Velasquez v. City of Santa Clara et al

Filing 220

OMNIBUS ORDER RE: MOTIONS IN LIMINE by Judge Paul S. Grewal granting-in-part 129 , 130 , 131 , 132 , 133 , 134 , 135 , 136 , 137 , 138 , 139 , 140 , 141 , 142 , 143 , 144 , 145 , 147 , 148 , 149 , 150 , 151 , 152 , 156 , 157 , 158 , 159 , 160 , 161 , 162 , 163 , 164 , 165 , 166 , 167 , 168 , 169 , 170 , 172 and 173 (psglc2, COURT STAFF) (Filed on 3/11/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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VICTOR VELASQUEZ,
Plaintiff,

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v.

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CITY OF SANTA CLARA, et al.,

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Defendants.

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OMNIBUS ORDER
RE: MOTIONS IN LIMINE
(Re: Docket Nos. 129-145, 147-152,
156-170 and 172-173)

This order memorializes the court’s rulings issued from the bench this afternoon.

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Case No. 5:11-cv-03588-PSG

Before the court are the parties’ motions in limine prior to trial in this Section 1983 case.

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I. LEGAL STANDARDS
A.

Fed. R. Evid. 401 and 403
Fed. R. Evid. 401 provides that evidence is relevant if “it has any tendency to make a fact

more or less probable,” or if it is of any consequence in resolving the action. Fed. R. Evid. 403
gives the court discretion to exclude relevant evidence “if its probative value is substantially

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outweighed by a danger” of “unfair prejudice, confusing the issues, misleading the jury, undue
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delay, wasting time, or needlessly presenting cumulative evidence.”

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Case No. 5:11-cv-03588-PSG
OMNIBUS ORDER RE: MOTIONS IN LIMINE

II. DISCUSSION

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MIL

Motion

Result

Reason/Explanation

P1

To Prohibit Any
Documents or Witnesses
Not Produced During
Discovery or Under
Fed. R. Civ. P. 26

GRANTEDIN-PART

Any document or witness that was not specifically
requested and should have been disclosed under Rule 26
will not be introduced at trial.

P2

To Prohibit Any Expert
Opinion on Ultimate Facts
and Legal Conclusions

GRANTEDIN-PART

Experts may testify as to ultimate facts, but not offer
conclusions of law. The court will entertain any
appropriate objection and, if necessary,
admonish counsel.

P3

To Prohibit Any Opinion
Testimony of Non-Experts

DENIED

The court will permit lay opinion testimony. To the
extent any lay opinion strays into the arena of expert
testimony, the court will entertain any appropriate
objection.

P4

To Prohibit Any Expert
Testimony on any Issue Not
Set Forth in the Mandatory
Expert Report or to
Presume Facts Exist from
an Expert Report

GRANT

The court will not permit an expert to stray from
her report.

P5

To Prohibit Danny Chavez
and Robert From
Appearing to Testify at
Trial, and to Prohibit Any
Reference to Danny Chavez
and Robert Mecir at Trial

GRANTEDIN-PART

Chavez and Mecir may testify, but those witnesses must
each sit for a two-hour deposition upon request and in
advance of trial.

P6

To Allow the Playing of
Video and the Use of Other
Demonstrative Evidence
During Opening
Statements

GRANTED

Unopposed. Velasquez must share demonstrative
evidence 24 hours in advance.

P7

To Require 24 Hour
Advance Notice to All
Parties of Intended Witness
Appearances

DENIED

The court adopts Defendants’ suggestion that the parties
disclose their intended witnesses by 4:30 p m. each day.

P8

To Prohibit Witnesses
From Attending Trial Until
After They Have Testified
and Been Released by the
Court Except Named
Parties

GRANTED

Unopposed.

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United States District Court
For the Northern District of California

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Case No. 5:11-cv-03588-PSG
OMNIBUS ORDER RE: MOTIONS IN LIMINE

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P9

To Prohibit the
Introduction of Police
Reports as Documentary
Evidence

GRANTED

Unopposed. Pursuant to the Federal Rules a witness
may be refreshed by any writing.

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1. Loss of Richard’s CI File
No speculation on what happened to the file will be
permitted.

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2. Velasquez’s Intoxication on the Day of the Incident
Witnesses may testify that they were told by an
informant that Velasquez was a drug user. Rule 403
concerns are outweighed by the impact of such
knowledge on the Defendant officers.

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United States District Court
For the Northern District of California

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P10

Improper Extrapolation or
Speculation by Witnesses

GRANTEDIN-PART

3. Whether Velasquez Could Hear Verbal Commands
Witnesses may testify as to what commands they
shouted and how Velasquez responded, but it will be
left to the jury to draw any conclusions from
Velasquez’s response.
4. Velasquez’s Threats to Shoot it Out
Because the state of mind of the officers is relevant,
Defendant officers may offer testimony about what they
had heard about Velasquez.

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5. The Apparent Drug Transaction
Witnesses may testify as to what they observed in the
parking lot when they saw Velasquez approach the
window of another car but it will be left to the jury to
draw any conclusions from those observations.

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6. Whether Velasquez was Armed
The officers can speak to their state of mind as to
whether they believed Velasquez was armed.

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P11

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To Prohibit Evidence and
Testimony Regarding
Plaintiff’s Tattoos and
Physical Markings

DENIED

To Prohibit Evidence and
Testimony Regarding
Plaintiff’s Desire to Resist
and “Shoot it Out” With
Police

GRANTEDIN-PART

Velasquez’s tattoos are relevant evidence that goes to
Defendants’ risk assessment based on Velasquez’s gang
affiliation. The probative value of the evidence is
significant despite the risk of unfair prejudice. This
evidence will not be excluded on Rule 403 grounds.
If an officer can testify under oath that he saw a
photograph prior to Velasquez’s arrest, then the
photograph is fair game. If not the photograph is out.

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P12

Defendants may only rely on, and introduce evidence
of, what the arresting officers heard prior to the arrest.

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Case No. 5:11-cv-03588-PSG
OMNIBUS ORDER RE: MOTIONS IN LIMINE

Velasquez’s gang affiliation, even if he had not been
fully validated by the time of his arrest, is relevant to the
reasonableness of the officer’s risk assessment at the
time of the incident.

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P13

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To Prohibit Evidence and
Testimony Regarding
Plaintiff’s Alleged Gang
Affiliation

DENIED

To mitigate prejudice, a jury instruction shall be
tendered that Velasquez’s gang affiliation shall not
guide the jury’s decision on ultimate liability in this
case.

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Officer Bell shall be made available for a half-day
deposition if he will testify at trial.

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GRANTED

Evidence that Velasquez illegally possessed firearms at
a different time and in a different location, and that the
police did not uncover evidence of these firearms until
after the incident is not relevant to prove the state of
mind of the Defendant officers at the time of the arrest.
The evidence also poses a substantial risk of unfair
prejudice. It will not be admitted. If Velasquez argues
that he has never illegally possessed firearms, then the
evidence may be admitted.

P15

To Prohibit
Cross-Examination Beyond
the Scope of Direct
Examination

DENIED

Fed. R. Evid. 611(b) grants the court the discretion to
permit questioning beyond the scope of direct
examination on cross. Here, numerous witnesses have
been noticed by the parties. It therefore is sensible to
minimize the number of trips each witness must make to
court. The parties shall meet-and-confer on this issue.

P16

To Prohibit Legal
Argument During Opening
Statements

GRANTED

Unopposed.

P17

To Allow Jury Members to
Visually Inspect the Vehicle
Plaintiff was Sitting in
When He was Injured

GRANTED

The court will permit an inspection of the car.
No testimony or arguments at the site will be permitted.
The parties shall meet-and-confer as to a stipulated
explanation the court can provide to the jury about the
current state of the car.

P18

To Preclude Testimony and
Evidence Concerning
Officer Brett Moiseff’s
Confidential Informant
and Her Alleged
Statements Made Out of
Court

DENIED

The out-of-court statements at issue are not being
offered to show the truth of the matter asserted (i.e.
Velazquez was armed), but rather their impact on the
listener (i.e. whether officers may have received
information that informed their subjective belief that
Velazquez was armed).

P19

To Preclude Testimony and
Evidence Concerning Gary
Cates’/Danny Chavez’
Confidential Informant
and His/Her Alleged
Statements Made Out of
Court

DENIED

The out-of-court statements at issue are not being
offered to show the truth of the matter asserted (i.e.
Velazquez was armed), but rather their impact on the
listener (i.e. whether officers may have received
information that informed their subjective belief that
Velazquez was armed).

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P14

To Prohibit Evidence and
Testimony Involving PostIncident Facts and Seizures

United States District Court
For the Northern District of California

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Case No. 5:11-cv-03588-PSG
OMNIBUS ORDER RE: MOTIONS IN LIMINE

P20

To Preclude Testimony and
Evidence Concerning
Officer Brett Moiseff’s
Confidential Informant
and Her Alleged
Statements Made Out of
Court

DENIED

The out-of-court statements at issue are not being
offered to show the truth of the matter asserted (i.e.
Velazquez was armed), but rather their impact on the
listener (i.e. whether officers may have received
information that informed their subjective belief that
Velazquez was armed).

P21

To Require Officers to
Wear Civilian Clothing and
to Allow Plaintiff to Wear
Civilian Clothing

GRANTED

Unopposed.

P22

To Preclude Testimony and
Evidence Concerning
Defendants’ SWAT
Training and Reaction
Time Theories

GRANTED

Defendants may not introduce testimony based on
information not disclosed during discovery. If
Defendants believed the existing protective order was
insufficient, Defendants should have moved to modify
the protective order.

P23

To Preclude Testimony and
Evidence Concerning
Arrests and Charges That
Plaintiff Was Not
Convicted Of

GRANTEDIN-PART

This motion requires a balancing of the probative nature
of previous arrests and charges on the officers’ state of
mind at the time of the incident as weighed against the
prejudicial value of such evidence. Evidence of
detentions and arrests that did not lead to criminal
charges may not be admitted. Evidence of detentions
and arrests that led to filed charges may be admitted.

D1

To Exclude Evidence of
Prior Internal Affairs
Investigations and/or
Personnel Records

GRANTED

Absent a showing “sufficient to support a finding” that
either officer’s prior shootings implicate Monell claims
in this case, evidence of the prior shootings may not be
introduced in this case. 1 No such showing has been
made in this case. The evidence of the prior shootings
may not be offered.

D2

To Exclude Undisclosed
Evidence

GRANTED

Unopposed.

D3

To Exclude Reference to
Sgt. Middlekauff’s
Band Name

GRANTED

Unopposed.

DENIED

Although it is true that Defendants were not required to
use the least intrusive technique to arrest Velasquez,
alternatives may nonetheless constitute relevant
evidence. As Velasquez points out, to pursue a
negligence claim, he must establish what a reasonable
person would have done.

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United States District Court
For the Northern District of California

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D4

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To Exclude Hypothetical
Possible Alternative Means
for Arresting Plaintiff

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See Fed. R. Evid. 104(b) (“When the relevance of evidence depends on whether a fact exists,
proof must be introduced sufficient to support a finding that the fact does exist.”).
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Case No. 5:11-cv-03588-PSG
OMNIBUS ORDER RE: MOTIONS IN LIMINE

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To Exclude Photographs of
Plaintiff’s Injuries
Immediately After the
Shooting

DENIED

Because the probative value of the evidence is not
substantially outweighed by the risk of unfair prejudice
these relevant photographs may be admitted.

GRANTED

Absent a showing “sufficient to support a finding” that
either officer’s prior shootings implicate Monell claims
in this case, evidence of the prior shootings may not be
introduced in this case. 2 No such showing has been
made in this case. The evidence of the prior shootings
may not be offered to prove the officers’ propensity to
discharge their weapons inappropriately. 3

GRANTEDIN-PART

The court finds that judicial economy would not be
served by bifurcating this case. The parties and the
court will benefit from timely resolution of this case.
No discussion of Defendants net worth will be
permitted. The court will permit Plaintiff to elicit
testimony about the Defendants’ salary and benefits.

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D6

To Exclude Testimony
Regarding Prior Shooting
Incidents

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To Bifurcate Trial and to
Exclude Evidence of
Defendants’ Financial
Condition or Net Worth

D8

To Exclude Reference to
the Motions for Summary
Judgment

GRANTEDIN-PART

Neither side may reference the court’s order denying the
parties’ cross-motions for summary judgment, but the
court will permit reference to declarations from
percipient witnesses supporting the parties’ summary
judgment motions.

D9

To Exclude Evidence of
Settlement Discussions

GRANTED

Unopposed.

D10

To Exclude Testimony
From Plaintiff’s Expert
Streed Regarding
Defendants’ Alleged
Failure to Follow POST
Guidelines for “Passive
Resistance” Subjects

DENIED

Pursuant to the Ninth Circuit’s holding in Sheehan v.
City & County of San Francisco although “the mere fact
that an expert disagrees with an officer’s actions does
not itself compel the conclusion that the officer’s
actions were unreasonable,” a “rational jury may rely
upon expert evidence in assessing whether an officer's
use of force” was unreasonable. 4

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To Exclude Evidence That
Velasquez Did Not Have a
Gun

DENIED

This evidence is relevant to test Defendants’ allegations
that Velasquez made a sudden movement towards his
waistband for a hand gun.

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United States District Court
For the Northern District of California

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See Fed. R. Evid. 104(b) (“When the relevance of evidence depends on whether a fact exists,
proof must be introduced sufficient to support a finding that the fact does exist.”).
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See Fed. R. Evid. 404(a)(1) (“Evidence of a person's character or character trait is not admissible
to prove that on a particular occasion the person acted in accordance with the character or trait.”).

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Case No. 11-cv-16401, 2014 WL 667082, at *10 (9th Cir. Feb. 21, 2014).
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Case No. 5:11-cv-03588-PSG
OMNIBUS ORDER RE: MOTIONS IN LIMINE

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D12

D13

Exercise of the “Informer’s
Privilege” to Protect the
Identity of the Confidential
Informants

D14

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To Exclude Evidence of the
Defense Experts’ Work on
High Profile or
Controversial Cases

To Preclude Plaintiff’s
Counsel’s Reference to his
Former Service as an
Alaska State Trooper

DENIED

Velasquez may elicit testimony on Defendants’ expert’s
prior engagements as an expert witness. The court will
not permit any appeal to emotion in this area and will
entertain any appropriate objection.

DENIED

Because the Defendants failed to formally invoke
informer’s privilege, the privilege has been waived.
The name of the informant shall be revealed. If
Defendants do not have information related to the
informant’s identity in their possession, custody, and
control they have no obligation to turn it over.

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GRANTEDIN-PART

United States District Court
For the Northern District of California

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D15

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To Exclude Evidence of
Valley Medical Center
Billings

DENIED

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D16

To Dismiss Claims Against
Police Chief Stephen Lodge

Because Santa Clara Valley Medical Center may intend
to recover the cost of Velasquez’s medical bills, the
evidence is relevant and will not be excluded from trial
at this time.
If insufficient foundation for this evidence is laid at
trial, the court will entertain any appropriate objection
at trial.

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No reference to Mr. Callis’ former service as an Alaska
state trooper will be permitted by counsel or any witness
in court. At the same time, relevant deposition excerpts
may be introduced at trial even though they allude to
Callis’ former service.

DENIED

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Because Defendants’ apparent Rule 12(b)(3) motion has
not pointed out with adequate sufficiency the
shortcomings of Velasquez’s complaint as it pertains to
Chief Lodge, judgment on the pleadings is not
warranted on the eve of trial – even if at least one other
court from this district has permitted such a procedure at
the motion in limine stage of a case, albeit under
unusual facts. 5
In this case, Velasquez has alleged that Lodge ratified
the unconstitutional conduct at issue and therefore his
Monell claim survives a motion for judgment on the
pleadings.

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D17

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To Preclude Testimony by
Experts as to Legal
Questions

DENIED

Velasquez’s experts shall not be precluded from using
legal terminology in offering their expert opinion in this
case. Experts may confirm the legal standard as part of
their testimony.

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See Estate of Bojcic v. City of San Jose, Case No. 05-cv-3877-RS, 2007 WL 3232221, at *1
(N.D. Cal. Oct. 31, 2007)
In their reply brief in support of the motion for summary judgment, defendants raised for
the first time an argument that the fifth claim for relief fails to state a cognizable claim
under California law, given the authority of Munoz v. City of Union City, 120 Cal. App. 4th
1077 (2004).4 The Court’s order on the motion declined to reach that argument, noting that
it would be unfair to plaintiffs to decide the motion on grounds not raised in the moving
papers.

Defendants have now again raised the issue of whether the fifth claim for relief states a
claim, by way of their motions in limine.
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Case No. 5:11-cv-03588-PSG
OMNIBUS ORDER RE: MOTIONS IN LIMINE