Macias v. County of Los Angeles

Filed 6/9/10 Macias v. County of Los Angeles CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County. William J. Birney, Judge. Affirmed in part and reversed in part with directions.

________

Law Offices of Vicki I. Sarmiento, Stephanie Carroll, Vicki I. Sarmiento; Tsung Megason & Associates and Bernadine T. Tsung Megason for Plaintiff and Appellant.

Office of the County Counsel, Roger H. Granbo, Assistant County Counsel, Adrian G. Gragas, Deputy County Counsel, for Defendants and Respondents.

________

Trinidad Macias brought this action against the County of Los Angeles (county) and several of its sheriffs deputies alleging violation of his civil rights and other torts in connection with a pre-dawn raid on his home to search for guns and drugs allegedly belonging to the Pico Nuevo gang. The trial resulted in a judgment for the defendants. We reverse the judgment as to the civil rights and intentional infliction of emotional distress causes of action as to all defendants except John Rossman.^[1] We reverse the judgment as to only the county on the causes of action for negligence, assault and battery and false imprisonment. We affirm the judgment for the defendant deputies on the causes of action for negligence, assault and battery and false imprisonment. Finally, we vacate and remand the cost award to the defendants.

FACTS AND PROCEEDINGS BELOW

We discuss the facts more fully below in our discussion of the motion for nonsuit. In summary, it is undisputed that at approximately 5:00 a.m. on the morning of August 28, 2002, deputies of the Los Angeles County Sheriffs Department broke down the door of Maciass home to execute a search warrant for guns and drugs allegedly belonging to the Pico Nuevo gang and gang member Steven Hernandez. According to Macias, the deputies yanked him off the toilet where he was praying the rosary and slammed him against the wall of the bathroom. Also according to Macias, the deputies then detained him in the back yard of his home for between 45 and 90 minutes, in the view of his neighbors, wearing only a T-shirt which did not cover his buttocks or genitals. The deputies did not find Hernandez nor did they find any guns or drugs.

Macias sued the County of Los Angeles and the deputies under 42 U.S.C. section 1983 for violation of his constitutional rights. His complaint also alleged causes of action for negligence, assault and battery, false imprisonment and intentional infliction of emotional distress.

Initially, the trial court granted the defendants motion for summary judgment on all causes of action. In a partially published opinion, we reversed as to all causes of action against the county and as to all but three of the deputies. (Macias v. County of Los Angeles (2006) 144 Cal.App.4th 313 (Macias I).)

On remand, the case was tried to a jury. At the close of the evidence, the court granted a motion for nonsuit as to all the defendants on the section 1983 cause of action and the cause of action for intentional infliction of emotional distress. The court granted nonsuit only as to the county on the causes of action for negligence, assault and battery and false imprisonment. The jury returned a verdict for the deputies on those causes of action.

The court entered an amended judgment, including costs, on October 8, 2008. Macias filed a timely appeal from the amended judgment on December 4, 2008.

DISCUSSION

I. DEFENDANTS MOTION FOR NONSUIT ON THE
CIVIL RIGHTS CLAIM

A. Standard of Review

The standards for granting a nonsuit are well-established. A nonsuit may be granted after the close of the plaintiffs evidence only if substantial evidence does not support a verdict for the plaintiff. (Carson v. Facilities Dev. Co. (1984) 36 Cal.3d 830, 838-839.) In determining the sufficiency of the plaintiffs evidence the court may not weigh the evidence or judge the credibility of witnesses; it must accept all evidence favorable to the plaintiff as true and must disregard all conflicting evidence; the court must indulge every legitimate favorable inference that may be drawn from the evidence. (Ibid.) If the existence of facts sufficient to support a recovery can logically and reasonably be inferred from the evidence the motion must be denied regardless of whether the evidence is also susceptible to conflicting inferences. (Dimond v. Caterpillar Tractor Co. (1976) 65 Cal.App.3d 173, 181.)

On appeal, we review de novo an order granting a nonsuit applying the same standards that govern the trial court. (Sandoval v. Los AngelesCounty Dept. of Public Social Services (2008) 169 Cal.App.4th 1167, 1178.)

B. Section 1983 Cause of Action

Section 1983 creates a cause of action against any person who, acting under color of state law, violates rights created by the constitution and laws of the United States. (Siegert v. Gilley (1991) 500 U.S. 226, 231.) It is undisputed that the Fourth Amendment of the United States Constitution requires that a detention incident to a search be carried out in a reasonable manner and that the failure to adhere to this constitutional standard may constitute a violation of the detainees civil rights actionable under section 1983. (Macias I, supra,144 Cal.App.4th at p. 320.) A detention conducted in connection with a search may be unreasonable if it is unnecessarily painful, degrading, or prolonged, or if it involves an undue invasion of privacy. Detentions, particularly lengthy detentions, of the elderly . . . raise additional concerns. (Franklin v. Foxworth (9th Cir. 1994) 31 F.3d 873, 876.)

As we explain below, Maciass evidence at trial was virtually identical to the evidence he presented in opposition to the motion for summary judgment. Therefore, the trial court erred in ruling that the evidence was insufficient to support a verdict for Macias.

1. Maciass evidence in opposition to summary judgment (Macias I)

In reversing the summary judgment for defendants on the section 1983 cause of action, we summarized Maciass evidence as follows:

At approximately 5:00 a.m. on August 28, 2002, Macias was praying the rosary as he sat on the toilet in his home in Pico Rivera, California. Macias, then a 60-year-old retired college professor, has 90 percent hearing loss in both ears and was not wearing his hearing aid at the time. He was dressed in only a T-shirt, with no clothing below the waist.

Macias felt a rumbling sensation under his feet that felt like an earthquake, and then three deputies wearing combat-type clothing burst into the bathroom with their guns drawn. Macias pointed to his ears to try to indicate that he was deaf.

The deputies pulled Macias off the toilet, threw him to the floor, and dragged him outside, striking his shoulder against the wall in the process. Once outside, he was guarded by another deputy. Macias was forced to stand in his driveway wearing nothing but a T-shirt, with his genitals exposed, under guard and unable to reenter his house to get more clothing or his hearing aid, for roughly one hour. It took the deputies only about four minutes, however, to determine that there were no safety threats within Macias' home. Because of Macias sparse clothing, it was immediately apparent that Macias himself was not a safety threat. (Macias I, supra, 144 Cal.App.4th at pp. 316-317.)

The deputies found no drugs or guns when they searched Macias home on August 28, 2002. They did find a poster depicting gang graffiti of the Pico Nuevo gang in Macias garage.

After completing their search of Macias house, garage, and automobiles, the deputies allowed Macias to reenter his home, put on his hearing aid, and cover his body. The deputies told Macias that the search related to Hernandez, but Macias explained that Hernandez lived down the street with his mother, not with Macias. . . . The attempted search at the Hernandez home took approximately 20 to 40 minutes. Other deputies continued to detain Macias inside his own home until the attempted search of the Hernandez home was completed. (Macias I, supra,144 Cal.App.4th at pp. 317-318.)

Based on this evidence, we concluded that Macias has introduced sufficient evidence of alleged facts that, if proved, would show violation of a constitutional right. (Macias I, supra,144 Cal.App.4th at p. 320.) We further held that based on this evidence defendants defense of qualified immunity failed because it should have been clear to any reasonable officer that Maciass detention was unlawful . . . . (Id. at p. 321.)

2. Maciass evidence at trial

The only significant difference between Maciass evidence in opposition to summary judgment and his evidence at trial was the addition of evidence at trial of emotional distress resulting from his detention.

It was undisputed that at the time of the incident Macias was a retired college professor with a 90 percent hearing disability and that he did not belong to a gang and had no criminal history.

Macias testified that at approximately 5:00 a.m. he was sitting on the toilet saying the rosary when the officers burst into his house. He looked up to see three armed deputies standing at the bathroom door. Macias was not wearing his hearing aid. He gestured toward his ears to indicate to the deputies that he could not hear. According to Macias, when he made that gesture the deputies came in and got ahold of me and threw me against the wall and then carried me out through . . . the hallway through the living room. Macias was wearing nothing but a T-shirt that did not cover his buttocks and genitals.

Two of the deputies testified that as soon as they saw Maciass empty hands and the way he was dressed they knew he was not a threat. Nevertheless, Macias testified, the deputies forced him to lean against his backyard wall with his hands raised above his head while they conducted a search of the premises and he remained in that position, under guard, with his genitals exposed, for approximately 90 minutes. The deputies and two neighbors saw him in that circumstance. Standing in the yard with his privates displayed made him feel embarrassed, violated and threatened. Macias described the experience as horrible.

After completing their search of Maciass home and yard and finding neither drugs nor guns, the deputies allowed Macias to reenter his home, retrieve his hearing aid and put on some pants. After Macias was back in his house and dressed he was questioned by one of the deputies. He felt that he was still detained and he did not believe the deputies would allow him to leave. Macias remained in his home under the control of deputies for another 20 minutes.

Shortly after the incident Macias consulted a psychiatrist because he felt full of anxiety, was always looking out the window [to] see if they were coming back and had trouble sleeping.

In reversing the summary judgment in Macias I, we stated: The record contains evidence from which a jury could reasonably conclude that Macias, wearing nothing but a T-shirt that left his genitals exposed, was detained outside for approximately one hour despite the fact that deputies determined within four minutes that neither Macias himself nor anything inside his house posed a safety threat. If those are indeed the facts, then Macias detention was patently unreasonable. (Macias I, supra,144 Cal.App.4th at p. 320, italics added.) The facts that Macias presented at trial were nearly identical to the facts he presented in opposition to the motion for summary judgment. Therefore, the doctrine of law of the case precluded the trial court from granting defendants motion for nonsuit because we had already held as a matter of law that based on those facts a jury could reasonably conclude that Maciass detention was patently unreasonable. (Cf. Bergman v. Drum (2005) 129 Cal.App.4th 11, 18 [appellate courts finding in SLAPP appeal that plaintiff stated a prima facie case of malicious prosecution precluded subsequent summary judgment for defendant based on the same evidence].)^[2]

The court also erred in granting a nonsuit on the cause of action for intentional infliction of emotional distress. Maciass evidence, described above, was sufficient to permit a reasonable jury to find in his favor on that cause of action.

The courts errors were prejudicial because they deprived Macias of his right to a jury trial on causes of action as to which a reasonable jury could return a verdict in his favor.

II. DEFENDANTS REFERENCES TO GANG VIOLENCE

Macias contends that the judgment based on the jury verdict must be reversed because the trial court committed reversible error when it allowed the defense to allude to gang violence in general, thus presenting inflammatory and irrelevant evidence to the jury that was prejudicial to appellants case. (Underlined and bold capitalization omitted.)

The record supports Maciass view that much of the defendants gang evidence was not focused on any relevant issue in the case. Indeed, defendants concede as much in their brief on appeal in which they make no attempt to justify the pervasive references at trial to gangs and gang violence.

The record, however, does not support Maciass contention that the blame for the defendants persistent references to gangs and gang violence rests with the trial court. Rather, the record shows that Macias failed to make timely and proper objections to the defendants gang references and evidence, thus forfeiting the issue on appeal. (People v. Dykes (2009) 46 Cal.4th 731, 761; 3 Witkin, Cal. Evidence (4th ed. 2000) 371-372, pp. 459-461.)

Defense counsel began his opening statement by telling the jurors that the evidence would show that the search of Maciass home was carried out by a specialized gang unit called Operation Safe Streets or O.S.S. He explained that the O.S.S. team learned that the Pico Nuevo gang was committing a series of crimes in the Pico Rivera neighborhood including a murder, drive-by shootings, and shootings at unoccupied vehicles and, because it was the mission of O.S.S. . . . to stop gang violence, a plan was developed to suppress this Pico Nuevo gang. Counsel also told the jury: We have a murder. We have drive-by shootings. We have other rival gang members being shot. We have the public at large need[ing] this gang suppressed. Macias did not object to any of these statements.

Macias made only two objections to the defendants numerous gang references in their opening statement and the trial court correctly overruled them both.

During the defendants opening statement, defense counsel told the jury: If you are to read the news and hear how dangerous gang violence is, it is. Macias objected, Thats improper. The court overruled the objection. Maciass objection was ineffective because he did not specify why the statement was improper. (Evid. Code,  353, subd. (a) [erroneous admission of evidence is only reversible error if there was an objection so stated as to make clear the specific ground of the objection].) Nor did Macias ask the court for an admonition to the jury to cure the prejudice or for an admonition to defense counsel to cease references to gangs and gang violence.

Defense counsel also told the jury in his opening statement that the deputies were at Maciass home to fight a gang [and] to combat gang violence by conducting high risk search warrants at a time when Pico Rivera was embroiled in all type of gang violence and murder and drive-by shootings. Macias objected that this statement was argument. It wasnt. It accurately summarized the evidence the defendants would later introduce at trial.

Macias made only one objection to the trial testimony about gang violence and the defense rephrased the question to which he objected.

The following colloquy occurred during the testimony of deputy Carey.

Q And, unfortunately, during your 17- to 18-year involvement with gangs, law enforcement and/or deputies have been killed . . . . (Italics added.)

[Counsel for Macias:] Objection. That is irrelevant. Its [Evidence Code section] 352.

The court: Id like to hear the end of the question. You wait to answer. And then let me hear the whole question, please.

Q My question to you, sergeant, is that, unfortunately, over your 27-year career with law enforcement, that deputies have in fact been killed during the execution of these search warrants.

[Counsel for Macias] 352.

The court: On the grounds of 352, its not. Its not violative of 352. Go ahead. Answer it.

A Yes.

The court ruled correctly. The question, as rephrased, whether deputies have been killed while executing search warrants, made no reference to gangs and was relevant to explain why the deputies broke down the door to Maciass house at dawn and rushed in with guns drawn. Nor do we perceive how that evidence was unduly prejudicial.

At closing argument, the defendants continued their theme of tying the search of Maciass house to gangs and gang violence. Defense counsel argued: The true victims in our case are experienced law enforcement officers, who wear a badge, who put a uniform on, who go out there and protect and serve. . . . And every time they went to work they risk their life on the line. . . . This is the reason why the deputies were at the house on August 28, 2002. They were combating gang violence.

Macias did not object. Any error was forfeited. (People v. Dykes, supra,46 Cal.4th at p. 761.)

III. MACIASS WHEELER MOTION

A. Background

After the defendants used peremptory challenges to excuse three Hispanic jurors Macias objected that the defendants excused these jurors on the basis of their ethnicity in violation of his rights under the United States and California constitutions. (Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258.^[3] Macias argued that there was no reason for excusing these jurors other than the fact that they are Latino . . . . Their answers were pretty much in line with everybody elses on this jury as far as being fair to both sides.

Defense counsel justified his challenges without waiting for the court to determine whether Macias had established a prima facie case of group bias. Counsel stated that he excused juror M. because she revealed during voir dire that her daughter and son-in-law had been involved in an almost identical factual setting that we had here. Counsel stated that he excused Juror S. primarily because I never keep a social worker on the jury. They are very liberal. They are usually very, very sympathetic to the underdog. Finally, with regard to juror H., counsel explained: [H.] rubs me. If you look at his questionnaire . . . he filled out more than anybody else. Whether or not he was Latino or Asian or anything else, I would have gotten rid of him.

After hearing defense counsels explanations for his challenges, the court rejected Maciass claim that the jurors had been dismissed on the basis of their ethnicity. We see no reason to disturb the courts ruling.

B. Standards for Assessing a Wheeler Motion

The use of peremptory challenges to exclude prospective jurors solely on the basis of presumed group bias is unlawful under the California Constitution (People v. Wheeler, supra, 22 Cal.3d 258) and the federal Constitution (Batson v Kentucky, supra, 476 U.S. 79). Group bias is defined as a presumption that certain jurors are biased merely because they are members of an identifiable group distinguished on racial, religious, ethnic or similar grounds. (People v. Jenkins (2000) 22 Cal.4th 900, 993.) A Wheeler violation is reversible error per se. (People v. Wheeler, supra,22 Cal.3d at p. 281.)

There is a rebuttable presumption that a peremptory challenge has been made on a constitutionally permissible ground. (People v Wheeler, supra,22 Cal.3d at p. 278.) To overcome this presumption the party making a Wheeler motion carries the initial burden to establish a prima facie case of group bias. (People v. Arias (1996) 13 Cal.4th 92, 134.) To do so, the defendant is required to raise an inference that the exclusion was based on group or race bias. (People v. Jenkins, supra,22 Cal.4th at p. 993, quoting Batson v. Kentucky, supra, 476 U.S. at p. 96.) Once a prima facie showing has been made, the burden shifts to the party exercising the challenge to show a genuine nondiscriminatory reason for the challenge. (People v. Cruz (2008) 44 Cal.4th 636, 655.) The court must then decide whether the moving party has met its burden of showing, by a preponderance of the evidence, purposeful discrimination based on group bias. (People v. Hutchins (2007) 147 Cal.App.4th 992, 997-998.) A single challenge of a juror based on race is sufficient to establish a Wheeler violation and compel reversal of the judgment. (People v. Fuentes (1991) 54 Cal.3d 707, 715.)

C. Challenge to Juror H.

Maciass appeal is limited to the challenge to juror H.

It is undisputed that Macias and juror H. are Hispanic. Furthermore, the record shows that defendants asked to present their justification for excusing the jurors before the court determined whether Macias had established a prima facie case of group bias. Accordingly, the issue of whether Macias made out a prima case is moot and we proceed to review the trial courts determination regarding the sufficiency of the defendants justifications for their peremptory challenge to juror H. (People v. Welch (1999) 20 Cal.4th 701, 745-746.) Finally, it is undisputed that defendants stated reason for excusing juror H.that he filled out more of his juror questionnaire than anybody else and whether or not he was Latino or Asian or anything else, I would have gotten rid of himwas a race-neutral reason for the challenge. Thus, our review is limited to determining whether substantial evidence supports the trial courts implied finding that defense counsels explanation for challenging juror H. was not a pretext to disguise impermissible group bias. (People v. Salcido (2008) 44 Cal.4th 93, 136.)

Macias argues defense counsels proffered reason for challenging H.that he filled out more of his questionnaire than anybody elseis inherently implausible and not supported by the record. He maintains that a comparison of Hs questionnaire responses with the responses of prospective jurors E., L., W. and Ho. shows that the latter completed their questionnaires just as fully as juror H. but they were not peremptorily challenged by the defense.

We have compared juror H.s questionnaire responses with those of jurors E., L., W. and Ho. and found one significant difference. Under the heading Occupation the latter prospective jurors described their occupations in a few words, e.g. Educational Administrat. (Directordistrict level); Flexo Asst.; Channel Account Manager; Custodian. Juror H., however, described his occupation as: Web design & maintenance[.] Tech support. Recruitment & Retention of Minorities into the health Professions[.] (Trained Chemist & Biologist. Former biomedical research[.]) H.s verbose response to the occupation question went beyond what the question called for and could reasonably have given defense counsel the impression that he was deliberately structuring his answer in an attempt to be selected for the jury or, at the very least, that he would dominate the jurys deliberations. Even if these were not the only possible inferences to be drawn from H.s answer to the occupation question, drawing one reasonable inference over another does not show bias. Thus, substantial evidence supports the courts finding of no group bias on the part of defendants.

The record contains other indications that defense counsels reason for challenging H. was sincere and not an impermissible post hoc rationalization. Counsel began his voir dire of juror H. by noting: Mr.[H.], you were very extensive in your questionnaire. The record also shows that the trial court made a sincere and reasoned attempt to evaluate defense counsels explanation in light of the circumstances. (People v. Hamilton (2009) 45 Cal.4th 863, 907.) The court stated it had reviewed H.s questionnaire responses and indicated it had paid attention to the voir dire of the potential Hispanic jurors as demonstrated by the courts comment that if it were defense counsel it would have kept juror S., the social worker, because she appeared to lean toward the defense.

IV. THE TRIAL COURTS INTERRUPTIONS AND COMMENTS
IN THE PRESENCE OF THE JURY

Macias contends the trial court denied him a fair trial by making comments in the presence of the jury that called into doubt the credibility of his expert witness, coached the defense witnesses and misstated the evidence.

As a general rule, claims of judicial misconduct are not preserved for appellate review if no objections were made at trial. (People v. Snow (2003) 30 Cal.4th 43, 77-78.) There is an exception to this rule where an objection and admonition would not cure the prejudice or an objection would be futile. (People v. Sturm (2006) 37 Cal.4th 1218, 1237.) In this case, Macias made no objections to the courts remarks. Based on our review of the record, the remarks were not so damaging or pervasive that an objection and request for an admonishment to the jury would not have cured the problem.^[4] We briefly discuss the courts comments below.

Macias argues the court improperly attacked the credibility of his expert witness on the proper procedure for carrying out a warrant for the search of a home. He cites the courts statements that the experts testimony had an air of unrealism and seems a stretch of unreality to me. The courts comments were in response to the experts testimony that the detective in charge of the search of Maciass house did not comply with Sheriffs Department rules by first ascertaining who was in the house. In the quoted remarks, the court expressed its view that it was unrealistic for the detective to know who was in the house before the search team entered it. The expert responded that he did not mean that the detective had to know for certain who was in the house at the moment the search was executed but, for the safety of the officers and the residents, the detective had a duty to determine the circumstances under which the search would be conducted including who would logically be expected to be in the house at the time the search was conducted. Had he done so he would have known that a deaf person . . . owns this house and . . . there were problems there.

We do not view the courts comments as an attack on the experts credibility but rather an attempt to clarify the experts testimony for the jurys benefit. (People v. Campbell (1958) 162 Cal.App.2d 776, 787 [it is entirely proper for the court to intervene in order to aid in the elicitation of clear and comprehensive testimony].) The courts comments actually aided Macias by allowing the expert to explain testimony that may have confused the jury as well as the court. The defendants reference in closing argument to the inquiries from the court as supporting their argument that the experts testimony was kind of a stretch of reality could have been objected to by Macias but was not.

Macias next argues that the court coached the defendants witnesses.

In the first example, the following colloquy took place between counsel for Macias, the witness and the court.

Q So, when you said, we have a long hallway; you were shining your light into that hallway; right?

The court: Or shining your light from outside the hallway? In other words, can you say its a long hallway either by looking down the hallway or looking down the wall outside of it? I dont know.

The witness: Its been six years. I could have been looking to the left or right when we entered the living room and said long hallway.

Because plaintiff has not explained how the witnesss answer prejudiced him, he has not met his burden on appeal.

In the second example, Macias asked the witness to explain the difference between a high risk search warrant and a moderate risk warrant. The witness responded, It would depend on the criteria when you assess the location prior to the execution. This colloquy followed:

The court: Would it be fair to say it depends on gut feeling of the experienced investigator or officer?

A That would have something to do with it.

Assuming it was improper for the court to suggest an answer to the question, Macias did not object and we cannot say the answer added any information that was seriously adverse to Macias.

Finally, Macias contends that the trial court misstated the evidence in the following colloquy in which defendants were cross-examining Macias.

Q Now, sir, we know from physical evidence, the actual tape recording, that the deputies were only there for 55 minutes.

Macias objected and the court overruled the objection stating: The testimony was I think 53 minutes, actually.

Although there was testimony from one of the defendants that the entire investigation lasted 53 minutes the defendants audio tape showed that the order to commence the search operation was given at 4:44: and the deputies reported they were leaving Maciass house at 5:42:12, approximately 58 minutes later. Given that the purpose of the defendants testimony was to contradict Maciass testimony that he was forced to remain outside his house for approximately 90 minutes, the discrepancy of 5 minutes between the defendants testimony and the tape is immaterial.

V. COST AWARD FOR INTERACTIVE TIMELINE

The court awarded defendants $41,078 toward the cost of trial exhibits and technical assistance including an interactive timeline provided by a private company. On appeal Macias only challenges the award for the interactive timeline shown to the jury and received into evidence. This exhibit consisted of an audiotape of the search played simultaneously with a computerized graphic showing the elapsed time of the search and the time of the day the activities on the tape were taking place. Macias argues the court erred in awarding costs associated with this exhibit because it was listed in defendants cost bill under expert witness fees (which were not allowable in this case), it was not reasonably necessary to the conduct of the trial nor helpful to the jury and, as a matter of policy, the court should not have awarded costs for high powered technology when ordinary means of presenting evidence would have worked just as well.

Because we reverse the judgment for all of the defendants on the civil rights and emotional distress causes of action and for the county on the negligence, assault, battery and false imprisonment causes of action as to which this exhibit may have been relevant, we direct the court to vacate the cost award and determine the entitlement to costs only after the case is completed.

DISPOSITION

The judgment in favor of the individual defendants, except John Rossman, is reversed as to the civil rights and intentional infliction of emotional distress claims. The judgment in favor of the individual defendants as to the negligence, assault, battery and false imprisonment claims is affirmed. The judgment in favor of the county is reversed. The award of costs to the defendants is vacated and remanded to the trial court with directions to determine the entitlement to costs only after the case is completed. The parties are to bear their own costs on appeal.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

MALLANO, P. J.

CHANEY, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^[1] Macias conceded at trial that dismissal was proper as to John Rossman. We will affirm the judgment as to him.

^[2] This same analysis applies to the nonsuit in favor of the county on Maciass state law causes of action because they are essentially based on the same evidence as the civil rights cause of action.

^[3] Defendants do not challenge Maciass representation that he is Hispanic and that the jurors in question were also Hispanic.

^[4] Before sending the jury out to deliberate, the court instructed them: I have not intended by anything I have said or done, by any questions I may have asked, or by any rulings I may have made, to suggest how you should decide any questions of fact or that I believe or disbelieve any witness. If anything I have done or said has seemed to so indicate, you disregard it. You form your own opinion.