Unpublished Disposition, 917 F.2d 28 (9th Cir. 1988)

Nos. 87-15097, 88-2809.

United States Court of Appeals, Ninth Circuit.

Before FARRIS and DAVID R. THOMPSON, Circuit Judges, and MUECKE, District Court Judge.^** 

MEMORANDUM^*** 

Appellant Samuel Stanson is the general partner of the Vance Hotel, Ltd. Appellant Fisherman's Building, Inc. is a California corporation that is wholly-owned by Samuel Stanson's family.¹  The two related lawsuits assert claims under 42 U.S.C. § 1983 against defendants/appellees City of Eureka, the Eureka Redevelopment Agency, and various City officials (hereinafter "the City").

In Appeal No. 87-15097, Stanson alleges that the City engaged in a wrongful course of conduct over a nine and one-half year period (from April 1, 1975 until November 1, 1984) that deprived him of his constitutional rights to develop and use the Vance Hotel and the Fisherman's Building. Stanson alleges, among other things, that the City imposed multiple conditions on the use, occupancy, rehabilitation and development of his properties as well as failing to grant him permits to which he was entitled. In addition, Stanson alleges that the City lied to him about how to comply with local building codes.

The District Court granted various summary judgment motions in favor of the City, resulting in the dismissal of several individual City official defendants and the conspiracy cause of action. The District Court denied the City's motion for summary judgment on the merits, finding that there was a disputed factual issue concerning the existence of a municipal policy to deprive Stanson of his constitutional rights. A nine day bench trial concerning the issue of liability was held in September 1987. The District Court ruled in favor of the City on all claims, finding that Stanson had not made an adequate showing to prevail on any claim that he had been deprived of substantive or procedural due process and equal protection. In addition, the District Court found that Stanson had suffered no unconstitutional taking of his property nor had he shown the existence of a municipal policy to discriminate against him.

Appeal No. 88-2809 involves a single incident whereby City employees allegedly, through telephone conversations with a prospective lender, knowingly gave misleading or incorrect information about Stanson's permits. According to Stanson, the misleading information was attributable to a City policy to deprive him of his constitutional rights and resulted in the denial of his loan. The District Court granted summary judgment in favor of the City, finding that there were "at least three legally sufficient grounds for summary judgment in defendants' favor." District Court Order of May 2, 1988, at 4. First, Stanson "failed to make any showing that the city employees acted unreasonably." Id. at 4-5. Second, even if the employees acted unreasonably, Stanson "failed to show facts necessary for the City to be liable for [the employees'] actions." Id. at 5. Third, even if the employees acted wrongfully and the City was liable for the alleged actions, Stanson "failed to show any resulting constitutional deprivation." Id.

DISCUSSION

Stanson challenges the District Court's exclusion of evidence related to the City's dealings with the prior owner of the Vance Hotel. At trial, the City objected on relevancy grounds to a question asked of the current manager of the Vance Hotel. The question concerned the manager's duties as an employee of the former owner of the Vance Hotel. Although Stanson's counsel explained that the evidence was relevant because a comparison would show "that perhaps there may [have been] some unequal treatment," SER²  279, at 282-83, he did not offer any specifics concerning the proffered evidence. The District Court excluded the evidence under Rule 403 of the Federal Rules of Evidence, finding that the probative value of the evidence was outweighed by considerations of undue delay. Id. at 283. Stanson's counsel made no offer of proof following the trial court's exclusion of this evidence. See id.

Appellate courts normally will not review an alleged error concerning the exclusion of evidence without an offer of proof. United States v. Brady, 579 F.2d 1121, 1130-31 (9th Cir. 1978), cert. denied, 439 U.S. 1074, 99 S. Ct. 849 (1979); Young v. City of New Orleans, 751 F.2d 794, 797 (5th Cir. 1985) (Even if trial court's exclusion of experts' opinions was abuse of discretion, issue could not be considered on appeal where no offer of proof of their testimony was made.); U.S. v. Lavallie, 666 F.2d 1217, 1220 (8th Cir. 1981) (Absent offer of proof, appellate court could not ascertain what evidence was to be elicited on cross examination and, therefore, could not find error.); see 21 Wright & Graham, Federal Practice and Procedure Sec. 5040 (West 1977). An offer of proof is not required when "the substance of the evidence ... was apparent from the context in which the questions were asked." Fed.R.Evid. 103(a) (2). The offer of proof should be specific; counsel's statements concerning the substance of the evidence are often not sufficient. See United States v. Cutler, 676 F.2d 1245, 1250 (9th Cir. 1982), cert. denied, 496 U.S. 1079 (1984).

In this matter, Stanson is precluded from claiming error concerning the exclusion of evidence because he did not make an adequate offer of proof. Therefore, the District Court's decision will be affirmed.

This appeal is affirmed for the reasons stated in the District Court's Order granting summary judgment in favor of the City. Order of May 2, 1988.

CONCLUSION

In Appeal No. 87-15097, the District Court's decision is affirmed because Stanson failed to make an adequate offer of proof at trial. Appeal No. 88-2809 is affirmed for the reasons stated in the District Court's Order of May 2, 1988. Appellees' request for sanctions is denied.

AFFIRMED.