Gonzalez v. City of Bakersfield

Filing 51

PRETRIAL ORDER, signed by Magistrate Judge Jennifer L. Thurston on 7/5/2017. Motions in Limine: Filed by 7/28/2017; Opposition by 8/4/2017; Hearing set for 8/14/2017 at 09:30 AM in Bakersfield, 510 19th Street before Magistrate Judge Jennifer L. Thurston. Trial Submissions due by 8/11/2017. Jury Trial confirmed for 8/21/2017 at 08:30 AM. (Hall, S)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ARTURO GONZALEZ, 12 Plaintiff, 13 14 v. CITY OF BAKERSFIELD, et al., 15 Defendants. 16 17 18 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:16-cv-00107 – JLT PRETRIAL ORDER Deadlines: Motions in Limine Filing: 7/2817 Oppositions to Motions in Limine: 8/4/17 Hearing on Motions in Limine: 8/14/17 Trial Submissions: 8/11/17 Jury trial: 8/21/2017 at 8:30 a.m., 4-5 days estimate Arturo Gonzalez asserts that Bakersfield police officers are liable for violations of his civil 19 rights and California law, including wrongful detention or arrest, excessive force, battery, negligence, 20 and for violating California’s Bane Act. Defendants contend the actions taken were lawful and did not 21 violate Plaintiff’s civil rights. 22 A. 23 JURISDICTION/ VENUE This action includes causes of action pursuant to 42 U.S.C § 1983, and jurisdiction is based 24 upon 28U.S.C §§ 1331 and 1343. In addition, the events that gave rise to this action occurred in 25 Bakersfield, California. Accordingly, venue is proper in the United States District Court for the 26 Eastern District of California sitting in Bakersfield. See 28 U.S.C. § 1391. 27 B. 28 JURY TRIAL The parties demanded a jury trial in this matter. (Doc. 1 at 21; Doc. 8 at 12) 1 1 C. 1. 2 3 UNDISPUTED FACTS Plaintiff’s claims arise out of an incident that took place in the City of Bakersfield, State of California, and within this judicial district. 4 2. Plaintiff is suing in his individual capacity and seeks damages. 5 3. The Defendant Officers were acting under color of law within the course and scope of 6 their duties as officers for the City of Bakersfield. 7 D. DISPUTED FACTS 8 All other facts in this case remain in dispute including but not limited to: 9 1. Whether the seizure of Plaintiff constituted a detention or an arrest; 10 2. Whether, as either a detention or an arrest, the seizure of Plaintiff was justified; 11 3. Whether Defendants Barrier, Knott, and/or Orozco used excessive or unreasonable force; 12 4. Whether Defendant Barrier, Knott, and/or Orozco were negligent; 13 5. Whether each of the Defendants integrally participated in or failed to intervene in the 14 wrongful conduct of the others; 6. 15 16 The nature and extent of Plaintiff’s damages, including economic and non-economic damages, both past and future; 17 7. Whether punitive damages should be imposed and, if so, the amount; 18 8. Whether a statutory penalty should be imposed under the Bane Act; 19 9. Whether the Defendant Officers met to form a tactical plan regarding their check the 20 welfare of Arturo Gonzalez Jr.; 10. 21 22 backwards, keeping his hands over his head, getting on his knees, etc. 11. 23 24 Whether the plaintiff came outside and followed Officer instructions regarding walking Whether the Defendant Officers knew that Plaintiff was not Arturo Gonzalez Jr. at the time of their first contact or at what point they knew or should have known; 12. 25 Whether Plaintiff was detained and/or arrested and if so, whether such detainment and/or 26 arrest was reasonable and lawful and whether such detainment and/or arrest was justified by probable 27 cause; 28 13. Whether the use of force by each Officer Defendant was reasonable and lawful; 2 14. 1 2 detention/arrest and/or the use of force; 15. 3 4 Whether Defendant Carruesco failed to intervene and/or was an integral participant in the Whether the plaintiff was harmed as a result of any alleged detention, arrest, and/or use of force by Defendants and the nature and extent of any such injuries; 5 16. 6 punitive damages; 7 17. Whether Defendant Officers are entitled to immunity under federal and/or state law; and 8 18. Whether any of the other affirmative defenses raised by Defendants in their Answer to 9 10 the Operative Complaint act to bar or limit liability and/or damages sought by Plaintiff in this action. E. 13 14 15 DISPUTED LEGAL ISSUES None 11 12 Whether the conduct of each Officer Defendant was such as to warrant the imposition of F. DISPUTED EVIDENTIARY ISSUES Both parties intend to file motions in limine regarding the evidence to be used at trial. Plaintiff intends to file motions on the following subjects: 1. To exclude all information not known to the officers at the time of the incident, 16 including all information about Plaintiff, information about Plaintiff’s son that was not actually known 17 to the officers at the time, and information subsequently discovered or events that took place 18 subsequent to the incident; 19 2. To exclude any reference to gangs or drugs; 20 3. To exclude the 9-1-1 calls themselves, which the defendant officers did not hear prior 21 22 23 to the beating; 4. To exclude allegations that Plaintiff’s son stated that “he was in possession of a grenade, a rocket launcher, five friends and an AK-47;” 24 5. To preclude or limit testimony about officers’ subjective states of mind, beliefs, or fears; 25 6. To exclude references to Plaintiff’s race, immigration status, or his neighborhood, 26 including both direct and indirect appeals to prejudice, such as allegations that it is a “gang 27 neighborhood” or a “high-crime area.” As to Plaintiff’s race, counsel agree that his race has no 28 pertinence to the issues in the case. Likewise, because Plaintiff does not seek damages for lost wages, 3 1 counsel agree that his immigration status. Thus, the Court ORDERS that this evidence will not be 2 allowed.1 3 7. To exclude certain opinions of Defendants’ police practices expert; 4 8. To exclude certain opinions and testimony by Defendants’ medical expert; and 5 9. To address the qualified immunity and comparative negligence defenses, to establish 6 how these defenses will (and will not) be handled at trial and in front of the jury. To the extent that 7 qualified immunity is raised at trial, the immunity is a question of law for the Court and this defense 8 will not be presented to the jury. If there are fact questions that must be determined by the jury before 9 qualified immunity may be considered, either side may propose special interrogatories for the jury to 10 decide. If they choose to do so, they SHALL file the special interrogatories to the jury at the same 11 time as their verdict form (as set forth below). 12 G. SPECIAL FACTUAL INFORMATION Plaintiff’s Special Factual Contentions: 13 1. 14 The date, place and general nature of the incident: This is a civil rights and personal injury 15 lawsuit involving a videotaped seizure and beating of Arturo Gonzalez by the defendant police officers. 16 Plaintiff suffered serious injuries to his back and shoulder. The officers claim that they charged, tackled, and beat Plaintiff based on the mistaken belief that 17 18 Plaintiff was his son, who is also named Arturo Gonzalez. From Plaintiff’s perspective, it was an 19 unprovoked attack on an innocent disabled retiree who had come outside to try to help the officers and 20 who had done nothing wrong. Plaintiff contends that the officers’ alleged mistake as to his identity was 21 not reasonable, since he wore a gray beard, since he was obviously not in his thirties, and since he told 22 the officers who he was. The officers were told over the radio that Plaintiff’s son was not home and 23 that Plaintiff was stepping out of the house. Even if the person the officers encountered had been 24 Plaintiff’s son, there is no justification for attacking and beating a person who is cooperating and 25 complying with all instructions. Plaintiff contends that the seizure and beating of Plaintiff violated 26 27 28 1 However, counsel reported that Plaintiff speaks with an accent and, of course, his name implies that he is of Mexican descent. What is observable to the jury cannot be excluded, of course, but his ancestry has no bearing on the issues to be decided. 4 1 Plaintiff’s rights under state and federal law. The incident took place at approximately 1:45-2:15 a.m. 2 on January 20, 2015 near 4800 Chinta Drive in Bakersfield. 3 The particular acts, omissions, and conditions constituting the basis for liability: The officers 4 admit that they were dispatched on a “check the welfare” call, which means, in Defendant Barrier’s 5 words: “Check the welfare is when there's an individual who appears to need assistance due to some 6 type of either mental disability or physical disability or rambling and so forth.” The officers were told 7 that a person had called 9-1-1 and was “rambling incoherently and not making much sense.” The 8 officers did not actually hear the call. The caller’s cellphone had been traced to an approximate 9 latitude/longitude location. 10 The officers received information that the “subject should be identified as Arturo Gonzalez, 4-7- 11 82,” indicating a person who was in the area of 33 years old. The dispatched officers were also 12 transmitted information to the effect: “Officer safety, this RP made 422 to ambush law enforcement 13 past date,” meaning that the caller had made past threats against the police (not on the night in 14 question). No other information was dispatched to the officers about the caller. 15 The officers briefly stopped at a nearby location to discuss a “tactical plan.” One possible 16 outcome the officers considered was to take the caller into custody for the purposes of mental health 17 treatment. Obviously, one reason why a person could call 9-1-1 and ramble is that the person is 18 mentally ill, and the officers considered that possibility. The officers did not have any information that 19 any specific crime had occurred (they merely planned to investigate to determine whether a crime had 20 occurred). The officers did not have any information that anyone was in danger, other than possibly 21 police officers or the caller. No crime was committed on the day of the prior 9-1-1 calls. 22 The officers’ “tactical plan” consisted of the following: “It’s to approach quietly. [Orozco] and 23 Sergeant Carruesco would be on the south side and Barrier and Knott would be on the north side.” 24 That was the extent of the “tactical plan.” There does not appear to have been any plan formulated for 25 a situation where the subject surrendered or where an innocent third party exited the residence. 26 The officers traveled to the location from which they believed the call had been made, parked 27 their vehicles along the street, and approached the house on foot. Barrier attempted to call the cellphone 28 from which the 9-1-1 calls had been made, but nobody answered. 5 1 Then Barrier contacted the dispatcher to ask the dispatcher to call the land line at the house. 2 The purpose of doing this was to have the dispatcher tell the person in the house to come outside. 3 Barrier successfully made contact with the dispatcher and asked the dispatcher to call the residence and 4 have someone come outside. Barrier stated, “Can you confirm the address and locate a telephone 5 number for this subject?” The operator responded, “10-4.” 6 The dispatcher then called the landline, and Plaintiff picked up the phone. Plaintiff has 7 discovered a recording of that phone call. The time was approximately 1:47 in the morning, and 8 Plaintiff was asleep. On the recording, the following can be heard: 9 10 11 12 13 14 15 16 17 18 19 20 Plaintiff: Dispatcher: Plaintiff: Dispatcher: Plaintiff: Dispatcher: Plaintiff: Dispatcher: Plaintiff: Dispatcher: Plaintiff: Dispatcher: Plaintiff: Dispatcher: Plaintiff: Dispatcher: Plaintiff: Dispatcher: Plaintiff: Dispatcher: Plaintiff: [Ringing] Hello. Hello, is Arturo there? Arturo who? Arturo Gonzalez? Senior? Yes. I’m looking for Junior. No, he’s not in right now. He’s not in right now? No. Um, is this the address that called police recently, 4800 Chinta Drive? Well, this is Arturo’s father. And this is, um, 4800 Chinta Drive. Mmk. Ok. Arturo called us. Yes. And he was stating that – Sir, there are officers outside, and they need somebody to come outside and talk to them. Ok. Can you go outside? I – I can, yes. It’s going to be a little bit. All right. I’ll let the officer know, ok? Ok, fine. Thank you sir. Bye-bye. Bye. 21 22 After having made contact with Plaintiff, the dispatcher sent the following audio transmission to 23 Defendant Barrier: “5 North 1 [Barrier’s call sign], I made contact with the subject’s father. He’s 24 advising he’s not there; however, he will step out and speak with police.” In other words, the dispatcher 25 told the officers that the person they were looking for was not at home but that the person’s father (i.e., 26 Plaintiff) would step outside and talk to them. Plaintiff has discovered the audio recording of this call as 27 well as the written CAD (Computer Aided Dispatch) entry of this call. Plaintiff has also authenticated it 28 6 1 via the testimony of the dispatcher as well as of the City of Bakersfield’s designee under Federal Rule 2 of Civil Procedure 30(b)(6). The officers claim they never got the call. 3 After Plaintiff came outside, Plaintiff was instructed to walk backwards to the sound of the 4 officer’s voice. Plaintiff complied with these commands within seconds. Barrier conceded at his 5 deposition that at that time, Plaintiff was submitting to his authority. When officers asked Plaintiff who 6 he was, and he said, “This is Arturo Gonzalez Montes, sir.” At that time, Plaintiff had a gray beard. 7 The rest of the encounter is captured on video (which is submitted herewith). Plaintiff is 8 walking backwards with his hands above his head, complying with the officers’ commands. Then he is 9 ordered onto his knees, and he complies. The officers claim that at this point, Plaintiff “maneuvered his 10 shoulder back and forth” in “a strange manner” and “reached for his waistband.” However, Plaintiff 11 disputes this version of events. Plaintiff merely lowers his right hand to touch the ground for balance 12 as he goes down to his knees. Then the officers charge, tackle, and beat Plaintiff. 13 On the video, Defendant Barrier is the first to make contact with Plaintiff. Barrier admits to 14 applying force with his knee, using a control hold, striking Plaintiff with his fist, and applying his body 15 weight. Barrier admits that he struck Plaintiff as hard as he could with his knee. Barrier also admits 16 that he punched Plaintiff in the face as hard as he could. Barrier also admits applying body weight to 17 Plaintiff for 60 seconds. 18 Meanwhile, Defendant Orozco applied a control hold. Specifically, Defendant Orozco applied a 19 rear wrist lock to twist one of Plaintiff’s hands behind his back.Defendant Knott applied body weight to 20 Plaintiff’s back. The officers admit that Plaintiff never punched, kicked, or verbally threatened the 21 officers. Defendant Barrier never believed that Plaintiff was trying to flee. 22 After he was in handcuffs, Plaintiff complained of pain. Orozco After taking Plaintiff into 23 custody, the officers claim to have realized their mistake. When asked, Plaintiff told the officers that he 24 had not seen or heard from his son, Arturo Gonzalez Jr., in two days. 25 No crime had been committed. However, even after Defendant Barrier was told that Plaintiff 26 was not the person they were looking for, Defendant Barrier requested permission to arrest Plaintiff. 27 Defendant Barrier’s request for permission to arrest Plaintiff was denied. 28 7 1 Even though no crime had been committed and the officers knew that Plaintiff was not the 2 person they had been looking for, Plaintiff remained in handcuffs. While in handcuffs, he was placed 3 in the back of a patrol car (causing excruciating pain to his injured shoulder). The handcuffs were not 4 unfastened from behind his back until around the time the paramedics arrived. Defendants acknowledge 5 that the paramedics did not arrive until 2:09, or 22 minutes after Plaintiff was ordered out of his house. 6 After the paramedics arrived, Plaintiff was handcuffed to the gurney. The handcuffs were not removed 7 until Plaintiff arrived at the hospital. 8 9 10 The particular acts, omissions or conditions constituting the basis of any defense: Plaintiff contends that no defenses are available based on the facts and circumstances of the case. The age, injuries sustained, prior injuries, medical expenses and estimated future medical 11 expenses of claimant: Arturo Gonzalez, age 64, suffered severe and lasting injuries to his neck, lower 12 back, and shoulders consisting, without limitation, of post traumatic tendinosis with tears in the left 13 shoulder, post traumatic impingement syndrome in the left shoulder, post traumatic tendinosis and 14 impingement syndrome in the right shoulder, post traumatic cervical disc derangement and disc 15 prolapse, post traumatic lumbar disc derangement and disc prolapse with annular tears, headaches, 6th 16 and 7th rib fractures, hip pain, knee pain, anxiety and chest pain. His injuries required hospitalization 17 and long-term medical treatment. He continues to experience pain and discomfort throughout his entire 18 body, and his injuries require ongoing medical care in the future, consisting, without limitation, of 19 epidural steroid injections and medial branch nerve blocks in the spine, lumbar discogram, lumbar radio 20 frequency ablation, and left shoulder surgical arthroscopy. Mr. Gonzalez has a history of low back pain, 21 but prior to this incident it was stable and did not require any intervention. The past medical specials 22 are $53,468.41. The future medical specials are as follows: $5,000 to $6,000 per injection for epidural 23 steroid injections. He will likely need a total of six injections in the future. The estimated cost for the 24 left shoulder arthroscopic surgery is $30,000 to $40,000. The estimated cost for the lumbar radio 25 frequency ablation is $8,000 to $10,000 and he will likely require two of these in the future. The total 26 estimated costs for future medical care are $76,000 to $96,000. Defendant’s Special Factual Contentions: 27 2. 28 On January 20, 2015 at approximately 1:15 a.m., Bakersfield Police Officers Douglas Barrier, 8 1 Kasey Knott, Juan Orozco, and Sergeant Gary Carruesco were dispatched to 4800 Chinta Drive in 2 Bakersfield, California to “check the welfare” of an individual who had made prior threats to kill law 3 enforcement. Prior to their arrival, Bakersfield Police Officer Douglas Barrier was provided with 4 additional details regarding the criminal threats and the suspect by the Bakersfield Communication 5 Center. Officer Barrier was also advised that the subject’s name was Arturo Gonzalez, his date of birth 6 was April 7, 1982, and that there was an outstanding warrant for his arrest. In addition, Officer Barrier 7 accessed information about prior calls for service at the Chinta Drive address including the fact that on 8 January 18, 2015, Arturo Gonzalez made multiple calls saying things like “I got my shotgun and I’m 9 gonna kill the cops!”, that he was in possession of a 12 gauge shotgun and if Officers arrive at his 10 residence, he will “be hiding in the dark to ambush” responding Officers, that he was in possession of a 11 grenade, a rocket launcher, five friends and an AK-47. Officer Barrier also learned that Arturo 12 Gonzalez had a prior arrest for assault with a deadly weapon in 2007 and criminal threats in 2009. 13 Prior to going to the residence, the four Officers parked and met at the intersection of Ambrister 14 Drive and Stine Road to form a tactical plan. Officer Barrier relayed the information he had learned 15 through his records check including providing information regarding the previous calls by Arturo 16 Gonzalez Jr. regarding the threats to police officers, and the fact that Arturo Gonzalez Jr. had a warrant 17 for his arrest. 18 The Officers proceeded to 4800 Chinta Drive on foot, utilizing vehicles for cover. Upon arrival, 19 Officer Barrier attempted to call the cell phone number associated with the calls that had been made on 20 January 18, 2015; however, no one answered. At that point, Officer Barrier contacted the 21 Communications Center to ask if they would contact the reporting party and have the subject step 22 outside the residence. Officer Barrier also asked if the Communication Center could attempt to locate a 23 land-line associated with 4800 Chinta Drive and make contact. 24 At approximately 1:50 a.m., a male subject exited the residence wearing baggy clothing, a 25 hooded sweatshirt and a beanie. Officer Barrier was concerned that the subject’s hands were 26 concealed. Officer Barrier proceeded to shine his flashlight on the male subject announcing 27 “Bakersfield Police Department”. Officer Barrier then called out: “Arturo Gonzalez, take your hands 28 out of your pockets.” Mr. Gonzalez acknowledged Officer Barrier and the Officers believed that the 9 1 make subject coming out of the residence was the subject they were looking for and who had made 2 criminal threats regarding ambushing police. 3 The male subject initially said “okay” in response to the orders by Officer Barrier but then 4 failed to immediately remove his hands from his pockets. The Officers remained fearful that the male 5 subject was in possession of firearm in his pocket. When the male subject did finally remove his 6 hands from his pocket, Officer Barrier ordered the male subject to put his hands in the air and walk 7 back towards him. The male subject walked behind all of the vehicles down the driveway which 8 caused the Officers significant concern. The male subject then turned around and while he initially put 9 his hands in the air and started walking backwards, he kept dropping his hands down from a raised 10 position down to shoulder level and kept turning back and looking over his right shoulder. This 11 conduct led the Officers to believe that the male subject was attempting to pinpoint the Officers’ 12 location and was preparing for a gun fight. 13 Officer Barrier again ordered the male subject to place his hands higher in the air and to face 14 forward. Officer Barrier gave additional and repeated commands to the male subject to re-raise his 15 hands or to face forward, which the male subject did momentarily and then he would lower them down 16 again or look back toward the Officers. This conduct was threatening to the Officers because a suspect 17 could quickly reach for a weapon and use that weapon. Once the male subject had reached a well lit 18 area underneath a light post, Officer Barrier ordered him to stop, keep his hands in the air, and to get 19 down on his knees. 20 As the male subject went down to his knees, he maneuvered his right shoulder back again and 21 dropped his hands toward his waistband. In addition, the male suspect moved his left shoulder back 22 and forth, which seemed unusual to the Officers, who were concerned he was reaching for a weapon. 23 Officer Barrier yelled “stop” and ran toward the male subject with Officer Knott. Officer Barrier 24 then attempted to grab the male subject’s left forearm with his left hand and the male subject’s right 25 forearm with Officer Barrier’s right hand. However, the male subject maneuvered his right shoulder 26 back toward Officer Barrier. At that point, Officer Barrier used his momentum to push the male 27 subject forward onto his stomach. Officer Barrier then attempted to place the male subject’s hands 28 behind his back; however, the male subject’s left arm remained underneath him. Officer Barrier yelled 10 1 at the male subject to place his hands behind his back but the male subject refused to comply and would 2 not move his left arm from underneath him. Officer Barrier was able to maintain control over the male 3 subject’s right arm and again yelled for the male subject to place his hands behind his back and to stop 4 resisting. The male subject would not remove his left arm and did not comply. 5 At that point, while Officer Orozco took control over the male subject’s right arm, the male 6 subject rolled onto his left side causing Officer Barrier’s left arm to be trapped underneath the male 7 subject’s body. Officer Barrier again yelled at the male subject to roll over flat on his stomach and 8 place his arms behind his back; however, the male subject refused. Officer Barrier attempted to remove 9 the male subject’s arm from underneath him by pulling on it with his left arm. However, this resulted 10 in the male subject rolling over onto his back, which exposed the officers to risk of being kicked. 11 Officer Barrier maintained his grasp of the male subject’s left arm and Officer Orozco maintained 12 control over the male subject’s right arm. Officer Barrier then utilized his right knee to knee the male 13 subject in the left side, which allowed the officers to roll the male subject onto his stomach. At this 14 point, Officer Barrier was able to secure the male subject’s left arm near his head and then attempted to 15 place the male subject’s left arm behind his back so that he could be handcuffed. However, the male 16 subject brought his arm close to his body causing Officer Barrier to believe the male subject would 17 place his arm back underneath him. In order to prevent this, Officer Barrier punched the male subject 18 one time on the left side of his face. Despite this, the male subject continued to resist. Officer Barrier 19 again yelled at him to stop resisting and to just place his hands behind his back; however the male 20 subject adjusted his body and tensed his arm. Officer Barrier placed his left knee on the male subject’s 21 left side and applied body weight for between 10-30 seconds. Officer Knott placed his hands on the 22 male subject’s upper back and pressed down using some of his body weight for between 10-30 seconds. 23 Officer Barrier was then able to put the male subject in handcuffs. 24 After getting the male subject into handcuffs, the male subject informed the police Officers, for 25 the first time, he was Arturo Gonzalez Montes and that Arturo Gonzalez Jr. was his son. This was the 26 first time the Officers realized the person in custody was not Arturo Gonzalez Jr. He then complained 27 to the Officer that he had pain in his shoulders, left side, and lower back and as such, an ambulance was 28 summoned at 2:02 a.m. and arrived at 2:09 a.m. Mr. Gonzalez Montes was taken by ambulance to 11 1 Mercy Southwest Hospital. Plaintiff Arturo Gonzalez Montes was not placed under arrest. Defendants maintain that their conduct in all aspects was reasonable and lawful. Specifically, 2 3 regardless of whether the Plaintiff was Arturo Gonzalez Jr., or not, the threats that had been made were 4 sufficient to put any officer on high alert in regard to anyone coming out of the house. Arturo Gonzalez 5 Montes did not comply with police orders causing further concern of risk of harm and which 6 necessitated the use of force, particularly given his active resistance. There was probable cause for his 7 detention and the use of force was entirely justified and lawful. In the alternative, the Defendants are 8 entitled to Qualified Immunity and/or immunity pursuant to California’s Government Code. In 9 addition, it is Defendants’ position that the Plaintiff’s conduct and the conduct of his son caused and/or 10 contributed to this incident. 11 The Plaintiff claims ongoing orthopedic injuries, particularly to his back, shoulder, and neck. 12 The Defendants deny that the Plaintiff suffered any injuries that were not resolved within days of the 13 incident. 14 H. RELIEF SOUGHT 15 Plaintiff 16 a. All available categories of non-economic compensatory damages under federal 17 and state law, including but not limited to physical pain, mental suffering, loss of enjoyment of life, 18 inconvenience, grief, anxiety, and humiliation – both past and future; 19 b. Economic damages, including both past and future medical expenses; 20 c. Punitive damages; 21 d. Statutory damages under the Bane Act; and 22 e. Attorneys’ fees and costs. 23 Defendants 24 Defendants seek dismissal of this case, costs, and attorneys’ fees under 42 U.S.C § 1988 and 25 42 U.S.C § 1927, Federal Rule of Civil Procedure 54, Local Rules 292 and 293, and all other 26 applicable statutes and rules. 27 I. 28 ABANDONED ISSUES During the course of this litigation, Plaintiff dismissed the following causes of action: (1) 12 1 Substantive Due Process (42 U.S.C § 1983) [third cause of action]; (2) Municipal Liability- 2 Ratification (42 U.S.C § 1983) [fourth cause of action]; (3) Municipal Liability- Police of Inaction (42 3 U.S.C § 1983) [fifth cause of action]; (4) Municipal Liability- Unconstitutional Custom, Practice, or 4 Policy (42 U.S.C § 1983) [sixth cause of action]; and (5) Cal. Civil Code § 52.1 (Bane Act) as to 5 Defendant Gary Carruesco only. [See Dkt. Nos. 30, 42.] 6 J. 7 WITNESSES The following is a list of witnesses that the parties expect to call at trial, including rebuttal and 8 impeachment witnesses. NO WITNESS, OTHER THAN THOSE LISTED IN THIS SECTION, 9 MAY BE CALLED AT TRIAL UNLESS THE PARTIES STIPULATE OR UPON A SHOWING 10 THAT THIS ORDER SHOULD BE MODIFIED TO PREVENT “MANIFEST INJUSTICE.” Fed. R. 11 Civ. P. 16(e); Local Rule 281(b)(10). 12 Plaintiff’s Witnesses 13 1. Plaintiff Arturo Gonzalez 14 2. Defendant Douglas Barrier 15 3. Defendant Kasey Knott 16 4. Defendant Juan Orozco 17 5. Defendant Gary Carruesco 18 6. Natalie Collins 19 7. Jaime Patterson 20 8. Jerry Haroldsen 21 9. Joseph Mullins 22 10. Chris Hall 23 11. Travus Falco 24 12. Branden Campbell 25 13. Scott DeFoe (Retained Expert) 26 14. Richard Emmanuel, M.D. (Retained Expert) 27 15. Luis Teopengco, M.D. (Non-retained Expert) 28 16. Arturo Palencia (Non-retained Expert) 13 1 17. Kian Azimian, M.D., Mercy Hospital 2 18. Sarah Carr, PA-C, Mercy Hospital 3 19. Nelson Yang, M.D., Mercy Hospital 4 20. Waad Hanna, M.D. (radiology), Mercy Southwest 5 21. Robert Port, M.D., Clinica Sierra Vista 6 22. James Cusator, M.D., Clinica Sierra Vista 7 23. Loraine Ash, D.O., Clinica Sierra Vista 8 24. Bryce Sheffield, P.T., Terrio Therapy & Fitness 9 25. Carmen Fischer, M.D., Pain Institute of Central California 10 26. Afaq Kazi, M.D., Pain Institute of Central California 11 27. Kiersten Melendez, PA-CA, Comprehensive Cardiovascular 12 28. Kuan-The Wu, M.D., Comprehensive Cardiovascular 13 29. Supratim Banerjee, M.D., Comprehensive Cardiovascular 14 30. Nasser Kahn, M.D., Comprehensive Cardiovascular 15 31. Manjul Shah, M.D., Bakersfield Upright MRI 16 32. Gabriel Gelves, D.O., Bakersfield Upright MRI 17 33. Karan Kapoor, M.D., Truxtun Radiology Medical Group 18 34. Mark Williams, M.D., Truxtun Radiology Medical Group 19 35. Girish Patel, M.D., Truxtun Radiology Medical Group 20 36. Sonia Alvarenga 21 37. Pablo Alvarenga 22 Defendants’ Witnesses 23 1. Plaintiff Arturo Gonzalez 24 2. Arturo Gonzalez Jr. 25 3. Carlo Gonzalez 26 4. Defendant Douglas Barrier 27 5. Defendant Kasey Knott 28 6. Defendant Juan Orozco 14 1 7. Defendant Gary Carruesco 2 8. Natalie Collins 3 9. Jaime Patterson 4 10. Jerry Haroldsen 5 11. Custodian of Records - Department of Social Security/Office of Social Security 6 12. Joseph Mullins 7 13. Chris Hall 8 14. Travus Falco 9 15. Branden Campbell 10 16. Curtis Cope (Retained Expert) 11 17. Donald Huene M.D (Retained Expert) 12 18. Nelson Yang, M.D (Non-Retained Expert) 13 19. Waad Hanna, M.D (Non-Retained Expert) 14 15 K. EXHIBITS, SCHEDULES AND SUMMARIES The following is a list of documents or other exhibits that the parties expect to offer at trial. 16 NO EXHIBIT, OTHER THAN THOSE LISTED IN THIS SECTION, MAY BE ADMITTED 17 UNLESS THE PARTIES STIPULATE OR UPON A SHOWING THAT THIS ORDER SHOULD BE 18 MODIFIED TO PREVENT “MANIFEST INJUSTICE.” Fed. R. Civ. P. 16(e); Local Rule 281(b)(11). 19 Plaintiffs’ Exhibits 20 Liability Exhibits: 21 1. Surveillance Video 22 2. Photographs of Plaintiff 23 3. Dispatch Log (CAD Call Hardcopy) 24 4. Dispatch Audio 25 5. Dispatcher Call Audio 26 6. Use of Force Report 27 7. Master Audio Log 28 8. Police Report Regarding Incident 15 1 9. Excerpts of BPD Policy Manual 2 10. Excerpts of POST Learning Domains 3 11. Excerpts of Training Records for Defendant Barrier 4 12. Excerpts of Training Records for Defendant Orozco 5 13. Excerpts of Training Records for Defendant Knott 6 14. Excerpts of Training Records for Defendant Carruesco 7 15. Audio of IME 8 16. Police Reports re Prior Calls 9 17. Excerpts from Cope File 10 Medical Records: 11 1. Medical records from Mercy Hospital 12 2. Medical records from Clinica Sierra Vista 13 3. Medical records from Terrio Therapy 14 4. Medical records from Pain Institute of Central California 15 5. Medical records from Comprehensive Cardiovascular Medical Group 16 6. Medical records from Bakersfield Memorial Hospital 17 7. Medical records from Stockdale Surgery Center 18 8. Medical records from Hall Ambulance 19 9. Medical records from Bakersfield Upright MRI 20 10. Medical records from Truxtun Radiology 21 Medical Bills: 22 1. Medical bills from Mercy Southwest 23 2. Medical bills from Pinnacle Emergency Physicians of Bakersfield 24 3. Medical bills from Kern Radiology Medical Group 25 4. Medical bills from Clinica Sierra Vista 26 5. Medical bills from Terrio Therapy Fitness 27 6. Medical bills from Pain Institute of Central California 28 7. Medical bills from Comprehensive Cardiovascular Medical Group 16 1 8. Medical bills from Bakersfield Memorial Hospital 2 9. Medical bills from Stockdale Surgery Center, LLC 3 10. Medical bills from Hall Ambulance 4 11. Medical bills from Bakersfield Upright MRI 5 12. Medical bills from Truxtun Radiology Medical Group 6 Defendants’ Exhibits 7 1. Records from the Department of Social Security/Office of Social Security 8 2. 911 calls made by Arturo Gonzalez Jr. 9 3. Photographs of Plaintiff 10 4. Surveillance Video of Plaintiff 11 5. Video of Plaintiff’s deposition 12 6. 911 Calls made by Carlo Gonzalez 13 7. Select records from Mercy Hospital 14 8. Select records from Hall Ambulance 15 9. Police Reports associated with 4800 Chinta Drive 16 10. Police Report GO# 2015-14237 17 11. Select xrays, CT scans, and/or MRIs taken of Plaintiff 18 12. Select records from Bakersfield Memorial Hospital 19 12. Excerpts from Cope File 20 13. Excerpts from Huene File 21 14. Photographs of Scene 22 On or before July 14, 2017 counsel SHALL meet and confer to discuss any disputes related to 23 the above listed exhibits and to pre-mark and examining each other’s exhibits. Any exhibits not 24 previously disclosed in discovery SHALL be provided via e-mail or overnight delivery so that it is 25 received by July 10, 2017. 26 1. At the exhibit conference, counsel will determine whether there are objections to the 27 admission of each of the exhibits and will prepare separate indexes; one listing joint exhibits, one 28 listing Plaintiff’s exhibits and one listing Defendant’s exhibits. In advance of the conference, counsel 17 1 must have a complete set of their proposed exhibits in order to be able to fully discuss whether 2 evidentiary objections exist. Thus, any exhibit not previously provided in discovery SHALL be 3 provided at least five court days in advance of the exhibit conference. 4 2. At the conference, counsel shall identify any duplicate exhibits, i.e., any document 5 which both sides desire to introduce into evidence. These exhibits SHALL be marked as a joint exhibit 6 and numbered as directed above. Joint exhibits SHALL be admitted into without further foundation. 7 All Joint exhibits will be pre-marked with numbers preceded by the designation “JT” (e.g. JT/1, 8 JT/2, etc.). Plaintiff’s exhibits will be pre-marked with numbers beginning with 1 by the designation 9 PX (e.g. PX1, PX2, etc.). Defendant’s exhibits will be pre-marked with numbers beginning with 501 10 preceded by the designation DX (e.g. DX501, DX502, etc.). The parties SHALL number each page of 11 any exhibit exceeding one page in length (e.g. PX1-1, PX1-2, PX1-3, etc.). 12 13 14 If originals of exhibits are unavailable, the parties may substitute legible copies. If any document is offered that 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 15 exhibits. The index shall consist of a column for the exhibit number, one for a description of the 16 exhibit and one column entitled “Admitted in Evidence” (as shown in the example below). INDEX OF EXHIBITS 17 ADMITTED 18 19 20 EXHIBIT# 3. DESCRIPTION IN EVIDENCE As to any exhibit which is not a joint exhibit but to which there is no objection to its 21 introduction, the exhibit will likewise be appropriately marked, i.e., as PX1, or as DX501 and will be 22 indexed as such on the index of the offering party. Such exhibits will be admitted upon introduction 23 and motion of the party, without further foundation. 24 4. Each exhibit binder shall contain an index which is placed in the binder before the 25 exhibits. Each index shall consist of the exhibit number, the description of the exhibit and the three 26 columns as shown in the example below. 27 28 INDEX OF EXHIBITS ADMITTED 18 OBJECTION OTHER 1 EXHIBIT# 5. 2 3 DESCRIPTION IN EVIDENCE FOUNDATION OBJECTION 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.” 6. 4 On the index, as to exhibits to which there are objections to admissibility that are not 5 based solely on a lack of foundation, counsel will place a mark under the column heading entitled 6 “Other Objections.” After the exhibit conference, Plaintiff and counsel for the defendants SHALL develop four 7 8 complete, legible sets of exhibits. The parties SHALL deliver three sets of their exhibit binders to the 9 Courtroom Clerk and provide one set to their opponent, no later than 4:00 p.m., on August 18, 2017 10 Counsel SHALL determine which of them will also provide three sets of the joint exhibits to the 11 Courtroom Clerk. 12 7. 13 /// 14 L. The Parties SHALL number each page of any exhibit exceeding one page in length. 15 DISCOVERY DOCUMENTS The following is a list of discovery documents – portions of depositions, answers to 16 interrogatories, and responses to requests for admissions – that the parties expect to offer at trial. 17 NO DISCOVERY DOCUMENT, OTHER THAN THOSE LISTED IN THIS SECTION, MAY BE 18 ADMITTED UNLESS THE PARTIES STIPULATE OR UPON A SHOWING THAT THIS ORDER 19 SHOULD BE MODIFIED TO PREVENT “MANIFEST INJUSTICE.” Fed. R. Civ. P. 16(e); Local 20 Rule 281(b)(12). 21 Plaintiff’s Documents 22 1. City’s Responses to Request for Admissions, Set One, served June 20, 2016 23 2. City’s Responses to Special Interrogatories, Set One, served June 20, 2016 24 3. City’s Responses to Request for Production, Set One, served June 29, 2016 25 4. City’s Supplemental Responses to Request for Production, Set One, served August 22, 2016 26 27 5. City’s Responses to Request for Production, Set Two, served September 6, 2016 28 6. City’s response to Request for Production, Set Three, served November 16, 2016 19 1 Defendants’ Documents 2 1. Plaintiffs’ Responses to Special Interrogatories from Douglas Barrier 3 2. Plaintiffs’ Responses to Special Interrogatories from Gary Carruesco 4 3. Plaintiffs’ Responses to Special Interrogatories from City of Bakersfield 5 4. Plaintiff’s Responses to Requests for Production of Documents Set No. 1 6 5. Plaintiff’s Responses to Requests for Production of Documents Set No. 2 7 In the event the parties wish to admit any portion of a discovery document, the specific 8 discovery request, e.g., interrogatory, request for admission, must be redacted so that any extraneous 9 request/response is omitted. 10 M. No further discovery is sought by either party. 11 12 13 FURTHER DISCOVERY OR MOTIONS N. MOTIONS IN LIMINE Any party may file motions in limine. The purpose of a motion in limine is to establish in 14 advance of the trial that certain evidence should not be offered at trial. “Although the Federal Rules of 15 Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the 16 district court’s inherent authority to manage the course of trials.” Luce v. United States, 469 U.S. 38, 17 40 n. 2 (1984); Jonasson v. Lutheran Child and Family Services, 115 F. 3d 436, 440 (7th Cir. 1997). 18 The Court will grant a motion in limine, and thereby bar use of the evidence in question, only if the 19 moving party establishes that the evidence clearly is not admissible for any valid purpose. Id. 20 In advance of filing any motion in limine, counsel SHALL meet and confer to determine 21 whether they can resolve any disputes and avoid filing motions in limine. Along with their 22 motions in limine, the parties SHALL file a certification demonstrating counsel have in good 23 faith met and conferred and attempted to resolve the dispute. Failure to provide the 24 certification may result in the Court refusing to entertain the motion. 25 Any motions in limine must be filed with the Court by July 28, 2017. The motion must 26 clearly identify the nature of the evidence that the moving party seeks to prohibit the other side from 27 offering at trial. Any opposition to the motion must be served on the other party, and filed with the Court 28 by August 4, 2017. The Court sets a hearing on the motions in limine on August 14, 2017, at 9:30 a.m. 20 1 Counsel may appear via teleconference by dialing (888) 557-8511 and entering Access Code 1652736, 2 provided the Magistrate Judge's Courtroom Deputy Clerk receives a written notice of the intent to appear 3 telephonically no later than five court days before the noticed hearing date. The parties are reminded they may still object to the introduction of evidence during trial. 4 5 O. None. 6 7 P. 10 AMENDMENTS/ DISMISSALS The parties stipulate to the dismissal of the “Doe Defendants” identified in the operative 8 9 STIPULATIONS Complaint. (See Doc. 49 at 32) Q. SETTLEMENT NEGOTIATIONS The parties report that they “engaged in a formal mediation which did not lead to the resolution 11 12 of this matter.” (Doc. 49 at 32) 13 R. None. 14 15 S. T. U. ATTORNEYS’ FEES The parties will seek an award of attorneys’ fees as appropriate as a post-trial motion. 20 21 APPOINTMENT OF IMPARTIAL EXPERTS None requested 18 19 SEPARATE TRIAL OF ISSUES None. 16 17 AGREED STATEMENT V. TRIAL DATE/ ESTIMATED LENGTH OF TRIAL Jury trial is set for August 21, 2017, at 8:30 a.m. before the Honorable Jennifer L. Thurston at 22 23 the United States Courthouse, 510 19th Street, Bakersfield, California. Trial is expected to last 5-7 days. 24 W. TRIAL PREPARATION AND SUBMISSIONS 25 1. Trial Briefs 26 The parties are relieved of their obligation under Local Rule 285 to file trial briefs. If any party 27 wishes to file a trial brief, they must do so in accordance with Local Rule 285 and be filed on or before 28 August 11, 2017. 21 1 2. 2 The parties are required to file their proposed voir dire questions, in accordance with Local 3 Jury Voir Dire Rule 162.1, on or before August 11, 2017. 4 3. Jury Instructions & Verdict Form 5 The parties shall serve, via e-mail or fax, their proposed jury instructions in accordance with 6 Local Rule 163 and their proposed verdict form on one another no later than July 28, 2017. The 7 parties shall conduct a conference to address their proposed jury instructions and verdict form no later 8 than August 4, 2017. At the conference, the parties SHALL attempt to reach agreement on jury 9 instructions and verdict form for use at trial. The parties shall file all agreed-upon jury instructions and 10 verdict form no later than August 11, 2017, and identify such as the agreed-upon jury instructions and 11 verdict forms. At the same time, the parties SHALL lodge via e-mail a copy of the joint jury 12 instructions and joint verdict form (in Word format) to JLTOrders@caed.uscourts.gov. If and only if, the parties after genuine, reasonable and good faith effort cannot agree upon 13 14 certain specific jury instructions and verdict form, the parties shall file their respective proposed 15 (disputed) jury instructions and proposed (disputed) verdict form no later than August 11, 2017, and 16 identify such as the disputed jury instructions and verdict forms. At the same time, the parties 17 SHALL lodge via e-mail, a copy of his/their own (disputed) jury instructions and proposed (disputed) 18 verdict form (in Word format) to JLTOrders@caed.uscourts.gov. 19 In selecting proposed instructions, the parties shall use Ninth Circuit Model Civil Jury 20 Instructions or California’s CACI instructions to the extent possible. All jury instructions and verdict 21 forms shall indicate the party submitting the instruction or verdict form (i.e., joint, plaintiff’s, 22 defendant’s, etc.), the number of the proposed instruction in sequence, a brief title for the instruction 23 describing the subject matter, the complete text of the instruction, and the legal authority supporting 24 the instruction. Each instruction SHALL be numbered. 25 X. OBJECTIONS TO PRETRIAL ORDER 26 Any party may, within 10 days after the date of service of this order, file and serve written 27 objections to any of the provisions set forth in this order. Such objections shall clearly specify the 28 requested modifications, corrections, additions or deletions. 22 1 Y. None. 2 3 4 MISCELLANEOUS MATTERS Z. COMPLIANCE Strict compliance with this order and its requirements is mandatory. All parties and their 5 counsel are subject to sanctions, including dismissal or entry of default, for failure to fully comply 6 with this order and its requirements. 7 8 9 IT IS SO ORDERED. Dated: July 5, 2017 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23

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?