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)

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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 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 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

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