NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 6 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARTHA BERNDT, No. 16-16079
Plaintiff-Appellant, D.C. No. 1:03-cv-03174-NJV
v.
MEMORANDUM*
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Nandor J. Vadas, Magistrate Judge, Presiding
Argued and Submitted October 19, 2017
San Francisco, California
Before: IKUTA and HURWITZ, Circuit Judges, and GWIN,** District Judge.
Martha Berndt appeals from the district court’s denial of her motion for a new
trial after a defense verdict in this sexual harassment suit.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
We affirm the defense judgment, but reverse the costs award.
1. Berndt argues that the district court erred on certain evidentiary rulings.
We can only reverse if (1) the district court abused its discretion and (2) the error
was prejudicial. McEuin v. Crown Equip. Corp., 328 F.3d 1028, 1032 (9th Cir.
2003). “A reviewing court should find prejudice only if it concludes that, more
probably than not, the lower court’s error tainted the verdict.” Tennison v. Circus
Circus Enters., Inc., 244 F.3d 684, 688 (9th Cir. 2001).
a. In limiting the admission of evidence about similar incidents of
indecent exposure by inmates witnessed by other prison employees, the district court
performed the required balancing under Federal Rule of Evidence 403, allowing
Berndt to offer only five rule violation reports. We review the district court’s Rule
403 balancing with considerable deference, see United States v. Hankey, 203 F.3d
1160, 1167 (9th Cir. 2000), and do not find an abuse of discretion. Moreover, we
find no prejudice from the district court’s ruling, as the court admitted a state report
that summarized all indecent exposures and Berndt used summary charts detailing
all the 115 Forms.
b. Berndt also argues that the district court erred when it denied her
request to take judicial notice of rulings in Freitag v. Ayers, 468 F.3d 528 (9th Cir.
2006). The district court properly denied the request, which involved factual and
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legal conclusions from another trial. See Lee v. City of Los Angeles, 250 F.3d 668,
690 (9th Cir. 2001).
c. Berndt also challenges the district court allowing certain expert
testimony on whether the masturbatory exhibitionism was pervasive in the Pelican
Bay prison. Even assuming error, it was not prejudicial. Berndt asked her own
prison practices expert whether the exhibitionism was pervasive. And other
admitted evidence made the same point – that other inmate discipline problems
occurred much more frequently.
d. Finally, Berndt complains that the district court excluded evidence
concerning exhibitionist incidents before May 24, 1997. However, Berndt herself
volunteered the May 24, 1997 time period limitation and thus waived her right to
complain about it. See United States v. Myers, 804 F.3d 1246, 1254 (9th Cir. 2015),
cert. denied, 136 S. Ct. 1393 (2016). Nor did she move to amend the pretrial order
in the six-month period between the final pretrial conference and the beginning of
trial.
2. Berndt argues that the district court should have granted a new trial
because the jury’s verdict was against the clear weight of the evidence. We review
to determine “if there was some ‘reasonable basis’ for the jury’s verdict,” Molski v.
M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) (citations omitted), and will only
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reverse “where there is an absolute absence of evidence to support the jury’s
verdict,” Kode v. Carlson, 596 F.3d 608, 612 (9th Cir. 2010) (citation omitted).
The jury’s finding that the claimed hostile work environment resulting from
inmate exhibitionism was not “sufficiently severe or pervasive to alter the conditions
of . . . employment and create an abusive working environment” was supported by
the evidence. Freitag, 468 F.3d at 539 (alteration in original) (citation omitted).
Berndt reported four masturbatory exposure incidents over eight years. Amidst large
numbers of inmate assaults, inmate exhibitionism constituted a small portion of
overall inmate misconduct at CDCR.
3. Berndt waived any argument about the jury’s verdict regarding
Sergeant David Skerik because she did not present this argument before the district
court in her motion for a new trial. See Unitherm Food Sys., Inc. v. Swift-Eckrich,
Inc., 546 U.S. 394, 402 (2006); Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
4. The district court did not abuse its discretion in granting Appellees the
costs for daily transcripts that were necessary for appeal. See N.D. Cal. Civ. R. 54-
3(b)(1). The district court also did not abuse its discretion in awarding costs for
converting and copying a recorded deposition into a mini DV CD. See N.D. Cal.
Civ. R. 54-3(c)(1) (permitting “[t]he cost of an original and one copy of any
deposition (including videotaped depositions) taken for any purpose in connection
with the case”). But, the district court erred in awarding deposition synchronization
4 16-16079
costs to Appellees. See Kalitta Air L.L.C. v. Cent. Tex. Airborne Sys. Inc., 741 F.3d
955, 959 (9th Cir. 2013), and we remand with instructions to reduce the costs award
accordingly.1
AFFIRMED IN PART and REVERSED IN PART.
1
Berndt had no basis for appealing the costs for the audio interview transcripts
for Officer Judy Longo or the expedited transcript for Teresa Reagle. The district
court disallowed those costs.
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