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Decision Declining to Apply California Statute Stands
Ninth Circuit Won’t Rehear, En Banc, Determination by Three-Judge Panel That Code of Civil Procedure’s Bar on
Damages for Pleasure Decedent Would Have Enjoyed If Not Killed Conflicts With Federal Civil Rights Statute
By a MetNews Staff Writer
Active judges of the Ninth U.S. Circuit Court of Appeals have voted—over the protest of 11 members of the court—not to rehear, en banc, a decision of a three-judge panel declaring that California’s ban on “loss of life” damages is inconsistent with 42 U.S.C. 1983, which authorizes damages for civil rights violations by state or local authorities.
The decision came in a case with facts resembling those involving George Floyd in Minneapolis. A suspect died from asphyxia as the result of the use by police of a restraint hold on his neck. At issue was a $3.6 million component of a $13.2 million award in favor of the decedent’s children and father.
In Valenzuela v. City of Anaheim, filed Aug. 3, Circuit Judge John B. Owens concluded that California’s Code of Civil Procedure §377.34.5 which bars damages for the pleasure a decedent would have derived from life had there not been a wrongful death, contravenes the policies underlying §1983. That conclusion, he said, is dictated by the Ninth Circuit’s 2014 holding in Chaudhry v. City of Los Angeles.
Binding Precedent
He wrote:
“We see no meaningful way to distinguish Chaudhry from this case. Both involve deaths caused by a violation of federal law, and both consider the limits that California’s § 377.34 places on § 1983 plaintiffs—limits that we have squarely rejected. Prohibiting loss of life damages would run afoul of § 1983’s remedial purpose as much as (or even more than) the ban on pre-death pain and suffering damages.”
Owens was joined by District Court Judge Michael H. Simon, a Superior Court judge of the District of Oregon, sitting by designation.
Circuit Judge Kenneth K. Lee dissented, saying:
“As tragic as his death was, we must follow the law—and California law prohibits damages for loss of life. That means Valenzuela’s estate and his family members should receive $9.6 million instead of $13.2 million. The majority opinion, however, holds that they are entitled to the full $13.2 million, ruling that federal common law supplants California law because it is “inconsistent” with § 1983’s goals of deterrence and compensation….
“But an award of $9.6 million (for wrongful death and pain and suffering) is not “inconsistent” with deterrence or compensation. We can respect state law enacted by the people of California and still meet the twin policy goals of §1983. We should not jettison California state law to maximize damages for §1983 plaintiffs.”
Supreme Court Decision
Senior Circuit Judge Carlos Bea authored a statement regarding the denial of a rehearing, filed Wednesday, in which nine active judges joined, with Circuit Judge Daniel P. Collins partially joining. Bea maintained that Owens’s decision is inconsistent with the U.S. Supreme Court’s 1978 decision in Robertson v. Wegmann.
There, a man brought an action under §1983 in the U.S. District Court for the Eastern District of Louisiana; before it came to trial, he died.
“The question presented.” Justice Thurgood Marshall wrote, “is whether the District Court was required to adopt as federal law a Louisiana survivorship statute, which would have caused this action to abate, or was free instead to create a federal common law rule allowing the action to survive.”
Applying the Louisiana survivorship statute, he declared:
“We conclude that the mere fact of abatement of a particular lawsuit is not sufficient ground to declare state law ‘inconsistent’ with federal law.”
Applies Robertson
Bea observed that California law “is consistent with § 1983 because it makes available every category of damages, except post-death ‘hedonic’ damages,” remarking:
“It stands to reason that if abatement of an entire cause of action can be not inconsistent with the policy goals of § 1983, a law prohibiting a single category of damages should be not inconsistent as well.”
The senior judge took note of Owens’s observation that California’s §377.34.5 has “the perverse effect of making it more economically advantageous for a defendant to kill rather than injure his victim.” He commented:
“To think that a police officer, when deciding to use deadly force, calculates the difference in exposure of himself and his employer to damages for the victim’s pain and suffering versus wrongful death damages arising from the instant death of the victim is necessarily based on the ‘rather far-fetched assumption’ that the policeman had information about the suspect’s family and earning potential, and had the sang-froid, the cynicism, and the time to calculate the optimal result in damage reduction before he used that force.”
Practical Consideration
He went on to say:
“Post-death ‘hedonic’ damages are difficult to calculate and largely speculative. In contrast, in a wrongful death action, courts use evidence of the decedent’s earning capacity to calculate a fair award. As to pre-death pain and suffering, the jury can use its own experience with pain and suffering. But how does a jury put a number on the pleasure the particular decedent would have enjoyed from life had it not been cut short?”
Sec. 377.34 reads:
“In an action or proceeding by a decedent’s personal representative or successor in interest on the decedent’s cause of action, the damages recoverable are limited to the loss or damage that the decedent sustained or incurred before death. including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement.”
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