California Court of Appeals, Fourth District, First Division
APPEAL from a judgment of the Superior Court of Riverside County No. RIC523816, Sherrill A. Ellsworth, Judge. Affirmed.
[Copyrighted Material Omitted]
Purcell Law and Chris Purcell for Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Arthur K. Cunningham; Arias & Lockwood and Christopher D. Lockwood for Defendants and Respondents.
Lois Jean Green filed an action for violation of civil rights and the Fourteenth Amendment under 42 United States Code section 1983 (section 1983) and wrongful death under California law against the County of Riverside, and Riverside County Deputy Sheriffs Christopher Cazarez, Mark Janecka and David Dietrich, arising out of the death of her son, Lawrence Rosenthal, while in the officers' custody. After an 18-day trial, the jury returned a special verdict finding that only Cazarez used unreasonable force, but that force was not a substantial factor in causing Rosenthal's death. The court entered judgment against Green and awarded costs of suit to defendants.
Green contends the trial court (1) committed prejudicial error in admitting evidence that Rosenthal was under the influence of cocaine, (2) erred in refusing to instruct the jury on negligence, and (3) improperly awarded paralegal fees as costs. Finding no merit in Green's contentions, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
"As required by the rules of appellate procedure, we state the facts in the light most favorable to the judgment." (Orthopedic Systems, Inc. v. Schlein (2011) 202 Cal.App.4th 529, 532, fn. 1 [135 Cal.Rptr.3d 200].)
In August 2008, Anthony Padilla, a licensed and armed security guard at Valle Vista Assembly of God Church in Hemet, California, saw Rosenthal, clad only in boxer shorts, running in place in sprinklers at the church and saying he was on fire and attempting to cool off in the water. Thinking that someone might get hurt, Padilla called 911 to get medical help for the confused and distraught Rosenthal.
Deputy Cazarez arrived while Padilla was still talking to the 911 operator. Padilla told Cazarez that Rosenthal was not in his right mind, and Cazarez saw Rosenthal running around and making erratic movements. Concerned for his own safety and for the safety of others nearby and believing that Rosenthal might be under the influence of drugs, Cazarez approached Rosenthal and tried to calm him down; despite Cazarez's effort, Rosenthal's erratic behavior continued, and Cazarez became concerned that he might run out onto the adjoining state highway where traffic was proceeding at approximately 45 to 50 miles per hour. After Rosenthal began yelling that a bomb would go off and became more agitated when the sprinklers stopped spraying, Cazarez called for backup.
When Deputies Janecka and Dietrich arrived, Rosenthal turned toward their vehicle, yelled at them and continued his erratic movements. Displaying their batons, the three officers approached Rosenthal, each from a different side. Because the officers believed Rosenthal was under the influence of drugs, proper police practices required them to detain him, and Cazarez felt it necessary to take Rosenthal into custody for a mental status evaluation under Welfare and Institutions Code section 5150.
The deputies ordered Rosenthal to get on the ground, but he did not comply. Instead, Rosenthal took a fighting stance and moved toward Janecka and Dietrich. Cazarez yelled "Taser, Taser, Taser, " but Rosenthal kept moving toward Janecka and Dietrich.
Cazarez used the Taser on Rosenthal; Rosenthal went to the ground, but after about five seconds he tried to get ...