Hicks et al v. Makaha Valley Plantation Homeowners Assn. et al

Filing 137

TRIAL PROCEDURE ORDER DEFENDANTS' MOTIONS IN LIMINE NOS. 1, 2, 4, 5, 6, 7, AND 9 re 105 , 107 , 108 , 109 , 110 , 111 , 117 - Signed by JUDGE HELEN GILLMOR on 7/7/2016. "Defendants' Motions in Limine Nos. 1, 2, 4, 5, 6, and 9 are GRANTED. Defendants' Motion in Limine No. 7 is GRANTED as to Attorneys Michael Kozak, John Zalewski, and Andrea Heckler." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Charles Hicks, Deneen Hicks and Stacey Hicks served by first class mail at the address of record on July 7, 2016.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
Charles Hicks; Deneen Hicks;
and Stacey Hicks,

)
)
)
Plaintiffs,
)
)
)
vs.
)
Association of Apartment Owners )
of Makaha Valley Plantation;
)
)
and Hawaii First, Inc.,
)
)
)
Defendants.
_______________________________ )

Civil No. 14-00254HG-KJM

TRIAL PROCEDURE ORDER
DEFENDANTS’ MOTIONS IN LIMINE NOS. 1, 2, 4, 5, 6, 7, and 9

Defendants Association of Apartment Owners of Makaha Valley
Plantation and Hawaii First, Inc. (collectively, “Defendants”)
have filed 11 motions in limine.
On July 1, 2016, the Court held a Final Pre-Trial
Conference, during which the Court rendered oral rulings on
motions in limine nos.

1, 2, 4, 5, 6, 7, and 9.

(ECF No. 135).

This written order sets forth the Court’s rulings issued at the
Final Pre-Trial Conference on July 1, 2016.

Motion in Limine No. 1 (ECF No. 105)
Defendants seek to exclude any evidence that they may have
liability insurance coverage.
1

Federal Rule of Evidence 411 requires the exclusion of
evidence that a defendant was insured against liability when that
evidence is offered for the purposes of proving the defendant’s
wrongful conduct.

Fed. R. Evid. 411.

Evidence of liability insurance is also excluded pursuant to
Federal Rules of Evidence 401 and 403.
Pursuant to Federal Rule of Evidence 401(a), evidence is
relevant if it has a tendency to make a fact more probable or
less probable than it would be without the evidence.
Plaintiffs have not set forth any reason to introduce proof
of liability insurance.

(See Plas. Memo. in Opp. to Defs. Motion

in Limine No. 1, ECF No. 125-1).
Relevant evidence is inadmissible when its probative value
is substantially outweighed by a danger of unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.

Fed. R.

Evid. 403.
Evidence of a defendant’s financial status or ability to pay
is generally not relevant to the issue of compensatory damages
and is unfairly prejudicial because the purpose of compensatory
damages is to make the plaintiff whole and is not dependent on
the wealth of the defendant.

Geddes v. United Fin. Group, 559

F.2d 557, 560 (9th Cir. 1977).
Evidence of liability insurance is not relevant in this

2

case, it confuses the issues, and it misleads the jury.

Evidence

of liability insurance tends to alter the jurors’ assessment of
damages, which unfairly prejudices the parties.

See Posttape

Assocs. v. Eastman Kodak Co., 537 F.2d 751, 758 (3d Cir. 1976);
Garnac Grain Co. v. Blackley, 932 F.2d 1563, 1570 (8th Cir.
1991).
Defendants’ Motion in Limine No. 1 is GRANTED.
Plaintiffs are precluded from introducing any testimony,
evidence, argument, or other reference that Defendants may be
insured against liability.

Motion in Limine No. 2 (ECF No. 107)
Defendants seek to exclude any evidence of settlement
negotiations between the Parties.
Federal Rule of Evidence 408 generally excludes evidence of
matters pertaining to settlement negotiations.

Fed. R. Evid.

408(a); Nguyen v. Dep't of Navy, 412 Fed. Appx. 926, 929 (9th
Cir. 2011).
Federal Rule of Evidence 408 is designed to ensure that
parties may make offers during settlement negotiations without
fear that those same offers will be used to establish liability
should settlement efforts fail.

Rhoades v. Avon Prods., Inc.,

504 F.3d 1151, 1161 (9th Cir. 2007).

3

Plaintiffs have not established that evidence concerning the
Parties’ settlement discussions is admissible pursuant to the
Federal Rules of Evidence.

(See Plas. Memo. in Opp. to Defs.

Motion in Limine No. 2, ECF No. 126-1).

Information concerning

the Parties’ settlement negotiations is irrelevant to Plaintiffs’
claims of discrimination.
Defendants’ Motion in Limine No. 2 is GRANTED.
Plaintiffs are precluded from introducing any testimony,
evidence, argument, or other reference to settlement
negotiations.

Motion in Limine No. 4 (ECF No. 108)
Defendants seek to exclude evidence regarding the stabbing
death of a black veteran that occurred in 2011 at the condominium
community consisting of 572 units where Plaintiffs resided.
Plaintiffs claim that the evidence is relevant because it
demonstrates that the Defendants were aware of hostility and
discrimination against African-Americans in the housing complex.
(Plas. Memo. In Opp. to Defs Motion in Limine No. 4, ECF No. 1271).
Relevant evidence is inadmissible when its probative value
is substantially outweighed by a danger of unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting

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time, or needlessly presenting cumulative evidence.

Fed. R.

Evid. 403.
Evidence is unfairly prejudicial when its probative value is
outweighed because of its ability to appeal to the jury’s
sympathies, arouse jurors’ sense of horror, provoke a jury’s
instinct to punish, and trigger other intense human reactions.
Weinstein’s Fed. Evid. § 403.04[1][c]; Beachy v. Boise Cascade
Corp., 191 F.3d 1010, 1014 (9th Cir. 1999); United States v.
Brady, 579 F.2d 1121, 1129 (9th Cir. 1978).
Plaintiffs have not established that the evidence of the
stabbing death is relevant to establish their causes of action.
The evidence appears to be of limited probative value that is
outweighed by the emotional reaction that the evidence of a
stabbing death would provoke.
In addition, such evidence confuses the issues and misleads
the jury.

See Manuel v. City of Chicago, 335 F.3d 592, 597 (7th

Cir. 2003) (evidence of other acts of discrimination based on
assertions that the witness believed the plaintiff’s supervisor
was a racist was excluded because its slight probative value was
outweighed by the potential for juror confusion); Javier v. City
of Milwaukee, 670 F.3d 823, 832, n. 8 (7th Cir. 2012).
Defendants’ Motion in Limine No. 4 is GRANTED.

5

Plaintiffs are precluded from introducing any testimony,
evidence, argument, or other references to the stabbing death of
a black veteran that occurred in 2011.
If Plaintiffs wish to raise the issue again, they must
provide the Court with notice of evidence that would establish
the stabbing incident’s relevance to their discrimination claims
against Defendants.

Motion in Limine No. 5 (ECF No. 109)
Defendants seek to prevent Plaintiffs from referencing
other housing lawsuits or disputes.

Plaintiffs have not filed an

Opposition to Defendant’s Motion in Limine No. 5.
Evidence that is irrelevant or has a probative value that is
substantially outweighed by the danger of unfair prejudice may be
precluded from admission.

Fed. R. Evid. 402; 403.

Information relating to other housing lawsuits or legal
disputes is not relevant in this case and would be highly
prejudicial.

See, e.g., Mathis v. Phillips Chevrolet, Inc., 269

F.3d 771, 776 (7th Cir. 2001) (upholding exclusion at trial
of evidence of plaintiffs' other pending lawsuits); Reddy v.
Nuance Commc'ns, Inc., No. 5:11-CV-05632-PSG, 2015 WL 4648008, at
*1-2 (N.D. Cal. Aug. 5, 2015) (granting motion to exclude
disclosure of prior lawsuits).

McLeod v. Parsons Corp., 73 F.

App'x 846, 853-54 (6th Cir. 2003).
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Such evidence has no

likelihood of proving any material facts relevant to Plaintiffs’
claims.

Khan v. H & R Block E. Enter., Inc., No. 11-20217-CIV,

2011 WL 4715201, at *1 (S.D. Fla. Oct. 5, 2011).

Information

concerning other housing lawsuits or disputes would also mislead
the jury, confuse the issues, and cause undue delay.

Fed. R.

Evid. 403.
Defendants’ Motion in Limine No. 5 is GRANTED.
Plaintiffs are precluded from introducing any testimony,
evidence, argument, or other reference to other housing lawsuits
and legal disputes.

Motion in Limine No. 6 (ECF No. 110)
Defendants wish to preclude Plaintiffs from calling Hawaii
Civil Rights Commission (“HCRC”) Investigator Scott Brown
(“Investigator Brown”), and to exclude a government report
documenting an investigatory interview with Plaintiff Deneen
Hicks.
(a)

HCRC Investigator Scott Brown

Federal Rule of Evidence 602 provides that a lay witness may
testify only about matters on which he has first-hand knowledge.
Fed. R. Evid. 602.

The witness’s testimony must be based on

events perceived through one of the five senses.
generally cannot testify as to hearsay.

A lay witness

Fed. R. Evid. 802.

Hearsay is defined as “a statement made by an out-of-court
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declarant when it is offered at trial to prove the truth of the
matter asserted.” United States v. Torres, 794 F.3d 1053, 1059
(9th Cir. 2015), cert. denied, No. 15-6793, 2016 WL 2842486 (U.S.
May 16, 2016) (citing Fed. R. Evid. 801(c), 802).
Plaintiffs’ Witness List indicates that Investigator Brown
is due to testify “regarding the HCRC Investigation.”
Witness List, p. 4, ECF No. 115).

(Plas.

Plaintiffs assert that

Invesitgator Brown has first-hand knowledge about the HCRC
investigation process.

(Plas. Opp. to Defs. Motion in Limine No.

6, ECF No. 128).
Plaintiffs have not shown that Investigator Brown has firsthand knowledge of the events Plaintiffs have alleged in their
Amended Complaint.

Investigator Brown may not be called to

testify regarding what Plaintiffs reported to the HCRC as a means
to prove that the alleged events occurred.
constitute inadmissible hearsay.

Such testimony would

Torres, 794 F.3d at 1059.

To the extent that Plaintiffs wish to call Investigator
Brown to testify as to how the HCRC conducts its investigations,
that testimony is not relevant to their claims of discrimination.
The focus at trial will be on the merits of Plaintiffs’ state and
federal law claims, not how the HCRC conducts its investigations.
See U.S. E.E.O.C. v. Pinal Cnty., 714 F.Supp.2d 1073, 1079 (S.D.
Cal. 2010) (granting Equal Employment Opportunity Commission
motion to quash deposition subpoena on the grounds that the trier

8

of fact will evaluate the merits of the underlying discrimination
claim, not the agency’s determination letter).

(b) Plaintiffs’ Pre-Trial Statement Exhibit P001
Federal Rule of Evidence 803(8) permits certain forms of
government documents to be admitted as an exception to the
general rule against hearsay.

Fed. R. Evid. 803(8).

Permissible

documents include those that describe “a matter observed while
under a legal duty to report,” Fed. R. Evid. 803(8)(A)(ii), and
“factual findings from a legally authorized investigation,” Fed.
R. Evid. 803(8)(A)(iii), that do not arise out of untrustworthy
sources or circumstances. Fed. R. Evid. 803(8)(B).
Plaintiffs’ Exhibit P001, entitled, “Interview with Deneen
Hicks,” does not qualify pursuant to Rule 803(8) as an exception
to the general rule against hearsay.

The document is “a mere

collection of statements” from Plaintiff Deneen Hicks concerning
past incidents that form the basis of the Amended Complaint.
United Techs. Corp. v. Mazer, 556 F.3d 1260, 1278 (11th Cir.
2009).

The document constitutes inadmissible hearsay.

McMahon

v. Valenzuela, No. 214CV02085CASAGRX, 2015 WL 7573620, at *9
(C.D. Cal. Nov. 25, 2015) (denying admission of a government
report that contained preliminary findings and “extensive
summarization or recitation of various out-of-court statements”).
Defendants’ Motion in Limine No. 6 is GRANTED.

9

Plaintiffs are precluded from calling HCRC Investigator
Scott Brown as a Trial witness.

Plaintiffs are also precluded

from introducing Exhibit P001, entitled “Interview with Deneen
Hicks,” into evidence.

Motion in Limine No. 7 (ECF No. 111)
Defendants seek to prevent Plaintiffs from calling Attorneys
Michael Kozak, Esq., John D. Zalewski, Esq., Andrea Heckler,
Esq., and Arnold T. Phillips, Esq. to testify at Trial.

(a)

Michael Kozak and John D. Zalewski

Attorney Michael Kozak is a former counsel and Attorney John
D. Zalewski is present counsel for Defendants.

At the July 1,

2016 Final Pre-Trial Conference, Plaintiffs withdrew their
request to call Attorneys Kozak and Zalewski. The Court outlines
the reason the motion is granted.
Plaintiffs represented that Attorneys Kozak and Zalewski
would testify about Defendants’ submissions to the Hawaii Civil
Rights Commission and the Department of Housing and Urban
Development, which responded to Plaintiff’s allegations of
discrimination.

(Plas. Witness List at p. 2, ECF No. 115; Plas.

Memo. in Opp. to Defs. Motion in Limine No. 7, p. 4, ECF No. 1291).

10

The Hawaii Rules of Professional Conduct restrict an
attorney’s ability to function as both an advocate and a trial
witness in the same case.

See Haw. R. Prof. Conduct 3.7.

Courts do not allow a party to call opposing counsel as
witnesses unless (1) “[n]o other means exist to obtain the
information,” (2) “the information sought is relevant and
nonprivileged,” and (3) “the information is crucial to the
preparation of the case.”

Shelton v. American Motors Corp., 805

F.2d 1323, 1327 (8th Cir. 1986); Rhodes v. Sutter Gould Med.
Found., No. CIV. 2:12-13 WBS-DAD, 2014 WL 2091767, at *1 (E.D.
Cal. May 16, 2014) (applying Shelton to trial subpoenas).
Plaintiffs have not met the three prerequisites.
First, neither Attorney Kozak nor Attorney Zalewski are
percipient witnesses.

The responses of the Defendants to the

Hawaii Civil Rights Commission are not necessarily relevant. If
the answers were somehow relevant there are other means to obtain
admission to the answers without calling defense counsel.
Second, the information Plaintiffs seek is irrelevant to
their underlying claims.

Neither Attorney Kozak nor Attorney

Zalewski is alleged to have first-hand knowledge of the conduct
and events that form the basis of the charges in the Amended
Complaint.

Fed. R. Evid. 602.

Any additional information the

attorneys could provide about Defendants’ submissions will almost
certainly elicit a claim of attorney-client privilege.
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See

Rhodes, 2014 WL 2091767, at *2 (denying plaintiff’s request to
compel opposing counsel to testify after finding that the
attorney’s communications with clients about their response to a
court order would be privileged).
Third, Plaintiffs have not demonstrated that the answers
they seek from Attorneys Kozak and Zalewski are crucial to their
case.

The attorneys’ testimony would not add any material facts

to Plaintiffs’ case.

The testimony of Attorneys Kozak and

Zalewski would mislead the jury and cause undue delay.

Fed. R.

Evid. 403.

(b)

Andrea Heckler

Attorney Andrea Heckler served as Plaintiff Charles Hicks’
bankruptcy attorney in 2011.

(Ex. B of Defs. Motion in Limine

No. 7, ECF No. 111-4; Plas. Memo. in Opp. to Defs. Motion in
Limine No. 7, p. 4, ECF No. 129-1).

At the July 1, 2016 Final

Pre-Trial Conference, Plaintiffs withdrew their request to call
Attorney Heckler as a Trial witness.
Plaintiffs initially asserted that Attorney Heckler would
testify regarding the non-judicial foreclosure of Plaintiffs’
condominium and Plaintiff Charles Hicks’ attempts to mitigate
damages.

(Plas. Memo. in Opp. to Defs. Motion in Limine No. 7,

pp. 4-5, ECF No. 129-1).

Plaintiffs also indicated that Attorney

Heckler would testify about the legal advice she provided to

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Plaintiffs.

(Plas. Witness List at p. 2, ECF No. 115).

At the

July 1, 2016 Final Pre-Trial Conference, Plaintiffs withdrew
their request to call Attorney Heckler as a Trial witness.
Attorney Heckler may not testify at Trial.

Plaintiffs

concede that Attorney Heckler “does not appear to have any firsthand knowledge of facts relating to Plaintiffs’ claims in this
case. . ..”

(Plas. Memo. in Opp. to Defs. Motion in Limine No.

7, p. 4, ECF No. 129-1).

The Amended Complaint (ECF No. 40) does

not bring claims asserting wrongful foreclosure by Defendants.
There is no indication that a causal relationship exists between
Plaintiffs’ discriminatory claims and any foreclosure action.
Attorney Heckler’s testimony would be irrelevant to
Plaintiffs’ claims of discrimination and would cause jury
confusion.

Moreover, Attorney Heckler would not be permitted to

testify about her legal conclusions.

United States v. Johnson,

223 F.3d 665, 671 (7th Cir. 2000) (“Witnesses testify about fact,
not law.

When a legal proposition is relevant to the jury's

consideration, the proper procedure is for the judge to instruct
the jury on the proposition”).

(c)

Arnold T. Phillips

Attorney Arnold T. Phillips served as Plaintiffs’ counsel in
relation to a claim of water intrusion in their apartment.

13

(Ex.

B of Defs. Motion in Limine No. 7, ECF No. 111-5; Plas. Memo. in
Opp. to Defs. Motion in Limine No. 7, p. 5, ECF No. 129-1).
At the July 1, 2016 Final Pre-Trial Conference, Plaintiffs
indicated that Attorney Phillips may have evidence in the form of
e-mails and other documents that support Plaintiffs’ claims that
Defendants’ conduct concerning the water leaks into Plaintiffs’
apartment was discriminatory.

Plaintiffs requested an

opportunity to contact Attorney Phillips and represented that
they will inform the Court if Attorney Phillips has relevant
evidence that could be put before the Court.
Defendants’ Motion in Limine No. 7 is GRANTED as to
Attorneys Kozak, Zalewski, and Heckler.
Plaintiffs may not call Michael Kozak, Esq., John D.
Zalewski, Esq., or Andrea Heckler, Esq. as witnesses to testify
at Trial.
A ruling on Motion in Limine No. 7 with respect to Attorney
Arnold T. Phillips is postponed pending further review.

Defendants’ Motion in Limine No. 9 (ECF No. 117)
Defendants seek to bar Plaintiffs from referencing or
introducing into evidence information relating to punitive
damages, unless and until the Court has made a determination that
Plaintiffs have sufficient evidence to support an award of
punitive damages.

14

Punitive damages are a type of damages that are assessed for
the purpose of punishing a defendant for aggravated or outrageous
misconduct, and to deter others from similar conduct in the
future.

Smith v. Wade, 461 U.S. 30, 54 (1983); Udac v. Takata

Corp., 214 P.3d 1133, 1155 (Haw. Ct. App. 2009).

(a) Punitive Damages Pursuant to the Fair Housing Act
The Fair Housing Act, 42 U.S.C. § 3601 et seq., permits
recovery of punitive damages upon a showing by a preponderance of
the evidence that the defendant’s conduct involved reckless
indifference.

See The Fair Hous. Council of S.D., Joann Reed v.

Penasquitos Casablanca Owner's Ass'n, 381 F. App'x 674, 677 (9th
Cir. 2010); see also Dang v. Cross, 422 F.3d 800, 807-08 (9th
Cir. 2005) (recognizing that preponderance of the evidence
standard for obtaining punitive damages in civil rights cases).
Reckless indifference, as applied to Fair Housing Act cases,
means that the defendant “at least discriminate[s] in the face of
a perceived risk that its actions will violate federal law to be
liable in punitive damages.” Penasquitos Casablanca, 381 F. App'x
at 677 (internal quotations and citations omitted).
An apartment management company may be liable for punitive
damages if it “knew of or ratified” a discriminatory act by its
agents or the corporation.

See United States v. Tropic Seas,

Inc., 887 F.Supp. 1347, 1365 (D. Haw. 1995).
15

(b) Punitive Damages Pursuant to Hawaii Law
Hawaii law permits an award of punitive damages if the
plaintiff proves by clear and convincing evidence that the
defendant “acted wantonly or oppressively or with such malice as
implies a spirit mischief or criminal indifference to civil
obligations, or that there has been some willful misconduct or
such an entire want of care which would raise the presumption of
a conscious indifference to consequences.”

Kekona v. Bornemann,

349 P.3d 361, 370 (Haw. 2015) (internal quotations and citation
omitted).
In Hawaii, a corporate entity is liable for punitive damages
caused by its agents, so long as the corporation expressly or
impliedly ratified the agent's acts.

Man v. Raymark Indus., 728

F.Supp. 1461, 1470 (D. Haw. 1989).
At the July 1, 2016 Final Pre-Trial Conference, the Parties
agreed to bifurcate the Trial into two components: liability and
damages.

(ECF No. 135).

In the liability phase of the Trial, information concerning
punitive damages is not relevant and would be highly prejudicial.
Fed. R. Evid. 402; 403.
Defendants’ Motion in Limine No. 9 is GRANTED.

16

The Parties may not refer to or introduce into evidence
information relating to punitive damages in the liability phase
of the bifurcated Trial.
CONCLUSION
Defendants’ Motions in Limine Nos. 1, 2, 4, 5, 6, and 9 are
GRANTED.
Defendants’ Motion in Limine No. 7 is GRANTED as to
Attorneys Michael Kozak, John Zalewski, and Andrea Heckler.

IT IS SO ORDERED.

Dated:

July 7, 2016, Honolulu, Hawaii.

___________________________________
Helen Gillmor
United States District Judge

Charles Hicks; Deneen Hicks; and Stacey Hicks v. Association
of Apartment Owners of Makaha Valley Plantation; and Hawaii
First, Inc., Civil No. 11-00254HG-KJM; TRIAL PROCEDURE ORDER
DEFENDANTS’ MOTIONS IN LIMINE NOS. 1, 2, 4, 5, 6, 7, and 9.
17