Micaela Ochoa v. Santa Clara County Office of Education et al

Filing 93

Order by Magistrate Judge Howard R. Lloyd re: 58 , 62 , 63 , and 64 , Plaintiff's Motion in Limine No. 2 and Defendants' Motions in Limine Nos. 2, 3, and 4. Signed on 11/20/2017. (hrllc3S, COURT STAFF) (Filed on 11/20/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MICAELA OCHOA,

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Plaintiff,

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ORDER ON MOTIONS IN LIMINE

v.

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Dkt. Nos. 58, 62, 63, 64

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SANTA CLARA COUNTY OFFICE OF
EDUCATION, et al.,

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United States District Court
Northern District of California

Case No.16-cv-03283-HRL

Defendants.

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Plaintiff Micaela Ochoa (“Ochoa”) sues her former employer, the Santa Clara County

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Office of Education (“SCCOE”), and its superintendent, Jon Gundry (“Gundry”) (collectively

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“Defendants”), for retaliatory termination in violation of her First Amendment rights and

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California Labor Code Section 1102.5. This order addresses four motions in limine presented by

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the parties.1

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I.

PLAINTIFF’S MOTION IN LIMINE NO. 2
Ochoa seeks an order excluding Patty White and Richard Noack from testifying at trial.

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White and Noack are both attorneys who served as outside counsel to SCCOE staff on labor and

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employment issues. Ochoa argues that Defendants previously asserted attorney-client privilege as

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to communications involving the two attorneys, and that Defendants are attempting to belatedly

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raise an implicit advice of counsel defense. Defendants dispute the extent to which they claimed

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privilege as to communications with White and Noack, and argue that White and Noack will

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testify only to the non-privileged portions of their communications with Defendants. The Court

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grants Ochoa’s motion in part and denies it in part.

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The Court presumes that the reader is familiar with the facts of the case, which are discussed in
the Court’s order on Defendants’ motion for summary judgment. Dkt. No. 52.

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During discovery, Defendants repeatedly asserted attorney-client privilege as to

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communications involving White and Noack. Most notably, in March 2017, Defendants produced

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redacted e-mails between Philip Gordillo, SCCOE’s human resources manager, and the two

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attorneys. Defendants included a privilege log with the e-mail production. After the close of fact

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discovery, however, Defendants proposed to call White and Noack as witnesses to testify to events

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leading up to Ochoa’s termination, the preparation of Ochoa’s termination letter, and, in the case

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of White only, SCCOE’s response to Public Records Act requests. Defendants then produced

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unredacted versions of the e-mails.

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The attorney-client privilege attaches to confidential communications between an attorney
and a client for the purpose of conveying or obtaining legal advice. The privilege protects “the

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United States District Court
Northern District of California

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substance of the communications . . . not the fact that there have been communications.” United

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States v. Kendrick, 331 F.2d 110, 113 (4th Cir. 1964). While voluntary disclosure of part of a

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confidential communication can waive the privilege as to the rest of that communication,

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Handgards, Inc. v. Johnson & Johnson, 413 F. Supp. 926, 929 (N.D. Cal. 1976), disclosing that a

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communication occurred and when it occurred does not constitute waiver, Western United Life

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Assurance Co. v. Fifth Thrid Bank, No. 02-C-7315, 2004 WL 2583916 (N.D. Ill. Nov. 12, 2004)

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(“Finding a partial disclosure and resultant waiver based on [an exchange revealing that a

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conversation occurred and a “terse” suggestion of the topic] would be tantamount to finding a

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waiver based on the mention and cursory description of a document in a privilege log.”).

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In Columbia Pictures Television, Inc. v. Krypton Broadcasting of Birmingham, Inc., 259

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F.3d 1186 (9th Cir. 2001), the Ninth Circuit affirmed the district court’s decision to preclude an

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advice of counsel defense where the defendant refused to answer questions regarding “relevant

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communications with counsel until the ‘eleventh hour[.]’” Columbia Pictures, 259 F.3d at 1196.

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When the defendant later attempted to argue that he had relied on the advice of his attorney, the

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court was within its discretion to prevent the defendant from testifying to communications he had

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previously claimed were privileged. Id. “The privilege which protects attorney-client

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communications may not be used both as a sword and a shield.” Id. (citation omitted).

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Here, to the extent that Defendants are offering the testimony of White and Noack as part
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of an advice of counsel defense, the Court grants Ochoa’s motion. Defendants did not properly

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assert this defense in their answer or their motion for summary judgment. Further, Defendants

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asserted attorney-client privilege as to much of the substance of the communications between

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Gordillo and White and Noack. Attorney-client privilege may not be used as a shield during

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discovery, and then a sword in the run-up to trial. See Columbia Pictures, 259 F.3d at 1196.

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However, Defendants may present the non-privileged aspects of the communications

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between Gordillo and White and Noack (i.e., the fact that the communications occurred, when

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they occurred, and the subject of those communications, as described in the privilege log).

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Defendants produced this information to Ochoa during discovery, and the timing of these
communications is probative of Defendants’ assertion that Ochoa’s dismissal was not the result of

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United States District Court
Northern District of California

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retaliation.
To summarize the Court’s ruling, Defendants may not offer the testimony of White and

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Noack as part of a belated advice of counsel defense. Further, White and Noack may not testify to

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the substance of their communications with Defendants (the previously-redacted portions of the

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March 2017 e-mail production). The two witnesses may testify only to the fact that the

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communications occurred, when they occurred, and the general subject matter of the

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communications.

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II.

DEFENDANTS’ MOTION IN LIMINE NO. 2
Defendants seek to exclude evidence that Maribel Medina, SCCOE’s former general

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counsel, accused Defendants of racial and gender discrimination in a separate lawsuit. The Court

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denies the motion, except as detailed below.

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Defendants ended Medina’s employment around the time Ochoa was dismissed.

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Defendants argue that Medina’s claims are irrelevant to Ochoa’s lawsuit, and that her testimony

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would confuse the jury and/or be unduly prejudicial. Additionally, Defendants argue that

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Medina’s claims constitute improper character evidence.

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Evidence of a wrongful act “is not admissible to prove a person’s character in order to

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show that on a particular occasion the person acted in accordance with the character.” Fed. R.
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Evid. 404(b)(1). Evidence of a wrongful act may be admissible, however, to prove motive or

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intent. Fed. R. Evid. 404(b)(2). In cases involving alleged employment retaliation, courts have

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admitted “me too” evidence – evidence that other employees alleged that the defendant employer

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retaliated against them – as probative of the employer’s retaliatory intent or motive. See Moniz v.

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City of Delano, No. 1:13-cv-00093-JLT, 2015 WL 128124 (E.D. Cal. Jan. 8, 2015). That said, a

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court may nonetheless exclude relevant evidence if its probative value is substantially outweighed

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by a danger of unfair prejudice. Fed. R. Evid. 403.

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Evidence of Medina’s claims against Defendants is character evidence, but it is probative
of Gundry’s retaliatory motive or intent. Specifically, her testimony regarding (1) alleged race-

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and gender-based discrimination she experienced, (2) Gundry’s alleged violation of California

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United States District Court
Northern District of California

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Education Code § 35041.5, (3) Medina’s complaints about (1) and (2), and (4) Gundry’s

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termination of Medina’s employment, is all admissible as “me too” evidence. That said, the

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probative value of the details of Medina’s complaints concerning Gundry’s racial discrimination –

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that Gundry asked Medina to say “si Señor” to him instead of “yes, sir,” and that Medina alleges

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that Gundry treated her “like a Mexican day laborer instead of an attorney,” Dkt. No. 84 – is

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substantially outweighed by a danger of unfair prejudice.

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Therefore, Medina may testify, in general terms, about the racial- and gender-based

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discrimination she allegedly experienced, and to subsequent events (the fact of her complaints and

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termination). She will not, however, be permitted to describe the details of Gundry’s alleged

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discriminatory acts.

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As to Gundry’s alleged violation of California Education Code § 35041.5, the Court does

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not wish to get embroiled in a mini-trial over whether Gunry violated the statute. Accordingly,

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Medina will be limited to providing a high-level description of her complaint and of Gundry’s

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response (i.e., that Gundry terminated her employment after she complained that he was violating

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the Education Code by hiring outside counsel when she thought it was not lawful to do so).

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Gundry will be limited to a brief denial of Medina’s claims, at a similar level of generality.

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III.

DEFENDANTS’ MOTION IN LIMINE NO. 3

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Defendants seek an order precluding evidence of the specific details of Ted O’s complaint

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to SCCOE Board Member Darcie Green in February 2015. Defendants assert that Ochoa merely

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passed on O’s complaint, and that O’s complaint is not relevant as it was not Ochoa’s speech.

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Defendants also argue that O’s complaint is improper character evidence.
Ochoa supervised O, and Gundry dealt with (and allegedly yelled at) both Ochoa and O in

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reference to the W-2 incident. Whether Ochoa complained to Green or merely passed along O’s

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complaint is a question of fact for the jury that is not appropriately resolved through a motion in

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limine. In addition, Ochoa offers evidence of Gundry’s actions during the W-2 incident not as
character evidence, but as evidence of the circumstances that lead to Ochoa’s alleged speech and

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United States District Court
Northern District of California

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the events that followed. Further, the specific details of O’s complaint are relevant to whether

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Ochoa had “reasonable cause to believe” that the complaint to Green “disclose[d] a violation of

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state or federal statute.” See Cal. Lab. Code § 1102.5.
Finally, O’s expected testimony as to his level of fear of Gundry is relevant to whether

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Ochoa had reasonable cause to believe that the complaint to Green disclosed a violation of a

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statute. The probative value of O’s expected testimony on this point does not seem to be

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substantially outweighed by a danger of unfair prejudice to Gundry. See Fed. R. Evid. 403.
Defendants’ motion is denied.

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IV.

DEFENDANTS’ MOTION IN LIMINE NO. 4
Defendants seek to exclude Golden Rule and “Reptile Theory” arguments at trial. Golden

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Rule arguments ask the jury to put themselves in the shoes of the plaintiff. Reptile Theory

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arguments target the primitive (reptilian) parts of jurors’ brains by appealing to jurors’ self-interest

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as to their safety and the safety of their community. Defendants seek an order precluding Ochoa

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from arguing that jurors should: (1) base their liability verdict on how jurors would have acted if

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they were in Ochoa’s shoes; (2) base their damages award on the amount they would want for

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themselves; (3) deliver a verdict to make the community safer and/or to protect their own tax

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dollars; and (4) other golden rule or reptilian arguments.
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It is improper for attorneys to appeal to jurors’ self-interests as taxpayers and to imply that

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the jurors will be “personally or financially at risk” if they return a certain verdict. Cassim v.

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Allstate Ins. Co., 33 Cal. 4th 780, 797 (2004). Additionally, it is improper for counsel to ask

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jurors to place themselves in the plaintiff’s shoes while calculating damages. Neumann v. Bishop,

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59 Cal. 3d 451 (1976). Golden Rule arguments are not, however, necessarily improper when

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addressed to issues of liability or the reasonableness of a party’s conduct. The Guardian Life Ins.

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Co. of Am. v. Andraos, No. CV 07-05732 SJO (FMOx), 2009 WL 10674144 (C.D. Cal. Sept. 10,

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2009).

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Accordingly, Defendants’ fourth motion in limine is granted in part. Ochoa may not make
Golden Rule arguments about damages, and may not appeal to jurors’ self-interests in the verdict’s

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United States District Court
Northern District of California

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effect on their own tax dollars. The remainder of Defendants’ motion is denied. Defendants’

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request that Ochoa be precluded from making Golden Rule arguments as to liability is not

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supported by case law, and Defendants’ request to exclude “reptilian” arguments does not seem to

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be implicated by this case. The Court denies these portions of the motion without prejudice to

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Defendants objecting to specific lines of questioning or arguments as they actually occur at trial.

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IT IS SO ORDERED.
Dated: November 20, 2017

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HOWARD R. LLOYD
United States Magistrate Judge

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