Edson

Certified for Partial Publication. [*]

BEDSWORTH, Associate Justice.

This is an appeal from a defense verdict in a wrongful death action. The lawsuit arose from an incident in which Robert Edson was shot and killed when Anaheim Police Officer Smith, trying to arrest him, thought he was reaching for a gun.

Edson's widow and children (the Edsons) sued Smith and the City of Anaheim (City). [1] A jury found that Smith acted reasonably under the circumstances, and judgment was entered for defendants. The Edsons claim that a part of BAJI No. 2.60 on the burden of proof was given erroneously because the police had the burden of proving that the force used in making the arrest was reasonable. They further claim the judge erred in several evidentiary rulings and in allowing Smith a surrebuttal closing argument. We find, surprisingly, no California law concerning the burden of proof on the reasonableness of the officer's use of force, but conclude it was properly placed on the plaintiffs.

The Edsons checked into the Galaxy Motel in Anaheim on the night of February 2, 1989. Robert Edson left to buy shampoo for his wife, Debra. Sometime later, he was seen driving without taillights by an…