                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 10 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

MARY HOLZHAUER, Individually and as             No.    17-16762
the Personal Representative of Harry
Holzhauer, deceased,                            D.C. No. 3:13-cv-02862-JST

      Plaintiff-counter-
      defendant-Appellant,                      MEMORANDUM*

 v.

GOLDEN GATE BRIDGE HIGHWAY &
TRANSPORTATION DISTRICT, a
governmental entity and DAVID P.
RHOADES, an Individual,

      Defendants-cross-
      defendants-cross-claimants-
      Appellees.

                   Appeal from the United States District Court
                     for the Northern District of California
                     Jon S. Tigar, District Judge, Presiding

                       Argued and Submitted June 14, 2018
                            San Francisco, California

Before: SCHROEDER and GOULD, Circuit Judges, and DU,** District Judge.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Miranda M. Du, United States District Judge for the
District of Nevada, sitting by designation.
      Plaintiff, Mary Holzhauer, representative of the estate of Harry Holzhauer,

appeals the district court’s denial of her motion for a new trial after the jury

awarded Mr. Holzhauer’s adult children, Tim and Jeffery, zero dollars in non-

economic damages. “We review the trial court’s decisions on motions for a new

trial on the grounds that the verdict is against the clear weight of the evidence for

an abuse of discretion,” Landes Const. Co. v. Royal Bank of Canada, 833 F.2d

1365, 1372 (9th Cir. 1987), and we affirm.

      Plaintiff argues that the evidence showed that Mr. Holzhauer was a big part

of his adult children’s lives. Mr. Holzhauer had pursued joint work in real estate

with Tim and Jeffrey, had subsidized some of their living expenses during career

changes, and had promised to pay his grandchildren’s college tuitions. Plaintiff

argues that there is “simply no way” the jury could have found no loss if the jury

had followed the district court’s instruction. Defendants argue that the district

court did not abuse its discretion by denying Plaintiff’s motion for a new trial

because there was no indication that the jury did not perform a reasoned analysis in

reaching its verdict. Defendants further argue that none of the limited grounds for

granting a new trial exists here. We agree.

      We reverse the denial of a motion for a new trial in four “strictly limited”

situations: “(1) the trial court believes it lacks the power to grant a new trial,” “(2)

it concludes that it may not weigh the evidence,” “(3) it weighs the evidence



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explicitly against the wrong standard, i.e., substantial evidence or preponderance of

the evidence,” or “(4) it concludes the verdict is against the clear weight of the

evidence but refuses to grant a new trial.” Landes Const. Co., 833 F.2d at 1372.

Although Plaintiff only argues that the verdict is against the clear weight of the

evidence, none of the four strictly limited situation applies here. The district court

did not conclude that it lacked the power to grant a new trial or that it could not

weigh the evidence. The district court applied the correct legal standard.

      Here, the jury was given the same jury instruction for both Mrs. Holzhauer

and the adult children: “No fixed standard exists for deciding the amount of

noneconomic damages. You must use your judgment to decide a reasonable

amount based on the evidence and your common sense.” But the jury awarded

noneconomic damages in the amount of one million dollars to Mrs. Holzhauer and

none to her sons. The district court was “not convinced that the jury’s finding was

‘contrary to the clear weight of the evidence.’” The district court reasoned that

“evaluating intangibles” is “peculiarly within a jury’s ken.” The parties agreed that

the jury instructions were correct and that the jury clearly understood those

instructions, as evidenced by a verdict of one million dollars to Mrs. Holzhauer.

The district court concluded, “there is no indication the jury failed to perform a

reasoned analysis.”




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      The district court sensibly left the decision-making on a matter most suitable

for a jury, to the jury. Doubts about the verdict alone are insufficient grounds to

grant a new trial. Landes Const. Co., Inc., 833 F.2d at 1372. The jury’s award in

favor of Mrs. Holzhauer individually is not necessarily at odds with the jury’s

decision not to award damages to her adult children. The jury instruction for

noneconomic damages specified that the adult children and Mrs. Holzhauer

claimed noneconomic damages for loss of “love, companionship, comfort, care,

assistance, protection, affection, society, and moral support,” “loss of [Mr.]

Holzhauer’s training and guidance,” and as to Mrs. Holzhauer “loss of the

enjoyment of sexual relations.” The jury could have reasoned that Mrs. Holzhauer

suffered a loss by losing her spouse’s love, companionship, care, assistance,

affection, and “loss of the enjoyment of sexual relations,” but also that Mr.

Holzhauer’s adult children who have their own families did not suffer a

compensable loss of companionship, care, assistance, training, and guidance

sufficient to warrant non-economic damages. There is no evidence that the jury

verdict was against the clear weight of the evidence, and the district court did not

abuse its discretion by so concluding.

      AFFIRMED.




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