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Nunez v. Santos

United States District Court, N.D. California, San Jose Division

December 13, 2019

TONY NUNEZ and THE ESTATE OF ANTHONY NUNEZ THROUGH ITS PERSONAL REPRESENTATIVE SANDY SANCHEZ Plaintiffs,
v.
MICHAEL SANTOS and ANTHONY VIZZUSI, et al., Defendants.

          ORDER DENYING DEFENDANTS' POST-TRIAL MOTIONS Re: Dkt. No. 193

          LUCY H. KOH UNITED STATES DISTRICT JUDGE

         A jury trial commenced in this case on June 17, 2019. On June 25, 2019, at the close of the defense case and prior to closing arguments, Defendants Michael Santos and Anthony Vizzusi (collectively, “Defendants”) moved for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(a). The Court denied the motion and allowed the entire case to go to the jury. On July 2, 2019, the jury returned a verdict in favor of Plaintiffs as to Plaintiffs' excessive force and negligence claims, and in favor of Defendants as to Plaintiffs' right to familial relationship claim.

         Following the verdict, Defendants renewed their motion for judgment as a matter of law in accordance with Federal Rule of Civil Procedure 50(b) and included an alternative motion for a new trial or remittitur under Federal Rule of Civil Procedure 59. These motions are presently before the Court. Having considered the submissions of the parties, the relevant law, and the record in this case, the Court DENIES the motion for judgment as a matter of law and the motion for a new trial or remittitur.

         I. BACKGROUND

         This case arises out of an incident on July 4, 2016 in which Anthony Nunez (“Nunez”) was fatally shot by two officers of the San Jose Police Department (“SJPD”). The following basic facts were established at trial, and are undisputed. On the afternoon of July 4, 2016, officers of the SJPD responded to a priority service call at 994 Feller Avenue, San Jose, California (“994 Feller Avenue”), for a man with a gun who was possibly suicidal. ECF No. 185 at 48-49. Among the responding officers were Officers Michael Santos (“Officer Santos”) and Anthony Vizzusi (“Officer Vizzusi”). Id. at 49. Before the police arrived, Nunez shot himself in the head with a gun but was not killed. Id. Then, at some point after the police arrived but before they were able to enter the house at 994 Feller Avenue, Nunez stepped out of the house and onto the porch with a gun. ECF No. 197 at 8; ECF No. 193 at 2. Nunez then retreated into the house. ECF No. 197 at 8; ECF No. 193 at 2. Later, Nunez returned to the porch with the gun on or near his person. ECF No. 197 at 8; ECF No. 193 at 2. Defendants Santos and Vizzusi then shot Nunez and killed him. ECF No. 185 at 49.

         A. Procedural History

         1. Pre-trial Proceedings

         On July 7, 2017, Tony Nunez-the decedent's father-and the Estate of Anthony Nunez by and through its personal representative Sandy Sanchez (collectively, “Plaintiffs”) filed suit against the City of San Jose, Officer Santos, Officer Vizzusi, and various Doe SJPD officers. ECF No. 1. Plaintiffs amended their complaint on January 12, 2018. ECF No. 14. The First Amended Complaint (“FAC”) contains five claims: (1) a claim under 42 U.S.C. § 1983 and the Fourth Amendment to the United States Constitution for excessive force; (2) a claim under 42 U.S.C. § 1983 and the Fourth Amendment to the United States Constitution for denial of medical care; (3) a claim under 42 U.S.C. § 1983 and the Fourteenth Amendment to the United States Constitution for violation of his right to familial relationship; (4) a claim under 42 U.S.C. § 1983 for municipal liability for unconstitutional custom or policy; and (5) a wrongful death claim under California state law, see Cal. Code Civ. P. § 377.60.

         Defendants filed a motion for summary judgment as to all claims in the FAC on March 7, 2019. ECF No. 66. The Court granted the motion as to claims (2) and (4) for denial of medical care and municipal liability, respectively. ECF No. 82 at 32. The Court otherwise denied the motion for summary judgment. Id. In so doing, the Court found there was a genuine dispute of material fact as to whether Officers Santos and Vizzusi were entitled to qualified immunity for using deadly force against Nunez. Id. at 26.

         2. Trial

         Trial commenced on June 17, 2019. ECF No. 128. At trial, Plaintiff Tony Nunez asserted two claims against Defendants Santos and Vizzusi: (1) a § 1983 claim for violation of Plaintiff Tony Nunez's constitutional right to familial relationship; and (2) a wrongful death claim under California state law that Defendants negligently and wrongfully caused Nunez's death. Defendants denied those claims and asserted two defenses: (1) the defense of self and others, and (2) contributory negligence on the part of Nunez as the cause of his own death.

         Plaintiff Estate of Anthony Nunez by and through its personal representative Sandy Sanchez (“Plaintiff Estate”) asserted a § 1983 claim against Defendants for the use of excessive force against Nunez. Defendants Michael Santos and Anthony Vizzusi denied this claim and asserted the defense of self and others.

         Plaintiffs completed their case-in-chief on June 24, 2019, ECF No. 188 at 793, and Defendants completed their case-in-chief on June 25, 2019, ECF No. 189. On June 25, 2019, at the close of all the evidence and prior to closing arguments, Defendants Michael Santos and Anthony Vizzusi (collectively, “Defendants”) moved for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(a). ECF No. 189 at 1174-1189. Specifically, Defendants argued they were entitled to qualified immunity from the excessive force claim because “there is . . . undisputed evidence that Nunez . . . raised and pointed his gun at officers” and that his doing so constituted “an immediate threat to the safety of officers or others” that justified the use of deadly force. ECF No. 189 at 1175, 1179. The Court denied the motion and allowed the entire case to go to the jury.

         On July 2, 2019, the jury returned the following verdict. First, the jury found in favor of Plaintiff Estate as to its excessive force claim in the amount of $2.6 million. ECF No. 151 (“Verdict Form”) at 2-3, 4. Second, the jury found in favor of Plaintiff Tony Nunez as to his wrongful death claim in the amount of $50, 000. Id. at 2-3, 4. With regard to Defendants' contributory negligence defense, the jury found that Nunez was negligent in causing his own death and that he caused 10% of the harm in Plaintiff Tony Nunez's wrongful death claim. Id. at 4. Because the jury found Nunez 10% negligent, the Court reduced the $50, 000 award to Plaintiff Tony Nunez by 10% to $45, 000. ECF No. 178. Finally, the jury found in favor of Defendants as to Plaintiff Tony Nunez's right to familial relationship claim. Verdict Form at 2-3.

         The verdict form also contained questions to aid the Court in its qualified immunity determination. Of relevance here, the jury answered “No” in response to the following questions: (1) “Was Decedent Anthony Nunez pointing a gun at officers at the time Defendant Michael Santos shot Decedent Anthony Nunez?” and (2) “Was Decedent Anthony Nunez pointing a gun at officers at the time Defendant Anthony Vizzusi shot Decedent Anthony Nunez?” Id. at 2-3.

         3. The Instant Motions

         On July 30, 2019, Defendants filed post-trial motions. ECF No. 193 (“Def. Mot.”). First, pursuant to Federal Rule of Civil Procedure 50(b), Defendants renew their motion for judgment as a matter of law as to the excessive force claim on the grounds that Defendants' use of deadly force did not rise to the level of excessive force and that even if it did, the Defendants are entitled to qualified immunity. Id. at 8; ECF No. 189 at 1181-82. Second, pursuant to Federal Rule of Civil Procedure 59, Defendants seek “a new trial on liability and/or a remittitur because the jury's verdict and award were against the weight of the evidence, and the amount of damages awarded to Plaintiff Estate is excessive.” Def. Mot. at 2. As to damages, the Rule 59 motion purports to challenge only the amount of damages awarded to Plaintiff Estate-that is, the award for the excessive force claim-and not the amount of damages awarded to Plaintiff Tony Nunez for the wrongful death claim.

         Plaintiffs filed their opposition on August 5, 2019, ECF No. 197, and Defendants filed their reply on August 8, 2019, ECF No. 200.

         B. The Evidence at Trial

         Because Defendants' motions require the Court to consider the sufficiency of the evidence in support of the jury's verdict in favor of Plaintiffs, the Court briefly summarizes the evidence at trial. The Court focuses on the evidence relevant to the instant motions.

         1. Juan Cervantes

         Plaintiffs' first witness was Juan Cervantes. See ECF No. 186, Tr. at 242. Cervantes was Nunez's cousin. Id. at 289. At the time of the incident, Cervantes lived with Nunez and several other individuals at 994 Feller Avenue-the house where the shooting took place. Id. at 287. Specifically, as on July 4th, 2016, the following individuals lived at 994 Feller Avenue: Cervantes, Nunez, Cervantes's aunt Sandy Sanchez and her husband Jesse and their daughter Anissa, Cervantes's cousin Jose, and Cervantes's cousin Jesse. Id. at 288. Cervantes said that he had been living at 994 Feller Avenue with Nunez for “about six months.” Id. at 289. Cervantes and Nunez also worked at the same grocery store, Mi Pueblo. Id. at 293.

         Cervantes testified that, “in the days leading up to July 4th, ” Nunez “didn't want to eat right, he didn't want to go to work, he was very sad.” Id. at 300. According to Cervantes, Nunez had missed work and had told Cervantes “that he wanted to kill himself” and “that he wanted to die.” Id. at 303-04, 329. The reason for Nunez's sadness, said Cervantes, was that several family members living at 994 Feller Avenue left San Jose for a family reunion that Nunez could not attend. Id. at 298. According to Cervantes, Nunez had previously been “very active, a very friendly and happy person.” Id. at 300.

         Cervantes testified that, on one of the days leading up to July 4th, Cervantes returned home from work and found that “the lock on [his] Aunt Sandy's door, it was broken.” Id. at 304. He said that “it looked like somebody was searching through” the room. Id. at 304.

         On July 4th, 2016, Cervantes his cousin Jose-who also worked at Mi Pueblo, id. at 293- convinced Nunez to go to work. Id. at 309. According to Cervantes, that day, Nunez was “going to move to a different department . . ., but it turned out he didn't have the correct shoes.” Id. at 310. Nunez was therefore sent home. Id. Cervantes testified that, at some point after Nunez left, Nunez's girlfriend found Cervantes at work. Id. at 310. She told him that “she heard something like a firework go off at” the 994 Feller Avenue house. Id. at 310. Nunez's girlfriend also told Cervantes that Nunez “might have shot himself.” Id. at 311.

         This report led Cervantes to go to home to 994 Feller Avenue, where he saw blood “both inside and outside the house.” Id. at 311. Cervantes said he found Nunez in his Aunt Sandy's bedroom, “laying on the bed.” Id. at 311-12. Cervantes said that Nunez was “facing down on the bed.” Id. at 310-12. Cervantes saw “lots of blood, ” id. at 311, including blood coming from Nunez's head, id. at 318. Cervantes testified that he saw a pistol in Nunez's hand, which Cervantes took away. Id. at 312. Cervantes then called 9-1-1 and told the operator “that [his] cousin had shot himself and needed help as soon as possible.” Id. at 313.

         While he was on the phone, Cervantes went outside “to see if there was any help coming.” Id. at 315. Cervantes said that Nunez-who was still alive-followed Cervantes outside. Id. Cervantes testified that Nunez told Cervantes “to hand over the gun or to shoot him, ” but Cervantes refused. Id. At one point, Nunez tried unsuccessfully “to physically take the gun from” Cervantes. Id.

         Cervantes and Nunez went back into the house. Id. at 316. Once there, Cervantes said the police instructed him to “put [the gun] in the backyard.” Id. at 317. Cervantes complied. Id. While Cervantes went to put the gun in the backyard, Nunez was “laying down on the floor” “between the kitchen hallway and the living room.” Id. Cervantes tried “to make [Nunez] react, but he didn't react.” Id. at 318.

         When the police arrived, Cervantes met them outside. Id. at 319. Officers then placed Cervantes in a police vehicle, where he remained for the remainder of the incident. Id. at 320-21. Cervantes testified that, at some point while he was sitting in the police vehicle, Cervantes heard “two shots.” Id. at 322. When asked if there was “any time between the two shots, ” Cervantes responded, “Yes.” Id. During cross examination, Cervantes acknowledged that during his deposition, he had testified that “there was a second, or less than a second between the two shots.” Id. at 363.

         Cervantes further testified that, after he heard the two shots, he “noticed that there were some cops . . . celebrating in way” by “giving each other handshakes and high fives.” Id. at 323. After the incident was over, the officers took Cervantes to the police station. Id.

         2. Charles Thomas

         Plaintiffs next called Charles Thomas to the stand. Charles Thomas lives on Feller Avenue, across the street from the house where Nunez was shot. See ECF No. 186, Tr. at 372-73. Though Thomas was Nunez's neighbor, he was not familiar with Nunez. Id. at 375.

         Thomas testified that he observed the events on July 4, 2016 from inside his house. When Thomas first saw Nunez, Nunez was with “two females, ” walking across the street toward Thomas's house. Id. at 374. Thomas observed that Nunez was “bleeding from the head on the right side.” Id. According to Thomas, Nunez “fell down on the driveway” of 994 Feller Avenue, but then stood up and went inside the house at 994 Feller Avenue. Id. at 375.

         At that point Thomas, who had been watching from his kitchen window, id. at 373, went to his bedroom “to lay down, ” id. at 375. As he lay down, his dog began “barking by the window side and was agitated.” Id. at 376. Thomas went to the window to find out why his dog was barking, at which point he “saw policemen, maybe seven or eight of them, ” by the driveway of 994 Feller Avenue.” Id. The officers appeared to be “backing away” from the driveway. Id. Thomas says he then “went and lay down again.” Id. at 377; see Id. at 403.

         Thomas testified that at some point, a neighbor named Adan called him on the telephone and said there was “something going on” outside their houses. Id. at 383-84. Still on the phone with Adan, Thomas went to his kitchen window to watch. Id. at 384, 386. Thomas testified that it was a “sunny day, ” that the shooting took place during the “daytime, ” and that he could see Nunez clearly. Id. at 391, 412. Thomas saw Nunez come to the door of 994 Feller Avenue and “look to the left, look to the right, look forward, ” and then go back inside. Id. at 385. Thomas testified that Nunez did not appear to be holding anything in his hands and that his hands were at his side. Id.

         Thomas then saw Nunez come to the doorway for a second time. Id. at 286. Thomas testified that Nunez looked to “both sides” and “forward, ” and then “took a step down from the level of the house.” Id. According to Thomas, Nunez's arms were again down at his side. Id. at 387. Thomas confirmed that he did not see Nunez's “hands moving upwards towards his chest.” Id. at 413. Thomas then “hear[d] a shot, a gunshot.” Id. at 386. A second shot came “a few seconds later.” Id. at 410. Nunez “went down” after the second shot. Id. at 386.

         At no point before the shooting was Thomas aware that Nunez had a gun. Id. at 405. In addition, according to Thomas, he had “no idea where the bullets came from.” Id. at 410.

         Of relevance to Defendants' motions, Thomas stated that he was “focused more on [Nunez's] head movements and where [Nunez] was looking.” Id. at 407-08. Thomas therefore acknowledged that he “may have said” in his deposition that he was “not paying attention” to Nunez's hands. Id. at 411. Thomas also admitted that he was he was “afraid” during the incident because Thomas was “concerned about a stray bullet that might find its way into [his] home.” Id. at 399-400.

         In addition, Thomas testified that he has “three views” in his house: a window in his kitchen, a door with stained glass, and a window in his living room. Id. at 392, 395. Although the stained glass in the door is composed of different pieces of glass, Thomas confirmed that he “can see clearly” “through the stained glass.” Id. at 395. Thomas testified that he was “going from window to window” as the incident unfolded outside. Id. at 409. Thomas says that when he saw Nunez get shot, however, he was looking through his kitchen window. Id. at 393, 412.

         3. Officer Rubens Dalaison

         Plaintiffs' third witness was Rubens Dalaison, one of the SJPD officers who responded to the priority service call at 994 Feller Avenue on July 4, 2016. See ECF No. 186, Tr. at 422, 428. Officer Dalaison is a member of the crisis intervention team (“CIT”), and as such is “trained on identifying suicidal persons or subjects and talking with them.” Id. at 423-24. Plaintiffs' direct examination of Officer Dalaison spanned the second and third days of trial. Id. at 242; ECF No. 186, Tr. at 456. Defendants also called Officer Dalaison as a witness, on the fourth day of trial. ECF No. 188, Tr. at 729.

         Officer Dalaison testified that he first learned of the incident through a radio call, which declared that “there was a person that had a gun and that was possibly suicidal.” Id. at 425. Officer Dalaison also learned, through radio updates, that “a family member was present” and that the “person had shot himself and officers were setting up a perimeter.” Id. at 430. When Officer Dalaison arrived at the scene, other officers were already present. Id. at 430. Sergeant Thomas Boyle was “coordinating the perimeter” and generally “managing the scene.” Id. at 432. Officer Dalaison testified that he “took up a position across the street” from 994 Feller Avenue. Id. at 435.

         About five to ten minutes later, Officer Dalaison saw someone emerge from the 994 Feller Avenue residence. Id. at 439. Officer Dalaison says he saw a gun in the man's right hand. Therefore, when Nunez emerged from the house, Officer Dalaison shouted out “something to the effect of ‘man at the door has a gun.'” ECF No. 187, Tr. at 506. Officer Dalaison also communicated this information over the radio. Id. Officer Dalaison testified that he remembered seeing Nunez crying as he stood at the threshold of the door. Id. at 509, 513. Officer Dalaison further testified that he could “see blood on [Nunez's] head.” Id. at 510. At that point, Officer Dalaison “started to . . . establish some form of communication with him.” Id. at 512. Officer Dalaison said that he told Nunez things like “Drop the weapon, ” and “Let us help you.” Id. Nunez stood at the threshold for “seven to ten minutes.” Id. at 514. During that time, said Officer Dalaison, Nunez appeared “sluggish, disconnected, and zombie-like.” Id. at 514. Officer Dalaison testified that Nunez “raised the gun up to his [own] head . . . three to four times, ” but each time Officer Dalaison would say “Hey, don't do that” and Nunez “would bring the gun back down.” Id. at 515. However, Officer Dalaison admitted, “I couldn't tell you whether he heard me.” Id. Officer Dalaison also testified he “never saw [Nunez] point the gun at anyone but himself” during the first seven to ten minutes Nunez was at the doorway. Id. at 527. Eventually, Nunez “staggered back inside.” Id. at 529.

         Officer Dalaison testified that he then changed positions to where two other officers, Officer Vizzusi and Officer Aneez Raghavan, had positioned themselves near a pickup truck. Id. at 538 (Plaintiffs' Exhibit 19); ECF No. 188, Tr. at 841.

         Officer Dalaison testified that Nunez came to the doorway for a second time. ECF No. 187, Tr. at 526. According to Officer Dalaison, when Nunez reappeared, Nunez “appeared more crisp and sturdy.” Id. at 538. Nunez seemed “more intentional with his demeanor” to Officer Dalaison. ECF No. 188, Tr. at 842. In addition, Officer Dalaison testified that Nunez's “gun was a little bit higher than . . . before.” ECF No. 187, Tr. at 539. Specifically, the gun was “up closer to his waist above his belt.” Id. at 532. However, Officer Dalaison acknowledges that he never saw Nunez point the gun “at somebody.” Id. In response to Nunez's reappearance, Officer Dalaison said he “yelled out something to the effect of, ‘put the gun down,' or ‘drop it.'” Id. Officer Dalaison testified that he then turned to move around the truck. Id. at 539-540. As he was doing so, Officer Dalaison claimed to hear two shots “almost simultaneously, ” “less than a second” apart. Id. at 541.

         4. Dr. Michelle Jorden

         Plaintiffs called Dr. Michelle Jorden on the third day of trial. ECF No. 187, Tr. at 456. To accommodate her schedule, Plaintiffs questioned her between the two parts of Officer Dalaison's direct examination. Id. at 459.

         Dr. Jorden works at the Santa Clara County Office of the Medical Examiner-Coroner as a forensic pathologist and neuropathologist. Id. at 460-61. Though Dr. Jorden is currently the Chief Medical Examiner, she was an ...


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