J. N. v. Heather M. Hendrickson et al

Filing 167

ORDER GRANTING DEFENDANT HEATHER M HENDRICKSON'S MOTION FOR REMITTITUR 149 by Judge Dean D. Pregerson: The award of damages is remitted from $5,000,000 to $3,000,000. Plaintiff shall have ten days from the date of this Order to acce pt or reject the remittitur. Should Plaintiff accept, a final judgment shall issue. Should Plaintiff reject the remittitur, the Court shall grant Defendants' Motion for a New Trial in the Alternative on the issue of damages only. (lc). Modified on 6/12/201.7 (lc).

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O 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 J.N., 13 Plaintiff, 14 15 16 17 v. DET. HEATHER M. HENDRICKSON, et al., 18 Defendants. 19 ) ) ) ) ) ) ) ) ) ) ) Case No. 2-14-cv-02428-DDP (PLAx) ORDER GRANTING DEFENDANTS’ MOTION FOR REMITTITUR [Dkt. 149] 20 21 Presently before the Court is Defendant Heather M. Hendrickson’s Motion for 22 New Trial, or, in the Alternative, Request for Remittitur. After reviewing the parties’ 23 submissions and hearing oral argument, the Court adopts the following Order. 24 I. BACKGROUND 25 Plaintiff J.N. filed the instant action pursuant to 42 U.S.C. § 1983 alleging 26 violations of his Fourth and Fourteenth Amendment Rights on the basis of judicial 27 deception and malicious prosecution by Defendant Det. Heather Hendrickson. (See Third 28 Amended Complaint.) The facts, as presented at trial, are as follows. 1 In late March 2011, the Sacramento Police Department received a report from 2 Nicole W. that her 12-year-old daughter, K.W., had been the victim of internet sex crimes. 3 During the preceding months, K.W. had been contacted on Facebook by a man with the 4 name “Pater Noster.” Pater Noster spoke to K.W. through text and video chats. During 5 these conversations, Pater Noster victimized K.W. by exposing himself, performing lewd 6 acts while she was on a video chat, and encouraging her to undress for him on video. 7 On approximately March 31, 2011, Det. Hendrickson was assigned to the case by 8 the Sacramento Police Department. Det. Hendrickson began her investigation by 9 searching for the name “Pater Noster” in a California mugshot database. Det. 10 Hendrickson got one result from her search: a man named John Noster who had, at 11 times, gone by the alias “John Pater.” Based on this result, Det. Hendrickson prepared a 12 “six-pack”—an array of six photographs, which included John Noster’s photograph at 13 position number three. Det. Hendrickson then conducted a video-recorded interview of 14 K.W. During the interview, Det. Hendrickson asked K.W. about her encounters with 15 Pater Noster. Det. Hendrickson then delivered a series of admonishments and proceeded 16 to show K.W. the six-pack. Specifically, Det. Hendrickson said, “I think we found a 17 picture of the guy who we think might be the person . . . I want to show it to you and see 18 if it is, okay?” She followed up by noting, “If the person that you saw is not in that series 19 of photographs, then tell me, okay . . . We don’t want to be going after the wrong guy. So 20 if he’s in there, excellent. If he’s not, we need to know that too.” K.W. proceeded to look 21 at the photographs. She pointed at one picture and said, “He’s too dark.” K.W. then 22 pointed at photograph number 3 (John Noster’s photograph) and said, “He is too skinny, 23 the guy I saw was much chunkier.” After a few seconds, K.W. returned to photograph 24 number 3 and said, “That kind of looks like him. . . . The rest of them don’t even look 25 close to him.” Based on this statement, Det. Hendrickson directed K.W. to circle 26 photograph number 3. 27 28 After this interview, Det. Hendrickson spoke with an agent from Federal Bureau of Investigation, Special Agent Schofield. According Schofield, who testified at trial, Det. 2 1 Hendrickson discussed Pater Noster’s activities with the FBI and was told that the FBI 2 would issue a subpoena to Facebook for Pater Noster’s account information. At trial, Det. 3 Hendrickson stated that she did not follow up with the FBI for the results of the 4 subpoena and was not aware until approximately January or February 2012 that the 5 subpoena results indicated that Pater Noster had logged into Facebook from a computer 6 with an IP address originating in Vienna, Austria. 7 Over the next few months, Det. Hendrickson continued the investigation by 8 communicating with Pater Noster over Facebook using K.W.’s computer and account. 9 She also reached out to the Los Angeles Police Department for assistance because her 10 primary suspect, John Noster, lived in the Los Angeles area. In August 2011, Det. 11 Hendrickson received word that the Los Angeles Police Department was prepared to 12 assist in the case. Det. Hendrickson prepared a search and arrest warrant for John Noster, 13 which she then presented to a judge. According to Plaintiff, the report Det. Hendrickson 14 attached to the warrant application contained a number of inaccuracies and gave rise to 15 his claims for judicial deception and malicious prosecution. First, the report omitted the 16 fact that Det. Hendrickson may have tainted the six-pack identification by indicating to 17 K.W. that she thought she “found a picture of the guy” before showing the photo array. 18 Second, the report did not accurately reflect K.W.’s remarks during the photo 19 identification. During the interview, K.W. affirmatively states that the man depicted in 20 photograph number 3 “is too skinny” and only later says that “[he] kind of looks like 21 him.” By contrast, the report states that “Victim W. stated that # 3 (Suspect Noster) 22 looked like the person she knew as “Pater.” Third, Plaintiff argued that the report 23 confusingly switched between the names “Pater Noster” and “Suspect Noster” in a 24 manner that indicated Det. Hendrickson had actually communicated with John Noster 25 (Suspect Noster) on Facebook rather than a man who used the name “Pater Noster” 26 online. Fourth, the report did not indicate that Det. Hendrickson requested an IP lookup 27 or report the results of the IP search, which would have shown that Pater Noster’s 28 computer IP address originated in Austria. 3 The warrant was approved and, on August 17, 2011, Det. Hendrickson and LAPD 1 2 executed the warrant and arrested Plaintiff while he was waiting outside his apartment 3 for the bus to work. Plaintiff testified that he was confused and fearful during his arrest. 4 Plaintiff remained in detention for approximately eight months. At his initial booking, 5 Plaintiff recalls a person calling out to another officer that he was accused of raping a 6 young child and that they should “beat the shit out of him.” While detained, Plaintiff was 7 held in protective custody because of his status as a suspected sex crime offender. During 8 his time in jail, Plaintiff reported being assaulted by fellow inmates on four occasions 9 because of the crimes he was accused of committing. While Plaintiff remained in custody, additional developments occurred in the 10 11 case. In September 2011, a district attorney working on the case reached out to Det. 12 Hendrickson to inquire about the strength of the case, noting there was reason to think 13 this might be the wrong person. In October 2011, Det. Hendrickson learned that the 14 computers seized from Plaintiff’s home contained no evidence indicating he was Pater 15 Noster. In December 2011, Plaintiff’s defense counsel informed the district attorney’s 16 office that he had confirmed “Pater Noster” was still active on Facebook. During this 17 time, the district attorney assigned to the case reached out to Det. Hendrickson indicating 18 concerns about the strength of the case and requesting further updates but received no 19 response. In January 2012, Plaintiff’s defense counsel was able to view the recorded 20 interview of K.W. for the first time. He shared that video with the district attorney, raised 21 concerns about the tainted identification, and asked for the charges to be dropped. In 22 early February 2012, a live lineup was conducted. but K.W. was unable to identify 23 Plaintiff at the lineup. On February 15, 2012, the District Attorney dismissed the case for 24 insufficient evidence. Due to Plaintiff’s prior convictions, none of which were for sex 25 crimes, he was transferred to federal custody and not actually released until April 3, 26 2012. 27 During trial, defense counsel acknowledged a number of the key facts and that 28 “mistakes were made” during the investigation. Nonetheless, counsel urged a defense 4 1 verdict on the ground that the negligence in this case did not rise to the level of judicial 2 deception or malicious prosecution. After a four-day trial, the jury returned a verdict 3 finding Det. Hendrickson liable on both causes of action. The jury awarded $5,000,000 in 4 compensatory damages and $5,000 in punitive damages. (Dkts. 136, 138.) Judgment was 5 entered on March 28, 2017. (Dkt. 143.) 6 Defendant now moves for an order granting a new trial or, in the alternative, a 7 remittitur of the jury’s award for damages. 8 II. LEGAL STANDARD 9 Federal Rule of Civil Procedure 59 governs motions for a new trial. Pursuant to 10 Rule 59(a)(1), “[t]he court may, on motion, grant a new trial on all or some of the issues 11 . . . after a jury trial, for any reason for which a new trial has heretofore been granted in 12 an action at law in federal court.” Fed. R. Civ. P. 59(a)(1)(A). Although Rule 59 does not 13 enumerate specific grounds for a new trial, the Ninth Circuit has held that “‘the trial 14 court may grant a new trial only if the verdict is contrary to the clear weight of the 15 evidence, is based upon false or perjurious evidence, or to prevent a miscarriage of 16 justice.’” Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) (quoting Passantino v. 17 Johnson & Johnson Consumer Prods., 212 F.3d 493, 510 n.15 (9th Cir. 2000)) (brackets 18 omitted). A miscarriage of justice can occur where there is prejudicial misconduct from 19 opposing counsel or where legal error was unduly prejudicial to the opposing party. A 20 district court “enjoys considerable discretion in granting or denying the motion.” 21 Jorgensen v. Cassiday, 320 F.3d 906, 918 (9th Cir. 2003). 22 When the movant claims that a verdict was against the clear weight of the 23 evidence at trial, a new trial should be granted “[i]f, having given full respect to the jury’s 24 findings, the judge . . . is left with the definite and firm conviction that a mistake has been 25 committed.” Landes Const. Co., Inc. v. Royal Bank of Can., 833 F.2d 1365, 1371-72 (9th Cir. 26 1987). A “jury’s verdict must be upheld if it is supported by substantial evidence, which 27 is evidence adequate to support the jury’s conclusion, even if it is also possible to draw a 28 contrary conclusion.” Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002). 5 1 When a court determines that a damages award is excessive, it may grant a 2 defendant’s motion for a new trial or conditionally deny the motion, provided the 3 plaintiff accepts a remittitur. Fenner v. Dependable Trucking Co., Inc., 716 F.2d 598, 603 (9th 4 Cir. 1983); Fed. R. Civ. P. 59(a)(1)(A). The remittitur, or reduced damage award, “must 5 reflect the maximum amount sustainable by the proof.” Oracle Corp. v. SAP AG, 765 F.3d 6 1081. 1094 (9th Cir. 2014) (internal quotation and citation omitted). The plaintiff may 7 choose either to accept the reduced damage award or to submit to a new trial. Fenner, 716 8 F.2d at 603. 9 III. DISCUSSION 10 Defendant’s Motion presents three grounds for ordering a new trial or, in the 11 alternative, granting a remittitur. First, Defendant argues that the jury’s award of $5 12 million in compensatory damages was excessive and against the weight of the evidence. 13 (Mot. 3.) Next, Defendant argues that the Court’s examination of Det. Hendrickson was 14 highly prejudicial. (Id.) Finally, Defendant contends that the Court erroneously 15 “precluded after-acquired incriminating evidence” despite allowing “after-acquired 16 exculpatory evidence.”(Id.) In her reply brief, Defendant only addresses the argument 17 that the jury verdict was excessive. Although Defendant may have abandoned the 18 remaining two issues, the court nonetheless addresses them out of an abundance of 19 caution before turning to whether the evidence supported the compensatory damage 20 award. 21 A. Grounds for New Trial 22 The Court begins with Defendant’s contention that Det. Hendrickson was asked 23 questions by the Court on two occasions in a “highly prejudicial” manner. The first was 24 regarding Det. Hendrickson’s testimony about admonitions she delivered to K.W. prior 25 to showing the six-pack and the second was regarding the fact that the investigative files 26 in this case were thrown away after Det. Hendrickson was reassigned from the case. 27 28 Federal Rule of Evidence 614 provides district courts broad discretion to question witnesses. See Fed. R. Evid. 614. The Ninth Circuit has explained, “It is entirely proper for 6 1 [the trial judge] to participate in the examination of witnesses for the purpose of 2 clarifying the evidence, confining counsel to evidentiary rulings, controlling the orderly 3 presentation of the evidence, and preventing undue repetition of testimony[.]” Swinton v. 4 Potomac Corp., 270 F.3d 794, 808 (9th Cir.2001) (internal quotation marks and citation 5 omitted). A judge, however, “must not adopt a partisan stance.” United States v. Medina- 6 Verdugo, 637 F.2d 649, 653 (9th Cir. 1980). FRE 614(c) provides that “[a] party may object 7 to the court’s . . . examining a witness either at that time or at the next opportunity when 8 the jury is not present.” Fed. R. Evid. 614(c). 9 Plaintiff contends Defendant is barred from objecting to the Court’s examination 10 of Det. Hendrickson because of the failure to object either at the time of the questioning 11 or the “next opportunity when the jury is not present.” (See Opp’n 20.) Although neither 12 side has identified Ninth Circuit authority on the consequences of failing to timely raise a 13 FRE 614 objection, other courts of appeals have held that such a failure precludes later 14 review. See Stillman v. Norfolk & W. Ry. Co., 811 F.2d 834, 839 (4th Cir. 1987) (“If a party 15 fails to object to the court’s interrogation of a witness at trial, his objection will not be 16 reviewed on appeal.”); See United States v. Vega, 589 F.2d 1147, 1152-53 (2d Cir. 1978) 17 (same); Faudree v. Iron City Sand & Gravel Co., 315 F.2d 647, 651–52 (3d Cir. 1963); Vergott 18 v. Deseret Pharmaceutical Co., 463 F.2d 12, 17 (5th Cir. 1972); see also Hanson v. Waller, 888 19 F.2d 806, 813 (11th Cir. 1989) (holding that failure to timely object is deemed waiver 20 unless the examination constitutes plain error); United States v. Hickman, 592 F.2d 931, 936 21 (6th Cir. 1979) (subjecting court’s questioning to plain error review despite counsel’s 22 failure to timely object). In light of Defendant’s failure to object at any point during the 23 trial, the court deems the objection waived and concludes that it does not justify ordering 24 a new trial. 25 Assuming, however, that the failure to object is excusable, the court would 26 nonetheless find the argument unavailing on the merits. First, while the court recognizes 27 that Defendant had to prepare the instant motion without the benefit of the transcript, a 28 review of the relevant excerpts demonstrates that the Motion does not accurately 7 1 represent the exchanges at issue. According to the Motion, when Det. Hendrickson 2 testified that she told K.W. “if you see him (Pater Noster) here, great, if not, we need to 3 know that too,” the Court purportedly responded by “incredulously ask[ing] Detective 4 Hendrickson, ‘why would you say that?’” (Mot. 9.) The Motion goes on to contend that 5 “the tone and disgust” of the Court’s questioning made it “abundantly clear” to the jury 6 that the Court felt Det. Hendrickson’s comment was inappropriate. (Id.) The transcript, 7 however, reflects a different exchange. The excerpt begins with Det. Hendrickson 8 testifying that she told K.W., “If he’s in here, excellent. If he’s not, we need to know that 9 too so we don’t head in the wrong direction.” (Dkt. 160 (Reporter’s Transcript (“RT”) 10 Day 2 at 33:2-4.). After that answer, the Court asked: “What does that mean ‘if he’s in 11 here, excellent’? What are you communicating to the child at that point, ‘If he’s in here, 12 excellent’?” (Id. at 33:5-7.) Det. Hendrickson answered that she “was trying to put it in – 13 in words that a 12-year-old would understand.” (Id. at 33:8-9.) The Court responded 14 “Okay.” (Id. at 33:11.) Det. Hendrickson then followed up with additional clarification 15 and the Court said, “Thank you.” (Id. at 33:12-18.) 16 The second occasion raised by the motion was Det. Hendrickson’s testimony that 17 her investigative files were thrown away after she was reassigned from detective to 18 patrol officer during the investigation. (Id.) The Motion asserts that the Court “reacted 19 with astonishment” and repeated the answer given by Det. Henderson, stating “Thrown 20 in the garbage?! Why?!” (Id.) The Motion argues that this reaction indicated to the jury 21 that the Court did not approve of Det. Hendrickson’s conduct. As with the previous 22 exchange, the transcript differs. After testifying that her files were thrown away and 23 identifying the officer that threw away the investigate materials, the Court asked, “Just so 24 I’m clear . . . So the plaintiff’s in custody and someone throws away the investigative 25 file?” (Id. at 13:13-15.) Defendant explained that the Court’s understanding was correct 26 and that she was not there at the time. (Id. at 13:16-22.) The Court responded, “Thank 27 you.” (Id.) 28 8 1 Contrary to Defendant’s assertion that the Court’s questioning suggested it had an 2 opinion about Det. Hendrickson’s conduct, the transcript reflects a neutral exchange with 3 two instances of the court asking Det. Hendrickson follow-up questions. Moreover, in 4 light of the overall evidence presented in this case, including Defendant’s own 5 acknowledgment that mistakes were made during the investigation, the court finds it 6 unlikely that these two questions had any discernible impact on the jury’s 7 determinations. Of course, in addition to the specific language, Defendant also takes 8 issue with the tone. So as to clarify the issue of tone, the court played recordings of the 9 relevant exchanges in open court during the hearing. While Defendant’s counsel did not 10 reiterate the position articulated in the motion that the questions reflected a “tone of 11 disgust,” he did suggest that it sounded like the Court had an “opinion” on the matters 12 at hand. While the question of tone is a subtle one, the Court’s understanding is that 13 these questions were asked in a neutral and measured manner. At a minimum, it does 14 not reflect the exclamations ascribed to the Court in Defendant’s brief. To the extent that 15 the jury may have inferred anything from the Court’s questioning or tone, the Court’s 16 first jury instruction included an admonition to “not read into . . . anything that I may say 17 or do or have said or done that I have an opinion regarding the evidence or what your 18 verdict should be.” (Dkt. 125 at 2.) Ultimately, even if the Court were to find that 19 Defendant had adequately demonstrated that the questions asked of Det. Hendrickson 20 belied an “opinion,” these two exchanges would not reflect a “pervasive climate of 21 partiality or unfairness” or “extremely high level of interference” so as to justify a new 22 trial. U.S. v. DeLuca, 692 F.2d 1277, 1282 (9th Cir. 1982). 23 Defendant’s second ground for seeking a new trial is that the court erroneously 24 precluded “after-acquired incriminating evidence” despite allowing “after-acquired 25 exculpatory evidence.” (Mot. 9.) Although Defendant does not precisely state what she 26 means by “after-acquired exculpatory evidence,” it seems to be the results of the FBI 27 subpoena indicating that Pater Noster’s computer IP address originated in Austria and 28 the fact that K.W. failed to make a positive identification at the February 2012 live lineup. 9 1 Notably, Defendant is not challenging the admissibility of this evidence but only arguing 2 that she should have been allowed to present her own evidence acquired after the 3 preparation of the warrant application indicating Plaintiff’s guilt. This argument 4 misunderstands why the IP information and lineup evidence were admissible. The IP 5 information was data available to Defendant at the time she prepared the warrant 6 affidavit and report. It is relevant to Plaintiff’s case not because it indicates Plaintiff’s 7 innocence but because it demonstrates that Plaintiff failed to properly investigate the case 8 before making representations to a judicial officer in the warrant application. Likewise, 9 the evidence regarding K.W.’s inability to identify Plaintiff at the live lineup provides 10 context for why the charges were ultimately dismissed and clarifies that Plaintiff’s release 11 was not due to any additional investigation on the part of Defendant. This evidence was 12 not admitted to show Plaintiff’s innocence but rather because they were probative of 13 whether Defendant engaged in judicial deception and malicious prosecution. 14 Nonetheless, Defendant argues that she should have been allowed to contest the 15 implication of Plaintiff’s innocence by introducing evidence that Plaintiff was guilty. 16 Specifically, Defendant sought to introduce evidence that K.W. failed to make a positive 17 identification of Plaintiff during the live lineup because she did not understand that she 18 was viewing suspects through a one-way glass. As a result, K.W. became scared and was 19 unable to say anything at all. Defendant also sought to introduce evidence from K.W. 20 and her mother’s deposition, taken years later, that they would have been able to identify 21 Plaintiff as Pater Noster. Beginning with K.W.’s reasons for failing to make an 22 identification at the live lineup, the Court notes that the rulings on the motions in limine 23 did not actually preclude this particular testimony. During a pre-trial hearing concerning 24 motions in limine, the Court indicated that its tentative ruling was to grant Plaintiff’s 25 Motions in Limine Nos. 2 and 6, which sought to preclude the presentation of a case that 26 resolved around actual guilt or innocence of Plaintiff. Specifically, Plaintiff sought to 27 exclude testimony from K.W. and Nicole W. that, in the present day, they believed that 28 the photos they saw in 2011 were of Plaintiff. These motions did not address whether 10 1 Defendant should be permitted to provide additional context for what transpired at the 2 live lineup in February 2012. Moreover, even though Plaintiff’s counsel examined both 3 Det. Hendrickson and Plaintiff’s defense counsel regarding the way the live lineup was 4 conducted, Defendant’s counsel never attempted to cross-examine either witness about 5 whether any additional details would explain K.W.’s inability to make a positive 6 identification. Nor did counsel request a sidebar to clarify whether the motions in limine 7 would cover this line of questioning. Accordingly, Defendant cannot now seek a new 8 trial on the basis of this unpursued line of questioning. 9 Turning to the deposition testimony, the Court disallowed this evidence as both 10 irrelevant and highly prejudicial. The Court found that the evidence was irrelevant 11 because the question in this case is not whether K.W. could have identified Plaintiff as 12 Pater Noster at her March 2011 interview. Rather, it was whether Det. Hendrickson acted 13 improperly in how she represented K.W.’s remarks in the report attached to the warrant 14 application. Either the statements made in the report were an accurate reflection of her 15 interview with K.W., and thus not instances of judicial deception, or they were 16 misrepresentations. The fact that K.W. and her mother may purportedly believe today 17 that they can identify Plaintiff as Pater Noster does not change what information was 18 available to Det. Hendrickson when she prepared the warrant application or how she 19 chose to represent that information to a judicial officer. The reliance on this evidence also 20 belies the fact that the credibility of any such identification would be called into question 21 given the initial flawed identification and the fact that the jury heard testimony that Pater 22 Noster’s Facebook account was active while Plaintiff was in custody. (RT Day 2 at 118:16- 23 120:1.) Finally, the Court determined that it would be more prejudicial than probative to 24 have a victim of a heinous crime testify in court that she believed Plaintiff was guilty 25 given that this present-day certainty could not have been a justification for Det. 26 Hendrickson’s conduct several years prior. 27 28 11 1 B. Damages Verdict 2 Having determined that there is no basis for setting aside the jury’s liability 3 determination, the Court turns to Defendant’s contention that the jury verdict for $5 4 million in compensatory damages cannot be supported by the evidence. Defendant 5 begins by arguing that evidence presented by Plaintiff cannot support a jury verdict for 6 any economic losses and, thus, the jury’s verdict should properly be viewed as 7 compensating only “general, non-economic, and emotional distress damages.” (Mot. 6.) 8 As Defendant accurately notes, although Plaintiff testified about certain economic losses, 9 there was no specific testimony or evidence about the value of these losses, and, thus, no 10 basis for the jury to award economic damages. For example, Plaintiff testified that he lost 11 his job working at warehouse after his arrest but provided no testimony or evidence 12 about how much he made at his job or how long it took him to find a new job after his 13 release. (See RT Day 2 at 131:9-15; id. at 136:10-14.) Likewise, Plaintiff testified that he lost 14 his apartment and some possessions as a result of the arrest, but provided no valuation of 15 what the loss of his apartment might have cost or what specific possessions he lost. (See 16 id. at 136:7-9; id. at 136:15-19.) Given that the jury had no basis for valuing these potential 17 economic losses, awarding any economic damages would be pure speculation. 1 18 Accordingly, the court is left to determine whether the evidence can support general, 19 non-economic damages for $5 million. Defendant also contends that $5 million verdict is so disproportionate to Plaintiffs’ 20 21 asserted injuries that the jury must have included some element of punitive damages 22 when setting the compensatory damage award. This speculation about the jury’s 23 motivation, however, is unwarranted. As reflected in Jury Note 5, the jury was aware of 24 25 26 27 28 The court also notes that the operative Complaint requested only general damages and “special damages for legal, medical and related expense, according to proof” but no special damages for lost earning or other economic losses. (See Dkt. 29 at 47.) Cf. Noga v. Potenza, 221 F. Supp. 2d 345, 357 (N.D.N.Y. 2002) (limiting awardable damages to general damages in request for remittitur where complaint lacked any claim for lost wages or other economic losses). 12 1 1 the distinction between compensatory and punitive damages and, indeed, it expressly 2 asked when it should calculate the latter. (Dkt. 135.) The jury was instructed that, if there 3 was a finding of liability, there would be an additional punitive damages phase of the 4 trial. In accordance with that instruction, and the recommendation of both counsel, the 5 jury returned a punitive damage verdict of $5,000 after the completion of the second 6 phase of the trial. There is no reason for concluding that, despite expressly being 7 instructed that there would be a punitive damages phase, the jury included a punitive 8 element in the compensatory damages in addition to awarding punitive damages. 9 Although the Court does not find that the jury was improperly motivated by 10 punitive concerns, that still leaves the question whether the evidence presented can 11 sustain a compensatory damage award for $5 million. As a general matter, compensable 12 injuries under section 1983 include “‘impairment of reputation, . . . personal humiliation, 13 and mental anguish and suffering.’” Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 14 307 (1986) (Harlan, J. concurring) (quoting Gertz v. Robert Welch, Inc. 418 U.S. 323, 350 15 (1974)). Moreover, “[t]he testimony of the plaintiff alone can substantiate a jury's award 16 of emotional distress damages.” Harper v. City of Los Angeles, 533 F.3d 1010, 1029 (9th Cir. 17 2008). Although Defendant notes that Plaintiff did not present any expert testimony 18 regarding his emotional damages, the court is not aware of any precedent requiring such 19 testimony. Greisen v. Hanken, No. 3:14-CV-1399-SI, 2017 WL 1967499, at *19 (D. Or. May 20 12, 2017) (rejecting argument that emotional damages verdict requires evidence from 21 “psychologist, psychiatrist, or other mental health professional”). 22 In terms of emotional damages testimony, Plaintiff described his experiences 23 during his arrest and subsequent confinement. Plaintiff began by describing how two 24 black SUVs approached him at 4:30 a.m. while he was waiting to go to work. (RT Day 2 25 at 131:25-132:12.) After being handcuffed, Plaintiff testified that he was told by Det. 26 Hendrickson that he was “arrested for going on the Internet and trying to seek sex with 27 little 12-, 13-, and 14-year-old girls.” (Id. at 135:5-8.) Although Plaintiff tried to explain 28 that he was the wrong person, it appeared no one believed him. (See id. at 135-136.) He 13 1 was then transferred to a jail where he testified one officer said to another, “Let’s beat the 2 shit out of him” and the other responded, “No, no, no, no. Guys like him, they don’t live 3 long in LA.” (Id. at 136:23-137:7.) After spending a week at an L.A. County Jail, Plaintiff 4 testified that he was transferred to Sacramento where he was held for approximately six 5 months until February 2012. (Id. at 137.) While in custody, Plaintiff knew that he was 6 facing charges that could result in a sentence of twenty years or more. (Id. at 138.) He also 7 testified that he was held in protective custody to protect him from other inmates 8 because of his charges. (See id. at 139:1-13.) Nonetheless, Plaintiff recalled being seriously 9 attacked on four occasions, all related to his fellow inmates believing he was a child 10 molester. (See id. at 139:14-140:14.) In addition to describing specific feelings of fear, 11 confusion, and embarrassment, Plaintiff delivered this testimony in an emotional manner 12 and cried during parts of it. Taken together, this testimony, which describes spending nearly seven and a half 13 14 months in custody, facing violence from fellow inmates and social stigma from others, 15 and fearing a potential lengthy prison sentence on serious charges, speaks to 16 considerable pain and suffering. However, calculating the maximum compensatory 17 damage award this testimony can support is a challenging task. This calculation is made 18 more difficult by the fact that neither Plaintiff’s nor Defendant’s counsel provided the 19 jury much guidance on how to appropriately value the harms incurred by Plaintiff. 2 In 20 conducting this analysis, the court considers damage awards granted in similar cases. Of 21 course, “[w]hile analogies to, and comparisons with, other cases may be helpful on many 22 types of issues, their usefulness on questions of damages is extremely limited.” Mattschei 23 v. United States, 600 F.2d 205, 209 (9th Cir. 1979). Indeed, as one district court has 24 25 26 27 28 Defendant’s counsel declined to address what damages would be appropriate if the jury found liability. Plaintiff’s counsel suggested only that the initial arrest—the “being snatched off the street”—should be valued at $100,000 and that the ensuing confinement should be “much more than that.” (See Dkt. 163 (RT Day 3) at 87:17-88:4.) 14 2 1 suggested, “one could find a case to support nearly any award of damages in nearly any 2 amount.” Thornton v. Kaplan, 958 F. Supp. 502, 505 (D. Colo. 1996). 3 In the motion for remittitur, Defendant cites to a number of section 1983 cases for 4 false arrest where juries awarded between approximately $200,000 and $1.3 million. (See 5 Mot. 7-8 (citing Javier Morales-Hernandez v. City and County of Los Angeles, et al., No. 6 BC376301 (L.A. Super. Ct. Sept. 29, 2010) (awarding $209,450 for spending three months 7 in custody); Alberto Gutierrez v. County of Los Angeles, et al., No. CV 10-04428-DDP (CWx) 8 (C.D. Cal. Aug. 12, 2012 (awarding $457,500 for 18 months in jail); Edmond Ovasapyan v. 9 City of Glendale, No. CV 08-00194-CAS (JWJ) (C.D. Cal. Feb. 25, 2009) (awarding $1.3 10 million for eight months on a murder charge)).) Plaintiff argues that these cases are all 11 distinguishable because the plaintiffs were accused of crimes that carry less stigma, faced 12 shorter sentences, or were not assaulted in jail. Instead, Plaintiff contends that a more 13 analogous case is Shipp v. DEA, No. CV 01-00167-DOC (AN) (C.D. Cal. 2003), where the 14 plaintiff spent 43 days in jail, was accused of a serious crime and faced a similarly 15 lengthy sentence, and was also beaten in jail. In that case, the judge awarded plaintiff 16 $550,000 in non-economic damages or nearly $12,800 per day of custody after a bench 17 trial. Id. Extrapolated to this case, Plaintiff argues that Shipp would justify a fee award of 18 nearly $3 million. 19 In the reply brief, and during the hearing, Defendant settles on a benchmark 20 award of $1 million per year. In support, Defendant collects cases from numerous 21 jurisdictions and argues that a wide range of courts have settled on $1 million per year as 22 fair compensation for wrongful incarceration. (Reply 2-3 (collecting cases).) By that 23 measure, Defendant contends that an award of $583,333.33 for seven months 24 incarceration would be reasonable. In response, Plaintiff urges the court to consider the 25 order in Smith v. City of Oakland, 538 F. Supp. 2d 1217 (N.D. Cal. 2008.) In Smith, the 26 district court distinguished the City of Oakland’s efforts to invoke a $1 million 27 benchmark in a false arrest case because one of the leading cases discussing that sum, 28 Limone v. United States, 497 F. Supp. 2d 143 (D. Mass. 2007), established that “a 15 1 wrongfully imprisoned plaintiff was entitled to compensation of ‘at least $1 million per 2 year of imprisonment.’” Smith, 538 F. Supp. 2d at 1242 (quoting Limone, 497 F.Supp.2d at 3 243–44 (emphasis added)). Thus, in that court’s view, Limone described a floor rather than 4 a ceiling. Id. The order went on to explain that “[w]here the period of incarceration is 5 shorter (e.g., less than one year), proportionately larger awards (measured by 6 annualizing the award) have been rendered, presumably reflecting Limone’s observation 7 that the injury from incarceration may be more intense towards the beginning.” Id. 8 Ultimately, in Smith, the court remitted a $5 million emotional distress award to $3 9 million for a 4 ½ month period of incarceration. Id. at 1243. 10 Taken together, it is evident that Plaintiff’s arrest and his experience in custody 11 were serious. Plaintiff’s particular circumstances were made worse by the fact that he 12 was accused of a disturbing crime that exposed him to physical danger while in custody 13 and ongoing social stigma after his release. At the same time, the jury’s award of $5 14 million for 7 ½ months of confinement, which represents an annualized award of $8 15 million, goes beyond most of the cases the court has reviewed. Although each case and 16 each plaintiff is unique, the closest analogue may be Smith. In Smith, the Plaintiff alleged 17 that the police planted a rifle on him and charged him with unlawful gun possession. Id. 18 at 1240. The plaintiff in Smith described a harrowing experience, which included being 19 arrested while lying naked in bed by a swarm of armed police. Id. Smith also testified 20 about how he was interrogated at gunpoint and paraded out to a patrol car in front of his 21 family and neighbors. Id. Smith provided testimony about how he had never been 22 charged for a crime as an adult, how officers lied at various proceedings, including a 23 parole revocation hearing, and how afraid and confused he was during the entire ordeal. 24 Id. at 1241. Finally, Smith testified about the ongoing consequences of the deterioration of 25 his relationship with his family and girlfriend. Id. By contrast, the transcript of Plaintiff’s 26 testimony provides a narrative account of his detention but none of the same details 27 about particular emotional damages suffered, beyond the initial fear and confusion of his 28 arrest, or any ongoing emotional distress. Moreover, Defendant’s counsel introduced 16 1 some evidence about how Plaintiff had previously spent approximately six years in 2 prison on three felony charges. (RT Day 2 at 3-19.) 3 Considered holistically, the situations Smith and Plaintiff faced were largely 4 comparable. Each was confronted with serious felony charges as a result of police 5 misconduct. Admittedly, the plaintiff in this case was held in confinement for a longer 6 period of time and faced violence while in confinement that Smith did not. But Smith 7 testified in much greater detail about the emotional impact of his arrest, confinement, 8 and its lingering consequences. There is no question both of these individuals suffered 9 considerably. However, just as the district court in Smith found that the jury’s $5 million 10 compensatory damage award was grossly excessive and could not be supported by the 11 evidence, this Court finds that a similar conclusion holds in this case. Reviewing the 12 evidence presented by Plaintiff, and taking into account Plaintiff’s particular 13 circumstances and the specific testimony he provided, the court finds that the “maximum 14 amount sustainable by the proof,” Oracle Corp. v. SAP AG, 765 F.3d at 1094, is a damage 15 award for $3,000,000.00. 16 IV. CONCLUSION 17 For the reasons stated above, Defendants' Motion for Remittitur is GRANTED. 18 The award of damages is remitted from $5,000,000 to $3,000,000. Plaintiff shall have ten 19 days from the date of this Order to accept or reject the remittitur. Should Plaintiff accept, 20 a final judgment shall issue. Should Plaintiff reject the remittitur, the Court shall grant 21 Defendants' Motion for a New Trial in the Alternative on the issue of damages only. 22 23 IT IS SO ORDERED. 24 25 26 27 28 Dated: June 12, 2017 ___________________________________ DEAN D. PREGERSON UNITED STATES DISTRICT JUDGE 17

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