Cota v. County of Kern et al
Filing
26
PRETRIAL ORDER, signed by Magistrate Judge Jennifer L. Thurston on 2/2/2015. Deadlines: Motions in Limine Filing 4/1/2015; Oppositions to Motions in Limine 4/17/2015; Hearing on Motions in Limine set for 4/28/2015 at 10:30 AM before Magistrate Judge Jennifer L. Thurston. Trial Submissions due by 5/1/2015. Jury Trial CONTINUED to 5/13/2015 at 08:30 AM in Bakersfield at 510 19th Street (JLT) before Magistrate Judge Jennifer L. Thurston. (Hall, S)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
JAIME COTA,
12
Plaintiff,
13
v.
14
15
16
COUNTY OF KERN and ERNEST
ALVARADO,
Defendants.
17
18
19
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No.: 1:12-cv-01618- JLT
PRETRIAL ORDER
Deadlines:
Motions in Limine Filing: 4/1/15
Oppositions to Motions in Limine: 4/17/15
Hearing on Motions in Limine: 4/28/15, 10:30 a.m.
Trial Submissions: 5/1/15
Jury trial: 5/13/2015, 8:30 A.M.
Plaintiff Jaime Cota claims that Defendant Ernest Alvarado, a deputy sheriff and employee of
20
the County of Kern, entered Plaintiff’s property and arrested him without a warrant or probable cause,
21
and used excessive force in the course of the arrest. Plaintiff alleges Defendants are liable for
22
violations of his civil rights arising under the Fourth and Fourteenth Amendments to the Constitution of
23
the United States, a violation of the Bane Civil Rights Act, false arrest and/or imprisonment, assault,
24
battery, intentional infliction of emotional distress, and general negligence. (See generally Doc. 1.)
25
Upon consideration of the Joint Pre-Trial Conference Statement (Doc. 24), the parties’
26
comments at the hearing on February 2, 2015, and the file in this case, the Court issues the following
27
Pre-Trial Order.
28
///
1
1
A.
JURISDICTION/ VENUE
The Court has jurisdiction over the claims in this action pursuant to 42 U.S.C. § 1983 and 28
2
3
U.S.C. § 1367(a). (Doc. 1 at 4-5; Doc. 48 at 2.) Further, Plaintiff’s claims arise out of events that
4
occurred in Kern County, California. Accordingly, venue is proper in the United States District Court
5
for the Eastern District of California sitting in Bakersfield. See 28 U.S.C. § 1391.
6
B.
JURY TRIAL
Plaintiff included a demand for jury trial in the Complaint. (Doc. 1 at 1.) Thus, trial will be by
7
8
jury.
9
C.
UNDISPUTED FACTS
1.
10
The incident upon which this action is premised took place on or about December 4 and
December 5, 2011.
11
2.
12
Plaintiffs’ claims herein arise out of an incident involving the Kern County Sheriff’s
Office, in the County of Kern, State of California, and within this judicial district.
13
3.
14
Defendant, ERNEST ALVARADO is a deputy sheriff and employee of the Kern
15
County Sheriff’s Office and Defendant, COUNTY OF KERN, acting within the course
16
and scope of such employment and under color of law on December 4, 2011.
4.
17
employer of Defendant, ERNEST ALVARADO, on December 4, 2011.
18
5.
19
Defendant ERNEST ALVARADO did spray Plaintiff in the face with a chemical agent
and did push back on Plaintiff.
20
21
Defendant, COUNTY OF KERN, is a political subdivision of the state and the public
D.
DISPUTED FACTS
22
All other facts are in dispute, including:
23
1.
Whether Plaintiff was beat with a baton, punched and kicked.
24
2.
Whether Plaintiff lost consciousness.
25
3.
Whether Deputy Alvarado was deliberately indifferent to a known serious medical need
of Plaintiff.
26
27
4.
Whether Deputy Alvarado violated Plaintiff’s Fourth Amendment rights.
28
5.
Whether Kern County or the Kern County Sheriff's Department had a custom or policy
2
that proximately caused a deprivation of constitutional rights.
1
6.
2
Whether Kern County or the Kern County Sheriff’s Department had a custom or policy
3
of deliberate indifference to inmates known serious medical needs which was a
4
proximate cause of Plaintiff’s injury.
5
7.
The nature and extent of Plaintiff’s damages.
6
8.
Whether Deputy Alvarado acted in willful or reckless disregard of federally guaranteed
rights such that exemplary damages are appropriate.
7
9.
8
Whether Deputy Alvarado was lawfully on Plaintiff’s property when he arrested
Plaintiff.
9
10
10.
Whether Deputy Alvarado had probable cause to arrest Plaintiff for public intoxication.
11
11.
Whether Deputy Alvarado used reasonable force to effect the arrest of Plaintiff.
12
12.
Whether Deputy Alvarado is entitled to qualified immunity.
13
E.
None at this time.
14
15
DISPUTED EVIDENTIARY ISSUES
F.
RELIEF SOUGHT
Plaintiff seeks general and special damages for his physical and emotional injuries. Also,
16
17
Plaintiff seeks punitive damages against Defendant Alvarado. Further, Plaintiff seeks an award of
18
attorney’s fees and costs. (See Doc. 1 at 23-24; Doc. 23 at 5.)
19
G.
POINTS OF LAW
20
1.
21
The Fourth Amendment prohibits the use of excessive force, searches and arrests without
22
probable cause or other justification, and provides: “The right of the people to be secure in their
23
persons. . . against unreasonable searches and seizures, shall not be violated, and no Warrants shall
24
issue, but upon probable cause, supported by Oath or affirmation, and particularly describing . . . the
25
persons or things to be seized.” U.S. Constitution, amend. IV.
26
27
28
Fourth Amendment Violations
a.
Unlawful arrest
A claim for unlawful arrest is cognizable when the arrest is alleged to have been made without
probable cause. Dubner v. City & County of San Francisco, 266 F.3d 959, 964 (9th Cir. 2001).
3
1
“Probable cause to arrest exists when officers have knowledge or reasonably trustworthy information
2
sufficient to lead a person of reasonable caution to believe that an offense has been or is being
3
committed by the person being arrested.” Ramirez v. City of Buena Park, 560 F.3d 1012, 1023 (9th
4
Cir. 2009) (quoting United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007)).
5
6
b.
Searches
For the protections of the Fourth Amendment to attach, an individual must have a reasonable
7
expectation of privacy in the place that is invaded. Espinosa v. City and County of San Francisco, 598
8
F.3d 528, 533 (9th Cir. 2010) (citing Minnesota v. Carter, 525 U.S. 83, 88 (1998)). Generally, “a
9
search of a home or residence without a warrant is presumptively unreasonable.” Id. (citing Lopez-
10
11
12
Rodriguez v. Mukasey, 536 F.3d 1012, 1016 (9th Cir. 2008)).
c.
Excessive force
A plaintiff’s “claim[s] that law enforcement officials used excessive force in the course of
13
making an arrest, investigatory stop, or other ‘seizure’ ... are properly analyzed under the Fourth
14
Amendment’s ‘objective reasonableness’ standard.” Graham v. Connor, 490 U.S. 386, 388 (1989); see
15
also Chew v. Gates, 27 F.3d 1432, 1440 (9th Cir. 1994) (“the use of force to effect an arrest is subject
16
to the Fourth Amendment’s prohibition on unreasonable seizures”). The Supreme Court explained,
17
18
19
As in other Fourth Amendment contexts . . . the “reasonableness” inquiry in an excessive
force case is an objective one: the question is whether the officers’ actions are
“objectively reasonable” in light of the facts and circumstances confronting them, without
regard to their underlying intent or motivation. An officer’s evil intentions will not make
a Fourth Amendment violation out of an objectively reasonable use of force; nor will an
officer’s good intentions make an objectively unreasonable use of force constitutional.
20
21
Graham, 490 U.S. at 396-97 (internal citations omitted).
22
Applying this standard, the fact-finder considers “the totality of the circumstances and . . .
23
whatever specific factors may be appropriate in a particular case.” Bryan v. MacPherson, 630 F.3d 805,
24
826 (9th Cir. 2010). Thus, factors to be considered in evaluating whether the force used was reasonable
25
include “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety
26
of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by
27
flight.” Graham, 490 U.S. at 396 (citing Tennessee v. Garner, 471 U.S. 1, 8-9 (1985). Further, the fact
28
finder may consider “whether officers administered a warning, assuming it was practicable.” George v.
4
1
Morris, 736 F.3d 829, 837-38 (9th Cir. 2013) (citing Scott v. Harris, 550 U.S. 372, 381-82 (2007).
2
Ultimately, the “reasonableness” of the actions “must be judged from the perspective of a reasonable
3
officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396.
4
2.
Fourteenth Amendment Violations
5
Where a plaintiff has not been convicted by a crime, but has been placed under arrest, “his
6
rights derive from the due process clause rather than the Eighth Amendment’s protection against cruel
7
and unusual punishment.” Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002).
8
Nevertheless, with issues related to health and safety, “the due process clause imposes, at a minimum,
9
the same duty the Eighth Amendment imposes.” Gibson, 290 F.3d at 1187. Therefore, the requisite
10
standard of care afforded Plaintiff under the Fourteenth Amendment may be determined by applying
11
the standards set forth by the Eighth Amendment, which proscribes “unnecessary and wanton infliction
12
of pain,” including “deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97,
13
104 (1976) (internal citation and quotation marks omitted).
14
To establish a claim of inadequate medical care, a plaintiff must show “acts or omissions
15
sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle, 429 U.S. at
16
106. The Ninth Circuit explained: “First, the plaintiff must show a serious medical need by
17
demonstrating that failure to treat a prisoner’s condition could result in further significant injury or the
18
unnecessary and wanton infliction of pain. Second, the plaintiff must show the defendant’s response to
19
the need was deliberately indifferent.” Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012)
20
(quoting Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)).
21
22
a.
Serious medical need
A serious medical need exists “if the failure to treat the prisoner’s condition could result in
23
further significant injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin v. Smith, 974
24
F.2d 1050, 1059 (9th Cir. 1991) (overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d
25
1133, 1136 (9th Cir. 1997)) (quoting Estelle, 429 U.S. at 104). Indications of a serious medical need
26
include "[t]he existence of an injury that a reasonable doctor or patient would find important and
27
worthy of comment or treatment; the presence of a medical condition that significantly affects an
28
individual’s daily activities; or the existence of chronic and substantial pain.” Id. at 1059-60 (citing
5
1
Wood v. Housewright, 900 F.2d 1332, 1337-41 (9th Cir. 1990)).
b.
2
3
Deliberate indifference
In addition to establishing the existence of a serious medical need, a plaintiff must show the
4
officer responded to that need with deliberate indifference. Farmer, 511 U.S. at 834. In clarifying the
5
culpability required for “deliberate indifference,” the Supreme Court held,
6
7
8
9
[A] prison official cannot be found liable under the Eighth Amendment for denying an
inmate humane conditions of confinement unless the official knows of and disregards an
excessive risk to inmate health or safety; the official must both be aware of facts from
which the inference could be drawn that a substantial risk of serious harm exits, and he
must also draw that inference.
Farmer, 511 U.S. at 837. Therefore, a defendant must be “subjectively aware that serious harm is
10
likely to result from a failure to provide medical care.” Gibson, 290 F.3d 1175, 1193 (9th Cir. 2002)
11
(emphasis omitted). When a defendant should have been aware of the risk of substantial harm but,
12
indeed, was not, “then the person has not violated the Eighth Amendment, no matter how severe the
13
risk.” Id. at 1188.
14
Where deliberate indifference relates to medical care, “[t]he requirement of deliberate
15
indifference is less stringent . . . than in other Eighth Amendment contexts because the responsibility to
16
provide inmates with medical care does not generally conflict with competing penological concerns.”
17
Holliday v. Naku, 2009 U.S. Dist. LEXIS 55757, at *12 (E.D. Cal. June 26, 2009), citing McGuckin,
18
974 F.2d at 1060. Claims of negligence or medical malpractice are insufficient to claim deliberate
19
indifference. Id. at 394; Toguchi, 391 F.3d at 1057. Generally, deliberate indifference to serious
20
medical needs may be manifested in two ways: “when prison officials deny, delay, or intentionally
21
interfere with medical treatment, or . . . by the way in which prison physicians provide medical care.”
22
Hutchinson v. United States, 838 F.2d 390, 393-94 (9th Cir. 1988).
23
3.
Bane Act Violation
24
The Bane Act provides a cause of action for interference “by threats, intimidation, or coercion”
25
or attempted interference, “with the exercise or enjoyment by any individual or individuals of rights
26
secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or
27
laws of this state.” Cal. Civ.Code § 52.1(a); Venegas v. County of Los Angeles, 32 Cal.4th 820, 843
28
(2004) (“Civil Code section 52.1 does not extend to all ordinary tort actions because its provisions are
6
1
limited to threats, intimidation, or coercion that interferes with a constitutional or statutory right.”). To
2
state a claim under 52.1, the plaintiff must demonstrate that the interference with the constitutional
3
right was accompanied by an act of coercion. Jones v. Kmart, 17 Cal.4th 329, 334, 70 Cal.Rptr.2d 844,
4
949 P.2d 941 (1998) (“[S]ection 52.1 does require an attempted or completed act of interference with a
5
legal right, accompanied by a form of coercion.”)
6
In Bender v. County of Los Angeles, 217 Cal.App.4th 968, 977-978 (2013), the court held that
7
where an arrest is unlawful and excessive force is used, a claim is stated under California Civil Code
8
section 52.1. Thus, if a plaintiff establishes the elements for a claim for an unlawful arrest and
9
excessive force, he may establish a claim for the violation of the Bane Act.1
10
4.
False Arrest and/or Imprisonment
11
False imprisonment is defined by statute as “the unlawful violation of the personal liberty of
12
another.” Cal. Pen. Code. § 236. The tort is defined identically, and consists of the “nonconsensual,
13
intentional confinement of a person, without lawful privilege, for an appreciable length of time,
14
however short.” Molko v. Holy Spirit Assoc., 46 Cal.3d 1092, 1123 (1988). “The only mental state
15
required to be shown for false imprisonment is the intent to confine, or to create a similar intrusion.”
16
Fermino v. FedCo. Inc., 7 Cal.4th 701, 716 (1994).
17
To succeed on a claim for false imprisonment, Plaintiff must state facts showing either that he
18
was unlawfully arrested and then imprisoned, or that an unreasonable delay occurred in presenting the
19
arrestee before a judge. City of Newport Beach v. Sasse, 9 Cal.App.3d 803, 810 (1970). However,
20
there is no civil liability for an officer “acting within the scope of his or her authority, for false arrest
21
or false imprisonment arising out of any arrest” when (1) the arrest was lawful, or the officer had
22
reasonable cause to believe the arrest was lawful at the time of the arrest, or (2) the arrest was made
23
pursuant to a charge made, upon reasonable cause, of the commission of a felony by the person to be
24
25
26
27
28
1
The court was careful to exclude from its analysis whether a Bane Act violation can be demonstrated when the
arrest is lawful but excessive force is used. Bender relied upon Shoyoye v. County of Los Angeles, 203 Cal.App.4th 947,
956 (2012), which considered whether a Bane Act violation can be founded only on a constitutional violation which, in and
of itself, is inherently coercive. In rejecting that this is sufficient to state a claim under the Bane Act, Shoyoye held,
“[W]here coercion is inherent in the constitutional violation alleged . . . the statutory requirement of ‘threats, intimidation,
or coercion’ is not met. The statute requires a showing of coercion independent from the coercion inherent in the wrongful
detention itself.” Id. at 959.
7
1
arrested. Cal. Pen. Code. § 847.
2
5.
Assault
3
To establish claim of assault under California law, a plaintiff must show: (1) that the defendant
4
intended or threatened to cause offensive contact (2) the plaintiff believed himself to be in imminent
5
danger, (3) the contact occurred against the plaintiff’s will, (4) the conduct caused harm, and (5) the
6
defendant’s conduct substantially caused the harm. Yun Hee So v. Sook Ja Shin, 151 Cal.Rptr.3d 257,
7
269 (2013).
8
6.
Battery
9
Under California law, a battery occurs when: “(1) [a] defendant intentionally performed an act
10
that resulted in a harmful or offensive contact with the plaintiff's person; (2) [the] plaintiff did not
11
consent to the contact; and (3) the harmful or offensive contact caused injury, damage, loss or harm to
12
[the] plaintiff.” Brown v. Ransweiler, 89 Cal.Rptr.3d 801, 811 (2009). Significantly, this claim is
13
analogous to a claim of the excessive use of force. Brown, 89 Cal.Rptr.3d at 811. Thus, in a claim of
14
battery against an officer, a plaintiff must allege that the officer used unreasonable force. Id.; see also
15
Edson v. City of Anaheim, 63 Cal. App. 4th 1269, 1272 (1998).
16
7.
Intentional Infliction of Emotional Distress
17
Under California law, claim for intentional infliction of emotional distress requires a plaintiff to
18
show: (1) outrageous conduct by the defendants (2) who intended to cause or recklessly disregarded the
19
probability of causing emotional distress, (3) and the defendants’ actions were the actual and proximate
20
cause (4) of Plaintiff’s severe emotional suffering. Austin v. Terhune, 367 F.3d 1167, 1172 (9th Cir.
21
2004) (citing Brooks v. United States, 29 F. Supp. 2d 613, 617 (N.D. Cal. 1998)). Outrageous conduct
22
is demonstrated when a “defendant’s conduct was ‘so extreme as to exceed all bounds of that usually
23
tolerated in a civilized society.’” Van Horn v. Hornbeak, 2009 U.S. Dist. LEXIS 16134, at *8 (E.D.
24
Cal. Feb. 18, 2009) (quoting Ricard v. Pacific Indemnity Co., 132 Cal. App. 3d 886, 895 (1982)).
25
8.
Negligence
26
In general, to succeed on a claim for negligence, Plaintiff “must establish four required
27
elements: (1) duty; (2) breach; (3) causation; and (4) damages.” Ileto v. Glock, Inc., 349 F.3d 1191,
28
1203 (9th Cir. 2003). Importantly, “[t]o prevail in an action for negligence, the plaintiff must show that
8
1
the defendant owed a duty to the plaintiff.” See John B. v. Superior Court, 38 Cal. 4th 1177, 1188
2
(2006) (emphasis added).
3
9.
Municipal Liability
4
As a general rule, a local government entity may not be held responsible for the acts of its
5
employees under a respondeat superior theory of liability. Monell v. Dep’t of Soc. Servs., 436 U.S.
6
658, 690 (1978). Rather, a local government entity may only be held liable if it inflicts the injury of
7
which a plaintiff complains. Gibson, 290 F.3d at 1185. Thus, a government entity may be sued under
8
Section 1983 when a governmental policy or custom is the cause of a deprivation of federal rights.
9
Monell, 436 U.S. at 694.
10
To establish liability, Plaintiff must show: (1) he was deprived of a constitutional right; (2) the
11
County of Kern had a policy; (3) this policy amounted to deliberate indifference of his constitutional
12
right; and (4) the policy “was the moving force behind the constitutional violation.” See Oviatt v.
13
Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (quoting City of Canton, Ohio v. Harris, 489 U.S. 378,
14
388 (1989)); see also Monell, 436 U.S. at 690-92. There are three methods by which a policy or
15
custom of a government may be demonstrated when:
16
17
18
19
20
(1) A longstanding practice or custom…constitutes the standard operating procedure of
the local government entity;
(2) The decision-making official was, as a matter of law, a final policymaking authority
whose edicts or acts may fairly be said to represent official policy in the area of
decision; or
(3) An official with final policymaking authority either delegated that authority to, or
ratified the decision of, a subordinate.
21
Pellum v. Fresno Police Dep’t, 2011 U.S. Dist. LEXIS 10698, at *8 (quoting Menotti v. City of Seattle,
22
409 F.3d 1113, 1147 (9th Cir. 2005)).
23
To establish deliberate indifference, “the plaintiff must show that the municipality was on actual
24
or constructive notice that its omission would likely result in a constitutional violation.” Gibson, 290
25
F.3d at 1186 (citing Farmer, 511 U.S. at 841). A policy amounts to deliberate indifference when “the
26
need for more or different action is so obvious, and the inadequacy of the current procedure so likely to
27
result in the violation of constitutional rights, that the policymakers can reasonably be said to have been
28
deliberately indifferent to the need.” Mortimer v. Baca, 594 F.3d 714, 722 (9th Cir. 2010) (citing
9
1
Oviatt, 954 F.2d at 1477-78); accord Canton, 489 U.S. at 390. Further, a plaintiff must “establish more
2
than one incident to create a patterned and pervasive violation.” Jaquez v. County of Sacramento, 2011
3
U.S. Dist. LEXIS 11165, at *6 (E.D. Cal. Feb. 1, 2011) (citing Oklahoma v. Tuttle, 471 U.S. 808, 824
4
(1985)); see also Menotti, 409 F.3d at 1147 (a policy may be inferred if there is evidence of repeated
5
constitutional violations for which officers were not reprimanded). As a result, “[l]iability for improper
6
custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of
7
sufficient duration, frequency and consistency that the conduct has become a traditional method of
8
carrying out that policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996).
9
10
10.
Punitive Damages
Plaintiff has the burden of proving what, if any, punitive damages should be awarded by a
11
preponderance of the evidence. NINTH CIRCUIT MODEL CIVIL JURY INSTRUCTIONS § 5.5
12
(2009). The jury must find that the defendant’s conduct is “motivated by evil motive or intent, or . . .
13
involves reckless or callous indifference to the federally protected rights of others.” Smith v. Wade, 461
14
U.S. 30, 56 (1986); see also Larez v. Holcomb, 16 F.3d 1513, 1518 (9th Cir. 1994).
15
11.
Qualified Immunity
16
Qualified immunity protects government officials from “liability for civil damages insofar as
17
their conduct does not violate clearly established statutory or constitutional rights of which a reasonable
18
person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity
19
“balances two important interests - the need to hold public officials accountable when they exercise
20
power irresponsibly and the need to shield officials from harassment, distraction, and liability when
21
they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231, (2009).
22
The threshold inquiry is whether the facts alleged, when taken in the light most favorable to the
23
plaintiff, show the defendant violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001).
24
The right must be so “clearly established” that “a reasonable official would understand that what he is
25
doing violates that right.” Id. at 202. Thus, the Ninth Circuit summarized the sequential test for
26
qualified immunity as: “(1) identification of the specific right being violated; (2) determination of
27
whether the right was so clearly established as to alert a reasonable officer to its constitutional
28
parameters; and (3) a determination of whether a reasonable officer would have believed that the policy
10
1
or decision in question was lawful.” McDade v. West, 223 F.3d 1135, 1142 (9th Cir. 2000).
2
H.
None
3
4
ABANDONDED ISSUES
I.
WITNESSES2
The following is a list of witnesses that the parties expect to call at trial, including rebuttal and
5
6
impeachment witnesses. NO WITNESS, OTHER THAN THOSE LISTED IN THIS SECTION,
7
MAY BE CALLED AT TRIAL UNLESS THE PARTIES STIPULATE OR UPON A SHOWING
8
THAT THIS ORDER SHOULD BE MODIFIED TO PREVENT “MANIFEST INJUSTICE.” Fed. R.
9
Civ. P. 16(e); Local Rule 281(b)(10).
10
Plaintiffs’ Witness List:
11
1.
Denise Portugal
12
2.
Babak Farivar
13
3.
Maureen Martin
14
4.
Ramon Snyder (on the list twice, so that is why there is one less witness in the order)
15
5.
Ruby Skinner
16
6.
Dan William Erickson
17
7.
Ashutosh Pathak
18
8.
Benjamin Chen
19
9.
John Tran
20
10.
Rajeev Krishan
21
11.
Roger Clark
22
12.
Elvia Cota
23
13.
Hector Cota
24
14.
Trinity Cota
25
15.
Evelen Cota
26
27
28
2
At the hearing, counsel agreed that medical records and training records may be introduced without an authenticating
witness. Counsel SHALL meet and confer to determine whether they will require a custodian of records for any other
records.
11
1
16.
Ron Edler
2
17.
Rick Montoya
3
18.
Ernie Montoya
4
19.
Eleazar Blannco
5
20.
Ernesto Alvarado
6
21.
John Hamish
7
22.
Jaime Cota
8
23.
Adrew Romanini
9
24.
Adrian Olmos
10
25.
Kenneth Smith
11
26.
Guadalupe Rangle
12
27.
Hany Aziz
13
Defendant’s Witness List:
14
1.
Deputy Ernest Alvarado
15
2.
John Hamish
16
3.
Curtis J. Cope
17
4.
Phillipe Tampinco
18
5.
Peter Longero
19
6.
Sgt. William Keene
20
7.
Nurse Fulkerson, R.N.
21
8.
Kern County Nurse Edra
22
9.
Jose Guadalupe Rangel
23
10.
Eleazar Blanco
24
11.
Sgt. Ken Smith
25
12.
Sgt. Lombera
26
13.
Sgt. Olmos
27
14.
Deputy Romanini
28
15.
Any witnesses identified by Plaintiffs.
12
1
16.
Dr. Pathak, M.D.; Dr. Tran, M.D.; Dr. Dr. Chen, M.D.
2
17.
Jaime Cota
3
18.
Richard Gonzales, Investigator, G4S
4
J.
EXHIBITS, SCHEDULES AND SUMMARIES
5
The following is a list of documents or other exhibits that the parties expect to offer at trial.
6
NO EXHIBIT, OTHER THAN THOSE LISTED IN THIS SECTION, MAY BE ADMITTED
7
UNLESS THE PARTIES STIPULATE OR UPON A SHOWING THAT THIS ORDER SHOULD BE
8
MODIFIED TO PREVENT “MANIFEST INJUSTICE.” Fed. R. Civ. P. 16(e); Local Rule 281(b)(11).
9
Plaintiff’s Exhibits
10
1.
Records and files from Curtis Cope
11
2.
Medical Records
12
3.
Maps of location
13
4.
Photos of Plaintiff and location of incident
14
5.
Audio and video recordings
15
6.
Police Report
16
7.
Any Exhibits Listed by Defendants
17
Defendants’ Exhibits
18
1.
Incident report(s) prepared by Deputy Alvarado
19
2.
Photographs of plaintiff’s residence/scene
20
3.
Photographs of plaintiff after the arrest incident
21
4.
Sheriff’s jail video depicting Plaintiff’s arrival in Parking/Holding, Receiving and
Booking, and custody of Plaintiff
22
23
5.
Defendant’s expert witness exhibits
24
6.
Post Learning Domains
25
7.
Sheriff Policies and Procedures
26
8.
Deputy Alvarado training records
27
9.
CJIIS records regarding Plaintiff’s custody on December 4-5, 2011
28
10.
Photographs of Plaintiff’s injuries
13
1
11.
Screening Questionnaire
2
12.
Audio cd of dispatch
3
13.
Event Chronology
4
14.
Sheriff documents related to training requirements
5
15.
Plaintiff’s medical records
6
16.
Any documents disclosed during discovery erroneously omitted herein.
7
On or before April 10, 2015, counsel SHALL meet and confer to discuss any disputes related
8
to the above listed exhibits and to pre-mark and examining each other’s exhibits.
1.
9
At the exhibit conference, counsel will determine whether there are objections to the
10
admission of each of the exhibits and will prepare separate indexes; one listing joint exhibits, one
11
listing Plaintiff’s exhibits and one listing Defendant’s exhibits. In advance of the conference, counsel
12
must have a complete set of their proposed exhibits in order to be able to fully discuss whether
13
evidentiary objections exist. Thus, any exhibit not previously provided in discovery SHALL be
14
provided at least five court days in advance of the exhibit conference.
2.
15
At the conference, counsel shall identify any duplicate exhibits, i.e., any document
16
which both sides desire to introduce into evidence. These exhibits SHALL be marked as a joint exhibit
17
and numbered as directed above. Joint exhibits SHALL be admitted into without further foundation.
All Joint exhibits will be pre-marked with numbers preceded by the designation “JT” (e.g. JT/1,
18
19
JT/2, etc.). Plaintiff’s exhibits will be pre-marked with numbers beginning with 1 by the designation
20
PX (e.g. PX1, PX2, etc.). Defendant’s exhibits will be pre-marked with numbers beginning with 501
21
preceded by the designation DX (e.g. DX501, DX502, etc.). The Parties SHALL number each page of
22
any exhibit exceeding one page in length (e.g. PX1-1, PX1-2, PX1-3, etc.).
If originals of exhibits are unavailable, the parties may substitute legible copies. If any
23
24
document is offered which is not fully legible, the Court may exclude it from evidence.
Each joint exhibit binder shall contain an index which is placed in the binder before the
25
26
exhibits. The index shall consist of a column for the exhibit number, one for a description of the
27
exhibit and one column entitled “Admitted in Evidence” (as shown in the example below).
28
///
14
INDEX OF EXHIBITS
1
2
3
EXHIBIT#
ADMITTED
IN EVIDENCE
DESCRIPTION
4
3.
As to any exhibit which is not a joint exhibit but to which there is no objection to its
5
introduction, the exhibit will likewise be appropriately marked, i.e., as PX1, or as DX501 and will be
6
indexed as such on the index of the offering party. Such exhibits will be admitted upon introduction
7
and motion of the party, without further foundation.
8
4.
Each exhibit binder shall contain an index which is placed in the binder before the
9
exhibits. Each index shall consist of the exhibit number, the description of the exhibit and the three
10
columns as shown in the example below.
11
INDEX OF EXHIBITS
12
13
EXHIBIT#
DESCRIPTION
ADMITTED
IN EVIDENCE
OBJECTION
FOUNDATION
OTHER
OBJECTION
14
5.
15
On the index, as to exhibits to which the only objection is a lack of foundation, counsel
will place a mark under the column heading entitled “Admissible but for Foundation.”
16
6.
On the index, as to exhibits to which there are objections to admissibility that are not
17
based solely on a lack of foundation, counsel will place a mark under the column heading entitled
18
“Other Objections.”
19
After the exhibit conference, each counsel SHALL develop four complete, legible sets of
20
exhibits. Counsel SHALL deliver three sets of their exhibit binders to the Courtroom Clerk and
21
provide one set to opposing counsel, no later than 4:00 p.m., on May 1, 2015. Counsel SHALL
22
determine which of them will also provide three sets of the joint exhibits to the Courtroom Clerk.
23
7.
The Parties SHALL number each page of any exhibit exceeding one page in length.
24
K.
25
26
DISCOVERY DOCUMENTS
The following is a list of discovery documents – portions of depositions, answers to
interrogatories, and responses to requests for admissions – that the parties expect to offer at trial.
27
NO DISCOVERY DOCUMENT, OTHER THAN THOSE LISTED IN THIS SECTION, MAY BE
28
15
1
ADMITTED UNLESS THE PARTIES STIPULATE OR UPON A SHOWING THAT THIS ORDER
2
SHOULD BE MODIFIED TO PREVENT “MANIFEST INJUSTICE.” Fed. R. Civ. P. 16(e); Local
3
Rule 281(b)(12).
4
Plaintiff anticipates offering the following discovery documents at trial:
5
1.
Responses to requests for production
6
2.
Documents produced by persons most knowledgeable
7
3.
Amended responses to request for production
8
4.
Any and all deposition transcripts
9
Defendant anticipates offering the following discovery documents at trial:
1.
10
11
The depositions taken in this matter for all purposes allowed under the Federal Rules of
Civil Procedure and Evidence.
If either party wishes to rely upon discovery documents or deposition transcripts at trial, they
12
13
SHALL lodge the original discovery requests and responses and/or the original or certified copy of the
14
pertinent transcripts, no later than May 1, 2015. If the proffering party wishes the jury to view the
15
discovery document, only the request and response at issue may be visible on the page(s) and all
16
extraneous material must be redacted or the request and the response re-typed on a clean page.3
17
L.
No further discovery is sought by either party.
18
19
20
FURTHER DISCOVERY OR MOTIONS
M.
MOTIONS IN LIMINE
Any party may file motions in limine. The purpose of a motion in limine is to establish in
21
advance of the trial that certain evidence should not be offered at trial. “Although the Federal Rules of
22
Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the
23
district court’s inherent authority to manage the course of trials.” Luce v. United States, 469 U.S. 38,
24
40 n. 2 (1984); Jonasson v. Lutheran Child and Family Services, 115 F. 3d 436, 440 (7th Cir. 1997).
25
The Court will grant a motion in limine, and thereby bar use of the evidence in question, only if the
26
moving party establishes that the evidence clearly is not admissible for any valid purpose. Id.
27
28
3
Counsel should have at least two extra copies of the redacted version for review by the Court and opposing
counsel before publication is allowed.
16
In advance of filing any motion in limine, counsel SHALL meet and confer to determine
1
2
whether they can resolve any disputes and avoid filing motions in limine. Along with their
3
motions in limine, the parties SHALL file a certification demonstrating counsel have in good faith
4
met and conferred and attempted to resolve the dispute. Failure to provide the certification may
5
result in the Court refusing to entertain the motion.
Any motions in limine must be served on the other party and filed with the Court by April 1,
6
7
2015. The motion must clearly identify the nature of the evidence that the moving party seeks to
8
prohibit the other side from offering at trial. Any opposition to the motion must be served on the other
9
party, and filed with the Court by April 17, 2015. The Court sets a hearing on the motions in limine on
10
April 28, 2015, at 10:30 a.m. Appearances via Courtcall are authorized.
The parties are reminded they may still object to the introduction of evidence during trial.
11
12
N.
None at this time.
13
14
O.
AMENDMENTS/ DISMISSALS
None at this time.
15
16
STIPULATIONS
P.
SETTLEMENT NEGOTIATIONS
The parties report that they engaged in mediation on January 23, 2015, and the matter was not
17
18
resolved. (Doc. 24 at 13.) However, Defendants will present a mediator’s proposal to the Kern
19
County Board of Supervisors on February 10, 2015.
20
Q.
None
21
22
R.
S.
27
28
APPOINTMENT OF IMPARTIAL EXPERTS
None requested.
25
26
SEPARATE TRIAL OF ISSUES
None.
23
24
AGREED STATEMENT
T.
ATTORNEYS’ FEES
If successful at trial, Plaintiff will be seeking attorney fees pursuant to 42 U.S.C§ 1988(b),
California Civil Code Section 52.1(h), and California Government Code Sections 820(a) and 815.2(a).
17
1
Similarly, if successful, Defendants will seek an award of attorney fees and costs. (Doc. 24 at 14.)
2
U.
TRIAL DATE/ ESTIMATED LENGTH OF TRIAL
Jury trial is set for May 13, 2015, at 8:30 a.m. before the Honorable Jennifer L. Thurston at the
3
4
United States Courthouse, 510 19th Street, Bakersfield, California. Trial is expected to last no longer
5
than 4-7 days.
6
V.
TRIAL PREPARATION AND SUBMISSIONS
7
1.
8
The parties are relieved of their obligation under Local Rule 285 to file trial briefs. If any party
9
wishes to file a trial brief, they must do so in accordance with Local Rule 285 and be filed on or before
10
Trial Briefs
May 8, 2015.
11
2.
12
The parties are required to file their proposed voir dire questions, in accordance with Local
13
Jury Voir Dire
Rule 162.1, on or before May 8, 2015.
14
3.
15
The parties SHALL file a joint non-argumentative, brief statement of the case which is
16
Statement of the Case
suitable for reading to the jury at the outset of jury selection on or before May 8, 2015.
17
4.
Jury Instructions & Verdict Form
18
The parties shall serve, via e-mail or fax, their proposed jury instructions in accordance with
19
Local Rule 163 and their proposed verdict form on one another no later than April 10, 2015. The
20
parties shall conduct a conference to address their proposed jury instructions and verdict form no later
21
than April 24, 2015. At the conference, the parties SHALL attempt to reach agreement on jury
22
instructions and verdict form for use at trial. The parties shall file all agreed-upon jury instructions and
23
verdict form no later than May 1, 2015, and identify such as the agreed-upon jury instructions and
24
verdict forms. At the same time, the parties SHALL lodge via e-mail a copy of the joint jury
25
instructions and joint verdict form (in Word format) to JLTOrders@caed.uscourts.gov.
26
If and only if, the parties after genuine, reasonable and good faith effort cannot agree upon
27
certain specific jury instructions and verdict form, the parties shall file their respective proposed
28
(disputed) jury instructions and proposed (disputed) verdict form no later than May 1, 2015, and
18
1
identify such as the disputed jury instructions and verdict forms. At the same time, the parties
2
SHALL lodge via e-mail, a copy of his/their own (disputed) jury instructions and proposed (disputed)
3
verdict form (in Word format) to JLTOrders@caed.uscourts.gov.
4
In selecting proposed instructions, the parties shall use Ninth Circuit Model Civil Jury
5
Instructions or California’s CACI instructions to the extent possible. All jury instructions and verdict
6
forms shall indicate the party submitting the instruction or verdict form (i.e., joint, plaintiff’s,
7
defendant’s, etc.), the number of the proposed instruction in sequence, a brief title for the instruction
8
describing the subject matter, the complete text of the instruction, and the legal authority supporting
9
the instruction. Each instruction SHALL be numbered.
10
W.
OBJECTIONS TO PRETRIAL ORDER
11
Any party may, within 10 days after the date of service of this order, file and serve written
12
objections to any of the provisions set forth in this order. Such objections shall clearly specify the
13
requested modifications, corrections, additions or deletions.
14
X.
None.
15
16
17
MISCELLANEOUS MATTERS
Y.
COMPLIANCE
Strict compliance with this order and its requirements is mandatory. All parties and their
18
counsel are subject to sanctions, including dismissal or entry of default, for failure to fully comply
19
with this order and its requirements.
20
21
22
23
IT IS SO ORDERED.
Dated:
February 2, 2015
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
24
25
26
27
28
19
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?