                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 18 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



TORRY SMITH and PATRICIA GRAY,                   No. 08-15896

              Plaintiffs - Appellees,            D.C. No. 3:05-CV-04045-EMC

  v.
                                                 MEMORANDUM *
CITY OF OAKLAND, a municipal
corporation; et al.,

              Defendants - Appellants.



                   Appeal from the United States District Court
                      for the Northern District of California
                   Edward M. Chen, Magistrate Judge, Presiding

                        Argued and Submitted May 11, 2010
                             San Francisco, California

Before: RYMER and McKEOWN, Circuit Judges, and FAWSETT, Senior District
Judge.**

       Oakland Police Officers John Parkinson and Marcus Midyett appeal the

judgment in favor of Torry Smith and Patricia Gray under 42 U.S.C. § 1983 and



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Patricia C. Fawsett, Senior United States District
Judge for the Middle District of Florida, sitting by designation.
California Civil Code §§ 51.7 & 52.1. We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and affirm.




                                           I

      The officers’ appeal turns mainly on a position they did not take in district

court until moving for JMOL under Fed. R. Civ. P. 50(b) – that the district court

applied an erroneous “subjective intent” test.1 However, as the district court ruled

in denying their Rule 50(b) motion, the officers agreed to the standard about which

they now complain, and tried the case on the basis of that standard. They failed to

object to admissibility of evidence or to jury instructions on this ground; their own

proposed Instruction No. 16 incorporated the standard, and they proposed no

counter instructions articulating a different standard; they neither objected to the

verdict form nor requested a different one; and they did not espouse their present

theory in moving for summary adjudication or for judgment under Rule 50(a). In

these circumstances, we agree with the district court that the officers are precluded


      1
          This is true of their arguments that the investigation of Smith was
objectively reasonable as a matter of law; that entry was constitutional because the
officers correctly ascertained Smith’s status; that Smith’s counsel made a judicial
admission in closing that he had no problem with the officers going to the house;
that “arbitrary” was misdefined to reach beyond the officers’ knowledge of Smith’s
status; that the district court conflated whether the search lacked probable cause or
reasonable suspicion with subjective standards; and that they can’t be liable to
Gray because their entry was permissible. At the end of the day, all pivot on the
same point.
from making the “subjective intent” arguments they first raised after trial and press

on appeal. See, e.g., Fed. R. Civ. P. 51; United States v. Parsons Corp., 1 F.3d

944, 945 (9th Cir. 1993) (applying Rule 51 to verdict forms); Wagner v. Prof’l

Eng’rs in Cal. Gov’t, 354 F.3d 1036, 1044 & n.4 (9th Cir. 2004) (noting that a

party is judicially estopped from taking one position, then taking an incompatible

position).




                                          II

      The district court did not err in allowing damages from Smith’s false arrest

to run beyond arraignment on felony charges. We do not need to decide whether

the court correctly ruled on the question of independent prosecutorial judgment, or

whether Smith needed to (or did) plead or prove malicious prosecution, or whether

there is a difference that matters between state and federal law, because Smith was

incarcerated on account of a parole violation as well as on account of the gun

charges. The parole hold extended well beyond resolution of the gun charges, yet

involved no independent process. Cf. Wallace v. Kato, 549 U.S. 384, 389-90

(2007) (indicating that false arrest damages are ordinarily limited to the time

between detention and arraignment because at that point “the victim becomes held

pursuant to such process”). Accordingly, there is no basis for limiting damages to

four days.
                                          III

      We cannot say the district court abused its discretion in determining the

amount of damages to remit. The remaining award, while substantial, is not

“grossly excessive or monstrous.” See Hemmings v. Tidyman’s Inc., 285 F.3d

1174, 1191 (9th Cir. 2002) (internal quotation marks omitted). Nor will we

consider the officers’ suggestion that the jury was incompletely instructed on false

imprisonment as no objection was made on this basis; and they raised no

sufficiency issue in their Rule 50(a) motion so consideration of it, too, is waived.

      Likewise, the district court did not abuse its discretion in letting the punitive

damages award stand. To the extent the officers contend that no award was proper

because the search was constitutional under a different standard from that relied

upon at trial, the issue is waived for reasons we have explained; and to the extent

they argue as to Smith that any award should be limited to the period pre-

arraignment, the point is not persuasive given that post-arraignment damages could

be awarded. They failed to pursue at trial, and thus to preserve, any deficiency

arising out of net worth.

      AFFIRMED.
