Susan Closson v. Bank of America , 600 F. App'x 575 ( 2015 )

FILED
NOT FOR PUBLICATION APR 27 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUSAN CLOSSON and CHARLES R. No. 13-15317
CLOSSON,
D.C. No. 2:11-cv-00275-JCM-
Plaintiffs - Appellants, GWF
v.
MEMORANDUM*
BANK OF AMERICA, NA; BAC HOME
LOANS SERVICING LP; JILL
WOSNAK; and DOES 1-20,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted April 16, 2015
San Francisco, California
Before: SCHROEDER and N.R. SMITH, Circuit Judges, and RESTANI,** Judge.
Susan and Charles Closson appeal the district court’s judgment in Bank of
America’s (“BOA”) favor following a jury trial on their breach of contract and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Jane A. Restani, Judge for the U.S. Court of
International Trade, sitting by designation.
breach of the implied covenant of good faith and fair dealing claims arising from
the foreclosure of the Clossons’ property. We have jurisdiction under 28 U.S.C.
§ 1291. The Clossons argue that the district court erred in allowing BOA to argue
the unpled affirmative defense of release and in admitting evidence of their post-
March 2008 financial difficulties, and also argue the district court engaged in
judicial misconduct at trial. We conclude that there was no harm in allowing BOA
to argue the affirmative defense of release, the district court did not abuse its
discretion in admitting the evidence of the Clossons’ post-March 2008 financial
troubles, and the district court judge did not engage in judicial misconduct; thus we
affirm.
We need not determine whether the district court erred in allowing BOA to
argue the affirmative defense of release because even if it did, any error was
harmless and does not warrant a reversal. If a jury’s verdict is “more probably than
not untainted by the error,” reversal is not required. Obrey v. Johnson, 400 F.3d
691, 699, 701 (9th Cir. 2005); Haddad v. Lockheed Cal. Corp., 720 F.2d 1454,
1459 (9th Cir. 1983). Because the jury found that the Clossons failed to meet their
burden of proving BOA breached their contract and the implied covenant of good
faith and fair dealing, it did not need to evaluate any affirmative defenses, whether
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waiver or release, to reach its decision. Any error in allowing evidence and
argument on that defense, thus, was harmless.
The district court did not abuse its discretion in allowing evidence of the
Clossons’ financial troubles after March 2008 to be introduced at trial because it
was relevant and not unduly prejudicial. The evidence was relevant because it was
probative of the Clossons’ ability to perform their contractual obligations and of
the inevitability of foreclosure, breaking the link to the Clossons’ damage
allegations against BOA for the tax liability due to debt forgiveness. As the
Clossons did not renew their prejudice objection at trial after the district court
judge invited them to do so in his ruling on their motion in limine to exclude the
evidence, this aspect of the objection is to be reviewed for plain error. See Fed. R.
Evid. 103 advisory committee’s notes on 2000 amendments; Beachy v. Boise
Cascade Corp., 191 F.3d 1010, 1016 (9th Cir. 1999) (reviewing evidentiary ruling
for plain error where party failed to raise the objection at trial). Under any
standard, however, the evidence was not unduly prejudicial because the risk of jury
confusion concerning the evidence was low, the evidence was straightforward and
the time period of the evidence was made clear.
Finally, the district court judge did not engage in judicial misconduct at trial.
A new trial based on judicial misconduct is warranted only if, from the record, a
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judge’s action “shows actual bias or leaves an abiding impression that the jury
perceived an appearance of advocacy or partiality.” United States v. Laurins, 857
F.2d 529, 537 (9th Cir. 1988); see Shad v. Dean Witter Reynolds, Inc., 799 F.2d
525, 531 (9th Cir. 1986) (holding that trial judge’s conduct was not improper when
judge questioned witness, criticized counsel, and managed the pace of the trial).
Although the district court judge interrupted questioning, admonished the
Clossons’ counsel, and denied most of the Clossons’ motions, he did so to thwart
leading questions, to aid the jury’s understanding on the key issue (i.e. the
interpretation of the contract), and to facilitate the overall trial process. The jury
instructions made clear that it was up to the jury to interpret the contract. There
was no misconduct.
AFFIRMED.
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