Trulove v. San Francisco et al

Filing 403

PRETRIAL ORDER NO. 2 RE: MOTIONS IN LIMINE AND JUROR INVESTIGATION. Signed by Judge Yvonne Gonzalez Rogers on 2/28/18. (fs, COURT STAFF) (Filed on 2/28/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JAMAL R. TRULOVE,

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Plaintiff,
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Vs.

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MAUREEN D’AMICO, MICHAEL JOHNSON,
ROBERT MCMILLAN, AND JOHN EVANS, ET
AL,

Case No.: 16-CV-050 YGR
PRETRIAL ORDER NO. 2 RE: MOTIONS IN
LIMINE AND JUROR INVESTIGATION
Dkt. Nos. 319, 321, 323, 325, 326, 328, 329,
331-337

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Defendants.

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The Court, having considered the motions in limine submitted by Plaintiff Jamal Trulove

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(Dkt. Nos. 319, 321, 323, 325, 326, 328, 329), and by defendants Maureen D’Amico, et al. (Dkt.

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Nos. 331 through 337), ORDERS as follows:
First, as an overarching matter, the Court notes that its Standing Order cautions counsel

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that:
Parties frequently misuse motions in limine in an attempt to exclude broad
categories of possible evidence. Such motions are routinely denied. Any motion
in limine must specify the precise exhibits or proffered testimony the party seeks
to exclude.

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(See Court’s Standing Order re: Pretrial Instructions In Civil Cases, paragraph 4.a.) To the

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extent the parties have failed to heed that advice, their motions in limine have been denied, as set

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forth herein. Further, with respect to all rulings, if a party opens the door, the other party may

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request reconsideration, but such request must be done outside the presence of the jury.

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I.

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PLAINTIFF’S MOTIONS IN LIMINE
Plaintiff’s No. 1: To Preclude Inadmissible Opinion and Credibility Testimony:
In light of the plaintiff’s representations at Docket Nos. 401 and 402 that they intend to

dismiss the claims of malicious prosecution, the Court RESERVES on this motion to allow the
parties to address the appropriate scope of testimony by the prosecuting attorneys, if any.

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Plaintiff’s No. 2: To Preclude Questioning regarding Plaintiff’s Criminal Trial
Strategy and his Counsel’s Effectiveness:
The motion is GRANTED IN PART, DENIED IN PART.
Again, as a preliminary matter, the motion is overbroad. Defendants do not dispute that

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plaintiff should not be questioned as to the reasons for his choice not to testify. Accordingly,

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that portion of the motion is GRANTED and the Court will entertain an instruction in that regard.

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However, certain facts regarding the circumstances of the underlying criminal and appeal

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proceedings are relevant in this trial, and the motion to exclude is, to this extent, DENIED.

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Plaintiff cannot eliminate from this trial all facts which do not support his theory of the case.

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Similarly, the fact of the underlying conviction, the reversal, and the reasons for the reversal are

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also relevant. The parties have come to an agreement on a stipulated statement of the Court of

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Appeal’s decision. (Dkt. No. 390.)

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Plaintiff’s No. 3: To Preclude Evidence Of Prior Bad Acts:
The motion is DENIED to the extent that any defendant seek to testify as to actions that
defendant personally took and judgments that defendant personally made in light of all the
information the defendant had at the time, including information about gang membership. To
address the issue of the proper use of that evidence, the Court will entertain a limiting instruction

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for the jury.
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The Court otherwise RESERVES ruling on this motion. The Court requires additional
information to determine what information may come in. The party offering such “prior bad
acts” evidence shall seek a ruling permitting its admission prior to any use of such evidence.
Plaintiff’s No. 4: To Preclude Undisclosed Expert Testimony:
The motion is overbroad and does not offer a specific proffer as to which witnesses it

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understands defendants may offer for purposes of providing opinions on the significance of cell

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phone records or shell casings.

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The Court has already ruled that certain undisclosed experts will be precluded from

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testifying. (See Order re: Motions To Exclude Expert Testimony, Dkt. No. 398.) Defendants

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previously identified Eric Perez as an unretained expert on cell phone records, and the motion to

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exclude his testimony was granted as unopposed. (Id.) Defendants will be permitted to testify as
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to their opinions based upon their personal experience, but will not be permitted to offer expert
opinion testimony.
In light of the plaintiff’s representations at Docket Nos. 401 and 402 that they intend to

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dismiss the claims of malicious prosecution, the Court RESERVES on this motion to allow the

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parties to address the appropriate scope of testimony by the prosecuting attorneys, if any.

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Plaintiff’s No. 5: To Preclude Prior Bad Acts Of Witnesses For Impeachment
Purposes:
The motion is GRANTED IN PART as set forth explcitly herein, otherwise the Court
RESERVES ruling on the balance of the motion.

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With respect to Joshua Bradley, the motion is unopposed and therefore GRANTED.

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As to David Trulove and Oliver Barcenas, the Court requires additional information to

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reach its decision. Defendants have been given a deadline of March 2, 2018, to provide such
information. (See Pretrial Order No. 1 at 6.) The Court will permit evidence of criminal
convictions for felonies less than 10 years old consistent with Federal Rule of Evidence 609.
The party offering such evidence shall seek a ruling permitting its admission prior to any use of
such evidence.
Plaintiff’s No. 6: To Permit Leading Question Of Adverse Witnesses

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The motion is GRANTED. The parties have submitted a stipulated list as to which
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witnesses may be deemed adverse for purposes of asking leading questions. (Dkt. No. 390.)
Plaintiff’s No. 7: To Exclude Evidence of Defendants’ Good Character
The motion is GRANTED as unopposed.
Plaintiff’s No. 8: To Exclude Witness Testimony As to Plaintiff’s Expert’s (Norris)
Competence And Dr. Melinek’s Resignation Letter

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The Motion is GRANTED as to witness testimony criticizing Norris’ competence as an

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expert. As to the issue of the letter of resignation of Dr. Melinek, the Court RESERVES. The

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Court requires a copy of the letter before it can make a ruling.

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II.

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Defendants’ No. 1: To Exclude The Use Of The Term Innocent

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DEFENDANTS’ MOTIONS IN LIMINE

The motion is GRANTED as unopposed. The parties shall use the actual finding of the
jury in the second criminal case which was “not guilty.”

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Defendants’ No. 2: To Exclude Evidence Or Argument Regarding Other

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Complaints, Claims And Allegations Or Personal Information That Are Not Part Of This

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Case.

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The motion is GRANTED as unopposed.

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Defendants’ No. 3: To Exclude Evidence Or Argument That Department Policy Set

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Standard For Liability, And Lay Opinion Regarding Compliance With Policy

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The motion is GRANTED as unopposed with respect to precluding testimony and

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argument that suggests or implies that a violation of department policy constitutes a violation of

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plaintiff’s constitutional rights. It is further GRANTED as to the testimony of an officer about
whether any other officer acted consistent with policy. However, the motion is DENIED with
respect to questioning witnesses regarding their own knowledge and understanding of such
policies, or those policies’ application to their own conduct.
Defendants’ No. 4: To Exclude Evidence Or Argument Regarding Dismissed

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Claims And Parties
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The motion is GRANTED as unopposed.
Defendants’ No. 5: To Exclude Evidence Of Post-Conviction Statements Unknown
To Defendants For Arguments Regarding Defendants’ Liability
The motion is DENIED. The jury will be well advised during the course of the trial as to

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what facts and/or information each of the defendants had. To the extent the parties feel it is

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necessary, the Court will entertain the parties’ proposals for pre-instructions to the jury that it is

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not being called upon to determine whether plaintiff is guilty or not guilty, and the difference in

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the level of proof required in a criminal versus a civil case.

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Defendants’ No. 6: To Exclude Evidence Re Indemnification And Reference To
Defense Attorneys As “Deputy City Attorneys”
The motion is GRANTED.
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Defendants’ No. 7: Motion to Bifurcate Trial As To Liability/Innocence and
Damages/Punitives

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The motion is DENIED as to bifurcating liability from damages. With respect to punitive

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damages, the Court did indicate to the parties that that portion will be bifurcated. However, in

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light of the plaintiff’s representations at Docket Nos. 401 and 402 that they intend to dismiss that

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portion of the complaint, the motion may be moot.

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III.

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JUROR INVESTIGATION
In accordance with Model Rule of Professional Conduct 3.5(b) and Formal Opinion for

466, the parties “may review a juror’s or potential juror’s Internet presence, which may include

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postings by the juror or potential juror in advance of and during the trial, but . . . may not
communicate directly or through another with a juror or potential juror.” A party “may not,

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either personally or through another, send an access request to a juror’s electronic social media.

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An access request is a communication to a juror asking the juror for information that the juror

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has not made public and that would not be the type of ex parte communication prohibited by

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Model Rule 3.5(b).” Further, to the extent that any information from the investigation may result

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in a question of the juror during voir dire, the parties shall advise the juror of the source of the
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information.
IT IS SO ORDERED.
Dated: _______ 28, 2018
February

____________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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