Beckway v. DeShong et al

Filing 272

ORDER ON MOTIONS IN LIMINE by Judge Thelton Henderson granting 235 Motion in Limine; denying 236 Motion in Limine; granting 232 Motion in Limine no. 4; granting 232 Motion in Limine no. 5. (tehlc2, COURT STAFF) (Filed on 1/12/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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BRENT BECKWAY,

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Plaintiff,
v.
DEPUTY PAUL DESHONG, et al.,

NO. C07-5072 TEH
ORDER ON MOTIONS IN
LIMINE

Defendants.

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For the Northern District of California

United States District Court

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After careful consideration of the parties’ arguments on the remaining motions in

12 limine, the Court now rules as follows:
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14 Plaintiff’s Motion in Limine No. 2
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This is a motion to exclude Plaintiff’s nolo contendere plea and resultant conviction

16 for a violation of Cal. Penal Code section 148(a), a misdemeanor. Plaintiff argues that
17 Federal Rule of Evidence 410 bars the admission of nolo contendere pleas, and the resultant
18 convictions, as proof of the underlying conduct.
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Under the Federal Rules of Evidence, pleas of nolo contendere are treated as distinctly

20 different from convictions based on guilty pleas and convictions after trial. Rule 410 states,
21 in relevant part: “In a civil or criminal case, evidence of the following is not admissible
22 against the defendant who made the plea or participated in the plea discussions: ... a nolo
23 contendere plea ....” . A nolo plea “is not a factual admission” of a crime, but “a statement of
24 unwillingness to contest” the charge and “an acceptance of the punishment that would be
25 meted out to a guilty person”. Olsen v. Correiro, 189 F.3d 52, 59-60 (1st Cir. 1999). “A
26 conviction resulting from a nolo contendere plea under these circumstances is not by itself
27 sufficient evidence to prove a defendant committed the underlying crime.” U.S. v. Nguyen,
28 465 F.3d 1128, 1130 (9th Cir. 2006).

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Though Rule 410 refers to the admissibility of nolo pleas against “the defendant who

2 made the plea” (emphasis added), it protects either party in a civil action from the admission
3 of their prior nolo pleas and resultant convictions. The “defendant” referred to in the rule is
4 the criminal defendant making the plea, who may later become a defendant or a plaintiff in a
5 subsequent civil suit. Therefore, absent an exception, admission of the Plaintiff’s nolo plea
6 in the instant case is barred by Rule 410.1
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Defendants respond that under Brewer v. City of Napa, 210 F.3d 1093 (9th Cir. 2000)

8 a nolo plea is admissible where Federal Rule of Evidence 609 would allow its admission.
9 Rule 609(a) states:
The following rules apply to attacking a witness’s character for truthfulness by
evidence of a criminal conviction:

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For the Northern District of California

United States District Court

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(1) for a crime that, in the convicting jurisdiction, was punishable by death
or by imprisonment for more than one year, the evidence:
(A) must be admitted, subject to Rule 403, in a civil case or in
a criminal case in which the witness is not a defendant; and

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(B) must be admitted in a criminal case in which the witness is
a defendant, if the probative value of the evidence outweighs
its prejudicial effect to that defendant; and

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(2) for any crime regardless of the punishment, the evidence must be
admitted if the court can readily determine that establishing the elements of

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Defendants highlight language from the Order issued by this Court on April 7, 2011,
granting in part and denying in part motions for summary judgment. In that Order, the Court
commented that “[a] court has already found that Beckway resisted the officers”, and went
on to make reference to “resistance proven by Beckway’s section 148(a)(1) conviction.”
Order Granting in Part and Den. In Part Mots. For Summ. J. at 6, lines 11 and 27-28; also at
7, line 3 (April 7, 2011). The Court has reconsidered: as Rule 410 strictly “prohibits the
admission of nolo contendere pleas and the convictions resulting from them as proof that the
pleader actually committed the underlying crimes charged,” (Nguyen, 465 F.3d at 1131) nolo
pleas may not be used to demonstrate guilt on the part of the individual who made the plea.
It is therefore not appropriate to draw conclusions such as those contained in the Order from
the fact of Mr. Beckway’s nolo plea. While a guilty plea and resultant conviction may be
used as a basis for finding that there has been a factual determination by a court of guilt, and
thereby allow the Court to draw the conclusion that there is evidence of the conduct alleged,
(resisting arrest, here), a nolo plea may not be so used. The Court must therefore amend its
prior determination. The nolo plea in this case does not give rise to any findings regarding
Mr. Beckway’s conduct.
This does not alter the Court’s overall determination on the motions discussed in the
April 7 Order. The conclusions regarding the conduct underlying the conviction in Mr.
Beckway’s case are ancillary to the applied reasoning, and the finding in the order–that Heck
v. Humphrey, 512 U.S. 477 (1994) and its progeny do not bar Mr. Beckway’s section 1983
claim–remains unaltered.
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the crime required proving--or the witness’s admitting--a dishonest act or
false statement.

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Because Rule 609(a)(1) applies only to those convictions punishable by death or

4 imprisonment for longer than one year, it only applies to felony convictions in California (the
5 “convicting jurisdiction”). Rule 609(a)(2) applies to any offense wherein the elements
6 establish a dishonest act or false statement, thus sweeping misdemeanor convictions
7 involving untruthfulness into the scope of Rule 609's application. However, this would not
8 go so far as to include a conviction for Cal. Penal Code section 148(a)(1), which is a
9 misdemeanor charge of resisting, delaying or obstructing a peace officer, and thus not a

11 case, the conviction would not be admissible as impeachment under 609, and, thus, Brewer is
For the Northern District of California

United States District Court

10 crime involving dishonesty. As Rule 609 does not apply to the conviction in Mr. Beckway’s

12 inapposite. The motion to exclude evidence of Plaintiff’s nolo contendere plea and resultant
13 conviction is GRANTED.
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15 Plaintiff’s Motion in Limine No. 3
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Plaintiff moves to exclude evidence of the telephone message Plaintiff Beckway left

17 on the answering machine of Alan Keats, his neighbor and purported victim, on October 27,
18 2006, the date of Mr. Beckway’s arrest. Plaintiff argues that the evidence is irrelevant to the
19 question of excessive force, and will mislead the jury as to the severity of the crime that
20 brought deputies to Mr. Beckway’s home. He further argues that the message constitutes
21 character evidence, and is unduly prejudicial, requiring exclusion under Federal Rules of
22 Evidence 404(a) and 403.
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Graham v. Connor establishes that the relevant inquiry in a case of excessive force is

24 “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and
25 circumstances confronting them.” Graham, 490 U.S. 386, 397 (1989). “The ‘reasonableness’
26 inquiry in an excessive force case is an objective one”. Id. “The ‘reasonableness’ of a
27 particular use of force must be judged from the perspective of a reasonable officer on the
28 scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 397. Factors to
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1 be considered include–but are not limited to–“the severity of the crime at issue, whether the
2 suspect poses an immediate threat to the safety of the officers or others, and whether he is
3 actively resisting arrest or attempting to evade arrest by flight.” Id. These factors do not limit
4 the jury’s inquiry; rather, the jury must consider the “totality of the circumstances” in
5 determining whether the officer or officers in a case acted reasonably. Forrester v. City of
6 San Diego, 25 F.3d 804, 809 n.2 (9th Cir. 1994).
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Because Graham requires an objective consideration of the totality of the

8 circumstances facing a given officer accused of using excessive force, the facts known to the
9 officer at the time of the incident are relevant to the jury’s determination. The relevance of

11 understood it to be significant to the Beckway matter at the time he visited Mr. Beckway’s
For the Northern District of California

United States District Court

10 the message, then, is entirely dependant on whether DeShong had heard the message and

12 home. It is undisputed that the message arrived on Mr. Keats’s answering machine–and was
13 audible in the house–while DeShong was present, interviewing Mr. Keats. The effect of the
14 message on Mr. Keats is noted in the police report, and, though the speaker on the answering
15 machine is not initially identified in the police report, the report later says that DeShong
16 asked for backup before going to Mr. Beckway’s home in part because the message he had
17 heard incited some misgivings in DeShong regarding Mr. Beckway’s state of mind. Plaintiff
18 having presented no evidence contravening the assertion that DeShong was aware of the
19 message prior to the incident, and, in fact, was influenced by it as he prepared to visit Mr.
20 Beckway, the Court finds that the evidence is relevant under Graham and DENIES the
21 motion to exclude the message.
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23 Defendants’ Motion in Limine No. 4
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Federal Rule of Evidence 404(a) governs the admissibility of character evidence, and

25 states that “[e]vidence of a person's character or character trait is not admissible to prove that
26 on a particular occasion the person acted in accordance with the character or trait.” Fed. R.
27 Ev. 401(a)(1). Evidence of a person’s prior bad acts is inadmissible when offered to prove
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1 that the person acted in conformity with those prior acts, or, similarly, to show that the
2 person has a propensity to act in such a manner.
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However, such evidence may be admissible if offered for another purpose.

4 Acceptable purposes, listed in Federal Rule of Evidence 404(b), include offering the
5 evidence as proof of motive, opportunity, intent, preparation, plan, knowledge or absence of
6 mistake or accident. In the present matter, the Plaintiff has argued that the evidence they wish
7 to admit (which pertains to the termination of DeShong, the complaints against him, and a
8 temporary restraining order issued pursuant to a domestic dispute) is offered to prove (1)
9 DeShong’s knowledge of the Lake County Sheriff’s Department Code, (2) DeShong’s

11 argue that the evidence is relevant to these issues, and not intended for the purpose of
For the Northern District of California

United States District Court

10 motive to break the Code, and (3) DeShong’s absence of mistake in injuring Beckway. They

12 demonstrating a propensity on the part of DeShong for conduct of the sort at issue in the
13 present case.
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It is not clear how citizen complaints, termination, or a restraining order demonstrate

15 DeShong’s knowledge of his department’s Code more effectively than other, more
16 straightforward evidence, such as the fact that he was trained and employed by the Sheriff’s
17 Department. It is unclear how complaints and termination are probative of knowledge of
18 Department procedures at all (and certainly the temporary restraining order has no value on
19 this point). Furthermore, both DeShong’s termination from the force and the issuance of the
20 temporary restraining order against him came about after the incident in this case. It is
21 unclear, from the papers and argument of counsel, whether there were citizen complaints in
22 question which predated the incident in this case. Regardless, that which occurred after the
23 incident could not provide a motive for the incident, and, were there any citizen complaints
24 predating the Beckway incident, the Plaintiff has not made clear how they might have
25 motivated the incident with Beckway, and thus admission as evidence of motive is not
26 appropriate. Finally, to be used as evidence of the absence of mistake, the evidence would
27 have to support Plaintiff’s contention that the injury to Beckway was a deliberate use of
28 excessive force, rather than an accident. In order for prior complaints or complaints and
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1 termination that had yet to occur to make it more likely that DeShong deliberately injured
2 Beckway, one would have to believe that these other incidents made it more likely that, on
3 this occasion, DeShong acted in conformity with the conduct demonstrated in the other
4 incidents. This would require one to believe that DeShong’s incidents of bad conduct
5 following the Beckway arrest are demonstrative of DeShong’s propensity to break the Code
6 of his Department–without assuming a propensity, there is no way for future acts to bear on
7 past conduct, and therefore the purpose for this evidence, under this reasoning, would be
8 precisely that which is barred by Rule 404(a). The Plaintiff has not demonstrated an
9 appropriate use of this evidence, and thus the Court GRANTS the motion and excludes the

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For the Northern District of California

United States District Court

10 evidence of DeShong’s termination, citizen complaints, and restraining order.
The Court understands, however, that this evidence may become admissible if the

12 testimony of a witness at trial makes the evidence relevant impeachment. Federal Rule of
13 Evidence 608 allows evidence of specific instances of conduct where they are “probative of
14 the character for truthfulness or untruthfulness of: (1) the witness; or (2) another witness
15 whose character the witness being cross-examined has testified about.” Fed. R. Ev. 608(b).
16 The possibility exists that DeShong himself may open the door to the admission of his past
17 acts, should his testimony cause those past acts to become probative of either his own
18 truthfulness or the truthfulness of another witness about whom he has testified. Fed. R. Ev.
19 608(b). In light of this, the Court will allow the Plaintiff to reopen the question of allowing
20 cross-examination on this subject should testimony make these matters relevant. However,
21 should testimony cause Plaintiff to believe the evidence has become proper impeachment,
22 counsel shall confer with the Court outside the presence of the jury, at sidebar, prior to
23 presenting any material otherwise barred by this ruling.
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With regards to the related question of what DeShong shall be called during his

25 testimony, the Court finds that it would mislead the jury to allow him to be referred to as
26 “Deputy” and therefore ORDERS the parties not to refer to the witness as “DeShong” or
27 make other comment implying he is presently a law enforcement officer. Other testifying
28 officers shall be referred to by their proper title.
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Defendants’ Motion in Limine No. 5
This motion similarly seeks to exclude all evidence of citizen complaints about, or

3 discipline of, DeShong and Deputy Ward. This evidence is inadmissible for the same reasons
4 discussed above, being barred by Rule 404 and lacking clear relevance. However, citizen
5 complaints against a witness may be used as impeachment evidence, should they become
6 admissible under Rule 608(b) during a witness’s testimony.
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8 Areas Of Additional Concern Raised During Argument
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The parties have sought to revisit some motions in limine on which this Court has

11 ruling and by raising their further concerns orally at the motions hearing held on January 9,
For the Northern District of California

United States District Court

10 already ruled, both by the filing of additional materials following issuance of the Court’s

12 2012. The Court has considered the parties’ arguments and materials, and declines to revise
13 the previously-issued decision for the reasons below.
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15 Plaintiff’s Motion in Limine No. 4
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Plaintiff moved to exclude the testimony of Dr. Joseph McCoy on the grounds that his

17 anticipated testimony, as expressed through his report, lacks sufficient medical authority to
18 be admitted as an expert opinion, and, furthermore, on the grounds that the Rule 26
19 disclosure of the cases in which Dr. McCoy has appeared as an expert witness was
20 insufficient, lacking any detail beyond the names of the cases. Without case numbers,
21 locations, dates, or further information, Plaintiff’s counsel was unable to perform the review
22 of Dr. McCoy’s past testimony they had expected, and now move to exclude the witness’s
23 testimony in its entirety.
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As the Court previously held, these arguments are appropriate material for cross-

25 examination, but does not rise to the level of disqualifying the Defendants’ offered expert for
26 failure to meet the requirements of Federal Rule of Evidence 702. With regards to Rule 26,
27 the Court previously denied this motion because of Plaintiff’s failure to allege or discuss how
28 the inadequate disclosure had caused him to be prejudiced.
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“In order to exclude expert testimony, the opposing party must be prejudiced.”

2 Paulissen v. U.S. Life Ins. Co. in City of New York, 205 F.Supp.2d 1120, 1126 (C.D.Cal.,
3 2002) (quoting Fitz, Inc. v. Ralph Wilson Plastics Co., 184 F.R.D. 532, 536 (D.N.J.1999)). In
4 the one page of discussion provided on this topic in Plaintiff’s motion (Pl.’s Mot. In Limine
5 No. 4 at 7), prejudice is not addressed at all. Though counsel for the Plaintiff argued that his
6 motion had contained the requisite showing of prejudice, review of the motion reveals that
7 the word “prejudice” appears three times: once on page two, in the summary of the motion,
8 once on the same page in the description of issues to be decided, and once more, on page
9 three, at line 14, where the motion states that the Rule 26 disclosure was insufficient “to the

11 neither the word nor the topic of prejudice is to be found in the motion as it was submitted to
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United States District Court

10 point that it has caused prejudice to the Plaintiff.” Aside from these three appearances,

12 this Court. Therefore, the Court denied the motion to exclude Dr. McCoy.
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In the wake of the Court’s decision, the Plaintiff submitted two further declarations in

14 support of this motion, which discussed prejudice deriving from the exiguous disclosure at
15 length. Submitted two days after the motion had been ruled on, on the Friday evening
16 preceding the Monday hearing at which the remaining motions in limine were to be
17 addressed, the declarations were decidedly untimely.
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Though the untimeliness alone is sufficient reason to decline revisiting the motion, the

19 avoidability of the present problem bears special note. The difficulty the Plaintiff faces as a
20 result of the lacking disclosure is significant. However, as the disclosure was made in
21 advance of the deposition, on December 13, 2011, Plaintiff not only had an opportunity to
22 question Dr. McCoy extensively on his prior experience, but also had the opportunity to, if
23 necessary, make a filing with the Court regarding the problem well before the eve of trial.
24 Having not pursued the issue expeditiously, Plaintiff may not now exclude the testimony of
25 the witness altogether for the inadequacy of the disclosures.2
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Though it is not strictly relevant to the reasons described above for denying
reconsideration, the Court further notes that the case on which Plaintiff relies, Jennings v.
27 Thompson, 792 F.Supp.2d 1 (D.D.C., 2011) involved an expert witness who had been
previously struck for refusing to comply with Rule 26 requirements, and a “handwritten ‘trial
28 list’ provided by the plaintiff reveals that it indicates only months and years associated with
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1 Defendants’ Motion in Limine No. 9
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Defendant’s motion in limine number nine is a motion to exclude from evidence the

3 Plaintiff’s medical bills, on the grounds that they do not reflect the amount Plaintiff paid or
4 would be required to pay and therefore lack sufficient relevance to be admitted into evidence.
5 The motion was denied. At the hearing on the four motions in limine which had yet to be
6 ruled upon, the Defendants revisited this ruling, asking that the Court reconsider. The
7 Defendants specifically requested that the Court further review the holding in Howell v.
8 Hamilton Meats & Provisions, Inc., 52 Cal.4th 541 (2011), and argued that, because of
9 Howell, this Court is required to find the evidence in question inadmissible.
The Court, having further reviewed Howell, disagrees. Howell, a 2011 holding of the

11 California Supreme Court, addresses California’s collateral source rule, which “precludes
For the Northern District of California

United States District Court

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12 deduction of compensation the plaintiff has received from sources independent of the
13 tortfeasor from damages the plaintiff would otherwise collect from the tortfeasor.” Howell,
14 52 Cal.4th at 548 (quotations omitted). In particular, the case dealt with a situation in which a
15 plaintiff had been injured in an automobile accident negligently caused by a driver for the
16 defendant company. Howell, 52 Cal.4th at 549. At trial, the defendant company moved to
17 exclude evidence of medical bills that neither the plaintiff nor her insurer had paid. Id. It is
18 established that in California the “reasonable value” of the medical care for which a plaintiff
19 may recover is measured by “the amounts paid by the plaintiff or his or her insurer for the
20 medical services received or still owing at the time of trial.” Howell, 52 Cal.4th at 566-67.
21 Damages, therefore, are limited to the loss actually suffered by an injured party, whether that
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certain individuals' names, and does not identify specific case names, docket numbers, or the
23 courts in which the cases were pending.” Jennings, 792 F.Supp.2d at *6. The handwritten
“disclosure” was followed with a second, supplemental document, which was faxed to the
24 Plaintiff “long after the close of discovery, long after the expert's deposition, and indeed after
the plaintiff had already filed this motion in limine in preparation for trial” and did “not
25 disclose any cases in which [the expert] gave deposition testimony” nor “identify any
specific ‘cases’ with identifying court information” but merely “list[ed] the names of
26 individuals.” Id. The present situation is not nearly so egregious, nor is it clear that there was
a deliberate, willful failing on the part of the party responsible for the provision of
27 information such as occurred in Jennings. Rather, it seems that, in the instant case, the
information not withheld, but poorly kept by the expert and consequently difficult and time28 consuming to reconstruct.
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1 loss is borne by the injured party alone or by third parties in conjunction with the injured
2 party.
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However, the court in Howell did not find that medical bills requesting sums higher

4 than the actual amount for which the plaintiff and his insurer were held responsible are
5 categorically inadmissible. Rather, the court held that the full bill is admissible (assuming it
6 satisfies other rules of evidence), but loses its relevance on the issue of the cost of the
7 medical expenses in question. Howell, 52 Cal.4th at 567. The Howell court explicitly notes
8 that the holding has no bearing on the relevance or admissibility of such bills on other issues,
9 such as noneconomic damages or future medical expenses, and, furthermore, that the court

11 for the jury to hear evidence of the plaintiff’s full medical bills. Howell, 52 Cal.4th at 567.
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10 does not need to reach the question as the defendant in Howell conceded that it was proper

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Overall, the focus of Howell is not on the admissibility of bills, but on the

13 admissibility of evidence of the negotiated rate differential in light of California’s collateral
14 source rule. On that question, the court held that admitting evidence of the difference
15 between the billed sum and the sum actually due after negotiation with the plaintiff’s insurer
16 does not violate the collateral source rule, as a negotiated rate differential is not a benefit
17 provided to the plaintiff in compensation for injury and therefore does not come within the
18 collateral source rule. Howell, 52 Cal.4th at 566.
19

This case, urged by Defendants, does not, upon further review, contradict the holding

20 of this Court on the Defendant’s motion in limine. In the present case, federal–not
21 state–evidentiary rules apply. Van Maanen v. Youth With A Mission, et al., 2011 WL
22 5838185, *6 (E.D. Cal. Nov. 21, 2011). As the collateral source rule is recognized by federal
23 common law, but is not a rule of evidence under federal law, the Federal Rules of Evidence
24 govern the admissibility of this evidence.3 Id. The Defendants argue that the evidence lacks
25 relevancy, as the negotiated rate differential in this case renders the original bills inaccurate
26 as a representation of the reasonable value of the damages suffered by the Plaintiff. Though
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This does not bar admission of collateral source payments in federal court Rather,
such evidence may be admissible under Howell as well as under the Federal Rules, and
28 therefore would be admissible in this Court.
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1 the bills may not establish damages in this regard, the Plaintiff, in his response, set forth
2 other issues on which the bills are relevant, such as the extent of injuries, and the
3 reasonableness of Lake County Hospital’s rates as compared to other local care providers.
4 The bills do, therefore, have relevance, and, in light of the holding in Howell regarding the
5 admissibility of the negotiated rate differential, the Defendants are free to argue against the
6 bills as a measure of damages and present their own figures, taking into account the insurer’s
7 rate. There is therefore little prejudice to the Defendants in allowing the evidence, which may
8 be probative of both the nature of Plaintiff’s injuries and the reasonableness of the hospital’s
9 rates. Hence, the evidence is admissible, and the Court’s prior ruling on Defendant’s motion

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10 in limine number nine stands: the motion is DENIED.
The Court does not intend, however, to allow misrepresentation of the amount the

12 Plaintiff and his insurer were ultimately required to pay (or presently owe). Defendants may
13 make their arguments regarding the nonrepresentative nature of this evidence on the question
14 of Plaintiff’s economic loss. Furthermore, the Court invites Defendants, if they feel it
15 appropriate, to move for a cautionary instruction on this issue, which the Court will
16 administer prior to the jury’s deliberation. If Defendants wish to have such an instruction,
17 counsel shall meet and confer on the appropriate language, and agree, if possible, on an
18 instruction. If counsel, after meeting and conferring, cannot agree, the Court will consider
19 Defendants’ proposed language and hear any objections or competing language Plaintiff may
20 wish to submit.
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22 IT IS SO ORDERED.
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24 Dated: 1/12/2012
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THELTON E. HENDERSON, JUDGE
UNITED STATES DISTRICT COURT

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