                                                                              FILED
                            NOT FOR PUBLICATION                                JUL 23 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


ESTATE OF MAURICIO CORNEJO, by                   No. 12-56847
and through its representative, Jeanette
Solis; et al.,                                   D.C. No. 2:07-cv-03413-PLA

              Plaintiffs - Appellees,
                                                 MEMORANDUM*
 v.

CITY OF LOS ANGELES; et al.,

              Defendants,

  And

MATTHEW MENESES; et al.,

              Defendants - Appellants.


                   Appeal from the United States District Court
                       for the Central District of California
                   Paul L. Abrams, Magistrate Judge, Presiding

                        Argued and Submitted July 8, 2015
                              Pasadena, California

Before: REINHARDT, FERNANDEZ, and CLIFTON, Circuit Judges.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Mauricio Cornejo fled from Los Angeles police after he was asked out of his

car during a traffic stop in February of 2007. Cornejo was not an upstanding

citizen: he was a gang member with an outstanding warrant, though it is unclear if

the officers knew this at the time. Regardless, during the ensuing encounter the

officers beat Cornejo severely. After Cornejo was subdued, the officers failed to

seek medical care for him despite his obvious injuries and difficulty breathing. By

the time the officers arrived at the station with Cornejo, he was unresponsive and

had to be carried into the building. After placing him in a holding cell, the officers

finally summoned medical help, but Cornejo was dead by the time it arrived.

      Cornejo’s children, as his successors in interest, brought suit for violations

of his constitutional rights actionable under 42 U.S.C. § 1983, as well as state law

battery, negligence, and wrongful death claims. A jury found that Defendants had

violated Cornejo’s Fourth Amendment rights by using excessive force and

unreasonably denying him medical care. The jury also found Defendants liable for

battery, negligence, and wrongful death.

      Defendants challenge the judgment on three grounds. First, they argue that

the children lacked Article III standing to bring Cornejo’s § 1983 claim. Second,

they contend, for the first time on appeal, that the wrongful death damages should

be reduced to account for Cornejo’s comparative negligence. Third, Defendants


                                           2
claim that they are entitled to qualified immunity against liability for failure to

provide medical care. We reject all three claims and affirm the judgment.

      State law governs who receives a decedent’s § 1983 claim. 42 U.S.C. §

1988; Robertson v. Wegmann, 436 U.S. 584, 589 (1978). Under California law,

Cornejo’s claim survives his death and “passes to [his] successor in interest.” Cal.

Civ. Proc. Code § 377.30. Cornejo’s successors in interest are the beneficiaries of

his estate: his children. Cal. Civ. Proc. Code § 377.11. If an estate is formally

probated, the estate’s personal representative brings the decedent’s legal claims. If

not, the successors in interest do. Cal. Civ. Proc. Code § 377.30. The successors

in interest receive the proceeds of the litigation either way.

      On appeal, Defendants point out that an estate was opened for Cornejo, and

thus its personal representative, Jeanette Solis, should have brought Cornejo’s §

1983 claim.1 They argue that the children therefore lack Article III standing. We

reject this contention. Because the cause of action passes to the children and they

receive any proceeds from the suit, they have Article III standing for the same




      1
       Solis was still part of the litigation as a guardian ad litem for one of the
children.
                                           3
reasons that an assignee of a valid legal claim does.2 See, e.g., Sprint

Communications Co. v. APCC Servs., Inc., 554 U.S. 269 (2008) (assignees have

Article III standing, even when they are contractually obligated to pay any

recovery back to the assignors). Defendants’ challenge actually goes to prudential

standing and is waived at this point. See Pershing Park Villas Homeowners Ass'n

v. United Pac. Ins. Co., 219 F.3d 895, 899 (9th Cir. 2000) (“[A] party waives

objections to nonconstitutional standing not properly raised before the district

court.”).

      Defendants next assert that the wrongful death damages should be reduced

to account for Cornejo’s own negligence. Defendants failed to raise this argument

at the district court. Their proposed judgment awarded Plaintiffs the full wrongful

death damages given in the verdict. Likewise, they neither moved to amend the

judgment, nor included this issue in their motion for judgment as a matter of law.

In fact, Defendants told the jury in their closing argument that damages would not

be reduced, and conceded to the magistrate judge that they did not believe

apportioning damages was appropriate in this case. Defendants offer no


      2
       Even if we agreed with Defendants that the children otherwise lacked
Article III standing, we would conclude that the parties amended the pleadings
before judgment under Rule 15(b)(2) to add Solis in her capacity as personal
representative of Cornejo’s estate. This would also resolve any standing issues.


                                          4
convincing reason why we should consider this issue for the first time here. See

United States v. Carlson, 900 F.2d 1346, 1349 (9th Cir. 1990). Accordingly, we

conclude that Defendants waived it.

      Defendants are also not entitled to qualified immunity. We review

Defendants’ claim de novo, but we view the evidence in the light most favorable to

the Plaintiffs. C.B. v. City of Sonora, 769 F.3d 1005, 1022 (9th Cir. 2014) (en

banc), cert. denied, 135 S. Ct. 1482 (2015). A defendant is entitled to qualified

immunity if plaintiffs have not shown facts that make out a constitutional violation

or if the constitutional right violated was not clearly established. A.D. v. Cal.

Highway Patrol, 712 F.3d 446, 453-54 (9th Cir. 2013), cert. denied sub nom.,

Markgraf v. A.D., 134 S. Ct. 531 (2013). In this case, however, Plaintiffs have

shown a violation of Cornejo’s clearly established constitutional rights.

      Defendants contend that Cornejo’s right to medical care was governed by

the Fourteenth Amendment and that liability was limited to cases in which officers

were deliberately indifferent to medical needs. This is incorrect. In Tatum v. City

& County of San Francisco, we found that suspects have a Fourth Amendment

right to “objectively reasonable post-arrest [medical] care” until the end of the

seizure. 441 F.3d 1090, 1099 (9th Cir. 2006). This means that officers must “seek

the necessary medical attention for a detainee when he or she has been injured


                                           5
while being apprehended by either promptly summoning the necessary medical

help or by taking the injured detainee to a hospital.” Id. (quoting Maddox v. City of

Los Angeles, 792 F.2d 1408, 1415 (9th Cir.1986)). Cornejo’s seizure lasted at least

until he arrived at the police station. See Fontana v. Haskin, 262 F.3d 871, 879-80

(9th Cir. 2001). The district court correctly instructed the jury under Tatum, and

the evidence is easily sufficient to support the jury’s finding that Defendants were

liable on this count.

      Defendants assert that Tatum is ambiguous about the standard for post-arrest

care because it looks to Maddox, which did not set a firm standard. The part of

Maddox adopted by Tatum, however, is plain: police must seek necessary medical

attention by promptly summoning help or taking the injured arrestee to a hospital.

      Defendants’ violation was clearly established as well. The salient question

is whether Defendants had fair notice their conduct was illegal, Hope v. Pelzer, 536

U.S. 730, 741 (2002), bearing in mind that fair notice is not found in the broad

generality that the Fourth Amendment prohibits unreasonable seizures. Ashcroft v.

al-Kidd, 131 S. Ct. 2074, 2084 (2011). In Tatum, we held that the constitution

required the officers to obtain medical help when the decedent’s labored breathing

after being handcuffed made it clear he was in distress. 441 F.3d at 1099. That

conclusion is directly applicable here. Even putting the specific facts of Tatum


                                          6
aside, no reasonable officer could have mistakenly believed that―contrary to his

training―he did not need to obtain medical care for a man who was severely

beaten in an unreasonable use of force, had clear injuries, was shaking

uncontrollably, had substantial and increasing difficulty breathing, and was

groaning and non-responsive. He would not need more Ninth Circuit cases to

know that ignoring those needs would violate a suspect’s constitutional rights.3

      AFFIRMED.




      3
        Indeed, even under deliberate indifference, a reasonable jury could have
found Defendants liable. The evidence showed that Cornejo had a serious medical
condition that a lay person would recognize needed medical attention, thus meeting
the objective prong of the test. The jury also did not believe Defendants’ claims
that Cornejo looked fine, because it could not have concluded that the officers
unreasonably denied him care if that were true. In light of this and the objective
evidence about Cornejo’s condition, a reasonable jury could have found that the
officers subjectively realized that Cornejo was in great medical danger, but
nevertheless failed to act, thereby meeting the subjective prong as well.
                                         7
