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
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: Defendant’s 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
Mulligan’s 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 Mulligan’s 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 defendant’s 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
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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 LAPD’s union, the LAPPL, began strategizing with the president of the LAPPL,
Tyler Izen, on how they could tarnish Mulligan’s image in an attempt to force Mulligan to drop his
claim. (Id. ¶ 45, Ex. A).
Rose discovered from a source that two days before Mulligan’s 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). Mulligan’s 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 Rose’s press release with an embedded link to the Glendale tape. (Id. ¶ 79).
The release was circulated to maximize national media coverage, and prominently mentioned
Mulligan’s 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 Mulligan’s 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 Mulligan’s
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
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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 Rose’s 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 Mulligan’s 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
(Mulligan’s 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 Mulligan’s 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 Mulligan’s First Amendment rights. (Id. at 3-5). In so holding, J udge Klausner stated that
Mulligan’s “strongest and most relevant” evidence included Rose’s email to Izen stating that Mulligan’s
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 [Mulligan’s]
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 Mulligan’s decision to file a claim against the City of Los Angeles and the LAPD.
As exhibits to Mulligan’s 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
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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 plaintiff’s
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 defendant’s 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 Mulligan’s 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
Rose’s retaliatory intent was in fact litigated. Mulligan argues that “Rose’s mental state neither was, nor
could have been, at issue in Mulligan I” because Mulligan “[c]ould not have proved his case against the
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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 Rose’s mental state.” (Id. at 5:13-16). However,
Mulligan did just that in Mulligan I.
In Mulligan’s opposition to Izen and the LAPPL’s 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 Rose’s retaliatory intent in
order to prove his case against Izen and the LAPPL.

Not only was evidence of Rose’s retaliatory intent offered in Mulligan I, but this evidence was
considered by J udge Klausner. J udge Klausner characterized Rose’s email to Izen stating that
Mulligan’s attorney will “fold when he learns what we have” as Mulligan’s 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 Rose’s 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 Klausner’s determination that
Mulligan’s 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 Rose’s retaliatory intent in the instant case.
V. CONCLUSION
For the reasons stated above, collateral estoppel bards plaintiff Mulligan’s suit against defendant
Rose. Because Plaintiff has failed to state a claim upon which relief can be granted, Defendant's motion
to dismiss Plaintiff’s complaint is hereby GRANTED. The complaint is DISMISSED, with prejudice.
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