                            NOT FOR PUBLICATION                          FILED
                    UNITED STATES COURT OF APPEALS                        JAN 3 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

DONALD OKADA,                                   No.    17-56007

      Plaintiff-counter-                        D.C. No.
      defendant-Appellee,                       8:15-cv-01449-JLS-KES

 v.
                                                MEMORANDUM*
MARK WHITEHEAD,

      Defendant-counter-claimant-
      Appellant.

                   Appeal from the United States District Court
                       for the Central District of California
                   Josephine L. Staton, District Judge, Presiding

                          Submitted December 6, 2018**
                              Pasadena, California

Before: RAWLINSON and BEA, Circuit Judges, and RICE,*** Chief 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 Thomas O. Rice, Chief United States District Judge
for the Eastern District of Washington, sitting by designation.
      This case involves a dispute between two business partners, Donald Okada

and Mark Whitehead, over the terms of a settlement agreement they entered into

related to their joint real estate investments. Because the parties are familiar with

the facts of this case, we repeat them only as necessary to explain our decision.

Okada filed the instant lawsuit against Whitehead, alleging claims for breach of

contract, breach of fiduciary duty, fraud, and equitable indemnification. Okada also

sought punitive damages for his breach of fiduciary duty and fraud claims.

Whitehead filed counterclaims for breach of contract and breach of the implied

covenant of good faith and fair dealing. Before trial, the district court granted partial

summary judgment to Okada on a legal question related to the interpretation of

Section 1.5 of the Settlement Agreement. At trial, the jury found in favor of Okada

on all of his claims, and against Whitehead on all of his counterclaims. The jury

also awarded punitive damages to Okada.

      Whitehead challenges only two issues on appeal: (I) the district court’s

decision to admit evidence that Whitehead made disparaging remarks about Okada,

and (II) the district court’s interpretation of the Settlement Agreement in its partial

summary judgment order.

                                           I.

      Whitehead argues that the jury’s verdict in this case was “irredeemably

tainted” by the district court’s decision to allow into evidence his statements


                                           2
describing Okada as a “Jap” and a “[d]umb ass devil” who “thinks he can commit

Hari-Kari and drive his plane into a ship and survive.”

      While the claims in this diversity case arise out of California law, the Federal

Rules of Evidence govern the admissibility of evidence at trials conducted in federal

court. See Primiano v. Cook, 598 F.3d 558, 563 (9th Cir. 2010). Under the Federal

Rules, evidence is “relevant” if “it has any tendency to make a fact more or less

probable than it would be without the evidence,” and “[that] fact is of consequence

in determining the action.” Fed. R. Evid. 401. But a court may exclude otherwise

relevant evidence “if its probative value is substantially outweighed by a danger of .

. . unfair prejudice.” Fed. R. Evid. 403. “[I]n determining whether the district court

abused its discretion in applying [these rules], [reviewing courts] employ a ‘highly

deferential’ standard of review, reversing only if the exercise of discretion was

‘manifestly erroneous and prejudicial.’”       Microsoft Corp. v. Motorola, Inc., 795

F.3d 1024, 1056 (9th Cir. 2015) (internal quotations and citations omitted).

      The disparaging remarks in this case were properly admitted because they

were highly relevant to contested issues at trial. First, the remarks were relevant to

whether Whitehead acted with malice for purposes of determining Okada’s

entitlement to punitive damages, as the remarks were made contemporaneously with

Whitehead’s fraudulent conduct regarding the Ocean Ridge property. See, e.g.,

Price v. Kramer, 200 F.3d 1237, 1251 (9th Cir. 2000) (finding that evidence of racial


                                           3
bias “was important to proving the defendants[’] conduct was ‘malicious, wanton or

oppressive or in reckless disregard of the plaintiffs’ rights’ which, according to the

jury instructions, was necessary to the receipt of punitive damages”). Second, the

disparaging remarks were highly relevant to Whitehead’s credibility as a witness

because they contradicted Whitehead’s trial testimony that—in attempting to

convince Okada to agree to the Kamprad deal—he had Okada’s best interests in

mind.

        The highly probative nature of the disparaging remarks was not substantially

outweighed by any unfair prejudice. All of the cases Whitehead cites in support of

his unfair prejudice argument are inapposite, in that they all involved the exclusion

of racist comments that had no connection to any contested issues. See, e.g., Green

v. New Jersey Mfrs. Ins. Co., 734 A.2d 1147 (N.J. 1999); MCI Express, Inc. v. Ford

Motor Co., 832 So.2d 795 (Fla. App. 2002); United States v. Johnson, 2015 WL

4747309, No. 14–cr–00412–TEH (N.D. Cal. 2015).             As discussed above, the

disparaging remarks here were highly relevant to at least two contested issues in this

case.

                                         II.

        Whitehead finally argues that the district court’s summary judgment order

erroneously interpreted Section 1.5 of the Settlement Agreement as requiring

Whitehead to record a lien within twenty-four hours of the closing of the Kamprad


                                          4
transaction. But reviewing the district court’s partial summary judgment ruling after

a jury trial was conducted is improper, because even if the panel agrees with

Whitehead and holds that the district court erred in interpreting Section 1.5, such a

holding would not provide a basis on which to reverse the final judgment in this

case. This is because the district court’s interpretation of Section 1.5 was relevant

only to the breach of contract claim—and in fact only to a single ground on which

the jury found Whitehead liable for breach of contract. The jury found Whitehead

liable for breach of contract on three other independent grounds and awarded a

single measure of damages for the claim, which Whitehead does not challenge on

appeal. Because the breach of contract verdict is independently supported by

grounds unrelated to the district court’s interpretation of Section 1.5, any error

related to that interpretation at the summary judgment stage does not provide a basis

for this court to reverse the district court’s final judgment.

      AFFIRMED.




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