Marroquin v. City of Los Angeles

112 F.4th 1204

Kimberly MARROQUIN, Plaintiff-Appellee, v. CITY OF LOS ANGELES; Dimaggio Rico, Officer, # 43442, Defendants-Appellants, and Unidentified LAPD Officer; Richard Paul Stabile, Captain; Matthew Clymer, Officer, # 35204; Alfred Corso, Officer, # 31160; Lyman, Officer, # 38908; Santiago, Officer, # 38473; Herman Usma, Officer, # 34439; William Thomas, Officer, # 41752; Marvin Perez, Officer, # 43105; Anthony Carillo, Officer, # 43442; Dominic Santiago, Sgt., # 34994, Defendants.

No. 23-55423

United States Court of Appeals, Ninth Circuit

Argued and Submitted June 3, 2024 Pasadena, California

Filed August 27, 2024

Appeal from the United States District Court for the Central District of California, R. Gary Klausner, District Judge, Presiding, D.C. No. 2:21-cv-07607-RGK-JEM

Blithe S. Bock (argued), Burke Williams & Sorensen LLP, Los Angeles, California; Shaun D. Jacobs, Supervising Assistant City Attorney; Scott Marcus, Chief Assistant City Attorney; Denise C. Mills, Chief Deputy City Attorney; Hydee F. Soto, City Attorney; Los Angeles Office of the City Attorney, Los Angeles, California; for Defendants-Appellants.

Steven B. Stevens (argued), Steven B. Stevens A Prof. Corp., Los Angeles, California; Ashley M. Conlogue and Kevin S. Conlogue, Conlogue Law LLP, Beverly Hills, California; for Plaintiff-Appellee.

Before: Milan D. Smith, Jr. and Bridget S. Bade, Circuit Judges, and Sidney A. Fitzwater,^* District Judge.

OPINION

BADE, Circuit Judge:

In this appeal, Defendants-Appellants Los Angeles Police Officer DiMaggio Rico and the City of Los Angeles challenge the district court's post-trial orders after a jury returned verdicts in favor of Plaintiff-Appellee Kimberly Marroquin. First, Defendants challenge the district court's order granting a new trial limited to damages under Federal Rule of Civil Procedure 59(a) and, second, they challenge the district court's order denying their motion for relief from judgment under Rule 60(b)(2) based on newly discovered evidence.

After the jury returned inconsistent damages awards against Officer Rico and the City on Marroquin's excessive force and negligence claims, both Marroquin and Defendants filed motions for a new trial limited to damages under Rule 59(a), arguing that the jury erred by apportioning damages unevenly. The district court concluded that the jury had likely been misled by an incorrect verdict form and ordered a new trial on damages "to prevent a miscarriage of justice."

Defendants then moved for relief from judgment under Rule 60(b)(2) based on newly discovered evidence that they argued would conclusively change the result of the trial. The district court denied the motion, finding that Defendants had failed to show they exercised reasonable diligence in discovering this evidence and concluding that, even assuming the new evidence was conclusive, Defendants' failure to show reasonable diligence was fatal to their motion.

Defendants argue that the district court abused its discretion by: (1) granting a partial new trial under Rule 59(a) when the liability issues and damages issues were so interwoven that a new, damages-only trial deprived them of their Seventh Amendment right to a fair trial; and (2) denying their Rule 60(b)(2) motion based on a lack of due diligence without considering whether there was a "conclusive" evidence exception to Rule 60(b)(2). We hold that the district court did not abuse its discretion either by ordering a new trial limited to damages under Rule 59(a), or by denying the Rule 60(b)(2) motion, and we affirm.

I.

A.

On October 11, 2020, the Los Angeles Lakers beat the Miami Heat in game six of the NBA championship series, becoming the 2019-2020 NBA champions. After the game, a crowd gathered outside the Lakers' arena, the Staples Center,¹ to celebrate their team's victory. One of the individuals in the crowd surrounding the Staples Center was Kimberly Marroquin. Marroquin was a Lakers fan who had watched the game at home. After the Lakers won, she decided to meet a friend, Brenda Gomez, outside the Staples Center. When Marroquin and Gomez first arrived, there were not "a lot of people there," but shortly thereafter the "crowd started getting bigger" and "[t]raffic got jammed." Individuals in the crowd began lighting smoke bombs, doing doughnuts with their cars, and throwing rocks and bottles at police officers.

When this chaotic scene began developing in the area around the arena, the Los Angeles Police Department (LAPD) initiated "crowd management" measures, which included declaring unlawful assemblies at several intersections near the Staples Center. The purpose of declaring an unlawful assembly was to provide time for people to leave the area before deploying crowd control tactics, such as skirmish lines and batons. At around 8:50 p.m., the LAPD declared an unlawful assembly at the intersection of 12th Street and Figueroa Street.

Officer Rico arrived at the Staples Center around 9:00 p.m. and was positioned on a skirmish line facing southbound on Figueroa Street, along with nine other officers. At 9:02 p.m., Officer Rico turned on his body camera. About four minutes after he turned on his camera, Officer Rico discharged a .40-millimeter less-lethal launcher. No other officer in the skirmish line facing southbound on Figueroa Street discharged a .40-millimeter round that night.

Marroquin and Gomez were also located near the intersection of 12th Street and Figueroa Street at 9:00 p.m. When the police presence developed south of Figueroa Street, they decided to leave the area, walking northbound. Other members of the crowd surrounding Marroquin and Gomez were "rushing and running" to leave the area. Marroquin felt something "impact" her head and fell to the ground. She spent a couple of seconds on the ground, dazed from the impact, and saw a blue rubber bullet nearby. After another member of the crowd picked Marroquin up and told her that she "had to keep going," Marroquin told Gomez that she had been shot.

B.

Marroquin sued several LAPD officers and the City, alleging that, while she was "celebrating the recent Lakers' NBA Finals win," an LAPD officer shot her "in the head with a less lethal rubber projectile round," causing her "substantial physical and emotional injuries." Marroquin brought claims under 42 U.S.C. § 1983 for First Amendment violations, excessive force, state-created danger, Monell² and supervisory liability, as well as California state law claims for negligence, battery, and a Bane Act violation. Two sets of claims survived summary judgment and proceeded to trial: the state law claims and an excessive force claim under § 1983 against Officer Rico, and the state law claims and a Monell claim under § 1983 against the City.

These claims proceeded to a three-day jury trial. All parties agreed that Marroquin was injured outside the Staples Center on October 11, 2020. But the cause of her injury was disputed.

Officer Rico testified that he fired his.40-millimeter launcher in response to a man "raising a beer bottle to throw at an officer." Officer Rico believed that this man, who was about 90 to 105 feet away, posed a threat of serious bodily injury. He testified that, in response, he shot his 40-millimeter launcher, saw that the round hit the man "in his navel area" and that, after the man was shot, he ran off into the crowd.

Marroquin testified that, while she and Gomez were "walking northbound," she "felt [herself] get shot in the head." She fell to the ground and "saw a blue rubber bullet" nearby. And when she stood up, she told Gomez that she had been shot. Marroquin claimed that, prior to being shot, she did not "see anyone about to throw anything." Gomez also testified that Marroquin "immediately" told her that she had been shot, but admitted that the crowd "trampled" her and Marroquin, and that she discovered Marroquin's head injury "right after" that "stampede."

The body camera footage admitted into evidence did not clearly support either Officer Rico's or Marroquin's account. Officer Rico's bodycam footage shows that an individual threw a glass bottle at the officers immediately prior to the discharge of Officer Rico's weapon. But his bodycam footage does not show the individual that Officer Rico asserted was in the process of throwing a bottle, nor does any other officer's bodycam footage.

Marroquin introduced testimony on the damages resulting from her head injury. Two doctors, Dr. Taylor Kuhn (a neuropsychologist) and Dr. Marisa Chang (a neurologist) testified that they diagnosed Marroquin with traumatic brain injury. Dr. Chang testified that Marroquin reported symptoms including migraines, confusion, difficulty focusing, and memory issues, and that she treated Marroquin's symptoms by prescribing stimulants to help with her memory and concentration, prescribing medications for headaches, and recommending cognitive therapy. Marroquin's therapist, Dr. Sheila Gross, testified that Marroquin occasionally reported symptoms arising from the head injury. Marroquin also testified that her symptoms impacted her work and caused her to become anti-social.

Defendants moved for judgment as a matter of law under Rule 50(a) at the close of Marroquin's evidence, and the district court granted the motion in part after Defendants presented their evidence. The excessive force claim against Officer Rico, and the negligence and battery claims against Officer Rico and the City, were submitted to the jury.

The jury found in Marroquin's favor on her claims against Officer Rico for excessive force and negligence, and on her negligence claim against the City. But Officer Rico and the City were found not liable for battery. The jury next considered damages. The verdict form asked the jury to assess damages against each defendant. The jury awarded Marroquin $1.00 in damages against Officer Rico, and $1,500,000.00 in damages against the City.

C.

After the verdict, Defendants renewed their motion for judgment as a matter of...