640 Octavia, LLC v. Karl Heinz-Pieper

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
640 OCTAVIA, LLC,
Plaintiff-Appellant,
v.
KARL HEINZ-PIEPER,
Defendant-Appellee.
No. 19-15935
D.C. No. 3:18-cv-01047-WHA
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Submitted April 7, 2021**
Pasadena, California
Before: W. FLETCHER, WATFORD, and HURWITZ, Circuit Judges.
640 Octavia, LLC, appeals a district court judgment, entered after a jury trial,
in this diversity action against Karl Heinz Pieper. The jury found that Pieper’s
roommate had not created a nuisance in a building owned by Octavia through
frequent sexual encounters in Pieper’s apartment with strangers, many of whom
* 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).
FILED
APR 9 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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arrived in the evening or early morning. Octavia asserts that three evidentiary errors
by the district court require reversal. Reviewing for abuse of discretion, Harper v.
City of Los Angeles, 533 F.3d 1010, 1030 (9th Cir. 2008), we affirm.
1. The district court did not abuse its discretion in admitting testimony that
Octavia’s owner and sole member, Edward Kountze, laughed and patted a friend on
the back after that friend yelled a homophobic slur at a passerby. Kountze’s apparent
endorsement of the slur was probative with respect to Pieper’s affirmative defenses
concerning landlord harassment and bias. That the language was inflammatory does
not command a finding of undue prejudice in a case in which allegations of
discrimination were made. See United States v. Cox, 963 F.3d 915, 925 (9th Cir.
2020) (recognizing that evidence in certain types of cases is inherently “emotionally
charged”); United States v. Ellis, 147 F.3d 1131, 1135 (9th Cir. 1998) (noting that
unfair prejudice under Rule 403 exists when the evidence invites decision on an
“improper basis”) (cleaned up).
2. Neither procedural nor substantive prejudice resulted from the district court’s
admission of a video of Kountze making a throat-slitting gesture in front of Pieper’s
door. Although Pieper failed to produce the video during discovery, Kountze knew
about it before testifying and nonetheless denied that he made the gesture. See
Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990) (stating that
prejudice occurs when a discovery violation “impair[s] the defendant’s ability to go

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to trial or threaten[s] to interfere with the rightful decision of the case”). Any danger
of undue substantive prejudice was addressed by the district court’s extensive
limiting instruction, telling the jury that the video could only be considered to
impeach Kountze’s testimony that he had never made such a gesture. We “presume
that juries will follow the district court’s limiting instructions.” United States v.
Mende, 43 F.3d 1298, 1302 (9th Cir. 1995); see also United States v. Escalante, 637
F.2d 1197, 1202 (9th Cir. 1980).
3. Nor do we find the district court’s exclusion of evidence of Pieper’s related
litigation reversible error. The district court’s reference to avoiding “side shows”
shows it “implicitly made the necessary [Rule 403] finding.” United States v.
Ramirez-Jiminez, 967 F.2d 1321, 1326 (9th Cir. 1992). Moreover, any error in
exclusion of the evidence was harmless. The jury was aware of the hostile
relationship between Pieper, Kountze, and Kountze’s partner, and the fact that Pieper
had initiated a separate suit against them alleging tenant harassment would not have
led to a different outcome. See Boyd v. City & Cnty. of San Francisco, 576 F.3d
938, 943 (9th Cir. 2009).
AFFIRMED.

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