                                                                             FILED
                            NOT FOR PUBLICATION
                                                                              AUG 08 2016
                     UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ALAN FEIMAN,                                      No.    14-56299

              Plaintiff-Appellant,                D.C. No.
                                                  2:12-cv-03549-JGB-JC
 v.

CITY OF SANTA MONICA; et al.,                     MEMORANDUM*

              Defendants-Appellees.


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

                       Argued and Submitted August 1, 2016
                               Pasadena, California

Before: O’SCANNLAIN, RAWLINSON, and CALLAHAN, Circuit Judges.

      Alan Feiman, a professional Marx Brothers impersonator, was arrested for

allegedly violating California Penal Code § 647(f) which makes it illegal to be

intoxicated in public “in a condition that he or she is unable to exercise care for his

or her own safety or the safety of others.” He was released after six hours and no



         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
criminal charges were brought against him. Feiman filed this § 1983 action

alleging that his arrest and detention violated his constitutional rights, primarily

because the officer had no probable cause to detain him. His action went to trial

and the jury returned a verdict in favor of the defendant officers. Feiman appeals,

arguing that the district court (1) erred in dismissing his claims under the Bane Act,

California Civil Code § 52.1; (2) abused its discretion by imposing a 5-hour limit

on the presentation of his case; (3) erred in denying his post-verdict motions

regarding probable cause to arrest; (4) improperly instructed the jury; (5)

improperly limited the testimony of a percipient witness; and (6) erred in refusing

to allow Feiman to testify that he had never been arrested before. We affirm.

      1. The district court did not err in dismissing Feiman’s claim under the Bane

Act, California Civil Code § 52.1. The Bane Act provides for a cause of action

where the defendant used “threat, intimidation, or coercion” to interfere with the

plaintiff’s constitutional rights. The district court, relying on Gant v. County of

Los Angeles, 765 F. Supp. 2d 1238 (C.D. Cal. 2011), held that a wrongful arrest

without more does not satisfy the elements of the Bane Act. In Lyall v. City of Los

Angeles, 807 F.3d 1178, 1196 (9th Cir. 2015), we affirmed that a plaintiff must

allege threats or coercion beyond the coercion inherent in a detention in order to

recover under the Bane Act. We are bound by Lyall. Lair v. Bullock, 798 F.3d


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736, 745 (9th Cir. 2015) (as amended); Gomez v. Campbell-Ewald Co., 768 F.3d

871, 875 (9th Cir. 2014). As Feiman has not alleged coercion beyond that inherent

in his detention, the district court’s dismissal of his Bane Act claims is affirmed.

      2. Feiman has not shown that he is entitled to relief based on the district

court’s imposition of a 5-hour time limit on the presentation of his case. We

“review[] issues relating to the management of trial for an abuse of discretion.”

Gen. Signal Corp v. MCI Telecomms. Corp., 66 F.3d 1500, 1507 (9th Cir. 1995).

Although rigid time limits are disfavored, a party objecting to the time limit “must

show there was harm incurred as a result” of the limitation. Monotype Corp. PLC

v. Int’l Typeface Corp., 43 F.3d 443, 451 (9th Cir. 1994). Feiman did not object

when the district court imposed its time limit at the final pretrial conference, he did

not make an offer of proof when time expired for the presentation of his case, and

his motion for new trial failed to explain how the time limit substantially

prejudiced the presentation of his claims. Feiman has not shown either that time

pressures precluded him from calling additional witnesses or that the additional

witnesses were critical to his case. Accordingly, he has not shown the prejudice

necessary to warrant relief.

      3. The district court did not err in denying Feiman’s post-trial motion

regarding probable cause for his arrest. The denial of a motion for judgment as a


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matter of law is reviewed de novo, but the Ninth Circuit gives substantial deference

to the jury’s verdict. A.D. v. Cal. Highway Patrol, 712 F.3d 446, 452–53 (9th Cir.

2013). An appellate court can only reverse if the verdict was contrary to the clear

weight of the evidence. Tortu v. Las Vegas Metro. Police Dep’t., 556 F.3d 1075,

1083 (9th Cir. 2009). There was conflicting evidence as to whether Feiman

appeared to be incapacitated due to intoxication. Feiman has not shown that the

jury’s verdict was not supported by the evidence. The district court’s denial of his

post-trial motion for judgment as a matter of law is affirmed.

      4. The district court did not err in declining Feiman’s proposed jury

instruction concerning California Penal Code § 647(f). We review a district

court’s formulation of jury instructions in a civil case for abuse of discretion,

White v. Ford Motor Co., 312 F.3d 998, 1012 (9th Cir. 2002), but review de novo

whether the instruction misstates the law. Fireman’s Fund Ins. Co. v. Alaskan

Pride P’ship, 106 F.3d 1465, 1469 (9th Cir. 1997). Jury Instruction 20 was based

on a Ninth Circuit Model Instruction and quoted § 647(f) verbatim. The district

court did not misstate the law. Feiman’s proposed language reiterated what was

obvious in § 647(f) and did not improve on its language.

      5. The district court did not commit prejudicial error by limiting the

testimony of Ron Cordiel. We afford broad deference to a district court's


                                           4
evidentiary rulings, and to reverse we must find that the district court abused its

discretion and that the error was prejudicial. Harper v. City of Los Angeles, 533

F.3d 1010, 1030 (9th Cir. 2008). In a pretrial order, the district court ruled that

Cordiel as a lay witness could testify as to whether Feiman appeared to be

intoxicated when he was detained, but could not testify that he would have known

if Feiman was intoxicated because Cordiel did not qualify as an expert witness

under Federal Rule of Evidence 702. At trial, Cordiel testified that Feiman did not

appear to be intoxicated. It does not appear that the district court’s limitation on

Cordial’s testimony was an abuse of discretion, but even if it were, Feiman has

failed to show prejudice from the limitation.

      6. Finally, as Feiman’s personal history at most would have been relevant

only to his claim of damages and we affirm the district court’s ruling in favor of

defendants, we find neither an abuse of discretion nor prejudice from the district

court’s refusal to allow Feiman to testify that he had never been previously

arrested.

      The judgment for the defendants is AFFIRMED.




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