O 1

2 3 4 5 6 7

8 United States District Court 9 Central District of California

10

11 NICOLE JUAREZ ZELAYA, Case № 2:20-cv-08382-ODW (MAAx)

12 Plaintiff,

ORDER DENYING MOTION FOR

13 v.

NEW TRIAL AND/OR MOTION TO

14 CITY OF LOS ANGELES et al., ALTER OR AMEND THE 15 JUDGMENT [133] Defendants.

16 17 I. INTRODUCTION 18 After a four-day trial, a jury returned a verdict in favor of Plaintiff Nicole Juarez 19 Zelaya, individually and as successor in interest to her father Decedent Jacob Juarez 20 Cedillo, and against Defendants City of Los Angeles, Officer Dustin Richmond, and 21 Officer Joseph Hunt, on Zelaya’s claims for excessive force, interference with familial 22 relations (wrongful death), and municipal liability for failure to train. (See Verdict, 23 ECF No. 121.) Pursuant to Federal Rules of Civil Procedure (“Rule”) 59(a) and (e), 24 Defendants move for a new trial or to alter or amend the judgment on the basis of 25 prejudicial judicial misconduct (“Motion”). (Mot., ECF No. 133.) For the reasons 26 discussed below, the Court DENIES Defendants’ Motion.1 27

28 1 Having carefully considered the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 II. BACKGROUND 2 Over four days in October 2023, the Court held a jury trial in this matter, during 3 which testimony and video evidence established the following objective facts. 4 On April 8, 2019, Los Angeles Police Department (“LAPD”) Officers 5 Richmond and Hunt observed Cedillo sitting in the driveway of a 76-gas station while 6 they were on patrol. Officer Richmond testified they thought Cedillo may be under 7 the influence or in need of medical assistance. Officers Richmond and Hunt, both 8 more than six feet tall and over 200 pounds, pulled over and approached Cedillo, who 9 was approximately five foot three inches tall and under 150 pounds. Cedillo put his 10 hands together behind his head and then behind his back, in what Officers Richmond 11 and Hunt recognized as a handcuffing posture. Officers Richmond and Hunt had 12 difficulty understanding Cedillo’s verbal responses to their inquiries. Cedillo 13 permitted Officer Richmond to handcuff him. Cedillo stood when the Officers asked 14 that he stand. Cedillo voluntarily walked with them to the front of their patrol car, 15 leaving his shoes behind. Officers Richmond and Hunt began to conduct a search of 16 Cedillo’s pockets and applied “wrist lock” and “C-grip” pain compliance techniques 17 to Cedillo’s handcuffed wrists and arms. 18 Officers Richmond and Hunt then conducted a “take down” of Cedillo to the 19 ground, where Cedillo landed chest down and hit his head on the curb, causing a 20 laceration and bleeding. Officer Richmond landed with his chest on Cedillo’s back 21 and then at times lifted up on his toes to apply more weight downward. Officer Hunt 22 landed with his body on Cedillo’s legs and wrapped his arms around Cedillo’s legs to 23 restrain them. They called for backup. When it arrived, they had another LAPD 24 officer apply a “hobble restraint” to Cedillo’s ankles. Officers Richmond and Hunt 25 remained on top of Cedillo in this prone restraint for approximately four and a half 26 minutes. When Cedillo “stopped making sounds” and “stopped resisting,” they rolled 27 him to his side, into what is called a “recovery position.” An LAPD supervisor 28 arrived and called for paramedics when he saw the laceration on Cedillo’s head. 1 Cedillo remained unconscious on his side for approximately eleven minutes. Officer 2 Richmond testified he thought that Cedillo was asleep during this time. 3 The paramedics arrived. One paramedic approached Cedillo, who was still 4 being held on his side, and shook his shoulder to check for consciousness. Cedillo, 5 still handcuffed and hobbled, startled, and began moving and making noise. Officers 6 Richmond and Hunt immediately put Cedillo back into a prone restraint, with Officer 7 Richmond on Cedillo’s back and Officer Hunt on Cedillo’s legs. They kept Cedillo in 8 this second prone restraint for more than three minutes, again waiting until Cedillo 9 “stopped making sounds.” 10 The paramedics then placed an unconscious Cedillo on a gurney, to which he 11 was handcuffed. The paramedics observed Cedillo was not breathing and had no 12 pulse, so they administered CPR and transported him to the hospital. He never 13 regained consciousness. Cedillo was taken off of life support five days later. 14 Zelaya argued to the jury that Cedillo was compliant and that there was no need 15 to use pain compliance techniques, take downs, or prone restraints. She argued 16 Cedillo died due to restraint asphyxia caused by Officers Richmond and Hunt’s 17 excessive prone restraint. (See Tr. 624:1–652:18, 661:2–668:10 (Pl.’s Closing Arg.), 18 ECF No. 149.)2 Defendants argued to the jury that, although initially compliant, 19 Cedillo resisted them when they began to search him and their use of force was 20 appropriate to restrain Cedillo from kicking them, trying to run away and escape, and 21 being combative. They argued Cedillo died from a cardiac arrest suffered during the 22 second prone restraint, due to his history of drug use and bad heart. (See Tr. 653:5– 23 660:25 (Defs.’ Closing Arg.).) 24 The jury returned a verdict for Zelaya on all counts. (See Verdict.) They 25 awarded $6,000,000 for Cedillo’s pre-death pain and suffering, $6,000,000 for 26 Cedillo’s loss of life, and $1,500,000 for Zelaya’s past and future wrongful death for 27 the loss of her father. (Id. at 4.) 28 2 The entire trial transcript may be found in the case docket at ECF Nos. 145 through 149. 1 Defendants now move pursuant to Rule 59(a) and (e) for a new trial or to alter 2 or amend the judgment. (See Mot. 1.) The Motion is fully briefed. (See Opp’n, ECF 3 No. 144; Reply, ECF No. 151.) 4 III. LEGAL STANDARD 5 A court may grant a motion for new trial “for any reason for which a new trial 6 has heretofore been granted in an action at law in federal court.” Fed. R. Civ. 7 P. 59(a)(1)(A). Thus, Rule 59(a) permits a court to grant a new trial where the 8 moving party demonstrates the jury’s “verdict is contrary to the clear weight of the 9 evidence, is based upon false or perjurious evidence, or to prevent a miscarriage of 10 justice.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) (quoting 11 Passantino v. Johnson & Johnson Consumer Prods., 212 F.3d 493, 510 n.15 (9th Cir. 12 2000)). Similarly, Rule 59(e) permits a court to alter or amend a judgment where the 13 moving party demonstrates “that the motion is necessary to correct manifest errors of 14 law or fact upon which the judgment is based.” McDowell v. Calderon, 197 F.3d 15 1253, 1255 n.1 (9th Cir. 1999). The authority to grant a new trial or alter or amend a 16 judgment under Rule 59 “is confided almost entirely to the exercise of discretion on 17 the part of the trial court.” Kode v. Carlson, 596 F.3d 608, 612 (9th Cir. 2010) 18 (discussing a Rule 59(a) motion); Kaufmann v. Kijakazi, 32 F.4th 843, 850 (9th Cir. 19 2022) (discussing a Rule 59(e) motion). 20 IV. DISCUSSION 21 Defendants move for a new trial pursuant to Rule 59(a) on the grounds that the 22 Court’s comments and questions during trial amounted to prejudicial judicial 23 misconduct, which denied them a fair trial and provoked the jury to award excessive 24 damages. (See Mot. 1, 12, 21.) Defendants alternatively move to vacate, amend, or 25 alter the judgment pursuant to Rule 59(e) “[f]or the same reasons.” (Mot. 1, 22.) The 26 Court has carefully reviewed the parties’ briefing and the trial transcript in its entirety. 27 Finding the Court’s comments and questions did not “project[] to the jury an 28 appearance of advocacy or partiality” or demonstrate “actual bias,” United States v. 1 Mostella, 802 F.2d 358, 361 (9th Cir. 1986), and finding the evidence supports the 2 jury award, the Court denies Defendants’ Motion. 3 A. No Prejudicial Judicial Misconduct 4 Defendants contend the Court’s comments and questioning of several witnesses 5 constituted prejudicial judicial misconduct, individually and cumulatively. (Mot. 1.) 6 “The law grants district judges wide discretion to participate in the questioning 7 of witnesses,” as it “is well established that a trial judge is more than a moderator or 8 umpire.” Swinton v. Potomac Corp., 270 F.3d 794, 808 (9th Cir. 2001) (quoting 9 Mostella, 802 F.2d at 361). Indeed, it is the court’s “responsibility to make sure that 10 evidence is understood, questions are clear and that words used are understood by the 11 jury.” J.R. v. City of San Bernardino, No. 5:05-cv-1045-JWJ, 2007 WL 5030309, 12 at *3 (C.D. Cal. Aug. 6, 2007), aff’d sub nom. J.R. ex rel. Dickson v. City of San 13 Bernardino, 374 F. App’x 755 (9th Cir. 2010). Thus, “[i]t is entirely proper for him to 14 participate in the examination of witnesses for the purpose of clarifying the evidence, 15 confining counsel to evidentiary rulings, controlling the orderly presentation of the 16 evidence, and preventing undue repetition of testimony.” Mostella, 802 F.2d at 361; 17 see United States v. Poland, 659 F.2d 884, 893 (9th Cir. 1981) (finding questions 18 “calculated to make the testimony clearer to the jury” not improper). 19 A court’s statements or intervention during trial require a new trial “only if the 20 record ‘discloses actual bias on the part of the trial judge or leaves . . . an abiding 21 impression that the judge’s remarks and questioning of witnesses projected to the jury 22 an appearance of advocacy or partiality.’” Shad v. Dean Witter Reynolds, Inc., 23 799 F.2d 525, 531 (9th Cir. 1986) (alterations omitted). Judicial remarks during a trial 24 that are critical, disapproving, or even hostile to counsel, the parties, or their cases, 25 “ordinarily do not support a bias or partiality challenge.” Liteky v. United States, 26 510 U.S. 540, 555 (1994). This includes “expressions of impatience, dissatisfaction, 27 annoyance, and even anger.” Id. at 555–56. 28 1 “The standard for reversal on the basis of judicial misconduct in a civil trial 2 is . . . quite high.” Kern v. Levolor Lorentzen, Inc., 899 F.2d 772, 779–80 (9th Cir. 3 1990); Kennedy v. L.A. Police Dep’t, 901 F.2d 702, 709 (9th Cir. 1989), overruled on 4 other grounds by Act Up!/Portland v. Bagley, 988 F.2d 868, 872–73 (9th Cir. 1993). 5 “Very few cases outside of the criminal law area support [a] . . . finding of general 6 judicial misconduct during trial.” Handgards, Inc. v. Ethicon, Inc., 743 F.2d 1282, 7 1289 (9th Cir. 1984). 8 1. Court Participation—Individual Incidents 9 Defendants identify five instances of judicial participation in the trial that they 10 contend were improper and require a new trial.3 (See Mot. 5–11.) As discussed 11 further below, each incident is soundly within the Court’s discretion to ensure the 12 orderly presentation of evidence and to clarify questions and testimony. Even if some 13 instances could be deemed misconduct, they do not warrant a new trial. 14 a. Incident videos 15 Defendants first object to the Court directing Zelaya’s Counsel to stop the 16 replay of the incident videos. (Id. at 6 (citing Tr. 174:7–9).) The “trial judge has a 17 wide discretion in his management of the trial,” Robinson v. United States, 401 F.2d 18 248, 252 (9th Cir. 1968), which includes properly “controlling the orderly presentation 19 of the evidence,” Mostella, 802 F.2d at 361. 20 Over approximately thirty minutes, Zelaya’s Counsel questioned Officer 21 Richmond about the incident using video from multiple body worn cameras, 22 surveillance videos, and patrol car dashboard cameras. Counsel then played a video 23 of the incident portraying four synchronized video sources. When the replay became 24 cumulative, the Court directed Counsel to stop the video. (Tr. 174:7–9.) Although 25 Defendants accurately note that the videos are difficult to watch, (see Mot. 21), the 26

3 During trial, Defendants objected only to the Court’s questioning of defense police practice expert 27 Edward Flossi. (See Tr. 603:22–25 (defense mistrial motion).) Nevertheless, the Court considers all 28 identified instances of alleged judicial misconduct and finds Defendants fail to establish that a new trial is necessary. 1 Court’s intervention clearly reflects only the Court’s obligation to ensure “the orderly 2 presentation of the evidence.” Kennedy, 901 F.2d at 709 (quoting United States v. 3 Malcolm, 475 F.2d 420, 427 (9th Cir. 1973)). 4 b. Questioning Officer Hunt 5 Defendants next object to the Court’s questioning of Officer Hunt. (Mot. 6.) 6 Specifically, Defendants contend the Court’s “skepticism” of Officer Hunt’s testimony 7 prejudicially undermined his credibility. (Id. at 6–7, 16–17 (citing Tr. 245:1–247:16).) 8 However, a district judge has the right to examine witnesses and call the jury’s 9 attention to important evidence. Kennedy, 901 F.2d at 709; Kern, 899 F.2d at 780. 10 “Questions by a court indicating skepticism are not improper when the witnesses are 11 permitted to respond ‘to the district court’s expressed concerns to the test of their 12 ability.’” Shad, 799 F.2d at 531. 13 After Counsel for both sides completed questioning Officer Hunt, the Court 14 inquired to clarify his testimony regarding why Officers Richmond and Hunt used 15 pain compliance techniques on Cedillo, and at what point Officer Hunt found Cedillo 16 to be noncompliant. (See, e.g., Tr. 245:18 (“What was the purpose for the infliction of 17 the pain?”), 245:23–24 (“But why was it done to begin with? Where was the 18 noncompliance?”).) Officer Hunt testified that he was afraid of what Cedillo could do 19 to the Officers, like “beginning to resist or try . . . to flee” or kick them. (Tr. 247:4–9.) 20 Finding Officer Hunt’s responses unsupported by the video evidence, the Court 21 continued: “We never saw any signs of either of those things happening [in the 22 videos], so I don’t know why it was that you thought that they might happen. Or is 23 that something that’s convenient for the purpose of the trial?” (Tr. 247:11–14.) 24 Officer Hunt did not answer the Court’s question. 25 Although the Court “expressed concerns” and “skepticism,” Shad, 799 F.2d 26 at 531, the Court acted within its discretion in questioning Officer Hunt to clarify his 27 testimony and appropriately provided him an opportunity to respond. That Officer 28 Hunt did not take the opportunity does not make the Court’s question prejudicial. 1 c. Questioning Noble and Officer Cuba 2 Defendants also point to the Court’s interruption of Defendants’ Counsel’s 3 questioning of Zelaya’s police practices expert, Jeff Noble, and to the Court’s 4 questioning of LAPD Officer Brian Cuba. (Mot. 7–8 (citing Tr. 337–38 (Noble), 482– 5 86 (Cuba)); see id. at 17–18, 20.) Each of the Court’s interventions in the questioning 6 of these witnesses was appropriately designed to clarify questions or testimony. 7 With respect to Noble, the Court properly required Counsel to rephrase a 8 question that assumed facts not in evidence, specifically assuming the incident videos 9 displayed Cedillo “becoming combative.” (Tr. 337:12–19 (Counsel: “Wouldn’t you 10 agree that the best way to gain control of somebody who’s becoming combative is to 11 get them into a prone position on the ground?”; Court: “Wait, wait, wait. Is there 12 evidence of him being combative? I have a problem with your question, the 13 hypothetical. Where is the combative part?”).) Counsel rephrased the question—“do 14 you see any indication that Mr. Cedillo is resisting”—and Noble continued his 15 testimony. (Id. at 337:20–338:5.) When Noble’s response began to stray toward the 16 original improper question, the Court appropriately redirected the witness to answer 17 the rephrased question, confining the witness to the Court’s evidentiary ruling. (Id. 18 at 338:7–10.) 19 Defendants object to the Court’s sarcasm: “His question was whether or not Mr. 20 Cedillo is resisting the efforts of the officers . . . to break his freakin’ arm. Was he 21 resisting that?” (Mot. 20.) But the use of sarcasm, and even isolated displays of 22 irritation or annoyance, do not amount to prejudicial misconduct. See Mostella, 23 802 F.2d at 361–62 (finding judge’s “sarcastic comments” did not overstep proper 24 judicial role); Poland, 659 F.2d at 894 (finding trial judge’s displays of irritation and 25 use of sarcasm were not prejudicial). Counsel completed his examination of Noble 26 without further interruption. (See Tr. 338–47.) 27 With respect to Officer Cuba, the Court questioned him only after Counsel for 28 both sides concluded their questioning. (See Tr. 482:10–483:25 (prompting Officer 1 Cuba to clarify his initial testimony—that a code “415” means “a man that’s acting -- 2 poses a threat to himself or others”—and instead testify that a code “415” means 3 merely “a disturbance”). However, when the Court asked why Cedillo was crying out 4 in pain on the videos, why Officer Cuba was telling Cedillo to “relax,” and why 5 Officer Cuba thought the pain compliance techniques were used in this case to 6 “de-escalate” the situation, Officer Cuba’s answers became nonresponsive. (See 7 Tr. 484:20–486:23.) Expressing understandable exasperation in the face of persistent 8 nonresponsive answers, the Court thanked and excused Officer Cuba. (Id. at 486:24– 9 25 (“Get out of here. Go. Thank you. Goodbye.”).)4 10 Although Defendants may not have preferred the Court to ask its questions, 11 even “quite pointed and intemperate” questioning does not necessitate a new trial 12 when it is for the purpose of “clarifying the evidence.” See United States v. Scott, 13 642 F.3d 791, 799–800 (9th Cir. 2011) (finding that judge’s “pointed” questioning was 14 not prejudicial where it was generally for the proper purpose of “clarifying the 15 evidence”); see also United States v. Laurins, 857 F.2d 529, 537–38 (9th Cir. 1988) 16 (finding judge’s expressed exasperation did not amount to judicial misconduct). 17 d. Questioning Flosi 18 Finally, Defendants cite the Court’s questioning of defense police practices 19 expert Edward Flosi. (Mot. 9–11, 15–16.) A court may question an expert just as it 20 may question any witness, to “clarify[] the evidence, confin[e] counsel to evidentiary 21 rulings, control[] the orderly presentation of the evidence, and prevent[] undue 22 repetition of testimony.” Mostella, 802 F.2d at 361–62. 23 The Court initially intervened during Defendants’ Counsel’s direct examination 24 of Flosi because Flosi’s answer had “gotten way away from [counsel’s] question,” 25 which was whether the Officers’ use of prone restraints on Cedillo, as seen in the 26 incident videos, was appropriate. (Tr. 576:4–24.) The Court restated Counsel’s 27 4 Defendants also object to the Court’s aside to Counsel after Officer Cuba was excused. (Mot. 18 28 (citing Tr. 487:3 (“Pathetic.”)).) But “cutting comments to counsel” will not generally mandate a new trial. Kern, 899 F.2d at 780. 1 question and Flosi answered that what he saw was appropriate. (Id. at 576:21–577:5.) 2 The Court then sought to clarify what Flosi saw in the videos that made prone 3 restraints appropriate, but Flosi did not answer. (Tr. 577:14 (“I’m sorry. What’s the 4 question, sir?”).) The Court did not repeat the question. (See id.) 5 Defendants next contend the Court improperly commented on Flosi’s 6 credibility. (See Mot. 15 (citing Tr. 577:15–17 (“You’re so in the bag. Why am I 7 bothering? All right. I have nothing.”)).) However, as noted, the Court’s expression of 8 exasperation does not warrant a new trial. See United States v. McDonald, 576 F.2d 9 1350, 1358 (9th Cir. 1978) (finding judge’s remarks that “were sharp, even sarcastic, 10 [did] not represent an abuse of discretion that warrants a new trial”). To the extent the 11 Court’s comment may have reflected skepticism or an appraisal of Flosi’s credibility, 12 Flosi was given ample opportunity to respond when Defendants’ Counsel resumed and 13 completed his inquiries uninterrupted. See Shad, 799 F.2d at 531 (noting that court 14 comments indicating skepticism are not improper when witness has opportunity to 15 respond). Moreover, the Court properly instructed the jury that they were the finders 16 of fact and should not read into any of the Court’s comments. See Robinson, 401 F.2d 17 at 252 (quoting Smith v. United States, 305 F.2d 197, 205 (9th Cir. 1962) (noting that a 18 court may comment on the credibility of a witness provided it clearly instructed the 19 jury that they determine the facts and may disregard the court’s comments)). 20 Defendants’ final objection is to the Court’s further questioning of Flosi after 21 Counsel completed their inquiries. (Mot. 9–11, 15–16, 19 (citing Tr. 596–601).) Once 22 again, the Court’s further questioning was appropriately designed to highlight and 23 clarify portions of Flosi’s testimony. See United States v. Parker, 241 F.3d 1114, 1119 24 (9th Cir. 2001) (stating that trial judge may “participate in the examination of 25 witnesses to clarify issues and call the jury’s attention to important evidence”). For 26 instance, Flosi testified: “We try to de-escalate when we can.” (Tr. 586:19 (emphasis 27 added).) The Court inquired further to highlight this testimony and clarify Flosi’s 28 independence as an expert, as his testimony suggested alignment with Defendants. 1 (See Tr. 596:2–21 (“So do you put yourself in that equation?”; “You said ‘we’ try to 2 de-escalate. And I’m wondering, [h]ow did you get into this situation?”).) When the 3 Court asked whether Flosi considered himself so “closely aligned with law 4 enforcement” that he “can no longer be objective,” Flosi answered that he did not, 5 which the Court accepted. (Tr. 596:16–21.) 6 Flosi also testified that the Officers’ use of the pain compliance techniques, the 7 take-down, and the two prone restraints were appropriate when Cedillo was resisting 8 the Officers, attacking and kicking at them, and potentially trying to escape. (See, 9 e.g., Tr. 576:4–10; 577:21–578:15, 590:7–11, 593:19–20.) The Court inquired to 10 clarify the basis for this opinion because the Court did not see Cedillo resisting, 11 attacking, kicking, or trying to escape in the incident videos presented at trial. (See 12 Tr. 597:4–601:21; id. at 600:13–19 (Court: “Where are you getting this understanding 13 from? Where are you getting this information from?” Witness: “From the material I 14 reviewed.” Court: “It’s not on the video.” Witness: “Unless the officers are narrating 15 the video, um, they wouldn’t have -- it would have to be in a statement.”).) 16 The Court was within its discretion in questioning Flosi to clarify and highlight 17 the evidence for the jury. See Parker, 241 F.3d at 1119. To warrant a new trial, the 18 judicial participation would need to be far more frequent and extreme than these 19 instances. See, e.g., Mostella, 802 F.2d at 361–62 (finding trial judge’s numerous 20 interruptions through a trial, including “extensive questioning” of expert witnesses 21 and “sarcastic comments,” did not merit a new trial); Handgards, 743 F.2d at 1289 22 (finding hostile comments and repeated interruptions did not rise to the level of 23 “unfairness” required to warrant a new trial). 24 2. Court Participation—Cumulative Effect 25 Having determined that none of the identified judicial interactions individually 26 rise to the level warranting a new trial, the Court also considers them together and in 27 light of the transcript as a whole. 28 1 Judicial words or actions in a trial, even when seemingly inappropriate, will not 2 warrant a new trial unless they “so persistently pervade the trial or, considered 3 individually or together, are of such magnitude that a courtroom climate unfair to the 4 defendant is disc[er]nible from the cold record.” See Robinson, 401 F.2d at 252 5 (quoting Smith, 305 F.2d at 205). This requires “an ‘extremely high level of 6 interference’ by the trial judge,” Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir. 1995), 7 such as where a court “dominate[s] questioning of the witnesses so as to preempt 8 counsel’s function,” Kennedy, 901 F.2d at 709 (citing Sit-Set, A.G. v. Universal Jet 9 Exch., Inc., 747 F.2d 921, 926 (4th Cir. 1984)); see United States v. Pena-Garcia, 10 505 F.2d 964, 966–67 (9th Cir. 1974) (finding judge “went too far” where he 11 continually interrupted counsel, threatened and intimidated witness and counsel, and 12 usurped prosecutor’s role). 13 Very few cases have found judicial misconduct reversible in the civil law area. 14 See Handgards, 743 F.2d at 1289. Indeed, the vast majority of cases conclude that the 15 judicial conduct at issue was not prejudicial, nor did it rise to the level requiring a new 16 trial. For instance, in Kennedy, the Ninth Circuit held that even though the district 17 judge’s “questioning was not marked by complete indifference” and instead was 18 sometimes “quite pointed and intemperate,” a new trial was not required. 901 F.2d 19 at 709. The court noted that the trial judge’s questioning filled only eight pages of a 20 400-page trial transcript and the “court [did not] dominate questioning of the 21 witnesses so as to preempt counsel’s function.” Id. In Ward v. Westland Plastics, Inc., 22 the Ninth Circuit found that although the judge’ conduct “borderline,” it did not 23 ultimately prejudice the plaintiff’s case in light of (1) the judge’s proper caution to the 24 jury not to take his questions or remarks as evidence, and (2) the plaintiff’s lack of 25 persuasive evidence on the ultimate issues. 651 F.2d 1266, 1271–72 (9th Cir. 1980). 26 And in Poland, even though it was a criminal case, the Ninth Circuit still held that the 27 trial judge’s impatience, irritation, and sarcasm were not prejudicial given that the 28 instances were relatively few when “[v]iewed against the very long record of 1 testimony,” and in light of the overwhelming evidence against defendants. 659 F.2d 2 at 892, 894. 3 This case fits easily within the above examples. While the Court’s questioning 4 was not at all times “marked by complete indifference” and may even have been 5 “quite pointed and intemperate,” the cumulative effect of the Court’s participation 6 cannot be said to be prejudicial when viewed against the transcript as a whole and the 7 abundant video evidence. As cited by Defendants, the Court’s comments and 8 questioning comprises only seventeen pages of a total 680 pages of trial transcript. 9 The Court questioned or engaged only four witnesses out of thirteen. These relatively 10 few interactions cannot be found to dominate the questioning or preempt Counsel’s 11 role. Rather, the Court’s questions appropriately sought to clarify questions or 12 responses, the Court afforded witnesses an opportunity to respond to the Court’s 13 questions, and the Court did not state an opinion on the ultimate issues. See Shad, 14 799 F.2d at 531 (finding no abuse of discretion based on similar findings). 15 Additionally, the Court twice instructed the jury not to read into anything the 16 Court said or did that it had any opinion on the evidence or the verdict. (See 17 Tr. 117:14–16, 614:8–10 (“Please do not read into these instructions or anything that I 18 may have said or done that I have an opinion regarding the evidence or what your 19 verdict should be.”).) These instructions helped alleviate “any appearance of 20 impartiality the [Court’s] questioning may have conveyed.” Kennedy, 901 F.2d 21 at 709; see United States v. Morgan, 376 F.3d 1002, 1008–09 (9th Cir. 2004) (finding 22 questioning that was “inappropriately extensive and suggestive” did not warrant 23 reversal in light of the court’s curative instructions given both before and after 24 questioning). 25 Defendants rely on Maheu v. Hughes Tool Co., 569 F.2d 459 (9th Cir. 1977), to 26 argue the Court’s conduct was so prejudicial it could not be cured by appropriate jury 27 28 1 instructions.5 (See Mot. 13, 19; Reply 3–4.) But Defendants do not benefit from this 2 plainly distinguishable case. In Maheu, a defamation case, the central issue was the 3 plaintiff’s credibility. Despite voluminous conflicting evidence on the plaintiff’s 4 credibility and the plaintiff having been “thoroughly and convincingly impeached,” 5 the trial judge gave what amounted to a personal glowing character reference for the 6 plaintiff immediately before the jury retired to deliberate. 569 F.2d at 471–72. The 7 judge additionally had his glowing character reference transcribed and included with 8 the jury’s written instructions for their reference during deliberations. Id. at 472. 9 This case is nothing like Maheu. Here, Defendants’ credibility was not the 10 controlling issue; it was but one factor among many. Also, the jury in this case was 11 not limited in their deliberations to the parties’ testimony; rather, they had the benefit 12 of extensive video evidence of the incident from multiple cameras and angles. 13 Moreover, the Court seldom, if ever, spoke directly to the ultimate issues, and clearly 14 instructed the jury, not once but twice, not to read into anything the Court said or did 15 that it had any opinion on the evidence or outcome. “Juries are presumed to follow 16 jury instructions.” Scott, 642 F.3d at 800. 17 In sum, Defendants fail to establish that the Court’s comments and questions, 18 considered individually or together, rise to the level of prejudicial judicial misconduct 19 that warrants a new trial. 20 21 22 5 Defendants also rely extensively on Rivas v. Brattesani, 94 F.3d 802 (2d Cir. 1996). (See Mot. 14, 23 17, 18, 21.) However, Rivas is a case out of the Second Circuit, and is therefore not binding on this Court. See generally Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001) (discussing that 24 precedent in a Circuit Court of Appeals binds all courts within that particular circuit). Nevertheless, 25 Rivas is inapposite here. The court in Rivas found the trial judge’s statements carried more than the usual import because the parties told “sharply divergent stories about their encounter.” Id. at 805 26 (describing plaintiff’s account that the officer came into a restaurant and began beating plaintiff without provocation, in contrast with defendant’s account that he conducted a routine stop and frisk 27 of plaintiff on a street corner). Here, in contrast, the parties agree on the majority of facts and the 28 jury could rely on extensive video evidence of the incident. Thus, the Court’s comments and questioning in this case did not carry the outsized weight present in Rivas. 1 B. Damages Award Not Excessive 2 A court may also grant a new trial where the jury awards excessive damages. 3 Banks-Reed v. Mateu, Nos. 19-17444, 20-17085, 2022 WL 486607, at *2 (9th Cir. 4 Feb. 17, 2022). However, in the Ninth Circuit, the court affords “substantial 5 deference” to a jury’s findings as to the appropriate amount of damages, Del Monte 6 Dunes at Monterey, Ltd. v. City of Monterey, 95 F.3d 1422, 1435 (9th Cir. 1996), 7 unless it is “clearly not supported by the evidence,” In re First All. Mortg. Co., 8 471 F.3d 977, 1001 (9th Cir. 2006). Thus, in evaluating a verdict for excessiveness, a 9 court reviews the evidence in a light most favorable to the prevailing party, disturbing 10 only those awards that it concludes are “grossly excessive or monstrous” or “based on 11 passion or prejudice.” Lambert v. Ackerley, 180 F.3d 997, 1011 (9th Cir. 1999) (en 12 banc). 13 Defendants argue the Court’s prejudicial misconduct influenced the jury to 14 award excessive damages based on inflamed passions. (Mot. 21–22.) In light of the 15 conclusion that the Court’s appropriate participation in the trial was not prejudicial, 16 the Court’s conduct correspondingly did not inflame the jury’s damages award. The 17 Court finds the jury award is supported by the evidence and is not “grossly excessive 18 or monstrous.” Lambert, 180 F.3d at 1011. Notably, it falls far short of the figure 19 Zelaya suggested in closing arguments. (See Tr. 650:24 (suggesting $20 million).) 20 As nothing justifies disturbing the substantial deference due to the jury’s findings as to 21 the appropriate amount of damages, the Court declines to overturn the jury’s verdict. 22 C. Defendants’ Rule 59(e) Motion 23 Defendants also move to “vacate/amend/alter the judgment” under Rule 59(e), 24 “[f]or the same reasons” as in its Motion for a New Trial. (Mot. 22.) As such, “[f]or 25 the same reasons” discussed above, the Court declines to grant the “extraordinary 26 remedy” of Rule 59(e). See Wood v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 2014) (“[A] 27 Rule 59(e) motion is an extraordinary remedy, to be used sparingly in the interests of 28 finality and conservation of judicial resources.” (internal quotation marks omitted)). 1 V. CONCLUSION 2 For the reasons discussed above, the Court DENIES Defendants’ Motion for a 3 | New Tnial and/or Motion to Alter or Amend the Judgment. (ECF No. 133.) 4 5 IT IS SO ORDERED. 6 7 May 24, 2024 < 8 Yi

10 OTIS D GHT, Il

UNITED STATES’DISTRICT JUDGE

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