                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 21 2011

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




                            FOR THE NINTH CIRCUIT



LUIS GOMEZ; MARIA GILA GOMEZ,                    No. 10-55144

              Plaintiffs - Appellants,           D.C. No. 2:07-cv-00790-ODW-SH

  v.
                                                 MEMORANDUM *
CITY OF TORRANCE; TORRANCE
POLICE DEPARTMENT; DAVID
MAITLEN, Officer,

              Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Central District of California
                     Otis D. Wright, District Judge, Presiding

                              Submitted June 6, 2011 **
                                Pasadena, California

Before: O’SCANNLAIN and IKUTA, Circuit Judges, and PIERSOL, Senior
District Judge.***



        *
             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).
        ***
             The Honorable Lawrence L. Piersol, Senior United States District
Judge for the District of South Dakota, sitting by designation.
      The district court did not abuse its discretion in bifurcating the trial into a

statute of limitations phase and a liability phase because the statute of limitations

issue was dispositive, see Exxon Co. v. Sofec, Inc., 54 F.3d 570, 575 (9th Cir.

1995); see also Fed. R. Civ. P. 42(b), and the issues associated with the equitable

estoppel and liability claims were not so interwoven as render bifurcation

inappropriate, see Hilao v. Estate of Marcos, 103 F.3d 767, 782 (9th Cir. 1996).

      The district court did not improperly exclude evidence regarding the fourth

surveillance tape or the white car. The Gomezes never offered the fourth

surveillance video for admission into evidence. Any error in excluding evidence

regarding Officer Maitlen’s alleged fabrication of a story about a driver of a white

car was harmless as to the Gomezes’ equitable estoppel claim, because there was

no evidence that the Gomezes were aware of this incident, and so they could not

have relied on Officer Maitlen’s alleged misrepresentation. See Guerrero v. Gates,

442 F.3d 697, 706–07 (9th Cir. 2006); Santa Maria v. Pac. Bell, 202 F.3d 1170,

1176 (9th Cir. 2000). The exclusion of the “white car” evidence was also harmless

as to the Gomezes’ imputed concealment claim (i.e., the claim that Officer

Maitlen’s alleged intent to defraud the Gomezes by proffering the white car story

should be imputed to the police department), because the Gomezes offered no

evidence of collusion between Maitlen and the police department on this issue. Cf.

Riddell v. Riddell Wash. Corp., 866 F.2d 1480, 1493 (D.C. Cir. 1989).
      Although the district court erred in failing to instruct the jury that “the

plaintiff’s actual and reasonable reliance on the defendant’s conduct or

representations” is one factor in a finding of equitable estoppel, Santa Maria, 202

F.3d at 1176, the error was harmless because the Gomezes failed to offer evidence

that they relied on the police report or that the attorneys whom they consulted

declined to take the case because of the police report, see Snyder v. Freight,

Constr., Gen. Drivers, Warehousemen & Helpers, Local No. 287, 175 F.3d 680,

688 n.12 (9th Cir. 1999).

      The district court did not err in failing to define the word “prevent,” because

it is a “‘common term[] that [is] readily understandable to the jury,’” see United

States v. Somsamouth, 352 F.3d 1271, 1275 (9th Cir. 2003) (quoting United States

v. Shryock, 342 F.3d 948, 986 (9th Cir. 2003)), and any ambiguity regarding the

intent requirement was clarified earlier in the jury instructions, see Guebara v.

Allstate Ins. Co., 237 F.3d 987, 992 (9th Cir. 2001). Finally, although the district

court erred in instructing the jury that, in order to impose liability on the City, the

Gomezes were required to prove that an individual city official or employee was

liable for any fraudulent concealment pursuant to a “policy, custom, or

longstanding practice,” such error was harmless because the verdict form indicates

that the jury did not find that any of the individual defendants were liable. The


                                            3
Gomezes waived their claim that including the names of police officers who were

not defendants on the verdict form was an error because they failed to offer or

develop any argument regarding this claim in their opening brief. United States v.

Kama, 394 F.3d 1236, 1238 (9th Cir. 2005).

      The district judge’s questioning of witnesses and the judge’s allegedly

improper gestures and expressions at trial did not deprive the Gomezes of a fair

trial. The district judge’s questioning of witnesses was not improper and appears

to have been for the purpose of clarifying each witness’s testimony, see United

States v. Mostella, 802 F.2d 358, 361 (9th Cir. 1986), and there is no evidence in

the record that the district judge’s expressions or gestures overstepped propriety,

see Larson v. Palmateer, 515 F.3d 1057, 1067 (9th Cir. 2008).

      AFFIRMED.




                                          4
