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8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICKAIL MYLES, an individual, Case No. 15-cv-01985-JAH-BLM

12 Plaintiff, ORDER DENYING DEFENDANTS’

MOTION FOR A NEW TRIAL AND

13 v. DENYING MOTION FOR

JUDGMENT AS A MATTER OF

14 COUNTY OF SAN DIEGO, by and LAW [Doc. Nos. 447, 448] through the SAN DIEGO COUNTY 15 SHERIFF'S DEPARTMENT, a public entity; and DEPUTY J. BANKS, an 16 individual,

17 Defendants.

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19 Pending before the Court are Defendants’ motion for a new trial and 20 Defendants’ motion for judgment as a matter of law. Plaintiff filed oppositions to the 21 motions and Defendants filed replies. After a thorough review of the parties’ 22 submissions and for the reasons discussed below, the Court DENIES Defendants’ 23 motions. 24 I. Legal Standards 25 Pursuant to Rule 50 of the Federal Rules of Civil Procedure, a party may renew 26 a motion for judgment as a matter of law and “may include an alternative or joint 27 request for a new trial under Rule 59.” FED.R.CIV.P. 50(b). “In ruling on the renewed 1 (2) order a new trial; or (3) direct the entry of judgment as a matter of law.” Id. 2 Judgment as a matter of law is appropriate when “a party has been fully heard on an 3 issue during a jury trial and the court finds that a reasonable jury would not have a 4 legally sufficient evidentiary basis to find for the party on that issue.” FED.R.CIV.P. 5 50(a)(1). However, if substantial evidence supports the jury’s findings, the verdict 6 should be upheld “even if it is also possible to draw a contrary conclusion.” Pavao v. 7 Pagay, 307 F.3d 915, 918 (9th Cir. 2002). In entertaining a motion for judgment as 8 a matter of law, a court should review the evidence and “must draw all reasonable 9 inferences in favor of the nonmoving party, and it may not make credibility 10 determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Products, 11 Inc., 530 U.S. 133, 150 (2000). 12 A court may grant “a new trial on all or some of the issues--and to any party-- 13 after a jury trial for any reason for which a new trial has heretofore been granted in an 14 action at law in federal court.” FED. R. CIV. P. 59(a)(1)(A). Because Rule 59 does 15 not instruct on the grounds upon which a motion for a new trial may be granted, the 16 Court must look to the grounds historically recognized by the courts, including (1) the 17 verdict is contrary to the clear weight of the evidence and (2) the trial was unfair for 18 some other reason. Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007); 19 Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1035 (9th Cir. (200)); Roy v. 20 Volkswagen of America, 896 F.2d 1174, 1176 (9th Cir. 1990). 21 II. DISCUSSION 22 Defendants argue the jury’s findings on Plaintiff’s claims are not supported as 23 a matter of law and the award of damages was excessive. They also argue the clear 24 weight of the evidence is against the jury’s findings and, therefore, the Court should, 25 at least, grant them a new trial. 26 A. Jury’s Findings on Plaintiff’s Claims 27 1. Excessive Force by Defendant Banks 1 objectively reasonably under the totality of the circumstances based on the 2 information known to him at the time of his actions, and therefore, insufficient 3 evidence exists to support the jury’s contrary findings. Even if the Court determines 4 substantial evidence supports the jury’s findings, Defendants argue, they are entitled 5 to qualified immunity because Plaintiff failed to demonstrate a violation of a 6 constitutional right and that the constitutional right was clearly established at the time 7 of Defendants’ actions. 8 Defendants point to no evidence from the trial in support of their argument that 9 Defendant Banks acted reasonably under the circumstances. A review of the record 10 demonstrates evidence during trial, including the testimony of Plaintiff, other eye- 11 witness testimony and expert testimony, supports the jury’s finding that Deputy 12 Banks’ use of force was unreasonable under the circumstances. 13 Defendants argue, even if the Court finds substantial evidence exists, they are 14 entitled to qualified immunity. Under the doctrine of qualified immunity, officials 15 are protected from civil liability “so long as their conduct ‘does not violate clearly 16 established statutory or constitutional rights of which a reasonable person would have 17 known.’” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (quoting Pearson v. Callahan, 555 18 U.S. 223, 231 (2009)). The qualified immunity analysis is a two-prong test that 19 requires the Court to determine 1) whether the plaintiff’s alleged facts establish a 20 violation of a constitutional right, and 2) whether that right was clearly established at 21 the time of the defendant’s alleged misconduct. Frudden v. Pilling, 877 F.3d 821, 22 831 (9th Cir. 2017) (citing Pearson, 555 U.S. at 232). Both prongs must be satisfied 23 to overcome a qualified immunity defense. Shafer v. County of Santa Barbara, 868 24 F.3d 1110, 1115 (9th Cir. 2017). As discussed above the evidence demonstrates a 25 constitutional violation occurred, and as previously found in this case, the right was 26 clearly established at the time of Defendant Banks’ conduct. Accordingly, 27 Defendants are not entitled to qualified immunity. 1 2. Monell Claims 2 Defendants also argue they are entitled to judgment as to the Monell failure to 3 train and ratification claims because facts demonstrate no constitutional violation 4 occurred and without a predicate violation, there can be no Monell violation. As 5 discussed above, the evidence supports a constitutional violation. 6 Even if the Court finds a constitutional violation was shown, Defendants argue 7 Plaintiff presented insufficient evidence to demonstrate an unconstitutional pattern 8 and practice which would give rise to liability under Monell, and no evidence of 9 improper training or ratification. Plaintiff contends the evidence and reasonable 10 inferences therefrom support the jury’s finding that the County either ratified 11 Defendant Banks’ use of excessive force or had a policy or custom of permitting use 12 of force. 13 Plaintiff may establish liability against the County if he proved either 14 Defendant Banks committed the constitutional violation pursuant to a longstanding 15 practice or custom which constitutes the standard operating procedure of the local 16 government entity or (3) an official with final policy-making authority ratified 17 Defendant Banks’ unconstitutional action. Hopper v. City of Pasco, 241 F.3d 1067, 18 1083 (9th Cir. 2001). “The custom must be so ‘persistent and widespread’ that it 19 constitutes a ‘permanent and well settled city policy’” and founded upon practices of 20 sufficient duration, frequency and consistency that the conduct has become a 21 traditional method of carrying out policy. Trevino v. Gates, 99 F.3d 911, 918 (9th 22 Cir. 1996) (quoting Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 23 691 (1978)). The custom or practice must be the moving force behind the 24 constitutional violation. Id. at 694. 25 The jury heard testimony regarding the numerous incidents involving use of 26 force by Defendant Banks, that many of the incidents were not investigated or that 27 cursory investigations were conducted. Additionally, expert testimony explained that 1 uses of force sends a message that the use of excessive force is acceptable. Drawing 2 all reasonable inferences in favor of Plaintiff, the Court finds there is sufficient 3 evidence to support the jury’s determination the County is liable under Monell. 4 Furthermore, the verdict is not contrary to the clear weight of the evidence. 5 3. Negligence and Comparative Fault 6 Defendants contend the jury’s determination that Defendants were negligent 7 and Plaintiff bore zero responsibility is inconsistent with the evidence presented at 8 trial. They maintain there was no conduct on the part of Defendants that made the 9 use of force unreasonable and, therefore, they cannot be negligent as a matter of law. 10 Defendants also argue, Plaintiff bore some responsibility by failing to promptly 11 comply with Defendants’ lawful orders and instructions. 12 Plaintiff argues the evidence that establishes the use of force was excessive 13 necessarily demonstrates Defendant Banks’ action constituted an act of negligence. 14 He also argues in addition to evidence demonstrating the force was excessive, there 15 was evidence that Plaintiff was fully in the custody and control of the law enforcement 16 officers when the force was used. 17 As discussed above there was sufficient evidence at trial to support the jury’s 18 finding that the force used against Plaintiff was unreasonable. Moreover, Plaintiff 19 testified that he was unable to hear the commands while the dog was barking and that 20 the commands were coming from multiple officers and those he heard were 21 conflicting. Additionally, there was testimony that Plaintiff was being held by the 22 officers when Defendant Banks punched him in head and he was bitten. The Court 23 finds there is sufficient evidence supporting the jury’s finding that Plaintiff bore no 24 fault for his injuries. In addition, the finding is not contrary to the weight of the 25 evidence. 26 B. Jury Award 27 Defendants argue the award of $5,000,000 is untethered to reality, unsupported 1 or, at a minimum, remittitur. Defendants maintain the evidence does not support the 2 jury’s finding that Plaintiff suffered $800,000 in past non-economic damages or that 3 he will experience an additional $4,200,000 in non-economic damages and the 4 amount awarded demonstrates the jury acted out of passion, prejudice, and an intent 5 to punish. In support, Defendants point to Plaintiff’s medical records which 6 demonstrate Plaintiff suffered an atraumatic head injury and three lacerations on his 7 chest, that he experienced no loss of consciousness and Dr. Dean Delis, medical 8 expert, opined that Plaintiff suffered, at most, a Grade 1 concussion. Additionally, 9 they contend Plaintiff himself testified that he refused medical assistance, he did not 10 report any head trauma when he was first examined and he has not felt any physical 11 pain in years. They further contend Plaintiff had only a single appointment for 12 psychiatric treatment and made no attempt to mitigate any psychological injuries. 13 Plaintiff argues Defendants ignore evidence detailing the trauma, humiliation, 14 and anxiety he endured as a result of the event. He points to his testimony regarding 15 the details of the encounter and how he was placed in the patrol car by Defendant 16 Banks who told Plaintiff the incident would not have happened had Plaintiff not been 17 a “retard” and listened to Banks’ orders and that the physician stated “look what the 18 dog drug in” when he arrived at the hospital. He also maintains he testified that his 19 scar is a constant reminder of the event and that he fears for his sons and that he is 20 unable to protect them from similar harm. Plaintiff also discusses the testimony of 21 his family members regarding his behavior after the incident which included 22 testimony that he withdrew and did not participate in family events. Additionally, 23 Plaintiff contends Dr. Monte Buchsbaum testified that Plaintiff suffered from 24 traumatic brain injury, PTSD, depression and anxiety and opined that Plaintiff will 25 suffer from depression, anxiety and PTSD for the rest of his life. Plaintiff argues the 26 jury was properly instructed to base its verdict on the evidence and law presented and 27 not be influenced by sympathy, prejudice, public opinion or biases. 1 be upheld unless it is “grossly excessive or monstrous, clearly not supported by the 2 evidence, or based only on speculation or guesswork.” Del Monte Dunes at Monterey, 3 Ltd. v. City of Monterey, 95 F.3d 1422, 1435 (9th Cir. 1996); see also Harper v. City 4 of Los Angeles, 533 F.3d 1010, 1028 (9th Cir. 2008). “Compensatory damages may 5 be awarded for humiliation and emotional distress established by testimony or 6 inferred from the circumstances, whether or not plaintiffs submit evidence of 7 economic loss or mental or physical symptoms.” Tortu v. Las Vegas Metro. Police 8 Dep’t, 556 F.3d 1075, 1086 (9th Cir. 2009) (quoting Johnson v. Hale, 13 F.3d 1351, 9 1352 (9th Cir.1994)). Emotional damages awards need not be supported by objective 10 evidence and may be based solely on testimony. Passantino v. Johnson & Johnson 11 Consumer Products, Inc., 212 F.3d 493, 513 (9th Cir. 2000). 12 The jury found Defendant Banks used unreasonable force against Plaintiff. 13 Expert testimony and other evidence at trial demonstrated the extent of physical, 14 mental and emotional trauma Plaintiff suffered as a result of the unreasonable force, 15 including traumatic brain injury, PTSD, depression and anxiety. See TR 1888-93, 16 1903-07; 2178-85, 2187-90, 2213-2214, 2216, 2225-26, 2228-29; 2618-24, 2628-35, 17 2641-1259, 2661-66, 2671, 2673, 2679. Additionally, Plaintiff, his wife, brother and 18 father all testified about the fear and anxiety Plaintiff demonstrated after the incident 19 when he encountered police and the detrimental effect on Plaintiff’s interactions with 20 his family members including his children and specifically feeling powerless to 21 protect his children from similar harm. TR 1101, 1108-14; 1212-14, 1219, 1237-42, 22 1244-45; 2460-65, 2467, 2470-75; 4070-71, 4076-80, 4082-87, 4090-93, 4099-4105, 23 4107-16, 4119-24. Plaintiff’s father also testified regarding Plaintiff’s anxiety and 24 belief he was under surveillance while at home and Plaintiff also testified that his fear 25 the police were following him was heightened when he learned Defendants surveilled 26 him during the pendency of the action. TR 1238, 4107-10. 27 The Court finds there was significant evidence presented at trial of Plaintiff’s 1 suffered as a result of Defendants’ conduct. The evidence and testimony sufficiently 2 demonstrates the jury award was not based upon speculation or guesswork or a result 3 of passion or prejudice. The Court further finds the amount is not so grossly excessive 4 as to warrant a new trial or be reduced by way of remittitur. Accordingly, Defendants’ 5 motion is DENIED. 6 C. Revival of the Monell Claim 7 Defendants argue this Court’s revival of Plaintiff’s claim under Monell without 8 providing Defendants an opportunity to prepare, imposing expert sanctions and 9 denying their motion to bifurcate deprived them of due process and warrants a new 10 trial. Defendants argue reinstatement of the Monell claim and related orders changed 11 the course of the trial and denied Defendant a meaningful opportunity to address the 12 reinstated claim. “Sanctions interfering with a litigant’s claim or defenses violate due 13 process when imposed merely for punishment of an infraction that did not threaten to 14 interfere with the rightful decision of the case.” Wyle v. R.J. Reynolds Indus., Inc., 15 709 F.2d 585, 591 (9th Cir. 1983) (citing G-K Properties v. Redevelopment Agency, 16 577 F.2d 645, 648 (9th Cir.1978)). 17 This Court reinstated the Monell claim and made other related orders including 18 prohibiting Defendant from rebutting any supplemental report prepared by Plaintiff’s 19 expert as a sanction for Defendants’ failure to propound requested discovery and 20 failure to provide accurate privilege logs pursuant to Federal Rule of Civil Procedure 21 37(b). The Court found Defendant’s conduct interfered with Plaintiff’s ability to 22 prove his claims. Specifically, Defendants’ discovery abuses significantly impaired 23 Plaintiff’s efforts to adequately defend against Defendants’ dispositive motions and 24 to prepare for trial resulting in substantial prejudice to Plaintiff, including dismissal 25 of the Monell claim and an inability to timely locate relevant evidence. As such, the 26 reinstatement of the Monell claim and related orders was directly related to 27 Defendants’ improper conduct. 1 || verdict against the County of San Diego upon finding the less drastic sanctions 2 || appropriate. Additionally, the Court, after reconsidering, continued the trial date over 3 || Plaintiff's objection to permit the Defendants an opportunity to prepare its defense 4 || against the Monell claim. 5 This Court’s issuance of sanctions did not deprive Defendants’ due process and, 6 || therefore, a new trial is not warranted. 7 CONCLUSION AND ORDER 8 Based on the foregoing, IT IS HEREBY ORDERED: 9 l. Defendants’ motion for judgment is DENIED; 10 2. Defendants’ motion for a new trial is DENIED; 11 3. Defendants shall file a response to the motion for attorney fees and costs 12 || on or before May 15, 2023; 13 4. Plaintiff may file a reply in support of his motion on or before May 24, 14 || 2023; 15 5. The motion will be deemed under submission at that time unless 16 || otherwise ordered by the Court. DATED: May 4, 2023 18 19 TH HON. JOHN A. HOUSTON 20 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28