Vargas v. Lopez

Background

Ernesto Vargas, an inmate at the Correctional Training Facility in Soledad, California, brought claims under 42 U.S.C. § 1983 and California state law against Correctional Officer L. Lopez-Ortega and Correctional Lieutenant C. Whitman. The case was set for a jury trial on October 20, 2025, involving three claims: two against Lopez-Ortega and one against Whitman.

The court had ordered supplemental briefing on comparative fault. Comparative fault is a defense under which a defendant argues that the plaintiff’s own fault should reduce the plaintiff’s recovery. The parties filed a joint statement addressing whether Defendants could raise that defense at trial.

Comparative-Fault Defense

Vargas argued that Defendants waived comparative fault by failing to raise it in a timely way and should be barred from presenting the defense or arguing it to the jury. Defendants argued that Vargas had agreed to their use of the defense in jointly filed pretrial documents. In the alternative, Defendants asked for permission to amend their Answer to add comparative fault.

The court found that Defendants had not pleaded comparative fault in their Answer, which asserted only qualified immunity as an affirmative defense. The court rejected Defendants’ argument that Vargas had agreed to the defense through the pretrial filings. Although those filings referred to comparative fault, Vargas said his counsel had not agreed to the belated defense and had objected to it in proposed jury instructions. The court also found that Vargas’s proposed instruction concerned joint and several liability between Defendants, not comparative fault assigned to Vargas.

The court therefore found that Defendants had waived the comparative-fault affirmative defense. It also denied leave to amend the Answer. The court explained that a scheduling order had set April 22, 2024, as the deadline for seeking leave to amend pleadings. Because that deadline had passed, Defendants needed to show “good cause” under Federal Rule of Civil Procedure 16(b), including diligence in seeking the amendment. The court found that Defendants had not shown diligence or good cause and agreed that allowing the late amendment would prejudice Vargas.

Order

The court ordered that Defendants were precluded from arguing a comparative-fault affirmative defense at trial. The court denied Defendants’ request for leave to amend their Answer. It also ruled that Questions 11 and 12 would not be included in the final verdict form.

Mitigation of Damages

Defendants separately asked the court to give a jury instruction on mitigation of damages if the court rejected the comparative-fault instruction. Mitigation of damages concerns whether a plaintiff took reasonable steps to limit damages. Vargas did not address this issue in the supplemental briefing.

The court did not decide whether to give a mitigation instruction. Instead, it ordered the parties to file a joint statement of no more than five pages by 3:00 p.m. on October 1, 2025. The statement must address whether such an instruction should be given, what it should say, and whether the court should wait until the close of evidence to determine whether the evidence supports the instruction.