United States District Court, S.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR NEW TRIAL
(DOC. NO. 166)
ANTHONY J. BATTAGLIA UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiff Donald
Patton's (“Patton”) motion for new trial,
which was heard on September 28, 2017. (Doc. Nos. 166, 180.)
Defendants First Light Management, Inc., and Jaleh Hanassab
(collectively referred to as “Defendants”) oppose
the motion. (Doc. No. 173.) As will be explained in more
detail below, the Court DENIES Patton's
motion for new trial.
asserts claims for housing discrimination under the Fair
Housing Act, Fair Employment and Housing Act, and the Unruh
Act. (Doc. No. 166-1 at 6.) Patton is a Native American
member of the Olgala Sioux tribe. (Doc. No. 43-1 ¶ 1.)
Through his declaration, Patton also establishes that he was
diagnosed with schizophrenia in 2004 and is a recovering
alcoholic, though he has not consumed alcohol or
non-prescription drugs since December 2005. (Id.
¶¶ 1, 2.)
October of 2007, Patton applied for and was approved as a
candidate for Section 8 housing, sponsored by the United
States Department of Housing and Urban Development
(“HUD”), the San Diego IMPACT program, and the
San Diego Housing Commission. (Doc. No. 15 ¶ 14.)
Thereafter, Patton entered into a lease with Defendant Jaleh
Hanassab (“Hanassab”), to reside at 1440 Lincoln
Avenue, Apartment 10 in San Diego (“the
Property”). (Doc. No. 43-3 at 92-100.)
first several years, Patton states that he resided at the
Property without issue, however in late 2011, he contends
that he became the subject of discrimination by Mr. Lonnie
and Mrs. Darleen Thomas-independent contractors of First
Light who performed maintenance and management duties
beginning in June 2011. (Id. at 83; Doc. No. 38-3 at
50-51; Doc. No. 43-1 ¶ 8.) One interaction was when
Patton told Mr. Thomas that he was Native American, and Mr.
Thomas allegedly stated “I would hate to see you with
your war paint on.” (Doc. No. 38-3 at 51.)
other interactions included: (1) in April of 2012 when Mr.
Thomas approached Patton and purportedly told him to
“fucking move out, ” (Doc. No. 43-1 ¶ 13);
(2) in May of 2012 when Mr. Thomas allegedly told Patton
“We don't want your kind here, ” (Doc. No.
38-3 at 63); and (3) in July of 2012 when Mr. Thomas
allegedly gestured to Patton with a “limp wrist”
and in a mock, effeminate manner said, “Oh, honey,
you're home, ” (Id. at 52-53).
in August of 2012, Patton alleges that he was served with a
series of improper and unlawful notices to vacate. (Doc. No.
54 at 4.) Patton received the first notice on August 23,
2012, from Mr. Thomas, however the notice did not state a
reason for its issuance, and Patton was not informed of why
he received the notice. (Doc. No. 43-3 at 122.) On September
11, 2013, Patton was served with another 60-day notice to
move out, (Id. at 130), and in November of 2013, he
received a 90-day notice of termination of tenancy stating
that Hanassab was opting out of the Section 8 housing
program, (Id. at 134).
18, 2014, Patton initiated this lawsuit against Defendants.
(Doc. No. 1.) Subsequently, Patton's motion for leave to
proceed in forma pauperis was granted. (Doc. No. 4.) On
September 29, 2014, Patton filed his amended complaint. (Doc.
No. 15.) On October 29, 2014, Defendants filed a motion to
dismiss, which was granted in part and denied in part. (Doc.
Nos. 16, 22.) Specifically, Patton's causes of action
under section 1982 of the Civil Rights Act and the California
Disabled Persons Act were dismissed with leave to amend.
(Doc. No. 22.) Thereafter, Defendants filed a motion for
partial summary judgment on March 22, 2016, (Doc. No. 38),
which was denied on August 29, 2016, (Doc. No. 54).
case then proceeded to trial in March of 2017. (Doc. No.
126.) The trial lasted seven days. (Doc. No. 141.) After
deliberating for over a day, the jury came back with a
verdict in favor of Defendants. (Doc. No. 143.) The verdict
form filled out by the presiding juror checked
“No” under the question “Has Plaintiff
proved by a preponderance of the evidence that his race was
the sole reason for the Defendants' attempts seeking
termination of his tenancy?” (Doc. No. 149 at 2.) Under
Question 3 “Has Plaintiff proved by a preponderance of
the evidence that his race was a motivating factor in
Defendants' attempts seeking termination of his
tenancy?” the presiding juror checked
“Yes.” (Id.) However, under Question 4
“Have Defendants proved by a preponderance of the
evidence that Defendants' attempts seeking termination of
Plaintiff's tenancy were also motivated by a lawful
reason?” the presiding juror checked “Yes.”
(Id. at 3.)
March 31, 2017, Patton filed an ex parte motion for leave to
proceed in forma pauperis and waiver of transcript costs,
(Doc. No. 151), which the Court granted on April 11, 2017,
(Doc. No. 153). On May 24, 2017, Patton filed the instant
matter, his motion for new trial and request to alter or
amend judgment. (Doc. No. 166.) This Order now follows.
Motion for a New Trial Under Rule 59
Rule of Civil Procedure (“FRCP”) 59(a) provides
that a “court may, on motion, grant a new trial on all
or some of the issues-and to any party . . . after a jury
trial, for any reasons for which a new trial has heretofore
been granted in an action at law in federal court[.]”
Fed.R.Civ.P. 59(a). The Ninth Circuit has held that
“[t]he trial court may grant a new trial only if the
verdict is contrary to the clear weight of the evidence, is
based upon false or perjurious evidence, or to prevent a
miscarriage of justice.” Molski v. M.J. Cable,
Inc., 481 F.3d 724, 729 (9th Cir. 2007) (internal
quotations and citation omitted). Upon a motion for new trial
a “district judge [has] the right, and indeed the duty,
to weigh the evidence as he saw it, and to set aside the
verdict of the jury, even though supported by substantial
evidence, where, in his conscientious opinion, the verdict is
contrary to the clear weight of the evidence . . . .”
See Murphy v. City of Long Beach, 914 F.2d 183, 187
(9th Cir. 1990). The court's control over a trial is
illustrated by the court's sua sponte power to
grant a new trial on the grounds not alleged by a party.
See Fed. R. Civ. P. 59(d).
Grounds for Amending or Altering a Verdict
courts have “considerable discretion” when
addressing motions to amend a judgment under Rule 59(e).
Turner v. Burlington N. Santa Fe R.R Co., 338 F.3d
1058, 1063 (9th Cir. 2003). However, “a Rule 59(e)
motion is an ‘extraordinary remedy, to be used
sparingly in the interests of finality and conservation of
judicial resources.'” Wood v. Ryan, 759
F.3d 1117, 1121 (9th Cir. 2014) (citing Kona Enters.,
Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir.
2000)). Typically, a district court may grant a Rule 59(e)
motion where it “is presented with newly discovered
evidence, committed clear error, or if there is an
intervening change in controlling law.” Id.
(citing McDowell v. Calderon, 197 F.3d 1253, 1255
(9th Cir. 1999) (en banc)).
Patton's Motion is Not Untimely
threshold issue, the Court addresses Defendants'
contention that Patton's present motion is untimely.
(Doc. No. 173 at 12.) A Rule 59 motion must be filed no later
than 28 days after the entry of judgment. Fed.R.Civ.P. 59(b),
(e). The jury found in favor of Defendants on March 24, 2017,
and judgment was filed in this case on March 27, 2017. (Doc.
Nos. 149, 150.) Thus, Patton's 28 day period for filing a
motion for new trial lapsed in late April. Patton filed his
motion on May 24, 2017. (Doc. No. 166.)
on the foregoing, Defendants are correct that within the
parameters of Rule 59, Patton's motion is untimely.
Moreover, the Court is cognizant that generally courts do not
have discretion to extend the deadline for filing such a
motion. See Tillman v. Assoc. of Apartment Owners of Ewa
Apartments, 234 F.3d 1087, 1089 (9th Cir 2000); see
also Bealer v. Rios, No. 1:12-cv-01516-DAD-EPG-PC, 2017
WL 915270, at *2 (E.D. Cal. Mar. 7, 2017).
the Court notes that on April 11, 2017, the Court on its own
initiative, allowed Patton until May 24, 2017, to file his
post-trial motions. (Doc. No. 153 at 3.) Consequently, the
Court now finds itself in a curious situation as the Court
provided Patton an extension of time past the twenty-eight
day deadline. However, in an effort to decide this motion on
the merits rather than deny it based on the Court's own
procedural error, the Court will treat Patton's untimely
Rule 59 motion as a motion for relief from judgment under
Rule 60(b). See Mt. Graham Red Squirrel v. Madigan,
954 F.2d 1441, 1463 n.35 (9th Cir. 1992) (“An untimely
motion for reconsideration is construed as a motion based on
Fed.R.Civ.P. 60(b).”); see also Magarrell v.
Mangis, No. CIV S-04-2634 LKK/DAD P, 2012 WL 4468206, at
*3 (E.D. Cal. Sept. 25, 2012) (“The court does have the
power to treat an untimely motion for a new trial as a motion
for relief from a final judgment under Rule 60(b), and will
do so.”); Bailey v. United States, 250 F.R.D.
446, 448 (D.Ariz. 2008) (interpreting untimely motion for new
trial as motion for relief from final judgment under Rule
60(b)). Furthermore, the Court employs Rule 1, and construes
the rules so that they be employed by the Court to
“secure the just, speedy, and inexpensive determination
of every action and proceeding.” Fed.R.Civ.P. 1.
as a motion under Rule 60(b) “must be made within a
reasonable time” and Patton's motion was filed only
two months after the jury returned their verdict,
Patton's motion is timely. Fed.R.Civ.P. 60(c)(1).
filed objections to Patton's affidavit and exhibits
submitted in support of his motion for new trial on June 15,
2017, as a separate document. (Doc. No. 175.) Specifically,
Defendants object to the (1) Durana Affidavit; (2) Lepine
Affidavit; and (3) Patton's flow chart. (Id.)
the Court notes that per Judge Battaglia's Civil Case
Procedures “[o]bjections relating to the motion should
be set forth in the parties' opposition or reply. No
separate statement of objections will be allowed.” Civ.
Case. Proc. II.A. Thus, Defendants' objections are
procedurally defective. However, finding that the majority of
Defendants' objections mirror the Court's concerns,
the Court will address each objection in turn.
Defendants state that the Durana Affidavit is inadmissible
and should be stricken based entirely on Rule 606(b)(1).
(Doc. No. 175 at 2-4.) In response, Patton asserts that the
affidavit falls under an exception to the foregoing
exclusionary rule. (Doc. No. 177 at 2.)
clarity, Ms. Durana's affidavit states that (1) she
believes that Patton was the victim of racial discrimination
by Defendants; (2) after she confirmed her verdict
with the Court, she asked the Court what would have happened
if she refused to sign the verdict form as she was unaware
that she could refuse to join in the jury's verdict; (3)
she did not receive sufficient instruction about any options
she had as a juror who did not agree with the majority; (4)
she joined the jury's verdict and signed the verdict form
because she was convinced of two things-first that by finding
that race was a motivating factor, the jurors had established
wrong doing on the part of Defendants and two, she was
assured by her fellow jurors that Patton would get treatment
for the harm he was inflicted through governmental services;
(5) Ms. Durana observed the jury's disregard for the
Court's limiting instruction about hearsay as to the
verbal complaints-the jury took the complaints as true and
that formed the basis for the determination that Defendants
had legal grounds to terminate Patton's lease; (6)
several of the jurors agreed that Patton should win the case,
but only be awarded nominal damages because they did not want
to support a “money grab”; and (7) the jury
discussed two matters that were not presented at trial-that
Patton would receive services from the government and that
since he was registered as a tribal member, he collects
casino money-both of these statements were given
“significant consideration” by the jury. (Doc.
No. 166-2 at 2-3.) Federal Rule of Evidence 606 states that
During an inquiry into the validity of a verdict or
indictment, a juror may not testify about any statement made
or incident that occurred during the jury's
deliberations; the effect of anything on that juror's or
another juror's vote; or any juror's mental processes
concerning the verdict or indictment. The court may not
receive a juror's affidavit or evidence of a juror's
statement on these matters.
Fed. R. Evid. 606(b)(1). Three exceptions to Rule 606 exist
that allow a juror to testify about the validity of a
verdict: (1) “extraneous prejudicial information was
improperly brought to the jury's attention”; (2)
“an outside influence was improperly brought to bear on
any juror”; or (3) “a mistake was made in
entering the verdict on the verdict form.” Fed.R.Evid.
to our judicial system's administration of justice is a
fair and impartial jury. United States v. Bagnariol,
665 F.2d 877, 884 (9th Cir. 1981). A jury should reach a
verdict that is based solely upon the evidence admitted at
trial, “unaffected by extrinsic facts.”
Id. A juror's communication of extraneous
information implicates the Confrontation Clause.
Sassounian v. Roe, 230 F.3d 1097, 1108 (9th Cir.
2000). If a court determines that a juror has improperly
brought extraneous information to the jury's attention,
the inquiry must then focus on whether “there is a
reasonable possibility that the extrinsic material could have
affected the verdict.” United States v.
Keating, 147 F.3d 895, 900 (1988) (citing Dickson v.
Sullivan, 849 F.2d 403, 405 (9th Cir. 1988)).
the clear language of the rule, the Court finds that Ms.
Durana's affidavit represents exactly what Rule 606 seeks
to exclude. Patton's motion for new trial based on the
affidavit at issue seeks to demonstrate that the jurors found
for Defendants as they took the complaints for the truth of
the matter asserted and believed that Patton would receive
casino money or financial assistance from the government.
However, “parsing how jurors considered the evidence or
their mental states while hearing testimony is exactly what .
. . the plain text of Rule 606(b) seek to prevent.”
United States v. Leung, 796 F.3d 1032, 1036 (9th
Cir. 2015); see also United States v. Davis, 960
F.2d 820, 828 (9th Cir. 1992) (describing as
“meritless” a motion for a new trial based on a
juror's statement in an interview that “[f]rom the
first day I knew [the defendant] was guilty”).
as the various statements in Ms. Durana's affidavit very
clearly fit within the confines of Rule 606's
exclusionary rule, the central issue hinges on whether the
affidavit is subject to Rule 606's various exceptions.
Patton steadfastly argues that the affidavit should be
accepted as Ms. Durana is seeking to testify to external
matters that tainted the verdict. (Doc. No. 177 at 2.)
Specifically, Patton argues that the statements that Patton
would receive governmental assistance and casino money are
plain objective facts that are extraneous prejudicial
information. (Id. at 4-5.) The Court disagrees with
purposes of this Order, our analysis of Rule 606(b) is guided
by the Supreme Court case: Tanner v. United States,
483 U.S. 107 (1987). In Tanner, the Court addressed
the admissibility of a juror affidavit that argued that
jurors drank alcohol, smoked marijuana, conducted drug deals,
slept throughout the trial, and ingested cocaine.
Id. at 115-16. The Supreme Court highlighted that
“the near-universal and firmly established common-law
rule in the United States flatly prohibited the admission of
juror testimony to impeach a jury verdict.”
Id. at 117. The Court then listed several cases that
embodied the “extraneous influence” exception. In
Mattox v. United States, 146 U.S. 140, 148-49
(1892), the Supreme Court held admissible the testimony of
jurors describing how they heard and read prejudicial
information not admitted into evidence. Additionally, in
Parker v. Gladden, 385 U.S. 363, 365 (1966), the
court allowed juror testimony about various comments a
bailiff made about the defendant to a juror. Further, in
Remmer v. United States, 347 U.S. 227, 228-30
(1954), the court concluded that a bribe offered to a juror
was extraneous ...