throbber

`
`No. 17-67
`
`IN THE
`Supreme Court of the United States
`
`
`
`CITY OF FRESNO AND
`OFFICER GREG CATTON,
`
`
`
`
`Petitioners,
`
`v.
`
`CHRIS WILLIS AND MARY WILLIS,
`INDIVIDUALLY AND AS SUCCESSORS
`IN INTEREST TO STEPHEN WILLIS,
`
`
`Respondents.
`
`
`
`
`
`
`
`On Petition for a Writ of Certiorari to the
`United States Court of Appeals for the Ninth Circuit
`
`
`
`
`BRIEF IN OPPOSITION
`
`
`
`
`
`ELLEN LAKE, ESQ.
`Counsel of Record
`4230 Lakeshore Avenue
`Oakland, CA 94610
`(510)272-9393
`elake@earthlink.net
`
`
`WALTER H. WALKER, III,
`ESQ.
`WALKER, HAMILTON,
`KOENIG & BURBIDGE,
`LLP
`50 Francisco Street, Ste. 460
` San Francisco, CA 94133
`(415) 986-3339
`walter@whkb-law.com
`
`Attorneys for Respondents Chris Willis and Mary Willis,
`individually and as successors in interest to
`Stephen Willis
`
`

`

` i
`
`
`
`QUESTIONS PRESENTED
`
`1. Would a reasonable police officer have known it
`was a clearly established constitutional violation to
`use deadly force by shooting in the back a man who
`is lying motionless on the ground and not reaching
`for a gun and thus poses no immediate threat to the
`officer or others?
`
`2. Is the issue of attorneys’ fees ripe for review when
`the final amount of attorneys’ fees has not yet been
`determined because the Court of Appeals has
`remanded the case for further trial on additional
`damages to be awarded under 42 U.S.C. §1983?
`
`

`

`
`ii
`
`TABLE OF CONTENTS
`
`QUESTIONS PRESENTED ........................................ i
`
`TABLE OF AUTHORITIES ...................................... iii
`
`INTRODUCTION ....................................................... 1
`
`STATEMENT OF THE CASE .................................... 2
`
`REASONS FOR DENYING THE WRIT .................... 6
`
`I. PETITIONERS’ FIRST QUESTION,
`REGARDING QUALIFIED IMMUNI-
`TY, IS BASED ON AN ASSUMPTION
`ABOUT THE EXISTENCE OF
`FACTS THAT THE JURY REJECT-
`ED. ................................................................... 6
`
`II. PETITIONERS’ SECOND QUES-
`TION, REGARDING AN AWARD OF
`ATTORNEYS’ FEES UNDER SEC-
`TION 1983 WHERE THE JURY HAS
`AWARDED ONLY NOMINAL DAM-
`AGES, IS NOT RIPE FOR REVIEW.
`THE COURT OF APPEALS HAS RE-
`VERSED THE JUDGMENT, AFTER
`RULING THAT THE DISTRICT
`COURT SHOULD NOT HAVE RE-
`STRICTED THE JURY TO AWARD-
`ING ONLY NOMINAL DAMAGES,
`AND HAS REMANDED THE CASE
`FOR A NEW TRIAL ON DAMAGES,
`WHICH WILL AFFECT THE
`AMOUNT OF ATTORNEYS’ FEES
`AWARDED. ................................................... 10
`
`CONCLUSION .......................................................... 14
`
`
`
`

`

`
`iii
`
`TABLE OF AUTHORITIES
`
`Cases
`
`
`
`Pages
`
`Aubin v. Fudala, 782 F.2d 287 (1st Cir. 1986) ........ 13
`
`Bridges v. Eastman Kodak Co., 102. F.3d 56
`(2d Cir. 1996) ...................................................... 13
`
`Chaudhry v. City of Los Angeles, 751 F.3d
`1096 (9th Cir. 2014) ............................................. 11
`
`DTD Enters, Inc. v. Wells, 130 S. Ct. 7(2009) .......... 12
`
`Farrar v. Hobby, 56 U.S. 103 (1992) ........................ 14
`
`Hamilton-Brown Shoe Company v. Wolf
`Bros. & Co., 240 U.S. 251 (1916) ........................ 12
`
`Hawa Abdi Jama v. Esmor Corr. Servs., 577
`F.3d 169 (3d Cir. 2009) ....................................... 13
`
`Hensley v. Eckerhart, 461 U.S. 424 (1983) ............... 13
`
`NOW v. Operation Rescue, 37 F.3d 646 (D.C.
`Cir. 1994) ............................................................ 13
`
`Virginia Military Institute v. United States,
`508 U.S. 946 (1993) ............................................. 12
`
`
`
`
`
`Miscellaneous
`
`Robert L. Stern, et al., “Supreme Court Prac-
`tice” (9th ed. 2007) ............................................... 12
`
`
`
`
`
`
`
`

`

`
`
`INTRODUCTION
`
`Neither question raised by the petition is worthy
`of certiorari.
`
`The first question, relating to qualified immunity,
`is based on a factual account that is contradicted by
`the jury’s verdict. Petitioners frame the issue based
`on the assumption that Officer Catton is entitled to
`qualified immunity because he shot respondents’ de-
`cedent, Stephen Willis, while Willis was reaching for
`a gun that was “within inches” of his hand. (Pet. i.)
`Yet those were not the facts as determined by the ju-
`ry. As the District Court concluded—and the Court
`of Appeals agreed—“[t]he jury’s verdict does not
`permit a finding that Stephen Willis was reaching for
`his revolver. Indeed, the jury’s verdict necessarily
`means the jury did not believe Stephen Willis was
`reaching for his revolver when Officer Catton fired
`the final shot(s).” (Pet. App. 30, italics in original.)
`There is no reason to grant certiorari to decide a hy-
`pothetical legal issue that is not supported by the
`facts of the case.
`
`Petitioners next ask this Court to rule on a ques-
`tion of attorneys’ fees when the amount of attorneys’
`fees awarded to respondents has not yet been finally
`determined in the District Court, so the question is
`not ripe for review. The Ninth Circuit Court of Ap-
`peals remanded this case back to the District Court
`for a trial on additional damages for Stephen Willis’
`pre-death pain and suffering. Those additional dam-
`ages will affect the District Court’s determination on
`attorneys’ fees. The Ninth Circuit instructed the
`District Court to revisit the question of attorneys’
`fees after this new trial. There is no reason to grant
`
`

`

`
`
` 2
`
`certiorari to decide an issue that is not ripe for re-
`view.
`
`
`
`STATEMENT OF THE CASE
`
`Petitioners selectively recite the facts, relying al-
`most exclusively on the self-serving testimony of Pe-
`titioner Catton and ignoring the jury’s findings,
`which were based on the contrary testimony of his
`fellow officers.
`
`The record reflects that Officers Astacio and Cat-
`ton approached Stephen Willis while he was remov-
`ing a holstered pistol from the trunk of his car to
`bring into his apartment for the night; that Catton
`shined his flashlight on Willis’ back and that Willis
`turned toward the officers while holding the hol-
`stered pistol loosely in front of him. 2 RT 352-356.
`The butt of the pistol in the holster was plainly visi-
`ble to both officers. Willis’s hand was not on it. 2 RT
`355-356, 417-418; 4 RT 864-865. Nevertheless, the
`officers pulled their guns and began firing at him
`from a distance of 10 to 12 feet. 4 RT 865; 2 RT357.
`
`The officers, Catton in particular, claimed Willis
`fired multiple shots at them after they began firing
`at him. 3 RT 739-740, 4 RT 845-848. The evidence
`strongly suggests that Willis did not fire even a sin-
`gle shot. When Fresno police later opened his 6-shot
`revolver, they found five live rounds and the only
`spent cartridge was two slots over from where it
`would have been if he had just fired the gun. 3 RT
`637; 2 RT 475-476, 484. Numerous Fresno officers
`spent hours searching the area for any spent bullet
`fired from Willis’s .38 Smith & Wesson and could find
`none. 2 RT 512-514. It is undisputed, however, that
`
`

`

`
`
` 3
`
`Catton and Astacio fired 41 bullets at Willis, hitting
`him 13 times at close range. 2 RT 499.
`
`When either 39 or 40 of the 41 bullets had been
`fired and Willis was lying on the ground with multi-
`ple bullet wounds, Astacio stopped firing because, as
`he testified, “the immediate threat is not there” and
`moved away from his firing position. 2 RT 395, 425-
`426. Catton ran around from his firing position to
`get behind Willis and then shot him in the back. 4
`RT 851.
`
`Officer Cerda saw Willis lying on the ground both
`before and after Catton shot him in the back. 6 RT
`1527. Cerda saw that Willis was not moving before
`Catton shot him. 6 RT 1528. He saw Willis was not
`reaching. Id. He saw Catton shoot Willis twice. 6
`RT 1527, 1530.
`
`Officer Jacobo ran up in time to see Willis lying
`only five to ten feet away from Catton. Jacobo testi-
`fied that Catton was yelling in an excited voice that
`he had put a bullet hole in the man’s back. 2 RT 575.
`Jacobo also testified that it was only after shooting
`Willis in the back that Catton shouted, “I can see the
`gun. I can see the gun.” Id.
`
`After Catton shouted that, Jacobo looked and saw
`the gun “about two feet south and west of Stephen’s
`feet.” 2 RT 576.
`
`Catton, an inexperienced officer who admitted to
`pulling his gun approximately 50 times during his
`extended probation period with the Fresno Police
`Department (4 RT 818, 820-821) and another ten
`times in the two months he had been off probation (4
`RT 822), made various claims as to why he shot Wil-
`lis in the back while Willis was lying on the ground.
`
`

`

`
`
` 4
`
`But the jury’s verdict indicated that it rejected Cat-
`ton’s testimony, as discussed infra.
`
`On the eve of closing argument, petitioners sub-
`mitted several factual interrogatories for the jury to
`answer. 1 ER 64. The court rejected these interroga-
`tories as untimely and as vague, argumentative, and
`misstating the law. Id. The Ninth Circuit upheld
`the court’s ruling. (Pet. App. 4.)
`
`The jury returned a verdict finding that Catton
`had used excessive force in shooting Willis in the
`back. (Pet. App. 8-9.) Reviewing the evidence in rul-
`ing on post-trial motions, the trial court stated, “The
`jury’s verdict does not permit a finding that Stephen
`Willis was reaching for his revolver. Indeed, the ju-
`ry’s verdict necessarily means the jury did not believe
`Stephen Willis was reaching for his revolver when
`Officer Catton fired the final shot(s).” (Pet. App. 30,
`italics in original.) The court further noted that de-
`fendants’ attempted reliance on Catton’s trial testi-
`mony “ignore[d] significant testimonial evidence to
`the contrary.” (Pet. App. 27.)
`
`The City of Fresno and Officer Catton appealed to
`the Ninth Circuit. The Willises filed a cross-appeal,
`claiming, among other things, that they had been un-
`lawfully deprived of their right to pursue their son’s
`pre-death cause of action for pain and suffering un-
`der Section 1983, and that the trial court had abused
`its discretion in its award of attorneys’ fees, including
`by reducing counsels’ hourly rates and by imposing
`an across-the-board 35% reduction for partial lack of
`success. (Pet. App. 7.)
`
`In an unpublished memorandum decision, the
`Ninth Circuit (Judges Melloy (8th Cir., sitting by
`
`

`

`
`
` 5
`
`designation), Clifton, and Watford) ruled in pertinent
`part:
`
`
`
`1. . . . Given the evidence pre-
`sented at trial, a reasonable jury
`could conclude that Officer Catton
`used excessive force in firing the
`final shot or shots. . . . [I]t was for
`the jury to decide which version of
`events to believe. The jury could
`reasonably have concluded from
`the evidence that Willis was not
`reaching for his gun and that Of-
`ficer Catton’s use of force was
`therefore unreasonable.
`
`
`
`. . .
`
`5. The district court erred by
`precluding plaintiffs from seeking
`damages for Willis’ pre-death pain
`and suffering. . . . We must accord-
`ingly vacate the judgment on plain-
`tiffs’ 1983 claim and remand the
`case to the district court so that
`plaintiffs may present evidence in
`support of their claim for pre-death
`pain and suffering damages. . . .
`
`
`
`. . .
`
`8. . . . We decline to rule on
`plaintiffs’ contentions that the dis-
`trict court abused its discretion by
`reducing counsel’s hourly rates and
`by imposing an across-the-board
`35% reduction. The district court
`
`

`

`
`
` 6
`
`should revisit these issues follow-
`ing the limited re-trial on the issue
`of pre-death pain and suffering
`damages. The court predicated the
`35% reduction at least in part on
`the degree of success plaintiffs
`achieved in the litigation, which
`could change depending on the ex-
`tent to which plaintiffs recover
`damages for Willis’ pre-death pain
`and suffering.
`
`(Pet. App. 1-7.)
`
` Petitioners’ petitions for rehearing and rehearing
`en banc were unanimously denied. (Pet. App. 102.)
`
`
`
`REASONS FOR DENYING THE WRIT
`
`I. PETITIONERS’ FIRST QUESTION, REGARD-
`ING QUALIFIED IMMUNITY, IS BASED ON
`AN ASSUMPTION ABOUT THE EXISTENCE
`OF FACTS THAT THE JURY REJECTED.
`
`Petitioners’ first question asks this Court to de-
`cide a legal issue that is not presented by the facts of
`this case, according to the findings of the jury, which
`were affirmed by the two lower courts. This ques-
`tion assumes that Officer Catton may be entitled to
`qualified immunity for his use of deadly force be-
`cause he could have believed that Stephen Willis was
`“reaching for a nearby gun” and that his “hand [was]
`within inches of that gun.” (Pet. i.) However, the ju-
`ry, by its verdict, rejected that factual assumption.
`The jury found that Officer Catton “use[d] excessive
`force against Stephen Willis in violation of his
`
`

`

`
`
` 7
`
`Fourth Amendment Constitutional rights.” (Pet. App.
`8.)
`
` The District Court explained the fallacy of pe-
`titioners’ argument, as follows:
`
`“Defendants argue the evidence
`produced at trial – Officer Catton’s
`‘uncontroverted’
`testimony
`–
`demonstrates deadly
`force was
`necessary at the time Officer Cat-
`ton fired the final shot(s) because
`Stephen Willis was reaching for his
`gun. . . . However, because the jury
`found Officer Catton’s final shot(s)
`constituted excessive force, the jury
`necessarily
`found that Stephen
`Willis was not reaching for his gun
`when Officer Catton fired the last
`shot(s).
`
`“Defendants argue there is no
`evidence contradicting Officer Cat-
`ton’s testimony; thus, there was no
`basis for the jury to conclude that
`Officer Catton used excessive force
`when he fired the last shot(s). De-
`fendants ignore significant testi-
`monial evidence to the contrary.
`[Court describes the evidence.] Ac-
`cordingly, this Court finds . . . ,
`based upon the jury’s verdict, that
`Officer Catton’s actions were not
`objectively reasonable when Officer
`Catton shot Stephen Willis in the
`back as he lay on the ground. . . .
`
`

`

`
`
` 8
`
`“Defendants’ framing of this
`[“clearly established” qualified im-
`munity] issue is misguided. The
`jury’s verdict does not permit a
`finding that Stephen Willis was
`reaching for his revolver. Indeed,
`the jury’s verdict necessarily means
`the jury did not believe Stephen
`Willis was reaching for his revolver
`when Officer Catton fired the final
`shot(s).
`
`“Properly framed within the
`factual findings implicit in the ju-
`ry’s verdict, the question to be an-
`swered for the second prong of the
`qualified immunity analysis is this:
`would a reasonable police officer
`have known it was a constitutional
`violation to use deadly force on an
`individual who poses no immediate
`threat to the officer or others? It is
`axiomatic that the answer to this
`question is ‘yes.’”
`
`(Pet. App. 26-30, italics in original.)
`
`In attempting to find support for Catton’s version,
`
`petitioners turn to a hypothetical question put to one
`of respondents’ experts at trial and they attempt to
`convert that person’s qualified response into concrete
`evidence as to what must have taken place. At a
`time in the trial when it had already been estab-
`lished that Stephen Willis was lying on the ground
`without a gun in his hand and that the gun he had
`been removing from the trunk of his car was “about
`two feet south and west of Stephen’s feet” (see Officer
`
`

`

`
`
` 9
`
`Jacobo’s testimony, supra, 2 RT 575 and 576), peti-
`tioners’ counsel asked respondents’ expert to address
`the hypothetical issue of “what if” Mr. Willis were ly-
`ing on the ground reaching for and about to grab a
`gun. 4 RT 986.
`
`The trial court sustained a series of objections to
`petitioners’ questions as argumentative and incom-
`plete hypotheticals. 4 RT 986-987. Eventually, peti-
`tioners’ counsel got around to the question, “If Mr.
`Willis is reaching for and about to grab the gun,
`deadly force is appropriate; correct?” To that hypo-
`thetical question, the expert answered that if Willis
`was “about to reach for the gun,” that would be an
`immediate threat. 4 RT 986-987. But there was no
`evidence that was what happened.
`
`Petitioners attempted to formulate some special
`interrogatories on this topic for the jury, but, as the
`Ninth Circuit noted, petitioners did not make a time-
`ly submission. Their special interrogatories were
`submitted 22 days after the deadline set by the Dis-
`trict Court for jury instructions and verdict forms.
`(Pet. App. 3-4.) The first special interrogatories they
`proposed were offered as closing arguments were
`about to commence and these were found to be
`“vague, argumentative and misstated the law.” 1 ER
`64. Accordingly, when petitioners argued to the
`Ninth Circuit that they should have been allowed to
`submit their interrogatories to the jury, that court
`ruled:
`
`Given the lateness of the request
`and the fact that the verdict form
`already required a jury determina-
`tion of all factual issues essential
`to the judgment, the district court
`
`

`

`
`10
`
`did not abuse its discretion by re-
`fusing to submit defendants’ un-
`timely special interrogatories to
`the jury.
`
`(Pet. App. 4.)
`
`In sum, the jury was not “presented” with the
`possibility that Stephen Willis “had reached for the
`gun but had not gotten to within ‘inches’ of the gun
`prior to Officer Catton firing,” as petitioners now con-
`tend. (Pet. 14.) That was just a hypothetical, an in-
`vention of counsel. There is NO evidence supporting
`the claim that Stephen Willis had gotten within
`inches of the revolver—not even from Catton himself.
`The absence of such evidence and the jury’s finding
`that Catton used excessive force make petitioners’
`first question purely hypothetical.
`
`
`
`II.
`
`PETITIONERS’ SECOND QUESTION, RE-
`GARDING AN AWARD OF ATTORNEYS’
`FEES UNDER SECTION 1983 WHERE THE
`JURY HAS AWARDED ONLY NOMINAL
`DAMAGES, IS NOT RIPE FOR REVIEW.
`THE COURT OF APPEALS HAS REVERSED
`THE JUDGMENT, AFTER RULING THAT
`THE DISTRICT COURT SHOULD NOT
`HAVE RESTRICTED THE JURY TO
`AWARDING ONLY NOMINAL DAMAGES,
`AND HAS REMANDED THE CASE FOR A
`NEW TRIAL ON DAMAGES, WHICH WILL
`AFFECT THE AMOUNT OF ATTORNEYS’
`FEES AWARDED.
`
`At trial, respondents’ counsel asked the jury to
`award $1.00 for the breach of Stephen Willis’s Fourth
`
`

`

`
`11
`
`Amendment right to be free of unreasonable search
`and seizure.
`
` This argument was made necessary because the
`trial court had erroneously ruled that respondents
`could not pursue compensation for Willis’s pain and
`suffering before he died. The Ninth Circuit has since
`ruled that pre-death pain and suffering are compen-
`sable damages in a Section 1983 action. Chaudhry v.
`City of Los Angeles, 751 F.3d 1096 (9th Cir. 2014).
`
`The jury proceeded to award the $1.00 that re-
`spondents requested, and then awarded $1,500,000
`(reduced by 80%)—based on the exact same evidence
`and
`legal standard—in respondents’ California
`wrongful death claim. (Pet. App. 8-15), 1 ER 90-94.
`At no time did respondents claim that $1.00 was the
`true value of the violation of their son’s Fourth
`Amendment right; indeed, they argued for entitle-
`ment to other damages in a pre-trial motion in
`limine, in a post-trial motion, and before the Court of
`Appeals—and the Court of Appeals agreed. It held,
`citing Chaudhry, that the district court erred by pre-
`cluding respondents from seeking damages for Willis’
`pre-death pain and suffering. (Pet. App. 5).
`
`
`
`It then ruled:
`
`We must accordingly vacate the
`judgment on plaintiffs’ §1983 claim
`and remand the case to the district
`court so that plaintiffs may present
`evidence in support of their claim
`for pre-death pain and suffering
`damages.
`
`(Pet. App. 5.) Thus, there has been no final determi-
`nation of damages on respondents’ Section 1983
`claim and there has been no final determination of
`
`

`

`
`12
`
`the basis for, and amount of, respondents’ attorneys’
`fees award.
`
`“[E]xcept in extraordinary cases, [a] writ [of certi-
`
`orari] is not issued until find decree.” Hamilton-
`Brown Shoe Company v. Wolf Bros. & Co., 240 U.S.
`251, 258 (1916); see also DTD Enters, Inc. v. Wells,
`130 S. Ct. 7, 8 (2009) (Kennedy, J., joined by Roberts,
`C. J., and Sotomayor, J.) (Concurring in denial of cer-
`tiorari because “the petition is interlocutory”); Vir-
`ginia Military Institute v. United States, 508 U.S.
`946, 946 (1993) (Scalia, J., concurring in denial of
`certiorari) (“We generally await final judgment in the
`lower courts before exercising our certiorari jurisdic-
`tion.”); Robert L. Stern, et al, Supreme Court Prac-
`tice §4.18, at 282 (9th ed. 2007) (“[I]n the absence of
`some...unusual factor, the interlocutory nature of a
`lower court judgment will generally result in a denial
`of certiorari.”).
`
`There is no final judgment in this case and noth-
`ing extraordinary warrants immediate review. In-
`deed, the inevitable impact of the Court of Appeals’
`ruling is that respondents are likely to be awarded
`more damages under Section 1983 for Willis’ pre-
`death pain and suffering. By its ruling, the Ninth
`Circuit opened the door:
`
`We decline to rule on plaintiffs’
`contentions that the district court
`abused its discretion by reducing
`counsel’s hourly rates and by im-
`posing an across-the-board 35% re-
`duction. The district court should
`revisit these issues following the
`limited re-trial on the issue of pre-
`death pain and suffering damages.
`
`

`

`
`13
`
`The court predicated that 35% re-
`duction at least in part on the de-
`gree of success plaintiffs achieved
`in
`the
`litigation, which could
`change depending on the extent to
`which plaintiffs recover damages
`for Willis’ pre-death pain and suf-
`fering.
`
`(Pet. App. 7).
`
`Petitioners do not claim any conflict among the
`federal circuit courts on this issue, nor do they con-
`tend there is a conflict with this Court’s precedents.
`To the contrary, the circuit courts that have ruled on
`the issue are in agreement and are aligned with this
`Court’s precedent. Compare Hensley v. Eckerhart,
`461 U.S. 424 (1983) with Aubin v. Fudala, 782 F.2d
`287 (1st Cir. 1986), Hawa Abdi Jama v. Esmor Corr.
`Servs., 577 F.3d 169 (3d Cir. 2009), Bridges v. East-
`man Kodak Co., 102. F.3d 56 (2d Cir. 1996), NOW v.
`Operation Rescue, 37 F.3d 646 (D.C. Cir. 1994).
`
` Here, all claims stemmed from a single course of
`conduct: the shooting of Stephen Willis by police of-
`ficers. Although respondents asked the jury to rule
`in their favor on two causes of action, the Fourth
`Amendment violation and the California wrongful
`death claim, the core of each was the same shooting,
`and the parties and the district court stipulated that
`both claims would be presented to the jury under
`identical legal standards. (Pet. App. 49.) As this
`Court held when presented with a similar situation
`in Hensley, supra, 461 U.S. at 435:
`
`Such a lawsuit cannot be viewed as
`a series of discrete claims. Instead
`the district court should focus on
`
`

`

`
`14
`
`the significance of the overall relief
`obtained by the plaintiff. . . .
`
`. . .
`
`Litigants in good faith may raise
`alternative legal grounds for a de-
`sired outcome, and the court’s re-
`jection of or failure to reach certain
`grounds is not a sufficient reason
`for reducing a fee. The result is
`what matters.
`
`Prevailing on both causes, respondents got all
`that they were then allowed, given the District
`Court’s erroneous ruling on pain and suffering. By
`comparison, in Farrar v. Hobby, 56 U.S. 103, 115
`(1992), on which petitioners rely, there was a single
`award of $1.00 and a finding that such nominal
`damages highlighted the plaintiff’s failure to prove
`actual, compensable injury. In the case at bar, re-
`spondents did prove actual, compensable injury, as
`shown by the $1.5 million award (reduced by 80% for
`Willis’ comparative negligence) on the wrongful
`death cause of action. They are likely to be awarded
`far more than nominal damages on the retrial, thus
`mooting the question raised by petitioners.
`
`
`
`CONCLUSION
`
`For the foregoing reasons, the petition for a writ
`of certiorari should be denied.
`
`
`
`///
`
`
`
`///
`
`

`

`
`15
`
`Respectfully submitted,
`
`ELLEN LAKE, ESQ.
`COUNSEL OF RECORD
`4230 LAKESHORE AVENUE
`OAKLAND, CA 94610
`(510)272-9393
`ELAKE@EARTHLINK.NET
`
`WALTER H. WALKER, III, ESQ.
`BEAU R. BURBIDGE, ESQ.
`WALKER, HAMILTON,
`KOENIG & BURBIDGE, LLP
`50 FRANCISCO STREET, SUITE
`460
` SAN FRANCISCO, CA 94133
`(415) 986-3339
`WALTER@WHKB-LAW.COM
`
`
`Attorneys for Respondents
`Chris Willis and Mary Willis,
`individually and as successors
`in interest to Stephen Willis
`
`

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