NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 9 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL LEWIS; et al., No. 17-56346
Plaintiffs-Appellants, D.C. No.
3:13-cv-02818-H-JMA
v.
COUNTY OF SAN DIEGO; et al., MEMORANDUM*
Defendants-Appellees.
MICHAEL LEWIS; et al., No. 17-56421
Plaintiffs-Appellees, D.C. No.
3:13-cv-02818-H-JMA
v.
COUNTY OF SAN DIEGO; et al.,
Defendants-Appellants.
MICHAEL LEWIS; et al., No. 18-55148
Plaintiffs-Appellees, D.C. No.
3:13-cv-02818-H-JMA
v.
COUNTY OF SAN DIEGO,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Defendant-Appellant.
LAUREN TAYLOR; et al., No. 18-55306
Plaintiffs-Appellants, D.C. No.
3:13-cv-02818-H-JMA
v.
COUNTY OF SAN DIEGO,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Argued and Submitted October 17, 2019
Pasadena, California
Before: WARDLAW and HURWITZ, Circuit Judges, and BATAILLON,**
District Judge.
These cross-appeals arise from the district court’s entry of an amended
judgment and award of $499,509.00 in attorneys’ fees against San Diego County
for its warrantless removal of two children from their home. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
The jury returned a verdict finding that only the supervising social worker,
**
The Honorable Joseph F. Bataillon, United States District Judge for
the District of Nebraska, sitting by designation.
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Benita Jemison,1 acted intentionally and unreasonably in instructing the social
workers at the scene, Ian Baxter and Nancy Quinteros, to remove the children. But
the jury also found that Jemison did not cause Fourth Amendment injury to the
children and was not deliberately indifferent to the parents’ Fourteenth
Amendment rights. Despite finding no underlying constitutional violation, the jury
found the County liable for failing to adequately train its social workers.
Although the district court found the jury’s verdicts inconsistent, the parties
agreed that it was unnecessary to call the jury back to deliberate further. Instead,
they asked the court to resolve the inconsistency through post-trial motions. In an
order denying the parties’ post-trial motions, the district court amended the verdict
to find that Jemison caused the children’s Fourth Amendment injury as a matter of
law and upheld the verdict against the County. See Monell v. Dep’t of Soc. Servs.
of New York, 436 U.S. 658, 691 (1978).
1. Judgment as a matter of law may be granted where “the evidence permits
only one reasonable conclusion, and that conclusion is contrary to the jury’s
verdict.” Wallace v. City of San Diego, 479 F.3d 616, 624 (9th Cir. 2004).
Because Baxter and Quinteros would not have removed the children unless
1
To avoid confusion, we refer to Plaintiffs-Appellants-Cross-Appellees
Michael Lewis, Linda Taylor, C.L., and B.L. collectively as “Plaintiffs” and
Defendants-Appellees-Cross-Appellants Ian Baxter, Nancy Quinteros, Benita
Jemison, and the County of San Diego collectively as “Defendants” throughout
this disposition.
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Jemison ordered them to do so, the only reasonable conclusion permitted by the
evidence is that Jemison caused a violation of the children’s Fourth Amendment
rights. Accordingly, the district court did not abuse its discretion in denying the
County’s motion to set aside the Monell verdict. See Transgo, Inc. v. Ajac
Transmission Parts Corp., 768 F.2d 1001, 1014 (9th Cir. 1985) (standard of
review).
2. We lack jurisdiction over the denial of the County’s untimely motion
challenging the Monell verdict as a matter of law. The County filed a timely
“bare-bones motion” but stated no grounds for the motion in violation of Federal
Rule of Civil Procedure 7(b)(1). The County’s supplemental brief—filed after the
28-day deadline—cannot cure its failure to state any ground for the initial motion.
Fed. R. Civ. P. 6(b)(2); cf. Roy v. Volkswagenwerk Aktiengesellschaft, 781 F.2d
670, 670 (9th Cir. 1985) (per curiam) (holding that, where a party specifies a
ground for a timely motion, a supplemental document filed outside the deadline
can furnish the necessary particularity). Notwithstanding the County’s untimely
motion, we find no error in the trial court’s ruling on the County’s liability. There
is sufficient evidence in the record to support the jury’s finding.
3. The district court did not err in finding that Jemison is entitled to
qualified immunity. No clearly established law provides fair notice that removing
children from a home in circumstances like those here violates the Fourth
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Amendment. S.B. v. Cty. of San Diego, 864 F.3d 1010, 1015–16 (9th Cir. 2017);
Kirkpatrick v. Cty. of Washoe, 843 F.3d 784, 793 (9th Cir. 2016) (en banc).
4. Nor did the district court abuse its discretion in denying Plaintiffs’
motion for a new trial on damages. Transgo, Inc., 768 F.2d at 1014 (standard of
review); Pearson v. Callahan, 555 U.S. 223, 231 (2009) (stating qualified
immunity protects officials from liability for civil damages).
5. Plaintiffs are not entitled to a new trial based on alleged errors in certain
evidentiary rulings and jury instructions. The district court did not commit
reversible error by: (i) not giving a procedural due process instruction, Gantt v.
City of Los Angeles, 717 F.3d 702, 707 (9th Cir. 2013); (ii) rejecting Plaintiffs’
proposed integral participation instruction, Jones v. Williams, 297 F.3d 930, 939
(9th Cir. 2002); (iii) admitting expert testimony on the dangers of concentrated
marijuana and marijuana labs, Fed. R. Evid. 103(a), 702(a); (iv) admitting social
workers’ lay testimony on exigent circumstances, Flores v. City of Westminster,
873 F.3d 739, 754 (9th Cir. 2017); (v) refusing to withdraw Michael Lewis’s
admissions, Conlon v. United States, 474 F.3d 616, 624 (9th Cir. 2007); and (vi)
excluding the grand jury report, Fed. R. Evid. 403.
6. We lack jurisdiction to review the district court’s denial of summary
judgment. Ortiz v. Jordan, 562 U.S. 180, 183–84 (2011); Dixon v. Wallowa Cty.,
336 F.3d 1013, 1017 (9th Cir. 2003).
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7. The district court did not abuse its discretion by awarding attorneys’ fees.
To award attorneys’ fees after a judgment for only nominal damages, the district
court must point to some additional way in which the litigation succeeded.
Mahach-Watkins v. Depee, 593 F.3d 1054, 1059 (9th Cir. 2010). The court must
weigh three factors in making this determination: (1) the difference between the
amount recovered and the damages sought; (2) the significance of the legal issue
on which the Plaintiff prevailed; and (3) whether the Plaintiff accomplished a
public goal. Id. Here, the district court properly weighed these factors and
reasonably concluded that the litigation would have a deterrent effect against
warrantless removal of children from their home without consideration of the
appropriate factors. See id. at 1062–63.
8. The district court properly declined to further reduce the fee award based
on the results obtained because the court had already considered whether the
“significance of the overall relief obtained” justified the hours expended on the
litigation. See Cunningham v. Cty. of Los Angeles, 879 F.2d 481, 487–88 (9th Cir.
1988).
For the foregoing reasons, the judgment of the district court is AFFIRMED.
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