B.B. v. County of Los Angeles

Filed 8/9/18 (unmodified opn. attached; second modification)
TO BE PUBLISHED IN THE OFFICIAL REPORTS
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
B.B., a Minor, etc., et al., B264946
Plaintiffs and Appellants, Los Angeles County
Super. Ct. Nos. TC027341,
v. TC027438, BC505918
COUNTY OF LOS ANGELES et al.,
ORDER MODIFYING OPINION
Defendants and Appellants. [NO CHANGE IN JUDGMENT]
T.E., a Minor, etc., et al.,
Plaintiffs and Appellants,
v.
COUNTY OF LOS ANGELES et al.,
Defendants and Appellants.
D.B., a Minor, etc., et al.,
Plaintiffs and Respondents,
v.
COUNTY OF LOS ANGELES et al.,
Defendants and Appellants.
THE COURT:
It is ordered that the opinion filed herein on July 10, 2018, be modified
as follows:
1. On page 3, the third sentence of the first full paragraph is
deleted, and the following is inserted in its place:
“Accordingly, we will direct the trial court to vacate the judgment and enter a
separate judgment against Deputy Beserra and the County and a separate
judgment against Deputy Aviles and the County, holding them liable for the
noneconomic damages award in an amount proportionate to the jury’s
comparative fault determinations.”
2. On page 3, the first sentence of the last paragraph is deleted, and
the following is inserted in its place:
“Plaintiffs B.B., B.B., and T.E. (“Cross-Appellants”) filed a cross-appeal from
the trial court’s order granting Defendants summary adjudication on Cross-
Appellants’ claims for civil rights violations under Civil Code section 52.1.”
3. The sentence beginning at the bottom of page 3, and continuing
to the top of page 4, is deleted, and the following is inserted in its place:
“We conclude the summary adjudication order must be reversed as to the
Cross-Appellants, because Cross-Appellants presented sufficient evidence to
raise a triable issue as to whether the deputies acted intentionally in
interfering with Burley’s right to be free from unreasonable seizure.”
4. On page 42, the first full sentence at the top of the page is revised
as follows: “and the County” is added after “Aviles” (the beginning of the
sentence shall read, “We agree, and will therefore direct the trial court to
enter a separate judgment against Aviles and the County, . . . .”).
5. On page 50, the last sentence before section “5.” is deleted, and
the following is inserted in its place:
“Because Deputy Aviles’s liability is governed by section 1431.2, the
judgment must be vacated and separate judgments must be rendered against
(i) Deputy Beserra and the County and (ii) Deputy Aviles and the County, in
direct proportion to each individual defendant’s percentage of fault, as found
in the jury’s comparative fault determinations.”
6. On page 50, the first sentence of the first paragraph of section
“5.” is revised as follows: “B.B., B.B., and T.E.” is added after “Plaintiffs” and
before “cross-appealed” (the beginning of the sentence shall read, “Plaintiffs
B.B., B.B., and T.E. cross-appealed from the trial court’s order . . . .).”
2
7. The sentence beginning at the bottom of page 50, and continuing
to the top of page 51, is revised as follows: the word “Plaintiffs’ ” at the end of
the sentence is replaced with “Cross-Appellants’ ” (the end of the sentence
shall read, “. . . we conclude the court erred in granting summary
adjudication against Cross-Appellants’ Bane Act claims.”).
8. On page 51, sub-heading “a.” is deleted, and the following is
inserted in its place: “a. Defendants were not entitled to summary
adjudication on Cross-Appellants’ Bane Act claims”
9. On page 52, the first sentence of the first full paragraph is
deleted, and the following is inserted in its place:
“In their cross-appeal, Cross-Appellants argue the trial court fundamentally
misread Shoyoye.”
10. On page 52, the third sentence of the first full paragraph is
deleted, and the following is inserted in its place:
“But where the civil rights violation is intentional, Cross-Appellants argue
the statutory requirements of the Bane Act are met, even if coercion is
inherent in the underlying violation.”
11. On page 52, the last sentence of the first full paragraph is revised
as follows: the word “Plaintiffs” at the beginning of the sentence is replaced
with “Cross-Appellants” (the beginning of the sentence shall read, “We agree
with Cross-Appellants . . . .”).
12. The sentence beginning at the bottom of page 59, and continuing
to the top of page 60, is revised as follows: the word “Plaintiffs” at the
beginning of the sentence is replaced with “Cross-Appellants” (the beginning
of the sentence shall read, “Here, Cross-Appellants presented . . . .”).
13. The last full sentence in the body of page 60 is revised as follows:
the word “Plaintiffs’ ” in mid-sentence is replaced with “Cross-Appellants’ ”
(the middle of the sentence shall read, “. . . Cross-Appellants’ evidence
suggested Defendants . . . .”).
14. On page 61, the last full sentence before sub-section “b.” is
revised as follows: the word “Plaintiffs” at the beginning of the sentence is
replaced with “Cross-Appellants” and the word “Plaintiffs’ ” at the end of the
sentence is replaced with “Cross-Appellants’ “ (those portions of the sentence
shall read, “Because Cross-Appellants presented sufficient evidence . . .
summary adjudication of Cross-Appellants’ Bane Act claims.”).
3
15. On page 65, the last sentence of the first paragraph of the
“DISPOSITION” section is deleted, and the following is inserted in its place:
“On remand, the trial court is directed to vacate the judgment and enter a
separate judgment against Deputy Aviles and the County and a separate
judgment against Deputy Beserra and the County allocating noneconomic
damages to each defendant and the County in direct proportion to each
individual defendant’s percentage of fault, as found in the jury’s comparative
fault determinations.”
16. On page 65, the first sentence of the second paragraph of the
“DISPOSITION” section is deleted, and the following is inserted in its place:
“The order granting summary adjudication to Defendants on Cross-
Appellants’ Civil Code section 52.1 claims is reversed, and the matter is
remanded to the trial court for further proceedings consistent with the
principles expressed in this opinion.”
There is no change in the judgment.
________________________________________________________________________
EDMON, P. J. EGERTON, J. DHANIDINA, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
4
Filed 7/12/18 (unmodified opn. attached)
TO BE PUBLISHED IN THE OFFICIAL REPORTS
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
B.B., a Minor, etc., et al., B264946
Plaintiffs and Appellants, Los Angeles County
Super. Ct. Nos. TC027341,
v. TC027438, BC505918
COUNTY OF LOS ANGELES et al.,
ORDER MODIFYING OPINION
Defendants and Appellants. [NO CHANGE IN JUDGMENT]
T.E., a Minor, etc., et al.,
Plaintiffs and Appellants,
v.
COUNTY OF LOS ANGELES et al.,
Defendants and Appellants.
THE COURT:
It is ordered that the opinion filed herein on July 10, 2018, be modified
as follows: The caption is deleted and the below caption is inserted in its
place.
B.B., a Minor, etc., et al.,
Plaintiffs and Appellants,
v.
COUNTY OF LOS ANGELES et al.,
Defendants and Appellants.
T.E., a Minor, etc., et al.,
Plaintiffs and Appellants,
v.
COUNTY OF LOS ANGELES et al.,
Defendants and Appellants.
D.B., a Minor, etc., et al.,
Plaintiffs and Respondents,
v.
COUNTY OF LOS ANGELES et al.,
Defendants and Appellants.
There is no change in the judgment.
________________________________________________________________________
EGERTON, J. EDMON, P. J. DHANIDINA, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
2
Filed 7/10/18 (unmodified version)
CERTIFIED FOR PARTIAL PUBLICATION *
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
B.B., a Minor, etc., et al., B264946
Plaintiffs and Appellants, Los Angeles County
Super. Ct. Nos.
v. TC027341, TC027438,
BC505918
COUNTY OF LOS ANGELES et al.,
Defendants and Appellants.
D.B., etc., et al.,
Plaintiffs and Respondents,
v.
COUNTY OF LOS ANGELES et al.,
Defendants and Appellants.
APPEALS from a judgment and orders of the Superior
Court of Los Angeles County, Ross M. Klein, Judge. Affirmed in
part, reversed in part with directions.
* Under California Rules of Court, rules 8.1100 and 8.1110,
this opinion is certified for publication with the exception of parts
1 through 3 and subpart b of part 5 of the Discussion.
Pine Tillett Pine, Norman Pine, Stacy Freeman, and Scott
Tillett; The Sweeney Firm and John E. Sweeney; Orange Law
Offices and Olu K. Orange for Plaintiffs and Appellants B.B., a
Minor, etc., et al. and T.E., a Minor, etc., et al.
Douglas / Hicks Law and Carl E. Douglas; Antablin &
Bruce and Drew Antablin for Plaintiffs and Respondents D.B.,
etc., et al.
O’Melveny & Myers and Sabrina Heron Strong; Manning
& Kass, Ellrod, Ramirez, Trester, Eugene P. Ramirez, Louis W.
Pappas, Steven J. Renick, Julie M. Fleming, and Angela M.
Powell for Defendants and Appellants.
_________________________
INTRODUCTION
Darren Burley suffered brain death from lack of oxygen due
to a cardiac arrest following a prolonged and violent struggle
with several deputies of the Los Angeles County Sheriff’s
Department, who were called to arrest Burley after he assaulted
a woman while under the apparent influence of cocaine,
marijuana, and PCP. In a wrongful death action brought by
Burley’s estranged wife and five children (Plaintiffs) against the
deputies and the County of Los Angeles (collectively,
Defendants), a jury found Deputy David Aviles liable for
intentional battery by use of excessive force and Deputy Paul
Beserra liable for negligence resulting in Burley’s death. The
jury attributed 40 percent of the fault to Burley for his own
death, and found Deputies Aviles and Beserra each 20 percent at
fault, while allocating the remaining 20 percent of fault to the
other deputies. The jury awarded Plaintiffs $8 million in
noneconomic damages, and the trial court entered judgment
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against Aviles for the full amount of the award based on the
jury’s finding that he intentionally harmed Burley.
On appeal, Defendants argue (1) the evidence was
insufficient to support the jury’s causation findings; (2) multiple
irregularities and instances of misconduct by Plaintiffs’ attorneys
combined to deprive Defendants of a fair trial; (3) the trial court
improperly instructed the jury on damages and the evidence was
insufficient to support the damages award; and (4) the court
erred in holding Deputy Aviles liable for the full noneconomic
damages award despite the jury’s comparative fault allocation.
We agree with Defendants that Civil Code section 1431.2
mandates allocation of the noneconomic damages award in
proportion to each defendant’s comparative fault,
notwithstanding the jury’s finding of intentional misconduct.
Accordingly, we will direct the trial court to vacate the judgment
and enter separate judgments for each of Deputies Beserra and
Aviles, holding them liable for the noneconomic damages award
in an amount proportionate to the jury’s comparative fault
determinations. We find no reversible error on the other
grounds.
Plaintiffs filed a cross-appeal from the trial court’s order
granting Defendants summary adjudication on Plaintiffs’ claims
for civil rights violations under Civil Code section 51.2. One
plaintiff, T.E., also cross-appeals from the court’s order denying
her motion for private attorney general fees under Code of Civil
Procedure section 1021.5. We conclude the summary
adjudication order must be reversed because Plaintiffs presented
sufficient evidence to raise a triable issue as to whether the
deputies acted intentionally in interfering with Burley’s right to
3
be free from unreasonable seizure. We find no error in the court’s
order denying the motion for attorney fees.
FACTS AND PROCEDURAL BACKGROUND
In this section we give an overview of the facts necessary to
put the disputed issues in context. Additional facts relevant to
specific issues are discussed in later sections. Consistent with
our standard of review and the rules of appellate procedure, we
state the facts in the light most favorable to the judgment.
(Orthopedic Systems, Inc. v. Schlein (2011) 202 Cal. App. 4th 529,
532, fn. 1.)
On the evening of August 3, 2012, residents of a Compton,
California neighborhood heard frantic screams for help and saw a
man, later identified as the decedent, Darren Burley, straddling a
woman in the street. Two residents confronted Burley and
pushed him off the struggling woman, allowing her to flee.
Others called 911 to report the incident.
Deputies David Aviles and Steve Fernandez were the first
to arrive at the scene. As the deputies approached Burley, he
stood up, faced them, and, with a blank stare, began making
grunting sounds while moving toward them in slow, stiff,
exaggerated robotic movements, leading the deputies to conclude
that he might be under the influence of PCP. Aviles ordered
Burley to get on his knees facing away from the deputies. Burley
did not respond.
Suddenly, a distraught woman ran into the street, pointed
at Burley and yelled, “He tried to kill me!” Burley’s attention
turned to the woman, and as he moved to pursue her, Deputy
Fernandez “hockey checked” him, causing Burley to hit his head
on a parked truck before falling to the ground.
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After a struggle, the deputies maneuvered Burley to a
prone position, face-down on the concrete. Deputy Aviles then
mounted Burley’s upper back, while pinning Burley’s chest to the
ground with the maximum body weight he could apply. As
Deputy Fernandez knelt on Burley’s upper legs with all of his
weight, Aviles pressed his right knee down on the back of
Burley’s head, near the neck, and his left knee into the center of
Burley’s back. Burley struggled against the deputies, trying to
raise his chest from the ground.
Carl Boyer witnessed the altercation. He testified that one
of the deputies held Burley in some type of “head-lock” during
most of the struggle. Boyer also saw a deputy hit Burley in the
head several times with a flashlight. He said Burley appeared to
be gasping for air.
When Deputy Paul Beserra arrived, Burley was face-down
and Deputies Aviles and Fernandez were trying to restrain him.
Deputies Timothy Lee, Ernest Celaya, and William LeFevre
arrived soon after. Beserra attempted to restrain Burley’s left
arm, while Lee assisted on the right and Celaya held Burley’s
feet. Celaya and Lee tased Burley multiple times without
apparent effect. Eventually the deputies succeeded in
handcuffing Burley and hobbling his legs. Beserra estimated
three to four-and-a-half minutes passed between his arrival and
Burley’s handcuffing. Burley was prone on his stomach the
whole time, with Aviles on his back.
While the other deputies disengaged, Deputy Beserra
stayed with Burley. Approximately two minutes later, Beserra
heard Burley’s breathing become labored and felt his body go
limp. Beserra did not administer C.P.R.
5
When paramedics arrived, Captain Jason Henderson of the
Compton Fire Department found Burley still face-down on his
stomach, with Beserra pressing his knee into the small of
Burley’s back. Burley had no pulse. Paramedics immediately
began treating him with C.P.R., a bag-valve mask connected to
an oxygen tank, and an endotracheal tube. After five minutes,
they restored Burley’s pulse and transported him to the hospital.
Burley never regained consciousness and he died 10 days
later. The autopsy report listed the cause of death as brain death
and swelling from lack of oxygen following a cardiac arrest “due
to status post-restraint maneuvers or behavior associated with
cocaine, phencyclidine and cannabinoids intake.” The manner of
death was marked, “could not be determined.”
Three sets of plaintiffs filed lawsuits against the County
and deputies: (1) Burley’s estranged wife, Rhandi T., and their
two children; (2) Burley’s two children with Shanell S.; and
(3) Burley’s child with Akira E. The complaints asserted causes
of action for battery, negligence, and civil rights violations under
Civil Code section 52.1. Defendants moved for summary
adjudication of the civil rights claim. The court granted the
motion, and the consolidated cases proceeded to trial on the
battery and negligence claims against the County and Deputies
Aviles, Fernandez, Beserra, Celaya, Lee, and LeFevre.
After a several-weeks-long trial, the jury returned a verdict
finding Deputy Aviles liable for battery and Deputy Beserra
liable for negligence. The jury attributed 40 percent of the fault
to Burley for his own death, and found Aviles 20 percent at fault,
Beserra 20 percent at fault, and the remaining deputies 20
percent at fault. After hearing evidence on damages, the jury
6
awarded Plaintiffs $8 million in noneconomic damages for
Burley’s wrongful death.
Plaintiffs filed a proposed judgment, which Defendants
opposed on the ground that it failed to apportion damages for the
two liable deputies according to their percentages of fault. After
a hearing on apportionment, the court entered judgment against
Deputy Beserra and the County for $1.6 million (20 percent of the
damages award) and against Deputy Aviles and the County for
the full $8 million award.
Following the denial of Defendants’ post-trial motions,
Plaintiffs moved for attorney fees under Code of Civil Procedure
section 1021.5. The court denied the attorney fee motion. This
appeal and cross-appeal followed.
DISCUSSION
1. Substantial Evidence Supports the Jury’s Causation
Findings
Defendants contend the evidence was insufficient to
establish that Deputy Aviles’s unreasonable use of force and
Deputy Beserra’s negligence were substantial factors in causing
Burley’s death. They maintain Plaintiffs failed to offer competent
expert testimony proving, within a reasonable medical
probability, either that asphyxia caused Burley’s cardiac arrest,
or that the deputies’ actions fatally deprived Burley of oxygen.
We conclude the evidence was sufficient to support the jury’s
causation findings.
a. The substantial factor test for causation; legal
principles and standard of review
Whether a defendant’s conduct actually caused an injury is
a question of fact ordinarily reserved for the jury to decide.
(Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal. App. 4th 234,
7
252.) “California has definitively adopted the substantial factor
test of the Restatement Second of Torts for cause-in-fact
determinations.” (Rutherford v. Owens-Illinois, Inc. (1997) 16
Cal. 4th 953, 968 (Rutherford).) While it generally produces the
same results as the “but for” rule, our courts have embraced the
substantial factor standard as a “clearer rule of causation—one
which subsumes the ‘but for’ test while reaching beyond it to
satisfactorily address other situations, such as those involving
independent or concurrent causes in fact.” (Id. at pp. 968-969;
Mitchell v. Gonzales (1991) 54 Cal. 3d 1041, 1052-1053.)
“The substantial factor standard is a relatively broad one,
requiring only that the contribution of the individual cause be
more than negligible or theoretical.” (Rutherford, supra, 16
Cal.4th at p. 978.) Even “a very minor force” that causes harm is
considered a cause in fact of the injury. (Bockrath v. Aldrich
Chemical Co. (1999) 21 Cal. 4th 71, 79 (Bockrath).) Indeed, our
Supreme Court has cautioned that “[u]ndue emphasis should not
be placed on the term ‘substantial,’ ” observing that “the
substantial factor standard, formulated to aid plaintiffs as a
broader rule of causality than the ‘but for’ test, has been invoked
by defendants whose conduct is clearly a ‘but for’ cause of
plaintiff’s injury but is nevertheless urged as an insubstantial
contribution to the injury.” (Rutherford, at p. 969, italics added.)
“Misused in this way, the substantial factor test ‘undermines the
principles of comparative negligence, under which a party is
responsible for his or her share of negligence and the harm
caused thereby.’ ” (Ibid.; Bockrath, at p. 79.)
In cases requiring medical evidence to establish causation,
our courts have recognized that “causation must be proven within
a reasonable medical probability based upon competent expert
8
testimony. Mere possibility alone is insufficient to establish a
prima facie case.” (Jones v. Ortho Pharmaceutical Corp. (1985)
163 Cal. App. 3d 396, 402 (Jones); Rutherford, supra, 16 Cal.4th at
pp. 976-977 & fn. 11; Lineaweaver v. Plant Insulation Co. (1995)
31 Cal. App. 4th 1409, 1416 (Lineaweaver); Bromme v. Pavitt
(1992) 5 Cal. App. 4th 1487, 1498.) As the Jones court explained
in reviewing a judgment of nonsuit against a claim that the
defendants’ pharmaceutical product caused the plaintiff’s
cancerous condition, “[a]lthough juries are normally permitted to
decide issues of causation without guidance from experts, ‘the
unknown and mysterious etiology of cancer’ is beyond the
experience of laymen and can only be explained through expert
testimony. [Citation.] Such testimony . . . can enable a plaintiff’s
action to go to the jury only if it establishes a reasonably probable
causal connection between an act and a present injury.” (Jones,
at p. 403.) “A possible cause only becomes ‘probable’ when, in the
absence of other reasonable causal explanations, it becomes more
likely than not that the injury was a result of its action.” (Ibid.)
Critically, the standard articulated in Jones “do[es] not
require a heightened standard for causation.” (Uriell v. Regents
of University of California (2015) 234 Cal. App. 4th 735, 746
(Uriell).) Rather, as our Supreme Court explained in Rutherford
with respect to asbestos injury cases, “the reference to ‘medical
probability’ in the standard ‘is no more than a recognition that
asbestos injury cases (like medical malpractice cases) involve the
use of medical evidence.’ ” (Rutherford, supra, 16 Cal.4th at
p. 976, fn. 11; Lineaweaver, supra, 31 Cal.App.4th at p. 1416,
fn. 2; Uriell, at p. 746.) Thus, regardless of whether expert
medical testimony is required to assist the jury, the standard to
prove causation is the same: “ ‘ “ ‘[A plaintiff] is not required to
9
eliminate entirely all possibility that the defendant’s conduct was
not a cause. It is enough that he introduces evidence from which
reasonable [persons] may conclude that it is more probable that
the event was caused by the defendant than that it was
not. . . .’ ” ’ [Only] [i]f the evidence presented on causation leaves
the matter ‘ “ ‘one of pure speculation or conjecture, or the
probabilities are at best evenly balanced, [does] it become[ ] the
duty of the court to direct a verdict for the defendant.’ ” ’ ”
(Uriell, at pp. 745-746; Espinosa v. Little Co. of Mary Hospital
(1995) 31 Cal. App. 4th 1304, 1314 (Espinosa).)
Where the sufficiency of the evidence is challenged on
appeal, we review a jury’s causation finding under the familiar
substantial evidence standard of review. (Izell v. Union Carbide
Corp. (2014) 231 Cal. App. 4th 962, 969.) Under that standard,
“ ‘ “ ‘the power of an appellate court begins and ends with a
determination as to whether there is any substantial evidence,
contradicted or uncontradicted,’ to support the findings below.
[Citation.] We must therefore view the evidence in the light most
favorable to the prevailing party, giving it the benefit of every
reasonable inference and resolving all conflicts in its favor.” ’ ”
(Lenk v. Total-Western, Inc. (2001) 89 Cal. App. 4th 959, 968.) We
do not reweigh the evidence or evaluate the credibility of
witnesses. We must uphold the judgment if it is supported by
substantial evidence, even if substantial evidence to the contrary
also exists and the trier of fact could have reached a different
result if it had believed other evidence. (Howard v. Owens
Corning (1999) 72 Cal. App. 4th 621, 630-631.) Substantial
evidence is “evidence which is reasonable, credible, and of solid
value.” (Rivard v. Board of Pension Commissioners (1985) 164
Cal. App. 3d 405, 414.)
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With these principles in mind, we turn to the evidence
admitted at trial to support the jury’s causation findings.
b. The battery verdict against Deputy Aviles
The jury found Deputy Aviles used unreasonable force
against Burley based on evidence showing that Aviles restrained
Burley with his right knee on the back of Burley’s head and his
left knee in the center of Burley’s back, while applying as much of
his weight (approximately 225-230 pounds including equipment)
as he could to Burley’s back during their several-minutes-long
struggle. Lieutenant Roger Clark, a police procedures expert,
opined that Aviles’s use of force was unreasonable. He testified
Aviles should have recognized Burley was at greater risk of
becoming “oxygen-starved,” due in part to Burley’s evident drug
intoxication, and that Aviles should have accounted for Burley’s
increased need for oxygen during their struggle. Clark testified it
would be dangerous and unreasonable to put significant weight
on an arrestee’s back under such circumstances, emphasizing
that deputies are trained to avoid positions that could restrict
chest and diaphragm movements necessary for breathing.1
1 There also was evidence that Deputy Aviles held Burley in
a “head-lock” for much of their struggle, during which time
Burley appeared to be gasping for air. Plaintiffs’ expert, Dr. Alon
Steinberg, testified that an improperly applied chokehold would
have intensified the risk of asphyxia by increasing Burley’s
adrenaline, restricting his airway, and decreasing his blood
pressure and heart rate. But Dr. Steinberg also confirmed that,
even absent the chokehold, fatal asphyxia was still probable due
to Aviles’s restriction of Burley’s diaphragm movement. Because
the evidence regarding restraint asphyxia was sufficient to
support the battery verdict, we need not address whether
11
Plaintiffs’ medical expert, Dr. Alon Steinberg, a board
certified cardiologist, opined that Burley suffered cardiac arrest,
ultimately resulting in brain damage and death, because there
was “not enough oxygen getting to [his] heart,” due to “restraint
asphyxia.”2 Dr. Steinberg explained that in the course of Burley’s
taxing struggle with the deputies, he would have required
“maximum” oxygen intake, circulating rapidly around his body,
for his muscles—including, his heart—to function. He testified
that placing someone in Burley’s condition “on [his] stomach and
in a prone position on [his] chest” can “restrict breathing” and
cause “positional asphyxia.” Bearing weight down on the upper
or midback of such a person, thereby “keeping” the person “in a
position [where he is] having difficulty breathing,” intensifies the
danger and constitutes “restraint asphyxia.” Restraint asphyxia
can result in cardiac arrest, as Dr. Steinberg explained: “If
someone is pressing on your back, you can’t move [the] chest out
because you have . . . a lot of weight on your chest and you can’t
breathe out[;] so someone who is extremely dependent on oxygen
may not be getting enough oxygen to his lungs, to his blood
system[,] and his heart . . . can stop.”
Dr. Steinberg also explained that when the body cannot get
enough oxygen, it turns to other mechanisms to power its
Plaintiffs’ secondary theory—that Aviles used an improper
carotid hold on Burley—also supported the verdict.
2 It was undisputed that Burley died as a consequence of
brain damage stemming from cardiac arrest, as Defendants’
medical expert, Dr. Michael Chaikin, and the deputy medical
examiner who performed Burley’s autopsy, Dr. Ajay Panchal,
both confirmed.
12
systems. With continued exertion, such as Burley’s protracted
struggle to get up from a restrained prone position, these other
mechanisms can cause the body to become “acidotic,” meaning
“he was starting to form a lot of acid in his muscles.” Dr.
Steinberg testified that the combination of acidosis, and not
enough oxygen getting to Burley’s heart, caused Burley to
“flatline” and suffer “cardiac death.” Dr. Steinberg added that his
opinion—that Burley’s heart stopped due to asphyxiation—was
supported by the fact that Burley’s heart was revived by
paramedics “getting oxygen into his system and doing C.P.R.,
chest compressions.”
Defendants argue the foregoing evidence was insufficient to
establish either that asphyxiation caused Burley’s heart to
arrest, or that Burley suffered asphyxiation as a result of Deputy
Aviles’s unreasonable use of force. With respect to the first
contention, Defendants seize on Dr. Steinberg’s reference to the
paramedics’ use of oxygen to revive Burley, arguing, “[t]hat
Burley’s heart started beating again after he received oxygen . . .
does not by itself prove that the heart stopped from lack of
oxygen, given the myriad potential causes of cardiac arrest.” As
we have explained, Plaintiffs were not required conclusively to
rule out all other possible causes of Burley’s cardiac arrest; they
needed to show only that asphyxiation was more likely than not a
substantial contributing factor in causing his fatal condition.
(Uriell, supra, 234 Cal.App.4th at pp. 745-746; Espinosa, supra,
31 Cal.App.4th at p. 1314; see also Nelson v. County of Los
Angeles (2003) 113 Cal. App. 4th 783, 791-792 & fn. 7 (Nelson)
[rejecting argument that expert’s testimony regarding positional
asphyxia was insufficient to establish causation where other
factors might have contributed to detainee’s sudden death].)
13
Apart from highlighting the apparent effect oxygen had in
reviving Burley’s heart, Dr. Steinberg testified that the
deprivation of oxygen, coupled with acid building up in Burley’s
muscles during the struggle, caused Burley’s heart to “flatline.”
Although he acknowledged the presence of drugs in Burley’s
system probably “played some role,” Dr. Steinberg stated the
“main” cause of Burley’s cardiac arrest was “the fight and the
restraint asphyxia.” This was sufficient to support the jury’s
implicit finding that asphyxiation caused Burley’s heart to arrest.
(See Espinosa, supra, 31 Cal.App.4th at p. 1317 [medical expert’s
opinion sufficient to send causation question to jury, even where
he conceded conditions not attributable to defendants’ conduct
contributed to plaintiff’s injury].)
Dr. Steinberg’s testimony regarding the mechanics of
restraint asphyxia, coupled with Deputy Aviles’s admission that
he pinned Burley down in a prone position, applying as much
weight as he could to the upper and middle parts of Burley’s
back, was likewise sufficient to support the finding that Aviles’s
unreasonable use of force caused Burley to asphyxiate.
Defendants challenge the evidentiary basis for Dr. Steinberg’s
opinion, arguing the doctor “did not review the deputies’ accounts
of the incident before reaching his conclusion.” But this
argument ignores the settled principle that experts may
formulate opinions based upon assumed facts, so long as those
facts have evidentiary support. (See People v. Vang (2011) 52
Cal. 4th 1038, 1045-1046; Hyatt v. Sierra Boat Co. (1978) 79
Cal. App. 3d 325, 339.) At trial, Dr. Steinberg affirmed in
response to a hypothetical posed by Plaintiffs’ counsel that it was
“probable that[,] after [Burley’s] high level of exertion, the
compression and restriction of the accessory muscles, diaphragm
14
and other things in the abdominal cavity could cause his death.”
(Italics added.) Viewing the evidence in the light most favorable
to the jury’s finding, those assumed facts were consistent with
Deputy Aviles’s account of his and Burley’s positions during the
struggle.3 (See Vang, at pp. 1049-1050 [it is the jury’s role to
“determine whether the facts stated in the hypothetical questions
are the actual facts, and the significance of any difference
between the actual facts and the facts stated in the questions”].)
Dr. Steinberg’s testimony was sufficient to support the jury’s
finding that Deputy Aviles’s unreasonable use of force, more
likely than not, was a substantial factor in causing Burley’s
asphyxiation and ultimate death.
c. The negligence verdict against Deputy Beserra
The jury found Deputy Beserra acted negligently based on
evidence showing Beserra left Burley face-down on his stomach,
with his hands cuffed behind his back and his legs hobbled, after
Burley had ceased struggling with the deputies. Beserra
admitted he heard Burley’s breathing become shallow, he felt
Burley’s body go limp, and he perceived Burley to be in “acute
distress.” Beserra did not administer C.P.R. to Burley. When
paramedics arrived, approximately two minutes after Burley
stopped struggling, Captain Henderson of the Compton Fire
Department testified he found Burley still face-down on his
3 At trial, Deputy Aviles also reenacted his positioning
relative to Burley during the struggle. With defense counsel
(substituting for Burley) lying with his chest and stomach on the
courtroom floor, Aviles demonstrated how he mounted Burley’s
back with “his right knee . . . on the back of [defense counsel’s]
head near his back neck” and his left knee “in the center of
[defense counsel’s] back” at “the top of his diaphragm.”
15
stomach and handcuffed, with Beserra pressing his knee into the
small of Burley’s back. After asking Beserra to get off Burley and
uncuff him, Henderson turned Burley over, discovered he had no
pulse, and began administering medical treatment. Lieutenant
Clark testified that leaving Burley prone on his stomach was
contrary to Beserra’s training regarding positional asphyxia.
Clark also said Beserra had a duty under the Peace Officer
Standards and Training rules to render medical care to Burley
once he was handcuffed and no longer struggling.4
Defendants contend the evidence was insufficient to
support the jury’s finding that Deputy Beserra’s negligence
caused Burley’s death, because “no medical expert testified that it
was a substantial factor.” But this argument ignores Dr.
Steinberg’s testimony regarding positional asphyxiation, which
established that leaving someone in Burley’s condition “on [his]
stomach and in a prone position on [his] chest,” can “restrict
breathing” and cause “asphyxia.” Indeed, Defendants’ medical
expert attempted to rule out positional asphyxia, but his opinion
relied upon the assumption that once Burley was handcuffed and
hobbled, Beserra rolled Burley on his side, as Beserra’s training
dictated. That assumption was negated by Captain Henderson’s
account, which the jury presumably credited, that Beserra left
Burley in the prone position with his knee in Burley’s back.
Finally, as discussed, Dr. Steinberg testified that asphyxia was a
probable cause of Burley’s cardiac arrest, given the mechanics of
acidosis, and because Burley’s heartbeat was restored once
paramedics rendered C.P.R. and administered oxygen. Based on
4 All California law enforcement officers are required to
learn and follow the Peace Officer Standards and Training rules.
16
this evidence, the jury could reasonably conclude that Beserra’s
negligent conduct was a substantial contributing factor in
causing Burley’s death.
2. Purported “Irregularities” in the Proceedings Did Not
Deny Defendants a Fair Trial
Defendants contend a series of “irregularities in the
proceedings” had the “ ‘cumulative effect’ ” of prejudicing the
trial’s outcome, such that the judgment must be reversed and a
new trial ordered. They point to a purported “pattern” of
“prejudicial behavior” in which “Plaintiffs’ counsel (a) willfully
disregarded the court’s orders about what could be introduced in
opening statements; (b) encouraged the jury in closing argument
to weigh public opinion on volatile social issues; (c) exploited an
erroneous ruling that permitted Plaintiffs to insinuate, without
evidence, that Deputy Aviles belonged to a violent deputy ‘gang’;
and (d) made improper contact with a juror during deliberations.”
However, our review of the record reveals that in most cases
Defendants either failed to raise a proper objection to the alleged
misconduct or failed to press for a curative admonition. With
respect to the court’s evidentiary ruling regarding a purported
“deputy ‘gang,’ ” we find the court reasonably exercised its
discretion. And, as for the one inexcusable instance of
misconduct—Plaintiffs’ counsel’s apparent attempt to curry favor
with a juror by attending the juror’s musical performance during
deliberations—we agree with the trial court’s conclusion that no
prejudice resulted from the incident.
a. Legal principles and standard of review
“The law, like boxing, prohibits hitting below the belt. The
basic rule forbids an attorney to pander to the prejudice, passion
or sympathy of the jury.” (Martinez v. Department of
17
Transportation (2015) 238 Cal. App. 4th 559, 566 (Martinez).)
Nonetheless, “[i]n conducting closing argument, attorneys for
both sides have wide latitude to discuss the case.” (Cassim v.
Allstate Ins. Co. (2004) 33 Cal. 4th 780, 795 (Cassim).) “ ‘ “ ‘The
argument may be vigorous as long as it amounts to fair comment
on the evidence, which can include reasonable inferences, or
deductions to be drawn therefrom.’ ” ’ ” (People v. Stanley (2006)
39 Cal. 4th 913, 951-952.) The same rules generally apply to the
cross-examination of witnesses. (See McDonald v. Price (1947)
80 Cal. App. 2d 150, 152 [“While a wide latitude should be given in
cross-examinations, counsel in putting questions to the witness
should not be allowed to assume facts not in evidence and . . . of
such a nature as to inflame and prejudice the minds of the
jurors.”].)
“An attorney who exceeds this wide latitude commits
misconduct. For example, ‘[w]hile a counsel in summing up may
indulge in all fair arguments in favor of his client’s case, he may
not assume facts not in evidence or invite the jury to speculate as
to unsupported inferences.’ ” (Cassim, supra, 33 Cal.4th at
p. 796.) Nor may an attorney make arguments by innuendo in a
manner calculated to inflame the passions, prejudices, or
sympathies of the jury. (See, e.g., Stone v. Foster (1980) 106
Cal. App. 3d 334, 353-356 [plaintiff’s counsel insinuated defendant
doctor was part of “ ‘conspiracy of silence’ ” by medical industry];
Dastagir v. Dastagir (1952) 109 Cal. App. 2d 809, 821-822 [in
paternity case, defense counsel made repeated unsupported
suggestions that plaintiff’s mother had illicit relations with other
men].) And, while “[c]ounsel may refer the jury to nonevidentiary
matters of common knowledge, or to illustrations drawn from
common experience, history, or literature [citation], . . . he may
18
not dwell on the particular facts of unrelated, unsubstantiated
cases.” (People v. Mendoza (1974) 37 Cal. App. 3d 717, 725.)
“ ‘Generally, to preserve for appeal an instance of
misconduct of counsel in the presence of the jury, an objection
must have been lodged at trial.’ [Citation.] In addition to
objecting, a litigant faced with opposing counsel’s misconduct
must also ‘move for a mistrial or seek a curative admonition’
[citation] unless the misconduct is so persistent that an
admonition would be inadequate to cure the resulting prejudice
[citation]. This is so because ‘[o]ne of the primary purposes of
admonition at the beginning of an improper course of argument is
to avoid repetition of the remarks and thus obviate the necessity
of a new trial.’ ” (Cassim, supra, 33 Cal.4th at pp. 794-795.)
It is not enough for an appealing party to show attorney
misconduct. “In order to justify a new trial, the party must
demonstrate that the misconduct was prejudicial.” (Garcia v.
ConMed Corp. (2012) 204 Cal. App. 4th 144, 149; Cassim, supra,
33 Cal.4th at p. 800.) As to this issue, the reviewing court makes
“an independent determination as to whether the error was
prejudicial.” (City of Los Angeles v. Decker (1977) 18 Cal. 3d 860,
872.) We “must determine whether it is reasonably probable
[that the appellant] would have achieved a more favorable result
in the absence of that portion of [attorney conduct] now
challenged.” (Cassim, at p. 802.) We must examine “the entire
case, including the evidence adduced, the instructions delivered
to the jury, and the entirety of [counsel’s] argument,” to
determine whether misconduct occurred and whether it was
sufficiently egregious to cause prejudice. (Ibid.; Garcia, at
p. 149.) “Each case must ultimately rest upon a court’s view of
the overall record, taking into account such factors, inter alia, as
19
the nature and seriousness of the remarks and misconduct, the
general atmosphere, including the judge’s control, of the trial, the
likelihood of prejudicing the jury, and the efficacy of objection or
admonition under all the circumstances.” (Sabella v. Southern
Pacific Company (1969) 70 Cal. 2d 311, 320-321 (Sabella), fn.
omitted; Garcia, at p. 149; Martinez, supra, 238 Cal.App.4th at
p. 568.) “[I]t is only the record as a whole, and not specific
phrases out of context, that can reveal the nature and effect of
such tactics.” (Sabella, at p. 318.)
b. References to alleged prior incidents of unreasonable
force in opening statement
Before trial commenced, Defendants moved in limine to
exclude all references to prior citizen complaints against the
deputy defendants. After discussing Plaintiffs’ ongoing efforts to
interview potential witnesses, the court stated it would “hold this
in abeyance” until Plaintiffs had identified the relevant
witnesses, at which time the court would “revisit” the motion to
weigh the probative value of the witnesses’ testimony against any
claimed prejudice. When Plaintiffs’ counsel inquired about
whether he was precluded from mentioning prior citizen
complaints in his opening statement, the court responded, “Can’t
do it unless we know who -- what witnesses.”
Despite the court’s instruction, and without giving the
court and defense counsel an opportunity to “revisit” the issue,
Plaintiffs’ counsel announced to the jury in his opening statement
that “[y]ou will hear from witnesses that Mr. Aviles used
unreasonable unnecessary force against [them].” Counsel then
20
detailed what the two proposed witnesses—Jeffrey Davis and
Bobby Willis—would testify about the alleged incidents.5
After Plaintiffs’ opening statements, defense counsel
objected that the references to “Mr. Jeffrey Davis and Bobby
Willis” violated the court’s in limine order. The court agreed, and
offered to give a limiting instruction to cure the potential
prejudice. Critically, however, after the court invited Defendants
to prepare the instruction, defense counsel declined to do so. The
failure to press for a corrective admonition forfeits the issue for
appeal. (Cassim, supra, 33 Cal.4th at pp. 794-795.)
Defendants argue there was no forfeiture because, in
making the offer to give a limiting instruction, the court observed
that the objectionable references were “lost in the totality of
openings, and [Defendants] run the genuine risk of emphasizing
it if I emphasize it.” Defendants maintain pressing for an
admonition was unnecessary to preserve the issue, as the court’s
statement showed a limiting instruction would not have
“ ‘removed the effect’ of the misconduct.” (See Sabella, supra, 70
Cal.2d at p. 318 [“ ‘alleged misconduct will not be considered on
appeal, if an admonition to the jury would remove the effect’ ”].)
We disagree.
Far from suggesting the “misconduct [was] so persistent
that an admonition would be inadequate to cure the resulting
prejudice” (Cassim, supra, 33 Cal.4th at pp. 794-795), the court
apparently found the offending references to be so
inconsequential and fleeting as to have been “lost in the totality
5 Ultimately, neither witness testified. The court excluded
Davis’s testimony under Evidence Code section 352, and
Plaintiffs elected not to call Willis.
21
of openings.” Of course, Defendants were entitled to disagree
with the court’s assessment, but then it was their duty to press
for a curative admonition to address the perceived prejudice.
Their failure to do so forfeits the issue for appeal. (Ibid.)
c. Questions regarding a purported “deputy gang”
Before trial, Defendants moved in limine to exclude
references to alleged membership in “ ‘deputy gangs.’ ” The
motion argued these purported groups had received “[n]egative
publicity” in the media, and that evidence of the deputies’
affiliation with them would constitute irrelevant and highly
prejudicial character evidence under Evidence Code section 1101,
subdivision (a).6
At a hearing on the motion, Plaintiffs asserted that Deputy
Aviles had admitted in deposition testimony that he belonged to
the so-called “3000 boys” and that he “was the subject of 19
separate use of force incident reports over a period of three-and-
a-half to four years, while he was serving in the county jail on the
3000 floor.” They maintained “[a] majority of those incidents
involved reports of him brutalizing persons in his custody for no
reason, which is consistent with the practice of the 3000 boys,” as
had been reported by the Los Angeles Times in an investigation
published in 2012. Plaintiffs argued the evidence was admissible
to impeach Aviles’s anticipated claim that he used reasonable
force in restraining Burley.
6 As an example of the negative media attention, the motion
referenced a 2013 Los Angeles Times article about a “secret law
enforcement group called ‘The Jump Out Boys’ that allegedly
celebrated shootings and branded members with matching
tattoos.”
22
The trial court agreed with Plaintiffs, ruling: “I’m going
to . . . allow . . . questioning as to whether there was [a] formal or
informal comradeship association of the deputies on the 3000
floor. [¶] I think it’s directly relevant to address Deputy Aviles’[s]
expected testimony that whatever force he applied was
reasonable and necessary . . . . [¶] . . . [¶] If [Aviles] does in fact
deny [the association] . . . , Plaintiffs may well fall flat on their
evidentiary face, if they can’t prove it.” Insofar as the court
denied the motion in limine on the ground that the evidence of
prior acts would be relevant to impeach Deputy Aviles’s claim
that he used reasonable force in response to Burley’s resistance,
we find no abuse of discretion. (See Bender v. County of Los
Angeles (2013) 217 Cal. App. 4th 968, 983 [evidence of prior
excessive force claims admissible to impeach defendant deputy’s
testimony that he “used measured responses to gain control of
[plaintiff]”; observing, “[Evidence Code] section 1101 does not
affect ‘the admissibility of evidence offered to support or attack
the credibility of a witness’ ”].)
Nonetheless, Defendants argue the “tactics permitted by
the court were highly prejudicial,” because “the jury heard
opening statements and repeated questions about Deputy Aviles’s
purported membership in a deputy ‘gang’ at the Los Angeles
County Jail.” They argue “references to gang membership are
especially prejudicial,” observing that in the “criminal context,
gang evidence ‘should not be admitted if its probative value is
minimal. . . . [and] trial courts should carefully scrutinize such
evidence before admitting it.’ ” Here, however, though the court
permitted limited inquiry about Aviles’s association with
deputies on the 3000 floor, the court sustained Defendants’
objections to questions referencing “gangs” and other
23
inflammatory terminology. The following testimony, excerpted
by Defendants in their opening brief, is representative:
“[Plaintiffs’ Counsel:] You have heard
that there is a gang of deputies on the 3000
floor who brutalize suspects, or brutalize
person[s] in their custodies; you’ve heard that,
right?
“[Defendants’ Counsel]: Objection.
Relevance.
“The Court: Sustained. Argumentative,
as [to] some of the words that you used.
“[Plaintiffs’ Counsel:] You’ve heard
that there’s a group of deputies that work the
3000 floor that use excessive force on persons in
their custody?
“[Defendants’ Counsel]: Objection.
Assumes facts not in evidence.
“The Court: I’ll allow that. He cleaned
up the two words that were argumentative.
Overruled.
“Go ahead, sir.
“[Deputy Aviles]: According to the
media.”
The jury was instructed that what the attorneys say during
trial—in their opening statements, closing arguments, and
questions—“is not evidence,” and the jury “should not think that
something is true just because an attorney’s question suggested it
was true.” Still, Defendants maintain that, “[a]lthough the court
sustained some objections to Plaintiffs’ counsel’s persistent use of
gang terminology, the suggestion that Deputy Aviles belonged to
24
a violent ‘gang’ remained.” In view of our presumption that the
jury follows its instructions (Cassim, supra, 33 Cal.4th at pp. 803-
804), we find no merit in this claim. In any event, if Defendants
were concerned that the “suggestion” of gang membership
“remained,” it was their obligation to request an admonition after
the trial court sustained their objections to the gang terminology.
(See id. at pp. 794-795.) Their failure to do so forfeits the issue.
d. References to outside current events in closing
argument
This case came to trial in the wake of the widely publicized
deaths of Michael Brown and Eric Garner, two unarmed black
men who were killed in incidents with police. Defendants argue
the trial court permitted Plaintiffs’ counsel to exploit those
incidents in their closing arguments, thus supplanting the actual
evidence in this case and encouraging the jury to make liability
findings on an improper basis. They maintain the purported
improper arguments were made “[o]ver Defendants’ objections.”
The record refutes this fundamental premise of Defendants’
argument.
Following the decisions by grand juries in New York and
Missouri not to indict the police officers involved in the deaths of
Eric Garner and Michael Brown, Plaintiffs’ attorney notified the
court and defense counsel of his intention to make “fair comment”
on the Garner and Brown matters in connection with discussing
issues related to “the public’s confidence in law enforcement” that
he characterized as “rife in this case.” Without specifying
grounds for objection, Defendants’ counsel responded, “I hope
when [Plaintiffs’ counsel] says fair comment that he’s not going
[to] make reference, as he did earlier in this case when he
mentioned the Ferguson, Missouri, incident[,] that he’s not going
25
to go anywhere near any of these incidents for the remainder of
this case.” At that point, the trial court stated its understanding
that Plaintiffs’ counsel meant only to refer to the matters in “his
closing argument” and observed that reference to current events,
in that context, would be “fair game.” When Plaintiffs’ counsel
confirmed that limitation, Defendants’ counsel made no objection;
he did not object that such references would be improper even in
closing argument, and he did not dispute the court’s suggestion
that references to current events in closing argument would be
“fair game.”
Defendants’ counsel returned to the Garner and Brown
matters later in the proceeding, but this time counsel indicated
Defendants objected to references only in the evidentiary phase of
the trial—not in closing argument. Shortly after the initial
exchange, counsel declared, “I am concerned that even though
[Plaintiffs’ counsel] stated that he only intends to approach the
Eric Garner incident in his closing argument, I’m concerned there
could be reference to it in his direct examination” of Plaintiffs’
witnesses. Plaintiffs’ counsel confirmed there would be no such
references, and the court admonished Plaintiffs not to raise the
Garner and Brown matters during the evidentiary phase. During
closing arguments, when Plaintiffs’ counsel quoted Garner’s well-
known protest, “I can’t breathe,” and later argued, in apparent
reference to Brown’s death, “We can’t wait on Missouri to get
their acts together,” Defendants did not object.
As discussed, a charge of misconduct by opposing counsel is
not preserved for appeal unless the record shows the appellant
made a timely and specific objection. (Cassim, supra, 33 Cal.4th
at pp. 794-795; Rayii v. Gatica (2013) 218 Cal. App. 4th 1402, 1412
(Rayii); People v. Pitts (1990) 223 Cal. App. 3d 606, 691-692.) The
26
purpose of this requirement is to “allow the trial court an
opportunity to remedy the misconduct and avoid the necessity of
a retrial.” (Rayii, at p. 1412; Cassim, at pp. 794-795.)
Defendants insist they did not forfeit the claim of
misconduct, citing People v. Antick (1975) 15 Cal. 3d 79, 95
(Antick) for the proposition that “ ‘[w]here a party has once
formally taken exception to a certain line or character of
evidence, he is not required to renew the objection at each
recurrence thereafter of the objectionable matter’ ” to preserve
the issue for appellate review. The principle is inapposite to this
case.
In Antick, the Supreme Court found that, contrary to the
People’s assertion on appeal, “defense counsel did object” to the
introduction of other-crimes evidence, and, in a subsequent
hearing outside the jury’s presence, “made . . . arguments on its
admissibility” before the trial court overruled a “reasserted”
objection to introduction of the evidence through an additional
witness. (Antick, supra, 15 Cal.3d at p. 95.) Here, in contrast,
the record shows Defendants’ counsel made no argument as to
why he disagreed with Plaintiffs’ request to make “fair comment”
on matters of common knowledge, and, critically, counsel stated
no specific ground for his “hope” that Plaintiffs’ counsel would not
“go anywhere near any of these incidents for the remainder of
this case.” Moreover, counsel’s silence when the trial court
clarified that Plaintiffs intended to reference the incidents only in
their closing argument strongly indicated Defendants acquiesced
to the limitation. Indeed, this acquiescence was all but confirmed
when counsel later voiced concern, not that Plaintiffs would
discuss the Brown and Garner incidents in closing arguments,
but that they might reference the incidents in direct examination
27
of witnesses. When the trial court confirmed that examination on
those matters would not be permitted, Defendants made no
further objection or request for admonition.
On this record, the trial court had no reason to know
Defendants objected to the limitation imposed by its ruling, and
the court had no opportunity to prevent or correct the purported
misconduct that Defendants assert now on appeal. We conclude
Defendants forfeited the issue by failing to make a specific
objection. (See JRS Products, Inc. v. Matsushita Electric Corp. of
America (2004) 115 Cal. App. 4th 168, 178 [“[F]airness is at the
heart of a waiver claim. Appellate courts are loath to reverse a
judgment on grounds that the opposing party did not have an
opportunity to argue and the trial court did not have an
opportunity to consider.”]; Rayii, supra, 218 Cal.App.4th at
p. 1412.)
e. Plaintiffs’ counsel’s improper attempt to curry favor
with a juror
We now address a deeply troubling incident that all parties
agree was, at a minimum, an act of exceedingly “bad judgment”
by one of Plaintiffs’ attorneys, Carl Douglas.7
During jury deliberations, and before the court recessed for
12 days on December 17, 2014, a juror mentioned in court that
his musical group would be performing in San Pedro on
December 19. Apparently suspicious of the potential for
misconduct, Defendants hired an investigator, who observed
attorney Douglas at the juror’s performance. When court
7 The trial court found that the attorneys for all other
Plaintiffs “did not know of, plan, encourage or in any way
condone Mr. Douglas’[s] actions.”
28
resumed on December 29, Defendants reported these
developments and moved to recuse the juror. The trial court took
evidence from the investigator, including photographs and video
from the night of the performance, and the court and defense
counsel questioned the juror.
The investigator testified there were slightly more than one
hundred attendees at the performance, including Douglas and his
female companion, who were seated at a table one row back from
the front with four other attendees. Although the performance
took place in a relatively intimate banquet hall, in which the
juror, as lead singer of the musical group, moved freely around
the room interacting with guests, the investigator reported that
he never saw the juror and Douglas interact with each other
during the 45-minute performance. The juror also did not appear
to acknowledge Douglas or any of the attendees seated at his
table during the performance. None of the pictures or video
produced by the investigator captured Douglas and the juror in
the same frame.
The juror said he did not remember seeing anyone involved
in the trial (witnesses, attorneys, parties, fellow jurors) at the
performance. He did not discuss the performance with his fellow
jurors, other than to tell them it went “great.” When asked
directly by Defendants’ counsel if he had seen Douglas at the
performance, the juror responded, “Not that I recall, no.” The
court reassured the juror that he had done “absolutely nothing
wrong,” and that the attorneys would explain everything after
the trial was over.
The trial court denied Defendants’ motion to recuse the
juror. The court found Douglas’s conduct, “at the very minimum,”
was an act of “bad judgment,” but that it did not affect the
29
deliberations or prejudice the case. The court explained:
“[L]ooking at and talking to [the juror], . . . I find him to be
credible, sincere, personable. He didn’t hesitate in answering any
questions from anybody. [¶] I find factually there was no contact
either directly or indirectly between Mr. Douglas and [the juror].
[¶] I accept and believe [the juror] when he said that he did not
see Mr. Douglas. He said nothing to the fellow jurors about the
evening other than he performed and it went well.” The court
added, “I’ve seen nothing [i]n the photographs or videos that
would contradict my findings.” Thus the court concluded, “there
was no prejudice at all to this case” and “[i]t had no effect on the
deliberations.”
After Defendants moved for a new trial and submitted a
declaration from the event organizer suggesting that Douglas
might have sat with the juror’s family during the performance,
the court held another evidentiary hearing. The evidence at the
hearing showed Douglas was aware the juror would be
performing when he purchased his ticket, and that he sat at the
same table where the juror’s sister-in-law was seated. Douglas
testified that he attended the event at the request of his female
companion, whose friend was a member of the juror’s musical
group, and he chose his seat when he arrived, unaware that the
juror’s sister-in-law was seated at the same table.
The trial court denied Defendants’ new trial motion.
Although the court determined Douglas’s conduct was
“inexcusable, short-sighted and displayed a gross lapse of
judgment,” it found again that “[the juror was] credible when he
said he never saw Mr. Douglas and that there was no
communication between them.” Relying upon In re Price (2011)
51 Cal. 4th 547 (Price), the court concluded, “There was no
30
communication; neither the juror nor the jury were tainted.” In
view of the court’s finding, and the substantial evidence that
supported it, we agree with the trial court’s conclusion that the
jury was not tainted and no prejudice resulted from Douglas’s
misconduct.
Price is controlling. In Price, our Supreme Court
considered whether a prosecutor’s contact with a juror during the
guilt phase of a capital murder case deprived the defendant of a
fair trial. (Price, supra, 51 Cal.4th at p. 549.) A referee
appointed to conduct an evidentiary hearing on disputed
questions of fact raised by the defendant’s petition for habeas
corpus found: (1) the prosecutor patronized a café where the
juror was working during the guilt phase of the defendant’s trial;
(2) when the juror presented the prosecutor with a menu, the
prosecutor recognized the juror, held up his hands, and said he
could not have any contact with her; (3) when the prosecutor
finished dining, he paid the bill and included a tip, telling the
bartender, “in a joking tone of voice, to ‘give this’ or ‘split this’
with [the juror] and ‘tell her to vote guilty’ ”; and (4)
notwithstanding conflicting reports, the bartender understood the
comment as a joke and did not convey any message from the
prosecutor to the juror. (Id. at pp. 549-551.) Deferring to the
referee’s credibility determinations, the Supreme Court
concluded the referee’s critical finding—that the bartender had
not communicated the prosecutor’s “joke” to the juror—was
supported by the evidence. (Id. at p. 561.) In view of that
finding, the court held the brief contact between the prosecutor
and juror “did not include any communication of significance,”
and, as “the only proven juror contact was not improper, there
was no obligation to report it to the judge presiding at [the
31
defendant’s] trial.” (Id. at p. 562.) Thus, the Supreme Court held
the defendant failed to establish the trial was tainted by the
incident. (Id. at p. 563.)
Here, although Douglas’s conduct was clearly improper, the
trial court found, consistent with the evidence and its credibility
determinations, that there was no contact between Douglas and
the juror. In view of that finding, Price compels the conclusion
that the trial was not tainted and that Douglas’s misconduct did
not result in any prejudice to Defendants. (See Price, supra, 51
Cal.4th at p. 560 [“ ‘the touchstone of due process analysis in
cases of alleged prosecutorial misconduct is the fairness of the
trial, not the culpability of the prosecutor’ ”].)
Defendants contend the trial court’s finding is not
conclusive, because even if the juror had no contact with Douglas,
he still “surely knew Mr. Douglas had attended once he was
questioned about it.” Thus, Defendants maintain “[t]he potential
for [the juror] to appreciate Mr. Douglas’s attendance and resent
defense counsel’s inquiries sharply distinguishes this episode
from [Price].” We agree with Plaintiffs that this circular
argument proves too much. By Defendants’ logic, the fact of
misconduct alone would compel reversal, because any inquiry
into whether an attorney actually succeeded in currying favor
with a juror would itself create “at least unconscious bias” and
“actual prejudice.” That reasoning cannot be squared with the
Supreme Court’s prejudice analysis in Price. (Price, supra, 51
Cal.4th at pp. 560-563.)
3. The Jury Was Properly Instructed and Substantial
Evidence Supports the Damages Award
Defendants maintain they are entitled to a new trial on
damages because (1) the trial court misstated the law to the jury
32
regarding the evidence it could consider in determining the
appropriate amount of noneconomic damages; and (2) the award
is excessive and not supported by substantial evidence. Neither
contention has merit.
a. Instruction regarding noneconomic damages
Before closing arguments, the court instructed the jury as
follows regarding the assessment of noneconomic damages:
“Plaintiffs claim the following noneconomic damages: [¶] The loss
of Darren Burley’s love, companionship, comfort, care, assistance,
protection, affection, society, moral support. [¶] No fixed standard
exists for deciding the amount of noneconomic damages. You
must use your judgment to decide a reasonable amount based on
the evidence and your common sense. . . . [¶] In determining
Plaintiffs’ loss, do not consider: [¶] 1. Plaintiffs’ grief, sorrow, or
mental anguish; [¶] 2. Darren Burley’s pain and suffering; or [¶]
3. The poverty or wealth of Plaintiffs. [¶] In deciding a person’s
life expectancy, you may consider, among other factors, the
average life expectancy of a person of that age, as well as that
person’s health, habits, activities, lifestyle, and occupation.”
Defendants do not quarrel with the foregoing instruction.
Instead, they argue the trial court erred by supposedly giving a
new instruction, during Plaintiffs’ closing argument, that
“foreclosed the jury’s consideration of a considerable body of
relevant evidence” in assessing noneconomic damages.
Defendants base their contention on the following exchange,
which both parties agree is missing a speaker reference at some
point following the trial court’s admonition:
“[Plaintiffs’ Counsel:] According to the
life expectancy table, [Burley would] live well
33
into his 70’s. . . . Some people live longer and
others die sooner.
“Which -- I’m going to be fair to
[Defendants’ counsel] -- I would suspect that’s
why she was going through all those things[,]
so you can consider that maybe his lifestyle
would not have dictated he live a full 30-plus
years. But sneakily, under the table, I would
suspect that she’s trying to, once again,
dehumanize him. He was around having
babies here and there, having affairs here and
there; therefore, he’s not worthy of you guys
giv[ing] him a whole lot of money too. No, you
can’t consider that ladies and gentlemen.
“Now with respect to awarding damages
on the loss of the comfort, society, compassion.
Separate those two. The --
“[Defendants’ Counsel]: Your Honor,
I’m going to object that, that misstates the law.
“The Court: I have read the jury the
law, and the jurors will follow the law as stated
to them. Separate the two, ladies and
gentlemen, [Defendants’ counsel] doesn’t want
you to, but separate the two.
“Okay. So I’m an honest person, I’m not
going to suggest to you that with his lifestyle,
maybe he would not have made it to 70-
whatever years, could or could not.”
Defendants acknowledge a speaker reference is missing,
but they contend the second directive to “[s]eparate the two” was
34
properly attributed to the trial court. Thus, Defendants argue
the court erred by “expressly instruct[ing] that the jury was to
separate decedent’s character and conduct from any
determination of his family’s loss.” This is not the most
reasonable reading of the record.
Just before Defendants’ objection, Plaintiffs’ counsel asked
the jury to “[s]eparate those two.” In the subsequent exchange,
the most plausible switch between speakers occurs directly after
the court admonishes the jury to follow the instructions
previously given, at which point Plaintiffs’ counsel appears to
have resumed his argument where he left off, asking the jury to
“[s]eparate the two, ladies and gentlemen.” Indeed, the
substance of the court’s admonition logically undermines
Defendants’ reading. By Defendants’ account, the court at once
admonished the jury to “follow the law as stated to them” prior to
closing arguments, while, in the next breath, giving the jury a
new instruction to separate Burley’s conduct from any
determination of noneconomic damages. As the record is
effectively silent as to where the missing speaker reference
belongs, we will not presume the court abused its discretion when
a fair and more reasonable reading of the transcript suggests no
error occurred. (See Denham v. Superior Court of Los Angeles
County (1970) 2 Cal. 3d 557, 564 [an abuse of discretion will not
be presumed from a silent record; error must be affirmatively
shown].)
Setting the missing speaker reference aside, Defendants
argue the trial court committed reversible error by refusing to
sustain their objection. Defendants contend Plaintiffs’ counsel
misstated the law by asking the jury to “ ‘separate’ their ‘moral
judgments’ of Mr. Burley from their determination of the value of
35
his loss.” Because the jury was expressly instructed to “rely on
their ‘judgment’ to determine the value of, among other things,
the decedent’s ‘moral support,’ ” Defendants maintain the court
was obliged to sustain their objection to the argument. We find
no error in the court’s ruling.
As we have discussed, in delivering summation arguments,
counsel have wide latitude to discuss the merits of a case, both as
to the law and facts. (Cassim, supra, 33 Cal.4th at p. 795.) Here,
Plaintiffs’ counsel fairly argued the jury should not conclude
Burley’s life was “not worthy” of compensation for his children
simply because he had done bad things in his past. The
argument did not misstate the law; it simply asked the jury, in
exercising its “judgment” and “common sense,” to put its moral
judgments to one side and to focus on evidence that reflected
favorably on Burley and his relationship with his children. Not
surprisingly, Defendants’ counsel advanced an opposing view of
the law and facts in her closing, asking the jury to focus on
evidence showing Burley’s “children do not have him here today
. . . because of the life that he led.”8 None of this was improper,
and all of it was within the bounds of counsel’s wide latitude to
“vigorously argue” their case to the jury. (Ibid.) In response to
Defendants’ objection, the court admonished the jurors to “follow
the law as stated to them.” We have no reason to doubt that the
jury followed the court’s directive. (See People v. Forrest (2017)
8 Defendants’ counsel went on to argue, “what you do have to
do is evaluate who he was[,] [b]ecause who he was is a measure of
what you can look at.” She emphasized, “if he’s out in the street
high on PCP, he’s not home with these five children” and “[i]f he’s
out in the street committing a crime, then he’s not at home with
these five children.”
36
7 Cal.App.5th 1074, 1086 [“we presume the jury followed the
court’s instructions over any misstatements of law by the
prosecutor”].)
b. Substantial evidence supports the noneconomic
damages award
Defendants contend the evidence was insufficient to justify
an award of $8 million in noneconomic damages for the loss
suffered by Burley’s estranged wife and his five children. They
argue undisputed evidence “revealed that [Burley’s] contact with
his children was sporadic” and that any inferences to be drawn
from evidence bearing favorably on Burley’s relationship with
Plaintiffs “must be significantly qualified by uncontradicted
evidence about his absences due to drug use, incarceration,
hospitalization for violent injury, and a restraining order
requested by one of the mothers of his children.” In denying
Defendants’ motion for a new trial, the trial court independently
weighed the conflicting evidence and rejected Defendants’
contention that it was insufficient to support the jury’s award.
We find no error in the court’s ruling.
A jury’s determination of the amount that will compensate
children and other family members for the loss of a parent’s
comfort and society is subject to “very narrow appellate review.”
(Rufo v. Simpson (2001) 86 Cal. App. 4th 573, 614 (Rufo)
[addressing noneconomic damages for parents’ loss of an adult
child].) “First, the contention that the evidence does not support
the verdict is reviewed under the substantial evidence standard.
In reviewing a claim of insufficiency of evidence, the appellate
court must consider the whole record, view the evidence in the
light most favorable to the judgment, presume every fact the trier
of fact could reasonably deduce from the evidence, and defer to
37
the trier of fact’s determination of the weight and credibility of
the evidence. [Citations.] Second, the appellate court ordinarily
defers to the trial court’s denial of a motion for new trial based on
excessive damages, because of the trial judge’s greater familiarity
with the case. [Citations.] The trial judge has greater discretion
to reduce the damages on a motion for new trial than the
appellate court has on appeal.” (Ibid.) This is because the trial
court “is bound by the ‘more demanding test of weighing
conflicting evidence than our standard of review under the
substantial evidence rule.’ ” (Fortman v. Hemco, Inc. (1989) 211
Cal. App. 3d 241, 259 (Fortman).) “If the trial judge denied the
motion, concluding the award was not excessive, the appellate
court gives weight to the trial court’s conclusion. [Citations.]
Third, the amount which may compensate the loss of comfort and
society is peculiarly within the discretion of the jury. There is no
fixed standard by which the appellate court can determine
whether the jury’s award for this intangible loss is excessive. The
appellate court usually defers to the jury’s discretion in the
absence of some other factor in the record, such as inflammatory
evidence, misleading instructions or improper argument by
counsel, that would suggest the jury relied upon improper
considerations. [Citations.] The appellate court will interfere
with the jury’s determination only when the award is so
disproportionate to the injuries suffered that it shocks the
conscience and virtually compels the conclusion the award is
attributable to passion or prejudice.” (Rufo, at pp. 614-615; see
also Fortman, at p. 259 [“It is well settled that damages are
excessive only where the recovery is so grossly disproportionate
to the injury that the award may be presumed to have been the
result of passion or prejudice.”].)
38
In a wrongful death action, noneconomic damages include
recovery for the loss of love, assistance, moral support, society,
comfort, care, companionship, and protection of a deceased
parent. (Krouse v. Graham (1977) 19 Cal. 3d 59, 67-68; Rufo,
supra, 86 Cal.App.4th at p. 614.) “Factors such as the closeness
of a family unit, the depth of their love and affection, and the
character of the decedent as kind, attentive, and loving are
proper considerations for a jury assessing noneconomic damages.”
(Soto v. BorgWarner Morse TEC Inc. (2015) 239 Cal. App. 4th 165,
201.) A jury may also consider the deceased parent’s bond with
his children, the frequency of their communication, and whether
the parent participated in the children’s discipline, school work,
and other activities. (Yates v. Pollock (1987) 194 Cal. App. 3d 195,
201; Allen v. Toledo (1980) 109 Cal. App. 3d 415, 424.)
Here, Burley’s two older daughters (ages 12 and seven at
the time of his death) testified to the loving bond they had with
their father. His oldest daughter talked about her dad visiting
her school, how she introduced him to her teachers and the pride
she had in showing him around. She testified that he helped her
with her homework, taught her to play basketball, and that she
enjoyed doing “father and daughter things together.” Burley’s
younger daughter testified that he helped her with homework
and comforted her when she was hurt. She missed going to the
park and ice cream shop with him, hugging him, and telling him
she loved him. The evidence showed Burley attended most of the
girls’ school ceremonies and graduations, and, even after
separating from their mother, he visited the girls twice a week.
Burley’s estranged wife, Rhandi T., described Burley as a
kind, fun, and genuine person. They were married in 2007 and
had two sons together in 2008 and 2010. The evidence showed
39
Burley attended prenatal doctor visits with Rhandi T. and that
he was actively involved in the birth of both sons. Despite their
marital discord, and Rhandi T.’s relocation to Atlanta in 2010,
Burley continued to video chat with the boys at least twice a
week, and he sent his sons clothes, shoes, and letters telling them
he loved them and missed them.
There was similar evidence of Burley’s bond with his
youngest daughter, also born in 2010. Burley sang to her, taught
her to write her name and to say her ABC’s, and the two colored
and played with toys together. Burley lived with his youngest
daughter after his release from prison in 2011, and he often
brought her to his weekly visits with his two older daughters.
Much as they had in their motion for new trial, here,
Defendants emphasize other evidence showing Burley used
drugs, was unfaithful to his wife and girlfriends, had multiple
arrests, and was incarcerated for approximately eight months
shortly after his youngest daughter’s first birthday.
Notwithstanding our substantial evidence standard of review,
Defendants maintain this other evidence cannot be ignored
because Plaintiffs’ favorable testimony about their relationship
with Burley “must be understood in light of the totality of the
evidence.” But evaluating conflicting evidence and drawing
inferences and conclusions in light of the totality of the evidence
is precisely what we presume the jury did in reaching its
damages verdict, and what the trial court did in independently
weighing the evidence before denying Defendants’ new trial
motion. (Rufo, supra, 86 Cal.App.4th at pp. 614-615.) So long as
there was substantial evidence to support the judgment, we are
obliged to defer to the jury’s and trial court’s determinations
40
about what weight conflicting evidence should receive. (Id. at
p. 614.)
The jury was properly instructed with respect to
noneconomic damages, and nothing in the record clearly
establishes the jury relied upon improper considerations.
Although the verdict is very large, this alone does not compel the
conclusion that the award resulted from passion or prejudice.
(Rufo, supra, 86 Cal.App.4th at p. 615.) A “result which requires
reversal should clearly appear from the record. We are unable to
say, as a matter of law, that the judgment in this case is so
excessive as to warrant us in interfering with the finding of the
jury.” (DiRosario v. Havens (1987) 196 Cal. App. 3d 1224, 1241-
1242; see Rufo, at pp. 613-616 [affirming $8.5 million
noneconomic damages award to parents for wrongful death of
their adult son].)
4. Civil Code Section 1431.2 Mandates Comparative
Fault Apportionment, Even When Tortious Conduct Is
Intentional
Defendants contend the trial court erred by failing to
apportion damages according to the jury’s comparative fault
determinations. Despite the jury’s decision to allocate only 20
percent of the fault for Burley’s death to Deputy Aviles, the
judgment makes him liable for 100 percent of the total
noneconomic damages award. Defendants argue this allocation
conflicts with the unambiguous mandate of Civil Code section
1431.2 that “[e]ach defendant shall be liable only for the amount
of non-economic damages allocated to that defendant in direct
proportion to that defendant’s percentage of fault.” (Civ. Code,
41
§ 1431.2, subd. (a).)9 We agree, and will therefore direct the trial
court to enter a separate judgment against Aviles, imposing
liability for the noneconomic damages award in an amount
proportionate to the jury’s comparative fault determination.
In June 1986, the voters approved an initiative measure,
the Fair Responsibility Act of 1986 (codified as sections 1431 to
1431.5 of the Civil Code and popularly known as Proposition 51),
which “modified the traditional, common law ‘joint and several
liability’ doctrine, limiting an individual tortfeasor’s liability for
noneconomic damages to a proportion of such damages equal to
the tortfeasor’s own percentage of fault.” (Evangelatos v.
Superior Court (1988) 44 Cal. 3d 1188, 1192 (Evangelatos).) The
operative statute provides in relevant part:
“In any action for personal injury, property
damage, or wrongful death, based upon
principles of comparative fault, the liability of
each defendant for non-economic damages shall
be several only and shall not be joint. Each
defendant shall be liable only for the amount of
non-economic damages allocated to that
defendant in direct proportion to that
defendant’s percentage of fault, and a separate
judgment shall be rendered against that
defendant for that amount.” (§ 1431.2,
subd. (a).)
By its terms, section 1431.2 imposes “a rule of strict
proportionate liability” on noneconomic damages (DaFonte v. Up-
9 Further statutory references are to the Civil Code, unless
otherwise designated.
42
Right, Inc. (1992) 2 Cal. 4th 593, 600 (DaFonte)), under which
“each defendant is liable for only that portion of the plaintiff’s
noneconomic damages which is commensurate with that
defendant’s degree of fault for the injury” (Evangelatos, at
p. 1198). (Rashidi v. Moser (2014) 60 Cal. 4th 718, 722.)
In determining Deputy Aviles was liable for the entire
$8 million noneconomic damages award, the trial court relied
upon Thomas v. Duggins Construction Co., Inc. (2006) 139
Cal. App. 4th 1105 (Thomas). Thomas holds that section 1431.2
does not apply to an intentional tortfeasor’s liability in a personal
injury case. (Id. at pp. 1112-1113.) While the trial court was
obliged to follow Thomas as controlling Court of Appeal
precedent, we are not bound by the opinion in reviewing the
judgment on appeal. (See Sarti v. Salt Creek Ltd. (2008) 167
Cal. App. 4th 1187, 1193 [“there is no horizontal stare decisis in
the California Court of Appeal”].) Because we conclude Thomas
conflicts with the plain text of section 1431.2, we decline to follow
its holding.
“Issues of statutory construction as well as the application
of that construction to an undisputed set of facts are questions of
law subject to independent review on appeal.” (Lee v. Silveira
(2015) 236 Cal. App. 4th 1208, 1214.) When construing a statute,
we must ascertain the intent of the legislation so as to effectuate
the purpose of the law. (DuBois v. W.C.A.B. (1993) 5 Cal. 4th 382,
387.) “To determine the intent of legislation, we first consult the
words themselves, giving them their usual and ordinary
meaning. [Citations.] When ‘ “statutory language is . . . clear
and unambiguous there is no need for construction, and courts
should not indulge in it.” ’ [Citations.] The plain meaning of
words in a statute may be disregarded only when that meaning is
43
‘ “repugnant to the general purview of the act,” or for some other
compelling reason . . . .’ [Citations.] These principles apply as
much to initiative statutes as to those enacted by the
Legislature.” (DaFonte, supra, 2 Cal.4th at p. 601.)
In DaFonte, our Supreme Court concluded the plain
language of section 1431.2 unambiguously applied in “every case”
to shield “every ‘defendant’ ” from joint liability for noneconomic
damages not attributable to his or her own comparative fault.
(DaFonte, supra, 2 Cal.4th at p. 602.) The plaintiff in DaFonte
was injured at work when he crushed his hand in a mechanical
grape harvester. He received benefits from his employer’s
workers’ compensation insurer and sued the harvester’s
manufacturer for negligence and product defect. (Id. at p. 596.)
At trial, the manufacturer sought to reduce its liability by
demonstrating the employer’s negligent safety policies were
partly responsible for the injury. (Ibid.) The plaintiff prevailed,
but the jury allocated 45 percent of the fault to his employer, and
the trial court commensurately reduced the noneconomic
damages award against the manufacturer. (Id. at pp. 596-597.)
The plaintiff appealed, arguing the manufacturer’s liability
should not be reduced because the employer was immune from
tort liability under the workers’ compensation law, and the
refusal to infer an exception to section 1431.2 would “destroy the
‘delicate’ preexisting balance among the rights of employee,
employer, and third party tortfeasor.” (Id. at p. 603.)
44
The Supreme Court rejected the DaFonte plaintiff’s
argument that preexisting law compelled an exception to section
1431.2’s unambiguous directive. The court explained: “Section
1431.2 declares plainly and clearly that in tort suits for personal
harm or property damage, no ‘defendant’ shall have ‘joint’
liability for ‘non-economic’ damages, and ‘[e]ach defendant’ shall
be liable ‘only’ for those ‘non-economic’ damages directly
attributable to his or her own ‘percentage of fault.’ The statute
neither states nor implies an exception for damages attributable
to the fault of persons who are immune from liability or have no
mutual joint obligation to pay missing shares. On the contrary,
section 1431.2 expressly affords relief to every tortfeasor who is a
liable ‘defendant,’ and who formerly would have had full joint
liability.” (DaFonte, supra, 2 Cal.4th at p. 601.) Further, in
rejecting the lower appellate court’s interpretation—premised on
the reasoning that Proposition 51 amended only the portion of
the Civil Code dealing with “Joint or Several Obligations,” while
leaving other statutory maxims intact—the Supreme Court
reemphasized the point: “[S]ection 1431.2 itself contains no
ambiguity which would permit resort to these extrinsic
constructional aids. The statute plainly attacks the issue of joint
liability for noneconomic tort damages root and branch. [¶] In
every case, it limits the joint liability of every ‘defendant’ to
economic damages, and it shields every ‘defendant’ from any share
of noneconomic damages beyond that attributable to his or her
own comparative fault.” (DaFonte, at pp. 601-602, italics added.)
45
Without discussing or even citing the DaFonte opinion, the
Court of Appeal in Thomas held that section 1431.2 did not shield
a defendant found liable for an intentional tort from
responsibility for noneconomic damages attributable to the
comparative fault of others. (Thomas, supra, 139 Cal.App.4th at
p. 1113.) The plaintiffs in Thomas sued the seller of a used
scissor lift after they were injured when the lift collapsed at a
jobsite. (Id. at p. 1109.) A jury returned a special verdict in favor
of the plaintiffs, finding in part that one of the seller’s employees
made intentionally false representations about the lift’s
maintenance. (Id. at pp. 1109-1110.) Although the jury allocated
only 10 percent of the fault to that employee, the trial court
refused to apportion the damages under section 1431.2, ruling
the statute was inapplicable to the plaintiffs’ fraud cause of
action. (Id. at p. 1110.)
In affirming the ruling, the Thomas court observed that,
“[a]t the time Proposition 51 was adopted, the law was well
established that a tortfeasor who intentionally injured another
was not entitled to contribution from any other tortfeasors.”
(Thomas, supra, 139 Cal.App.4th at p. 1111, citing Code Civ.
Proc., § 875, subd. (d).) Further, citing two past cases where
“policy considerations of deterrence and punishment” had been
invoked to bar reduction of an intentional tortfeasor’s liability to
reflect another’s contributory negligence, the court reasoned the
same considerations counseled against construing section 1431.2
to allow an intentional actor to “ ‘rely on someone else’s
negligence to shift responsibility for his or her own conduct.’ ”
(Thomas, at pp. 1112-1113, citing Weidenfeller v. Star & Garter
(1991) 1 Cal. App. 4th 1 (Weidenfeller) and Heiner v. Kmart Corp.
46
(2000) 84 Cal. App. 4th 335 (Heiner).)10 Based on these extrinsic
aids, the Thomas court concluded, “Proposition 51 did not alter
10 Even if the unambiguous text of section 1431.2 were in
need of construction, neither Weidenfeller nor Heiner supplies
guidance on whether a defendant found liable for an intentional
tort should be held responsible for noneconomic damages
attributable to the fault of another. In Weidenfeller, the jury
assigned fault for the plaintiff’s injuries from an assault in a bar
parking lot 75 percent to a third party assailant, 20 percent to
the bar, and five percent to the plaintiff. (Weidenfeller, supra,
1 Cal.App.4th at p. 4.) The plaintiff challenged the
apportionment on the ground that the assailant acted
intentionally, arguing the clause, “based on principles of
comparative fault” in section 1431.2, subdivision (a), restricted
the statute’s application to cases that did not implicate
intentional misconduct. (Id. at p. 5.) The court rejected the
contention that comparative fault cannot apply where intentional
torts are involved (id. at p. 7), and concluded section 1431.2
limited the bar’s liability to 20 percent of the damages.
(Weidenfeller, at p. 6; see also Martin By and Through Martin v.
United States (9th Cir. 1993) 984 F.2d 1033, 1039 [agreeing with
Weidenfeller, recognizing section 1431.2 “literally applies to any
personal injury action,” and the “clause ‘based upon principles of
comparative fault,’ instructs how ‘the liability of each defendant’
is to be determined”].) However, because the assailant was not
named as a defendant, the Weidenfeller court had no occasion to
address whether a defendant found liable for an intentional tort
is entitled to apportionment under section 1431.2.
In Heiner, after ruling the defendant waived its claim for
apportionment of damages, the court nonetheless commented
that, “[i]n any event, it is reasonably clear that apportionment of
fault for injuries inflicted in the course of an intentional tort--
such as the battery in this case--would have been improper.”
(Heiner, supra, 84 Cal.App.4th at pp. 348-349.) However, the
47
the existing principles governing an intentional tortfeasor’s
liability to an injured plaintiff.” (Thomas, at p. 1111.)
The Thomas court’s holding conflicts with our Supreme
Court’s interpretation of section 1431.2 in DaFonte. As DaFonte
teaches, “section 1431.2 itself contains no ambiguity which would
permit resort to . . . extrinsic constructional aids.” (DaFonte,
supra, 2 Cal.4th at p. 602, italics added.) Yet, in spite of the
statute’s plain declaration that “[e]ach defendant” shall be liable
“only” for those “non-economic” damages directly attributable to
his or her own “percentage of fault” (§ 1431.2, subd. (a), italics
added; DaFonte, at p. 601), Thomas invokes extrinsic “principles
governing an intentional tortfeasor’s liability” to read a limitation
into section 1431.2 that is not present in the statutory text.
(Thomas, supra, 139 Cal.App.4th at p. 1111.) Just as DaFonte
found section 1431.2 “neither states nor implies an exception for
damages attributable to the fault of persons who are immune
from liability” (DaFonte, at p. 601), we likewise find the statute
neither states nor implies an exception for damages attributable
to the fault of a person who acted intentionally rather than
negligently.
verdict form in Heiner did not distinguish between economic and
noneconomic damages, and the court did not consider the
applicability of section 1431.2. (Heiner, at p. 343.) Moreover, the
Heiner court relied exclusively upon comparative fault cases that
predated the voters’ passage of Proposition 51 in 1986. (See
Heiner, at p. 349, citing Li v. Yellow Cab Company of California
(1975) 13 Cal. 3d 804; American Motorcycle Ass’n v. Superior
Court (1978) 20 Cal. 3d 578; Allen v. Sundean (1982) 137
Cal. App. 3d 216; Godfrey v. Steinpress (1982) 128 Cal. App. 3d
154.) The Heiner court’s dictum is not persuasive on a point that
neither it, nor the authorities it relied upon, addressed.
48
The Thomas court’s reliance on a different statute
governing the right of contribution makes the conflict with
DaFonte especially stark. (See Thomas, supra, 139 Cal.App.4th
at p. 1111, citing Code Civ. Proc., § 875, subd (d).) A right of
contribution obtains only where a “judgment has been rendered
jointly against two or more defendants.” (Code Civ. Proc., § 875,
subd. (a), italics added.) As such, the right has no relevance to a
proper construction of section 1431.2, which, as DaFonte makes
clear, “plainly attacks the issue of joint liability for noneconomic
tort damages root and branch.” (DaFonte, supra, 2 Cal.4th at
p. 602, italics added.)11
The Thomas court’s reliance on “policy considerations of
deterrence and punishment” (Thomas, supra, 139 Cal.App.4th at
p. 1112) is similarly problematic. Section 1431.1 expressly
codifies the purpose of the statutes enacted by Proposition 51
(DaFonte, supra, 2 Cal.4th at p. 599), and it expresses no concern
for advancing or preserving liability principles related to
deterrence or punishment. Rather, section 1431.1 decries the
unfairness and cost of “[t]he legal doctrine of joint and several
liability” that “has resulted in a system of inequity and injustice”
(§ 1431.1, subd. (a)), often holding defendants “financially liable
for all the damage” even where they are found to share just “a
fraction of the fault.” (§ 1431.1, subd. (b).) To remedy these
inequities, section 1431.1 declares that “defendants in tort
11 In any event, Code of Civil Procedure section 875,
subdivision (d) demonstrates that when the Legislature intends
to preclude intentional tortfeasors from availing themselves of a
statutory right, it does so explicitly. (Code Civ. Proc., § 875,
subd. (d) [“There shall be no right of contribution in favor of any
tortfeasor who has intentionally injured the injured person.”].)
49
actions shall be held financially liable in closer proportion to their
degree of fault.” (§ 1431.1, subd. (c).) And, to carry this purpose
into effect, Proposition 51 added section 1431.2, which mandates
that “[e]ach defendant shall be liable only for the amount of non-
economic damages allocated to that defendant in direct
proportion to that defendant’s percentage of fault.” (§ 1431.2,
subd. (a); DaFonte, at pp. 599-600.)
Consistent with DaFonte, we conclude the unambiguous
reference to “[e]ach defendant” in section 1431.2, subdivision (a)
mandates allocation of noneconomic damages in direct proportion
to a defendant’s percentage of fault, regardless of whether the
defendant’s misconduct is found to be intentional. Applying the
plain meaning of the statutory text will effectuate its purpose to
prevent unfairness by holding all “defendants in tort actions . . .
financially liable in closer proportion to their degree of fault.”
(§ 1431.1, subd. (c).) Because Deputy Aviles’s liability is governed
by section 1431.2, the judgment must be vacated and separate
judgments must be rendered against Deputy Beserra and Deputy
Aviles in direct proportion to each defendant’s percentage of
fault. (§ 1431.2, subd. (a).)
5. Plaintiffs’ Cross-Appeal
Plaintiffs cross-appealed from the trial court’s order
granting Defendants summary adjudication on claims brought
under section 52.1, commonly referred to as the “Tom Bane Civil
Rights Act” or the “Bane Act.” Plaintiff T.E. also cross-appealed
from the court’s ruling denying her motion for attorney fees
under Code of Civil Procedure section 1021.5. Because the
evidence presented in connection with the summary adjudication
motion was sufficient to raise a triable issue of fact as to whether
the deputies deliberately subjected Burley to excessive force, with
50
the specific intent to violate his Fourth Amendment rights, we
conclude the court erred in granting summary adjudication
against Plaintiffs’ Bane Act claims. We find no error in the
court’s ruling denying the motion for attorney fees.
a. Defendants were not entitled to summary
adjudication on Plaintiffs’ Bane Act claims
The Bane Act provides a civil cause of action against
anyone who “interferes by threat, intimidation, or coercion . . .
with the exercise or enjoyment . . . of rights secured by the
Constitution or laws of the United States, or of the rights secured
by the Constitution or laws of this state.” (§ 52.1, subds. (a) &
(b).) “Although initially enacted ‘to stem a tide of hate crimes’
[citation], ‘a plaintiff need not allege the defendant acted with
discriminatory animus or intent; a defendant is liable if he or she
interfered with the plaintiff’s constitutional rights by the
requisite threats, intimidation, or coercion.’ ” (Simmons v.
Superior Court (2016) 7 Cal.App.5th 1113, 1125 (Simmons).)
“The essence of a Bane Act claim is that the defendant, by the
specified improper means (i.e., ‘threats, intimidation or coercion’),
tried to or did prevent the plaintiff from doing something he or
she had the right to do under the law or to force the plaintiff to do
something that he or she was not required to do under the law.”
(Austin B. v. Escondido Union School Dist. (2007) 149
Cal. App. 4th 860, 883 (Austin B.).)
Defendants moved for summary adjudication of Plaintiffs’
Bane Act claims on the ground that, under Shoyoye v. County of
Los Angeles (2012) 203 Cal. App. 4th 947, 959 (Shoyoye), a plaintiff
must show a “threat, intimidation, or coercion” independent of the
coercion inherent in an underlying civil rights violation. Because
it was undisputed that Defendants had probable cause to arrest
51
Burley, they argued evidence showing they used excessive force
in effecting the arrest was insufficient to establish a Bane Act
violation. The trial court agreed. Granting summary
adjudication of the Bane Act claims, the court ruled that “the
alleged coercion is . . . inherent in the constitutional violation
alleged, the use of excessive force. The statutory requirement of
‘threats, intimidation, or coercion’ is not met.”
In their cross-appeal, Plaintiffs argue the trial court
fundamentally misread Shoyoye. They contend Shoyoye’s
independent coercion requirement applies only where the civil
rights violation is the result of unintentional or negligent
conduct. But where the civil rights violation is intentional,
Plaintiffs argue the statutory requirements of the the Bane Act
are met, even if coercion is inherent in the underlying violation.
We agree with Plaintiffs that a more narrow reading of Shoyoye
is necessary to conform its holding to the statutory text.12
In Shoyoye, the court considered whether negligent but
inherently coercive conduct was sufficient to establish a Bane Act
violation. There, the plaintiff sued a county after he was lawfully
12 “ ‘We review questions of law as well as orders granting
summary adjudication under the de novo standard of review.’
[Citation.] Likewise, the interpretation of a statute presents a
legal question we review independently.” (Angelica Textile
Services, Inc. v. Park (2013) 220 Cal. App. 4th 495, 504.) “A
defendant meets his or her burden in a summary adjudication
motion ‘by negating an essential element of the plaintiff’s case, or
by establishing a complete defense, or by demonstrating the
absence of evidence to support the plaintiff’s case.’ ” (Ibid.) If the
defendant does not meet its initial burden, the court must deny
the summary adjudication motion. (Simmons, supra, 7
Cal.App.5th at p. 1124.)
52
arrested but inadvertently overdetained by 16 days due to a
paperwork error. (Shoyoye, supra, 203 Cal.App.4th at pp. 951-
953.) Citing “multiple references to violence or threats of
violence” in other subdivisions of section 52.1, the Shoyoye court
concluded the statute “was intended to address only egregious
interferences with constitutional rights, not just any tort,” and
the “act of interference with a constitutional right must itself be
deliberate or spiteful” to establish a Bane Act violation. (Shoyoye,
at p. 959, italics added.) Further, the court held intentional
conduct was required even when the interference was
accomplished through necessarily coercive means. Thus, the
Shoyoye court explained, “where coercion is inherent in the
constitutional violation alleged, i.e., an overdetention in County
jail, the statutory requirement of ‘threats, intimidation, or
coercion’ is not met. The statute requires a showing of coercion
independent from the coercion inherent in the wrongful detention
itself.” (Ibid.)
Defendants and the trial court read this latter holding to
require a showing of coercion independent from the coercion
inherent in an underlying civil rights violation, even where the
defendant acts deliberately or spitefully in interfering with an
individual’s civil rights. While we acknowledge there is language
in Shoyoye to support this view, we find this reading to be
inconsistent with the court’s actual analysis of the issue. More
importantly, this reading conflicts with the Bane Act’s statutory
text. Accordingly, we reject it.
Although the Shoyoye court seemed to suggest a categorical
rule requiring independent coercion whenever coercion is
inherent in the underlying civil rights violation, the court’s
analysis of the statutory text indicates it meant the rule to apply
53
only where the underlying violation (and the incidental coercion
that accompanied it) was the product of unintentional or
negligent error. Thus, after cataloguing the numerous
subdivisions of section 52.1 that referred to “violence or threats of
violence,” the Shoyoye court observed, “[t]he apparent purpose of
the statute is not to provide relief for an overdetention brought
about by human error rather than intentional conduct.” (Shoyoye,
supra, 203 Cal.App.4th at pp. 958-959, italics added.) Put
differently, the court recognized that the Bane Act’s “apparent
purpose” was to provide relief for an overdetention brought about
by intentional conduct and this, standing alone, would be
sufficient to establish a violation. (But see Allen v. City of
Sacramento (2015) 234 Cal. App. 4th 41, 69 (Allen) [holding
allegation of “a wrongful arrest or detention, without more, does
not” state a claim for violation of the Bane Act].)13
13 The Allen court relied principally upon a Massachusetts
case, Longval v. Commissioner of Correction (1989) 535 N.E.2d
588 (Longval), to conclude a wrongful detention, without more,
does not constitute a coercive interference with the right to be
free from unreasonable seizure. (Allen, supra, 234 Cal.App.4th at
pp. 68-69.) In Longval, the Massachusetts Supreme Judicial
Court considered a prisoner’s claim under the Massachusetts civil
rights law (upon which the Bane Act was modeled) that his rights
were violated when he was unlawfully transferred to an
administrative segregation unit in another prison without a
hearing. (Longval, at p. 590.) The Longval court held that “[a]
direct violation of a person’s rights does not by itself involve
threats, intimidation, or coercion and thus does not implicate the
Act,” explaining, “[c]onduct, even unlawful conduct . . . lacks
these qualities when all it does is take someone’s rights away
directly.” (Id. at p. 593.)
54
The Shoyoye court’s discussion of why the plaintiff in that
case failed to prove “independent” coercion lends additional
support to our more narrow reading of the court’s holding. In
explaining why the incidental coercion the plaintiff suffered did
not establish a Bane Act violation, the court continually returned
to the distinction between intentional interference with civil
rights and the negligent interference the plaintiff experienced:
“Any intimidation or coercion that occurred was simply that
which is reasonable and incident to maintaining a jail. The
coercion was not carried out in order to effect a knowing
interference with [the plaintiff’s] constitutional rights. . . . [¶] . . .
Our Supreme Court has warned against using nontextual
sources, such as cases interpreting the Massachusetts statute, to
reach a construction of the Bane Act that is not supported by its
text. (See Jones v. Kmart Corp. (1998) 17 Cal. 4th 329, 335, 337
[rejecting “plaintiffs’ assertion that because . . . the
Massachusetts Civil Rights Act of 1979 [citation] provided the
model for . . . portions of section 52.1 . . . and Massachusetts
courts have construed the commonwealth’s law to apply against
private actors’ putative ‘violations’ of legal guaranties that only
limit the state’s power, we should so construe section 52.1”;
explaining, “[s]ection 52.1’s language simply does not support
that construction”]; see also Cornell v. City and County of San
Francisco (2017) 17 Cal.App.5th 766, 801 (Cornell) [in
interpreting California’s Bane Act, “we are not obliged to follow
the construction the Supreme Judicial Court of Massachusetts
placed on the [Massachusetts Civil Rights Act] in what appears
to be some brief, fugitive dicta at the end of the opinion in
[Longval]”].) Because the Bane Act’s text plainly prohibits
deliberate interference with an individual’s civil rights by threat,
intimidation, or coercion, we disagree with Allen and Shoyoye to
the extent they hold an intentional unlawful arrest is insufficient
to establish a Bane Act violation.
55
There is no evidence that [the plaintiff] was treated differently
than other inmates who were lawfully incarcerated, or that any
conduct directed at him was for the purpose of interfering with his
constitutional rights.” (Shoyoye, supra, 203 Cal.App.4th at
p. 961, italics added.) Again, the Shoyoye court’s analysis
suggests, if the plaintiff had been intentionally overdetained with
the knowing purpose of interfering with his right to be free from
unreasonable seizure, a Bane Act violation would have been
established, even though coercion is inherent in every detention,
whether lawful or unlawful. In sum, we read Shoyoye to hold
that where an individual is subject to coercion that is incidental
to an unintentional or negligent interference with civil rights, the
individual must show some additional coercion, independent of
that caused by the negligent interference, to establish a Bane Act
violation.
This reading of Shoyoye is compelled by the statutory text.
As discussed, section 52.1, subdivision (a) unambiguously
prohibits “a person or persons, whether or not acting under color
of law,” from “interfer[ing] by threat, intimidation, or coercion . . .
with the exercise or enjoyment by any individual or individuals of
rights secured by the Constitution or laws of the United States,
or of the rights secured by the Constitution or laws of this state.”
Nothing in the statutory text exempts conduct that is inherently
coercive from this prohibition. (See Austin B., supra, 149
Cal.App.4th at p. 883 [“The essence of a Bane Act claim is that
the defendant, by the specified improper means (i.e., ‘threats,
intimidation or coercion’), tried to or did prevent the plaintiff
from doing something he or she had the right to do under the
law.”].) While we agree with the Shoyoye court that the statutory
text requires a knowing interference with civil rights by
56
intentional threats, intimidation, or coercion, any other limitation
that might be derived from the nature of the interference—e.g.,
an interference that is inherently coercive—has no basis in the
statute’s unambiguous language, and thus can be imposed only
by legislative action. (See Venegas v. County of Los Angeles
(2004) 32 Cal. 4th 820, 842-843 [holding “unambiguous language
of section 52.1” referring to “ ‘[a]ny individual’ ” could not be
interpreted “to restrict the benefits of the section to persons who
are actual or perceived members of a protected class”; observing,
“imposing added limitations on the scope of section 52.1 would
appear to be more a legislative concern than a judicial one”].)
The court in Cornell reached largely the same conclusion
regarding Shoyoye and the statutory text. The Bane Act claim in
Cornell arose from a wrongful arrest. On appeal, the defendants,
relying on Shoyoye, argued the evidence was insufficient to
establish liability because the plaintiff failed to show a separately
coercive act apart from the arrest itself. (Cornell, supra, 17
Cal.App.5th at p. 795.) In rejecting the argument, the Cornell
court “acknowledge[d] that some courts ha[d] read Shoyoye as
having announced ‘independen[ce] from [inherent coercion]’ as a
requisite element of all [Bane Act] claims,” but concluded “those
courts misread the statute.” (Cornell, at p. 799.) The court
explained:
“By its plain terms, [the Bane Act] proscribes
any ‘interfere[nce] with’ or attempted
‘interfere[nce] with’ protected rights carried out
‘by threat, intimidation or coercion.’ Nothing in
the text of the statute requires that the
offending ‘threat, intimidation or coercion’ be
‘independent’ from the constitutional violation
57
alleged. Indeed, if the words of the statute are
given their plain meaning, the required ‘threat,
intimidation or coercion’ can never be
‘independent’ from the underlying violation or
attempted violation of rights, because this
element of fear-inducing conduct is simply the
means of accomplishing the offending deed (the
‘interfere[nce]’ or ‘attempted . . . interfere[nce]’).
That is clear from the structure of the statute,
which reads, ‘If a person or persons, whether or
not acting under color of law, interferes by
threat, intimidation, or coercion,’ a private
action for redress is available.” (Id. at pp. 779-
800, italics omitted.)
While it declined to adopt Shoyoye’s “independent from
inherent coercion test,” the Cornell court agreed that the Bane
Act required “ ‘more egregious conduct than mere negligence’ ” to
impose liability. (Cornell, supra, 17 Cal.App.5th at pp. 796-797.)
In that regard, the court reasoned that “the statutory phrase
‘threat, intimidation or coercion’ serves as an aggravator
justifying the conclusion that the underlying violation of rights is
sufficiently egregious to warrant enhanced statutory remedies,
beyond tort relief.” (Id. at p. 800.) However, the Cornell court
saw “no reason that, in addition, the required ‘threat,
intimidation or coercion,’ whatever form it may take, must also
be transactionally ‘independent’ ” from a properly proved civil
rights violation. (Ibid., italics omitted.)
The Cornell court suggested the “better approach” was to
“focus directly on the level of scienter required to support a
Section 52.1 claim.” (Cornell, supra, 17 Cal.App.5th at p. 799.)
58
Thus, the court held that, where a civil rights violation has been
“properly pleaded and proved, the egregiousness required by
Section 52.1 is tested by whether the circumstances indicate the
[defendant] had a specific intent to violate the [plaintiff’s civil
rights], not by whether the evidence shows something beyond the
coercion ‘inherent’ in the [violation].” (Cornell, at pp. 801-802,
italics added.)
The Ninth Circuit recently adopted Cornell’s specific intent
standard in an excessive force case brought under the Bane Act.
(Reese v. County of Sacramento (9th Cir. 2018) 888 F.3d 1030,
1043 (Reese).) In concluding there was “no ‘convincing evidence
that the [California] supreme court likely would not follow’
Cornell,” the appeals court observed, “Cornell correctly notes that
the plain language of Section 52.1 gives no indication that the
‘threat, intimidation, or coercion’ must be independent from the
constitutional violation.” (Reese, at p. 1043.) Conversely, “the
specific intent requirement articulated in Cornell is consistent
with the language of Section 52.1, which requires interference
with rights by ‘threat, intimidation or coercion,’ words which
connote an element of intent.” (Reese, at p. 1044.)
Like Cornell and Reese, we conclude that, to establish
liability under the Bane Act, a plaintiff must prove the defendant
acted with a specific intent to violate the plaintiff’s civil rights.
(See also Simmons, supra, 7 Cal.App.5th at p. 1127.)14 Here,
14 The court in Simmons reached a similar conclusion
regarding a deliberate and inherently coercive interference with a
criminal suspect’s Fourth Amendment rights. In Simmons, the
plaintiff presented evidence that, after he was lawfully detained,
the two arresting officers punched him several times when he
posed no danger, pulled his underwear into a “ ‘wedgie,’ ” and
59
Plaintiffs presented sufficient evidence in opposition to
Defendants’ summary adjudication motion to raise a triable issue
of fact on the question of Defendants’ intent.
“The Fourth Amendment’s prohibition on ‘unreasonable . . .
seizures’ protects individuals from excessive force in the context
of an arrest or seizure.” (Fetters v. County of Los Angeles (2016)
243 Cal. App. 4th 825, 837; U.S. Const., 4th Amend.; see Graham
v. Connor (1989) 490 U.S. 386, 394.) Although Defendants’
evidence established as an undisputed fact that they had
probable cause to detain Burley, Plaintiffs’ evidence suggested
Defendants deliberately subjected Burley to excessive force
beyond that which was necessary to make the arrest. Once
subjected him to a roadside anal cavity search on suspicion that
he possessed drugs. (Simmons, supra, 7 Cal.App.5th at pp. 1120-
1121.) In reviving the plaintiff’s Bane Act claim after the trial
court granted summary judgment, the Simmons court ruled that,
“[e]ven assuming the officers had probable cause to arrest [the
plaintiff], the complained-of conduct asserted here—multiple
nonconsensual, roadside, physical body cavity searches—is
necessarily intentional conduct that is separate and independent
from a lawful arrest for being in a park after it closed, for riding a
bicycle in the dark without a headlight, or for resisting a peace
officer.” (Id. at p. 1127, italics omitted.) Although Simmons
adopted the Shoyoye court’s “separate and independent” framing,
the only underlying civil rights violation was the unreasonable
search (the precipitating arrest having been indisputably lawful).
Nonetheless, despite the fact that “coercion is inherent” in an
unreasonable custodial search (Shoyoye, supra, 203 Cal.App.4th
at p. 959), the Simmons court did not require evidence of coercion
independent of the civil rights violation, as the complained-of
conduct was “necessarily intentional.” (Simmons, at p. 1127,
italics omitted.)
60
Defendants’ use of force crossed that threshold, their conduct
became a coercive interference with Burley’s civil rights as
proscribed by the Bane Act. Because Plaintiffs presented
sufficient evidence to create a triable issue as to whether
Defendants subjected Burley to excessive force with the specific
intent to interfere with his Fourth Amendment rights, the trial
court erred in granting summary adjudication of Plaintiffs’ Bane
Act claims.
b. The trial court properly denied attorney fees under
Code of Civil Procedure section 1021.5
Code of Civil Procedure section 1021.5 authorizes an award
of attorney fees “to a successful party against one or more
opposing parties in any action which has resulted in the
enforcement of an important right affecting the public interest if:
(a) a significant benefit, whether pecuniary or nonpecuniary, has
been conferred on the general public or a large class of persons,
(b) the necessity and financial burden of private enforcement . . .
are such as to make the award appropriate, and (c) such fees
should not in the interest of justice be paid out of the recovery, if
any.” The “fundamental purpose” of the statute is to “ ‘provide
some incentive for the plaintiff who acts as a true private
attorney general, prosecuting a lawsuit that enforces an
important public right and confers a significant benefit, despite
the fact that his or her own financial stake in the outcome would
not by itself constitute an adequate incentive to litigate.’ ”
(Nelson, supra, 113 Cal.App.4th at p. 795.) In denying Plaintiffs’
motion for attorney fees, the trial court found these requisite
elements were not met. 15 We review the court’s ruling for an
15 For simplicity’s sake, we refer to the court’s denial of
“Plaintiffs’ attorney fee motion”; however, as Defendants point
61
abuse of discretion, and find no abuse on this record. (Ryan v.
California Interscholastic Federation (2001) 94 Cal. App. 4th 1033,
1044 [whether a claimant is entitled to Code of Civil Procedure
section 1021.5 attorney fees “rests within the sound discretion of
the trial court and that discretion shall not be disturbed on
appeal absent a clear abuse”].)
“An award on the ‘private attorney general’ theory is
appropriate when the cost of the claimant’s legal victory
transcends his personal interest, that is, when the necessity for
pursuing the lawsuit placed a burden on the plaintiff ‘out of
proportion to his individual stake in the matter.’ ” (County of
Inyo v. City of Los Angeles (1978) 78 Cal. App. 3d 82, 89 (County of
Inyo), quoting Serrano v. Priest (1977) 20 Cal. 3d 25, 45, 46,
fn. 18.) “The successful litigant’s reasonably expected financial
benefits are determined by discounting the monetary value of the
benefits that the successful litigant reasonably expected at the
time the vital litigation decisions were made by the probability of
success at that time.” (Collins v. City of Los Angeles (2012) 205
out and Plaintiffs admit, our jurisdiction to review the order is
limited to the ruling against T.E.—the only plaintiff to identify
the order denying attorney fees in her notice of cross-appeal. (See
Polster, Inc. v. Swing (1985) 164 Cal. App. 3d 427, 436 [“Our
jurisdiction on appeal is limited in scope to the notice of appeal
and the judgment or order appealed from.”]; Soldate v. Fidelity
National Financial, Inc. (1998) 62 Cal. App. 4th 1069, 1073;
Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990)
220 Cal. App. 3d 35, 47 [“ ‘Despite the rule favoring liberal
interpretation of notices of appeal, a notice of appeal will not be
considered adequate if it completely omits any reference to the
judgment [or order] being appealed.’ ”].)
62
Cal. App. 4th 140, 154; Conservatorship of Whitley (2010) 50
Cal. 4th 1206, 1215 (Whitley).)
“ ‘ “After approximating the estimated value of the case at
the time the vital litigation decisions were being made, the court
must then turn to the costs of the litigation—the legal fees,
deposition costs, expert witness fees, etc., which may have been
required to bring the case to fruition. . . . [¶] The final step is to
place the estimated value of the case beside the actual cost and
make the value judgment whether it is desirable to offer the
bounty of a court-awarded fee in order to encourage litigation of
the sort involved in this case. . . . [A] bounty will be appropriate
except where the expected value of the litigant’s own monetary
award exceeds by a substantial margin the actual litigation
costs.’ ” (Whitley, supra, 50 Cal.4th at pp. 1215-1216.)
In their motion for attorney fees, Plaintiffs claimed their
attorneys decided to pursue the case at a time when “the
reasonable estimated value of the case was negative.” They
maintained “the earliest concrete information” they had was the
coroner’s report, which showed Burley had cocaine, PCP, and
marijuana in his system and that “his death was due in part to
his behavior while on those drugs.” They argued it was “more
likely than not that plaintiffs would lose the case on liability, and
sums expended for hard costs along with the case.”
Defendants responded with evidence showing Plaintiffs’
investigator had met with their key eyewitness, Carl Boyer,
within a month of Burley’s death. At trial, Boyer testified he told
the investigator that one deputy had put Burley in a chokehold
and another beat him on the head with a flashlight seven to ten
times. Defendants also emphasized that all the evidence
Plaintiffs presented to the jury on wrongful death damages—
63
evidence about Burley’s relationship with his children and his
wife—was readily available to Plaintiffs’ counsel at the time the
suit was filed. And, as for Plaintiffs’ expected recovery,
Defendants cited statements made by Plaintiffs’ counsel during
voir dire and closing arguments, asking the jury to award
between $16.75 and $24 million in total damages. (See Satrap v.
Pacific Gas & Electric Co. (1996) 42 Cal. App. 4th 72, 78-79
(Satrap) [estimating plaintiffs’ expected recovery based on closing
arguments to the jury].)
Based on the foregoing evidence, the trial court could
reasonably infer that, at the time important litigation decisions
were made, Plaintiffs’ expected recovery was more than enough
to warrant incurring the costs of litigation. As Defendants
showed in their opposition brief, even if discounted for a 30
percent chance of success, Plaintiffs could have anticipated a
recovery ranging from more than $5 million to $7.2 million.
These estimates, when discounted for uncertainty, still far
exceeded the approximately $1.9 million in attorney fees that
Plaintiffs requested. (See Satrap, supra, 42 Cal.App.4th at
pp. 76-80 [concluding $1.2 million in attorneys’ fees was not
disproportionate to an expected recovery of $3 million, even
though actual recovery was only $523,750].) The trial court did
not abuse its discretion in determining Plaintiffs failed to show
the cost of their legal victory was out of proportion to their
individual stake in the matter. (County of Inyo, supra, 78
Cal.App.3d at p. 89; Nelson, supra, 113 Cal.App.4th at pp. 795-
796 [in wrongful death suit against sheriff’s deputies, where jury
found decedent died from positional asphyxia caused by deputies’
negligence, plaintiffs’ request for $5 million and jury’s award of
64
$2 million demonstrated plaintiffs had “substantial” financial
incentive to pursue case].)
DISPOSITION
The judgment is reversed with respect to the noneconomic
damages award against Deputy Aviles, and affirmed in all other
respects. On remand, the trial court is directed to vacate the
judgment and enter separate judgments against Deputy Aviles
and Deputy Beserra allocating noneconomic damages to each
defendant in direct proportion to that defendant’s percentage of
fault. (Civ. Code, § 1431.2, subd. (a).)
The order granting summary adjudication to Defendants on
Plaintiffs’ Civil Code section 51.2 claims is reversed, and the
matter is remanded to the trial court for further proceedings
consistent with the principles expressed in this opinion. The
order denying Plaintiffs’ motion for attorney fees under Code of
Civil Procedure section 1021.5 is affirmed.
The parties shall bear their own costs.
65
CERTIFIED FOR PARTIAL PUBLICATION
EGERTON, J.
We concur:
EDMON, P. J.
DHANIDINA, J. †
† Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
66