NOT FOR PUBLICATION                          FILED
                   UNITED STATES COURT OF APPEALS                      OCT 22 2020
                                                                    MOLLY C. DWYER, CLERK
                                                                     U.S. COURT OF APPEALS
                          FOR THE NINTH CIRCUIT

JOHN H. BAKER, an individual,                  No.   19-16431

               Plaintiff-Appellee,             D.C. No.
                                               1:16-cv-00840-DAD-SAB
 v.

COTTRELL, INC.,                                MEMORANDUM*

               Defendant-Appellant.

JOHN H. BAKER, an individual,                  No.   19-16528

               Plaintiff-Appellant,
                                               D.C. No.
 v.                                            1:16-cv-00840-DAD-SAB

COTTRELL, INC.,

               Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Eastern District of California
                    Dale A. Drozd, District Judge, Presiding

                          Submitted October 19, 2020**
                            San Francisco, California


      *
          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).
Before: HAWKINS, N.R. SMITH, and R. NELSON, Circuit Judges.

      After he sustained a compound leg fracture from falling off the ladder on a

Cottrell, Inc. automobile transport trailer, plaintiff John Baker sued Cottrell alleging

liability on theories of strict products liability, breach of an implied warranty, and

negligence.    A jury determined that Cottrell was liable on a single theory of

negligence. In these cross-appeals, Baker and Cottrell challenge the district court’s

denial of their respective motions for judgment as a matter of law as well as motions

relating to alleged discovery misconduct and costs. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

      1.      Cottrell and Baker first challenge the district court’s denial of their

motions under Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 50(b), seeking

judgment as a matter of law on Baker’s claim for negligence and Baker’s claim for

breach of the implied warranty, respectively. We review de novo the denial of a

renewed motion for judgment as a matter of law. Lakeside-Scott v. Multnomah

Cnty., 

, 802 (9th Cir. 2009). We view the evidence “in the light most

favorable to the party in whose favor the jury returned a verdict and draw all

reasonable inferences in [that party’s] favor.”

aside the jury’s verdict

“only if, under governing law, there can be but one reasonable conclusion as to the

verdict and only if there is no legally sufficient basis for a reasonable jury to find for

that party on that issue.” Jules Jordan Video, Inc. v. 144942 Canada Inc., 

                                    19-16431
1146, 1155 (9th Cir. 2010) (internal quotation marks and citation omitted). Neither

Cottrell nor Baker have demonstrated that standard is met here.

      Although a finding of negligent design generally is precluded if a jury finds

no defect in design for purposes of strict liability, Lambert v. Gen. Motors, 79 Cal.

Rptr. 2d 657, 659–60 (Ct. App. 1998), the jury’s negligence verdict did not rest on

a theory of negligent design. Instead, as the district court noted, the negligence

instructions “turned on whether [Cottrell] was negligent in supplying the ladder.”

The case on which Cottrell relies does not foreclose a finding of liability under the

circumstances. See Arriaga v. CitiCapital Com. Corp., 

, 154

(Ct. App. 2008) (finding no duty to inspect and no negligence where defendant was

a “passive” “finance lessor” that “had neither the opportunity nor the expertise to

inspect the machine in order to discover defects”).

      As he did in district court, Baker fails to identify meaningfully the elements

of a breach of implied warranty claim or the specific evidence adduced at trial that

he contends establish each element of the claim. In light of the instructions given,

which Baker does not challenge, a reasonable jury could have ruled in favor of

Cottrell on Baker’s breach of implied warranty claim. See A.D. v. Cal. Highway

Patrol, 

, 453, 456–58 (9th Cir. 2013) (discussing burden for obtaining

judgment as a matter of law and deference to jury findings).




                                         3                                    19-16431
      2.      Cottrell next contends that the district court erred by denying its motion

under Fed. R. Civ. P. 60(b) for relief from the judgment on account of Baker’s

alleged fraud stemming from his failure to disclose the contact information for and

interview notes regarding eyewitness Dennis Jacobson. The district court did not

abuse its discretion. De Saracho v. Custom Food Mach., Inc., 

, 880

(9th Cir. 2000). Cottrell was aware of Jacobson and his status as a potential witness

to the accident at all relevant times; Cottrell ultimately was able to obtain a statement

from Jacobson and play an audio recording of that statement to the jury. Although

Baker should have supplemented his disclosures and discovery responses, the

district court reasonably concluded that, even assuming Baker’s conduct amounted

to fraud, Cottrell could have discovered the undisclosed information prior to trial

through the exercise of due diligence and in any event was not prejudiced. See id.;

Pac. & Arctic Ry. & Nav. Co. v. United Transp. Union, 

, 1148 (9th

Cir. 1991).

      3.      The district court likewise did not abuse its discretion by denying

Baker’s motion for expenses pursuant to Fed. R. Civ. P. 37. See Magnetar Techs.

Corp. v. Intamin, Ltd., 

, 1155 (9th Cir. 2015). The district court

permissibly concluded that Cottrell had a reasonable basis to believe it might prevail

at trial on Baker’s contentions that Cottrell was partially at fault for his accident, the




                                            4                                     19-16431
ladder was designed defectively, and the ladder was in a used condition at the time

of sale. See

    Finally, Baker contends that the district court abused its discretion by

failing to award him taxable costs. See Fed. R. Civ. P. 54(d). Generally, a district

court has discretion to deny a prevailing party’s request for an award of taxable costs

but must specify its reasons for denying such a request. Berkla v. Corel Corp., 

, 921 (9th Cir. 2002).        Here, Baker failed to utilize the procedures

established by the local rules to have the district court review his request in

accordance with Fed. R. Civ. P. 54. See E.D. Cal. R. 292(e) (“On motion filed and

served within seven (7) days after notice of the taxing of costs has been served, the

action of the Clerk may be reviewed by the Court as provided in Fed. R. Civ. P.

54(d).”). We, therefore, will not disturb the district court’s action.

      Cottrell’s motion to file a supplemental brief (Docket Entry No. 39) and

Baker’s motion to file a replacement reply brief (Docket Entry No. 41) are granted.

The supplemental and replacement briefs are deemed filed.

      AFFIRMED.




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