Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BC323154, Joseph Kalin, Judge. (Retired Judge of the L.A. S.Ct. assigned by the Chief Justice pursuant to art. VI, §6 of the Cal. Const.)
Law Offices of Akudinobi & Ikonte, Emmanuel C. Akudinobi and Chijioke O. Ikonte, for Plaintiff and Appellant.
Coleman & Associates, John M. Coleman and Charles K. Collins, for Defendants and Respondents.
TURNER, P. J.
I. INTRODUCTION
Plaintiff, Bill Henderson, appeals from a judgment and a cost award following a directed verdict in favor of defendant, Thomas Simpson, a Los Angeles County deputy sheriff. The pertinent portion of the second amended complaint alleges excessive force was used in violation of plaintiff’s civil rights. (42 U.S.C. § 1983 (section 1983).) We affirm.
All further statutory references are to title 42 of the United States Code unless otherwise indicated.
II. BACKGROUND
A. The Second Amended Complaint
The second amended complaint alleges that plaintiff was injured by Los Angeles County Sheriff’s Department deputies on January 10, 2003. (The incident at issue actually occurred in January 2004.) It is alleged that Deputy Simpson and Deputies Dexter Carter and Pauline Panis approached plaintiff in sheriff’s cars. Deputy Simpson then battered, pepper sprayed, kneed, kicked, and repeatedly punched plaintiff without cause. Deputy Simpson is alleged to have placed plaintiff in a choke hold. The hold choked the air out of plaintiff’s lungs. Deputy Simpson held plaintiff’s arms. This allowed other deputies to continue to strike plaintiff on his head and face. Plaintiff further alleges that: he was beaten to unconsciousness; then he was handcuffed and placed in a patrol car. Because he was lapsing in and out of consciousness, he was later hospitalized. The second amended complaint contains causes of action for violations of section 1983 under a number of theories: excessive force (first); excessive force as a matter of policy pursuant to Monell v. New York Dept. of Social Services (1978) 436 U.S. 658, 691 (second); conspiracy to torture and maim (third); reckless indifference (fourth); reckless indifference pursuant to Monell (fifth); and racial profiling (seventh). The second amended complaint also contained a conspiracy to interfere with civil rights claim in violation of section 1985(3) (sixth). On March 25, 2008, plaintiff dismissed the second, fifth, sixth, and seventh causes of action; his Monell and profiling based claims. On March 26, 2008, the matter proceeded to a jury trial on the first (excessive force), third (conspiracy to maim), and fourth causes of action (reckless indifference).
B. The Excessive Force Evidence
1. The emergency telephone call
Deanna Dube made the emergency telephone call. There had been gang problems in the neighborhood prior to the incident involving plaintiff. Around 5 a.m., she heard very loud noises coming from outside her house on Avis Avenue. She looked out the window and saw plaintiff and Mark Howell fighting in the middle of the street. According to Ms. Dube, plaintiff and Mr. Howell were shouting at each other, pushing and shoving, and occasionally hugging. Then one of the men would push the other away and they would shout some more and the language got very graphic. She heard a lot of words like the “N” word, “Fuck you,” and “Son of bitch.” She watched them for about five minutes and decided to call the emergency operator when she heard someone shout: “You know, I’m your brother. I’ve got blood on me. I’m your brother.” She may have heard, “I’m covered with blood or there is blood on me.” One of the reasons she decided to summon the authorities was that she thought there were two car loads of gang members. The dispatcher relayed that there was a “415(g)” meaning a disturbance in violation of Penal Code section 415 involving gang members. The dispatcher also stated “Two unknown vehicles filled with male... blacks fighting in the middle of the street....” After the police arrived, Ms. Dube left the window for a few minutes. She observed three figures sort of fall to the ground. She heard someone say, “Calm down, Calm down, over and over and over just calm down.” She thought she heard someone say, “Just do what they said.”
2. The testimony of Yesenia Lopez, Mr. Howell, and plaintiff
a. Ms. Lopez’s testimony
Ms. Lopez resided on Avis Avenue in Lawndale with her parents. In January 2004, Ms. Lopez was plaintiff’s girlfriend. Although the two of them have not been a “couple” since September 2006, Ms. Lopez is still a good friend of plaintiff. On January 10, 2004, sometime early in the morning, plaintiff was outside her home. Plaintiff had called to say he was coming to pick up Ms. Lopez. Plaintiff arrived at her home with Mr. Howell. Mr. Howell was plaintiff’s best friend. Ms. Lopez worked with plaintiff and Mr. Howell at a bank. Plaintiff and Mr. Howell were standing in the middle of the street arguing with each other. Ms. Lopez asked them what they were arguing about but the two of them ignored her. Ms. Lopez soon saw a patrol car down the street from her home. Deputy Panis was in the patrol car. A second patrol car arrived with Deputies Baxter and Simpson. The three deputies got out of their patrol cars. The three deputies approached plaintiff and Mr. Howell who were still arguing. According to Ms. Lopez, plaintiff and Mr. Howell never fought with each other; they just argued.
Deputies Pauline Panis and Dexter Baxter approached Mr. Howell. Deputy Simpson approached plaintiff. The deputies separated plaintiff and Mr. Howell. Ms. Lopez was standing closer to Mr. Howell than to plaintiff. Deputy Simpson spoke to plaintiff. According to Ms. Lopez, plaintiff was ordered to put his hands behind his back. She saw Deputy Simpson reach for his handcuffs. Plaintiff put his hands behind his back. Plaintiff was instructed to put his hands behind his back. She testified, “And at that time [plaintiff] turned around – tried to turn around and look behind him so see who was standing there.” Ms. Lopez testified that Deputy Simpson got control of plaintiff’s left hand. She agreed the following described plaintiff’s reaction, “And he turned around to look at like he was trying to find out who was behind his back....” Ms. Lopez testified that, as the turning movement occurred, plaintiff’s elbow then made contact with Deputy Simpson. And this occurred as plaintiff turned around to look at Deputy Simpson. Ms. Lopez was asked whether she was familiar with what is characterized in basketball as throwing an elbow. Ms. Lopez did not characterize plaintiff’s movement with his elbow as being that flagrant.
Deputies Baxter and Panis began to assist Deputy Simpson. Deputies Baxter and Panis began hitting plaintiff. She did not see plaintiff hitting or kicking any of the deputies while he was on the ground. Ms. Lopez asked the two deputies to stop hitting plaintiff.
When the paramedics arrived, they put an oxygen mask and a neck brace on plaintiff. She saw the paramedics give an icepack to one of the officers to put on his knuckles. When Ms. Lopez visited plaintiff in the hospital, she could not “even recognize him” because: his face was swollen; he had cuts on his lips; one of his eyes was shut completely; the other eye was really swollen; he had tubes in his nose and mouth and wore a neck brace.
Ms. Lopez admitted that immediately after the incident she told Sergeant Christian Anderson that she saw plaintiff “resisting” being handcuffed. According to Ms. Lopez, she was in shock while she was being interviewed. A videotape of the January 10, 2004 interview of Ms. Lopez with Sergeant Anderson was shown to the jury. Ms. Lopez stated that plaintiff and Mr. Howell were arguing with each other in the street. When the deputies arrived, they tried to handcuff plaintiff and Mr. Howell. She stated: “I guess they were trying to... put them in handcuffs, and I guess he hit the deputy or something. Like, trying to resist him, I guess.” She told Sergeant Christian: “He was trying to resist them, and then he hit them then... [¶]... they handcuffed him.... Like, he try to push himself away....” Plaintiff was pushed to the ground in Ms. Lopez’s view because he would not submit to handcuffing. She eventually saw Deputy Baxter kicking and hitting plaintiff. Deputy Baxter kept hitting and kicking plaintiff.
b. Mr. Howell’s testimony
Mr. Howell and plaintiff have been friends since 1994 when they were in high school. They worked together at a bank as proof operators. On January 9, 2004, plaintiff worked at the bank as a lead proof operator at a bank. They worked together on January 9, 2004, from 5 p.m. until 12 midnight. Plaintiff finished work at about 12:30 a.m. on January 10, 2004. The two walked to a nearby bar and drank liquor and beer. They drank a “French Connection” which is half Grand Marnier and half Hennessey plus about three beers. When the bar closed at 2 a.m., the two left and went to their cars which they had left at the bank. They then drove in separate cars to Ms. Lopez’s home where the two began having an argument. Mr. Howell probably called plaintiff a “fucking nigger” during the argument. Mr. Howell said their voices were raised but plaintiff kept trying to hug Mr. Howell saying the two were brothers. Mr. Howell kept pushing plaintiff away. Mr. Howell slipped and fell at one point scraping his hand. Mr. Howell did not know how he got blood on his face that was dripping during a videotaped interview immediately after the incident. The only injury was to his hand. The two argued all the time but had never hit one another.
Mr. Howell did not hear or see the deputies approach them. When the officers arrived, they separated the two men. The officers then asked the men to put their hands behind their backs. Mr. Howell complied with the request. Mr. Howell testified: “The officer was asking us to put our hands behind our backs. I guess they was having a hard time with [plaintiff] putting his hands behind his back.... I put my hands behind my back, and I pretty much turned around and told [plaintiff], go ahead and let them do whatever they’re going to do....” Mr. Howell testified Deputy Simpson sounded frustrated and said: “Put your hands behind your back. Put your hands behind your back.” Mr. Howell did not know if plaintiff ever put his hands totally behind his back or not. The next thing he saw was plaintiff on the sidewalk face down. The deputies were hitting plaintiff. Because it was dark, Mr. Howell was unsure which deputies were hitting plaintiff.
c. plaintiff’s testimony
Plaintiff was unaware of the deputies’ presence until they were leading Mr. Howell away. Plaintiff heard someone say, “Put your hands behind your back.” Plaintiff complied with the request. Plaintiff denied using profanity or saying that his “motherfucking” hands were behind his back. Plaintiff did not see Deputy Simpson. Plaintiff did not feel anybody reach out for his hand. However, plaintiff remembered that somebody tugged on his arm. Plaintiff testified, “They kept their hand on like my shoulder, my arm. My arm. They had their hands on my arm while I was putting my hands behind my back.” Plaintiff testified he complied with the order to put his hands behind his back. Plaintiff tried to look at the face of the person behind him. Plaintiff testified he was unable to completely turn around to see who was behind him. Plaintiff was asked what happened as he was turning around: “Q [] So when you turned around with your hands behind your back and turn around to find out who was behind you, did you at any time feel your body making contact with the person who was behind you? [¶] A It could have happened, not that I recall.” Later plaintiff testified, “And when I turned slightly, I don’t remember me getting contact with him, but after that I just remember somebody just holding me tight, trying to hold me.” At that point, plaintiff was tightly grabbed around the neck. Plaintiff testified his air supply was cut off, he fell to the ground, and he could not remember much of what happened after that. Plaintiff later described that his airway “passage being cut off” and he was dragged. Plaintiff then fell to the ground where he was repeatedly struck. Plaintiff remembered being hit in the face and the ribs. He was pepper sprayed. He was getting kicked and kneed. Plaintiff subsequently lost consciousness and did not remember being treated by paramedics. Plaintiff later awoke in the hospital where he was handcuffed to a bed. It took weeks for his left eye to open. When he could open it, the eye was bloodshot. When plaintiff’s mother visited him in the hospital, he told her that the police beat him up because he was not listening to them.
2. The deputies’ testimony
a. Deputy Simpson’s testimony
Plaintiff called Deputy Simpson to testify pursuant to Evidence Code section 776, subdivision (a). Deputy Simpson was a fifth degree black belt in karate. Deputy Simpson responded to a call that there was a gang fight. Deputy Simpson saw plaintiff and Mr. Howell “in the middle of the street face to face” apparently getting ready to fight. The two were arguing in the middle of the street. As the deputies approached plaintiff and Mr. Howell, the two men continued to argue, yelling at each other, real close, face to face. Plaintiff appeared to be furious with Mr. Howell. Deputies Simpson, Baxter, and Panis approached them in an effort to resolve the issue. Deputy Simpson tried to guide plaintiff away from Mr. Howell. Plaintiff tried to go back towards Mr. Howell. Deputy Simpson then tried to get a firm grip on plaintiff. Deputy Simpson intended to turn plaintiff away from Mr. Howell. Plaintiff was asked to place his hands behind plaintiff’s back so he could be searched. Plaintiff did not comply. Plaintiff was then ordered to place his hands behind his back. Plaintiff told Deputy Simpson “My fucking hands are behind my back.”
Plaintiff suddenly spun to his left. As this was occurring plaintiff’s left elbow struck Deputy Simpson in the left upper chest and shoulder area. Deputy Simpson testified: “After that I was struck, hit, I stumbled back regained my footing, because of the close proximity with the force option chart, I attempted to apply a carotid restraint but my main goal prior to that probably like seconds before was I have got to hold onto this guy because I don’t know if he has anything in his waistband, because I did not have the opportunity to search him. [¶] So I figured, if I keep him close to me and my partner is hearing the struggle, at least, he won’t get a chance if he has a weapon or a gun to shoot me or shoot anybody else. That was going through my head at that time, to keep him close to me locking him up as tight as I could and try and apply the carotid restraint to end the problem.”
Deputy Simpson testified that the carotid restraint is utilized against an aggressive, assaultive person. The carotid arteries are pressed in such a manner that it stops the flow of oxygenated blood to the brain causing the person to pass out. Deputy Simpson testified that the desired effect is achieved as follows: “The position of the arm is such that one carotid artery is pressed upon with the forearm and the other is pressed upon with the bicep thereby making a triangle which the throat area is protected from the natural position of your elbow within that area so there is an area where there is no pressure whatsoever applied to the throat of the person that the carotid restraint is being applied on.”
Deputy Simpson did not know exactly how the two of them ended up on the ground. But Deputy Simpson landed on his back. This occurred while Deputy Simpson was still holding onto plaintiff. However, Deputy Simpson believed they ended up on the ground from the momentum of a series of three events. First, plaintiff’s elbow struck Deputy Simpson. Second, Deputy Simpson was driven back and then reengaged, trying to gain control of plaintiff. And third, plaintiff was constantly struggling.
As the struggle progressed, Deputy Simpson stopped attempting to apply the carotid restraint. Rather, Deputy Simpson was trying to get control of plaintiff. Deputy Simpson used both his hands in this effort. While they were on the ground, Deputy Panis sprayed them with pepper spray. Deputy Simpson thought that plaintiff was the person doing the spraying. After Deputy Simpson closed his eyes from the pepper spray, he heard Deputy Panis put out a call on the radio call. The radio call was that a deputy was in a fight. While his eyes were shut, Deputy Simpson heard, someone say: “Stop fighting. Stop fighting. Give me your hands....” Deputy Simpson attempted to reapply the carotid restraint while the two of them were on the ground. Deputy Simpson testified that he was unsuccessful in applying the carotid restraint because the desired effect is to render the suspect unconscious. And plaintiff kept fighting and struggling. Deputy Simpson attempted the carotid restraint three or four times. However, due to the struggle, Deputy Simpson was unable to properly apply the restraint. At no time while Deputy Simpson was attempting to apply the carotid restraint did plaintiff go limp. Deputy Simpson tried to gain control of plaintiff’s upper body. But plaintiff continued to struggle and get away from Deputy Simpson.
Deputy Simpson testified that there were various options in the department’s written use of force policies. The options vary depending upon whether the suspect is cooperative, resistive, or assaultive. When a person is resisting, there are defensive tactics but the use of a carotid restraint is not listed as an option. The resistance options include a firm grip. When a suspect is assaultive to high risk, a deputy is allowed to use weapons, karate restraint, and canines. A high risk situation could be the initial call of a gang fight. It could also include something like a person spitting at a deputy. Such conduct was classified as high risk because a deputy would not know what would follow the hostile act of spitting. Plaintiff’s counsel asked if Deputy Simpson agreed that an assaultive action was defined by the department’s policies and procedures which is, “A suspect who has crossed the line of resistance and is threatening an assault, attempting an assault or basically assaulting the deputy or citizen.” Deputy Simpson agreed that any “assaultive high risk” behavior by a suspect gives a deputy the option of using a carotid restraint.
Deputy Simpson explained his use of force as follows. At first, Deputy Simpson had plaintiff in a firm grip. However, plaintiff turned around. Plaintiff’s elbow hit Deputy Simpson. Deputy Simpson then lost his balance and he knew he was in a fight. Deputy Simpson testified that he did not know the extent of the fight. Deputy Simpson did not know what plaintiff intended to do. Deputy Simpson was not able to conduct a pat down search to determine whether plaintiff had any weapons due to the fight. During the fight, Deputy Simpson was concerned about the following facts: he had been called about a gang fight; he had been unable to complete the search for weapons; and Deputy Simpson had two loaded weapons in his possession. And during the fight, plaintiff could have gained control of one of the two loaded handguns.
b. Deputy Panis’s testimony
Plaintiff called Deputy Panis to testify pursuant to Evidence Code section 776, subdivision (a). Deputy Panis was the first to arrive at the scene and waited for backup. When they approached the two men, Deputy Panis asked them to separate. However, they were not listening to her. She placed Mr. Howell in back of a patrol car and attempted to ascertain why the two men were in the middle of the street. She then turned around and saw Deputy Simpson attempting to place plaintiff in a carotid restraint. She observed them both falling to the ground. Deputy Panis wrote in her report of the incident that she saw Deputy Simpson hold plaintiff in a carotid restraint. As Deputy Panis walked up to the two men on the ground, plaintiff was lying flat on his back. But plaintiff was on top of Deputy Simpson. (Deputy Panis had written in her report that plaintiff was on top of Deputy Simpson and the two men were face-to-face.) Plaintiff was kicking his legs towards Deputy Panis as she walked towards him. Plaintiff was struggling trying to get away from Deputy Simpson. Deputy Panis pepper sprayed plaintiff. Deputy Panis then realized that she had also pepper sprayed Deputy Simpson. And she recognized the pepper spray had no effect on plaintiff. Deputy Panis called for assistance. Deputy Carter then came over and struck plaintiff several times. Deputy Carter used his hands to administer the initial blows. Deputy Panis struck plaintiff in the face with her fist. According to Deputy Panis, Deputy Simpson no longer had control of plaintiff when she and Deputy Carter were administering blows. During the fight, Deputy Panis was saying: “Give me your arm. Stop fighting. Give me your hand, stop fighting.” She repeated these directives many times but plaintiff failed to comply with her orders.
c. Deputy Carter’s testimony
Deputy Carter saw plaintiff and Mr. Howell speaking loudly to one another. Deputy Carter saw Deputy Simpson holding plaintiff’s upper torso. Plaintiff was lying on top of Deputy Simpson. Plaintiff was kicking and moving different parts of his body. Deputy Simpson did not have control of plaintiff’s hands. Deputy Carter struck plaintiff in the face and knee. Deputy Carter kicked plaintiff in the rib cage area. Deputy Carter did so because plaintiff refused to relinquish his hands. Deputy Carter lifted plaintiff off of Deputy Simpson. This only occurred after Deputy Carter hit plaintiff the second time. Deputy Carter then kneed plaintiff in the rib cage. Only then did plaintiff relinquish his hands to be handcuffed.
3. Opinion testimony
Plaintiff had a blood alcohol level of.255 percent when his urine was tested at the hospital, which far exceeds the.08 the legal blood alcohol limit for operating an automobile. (Veh. Code, § 23152). Dr. Ronald Slegel, a psycho pharmacologist, testified plaintiff would have had a.27 blood-alcohol level at the time of the incident. The amount reflects “an enormous” exposure to alcohol and people have died at a.18 level. This amount was much more than plaintiff and Mr. Howell admitted drinking. Plaintiff’s loud, boisterous, aggressive, and uncooperative behavior is consistent with alcohol intoxication. Plaintiff would have been in a state of delirium which affected his judgment. The delirium would also account for the absence of an effect on plaintiff when he was pepper sprayed.
Plaintiff called Daniel Sullivan to testify on the issue of use of force. Mr. Sullivan was retired. Mr. Sullivan worked with the Los Angeles Police Department for 25 years and retired as a deputy chief. Mr. Sullivan reviewed the sheriff’s force option chart. The department’s policy allows the use of a carotid restraint in a case of assaultive and high risk situation. Mr. Sullivan’s interpretation of the policy was that “high risk and attacks, when an officer is attacked, he may have to resort” to the use of the carotid restraint. Mr. Sullivan discussed when the carotid restraint technique should be used. The circumstance that it should be used is “when a suspect has crossed the line of resistance and is threatening an assault and attempting assault or physically assaulting” a deputy or a citizen.
Mr. Sullivan thought that the use of force in this case was improper, not up to standard, and excessive. Mr. Sullivan thought it was excessive force to immediately apply the carotid restraint while plaintiff was standing up and under the circumstances of the incident. Mr. Sullivan testified: “My opinion is based on the materials provided to me which included the fact that when the officers arrived at the scene they saw two people in the street. They did not see anyone fighting. They did not hear anyone threaten, the two people did not threaten each other, they did not threaten the officers. They didn’t try [to] run away. I considered that there were three sworn police officer deputies. [¶] I am aware that in the requirements to be a peace officer in the State of California, over half of all training is mandated to be arrest and control techniques. I considered that the officers did not feel threatened to the extent that they drew a weapon. [¶] I considered that the one officer that was the other party told him, hey, turn around put your hands on your back I want to search you for weapons. I considered that the second officer who took [plaintiff] aside didn’t tell him why he wanted him to put his hands behind his back.”
Mr. Sullivan further testified: “I considered in forming my opinion that when [plaintiff] was not cooperative, I considered his size versus the size of the officer. I considered that the officer was a well-trained police officer. I considered based on the materials I read that he was a martial arts expert. I considered that he had his back to the officer.... [A]nd I considered that he did not tell [plaintiff] I want to search you. He just said put your hand behind your back. [¶] I considered that [plaintiff] did not cooperate. And I considered that the officer did not attempt to put [plaintiff[ in a wrist lock or a firm grasp that he, as soon as [plaintiff] pulled away from him, and I considered that he bumped into the officer, it was my opinion based on what I read that he was not attacking he officer with intent to commit injury to the officer. [¶] And my opinion was based on all of those circumstances that you immediately go to a carotid control hold which I am well aware is a very dangerous hold to apply....”
Mr. Sullivan concluded: “I considered that [plaintiff] was someone who would be much easier to control than a normal person of his size and shape at that time of the morning under normal circumstances. And it was my opinion that to immediately go to carotid control was improper.... [¶] And I considered that when the... deputy put the carotid control hold on [plaintiff], it was not applied properly, that it was applied when he was standing up. That is very tricky, based on my experience when you apply carotid to someone who is standing up, it’s very easy to slip and fall down.” Mr. Sullivan also testified that the actions (pepper spraying, fist strikes to the face, and knee kick to the rib cage) of Deputies Carter and Panis were excessive.
On cross-examination, Mr. Sullivan admitted that in forming his opinion he did not know a number of things. Mr. Sullivan did not know: Mr. Howell had blood on his body; Mr. Howell had been injured in any way; Ms. Lopez had described what happened in a videotaped interview right after the incident; Ms. Lopez had stated that plaintiff, while resisting being handcuffed, must have elbowed Deputy Simpson; Ms. Lopez had made a gesture indicating that plaintiff used his elbow while resisting the handcuffing; and the contents of the emergency telephone call placed by Ms. Dube. Mr. Sullivan did not believe that plaintiff had assaulted Deputy Simpson. Mr. Sullivan was asked to assume plaintiff elbowed Deputy Simpson during the handcuffing. Mr. Sullivan agreed such conduct construed resistance by plaintiff. However, Mr. Sullivan also testified at his deposition that in that situation: “[Y]ou have got to then take some further action. As it might be something to the effect where you step back and say hey, if you don’t comply you are going to wind up in jail. You are going to wind up going to jail. It is my opinion based on what I read that that is not what [Deputy] Simpson did. He immediately went into a self-defense attack mode.”
Clarence Chapman, a retired sheriff’s station commander and the former Police Chief of the University of California at Los Angeles, testified on defendants’ behalf. Mr. Chapman testified that the force employed was reasonable under the circumstances of the case and consistent with the sheriff’s policies and procedures. According to Mr. Chapman, the use of force is driven by the suspect; i.e., the deputies are reacting to perceived threats. In this case, the suspect’s actions escalated to where the deputies could proceed in a manner that it was becoming almost life threatening. Mr. Chapman described the escalation process as follows: plaintiff resisted being handcuffed, which created a threat; Ms. Lopez stated on the videotape interview that plaintiff resisted being handcuffed; Ms. Lopez demonstrated on the videotape that plaintiff pulled back and hit Deputy Simpson; Deputy Simpson stated that he attempted to apply the carotid restraint after the elbowing incident; the physical contact is what caused Deputy Simpson to apply the carotid restraint; the carotid restraint was unsuccessful; the pepper spray was unsuccessful; Deputy Simpson was pepper sprayed; and plaintiff was on top of Deputy Simpson.
C. The Directed Verdict And Judgment
After all the witnesses testified, the parties discussed the exhibits and defense motions regarding punitive damages and qualified immunity. Defense counsel indicated that defendants would be moving for a directed verdict as to the third and fourth causes of action for conspiracy to torture and reckless indifference, respectively. The trial court indicated that its tentative ruling was to grant the directed verdict as to the third and fourth causes of action. After argument to the jury, the trial court granted a defense motion for directed verdicts as to the third and fourth causes of action. Defense counsel then advised the court that defendants intended to move for a directed verdict on the only remaining cause of action for excessive force. Following defendant’s closing argument and while the jury was deliberating, the trial court heard a directed verdict motion as to the first cause of action for excessive force which the trial court granted as to Deputy Simpson. However, the trial court denied the directed verdict motion as to Deputies Carter and Panis.
The jury subsequently indicated that it was hopelessly deadlocked as to liability for Deputies Simpson, Carter, and Panis for excessive force. The jury advised the court that it was unable to answer question one of the jury verdict form: “Did the defendant Los Angeles County Sheriffs Dexter Carter and/or Thomas Simpson and/or Pauline Panis use excessive force toward plaintiff Bill Henderson?” On May 21, 2008, plaintiff filed a reconsideration motion to vacate the court’s order directing the verdict in favor of Deputy Simpson, which motion was opposed by defense counsel. On June 13, 2008, the trial court denied the reconsideration motion and stated, “The court’s ruling was based upon [the] lack of evidence of excessive force by Deputy Simpson....”
On May 20, 2008, judgment was entered in favor of Deputy Simpson and against plaintiff. Thereafter, Deputy Simpson filed a cost memorandum. The trial court subsequently denied plaintiff’s motion to strike costs in their entirety. But the trial court taxed costs as to some items. This timely appeal followed.
III. DISCUSSION
A. The Directed Verdict
Code of Civil Procedure section 630, subsection (a) provides in part: “Unless the court specified an earlier time for making a motion for directed verdict, after all parties have completed the presentation of all of their evidence in a trial by jury, any party may, without waiving his or her right to trial by jury in the event the motion is not granted, move for an order directing entry of a verdict in its favor.” Citing Code of Civil Procedure section 630, subdivision (a) and Gibson v. Southern Pacific Co. (1955) 137 Cal.App.2d 337, 346, plaintiff contends the directed verdict motion was untimely because it was made after the matter was submitted to the jury. No objection to the directed verdict motion was made on this ground in the trial court; therefore, plaintiff may not do so for the first time on appeal. (DeVault v. Logan (1963) 223 Cal.App.2d 802, 806 [directed verdict motion made after close of evidence and arguments of counsel and counsel acquiesced to a belated motion precluded timeliness objection on appeal]; see also People v. Saunders (1993) 5 Cal.4th 580, 590 [procedural errors waived by failure to object].)
In addition, no prejudice has been established from the timing of the motion. In response to the motion, plaintiff fully argued that the directed verdict should not be granted. Furthermore, plaintiff argued the propriety of the motion on the merits a second time after the jury failed to reach a verdict and was discharged. The trial court on reconsideration decided to abide by its original decision that granted Deputy Simpson’s directed verdict motion. The trial court had discretion to consider a directed verdict motion after the jury failed to reach a verdict as to Deputy Simpson. Code of Civil Procedure section 630, subdivision (f) states in part, “When the jury for any reason has been discharged without having rendered a verdict, the court on its own motion or upon motion of a party, notice of which was given within 10 days after discharge of the jury, may order judgment to be entered in favor of a party whenever a motion for directed verdict for that party should have been granted had a previous motion been made.” (See People v. Hernandez (2000) 22 Cal.4th 512, 525-526; Virtanen v. O’Connell (2006) 140 Cal.App.4th 688, 712.)
Finally, there is no merit to plaintiff’s lack of notice contention. None of the cases cited by plaintiff involve a directed verdict motion pursuant to Code of Civil Procedure section 630. (E.g. Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 839-840 [nonsuit motion]; Timmsen v. Forest E. Olson, Inc. (1970) 6 Cal.App.3d 860, 868 [nonsuit motion]; Sales v. Stewart (1933) 134 Cal.App. 661, 663 [judgment notwithstanding the verdict motion].) In any event, when the motion was heard, there was no doubt that it extended to the excessive force claim against Deputy Simpson. Moreover, the issue was completely relitigated as to Deputy Simpson in response to plaintiff’s written reconsideration motion thus obviating any lack of notice issue. (Nunez v. Workers’ Comp. Appeals Bd. (2006) 136 Cal.App.4th 584, 594; Eliceche v. Federal Land Bank Assn. (2002) 103 Cal.App.4th 1349, 1371-1372.)
A party is entitled to a directed verdict if, as a matter of law, the evidence is insufficient to permit a jury to find in favor of the opposing party. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631; Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 262-263.) However, if the party resisting a motion for directed verdict produced sufficient evidence to support a jury verdict, the judgment must be reversed. (McMahon v. Albany Unified School Dist. (2002) 104 Cal.App.4th 1275, 1282; Bell v. State of California (1998) 63 Cal.App.4th 919, 923.) Our Supreme Court has explained: “‘A directed verdict may be granted, when, disregarding conflicting evidence, and indulging every legitimate inference which may be drawn from the evidence in favor of the party against whom the verdict is directed, it can be said that there is no evidence of sufficient substantiality to support a verdict in favor of such party, if such a verdict has been rendered.’” (Newing v. Cheatham (1975) 15 Cal.3d 351, 358-359; Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 745; Wolf v. Walt Disney Pictures and Television (2008) 162 Cal.App.4th 1107, 1119; see also People v. Ault (2004) 33 Cal.4th 1250, 1266 [“[A]ppellate review of trial court orders granting nonsuits, directed verdicts, or judgments notwithstanding the verdict-orders that finally terminate claims or lawsuits-is quite strict. All inferences and presumptions are against such orders”].) An appellate court reviews the trial court ruling granting a directed verdict de novo. (Magic Kitchen LLC v. Good Things Intern., Ltd. (2007) 153 Cal.App.4th 1144, 1154; Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 46-47.)
Plaintiff argues Deputy Simpson used excessive force in applying one or more carotid restraints during the incident. The United States Supreme Court has explained: “Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of ‘“the nature and quality of the intrusion on the individual’s Fourth Amendment interests”’ against the countervailing governmental interests at stake. [Tennessee v. Garner (1985) 471 U.S. 1, 8 quoting United States v. Place (1983) 462 U.S. 696, 703.]” (Graham v. Connor (1989) 490 U.S. 386, 396.) In Graham, the United States Supreme Court explained: “Because ‘[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,’ Bell v. Wolfish [(1979)] 441 U.S. 520, 559, however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. See Tennessee v. Garner, [supra, ] 471 U.S., at 8-9 (the question is “whether the totality of the circumstances justifie[s] a particular sort of... seizure’).” (Graham v. Connor, supra, 490 U.S. at p. 396.) In Graham, the United States Supreme Court continued: “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving--about the amount of force that is necessary in a particular situation. [¶] As in other Fourth Amendment contexts, however, the ‘reasonableness’ inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. [Citations.].)” (Id at pp. 396-397 accord Edison v. City of Anaheim (1998) 63 Cal.App.4th 1269, 1273-1275.) Plaintiff had the burden of showing that an officer’s use of force was unreasonable. (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 529; see also Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, 1102 [plaintiff has burden of proving officer used unreasonable force].)
No evidence supports the theory that a carotid restraint was excessive under the circumstances of this case. The events leading up to Deputy Simpson’s attempts to detain and handcuff plaintiff resulted from the following circumstances. Deputy Simpson responded to a report of a fight involving gang members. Ms. Dube so reported the incident to the emergency operator. Upon approaching, the deputies observed plaintiff and Mr. Howell in a heated argument, standing face to face in the middle of the street between 5 a.m. and 6 a.m. Neither plaintiff nor Mr. Howell heard the deputies approach. The deputies separated the two men. The deputies directed the two men to place their hands behind their backs to be handcuffed. It was reasonable for the deputies to handcuff plaintiff and Mr. Howell. Plaintiff admitted turning around as Deputy Simpson attempted to complete the handcuffing process. Plaintiff testified that he was attempting to see who was behind him. Ms. Lopez’ videotaped interview unequivocally states that the incident escalated after plaintiff turned around and hit Deputy Simpson during the handcuffing process. Ms. Lopez physically demonstrated how plaintiff’s elbow hit Deputy Simpson. According to Ms. Lopez, this occurred while plaintiff was resisting during the arrest process.
Plaintiff’s strongest argument is that his own testimony was equivocal on the subject of what occurred during the handcuffing process. Plaintiff admitted turning his body to the rear. Plaintiff was attempting to discover who was behind him. Plaintiff was specifically asked whether there was any contact with Deputy Simpson. As noted during the factual discussion, plaintiff responded, “It could have happened, not that I recall.” And, as noted, plaintiff later testified, “And when I turned slightly, I don’t remember me getting contact with him, but after that I just remember somebody just holding me tight, trying to hold me.” This does not constitute substantial evidence. All of the other witnesses to plaintiff’s arrest testified as to the elbowing incident in one manner or another. Plaintiff never denied that Deputy Simpson was elbowed. Rather, plaintiff testified the elbowing may have occurred but he could not recall whether it did. Substantial evidence is that which is of ponderable legal significance which is reasonable in nature, credible, and of solid value. (Sav-on Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 328; Of sevit v. Trustees of Cal. State University and Colleges (1978) 21 Cal.3d 763, 773, fn. 9.) And in assessing whether there is substantial evidence, we review the record as a whole. (Sav-on Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 328; Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 51.) Plaintiff’s inability to remember does not rise to the level of substantial evidence. Had plaintiff outright denied Deputy Simpson was elbowed, the issue would be different. Under those circumstances, plaintiff’s testimony by itself would have indicated he was subject to a carotid choke hold while complying with an order to put his hands behind his back—an act a jury could reasonably find to be of excessive force under virtually all conceivable circumstances.
The question then remains whether Deputy Simpson acted with excessive force by applying the carotid restraint following the assaultive behavior in resistance to being handcuffed. It should be noted that, at the time Deputy Simpson was elbowed, plaintiff had not been subject to a pat down search for weapons. Deputy Simpson had responded to a gang fight radio call in the middle of the street. Plaintiff and Mr. Howell were in the middle of the street yelling and each other at 5 a.m. Mr. Howell had blood on his hands and face. Plaintiff and Mr. Howell, who admittedly had been out drinking, were so involved in their argument they did not respond to Ms. Lopez. Neither of the two noticed the deputies as they approached them. Plaintiff had a.255 blood alcohol level when his urine was tested at the hospital. Deputy Simpson attempted to handcuff plaintiff. Thereupon, plaintiff resisted and elbowed Deputy Simpson. Consistent with the constitutional restrictions on the seizure of a person and the consistent use of force Deputy Simpson was allowed to use force that was reasonable after considering a number of factors including: the severity of the crime; whether the arrestee poses an immediate threat to the safety of the deputies; and whether the suspect is resisting arrest. (Graham v. Connor, supra, 490 U.S. at p. 396; Davis v. City of Las Vegas (9th Cir. 2007) 478 F.3d 1048, 1053-1054.) The foregoing circumstances made it objectively reasonable for Deputy Simpson to apply force. Deputy Simpson had a duty to end the immediate threat to himself, the other deputies and the public. It was in that context that Deputy Simpson initially attempted successfully or unsuccessfully to apply the carotid restraint on plaintiff.
Moreover, the danger did not end with the initial application but escalated in a ground fight in which Deputy Simpson reapplied the carotid restraint. The evidence is not clear as to how plaintiff and Deputy Simpson ended up on the ground. Every witness, except plaintiff, testified that he ended up on top at this stage of the melee. Plaintiff testified that he was unconscious. It is not disputed that, this application of the carotid restraint occurred when the two men were on the ground while: plaintiff was on top of Deputy Simpson: Deputy Simpson was armed with two loaded guns; Deputy Simpson was temporarily blinded by pepper spray; and plaintiff’s arms were moving and his legs were kicking. Several witnesses testified that, during the ground fight, the deputies were trying to get plaintiff to stop resisting, give up his hands, calm down, or do what he was ordered to do. More importantly, the carotid restraint was only applied after plaintiff struck Deputy Simpson and after the two ended up on the ground in a struggle. Viewed objectively, Deputy Simpson’s use of force was not excessive. (See Carleton v. Superior Court (1985) 170 Cal.App.3d 1182, 1190-1191 [carotid restraint applied against a suspect aggressively resisting police efforts requiring six officers to control him was not excessive].) Due to the exigent situation, the trial court correctly determined that no reasonable jury could conclude that plaintiff was so under control that he did not pose an immediate threat or danger to the deputies and the public.
Moreover, the result is no different because Mr. Sullivan testified that a carotid restraint was excessive force. No doubt, Mr. Sullivan identified alternative means to subdue the suspect. In some cases, the availability of alternative methods of subduing a suspect may be a factor to consider. (Smith v. City of Hemet (9th Cir. 2005) 394 F.3d 689, 701; Neal-Lomax v. Las Vegas Metropolitan Police Dept. (D.Nev. 2008) 574 F.Supp.2d 1170, 1184.) However, in determining whether the force was excessive Mr. Sullivan admitted on cross-examination that he was unaware of a number of key facts. The key factor in this case was that witnesses (including Ms. Lopez) stated that plaintiff elbowed Deputy Simpson while resisting being handcuffed. Thus, Mr. Sullivan’s opinion was not offered in the context of the particular application of force used to affect plaintiff’s seizure. Rather, it was based on a general statement that it is excessive to use a carotid restraint as an initial response to resisting. The Courts of Appeal have held “[T]he expert opinion may not be based on assumptions of fact that are without evidentiary support or based on factors that are speculative or conjectural, for then the opinion has no evidentiary value and does not assist the trier of fact. [Citation.]” (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510; see also Brown v. Ransweiler, supra, 171 Cal.App.4th at p. 530.) The factors set forth by the United States Supreme Court in assessing an excessive force claim in Graham v. Connor, supra, 490 U.S. at pages 396-397 “are not to be considered in a vacuum but only in relation to the amount of forced used” in an arrest or detention scenario. (Chew v. Gates (9th Cir. 1994) 27 F.3d 1432, 1441; Davis v. City of Las Vegas, supra, 478 F.3d at pp. 1054-1055.)
Here, even construing the facts in a manner most favorable to plaintiff’s excessive force claim, the evidence showed the carotid restraints was applied in a rapidly escalating situation which posed a threat to the deputies and the surrounding public: the radio dispatch which indicated a possible gang fight was in progress; plaintiff’s resistance to being handcuffed; and plaintiff struck Deputy Simpson. The continued use of the carotid artery hold resulted from the fact plaintiff and Deputy Simpson were on the ground. They fell to the ground because of plaintiff’s resistance. Deputy Simpson was pepper sprayed, again because of plaintiff’s failure to cooperate. And throughout this series of events, plaintiff had not been searched for weapons. Deputy Simpson, who was temporarily blinded by the pepper spray, had two handguns in his possession and he was fearful they could be grabbed during the struggle. Mr. Sullivan admitted that a carotid restraint is permissible under the sheriff’s policy where a deputy has been assaulted. Mr. Sullivan also admitted he had not viewed Ms. Lopez’s videotaped interview describing the assault on Deputy Simpson. Mr. Sullivan’s opinion was insufficient to support a verdict in plaintiff’s favor against Deputy Simpson for excessive force. The directed verdict motion was properly granted because there was no excessive force. For that reason, we need not address plaintiff’s alternative claims as to why the trial court erred in directing the verdict, i.e., the absence of medical evidence as to a physical injury.
B. Costs
Plaintiff contends the trial court abused its discretion in awarding costs of suit to Deputy Simpson. Plaintiff argues there is a unity of interests exists between the defendants and there was no evidence that Deputy Simpson actually incurred any costs. As an alternative argument, plaintiff asserts the trial court should not have allowed costs for: a discovery referee; mediation; expenses; computerized document control; expenses incurred during trial; storing exhibits; and the expenses incurred for an on-site technician and equipment utilized presenting exhibits to the jury.
The right to recover costs is purely statutory. (Davis v. KGO-T.V. (1998) 17 Cal.4th 436, 439; Boonyarit v. Payless Shoesource, Inc. (2006) 145 Cal.App.4th 1188, 1192.) Code of Civil Procedure section 1032, subdivision (b) provides, “Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” Code of Civil Procedure section 1032, subdivision (a)(4) defines prevailing parties who are entitled to an award of costs as a matter of right as: a party with a net monetary recovery; a defendant in whose favor a dismissal is entered; a defendant where neither side obtains any relief; or a defendant as against any plaintiff who does not secure any relief. If a party meets the statutory definition of a prevailing party, the costs are mandatory unless a different statute provides otherwise. (Chinn v. KMR Property Management (2008) 166 Cal.App.4th 175, 188; Wakefield v. Bohlin (2006) 145 Cal.App.4th 963, 976, 978.)
Plaintiff did not recover any relief against Deputy Simpson. Deputy Simpson argues he is a prevailing party. (Code Civ. Proc., § 1032, subd. (a)(4).) According to Deputy Simpson, he fits the statutory definition and is entitled to his costs as a matter of right. (Wakefield v. Bohlin, supra, 145 Cal.App.4th at pp. 976-977; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 128.) Plaintiff claims, however, that Code of Civil Procedure section 1032, subdivision (a)(4) is inapplicable to this case because of the “unity of interest” doctrine. According to plaintiff, Deputy Simpson’s interests were unified with the other deputies in that they: were represented by the same attorney; filed a joint answer; conducted joint discovery; and joined in the same motions.
Citing Wakefield v. Bohlin, supra, 145 Cal.App.4th at pages 976-977 and Smith v. Circle P Ranch Co. (1978) 87 Cal.App.3d 267, 271-272, plaintiff contends that Deputy Simpson was not entitled to costs as a matter of right. Rather, according to plaintiff the trial court had discretion to apportion the costs. Deputy Simpson counters that the “unity of interest” doctrine is predicated upon language in prior version of Code of Civil Procedure section 1032 which was not retained by the Legislature. Decisional authority has stated, notwithstanding the current language in Code of Civil Procedure section 1032, the trial court has discretion to deny costs to a party who is jointly represented by and presents a unified defense during trial. (See Wakefield v. Bohlin, supra, 145 Cal.App.4th at pp. 976-977; Textron Financial Corp. v. National Union Fire Ins. Co. (2004) 118 Cal.App.4th 1061, 1075; Slavin v. Fink (1994) 25 Cal.App.4th 722, 726 & fn. 2 citing Smith v. Circle P. Ranch Co., supra, 87 Cal.App.3d at p. 271 [relying on unity of interest language in pre-1986 version of Code Civ. Proc. § 1032, subd. (b)]; see also Webber v. Inland Empire Investments (1999) 74 Cal.App.4th 884, 920.) In any event, even under the former law, the unity of interest doctrine only makes the allowance or disallowance of an award to a prevailing defendant a discretionary matter for the trial court. (Textron Financial Corp. v. National Union Fire Ins. Co., supra, 118 Cal.App.4th at p. 1075; Smith v. Circle P. Ranch Co., supra, 87 Cal.App.3d at p. 272.) Plaintiff has cited no authority which requires the trial court to apportion the costs.
The record does not support plaintiff’s assertion that the highly experienced trial court failed to exercise its discretion in this case. The trial court was well aware of the issues in this case including the joint representation and defense. The trial court stated that it was aware of plaintiff’s claim that the defendants had joint interests and invited argument on the issue. The trial court implicitly found that the defendants had individual interests and, therefore, there was no unity of interest issue with Deputy Simpson, who obtained a directed verdict, and the other two deputies. The trial court was in the best position to determine whether the costs jointly incurred by Deputy Simpson and the other deputies throughout the proceedings were reasonably necessary. Under the applicable review standard, we cannot conclude that the trial court abused its discretion in determining that the costs should not be apportioned.
Plaintiff also challenges the cost award on the ground that Deputy Simpson did not present any evidence that he actually incurred any expenses. We disagree. The record contains sufficient evidence that costs were incurred to defend the action.
Plaintiff also asserts that the trial court should have taxed costs incurred for expenses: a discovery referee; mediation; computerized document control during trial; storing exhibits; and an on-site technician and equipment utilized presenting exhibits to the jury. As a general rule, the costs of a civil action include the expenses of litigation, excluding attorney fees. (Olson v. Automobile Club of Southern California (2008) 42 Cal.4th 1142, 1147 ; Davis v. KGO-T.V., supra, 17 Cal.4th at p. 439.) The items allowable as costs are set forth in Code of Civil Procedure section 1033.5, subdivisions (a) and (b). Code of Civil Procedure section 1033.5, subdivision (c)(4), however, allows the trial court at its discretion to allow any costs not specifically mentioned in the section. Plaintiff has not cited any authority which shows that the costs at issue were not recoverable as a matter of law. The trial court acted within its discretionary powers under Code of Civil Procedure section 1033.5, subdivision (c)(4) to allow the referee fees as an item of costs. (Winston Square Homeowner’s Assn. v. Centex West (1989) 213 Cal.App.3d 282, 293; see also Trend Homes, Inc. v. Superior Court (2005) 131 Cal.App.4th 950, 961-962 [referee fees]; DeBlase v. Superior Court (1996) 41 Cal.App.4th 1279, 1285 [referee fees]; Most Worshipful Sons of Light Grand Lodge v. Sons of Light Lodge No. 9 (1956) 140 Cal.App.2d 833, 834-835 [referee fees]).) Likewise, the mediation fees are recoverable under the court’s discretionary power. (Code Civ. Proc., § 1033.5, subd. (c)(4); Gibson v. Bobroff (1996) 49 Cal.App.4th 1202, 1209 & fn. 7.)
Finally, contrary to plaintiff’s contentions otherwise, Science Applications Internat. Corp. v. Superior Court (1995) 39 Cal.App.4th 1095, 1102-1106 does not establish the trial court abused its discretion in allowing costs for computerized document control, storing exhibits, an on-site technician and the expense of utilizing equipment for presenting exhibits to the jury. We note first that Science Applications was not followed by the court in El Dorado Meat Co. v. Yosemite Meat and Locker Service, Inc. (2007) 150 Cal.App.4th 612, 616-620. El Dorado Meat Co. concluded that, even assuming the costs are not allowable as models and blowups (Code Civ. Proc., § 1033.5, subd. (a)(12)), their recovery including labor to support the displays to the jury was a discretionary matter for the court. (El Dorado Meat Co. v. Yosemite Meat and Locker Service, Inc., supra, 150 Cal.App.4th at pp. 617-618.) We agree with El Dorado that the costs are discretionary. There is no evidence establishing that the costs associated with the exhibits, including storage, equipment, and support staff was unreasonably high such that the trial court abused its discretion in denying the motion to tax.
IV. DISPOSTION
The judgment is affirmed. Defendant, Thomas Simpson, is awarded his costs on appeal from plaintiff, Bill Henderson.
We concur: ARMSTRONG J., KRIEGLER, J.