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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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Markus M. Hall, Monique G.
Rankin, Lindsey K. Sanders,

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Plaintiffs,

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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

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The parties move in limine for an order seeking to preclude

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

18

below.

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A.

Plaintiffs’ Motions in Limine

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Motion in Limine No. 1

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Plaintiffs seek to exclude “any evidence or testimony that

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[Defendants] conducted an independent investigation by interviewing

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other witnesses.” (Pls.’ Mot. in Limine (“MIL”) #1, 2:4-7.) Plaintiffs

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argue, “Defendants have admitted in their responses to Requests for

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Admissions that they did not interview any customers or employees at the

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restaurant other than Mr. Young, who filed the citizen’s arrest[;]”

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therefore “the Court should . . . exclude any evidence or testimony” to

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the contrary. Id. at 3:4-11.

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2

Defendants filed a joint Opposition to Plaintiffs’ first,
second and ninth motions in limine, arguing:

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[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.

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5
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7
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9
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(Defs.’ Opp’n to Pls.’ MIL’s 1, 2 and 9, 2:5-11.)

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“Federal Rule of Civil Procedure [(“Rule”)] 36(b) provides

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that any matter admitted in response to a request for admission is

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‘conclusively

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amendment of the admission.” 999 v. C.I.T. Corp., 776 F.2d 866, (9th

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Cir.

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inconsistent with a Rule 36 admission is properly excluded.” Id. at 869-

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70. “[A] party cannot overcome a binding admission by offering evidence

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that contradicts the admission[.]” Shepherd v. Baca, No. CV 03-02923 JVS

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(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

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Although Defendants cannot introduce evidence contrary to

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matters they admitted under Rule 36, the scope of Plaintiffs’ motion is

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unclear; Plaintiffs do not specify what specific anticipated testimony

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they seek to exclude. Since the Court cannot determine whether the

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evidence sought to be excluded contradicts Defendants’ admissions,

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Plaintiffs’ motion is DENIED.

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Motion in Limine No. 2

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Plaintiffs seek to exclude “any evidence or testimony that

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[Defendants] conducted an independent investigation by independently
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investigating the . . . knowledge” of the citizen who filed the

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citizen’s arrest, In-N-Out Burger restaurant manager Marc Young. (Pls.’

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MIL

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stipulated that . . . only [Defendant] McDowell spoke to Marc Young[,]”

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and Mr. Young testified in deposition that he and McDowell did not

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exchange any information concerning “what if anything Defendants had

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done” to warrant their arrest. Id. at 3:4-4:2. Therefore, Plaintiffs

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argue the Court should exclude any evidence to the contrary. Id. at 4:3-

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6.

#2,

2:4-7.)

In

essence,

Plaintiffs

argue

“[t]he

parties

have

10

It is unclear what the phrase “independently investigating the

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citizen witness’ knowledge” means in this motion. Further, Plaintiffs

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have not shown that a witness’s deposition testimony precludes the

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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.

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2007)(stating “[s]tatements made at a deposition, unlike statements made

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in

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deponent”). For the stated reasons, Plaintiffs’ motion is DENIED.

response

to

requests

for

admission,

are

not

binding

on

the

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Motion in Limine 3

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Plaintiffs move to exclude witnesses Officer Joel Orr, Officer

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21
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23
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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.

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26

(Pls.’ MIL #3, 2:4-16.)

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Defendants counter,

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Each of the three officers was identified within
the documents produced to Plaintiffs in response to
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1

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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.

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(Defs.’ Opp’n to Pls.’ MIL #3, 2:5-12.) Defendants further argue, “there

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is no duty to supplement any prior disclosures since Plaintiffs have

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previously received the identity of those officers as contained both

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within the police report and as testified to in deposition.” Id. at

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2:10-12.

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3

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Plaintiffs reply:

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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.

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(Pls.’ Reply Re: MIL #3, 2:15-19.)

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Rule 26 requires the disclosure of “the name . . . of each

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individual likely to have discoverable information - along with the

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subjects of that information - that the disclosing party may use to

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

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impeachment[.]” Fed. R. Civ. P. 26(a)(I).

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disclosing parties to supplement their prior disclosures ‘in a timely

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manner’ when the prior response is ‘incomplete or inaccurate.’” Hoffman

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v.

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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

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supply evidence . . . at trial, unless the failure was substantially
4

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justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Rule 37(c)(1), was

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“implemented in the 1993 amendments to the Rules, [and] is a recognized

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broadening of the sanctioning power. The Advisory Committee Notes

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describe it as a ‘self-executing,’ ‘automatic’ sanction to ‘provide a

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strong inducement for disclosure of material[.]’” Yeti by Molly, Ltd. v.

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Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001)(quoting Fed.

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R. Civ. P. 37 advisory committee’s note (1993)). “[T]he burden is on the

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party

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justification].” Id. at 1107.

facing

sanctions

to

prove

harmlessness

[or

substantial

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In essence, Defendants argue their production of documents,

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which reference these three witnesses, satisfied their obligation to

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identify them as potential witnesses.

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“realistically have been expected to recognize [these officers] as . .

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. potential witness[es] just because [their] name[s] [may have] appeared

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in some of the . . . documents produced in this case.” Monsanto Co. v.

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Bayer Bioscience N.V., No. 4:00CV01915 ERW, 2005 WL 5989796, at *21

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(E.D. Mo. Oct. 28, 2005); see also Mehus v. Emporia State Univ., 326 F.

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Supp.

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disclosing a document, [the party] has sufficiently disclosed its intent

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to ‘call the authors as witnesses at trial to authenticate the complaint

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documents’”). Since Defendants have not shown that their failure to

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identify Officers Orr, Carreon, and Solio as witnesses was harmless or

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substantially justified, Plaintiffs’ motion is GRANTED.

2d

1213,

1218

(D.

Kan.

However, Plaintiffs cannot

2004)(rejecting

argument

“that

by

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Motion in Limine No. 4

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Plaintiffs seek to exclude Defendants’ expert witness, Gregg

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Stuchtman, arguing “he was not disclosed by Defendants, who have only

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disclosed one expert, Don Cameron, in Defendants’ Rebuttal Expert

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Witness Disclosure.” (Pls.’ MIL #4, 2:6-10.) Plaintiffs further argue,
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“by listing Mr. Stuchtman in the Amended Joint Pretrial Statement,

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Defendants

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Court[,]” which denied Defendants’ “motion to supplement their expert

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witness disclosure to add a forensic video expert.” Id. at 2:11-17.

are

attempting

to

circumvent

an

earlier

order

by

the

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Defendants “do not dispute that Mr. Gregg Stuchtman should not

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be called in Defendants’ case in chief[; i]nstead, Mr. Stuchtman is

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intended to be called only as a rebuttal witness[.]” (Defs.’ Opp’n to

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Pls.’ MIL #4, 2:5-7.) Defendants argue “such testimony is expressly

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admissible and authorized when offered in rebuttal to prior trial

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testimony.” Id. at 2:6-7.

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“Rule 26 requires parties to disclose the identity of any

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expert witness ‘accompanied by a written report’ detailing the opinions

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the expert will express and the data on which he or she will rely[.]”

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Jarritos, Inc. v. Reyes, 345 Fed. Appx. 215, 217 (9th Cir. 2009)(quoting

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Fed. R. Civ. P. 26(a)(2)). “Rule 26(a)(2)(D) [prescribes] that the

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[default] deadline for disclosing rebuttal experts is . . . 30 days

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after the expert witness disclosure deadline.” Allstate Ins. Co. v.

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Nassiri, No. 2:08-cv-00369-JCM-GWF, 2011 WL 2975461, at *11 (D. Nev.

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July 21, 2011). That same rule permits the trial court to alter the

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timing

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26(a)(2)(D)(“A party must make these disclosures at the times and in the

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sequence

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disclosure implicates Federal Rule of Civil Procedure 37(c)(1).” AZ

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Holding, LLC v. Frederick, No. CV-08-0276-PHW-LOA, 2009 WL 2432745, at

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*4 (D. Ariz. Aug. 10, 2009).

and

sequence

that

the

of

court

expert

disclosures.

orders.”).

Further,

Fed.

R.

Civ.

“[u]ntimely

P.

expert

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Notwithstanding Defendants’ conclusory contentions to the

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contrary, rebuttal expert witnesses must be timely disclosed. And

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Defendants have provided no other justification for not disclosing Gregg
6

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Stuchtman as an expert witness. Since Defendants have not shown that

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their failure to disclose Gregg Stuchtman as an rebuttal expert witness

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was harmless or substantially justified under Rule 37(c)(1), Plaintiffs’

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motion is GRANTED.

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Motion in Limine No. 5

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Plaintiffs seek to “exclud[e] expert witnesses from offering

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opinions not disclosed in discovery.” (Pls.’ MIL #5, 2:4-5.) Although

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the requested exclusion is not particular to any expert or anticipated

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testimony, Plaintiffs’ argument in support of the motion specifically

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concerns Defendants’ rebuttal expert witness, Don Cameron. Id. at 2:7-

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19. Plaintiffs argue:

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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.

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Defendants counter, “Plaintiffs’ Motion in Limine is somewhat

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cryptic and does not identify the exact testimony being challenged.”

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(Defs.’ Opp’n to Pls.’ MIL #5, 2:5-6.) Defendants further argue:

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[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
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1

to cross-examine, rebut and offer competing expert
testimony.

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Id. at 2:6-11.

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To the extent Plaintiffs’ motion specifically concerns expert

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Don Cameron’s testimony on the issue of whether Defendants had probable

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cause to arrest Plaintiffs, it is DENIED since Plaintiffs have not shown

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that the testimony sought to be excluded was not encompassed within his

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expert report. See Speedtrack v. Wal-Mart Stores, Inc., No. C 06-7336

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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

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testimony simply to reading his report[.] The rule contemplates that the

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expert will supplement, elaborate upon, and explain his report in his

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oral testimony.” Muldrow ex rel. Estate of Muldrow v. Re-Direct, Inc.,

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493 F.3d 160, 167 (D.C. Cir. 2007)(internal quotation marks, citation

18

and brackets omitted).

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The remainder of Plaintiffs’ motion is “over-broad[,]” and is

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therefore DENIED. In re Homestore.com, Inc., No. CV 01-11115 RSWL (CWx),

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2011 WL 291176, at *13 (C.D. Cal. Jan. 25, 2011)(denying motion in

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limine where party did “not provide[] the Court with the specific

23

evidence claimed to be inadmissible”); see also Weiss v. La Suisse,

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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

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the City if Fairfield[.]” (Pls.’ MIL #6, 2:4-11.) However, Plaintiffs

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further state that their motion “does not seek to exclude evidence or

7

testimony that Defendant officers arrested Plaintiffs using techniques

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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

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their training records.” Id. at 2:17-20.

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13

training

records[,]”

arguing

“the[]

records

have

no

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

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Motion in Limine No. 7

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Plaintiffs move to “exclud[e] the introduction of documents

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and other evidence requested but not produced in discovery.” (Pls.’ MIL

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#7, 2:4-5.) This motion is “vague and overbroad[,]” and is therefore

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DENIED. Lopez v. Chula Vista Police Dept., No. 07cv1272-WQH-BLM, 2010 WL

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685014, at *7 (S.D. Cal. Feb. 18, 2010).

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Motion in Limine No. 8

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Plaintiffs

“move

for

an

order

excluding:

(1)

Non-party

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witnesses from the courtroom while they are not under examination; (2)

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Witnesses to whom 24 hours notice was not given prior to calling; (3)

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Speaking objections; and (4) Stipulations of fact or contentions in the

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presence of the jury.” (Pls.’ MIL #8, 2:4-8.)

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Defendants “agree that [an order excluding non-party witnesses

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from the courtroom when they are not testifying] is appropriate,” and

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“agree that an order providing advance notice is appropriate, but

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request the notice for any officer witnesses be increased to 48 hours.”

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(Defs.’ Opp’n to Pls.’ MIL #8, 2:6-11.) Defendants object to Plaintiffs’

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third and fourth requests as “overly vague[.]” Id. at 2:13-19.

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A motion in limine is “any motion, whether made before or

5

during trial, to exclude anticipated prejudicial evidence before the

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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

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oppose Defendants’ [48 hour] modification.” (Pls.’ Reply re MIL #8,

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2:13-15.)

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For the stated reasons, Plaintiffs’ motion is DENIED, except

17

as to Plaintiffs’ request to exclude non-party witnesses from the

18

courtroom.

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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

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non-party witnesses will be excluded from the courtroom in accordance

23

with Federal Rule of Evidence 615.

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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.

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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

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leave

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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

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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.

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B.

Defendants’ Motions in Limine

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Motion in Limine No. 1

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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.

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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.

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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