The opinion
FILED
NOT FOR PUBLICATION
JUN 10 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEOCADIO FIGUEROA, No. 13-57040
Plaintiff - Appellee, D.C. No. 2:11-cv-06228-DMG-
FFM
v.
COUNTY OF LOS ANGELES, MEMORANDUM*
Defendant,
And
SERGEANT ERIC GONZALEZ,
Defendant - Appellant.
LEOCADIO FIGUEROA, No. 13-57044
Plaintiff - Appellant, D.C. No. 2:11-cv-06228-DMG-
FFM
v.
COUNTY OF LOS ANGELES, et al.,
Defendants - Appellees.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
LEOCADIO FIGUEROA, No. 14-56229
Plaintiff - Appellee, D.C. No. 2:11-cv-06228-DMG-
FFM
v.
ERIC GONZALEZ, Sergeant,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Argued and Submitted February 4, 2016
Pasadena, California
Before: CALLAHAN and N.R. SMITH, Circuit Judges and RAKOFF,** Senior
District Judge.
Sergeant Gonzalez appeals from the district court’s denial of his motion for
relief from default and the defendants appeal from the district court’s grant of
attorneys’ fees for plaintiff Leocadio Figueroa. Mr. Figueroa appeals from the
district court’s denial of his motion for new trial against Deputy Perez. We vacate
the denial of Sergeant Gonzalez’s motion for relief from default, vacate the
attorneys’ fee award, and affirm the denial of the motion for new trial.
**
The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
Mr. Figueroa got into an argument with Deputy Sheriff Perez, when he went
to visit his brother who was in jail, but the brother was not available because he
was being disciplined. A scuffle broke out and after four deputies subdued and
handcuffed Mr. Figueroa, he had a broken arm. Mr. Figueroa filed a §1983 action
against the four deputies, their supervisor Sergeant Gonzalez, Sheriff Baca, and the
County of Los Angeles. Trial was bifurcated.
The case against the four deputies was tried first and resulted in a jury
verdict in favor of the deputies. Only Deputy Perez was found to have used
excessive force, but the jury found that he reasonably believed the amount of force
used to subdue Mr. Figueroa was not excessive. Mr. Figueroa has filed an appeal
from the district court’s denial of his motion for a new trial against Deputy Perez.
When the district court proceeded to the second phase of the trial against
Sergeant Gonzalez, Sheriff Baca, and the County of Los Angeles, defense counsel
informed the court that Sergeant Gonzalez would not be present as he had gone to
the Dominican Republic to get married or engaged. Defense counsel told the court
that he had telephoned Sergeant Gonzalez but he had not answered or
acknowledged the messages he had left. The district court then entered a default
judgment against Sergeant Gonzalez.
3
Sergeant Gonzalez subsequently filed a motion for relief from default based
on his declaration that he did not know he had to be present for the second phase of
the trial and did not receive any of counsel’s phone messages because he had no
cell phone service in the Dominican Republic. The district court denied the motion
for relief and Sergeant Gonzalez has appealed from that order. The defendants
have also appealed from an order awarding Mr. Figueroa attorneys’ fees.
1. The District Court abused its discretion in denying Sergeant Gonzalez’s
motion for relief from default judgment. In denying the motion, the district court
relied on a local rule instead of the factors set forth in Falk v. Allen, 739 F.2d 461
(9th Cir. 1984). These factors are: “(1) whether the party seeking to set aside the
default engaged in culpable conduct that led to the default; (2) whether it had no
meritorious defense; or (3) whether reopening the default judgment would
prejudice the other party.” United States v. Aguilar, 782 F.3d 1101, 1105 (9th Cir.
2015) (internal quotation marks omitted).
It appears that Sergeant Gonzalez has a meritorious defense and there is no
showing that Mr. Figueroa will be unduly prejudiced from reopening. Thus, the
propriety of the district court’s order appears to turn on an evaluation of Sergeant
Gonzalez’s culpability.
4
Our decision is guided by two prior opinions. In Phoceene Sous-Marine,
S.A. v. U.S. Phosmarine, Inc., 682 F.2d 802, 806 (9th Cir. 1982), we noted that,
under Supreme Court precedent, “a court could not, consistent with the
requirements of due process, strike a defendant’s answer and enter default as
punishment for contempt.” In Halaco Eng’g Co. v. Costle, 843 F.2d 376, 381 (9th
Cir. 1988), we held that, before dismissing an action under its inherent powers, a
court must consider less drastic sanctions, and that “[t]he most critical criterion for
the imposition of a dismissal sanction is that the misconduct penalized must relate
to matters in controversy in such a way as to interfere with the rightful decision of
the case.”
Here, Sergeant Gonzalez’s conduct did not warrant default being entered
against him. He was not subpoenaed to attend the second phase of the trial. Even
if his attorneys had agreed to produce him, it appears that they did not tell him he
had to attend. Sergeant Gonzalez could have believed that his attendance was
unnecessary in light of the verdict in favor of the deputies. Also, there is no
competent evidence to counter Sergeant Gonzalez’s declaration that he did not
have cell phone service in the Dominican Republic.
Moreover, it is not clear that Sergeant Gonzalez’s presence was critical to
Mr. Figueroa’s claim against him. Presumably, Mr. Figueroa’s claim is based on
5
documents and testimony of individuals other than Sergeant Gonzalez (particularly
as Mr. Figueroa did not depose Sergeant Gonzalez). However, the district court
did not (a) require that Mr. Figueroa proffer his case against Sergeant Gonzalez,
(b) consider whether the claim could be tried without Sergeant Gonzalez, with the
jury drawing an adverse inference from his absence, or (c) consider any other
alternatives to default.
In light of the district court’s failure to apply the Falk factors, the lack of
personal culpability on the part of Gonzalez, the district court’s miscalculation of
the importance of Gonzalez’s presence, and the district court’s failure to consider
alternatives, we vacate the denial of Gonzalez’s motion for relief from default and
remand the case to the district court for further proceedings.
2. With the vacation of the default judgment against Sergeant Gonzalez, Mr.
Figueroa is no longer a prevailing party and accordingly the award of attorneys’
fees is also vacated.
3. We affirm the district court’s denial of Mr. Figueroa’s motion for a new
trial against Deputy Perez. Although a determination of qualified immunity is
reviewed de novo, see Deorle v. Rutherford, 272 F.3d 1272, 1278 (9th Cir. 2001),
we give deference to a jury’s factual findings, see Gilbrook v. City of Westminster,
177 F.3d 839, 856 (9th Cir. 1999) (holding that “both the verdict and the denial of
6
the motion must be affirmed if there is substantial evidence to support the
verdict”).
Mr. Figueroa argues that the district court erred by permitting the jury to
determine whether Deputy Perez was entitled to qualified immunity. Specifically,
Mr. Figueroa contends that the jury should not have been permitted to decide
whether Mr. Figueroa’s constitutional right to be free from excessive force was so
clearly established that Deputy Perez should have known his conduct was
unlawful.
“Qualified immunity is a question of law, not a question of fact.” Torres v.
City of Los Angeles, 548 F.3d 1197, 1210 (9th Cir. 2008). However, our case law
has not been entirely consistent with regard to who may decide aspects of qualified
immunity that involve disputes of material facts. Compare Act Up!/Portland v.
Bagley, 988 F.2d 868, 873 (9th Cir. 1993) (“The determination of whether the facts
alleged could support a reasonable belief in the existence of probable cause or
reasonable suspicion is . . . a question of law to be determined by the court.”), with
Johnson v. Bay Area Rapid Transit Dist., 724 F.3d 1159, 1168 (9th Cir. 2013)
(“Though we may excuse [a] reasonable officer for [making mistakes of fact or law
that lead to unconstitutional acts], it sometimes proves necessary for a jury to
determine first whether the mistake was, in fact, reasonable.” (citations omitted)).
7
In this case, the material facts were contested. On the one hand, if the facts
were as alleged by Mr. Figueroa, Deputy Perez may have violated a constitutional
right that was clearly established. However, if the facts were as alleged by Deputy
Perez, Deputy Perez’s conduct did not violate any clearly established constitutional
right. Thus, the court could allow the jury to determine which version of the facts
was true. See Torres, 548 F.3d at 1211. However, this district court went a step
further and instructed the jury on qualified immunity. Under Johnson, such
deference to the jury (as to whether Deputy Perez’s belief that his use of force was
not unconstitutional was reasonable) may have been acceptable. However, under
Act Up!, it was clearly an error. For purposes of this case, we need not decide
whether Johnson or Act Up! controls because any error committed by the district
court under Act Up! was harmless.
First, the jury’s responses to the questions on the verdict form do not suggest
that the jury believed Deputy Perez had violated Mr. Figueroa’s constitutional
rights. Rather, the jury’s responses suggest it believed that, although the force
used was perhaps more than necessary (resulting in a broken arm), Deputy Perez
reasonably believed that he needed to use such force to control the situation under
these particular circumstances. That determination, as Mr. Figueroa admits, was a
question of fact properly before the jury. In other words, the jury was permitted
8
(under both Johnson and Act Up!) to decide whether Deputy Perez reasonably
believed the amount of force he used was necessary under the circumstances. Such
finding established that no constitutional right had been violated. Because the jury
in effect determined that there had been no violation of a constitutional right, there
could be no liability and therefore no need for additional qualified immunity
analysis.
Second, the right Mr. Figueroa alleges was violated was not so clearly
established that a reasonable person in Deputy Perez’s situation should have
known that his actions in “the specific context of this case” were unlawful.
Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (internal quotation marks omitted);
see also Pearson v. Callahan, 555 U.S. 223, 243 (2009). Because this
determination is purely a question of law, we may decide the issue without
deference to the district court or the jury. Thus, even if, as Mr. Figueroa contends,
the jury impermissibly weighed in on a purely legal question, such error was
harmless because we, in an independent analysis of legal precedent, also find that
the right was not clearly established.
The district court’s order denying Sergeant Gonzalez relief from default is
vacated and the award of attorneys’ fees is vacated. The district court’s order
9
denying Mr. Figueroa’s motion for a new trial against Deputy Perez is affirmed.
The case is remanded to the district court. Costs are awarded to defendants.
VACATED in part, AFFIRMED in part, and REMANDED.
10