Opinion
C079007
07-13-2017
STEVEN RICHARD ALLGOEWER, Plaintiff and Respondent, v. T. FREITAS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 39200800187830CUCRSTK)
Plaintiff Steven Allgoewer brought this action against two City of Tracy police officers -- Trevin Freitas and Nestor Mejia -- for using excessive force in arresting him. A jury found that Freitas, but not Mejia, used excessive force, and the jury awarded Allgoewer $90,000 for past medical expenses but no general damages. The trial court denied Freitas's motions for a new trial and judgment notwithstanding the verdict, but granted Allgoewer's motion for a new trial on the issue of damages after Freitas refused to consent to an award of $200,000 in general damages.
On appeal, Freitas contends: (1) there was insufficient evidence that he used excessive force in arresting Allgoewer; (2) he was entitled to qualified immunity; (3) the trial court prejudicially erred in instructing the jury; and (4) the jury's verdict indicates an impermissible compromise on liability and damages.
We find no merit in Freitas's first three arguments, but we agree with him that the trial court should have granted him a new trial on all issues because it reasonably appears that the jury's verdict was the result of an improper compromise. Accordingly, we will reverse with directions.
FACTUAL AND PROCEDURAL BACKGROUND
We set forth the basic procedural background and a summary of the evidence at trial here. Later, we will set forth additional procedural details in connection with Freitas's arguments of instructional error.
This case arises from an arrest in June 2007. In July 2008, Allgoewer commenced this action against the two officers. A jury trial was held in January 2011, but the trial court granted a motion for nonsuit on the fourth day of trial. This court reversed. (Allgoewer v. City of Tracy (2012) 207 Cal.App.4th 755.)
The City of Tracy was also a defendant in the action but the jury ultimately found in favor of the city. As necessary, we will refer to the two officers and the city jointly as defendants.
The case came to trial again in January 2015 and was tried over the course of eight days. As relevant here, the evidence was as follows:
Officer Freitas testified that he arrived at Allgoewer's home around 6:00 p.m., about the same time that Officer Mejia did, in response to a call about a child custody dispute. Allgoewer was gardening in the front yard, and the officers engaged him in conversation. The officers were trying to determine if Allgoewer was in violation of a custody order. According to Freitas, Allgoewer was upset and angry but not threatening at that time. Eventually, Allgoewer went into the house and brought back some documents to show that he had a right to custody of his daughter. The documents did not satisfy the officers because Mejia ultimately told Allgoewer that his daughter was going to have to go back with Allgoewer's ex-wife. Allgoewer picked up his belongings, which included a hand rake, and walked away, and the officers followed him. The officers repeatedly told Allgoewer to drop the hand rake and not go in the backyard but he did not comply with their instructions, so Freitas decided to try to detain him. Freitas told Allgoewer he was going to have to put down the rake or Freitas would "tase" him. Then, without telling Allgoewer he was under arrest, Freitas grabbed Allgoewer's right hand and dislodged the hand rake and took Allgoewer to the ground with a "leg sweep." Allgoewer landed on pea gravel in "kind of a quasi-pushup position." According to Freitas, Allgoewer pulled his arms into his body. Freitas was across Allgoewer's back, trying to get ahold of Allgoewer's wrist and got his arms behind his back and into handcuffs. Freitas denied choking Allgoewer. Eventually, the officers managed to place Allgoewer in handcuffs.
Officer Mejia testified that he went to Allgoewer's residence and told Allgoewer he was there to investigate a court order violation. Allgoewer "was visually pretty upset" and "kind of started yelling at" Mejia. When Freitas dislodged the hand rake from Allgoewer's right hand, Mejia rushed in to grab Allgoewer's left arm but let go as Freitas took Allgoewer to the ground. As Freitas tried to get ahold of Allgoewer's left arm, Mejia positioned himself on Allgoewer's right and tried to get ahold of his right arm. At some point, however, Mejia let go of Allgoewer's arm and reached for his Taser. He first applied the Taser to the right side of Allgoewer's body. According to Mejia, Allgoewer pushed the Taser away after a second or two. Mejia then applied the Taser a second time to Allgoewer's leg. When Mejia applied the Taser the second time, Allgoewer brought his hand back, and he was placed in handcuffs.
For his part, Allgoewer testified that he heard the officers tell him to stay outside and put the gardening tool down, but he did not comply and told them, "Come on in." "How am I going to get her," because he was going inside to get his daughter for them. As soon as he turned away from the officers, he found himself airborne. He landed in a pushup position with Freitas on his back, and Freitas's right arm came up under his neck. Freitas had "his forearm . . . across the front of [Allgoewer's] throat," and Freitas was "lifting up" Allgoewer's "throat and kind of had [Allgoewer's] head up." When Allgoewer "went to breathe [he] realized [Freitas] had [his] throat shut." His voice changed because he was being choked, and "at first [he] couldn't breathe at all," but he struggled to get his right hand between the ground and his chest so that he could pull Freitas's arm down, then he tucked his chin to block Freitas from putting his arm around his neck again. Freitas "pulled up one more time but [Allgoewer's] chin was there, and [Freitas] hopped on [Allgoewer's] back with his knees on the back of [Allgoewer's] shoulders." Allgoewer denied that his hands were ever pulled close to him, except when the Taser was administered. He claimed he used his right hand to remove Freitas's arm from his throat, but his left arm remained in the pushup position. Freitas grabbed his left wrist and tried to pull his arm behind his back, but Allgoewer could not comply because of Freitas's weight on his back. Allgoewer screamed because he felt a bad tear in his shoulder because Freitas forced his arm down trying to put it behind his back. When he began to tell Freitas he could not do what Freitas wanted him to, the Taser was applied to him. At that time, he "tightened up," which caused the arm Freitas was trying to put behind his back to pull back in. Allgoewer screamed again because when Freitas pulled his arm back, Allgoewer felt a "real burn" in his bicep area, then the Taser was applied again. Eventually, the officers handcuffed him.
Allgoewer also offered in evidence an audio recording Freitas made during the incident, which was played for the jury during Freitas's testimony and Allgoewer's testimony. On the recording, Freitas can be heard saying to Allgoewer, "You know what, you are going to put it down right now, or I will tase you." Allgoewer says something in response, just as Freitas moves in to perform the leg sweep and take Allgoewer to the ground. The sounds of a physical struggle can then be heard, with Allgoewer saying, "Don't break my glasses, sir," "What're you doing, sir?" and "Why are you doing this to me?" Allgoewer then says "You're chokin' me" in a manner suggesting that something was at least partially restricting or compressing his throat. He then appears to say something like "Okay, I'm fine, I'll go with you" more clearly, suggesting the restriction on his throat had been removed. As the officers direct him to "stop resisting" and to "put [his] arms behind [him]," Allgoewer shouts "My shoulder" and begins screaming in apparent pain, eventually telling the officers repeatedly that he "ha[s] a bad shoulder" and "can't put it back."
That the leg sweep and take-down occurred just after Freitas threatened to "tase" Allgoewer is confirmed by Freitas's testimony, as follows:
"Q. But you heard the incident that took place right when you said, 'I will tase you,' right? And then that's when you went in for the arm hold and leg sweep, correct?
"A. That is right when you see me moving forward, correct."
On the issue of the medical treatment he received following his arrest, Allgoewer offered into evidence the video depositions of several physicians. For their part, defendants offered the testimony of a trainer for the Tracy Police Department and an expert in the field of police training, policies, procedures, and methods of arrest.
As to the two officers, the case was submitted to the jury on claims of excessive force under the Fourth Amendment, assault, battery by a police officer, and intentional infliction of emotional distress. Allgoewer's attorney argued for an award of $90,000 in economic damages for past medical costs. He also argued that the jury should award an additional amount, in its discretion, for general damages for past and future physical pain, mental suffering, and emotional distress.
This claim was asserted under section 1983 of title 42 of the United States Code.
The instructions told the jurors that if they decided Allgoewer proved his claim against defendants, the jury "must decide how much money will reasonably compensate [Allgoewer] for the harm" and "[t]he amount of damages must include an award for each item of harm that was caused by . . . defendants' wrongful conduct." The instructions further informed the jury that "[t]he damages claimed by" Allgoewer fell "into two categories called economic and noneconomic damages" and that the noneconomic damages claimed by Allgoewer included "[p]ast and future physical pain/mental suffering/loss of enjoyment of life/disfigurement/physical impairment/inconvenience/grief/anxiety/humiliation/emotional distress."
On January 26, 2015, the jury returned its verdict. In a special verdict, the jury found by a vote of 9-3, with respect to the section 1983 and battery causes of action, that Freitas had used excessive and unreasonable force in arresting Allgoewer and that force was a substantial factor in causing harm to Allgoewer. By the same margin, the jury awarded Allgoewer $90,000 in past economic damages (for medical expenses) but no general damages. The jury found against Allgoewer on his remaining claims, including all of his claims against the city and Mejia and on his claims of assault and intentional infliction of emotional distress against Freitas.
After the verdict was recorded, the court sent the jury back to answer some special interrogatories. In answer to those interrogatories, the jury found by a vote of 9-3 that the leg sweep by Freitas was a substantial factor that caused Allgoewer's harm. The jury also found unanimously that before Freitas used the leg sweep on Allgoewer, (1) Allgoewer said he was not going to calm down; (2) the officers repeatedly told Allgoewer to put down his hand rake; (3) Allgoewer did not put down the hand rake; and (4) Allgoewer turned while still holding the hand rake.
The trial court entered judgment on the special verdict on February 9, 2015. On February 24, Freitas moved for judgment notwithstanding the verdict on the grounds that: (1) there was insufficient evidence to support the jury's finding that he used excessive force; and (2) he was entitled to qualified immunity. The first argument applied to Allgoewer's section 1983 cause of action and his battery cause of action; the second argument applied only to the section 1983 cause of action.
In arguing qualified immunity first, Freitas addressed separately the leg sweep, the choking, and the control hold. On the subject of the choking, Freitas contended "the choking allegations should be disregarded" because he denied using a choke hold, there was no medical evidence Allgoewer was choked, and Allgoewer was talking so there could have been no choking. Freitas then contended that even if Allgoewer was choked, the choking was inadvertent, and "it was not clearly established at the time of the incident that such an inadvertent maneuver was unconstitutional."
In arguing that the force he used was reasonable as a matter of law, Freitas argued that the leg sweep, "inadvertent alleged choking," and control hold were all reasonable under the circumstances.
In addition to moving for judgment notwithstanding the verdict, Freitas also moved for a new trial. As relevant here, Freitas argued that: (1) the undisputed evidence demonstrated as a matter of law that the amount of force he used on Allgoewer was reasonable; (2) the trial court erred in refusing to instruct the jury that Allgoewer's arrest was lawful; (3) the trial court erred in refusing to give a modified version of the form instruction on excessive force; and (4) the jury's verdict was indicative of an impermissible compromise of liability and damages.
In arguing that the force he used was reasonable as a matter of law, Freitas asserted that because the jury's award of special damages "matched Allgoewer's medical bills for his injuries to his shoulder and wrist[,] both of which he testified he hurt in the fall," and because "Allgoewer suffered no new injuries during Freitas' attempts to handcuff him or from the choke," the control hold and "alleged choke" did not lead to the jury's verdict. Nevertheless, Freitas contended all of the force he used was reasonable for the reasons set forth in his motion for judgment notwithstanding the verdict.
Regarding the compromise verdict, Freitas argued that the jury's award of no general damages, despite "uncontested evidence as to [Allgoewer's] pain and suffering," when viewed together with the jury's award of $90,000 in past medical damages, and considered along with the fact that liability was "vehemently contested" and the jury split 9-3, showed that the jury was "attempting to find a compromise verdict and in so doing not following the law."
In April 2015, the trial court denied Freitas's motions. In ruling on the new trial motion, the trial court determined there was no error in refusing to instruct the jury that Allgoewer's arrest was lawful because: (1) the jurors were advised that the lawfulness of the arrest was not before them and there was no allegation pending in the complaint that the arrest was unlawful; (2) such an instruction might have shown bias toward one side or the other; and (3) in any event defense counsel was permitted to argue to the jury that the arrest was lawful. The court also found no error in the refusal to give a modified version of the form instruction on excessive force because the jury was "given sufficient instructions and counsel was given wide leeway in arguing the factors related to the reasonableness of the behavior of the officers and [Allgoewer]."
As to the sufficiency of the evidence to support the jury's finding that Freitas used unreasonable force, the trial court found "there was sufficient evidence to support the verdict that the leg sweep constituted excessive force and that a battery was committed." The court reasoned that because the evidence showed the hand rake was dislodged first, the jury could have reasonably found that the leg sweep was not necessary or reasonable. The court did not discuss the choking or the control hold.
The court did not expressly address Freitas's argument that the verdict showed an impermissible compromise of liability and damages.
In ruling on the motion for judgment notwithstanding the verdict, the trial court incorporated its analysis of the sufficiency of the evidence from the court's ruling on the new trial motion. On the issue of qualified immunity, the court again focused exclusively on the leg sweep and concluded that "the state of the law was clearly established at the time of this incident and gave Officer Freitas sufficiently fair notice that utilizing the leg sweep without first attempting the less intrusive method of attempting handcuffing was unreasonable," particularly given that Allgoewer "was not advised he was under arrest."
For his part, Allgoewer moved for additur based on the jury's failure to award any noneconomic damages. The court conditionally granted Allgoewer's motion for additur, proposing to award Allgoewer $100,000 for past general damages and $100,000 for future general damages in addition to the $90,000 in special damages awarded by the jury. Freitas rejected the proposed additur, so the court granted Allgoewer a new trial on the issue of damages.
Additur is "an order by which a plaintiff's motion for a new trial on the ground of inadequate damages is granted unless the defendant consents to a specified increase of the award within a prescribed time." (Jehl v. Southern Pac. Co. (1967) 66 Cal.2d 821, 827, fn. 1.)
Freitas filed a timely notice of appeal from the judgment.
DISCUSSION
I
Sufficiency Of The Evidence Of Unreasonable Force
Freitas first argues on appeal that the judgment against him, both on the section 1983 cause of action and the battery cause of action, must be reversed because his leg sweep was not objectively unreasonable. He acknowledges that the applicable standard of review for this argument is substantial evidence. And, citing Borba v. Thomas (1977) 70 Cal.App.3d 144, 152, he acknowledges that under this standard of review the appellate court " 'must read the record in the light most advantageous to the plaintiff, resolve all conflicts in his favor, and give him the benefit of all reasonable inferences in support of the original verdict.' "
Unfortunately, Freitas does not actually adhere to that standard in presenting his appeal to us. The applicable rule is one of long standing: "Inasmuch as the 'reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact' [citation], and must accept as true all evidence tending to establish the correctness of the findings as made, taking into account, as well, all inferences which might reasonably have been thought by the [finder of fact] to lead to the same conclusion, and resolve every conflict in the testimony in favor of the findings [citations], the burden is on the appellant 'to demonstrate that there is no substantial evidence to support the challenged findings.' [Citations.] A recitation of only [the appellant's] own evidence or a general unsupported denial that any evidence sustains the findings is not the 'demonstration' contemplated under the rule. An appellant 'is required to set forth in his brief all of the material evidence on the point and not merely his own evidence. If this is not done, the error assigned is deemed waived.' [Citation.] We are not required to search the record to ascertain whether it contains evidence that will sustain [the appellant's] contentions." (Green v. Green (1963) 215 Cal.App.2d 31, 35.)
In contravention of this rule, Freitas has not set forth in his brief all of the material evidence on the factual issue of whether the amount of force he used was reasonable or unreasonable. For example, in his statement of facts, Freitas relegates the choking that Allgoewer testified occurred during the arrest to a footnote, asserting only briefly that "Allgoewer complained once that Freitas was 'choking' him" and then emphasizing that "[b]oth officers denied using . . . any kind of 'choke hold' " and that Freitas testified he "might have pressed his arm across the back of Allgoewer's neck," but "as soon as Allgoewer complained, [he] switched positions." Freitas leaves it to us to draw from the record for ourselves Allgoewer's actual testimony: that Freitas had "his forearm . . . across the front of [Allgoewer's] throat," that Freitas was "lifting up" Allgoewer's "throat and kind of had [Allgoewer's] head up," and that Freitas "had [Allgoewer's] head way up, and then when [Allgoewer] went to breathe [he] realized [Freitas] had [his] throat shut." Freitas also ignores Allgoewer's further testimony that his voice changed because he was being choked, (which is supported by the audio recording of the incident), that "at first [he] couldn't breathe at all," and that he struggled to get his right hand between the ground and his chest so that he could pull Freitas's arm down, then tucked his chin to block Freitas from putting his arm around his neck again. While Freitas does, in his footnote, cite the pages on which this testimony appears, he never actually sets forth the actual testimony. And when it comes to arguing the issue of reasonable force, Freitas does not discuss the choking, or his attempts to secure Allgoewer's arms; his entire argument focuses on the leg sweep alone. And he does this even though the audio recording reveals Allgoewer screaming loudly as Freitas was attempting to get his arms behind his back -- something the jury could have taken into account in assessing the reasonableness of the force Freitas was using at that moment.
As another example of Freitas's improper presentation of this matter on appeal, he asserts in his statement of facts, without any citation to the record, that "Allgoewer testified the leg sweep caused various physical injuries, including a broken wrist, torn rotator cuff, and torn bicep." (See Cal. Rules of Court, rule 8.204(a)(1)(C) [each brief must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears"].) But even a brief glance at the record reveals far more than Freitas's brief does. For example, Allgoewer testified that it was "Freitas pulling [his] arm back where [he] felt the burn" in his bicep area. That action by Freitas -- pulling on Allgoewer's arm -- was not part of the leg sweep. As another example, while Allgoewer did testify that when he "hit the ground initially [he] felt [his shoulder] hurt," he followed that up with, "and then when [Freitas] was pulling and ripping [at his arm he] felt it hurt more." Again, Freitas's pulling and ripping at Allgoewer's arm was not part of the leg sweep. And at no point does Freitas address what role his attempts to secure Allgoewer's arms may have played in the injuries Allgoewer suffered, nor does he address the potential relationship between his choking of Allgoewer, Allgoewer's efforts to free his throat from Freitas's arm hold, and Freitas's efforts to secure Allgoewer's arms, one of which he was using to free his throat from Freitas's hold.
It is true that the jury, in answer to the special interrogatories, specifically found that the leg sweep was a substantial factor that caused Allgoewer's harm. It is also true that in addressing Freitas's claim of evidentiary insufficiency in his motion for judgment notwithstanding the verdict, the trial court focused on the leg sweep alone, finding "there was sufficient evidence to support the verdict that the leg sweep constituted excessive force and that a battery was committed." There is nothing in the record, however, to show that the jury's finding of liability was based on the leg sweep alone, and on appeal we are not concerned with the reason the trial court denied the motion for judgment notwithstanding the verdict. (See Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329 ["it is judicial action, and not judicial reasoning or argument, which is the subject of review; and, if the former be correct, we are not concerned with the faults of the latter"].) Rather, the question for us, as Freitas admits, is whether there is "substantial evidence to support the jury's verdict underlying the judgment." Thus, it was Freitas's burden to show, based on all of the evidence of his conduct during the arrest, that there was insufficient evidence for the jury to find that he used unreasonable force against Allgoewer. As we have explained, however, Freitas's presentation of the evidence, and his arguments based thereon, are too incomplete to meet his burden in presenting a substantial evidence issue for review. (See, e.g., Holguin v. Dish Network LLC (2014) 229 Cal.App.4th 1310, 1327 [finding appellants did not meet their burden when they did "not set forth all material evidence relating to their contentions" and did "not attempt to analyze the evidence presented at trial in light of the jury instructions actually given"].) Accordingly, we conclude Freitas has failed to show that there was no substantial evidence to support the jury's findings that the force he used in arresting Allgoewer was unreasonable.
II
Qualified Immunity
Freitas next argues that the judgment against him on the section 1983 cause of action must be reversed because he was entitled to qualified immunity for his conduct in arresting Allgoewer. "The qualified immunity rule shields public officers from section 1983 actions unless the officer has violated a clearly established constitutional right. This turns on a determination of whether it would be clear to a reasonable officer that his conduct was unlawful under the circumstances he confronted." (Mendoza v. City of West Covina (2012) 206 Cal.App.4th 702, 711.)
Freitas admits that qualified immunity applies, if at all, only to Allgoewer's section 1983 cause of action under federal law and not to Allgoewer's state law cause of action for battery. Of course, this raises the question of why the issue of qualified immunity matters at all, since, even if it applies here, it will not absolve Freitas of his liability on the battery cause of action and thus will not relieve Freitas from the damages the jury awarded (which applied equally to both causes of action). The parties do not offer an answer to this question, but it may relate to a motion for attorney fees Allgoewer filed following the verdict against Freitas. Attorney fees "are awardable in section 1983 cases litigated in California state courts cases." (Board of Administration v. Wilson (1997) 57 Cal.App.4th 967, 974.) Thus, if Freitas were to get the judgment against him on the section 1983 cause of action reversed based on qualified immunity, he would, it appears, be free of any liability for attorney fees.
Unfortunately, Freitas's qualified immunity argument suffers from the same flaw as the excessive force argument we just addressed: in arguing that he was entitled to qualified immunity for his conduct, Freitas focuses exclusively on the leg sweep and ignores every other aspect of his conduct during Allgoewer's arrest. Thus, he begins by asserting that "the unlawful nature of [his] leg sweep was not clearly established at all." Later, he says, "[t]he question . . . is whether as of June 18, 2007, [he] would have known, without question and beyond debate, that it was unconstitutionally excessive force under these circumstances to use a leg sweep to disarm Allgoewer and take him into custody." (Italics omitted.) He then proceeds to argue that "[t]he law in June 2007 did not clearly prohibit the use of a leg sweep under these particular circumstances. " (Bolding omitted.)
It is true that in denying Freitas's motion for judgment notwithstanding the verdict on the ground of qualified immunity, the court -- like Freitas does now in this court -- focused exclusively on the leg sweep, but we review the trial court's ruling, not its reasons (see Davey v. Southern Pacific Co., supra, 116 Cal. at p. 329), and thus Freitas's burden on appeal was to persuade us that he was entitled to qualified immunity for all of his conduct during Allgoewer's arrest, such that the trial court's ruling in denying his motion for judgment notwithstanding the verdict was error. Freitas cannot carry that burden by arguing only that he was entitled to qualified immunity for the leg sweep. Accordingly, no error has been shown.
III
Instructional Error
Freitas next argues that his right to a fair trial was prejudiced by instructional error, namely, the trial court's error in: (1) refusing to instruct the jury with language he wanted added to CACI No. 3020, the standard instruction on excessive force; and (2) refusing to instruct the jury that Allgoewer's arrest was lawful. As we will explain, we find no merit in those arguments.
A
Lawfulness Of Allgoewer's Arrest
In May 2014, in ruling on defendants' motion for summary adjudication, the trial court determined that the officers had probable cause to arrest Allgoewer for violation of the custody order and therefore his arrest was lawful.
Before trial in November 2014, Allgoewer moved in limine to preclude any mention of "the findings, order, evidence or any other matter related to" the motion for summary adjudication. On the first day of trial, in argument pertaining to that motion, defense counsel proposed that the jury be told that "there was a lawful arrest." The court and counsel discussed how that would be accomplished, and counsel talked about working on mutually acceptable language.
The next day, following the completion of jury selection, the court and counsel discussed the issue of the arrest further in proceedings that were not recorded. The minutes contain only the following record of that discussion: "The Court and counsel had further discussions regarding the arrest. Counsel may only inform the jury that the issue is not for the jury to decide."
Allgoewer's counsel began his case by calling Freitas to testify. Eventually, counsel examined Freitas about Allgoewer's booking. When Freitas testified that he arrested Allgoewer for brandishing the hand rake, counsel asked Freitas if he knew what brandishing was, and the court sustained an objection from defense counsel. Defense counsel then asked to approach because "we have a motion in limine that we're very close to here." The court adjourned for the day. Outside the presence of the jury, defense counsel argued that Allgoewer's counsel had "crossed the line on the issue of the lawful arrest" by inquiring into the charges that were lodged against Allgoewer. Defense counsel asserted that exploring the charges was irrelevant or more prejudicial than probative unless he was given the opportunity to "at least raise with th[e] jury that this was deemed a lawful arrest," but he was "not inviting [that]" and did not "want it going there." Instead, counsel just "want[ed] to know if he does go there, then, are we going to get instruction that there is law in the case that this was a lawful arrest?"
The court asked Allgoewer's counsel for his "thinking" on the subject. He asserted that the problem was that Freitas was providing narrative answers to his questions, and it was Freitas who "needs to be told what the motions in limine are and what those rules are." The court explained that it thought the questioning by Allgoewer's counsel "was getting a little close to our understanding that we were trying to avoid that area." The court further stated that it did not "think it would be dangerous to tell the jury . . . that there was a lawful arrest and that that's not for them to consider." Defense counsel agreed, asserting "[t]his needs to be explained to the jury that the arrest is not an issue. It's been deemed lawful as a matter of law." He told the court he had a jury instruction prepared on that point.
Allgoewer's counsel reiterated his position that "the Court not instruct the jurors that this Court . . . made a ruling of law, that it was a lawful arrest" because "the lawfulness of this arrest is not at issue, and it's not relevant as to whether it was lawful or not." The court proposed to tell the jury as follows: "It is not an issue for you to determine whether the arrest was lawful or not. There is no allegation pending in the complaint that this was an unlawful arrest." Defense counsel responded, "I'll submit to that, Your Honor." He then asked if the court would include that in the jury instructions, and when the court said, "I'm going to tell them, and we'll see what happens," counsel responded, "That's fair."
The following morning, before the resumption of Freitas's testimony, the court read the following to the jury: "It is not an issue for the jury to decide in this case whether the arrest was lawful. There's no allegation that is pending in the complaint before this Court that this is an unlawful arrest, okay? In case you were wondering about that, okay?"
At some point thereafter, one of the jurors submitted a note to the court that read as follows: "Does the plaintiff have a right to enter the backyard if not under arrest or do the police have a right to prevent you from entering and closing the [gate] and is it pertinent?" The court stated on the record that the court and counsel had discussed the matter off the record and had decided to look at the jury instructions that were being worked on before the court responded to the juror's note. In response, defense counsel asserted that especially in light of the expected testimony of his experts, he needed "the jury to understand this is deemed a lawful arrest for probable cause." He asked that the jury be given that answer to the juror's question "now but at a minimum before they go and start deliberating." Allgoewer's counsel took the position that the court should not say anything at all "[o]ther than repeating the original statement of lawful arrest is not a cause that needs to be decided by you." The court did not say anything right away.
Later, during the discussion of jury instructions, defense counsel reiterated his request that "the jury be informed probable cause for the arrest is not in dispute and has been determined as a matter of law." The court responded, "I have told the jury on several occasions that they don't need to decide the issue of whether it was a lawful arrest or not, and I think that's sufficient. . . . [¶] [B]ut [defense counsel] can get up and say it has already been decided that this was a lawful arrest, okay."
Ultimately, the instructions to the jury included the following: "The lawfulness of Plaintiff's arrest is not before you. Probable cause existed for Plaintiff's arrest."
On appeal, Freitas contends the trial court erred in refusing to instruct the jury that Allgoewer's arrest was lawful. He claims this was error because the court is "required" "to specifically tailor the law to the facts of the case." He further contends the court's error was prejudicial because the failure to instruct the jury that the arrest was lawful led to jury confusion and uncertainty.
We are not persuaded. In support of the proposition that the court must "specifically tailor the law to the facts of the case," Freitas cites two cases, neither of which is apposite. In the first -- Self v. General Motors Corp. (1974) 42 Cal.App.3d 1, overruled on other grounds in Soule v. General Motors Corp. (1994) 8 Cal.4th 548 -- the appellate court concluded the jury instructions on the issue of superseding cause were inadequate. (Self, at p. 11.) The case arose from a car accident in which a car going 65 to 85 miles an hour on a freeway crashed into the left rear of a station wagon stopped on the shoulder of the freeway for a flat tire. (Id. at pp. 4-5.) In the crash, the station wagon "was knocked into a gully, its fuel tank ruptured, and the vehicle caught fire. Two of its occupants were killed, and two others, one of whom was plaintiff Christine Smith, a passenger in the front seat, sustained severe burn injuries." (Id. at p. 5.) Smith and others sought to hold the manufacturer of the station wagon, General Motors, liable "in negligence and strict liability for defective manufacture and defective design of the station wagon, in particular the welding of the fuel tank and its placement in the left rear fender section." (Ibid.)
"The evidence established that no matter how the fuel tank in the Chevrolet station wagon might have been welded, it would have ruptured when struck by a vehicle traveling at a speed of 65 to 85 miles an hour. Plaintiff therefore did not press her claim of defective manufacture, but concentrated on the claim that General Motors had defectively designed the station wagon when it located its fuel tank in the left rear fender section separated from the passenger compartment by only a few layers of metal." (Self v. General Motors Corp., supra, 42 Cal.App.3d at pp. 5-6.) "The theory of General Motors' defense was that no matter where the fuel tank might have been located the station wagon would have caught fire in a vehicular impact of the magnitude of the one that took place and plaintiff's injuries would have been the same." (Id. at p. 10.) Given this fact, the appellate court concluded that the trial court "prejudicially erred in refusing to give [a] specific instruction on superseding cause requested by General Motors" because the instruction was "a correct statement of law" and the instruction the trial court gave on "general cause and on concurrent cause . . . failed to clarify for the jury the issue of superseding cause," such that "the jury may well have overlooked that defense in untangling the issues and arriving at its verdict." (Ibid.) The appellate court held that "[a] trial court should not require a party to rely on abstract generalities in presenting its legal theory of the case to the jury, but should instruct the jury on vital issues in terms that relate to the particular case before it." (Ibid.)
The foregoing principles do not support Freitas's claim of error in the trial court's refusal here to instruct the jury that Allgoewer's arrest was lawful. The lawfulness of the arrest was not something for the jury here to decide, and the lawfulness of the arrest was certainly not Freitas's legal theory of the case; Freitas's theory was that he did not use excessive force in the arrest. To the extent Freitas feared that the jury might, on its own, determine the arrest was unlawful (even though the instructions did not call on the jury to make a finding on that issue) and might hold that determination against Freitas in evaluating the reasonableness of the force he used, the court adequately addressed that fear by telling the jury: (1) it was not an issue for the jury to decide whether the arrest was lawful; (2) there was no allegation pending in the complaint that the arrest was unlawful; and (3) probable cause existed for the arrest. Nothing in Self required anything more.
The second case Freitas cites -- Maureen K. v. Tuschka (2013) 215 Cal.App.4th 519 -- is inapposite as well. There, in a case for disability discrimination in violation of the Unruh Civil Rights Act, the appellate court held the trial court erred in submitting the issue of whether the plaintiff was disabled to the jury because she was disabled as a matter of law because she was HIV positive. (Id. at pp. 522, 527-530.) That is nothing like what happened here. In Maureen K., the trial court instructed the jury in a way that allowed the jury to decide that the plaintiff was not disabled (see id. at p. 526), when in fact she was disabled as a matter of law. In this way, the court's instruction directly interfered with the plaintiff's theory of the case, which was one for disability discrimination. Here, on the other hand, as we have explained already, the trial court's refusal to instruct the jury that Allgoewer's arrest was lawful did not interfere with Freitas's theory of the case, which was that he did not use excessive force in arresting Allgoewer.
Additionally, we are not persuaded that the trial court's refusal to instruct the jury that Allgoewer's arrest was lawful had any prejudicial effect. "Instructional error is prejudicial where it seems probable that the error affected the verdict." (Maureen K. v. Tuschka, supra, 215 Cal.App.4th at p. 531.) Freitas fails to explain how it was probable that the refusal to tell the jury the arrest was lawful -- when the jury was told that: (1) it was not an issue for the jury to decide whether the arrest was lawful; (2) there was no allegation pending in the complaint that the arrest was unlawful; and (3) probable cause existed for the arrest -- affected the verdict against him, especially when the jury found in favor of Officer Mejia under the very same instructions. Accordingly, we find no merit in Freitas's argument regarding the jury instructions relating to the lawfulness of the arrest.
B
CACI No. 3020
Among the jury instructions proposed was CACI No. 3020, the standard California instruction on the excessive use of force (unreasonable arrest or other seizure). Defendants proposed a modified version of the instruction containing some additional language, as follows (the additional language is shown in italics):
"Plaintiff claims that Officer Mejia and/or Officer Freitas used excessive force in arresting and detaining him. To establish this claim, plaintiff must prove all of the following:
"1. That Officer Mejia and/or Officer Freitas used force against plaintiff;
"2. That the force used by Officer Mejia and/or Officer Freitas was excessive;
"3. That Officer Mejia and/or Officer Freitas were acting or purporting to act in the performance of their official duties;
"4. That plaintiff was harmed; and
"5. That Officer Mejia's and/or Officer Freitas' use of excessive force was a substantial factor in causing plaintiff's harm.
"Force is not excessive if it is reasonably necessary under the circumstances to detain and make a lawful arrest. In deciding whether force is reasonably necessary or excessive, you should determine what force a reasonable law enforcement officer would have used under the same or similar circumstances. The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with '20/20 vision of hindsight.' In determining whether the officer[s] used excessive force in this case, consider all of the circumstances known to the officer[s] on the scene, including:
"(a) Whether Steven Allgoewer reasonably appeared to pose an immediate threat to the safety of the defendant officers;
"(b) The seriousness of the crime at issue;
"(c) Whether the plaintiff was actively resisting arrest or attempting to evade arrest by flight;
"(d) The amount of time and any changing circumstances during which Officer Mejia and Officer Freitas had to determine the type and amount of force that appeared to be necessary;
"(e) The type and amount of force used; and
"(f) The availability of alternative methods to take the plaintiff into custody."
According to defendants, the additional language they proposed came from a Ninth Circuit model jury instruction.
Allgoewer objected to inclusion of the additional language in the excessive force instruction. The court took the matter under submission. The following day, the parties argued the issue again. The court decided "to use 3020 exactly as it is and not do any additions" because "there's all kinds of things that the jury can consider that are not necessarily listed in this instruction," and the proposed additional language "unduly focuses the case toward the defense," while "3020 is more neutral." The court made clear, however, that defense counsel could "get up and argue" the matters covered by the rejected language. Moreover, it appears the court ultimately decided to add the words "but not limited to" after the word "including" before subparagraph (a) of the instruction.
On appeal, Freitas contends the trial court erred in refusing to add the language he proposed from the Ninth Circuit's instruction to the form instruction on excessive force because "[t]he proposed instruction was correct in form and substance . . . [and] would have helped the jury in two important ways." First, Freitas contends the additional language would have "provid[ed] a standard for judging the reasonableness of [his] conduct" -- namely, "the perspective of a reasonable officer on the scene, in the heat of the moment, rather than with 20/20 hindsight." According to Freitas, "[l]acking an admission that [his] conduct must be judged from an officer's viewpoint at the time of the incident, the given CACI instruction offered the jury no meaningful guidance at all." Second, Freitas contends that by refusing to instruct on the "three additional factors relevant to the specific evidence adduced in this case," "the CACI instruction failed to provide the tailored nexus between facts and law to which Freitas was entitled."
"It is hornbook law that each party to a lawsuit is entitled to have the jury instructed on all of his theories of the case that are supported by the pleadings and the evidence. It is incumbent upon the trial court to instruct on all vital issues involved. [Citations.] . . . [Citations.] A trial court, where there is evidence to support . . . a defense, may not, by refusing to instruct on it, deprive a party of this defense." (Phillips v. G. L. Truman Excavation Co. (1961) 55 Cal.2d 801, 806, overruled on other grounds in Soule v. General Motors Corp., supra, 8 Cal. 4th at p. 574.)
Taking each of Freitas's complaints in turn, the trial court's refusal to instruct the jury that "[t]he 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with '20/20 vision of hindsight' " did not deny Freitas an instruction on his theory of the case or deprive him of a defense. Moreover, we disagree with Freitas that the unmodified form instruction "offered the jury no meaningful guidance at all." The form instruction told the jury to "determine what force a reasonable law enforcement officer would have used under the same or similar circumstances" and to "consider all of the circumstances known to the officer[s] on the scene." This language necessarily directed the jury to assess the reasonableness of the force Freitas used from the perspective of a reasonable officer "on the scene," and there is simply no reason to think that, absent further instruction or clarification, the jury would have thought it was supposed to, or could, use "20/20 hindsight" instead in evaluating the reasonableness of Freitas's conduct. Thus, the trial court did not err in refusing to add Freitas's proposed language to the form instruction.
The same conclusion applies to the trial court's refusal to instruct on the three additional circumstances Freitas asked the court to add to the instruction. The refusal to add these circumstances, when the instruction already told the jury to "consider all of the circumstances known to the officer[s] on the scene," did not deny Freitas an instruction on his theory of the case or deprive him of a defense. The jury would have understood from the instruction actually given that it could consider "all" circumstances known to Freitas and Mejia when they decided to use force against Allgoewer to arrest him; refusing to instruct the jury on three such circumstances in particular was not legal error.
Additionally, as we did with respect to Freitas's argument regarding the instruction on the lawfulness of the arrest, we conclude no prejudice has been shown from the trial court's refusal to instruct the jury with the language Freitas wanted the court to add to the form instruction on excessive force. Freitas fails to explain how it was probable that the refusal to instruct the jury with this additional language affected the verdict against him, especially when the jury found in favor of Officer Mejia under the very same instructions. Accordingly, we find no merit in Freitas's argument regarding the form instruction on excessive force.
IV
Compromise Verdict
Finally, Freitas contends the jury's liability and damages findings strongly suggest an impermissible compromise verdict, which requires a new trial on all issues. On this point, we agree.
" 'Verdicts are sometimes rendered in personal injury or death actions that, in view of the evidence of injuries, suffering, and medical and other expenses, are clearly inadequate. Common experience suggests that these are the result of compromise, some jurors believing that the evidence fails to establish liability, but yielding to the extent of agreement on a small recovery. It would be unfair to the defendant to ignore this unmistakable evidence of compromise and to accept the verdict for the plaintiff at face value as a determination of liability. Accordingly, it is well settled that the error calls for a general new trial, and a limited order is an abuse of discretion.' " (Lauren H. v. Kannappan (2002) 96 Cal.App.4th 834, 840, quoting 8 Witkin, Cal. Procedure (4th ed. 1997) Attack on Judgment in Trial Court, § 115, pp. 619-620.)
"[I]ndicators of a compromise verdict are (1) a close verdict; (2) jury requests for readback; (3) jury indecision whether the plaintiff should recover a certain amount or nothing; (4) a subsequent jury election to straddle and award a compromise recovery in a lesser amount than that to which plaintiff would be entitled if plaintiff prevailed; and (5) a short trial. [Citations.] When this sort of 'unmistakable evidence' [citation] is present, 'the only reasonable conclusion' to be drawn 'is that the jurors compromised the issue of liability' [citation]. It is an abuse of discretion to grant only a partial new trial when liability is close, the damages are inadequate, and the jury returns a nine-to-three verdict, all of which signal that the verdict was probably the result of a compromise of the liability issue." (Lauren H. v. Kannappan, supra, 96 Cal.App.4th at p. 841.)
In arguing the verdict here was an impermissible compromise, Freitas relies primarily on Wilson v. R. D. Werner Co. (1980) 108 Cal.App.3d 878. In Wilson, the plaintiff "sustained fractures of his right elbow and both wrists when a 24-foot aluminum extension ladder, on which he was standing and painting, moved or twisted and then slid and fell from the building against which it was placed. The ladder was manufactured by the Werner Company [the defendant]." (Id. at p. 880.) The plaintiff "underwent surgery to remove a bone fragment from his elbow and to reattach certain muscles. The right wrist fracture required insertion of wires to hold fragments of bone in place. Both of [his] arms were placed in casts from his fingers to his shoulders. He was hospitalized for 10 days. X-rays taken several weeks before trial revealed narrowing of the joint spaces in both wrists. [The plaintiff] suffered substantial and permanent impairment of function as a result of his injuries." (Ibid.) "The jury awarded [the plaintiff] damages in the sum of $10,000. The trial court granted a new trial limited to the damages issue, on the ground that the jury's damages award was inadequate." (Ibid.)
The defendant appealed from the order granting the plaintiff's motion for new trial on the issue of damages, and the plaintiff took a precautionary cross-appeal from the judgment. (Wilson v. R. D. Werner Co., supra, 108 Cal.App.3d at pp. 880, 883.) The appellate court determined that the new trial order had to be reversed because "[t]he [trial] court's specification of reasons for granting a new trial limited to the issue of damages le[ft] it open to speculation whether the court believed that the jury improperly omitted to compensate [the plaintiff] for pain and suffering or for loss of ability to work as a painter" and therefore "[t]he specification d[id] not indicate to [the defendant] 'which aspect of the trial to defend.' " (Id. at pp. 882-883.) Beyond that, however, the appellate court also determined (on the plaintiff's cross-appeal) that the entire judgment had to be reversed because "the jury verdict was probably the result of a compromise on the liability issue, requiring a new trial on all issues." (Id. at p. 884.) As the appellate court explained, "[t]he record contain[ed] evidence demonstrating that, given the finding of liability, the damages awarded to [the plaintiff] were inadequate as a matter of law. [The plaintiff's] uncontradicted medical expenses and damages from loss of earning capacity for the period during which he was unable to engage in any gainful employment totaled $10,930. The jury could reasonably have determined that after [the plaintiff] resumed employment the claimed inability to work as a painter had ceased. [The plaintiff] testified on cross-examination that he had painted with his left hand prior to the accident, was ambidextrous, could presently paint left-handed, and no longer painted because he was too involved in his work as an apartment manager. The evidence of his pain and suffering, however, was uncontroverted. [The plaintiff] required surgery and physical therapy, his arms were immobilized in casts for about three months, he suffered continued pain and numbness in his arms, he suffered interrupted sleep, and he was forced to curtail his recreational activities. The jury's award of $10,000, which approximately compensated [the plaintiff] for his medical expenses and temporary loss of income due to inability to engage in gainful employment, failed to compensate him at all for his pain and suffering, and thus was inadequate as a matter of law." (Id. at p. 883.) Relying on "[t]he conflicting evidence of liability, the clear inadequacy of the damages award, and the additional fact that the jury returned a nine-to-three verdict," the appellate court determined that a new trial on all issues was required. (Id. at p. 884.)
As Freitas argues, this case is much like Wilson. The evidence of liability was conflicting, with the jury actually finding no liability on the part of Mejia and finding Freitas liable only by a bare minimum of 9 jurors. More importantly, the damages awarded were clearly inadequate based on the jury's finding of liability. Indeed, even the trial court recognized as much by granting Allgoewer a new trial on the issue of damages when Freitas refused to accept additur in the amount of $200,000 for Allgoewer's general damages. The jury awarded Allgoewer $90,000 in past economic damages, which was exactly what Allgoewer requested for all of the medical treatment he received as a result of the injuries sustained in his arrest, but did not award him a single dime in noneconomic damages, despite his unrefuted testimony that he suffered from "excruciating" pain in his right wrist, as well as pain in his left bicep and his left shoulder.
Allgoewer contends an award of no damages for pain and suffering is not necessarily inadequate as a matter of law, and each case depends on the facts involved, but these arguments are hollow for a couple of reasons. First, to the extent Allgoewer contends the evidence of his pain and suffering was "contested" because "Freitas' counsel argued that some of Allgoewer's surgeries were not entirely the result of the underlying incident as Allgoewer had previous existing medical conditions at the time that may have been aggravated," this argument ignores the fact that the jury awarded him all of the economic damages he sought for his medical treatment. Given that the jury found Freitas liable for all of Allgoewer's medical costs, it would be anomalous to conclude that, at the same time, the jury reasonably found that none of Allgoewer's pain and suffering derived from the injuries for which he incurred those medical costs.
Second, Allgoewer can hardly be heard to argue in this court that the award of no general damages was adequate given that he himself persuaded the trial court to grant him a new trial on the issue of damages because the damages were inadequate. Allgoewer simply cannot have it both ways.
"A new trial limited to the damages issue may be ordered by the trial court when it can reasonably be said that the liability issue has been determined by the jury. A refusal to allow for undisputed special damages is usually convincing evidence that the jury failed to make a decision of the liability issue, and that circumstance has therefore been stressed in a number of appellate opinions. [Citations.] In a particular case, however, gross inadequacy of unliquidated general damages may be just as convincing. . . . As a general rule, it is only when the verdict allows a substantial, even though inadequate, amount for general damages that it can reasonably be concluded that the jury's error related solely to the damages issue. . . . [¶] [I]n the present case the jury was properly instructed concerning damages and the issue of liability was close, so that the grossly inadequate award cannot reasonably be explained as a mere error of the jury in the assessment of damages." (Hamasaki v. Flotho (1952) 39 Cal.2d 602, 606-607.)
"The question of granting a limited new trial is addressed in the first instance to the sound discretion of the trial court [citation]. In the usual case the granting of a partial new trial is a proper exercise of discretion when the sum awarded is substantial and to an extent compensatory though insufficient, but not so negligible that it appears that the jury has bargained grossly inadequate damages for nonexistent liability. [Citation.] It is presumed that in passing on the motion the judge has weighed the evidence and the possibility of prejudice to the defendant. His decision will not be reversed on appeal unless an abuse of discretion is shown [citation]. However, abuse is shown where: (1) the question of liability is close: (2) the damages awarded are grossly inadequate; and (3) other circumstances indicate that the verdict was the result of prejudice or an improper compromise." (Berg v. Sonen (1964) 230 Cal.App.2d 434, 436-437.)
As we have just explained, such is the case here. Accordingly, we conclude the trial court erred in denying Freitas's new trial motion on the ground that the verdict indicated an impermissible compromise. Freitas is entitled to a new trial on all issues.
DISPOSITION
The judgment is reversed, and the case is remanded to the trial court with directions to vacate its order denying Freitas's new trial motion and to enter a new order granting that motion and directing a new trial as to Freitas on all issues. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
/s/_________
Robie, Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Murray, J.