John Baker v. Cottrell, Inc. ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 22 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN H. BAKER, an individual, No. 19-16431
Plaintiff-Appellee, D.C. No.
1:16-cv-00840-DAD-SAB
v.
COTTRELL, INC., MEMORANDUM*
Defendant-Appellant.
JOHN H. BAKER, an individual, No. 19-16528
Plaintiff-Appellant,
D.C. No.
v. 1:16-cv-00840-DAD-SAB
COTTRELL, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Submitted October 19, 2020**
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Before: HAWKINS, N.R. SMITH, and R. NELSON, Circuit Judges.
After he sustained a compound leg fracture from falling off the ladder on a
Cottrell, Inc. automobile transport trailer, plaintiff John Baker sued Cottrell alleging
liability on theories of strict products liability, breach of an implied warranty, and
negligence. A jury determined that Cottrell was liable on a single theory of
negligence. In these cross-appeals, Baker and Cottrell challenge the district court’s
denial of their respective motions for judgment as a matter of law as well as motions
relating to alleged discovery misconduct and costs. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
1. Cottrell and Baker first challenge the district court’s denial of their
motions under Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 50(b), seeking
judgment as a matter of law on Baker’s claim for negligence and Baker’s claim for
breach of the implied warranty, respectively. We review de novo the denial of a
renewed motion for judgment as a matter of law. Lakeside-Scott v. Multnomah
Cnty., 556 F.3d 797, 802 (9th Cir. 2009). We view the evidence “in the light most
favorable to the party in whose favor the jury returned a verdict and draw all
reasonable inferences in [that party’s] favor.” Id. We may set aside the jury’s verdict
“only if, under governing law, there can be but one reasonable conclusion as to the
verdict and only if there is no legally sufficient basis for a reasonable jury to find for
that party on that issue.” Jules Jordan Video, Inc. v. 144942 Canada Inc., 617 F.3d
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1146, 1155 (9th Cir. 2010) (internal quotation marks and citation omitted). Neither
Cottrell nor Baker have demonstrated that standard is met here.
Although a finding of negligent design generally is precluded if a jury finds
no defect in design for purposes of strict liability, Lambert v. Gen. Motors, 79 Cal.
Rptr. 2d 657, 659–60 (Ct. App. 1998), the jury’s negligence verdict did not rest on
a theory of negligent design. Instead, as the district court noted, the negligence
instructions “turned on whether [Cottrell] was negligent in supplying the ladder.”
The case on which Cottrell relies does not foreclose a finding of liability under the
circumstances. See Arriaga v. CitiCapital Com. Corp., 85 Cal. Rptr. 3d 143, 154
(Ct. App. 2008) (finding no duty to inspect and no negligence where defendant was
a “passive” “finance lessor” that “had neither the opportunity nor the expertise to
inspect the machine in order to discover defects”).
As he did in district court, Baker fails to identify meaningfully the elements
of a breach of implied warranty claim or the specific evidence adduced at trial that
he contends establish each element of the claim. In light of the instructions given,
which Baker does not challenge, a reasonable jury could have ruled in favor of
Cottrell on Baker’s breach of implied warranty claim. See A.D. v. Cal. Highway
Patrol, 712 F.3d 446, 453, 456–58 (9th Cir. 2013) (discussing burden for obtaining
judgment as a matter of law and deference to jury findings).
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2. Cottrell next contends that the district court erred by denying its motion
under Fed. R. Civ. P. 60(b) for relief from the judgment on account of Baker’s
alleged fraud stemming from his failure to disclose the contact information for and
interview notes regarding eyewitness Dennis Jacobson. The district court did not
abuse its discretion. De Saracho v. Custom Food Mach., Inc., 206 F.3d 874, 880
(9th Cir. 2000). Cottrell was aware of Jacobson and his status as a potential witness
to the accident at all relevant times; Cottrell ultimately was able to obtain a statement
from Jacobson and play an audio recording of that statement to the jury. Although
Baker should have supplemented his disclosures and discovery responses, the
district court reasonably concluded that, even assuming Baker’s conduct amounted
to fraud, Cottrell could have discovered the undisclosed information prior to trial
through the exercise of due diligence and in any event was not prejudiced. See id.;
Pac. & Arctic Ry. & Nav. Co. v. United Transp. Union, 952 F.2d 1144, 1148 (9th
Cir. 1991).
3. The district court likewise did not abuse its discretion by denying
Baker’s motion for expenses pursuant to Fed. R. Civ. P. 37. See Magnetar Techs.
Corp. v. Intamin, Ltd., 801 F.3d 1150, 1155 (9th Cir. 2015). The district court
permissibly concluded that Cottrell had a reasonable basis to believe it might prevail
at trial on Baker’s contentions that Cottrell was partially at fault for his accident, the
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ladder was designed defectively, and the ladder was in a used condition at the time
of sale. See id. at 1161.
4. Finally, Baker contends that the district court abused its discretion by
failing to award him taxable costs. See Fed. R. Civ. P. 54(d). Generally, a district
court has discretion to deny a prevailing party’s request for an award of taxable costs
but must specify its reasons for denying such a request. Berkla v. Corel Corp., 302
F.3d 909, 921 (9th Cir. 2002). Here, Baker failed to utilize the procedures
established by the local rules to have the district court review his request in
accordance with Fed. R. Civ. P. 54. See E.D. Cal. R. 292(e) (“On motion filed and
served within seven (7) days after notice of the taxing of costs has been served, the
action of the Clerk may be reviewed by the Court as provided in Fed. R. Civ. P.
54(d).”). We, therefore, will not disturb the district court’s action.
Cottrell’s motion to file a supplemental brief (Docket Entry No. 39) and
Baker’s motion to file a replacement reply brief (Docket Entry No. 41) are granted.
The supplemental and replacement briefs are deemed filed.
AFFIRMED.
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