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

Filing 150

TRIAL PROCEDURE ORDER DEFENDANTS' MOTIONS IN LIMINE NOS. 3, 8, 10 AND 11 re 106 , 112 , 113 , 114 and 147 - Signed by JUDGE HELEN GILLMOR on 7/13/2016. "Defendants' Motions in Limine Nos. 3 and 8 a re GRANTED. Motion in Limine No. 10 is GRANTED as to Chris Raquedan and Clifford Oliviera. Plaintiffs have WITHDRAWN Marjorie Collier, Gregory Sokolowski, Robin Heath, Keith Brunner, Attorney Arnold T. Phillips, Jelani Matabaraka, Julius Hudson, and Frank Condello as Trial witnesses." (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 A. Hicks, Deneen Hicks, and Stacey Hicks shall be served by first class mail at the address of record on July 14, 2016.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
Charles A. 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. 3, 8, 10, and 11
Defendants Association of Apartment Owners of Makaha Valley
Plantation and Hawaii First, Inc. (collectively, “Defendants”)
have filed 11 motions in limine.
On July 11, 2016, the Court held a further Final Pre-Trial
Conference, during which the Court heard argument and rendered
oral rulings on Motions in Limine Nos. 3, 8, 10, and 11.

This

written order sets forth the Court’s legal bases for the rulings.

Motion in Limine No. 3 to Bar References to Unpled Claims (ECF
No. 106)
Motion in Limine No. 8 to Exclude Evidence Relating to the
Foreclosure on Plaintiffs' Condominium Unit (ECF No. 112)
Defendants’ Motion in Limine No. 3 seeks to bar any

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reference or evidence concerning claims and remedies that are not
asserted in Plaintiffs’ Amended Complaint.

Motion in Limine No.

8 asks that the Court bar any reference or evidence concerning
the foreclosure on Plaintiffs’ condominium unit, as Plaintiffs
did not assert such a claim in their Amended Complaint.

The

Amended Complaint states only that “as a result of the adverse,
discriminatory terms and conditions of residency that they have
been subjected to by the defendants[,] . . . the plaintiffs have
vacated their condo unit and are currently living in Georgia.”
(Amended Complaint at p. 15, ECF No. 40).

There is no reference

in the Amended Complaint as to the foreclosure on the unit.
The Court may exclude evidence that is irrelevant or has a
probative value that is substantially outweighed by a danger of
unfair prejudice, confusion of the issues, and could mislead the
jury.

Fed. R. Evid. 402; 403.
Plaintiff Charles Hicks has filed another lawsuit

challenging the foreclosure, but that lawsuit does not allege
that the foreclosure had any connection to housing
discrimination.

Charles A. Hicks v. Ass’n of Apt. Owners of

Makaha Valley Plantation; R. Laree McGuire, 16-cv-00249-JMS-RLP,
ECF No. 1.
Allegations by Plaintiffs that Defendants were responsible
for the foreclosure of their condominium are not part of the
Plaintiffs’ claims and are highly prejudicial.

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See Scotts Co. v.

Cent. Garden & Pet Co., No. 2:00 CV 755, 2002 WL 1578791, at *1
(S.D. Ohio Apr. 4, 2002) (granting motion in limine to exclude
references to an new and unpled claim).

Exposing the jury to

unsubstantiated allegations would cause significant confusion and
distract the jury from its task.

Fed. R. Evid. 403.

Defendants’ Motion in Limine Nos. 3 and 8 are GRANTED.
Both Parties are precluded from introducing any testimony,
evidence, or argument, as to unpled claims, including the
foreclosure on Plaintiffs’ condominium unit.
Motion in Limine No. 10 to Exclude Cumulative Witnesses (ECF No.
113)
Defendants seek to preclude Plaintiffs from calling
witnesses whose testimony will be cumulative, duplicative, or
redundant.
Federal Rule of Evidence 403 permits the Court to exclude
needlessly cumulative testimony that has little incremental
value.

United States v. Miguel, 87 F. App'x 67, 68-69 (9th Cir.

2004); Fed. R. Evid. 403.
admitted evidence.”
(9th Cir. 1979).

“Cumulative evidence replicates other

United States v. Ives, 609 F.2d 930, 933

A witness’s testimony may be needlessly

cumulative if the plaintiff presents evidence bearing on the same
point through other witnesses.

Rogers v. Raymark Indus., Inc.,

922 F.2d 1426, 1430-31 (9th Cir. 1991) (affirming district

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court’s decision to exclude witness testimony that had little
probative value and presented cumulative testimony).
Defendants’ Past and Present Employees
Plaintiffs intend to call the following witnesses:
Nancy Kauwe;
Albert Iokepa;
Jolynn Mehrtens;
Shirley Landford;
Joseph Nunuha;
Tiso Maaina;
Chris Hodges;
Danny Brewer; and
Anson Amaral.
Plaintiffs state that the witnesses are all current or
former employees of Defendants.

Plaintiffs represent that they

intend to question the witnesses about interactions with
Plaintiffs and their knowledge of Plaintiffs’ claims.
Plaintiffs may serve trial subpoenas for those witnesses who
are current employees of Defendants upon defense counsel or at
Defendants’ places of business.

Plaintiffs must indicate to

defense counsel when each witness is scheduled to testify.
The Defendant AOAO’s Board Members
Plaintiffs wish to call AOAO board members Lawrence Moore
(“Moore”) and Tommy Sowell (“Sowell”) as witnesses.
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Moore is a witness for Defendants and is knowledgeable about
the AOAO board’s governance of the Makaha Valley Plantation.
Plaintiffs wish to question Sowell about the circumstances
surrounding the AOAO board’s awareness of Plaintiffs’ disputes
with their upstairs neighbors.
Plaintiffs indicated that they may wish to call former AOAO
board member Keith Marini (“Marini”) to testify at Trial, but
they have not spoken with him.

Defendants shall inspect their

records and provide any available present or former contact
information for Marini to Plaintiffs by Tuesday, July 12, 2016.
There has been no representation by Plaintiffs that justifies an
appearance by Marini by telephone.

At this time, the Court will

not permit Marini to testify via telephone; if there are special
circumstances concerning his testimony, Plaintiffs may present
them to the Court.
At the July 11, 2016 further Final Pre-Trial Conference,
Plaintiffs WITHDREW the following AOAO board member witnesses:
Marjorie Collier;
Gregory Sokolowski; and
Robin Heath.
The Attorney Witnesses
On July 7, 2016, the Court filed an Order that precludes
Plaintiffs from calling Attorneys Michael Kozak, Esq., John D.

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Zalewski, Esq., and Andrea Heckler, Esq. as Trial witnesses.
(ECF No. 137).
At the July 11, 2016 further Final Pre-Trial Conference,
Plaintiffs WITHDREW their request to call Attorney Arnold T.
Phillips, Esq. as a Trial witness.

Plaintiffs indicated Attorney

Phillips did not have evidence he could present at Trial.
Charles Hicks’ Doctor
At the July 11, 2016 further Final Pre-Trial Conference,
Defendants stipulated that Charles Hicks suffers from Post
Traumatic Stress Disorder (“PTSD”) as a result of his service as
a Marine in the Vietnam War.

The Defendants also stipulated that

PTSD is a qualifying disability pursuant to state and federal
law.
Plaintiffs represent that Dr. Medjuck is Plaintiff Charles
Hicks’ physician, and is familiar with how PTSD affects Charles
Hicks.

Plaintiffs intend to question Dr. Medjuck about Charles

Hicks’ condition.
expert witness.
PTSD.

Dr. Medjuck was not, however, named as an

Dr. Medjuck may not testify as an expert on

The Court will allow the doctor to testify as to Charles

Hicks’ condition.

He may also testify in the damages phase of

the Trial as to the effect on Charles Hicks if liability is
established.
The Court will revisit the issue of Dr. Medjuck’s testimony
as the trial progresses.
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Plaintiffs’ Other Witnesses
Plaintiffs wish to call their son Thomas Hicks, Tommy
Frazier, and David Gill as percipient witnesses.
Plaintiffs represented that Thomas Hicks will testify as to
the condominium unit’s condition when he lived with Plaintiffs,
and Tommy Frazier will testify about his experience during his
six-month stay in Plaintiffs’ unit.

Plaintiffs also state that

David Gill, who was the owner of the condominium unit above
Plaintiffs’ home, will testify as to the water leaks that came
from his unit on or about 2013.
At the July 11, 2016 further Final Pre-Trial Conference,
Plaintiffs WITHDREW the following witnesses:
Keith Brunner;
Jelani Matabaraka;
Julius Hudson; and
Frank Condello.
Plaintiffs’ Character Witnesses
Plaintiffs wish to call Chris Raquedan (“Raquedan”) and
Clifford Oliviera (“Oliviera”) as character witnesses.
Character evidence is generally not relevant and is
inadmissible.

Fed. R. Evid. 103; 404.

Federal Rule of Evidence

404 provides that “[e]vidence of a person’s character or
character trait is not admissible to prove that on a particular
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occasion the person acted in accordance with the character or
trait.”

Fed. R. Evid. 404(a)(1).

Plaintiffs intend to call Raquedan and Oliviera to testify
about their good moral character.

Plaintiffs represented that

their testimony would show that Plaintiffs have been of
upstanding moral character in the past, and therefore had good
moral character during their stay at the Makaha Valley
Plantation.

The anticipated testimony of Raquedan and/or

Oliviera falls within Federal Rule of Evidence 404's general ban
on character evidence.

See Keene v. Sears, Roebuck & Co., No.

CIV A 05-828 JJH, 2007 WL 2572366, at *1 (D.N.J. Sept. 4, 2007)
(“This type of evidence is the exact type of character evidence
that the rule forbids”).

Plaintiffs have not established that

the testimony of Raquedan and/or Oliviera would qualify under a
recognized exception to the general rule against character
evidence.

Plaintiffs’ character is not at issue in this case.

Gates v. Rivera, 993 F.2d 697, 700 (9th Cir. 1993) (“Character
evidence is normally not admissible in a civil rights case”).
Plaintiffs wish to call Raquedan and Oliviera solely for the
purpose of character evidence, which is not admissible.

Defendants’ Motion in Limine No. 10 is GRANTED with respect
to Chris Raquedan and Clifford Oliviera.
Plaintiffs have WITHDRAWN the following Trial witnesses:

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Marjorie Collier;
Gregory Sokolowski;
Robin Heath;
Keith Brunner;
Attorney Arnold T. Phillips;
Jelani Matabaraka;
Julius Hudson; and
Frank Condello.

Motion in Limine No. 11 to Exclude Handwritten Notes (ECF No.
114)
Defendants seek to exclude two handwritten notes or any
reference to the notes, which were attached as exhibits to
Plaintiffs’ Final Pre-Trial Conference Statement.
Deneen Hicks represents that she wrote both notes.

Plaintiff
Both notes

are unsigned and undated.
A party must authenticate a document before introducing it
into evidence.

Fed. R. Evid. 901.

The trial court must be

satisfied that the document in question is accurate, authentic,
and generally trustworthy.

United States v. Panaro, 266 F.3d

939, 951 (9th Cir. 2001).1

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A handwritten document may be authenticated through
testimony of a witness who has personal knowledge that the
document is what the proffering party claims it to be, Fed. R.
Evid. 901(b)(1); Pahl v. Commissioner, 150 F.3d 1124, 1132 (9th
Cir. 1998).
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The First Note (Ex. A of Defs. Motion in Limine No. 11)
At the July 11, 2016 further Final Pre-Trial Conference,
Plaintiffs withdrew their opposition to Defendants’ request to
exclude the first handwritten note.
The note is a testimonial narrative concerning past events
that the author states “these are the things I have proof (or can
get) of.”

It references information concerning the Plaintiffs’

experiences in the U.S. Virgin Islands, and other events that are
unrelated to Plaintiffs’ discrimination claims in this case.
Fed. R. Evid. 402.
Plaintiffs state that the note was written contemporaneously
with the events to which they refer, but the note describes
events that occurred over the course of three years.

It appears

to have been written in anticipation of litigation.
Federal Rules of Evidence 803 and 807 generally govern the
admission of documents offered to prove the truth of their
contents.

Fed. R. Evid. 803; 807; see also Clark v. City of

L.A., 650 F.2d 1033, 1036 (9th Cir. 1981) (applying Rule 803 and
the residual exception).

Hearsay writings are not admissible,

unless they fall under one of Rule 803's recognized exceptions or
pursuant to Rule 807.
Plaintiffs have not shown that the first note qualifies for
admission pursuant to Rules 803 or 807.

There is no indication

that the document contains present sense impressions, excited

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utterances, or statements concerning the writer’s then-existing
state of mind or condition.

Fed. R. Evid. 803(1)-(3).

In

addition, the note does not contain circumstantial guarantees of
trustworthiness, nor is it more probative than any other evidence
Plaintiffs have.

Fed. R. Evid. 807(a)(1)-(3).

The note is “is a

heavily emotive document that does not simply relate factual
occurrences, but is written in a style designed to arouse
sympathy and create enmity for the [Defendants].

Further, the

document constitutes a written account of practically all of
[Plaintiffs’] case against the [Defendants].”

Clark, 650 F.2d at

1038 (finding admission of diary reversible error), cert. denied,
456 U.S. 927 (1982).
Defendants’ Motion in Limine No. 11 is GRANTED with respect
to the first handwritten note, attached as Exhibit A of Motion in
Limine No. 11.
Plaintiffs are precluded from introducing any testimony,
evidence, argument, or other references to the note.

The Second Note (Ex. B of Defs. Motion in Limine No. 11)
Plaintiffs’ second note appears to be a summary of incidents
concerning the water leaks in Plaintiffs’ condominium.

There is

no indication that the note was written contemporaneously with
the events it describes.

There are three separate dates listed

on the document and various styles of writing.
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Plaintiffs have not indicated if they wish to admit the note
into evidence, or to use it to refresh a witness’s memory
pursuant to Rule 612.

See Alexander v. Cit Tech. Fin. Servs.,

Inc., 217 F.Supp.2d 867, 882-83 (N.D. Ill. 2002) (barring
admission of handwritten notes on hearsay grounds, but permitting
the Plaintiff to use the document to refresh her recollection).
The Court will hear further argument as to the second
handwritten note.
CONCLUSION
Defendants’ Motions in Limine Nos. 3 and 8 are GRANTED.
Motion in Limine No. 10 is GRANTED as to Chris Raquedan and
Clifford Oliviera.
Plaintiffs have WITHDRAWN Marjorie Collier, Gregory
Sokolowski, Robin Heath, Keith Brunner, Attorney Arnold T.
Phillips, Jelani Matabaraka, Julius Hudson, and Frank Condello as
Trial witnesses.

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Motion in Limine No. 11 is GRANTED as to the first
handwritten note, attached as Exhibit A of Motion in Limine No.
11.

IT IS SO ORDERED.
Dated:

July 13, 2016, Honolulu, Hawaii.

___________________________________
Helen Gillmor
United States District Judge

Charles A. Hicks; Deneen Hicks; and Stacey Hicks v. Association
of Apartment Owners of Makaha Valley Plantation; and Hawaii
First, Inc., Civil No. 14-00254HG-KJM; TRIAL PROCEDURE ORDER
DEFENDANTS’ MOTIONS IN LIMINE NOS. 3, 8, 10, and 11.
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