                                                                            FILED
                           NOT FOR PUBLICATION                              JAN 07 2011

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




                            FOR THE NINTH CIRCUIT



CAL-AGREX, INC.,                                 No. 09-15998

             Plaintiff - Appellee,               D.C. No. 3:07-cv-00964-SC

  v.

DEE VAN TASSELL and JERRY                        MEMORANDUM *
GOODWIN,

             Defendants - Appellants.



                    Appeal from the United States District Court
                       for the Northern District of California
                      Samuel Conti, District Judge, Presiding

                     Argued and Submitted November 3, 2010
                            San Francisco, California

Before: GOULD and CALLAHAN, Circuit Judges, and ENGLAND, District
Judge .**

       Dee Van Tassell and Jerry Goodwin (“Appellants”) seek to overturn the jury

verdict reached against them in connection with an agreement to sell bulk

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

       **
             The Honorable Morrison C. England, Jr., United States District Judge
for the Eastern District of California, sitting by designation.
powdered milk to Cal-Agrex, Inc. (“Cal-Agrex”). We have jurisdiction under 28

U.S.C. § 1291. In addition to challenging the viability of Cal-Agrex’s contractual

claims by asserting that no breach could have occurred because a condition

precedent to performance under the contract was never satisfied, Appellants also

claim that the district court erred in declining to instruct the jury on their proffered

“unclean hands” defense. Appellant Goodwin further contends that substantial

evidence did not support the jury verdict in Cal-Agrex’s favor on his counterclaims

for conversion and unjust enrichment. Finally, Appellants assert that the district

court’s decision to deny remittitur following the jury verdict constituted clear error.

     Judgment following a jury trial “must be affirmed if there is substantial

evidence to support the verdict.” Swinton v. Potomac Corp., 270 F.3d 794, 802

(9th Cir. 2001) (quoting Gilbrook v. City of Westminster, 177 F.3d 839, 856 (9th

Cir. 1999)). As the Supreme Court has noted, “credibility determinations, the

weighing of the evidence, and the drawing of legitimate inferences from the facts

are jury functions.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

“[A]lthough the court should review the record as a whole, it must disregard

evidence favorable to the moving party that the jury is not required to believe, and

may not substitute its view of the evidence for that of the jury.” Johnson v.




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Paradise Valley Unified Sch. Dist., 251 F.3d 1222, 1227 (9th Cir. 2001) (internal

quotations omitted).

      We review the district court’s denial of Appellants’ renewed motion for

judgment as a matter of law de novo, and apply the same deferential standard as the

district court; namely, whether the evidence, viewed in the light most favorable to

Cal-Agrex, supports only one reasonable conclusion– a conclusion that the jury’s

verdict was wrong. See Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002).

Similarly, the denial of a motion for new trial under Federal Rule of Civil

Procedure 59(a) is reviewed for a clear abuse of discretion, and the district court’s

decision should only be disturbed “where there is an absolute absence of evidence

to support the jury’s verdict.” Desrosiers v. Flight Int’l of Fla., Inc., 156 F.3d 952,

957 (9th Cir. 1998) (quoting Pulla v. Amoco Oil Co., 72 F.3d 648, 656-57 (8th Cir.

1995)).

      Appellants’ primary argument on appeal is that, as a matter of law, they

could not have breached the December 2004 contract with Cal-Agrex because the

contract contained a condition that $2,000,000.00 had to be wired to Van Tassell’s

account by December 2004. Because only a total of $1,500,000.00 was paid,

Appellants argue that any delivery obligation on their part for powdered milk was




                                           3
excused. They maintain that the verdict in Cal-Agrex’s favor must consequently

be overturned. We disagree.

     Cal-Agrex produced substantial evidence at trial that Appellants either waived

the condition that the entire $2,000,000.00 deposit be paid, or agreed to a

modification of the contract in that regard. Cal-Agrex’s president, Rod Gallegos,

testified at trial to that effect, and Appellants themselves conceded that they

continued to treat the contract as ongoing after the December 24, 2004 deadline

passed, and in fact continued to do so for approximately another year and a half,

until mid-2006. Although some conflicting evidence to the contrary was

introduced, any resolution as to what occurred required an assessment of whether

Gallegos’ word was entitled to more credence than the version of events offered by

Appellants. That credibility determination was correctly made by the jury.

      Appellants fare no better in arguing that the district court improperly refused

to instruct the jury on their “unclean hands” defense. First, the district judge did

not err in making a determination himself as to the viability of that defense. “The

application or rejection of the clean hands doctrine in a given case is equitable in

nature and within the discretion of the trial court.” Wash. Capitols Basketball

Club, Inc. v. Barry, 419 F.2d 472, 478 (9th Cir. 1969). Nor was there any error in

the district court’s substantive decision as to the availability of the doctrine. As


                                           4
the district court pointed out, no powdered milk was ever shipped under the

contract in question, and actions unrelated to the contract could not serve as a

factual predicate for application of the unclean hands defense. Moreover, there

was evidence that Appellants knew that Cal-Agrex intended to export the

powdered milk for human consumption, and the district court found Appellants’

claimed lack of knowledge in that regard not credible. Particular deference should

be accorded to the district court’s credibility assessments. See Beech Aircraft

Corp. v. United States, 51 F.3d 834, 838 (9th Cir. 1995) (per curiam).

        Although Appellant Goodwin also points to Cal-Agrex’s alleged conversion

of 28 truckloads of dried milk as supporting application of an unclean hands

defense, there was ample evidence to buttress the district court’s finding that those

28 loads were taken as replacement for another delivery that Goodwin was

supposed to provide under a different contract between the parties. Because

Goodwin’s counterclaims against Cal-Agrex for conversion and unjust enrichment

also hinge on whether taking the 28 loads was wrongful, those claims similarly

fail.

         Finally, although Appellants contend that Cal-Agrex’s damage award should

have been reduced by way of remittitur, the district court’s decision in that regard

is subject to reversal only upon a showing of “clear abuse of discretion.” See Los


                                          5
Angeles Police Protective League v. Gates, 995 F.2d 1469, 1477 (9th Cir. 1993).

Appellants’ contentions in support of a reduction of damages were premised on the

assumption that the jury’s breach of contract verdict was unfounded. Because the

breach of contract verdict should stand, Appellants’ argument for remittitur fails.

      AFFIRMED.




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