Crime, Justice & America, Inc., et al vs. Reniff

Filing 107

ORDER signed by District Judge Troy L. Nunley on 10/2/2014 ORDERING 98 Plaintiffs' motion in limine is DENIED in PART and DEFERRED in PART; and Defendant's 97 motion in limine is GRANTED in PART and DENIED in PART. (Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CRIME, JUSTICE & AMERICA, INC., a
California Corporation; and RAY
HRDLICKA, an individual,

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Plaintiffs,

No. 2:08-cv-00343 TLN EFB

ORDER ON MOTIONS IN LIMINE

v.
JERRY W. SMITH, in his official capacity
of Sheriff of the County of Butte,
California.

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Trial Date: November 17, 2014
Time: 9:00 a.m.
Location: Courtroom 26
Judge: The Hon. Troy L. Nunley

Defendant.
Complaint filed: February 13, 2008

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This matter is before the Court for a pre-trial evidentiary ruling on Plaintiffs Ray Hrdlicka

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(“Hrdlicka”) and his publication Crime, Justice & America’s (“CJA”) (collectively referred to as

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“Plaintiffs”) and Defendant Jerry W. Smith’s (“Defendant”) motions in limine.

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I.

FACTUAL BACKGROUND

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Plaintiffs Hrdlicka and his publication CJA brought suit against Defendant, Sheriff of

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Butte County, California, for denying distribution of CJA at the Butte County Jail. The

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publication addresses criminal justice topics relevant to jail inmates. It also contains

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advertisements for bail bond agents and lawyers. CJA is currently distributed in 32 county jails in

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California.
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CJA delivers unsolicited magazines to jails through bulk distribution or direct mailings to

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inmates. The Butte County Sheriff’s Department, in conjunction with Butte County Counsel

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Brad Stephens (“Stephens”), denied distribution of the CJA in its jail on the basis of a California

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law prohibiting distribution of unsolicited commercial mail to inmates.

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On February 5, 2008, Plaintiffs filed a § 1983 suit for injunctive relief against the Butte

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County Sheriff. Plaintiffs alleged the jail’s refusal to distribute the publication violated their First

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Amendment rights. The Court granted summary judgment to Defendant. (ECF No. 45.) On

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January 31, 2011, the Ninth Circuit reversed the district court’s order granting summary judgment

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to Defendant, and held that Plaintiffs have a First Amendment interest in distributing, and inmates

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have a First Amendment interest in receiving, unsolicited publications. (ECF No. 51.) This case

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was reassigned to the undersigned on April 3, 2013. (ECF No. 77.) This matter is now before the

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Court on the parties’ motions in limine.

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II.

ANALYSIS OF PLAINTIFFS’ MOTIONS
a. Motion to Exclude Gary Cohen Declarations and Testimony

Plaintiffs move to exclude Gary Cohen’s 2005 declarations and testimony regarding his

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opinion as to whether CJA’s advertisements violate California regulations because Plaintiffs aver

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that they are: 1) irrelevant and 2) constitute expert testimony. (Pls. Mot. in Limine, ECF No. 98.)

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Defendant argues that the evidence is relevant to the jail’s continued policy of refusing

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distribution of the publication from 2004–2007. (Def.’s Opp’n., ECF No. 100 at 2.) Defendant

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further argues that the evidence is not being offered as expert testimony, but instead to show that

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Mr. Cohen issued the opinions in his declarations for another case and that Butte County Counsel

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Stephens relied on them. (ECF NO. 100 2–4.)

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The Court is not persuaded by Plaintiffs’ proffered reasons. The evidence goes to show

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the reasonableness of Defendant’s belief that Plaintiffs’ publication violated California law. Fed.

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R. Evid. 401. Though Defendant implemented the policy at Butte County Jail in 2004, before the

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2005 declarations, the reasoning behind the jail’s continued refusal to distribute CJA from 2004-

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2007 is relevant.

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As to Plaintiffs’ second assertion, Defendant is not offering Mr. Cohen’s declarations and
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testimony to prove that CJA’s advertisements violate California’s regulations. Defendant offers

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the evidence to show that Mr. Cohen issued the opinions in his declarations for another case and

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that Butte County Counsel Stephens1 relied on them. Thus, the declarations and testimony do not

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constitute expert evidence. Expert evidence pursuant to Rule 702 of the Federal Rules of

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Evidence is scientific, technical, or other specialized information that “will help the trier of fact to

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understand the evidence or to determine a fact in issue.” As such, Plaintiffs’ motion to exclude

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the declarations and testimony of Gary Cohen is DENIED. See Scott v. Ross, 140 F.3d 1275,

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1286 (9th Cir. 1998).
b. Motion to Exclude “CJA Advertisement Promotions”

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Plaintiffs move to exclude “CJA Advertisement Promotions” on Defendant’s Exhibit List

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because Plaintiffs do not know which documents Defendant refers to. In Defendant’s opposition

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(ECF No. 100), Defendant clarifies that the exhibit in question was in fact previously produced by

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Plaintiffs in response to Defendant’s Request for Production of Documents. (ECF No. 29-8 at 2.)

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Thus, Plaintiffs’ argument for excluding this document is unavailing and the motion is DENIED.
In their motion, Plaintiffs also mention “rebate promotional materials” they would like

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excluded on grounds of relevance. The Court will DEFER ruling on Plaintiffs’ motion to exclude

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the 2004 “rebate promotional materials.” (ECF No. 29-9 at 7.) If Defendant considered the

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rebate materials in formulating its decision to ban distribution of CJA in Butte County Jail, the

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evidence may be relevant. See Fed. R. Evid. 401. The Court is unable, however, to determine

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their relevance at this juncture.

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III.

ANALYSIS OF DEFENDANT’S MOTIONS
a. Motion to Preclude Alleged “Threats” by Defendant County Counsel

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Defendant moved this Court to preclude Plaintiffs from characterizing statements made by

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Stephens to Hrdlicka as “threats.” Subsequently, Plaintiffs agreed not to characterize the

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conversations Stephens had with Hrdlicka as “threats,” or state that Hrdlicka felt “threatened.”

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(ECF No. 101 at 2.) Therefore, Defendant’s motion is GRANTED. However, Plaintiffs may

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present testimony of what Mr. Stephens said, Mr. Stephens’ demeanor, and the tenor of his

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Defendant disclosed Mr. Stephens as both an expert and percipient witness.

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conversations with Plaintiff, so long as it conforms to the Federal Rules of Evidence.
b. Motion to Preclude Plaintiffs From Presenting Evidence of Monetary

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Damages
Defendant moves to exclude Plaintiffs’ evidence concerning monetary damages in Butte

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County, and other counties, on grounds that Plaintiffs: 1) produced no evidence of damages; 2)

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have no expert testifying on damages; and 3) that damages are speculative. For the reasons

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below, Defendant’s motion to exclude Plaintiffs’ evidence in their request for monetary damages

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is GRANTED IN PART and DENIED IN PART.

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The Court is unpersuaded by Defendant’s argument that the evidence should be excluded

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because Plaintiffs produced no evidence of damages during discovery. Plaintiffs offer Hrdlicka’s

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testimony as evidence of lost profits in this case.

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Additionally, Hrdlicka does not need to be designated an expert in order to testify. A

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nonexpert witness may give an opinion on the value of his own property or services. See San

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Diego Land & Town Co. v. Neale, 78 Cal. 63, 76–77 (1888). A witness may testify to this value

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without showing any special qualifications. Naples Rest., Inc. v. Coberly Ford, 259 Cal. App. 2d

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881, 884 (1968). However, evidence for a lost profits award must show the occurrence and the

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extent of lost profits with reasonable certainty. Sanchez-Corea v. Bank of Am., 38 Cal. 3d 892,

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907 (1985). When the fact of damages is certain, a reasonable basis of computation can be used

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to reach a reasonable approximation. Acree v. Gen. Motors Acceptance Corp., 92 Cal. App. 4th

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385, 398 (2001).

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As Hrdlicka is the owner and publisher of the CJA with intimate knowledge of his

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publication’s revenue, he may testify as a nonexpert on the numbers he produced for this case.

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Should Mr. Hrdlicka be able to present evidence of and reasonably compute damages in Butte

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County, such testimony would be admissible. Thus, Defendant’s motion to exclude evidence of

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monetary damages in Butte County is DENIED.

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However, Hrdlicka’s testimony will not be able to push other counties’ damages past the

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point of speculation. Damages must be based on something more than pure speculation or

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surmise. Commercial Union Assur. Co. v. Pac. Gas & Elec. Co., 220 Cal. 515, 523 (1934). The
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mere possibility that damage will result from wrongful conduct is insufficient for recovery.

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Ferguson v. Lieff, Cabraser, Heimann & Bernstein, 30 Cal. 4th 1037, 1048 (2003). The Court

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finds that showing damages in counties that allegedly denied distribution of the CJA as a result of

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the litigation in Butte is too speculative. Hrdlicka’s testimony would require the fact finder to

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engage in a series of assumptions about the counties that denied CJA distribution. Therefore,

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evidence on monetary damages incurred in counties other than Butte is excluded, and

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Defendant’s motion is GRANTED.

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c. Motion to Preclude Introduction of Correspondence From Inmates
Defendant moves to exclude Plaintiffs’ letters from inmates on grounds of

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1) authentication; 2) hearsay; 3) relevance; 4) undue prejudice; and 5) redundancy. The Court is

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inclined to agree with Defendant’s objections. Though the letters are highly relevant and highly

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probative, the letters are hearsay without exception. See Fed. R. Evid. 801(c). Issues in this case

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include whether distribution of CJA would cause inmates to engage in nefarious actions, and

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whether CJA would increase the improper use of paper by inmates. Since the inmates address

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these issues in their letters, and Plaintiffs would use these letters to prove the truth of the matter

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asserted, the letters are hearsay. This motion is thus GRANTED. Should Plaintiffs proffer a

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valid hearsay exception for offering such evidence at trial, the Court would be inclined to

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reconsider its ruling.

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d. Motion to Exclude Expert Testimony
Defendant moves this Court to exclude the testimony of Plaintiffs’ witnesses Kenneth

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Kerle, Richard Lichten, and Daniel Vasquez on the grounds that they are expert witnesses and

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offer expert testimony. Defendant argues Plaintiffs did not disclose these witnesses as experts

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and thus prejudiced Defendant in preparation for trial. The Court is inclined to agree, and thus

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GRANTS Defendant’s motion to exclude Plaintiffs’ expert testimony.

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Plaintiffs did not disclose any expert witnesses as required by Federal Rules of Civil

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Procedure 26(a)(2). They instead present three witnesses as lay witnesses. A lay opinion is

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rationally based on the witness’s perception and not based on scientific, technical, or other

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specialized knowledge. Fed. R. Evid. 701(a),(c). An expert opinion, on the other hand, is based
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on the witness’s specialized knowledge, and helps the trier of fact understand the evidence or

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determine a fact at issue. Fed. R. Evid. 702(a). Plaintiffs concede their witnesses are being

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offered for their extensive knowledge and backgrounds in law enforcement to conclude that CJA

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does not pose a security risk to jails. (ECF No. 96 at 17.) Thus, these witnesses are expert

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witnesses who employ specialized knowledge in their testimony. Specifically, Kenneth Kerle and

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Daniel Vasquez have never observed CJA circulating in jails. They do not have personal

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knowledge of its effects on jail security. They simply base their opinions on a review of the

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publication. (ECF No. 84 at 2–3; ECF No. 86 at 3–4.) Consequently, Defendant’s motion to

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exclude plaintiffs’ expert testimony is GRANTED pursuant to Federal Rules of Evidence 403

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considerations. However, because Richard Lichten observed the publication circulating in a Los

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Angeles County jail (ECF No. 85 at 3), Mr. Lichten is not precluded from testifying as to his

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personal observations. See Fed. R. Evid. 701.

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e. Motion to Preclude Introduction of Ninth Circuit Ruling
Defendant moves the Court to exclude the Ninth Circuit’s opinion issued in this case on

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grounds of: 1) relevance; 2) prejudice; and 3) confusion. The ruling is relevant because it defines

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the issues in this case. However, it is the Court’s job to inform the jury as to the law to be applied

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in this case. Thus, the Court will explain the limited issues and rule of law from the Ninth Circuit

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ruling to prevent prejudice or confusion. (ECF No. 51.) As such, Defendant’s motion to exclude

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the Ninth Circuit ruling is GRANTED IN PART and DENIED IN PART.

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f. Motion to Exclude Introduction of California Department of Insurance
Commissioner’s Opinion
Defendant moves the Court to exclude a December 2001 California Department of

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Insurance Commissioner’s Opinion on grounds of: 1) relevance; 2) confusion; and 3) hearsay.

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Defendant argues this opinion which deals with the legality of signboard advertisements has no

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bearing on this case.

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At issue in this case is whether Defendant had a reasonable belief that the advertisements

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in CJA violated California regulations prohibiting “solicitation” in jails. The 2001 Opinion,

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though about signboards instead of publications, outlines the difference between “passive”
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advertising and “solicitations.” (ECF No. 39-2.) Since it suggests that “passive” advertising in

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jails does not violate California regulations, it is relevant to the reasonableness of Defendant’s

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policy. This is especially true in light of Plaintiffs’ allegation that they presented the Opinion to

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Defendant when seeking distribution of the CJA in Butte County Jail.

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The Court is not persuaded that this Opinion is confusing simply because it refers to

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signboards instead of publications. The relevance of the Opinion to the case is outlined above.

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Its probative value outweighs any potential for confusion. See Fed. R. Evid. 403. Moreover, this

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Opinion is not hearsay because it is not being used for the truth of the matter asserted. As such,

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Defendant’s motion to exclude this Opinion is DENIED.

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IV.

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For the foregoing reasons, the Court orders as follows:

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CONCLUSION

1.) Plaintiffs’ motion in limine is DENIED IN PART and DEFERRED IN PART. (ECF No.
98.)
a. Plaintiffs’ motion to exclude Gary Cohen’s declarations and testimony is

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DENIED.

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b. Plaintiffs’ motion to exclude “CJA Advertisement Promotions” is DENIED.

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c. Plaintiffs’ motion to exclude CJA “rebate promotional materials” is DEFERRED.

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2.) Defendant’s motion in limine is GRANTED IN PART and DENIED IN PART. (ECF No.
97.)
a. Defendant’s motion to preclude Plaintiffs from characterizing statements made by

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Stephens to Hrdlicka as “threats,” or that Hrdlicka felt “threatened,” is

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GRANTED.

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b. Defendant’s motion to exclude Plaintiffs’ evidence concerning monetary damages
is GRANTED IN PART and DENIED IN PART.

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c. Defendant’s motion to exclude Plaintiffs’ inmate letters is GRANTED.

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d. Defendant’s motion to exclude Plaintiffs’ expert testimony is GRANTED.

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e. Defendant’s motion to exclude the Ninth Circuit ruling is GRANTED IN PART

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and DENIED IN PART.
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f. Defendant’s motion to exclude a 2001 California Department of Insurance
Commissioner’s Opinion is DENIED.

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IT IS SO ORDERED.
Dated: October 2, 2014

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Troy L. Nunley
United States District Judge

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