                    UNITED STATES COURT OF APPEALS                       FILED
                            FOR THE NINTH CIRCUIT                         APR 25 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
DAVID WABAKKEN,                                 No.    16-56277

                Plaintiff-Appellant,            D.C. No.
                                                2:12-cv-01503-GW-DTB
 v.                                             Central District of California,
                                                Los Angeles
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND                                 ORDER
REHABILITATION; et al.,

                Defendants-Appellees.

Before: REINHARDT,* W. FLETCHER, and OWENS, Circuit Judges.

      The panel has voted to deny appellant’s petition for panel rehearing.

      The panel has voted to amend the memorandum disposition filed on

February 14, 2018. The superseding amended memorandum disposition will be

filed concurrently with this order.

      The petition for panel rehearing is DENIED. No further petitions for

rehearing or petitions for rehearing en banc will be entertained.




      *
           Due to the death of Judge Reinhardt, the petition for panel rehearing
and amended memorandum disposition were voted upon only by Judges Fletcher
and Owens.
                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 25 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

DAVID WABAKKEN,                                 No.    16-56277

                Plaintiff-Appellant,            D.C. No.
                                                2:12-cv-01503-GW-DTB
 v.

CALIFORNIA DEPARTMENT OF                        AMENDED MEMORANDUM*
CORRECTIONS AND
REHABILITATION; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Central District of California
                    George H. Wu, District Judge, Presiding

                           Submitted February 9, 2018**
                              Pasadena, California

Before: REINHARDT,*** W. FLETCHER, and OWENS, Circuit Judges.

      Plaintiff David Wabakken (“Wabakken”) appeals from a judgment



      *
             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).
      ***
             Due to the death of Judge Reinhardt, the amended memorandum
disposition was voted upon only by Judges Fletcher and Owens.
following a jury verdict finding that Defendants, the California Department of

Corrections and Rehabilitation (“CDCR”) and Correctional Officers Gary Grover,

George DiMaggio, Keith Mayfield, and J.W. Morgan (collectively “Officer

Defendants”), did not violate his rights under the California Whistleblower

Protection Act (“CWPA”), nor did J.W. Morgan violate his First Amendment

rights. As the parties are familiar with the facts, we do not recount them here. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      1.     Assuming that the district court erred in denying Wabakken’s motion

in limine to exclude certain evidence that the CDCR failed to prove in a hearing

before the California State Personnel Board (“SPB”), Wabakken has forfeited his

right to appeal the district court’s ruling. Wabakken seeks to exclude evidence of

his alleged misconduct that supports the CDCR’s adverse action against him and

thus its affirmative defense to his whistleblower claims under California

Government Code § 8247.8(e). But because Wabakken’s counsel elicited

testimony of this misconduct on direct examination, he may not now challenge its

introduction on cross examination. See Coursen v. A.H. Robins Co., 764 F.2d

1329, 1340 (9th Cir. 1985) (holding that the party forfeited its right to appeal a

motion in limine to exclude certain evidence after the party’s counsel elicited such

evidence on direct examination); see also Fed. R. Evid. 611(b).

      2.     Any error by the district court in excluding the SPB findings was


                                          2
harmless. Wabakken argues that the district court erred in granting the CDCR and

Officer Defendants’ motion in limine to exclude the SPB findings, which found

that the CDCR had failed to prove some of Wabakken’s alleged misconduct. The

jury verdict makes clear, however, that the jury found that neither the CDCR nor

the Officer Defendants had taken adverse action against Wabakken. If no adverse

action was taken, whether Wabakken engaged in the alleged misconduct that could

otherwise support such action is irrelevant. Any error in excluding the SPB

findings was therefore harmless. Cf. Cunha v. Ward Foods, Inc., 804 F.2d 1418,

1434 (9th Cir. 1986) (finding harmless error where court refused to instruct jury on

promissory estoppel claim because jury, in considering another claim, found no

promise was given).

      3.     The district court did not abuse its discretion in denying Wabakken’s

motion in limine to exclude evidence from a fourth misconduct investigation that

did not result in a Notice of Adverse Action (“NOAA”) against Wabakken. Under

Federal Rule of Evidence 403, the district court had discretion to weigh the

probative value of this evidence against its danger for unfair prejudice. To reverse

the district court’s Rule 403 determination, this court must find that the district

court ruling more likely than not tainted the jury’s verdict. See Beachy v. Boise

Cascade Corp., 191 F.3d 1010, 1015 (9th Cir. 1999). Given the “substantial

evidence” of inexcusable neglect of duty, insubordination, willful disobedience,


                                           3
and misuse of state property alleged in connection with the first and third NOAAs

against Wabakken, it is unlikely that evidence of the fourth investigation, the

subject of which was also alleged violations of policies and procedures, tainted the

jury’s verdict. Id. at 1016.

      Wabakken’s argument that his procedural due process rights were violated

by the introduction of such evidence also fails. He was afforded his constitutional

rights in connection with the first three NOAAs, the only ones that resulted in

adverse action against him. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S.

532, 542 (1985).

      4.     The district court did not abuse its discretion in excluding deposition

testimony of one of Wabakken’s witnesses under Federal Rule of Civil Procedure

32(a)(4)(D). This Rule permits a party to use deposition testimony “if the court

finds . . . that the party offering the deposition could not procure the witness’s

attendance by subpoena.” Fed. R. Civ. P. 32(a)(4)(D). After Wabakken

subpoenaed the witness, he made no effort to have him appear at trial based on his

belief that the correctional authorities would refuse to bring the witness to court.

The district court did not abuse its discretion in failing to find that perceived

futility satisfies Rule 32(a)(4)(D).

      5.     Any error by the district court in instructing the jury that the CWPA

provided the Officer Defendants an affirmative defense if they could prove that


                                           4
they had legitimate, non-retaliatory reasons to take adverse action against

Wabakken, see Cal. Gov’t Cd. § 8547.8(c), was harmless. It is clear from the jury

verdict that the jury did not find that any of the Officer Defendants had taken

adverse action against Wabakken. The jury therefore neither needed to, nor did,

decide whether the Officer Defendants had made out this affirmative defense. Cf.

Benigni v. City of Hemet, 879 F.2d 473, 480 (9th Cir. 1988) (finding harmless error

where court failed to instruct jury on reasonableness because jury’s punitive

damages award indicated it found officers’ conduct to be more than unreasonable).

Any error in the jury instruction as to this affirmative defense was therefore

harmless.

      6.     Wabakken is not entitled to a new trial based on judicial bias.

Wabakken’s primary contention is that the district court was biased against him

because it was reversed in Wabakken v. CDCR, 801 F.3d 1143 (9th Cir. 2015).

Wabakken does not point to a single instance in which the trial judge attempted to

interfere with his case or assist the defense. See United States v. Laurins, 857 F.2d

529, 537 (9th Cir. 1988) (requiring actual bias or jury perception of advocacy or

partiality). Wabakken therefore fails to demonstrate judicial bias.

      AFFIRMED.




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