United States District Court, N.D. California, San Jose Division
TONY NUNEZ and THE ESTATE OF ANTHONY NUNEZ THROUGH ITS PERSONAL REPRESENTATIVE SANDY SANCHEZ Plaintiffs,
MICHAEL SANTOS and ANTHONY VIZZUSI, et al., Defendants.
ORDER DENYING DEFENDANTS' POST-TRIAL MOTIONS Re:
Dkt. No. 193
H. KOH UNITED STATES DISTRICT JUDGE
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
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
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.
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.
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.
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.
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.
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
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.
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.
The Instant Motions
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.
filed their opposition on August 5, 2019, ECF No. 197, and
Defendants filed their reply on August 8, 2019, ECF No. 200.
The Evidence at Trial
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
Officer Rubens Dalaison
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.
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.
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.
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.
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.
Dr. Michelle Jorden
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.
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 ...