                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           NOV 19 2018
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


HUMBERTO AMEZCUA and OCTAVIO                     No.   17-15882
RENE VAZQUEZ CORNEJO,
                                                 D.C. No.
              Plaintiffs-Appellants,             2:13-cv-01608-APG-CWH

 v.
                                                 MEMORANDUM*
GERARD BOON; et al.,

              Defendants-Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                    Andrew P. Gordon, District Judge, Presiding

                    Argued and Submitted November 14, 2018
                            San Francisco, California

Before: THOMAS, Chief Judge, M. SMITH, Circuit Judge, and BUCKLO,**
District Judge.




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


      **
            The Honorable Elaine E. Bucklo, United States District Judge for the
Northern District of Illinois, sitting by designation.
      Humberto Amezcua and Octavio Rene Vazquez Cornejo (“Plaintiffs”)

appeal the district court’s denial of their motion for a new trial on a negligence

claim against Gerard Boon and Lou Ann Boon (“Defendants”) arising from a 2011

motor vehicle accident in which Defendants, driving a semi-truck, rear-ended

Plaintiffs’ vehicle. Plaintiffs argue the district court committed numerous errors

that warrant a new trial. We have jurisdiction under 28 U.S.C. §1291. We review

for abuse of discretion a district court’s denial of a Rule 59 motion for a new trial.

Lam v. City of San Jose, 869 F.3d 1077, 1084 (9th Cir. 2017) (quoting Molski v.

M.J. Cable, Inc., 481 F.3d 724, 728 (9th Cir. 2007)). We affirm. Because the

parties are familiar with the history of this case, we need not recount it here.

      1.   The district court did not force Plaintiffs to withdraw their damages

claim for medical expenses. Plaintiffs voluntarily and strategically withdrew these

claims during the hearing on Defendants’ motion to strike when it appeared the

court was leaning in favor of granting Defendants’ motion.

      2.    Plaintiffs’ witness disclosures did not meet the requirements of Federal

Rule of Civil Procedure 26(a)(2)(C)(ii). Although the section requires “a summary

of the facts and opinions to which the witness is expected to testify,” Plaintiffs

provided only a general overview of the topics upon which each of their four non-

retained expert witnesses would testify. Id.


                                           2
      3.    The district court properly granted summary judgment on the negligent

entrustment claim because there is no evidence that corporate defendants had

actual knowledge that either Defendant had previously falsified the logs, or that

corporate defendants should have known of their practice of falsifying the logs.

See Mills v. Cont’l Parking Corp., 475 P.2d 673, 674 (Nev. 1970) (negligent

entrustment standard requires a defendant knew or should have known that

entrustment created an unreasonable risk of harm to others).

      4.    The court’s question during voir dire regarding whether any of the

jurors had “witnessed a car accident that [they] believed was staged” was not

improper. It was not inflammatory, was asked only once, and was about an issue

likely to and which, indeed, did arise during trial. Further, no authority provides

that the court’s failure to mention Defendants’ burden of proof during voir dire was

an error.

      5.    The district court had the discretion to conduct the voir dire itself since

“[t]he court may permit the parties or their attorneys to examine prospective jurors

or may itself do so.” Fed. R. Civ. P. 47(a). The court also properly conducted the

voir dire because it did not refuse any questions proposed by Plaintiffs and allowed

Plaintiffs’ counsel to ask follow-up questions to prospective jurors. See id. (“If the

court examines the jurors, it must permit the parties or their attorneys to make any


                                           3
further inquiry it considers proper, or must itself ask any of their additional

questions it considers proper.”).

      6.    The district court was within its power when it decided not to strike two

jurors for cause. “Because determinations of impartiality may be based in large

part upon demeanor, this court typically accords deference to the district court’s

determinations, and reviews a court’s findings regarding actual juror bias ‘for

manifest error’ or abuse of discretion.” See United States v. Gonzalez, 214 F.3d

1109, 1112 (9th Cir. 2000). The first juror made statements regarding his view that

immigrants in America should learn English and that he believed they receive more

public benefits than non-immigrants, but the district court reasonably concluded

that although his comments were concerning, the juror had demonstrated an ability

to remain fair and impartial if chosen for the jury. No authority provides that the

other juror should have been dismissed simply because the juror knew one of the

witnesses who was scheduled to appear.

      7.    The district court did not err in concluding that opposing counsel’s

statements made throughout trial were not prejudicial. Reversal on the grounds of

attorney misconduct is rare, and is granted only when the misconduct permeates an

entire proceeding such that “the jury was necessarily influenced by passion and

prejudice in reaching its verdict.” Cooper v. Firestone Tire & Rubber Co., 945


                                           4
F.2d 1103, 1107 (9th Cir. 1991) ((citing Kehr v. Smith Barney, Harris Upham &

Co., Inc., 736 F.2d 1283, 1286 (9th Cir. 1984)). The district court “[wa]s in a far

better position to gauge the prejudicial effect of improper comments than an

appellate court which reviews only the cold record.” Id. Plaintiffs present no

argument or evidence to convince us otherwise.

      8.    The district court did not abuse its discretion in denying a motion for a

new trial based on an alleged failure to give a negligence per se instruction

purportedly offered by the Plaintiffs. The Plaintiffs cannot identify any portion of

the record in which the district court actually refused to give the instruction. Thus,

the only issue presented is the district court’s denial of a motion for a new trial.

The record is equivocal as to whether a violation of 49 C.F.R. § 395.3 occurred.

Boon testified that he was “90 percent sure” he would have been permitted to drive

that day. He further testified that he was not fatigued on the morning of the

accident and that he had gotten at least eight hours of sleep the night before. Given

the equivocal record, the district court did not abuse its discretion in denying the

motion for a new trial.

      AFFIRMED.




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