Rocky Mountain Bank -v- Google, Inc.

Filing 324

Rocky Mountain Bank -v- Google, Inc.

Doc. 324

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SUNIL R. KULKARNI (CA SBN 186723) [e-mail] K.C. ALLAN WALDRON (CA SBN 231866) [e-mail] MORRISON & FOERSTER LLP 755 Page Mill Road Palo Alto, California 94304-1018 Telephone: [phone] Facsimile: 650.494.0792 MARK MARTEL (CA SBN 147970) [e-mail] LAW OFFICES OF MARK MARTEL 425 Sherman Avenue, #330 Palo Alto, California 94306 Telephone: [phone] Facsimile: 650.470.2654 Attorneys for Plaintiffs DWIGHT WATSON, DANIEL FARIAS, LAUREN WATSON, and NICOLE WATSON

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

DWIGHT WATSON, DANIEL FARIAS, LAUREN WATSON, and NICOLE WATSON, Plaintiffs, v. GLENN ALBIN, DAVID MENDEZ, FRANK ST. CLAIR, MIKE D' ANTONIO, MIKE RUBINO, SANTA CLARA COUNTY, STATE OF CALIFORNIA, and DOES 1-50, Defendants.

Case No.

C06-07767 RMW (HRL)

PLAINTIFFS' IN-TRIAL BRIEF NO. 8: UNLAWFUL DETENTION CLAIM Trial: Time: Judge: Court: May 19, 2008 1:30 p.m. The Hon. Ronald Whyte 6

PLAINTIFFS' IN-TRIAL BRIEF NO. 8 CASE NO. C06-07767 RMW (HRL) pa-1259706
Dockets.Justia.com

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Yesterday (June 2), the Court issued draft jury instructions that did not include instructions relating to unlawful detention. The Court and Agent Albin's counsel justified this on two grounds: (a) unlawful detention was not pled as a separate claim; and (b) the evidence did not support an unlawful detention claim. (Tr. at 873:18-21, 870:24-871:1.) Plaintiffs agree that there was no separate claim for unlawful detention pled in their complaint.1 Under Federal Rule of Civil Procedure 15(b)(2), however, "[w]hen an issue not raised by the pleadings is tried by the parties' express or implied consent, it must be treated in all respects as if raised in the pleadings." Here, Plaintiffs have consistently argued the unlawful detention issue in their motion papers, proposed jury instructions, and verdict form. And Plaintiffs have asked numerous questions of the witnesses in this case about detention. For his part, Agent Albin often has argued the legal standard for when such a detention is lawful, and never -- at least until yesterday -- objected to the presence of the unlawful detention claim in the case. In fact, Agent Albin has proposed jury instructions and a proposed special verdict form on this very issue. (Defendant's Proposed Jury Instructions at 2; Defendant's Special Verdict Form at 2.) And Agent Albin's counsel elicited testimony from Agents Albin, Mendez, and Mecir concerning the issue of whether a police officer has authority to detain occupants of a house during a probation search. (Tr. at 978:10-979:2; 1043:19-1044:6; 1091:317.) The focus of that questioning was on detention, not arrest. Both parties thus have tried the unlawful detention issue to the Court and jury, and under Federal Rule of Civil Procedure 15(b)(2), the issue should be "treated in all respects as if raised by the pleadings." That means the Court should provide instructions on the issue. And as explained above, the evidence introduced at trial, at least when viewed most favorably to Plaintiffs, supports an unlawful detention claim. During the early moments of the encounter between Agent Albin and Mr. Watson, Agent Albin had not arrested Mr. Watson. Instead, as Agent Albin testified yesterday, he was detaining Mr. Watson when he grabbed Mr. Watson's left wrist. (Tr. at 963:10.) Plaintiffs have provided ample evidence that at that time,
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Unlawful detention, however, was mentioned in the complaint. (Compl. ¶¶ 39-40.) 1

PLAINTIFFS' IN-TRIAL BRIEF NO. 8 CASE NO. C06-07767 RMW (HRL) pa-1259706

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Agent Albin had no reasonable suspicion to believe Mr. Watson had committed or was committing any crimes, or posed a danger to him or other officers. Therefore, the Court should provide instructions on whether Agent Albin's conceded detention of Mr. Watson was lawful.

Dated: June 3, 2008

SUNIL R. KULKARNI K.C. ALLAN WALDRON MORRISON & FOERSTER LLP MARK MARTEL LAW OFFICES OF MARK MARTEL

By:

/s/ Sunil R. Kulkarni Sunil R. Kulkarni Attorneys for Plaintiffs DWIGHT WATSON, DANIEL FARIAS, LAUREN WATSON, and NICOLE WATSON

PLAINTIFFS' IN-TRIAL BRIEF NO. 8 CASE NO. C06-07767 RMW (HRL) pa-1259706

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