                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       OCT 18 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JIM MAXWELL and KAY MAXWELL,                    No. 15-56976
individually and as guardians of Trevor
Allen Bruce and Kelten Tanner Bruce; et al.,    D.C. No. 3:07-cv-02385-JAH-JLB

                Plaintiffs-Appellants,
                                                MEMORANDUM*
 v.

COUNTY OF SAN DIEGO; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Southern District of California
                    John A. Houston, District Judge, Presiding

                      Argued and Submitted August 30, 2017
                              Pasadena, California

Before: W. FLETCHER and IKUTA, Circuit Judges, and BARKER,** District
Judge.

      This case arises from the shooting and subsequent death of Kristin Maxwell-

Bruce at the hands of her husband, an off-duty San Diego Sheriff’s Department



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Sarah Evans Barker, United States District Judge for
the Southern District of Indiana, sitting by designation.
corrections deputy. Kristin’s parents, Jim and Kay Maxwell, individually and as

guardians of their grandchildren, Trevor Allen Bruce and Kelten Tanner Bruce,

sued various San Diego Sheriff’s deputies1 and the paramedics from the Alpine

Fire Protection District and the Viejas Fire Department,2 all of whom responded to

the 911 call. Before trial, the district court granted summary judgment in favor of

the Alpine and Viejas paramedics. The case proceeded to trial against the Sheriff’s

deputies on claims related to their alleged actions in delaying the first ambulance

from the scene, the detention and separation of Jim and Kay Maxwell, and the use

of force against Jim Maxwell. The jury returned a verdict in favor of the Sheriff’s

deputies on all claims.

      The Maxwells have now appealed the district court’s orders granting

summary judgment in favor of the Alpine and Viejas paramedics as well as the

district court’s order denying the Maxwells’ post-trial motion for judgment as a

matter of law or, in the alternative, a new trial as to their claims against the

Sheriff’s deputies. We have jurisdiction under 28 U.S.C. § 1291.

      We begin by addressing the Maxwells’ challenge to the grant of summary


      1
            The remaining Sheriff’s deputies involved in this appeal are: Jeffrey
Jackson, Gary Kneeshaw, and Michael Knobbe.
      2
            The paramedics involved in this appeal are: (1) the Alpine Fire
Protection District, Brian Boggeln, Colby Ross, Gerald “Chip” Howell II, and
Michael Mead (collectively, “the Alpine paramedics”); and (2) Bradley Avi and
Jeremy Felber of the Viejas Fire Department (collectively, “the Viejas
paramedics”).

                                           2                                       15-56976
judgment in favor of the Alpine and Viejas paramedics. We review de novo a

district court’s grant of summary judgment, “making all justifiable factual

inferences in favor of the nonmoving party.” Beck v. City of Upland, 527 F.3d

853, 861 (9th Cir. 2008).

      California law provides for qualified immunity for emergency responders

unless the responders act “in a grossly negligent manner” or their “acts or

omissions [are] not performed in good faith.” Cal. Health & Safety Code §§

1799.106–1799.108. There was no allegation of bad faith in this case and gross

negligence can be found only in cases in which there is either a “want of even

scant care” or “an extreme departure from the ordinary standard of conduct.” City

of Santa Barbara v. Superior Court, 161 P.3d 1095, 1099 (Cal. 2007).

      The record before us makes clear that the paramedics provided considerably

more than “scant care” to Kristin in undertaking triage measures immediately upon

arrival at the scene and promptly arranging for her transport to a trauma hospital,

monitoring her vital signs, beginning c-spine precautions, and, when her condition

worsened, twice attempting, albeit unsuccessfully, to visualize her airway in an

effort to intubate her. While the Maxwells argue that certain actions and omissions

of the paramedics fell below the applicable standard of care, even assuming that to

be true, there is no genuine issue of material fact that any of the paramedics’

actions or omissions, considered alone or together, was such an “extreme


                                          3                                       15-56976
departure” from the ordinary standard of care as to constitute gross negligence.

      Nor was the district court’s order erroneous in denying the Maxwells’

renewed motion for judgment as a matter of law or, in the alternative, motion for a

new trial on Jim Maxwell’s unlawful detention and excessive force claims. We

review de novo a district court’s denial of a renewed motion for judgment as a

matter of law and a motion for new trial pursuant to Federal Rule of Civil

Procedure 59(a) for an abuse of discretion. Theme Promotions, Inc. v. News Am.

Mktg. FSI, 546 F.3d 991, 999, 1000 (9th Cir. 2008); Kode v. Carlson, 596 F.3d

608, 612 (9th Cir. 2010).

      The Maxwells have conceded that, if the Sheriff’s deputies’ orders

prohibiting Jim from seeing his wife were lawful, the force used against him was

permissible. Viewing the evidence as a whole and in the light most favorable to

the Sheriff’s deputies, and drawing all reasonable inferences in their favor as we

are required to do, we cannot say that the only conclusion permitted by the

evidence is that the orders given to Jim by the Sheriff’s deputies were unlawful.

See Martin v. Cal. Dep’t of Veterans Affairs, 560 F.3d 1042, 1046 (9th Cir. 2009).

To the contrary, there was substantial evidence presented at trial that the Sheriff’s

deputies’ orders had a lawful purpose, to wit, to secure the crime scene. Therefore,

we also cannot say that any excessive force was used against Jim. The district

court’s finding that there was sufficient evidence to support the jury’s verdict was


                                          4                                    15-56976
therefore not error. It is the duty of the jury to weigh the evidence and make

credibility determinations; it is not within our purview to review or to reverse those

determinations on appeal. Harper v. City of Los Angeles, 533 F.3d 1010, 1021 (9th

Cir. 2008). For these reasons, we hold that the district court did not err in denying

the Maxwells’ renewed motion for judgment as a matter of law or for a new trial

on these claims.

      The district court also denied the Maxwells’ motion for a new trial as to their

claim that certain of the Sheriff’s deputies delayed the ambulance, ruling that the

jury’s verdict was not against the weight of the evidence. We reverse such a

decision “only where there is an absolute absence of evidence to support the jury’s

verdict.” Kode, 596 F.3d at 612 (emphasis in original) (quoting Desrosiers v.

Flight Int’l of Fla., Inc., 156 F.3d 952, 957 (9th Cir. 1998)).

      Here, there was sufficient evidence in the record to support a conclusion that

the ambulance was not delayed by the Sheriff’s deputies, specifically the

paramedics’ testimony at trial that they were never delayed by the deputies on the

night that Kristin died. The jury was entitled to credit this testimony and we do not

review such credibility determinations on appeal. See id. Because substantial

evidence supported the jury’s verdict, the district court did not abuse its discretion

in denying the Maxwells’ motion for a new trial on this basis.

      Finally, the Maxwells appeal the district court’s denial of their motion for a


                                           5                                     15-56976
new trial on the grounds that defense counsel made improper comments and

mischaracterized the law during his opening statement and closing argument.

Misconduct by trial counsel generally results in a new trial only “if the ‘flavor of

misconduct sufficiently permeate[s] an entire proceeding to provide conviction that

the jury was influenced by passion and prejudice in reaching its verdict.’”

Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1192 (9th Cir. 2002) (internal

quotation omitted) (alterations in original). The district court did not abuse its

discretion in determining that no such permeating influence existed here. Any

potential prejudice stemming from defense counsel’s isolated remarks during his

opening statement and closing argument was addressed and ameliorated by the

district court’s curative instructions and the Maxwells’ counsel’s opportunity to

rebut defense counsel’s statements. Thus, we hold that the district court did not err

in denying the Maxwells’ motion for a new trial on this ground.

      AFFIRMED.




                                           6                                    15-56976
