                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAR 14 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

TREVOR WOODS and TYRA                           No.    16-56545
WOODSON,
                                                D.C. No.
                Plaintiffs-Appellees,           2:14-cv-08374-VAP-SP

 v.
                                                MEMORANDUM*
JOHN B. FAGAN and DANIEL A.
MARTINEZ,

                Defendants-Appellants,

and

DOES, 1-10, inclusive,

                Defendants.

                   Appeal from the United States District Court
                      for the Central District of California
                   Virginia A. Phillips, Chief Judge, Presiding

                              Submitted March 9, 2018**
                                Pasadena, California




      *
             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).
Before: W. FLETCHER and OWENS, Circuit Judges, and MOSKOWITZ,***
Chief District Judge.

      In this action under 42 U.S.C. § 1983, Defendants-Appellants John B. Fagan

and Daniel A. Martinez, both Long Beach Police Department (“LBPD”) officers,

appeal from the district court’s judgment following a jury verdict imposing liability

for the fatal shooting of Tyler Woods, son of Plaintiffs-Appellees Trevor Woods

and Tyra Woodson. Fagan and Martinez also appeal from the district court’s

award of attorney’s fees under 42 U.S.C. § 1988. 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. Because “a party is entitled to an instruction about his or her theory of the

case if it is supported by law and has foundation in the evidence,” Gantt v. City of

L.A., 717 F.3d 702, 706 (9th Cir. 2013) (internal quotation marks and brackets

omitted), the district court did not err in instructing the jury to first consider

whether deliberation was practical and then, depending on its answer to that

question, to apply either the deliberate-indifference or purpose-to-harm standard.

The practicality of deliberation was a factual question hotly contested at trial, and

ample evidence supported Appellees’ theory that Woods posed no immediate




      ***
             The Honorable Barry Ted Moskowitz, Chief United States District
Judge for the Southern District of California, sitting by designation.

                                            2
threat to Appellants or the surrounding community; that Appellants therefore had

sufficient time, both before and during the shooting, to deliberate over Woods’s

safety and the necessity of deadly force; and that they in fact did so. See, e.g.,

Gantt, 717 F.3d at 707-09. Thus, the instruction was not erroneous.

      Because a reasonable jury could have inferred from the evidence that

deliberation was practical and that Appellants acted with deliberate indifference,

the district court did not err in denying Appellants’ renewed motion for judgment

as a matter of law under Fed. R. Civ. P. 50(b). Dunlap v. Liberty Nat. Prods., Inc.,

878 F.3d 794, 797 (9th Cir. 2017). For the same reason, the district court did not

abuse its discretion in denying Appellants’ motion for a new trial under Fed. R.

Civ. P. 59. DSPT Int’l, Inc. v. Nahum, 624 F.3d 1213, 1218 (9th Cir. 2010).

      2. Whether the LBPD police chief had found the Woods shooting to be

inconsistent with LBPD’s use-of-force policy was relevant under Fed. R. Evid. 402

to assessing whether Appellants harbored “an unlawful purpose to harm.” Porter

v. Osborn, 546 F.3d 1131, 1137, 1141-42 (9th Cir. 2008); see also Clark v. City of

L.A., 650 F.2d 1033, 1036 (9th Cir. 1981). Moreover, in light of Officer

Martinez’s testimony that the LBPD Shooting Review Board and the Los Angeles

County District Attorney’s Office had found the Woods shooting “in policy,” it

was within the district court’s discretion to conclude that any unduly prejudicial

effect associated with evidence of the LBPD chief’s contrary determination was


                                           3
sufficiently mitigated, such that Fed. R. Evid. 403 did not require that the evidence

be stricken. See, e.g., Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384

(2008); United States v. Robertson, 875 F.3d 1281, 1296 (9th Cir. 2017).

      In any event, given the brevity of Officer Martinez’s testimony on this issue;

his opportunity to explain that authorities other than the LBPD chief had deemed

his shooting consistent with department policy; and the fact that the issue was

never brought up again during either the evidence or argument, any error was

harmless. See Obrey v. Johnson, 400 F.3d 691, 701 (9th Cir. 2005).

      For the same reasons, the court did not abuse its discretion in refusing a

curative instruction or in denying Appellants’ motion for a new trial. DSPT Int’l,

Inc., 624 F.3d at 1218.

      3. The district court did not abuse its discretion in calculating the attorney’s-

fees award. It was within the district court’s discretion to weigh the declarations

submitted by Appellees’ counsel and Dale Galipo in support of Appellees’ fees

request and to credit those declarations to the extent they provided information

relevant to the lodestar analysis. See Gonzalez v. City of Maywood, 729 F.3d 1196,

1205-07, 1209 n.11 (9th Cir. 2013). Appellants fail to show that doing so was

“illogical, implausible or without support in the record.” Id. at 1202.

      Moreover, although Appellants contend that the number of hours the district

court awarded was unreasonable, they assert only that according to a declaration


                                          4
filed by their fees expert—a document filed before the district court reduced the

hours Appellees requested—“Plaintiffs’ attorneys are seeking compensation for

hours not reasonably expended in the prosecution of this action.” Because

Appellants have failed to raise any argument “clearly and distinctly in the opening

brief” explaining why the hours the court actually awarded were unreasonable,

their assertion of error in that award is forfeited. See, e.g., McKay v. Ingleson, 558

F.3d 888, 891 n.5 (9th Cir. 2009).

      AFFIRMED.




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