Judge Stephen I. Goorvitch, Case Number: 21STCV17510, Date: 2023-10-23 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 21STCV17510, Date: 2023-10-23 Tentative Ruling

Case Number: 21STCV17510 Hearing Date: December 14, 2023 Dept: 39

A. Jamal Shakir v. City of Los Angeles, et al.

Case No. 21STCV17510

Motion for New Trial and Judgment Notwithstanding the Verdict

Plaintiff A. Jamal Shakir (“Plaintiff”) filed this action against the City of Los Angeles (the “City”) and certain Los Angeles Police Department (“LAPD”) officers after he was hit with “less than lethal” projectiles during a Black Lives Matter demonstration in downtown Los Angeles. The case proceeded to trial against the City, as well as Officer Eric Anderson (who is Plaintiff’s uncle) and Sergeant Robert Bechtol. The jury found in favor of Defendants on the civil rights claim and the battery claim. The jury found in favor of Plaintiff against Sergeant Robert Bechtol and the City on the negligence claim and awarded him a total of $3.75 million in past and future non-economic losses. The Court also asked the jury to determine the percentage of liability for Plaintiff’s injuries. The jury determined that Sergeant Bechtol was 30% liable, and the City, by and through unknown LAPD officers, was 70% liable, for Plaintiff’s injuries.

Now, Defendants move for a new trial on the negligence claim, arguing as follows: (1) Plaintiff should not have been allowed to establish liability against an unidentified employee; (2) The special verdict form was defective because it permitted Plaintiff to recover for direct liability against the City and/or impose vicarious liability without establishing he necessary elements of a negligence claim against a single employee; (3) The motion to amend to permit Plaintiff to assert liability against a John Doe LAPD officer, per Government Code sections 815.2, should not have been granted; (4) The evidence was insufficient to justify the verdict; (5) The special verdict was inconsistent; and (6) The damages were excessive. Defendants also move for a judgment notwithstanding the verdict on similar grounds.

A. Plaintiff’s Negligence Claim and the Motion to Amend

Plaintiff asserted a negligence claim against the City, as well as Sergeant Bechtol. In support of that claim, Plaintiff alleged as follows:

¶ 45. Plaintiff incorporate by reference the allegations contained in paragraphs 1 through 44 above as if fully set forth here.

¶ 46. On or before May 29, 2020, each of the Defendants CITY, ANDERSON, and DOES 1 through 40 owed Mr. SHAKIR the duty to be free to walk and/or peacefully protest on the streets of Los Angeles, without inflicting using [sic] excessive, unreasonable, or unlawful force upon him.

¶ 47. On or about May 29, 2020, each of these Defendants violated that duty of care in the negligent, careless, unintentional and reckless manner with which they interacted with Mr. SHAKIR including, but not limited to:

a. The negligent investigation into Mr. SHAKIR’ [sic] presence, and the negligent decision to use unreasonable force against him; and/or

b. The negligent and careless training the Defendants CITY and DOES 31 through 40 provided Defendants ANDERSON, and DOES 1 through 30 concerning the use of unreasonable force which was inconsistent with general law as well as the state mandated policies and procedures as reflected in the Peace Officers Standards and Training (“POST”) program; and/or

c. Defendants ANDERSON, and DOES 1 through 30’s negligent, careless, and unintentional failure to follow the use of force training the Defendants CITY and DOES 31 through 40 provided them; and/or

d. Defendants ANDERSON, and DOES 1 through 30’s failure to properly assess the need to detain, imprison, and/or use force against Mr. SHAKIR; and/or

e. Defendants ANDERSON, and DOES 1 through 30’s negligent, careless, and unintentional discharge of their less-than-legal firearms while their weapons were pointed toward Mr. SHAKIR, causing the injuries and damages as described here; and/or f. The negligent handling of evidence and witnesses during the course of the investigation following the incident.

¶ 48. As a legal result of Defendants CITY, ANDERSON, and DOES 1 through 40’s actions and inactions as described here, Mr. SHAKIR sustained severe and permanent disfiguring injuries, pain and suffering to his mind and body in the past, and is reasonably likely to suffer similar injuries in the future, all in an amount to be determined according to proof at trial.

¶ 49. As a further legal result of each of the Defendants ANDERSON, and DOES 1 through 40’s conduct, JAMAL has been required to employ and did employ medical doctors, psychologists and psychiatrists to examine, treat and care for him. Consequently, JAMAL has each incurred medical costs for past medical bills and expenses, and expects to incur similar medical costs and expenses in the future, all in an amount to be determined according to proof at trial.

In sum, Plaintiff asserted a common law negligence claim against the City, as well as LAPD Officer Eric Anderson and Does 1 through 40. The complaint makes clear that Does 1 through 30 are LAPD officers who were at the protest that night and actually used unreasonable force. (See Complaint, ¶ 47(b) & (c).) The complaint makes clear that Does 31 through 40 are LAPD supervisors who provided training to the LAPD officers on scene that night. (Ibid.) On November 28, 2022, Plaintiff filed an amendment naming Sergeant Robert Bechtol in place of Doe 1. On March 1, 2023, Plaintiff filed an amendment naming LAPD Officer Jesse Correa in place of Doe 2 (who was later dismissed). The case proceeded to trial with Doe 3 through 30, who were LAPD officers at the scene that night.

The complaint had a legal error in that Plaintiff asserted a common law claim against the City directly. This was not permissible because under Government Code section 815(a), a public entity is not liable for an injury caused by the act or omission of a public employee except as provided by statute. Per Government Code section 815.2, however, a public entity is liable for an injury caused by a public employee “if the act or omission would . . . have given rise to a cause of action against that employee . . . .” (Gov. Code, § 815.2(a).) Plaintiff’s counsel predicated this cause of action on Government Code section 820, which states: “[A] public employee is liable for injury caused by his act or omission to the same extent as a private person.” (Gov. Code, § 820.) However, Plaintiff’s counsel neglected to cite section 815.2(a) as a basis for the negligence cause of action. The City did not demur to the complaint on this basis, so this issue first arose during trial. After Plaintiff rested, and before the Defendants’ case-in-chief, Plaintiff’s counsel made a motion to amend the complaint to conform to proof to add Government Code section 815.2 to support the negligence claim against the City. (RT: 8/16/23: pp. 246:17-248:7.) The Court granted that motion and declines to revisit the decision. The Court incorporates its ruling on the motion, contained in the Court’s order of August 17, 2023:

COURT’S ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO AMEND

BACKGROUND

Plaintiff A. Jamal Shakir (“Plaintiff”) filed this action against the City of Los Angeles (the “City”), as well as Los Angeles Police Department (“LAPD”) Officer Eric Anderson and Sergeant Robert Bechtol (collectively, “Defendants”). Plaintiff named LAPD Officer Jesse Correa, but dismissed him shortly before trial. Plaintiff asserts a cause of action under the Tom Bane Civil Rights Act, Civil Code section 52.1, et seq., against the City and the individual defendants. Plaintiff asserts a cause of action for battery against Sergeant Bechtol. Finally, Plaintiff asserts a cause of action for negligence against the individual defendants and the City under Government Code section 820. Now, Plaintiff moves to amend the complaint to fix an error: The complaint omitted Government Code section 815.2 as a basis for liability against the City. The City does not oppose this motion as it relates to common law claims against Officer Anderson and Sergeant Bechtol. However, the City opposes the motion as it relates to Plaintiff’s claim of negligence against the City based upon the actions of an unknown LAPD officer. Plaintiff’s counsel intends to argue this as an alternative theory in the event the jury concludes that Officer Anderson and Sergeant Bechtol are not liable. The motion is granted.

LEGAL STANDARD

The Court has authority to grant leave to amend the complaint to conform to proof at trial under Code of Civil Procedure section 473(a)(1). Such amendments have been allowed “with great liberality.” (Garcia v. Roberts (2009) 173 Cal.App.4th 900, 909, citing Trafton v. Youngblood (1968) 69 Cal.2d 17, 31.) However, “amendments to conform to the proofs should not be allowed when they raise new issues not included in the original pleadings and upon which the adverse party had no opportunity to defend.” (Garcia, supra, 173 Cal.App.4th at p. 909, citing Trafton, supra, 69 Cal.2d at p. 31.) Simply, the Court considers the nature of the amendment, the potential prejudice, and the reason for the delay. (See Duchrow v. Forrest (2013) 215 Cal.App.4th 1359, 1378-1379, citation omitted.)

DISCUSSION

Government Code section 815 provides that “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person” except as provided by statute. (Gov. Code, § 815, subd. (a); see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.) “[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.) Government Code section 820 provides that “a public employee is liable for injury caused by his act or omission to the same extent as a private person.” (Gov. Code, § 820(a).) Government Code section 815.2 imposes liability upon a public employee’s employer: “A public entity is liable for injury proximately caused by an act or omission of an employee of the public agency within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee . . . .” (Gov. Code, § 815.2(a).) Accordingly, Plaintiff seeks to amend each cause of action to assert liability against the City under section 815.2. The only dispute between the parties is whether Plaintiff should be permitted to do so with respect to the negligence claim against the City based upon the actions of an unknown LAPD officer. The Court answers this question in the affirmative for several reasons.

First, the amendment merely adds the legal basis for liability against the City and does not change the factual allegations in the complaint. Defendants’ counsel argues that Plaintiff seeks to assert an entirely new claim against the City. In fact, the complaint alleges that another LAPD officer may have negligently fired the less-than-lethal shots that injured Plaintiff. Specifically, Plaintiff alleges that:

“On or about May 29, 2020, each of these Defendants violated that duty of care in the negligent, careless, unintentional and reckless manner with which they interacted with Mr. Shakir, including, but not limited to . . . Defendants Anderson, and Does 1 through 30’s negligent, careless, and unintentional failure to follow the use of force training . . . and/or [their] negligent, careless, and unintentional discharge of their less-than-legal [sic] firearms while their weapons were pointed toward Mr. Shakir, causing [his] injuries and damages . . . .”

(Complaint, ¶ 47.) The complaint provided sufficient notice that the actions of Does 3 through 30, i.e., unidentified LAPD officers who may have fired the shots, would be at issue. The complaint also makes clear that Plaintiff would seek to hold the City responsible for the actions of these unknown officers. (See Complaint, ¶ 48.) The mere fact that Plaintiff’s counsel elected to focus on his stronger claims at trial does not change the fact that the complaint provides sufficient notice of his alternative theory.

Second, the Court finds good cause to permit the amendment. As an initial matter, the failure to allege section 815.2 as a basis for the City’s liability clearly was an oversight, given how the complaint was drafted. The City is named as a defendant with respect to common law claims, and this is defective on its face in the absence of a reference to section 815.2. More important, there is good cause to permit the amendment given the facts of this case. The videos and eyewitness testimony are not conclusive concerning the identity of the LAPD officer who injured Plaintiff. Plaintiff’s counsel’s theory at the beginning of trial was that Sergeant Bechtol fired the shots that injured his client. However, Defendants’ counsel did an effective job cross-examining witnesses on this issue. Defendants’ counsel did an effective job cross-examining Plaintiff on whether Officer Anderson actually pointed the baton at him. Moreover, Sergeant Bechtol testified that he believed a different LAPD officer fired the shots that injured Plaintiff. In the face of these developments during trial, Plaintiff is entitled to pursue an alternative theory in the event the jury accepts Defendants’ counsel’s arguments and Sergeant Bechtol’s testimony.

Finally, the Court finds no undue prejudice to the City. Because the City was a defendant in this case and faced potential liability for the alleged actions of the named defendants, the City had notice at the outset that it would need to investigate whether an LAPD officer caused Plaintiff’s injuries. In other words, regardless of the identity of the individual defendants, the City knew it would have a complete defense if it could prove that another protestor caused Plaintiff’s injury. Therefore, the amendment does not change the discovery on this issue.

The Court understands Defendants’ counsel’s argument that he did not anticipate Plaintiff’s counsel relying on his alternative theory. However, the issues will have been fully tried in this case, as there is no real dispute that Plaintiff was injured by an LAPD officer. There is no evidence that Plaintiff was hit with anything other than a less-than-lethal projectile; the LAPD officers were the only ones shooting that night; the videos showed LAPD officers shooting immediately before Plaintiff was hit; and even Sergeant Bechtol testified that he thinks Plaintiff was hit with a less-than-lethal projectile from an LAPD officer. Simply, there is no basis to conclude that Defendants’ counsel would have litigated the case differently based upon the identity of the particular officer.

At heart, whether the LAPD officers shot Plaintiff is not the dispositive issue with respect to the negligence claim. Rather, the dispositive issue is whether the LAPD officers were negligent, and the City’s argument is the same on this point regardless of the identity of the individual officer. Presumably, Defendants’ counsel will argue that the shooting officer was not negligent because it was a chaotic situation necessitating the use of force; some of the weapons were not target specific; and Plaintiff was negligent in failing to leave the area following the dispersal order.

Finally, Defendants’ counsel’s concern does not implicate the proposed amendment. Even had Plaintiff’s counsel included reference to section 815.2, the issue would have been the same: Plaintiff’s counsel would now seek to pursue this alternative theory, and Defendant’s counsel would raise the same concerns. Plaintiff’s lawyers are free to plead alternative theories and adapt their case based upon developments at trial.

B. Liability against Unidentified Employee

Defendants argue that Plaintiff may not proceed with a negligence claim against a Doe defendant—which gave rise to liability against the City under Government Code section 815.2—because the employee must be “specifically identified.” This does not require Plaintiff to “name” the offending officer. This much is clear: In order for vicarious public entity liability to attach, the public employee must be “either named as a defendant or at least ‘specifically identified’ by the plaintiff.” (Koussaya v. City of Stockton (2020) 54 Cal.App.5th 909, 944.) “[I]f a specific individual officer has not engaged in an act or omission giving rise to that officer’s tort liability, the City cannot be held vicariously liable.” (Id., p. 945, citing Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, 1113.) Plaintiff satisfied this standard. There is no dispute that the only law enforcement officers at the scene that evening were LAPD officers. The video recordings and other evidence make clear that only a limited number of officers were firing less-than-lethal projectiles. Plaintiff’s claim was based on one of these officers negligently firing less-than-lethal projectiles that injured him. This is sufficient to support the jury’s verdict, and Defendants’ motions are denied on this ground.

C. The Joint Special Verdict Form

Next, Defendants’ counsel argues that the joint special verdict form was deficient because it permitted the jury to find direct liability against the City. Defendants’ counsel argues as follows: “[O]ver Defendant’s objections, the Special Verdict form reflected direct liability findings against the City, in contravention of the law” because “the jury was asked whether unreasonable force was used by the City of Los Angeles (‘Unknown Officers’).” (Defendants’ Memorandum of Points & Authorities in Support of Motion for New Trial, p. 5:12-15.) Similarly, Defendants argue that the special verdict was inconsistent because the jury found in favor of Defendants on the battery claim but found against them on the negligence claim. The Court denies the motions on these for two reasons.

1. Defendants stipulated to the joint special verdict form

In fact, Defendants’ counsel stipulated to the joint special verdict form, including the reference to a finding against the “City of Los Angeles (Unknown Officers).” The record is as follows:

Following the Court’s decision to grant Plaintiff’s motion to amend to add Government Code section 815.2 as a predicate for the negligence claim, the Court ordered the parties to prepare a revised verdict form. (R/T: 8/17/23: 102:22-103:22.) The Court ordered the parties to email the verdict form to the Court that evening and bring hard copies the next morning. (R/T: 103: 8-14.) On August 17, 2023, at 8:25 p.m., Jamon Hicks sent an email to Judge Stephen Goorvitch, Kevin Rashidi, Thomas Hurrell, Carl Douglas, and a host of others who worked at Plaintiff’s and Defendants’ counsels’ law firms. The email stated: “Per your instructions, attached please find the Joint Special Verdict Form that has been agreed upon by both parties.” The attached proposed joint special verdict form had the following question in relevant part:

6. Did Defendants negligently use unreasonable force against Jamal Shakir?
CITY OF LOS ANGELES Yes ________ No ________

(Unknown Officers)

ROBERT BECHTOL Yes ________ No________

The Court has attached a copy of the email and attachment to this order. (See Exhibit A.)

The next morning, the Court discussed the jury instructions and proposed joint special verdict form. Defendant’s counsel referenced the proposed joint special verdict form and stated: “The verdict form itself makes it clear that they can make [a] finding against an unknown police officer,” referencing the proposed joint special verdict form. (R/T: 8/18/23: 15:4-6.) Initially, the Court expressed concern because the parties’ proposed joint special verdict form did not track the elements of the causes of action. (R/T: 8/18/23: 26:1-27:18.) The Court proposed a general verdict form, and Plaintiff’s counsel agreed, but Defendant’s counsel objected because he wanted a special verdict form. (R/T: 8/18/23: 27:28-28:8.) Plaintiff’s counsel then confirmed that Defendants’ counsel had stipulated to the proposed joint special verdict form, and Defendants’ counsel did not object. (R/T: 8/18/23: 28:27-29:22.) At that point, the Court proposed re-doing the verdict form to track the elements. (R/T: 8/18/23: 29:23-30:3.) The Court provided a revised verdict form that more closely tracked the elements. (R/T: 8/18/23: 34:25-26.)

Finally, the parties rejected the Court’s proposed special verdict form and stipulated to their own joint special verdict form, which was used in this case:

The Court: I had originally raised some questions about the verdict form, and I went and wordsmithed it on my own, and I think the attorneys -- and I’ll note the attorneys have been working very professionally together. I think the attorneys actually have fixed the problem in a lot more expeditious way than I did. . . . So, basically, the parties had agreed on a verdict form. They e-mailed me a version last night. Mr. Hurrell noticed two changes that he wants to make that Plaintiff has agreed to. No. 1, the verdict form on the second cause of action for battery, Question No. 4, “Did Defendant Bechtol intentionally” – adding the word “intentionally” – “use unreasonable force?” And with respect to the third cause of action, negligence, Question No. 6, “Did Defendants negligently use unreasonable force against Jamal Shakir” and then adding the words “to enforce the dispersal order.” Correct, Mr. Hurrell?

Mr. Hurrell: Yes.

The Court: Correct, Mr. Hill -- Sorry -- Mr. Hicks?

Mr. Hicks: Yes, Your Honor.

The Court: All right. So let me just be really clear for our record. My understanding is that this verdict form does not actually track the elements the way special verdict forms often do, and my understanding is the attorneys want to do it that way because there are certain elements that are in dispute, and there are certain elements that are not in dispute, and this is an unusual case in the sense that there are a lot of things that are actually agreed upon by the parties. And my understanding is the reason the parties want to use this special verdict form that only asks the jury certain questions and omit other [elements] is because they really want to focus on what is truly in dispute. And the parties are agreeing that if the jury gives “yes” answers to each question for the cause of action, that is sufficient to support the verdict on that cause of action. Correct, Mr. Douglas?

Mr. Douglas: Yes, Your Honor, it’s correct.

The Court So stipulated, Mr. Douglas?

Mr. Douglas: Yes, Your Honor, we’ll stipulate [to] it.

The Court: Correct, Mr. Hurrell?

Mr. Hurrell: Yes.

The Court: So stipulated?

Mr. Hurrell: Yes.

The Court: I will use your verdict form with those two changes . . . .

(R/T: 8/18/23: 57:19-60:14.) The Court then made the changes and provided copies to the attorneys:

The Court: I went ahead and made the changes to the verdict form. The parties gave me a verdict form. The changes I made were -- I did them in redline and then went through and highlighted the changes and gave each attorney a copy. . . . Mr. Hurrell, have you had a chance to look at the changes?

Mr. Hurrell: Not yet, but I’m sure they’re fine, Your Honor.

The Court: Just take a look right now. I appreciate your trust in me, Mr. Hurrell; But let’s be careful. Why don’t you take a look, and I’ll ask you when you’re done.

(Brief Pause)

The Court: So, Mr. Hurrell, have you had a chance to review the changes?

Mr. Hurrell: Yes, and they look fine.

The Court: All right. Are you stipulating to the use of this verdict form?

Mr. Hurrell: Yes, Your Honor.

(R/T: 8/18/23: 63:24-65:1.)

Based upon the foregoing, Defendants’ motions are denied on this ground. Defendants stipulated to the verdict form that was used, including the reference to liability against “The City of Los Angeles (Unknown Officers).” Accordingly, this is not a basis to grant Defendants’ motions. (See, e.g., Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1686-1687.)

2. There was no error in the verdict form

Regardless, there were no errors in the special verdict form. The form made clear that any liability against the City was based upon the actions of “Unknown Officers.” Similarly, there is nothing inconsistent with the verdict form. The jury found that the LAPD officers did not “intentionally use unreasonable force on Plaintiff Jamal Shakir.” (See Special Verdict Form, Question No. 4.) Indeed, Defendants’ counsel requested the addition of the word “intentionally” to this question. (R/T: 8/18/23: 58:25-59:7.) The jury found that the LAPD officers “negligently use[d] unreasonable force against Plaintiff Jamal Shakir to enforce the dispersal order.” (See Special Verdict Form, Question No. 6.) In sum, the jury found that the officers acted negligently, not intentionally, and the verdicts are not inconsistent.

D. The Damages

Defendants argue that the damages were excessive in this case. The Court may

grant a new trial based on “[e]xcessive or inadequate damages” or “[i]nsufficiency of the

evidence to justify the verdict or other decision[.]” (Code Civ. Proc., § 657, subds. (5), (6).) “A

new trial shall not be granted upon the ground of insufficiency of the evidence to justify the

verdict or other decision, . . . unless after weighing the evidence the court is convinced from the

entire record, including reasonable inferences therefrom, that the court or jury clearly should

have reached a different verdict or decision.” (Code Civ. Proc., § 657.) If the damages are

excessive, the Court may grant a remittitur. (Code Civ. Proc., § 662.5(a)(2).) Plaintiff presented evidence that he suffered a permanent injury to his dominant hand which impacted his career. Plaintiff presented evidence that he suffered an injury to his buttocks. Plaintiff presented evidence that he suffered emotional damages for which he received, and will continue to receive, treatment. The Court cannot conclude that the jury’s award was excessive under these circumstances.

E. The Evidence

Defendants argue that the evidence was insufficient to support the verdict. The jury watched the video recordings of the incident, which showed the events of the evening and the less-than-lethal projectiles hitting Plaintiff. There was sufficient evidence for the jury to conclude that the LAPD officers acted negligently in the course and scope of their duties.

CONCLUSION AND ORDER

Based upon the foregoing, the Court denies Defendants’ motions for new trial and for a judgment notwithstanding the verdict. Defendants’ counsel shall provide notice and file proof of such with the Court.