Edwin Durand v. Stonehouse Court Associates, L

FILED
NOT FOR PUBLICATION
AUG 14 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWIN DURAND; et al., No. 13-16280
Plaintiffs-counter-defendants D.C. No. 2:09-cv-02038-JAM-CKD
- Appellants,
v. MEMORANDUM*
CANDICE L. STEPHENSON; et al.,
Defendants-counter-claimants
- Appellees,
And
STONEHOUSE COURT ASSOCIATES,
LLC, a California limited liability
company,
Defendant.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted August 12, 2015**
San Francisco, California
Before: CLIFTON, N.R. SMITH, and CHRISTEN, Circuit Judges.
Plaintiffs Edwin and Madelaine Durand appeal the district court’s denial of
their motion for a new trial as to damages in their lawsuit against Defendants for
the conversion of their Wabco loader. Plaintiffs also appeal the district court’s
denial of their motion for reconsideration regarding the new trial ruling. Because
the district court did not make a mistake of law and the verdict is not contrary to
the clear weight of the evidence, we affirm.
The district court did not err by declining to adopt Plaintiffs’ proposed jury
instructions adding a definition of fair market value. The definition proposed by
Plaintiffs had been used to calculate value in eminent domain cases and was not
clearly applicable to conversion cases. Compare Cal. Civ. Code § 3336 with Cal.
Code Civ. P. § 1263.320(a); see Lint v. Chisholm, 121 Cal. App. 3d 615, 624
(1981). The court’s instruction did not misstate California law with respect to
calculating damages for conversion, and the court did not abuse its discretion by
wording the instructions differently from Cal. Civ. Code § 3336.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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We affirm the jury’s award of $6,000 because it is not contrary to the clear
weight of the evidence. The jury could properly rely upon testimony that the
loader had actually been sold for $6,000 at an arms-length transaction. Other
witnesses also testified that Plaintiffs were willing to accept $8,000 for the loader
before it had been converted, and that the loader may properly be valued at $7,000.
The jury also heard testimony that the loader had severely deteriorated and
depreciated over time through its exposure to the elements while sitting unused on
the property for many years. The testimony indicating that the loader may have
been valued at around $6,000-$8,000 by actual buyers and sellers, along with the
testimony as to the loader’s deterioration, sufficiently supports the jury’s damages
award.
The district court did not abuse its discretion by permitting Mr. Churches to
testify notwithstanding Defendants’ failure to make a proper disclosure under Fed.
R. Civ. P. 26. The district court did not err by concluding that Defendants’ failure
was substantially justified due to Plaintiffs’ disclosure of Mr. Churches in an
interrogatory shortly before discovery closed. The court also did not err by
concluding that Plaintiffs did not suffer prejudice because they had notice of Mr.
Churches’ availability and testimony due to their prior interactions with him. Nor
did the court err by concluding that Mr. Churches’ testimony was relevant because
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the dozer and loader had been used and stored together and Mr. Churches had
entered negotiations to purchase the loader.
The district court did not abuse its discretion by permitting the Green Guide
and other documents to be used for impeachment purposes when the Defendants
cross-examined Mr. Fadda. See Gribben v. United Parcel Service, Inc., 528 F.3d
1166, 1171–72 (9th Cir. 2008). These documents were not subject to the pretrial
disclosure requirements under Fed. R. Civ. P. 26. See id.
AFFIRMED.
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