Ninth Circuit: No Exception to Due Diligence in Discovery Even for “Conclusive Evidence”
by Anthony W. Accurso
On August 27, 2024, the United States Court of Appeals for the Ninth Circuit affirmed a $500,000 jury award for a Los Angeles Lakers basketball fan shot with a rubber bullet by city cops attempting to “manage” a boisterous crowd after a championship win. Though not directly related to detention, PLN is reporting the ruling because it offers important guidance regarding diligence that must be exercised during case discovery.
Kimberly Marroquin watched on television as the Lakers beat the Miami Heat for the NBA championship on October 11, 2020. Her friend, Brenda Gomez, suggested they go out to celebrate at the Staples Center in downtown L.A., where the team’s home games are played. It was peaceful when they arrived—the championship game occurring across the country in Florida— but eventually “the crowd began lighting smoke bombs, doing doughnuts with their cars, and throwing rocks and bottles at police officers,” as the Court later recalled.
At 8:50 p.m., city police (LAPD) declared an unlawful assembly at 12th and Figueroa Streets. At 9 p.m., LAPD officers, including Dimaggio Rico, established a skirmish line facing south on Figueroa St. Four minutes later, Rico discharged a 40mm “less lethal rubber projectile round.” He was the only officer to discharge his weapon, and he claims to have aimed at, and hit, a man who threw a glass bottle at police.
But if this was the only shot fired, it didn’t hit who he said it did; Marroquin was struck in the head at that time and later testified that, while lying on the ground, she saw the rubber bullet on the ground next to her. She experienced symptoms of a concussion and was taken to a hospital by Gomez. Marroquin was diagnosed with a concussion. She subsequently suffered various symptoms, “including migraines, confusion, difficulty focusing, and memory issues,” which “impacted her work” and even “caused her to become anti-social.”
Marroquin filed a state Public Records Act (PRA) request for footage taken that evening on the body-worn cameras of the cops on the skirmish line. LAPD denied that any such footage existed. Marroquin then filed a lawsuit against the city in federal court for the Central District of California, and the footage was produced during discovery, showing Rico firing the weapon. At that time, she amended her complaint to name Rico.
At trial, Marroquin was awarded $1.5 million in damages against the City and $1 against Rico. The City cried foul at this massive discrepancy, and Plaintiff consented to a retrial on damages alone. The jury then “awarded Marroquin a total of $500,000.00 against both Defendants, and the district court entered final judgment,” as the Ninth Circuit recalled.
Prior to that second trial in 2023, the City obtained footage from surveillance cameras outside the Staples Center which it claimed offered conclusive proof that Rico could not have shot Marroquin, and its lawyers filed a motion to vacate the verdict. The district court denied the motion on the grounds that the City failed to exercise due diligence in obtaining the footage, making no exception even if it were “conclusive evidence.”
The City turned to the Ninth Circuit, but it affirmed the district court’s judgment. Defendants argued that the issues of liability and damages were so inextricably bound to one another that the district court abused its discretion in granting a retrial on damages alone. But the Ninth Circuit agreed with the lower court that “it was highly likely that the jury’s confusion when awarding damages was caused by an improper instruction on the verdict form to apportion damages.” Further, the Court said, defendants had no evidence to support their contention that the jury’s confusion extended to liability, and “the jury’s improper award of damages did not taint its findings on liability.” On top of that, Defendants offered “no evidence to support their contention that the jury’s confusion extended to liability.”
In addition, the Court found no abuse of discretion in the lower court’s denial of Defendant’s motion to vacate the verdict, agreeing that “Defendants’ failure to show reasonable diligence was fatal to their motion”—regardless of how “conclusive” it might be. Accordingly, judgment of the district court was affirmed. Before the Court, Marroquin was represented by attorney Los Angeles attorney Steven B. Stevens as well as Ashley M. Conlogue and Kevin S. Conlogue of Conlogue Law LLP in Beverly Hills. See: Marroquin v. City of L.A., 112 F.4th 1204 (9th Cir. 2024).
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