Opinion
NOT FOR PUBLICATION
Argued and Submitted July 16, 2003 Pasadena, California
Appeal from the United States District Court for the Central District of California D.C. No. CV-89-01445-WMB William Matthew Byrne, Senior Judge, Presiding
Before: NOONAN, KLEINFELD, and WARDLAW, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
In Pincay v. Andrews, 238 F.3d 1106 (9th Cir. 2001), cert. denied, 122 S.Ct. 195 (2001) ( Pincay I ), we reversed a judgment based on a jury verdict in favor of Pincay and McCarron (Pincay) against their former investment advisor and partner, Vincent Andrews and his associates (Andrews). We held that no reasonable jury could find Pincay did not have constructive notice of his injuries before 1985 and that therefore Pincay§s RICO action was barred by the four-year statute of limitations applicable to civil RICO. Id. at 1110. We added: §Finally, our holding is limited to the civil RICO claims at issue on appeal and does not disturb the jury§s verdict with regard to Pincay and McCarron§s state law claims.§ Id.
Subsequently, the Pincay plaintiffs elected to accept the damages awarded for their state law claims. Andrews contended that the constructive notice found by us in Pincay I applied equally to the state claims. Citing Bennett v. Hibernia Bank, 47 Cal.2d 540, 563 (1956), the district court ruled that it did not. The district court further ruled that the state statute of limitations had been tolled by the defendants§ fraudulent concealment, a tolling denied in Pincay I because constructive notice prevented tolling under the RICO line of cases. The district court further refused to order a remittitur from the jury verdict and denied the defendants§ request to eliminate punitive damages.
On this appeal, the defendants reiterate their argument that Pincay I decided the case by deciding that the plaintiffs had constructive notice in 1980 and so are now barred by the state statute of limitations. The defendants add that their written disclosures precluded a finding of fraud or an award of punitives. They add that, lacking evidence of the defendants§ net worth, the jury improperly speculated in awarding the punitives, and that various factors should have reduced the compensatory damages.
Applying state law to a case in which Pincay I describes many of the facts, we recite only those facts relevant to our decision on the state law claims.
The State Statute Of Limitations .
Andrews§s principal contention is that the California statute of limitations of three years bars Pincay§s claims because Pincay had notice in 1980 and brought suit in 1989. The jury, however, was instructed as follows:
If the plaintiff and defendant are in a fiduciary relationship, the plaintiff is under no duty of inquiry until the relationship is terminated. When the defendants are fiduciaries, the plaintiffs are deemed to have discovered their potential claims when each of them actually discovered the facts constituting the claim.
Both parties submitted the language of this instruction to the district court. The district judge twice afforded opportunity to counsel to object to this instruction and to other pertinent instructions. No objections were offered by counsel. Under Ninth Circuit precedent, a party may not object to a jury instruction to which he has not made timely objection; no plain error exception applies. Voohies-Larson v. Cessna Aircraft Co., 241 F.3d 707, 713 (9th Cir. 2001).
The Pincay plaintiffs testified that relying on the Andrews defendants§ assurances and not reading the documents tendered them, they did not discover the facts constituting their claim until after 1986. The jury returned special verdicts answering with particularity 68 questions and finding that each of the Andrews defendants were fiduciaries for the Pincay plaintiffs; that each of the defendants made false representations and reassurances on which the plaintiffs justifiably relied; that the defendants intentionally concealed material facts from the plaintiffs; and that the Pincay claims for fraud and intentional concealment of the fraud were not barred by the statute of limitations.
The argument now advanced by Andrews on appeal is, in substance, an attack on the jury findings and on the jury instructions. It is an attack that comes over eleven years after the trial and the verdicts. It is an attack excluded by our understanding of former Fed. R. Civ. Proc. 51. Voohies-Larson, 241 F.3d at 713. The new rule does permit an attack for plain error on jury instructions that were unobjected to, but the rule applies to a proceeding commenced before December 2003 only §insofar as just and practicable.§ 538 U.S. 1085 (2003) (preliminary print). Andrews now argues that the California rule is other than that embodied in the instructions and explicitly stated by the district court on remand from us. But neither in the district court nor before this court has Andrews sought to evoke the plain error exception. We decline to do so in a case that went to trial in 1993.
The Evidence Of Fraud .
The Pincay plaintiffs§ testimony as to the Andrews defendants§ misrepresentation supplied the jury with an ample basis for its special verdicts of fraud and of conduct warranting punitive damages. No California law insulates fraudsters from liability because they showered unread documents on their victims. As the jury not unreasonably read the evidence, the two superjockeys were the prey of sophisticated confidence men.
The Calculation Of Damages .
Contrary to Andrews§s contention, evidence of tax benefits is prohibited in calculating the cost of fraud. Danzig v. Jack Grynberg & Assocs., 161 Cal.App.3d 1128, 1139-1140 (1984). Pincay presented evidence that the investments at the time of trial were worthless; Andrews, that they had value; the jury verdict accepted Pincay§s account. The post-trial life that the investments showed cannot be retrofitted to the jury verdict. As the district court held, Pincay presented sufficient evidence of Andrews§s wealth to justify the punitives awarded; the Andrews defendants did not respond on this point to the Pincay supplemental briefing of the district court.
The judgment of the district court is AFFIRMED.