Cristina Gutierrez et al v. County of Los Angeles et al

Filing 83

MINUTES OF Motion Hearing held before Judge Christina A. Snyder: The Court GRANTS Defendants' Motions in Limine Nos. 1 56 , 2 57 , 3 58 , and 4 59 to the extent noted herein. The Court DENIES Defendants' Motions in Limine No. 5 60 . Court Reporter: Laura Elias. (gk)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 10-7589-CAS (PLAx)

Title

CRISTINA GUTIERREZ, ET AL. V. COUNTY OF LOS ANGELES, ET
AL.

Present: The Honorable

Date

July 29, 2013

CHRISTINA A. SNYDER

Catherine Jeang

Laura Elias

N/A

Deputy Clerk

Court Reporter / Recorder

Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants

Thomas Beck

Erica Bianco
Richard Rodriguez-Campbell
Thomas Hurrell

Proceedings:

I.

DEFENDANTS’ MOTIONS IN LIMINE (filed July 1, 2013)
[56, 57, 58, 69, 60]

INTRODUCTION

On October 12, 2010, plaintiffs Cristina Gutierrez, Hector Gutierrez Sr., and
Hector Gutierrez Jr. filed the complaint in the instant action against defendants County of
Los Angeles (the “County”); Deputy Reyes # 480735 (“Reyes”), individually and as a
peace officer; Deputy D. Payne #470624 (“Payne”), individually and as a peace officer;
Steve Suzuki #259461 (“Suzuki”); and Captain Matt Dendo (“Dendo”). The gravamen
of plaintiffs’ complaint is that defendant officers entered their residence under the guise
of a probation search related to Alvaro Gutierrez, the Gutierrez’s son and brother of
Hector Jr., and removed jewelry and firearms with no reason to do so.
On July 1, 2013, defendants filed five motions in limine, which are presently
before the Court. Plaintiffs have opposed all five motions.1 After considering the
parties’ arguments, the Court finds and concludes as follows.

1

The Court exercises its discretion to consider plaintiffs’ late-filed oppositions.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 10-7589-CAS (PLAx)

Title

CRISTINA GUTIERREZ, ET AL. V. COUNTY OF LOS ANGELES, ET
AL.

II.

Date

July 29, 2013

DISCUSSION
A.

Motion in Limine No. 1

Defendants argue that any evidence relating to “The Code of Silence” should be
excluded as irrelevant and unduly prejudicial. The Court agrees. Pursuant to Federal
Rule of Evidence 403, “evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, . . . misleading the jury, . . . undue delay . .
. [or] waste of time.” In this case, evidence concerning “The Code of Silence” is of no
relevance in proving whether defendants violated plaintiff’s civil rights. Moreover, the
introduction of such evidence would likely result unfair prejudice to defendants.
Therefore, the Court finds that the probative value of such evidence is substantially
outweighed by the danger of unfair prejudice. Defendants’ motion in limine no. 1 is
GRANTED.
B.

Motion in Limine No. 2

By way of their second motion in limine, defendants seek to exclude any evidence
of alleged past acts committed by Deputy Reyes, or unsubstantiated complaints directed
against him by third-parties. Federal Rule of Evidence 404(b)(1) prohibits the
introduction of “evidence of a crime, wrong, or other act . . . to prove a person’s character
in order to show that on a particular occasion the person acted in accordance with the
character.” Such evidence may be used, however, “for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge, identity absence of mistake, or
lack of accident.” Fed. R. Evid. 404(b)(2).
Plaintiff claims that two incidents are “highly probative.” The first involves an
“unsubstantiated” complaint that Reyes took money from a person by the name of Frank
Escamilla while working as a courtroom bailiff on April 30, 2004. Escamilla is prepared
to testify that Reyes, in his opinion, is “an untrustworthy liar and thief.” The second is a
2011 “incident” involving Fred Meza, who, after a jury trial, was acquitted of felony
possession of a firearm. He contends that the accusations leveled against him by Deputy
Reyes were false and Reyes committed “perjury” by testifying at his trial to the contrary.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 10-7589-CAS (PLAx)

Date

July 29, 2013

Title

CRISTINA GUTIERREZ, ET AL. V. COUNTY OF LOS ANGELES, ET
AL.

The Court finds that evidence regarding other complaints made against Deputy
Reyes should not be admitted. First, neither of these other acts are anything more than
wholly unsubstantiated charges being leveled against Deputy Reyes to impugn his
character. These unsubstantiated charges are not the type of “other acts” evidence that
may be used at trial. See U.S. v. Corona, 34 F.3d 876, 881 (9th Cir. 1994) (holding that
the evidence must be sufficient to support a finding that “the defendant committed the
other act” to be admissible under Rule 404(b)). Second, even if plaintiffs had sufficient
evidence to prove that these alleged acts actually took place in the manner that plaintiffs
contend, plaintiffs have not demonstrated how these acts are relevant to proving their
case, other than by impermissible character-based reasoning. These acts do not go
towards proving Reyes’ alleged “plan” to commit theft or other permissible purpose, as
plaintiffs have no evidence of such a plan or modus operandi. Plaintiffs may not
introduce evidence of these acts under Rule 404(b).
For similar reasons, plaintiffs may not inquire about these alleged acts on crossexamination. Rule 608(b) provides that a court may allow inquiry into specific instances
of a witness’s conduct on cross-examination if they are probative of the [witness’s]
character for truthfulness or untruthfulness.” As with Rule 404(b), the Court will not
permit plaintiffs to inquire about unsubstantiated instances of prior conduct that are not
probative of Reyes’ character for untruthfulness. Accordingly, defendants’ motion in
limine no. 2 is hereby GRANTED.
C.

Motion in Limine No. 3

Defendants seek to exclude any evidence of Deputy Reyes’ financial condition at
the time of the incident on relevance grounds. In their view, the fact that Reyes may have
had financial difficulties at the time of the search and seizure of plaintiffs’ residence has
no bearing on any of plaintiffs’ claims.
The parties agree that Deputy Reyes’ intent is not an element of any of plaintiffs’
claims pertaining to the alleged theft of their jewelry. The constitutional claims that
plaintiffs assert under section 1983 depend on the objective reasonableness of the
deputy’s actions; the conversion claim is a strict liability tort under California law and
therefore requires no proof of the defendant’s knowledge or intent. See Oakdale Vill.
Grp. v. Fong, 43 Cal. App. 4th 539, 543–44 (1996). For all of plaintiffs’ claims
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 10-7589-CAS (PLAx)

Date

July 29, 2013

Title

CRISTINA GUTIERREZ, ET AL. V. COUNTY OF LOS ANGELES, ET
AL.

pertaining to the alleged theft, the question before the jury will be a simple one—did
Deputy Reyes impermissibly take or come into possession of plaintiffs’ jewelry?
In the criminal context, where motive is not an element of the charged offense,
extrinsic evidence of motive may nonetheless be admissible if it is “relevant to establish
an element of the offense that is a material issue.” United States v. Brown, 880 F.2d
1012, 1014 (9th Cir. 1989). For example, evidence of motive may be offered to
demonstrate that the alleged act in fact committed, or to prove the identity of the actor.
Id.
However, the Ninth Circuit has held the government to a stringent standard when it
seeks to offer evidence of a defendant’s poverty to demonstrate motive. The “traditional
view” is that “that evidence of poverty is not admissible to show motive, because it is of
slight probative value and would be unfairly prejudicial to poor people charged with
crimes.” United States v. Mitchell, 172 F.3d 1104, 1108 (9th Cir. 1999). However,
evidence of “impecuniosity” may properly be probative where there has been “an
unexplained and abrupt change of circumstances” for the defendant, or where the
evidence “establishes a likelihood of desperate need and lack of self control, not just
financial interest in being richer.” Id. at 1109. There is also a high “danger of unfair
prejudice” when poverty evidence is at issue. In general, “[t]hat a person is feckless and
poor, or greedy and rich, without more, has little tendency to establish that the person
committed a crime to get more money, and its probative value is substantially outweighed
by the danger of unfair prejudice.” Id. at 1110; see also United States v. Bensimon, 172
F.3d 1121, 1128 (9th Cir. 1999) (finding admission of the defendant’s contemporaneous
bankruptcy filing as evidence of his “financial motive” for committing crimes involving
the sale of narcotics to be in error).
The Court concludes that plaintiffs may not offer this evidence at trial, as plaintiffs
have failed to demonstrate that Reyes had an abrupt change in circumstances at the time
of the incident or “evidence of a specific and immediate financial need” that the theft of
the jewelry could meet. Bensimon, 172 F.3d at 1129. Here, plaintiffs seek to offer
evidence that Reyes’ personal residence was foreclosed on during the same time interval
as the incident in question. Reyes testified in his deposition that he lost the house
because his wife separated from him and he could not afford to pay for the balance on the
note by himself. Plaintiffs also intend to call into question the credibility of Reyes
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 10-7589-CAS (PLAx)

Date

July 29, 2013

Title

CRISTINA GUTIERREZ, ET AL. V. COUNTY OF LOS ANGELES, ET
AL.

assertion that he separated from his spouse in 2009, as Los Angeles County Superior
Court records demonstrate that his spouse separated from Reyes in 2000. While this
evidence may be of marginal relevance in demonstrating Reyes’ motive to steal, it lacks
the “something more” that the Ninth Circuit has repeatedly held is required before
poverty evidence is offered to prove a defendant’s motive to commit a crime. Because
what plaintiffs accuse Deputy Reyes of in this litigation is closely analogous to that of
criminal theft—but without the need to prove intent—the Court finds that this evidence
should be excluded here.
At oral argument, plaintiffs contended that they seek to offer this evidence, along
with evidence of Reyes’ yearly earnings, to demonstrate that a person making this sort of
income should not be in foreclosure. While the Court is unclear as to the inference
plaintiffs seek to gain by introducing the evidence in this fashion, this also does not
appear to be a permissible use of extrinsic evidence. Accordingly, the Court GRANTS
defendants’ motion in limine no. 3.
D.

Motion in Limine No. 4

Defendants’ fourth motion seeks to exclude any evidence of the County of Los
Angeles Office of Ombudsman’s review of the Sheriffs’ Department’s investigation in
this case. After their alleged inability to obtain a meaningful review of the incident by
the Sheriffs Department, including the alleged theft of their jewelry, plaintiffs asked the
Ombudsman to inquire into the circumstances of their complaint and subsequent
investigation.
In their complaint, plaintiffs reference the Ombudsman only in their Monell claim,
which plaintiffs abandoned in response to defendants’ motion for summary judgment.
However, plaintiffs now contend that the Ombudsman’s review was so egregiously
flawed as to cause plaintiffs extreme emotional distress, which goes towards proving their
claim for intentional infliction of emotional distress (“IIED”) directed against the County.
There is no dispute that the Ombudsman is an entity that falls under the County’s
umbrella. While falling short of calling the Ombudsman’s actions intentional, plaintiffs
argue that the Ombudsman acted in such a manner as to recklessly disregard the
substantial certainty that their behavior would result in extreme emotional distress. See,
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 10-7589-CAS (PLAx)

Date

July 29, 2013

Title

CRISTINA GUTIERREZ, ET AL. V. COUNTY OF LOS ANGELES, ET
AL.

e.g. Molko v. Holy Spirit Ass’n, 46 Cal. 3d 1092, 1122 (1988) (reckless disregard of the
probability of causing emotional distress is sufficient to prove an IIED claim).
While plaintiffs may convey that they sought out the Ombudsman’s review and
that such review confirmed the Sheriffs’ Department’s findings, the “thoroughness” of
any review has little to no bearing on plaintiffs’ claims against the named defendants to
this litigation. The evidence presently in the record falls well short of demonstrating that
the employees Ombudsman’s office acted in “reckless disregard” of the substantial
likelihood that their actions would cause plaintiffs extreme emotional distress. Absent
evidence of outrageous or extreme behavior, evidence of the Ombudsman’s review will
be of minimal probative value in proving plaintiffs’ IIED claim.
In addition to its minimal probative value, this evidence has a substantial
likelihood of confusing the issues and misleading the jury. Fed. R. Evid. 403. Nothing
about this review concerns whether the Sheriffs’ Department unconstitutionally deprived
plaintiffs of their property and conspired to conceal this fact from plaintiffs, which are the
major issues to be resolved at trial. Plaintiffs insinuations about the ineffectiveness of the
Ombudsman’s office could serve as a major distraction from these core issues at trial.
Accordingly, the Court GRANTS defendants’ motion in limine no. 4, although
plaintiffs may offer this evidence to the extent noted herein.
E.

Motion in Limine No. 5

This motion in limine seeks to exclude any letters that plaintiffs sent to the
Sheriffs’ Department and Sheriff Leroy Baca complaining about the incident and
subsequent investigation of their complaints. In defendants’ view, this evidence is
irrelevant to proving whether or not they are liable for violating plaintiffs’ constitutional
rights, as plaintiffs’ dissatisfaction has nothing to do with whether the search and
investigation were constitutionally deficient.
The Court will allow plaintiffs to present this correspondence between themselves
and members of the Sheriffs’ Department at trial, as this evidence is likely admissible to
corroborate plaintiffs’ allegations in this action. Through this correspondence, plaintiffs
could demonstrate that they consistently complained about (1) their treatment during the
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 10-7589-CAS (PLAx)

Date

July 29, 2013

Title

CRISTINA GUTIERREZ, ET AL. V. COUNTY OF LOS ANGELES, ET
AL.

incident, (2) alleged theft of their jewelry, and (3) the subsequent investigation. While
this evidence does not “prove” that the Sheriffs’ investigation violated their constitutional
rights or that a deputy took plaintiffs’ jewelry, it will likely serve to corroborate
plaintiffs’ testimony at trial, including plaintiffs’ contention that they consistently
complained about the theft of their jewelry. Because credibility will very much be at
issue, the Court finds that plaintiffs may offer this circumstantial evidence at trial.
Accordingly, defendants’ fifth motion in limine is DENIED.
III.

CONCLUSION

In accordance with the foregoing, the Court GRANTS defendants’ motions in
limine nos. 1, 2, 3, and 4 to the extent noted herein. The Court DENIES defendants’
motions in limine no. 5.
IT IS SO ORDERED.
00
Initials of Preparer

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:

12

CMJ

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