ORDER DENYING PLAINTIFF'S RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW OR IN THE ALTERNATIVE, MOTION FOR NEW TRIAL

JOSEPHINE STATON TUCKER, District Judge.

Before the Court is Plaintiff Veth Mam's Renewed Motion for Judgment as a Matter of Law or in the Alternative, Motion for New Trial. (Mot., Doc. 323.) Defendants opposed, and Plaintiff replied. (Hampton Opp'n, Doc. 324; Miller Opp'n, Doc. 325; Reply, Doc. 326.) The Court finds this matter appropriate for disposition without oral argument. Fed. R. Civ. P. 78(b); C.D. Cal. R. 7-15. Accordingly, the hearing set for July 12, 2013, at 2:30 p.m. is VACATED. For the following reasons, the Court DENIES Plaintiff's Motion.

I. Background

Plaintiff Veth Mam brought this action for violation of civil rights against the City of Fullerton and various officers of the Fullerton Police Department. After the Court ruled on motions for summary judgment, Mam proceeded to trial on three of his claims: (1) First Amendment retaliation against Officer Kenton Hampton; (2) excessive force against Officer Hampton; and (3) malicious prosecution against Officers Frank Nguyen and Jonathan Miller. After an eight-day trial, the jury found in favor of the defendants on all of Mam's claims. (See Docs. 309 & 313.)

Mam now moves for judgment as a matter of law on the three claims tried to a jury, or, alternatively, a new trial.

II. Renewed Motion for Judgment as a Matter of Law

A. Legal Standard

Rule 50(a) of the Federal Rules of Civil Procedure allows a court to enter judgment against a party as a matter of law if "a reasonable jury would not have a legally sufficient evidentiary basis to find for [that] party" as to an issue on which that party has been fully heard during trial. Fed. R. Civ. P. 50(a), (b). However, the jury's verdict must be upheld if, viewing the facts in the light most favorable to the non-moving party, there is sufficient evidence for a reasonable jury to have found in the non-moving party's favor. Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222, 1227 (9th Cir. 2001). A party seeking judgment as a matter of law has a "very high" standard to meet. Costa v. Desert Palace, 299 F.3d 838, 859 (9th Cir. 2002). The Ninth Circuit has held that parties seeking judgment as a matter of law must meet this high burden because courts generally should not impinge upon the province of the jury. See id. ("This high hurdle recognizes that credibility, inferences, and fact finding are the province of the jury, not this court.")

In ruling on a motion for judgment as a matter of law (JMOL), the Court may not make credibility determinations or weigh the evidence, and should view all inferences in the light most favorable to the non-moving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149-50 (2000). The court "may not substitute its view of the evidence for that of the jury." Johnson, 251 F.3d at 1227. A district court may not grant a JMOL unless "the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable persons could have reached." Yurman Design, Inc. v. PAJ Inc., 262 F.3d 101, 108 (2d Cir. 2001).

B. Analysis

Mam argues that the great weight of evidence was against the jury verdict as to all three claims. (See Pl.'s Mem. P. & A. at 1, Doc. 323.) Accordingly, the Court reviews the claims in order.

1. First Amendment Retaliation

Mam argues that he presented substantial evidence that Officer Hampton arrested him in retaliation for his speech (both what he said and his conduct in recording the events that night). He also argues that Hampton offered only his testimony that he did not see Mam's camera and that he was not singling out Mam. The First Amendment retaliation claim has three elements:

(Pl.'s Mem. P. & A. at 2 (quoting jury instruction (emphasis added); see also Jury Instruction # 24, Doc. 310.)

The third element is intent. Officer Hampton provided direct evidence (i.e., his testimony) that he did not take action against Mam because of Mam's speech. The jury apparently credited this testimony, and the Court may not revisit Officer Hampton's credibility.

Accordingly, this contention is without merit.

2. Excessive Force

Sufficient evidence supported the jury's verdict on Mam's excessive force claim. From the video, the jury could have concluded that Mam and his cohorts were dangerously close to the officers. Indeed, the Court previously noted that Mam moved in "very close" to the arrest of Sokha Leng. Mam v. City of Fullerton, No. 8:11-cv-1242-JST (MLGx), 2013 U.S. Dist. LEXIS 34287, at *12 (C.D. Cal. Mar. 12, 2013). Moreover, the video depicted officers instructing the crowd multiple times to "get back" before Officer Hampton arrived and further instructed the group to "get back."

Officer Hampton also testified that he led Mam, after seizing him, away from the crowd "because [he] thought that was the safe place to detain him and also for officer safety reasons." (Opp'n Ex. A (Trial Tr.) at 108:18-109:8, Doc. 324-2.) Officer Hampton further testified that he instructed Mam to get on the ground, and that after he (Mam) did not comply, Officer Hampton then took him to the ground. (Id. at 110:2-13.)

This testimony, along with the other evidence admitted at trial, was sufficient for the jury to find in favor of Officer Hampton on this claim. Mam's expert testimony to the contrary did not require the jury to find in his favor, and a proverbial "battle of the experts" is not a ground for the Court to set aside a jury verdict, as the jury was of course free to credit either expert's testimony. See Apple, Inc. v. Samsung Electronics Co., ___ F. Supp. 2d ___, No. 11-cv-01846-LHK, 2013 WL 412859, at *13 (N.D. Cal. Jan. 29, 2013) (holding that the jury was permitted to credit one party's expert over the other party's expert).

3. Malicious Prosecution

Lastly, sufficient evidence supported the jury's special findings on the malicious prosecution claim. Element four of the malicious prosecution jury instruction provided: "That the officers acted primarily for a purpose other than to bring the plaintiff to justice." (Pl.'s Mem. P. & A. at 7 (quoting jury instruction).) Again, this inquiry was largely one of credibility. If the jury credited the testimony of Officers Nguyen and Miller that they (Nguyen and Miller) believed that it was Mam who jumped on Miller's back, then the jury had sufficient evidence to find, as it did, in favor of the officers on this element of the instruction.

The Court denied summary judgment on this claim, concluding: "A trier of fact could determine that, when confronted with the physical impossibility of Mr. Mam being both the person taking the video and the person in the video, Nguyen and Miller deliberately testified falsely at Mam's criminal trial (and misled D.A. Reed) to sustain the prosecution." (Order at 13, Doc. 257.) The jury could have accepted that theory; it did not, and the jury had sufficient evidence to find in favor of Officers Miller and Nguyen on this claim. First, the officers testified as to their own subjective, good-faith belief that an individual had attempted to grab or choke Miller and that Mam was that individual. The officers also elicited testimony that Mam never provided the police department with his video, so the officers were not able to view it until right before trial. The officers further testified that they did not believe that Mam was the individual who was recording the altercation. In addition, the officers testified as to the chaotic nature of the scene, in support of their contention that their mistake was reasonable. Nguyen testified that he was responding to Miller's "Code 3" call for help because Miller was in a fight with Leng. Miller testified at length about his struggle with Leng. Defendants' expert, Curtis Cope, also testified as to the reasonableness of the officers' identification of Mam under the particular circumstances the officers faced that night.

In short, sufficient evidence supported the jury's findings in favor of the officers on Mam's malicious-prosecution claim.

III. New Trial

A. Legal Standard

Under Federal Rule of Civil Procedure 59(a), a district court may grant a new trial "after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court." Fed. R. Civ. P. 59(a). The Ninth Circuit has held that "[t]he trial court may grant a new trial only if the verdict is contrary to the clear weight of the evidence, is based upon false or perjurious evidence, or to prevent a miscarriage of justice." Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007).

B. Analysis.

1. Verdict Against the Weight of the Evidence

Mam first moves for a new trial on the ground that the jury verdict is against the weight of the evidence. The Court disagrees. This was not a case where the evidence was so lopsided that a new trial must be granted. Credibility was a key issue in this case because of the nature of Mam's claims. The Defendants introduced sufficient direct and indirect evidence in support of their case; indeed, the jury was presented with ample evidence from which they could find in favor of the defendants.

2. Instructional Error

Instructional error is a basis for awarding a party a new trial. See, e.g., Murphy v. City of Long Beach, 914 F.2d 183, 187 (9th Cir. 1990). Mam argues that the Court erred in instructing the jury, over his objection, that the Court had already determined that the officers had probable cause to arrest Mam. Moreover, Mam argues that he was prejudiced because this instruction "stood out on its own" because it was alone on a page, while "the explanations for the interplay of the probable cause issues were buried in other substantive instructions." (Pl.'s Mem. P. & A. at 14.) Mam does not cite any authorities in support of these arguments.

The Court did not err in instructing the jury that it had already determined that probable cause supported Mam's arrest. The Ninth Circuit rejected a similar challenge in Mahoney v. Barlow, 452 F. App'x 724, 726 (9th Cir. 2011): "The district court properly instructed the jury regarding its previous rulings on summary judgment. The court clearly stated that the issue for the jury was whether the officers had used excessive force. The court's statement that it had already determined that Defendants were entitled to use reasonable force did not mislead or unduly prejudice the jury." The Court's instruction was an accurate statement of the law and appropriately focused the jury's attention on the issue before it—whether the force used was excessive.

Mam's second argument, that the probable-cause instruction "stood out on its own," is meritless. "The law presumes that jurors carefully follow the instructions given to them," Caudle v. Bristow Optical Co., Inc., 224 F.3d 1014, 1023 (9th Cir. 2000) (quoting Wade v. Calderon, 29 F.3d 1312, 1321 (9th Cir. 1994) (alteration omitted)), and the Court expressly instructed the jury against singling out an instruction: "In following my instructions, you must follow all of them and not single out some and ignore others; they are all important." (Jury Instruction 1, Doc. 310 (emphasis added).)

3. Cross-examination of Officer Hampton

Mam next contends that the Court erred in prohibiting him from cross-examining Officer Hampton regarding failed polygraphs, civil lawsuits to which he was a party, failed law enforcement employment applications, discipline, and various other prior "bad acts." (See Docs. 176 & 288.) The Court granted Defendants' motions in limine to exclude this evidence as to the liability phase only, subject to renewal during the damages phase. (See Doc. 288.)

The Court did not err in precluding Mam from cross-examining Officer Hampton regarding these instances. Rule 608 of the Federal Rules of Evidence provides that specific instances of conduct may be "inquired into" only if the Court permits and the specific instances are "probative of the character for truthfulness or untruthfulness" of the witness. Fed. R. Evid. 608(b).

The fact that other agencies did not hire Officer Hampton, per se, is not probative of truthfulness. The polygraph evidence was not shown to be sufficiently reliable such that the risk of misleading the jury or unfair prejudice substantially outweighed its probative value, if it had any. See Fed. R. Evid. 403. The other instances Mam wanted to inquire into were also too remote in time or were of little probative value.

4. Defense Counsel's Citation to U.S. Supreme Court

Mam next argues that he is entitled to a new trial based on Officer Hampton's counsel's remark, quoting or paraphrasing the Supreme Court, that not every "push or shove" is a constitutional violation. As Mam concedes, he did not object to this statement in closing argument, so it is reviewed for plain error.

"A new trial should only be granted [on this ground] where the flavor of misconduct . . . sufficiently permeate[s] an entire proceeding to provide conviction that the jury was influenced by passion and prejudice in reaching its verdict." Settlegoode v. Portland Pub. Sch., 371 F.3d 503, 516-17 (9th Cir. 2004) (internal citation and quotation marks omitted) (second alteration in original). "There is an even "high[er] threshold" for granting a new trial where, as here, [Mam] failed to object to the alleged misconduct during trial." (Id. at 517 (quoting Kaiser Steel Corp. v. Frank Coluccio Constr. Co., 785 F.2d 656, 658 (9th Cir. 1986)) (first alteration in original). "A higher threshold is necessary for two reasons: First, raising an objection after the closing argument and before the jury begins deliberations permit[s] the judge to examine the alleged prejudice and to admonish . . . counsel or issue a curative instruction, if warranted." Id. (internal citations and quotation marks omitted). "Second, allowing a party to wait to raise the error until after the negative verdict encourages that party to sit silent in the face of claimed error." Id. (quotation marks omitted). "Plain error review requires: (1) an error; (2) that the error be plain or obvious; (3) that the error have been prejudicial or affect substantial rights; and (4) that review be necessary to prevent a miscarriage of justice." Id.

Mam has not met this high bar, nor does the Court conclude that the statement during closing argument (assuming it was misconduct) "sufficiently permeate[d]" the trial such that the jury "was influenced by passion or prejudice in reaching its verdict." Id. Any error was not plain nor obvious, nor did it "affect substantial rights." Id.

5. Defense Counsel's Reference of Boston Bombing

Lastly, Mam argues that he is entitled to a new trial in light of defense counsel's comment regarding the "Boston Bombers." As set forth above, a new trial is available on this ground only "where the flavor of misconduct . . . sufficiently permeate[d] [the] entire proceeding to provide conviction that the jury was influenced by passion and prejudice in reaching its verdict." Settlegoode, 371 F.3d at 516-17.

The Court agrees that the comment was improper, but it does not require a new trial. As Mam acknowledges, the Court gave a curative instruction at the close of arguments, and in that instruction the Court made clear that the case had nothing to do with tanks in Tiananmen Square (a comment made by Plaintiff's counsel in closing) or bombs in Boston, Massachusetts—those issues were irrelevant. Courts presume that juries follow curative instructions. See Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1270 (9th Cir. 2000) ("[t]here is a strong presumption that the curative instructions given by the district court were followed by the jury"). Moreover, Mam did not ask for any additional relief after the Court issued the curative instruction. Indeed, because the comment was so irrelevant and unrelated to the issues in this case—unlike, perhaps, a case in which there was some allegation of terrorist-type activity—the possibility of prejudice is even more remote.

In any event, the comment, though improper, did not "sufficiently permeate" the trial such that the Court is convinced "that the jury was influenced by passion and prejudice in reaching its verdict." Settlegoode, 371 F.3d at 516-17.

IV. Conclusion

For the foregoing reasons, the Court DENIES Plaintiff's Renewed Motion for Judgment as a Matter of Law or in the Alternative, Motion for New Trial.