Burrell et al v. County of Santa Clara et al

Filing 129

ORDER RULING ON OBJECTIONS TO OPENING STATEMENTS AND EXHIBITS FOR TRIALDAY 1. Signed by Judge Lucy H. Koh on 5/05/2013. (lhklc3, COURT STAFF) (Filed on 5/5/2013)

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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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ALMA BURRELL, VICKYE HAYTER,
MARGARET HEADD,

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Plaintiffs,
v.
COUNTY OF SANTA CLARA, DAN
PEDDYCORD, RAE WEDEL, MARTY
FENSTERSHEIB AND DOES 1 THROUGH
50, INCLUSIVE,
Defendants.

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Case No.: 11-CV-04569-LHK

RULING ON OBJECTIONS TO
OPENING STATEMENTS AND
EXHIBITS FOR TRIAL—DAY 1

A pretrial conference was held on May 2, 2013. Trial is set to begin on Monday, May 6,
2013, at 9:00 a.m., and is scheduled to last five days. In order to limit the issues that need to be
addressed prior to the beginning of trial, the Court issues the following rulings:
OBJECTIONS TO DEMONSTRATIVES TO BE USED IN PLAINTIFF’S OPENING
STATEMENT AND EXHIBITS FOR TRIAL—DAY 1:
After reviewing the parties’ briefing, considering the record in the case, and balancing the
considerations set forth in Federal Rule of Evidence (“FRE”) 403, the Court rules on the parties’
objections as follows:
A. Defendants’ Objections to Burrell’s May 6, 2013 Opening Statement
Demonstratives
Demonstrative
Principles of Equal
Employment
Opportunity

Court’s Ruling on Objections
Sustained. The principles set forth in this demonstrative, which derive
from statutes and case law, constitute legal argument, which is improper for
opening statement.

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Case No.: 11-CV-04569-LHK
RULING ON OBJECTIONS TO OPENING STATEMENTS AND EXHIBITS FOR TRIAL—DAY 1

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Plaintiff’s Proposed
Jury Instructions
Nos. 26, 28, and 37

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Report prepared by
Margo Rich Ogus,
PhD

Deposition Excerpts
of Dan Peddycord
and Rae Wedel

United States District Court
For the Northern District of California

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B. Defendants’ Objections to Exhibits and Testimony of Plaintiff Alma Burrell
Exhibit Number
Exhibit 106

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Exhibit 166
Exhibit 167
Exhibit 260

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Exhibit 254
Exhibit 262

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Sustained. The parties stipulated to preliminary jury instructions, which did
not include any substantive jury instructions, and thus did not include
Plaintiff’s Proposed Jury Instructions Nos. 26, 28, and 37. Defendants have
filed detailed objections to Plaintiff’s Proposed Jury Instructions Nos. 26,
28, and 37. The Court will rule on these objections during the jury
instruction conference at the close of evidence. Thus, Plaintiffs cannot
present their disputed jury instructions to the jury. Moreover, presentation
of these disputed substantive jury instructions during opening statement is
improper legal argument.
Sustained. Defendant has withdrawn this expert and does not intend to call
this witness at trial. Plaintiff did not respond to Defendant’s objection to
Plaintiff’s Exhibit 338, which is the expert report of this witness. ECF No.
126 and 127. The Court will not allow as demonstratives during opening
statement any exhibits for which admissibility is disputed.
Sustained. Both parties have indicated that Dan Peddycord and Rae Wedel
will testify live during the trial. Neither party designated the deposition
transcripts of Dan Peddycord or Rae Wedel. Consequently, these transcript
excerpts will not be admitted into evidence. If Dan Peddycord and Rae
Wedel testify during trial contrary to these excerpts, Plaintiff may use these
excerpts to impeach the witnesses. However, even if used for
impeachment, these excerpts would not be admitted into evidence.

Exhibit 275

Court’s Ruling on Objections
Overruled. Ms. Burrell received this document from her office manager.
Ms. Burrell then maintained this document in her records after receiving it.
The Court finds this foundation to be acceptable for introducing it into
evidence as a record made and kept in the course of a regularly conducted
business activity, pursuant to FRE 803(6).
Sustained. Ms. Burrell cannot lay a proper foundation for this document.
Sustained. Ms. Burrell cannot lay a proper foundation for this document.
Overruled. The Court denied Defendants’ Motion in Limine No. 24 to
Exclude Evidence of Plaintiff Vickye Hayter’s 2007 Application for
Reclassification and the Denial of Same, ECF No. 76, as to Vickye
Hayter’s December 2007 application for reclassification and the denial
thereof. ECF No. 111. This document relates to the denial of the
December 2007 application.
Sustained. Ms. Burrell cannot lay a proper foundation for this document.
Overruled. The Court denied Defendants’ Motion in Limine No. 24 to
Exclude Evidence of Plaintiff Vickye Hayter’s 2007 Application for
Reclassification and the Denial of Same, ECF No. 76, as to Vickye
Hayter’s December 2007 application for reclassification and the denial
thereof. ECF No. 111. This document relates to the denial of the
December 2007 application.
Overruled. The Court denied Defendants’ Motion in Limine No. 24 to
Exclude Evidence of Plaintiff Vickye Hayter’s 2007 Application for
Reclassification and the Denial of Same, ECF No. 76, as to Vickye
Hayter’s December 2007 application for reclassification and the denial

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Case No.: 11-CV-04569-LHK
RULING ON OBJECTIONS TO OPENING STATEMENTS AND EXHIBITS FOR TRIAL—DAY 1

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Exhibit 335
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Exhibit 337
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Exhibit 338

United States District Court
For the Northern District of California

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thereof. ECF No. 111. This document relates to the denial of the
December 2007 application.
Overruled. Defendants argue that Ms. Burrell cannot lay a proper
foundation for Plaintiff’s Exhibit 335, a summary classification report
prepared by Christine Goodson. Plaintiff argues that Ms. Burrell received
the document in the regular course of business. The Court finds this
foundation to be acceptable for introducing this document as record made
and kept in the course of a regularly conducted business activity, pursuant
to FRE 803(6).
Overruled. The Court denied Defendants’ Motion in Limine No. 24 to
Exclude Evidence of Plaintiff Vickye Hayter’s 2007 Application for
Reclassification and the Denial of Same, ECF No. 76, as to Vickye
Hayter’s December 2007 application for reclassification and the denial
thereof. ECF No. 111. This document relates to the denial of the
December 2007 application.
Sustained. Plaintiff did not respond to Defendant’s objection. ECF No.
127. Moreover, Defendant has withdrawn Dr. Ogus as an expert and does
not intend to call Dr. Ogus at trial. Ms. Burrell cannot lay a foundation for
Dr. Ogus’ expert report.

C. Plaintiff’s Proposed Exhibits for Day 1 Trial Testimony Supplemental, ECF No.
125

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Plaintiff appears to have untimely disclosed a demonstrative exhibit for tomorrow in ECF
No. 125. Defendant shall file any objection to this exhibit by 7 p.m. May 5, 2013.
IT IS SO ORDERED.

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Dated: May 5, 2013

_________________________________
LUCY H. KOH
United States District Judge

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Case No.: 11-CV-04569-LHK
RULING ON OBJECTIONS TO OPENING STATEMENTS AND EXHIBITS FOR TRIAL—DAY 1