Humberto Amezcua v. Gerard Boon


FILED NOT FOR PUBLICATION NOV 19 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT HUMBERTO AMEZCUA and OCTAVIO No. 17-15882 RENE VAZQUEZ CORNEJO, D.C. No. Plaintiffs-Appellants, 2:13-cv-01608-APG-CWH v. MEMORANDUM* GERARD BOON; et al., Defendants-Appellees. Appeal from the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding Argued and Submitted November 14, 2018 San Francisco, California Before: THOMAS, Chief Judge, M. SMITH, Circuit Judge, and BUCKLO,** District Judge. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Elaine E. Bucklo, United States District Judge for the Northern District of Illinois, sitting by designation. Humberto Amezcua and Octavio Rene Vazquez Cornejo (“Plaintiffs”) appeal the district court’s denial of their motion for a new trial on a negligence claim against Gerard Boon and Lou Ann Boon (“Defendants”) arising from a 2011 motor vehicle accident in which Defendants, driving a semi-truck, rear-ended Plaintiffs’ vehicle. Plaintiffs argue the district court committed numerous errors that warrant a new trial. We have jurisdiction under 28 U.S.C. §1291. We review for abuse of discretion a district court’s denial of a Rule 59 motion for a new trial. Lam v. City of San Jose, 869 F.3d 1077, 1084 (9th Cir. 2017) (quoting Molski v. M.J. Cable, Inc., 481 F.3d 724, 728 (9th Cir. 2007)). We affirm. Because the parties are familiar with the history of this case, we need not recount it here. 1. The district court did not force Plaintiffs to withdraw their damages claim for medical expenses. Plaintiffs voluntarily and strategically withdrew these claims during the hearing on Defendants’ motion to strike when it appeared the court was leaning in favor of granting Defendants’ motion. 2. Plaintiffs’ witness disclosures did not meet the requirements of Federal Rule of Civil Procedure 26(a)(2)(C)(ii). Although the section requires “a summary of the facts and opinions to which the witness is expected to testify,” Plaintiffs provided only a general overview of the topics upon which each of their four non- retained expert witnesses would testify. Id. 2 3. The district court properly granted summary judgment on the negligent entrustment claim because there is no evidence that corporate defendants had actual knowledge that either Defendant had previously falsified the logs, or that corporate defendants should have known of their practice of falsifying the logs. See Mills v. Cont’l Parking Corp., 475 P.2d 673, 674 (Nev. 1970) (negligent entrustment standard requires a defendant knew or should have known that entrustment created an unreasonable risk of harm to others). 4. The court’s question during voir dire regarding whether any of the jurors had “witnessed a car accident that [they] believed was staged” was not improper. It was not inflammatory, was asked only once, and was about an issue likely to and which, indeed, did arise during trial. Further, no authority provides that the court’s failure to mention Defendants’ burden of proof during voir dire ...

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