McMurray v. County of Sacramento et al

Filing 82

ORDER signed by Judge Garland E. Burrell, Jr. on 1/19/2012 GRANTING in part and DENYING in part Defendant's 60 Motion in Limine; GRANTING in part and DENYING in part Plaintiff's 61 Motion in Limine. (Michel, G)

1
2
3
4
5

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA

6
7

VALETTA McMURRAY,

8

Plaintiff,

9
10
11
12
13

v.
COUNTY OF SACRAMENTO, DEPUTY
SHERIFF JAVIER BUSTAMANTE, and
DEPUTY SHERIFF L. CULP,
Defendants.
________________________________

)
)
)
)
)
)
)
)
)
)
)
)

2:09-cv-02245-GEB-EFB
ORDER ON MOTIONS IN LIMINE

14

The parties move in limine for an order seeking to preclude

15

the admission of certain evidence at trial. Each motion is addressed

16

below.
A.

17

Plaintiff’s Motions in Limine

18

Motion in Limine No. 1

19

Plaintiff seeks to “limit references to the prior convictions

20

of [the decedent,] Damion McMurray[,] and his recent release from

21

prison[,]” arguing “[n]one of the facts of his criminal history have any

22

bearing on the reasons the officers were present at his home on the day

23

he

24

prejudicial.” (Pl.’s Mots. In Limine (“MILs”) 1:16-20.)

was

shot

and

killed[,]

and

such

references

will

be

unduly

25

Defendants counter, inter alia, “Plaintiff fails to delineate

26

any specific convictions, misdemeanor or felonies that she seeks to

27

exclude[, and a]bsent such specifics, this court and Defendants are left

28

to speculate as to how those unspecified convictions are indeed truly

1

1

irrelevant or prejudicial, nor can the court reasonably fashion any

2

order.” (Defs.’ Opp’n 3:8-11.) Defendants further argue conviction are

3

relevant to damages, “not just to potential liability.” (Defs.’ Opp’n

4

3:28 to 4:1).

5

Since it is unclear what evidence is involved in this motion,

6

or whether the referenced evidence is relevant on any issue, the motion

7

is DENIED.

8

Motion in Limine No. 2

9

Plaintiff

seeks

to

exclude

reference

to

the

fact

that

10

“decedent’s father was in prison”

11

(Pl.’s MILs 1:21-22.) Plaintiff argues such evidence “has no bearing on

12

any of the relevant events[ since h]e was not present at the apartment

13

at the time of the shooting and [is] not currently actively involved in

14

the life of any of the parties or witnesses.” Id. at 1:22-24.

15

at

the time of decedent’s death.

Defendants counter “evidence that decedent’s father was/is

16

a prisoner is clearly relevant to damages, and the nature and quality of

17

any relationship at issue.” (Defs.’ Opp’n 4:22-24.) Defendants “also

18

note the existence of decedent’s father is relative to whether Plaintiff

19

has standing to pursue claims on behalf of decedent.” Id. at 4 n.1.

20

Plaintiff replies, “[the decedent’s] father is not a plaintiff

21

and is not seeking damages[;] . . . the nature and quality of [his

22

relationship with decedent] is not at issue.” (Pl.’s Reply 2:15-16.)

23

Defendants

have

not

shown

that

24

incarceration

25

the

decedent’s

father’s

standing. Therefore, this motion is GRANTED.

is

relevant

to

26

Plaintiff

damages

or

Plaintiff’s

from

referencing

Motion in Limine No. 3

27

Plaintiff’s

28

seeks

“to

preclude

defendants

criminal records of any other witness or potential witness unless there
2

1

was a conviction for dishonesty such that it would put that witness[’s]

2

credibility

3

“Plaintiff fails to delineate any specific convictions, misdemeanor or

4

felonies that she seeks to exclude, much less any specific witness[,]”

5

and “absent such specifics, Defendants cannot reasonably respond as to

6

how

7

prejudicial, nor can the court reasonably fashion any order.” (Defs.’

8

Opp’n 5:7-10.)

any

9
10
11

in

issue.”

unspecified

(Pl.’s

MILs

convictions

are

1:25-27.)

indeed

Defendants

truly

rejoin,

irrelevant

or

It is unclear what evidence is involved in this motion,
therefore, it is DENIED.
B.

Defendants’ Motions in Limine

12

Motion in Limine No. 1

13

Defendants

seek

to

exclude

“any

reference,

question,

or

14

testimony

15

investigations,

16

Department, including any such records of the Defendants.” (Defs.’ MILs

17

1:25-28.) Defendants argue:

18
19
20
21

pertaining
or

to

any

citizen

officer’s
complaints

personnel

records,

concerning

the

internal
Sheriff’s

any information from the above-referenced sources
is irrelevant to the issues in this matter;
particularly because the standards used by the
Sheriff’s
Department
in
determining
whether
discipline is appropriate are not the same as the
standards that must guide the Court and the trier
of fact in determining whether a violation of 42
U.S.C. § 1983 has occurred.

22
23

Id. at 2:8-12. Defendants further argue such evidence is “character

24

evidence,” which is inadmissible under Federal Rule of Evidence (“Rule”)

25

404 “to prove the conformity of conduct therewith[;]” “constitute[s]

26

inadmissable hearsay[;]” and should be excluded under Rule 403. Id. at

27

1:28-2:5, 2:13-14, 2:25-27.

28
3

1

Plaintiff counters:

2

[D]efendants’ personnel records are pertinent to
prior similar acts, their history and behavior and
credibility. A history of excessive force or a
history of untruthfulness in reporting is probative
and should be permitted. It is not the discipline
administered but the information that was provided
by the defendant in the investigation that is
relevant. Also, telling one story at one time and a
different story in testimony is grounds for proper
impeachment and should be permitted.

3
4
5
6
7
8
9

(Pl.’s Opp’n 1:16-21.)
The record lacks sufficient factual context for an in limine

10

ruling; therefore, this motion is DENIED.

11

Motion in Limine No. 2

12

Defendants seek to exclude evidence concerning “prior charges,

13

complaints or lawsuits versus the County of Sacramento, the Sacramento

14

County Sheriff’s Department or other County employees[,]” arguing such

15

evidence “is irrelevant to the issues in this case, would be unduly

16

prejudicial to Defendants, would mislead the jury and would necessitate

17

the undue consumption of time and resources.” (Defs.’ MILs 3:7-12.)

18

Plaintiff states in her Opposition that she does “not intend[]

19

to introduce evidence as to other complaints unless defendants choose to

20

make a Monell defense.” (Pl.’s Opp’n 1:22-24.)

21

The court previously granted partial summary judgment on

22

Plaintiff’s 42 U.S.C. § 1983 Monell claim in favor of Defendant County

23

of Sacramento and former Defendant Sheriff McGinness. (ECF No. 57, 4:2-

24

4.) Therefore, this motion is DENIED as moot.

25

Motion in Limine No. 3

26

Defendants

“request

an

order

excluding

any

references,

27

questions or testimony regarding Plaintiff’s opinion about whether

28

excessive force was used” under Rules 601, 701 and 702. (Defs.’ MILs
4

1

4:13-17, 4:20-21.) Defendants argue, “Plaintiff is a lay witness and

2

accordingly is not competent to opine on the question of whether the

3

force used on her son was excessive[.]” Id. at 4:18-19.

4

This motion is DENIED as moot since Plaintiff states in her

5

Opposition that she does “not intend[] to provide direct evidence

6

asserting her opinion as to whether the use of force was improper, but

7

she will state her observations in this regard.” (Pl.’s Opp’n 1:24-26.)

8

Motion in Limine No. 4

9

Defendants seek to exclude “any references, questions or

10

testimony regarding the decedent’s lost wages and loss of future earning

11

power.” (Defs.’ MILs 5:5-6.) Defendants argue, “[t]here is no evidence

12

showing [the decedent] completed high school, earned a GED, . . .

13

possessed

14

employment[,] . . . [or] had particular job prospects from which he or

15

Plaintiff could expect a definite amount of income[.]” Id. 5:10-13.

16

“Accordingly,” Defendants argue, “testimony as to the decedent’s lost

17

wages

18

evidentiary foundation.” Id. at 5:14-15. Defendants further argue,

19

Plaintiff is barred from proffering expert testimony on these subjects

20

at trial since she “did not disclose any expert witness . . . concerning

21

[the decedent’s] lost wages and future earning power.” Id. at 5:16-23.

22

Plaintiff states in her Opposition that she “is not making a

23

claim for [decedent’s lost wages], nor is she concerned about future

24

earning ‘power.’” (Pl.’s Opp’n 1:27-28.) “However,” Plaintiff states,

25

“an essential element of her damages is her assertion that she will no

26

longer have his contributions to her household or physical assistance.”

27

Id. at 1:28-2:2. Plaintiff further states “[n]o experts are being

or

a

particular

future

earning

skill

power

set

are

28
5

with

which

speculative

to

as

obtain

being

gainful

without

1

offered in this regard, unless for some as now unexpected rebuttal.” Id.

2

at 2:2-3.

3
4

The record lacks sufficient factual context for an in limine
ruling and is therefore DENIED.

5

Motion in Limine No. 5

6

Defendants seek to exclude evidence “regarding Plaintiff’s

7

post-shooting detention and her interactions with Sacramento County

8

representatives after decedent was shot, insofar as it relates to any

9

purported mistreatment of Plaintiff.” (Defs.’ MILs 6:5-8.) Defendants

10

state that they “anticipate Plaintiff will testify that after the

11

incident with decedent, she was detained in a vehicle for a period of

12

time, and/or she had multiple communications with various Sacramento

13

County representatives which she characterizes as being mistreated.” Id.

14

at 6:8-11. Defendants further state that they “also anticipate Plaintiff

15

or

16

‘misinformation’

17

regarding the location of her son’s body.” Id. at 6:11-13. Defendants

18

argue, “[o]n [the] basis” that the Complaint “does not include any

19

purported Fourth Amendment violation arising from her detention, nor any

20

claim

21

representatives[,] . . . such testimony or evidence is irrelevant.” Id.

22

at 6:15-17. Defendants further argue such evidence should be excluded

23

under Rule 403. Id. at 6:19-22.

others

for

will

offer
she

testimony

later

mistreatment

at

pertaining

received

the

from

hand

of

the

to

the

purported

Sheriff’s

Department

any

Sacramento

County

24

Plaintiff counters, “[t]he actions of the law enforcement

25

personnel after the shooting is an integral part of her treatment and

26

damages[,]” and she should be given “leeway for her to tell her whole

27

story as the actions of concealment indicate motivation and show the

28

beginning of the cover up of an intentional shooting.” (Pl.’s Opp’n 2:46

1

5, 2:7-8.) Plaintiff further rejoins, “the treatment of her, placing her

2

under arrest and confinement, [is] a separate Fourth Amendment violation

3

of her person, whether pled specifically or not.” Id. at 2:5-7.

4

Plaintiff

did

not

allege

a

Fourth

Amendment

claim

for

5

Defendants’ treatment of her in her Complaint, and the absence of such

6

a claim in the Final Pretrial Order precludes her from raising it at

7

trial. Fed. R. Civ. P. 16; United States v. First Nat’l Bank of Circle,

8

652 F.2d 882, 886(9th Cir. 1981) (stating, a party may not “offer

9

evidence or advance theories at the trial which are not included in the

10

[pretrial] order or which contradict its terms”). Further, Plaintiff has

11

not shown how evidence of her post-incident interactions with Defendants

12

is relevant to her existing Fourth Amendment excessive force, Fourteenth

13

Amendment familial relationship and state wrongful death claims, which

14

all relate to her son’s death. For the stated reasons, this motion is

15

GRANTED.

16

Motion in Limine No. 6

17

Defendants seek to exclude “any reference, questions, or

18

testimony pertaining to Plaintiff’s alleged emotional distress.” (Defs.’

19

MILs 7:4-5.) Defendants argue Ҥ 1983 does not specify the type(s) of

20

damages

21

association” claims; “[t]hus, district courts in California must look to

22

California law[,]” and “‘California cases have uniformly held that

23

damages for mental and emotional distress, including grief and sorrow,

24

are not recoverable in a wrongful death action.’” (Defs.’ MILs 7:8-13,

25

(quoting Krouse v. Graham, 19 Cal. 3d 59, 72 (1977)).) Defendants

26

further

27

Plaintiff’s

28

questions pertaining to Plaintiff’s emotional distress are irrelevant

recoverable”

argue

for

emotional

claims;

Fourteenth

distress

damages

“[c]onsequently,

7

Amendment

any

are

“loss

not

reference,

of

familial

recoverable

on

testimony,

or

1

and/or would confuse the issues and mislead the jury under [Rules] 402

2

and 403, respectively.” Id. at 7:14-20.

3

Plaintiff counters, “[e]motional distress damages are a part

4

of the violation of any person’s civil rights, Valetta McMurray’s as

5

well as her sons [sic].” (Pl.’s Opp’n 2:12-13.)

6

Under 42 U.S.C. § 1988, when federal law “[is] deficient in

7

the provisions necessary to furnish suitable remedies[,]” courts look to

8

state law, to the extent that state law “is not inconsistent with the

9

Constitution and laws of the United States[.]” 42 U.S.C. § 1988(a);

10

Robertson v. Wegmann, 436 U.S. 584, 588-589 (1978). “[O]ne specific area

11

not covered by federal law is that relating to the survival of civil

12

rights actions under § 1983 upon the death of either the plaintiff or

13

defendant.” Robertson, 436 U.S. at 589. However, Plaintiff’s Fourteenth

14

Amendment familial relationship claim is not a survival claim. Rather,

15

it is a claim “based on the related deprivation of [Plaintiff’s own]

16

liberty interest arising out of [her] relationship with [the decedent].”

17

Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 371 (9th Cir.

18

1998). And, “[h]arm due to mental and emotional distress is clearly

19

compensable under 42 U.S.C. § 1983, providing the plaintiff demonstrates

20

that [her] injury resulted directly from the [alleged constitutional

21

violation].”

22

Cir. 1986)(internal quotation marks and citation omitted); see also

23

Cotton v. City of Eureka, Case No. C 08-04386 SBA, 2010 WL 5154945, *15

24

(N.D. Cal. Dec. 14 2010)(denying Defendant’s motion in limine to exclude

25

evidence

26

alleged a Fourteenth Amendment loss of familial relationship claim).

27

Alexander v. City of Menlo Park, 787 F.2d 1371, 1376 (9th

concerning

Plaintiff’s

emotional

distress

when

For the stated reasons, this motion is DENIED.

28
8

Plaintiff

1
2

Motion in Limine No. 7

3

Defendants seek to exclude “evidence relating to Plaintiff’s

4

costs and attorney fees[,]” arguing the proper procedure to request fees

5

and expenses is “through a post-trial motion; not during trial itself.”

6

(Defs.’ MILs 7:25-8:2.)

7

This motion is GRANTED as moot since Plaintiff states in her

8

Opposition that she “is not intending to refer to attorney fees or case

9

costs she has incurred.” (Pl.’s Opp’n 2:14.)

10

Motion in Limine No. 8

11

Defendants seek to exclude “any reference, testimony, or

12

questions pertaining to [damages] incurred by other family members”

13

“because of [the decedent’s] death.” (Defs.’ MILs 8:10-11, 8:14-16.)

14

Defendants argue, “[the decendent’s] mother is the sole Plaintiff in

15

this

16

purportedly sustained emotional distress or incurred out-of-pocket costs

17

resulting from his death is irrelevant.” Id. at 8:11-14.

18

law

suit[;

t]herefore,

Plaintiff

states

in

that

her

other

members

Opposition:

of

[his]

“Plaintiff

family

does

not

19

contemplate asserting damages in favor of any other family members, but

20

should not have to preclude them from mentioning their loss in a general

21

way.” (Pl.’s Opp’n 2:17-20.)

22

It is unclear what Plaintiff means when she contends she

23

should not be precluded from mentioning other family member’s “loss in

24

a general way.” Further, Plaintiff has not shown that evidence of other

25

family member’s damages incurred as a result of the decedent’s death are

26

relevant to her claims. Therefore, this motion is GRANTED.

27
28
9

1

Motion in Limine No. 9

2

Defendants seek to exclude “testimony from witnesses Yanae

3

Lee, Vivian Baker, and Amber Jackson.” (Defs.’ MILs 8:20-22.) Concerning

4

Vivian Baker and Amber Jackson, Defendants state in relevant part as

5

follows:

6

No currently available information or evidence
suggests how Vivian Baker or Amber Jackson are able
to contribute to Plaintiff’s case. Specifically,
neither were first-hand observers of the incident.
. . .
Therefore these witnesses are foreclosed
from offering their testimony under [Rules] 601,
602, and 701. . . . Plaintiff certainly did not
attempt to disclose or qualify them as expert
witnesses under [Rule] 702 and therefore cannot
permissibly solicit their opinion in any regard.

7
8
9
10
11
12

Id. at 8:24-9:8. Defendants also argue that to the extent Plaintiff

13

“intends

14

discussions they had with Plaintiff or other persons concerning the

15

incident[,]”

16

constitute clearly inadmissible hearsay. Id. at 9:9-18.

17
18
19
20
21
22
23
24
25
26
27
28

to

call

such

these

persons

testimony

as

would

be

witnesses

merely

irrelevant,

to

recount

redundant,

and

Regarding Yanae Lee, Defendants summarized her deposition
testimony as follows:
Yanae is Plaintiff’s niece and decedent’s cousin.
On the morning of the incident just prior thereto,
Yanae was present at her mother’s home, Shirley
Lee. Shirley is Plaintiff’s sister. Yanae was
sitting next to her mother on the couch, during
which time her mother was on the phone. Yanae was
unable to hear what each of them were saying to her
mother over the receiver. Shirley was consoling
and/or praying regarding the loss of decedent’s
younger cousin. Shirley abruptly stood up and
dropped the phone to the ground. Yanae picked up
the phone and place[d] it to her ear in time to
hear what she believed to be two gunshots. She and
her mother then immediately drove to Plaintiff’s
residence and observed multiple police cars, two of
which contain[ed] Plaintiff and Arlandis. Yanae
observed decedent - who had apparently already
passed away by this time - being wheeled off on a
gurney. Yanae reached out for decedent but was
restrained by an officer. She and her mother did
10

1

not leave the scene of the incident until hours
later, after dark.

2
3

Id. at 9:20-10:4. Defendants argue Yanae Lee “was not a first-hand

4

observer of the events leading up to the decedent’s death nor the

5

shooting itself[,]” and “is therefore unable to offer evidence which

6

would support Plaintiff’s claims[.]” Id. at 10:5-8. Defendants further

7

argue, “[t]o the extent [Yanae Lee’s] testimony is sought to describe

8

her mother’s phone conversation, such testimony is hearsay, irrelevant,

9

and would be redundant to Shirley Lee’s testimony and would additionally

10

constitute inadmissible hearsay.” Id. at 10:8-10.

11

Plaintiff opposes the motion, rejoining as follows:

12

All [three women] have pertinent testimony to
provide about the plaintiff and the decedent. They
are not lacking in competence and may be called to
provide testimony about plaintiff’s reputation for
truthfulness. Yanae Lee was present while her
mother Shirley Lee was talking to [the decedent]
during the incident. She heard her mother’s part of
the conversation and picked up the phone and heard
the gunshots. She was first hand even if not on the
scene. There is nothing inadmissible about her
observations
during
the
phone
call
or
her
observations at the crime scene which she had
reached while decedent was still present. Whether
he was alive at the time and still suffering is
pertinent to the wrongful death action.

13
14
15
16
17
18
19
20
21
22

(Pl.’s Opp’n 2:21-28.)
The record lacks sufficient factual context for an in limine
ruling; therefore, the motion is DENIED.

23

Motion in Limine No. 10

24

Defendants seek to exclude “any reference, testimony, or

25

questions pertaining to any costs associated with decedent’s funeral.”

26

(Defs.’ MILs 10:17-18.) Defendants state: “In short, Plaintiff did not

27

actually incur those costs[; r]ather, funds for the funeral were raised

28

by the proceeds earned from a car wash and fish-fry event put on by the
11

1

entire family.” Id. at 10:18-20. Defendants argue: “[since] Plaintiff

2

did not pay for the cost of [the] funeral, she is not entitled to

3

recover the cost of the funeral as damages[; therefore], any reference,

4

testimony, or questions pertaining to the same are irrelevant[.]” Id. at

5

10:20-25.

6

Plaintiff

counters:

“[t]here

were

funeral

costs.

Whether

7

plaintiff paid them directly or with the help of the labor and money of

8

others is not pertinent any more than if she had an insurance policy for

9

that.” (Pl.’s Opp’n 3:1-3.)

10

Defendants provide no authority to support their conclusory

11

argument

12

decedent’s funeral as damages since they were paid by a third party.

13

Therefore, this motion is DENIED.

14

Motion in Limine No. 11

15

Defendants seek to exclude “all post-shooting or autopsy

16

photographs of the decedent.” (Defs.’ MILs 11:5-6.) Defendants state

17

that they “do not dispute the fact that [the decedent] died from being

18

shot[,]” and argue “[p]hotographs of decedent taken after his death are

19

of

20

constituted excessive force or wrongful death, or violated Plaintiff’s

21

right to familial association[.]” Id. at 11:7-9. “In particular,”

22

Defendants argue:

23
24
25
26

no

that

Plaintiff

relevance

toward

is

the

not

entitled

resolution

to

of

recover

whether

the

such

the photographs in and of themselves will not
elucidate whether the amount of force used on the
decedent was objectively reasonable, particular[ly]
in that Plaintiff did not disclose any expert
witnesses[; n]or would such photographs clarify the
question of whether Deputy Bustamante’s actions
shocked the conscience or were deliberately
indifferent.

27
28
12

costs

of

shooting

1

Id. at 11:9-13. Defendants also argue the photographs should be excluded

2

under Rule 403. Id. at 11:16-23.

3

Plaintiff rejoins that post mortem photographs “relate [to]

4

method of injury, trajectory, and other matters to determine excessive

5

force.”

6

photographs “are not necessarily so gruesome a jury could not handle

7

them and are no more likely to inflame a jury by their being shown than

8

the fact of the defendants shooting an unarmed man after they tapered

9

him into stupification[, and] . . . can be suitably redacted to minimize

10

Opp’n

3:4-5.)

Plaintiff

further

argues

that

the

the risk of undue prejudice.” Id. at 3:5-8.

11
12

(Pl.’s

The record lacks sufficient factual context for an in limine
ruling; therefore, the motion is DENIED.

13

Motion in Limine No. 12

14

Defendants seek to exclude “evidence pertaining to decedent’s

15

hedonic

16

precludes them in survivorship actions, and California law applies in

17

the “context of a decedent’s surviving civil rights action under section

18

1983.” (Defs.’ MILs 12:5-12.) Defendants further argue, “[g]iven that

19

Plaintiff is precluded from collecting hedonic damages, any reference,

20

question, or testimony relating to the decedent’s pain, suffering, and

21

loss

22

Defendants also argue such evidence is “barred by [Rule] 403.” Id. at

23

20-23.

of

and/or

the

‘right

enjoyment

to

of

life’

life

damages,”

are

arguing

irrelevant.”

California

Id.

at

law

12:18-20.

24

Plaintiff states in her Opposition that “[h]edontic [sic]

25

damages are not being sought.” (Pl.’s Opp’n 3:11.) However, Plaintiff

26

also states that “[i]f it is shown that decedent had survived for a

27

short period, plaintiff [and Yanae Lee] should be allowed to introduce

28

evidence of the pain [they] saw on his face.” Id. at 3:9-11.
13

1

The Ninth Circuit defines “hedonic damages” as damages “‘for

2

the loss of the pleasure of being alive.” (Mark H. v. Lemahieu, 513 F.3d

3

922, 930 n.6 (9th Cir. 2008)(quoting Black’s Law Dictionary 417 (8th ed.

4

2004)). However, Defendants defined “hedonic damages” in this motion as

5

“those attributable to pain, suffering, and loss of the enjoyment of

6

life.” (Defs.’ MILs 12 n.1 (citing Garcia v. Sup. Ct., 42 Cal. App. 4th

7

177, 180 (1996)). Defendants’ arguments and citations to authority in

8

this motion further support that they intended this motion to include a

9

request to exclude any evidence of the decedent’s pain and suffering.

10

Therefore, the court construes the scope of this motion in limine to

11

include

12

addition to the decedent’s “loss of the pleasure of being alive.”

evidence

concerning

the

decedent’s

pain

and

suffering

in

13

Since Plaintiff is not seeking hedonic damages, that portion

14

of Defendants’ motion is DENIED as moot. The remainder of Defendants’

15

motion is addressed below.

16
17
18
19
20

Section 1983 does not address survivor claims or
any appropriate remedies. Therefore, courts must
look to state law, to the extent that state law is
not inconsistent with the Constitution and the laws
of the United States. In doing so, courts must
remain mindful that the purpose of the Federal
Civil Rights Act is to (1) deter official
illegality, and (2) adequately compensate parties
for
injuries
caused
by
the
depravation
of
constitutional rights.

21
22
23
24
25
26
27
28

Federal courts in the Eastern District of
California
have
generally
concluded
that
California’s survival statute applies to actions
brought under § 1983 and bars recovery of emotional
distress by a successor-in-interest. The courts
that have discussed the issue have reasoned that
disallowing the recovery of emotional distress
would not meaningfully diminish the deterrent
effect of a § 1983 action. Moreover, courts have
concluded that applying California’s bar against
the recovery of emotional distress would not deny
an injured party compensation because parties may
still recover damages through a wrongful death
action.
14

1

Walsh v. Tehachapi Unified School Dist., --- F. Supp. 2d ----, 2011 WL

2

5156791, at *16 (E.D. Cal. 2011)(internal quotation marks and citations

3

omitted); see also Estate of Contreras ex rel. Contreras v. Cnty. of

4

Glenn, 725 F. Supp. 2d 1151, 1155-56 (E.D. Cal. 2010)(compiling cases).

5

Therefore, “in light of the damages that are provided by the California

6

survival and wrongful death statutes, the [C]ourt finds that state law

7

is not inconsistent with the Constitution and laws of the United States.

8

Because state law does not permit recovery of a decedent’s pain and

9

suffering,” Plaintiff may not recover for any pain and suffering the

10

decedent experienced prior to death.

11

185 F. Supp. 2d 1128, 1133 (E.D. Cal. 2002). Accordingly, any evidence

12

of the decedent’s pain and suffering is irrelevant to Plaintiff’s

13

claims.

14
15

Venerable v. City of Sacramento,

For the stated reasons, Defendants’ motion to exclude evidence
concerning the decedent’s pain and suffering is GRANTED.

16

Motion in Limine No. 13

17

Defendants seek to exclude “all media coverage concerning

18

decedent’s shooting death, as well as media coverage generally related

19

to the Sheriff Department’s use of force[,]” arguing “such evidence is

20

irrelevant, hearsay, and prejudicial.” (Defs.’ MILs 13:5-7.)

21

Plaintiff states in her Opposition: “No mention of media

22

coverage is intended unless defendants’ assert and introduce evidence of

23

a Monell defense.” (Pl.’s Opp’n 3:13-14.)

24

Since the court granted Defendants partial summary judgment on

25

Plaintiff’s 42 U.S.C. § 1983 Monell claim, this motion is DENIED as

26

moot.

27
28
15

1

Motion in Limine No. 14

2

Defendants

request

an

order

excluding

“certain

newspaper

3

clippings on which handwritten notations appear.” (Defs.’ MILs 13:25-

4

27.) Defendants argue the newspaper clippings should be excluded under

5

Federal Rule of Civil Procedure 37(c)(1) since “[they] never received

6

such newspaper clippings during discovery[,]” and Plaintiff had “a duty

7

to disclose all documents [she] may use to support [her] claims or

8

defenses” under Federal Rule of Civil Procedure 26. Id. at 14:2-9

9

(internal brackets, internal quotation marks and citation omitted).

10

Defendants further argue that the newspaper clippings are irrelevant and

11

contain unauthenticated handwriting notations. Id. at 13:27-14:1, 14:9-

12

18.

13

Plaintiff counters as follows:

14

[Plaintiff] has newspaper clippings that decedent
was holding and referencing and has so informed
defendants. They may or may not have been provided
while plaintiff was in pro per. Any introduction of
them will go to decedent’s state of mind and not to
the truthfulness or meaning of the specific
content.

15
16
17
18

(Pl.’s Opp’n 3:16-19.)

19

Federal Rule of Civil Procedure 26 requires the disclosure of

20

“a copy--or a description by category and location--of all documents,

21

electronically

22

disclosing party has in its possession, custody, or control and may use

23

to support its claims or defenses, unless the use would be solely for

24

impeachment[.]” Fed. R. Civ. P. 26(a)(ii)(emphasis added).

“Rule

25

26(e)(1)(A)

prior

26

disclosures ‘in a timely manner’ when the prior response is ‘incomplete

27

or inaccurate.’”

28

F.3d 1175, 1179 (9th Cir. 2008)(quoting Fed. R. Civ. P. 26(e)(1)(A)).

stored

requires

information,

disclosing

and

parties

tangible

to

things

supplement

that

their

the

Hoffman v. Construction Protective Servs., Inc., 541

16

1

“If a party fails to provide information . . . as required by Rule 26(a)

2

or (e), the party is not allowed to use that information . . . to supply

3

evidence . . . at trial, unless the failure was substantially justified

4

or is harmless.” Fed. R. Civ. P. 37(c)(1).

5

Defendants do not address in this motion whether or not

6

Plaintiff properly disclosed a description of the newspaper clipping as

7

permitted by Rule 26; they only contend the document was not produced.

8

Therefore, they have not shown that excluding its admission at trial is

9

an

appropriate

sanction

under

Rule

37.

Further,

the

record

lacks

10

sufficient factual context for an in limine ruling on Defendants’

11

remaining relevance and authentication arguments. Therefore, this motion

12

is DENIED.

13

Motion in Limine No. 15

14

Defendants seek to exclude any “photographic and/or video

15

reenactments of the incident or scene thereof for exhibition at trial.”

16

(Defs.’ MILs 14:23-24.)

17

such reenactment media as required by Federal Rule of Civil Procedure,

18

Rule

19

Procedure, Rule 37(c)(1), Plaintiff cannot later offer the same at

20

trial.” Id. at 14:25-28. Defendants further argue such reenactments are

21

inadmissible under Rule 403, and “[t]he verbal statements contained in

22

any video footage, as well as the non-verbal statements contained in any

23

photographs, would constituted inadmissible hearsay.” Id. at 15:1-2,

24

15:10-12.

26(a)(1)(A)(ii)[;

Defendants argue, “Plaintiff did not disclose

a]ccordingly,

under

Federal

Rule

of

Civil

25

Plaintiff states in her Opposition that she “is proposing to

26

provide a reenactment video for illustrative purposes[,]” but “[i]t has

27

not been created as yet and thus has not been made available for

28

previewing.” (Pl.’s Opp’n 3:20-23.)
17

1

It is unclear what Plaintiff references as a reenactment video

2

and whether what Plaintiff characterizes as an illustrative purpose

3

justifies

4

considerations.

5

limine ruling, and is therefore DENIED.

6

Dated:

use

of

the

reference

evidence

in

light

of

9

403

However, this motion has not been shown ripe for an in

January 19, 2012

7
8

Rule

GARLAND E. BURRELL, JR.
United States District Judge

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
18