commenced “from the time charges are filed . . . .” Schmidlin did not assert that criminal charges were pending before a court at any time prior to the filing of the criminal complaint. In his separate statement, Schmidlin admitted that it was undisputed that the criminal complaint was filed no sooner than April 18, 1997. 3 In a declaration in opposition to the City’s motion, Schmidlin’s attorney declared that he had “attempted to obtain the police report” “a few weeks after *783 Mr. Schmidlin was arrested,” but was told that he could not obtain it because “no charges had been filed” and it was not clear when or if charges would be filed.
The City’s reply to Schmidlin’s opposition argued that the federal law accrual rule relied upon by Schmidlin did not apply to the federal excessive force cause of action.
The superior court denied the City’s motion for summary adjudication of the federal excessive force cause of action. The superior court did not identify any factual disputes as to this issue. 4 It acknowledged that “tolling” would not make the civil complaint timely because the arrest had occurred on March 29, 1997, the criminal complaint charging Schmidlin with criminal offenses was filed on April 18, 1997, the criminal charges were dismissed on December 13, 1999, and the civil complaint was not filed until December 12, 2000. However, the superior court accepted Schmidlin’s legal argument that this cause of action did not accrue under federal law until the criminal charges were dismissed, because “[t]he time between the arrest and the filing of the criminal complaint is not counted . . .” under the federal law accrual rule.
In its trial brief, the City renewed its claim that the statute of limitations barred the federal excessive force cause of action and suggested that the statute of limitations issue could be tried separately to the court in advance of the jury trial. However, the appellate record does not reflect that the City pursued this issue, and the City did not place the statute of limitations issue before the jury at trial. During in limine motions, Schmidlin’s trial counsel stated that the criminal charges had been filed “about a month” after Schmidlin’s arrest.
The jury returned a special verdict finding in favor of Schmidlin on the federal excessive force cause of action and the state law battery cause of action. The jury determined that Schmidlin’s damages were $24,000. The damage award was not allocated between the two causes of action, but it was allocated between the three officers who were found to have used excessive force and to have committed battery. Officer Trujillo, who was only found liable on the state law battery cause of action (because he had qualified immunity on the federal cause of action), was found liable for $1,500 of the *784 $24,000 in damages. Schmidlin was awarded attorney’s fees against Officers Milliken and Martin (but not Trujillo).
After the jury’s verdicts, the City brought a motion for judgment notwithstanding the verdict (JNOV) in which it renewed its contention that the federal excessive force cause of action was barred by the statute of limitations. The City’s argument was based on its summary adjudication motion on this issue. In Schmidlin’s opposition to the City’s JNOV motion, he did not make any assertions about when an accusatory pleading was filed or when the criminal charges became pending before a court.
At the hearing on the JNOV motion, the trial court expressed the (mistaken) belief that the summary adjudication motion had been denied as to the statute of limitations issue “based on the existence of triable issues of fact. . . .” The court asserted that the separate statements had not established “any of the relevant dates other than the date of arrest.” The court noted that it was “limited to the trial record,” and it asked the City’s trial counsel to “cite to me where that evidence appears” that would prove that “the statute of limitations was exceeded here.” “[Tjhere has to be something in the trial record, something that was before the Court and before the jury, that contains those dates. And again, I know the date of arrest was talked about during the trial. I don’t recall if the date of filing of the original charges was on the record. I don’t know if the date that the civil complaint ultimately was filed is on the record. . . . Because if those dates aren’t in the record, then, I have no basis to make a determination, as [the superior court] had no basis to from the separate statement to determine whether the statute had been exceeded or not.”
The trial court denied the JNOV motion on the ground that it was an inappropriate motion where the issue had not been placed before the jury at trial.
2. Analysis
Schmidlin contends that the City cannot raise the statute of limitations issue on appeal because a challenge to the denial of a summary judgment motion cannot be raised after a trial on the merits. The City adequately preserved the statute of limitations issue for appeal in this case by bringing a summary adjudication motion on the issue. 5
*785 Schmidlin relies on Waller, supra, 12 Cal.App.4th 830 , to support his contention that the City cannot raise the statute of limitations issue on appeal. Waller was a judgment roll appeal (there was no reporter’s transcript) after a jury verdict in favor of the lessor plaintiffs in an action for unpaid rent due under a lease. (Waller, at pp. 831-832.) The lessee defendant’s sole contention on appeal was that the superior court had erred in denying its summary judgment motion. (Waller, at p. 832.) The defendant had sought summary judgment on the ground that there was no dispute of fact that it was not obligated to pay the allegedly unpaid rent. (Waller, at p. 832.) The summary judgment motion was denied on the ground that there was a dispute of fact as to whether the plaintiffs were entitled to the unpaid rent under the lease. (Waller, at p. 832.) Because the appeal was on the judgment roll, the judgment was presumed to be correct and to be supported by the evidence. (Waller, at p. 832.)
The court concluded that an error in denial of summary judgment could not result in reversal under these circumstances unless the error prejudiced the defendant at trial. (Waller, supra, 12 Cal.App.4th at p. 833 .) “Since we are enjoined to presume that the trial itself was fair and that the verdict in plaintiffs’ favor was supported by the evidence, we cannot find that an erroneous pretrial ruling based on declarations and exhibits renders the ultimate result unjust.” (Waller, at p. 833.) “Our opinion is limited to situations in which a party moves for summary judgment on the ground that there is no triable issue of fact, the motion is denied, and the same questions raised by the motion are then decided adversely to the unsuccessful moving party after a trial on the merits which is itself free from prejudicial error.” (Waller, at p. 836; accord, Vine v. Bear Valley Ski Co. (2004) 118 Cal.App.4th 577, 591 [ 13 Cal.Rptr.3d 370 ]; California Housing Finance Agency v. Hanover/California Management & Accounting Center, Inc. (2007) 148 Cal.App.4th 682, 688 [ 56 Cal.Rptr.3d 92 ].)
*786 The limited holding in Waller does not apply here because summary adjudication was not denied on the ground that there was a triable issue of fact but on legal grounds, and the statute of limitations issue was not litigated at trial and was not resolved adversely to the City by the trier of fact. Under these circumstances, the denial of a summary judgment motion may constitute prejudicial error and require reversal of the judgment after trial. (Gackstetter v. Frawley (2006) 135 Cal.App.4th 1257, 1268-1270, 1279 [ 38 Cal.Rptr.3d 333 ].)
In this case, the City was prejudiced by the denial of its summary adjudication motion if that denial was erroneous. The superior court’s denial of the summary adjudication motion was not based on disputed facts but on the superior court’s rejection of the City’s legal position. The City had nothing to gain by presenting the statute of limitations issue to the jury because this legal ruling completely undermined its position. It would not have been possible for the jury to resolve this issue in the City’s favor under the legal ruling that resulted in the denial of the City’s summary adjudication motion. On the other hand, if the superior court had granted the summary adjudication motion, the federal excessive force cause of action would have been removed from the jury’s consideration. 6 The City is not precluded from mounting an appellate challenge to the superior court’s denial of its summary adjudication motion on the statute of limitations issue.
B. Federal Accrual Issue and Retroactivity
After oral argument in this case, the United States Supreme Court held in Wallace v. Kato (2007) 549 U.S. 384 [ 166 L.Ed.2d 973 , 127 S.Ct. 1091 ] (Wallace) that accrual of a cause of action under 42 United States Code section 1983 (in Wallace a cause of action for false arrest) is not delayed until the conclusion of the criminal proceedings. This court thereafter solicited supplemental briefing on the impact of Wallace. In his supplemental briefs, Schmidlin claims that Wallace cannot properly be applied to this case. Relying on Chevron Oil Co. v. Huson (1971) 404 U.S. 97 [ 30 L.Ed.2d 296 , 92 S.Ct. 349 ] (Chevron), Schmidlin argues that Wallace is not retroactive. In a supplemental brief, Schmidlin admits that Chevron has been overruled and argues that the 1993 case overruling Chevron is somehow inapplicable here. He is incorrect.
*787 “[A] rule of federal law, once announced and applied to the parties to the controversy, must be given full retroactive effect by all courts adjudicating federal law.” (Harper v. Virginia Dept. of Taxation (1993) 509 U.S. 86, 96 [ 125 L.Ed.2d 74 , 113 S.Ct. 2510 ] (Harper).) “When [the United States Supreme] Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate [the] announcement of the rule.” (Harper, at p. 97.) “When this Court does not ‘reserve the question whether its holding should be applied to the parties before it,’ however, an opinion announcing a rule of federal law ‘is properly understood to have followed the normal rule of retroactive application’ and must be ‘read to hold . . . that its rule should apply retroactively to the litigants then before the Court.’ ” (Harper, at pp. 97-98.) “The Supremacy Clause, U.S. Const., Art. VI, cl. 2, does not allow federal retroactivity doctrine to be supplanted by the invocation of a contrary approach to retroactivity under state law. Whatever freedom state courts may enjoy to limit the retroactive operation of their own interpretations of state law, [citation], cannot extend to their interpretations of federal law.” (Harper, at p. 100.)
Harper could not be more clear, and it obviously applies here. Since Wallace therefore also applies here and definitively rejects the sole basis for the federal law delayed accrual rule upon which Schmidlin relied in opposition to the City’s summary adjudication motion, the remaining question is whether Schmidlin nevertheless was entitled to prevail on the summary adjudication motion because he established that there were triable issues of fact as to whether his federal excessive force cause of action was timely filed due to state law tolling under Government Code section 945.3.
C. State Law Tolling Issue
Government Code section 945.3 provides for the tolling of the statute of limitations in certain civil actions related to criminal cases. “No person charged by indictment, information, complaint, or other accusatory pleading charging a criminal offense may bring a civil action for money or damages against a peace officer or the public entity employing a peace officer based upon conduct of the peace officer relating to the offense for which the accused is charged, including an act or omission in investigating or reporting the offense or arresting or detaining the accused, while the charges against the accused are pending before a .. . court, [f] Any applicable statute of *788 limitations for filing and prosecuting these actions shall be tolled during the period that the charges are pending before a . . . court." 7 (Gov. Code, § 945.3, italics added.)
Schmidlin’s verified complaint alleged that the excessive force had occurred on March 29, 1997, when he was arrested. The City’s summary adjudication motion established several undisputed facts. The criminal complaint was filed on April 18, 1997, charging Schmidlin with various misdemeanor offenses. The criminal charges were ultimately dismissed on December 13, 1999. Schmidlin filed this action on December 12, 2000. The parties agree that the applicable limitations period is one year.
“When the defendant moves for summary [adjudication] on statute of limitations grounds, the defendant bears both the initial burden of production and the burden of persuasion that the limitations period has expired. (Code Civ. Proc., § 437c, subd. (p)(2).) The ‘initial burden of production [requires the defendant] to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.’ (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [ 107 Cal.Rptr.2d 841 , 24 P.3d 493 ].) ‘A prima facie showing is one that is sufficient to support the position of the party in question.’ ” (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 316 [ 40 Cal.Rptr.3d 313 ].)
“[H]ow the parties moving for, and opposing, summary judgment may each carry their burden of persuasion and/or production depends on which would bear what burden of proof at trial.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 851 .) While the City bore the burden of proving that the one-year limitations period had expired when Schmidlin filed his action (Evid. Code, § 500), Schmidlin bore the burden of proving that the limitations period was tolled under Government Code section 945.3. (State of Caifornia v. Industrial Acc. Com. (1961) 195 Cal.App.2d 765, 768 [ 16 Cal.Rptr. 138 ] [plaintiff has burden of proving exception to statute of limitations].)
The City’s undisputed factual showing in support of its summary adjudication motion satisfied its burden of showing that the one-year limitations period had expired. Schmidlin’s federal excessive force cause of action *789 accrued on March 29, 1997. Charges were pending before a court from April 18, 1997, to December 13, 1999. Schmidlin did not initiate his action until December 12, 2000, more than two weeks after the expiration of the limitations period. Since the City satisfied its burden, the burden shifted to Schmidlin to make a showing that there was a triable issue of material fact that precluded summary adjudication.
Schmidlin asserts that the limitations period was tolled from the time of his arrest, or no later than April 1, 1997, until the dismissal of the charges. The limitations period is tolled only “during the period that the charges are pending before a . . . court” after the person is “charged by” an “accusatory pleading charging a criminal offense . . . ,” 8 (Gov. Code, § 945.3.) In response to the City’s summary adjudication motion, however, Schmidlin did not produce any evidence that there was a factual dispute about when he was charged by an “accusatory pleading” or when “charges” were “pending before a . . . court.” Schmidlin did not assert that criminal charges were pending at any time prior to the April 18, 1997 filing of the criminal complaint. Indeed, Schmidlin’s attorney’s declaration in opposition to the City’s motion indicated that the April 18, 1997 criminal complaint represented the initiation of the charges. Schmidlin’s attorney declared that, “a few weeks after Mr. Schmidlin was arrested,” the attorney was told that he could not obtain a police report because “no charges had been filed” and it was not clear when or if charges would be filed. (Italics added.)
Because the City met its burden in support of its summary adjudication motion and Schmidlin’s opposition did not demonstrate that there were any triable issues of material fact with respect to the untimeliness of his federal excessive force cause of action, the City was entitled to prevail on its summary adjudication motion.
Although this should be the end of our analysis, Schmidlin makes several new arguments on appeal that he did not raise in his opposition to the City’s summary adjudication motion or at any other time in the superior court. Schmidlin argues that the limitations period was tolled from the time of his arrest because a “notice to appear” “had to have been issued to Schmidlin on March 29, 1997,” and a notice to appear must have been filed with a magistrate no later than March 31, 1997. Claiming that a notice to appear is an “accusatory pleading” within the meaning of Government Code section 945.3, Schmidlin contends that the entire period between his arrest and the dismissal of charges was tolled under Government Code section 945.3.
*790 Schmidlin did not raise his notice to appear theory in response to the City’s summary adjudication motion below. “A party is not permitted to change his position and adopt a new and different theory on appeal. To permit him to do so would not only be unfair to the trial court, but manifestly unjust to the opposing litigant.” (Ernst v. Searle (1933) 218 Cal. 233, 240-241 [ 22 P.2d 715 ].) This rule applies to both summary judgment motions and trials. (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 29 [ 21 Cal.Rptr.2d 104 ].) However, “[i]f a question of law only is presented on the facts appearing in the record the change in theory may be permitted.” (Panopulos v. Maderis (1956) 47 Cal.2d 337, 341 [ 303 P.2d 738 ].)
The questions of whether a notice to appear was issued and if and when such notice came before a court are not questions of law, but questions of fact. Schmidlin’s failure to raise this issue below in response to the City’s summary adjudication motion deprived the City of the opportunity to produce evidence that no notice to appear issued or was pending before a court prior to the filing of the criminal complaint on April 18, 1997. It follows that Schmidlin is precluded from adopting this new theory on appeal.
Even if Schmidlin could raise this new theory on appeal, it would fail. The only evidence in the appellate record that Schmidlin cites in support of his appellate factual assertions is evidence that he was booked into jail on March 29, 1997, and released from jail on March 30, 1997. He does not cite to any evidence that a notice to appear issued or was pending before a magistrate at any time. Instead, Schmidlin relies upon inferences that he draws from the misdemeanor docket in his criminal case. The misdemeanor docket was not before the superior court when it ruled on the City’s summary adjudication motion, but this court has granted Schmidlin’s request for judicial notice of the misdemeanor docket. 9
The misdemeanor docket reflects that a bail bond in the amount of $3,000 was posted on Schmidlin’s behalf on April 1, 1997. No other reference to April 1, 1997, appears in the misdemeanor docket. There is no mention of a notice to appear or of any court filing of charges. Schmidlin argues that the fact that a $3,000 bail bond was posted on April 1, 1997, demonstrates that the “documentation of the charges against Schmidlin were [sic\ received by the court by April 1, 1997” because the $3,000 bail amount “must have been set by a magistrate,” since it exceeds the bail amount listed on the prebooking *791 information sheet. He asserts that “[t]he court must have had notice of the charges if it had notice of the bail amount, since bail is based on the crimes charged.”
Schmidlin’s towering stack of inferences collapses under the weight of his own allegation in his verified complaint that “jail officials arbitrarily raised his bail. . . .” (Italics added.) A party is bound by the allegations in a verified complaint and may not assert contradictory facts in support of a contention that the statute of limitations was tolled. (Knoell v. Petrovich (1999) 76 Cal.App.4th 164, 168-169 [ 90 Cal.Rptr.2d 162 ].) Schmidlin is bound by his verified allegation and may not now assert that it must have been a magistrate, rather than “jail officials,” who set the higher bail amount.
To free Schmidlin from the fetters of his verified allegation, the majority opinion posits that, when Schmidlin alleged that “jail officials” increased the bail amount, he could have been including “a duty judge or commissioner” in “jail officials.” (Maj. opn., ante, at pp. 755-756, fn. 13.) While it hardly seems likely that Schmidlin’s attorney-drafted complaint would have identified a judge or commissioner as a “jail official[],” this attempt to stretch the meaning of Schmidlin’s verified allegation serves no purpose. Because the burden shifted to Schmidlin to demonstrate that the City’s prima facie showing was undermined by a triable issue of material fact, he was obligated to produce evidence in the superior court to support his tolling argument. He made no effort to satisfy that burden. Schmidlin’s grasping attempts to conjure up factual issues on appeal are out of both place and time. Exactly what Schmidlin may have meant by “jail officials” may remain a mystery to my colleagues, but, by failing to produce evidence below, Schmidlin deprived the City of the opportunity to establish by undisputed evidence precisely who was responsible for setting the bail amount. Schmidlin cannot shift the burden back to the City at this point by making inferences that are, at the very least, seemingly inconsistent with his verified allegations. 10
At best, these documents support an inference that a notice to appear was issued no later than April 1, 1997, when bail was posted. (See Pen. Code, § 1269b [jail officials must give notice to arrested person of appearance time *792 when releasing person on bail].) Schmidlin did not produce, and cannot point to, any evidence that this notice to appear was filed with a court. A notice to appear in a misdemeanor case must be filed by the officer “as soon as practicable,” but this filing will be “with the prosecuting attorney,” not the court, unless “the prosecuting attorney has previously directed the officer” to file the notice with the magistrate. (Pen. Code, § 853.6, subd. (e).) The prosecutor then has 25 days from the time of the arrest to decide whether to “initiate prosecution by filing the notice or a formal complaint with the magistrate . . . .” (Pen. Code, § 853.6, subd. (e).)
Nothing in the record reflects that the prosecutor had previously directed the officer to file a notice to appear with the magistrate, and the fact that the prosecutor filed a formal complaint within 25 days of the time of the arrest supports a conclusion that the notice to appear was filed with the prosecutor rather than with the magistrate.
Even if I could accept Schmidlin’s assertion that a notice to appear must have been before a magistrate on April 1, 1997,1 would not be able to accept his claim that the notice to appear constituted an “accusatory pleading” within the meaning of Government Code section 945.3 in this case. The majority opinion reasons that limiting “accusatory pleading” to an information, indictment or complaint would render the statute’s use of “other accusatory pleading” surplusage. Based on this premise, it concludes that an accusatory pleading necessarily includes a notice to appear or citation for a misdemeanor offense.
It is inconceivable that the Legislature intended for the words “accusatory pleading” to have one meaning in Government Code section 945.3 and a different meaning in the Penal Code, since the Government Code contains no definition of “accusatory pleading” while the Penal Code includes numerous provisions which define and elucidate the meaning of “accusatory pleading.” Part 2 of the Penal Code, which deals with criminal procedure and is where one would ordinarily look for the meaning of words describing criminal pleadings, defines “accusatory pleading” to “include an indictment, an information, an accusation, and a complaint.” (Pen. Code, § 691.) No mention is made of a notice to appear or citation. The Penal Code requires misdemeanors to be prosecuted by complaint (Pen. Code, § 740), and the Penal Code identifies the “first pleading” in a misdemeanor prosecution as the complaint. (Pen. Code, § 949.) A prosecution for a misdemeanor offense is not “commenced” for criminal statute of limitations purposes until “[a] complaint is filed.” (Pen. Code, § 804, subd. (b).) Under the Penal Code, there are limited circumstances under which a notice to appear may serve as the complaint and *793 therefore constitute an accusatory pleading. A notice to appear may serve as the complaint only “when filed with the magistrate, in lieu of a verified complaint’ after the notice to appear has been filed by the officer or the prosecutor with the court. (Pen. Code, § 853.9, subd. (a), italics added.)
The fact that a formal complaint was filed on April 18, 1997, rebuts the notion, in this case, that a notice to appear was filed with a magistrate “in lieu of’ a formal complaint. While it is not impossible for a notice to appear to serve as the complaint, it can only do so when it is filed “in lieu of’ a complaint, and the timely filing of a formal complaint in this case disproves Schmidlin’s contention that the notice to appear served as an “accusatory pleading” in this case.
The majority opinion’s analysis attempts to read out of Government Code section 945.3 the statutory language requiring that the criminal charges be contained in an accusatory pleading that is “pending before a . . . court” for the statute’s tolling provision to apply. Under the facts of this case, Schmidlin failed to satisfy his burden of showing that there were material factual disputes with regard to the application of Government Code section 945.3. He produced no evidence that a notice to appear was filed with a court in lieu of a formal complaint prior to the filing of the formal complaint. Consequently, any tolling under Government Code section 945.3 was insufficient to render his complaint timely, and the City was entitled to prevail on its summary adjudication motion and obtain the dismissal of Schmidlin’s federal excessive force cause of action.
II. Conclusion
The superior court erroneously denied the City’s motion for summary adjudication of the federal excessive force cause of action on statute of limitations grounds. The appropriate remedy, in my view, would be to direct the trial court to modify the judgment to eliminate the portion that finds for Schmidlin on the federal cause of action. The damages award is not impacted. The jury awarded $24,000 in damages, which was not allocated between the federal and state causes of action. The fact that Trujillo was found liable for $1,500 in damages proves that the damages were not solely attributable to the federal cause of action. And there was no reason to believe that the jury would have found that Schmidlin suffered different damages from the excessive force than he did from the battery. The two causes of action were based on the same acts. The City did not request that the jury be required to allocate the damages award between the federal and state causes of action even though it was aware that the two were distinguished by the statute of *794 limitations issue that affected only the federal cause of action. Under the circumstances, the damages award must be viewed as fully attributable to the state law cause of action. 11
On January 2, 2008, the opinion was modified to read as printed above. The petition of defendants and appellants for review by the Supreme Court was denied March 12, 2008, S159954. Moreno, J., did not participate therein.
There are several individual defendants in addition to the City, but I will usually refer to them collectively as the “City” for ease of reference.
The majority opinion insists that the City’s notice of motion, motion, and separate statement were inadequate because the City did not adequately identify the “cause of action” that was targeted by its summary adjudication motion.
The “Seventh Cause of Action” in Schmidlin’s complaint alleged that the City’s police officers violated 42 United States Code section 1983 when they “unlawfully detained, arrested, and imprisoned plaintiff; used unreasonable and excessive force against against [sic] him; testified falsely in their police reports and in court so that he would be charged and convicted of crimes he did not commit.” The City’s notice of motion sought “summary adjudication” of Schmidlin’s “Seventh [and other] . . . Causes of Action . ...” The City’s motion specified that the City sought summary adjudication of Schmidlin’s “claim for damages under 42 U.S.C. § 1983 ... for deprivation of federal civil lights, based upon his arrest, the use of force to arrest him, and alleged false statements in police reports and trial testimony used to prosecute him.”
The majority opinion suggests that the City’s notice of motion and motion were inadequate to support summary adjudication of the excessive force claim in Schmidlin’s Seventh Cause of Action because the City did not adequately specify that it was seeking summary adjudication of each of the separate causes of action that Schmidlin had combined in his Seventh Cause of Action.
“A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1), italics added.) This statutory language has been long been *782 interpreted to permit summary adjudication of “separate and distinct wrongful acts which are combined in the same cause of action. To rule otherwise would defeat the time and cost saving purposes of [the current version of Code of Civil Procedure section 437c] and allow a cause of action in its entirety to proceed to trial even where, as here, a separate and distinct alleged obligation or claim may be summarily defeated by summary adjudication. ... [A] party may present a motion for summary adjudication challenging a separate and distinct wrongful act even though combined with other wrongful acts alleged in the same cause of action.” (Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848,1854-1855 [ 16 Cal.Rptr.2d 458 ], fn. omitted; accord, Exxon Corp. v. Superior Court (1997) 51 Cal.App.4th 1672, 1688, fn. 11 [ 60 Cal.Rptr.2d 195 ].)
The majority opinion relies on Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542 [ 235 Cal.Rptr. 106 ] (Gonzales) to support its contention that the City was required to be more specific in its notice of motion and motion. Gonzales is inapt for two reasons. First, the summary judgment motion in Gonzales made no mention whatsoever of summary adjudication, so it obviously was inadequate to support the summary adjudication of issues that the superior court granted. (Gonzales, at p. 1544.) Moreover, at the time of Gonzales, California law permitted summary adjudication of issues, a procedure which the Legislature disposed of long ago. “[T]here is no longer any reason for a notice of motion to identify specific issues; a listing of the disputed causes of action, as was done here, is sufficient.” (Sequoia Ins. Co. v. Superior Court (1993) 13 Cal.App.4th 1472, 1478 [ 16 Cal.Rptr.2d 888 ].) California Rules of Court, rule 3.1350(b), which the majority opinion also cites, does not require the notice of motion or motion to do anything more than specify the cause of action, which the City’s motion did.
The City’s notice of motion and motion listed the causes of action that were the subjects of the summary adjudication motion, and the motion further identified the federal excessive force claim as a subject of the motion. It follows that the City’s notice of motion and motion were not procedurally inadequate to support a summary adjudication of Schmidlin’s federal excessive force cause of action, notwithstanding the fact that he had combined this cause of action with others in a single count of his complaint.
A copy of the misdemeanor complaint appears in the record. It bears no file stamp, but it indicates that it was drafted on April 17, 1997.
“Upon the denial of a motion for summary judgment, on the ground that there is a triable issue as to one or more material facts, the court shall, by written or oral order, specify one or more material facts raised by the motion as to which the court has determined there exists a triable controversy. This determination shall specifically refer to the evidence proffered in support of and in opposition to the motion which indicates that a triable controversy exists.” (Code Civ. Proc., § 437c, subd. (g).)
The majority opinion asserts that the City has “explicitly disclaimed” its contention that the superior court erred in denying its summary adjudication motion. (Maj. opn., ante, at p. 742.) The majority opinion misconstrues the briefs.
In its opening appellate brief, the City asserted that the superior court’s denial of its motion for summary adjudication of the federal excessive force cause of action on statute of *785 limitations grounds was “error.” It also asserted that the trial court had erred in denying its JNOV motion. Schmidlin responded by contending that the superior court’s order denying summary adjudication “is not appealable,” relying on Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830 [ 16 Cal.Rptr.2d 38 ] (Waller). As I explain in the text, Waller is inapplicable here. The City responded to this argument by claiming that it was not appealing from the denial of the summary adjudication motion but instead challenging the trial court’s error in “denying JNOV and in entering judgment . ...” In its supplemental briefing, the City repeated that it was challenging the court’s error in “denying JNOV and in entering judgment. . . .”
It is readily apparent to me that the City has not abandoned or disclaimed its contention that the denial of its summary adjudication motion was erroneous. The City, perhaps recognizing that it could not directly appeal from the denial of a summary adjudication motion and not wishing to attack Waller , chose to rephrase its argument as an assertion that the trial court erred in entering judgment, obviously incorporating its argument in the opening brief regarding the nature of the error and implicitly asserting that the entry of judgment was erroneous because of the superior court’s error in denying the summary adjudication motion.
“If a motion for summary adjudication is granted, at the trial of the action, the . . . affirmative defense ... as to the motion which has been granted shall be deemed to be established and the action shall proceed as to the cause or causes of action . . . remaining.” (Code Civ. Proc., § 437c, subd. (n)(l).)
The current version of this statute says “pending before a superior court,” but the version in effect at the time of Schmidlin’s arrest, before court unification, applied where the charges were pending before a municipal or superior court.
Schmidlin concedes that he was not charged by an “indictment, information, [or] complaint” (Gov. Code, § 945.3) prior to April 18, 1997.
As a court record, the misdemeanor docket is judicially noticeable (Evid. Code, § 452, subd. (d)), and we may take judicial notice of it even though it was not before the superior court or the trial court. (Flatley v. Mauro (2006) 39 Cal.4th 299, 306, fn. 2 [ 46 Cal.Rptr.3d 606 , 139 P.3d 2 ].) However, “any matter to be judicially noticed must be relevant to a material issue.” (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [ 101 Cal.Rptr.2d 200 , 11 P.3d 956 ].)
Schmidlin reasons that the discrepancy between the total of the bail amounts indicated on the prebooking information sheet ($1,050) and the total bail amount listed on the misdemeanor docket ($3,000) proves that a magistrate must have set his bail. Like his other factual assertions, this evidence was not presented in response to the City’s motion, so the City had no opportunity to rebut it. There are numerous possible explanations for the discrepancy. Either one of the documents may have been erroneous, or the nature of the charges may have changed after the preparation of the prebooking information sheet. And the bail amounts listed on the prebooking information sheet obviously did not include various additional fees that a bail bond would have been required to cover.
Since Schmidlin should not have succeeded on his federal cause of action, he should not have been entitled to an attorney’s fees award. The City filed a separate appeal from the attorney’s fees award, and I also dissent in that case.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9745992. Public record. Not legal advice.