                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           AUG 14 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


EDWIN DURAND; et al.,                            No. 13-16280

              Plaintiffs-counter-defendants      D.C. No. 2:09-cv-02038-JAM-CKD
              - Appellants,

  v.                                             MEMORANDUM*

CANDICE L. STEPHENSON; et al.,

              Defendants-counter-claimants
              - Appellees,

  And

STONEHOUSE COURT ASSOCIATES,
LLC, a California limited liability
company,

               Defendant.



                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                            Submitted August 12, 2015**
                              San Francisco, California

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

      Plaintiffs Edwin and Madelaine Durand appeal the district court’s denial of

their motion for a new trial as to damages in their lawsuit against Defendants for

the conversion of their Wabco loader. Plaintiffs also appeal the district court’s

denial of their motion for reconsideration regarding the new trial ruling. Because

the district court did not make a mistake of law and the verdict is not contrary to

the clear weight of the evidence, we affirm.

      The district court did not err by declining to adopt Plaintiffs’ proposed jury

instructions adding a definition of fair market value. The definition proposed by

Plaintiffs had been used to calculate value in eminent domain cases and was not

clearly applicable to conversion cases. Compare Cal. Civ. Code § 3336 with Cal.

Code Civ. P. § 1263.320(a); see Lint v. Chisholm, 121 Cal. App. 3d 615, 624

(1981). The court’s instruction did not misstate California law with respect to

calculating damages for conversion, and the court did not abuse its discretion by

wording the instructions differently from Cal. Civ. Code § 3336.




        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                          2
      We affirm the jury’s award of $6,000 because it is not contrary to the clear

weight of the evidence. The jury could properly rely upon testimony that the

loader had actually been sold for $6,000 at an arms-length transaction. Other

witnesses also testified that Plaintiffs were willing to accept $8,000 for the loader

before it had been converted, and that the loader may properly be valued at $7,000.

The jury also heard testimony that the loader had severely deteriorated and

depreciated over time through its exposure to the elements while sitting unused on

the property for many years. The testimony indicating that the loader may have

been valued at around $6,000-$8,000 by actual buyers and sellers, along with the

testimony as to the loader’s deterioration, sufficiently supports the jury’s damages

award.

      The district court did not abuse its discretion by permitting Mr. Churches to

testify notwithstanding Defendants’ failure to make a proper disclosure under Fed.

R. Civ. P. 26. The district court did not err by concluding that Defendants’ failure

was substantially justified due to Plaintiffs’ disclosure of Mr. Churches in an

interrogatory shortly before discovery closed. The court also did not err by

concluding that Plaintiffs did not suffer prejudice because they had notice of Mr.

Churches’ availability and testimony due to their prior interactions with him. Nor

did the court err by concluding that Mr. Churches’ testimony was relevant because


                                           3
the dozer and loader had been used and stored together and Mr. Churches had

entered negotiations to purchase the loader.

      The district court did not abuse its discretion by permitting the Green Guide

and other documents to be used for impeachment purposes when the Defendants

cross-examined Mr. Fadda. See Gribben v. United Parcel Service, Inc., 528 F.3d

1166, 1171–72 (9th Cir. 2008). These documents were not subject to the pretrial

disclosure requirements under Fed. R. Civ. P. 26. See id.

      AFFIRMED.




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