Levy v. County of Alpine, et al.

Filing 125

ORDER signed by Chief Judge Robert H. Whaley on 3/31/2017 ADDING the factual disputes requested by the defendant to the Central Factual Disputes section of the 64 Final Pretrial Order; ADDING the exhibits requested by the defendant to the 64 Fina l Pretrial Order; GRANTING IN PART, DENYING IN PART 68 Motions in Limine; GRANTING IN PART, DENYING IN PART 69 , 115 , 118 Motions in Limine; RESERVING RULING on the defendant's Motions in Limine 11 and 14; SETTING a Telephonic Hearing for 4/5/2017 at 02:00 PM in Visiting Judge (TBD) before Chief Judge Robert H. Whaley. (Michel, G.)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA 7 8 ROBERT E. LEVY, No. 2:13-CV-02643-RHW-DB Plaintiff, 9 v. 10 COUNTY OF ALPINE, et al., 11 ORDER AMENDING FINAL PRETRIAL ORDER Defendants. 12 Before the Court is Defendant County of Alpine’s Motion to Modify the 13 14 15 16 17 18 19 20 Final Pretrial Order. ECF No. 90. Defendant seeks to modify the Central Factual Disputes section and to add exhibits not included in Attachment D to the Final Pretrial Order. Id. Plaintiff Robert Levy opposes both of the proposed changes. ECF No. 93. Also before the Court are Plaintiff Robert Levy’s Motions In Limine and Defendant County of Alpine’s Motions In Limine. ECF Nos. 68, 69, 115, and 118. The Court has reviewed the file as a whole and is fully informed. // ORDER AMENDING PRETRIAL ORDER- 1 1 2 I. Central Factual Disputes The Final Pretrial Order contains seven factual disputes under the heading 3 Central Factual Disputes. ECF No. 64 at 2-3. Defendant seeks to amend the Final 4 Pretrial Order to replace the current Central Factual Disputes section with the 5 following: (1) when and to whom Plaintiff Robert Levy complained about Pamela 6 Knorr’s actions and what his complaints entailed; (2) whether Levy’s complaints 7 about Knorr were a matter of public concern; (3) whether Levy was speaking as a 8 private citizen, not as a public employee in the scope or context of his job duties 9 when he complaint [sic] about Knorr’s actions; (4) whether Knorr’s 10 recommendation that the Board of Supervisors authorize her to retain the services 11 of LCW to investigate the Leviathan Peak telecommunications project was an 12 effort to retaliate against Levy for his complaints about Knorr’s actions; (5) 13 whether retaliation against Levy was a substantial or motivating factor in the Board 14 of Supervisors’ decision to authorize the LCW investigation and report; (6) 15 whether Levy suffered damages as a result of the retaliation taken by the Board of 16 Supervisors, and if so, the amount of damages. ECF No. 90 at 1-2. 17 The Court has reviewed the filings as a whole, including the summary 18 judgment order and briefings (ECF Nos. 26, 31-35, 38, 44), trial briefs (ECF Nos. 19 103, 104), and proposed jury instructions (ECF Nos. 98, 99), and determines that 20 the current Central Factual Disputes section does not encompass all of the facts at ORDER AMENDING PRETRIAL ORDER- 2 1 issue in this case and may contain contentions of facts that are not relevant. A 2 review of the proposed and model jury instructions illustrates additional facts that 3 are relevant to the claim including facts that must be established by plaintiff to 4 prevail and facts that are relevant to the Defendant’s legal and factual defenses 5 such as immunity and status of Plaintiff under the First Amendment. It would be 6 impossible for the Court to use the Central Factual Disputes section of the Pretrial 7 order to limit the evidence presented as neither parties’ case would fit within those 8 confines. Therefore, the Court finds reason to amend the Final Pretrial Order to 9 add—but not replace—the factual disputes presented by Defendant to the current 10 Central Factual Disputes section of the Final Pretrial Order. While these facts shall 11 be added, the Court does not find the Central Factual Disputes section to be 12 particularly helpful in the management of the case, and the Court will not 13 necessarily limit the evidence that may be presented at trial based on that section of 14 the Final Pretrial Order. 15 II. Additional Exhibits 16 Defendant also requests that Attachment D to the Final Pretrial Order 17 (Alpine County’s Exhibit List) be amended to include five additional exhibits. ECF 18 No. 90-1 at 10. These documents include: (1) minutes of the special meeting of the 19 Board of Supervisors in closed session on November 15, 2012; (2) e-mail from 20 Teola Tremayne dated November 16, 2012, with attached addendum agenda for ORDER AMENDING PRETRIAL ORDER- 3 1 Board of Supervisors meeting on November 20, 2012; (3) minutes of the Board of 2 Supervisors meeting on November 20, 2012; (4) minutes of the Board of 3 Supervisors on December 4, 2012; and (5) Levy’s claim for damage against 4 County of Sierra filed December 11, 2013. Id. 5 The minutes of the Board of Supervisors meetings are public records. The 6 meetings of the Board of Supervisors and the actions taken at the meetings form 7 the basis of Plaintiff’s ratification claim as well as the act authorizing the 8 dissemination of the investigation report alleged to be tortuous. Communications 9 between the parties show that a collection of exhibits was delivered to Plaintiff’s 10 counsel on August 1, 2016, which included the proposed exhibits. ECF No. 91 at 2. 11 Counsel for Defendant also sent an email to Plaintiff’s counsel on July 31, 2016, to 12 notify him that the exhibit list included these additional exhibits that were not 13 identified in the Final Pretrial Order. Id. Thus, Plaintiff has been on notice of these 14 exhibits, which are also public record. The meetings referenced in the exhibits and 15 the email identified are central to the Plaintiffs case and should have been part of 16 Plaintiff’s preparation from the time of the filing of his Complaint. No actual 17 prejudice is asserted by Plaintiff. Rather, Plaintiff rests on Defendant’s failure to 18 include the exhibits in the Final Pretrial Order entered the prior month. Plaintiff 19 suggests that the Court review the exhibits and that they be made available at the 20 trial “if appropriate”. ECF 93 at 4. The Court finds that the inclusion of these ORDER AMENDING PRETRIAL ORDER- 4 1 exhibits does not prejudice the Plaintiff and that it is appropriate that the exhibits 2 be included. 3 The Court notes that Plaintiff Levy’s complaint against County of Sierra is 4 dissimilar to the other exhibits requested, in that it is not a record of Defendant and 5 may not have been known to Plaintiff’s counsel. The document references a 6 statement by a party opponent that would normally be admissible as substantive 7 evidence if offered by Defendant. It also may be characterized as rebuttal evidence 8 to be used if Plaintiff denies such statements. As such, the document would not be 9 required to be produced until used in rebuttal. Given that Plaintiff has not claimed 10 actual prejudice by the timing of Defendant’s request to list additional exhibits, this 11 exhibit is included as well. 12 13 14 15 III. Motions In Limine A. Plaintiff’s Motions in Limine (ECF No. 68) Ptf.’s MIL 1: Documents and Reports Not Presented to Plaintiff Plaintiff first moves to exclude all documents and reports prepared by or on 16 behalf of Defendant, which were not presented to Plaintiff during discovery or with 17 an initial disclosure, including but not limited to any and all investigations, reports, 18 etc. from Defendant’s retained investigator, Ken MacHold. Plaintiff also moves to 19 exclude all references, evidence, and testimony regarding any of these documents 20 or reports. ECF No. 68 at 2-3. ORDER AMENDING PRETRIAL ORDER- 5 1 Plaintiff argues that such evidence should be excluded because (1) it is 2 irrelevant to the issues in this case (Fed. R. Evid. 401); and (2) introduction would 3 require an undue consumption of time and is likely to confuse or mislead the jury, 4 or will cause Plaintiff to be unduly prejudiced (Fed. R. Evid. 403). Id. 5 Defendant stipulates as follows: “Defendant stipulates to the foregoing 6 except for any documents that may be used for the purpose of impeachment AND 7 that were not subject to the Rule 26(a) disclosure AND/OR requested through 8 discovery.” ECF No. 70 at 2. 9 10 The Court GRANTS this motion in limine as stipulated by the Defendant. Ptf.’s MIL 2: Non-testifying, County-Affiliated Witnesses 11 Plaintiff moves to exclude all non-testifying, County-affiliated witnesses 12 from the courtroom during the actual proceedings. ECF No. 68 at 3. (The Court 13 assumes that Plaintiff is referencing testifying witnesses). Plaintiff specifically 14 includes former defendants Donald Jardine, Philip Bennett, and Tom Sweeney. Id. 15 Plaintiff argues that these individuals share a strong personal animus toward 16 Plaintiff and are likely to coordinate their responses to questions in an effort to 17 discredit Plaintiff; which will undoubtedly prejudice the jury. Id. Plaintiff states he 18 understands that Defendant will stipulate, with the caveat that Donald Jardine has 19 been selected to sit at counsel table with defense counsel as the County’s 20 representative. Id. ORDER AMENDING PRETRIAL ORDER- 6 1 Indeed, Defendant does stipulate to this motion “with the understanding that 2 Donald Jardine will be present throughout the Trial as he is the individual 3 appearing on behalf of the Defendant.” ECF No. 70 at 3. 4 The Court GRANTS this motion in limine, witnesses shall be excluded from 5 the courtroom, except for Donald Jardine. 6 Ptf.’s MIL 3: Written Report of Jared L. Zwickey 7 Plaintiff moves to exclude the written report of Defendant’s retained expert, 8 Jared L. Zwickey, and all references, evidence, and testimony regarding any 9 documents or reports from Jared L. Zwickey on the grounds that the evidence is 10 irrelevant (Fed. R. Evid. 401); and introduction would require an undue 11 consumption of time and is likely to confuse or mislead the jury, or will cause 12 Plaintiff to be unduly prejudiced (Fed. R. Evid. 403). ECF No. 68 at 3-4. 13 Defendant agrees not to introduce the written report of the expert witness as 14 evidence; however, Defendant does not stipulate to excluding all references, 15 evidence, and testimony regarding any documents or reports from Jared L. 16 Zwickey. ECF No. 70 at 4. Defendant argues that such testimony is relevant and 17 necessary to explain the issues at trial; furthermore, Defendant states that the 18 written report was previously produced to Plaintiff and Chief Zwickey’s deposition 19 has also been taken. Id. As such, Defendant contends that neither Rule 401 nor 20 Rule 403 supports excluding and all references, evidence, and testimony regarding ORDER AMENDING PRETRIAL ORDER- 7 1 2 any documents or reports from Jared L. Zwickey. The Court GRANTS this motion in limine as agreed to by the parties with 3 respect to the written report. The remaining motion in limine is DENIED. 4 Ptf.’s MIL 4: Pre-litigation, Retirement-related Settlement Discussions 5 Plaintiff moves to allow references, evidence, and testimony regarding 6 Plaintiff’s pre-litigation, retirement-related settlement discussions with Defendant 7 for the purpose of proving unfair bias toward Plaintiff and establish a pattern of 8 retaliation by the County and Pamela Knorr toward Plaintiff. ECF No. 68 at 4-5. 9 Defendant opposes this motion and contends that this evidence should not be 10 allowed in for two reasons: (1) these negotiations occurred after the events giving 11 rise to the cause of action and can’t be used retroactively to show bias, and (2) if 12 Pamela Knorr sabotaged retirement negotiations with Plaintiff, it did not violate his 13 constitutional rights. ECF No. 70 at 6-9. 14 The Court DENIES this motion in limine. The qualifications for early 15 retirement and reasons for lack of settlement are marginally relevant to bias. 16 However, they occurred after the events relevant to this case, would require 17 inquiring into collateral matters that are not relevant, and would not result in an 18 efficient use of time. The second hand statement that “Pamela sabotaged the deal” 19 is a conclusion that would not be admissible without a significant foundation, the 20 establishment of which would detract from the issue at trial. This evidence is ORDER AMENDING PRETRIAL ORDER- 8 1 excluded. 2 Ptf.’s MIL 5: Defendant’s Witnesses; Sandra Bryson and Jim Holdridge 3 Plaintiff moves to exclude specific witnesses, Sandra Bryson and James 4 “Jim” Holdridge, from the courtroom on the grounds that they have a personal 5 grudge towards Plaintiff and their actions in the courtroom may unduly prejudice 6 the jury. ECF No. 68 at 5. 7 Defendant agrees that only witnesses who are testifying will be present in 8 the courtroom at the time they are called, and both Sandra Bryson and James “Jim” 9 Holdridge are on Defendant’s witness list and will be called as necessary. ECF No. 10 70 at 10. However, Defendant argues that if either or both of the above named 11 witnesses are removed from Defendant’s witness list and/or not called on to testify, 12 then they have the right as citizens of Alpine County to be present during the 13 testimony given at the trial and Plaintiff provides no facts that either of them would 14 act other than as appropriate while present in a Federal Courtroom. 15 The Court GRANTS this motion in limine as agreed to by the Defendant. 16 B. Defendant’s Motions in Limine (ECF Nos. 69, 115, and 118) 17 Def.’s MIL 1: Reference to Motive Regarding the Relationship Between the 18 Plaintiff, and the former Defendants, PAMELA KNORR and TOM SWEENEY 19 Defendant first moves to exclude any reference to motive regarding the 20 relationship between the Plaintiff and the former Defendants, Pamela Knorr and ORDER AMENDING PRETRIAL ORDER- 9 1 Tom Sweeney, on the grounds that motive is not relevant and would confuse and 2 mislead the jury. ECF No. 69 at 3-8 3 Defendant does not actually address any motive or relationship between 4 Plaintiff and the two former defendants, Pamela Knorr and Tom Sweeney. Id. 5 Instead Defendant argues that the actions taken by the County in authorizing 6 Pamela Knorr to conduct an investigation into the Leviathan Peak project were 7 legislative rather than executive or administrative; thus Defendant should be 8 afforded absolute immunity, or qualified immunity at the very least. Id. Defendant 9 then states part of what Plaintiff must prove to establish his retaliation claim and 10 concludes with a reassertion that Defendant should be afforded absolute immunity. 11 Id. at 7-8. 12 Plaintiff first notes that this argument is the same that has already been 13 rejected when Defendant’s eighth motion in limine was denied in the Final Pretrial 14 Order. ECF No. 72 at 3. Plaintiff then argues that the actions of Pamela Knorr and 15 Tom Sweeney demonstrate retaliatory actions and animus towards Plaintiff. ECF 16 No. 72 at 3-5. Plaintiff contends that Defendant should not be afforded immunity 17 because it was not acting in a legislative capacity in authorizing the investigation, 18 which he states was aimed at him personally. Id. at 5. 19 Here, the ruling in the Final Pretrial Order (ECF No. 64) is not only 20 applicable but directly on point and deals with Defendant’s arguments. The Final ORDER AMENDING PRETRIAL ORDER- 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Pretrial Order states: The court previously found Levy had presented evidence that could lead a reasonable trier of fact to believe “(1) the County’s administrative officer, acting within her policy-making responsibility, instituted an investigation of the telecommunications projects in an effort to discredit Levy and terminate his employment and (2) the Board of Supervisors approved the investigation.” Order Mar. 10, 2016, at 10, ECF No. 44. The County contends that the investigation was an act of the legislature in protecting the interests of its citizens and that this case is therefore barred by absolute legislative immunity. As an initial matter, a motion in limine is the incorrect procedural tool for this job. Motions in limine are designed to address the admissibility of evidence, not substantive legal positions. See Status (Pretrial Scheduling) Order at 4, ECF No. 13. In any event, the County’s argument does not fit the facts of this case. Although federal, state, regional, and local legislators are entitled to absolute immunity from civil liability for their legislative activities, Bogan, 523 U.S. at 46, 49, this immunity does not apply here, as the County is the only remaining defendant, see id. at 53 (“Municipalities themselves can be held liable for constitutional violations . . . .”); Lake Country Estates, Inc. v. Tahoe Reg’l Planning Agency, 440 U.S. 391, 405 n.29 (1979) (“If the [individual legislators] have enacted unconstitutional legislation, there is no reason why relief against [the legislative body] itself should not adequately vindicate [the plaintiffs’] interests.” (citing Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978))); Tenney, 341 U.S. at 378 (“It should be noted that this is a case in which the defendants are members of a legislature.”). ECF No. 64 at 6. The Court DENIES this motion in limine. This has already been addressed 18 and denied by Judge Mueller’s ruling in the Final Pretrial Order. ECF No. 64. 19 Def.’s MIL 2: Reports and Testimony of Plaintiff’s Retained and Non-retained 20 Expert Witnesses. ORDER AMENDING PRETRIAL ORDER- 11 1 2 3 Defendant’s second motion in limine has already been decided and was denied in the Final Pretrial Order. ECF No. 64 at 4-5. Defendant previously argued that the opinions of Plaintiff’s expert 4 witnesses’ are unreliable and speculative. The Final Pretrial Order denied this 5 motion in limine as the arguments attack the factual basis of each opinion, they do 6 not address questions of liability, and Defendant will have the opportunity to 7 highlight its interpretation of the evidence at trial. 8 9 10 11 The Court DENIES this motion in limine. This has already been addressed and denied by Judge Mueller’s ruling in the Final Pretrial Order. ECF No. 64 Def.’s MIL 3: Limit Expert Witnesses Defendant asks the Court to limit the opinion testimony of expert witnesses 12 to those opinions identified in the expert witness disclosures and as testified to at 13 Deposition. ECF No. 69 at 8. 14 Plaintiff states “that the experts may need to deviate slightly from their 15 testimony to provide clarity for the jurors to understand the case at hand.” ECF No. 16 72 at 6. 17 The Court GRANTS this motion in limine, with leave to address the 18 Court with exceptions if warranted. 19 Def.’s MIL 4: Records and Documents subject to Fed. R. Civ. P. 29(a) that were 20 not produced. ORDER AMENDING PRETRIAL ORDER- 12 1 Defendant moves to exclude all records and documents subject to disclosure 2 pursuant to Federal Rules of Civil Procedure, Rule 29(a), that were not produced. 3 ECF No. 69 at 8. 4 The parties stipulate to this Motion in limine. ECF No. 72 at 6. 5 The Court GRANTS this motion in limine. 6 7 Def.’s MIL 5: Expert Testimony Defendant moves to exclude any and all expert testimony other than that 8 disclosed in compliance with the Status (Pre-Trial Scheduling) Order (Court 9 Document #9) and impeachment witnesses. ECF No. 69 at 8-9. 10 The parties stipulate to this Motion in limine. ECF No. 72 at 6. 11 The Court GRANTS this motion in limine. 12 Def.’s MIL 6: Personnel Records, Actions, Investigations, or Administrative 13 Procedures Involving Plaintiff 14 Defendant moves to preclude Plaintiff from introducing evidence or 15 Plaintiff’s counsel eliciting testimony at trial concerning personnel records, 16 actions, investigations, or administrative procedures involving Plaintiff. ECF No. 17 69 at 9-10. 18 Defendant contends that an argument and any evidence and/or testimony 19 regarding unauthorized personnel investigation of Plaintiff should be excluded 20 under Fed. R. Evid. 401 because it is not relevant to the retaliation claim as the ORDER AMENDING PRETRIAL ORDER- 13 1 investigation authorized by Defendant was not a personnel investigation and a 2 claim of unauthorized personnel investigations should be brought under state claim 3 that has already been dismissed. ECF No. 69 at 9-10. 4 Plaintiff counters that to grant this motion would be to nullify Plaintiff’s 5 testimony and evidence concerning the Liebert, Cassidy, Whitmore report and 6 retaliation by Pamela Knorr against him. ECF No. 72 at 6-7. Additionally, Plaintiff 7 contends that this information is relevant to present his untarnished personnel work 8 record/history, including work on telecommunications projects, prior to Pamela 9 Knorr’s actions. Id. at 7. 10 11 12 The Court DENIES this motion in limine. Def.’s MIL 7 and 8: Various Items of Evidence and Plaintiff’s Witnesses Defendant motions in limine to reserve the right to file Motions in limine 13 with regard to the exclusion of various items of evidence listed on Plaintiff's List of 14 Evidence (Exhibit “C”) that “was submitted to the Court on Monday, June 6, 15 2016.” ECF No. 69 at 10. And Defendant moves to reserve the right to file motions 16 in limine to exclude witnesses identified on Plaintiff’s List of Witnesses (Exhibit 17 “A”). ECF No. 69 at 10. 18 The Court DENIES these motions in limine. Motions in limine are designed 19 to address the admissibility of evidence; these are not motions in limine. 20 Def.’s MIL 9: Exclude Witnesses from the Courtroom During Trial ORDER AMENDING PRETRIAL ORDER- 14 1 Defendant moves to exclude any and all identified witnesses from the 2 courtroom during trial. ECF No. 69 at 10. Defendant also notes that Plaintiff’s wife 3 and mother will be present, but will not be testifying. 4 The parties have stipulated to this motion in limine. ECF No. 72 at 7. 5 The Court GRANTS this motion in limine. See supra, Plaintiff’s motions in 6 limine 2 and 5. 7 Def.’s MIL 10: Legislative Immunity 8 Defendant’s tenth motion in limine reads “To determine the relevance of the 9 legislative act re investigating the funding of the telecommunications projects and 10 the appropriate immunity; i.e. absolute (No. 1 above) or qualified.” ECF No. 69 at 11 11-13. Defendant makes substantially the same argument it set forth in support of 12 its first motion in limine, but that Defendant is entitled to immunity because, based 13 on Defendant’s analysis and interpretation of the evidence, the board members 14 who authorized the investigation were entitled to immunity. Id. 15 16 17 Plaintiff opposes this motion and states that his opposition is identical to Defendant’s first motion in limine. The Court DENIES this motion in limine. This has already been addressed 18 and denied by Judge Mueller’s ruling in the Final Pretrial Order. ECF No. 64. 19 Def.’s MIL 11: Board of Supervisors Discussions 20 Defendant moves for “no reference to discussions that took place during ORDER AMENDING PRETRIAL ORDER- 15 1 closed or executive session of the Board of Supervisors as it would violate the 2 Brown Act.” ECF No. 69 at 13. Defendant argues in full that: “California 3 Government Code, Section 54950, et seq., more commonly known as “The Brown 4 Act” allows for governmental bodies to meet in closed session, which discussions 5 are generally not recorded and are considered confidential. Only the results are to 6 be reported and documents provided to the public. Section 54957.1.” Id. 7 Plaintiff counters in full that: “Plaintiff pled in the initial complaint and 8 testified during his deposition that he was retaliated against for bringing Brown 9 Act Violation(s) to the attention of KNORR, Sheriff John Crawford and Alpine 10 County Counsel (Whistleblower).” ECF No. 72 at 8. 11 The Court Reserves Ruling on this motion in limine. The Court directs 12 Defendant to be prepared to defend this motion in limine at the hearing set for 13 April 5th 2017, at 2:00 p.m. The Court notes that Defendant claims privileges and 14 immunities related to certain witnesses and meetings. In other filings, Defendant 15 has mentioned that the County Supervisors should not be questioned about reasons 16 for decisions and contents of deliberations. However, Defendant also contends that 17 there was no illegal motivation in requesting, authorizing, and releasing the 18 Leviathan Peak telecommunications project investigation; proof of which 19 necessarily requires into the reasons actions were taken or not taken and 20 discussions of those reasons by the Board of Supervisors. The Court cannot ORDER AMENDING PRETRIAL ORDER- 16 1 determine for which witnesses and meetings Defendant claims privilege. The Court 2 needs more information as to what Defendant is discussing and requesting. While 3 normally the lack of specificity in the motion would justify its denial, the Court 4 wants to decide legal issues concerning immunity or privilege prior to the trial and 5 testimony. 6 Def.’s MIL 12: Settlement Negotiations 7 8 Defendant moves for no discussion regarding settlement negotiations before or during litigation. ECF No. 69 at 14-15. 9 Defendant argues that Fed. R. Evid. 408 should preclude any 10 testimony or discussion of any settlement negotiations between the parties. Id. at 11 14-15. 12 Plaintiff does not offer any opposition to not discussing the May 10, 2016, 13 settlement conference regarding the case at hand. ECF No. 72 at 8-9. However, 14 Plaintiff does oppose this motion in limine with respect to the prior settlement 15 negotiations. Id. Plaintiff asserts that the earlier settlement negotiations, that took 16 place months before this litigation, did not address the claims at hand, but were 17 part of an early retirement buyout settlement negotiations. Id. It is Plaintiff’s 18 contention that discussions regarding the early retirement settlement negotiations 19 should be admissible as they did not address the claims at hand and should also be 20 allowed to prove bias. Id. ORDER AMENDING PRETRIAL ORDER- 17 1 The Court GRANTS this motion in limine. 2 Def.’s MIL 13: Exclude Legal Conclusion Testimony Related to the Leviathan 3 Peak Investigation as an Unauthorized Personnel Investigation 4 Defendant moves the Court to exclude testimony at trial which states or 5 relies on the legal conclusion that the investigation into the Leviathan Peak Project 6 was an unauthorized personnel investigation of a police officer in violation of 7 California law. ECF No. 115. 8 9 Defendant argues that the testimony Plaintiff will elicit amounts to an interpretation of California law (the Public Safety Officers Procedural Bill of 10 Rights Act) and the law’s purported applicability to the Leviathan Peak 11 investigation. ECF No. 115 at 3. Defendant contends that the testimony to be 12 elicited amounts to resolutions of questions of law and are legal conclusions that 13 are inappropriate subjects for expert testimony. Id. Defendant also contends that 14 such testimony would be improper because it is Defendant’s opinion (and 15 resolution of a question of law and legal conclusion) that the California law does 16 not apply because the Leviathan Peak investigation was not a personnel 17 investigation. Id. at 3-4. 18 Plaintiff objects to this motion as time barred by the Court’s Final Pre-trial 19 Order (ECF No. 64) setting a June 17, 2016, deadline for briefing in support of 20 motions in limine. ECF No. 119. ORDER AMENDING PRETRIAL ORDER- 18 1 The Court DENIES this motion in limine as time barred pursuant to the 2 Final Pretrial Order. ECF No. 64. However, the Court notes legal conclusions by 3 witnesses are not allowed and any objection should be renewed at the time of the 4 testimony. 5 Def.’s MIL 14: Hearsay Testimony and Other Evidence of Employee Complaints 6 Not Involving Retaliation for Engaging in Protected Speech 7 Defendant moves the Court for an order excluding hearsay testimony and 8 other evidence of employee complaints that do not involve retaliation for engaging 9 in protected speech. ECF No. 118. 10 Defendant contends that the only purpose for testimony and evidence 11 involving complaints of harassment and discrimination is an attempt to hold 12 Defendant liable under a theory of respondeat superior, which is inapplicable, and 13 that Defendant will show that Pamela Knorr was not a final policymaker, so 14 evidence of any of her discriminatory actions is irrelevant. ECF No. 118. 15 Defendant argues that some of the evidence to be presented will be hearsay and all 16 of the evidence and testimony regarding complaints of harassment and 17 discrimination are irrelevant because it is not related to a policy or custom of 18 unconstitutional activity. Id. 19 20 Plaintiff objects to this motion as time barred by the Court’s Final Pre-trial Order (ECF No. 64) setting a June 17, 2016, deadline for briefing in support of ORDER AMENDING PRETRIAL ORDER- 19 1 2 motions in limine. ECF No. 119. While normally time barred, pursuant to the Final Pretrial Order (ECF No. 3 64), the Court Reserves Ruling on this motion in limine because the issues raised 4 are central to the jury instructions and trial. The Court directs the parties to be 5 prepared to address this motion in limine at the hearing set for April 5th, 2017, at 6 2:00 p.m. 7 The Court notes that other alleged wrong or bad acts, not admissible for 8 some other purpose, are not admissible. See Fed. R. Evid. 404. Moreover, the 9 Summary Judgement Order specifically “. . . notes the absence of any evidence of 10 a written policy or longstanding custom or practice of retaliation, or a pattern of 11 similar violations.” ECF No. 44 at 10. Thus, the Order precludes evidence in this 12 trial to establish a policy of age discrimination. 13 As the Court understands the Summary Judgment Order, the remaining issue 14 for trial is not an age discrimination claim caused by an age discrimination policy 15 of the County or a policymaker of the County. Rather it is a claim that Knorr 16 retaliated against Plaintiff for complaining about age discrimination. For these 17 purposes, Knorr would have had to act in her capacity as a final policymaker in 18 recommending that the Board initiate an outside investigation, or the Board of 19 Supervisors, as the final policymaker, ratified her actions. Thus the alleged acts of 20 age discrimination are not necessary to be proven. The parties should be prepared ORDER AMENDING PRETRIAL ORDER- 20 1 2 3 4 5 to discuss these observations of the Court at the hearing. Accordingly, it is ORDERED: 1. The Court ADDS the factual disputes requested by Defendant to the Central Factual Disputes section of the Final Pretrial Order, ECF No. 64. 2. The Exhibits requested by Defendant are added to the Final Pretrial Order. 6 Plaintiff’s Motions in Limine, ECF No. 68, are GRANTED, in part, and 7 DENIED, in part, as set forth above. 8 9 3. Defendant’s Motions in Limine, ECF Nos. 69, 115, and 118, are GRANTED, in part, and DENIED, in part, as set forth above. With the 10 exception of Defendant’s Motions in Limine 11 and 14, on which the Court 11 Reserves Ruling. 12 4. A telephonic hearing is SET for Wednesday, April 5, 2017, at 2:00 p.m., to 13 discuss the matters included herein and objections to exhibits. The parties 14 shall call the Court’s toll-free conference line at (888) 363-4749 and enter 15 access code 7667996. Please listen carefully and follow the automated 16 /// 17 /// 18 /// 19 /// 20 /// ORDER AMENDING PRETRIAL ORDER- 21 1 instructions so that you can be added to the conference in a timely manner. 2 Cell phones and speaker phones are not compatible with the Courts sound 3 system and may not be used. 4 IT IS SO ORDERED. The District Court Executive is directed to enter this 5 6 7 8 Order. DATED this 31st day of March, 2017. s/Robert H. Whaley ROBERT H. WHALEY Senior United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 ORDER AMENDING PRETRIAL ORDER- 22

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