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1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

DENNIS KELLER and CRYSTAL

KELLER,

NO. CIV. S-04-1325 LKK/DAD

Plaintiffs,

v. O R D E R

 

CITY OF STOCKTON, et al.,

Defendants.

 /

Pending before the court are motions for judgment as a matter

of law (“JMOL”), for a new trial, or for remittitur brought by the

City of Stockton, Officer Kathryn Henderson, and Sergeant Ken

Praegitzer (“defendants”). Plaintiffs, Dennis and Crystal Keller,

oppose these motions. For the reasons set forth below, defendants’

motion for remittitur is granted in part and denied in part. All

other motions must be denied.

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1

 Officer Takeda was not named as a defendant.

2

 During discovery, plaintiffs dismissed the County of San

Joaquin and Jose Romero.

2

I.

FACTUAL BACKGROUND

On July 10, 2002, four-year-old Crystal Keller was taken from

her day care provider’s house in Sacramento by Stockton Police

Officers Kathryn Henderson (“Henderson”) and Ken Takeda (“Takeda”)

and placed at a children’s shelter in Stockton.1 The removal was

approved by Henderson’s supervisor, Stockton Police Sergeant Ken

Praegitzer (“Praegitzer”). Trial Transcript (“TT”) at 41:8-9. No

warrant was obtained prior to removing Crystal. TT at 42:4-5. On

July 9, 2004, plaintiffs filed suit against the City of Stockton

(“City”), the County of San Joaquin, Child Protective Services

worker Jose Romero, and Officers Henderson and Praegitzer, alleging

unreasonable seizure of Crystal from the custody of her father.

Suit was premised on 42 U.S.C. § 1983 and alleged violations of the

Fourth and Fourteenth Amendments to the U.S. Constitution.2

Specifically, plaintiffs alleged that defendants unreasonably

seized Crystal and unlawfully interfered with their parent-child

relationship. Amend. Compl. at 4:23; TT at 426:4. 

After a four-day trial, which ended on March 31, 2006, the

jury found that the City, Henderson, and Praegitzer violated the

Kellers’ civil rights and awarded compensatory damages to Dennis

Keller in the amount of $100,000 and to Crystal Keller in the

amount of $500,000. The jury awarded punitive damages against

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3

Henderson and Praegitzer in the amount of $1,000,000 for each

plaintiff, for a total of $2,600,000 in damages. Special Verdict,

filed March 31, 2006. Defendants filed the present motions on

April 17, 2006.

II.

ANALYSIS

Defendants make the following arguments: (1) the court erred

in not instructing the jury as to the rules for protective custody

set forth in California Penal Code § 279.6; (2) the jury’s

compensatory damages are so high they constitute a denial of

justice; (3) plaintiffs failed to adequately support their claim

for punitive damages; (4) the jury’s punitive damages award denied

Sergeant Praegitzer and Officer Henderson due process; and (5) that

the jury’s punitive damages awards “fail due process excessiveness

scrutiny.” Defs.' Mot. at 2. 

Defendants urge the court to take one or more of the following

actions: (1) order a new trial; (2) order plaintiffs to remit a

portion of the compensatory damages or face a new trial on

compensatory damages; (3) enter judgment as a matter of law in

favor of Sgt. Praegitzer and Officer Henderson on plaintiffs’

punitive damages claim; (4) order plaintiffs to remit a portion of

the punitive damages or face a new trial on punitive damages. Id.

Below, the court addresses defendants’ arguments in the context of

the motions in which they are raised.

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4

A. MOTION FOR JUDGMENT AS A MATTER OF LAW

Praegitzer and Henderson move for judgment as a matter of law

pursuant to Fed. R. Civ. P. 50 on the issue of punitive damages

because they contend “there was insufficient evidence presented at

trial to support the jury’s conclusion that defendants acted either

with malice or in reckless disregard of the Kellers’ rights.”

Defs.' Mot. at 2, 11. Defendants also assert that plaintiffs had

the burden of establishing the appropriate amount of punitive

damages and that they were required to present evidence regarding

defendants’ ability to pay punitive damages. Defendants’ arguments

are unavailing.

1. Standards

Defendants failed to move for JMOL before submission of the

case to the jury. By not doing so, they failed to comply with the

procedural prerequisite for renewing their motion for JMOL after

trial, and thus, the court is precluded from reviewing the

sufficiency of evidence. Janes v. Wal-Mart Stores, Inc., 279 F.3d

883, 886-87 (9th Cir. 2002); Farley Transp. Co. v. Santa Fe Trail

Transp. Co., 786 F.2d 1342, 1345 (9th Cir. 1985). The Ninth

Circuit construes this requirement strictly. Farley, 786 F.2d at

1346 (“the requirement that [a JMOL motion] be made at the close

of all the evidence is to be strictly observed”). 

When a party loses its right to challenge the sufficiency of

the evidence because it failed to file a procedurally-sound Rule

50(b) motion, the court is limited to reviewing the jury’s verdict

for plain error and should reverse only if such plain error would

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3

 See Dang v. Cross, 422 F.3d 800, 805-808 (9th Cir. 2005)

(Punitive damages may be awarded in 42 U.S.C. § 1983 cases if

defendant’s conduct was malicious, oppressive, or in reckless

disregard of plaintiff’s rights).

5

result in a “manifest miscarriage of justice.” Janes, 279 F.3d at

888 (9th Cir.2002). See also Bird v. Glacier Elec. Coop., Inc., 255

F.3d 1136, 1148 (9th Cir. 2001)(“We will review for plain or

fundamental error [in a civil case] . . . where the integrity or

fundamental fairness of the proceedings in the trial court is

called into serious question”). If such a finding is made, this

court is still not required to reverse unless the error "seriously

affect[ed] the fairness, integrity, or public reputation of

judicial proceedings." United States v. Cooper, 173 F.3d 1192, 1203

(1999)(internal quotation and citations omitted). 

As explained below, there is sufficient evidence from which

a jury could conclude that punitive damages should be awarded.

2. A Reasonable Jury Could Conclude that Defendants Acted

With Deliberate Indifference to Plaintiffs' Rights

The court instructed the jury that “plaintiff has the burden

of proving that punitive damages should be awarded, and the amount,

by a preponderance of the evidence,” and that punitive damages are

appropriate if the defendant’s conduct “was malicious or in

reckless disregard of plaintiff’s rights.”3 See Jury Instructions,

Instruction No. 31, filed March 31, 2006. The instruction further

stated that “conduct is in reckless disregard of plaintiff’s rights

if, under the circumstances, it reflects complete indifference to

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4

 This instruction complies with the Supreme Court’s

conclusion that punitive damage awards in § 1983 cases “did not

require a showing of actual malicious intent; they permitted

punitive damage awards on variously stated standards of negligence,

recklessness, or other culpable conduct short of actual malicious

intent. Smith v. Wade, 461 U.S. 30, 45 (1983).

5

 Section 305 of the California Welfare and Institutions Code

provides in pertinent part: 

Any peace officer may, without a warrant, take into

temporary custody a minor:

(a) When the officer has reasonable cause for believing

that the minor is a person described in Section 300,

and, in addition, that the minor has an immediate need

for medical care, or the minor is in immediate danger of

physical or sexual abuse, or the physical environment or

the fact that the child is left unattended poses an

immediate threat to the child's health or safety. In

cases in which the child is left unattended, the peace

officer shall first attempt to contact the child's

parent or guardian to determine if the parent or

guardian is able to assume custody of the child. If the

parent or guardian cannot be contacted, the peace

officer shall notify a social worker in the county

6

the safety and rights of others.”4 Id. Defendants contend that

there is no evidence from which a jury could conclude that

Praegitizer or Henderson acted with malice or in reckless disregard

of the Kellers' rights. I cannot agree.

Defendants argue that they followed city policy and there was

no reason to believe that the policy deviated from the requirements

of the law. The record, however, reflects that defendants were

aware of the state-mandated procedures and standards that they were

obligated to follow - specifically, Welfare and Institutions Code

§ 305 – and that they failed to do so. Defendants testified that

they understood the law governing their conduct as codified in 

§ 305 - that an “imminent threat” must be present.5 Henderson

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welfare department to assume custody of the child.

6

 As both parties agree, and as the court instructed the

jury, plaintiffs bear the burden of establishing that punitive

damages should be awarded, and the amount, by the preponderance of

the evidence. See Ninth Cir. Jury Instructions, 7.5 Punitive

7

testified that a police officer is allowed to take a child without

getting a warrant only when he or she was in “imminent danger,” and

in this case, sexual abuse. Trial Transcript (“TT”) at 114-115.

Henderson further testified that the removal of a child from a

parent should only happen in “exigent circumstances” and that in

this case, “it applied to sexual abuse,” and could happen only

where “she [Crystal] had either been sexually abused or at risk of

being subjected to sexual abuse.” TT at 111-112. 

Despite her knowledge of the governing standards, Henderson

removed Crystal based on one-year-old allegations against Dennis

Keller which were previously investigated by Child Protective

Services and found to be inconclusive. TT at 108-111. Henderson

conducted no independent investigation as to Dennis Keller’s

parenting skills prior to removing Crystal from his care. Id.

Because such evidence could lead a reasonable jury to conclude that

defendants were aware of the legal standards which govern the

removal of Crystal but that they nevertheless acted in “reckless

disregard” of the Kellers' rights, the court did not err in

allowing the punitive damages claim to go to the jury. 

Defendants additionally assert that the punitive damages award

cannot stand because plaintiffs “made no effort to establish an

appropriate amount.”6 Defs.' Mot. at 12. Again, I cannot agree.

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Damages. 

7

 The court’s instructions explained to the jury as to the

proposed nature of punitive damages, identified the damages as

punishment for civil wrongdoing, and explained that their

imposition was not compulsory. 

8

First, defendants have cited no binding authority, and the court

has found none, which requires plaintiffs to tell the jury exactly

how much they request in punitive damages. Secondly, it appears

that plaintiffs met their burden of establishing the appropriate

amount of damages by providing evidence that an award of punitive

damages was appropriate, and then asking the jury to use their

judgment to determine the appropriate amount.7 While plaintiffs’

counsel made no mention of the specific amount during the trial,

he explained to the jury in his closing statement that the amount

is to be “determined with the use of reason and consideration of

the damages that we’ve been able to prove in this case.” TT at

399-400. Plaintiffs’ counsel also argued to the jury that

“defendants need to be told that what they did here is wrong so

they don’t do it again,” and that plaintiffs hoped “this case has

managed to serve a purpose to protect children in the future and

protect Crystal in the future.” TT at 399-400. Based on

plaintiffs’ instructions to the jury, the court holds that

plaintiffs made an effort to establish the appropriate amount of

damages as required under the law. No plain error occurred in

allowing the punitive damages to be presented to the jury on this

account.

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9

Finally, defendants contend that the punitive damages award

cannot stand because plaintiffs failed to present evidence of

defendants’ financial condition, and that their motion for a new

trial must be granted on this account. Defs.' Mot. at 12. 

Defendants cite to a number of cases from other circuits and from

the California Supreme Court. While it may be true that this is

a requirement in other jurisdictions, the Ninth Circuit has not

imposed any such requirement for supporting a punitive damages

award. C.f. Morgan v. Woessner, 997 F.2d 1244, 1259 (9th Cir.

1993)(remanding only state law portion of punitive damages award

for the purpose of reconsidering the award in light of the fact

that plaintiff must provide evidence of defendant's financial worth

under California law); see also Hilao v. Estate of Marcos, 103 F.3d

767, 781-82 & n.7 (9th Cir. 1996)(approved a jury's discretion to

consider financial condition as one relevant factor in awarding

punitive damages).

For all the reasons discussed above, no plain error was

committed and the court must accordingly deny defendants’ motion

for JMOL. 

B. MOTION FOR A NEW TRIAL

Defendants request a new trial for two errors that they

contend were made by the court - namely, that the court erred in

declining to give defendants’ special jury instruction based on

California Penal Code § 279.6 and for providing a verdict form that

“substantially confused the issue of punitive damages.” Defs.'

Mot. at 9, 12. Defendants’ arguments are unavailing. 

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10

1. Standards

Defendants’ failure to move for judgment as a matter of law

does not preclude their motion for a new trial under Fed. R. Civ.

P. 59. Freund v. Nycomed Amersham, 347 F.3d 752, 765 (9th Cir.

2003). The Ninth Circuit has articulated a number of different

circumstances that warrant a new trial, stating that district

courts have discretion to grant Rule 59 motions when the verdict

is “against the clear [or “great”] weight of the evidence,” when

the evidence shows that the jury has reached a “seriously erroneous

result,” and/or when the evidence shows that acceptance of the

verdict would cause a “miscarriage of justice.” Id.; EEOC v. Pape

Lift, Inc., 115 F.3d 676, 680 (9th Cir. 1997)(internal quotations

and citations omitted); see also Landes Constr. Co. v. Royal Bank

of Canada, 833 F.2d 1365, 1371 (9th Cir. 1987)(Rule 59 motion for

a new trial should be granted if “the verdict is against the clear

weight of the evidence . . . . The judge can weigh the evidence

and assess the credibility of witnesses, and need not view the

evidence from the perspective most favorable to the prevailing

party”); Roy v. Volkswagon of America, 896 F.2d 1174 (“The trial

court may grant a new trial, even though the verdict is supported

by substantial evidence, if the verdict is contrary to the clear

weight of the evidence, or is based upon evidence which is false,

or to prevent, in the sound discretion of the trial court, a

miscarriage of justice.”)(citation omitted). While the court

undoubtedly has discretion to assess the evidence based on these

various standards (“against the clear weight of the evidence,”

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11

“seriously erroneous result,” “miscarriage of justice”), the

standard for finding insufficient evidence warranting a new trial

remains stringent. 

2. Special Jury Instruction Based on Penal Code § 279.6

Defendants maintain that the court erred when it declined to

give defendants’ special jury instruction based on Penal Code 

§ 279.6. They argue that Section 279.6 “provided a complete

defense to Plaintiffs’ federal claims,” Defs.' Mot. at 9, and that

the court’s refusal to give this instruction “deprived the jury of

important legal considerations probative of the reasonableness of

the Defendants’ actions.” Defs.' Repl. at 5. 

Defendants’ proposed instruction stated:

(a) A law enforcement officer may take a child into

protective custody under any of the following

circumstances:

(1) It reasonably appears to the officer that a

person is likely to conceal the child, flee the

jurisdiction with the child, or, by flight or

concealment, evade the authority of the court.

(2) There is no lawful custodian available to take

custody of the child.

(3) There are conflicting custody orders or

conflicting claims to custody and the parties cannot

agree which party should take custody of the child.

(b) When a law enforcement officer takes a child into

protective custody pursuant to this section, the officer

shall do one of the following:

(1) Release the child to the lawful custodian of

the child, unless it reasonably appears that the release

would cause the child to be endangered, abducted, or

removed from the jurisdiction.

(2) Obtain an emergency protective order ordering

placement of the child with an interim custodian who

agrees in writing to accept interim custody.

(3) Release the child to the social services agency

responsible for arranging shelter or foster care.

(4) Return the child as ordered by a court of

competent jurisdiction.

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8

 It appears defendants’ proposed instruction was derived

verbatim from California Penal Code § 279.6(a)(1), (2), (3) and

(b)(1), (2), (3), (4).

9

 Local Rule 51-163 provides that “[u]nless the Court

otherwise orders or permits, requested jury instructions in civil

and criminal actions shall be filed with the Clerk and copies

served on all parties at the opening of the trial (emphasis

supplied).

12

(California Penal Code section 279.6)

Def.’s Supp. Jury Instructions, filed March 27, 2006.8

First, the court notes that the proffer of the instruction was

untimely. The court instructed the parties in its February 23,

2006 Pretrial Order that counsel’s “specific jury instructions

shall be filed fourteen (14) calendar days prior to trial.” 

Defendants, however, did not submit the proposed instruction at

issue until the day before trial.9 As the court admonished counsel

during oral argument, such deadlines provide the court with an

opportunity to research difficult questions raised by the proposed

instructions. Defendants’ failure to timely submit this

instruction deprived the court of the appropriate opportunity to

consider its applicability. Nevertheless, the court considered the

instruction during trial, and declined to provide it to the jury

for a number of reasons stated on the record and further elaborated

in this order. TT at 253. 

As the court explained to the parties during trial, the jury

instruction was inappropriate because the evidence overwhelmingly

demonstrated that defendants relied on Welfare and Institutions

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10 The court notes that defendant Praegitzer testified that

officers were required to know both section 305 of the Welfare and

Institutions Code and section 279.6 of the Penal Code prior to

removing a child. TT at 229. Defendants also argued during oral

argument that Penal Code Section 279 is referred to in the

Department’s policies, which states that “[o]fficers, you need to

be familiar with these statutes.” As the court noted during oral

argument, however, and as this order further explains, there was

little, if any, evidence that defendants operated under the

authority of Penal Code § 279.6.

11 Section 305 states in pertinent part: “Any peace officer

may, without a warrant, take into temporary custody a minor: (a)

When the officer has reasonable cause for believing that the minor

is a person described in Section 300, and, in addition, that the

minor has an immediate need for medical care, or the minor is in

immediate danger of physical or sexual abuse, or the physical

environment or the fact that the child is left unattended poses an

immediate threat to the child's health or safety.”

13

Code in understanding the scope of their duties.10 TT at 253.

Defendants’ testimony consistently demonstrated that defendants

relied on California Welfare and Institutions Code § 305, which

allows warrantless removal of a child when it is reasonable to

believe the child is in “immediate danger of physical or sexual

abuse.”11 Officer Henderson testified that she believed the

standard in determining “whether children should be removed from

their parents” was in “exigent circumstances,” and that, “in this

particular case it applied to sexual abuse, that [Crystal] had

either been sexually abused or at risk of being subjected to sexual

abuse.” TT at 111-112. Henderson additionally stated that section

305 allowed for the warrantless removal of a child, when there was

“reasonable cause to believe . . . that she had suffered sexual

abuse, and was at a substantial risk to incur sexual abuse.” TT

at 114-115. Praegitzer explained that he was concerned that

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14

Crystal was in imminent danger of physical harm based on

“allegations in the report” and “past allegations of abuse.” TT

at 207-208. Finally, Officer Richard Leslie testified that the

policy regarding welfare checks for children only referenced

section 305. TT at 235, 247, 248.

Although there was some testimony from defendants regarding

Dennis Keller’s potential concealment of Crystal, a permissible

ground for removal under the penal code at issue, the evidence

demonstrates that it was not a realistic threat. Henderson

testified that the concealment of Crystal “could be an issue”

because Crystal “was not found at the preschool where she was

supposed to be,” and because Dennis Keller “wasn’t the custodial

parent at the time as defined by court order.” TT at 101, 117,

129. Likewise, Takeda testified that Henderson was concerned that

they did not know where Crystal was, were unable to contact Dennis

Keller, and thought he was concealing Crystal from her mother. TT

at 181-182. Henderson, however, had no difficulty in finding

Crystal at her caretaker’s house and both Henderson and Tekada

testified that they had no concerns about Crystal’s physical

condition or the competency of her caretaker, Debra Morie

(“Morie”), and that Morie’s house was “in an appropriate condition

for a child.” TT at 125, 184. Henderson further testified that

she was aware that another Stockton police officer decided Dennis

Keller should care for Crystal while the allegations of sexual

abuse against Crystal’s mother were being investigated. TT at 121.

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12 Nor was there any evidence that Mr. Keller’s conduct fell

within the scope of the other provisions of section 279.6. There

was a lawful custodian available to take Crystal because it was

Crystal’s mother, not Dennis Keller, who was being investigated for

sexual abuse. Finally, there were no conflicting custody orders

or disagreement between the parties regarding who should take the

child. 

15

The investigation report notes taken by Henderson also state that

Crystal was taken into custody “due to the fact that [Crytal’s

mother] was allegedly molesting Crystal and Dennis’ court

visitation was not in effect.” TT at 146:2-4. Such evidence

undermines defendants’ present assertions that they were concerned

about Dennis Keller’s intent to conceal his daughter when she was

not returned to her mother pursuant to the joint custody order.12

 Even though defendants assert in their reply brief and during

oral argument that the court’s refusal to provide the instruction

resulted in error justifying a new trial, the evidence demonstrates

that defendants removed Crystal based on the standards set forth

in the Welfare and Institutions Code, not under the California

Penal Code. Indeed, “[a] trial judge is given substantial latitude

in tailoring the instructions so long as they fairly and adequately

cover the issues presented” when “evaluated in the context of the

whole trial.” United States v. Marabelles, 724 F.2d 1374, 1382-83

(9th Cir. 1984). “A party is entitled to an instruction about his

or her theory of the case if it is supported by law and has

foundation in the evidence.” Jones v. Williams, 297 F.3d 930, 934

(9th Cir. 2002). Here, however, providing the penal code jury

instruction was inappropriate since it has no “foundation in the

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13 The court assumes, without deciding, that the Penal Code

provision was consonant with the United States Constitution.

16

evidence” and there were no facts to support that defendants were

operating under the scope of Penal Code § 279.6.13 Consequently,

defendants’ argument that this instruction would have either

provided a defense or assisted the jury with assessing the

reprehensibility of defendants’ conduct must be rejected.

3. Jury Verdict Form

Defendants further maintain that they are entitled to a new

trial because the jury verdict form was misleading and denied

Praegitzer and Henderson due process. Defs.' Mot. at 12. Assuming

arguendo that the verdict does not support a new trial, the verdict

form explained that if the jury found for the plaintiff “as to any

one of the defendants” it had to answer two questions:

What amount of compensatory damages do you award?

What amount, if any, of punitive damages do you award?

Special Verdict, filed March 31, 2006; Defs.' Mot. at 7. 

Defendants assert that the verdict form did not make it clear

that punitive damages were only appropriate against Praegitzer and

Henderson as individuals, and that punitive damages could not be

awarded against the City. Defs.' Mot. at 8. As a result,

defendants argue, the jury believed that it could impose punitive

damages against the city, not the individual officers and,

therefore, based the award on the City’s ability to pay. Defs.'

Mot. at 12. 

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14 Federal Rule of Evidence 606(b) states: “[u]pon an inquiry

into the validity of a verdict or indictment, a juror may not

testify as to any matter or statement occurring during the course

of the jury's deliberations or to the effect of anything upon that

or any other juror's mind or emotions as influencing the juror to

assent to or dissent from the verdict or indictment or concerning

the juror's mental processes in connection therewith, except that

a juror may testify on the question whether extraneous prejudicial

information was improperly brought to the jury's attention or

whether any outside influence was improperly brought to bear upon

any juror. Nor may a juror's affidavit or evidence of any

statement by the juror concerning a matter about which the juror

would be precluded from testifying be received for these purposes.”

17

In support of their argument, defendants tender the

declarations of several jurors to demonstrate that the jury was

confused and did not understand who punitive damages could be

awarded against. Defs.' Mot. at 8, 13. These declarations are

inadmissible under Rule 606(b) of the Federal Rules of Evidence and

will not be considered by the court.14 As the Ninth Circuit has

held, “[a]fter a verdict is returned a juror will not be heard to

impeach the verdict when his testimony concerns his

misunderstanding of the court's instructions.” United States v.

Stacey, 475 F.2d 1119, 1121 (9th Cir. 1973). In addition, “it is

improper and unethical for lawyers to interview jurors to discover

what was the course of deliberation of a trial jury” and “neither

a trial court nor an appellate court has the authority to inquire

into the jury's decisional processes.” Smith v. Cupp, 457 F.2d

1098, 1100 (9th Cir. 1972). Only when there is an allegation of

juror misconduct is juror testimony admissible regarding

“extraneous influences on the deliberation process.” Hard v.

Burlington N. Railroad, 812 F.2d 482, 486 (9th Cir. 1987); see also

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15 Of course, had the defendants voiced any objection to the

form, it was readily modifiable to resolve any confusion. While

the court has no way of knowing whether defendants were

“sandbagging,” the present record demonstrates the reason that

objection must first be made to the trial court for the objection

to be preserved.

18

Economou v. Little, 850 F. Supp. 849, 852 (N.D. Cal. 1994) (“The

Ninth Circuit requires a post-verdict inquiry into juror

deliberations only if the court learns of a possible incident of

juror misconduct.”).

Moreover, any objection to the verdict form was arguably

waived. Defense counsel was given the form with the jury

instructions but failed to object when asked on the record.15 Even

if defendants did not waive their objection, it is unlikely there

was any juror confusion due to counsels’ arguments to the jury.

Plaintiffs’ counsel explained during his opening argument that

plaintiffs were “asking for punitive damages against the officers.”

TT at 30. He reiterated this point in his closing argument,

stating that “[w]e’ve asked for punitive damages against the two

individual defendants.” TT at 398. Plaintiffs’ counsel made

explicit that “[t]hese damages are not available against the City

of Stockton for legal reasons.” TT at 398. 

Similarly, defense counsel clarified during their closing

argument that “[p]laintiffs are asking for punitive damages against

Ken Praegitzer and Kathryn Henderson.” TT at 398. Any possibility

of jury confusion was mitigated by both plaintiffs’ and defendants’

counsel’s clarifications to the jury. Thus, any error committed

by the court through the jury verdict form was harmless error.

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19

Where a motion for a new trial is based on allegations that the

court committed error, the error must be harmful to warrant a new

trial. See Fed. R. Civ. P. 61. A new trial is not justified if

the error was harmless. Glanzman v. Uniroyal, Inc., 892 F.2d 58,

61 (9th Cir. 1989)(“If an error does ‘not affect the substantial

rights of the parties’ it will be deemed ‘harmless’ and not grounds

for reversal or appeal.” This concept under Rule 61 applies at

trial and on appeal)(citation omitted). In the case at bar, any

error committed by the court was harmless. Defendants’ motion for

a new trial based on the jury verdict form must be denied.

C. MOTION FOR REMITTITUR 

Defendants urge the court to remit the compensatory and

punitive damages awarded to plaintiffs, contending that they are

unsupported by the evidence. The court considers defendants’

contentions below.

1. Standards

Where an award of damages is grossly excessive or monstrous,

clearly not supported by the evidence, or only based on speculation

or guesswork, and gives rise to an inference that "passion and

prejudice" tainted the jury's finding of liability, a new trial may

be in order. Snyder v. Freight, Constr., Gen. Drivers,

Warehousemen & Helpers, Local No. 287, 175 F.3d 680, 689 (9th Cir.

1999)(citing Los Angeles Memorial Coliseum Comm'n v. National

Football League, 791 F.2d 1356, 1360 (9th Cir. 1986); Seymour v.

Summa Vista Cinema, Inc., 809 F.2d 1385, 1387 (9th Cir. 1987)).

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However, where there is no evidence that passion and prejudice

affected the liability finding, remittitur of damages "which the

court considers justified" is an appropriate method of reducing an

excessive verdict. Snyder, 175 F.3d at 689; Seymour, 809 F.2d at

1387. When the court, after viewing the evidence concerning

damages in a light most favorable to the prevailing party,

determines that the damages award is excessive, it has two

alternatives: (1) it may grant defendant's motion for a new trial;

or (2) deny the motion conditional upon the prevailing party

accepting a remittitur. Fenner v. Dependable Trucking Co., 716

F.2d 598, 603 (9th Cir. 1983). The prevailing party is given the

option of either submitting to a new trial or of accepting a

reduced amount of damage which the court considers justified. Id.

If the prevailing party does not consent to the reduced amount, a

new trial must be granted. Id. The proper amount of a remittitur

is the maximum amount sustainable by the evidence. D & S Redi-Mix

v. Sierra Redi-Mix & Contracting Co., 692 F.2d 1245, 1249 (9th Cir.

1982); see also, 11 Wright, Miller & Kane, Federal Practice and

Procedure: Civil 2d § 2815 (stating the "maximum amount" theory of

remittiturs "is the only theory that has any reasonable claim of

being consistent with the Seventh Amendment).

2. Compensatory Damages

In reviewing a jury's damages award, the court must uphold the

jury's “finding of the amount of damages unless the amount is

‘grossly excessive or monstrous,’ clearly not supported by the

evidence, or ‘only based on speculation or guesswork.’ ” Handgards,

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Inc. v. Ethicon, Inc., 743 F.2d 1282, 1297 (9th Cir. 1984) (quoting

Blanton v. Mobil Oil Corp., 721 F.2d 1207, 1216 (9th Cir. 1983),

cert. denied, 471 U.S. 1007 (1985)), cert. denied, U.S. , 105

S.Ct. 963 (1985). In § 1983 cases such as the one at bar, damages

are meant to compensate persons for injuries that are caused by the

deprivation of constitutional rights. Memphis Cmty. Sch. Dist. v.

Stachura, 477 U.S. 299, 307 (1986)(citations omitted). 

Compensatory damages may include not only out-of-pocket loss and

other monetary harms, but also such injuries as impairment of

reputation, personal humiliation, and mental anguish and suffering.

Id. 

Defendants contend that the jury’s compensatory awards of

$100,000 to Dennis Keller and $500,000 to Crystal Keller were

excessive and were so high “as to shock the judicial conscience and

constitute a denial of justice.” Defs.' Mot. at 9 (citations

omitted). “[V]iewing the evidence concerning damages in a light

most favorable to the prevailing party,” as the court must, Fenner,

716 F.2d at 603, the jury’s compensatory damages were supported by

the evidence and not “grossly excessive or monstrous.” Los Angeles

Memorial Coliseum Comm’n, 791 F.2d at 1360.

Defendants emphasize that the court limited Dennis Keller’s

compensatory awards to five days, see Jury Instruction No. 28,

filed March 31, 2006, that he suffered “no physical injuries,” and

that “five days of distraction . . . cannot be worth $100,000.”

Defs.' Mot. at 9-10. They make similar arguments with respect to

Crystal Keller, explaining that Crystal suffered “no physical

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16 Defendants assert that Crystal’s anxiety predated July 10,

that she has had only “two recurring nightmares,” and that some of

her anxiety derives “from the time she witnessed her mother’s

arrest.” Mot. at 10. 

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harm,” that her fear of officers is due to other causes, and that

she is now a well-adjusted child, “performing well at school, has

lots of friends and plays well with others.”16 Defs.' Mot. at 10-

11. Their attempts at minimizing the injury and thus the

compensatory damages the jury found for plaintiffs are not

successful. As noted above, compensatory damages for § 1983 cases

may also include non-physical injuries such as impairment of

reputation, personal humiliation, and mental anguish and suffering.

See Memphis Cmty. Sch. Dist. v. Stachura, supra. 

As plaintiffs point out, the record is replete with testimony

that defendants’ actions affected the bond between Crystal and

Dennis Keller and caused him mental anguish and emotional trauma.

See, e.g., TT at 292 (Dennis Keller “couldn’t concentrate” at work

and in general, he had planned her fifth birthday and felt he had

“somehow failed [his] daughter”); 257 (Dennis Keller “felt badly

he couldn’t protect her.”). The record also reflects that

defendants’ actions affected Crystal’s emotional well-being and her

relationship with her father. See, e.g., TT at 54 (Crystal

“worr[ie]s a lot . . . about getting taken again . . .” and is

“scared and terrified” that “[she] would never see [her] dad

again”); 55 (defendants’ removal of Crystal affected her schoolwork

and concentration,” and she is scared that police will “come and

swipe [her].”). Where, as here, the compensatory damages verdict

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for Dennis and Crystal Keller finds substantial support in the

record and lie within the range sustainable by the proof, the court

will not play “Monday morning quarterback” and “supplant the jury's

evaluation of the complex and conflicting evidence with its own.”

Los Angeles Memorial Coliseum Comm'n, 791 F.2d at 1366 (citations

and internal quotations omitted). Defendants’ request to remit

plaintiffs’ compensatory damages must be denied.

3. Punitive Damages

The jury imposed $2 million in punitive damages against

defendants Praegitzer and Henderson, $1 million for each plaintiff.

Defendants contend that the jury’s punitive damages are excessive

and that it furthers “no legitimate purpose and constitutes an

arbitrary deprivation of property.” Defs.' Mot. at 13 (citation

omitted). Defendants urge the court to order plaintiffs to remit

a substantial portion of the punitive damages or face a new trial

on punitive damages. Defs.' Mot. at 18. Plaintiffs, on the other

hand, contend that the awards of punitive damages are not

constitutionally excessive. The court will not upset the jury’s

finding that Crystal Keller is entitled to $1 million in punitive

damages. The court concludes, however, that the jury’s award of

$1 million for Dennis Keller is excessive. 

Both parties correctly point out that BMW of North Am., Inc.

v. Gore, and State Farm Mut. Auto. Inc. Co. v. Campbell provide the

standards governing the court’s determination of punitive damages.

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Punitive damages can be imposed to further the interest of

“punishing unlawful conduct and deterring its repetition.” BMW of

North Am., Inc. v. Gore, 517 U.S. 559, 568 (1996); State Farm Mut.

Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003). But a

punitive damages award that is “grossly excessive” can be in

violation of the Due Process Clause of the Fourteenth Amendment.

Gore, 517 U.S. at 568. A grossly excessive award “furthers no

legitimate purpose and constitutes an arbitrary deprivation of

property.” Campbell, 538 U.S. at 417 (citing Pacific Mut. Life

Ins. Co. v. Haslip, 499 U.S. 1, 42 (O’Connor, J., dissenting)).

They also violate “elementary notions of fairness” by not providing

a person with fair notice “of the severity of the penalty that a

State may impose.” Campbell, 538 U.S. at 417.

Gore and Campbell provide three “guideposts” for determining

whether a punitive damages award is unconstitutionally excessive:

(1) the degree of reprehensibility of the defendant’s

misconduct; (2) the disparity between the actual or

potential harm suffered by the plaintiff and the

punitive damages awarded; and (3) the difference between

the punitive damages awarded by the jury and the civil

penalties authorized or imposed in comparable cases.

Campbell, 538 U.S. at 418 (citing Gore, 517 U.S. at 575). The

court considers in turn these factors with respect to the instant

case.

I. Reprehensibility

“The most important indicum of reasonableness of a punitive

damages award is the degree of reprehensibility of the defendant’s

conduct.” Gore, 517 U.S. at 575. The Court in Campbell instructed

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17 In the context of discrimination claims under 42 U.S.C. 

§ 1981, given the public trust placed in officials, “[t]he redress

of racial, religious or gender discrimination has been treated as

a special area of public concern where affront to human rights may

require high punitives.” Id. (citing Zhang v. American Gem

Seafoods, Inc., 339 F.3d 1020, 1043 (9th Cir. 2003), cert. denied,

541 U.S. 902 (2004)). By analogy, cases brought under 42 U.S.C.

§ 1983 against public officials and which deal with the parentchild relationship and the deprivation of their civil rights may

also be a “special area of public concern,” especially where, as

25

courts to determine reprehensibility by considering whether

the harm caused was physical as opposed to economic; the

tortious conduct evinced an indifference to or a

reckless disregard of the health or safety of others;

the target of the conduct had financial vulnerability;

the conduct involved repeated actions or was an isolated

incident; and the harm was the result of intentional

malice, trickery, or deceit, or mere accident.

538 U.S. at 419 (citing Gore, 517 U.S. at 575); see also Bains LLC

v. ARCO Prods. Co., 405 F.3d 764, 775 (9th Cir. 2005)(explaining

Campbell “enumerates the factors to be used when evaluating the

reprehensibility of a defendant's conduct”). 

The existence of one factor in favor of a plaintiff does not

in itself support a finding of reprehensibility and, ultimately,

of a punitive damages award. Campbell, 538 U.S. at 419; see also

Planned Parenthood of the Columbia/Willamette, Inc. v. Am.

Coalition of Life Activists, 422 F.3d 949, 959-960 (9th Cir. 2005)

(finding defendant’s conduct “on the balance” was sufficiently

reprehensible to warrant punitive damages).

The Ninth Circuit has noted that neither Gore or Campbell

addressed the issue of reprehensible conduct by a public official.

S. Union Co. v. Southwest Gas Corp., 415 F.3d 1001, 1011 (9th Cir.

2005).17 Nevertheless, given the facts of this particular case,

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here, defendants repeatedly admitted that they have never obtained

a warrant to remove a child from his or her parents. TT at 220,

229, 240.

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the court finds that defendants’ conduct constituted sufficient

reprehensibility to warrant punitive damages.

The court firmly believes that the jury awarded punitive

damages because defendants’ actions “evinced an indifference to or

a reckless disregard of the health or safety of others” and that

the conduct at issue most likely “involved repeated actions.” In

addition to the trial testimony cited on pages 5-7 of this order,

see supra, Richard Leslie, a sergeant with the City of Stockton,

testified that the Police Chief Edward J. Chavez provided a written

policy on the removal of children from their home, which directs

officers to interview the reporting party, victim, parents or

guardians, the suspect, other persons who can contribute to the

child or family, and paramedics/ambulance personnel before removing

a child. TT at 238. Henderson failed to follow this department

protocol and interviewed none of these individuals removing

Crystal. TT at 105, 107, 110. 

Leslie also testified that he believed an “officer has a duty

to investigate surrounding circumstances to determine the

reliability of allegations” regarding sexual abuse against a

parent. TT at 243. The evidence at trial revealed that defendants

failed to appropriately investigate the circumstances before

removing Crystal. Henderson testified that she removed Crystal

based on “information she had,” on “some allegations against Dennis

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Keller in Officer Alverson’s report and based on CPS attachments,”

and that she did not independently determine the reliability of

such allegations. TT at 108-111. The record also suggests that

the reasons for removing Crystal were never clear to defendants,

much less made clear to plaintiffs. According to Dennis Keller,

Henderson stated to him on the phone at the time of his daughter’s

removal that the removal was prompted by his “breaking [his] court

ordered visitation with the mother.” TT at 291. Finally,

Henderson testified that the “decision to remove Crystal” was

ultimately made “at Debra Morie’s house,” suggesting that the

decision was not thoroughly contemplated. Indeed, the court

concludes that a jury could well conclude that the removal was an

arbitrary exercise of power. Put directly, a reasonable jury could

conclude that defendants’ conduct constituted an unreasonable

arrogation of power and that such actions demonstrated an

indifference to the health and safety of plaintiffs. Multiple

witnesses testified that plaintiffs were not made aware of the

removal in advance and that defendants did little to ameliorate the

difficult situation. Dennis Keller testified that he spoke to

Crystal when defendants were at Debra Morie’s house and that she

“was begging me and crying and screaming not to let the police take

her,” and that she was “totally afraid that [defendants] were going

to take her daddy away.” TT at 290. Dennis Keller also testified

that, as noted above, “all [he] was told” was that the removal was

due to his “breaking [his] court ordered visitation with the

mother,” not that defendants believed Crystal was in danger of

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18 As explained above, Campbell instructed courts to

determine reprehensibility by considering whether, inter alia, the

conduct involved repeated actions or was an isolated incident. 538

U.S. at 419.

19 Significantly, when the court questioned Sergeant Leslie

whether his officers were trained “that the Fourteenth Amendment

to the Constitution of the United States bears upon the question

of whether or not a child may be removed from his . . . or her

parents,” he jocularly answered, “Do we know there is a

Constitution?” TT at 249. It was not until the court admonished

Sergeant Leslie that the court did not ask the question in jest

that he responded that his officers were trained with such

knowledge. Such demeanor during trial, no doubt, supports the

jury’s conclusion that defendants demonstrated an indifference or

reckless disregard for plaintiffs’ rights in the removal of Crystal

28

sexual abuse, as defendants testified to during trial. TT at 291.

Debra Hamilton testified that Debra Morie, Crystal’s babysitter at

the time of her removal, was “hysterical,” “screaming and crying

into the phone” when Crystal was removed, and that at the time,

Dennis Keller “[d]idn’t know what his rights were.” TT at 256-257.

Crystal Keller testified that she “didn’t know what was going on”

when defendants came to remove her, and that she was “scared and

terrified” when Debra Morie told her she needed to go with

defendants. TT at 52. 

Finally, defendants testified that a warrant has “never” been

issued when the Stockton police department removed a child from his

or her home. Such a policy involves “repeated actions,” rather

than an isolated incident.18 Leslie testified that officers in

Stockton were not “trained to get warrants in these types of

cases,” and that in his twenty-two years in the Department,

defendants have “never” obtained a warrant to remove a child from

a home.19 TT at 239-240. Praegitzer similarly stated that he was

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not aware of any situation where an officer obtained a warrant to

remove a child. TT at 220. In Praegitzer’s experience, he had

“never” obtained a warrant to remove a child. TT at 229. 

Henderson testified that at the time of Crystal’s removal she “had

no experience” with “any requirement that a police officer obtain

a warrant to remove a child from the parents [sic] custody.” TT

at 113.

In sum, the record substantially supports that defendants’

conduct was sufficiently reprehensible, “the most important indicum

of reasonableness of a punitive damages award.” Gore, 517 U.S. at

575.

ii. Ratio

The “most commonly cited” consideration of a punitive damages

award is “its ratio to the actual harm inflicted on the plaintiff.”

Gore, 517 U.S. at 580. Punitive damages must bear a “reasonable

relationship” to compensatory damages. Id. In the instant case,

the punitive damages award for Crystal Keller bears a reasonable

relationship to the compensatory damages awarded her. The punitive

damages award for Dennis Keller, however, fails to satisfy due

process and must, indeed, be remitted.

The Supreme Court has consistently refused to impose a “bright

line ratio.” Campbell, 538 U.S. at 425. Despite the High Court’s

unwillingness to establish any sort of calculable formula for lower

courts to determine what ratios would be unacceptably high, the

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20 In Planned Parenthood of Columbia/Willamette Inc. v.

American Coalition of Life Activists, 422 F.3d 949, 962 (9th Cir.

2005), the Ninth Circuit held that the proper way to compute the

ratio between compensatory and punitive damages awards was to

“compar[e] each plaintiff's individual compensatory damages and

punitive damages awards as to each defendant.” “The compensatory

award to each plaintiff is the denominator in the ratio for each

defendant.” Id. at 960, n.6. See Transgo, Inc. v. Ajac

Transmission Parts Corp., 768 F.2d 1001, 1024-25 (9th Cir. 1985)

(basing denominator in ratio on the amount for which each defendant

is jointly and severally liable).

In the case at bar, because the jury verdict form did not

specify the amount for which each defendant is jointly and

severally liable in compensatory and punitive damages, the court

concludes that $500,000 is the amount for which defendants are

jointly and severally liable to Crystal Keller in compensatory

damages and that $1,000,000 is the amount for which defendants are

jointly and severally liable in punitive damages. In like manner,

$100,000 is the amount for which defendants are jointly and

severally liable to Dennis Keller in compensatory damages and

$1,000,000 is the amount for which defendants are liable to him in

punitive damages. The damages ratio for Crystal Keller is 2:1

based on this analysis, and the damages ratio for Dennis Keller is

10:1. 

30

Court has explained that “single digit multipliers are more likely

to comport with due process,” and that “in practice, few awards

exceeding a single-digit ratio between punitive and compensatory

damages . . . will satisfy due process.” Id. And when

“compensatory damages are substantial, then a lesser ratio, perhaps

only equal to compensatory damages, can reach the outermost limit

of the due process guarantee.” Id.

In the case at bar, the jury awarded Crystal Keller $500,000

in compensatory damages and $1,000,000 in punitive damages, a ratio

of 2:1 overall, which is certainly within the Constitutional limits

enunciated by the Supreme Court.20 The court finds that this

factor favors plaintiff Crystal Keller, and the court will not

disturb the jury’s punitive damages award based on this

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consideration. 

The punitive damages ratio for Dennis Keller, however is 10:1

overall, which fails Constitutional muster. As the court explained

to the parties during oral argument, the jury recognized the

distinction between the father’s loss and injury and the child’s

loss and injury when it awarded Crystal Keller $500,000 in

compensatory damages and $100,000 to Dennis Keller. That same

judgment, however, was not reflected in the punitive damages award.

Even considering all the inferences in favor of plaintiffs, it

still appears to the court that the punitive damages award for

Dennis Keller is excessive. 

If this court determines that the evidence supported liability

for Dennis Keller, which this court does, but determines that the

size of the award is excessive, the Ninth Circuit has held that the

court’s discretion is somewhat limited:

When the court, after viewing the evidence concerning

damages in a light most favorable to the prevailing

party, determines that the damages award is excessive,

it has two alternatives. It may grant defendant's motion

for a new trial or deny the motion conditional upon the

prevailing party accepting an remittitur. The prevailing

party is given the option of either submitting to a new

trial or of accepting a reduced amount of damage which

the court considers justified.

Fenner v. Dependable Trucking Co., 716 F.2d 598, 603 (9th Cir.

1983)(citing Linn v. United Plant Guard Workers, 383 U.S. 53,

65-66(1966); see also 6A James Wm. Moore, et al., Moore's Federal

Practice ¶ 59.08[4] at 59:126-27 (“it may be appropriate, where the

verdict is excessive, to order a new trial unless the claimant

remits a certain sum”). The proper amount of remittitur is the

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21 The court notes that the third factor to be considered in

assessing the reasonableness of a punitive damages award is the

disparity between the punitive damages award and civil penalties

imposed in comparable cases. Campbell, 538 U.S. at 428 (citing

Gore, 517 U.S. at 575). The court, however, has been unable to

locate similar cases where compensatory and punitive damages awards

were imposed. Defendants cite a number of police cases involving

illegal strip searches cases and police brutality, which the court

finds to be markedly different from the case at bar. Defs.' Mot.

at 18. Plaintiffs cite Franet v. County of Alameda Soc. Services

Agency, CO2-3787MJJ (N.D. Cal. 2006)(Jenkins, J.), a case in the

Northern District of California involving the removal of children

from the parents in Alameda County. There, the jury returned a

verdict of $1,220,000 against a social worker who removed two

children from their mother. Plaintiffs’ reliance on Franet,

however, is misplaced because the court ultimately struck the

jury’s punitive damages award because plaintiffs failed to tender

evidence that defendant was motivated by evil intent or reckless

or callous indifference to plaintiff’s rights. 

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maximum amount sustainable by the evidence. D&S Redi-Mix v. Sierra

Redi-Mix & Contracting Co., 692 F.2d 1245, 1249 (9th Cir. 1982).

Taking the evidence as a whole, the court deems $100,000 to

be the appropriate amount of punitive damages for Dennis Keller.

If he accepts the remittitur, the punitive damages for him will be

reduced to $100,000. If he does not accept the remittitur, a new

trial will be held limited to the question of a proper punitive

damages award.21

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III.

 CONCLUSION

Defendants’ motion for remittitur is GRANTED IN PART, and

DENIED IN PART as consistent with the order. All other motions

are DENIED.

IT IS SO ORDERED.

DATED: July 18, 2006.

Case 2:04-cv-01325-LKK -DAD Document 100 Filed 07/20/06 Page 33 of 33