FILED

NOT FOR PUBLICATION NOV 16 2015

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KIMBERLY LUONG; et al., No. 13-16305

Plaintiffs - Appellants, D.C. No. 3:11-cv-05661-MEJ

v.

MEMORANDUM*

CITY AND COUNTY OF SAN

FRANCISCO POLICE DEPARTMENT;

et al.,

Defendants - Appellees.

Appeal from the United States District Court for the Northern District of California Maria-Elena James, Magistrate Judge, Presiding**

Submitted October 20, 2015*** San Francisco, California

Before: WALLACE, SILVERMAN, and CHRISTEN, Circuit Judges.

Kimberly Luong and Vicky Luong appeal from the jury verdict in their 42

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The parties consented to proceed before a magistrate judge. See 28 U.S.C. § 636(c). ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). U.S.C. § 1983 action alleging excessive force claims against various officers of the

San Francisco Police Department. We have jurisdiction under 28 U.S.C.

§ 1291. We affirm.

The district court properly granted summary judgment on Plaintiff Kimberly

Luong’s unlawful arrest and Plaintiff Vicky and Kimberly Luong’s seizure claims

because Plaintiffs failed to a raise genuine dispute of material fact as to whether

defendants had probable cause to seize the video camera, given that the officers

were working as a team and collectively possessed knowledge that the camera was

potential evidence, and whether defendants had probable cause to arrest Plaintiffs

under California Penal Code § 148(a)(1) for obstructing defendants in the

performance of their duties at the crime scene. See Heinemann v. Satterberg, 731

F.3d 914, 916 (9th Cir. 2013) (setting forth standard of review); see also Riley v.

California, 134 S. Ct. 2473, 2494 (2014) (explaining a “well-recognized

exception” to this warrant requirement of the Fourth Amendment is that the

“exigencies of the situation make the needs of law enforcement so compelling that

[a] warrantless . . . [seizure] is objectively reasonable under the Fourth

Amendment”); United States v. Ramirez, 473 F.3d 1026, 1032-33 (9th Cir. 2007)

(explaining this court has applied the collective knowledge doctrine “regardless of

whether [any] information [giving rise to probable cause] was actually

2 13-16305 communicated to” the officer performing the arrest; suggesting, but not requiring,

communication among officers as a way to distinguish which officers are part of an

investigation, and which are not); see also Cal. Pen. Code § 148(a)(1) (making a

violation every person who “willfully resists, delays, or obstructs any . . . peace

officer . . . in the discharge or attempt to discharge any duty of his or her office or

employment”).

The district court did not abuse its discretion in denying Plaintiffs’ oral

request for leave to amend their complaint to add a First Amendment retaliation

claim because Plaintiffs unduly delayed in seeking amendment so close to the trial

date and Defendants would have been prejudiced had leave to amend been granted.

See Hall v. City of Los Angeles, 697 F.3d 1059, 1079 (9th Cir. 2012) (setting forth

standard of review); see also Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir.

2004) (explaining that a district court takes into account five factors in determining

whether to grant leave to amend: “bad faith, undue delay, prejudice to the opposing

party, futility of amendment, and whether the plaintiff has previously amended the

complaint”).

Despite what Plaintiffs contend, the district court did not abuse its discretion

in its various in limine rulings. See United States v. Dorsey, 677 F.3d 944, 951

(9th Cir. 2012) (setting forth standard of review for in limine rulings). Evidence of

3 13-16305 the stabbing was relevant to the jury’s understanding of the significance of the

camera as evidence, and was not unduly prejudicial given that the video camera

itself had footage of evidence related to the stabbing, e.g. a jacket with blood

soaking in the bathtub. See Fed. R. Evid. 401, 402, 403. Additionally, the district

court properly excluded evidence of other citizen complaints, investigation, and

findings as impermissible character evidence as Plaintiffs failed to proffer a proper

grounds for its admissibility. See Fed. R. Evid. 404(a). The district court properly

excluded the police report as inadmissible hearsay, see Fed. R. Evid. 801, and the

voluminous police training materials as needlessly cumulative since Plaintiffs had

already read substantial portions of the materials into the record, see Fed. R. Evid.

403. Lastly, the district court properly excluded testimony about the use of police

force logs since Plaintiffs failed to demonstrate that these force logs were

applicable in this case and thus the force logs were irrelevant. See Fed. R. Evid.

402.

The district court did not abuse its discretion in its instruction to the jury,

and its rejection of Plaintiffs’ numerous proposed jury instructions. See United

States v. Hofus, 598 F.3d 1171, 1174 (9th Cir. 2010) (setting forth standard of

review). The district court properly instructed the jury that the seizure of the

camera was not an issue at trial and that the officers had authority to seize the

4 13-16305 camera. Without the instruction, the jury would have been confused or misled into

believing that these issues were not resolved. The district court also properly

instructed the jury to consider Plaintiffs’ resistance to the police’s attempts to seize

evidence because the Model Instructions only mentioned the Plaintiffs’ resistance

to arrest.

To the extent that Plaintiffs sufficiently raised this issue on appeal, the

district court did not err in granting Defendants’ motion for judgment as a matter

of law at the close of evidence because Plaintiffs either failed to show personal

participation, or actionable conduct on the part of Officers Ciudad, Moriyama and

Chea as to certain excessive force claims brought by Plaintiffs. See Torres v. City

of Los Angeles, 548 F.3d 1197, 1205-06 (9th Cir. 2008) (setting forth standard of

review); see also Lacey v. Maricopa County, 693 F.3d 896, 915-16 (9th Cir. 2012)

(en banc) (liability for violation of a constitutional right requires defendants’

personal participation in the violation).

The district court did not abuse its discretion in denying Plaintiffs’ motion

for new trial because the jury verdict was supported by substantial evidence. See

Kode v. Carlson, 596 F.3d 608, 611 (9th Cir. 2010) (setting forth standard of

review); Mueller v. Auker, 700 F.3d 1180, 1193-94 (9th Cir. 2012) (“The district

court’s denial of a motion for a new trial is reversible only if the record contains no

5 13-16305 evidence in support of the verdict or if the district court made a mistake of law.”)

(citation and internal quotation marks omitted)). Specifically, the undisputed

evidence shows that Vicky and Kimberly refused to hand over the camera to

defendants, when asked, and prevented the officers from obtaining the camera,

which the defendants had a lawful right to seize. The evidence further shows that

Kimberly and Vicky were resisting arrest, prompting defendants to use force to

subdue them. There was no evidence presented that the officers used more force

than what was needed. Nor did the evidence support Kimberly’s or Vicky’s

account of the force used to arrest them. Plaintiffs’ arguments to the contrary rest

mainly on a credibility determination, which is not reviewable on appeal.

The district court did not abuse its discretion in awarding costs against

Plaintiffs because the cost award was modest, Plaintiffs’ case did not present issues

of substantial public importance, and Plaintiffs did not demonstrate that they could

not otherwise pay the costs if subjected to a payment plan. See Martin v. Cal.

Dep’t. of Veteran Affairs, 560 F.3d 1042, 1053 (9th Cir. 2009) (setting forth

standard of review); cf. Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236,

1248-49 (9th Cir. 2014) (no abuse of discretion in denying relatively modest cost

award when, among other things, plaintiff had limited financial resources, the case

present issues of substantial importance regarding FMLA notice, and chilling

6 13-16305 effect on future FMLA actions).

Since Plaintiffs did not demonstrate any constitutional violations, Plaintiffs’

arguments regarding the dismissal of its state law claim under Cal. Civ. Code

§ 52.1 are moot.

Since Plaintiffs did not raise any arguments concerning the false arrest of

Vicky in their Opening Brief, we deem that issue waived on appeal. See Cruz v.

Int’l Collection Corp., 673 F.3d 991, 998 (9th Cir.2012) (“We review only issues

which are argued specifically and distinctly in a party's opening brief.” (citation

and internal quotation marks omitted)).

AFFIRMED.

7 13-16305

FILED

NOV 16 2015

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

Kimberly Luong et al. v. City & County of San Francisco et al., 13-16305

CHRISTEN, Circuit Judge, dissenting:

I respectfully dissent from the portion of the court’s disposition affirming

summary judgment as to the Luongs’ unlawful arrest and seizure claims. Our

circuit has only applied the collective knowledge doctrine where there has been

some communication between officers working together on an investigation.

United States v. Ramirez, 473 F.3d 1026, 1032 (9th Cir. 2007) (“[W]e have been

willing to aggregate the facts known to each of the officers involved at least when

there has been communication among agents.” (internal quotation marks,

alterations, and citations omitted)). Here the district court correctly identified that

there was a triable issue of fact concerning whether the officers who saw the

camera being used inside the home communicated with the officers who seized the

camera and arrested the Luongs. The district court was under the impression that

this issue of fact did not prevent the entry of summary judgment because it read

Ramirez to permit application of the collective knowledge doctrine whether there

had been communication or not. Because that ruling represents an expansion of

the doctrine that our court has never endorsed, I would reverse this portion of the

district court’s order and remand for further proceedings.