B.B. v. Cnty. of L. A.

CourtCalifornia Court of Appeals
Citation25 Cal.App.5th 115,235 Cal.Rptr.3d 457
Decision Date10 July 2018
Docket NumberB264946
Parties B.B., a Minor, etc., et al., Plaintiffs and Appellants, v. COUNTY OF LOS ANGELES et al., Defendants and Appellants. T.E., a Minor, etc., et al., Plaintiffs and Appellants, v. County of Los Angeles et al., Defendants and Appellants. D.B., etc., et al., Plaintiffs and Respondents, v. County of Los Angeles et al., Defendants and Appellants.

25 Cal.App.5th 115
235 Cal.Rptr.3d 457

B.B., a Minor, etc., et al., Plaintiffs and Appellants,
COUNTY OF LOS ANGELES et al., Defendants and Appellants.

T.E., a Minor, etc., et al., Plaintiffs and Appellants,
County of Los Angeles et al., Defendants and Appellants.

D.B., etc., et al., Plaintiffs and Respondents,
County of Los Angeles et al., Defendants and Appellants.


Court of Appeal, Second District, Division 3, California.

Filed July 10, 2018
As Modified July 12, 2018
As Modified August 9, 2018

Certified for Partial Publication.*

Pine Tillett Pine, Norman Pine, Stacy Freeman, and Scott Tillett, Sherman Oaks; The Sweeney Firm and John E. Sweeney, Beverly Hills; Orange Law Offices and Olu K. Orange, Los Angeles, for Plaintiffs and Appellants B.B., a Minor, etc., et al. and T.E., a Minor, etc., et al.

Douglas/Hicks Law and Carl E. Douglas, Beverly Hills; Antablin & Bruce and Drew Antablin for Plaintiffs and Respondents D.B., etc., et al.

O’Melveny & Myers and Sabrina Heron Strong, Los Angeles; Manning & Kass, Ellrod, Ramirez, Trester, Eugene P. Ramirez, Louis W. Pappas, Steven J. Renick, Julie M. Fleming, and Angela M. Powell, Los Angeles, for Defendants and Appellants.


25 Cal.App.5th 119


Darren Burley suffered brain death from lack of oxygen due to a cardiac arrest following a prolonged and violent struggle

235 Cal.Rptr.3d 460

with several deputies of the Los Angeles County Sheriff’s Department, who were called to arrest Burley after he assaulted a woman while under the apparent influence of cocaine,

25 Cal.App.5th 120

marijuana, and PCP. In a wrongful death action brought by Burley’s estranged wife and five children (Plaintiffs) against the deputies and the County of Los Angeles (collectively, Defendants), a jury found Deputy David Aviles liable for intentional battery by use of excessive force and Deputy Paul Beserra liable for negligence resulting in Burley’s death. The jury attributed 40 percent of the fault to Burley for his own death, and found Deputies Aviles and Beserra each 20 percent at fault, while allocating the remaining 20 percent of fault to the other deputies. The jury awarded Plaintiffs $8 million in noneconomic damages, and the trial court entered judgment against Aviles for the full amount of the award based on the jury’s finding that he intentionally harmed Burley.

On appeal, Defendants argue (1) the evidence was insufficient to support the jury’s causation findings; (2) multiple irregularities and instances of misconduct by Plaintiffs’ attorneys combined to deprive Defendants of a fair trial; (3) the trial court improperly instructed the jury on damages and the evidence was insufficient to support the damages award; and (4) the court erred in holding Deputy Aviles liable for the full noneconomic damages award despite the jury’s comparative fault allocation. We agree with Defendants that Civil Code section 1431.2 mandates allocation of the noneconomic damages award in proportion to each defendant’s comparative fault, notwithstanding the jury’s finding of intentional misconduct. Accordingly, we will direct the trial court to vacate the judgment and enter a separate judgment against Deputy Beserra and the County and a separate judgment against Deputy Aviles and the County, holding them liable for the noneconomic damages award in an amount proportionate to the jury’s comparative fault determinations. We find no reversible error on the other grounds.

Plaintiffs B.B., B.B., and T.E. ("Cross-Appellants") filed a cross-appeal from the trial court’s order granting Defendants summary adjudication on Cross-Appellants’ claims for civil rights violations under Civil Code section 52.1. One plaintiff, T.E., also cross-appeals from the court’s order denying her motion for private attorney general fees under Code of Civil Procedure section 1021.5. We conclude the summary adjudication order must be reversed as to the Cross-Appellants, because Cross-Appellants presented sufficient evidence to raise a triable issue as to whether the deputies acted intentionally in interfering with Burley’s right to be free from unreasonable seizure. We find no error in the court’s order denying the motion for attorney fees.


In this section we give an overview of the facts necessary to put the disputed issues in context. Additional facts relevant to specific issues are discussed in later sections. Consistent with our standard of review and the rules of appellate procedure, we state the facts in the light most favorable to the judgment. ( Orthopedic Systems, Inc. v. Schlein (2011) 202 Cal.App.4th 529, 532, fn. 1, 135 Cal.Rptr.3d 200.)

25 Cal.App.5th 121

On the evening of August 3, 2012, residents of a Compton, California neighborhood heard frantic screams for help and saw a man, later identified as the decedent, Darren Burley, straddling a woman in the street. Two residents confronted Burley and pushed him off the struggling woman, allowing her to flee. Others called 911 to report the incident.

Deputies David Aviles and Steve Fernandez were the first to arrive at the

235 Cal.Rptr.3d 461

scene. As the deputies approached Burley, he stood up, faced them, and, with a blank stare, began making grunting sounds while moving toward them in slow, stiff, exaggerated robotic movements, leading the deputies to conclude that he might be under the influence of PCP. Aviles ordered Burley to get on his knees facing away from the deputies. Burley did not respond.

Suddenly, a distraught woman ran into the street, pointed at Burley and yelled, "He tried to kill me!" Burley’s attention turned to the woman, and as he moved to pursue her, Deputy Fernandez "hockey checked" him, causing Burley to hit his head on a parked truck before falling to the ground.

After a struggle, the deputies maneuvered Burley to a prone position, face-down on the concrete. Deputy Aviles then mounted Burley’s upper back, while pinning Burley’s chest to the ground with the maximum body weight he could apply. As Deputy Fernandez knelt on Burley’s upper legs with all of his weight, Aviles pressed his right knee down on the back of Burley’s head, near the neck, and his left knee into the center of Burley’s back. Burley struggled against the deputies, trying to raise his chest from the ground.

Carl Boyer witnessed the altercation. He testified that one of the deputies held Burley in some type of "head-lock" during most of the struggle. Boyer also saw a deputy hit Burley in the head several times with a flashlight. He said Burley appeared to be gasping for air.

When Deputy Paul Beserra arrived, Burley was face-down and Deputies Aviles and Fernandez were trying to restrain him. Deputies Timothy Lee, Ernest Celaya, and William LeFevre arrived soon after. Beserra attempted to restrain Burley’s left arm, while Lee assisted on the right and Celaya held Burley’s feet. Celaya and Lee tased Burley multiple times without apparent effect. Eventually the deputies succeeded in handcuffing Burley and hobbling his legs. Beserra estimated three to four-and-a-half minutes passed between his arrival and Burley’s handcuffing. Burley was prone on his stomach the whole time, with Aviles on his back.

While the other deputies disengaged, Deputy Beserra stayed with Burley. Approximately two minutes later, Beserra heard Burley’s breathing become labored and felt his body go limp. Beserra did not administer C.P.R.

25 Cal.App.5th 122

When paramedics arrived, Captain Jason Henderson of the Compton Fire Department found Burley still face-down on his stomach, with Beserra pressing his knee into the small of Burley’s back. Burley had no pulse. Paramedics immediately began treating him with C.P.R., a bag-valve mask connected to an oxygen tank, and an endotracheal tube. After five minutes, they restored Burley’s pulse and transported him to the hospital.

Burley never regained consciousness and he died 10 days later. The autopsy report listed the cause of death as brain death and swelling from lack of oxygen following a cardiac arrest"due to status post-restraint maneuvers or behavior associated with cocaine, phencyclidine and cannabinoids intake." The manner of death was marked, "could not be determined."

Three sets of plaintiffs filed lawsuits against the County and deputies: (1) Burley’s estranged wife, Rhandi T., and their two children; (2) Burley’s two children with Shanell S.; and (3) Burley’s child with Akira E. The complaints asserted causes of action for battery, negligence, and civil rights violations under Civil Code section 52.1. Defendants moved for summary adjudication of the civil rights claim. The court granted the motion, and the consolidated cases proceeded to trial on the battery and

235 Cal.Rptr.3d 462

negligence claims against the County and Deputies Aviles, Fernandez, Beserra, Celaya, Lee, and LeFevre.

After a several-weeks-long trial, the jury returned a...

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    • August 10, 2020
    ...Aviles had to be reduced in accordance with the jury's allocation of responsibility to him. ( B.B. v. County of Los Angeles (2018) 25 Cal.App.5th 115, 235 Cal.Rptr.3d 457.) It relied on section 1431.2, which provides in relevant part: "In any action for personal injury, property damage, or ......
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