[CERTIFIED FOR PARTIAL PUBLICATION* ]
OPINION
EGERTON, J. —
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,
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 52.1. 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 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 [135 Cal.Rptr.3d 200].)
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.
After a struggle, the deputies maneuvered Burley to a prone position, facedown 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 facedown 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 CPR.
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 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.-3.
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4. Civil Code Section 1431.2 Mandates Comparative Fault Apportionment, Even When Tortious Conduct Is Intentional
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 [44 Cal.Rptr.3d 66] (Thomas). Thomas holds that section 1431.2 does not apply to an intentional tortfeasor's liability in a personal injury case. (Thomas, 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 [85 Cal.Rptr.3d 506] ["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.
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.)
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. (Thomas, 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
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 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
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.
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 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.)
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 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 [183 Cal.Rptr.3d 654] (Allen) [holding allegation of "a wrongful arrest or detention, without more, does not" state a claim for violation of the Bane Act].)
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 intentional threats, intimidation, or coercion, any other limitation that might be derived from the
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 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
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.) 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.)
"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 [196 Cal.Rptr.3d 848]; see U.S. Const., 4th Amend.; see also Graham v. Connor (1989) 490 U.S. 386, 394 [104 L.Ed.2d 443, 109 S.Ct. 1865].) 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 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*
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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 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. The order denying Plaintiffs' motion for attorney fees under Code of Civil Procedure section 1021.5 is affirmed.
Edmon, P. J., and Dhanidina, J.,
FootNotes
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 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 Co. (1975) 13 Cal.3d 804 [119 Cal.Rptr. 858, 532 P.2d 1226]; American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578 [146 Cal.Rptr. 182, 578 P.2d 899]; Allen v. Sundean (1982) 137 Cal.App.3d 216 [186 Cal.Rptr. 863]; Godfrey v. Steinpress (1982) 128 Cal.App.3d 154 [180 Cal.Rptr. 95].) The Heiner court's dictum is not persuasive on a point that neither it, nor the authorities it relied upon, addressed.
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 [70 Cal.Rptr.2d 844, 949 P.2d 941] [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 [225 Cal.Rptr.3d 356] (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 of 1979] 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.
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