MEILICKE v. Lee Baca, Defendant and Respondent.

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Court of Appeal, Second District, Division 1, California.

Richard MEILICKE, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Defendant and Appellant; Lee Baca, Defendant and Respondent.

No. B020736.

Decided: June 28, 1991

DeWitt W. Clinton, County Counsel, Owen L. Gallagher, Principal Deputy County Counsel, Los Angeles, Lascher & Lascher, Wendy C. Lascher and Susan B. Lascher, Ventura, for defendant and appellant and defendant and respondent. Laurence H. Tribe and Kenneth J. Chesebro, Cambridge, Mass., for plaintiff and appellant.

INTRODUCTION

Defendant County of Los Angeles appeals from a judgment in favor of plaintiff Richard Meilicke, also known as Richard Compton.1  Plaintiff appeals from an order granting a nonsuit in favor of defendants County of Los Angeles and Lee Baca on plaintiff's state law causes of action, from the judgment to the extent it does not include an award of prejudgment interest, and from an order denying his motion for prejudgment interest.2

STATEMENT OF FACTS

Background

In 1972, plaintiff purchased his boat, the Magnifico II (Magnifico), a 110–foot former naval vessel, from Anthony Sanucci;  title remained in Sanucci's name until plaintiff completed making payments on the boat on October 6, 1977.   Plaintiff restored and made significant improvements to the boat until it was elegant and luxurious and lived up to its name.   The boat was kept at a dock in Marina del Rey.

The Magnifico also was profitable.   Plaintiff initially used it to complement his retail scuba diving business, it was chartered by various businesses and it was used in the production of many movies and television shows.   In 1975, plaintiff created a recording studio aboard the boat;  it became well-known in the recording industry and was used for recording record albums and demonstration tapes.   The Magnifico also was used by many recording stars for private relaxation and pleasure.

Plaintiff began living aboard the Magnifico in 1973 and kept most of his clothing, personal effects and records on the boat.   When he married in early 1977, he also maintained a small apartment in Marina del Rey for use when the boat was chartered by others.

Sometime in 1977, plaintiff became involved in a dispute with the Nicoletti family regarding the Magnifico.   In early October, the Nicolettis attempted to take possession of the boat using forged documents from the Department of Motor Vehicles, but plaintiff was able to recover the boat from them with the help of the Los Angeles County Sheriff's Department.   Plaintiff attempted to transfer title to the boat to his mother-in-law, Anita Rexroat, in order to keep it from the Nicolettis, but they learned of his attempt and forced him to have Rexroat execute a preferred ship mortgage in favor of Nicolino Nicoletti on October 20.   It was stipulated the preferred ship mortgage was “invalid as having been obtained through coercion, the facts of which invalidity were not apparent on the face of the document.”

The November 10, 1977 Incident

On the morning of November 10, 1977, two Nicoletti brothers and their attorney, William Davis, came to the Marina del Rey substation of the Los Angeles County Sheriff's Department.   There they spoke to defendant Lieutenant Lee Baca, the operations commander, about their intent to repossess the Magnifico, handing him a package of documents which included a copy of the preferred ship mortgage, a notice of default, a Department of Transportation registration document and a handwritten agreement or declaration.   Attorney Davis explained the default was the failure to have the boat insured, and articles in the preferred ship mortgage gave Nicolino Nicoletti the right to repossess the boat.

Lieutenant Baca read the documents and concluded the preferred ship mortgage gave Nicoletti the right to repossess the boat.   While he was not sure Nicoletti actually was entitled to possession of the boat, he believed the document entitled him to possession.

Lieutenant Baca told the Nicolettis and Attorney Davis the dispute was civil in nature, so the Sheriff's Department could not become involved other than to keep the peace.   Attorney Davis indicated his clients wanted to place under citizen's arrest anyone who interfered with their attempt to repossess the boat.   Lieutenant Baca told them not to confront plaintiff or his guard on the boat in a hostile manner and suggested that any action should be taken with plaintiff's advance knowledge.

According to Lieutenant Baca, he then telephoned plaintiff, informed him of the Nicolettis' plans and suggested that plaintiff meet with the Nicolettis at his office in order to resolve their dispute peaceably.   Plaintiff said the Nicolettis were Mafia members and he feared them, but he nonetheless agreed to meet them at Lieutenant Baca's office that afternoon.   Plaintiff said nothing about the preferred ship mortgage having been obtained by coercion and the Nicolettis' previous attempt to obtain the Magnifico.   However, according to plaintiff, such a conversation never took place.

Lieutenant Baca sent Deputy Doyle Smith down to the dock to speak to the guard plaintiff had stationed on the Magnifico, Sandy Sanderson (Sanderson).   Lieutenant Baca told him that the clause in the preferred ship mortgage providing for repossession was valid, but repossession involved a potentially volatile situation.   He was to talk to Sanderson, show him the preferred ship mortgage and see if he could get cooperation from him.   Deputy Smith could not say what kind of cooperation he was seeking, but explained he was to make clear to Sanderson his option of leaving the boat and avoiding the possibility of being placed under citizen's arrest if he was perceived as trespassing by the person arresting him;  the deputy had determined the Nicolettis felt they now had ownership of the Magnifico and were capable of placing Sanderson under arrest.

Deputy Smith understood the role of the Sheriff's Department in civil disputes was not to take sides or enforce the demands of one side but to remain neutral and maintain the status quo.   The department's only duty was to make sure there was no breach of the peace.   When he went to the dock to speak to Sanderson, the Nicolettis were not there, so there was no threat of a breach of the peace, but he felt there was the potential for a disturbance at some point.   Deputy Smith read the preferred ship mortgage to Sanderson and explained that, according to the document, the ship had reverted to Nicolino Nicoletti.   The deputy advised Sanderson if he remained on the boat he could be put under citizen's arrest for trespassing.   Sanderson indicated he understood.

Sanderson telephoned plaintiff, who immediately came down to the Magnifico.   Deputy Smith told him the same things he had told Sanderson.   Plaintiff telephoned his attorney, Carleton Russell, for advice.   Attorney Russell told him federal law protected the boat from seizure under a preferred ship mortgage except by a federal marshal acting under court process, such as an arrest warrant, and he advised plaintiff to take the boat out to sea to avoid any attempted repossession.

At some point Deputy Smith apparently left the area.   Later, Sheriff's Deputy David Cowen, on patrol in his vehicle, heard a radio dispatch regarding a boat theft and proceeded to the dock where the Magnifico was located.   Some people by the dock—presumably the Nicolettis, though Deputy Cowen never asked their names—said their boat was being stolen.   Deputy Cowen went down onto the dock to the Magnifico, where plaintiff was preparing to take the boat out.   He told plaintiff to stop, but plaintiff did not.   He returned to his vehicle and called the dispatcher with the information the Magnifico was being taken out.   During this time, Deputy Smith returned to the scene.

Plaintiff took the Magnifico from the dock and attempted to leave the harbor and go out to sea.   Lieutenant Baca was notified, and he called the Harbor Patrol.   He first testified he told the Harbor Patrol the Magnifico should not leave the harbor because it was involved in an ownership dispute;  he was to meet plaintiff and the Nicolettis at the boat at 2:30 that afternoon.   He then indicated his understanding at the time of trial was that the Harbor Patrol initially intercepted the boat based on a grand theft call received by them;  he did not know who made the call.   Lieutenant Baca then testified he based his order that the boat not be allowed to leave the harbor on the grand theft call, in part.   He then denied that the Harbor Patrol intercepted the boat based on a civil dispute over ownership or because plaintiff was trying to evade process.   He then denied that he ordered that the boat not be allowed to leave the harbor but just mentioned it in response to a Harbor Patrol call.

Sergeant Thomas P. Sherrill and Officers Robert Alan Woolner and Oliver Ray White of the Harbor Patrol went out on a Harbor Patrol boat to intercept the Magnifico.   Sergeant Sherrill testified they went out after the Harbor Patrol received a call from the Sheriff's Department requesting backup regarding grand theft.   However, on his report and in his deposition he stated the backup request involved an ownership dispute.   Officer White testified the call was to intercept the boat and return it to the dock because it was trying to evade civil process;  the daily log indicated the call involved a registered owner dispute.

The three officers stopped or slowed the Magnifico and requested that plaintiff return the boat to the dock;  plaintiff refused to do so and continued going toward the sea.   They stopped him a second time, ordered him to return to the dock and threatened to board the boat and arrest him if he did not do so.   Plaintiff said he did not want to return because someone was trying to take his boat from him, and he was doing so under duress or protest;  he then turned the boat around and returned to the dock, escorted by the Harbor Patrol boat.   At the dock, the Harbor Patrol officers boarded the Magnifico.

A number of sheriff's deputies, including Deputies Smith and Cowen, were present at the dock when the Magnifico returned.   Deputy Cowen boarded the Magnifico and spoke to plaintiff, explaining he was investigating a possible boat theft.   He obtained identification and registration papers from plaintiff, and eventually determined there was no theft but merely a civil dispute over ownership.   About this time, plaintiff's wife, Dawn Roddenberry Compton, arrived and boarded the boat.   The Nicolettis arrived at the scene and began yelling threats at plaintiff and his wife, who yelled back at them.

Concerned that there might be some kind of confrontation, Deputy Cowen returned to his vehicle and called for a supervisor;  Lieutenant Baca responded, and Deputy Cowen left.   Plaintiff told Lieutenant Baca he wanted the Nicolettis arrested if they tried to board the Magnifico;  the Nicolettis told him they wanted plaintiff arrested because he was on the boat.   Lieutenant Baca testified he refused to take plaintiff into custody because of the ridiculousness of the situation.   However, he also testified he was obligated to take into custody any person upon whom a citizen's arrest was made, and the law did not give the Sheriff's Department discretion as to whether or not a person placed under citizen's arrest should be taken into custody.

Lieutenant Baca and Deputy Smith attempted to impress upon plaintiff the necessity of leaving the boat and going somewhere else to resolve the ownership question peaceably.   Plaintiff did not want to leave the boat, in that he was afraid the Nicolettis would try to take it.   However, he and his wife eventually were escorted off the boat by sheriff's deputies under threat of arrest for breach of the peace.   His guard, Sanderson, was taken off the boat in handcuffs.   The only person remaining on the boat was Sergeant Sherrill, who was instructed by his supervisor to provide security for the boat.

Plaintiff and Sanderson were driven by sheriff's deputies to the Marina del Rey substation, where Mrs. Compton joined them.   The Nicolettis and Attorney Davis also came to the substation.   According to Lieutenant Baca, the parties met and eventually agreed a guard hired by the Nicolettis would be posted on the boat until the dispute between them could be resolved by the court, and none of the parties would board the boat until the dispute was resolved;  however, there was no written agreement to that effect.   Plaintiff told him he was confident a court would decide the matter in his favor;  the lieutenant interpreted this statement to mean he agreed with the Nicolettis as to the posting of a guard until the matter was resolved by a court.   Plaintiff never told him he had personal items on the boat he wanted to remove.

Plaintiff denied any such agreement.   According to him, he attempted to explain the situation to Lieutenant Baca, including the circumstances under which the preferred ship mortgage had been obtained and the Nicolettis' previous attempt to take the Magnifico using forged documents, but Lieutenant Baca did not want to hear about it.   As far as Lieutenant Baca was concerned, the preferred ship mortgage said the Magnifico belonged to Nicolino Nicoletti, and if plaintiff wanted to do anything about the situation he should talk to his attorney.   Lieutenant Baca then told plaintiff he was not going to detain him at that time, but if he went back to the boat he would be arrested and jailed.   Plaintiff asked Lieutenant Baca to impound the boat, or to allow his own guard or someone from the Sheriff's Department to stay on the boat to protect his property, but the lieutenant said the Sheriff's Department did not do such things and refused.   Plaintiff and his wife were allowed to leave, and they did not return to the boat, even to recover their personal property on board.

Sergeant Sherrill remained on the Magnifico for 30 to 40 minutes after everyone left.   Then a security guard came on board and he left.   Sergeant Sherrill understood from Lieutenant Baca the guard was to remain on the boat until the court determined who was entitled to possession of it.

The Nicoletti Litigation

Plaintiff immediately brought suit against the Nicolettis, Attorney Davis and others.   He applied for a temporary restraining order and preliminary injunction to recover possession of the Magnifico, but the application was denied.   Subsequent requests for an order returning possession of the boat to plaintiff and an injunction to prevent the Nicolettis from moving the boat without first making necessary repairs and providing necessary maintenance also were denied.   However, the Nicolettis were enjoined from selling the Magnifico.   Ultimately, it was found the preferred ship mortgage was obtained by coercion and plaintiff was awarded over $3.76 million in damages for loss of the boat and his personal property and lost earnings.

The Aftermath

After November 10, 1977, the Nicolettis retained possession of the Magnifico until the State of California foreclosed a tax lien and took the boat to a boat yard, where it remained until July 8, 1980.   When plaintiff again was able to obtain possession sometime in 1980, the boat was a shambles:  the hull had not been maintained and had suffered extensive corrosion and worm damage, fittings and equipment had been removed or destroyed.   Additionally, most of plaintiff's personal possessions were gone.

As a result of losing the Magnifico, anger at the Sheriff's Department for failure to protect his property and at the litigation process necessary to obtain the boat's return, and having to move in with his mother-in-law while this was going on, plaintiff became severely depressed.   He also became obsessed with the litigation and his attempts to recover the boat.   When he finally was able to do so, he decided not to continue his business aboard the boat;  he sold boat and business for $55,000 plus a release of other litigation alleged to be worth over $400,000.

County Policy and Training

According to Lieutenant Baca, in a civil dispute or an attempted repossession the Sheriff's Department functions in an impartial manner, does not take sides and does not decide who is right and who is wrong.   Its policy is simply to keep the peace and enforce the criminal laws.   He acknowledged plaintiff was not arrested for breach of the peace because he quieted down when the lieutenant told him to.

A Sheriff's Department training guide stated that in order to complete repossession, a repossessor must be able to exercise complete dominion and control over the property;  the repossessor cannot effect repossession if the owner is in personal possession of the property.   If the owner is in possession and objects to the repossession, the repossessor cannot effect repossession and must go to court to seek repossession.

Policy also allowed, and Lieutenant Baca was trained to understand, that parties could legally agree to waive certain rights.   A party could agree to allow repossession over his or her objections and thereby waive “due process.”   In his opinion, plaintiff had waived his due process rights in the preferred ship mortgage, so Nicolino Nicoletti did not have to obtain a court order to enforce his rights under the mortgage.   Therefore, even though plaintiff objected to repossession by Nicoletti, Lieutenant Baca believed plaintiff's waiver of his due process rights in the preferred ship mortgage gave Nicoletti the right to repossess and board the Magnifico while plaintiff was on the boat and to arrest him for trespassing.   Training guide notwithstanding, Lieutenant Baca believed Sheriff's Department policy did not require him to advise Nicoletti to go to court to effect repossession once plaintiff objected.

The lieutenant acknowledged the Sheriff's Department policy manual contained no policies or procedures relative to civil disputes and repossessions.   He also had no document or bulletin which changed the guidelines in the training manual that if a person objects to repossession, the repossessor cannot take the property.

Lieutenant Baca had received some training with respect to civil repossessions, but none with respect to enforcement of preferred ship mortgages.   He did not understand the difference between federally-documented and state-registered vessels.

PROCEDURAL BACKGROUND

Plaintiff brought this action on October 30, 1978 for deprivation of his property without due process of law, violation of his civil rights within the meaning of 42 United States Code section 1983, trespass and false arrest.   Trial was bifurcated, with liability issues to be tried before damages.   During trial of liability issues, defendants were granted a nonsuit as to plaintiff's state law claims on the ground of immunity.   On June 28, 1984, a mistrial was declared when the jury was unable to reach a verdict.   The parties agreed to waive a jury, and the trial court found in favor of plaintiff and against the county, and in favor of Lieutenant Baca and against plaintiff, on the issue of liability.

Trial then was held on the damages issue.   On July 2, 1985, defendant county requested a statement of decision as to the liability determination.   The trial court issued a tentative decision covering both liability and damages issues but denied the request for a statement of decision insofar as it requested explanation beyond those set forth in the tentative decision.   Defendant county filed another request for a statement of decision, requesting findings on issues of liability and damages.   Again, it was denied except as to those issues already addressed in the tentative decision.   Defendant county then filed a notice of the court's failure to resolve controverted issues or ambiguities in the tentative decision.

Plaintiff moved to have prejudgment interest inserted in the judgment.   This motion was denied without prejudice.   Plaintiff renewed it, but it again was denied.   Shortly thereafter, judgment was entered;  the judgment addressed both liability and damages.

The damages awarded included $3 million for the Magnifico and $516,063 for plaintiff's personal property aboard the boat.   The trial court awarded lost profits of $2,483,292 from November 10, 1977 through May 29, 1985, and continuing at $901.36 per day until paid.   It also awarded $42,529 for the expenses plaintiff incurred in attempting to recover the Magnifico and $750,000 as general damages for emotional distress and physical and mental suffering.

CONTENTIONS

Defendant's AppealI

Defendant County of Los Angeles contends its failure to adopt a policy concerning preferred ship mortgages did not violate plaintiff's constitutional rights and support a judgment of liability under 42 United States Code section 1983.

II

Defendant further contends plaintiff's losses were not caused by the actions of its Sheriff's Department.

III

Defendant finally asserts the damage award must be reversed, in that it includes improper elements and violates controlling principles.

Plaintiff's Cross–Appeal

IV

Plaintiff contends the trial court's failure to award any prejudgment interest should be taken into account in scrutinizing the damage award and on any remand.

Plaintiff's Appeal

V

Plaintiff asserts the trial court erred in granting defendant Lee Baca qualified official immunity under 42 United States Code section 1983.

VI

Plaintiff additionally asserts the trial court erred in granting defendants immunity under the California Tort Claims Act.

DISCUSSION

IDefendant's Appeal

Defendant County of Los Angeles contends its failure to adopt a policy concerning preferred ship mortgages did not violate plaintiff's constitutional rights and support a judgment of liability under 42 United States Code section 1983.   We disagree.

Preliminarily, we address the propriety of the trial court's denial of defendant's request for a statement of decision.   Although defendant makes no contention as to this issue, it is discussed in the parties' briefs and the lack of a statement of decision affects this court's review of the facts.

Pursuant to section 632 of the Code of Civil Procedure, a statement of decision is required only on request of a party made within 10 days after the announcement of a tentative decision.  Rule 232 of the California Rules of Court prescribes the procedures for announcing a tentative decision and issuing a statement of decision.   Rule 232.5 provides:  “When a factual issue raised by the pleadings is tried by the court separately and prior to the trial of other issues, the judge conducting the separate trial shall announce the tentative decision on the issue so tried and shall, when requested pursuant to Code of Civil Procedure section 632, issue a statement of decision as prescribed in rule 232;  but no proposed judgment shall be prepared until the other issues are tried․”

 Pursuant to the foregoing, when trial is bifurcated and a tentative decision announced as to the first issue to be tried, a statement of decision as to that issue must be requested within 10 days thereafter.   A party cannot wait for the remaining issues to be tried then, upon the trial court's issuance of a tentative decision covering those issues, request a statement of decision as to all issues tried.

Here, the trial court made findings on the liability issues on June 28, 1984.   Defendant did not request a statement of decision until the court announced its tentative decision on all issues following trial of the damages issues, on July 2, 1985.   The request was not timely, therefore the trial court was not required to issue a statement of decision on the liability issues.

 Where there is no statement of decision, the appellate court must assume the trial court found every fact necessary to support the judgment.   (Noguchi v. Civil Service Com. (1986) 187 Cal.App.3d 1521, 1536, 232 Cal.Rptr. 394;  Golde v. Fox (1979) 98 Cal.App.3d 167, 174, 159 Cal.Rptr. 864.)   We will search the record only to determine whether the judgment is supported by substantial evidence.  (Noguchi, supra, 187 Cal.App.3d at p. 1536, 232 Cal.Rptr. 394;  Golde, supra, 98 Cal.App.3d at p. 174, 159 Cal.Rptr. 864.)

 Turning now to the issue of liability, 42 United States Code section 1983 (hereinafter section 1983) provides:  “Every person who, under color of any statute, ordinance, regulation, custom, or usage ․ subjects, or causes to be subjected, any citizen ․ to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured․”  A municipality can be held liable under section 1983 only where the municipality itself causes a violation of the plaintiff's federal constitutional rights.  (Canton v. Harris (1989) 489 U.S. 378, 385, 109 S.Ct. 1197, 1203, 103 L.Ed.2d 412.)   This occurs “when the ‘execution of the government's policy or custom ․ inflicts the injury.’ ”  (Ibid.)  There must be a direct causal connection between the municipality's policy or custom and the violation.  (Ibid.)  And unlike the situation where liability is sought to be imposed on the municipality's employees, there is no qualified immunity available to the municipality based on its good faith.  (Owen v. City of Independence (1980) 445 U.S. 622, 649–650, 100 S.Ct. 1398, 1414–1415, 63 L.Ed.2d 673;  Novick v. City of Los Angeles (1983) 148 Cal.App.3d 325, 331, 195 Cal.Rptr. 747.)

 Even if the policy itself is not unconstitutional, a municipality may be held liable if its failure to train its employees or inadequate training of its employees as to the application of the policy results in a constitutional violation.  (Canton v. Harris, supra, 489 U.S. at p. 387, 109 S.Ct. at p. 1203.)   However, liability may be imposed “only where the failure to train amounts to deliberate indifference to the rights of persons with whom the [employees] come into contact.”  (Id. at p. 388, 109 S.Ct. at p. 1204, fn. omitted.)   Since liability can be imposed only where the municipality's policies are the “ ‘moving force [behind] the constitutional violation,’ ” only a “ ‘deliberate indifference’ ” standard applied to a failure to train will elevate the municipality's shortcoming to “ ‘policy or custom.’ ”  (Id. at p. 389, 109 S.Ct. at p. 1205.)   The municipality must have made a deliberate or conscious choice to follow a particular alternative in order to be held liable.  (Ibid.)

While it may seem unlikely a municipality would have a policy of not taking reasonable steps to train its employees, “it may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the [municipality] can reasonably be said to have been deliberately indifferent to the need.”   (Canton v. Harris, supra, 489 U.S. at p. 390, 109 S.Ct. at p. 1205, fn. omitted.)   In such a case, the failure to provide adequate training may be said to represent a policy for which the municipality is responsible and may be held liable if it causes injury.  (Ibid.)

 The adequacy of the municipality's training must be evaluated in light of the tasks assigned to the employee.  (Canton v. Harris, supra, 489 U.S. at p. 390, 109 S.Ct. at p. 1205.)   Liability will attach only where the injury would have been avoided had the employee been properly trained.  (Id. at p. 391, 109 S.Ct. at p. 1206.)

It may be noted that while Canton v. Harris, supra, speaks of constitutional rights, section 1983 also applies to rights secured by federal statutory law.  (Maine v. Thiboutot (1980) 448 U.S. 1, 4–8, 100 S.Ct. 2502, 2504–2506, 65 L.Ed.2d 555.)   And the principles enunciated in Canton apply to counties as well as municipalities.  (See Polk County v. Dodson (1981) 454 U.S. 312, 326, 102 S.Ct. 445, 454, 70 L.Ed.2d 509;  Merritt v. County of Los Angeles (9th Cir.1989) 875 F.2d 765, 769.)

Here, the parties are in disagreement over whether this is an illegal policy case or a failure to train case.   While defendant frames its contention in terms of failure to adopt a policy concerning preferred ship mortgages, it argues it should not be held liable under section 1983 for its failure to train its deputies concerning preferred ship mortgages.   Plaintiff insists this is not a failure to train or failure to adopt a policy case but a case of unlawful policy.

The trial court found “that while Los Angeles [County] Sheriff's Department trains its officers and has a policy generally with respect to the rights of those involved in mortgage transactions and generally with respect to their conduct when responding to scenes of civil disputes, and generally with respect to how to handle repossessions and disputes arising therefrom, nevertheless, their training with respect to the handling of such disputes arising from enforcement of preferred ships mortgages and with respect to Admiralty Law was either nonexistent, or so inadequate as to amount to the Los Angeles County Sheriff's Department's having no understandable policy as to such matters.”

“In a situation such as presented here, where the Sheriff's Officers and Harbor Patrol Officers would have to have such information because of their assignment and duty at Marina del Rey, this lack of policy led directly to the deprivation of the property of the plaintiff, and thus, to a violation of his constitutional rights.   The Los Angeles County Sheriff's Department knew, or should have known that such results could occur in the absence of a definite and understandable policy.”

The foregoing shows the trial court found both a lack of training and a lack of policy regarding repossession under preferred ship mortgages.   However, the lack of training resulted from the lack of policy.   Thus, this is not a failure to train case, but a case either of a policy which may violate federal statutory law, or of a lack of policy which may “amount[ ] to deliberate indifference to the rights of persons with whom the [sheriff's deputies] come into contact” (Canton v. Harris, supra, 489 U.S. at pp. 385, 388, 109 S.Ct. at pp. 1203, 1204), which resulted in the deprivation of plaintiff's federal statutory rights.

It is admitted the Sheriff's Department had no specific policy regarding repossessions under preferred ship mortgages.   Its policy was to treat all civil repossessions alike:  The Sheriff's Department was to function in an impartial manner, not taking sides or determining who was right or wrong, but merely ensuring no breach of the peace took place.   Generally, repossessions could not be effected if the owner was in personal possession of the property and objected to repossession.   However, Lieutenant Baca testified, policy allowed that if the parties agreed to waive their due process rights, repossession could be effected even over the owner's objection.

It is clear to us defendant did have a policy to permit self-help in civil repossessions if the parties waived due process rights and that policy was applied here.   The deputies' main goal in the actions they took was to prevent a breach of the peace, but Lieutenant Baca's handling of the situation was colored by his belief plaintiff had waived his due process rights and Nicolino Nicoletti therefore was entitled to immediate possession of the Magnifico, even over plaintiff's objection.   There being a policy, the question is whether there is substantial evidence to support the conclusion this policy violated plaintiff's federal statutory rights.  (Canton v. Harris, supra, 489 U.S. at p. 385, 109 S.Ct. at p. 1203.)

The rights at issue are those contained within the Ship Mortgage Act of 1920 (46 U.S.C. § 911 et seq.,3 hereinafter Ship Mortgage Act or Act), which governs preferred ship mortgages (Bank of America Nat. Trust and Sav. Ass'n v. Fogle (N.D.Cal.1985) 637 F.Supp. 305, 306).   The Act provides in pertinent part:  “A preferred mortgage shall constitute a lien upon the mortgaged vessel in the amount of the outstanding mortgage indebtedness secured by such vessel.   Upon the default of any term or condition of the mortgage, such lien may be enforced by the mortgagee by suit in rem in admiralty.   Original jurisdiction of all such suits is granted to the district courts of the United States exclusively․”  (46 U.S.C. § 951.)

Plaintiff insists this language makes it perfectly clear the mortgagee under a preferred ship mortgage cannot take advantage of self-help repossession upon default, but may only enforce the lien through a suit in rem in admiralty in federal court.   Therefore, plaintiff claims, defendant's policy which “authorized police actions that afforded legitimacy to the self-help repossessor” is unlawful and provides a basis for imposition of liability on defendant under section 1983.

The language of the Ship Mortgage Act is not that clear, as evidenced by the different conclusions as to its meaning reached by various courts.   In J. Ray McDermott & Co., Inc. v. Vessel Morning Star (5th Cir.1972) 457 F.2d 815, certiorari denied 409 U.S. 948, 93 S.Ct. 271, 34 L.Ed.2d 218, it was noted the purpose of the Ship Mortgage Act was to provide a uniform body of maritime law.  (At p. 817.)   Where there were gaps in the law, state law could be employed, but it could not be employed to contravene the Act or disrupt the uniformity the Act sought to bring.  (Id. at p. 818.)  Bank of America Nat. Trust and Sav. Ass'n v. Fogle, supra, 637 F.Supp. 305 similarly held the Ship Mortgage Act applies to all foreclosures on preferred ship mortgages, and a suit to foreclose must be brought in federal court.  (At p. 306.)   It further held the parties to a preferred ship mortgage could not reserve rights in conflict with the provisions of the Act.  (Id. at p. 307.)   However, Price v. Seattle–First Nat. Bank (W.D.Wash.1983) 582 F.Supp. 1568, 1569–1570 suggested that while the Ship Mortgage Act granted exclusive jurisdiction to the federal courts with respect to preferred ship mortgages, parties to such mortgages could provide for additional contract remedies to those available through the Act, including self-help provisions enforceable in state court.

In Dietrich v. Key Bank, N.A. (S.D.Fla.1988) 693 F.Supp. 1112, the issue was whether the Ship Mortgage Act permits parties to a preferred ship mortgage to contractually agree the mortgagee may use state-law self-help procedures to repossess the vessel.  (At p. 1114.)   The court noted that in Challenger, Inc. v. Durno (5th Cir.1956) 227 F.2d 918, it was found such an option was available to the mortgagee.  (Dietrich, supra, at p. 1115.)   Dietrich held McDermott did not overrule Challenger, in that it did not involve a contractual agreement between the parties to allow state-law remedies.  (Id. at p. 1116.)   The court concluded state-law self-help was permissible by agreement, based on Challenger and declining to follow Fogle.  (Id. at pp. 1116, 1117.)   However, in Nate Leasing Co., Inc. v. Wiggins (1990) 114 Wash. 2d 508, 789 P.2d 89, it was concluded that given the history and purpose of the Ship Mortgage Act, Fogle appeared to be better reasoned than Dietrich, and the Act allows no room for state law in foreclosure on a preferred ship mortgage.  (789 P.2d at pp. 94–95.)

It may be noted Challenger, Inc. v. Durno, supra, 227 F.2d 918, on which Dietrich relied, did not discuss or analyze the question whether the Ship Mortgage Act allowed state-law self-help procedures to repossess a vessel subject to a preferred ship mortgage.  Challenger simply stated that the mortgagee could effect a private foreclosure or foreclosure under the preferred ship mortgage.  (At p. 922.)

In Fogle, plaintiff conceded the Ship Mortgage Act controlled foreclosure on a preferred ship mortgage but contended the Act was silent as to whether mortgagees could conduct private foreclosure sales, therefore a mortgagee was free to contractually reserve the right to do so.  (Bank of America Nat. Trust and Sav. Ass'n v. Fogle, supra, 637 F.Supp. at pp. 306–307.)   The court noted the Act made provision for judicially-approved private sales.  (Id. at p. 307.)   It concluded, by providing a specific, detailed procedure for doing so, the statute was hardly silent on the question, and “Congress obviously meant to disapprove of extrajudicial private sales.   There is, therefore, ‘simply no room for the operation of state law’ on the issue of whether extrajudicial private sales are permissible.”  (Ibid.)  Thus plaintiff had no right to conduct a private foreclosure sale pursuant to state law.  (Ibid.)

Nate Leasing Co., Inc. v. Wiggins, supra, 789 P.2d 89, in analyzing Dietrich and Fogle, first discussed the history of the Ship Mortgage Act.   Citing J. Ray McDermott & Co., Inc. v. Vessel Morning Star, supra, 457 F.2d at pages 817–818, the court noted prior to the enactment of the Ship Mortgage Act, ship mortgages could not be foreclosed in admiralty and so were “practically worthless.”  (Nate Leasing Co., Inc., supra, at p. 91.)   In order to promote the merchant marine and encourage shipping, the Act was passed;  it gave preferred status to mortgagees and brought foreclosure on preferred ship mortgages within the admiralty jurisdiction of the federal courts.  (Ibid.)  It was the intent of the drafters to provide speedy and uniform procedures for foreclosure, so “ ‘the Act would wholly and completely supersede state law and practice in every respect.’ ”  (Ibid., quoting from J. Ray McDermott & Co., Inc., supra, at p. 818.)

With this history as a backdrop, the court addressed the question whether the Ship Mortgage Act allowed “[t]he utilization of state law self-help procedures to take possession of and sell a ship covered by a preferred ship mortgage” (Nate Leasing Co., Inc. v. Wiggins, supra, 789 P.2d at p. 92).   The court found only four cases dealing with the question.   One was Price v. Seattle–First Nat. Bank, supra, 582 F.Supp. 1568, two others were Fogle and Dietrich.   The fourth was Brown v. Baker (Alaska 1984) 688 P.2d 943, in which “the court found that, because the vessel was voluntarily returned to the mortgagee after default, there was ‘no foreclosure action and therefore the Ship Mortgage Act [was] inapplicable.’ ”  (Nate Leasing Co., Inc., supra, at pp. 92, 93, emphasis omitted.)   In the view of the court in Nate Leasing Co., Inc., the Alaska court in Brown “seem[ed] to be saying that parties who avail themselves of the protection of a preferred ship mortgage may nonetheless render the statute inapplicable simply by choosing not to follow the procedures set forth in the statute.”  (Id. at p. 93.)

The four cases cited varied in reasoning and result.   Of the four, the court found Fogle the best reasoned, relying on the strong statements in J. Ray McDermott & Co., Inc. v. Vessel Morning Star, supra, 457 F.2d 815 regarding congressional intent that the Ship Mortgage Act provide uniform procedures for foreclosure on vessels subject to preferred ship mortgages.  (Nate Leasing Co., Inc. v. Wiggins, supra, 789 P.2d at pp. 94–95.)   Thus, the court concluded there was no room for state law in the foreclosure of a preferred ship mortgage but the Ship Mortgage Act provided the exclusive remedy.  (Id. at p. 95.)

 We agree with both the reasoning and holding of Nate Leasing Co., Inc. v. Wiggins, supra, 789 P.2d 89.   Allowing parties to a preferred ship mortgage to reserve rights under state law defeats the purpose of the Ship Mortgage Act—to provide for exclusive jurisdiction of the admiralty court and uniform procedures for foreclosure proceedings.   We further conclude this reasoning applies not only to foreclosures under state law, but to self-help repossession as well.   Allowing such actions would also defeat the goal of having uniform procedures on which the parties to a preferred ship mortgage—or their successors in interest—can rely in the event of a default.

 Accordingly, in this case, Nicolino Nicoletti had no right to take advantage of self-help repossession upon any default in the terms of the preferred ship mortgage on the Magnifico.   Plaintiff had the federal statutory right not to have the boat taken from him unless the procedures set forth in the Ship Mortgage Act were complied with, which did not occur.   Therefore, defendant's policy, which enabled Nicoletti to obtain immediate possession of the Magnifico over plaintiff's objection without having him go through “due process,” violated plaintiff's federal statutory rights.   This being the case, defendant may be held liable for the violation under section 1983.  (Canton v. Harris, supra, 489 U.S. at p. 385, 109 S.Ct. at p. 1203.)

Defendant claims there cannot be anything unlawful about a policy of keeping the peace in the same manner, regardless of the type of property in dispute, and it cannot be faulted for refusing to ignore a potentially violent confrontation over a preferred ship mortgage.   If defendant's policy were simply to keep the peace, this claim would have merit.   However, defendant's policy, and the actions taken to effect it, went beyond mere peacekeeping.   The policy included assisting in self-help repossessions where it was determined one party to the mortgage had waived “due process” and the right to object to the repossession.   In the case of a preferred ship mortgage, such a waiver is not valid and there is no right to self-help repossession.   But here the waiver was given effect and defendant's employees assisted in the self-help repossession by forcing plaintiff to bring the Magnifico back to the dock, by forcing him and his security guard off the boat, and by allowing the Nicolettis to place their guard on the boat and refusing to allow plaintiff or his wife to return to the boat.   Since defendant's policy and actions went beyond mere peacekeeping, it cannot escape liability.

Defendant further claims it cannot be held liable under section 1983 for merely enforcing state law regarding keeping the peace in civil disputes, citing, following oral argument, Surplus Stove and Exchange, Inc. v. City of Delphi (7th Cir.1991) 928 F.2d 788, 791–792.   Again, since defendant's policy and actions went beyondpeacekeeping, defendant was not merely enforcing state law.   Moreover, as plaintiff points out, a county may be found liable under section 1983 for merely enforcing state law where to do so violates federal constitutional or statutory rights.  (See Howlett by and Through Howlett v. Rose (1990) 496 U.S. 356, ––––, 110 S.Ct. 2430, 2443, 110 L.Ed.2d 332;  Evers v. County of Custer (9th Cir.1984) 745 F.2d 1196, 1203.)

Defendant also suggests, in any event, plaintiff cannot claim on appeal this is an unlawful policy case, in that plaintiff claimed at trial it was a failure to train case.   However, the record shows plaintiff argued both theories to the jury.   The parties also cite various parts of the record in support of their claims this is or is not a failure to train or unlawful policy case.   The informal statements by the trial court on which they rely are not the judgment and cannot be used to contradict or “interpret” an unambiguous judgment.  (7 Witkin, Cal.Procedure (3d ed. 1985) Judgment, § 5, pp. 455–456;  9 Witkin, Cal.Procedure, supra, Appeal, § 264, p. 271.)   The judgment is clear the trial court found a “lack of policy [which] led directly to the deprivation of the property of the plaintiff, and thus, to a violation of his constitutional rights.”   It also found a lack of or inadequate training, but that lack or inadequacy was simply a result of the lack of policy.   Inasmuch as the judgment is clear, the trial court's informal statements cannot be used to contradict or explain it.

II

Defendant further contends plaintiff's losses were not caused by the actions of its Sheriff's Department.   Again, we disagree.

Defendant first argues that even if its deputies had been properly trained regarding preferred ship mortgages, they would have taken the same actions in order to prevent a breach of the peace;  therefore, any deficiencies in the training did not cause plaintiff's injuries.  (Canton v. Harris, supra, 489 U.S. at p. 385, 109 S.Ct. at p. 1203).   As discussed in part I, ante, this case cannot be treated simply as a failure to train case but must be viewed as a case involving an unlawful policy.   Additionally, the actions of the deputies were designed not only to prevent a breach of the peace but also to assist Nicolino Nicoletti in repossessing the Magnifico.

If defendant's policy on repossessions had recognized that there can be no self-help repossession under a preferred ship mortgage but the mortgagee must seek relief in the admiralty court, and if defendant's training of its deputies reflected this policy, it is reasonable to conclude the deputies would not have had the Harbor Patrol bring plaintiff back to the dock when he sought to take the Magnifico out to sea to avoid the attempted repossession.   Neither would they have forced defendant and his security guard off the boat or refused to allow defendant and his wife to return to the boat and allowed the Nicolettis to place their security guard on the boat once the meeting with the Nicolettis had taken place.   Had they not taken the foregoing actions, plaintiff would have retained possession of the Magnifico and avoided his injuries.

 Defendant next argues the judicial determination in the action plaintiff brought against the Nicolettis that plaintiff was not entitled to possession of the Magnifico, when the court in December 1977 denied plaintiff a temporary restraining order and preliminary injunction transferring possession back to him, cut off any potential liability of defendant.   Citing Novick v. City of Los Angeles, supra, 148 Cal.App.3d at pages 332–333, 195 Cal.Rptr. 747, defendant claims the court's independent exercise of its judgment severed the chain of causation between any section 1983 violation and any subsequent damage to the Magnifico.

However, Novick is distinguishable.   In Novick, the section 1983 violation was an illegal search by police officers and the injury was the filing of criminal charges by the city prosecutor.   The court concluded the chain of causation between the two was severed by the exercise of the prosecutor's independent judgment in deciding to file the criminal charges.   (Novick v. City of Los Angeles, supra, 148 Cal.App.3d at pp. 332–333, 195 Cal.Rptr. 747.)   Here, by contrast, the exercise of the court's independent judgment in the Nicoletti action did not cause plaintiff's injury but merely failed to prevent exacerbation of an injury which already had occurred.   Defendant does not argue this type of failure breaks the chain of causation.

 Defendant finally claims it cannot be held responsible for damages caused by the unforeseeable acts and omissions of third parties—the Nicolettis.   No special relationship existed between it and plaintiff requiring it to protect plaintiff's property against damage by the Nicolettis, and it cannot be held liable for damage and deterioration occurring a significant period of time after the acts upon which its liability was based.

One may be held liable if his conduct is “a substantial factor in causing an injury, and he is not relieved of liability because of the intervening act of a third person if such act was reasonably foreseeable at the time of his ․ conduct.  [Citation.]  Moreover, if the likelihood that a third person may act in a particular manner, whether innocent, negligent, intentionally tortious, or even criminal, is one of the hazards which makes the actor” conduct wrongful,] the actor will remain liable for the harm caused by that [conduct].  [Citation.]”  (Earp v. Nobmann (1981) 122 Cal.App.3d 270, 292–293, 175 Cal.Rptr. 767, disapproved on other grounds in Silberg v. Anderson (1990) 50 Cal.3d 205, 219, 266 Cal.Rptr. 638, 786 P.2d 365;  accord, Vesely v. Sager (1971) 5 Cal.3d 153, 163, 95 Cal.Rptr. 623, 486 P.2d 151.)

Here, plaintiff told Lieutenant Baca the Nicolettis were criminals, they previously had attempted to take the Magnifico from him using forged documents and they had obtained the preferred ship mortgage through coercion.   He also said he had personal property on the boat for which he wanted protection.   Under these circumstances it was reasonably foreseeable the Nicolettis would convert, damage or destroy the boat and plaintiff's other property if given the opportunity to do so.   Moreover, the only reason the Nicolettis were able to do so was through Lieutenant Baca's conduct;  had he allowed plaintiff to remove the boat from danger, the Nicolettis would not have been able to take possession of the boat.   Accordingly, defendant may be held liable for the damage to the boat and plaintiff's property by the Nicolettis.   (Earp v. Nobmann, supra, 122 Cal.App.3d at pp. 292–293, 175 Cal.Rptr. 767.)

 As to the deterioration of the Magnifico occurring while the Nicolettis were in possession of the boat, it is fundamental an injured party should be compensated for all damage proximately caused by a wrongdoer.   (Curlender v. Bio–Science Laboratories (1980) 106 Cal.App.3d 811, 830, 165 Cal.Rptr. 477.)   Damage proximately caused by a wrongdoer may include damage caused by the elements.  (See Poulsen v. Charlton (1964) 224 Cal.App.2d 262, 270, 36 Cal.Rptr. 347.)   Defendant's actions allowed the Nicolettis to take the Magnifico from plaintiff and prevented plaintiff from having the necessary maintenance performed, which in turn allowed the boat to deteriorate due to exposure to the elements.   Defendant cites no authority to support its argument this deterioration was not proximately caused by the actions of its sheriff's deputies.   Accordingly, defendant properly was held liable for this damage.  (See People v. Dougherty (1982) 138 Cal.App.3d 278, 282–283, 188 Cal.Rptr. 123.)

III

Defendant finally asserts the damage award must be reversed, in that it includes improper elements and violates controlling principles.   While the assertion has some merit, defendant has not demonstrated entitlement to relief.

 The level of damages to be awarded in a section 1983 action is determined according to common law principles, which are designed to provide “ ‘compensation for the injury caused to plaintiff by defendant's breach of duty.’ ”  (Memphis Community School Dist. v. Stachura (1986) 477 U.S. 299, 306, 106 S.Ct. 2537, 2542, 91 L.Ed.2d 249, emphasis omitted.)   Compensation for the injury is the key to determining whether the level or an element of damages is appropriate.  (Id. at p. 307, 106 S.Ct. at p. 2543.)   This compensation may include out-of-pocket expenses, other monetary damages, and damages for mental anguish and suffering.  (Ibid.)

 In making the determination as to the damages to be awarded a plaintiff pursuant to section 1983, the court should look first to federal law and, if necessary, then to state law.  (Gilmere v. City of Atlanta, Ga. (11th Cir.1989) 864 F.2d 734, 738–739, cert. den. 493 U.S. 817, 110 S.Ct. 70, 107 L.Ed.2d 37;  see 42 U.S.C. § 1988.)   The key to deciding which law to apply is determining which law will better serve the policy expressed in section 1983 of compensating the plaintiff for the actual injuries suffered.  (Gilmere, supra, at p. 739.)

Defendant challenges the award of damages here in several aspects.   First, it contends the judgment in plaintiff's action against the Nicolettis collaterally estops plaintiff from obtaining a higher award against it in this action.   Plaintiff claims defendant waived this contention by failing to raise the issue below.   However, the record shows the trial court took judicial notice of the proceedings in the Nicoletti action, and defendant argued its collateral estoppel theory to the trial court.   Accordingly, the contention is not waived for failure to raise it below.  (See Dimmick v. Dimmick (1962) 58 Cal.2d 417, 422–423, 24 Cal.Rptr. 856, 374 P.2d 824.)

 Collateral estoppel bars relitigation of all factual issues actually litigated and necessarily decided in prior litigation.   (Alhino v. Starr (1980) 112 Cal.App.3d 158, 170, 169 Cal.Rptr. 136;  Americana Fabrics, Inc. v. L. & L. Textiles, Inc. (9th Cir.1985) 754 F.2d 1524, 1529.)   It may be applied if the issues decided in the prior adjudication are identical to those raised in the present action, there was a final judgment on the merits in the prior adjudication, and the party against whom the doctrine is sought to be applied was a party to the prior adjudication.  (Clemente v. State of California (1985) 40 Cal.3d 202, 222, 219 Cal.Rptr. 445, 707 P.2d 818.)   It also may be applied to a section 1983 action.  (Allen v. McCurry (1980) 449 U.S. 90, 96–105, 101 S.Ct. 411, 415–421, 66 L.Ed.2d 308;  Novick v. City of Los Angeles, supra, 148 Cal.App.3d at p. 331, 195 Cal.Rptr. 747.)

 If an issue decided in the Nicoletti action was the extent of plaintiff's damages resulting from the loss of the Magnifico and the extent of the damage to the Magnifico itself, and this same issue arose in the instant action, the issues are identical.   One of the issues to which collateral estoppel may be applied is the extent of damages.  (Klinell v. Shirey (1963) 223 Cal.App.2d 239, 244, 35 Cal.Rptr. 901;  see, e.g., Ellena v. State of California (1977) 69 Cal.App.3d 245, 254, 138 Cal.Rptr. 110.)

 The parties originally characterized the judgment in the Nicoletti action as a default judgment.4  For the purpose of applying collateral estoppel, it is a final judgment on the merits.  (Kahn v. Kahn (1977) 68 Cal.App.3d 372, 382, 137 Cal.Rptr. 332;  Martin v. General Finance Co. (1966) 239 Cal.App.2d 438, 443, 48 Cal.Rptr. 773.)   A default judgment “ ‘is as conclusive as to the issues tendered by the complaint as if it had been rendered after answer filed and trial had on allegations denied by the answer.’ ”  (Ibid.;  Mitchell v. Jones (1959) 172 Cal.App.2d 580, 586, 342 P.2d 503.)

 Plaintiff was a party to the Nicoletti action.   While defendant was not, this does not defeat application of collateral estoppel.   The doctrine may be asserted offensively by one not a party to the prior action.  (Bernhard v. Bank of America (1942) 19 Cal.2d 807, 811–812, 122 P.2d 892;  Mountain Home Properties v. Pine Mountain Lake Assn. (1982) 135 Cal.App.3d 959, 964, 185 Cal.Rptr. 623.)   The elements of collateral estoppel being met here, it properly could have been applied to the trial court's decision with respect to the amount of damages suffered by plaintiff.

Plaintiff asserts, without citation to any authority (see People v. Dougherty, supra, 138 Cal.App.3d at pp. 282–283, 188 Cal.Rptr. 123), collateral estoppel should not be applied, in that, because the prior action involved a default judgment, “he had no incentive to fully develop damages evidence (because he predicted, correctly, that the Nicolettis could not pay any substantial judgment).”   Further, the issues in the two cases are not identical:  the Nicoletti action involved only a prove-up of the default, proof plaintiff's damages were at least what he claimed they were.   Finally, application of collateral estoppel would seriously undermine the policies behind section 1983 by denying him compensation from a government entity which violated his rights “merely because [he] had previously ‘won’ an empty judgment against a joint tortfeasor.”

These assertions are devoid of merit.   That the judgment in the Nicoletti action was the result of a default is of no significance;  it is treated the same as a judgment on the merits following trial (Martin v. General Finance Co., supra, 239 Cal.App.2d at p. 443, 48 Cal.Rptr. 773).   Plaintiff points to no evidence he failed to fully develop damages evidence at the default prove-up because he predicted the Nicolettis would not be able to pay any substantial judgment.   Moreover, plaintiff's failure to raise certain matters in the Nicoletti action would not defeat the application of collateral estoppel to those issues he actually litigated.  “[O]nce an issue is litigated and determined, it is binding in a subsequent action notwithstanding that a party may have omitted to raise a matter for or against it which, if asserted, might have produced a different outcome.”  (Alhino v. Starr, supra, 112 Cal.App.3d at p. 170, 169 Cal.Rptr. 136;  Kingsbury v. Tevco, Inc. (1978) 79 Cal.App.3d 314, 318, 144 Cal.Rptr. 773.)

Additionally, we hardly consider an award of $3,766,055 to be “an empty judgment.”   And it appears as though there might be some damages issues which were not litigated in the Nicoletti action which could have resulted in an additional award to plaintiff.   Thus, the policies behind section 1983 are not seriously undermined by application of collateral estoppel in this case.  (See Mountain Home Properties v. Pine Mountain Lake Assn., supra, 135 Cal.App.3d at pp. 964–965, 185 Cal.Rptr. 623.)

 As previously mentioned, collateral estoppel properly could have been applied on the issue of damages.5  However, defendant has failed to establish the facts foundational to application of collateral estoppel—the damages issues actually litigated in the Nicoletti action and, specifically, which items of damages were included in the $3.76 million award of special damages in that action.   Defendant merely speculates as to which items must have been included.

We examined the superior court file in the Nicoletti action, of which both we and the trial court took judicial notice, but it provides no illumination.   It indicates all exhibits on the damages issues were returned to plaintiff;  there are no copies in the file.   Neither is there a reporter's transcript of the hearing on the prove-up.

Absent evidence establishing which items of damages were included in the award in the Nicoletti action, neither we nor the trial court can actually apply collateral estoppel to the judgment.   Defendant having failed to meet its burden of proof on this issue (Evid.Code, § 500), there would be no error in the trial court's failure to apply collateral estoppel, if indeed it did fail to do so.   Defendant also having failed to meet its burden on appeal of demonstrating error, it is not entitled to relief based on the application of collateral estoppel.  (People v. Clifton (1969) 270 Cal.App.2d 860, 862, 76 Cal.Rptr. 193.)

Defendant also contends the damages award does not take into account plaintiff's duty to mitigate damages (Murphy v. City of Flagler Beach (11th Cir.1988) 846 F.2d 1306, 1308–1309).   Defendant argues:  “By selling his business to Fischer, plaintiff ․ abandoned any claim for profits he could have earned had he continued operating a recording studio or charter boat business.  [¶] Concededly, [plaintiff] testified he could not work after losing the [Magnifico].”   The reason for this was his full-time occupation with the litigation.  “In other words, [plaintiff] decided not to mitigate his damages so he could spend more time trying to recover damages.”   This does not relieve plaintiff of the duty to mitigate;  moreover, plaintiffs in civil rights cases are entitled to attorneys fees, which plaintiff recovered, so it was not necessary that he spend all his time on the litigation.

Defendant neglects to mention that not all of plaintiff's litigation efforts were part of his civil rights action;  some were aimed at recovering the Magnifico.   Further, once plaintiff did recover the boat, it was in no condition to enable him to continue his business and plaintiff may not have had the financial ability to restore it to its former condition.   Defendant cites nothing in the record and no authority to show the issue of mitigation was raised below and erroneously ruled upon by the trial court.   Therefore, this contention has been waived on appeal.  (People v. Dougherty, supra, 138 Cal.App.3d at pp. 282–283, 188 Cal.Rptr. 123.)

 Defendant next contends plaintiff's award of damages for emotional distress included improper elements, in that it awarded plaintiff damages for distress caused by the actions of the Nicolettis, not defendant;  defendant acknowledges damages for emotional distress properly may be awarded in a section 1983 action (Memphis Community School Dist. v. Stachura, supra, 477 U.S. at p. 307, 106 S.Ct. at p. 2543).   In view of the conclusion reached in part II, ante, regarding causation, this contention is without merit, and defendant has not demonstrated the award of damages for emotional distress included any improper elements.

 Defendant finally contends the award of interest on the continuing award of lost profits effects a double recovery for plaintiff.   The judgment awarded plaintiff lost profits of $2,483,292.00 through May 29, 1986, “and continuing on a daily basis until paid, in the amount of $901.36 per day.”   It also awarded “interest on the above-mentioned sum at the rate of 10% per annum.”

Defendant does not explain how awarding 10 percent interest on the unpaid lost profit awards effects a double recovery rather than making plaintiff whole for the lost profits and the lost opportunity of investing those profits.   Defendant originally cited no authority in support of its contention, rendering this contention without merit and effectively waived as well (People v. Dougherty, supra, 138 Cal.App.3d at pp. 282–283, 188 Cal.Rptr. 123).   Following oral argument, defendant submitted a citation in support of its contention—Estate of de Laveaga (1958) 50 Cal.2d 480, 489, 326 P.2d 129.   In Estate of de Leveaga, a trustee wrongfully withheld predistribution income from a beneficiary, instead treating the income as corpus.  (Ibid.)  The court held that, under these circumstances, the beneficiary was not entitled to both the earnings on the income and interest on it.  (Ibid.)  This holding has no application here, where the “income”—lost profits—was not earning money for plaintiff during the time period for which he sought interest.

Plaintiff's Cross–Appeal

IV

Plaintiff contends the trial court's failure to award any prejudgment interest should be taken into account in scrutinizing the damage award and on any remand.   The contention lacks merit.

 Preliminarily, defendant claims plaintiff failed to appeal from the trial court's order denying his motion to insert prejudgment interest.   While plaintiff's May 13, 1986 notice of appeal does not mention the order, his May 28, 1986 notice of cross-appeal does, so the court may consider his contention.

 Defendant also asks that this contention be deemed waived, in that plaintiff failed in his opening brief to provide any authority or analysis in its support.   Such a failure ordinarily waives a contention on appeal.   (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010, 197 Cal.Rptr. 250;  9 Witkin, Cal.Procedure, supra, Appeal, § 496, pp. 484–485.)   However, this rule may be relaxed for good reason, especially in view of the fact the court is free to consider points not even raised in the briefs.  (Id. at p. 485;  see Burns v. Ross (1923) 190 Cal. 269, 275–276, 212 P. 17.)   Thus, we may consider plaintiff's contention.

 Although neither section 1983 nor section 1988 of 42 United States Code mandates an award of prejudgment interest, the trial court may, in a section 1983 action, exercise its discretion to award prejudgment interest when necessary to fully compensate the plaintiff.  (See Heritage Homes of Attleboro v. Seekonk Water Dist. (1st Cir.1981) 648 F.2d 761, 764, vacated on other grounds 454 U.S. 807, 102 S.Ct. 81, 70 L.Ed.2d 76;  Pressey v. City of Houston (S.D.Tex.1988) 701 F.Supp. 594, 596, affd. sub nom. Pressey v. Patterson (5th Cir.1990) 898 F.2d 1018, 1026;  cf. Leaf v. City of San Mateo (1984) 150 Cal.App.3d 1184, 1191, 198 Cal.Rptr. 447;  Orme v. State of California ex rel. Dept. Water Resources (1978) 83 Cal.App.3d 178, 186, 147 Cal.Rptr. 735.)   However, the trial court may deny prejudgment interest where lost interest was considered in the damage award, which may be indicated in the size of the award.  (See Landes Const. Co., Inc. v. Royal Bank of Canada (9th Cir.1987) 833 F.2d 1365, 1375;  Leaf, supra, 150 Cal.App.3d at pp. 1191–1192, 198 Cal.Rptr. 447.)

Here, the record shows the trial court denied without prejudice plaintiff's motion to insert prejudgment interest.   He renewed the motion, and it was again denied.   The record does not reveal the reason for the denial, whether it was procedural or based on the merits of the motion, whether the trial court had taken lost interest into account in making the damage award, or what factors the trial court considered in denying the motion.   Thus it is difficult to tell whether the trial court abused its discretion in denying the motion.   In view of the fact it is plaintiff's burden to demonstrate by the record the claimed abuse of discretion, and in the absence of such a demonstration all presumptions and intendments are in favor of the regularity of the trial court's action (People v. Clifton, supra, 270 Cal.App.2d at p. 862, 76 Cal.Rptr. 193), we conclude plaintiff has failed to demonstrate an abuse of discretion in denying his motion for prejudgment interest and the order denying the motion should be affirmed.

Plaintiff's Appeal

V

Plaintiff asserts the trial court erred in granting defendant Lee Baca qualified official immunity under 42 United States Code section 1983.   We disagree.

 Preliminarily, defendants contend this appeal should be dismissed, in that plaintiff disregarded key rules of appellate practice.   First, plaintiff did not include a statement of facts with citations to the record in his opening brief, as required by the California Rules of Court, rules 13 and 15;  instead, plaintiff indicated he would include a statement of the case in his respondent's brief in defendant county's appeal and at one point referred to his trial brief.   This failure, defendants claim, hampered their ability to respond to plaintiffs' contentions.

As will be discussed post, questions of immunity are questions of law, and they do not require the extensive factual discussion that is required for review of questions of fact.   Review of defendants' respondents' brief indicates they were able to effectively address plaintiff's assertions on appeal, and our review of these assertions was not hampered by any failure to fully comply with rules 13 and 15.   Therefore, while plaintiff's opening brief may not have complied with the rules governing appellate briefing and is hardly a model brief, we decline to dismiss the appeal due to this failure.

Second, defendants point out plaintiff referred to a supposed error concerning a denial of discovery without citation to the record or any authority, and they claim any contention regarding this error should therefore be deemed waived.   Inasmuch as plaintiff actually makes no contention regarding any error but merely brings the discovery issue up in passing in a footnote, we would not have even considered addressing it as a contention on appeal.   Of course, as a contention, it would be waived.  (9 Witkin, Cal.Procedure, supra, Appeal, § 479, pp. 469–471.)

Turning now to the merits of plaintiff's appeal, the trial court ruled, “[w]ith respect to Defendant Baca, ․ because of a lack of proper training in the handling of the kind of situation that confronted him on November 10, 1977, defendant Baca did not fully appreciate or understand that situation, and though handling it improperly, did so in good faith, believing that Nicoletti was entitled to the things that he was demanding on the scene.  [¶] This being the case, he should be granted governmental immunity.”

 Government officials are generally entitled to qualified or “good faith” immunity from civil suits under federal law.  (Harlow v. Fitzgerald (1982) 457 U.S. 800, 806–807, 102 S.Ct. 2727, 2731–2732, 73 L.Ed.2d 396.)   Good faith has both objective and subjective aspects to it;  the objective aspect “involves a presumptive knowledge of and respect for ‘basic, unquestioned constitutional rights,’ ” while the subjective aspect “refers to ‘permissible intentions.’ ”  (Id. at p. 815, 102 S.Ct. at p. 2736.)   Thus, good faith immunity will be denied if the official “ ‘knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury․’ ”  (Ibid., emphasis omitted.)   These principles of good faith immunity apply to law enforcement officers sued under section 1983.  (Malley v. Briggs (1986) 475 U.S. 335, 340, 106 S.Ct. 1092, 1095, 89 L.Ed.2d 271.)

 The objective reasonableness of an officer's action is measured by reference to clearly established law.  (Harlow v. Fitzgerald, supra, 457 U.S. at p. 818, 102 S.Ct. at p. 2738.)   Where the law is clearly established, and no reasonably competent officer would agree the action should be taken, good faith immunity will be denied.  (Malley v. Briggs, supra, 475 U.S. at p. 341, 106 S.Ct. at p. 1096.)   Where officers of reasonable competence could disagree on the issue, immunity will be recognized.  (Ibid.)

The question whether immunity may be granted is separate from the merits of the plaintiff's case.  (Mitchell v. Forsyth (1985) 472 U.S. 511, 527–528, 105 S.Ct. 2806, 2816–2817, 86 L.Ed.2d 411.)   It is purely a legal question, thus the appellate court reviewing a trial court's grant of immunity need not examine the merits of the case but need only determine whether, as a matter of law, “the legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions.”  (Id. at p. 528 and fn. 9, 105 S.Ct. at p. 2816 and fn. 9.)

 As previously discussed, the law regarding self-help repossession of a boat pursuant to a preferred ship mortgage under the Ship Mortgage Act was not clearly established.   The language of the Act makes no reference to such repossessions, there are cases which hold the parties to a preferred ship mortgage may contract to allow self-help repossession or other state-law remedies (Dietrich v. Key Bank, N.A., supra, 693 F.Supp. at pp. 1116, 1117;  Price v. Seattle–First Nat. Bank, supra, 582 F.Supp. at pp. 1569–1570), and there are cases which suggest the entire field was preempted by the Ship Mortgage Act and no state-law remedies are available to the mortgagee (Bank of America Nat. Trust and Sav. Ass'n v. Fogle, supra, 637 F.Supp. at p. 307;  Nate Leasing Co., Inc. v. Wiggins, supra, 789 P.2d at pp. 94–95).   Therefore, we cannot conclude Lieutenant Baca violated any clearly established laws regarding self-help repossession under a preferred ship mortgage, and he thus was entitled to good faith immunity on that ground.

VI

Plaintiff additionally asserts the trial court erred in granting defendants immunity under the California Tort Claims Act.   Again, we disagree.

The Government Code provides, “[e]xcept as otherwise provided by statute ․ [a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.”  (§ 815, subd. (a).) 6  However, “[a] public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would [otherwise] have given rise to a cause of action against that employee or his personal representative.”  (§ 815.2, subd. (a).)  If the employee is immune from liability, the public entity likewise is immune.  (Id., subd. (b).)

As to an employee, the Government Code provides, “[e]xcept as otherwise provided by statute ․, a public employee is liable for injury caused by his act or omission to the same extent as a private person.”  (§ 820, subd. (a).)  However, again “[e]xcept as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.”  (§ 820.2.)

Plaintiff claims once sheriff's deputies, including Lieutenant Baca, made their discretionary decision to become involved in the dispute over the ownership of the Magnifico, their actions became purely ministerial and they were no longer immune from liability therefor under section 820.2.   They may be liable for conversion of plaintiff's boat, for which there is no immunity, therefore the county also may be held liable under section 815.2, subdivision (a).

Thus, the key question is whether Lieutenant Baca's challenged actions were discretionary or ministerial.   If discretionary, there is no liability.   If ministerial, liability may attach.

 In determining whether an action is discretionary or ministerial, the courts must look beyond a literal definition of “discretionary”;  in a sense, most actions involve a certain amount of discretion.  (Johnson v. State of California (1968) 69 Cal.2d 782, 788–790, 73 Cal.Rptr. 240, 447 P.2d 352.)   The policy behind the provision of immunity for discretionary acts is “the preservation of ardor in the performance of public duties” by protecting public employees “from the spectre of extensive personal tort liability.”  (Id. at pp. 790–791, 73 Cal.Rptr. 240, 447 P.2d 352.)   Therefore it has been recognized that many of the actions taken by public employees must be beyond the scope of judicial review in order not to chill the decision-making process in other branches of government.  (Id. at p. 793, 73 Cal.Rptr. 240, 447 P.2d 352.)   For this reason, discretionary actions have been held to be those involving “basic policy decisions.”   (Ibid., emphasis omitted.)   And, “[a]ccordingly, to be entitled to immunity [the employee must show] that such a policy decision, consciously balancing risks and advantages, took place.”  (Id. at pp. 794–795, fn. 8, 73 Cal.Rptr. 240, 447 P.2d 352.)

Defendants claim Lieutenant Baca's actions fall within the definition of discretionary, relying on Watts v. County of Sacramento (1982) 136 Cal.App.3d 232, 186 Cal.Rptr. 154.   In Watts, plaintiffs entered into an agreement to grow and harvest crops on another's land.   When they attempted to harvest the crops, the owner ordered them off the property and requested assistance from the county Sheriff's Department in ejecting them.   The owner informed the officers he was the owner of the property and plaintiffs had no legal right to be there.   The officers instructed plaintiffs to leave the property, under threat of arrest;  they obeyed, and the owner converted the crops to his own use.  (At p. 234, 186 Cal.Rptr. 154.)

Plaintiffs took the position once the officers “decided” to intervene in the dispute, any subsequent actions taken by them were ministerial.  (Watts v. County of Sacramento, supra, 136 Cal.App.3d at p. 235, 186 Cal.Rptr. 154.)   The court found “no legal basis” for that position.  (Ibid.)  It noted that in order to settle the dispute between plaintiffs and the owner, “the officers were obliged to exercise their discretion after they had observed what was happening and had listened to the explanation of those present.”  (Ibid.)  The court concluded their decision as to what action to take thereafter was an exercise of their judgment and discretion for which they should not be held liable.  (Id. at pp. 234, 235, 186 Cal.Rptr. 154.)

Plaintiff in the instant case takes a similar position to that taken by plaintiffs in Watts.   He states his “claim concerns what the County officers on the scene, including defendant Baca, did after they made their discretionary decision to become involved in the dispute over ownership of [his] ship.  [He] alleges that the officers clearly violated state procedures by taking possession of his ship without a valid court order backing them up, and are therefore liable for the strict liability tort offense of conversion.”  (Emphasis in the original.)

As in Watts, it could be said that once Lieutenant Baca made the decision to become involved in the dispute between plaintiff and the Nicolettis—as he could hardly fail to do given the potential for a breach of the peace—he was “obliged to exercise [his] discretion after [he] had observed what was happening and had listened to the explanation of those present.”  (136 Cal.App.3d at p. 235, 186 Cal.Rptr. 154.)   He made a policy decision to enforce the terms of the preferred ship mortgage, which appeared valid on its face and appeared to him to give Nicolino Nicoletti the right to repossess the Magnifico over plaintiff's objections rather than to follow the general policy of noninvolvement in ownership disputes.   This was a discretionary decision for which he—and thus the county—was immune from liability.  (Johnson v. State of California, supra, 69 Cal.2d at p. 793, 73 Cal.Rptr. 240, 447 P.2d 352;  see Gov.Code, §§ 820.2, 815.2, subd. (b).)

However, it also could be said Lieutenant Baca's actions following his decision to become involved in the dispute were ministerial, in that the basic policy decisions regarding involvement in attempted repossessions had been made by the Sheriff's Department, and his role was only to carry out that policy—to function in an impartial manner, keep the peace and enforce the laws.   He did not have to “consciously balanc[e] risks and advantages” (Johnson v. State of California, supra, 69 Cal.2d at pp. 794–795, fn. 8, 73 Cal.Rptr. 240, 447 P.2d 352) but merely act in accordance with predetermined policies.   Thus his actions were not discretionary, but ministerial, and neither he nor the county was immune from liability.  (Gov.Code, §§ 820.2, 815.2, subd. (a).)

 Of the two alternatives given above, the former one appears to us to be correct—that Lieutenant Baca's actions were discretionary.   When he saw the preferred ship mortgage he read it, interpreted it, and made the decision to aid its enforcement.   He later made the decision to have the Harbor Patrol bring the Magnifico back to the dock when plaintiff attempted to leave the harbor to avoid repossession.   At the dock, he made the decision to get plaintiff, his wife and his guard off the Magnifico and take them to the station to discuss the situation.   He subsequently made the decision not to allow them back on the boat until after the ownership dispute had been resolved by the courts.   In making each of these decisions, Lieutenant Baca had to exercise his discretion in determining the course of action to take;  there was no preset course of action which he simply followed.   Accordingly, his actions having been discretionary, he—and therefore the county—was entitled to immunity from liability under state law for those actions.   Hence, the trial court did not err in granting a nonsuit on plaintiff's state law causes of action.

The judgment and orders are affirmed.

FOOTNOTES

1.   The county also purports to appeal from an order denying its motion to vacate judgment—which is nonappealable (9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 111, pp. 128–129)—and an order awarding attorney's fees.   Inasmuch as the county makes no contention regarding the latter order, its challenge thereto may be deemed waived.   (Id., § 479, pp. 469–471.)

2.   Although Anita Rexroat was a plaintiff below and was included on plaintiff Richard Meilicke's notice of appeal, she has since assigned her interest in the litigation to plaintiff and abandoned her appeal.

3.   The Act was repealed in 1988 (102 Stat. 4752).

4.   Following oral argument, we requested letter briefs from the parties addressing the collateral estoppel issue.   In its brief, defendant characterizes the judgment in the Nicoletti action as a summary judgment.   Comments by plaintiff's trial counsel suggest there was a default, but the prove-up of damages was on a summary judgment motion.   Plaintiff does not contend collateral estoppel would not apply to a summary judgment.

5.   Neither the judgment nor the statement of decision gives any indication whether the trial court did so.

6.   All further statutory references are to the Government Code.

SPENCER, Presiding Justice.

DEVICH and ORTEGA, JJ., concur.