NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 17 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
NOEL GAUTIER; USA DIRECT No. 24-4028 WHOLESALE INC., D.C. No. 2:20-cv-08091-MCS-PD Plaintiffs-Appellants,
v. MEMORANDUM* LOS ANGELES POLICE DEPARTMENT; CITY OF LOS ANGELES; and ALVARO GARZON,
Defendants- Appellees.
Appeal from the United States District Court for the Central District of California Mark C. Scarsi, District Judge, Presiding
Submitted June 13, 2025** Pasadena, California
Before: CLIFTON, BYBEE, and FORREST, Circuit Judges.
At trial, a jury ruled in favor of Defendants-Appellees and against Plaintiffs-
Appellants, Noel Gautier and USA Direct Wholesale Inc. Plaintiffs appeal multiple
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). decisions of the district court related to that trial. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
1. Plaintiffs argue that the district court erred by not granting their motions
for judgment as a matter of law (JMOL) and for a new trial. Plaintiffs argue that the
district court failed to decide as a matter of law, and instead submitted to the jury,
whether certain omissions in the probable cause affidavits were material. We review
the denial of a JMOL motion de novo, and the denial of a motion for a new trial for
abuse of discretion. Janes v. Wal-Mart Stores, Inc., 279 F.3d 883, 886 (9th Cir.
2002).
Plaintiffs are correct that materiality is an issue of law for the district court to
decide. See Butler v. Elle, 281 F.3d 1014, 1024 (9th Cir. 2002) (citing Hervey v.
Estes, 65 F.3d 784, 789 (9th Cir. 1995)). But they misunderstand the record: The
district court ruled that four alleged misrepresentations or omissions were material
if the jury found that those statements or omissions occurred. And the jury
instructions reflected that ruling. Thus, the district court did decide materiality.
Plaintiffs argue that the district court found in ruling on Defendants’ motion
for summary judgment that the officer made material misrepresentations such that
that question should not have been presented to the jury. However, the standard on
summary judgment is different from a jury trial in that all facts must be construed in
the light most favorable to the non-moving party, Isbell v. City of San Diego, 258
2 F.3d 1108, 1112 (9th Cir. 2001), and the district court only denied Defendants’
motion, it did not grant summary judgment to Plaintiffs. In addition, contrary to
Plaintiffs’ arguments, the district court at summary judgment expressly reserved the
mens rea issue for the jury.
Plaintiffs also suggest that the jury’s verdict on their judicial deception claim
was not supported by sufficient evidence. “A jury’s [civil] verdict must be upheld if
it supported by substantial evidence. Substantial evidence is evidence adequate to
support the jury’s conclusion, even if it is also possible to draw a contrary conclusion
from the same evidence.” SEC v. Todd, 642 F.3d 1207, 1215 (9th Cir. 2011)
(citations and quotation marks omitted). Here, the officer’s testimony about his
investigation and state of mind was adequate to support the verdict.
2. Plaintiffs allege that the district court erred by failing to provide a
“corrective” instruction after Defendants’ counsel made an inaccurate statement of
law during closing arguments. “The trial judge has broad discretion in controlling
closing argument, and improprieties in counsel’s arguments to the jury do not
constitute reversible error unless they are so gross as probably to prejudice the
defendant, and the prejudice has not been neutralized by the trial judge.” United
States v. Tucker, 641 F.3d 1110, 1120–21 (9th Cir. 2011) (citation omitted). Plaintiffs
claim that Defendants’ counsel inaccurately told the jury that they must find “intent
to deceive,” but counsel also correctly referenced “reckless disregard for the truth,”
3 and either state of mind could establish liability. In any event, the district judge
informed the jury that closing arguments were not statements of the law, and the jury
instructions reaffirmed that and correctly advised the jury on the judicial deception
claim. See id. (allowing prejudice to be “neutralized by the trial judge”).
3. Plaintiffs maintain that the district court erred by declining to provide
the jury their proposed instruction 19, which offered the definitions of hemp and
cannabis from the California Food and Agriculture Code. We review the formulation
of civil jury instructions for abuse of discretion, but we review de novo whether an
instruction correctly states the law. Wilkerson v. Wheeler, 772 F.3d 834, 838 (9th
Cir. 2014).
Plaintiffs claimed the officer engaged in judicial deception when he
investigated them, which he did under the Health and Safety Code[,] not the food
and Agriculture Code. The jury instructions articulated the definitions of hemp and
cannabis based on the relevant criminal laws under which Plaintiffs were
investigated. The district court did not abuse its discretion by concluding that
Plaintiffs’ proposed instruction would have only confused and misled the jury. Even
if the district court erred, any error was not prejudicial because “looking to the
instructions as a whole, the substance of the applicable law was . . . fairly and
correctly covered.” Wilkerson, 772 F.3d at 838 (quoting Gantt v. City of Los Angeles,
717 F.3d 702, 707 (9th Cir. 2013)).
4 4. Plaintiffs assert that the district court abused its discretion in declining
supplemental jurisdiction over their conversion action under 28 U.S.C. § 1367(c)(1).
We review declinations of supplemental jurisdiction for abuse of discretion. San
Pedro Hotel Co. v. City of Los Angeles, 159 F.3d 470, 478 (9th Cir. 1998) (citation
omitted).
The district court declined jurisdiction because the conversion claim presented
a novel or complex issue of California law. Namely, it was unclear what entity—the
state criminal court, the City of Los Angeles, or the LAPD—was the custodian of
the allegedly converted property. Because the district court found that question to
be complex and inadequately briefed, it did not abuse its discretion in dismissing the
action without prejudice for filing in state court. See 28 U.S.C. § 1367(c)(1).
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 17 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
NOEL GAUTIER; USA DIRECT No. 24-4028 WHOLESALE INC., D.C. No. 2:20-cv-08091-MCS-PD Plaintiffs-Appellants,
v. MEMORANDUM* LOS ANGELES POLICE DEPARTMENT; CITY OF LOS ANGELES; and ALVARO GARZON,
Defendants- Appellees.
Appeal from the United States District Court for the Central District of California Mark C. Scarsi, District Judge, Presiding
Submitted June 13, 2025** Pasadena, California
Before: CLIFTON, BYBEE, and FORREST, Circuit Judges.
At trial, a jury ruled in favor of Defendants-Appellees and against Plaintiffs-
Appellants, Noel Gautier and USA Direct Wholesale Inc. Plaintiffs appeal multiple
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). decisions of the district court related to that trial. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
1. Plaintiffs argue that the district court erred by not granting their motions
for judgment as a matter of law (JMOL) and for a new trial. Plaintiffs argue that the
district court failed to decide as a matter of law, and instead submitted to the jury,
whether certain omissions in the probable cause affidavits were material. We review
the denial of a JMOL motion de novo, and the denial of a motion for a new trial for
abuse of discretion. Janes v. Wal-Mart Stores, Inc., 279 F.3d 883, 886 (9th Cir.
2002).
Plaintiffs are correct that materiality is an issue of law for the district court to
decide. See Butler v. Elle, 281 F.3d 1014, 1024 (9th Cir. 2002) (citing Hervey v.
Estes, 65 F.3d 784, 789 (9th Cir. 1995)). But they misunderstand the record: The
district court ruled that four alleged misrepresentations or omissions were material
if the jury found that those statements or omissions occurred. And the jury
instructions reflected that ruling. Thus, the district court did decide materiality.
Plaintiffs argue that the district court found in ruling on Defendants’ motion
for summary judgment that the officer made material misrepresentations such that
that question should not have been presented to the jury. However, the standard on
summary judgment is different from a jury trial in that all facts must be construed in
the light most favorable to the non-moving party, Isbell v. City of San Diego, 258
2 F.3d 1108, 1112 (9th Cir. 2001), and the district court only denied Defendants’
motion, it did not grant summary judgment to Plaintiffs. In addition, contrary to
Plaintiffs’ arguments, the district court at summary judgment expressly reserved the
mens rea issue for the jury.
Plaintiffs also suggest that the jury’s verdict on their judicial deception claim
was not supported by sufficient evidence. “A jury’s [civil] verdict must be upheld if
it supported by substantial evidence. Substantial evidence is evidence adequate to
support the jury’s conclusion, even if it is also possible to draw a contrary conclusion
from the same evidence.” SEC v. Todd, 642 F.3d 1207, 1215 (9th Cir. 2011)
(citations and quotation marks omitted). Here, the officer’s testimony about his
investigation and state of mind was adequate to support the verdict.
2. Plaintiffs allege that the district court erred by failing to provide a
“corrective” instruction after Defendants’ counsel made an inaccurate statement of
law during closing arguments. “The trial judge has broad discretion in controlling
closing argument, and improprieties in counsel’s arguments to the jury do not
constitute reversible error unless they are so gross as probably to prejudice the
defendant, and the prejudice has not been neutralized by the trial judge.” United
States v. Tucker, 641 F.3d 1110, 1120–21 (9th Cir. 2011) (citation omitted). Plaintiffs
claim that Defendants’ counsel inaccurately told the jury that they must find “intent
to deceive,” but counsel also correctly referenced “reckless disregard for the truth,”
3 and either state of mind could establish liability. In any event, the district judge
informed the jury that closing arguments were not statements of the law, and the jury
instructions reaffirmed that and correctly advised the jury on the judicial deception
claim. See id. (allowing prejudice to be “neutralized by the trial judge”).
3. Plaintiffs maintain that the district court erred by declining to provide
the jury their proposed instruction 19, which offered the definitions of hemp and
cannabis from the California Food and Agriculture Code. We review the formulation
of civil jury instructions for abuse of discretion, but we review de novo whether an
instruction correctly states the law. Wilkerson v. Wheeler, 772 F.3d 834, 838 (9th
Cir. 2014).
Plaintiffs claimed the officer engaged in judicial deception when he
investigated them, which he did under the Health and Safety Code[,] not the food
and Agriculture Code. The jury instructions articulated the definitions of hemp and
cannabis based on the relevant criminal laws under which Plaintiffs were
investigated. The district court did not abuse its discretion by concluding that
Plaintiffs’ proposed instruction would have only confused and misled the jury. Even
if the district court erred, any error was not prejudicial because “looking to the
instructions as a whole, the substance of the applicable law was . . . fairly and
correctly covered.” Wilkerson, 772 F.3d at 838 (quoting Gantt v. City of Los Angeles,
717 F.3d 702, 707 (9th Cir. 2013)).
4 4. Plaintiffs assert that the district court abused its discretion in declining
supplemental jurisdiction over their conversion action under 28 U.S.C. § 1367(c)(1).
We review declinations of supplemental jurisdiction for abuse of discretion. San
Pedro Hotel Co. v. City of Los Angeles, 159 F.3d 470, 478 (9th Cir. 1998) (citation
omitted).
The district court declined jurisdiction because the conversion claim presented
a novel or complex issue of California law. Namely, it was unclear what entity—the
state criminal court, the City of Los Angeles, or the LAPD—was the custodian of
the allegedly converted property. Because the district court found that question to
be complex and inadequately briefed, it did not abuse its discretion in dismissing the
action without prejudice for filing in state court. See 28 U.S.C. § 1367(c)(1).
5. Plaintiffs maintain that the district court erred by finding that they
forfeited their right to renew their JMOL motion on their state negligence claim. The
district court, quoting Plaintiffs’ pre-verdict JMOL motion, found that Plaintiffs only
moved for JMOL on their judicial deception claim.
The record supports the district court’s finding of forfeiture. After jury
deliberations began, Plaintiffs’ counsel said, “[W]e’re going to throw in a quick Rule
50 motion based on the judicial deception claim, just so that we would be able to
renew it after the verdict.” Plaintiffs’ counsel said nothing of this negligence claim.
On appeal, relying on Reeves v. Teuscher, 881 F.2d 1495 (9th Cir. 1989), Plaintiffs
5 suggest that their opposition to Defendants’ JMOL motion on the negligence claim
preserved this issue. Reeves established no such rule. And unlike Reeves, there is
nothing in the record demonstrating that Plaintiffs were prevented from raising a pre-
verdict JMOL motion on their negligence claim. Id. at 1498. Plaintiffs simply failed
to do so.
6. Plaintiffs contend that the district court erred in denying their request
that their experts’ deposition transcripts be admitted into evidence without live
testimony. Plaintiffs argue that their experts were over 100 miles away, were
expensive, and at least one was unavailable due to a scheduling conflict. We review
the district court’s evidentiary decision for abuse of discretion. United States v. Tran,
568 F.3d 1156, 1162 (9th Cir. 2009).
Plaintiffs did not mark their experts’ deposition testimony for inclusion at trial
prior to the final pretrial conference and they did not file the transcripts until the
second day of trial. Those actions violated the district court’s final pretrial order and
local rules, respectively. See C.D. Cal. R. 32-1. Further, in their briefing to this
Court, Plaintiffs fail to point to any prejudice from the omission of their proposed
experts; instead, they assert that “[e]ven if the [district] court was correct, in the
interest of justice, the court should have allowed the expert’s testimony to be used.”
But Plaintiffs have not explained how denying their request to present their experts
through their deposition testimony, and enforcing the district court’s rules and order
6 instead, contravened the interests of justice. Therefore, as Plaintiffs violated the
district court’s rules and orders and, regardless, have neither shown prejudice nor
how the interests of justice were not served, we affirm.
7. Plaintiffs appeal the district court’s grant of Defendants’ JMOL motion
on Plaintiffs’ intentional infliction of emotional distress and negligent warrant
execution claims. Plaintiffs’ briefing here rehashes the evidence and testimony but
does not state how the district court erred. We will not “manufacture arguments for
an appellant,” so Plaintiffs forfeited this issue by not adequately raising it in their
opening brief. See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994).
8. Plaintiffs argue that the district court erred in rejecting two of their
proposed trial exhibits: an unsigned lease for the subject property (Exhibit 2) and a
seller’s permit from the California Department of Tax and Fee Administration
(Exhibit 8). Plaintiffs forfeited this issue as to Exhibit 8 by failing to adequately
address this Exhibit in their opening brief. See Greenwood, 28 F.3d at 977.
As to Exhibit 2, the district court held that the lease agreement lacked
foundation because it was not signed and the witness through whom Plaintiffs sought
to introduce the agreement was not a party to it. Plaintiffs now argue that they sought
to introduce the lease agreement as a measure of damages. But they do not explain
how they could be prejudiced by the exclusion of evidence that went to damages in
a case where the jury did not find liability.
7 AFFIRMED.