STEVEN v. RICHARD

Filed 9/13/06

CERTIFIED FOR PARTIAL PUBLICATION*

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

Story continue from Part I ………

DISCUSSION

I. Sufficiency of the Evidence

"[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers" (Houston v. Hill (1987) 482 U.S. 451, 461), and retaliation for this criticism is actionable as a civil rights violation under section 1983. (Greene v. Barber (6th Cir. 2002) 310 F.3d 889, 895; Smart v. Board of Trustees of University of Illinois (7th Cir. 1994) 34 F.3d 432, 434; Rakovich v. Wade (7th Cir. 1988) 850 F.2d 1180, 1211; Elbrader v. Blevins (D. Kan. 1991) 757 F.Supp. 1174, 1183.) "Official reprisal for protected speech 'offends the Constitution [because] it threatens to inhibit exercise of the protected right' [citation], and the law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions . . . ." (Hartman v. Moore, supra, 126 S.Ct. at p. 1701 (Hartman).)

Defendants do not challenge these well-settled principles, but argue that insufficient evidence supported the jury's findings that they retaliated against Grassilli. In examining this contention, we consider the evidence in the light most favorable to the prevailing party, accept as true all the evidence and reasonable inferences tending to establish the correctness of the jury's findings, and resolve every conflict in favor of the judgment. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631.) "'It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment.'" (Baxter Healthcare Corp. v. Denton (2004) 120 Cal.App.4th 333, 369.)

A. Substantial Evidence Supported the Retaliation Findings

Defendants first contend the evidence was insufficient to show Sergeant Toth and Officer Barr acted with the intent to retaliate. This contention is without merit.

As detailed above, Officer Barr stopped Grassilli for alleged equipment violations shortly after Grassilli complained about Officer Barr's unlawful conduct. He then continued to stop Grassilli for these violations despite knowing a court had dismissed the violations, and/or that Grassilli had corrected the violations. Officer Barr additionally targeted only the trucks that were delivering materials to Grassilli's worksite for alleged mirror violations. Officer Barr took the trucks out of service, delayed them for hours, and required them to have extended mirrors, despite knowing that a more experienced colleague told him he was wrong to do so. Officer Barr stopped many other Tibbans trucks, but released each truck upon learning the driver was not headed to a Grassilli worksite. Officer Barr also initiated and then was actively involved in Sergeant Toth's plan to impound Grassilli's vehicle. Grassilli's expert witnesses criticized Officer Barr's actions as unprofessional, unwarranted, and violative of CHP policy.

For years, no CHP officer in Ramona took any action against Grassilli for the condition of his El Camino car, despite that these officers frequently observed Grassilli driving this vehicle through town. Within weeks of Grassilli's complaint, Officer Barr began to cite Grassilli, detain commercial vehicles hauling his water tanks, and then set in motion a scheme that led to the impound of Grassilli's truck. The jury found the nature and timing of these actions to be much more than a mere coincidence. There was substantial evidence for the jury to reach this conclusion. Viewing the totality of the circumstances, the evidence supports a finding that the stops were not triggered merely by Officer Barr's proper attempts to enforce the law.

Similarly, Sergeant Toth's actions in impounding Grassilli's vehicle and ordering the other officers not to provide Grassilli the opportunity to timely fix the problem supports the jury's finding that Sergeant Toth acted with a retaliatory motive. CHP policy requires officers to give a citizen a "notice to correct" if the officer is aware of a registration problem before the six-month period has expired. Sergeant Toth admitted he knew of this policy and he had never previously violated the policy, but did not offer a reasonable explanation for why he did so with Grassilli. Grassilli's experts opined that Sergeant Toth's actions were improper, unethical, and tantamount to targeting.

In challenging the sufficiency of evidence, defendants contend the evidence showed their contacts with Grassilli were motivated solely by a desire to enforce the law. Although the jury could have accepted this argument, it did not. Moreover, in asserting this argument, defendants neglect to provide a reasoned discussion of all of the evidence, which includes Grassilli's evidence. Rather than analyzing Grassilli's evidence and demonstrating it does not prove retaliation, defendants simply cite to their own favorable testimony. On appeal, we begin with the presumption that the record contains evidence sufficient to support the judgment. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) It is the appellant's burden to demonstrate otherwise. The appellant's brief must set forth all of the material evidence bearing on the issue, not merely the evidence favorable to the appellant, and it also must show how the evidence does not sustain the challenged finding. (Ibid.; Niederer v. Ferreira (1987) 189 Cal.App.3d 1485, 1510.) Where, as here, the appellant fails to set forth all of the material evidence, a claim of insufficiency of the evidence fails.

B. Substantial Evidence Supported the Malice Findings

For similar reasons, we reject defendants' arguments that insufficient evidence supported the jury's finding that Sergeant Toth and Officer Barr acted "maliciously, wantonly, or oppressively" against Grassilli.

As set forth above, the evidence established that Grassilli brought a complaint through proper channels pertaining to the propriety of Officer Barr's personal conduct, and that in retaliation for the complaint, Sergeant Toth and Officer Barr intentionally targeted Grassilli over several years and used their law enforcement authority to penalize Grassilli for his decision to make this complaint. This evidence substantially supports the jury's finding that the officers acted with the requisite malice.

In challenging the jury's malice findings, defendants deny they "harbor[ed] any intent to retaliate against respondent at any time . . . ." Defendants claim the tickets issued by Officer Barr reflect nothing more than his "unyielding effort to protect the motoring public and make the highways safe" and to "aggressively, but fairly enforce the Vehicle Code." They similarly argue that Sergeant Toth's decision to wait six months to impound Grassilli's vehicle without giving him any warning was motivated solely by Sergeant Toth's "hope" that Grassilli "would properly register the truck and pay the applicable DMV fees," and therefore "[s]uch a 'goodwill' posture and act of leniency . . . simply cannot be the factual basis for a finding of malice, oppression or fraud."

Although these contentions may be legitimate arguments to be made to a jury, they do not create a basis for overturning a jury's findings on appeal. The jury rejected defendants' view of the evidence that the officers were merely performing their obligations to enforce the Vehicle Code and thus were not acting with malicious intent, and the jury had a substantial evidentiary basis to do so.

C. Substantial Evidence Supports Supervisory Liability

Defendants also challenge the sufficiency of the evidence to support supervisory liability against Sergeant Toth and Sergeant Neumann. To establish supervisory liability under section 1983, Grassilli was required to prove: (1) the supervisor had actual or constructive knowledge of Officer Barr's wrongful conduct; (2) the supervisor's response "'was so inadequate as to show "deliberate indifference to or tacit authorization of the alleged offensive practices"'"; and (3) the existence of an "'affirmative causal link'" between the supervisor's inaction and Grassilli's injuries. (Weaver v. State of California (1998) 63 Cal.App.4th 188, 209-210, fn. 6, quoting Shaw v. Stroud (4th Cir. 1994) 13 F.3d 791, 799.) The jury was properly instructed on these elements, and found in Grassilli's favor on each of them.

The evidence supports these findings. By personally participating in the retaliatory activities, Sergeant Toth had actual knowledge that Officer Barr was engaged in retaliatory conduct against Grassilli. Sergeant Toth not only failed to direct Officer Barr to refrain from his activities, but he supported and encouraged them. Additionally, the evidence showed that Sergeant Toth was aware that Officer Barr continued to cite Grassilli for smog violations despite the court's dismissal of the charge, but he took no action to counsel Officer Barr or discourage this conduct.

The evidence likewise showed that Sergeant Neumann was aware of the history of conflict between Grassilli and Officer Barr, and yet continued to permit Officer Barr to issue Grassilli questionable citations. Grassilli's expert witness, Smith, a former police chief with substantial internal affairs experience, opined that Sergeant Neumann "neglected" his supervisorial duties at the December 1998 stop by permitting Officer Barr to issue a ticket that was inconsistent with CHP policy, and that he encouraged the retaliatory enforcement activities taken against Grassilli. Smith stated that Sergeant Neumann's responsibilities were to defuse the conflict between Officer Barr and Grassilli, rather than to "exacerbate" the problem. Smith also stated that Sergeant Neumann should have made a determination whether Officer Barr's personal opinion as to the smog violations was supported by CHP policy. Smith opined that Sergeant Neumann also showed tacit support for Officer Barr's actions by improperly taking disciplinary actions against Officer Thetford for associating with Grassilli and for Officer Thetford's truthful testimony in the prior proceedings.

II. Probable Cause Element

In their reply brief, defendants argue for the first time that the judgment must be reversed because Grassilli did not prove a lack of probable cause for the traffic stops. They rely on a recent United States Supreme Court decision, decided after the parties filed their initial appellate briefs, which interpreted the requirements of a federal civil rights retaliatory prosecution claim against federal and state officials. (Hartman, supra, 126 S.Ct. 1695.)[1] For the reasons explained below, we find no reversible error.

In Hartman, the plaintiff brought a retaliatory prosecution claim against postal inspectors who allegedly engineered his criminal prosecution in retaliation for criticism of the postal service. (Hartman, supra, 126 S.Ct. at p. 1700.) The Supreme Court granted certiorari to resolve a conflict among the federal circuits as to whether "a plaintiff in a retaliatory-prosecution action must plead and show the absence of probable cause for pressing the underlying criminal charges." (Id. at pp. 1701-1702.) In considering this issue, Hartman first reaffirmed the general rule that a plaintiff claiming retaliation against a federal or state official must generally prove a "but-for" causal connection between the unconstitutional motive and the alleged improper action, and, if this nexus is shown, the plaintiff need not prove any additional specific evidentiary link, such as the lack of objective circumstances supporting the official's action. (Id. at pp. 1703-1704.) In other words, where constitutionally protected speech is a motivating factor in governmental action adverse to the plaintiff, the adverse action is actionable even if there were other objective grounds for the action, unless the same action would have been taken even in the absence of the protected conduct. (See Mt. Healthy City Board of Ed. v. Doyle (1977) 429 U.S. 274, 285-287.)

After reaffirming this general rule, the Hartman court discussed the need for a stricter causation rule for a "retaliatory prosecution" claim because the claim "differ[s]" from the "standard" retaliation case in two ways. (Hartman, supra, 126 S.Ct. at p. 1704, italics added.) First, the court stated that the probable cause issue is typically part of a retaliatory prosecution case, and thus imposing the obligation on a plaintiff to prove its absence would not create a significant additional burden for the plaintiff. (Ibid.) But more important to its decision, the court identified the unique causation issues inherent in a retaliatory prosecution case and found these issues make it appropriate that a plaintiff prove a stronger nexus between the alleged retaliatory actions and the resulting harm. (Id. at pp. 1704-1705.) The court explained that the decision to prosecute is made by an independent prosecutor (who is entitled to absolute immunity for the decision) rather than the person alleged to have been motivated by retaliation. (Id. at pp. 1704-1706.) Thus, "[t]he causal connection required . . . is not merely between the retaliatory animus of one person and that person's own injurious action, but between the retaliatory animus of one person and the action of another." (Id. at p. 1705.) The court also emphasized the "long-standing" presumption that a prosecutor has legitimate grounds for actions taken, and therefore "judicial intrusion into executive discretion of such high order should be minimal." (Id. at pp. 1705-1706.) To avoid the factual and legal difficulties inherent in the complex causation analysis in a retaliatory prosecution case and to give effect to the strong judicial deference accorded to prosecutorial decisionmaking, Hartman thus established a bright line rule holding that a plaintiff alleging a retaliatory prosecution claim must prove, as an element of the case, there was no probable cause for the prosecution. (Id. at p. 1707.)

Hartman is inapplicable to Grassilli's claims based on the traffic stops and citations because these claims and the damages sought were not based on criminal charges brought by a third party or entity against Grassilli. The damages for these claimed retaliatory actions were incurred because of the stops themselves, not necessarily the later prosecution. Further, as acknowledged by defense counsel at trial, a traffic citation constitutes the charging document and triggers a traffic proceeding without any prosecutorial decisionmaking, and therefore there is no presumption that the prosecutor has "broken the causal chain" between the defendant's conduct and the damages. The logic of the Hartman decision does not apply if a plaintiff's claim is based on the defendants' retaliatory actions without the involvement of a prosecutorial agency (or similar charging entity) and the damages incurred were independent of the prosecution.

In so concluding, we recognize that a federal district court recently held Hartman's probable cause requirement applied to a retaliatory arrest claim--even where there were no criminal charges brought. (Hansen v. Williamson (E.D.Mich. 2006) ___ F.Supp.2d ___, ___ [2006 U.S. Dist. LEXIS 41461].) We find the reasoning of that decision unpersuasive. Despite its broad language, Hartman made clear that it was imposing the lack-of-probable-cause element with respect to retaliatory prosecution claims because of the unique causation analysis arising when the charges are brought based on the decision of a third party prosecutor (or other similar entity).[2]

Although not specifically argued by defendants, we note there were two aspects of Grassilli's case that were based on an alleged retaliatory prosecution arising from the district attorney's decision to bring the charges: (1) the Penal Code section 148.6 charges brought against Grassilli for filing a false complaint, and (2) the charge arising from the October 2000 cigarette incident. With respect to these specific incidents, the jury was instructed that once a prosecutor makes an independent decision to prosecute a crime, "the causal chain between the defendants' alleged misconduct and the criminal prosecution is [presumed to be] broken," unless Grassilli established defendants knowingly provided the district attorney with false information.

This instruction was arguably insufficient because it did not include a specific statement that Grassilli must prove a lack of probable cause for the prosecutions. However, defendants waived the right to assert instructional error by failing to raise it in the proceedings below or in their opening appellate brief. Although Hartman was decided after the second trial in this case, at the time of trial there was a split in the federal circuits as to whether a plaintiff is required to show a lack of probable cause in a retaliatory prosecution suit. (Compare Moore v. Hartman (D.C. Cir. 2004) 388 F.3d 871, 879 [no probable cause requirement]; Poole v. County of Otero (10th Cir. 2001) 271 F.3d 955, 961 [no probable cause requirement]; with Wood v. Kesler (11th Cir. 2003) 323 F.3d 872, 883 [probable cause required]; Keenan v. Tejeda (5th Cir. 2002) 290 F.3d 252, 260 [probable cause required]; Mozzochi v. Borden (2d Cir. 1992) 959 F.2d 1174, 1179-1180 [probable cause required].) Defendants thus had full opportunity to raise the issue, relying on the authorities favoring their position. Not only did they fail to raise the issue, they agreed that the jury should be instructed that it could find in Grassilli's favor on the retaliation claim based on the false charges and cigarette incident, if Grassilli proved the officers gave false information to the prosecutor. Further, defendants have never--including in their reply brief filed after Hartman was decided--challenged the correctness of any of the jury instructions on the causation or other liability issues, nor did they include the jury instructions as part of the designated appellate record. Under these circumstances, defendants waived the argument that insufficient evidence supports the judgment because Grassilli failed to prove a lack of probable cause.

Moreover, defendants have not met their burden to show reversible error. We are required to imply all necessary findings in support of the jury verdict, and there was substantial evidence from which the jury could find the prosecutor did not have probable cause to bring the Penal Code section 148.6 charge against Grassilli. The criminal charges against Grassilli were dismissed for lack of evidence, and Grassilli produced substantial evidence showing the charges were objectively baseless because the evidence showed Grassilli was truthful when he communicated his concerns about Officer Barr's vehicle.

Additionally, the central thrust of Grassilli's claims and the damages sought did not center on Grassilli's claims that he was the victim of a retaliatory prosecution. Instead, his claims were that as a result of his exercise of his First Amendment rights, the law enforcement officers took adverse actions against him--which included repeated traffic stops, impounding of his vehicle, and stops of his delivery trucks. It was the stops themselves, rather than a prosecution by an independent prosecutorial authority, that caused the bulk of his alleged damages. Although Grassilli did present evidence that he incurred attorney fees of $9,750 to defend against the criminal charges, it is not clear whether the jury included this amount in its economic damages finding of $210,000. On our review of the record, it is not likely the outcome would have been different if the jury had been instructed regarding the probable cause requirement with respect to the damages awarded for the two prosecutions brought by the district attorney's office.

III. Evidentiary Issues

Defendants raise several evidentiary errors arising from testimony admitted over defendants' objections. We find no abuse of discretion.

A. Testimony of Grassilli's Expert Ronald Sealey

Defendants contend the court erred in permitting Grassilli's expert, Ronald Sealey, to testify concerning traffic enforcement standards governing commercial vehicles because he was not qualified to offer opinions on these subjects.

1. Background

Before trial, defendants moved to exclude Sealey's testimony because he was not qualified to testify as an expert on traffic enforcement standards. In response, Grassilli presented facts showing Sealey worked for the San Diego County Sheriff's Department from 1963 until his medical retirement in 1981. During approximately 15 of those years, Sealey worked as a traffic enforcement officer, including training other officers in traffic enforcement. Sealey's responsibilities included writing traffic tickets for Vehicle Code violations. He wrote approximately 10,000 traffic citations in his career, and made approximately three stops per week for suspected commercial vehicle violations, including for permit violations. Sealey has testified frequently as an expert in accident reconstruction cases involving large trucks and trailers, in which he is often required to research, and opine on, whether commercial vehicles met Vehicle Code requirements, including mirror-related requirements.

Sealey received traffic enforcement training from the CHP in the mid-1960's, and on CHP commercial enforcement policies in 1973. In connection with this case, Sealey reviewed the most recent CHP manual (issued in 1995). Sealey had previously testified as an expert in police practices and procedures.

After reviewing this information, the court found Sealey had the necessary training and experience to opine on the subject of legal requirements governing commercial vehicles. The court found defendants' objections were "directed to weight as opposed to [the] admissibility" of Sealey's expert opinions.

2. Analysis

"A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates." (Evid. Code, § 720, subd. (a).) It is for the trial court to determine, in the exercise of its sound discretion, the competency and qualification of an expert witness, and the ruling will not be disturbed on appeal unless a manifest abuse of that discretion is shown. (People v. Chavez (1985) 39 Cal.3d 823, 828.) "Error regarding a witness's qualifications as an expert will be found only if the evidence shows that the witness "'"'clearly lacks qualification as an expert.'"'" (People v. Farnam (2002) 28 Cal.4th 107, 162, italics in original.) The competency of an expert "'is in every case a relative one, i.e., relative to the topic about which the person is asked to make his statement.'" (Huffman v. Lindquist (1951) 37 Cal.2d 465, 476-477.) The fact that an expert has not testified previously on the particular subject area does not disqualify the expert from testifying on the subject.

The court did not abuse its discretion in determining Sealey was qualified to testify as an expert on code requirements governing commercial vehicles. Sealey had substantial expertise in traffic and commercial vehicle enforcement not possessed by the layperson. The fact that Sealey's primary area of expertise was in accident reconstruction does not mean he could not also testify on Vehicle Code enforcement. Sealey explained that many of his accident reconstruction cases involved big rigs and truck trailers, and frequently his causation opinions in those cases depended on his analysis as to whether the vehicle was in compliance with commercial vehicle codes.

With respect to his opinions on CHP policies, Sealey's brief training by a CHP officer in 1973, combined with his later traffic enforcement experience, gave him sufficient expertise to offer opinions on the subject. An expert is entitled to testify about governing standards even though his or her experience concerned standards applicable at a different time. (See Alvarez v. State of California (1999) 79 Cal.App.4th 720, 732, overruled on other grounds in Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 74.) Moreover, if an expert possesses experience in the general area, the lack of formal training in the specific area and/or the fact that some of the training occurred many years earlier goes to the weight of the testimony and does not necessarily preclude its admissibility. (See Evans v. Ohanesian (1974) 39 Cal.App.3d 121, 128-129.)

We also reject defendants' argument that the court should have excluded Sealey's testimony about the propriety of the three Tibbans truck stops because the only relevant legal issue pertaining to those stops was whether the length of the detentions was unreasonable. In support of this assertion, defendants rely on language in our prior opinion in which we noted that a factfinder could find the reason the officers detained the trucks for an extended period was the officers' desire "to punish Grassilli for his earlier complaint . . ." and thus the issue "whether the length of the stops was reasonable . . . is a factual question for the jury to determine." (Grassilli I, supra, D037942.) Viewed in context, these statements were illustrative of the general principle that the Tibbans truck stops were relevant to prove the retaliation claims and did not limit the jury's consideration of this evidence to the length of the stops.

B. Testimony of CHP Officer Michael Clauser

Defendants contend the court erred in permitting Officer Clauser to give expert testimony because he was not designated as an expert in this case.

1. Background

Officer Clauser is a CHP officer trained in commercial vehicle enforcement, and was present at the July 1999 Tibbans truck stop. Before trial, defense counsel objected to Officer Clauser testifying about this traffic stop. Defense counsel stated that Officer Clauser was not designated as an expert witness and therefore should not be permitted to testify as to his opinion on whether the Tibbans truck violated the Vehicle Code. The court declined to exclude all of Officer Clauser's testimony about the July 1999 stop, reasoning that Officer Clauser was entitled to testify as a percipient witness and that his opinions were relevant to the extent they were communicated to Officer Barr or his supervisors.

At the outset of Officer Clauser's testimony, the court admonished the jury that "Officer Clauser, much like other witnesses we have had here, has not been designated as an expert witness. He's not a designated expert witness.

So to the extent you hear some of his background and opinions, those are just to give some understanding to what he did or did not do, as it relates to the specifics of this case."

Officer Clauser thereafter testified that he was asked to go to the July 1999 Tibbans truck stop to provide an opinion as to the legality of the truck load. When he arrived at the scene, Officer Clauser observed the truck and measured the load. Officer Clauser determined that the vehicle was in compliance with the Caltrans permit and did not require an extended mirror, and that requiring an extended mirror would be a safety hazard. Officer Clauser also testified that a mirror violation was not a basis for placing the truck "out of service" because this type of violation was not identified on the CVSA list.

After the stop, Officer Clauser communicated his opinions to Officer Barr. Officer Clauser testified: "I told [Officer Barr] that he was wrong, that when a vehicle is operating under a transportation permit with a load, there is no way it can possibly see around 200 feet back, and that was a bad call to write that [ticket].

He was actually causing [the truck] to be illegal. He didn't have the authority for that and that he should not write it." Officer Barr responded that he disagreed with Officer Clauser and that he was going to continue to write the tickets.

2. Analysis

Defendants contend the court erred in permitting Officer Clauser to testify as to his opinions about legal requirements governing mirrors on vehicles carrying extra-wide loads. Defendants maintain that only a designated expert may testify as to his or her opinions. (See FMC Corp. v. Plaisted & Companies (1998) 61 Cal.App.4th 1132, 1214-1215.) However, Officer Clauser's opinion was not offered to prove the applicable commercial requirements, but was relevant because he was a percipient witness who communicated his opinion to Officer Barr. The evidence was relevant to show that Officer Barr was aware that a CHP trained commercial enforcement officer disagreed with his stopping Caltrans-permitted trucks for mirror violations, but that Officer Barr made a decision to nonetheless continue to make these stops. The court advised the jury about the limited relevance of Officer Clausen's opinion testimony.

We recognize Officer Clauser was permitted to testify to the basis for certain opinions that may have exceeded the scope of his communications with Officer Barr, including the applicability and specific contents of the CVSA and the Vehicle Code sections applicable to mirrors. However, some of this evidence was relevant to explain the basis for his interpretations of the Vehicle Code. The fact that Officer Clauser had a reasoned basis to reach his conclusions regarding the extent of an officer's authority to stop a vehicle for mirror violations was relevant to show that Officer Barr's disregard of these opinions was pretextual. Evidence Code section 800 permits a nonexpert to offer an opinion when, as here, the opinion is rationally based on the witness's perception and helpful to "a clear understanding of his testimony."

Moreover, to the extent the court erred in admitting certain portions of Officer Clauser's testimony, the error was not prejudicial. Officer Clauser's explanation for why the Tibbans truck mirrors did not violate the Vehicle Code and/or did not constitute an out-of-service violation were fully consistent with the opinions of several other witnesses at trial, including Grassilli's designated expert (Sealey). Additionally, the issue as to whether the Tibbans truck mirrors in fact complied with the Vehicle Code was not the crucial issue in the case. Regardless of the legality of the mirrors, the issue at trial was whether Officer Barr was using the mirrors as a pretext to commit retaliatory acts against Grassilli. On our review of the record, the fact that Officer Clauser was permitted to testify to certain opinions that were not communicated to Officer Barr did not affect the outcome of the case.

C. Officer Thetford's Testimony

Officer Thetford was Officer Barr's coworker in Ramona who was also supervised by Sergeants Toth and Neumann. Before trial, the court denied defendants' motion to exclude Officer Thetford's testimony pertaining to Sergeant Neumann. Defendants challenge the court's ruling on appeal. We find no abuse of discretion.

At trial, Officer Thetford's testimony about Sergeant Neumann consisted of the following: (1) Sergeant Neumann told Officer Thetford not to associate with Grassilli, and any continued association would detrimentally affect Officer Thetford's career; (2) Sergeant Neumann told Officer Thetford he should give Grassilli a ticket if Officer Thetford saw Grassilli committing a traffic violation; and (3) Sergeant Neumann put pressure on Officer Thetford to change his testimony after Officer Thetford's deposition.

Defendants contend this testimony was improperly admitted because it was not relevant to any issue in the case. We disagree. Sergeant Neumann's actions directed at Officer Thetford were strongly probative on the issue whether Sergeant Neumann failed to properly supervise Officer Barr. To prove Sergeant Neumann's supervisory liability, Grassilli was required to show that Sergeant Neumann knew about Officer Barr's retaliatory actions, and that his "'response to that knowledge was so inadequate as to show "deliberate indifference to or tacit authorization of the alleged offensive practices . . . ."'" (Weaver v. State of California, supra, 63 Cal.App.4th at pp. 209-210, fn. 6.) The evidence that Sergeant Neumann told Officer Thetford not to associate with Grassilli and pressured Officer Thetford about his prior deposition testimony was relevant to show this deliberate indifference and wrongful support for Officer Barr's retaliatory actions.

We additionally reject defendants' contention the court abused its discretion in refusing to exclude the evidence under Evidence Code section 352 because Sergeant Thetford's testimony about Sergeant Neumann improperly "took the jury's focus away from [Grassilli's] claim of retaliation."

Although the evidence of Sergeant Neumann's retaliatory conduct against Officer Thetford had the potential to confuse the jurors with respect to the central issue of whether defendants retaliated against Grassilli, the court did not abuse its discretion in concluding the jury could separate these issues. Defendants had the opportunity to request the court to issue a limiting instruction on the evidence, and we presume defendants made the limited relevance of the evidence clear to the jury during their closing arguments.[3] Having presided over the lengthy trial and viewed the witnesses and jury, the court had a reasonable basis to conclude the jury was not likely to misinterpret the evidence of Sergeant Neumann's actions against Officer Thetford as evidence of his direct retaliation against Grassilli.

To be continue as Part III ………

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* Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of parts III, IV, VI, VII, and VIII of the Discussion section.

[1] Although Hartman involved a Bivens suit against federal officials (Bivens v. Six Unknown Fed. Narcotics Agents (1971) 403 U.S. 388), the Supreme Court made clear its analysis and holding applied equally to a section 1983 claim against a state official or employee. A Bivens action is the federal analog to suits brought against state officials under section 1983. (Hartman, supra, 126 S.Ct. at p. 1700, fn. 2.)

[2] Hansen relied on Barnes v. Wright (6th Cir. 2006) 449 F.3d 709, which is factually distinguishable. Barnes held Hartman's lack-of-probable-cause requirement applied to a retaliatory prosecution case where no prosecutorial agency was involved, and instead the officers with the alleged retaliatory motives "themselves initiated the grand jury proceedings against [the plaintiff]." (Id. at p. 720.) We agree with the Barnes court's conclusion that the Hartman rule applied under those circumstances. Because the grand jury performed a role similar to a prosecutor (made the independent decision to issue an indictment based on its conclusion there was a sufficient basis to bring the criminal action), the case was functionally the same as a retaliatory prosecution claim.

[3] With the parties' agreement, closing arguments in the liability phase of the trial were not reported.