Estate of Gustavo Najera, by v. CITY OF ANAHEIM and GERMAN ALVAREZ

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ESTATE OF GUSTAVO NAJERA, by and
through successors in interest, Alejandro
Najera and Maria Magdalena Pliego; et al.
Plaintiffs-Appellants,
v.
CITY OF ANAHEIM and GERMAN
ALVAREZ,
Defendants-Appellees.
No. 18-56057
D.C. No.
8:16-cv-01243-JLS-JCG
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Josephine L. Staton, District Judge, Presiding
Submitted November 4, 2019**
Pasadena, California
Before: MURGUIA and HURWITZ, Circuit Judges, and GUIROLA, JR.,*** District
Judge.
* 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).
*** The Honorable Louis Guirola, Jr., United States Senior District Judge
for the Southern District of Mississippi, sitting by designation.
FILED
NOV 8 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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The Estate of Gustavo Najera and Najera’s parents (collectively, “the Estate”)
brought this 42 U.S.C. § 1983 action against German Alvarez and the City of
Anaheim after Alvarez, an Anaheim police officer, fatally shot Najera. After a jury
found that Alvarez did not use excessive force, the district court entered judgment
in favor of the defendants. We have jurisdiction over the Estate’s appeal under 28
U.S.C. § 1291 and affirm.
1. The district court found that a prospective juror’s statements during voir
dire did not prejudice the jury pool, characterizing the statements as describing only
“indirect” contacts with Alvarez and “his professionalism in a general sense.” We
give “special deference to the district court’s analysis,” Price v. Kramer, 200 F.3d
1237, 1255 (9th Cir. 2000), and find no abuse of discretion.
2. The district court did not abuse its discretion in concluding that defense
counsel’s reference to Najera’s intoxication on the night of the shooting was not
misconduct that “so permeated the trial that the jury was necessarily prejudiced.”
Kehr v. Smith Barney, Harris Upham & Co., Inc., 736 F.2d 1283, 1286 (9th Cir.
1984). The single reference to Najera’s intoxication occurred after four days of
evidence and during “closing argument, rather than throughout the course of the
trial,” and any misconduct was thus “isolated, rather than persistent.” Id. The
district court also repeatedly instructed the jury that the arguments of counsel were

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not evidence. See Mateyko v. Felix, 924 F.2d 824, 828 (9th Cir. 1990).1
3. The district court did not abuse its discretion in allowing defense counsel
to briefly examine Alvarez about his military background. See Fed. R. Evid. 401
advisory comm. note to 1972 amendment (“Evidence which is essentially
background in nature can scarcely be said to involve disputed matter, yet it is
universally offered and admitted as an aid to understanding.”).
4. The district court did not plainly err in denying a new trial because of
defense counsel’s arguments in closing describing this as “a serious case because
plaintiffs are questioning the integrity of Officer Alvarez,” and requesting that the
jury not “sully this good man’s name.” See Settlegoode v. Portland Pub. Sch., 371
F.3d 503, 518 (9th Cir. 2004).
AFFIRMED.
1 The Estate’s reliance on an online post referencing Najera’s intoxication from
a poster who claimed to be the wife of a juror is unavailing. Even assuming that the
blog post is admissible, cf. Fed. R. Evid. 606(b)(2)(A), the district court did not abuse
its discretion in finding it insufficient to establish juror reliance on extraneous
information.

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