Erhart v. Bofi Holding Inc.

Filing 240

Order Granting in Part BOFI's Motion in Limine No. 3 to Exclude Evidence of Predicates of Alleged Wrongdoing that the Court has Already Rejected (ECF No. 218 ). Signed by Judge Cynthia Bashant on 1/11/22. (jmo)

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Case 3:15-cv-02287-BAS-NLS Document 240 Filed 01/11/22 PageID.9813 Page 1 of 5 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 CHARLES MATTHEW ERHART, 12 Case No. 15-cv-02287-BAS-NLS consolidated with 15-cv-02353-BAS-NLS Plaintiff, 13 14 ORDER GRANTING IN PART BOFI’S MOTION IN LIMINE NO. 3 TO EXCLUDE EVIDENCE OF PREDICATES OF ALLEGED WRONGDOING THAT THE COURT HAS ALREADY REJECTED (ECF No. 218) v. 15 BOFI HOLDING, INC., 16 Defendant. 17 And Consolidated Case 18 19 20 Presently before the Court is BofI Holding, Inc.’s Motion in Limine No. 3 to 21 Exclude Evidence of Predicates of Alleged Wrongdoing that the Court Has Already 22 Rejected. (ECF No. 218.) Erhart opposes. (ECF No. 223.) The Court heard 23 argument on the motion. (ECF No. 230.) For the following reasons, the Court 24 GRANTS IN PART BofI’s Motion in Limine No. 3. 25 I. BACKGROUND 26 The Court and the parties are familiar with the story behind these consolidated 27 cases awaiting trial. Erhart claims the Bank violated state and federal anti-retaliation 28 statutes by retaliating against him for reporting conduct he believed to be wrongful –1– 15cv2287 Case 3:15-cv-02287-BAS-NLS Document 240 Filed 01/11/22 PageID.9814 Page 2 of 5 1 to his supervisor and the government. Erhart’s allegations cover a broad scope of 2 conduct. 3 At summary judgment, the Court addressed whether some of Erhart’s 4 allegations are not actionable. (Summ. J. Order, ECF No. 192.) For four categories 5 of allegations, the Court concluded Erhart could not recover under either his federal 6 or state whistleblower retaliation claims. These categories are Erhart’s allegations 7 regarding altered financial statements, improper strategic plan approval, 8 miscalculated allowance for loan and lease losses, and altered Bank Secrecy Act QC 9 reports. (Id. 10–11; 22–48; 45 n.13; 49 & n.14; 54–57; 62–63, n.23.) 10 BofI now moves to exclude evidence related to these four categories. (ECF 11 No. 218.) The Bank also seeks to exclude evidence concerning a fifth category— 12 high deposit concentration risk. For that category, the Court concluded Erhart could 13 not recover under his broader, state law whistleblower retaliation claim. (Summ. J. 14 Order 59.) The Court did not address this fifth category in the context of Erhart’s 15 federal claims because BofI’s motion failed to challenge whether this category could 16 support those claims. (Id. 49 n.15.) In addition, BofI seeks to exclude the exhibits 17 Erhart designated concerning these five categories of allegations: “Exhibits 91-98, 18 206, 229, 230, 268-272, and 295.” (ECF No. 218.) 19 II. LEGAL STANDARD 20 A party may use a motion in limine to exclude inadmissible or excludable 21 evidence before it is introduced at trial. Luce v. United States, 469 U.S. 38, 40 n.2 22 (1984). 23 relevant if it has any tendency to make a fact more or less probable than it would be 24 without the evidence, and the fact is of consequence in determining the action. Id. 25 401(a)–(b). Only relevant evidence is admissible. Fed. R. Evid. 402. Evidence is 26 Relevant evidence may be excluded if its probative value is substantially 27 outweighed by, among other things, the danger of unfair prejudice or wasting 28 time. Fed. R. Evid. 403. The Rule 403 balancing inquiry is made on a case-by-case –2– 15cv2287 Case 3:15-cv-02287-BAS-NLS Document 240 Filed 01/11/22 PageID.9815 Page 3 of 5 1 basis, requiring an examination of the surrounding facts, circumstances, and 2 issues. United States v. Lloyd, 807 F.3d 1128, 1152 (9th Cir. 2015). 3 III. ANALYSIS 4 BofI argues the evidence related to Erhart’s rejected categories is wholly 5 irrelevant to his claims. Moreover, the Bank contends this is a classic case for Rule 6 403 exclusion: “even if Erhart could establish some minimal probative value of 7 evidence relating to the rejected categories, that probative value would be 8 substantially outweighed by the likelihood that it would result in unfair prejudice, 9 confuse the issues, mislead the jury, cause undue delay, and waste time and judicial 10 resources.” (ECF No. 218.) Erhart briefly responds that he plans to use this evidence 11 not for the rejected predicates, “but rather to support other predicates of wrongdoing 12 by BofI.” (ECF No. 223.) And if the Court is concerned “about how the evidence 13 will be used, that can readily be addressed at trial, including [by] asking Plaintiff to 14 proffer the reasons for using the evidence.” (Id.) 15 Tentatively excluding any evidence related to the four categories the Court 16 rejected for Erhart’s state and federal anti-retaliation claims is appropriate. For the 17 reasons explained in the Court’s Summary Judgment Order, this evidence cannot 18 support a verdict in Erhart’s favor on those claims. (See Summ. J. Order 10–11; 22– 19 48; 45 n.13; 49 & n.14; 54–57; 62–63, n.23.) Erhart fails to demonstrate why this 20 evidence is relevant to his other claims or defenses. It follows that the evidence is 21 not “of consequence in determining the action.” See Fed. R. Evid. 401(b); see also 22 Multimedia Pat. Tr. v. Apple Inc., No. 10-CV-2618-H (KSC), 2012 WL 12868264, 23 at *4 (S.D. Cal. Nov. 20, 2012) (granting motion in limine to preclude parties from 24 “presenting evidence, argument, or opinions concerning claims, patents, or issues 25 dismissed pursuant to summary judgment rulings by the Court”). 26 Moreover, even if this evidence has some minimal relevance to supporting the 27 remainder of Erhart’s claims, the Court finds the evidence should be excluded under 28 Rule 403. The evidence’s probative value is substantially outweighed by the danger –3– 15cv2287 Case 3:15-cv-02287-BAS-NLS Document 240 Filed 01/11/22 PageID.9816 Page 4 of 5 1 of confusing the issues, misleading the jury, and wasting time and judicial resources. 2 Therefore, the Court excludes without prejudice any evidence concerning altered 3 financial statements, improper strategic plan approval, miscalculated allowance for 4 loan and lease losses, and altered Bank Secrecy Act QC reports. (See Summ. J. Order 5 10 (listing categories).) See United States v. Bensimon, 172 F.3d 1121, 1127 (9th 6 Cir. 1999) (noting testimony at trial “may bring facts to the district court’s attention 7 that it did not anticipate at the time of its initial [motion in limine] ruling”). This 8 ruling includes any exhibits underlying these allegations. 9 The Court turns to the final category of evidence targeted by the Bank’s 10 motion—Erhart’s allegations concerning high deposit concentration risk. Motions in 11 limine may not be used as a disguise for a motion for summary judgment. Elliott v. 12 Versa CIC, L.P., 349 F. Supp. 3d 1000, 1002 (S.D. Cal. 2018) (collecting cases); 13 accord Petty v. Metro Gov. of Nashville & Davidson Cnty., 687 F3d 710, 720–21 14 (6th Cir. 2012); Meyer Intell. Props. Ltd. v. Bodum, Inc., 690 F.3d 1354, 1377 (Fed. 15 Cir. 2012). 16 allegations on summary judgment for all his claims. (Summ. J. Order 49 n.15.) 17 Consequently, BofI’s motion in limine is a request for summary judgment in 18 disguise, and the Court denies the motion to exclude this evidence. 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 / The Court did not dispose of Erhart’s deposit concentration risk –4– 15cv2287 Case 3:15-cv-02287-BAS-NLS Document 240 Filed 01/11/22 PageID.9817 Page 5 of 5 1 IV. CONCLUSION 2 For the foregoing reasons, the Court GRANTS IN PART BofI’s Motion in 3 Limine No. 3 to Exclude Evidence of Predicates of Alleged Wrongdoing that the 4 Court Has Already Rejected. (ECF No. 218.) The Court grants the request to exclude 5 any evidence, including the designated exhibits, regarding altered financial 6 statements, improper strategic plan approval, miscalculated allowance for loan and 7 lease losses, and altered Bank Secrecy Act QC reports. The Court denies the request 8 to exclude any evidence, including the designated exhibits, regarding high deposit 9 concentration risk. 10 IT IS SO ORDERED. 11 12 DATED: January 11, 2022 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 –5– 15cv2287

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