Van Ort v. Estate of Stanewich, s. 94-56766

Citation92 F.3d 831
Decision Date06 August 1996
Docket NumberNos. 94-56766,95-55284,s. 94-56766
Parties96 Cal. Daily Op. Serv. 5837, 96 Daily Journal D.A.R. 9492 Donald VAN ORT; Helen Van Ort, Plaintiffs-Appellants, v. ESTATE OF Michael STANEWICH, deceased; Anna L. Prevost, as Special Administratrix of the Estate of Michael Stanewich; County of San Diego; San Diego County Sheriff's Department, Defendants-Appellees. Donald VAN ORT; Helen Van Ort, Plaintiffs-Appellees, v. Anna L. PREVOST, as Special Administratrix of the Estate of Michael Stanewich; County of San Diego; San Diego County Sheriff's Department, Defendants, and Estate of Michael Stanewich, deceased, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Erwin Chemerinsky, University of Southern California Law Center, Los Angeles, California; Dwight Ritter, San Diego, California, for the plaintiffs-appellants-cross-appellees.

Greg J. Ryan, Sparber, Ferguson, Naumann, Ponder & Ryan, San Diego, California, for defendant-appellee-cross-appellant, Estate of Stanewich.

Ricky R. Sanchez, Deputy County Counsel, San Diego, California, for the defendant-appellee.

Appeals from the United States District Court for the Southern District of California, Irma E. Gonzalez, District Judge, Presiding. D.C. No. CV-92-00777-IEG.

Before: WALLACE and T.G. NELSON, Circuit Judges, and BROWNING, * District Judge.

WALLACE, Circuit Judge:

Donald Van Ort and his grandmother, Helen (the Van Orts), appeal from the district court's judgment reversing a jury verdict in their favor. The Van Orts also appeal from the district court's judgment against them on their state law negligence claims.

The Estate of Stanewich (Estate) joins in the Van Orts' appeal of the district court's rulings on the federal civil rights and state law negligence claims. It separately appeals from the district court's denial of its motion to limit the Van Orts' claims to the insurance policy coverage.

The district court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1367. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm in part, reverse in part, and remand for entry of an amended judgment.

I

San Diego County Sheriff's Deputy Michael Stanewich served as an area detective stationed at the San Diego Sheriff's Encinitas substation. His duties included undercover narcotics investigation.

On May 30, 1991, Stanewich and other officers conducted a narcotics search of the Van Orts' Encinitas residence. The officers found no contraband or illegal drugs, and the search resulted in no criminal prosecutions. During the course of the search, however, officers required Donald to open a safe which contained cash, jewelry, and coins.

Stanewich received permission to be off duty on the morning of July 3, when he returned to the Van Orts' home. The record gives two differing accounts as to what occurred. According to depositions submitted by the Van Orts, Stanewich forcibly entered their home. The depositions state that Stanewich wore blue jeans, a mask over his face, and latex gloves. They also state that Stanewich did not display his badge and denied being a police officer.

At trial, however, Donald gave a somewhat different account. He testified that, in response to the doorbell, he opened his front door slightly and recognized Stanewich. In this account, there was another individual accompanying Stanewich. Only after Donald recognized him did Stanewich put on a nylon mask, point a gun at Donald, and put on dark glasses. Donald then shouted, "It's a robbery, Grandma."

Both accounts agree, however, that Stanewich then attacked and tortured the Van Orts. He bound Donald, placed a pillowcase over his head and doused him with lighter fluid. He threatened to set him on fire unless he was given the combination to the safe. Stanewich then dragged Helen from room to room and demanded from her the safe's combination. Donald's girlfriend was in a bedroom and, upon Stanewich's entry, escaped to a neighbor's house where a 911 call was placed.

The responding police officer entered the home, twice ordered the intruder to "freeze," and shot Stanewich when he failed to comply. The officer then unmasked Stanewich, immediately recognized him and exclaimed, "Mike!" Stanewich responded, "Yes, it's me, I'm wrong," and died.

The Van Orts brought suit against Stanewich's estate, the County of San Diego (County), the San Diego Sheriff's Department, and others, seeking damages for mental and physical injuries pursuant to 42 U.S.C. § 1983 and several state laws. Before the August 1994, trial, the district court granted the County's motion for summary judgment on the Van Orts' federal and state claims for vicarious, respondeat superior liability. In reaching this conclusion, the district court found that Stanewich did not use his "authority as a peace officer ... to commit his misdeeds" and that "[n]o reasonable jury could conclude, under the facts of this case, that Michael Stanewich's assault and attempted robbery of plaintiffs on July 3, 1991 was anything but a substantial departure from his duties for purely personal reasons." The district court allowed the claims for direct liability for both the federal civil rights and state negligence causes of action to proceed to trial.

On September 8, 1994, after the close of all evidence but before the case went to the jury, the district court rendered a judgment as a matter of law on the Van Orts' state law negligence claim against the County. The district court concluded that Stanewich's supervisors and the County did not owe a duty to the Van Orts for Stanewich's actions outside of his scope of employment. Relying on its prior conclusion that Stanewich did not act within the scope of his duty, the district court ruled that the County owed no duty to the Van Orts and, therefore, they could not maintain a suit against the County based on state negligence law.

The district court allowed the jury to decide the federal civil rights claim under a direct liability theory. In a special verdict, the jury found the County's official policies were deliberately indifferent and caused "the deprivation of the plaintiffs' [constitutional] rights." The jury also found against the Estate.

After the verdict was returned, the County moved for judgment as a matter of law, which the district court granted. Declining to reconsider its finding that Stanewich was not acting under color of law, the district court examined the conditions under which a constitutional right exists to be free from harm inflicted by private actors. According to the district court, such a right exists where the government (1) abuses a "special relationship" it created with the plaintiff, which leads to injury inflicted by nongovernment actors; or (2) through affirmative conduct, places the plaintiff in danger. The district court concluded that neither of these conditions were met and, therefore, there was no "state liability for private-actor harm." It also ruled that the evidence did not support the jury findings of causality and deliberate indifference. The verdict against the Estate remained intact.

We review de novo the district court's judgment notwithstanding the verdict. Bank of the West v. Valley Nat'l Bank of Ariz., 41 F.3d 471, 477 (9th Cir.1994). A judgment reversing the jury's verdict as a matter of law is appropriate when the evidence, construed in the light most favorable to the nonmoving party, permits only one reasonable conclusion, and that conclusion is contrary to the jury's. Vollrath Co. v. Sammi Corp., 9 F.3d 1455, 1460 (9th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 2163, 128 L.Ed.2d 886 (1994). We review de novo the district court's denial of the Estate's motion to limit the amount of recovery because the Estate's separate appeal is based on the Van Orts' failure to comply with the California probate statute, which presents a question of statutory law. See Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781, 783 (9th Cir.1995) (reviewing interpretation of statute de novo).

II

Our analysis of municipal liability under section 1983 begins, of course, with Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Concluding that a municipality can be a "person" under section 1983, this benchmark opinion held that if the "execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury [then] the government as an entity is responsible under § 1983." Id. at 694, 98 S.Ct. at 2037-38. Based upon City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) (Canton ), we have stated four conditions that must be satisfied in order to establish municipal liability for failing to act to preserve constitutional rights: "(1) that [the plaintiff] possessed a constitutional right of which he was deprived; (2) that the municipality had a policy; (3) that this policy 'amounts to deliberate indifference' to the plaintiff's constitutional right; and (4) that the policy is the 'moving force behind the constitutional violation.' " Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir.1992) (Oviatt ), quoting Canton, 489 U.S. at 389-91, 109 S.Ct. at 1205.

In Canton, the Supreme Court announced these requirements in the context of a negligent training claim. They have since been applied to negligent supervision and hiring claims, too. See Davis v. City of Ellensburg, 869 F.2d 1230, 1235 (9th Cir.1989) (negligent supervision); Benavides v. County of Wilson, 955 F.2d 968, 972 (5th Cir.) (negligent hiring), cert. denied, 506 U.S. 824, 113 S.Ct. 79, 121 L.Ed.2d 43 (1992). We apply the Canton analysis here to the Van Orts' claims of negligent training, supervision, and monitoring.

The district court concluded that the Van Orts failed to satisfy the first, third, and fourth requirements of Oviatt. W...

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