Free Memorandum - District Court of Arizona - Arizona

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GAONA LAW FIRM
A PROFESSIONAL CORPORATION

3101 NORTH CENTRAL AVE, SUITE 720 PHOENIX, ARIZONA 85012 _____________

(602) 230-2636 Fax (602) 230-1377

David F. Gaona, State Bar No. 007391 Nicole Seder Cantelme, State Bar No. 021320 Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA MONICA ORTEGA-GUERIN, Plaintiff, vs. CITY OF PHOENIX, FRANK FAVELA, AND FRANK PERALTA Defendants. The issue raised by Plaintiff's counsel of whether the City will indemnify the individual employees in this case is not relevant nor is it admissible on the issue of damages. Larez v. Holcomb, 16 F.3d 1513, 1518 (9th cir. 1994) ("It has long been the rule in our courts that evidence of insurance or other indemnification is not admissible on the issue of damages. . . ."). Indemnification by the City "is irrelevant to the determination of a suitable award." Id. at 1521. Allowing the jury to consider the issue of indemnification is reversible error. Id. at 1519, 1521 ("Informing the jury of indemnification thus would provide a windfall to plaintiffs at taxpayers' expense, with little appreciable increase in deterrence."). The decision to indemnify is in the City's sole discretion, and neither this Court nor the Plaintiff has the ability to force the City to decide one way or the other whether No. CV04-0289 PHX MHM DEFENDANTS' TRIAL MEMO REGARDING INDEMNIFICATION

Case 2:04-cv-00289-MHM

Document 62

Filed 12/08/2005

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3101 North Central Avenue ­ Suite 720 Phoenix, Arizona 85012

to indemnify its employees. Moreover, to require undersigned counsel to discuss or argue the City's decision (or lack thereof) to indemnify would create a conflict of interest between the City and the City's employees in this case, which would have to be addressed before this trial could continue. Because the issue of indemnification has no relevance to this case it should not even be discussed or argued, and this case should proceed forward as if the issue was never raised. The only claim for punitive damages in this case is against the individual employees under § 1983. A municipality is immune from punitive damages under the statute. 42 U.S.C. § 1983; Mitchell v. Dupnik, 75 F.3d 517, 527 (9th Cir. 1996). Additionally, Ninth Circuit precedent is clear that punitive damages cannot be awarded against the individual employees in their official capacities because an assessment of punitive damages against a city employee in his official capacity "is in reality an assessment against the [city], which is immune from such damages.'" Mitchell, 75 F.3d at 527; see also Larez v. City of Los Angeles, 946 F.3d 630, 646 (9th Cir. 1991) ("A suit against a governmental officer in his official capacity is equivalent to a suit against the governmental entity itself."). Therefore, because punitive damages can only be assessed against the individual in his individual capacity, only the individual's financial condition is relevant to the jury's assessment of a punitive damages award under § 1983. See Larez. The only relevant financial condition that can be placed before the jury in this case is the financial condition of the individual defendants because the City is immune from such damages, indemnification or not. DATED this 9th day of December, 2005. GAONA LAW FIRM /s/ David F. Gaona David F. Gaona Nicole Seder Cantelme Attorneys for Defendants
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GAONA LAW FIRM

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3101 North Central Avenue ­ Suite 720 Phoenix, Arizona 85012

CERTIFICATE OF SERVICE I hereby certify that on December 9, 2005December 8, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Stephen G. Montoya, Esq. MONTOYA JIMENEZ, P.A. The Great American Tower 3200 North Central Avenue, Suite 2550 Phoenix, Arizona 85012 I further certify that on December 9, 2005, the attached document was handdelivered to: The Honorable Mary H. Murguia United States District Court for the District of Arizona Sandra Day O'Connor United States Courthouse 401 West Washington Street Phoenix, Arizona 85003

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GAONA LAW FIRM

s/David F. Gaona

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