Gary A. Dordick, State Bar No. 128008 …. Cal. 11-cv...1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gary A. Dordick, State Bar No. 128008 [email protected]

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Gary A. Dordick, State Bar No. [email protected] OFFICES OF GARY A. DORDICK509 South Beverly DriveBeverly Hills, California 90212-4514Tel: (310) 551-0949 • Fax: (310) 551-1644

Cara L. Eisenberg, State Bar No. [email protected] EISENBERG LAW FIRM509 South Beverly DriveBeverly Hills, California 90212Tel: (310) 201-0211 • Fax: (310) 551-1644

Attorneys for Plaintiff Carol Champommier, individually and as a Successor-in-Interest to Zachary Champommier, deceased

John Burton, State Bar No. 86029 [email protected] LAW OFFICES OF JOHN BURTON4 East Holly Street, Suite 201Pasadena, California 91103Tel: (626) 449-8300 • Fax: (626) 449-4417

Attorneys for Plaintiff Eric Avery Feldman, individually and as a Successor-in-Interest to Zachary Champommier, deceased

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CAROL CHAMPOMMIER and ERICAVERY FELDMAN, individually and as Successors-in-Interest to ZacharyChampommier, deceased,

Plaintiffs,

v.

UNITED STATES OF AMERICA,

Defendant.

Case No. CV11-10538 MWF (PJWx)

PLAINTIFFS’ JOINT POST-TRIALBRIEF

Trial: March 26- April 2, 2013

Case 2:11-cv-10538-MWF-PJW Document 112 Filed 05/01/13 Page 1 of 26 Page ID #:2324

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TABLE OF CONTENTS

Contents Page

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. The Applicable Legal Standard: the FTCA Incorporates State Law for Liability of Police Officers, Which In Turn Incorporates the Fourth-Amendment Standard For Excessive-Force Claims, Although Not the Qualified-Immunity Defense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

III. The Preponderance of Direct and Circumstantial Evidence Proves Plaintiffs’Version of the Shooting, Which Defendant Does Not Dispute Makes Out aFourth-Amendment Violation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A. There is No Dispute That It Would Have Been Unreasonable for Special Agent LoPresti To Have Fired If Zac Was Stopping or DrivingSlowly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

B. Key Witnesses Corroborate Plaintiffs’ Version of the Shooting . . . . . . . . 5

C. The Circumstantial Evidence Corroborates Plaintiffs’ Version of the Shooting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

IV. Applying the Factors of Graham v. Connor to Defendant’s Version of theEvents, the Shooting of Zachary Champommier Violated theFourth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

1. There were no severe crime or other circumstances to justify deadly force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

2. There was no threat to anyone which would justify deadly force . . . . . . 15

3. Zac was not resisting arrest or attempting to flee . . . . . . . . . . . . . . . . . 17

4. Time and changing circumstances show the shooting was unjustified . . 17

5. The type of force and alternatives to deadly force . . . . . . . . . . . . . . . . . 19

7. Other factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

IV. Assessing Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

V. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22


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TABLE OF AUTHORITIES

Cases Page(s)

Avina v. United States, 681 F.3d 1127 (9th Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Curley v. Klem, 298 F.3d 271 (3d Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Deorle v. Rutherford, 272 F.3d 1272 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Edson v. City of Anaheim, 63 Cal. App. 4th 1269 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Graham v. Connor, 490 U.S. 386 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,4,5,11,12,15

Grudt v. City of Los Angeles, 2 Cal.3d 575 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Harris v. Roderick, 126 F.3d 1189 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Hopkins v. Andaya, 958 F.2d 881 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Indian Towing Co. v. United States, 350 U.S. 61 (1955) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Jensen v. City of Oxnard, 145 F.3d 1078 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Levin v. United States, 133 S. Ct. 1224 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,3

Martarano v. United States, 231 F. Supp. 805 (D. Nev. 1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Millbrook v. United States, 133 S. Ct. 1441, 2013 U.S. LEXIS 2543 (Mar. 27, 2013) . . . . . . . . . . . . . . . . . 3

Munoz v. City of Union City, 120 Cal. App. 4th 1077 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Munoz v. Olin, 24 Cal.3d 629 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Ogborn v. City of Lancaster, 101 Cal. App. 4th 448 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Price v. Kramer, 200 F.3d 1237 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14


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Table of Authorities (Continued)

Cases Page(s)

Richards v. United States, 369 U. S. 1 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Rufo v. Simpson, 86 Cal. App. 4th 573 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Salgado v. County of Los Angeles,19 Cal. 4th 629 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Tekle v. United States, 511 F.3d 839 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Tennessee v. Garner, 471 U.S. 1 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,11

Torres v. City of Madera, 648 F.3d 1119 (9th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

United States v. Cortez, 449 U.S. 411 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Olson, 546 U.S. 43 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Other Authorities

U.S. Const. Amend IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,2,3,4,5,11,12,14,16,19

28 U.S.C. §1346 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

28 U.S.C. § 2402 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

28 U.S.C. § 2680 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Cal. Civ. Proc. Code § 377.60 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

CACI Instruction No. 1300 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

CACI Instruction No. 1305 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

CACI Instruction No. 2-3921 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20,21

Ninth Circuit Model Civil Jury Instruction No. 9.22 (Rev. Dec. 2007) . . . . . . . . . . . . 12

Lewinski, Ph.D., William J., Dysterheft, Jennifer L., Seefeldt, Dawn A., Pettitt, Ph.D. Robert W., The Influence of Officer Positioning on MovementDuring a Threatening Traffic Stop Scenario, Law Enforcement Executive Forum, Vol. 13 (April 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10


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I. Introduction

Plaintiffs Carol Champommier and Eric “Rick” Feldman contend that the

preponderance evidence demonstrates the liability of Defendant United States for the

June 24, 2010 fatal shooting of Plaintiff’s college-bound, 18-year-old son, Zachary “Zac”

Champommier, by Drug Enforcement Administration (DEA) Special Agent Peter

“Taylor” LoPresti, regardless of how the Court, as the trier-of-fact, ultimately resolves

factual disputes which emerged regarding the shooting during trial. Accordingly, each

should be compensated for the loss of love, society and companionship of their son.

Much of the evidence is uncontroverted. Shortly after 9:00 p.m., members of a

DEA task force, dressed in ordinary clothes and driving ordinary cars, gathered in a busy

parking lot after executing a search warrant. Coincidentally, Zac drove to the same

parking lot in his mother’s white Toyota subcompact to meet a new friend, Douglas

“Ryan” Oeters. Task force members accosted Oeters after he walked by their cars looking

for Zac. They grabbed him and forced forced him up against a chain-link fence.

Plaintiffs contend that Zac braked suddenly to avoid hitting Deputy Mark

Brewster, a late arrival who got out of his truck and walked towards the other agents,

while pointing his pistol at Oeters. Aware of the Toyota at the last moment, Deputy

Brewster used his hand to “vault” onto the hood “momentarily,” avoiding the brunt of

any impact. He slid across the wheel well and landed on his feet. As the car lugged

forward – Zac apparently struggled with the manual transmission – Special Agent

LoPresti fired through the driver’s side window mortally wounding Zac, who then

reflexively hit the accelerator and sped off, swerving to his right – east – while more

rounds were fired, until crashing into a parked car, where he bled to death.

Defendant has never disputed that under such facts the shooting should be

deemed a violation of the Fourth Amendment. Indeed, its police practices expert

conceded that point. Instead, Defendant proffers another scenario, contending Zac

accelerated before hitting Deputy Brewster at 10 miles per hour or more, and sped off,

with Deputy Brewster on the hood, and Special Agent LoPresti firing to save his life.


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28 1Deputized local officers act for the United States for FTCA purposes. Martarano v.United States, 231 F. Supp. 805, 807-08 (D. Nev. 1964).

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Because the distance between the impact with Deputy Brewster and Special Agent

LoPresti’s first shot was less than 15 feet, if the Toyota was actually going ten miles an

hour or faster the time between those two events had to be a second or less. (10 miles per

hour is 14.67 feet per second.) At best that moment was time only for Special Agent

LoPresti to react to the collision by drawing and firing his handgun. (Plaintiffs contend

one second was not time even for that, the car had to be going much slower.) In any

event, Special Agent LoPresti did not assess whether Zac was going to stop or even

whether shooting Zac – with agents and civilians in the background – would increase or

decrease the risk of death or great bodily injury to others. Thus, even under Defendant’s

view of the evidence, the applicable excessive-force principles compel the conclusion that

the shooting violated the Fourth Amendment.

Accordingly, Plaintiffs contend that they have met their burden of proof to show

by a preponderance of the evidence that the shooting of their son violated the applicable

California tort law. They urge that the Court find in their favor and award wrongful-

death damages to each in the appropriate sums for the tragic loss of their exemplary son.

II. The Applicable Legal Standard: the FTCA Incorporates State Law for Liability of

Police Officers, Which In Turn Incorporates the Fourth-Amendment Standard

For Excessive-Force Claims, Although Not the Qualified-Immunity Defense.

Plaintiffs seek wrongful death damages for battery and negligence pursuant to the

Federal Tort Claims Act (FTCA), which “was designed primarily to remove the sovereign

immunity of the United States from suits in tort.” Richards v. United States, 369 U. S. 1,

6 (1962). The FTCA vests district courts with “exclusive jurisdiction over claims against

the United States for ‘injury or loss of property, or personal injury or death caused by the

negligent or wrongful act or omission’ of federal employees acting within the scope of

their employment.” Levin v. United States, 133 S. Ct. 1224, 1228 (2013) (quoting 28

U.S.C. §1346(b)(1)). FTCA claims are tried to the district court. 28 U.S.C. § 2402.1


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2The FTCA’s incorporation of state law applicable to “a private person under likecircumstances” has caused uncertainty when the federal actor engages in a governmentfunction such as law enforcement. The Supreme Court construes the FTCA strictly,“interpret[ing] these words to mean what they say, namely, that the United States waivessovereign immunity ‘under circumstances’ where local law would make a ‘private person’liable in tort.” United States v. Olson, 546 U.S. 43, 44 (2005) (emphasis added by theCourt) (citing Indian Towing Co. v. United States, 350 U.S. 61, 64 (1955) (FTCA requiresthe district court “to look to the state-law liability of private entities, not to that of publicentities when assessing the Government’s liability . . . in the performance of activitieswhich private persons do not perform”).

(continued...)

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“Substantively, the FTCA makes the United States liable ‘to the same extent as a

private individual under like circumstances,’ under the law of the place where the tort

occurred.” Levin, 133 S. Ct. at 1228 (quoting 28 U.S.C. § 2674). Although the FTCA

generally exempts intentional torts, including battery, there is a “law enforcement

proviso” that “extends the waiver of sovereign immunity to claims for . . . intentional

torts, including . . . battery, that are based on the acts or omissions of ‘investigative or

law enforcement officers.’” Millbrook v. United States, 133 S. Ct. 1441, 2013 U.S.

LEXIS 2543, *5 (Mar. 27, 2013) (citing 28 U.S.C. § 2680(h)).

California law provides that on-duty law enforcement officers and their agencies

can be liable for battery and negligence arising out of alleged wrongful shootings. Munoz

v. Olin, 24 Cal.3d 629, 634 (1979) (citing Grudt v. City of Los Angeles, 2 Cal.3d 575,

587 (1970)). Wrongful shootings, like all “[c]laims that police officers used excessive

force in the course of an arrest, investigatory stop or other ‘seizure’ of a free citizen are

analyzed under the reasonableness standard of the Fourth Amendment.” Munoz v. City

of Union City, 120 Cal. App. 4th 1077, 1102 (2004) (citing Graham v. Connor, 490

U.S. 386, 396 (1989)). Thus, to establish liability of an officer, in addition to the

elements of a prima-facie battery or negligence the plaintiff must prove by a

preponderance that the force was unreasonable. Edson v. City of Anaheim, 63 Cal. App.

4th 1269, 1272-73 (1998); compare CACI Instruction No. 1300 with CACI Instruction

No. 1305. Other than the allocation of the burden of proof, California battery and

negligence law is the same for law enforcement officers and private persons.2


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2(...continued)In Tekle v. United States, 511 F.3d 839, 857 (9th Cir. 2007), a Ninth Circuit panel

did not produce a majority opinion on whether “the unique obligations of law enforcementofficials” affect the state law applicable to FTCA claims against federal agents. Id. at 857(Fisher, J., concurring). Last year, however, the Ninth Circuit applied the state law-enforcement rule to FTCA claims against DEA agents without discussing Olson or IndianTowing, holding that the plaintiffs had the burden to establish “that the conduct of peaceofficers acting in their official the officers used ‘unreasonable force.’” Avina v. UnitedStates, 681 F.3d 1127, 1131 (9th Cir. 2012). Avina seems inconsistent with the SupremeCourt’s strict construction of “private persons.” Regardless, Plaintiffs cannot imagine thatthe allocation of the burden of proof on justification could affect the outcome here, as bothsides proffered considerable evidence on whether the shooting was justified, and, Plaintiffsargue, under neither side’s evidence can Special Agent LoPresti be determined to haveacted reasonably when shooting Zac because of a trivial parking-lot accident.

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Thus, in excessive-force cases the FTCA incorporates California tort law, which in

turn incorporates the Fourth-Amendment standard. California law is clear, however, that

police-officer defendants are not entitled to the § 1983 affirmative defense of qualified

immunity. Ogborn v. City of Lancaster, 101 Cal. App. 4th 448, 460 (2002) (Perluss, J.)

(“The doctrine of qualified governmental immunity is a federal doctrine that does not

extend to state tort claims against government employees.”). Accordingly, the shooter’s

conduct must be measured under the Constitution itself, rather than by whatever are

determined to be “clearly established contours of the constitutional right.

Here, Plaintiff’s rely both on the general Graham excessive-force standards and the

famous, more specific rule stated by Tennessee v. Garner, 471 U.S. 1 (1985), which

limits lethal force to circumstances “where the officer has probable cause to believe that

the suspect poses a threat of serious physical harm, either to the officer or to others,” and

can be used “only, where feasible, some warning has been given.” Id. at 11-12.

In other words, law enforcement officers “may not shoot to kill unless, at a

minimum, the suspect presents an immediate threat to the officer or others, or is fleeing

and his escape will result in a serious threat of injury to persons.” Harris v. Roderick, 126

F.3d 1189, 1201 (9th Cir. 1997).

Under neither Plaintiffs’ nor Defendant’s version of this tragic death can the

exacting constitutional standard for the government’s deliberate taking of a human life

be met. Accordingly, FTCA liability should be determined in Plaintiffs’ favor.


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283For the convenience of all, the parties consolidated the reporters’ transcripts into a

single volume, numbering the pages 1 through 1439. All citations to the record, unlessotherwise indicated, are to this combined, consecutively paginated reporters’ transcript.

-5-

III. The Preponderance of Direct and Circumstantial Evidence Proves Plaintiffs’

Version of the Shooting, Which Defendant Does Not Dispute Makes Out a

Fourth-Amendment Violation.

A. There is No Dispute That It Would Have Been Unreasonable for Special

Agent LoPresti To Have Fired If Zac Was Stopping or Driving Slowly.

Plaintiffs contend that Zac slammed on the brakes to avoid hitting Deputy

Brewster, and as he was stopped, or perhaps “lugging” forward while struggling with the

manual transmission, Special Agent LoPresti shot and killed him. Defendant’s expert,

Ron McCarthy, conceded that under those circumstances the shooting would have been

unreasonable. (1201:13-1202:20)3 Plaintiffs do not expect Defendant to argue to the

contrary in its post-trial brief or at closing argument. Accordingly, if the Court

determines these to be the facts, Plaintiffs should prevail.

As explained in the next two subsections, the preponderance of the evidence, both

direct and circumstantial, demonstrates Plaintiffs’ version of the shooting to be more

likely true than not true. Following this analysis of the evidence, in Section IV Plaintiffs

explain that even were Defendant’s version of events true – that Zac accelerated

throughout his collision with Deputy Brewster at ten miles per hour – the shooting

nevertheless would violate the Graham v. Connor Fourth-Amendment standard for

excessive force, and they still should prevail.

B. Key Witnesses Corroborate Plaintiffs’ Version of the Shooting.

By far, the weight of the testimony, including that by certain DEA agents,

supports Plaintiffs’ version of the shooting.

Deputy Brewster testified he heard a “screech” and saw a “flash of light” just before he

came in contact with the Toyota. (548:17-19; 550:3-10; 589:8-12). Plaintiffs played the

following video excerpt where Deputy Brewster’s explained at his deposition how he had

adequate time to react by putting his hand out and “vaulting” onto the hood. (550-551)


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-6-

Q Tell me then where the vehicle struck your body, when it first came

into contact with you?

A All I can tell you is, I believe I got my left hand down on the hood

and my legs off the ground. It hit my left thigh.

And other than that, I rolled up on the hood. And the window

stopped me from going further.

Q So did you straight arm the hood? Like you were trying to stop the car?

A I think what it was, was I was trying to vault, so I could get my legs

out of the way . . . .

. . . .

Q So trying to vault – meaning, put your arm down and kind of hop up?

A Get myself up, out of the way, so I didn’t get my legs broken.

(Brewster Depo. 160:11-161:2)

Plaintiffs’ accident reconstruction expert, Jon Landerville, explained the

significance of Deputy Brewster’s testimony for determining speed of Zac’s car:

I mean, just look at the timing. Let’s say, for example, it takes you a half a

second to jump straight – to jump up. . . . So if it takes a half a second and

the car is at five miles an hour, it moves three and a half feet. It’s already

underneath you before you come down.

It’s just – you have to look at the real world and the physics and the

timing of things and that if it’s something in motion and accelerating,

there’s just not enough time for these things to happen.

Q. So if there’s any acceleration beyond four or five miles per hour,

Agent Brewster’s legs get hit?

A. I would agree, but it has to be four or five decelerating such that it’s

pretty much stopping at a foot or less.

Q. For him to avoid being hit?

A. Correct.


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4As soon as Special Agent Caruth described Deputy Brewster as getting “on thehood,” Larry Berger, an attorney for the Federal Law Enforcement Officers’ Associationrepresenting her during the interview, suddenly interjected, “He didn’t jump on the hood,he was hit, right?” (1293:11-17)

-7-

172:7-24.

Deputy Brewster testified he was on the hood only “momentarily,” (542:6-8), but

he nevertheless “saw the driver appeared to be in a panic. He was trying – he was doing

something with the gear shift lever,” as if he was “trying to get the vehicle into gear.”

(548:4-16) According to Deputy Brewster, “the next thing I know, I’m off the car on,

my feet facing the car as it’s going away.” (542:16-543:3) Significantly, Deputy

Brewster, who arguably had the most information with which to gauge the Toyota’s

speed, declined to do so. (538:11-12)

Other agents corroborate Deputy Brewster and support Plaintiffs’ version of the

shooting. Special Agent Jennifer Caruth, who perhaps had the best view of the entire

incident, said during her post-shooting interview: “I saw Mark [Brewster] get onto the

hood.” (1293:3-9; Ex. 10, batestamped: 569)4 She then added that after the impact the

Toyota was lurching slowly forward, like a manual transmission left in the wrong gear,

and Deputy Brewster got off the hood before the car “started moving again.”

(1281:3-16; 1292: 18-24; 1293:3-9; Ex. 10) Deputy Alfonso Serrano, Jr., watch the

Toyota drive north toward the group, but was not concerned that it presented a threat

before it came in contact with Deputy Brewster. (1264:14-1265:11) Afterwards, the

Toyota was “jerking,” “like, stopping and going.” (1272:20-1273:10)

Finally, Oeters testified through deposition that the car appeared to stop to avoid

hitting a man running across the car’s path. “Right as the accident occurred, he totally

stopped his car.” (Oeters’ Depo. 56:10-17; 60:9-61:13).

The foregoing testimony is strongly corroborated by the circumstantial evidence

discussed in the next section, and together they support a finding in favor of Plaintiffs.


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5Mr. Leggett testified that he in part relied on the facts that Special Agent Caruth“observed the Toyota appearing to accelerate prior to impacting [Deputy] Brewster” andSpecial Agent LoPresti thinking “the vehicle was going to stop, but then acceleratedtoward [Deputy] Brewster.” (1376:1-1377:1) Neither of these two witnesses, nor anyoneelse for that matter, claims to have seen Zac accelerate before the contact with DeputyBrewster. See, e.g.,1287:6-8 (question to Special Agent Caruth: “You never saw thatToyota until that split second that it hit Agent Brewster, correct?” Answer: “Yes.”)

-8-

C. The Circumstantial Evidence Corroborates Plaintiffs’ Version of the

Shooting.

The circumstantial evidence strongly supports Plaintiffs’ version of the key events

and discredits Defendant’s. Presented primarily through Plaintiff’s accident

reconstruction expert, Mr. Landerville, the circumstantial evidence includes tire marks,

the Toyota’s undamaged left front, Deputy Brewster’s medical records and lack of injury,

the pattern of glass dispersion in the parking lot, and the dependent variables of speed,

distance and reaction time linking the impact with Deputy Brewster and the first shot.

First, Mr. Landerville demonstrated that tire skid marks located directly south of

the point of impact with Deputy Brewster were caused by sudden braking, and explained

the screech heard by Deputy Brewster right before he vaulted onto the hood.

(189:18-192:9) Defendant’s reconstruction expert, Timothy Leggett, conceded that Zac

was slowing down before the impact, and that the Toyota was traveling only about six-

and-a-half miles per hour – in first gear. (Ex. 6.2; 1381:15-1382:4).

The difference between the two opinions is that Mr. Landerville concluded that the

Toyota stopped abruptly, as evidenced by the sudden, dark brake marks at evidence

placards “E” and “F,” at the point of contact with Deputy Brewster. (174:24-175:7;

175:13-17;178:20-179:14; Ex. 103-4850) Acceleration marks, such as those which were

made when Zac pressed the accelerator after being shot, start dark, and then fade to

light. (174:1-21; 184:3-8) Mr. Leggett testified that the marks before the Brewster

impact point did not show braking, although he conceded the premises of Mr.

Landerville’s reasoning: that tire mark which terminate suddenly can be caused by

braking, which results in skidding and then stopping. (1393:3-6)5


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Mr. Landerville testified that there was no dent or scratch on the front, driver’s

side bumper or hood corresponding to where Deputy Brewster claims he was hit. “[I]f

there’s contact, it has to be so minor that it actually – it didn’t leave any evidence.”

(195:9-196: 25; 222:6-16) Indeed, there were no prints found by the Crime Lab, or other

physical evidence that Deputy Brewster even made “contact” with the hood. On this

evidence alone, Mr. Landerville concluded that the car had to be barely moving when

Deputy Brewster jumped up and over the hood, sliding on to his feet. (169:9-171:18)

Mr. Landerville explained that the lack of physical injury to Deputy Brewster also

demonstrated that Zac’s car was stopped or barely moving, illustrating his testimony

with a memorable graphic showing the dynamics of a pedestrian-versus-car collision

where, as here, the knees are level to the bumper. The result is inevitably a significant

knee injury, and likely an injury to the head as well. (169:9-172:24)

Were the Toyota moving more than a couple of miles per hour, Mr. Landerville

explained, there would have to be corresponding injuries. (220:4-222:16) Deputy

Brewster testified, howewver, he had no such injury outside of a “slight numbness” that

he “wouldn’t call [an] injury, just telling me that that’s where the car hit me.” (552:2-9)

There was never any bruising. (556:16-24) Deputy Brewster was released from the

emergency room after “[e]verything came out normal.” (555:4-18; 556:5-17)

There is more compelling circumstantial evidence which demonstrates that the car

was stopped or barely moving when the first shot was fired. Mr. Landerville described his

glass dispersion tests, and showed a video using Zac’s car and manufacturer replacement

driver’s-side windows. The test demonstrated that the glass scatter pattern found at the

scene was left by a car that was either stationary or traveling less than five miles an hour.

Although the dispersed glass appeared more dense in the scene photos than the testing

because more glass exploded from the window due to the high velocity bullet versus the

hammer used in the test, (184:22-185:17), the majority of the glass during the five-

miles-per-hour glass dispersion test matched the outer limits of glass dispersion in the

scene photos. (207:23-208:15)


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6The Court will recall that while on the stand, Dr. Lewinski did not rely on his ownpublished data, opining instead that Special Agent LoPresti’s draw might have been lessthan one second due to practice. (890:1-13) While Special Agent LoPresti’s marksmanship(ability to hit targets) was discussed at trial, there was no indication that it was any betterthan an “average” officer. Moreover, Special Agent LoPresti never testified that hepracticed drawing speed, or was any faster at this skill than an “average” officer. Dr.Lewinski did not test Special Agent LoPresti’s drawing speed. (900:11-901:2)

As an aside, the article “in publication” to which Dr. Lewinski referred several timesduring his testimony apparently is now in print. William J. Lewinski, Ph.D., Jennifer L.Dysterheft, Dawn A. Seefeldt, Robert W. Pettitt, Ph.D., The Influence of OfficerPositioning on Movement During a Threatening Traffic Stop Scenario, Law EnforcementExecutive Forum, Vol. 13(1) at 98 (April 2013). Contrary to Dr. Lewinski’s testimony,901:3-7, the article does not contain data on the holster Special Agent LoPresti wore.

(continued...)

-10-

Plaintiff’s ballistics expert Ron Scott corroborated Mr. Landerville’s conclusion that

the car had to be traveling at less than five miles per hour during the impact with Deputy

Brewster and the first shot by assigning fixed values for distance traveled and minimum

reaction time to calculate the speed. Mr. Scott assumed Special Agent LoPresti’s estimate

of 8 to 10 feet – plus four from the front of the Toyota to the driver’s window – and a

reaction time of two to three seconds – a minimum – for Special Agent LoPresti to switch

his focus from Oeters to the impact with Brewster, figure out a response, draw, aim and

fire. (477:18-24) At ten miles per hour, the car would have been fifteen to thirty feet

passed the glass spatter, where the first shot occurred. To match the distance traveled,

the Toyota had to be “barely moving,” (482:19-483:9), certainly less than five miles per

hour. (483:25-484:10) (Again, 10 miles per hour is 14.67 feet per second.)

At the core of Mr. Scott’s estimate of reaction time are the published data from

three laboratory studies that on average it takes a primed police officer, responding to a

simple stimulus, about one-and-a-half seconds to draw and fire. (472:7-475:20) Defense

expert William Lewinski, Ph.D., who conducted one of those studies, agreed that for

Special Agent LoPresti to go through the process of observing Deputy Brewster on the

hood, pivot into firing position, consider whether the impact was deliberate or an

accident, then assess whether lethal force would protect Deputy Brewster’s life, would

take “two to three seconds or more” just to “process that information.” (834:19-836:1)6


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6(...continued)Moreover, in response to a question from the Court, Dr. Lewinski claimed to have

data that an officer can perceive a threat, draw and fire within .67 of a second, and latertestified that the data would appear in this article. To the contrary, the article reports thatwhen testing how quickly officers respond to the sudden and unexpected appearance of alethal threat during a simulated traffic stop, the average time from first stimulus todrawing and firing ranged from two to two-and-a-half seconds, right on target with thevalues Mr. Scott used here, and three to four times the magnitude of those suggested attrial by Dr. Lewinski. There is no minimum time of less than one-third the averagereported.

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When considering here whether the totality of the evidence establishes that

Plaintiffs’ version of the shooting is more likely true than not true, this circumstantial

evidence takes on considerable importance. In another alleged wrongful shooting case,

Hopkins v. Andaya, 958 F.2d 881 (9th Cir. 1992), the Ninth Circuit, after discussing

how emergency room records “undermined [the shooter’s] story in numerous ways,”

reversed summary judgment.

[C]ircumstantial evidence can speak clearly and often unequivocally;

properly construed, it is as objective and reliable as any other evidence. As a

great trial lawyer once said, “We better know there is a fire whence we see

much smoke rising than we could know it by one or two witnesses swearing

to it. The witnesses may commit perjury, but the smoke cannot.” Abraham

Lincoln, Unsent Letter to J.R. Underwood and Henry Grider, October 26,

1864, reprinted in The Quotable Lawyer 323 (1986) (Schrager and Frost

eds.).

Id. at 888.


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IV. Applying the Factors of Graham v. Connor to Defendant’s Version of the Events,

the Shooting of Zachary Champommier Violated the Fourth Amendment.

Subsequent to Tennessee v. Garner, which addresses the specific Fourth-

Amendment contours governing lethal force, the Supreme Court set forth the more

general constitutional standards for all Fourth-Amendment excessive-force claims.

“Determining whether the force used to effect a particular seizure is reasonable

under the Fourth Amendment requires a careful balancing of the nature and quality of

the intrusion on the individual’s Fourth Amendment interests against the countervailing

governmental interests at stake.” Graham v. Connor, 490 U.S. at 396 (internal

quotations omitted). “[C]areful attention” must be given “to the facts and circumstances

of each particular case, including the severity of the crime at issue, whether the suspect

poses an immediate threat to the safety of the officers or others, and whether he is

actively resisting arrest or attempting to evade arrest by flight.” Id.

The four factors listed in Graham are not exhaustive. “Because the test of

reasonableness under the Fourth Amendment is not capable of precise definition or

mechanical application, the reasonableness of a seizure must instead be assessed by

carefully considering the objective facts and circumstances that confronted the arresting

officers. In some cases, for example, the availability of alternative methods of capturing or

subduing a suspect may be a factor to consider.” Smith v. City of Hemet, 394 F.3d 689,

701 (9th Cir. 2005) (internal quotes omitted) (en banc).

The Ninth Circuit codified the Graham standard, as expanded by City of Hemet

in Model Civil Jury Instruction No. 9.22 (Rev. Dec. 2007). That instruction, if modified

to fit the circumstances of this case, would read as follows:

In general, a seizure of a person is unreasonable under the Fourth

Amendment if a police officer uses excessive force in defending himself or

others. Thus, in order to prove an unreasonable seizure in this case, the

plaintiffs must prove by a preponderance of the evidence that Special Agent

LoPresti used excessive force when he shot and killed Zachary Champommer.


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Under the Fourth Amendment, a police officer may only use such

force as is “objectively reasonable” under all of the circumstances. In other

words, you must judge the reasonableness of a particular use of force from

the perspective of a reasonable officer on the scene and not with the 20/20

vision of hindsight.

In determining whether Special Agent LoPresti used excessive force

in this case, consider all of the circumstances known to Special Agent

LoPresti on the scene, including:

1. The severity of the crime or other circumstances to which

Special Agent LoPresti was responding;

2. Whether Zachary Champommier posed an immediate threat

to the safety of Special Agent LoPresti or to others;

3. Whether Zachary Champommier was actively resisting arrest

or attempting to evade arrest by flight;

4. The amount of time and any changing circumstances during

which Special Agent LoPresti had to determine the type and amount of

force that appeared to be necessary;

5. The type and amount of force used;

6. The availability of alternative methods; and

7. Other factors relative to the case.

Plaintiffs now address each factor in light of Defendant’s version of the shooting.

1. There was no crime, much less a severe one, involved.

When gathering in the parking lot, the DEA task force agents were dressed in

ordinary clothes and drove plain cars; no one could recognize them as law enforcement.

(83:23-84:5; 85:21-24; 91:1-5) The circumstances were so low key that Sgt. Joseph

Chavez did not even check to make sure his car was locked before walking away, even

though the SUV contained money, drugs, firearms and ammunition in plain view.

(91:12-92:24)


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As Oeters walked among the agents in the parking lot, he never reached into a car,

(93:24-25), although Sgt. Chavez claims he looked into two of them before walking away.

(94:11-95:3) As Oeters was walking south, parallel to the west fence and away from the

task force members and their cars (95:15-17), Sgt. Chavez ordered him to stop (100:13-

17), even though Oeters committed no crime. (96:3-5) Oeters asked Sgt. Chavez, “What

do you want?” and told him, “I’m not doing anything wrong.” (100:2-10) Sgt. Chavez

grabbed Oeters’ arm and pushed him face-first into the fence. (103:23-104:4; 185:2-5)

Sgt. Chavez testified he understood “consensual stops” and agreed that Oeters was

“free to walk away.” (95:4-96:16) Regardless of whether the agents timely identified

themselves as law enforcement, the Fourth Amendment gave Oeters the right to leave, as

Sgt. Chavez conceded he had “‘no particularized and objective basis for suspecting the

particular person stopped of criminal activity.’” Price v. Kramer, 200 F.3d 1237,

1247-48 (9th Cir. 2000) (quoting United States v. Cortez, 449 U.S. 411, 417 (1981)).

Indeed, the only arguably criminal activity taking place was Sgt. Chavez’ grabbing

Oeters’ arm and pushing him into the fence. To anyone watching, including Zac, the

gun-toting, violent men assaulting his new friend, might appear to be “bikers,” as one

civilian described them, or just plain thugs. (41:22-42:7; 322:14-18)

There was absolutely no crime or other legitimate circumstances to which Special

Agent LoPresti was responding prior to the impact between Zac’s car and Deputy

Brewster. There was little change following the impact. It was just an accident. When

interviewed a week after the shooting, with his attorney present, (372:9-23) Special

Agent LoPresti recounted not once, but twice, that his first reaction was that the driver

would stop, get out, and say, “‘I’m sorry, I’m sorry, I didn’t mean to do that. I lost

control of the car.’” (Ex. 7; 313:13-17, bate-stamp 469; 315:1-6, bate-stamped 471).

A reasonable officer, having seen a low-speed (even at 10 miles per hour) parking-

lot collision between a man in an aloha shirt and a subcompact Toyota driven by a

teenager, who was probably scared out of his wits by the undercover officers, would

evaluate the situation as not one calling for lethal force. As Lt. Roger Clark explained,


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Well, a reasonable officer would know. I’m not in uniform and this is not

purposeful. It’s an accident. Perhaps impaired driver, perhaps a stupid

driver, perhaps a lot of things, but the – the [situational] awareness would

assure the officer, LoPresti in this case, that the impact is not of such energy

that he would be critically injured.

. . . .

. . . . I haven’t seen anything that – what we call credible threat to

life occurring here that would justify lethal force. The key is the officer

that’s shooting would know this person doesn’t know who I am, that I am a

police officer, and certainly he does not know who he’s hit is a police officer,

if that’s what happened.

681:18-682-21.

2. There was no threat to anyone which would justify deadly force.

Special Agent LoPresti conceded that the Toyota was never a threat to him, so

self-defense is not in issue. (345:8-12) As for the defense of others, Special Agent LoPresti

testified that “the sole reason” he shot Zac was to keep him from speeding away with

Deputy Brewster “on the hood of the car,” and if “Deputy Brewster was not on the hood

of the car and was off safely,” he would not have fired. (346:7-21)

Because the “‘reasonableness’ inquiry in an excessive force case is an objective one: . . .

whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances

confronting them,” Graham, 490 U.S. at 397, “a simple statement by an officer that he fears

for his safety or the safety of others is not enough; there must be objective factors to justify

such a concern.” Deorle v. Rutherford, 272 F.3d 1272, 1281 (9th Cir. 2001).

The evidence is overwhelming that Deputy Brewster was not still squarely on the

hood when Special Agent LoPresti opened fire. Most significantly, the official DEA cable

reporting the incident, which was based on Special Agent Jonathan Pullen’s

contemporaneous record, states that both officers were out of harm’s way, standing side

by side, when they started to shoot. (706:17-707:10; 773:4-17; 775:13-14; Ex. 143)


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Special Agent Caruth testified that “by the time [Zac’s] vehicle was even with my

car [parked across from the shattered glass], Deputy Brewster was no longer on the

vehicle.” 1289:11-15. Special Agent Caruth also testified that Deputy Brewster landed

back on his feet to her southwest. 1299:7-25; 1301:6-19. Given the positions of her car

and the glass shatter, as well as her description of where she was standing, Special Agent

Caruth’s testimony means that Deputy Brewster had to be off the car when Special

Agent LoPresti opened fire. Indeed, Special Agent Caruth said that she heard the first

gunshot as Deputy Brewster got of the hood, leading her to believe that he had fired the

first shot. 1297:2-9. Sgt. Chavez watched the window shatter, and it appeared to him as

well that Deputy Brewster fired that first shot. 112:2-8.

Moreover, Special Agent LoPresti’s testimony is not reasonable. He testified that

he “perceived” Agent Brewster to be on the hood of the vehicle during all five shots.

(316:16-21; 385:16-20) his last 2 shots were into the rear of the car, with the bullets

traveling toward the front as the Toyota pulled away, putting Deputy Brewster, if he

were still on the hood – rather than standing in the parking lot next to Special Agent

LoPresti and also firing at the car – directly in the background of Special Agent LoPresti’s

gunshots. (323:17-23; 325:16-22; 326:2-15)

A shooting due to an unreasonable mistake of fact is not justified under the Fourth

Amendment. For example, in Torres v. City of Madera, 648 F.3d 1119, 1127 (9th Cir.

2011), the Ninth Circuit reversed summary judgment in favor of an officer who shot the

plaintiffs’ decedent by mistake because she drew her gun instead of a taser. Similarly, in

Jensen v. City of Oxnard, 145 F.3d 1078, 1081 (9th Cir. 1998), the Ninth Circuit

upheld a § 1983 excessive-force claim asserted against a SWAT officer who shot and

killed his fellow officer during the execution of a search warrant, having mistakenly

perceived him to be “a gun-wielding occupant of the premises.” Accord, e.g., Curley v.

Klem, 298 F.3d 271, 280 (3d Cir. 2002) (“pressure and intensity inherent in a police

officer’s hot pursuit of a suspect known to be armed and highly dangerous” did not

excuse mistaken shooting of fellow officer).


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3. Zac was not resisting arrest or attempting to flee.

This factor has no weight in favor of justifying the shooting for the simple reason

that there is no evidence Zac ever had any reason to believe the DEA agents were law

enforcement. He was never placed under arrest, and the apparent flight occurred after he

was mortally wounded by Special Agent LoPresti.

4. Time and changing circumstances show the shooting was unjustified

If one were to accept the Defendant’s version of the facts, there was no time for

Special Agent LoPresti to determine that Zac was assaulting Deputy Brewster with his

car, and that therefore Special Agent LoPresti could not have reasonably believed that

deadly force would protect Deputy Brewster from death or great bodily injury.

As Defendant’s police expert, Mr. McCarthy, acknowledged, Special Agent

LoPresti “needed to give Zac at least a moment to stop” to see whether the impact was

an accident. (1202:14-20) According to Special Agent LoPresti’s estimate of his distance

from Deputy Brewster at impact to be 8 to 10 feet, and the speed of the Toyota to be at

least 10 miles per hour and increasing (354:14-355:5), he would have had to draw and

shoot Zac in less than a second following the impact. Even using Special Agent LoPresti’s

more generous estimate of that time interval – one to two seconds (355:20-25) – there

was too little time for him to determine whether Zac was going to stop or to drive away,

with Deputy Brewster on his hood, and therefore to determine, under his version of facts,

whether deadly force was appropriate to protect Deputy Brewster.

Special Agent LoPresti, in fact, testified that he did not consider whether the

Toyota’s impact with Deputy Brewster might have been an accident. He drew and fired

at Zac in response to the collision itself, without taking time to think about whether

deadly force was appropriate.

Q. Even when you said that you thought that he would get out and stop

and say, “I’m sorry. I’m sorry.” You didn’t think at that point in time that

perhaps it was an accident?


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A. That never happened, and I didn’t even have time to think about

that when Mark [Brewster] got hit [by the Toyota].

314:8-126 (emphasis added).

Q. So again some moments after your last statement in your audio tape,

you tell the investigating officers there again that “I’m expecting the car to

stop, the guy to say I’m sorry. I’m sorry.” And once again, Agent LoPresti,

despite saying those words twice in your statement, it’s your testimony that

you never thought at any time then or now that it was an accidental

impact?

A. That's correct. It was a stream of consciousness. I – I was talking and

things were coming out that – that I thought after. And not at that time. I

had no time to think. I had only time to react.

315:8-18 (emphasis added).

Defense expert Lewinski, who claims to have studied police reaction time for

almost 40 years, 816:15-817:11, testified that Special Agent LoPresti did not first

determine whether the collision was an accident, he just drew and fired.

Q. And in your calculation of time, did you add any time for the process

of determining whether the impact with Deputy Brewster and the vehicle

was accidental or intentional?

A. No. My understanding is that that wasn’t really processed

immediately at the time. Although he did say he reflected upon that at

some point. So I wasn’t looking at that primarily the recognition of the

body on the hood. And then a desire to respond quickly.

Q. So the answer is no, you did not take into account any time for any

processing of information relative to whether it was accidental or

intentional impact?

A. That’s correct. That would involve conjugation, which as you said

would elongate the time.


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914:20-915:6. Dr. Lewinski conceded that his test data showed, even with simple

laboratory experiments involving slightly complex decision making, the officers who took

less time to decide whether to fire were the ones who made the most mistakes. 903:25-

905:12.

It is not that there was no time to think, Special Agent LoPresti testified he

deliberately did not take the time to think before shooting Zac. By his own testimony,

Special Agent LoPresti fired solely because he thought the Toyota collided with Deputy

Brewer. That act alone violates the Fourth Amendment.

5. The type of force and alternatives to deadly force

Special Agent LoPresti never identified himself as law enforcement to Zac, never

used any verbal command or warning, and did not consider any alternative to the

instantaneous use of deadly force. (318:23-319:6)

Not only were there alternatives to deadly force, shooting the driver of a vehicle

under these circumstances was not the appropriate response. As Lt. Clark explained,

officers are trained that shooting and wounding the driver of a moving car creates more

hazard than it prevents. (657:4-659:17) Officers are trained to use alternative methods

under all but the most extreme circumstances, (685:15-686:13), such as recording the

license plate and summoning police cars to respond when necessary. (681:12-682:1;

685:15-686:13)

The Los Angeles Sheriff’s Department has an explicit policy, Assaults by Moving

Vehicles (Ex. 296). It starts by emphasizing: “The use of firearms against moving motor

vehicles is inherently dangerous and almost always ineffective,” and “an assaultive motor

vehicle shall not presumptively justify a department member’s use of deadly force.”

(Emphasis added). Accordingly, to shoot, the deputy must have “an objectively

reasonable belief” that: (1) “The vehicle or suspect poses an immediate threat of death or

serious physical injury” and (2) “The Department member has no reasonable alternative

course of action to prevent the death or serious physical injury.”


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The policy of the Drug Enforcement Agency also prohibits use of deadly force

against a moving (or fleeing) vehicle when other alternative methods, such as verbal

commands to the driver, are feasible. (Ex. 58) The DEA policy is “similar” and “pretty

close to the Sheriff’s Department policy, as acknowledged by defense expert Ron

McCarthy. (1203:24-1204:14)

The person most interested in the safety of Deputy Brewster, the man himself,

understood well that shooting the driver while he was still on the Toyota’s hood was not

going to protect him. When asked why he did not shoot Zac while he was sliding across

the hood, Deputy Brewster responded:

A. I decided it was more prudent to get off the hood of the car while I

could.

Q. And when you say while you could, that was a reference to the vehicle

was moving slow enough where you could get off when you believed safely?

A. That was in reference to, if I shoot him and he jams on the gas and

the car is traveling at a high rate of speed, I might be in more serious

trouble than I am.

Q. And, of course, even if you shoot him off of the vehicle, you still

knew you would run a risk of the vehicle speeding out of control and

hitting somebody, if you shoot a driver of a motor vehicle; correct?

A. Absolutely.

563:1-14.

7. Other factors.

One other factor that perhaps should be considered is the continued shooting as

Zac’s car headed east, away from the agents. Mr. McCarthy conceded that those shots

were “unnecessary” and “unjustified.” 1203:15-1203:23. That the agents fired even after

their proffered reason for shooting no longer existed, shooting into a “background” which

included their own colleagues, as well as members of the public, means that their use of

lethal force increased, rather than decreased, the risk of death or great bodily injury.


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IV. Assessing Damages

Zachary’s parents, Carol Champommier and Eric Feldman are his heirs and

therefore are the persons entitled to recover damages for wrongful death. Cal. Civ. Proc.

Code § 377.60.

The total economic damages are $6,172.61 for burial expenses and related funeral

costs, which should be awarded to solely to Ms. Champommier. (Exhibits117-119)

Each Plaintiff should be awarded non-economic damages as compensation for the

loss of Zachary’s “ love, companionship, comfort, care, assistance, protection, affection,

society and moral support.” CACI Instruction No. 2-3921. Plaintiffs have already

suffered more than two years and ten months since Zachary’s death. They will continue

to suffer these losses for the rest of their lives.

Ms. Champommier is presently age 49. Her life expectancy is 33.7 years. Mr.

Feldman is presently age 45. His life expectancy is 33.5 years. (These numbers are from

the tables used by CACI, published by National Vital Statistics, Sept. 24, 2012). While

the award should take into account the rest of Plaintiffs’ lives, the noneconomic damages

should be determined “in the amount in current dollars paid at the time of judgment”

and “should not be further reduced to present cash value.” CACI No. 2-3921 (citing

Salgado v. County of Los Angeles, 19 Cal. 4th 629, 646-47 (1998).

Plaintiffs’ respective counsel will argue the facts supporting their own client’s

requests for damages and suggest amounts at oral argument. The appropriate amount is

that necessary to compensate them for an “intangible loss.” The fixing of wrongful death

damages “is a factual question and as such is a subject particularly within the province of

the trier of fact.” Rufo v. Simpson, 86 Cal. App. 4th 573, 616 (2001) (affirming

compensatory damages of $8.5 million to divorced parents of deceased adult).


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V. Conclusion

For the foregoing reasons, the Court should determine liability in favor of Plaintiffs

and award damages according to proof.

Respectfully submitted

Dated: May 1, 2013 LAW OFFICES OF GARY A. DORDICK

By: /s/ Gary A. Dordick Gary A. Dordick

THE EISENBERG LAW FIRM

By: /s/ Cara L. Eisenberg Cara L. Eisenberg

Attorneys for Carol Champommier

Dated: May 1, 2013 THE LAW OFFICES OF JOHN BURTON

By: /s/ John Burton John Burton

Attorneys for Eric A. Feldman


Gary A. Dordick, State Bar No. 128008 …. Cal. 11-cv...1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gary A. Dordick, State Bar No. 128008 [email protected]

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