Byrd v. Guess
| Decision Date | 03 March 1998 |
| Docket Number | No. 96-55532,96-55532 |
| Parties | , 48 Fed. R. Evid. Serv. 1359, 98 Cal. Daily Op. Serv. 1486, 98 Daily Journal D.A.R. 2081 Ellen BYRD and Vivien Harkness, Plaintiffs-Appellants, v. James GUESS, Ronald Bates, Anthony Selvaggi, Alice Jemta, Charles Sylvia, Robert Wahlstrom, Robert Dunek, Los Alamitos City, Mark Vanholt, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Stephen Yagman and Marion R. Yagman, Yagman & Yagman, Venice, California, for appellants.
Bruce D. Praet, Ferguson, Praet & Sherman, Santa Ana, California, for appellees.
Appeal from the United States District Court for the Central District of California; Terry J. Hatter, Jr., District Judge, Presiding. D.C. No. CV-93-00523-TJH (JG).
Before: HALL, T.G. NELSON, Circuit Judges, and WINMILL, District Judge. *
INTRODUCTION
Sylvan Byrd was shot to death by two police officers. Byrd's wife, Ellen Byrd, and his mother, Vivien Harkness, brought this § 1983 action against the officers, among others. A jury trial was held, and after both sides rested, the district court declared a mistrial and invited the defendants to file a motion for summary judgment. The defendants filed the motion which the district court granted. Ellen Byrd and Vivien Harkness appealed. We affirm.
On January 23, 1993, Sylvan Byrd and his wife Ellen were arguing in their apartment in Los Alamitos, California. The neighbors called 911 to report a domestic disturbance, and police officers Vic Cantu and Mark VanHolt responded.
Officer Cantu arrived first. Listening through a closed door, he heard a woman sobbing and a man saying "I don't want to hurt you again." When Officer VanHolt arrived, Officer Cantu knocked on the door and covered the door's peephole with his hand. In response to the knocking, Sylvan grabbed a handgun while Ellen retreated to the kitchen where she could view the front door. Ellen testified that Sylvan opened the door with his left hand, holding the gun in his right hand behind his right thigh and pointed at the floor.
Ellen testified that Sylvan opened the door just 8 to 10 inches and bent his neck to look out. Within four seconds, according to Ellen, the officers pushed the door open and simultaneously fired their guns through the door, striking and killing Sylvan. Ellen testified that Sylvan never raised his gun from its position behind his right thigh, and never exchanged any words with the officers. It is undisputed that Sylvan's gun was loaded and that he had not fired any rounds.
The officers recall the events differently. Officer Cantu testified that Sylvan opened the door about 18 inches, not 8 to 10 inches as Ellen testified. Officer Cantu commanded Sylvan to "let me see your hand." Officer Cantu repeated this demand three or four times but got no response. Then, as the door started to close, Officer Cantu saw Sylvan raise his gun up through the slit between the door and the door jamb, and point it at Officer VanHolt. Officer Cantu then kicked the door in and started firing through the door in the location where he felt Sylvan was standing. Officer VanHolt also started firing. Sylvan died shortly thereafter from his bullet wounds.
Ellen Byrd and her mother Vivien Harkness (collectively referred to as the "Byrds") filed this § 1983 action to recover damages for Sylvan's death against (1) the city of Los Alamitos; (2) officers Cantu and VanHolt (the "Officers"); and (3) seven other individuals identified as "policymakers" with the city police. The complaint contained a claim under § 1983 for the violation of Sylvan's Fourth Amendment rights, and a wrongful death claim under California law.
Although the complaint notes that Ellen Byrd was Sylvan's wife, and that Vivien Harkness was Sylvan's mother, there was no allegation in the heading of the complaint or in its body that plaintiffs were suing in a representative capacity as Sylvan's successors in interest or as personal representatives of Sylvan's estate. The Officers challenged this in their Answer by stating in their twenty-seventh affirmative defense that "[p]laintiffs have no standing to bring this action as the heirs to decedent."
The parties held a pretrial conference on April 25, 1994. At this time, the only remaining defendants were the City and the Officers. The district court gave the parties thirty days to file summary judgment motions; bifurcated the Monell issues; 1 set a trial date for January 25, 1995; and entered a pretrial order. That order contained no indication that the Byrds were suing in a representative capacity or were pursuing their state wrongful death claim.
The discovery deadline had passed, and the Byrds complained that discovery should be reopened on the Monell issues. This was an oral request; no written Rule 56(f) motion was filed at this time. The district court denied the request. There was no discussion of the Byrds' failure to make any allegations in their complaint that they were suing in a representative capacity.
The City moved for summary judgment under Monell on the ground that there was no evidence that its police department had any custom or policy of using excessive force. In response, the Byrds filed a written motion under Rule 56(f) to do more discovery.
The district court granted the City's motion for summary judgment in a short order that contained no explanation. The district court did not specifically rule on the Byrds' Rule 56(f) request. The Officers were now the only defendants.
The case went to trial on September 29, 1995, before a jury. After five days of trial, both sides rested. During a jury instruction conference with counsel, the district court raised its concern that the Byrds did not sue in their representative capacity and thus had no standing to assert Sylvan Byrd's Fourth Amendment rights. The Byrds argued that they were in fact the successors in interest under California law, even though they had not alleged that in the complaint. The Byrds also asserted that Ninth Circuit case law gave them an independent cause of action under the Fourteenth Amendment to sue in their individual capacities for their own damages including loss of society and companionship.
The district court declared a mistrial, concluding that the Byrds could not recover for the violation of Sylvan's Fourth Amendment rights because the Byrds had failed to sue in their representative capacity. The district court then invited the Officers to file a summary judgment motion. The district court recognized that although the Byrds had no Fourth Amendment claim, they might have a Fourteenth Amendment claim for loss of consortium that they could bring in their individual capacities. The district court wanted briefing on that issue.
The district court discharged the jury without submitting any issues to them. The Officers filed a motion for summary judgment. 2 The Byrds responded with a motion to amend their complaint and modify the pretrial order. In the proposed amended complaint, the Byrds inserted a new claim that they were successors in interest to Sylvan and were asserting his Fourth Amendment rights. But the accompanying brief in support of the motion did not mention this new claim. Instead, the brief focused entirely on two other claims the Byrds proposed to add: a wrongful death claim (which was in the complaint but not the pretrial order) and a survival claim under California tort law (which had never been pled to this point).
The district court entered a Judgment granting the Officers' motion for summary judgment, and denying the Byrds' motion to amend their complaint and modify the pretrial order. The Judgment contains no explanation of the rulings. The Byrds appeal from these rulings.
1. Did the District Court err in finding that the Byrds lacked standing to assert the violation of Sylvan Byrd's Fourth Amendment Rights?
The district court did not issue a written opinion explaining its ruling that the Byrds lacked standing to assert the violation of Sylvan Byrd's Fourth Amendment rights. Nevertheless, the transcript of the court proceedings shows that the district court found that the Byrds lacked standing to assert Sylvan's Fourth Amendment rights because they did not sue in their representative capacity. Standing is a question of law reviewed de novo. See Johns v. County of San Diego, 114 F.3d 874, 876 (9th Cir.1997).
It is undisputed that survival actions are permitted under § 1983 if authorized by the applicable state law. See Smith v. City of Fontana, 818 F.2d 1411, 1416 (9th Cir.). It is also undisputed that California law applies to this case, and permits survival actions to be brought by the personal representative of the estate of the deceased or by the deceased's successors in interest. See Cal.Civ.Proc.Code § 377.60 (1996).
The Byrds' complaint does assert that Ellen Byrd is "the spouse of deceased Sylvan Byrd, and Plaintiff Vivien Harkness is the mother of the deceased." But there is no indication in the complaint's heading or body that the Byrds were suing in a representative capacity as successors in interest to Sylvan Byrd or as personal representatives of his estate. The complaint says nothing about the applicable state law on successorship interests, and nothing about whether the state law requirements have been fulfilled.
The pretrial order is likewise silent. In that section of the order where the parties are listed, the plaintiffs' names are listed without any notation of a representative capacity.
The Byrds had the burden of alleging and proving standing. See Northwest Environmental Defense Center v. BPA, 117 F.3d 1520, 1528 (9th Cir.1997). The Byrds failed to allege their representative capacity in their complaint, and failed to introduce any evidence that they were in fact the successors in interest of Sylvan Byrd under California law. The district court...
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Compel, resist and amend discovery
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Computer-Generated Materials
...saw as she approached the crossing. Also, some of the information that the animator relied upon was not accurate. See Byrd v. Guess , 137 F.3d 1126 (9th Cir. 1998), wherein facial expressions were removed from animated characters despite the complaint that it made them look like crazed andr......