Vincent Forbes v. County of Orange

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VINCENT FORBES,
Plaintiff - Appellant,
v.
COUNTY OF ORANGE,
Defendant,
and
DANIEL VILLA, Deputy,
Defendant - Appellee.
No. 13-57189
D.C. No. 8:11-cv-01330-JGB-AN
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Jesus G. Bernal, District Judge, Presiding
Argued and Submitted January 8, 2016
Pasadena, California
FILED
FEB 03 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Before: WATFORD and FRIEDLAND, Circuit Judges, and MOTZ,** Senior
District Judge.
The district court did not abuse its discretion when it denied Vincent Forbes’
request to introduce Edward Gonzales’ deposition testimony at trial. See
Nationwide Life Ins. Co. v. Richards, 541 F.3d 903, 909 (9th Cir. 2008). Nor did
the court abuse its discretion when it denied Forbes’ motion for a new trial based
on the same alleged error. See Jorgensen v. Cassiday, 320 F.3d 906, 918 (9th Cir.
2003).
We will assume, without deciding, that the district court erred when it ruled
that Gonzales had not been validly served with a trial subpoena. Forbes’ counsel
did not know at the time he served the subpoena on Gonzales that Gonzales would
be out of custody on the date he had been subpoenaed to testify. As a result, it is
unclear whether Forbes’ counsel was required to tender witness fees at the time of
service under Federal Rule of Civil Procedure 45(b)(1). See 28 U.S.C. § 1821(f).
Even assuming valid service of the subpoena, Gonzales’ deposition
testimony was not admissible under Federal Rule of Civil Procedure 32(a)(4)(D) or
Federal Rule of Evidence 804(b)(1) unless Forbes demonstrated that Gonzales was
“unavailable”—meaning that Forbes had not been able to procure Gonzales’
** The Honorable J. Frederick Motz, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.

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attendance at the trial by subpoena or through other reasonable means. The district
court permissibly concluded that Forbes failed to make this showing. Several
weeks before trial began, Forbes learned that Gonzales would be released from
custody and did not yet have a place to live. However, Gonzales informed Forbes’
counsel that he thought he would be residing at a sober living facility run by
Owens Place in either Huntington Beach or Costa Mesa. Before trial began,
Forbes’ counsel attempted to locate Gonzales and was unable to do so. When
called upon to explain to the district court what efforts he had made to locate
Gonzales, Forbes’ counsel failed to assert that he had checked the most obvious
location: the Owens Place facilities in Huntington Beach and Costa Mesa. Given
that failure, the district court did not abuse its discretion in concluding that Forbes’
counsel’s other actions to locate Gonzales fell short of reasonably diligent efforts
to secure the Gonzales’ attendance.
For the same reason, the district court did not abuse its discretion in refusing
to admit Gonzales’ deposition testimony under Federal Rule of Civil Procedure
32(a)(4)(E). That provision requires a showing of “exceptional circumstances”
that justify use of the deposition in lieu of live testimony. The district court
permissibly concluded that Forbes’ counsel failed to do as much as he should have
done to ensure Gonzales’ attendance at trial—in particular, looking for Gonzales at

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the only location Gonzales had stated he might be found. The inability to secure
Gonzales’ live testimony at trial cannot be attributed to “exceptional
circumstances.”
AFFIRMED.

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