                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


SARA DEES; L.G., a minor by and         Nos. 17-56621
through her Guardian Ad Litem,               17-56710
Robert Schiebelhut; G.G., a minor by
and through her Guardian Ad Litem,         D.C. No.
Robert Schiebelhut,                     3:14-cv-00189-
                Plaintiffs-Appellees/     BEN-DHB
                  Cross-Appellants,

                 v.                        OPINION

COUNTY OF SAN DIEGO,
             Defendant-Appellant/
                  Cross-Appellee,

                and

SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY; CAITLIN
MCCANN; SRISUDA WALSH; GLORIA
ESCAMILLA-HUDIOR; COREY KISSEL,
Doe 1; NORMA RINCON, Doe 2;
ALBERTO BORBOA, Doe 3; DOES, 4–
100, inclusive,
                     Defendants.

      Appeal from the United States District Court
        for the Southern District of California
      Roger T. Benitez, District Judge, Presiding
2               DEES V. COUNTY OF SAN DIEGO

           Argued and Submitted October 23, 2019
                    Pasadena, California

                       Filed May 27, 2020

    Before: Andrew J. Kleinfeld, Consuelo M. Callahan,
            and Ryan D. Nelson, Circuit Judges.

              Opinion by Judge R. Nelson;
Partial Concurrence and Partial Dissent by Judge Callahan


                          SUMMARY *


                           Civil Rights

    The panel affirmed in part and reversed in part the
district court’s judgment in an action alleging that a County
social worker violated plaintiffs’ Fourth and Fourteenth
Amendment rights during an investigation that involved
interviewing minor plaintiff L.G. at her school.

    Plaintiffs, Sara Dees and her minor children L.G. and
G.G. alleged that their Fourth and Fourteenth Amendment
rights were violated when a social worker sent a letter to the
family court which falsely stated that a decision had been
made to remove Sara’s children from her custody. Plaintiffs
further alleged that defendants violated L.G.’s Fourth
Amendment rights when the social worker interviewed L.G.
at her school for 5 minutes.


    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
              DEES V. COUNTY OF SAN DIEGO                    3

    The panel held that this Circuit’s precedent requires that,
to establish a Fourteenth Amendment claim based on a
minor being separated from his or her parents, plaintiffs must
establish that an actual loss of custody occurred; the mere
threat of separation or being subject to an investigation,
without more, is insufficient. The panel held that plaintiffs’
allegations that their rights were violated when defendant
sent an admittedly false letter to the family court failed to
establish a Fourteenth Amendment violation. Accordingly,
the district court did not err by granting summary judgment
in favor of the County on this claim.

    The panel held that Sara’s allegation that her Fourteenth
Amendment familial association right was violated as a
result of L.G.’s 5-minute seizure at her school also failed to
establish a claim given that Sara never actually lost control
over L.G. Accordingly, the panel reversed the district
court’s grant to Sara of judgment as a matter of law and, in
the alternative, for a new trial on that claim.

    The panel held that, viewing the evidence in the light
most favorable to the County and granting the County all
inferences therefrom, substantial evidence supported the
jury’s verdict in favor of the County on L.G’s Fourth
Amendment claim arising from the school seizure. Thus, the
panel determined that the district court inappropriately
weighed the evidence when it concluded that L.G. was
seized and did not (or could not) consent as a matter of law.
Accordingly, the panel reversed the district court’s grant of
judgment as a matter of law on L.G.’s Fourth Amendment
claim.

   Although the panel reversed the district court’s grant of
judgment as a matter of law to L.G. on her Fourth
Amendment claim, the panel affirmed the district court’s
grant of a new trial on that claim. The panel stated that this
4              DEES V. COUNTY OF SAN DIEGO

result was not inherently contradictory and was driven by the
standard of review—the district court’s ruling on a motion
for new trial is reviewed for abuse of discretion instead of de
novo review. The panel concluded that the district court did
not abuse its discretion by ordering a new trial because while
substantial evidence supported the jury’s verdict, the clear
weight of the evidence did not compel it.

    Concurring in part and dissenting in part, Judge Callahan
concurred in the majority opinion affirming the district
court’s judgment in favor of the County employees on the
claims involving the false letter, reversing the district court’s
grant of judgment as a matter of law on L.G. and Sara’s
Fourth and Fourteenth Amendment claims regarding
seizure, and reversing the conditional grant of a new trial to
Sara on her seizure claim. However, Judge Callahan would
vacate the district court’s conditional grant of a new trial to
L.G. on the Fourth Amendment seizure claim. In Judge
Callahan’s view, the record revealed substantial evidence
that supported the jury’s determination, and the trial court
had not indicated what evidence might undermine the jury’s
verdict.
              DEES V. COUNTY OF SAN DIEGO                 5

                       COUNSEL

Caitlin E. Rae (argued), Senior Deputy; David Brodie, Chief
Deputy; Thomas E. Montgomery, County Counsel; Office
of County Counsel, San Diego, California; for Defendant-
Appellant/Cross-Appellee.

Donnie R. Cox (argued), Law Office of Donnie R. Cox,
Oceanside, California; Paul W. Leehey, Law Office of Paul
W. Leehey, Fallbrook, California; Robert R. Powell, Powell
& Associates, San Jose, California; for Plaintiffs-
Appellees/Cross-Appellants.



                        OPINION

R. NELSON, Circuit Judge:

    The County of San Diego appeals the district court’s
post-verdict grant of judgment as a matter of law on Fourth
and Fourteenth Amendment claims regarding the alleged
seizure of a minor, L, by a social worker. Cross-Appellants
L and Sara Dees appeal the district court’s grant of summary
judgment on their Fourteenth Amendment claims regarding
the County’s false letter allegedly impairing their right to
familial association.

     We reverse the district court’s grant of judgment as a
matter of law on L and Sara’s respective Fourth and
Fourteenth Amendment claims regarding the seizure. We
also reverse the district court’s conditional grant of a new
trial to Sara on her seizure claim. We affirm the district
court’s judgment in favor of the County employees on L and
Sara’s Fourteenth Amendment claims involving the false
6             DEES V. COUNTY OF SAN DIEGO

letter. Finally, we affirm the district court’s conditional
grant of a new trial on L’s Fourth Amendment claim.

                              I

    On February 7, 2013, Ka and Ky’s biological mother,
Kelly Hunter, reported to San Diego County’s Health and
Human Services Agency (“Agency”) that her ex-husband,
Robert Dees, had taken naked photos of their thirteen-year-
old daughter, Ka. Hunter’s referral was assigned to County
social worker Caitlynn McCann.

    Pursuant to Agency policy, a companion referral was
created for L and G because they primarily resided in the
house that Robert shared with his wife, Sara. L and G are
Sara’s children from her prior marriage to Alfredo Gil. L, a
nine-year-old girl at the time, suffers from several cognitive
disabilities. She has been diagnosed with anxiety, ADHD,
and is “probably on the autism spectrum.” L is also very
bright, impulsive, and prone to outbursts.

    McCann began her investigation by interviewing Ka and
attending a police interview of Robert. Both Robert and Ka
acknowledged that Robert had taken naked photos of Ka,
ostensibly at Ka’s request as part of a project to document
her body’s changes during puberty. The police, after
completing their forensic interview with Robert, inspected
the camera that had been used to take the photos. According
to Robert, the photos of Ka had been deleted by Sara’s sister,
who discovered them. Robert would not allow the police to
take the camera because he claimed that it also contained
naked photos of him and Sara.

    After McCann interviewed Robert and Ka, she
interviewed L. L told McCann that Hunter was trying to
“make Rob[ert] look wrong” and that Robert had not taken
               DEES V. COUNTY OF SAN DIEGO                      7

any nude photos of her. At the end of the day, Robert agreed,
at McCann’s request, to move out of the home during the
investigation and to produce Ka for a forensic interview.

     The next day, McCann informed Gil, L and G’s
biological father, that he “was going to be given full custody
of . . . [his] two daughters . . . [because] their step-father had
taken nude photos of” Ka. Gil picked up his daughters that
day under the operative custody arrangement. He arranged
for L and G to stay at their grandmother’s house during the
following week, even though L and G were scheduled to stay
with Sara.

    Sara and Robert subsequently secured legal counsel and
a hearing at which they sought “to change the custodial
rights back to the . . . original custodial rights.” The family
court judge agreed, over Gil’s objections, and ordered the
children returned to Sara pursuant to the preexisting custody
arrangement. Sara took back custody of L and G shortly
thereafter.

      After learning about the family court’s decision,
McCann’s supervisor ordered McCann to wrap up her
investigation. Agency policy required McCann to complete
a final welfare check on L and G, and “a lot of loose ends
. . . [and] discrepancies” still left McCann suspicious that
illegal activities were taking place. McCann’s suspicions
were not shared by the San Diego Police Department, which
closed its investigation and advised McCann that the District
Attorney was not seeking a search warrant for Robert’s
camera. Still, McCann believed the criminal investigation
was ongoing.

   McCann called the Dees to arrange a final interview of
L and G. L and G’s grandmother, who was staying at the
Dees’ home, told McCann that she was not to interview L or
8              DEES V. COUNTY OF SAN DIEGO

G without an attorney present. Despite the grandmother’s
instruction, McCann went to L and G’s school to interview
them. McCann believed that school district policy allowed
her to interview the kids at school in a case of suspected child
abuse. The school district’s policy does not require the
social worker to notify the parents or to obtain parental
consent, but the social worker must:

       1. advise the child of the right to have school
          personnel present during the interview[;]

       2. advise the child that (s)he may stop the
          interview at any time and periodically
          check with the child during the interview
          to determine if (s)he is comfortable with
          continuing the interview. If the child says
          to stop, then the [social worker] will
          immediately terminate the interview[;]

       3. not include law enforcement in the
          interview[; and]

       4. complete     the    interview    within
          developmentally-appropriate time limits,
          which will never exceed 60 minutes.

   McCann asked a school assistant to bring L to the
administrative office. L was willing to talk with McCann.
McCann told L that a school official could remain in the
room, L could stop the interview at any time, and if L had
any questions, McCann would try to answer them. L did not
want a school official in the room during the interview and
never indicated that she wanted to stop talking to McCann.

   The interview lasted five minutes. McCann asked L
whether Robert, despite agreeing to remain out of the house
              DEES V. COUNTY OF SAN DIEGO                 9

during the pendency of the investigation, was, in fact, back
in the house. McCann did not ask L directly if Robert had
taken nude photos of her but understood from the
conversation that no such photos existed. The interview
ended “naturally” when McCann finished her questions and
L indicated she did not have any questions for McCann. A
school official then escorted L back to her classroom.

    L’s emotional state during and after the interview is
disputed. According to McCann, L was “diplomatic” during
the interview and was not upset immediately after the
interview. Sara, who happened to be in the school when L
was interviewed, disputes McCann’s assessment of L’s
emotional state. According to Sara, L was upset after the
interview, screaming “CPS is here, CPS is here.”

    Two days later, McCann was unambiguously informed
by the police that their investigation was closed. A week
later, McCann closed her own investigation, finding any
allegation that L was being abused “unfounded”—meaning
that she concluded, under Agency policy, there had “been no
shown abuse, and there [was] no basis for the allegation.”

    That same day, McCann sent a letter, signed by Gloria
Escamilla-Huidor and Alberto Borboa (McCann’s
supervisors), to the family court overseeing the custody
dispute between Sara and Gil. The letter stated that “[a]
decision has been made to remove the child(ren) [L and G]
from the custodial parent [Sara] and place [them] with the
non-custodial parent [Gil] to avoid placing the child(ren)
into Polinsky Children’s Center, foster home or adjunct.”
The statement in the letter was false because L and G were
never removed from Sara’s custody. At trial, the County’s
own expert testified that the letter was “not correct” and
“ma[de] no sense.” McCann testified that the quoted
language was “standard language . . . [that she] couldn’t
10             DEES V. COUNTY OF SAN DIEGO

have edited . . . if . . . [she] wanted to” and that the letter
“was sent on behalf of . . . [Gil], who was concerned about
his children and was looking for custody.” The letter was
received by the family court, but the family court never acted
on it. L and G have remained in Sara’s primary custody
since February 13, 2013.

    Sara and L brought multiple claims against the County
and various County employees alleging, among other things,
violations of their Fourth and Fourteenth Amendment rights.
In particular, Sara and L brought claims against the County
employees alleging violations of the Fourteenth Amendment
right to familial association by sending the false letter to the
family court. The County employees moved for summary
judgment on those claims. Despite noting that “McCann’s
conduct in preparing the March 7 letter . . . [was] alarming,”
the district court concluded “the letter caused no harm to
Plaintiffs.” Accordingly, the district court granted summary
judgment to McCann, Huidor, and Borboa on Sara and L’s
Fourteenth Amendment claims related to the false letter.

    A jury trial was subsequently held on the remaining
claims. At the close of the County’s case, Sara and L moved,
pursuant to Federal Rule of Civil Procedure (“Rule”) 50(a),
for judgment as a matter of law on their respective
Fourteenth and Fourth Amendment claims regarding
McCann’s alleged seizure of L. The district court took the
motion under advisement and submitted the case to the jury.

    The jury returned a verdict in favor of the County on all
counts. The jury answered “No” to the question, “Did
Caitlin McCann violate the 4th Amendment Constitutional
rights of . . . [L] when she conducted the school
interview[]?” The jury also answered “No” to the question,
“Did Caitlin McCann violate the 14th Amendment
Constitutional right of Sara Dees when she conducted the –
              DEES V. COUNTY OF SAN DIEGO                 11

?” Because the jury concluded no constitutional violations
occurred, it did not reach whether McCann was acting
pursuant to an official County policy, whether that policy
caused the constitutional violations, or whether L or Sara
were damaged by the constitutional violations.

     L and Sara subsequently renewed their Rule 50(a)
motion under Rule 50(b) and, in the alternative, sought a new
trial pursuant to Rule 59. The district court granted L and
Sara’s renewed Rule 50 motion and conditionally granted a
new trial pursuant to Rules 59 and 50(c)(1). It made the
following findings:

   1. McCann seized L during the school interview;

   2. McCann’s seizure of L was unreasonable because
      there was no “warrant, court order, parental consent,
      exigency, or at the very least, reasonable suspicion to
      seize and interview L”;

   3. McCann’s unreasonable seizure of L violated Sara’s
      Fourteenth Amendment familial association right;

   4. McCann interviewed L pursuant to a County policy;
      and

   5. the County’s policy of allowing social workers to
      interview children caused the constitutional
      violations.

   The County, Sara, and L filed timely notices of appeal.
Accordingly, the following claims are now before us:

   1. Sara and L’s Fourteenth Amendment claim for
      familial interference regarding the false letter;
12             DEES V. COUNTY OF SAN DIEGO

     2. Sara’s Fourteenth Amendment claim against the
        County regarding McCann’s seizure of L; and

     3. L’s Fourth Amendment claim against the County
        regarding her seizure by McCann.

                               II

    A district court’s grant of summary judgment is reviewed
de novo. O’Rourke v. N. California Elec. Workers Pension
Plan, 934 F.3d 993, 998 (9th Cir. 2019).

      A district court’s grant of judgment as a matter of law is
also reviewed de novo. Krechman v. County of Riverside,
723 F.3d 1104, 1109 (9th Cir. 2013). We “must view the
evidence in the light most favorable to the nonmoving party
. . . and draw all reasonable inferences in that party’s favor.”
EEOC v. Go Daddy Software, Inc., 581 F.3d 951, 961 (9th
Cir. 2009) (internal quotation marks omitted). The district
court may not weigh evidence or make credibility
determinations when reviewing a motion for judgment as a
matter of law. Id. “A jury’s verdict must be upheld if it is
supported by substantial evidence . . . even if it is also
possible to draw a contrary conclusion from the same
evidence.” Wallace v. City of San Diego, 479 F.3d 616, 624
(9th Cir. 2007) (internal quotation marks and citation
omitted).

     Finally, the district court’s ruling on a motion for new
trial is reviewed for abuse of discretion. OTR Wheel Eng’g,
Inc. v. W. Worldwide Servs., Inc., 897 F.3d 1008, 1022 (9th
Cir. 2018). Indeed, “[t]he authority to grant a new trial . . .
is confided almost entirely to the exercise of discretion on
the part of the trial court.” Allied Chemical Corp. v. Daiflon,
Inc., 449 U.S. 33, 36 (1980) (emphasis added). We may
reverse a district court’s grant of a new trial only if the jury’s
              DEES V. COUNTY OF SAN DIEGO                  13

verdict is supported by the clear weight of the evidence and
“must uphold the district court if any of its grounds for
granting a new trial are reasonable.” United States v. 4.0
Acres of Land, 175 F.3d 1133, 1139 (9th Cir. 1999).

                             III

    We begin with the Fourteenth Amendment claims,
including Sara and L’s appeal of the district court’s grant of
summary judgment on their claims regarding the false letter.
We then turn to the district court’s grant of judgment as a
matter of law and, in the alternative, a new trial to Sara on
her claim regarding McCann’s seizure of L.

                              A

    After the parties fully briefed their appeals, this Court
issued its decision in Capp v. County of San Diego, 940 F.3d
1046 (9th Cir. 2019). In Capp, a father and his two children
sued the County of San Diego and County social workers
alleging violations of the First, Fourth, and Fourteenth
Amendments. Specifically, the children alleged their Fourth
Amendment rights were violated when the social workers
seized and interviewed them during a child abuse
investigation into their father. Id. at 1059–60. The father
brought a separate Fourteenth Amendment claim, id.
at 1060, alleging the County placed him on a child abuse
monitoring list and encouraged his ex-wife to withhold the
children from him while she sought custody in family court
(which was ultimately denied). Id. & n.9. This Court
affirmed the district court’s dismissal of the Fourth and
Fourteenth Amendment claims. Id. at 1059–60. With
respect to the Fourteenth Amendment claims, we stated:

       Plaintiffs do not allege that Capp actually lost
       custody of his children as a result of
14            DEES V. COUNTY OF SAN DIEGO

       Defendants’ alleged misconduct.         Capp
       might have been subjected to an investigation
       by the Agency, but that alone is not
       cognizable as a violation of the liberty
       interest in familial relations.

Id. at 1060 (emphasis added) (footnote omitted).

    Capp’s holding built on Mann v. County of San Diego,
907 F.3d 1154 (9th Cir. 2018). In Mann, social workers
investigating a child abuse allegation omitted exculpatory
information from their application to the family court to take
custody of the allegedly abused children. Id. at 1158. The
family court granted the application, and the social workers
removed the children from their parents’ custody. Id. The
social workers then took the children to a temporary shelter
for children and allowed medical professionals to perform
invasive medical examinations on the children, including
gynecological and rectal exams. Id.

    The parents of the children alleged that the County
violated their Fourteenth Amendment substantive due
process rights “when it perform[ed] the . . . medical
examinations without notifying the parents about the
examinations and without obtaining either parents’ consent
or judicial authorization.” Id. at 1161. We reversed the
lower court and agreed with the parents’ position, holding
“the County’s failure to provide parental notice or to obtain
consent violated . . . [the parents’] Fourteenth Amendment
rights.” Id. at 1164.

    Reading Capp and Mann together, our Court requires
that, to establish a Fourteenth Amendment claim based on a
minor being separated from his or her parents, plaintiffs must
establish that an actual loss of custody occurred; the mere
                DEES V. COUNTY OF SAN DIEGO                         15

threat of separation or being subject to an investigation,
without more, is insufficient.

                                  B

    Applying our precedent to Sara and L’s Fourteenth
Amendment claims regarding the false letter, we affirm the
district court, but on alternate grounds. 1

    As we have described, the mere threat by a social worker
to take away a child is insufficient to support a Fourteenth
Amendment claim. Furthermore, the improper conduct in
Capp, which included falsely informing the father that he
had been placed on a sex offender list and actively
encouraging the mother to withhold the child and seek sole
custody in family court, goes well beyond the conduct at
issue here. 940 F.3d at 1060. Mann is the same. In that case,
the bases of the parents’ Fourteenth Amendment claims were
the gynecological and rectal exams performed on the
children without parental notification or consent. 907 F.3d
at 1161. The admittedly false letter falls short of the
offending conduct in Capp and pales in comparison to the
conduct in Mann.

   Sara’s argument to the contrary is unpersuasive. She
characterizes the false letter as a ticking “time bomb”
waiting to go off if the family court ever reopens the case.

    1
      The district court granted summary judgment to the County on Sara
and L’s Fourteenth Amendment claims regarding the false letter because
“the letter caused no harm to Plaintiffs.” This holding is difficult to
reconcile with our precedent and the Supreme Court’s holding that “the
denial of procedural due process should be actionable for nominal
damages without proof of actual injury.” Carey v. Piphus, 435 U.S. 247,
266 (1978); see also Draper v. Coombs, 792 F.2d 915, 921 (9th Cir.
1986) (applying Carey to a substantive due process claim).
16            DEES V. COUNTY OF SAN DIEGO

But that analogy is pure hyperbole, especially since the
family court did nothing after receiving the letter. We have
no doubt that, if the family court case is ever reopened,
ample evidence—and a citation to this opinion—will
dissuade the family court from taking any action based on
what all acknowledge is a false representation in the letter.

    Sara also claims McCann violated her Fourteenth
Amendment familial association right when McCann
allegedly seized L at school. This presents a closer question.
But again, in light of our discussion above, we conclude that
Capp bars Sara from successfully pursuing this claim. Capp
plainly holds that a cause of action does not lie where the
social worker is accused of seizing a child and the parent has
not “actually lost” control over the child. Id. at 1060. Here,
McCann’s interview of L lasted five minutes. No evidence
suggests that McCann interviewed L to coerce or otherwise
intimidate either Sara or L. Instead, McCann simply
intended to “wrap things up.” In effect, Sara never actually
lost control over L. Moreover, as we hold below, see infra
§ IV.A, the district court erred in granting L judgment as a
matter of law on her Fourth Amendment claim, which also
precludes Sara’s Fourteenth Amendment claim on the
seizure. Accordingly, we reverse the district court’s grant to
Sara of judgment as a matter of law and, in the alternative, a
new trial.

                             IV

    Finally, we turn to L’s Fourth Amendment claim
regarding her alleged seizure at school. L’s claim went to
the jury, which answered “No” to the question of whether
“Caitlin McCann violate[ed] the 4th Amendment
Constitutional rights of . . . [L] when she conducted the –?”
Post-trial, the district court set aside the jury verdict and
concluded that, as a matter of law, McCann unreasonably
               DEES V. COUNTY OF SAN DIEGO                    17

seized L. In the alternative, the district court conditionally
granted a new trial to L on this claim. In doing so, the district
court made several findings, but on appeal the County
challenges only one finding: that the interview was an
unreasonable seizure. Because we agree on de novo review
with the County that substantial evidence supports the jury’s
verdict regarding the school interview, we reverse the
district court’s grant of judgment as a matter of law. But
because the clear weight of the evidence does not support the
jury’s verdict, in combination with our healthy deference to
the trial court, we affirm the grant of a new trial.

                               A

      The Fourth Amendment protects a child’s right to be free
from unreasonable seizure by a social worker. See
Kirkpatrick v. Cty. of Washoe, 843 F.3d 784, 790–91 (9th
Cir. 2016) (en banc). “A ‘seizure’ triggering the Fourth
Amendment’s protections occurs only when government
actors have, ‘by means of physical force or show of authority
. . . in some way restrained the liberty of a citizen.’” Graham
v. Connor, 490 U.S. 386, 395 n.10 (1989) (quoting Terry v.
Ohio, 392 U.S. 1, 19 n.16 (1968)). “When the actions of the
[official] do not show an unambiguous intent to restrain or
when an individual’s submission to a show of governmental
authority takes the form of passive acquiescence . . . a
seizure occurs if, ‘in view of all of the circumstances
surrounding the incident, a reasonable person would have
believed that he was not free to leave.’” Brendlin v.
California, 551 U.S. 249, 255 (2007) (quoting United States
v. Mendenhall, 446 U.S. 544, 554 (1980)). Whether a person
is seized for purposes of the Fourth Amendment is a mixed
question of law and fact. United States v. Cormier, 220 F.3d
1103, 1110 (9th Cir. 2000). Whether a person is being
compelled to answer an official’s questions, rather than
18            DEES V. COUNTY OF SAN DIEGO

freely consenting to answer them, is a question of fact.
United States v. Ryan, 548 F.2d 782, 789 (9th Cir. 1976).

    Turning to this case, the district court inappropriately
weighed the facts when it granted judgment as a matter of
law. In determining whether L did not consent to the
interview, the district court discounted the fact that the
interview lasted only five minutes. Additionally, the district
court acknowledged McCann’s testimony that “L did not
seem upset,” but then concluded, apparently solely on the
basis of Sara’s testimony, that “the circumstances show that
L was upset by the interview.” Finally, the district court did
not consider that L failed to end the conversation with
McCann despite being explicitly told that she could do so.
Broadly, the district court inappropriately weighed the facts
before it, despite acknowledging, earlier in the proceedings,
that seizure and consent are fact intensive inquires for which
the jury is well suited to make the determinations.

     Nor do the cases upon which the district court relied in
its decision to grant L judgment as a matter of law—Greene
v. Camreta, 588 F.3d 1011 (9th Cir. 2009) vacated in part
sub nom. Camreta v. Greene, 563 U.S. 692 (2011); Stoot v.
City of Everett, 582 F.3d 910 (9th Cir. 2009); Jones v. Hunt,
410 F.3d 1221 (10th Cir. 2005); and Doe v. Heck, 327 F.3d
492 (7th Cir. 2003)—compel the conclusion that L was
seized and did not consent to the interview. Each case is
factually distinguishable. First, in each case a police officer
either conducted the interview or was present during the
interview. Greene, 588 F.3d at 1017; Stoot, 582 F.3d at 913;
Jones, 410 F.3d at 1226; Heck, 327 F.3d at 510. No police
officer was present during McCann’s interview of L.
Furthermore, the interviews in Greene, Stoot, and Jones
lasted anywhere from one to two hours. Greene, 588 F.3d
at 1017; Stoot, 582 F.3d at 915; Jones, 410 F.3d at 1226. In
              DEES V. COUNTY OF SAN DIEGO                   19

Heck, the interview lasted twenty minutes. 327 F.3d at 510.
Here, in contrast, McCann’s interview of L was just five
minutes. To be sure, the fact that L was nine and suffers
from cognitive difficulties creates a higher probability that
she did not feel free to leave or may not have consented to
the interview. But, at a minimum, the factual differences
between Greene, Stoot, Jones, and Heck on the one hand and
this case on the other, undermines reliance on those cases
here. In short, the district court erred in finding that those
cases compelled the conclusion that L was seized and did not
consent as a matter of law.

    At bottom, the district court impermissibly weighed the
evidence before it and concluded that L was seized and did
not (or could not) consent as a matter of law. As the district
court, Sara, and L all acknowledge, the facts both support
and undercut the jury’s verdict. Viewing the evidence in the
light most favorable to the County and granting the County
all inferences therefrom, substantial evidence supports the
jury’s verdict. None of the caselaw cited by the district
court, Sara, or L supports the conclusion that, under the facts
of this case, L was seized and did not consent as a matter of
law. Accordingly, we reverse the district court’s grant to L
of judgment as a matter of law on her Fourth Amendment
claim.

                              B

    Although we reverse the district court’s grant of
judgment as a matter of law to L on her Fourth Amendment
claim, we affirm the district court’s grant of a new trial. We
acknowledge the tension in this decision. Above, we
conclude that the district court erred by granting L judgment
as a matter of law. Here, we conclude that the district court
properly granted a new trial on the same claim. But such a
decision is not unprecedented in this Circuit or our sister
20             DEES V. COUNTY OF SAN DIEGO

circuits. See Garter-Bare Co. v. Munsingwear Inc., 723 F.2d
707, 716–17 (9th Cir. 1984) (reversing grant of judgment as
a matter of law to a defendant while simultaneously
affirming the grant of a new trial to the same defendant);
Christopher v. Florida, 449 F.3d 1360, 1362 (11th Cir.
2006) (same).

    This result is not inherently contradictory and is driven
by the standard of review. The district court’s ruling on a
motion for new trial is reviewed for abuse of discretion
instead of de novo review, which we applied above. See
OTR Wheel Eng’g, Inc., 897 F.3d at 1022. Indeed, “[t]he
authority to grant a new trial . . . is confided almost entirely
to the exercise of discretion on the part of the trial court.”
Allied Chemical, 449 U.S. at 36 (emphasis added). The
district court’s decision to grant a new trial must stand unless
the jury’s verdict is supported by the clear weight of the
evidence and we “must uphold the district court if any of its
grounds for granting a new trial are reasonable.” 4.0 Acres
of Land, 175 F.3d at 1139.

    With this highly deferential standard of review firmly in
mind, we turn to the district court’s opinion. The bulk of the
opinion analyzes whether Sara and L were entitled to
judgment as a matter of law. On the final page of the
opinion, the district court acknowledged its obligation to rule
on the alternative motion for a new trial and held “the Court
conditionally grants the motion for a new trial because the
clear weight of the evidence does not support the verdict.”

     First, we dispose of the sole argument offered by the
County regarding the district court’s decision to order a new
trial: namely, that the district court “failed to identify how
the verdict was against the clear weight of the evidence, or
what evidence it relied on in reaching that conclusion.” We
disagree. The district court issued a well-reasoned, though
               DEES V. COUNTY OF SAN DIEGO                    21

ultimately incorrect, opinion granting judgment as a matter
of law, which is, of course, a higher standard for plaintiffs to
meet than the standard for a new trial. Requiring the district
court to copy and paste its judgment as a matter of law
analysis under a separate header for a new trial makes little,
if any, sense. The district court did not abuse its discretion
by failing to do so.

    Second, the district court did not abuse its discretion by
ordering a new trial. Properly framed, the question is
whether the district court abused its discretion in concluding
that the jury’s verdict was not supported by the clear weight
of the evidence. 4.0 Acres of Land, 175 F.3d at 1139. The
County’s burden in persuading us that the district court
abused its discretion is an extraordinarily high hurdle, as the
Supreme Court has made clear. Allied Chemical Corp.,
449 U.S. at 36.

     Rightfully so. The district court, having sat through all
of the testimony and with the benefit of credibility
determinations that cannot readily be made on a cold record,
felt so strongly that the jury erred that he ordered a new trial.
Moreover, the facts here support the “reasonableness” of the
district court’s opinion: it is at least arguable whether a nine-
year old girl with cognitive disabilities, called into the
administrative office of her school by a woman who she
knew had the authority to disrupt her family’s life, would
feel empowered to leave or could have consented to the
discussion. Cf. J.D.B. v. North Carolina, 564 U.S. 261, 272
(2011) (holding that a thirteen-year-old’s age would have
affected how a reasonable person in the suspect’s position
would perceive his or her freedom to leave for purposes of
Miranda’s custody determination (quotations omitted)).
While substantial evidence supports the jury’s verdict, the
clear weight of the evidence does not compel it. In short, the
22             DEES V. COUNTY OF SAN DIEGO

district court did not abuse its discretion in concluding that
the jury’s verdict was not supported by the clear weight of
the evidence.

                               V

    Sara and L’s Fourteenth Amendment claims regarding
the false letter are barred by our decisions in Capp and
Mann, as is Sara’s Fourteenth Amendment claim regarding
the school seizure.         Moreover, substantial evidence
supported the jury’s verdict in favor of the County on L’s
Fourth Amendment claim. However, the district court did
not abuse its discretion in concluding that the clear weight of
the evidence did not support the jury’s verdict on L’s Fourth
Amendment claim.

     Each party shall bear its own costs on appeal.

  AFFIRMED IN PART and REVERSED AND
REMANDED IN PART.


CALLAHAN, Circuit Judge, concurring in part and
dissenting in part:

    I concur in the majority opinion affirming the district
court’s judgment in favor of the County employees on the
claims involving the false letter, reversing the district court’s
grant of judgment as a matter of law on L and Sara’s Fourth
and Fourteenth Amendment claims regarding seizure, and
reversing the conditional grant of a new trial to Sara on her
seizure claim. However, I would vacate the district court’s
conditional grant of a new trial to L. The majority sustains
the district court’s grant of a new trial holding that the
district court did not abuse its discretion in deciding that the
               DEES V. COUNTY OF SAN DIEGO                    23

jury’s verdict was not supported by the clear weight of the
evidence. I disagree.

     As noted by the majority, in United States v. 4.0 Acres of
Land, 175 F.3d 1133, 1139 (9th Cir. 1999), we held that a
“trial court may grant a new trial, even though the verdict is
supported by substantial evidence,” and that we should
“uphold the district court if any of its grounds for granting a
new trial are reasonable.” But we also stated that such a
grant is proper only “if ‘the verdict is contrary to the clear
weight of the evidence, or is based upon evidence which is
false, or to prevent, in the sound discretion of the trial court,
a miscarriage of justice.’” Id. (quoting Oltz v. St. Peter’s
Community Hosp., 861 F.2d 1440, 1452 (9th Cir.1988)). We
noted that “[t]he corollary, of course, is that a district court
may not grant or deny a new trial merely because it would
have arrived at a different verdict.” Id. (citing Wilhelm v.
Associated Container Transp. (Australia) Ltd., 648 F.2d
1197, 1198 (9th Cir. 1981)). We held that “we may find that
a district court abused its discretion in ordering a new trial if
the jury’s verdict is not against the clear weight of the
evidence.” Id. (citing Roy v. Volkswagen of Am. Inc.,
896 F.2d 1174, 1176 (9th Cir. 1990), amended, 920 F.2d 618
(1991)). In 4.0 Acres, we actually vacated the grant of a new
trial, noting that “[w]here the jury’s verdict is not against the
clear weight of the evidence, a district court abuses its
discretion in ordering a new trial.” Id. at 1143.

     This is one of those instances where the district court
abused its discretion in granting a new trial contrary to the
jury’s determination. The question whether “Caitlin
McCann violat[ed] the 4th Amendment Constitutional right
of . . . [L] when she conducted the school interview” was put
to the jury. The jury, which heard all the evidence, answered
“No.” The brevity of the in-school interview was not
24               DEES V. COUNTY OF SAN DIEGO

contested. Nor was L’s agreement to speak with McCann or
her behavior during the interview. There was some
conflicting evidence as to L’s subsequent reaction to the
interview, but, again, the jury heard all that evidence. Even
giving all of L’s witnesses the benefit of the doubt, a jury
would not likely conclude—in light of the uncontested facts
surrounding the interview—that the five-minute interview
violated L’s Fourth Amendment constitutional rights.

    As the majority correctly notes in vacating the district
court’s grant of judgment as a matter of law, our prior
decisions cited by L do not require a finding that her
interview constituted an unreasonable seizure. Our most
recent precedent, Greene v. Camreta, 588 F.3d 1011 (9th
Cir. 2009), concerned a two-hour questioning of an
elementary school girl by a social worker and an armed
police officer in a private office at the girl’s school. Id.
at 1015. The social worker did not have a warrant, probable
cause, or parental consent. Id. The defendants did not
contest that the two-hour interview constituted a seizure but
argued that it was not unreasonable. Id. at 1022. We
recognized that the defendants’ claim of qualified immunity
required a delicate balancing of competing interests, and we
ultimately held that although the two-hour interview
constituted an unreasonable seizure in violation of the young
girl’s constitutional rights, the defendants were entitled to
qualified immunity. 1 Id. at 1033.




     1
       Similarly in Stoot v. City of Everett, 582 F.3d 910 (9th Cir. 2009),
where a fourteen-year-old boy was taken out of his school class and
interviewed for about two hours, the defendant officer did not contest
that the interview constituted a seizure. In Stoot, we again affirmed the
district court’s grant of qualified immunity for the seizure.
                DEES V. COUNTY OF SAN DIEGO                         25

    Recognizing that Greene was a close case, what in our
case supports the determination that the jury verdict was not
supported by the clear weight of the evidence? Certainly, as
the majority asserts, it “is at least arguable whether a nine-
year old girl with cognitive disabilities, called into the
administrative office of her school by a woman who she
knew had the authority to disrupt her family’s life, would
feel empowered to leave or could have consented to the
discussion.”    Majority at 21.          But, at most, these
considerations support a determination that the interview
constituted a seizure. They do not require, or inherently
support, a determination that the “seizure” was
unreasonable.

    More importantly, what is “at least arguable” does not
address the weight of the evidence. A number of
uncontested facts support the jury’s verdict. Although L
suffers from several cognitive disabilities, she is very bright.
She was asked if she wanted a school staff member to be
present during the interview and she said no. L was asked if
she was willing to talk to McCann, and she agreed to do so.
The interview lasted only five minutes, during which L
answered McCann’s questions and indicated that she did not
have any questions for McCann. After the interview L was
escorted back to her classroom and, according to school
officials, did not seem upset. 2

     My colleagues and I agree that substantial evidence
supported the jury’s verdict. We not only conclude that the
trial court erred in granting judgment as a matter of law by
improperly weighing the evidence, but, critically, we also

    2
       Contrary to the situation in Greene, there is no indication that
McCann was threatening, and she was not accompanied by a police
officer (a fact that was stressed in our opinion in Greene).
26              DEES V. COUNTY OF SAN DIEGO

conclude that the evidence was sufficient to support the
jury’s verdict. Majority at 19 (“None of the caselaw cited
. . . supports the conclusion that, under the facts of this case,
L was seized and did not consent as a matter of law.”). In
light of this determination, for us to sustain the grant of a
new trial, it should be clear what evidence is contrary to the
jury’s verdict. Here, the only explanation offered by the trial
court was its understanding of the applicable law, which we
have held was incorrect. Furthermore, this is not a situation
where a party could not present all the relevant information
to the jury or where the judge was privy to information not
shared by the jury. 3

     This appeal presents a relatively unique situation. After
an issue had been referred to a jury and the jury returned its
decision, the trial court granted judgment as a matter of law
and conditionally granted the motion for a new trial, contrary
to the jury’s determination. Then, on appeal, we hold that
(1) district court erred in granting judgment as a matter of
law, and (2) the jury’s finding is supported by substantial
evidence. In such a situation, the grant of a motion for a new
trial is an abuse of discretion unless it is clear from the
record, or from the trial court’s explanation, why the jury’s
verdict was not supported by the clear weight of the
evidence. See 4.0 Acres, 175 F.3 at 1143 ( “Where the jury’s
verdict is not against the clear weight of the evidence, a
district court abuses its discretion in ordering a new trial.”).
Because my review of the record reveals substantial
evidence that supports the jury’s determination, and the trial
court has not indicated what evidence might undermine the


     3
     There is no suggestion that any of the evidence presented was false
and we see no evidence of a “miscarriage of justice.” See 4.0 Acres,
175 F.3d at 139.
              DEES V. COUNTY OF SAN DIEGO                  27

jury’s verdict, I would vacate the grant of the motion for new
trial.
