McLeod et al v. City of Redding et al

Filing 44

FINAL PRETRIAL ORDER signed by Senior District Judge William B. Shubb on 07/02/24. (Licea Chavez, V)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 13 14 15 16 VERONICA MCLEOD, individually and as successor in interest to decedent, DOLORES HERNANDEZ; AMADO HERNANADEZ; individually and as successor in interest to decedent, DOLORES HERNANDEZ; and YSIDRA REGALDO, individually, 18 19 20 21 FINAL PRETRIAL ORDER Plaintiffs, 17 No. 2:22-cv-00585 WBS JDP v. CITY OF REDDING; GARRETT MAXWELL, an individual; MATTHEW BRUCE, an individual; and DOES 2-10, inclusive, Defendants. 22 23 24 ----oo0oo---A Final Pretrial Conference was held in this matter, 25 pursuant to the provisions of Rule 16(d) of the Federal Rules of 26 Civil Procedure and Local Rule 282, on July 1, 2024. 27 Katz appeared as counsel for plaintiffs and Dale L. Allen, Jr., 28 1 Stewart 1 appeared as counsel for defendants.1 Following the conference, 2 the court enters this Final Pretrial Order: 3 I. Jurisdiction – Venue 4 Jurisdiction is predicated upon 28 U.S.C. §§ 1331 and 5 1343(a), because plaintiffs assert a claim for violation of 6 constitutional rights under 42 U.S.C. § 1983. 7 U.S.C. § 1367, the court has supplemental jurisdiction over 8 plaintiffs’ state law claims, which arise from the same course of 9 conduct as plaintiffs’ federal claims. 10 is hereby found to be proper. 11 II. Pursuant to 28 Venue is undisputed and Jury – Non-Jury 12 All parties have demanded a jury trial. 13 the action shall be tried, pursuant to Federal Rule of Civil 14 Procedure 48, before a jury consisting of six to nine jurors, and 15 the jury must be unanimous. 16 court shall select nine jurors. 17 III. Statement of Case, Jury Instructions, and Proposed Form of 18 Accordingly, The parties have agreed that the Verdict 19 No later than twenty-one days before the trial date, 20 the parties shall submit a joint statement of the case to be read 21 to the jury. 22 No later than twenty-one days before the trial 23 date, counsel for plaintiffs shall lodge and serve, pursuant to 24 Local Rule 163, copies of all jury instructions that plaintiffs 25 request be given on plaintiffs’ claims. 26 27 28 At that time, counsel As discussed in the court’s summary judgment order (Docket No. 39 at 5-6), Officers Bruce and Maxwell are the only remaining defendants because plaintiffs have abandoned their municipal liability claims. 2 1 1 for plaintiffs shall also file and serve a copy of a proposed 2 form of verdict. 3 No later than fourteen days before the trial date, 4 counsel for defendants shall file and serve any objections to the 5 instructions proposed by plaintiffs. 6 for defendants shall lodge and serve, pursuant to Local Rule 163, 7 copies of any and all jury instructions not already proposed by 8 plaintiffs, which defendants request be given. 9 time, counsel for defendants shall file and serve a copy of any At the same time, counsel Also at that 10 proposed form of verdict and shall also file any objections to 11 plaintiffs’ proposed form of verdict. 12 No later than seven days before the trial date, counsel 13 for plaintiffs shall file and serve any objections to the 14 instructions proposed by defendants and to any proposed form of 15 verdict. 16 Pursuant to Local Rule 163, any other instructions 17 thereafter presented will be refused unless it is shown either: 18 (1) that the necessity for the request arose in the course of 19 trial; could not reasonably have been anticipated prior to trial 20 from the pleadings, discovery or nature of the action; and the 21 request for such additional instructions is presented to the 22 court as promptly as possible; or (2) that the refusal to give 23 such instructions would constitute plain error. 24 Likewise, any objections to proposed instructions not 25 made in accordance with this order will be overruled as untimely 26 unless it is shown either: (1) that the grounds therefor arose in 27 the course of trial and the intention to make such objections is 28 communicated to the court as promptly as possible, or (2) that 3 1 the giving of such instructions would constitute plain error. 2 IV. Voir Dire Questions 3 No later than fourteen days before the trial date, 4 counsel for each party shall submit all proposed jury voir dire 5 questions they wish to have the court ask the jury. 6 will conduct the jury voir dire. 7 have 20 minutes for voir dire by counsel. 8 V. The court Thereafter, each side shall Trial Briefs 9 No later than fourteen days before the trial date, 10 counsel for each party shall file trial briefs, which shall 11 include any motions in limine, pursuant to Local Rule 285. 12 VI. Remaining Claims2 13 Plaintiffs’ claims for trial consist of the following: 14 15 (1) Fourth Amendment Unreasonable Detention and Arrest under 42 U.S.C. § 1983; 16 (2) State Law Battery by a Peace Officer (wrongful death); 17 (3) State Law Negligence by a Peace Officer (wrongful 18 death); and 19 (4) 20 Bane Act). 21 VII. Witnesses 22 23 (A) (B) 28 Defendants anticipate calling the witnesses identified at Exhibit “B”, attached hereto. 26 27 Plaintiffs anticipate calling the witnesses identified at Exhibit “A” attached hereto. 24 25 Violation of California Civil Code Section 52.1 (Tom (C) Except for retained experts, each party may call It is agreed that no interlocutory appeal of the court’s summary judgment order will be taken. 4 2 1 any witness designated by any other party. 2 (D) 3 trial unless: No other witnesses will be permitted to testify at 4 5 (1) all parties stipulate that the witness may (2) the party offering the witness demonstrates testify; 6 7 that the witness is for the purpose of rebutting evidence which 8 could not have been reasonably anticipated at the time of the 9 Pretrial Conference; or 10 11 (3) the witness was discovered after the Pretrial Conference. 12 (E) Testimony of a witness not designated in this 13 Order, which is offered under paragraph VII(D)(3), above, upon 14 the grounds that the witness was discovered after the Pretrial 15 Conference, will not be permitted unless: 16 17 (1) reasonably have been discovered prior to the Pretrial Conference; 18 19 the testimony of the witness could not (2) the court and opposing counsel were promptly notified upon discovery of the testimony; and 20 (3) counsel proffered the witness for deposition 21 if time permitted or provided all opposing counsel a reasonable 22 summary of the testimony if time did not permit a deposition. 23 VIII. 24 25 26 27 28 Exhibits (A) Plaintiffs intend to offer the exhibits identified at Exhibit “C” attached hereto. (B) Defendants intend to offer the exhibits identified at Exhibit “D”, attached hereto. (C) Each party may offer any exhibit designated by any 5 1 other party. 2 3 (D) unless: 4 5 No other exhibits will be received in evidence (1) all parties stipulate that the exhibit may be received in evidence; 6 (2) the party offering the exhibit demonstrates 7 that the exhibit is for the purpose of rebutting evidence which 8 could not have been reasonably anticipated at the time of the 9 Pretrial Conference; or 10 11 12 (3) the exhibit was discovered after the Pretrial Conference. (E) An exhibit not designated in this Order, which is 13 offered under paragraph VIII(D)(3), above, upon the grounds that 14 the exhibit was discovered after the Pretrial Conference, will 15 not be received in evidence unless: 16 17 (1) discovered prior to the Pretrial Conference; 18 19 the exhibit could not reasonably have been (2) the court and opposing counsel were promptly notified upon discovery of the exhibit; and 20 (3) counsel provided copies of the exhibit to all 21 opposing counsel if physically possible or made the exhibit 22 reasonably available for inspection by all opposing counsel if 23 copying was not physically possible. 24 (F) Each party shall exchange copies of all exhibits 25 identified in this Order, or make them reasonably available for 26 inspection by all other parties, no later than seven days before 27 the trial date. 28 filed and served not later than four days before the trial date. Any and all objections to such exhibits shall be 6 1 (G) The attorney for each party is directed to appear 2 before trial and present an original (and if physically possible 3 one copy) of each exhibit to Deputy Clerk Karen Kirksey Smith at 4 8:30 a.m. on the date of trial. 5 (H) Each exhibit which has been designated in this 6 Order and presented on the morning of the date of trial shall be 7 pre-marked by counsel. 8 defendants’ exhibits shall bear letters. 9 been made to such exhibit pursuant to paragraph VIII(F), above, Plaintiffs’ exhibits shall bear numbers; If no objection has 10 such exhibit will require no further foundation and will be 11 received in evidence upon the motion of any party at trial. 12 IX. Further Discovery and Motions 13 Except for motions in limine on issues that cannot be 14 decided during trial, no further motions shall be brought before 15 trial except upon order of the court and upon a showing of 16 manifest injustice. 17 will be permitted except by the express stipulation of all 18 parties or upon order of the court and upon a showing of manifest 19 injustice. 20 X. Fed. R. Civ. P. 16(e). No further discovery Id. Use of Depositions or Interrogatories 21 No later than twenty-one days before the trial date, 22 counsel for each party shall file and serve a statement 23 designating all answers to interrogatories and all portions of 24 depositions intended to be offered or read into evidence, with 25 the exception of portions to be used only for impeachment or 26 rebuttal. 27 counsel for any other party may file and serve a counter- 28 designation of other portions of the same depositions intended to No later than fourteen days before the trial date, 7 1 be offered or read into evidence and may file evidentiary 2 objections to any other parties’ designation. 3 seven days before the trial date, the parties may file 4 evidentiary objections to any other party’s counter-designation. 5 XI. No later than Date and Length of Trial 6 The trial is set for September 10, 2024 in Courtroom 5 7 at 9:00 a.m.. The court estimates that the trial will last 8 approximately five to six days. 9 of liability first, and then the parties will present argument The jury shall decide the issue 10 and evidence as to damages should the jury find either defendant 11 liable on any claim. 12 XII. Settlement 13 The parties previously participated in a settlement 14 conference with Magistrate Judge Jeremy D. Peterson on October 15 25, 2023 and have a further settlement conference with Judge 16 Peterson scheduled for August 19, 2024. 17 XIII. 18 Daubert Procedure Any challenges based on Daubert v. Merrell Dow 19 Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Kumho Tire Co. v. 20 Carmichael, 526 U.S. 137 (1999) will be raised and resolved 21 outside the presence of the jury just prior to when the 22 challenged expert will be called to give testimony. 23 challenged expert shall be present for such a challenge, and 24 shall be available for questioning. 25 XIV. 26 Any Evidence Presentation Equipment If any party feels that electronic presentation is 27 necessary, they should be prepared to operate the courtroom’s 28 equipment or bring their own audio-visual equipment to the 8 1 courtroom and be prepared to operate it themselves. 2 XV. Objections to Pretrial Order 3 Any objections or suggested modifications to this 4 Pretrial Order shall be filed and served within seven days from 5 the file-stamped date of this Order. 6 the date of this Order shall refer to the date the tentative 7 order is filed and not to the date any amended order is filed. 8 If no objections or modifications are made, this Order will 9 become final without further order of the court and shall control All references herein to 10 the subsequent course of the action, pursuant to Rule 16(e) of 11 the Federal Rules of Civil Procedure. 12 Dated: July 2, 2024 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 1 Exhibit A: Plaintiffs’ Witnesses 2 1. Officer Garett Maxwell 3 2. Officer Matthew Bruce 4 3. Aiden Phillips 5 4. Richard Bell 6 5. Jennifer Hoberg 7 6. Adam Snyder 8 7. Patrick Carpenter 9 8. Deirdre Amaro, M.D. 10 9. Scott DeFoe 11 10. Veronica McLeod 12 11. Amado Hernandez 13 12. Ysidra Regaldo 14 13. Lucy Adams 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 1 Exhibit B: Defendants’ Witnesses 2 1. Melody Graham 3 2. Rick Plummer 4 3. Jaason Schuler 5 4. Aiden Phillips 6 5. Richard Bell 7 6. Ryan Hoberg 8 7. Jennifer Hoberg 9 8. Kyle Cornwall 10 9. Sara Shields 11 10. Christopher Poulos 12 11. Rajiv Kelkar 13 12. Steve Papenfuhs 14 13. Zack Lemire 15 14. Sgt. Matt Purcell 16 15. Detective C. Doble 17 16. Officer Adam Thornton 18 17. Officer K. Schukei 19 18. Sgt. Hatfield 20 19. Officer Zavala 21 20. Officer Cornwell 22 21. Officer Cheryl Sheppard 23 22. Officer Amy Rubalcaba 24 25 Defendants reserve on calling any witnesses listed in plaintiffs’ statement. 26 27 28 11 1 Exhibit C: Plaintiffs’ Exhibits 2 1. Cellphone Video of Incident (COR (McLeod) 000272) 3 2. Transcript of Statement of Corporal Garett Maxwell, No. 354, 4 Internal Affairs Investigation, No. 20-0033 (COR (McLeod) 5 000323-000341) 6 3. 7 8 000321, 000322, 001342) 4. 9 10 5. 6. 7. 8. 9. 10. Photos of Garett Maxwell, after incident (COR (McLeod) 002151-002204) 11. 23 24 Selected Photos of the Scene, Investigation Photos, Autopsy Photos (COR (McLeod) 001416-002150 21 22 Redding Police Department, Call Detail Report, Call No. 20D182724, (McLeod 001205-001220) 19 20 Shasta County Sheriff Investigative Report (COR (McLeod 000152-000267) 17 18 Redding Police Department Investigative Report (COR (McLeod 000001-000151) 15 16 Audio Recording of Statement of Matthew Bruce (COR (McLeod) 001350) 13 14 Statement of Police Officer Matthew Bruce (COR (McLeod) 000346-000374) 11 12 Audio Recording of Statement of Garett Maxwell (COR (McLeod Photos of Matthew Bruce, after incident (COR (McLeod) 001371-001415) 12. Redding Police Department, Officer-Involved Shooting Power 25 Point, RPD No. 20R079262, 12/2/20 (COR (McLeod 002962- 26 002991) 27 28 13. Redding Police Department, RPD Policy Manual, Policy 300, Use of Force (COR (McLeod) 000509-000518) 12 1 14. 2 3 Firearms (COR (McLeod) 000544-000555) 15. 4 5 Redding Police Department, RPD Policy Manual, Policy 305, Redding Police Department, Use of Force (COR (McLeod) 000268-000271). 16. 6 Redding Police Department, Training Document, De-Escalation (COR (McLeod) 7 17. 001239-001243). 8 18. Autopsy Report of Dolores Hernandez (COR (McLeod) 000397- 9 10 000425) 19. 11 12 Station 5 Interview of Captain Adam Snyder (COR (McLeod) 001344) 20. 13 Audio Recording of Interview of Aiden Phillips (COR (McLeod) 001349) 14 21. Death Certificate of Dolores Hernandez (PLTFS 00001) 15 22. Birth Certificate of Amado Hernandez (PLFTS 00002) 16 23. Birth Certificate of Veronica Hernandez (McLeod) (PLTFS 17 18 00003) 24. 19 20 Decedent Dolores Hernandez (PLTFS 00004-00025) 25. 21 22 Pictures of Decedent Dolores Hernandez with Plaintiffs Veronica McLeod and Amado Hernandez (PLTFS 00048-00049) 26. 23 24 Correspondence between Plaintiff Veronica McLeod and Excerpt from Bank Statement of Veronica McLeod re Funeral and Burial Expenses (PLTFS 00050) 27. Sierra View Memorial Park Invoice (PLTFS 00051) 25 26 27 28 13 1 Exhibit D: Defendants’ Exhibits 2 Defendants adopt plaintiffs’ exhibit list. In addition, 3 defendants may offer as exhibits the following: 4 1. 5 otherwise identified in the plaintiff exhibit list. 6 2. 7 investigation agencies. 8 3. 9 not otherwise identified in plaintiff’s exhibit list. Responses to Plaintiffs RFP #1, Bates 380 to Bates 2960 not Bates 2961, 3D illustration of scene prepared by Bates 2962-299 supplemental responses to plaintiff’s RFP #1 10 4. Bates 2995 – 3003 Officer Bruce training file 11 5. Bates 3004 - Ryan Hoberg video interview 12 6. Bates 3005-3018 Sutter S.O. reports involving decedent. 13 7. Bates 3041-3048 Yuba City police reports involving decedent. 14 8. Bates 3049-3056 Colusa S.O. reports involving decedent. 15 9. Bates 3057-3119 Officer Bruce Medical records. 16 17 18 19 20 21 22 23 24 25 26 27 28 14

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