Hall et al v. City of Fairfield et al
Filing
168
ORDER ON MOTIONS IN LIMINE signed by Judge Garland E. Burrell, Jr on 4/4/12. (Mena-Sanchez, L)
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2
3
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5
IN THE UNITED STATES DISTRICT COURT
6
FOR THE EASTERN DISTRICT OF CALIFORNIA
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8
Markus M. Hall, Monique G.
Rankin, Lindsey K. Sanders,
9
Plaintiffs,
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11
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13
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15
v.
City of Fairfield, Officer Nick
McDowell, Officer Chris Grimm,
Officer Tom Shackford, Officer
Zack Sandoval, and Sergeant
Steve Crane,
Defendants.
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2:10-cv-00508-GEB-DAD
ORDER ON MOTIONS IN LIMINE
16
The parties move in limine for an order seeking to preclude
17
the admission of certain evidence at trial. Each motion is addressed
18
below.
19
A.
Plaintiffs’ Motions in Limine
20
Motion in Limine No. 1
21
Plaintiffs seek to exclude “any evidence or testimony that
22
[Defendants] conducted an independent investigation by interviewing
23
other witnesses.” (Pls.’ Mot. in Limine (“MIL”) #1, 2:4-7.) Plaintiffs
24
argue, “Defendants have admitted in their responses to Requests for
25
Admissions that they did not interview any customers or employees at the
26
restaurant other than Mr. Young, who filed the citizen’s arrest[;]”
27
therefore “the Court should . . . exclude any evidence or testimony” to
28
the contrary. Id. at 3:4-11.
1
1
2
Defendants filed a joint Opposition to Plaintiffs’ first,
second and ninth motions in limine, arguing:
3
[these in limine motions] argue essentially the
same thing, exclusion of any testimony or evidence
as to the information, knowledge, rationale and
reasoning leading to the arrest of Plaintiffs. Not
only are Plaintiffs’ arguments impermissibly vague,
but such arguments are improper and unsupported by
any law or statute. Further, the law that
Plaintiffs have cited is inapplicable to the
current case at issue. Finally, Plaintiffs[’]
arguments are identical to those previously
submitted in their Motion for Summary Judgment,
which this Court denied in its entirety.
4
5
6
7
8
9
10
(Defs.’ Opp’n to Pls.’ MIL’s 1, 2 and 9, 2:5-11.)
11
“Federal Rule of Civil Procedure [(“Rule”)] 36(b) provides
12
that any matter admitted in response to a request for admission is
13
‘conclusively
14
amendment of the admission.” 999 v. C.I.T. Corp., 776 F.2d 866, (9th
15
Cir.
16
inconsistent with a Rule 36 admission is properly excluded.” Id. at 869-
17
70. “[A] party cannot overcome a binding admission by offering evidence
18
that contradicts the admission[.]” Shepherd v. Baca, No. CV 03-02923 JVS
19
(AJW), 2009 WL 975845, at *3 (C.D. Cal. Apr. 8, 2009).
established’
1985)(quoting
Fed.
unless
R.
the
Civ.
P.
court
36).
permits
withdrawal
Further,
or
“[e]vidence
20
Although Defendants cannot introduce evidence contrary to
21
matters they admitted under Rule 36, the scope of Plaintiffs’ motion is
22
unclear; Plaintiffs do not specify what specific anticipated testimony
23
they seek to exclude. Since the Court cannot determine whether the
24
evidence sought to be excluded contradicts Defendants’ admissions,
25
Plaintiffs’ motion is DENIED.
26
Motion in Limine No. 2
27
Plaintiffs seek to exclude “any evidence or testimony that
28
[Defendants] conducted an independent investigation by independently
2
1
investigating the . . . knowledge” of the citizen who filed the
2
citizen’s arrest, In-N-Out Burger restaurant manager Marc Young. (Pls.’
3
MIL
4
stipulated that . . . only [Defendant] McDowell spoke to Marc Young[,]”
5
and Mr. Young testified in deposition that he and McDowell did not
6
exchange any information concerning “what if anything Defendants had
7
done” to warrant their arrest. Id. at 3:4-4:2. Therefore, Plaintiffs
8
argue the Court should exclude any evidence to the contrary. Id. at 4:3-
9
6.
#2,
2:4-7.)
In
essence,
Plaintiffs
argue
“[t]he
parties
have
10
It is unclear what the phrase “independently investigating the
11
citizen witness’ knowledge” means in this motion. Further, Plaintiffs
12
have not shown that a witness’s deposition testimony precludes the
13
admission of evidence to the contrary. See Wright v. Fed. Bureau of
14
Investigation, 241 Fed. Appx. 367, 2007 WL 1879794, at *1 (9th Cir.
15
2007)(stating “[s]tatements made at a deposition, unlike statements made
16
in
17
deponent”). For the stated reasons, Plaintiffs’ motion is DENIED.
response
to
requests
for
admission,
are
not
binding
on
the
18
Motion in Limine 3
19
Plaintiffs move to exclude witnesses Officer Joel Orr, Officer
20
21
22
23
24
A. Carreon, and Officer Solio from testifying at trial, arguing they
were [not] disclosed in discovery . . . , and
Plaintiffs have had no opportunity to discover[]
further information about [them] since they were
only disclosed on February 28, 2012[, when] the
parties
filed
their
Amended
Joint
Pretrial
Statement[,] and the Court’s [Status Order]
required that all discovery be completed by
September 21, 2011.
25
26
(Pls.’ MIL #3, 2:4-16.)
27
Defendants counter,
28
Each of the three officers was identified within
the documents produced to Plaintiffs in response to
3
1
4
both the Rule 26 Disclosures (see, for example,
Plaintiffs’ proposed Exhibit 6, police report for
subject incident) as well as in response to
Plaintiffs’ request for production. Each of those
names is prominently contained on numerous pages
within those documents and has been addressed
during deposition by the Defendant officers.
5
(Defs.’ Opp’n to Pls.’ MIL #3, 2:5-12.) Defendants further argue, “there
6
is no duty to supplement any prior disclosures since Plaintiffs have
7
previously received the identity of those officers as contained both
8
within the police report and as testified to in deposition.” Id. at
9
2:10-12.
2
3
10
Plaintiffs reply:
11
Other than the police report, which Plaintiffs have
re-reviewed and still cannot find any reference to
these officers, Defendants have provided absolutely
no evidentiary support for their contention that
these officers’ names are contained within, let
alone prominently contained within, the documents
produced by Defendants and were addressed in the
deposition testimony of the Defendant officers.
12
13
14
15
16
(Pls.’ Reply Re: MIL #3, 2:15-19.)
17
Rule 26 requires the disclosure of “the name . . . of each
18
individual likely to have discoverable information - along with the
19
subjects of that information - that the disclosing party may use to
20
support its claims or defenses, unless the use would be solely for
21
impeachment[.]” Fed. R. Civ. P. 26(a)(I).
22
disclosing parties to supplement their prior disclosures ‘in a timely
23
manner’ when the prior response is ‘incomplete or inaccurate.’” Hoffman
24
v.
25
2008)(quoting Fed. R. Civ. P. 26(e)(1)(A)).
Constr.
Prot.
Servs.,
Inc.,
541
“Rule 26(e)(1)(A) requires
F.3d
1175,
1179
(9th
Cir.
26
“If a party fails to . . . identify a witness as required by
27
Rule 26(a) or (e), the party is not allowed to use that . . . witness to
28
supply evidence . . . at trial, unless the failure was substantially
4
1
justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Rule 37(c)(1), was
2
“implemented in the 1993 amendments to the Rules, [and] is a recognized
3
broadening of the sanctioning power. The Advisory Committee Notes
4
describe it as a ‘self-executing,’ ‘automatic’ sanction to ‘provide a
5
strong inducement for disclosure of material[.]’” Yeti by Molly, Ltd. v.
6
Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001)(quoting Fed.
7
R. Civ. P. 37 advisory committee’s note (1993)). “[T]he burden is on the
8
party
9
justification].” Id. at 1107.
facing
sanctions
to
prove
harmlessness
[or
substantial
10
In essence, Defendants argue their production of documents,
11
which reference these three witnesses, satisfied their obligation to
12
identify them as potential witnesses.
13
“realistically have been expected to recognize [these officers] as . .
14
. potential witness[es] just because [their] name[s] [may have] appeared
15
in some of the . . . documents produced in this case.” Monsanto Co. v.
16
Bayer Bioscience N.V., No. 4:00CV01915 ERW, 2005 WL 5989796, at *21
17
(E.D. Mo. Oct. 28, 2005); see also Mehus v. Emporia State Univ., 326 F.
18
Supp.
19
disclosing a document, [the party] has sufficiently disclosed its intent
20
to ‘call the authors as witnesses at trial to authenticate the complaint
21
documents’”). Since Defendants have not shown that their failure to
22
identify Officers Orr, Carreon, and Solio as witnesses was harmless or
23
substantially justified, Plaintiffs’ motion is GRANTED.
2d
1213,
1218
(D.
Kan.
However, Plaintiffs cannot
2004)(rejecting
argument
“that
by
24
Motion in Limine No. 4
25
Plaintiffs seek to exclude Defendants’ expert witness, Gregg
26
Stuchtman, arguing “he was not disclosed by Defendants, who have only
27
disclosed one expert, Don Cameron, in Defendants’ Rebuttal Expert
28
Witness Disclosure.” (Pls.’ MIL #4, 2:6-10.) Plaintiffs further argue,
5
1
“by listing Mr. Stuchtman in the Amended Joint Pretrial Statement,
2
Defendants
3
Court[,]” which denied Defendants’ “motion to supplement their expert
4
witness disclosure to add a forensic video expert.” Id. at 2:11-17.
are
attempting
to
circumvent
an
earlier
order
by
the
5
Defendants “do not dispute that Mr. Gregg Stuchtman should not
6
be called in Defendants’ case in chief[; i]nstead, Mr. Stuchtman is
7
intended to be called only as a rebuttal witness[.]” (Defs.’ Opp’n to
8
Pls.’ MIL #4, 2:5-7.) Defendants argue “such testimony is expressly
9
admissible and authorized when offered in rebuttal to prior trial
10
testimony.” Id. at 2:6-7.
11
“Rule 26 requires parties to disclose the identity of any
12
expert witness ‘accompanied by a written report’ detailing the opinions
13
the expert will express and the data on which he or she will rely[.]”
14
Jarritos, Inc. v. Reyes, 345 Fed. Appx. 215, 217 (9th Cir. 2009)(quoting
15
Fed. R. Civ. P. 26(a)(2)). “Rule 26(a)(2)(D) [prescribes] that the
16
[default] deadline for disclosing rebuttal experts is . . . 30 days
17
after the expert witness disclosure deadline.” Allstate Ins. Co. v.
18
Nassiri, No. 2:08-cv-00369-JCM-GWF, 2011 WL 2975461, at *11 (D. Nev.
19
July 21, 2011). That same rule permits the trial court to alter the
20
timing
21
26(a)(2)(D)(“A party must make these disclosures at the times and in the
22
sequence
23
disclosure implicates Federal Rule of Civil Procedure 37(c)(1).” AZ
24
Holding, LLC v. Frederick, No. CV-08-0276-PHW-LOA, 2009 WL 2432745, at
25
*4 (D. Ariz. Aug. 10, 2009).
and
sequence
that
the
of
court
expert
disclosures.
orders.”).
Further,
Fed.
R.
Civ.
“[u]ntimely
P.
expert
26
Notwithstanding Defendants’ conclusory contentions to the
27
contrary, rebuttal expert witnesses must be timely disclosed. And
28
Defendants have provided no other justification for not disclosing Gregg
6
1
Stuchtman as an expert witness. Since Defendants have not shown that
2
their failure to disclose Gregg Stuchtman as an rebuttal expert witness
3
was harmless or substantially justified under Rule 37(c)(1), Plaintiffs’
4
motion is GRANTED.
5
Motion in Limine No. 5
6
Plaintiffs seek to “exclud[e] expert witnesses from offering
7
opinions not disclosed in discovery.” (Pls.’ MIL #5, 2:4-5.) Although
8
the requested exclusion is not particular to any expert or anticipated
9
testimony, Plaintiffs’ argument in support of the motion specifically
10
concerns Defendants’ rebuttal expert witness, Don Cameron. Id. at 2:7-
11
19. Plaintiffs argue:
12
13
14
15
16
17
18
19
On the issue of whether the Defendant officers had
probable cause to arrest Plaintiffs, Mr. Cameron’s
opinion was limited to his statement that the
officers ‘had probable cause to arrest [Plaintiffs]
at the request of Mr. Young . . . [.]’ Because Mr.
Cameron’s opinion is that the Defendant officers
could arrest Plaintiffs based on the request of
[Mr. Young], alone, he should be excluded from
offering any opinion at trial that the Defendant
officers conducted an independent investigation by
either: (1) independently investigat[ing] the basis
of
the
citizen
witness[’]
knowledge;
or
(2)interview[ing] other witnesses.
Id. at 2:12-19.
20
Defendants counter, “Plaintiffs’ Motion in Limine is somewhat
21
cryptic and does not identify the exact testimony being challenged.”
22
(Defs.’ Opp’n to Pls.’ MIL #5, 2:5-6.) Defendants further argue:
23
24
25
26
27
28
[Plaintiffs]
seem[]
to
suggest
that
since
Defendants’ expert did not offer a verbatim
transcript of his anticipated testimony, he is
precluded from testifying at trial to anything
outside of that report. However, Plaintiffs’
position is in error and contrary to current law.
As this Court is aware, the purpose of an expert’s
Rule 26 report is to divulge substance of opinion
[sic], not to replicate every word that the expert
might say; the report is not required to provide
sufficient detail so an opponent will be prepared
7
1
to cross-examine, rebut and offer competing expert
testimony.
2
3
Id. at 2:6-11.
4
To the extent Plaintiffs’ motion specifically concerns expert
5
Don Cameron’s testimony on the issue of whether Defendants had probable
6
cause to arrest Plaintiffs, it is DENIED since Plaintiffs have not shown
7
that the testimony sought to be excluded was not encompassed within his
8
expert report. See Speedtrack v. Wal-Mart Stores, Inc., No. C 06-7336
9
PJH, 2012 WL 581338, at *11 (N.D. Cal. Feb. 22, 2012)(denying a motion
10
to strike portions of an expert’s declaration when they merely provided
11
more detail to opinions expressed in expert report and during his
12
deposition). “The purpose of [Rule 26(a)(2)(B)] is to eliminate unfair
13
surprise to the opposing party. But it does not limit an expert's
14
testimony simply to reading his report[.] The rule contemplates that the
15
expert will supplement, elaborate upon, and explain his report in his
16
oral testimony.” Muldrow ex rel. Estate of Muldrow v. Re-Direct, Inc.,
17
493 F.3d 160, 167 (D.C. Cir. 2007)(internal quotation marks, citation
18
and brackets omitted).
19
The remainder of Plaintiffs’ motion is “over-broad[,]” and is
20
therefore DENIED. In re Homestore.com, Inc., No. CV 01-11115 RSWL (CWx),
21
2011 WL 291176, at *13 (C.D. Cal. Jan. 25, 2011)(denying motion in
22
limine where party did “not provide[] the Court with the specific
23
evidence claimed to be inadmissible”); see also Weiss v. La Suisse,
24
Society D’Assurances Sur La Vie, 293 F. Supp. 2d 397, 407-08 (S.D.N.Y.
25
2003)(denying
26
specificity[,]” stating “[n]o particular documents or testimony have
27
been identified in the motion”).
motion
to
exclude
28
8
evidence
for
a
“lack[]
of
1
Motion in Limine No. 6
2
Plaintiffs seek to exclude “evidence or testimony of Defendant
3
officers[’]
4
relevancy, as the Court has dismissed Plaintiff[s’] Monell claim against
5
the City if Fairfield[.]” (Pls.’ MIL #6, 2:4-11.) However, Plaintiffs
6
further state that their motion “does not seek to exclude evidence or
7
testimony that Defendant officers arrested Plaintiffs using techniques
8
in which they were trained on, but rather, to exclude evidence and
9
testimony that the manner in which the Defendant officers arrested
10
Plaintiffs was appropriate based on their past performances reflected in
11
their training records.” Id. at 2:17-20.
12
13
training
records[,]”
arguing
“the[]
records
have
no
Since it is unclear what evidence is involved in this motion,
it is DENIED.
14
Motion in Limine No. 7
15
Plaintiffs move to “exclud[e] the introduction of documents
16
and other evidence requested but not produced in discovery.” (Pls.’ MIL
17
#7, 2:4-5.) This motion is “vague and overbroad[,]” and is therefore
18
DENIED. Lopez v. Chula Vista Police Dept., No. 07cv1272-WQH-BLM, 2010 WL
19
685014, at *7 (S.D. Cal. Feb. 18, 2010).
20
Motion in Limine No. 8
21
Plaintiffs
“move
for
an
order
excluding:
(1)
Non-party
22
witnesses from the courtroom while they are not under examination; (2)
23
Witnesses to whom 24 hours notice was not given prior to calling; (3)
24
Speaking objections; and (4) Stipulations of fact or contentions in the
25
presence of the jury.” (Pls.’ MIL #8, 2:4-8.)
26
Defendants “agree that [an order excluding non-party witnesses
27
from the courtroom when they are not testifying] is appropriate,” and
28
“agree that an order providing advance notice is appropriate, but
9
1
request the notice for any officer witnesses be increased to 48 hours.”
2
(Defs.’ Opp’n to Pls.’ MIL #8, 2:6-11.) Defendants object to Plaintiffs’
3
third and fourth requests as “overly vague[.]” Id. at 2:13-19.
4
A motion in limine is “any motion, whether made before or
5
during trial, to exclude anticipated prejudicial evidence before the
6
evidence is actually offered." Luce v. United States, 469 U.S. 38, 40
7
n.2 (1984). “The advantage of such motions is to avoid the obviously
8
futile attempt to unring the bell in the event a motion to strike is
9
granted in the proceedings before the jury." Briese v. Tilley, No. C
10
08-4233 MEJ, 2010 WL 3749442, at *4 (N.D. Cal. Sept. 23, 2010). Deciding
11
whether to grant the relief Plaintiffs request in this motion does not
12
further this purpose. Further, a ruling on Plaintiffs’ second request
13
appears unnecessary in light of Plaintiffs’ reply that they “do not
14
oppose Defendants’ [48 hour] modification.” (Pls.’ Reply re MIL #8,
15
2:13-15.)
16
For the stated reasons, Plaintiffs’ motion is DENIED, except
17
as to Plaintiffs’ request to exclude non-party witnesses from the
18
courtroom.
19
limine,” Federal Rule of Evidence 615 prescribes that “[a]t a party’s
20
request, the court must order [non-party] witnesses excluded [from the
21
courtroom] so that they cannot hear other witnesses’ testimony.” All
22
non-party witnesses will be excluded from the courtroom in accordance
23
with Federal Rule of Evidence 615.
24
Notwithstanding
Further,
that
this
notwithstanding
the
request
is
parties’
not
a
apparent
“motion
in
agreement
25
concerning witness notification, trial should proceed at a faster pace
26
than what the parties indicate; the Court will not permit unnecessary
27
and/or unreasonable delays.
28
10
1
Motion in Limine No. 9
2
Plaintiffs
seek
to
exclude
“evidence
or
testimony
that
3
[Plaintiffs] were arrested for violating Penal Code section 602.1(a)
4
based on their conduct or statements made after they were ordered to
5
leave
6
Plaintiffs argue, “Defendants cannot show that they had probable cause
7
to arrest Plaintiffs for violating Penal Code section 602.1(a) by
8
showing only that Defendants refused to leave the premises . . . after
9
being requested to leave[,]” therefore, “any evidence or testimony that
10
Plaintiffs were arrested for violating [section 602.1(a)] based on their
11
conduct or statements after they were ordered to leave the restaurant,
12
alone, is irrelevant and should be excluded.” Id. at 2:21-23, 3:4-6.
the
restaurant,
alone.”
(Pls.’
MIL
#9,
2:4-6.)
In
essence,
13
Plaintiffs’ motion involves law and motion issues filed after
14
the prescribed last hearing date for such matters. Therefore, it is
15
DENIED.
16
B.
Defendants’ Motions in Limine
17
Motion in Limine No. 1
18
Defendants request “an Order requiring the parties to provide
19
at least 48 hours’ notice of the identity of anticipated witnesses.”
20
(Defs.’ MIL #1, 2:1-4.) As discussed above concerning Plaintiffs’ Motion
21
in Limine No. 8, this is not the proper subject of an in limine motion,
22
and Defendants have not shown that a ruling is necessary. Further, the
23
request appears excessive and if granted, could interfere with the
24
progress of trial. For the stated reasons, Defendants’ motion is DENIED.
25
Motion in Limine No. 2
26
Defendants request “an Order excluding witnesses from the
27
Courtroom.”
(Defs.’
MIL
#2,
2:1-6.)
28
11
As
stated
above
concerning
1
Plaintiffs’ Motion in Limine No. 8, non-party witnesses will be excluded
2
from the courtroom in accordance with Federal Rule of Evidence 615.
3
Motion in Limine No. 3
4
Defendants seek to preclude “Plaintiffs from introducing,
5
offering evidence of, or making reference to any of the following: media
6
coverage of the City of Fairfield, its police department, its police
7
chief, police officers or any related matters; any prior civil cases
8
involving the City of Fairfield, its police department, its chief of
9
police or police officers[,]” arguing said evidence is irrelevant and
10
precluded by Federal Rule of Evidence 403. (Defs.’ MIL #3, 2:2-8, 2:18-
11
25.)
12
Plaintiffs counter:
13
It is unclear from Defendants’ motion what the term
“media coverage” refers to. If Defendants’ motion is
only intended to apply to traditional media, such as
newspaper articles, televised news reports, or
online news reports, Plaintiffs’ do not oppose
Defendants’ Motion in Limine No. 3. If, however,
Defendants’ motion is intended to include what has
been referenced in this case as the “YouTube video”
(a video taken by a third-party witness who
witnessed the events at issue in this action and who
uploaded the video to YouTube) Plaintiffs oppose
Defendants’ Motion in Limine No. 3.
14
15
16
17
18
19
20
(Pls.’ Opp’n to Defs.’ MIL #3, 2:10-16.)
21
To the extent Defendants’ motion encompasses the referenced
22
YouTube video, Defendants have not shown that it is not probative on
23
Plaintiffs’ claims, nor that it should be excluded under Federal Rule of
24
Evidence 403. Therefore, that portion of Defendants’ in limine motion is
25
DENIED. The remaining portion of the motion is DENIED as moot, since it
26
is unopposed.
27
28
12
1
Motion in Limine No. 4
2
Defendants
seek
to
exclude
“any
reference
to
any
prior
3
complaints of excessive force against the defendant officers and any
4
reference to any prior bad acts by these Defendant officers or any other
5
individual City of Fairfield police officer.” (Defs.’ MIL #4, 2:2-7.)
6
Defendants argue “any and all evidence of other complaints against the
7
Defendant officers . . . is irrelevant to prove Plaintiff’s claims[,]”
8
is “inadmissible character evidence proscribed by [Federal Rule of
9
Evidence] 404[,]” and is protected by certain state law privileges. Id.
10
at 3:6-8, 3:20-21, 4:25-6:11.
11
Plaintiffs respond:
12
It is unclear from Defendants’ motion whether
Defendants intend the term “investigation” to
include
the
Internal
Affairs
[(“I.A.)”]
investigation in this matter. If Defendants’ motion
does not include the [I.A.] investigation in this
matter, Plaintiffs’ do not oppose Defendants’
Motion in Limine No. 4. If, however, Defendants’
motion does include the [I.A.] Investigation in
this
matter,
Plaintiffs
oppose
Defendants’
Motion[.]
13
14
15
16
17
18
(Pls.’ Opp’n to Defs.’ MIL #4, 2:8-12.)
19
Defendants’ motion is DENIED as moot since it cannot be fairly
20
viewed to encompass the I.A. investigation concerning the allegations at
21
issue
22
Plaintiffs.
23
“conducted
24
conclusion, it is not referenced anywhere in the body of the motion.
25
Further, none of Defendants’ arguments made in support of the motion are
26
applicable to the I.A. investigation conducted in connection with the
27
subject incident. See e.g., Defs.’ MIL #4, 4:13-17 (“Plaintiffs cannot
28
introduce evidence of prior bad acts including, but not limited to,
in
this
action,
Although
in
and
the
Defendants
response
to
the
motion
is
reference
subject
13
otherwise
unopposed
the
investigation
I.A.
incident”
in
the
by
motion’s
1
prior complaints of veracity and force by the defendant officers . . .
2
to prove that the level of force used by any or all of the officers in
3
this case was excessive.”)(emphasis added).
4
Motion in Limine No. 5
5
Defendants seek to “prohibit[] the introduction of each of
6
their statements provided to the City during the [I.A.] investigation of
7
this incident[,]” arguing “such statements are privileged under Lybarger
8
v. City of Los Angeles, 40 Cal.3d 822 (1985) and were taken despite the
9
officers[’] attempts to exercise their rights as guaranteed by the
10
United States Constitution, including most notably the right to remain
11
silent.” (Defs.’ MIL #5, 2:2-8.) Defendants further argue, “there is
12
substantial other information available to Plaintiffs, including the
13
police
14
Plaintiffs will not be prejudiced by the exclusion of those interviews.”
15
Id. at 2:16-18.
16
reports
as
Plaintiffs
well
as
rejoin,
all
officers’
“Lybarger
.
.
depositions,
.
ha[s]
such
that
absolutely
no
17
application to this case[; t]he admissibility of the [I.A.] report and
18
statements made by the Defendant officers therein is governed by Rule
19
803(8) of the Federal Rules Evidence.” (Pls.’ Opp’n to Defs.’ MIL #5,
20
2:7-10.) Plaintiffs argue:
21
22
23
24
25
26
27
Lybarger is inapplicable on its face. In Lybarger,
the issue was whether a police officer could be
administratively
disciplined
for
refusing
to
cooperate in a criminal investigation of the police
officer. . . . Unlike Lybarger, this is a civil
action brought by Plaintiffs under state law and
under 42 U.S.C. §1983, not a criminal action
against the Defendant officers in which statements
they made in a criminal investigation cannot be
used against them in a subsequent criminal
proceeding.
Id. at 2:27-3:1.
28
14
1
Since Defendants have not shown that the holding in Lybarger
2
protects Defendants’ statements in this civil action, Defendants’ motion
3
is DENIED.
4
Motion in Limine No. 6
5
Defendants seek to exclude “testimony about the use of force
6
by individuals other than Plaintiff.” (Defs.’ MIL #6, 2:1-4.) Defendants
7
argue:
8
9
10
11
12
At least one other member of Plaintiffs’ group
was arrested by officers of the Fairfield Police
Department. That witness claims the force used on
her was excessive. However, she has not filed a
claim or brought a lawsuit. Thus, her testimony is
only designed to make the Defendant officers look
bad. This kind of evidence is wildly prejudicial,
not probative of any issue relevant to Plaintiffs’
claims and must be excluded under Federal Rules of
Evidence, Rules 402 and 403.
13
14
Id. at 2:5-9.
15
Plaintiffs rejoin,
16
22
Defendants have offered absolutely no support for
their contention that [the other member of
Plaintiffs’ group], if she is called as a witness,
should be precluded from testifying on the basis
that she may “make the Defendants officers look
bad.” [This individual] arrived in the same car
with the Plaintiffs at the In-N-Out Burger
restaurant, was with the Plaintiffs when they went
inside the restaurant and when the Defendant
officers arrived, interacted with the Defendant
officers inside the restaurant, and was with
Plaintiffs when they and she were arrested by the
Defendant officers.
23
(Pls.’ Opp’n to Defs.’ MIL #6, 2:13-19.) Plaintiffs argue, “[a]s such,
24
[her] testimony is relevant and admissible under Rules 401 and 402 of
25
the Federal Rules of Evidence[,] and . . .
26
cannot show that [this witness’] testimony would be prejudicial under
27
Rule 403 of the Federal Rules of Evidence.” Id. at 2:19-23.
17
18
19
20
21
28
15
Defendants have not and
1
Defendants state they seek to exclude “testimony about use of
2
force
3
4)(emphasis added). However, Defendants’ arguments appear to concern
4
testimony
5
Plaintiffs. Since it is unclear what evidence Defendants seek to exclude
6
in this motion, it is DENIED.
by
individuals
about
other
Defendants’
than
use
7
Defendants
of
(Defs.’
on
force
MIL
persons
#5
other
2:3-
than
Motion in Limine No. 7
8
Plaintiff.”
seek
to
“preclude
any
reference
or
evidence
9
pertaining to any City of Fairfield policy in regards to the allegations
10
against Defendants in the above-referenced litigation” and “the I.A.
11
[investigation] conducted following the subject incident.” (Defs.’ MIL
12
#7
13
irrelevant and should be precluded under Federal Rule of Evidence 403
14
since Plaintiffs’ Monell claims against the City have been dismissed.
15
Id.
16
testimony of Plaintiffs’ expert “so as to assure that he does not offer
17
any opinions on any ultimate issues of law or witness credibility.” Id.
18
at 4:4-6.
2:2-6,
at
4:2-3.)
2:7-9,
In
3:1-6,
essence,
3:16-23.
Defendants
Defendants
argue
also
such
seek
evidence
to
limit
is
the
19
Plaintiffs counter, Defendants “attempt to characterize [the
20
City’s policies and the I.A. investigation] as only being pertinent to
21
establishing liability on the part of the City of Fairfield[, which is
22
n]ot so.” (Pls.’ Opp’n to Defs. MIL #8, 2:13-19.) Plaintiffs argue:
23
24
25
[The City’s policies and the I.A. investigation]
are not being used to show that the City . . . had
a policy or practice of arresting people without
probable cause but, rather, to show just the
opposite, that the Defendant officers failed to
follow their police department’s own [policies].
26
27
28
Likewise, the [I.A.] investigation and report
. . . are relevant and admissible because the
statements made by the Defendant officers’ [sic]
during the investigation reflect their observations
and rationale for arresting . . . Plaintiffs and
16
1
show that the Defendant officers did not conduct an
independent investigation as required by law[.]
2
3
Id. at 2:21-3:3.
4
The portion of Defendants’ motion, which seeks to exclude the
5
I.A. investigation is DENIED since Defendants have not shown that it
6
lacks probative value on Plaintiffs’ claims or that it should be
7
excluded under Federal Rule of Evidence 403. Further, the remainder of
8
Defendants’
9
Defendants seek to exclude. For example, Defendants do not identify
10
which City policies they seek to exclude, and “[i]n the absence of
11
context, the court cannot categorically conclude that . . . evidence is
12
not related to matters raised by the present dispute nor can it weigh
13
its probity.” Weiss, 293 F. Supp. 2d at 408.
motion
is
DENIED
since
it
is
unclear
what
evidence
14
Motion in Limine No. 8
15
Defendants seek to restrict Plaintiffs “from calling any
16
witnesses
17
disclosed on a timely filed Pretrial Disclosure in compliance with
18
[Rule] 26(a)(3).” (Defs.’ MIL #8, 2:1-6.)
19
or
offering
Since
“[n]o
any
documents
particular
into
documents
evidence
or
which
testimony
were
have
not
been
20
identified in the motion,” it is vague and overbroad, and is therefore
21
DENIED.
Weiss, 293 F. Supp. 2d at 408.
22
Motion in Limine No. 9
23
Defendants filed a ninth Motion in Limine on April 3, 2012,
24
after the March 20, 2012, deadline to file in limine motions, in which
25
they seek to exclude “any argument or reference to race as a motivating
26
reason for the Plaintiffs’ arrests.” (Defs.’ MIL #9, 2:4.) Defendants
27
argue “such argument or reference” is irrelevant and should be excluded
28
under
Federal
Rule
of
Evidence
403
17
since
“this
Court
previously
1
adjudicated that Plaintiffs’ arrests were not related to their race.”
2
Id. 2:8-9, 2:16-20. Defendants state the following regarding why the
3
motion was not timely filed:
4
This Motion is submitted following receipt of
Plaintiffs’ pretrial documents which were filed on
or about March 27, 2012. Within those pleadings,
Plaintiffs raise the issue of race being a
motivating reason for their arrest and suggest they
may attempt to reintroduce that issue despite it
being previously dismissed by this Court . . . .
Since that issue was conclusively adjudicated by
the Court and no longer an issue in the case,
Defendants did not believe it necessary or
appropriate to submit a motion in limine directing
Plaintiffs to comply with this Court’s prior Order.
However, the inclusion of the racial references in
Plaintiffs’ pretrial documents (i.e., Proposed Voir
Dire Question No. 20 (Docket at 145)) suggests
Plaintiffs intend on prosecuting race based
allegations, despite the Court’s prior dismissal of
those claims.
5
6
7
8
9
10
11
12
13
14
Id. at 2:5-15.
15
The scope of Defendants’ motion is unclear. Defendants do not
16
specify what specific anticipated testimony or documentary evidence they
17
seek to exclude, and use of the phrase “argument or reference to race as
18
a motivating reason for the Plaintiffs’ arrest” is ambiguous. For the
19
stated reasons, Defendants’ motion is DENIED.
20
Dated:
April 4, 2012
21
22
23
GARLAND E. BURRELL, JR.
United States District Judge
24
25
26
27
28
18
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