Maynez v. City of Los Angeles

Filed 6/30/06 Maynez v. City of Los Angeles CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

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. Mary Ann Murphy, Judge. Affirmed.

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Law Offices of Joseph P. Scully and Joseph P.Scully for Plaintiffs and Appellants.

Rockard J. Delgadillo, City Attorney, Janet G. Bogigian, Assistant City Attorney, and Amy Jo Field, Deputy City Attorney, for Defendant and Respondent.

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Enrique and Maria Maynez sued the City of Los Angeles (City) for strict liability resulting from a police dog bite (Civ. Code, § 3342) and for trespass. A jury reached a verdict for Mr. Maynez on the strict liability cause of action, and for the City on the trespass cause of action, finding the trespass was justified under the necessity defense as stated in CACI No. 2005 (2006 ed.; all further CACI references are to the 2006 ed.).^[1] The jury found Mr. Maynez suffered $92,500 in damages, found him 30 percent responsible for his own injury, and awarded him nothing for future damages.^[2]

Plaintiffs appeal, contending that (I) the trial court erred in instructing the jury regarding the necessity defense. In a related claim, plaintiffs contend the court erred in sustaining an objection to their jury argument that the necessity defense applied only in an emergency. They also contend that insufficient evidence supports (II) the comparative fault finding and (III) the jury's rejection of Mr. Maynez' future damages claim. We reject the contentions and affirm the judgment.

FACTS

Between 6:30 and 7:00 p.m. on February 5, 2003, City police officers were pursuing a suspect who was driving a stolen vehicle. The suspect abandoned the vehicle and ran into an area of 10-15 homes, one of which was the Maynez residence. The police cordoned off the area and, using helicopter, foot, and canine units, began searching for the suspect. Using loudspeakers, the police advised residents of the search and warned them to stay inside for their own safety. Mr. and Mrs. Maynez and their adult daughter were inside their home. At one point, the daughter started to leave the house, but an officer stationed outside asked her to stay inside. She complied. Mrs. Maynez heard the officer warn her daughter and, although Mr. Maynez testified that he did not hear the warnings, he was aware of the police activity around his home.

A police dog and two officers, one of whom was the dog's handler, searched the Maynez' yard. When an officer saw people inside the house looking out through the windows he repeated the warning to stay inside. Moments later, the dog alerted the officers to Maynez' closed garage door. The door was slightly warped, leaving a space the officers believed would permit someone to enter the garage. Intending both to capture the suspect and protect the home's residents from the suspect, but without seeking or obtaining consent, the officers opened the garage door, saw no one inside, announced they were going to release the dog, and then did so. No one was in the garage.

When Mr. Maynez heard the noise from the garage, he opened the door separating his house from the garage to investigate. According to Mr. Maynez, as soon as he opened the door, the dog attacked him, biting him first on the left thigh and then on his left knee and ankle. Mr. Maynez repeatedly hit the dog to try and stop the attack. According to the dog's handler, however, when Mr. Maynez opened the door, the dog walked past him without attacking. The handler immediately issued both a verbal and electronic recall order to the dog, which in response turned back towards the garage. Before the dog could reenter the garage, however, Mr. Maynez blocked the doorway, shook his fists, and stomped his feet, conduct the handler knew the dog would interpret as a threat. Before the handler could intervene, the dog attacked Mr. Maynez. Although the handler ordered Mr. Maynez to stop hitting the dog because his conduct would incite the dog to continue attacking, Mr. Maynez failed to comply, and the dog bit him twice more before the handler was able to control it and end the attack. Mrs. Maynez and her daughter witnessed only part of the incident.

Mr. Maynez, who then was 68 years old and in generally good physical condition, received three hospital treatments as a result of the attack. He testified that he experienced pain, weakness, and numbness in his left leg which remained at the time of trial, two years after the attack. The plaintiffs' physician examined Mr. Maynez a year after the attack (a year before trial) and opined that he likely would have some permanent nerve injury in his leg, and likely would improve over time, but that only further examinations, which were not done, would determine the extent of injury.^[3] Mr. Maynez and his family testified that his continued symptoms forced him to stop exercising, limit his walking and participation in family activities, and to become much more sedentary.

Regarding the trespass cause of action, the trial court instructed the jury pursuant to CACI Nos. 2000 and 2004.^[4] Regarding the necessity defense to trespass, the court, over plaintiffs' objection that the defense was inapplicable, gave a modified version of CACI No. 2005, which read: â€