                              NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS
                                                                            FILED
                              FOR THE NINTH CIRCUIT
                                                                             JUL 26 2017
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
WILLIAM RAY ESPOINOZA,                           No.   15-56890

              Plaintiff,                         D.C. No.
                                                 5:14-cv-00085-JGB-SP
  and

WILLIAM ESPINOZA, Jr.; et al.,                   MEMORANDUM*

              Plaintiffs-Appellants,

 v.

STANLEY SNIFF, an individual; et al.,

              Defendants-Appellees.


                    Appeal from the United States District Court
                        for the Central District of California
                     Jesus G. Bernal, District Judge, Presiding

                           Argued and Submitted July 13, 2017
                                  Pasadena, California

Before: REINHARDT, FERNANDEZ, and WARDLAW, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Espinoza appeals the district court’s refusal to instruct the jury on

presumptive negligence under California Evidence Code § 669 based on alleged

violations of the Riverside County Sheriff’s Department Corrections Division

Policy regarding classification and housing, which plaintiffs contend led to the

death of an inmate.

      California Evidence Code § 669.1 provides that an internal policy cannot be

the basis of a presumptive negligence instruction unless it “has been formally

adopted as a statute, as an ordinance of a local governmental entity, . . . or as a

regulation by an agency of the state pursuant to the Administrative Procedure Act.”

There is no indication that the Policy was ever so adopted. Instead, Espinoza points

out that a state regulation (Cal. Code Regs., tit. 15, § 1050) required the jail to

adopt some policy governing inmate classifications.

      However, an ex ante direction to adopt a general policy that does not specify

its specific terms is not the same as an ex post adoption of that policy. The

regulation is thus not an adoption of the Policy as a statute, ordinance, or

regulation. The Policy therefore cannot be the basis of a presumptive negligence

instruction, and the district court did not err by refusing to give that instruction.

      The judgment of the district court is AFFIRMED.




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