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)

Case 3:15-cv-02287-BAS-NLS Document 240 Filed 01/11/22 PageID.9813 Page 1 of 5

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CHARLES MATTHEW ERHART,

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Case No. 15-cv-02287-BAS-NLS
consolidated with
15-cv-02353-BAS-NLS

Plaintiff,

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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.

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BOFI HOLDING, INC.,

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Defendant.

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And Consolidated Case

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Presently before the Court is BofI Holding, Inc.’s Motion in Limine No. 3 to

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Exclude Evidence of Predicates of Alleged Wrongdoing that the Court Has Already

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Rejected. (ECF No. 218.) Erhart opposes. (ECF No. 223.) The Court heard

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argument on the motion. (ECF No. 230.) For the following reasons, the Court

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GRANTS IN PART BofI’s Motion in Limine No. 3.

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I.

BACKGROUND

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The Court and the parties are familiar with the story behind these consolidated

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cases awaiting trial. Erhart claims the Bank violated state and federal anti-retaliation

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statutes by retaliating against him for reporting conduct he believed to be wrongful
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to his supervisor and the government. Erhart’s allegations cover a broad scope of

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conduct.

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At summary judgment, the Court addressed whether some of Erhart’s

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allegations are not actionable. (Summ. J. Order, ECF No. 192.) For four categories

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of allegations, the Court concluded Erhart could not recover under either his federal

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or state whistleblower retaliation claims. These categories are Erhart’s allegations

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regarding altered financial statements, improper strategic plan approval,

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miscalculated allowance for loan and lease losses, and altered Bank Secrecy Act QC

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reports. (Id. 10–11; 22–48; 45 n.13; 49 & n.14; 54–57; 62–63, n.23.)

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BofI now moves to exclude evidence related to these four categories. (ECF

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No. 218.) The Bank also seeks to exclude evidence concerning a fifth category—

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high deposit concentration risk. For that category, the Court concluded Erhart could

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not recover under his broader, state law whistleblower retaliation claim. (Summ. J.

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Order 59.) The Court did not address this fifth category in the context of Erhart’s

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federal claims because BofI’s motion failed to challenge whether this category could

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support those claims. (Id. 49 n.15.) In addition, BofI seeks to exclude the exhibits

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Erhart designated concerning these five categories of allegations: “Exhibits 91-98,

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206, 229, 230, 268-272, and 295.” (ECF No. 218.)

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II.

LEGAL STANDARD

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A party may use a motion in limine to exclude inadmissible or excludable

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evidence before it is introduced at trial. Luce v. United States, 469 U.S. 38, 40 n.2

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(1984).

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relevant if it has any tendency to make a fact more or less probable than it would be

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without the evidence, and the fact is of consequence in determining the action. Id.

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401(a)–(b).

Only relevant evidence is admissible. Fed. R. Evid. 402. Evidence is

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Relevant evidence may be excluded if its probative value is substantially

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outweighed by, among other things, the danger of unfair prejudice or wasting

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time. Fed. R. Evid. 403. The Rule 403 balancing inquiry is made on a case-by-case
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basis, requiring an examination of the surrounding facts, circumstances, and

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issues. United States v. Lloyd, 807 F.3d 1128, 1152 (9th Cir. 2015).

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III.

ANALYSIS

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BofI argues the evidence related to Erhart’s rejected categories is wholly

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irrelevant to his claims. Moreover, the Bank contends this is a classic case for Rule

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403 exclusion: “even if Erhart could establish some minimal probative value of

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evidence relating to the rejected categories, that probative value would be

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substantially outweighed by the likelihood that it would result in unfair prejudice,

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confuse the issues, mislead the jury, cause undue delay, and waste time and judicial

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resources.” (ECF No. 218.) Erhart briefly responds that he plans to use this evidence

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not for the rejected predicates, “but rather to support other predicates of wrongdoing

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by BofI.” (ECF No. 223.) And if the Court is concerned “about how the evidence

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will be used, that can readily be addressed at trial, including [by] asking Plaintiff to

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proffer the reasons for using the evidence.” (Id.)

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Tentatively excluding any evidence related to the four categories the Court

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rejected for Erhart’s state and federal anti-retaliation claims is appropriate. For the

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reasons explained in the Court’s Summary Judgment Order, this evidence cannot

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support a verdict in Erhart’s favor on those claims. (See Summ. J. Order 10–11; 22–

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48; 45 n.13; 49 & n.14; 54–57; 62–63, n.23.) Erhart fails to demonstrate why this

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evidence is relevant to his other claims or defenses. It follows that the evidence is

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not “of consequence in determining the action.” See Fed. R. Evid. 401(b); see also

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Multimedia Pat. Tr. v. Apple Inc., No. 10-CV-2618-H (KSC), 2012 WL 12868264,

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at *4 (S.D. Cal. Nov. 20, 2012) (granting motion in limine to preclude parties from

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“presenting evidence, argument, or opinions concerning claims, patents, or issues

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dismissed pursuant to summary judgment rulings by the Court”).

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Moreover, even if this evidence has some minimal relevance to supporting the

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remainder of Erhart’s claims, the Court finds the evidence should be excluded under

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Rule 403. The evidence’s probative value is substantially outweighed by the danger
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of confusing the issues, misleading the jury, and wasting time and judicial resources.

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Therefore, the Court excludes without prejudice any evidence concerning altered

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financial statements, improper strategic plan approval, miscalculated allowance for

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loan and lease losses, and altered Bank Secrecy Act QC reports. (See Summ. J. Order

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10 (listing categories).) See United States v. Bensimon, 172 F.3d 1121, 1127 (9th

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Cir. 1999) (noting testimony at trial “may bring facts to the district court’s attention

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that it did not anticipate at the time of its initial [motion in limine] ruling”). This

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ruling includes any exhibits underlying these allegations.

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The Court turns to the final category of evidence targeted by the Bank’s

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motion—Erhart’s allegations concerning high deposit concentration risk. Motions in

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limine may not be used as a disguise for a motion for summary judgment. Elliott v.

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Versa CIC, L.P., 349 F. Supp. 3d 1000, 1002 (S.D. Cal. 2018) (collecting cases);

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accord Petty v. Metro Gov. of Nashville & Davidson Cnty., 687 F3d 710, 720–21

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(6th Cir. 2012); Meyer Intell. Props. Ltd. v. Bodum, Inc., 690 F.3d 1354, 1377 (Fed.

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Cir. 2012).

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allegations on summary judgment for all his claims. (Summ. J. Order 49 n.15.)

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Consequently, BofI’s motion in limine is a request for summary judgment in

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disguise, and the Court denies the motion to exclude this evidence.

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The Court did not dispose of Erhart’s deposit concentration risk

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IV.

CONCLUSION

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For the foregoing reasons, the Court GRANTS IN PART BofI’s Motion in

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Limine No. 3 to Exclude Evidence of Predicates of Alleged Wrongdoing that the

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Court Has Already Rejected. (ECF No. 218.) The Court grants the request to exclude

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any evidence, including the designated exhibits, regarding altered financial

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statements, improper strategic plan approval, miscalculated allowance for loan and

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lease losses, and altered Bank Secrecy Act QC reports. The Court denies the request

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to exclude any evidence, including the designated exhibits, regarding high deposit

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concentration risk.

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IT IS SO ORDERED.

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DATED: January 11, 2022

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