United States of America for the use and benefit of Porges Electrical Group, Inc., a California Corporation v. Travelers Casualty and Surety Company of America

Filing 288

Order granting 263 Motion for Judgment as a Matter of Law on PEG's Reasonable Value claim and conditionally orders a new trial should the judgment be vacated or reversed on appeal, and DENIES the motion for judgment as a matter of law as to all other claims; granting 264 Motion for New Trial on damages only. Signed by Senior Judge Consuelo Bland Marshall on 4/12/2021. (fad, )

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UNITED STATES DISTRICT COURT

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TERRITORY OF GUAM

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UNITED STATES OF AMERICA for
PORGES
ELECTRICAL GROUP, INC.,

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v.

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TRAVELERS CASUALTY AND
SURETY COMPANY OF AMERICA
and PATRICIA I. ROMERO, INC.,
doing business as PACIFIC WEST
BUILDERS,

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Case No.: CV 15-00024
ORDER RE: DEFENDANTS’
MOTION FOR JUDGMENT AS A
MATTER OF LAW [DKT. NO. 263]
AND DEFENDANTS’ MOTION
FOR A NEW TRIAL [DKT. NO.
264]

Defendants.

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s before the Court are (1) Defendants’ Renewed Motion for

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J

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Defendants’ Motion for a New Trial.

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Matter of Law (“Renewed JMOL”) (Dkt. No. 263); and (2)
I.

BACKGROUND

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with Porges Electrical Group, Inc. (“Porges” or “PEG”) with respect to certain
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Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 1 of 40

xperienced

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.

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of the contract and

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obligations, and asserts backcharges against PEG as a result.

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favor of PEG on all of

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backcharges. Following trial, PWB brought the instant Motion for J

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Matter of Law and Motion for a New Trial.
II.

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A.

in

STATEMENT OF THE LAW

Motion for Judgment as a Matter of Law

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would not have a lega

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50(a)(1).

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R. Civ. P. 50(b).

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Wallace v. City of San Diego
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Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 2 of 40

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evidence. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 150 (2000).

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Although the Court reviews the record as a whole, it “disregard[s] all evidence
o believe.” Id.

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Wallace,

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law is

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Id.

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he non-

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Mangum v. Action Collection Serv., Inc.,

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B.

Motion for a New Trial

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--

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-- . . . after a

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action at law in federal court.” Fed. R. Civ. P. 59(a)(1). Rule 59 further provides

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that “the court,

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in its order.” Fed. R. Civ. P. 59(d).

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..

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sponte raise its own concerns,” and the court “can grant a new trial under Rule 59

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Experience Hendrix

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L.L.C. v. Hendrixlicensing.com Ltd, 762 F.3d 829, 842 (9th Cir. 2014). “Unlike

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Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 3 of 40

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to the verdict. Instead, the district court can weigh the evidence and assess the
Id.

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tted).

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’s verdict is against

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the “clear weight of the evidence.” Tortu v. Las Vegas Metro. Police Dep't, 556

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F.3d 1075, 1083 (9th Cir. 2009). “When the court, after viewing the evidence

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Fenner v. Dependable Trucking Co., 716 F.2d 598, 603 (9th Cir.

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1983).
new trial will be

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record.” Experience Hendrix L.L.C., 762 F.3d at 842

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law.” E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951, 962 (9th Cir. 2009)

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III.

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RULES OF DECISION

PEG’s

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Court to

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California contract law”

Yang v. Majestic Blue Fisheries, LLC, 2015
, 876 F.3d 996 (9th Cir. 2017).

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///

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///

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///
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Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 4 of 40

IV.

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A.

Motion for Judgment as a Matter of Law
1.

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DISCUSSION

Waiver

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-

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tion

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P.

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See Nassar v. Jackson, 779 F.3d

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547, 552 (8th Cir. 2015) (“As the school district and Jackson seek either a new

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.1

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Cf. Am. Bank of St. Paul v. TD Bank, N.A., 713 F.3d 455, 468 (8th Cir. 2013).
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Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 5 of 40

1
2.

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Breach of Contract
a)

Unpaid Contract Balance

b)

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Delay Damages

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c

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“[d]

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contract,”2

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as discussed below.

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(1)

Contractual Control Over the Schedule

P

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appears to contend that the contractual

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provision granting PWB control over the work schedule renders inapplicable the

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a subcontractor’s work.

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the subcontractor.” Frank T. Hickey, Inc. v. Los Angeles Jewish Cmty. Council, 128

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Cal. App. 2d 676, 685 (1954), cited with approval in MElectric Corp. v. Phil-Gets

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Id. at 685.

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he MWD Subcontract provides:

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2

See JMR Constr. Corp. v. Envtl. Assessment & Remediation Mgmt., Inc., 243 Cal.
App. 4th 571, 585 (2015),
(Jan. 28, 2016).
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Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 6 of 40

Subcontract and that it shall be the Subcontractor’s obligation

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according to the schedule of the Contractor, and to coordinate
this work with that of all other contractors, subcontractor[s],

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ractor shall have
complete control over the sequence in which the various
portions o[f] the work shall be done and update the schedule as

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work accordingly.… (Ex.

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ere is nothing in the contractual language displacing the usual rule of

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)

Hickey. While the contractual language
gives PWB

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See Hickey, 128 Cal. Ap
the obligation of “the contractor who is in control of the work being
performed
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(2)

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Measure of Delay

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PWB contends

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he

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3

Cf. Carma Developers (Cal.), Inc. v. Marathon Dev. California, Inc., 2 Cal. 4th
34

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Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 7 of 40

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cited provisions

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deadlines for PWB.4

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PEG’s cause of action for breach of contract relied, at least in part,

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the agreed-

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as he or she would have occupied if the defendant had not breached the contract.

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In other wo
Lewis Jorge Constr. Mgmt., Inc. v. Pomona

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, 34 Cal. 4th 960, 967-

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is the position PEG would be in if PWB had provided PEG with the access and

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See, e.g., T9 122:11-18 (noting th

contractor
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—

-

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for design and construction.”).

See T10 52:14s.”). Accord 18

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general

Californi
4502; Tonkin Constr. Co. v. Cty. of
Humboldt, 188 Cal. App. 3d 828, 832 (1987).
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Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 8 of 40

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site are relevant because

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as an experienced electrical

subcontractor o
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was

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PWB had provided PEG with the access and pr

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-upon

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Lewis Jorge Constr. Mgmt., 34 Cal. 4th at 967, and there is

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evi

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(3)

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Failure to Perform Critical Path Analysis

PWB

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Although the c

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, 10 the current

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dispute is

Compare United States v. Allegheny Cty., Pa.,

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23

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See T2 67:3-22.
See
-24.
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Id. at 238:12-24.
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See Commercial Contractors, Inc. v. United States, 29 Fed. Cl. 654, 661 (1993).
8

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Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 9 of 40

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322 U.S. 174, 183 (1944), abrogated on other grounds by United States v. City of

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Detroit

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which the United States is exercising its constitutional functions, their
liens which

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with Howard Contracting, Inc. v. G.A. MacDonald Constr. Co., 71

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Cal. App. 4th 38, 52 (1998),

(Jan. 20, 1999) (noting Mega

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Construction Co., Inc. v. United States, 29 Fed. Cl. 396 (1993) “held that a
on of evidence

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path,” but concluding the Mega Construction case “does not stand for the
establish the

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,” and “[e]ven if the case did stand for

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a valid

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contract; (2)

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of Guam v. Kim
for which

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, and therefore
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the failure to provide a criti
(4)

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Failure to Prove Responsibility for All Delays

PWB

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including

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is

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See also Dkt. No. 168 at 2 n.1.
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Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 10 of 40

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appropriate under the governing law. 12
U

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See, e.g., Youngdale

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& Sons Const. Co. v. United States, 27 Fed. Cl. 516, 550 (1993). PWB seeks

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owever, under California law, the

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See, e.g., Hickey, 128 Cal. App. 2d at

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as between a subcontractor and the contractor who is in control of the work being

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subcontractor.”). 13

he Court follows California law and holds in the

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Hickey, 128 Cal. App. 2d at 685.
(5)

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PWB do

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CACI 4543; accord JMR Constr. Corp, 243 Cal. App. 4th at

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24

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Accord In re Groggel

ctor can be liable to its

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Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 11 of 40

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3

PWB, however,

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e lack of

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g

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reports

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business, that PEG relied on the records for its budgeting, and that David Porges

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reviewed those records o

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the storage of those records and the process for generating

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reports therefro ; 16 and

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after having reviewed the reports, the rep

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been inputted

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basis for

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expenses.

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PWB challenges

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(as

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24

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See Exs.

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T2 32:11-34:16; 129:15-130:17.
T2 130:23-132:7.
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See, e.g. id. at 132:16-133:19.
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See, e.g.
Tr. 262:1-8; 264:18-65:9; 269:20-70:1; 275:23-76:4.
16

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Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 12 of 40

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discussed above) and

PWB

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3
-

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go through each line-

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-

and

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, thus

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—at its discretion—either (1)

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and

to
decide that David Porges

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David

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Porges’s

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consti

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to support

at trial

refore, there was substantial evidence
PWB also argues PEG’s

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e incident to

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27

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See Ex. 278.
See

14.3.1.
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Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 13 of 40

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and cleanup, etc., are allowable as direct or indirect costs, provided the accounting

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followed cost accounting practice for all work.” In the absence of authoritative
regarding the

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accurate and certain result.” A. A. Baxter Corp. v. Colt Indus., Inc., 10 Cal. App.

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accurate and certain result” than an across-the-

California law

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PWB also
-

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.

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—

he fact that PEG

—

per se

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ve included

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as the one-

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Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 14 of 40

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eviden

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contract.
PWB further argues

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on the

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oice included

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PEG does not

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Although concerns about doubleof law in PWB’s favor, it supports

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See Experience Hendrix, 762 F.3d at 847-

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order granting a ne

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(6)

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PWB

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“W

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West v. All State

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24

21

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27

22

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See
See Ex. NI.

303:2-8.
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Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 15 of 40

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Boiler, Inc., 146 F.3d 1368, 1378 (Fed. Cir. 1998)

2

Capital Elec. Co. v.

United States
,’” and the Court of

3
has “

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5

unabsorbed, indirect costs that result.” Id. at 1372

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Eichleay

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9

costs. 24 JMR Constr. Corp., 243 Cal. App. 4th at

Eichleay

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overhead is thus calculated as follows:

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×

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=

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=

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18

×

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=

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Eichleay

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-

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24

Altmayer v. Johnson, 79 F.3d 1129, 1133 (Fed. Cir. 1996). It is not clear to what

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27

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at 587.

Under California law, the Eichleay

See JMR Constr. Corp., 243 Cal. App. 4th
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Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 16 of 40

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2

To the extent California law “places the [general contractor] under an obligation to

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4

attributable to the subcontractor,” Hickey
s before

5
Eichleay

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7

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otherwise(a)

8

Notwithstanding the above, PWB

9

Eichleay

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12
13
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15

, 12 F.3d 1053, 1058 (Fed. Cir.

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17

1993).

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and did n

Moreover, the fact that

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22
23

25

24

See Howard Contracting,
Inc. v. G.A. MacDonald Constr. Co., 71 Cal. App. 4th 38, 52 (1998), as
d (Jan. 20, 1999) (“Mega Construction does not stand for the proposition

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Of the two California cases discussing the use of the Eichleay

federal decisiona
use of the Eichleay

la. See JMR Constr. Corp., 243 Cal. App. 4th at 588.
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Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 17 of 40

Cf. West v. All State Boiler, Inc., 146 F.3d at 1380 (“While its

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3

accelerate another contract nor can it know when those resources will be available

4

to begin work on the next contract.”); id.

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6

go unabsorbed.”).

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8

other work.

ever, u
Eichleay

9
10
11
Id. 26

12
PWB further

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15

PWB, however, appears to

sunderstand the law regarding the Eichleay
Id.

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factor, then, is not whether the contractor was able to obtain or to continue work

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a replacement contract to absorb the indirect costs that would otherwise be

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c

, and therefore
Eichleay

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24
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28

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on other work. See Mech-Con Corp. v. West, 61 F.3d 883, 886 (Fed. Cir. 1995)
(“[W]hen a contractor can show that the govern
contractor has established a prima facie
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Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 18 of 40

(b)

1

Amount of Damages

2
3
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5
be in had PWB provided it

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8
9

Moreover, th

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12
See West v. All State Boiler, Inc., 146 F.3d at 1378 (“A

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proportional fraction of its total indirect costs for the contract period based both

16

on the anticipated time of total performance of each particular contract as well as

17

its othe

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appropriate share of indirect cos

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the [sub]contractor’s.” Id. at 1379-

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its bid.
PWB also contends there is no evidence to suppor

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Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 19 of 40

was evidence

1

at trial supporting
accurate.

2
3

PWB also argues

4
a reasonable

5

erhead and which do not.27

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7
8
(c)

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Extra Work

10
but instead

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12

work. PWB’s

13
14

support an inference that PEG had actual

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17
18

hour. But it appears to be

19
cannot

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21
PEG contends

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24

irrelevant because

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27
28

27

See Exs. 279-83.
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Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 20 of 40

ne which

1
2
owever, there was no evidence

3

PWB

4

supporting a higher award
instances of particular
not have been

5
6

awarded.

7

3.

8

with respect to
Reasonable Value

PWB

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10

both parties intended to disregard the contract.”

11

Oaks, 27 Cal. 4th 228
both parties continued to assert various

12

.28 PEG

13
14

nonetheless argues the evidence supp

15

subcontract change order process.’”

r of certain rights under the contract

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17

-in-

does not constitute an intent to disregard th

18
Ben-Zvi v. Edmar Co.,

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20

40 Cal. App. 4th 468, 474 (1995)

None of the cases

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22

Even if California law

d

23

the parties abandoned the subcontracts’ change order process but not the rest of the

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26
27
28

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See, e.g., T2 46:20-25, 48:20-49:5.
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Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 21 of 40

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2
3
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5

law on PEG’s reasonable
.

6
7

B.

Motion for a New Trial

8

1.

Clear Weight of the Evidence

9

PWB argues a new trial should be granted because the clear weight of the
PWB reasserts the

10

addressed

11
12

a new

13

trial. (See supra.) PWB’s additional challenges set forth in its Motion for a New

14

Trial are discussed below.

15
16

a)

Breach of Contract
(1)

Delay Damages

17
cts provide:

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20

Subcontract and that it shall be the Subcontractor’s obligation
r, in

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23
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25
26
27
28

according to the schedule of the Contractor, and to coordinate
this work with that of all other contractors, subcontractor[s],
an
portions o[f] the work shall be done and update the schedule as
No extension of time shall be considered
the Subcontractor becomes aware of a delay. Failure to give
such notice shall constitute a waiver of any claim or extension
of time due to such delay. (E
.)
22
Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 22 of 40

PEG does not dispute it did not give written notice within 10

1
2
3

action. Instead, PEG argues (1)

4
2)

5
6

of written notice do no
ere is

7

evidence in the record to support a

8
29

9

-

10
11

Defendants argue

12
13

whenever

pointed out that
erhead,

14
15
the fact that

16
17

calculations

18

of cross-

changed his

ed that his previous calculation
tion. PWB has not

19
Even

20

no weight, it is not proper to grant a new trial on this basis

21
22
s.

23
24

verdict

is not against the

clear weight of the evidence.

25
26
27

29

See, e.g., T3 108:10fact that an “extension” was “considered,” i.e., that the schedule was updated to

28
23
Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 23 of 40

(2)

1
2

Extra Work

PWB

3
4

Changes –

5

by the Contractor and the cost thereof to the Contractor has
been agreed to in writing.

6
7

Subcontract,
price of this Subcontract.… (E

8

.)

9
10
, however, does not warrant a new trial because there was evidence

11
12

presented at trial that the

13
, which is

14
15

(a)

16

Speci
(i)

17

Soil Conditions

18
19
ealing with those

20
21
22

th a contra

23
24

, the stricter of the two standards would

25
26

govern

27

Proposal reli

28

work in connection with the soil conditions constituted extra
24
Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 24 of 40

1

work.
(ii)

2

Fire Alarm Redesign

3
4

redesign i
ed a training

5
6
7
8

in

9
n

10

PEG does not
a new trial on

11
on this issue is warranted.

12
13

2.

Purported Inconsistencies in the Verdict

14

PWB contends portions

15
16
17

are inconsistent, “a trial court ha

18

possible.” El-Hakem v. BJY Inc., 415 F.3d 1068, 1074 (9th Cir. 2005). In doing so,

19
Zhang v. American Gem

20
21

Seafoods, Inc.

22

Gallic v. Baltimore &

O. R.R. Co., 372 U.S. 108, 119 (1963)).

23
24
25
26
27
28

MWD Breach of Contract

Requested

Unpaid Contract Balance
25
Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 25 of 40

Awarded

Extra Work

1
2
3

Total

$262,133.32

$262,133.32

Requested

Awarded

$262,133.32

$116,059.41

Requested

Awarded

$262,133.32

$116,059.41

Requested

4

Awarded

$31,041.09

$31,041.09

Requested

Awarded

$419,147.23

$419,147.23

Requested

Awarded

5
6

MWD Miller Act

7

Unpaid Contract Balance

8

Extra Work

9
10
11

Total

12
13

MWD Reasonable Value

14

Total

15
16

MWD Set-

17

Total

18
19

Red Horse Breach of Contract

20

Unpaid Contract Balance

21

Extra Work

22
23
24

Total

25
26

Red Horse Miller Act

27

Unpaid Contract Balance

28

Extra Work
26
Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 26 of 40

1
2
Total

$419,147.23

$263,041.63

Requested

Awarded

$419,147.23

$263,041.63

Requested

3

Awarded

$35,536.03

$35,536.03

4
5

Red Horse Reasonable Value

6

Total

7
8

Red Horse Set-

9

Total

10

a)

Failure of Condition Precedent

11
12
13

JSW.30

14

he work at PEG’s direction or PEG had
31

15
16

JSW was not within the scope of PEG’s subcontract and it had not directed JSW to
32

17
18

asserted a back-charge against PEG in this action for the cost of JSW’s work,

19

asserting the work was within the scope of PEG’s subcontract and PEG had

20

-charge
33

21

34

22
23
24

30

25

31

26

See generally Ex. 586.
See id. at 586.18, 586.20.
32
See id. at 586.16.
33

-

27
28

-charge.
34

Dkt. No. 241 at 6.
27
Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 27 of 40

provided:

1
2

to the owner the value of all work of the Subcontractor

3
4
5
6

provide

7
8

shall execute a waiver of Mechanic’s Lien provisions … in its
own behalf and
Lien law … from all persons supplying materials, services

9

Subcontractor upon the project.

10

(Ex.

As a condition precedent … to

.)

refore, the issue is whether

11

was liable for the cost of the

12
Based on the plain language of the

13
14

clause,35 i

se with

who will be

15
the

16
17
.

18
19

act that JSW sought

20
21

36

22

Further, even though

23
24

conclude PEG believed it was not, which

25

t work

26

35

27

See
interpretation, if the language is clear and explicit, and does not involve an

28

36

See Ex. 586.15.
28
Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 28 of 40

1

on its behalf.

that PEG is liable for the cost of the

2
3
s award of back-

4
5

b)

6

Impossibility of Determining Judgment Amount from the
Verdict

7
PWB

8
9
10
11
12
13
14
15

37

16

fendant,

17
18
-

19
20
21

38

22
23
24
25

37

See Dkt. No.

t

26
27

Accordi
38

28
29
Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 29 of 40

1
2
3

a)

Breach of Contract and Abandonment of Contract

PWB
PWB both breached and abandoned the parties’ subcontracts. Because the Court
on PEG’s reasonable value

4

is

5
6

e Court, however,

issue a conditional ruling indicating whether a

7
8

“is later vacated or reversed.” Fed. R. Civ. P. 50(c)(1). “P

9
Moreover,

10

contracts in their

11
12
13
in

14
15

since the breach could pertain to a contractual provisions that was not abandoned.

16
17
inst PEG on its reasonable value

18
19

the Court

20

El-Hakem, 415 F.3d at 1074. “In

21
22
23

Id.

24
25
26

subcontracts, but also found the subcontracts were breached before
for breach of a

27
28

contract that occur
30
Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 30 of 40

ons,

1

recovering the reasonable value of services provided after the contract is

2

abandoned. See, e.g., C. Norman Peterson Co. v. Container Corp. of America, 172

3

Cal. App. 3d 628, 640, 642-44 (1985) (“We agree with respondent that rather than

4
5
to proceed with the

6

that the parties

7

nothing in the record precludes

8

erefore,

9
10

a
—

11
12

—

and order a new trial. Gallick v. Baltimore & O. R. Co., 372 U.S. 108, 119 (1963).
b)

13

Duplicative Damages Awards for Breach of Contract and
Reasonable Value

14
Given t

15

as discussed above, t

16

thus

17
39

18
19

instructed

20

of contract award].”40 On PEG’s
41

21
22
42

23

EG’s reasonable

24
25
26
27
28

39

Dkt. No. 241 at 4-5, 7-8.
Id. at 5, 8.
41
Id. at 2, 5-6.
42
See T10 52:21for in this lawsuit
40

265-178, Ex. 1012 (“Excerpts of
-6.
31

Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 31 of 40

43

1
2
3
4

breach of

5
44

6
B

7

it appears

8
9

returned a

10
11

duplicative verdict in contravention of the Court’s instructions as a result. It

12

appears

13
led

14

to believe that the verdict

15
16

abandoned the subcontracts’ change-order process—
—not to whether the subcontracts

17
18
19
20
21
In light of these considerations,

22
23

result absent a new trial on PEG’s
s

24
25
26
27
28

43

Dkt. No. 241 at 5, 8.
See Opp’n to JMOL Mot. at 22 (“Porges concedes that the reasonable value
verdict is duplicative of the breach of contract verdict.”).

44

32
Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 32 of 40

45

1
c)

2

n Breach of Contract Damages and
Miller Act Damages

3
PWB also

4
5

owever, the

6

PEG’s breach of contract under California law and

7

instructed on

8
9

standards set out in these separate instructions, reached two separate results.

10
11
PWB nonetheless argues

12
13
14
15
16

for purposes of the Miller Act is conce

17
18

subcontracts, and the fact
Moreover, to the extent ther

19
20
21

a legal rule

22
23

that the legal rule was disregarded.

24

2.

Implied Juror Bias

25

PWB also seeks

on the ground the verdict in this

26
27

45

28
33
Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 33 of 40

1

case was the result of

2

Juror No. 20 during voir dire).
a)

3

Juror No. 1’s relationship with Judge Elyze McDonald
Iriarte

4
5

bias on the part of Juror No. 1 (referred to as

PWB argues

6
7

lead local until her appoi

1]

8
9

trial….”

owever, Juror No.
he facts that PWB contends give rise to a

10
11
12

below.

13
14

JUROR NO. 20:

15
16
17
18

JUROR NO. 20:

19
20
21
22
23

…
JUROR NO. 20:
…

24
25
26

So, Joe McDonald—
uncle.
McDonald, he’s also a cousin—
—he’s over in Saipan.

All
FollowMR. BLUM:

27

—

28
34

Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 34 of 40

used to work in

1
2
3
4

JUROR NO. 20:

-

5
6
7

I have no knowledge.
Well, I—

COURT:

8

—

Well, sir.
Wait. We don’t—

9

No follow-

10

-

11
12

MR. BLUM:

13
14

or, we believe there is cause.

15
16
17
18
19

Court Judge, did wor

—we have the

20
21

as well.

22

Well, he has no knowledge of that, though.

23
24
25

esn’t—
MR. BLUM:

Well—

26

—

27
28
35

Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 35 of 40

1

lot of these

2
3

things he learns in the next two weeks about the
relationship. And even though he’s sitting here
now, it’s too close of a relationship. We have

4
5
6
7
8

MR.

—he’s not aware of it now, but he

9
10
11

Just that I think the relationship is too close. And I

12

to talk about cases, but that doesn’t—but because
—

13
14

…
about

15

close

16

up. And I’d like to know, I’d like further
—

17
18

—

19

I would like to—

20

—

21
22

—

—thoughts.

23
24

were there. Was that person there while this case
was pend
—
going on. I think—I think it’s too close of a

25
26
27

…

28
36
Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 36 of 40

1
2

20 t
…

3
4

So, there is a Judge McDonald.
JUROR NO. 20:

Yeah.

JUROR NO. 20:

Well, she’s here.

JUROR NO. 20:

Correct.

5
6
7
8
9

nature of her work before being appointed to the

10
11
12
13
14

JUROR NO. 20:

(Indiscernible). **

JUROR NO. 20:

Just social ga

15
16

JUROR NO. 20:

17
18

And—
JUROR NO. 20:

A couple of weeks ago.

19
20
21

JUROR NO. 20:

22
23
24
25
26
27
28

[before]
JUROR NO. 20:
OURT:
JUROR NO. 20:
she was appointed to the Bench about the nature of
37
Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 37 of 40

1
2
3

JUROR NO. 20:
COURT:
JUROR NO. 20:

4
5
6

—
JUROR NO. 20:
—

7
8
9

JUROR NO. 20:

10
11
12

JUROR NO. 20:
-up

13
14

MR. BLUM:

15
16

se. So, is there
--

17
18

No.

19
20
21
22
23

T1 153:14-162:20.
Nothing in Juror No.

24
25
26

relationship to the case.

27
28

Juror No. 1’s relationship to Judge Iriarte is not persuasive. See United States v.
38
Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 38 of 40

1

Gonzalez, 214 F.3d 1109, 1112-13 (9th Cir. 2000) (
an

2
3

average person in the position of the juror in controversy

4

(e
b)

5
6

Juror No. 1’s Relationship with Zach Damian

PWB’s also argues Juror No.

7
:

8
9
10

JUROR NO. 20:

11
12
13
14

…

15

JUROR NO. 20:

16
17
18

And those—
JUROR NO. 20:

And—

19
20

JUROR NO. 20:

21
22
23
24

JUROR NO. 20:

t least.

25
26

T1 153:14-154:18.

27
28
39
Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 39 of 40

1

process. Neither

2

called the Court’s attention to this relationship, so no

follow-

.
of bias. Cf.

3
4

Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir. 1990)
ad PWB raised the issue and

5
6

, however, is not

7
8
V.

9

CONCLUSION

Court GRANTS

10

and c

11

s a new trial
and DENIES

12
13
As discussed above, PWB

14
15
16
17
18
19

ages

20
21

which PEG was not

entitled to recover, or (b) awarded

22

against the clear weight of the evidence.46

he Court GRANTS the

23
IT IS SO ORDERED.

24
25

DATED: April 12, 2021.

26
27
28

46

s that were

See Section IV.A.2.b(5)
40
Case 1:15-cv-00024 Document 288 Filed 04/13/21 Page 40 of 40