                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 07 2012

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




                            FOR THE NINTH CIRCUIT



PLANS INC.,                                      No. 10-17720

              Plaintiff - Appellant,             D.C. No. 2:98-cv-00266-FCD-
                                                 EFB
  v.

SACRAMENTO CITY UNIFIED                          MEMORANDUM *
SCHOOL DISTRICT and TWIN RIDGES
ELEMENTARY SCHOOL DISTRICT,

              Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Eastern District of California
                 Frank C. Damrell, Senior District Judge, Presiding

                        Argued and Submitted May 17, 2012
                             San Francisco, California

Before: REINHARDT, CLIFTON, and N.R. SMITH, Circuit Judges.

       PLANS appeals from the district court’s entry of judgment after a bench trial

on the basis of a partial finding under Rule 52(c) of the Federal Rules of Civil

Procedure. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The district court’s “evidentiary rulings are reviewed for an abuse of discretion,

and will not be reversed absent a showing of prejudice.” Larez v. City of Los Angeles,

946 F.2d 630, 638 (9th Cir. 1991). We hold that the district court did not abuse its

discretion in excluding all but one of the exhibits that PLANS proposed.

      Reviewing the district court’s findings of fact for clear error and its conclusions

of law de novo, Dubner v. City & Cnty. of San Francisco, 266 F.3d 959, 964 (9th Cir.

2001), we agree that PLANS failed to meet its burden of showing that anthroposophy

is a religion for purposes of the Establishment Clause. Although we express no view

as to whether anthroposophy could be considered a religion on the basis of a fuller or

more complete record, the record as it is before us is simply too thin to sustain that

conclusion.

      PLANS argues on appeal that a determination that anthroposophy is a religion

is not necessary for it to prevail on its Establishment Clause claim. This argument may

be correct. PLANS waived it, however, by failing to raise it below, in response to the

motion for judgment under Rule 52(c), and by twice agreeing to the bifurcation of the

trial. PLANS’s counsel signed a Joint Final Pretrial Conference Statement describing

the question “whether Anthroposophy is a religion” as a “threshold issue,” which

would “be adjudicated first.” PLANS failed to object to the district court’s inclusion

of the same language in the Pretrial Conference Order. It is clear from the record that


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the parties agreed, for purposes of this case, that unless anthroposophy is a religion,

PLANS could not prevail. There could be no other purpose to the bifurcation of the

trial. “We have consistently held that issues not preserved in the pretrial order have

been eliminated from the action.” S. Cal. Retail Clerks Union & Food Emp’rs Joint

Pension Trust Fund v. Bjorklund, 728 F.2d 1262, 1264 (9th Cir. 1984).

      PLANS had yet another opportunity to raise the issue in response to the

defendants’ motion for judgment on the basis of a partial finding: it could have argued

that its claim was not one that could “be maintained or defeated only with a favorable

finding on” the question whether anthroposophy is a religion. Fed. R. Civ. P. 52(c).

It made no such argument.

      Because PLANS failed to argue below that it could prevail even if

anthroposophy is not a religion, we will not consider that argument here. Smith v.

Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999); see also Mendoza v. Block, 27 F.3d

1357, 1359-60 (9th Cir. 1994).

      AFFIRMED.




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