Angel Martel v. County of Los Angeles Elias Cuevas Harry Delong Richard Mariadiaga Mark Shaughnessy

56 F.3d 993, 95 Cal. Daily Op. Serv. 4051, 31 Fed. R. Serv. 3d 769, 1995 U.S. App. LEXIS 13432, 1995 WL 325259

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 1, 1995
• Docket: 91-56268
• Status: Published

Opinions

Opinion by Judge BEEZER; Concurrence by Judge CANBY; Dissents by Judge KLEINFELD, Judge REINHARDT, and Judge FLETCHER

BEEZER, Circuit Judge:

We consider whether a district court’s denial of a motion for continuance for purposes of conducting discovery is reversible absent an affirmative demonstration of actual and substantial prejudice to the moving party. Angel Martel appealed the pretrial denial of a continuance following an unfavorable jury verdict in his civil rights action against the County of Los Angeles and eight individual law enforcement officers. We have jurisdiction. 28 U.S.C. § 1291 (1988 & Supp. V 1993). Initially, a divided panel reversed the district court, holding that Martel was entitled to a new trial. See Martel v. County of Los Angeles, 34 F.3d 731 (9th Cir.1994). A majority of the active, nonrecused judges of this court voted to rehear the case en banc. Martel v. County of Los Angeles, No. 91-56268, slip op. 14025 [34 F.3d 731, 742] (9th Cir. Nov. 14, 1994); Fed.R.App.P. 35(a); 9th Cir.R. 35-3.

Because we conclude that Martel failed to establish the necessary actual and substantial prejudice from the denial of his motion for a continuance to conduct additional discovery, we affirm the district court.

I

On June 6, 1990, deputies from the Los Angeles County Sheriffs Office arrived at the residence of Angel Martel. They were responding to an emergency telephone call from his wife, Ester Martel. When the deputies arrived, Angel Martel, a paranoid schizophrenic, was in the backyard holding a firearm. The deputies subdued Martel through the use of force. Martel suffered serious injuries during the struggle.¹

Martel filed a civil rights action on April 22, 1991 against the County of Los Angeles and an unspecified number of sheriffs deputies (collectively “County”). See 42 U.S.C. §§ 1983, 1985 (1988 & Supp. V 1993). The complaint was based on various claims of police brutality and the use of excessive force. Initially, the complaint named only the County, the Sheriff, and one deputy.

On May 6, 1991, Martel served interrogatories on the County, which requested, among other things, the names of the deputies who participated in the incident at the Martel residence. The County responded on May 24, 1991, naming seven deputies who were at the scene.

The district court entered an order on May 31, 1991, setting the date of a mandatory status conference for June 24, 1991. At the status conference, the court set the trial date for August 27, 1991, with a pretrial conference to begin one day earlier. Although Martel made several efforts to extend the discovery cut-off date, he did not move during June or July for a continuance of the trial date. Martel did file a first and second amended complaint, which reflected the names of additional sheriffs deputies.²

On August 22, 1991, four days before the pretrial conference was set to begin, Martel filed an ex parte application to continue the trial date. The district court denied Martel’s motion, and the trial proceeded on schedule. Following a three-day trial, the jury returned a verdict in favor of the eight sheriffs deputies. The district court then dismissed Martel’s claims against the County and the Sheriff, who were the only remaining defendants.

Martel appeals. He does not argue that any error was committed during the trial. Rather, he argues that the trial court’s denial of his motion to continue the trial in order to conduct additional discovery was an abuse of discretion. Martel contends that he was prevented from deposing critical witnesses and otherwise adequately preparing for trial. Martel requests a new trial on his civil rights claims.

II

As we have observed, a district court’s decision to deny a continuance sought for the purposes of obtaining discovery will be disturbed only “upon the clearest showing that denial of discovery results in actual and substantial prejudice to the complaining litigant.” Sablan v. Department of Fin., 856 F.2d 1317, 1321 (9th Cir.1988); Butcher’s Union Local No. 498 v. SDC Inv., Inc., 788 F.2d 535, 540 (9th Cir.1986); Data Disc, Inc. v. Systems Technology Assocs., Inc., 557 F.2d 1280, 1285 n. 1 (9th Cir.1977). We limit our opinion to the question of actual and substantial prejudice. We need not, and do not, address whether the district court abused its discretion in denying Martel a continuance to conduct discovery.³ Even if the district court had abused its discretion, such an error is not reversible absent the clearest showing of actual and substantial prejudice.

We have recognized on many occasions the importance of a showing of actual and substantial prejudice in the context of denials of continuances. Sablan, 856 F.2d at 1321; Butcher’s Union, 788 F.2d at 540; United States v. 2.61 Acres of Land, 791 F.2d 666, 671 (9th Cir.1985); United States v. Flynt, 756 F.2d 1352, 1359 (9th Cir.), amended, 764 F.2d 675 (9th Cir.1985); United States v. Mitchell, 744 F.2d 701, 704-05 (9th Cir.1984); United States v. Maybusher, 735 F.2d 366, 369 (9th Cir.1984), cert. denied, 469 U.S. 1110, 105 S.Ct. 790, 83 L.Ed.2d 783 (1985). As these decisions indicate, a showing of prejudice is necessary to obtain reversals of decisions on continuance motions in both civil and criminal contexts. Prejudice is measured in terms of the outcome of the trial; in other words, is there a reasonable probability that the outcome would have been different had the continuance been allowed.

We reaffirm these holdings today. The law of this circuit is that “actual and substantial prejudice to the complaining litigant” is required to disturb a district court’s decision to deny or grant a continuance to conduct discovery. Sablan, 856 F.2d at 1321. The complaining party bears the burden to make the “clearest showing” of actual and substantial prejudice. Id.

Having established the standard we will employ to review the district court’s denial of a continuance to conduct discovery, we now apply that standard to the facts before us. Martel argues that he was unable to depose the sheriffs deputies who subdued him. He contends that the lack of discovery was detrimental to the preparation of his case. Indeed, Martel argues that the lack of opportunity to “complete essential discovery” caused prejudice. We disagree.

Martel’s failure to demonstrate actual and substantial prejudice is total. He provided no transcript, not even an abbreviated one, of the events that transpired at trial. Absent the complete record, or at least the relevant portions, it is difficult to even begin to gauge what prejudice arose from the trial court’s denial of a continuance. We can only guess at the issues in dispute at trial, the direct testimony of the sheriffs deputies and the extent of cross-examination of the deputies. Perhaps more discovery would have revealed lines of attack on the deputies’ credibility or inconsistencies in their recollection, but we are speculating idly. To quote Judge Norris’ dissenting opinion to the panel decision:

[Martel] cannot carry that burden [of showing actual and substantial prejudice] without telling us at least something about what happened at trial. Unfortunately for him, he chooses to tell us nothing about the trial evidence, nor the specific issues of fact in dispute, nor has he given any reason to believe that additional discovery might have changed the outcome of the trial. By failing to tell us anything about the trial, or to provide us with a trial transcript or even portions thereof, Martel fails to carry his burden of showing even a reasonable possibility that additional discovery would have changed the result of the trial. We know nothing about the kind of case Martel actually put on at trial because he has told us nothing.

Martel, 34 F.3d at 740.

Even assuming Martel had submitted a full or partial transcript, he still does not tell us what facts he would have gained from the deputies that would have advanced his cause at trial. Although we recognize the potential importance of deposing the deputies, Martel does not elaborate on how additional discovery would support whatever arguments he advanced at trial. We are unwilling to engage in ruminative speculation on this subject. Indeed, our precedents will not permit it. Sabían requires “actual and substantial” prejudice. Martel fails to meet this standard.

Our decision in United States v. Lane, 765 F.2d 1376 (9th Cir.1985) is in accord with this application. In Lane, we held that an appellant faded to show actual prejudice when he did not specify which witnesses he would have interviewed, which documents he wanted to examine or which defenses he would have explored. We did not say, however, that merely designating a witness, document, or defense that a party proposes to investigate through discovery demonstrates prejudice. Lane provides an example of what is an insufficient showing, but does not establish what constitutes a sufficient showing.

More closely on point is our decision in Butcher’s Union, 788 F.2d at 540-41. In that case, the complaining party speculated that discovery would enable it to demonstrate sufficient business contacts to establish personal jurisdiction over a defendant. Id. at 540. We determined that this speculation was not sufficient to make the “clearest showing” of actual and substantial prejudice. Id. Here, Martel failed to meet even this insufficient level of speculation. Martel did not speculate as to what he would have discovered, nor did he explain how that discovery would have altered the result at trial.

Martel’s argument that the “adverse verdict alone is proof’ that the denial of a continuance was “indisputably prejudicial” demonstrates a fundamental misperception of the law. If the fact that a party lost at trial was indisputable proof that adverse pretrial rulings were prejudicial, we would be reversing jury verdicts at an uncomfortably high rate. Indeed, as Judge Norris aptly noted in his dissent to the original panel’s opinion, Martel’s argument is “preposterous” because, if it were true, “every trial court error would per se be prejudicial to the losing party.” Martel, 34 F.3d at 741.

We also reject the argument that because the discovery denied to Martel was arguably meaningful, the denial was either inherently prejudicial, or that a lesser quantum of prejudice need be demonstrated. As Judge Norris correctly observed, “[i]t is not unduly burdensome to require a party seeking reversal for a denial of discovery to tell us at least something about the disputed issues of fact and the trial evidence relevant thereto to help us make a judgment on the likelihood that additional discovery would have affected the outcome of the trial.” Martel, 34 F.3d at 741. That requirement is no less important merely because a witness is deemed significant to a party’s case at trial. Of course, if the complaining party is denied significant discovery or is unduly restricted in discovery matters by the district court or the opposing party,⁴ actual and substantial prejudice from the denial of a motion for a continuance might be easier to demonstrate, but that does not relieve the complaining party from the obligation of demonstrating it.

This case does not present us with the opportunity to detail exactly what level of prejudice qualifies as “actual and substantial.” We need go no further than to hold that Martel failed to meet the required showing of actual and substantial prejudice because he made no effort to indicate what, if any, facts would have been gained from additional discovery and why, if at all, these facts would have affected the result of the trial.

To conclude, we hold that Martel has failed to establish actual and substantial prejudice to his cause which occurred on account of the district court’s denial of his motion for a continuance to conduct discovery. Martel’s failure to tell us with any clarity what facts he would have discovered, specifically from deposing the sheriffs deputies, and his failure to provide us with the record of what transpired at trial fall short of the level needed to convince us that the result at trial might have been different had the continuance been granted. We will not disturb the district court’s decision.⁵

III

The original panel opinion in this case addressed an issue not raised by either party, specifically, whether the district court violated provisions of the Local Rules of the Central District of California. We decline to address this issue, as it was not raised either before the district court or in the parties’ briefs before this court. EEOC v. Farmer Bros. Co., 31 F.3d 891, 901 (9th Cir.1994) (we will not address issues on appeal that are not properly raised before the district court); Abela v. Gustafson, 888 F.2d 1258, 1266-67 (9th Cir.1989) (same).

Part II.B. of the panel opinion, 34 F.3d at 736-37, is withdrawn and does not constitute the law of this circuit.

IV

In its brief, the County requested attorney’s fees and sanctions on the ground that Martel’s appeal was frivolous. See Fed. R.App.P. 38. The County also requested attorney’s fees as a prevailing party. See 42 U.S.C. § 1988. At oral argument before the en banc court, the County waived its requests for fees and sanctions. We accept that waiver.

AFFIRMED.

1 . Our recitation of the facts is limited because of the sparse record on appeal. Because we are not in possession of any record from the trial, we obtained a brief set of facts from Martel's complaint and documents in the Clerk's Record. The “Defendant’s Trial Brief” in the Clerk’s Record does indicate that most of the events that occurred at the Martel residence were not disputed, but rather it was the necessity and propriety of the force used that was the primary issue at trial. Nevertheless, we do not know what transpired, or what evidence was produced, at trial. As we note later, the lack of a proper record is a problem throughout this entire appeal.

2 . In his initial complaint, Martel named only one deputy, Cuevas. In the first amended complaint, filed July 23, 1991, Martel named six more deputies, DeLong, Mariadiaga, Shaughnessy, How-land, Lammers and Yanes. In the second amended complaint, filed August 12, 1991, Martel named one final deputy, Robles.

3 . The determination whether a denial of a continuance constitutes an abuse of discretion depends on a consideration of the facts of each case. United States v. Flynt, 756 F.2d 1352, 1359 (9th Cir.), amended, 764 F.2d 675 (9th Cir.1985). We leave for another day, and another set of facts, the question whether the denial of a continuance in a similar context would constitute an abuse of discretion.

4 . If the complaining party believes that the opposing party is being intransigent on discovery issues, the complaining party has the option of moving pursuant to Fed.R.Civ.P. 37 to compel discovery or to obtain sanctions.

5 . Because we reject Martel’s argument, we need not address the County’s contention that Martel violated Fed.R.App.P. 10(b)(2), which requires an appellant to include in the record a transcript of all evidence relevant to any finding or conclusion that he or she believes is unsupported by the evidence.