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Bender v. County of Los Angeles

California Court of Appeals, Second District, Eighth Division

July 9, 2013

NOEL BENDER, Plaintiff and Respondent,
COUNTY OF LOS ANGELES et al., Defendants and Appellants.

APPEAL from a judgment of the Superior Court for the County Super. Ct. No. BC 440862 of Los Angeles. Richard L. Fruin, Jr., Judge.

Lawrence Beach Allen & Choi, David D. Lawrence and Jin S. Choi for Defendants and Appellants.

Law Offices of Goldberg & Gage, Bradley C. Gage, Terry M. Goldberg, Milad Sadr; Benedon & Serlin, Gerald M. Serlin and Douglas G. Benedon for Plaintiff and Respondent.



The Bane Act (Civ. Code, § 52.1) authorizes a civil action “against anyone who interferes, or tries to do so, by threats, intimidation, or coercion, with an individual’s exercise or enjoyment of rights secured by federal or state law.” (Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 331 (Jones).) Plaintiff Noel Bender brought such a lawsuit based on his unlawful arrest and the beating administered by sheriff’s deputies during that arrest, while he was in handcuffs and not resisting arrest. The jury found a Bane Act violation.

Defendants, the County of Los Angeles and Sheriff’s Department Deputy Scott Sorrow, contend the Bane Act does not apply when a Fourth Amendment search and seizure violation is accompanied by the use of excessive force, because “coercion is inherent” in any unlawful seizure. In an excessive force case, they say, the Bane Act requires a showing that the “threats, intimidation, or coercion” caused a violation of a separate and distinct constitutional right in addition to the Fourth Amendment violation. We disagree.

Defendants also contend a new trial should have been granted based on errors in evidentiary rulings and excessive damages, and they challenge the amount of the attorney fee award, the award of expert witness fees under Code of Civil Procedure section 998, and the costs awarded for trial technology and presentation. We find no error and affirm the judgment.


The evidence presented at trial established the following facts.

Plaintiff lived at and managed an apartment complex in Palmdale. Some tenants of the building believed the police were “harassing people” in the complex because a police officer had been shot there earlier in the year. The tenants were mostly African-American and Hispanic. Earlier on the day of the events in this case, Deputy Sorrow, according to one tenant, drove his patrol car to the complex, opened the door and yelled “[the N word], ” and drove off when people started running.

On the evening of August 26, 2009, at about 10:30 p.m., plaintiff returned to the apartment complex after his college classes. He attended to a few matters in the complex, then went to his apartment. About 30 minutes later, he came out to turn off the water to the pool and to make sure the front gate was secured. He told a couple of children who were still playing outside with a basketball to go home. Then, Deputies Sorrow, Omar Chavez and Ray Hicks came in through the front gate.

The three deputies went up the stairs inside the gate. Deputies Chavez and Hicks came back down the stairs with two African-Americans in handcuffs, a man and a woman in their 20’s. The man had been drinking alcohol and the woman had been smoking marijuana. While Deputies Hicks and Chavez were making the arrests, plaintiff heard a glass break. Deputy Sorrow was on the stairs and began picking up the broken glass. Plaintiff said, “Don’t worry, I’ll pick that up.” Deputy Sorrow came down the stairs and approached plaintiff, saying, “you haven’t been fired yet.” Then, Deputy Sorrow accused plaintiff of “smoking with those people, ” and plaintiff replied he did not smoke marijuana and had not been smoking. (According to Deputy Sorrow, plaintiff asked why the deputies were harassing the tenants in his apartment complex.)

Deputy Sorrow asked plaintiff his name, and when plaintiff gave his name, Deputy Sorrow said, “Shut the [f---] up.” Then, Deputy Sorrow again asked for plaintiff’s name. Plaintiff repeated his name, and said he had been “trying to work with Deputy Phillips to clean up the building, and that if it would help [plaintiff] could give [Deputy Sorrow] [his] employer’s name, too.” (The apartment complex had been participating in a “Partners Against Crime” program and Deputy Phillips was assigned to the building as a part of that program.) Deputy Sorrow responded by saying Deputy Phillips had told him to arrest plaintiff. Plaintiff had never actually met Deputy Phillips, and was “shocked” to hear Deputy Phillips had said to arrest him. He asked Deputy Sorrow, in “a little bit nervous but a regular tone of voice, ” why, “and [Deputy Sorrow] said because I was protecting those – he said, you’re protecting these [N word].”

Then, according to plaintiff and a number of other witnesses, Deputy Sorrow took plaintiff’s hands, pulled them behind his back and handcuffed him, saying plaintiff was under arrest. Plaintiff did not resist in any way. Plaintiff again asked why he was being arrested, but Deputy Sorrow said nothing. Deputy Sorrow held plaintiff’s right biceps and walked him through the gate of the apartment complex and over toward the patrol car. They stopped on the near side of the patrol car and stood there for a few seconds. Plaintiff looked to his left and saw Deputies Hicks and Chavez on the other side of the patrol car, with the two African-Americans they had arrested against the car. When he looked back to his right, Deputy Sorrow had a can of pepper spray and sprayed plaintiff in the face. Witnesses saw plaintiff yelling in pain.

Deputy Chavez ran around the patrol car and he and Deputy Sorrow slammed plaintiff to the ground. Plaintiff was in handcuffs, so he could not break the fall and went down on his face. Deputies Sorrow and Chavez started “kneeing and kicking and beating him while he was on the ground.” Deputy Sorrow was kicking him in the arms and ribs. Plaintiff was kicked in the side eight to ten times, and “there was what felt like a knee in the back of my neck, pressing my face to the ground. And while I was being held there by the back of my neck, I was being struck on the top, back part of my head.” Deputy Chavez was on plaintiff’s lower back, and admitted hitting plaintiff multiple times. One of the deputies hit plaintiff in the head with a flashlight.

During the beating, Deputy Sorrow said, “F---ing [N word] lover, you’re getting what you deserve.” Even though plaintiff at no time attempted to fight or struggle with the deputies, Deputy Sorrow yelled, “Stop fighting.” During the beating, witnesses heard plaintiff screaming in pain and pleading for the deputies to stop. After the beating stopped, plaintiff “thought it was over with, and I opened my eyes and I was sprayed across both of my eyes, and then it was sprayed up to my nostrils and sprayed up my nose. And when I opened my mouth to breath, it was pressed against my lips and sprayed into my mouth.” Plaintiff lost consciousness.

After the beating, plaintiff looked “bloody and just beat up. He had red marks all over.” One witness said, “I just know he was, got his ass whooped, that’s it. And it was very bad, that’s all I know.” During the beating, plaintiff’s glasses were knocked from his head, and afterward Deputy Sorrow intentionally crushed plaintiff’s glasses with the heel of his foot.

The deputies then “picked [plaintiff] up off the ground from his handcuffs on the back lifting him up.” They put him in the back of the patrol car, and Sergeant Kevin Turrill interviewed him on videotape. No Miranda[1] warnings were ever given. Plaintiff was in a lot of pain. “My ribs hurt really bad. My face burned really bad. I was – I couldn’t feel my hands. My wrists were hurting really bad.”

Plaintiff was told he would not be allowed to go to the hospital until he was interviewed. The paramedics at the scene irrigated plaintiff’s eyes and advised the police that plaintiff should be taken to the hospital for further evaluation; they wanted to do other treatments at the scene, but Sergeant Turrill “refused to allow them to do certain tasks.” Plaintiff told a paramedic he could not feel his hands, and during the interview in the patrol car, plaintiff told the interviewer he was in pain from the handcuffs, but that “it’s okay.” No one loosened the handcuffs to relieve the pain or checked to see if they were too tight.

Plaintiff was cooperative with Sergeant Turrill at all times, on tape and off tape. After the interview, plaintiff was taken to the hospital where he was handcuffed to a chair. After an hour or so, a nurse came and wiped his face; he was X-rayed and given Vicodin for his pain. The doctor said he could not tell if any ribs were broken, and released plaintiff to jail.

Plaintiff was taken to the Palmdale police station and interviewed again on videotape by Lieutenant Paul Clay. In response to Clay’s questions, plaintiff said he had had nothing to drink that night, and did not use illegal or prescription drugs. He described what had happened, and said he did not resist the deputies in any way and was not aggressive toward any deputy. He said there were witnesses, he “was just arrested and beaten by [Deputy Sorrow] without provocation, ” and he was “scared of that guy.”

Both videotaped interviews were played for the jury at the trial of this case.

While plaintiff was in jail, he continued to have pain in his face and eyes from the pepper spray, and asked for medical attention to take care of the burning sensation, but no one provided any medical treatment. After two days, plaintiff used a carton of milk to try to wash his face.

While awaiting his arraignment, plaintiff was kept in a holding cell with 30 other prisoners and was humiliated when using the cell’s toilet in front of 30 other people. After his arraignment, he was placed in a medical ward with 20 or 25 other prisoners. On one occasion, they were all stripped naked and forced to lie face down on the ground for two hours, which was a painful, humiliating and degrading experience. After obtaining bail, plaintiff saw a doctor, who said in all likelihood plaintiff had nerve damage to his hand, and that was why he could not feel his thumb; the doctor also said he “could have possibly had fractures to [his] ribs....”

Plaintiff was prosecuted and acquitted of all charges at his criminal trial. Meanwhile, plaintiff filed this civil action against Deputies Sorrow, Chavez and Hicks and the County of Los Angeles. He alleged causes of action for assault and battery, intentional infliction of emotional distress, and false arrest and false imprisonment against the three deputies, and causes of action for violation of the Bane Act and of Civil Code section 51.7 (the Ralph Act)[2] against all defendants.

In addition to the facts just recited, at trial plaintiff produced an expert witness on police policy and procedure. Lieutenant Otis Dobine, who worked for the Los Angeles Police Department in various capacities from 1969 to 2007, opined Deputy Sorrow was not justified in detaining plaintiff for an investigation because he lacked reasonable suspicion plaintiff was involved in any criminal activity; Deputy Sorrow’s conduct restraining plaintiff in the courtyard and taking him outside constituted an arrest; there was no justification for the arrest because Deputy Sorrow himself acknowledged plaintiff had committed no crime; Deputy Sorrow’s use of force during plaintiff’s unlawful arrest was improper; even if plaintiff had been properly detained for an investigation, the violent use of force was not justified because plaintiff was not resisting; it was a violation of police policy for Deputy Sorrow to have used the “N” word; and Deputy Sorrow’s conduct should have been investigated. Lieutenant Dobine also opined Deputy Sorrow had yelled “stop fighting” during the incident as a cover-up for beating a man who was not resisting.

Medical experts for both sides testified about plaintiff’s injuries, and plaintiff presented testimony from two witnesses about other incidents involving Deputy Sorrow.

The jury rendered a special verdict for plaintiff against Deputy Sorrow and the County of Los Angeles. Plaintiff did not prevail on his claims against Deputies Chavez and Hicks. The jury found Deputy Sorrow was acting within the course and scope of his employment during the incident; he lacked probable cause to believe plaintiff had committed a crime; he used unreasonable force in detaining or arresting plaintiff; he violated the Bane Act; his conduct was outrageous; he intended to cause plaintiff emotional distress; and plaintiff suffered severe emotional distress. As to the Ralph Act, the jury found Deputy Sorrow threatened or committed violent acts against plaintiff, but Deputy Sorrow’s perception of plaintiff’s association with African-Americans was not a substantial factor for his conduct.

The jury awarded past economic damages of $4, 500; past and present noneconomic damages of $495, 000; and future noneconomic damages of $28, 000. In addition, the jury found by clear and convincing evidence that Deputy Sorrow acted with malice, oppression, or reckless disregard for the safety of plaintiff, and awarded punitive damages of $6, 000.

Judgment was entered on the jury’s verdict, and the trial court denied defendants’ motions for judgment notwithstanding the verdict and for a new trial, observing: “The court agrees with the jury that the plaintiff was arrested without probable cause and then was beaten notwithstanding he offered no resistance. The comments Deputy Sorrow made to plaintiff before arresting him and his conduct reflect animus toward him and by extension to the persons in the ...

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