                                                                             FILED
                            NOT FOR PUBLICATION                              APR 26 2012

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




                            FOR THE NINTH CIRCUIT



ONITA TUGGLES,                                   No. 10-17181

              Plaintiff - Appellant,             D.C. No. 3:08-cv-01914-JCS

  v.
                                                 MEMORANDUM *
CITY OF ANTIOCH; et al.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Northern District of California
                    Joseph C. Spero, Magistrate Judge, Presiding

                       Argued and Submitted April 20, 2012
                            San Francisco, California

Before: NOONAN and MURGUIA, Circuit Judges, and TIMLIN, Senior District
Judge.**

       Appellant Onita Tuggles appeals the district court’s order granting




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Robert J. Timlin, United States District Judge for the
Central District of California, sitting by designation.
summary judgment to Appellees on Tuggles’s claim that Appellees Schwitters and

Bittner violated the Fair Employment and Housing Act (“FEHA”), Cal. Gov. Code

§ 12955(g), by discriminating against her on the basis of her source of income.

Tuggles argues Section 8 housing assistance constitutes “income” for purposes of

the FEHA. Tuggles also argues that, to the extent her FEHA source-of-income

claim survived summary judgment, the district court abused its discretion by

excluding expert witness testimony and rejecting proposed jury instructions about

source-of-income discrimination.

      The California Court of Appeal has held that Section 8 aid does not qualify

as a source of income. Sabi v. Sterling, 183 Cal. App. 4th 916, 937 (Cal. Ct. App.

2010). In the absence of convincing evidence that the California Supreme Court

would decide differently, we are bound by Sabi’s holding that Section 8 is not a

source of income. Ryman v. Sears, Roebuck & Co., 505 F.3d 993, 995 (9th Cir.

2007). Therefore, we affirm the district court’s grant of summary judgment to

Schwitters on Tuggles’s source-of-income claim.

      Although neither the district court nor the jury ruled on the source-of-

income claim against Bittner, we may do so in the first instance because the claim

may be decided as a matter of law and doing so will not prejudice Appellees.

United States v. Patrin, 575 F.2d 708, 712 (9th Cir. 1978). We hold that Tuggles’s


                                          2
source-of-income claim against Bittner fails as a matter of law. See Sabi, 183 Cal.

App. 4th at 937.

       We affirm the district court’s exclusion of expert witness testimony about

discrimination against Section 8 recipients. Even if we assume that the district

court erred in excluding the expert testimony, the error was not prejudicial because

Tuggles’s source-of-income claim fails as a matter of law. Fireman’s Fund Ins.

Cos. v. Alaskan Pride P’ship, 106 F.3d 1465, 1467 (9th Cir. 1997); Fed. R. Evid.

103(a).

       We also affirm the district court’s rejection of Tuggles’s proposed jury

instructions. Tuggles failed to object to the district court’s rejection of the

instructions. See Fed. R. Civ. P. 51(d)(1)(B) (A party may assign as error “a

failure to give an instruction, if that party properly requested it and—unless the

court rejected the request in a definitive ruling on the record—also properly

objected.” (emphasis added)). Since Tuggles’s source-of-income claim fails as a

matter of law, any error—assuming there was one—did not affect substantial rights

and was not plain error. Fed. R. Civ. P. 51(d)(2) (“A court may consider a plain

error in the instructions that has not been preserved as required by Rule 51(d)(1) if

the error affects substantial rights.”).

       AFFIRMED.


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