Valenzuela v. City of Long Beach CA2/7

Filed 3/23/21 Valenzuela v. City of Long Beach CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
SOFIA VALENZUELA et al., B299381
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC672993)
v.
CITY OF LONG BEACH et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Michael P. Vicencia, Judge. Affirmed.
Law Office of Gerald Philip Peters, Gerald P. Peters;
Casillas & Associates, Arnoldo Casillas for Plaintiffs and
Appellants.
Alderman & Hilgers, Allison R. Hilgers; Office of the Long
Beach City Attorney, Charles Parkin, City Attorney, and Howard
D. Russell, Principal Deputy City Attorney for Defendants and
Respondents.
_______________________
INTRODUCTION
Two Long Beach police officers fatally shot Jose Romero
when he advanced on one of them with a knife. His daughter,
Ashlee Romero, and his estate (together, “the Romero plaintiffs”
or “plaintiffs”) sued the City of Long Beach (“City”) and the two
officers for battery, negligence, and violation of the Tom Bane
Civil Rights Act (Civ. Code, § 52.1). In the liability phase of the
bifurcated trial, the jury found that one of the officers, but not the
other, had used unreasonable force in shooting Romero.
As the damages phase commenced, the trial court and
counsel realized the special verdict form had not asked the jury to
determine whether the officer’s use of unreasonable force was a
substantial factor in causing Romero’s death. With counsel’s
agreement, the trial court provided the jury with a special
interrogatory and a modified substantial factor jury instruction.
The jury found that plaintiffs had not proved that the officer’s
unreasonable use of force caused Romero’s death. The trial court
entered judgment for the City and the officers.
The Romero plaintiffs argue the special verdict form
precluded the jury from considering plaintiffs’ negligence cause of
action, and the trial court erred in giving the special
interrogatory and modified substantial factor instruction. We
affirm.
FACTUAL AND PROCEDURAL HISTORY
The Romero plaintiffs’ arguments rest on the trial court’s
and counsel’s conduct with respect to the jury instructions, the
special verdict form, the special interrogatory, and the verdict.
We thus provide a detailed description of the relevant trial
proceedings and a truncated description of the underlying events.
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A. Officers DeJongh and Hynes Respond to Romero’s 911 Call
On the night of September 4, 2016, Romero called 911 and
told the dispatcher that he was a veteran, he had a gun, and he
sought a “suicide by cop.” The dispatcher understood Romero to
mean that he wanted officers to respond to his location and shoot
him.
Long Beach police officers Gerrit DeJongh and Michael
Hynes responded to the scene, an apartment building in a high-
density residential and commercial neighborhood. Along with a
third officer, Sean Hunt, DeJongh and Hynes took positions to
contain the perimeter until a specialized team could arrive to
take Romero into custody. They observed Romero walking in
circles in the street holding a knife, speaking on his cellular
telephone, and making an exaggerated movement of putting
something in the waistband of his pants. Hunt repeatedly tried
to engage Romero verbally and asked him to put the knife down,
but Romero appeared to ignore him.
B. DeJongh and Hynes Shoot Romero When He Advances on
DeJongh with a Knife
After 15 to 25 minutes of walking in the street, Romero
suddenly ran out of sight into the courtyard of a building across
the street from the officers. The three officers moved to try to
locate him, but remained across the street to continue containing
the area, with Hynes and Hunt on the sidewalk to the south of
DeJongh. DeJongh and Hynes had their handguns out, and
Hunt had a Taser.
Romero re-emerged approximately one minute later and
began walking across the street towards Hynes and Hunt with
the knife raised above his head. Eyewitnesses and those who
viewed video of the incident described Romero’s speed as a “brisk
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walk, like a jog,” “walking briskly,” or a “fast-paced walk.” When
Romero reached the middle of the street, he suddenly changed
direction and moved directly toward DeJongh from
approximately 25 feet away with a “look of rage” or “look of
intent” on his face. Hynes testified Romero “charged.” Hynes
said “Gerrit, watch out,” and DeJongh shouted at Romero to drop
the knife.
Romero took two or three steps toward DeJongh with the
knife raised, and DeJongh and Hynes fired at Romero. DeJongh
fired three times, and Hynes fired four times. DeJongh and
Hynes each testified that each aimed at Romero’s torso. DeJongh
stopped firing when Romero stopped moving forward and fell to
the ground approximately 10 feet from DeJongh. Hynes stopped
firing when Romero was on the ground.
A video taken by a witness and reviewed by Lieutenant
Lloyd Cox showed Romero on the ground before the officers fired
the last three shots; Cox testified he did not see Romero move
before the officers fired the last three shots. Although the officers
fired seven shots, on the audio Cox could only identify the sound
of six shots. Cox testified the third shot sounded unusual and
could have been two shots being fired simultaneously.
The coroner testified that Romero sustained six gunshot
wounds, two of which were fatal: one to the chin and one to the
right shoulder and back. The two fatal wounds were consistent
with being shot by a person standing in front of him. The coroner
did not determine the sequence of the gunshots.
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C. The Parties Agree on a Special Verdict Form
Both sides submitted proposed special verdict forms with
questions on battery and negligence.1
The Romero plaintiffs’ proposed form contained two
questions on battery and instructions:
QUESTION NO. 1: Have the plaintiffs proven by a
preponderance of the evidence that any of the
following defendants harmed Jose Romero by using
unreasonable force against him?
Defendant Gerrit Dejongh YES_____ NO______
Defendant Michael Hynes YES_____ NO______
If your answer to Question No. 1 is “Yes”, proceed to
Question No. 2. If your answer to Question No. 1 is
“No,” proceed to Question No. 3 [regarding
negligence].
QUESTION NO. 2: Were any of the following
defendants’ use of unreasonable force a substantial
factor in causing harm to Jose Romero?
Defendant Gerrit Dejongh YES_____ NO______
Defendant Michael Hynes YES_____ NO______
If your answer to Question No. 2 is “Yes”, proceed to
Question No. 3 [sic]. If your answer to Question No. 2
1 The parties stipulated that if the jury found the
commission of a battery, the City would be liable on the Bane Act
cause of action. The parties agreed that the jury need not be
instructed on the Bane Act cause of action and that the special
verdict form need not include questions about its elements. The
parties also stipulated that the City’s liability for battery and
negligence derived from that of DeJongh and Hynes pursuant to
respondeat superior.
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is “No,” proceed to Question No. 3 [regarding
negligence]. (Bold and italics in original.)
Defendants’ proposed form contained a single battery
question and instructions, without a substantial factor question:
Question No. 1: Did either defendant officer use
unreasonable force against Jose Romero?
Gerrit DeJongh ________Yes _______No
Michael Hynes ________Yes _______No
If you answered “Yes” to Question 1, for either or both
of the officer(s), then go to the directions for Question
4 [damages] and do not answer Questions 2 and 3
[regarding negligence]. If you answered “No” to
Question 1 for both officers, then answer Question No.
2. (Bold, italics, and underlining in original.)
During a subsequent discussion about the jury instructions,
both parties stated their understanding that both proposed
verdict forms contemplated findings of battery or negligence, but
not both. Following that discussion, both sides submitted revised
proposed special verdict forms.
The record does not contain the revised forms, but after
reviewing them, the trial court stated:
So as I look at your special verdict form, I see the two
forms that are present—I see two differences. The
first difference is that the defendant has one
substantial factor question for negligence . . . and
plaintiff has two, one for negligence and one for
unreasonable force.
The trial court asked defendants why their form did not have a
substantial factor question for battery. Defense counsel
responded:
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[T]he unreasonable force as we have it laid out is the
battery; and it’s pretty clear that if there was an
unreasonable use of force, that unreasonable use of
force would be a substantial factor in causing the
harm here, so we just didn’t see it as necessary.
Plaintiffs’ counsel replied:
[W]ith that explanation, . . . I shouldn’t, if Plaintiffs
are successful . . . expect a question or an appeal on
the substantial factor in the jury instructions. . . . I
take it that we wouldn’t need the substantial factor.
Less is more, especially when it comes to the verdict
form.
So with that proviso that they recognize if they find a
battery, there’s substantial factor, I’m good.
Following this agreement, the trial court ruled that it would use
defendants’ verdict form, but modify the form to identify the
officers by name in the comparative negligence section.
The court and the parties had a detailed discussion about
the battery question on the form, including that the form
instructed the jury that it could find battery or negligence or
neither, but not both. The court clarified the specific wording of
the instructions following the battery question, i.e., that if the
jury found unreasonable force, it should not answer any more
questions. Plaintiffs’ counsel did not object and defense counsel
affirmatively agreed.
The court modified the form in accordance with the
discussion and directed the clerk to provide copies to counsel.
The trial court instructed counsel:
If you have changes, mark it up; but if you all agree
to it, let me know. If it’s agreeable to you, then one
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attorney from each side initial the corner of each
page.
Both attorneys initialed the final special verdict form, indicating
that they agreed to the form.
The final special verdict form had three sections: battery,
negligence, and comparative negligence. The battery section
contained one question and instructions:
Question No. 1: Did either defendant officer use
unreasonable force against Jose Romero?
Gerrit DeJongh ________Yes _______No
Michael Hynes ________Yes _______No
If you answered “Yes” to Question 1, for either or both
of the officer(s), then stop here, answer no further
questions, and have the presiding juror sign and date
this form. If you answered “No” to Question 1 for both
officers, then answer Question No. 2. (Bold and italics
in original.)
The negligence section followed the battery section and had
two questions and instructions:
Question No. 2: Was either defendant officer
negligent?
Gerrit DeJongh ________Yes _______No
Michael Hynes ________Yes _______No
If you answered “Yes” to Question 2 for either or both
of the officer(s), then answer Question 3 for the
officer(s) for whom you answered “Yes” to Question 2.
If you answered “No” to Question 2 for both officers,
then stop here, answer no further questions, and have
the presiding juror sign and date this form.
Question No. 3: Was the officer’s negligence a
substantial factor in causing harm to Jose Romero?
8
Gerrit DeJongh ________Yes _______No
Michael Hynes ________Yes _______No
If you answered “Yes” to Question 3 for either or both
of the officer(s), then answer Question 4. If you
answered “No” to Question 3 for both officers, then
stop here, answer no further questions, and have the
presiding juror sign and date this form. (Bold and
italics in original.)
The comparative negligence section followed the negligence
section.
D. The Jury Instructions and Verdict
The trial court instructed the jury on the liability causes of
action. The instructions included modified versions of CACI No.
407 (comparative negligence), CACI No. 430 (causation:
substantial factor), CACI No. 434 (negligence: alternative
causation), CACI No. 440 (negligence by unreasonable force by
law enforcement officer), CACI No. 1304 (self-defense), and CACI
No. 1305 (battery by peace officer). The jury returned a verdict
the same day, finding that DeJongh had not used unreasonable
force against Romero, but Hynes had.
E. Plaintiffs Propose, and the Parties Agree to, a Special
Interrogatory
The following day defendants moved for a directed verdict
on the ground that plaintiffs had not proved that Hynes’s conduct
caused Romero’s death. Defendants argued that because the jury
had been instructed in CACI No. 1305 that battery required a
finding that the defendant’s use of unreasonable force was a
substantial factor in causing Romero’s “harm,” as opposed to his
death, the jury had not found that Hynes caused Romero’s death.
Defendants argued plaintiffs had not proved Romero “would not
9
have died if Officer Hynes never fired” and that therefore
plaintiffs had not proved wrongful death and could not recover
wrongful death damages.
The court took defendants’ motion under submission. The
trial proceeded to the damages phase with testimony from Ashlee
Romero and Jose Romero’s former wife, followed by closing
arguments and jury instructions. The jury began deliberating on
damages.
As the jury deliberated, the court and counsel discussed the
liability phase verdict:
[COURT:] So the special verdict form that they
answered yes to with respect to Officer Hynes on
question number 1 tells them, “If you answer yes as
to either or both, then stop here, answer no further
questions and move on,” nothing about whether or
not that caused his death.
[PLAINTIFFS’ COUNSEL:] [I] think that—are you
asking if there was evidence about his death?
[COURT:] No.
[PLAINTIFFS’ COUNSEL:] Okay.
[COURT:] It’s just the jury hasn’t answered that
question. . . . [I]f Ashlee can only recover for wrongful
death, where is their finding that they—that Officer
Hynes caused—that the battery caused his—
[PLAINTIFFS’ COUNSEL:] [W]e had that specific—
we had proposed a proximate cause question for the
battery, if the court may remember, and then
[defense counsel] said . . . it’s assumed, Your Honor, if
they accept the battery.
And then I specifically said, “Okay. As long as you
are not going to . . . surprise me with an appeal later,
I’ll stipulate to there not being a causation question.”
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. . . [W]e had the causation question, [defense
counsel] agreed that it would be subsumed, there
would be causation and a Bane Act violation if there
was a finding of battery . . . .
[M]y point is, Your Honor, for them to come back
now—
[COURT:] Well, the question you proposed was,
“Were any of the following defendants’ use of
unreasonable force a substantial factor in causing
harm to Jose Romero?”
[PLAINTIFFS’ COUNSEL:] For the battery.
[COURT:] If I had given them that, sure, it caused
him harm, but did it cause his death?
[PLAINTIFFS’ COUNSEL:] [T]he only harm at issue
was the death.
[COURT:] But you have to prove that[,] that . . . the
battery killed him. . . . I didn’t think the jury was
going to find one officer and not the other. . . . [B]ut
the jury would have to find that a shot or shots that
they considered the battery killed him.
[PLAINTIFFS’ COUNSEL:] [W]e offered—and I
argued—
[COURT:] I’m not talking about evidence, I’m talking
about whether or not the jury has found that. . . .
[DEFENSE COUNSEL:] [F]irst of all, the jury
instruction itself that was agreed to by the parties—
aside from the verdict form, 1305 says harm to Jose
Romero. It doesn’t say Mr. Romero’s death. So the
law they were applying is harm, and bullets can
cause harm short of death. . . .
[T]he stipulation was that if there was a finding on
reasonable force, we stipulated that it would cause
11
harm. That’s why it wasn’t a substantial factor issue
on the verdict form.
We were never stipulating that it caused death, and
we didn’t call Dr. Poukens [the coroner] in. The
plaintiffs called Dr. Poukens in, and they elicited the
evidence that there was more than one fatal shot,
including shot number 2 as numbered by Dr.
Poukens, which, the only reasonable inference, came
from Officer DeJongh, whose force was reasonable,
and they did not elicit testimony from Dr. Poukens
that the entirety of the shots killed him.
He said there was a fatal shot. That’s reasonable. . . .
[W]e don’t know what the jury has found at this
point, which is why we said it’s a failure of proof of
causation of death. . . .
[COURT:] I’m not suggesting any ruling on my part
on the current motion or any future motion. But we
still have this jury, and I’m wondering if there’s
any way to fix this. Because there’s a problem here
that . . . I didn’t foresee, that they would find that one
officer committed a battery and the other officer
didn’t.
[PLAINTIFFS’ COUNSEL:] [W]e could ask them . . .
an interrogatory about the cause of death. “Yes or
no, did Officer Hynes’ shooting cause Jose Romero’s
death?”. . .
[COURT:] [S]omething to the effect, “Did any shot
fired by Officer Hynes that the jury believed
constituted a battery cause the death of the
decedent?”
[DEFENSE COUNSEL:] Something like that, Your
Honor.
[COURT:] You guys want to work on something? . . .
[I]f you’ll agree—but I think there’s a real problem
12
here. . . . [A]gain, I’m not making any rulings, but I
don’t know about you, but I don’t want to try this
case again. So . . . if you can agree on something, why
don’t you start working on that and see if you can
agree on something.
After a short recess, the trial court read the following
special interrogatory to counsel: “Have plaintiffs proved that any
shot or shots fired by Officer Hynes that you found unreasonable
caused Jose Romero’s death?” Plaintiffs’ counsel did not object
and defense counsel stated, “correct.” The record does not reflect
which party drafted the special interrogatory, or if the court did,
but both counsel initialed it.
The trial court summoned the jury and instructed them:
[COURT:] All right. So I made a mistake. The
special verdict form that you got originally where you
answered question number 1 as to Officer DeJongh
and Officer Hynes, and you answered yes to Officer
Hynes and no to Officer DeJongh, that finding that
you made has left us—me in a bit of a quandary
about which of the shots caused the harm.
You heard the attorneys talking about the harm to
Ashlee Romero and the death of Jose Romero. So I’m
going to ask that you stop deliberating on damages
and I’m going to give you what we’re going to call a
special interrogatory. It’s one question, okay? And it
is, “Have plaintiffs proved that any shot or shots fired
by Officer Hynes that you found unreasonable caused
Jose Romero’s death?” . . .
So you can go back to the jury deliberation room. You
can start deliberating on the question that I just read
to you, and we’ll have the form in to you in just a few
minutes.
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F. Plaintiffs Reiterate Their Stipulation to the Special
Interrogatory
After the jury began deliberating on the special
interrogatory, plaintiffs’ counsel expressed reservations. The
trial court gave plaintiffs the opportunity to withdraw their
agreement to the interrogatory. Plaintiffs reiterated that they
agreed:
[PLAINTIFFS’ COUNSEL:] [F]or the record, earlier
I voiced my objection. I made my point about waiver.
. . . [M]y position still is that that had been waived.
[COURT:] Then we can’t do this. Look, if you object
and you want to stand on the verdict as it is, fine. I’ll
call them back in and start deliberating on—I
thought we all agreed. If you have an objection—tell
[the clerk] to bring them back in. Then they just go
on damages.
[PLAINTIFFS’ COUNSEL:] We’re fine, Your Honor.
[COURT:] Seriously, . . . I understand you don’t like
it, but—and if you want to stand on the verdict . . . as
it is, then we will do that. Otherwise . . . but you
both have to stipulate we’re going to do this. If we’re
not going to do this, then we’re not going to do this. I
thought you all agreed. But if you don’t, if you object,
I will—we’ll bring them right back in here.
[PLAINTIFFS’ COUNSEL:] We’re good, Your Honor.
We’ll stipulate.
G. The Trial Court Reinstructs the Jury with a Modified
Substantial Factor Instruction, at Plaintiffs’ Request
During deliberations on the special interrogatory, the jury
asked: “If no sequence of shots were provided to the jury, how are
we, the jury, going to be able to make an informed decision?” The
14
parties agreed that the coroner’s testimony and the burden of
proof instruction (CACI No. 200) should be read to the jury.
The following day, plaintiffs’ counsel asked the trial court
to re-read the alternate cause instruction (CACI No. 434).
Plaintiffs’ counsel withdrew the request after the trial court and
defense counsel observed that CACI No. 434 was a negligence
instruction, not a battery instruction. Plaintiffs’ counsel agreed,
and asked the court to re-read the substantial factor instruction
(CACI No. 430).
The court and counsel discussed substantial factor at
length. The parties ultimately stipulated to instructing the jury
with a modified version of the previously given substantial factor
instruction, replacing “harm” with “death.” After that
instruction, and following further deliberations, the jury
answered “no” to the special interrogatory, finding that plaintiffs
had not proved that any shot fired by Hynes that the jury found
unreasonable had caused Jose Romero’s death.
After taking the verdict, the trial court asked counsel if
there was “[a]ny reason why [the court] can’t excuse these
jurors?” Both counsel responded no, and the court discharged the
jury. The court subsequently entered judgment for defendants.
Plaintiffs moved for a new trial, which the trial court
denied. Plaintiffs timely appealed.
DISCUSSION
A. Standard of Review
“‘The propriety of jury instructions is a question of law that
we review de novo. [Citations.]’ Similarly, a special verdict’s
correctness is analyzed as a matter of law and therefore subject
to de novo review.” (Jackson v. AEG Live, LLC (2015)
15
233 Cal. App. 4th 1156, 1187.) “A court’s instruction to the jury to
deliberate further to correct a potentially ambiguous or
inconsistent verdict is reviewed for abuse of discretion.”
(McCoy v. Gustafson (2009) 180 Cal. App. 4th 56, 91.)
B. Plaintiffs Approved the Special Verdict Form and Forfeited
Any Defect in the Verdict
The Romero plaintiffs argue the special verdict form
precluded the jury from determining whether either officer had
acted negligently once the jury found Hynes had used
unreasonable force. We agree the verdict form incorrectly
instructed the jury not to deliberate on negligence as to DeJongh
after the jury found he had not used unreasonable force.
Plaintiffs, however, expressly approved the verdict form.
Plaintiffs also did not request that the jury deliberate on
negligence as to DeJongh after the jury found DeJongh had not
used unreasonable force, or after the jury’s special interrogatory
finding as to Hynes.
The battery section of the verdict form instructed the jury
that if it found that either officer used unreasonable force, the
jury should stop and answer no further questions, i.e., the jury
should not proceed to the negligence questions. If the jury found
that neither officer had used unreasonable force, the form
instructed the jury to proceed to the negligence questions.
The jury found that DeJongh had not used unreasonable
force, but Hynes had. In accordance with the form’s instructions,
the jury did not answer any further questions on the form. Thus,
despite finding that DeJongh had not used unreasonable force,
the jury did not continue to the negligence questions as to
DeJongh. It should have.
16
Plaintiffs agreed to the verdict form, however. The trial
court specifically instructed counsel to review the final verdict
form and stated, “[i]f it’s agreeable to you, then one attorney from
each side initial the corner of each page.” Plaintiffs’ counsel
initialed the verdict form. Plaintiffs’ express agreement to the
form waived their claim of verdict form error on appeal. (See
Morales v. 22nd Dist. Agricultural Assn. (2016) 1 Cal. App. 5th
504, 534 [objection to form of questions in special verdict
generally must be raised in trial court or issue is waived on
appeal].)
Even more significantly, plaintiffs had ample opportunity
to remedy the erroneous verdict form instructions before the trial
court discharged the jury. Plaintiffs did not do so.
Following the jury’s verdict on the use of unreasonable
force as to battery, plaintiffs proposed, and the parties agreed to,
the special interrogatory asking whether plaintiffs had proved
that any shot Hynes fired that the jury found unreasonable had
caused Romero’s death. The jury answered no. At that point, the
jury had found that neither DeJongh nor Hynes was liable for
battery.2
At no point after the jury’s unreasonable force verdict or its
special interrogatory finding did any party ask the trial court to
direct the jury to deliberate on the negligence cause of action. Of
particular note, the record does not contain any discussion of the
negligence cause of action after the jury’s finding on the special
2 The Romero plaintiffs contend that by finding Hynes used
unreasonable force, the jury rejected Hynes’s self-defense
affirmative defense and necessarily found that Hynes caused
Romero’s death. The jury found the opposite; in the special
interrogatory, the jury found that none of the shots Hynes fired
that the jury found unreasonable caused Romero’s death.
17
interrogatory. The trial court announced the special
interrogatory finding, asked counsel if there was any reason the
court should not excuse the jury, and, with neither party
objecting, discharged the jury.
“‘Failure to object to a verdict before the discharge of a jury
and to request clarification or further deliberation precludes a
party from later questioning the validity of that verdict if the
alleged defect was apparent at the time the verdict was rendered
and could have been corrected.’” (Keener v. Jeld–Wen, Inc. (2009)
46 Cal. 4th 247, 263-264, citation, fn., and italics omitted
(Keener).) “The obvious purpose for requiring an objection to a
defective verdict before a jury is discharged is to provide it an
opportunity to cure the defect by further deliberation.” (Juarez v.
Superior Court (1982) 31 Cal. 3d 759, 764-765.)
Here, “‘the alleged defect was apparent at the time the
verdict was rendered and could have been corrected.’” (Keener,
supra, 46 Cal.4th at p. 264, italics omitted.) Plaintiffs knew they
had both battery and negligence causes of action and stated
throughout the trial that they were pursuing both causes of
action. Plaintiffs’ counsel argued in closing argument that if the
jury did not find battery, “you move on to negligence.” The court
instructed the jury on both battery and negligence, and the
special verdict form stated that if the jury answered “no” to the
battery question for both officers, the jury should move to the
negligence questions. When the jury made its finding on the
special interrogatory on the battery cause of action, it was
apparent the jury had not deliberated on the negligence cause of
action because the only findings the jury had made pertained to
battery.
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This defect in the verdict could have been easily remedied.
Had plaintiffs brought to the trial court’s attention that, because
the jury had found both officers not liable for battery, the jury
should deliberate on the negligence cause of action, the trial court
could have instructed the jury to do so. Instead, plaintiffs did not
object that the jury had not considered negligence and did not
object to the trial court’s discharging the jury after the verdict on
the special interrogatory. Plaintiffs’ failure to request that the
jury deliberate on negligence after the jury found no battery
precludes the Romero plaintiffs from challenging the verdict
now.3
C. The Romero Plaintiffs Invited Any Error Regarding the
Special Interrogatory
The Romero plaintiffs argue the trial court should have
enforced defendants’ substantial factor stipulation and the trial
court abused its discretion in giving the special interrogatory.
The Romero plaintiffs also contend the trial court lacked
authority to reinstruct the jury with the modified substantial
factor instruction.
It is well settled that trial judges have the discretion—even
the obligation—to require the jury to correct or clarify a
potentially ambiguous verdict. (Mendoza v. Club Car, Inc. (2000)
81 Cal. App. 4th 287, 303.) “Where the discrepancy is identified
before the jury is discharged, the court retains control of the jury
and may, pursuant to [Code of Civil Procedure] section 619, use
its power to correct the verdict before it becomes final. [Citation.]
In fact, it is the court’s duty in such a case to attempt to remedy
3 The Romero plaintiffs’ argument that the judgment in favor
of DeJongh should be reversed because the jury did not consider
whether DeJongh was negligent fails for the same reason.
19
the situation.” (Ibid., italics omitted.) We need not determine
whether the trial court abused its discretion in giving the special
interrogatory and the modified substantial factor instruction,
however, because plaintiffs invited any alleged error.
“The doctrine of invited error prevents a party from
asserting an alleged error as grounds for reversal when the party
through its own conduct induced the commission of the error.”
(County of Los Angeles v. Southern Cal. Edison Co. (2003)
112 Cal. App. 4th 1108, 1118.) The doctrine “applies ‘with
particular force in the area of jury instructions,’” and “bars an
appellant from attacking a verdict that resulted from a jury
instruction given at the appellant’s request.” (Stevens v. Owens-
Corning Fiberglas Corp. (1996) 49 Cal. App. 4th 1645, 1653;
accord, Jentick v. Pacific Gas & Electric Co. (1941) 18 Cal. 2d 117,
121 [“defendant cannot attack a verdict resulting from an
erroneous instruction which it promoted”]; Fortman v. Hemco,
Inc. (1989) 211 Cal. App. 3d 241, 255 [jointly-requested
instructions]; Gherman v. Colburn (1977) 72 Cal. App. 3d 544, 567
[jointly-requested instruction].)
Following the jury’s finding that Hynes had used
unreasonable force, plaintiffs proposed “an interrogatory about
the cause of death. ‘Yes or no, did Officer Hynes’ shooting cause
Jose Romero’s death?’” The trial court and defense counsel
agreed, both counsel initialed the special interrogatory, and the
court read the interrogatory to the jury.4
4 The Romero plaintiffs claim the trial court’s prefatory
statements before reading the special interrogatory improperly
shifted the burden of proving the substantial factor element to
plaintiffs. Plaintiffs bore the burden of proving the unreasonable
force the jury found was a substantial factor in causing Romero’s
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When, notwithstanding counsel’s prior agreement,
plaintiffs’ counsel subsequently expressed reservations about the
special interrogatory, the trial court offered plaintiffs the
opportunity to withdraw the special interrogatory and “stand on
the verdict as it is.” The court told counsel it would not proceed
with the special interrogatory if both counsel did not agree.
Plaintiffs could have elected at that time to withdraw their
agreement to the special interrogatory, “stand on the verdict as it
[was],” and argue that defendants’ stipulation meant the jury had
found Hynes liable for wrongful death battery. Plaintiffs’ counsel
chose instead to reiterate plaintiffs’ agreement to the special
interrogatory.
During the deliberations on the special interrogatory, the
parties stipulated to the court’s re-reading the substantial factor
instruction, replacing “harm” in the instruction with “death.”
Plaintiffs’ counsel agreed that “clarification as to what
substantial factor is is [sic] appropriate” and specifically
requested that the court replace “harm” with “death.”
Plaintiffs proposed and stipulated to the special
interrogatory, and rejected an opportunity to withdraw their
agreement and stand on the verdict and defendants’ substantial
factor stipulation. Plaintiffs also agreed both that the court
should reinstruct the jury on substantial factor and to the specific
modification to the instruction. The invited error doctrine
death. Furthermore, plaintiffs did not object to the trial court’s
brief remarks, which, in any event, did not address the burden of
proof.
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precludes plaintiffs from asserting these alleged errors as
grounds for reversal now.5
DISPOSITION
The judgment is affirmed. Respondents shall recover their
costs on appeal.
MCCORMICK, J.
We concur:
SEGAL, Acting P. J.
FEUER, J.
5 The Romero plaintiffs argue the trial court erred in
declining plaintiffs’ request to reinstruct the jury on the alternate
cause negligence instruction (CACI No. 434). Plaintiffs asked the
court to re-read that instruction while the jury deliberated on the
special interrogatory. The court and defense counsel noted that
the instruction was a negligence instruction and the jury was
deliberating battery. Plaintiffs’ counsel agreed and withdrew the
request. The trial court did not err in failing to re-read the
alternate cause instruction after plaintiffs withdrew their request
for a re-reading.

Judge of the Orange County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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