Petition for Writ of Certiorari — City of Anaheim, California, et al., Petitioners v. Fermin Vincent Valenzuela, et al.

App. 1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FERMIN VINCENT VALENZUELA;

V.V., by and through their Guardian,

Patricia Gonzalez, individually

and as successors-in-interest of

Fermin Vincent Valenzuela, II,

deceased; X.V., by and through

their Guardian, Patricia Gonzalez,

individually and as successors-ininterest of Fermin Vincent

Valenzuela, II, deceased,

No. 20-55372

D.C. Nos.

8:17-cv-00278CJC-DFM

8:17-cv-02094CJC-DFM

OPINION

Plaintiffs-Appellees,

V.

CITY OF ANAHEIM; DANIEL WOLFE;

WOOJIN JUN; DANIEL GONZALEZ,

Defendants-Appellants.

Appeal from the United States District Court

for the Central District of California

Cormac J. Carney, District Judge, Presiding

Argued and Submitted May 5, 2021

Pasadena, California

Filed August 3, 2021

App. 2

Before: John B. Owens and Kenneth K. Lee, Circuit

Judges, and Michael H. Simon,* District Judge.

Opinion by Judge Owens;

Dissent by Judge Lee

COUNSEL

Timothy T. Coates (argued) and Peter A. Goldschmidt,

Greines Martin Stein & Richland LLP, Los Angeles,

California; Steven J. Rothans and Jill Williams, Carpenter Rothans & Dumont LLP, Los Angeles, California; Robert Fabela, City Attorney; Moses W. Johnson,

Assistant City Attorney; City Attorney’s Office, Anaheim, California; for Defendants-Appellants.

Dale K. Galipo (argued) and Hang D. Le, Law Offices

of Dale K. Galipo, Woodland Hills, California; John

Fattahi, Law Office of John Fattahi, Torrance, California; Garo Mardirossian and Lawrence D. Marks,

Mardirossian & Associates Inc., Los Angeles, California; for Plaintiffs-Appellees.

Christopher D. Hu (argued), San Francisco, California,

for Amicus Curiae

Steven S. Fleischman, Scott P. Dixler, and Yen-Shang

Tseng, Horvitz & Levy LLP, Burbank, California, for

Amicus Curiae Association of Southern California Defense Counsel.

* The Honorable Michael H. Simon, United States District

Judge for the District of Oregon, sitting by designation.

App. 3

Michael E. Gates, City Attorney; Brian L. Williams,

Chief Trial Counsel; Daniel S. Cha and Pancy Lin, Senior Deputy City Attorneys; Office of the City Attorney,

Huntington Beach, California; for Amicus Curiae City

of Huntington Beach.

Steven J. Renick, Manning Kass Ellrod Ramirez

Trester LLP, Los Angeles, California, for Amicus Curiae International Municipal Lawyers Association.

OPINION

OWENS, Circuit Judge:

The City of Anaheim and individual officers (“Defendants”) appeal from a jury verdict awarding “loss of

life” damages to the family of Fermin Valenzuela, Jr.,

who died after an encounter with the police. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.1

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Death of Valenzuela

On July 2, 2016, Anaheim Police Department Officers Woojin Jun and Daniel Wolfe received a 911 dispatch about a “suspicious person” near a laundromat

in Anaheim. The dispatcher described Valenzuela’s appearance, indicated that no weapons had been seen,

1

This opinion only addresses the issue of loss of life damages. A concurrently filed memorandum disposition resolves the

remaining issues on appeal, including qualified immunity.

App. 4

and noted that it was unknown whether Valenzuela

was on drugs or required psychiatric assistance.

Arriving at the scene, the officers spotted Valenzuela and followed him into the laundromat, where

they observed him moving clothing from a bag into a

washing machine. As they approached, Wolfe said he

heard the sound of breaking glass and saw what he

recognized as a methamphetamine pipe. Wolfe then

asked Valenzuela whether he was “alright” and if he

had just “br[oke] a pipe or something.” Valenzuela replied that he was “good” and “just trying to wash” his

clothes.

Wolfe claimed that he then saw a screwdriver in

the bag, so he ordered Valenzuela to stop and put his

hands behind his back. Valenzuela stepped away from

the bag but did not immediately comply. Wolfe then

grabbed Valenzuela’s right arm and tried to pull it behind his back. Almost immediately after, Jun placed

Valenzuela in a choke hold as Wolfe tried to maintain

control of Valenzuela’s hands.2

A violent struggle ensued, with Jun continuing

the choke hold while the officers managed to knock

2

The parties dispute whether the officers placed Valenzuela

in a carotid hold or an air choke hold. A carotid hold involves

compressing the carotid arteries on both sides of the neck. When

properly applied, the hold should render someone unconscious

within seven to ten seconds. But when improperly applied, a carotid hold can turn into an air choke hold, which applies pressure

to the front of the neck and is much more dangerous. Without resolving this dispute, we use the term “choke hold” to describe the

neck restraints placed on Valenzuela.

App. 5

Valenzuela to the floor, face down. Jun then initiated a

second choke hold, and Valenzuela started turning purple and repeatedly screamed “I can’t breathe” and

“help me.” Wolfe then tased Valenzuela, who jumped to

his feet and ran out of the laundromat. The officers

chased after Valenzuela, pulling off some of his clothes

as he tried to escape and knocking him to the ground.

The officers repeatedly tased Valenzuela, who begged

for them to “stop it.”

Despite multiple choke holds and taser attacks,

Valenzuela ran across the street with the officers in

pursuit. Out of breath, Valenzuela repeatedly asked

the officers to “please don’t” and “don’t kill me.” He

managed to make it to a convenience store parking lot,

where he tripped and fell to the ground. While on the

ground, Wolfe placed Valenzuela in yet another choke

hold. Again, Valenzuela turned purple, repeatedly

screamed “help me” and “stop it,” and was audibly

gasping for air. Sergeant Daniel Gonzalez, a supervisory officer, arrived on the scene and encouraged Wolfe

to “hold that choke” and “put him out,” and gave Wolfe

tips on how to accomplish this. Wolfe maintained the

hold for between one and two minutes as Jun and

Gonzalez held down Valenzuela’s arms.

Towards the end of the encounter, Gonzalez asked

Wolfe whether Valenzuela was able to breathe. Gonzalez told the officers to roll Valenzuela on his side because he was “going to wake up.” Valenzuela never did,

and he fell into a coma and died eight days later in the

hospital. The Orange County medical examiner ruled

the manner of death as a homicide caused by

App. 6

“complication[s] of asphyxia during the struggle with

the law enforcement officer” while Valenzuela was “under the influence of methamphetamine.”

B. Procedural History

Valenzuela’s father and children filed suit under

42 U.S.C. § 1983 and California law for excessive force,

wrongful death, and similar theories of liability. After

a five-day trial, the jury awarded the Valenzuela family

a total of $13.2 million in damages on multiple theories

of liability, including $3.6 million for Valenzuela’s “loss

of life,”3 which was independent of any pain and suffering that he endured during and after the struggle with

the officers.4

In their post-trial motions, the Defendants argued

that because California state law did not recognize loss

of life damages, neither should § 1983. The district

court disagreed. After reviewing the relevant in- and

out-of-circuit case law, including Chaudhry v. City of

Los Angeles, 751 F.3d 1096 (9th Cir. 2014), the court

concluded that § 1983 permitted the recovery of loss

of life damages and that California state law to the

contrary was inconsistent with the federal statute’s

goals. As the court recognized, to hold otherwise

“would undermine the vital constitutional right

3

The Ninth Circuit’s Model Civil Jury Instruction 5.2 also

recognizes damages for the “loss of enjoyment of life.”

4

The other awards were $6 million for Valenzuela’s predeath pain and suffering and $3.6 million for his children’s loss of

Valenzuela’s love, companionship, society, and moral support.

App. 7

against excessive force—perversely, it would incentivize officers to aim to kill a suspect, rather than just

harm him.” This appeal followed.

II.

DISCUSSION

A. Standard of Review

We review de novo the district court’s decision regarding loss of life damages. See Chaudhry, 751 F.3d

at 1103.

B. Section 1983 and “Loss of Life” Damages

California law forbids recovery for a decedent’s

loss of life. Cal. Civ. Proc. Code § 377.34.5 And because

the relevant federal law is silent as to loss of life damages, California law controls our inquiry “unless it is

inconsistent with the policies of § 1983.” Chaudhry,

751 F.3d at 1103. We conclude that it is, mindful that

§ 1983 was meant to be a remedial statute and should

be “broadly construed” to provide a remedy “against

all forms of official violation of federally protected

rights.” Dennis v. Higgins, 498 U.S. 439, 445 (1991) (citation omitted); see also Wilson v. Garcia, 471 U.S. 261,

5

Section 377.34 provides: “In an action or proceeding by a

decedent’s personal representative or successor in interest on the

decedent’s cause of action, the damages recoverable are limited to

the loss or damage that the decedent sustained or incurred before

death, including any penalties or punitive or exemplary damages

that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or

disfigurement.” Cal. Civ. Proc. Code § 377.34 (emphasis added).

App. 8

271–72 (1985) (“[Section] 1983 provides a ‘uniquely

federal remedy against incursions under the claimed

authority of state law upon rights secured by the Constitution’ . . . [that] make[s] it appropriate to accord the

statute ‘a sweep as broad as its language.’ ” (internal

citation omitted)), superseded by statute on other

grounds. Section 1983’s goals include compensation for

those injured by a deprivation of federal rights and deterrence to prevent future abuses of power. Robertson

v. Wegmann, 436 U.S. 584, 591 (1978).

Our analysis begins, and largely ends, with

Chaudhry. In that case, we addressed whether

§ 377.34’s prohibition of pre-death pain and suffering

damages prevented § 1983 plaintiffs from obtaining

such relief. We recognized that “[o]ne of Congress’s primary goals in enacting § 1983 was to provide a remedy

for killings unconstitutionally caused or acquiesced in

by state governments,” and that “[i]n cases where the

victim dies quickly, there often will be no damage

remedy at all under § 377.34.” Chaudhry, 751 F.3d at

1103–04. Because California’s bar on such relief had

“the perverse effect of making it more economically advantageous for a defendant to kill rather than injure

his victim,” we held that it clashed with § 1983’s remedial purpose and undermined its deterrence policy. Id.

at 1104–05. “Section 377.34 therefore does not apply to

§ 1983 claims where the decedent’s death was caused

by the violation of federal law.” Id. at 1105.

In reaching this conclusion, Chaudhry relied in

part on Bell v. City of Milwaukee, 746 F.2d 1205, 1239

(7th Cir. 1984), overruled in part on other grounds by

App. 9

Russ v. Watts, 414 F.3d 783 (7th Cir. 2005), a § 1983

case which rejected Wisconsin laws precluding loss of

life damages because they made it “more advantageous

[for officials] to kill rather than injure.”6 In doing so,

Chaudhry implicitly disagreed with the Sixth Circuit’s

contrary decision in Frontier Ins. Co. v. Blaty, 454 F.3d

590, 601, 603 (6th Cir. 2006), which held that § 1983

did not conflict with a similar Michigan law because

§ 1983 compensates only for “actual damages suffered

by the victim,” and a loss of life “is not ‘actual’ . . . because it is not consciously experienced by the decedent.”

We see no meaningful way to distinguish

Chaudhry from this case.7 Both involve deaths caused

by a violation of federal law, and both consider the

limits that California’s § 377.34 places on § 1983 plaintiffs—limits that we have squarely rejected. Prohibiting loss of life damages would run afoul of § 1983’s

6

Chaudhry also relied on similar cases from the Tenth and

Second Circuits. See Chaudhry, 751 F.3d at 1104–05 (first citing

Berry v. City of Muskogee, 900 F.2d 1489, 1506 (10th Cir. 1990)

(rejecting an Oklahoma state law that limited survival damages

to property loss and lost earnings as inconsistent with § 1983);

and then citing McFadden v. Sanchez, 710 F.2d 907, 911 (2d Cir.

1983) (holding the same for a New York law barring punitive

damages in § 1983 survival actions)).

7

Although district courts in our circuit once were split over

the availability of loss of life damages under § 1983, they are

unanimous after Chaudhry. See Estate of Casillas v. City of

Fresno, No. 16-CV-1042, 2019 WL 2869079, at *16 (E.D. Cal. July

3, 2019) (“Critically, . . . the cases in California federal district

courts denying survival damages, including ‘loss of enjoyment of

life’ damages, are pre-Chaudhry; and courts in this district have

authorized hedonic damages in the post-Chaudhry landscape.”).

App. 10

remedial purpose as much as (or even more than) the

ban on pre-death pain and suffering damages. Following Chaudhry, we therefore hold that § 377.34’s prohibition of loss of life damages is inconsistent with

§ 1983.

The Defendants’ attempts to distinguish Chaudhry

fall flat. First, the Defendants argue that the injury in

this case is different because unlike pre-death pain

and suffering, a person cannot “actually experience”

the phenomenon of being dead. But we already rejected this quasi-metaphysical argument in Chaudhry

when we endorsed the Seventh Circuit’s analysis in

Bell, which identified the rationale behind Wisconsin’s

restrictive statute—“that the victim once deceased

cannot practicably be compensated for the loss of life

to be made whole”—and, in light of § 1983’s broad remedial purpose and deterrence goal, rejected the state

law anyway. Bell, 746 F.2d at 1236, 1239–40.

Second, the Defendants contend that the damages

in this case are already adequate: Even if Valenzuela’s

family could not recover the $3.6 million loss of life

award, they would still receive $9.6 million in predeath pain and suffering and wrongful death damages,

which sufficiently serves § 1983’s deterrent purpose.

But the above awards address different injuries. One

can endure pain and suffering separately from dying,

while another can die painlessly and instantly. “[T]o

further the purpose of § 1983, the rules governing compensation for injuries caused by the deprivation of constitutional rights should be tailored to the interests

protected by the particular right in question.” Carey v.

App. 11

Piphus, 435 U.S. 247, 258–59 (1978). Additionally, such

a framework would still preclude recovery for the decedent who is penniless, without family, and killed

immediately on the scene. That reading is not tenable

in light of § 1983’s remedial purpose. See Zinermon v.

Burch, 494 U.S. 113, 124 (1990) (“[Section] 1983 was

intended not only to . . . provide a remedy for violations

of civil rights ‘where state law was inadequate,’ but

also to provide a federal remedy ‘where the state remedy, though adequate in theory, was not available in

practice.’ ” (citation omitted)).

Finally, the Defendants argue that loss of life

damages are too speculative because juries have never

experienced death. But juries are regularly asked to

assess damages without direct sensory experience of

the issue before them—including, in this case, for predeath pain and suffering. And it is still better for juries

to decide whether a plaintiff has received sufficient

compensation than for our court to draw arbitrary

lines denying compensation entirely.8

At bottom, the Defendants ask us to overrule

Chaudhry. Not only is this outside our authority as a

three-judge panel, but it is also inconsistent with the

Supreme Court’s repeated reminders of § 1983’s goals

and remedial purpose.

AFFIRMED.

8

Contrary to the dissent’s contention that we are mandating

maximizing recovery, we continue to leave it to juries to decide

the appropriate award in each case.

App. 12

LEE, Circuit Judge, dissenting:

Fermin Valenzuela, Jr. did not deserve to die, even

if he defied police orders and forcefully resisted arrest.

His father did not deserve to lose his son. His two children did not deserve to lose their father. Valenzuela’s

family deserves compensation. And the jury agreed: In

a civil suit filed by his estate and his surviving family

members against the City of Anaheim and its police officers, the jury awarded $13.2 million in damages—$6

million for pre-death pain and suffering, $3.6 million

for wrongful death, and another $3.6 million for loss of

life.

As tragic as his death was, we must follow the

law—and California law prohibits damages for loss of

life. That means Valenzuela’s estate and his family

members should receive $9.6 million instead of $13.2

million. The majority opinion, however, holds that they

are entitled to the full $13.2 million, ruling that federal

common law supplants California law because it is “inconsistent” with § 1983’s goals of deterrence and compensation. Chaudhry v. City of Los Angeles, 751 F.3d

1096, 1103 (9th Cir. 2014).

But an award of $9.6 million (for wrongful death

and pain and suffering) is not “inconsistent” with deterrence or compensation. We can respect state law

enacted by the people of California and still meet the

twin policy goals of § 1983. We should not jettison California state law to maximize damages for § 1983

plaintiffs. I thus respectfully dissent.

App. 13

I.

Section 1983 does not require us to maximize damages.

Section 1983 serves as a powerful tool to vindicate

the constitutional rights of people who have suffered

harm at the hands of the government. 42 U.S.C. § 1983.

But because federal law does not provide for damages

in § 1983 actions, state law governs the availability of

damages unless it is “inconsistent” with the twin policy

goals of § 1983, compensation and deterrence. See Robertson v. Wegmann, 436 U.S. 584, 590–91 (1978); 42

U.S.C. § 1988(a). And for better or worse, California decided to bar “loss of life” damages in civil cases (though

it allows a panoply of other damages, including wrongful death and punitive damages). Cal. Civ. Proc. Code

§ 377.34.1 So we must determine whether California’s

ban on loss of life damages is “inconsistent” with the

goals of compensation and deterrence. Id.

Our analysis should start with the Supreme

Court’s decision in Robertson v. Wegmann, 436 U.S. 584

(1978). The plaintiff there had sued the government

for violating his constitutional rights but he passed

away before trial, and his estate tried to substitute

itself as the plaintiff. Louisiana’s statute, however,

extinguished a person’s tort claims at death, thus

1

Section 377.34 provides: “In an action or proceeding by a

decedent’s personal representative or successor in interest on the

decedent’s cause of action, the damages recoverable are limited to

the loss or damage that the decedent sustained or incurred before

death, including any penalties or punitive or exemplary damages

that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or

disfigurement.” Cal. Civ. Proc. Code § 377.34 (emphasis added).

App. 14

preventing an estate from recovering anything under

§ 1983. And because the plaintiff had no family members when he died, Louisiana’s law effectively barred

any damages. 436 U.S. at 590–91. While the unique

facts of that particular case led to no recovery and perhaps an unjust result, the Court held that the state law

was not “inconsistent” with § 1983 because “most Louisiana actions survive the plaintiff ’s death.” Id. Writing for the Court, Justice Marshall explained that

despite “the broad sweep of § 1983, we can find nothing

in the statute or its underlying policies to indicate that

state law causing abatement of a particular action

should invariably be ignored in favor of a rule of absolute survivorship.” Id. at 590–91. In other words, the

Court suggested that § 1983 does not trump state law

just because it does not provide maximum recovery for

plaintiffs.

But Robertson left open a more complex question:

Would a similar state law conflict with § 1983 if the

challenged governmental conduct directly caused the

plaintiff ’s death? Id. at 594. In Chaudhry, we answered this question in the narrow context of damages

for pre-death pain and suffering. Chaudhry v. City of

Los Angeles, 751 F.3d 1096, 1105 (9th Cir. 2014). In

that case, a police officer shot and killed a 21-year-old

autistic man sleeping in front of an apartment building. The police officer alleged that he had lunged towards him with a knife, a claim that was hotly

contested at trial. A jury awarded his estate $1 million

for pain and suffering, but California law bans damages for pre-death pain and suffering (though

App. 15

California allows someone who does not die to sue for

pain and suffering). This court reasoned that in “cases

where the victim dies quickly” and does not suffer any

pain and suffering, “there often will be no damage remedy at all.” Id. The opinion also noted that “a prohibition against pre-death pain and suffering awards for a

decedent’s estate has the perverse effect of making it

more economically advantageous for a defendant to

kill rather than injure his victim.” Id. Based on the

facts of that case, this court held that California’s ban

on pre-death pain and suffering was “inconsistent”

with § 1983’s goals of deterrence and compensation. Id.

The majority believes that Chaudhry controls this

case. It interprets that decision to allow federal common law to displace not only California’s ban on predeath pain and suffering (which was at issue in

Chaudhry) but also the prohibition on loss of life damages (which is at issue here). I do not read Chaudhry

as broadly as the majority does and believe it would be

unwise to expand its reach to loss of life damages (more

on that later).

California’s bar on loss of life damages does not

undermine § 1983’s goal of deterrence. This case is a

prime example. Not only are the defendants on the

hook for $9.6 million, but they will also likely have to

shell out millions more in attorneys’ fees. An eightfigure judgment deters even the largest city or police

department. Chaudhry also highlighted the potentially perverse incentive of allowing someone who does

not die to obtain pain and suffering damages but barring someone who does die from receiving those same

App. 16

damages. Id. But that incongruity does not exist for

loss of life damages because someone who does not die

cannot seek them. Thus, to borrow the language of

Chaudhry, California’s bar on loss of life damages does

not make death more “economically advantageous”

than injury. Id.

Nor does California’s bar on loss of life damages

undermine the goal of compensation. Chaudhry specifically focused on the danger that “there often will be

no damage remedy at all” if someone dies quickly and

experiences no pain and suffering. Id. at 1105 (emphasis added). Under those particular facts, California’s

state law might be “inconsistent” with § 1983’s goals of

deterrence and compensation. But that is not the case

here. Here, even without loss of life damages, Valenzuela’s estate and his children will still receive $9.6

million. While no amount of money can replace the loss

of Valenzuela’s life, that nearly eight-figure award is

not inconsistent with § 1983’s compensatory goal, especially given that pre-death pain and suffering damages

are now recoverable under Chaudhry.

The majority warns that California’s bar against

loss of life damages may hypothetically “preclude recovery for the decedent who is penniless, without family, and killed immediately on the scene.” Maj. Op. at

11. But the Supreme Court has already rejected that

argument: In assessing whether a state law is “inconsistent” with § 1983’s goals, we cannot refuse to apply

a state law just because it “caus[es] abatement of a particular action.” Robertson, 436 U.S. at 590–91 (emphasis added). Rather, we must take a broader view to see

App. 17

if the state law denies recovery under § 1983 in “most”

cases. Id. (upholding a state damages bar because

“most Louisiana actions survive the plaintiff ’s death”).

Put another way, courts cannot abrogate a state law

just because it may lead to a seemingly unjust result

in a particular § 1983 case. That is why the Court in

Robertson upheld the Louisiana state law: Even

though it meant that the plaintiff ’s estate would not

receive a penny, it was not “inconsistent” with § 1983

because plaintiffs in most cases would still obtain damages.

The majority opinion also suggests that the pain

and suffering and wrongful death damages do not adequately compensate Valenzuela’s estate and his surviving family members because these “awards address

different injuries.” Maj. Op. at 11. But neither § 1983

nor any court decision suggests that we can ignore a

state law unless it mandates damages for each theory

of harm suffered by the plaintiff or his survivors.

Simply put, we cannot supplant state law to mandate

maximum recovery for § 1983 plaintiffs. Rather, we

need to address whether the state law is inconsistent

with § 1983’s twin goals of deterrence and compensation. And here, I believe that $9.6 million satisfies both

of those important goals, and that we should thus respect the decision by the people of California to bar loss

of life damages.

App. 18

II.

We should revisit Chaudhry.

While I do not believe Chaudhry controls this case,

this court should still revisit that decision in a future

en banc proceeding because it misconstrued Robertson

and relied on flawed assumptions.

First, Chaudhry ignored the Supreme Court’s

guidance about when a state law is “inconsistent” with

§ 1983’s goals of deterrence and compensation. The

opinion incorrectly suggested that if a state law denies

recovery in a particular case or in some cases, that law

conflicts with § 1983. Chaudhry, 751 F.3d at 1104 (rejecting California’s ban on pre-death pain and suffering damages because the “practical effect” would be to

“often . . . eliminate . . . damage awards for the survivors of people killed by violations of federal law”).

But the Supreme Court in Robertson rejected such

an expansive reading of the word “inconsistent.” The

Court upheld the Louisiana law limiting damages—

even though it meant that the plaintiff in that case

would receive nothing—because plaintiffs in “most”

§ 1983 cases would still obtain recovery. Robertson, 436

U.S. at 590–91. As the Court explained, if “success of

the § 1983 action were the only benchmark, there

would be no reason at all to look to state law, for the

appropriate rule would then always be the one favoring the plaintiff, and its source would be essentially irrelevant.” Robertson, 436 U.S. at 593. Put another way,

a state law is “inconsistent” with § 1983’s goals only if

“most” § 1983 plaintiffs would not obtain recovery. But

Chaudhry turned Robertson on its head and implied

App. 19

that a state law is inconsistent whenever it denies recovery in any case or some cases.

Second, the facts in Chaudhry do not support its

reasoning. The court refused to apply California’s law

banning pre-death pain and suffering damages because following it would supposedly “eliminate . . .

damage awards for the survivors of people killed by violations of federal law.” Chaudhry, 751 F.3d at 1104.

But the facts of the case belie that assertion: “The jury

awarded $700,000 to the Chaudhrys for their wrongful

death claim under state law.” Id. at 1102. Curiously,

despite briefly mentioning this fact in the background

section of the opinion, the Chaudhry court never addressed why a wrongful death damages of $700,000

would not serve the goals of compensation and deterrence. So contrary to Chaudhry’s implication, California law compensated the plaintiffs, even without predeath pain and suffering damages. This omission

strikes at the core of Chaudhry’s reasoning for refusing

to follow state law.

Finally, the opinion relied on a dubious assumption that state law limiting damages would not deter

police officers and in fact may encourage them to deliberately kill suspects. It observed that “a prohibition

against pre-death pain and suffering awards for a decedent’s estate has the perverse effect of making it

more economically advantageous for a defendant to

kill rather than injure his victim.” Chaudhry, 751 F.3d

at 1104.

App. 20

That apparent assumption is not rooted in reality.

See, e.g., Carlson v. Green, 446 U.S. 14, 50 n.17 (1980)

(Rehnquist, J., dissenting) (rejecting the claim that

law enforcement officers “would intentionally kill the

individual or permit him to die, rather than violate his

constitutional rights to a lesser extent, in order to

avoid liability under Bivens”).

Chaudhry does not provide any support for its assumption that law enforcement officers would deliberately choose to kill, rather than injure, a suspect to

avoid potential liability for pre-death pain and suffering. Most fatalities involving law enforcement occur

during chaotic, messy, and dangerous situations in

which officers must make split-second decisions to

protect others’ lives or their own. See Jonathan Nix,

“On the Challenges Associated with the Study of Police

Use of Deadly Force in the United States: A Response

to Schwartz & Jahn,” (28 Jul. 2020), PLoS One 15(7);

e0236158 at *3, available at https://www.ncbi.nlm.nih.gov/

pmc/articles/PMC7386827/pdf/pone.0236158.pdf. (noting that “roughly 87% of the 5,134 citizens fatally shot

by police officers since 2015 were in possession of a potentially deadly weapon”) (citations omitted). All these

deaths are tragic, and many were unwarranted in

hindsight. But no evidence even remotely suggests

that these police officers acted out of some macabre desire to seek an “economically advantageous” outcome.

In other situations, a seemingly normal investigation or arrest spirals out of control, leading to a tragic

death. That is what happened here. Acting on a

woman’s complaint about a suspicious man following

App. 21

her, two Anaheim police officers approached Valenzuela in a laundromat. An officer asked him to put his

hands behind his back, but he did not comply. In the

ensuing struggle, all three men fell to the ground, and

one of the officers put him in a neck restraint. But

Valenzuela slipped away and fled the laundromat. One

of the officers tased him multiple times, but Valenzuela

sprinted across several lanes of traffic. The officers

caught up to him and tried to handcuff him, but Valenzuela resisted. During this five-minute encounter, the

officers told him to stop resisting 41 times, all to no

avail. Once the officers finally managed to put handcuffs on Valenzuela, the officer who had him in the

neck restraint released him immediately. Sadly, Valenzuela had lost consciousness and died eight days later.

As I noted in our related decision, I believe that the

officers used excessive force because it was obvious

that Valenzuela was in distress. But I do not believe

they made a calculated decision to kill him because it

would be “economically advantageous.” Indeed, once

they realized Valenzuela was unconscious, they tried to

resuscitate him through CPR.

Finally, even the most malevolent officer would not

kill a suspect because it would be “economically advantageous.” Almost all police officers today do not face

any personal financial liability because the government generally indemnifies them.2 The real deterrents

2

See Joanna C. Schwartz, “Qualified Immunity and Federalism All the Way Down,” 109 Geo. L.J. 305, 321 (2020) (discussing the development of state indemnification practices after the

Supreme Court invented modern qualified immunity). See also

App. 22

to police misconduct are not monetary damages (which

they do not personally pay anyway), but firings, negative media attention, and potential criminal liability.

Although we must construe § 1983 with a broad

remedial purpose, we cannot ignore the tension between Chaudhry and the actual law that Congress enacted. If Congress really thought that this court’s job

is to overwrite state law to maximize recovery, why

preserve state damages law? Robertson, 436 U.S. at

593. Surely, a uniform federal scheme would better accomplish that goal. Instead, Congress told us to respect

states’ sovereignty unless their law was “inconsistent”

with our own. 42 U.S.C. § 1988. Chaudhry ignores Congress’ directive as well as the will of the California people.

I respectfully dissent.

Martin A. Schwartz, “Should Juries Be Informed that Municipality Will Indemnify Officers’ § 1983 Liability for Constitutional

Wrongdoing?,” 86 Iowa L. Rev. 1209, 1217 (2001) (discussing the

common practice of state indemnification of officers entitled to

qualified immunity).

App. 23

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

SOUTHERN DIVISION

FERMIN VINCENT

VALENZUELA,

) Case No.: SACV

) 17-00278-CJC (DFMx)

) consolidated with

Plaintiff,

) SACV 17-02094-CJC

v.

) (DFMx)

) ORDER DENYING

CITY OF ANAHEIM,

) DEFENDANTS’

et al.,

) MOTION FOR

Defendants.

) JUDGMENT AS A

) MATTER OF LAW

)

VINCENT VALENZUELA [Dkt. 392], DENYING

) DEFENDANTS’

and XIMENA VALEN)

ZUELA by and through ) MOTION FOR NEW

TRIAL [Dkt. 393],

their guardian

)

PATRICIA GONZALEZ, ) AND GRANTING

IN SUBSTANTIAL

Plaintiffs,

) PART PLAINTIFFS’

)

v.

MOTION FOR

)

ATTORNEY FEES

CITY OF ANAHEIM,

) AND COSTS

et al.,

) [Dkt. 385]

)

Defendants.

) (Filed Mar. 11, 2020)

I.

INTRODUCTION

On July 2, 2016, members of the Anaheim Police

Department (the “APD”) applied a neck restraint on

Fermin Vincent Valenzuela Junior (“Mr. Valenzuela”).

Mr. Valenzuela died. The principal question in the trial

that resulted was whether it was appropriate for the

App. 24

APD officers to use a particular type of neck restraint

called the “carotid hold.” The carotid hold involves

wrapping an officer’s arm around a suspect’s neck, and

attempting to apply bilateral pressure only to the sides

of the neck. When applied correctly, the hold temporarily restricts blood flow from the carotid arteries to the

brain and causes the suspect to lose consciousness for

a few seconds, allowing the officers to gain control of

the suspect. The suspect then quickly regains consciousness.

In practice, however, the hold is extremely difficult

to execute, especially if a suspect is panicking or otherwise resisting. An improperly applied carotid hold can

morph into an “air choke hold,” which obstructs the

subject’s airway and prevents him from breathing.

Even when the carotid hold is properly applied, using

it too often or too long can cause permanent brain

damage or even death. Because the hold is so dangerous, many police departments have prohibited it completely, or limited its use to deadly force situations. At

the time of the incident in this case, APD had a policy

of permitting the carotid hold even in non-deadly force

situations. APD officers used it (or at least attempted

to) and Mr. Valenzuela died.

Plaintiffs Fermin Vincent Valenzuela Senior (Mr.

Valenzuela’s father, “Mr. Valenzuela Sr.”), Vincent

Valenzuela (Mr. Valenzuela’s son), and Ximena Valenzuela (Mr. Valenzuela’s daughter) brought this civil

rights action against Defendants City of Anaheim (the

“City”), Officers Daniel Wolfe, Officer Woojin Jun, and

Sergeant Daniel Gonzalez. In November 2019, they

App. 25

presented evidence to a jury supporting their claims

for excessive force, deprivation of substantive due process, municipal liability (on both unlawful policy and

failure to train theories), wrongful death (on both negligence and battery theories), and violation of the Bane

Act, Cal. Civ. Code § 52.1(b). After five days of trial, the

jury returned a verdict in favor of Mr. Valenzuela’s children, finding, among other things, that Officers Jun

and Wolfe used excessive force when they attempted to

use the carotid hold, that Sergeant Gonzalez was liable

as the supervising officer, and that the City’s policy

permitting the carotid hold in nondeadly force situations was unlawful. (Dkt. 358.) The trial proceeded to

a second phase on damages. After two additional days

of trial, the jury returned with a second verdict, awarding Mr. Valenzuela’s children a total of $13.2 million in

damages. (Dkt. 372.)

Before the Court are three post-trial motions: (1)

Defendants’ motion for judgment as a matter of law

(Dkt. 392, hereinafter “JMOL Mot.”), (2) Defendants’

motion for a new trial (Dkt. 393, hereinafter “New

Trial Mot.”), and (3) Plaintiffs’ motion for attorney fees

and costs (Dkt. 385, hereinafter “Fee Mot.”). For the following reasons, Defendants’ motions are DENIED and

Plaintiffs’ motion is GRANTED IN SUBSTANTIAL

PART.

II.

BACKGROUND

On the morning of July 2, 2016, Valentina Moya

feared a man was following her while she was walking

App. 26

home from work. She called her daughter, Enia Moya,

and asked her to call the police. Enia called the APD

and told them a Hispanic man in his late twenties carrying a blue duffel bag and wearing black pants, a

black shirt, a tan beanie, and burgundy shoes was following her mother. APD Officers Jun and Wolfe responded to a broadcast regarding a “suspicious person”

with this description at the corner of Magnolia Avenue

and West Broadway.

When Officers Jun and Wolfe arrived to Magnolia

and Broadway, they saw a man meeting Enia’s description enter a laundromat. As the officers walked toward

the man, who turned out to be Mr. Valenzuela, they

heard what they believed was a glass methamphetamine pipe breaking. At the time, Mr. Valenzuela’s bag

was on the floor in front of a washing machine, and he

was moving clothing from the bag into the machine.

Officer Wolfe asked him: “Howdy, you alright? You

break a pipe or something?” Mr. Valenzuela seemingly

did not respond.

Officer Wolfe then observed the handle of a screwdriver in Mr. Valenzuela’s bag. Officer Wolfe ordered

Mr. Valenzuela to put his hands behind his back. When

Mr. Valenzuela did not comply, Officer Wolfe grabbed

his right arm and started to pull it behind his back. A

struggle ensued where all three fell to the ground, and

Officer Jun attempted to control Mr. Valenzuela using

a neck restraint.

The parties disputed the type of neck restraint Officer Jun used. Officer Jun testified that he applied the

App. 27

carotid hold. Plaintiffs asserted that Officer Jun either

incorrectly applied the carotid hold or used an air

choke hold. Officer Jun held the neck restraint with his

right arm for twenty-two seconds, and with his left arm

for another minute and twenty seconds. The body-worn

camera footage clearly shows Mr. Valenzuela turning

purple and screaming that he could not breathe.

The struggle continued as Mr. Valenzuela slipped

out of his shirt, ran out the front door of the laundromat, overcame multiple tases, and ran across several

lanes of traffic on Magnolia Avenue. As Mr. Valenzuela

reached the parking lot of a 7-Eleven across the street,

he tripped on a curb and fell to the ground. Officer

Wolfe then got on top of Mr. Valenzuela and attempted

to roll him onto his stomach. When he could not get

Mr. Valenzuela on his stomach, Officer Wolfe placed his

arm around Mr. Valenzuela’s neck to get into position

to apply another restraint hold.

APD Sergeant Daniel Gonzalez came to the scene

to assist. As Officer Wolfe attempted to apply a neck

restraint, Sergeant Gonzalez took hold of Mr. Valenzuela’s left arm while Officer Jun still held his right.

The parties again disputed the type of neck restraint

applied. Sergeant Gonzalez testified that he saw Officer Wolfe apply a proper carotid hold that did not

place pressure on Mr. Valenzuela’s trachea. Plaintiffs

contended that Officer Wolfe either improperly applied

the carotid hold, or applied an air choke hold. Regardless, the video footage shows Officer Wolfe’s right arm

around Mr. Valenzuela’s neck for at least sixty seconds.

App. 28

With three officers now holding Mr. Valenzuela,

Sergeant Gonzalez supervised Officer Wolfe’s neck restraint. The video footage shows Mr. Valenzuela wheezing and having difficulty breathing. Nevertheless,

Sergeant Gonzalez repeatedly directed Officer Wolfe to

“hold that choke.” Officer Wolfe did. When Officer Wolfe

eventually loosened the restraint, he kept his arm

around Mr. Valenzuela’s neck and rolled him onto his

stomach. Sergeant Gonzalez then handcuffed Mr.

Valenzuela’s left arm and asked Officer Wolfe, “Are you

letting him breathe?” Officer Wolfe responded that he

was.

Mr. Valenzuela lost consciousness. When he did

not regain consciousness, Sergeant Gonzalez ordered

the officers to start CPR. Their efforts were unsuccessful. Paramedics transported Mr. Valenzuela to Western

Anaheim Medical Center, where he died eight days

later.

On February 15, 2017, Mr. Valenzuela’s father and

two children filed this case, asserting claims against

Officer Jun, Officer Wolfe, and Sergeant Gonzalez for

excessive force, deprivation of substantive due process,

wrongful death (on both negligence and battery theories), and violation of the Bane Act, and against the

City for municipal liability (on both unlawful policy

and failure to train theories). (See Dkt. 185 [Second

Amended Complaint].)

On November 12, 2019, the Court impaneled a

jury. (Dkt. 346.) Trial proceeded in two phases. After

five days of trial, the jury returned a verdict in favor of

App. 29

Mr. Valenzuela’s two children, Vincent and Ximena, on

the issue of liability for all of their claims except deprivation of substantive due process. The jury found

that Officers Jun and Wolfe used excessive force

against Mr. Valenzuela, and that Sergeant Daniel Gonzalez was liable as a supervisory defendant. (Dkt. 358.)

The jury also found that the three officers committed

battery that was a substantial factor in causing Mr.

Valenzuela’s death, and that the officers were negligent and their negligence was a substantial factor in

causing Mr. Valenzuela’s death. (Id.) The jury further

found that Mr. Valenzuela was contributorily negligent, and assigned 85% of fault to Officer Jun, Officer

Wolfe, and/or Sergeant Gonzalez, and 15% to Mr.

Valenzuela. (Id.) The jury also found the officers acted

with sufficient intent to violate Mr. Valenzuela’s rights

under the Bane Act. (Id.) However, the jury found that

none of the officers acted with a purpose to harm in

violation of Plaintiffs’ substantive due process rights.

(Id.) Finally, the jury found that the City was liable because it had an unlawful official policy, practice, or custom, but that it was not liable for a failure to train. (Id.)

After a second phase of the trial on the issue of

damages, the jury returned a verdict awarding survival damages of $3,600,000 for Mr. Valenzuela’s loss

of life and $6,000,000 for his pre-death pain and suffering. (Dkt. 372.) The jury also awarded $1,800,000

each to Vincent and Ximena Valenzuela for wrongful

death damages for their past and future loss of Mr.

Valenzuela’s love, companionship, comfort, care,

App. 30

assistance, protection, affection, society, moral support,

training, and guidance. (Id.)

III. DEFENDANTS’ MOTION FOR JUDGMENT

AS A MATTER OF LAW

Defendants first move for judgment as a matter of

law. A party seeking judgment as a matter of law has

a “very high” standard to meet. Costa v. Desert Palace,

Inc., 299 F.3d 838, 859 (9th Cir. 2002), aff ’d, 539 U.S.

90 (2003). Specifically, a court may enter judgment as

a matter of law only if “a reasonable jury would not

have a legally sufficient evidentiary basis to find for

the [prevailing] party” as to an issue on which that

party has been fully heard during trial. Fed. R. Civ. P.

50(a)–(b). The jury’s verdict must be upheld if, viewing

the facts in the light most favorable to the nonmoving

party, there is substantial evidence for a reasonable

jury to have found in the nonmoving party’s favor.

Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d

1222, 1227 (9th Cir. 2001). When considering the motion, the court must draw all reasonable inferences in

favor of the nonmoving party, and it may not make

credibility determinations or weigh the evidence. Velazquez v. City of Long Beach, 793 F.3d 1010, 1018 (9th

Cir. 2015). The “high hurdle” this standard creates

“recognizes that credibility, inferences, and factfinding

are the province of the jury, not this court.” Costa, 299

F.3d at 859.

App. 31

A. Excessive Force

Defendants argue that they are entitled to judgment as a matter of law on all claims because the evidence at trial demonstrated the officers’ use of force

was objectively reasonable. (JMOL Mot. at 18–21.) Defendants are wrong. Under the Fourth Amendment, a

police officer may use only such force as is “objectively

reasonable” under all of the circumstances. Graham v.

Connor, 490 U.S. 386, 397 (1989). “The ‘reasonableness’

of a particular use of force [is] judged from the perspective of a reasonable officer on the scene, rather than

with the 20/20 vision of hindsight.” Id. at 396; see also

Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015).

Factfinders assess reasonableness using several nonexhaustive factors: “the severity of the crime at issue,

whether the suspect poses an immediate threat to the

safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by

flight.” Graham, 490 U.S. at 396. The most important

factor is whether the suspect posed an immediate

threat. Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir.

2011).

The evidence at trial showed that the carotid hold

is extremely dangerous. (See, e.g., Dkt. 409 [Transcript

from Trial Day 2, 11/13/19, AM, hereinafter “Day 2

AM”] at 122–23 [Officer Wolfe]; Dkt. 410 [Transcript

from Trial Day 3, 11/14/19, AM, hereinafter “Day 3

AM”] at 95 [Officer Jun]; Dkt. 411 [Transcript from

Trial Day 4, 11/15/19, AM, hereinafter “Day 4 AM”] at

41 [Sergeant Gonzalez]; Dkt. 412 [Transcript from

Trial Day 5, 11/18/19, AM, hereinafter “Day 5 AM”] at

App. 32

74 [Joe Callanan].) It involves wrapping an officer’s

arm around a suspect’s neck, and attempting to apply

pressure only to the sides of the neck. This is very difficult even under model conditions. And if there is any

level of struggle or resistance, it is even more difficult

to execute the carotid hold appropriately. Moreover,

just one minute of pressure on the carotid artery, even

when applying the hold correctly, can cause permanent

brain tissue damage. (Dkt. 428 [Transcript from Trial

Day 4, 11/15/19, PM, hereinafter “Day 4 PM”] at 94

[Sergeant Ciscel].) And as this case showed, attempting to use the hold can interfere with a person’s ability

to breathe and kill him. Because the carotid hold is so

dangerous, many police departments have prohibited

its use completely, or limited its use to deadly force situations. (See, e.g., Day 2 AM at 21–23 [Scott DeFoe];

Day 4 AM at 44 [Sergeant Gonzalez]; Day 4 PM at 108–

09 [Sergeant Ciscel]; Day 5 AM at 74 [Joe Callanan].)

Especially troubling here was the compelling evidence that the officers did not apply this very dangerous hold in the way they were taught to—they applied

it for too long, too often, and to the front of Mr. Valenzuela’s neck, ignoring Mr. Valenzuela’s clear symptoms

of distress. Specifically, the officers applied the carotid

hold for over two and a half minutes, despite statements in the Peace Officer Standards and Training

(“POST”) learning domain that pressure on the carotid

for just 60 seconds can cause permanent brain tissue

damage. See Headwaters Forest Def. v. Cty. of Humboldt, 276 F.3d 1125, 1131 (9th Cir. 2002), as amended

(Jan. 30, 2002) (relying on “regional and state-wide

App. 33

police practice and protocol” in qualified immunity

analysis); (Day 4 PM at 94 [Sergeant Ciscel]; see Day 5

AM at 22 [Joe Callanan testifying that a properly applied carotid hold “should render a person unconscious

briefly in a matter of seconds”].) Also contrary to POST,

the officers used the carotid hold more than twice in 24

hours. (Day 2 AM at 46 [Scott DeFoe].) In addition,

they applied pressure to the front of Mr. Valenzuela’s

neck. (See Day 4 PM at 109 [Sergeant Ciscel testifying

that proper application of the carotid hold should not

cause hyoid bone fracture]; Day 2 AM at 56 [Scott DeFoe agreeing]; Dkt. 426 [Transcript from Trial Day 2,

11/13/19, PM, hereinafter “Day 2 PM”] at 15–16 [Coroner Dr. Aruna Singhania testifying that Mr. Valenzuela’s hyoid bone was broken]; Day 4 AM at 62, 65 [Dr.

Bennet Omalu testifying the same].) Finally, the officers ignored numerous clear signs that Mr. Valenzuela

was having trouble breathing. (See, e.g., Day 2 AM at

47 [Scott DeFoe testifying that if “someone’s gasping

and their face is red, you should be able to look and say,

‘This is not working’ ”]; Day 4 PM at 62–63 [Dr. Gary

Vilke testifying that the neck restraint was not released until 35 seconds after snoring indicating difficulty breathing began].) Mr. Valenzuela was turning

purple, wheezing, gasping for air, and screaming that

he could not breathe.

The jury’s finding of excessive force was further

supported by evidence showing that when the officers

approached Mr. Valenzuela in the laundromat, they

had little to no information that he had committed any

crime—only that he was a “suspicious person.” See

App. 34

Graham, 490 U.S. at 396 (including “the severity of the

crime at issue” as one of the factors bearing on reasonableness); (see Day 3 AM at 92–93 [Officer Jun testifying that they did not have any information that Mr.

Valenzuela had harmed or had threatened to harm anyone]). Although Mr. Valenzuela was resisting or attempting to evade arrest at times, the most important

factor is whether he posed an immediate threat to the

officers or others. See Graham, 490 U.S. at 396; Mattos,

661 F.3d at 441. There was no evidence that Mr. Valenzuela was armed at any point in his interactions with

the officers. (See, e.g., Day 3 AM at 92–93 [Officer Jun

testifying that he did not see a weapon in Mr. Valenzuela’s hand or on his person]; Day 2 AM at 143 [Officer Wolfe testifying that he saw the handle of a

screwdriver in Mr. Valenzuela’s bag, but never indicating that Mr. Valenzuela accessed the screwdriver or

any other potential weapon].) Nor was he taking any

action that posed a threat of serious bodily injury to

officers or to others. And he certainly posed very little

threat during the final neck restraint when Officer

Wolfe was on top of him and Officer Jun and Sergeant

Gonzalez were holding his arms.

Viewing the facts in the light most favorable to

Plaintiffs, and drawing all reasonable inferences in

their favor, there was substantial evidence that the

officers used excessive force, and the jury reasonably

concluded they did. See Johnson, 251 F.3d at 1227;

Velazquez, 793 F.3d at 1018. The carotid hold was dangerous, and the officers knew it. But they used it anyway. They used it despite the fact that Mr. Valenzuela

App. 35

was not suspected of any serious crime and did not

pose an immediate threat. Worse yet, they applied it in

a way they were told not to—more times than they

should have, for longer than they should have, and despite numerous indications that Mr. Valenzuela was in

pain and distress. And they applied pressure to the

center of Mr. Valenzuela’s neck, making it impossible

for him to even breathe. Tragically, their use of the carotid hold on Mr. Valenzuela led to his unnecessary

death.

B. Qualified Immunity

Defendants argue that Officer Wolfe, Officer Jun,

and Sergeant Gonzalez are entitled to qualified immunity on Plaintiffs’ § 1983 claims. (JMOL Mot. at 2–

8.) Qualified immunity shields public employees from

§ 1983 liability if “their conduct does not violate clearly

established statutory or constitutional rights of which

a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). To determine

whether qualified immunity applies, courts evaluate

(1) whether the employee’s conduct violated a constitutional right, and (2) whether that right was clearly

established at the time of the incident. Pearson v. Callahan, 555 U.S. 223, 232 (2009). As discussed in the

preceding section, there is no question here that the

first prong is met. Rather, Defendants focus on the second prong, arguing that there was no clearly established law at the time of the incident that would make

a reasonable officer aware that using the carotid hold

App. 36

on Mr. Valenzuela was unreasonable under the circumstances.

“To be clearly established, a right must be sufficiently clear that every reasonable official would have

understood what he is doing violates that right.”

Hamby v. Hammond, 821 F.3d 1085, 1090 (9th Cir.

2016) (quoting Taylor v. Barkes, 135 S. Ct. 2042, 2044

(2015)) (per curiam) (emphasis in Hamby). “Although

a plaintiff need not find ‘a case directly on point, existing precedent must have placed the . . . constitutional

question beyond debate.’ ” Id. at 1091 (quoting Ashcroft

v. Al-Kidd, 563 U.S. 731, 741 (2001)). The Court must

make its inquiry “in light of the specific context of the

case, not as a broad general proposition.” Mullenix v.

Luna, 136 S. Ct. 305, 308 (2015).

Officer Jun, Officer Wolfe, and Sergeant Gonzalez

are not entitled to qualified immunity. Every reasonable officer on July 2, 2016 knew the carotid hold was

dangerous. Wrapping an officer’s arm around a suspect’s neck and attempting to apply pressure only to

the sides of the neck is very difficult, especially where

there is any level of struggle or resistance, as there was

here. (Day 2 AM at 122–23 [Officer Wolfe]; Day 3 AM

at 95 [Officer Jun]; Day 5 AM at 74 [Joe Callanan].)

Even when an officer executes the hold properly, using

it for just one minute can cause permanent brain tissue damage. (Day 4 PM at 94 [Sergeant Ciscel].) Because the carotid hold is so dangerous, and can cause

serious injury or death, many police departments have

prohibited it altogether, or limited its use to deadly

force situations. (See, e.g., Day 2 AM at 21–23 [Scott

App. 37

DeFoe]; Day 4 AM at 44 [Sergeant Gonzalez]; Day 4 PM

at 108–09 [Sergeant Ciscel]; Day 5 AM at 74 [Joe Callanan].)

Moreover, every reasonable officer on July 2, 2016

knew that using the carotid hold for more than two

minutes and thirty seconds and more than twice in 24

hours, applying pressure to the center of the neck, and

continuing the hold despite clear signs that the subject

could not breathe was an unreasonable use of force. See

Hamby, 821 F.3d at 1090. Yet the officers here did exactly that. They applied the carotid hold for far longer

than the period POST teaches can cause permanent

brain tissue damage. (Day 4 PM at 94 [Sergeant Ciscel]; see Day 5 AM at 22 [Joe Callanan].) They used it

more than twice in 24 hours. (Day 2 AM at 46 [Scott

DeFoe explaining that POST says not do to this]); see

Headwaters, 276 F.3d at 1131 (relying on “regional and

state-wide police practice and protocol” in qualified immunity analysis). They applied pressure to the front of

the neck, preventing Mr. Valenzuela from breathing.

(See Day 4 PM at 109 [Sergeant Ciscel]; Day 2 AM at

56 [Scott DeFoe]; Day 2 PM at 15–16 [Dr. Singhania];

Day 4 AM at 62 [Dr. Omalu].) And they continued the

hold despite numerous clear signs that Mr. Valenzuela

was having trouble breathing—he was turning purple,

wheezing, gasping for air, and screaming that he could

not breathe. (See, e.g., Day 2 AM at 47 [Scott DeFoe];

Day 4 PM at 62–63 [Dr. Vilke].) All of this despite the

fact that Mr. Valenzuela was merely a “suspicious person,” was not armed, and was not posing any immediate threat.

App. 38

The circumstances in this case are similar to those

in Drummond v. City of Anaheim, 343 F.3d 1052 (9th

Cir. 2003). There, with Mr. Drummond on the ground

and his hands cuffed behind him, officers put their

knees on his back and neck and placed the weight of

their bodies on him. Id. at 1054. He “soon fell into respiratory distress,” told the officers he could not breathe

and that they were choking him, and asked for a glass

of water. Id. at 1054–55. One eyewitness said the man

was “obviously” having trouble breathing. Id. at 1055.

After the officers then used a “hobble restraint,” binding his ankles, he went limp and lost consciousness. Id.

Mr. Drummond went into a “permanent vegetative

state.” Id. The Ninth Circuit held “that, under the circumstances, a reasonable officer would have had fair

notice that the force employed was unlawful, and that

any mistake to the contrary would have been unreasonable.” Id. at 1060. The Circuit further found that

the law at that time was clearly established, and “any

reasonable officer would have known that the force

used amounted to a constitutional violation.” Id. at

1062.

Drummond is not the only case on point. See, e.g.,

Booker v. Gomez, 745 F.3d 405, 425 (10th Cir. 2014)

(finding clearly established law made qualified immunity inappropriate where carotid hold was applied

for two minutes and 55 seconds, despite training to use

it only for one minute, during which time the suspect

was handcuffed, 50-75% of officer’s body weight put on

suspect’s back, and tased); Weigel v. Broad, 544 F.3d

1143, 1154 (10th Cir. 2008) (finding clearly established

App. 39

law precluded qualified immunity where, “even after it

was readily apparent for a significant period of time

(several minutes) that [the suspect] was fully restrained and posed no danger, the defendants continued to use pressure on a vulnerable person’s upper

torso while he was lying on his stomach”).

Simply stated, every reasonable officer on July 2,

2016 would have understood that applying the carotid

hold for longer than a minute, more than once, with

pressure on the front of the neck, despite clear signs

the suspect could not breathe, was an excessive use of

force. Qualified immunity does not apply.

C. Bane Act

Defendants argue they are entitled to judgment as

a matter of law on Plaintiffs’ Bane Act claim because

there was no evidence that the officers had the specific

intent to violate Mr. Valenzuela’s rights. (JMOL Mot.

at 16.) Although the elements of a Bane Act excessive

force claim are similar to a § 1983 excessive force

claim, the Bane Act requires an additional element of

specific intent. Reese v. Cty. of Sacramento, 888 F.3d

1030, 1044–45 (9th Cir. 2018). To violate the Bane Act,

a defendant must have “intended not only the force,

but its unreasonableness, its character as more than

necessary under the circumstances.” Id. at 1045 (quoting United States v. Reese, 2 F.3d 870, 885 (9th Cir.

1993)) (internal quotation marks omitted). “[I]t is not

necessary for the defendants to have been “thinking

in constitutional or legal terms at the time of the

App. 40

incidents, because a reckless disregard for a person’s

constitutional rights is evidence of a specific intent to

deprive that person of those rights.” Id.

Contrary to Defendants’ assertion, there was substantial evidence that Officers Jun and Wolfe had a

specific intent to use unreasonable force and that Sergeant Gonzalez had a specific intent to permit and encourage that use of unreasonable force. All three

officers testified that they knew the carotid hold was

dangerous. Officer Wolfe testified that at the time he

used the hold, he knew he should not apply the carotid

for more than 30 seconds, and that a properly applied

carotid hold should not interfere with someone’s ability to breathe. (Day 2 AM at 122–23.) He further knew

on the day of the incident that an improperly applied

carotid hold could interfere with someone’s ability to

breathe, and if he put pressure in the front of the neck

rather than the sides, that could cause serious injury

or death. (Id.) Officer Jun testified similarly that he

was trained to be careful in applying the carotid hold

because applying pressure to the front of a neck could

cause serious injury or death. (Day 3 AM at 95.) Sergeant Gonzalez testified that prolonged use of the carotid hold can cause serious injury or death, and that

he knew other departments had prohibited the use of

the carotid hold. (Day 4 AM at 41, 44.) Nevertheless,

the officers deliberately chose to apply the carotid hold

on Mr. Valenzuela.

Making matters worse, the officers applied or directed its application in a way contrary to POST—for

longer than 60 seconds, more than twice in 24 hours,

App. 41

and ignoring signs that Mr. Valenzuela was having

trouble breathing. They also applied it contrary to APD

policy and practice, which was to not use the carotid

hold for longer than 30 seconds. (Day 4 PM at 94 [Sergeant Ciscel explaining APD training to use the hold

for 30 seconds, and if a suspect has not “gone out, reassess the hold or move on to a different force option”].)

Moreover, Mr. Valenzuela was not presenting an immediate threat—indeed, for much of the final hold, Mr.

Valenzuela was on his stomach, Officer Wolfe was on

top of his back, and Officer Jun and Sergeant Gonzalez

were holding his hands. (See Day 4 AM at 41–42.)

Based on the substantial evidence presented, the jury

reasonably inferred an intent to use unreasonable

force from the fact that the officers deliberately chose

to use a dangerous hold and then used it contrary to

POST and APD training despite many signs that Mr.

Valenzuela was in pain and distress.1

1

Defendants also argue that the jury’s verdict on the Bane

Act claim was inconsistent with its verdict on the substantive due

process claim. Not so. To prove a substantive due process violation, Plaintiffs had to prove that “Officer Wolfe, Officer Jun,

and/or Sergeant Gonzalez acted with a purpose to harm Mr.

Valenzuela that was not related to a legitimate law enforcement

objective,” which “include detention, arrest, self-defense, or the

defense of others.” (Dkt. 360 [Court’s Instruction No. 16, emphasis added].) Based on the substantial evidence presented, the jury

reasonably concluded that the officers intended to use unreasonable force, as described above, but did not act with a purpose to

harm Mr. Valenzuela unrelated to any legitimate law enforcement objective. Put simply, the officers intended to use excessive

force to gain complete control and arrest Mr. Valenzuela, but they

did not intend to kill him.

App. 42

D. Monell

To prevail on their Monell claim on an unlawful

custom, practice, or policy theory, Plaintiffs had to

prove: (1) that the officers acted under color of state

law, (2) that the officers deprived Mr. Valenzuela of his

constitutional rights, (3) that the officers acted pursuant to an expressly adopted official policy or a widespread or longstanding practice or custom of the APD,

and (4) that the APD’s official policy, practice, or custom caused the deprivation of Mr. Valenzuela’s rights.

(Dkt. 360 [Court’s Instruction No. 13].) Defendants argue that judgment as a matter of law is appropriate

because “plaintiffs never articulated what the specific

custom, practice or policy of the City was that led to a

violation of Valenzuela’s rights.” (JMOL Mot. at 14.)

Defendants are wrong. Defendants admitted the City

had a well-established policy of directing its officers to

apply the carotid hold to gain control of a suspect, even

in non-deadly force situations. (See Day 4 AM at 34

[Sergeant Gonzalez testifying that APD policy does not

classify the carotid hold as deadly force]; Day 4 PM at

71, 82, 89 [Sergeant Ciscel describing the APD’s policy

regarding the carotid hold, and testifying that Officer

Jun and Officer Wolfe’s use of the carotid hold was

within that policy].) There was no question at trial as

to what the relevant policy was. The question was

whether that policy was lawful. Based on the substantial evidence presented at trial, the jury reasonably

concluded that it was not. See Johnson, 251 F.3d at

1227.

App. 43

Specifically, Plaintiffs presented compelling evidence that the carotid hold is extremely dangerous.

Even properly applied, for example, one minute on the

carotid artery can cause permanent brain tissue damage. (Day 4 PM at 94 [Sergeant Ciscel testifying about

what POST teaches].) Misapplication of the carotid

hold—which again is very easy in situations where

there is even minimal struggle—including by applying

pressure to the front of the neck, can cause serious injury or death. (See, e.g., Day 2 AM at 122–23 [Officer

Wolfe]; Day 3 AM at 95 [Officer Jun]; Day 4 AM at 41

[Sergeant Gonzalez]; Day 5 AM at 74 [Joe Callanan

testifying that improper application of the carotid hold

can cause serious injury or death].)

Plaintiffs further presented evidence that because

the carotid hold is so dangerous, other police departments prohibit use of the carotid altogether, and that

others, like the LAPD, prohibit it in non-deadly force

situations. (See, e.g., Day 2 AM at 21–23 [Scott DeFoe

testifying that “[m]any departments throughout the

country prohibit the use of (the carotid hold) altogether,” and the LAPD puts it “on the same parallel

with utilization of a firearm . . . [s]o you only can use

the carotid restraint hold if . . . an imminent threat of

great bodily injury or death exists, not when someone

is just being resistive, like in this case”]; Day 4 AM at

44 [Sergeant Gonzalez stating that the carotid hold is

not allowed in some police departments, “[b]ut it’s in

my policy and a lot of different policies”]; Day 4 PM at

108–09 [Sergeant Ciscel testifying that he has heard

complaints about the carotid hold throughout his

App. 44

career and some departments classify it as deadly

force]; Day 5 AM at 74 [Joe Callanan testifying that

LAPD classifies the carotid hold as deadly force].) But

the APD decided that the carotid, in Sergeant Gonzalez’s words, was “a good option to render someone temporarily unconscious and make them secure.” (Day 4

AM at 19.)

Plaintiffs also presented substantial evidence that

the APD’s policy caused the deprivation of Mr. Valenzuela’s constitutional rights. (See Day 2 PM at 26–29

[coroner Dr. Singhania testifying regarding the cause

of death]; Day 4 AM at 64–65, 71–72 [Dr. Omalu testifying that cause of death was asphyxiation and that

“[t]here is no scientific evidence that methamphetamine killed him or hypertension killed him”].) Indeed,

it caused his tragic death.

IV. DEFENDANTS’ MOTION FOR NEW TRIAL

Even where judgment as a matter of law is not appropriate because substantial evidence supports the

jury’s verdict, a court may grant a new trial if “the verdict is contrary to the clear weight of the evidence, or

is based upon evidence which is false, or to prevent, in

the sound discretion of the trial court, a miscarriage of

justice.” Silver Sage Partners, Ltd. v. City of Desert Hot

Springs, 251 F.3d 814, 819 (9th Cir. 2001) (quoting

United States v. 4.0 Acres of Land, 175 F.3d 1133, 1139

(9th Cir. 1999)); see Fed. R. Civ. P. 59(a)(1)(A) (stating

that courts may grant a new trial “for any reason for

App. 45

which a new trial has heretofore been granted in an

action at law in federal court”).

A. Monell

Defendants argue a new trial is warranted on

their Monell claim because the jury’s verdict on that

claim was contrary to the clear weight of the evidence.

Defendants are wrong. The clear weight of the evidence showed that the carotid hold is extremely dangerous, even when properly applied, and that there is

a serious possibility that using the carotid hold may

cause serious injury or death. (See Day 2 AM at 122–

23 [Officer Wolfe]; Day 3 AM at 95 [Officer Jun]; Day 4

AM at 41 [Sergeant Gonzalez]; Day 5 AM at 74 [Joe

Callanan].) Because the hold is so dangerous, other police departments had prohibited it or restricted its use

to deadly force situations. (See, e.g., Day 2 AM at 21–23

[Scott DeFoe]; Day 4 AM at 44 [Sergeant Gonzalez];

Day 4 PM at 108–09 [Sergeant Ciscel]; Day 5 AM at 74

[Joe Callanan].) The APD directed its officers to use the

carotid hold despite the dangers. (See Day 4 AM at 34

[Sergeant Gonzalez]; Day 4 PM at 71, 82, 89 [Sergeant

Ciscel].) What’s more, they directed their officers to use

it even in non-deadly force situations. (See id.)2 The

2

Defendants argue that Plaintiffs failed to present evidence

of deliberate indifference. (New Trial Mot. at 6–7.) However, they

confuse the requirements for finding municipal liability for failure

to train with liability for an unlawful official policy, practice, or

custom. Deliberate indifference is an element for failure to train,

but there is no such requirement for an unlawful policy. (Compare

Dkt. 360 [Court’s Instruction No. 13] with id. [Court’s Instruction

No. 14].)

App. 46

jury’s verdict on Plaintiffs’ Monell claim was not contrary to the clear weight of the evidence.

B. Bane Act

Defendants argue that the Court should grant a

new trial on Plaintiffs’ Bane Act claim because Plaintiffs did not present any evidence showing the officers

acted with the requisite intent. (New Trial Mot. at 9–

11.) The Court disagrees. The officers all testified that

they knew the carotid hold was dangerous. (Day 2 AM

at 122–23 [Officer Wolfe]; Day 3 AM at 95 [Officer Jun];

Day 4 AM at 41, 44 [Sergeant Gonzalez].) Nevertheless, they decided to use the hold, and further decided

to use it in a way contrary to POST and APD policy.

Specifically, they used the hold more times than they

were taught to, for longer than they were taught to,

and despite numerous signs that Mr. Valenzuela was

in pain, distress, and having trouble breathing. The

clear weight of the evidence showed that the officers

intended to use unreasonable force.

C. Allocation of Fault

Defendants argue that a new trial is warranted

because the jury’s allocation of fault—85% to Officer

Jun, Officer Wolfe, and/or Sergeant Gonzalez, and 15%

to Mr. Valenzuela—was contrary to the weight of the

evidence. (New Trial Mot. at 11–14.) They point to evidence that Mr. Valenzuela had a methamphetamine

pipe, did not put his hands behind his back when officers instructed him to, resisted arrest, and struggled

App. 47

with the officers. (Id. at 12.) They also point to the medical examiner’s determination that the cause of death

was “a complication of asphyxia during the struggle

with the law enforcement officer under the influence of

methamphetamine and cardiomegaly [enlarged heart]

as other condition contributing in the death.” (Day 2

PM at 24.)

Defendants miss the point. Mr. Valenzuela was not

a saint. He did not obey every command officers gave

him. He ran across the street after the struggle in the

laundromat. He resisted arrest. But the evidence

showed it was totally unnecessary to use this extremely dangerous hold. Mr. Valenzuela was not

armed. He was taking no action that threatened serious bodily injury to officers or to others. Indeed, during

the final hold, Mr. Valenzuela was on the ground with

one officer on top of him, one officer holding his right

arm, and another officer holding his other arm. Mr.

Valenzuela did not deserve to die. The jury’s allocation

of fault was not contrary to the clear weight of the evidence.

D. Misconduct by Plaintiffs’ Counsel

Defendants next argue that a new trial is warranted because four instances of purported “misconduct” by Plaintiffs’ counsel, taken together, “permeated

the entire trial” and “clearly demonstrate that the verdict was the result of passion.” (New Trial Mot. at 15;

Dkt. 421 [New Trial Reply] at 2.) To receive a new trial

because of attorney misconduct, Defendants must

App. 48

meet a very high standard: the misconduct must have

“substantially interfered with [Defendants’] interest,”

and the “flavor of [the] misconduct must sufficiently

permeate an entire proceeding to provide conviction

that the jury was influenced by passion and prejudice

in reaching its verdict.” S.E.C. v. Jasper, 678 F.3d 1116,

1129 (9th Cir. 2012). This standard is not even close to

being met here.

The first alleged act of “misconduct” Defendants

argue warrants a new trial is Plaintiffs’ counsel Garo

Mardirossian’s comment in opening statement that

Mr. Valenzuela and his sister were sexually and physically abused as children by their step-grandfather.

(Dkt. 425 [Transcript from Trial Day 1, 11/12/19, PM

[hereinafter “Day 1 PM”] at 24.) As background, many

of the Court’s rulings on Plaintiffs’ fourteen motions in

limine and Defendants’ eleven motions in limine favored Defendants. (See Dkt. 325.) For example, the

Court ruled that in both the liability and damages

phases, Defendants could introduce evidence that Mr.

Valenzuela was under the influence of drugs at the

time of the incident, that Mr. Valenzuela had a drugrelated criminal history, that officers heard a methamphetamine pipe break in the laundromat, and that Defendants could refer to Mr. Valenzuela as an “addict.”

(Id. at 13–18.) The Court concluded that this evidence

was relevant to critical questions at trial, including

whether the force used was reasonable and whether

the carotid hold caused Mr. Valenzuela’s death. (Id.)

In an attempt to explain the evidence regarding

Mr. Valenzuela’s drug and criminal history that

App. 49

Defendants were going to introduce, Mr. Mardirossian

referred to childhood abuse in his opening statement.

(Day 1 PM at 24.) The Court immediately sustained

Defendants’ objection to the comment, stating that this

evidence would be appropriate for the damages phase

but not the liability phase. (Id.) Although evidence regarding childhood abuse was certainly relevant (and

the jury was going to find out about it in the damages

phase), during the liability phase it would have unduly

delayed the trial and confused the jury. The evidence

was not prejudicial to Defendants—indeed, mentioning the childhood abuse essentially confirmed that Mr.

Valenzuela had a drug problem.

Defendants moved for a mistrial based on Mr.

Mardirossian’s comment. (Day 1 PM at 47–51.) The

Court denied the motion. (Id. at 51.) Nevertheless, the

Court agreed to instruct the jury again after opening

statements that those statements are not evidence and

that the jury may not consider them in deciding what

the facts are. (Day 1 PM at 82; see id. at 11 [Court’s

pre-trial instruction that an opening statement is not

evidence].) The Court specifically addressed Mr.

Mardirossian’s comment about sexual abuse:

One of the critical issues in the liability phase

is whether the force used by the officers was

excessive under the totality of the circumstances. Whether Mr. Valenzuela was under

the influence of methamphetamine and

whether he had an enlarged heart due to

methamphetamine use are relevant to

whether the force used by the officers was

App. 50

excessive and, if so, whether that force was

the substantial factor in causing Mr. Valenzuela’s death. The reasons why Mr. Valenzuela may have taken methamphetamine

before the encounter with the police officers or

the reasons why he may have had a methamphetamine abuse problem are not relevant to

the liability issues. I’m instructing you that

you cannot consider those reasons during

your deliberations for the first phase, liability

issues.

(Id.) After trial, the Court again instructed the jury

that both opening statements and closing arguments

are not evidence. (Dkt. 360 [Court’s Instruction No. 4].)

The second instance of purported “misconduct” are

two questions by Plaintiffs’ counsel Dale Galipo. Specifically, Mr. Galipo asked Officer Wolfe and Officer Jun

whether they were trained on how to deal with people

with post-traumatic stress disorder. (Day 2 AM at 141;

Dkt. 427 [Transcript from Trial Day 3, 11/14/19, PM]

at 31.) Defendants objected to these questions based on

relevance and under Federal Rule of Civil Procedure

403. The Court overruled the objections. The testimony

Mr. Galipo elicited was relevant to at least two issues:

first, whether the force used was reasonable, including

because the video of the incident made clear that Mr.

Valenzuela had mental health issues, and second,

whether the APD failed to train its officers, especially

given the possibility that individuals with mental

health issues may not submit to police authority as a

rational person would. In response to Mr. Galipo’s

question, Officer Wolfe testified that officers learn

App. 51

about “a variety of conditions,” but the focus of training

“is behavior, how to keep them safe, and how to keep

the public safe,” and the questioning then moved to

safety. (Day 2 AM at 141–142.) Officer Jun testified

that he did not remember whether he was trained on

post-traumatic stress disorder specifically, and the

questioning quickly turned to what force is reasonably

necessary. (Id. at 31–32.) The Court instructed the jury

that questions and objections by lawyers are not evidence. (Id.)

The third occurrence of supposed “misconduct” is

that during his closing argument at the damages

phase, Mr. Galipo mentioned (accurately) that the City

of Anaheim was a defendant in the case. (Dkt. 414

[Transcript from Trial Day 7, 11/20/19, hereinafter

“Day 7”] at 40.) Defendants did not object. (Id.) However, Defendants now contend that this isolated statement “violat[ed] their agreement and the Court’s

subsequent order that there be no mention that the

City would pay any judgment entered against the officers.” (New Trial Mot. at 16.) But Mr. Galipo never

said the City would pay any judgment. His statement

did not violate any Court order, nor did it prejudice the

Defendants in any way. Moreover, the Court instructed

the jury on what it could and could not consider in deciding how much to award damages. (Dkt. 377 [Court’s

Instruction Nos. 1–4].)

The fourth instance of asserted “misconduct” is

that Plaintiffs introduced during the damages phase a

letter that Plaintiffs did not produce in discovery. (New

Trial Mot. at 17; see Dkt. 430 [Transcript from Trial

App. 52

Day 6, 11/19/19, PM, hereinafter “Day 6 PM”] at 16–

19.) This was a handwritten letter Mr. Valenzuela

wrote to the mother of his children, Patricia Gonzalez.

(Day 6 PM at 16.) Ms. Gonzalez testified that in the

letter, Mr. Valenzuela asked how “little Vince” was doing in school. (Id.) He wrote, “Man, I’m so proud of him

for being such a good boy and attending [the ‘Cops for

Kids’] program.” (Id. at 17.) He continued, “I love him.

Miss him. He’s always going to be my big guy.” (Id.)

Turning to his daughter, Mr. Valenzuela wrote, “My

Little Ximena. How is she doing in school? Oh, my baby

girl. She’s still a baby I love her to heck.” (Id.) He

added, “it’s cool when she sings.” (Id. at 18.) This evidence showed the relationship Mr. Valenzuela had

with his children and was therefore directly relevant

to the jury’s determination of what dollar value to put

on Vincent and Ximena Valenzuela’s loss of love, companionship, comfort, care, assistance, protection, affection, society, moral support, training, and guidance.

The Court overruled Defendants’ hearsay objection to

the letter because the evidence was relevant to show

Mr. Valenzuela’s state of mind and his relationship

with and feelings toward the children. (Id. at 135.) The

Court also overruled Defendants’ Rule 403 objection

because there was no prejudice.

The contention that a comment in opening statement regarding childhood abuse, two questions about

police training on post-traumatic stress disorder, an

accurate statement in closing argument that the City

was a Defendant, and the use of a highly relevant

letter amounted to misconduct that sufficiently

App. 53

“permeated” this entire trial and unfairly prejudiced

Defendants so severely as to warrant throwing out a

jury verdict rendered after two phases and seven days

of trial is simply not credible. The jury was properly

instructed on what evidence it could consider in determining liability and damages, and none of the purported misconduct was the type that would appeal to

jurors’ passions and make them unable to follow Court

instructions. It is absolutely implausible that these issues led the jury to be “influenced by passion and prejudice in reaching its verdict.” See Jasper, 678 F.3d at

1129.

E. Excessive Damages Award

Defendants argue that a new trial is warranted

because the jury’s damages award was excessive. (New

Trial Mot. at 17–19.) “Doubts about the correctness of

the verdict are not sufficient grounds for a new trial:

the trial court must have a firm conviction that the

jury has made a mistake.” Landes Const. Co. v. Royal

Bank of Canada, 833 F.2d 1365, 1372 (9th Cir. 1987)

(citing Tennant v. Peoria & Pekin Union Ry., 321 U.S.

29, 35 (1944) (“Courts are not free to reweigh the evidence and set aside the jury verdict merely because the

jury could have drawn different inferences or conclusions or because judges feel that other results are more

reasonable.”)).

Defendants specifically take issue with Plaintiffs’

counsel’s statements in closing argument regarding

the value of a B-1 bomber, a Picasso painting, or

App. 54

LeBron James’ basketball contract. It is somewhat disingenuous for Defendants to complain about these

statements. Defendants’ counsel himself in closing argument explicitly asked the jury to tie the children’s

loss of love, companionship, comfort, care, protection,

affection, society, moral support, training, and guidance to something improper—the cost of going to college. He told the jury that Plaintiffs’ attorneys want

them “to award millions and millions of dollars to these

kids,” but he instead suggested that “we should take

care of their college.” (Day 7 at 35.) He then outlined

the cost of going to a California State University or a

University of California school. (Id.) There had been, of

course, no evidence presented during trial about the

cost of a college education. Indeed, there was not even

any evidence that Mr. Valenzuela would have paid for

the children’s college education had he lived.

Nevertheless, Defendants contend that Plaintiffs’

counsel improperly asked the jury to use the value of a

B-1 bomber, a Picasso pointing [sic], or Lebron James’

Lakers contract “as benchmarks.” (New Trial Mot. at

17.) Plaintiffs’ counsel did not. Rather, he used these

items in the context of his argument that all life has

value. (See Day 7 at 22 [“Next. Now, how do we value

things in society? Things like a B-1 bomber, almost a

billion dollars. You know, you look at a painting by Picasso, beautiful painting, $155 million. This is our life.

This is how we value things. Life is far more important.”].) This was not improper.

In any event, Defendants suffered no prejudice

from Plaintiffs’ counsel’s brief and isolated statements

App. 55

during closing argument. “[N]o citation is required for

the elementary proposition that attorneys are allowed

wide latitude in their closing arguments to juries.”

Kehr v. Smith Barney, Harris Upham & Co., 736 F.2d

1283, 1288 (9th Cir. 1984) (Ely, J., concurring). Bringing up the value of a B-1 bomber or a Picasso painting

did not have any tendency to so appeal to jurors’ passions that they would not have been able to follow the

Court’s instructions. Indeed, the jury’s verdict was nowhere near the values Mr. Mardirossian placed on the

plane or the painting.

The Court is not left with any conviction—much

less a firm one—that the jury made a mistake. See

Landes Const. Co., 833 F.2d at 1372. It is very difficult

to assign a dollar value to an individual’s life. It is very

difficult to quantify the pain and suffering involved in

being choked to death. It is very difficult to quantify

children’s loss of love, companionship, comfort, care,

assistance, protection, affection, society, moral support,

training, and guidance when they lose their father. In

the context of the jury’s attempt to put a dollar value

on the love and support of a father, Plaintiffs’ counsel’s

statements were hyperboles and, quite frankly, inconsequential.

F. Duplicative Damages Award

Defendants argue that a new trial is warranted

because the jury’s damages award was duplicative.

(New Trial Mot. at 19–20.) They contend that the

jury awarded a particular damages amount for each

App. 56

category of love, companionship, comfort, care, protection, affection, society, moral support, training, and

guidance, and the award is duplicative because those

categories overlap. (Id. [citing Day 7 at 23–24].) But

the jury did no such thing. In fact, the jury asked

questions about these categories that show the jury

purposely avoided awarding overlapping damages.

Specifically, the jury asked the Court for the legal definition of “society.” (Dkt. 364.) The Court responded

that “society” means “the love, companionship, comfort,

care, protection, affection, moral support, training and

guidance that a child receives from a father’s continued existence.” (Dkt. 365.) The jury then asked: “ ‘Society’ was one of the components of the list of 11 ‘areas’

on the verdict sheet. Your answer implies that ‘society’

is not a ‘stand alone’ area. Is this correct or is society

to be looked at on its own? Is ‘society’ a stand alone or

a summation of the entire list of 11?” (Dkt. 367.) The

Court responded, “It is a combination of all the other

words on the list.” (Dkt. 369.) The jury’s questions

show that the jury understood the potential overlap in

the categories in the jury instruction, and wanted to

ensure that it did not award overlapping damages.

G. Bifurcation

Defendants argue that a new trial is warranted

because the Court erred in refusing to bifurcate individual liability claims from supervisory and municipal

liability claims. (New Trial Mot. at 20–21.) The evidence presented at trial confirmed the Court’s reasoning that the individual, supervisory, and municipal

App. 57

liability issues were all inextricably linked and the evidence to prove them overlapped substantially. (See

Dkt. 325 at 7–8.) The evidence showed that the officers

attempted to apply the carotid hold because they were

trained to use it in non-deadly force situations to control and arrest a suspect. To bifurcate liability the way

Defendants suggested would have unfairly prejudiced

Plaintiffs, the Court, the jury, and the individual officers. And it would also have created undue delay,

wasted time, and resulted in the needless presentation

of duplicative evidence. Specifically, evidence relating

to supervisory and municipal liability was directly relevant to the individual officers’ liability, because the

jury had to decide whether the officers used excessive

force and acted with a purpose to harm Mr. Valenzuela,

as Plaintiffs alleged, or whether the neck restraint was

reasonably applied in conformity with their supervision by Sergeant Gonzalez, their training, and APD

policy, as Defendants contended.3

H. Damages for Loss of Life Under 42 U.S.C.

§ 1983

Finally, Defendants argue that the Court erred

in allowing the jury to award damages for Mr.

3

Defendants argue that the Court should have bifurcated

the liability issues to “protect the individual officer defendants

from the prejudice that might result if a jury heard evidence regarding the municipal defendant’s allegedly unconstitutional policies.” (New Trial Mot. at 21 [quoting Green v. Baca, 226 F.R.D.

624, 633 (C.D. Cal. 2005)].) But as explained, the evidence of

APD’s allegedly unconstitutional policies was central to the individual officers’ defense.

App. 58

Valenzuela’s loss of life. (New Trial Mot. at 21–22.) But

failing to award damages for Mr. Valenzuela’s loss of

life would undermine the vital constitutional right

against excessive force—perversely, it would incentivize officers to aim to kill a suspect, rather than just

harm him.

Because federal law is silent on the measure of

damages in § 1983 actions, state law governs unless it

is inconsistent with the policies of § 1983. See 42 U.S.C.

§ 1988; Robertson v. Wegmann, 436 U.S. 584, 589–90

(1978). California law does not allow a decedent’s estate to recover for the decedent’s loss of life. Cal. Civ.

Proc. Code § 377.34. Instead, state law limits recovery

to pre-death economic damages in an action brought

by a decedent’s successor-in-interest. Id.

A primary goal driving Congress’s enactment of

§ 1983 was to provide for killings unconstitutionally

caused or acquiesced in by state governments. See

Monroe v. Pape, 365 U.S. 167, 172–76 (1961), overruled

in part on other grounds by Monell v. Dep’t of Soc.

Servs. of the City of N.Y., 436 U.S. 690 (1978). There are

two policies underlying § 1983: (1) to compensate persons injured when officials deprive them of federal

rights, and (2) to prevent abuses of power by those acting under color of state law. Robertson, 436 U.S. at 590–

91. Whether California’s bar on loss of life damages applies in § 1983 actions depends on whether this limit

is inconsistent with § 1983’s twin goals of compensation and deterrence. See id. at 591–92.

App. 59

Neither the Supreme Court nor the Ninth Circuit

has addressed this issue directly. The Ninth Circuit

came closest to the question in Chaudhry v. City of Los

Angeles, where it considered whether California’s bar

on survival damages for pre-death pain and suffering

was inconsistent with § 1983. 751 F.3d 1096, 1103 (9th

Cir. 2014). It held that it was. By limiting damages in

survival actions to the victim’s pre-death economic

losses, “[t]he practical effect of [California Code of Civil

Procedure] § 377.34 is to reduce, and often to eliminate, compensatory damage awards for the survivors

of people killed by violations of federal law.” Id. at 1104.

In cases where the victim dies quickly, there will often

be no remedy at all. Id. And “[e]ven in cases of slow

death where pre-death economic damages might be

available, § 377.34’s limitation will often be tantamount to a prohibition, for the victims of excessive

police force are often low-paid or unemployed.” Id. Prohibiting recovery for pre-death pain and suffering

therefore creates a perverse effect: it is more economically advantageous for a defendant to kill rather than

injure his victim. Id. Consequently, the Ninth Circuit

held that California’s prohibition on pre-death pain

and suffering damages limits recovery too severely to

be consistent with § 1983’s deterrence policy. Id. at

1105.

Chaudhry cited with approval an out-of-circuit

decision, Bell v. City of Milwaukee, which held that a

Wisconsin statute barring damages for loss of life was

inconsistent with § 1983. 746 F.2d 1205, 1239 (7th Cir.

1984), overruled in part on other grounds by Russ v.

App. 60

Watts, 414 F.3d 783 (7th Cir. 2005). In Bell, a Milwaukee police officer shot and killed the decedent, planted

a knife on his body, and then lied about the circumstances of the killing. Id. at 1215–18. The decedent’s

siblings and estate sued under § 1983. In rejecting the

Wisconsin law precluding recovery of damages for loss

of life in survival actions, Bell concluded that “if Section 1983 did not allow recovery for loss of life notwithstanding inhospitable state law, deterrence would be

further subverted since it would be more advantageous

to the unlawful actor to kill rather than injure.” Id. at

1239.

Other courts have reached the same conclusion. A

majority of district courts considering the issue have

held that § 377.34’s bar on loss of life damages is inconsistent with the policies of § 1983. See, e.g., T.D.W.

v. Riverside Cty., 2009 WL 2252072, at *7 (C.D. Cal.

July 27, 2009) (finding excluding damages for loss of

enjoyment of life would be inconsistent with the purposes of § 1983); Guyton v. Phillips, 532 F. Supp. 1154,

1167–68 (N.D. Cal. 1981) (finding § 1983’s deterrent

purpose “is hardly served when the police officer who

acts without substantial justification suffers a harsher

penalty for injuring or maiming a victim than for killing him”); see also Thomas v. Cannon, 2017 WL

2954920, at *3 (W.D. Wash. July 10, 2017) (finding

Washington’s limit on damages for loss of life inconsistent with § 1983’s policies). And since Chaudhry, no

court has held otherwise. See Estate of Casillas v. City

of Fresno, 2019 WL 2869079, at *16 (E.D. Cal. July 3,

2019) (collecting cases).

App. 61

The Court agrees with the weight of authority

holding that California’s bar on loss of life damages is

inconsistent with the policies behind § 1983. Foreclosing recovery for loss of life creates a backwards incentive: officers should aim to kill, not injure. Even more,

they should kill quickly, lest the decedent’s estate recover damages for pre-death pain and suffering, now

available under Chaudhry. Incentivizing the use of

executioner-style force is clearly inconsistent with

§ 1983’s policy of deterrence. It also trivializes our

fundamental right against excessive force. The Constitution demands more from those the government entrusts to use deadly force. They must do so only when

necessary to protect themselves and others from serious physical injury.

Damages for loss of life also provide compensation

for individuals killed by a violation of their constitutional rights. Every life has value. This platitude rings

true even if someone is unemployed, homeless, a drug

addict, and broke. In the name of tort reform, California law subverts this principle by limiting damages in

survival actions to the victim’s pre-death economic

losses. Consider how this limit impacts § 1983 actions

where an officer unjustifiably uses deadly force. Victims of excessive force are often low paid or unemployed. They are more likely to be persons of color, and

thus statistically likely to be paid less on the dollar.

These lives have worth beyond economic loss. Barring

recovery for the innate value of a life, particularly

where a law enforcement officer has unlawfully killed

App. 62

someone, conflicts with § 1983’s policy of compensation.

It would be a great injustice to allow a perpetrator

of excessive force to get away with paying no damages

just because the victim is dead and penniless. Loss of

life damages are necessary to promote the important

policies underlying § 1983 and the fundamental American value that every life matters.

V.

PLAINTIFFS’ MOTION FOR ATTORNEY

FEES

“The general rule in our legal system is that each

party must pay its own attorney’s fees and expenses.”

Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 550

(2010). In an action brought under 42 U.S.C. § 1983,

however, “the court, in its discretion, may allow the

prevailing party . . . a reasonable attorney’s fee as part

of the costs.” 42 U.S.C. § 1988(b). Attorney fees are also

recoverable under the Bane Act. Cal. Civ. Code § 52.1(i)

(“In addition to any damages, injunction, or other equitable relief awarded . . . the court may award the . . .

plaintiff reasonable attorney’s fees.”). Under this authority, Plaintiffs seek an award of $1,333,355 in fees

and $51,639.07 in costs, in addition to the costs allowable under 28 U.S.C. § 1920. (Fee Mot. at 2.)

A. Prevailing Party

Plaintiffs may be considered prevailing parties if

they succeed on any significant issue in litigation that

App. 63

achieves some of the benefit sought in bringing the

lawsuit. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).

Plaintiffs Vincent and Ximena Valenzuela prevailed on

their claims when the jury found that the officers used

excessive force, that Sergeant Gonzalez was liable as a

supervisory defendant, and that the City was liable

based on an unlawful policy, practice, or custom, and

awarded a total of $13.2 million in damages. As the

prevailing party on the pivotal issue of whether the use

of the neck restraint was reasonable, they are entitled

to their reasonable attorney fees. Specifically, Vincent

and Ximena Valenzuela prevailed on the issues of unreasonable force, supervisory liability, municipal liability on an unlawful policy, practice, or custom theory,

battery, negligence, and liability under California’s

Bane Act.

Defendants argue that Mr. Valenzuela Sr. was not

a prevailing party because the jury found against

Plaintiffs on his only claim—violation of substantive

due process. This matters because Plaintiffs seek fees

for the work of Dale Galipo, who appeared in this case

for the first time on October 30, 2019, on behalf of Mr.

Valenzuela Sr. only. (See Dkt. 324 [Notice of Appearance of Counsel].) Then, on November 18, 2019—after

the jury found for Defendants on Mr. Valenzuela Sr.’s

claim but before the damages phase began—Mr. Galipo

was added as counsel of record for Vincent and Ximena

Valenzuela as well. (Dkt. 352.) Defendants argue that

all of Mr. Galipo’s work before November 18, 20194 is

4

Although Mr. Galipo worked on this case “from its inception,” Plaintiffs seek reimbursement only for time incurred

App. 64

not compensable as “time incurred while representing

a non-prevailing party.” (Dkt. 404 [Defendants’ Opposition to Fee Motion, hereinafter “Fee Opp.”] at 5–6;

Dkt. 404-1 [Defendants’ objections to Mr. Galipo’s

time].)

The Court is not persuaded. The work Mr. Galipo

performed on behalf of Mr. Valenzuela Sr. is not separable from Vincent and Ximena Valenzuela’s case. Mr.

Galipo questioned every witness in the liability phase.

He performed the closing argument for all Plaintiffs.

The work he performed preparing for trial clearly

served all Plaintiffs, not just Mr. Valenzuela Sr. There

was no evidence or argument at trial that went only to

Mr. Valenzuela Sr.’s substantive due process claim—

indeed, any evidence relevant to that claim was also

relevant to Vincent and Ximena Valenzuela’s substantive due process claim. Accordingly, the evidence Mr.

Galipo reviewed, the arguments he developed, the

strategy he contributed, and the other work Mr. Galipo

performed was all relevant to Vincent and Ximena

Valenzuela’s claims and was related to their ultimate

success. Cf Hensley, 461 U.S. at 435 (analyzing treatment of fees on unsuccessful claims, and explaining

that the correct analysis hinges on whether the plaintiff ’s work on the other claims was related to the plaintiff ’s ultimate success). Simply put, Mr. Galipo’s stellar

advocacy was key to Vincent and Ximena’s success.

beginning August 24, 2019. (Dkt. 385-5 [Declaration of Garo

Mardirossian] ¶ 14.)

App. 65

B. Reasonableness of the Fee

The customary method of determining fees is

known as the lodestar method. Morales v. City of San

Rafael, 96 F.3d 359, 364 (9th Cir. 1996). The lodestar

amount is the “number of hours reasonably expended

on the litigation multiplied by a reasonable hourly

rate.” Hensley, 461 U.S. at 433. There is a strong presumption that the lodestar figure represents a reasonable fee. Morales, 96 F.3d at 363 n.8; see also Harris v.

Marhoerfer, 24 F.3d 16, 18 (9th Cir. 1994) (“Only in rare

instances should the lodestar figure be adjusted on the

basis of other considerations.”). The lodestar approach

captures the factors that courts have traditionally considered in assessing the reasonableness of a fee award:

“(1) the time and labor required, (2) the novelty and

difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to

the acceptance of the case, (5) the customary fee,

(6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances,

(8) the amount involved and the results obtained,

(9) the experience, reputation, and ability of the attorneys, (10) the ‘undesirability’ of the case; (11) the nature and length of the professional relationship with

the client, and (12) awards in similar cases.” Morales,

96 F.3d at 364 & n.9 (citing Kerr v. Screen Guild Extras,

Inc., 526 F.2d 67, 70 (9th Cir. 1975), cert. denied, 425

U.S. 951 (1976)).

App. 66

1. Hourly Rates

The Court first determines Plaintiffs’ attorneys’

reasonable hourly rates. “The hourly rate for successful civil rights attorneys is to be calculated by considering certain factors, including the novelty and

difficulty of the issues, the skill required to try the case,

whether or not the fee is contingent, the experience

held by counsel, and fee awards in similar cases.”

Moreno v. City of Sacramento, 534 F.3d 1106, 114 (9th

Cir. 2008). Courts also are guided by “the rate prevailing in the community for similar work performed by

attorneys of comparable skill, experience, and reputation.” Trevino v. Gates, 99 F.3d 911, 925 (9th Cir. 1996);

see also Dang v. Cross, 422 F.3d 800, 813 (9th Cir. 2005).

“The fee applicant has the burden of producing satisfactory evidence, in addition to the affidavits of its

counsel, that the requested rates are in line with those

prevailing in the community for similar services of

lawyers of reasonably comparable skill and reputation.” Jordan v. Multnomah Cty., 815 F.2d 1258, 1263

(9th Cir. 1987). Once the party claiming fees presents

evidence supporting the claimed rate, the burden

shifts to the party opposing fees to present countervailing evidence that persuasively rebuts the fee seeker’s

proof of a reasonable hourly rate. See Gates v.

Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992).

a. Dale Galipo

Dale Galipo, the lead trial lawyer in this case, requests an hourly rate of $1,000. (Fee Mot. at 8.) When

App. 67

it comes to police excessive force cases in Los Angeles,

Mr. Galipo is without question at the top of his field. In

a recent case similar to this one, this Court found that

an hourly rate of $1,000 for Mr. Galipo is reasonable

and consistent with the prevailing rate in the Central

District for attorneys of comparable skill, experience,

and reputation. (See Craig et.al. v. County of Orange

et.al., Case No. SACV 17-00491-CJC (KESx), Dkt. 245.)

The Court again finds that $1,000 is a reasonable

hourly rate for Mr. Galipo.

b. Garo Mardirossian

Garo Mardirossian seeks an hourly rate of $900.

Mr. Mardirossian graduated from Whittier College

School of Law and was admitted to the California Bar

in 1981. He has managed his own law firm ever since,

and has litigated numerous police excessive force

cases. (Dkt. 385-5 [Declaration of Garo Mardirossian]

¶¶ 6–8.) In 2006, he was selected as one of the “Best

Lawyers in America” by ABOTA, and in 2012, he was

recognized by the Daily Journal as one of the top 100

California lawyers. (Id. ¶ 12.)

Defendants submit that a more reasonable hourly

rate for Mr. Mardirossian is $650. (Fee Opp. at 11.)

They rely principally on R.S., et al v. City of Long

Beach, et al., Case No. SACV11-536-AG, Dkt. 221

(C.D. Cal. Jan. 31, 2014), another case where Mr.

Mardirossian conducted a trial with Mr. Galipo, where

another court in this district determined that a

App. 68

reasonable hourly rate for Mr. Mardirossian was $550.

(See id.)

The Court agrees that $650 is a reasonable hourly

rate for Mr. Mardirossian, and is more in line with the

prevailing rate for attorneys with his experience performing the services he performed here. See Novel v.

L.A. Cty. Sheriff ’s Dep’t, 2019 WL 6448955, at *3 (C.D.

Cal. Aug. 20, 2019) (finding that $690 per hour was a

reasonable hourly rate for a partner working under another partner in a Los Angeles § 1983 trial); Smith v.

Cty. of Riverside, 2019 WL 4187381, at *6 (C.D. Cal.

June 17, 2019) (relying in § 1983 case on evidence that

the median rate for partners with more than 21 years

of experience across all-sized law firms and all practice

areas in Los Angeles was $688).

Plaintiffs have not met their burden of showing

that $900 is in line with the prevailing rates in the

community for lawyers who perform the type of services Mr. Mardirossian performed in this case. In asserting that a $900 rate is reasonable, Plaintiffs argue

that “[f ]or many decades [Mr. Mardirossian] has been

one of the top attorneys in California and it is impossible to find an attorney with his resume whose reasonable rate is $650/hour.” (Dkt. 422 [Plaintiffs’ Reply in

Support of Fee Motion, hereinafter “Fee Reply”] at 3.)

But Plaintiffs miss the point. It is not enough to say

that other attorneys with 38 years of experience have

hourly rates around $900. (Fee Mot. at 9 [citing McKibben v. McMahon, 2019 WL 1109683, at *14 (C.D. Cal.

Feb. 28, 2019), where the court relied on a compilation

of fee awards in civil rights cases stating that civil

App. 69

rights litigation attorneys with 26–49 years of experience bill $887-$1230 per hour].)5 Mr. Mardirossian was

not the lead lawyer in this case. He conducted no witness examination during the liability phase of trial,

and played only a minor role in the damages phase.

The services he performed simply did not require the

skill and experience of an attorney with 38 years of

experience. (See Dkt. 385-6 [Mr. Mardirossian’s timesheets].) Mr. Galipo’s representation and stellar advocacy were what led to the multi-million dollar verdict,

not those of Mr. Mardirossian.

c. Lawrence Marks

Lawrence Marks seeks an hourly rate of $750.

Mr. Marks graduated from University of the Pacific,

McGeorge School of Law and was admitted to the

California Bar in 1991. (Dkt. 385-7 [Declaration of

Lawrence D. Marks] ¶ 3.) He spent about ten years defending attorneys and doctors for malpractice, and has

spent about 18 years representing plaintiffs in personal injury matters, including civil rights matters.

(Id. ¶¶ 4–5.) He has tried or second-chaired more than

20 jury trials, taken thousands of depositions, and participated in several civil rights police excessive force

cases. (Id. ¶¶ 6–8.) Defendants argue that a more

5

Nor is Mr. Galipo’s declaration supporting Mr.

Mardirossian’s request for $900 per hour enough to tip the balance. (See Fee Mot. at 10; Dkt. 385-1 ¶ 22 [“I believe that given

his accomplishments, the length of time he has been an attorney

and his significant contributions and excellent work on this case,

Mr. Mardirossian should be awarded $900 per hour.”].)

App. 70

reasonable hourly rate is $400 per hour, again citing

R.S., Case No. SACV11-536-AG, Dkt. 221, and the fact

that the only support for this rate are the attorneys’

own declarations. (Fee Opp. at 8.)

The Court finds that $550 is a reasonable hourly

rate for Mr. Marks. Mr. Marks did not present any evidence at trial. The work he performed was akin to an

associate behind the scenes, including obtaining evidence and drafting briefing and discovery. (Dkt. 385-8

[Mr. Marks’ timesheets]). Plaintiffs have not met their

burden to show that a $750 hourly rate is in line with

the prevailing community rates for lawyers with Mr.

Marks’ experience who perform the types of services

Mr. Marks performed in this case (which did not require the skill of an attorney with 28 years’ experience). A $550 rate accounts for the role Mr. Marks

played supporting Mr. Galipo and Mr. Mardirossian,

and what appears to be the prevailing rate for similar

associate work in Los Angeles § 1983 cases. See, e.g.,

Novel, 2019 WL 6448955, at *3 (finding that $550 per

hour was a reasonable hourly rate for an associate

working under two partners in a Los Angeles § 1983

trial); Smith, 2019 WL 4187381, at *6 (relying in

§ 1983 case on evidence that the median rate for associates with more than 7 years of experience across allsized law firms and all practice areas in Los Angeles

was $524); Mkay Inc. v. City of Huntington Park, 2019

WL 1751823, at *3 (C.D. Cal. Mar. 7, 2019) (noting that

associates from the Greenberg Gross and D.R. Welch

firms billed at rates between $325 and $395 per hour).

App. 71

d. John Fattahi

To oppose Defendants’ post-trial motions, Plaintiffs added new counsel, John Fattahi. (See Dkt. 403

[January 31, 2020 Notice of Association of Counsel];

Fee Reply at 17.) Plaintiffs seek an hourly rate of $725

per hour for Mr. Fattahi’s work.

Mr. Fattahi graduated from UCLA School of Law

and was admitted to the California Bar in 2006. (Dkt.

422-7 [Declaration of John Fattahi] ¶ 6.) He served

for one year as a law clerk to Chief U.S. District Judge

Virginia A. Phillips in the Central District of California, and was then a litigation associate for two years

at Quinn Emanuel Urquhart & Sullivan, LLP. (Id.) He

then worked for about two and a half years in Mr.

Galipo’s office, and opened his own solo practice in

July 2011. (Id. ¶ 7.) Mr. Fattahi has been selected as a

Rising Star of Southern California by Super Lawyers

magazine each year between 2015 and 2019. (Id.) Mr.

Fattahi represents that a court has awarded him a

$550 hourly rate for second-chairing a police excessive

force trial, and that he has also obtained fee settlements resulting in $540 and $550 hourly rates. (Id.

¶ 5.)

Defendants respond that $550 is a more appropriate rate for Mr. Fattahi. (Dkt. 423 at 1.) They cite cases

where courts determined that a reasonable hourly rate

for Mr. Fattahi was $400, $350 (2 cases), $320 (2 cases),

and $280 per hour. (Id. at 2–4.) “[A]n attorney’s prior

fee award may bear on the selection of a reasonable fee

in a later case, particularly when the award was for

App. 72

work performed in the relevant community.” Schwarz

v. Sec’y of Health & Human Servs., 73 F.3d 895, 908

(9th Cir. 1995). However, it is not alone sufficient to

support the rate’s reasonableness.

The Court finds that Plaintiffs have not carried

their burden to show that $725 per hour is the prevailing rate in the community for similar services of lawyers of reasonably comparable skill and reputation.

The more novel and difficult legal issues and the impressiveness of the results obtained by the Plaintiffs

happened before and during trial, not after trial when

Mr. Fattahi participated. Moreover, the prevailing rate

in the community for attorneys of similar experience

does not appear to be as high as Mr. Fattahi seeks. See

McKibben, 2019 WL 1109683, at *14 (collecting awards

between $485 and $665 for attorneys with 13 to 14

years of experience); Mkay Inc., 2019 WL 1751823, at

*4 (concluding that $525 was a reasonable hourly rate

for a 2006 UCLA Law graduate in Los Angeles § 1983

case). Considering these factors, the skill required to

file the oppositions Mr. Fattahi filed, and awards other

courts have found reasonable for Mr. Fattahi, the Court

determines that $500 is a reasonable hourly rate for

Mr. Fattahi.

2. Billed Hours

The Court now determines whether the billed

hours are reasonable. A court may award fees only for

the number of hours it concludes were reasonably expended on the litigation. See Hensley, 461 U.S. at 434.

App. 73

“[T]he fee applicant bears the burden of documenting

the appropriate hours expended in the litigation and

must submit evidence in support of th[e] hours

worked.” Deukmejian, 987 F.2d at 1397–98.

In support of Plaintiffs’ fee motion, each attorney

submitted time records detailing the work they performed. Defendants argue various categories of hours

should be excluded. One category of hours Plaintiffs’

counsel spent that Defendants argue is not reasonable

are what Defendants call “duplicative” hours. For example, Defendants object that it is duplicative to

award fees for multiple attorneys to prepare witnesses

for depositions and attend depositions. (Dkt. 404-2 at 6

[objecting that Mr. Mardirossian and Mr. Marks both

billed to prepare for and attend depositions of Dr.

Omalu and Mr. DeFoe]; Dkt. 404-3 at 16 [objecting to

recovery of Mr. Marks’ time spent preparing an outline

for Dr. Singhania’s direct examination where Mr.

Galipo did the examination].) However, it is not uncommon for multiple attorneys to participate in depositions or for one attorney to prepare materials for

another attorney’s preparation, and the Court does not

see how the number of hours billed for these tasks was

unreasonable.

Defendants further object to many of Mr. Marks’

time entries as “duplicate work” because the entries

have the same text as prior days’ entries. (See, e.g., Dkt.

404-3 at 16 [objecting to entry for “Prepare Index Of

Portions Of Deposition Of Witness/Defendant Sgt.

Daniel Gonzalez Plaintiffs Intend To Offer At Trial, Per

Local Rule 16-2.7” because it reflects “[d]uplicate work,

App. 74

same as task performed on 10/20/19”].) However, it is

not unusual for an attorney to spread one task across

multiple days, and the Court has no evidence that

these billing entries represent the same work.

Defendants also object to certain entries reflecting

what they argue is excessive time. (See, e.g., Dkt. 4043 at 3, 6 [objecting to “[e]xcessive amount of time for

legal research”]; id. at 5 [objecting that time spent reviewing certain document and photos was excessive].)

As to most of these objections, the Court disagrees that

the amount billed appears excessive. However, Defendants request very limited reductions for Plaintiffs’ refiling of various motions in limine, arguing that the

time Plaintiffs spent reviewing, updating, and re-filing

those nearly identical motions is excessive. (Dkt. 4043 at 12.) The Court will make those few requested reductions, which result in a total of 7.5 hours’ reduction

from Mr. Marks’ time.

Next, Defendants object to hours Mr. Mardirossian

billed for conversations with the children’s mother on

issues regarding their behavior at school because

these are not “litigation-related activity.” (Dkt. 404-2

at 2 [0.8 hours on July 11, 2016 for “[t]elephone conversation with Ms. Gonzalez re: Vincent Valenzuela having fainted at school”]; id. at 5 [0.3 hours on January 9,

2019 for conversation “re: Ximena’s behavior at school,

and need to bring stuffed animal to class with her”].)

The Court disagrees that this time was not related

to the litigation. In the damages phase, the jury had

to decide whether Vincent and Ximena Valenzuela

lost love, companionship, comfort, care, protection,

App. 75

affection, society, moral support, training, and guidance, and if they did, how much money that loss was

worth. The information Mr. Mardirossian obtained in

those conversations was directly relevant to those

damages issues, and some was presented at trial. (See,

e.g., Day 6 PM at 62–63 [Ximena’s first grade teacher

testifying about how Ximena brought a stuffed animal

to school and hugged it when she felt sad about her

dad].) Accordingly, the Court does not exclude these

hours from Plaintiffs’ attorney fee recovery.

Defendants further argue that one task Mr. Marks

performed at the very beginning of the case is “paralegal work” and thus the time spent (2.4 hours) should

be reduced by half. Though the Court agrees in principle that nonattorney work should not be reimbursed at

attorney rates, the Court finds that Plaintiffs’ counsel

did not improperly bill for nonattorney work here.

Defendants also object that the 99.3 hours Mr.

Fattahi billed was excessive for preparing two oppositions to post-trial motions. (See Dkt. 423.) For example,

Defendants contend that “given Mr. Fattahi’s representation of his considerable skill and experience in

civil rights litigation, particularly police use of force

cases,” the over 50 hours he spent on legal research on

excessive force, qualified immunity, and similar issues

is excessive. (Id.) The Court agrees that the amount of

time spent by a lawyer who did not participate in the

case previously does not appear reasonable. Under the

circumstances, the Court finds that 70 hours were

reasonably expended on Plaintiffs’ responses to Defendants’ post-trial motions.

App. 76

The parties agree that 4 hours of time should be

deducted from both Mr. Mardirossian and Mr. Marks’

time because they billed for an “MSC with Judge

Otero” on May 29, 2019, when the settlement conference occurred on May 30, 2019, and they also billed

time on that date. (Dkt. 404-2 at 7; Dkt. 404-3 at 11;

Fee Reply at 9.) Accordingly, the Court will exclude

these hours.

For the reasons discussed, the Court reduces the

hours billed by Mr. Mardirossian by 4 hours, the hours

billed by Mr. Marks by 11.5 hours, and the hours billed

by Mr. Fattahi by 29.3 hours.

3. Lodestar Calculation

Based on the above analysis, the lodestar amounts

for Plaintiffs’ counsel are as follows:

Hourly

Attorney

Rate

Dale Galipo

$1,000

Garo Mardirossian $650

Lawrence Marks

$550

John Fattahi

$500

Total

6

Hours

284.1

404.76

910.57

70

1,669.3

Lodestar

$284,100

$263,055

$500,775

$35,000

$1,082,930

This number is calculated by subtracting 4 from the 404.7

hours requested for Mr. Mardirossian’s time, as reflected in the

table on page 17 of Plaintiff ’s Fee Reply.

7

This number is calculated by subtracting 11.5 from the 922

hours requested for Mr. Marks’ time, as reflected in the table on

page 17 of Plaintiff’s Fee Reply. The Court notes that Defendants

calculate the total number of hours Mr. Marks billed to be higher

than the number of hours Plaintiffs request. (Dkt. 404-3 at 18.)

The Court relies on Plaintiffs’ lower calculation.

App. 77

C. Costs

Section 1988 also allows for recovery of reasonable

out-of-pocket expenses that “would normally be

charged to a fee paying client.” Woods v. Carey, 722

F.3d 1177, 1180 n.1 (9th Cir. 2013). Plaintiffs seek

$51,639.07 in such costs for photocopying, travel, and

various costs associated with depositions and trial.

(Fee Mot. at 16–18.) Defendants argue the Court

should not award such costs because “[t]his is not a

situation where neither the attorneys who incurred

the costs, nor the plaintiff cannot afford to pay.” (Fee

Opp. at 13–14.) Defendants present no argument or

evidence that these expenses would not normally be

charged to a fee-paying client, and the Court concludes

that awarding these costs is appropriate here. See

Woods, 722 F.3d at 1180 n.1.

VI. CONCLUSION

For the foregoing reasons, Defendants’ motions for

judgment as a matter of law and for a new trial are

DENIED. Plaintiffs’ motion for attorney fees is

GRANTED IN SUBSTANTIAL PART. Based on the

Court’s lodestar calculation, Plaintiffs are awarded

$1,082,930 in attorney fees, and $51,639.07 in out-ofpocket costs.

App. 78

DATED:

March 11, 2020

/s/ Cormac J. Carney

CORMAC J. CARNEY

UNITED STATES

DISTRICT JUDGE

App. 79

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

SOUTHERN DIVISION

FERMIN VINCENT

VALENZUELA,

) Case No.: SACV

) 17-00278-CJC (DFMx)

) consolidated with

Plaintiff,

) SACV 17-02094-CJC

v.

) (DFMx)

) JUDGMENT ON

CITY OF ANAHEIM,

) JURY VERDICT

et al.,

)

Defendants.

(Filed Dec. 4, 2019)

)

)

)

VINCENT VALENZUELA

)

and XIMENA VALEN)

ZUELA by and through )

their guardian

)

PATRICIA GONZALEZ, )

Plaintiffs,

)

)

v.

)

CITY OF ANAHEIM,

)

et al.,

)

)

Defendants.

)

This action came on regularly for trial on November 12, 2019 in Courtroom 7C of the United States

District Court, Central District of California before

the Court and a jury, the Honorable Judge Cormac J.

Carney presiding.

App. 80

A jury of eight persons was regularly empaneled

and sworn. Witnesses were sworn and testified. After

hearing the evidence and arguments of counsel, the

jury was duly instructed by the Court and the case

was submitted to the jury. The jury deliberated and

thereafter returned a verdict on Phase I on November

18, 2019, and on Phase II on November 20, 2019 as follows:

PHASE I VERDICT

Question 1: Did Officer Woojin Jun or Officer Daniel

Wolfe use excessive or unreasonable force against

Fermin Vincent Valenzuela Junior in violation of his

constitutional rights under the Fourth Amendment?

Officer Woojin Jun

X

Yes.

No.

Officer Daniel Wolfe

X

Yes.

No.

Question 2: Is Sergeant Daniel Gonzalez liable as

a supervisory defendant for the unlawful actions of

Officer Woojin Jun or Officer Daniel Wolfe?

X

Yes.

No.

Question 3: Is the City of Anaheim liable for the actions of any of its defendant police officers based on

an unlawful official policy, practice, or custom of the

Anaheim Police Department?

X

Yes.

No.

App. 81

Question 4: Is the City of Anaheim liable for the actions of any of its defendant police officers based on the

Anaheim Police Department’s failure to train?

Yes.

X No.

Question 5: Did any of the defendant police officers

act with a purpose to harm unrelated to legitimate law

enforcement objectives in violation of Plaintiffs’ substantive due process rights to familial relations under

the Fourteenth Amendment?

Officer Woojin Jun

Yes.

X No.

Officer Daniel Wolfe

Yes.

X No.

Sergeant Daniel Gonzalez

Yes.

X No.

Question 6: Did any officer use unreasonable force

and commit battery under state law?

Officer Woojin Jun

X

Yes.

No.

Officer Daniel Wolfe

X

Yes.

No.

Sergeant Daniel Gonzalez

X

Yes.

No.

Question 7: Was any officer’s unreasonable force

and battery a substantial factor in causing Fermin

Vincent Valenzuela Junior’s death?

Officer Woojin Jun

X

Yes.

No.

Officer Daniel Wolfe

X

Yes.

No.

Sergeant Daniel Gonzalez

X

Yes.

No.

App. 82

Question 8:

law?

Was any officer negligent under state

Officer Woojin Jun

X

Yes.

No.

Officer Daniel Wolfe

X

Yes.

No.

Sergeant Daniel Gonzalez

X

Yes.

No.

Question 9: Was any officer’s negligence a substantial factor in causing Fermin Vincent Valenzuela Junior’s

death?

Officer Woojin Jun

X

Yes.

No.

Officer Daniel Wolfe

X

Yes.

No.

Sergeant Daniel Gonzalez

X

Yes.

No.

Question 10: Was Fermin Vincent Valenzuela Junior

also negligent during the incident in question?

X

Yes.

No.

Question 11: Was Fermin Vincent Valenzuela Junior’s

negligence a substantial factor in causing his death?

X

Yes.

No.

Question 12: What percentage of fault do you assign

for the negligence?

Officer Woojin Jun, Officer Daniel Wolfe, __85___%

and/or Sergeant Daniel Gonzalez

Fermin Vincent Valenzuela Junior

__15___%

App. 83

Question 13: Did any of the defendant police officers

violate Fermin Vincent Valenzuela Junior’s rights under California Civil Code § 52.1?

Officer Woojin Jun

X

Yes.

No.

Officer Daniel Wolfe

X

Yes.

No.

Sergeant Daniel Gonzalez

X

Yes.

No.

PHASE II VERDICT

Question 1: What are Fermin Vincent Valenzuela

Junior’s survival damages for his loss of life and for his

pre-death pain and suffering?

Loss of Life:

$

Pre-death pain and suffering $

3.6 Million

6 Million

Question 2: What are Vincent Valenzuela’s damages

for the past and future loss of Fermin Vincent Valenzuela Junior’s love, companionship, comfort, care, assistance, protection, affection, society, moral support,

training, and guidance?

$

1.8 Million

Question 3: What are Ximena Valenzuela’s damages

for the past and future loss of Fermin Vincent Valenzuela Junior’s love, companionship, comfort, care, assistance, protection, affection, society, moral support,

training, and guidance?

$

1.8 Million

App. 84

BASED UPON THE FOREGOING, IT IS ORDERED

AND ADJUDGED THAT:

1.

2.

Plaintiffs Vincent Valenzuela and Ximena Valenzuela shall recover from Defendants City of Anaheim, Officer Woojin Jun, Officer Daniel Wolfe and

Sergeant Daniel Gonzalez, jointly and severally,

the total sum of $13,200,000, costs in this action,

and statutory attorney fees to be determined by

the Court. This amount is broken down as follows:

a.

Plaintiffs Vincent Valenzuela and Ximena

Valenzuela, as successors in interest to Fermin Vincent Valenzuela Junior, shall recover

from Defendants City of Anaheim, Officer

Woojin Jun, Officer Daniel Wolfe and Sergeant Daniel Gonzalez, jointly and severally,

the total sum of $9,600,000, and costs in this

action, to be determined by the Court.

b.

Plaintiff Vincent Valenzuela shall also recover

from Defendants City of Anaheim, Officer

Woojin Jun, Officer Daniel Wolfe and Sergeant Daniel Gonzalez, jointly and severally,

the sum of $1,800,000, and costs in this action,

to be determined by the Court.

c.

Plaintiff Ximena Valenzuela shall also recover

from Defendants City of Anaheim, Officer

Woojin Jun, Officer Daniel Wolfe and Sergeant Daniel Gonzalez, jointly and severally,

the sum of $1,800,000, and costs in this action,

to be determined by the Court.

In addition to the foregoing, and as the prevailing

parties on their Fourth Amendment Claim, their

Monell Claim and their Bane Act Claim, Plaintiffs

App. 85

are entitled to recover statutory attorney fees and

applicable costs, to be determined by the Court.

3.

Plaintiffs Vincent Valenzuela and Ximena Valenzuela shall recover post-judgment interest on all

of the above sums at the rate of 1.60% from the

date of this Judgment, or $578.63 per day, for the

first year, and compounded annually thereafter,

pursuant to 28 U.S.C. § 1961.

DATED:

December 4, 2019

/s/ Cormac J. Carney

CORMAC J. CARNEY

UNITED STATES

DISTRICT JUDGE

App. 86

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FERMIN VINCENT VALENZUELA;

V.V., by and through their Guardian,

Patricia Gonzalez, individually

and as successors-in-interest of

Fermin Vincent Valenzuela, II,

deceased; X.V., by and through

their Guardian, Patricia Gonzalez,

individually and as successors-ininterest of Fermin Vincent

Valenzuela, II, deceased,

No. 20-55372

D.C. Nos.

8:17-cv-00278CJC-DFM

8:17-cv-02094CJC-DFM

ORDER

Plaintiffs-Appellees,

V.

CITY OF ANAHEIM; DANIEL WOLFE;

WOOJIN JUN; DANIEL GONZALEZ,

Defendants-Appellants.

Filed March 30, 2022

Before: John B. Owens and Kenneth K. Lee, Circuit

Judges, and Michael H. Simon,* District Judge.

Order;

Statement by Judge Bea;

Dissent by Judge Collins

* The Honorable Michael H. Simon, United States District

Judge for the District of Oregon, sitting by designation.

App. 87

COUNSEL

Timothy T. Coates and Peter A. Goldschmidt, Greines

Martin Stein & Richland LLP, Los Angeles, California;

Steven J. Rothans and Jill Williams, Carpenter

Rothans & Dumont LLP, Los Angeles, California;

Robert Fabela, City Attorney; Moses W. Johnson, Assistant City Attorney; City Attorney’s Office, Anaheim,

California; for Defendants-Appellants.

Dale K. Galipo and Hang D. Le, Law Offices of Dale K.

Galipo, Woodland Hills, California; John Fattahi, Law

Office of John Fattahi, Torrance, California; Garo

Mardirossian and Lawrence D. Marks, Mardirossian &

Associates Inc., Los Angeles, California; for PlaintiffsAppellees.

Christopher D. Hu, Horvitz & Levy LLP, San Francisco, California; Steven S. Fleischman and Scott P.

Dixler, Horvitz & Levy LLP, Burbank, California; for

Amicus Curiae Association of Southern California Defense Counsel. Steven J. Renick, Manning Kass Ellrod

Ramirez Trester LLP, Los Angeles, California, for Amicus Curiae International Municipal Lawyers Association.

ORDER

Judges Owens and Simon have voted to deny the

petition for panel rehearing. Judge Owens has voted to

deny the petition for rehearing en banc, and Judge

Simon so recommends. Judge Lee has voted to grant

the petition for panel rehearing and rehearing en banc.

App. 88

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether

to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active

judges in favor of en banc consideration. Fed. R. App. P.

35.

The petition for panel rehearing and the petition

for rehearing en banc are DENIED.

Judge Bea’s statement respecting the denial of rehearing en banc and Judge Collins’ dissent from the

denial of rehearing en banc are filed concurrently herewith.

Judge Watford did not participate in the deliberations or vote in this case.

BEA, Circuit Judge, with whom Judges CALLAHAN,

IKUTA, BENNETT, R. NELSON, BADE, LEE, BRESS,

BUMATAY, and VANDYKE join, and with whom Judge

COLLINS joins as to Parts I and II(A), respecting the

denial of rehearing en banc:

In Valenzuela, a divided panel of our court held

that California’s prohibition on post-death “hedonic”

damages awards,1 which purportedly compensate the

deceased for the pleasure he would have taken from

1

The word “hedonic” comes from the Greek word for “pleasure.” Victor E. Schwartz & Cary Silverman, Hedonic Damages:

The Rapidly Bubbling Cauldron, 69 Brook. L. Rev. 1037, 1041

(2004).

App. 89

his life had he lived, is inconsistent with the compensation and deterrence goals of 42 U.S.C. § 1983. The

court so held despite the $6 million awarded to Valenzuela’s estate for his pre-death pain and suffering and

the $3.6 million awarded to his family for wrongful

death. Indeed, the “hedonic” damages were precisely a

repetition of the wrongful death award: another $3.6

million.

The panel’s holding is foreclosed by the Supreme

Court precedent of Robertson v. Wegmann, 436 U.S. 584

(1978) (holding that a state law that totally eliminated

a § 1983 claim did not violate the compensation and

deterrence goals of § 1983), deepens a circuit split that

already exists between the Sixth and Seventh Circuits,

compare Frontier Ins. Co. v. Blaty, 454 F.3d 590, 601–

03 (6th Cir. 2006) (relying on Robertson to hold that

prohibitions on post-death “hedonic” damages awards

are not inconsistent with § 1983 because § 1983 compensates for “actual damages suffered by the victim”

and a loss of life is not “actual . . . because it is not consciously experienced by the decedent”), with Bell v. City

of Milwaukee, 746 F.2d 1205, 1239 (7th Cir. 1984)

(holding that a post-death hedonic damages ban was

inconsistent with § 1983 because the ban created perverse incentives for police officers to kill rather than

injure), relies on an incorrect application of 42 U.S.C.

§ 1988, which governs damages in § 1983 cases, and

conflicts with the tort law schemes of the 44 other

states which ban post-death “hedonic” damages. For

these reasons, Valenzuela should have been given en

banc review.

App. 90

I.

BACKGROUND

A. Post-Death Damages at the Common Law:

There Were and Are None.

Over 200 years ago, Lord Ellenborough declared

that “[i]n a civil Court, the death of a human being

could not be complained of as an injury.” Baker v. Bolton, 1 Camp. 493, 170 Eng. Rep. 1033 (1808). Indeed,

“[n]othing is better settled than, at common law, the

right of action for an injury to the person is extinguished by the death of the party injured.” Mich. Cent.

R. Co. v. Vreeland, 227 U.S. 59, 67 (1913). Said another

way: actio personalis moritur cum persona—a personal

right of action dies with the person. Henshaw v. Miller,

58 U.S. 212, 213 (1854). The common law simply does

not provide a cause of action, either for the victim’s estate or the victim’s family, against a tortfeasor if the

victim dies before a judgment is obtained. It goes without saying that the common law, by failing to provide a

cause of action, also fails to compensate the victim’s estate and the victim’s family for the value of the life the

victim would have lived had he survived.

B. California’s Statutory Scheme

Given the “manifestly unjust,” id., consequences of

a rule which allowed a tortfeasor to escape all liability

if his wrongful deed resulted in the victim’s death before judgment, this common law doctrine has been abrogated by “wrongful death” statutes. England started

the trend back in 1846 with Lord Campbell’s Act, and

every state in the union has followed suit. Restatement

App. 91

(Second) of Torts, § 925 cmt. a. (“In the United States

also, the omission of the common law has been corrected in every state by statutes colloquially known as

‘wrongful death acts.’ Most of these are modeled more

or less closely on the English Act.”). It was not the evolution of the common law but statutory law which gave

rise to this cause of action. The common law did not

change.

California, like most states, authorizes two types

of civil actions for cases where a victim dies at the

hands of his tortfeasor.

First, the executor of the decedent’s estate may

bring a survival action. Under the state’s survival statute, the victim’s estate is entitled to recover for the

“loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would

have been able to recover had the decedent lived, and

do not include damages for pain, suffering, or disfigurement.” Cal. Civ. P. Code § 377.34(a) (emphasis added).

These damages can include compensation for lost

wages, medical expenses, funeral expenses, or other

economic losses.

It is true that California’s survival statute limits

recovery to economic damages suffered by the victim

before death. But while most states allow for pre-death

pain and suffering damages, this limitation to predeath damages is typical. Restatement (Second) of

Torts § 925, cmt. a. (“If the defendant’s act has caused

the death, in most states the survival and revival

App. 92

statutes are interpreted as giving the representative of

the estate no more than the damages accruing before

death.”).

California’s wrongful death statute further authorizes the decedent’s family, separate from his estate, to recover “all just damages” incurred by the loss

of their loved one. Cal. Civ. P. Code § 377.61. The victim’s spouse may bring an action for loss of consortium,

which compensates the spouse for “not only the loss of

companionship and affection through the time of trial

but also for any future loss of companionship and affection that is sufficiently certain to occur.” Boeken v.

Philip Morris USA, Inc., 48 Cal. 4th 788, 799 (Cal.

2010) (emphasis in original). The availability of these

damages can result in substantial recovery for the

families of victims of police violence, which I discuss

below.

After Chaudhry v. City of Los Angeles, 751 F.3d

1096, 1103 (9th Cir. 2014), which followed the same dubious reasoning as Valenzuela but goes unchallenged

here, the decedent’s estate is also entitled to recover

for pain and suffering the decedent endured before

death in a § 1983 action. The Valenzuela majority saw

no “meaningful way” to distinguish Chaudhry,” even

though, unlike here, Chaudhry focused specifically on

pre-death damages. The Valenzuela majority then

found California tort law inconsistent with the compensation and deterrence purposes of § 1983, despite

its making available nearly every conceivable form of

just damages.

App. 93

C. Post-Death “Hedonic” Damages

Post-death “hedonic” damages, which purport to

compensate a victim for the lost pleasure he would

have enjoyed from his life, can include injuries like the

lost “ability to enjoy the occupation of your choice, activities of daily living, social leisure activities, and internal well-being,”2 or the lost enjoyment of “going on

a first date, reading, debating politics, the sense of

taste, recreational activities, and family activities.”3

California permits “hedonic” damages awards in

tort cases where the victim survives. Huff v. Tracy, 57

Cal. App. 3d 939, 943 (Cal. 1976) (“California case law

recognizes, as one component of general damage, physical impairment which limits the plaintiff ’s capacity to

share in the amenities of life . . . No California rule restricts a plaintiff ’s attorney from arguing this element

to a jury.”) (internal citations omitted). But it does

not allow recovery for post-death “hedonic” damages.

Garcia v. Superior Ct., 42 Cal. App. 4th 177, 185 (Cal.

Ct. App. 1996).

But like the other limitations in its survival statute, California’s prohibition on post-death “hedonic”

damages is not unique; all but five states prohibit

them.4 And the states that do allow them do so only by

2

Schwartz, supra note 1, at 1038.

Id. at 1039 (citing Kansas City S. Ry. Co. v. Johnson, 798

So. 2d 374, 381 (Miss. 2001)).

4

The five states are Arkansas (Durham v. Marberry, 356

Ark. 491 (Ark. 2004)), Connecticut (Kiniry v. Danbury Hospital,

183 Conn. 448 (Conn. 1981)), Hawaii (Ozaki v. Ass’n of Apartment

Owners of Discovery Bay, 954 P.2d 652 (Haw. Ct. App. 1998)),

3

App. 94

statutory enactment, not as a judge-made invention

under the common law.

II.

DISCUSSION

A. Valenzuela’s Holding is Foreclosed by Robertson.

Judge Lee correctly pointed out that our analysis

in this case should begin with the Supreme Court’s

holding in Robertson. Valenzuela, 6 F.4th at 1104 (Lee,

J., dissenting). In Robertson, the plaintiff, Clay Shaw,

filed a civil rights action under § 1983 in the Eastern

District of Louisiana claiming malicious prosecution.

Shortly before trial commenced, Shaw died from

causes unrelated to the alleged civil rights violation.

436 U.S. at 585. After Shaw’s death, the executor of his

estate, Edward Wegmann, moved to be substituted as

plaintiff. Id. at 586. When the district court granted the

motion, the defendants responded by moving to dismiss the action on the ground that the action had

abated on Shaw’s death. Id. Under Louisiana law, tort

claims survived death only if brought by close relatives. Because Wegmann was not a close relative but a

mere executor of Shaw’s estate, applying Louisiana

law would cause Shaw’s § 1983 action to abate. Id. at

587–88.

The district court held that the Louisiana law was

inconsistent with federal law under § 1988 and denied

New Hampshire (Marcotte v. Timberlane/Hampstead Sch. Dist.,

143 N.H. 331 (N.H. 1999)), and New Mexico (Romero v. Byers, 117

N.M. 422 (N.M. 1994)).

App. 95

the defendants’ motion to dismiss. Id. at 587. The defendants filed an interlocutory appeal to the Fifth Circuit. Id. The Fifth Circuit affirmed and found the

Louisiana law which caused the action to abate was

“inconsistent with the broad remedial purposes embodied in the Civil Rights Acts.” Shaw v. Garrison, 545

F.2d 980, 983 (5th Cir. 1977) (overruled). The Supreme

Court reversed, writing that “despite the broad sweep

of § 1983, we can find nothing in the statute or its underlying policies to indicate that a state law causing

abatement of a particular action should invariably be

ignored in favor of a rule of absolute survivorship.” Id.

at 590.

1. If a state law causing total abatement of

a particular claim is consistent with

§ 1983, so is a law barring a single category of damages.

The Valenzuela majority adopted the same failed

position as the Fifth Circuit in Robertson, arguing that

California’s prohibition on post-death “hedonic” damages, “run[s] afoul of § 1983’s remedial purpose. . . .”

Valenzuela, 6 F.4th at 1103. But just as the Robertson

Court found “nothing in the statute or its underlying

policies to indicate that a state law causing abatement

of a particular action should invariably be ignored in

favor of a rule of absolute survivorship,” Robertson, 436

U.S. at 590, the Valenzuela majority has pointed to

“nothing in the statute or its underlying policies to indicate that a state law” prohibiting the award of a single category of damages “should be invariably ignored

App. 96

in favor of a rule of ” damages maximization. Id. Yet

that is precisely what the majority held.

Robertson found that Louisiana’s survival law

which entirely abated the § 1983 action was not inconsistent with § 1983 especially in light of the fact that

“most Louisiana actions survive the plaintiff ’s death.”

Id. at 591. Similarly, California’s tort damages scheme,

as modified by Chaudhry, is consistent with § 1983 because it makes available every category of damages, except post-death “hedonic” damages. It stands to reason

that if abatement of an entire cause of action can be

not inconsistent with the policy goals of § 1983, a law

prohibiting a single category of damages should be not

inconsistent as well.

2. Robertson rejected the majority’s point

that post-death “hedonic” damages are

necessary to incentivize police not to

kill.

The Valenzuela majority also argued that California law was inconsistent with the deterrent purpose of

§ 1983 because it has “the perverse effect of making it

more economically advantageous for a defendant to

kill rather than injure his victim.” Valenzuela, 6 F.4th

at 1102 (citing Chaudhry, 751 F.3d at 1103–04). As a

practical and mathematical matter this is not accurate, as discussed below. But more importantly, as a legal matter, the Supreme Court in Robertson has

already rejected this argument:

App. 97

In order to find even a marginal influence on

behavior as a result of Louisiana’s survivorship provisions, one would have to make the

rather farfetched assumptions that a state official had both the desire and the ability deliberately to select as victims only those persons

who would die before conclusion of the § 1983

suit . . . and who would not be survived by any

close relatives.

Robertson, 436 U.S. at 592 n.10. To think that a police

officer, when deciding to use deadly force, calculates

the difference in exposure of himself and his employer

to damages for the victim’s pain and suffering versus

wrongful death damages arising from the instant

death of the victim is necessarily based on the “rather

far-fetched assumption” that the policeman had information about the suspect’s family and earning potential, and had the sang-froid, the cynicism, and the time

to calculate the optimal result in damage reduction before he used that force.

3. Robertson considered and rejected the

majority’s hypothetical about the victim

with no family.

The Valenzuela majority also argued that, in the

absence of post-death “hedonic” damages, the availability of a wrongful death claim in California is insufficient to bring California’s damages scheme in line

with the federal law because, “such a framework would

still preclude recovery for the decedent who is penniless, without family, and killed immediately on the

App. 98

scene.” Valenzuela, 6 F.4th at 1103. But the Supreme

Court had rejected this argument as well; a zero-recovery result is no basis to disregard state law. See id. at

1106 (Lee, J., dissenting) (“[W]e cannot refuse to apply

a state law just because it causes abatement of a particular action.” (quoting Robertson, 436 U.S. at 590–91)

(cleaned up)).

Acknowledging that Louisiana’s survival law precluded recovery for people without families, the Court

went on to say that “surely few persons are not survived by one of these close relatives, and in any event

no contention is made here that Louisiana’s decision to

restrict certain survivorship rights in this manner is

an unreasonable one.” Id. at 592. Indeed, “[t]he reasonableness of Louisiana’s approach is suggested by the

fact that several federal statutes providing for survival

take the same approach. . . .” Id. at 592 n.8. Similarly,

here, there are no federal statutes which state a possible recovery for post-death “hedonic” damages, and

the reasonableness of California’s approach is evidenced by the fact that 44 other states prohibit such

damages. Confronted with the majority’s hypothetical,

the Supreme Court was unpersuaded and found no inconsistency between the Louisiana law and the remedial purposes of § 1983, even when total abatement of

the family-less and penniless victim’s claim was at

stake.

App. 99

4. Any limitations in Robertson’s holding do

not support the panel majority’s conclusion.

The opposition to the petition for rehearing en

banc downplays the applicability of Robertson’s holding because, in that case, the victim’s death was not

due to his unconstitutionally inflicted injuries.5

But the Robertson holding left open only the narrow question of “whether abatement based on state law

could be allowed in a situation in which deprivation of

federal rights caused death.” Id. at 594–95 (emphasis

added). The California law at issue does not cause any

action to abate—it merely fails to award one item of

damages after allowing pre-death economic damages,

wrongful death damages, damages for loss of consortium, and now, per Chaudhry, pre-death pain and suffering damages.

Furthermore, Robertson’s limited holding did not

make this court’s holding in Valenzuela a foregone conclusion. Leaving the question open did not preordain

its answer, and the majority opinion fails to explain

how Valenzuela is meaningfully distinguishable from

5

I acknowledge that Robertson’s holding is limited: “Our

holding today is a narrow one, limited to situations in which no

claim is made that state law generally is inhospitable to survival

of § 1983 actions and in which the particular application of state

survivorship law . . . has no independent adverse effect on the

policies underlying § 1983 . . . We intimate no view, moreover,

about whether abatement based on state law could be allowed in

a situation in which deprivation of federal rights caused death.”

Robertson, 436 U.S. at 594.

App. 100

Robertson. Confronted with the facts of Valenzuela, in

which the family of the victim of the constitutional

violations was awarded millions of dollars, it is a

stretch to infer that the Supreme Court would have

reached a different conclusion than the one it reached

in Robertson, where the victim’s estate went entirely

uncompensated.

5. Robertson is widely applicable.

The Sixth Circuit, relying on Robertson has already held that prohibitions on post-death “hedonic”

damages are not inconsistent with § 1983 because

§ 1983 compensates for “actual damages suffered by

the victim” and a loss of life is not “actual . . . because

it is not consciously experienced by the decedent.”

Frontier Ins. Co., 454 F.3d at 601–03.6

In Sharbaugh v. Beaudry, 267 F. Supp. 3d 1326,

1335 (N.D. Fla. 2017), the court held that Florida’s prohibition on pre-death pain and suffering damages in

wrongful death actions was not inconsistent with

§ 1983 because “neither § 1983 nor the common law

expressly provided for the survival of a personal injury

6

Why the Sixth Circuit’s opinion is perfectly consistent with

the common law theory of awarding damages only for harms consciously experienced is discussed below. See infra Part II(C)(2).

However, the Seventh Circuit has reached the opposite conclusion. See Bell, 746 F.2d at 1239 (holding that a Wisconsin law

precluding post-death “hedonic” damages was inconsistent with

§ 1983 because it created perverse incentives for police officers to

kill rather than injure). If not vacated en banc, the panel majority’s opinion here will deepen the circuit split.

App. 101

pain and suffering claim after death occurs, and . . .

Congress has placed the survival of claims in the legislative hands of the states.”

In that case, the plaintiff argued that the lack of

pre-death pain and suffering damages would not satisfy the compensation and deterrence goals of § 1983

because the victim, “had a learning disability which

limited his earning potential, he had no loss of earnings before his death, he permitted his children to be

adopted by his father-in-law, and the State of Florida

paid for his cremation.” Id. at 1336.

The court was unpersuaded. Citing Robertson, the

court correctly noted that the “inquiry under § 1988 . . .

is not whether the level of damages that a particular

plaintiff will receive in the specific circumstances of

one case is inconsistent with the civil rights policies

but rather whether the state law is inconsistent with

federal policies.” Id. Even if looking at the actual damages awarded to the plaintiff was the relevant inquiry

under Robertson, in this case, Valenzuela’s estate and

his family were awarded millions of dollars even without the “hedonic” damages.

B. California Tort Law is Consistent with the

“Broad Remedial Purposes” Which Underlie § 1983.

Consistent with the Supreme Court’s decision in

Robertson, California’s ban on post-death “hedonic”

damages awards should not be viewed in a vacuum.

Robertson found that Louisiana’s survival law which

App. 102

entirely abated the action was not inconsistent with

§ 1983 in light of the fact that “most Louisiana actions

survive the plaintiff ’s death.” Id. at 591. Similarly,

here, California’s prohibition on post-death “hedonic

damages” should be viewed in the context of the other

available categories of damages, including damages for

pre-death economic losses, wrongful death, loss of consortium, and, as modified by Chaudhry, pre-death pain

and suffering.

1. Unconstitutional police killings do not

save money in California.

Not only has the majority’s “perverse effect” argument been rejected by the Supreme Court but given

the wide availability of damages under California law,

there is simply no evidence that police officers are economically incentivized to kill rather than injure. Valenzuela, 6 F.4th at 1102 (citing Chaudhry, 751 F.3d at

1103–04). In fact, the facts of Valenzuela belie this assertion.

Imagine if Valenzuela’s injuries were not fatal and

he survived his encounter with police long enough to

obtain a judgment at trial. Under California law, plaintiffs are not entitled to a separate pain and suffering

instruction and a pre-death “hedonic” damages instruction. Huff, 57 Cal. App. 3d. at 944. Thus, in this

hypothetical, the jury would have been able to compensate Valenzuela only for his pain and suffering and any

economic damages he incurred as a result of the officers’ excessive force. Based on what the jury awarded

App. 103

Valenzuela’s estate for his pre-death pain and suffering, we can assume this number would be in the ballpark of $6 million. Valenzuela, 6 F.4th at 1101 n.4.

If Valenzuela had died prior to trial but the jury

had not awarded post-death “hedonic” damages in violation of California law, the jury could have awarded

the $6 million for pre-death pain and suffering to

Valenzuela’s estate and the $3.6 million it awarded for

wrongful death to the family, for a total of $9.6 million.

That is a damages award $3.6 million dollars greater

than what Valenzuela would have received had he

lived, even without post-death “hedonic” damages. We

see that the same is true in Craig v. Petropulos, 856 F.

App’x 649 (9th Cir. 2021) (unpublished), which was

decided at the same time and by the same panel as

Valenzuela. There, the jury awarded $200,000 in predeath pain and suffering, $1.4 million for wrongful

death, and $1.8 million for post-death loss of life. Even

operating under the doubtful assumption that police

officers respond to their economic incentives when

choosing to apply deadly force, they are still properly

incentivized to avoid the use of deadly force, and

thereby avoid an adverse wrongful death award. This

is so even without post-death “hedonic” damages added

to the equation. The majority’s math does not add up.

App. 104

2. The awards, even absent post-death “hedonic” damages, were more than adequate

as to deterrence and compensation.7

Westlaw has several tools to compare the wrongful

death awards that the families in Valenzuela and

Craig received to see whether my claim that wrongful

death awards in § 1983 cases are sufficient to satisfy

the remedial goals of § 1983 is borne out.

First, take a look at the Westlaw Personal Injury

Valuation Handbook. This resource compiles statistics

from wrongful death jury trials to create an average,

or “basic injury value” for wrongful death claims based

on the age, marital status, and number of children of

the deceased. This basic injury value can then be adjusted for income. Valenzuela was thirty-two when he

died, single, and had two children. Thus, his basic injury value for wrongful death according to the handbook is $1,737,197. However, he had no employment

nor salary at the time of his death. Thus, we decrease

this base number by 94%, which leaves us with

$104,231.82. Someone in the position of Valenzuela’s

family could hope to recover only $104,231.82 at a jury

trial for wrongful death on average. Valenzuela’s family was awarded $3.6 million.

We see a similar result in Craig. Brandon Witt was

thirty-nine and single, with no children at the time of

his death. It does not appear that evidence of his

7

Neither the plaintiffs in Valenzuela nor Craig sought additur to increase the damages awards; additur is available under

California law. Cal. Civ. Proc. Code § 662.5.

App. 105

income or salary was presented at trial, so without adjusting for income, the basic injury value for his wrongful death amounts to $975,000. His parents were

awarded $1.4 million for his wrongful death.

And there is no reason to believe that these outcomes are statistical aberrations. Westlaw has another

tool, California Jury Verdicts and Settlements, which

allows us to compare wrongful death awards in similar

cases. In Estate of Rose v. County of Sacramento, 2017

WL 5564148 (E.D. Cal. 2017), the parents of an excessive force victim who died by police gunshot received

$4.5 million in wrongful death damages. In Sentell v.

City of Long Beach, 2013 WL 6515430 (C.D. Cal. 2013),

the excessive force victim’s family received $4.5 million

in wrongful death damages. In Estate of Pickett v.

County of San Bernardino, 2018 WL 10230033 (C.D.

Cal. 2018), the excessive force victim’s parents were

awarded $8.5 million in wrongful death damages.

The availability of other forms of damages, including wrongful death damages, brings California’s tort

scheme in line with federal law, even in the absence of

post-death “hedonic” damages. In Garcia, 42 Cal. App.

4th at 185, the California Court of Appeal reached that

conclusion when it held that California’s prohibition on

post-death “hedonic” damages awards was not inconsistent with § 1983 because the availability of punitive

damages in survival actions satisfied the compensation and deterrence goals of § 1983.

App. 106

3. The majority’s rebuttal is unpersuasive.

The majority opinion in Valenzuela offers two

counterpoints to explain why the availability of a

wrongful death remedy is not enough to bring California’s prohibition on post-death “hedonic” damages in

line with federal law. Neither of these arguments are

persuasive.

a. The victim without family is not before

us.

First, the majority argues that California’s wrongful death remedy is insufficient to deter police killings

because “such a framework would still preclude recovery for the decedent who is penniless, without family,

and killed immediately on the scene.” Valenzuela, 6

F.4th at 1103. But these are not the facts before us.

Moreover, this argument was already foreclosed by

Robertson, which, as discussed above, refused to toss

aside state tort law merely because that law resulted

in a zero-recovery outcome for that particular plaintiff,

even if that plaintiff died with no family.

Robertson is not alone among Supreme Court

precedents in its rejection of the majority’s claim that

police officers respond to their economic incentives

when deciding to use deadly force. As the Court wrote

in Whitley v. Albers, 475 U.S. 312, 320 (1986), police officers making decisions “in haste, under pressure, and

frequently without the luxury of a second chance” do

not stop and evaluate whether the victim in a fastdeveloping confrontation has family before using

App. 107

deadly force. In the words of Justice Holmes,

“[d]etached reflection cannot be demanded in the presence of an uplifted knife.” Brown v. United States, 256

U.S. 335, 343 (1921). Yet the idea that police officers

perform this “detached reflection” out of economic

self-interest is the dubious assumption upon which

Valenzuela’s holding rests.8

b. Post-death “hedonic” damages do not

compensate the victim.

The majority also dismissed out of hand the possibility that California’s wrongful death claim brings

California’s statutory scheme in line with § 1983

simply because the wrongful death award “address[es]

different injuries.” Valenzuela, 6 F. 4th at 1103. Really?

If the wrongful death award and the post-death “hedonic” damages award are for “different injuries,” why

then do the two awards in Valenzuela match to the

penny? Much more likely than attempting to speculate

8

Judge Lee’s dissent also correctly points out that even in

the unlikely event that officers take time to reflect on their economic incentives before deploying deadly force, most are not personally liable for the damages awards they incur. Valenzuela, 6

F.4th at 1108 (“[E]ven the most malevolent officer would not kill

a suspect because it would be ‘economically advantageous.’ Almost all police officers today do not face any personal financial

liability because the government generally indemnifies them. The

real deterrents to police misconduct are not monetary damages

(which they do not personally pay anyway), but firings, negative

media attention, and potential criminal liability.”) (Lee, J., dissenting) (footnote omitted). Of course, neither of the Valenzuela

nor Craig juries found the officers were “malevolent,” since punitive damages were not awarded against them.

App. 108

how the elements of one award might differ in economic value from those of the other is the likelihood

that the jury simply doubled the awards for Valenzuela’s death: $3.6 million and $3.6 million for each of

the divorced Valenzuela’s two children.

This assumption is borne out by the closing arguments. Valenzuela’s attorney did not argue that the

jury should award a specific amount for Valenzuela’s

loss of life to his estate and a specific amount for

wrongful death to the children separately. Instead, he

repeatedly stated that all damages were to compensate

Valenzuela’s children:

So I know it sounds a little confusing because

you’re talking about the pain and suffering for

someone who has died already and his loss of

life, but under the Fourth Amendment, because you found excessive or unreasonable

force, those are damages that are recoverable

by law and they go to the children. Those damages go to the children.

This point was driven home by the court’s own

jury instructions: “Ladies and gentlemen, I just want

to be clear . . . You must award only the damages that

fairly compensate the children for their loss.”

Instead of the jury performing a separate calculation for the lost pleasure of Valenzuela’s life, Valenzuela’s children enjoyed double recovery for their

wrongful death damages.9 Rather than “compensation,”

9

The two awards for the death of Brandon Witt are only

slightly more disguised: his two parents were awarded post-death

App. 109

this double counting seems like over-compensation,

especially since § 1983 also provides for an award of

attorney’s fees.10

Just because the wrongful death claim compensates the family of the victim instead of the victim’s

estate (and thus, possible creditors) does not mean that

the wrongful death claim by itself cannot satisfy the

deterrent purpose of § 1983. What matters for deterrence is the size of the damages award, not the person

to whom the award is paid. As for compensation, Robertson already held that compensating the victim’s estate does not serve the compensation goal of § 1983

anyway, as those awards are always enjoyed by the

beneficiaries of the victim’s estate, and not the victim

of the unconstitutional violation himself. Robertson,

436 U.S. at 592.11

The size of the wrongful death damages awarded

to the families of the victims in Valenzuela and Craig

demonstrate why California’s prohibition on postdeath “hedonic” damages is not inconsistent with the

compensation and deterrence goals of § 1983. And the

majority’s only response to this point rests on flawed

assumptions about how police officers respond during

emergencies and who is ultimately responsible for paying out these multi-million-dollar damages awards.

“hedonic” damages of $1.4 million and wrongful death damages of

$1.8 million.

10

The prevailing party in a § 1983 action is entitled to attorney’s fees under 42 U.S.C. § 1988(b).

11

Why Robertson’s analysis on this point is consistent with

traditional tort law rules I discuss below. See infra Part II(C)(1).

App. 110

The majority would toss aside a robust state tort law

scheme for failure to achieve the unenumerated policy

goals of § 1983 based on a hypothetical which strains

credulity and then replace that state law with a rule

which, as the numbers show, does not do a better job of

serving those goals.

C. Post-death “hedonic” damages are contrary

to the common law of torts.

It is not the role of this court to decide whether

post-death “hedonic” damages are a good idea as a policy matter. California, one of the most plaintiff-friendly

of jurisdictions, has already decided to prohibit them—

along with 44 other states. But there is good reason not

to second guess California’s choice. Post-death “hedonic” damages contravene traditional tort law liability rules and cannot be reliably calculated.

1. Post-death “hedonic” damages do not

compensate the victim of the unconstitutional injury.

“[T]he law of torts attempts primarily to put an injured person in a position as nearly as possible equivalent to his position prior to the tort.” Restatement

(Second) of Torts, § 901, cmt. a. Because post-death “hedonic” damages are not awarded to the victim of the

tort but are awarded only after the victim has died, the

award is always enjoyed by the decedent’s estate.

Awards that go to the decedent’s estate are never able

to restore the decedent to his prior position of being

App. 111

alive nor do they provide substitute compensation to

the victim.

Indeed, because post-death “hedonic” damages are

awa

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