Thompson v. County of Los Angeles

• Decision Date: 22 August 2006
• Docket Number: No. B174594.,B174594.
• Citation: 142 Cal.App.4th 154,47 Cal.Rptr.3d 702
• Court: California Court of Appeals Court of Appeals
• Parties: Chad Allan THOMPSON, as Special Administrator, etc., Plaintiff and Appellant, v. COUNTY OF LOS ANGELES et al., Defendants and Respondents.

47 Cal.Rptr.3d 702

142 Cal.App.4th 154

Chad Allan THOMPSON, as Special Administrator, etc., Plaintiff and Appellant, v. COUNTY OF LOS ANGELES et al., Defendants and Respondents.

No. B174594.

Court of Appeal, Second District, Division 2.

August 22, 2006.

Robert Mann and Donald W. Cook for Plaintiff and Appellant.

Franscell, Strickland, Roberts & Lawrence, David D. Lawrence, Paul B. Beach, Orange, and Jin S. Choi, Glendale, for Defendants and Respondents.

DOI TODD, Acting P.J Plaintiff and appellant Chad Allan Thompson, as Special Administrator, etc.¹ appeals from a judgment in favor of defendants and respondents the County of Los Angeles (County), Jerry Harper, Edward Baker, Robert Devot and Daniel Burt following a jury trial on appellant's cause of action for liability under section 1983 of title 42 of the United States Code (section 1983). Appellant contends that the trial court improperly instructed the jury regarding the definition of deadly force, that it abused its discretion in excluding two reports concerning the conduct of the Los Angeles County Sheriff's Department and the use of dogs in law enforcement, and that it erred in dismissing his third cause of action for liability under Civil Code section 52.1, subdivision (b).

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant's Arrest and Injuries.

On February 8, 1991, appellant tried to steal two cars. The first attempt failed when the owner pulled the coil wire, killing the engine, and the second attempt failed when the owner telephoned for help. Shortly thereafter, Los Angeles County Sheriff's Deputy Patrick Cleary responded to an attempted robbery and car theft call at a 7-Eleven store in Downey. When he arrived at the store, he saw appellant run through a nearby alley and then climb over a block wall. Once Deputy Cleary had positioned himself at one end of the alley and some neighborhood youth at the other end to contain appellant, he called for backup.

Sheriff's Deputy Ken Lawrence, a dog handler, and Sergeant Robert Devot were among those who responded to Deputy Cleary's call. They learned that appellant was a carjacking suspect on parole and that he had a prior weapons-related offense, but they did not receive any information to establish that he was armed or had injured anyone at this particular time. The deputies announced via both car loudspeakers and a helicopter that a dog would be deployed. At that point, appellant was under a car in a carport, hiding from the police. Approximately 15 minutes after the announcement—and 30 to 40 minutes after appellant had climbed over the block wall—the deputies began using a search dog.

The dog made its way to the carport where appellant had been hiding for 30 minutes, and Deputy Lawrence deployed the dog into that area attached to a 60-foot leash. When the dog first barked at appellant, he did not move. A few moments later, appellant heard a voice, the dog stopped barking and lights shone on the carport area. Appellant heard a voice over a loudspeaker directing him to come out from under the car with his hands in the open. As he started to comply, the dog bit appellant's leg. Appellant screamed "get him off."

Meanwhile, Deputy Lawrence could not see the dog once it had entered the carport; he first saw it again when appellant, seated, was fighting with the dog-trying to pull the dog's muzzle off of his leg and punching the dog in the head. The dog continued to bite down on appellant's leg and also bit his hand when he tried to remove the dog by grabbing and pulling on its jaw. Both Deputy Lawrence and Sergeant Devot yelled at appellant to stop fighting the dog, but appellant continued to struggle with the dog, eventually grabbing and twisting its collar, choking the dog.

At that point, Deputy Lawrence began striking appellant with his flashlight, hitting appellant's left arm, shoulder and leg in order to stop him from fighting the dog. Sergeant Devot also used his flashlight to strike appellant once. When appellant still had not released the dog, Sergeant Devot grabbed appellant's arm while Deputy Lawrence grabbed the dog's collar and pulled the dog off. Deputy Lawrence kicked appellant's upper body while pulling the dog away and both he and Sergeant Devot were ultimately able to restrain appellant.

Sergeant Devot and Deputy Cleary then handcuffed appellant. Appellant lost consciousness intermittently, waking up at one point in a patrol car and at another point in an ambulance. He regained full consciousness at Los Angeles County U.S.C. Medical Center, where he remained for the next four days. He sustained a large laceration to his lower left leg and backside as a result of the dog bite, as well as dog bites on his hands. He also sustained a blunt force trauma to his lower right leg. After his release from the hospital, he was confined to the jail hospital for another month. He also suffered an infection that required daily care for several months. Longer term, appellant lost some control over his left foot, had significant tissue loss and suffered from prominent deformities and scar tissue that negatively affected his mobility.

Pleadings and Motions.

In January 1992, appellant filed a complaint against the County and numerous individuals, alleging violations of both federal and state law. In an unpublished decision filed in July 1995, we reversed summary judgment in favor of all defendants, with the exception of two causes of action that appellant had abandoned, finding that triable issues existed regarding the reasonableness of the officers' conduct and the adequacy of the officers' training.

In June 1997, appellant filed a first amended complaint against the County and Sheriff's Deputies Jerry Harper, Daniel Burt, Edward Baker, Robert Devot, Ken Lawrence, Patrick Cleary and James Ramsey, alleging four causes of action: (1) excessive force in violation of section 1983; (2) negligence; (3) violation of Civil Code section 52.1, subdivision (b); and (4) declaratory and injunctive relief.² In January 1999, we filed a second unpublished opinion reversing summary judgment in favor of three supervisory sheriff's department officials, in which we concluded that "[r]espondents' evidence did not establish as a matter of law that the training, supervision, and control of Lawrence and other dog handlers and deputies was reasonable, or, more pertinently, not conducted with deliberate indifference to the constitutional rights of arrestees."

Defendants thereafter demurred to the first amended complaint and moved for judgment on the pleadings. In February 2000, the trial court sustained the sheriff's department's demurrer without leave to amend and to the first and third causes of action, granted the County's motion for judgment on the pleadings as to the first cause of action, and granted the individual defendants' motion for judgment on the pleadings as to the third cause of action.

Pretrial Proceedings, Trial and Judgment.

Before trial, defendants moved in limine to exclude admission of a report known as the "Kolts Report" on several grounds, including that it was hearsay. The Kolts Report was the result of an investigation independent of this matter conducted by retired Judge James Kolts, who was retained by the County as special counsel to review and make recommendations as to "the policies, practices and procedures of the Sheriff's Department, including recruitment, training, job performance and evaluation, record keeping and management practices, as they relate to allegations of excessive force, the community sensitivity of deputies and the Department's citizen complaint procedure." Appellant opposed the motion, contending the report was admissible under an exception to the hearsay rule as an authorized admission of a party. At several different junctures in the proceedings, the trial court declined to admit the Kolts Report, finding appellant had not met his burden to show that it was an authorized admission.

Appellant also sought admission of what the parties refer to as the "Avila summaries," which were summaries of medical treatment provided to persons bitten by a sheriff's department dog used by a particular sheriff's deputy and prepared by the County in an unrelated case at the request of United States District Court Judge Matthew Byrne. Appellant contended that admission was authorized under Evidence Code section 1220 as an admission of a party opponent and Evidence Code section 1280 as a business record. The trial court disagreed, ruling that the Avila summaries did not fall within any exception to the hearsay rule and, in any event, that they were unduly prejudicial under Evidence Code section 352.

The trial court further refused to give an instruction premised on the Model Penal Code's (MPC) definition of deadly force, which includes "force which is reasonably capable of causing serious bodily injury...." Instead, the trial court instructed the jury on the use of excessive force, finding that the pertinent inquiry was whether the deputies' use of force was reasonable under the circumstances. Accordingly, it instructed the jury that "[f]orce is not excessive if it is reasonably necessary under the circumstances to make a lawful arrest" and that appellant had the burden to show that the sheriff's deputies used excessive force which was a substantial factor in causing him harm.

Trial commenced December 1, 2003 on the first phase on appellant's first cause of action for violation of section 1983 against four supervisory sheriff's deputies and his second cause of action for negligence against the same deputies and the County under the theory of respondeat superior. The jury was asked to determine whether appellant suffered a constitutional violation and whether excessive force was used under state law. The second and third phases would address supervisory liability and damages, respectively.

Before the matter was submitted to the jury, appellant dismissed his cause of...