Munoz v. City of Union City

• Decision Date: 28 February 2007
• Docket Number: No. A110121.,A110121.
• Citation: 148 Cal.App.4th 173,55 Cal.Rptr.3d 393
• Court: California Court of Appeals Court of Appeals
• Parties: Yvette MUNOZ et al., Plaintiffs and Appellants, v. CITY OF UNION CITY et al., Defendants and Respondents.

55 Cal.Rptr.3d 393

148 Cal.App.4th 173

Yvette MUNOZ et al., Plaintiffs and Appellants, v. CITY OF UNION CITY et al., Defendants and Respondents.

No. A110121.

Court of Appeal, First District, Division 2.

February 28, 2007.

Law Office of Daniel U. Smith, Daniel U. Smith, Kentfield, Gwilliam, Ivary, Chiosso & Brewer, Steven R. Cavalli, Oakland, for Appellants Yvette Munoz et al.

Farmer, Murphy, Smith & Alliston, George E. Murphy, Suzanne M. Nicholson, Sacramento, Ferguson, Praet & Sherman, Bruce D. Praet, Santa Ana, for Respondents City of Union City et al.

KLINE, P.J.

This is the second appeal in a case arising from the death of Lucilla Amaya in an incident with the Union City police. In the initial trial, the jury found the City of Union City and Officer Tod Woodward liable for negligence and battery, apportioning the negligence 45 percent to the city, 50 percent to the officer, and 5 percent to Lucilla. On the prior appeal, we upheld the finding of liability against Woodward for unreasonable use of force and against the city under principles of vicarious liability. We reversed the portion of the jury's verdict against the city based on its direct negligence, however, and remanded with directions to the trial court to "enter a new judgment consistent with the jury's verdict against [the officer] and this opinion." The trial court held that the effect of our decision was to decrease by 45 percent the amount of plaintiffs' (Lucilla's family) recovery. Plaintiffs now contend the trial court erred in reducing the total amount of the judgment rather than apportioning a greater share of the liability to the officer. We agree and reverse the judgment.

STATEMENT OF THE CASE AND FACTS

In 1998, Lucilla Amaya was shot and killed by a Union City police officer who had been summoned to the house in which Lucilla, under the influence of methamphetamine and armed with two knives, was located with her daughter and father. The factual background is recited in great detail in our prior opinion, Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, 1083-1093, 16 Cal.Rptr.3d 521 (Munoz I), and need not be repeated at length here. In brief, Lucilla's brother called the police reporting that Lucilla was under the influence of something, had been "5150" in the past and was in possession of a knife, and that he was concerned she might harm herself or his father and niece. Tod Woodward, the officer in charge of the police response, tried to talk to and calm Lucilla, who was inside the house at a screen door and very agitated. Evidence of the precise events was disputed on many points, including when the police drew their guns, whether Woodward remained calm or became frustrated, and whether Lucilla made certain threats. Ultimately, when Lucilla made a movement that Woodward testified led him to believe she was going to kill her father and daughter, Woodward shot and killed Lucilla.

Plaintiffs' suit against Woodward and Union City went to the jury on theories of negligent and intentional wrongful death, infliction of emotional distress, negligent employment and failure to supervise and train employees, and respondeat superior. (Munoz I, supra, 120 Cal.App.4th at p. 1082, 16 Cal.Rptr.3d 521.) Plaintiffs claimed Woodward was negligent both because of the manner in which he supervised the police response and, separately, because he personally used deadly force against Lucilla. (Id. at p. 1094, 16' Cal. Rptr.3d 521.) The majority in our prior opinion found the trial court erred in submitting the former theory to the jury as the police could rot be held liable for negligence in their response to public safety emergencies. (Id. at pp. 1097-1098, 16 Cal.Rptr.3d 521; cf. Adams v. City of Fremont (1998) 68 (3al.App.4th 243, 80 Cal. Rptr.2d 196.) We affirmed the judgment against Woodward, however, because the jury's finding that Lucilla's death was caused by Woodward's battery — his unreasonable use of force — was a sufficient basis of liability. (Munoz I, at p. 1101, 16 Cal. Rptr.3d 521.)

Plaintiffs' case against Union City was based partly on the doctrine of vicarious liability, and, therefore, it was conceded that Union City was liable for the judgment against Woodward. (Munoz I, supra, 120 Cal.App.4th at p. 1110, 16 Cal. Rptr.3d 521.) Plaintiffs also sought to hold Union City liable for its own direct negligence in the selection, training, retention, supervision and discipline of police officers and in failing to promulgate procedures and policies to guide police response to critical incidents. (Id. at p. 1112, 16 Cal.Rptr.3d 521.) Based on Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 7 Cal.Rptr.3d 552, 80 P.3d 656 (Eastburn), we held the judgment against Union City based on its direct negligence could not be sustained because this theory of liability was not grounded upon a violation of a statutory duty by the public entity. (Munoz I., at p. 1082, 16 Cal.Rptr.3d 521.)

On remand to the trial court, plaintiffs argued that Munoz I removed Union City from the universe of tortfeasors because of its sovereign immunity, thereby requiring 100 percent of the fault to be allocated between Woodward and Lucilla. Plaintiffs asked the trial court to enter a new judgment based on either of two alternative theories. First, they argued Union City's liability should remain at 95 percent despite elimination of the direct liability theory, on the basis that liability cannot be apportioned between two theories attributable to a single defendant. Alternatively, they maintained Woodward should be held liable for 91 percent of the damages, on the theory that the resulting ratio — 91 percent to Woodward and nine percent to Lucilla — would maintain the jury's assessment of Woodward and Lucilla's relative fault (50 percent to five percent).

Union City opposed plaintiffs' motion for a new judgment, arguing that Munoz I simply called for entry of a judgment reducing the jury's verdict by the 45 percent liability the jury had assigned to Union City. Union City argued that allocating its 45 percent fault to Woodward would violate the statutory requirement of several rather than joint liability and that reapportionment of the liability would require a new trial.

The trial court issued a tentative ruling on December 10, 2004, finding that because Munoz I did not reduce plaintiffs' damages but did eliminate Union City as a tortfeasor, the damages should be apportioned five percent to "the plaintiff and 95 percent to Woodward. Union City contested this ruling and, after oral argument, the trial court entered its order decreasing the amount payable to plaintiffs by 45 percent. The revised judgment against Woodward for 50 percent of plaintiffs' damages was entered on March 7, 2005, and notice of entry of judgment was filed on March 11, 2005.

Plaintiffs filed a timely notice of appeal on April 27, 2005.

DISCUSSION

Prehminarily, Union City argues that plaintiffs are precluded from challenging the trial court's decision by the doctrine of invited error, in that they "invited" the outcome by pursuing a theory of direct liability against Union City. "The `doctrine of invited error' is an `application of the estoppel principle': `Where a party by his conduct induces the commission of error, he is estopped from asserting it as a ground for reversal' on appeal. (9 Witkin, Cal. Procedure [ (4th ed. 1997) ] Appeal, § 383, p. 434, italics omitted.) We said as much in Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 420-21, 185 Cal.Rptr. 654, 650 P.2d 1171. At bottom, the doctrine rests on the purpose of the principle, which is to prevent a party from misleading the trial court and then profiting therefrom in the appellate court. (See, e.g., People v. Upshaw (1974) 13 Cal.3d 29, 34, 117 Cal.Rptr. 668, 528 P.2d 756; Jentick v. Pacific Gas & Elec. Co. (1941) 18 Cal.2d 117, 121, 114 P.2d 343; see also 9 Witkin, Cal. Procedure (4th ed., [2006] supp.) Appeal, § 383, [pp. 112-113]; cf. Myers Building Industries, Ltd. v. Interface Technology, Inc. (1993) 13 Cal.App.4th 949, 960, fn. 8, 17 Cal.Rptr.2d 242 [speaking of a party misleading the jury].) In light of this principle, as we explained in Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 285 Cal.Rptr. 99, 814 P.2d 1341 . . ., the doctrine has not been extended to situations wherein a party may be deemed to have induced the commission of error, but did not in fact mislead the trial court in any way — as where a party `"`endeavors] to make the best of a bad situation for which [it] was not responsible.'"' (Id, at p. 213 [285 Cal.Rptr. 99, 814 P.2d 1341].)" (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403, 87 Cal.Rptr.2d 453, 981 P.2d 79.)

We do not find the invited error doctrine applicable here. At the jury trial, plaintiffs pursued theories of liability against Union City, which they continued to press on Union City's appeal of the judgment. After our decision in Munoz I reversed the judgment against Union City, plaintiffs addressed the effect of that decision by arguing for reallocation of the damages assessed by the jury. On the present appeal from the trial court's rejection of their theory of allocation, they again urge the same theory as they did in the trial court. The trial court's error in rejecting plaintiffs' requested reallocation was the result of its misapplication of Munoz I, not of any misleading conduct by plaintiffs.

Nor are we persuaded by Union City's argument that plaintiffs waived their reallocation argument by not presenting it on the first appeal, after this court raised the Eastburn issue. Plaintiffs argued against the result we reached in Munoz I as to Union City's liability for direct negligence; their position was that the judgment should be affirmed in its entirety. We are aware of no authority requiring the respondent on appeal to anticipate a ruling against it and raise arguments concerning the implementation of such a ruling.

Turning to the merits, plaintif...