                                                                              FILED
                           NOT FOR PUBLICATION                                APR 27 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


SUSAN CLOSSON and CHARLES R.                     No. 13-15317
CLOSSON,
                                                 D.C. No. 2:11-cv-00275-JCM-
              Plaintiffs - Appellants,           GWF

  v.
                                                 MEMORANDUM*
BANK OF AMERICA, NA; BAC HOME
LOANS SERVICING LP; JILL
WOSNAK; and DOES 1-20,

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Nevada
                    James C. Mahan, District Judge, Presiding

                       Argued and Submitted April 16, 2015
                            San Francisco, California

Before: SCHROEDER and N.R. SMITH, Circuit Judges, and RESTANI,** Judge.

       Susan and Charles Closson appeal the district court’s judgment in Bank of

America’s (“BOA”) favor following a jury trial on their breach of contract and

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Jane A. Restani, Judge for the U.S. Court of
International Trade, sitting by designation.
breach of the implied covenant of good faith and fair dealing claims arising from

the foreclosure of the Clossons’ property. We have jurisdiction under 28 U.S.C.

§ 1291. The Clossons argue that the district court erred in allowing BOA to argue

the unpled affirmative defense of release and in admitting evidence of their post-

March 2008 financial difficulties, and also argue the district court engaged in

judicial misconduct at trial. We conclude that there was no harm in allowing BOA

to argue the affirmative defense of release, the district court did not abuse its

discretion in admitting the evidence of the Clossons’ post-March 2008 financial

troubles, and the district court judge did not engage in judicial misconduct; thus we

affirm.

      We need not determine whether the district court erred in allowing BOA to

argue the affirmative defense of release because even if it did, any error was

harmless and does not warrant a reversal. If a jury’s verdict is “more probably than

not untainted by the error,” reversal is not required. Obrey v. Johnson, 400 F.3d

691, 699, 701 (9th Cir. 2005); Haddad v. Lockheed Cal. Corp., 720 F.2d 1454,

1459 (9th Cir. 1983). Because the jury found that the Clossons failed to meet their

burden of proving BOA breached their contract and the implied covenant of good

faith and fair dealing, it did not need to evaluate any affirmative defenses, whether




                                           2
waiver or release, to reach its decision. Any error in allowing evidence and

argument on that defense, thus, was harmless.

      The district court did not abuse its discretion in allowing evidence of the

Clossons’ financial troubles after March 2008 to be introduced at trial because it

was relevant and not unduly prejudicial. The evidence was relevant because it was

probative of the Clossons’ ability to perform their contractual obligations and of

the inevitability of foreclosure, breaking the link to the Clossons’ damage

allegations against BOA for the tax liability due to debt forgiveness. As the

Clossons did not renew their prejudice objection at trial after the district court

judge invited them to do so in his ruling on their motion in limine to exclude the

evidence, this aspect of the objection is to be reviewed for plain error. See Fed. R.

Evid. 103 advisory committee’s notes on 2000 amendments; Beachy v. Boise

Cascade Corp., 191 F.3d 1010, 1016 (9th Cir. 1999) (reviewing evidentiary ruling

for plain error where party failed to raise the objection at trial). Under any

standard, however, the evidence was not unduly prejudicial because the risk of jury

confusion concerning the evidence was low, the evidence was straightforward and

the time period of the evidence was made clear.

      Finally, the district court judge did not engage in judicial misconduct at trial.

A new trial based on judicial misconduct is warranted only if, from the record, a


                                           3
judge’s action “shows actual bias or leaves an abiding impression that the jury

perceived an appearance of advocacy or partiality.” United States v. Laurins, 857

F.2d 529, 537 (9th Cir. 1988); see Shad v. Dean Witter Reynolds, Inc., 799 F.2d

525, 531 (9th Cir. 1986) (holding that trial judge’s conduct was not improper when

judge questioned witness, criticized counsel, and managed the pace of the trial).

Although the district court judge interrupted questioning, admonished the

Clossons’ counsel, and denied most of the Clossons’ motions, he did so to thwart

leading questions, to aid the jury’s understanding on the key issue (i.e. the

interpretation of the contract), and to facilitate the overall trial process. The jury

instructions made clear that it was up to the jury to interpret the contract. There

was no misconduct.

      AFFIRMED.




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