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Gilbert v. City of Salinas1/29/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Plaintiff, Kenneth Gilbert claimed that he was injured by police officers executing a search warrant at his residence. Trial was bifurcated and the jury rendered a special verdict following the liability phase in which it found that the defendant, City of Salinas (City) was negligent, but that the four named police officers were not. Because the issue of the City's liability had gone to the jury on a theory of respondeat superior, the jury's findings were not consistent. The plaintiff and the City each filed motions for judgment notwithstanding verdict (JNOV) before proceeding on the issue of damages. The trial court granted the defense motion, and entered judgment for all defendants.
Plaintiff appeals the judgment, contending: 1) the trial court had no power to hear defendant's JNOV motion before all issues were decided; 2) the trial court erred in excluding evidence of misrepresentations made in connection with the search warrant; and 3) the trial court erred in granting defendant's motion for JNOV because the jury's verdict was not inconsistent. We will affirm.
Factual Background
Plaintiff had suffered a back injury on the job years ago. He had undergone several back surgeries over the years, his most recent having taken place in May 1997. On October 21, 1997, plaintiff was sitting in his living room eating a sandwich when a team of police officers burst through his front door. The next thing he knew, the officer whom he later identified as defendant Maiorana, and possibly one other, picked him up and threw him over the coffee table. Plaintiff landed on the rug, face down. Even though plaintiff did not resist, and was fully cooperative, Officer Maiorana placed his boot in plaintiff's back and a gun to his head and restrained him in that position for 10 to 15 minutes. Plaintiff cried out and pleaded with Officer Maiorana to let him up, explaining about his back, but Officer Maiorana just told him to shut up. Two officers briefly assisted in restraining the plaintiff after he was down. Plaintiff did not identify these two officers, but he did say that their conduct did not injure him.
The officers had come to plaintiff's home to execute a search warrant. The warrant sought firearms that the police claimed were owned by the adult son of plaintiff's companion, Shirley Kline. Ms. Kline, who arrived home after the search was in progress, also pleaded with the officers to get off the plaintiff's back. In response, one of them told her they would let him up just as soon as she showed them where the guns were hidden.
Procedural Background
Plaintiff sued 15 individual police officers, the Salinas Police Department, two department divisions, and the City of Salinas. His verified complaint contained a single cause of action for negligence, and alleged that he was injured when he was "thrown violently to the hard floor by one of the raiding party and kept down with a forceful knee and foot to his back." The Police Department and the divisions were dismissed following demurrer. Plaintiff's written discovery revealed that one of the 15 individual defendants had not been present at the search. The matter proceeded against the 14 individuals who had been present and against the City.
After the close of the plaintiff's case, the defense made motions for non-suit. The trial court gran
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