Luis Gomez v. City of Torrance

FILED
NOT FOR PUBLICATION JUN 21 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LUIS GOMEZ; MARIA GILA GOMEZ, No. 10-55144
Plaintiffs - Appellants, D.C. No. 2:07-cv-00790-ODW-SH
v.
MEMORANDUM *
CITY OF TORRANCE; TORRANCE
POLICE DEPARTMENT; DAVID
MAITLEN, Officer,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, District Judge, Presiding
Submitted June 6, 2011 **
Pasadena, California
Before: O’SCANNLAIN and IKUTA, Circuit Judges, and PIERSOL, Senior
District Judge.***
*
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).
***
The Honorable Lawrence L. Piersol, Senior United States District
Judge for the District of South Dakota, sitting by designation.
The district court did not abuse its discretion in bifurcating the trial into a
statute of limitations phase and a liability phase because the statute of limitations
issue was dispositive, see Exxon Co. v. Sofec, Inc., 54 F.3d 570, 575 (9th Cir.
1995); see also Fed. R. Civ. P. 42(b), and the issues associated with the equitable
estoppel and liability claims were not so interwoven as render bifurcation
inappropriate, see Hilao v. Estate of Marcos, 103 F.3d 767, 782 (9th Cir. 1996).
The district court did not improperly exclude evidence regarding the fourth
surveillance tape or the white car. The Gomezes never offered the fourth
surveillance video for admission into evidence. Any error in excluding evidence
regarding Officer Maitlen’s alleged fabrication of a story about a driver of a white
car was harmless as to the Gomezes’ equitable estoppel claim, because there was
no evidence that the Gomezes were aware of this incident, and so they could not
have relied on Officer Maitlen’s alleged misrepresentation. See Guerrero v. Gates,
442 F.3d 697, 706–07 (9th Cir. 2006); Santa Maria v. Pac. Bell, 202 F.3d 1170,
1176 (9th Cir. 2000). The exclusion of the “white car” evidence was also harmless
as to the Gomezes’ imputed concealment claim (i.e., the claim that Officer
Maitlen’s alleged intent to defraud the Gomezes by proffering the white car story
should be imputed to the police department), because the Gomezes offered no
evidence of collusion between Maitlen and the police department on this issue. Cf.
Riddell v. Riddell Wash. Corp., 866 F.2d 1480, 1493 (D.C. Cir. 1989).
Although the district court erred in failing to instruct the jury that “the
plaintiff’s actual and reasonable reliance on the defendant’s conduct or
representations” is one factor in a finding of equitable estoppel, Santa Maria, 202
F.3d at 1176, the error was harmless because the Gomezes failed to offer evidence
that they relied on the police report or that the attorneys whom they consulted
declined to take the case because of the police report, see Snyder v. Freight,
Constr., Gen. Drivers, Warehousemen & Helpers, Local No. 287, 175 F.3d 680,
688 n.12 (9th Cir. 1999).
The district court did not err in failing to define the word “prevent,” because
it is a “‘common term[] that [is] readily understandable to the jury,’” see United
States v. Somsamouth, 352 F.3d 1271, 1275 (9th Cir. 2003) (quoting United States
v. Shryock, 342 F.3d 948, 986 (9th Cir. 2003)), and any ambiguity regarding the
intent requirement was clarified earlier in the jury instructions, see Guebara v.
Allstate Ins. Co., 237 F.3d 987, 992 (9th Cir. 2001). Finally, although the district
court erred in instructing the jury that, in order to impose liability on the City, the
Gomezes were required to prove that an individual city official or employee was
liable for any fraudulent concealment pursuant to a “policy, custom, or
longstanding practice,” such error was harmless because the verdict form indicates
that the jury did not find that any of the individual defendants were liable. The
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Gomezes waived their claim that including the names of police officers who were
not defendants on the verdict form was an error because they failed to offer or
develop any argument regarding this claim in their opening brief. United States v.
Kama, 394 F.3d 1236, 1238 (9th Cir. 2005).
The district judge’s questioning of witnesses and the judge’s allegedly
improper gestures and expressions at trial did not deprive the Gomezes of a fair
trial. The district judge’s questioning of witnesses was not improper and appears
to have been for the purpose of clarifying each witness’s testimony, see United
States v. Mostella, 802 F.2d 358, 361 (9th Cir. 1986), and there is no evidence in
the record that the district judge’s expressions or gestures overstepped propriety,
see Larson v. Palmateer, 515 F.3d 1057, 1067 (9th Cir. 2008).
AFFIRMED.
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