Valenzuela v. City of Anaheim

29 F.4th 1093 (Mem)

Fermin Vincent VALENZUELA; V.V., by and through their Guardian, Patricia Gonzalez, individually and as successors-in-interest of Fermin Vincent Valenzuela, II, deceased; X.V., by and through their Guardian, Patricia Gonzalez, individually and as successors-in-interest of Fermin Vincent Valenzuela, II, deceased, Plaintiffs-Appellees,

v.CITY OF ANAHEIM; Daniel Wolfe; Woojin Jun; Daniel Gonzalez, Defendants-Appellants.

No. 20-55372

United States Court of Appeals, Ninth Circuit.

Filed March 30, 2022

Timothy T. Coates and Peter A. Goldschmidt, Greines Martin Stein & Richland LLP, Los Angeles, California; Steven J. Rothans and Jill Williams, Carpenter Rothans & Dumont LLP, Los Angeles, California; Robert Fabela, City Attorney; Moses W. Johnson, Assistant City Attorney; City Attorney's Office, Anaheim, California; for Defendants-Appellants.

Dale K. Galipo and Hang D. Le, Law Offices of Dale K. Galipo, Woodland Hills, California; John Fattahi, Law Office of John Fattahi, Torrance, California; Garo Mardirossian and Lawrence D. Marks, Mardirossian & Associates Inc., Los Angeles, California; for Plaintiffs-Appellees.

Christopher D. Hu, Horvitz & Levy LLP, San Francisco, California; Steven S. Fleischman and Scott P. Dixler, Horvitz & Levy LLP, Burbank, California; for Amicus Curiae Association of Southern California Defense Counsel. Steven J. Renick, Manning Kass Ellrod Ramirez Trester LLP, Los Angeles, California, for Amicus Curiae International Municipal Lawyers Association.

Before: John B. Owens and Kenneth K. Lee, Circuit Judges, and Michael H. Simon,^* District Judge.

ORDER

Judges Owens and Simon have voted to deny the petition for panel rehearing. Judge Owens has voted to deny the petition for rehearing en banc, and Judge Simon so recommends. Judge Lee has voted to grant the petition for panel rehearing and rehearing en banc.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35.

The petition for panel rehearing and the petition for rehearing en banc are DENIED .

Judge Bea's statement respecting the denial of rehearing en banc and Judge Collins' dissent from the denial of rehearing en banc are filed concurrently herewith.

Judge Watford did not participate in the deliberations or vote in this case.

BEA, Circuit Judge, with whom Judges CALLAHAN, IKUTA, BENNETT, R. NELSON, BADE, LEE, BRESS, BUMATAY, and VANDYKE join, and with whom Judge COLLINS joins as to Parts I and II(A), respecting the denial of rehearing en banc:

In Valenzuela , a divided panel of our court held that California's prohibition on post-death "hedonic" damages awards,¹ which purportedly compensate the deceased for the pleasure he would have taken from his life had he lived, is inconsistent with the compensation and deterrence goals of 42 U.S.C. § 1983. The court so held despite the $6 million awarded to Valenzuela's estate for his pre-death pain and suffering and the $3.6 million awarded to his family for wrongful death. Indeed, the "hedonic" damages were precisely a repetition of the wrongful death award: another $3.6 million.

The panel's holding is foreclosed by the Supreme Court precedent of Robertson v. Wegmann , 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978) (holding that a state law that totally eliminated a § 1983 claim did not violate the compensation and deterrence goals of § 1983 ), deepens a circuit split that already exists between the Sixth and Seventh Circuits, compare Frontier Ins. Co. v. Blaty , 454 F.3d 590, 601–03 (6th Cir. 2006) (relying on Robertson to hold that prohibitions on post-death "hedonic" damages awards are not inconsistent with § 1983 because § 1983 compensates for "actual damages suffered by the victim" and a loss of life is not "actual ... because it is not consciously experienced by the decedent"), with Bell v. City of Milwaukee , 746 F.2d 1205, 1239 (7th Cir. 1984) (holding that a post-death hedonic damages ban was inconsistent with § 1983 because the ban created perverse incentives for police officers to kill rather than injure), relies on an incorrect application of 42 U.S.C. § 1988, which governs damages in § 1983 cases, and conflicts with the tort law schemes of the 44 other states which ban post-death "hedonic" damages. For these reasons, Valenzuela should have been given en banc review.

I. BACKGROUND

A. Post-Death Damages at the Common Law: There Were and Are None.

Over 200 years ago, Lord Ellenborough declared that "[i]n a civil Court, the death of a human being could not be complained of as an injury." Baker v. Bolton , 1 Camp. 493, 170 Eng. Rep. 1033 (1808). Indeed, "[n]othing is better settled than, at common law, the right of action for an injury to the person is extinguished by the death of the party injured." Mich. Cent. R. Co. v. Vreeland , 227 U.S. 59, 67, 33 S.Ct. 192, 57 L.Ed. 417 (1913). Said another way: actio personalis moritur cum persona —a personal right of action dies with the person. Henshaw v. Miller , 58 U.S. 212, 213, 17 How. 212, 15 L.Ed. 222 (1854). The common law simply does not provide a cause of action, either for the victim's estate or the victim's family, against a tortfeasor if the victim dies before a judgment is obtained. It goes without saying that the common law, by failing to provide a cause of action, also fails to compensate the victim's estate and the victim's family for the value of the life the victim would have lived had he survived.

B. California's Statutory Scheme

Given the "manifestly unjust," id. , consequences of a rule which allowed a tortfeasor to escape all liability if his wrongful deed resulted in the victim's death before judgment, this common law doctrine has been abrogated by "wrongful death" statutes. England started the trend back in 1846 with Lord Campbell's Act, and every state in the union has followed suit. Restatement (Second) of Torts, § 925 cmt. a. ("In the United States also, the omission of the common law has been corrected in every state by statutes colloquially known as ‘wrongful death acts.’ Most of these are modeled more or less closely on the English Act."). It was not the evolution of the common law but statutory law which gave rise to this cause of action. The common law did not change.

California, like most states, authorizes two types of civil actions for cases where a victim dies at the hands of his tortfeasor.

First, the executor of the decedent's estate may bring a survival action. Under the state's survival statute, the victim's estate is entitled to recover for the "loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been able to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement." Cal. Civ. P. Code § 377.34(a) (emphasis added). These damages can include compensation for lost wages, medical expenses, funeral expenses, or other economic losses.

It is true that California's survival statute limits recovery to economic damages suffered by the victim before death. But while most states allow for pre-death pain and suffering damages, this limitation to pre-death damages is typical. Restatement (Second) of Torts § 925, cmt. a. ("If the defendant's act has caused the death, in most states the survival and revival statutes are interpreted as giving the representative of the estate no more than the damages accruing before death.").

California's wrongful death statute further authorizes the decedent's family, separate from his estate, to recover "all just damages" incurred by the loss of their loved one. Cal. Civ. P. Code § 377.61. The victim's spouse may bring an action for loss of consortium, which compensates the spouse for "not only the loss of companionship and affection through the time of trial but also for any future loss of companionship and affection that is sufficiently certain to occur." Boeken v. Philip Morris USA, Inc. , 48 Cal. 4th 788, 799, 108 Cal.Rptr.3d 806, 230 P.3d 342 (2010) (emphasis in original). The availability of these damages can result in substantial recovery for the families of victims of police violence, which I discuss below.

After Chaudhry v. City of Los Angeles , 751 F.3d 1096, 1103 (9th Cir. 2014), which followed the same dubious reasoning as Valenzuela but goes unchallenged here, the decedent's estate is also entitled to recover for pain and suffering the decedent endured before death in a § 1983 action. The Valenzuela majority saw no "meaningful way" to distinguish Chaudhry ," even though, unlike here, Chaudhry focused specifically on pre-death damages. The Valenzuela majority then found California tort law inconsistent with the compensation and deterrence purposes of § 1983, despite its making available nearly every conceivable form of just damages.

C. Post-Death "Hedonic" Damages

Post-death "hedonic" damages, which purport to compensate a victim for the lost pleasure he would have enjoyed from his life, can include injuries like the lost "ability to enjoy the occupation of your choice, activities of daily living, social leisure activities, and internal well-being,"² or the lost enjoyment of "going on a first date, reading, debating politics, the sense of taste, recreational activities, and family activities."³

California permits "hedonic" damages awards in tort cases where the victim survives. Huff v. Tracy , 57 Cal. App. 3d 939, 943, 129 Cal.Rptr. 551 (1976) ("California case law recognizes, as one component of general damage, physical impairment which limits the plaintiff's capacity to share in the amenities of life ... No California rule restricts a plaintiff's attorney from arguing this element to a jury.") (internal citations omitted). But it does not allow recovery for post-death "hedonic" damages. Garcia v. Superior Ct. , 42 Cal....