Present: The Honorable CHRISTINA A. SNYDER Catherine Jeang Laura Elias N/A Deputy Clerk Court Reporter / Recorder Tape No.
Attorneys Present for Plaintiffs: Attorneys Present for Defendants: Matt Sahak Rickey Ivie John Burton Antonio Kizzie
Proceedings: ORDER ON DEFENDANTS’ MOTIONS IN LIMINE (ECF NOS. 98, 99, 100, 101, 102, 103, 104, 105, 106, 108) ORDER ON PLAINTIFF’S MOTIONS IN LIMINE (ECF NOS. 113, 114, 115, 116, 117, 118) I. INTRODUCTION & BACKGROUND The history of this action is known to the parties and is summarized in the Court’s September 23, 2019 order (“Second MSJ Order”) denying defendants Los Angeles County, Los Angeles Sheriff's Department, and Detective Christopher Derry’s second motion for summary judgment. ECF No. 107. For that reason, the Court recites only the factual and procedural background that gives rise to the parties’ respective motions 1n limine (“MILs”). Plaintiff Allen Bernard Shay (“Shay”) filed six MILs on September 30, 2019 (“Shay’s MILs”). ECF Nos. 113-118. Defendants filed oppositions to each of Shay’s MILs on October 2, 2019. ECF Nos. 124-129. Defendants filed ten MILs on September 23, 2019 (“Defs.” MILs” or “Defendants’ MILs”). ECF Nos. 98-106, 108. On October 7, 2019, Plaintiff filed oppositions to Defendants’ MIL Nos. 3, 4, 7, 8, and 9 on October 7, 2019, ECF Nos. 134-35, 138-40, and notices of non-opposition to Defendants’ MIL Nos. 1-2, 5-6, 10, ECF Nos. 132-33, 136- 37, 141.
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES — GENERAL ‘529 U.S. 753, 758 (2000). “Denial of a motion in limine does not necessarily mean that all evidence contemplated by the motion will be admitted at trial. Denial merely means that without the context of trial, the court is unable to determine whether the evidence in question should be excluded.” Matrix Int’l Textile, 2017 WL 2929377, at *1 (internal citation omitted). Ill. SHAY’S MOTIONS IN LIMINE A. Shay’s MIL No.1 Shay moves for an order that “witnesses shall not opine as to the meaning and function of Cal. Penal Code § 1275.1” in testimony at trial, as well as an order excluding related argument from counsel. ECF No. 113-1 at 1. Shay contends that such testimony improperly “instructs the jury on the legal issues,” “usurps the role of the Court,” and— without citing or discussing any legal authority—conclusively asserts that such testimony is inadmissible pursuant to Federal Rules of Evidence (“FRE”) 403 and 702. ECF No. 113 at 3. Defendants respond that Detective Derry’s understanding of § 1275.1—and specifically, whether his conduct followed a reasonable interpretation of § 1275.1—is the central issue to be tried, and an order preventing Detective Derry (or any other witness)
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES — GENERAL ‘239 F.3d 1004 (9th Cir. 2001) (excluding, for these reasons, expert report that purported to “testify about the applicable law”). But in a case such as this one, where whether an officer’s interpretation of a penal statute was reasonable is a material question of fact for the jury to resolve, evidence regarding an officer’s understanding of the law, training and department policy on what the law required, and his belief as to whether his conduct adhered to that understanding and training, is highly relevant. And while it is possible that defendants could attempt to elicit improper legal testimony, or otherwise attempt to submit inadmissible evidence purporting to establish an ultimate legal issue, Shay does not, at this time, identify any particular evidence for exclusion on that basis. The Court, for this reason, finds it would be premature to issue a blanket ruling on the instant motion. Accordingly, the Court DENIES Shay’s MIL No. | without prejudice. Shay may renew the motion at trial in response to specific testimony or evidence.! B. = Shay’s MIL No. 2 In response to a specific argument raised in defendants’ second motion for summary judgment, Shay moves “to exclude at trial any evidence, reference to, or argument that [Shay] could have or should have testified at his arraignment, or any negative inference based on [Shay’s] exercising his Fifth Amendment right not to testify in the underlying criminal case.” ECF No. 114 at 4. Shay contends that the prohibition against drawing a negative inference against a criminal defendant who invokes his Fifth Amendment right to ' Defendants also contend that MIL No. | should also be denied on grounds that hay failed to raise the motion with counsel pursuant to the meet and confer requirements of C.D. Cal. L.R. 7-3. Parties must adhere to the local rules. Because the Court denies MIL No. 1 without prejudice on other grounds, however, the argument raises a moot point that the Court does not reach.
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES — GENERAL ‘582 F.3d 910, 925 (9th Cir. 2009) (holding that criminal defendant had Fifth Amendment right against self-incrimination “in the arraignment hearing” where allegedly coerced statements were used against him in an affidavit filed by the prosecutor). While it is “well established that in a criminal trial a judge or prosecutor may not suggest that the jury draw an adverse inference from a defendant’s failure to testify,” United States v. Solano-Godines, 120 F.3d 957, 962 (9th Cir. 1997), neither the Supreme Court nor the Ninth Circuit have addressed whether a civil plaintiff may face an adverse inference at trial for invoking his Fifth Amendment nghts in a prior criminal proceeding. Shay cites no legal authority forbidding the adverse inference, while defendants present no legal authority permitting it. A federal district court in the Northern District of Illinois, however, recently encountered a virtually identical question. In Patrick v. City of Chicago, 314 F. Supp. 3d 970 (N.D. Ill. 2017), an exonerated prisoner brought a § 1983 action against the City of Chicago, city police officers, and county prosecutors alleging a conspiracy to violate his constitutional rights. During the parties’ opening statements, Patrick’s counsel stated that the civil case “would be the first time” Patrick had “an opportunity to tell his story to a jury of his peers.” Id. at 971. Defense counsel responded in his opening statement that Patrick actually had, but forfeited, the opportunity to tell this story at his criminal trial. Id. The court, sua sponte, ordered the parties to brief whether a plaintiffs “prior Fifth Amendment
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES — GENERAL ‘425 U.S. 308, 318-21 (1976), which holds that the Fifth Amendment permits adverse inferences to be drawn against parties to civil actions when they refuse to testify in response to evidence offered against them in the civil proceeding. See Patrick, 314 F. Supp. 3d at 972. From these bodies of law, the court extracted three relevant principles: “(1) when a defendant exercises his right not to testify absolutely, the government cannot comment upon his silence; (2) instances where silence can be used against a defendant are justified only if (a) inconsistency can be inferred from prior silence and subsequent testimony and (b) there is an element of unfairness (1.e., the defendant should not be permitted to use the Fifth Amendment as both a sword and a shield); and (3) the analysis should be fact specific and carefully balance the protections of the Fifth Amendment against the need for a full and fair development of the facts through cross-examination.” Id. at 974. In view of those principles, the court concluded that Patrick “should not be penalized [in his § 1983 case] for invoking his Fifth Amendment rights during his criminal trial.” Id. at 974-75. The Court finds the reasoning applied in the substantially similar circumstances present in Patrick persuasive, and adopts it here. Shay exercised his constitutional nght not to testify at his arraignment, and if that constitutional right is to have any meaning, its invocation cannot be held to prejudice his civil claims in this action. See Grunewald v. States, 353 U.S. 391, 425 (1957) (Black J., concurring) (“The value of constitutional privileges is largely destroyed if persons can be penalized for relying on them.”): see_also SEC. v. Grossman, 121 F.R.D. 207, 210 (S.D.N.Y. 1987) (“It 1s, however, unconstitutionally coercive to condition the exercise of the Fifth Amendment privilege against self-incrimination on the loss of substantial economic interests.” (citing Garrity v. New Jersey, 385 U.S. 493, 498 (1967)). Shay’s MIL No. 2 is accordingly GRANTED. Evidence or argument that Shay could have, but did not, testify at his arraignment shall not be admissible at trial.
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES — GENERAL ‘921 F.2d 875, 880 (9th Cir. 1990) (holding that the district court properly admitted challenged testimony over the objection that the testimony was supposedly “untrue” since the objection “goes to the weight of the testimony, not its admissibility”). If Shay believes Detective Derry’s testimony is unbelievable, he may draw that out in cross examination, or through other witnesses at trial. But there is no basis to exclude Detective Derry’s testimony altogether pursuant to FRE 401. Similarly, the Court declines Shay’s invitation to exclude the testimony by exercising its discretion pursuant to FRE 403. That rule permits the Court to exclude otherwise relevant evidence if its probative value is substantially outweighed by its prejudicial effect. See Fed. R. Evid. 403. But the only prejudice Shay identifies is the additional effort required to rebut the potentially damaging testimony. That is not a basis to exclude the testtmony. United States v. Bowen, 857 F.2d 1337, 1341 (9th Cir. 1988) (“Prejudice does not mean that the [movant’s] case is merely damaged, for the more probative the evidence is, the more damaging it is apt to be.”). For these reasons, Shay’s MIL No. 3 is DENIED. D. Shay’s MIL No. 4 Shay moves to exclude “evidence, reference to, or argument that [Detective Derry] suspected [Shay] of having access to equity in Eddie Turner’s property.” ECF No. 116 at 4. Shay contends that the evidence is irrelevant and prejudicial because Detective Derry “had no basis for a reasonable belief’ that Shay “had access to any of Eddie Turner’s
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES — GENERAL ‘403 fail to establish that the challenged testimony is prejudicial, let alone substantially more prejudicial than it is probative.” E. Shay’s MIL No.5 Shay moves to exclude “evidence or argument relating to the underlying criminal charges and prosecution against [Shay] other than an outline of the underlying transaction, the charges, and the dismissal.” ECF No. 117 at 4. Shay conclusively asserts, without citation to any authority, case, or rule of evidence, that “[a|ny further evidence or argument relating to the underlying criminal case would be irrelevant, waste time, and unfairly prejudice the jury against one party or the other.” Id. at 3. Defendants respond that Shay’s MIL No. 5 is speculative and seeks to exclude a broad swath of unidentified testimony that could be relevant to establish whether Detective Derry’s bail hold determination was reasonable under the circumstances, or executed with deliberate indifference or reckless disregard for Shay’s rights. ECF No. 128 at 2-5. The Court agrees with defendants. Shay does not identify the specific evidence he seeks to exclude. In fact, Shay’s MIL No. 5 merely identifies four factual assertions whose admission Shay represents he will not oppose. ECF No. 117 at 4-5. At oral argument, Shay’s counsel explained that the purpose of this motion is to streamline trial by agreeing on a set of facts regarding the underlying criminal proceeding that can be presented to the jury. But while this motion was pending, the Court approved a jointly submitted pretrial ? Shay also fails to identify any specific testimony that defendants have submitted, or indicated that they intend to submit, along the lines of the testimony objected to in MIL No. 4. For that reason, too, the motion is denied. See Bullard, 2015 WL 13757143, at *7.
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES — GENERAL ‘401 or FRE 403 (the only two bases for exclusion alluded to in the motion), it would be premature to address Shay’s MIL No. 5 at this juncture. See Bullard, 2015 WL 13757143, at *7: Colton Crane Co., 2010 WL 2035800, at *1. The Court accordingly DENIES Shay’s MIL No. 5, without prejudice. Shay may renew the motion at trial in response to specific testimony or evidence. F. Shay’s MIL No. 6 Shay moves to exclude testimony from defendants’ designated rebuttal expert, Walter Mueller. ECF No. 118 at 3. Defendants intend to call Mueller to testify as to the reasonableness of defendants’ decision to prosecute Shay, and hold him without bail pursuant to § 1275.1 ECF No. 129-7 at 1. Shay contends—again without citation to any authority, case, or rule of law—that Mueller should not be permitted to testify as a rebuttal expert because Shay “has withdrawn the expert, Roger Clark, Mr. Mueller was designated to rebut.” Id. Defendants respond that Mueller was properly disclosed pursuant to Federal Ruel of Civil Procedure 26, and should be permitted to testify. ECF No. 129 at 2-5. Shay does not argue that Mueller was improperly disclosed. Nor does he contest defendants’ ability to call Mueller to testify as a percipient witness. His only argument is that Mueller no longer has any basis to testify as an expert now that Shay has withdrawn the affirmative expert Mueller was designated to rebut. This argument has some merit. In Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748 (8th Cir. 2006), for instance, the Eighth Circuit held that a district court “did not abuse its discretion in refusing to allow [plaintiffs expert witness] to testify in rebuttal” on topics related to medical causation because defendants “presented no evidence on medical causation” during their defense case in chief “and therefore, there was no evidence for [the proposed rebuttal expert] to rebut.” Id. at 760-61. “Circumstances may exist in which the party proffering and then withdrawing an affirmative expert,” like Shay here, “might prevail on such an argument.” Olivero v. Trek Bicycle Corp., No. 16-CV-00761-WJM (MJW), 2018 WL 3459424, at *1 (D. Colo. July
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES — GENERAL ‘401). Mueller
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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES — GENERAL ‘477 U.S. 299, 306 (1986). The Supreme Court has accordingly held that “mental and emotional distress caused by the denial of procedural due process . . . is compensable under § 1983,” provided that there is “proof that such injury actually was caused” by the alleged constitutional violation. Carey v. Piphus, 435 U.S. 247, 264 (1978). Whether or not Shay can prove that his postarrest incarceration was the actual and proximate cause of the reputational injuries he claims to have suffered as a result of the press release, he is entitled to present evidence of the press release for the purpose of establishing the scope of those claimed injuries. The dismissal of Shay’s defamation claim does not prevent Shay from seeking these alleged reputational damages on his remaining postarrest incarceration claim. Defendants’ MIL No. 4 is accordingly DENIED. D. Defendants’ MIL No. 7 Defendants move to exclude “all evidence, references, questioning, argument, and testimony” that Detective Derry’s § 1275.1 bail hold declaration “was ‘false,’ ‘fabricated,’ or otherwise judicially deceptive.” ECF No. 104 at 2. Defendants contend that the falsity or deceptiveness of Detective Derry’s bail hold declaration “is simply not the issue” because the Ninth Circuit affirmed this Court’s conclusion that Detective Derry “did not engage in judicial deception.” Id. at 4. Shay states that while he “will abide the Ninth Circuit’s mandate” and “will not present evidence or argue that trial that the arrest warrant application was judicially deceptive,” the “only remaining issues in this case concern
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES — GENERAL ‘885 F.2d 1384, 1389-90 (9th Cir. 1988) (“A plaintiff who establishes liability for deprivations of constitutional mghts actionable under 42 U.S.C. § 1983 is entitled to recover compensatory damages for all injuries suffered as a consequence of those deprivations,” including, in cases like this one,
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES — GENERAL ‘100 F. Supp. 3d 8, 10 (D.D.C. 2015) (denying MIL to exclude testimony of § 1983 plaintiff's criminal defense attorney because “the testimony regarding the cost of Plaintiff's legal fees for the underlying criminal action is relevant to Plaintiff's [§ 1983] claim in so far as Plaintiff is seeking compensatory damages for that claim that would include his legal fees”). Additionally, to the extent Matthewson can testify to facts related to Shay’s efforts to mitigate his damages during the period in which he was incarcerated, that testimony is also relevant. See ECF No. 125 at 2-4 (defendants’ opposition to Shay’s MIL No. 2 indicates that defendants intend to raise Shay’s alleged failure to mitigate damages as an affirmative defense). Defendants’ MIL No. 8 is accordingly DENIED. At the pretrial conference, the Court expressed concerns that Matthewson’s testimony will be cumulative. Specifically, simce Shay can submit damages evidence related to Matthewson’s fees (i.e. the total amount paid) himself, and since the Court has already excluded the alleged “failure to mitigate” evidence related to Shay’s decision not to testify at his arraignment, see supra §III.B granting Shay’s MIL No. 2, the Court requested that Shay explain what non-cumulative evidence he intends to offer from Matthewson at trial. After oral argument, the Court is persuaded that Matthewson may have non-cumulative testimony to rebut evidence related to Shay’s alleged failure to mitigate, but only to the extent that defendants open the door. The Court is less persuaded that Matthewson’s damages testimony will be non-cumulative. The Court accordingly reserves ruling on the cumulative nature of Matthewson’s testimony until trial. F. Defendants’ MIL No. 9 Defendants move to exclude evidence of “third party misconduct not directly attributable to” Detective Derry. ECF No. 106 at 2. Defendants contend that Shay should not be allowed to present evidence related to the conditions he encountered or incidents of mistreatment or emotional distress he experienced during his postarrest incarceration
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