[00:00:00] Speaker 02:
Number 23-55-187 and 23-3198.

[00:00:08] Speaker 02:
So, the appellant should please proceed.

[00:00:21] Speaker 03:
Good morning, Honors, and may it please the Court.

[00:00:24] Speaker 03:
Jeff Michalowski for the appellants, the County of San Diego,

[00:00:28] Speaker 03:
and the individual defendant, Deputy Jeremy Banks.

[00:00:33] Speaker 03:
I'd like to reserve five minutes for the bottle.

[00:00:36] Speaker 03:
And the overarching question about the trial in this case, as I see it, is how could a jury possibly award $5 million for injuries resulting from two fist strikes

[00:00:51] Speaker 03:
and a dog bite, which lasted less than a second.

[00:00:55] Speaker 03:
They didn't require any hospitalization, and which never led to any sustained therapy, counseling, or anything of the sort.

[00:01:02] Speaker 03:
How did the jury get to five million, which is a number that's really outside the mainstream for cases of this type?

[00:01:11] Speaker 03:
What the controlling law tells us is that a verdict can't be permitted to stand if it's found to be in, quote, in any degree

[00:01:20] Speaker 03:
the result of appeals to passion and prejudice.

[00:01:23] Speaker 03:
That's from Judge Gould's 2005 decision in Watt Tech Company that we cited in our papers.

[00:01:30] Speaker 03:
And here the appeals to passion and prejudice were really the primary thrust of this trial.

[00:01:36] Speaker 03:
And we break it down into really three critical factors that led to the liability finding and to the extreme outlier of a monetary valuation.

[00:01:45] Speaker 03:
Attorney misconduct, an erroneous concealment instruction by the district court,

[00:01:50] Speaker 03:
and a direct and transparent appeal to fear.

[00:01:54] Speaker 03:
So let me walk through these briefly.

[00:01:56] Speaker 03:
First, we have the plaintiff's attorneys expressly asking the jury to act out of passion and prejudice.

[00:02:04] Speaker 03:
During closing argument, we have the plaintiff's attorney telling the jury that, quote, revenge is a dish best served cold.

[00:02:13] Speaker 03:
the plaintiff's counsel tells the jury, pointed at the defendants and said, these are bad people.

[00:02:19] Speaker 03:
They don't deserve, they don't have even one scintilla of humanity.

[00:02:23] Speaker 03:
They don't deserve to be in the same room as the plaintiff and his family.

[00:02:27] Speaker 03:
And in addition to these highly prejudicial remarks, we also have a plaintiff's attorney not directing the jury to the damages instruction, but instead raising questions like this.

[00:02:40] Speaker 03:
Is $40 million enough?

[00:02:42] Speaker 03:
Is $50 million?

[00:02:42] Speaker 03:
$100 million?

[00:02:44] Speaker 03:
We'll leave that to you, so long as it's substantial.

[00:02:47] Speaker 03:
Leaving the jury with the impression that it was appropriate to compare Mr. Miles's damages to the value of a modern art painting sold at Sotheby's, the $50 million Mondrian that plaintiff's counsel pointed out in the closing argument.

[00:03:05] Speaker 03:
So this was an obvious call.

[00:03:08] Speaker 03:
by experienced trial counsel to get the jury to enter a verdict that wasn't based on reason, but was instead designed to punish the government and to punish the police.

[00:03:19] Speaker 03:
And we know the first case that we cited in our papers is that punitive damages are not available against public entities.

[00:03:27] Speaker 03:
Second, Your Honors, we have an instruction from the district court that really all but ensured a verdict in plaintiff's favor and that

[00:03:37] Speaker 03:
all but guaranteed that it was going to be a large one.

[00:03:41] Speaker 03:
The district court judge told the jury that the government had hid evidence from them, that the police had lied to them and concealed, willfully concealed evidence and corrupted the trial and taken away their right as jurors to decide the issue fairly.

[00:03:59] Speaker 03:
Really important here, Your Honors, is that this was a non-bifurcated proceeding.

[00:04:04] Speaker 03:
What this means is that the same jury that received that instruction was the same one that decided not only liability, but also the $5 million award of damages.

[00:04:15] Speaker 01:
Can I stop you and ask a question about that?

[00:04:16] Speaker 01:
So I had understood your challenge to this instruction as being

[00:04:23] Speaker 01:
there wasn't evidence to support what the judge said happened or something akin to that.

[00:04:30] Speaker 01:
And not to have tied this to anything about the instruction led to an improper view of what could be given as damages.

[00:04:38] Speaker 01:
Is there anything in your opening brief that you can point to that makes the link between this instruction and punitive damages being like snuck in?

[00:04:51] Speaker 03:
Off the top of my head, no, I do think that we discussed in the introduction at least that the overall verdict and so that the liability judgment and the damages are infected by the same sorts of errors in this case.

[00:05:07] Speaker 03:
So yeah, our contention is certainly that that $5 million figure was informed by the same errors that draw the liability finding to question.

[00:05:21] Speaker 03:
Now, there's also this direct appeal to fear.

[00:05:26] Speaker 03:
And again, we have experienced counsel here.

[00:05:29] Speaker 03:
And they accomplished this in a number of ways.

[00:05:33] Speaker 03:
But the most glaring was their photo of that vicious dog with a shock collar that they included.

[00:05:39] Speaker 03:
We included that in our papers.

[00:05:41] Speaker 03:
That went to the jury deliberation room with them.

[00:05:44] Speaker 03:
That was admitted into evidence.

[00:05:45] Speaker 03:
And the jury had this image of a dog almost frothing at the mouth.

[00:05:50] Speaker 01:
Can I ask you about that too though?

[00:05:52] Speaker 01:
I don't understand really how that would have made any difference because I didn't understand there to have been testimony about fear of the dog being part of the emotional distress.

[00:06:02] Speaker 01:
It seems like what the dog looked like was never really at issue in any of the description of where the damages were that the jury was allotting.

[00:06:11] Speaker 01:
So why would it matter what the dog looked like?

[00:06:14] Speaker 03:
I agree completely.

[00:06:16] Speaker 03:
Your Honor, it doesn't matter.

[00:06:18] Speaker 03:
Mr. Miles didn't view this lunging dog.

[00:06:21] Speaker 03:
For the most part, he's walking backwards, right?

[00:06:24] Speaker 03:
So that fear shouldn't be part of his damages.

[00:06:27] Speaker 03:
This is what is commonly referred to as a classic reptile tactic, where the goal is not to introduce evidence due to its relevance to damages or to liability, but to inspire fear, to inspire the jury to try to protect the community from harms.

[00:06:45] Speaker 03:
So putting this image, which was taken straight from a stock photo from the internet, a lot of dog bite plaintiff-sided law firms put this on their website.

[00:06:55] Speaker 01:
The witness did say, this is the right kind of dog.

[00:06:57] Speaker 01:
This is what the dog looked like.

[00:06:58] Speaker 01:
I mean, there was testimony.

[00:07:00] Speaker 01:
I guess I just don't see... I understand you think it wasn't relevant, so it shouldn't have been admitted, but I also just... The other side of that is it's just sort of this irrelevant piece of information that didn't tie to anything.

[00:07:11] Speaker 01:
So I don't know why the...

[00:07:13] Speaker 01:
I don't see any reason to think the jury used this to increase the damages because there wasn't testimony about, like, this is a scary dog and that's the problem.

[00:07:22] Speaker 03:
Your Honor, so as to the question of whether the dog was the same type, yes.

[00:07:29] Speaker 03:
The witness did say yes, this is same kind of Belgian Malinois.

[00:07:34] Speaker 03:
as to, but the comparisons ended there.

[00:07:37] Speaker 03:
The witness also said that before a dog is about to attack, yes, their ears go down like they are in that image, but there was no testimony that the most glaring parts of those images, which is the dog's bearing its teeth and kind of frothing at the mouth in this military shot color, that is not

[00:07:56] Speaker 03:
there's no evidence that that was anything looking like what Bubow, the animal companion or the animal partner in this case, looked like.

[00:08:05] Speaker 03:
So, Your Honor, I'd suggest that the fact of its irrelevance, yes, this image was entirely irrelevant.

[00:08:12] Speaker 03:
It shouldn't have been employed, but I think that only compounds the risk of prejudice.

[00:08:17] Speaker 03:
Just because of the nature of that photo, the jury went into that deliberation room with two photos, one of Bubow,

[00:08:24] Speaker 03:
one photo actually a bubo and then one photo of this militarized dog from a stock image that that's that's inviting.

[00:08:35] Speaker 03:
It's a direct call to passion and prejudice by plaintiff's counsel.

[00:08:39] Speaker 03:
We can do that in proper.

[00:08:44] Speaker 00:
For my remaining time, I'd like to focus on three issues if that's- Well, counsel, before you move on, similar to a question I asked counsel,

[00:08:54] Speaker 00:
during the previous argument, if hypothetically we were to agree with you that remitted or as to damages was appropriate here, what and if we were to decide, for example, that we were going to exercise our discretion rather than setting a remitted or amount, setting a maximum remitted or amount and leaving the actual amount to the district court,

[00:09:20] Speaker 00:
What would you suggest as the maximum amount if we were going to exercise our discretion in that way to set a maximum amount as opposed to leaving it entirely to the district court?

[00:09:36] Speaker 03:
We looked at the benchmarks and we provided the court with a great deal of data on damages awards in comparable cases.

[00:09:45] Speaker 03:
And it depends on how you slice the data, but it's kind of striking.

[00:09:49] Speaker 03:
No matter how you strike the data, the numbers come in around 1 million.

[00:09:53] Speaker 03:
So the median is 1,020,000.

[00:09:55] Speaker 03:
The average is 950,000.

[00:09:58] Speaker 03:
Right around that seven figure mark is what the benchmarks would suggest would be a verdict that a jury could reasonably reach in a case like this.

[00:10:09] Speaker 01:
And does that mean that's the maximum?

[00:10:13] Speaker 03:
No, Your Honor, the law says that, you know, we don't, you can't because the district court can't be constrained with a cap based on prior cases.

[00:10:23] Speaker 03:
But these benchmarks are clearly instructive.

[00:10:26] Speaker 03:
If there were reason to exceed them in this case, we want to see evidence of that.

[00:10:31] Speaker 03:
And what I think is very interesting is that plaintiffs expert

[00:10:37] Speaker 03:
indicated the types of trauma that Mr. Miles has experienced are typical of those that one might expect of someone who has a negative encounter with law enforcement like this.

[00:10:50] Speaker 03:
So the testimony from plaintiff's own expert was that this was not an unusual case.

[00:10:56] Speaker 03:
It actually would be in line with those benchmarks.

[00:10:59] Speaker 03:
So I'd suggest that there's no reason to exceed them in this case.

[00:11:05] Speaker 03:
I do want to spend a little bit of time on the willful concealment instruction, Your Honor, because the district court found that there was bad faith and malfeasance by the county in the discovery process and that there was prejudice to the plaintiff.

[00:11:25] Speaker 03:
And based on that, the district court informed the jury that the government was hiding evidence from them and the police were hiding evidence from them, an incredibly damaging instruction, almost impossible to recover from.

[00:11:38] Speaker 03:
That instruction was based on seven uses of force.

[00:11:44] Speaker 03:
But if we drill down on those, Your Honors, we see that there's no evidence of bad faith by the county and no evidence of prejudice to the plaintiff.

[00:11:53] Speaker 03:
Really importantly,

[00:11:55] Speaker 03:
Four of those seven incidents that were included in the willful concealment instruction, those had uses, of course, that were reflected in critical incident review board reports.

[00:12:08] Speaker 03:
These are the privileged reports where law enforcement convenes in a self-critical way to look at challenging incidents and think about what they can do about that.

[00:12:19] Speaker 03:
The court made findings that because the county didn't include those curb reports,

[00:12:25] Speaker 03:
was privileged reports on a privileged log.

[00:12:27] Speaker 03:
That means that plaintiff was severely privileged because he had no way of knowing that those reports were even out there.

[00:12:34] Speaker 03:
And it found that the county acted in bad faith for the same reasons.

[00:12:38] Speaker 03:
That was a clear error because it's inconsistent with the undisputed facts.

[00:12:44] Speaker 03:
What the facts show here is that the county did disclose the existence of the current reports.

[00:12:51] Speaker 03:
It did so six years earlier

[00:12:53] Speaker 03:
both in verbally, in an exchange on the record at deposition, and in a written letter that followed that deposition.

[00:13:03] Speaker 03:
So as I'm sure the court already has, I'd ask you to again look at 2ER 197 through 198.

[00:13:10] Speaker 03:
That's the letter where the county council's office informs plaintiff's council, we're not giving you the curb reports because we contend that they're privileged and not responsive.

[00:13:23] Speaker 03:
Council said the same thing.

[00:13:25] Speaker 00:
So Council, I have the letter in front of me.

[00:13:28] Speaker 00:
I'm familiar with what was said at the depot.

[00:13:33] Speaker 00:
Where in the letter does it say there are these reports specifically that we're not giving you with a description?

[00:13:43] Speaker 03:
In terms of itemization of?

[00:13:45] Speaker 00:
Yeah, in terms of some type of itemization similar to what would actually be on a privilege log.

[00:13:53] Speaker 03:
that itemization did not occur.

[00:13:57] Speaker 00:
So what it says is, as discussed, there is a critical incident review board, which I view as attorney client and attorney work product protected.

[00:14:10] Speaker 00:
But I didn't see anything in the letter which went on to say, and by the way, here's some we're withholding.

[00:14:17] Speaker 00:
Is that somewhere?

[00:14:21] Speaker 03:
I'm sorry, were you finished your answer?

[00:14:23] Speaker 03:
Yes.

[00:14:23] Speaker 03:
Okay.

[00:14:24] Speaker 03:
So if you look at the deposition testimony, I believe the concluding remark is, and those reports are kept in the Office of Legal Affairs.

[00:14:34] Speaker 03:
There's an affirmative statement that these documents exist.

[00:14:36] Speaker 03:
Here's where they are.

[00:14:37] Speaker 03:
We're not giving them to you because we contend that they're privileged.

[00:14:41] Speaker 00:
I guess I read the deposition testimony a little bit more ambiguously than you do, but it says what it says.

[00:14:49] Speaker 03:
And critically, Your Honor, in response to that, Plaintiffs' Council says on the record, more work to do.

[00:14:57] Speaker 03:
So there's a recognition by Plaintiffs' Council at that deposition in 2016 or 2017, I'm not recalling.

[00:15:05] Speaker 03:
But Plaintiffs' Council recognizes, you're withholding documents, I need to take action to recover those.

[00:15:12] Speaker 03:
So plaintiff's counsel could then have initiated the meet and confer process, could have gone to court with a motion to compel, could have served a new request for production, specifically asking for all curb reports.

[00:15:25] Speaker 03:
There was more work to do.

[00:15:27] Speaker 03:
The problem here is not that the county withheld information in bad faith.

[00:15:32] Speaker 03:
The problem here is that the county disclosed it and plaintiff didn't take action and then first went to the court about this issue after they were inadvertently disclosed

[00:15:42] Speaker 03:
well after the close of discovery.

[00:15:45] Speaker 03:
So Your Honor, was this done perfectly?

[00:15:49] Speaker 03:
I think it's fair to say the answer is no.

[00:15:51] Speaker 03:
But the court predicated its instruction on a finding of bad faith by the county, which is a fairly extraordinary finding.

[00:16:00] Speaker 03:
And we want to see evidence to support that.

[00:16:02] Speaker 03:
But the record, what it shows here, is actually good faith in an effort to disclose information.

[00:16:15] Speaker 03:
I'd like to briefly address the damages award as well because the figure is one that no matter how we articulate the standard, it's going to meet that.

[00:16:30] Speaker 03:
It is something that shocks the conscience that this case with injuries that are not atypical for this type of incident

[00:16:40] Speaker 03:
that the plaintiff received from the jury an amount that exceeds not only similar cases, but also wrongful death cases, cases where a child loses a parent or a husband loses a wife, right?

[00:16:55] Speaker 03:
So this figure, five million, it's not just that it's large, it's really not a reasoned decision.

[00:17:02] Speaker 03:
This was by design.

[00:17:04] Speaker 03:
This was at the invitation of Plaintiff's Council.

[00:17:06] Speaker 03:
Compare this number.

[00:17:08] Speaker 03:
If you want to look at how much to give Mr. Miles, let's think about the value of a Mondrian painting, right?

[00:17:14] Speaker 03:
Not asking the jury to fairly come up with a calculation that compensates him for his loss.

[00:17:19] Speaker 03:
That's not what this verdict does.

[00:17:22] Speaker 03:
Unless there are questions, I'll reserve my remaining three minutes.

[00:17:28] Speaker 02:
I have no questions.

[00:17:30] Speaker 02:
No questions.

[00:17:32] Speaker 02:
And Judd Friedland, apparently, they have none right now.

[00:17:39] Speaker 02:
So we'll go to the appellee.

[00:17:44] Speaker 04:
Thank you, Your Honors.

[00:17:46] Speaker 04:
Shane Murphy on behalf of Mikhail Miles, plaintiff and appellee.

[00:17:50] Speaker 04:
I don't even really know where to begin with this appeal.

[00:17:55] Speaker 04:
It's a case that involves a lot of

[00:18:00] Speaker 04:
very clear discovery abuses by the county that resulted in what I think are largely non-sanctions orders that were sort of set out in the form of the sanction order that then created this verdict and now has created a whole set of new misconducts by the county during the appellate process.

[00:18:23] Speaker 04:
I've never seen something like this before in my 18 or so years doing appeals and it's

[00:18:29] Speaker 04:
It's quite remarkable.

[00:18:31] Speaker 04:
And I see that the county is kind of doubling down on these arguments about how they did the discovery in this case, which was laid out very clearly by Judge Houston in his numerous orders and in the many hearings that were held on this issue.

[00:18:46] Speaker 04:
So I guess the starting point for me, I guess, is the, I'd like to start with the dog bite photo or the dog, the vicious dog photo.

[00:18:55] Speaker 04:
That photo was introduced as rebuttal evidence to the other photo that Council mentioned of Bubo that depicted Bubo as this very congenial, nice dog.

[00:19:07] Speaker 04:
And this is a dog that's used by police as a working dog that does a very specific kind of task.

[00:19:15] Speaker 04:
Council for plaintiff wanted to make sure that the jury was not given the misimpression that this dog is a nice dog.

[00:19:21] Speaker 04:
That the experience that Mikhail Miles had that night was somehow one that involved a dog that you would spend time with your children with.

[00:19:29] Speaker 04:
So the dog was never introduced as the court was asking about for the purposes of evidence or for purposes of damages.

[00:19:35] Speaker 04:
It was introduced to rebut the impression of what this dog was and the role that it played that night.

[00:19:40] Speaker 00:
Was there any evidence that the

[00:19:44] Speaker 00:
that Bubo that night looked like this evil smiling dog or that your client saw Bubo look like that?

[00:19:52] Speaker 04:
There's a tremendous amount of evidence that Bubo was acting extremely aggressively throughout the entire encounter.

[00:20:01] Speaker 04:
And that Deputy Banks was using Bubo very specifically to create a lot of tension and anxiety or whatever it was that he was doing in that context.

[00:20:09] Speaker 04:
There's testimony the dog was barking furiously the entire time.

[00:20:13] Speaker 04:
It made it impossible for Miles to, Michael Miles to hear what any of the officers were telling him to do.

[00:20:19] Speaker 04:
And at one point the dog actually bit Miles and presumably when the dog did that, it looked a lot like what the photo of the dog that depicts

[00:20:28] Speaker 04:
an attacking dog look like.

[00:20:29] Speaker 04:
And that is, in fact, what Deputy Banks testified to.

[00:20:32] Speaker 04:
This was a fair and accurate representation of what an attack dog that is used by the police looks like before they bite.

[00:20:40] Speaker 04:
And that's what Bubo did.

[00:20:42] Speaker 04:
It bit Miles.

[00:20:44] Speaker 04:
So I think that there's enough evidence there to lay a foundation, one, that that was what Bubo looked like, and two, that Bubo was doing things like that that night.

[00:20:57] Speaker 04:
I think the big issue here though from our standpoint is that this case really is a product of an enormous amount of discovery gamesmanship by the county.

[00:21:06] Speaker 04:
It's interesting that they're making this argument that nothing that they did shows bad faith and yet the arguments that they want to focus on are

[00:21:16] Speaker 04:
this sort of song and dance game that they played with the curb reports, but they don't really talk about the Valdez issue, the complaint that was filed, where the county essentially receives the complaint in close proximity to when they file their summary judgment motion.

[00:21:30] Speaker 04:
Plaintiff's Council attempts to get the document in front of the court after reaching out to county council to try and get a certified copy of the report county council telling them.

[00:21:42] Speaker 01:
Sorry, can I just stop you for a second?

[00:21:43] Speaker 01:
So I'm not sure that the connection between the instruction about the discovery abuse and damages was preserved by the other side, but let's just say for a second that this argument was preserved.

[00:21:56] Speaker 01:
Okay.

[00:21:56] Speaker 01:
Why would it be appropriate to let the jury sort of sanction the city?

[00:22:03] Speaker 01:
I mean, it seems like the discovery abuses, to the extent they deserved a monetary sanction, I would have thought that should be in a sanction from the judge and not sort of

[00:22:11] Speaker 01:
given to the jury to decide as damages.

[00:22:15] Speaker 04:
I'm not sure I follow because I don't know that it was given to the jury to decide as damages.

[00:22:20] Speaker 01:
I think that's what the other side is arguing today.

[00:22:22] Speaker 01:
I don't really think it was in the opening brief, I think, but the argument seems to be that this instruction that was given about discovery abuse inflamed the jury to punish the government by giving more damages.

[00:22:39] Speaker 04:
I mean, I guess your guess is as good as mine.

[00:22:42] Speaker 04:
It wasn't briefed in the papers.

[00:22:44] Speaker 04:
That wasn't what they were arguing when they were talking about the instruction.

[00:22:47] Speaker 04:
So I don't know that it was given to the jury.

[00:22:50] Speaker 04:
I don't think that it would be relevant.

[00:22:52] Speaker 04:
I don't know.

[00:22:55] Speaker 01:
You do agree, though, that that wouldn't be.

[00:22:58] Speaker 01:
If the instruction had added and you can factor this into your damages calculation, that would be wrong.

[00:23:05] Speaker 04:
Correct, yes.

[00:23:07] Speaker 00:
All right.

[00:23:09] Speaker 00:
Go ahead.

[00:23:09] Speaker 00:
Please finish answering.

[00:23:10] Speaker 04:
Well, I had an anodying comment about how juries are supposed to follow the instructions they're given, and the instruction didn't tell them to factor that into the damages award.

[00:23:18] Speaker 04:
But go ahead.

[00:23:20] Speaker 00:
All right.

[00:23:20] Speaker 00:
So let me turn to an issue that concerns me about the amount of the damages unrelated to the concealment instruction.

[00:23:30] Speaker 00:
When I read the arguments

[00:23:34] Speaker 00:
that were made to the jury by counsel.

[00:23:38] Speaker 00:
I have real concerns that in many places, counsel was asking the jury to punish the defendants.

[00:23:48] Speaker 00:
And I'll give you a couple of examples of areas of my concern.

[00:23:54] Speaker 00:
For ER 756,

[00:23:58] Speaker 00:
We need you to say to the jury, we need you to say to the county, we don't want you to have that policy.

[00:24:04] Speaker 00:
You need to reform.

[00:24:05] Speaker 00:
You need to get your act together at ER 761.

[00:24:11] Speaker 00:
We ask you, the jury, to show courage.

[00:24:15] Speaker 00:
Make them take responsibility.

[00:24:17] Speaker 00:
Tell them we don't like what you're doing at the Sheriff's Department.

[00:24:22] Speaker 00:
SCR 6285.

[00:24:28] Speaker 00:
We're going to ask for significant damages for what they did to him.

[00:24:33] Speaker 00:
and also for what they need to do to reform and change their policies.

[00:24:39] Speaker 00:
And then at ER 730, not just to make this man whole, but to say that the county itself had policies in place that need to change.

[00:24:52] Speaker 00:
They need to be accountable.

[00:24:54] Speaker 00:
It's time for reform.

[00:24:56] Speaker 00:
You can do that with your verdict, you and you alone.

[00:24:59] Speaker 00:
As I read these and other statements that were made to the jury, what I see is an appeal to the jury to punish the defendants in the same exact way that there would be an appeal to punish defendants in a case where there was a punitive damages instruction.

[00:25:23] Speaker 00:
Some of these things sound just like a punitive damages instruction to me.

[00:25:29] Speaker 00:
Why would it be, how would these be justified as not, as an attempt to get them to award compensable damages as opposed to punish the defendants?

[00:25:41] Speaker 00:
And that's a real big concern of mine here.

[00:25:45] Speaker 04:
And it's a good question.

[00:25:47] Speaker 04:
I think that the answer lies in, one, what the law permits, and then two, how it was presented to the jury.

[00:25:56] Speaker 04:
The concept of MNEL as a liability structure is to create an incentive for entities like the San Diego Sheriff's Department and County to reform policies and practices that they have that encourage, facilitate, or otherwise endorse really bad behavior on the part of their employees and people acting on behalf of them.

[00:26:22] Speaker 04:
a kind of like an essential component of the Monell liability in 1983 actions is to create that incentive.

[00:26:32] Speaker 04:
And that was actually discussed by the court and counsel when this issue was brought up, you know, to what extent can this be presented to the jury?

[00:26:40] Speaker 04:
And the court concluded that it was fair for counsel, for plaintiff to argue

[00:26:45] Speaker 04:
that in imposing liability, you are creating that incentive.

[00:26:50] Speaker 04:
So you're doing kind of a twofold thing.

[00:26:52] Speaker 04:
One, you're imposing liability on the county for the harm that was caused, but you're also creating a deterrent for future behavior.

[00:26:58] Speaker 04:
The basics of that are is that that's a recognized thing as laid out in the brief, that that is a policy consideration of Monell, and that is a kind of a fair game argument or fair game structure for what Monell does and how it should operate.

[00:27:13] Speaker 04:
The other component to this is how it was presented to the jury.

[00:27:16] Speaker 04:
And the jury was told about this in the context of the liability argument.

[00:27:22] Speaker 04:
The closing argument was split into two parts.

[00:27:25] Speaker 04:
You had the first part, which was liability, and the second part, which was damages.

[00:27:30] Speaker 04:
And all of the stuff that was said by counsel during closing argument that had to do with reform and creating a deterrence for the county,

[00:27:40] Speaker 04:
was presented in the context of liability and was not connected to damages.

[00:27:46] Speaker 04:
And so, I mean, plaintiff's counsels are kind of put into these sticky situations where they're trying to present to the jury the job that they are to perform.

[00:27:54] Speaker 04:
You go through the instructions, you're going through all the items, you know, these different elements that they're supposed to establish.

[00:28:00] Speaker 04:
You're explaining to them the rationale for why this stuff exists so they can understand the job that they're to perform.

[00:28:06] Speaker 04:
But at the same time, you're kind of caught between what it is that the policy objectives of something like a Monell claim are and what types of damages are actually allowed to be awarded.

[00:28:18] Speaker 00:
And was that, as what you just said, also applicable to, so over lunch I had a chance to reflect on the old saying, revenge is a dish best served cold?

[00:28:31] Speaker 04:
I mean, I, you know, there's a lot of extremely flowery language that's used in closing arguments.

[00:28:36] Speaker 04:
And there's an enormous amount of discretion given to plaintiffs and defense counsels to make their arguments.

[00:28:42] Speaker 04:
I, you know, I can't, I can't attest for, I cannot, you know, it's, if you were to penalize a counsel for using spicy language in a closing argument, this, the docket on this court would be a very deep one indeed.

[00:28:56] Speaker 04:
But in that context, you're looking at a person who was, the way this is being presented to the jury by the plaintiff is that you're looking at a person who wasn't a person who committed crime, who wasn't a suspect, who hadn't done anything wrong that night, and was essentially plucked, as the hand of God would operate, was plucked out of his world and put into this incredibly horrible experience.

[00:29:25] Speaker 04:
And there's a kind of expectation of tying those compensatory damages to a sense of justice, so to speak.

[00:29:33] Speaker 04:
And I think that's what counsel was speaking to.

[00:29:35] Speaker 04:
I don't think that there is a deep and lengthy appeal to punitive style damages awards because counsel for plaintiff was very aware that this is a fine line that needed to be towed because of the discussions that they had with the court and that it was

[00:29:51] Speaker 04:
On the one hand, his job to make sure the jury understood what they were doing and advocate zealously for his client.

[00:29:58] Speaker 04:
And on the other hand, not transgress into that boundary where they are asking for impermissible punitive damages.

[00:30:06] Speaker 01:
Does that answer your question?

[00:30:07] Speaker 01:
Was there an objection about the revenge comment?

[00:30:11] Speaker 04:
No.

[00:30:13] Speaker 04:
There weren't a lot of objections at all.

[00:30:17] Speaker 04:
So most anything.

[00:30:19] Speaker 04:
I don't think there were, there was an objection to the Mendorian painting that was lodged.

[00:30:25] Speaker 04:
I think that was the only objection during actual closing.

[00:30:28] Speaker 00:
There was also an objection, I think, at ER 807.

[00:30:36] Speaker 00:
Tell the community this isn't okay, and that was overruled.

[00:30:40] Speaker 04:
Right, but that wasn't related.

[00:30:41] Speaker 04:
That's a voice of the community in limine argument.

[00:30:44] Speaker 04:
That wasn't, sorry.

[00:30:47] Speaker 00:
No, no, go ahead.

[00:30:48] Speaker 04:
So that wasn't specifically related to the punitive component.

[00:30:52] Speaker 04:
There was an eliminate that had been filed by Belief Plaintiff's Council related to this voice, the community argument.

[00:30:59] Speaker 04:
And that was my understanding what that objection was targeted at.

[00:31:03] Speaker 00:
Well, and the district court, in your view, okayed what you said.

[00:31:09] Speaker 00:
And in the discussions with the district court, the district court's decision was not what defendants had wanted, right?

[00:31:20] Speaker 04:
In the context of that distinct legal issue, correct, yes.

[00:31:23] Speaker 04:
And I think, you know, you have one objection to a nearly 100 page long closing argument.

[00:31:28] Speaker 04:
It's hard to say that that's like the pervasive style of misconduct that would give rise to a prejudiced verdict.

[00:31:34] Speaker 04:
I mean, by and large, we're looking at four, I think defense counsel points out four instances of what it considers to be an appropriate commentary in a enormously long closing argument.

[00:31:48] Speaker 00:
Well, we also have to look at the amount of the general damages, right?

[00:31:56] Speaker 04:
Well, I don't know that the, I mean, the argument isn't that's, okay, I mean, I suppose.

[00:32:03] Speaker 04:
It's sort of an argument that leads back to itself as a tautology in a sense, like the damages just, you know, justify making the argument that this is an improper style of argument.

[00:32:15] Speaker 00:
Well, I mean, that's not quite the way I would look at it.

[00:32:17] Speaker 00:
I would look at it as if there had been general damages of $100,000.

[00:32:22] Speaker 00:
It would be like, even if there were some error here, it was obviously harmless.

[00:32:27] Speaker 04:
Well, I think in this context, I know this is a good segue into the damages issue.

[00:32:34] Speaker 04:
The $5 million damages award is not a wildly large number.

[00:32:40] Speaker 04:
This is a young man who had no criminal history, who was subjected to this horrifying and terrible experience and wound up with admittedly largely invisible injuries, but injuries that for most people that suffer from PTSD could be not just lifelong, but devastating and life-altering, debilitating conditions.

[00:33:01] Speaker 04:
And so if you take someone who's relatively young, as Mikhail Miles was, and change him for the rest of his life,

[00:33:11] Speaker 04:
Um, it's, that's a, there's a lot of time on this planet spent laboring under the weight of a harm that was, you know, imposed upon him for reasons that aren't connected to anything that he did other than just having the misfortune of being in the wrong place at the wrong time and having the, the, the state or, you know, the county as it were, you know, and it's agents acting out in this horrifying way.

[00:33:37] Speaker 04:
So the $5 million number when you spread it out over the entire lifetime of this particular individual who looked like a very promising young man at the time in terms of non-economic harm is not some enormous number.

[00:33:51] Speaker 04:
It's not a small number, but it's not some outrageously large number.

[00:33:57] Speaker 04:
So I think if you look at this from the standpoint of was the jury inflamed by these arguments, Plaintiff's Council was asking for

[00:34:07] Speaker 04:
really large numbers, or was at least intimating at the idea of very, very large numbers.

[00:34:12] Speaker 04:
And to see that the jury worked its way to this reason $5 million number, you know, I think it was 800,000 for past non-economics and 4.2 for futures.

[00:34:24] Speaker 04:
It shows that the jury was not inflamed.

[00:34:27] Speaker 04:
I mean, you would expect to see a much larger number.

[00:34:29] Speaker 00:
You mean because, so that would mean if in a future case, a lawyer asked for $5 billion in damages and the jury only gave one?

[00:34:39] Speaker 00:
that would be evidence that it wasn't excessive because they only gave the plaintiff's lawyer 20% of what he wanted?

[00:34:46] Speaker 04:
Well, it's a factor to consider.

[00:34:48] Speaker 04:
It is something that plays in the analysis.

[00:34:51] Speaker 04:
I agree with you, if someone were to ask for $5 billion and they got $1 billion, the number, well, it would depend on the harm, but the $1 billion seems outrageous in a vacuum.

[00:35:02] Speaker 04:
But in this context, $5 billion doesn't seem outrageous given the injuries that were sustained by Mr. Miles.

[00:35:09] Speaker 04:
And I mean, it is operating in a context where if you had a $1 billion claim, an ask, and you got

[00:35:17] Speaker 04:
$2 million as a verdict, that delta between those two says something about what the jury did and how they evaluated the request and the harm that was actually sustained by the plaintiff.

[00:35:31] Speaker 04:
I do want to circle, just spend a moment on the sanctions motion because I do find like deeply troubling the way that this particular appeal was presented to the court, the way the arguments were made.

[00:35:43] Speaker 04:
There was a lot of,

[00:35:46] Speaker 04:
Prejudice arguments that were not really founded in a factual or legal basis.

[00:35:51] Speaker 04:
There was a lot of what struck me as being purely frivolous arguments.

[00:35:54] Speaker 04:
There was an extremely distorted presentation of the record.

[00:35:58] Speaker 04:
Many of the hearings that were held by the court dealing with the sanctions issues were either not included or only a portion of them were included.

[00:36:07] Speaker 04:
The way the ruling was arrived at by the court and the analysis and reasoning that it employed wasn't accurately or fairly represented in the briefs.

[00:36:15] Speaker 04:
And you know, I understand that counsel is given an opportunity to be a zealous advocate, but there is a point at which the job stops being advocacy and starts being something different.

[00:36:26] Speaker 04:
And what's striking about this is that this is a case that involves, you know, a recognized amount of misconduct and obfuscation by counsel and the county.

[00:36:37] Speaker 04:
for the county throughout the trial proceedings.

[00:36:40] Speaker 04:
And it really did create an enormous burden on the part of plaintiff to not just have to counter the arguments and address in a very straightforward way.

[00:36:49] Speaker 04:
the issues on appeal, but to have to go and like correct the record and actually include these portions that were excluded and give that further context and explain why what had been said is not just, you know, sort of a advocates position on this, but really a misrepresentation of what happened and how the rulings were arrived at.

[00:37:09] Speaker 04:
I mean, I think that it's endemic of the fact that like many of the issues that are raised were not objected to.

[00:37:14] Speaker 04:
There's a kind of like the Miles or the Monell argument they're making that the claim should not have been revived is kind of this absurd argument where there's a jury verdict that supports the Monell verdict.

[00:37:27] Speaker 04:
And they're not contesting that substantial evidence doesn't support the Monell verdict.

[00:37:31] Speaker 04:
But at the same time, they think that they should argue that the court should have not revived the Monell claim

[00:37:36] Speaker 04:
even though the reason it was struck in the first place is because of misconduct they engaged in in connection with the summary judgment motion.

[00:37:43] Speaker 04:
The whole thing is like this sort of Rube Goldberg device of disingenuous obfuscation, and I found that to be troubling.

[00:37:51] Speaker 04:
I've never filed a motion for sanctions in an appeal before, and I felt that this was a compelling context.

[00:37:58] Speaker 04:
And I don't think that the damages award in this context really was outrageous.

[00:38:03] Speaker 04:
I don't think it went beyond what was appropriate given who he was, a preschool teacher and who he, a young preschool teacher, family person, and who he became, this person who was very affected by a permanent disability like PTSD, anxiety, depression.

[00:38:18] Speaker 04:
It appears that I'm out of time.

[00:38:22] Speaker 04:
So unless there are any further questions from the court.

[00:38:27] Speaker 02:
I have no question.

[00:38:28] Speaker 02:
Okay.

[00:38:40] Speaker 02:
What was there?

[00:38:43] Speaker 02:
Time for appellant left.

[00:38:48] Speaker 03:
Okay, sorry about that.

[00:38:50] Speaker 03:
So a few points in response.

[00:38:56] Speaker 03:
Judge Freeland, you asked about whether there was a link in the briefing between the concealment of evidence instruction and the damages amount awarded.

[00:39:10] Speaker 03:
We draw that out at page two, two through three, right at the outset.

[00:39:14] Speaker 03:
We say that the $5 million verdict makes sense only as an effort by the jury to punish the county for its alleged conduct and its alleged concealment of evidence

[00:39:25] Speaker 03:
to respond to just a few points that my colleagues.

[00:39:30] Speaker 01:
Can I just ask, I mean, so yes, that sentence is there, there's a gesture at it, but there's no legal argument where you say this

[00:39:39] Speaker 01:
instruction led to this improper punitive damages thing through the damages.

[00:39:45] Speaker 01:
I mean, I know you make that sort of argument in other places, but not as to this.

[00:39:49] Speaker 01:
And I don't think in the trial either you said, whoa, whoa, whoa, if you give this instruction, it's going to have this damages effect and that's going to be a punitive thing you're not allowed to do.

[00:39:59] Speaker 01:
I'm not even sure you made an argument anywhere that the sum total of all of this was leading to a punitive effect that isn't proper.

[00:40:06] Speaker 01:
Did you?

[00:40:07] Speaker 03:
I don't think we use the terminology of punitive damages.

[00:40:11] Speaker 03:
We did request bifurcation, which was denied, that could have helped cure some of these issues.

[00:40:18] Speaker 03:
But yes, our contention is that both the liability finding and the amount are infected by

[00:40:27] Speaker 03:
not just by the attorney misconduct, but also by the district court's instruction.

[00:40:33] Speaker 01:
I'm just thinking that the issue of whether this instruction led to improper damages is somehow at most on plain error review of some sort, because I just don't think this link was drawn in the trial in a way that it could have been corrected the way you're now trying to say it at oral argument today.

[00:40:53] Speaker 03:
Well, I mean, the willful concealment instruction was strongly objected to.

[00:40:58] Speaker 03:
I don't know if there was.

[00:40:59] Speaker 01:
But on totally other grounds, on the grounds that it was false.

[00:41:02] Speaker 01:
And that's a different issue.

[00:41:04] Speaker 01:
And that's what you argued in your brief to us, too, was that it was false, which is a different issue than that that causes this legal problem with the damages.

[00:41:15] Speaker 03:
I understand the court's understanding of that.

[00:41:22] Speaker 03:
Thank you.

[00:41:23] Speaker 03:
Very limited time, I would just like to respond to Council's suggestion that closing argument was split into a clean line between merits argument and damages argument.

[00:41:38] Speaker 03:
No, there was also rebuttal argument at the conclusion.

[00:41:41] Speaker 03:
And that's where Attorney Balaban made the explicit request for revenge, which is, I think, plainly improper.

[00:41:51] Speaker 03:
So we can't sanitize this as a request for a deterrence.

[00:41:54] Speaker 03:
This was a request to punish and to take revenge.

[00:42:01] Speaker 03:
final point, the idea that there was one objection during closing to over 100 pages of argument.

[00:42:08] Speaker 03:
During the green portion of the closing argument, which was the purported damage instruction, county council raised a, multiple times said, this is argument number two, this material should not be appropriate.

[00:42:22] Speaker 03:
Those were overruled.

[00:42:24] Speaker 03:
And eventually he said, may I have a standing objection on this?

[00:42:28] Speaker 03:
And the district court said preserved.

[00:42:32] Speaker 01:
But sorry, what was the objection that was the standing objection?

[00:42:34] Speaker 01:
Was it about this motion and lemonade?

[00:42:36] Speaker 03:
The objection was with respect to plaintiffs' counsel making improper damages arguments in the closing argument using language that wasn't tied to valuation of damages and instead calling for punishment or a message for the community, that sort of mismatch between how the jury was instructed and how the law requires them to decide economic damages.

[00:43:06] Speaker 01:
You have been to have the page for where the standing objection was explained, what it was?

[00:43:13] Speaker 03:
The preserved objection?

[00:43:17] Speaker 03:
No.

[00:43:19] Speaker 03:
I could find it in short order, however, and present that to the clerk if that would be helpful.

[00:43:25] Speaker 01:
I'd like to look again at how that was presented, so it would be helpful to me to have the page.

[00:43:32] Speaker 02:
Just present the page sites to the clerk of the court, and the clerk will advise the panel.

[00:43:44] Speaker 03:
Not through a letter, through I should just contact the clerk.

[00:43:49] Speaker 02:
I think it should be in writing.

[00:43:52] Speaker 03:
Unless there any further questions, we'll submit them.

[00:44:00] Speaker 02:
Okay, I have no further questions myself.

[00:44:06] Speaker 02:
Thank you.

[00:44:07] Speaker 02:
Hearing none, this case shall be submitted.

[00:44:12] Speaker 02:
And again, I want to thank Council on both sides for the excellent arguments in this challenging and difficult case.

[00:44:24] Speaker 02:
And I also want to thank Council

[00:44:29] Speaker 02:
appearing on short notice to do this remotely so that we could proceed with the appeal despite the great devastation from the fires in California.

[00:44:51] Speaker 02:
So thank you.

[00:44:54] Speaker 02:
The case is now submitted.

[00:44:57] Speaker 02:
And the parties will hear from us in due course.

[00:45:01] Speaker 02:
I think that adjourns us.

[00:45:06] Speaker 03:
Thank you, Your Honors.

[00:45:07] Speaker 01:
This court for this session stands adjourned.