Dees et al v. G.G. et al

Filing 119

ORDER on Motions in Limine and Other Pretrial Issues. The Court denies Plaintiffs' Motions in Limine Nos. 1, 3, 4, and 5 (ECF Nos. 96, 98, 99, & 100); grants in part and denies in part Plaintiffs' Motion in Limine No. 2 (ECF No. 97); denies Defendants' Motions in Limine Nos. 2, 3, and 4 (ECF Nos. 102, 103, & 104); grants in part and denies in part Defendants' Motion in Limine No. 1 (ECF No. 101). Signed by Judge Roger T. Benitez on 1/17/2017. (knb)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 SARA DEES; L.G., a minor, and G.G., a minor, by and through their Guardian ad Litem, Robert Schiebelhut, 13 14 15 16 17 18 19 20 Case No.: 3:14-cv-0189-BEN-DHB ORDER ON MOTIONS IN LIMINE AND OTHER PRETRIAL ISSUES Plaintiffs, v. COUNTY OF SAN DIEGO; SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY; CAITLIN McCANN; SRISUDA WALSH; GLORIA ESCAMILLAHUIDOR; COREY KISSEL; NORMA RINCON; ALBERTO BORBOA, and DOES 4 through 100, inclusive, Defendants. 21 22 23 This case, which arises out of a child abuse investigation of Plaintiffs’ family 24 25 conducted by the County of San Diego, is set to begin trial on February 7, 2017. Now 26 before the Court are several motions in limine to exclude evidence and pretrial briefs on 27 three issues contested by the parties. The Court will address each issue in turn. 28 /// 1 3:14-cv-0189-BEN-DHB 1 2 I. Pretrial Briefs On December 13, 2016, at the pretrial conference, the Court ordered additional 3 briefing on three issues: (1) whether deliberate indifference is a required element of 4 Plaintiffs’ Monell claim against the County of San Diego; (2) whether Defendant Caitlin 5 McCann is entitled to absolute immunity from Plaintiffs’ claim of false imprisonment 6 under California Government Code section 821.6; and (3) Plaintiffs’ burden of proof on 7 their Fourteenth Amendment due process claim against McCann. 8 A. Deliberate Indifference Element in Monell Claim 9 Previously, the parties did not dispute whether deliberate indifference is a required 10 element for Monell liability. However, Plaintiffs now argue that deliberate indifference is 11 not a required element. They further contend that this Court should enter summary 12 judgment on their Monell claim related to McCann’s interview of the children at school 13 because the Court has already found that undisputed facts establish all of the elements of 14 the claim. Defendants appear to concede that Plaintiffs do not need to prove deliberate 15 indifference but they maintain that Plaintiffs “need to show the County of San Diego 16 intentionally deprived them of a federally protected right, and that the County’s 17 deliberate conduct in forming the policy was the moving force behind the alleged 18 injuries.” (Defs.’ Reply to Pls.’ Br. re Monell Claim at 4, ECF No. 107 (emphasis 19 added)). They assert that the Court has not already found, as a matter of law, all elements 20 of Plaintiffs’ Monell claim and therefore summary judgment would be inappropriate. 21 Plaintiffs must show deliberate indifference when they “allege that through its 22 omissions the municipality is responsible for a constitutional violation committed by one 23 of its employees, even though the municipality’s policies were facially constitutional, the 24 municipality did not direct the employee to take the unconstitutional action, and the 25 municipality did not have the state of mind required to prove the underlying violation.” 26 Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1186 (9th Cir. 2002) (emphasis in original), 27 overruled on other grounds by Castro v. Cnty. of Los Angeles, 833 F.3d 1060 (9th Cir. 28 2016). In such a case, plaintiffs must show that “the municipality’s deliberate 2 3:14-cv-0189-BEN-DHB 1 indifference led to its omission and that the omission caused the employee to commit the 2 constitutional violation.” Id. 3 However, Plaintiffs are not bringing a claim against the County for its failure to 4 act. Rather, they assert that the County is liable under the “direct path” to Monell 5 liability. Under this route, “a plaintiff can show that a municipality itself violated 6 someone’s rights or that it directed its employee to do so.” Id. at 1185. “In considering 7 whether a municipality itself violated a person’s rights or directed its employee to do so, 8 the focus is on the municipality’s ‘policy statement, ordinance, regulation, or decision 9 officially adopted and promulgated by that body’s officers.’” Id. at 1187. Plaintiffs 10 claim that the County’s school interview policy is itself unconstitutional because it allows 11 children to be interviewed without parental notice or consent when the parent is not 12 suspected of abuse. The focus here is on the County’s policy, not its omissions or 13 inaction. Therefore, it is clear that deliberate indifference is not a required element for 14 the type of Monell claim that Plaintiffs bring. See, e.g., Mann v. Cnty. of San Diego, No. 15 3:11-cv-0708-GPC-BGS, 2016 WL 3365746, at *8 (S.D. Cal. June 17, 2016) (finding 16 that plaintiffs need not show deliberate indifference where plaintiffs challenged County 17 policy). 18 The question remains whether Plaintiffs need to prove that the County 19 “intentionally deprived them of a federally protected right, and that the County’s 20 deliberate conduct in forming the policy was the moving force behind their alleged 21 injuries.” (Defs.’ Reply to Pls.’ Br. re Monell Claim at 4). To the extent that the County 22 argues that Plaintiffs must prove that the County knew it enacted an unconstitutional 23 policy, Monell does not require such a high showing. Lest there be any confusion, the 24 Court reaffirms its previous statement that it follows the Ninth Circuit’s Model Jury 25 Instructions, where applicable. Ninth Circuit Model Jury Instruction 9.5 applies to 26 section 1983 claims against municipalities based on official policy, practice, or custom. 27 The instruction sets forth the applicable elements to prove Plaintiffs’ Monell claim: 28 (1) Defendant’s employee acted under color of state law; 3 3:14-cv-0189-BEN-DHB 1 2 3 4 (2) The acts of defendant’s employee deprived the plaintiffs of their particular rights under the Constitution; (3) The defendant’s employee acted pursuant to an expressly adopted official policy of defendant; and 5 (4) The defendant’s official policy caused the deprivation of the plaintiff’s rights by 6 the defendant’s employee; that is, the defendant’s official policy is so closely 7 related to the deprivation of plaintiff’s rights as to be the moving force that 8 caused the ultimate injury. 9 The instruction explains that it should be used in conjunction with an applicable 10 “particular rights” instruction that states the additional elements a plaintiff must establish 11 to prove the violation of the particular constitutional rights at issue. The Court sees no 12 reason not to adopt this instruction for Plaintiffs’ Monell claim. 13 As to Plaintiffs’ argument that the Court should enter summary judgment in their 14 favor on the Monell claim, the Court declines to do so. Plaintiffs must still put forth facts 15 to establish all of the elements of their Monell claim. For instance, Plaintiffs must prove 16 that L.G. and G.G. were seized within the meaning of the Fourth Amendment during the 17 school interviews. Plaintiffs never moved for summary judgment on this issue, and the 18 facts regarding the circumstances of the interview are disputed. Thus, the Court denies 19 Plaintiffs’ request that summary judgment be entered on the Monell claim. 20 B. Absolute Immunity 21 Defendants contend that Defendant McCann is entitled to absolute immunity from 22 Plaintiffs’ false imprisonment claim under California Government Code section 821.6 23 and, accordingly, that this Court should dismiss that claim. Under section 821.6: 24 25 A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause. 26 27 28 4 3:14-cv-0189-BEN-DHB 1 Cal. Gov’t Code § 821.6. Defendants argue that this section provides absolute immunity 2 to social workers who are alleged to have conducted an interview of a child by the use of 3 coercion, as is alleged here. They primarily rely on Olvera v. County of Sacramento, 932 4 F. Supp. 2d 1123, 1177-78 (E.D. Cal. 2013), which held that a social worker had 5 immunity from an intentional infliction of emotional distress claim based on allegedly 6 coercive interviews. There was no claim for false imprisonment. 7 Defendants ignore that the California Supreme Court has narrowly interpreted 8 section 821.6. In Sullivan v. County of Los Angeles, 12 Cal. 3d 710, 719 (1974), the 9 California Supreme Court explained that “the history of section 821.6 demonstrates that 10 the Legislature intended the section to protect public employees from liability only for 11 Malicious prosecution and not for False imprisonment.” The court held that “section 12 821.6 cannot be interpreted to defeat the common law liability for false imprisonment.” 13 Id. at 722. 14 The Ninth Circuit recently considered the scope of section 821.6. Garmon v. Cnty. 15 of Los Angeles, 828 F.3d 837, 847 (9th Cir. 2016). The Ninth Circuit acknowledged that 16 California Courts of Appeal have interpreted section 821.6 more expansively since 17 Sullivan, applying its reach to claims other than malicious prosecution. Nevertheless, 18 “[w]hen interpreting state law, a federal court is bound by the decision of the highest state 19 court.” Id. (internal citations omitted). Thus, the Ninth Circuit determined that “the 20 California Supreme Court would adhere to Sullivan even though California Courts of 21 Appeal have strayed from it.” Id. As a result, the Ninth Circuit held that the district 22 court erred when it dismissed state law claims that were not malicious prosecution claims 23 based on immunity under section 821.6. Id. 24 This Court is bound by Sullivan and Garmon. Defendant McCann is not entitled to 25 immunity from the false imprisonment claim under section 821.6. The Court denies 26 Defendants’ request to dismiss that claim. 27 /// 28 /// 5 3:14-cv-0189-BEN-DHB 1 C. Burden of Proof on Fourteenth Amendment Due Process Claim 2 “[D]ue process violations under the Fourteenth Amendment occur only when 3 official conduct ‘shocks the conscience.’” Gantt v. City of Los Angeles, 717 F.3d 702, 4 707 (9th Cir. 2013) (internal citations omitted). There are two standards to determine 5 whether conduct “shocks the conscience”: whether the official acted with “deliberate 6 indifference” or whether he or she acted with a “purpose to harm,” a more demanding 7 showing. Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008). To determine which 8 standard applies, the critical question is “whether the officers had the opportunity for 9 actual deliberation.” Id. at 1138. The “purpose to harm” standard applies when the 10 official “encounters fast paced circumstances presenting competing public safety 11 obligations,” such as when police officers are in high speed car chases or situations with 12 active shooters. Id. at 1139. Under such circumstances, the official must make a snap 13 judgment because of an escalating situation. Id. at 1137. In contrast, the “deliberate 14 indifference” standard is “employed only when actual deliberation is practical,” such as 15 where “officers have ample time to correct their obviously mistaken detention of the 16 wrong individual, but nonetheless fail to do so.” Id. at 1137, 1139. 17 Here, Plaintiffs contend that they only need to show that McCann acted with 18 deliberate indifference when she interviewed the minor children at their home. 19 Defendants contend that the “purpose to harm” standard should apply. Based on the 20 Court’s understanding of the facts, it has doubts whether Defendants can show that 21 McCann was in such a fast-paced, rapidly evolving situation when she decided to 22 interview the children that the “purpose to harm” standard should apply. However, the 23 Court will withhold a determination on the proper standard until after all of the facts have 24 been presented at trial. 25 Plaintiffs also suggest that they need not make a separate showing that McCann’s 26 conduct “shocks the conscience.” To the extent that Plaintiffs contend that “shocks the 27 conscience” is a separate standard that they need not prove, that is incorrect. That 28 McCann’s conduct “shocks the conscience” is a required element of the Fourteenth 6 3:14-cv-0189-BEN-DHB 1 Amendment claim. The “purpose to harm” and “deliberate indifference” standards are 2 subsets of the “shocks the conscience” element. Id. at 1137. “Each of these [standards] 3 satisfies the broader ‘shocks the conscience’ standard.” Gantt, 717 F.3d at 708. 4 However the parties agree to explain the law in their proposed jury instructions, “shocks 5 the conscience” is an element of the claim, which can be satisfied by a showing that the 6 official acted with “deliberate indifference” or a “purpose to harm.” 7 Finally, Defendants make an offhand request that the Court dismiss Plaintiffs’ 8 Fourteenth Amendment claim because it rests on an invalid legal theory. The Court 9 declines that request. Defendants already presented this argument during summary 10 judgment, and the Court has already ruled that genuine issues of fact preclude summary 11 judgment. 12 II. Motions in Limine 13 Rulings on motions in limine fall entirely within this Court’s discretion. United 14 States v. Bensimon, 172 F.3d 1121, 1127 (9th Cir. 1999) (citing Luce v. United States, 15 469 U.S. 38, 41-42 (1984)). Evidence is excluded on a motion in limine only if the 16 evidence is clearly inadmissible for any purpose. Fresenius Med. Care Holdings, Inc., v. 17 Baxter Int’l, Inc., No. C 03-1431 SBA (EDL), 2006 WL 1646113, at *3 (N.D. Cal. June 18 12, 2006). If evidence is not clearly inadmissible, evidentiary rulings should be deferred 19 until trial to allow questions of foundation, relevancy, and prejudice to be resolved in 20 context. See Bensimon, 172 F.3d at 1127 (when ruling on a motion in limine, a trial court 21 lacks access to all the facts from trial testimony). Denial of a motion in limine does not 22 mean that the evidence contemplated by the motion will be admitted at trial. Id. Instead, 23 denial means that the court cannot, or should not, determine whether the evidence in 24 question should be excluded before trial. Id.; see also McSherry v. City of Long Beach, 25 423 F.3d 1015, 1022 (9th Cir. 2005) (rulings on motions in limine are subject to change 26 when trial unfolds). 27 /// 28 /// 7 3:14-cv-0189-BEN-DHB 1 A. Plaintiffs’ Motions in Limine 2 3 1. Motion No. 1 – Referral Allegations Plaintiffs seek to exclude evidence about details of the allegations that led to the 4 referrals made to the County of San Diego Health and Human Services Agency 5 (“HHSA”). Specifically, they seek to exclude witness testimony about knowledge of the 6 nude photographs of Ka. Dees taken by her father, Robert Dees, at his daughter’s request. 7 They contend that such testimony will be duplicative and cumulative and highly 8 prejudicial to Plaintiffs, causing the jury to focus on the conduct of Robert Dees rather 9 than the constitutional violations at issue. Rather than allow Defendants to present this 10 evidence, Plaintiffs ask the Court to read a short statement to the jury about the nature of 11 the allegations to provide a backdrop to the claims. 12 The Court DENIES Plaintiffs’ motion. The details of the referral allegations are 13 relevant to explain why Defendant McCann sought to interview L.G. and G.G. They are 14 also relevant to Plaintiffs’ request for punitive damages, which requires proof that 15 McCann’s conduct was “malicious, oppressive, or in reckless disregard” of Plaintiffs’ 16 rights. See Ninth Circuit Model Jury Instruction 5.5. Understanding why McCann 17 pursued the investigation, and what she knew before she interviewed Plaintiffs L.G. and 18 G.G., is relevant to proving that she acted with the requisite “evil motive or intent” or 19 “reckless or callous indifference to the federally protected rights” of Plaintiffs. Terry v. 20 McBride, No. 07-2360, 2009 WL 3150252, at *8 (S.D. Cal. Sept. 28, 2009) (citing other 21 cases). 22 Plaintiffs argue that the referral evidence is unfairly prejudicial and violates the 23 privacy rights of Robert Dees and Ka. Dees. As an initial matter, the referral allegations 24 and the investigation that they produced are the very reason for this lawsuit. Second, 25 Plaintiffs have not identified which evidence they believe would be unfairly prejudicial 26 beyond the fact that the same details might be repeated by multiple witnesses. The 27 photographs will not be shown in Court and are protected from disclosure by a protective 28 order issued by the state juvenile court. Further, Plaintiffs cite no law to support their 8 3:14-cv-0189-BEN-DHB 1 contention that Robert and Ka. Dees’ privacy rights will be violated by recounting the 2 information that prompted the investigation. In fact, Plaintiffs’ witness list includes both 3 Robert and Ka. Dees as expected witnesses. 4 Defendants are entitled to present this evidence to the jury, rather than agree to a 5 statement to be read to the jury. To the extent Defendants “attempt to parade witnesses in 6 front of the jury” to recount the details of the HHSA referral, as Plaintiffs anticipate, the 7 better recourse to deal with an attempt to present such evidence is through an appropriate 8 objection at trial. 9 2. Motion No. 2 –Witness Opinion Testimony 10 Plaintiffs seek to exclude the opinions of any “lay witness about whether 11 Defendants’ actions were appropriate or professional, or whether Defendant McCann 12 made any mistakes” as well as the “opinion of any witness regarding whether or not they 13 believed the photographs themselves were appropriate.” (Pls.’ Mot. at 2 (emphasis in 14 original)). They argue that such opinions are irrelevant, prejudicial, and would confuse 15 the jury. 16 The Court reserves ruling on the admissibility of lay witness opinion testimony 17 about McCann’s actions and professionalism. Under Federal Rule of Evidence 602, a lay 18 witness may testify to a matter only if he or she has personal knowledge of the matter. 19 Fed. R. Evid. 602. And, a lay witness’s opinion must be rationally based on the witness’s 20 perception and helpful to the trier of fact. Fed. R. Evid. 701. Depending on the witness 21 and the question, such testimony may be admissible. 22 As to Plaintiffs’ request that all witnesses should be precluded from testifying 23 about whether “they believed the photographs themselves were appropriate,” the Court 24 agrees that it would be irrelevant to ask a witness whether he or she believed it was 25 appropriate for Robert Dees to take the photographs. However, to the extent a witness 26 opines about his or her reactions to the photographs, such testimony could be relevant if 27 the reactions were shared with McCann and she took certain investigatory steps in 28 9 3:14-cv-0189-BEN-DHB 1 response. The Court will rule on objections to specific questions at trial. Therefore, the 2 motion is GRANTED in part and DENIED in part. 3 4 3. Motion No. 3 – Speculation or Inference Plaintiffs move to exclude “Defendants, . . . their counsel and witnesses, from 5 speculating or inferring outside the evidence.” (Pls.’ Mot. at 1). They offer three 6 examples of issues that might be covered by this motion: (1) testimony that there were 7 more than two pictures taken of Ka. Dees; (2) testimony that the photographs were taken 8 for any purpose other than to document Ka. Dees’s puberty; and (3) testimony that Ka. 9 Dees looked “horrified” in the photographs. Plaintiffs argue that any “argument, 10 testimony, or evidence wherein a witness or counsel speculates as to some other 11 characterization of the photographs must be excluded.” (Id. at 3). 12 While the Court generally agrees that speculative testimony and unwarranted 13 inferences should not be allowed at trial, the Court declines to issue an order at this time. 14 Plaintiffs’ request is best left to objecting to particular questions that Defendants ask 15 witnesses at trial. With Plaintiffs’ specific examples, they seek to limit evidence to what 16 they contend the results of the investigation actually showed. But testimony on those 17 topics is relevant to how McCann conducted the investigation and her decision to 18 interview L.G. and G.G. It might also be relevant to whether McCann acted in a 19 malicious, oppressive, or reckless manner to support Plaintiffs’ punitive damages claim. 20 Thus, the Court DENIES Plaintiffs’ motion. 21 22 4. Motion No. 4 – Evidence from Alfredo Gil Plaintiffs seek to exclude evidence or testimony from Alfredo Gil, the biological 23 father of L.G. and G.G., regarding his concerns about the incident. Plaintiffs specifically 24 point to Gil’s deposition testimony in which he said he was concerned that Robert Dees 25 could be a pedophile or child molester, and that he later learned from McCann that Sara 26 Dees was “involved” and “agreed with Robert” about his actions. Mr. Gil testified that 27 he told the judge at a family court hearing that “the father had taken nude photos of his 28 daughter. And to me, that just wasn’t appropriate, and I didn’t feel secure or safe with 10 3:14-cv-0189-BEN-DHB 1 my kids being in that house with their stepfather.” (Pls.’ Mot. at 2 (citing Gil deposition 2 testimony)). 3 Defendants have designated Mr. Gil as a witness to testify about “damages.” 4 (Pretrial Order at 7, ECF No. 90). In Defendants’ response to Plaintiffs’ motion, they do 5 not specify what sort of “damages” testimony Mr. Gil might provide beyond suggesting 6 that he might testify to rebut Plaintiffs’ request for punitive damages. For instance, if Mr. 7 Gil spoke to McCann, those statements might be relevant to whether McCann acted 8 maliciously, oppressively, or recklessly. Therefore, while some of Mr. Gil’s testimony 9 might be more prejudicial than probative under Federal Rule of Evidence 403, the Court 10 will reserve ruling on its admissibility. The admissibility of his testimony will depend on 11 the particular question asked and the purpose for which it is offered. The Court DENIES 12 Plaintiffs’ motion. 13 5. 14 Motion No. 5 – Other Photographs or Video of Ka. Dees Plaintiffs move to exclude evidence or testimony that Robert Dees took nude 15 photographs and videos of his current wife, Sara Dees, and his ex-wife, Kelly Hunter. 16 The motion is DENIED. Such evidence may be relevant to explain why McCann 17 pursued interviews of L.G. and G.G. and to Plaintiffs’ claim for punitive damages. For 18 instance, if McCann’s decision to interview the children was partly motivated by 19 knowledge that Mr. Dees had taken nude photographs of his wives, then such evidence is 20 relevant to explain her actions. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 11 3:14-cv-0189-BEN-DHB B. Defendants’ Motions in Limine 1 2 1. Motion No. 1 – Plaintiffs’ Expert Rebecca Nelson 3 Defendants move to exclude or limit the testimony offered by Plaintiffs’ social 4 work expert, Rebecca Nelson. Defendants identify several opinions that they seek to 5 exclude, which the Court addresses in turn. a. Opinion that Mr. Dees’s conduct in taking the photographs was 6 7 not unlawful. 8 9 Plaintiffs agree that testimony from social workers or experts about whether Mr. Dees’s conduct was lawful or unlawful is not relevant and that such testimony should be 10 excluded. Therefore, Nelson’s opinion about the lawfulness of Mr. Dees’s actions will be 11 excluded. b. Opinion that McCann coerced Sara Dees’s consent to the home 12 13 interviews. 14 The parties agree that whether consent was coerced is a factual issue to be decided 15 by the jury. Thus, Nelson’s opinion about whether McCann coerced Dees’s consent to 16 the interviews will be excluded. c. Opinion that McCann coerced Sara Dees’s consent to sign the 17 18 safety plan. 19 20 Plaintiffs agree that any testimony regarding signing the safety plan is not relevant to the issues to be tried in this case. Nelson’s opinion on this issue will be excluded. d. Opinions related to McCann’s removal of the Gil children to their 21 father’s custody. 22 Nelson offers opinions related to McCann changing Sara Dees’s custodial rights, 23 24 failing to inform Mrs. Dees of her custodial rights, and removing the children to their 25 father’s custody by using an oral safety plan. Plaintiffs agree that testimony regarding 26 the removal is not relevant to the issues to be tried. Therefore, Nelson’s opinions on the 27 removal will be excluded. 28 /// 12 3:14-cv-0189-BEN-DHB 1 e. Opinion related to school interviews of the Gil children. 2 Defendants seek to exclude Nelson’s opinion that McCann had no basis to 3 interview L.G. and G.G. at school, arguing that her opinion is irrelevant and expresses a 4 legal opinion without foundation. The Court disagrees. 5 Nelson’s specific opinion states: 6 It is my opinion the social worker had no reason, basis, new referral and no suspicion that a child was in Imminent Danger of Serious Bodily Injury to justify her to re-interview the Gil children on February 26, 2013, without their mother’s consent or court order or mother’s presence. . . . It is my opinion such conduct constituted harassment and was unethical social work behavior. 7 8 9 10 11 12 13 14 15 16 17 ... It is my opinion the social worker did not have the right to re-interview the Gil children, even if there was an open investigation, when the social worker is told by the parent/caregiver not to interview the child, when there was no new referral, and there is no reasonable suspicion of imminent danger of serious bodily injury to that child. (Pls.’ Mot., Ex. A at 7). This opinion is relevant to Plaintiffs’ Monell claim related to the school interviews. 18 To prove the Monell claim, Plaintiffs must prove that McCann deprived them of their 19 constitutional rights. In other words, Plaintiffs will have to prove the underlying Fourth 20 Amendment violation. One of the elements of a Fourth Amendment claim is that the 21 seizure was unreasonable. See Ninth Circuit Model Jury Instruction 9.20. Nelson’s 22 opinion that McCann had no basis for the school interviews is relevant and helpful for the 23 jury to determine whether McCann acted reasonably. 24 Defendants also argue that Nelson offers a legal opinion and that she lacks a 25 foundation to offer this opinion because she is not lawyer. Contrary to Defendants’ 26 assertion, McCann’s opinion is based on her experience and qualifications as a social 27 worker. Defendants have not contested that Nelson can qualify as an expert. If Nelson 28 qualifies as an expert by knowledge, skill, experience, training, or education, she may 13 3:14-cv-0189-BEN-DHB 1 testify in the form of an opinion if her testimony meets the requirements of Federal Rule 2 of Evidence 702. Defendants do not dispute that her testimony satisfies those conditions. 3 Thus, Plaintiffs can introduce this opinion. On this basis, Defendants’ motion is denied. 4 f. Opinions related to documents sent to Family Court. Defendants seek to exclude Nelson’s opinions that McCann and her supervisors 5 6 failed in their duties and obligations to provide truthful, accurate, and complete 7 information to the Family Court and that the protocol used by HHSA to send information 8 to Family Court is not supported by standard practices and procedures for social workers 9 and child abuse investigations. They contend that the Court already “found any letter sent to Family Court 10 11 regarding L and G did not cause any violation of Plaintiffs’ rights.” (Pls.’ Mot. at 7 12 (emphasis added)). Therefore, Nelson’s opinions are not relevant to the remaining issues 13 at trial. But the Court’s holding was not so broad. The Court’s ruling that Plaintiffs did 14 not meet their burden to show a Fourteenth Amendment violation was limited to the 15 March 7, 2013 Non-Custodial Parent Letter submitted to Family Court. In addition to the 16 March 7 letter, Nelson’s opinion also mentions false letters sent on February 8 and 17 February 14, 2013. The remaining issues to be tried are whether McCann coerced Sara 18 Dees’s consent to the in-home interviews of L.G. and G.G. on February 7, 2013, and 19 whether McCann’s second interview of the children at school on February 26, 2013 20 pursuant to the school’s interview policy constitutes a Monell violation. Plaintiffs seek 21 punitive damages. The Court will reserve ruling on the admissibility of Nelson’s opinions about the 22 23 letters. Nelson’s opinion about HHSA protocols is tied to her opinions about the letters; 24 therefore, the Court will also reserve on the admissibility of this opinion. In sum, Defendants’ motion to exclude Ms. Nelson’s expert opinions is 25 26 GRANTED in part and DENIED in part. 27 /// 28 /// 14 3:14-cv-0189-BEN-DHB 1 2. 2 Motion No. 2 – Lay Evidence of Emotional Distress Defendants ask the Court to exclude lay opinion testimony and any evidence 3 “suggesting any changes in [Plaintiffs’] behavior or functioning were caused by 4 Plaintiffs’ involvement in a child abuse investigation.” (Defs.’ Mot. at 2). They contend 5 that any evidence that Plaintiffs’ pre-existing medical and mental health conditions were 6 made worse, or that changes in Plaintiffs’ behavior were caused by McCann’s actions or 7 the children’s involvement in a child abuse investigation, requires expert testimony. 8 Plaintiffs counter that they do not intend to claim that any pre-existing medical 9 and/or mental health conditions were exacerbated by Defendants’ alleged misconduct. 10 However, they do intend to call lay witnesses who are direct witnesses to the emotional 11 and mental distress caused by Defendants. Therefore, Defendants’ motion is DENIED. 12 Defendants can vigorously cross-examine Plaintiffs’ witnesses and object to particular 13 questions at trial. 14 Defendants also request exclusion of any evidence concerning damages caused by 15 being involved in the investigation as a whole. Rather, they argue that Plaintiffs’ 16 damages evidence should be limited to the damages they allegedly suffered as a result of 17 the interviews themselves. The Court declines to rule on this issue. Defendants have not 18 identified what type of evidence might be properly excluded under this request, and the 19 Court will not speculate. Defendants may address their concern through objecting to 20 questions at trial. Defendants’ motion is DENIED. 21 3. 22 Motion No. 3 – Reference to Other Child Welfare Investigations Involving McCann 23 Defendants move to exclude any reference to another lawsuit involving a child 24 welfare investigation naming McCann as a defendant. Plaintiffs agree that such evidence 25 is irrelevant, but reserve the right to present evidence on this subject if Defendants open 26 the door to its relevance. Ruling on this motion is therefore premature. The motion is 27 DENIED. 28 /// 15 3:14-cv-0189-BEN-DHB 1 2 3 4. Motion No. 4 – Family Court Proceedings and the Events of the Investigation Between February 8 and February 25, 2013 Defendants ask the Court to exclude evidence of Family Court proceedings and the 4 parts of the investigation from February 8 to February 25, 2013 as irrelevant, unfairly 5 prejudicial, and a waste of time under Federal Rules of Evidence 401 and 403. 6 Defendants identify specific evidence they want excluded, but also request “all evidence, 7 testimony, and arguments regarding events that took place between the home interviews 8 [on February 7, 2013] and the school interview [on February 26, 2013] be excluded.” 9 (Defs.’ Mot. at 6). 10 Defendants’ motion is essentially a request to sanitize the case. They ignore that 11 the “basic standard of relevance . . . is a liberal one.” Daubert v. Merrell Dow Pharms., 12 Inc., 509 U.S. 579, 587 (1993). Under Federal Rule of Evidence 401, evidence is 13 relevant if it has “any tendency to make a fact more or less probable.” Fed. R. Evid. 401 14 (emphasis added). What occurred between the home interviews and the school 15 interviews is relevant to Plaintiffs’ Monell claim. To prove that claim, Plaintiffs have to 16 prove that McCann violated Plaintiffs’ Fourth and Fourteenth Amendment constitutional 17 rights when she interviewed the children at school. The events that occurred before the 18 school interview are relevant to determining whether her actions in pursuing and 19 conducting the school interview were reasonable. See U.S. Const., amend IV (protecting 20 people against unreasonable seizures). The Court DENIES the motion. 21 CONCLUSION 22 In summary, the Court rules as follows: 23 1. Deliberate indifference is not a required element of Plaintiffs’ Monell claim; 24 2. Defendant McCann is not entitled to absolute immunity under California 25 26 Government Code section 821.6; 3. The Court reserves ruling on which standard of culpability applies to the 27 “shocks the conscience” element of Plaintiffs’ Fourteenth Amendment claim 28 until it hears all the evidence presented at trial; 16 3:14-cv-0189-BEN-DHB 1 2 3 4 5 6 7 4. The Court denies Plaintiffs’ Motions in Limine Nos. 1, 3, 4, and 5 (ECF Nos. 96, 98, 99, & 100); 5. The Court grants in part and denies in part Plaintiffs’ Motion in Limine No. 2 (ECF No. 97); 6. The Court denies Defendants’ Motions in Limine Nos. 2, 3, and 4 (ECF Nos. 102, 103, & 104); 7. The Court grants in part and denies in part Defendants’ Motion in Limine No. 1 8 (ECF No. 101). 9 IT IS SO ORDERED. 10 Dated: January 17, 2017 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 3:14-cv-0189-BEN-DHB

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