STEVEN v. RICHARD

Filed 9/13/06

CERTIFIED FOR PARTIAL PUBLICATION^*

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Lillian Y. Lim, Judge. Affirmed in part, reversed in part with directions.

Donna Bader; Garrison & McInnis, L.L.P. and Gregory M. Garrison, Michael W. Strain and Amelia A. McDermott for Plaintiff and Respondent.

Bill Lockyer, Attorney General, James Humes and James M. Schiavenza, Assistant Attorneys General, Kristin G. Hogue and David F. Taglienti, Deputy Attorneys General, for Defendants and Appellants.

Steven Grassilli brought a federal civil rights claim against several California Highway Patrol (CHP) officers, alleging these officers violated his constitutional rights by engaging in a series of actions against him because he complained about a CHP officer's improper conduct. (42 U.S.C. § 1983.)^[1] The first trial ended in a defense verdict. In a prior unpublished decision, we reversed the judgment because the trial court erroneously excluded evidence relevant to Grassilli's constitutional retaliation claim. (Grassilli v. Barr (May 10, 2002, D037942) (Grassilli I).)

After a lengthy second trial, the jury found that CHP Officer Richard Barr and Sergeant Michael Toth wrongfully retaliated against Grassilli because Grassilli reported Officer Barr's improper conduct to CHP management, and that Sergeant Toth and Sergeant Stephen Neumann were also liable for retaliation based on their positions as Officer Barr's supervisory officers. The jury found the retaliation caused Grassilli to suffer $210,000 in economic damages and $290,000 in noneconomic damages. The jury awarded Grassilli $3 million in punitive damages against Officer Barr and approximately $1 million against Sergeant Toth. The court awarded Grassilli $800,000 in attorney fees. (§ 1988(b).)

On appeal, Officer Barr, Sergeant Toth, and Sergeant Neumann (defendants) challenge the liability findings, the compensatory and punitive damages awards, and the attorney fees amount. We reject these contentions, except those regarding the punitive damages awards.

In the published portion of the opinion, we hold that substantial evidence supported the finding that defendants were liable under section 1983. This finding was based on evidence that defendants engaged in, or authorized, a series of law enforcement actions--including traffic stops, equipment compliance citations, and a vehicle impoundment--to retaliate against Grassilli after he complained to CHP management about Officer Barr.

In upholding the jury's liability finding, we reject defendants' argument based on Hartman v. Moore (2006) ___ U.S. ___ [26 S.Ct. 1695], that the judgment must be reversed because Grassilli did not prove that the officers lacked probable cause when they participated in the law enforcement contacts forming the basis for the section 1983 action. We conclude Hartman is inapplicable to most of Grassilli's claims because these claims were not brought on a retaliatory prosecution theory and the claimed damages did not result from criminal charges pursued by a prosecuting agency. As to the remaining claims, we find defendants waived their rights to assert Hartman error.

We further conclude the approximate $1 million and $3 million punitive damages awards against Officer Barr and Sergeant Toth are excessive. The awards violate federal constitutional principles; the imposition of the awards would indisputably result in defendants' financial ruin, a circumstance prohibited by state and federal law; the jury was not given proper guidance regarding the relevance of the financial condition evidence; and the awards include damages impermissibly imposed to punish the conduct of persons other than Officer Barr and Sergeant Toth.

Applying the established analysis for assessing a punitive damage award, we strike the punitive damages awards and remand to the superior court with directions to: (1) enter a punitive damages award against Officer Barr in the amount of $35,000, or at Grassilli's option to conduct a new trial on the proper amount of punitive damages; and (2) enter a punitive damages award against Sergeant Toth in the amount of $20,000, or at Grassilli's option to conduct a new trial on the proper amount of punitive damages. We also strike $25,000 from the cost award. We affirm the judgment in all other respects.

FACTS

Under well-established appellate rules, we state the facts in the light most favorable to the jury's findings.

During the 1990's, Grassilli lived in Santa Ysabel, a rural area near Ramona. Grassilli owned a small business that sold, installed, and serviced residential underground water tanks and pumps. Grassilli was a classic car enthusiast and regularly attended car shows in his older El Camino vehicle.

In March 1997, Grassilli called the local CHP office to complain that Officer Barr, a Ramona resident CHP officer,^[2] was violating the law because he had removed the

catalytic converter from his private vehicle, but was citing other drivers for this same violation. Grassilli said Officer Barr had indicated he did not need a catalytic converter because he had a badge. Grassilli was initially reluctant to give his name, but finally agreed to do so. Grassilli based the complaint on information he received from his friend and from a mechanic who worked at the automobile shop where Officer Barr had performed the work to remove the catalytic converter. Grassilli also later verified that Officer Barr's truck did not have a catalytic converter when he inspected the truck when it was parked near Lake San Vicente.

When no action was taken on his complaint, Grassilli again called the local CHP office and eventually spoke with Sergeant Toth, one of Officer Barr's supervisors. Sergeant Toth immediately discussed Grassilli's complaint with another sergeant, Sergeant Mayfield, and then Sergeant Toth volunteered to go to Officer Barr's home to check Officer Barr's truck. According to Sergeant Toth, he called Officer Barr on the CHP radio and then inspected the truck before Officer Barr arrived home. Sergeant Toth claimed he saw a stock catalytic converter on Officer Barr's truck. Officer Barr gave conflicting testimony, stating Sergeant Toth met him at the Ramona sheriff's station and that he was present when Sergeant Toth inspected the vehicle.

After his inspection, Sergeant Toth advised Sergeant Mayfield that Grassilli's allegations against Officer Barr were not true. Sergeant Mayfield then notified Grassilli that Officer Barr's truck had a catalytic converter and he considered the matter closed. In response, Grassilli called the Sacramento CHP internal affairs office to report that Officer Barr did not have a catalytic converter on his pickup truck, and he had been told Officer Barr would retaliate against him for initiating the complaint.

After Grassilli's call, the CHP internal affairs office ordered an investigation of Grassilli's complaint. In response, on April 14, 1997, Sergeant Mayfield met with Grassilli, filled out a CHP form that listed Grassilli's complaints against Officer Barr, and requested Grassilli to sign the form. Shortly thereafter, Sergeant Mayfield concluded that Grassilli's complaint was false and malicious, and forwarded a recommendation to the district attorney that Grassilli be criminally prosecuted for making a false complaint against an officer. Sergeant Toth and Officer Barr each denied any knowledge of Sergeant Mayfield's action, but inferences from the evidence indicated they supported Sergeant Mayfield's decision to pursue the criminal charges.

Thereafter, Officer Barr and Sergeant Toth took actions against Grassilli. We summarize these actions below.

April 27, 1997 El Camino Stop

Thirteen days after the Mayfield-Grassilli meeting, on April 27, 1997, Officer Barr made a traffic stop of Grassilli while Grassilli was driving his classic El Camino car. Officer Barr told Grassilli he was stopping him because his vehicle did not have the requisite smog equipment. Grassilli had driven this car in and around the Ramona area for the previous seven years and had never been stopped for any smog or equipment violations. Grassilli told Officer Barr that he was a resident of Santa Ysabel (as reflected on his driver's license), and therefore he was not required to have the smog equipment. Officer Barr nonetheless ticketed him for a smog violation and having an obstructed view created by a raised air cleaner on the vehicle hood. (Veh. Code, §§ 27156, subd. (b), 26708, subd. (a).) Grassilli hired an attorney, and after a court trial, the court dismissed the smog violation based on its finding that Santa Ysabel residents are not required to obtain smog equipment certification until an ownership change.^[3] The court found Grassilli guilty of the vision obstruction charge, and Grassilli thereafter lowered the air cleaner on his hood.

September 1997 Criminal Prosecution Dismissed

Based on Sergeant Mayfield's report, the district attorney filed a misdemeanor complaint alleging two counts against Grassilli, each of which carried a one-year maximum jail term: (1) making a false report against an officer (Pen. Code, § 148.6, subd. (a)(1)); and (2) dissuading an officer (Pen. Code, § 148.6, subd. (b)). The prosecutor dismissed the second count before trial. The trial was held in September 1997. After Officer Barr, Sergeant Toth, and Sergeant Mayfield testified in favor of the prosecution, the court dismissed the case for insufficient evidence.

October 1997 Tibbans Truck Stop

About five weeks later, in October 1997, Officer Barr stopped a commercial truck that was following Grassilli to a job site. Officer Barr knew the truck was associated with Grassilli's business before he detained it. The truck was towing a trailer carrying a water tank approximately 11 feet, 10 inches wide, and was operating under an annual Caltrans permit that allowed the truck to tow a load up to 12 feet wide. The truck was owned by James Tibbans, who was Grassilli's primary water tank supplier.

During the stop, the truck driver showed Officer Barr his Caltrans permit. Officer Barr told the truck driver he was violating the Vehicle Code because he needed a pilot car, mirror extensions, and red warning flags. Officer Barr refused to allow the truck to continue until each of these items was remedied. When Grassilli (who was also present at the scene) asked Officer Barr to call a sergeant for assistance, Officer Barr called Sergeant Toth. Sergeant Toth arrived 30 minutes later, and generally supported Officer Barr's actions without making any independent determination as to whether Officer Barr was correct. The stop took at least three hours and substantially interfered with Grassilli's work schedule.

Officer Barr ticketed the Tibbans truck driver. Although the driver later pled no contest to the three violations, testimony from Grassilli's expert witness and other CHP officers showed that the truck driver had not violated these code sections, and/or that the alleged violations were not a proper basis for taking the commercial vehicle out of service and requiring an immediate correction before the truck could continue.

January 1998-August 1998 Scheme to Impound Grassilli's Vehicle

Approximately three months after the Tibbans truck stop, Officer Barr told Sergeant Toth of an "anonymous tip" that Grassilli's new work truck was not properly registered.^[4] Grassilli had recently purchased the truck in another state and placed his existing personalized license plate on the new vehicle.

Shortly after he learned this information, Sergeant Toth decided he would not provide Grassilli the opportunity to correct the registration problem by giving him a "fix-it" ticket, and instead he would wait six months, which is the time period specified in the Vehicle Code for expired registrations becoming subject to impound. (See Veh. Code, § 22651, subd. (o).) Sergeant Toth specifically wanted to ensure Grassilli's violation resulted in an impound, rather than a notice to remedy. To this end, Sergeant Toth told the other Ramona CHP officers not to notify Grassilli of the registration problem or give Grassilli a citatio for the alleged violation. Sergeant Toth said that after the six-month period, he would be the one to stop Grassilli, give Grassilli a citation, and impound his vehicle. During the next several months, Sergeant Toth saw Grassilli's truck on "almost a daily basis."

The six-month period ended July 31, 1998. Early the next day, Officer Toth told his officers "today is the day we are going to take [Grassilli's] truck." Sergeant Toth then instructed one of the Ramona CHP officers, Officer Craig Thetford, to look for Grassilli's truck and then notify Sergeant Toth or Officer Barr when he found the truck. Within several hours, Officer Thetford radioed Sergeant Toth that he saw Grassilli driving his truck. Sergeant Toth drove to that location, and pulled over Grassilli's vehicle. When Sergeant Toth told Grassilli he was going to impound the truck for a registration violation, Grassilli was surprised and upset, and had no idea there was any problem with the registration. Grassilli's wife generally handled those matters, and she testified she had been told she had done everything she was required to do to properly register the vehicle and to use the previous license plate. Two days later, after paying the requisite fees, Grassilli was able to retrieve his vehicle.

Sergeant Toth admitted it was not normally his duty to write registration tickets. In his 32-year career, he had never before allowed a known violation to mature so he could impound a vehicle.

Officer Barr's December 27, 1998 Traffic Stop of Grassilli's El Camino

Several months later, on December 27, 1998, Officer Barr again stopped Grassilli while he was driving his El Camino; Grassilli's young son was also in the car. Officer Barr cited Grassilli for several violations: (1) three separate counts pertaining to Grassilli's operating his vehicle without smog equipment after being notified of the violation; (2) one count of not having his driver's license in his possession; and (3) one count of vision obscurement through the windshield. In response to a radio call, Sergeant Neumann came to the scene, but he permitted Officer Barr to cite Grassilli for the various violations and supported Officer Barr's actions without any investigation. Although Grassilli told Officer Barr that his prior smog citation had been dismissed (and therefore there was no prior smog violation) and that he had "won the exact same ticket," Officer Barr cited him for the smog violations. Officer Barr believed that if the smog violation had been dismissed, the court was wrong in doing so. Officer Barr also cited Grassilli for the hood equipment even though he was aware that the equipment had been lowered, and had been signed off by another officer. The smog violations were later dismissed by the court, and the other violations were signed off by law enforcement officers.

Thereafter, Officer Barr performed his own independent "research" on the smog equipment issue, and, based on this research, Officer Barr formed his own opinion that the court was twice wrong in dismissing the smog violation and concluded he would continue to ticket Grassilli for the lack of smog equipment.

Officer Barr's July 28, 1999 Stop of Tibbans Truck

Approximately seven months later, on July 28, 1999, Officer Barr stopped another Tibbans truck that was carrying a large water tank to Grassilli's jobsite. Officer Barr knew the truck driver was delivering the tank to Grassilli's worksite, and stopped the truck for failure to have extended mirrors and driving on a "brown" route without a pilot car in violation of its permit. Sergeant Toth came to the scene in response to Officer Barr's radio call. Officer Barr placed the truck out of service, and refused to allow the truck driver to continue after the citation was given. The truck was detained more than three hours. Officer Barr came back three or four times and each time found something new for the driver to do before he would release the truck.

In response to Grassilli's request, CHP Officer Michael Clauser, who was specially trained as a commercial vehicle enforcement officer, came to the scene. Officer Clauser did not believe the citations were supported. According to Officer Clauser, the truck did not need extended mirrors, extended mirrors would create safety problems, and a mirror violation was not a proper basis for taking a vehicle out of service. Additionally, although a pilot car was required on the "brown" route where the load was initially stopped, the truck would not need a pilot car if the truck was allowed to travel an additional 200 feet to Highway 78 from the place where Officer Barr detained it. The truck driver ultimately pled guilty to the mirror violation, and the pilot car violation was dismissed. A $50 suspended fine was imposed.

After the stop, Officer Clauser and Officer Barr discussed the issue of mirror violations. Officer Clauser told Officer Barr (who was not a trained commercial vehicle enforcement officer) that he was wrong to require a truck driver with an extra-wide load permit to have extended mirrors.

Grassilli Files Civil Action Against Officer Barr and Sergeant Toth

Three months after the July 1999 stop, Grassilli filed a civil rights complaint in the superior court against Officer Barr and Sergeant Toth. Officer Barr thereafter frequently followed Grassilli around town in his patrol vehicle, acting "like he was going to . . . pull [him] over. . . ." Officer Barr would drive by and glare at Grassilli. This conduct made Grassilli feel angry and nervous.

Sergeant Toth retired in July 2000, and Sergeant Neumann became Officer Barr's direct supervisor.

October 2000 "Cigarette Incident"

In October 2000, while the first trial was pending, Grassilli stopped at a light across the street from where Sergeant Neumann and Officer Barr were issuing a ticket to another motorist. Officer Barr told Sergeant Neumann he saw Grassilli throw a cigarette out of the window. Sergeant Neumann did not observe what happened. Although Officer Barr wanted to cite Grassilli at that moment, Sergeant Neumann told Officer Barr to remain where he was and that he could file a complaint against Grassilli with the district attorney. Officer Barr thereafter filed a complaint with the district attorney's office, alleging that Grassilli had committed three separate violations: (1) throwing a cigarette; (2) failing to proceed on a green light; and (3) impeding traffic. The court found Grassilli guilty of all three counts. At the current trial, Grassilli denied that he committed any of these offenses, although he admitted that he "flipped [Officer Barr] off."

January 2001 Tibbans Truck Stop

In January 2001, several weeks before the trial was scheduled to begin, Officer Barr stopped another Tibbans truck that was following Grassilli to a job site. Officer Barr told the driver the truck was in violation of the law because the mirrors were not extended. Officer Thetford was called to the stop to assist Officer Barr. Officer Thetford found the driver had good vision with the mirrors and could see behind the vehicle. Officer Barr gave the driver a citation for not having extended mirrors, and would not allow the truck driver to continue without extending the mirrors. A court commissioner later found the truck driver guilty of the mirror violation and placed him on a one-year probation with a suspended $50 fine.

Trial Ends in Defense Verdict and Tibbans Terminates Relationship with Grassilli

The next month, the trial on Grassilli's civil rights claims against Sergeant Toth and Officer Barr resulted in a defense verdict.

At about this same time, James Tibbans told Grassilli he did not want his trucks coming into Ramona anymore because of the additional costs resulting from the CHP stops. In addition to the three Tibbans truck stops discussed above, Officer Barr regularly detained Tibbans's trucks. On at least 10 occasions, the trucks were detained by Officer Barr, but not ticketed. When Officer Barr made these stops, he would frequently ask if the load was going to Grassilli's worksite. If the truck was not associated with Grassilli, Officer Barr would permit the truck to continue. Tibbans testified he thereafter discontinued doing business with Grassilli because he "couldn't afford to have my trucks in Ramona anymore . . . [b]ecause they were being stopped on a regular basis, and it was costing me a lot of money." Tibbans testified that his Ramona-bound trucks were not stopped for equipment violations in other parts of the state, and that he had received conflicting orders from CHP officers outside Ramona that the mirrors should not be extended. Because of the loss of this supplier, Grassilli ultimately stopped selling tanks and changed his business to installing and servicing water pumps, which reduced his profits and required more physical labor and time, leaving less time for his family.

May 2002 Appellate Decision

In May 2002, this court reversed the judgment in the first trial, determining the trial court prejudicially erred in refusing to permit any evidence of the stops of the Tibbans trucks. (Grassilli I, supra, D037942.) We held that although the evidence was not relevant to Grassilli's claims that the stops violated his Fourth or Fifth Amendment rights, the evidence was relevant to Grassilli's claims that defendants retaliated against him for exercising his right to complain about Officer Barr. We held the retrial was to be limited to Grassilli's section 1983 retaliation and related conspiracy claims against the named defendants (Officer Barr and Sergeant Toth).

Officer Barr's August 2002 Traffic Stops of Grassilli

Three months later, Officer Barr drove past Grassilli's vehicle, and then made a U-turn and ordered Grassilli to pull over. Officer Barr told Grassilli he was stopping him for not wearing a seatbelt. He also cited Grassilli for not having a motor carrier identification number and not having a registration tab on the front license plate. The evidence showed Officer Barr was not qualified to issue tickets relating to motor carrier identification numbers because he had not received the requisite training. Grassilli pled guilty to the seat belt charge. The remainder of the citation was dismissed in connection with an unrelated case against Grassilli for having started a fire on his property to burn bulldozed materials without a permit. No fine was imposed.

One week later, Officer Barr stopped Grassilli while Grassilli was driving his El Camino vehicle home from a car show. Officer Barr gave Grassilli a citation for misdemeanor violations of failing to correct smog equipment violations and windshield obstruction violations. He issued these citations even though Officer Barr admitted he knew both prior citations had been dismissed by the court and/or signed off by an officer. A "failure to correct" citation is improper if the officer knows the underlying violations have been dismissed. On the ticket, Officer Barr wrote "Ramona" as Grassilli's address instead of Santa Ysabel, which was the basis for Grassilli's assertion that the vehicle was exempt from smog equipment regulations. The court later dismissed the citations in connection with the unrelated fire case.

January 2003 Complaint

In January 2003, while the retrial was pending on Grassilli's civil rights case against Officer Barr and Sergeant Toth, Grassilli filed a second civil rights action, naming Officer Barr and Sergeant Neumann as defendants based on the events occurring after the first trial (e.g., the additional Tibbans truck stops and Officer Barr's continued vehicle stops of Grassilli's vehicles). The complaint alleged Sergeant Neumann was liable for his own retaliatory acts and for his failure to properly supervise Officer Barr. The court thereafter consolidated Grassilli's first and second actions.

In February 2003, Officer Clauser had a meeting with his supervisor, Sergeant Mark Crofton, regarding mirror requirements on trucks carrying permitted extra-wide loads. After the meeting, Sergeant Crofton ordered Officer Barr to "cease and desist" writing mirror tickets.

April 2004 Trial

The second trial was held in April 2004. During the five-week trial, Grassilli called numerous witnesses who testified to the events set forth above. Grassilli also called two CHP officers, Officer Thetford and Officer Clauser, who provided testimony favorable to Grassilli.

Officer Thetford, another Ramona resident officer, testified about Sergeant Toth's plan to impound Grassilli's vehicle. He also said both Sergeant Toth and Sergeant Neumann told him not to associate with Grassilli because Grassilli had filed a citizen's complaint and a lawsuit, and that Officer Thetford's continued association with Grassilli would detrimentally affect his career. Officer Thetford also testified at length about the conduct of his CHP supervisors, including Sergeant Crofton (who was the defense expert at trial), in pressuring him to change his deposition testimony in the case and retaliating against him for testifying in Grassilli's favor.

Officer Clauser, one of two CHP officers trained as commercial enforcement officers in the Ramona area, testified about his observations of the July 1999 Tibbans truck stop and his opinion the truck did not require extended mirrors, a fact he communicated to Officer Barr. Officer Clauser also testified about the meeting at which his supervisor, Sergeant Crofton, ordered Officer Barr to stop writing mirror violation tickets to Grassilli, and that Sergeant Crofton later put pressure on Officer Clauser not to provide deposition testimony favorable to Grassilli.

Additionally, Grassilli presented the testimony of two expert witnesses (Jack Smith and Ronald Sealey). Jack Smith, a former El Cajon police chief who had held various internal affairs and training positions with the Los Angeles Police Department and the San Diego County Sheriff's Department, testified that Officer Barr violated applicable rules by repeatedly writing traffic citations to Grassilli for violations that had been dismissed by the court and by treating the trucks going to Grassilli's worksite differently from other trucks. Smith also opined that Sergeant Toth's handling of Grassilli's complaint violated CHP procedures, and that Sergeant Toth's conduct in precluding his officers from notifying Grassilli of the registration violation before the impound date was "[a]bsolutely wrong" and "ridiculous" under any circumstances. Smith further testified that Sergeant Neumann "neglected" his supervisory duties with respect to Officer Barr, and Sergeant Neumann's instruction to Officer Thetford not to associate with Grassilli was "misconduct of the most serious kind" because it "smacks of the blue veil," which is "that you don't tell the truth, that you side together."

Grassilli's other expert witness, Ronald Sealey, who worked as a San Diego County Sheriff's deputy for 18 years, opined that a timeline of the stops "indicated a pattern of selective enforcement." Sealey noted that Officer Barr was the only officer citing Grassilli and the Tibbans work trucks for equipment violations despite that numerous other officers observed these vehicles. Sealey further testified that the CHP manual requires that an officer be certified to conduct under-the-hood inspections for smog violations, and that Officer Barr improperly "stacked" tickets given to Grassilli, which means "adding violations of the same nature under different [Vehicle Code] sections." With respect to the Tibbans truck stops, Sealey opined that Officer Barr was wrong about requiring the truck mirrors to be extended beyond an extra-wide load. He explained that an extension would violate Tibbans's Caltrans permit because it would take the truck beyond the permitted 12-foot width. He further testified that the CHP has adopted Commercial Vehicle Safety Alliance (CVSA) rules, which provide that an officer may take a vehicle out of service only for certain violations, and a mirror violation is not one of these violations.

In defense, each defendant testified that the actions taken against Grassilli were motivated by proper law enforcement purposes and not for retaliation. Defendants additionally called as an expert witness Sergeant Crofton, a supervising officer of the El Cajon CHP office and a trained commercial vehicle enforcement supervisor. Sergeant Crofton opined that Officer Barr's traffic citations to Grassilli were proper, and that Officer Barr's conduct in citing and placing the Tibbans trucks out of service for the lack of extended mirrors was consistent with the Vehicle Code.

Jury Instructions and Verdict

At the conclusion of the evidence, the court instructed the jury on Grassilli's single cause of action--a civil rights violation under section 1983. With the parties' agreement, the court instructed the jury that to recover on this claim, Grassilli must prove defendants intentionally retaliated against him for complaining about Officer Barr's illegal conduct, and that the retaliation was the "decisive factor, in the absence of which [defendants] would not have acted as [they] did." The jury was further instructed that if Grassilli proved this nexus, then Grassilli could establish his claim "even if the act, when taken for a different reason, would have been proper." This instruction was qualified by an additional instruction applicable to the two instances when a prosecutor was involved in the decision to bring charges against Grassilli (the Penal Code section 148.6 charges for making a false complaint against an officer and the October 2000 cigarette incident charges). With respect to these incidents, the court instructed the jury it was required to presume defendants' conduct did not cause any injury to Grassilli, but this presumption could be rebutted by evidence that Officer Barr knowingly gave false information to the prosecutor.

During deliberations, the jurors sent a note asking for direction because one juror was refusing to deliberate. After the court questioned the juror outside the presence of the other jurors and the juror asked to be excused, both counsel agreed that the court should grant the juror's request. The court then placed an alternate juror on the panel and instructed the jury to begin deliberations anew.

One day later, the jury reached a verdict, finding: (1) Sergeant Toth and Officer Barr retaliated against Grassilli; (2) Sergeant Neumann did not personally retaliate against Grassilli; (3) Sergeant Toth and Sergeant Neumann were liable for the retaliation in their role as supervisory officers; and (4) Sergeant Toth and Officer Barr acted "maliciously, wantonly, or oppressively against [Grassilli]." The jury awarded Grassilli compensatory damages of $357,000 against Officer Barr; $133,000 against Sergeant Toth; and $20,000 against Sergeant Neumann.

During the punitive damage phase, Grassilli did not present any additional evidence, and each defendant presented evidence only of his financial condition. After a brief deliberations period, the jury awarded $3,000,000 against Officer Barr and awarded $1,005,522 against Sergeant Toth.

To be continue as Part II ………

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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] All further statutory references are to title 42 of the United States Code, unless otherwise specified.

^[2] Under the CHP's resident officer program, less populated areas are served by "resident officers," who live in the area and are on-call from their homes.

^[3] At trial, the jury was instructed (without objection) that Santa Ysabel residents "are not required to be certified" for smog equipment.

^[4] The evidence regarding how Sergeant Toth and Officer Barr learned this information was contradictory (several CHP officers gave inconsistent versions of the events), but there was a reasonable basis to conclude that Officer Barr was a source of the "anonymous" tip.