C. G. v. Soledad Unified School District

• Court: District Court, N.D. California
• Decided: June 26, 2021
• Docket: 5:19-cv-06196-VKD
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 JAMES GOODELL, et al., Case No. 19-cv-06196-VKD

9 Plaintiffs, ORDER RE MOTIONS IN LIMINE v. 10 Re: Dkt. Nos. 104-111 11 SOLEDAD UNIFIED SCHOOL DISTRICT, et al., 12 Defendants.

13 14 The Court held a pretrial conference in this matter on June 23, 2021. Dkt. No. 130. This 15 order resolves the parties’ motions in limine. Dkt. Nos. 104, 105, 106, 107, 108, 109, 110, 111. 16 The Court will issue separate orders regarding the parties’ proposed jury instructions (Dkt. No. 17 117, Exs. 6(a), 6(b)) and other matters discussed during the pretrial conference.1 18 I. PLAINTIFFS’ MOTION IN LIMINE NO. 1 19 A. Heather Goodell’s Employment with the District 20 Plaintiffs move for an order excluding any evidence regarding Heather Goodell’s 21 employment as a substitute teacher with the District. Dkt. No. 105. They argue that evidence of 22 her conduct, personality traits, and performance as a substitute teacher, and specifically any 23 evidence that she treated students poorly, is inadmissible character evidence that is not relevant to 24 any issue in dispute. Fed. R. Evid. 401, 402, 403, 404(a). The District argues that such evidence 25 is relevant to show that it does respond to complaints that students are being abused. Additionally, 26

27 1 After motions in limine were filed, and following the pretrial conference, the parties confirmed 1 inasmuch as the District says it did not invite Heather Goodell to return as a substitute teacher 2 after receiving complaints about her conduct, the District contends that evidence of her 3 employment as a substitute teacher is also relevant to show a possible motive for plaintiffs’ 4 decision to pursue the present lawsuit. 5 The motion is granted. 6 The District does not dispute that it has no information that Heather Goodell harmed C.G. 7 or that C.G.’s injuries were caused by her conduct.2 In the absence of such evidence, the District 8 appears to argue that evidence of Ms. Goodell’s conduct at school is admissible because it would 9 allow the jurors to infer that if she treated students poorly when she served as a substitute teacher, 10 she also treated C.G. poorly and is at least partially responsible for his injuries. See Dkt. No. 116 11 at 3. Such evidence is inadmissible character and propensity evidence. Fed. R. Evid. 404(a). 12 At the hearing on this motion, the District argued that it should be permitted to 13 demonstrate that Ms. Goodell herself engaged in the same type of abusive behavior that plaintiffs 14 say Mr. Notheis engaged in with respect to C.G. It is not clear to the Court how evidence of Ms. 15 Goodell’s alleged hypocrisy is relevant to any matter at issue in the case, and the District was 16 unable to identify any such matter. The Court excludes this evidence on the additional ground that 17 it is not relevant and would be unfairly prejudicial to plaintiffs. Fed. R. Evid. 401, 402, 403. 18 Similarly, the District argues that evidence of Ms. Goodell’s conduct and employment as a 19 substitute teacher is relevant to show that she initiated this action on behalf of C.G. and against 20 defendants because of her presumed displeasure at not being asked to substitute teach. See Dkt. 21 No. 116 at 5. Ms. Goodell’s motives for filing this action on behalf of C.G. are not relevant to any 22 matter at issue in the case. The Court also excludes this evidence on the additional ground that it 23 is not relevant and would be unfairly prejudicial to plaintiffs. Fed. R. Evid. 401, 402, 403. 24 B. Evidence re Monterey County Department of Social Services (“MCDSS”) 25 Discovery yielded evidence that both Mr. Notheis and Mr. Calderon contacted MCDSS 26 concerning their suspicions that James and Heather Goodell were abusing C.G. Plaintiffs argue 27 1 that any evidence concerning the MCDSS is irrelevant and constitutes improper character 2 evidence. Fed. R. Evid. 401, 402, 403, 404. Additionally, there being little evidence relating to 3 MCDSS, plaintiffs argue that the nature and extent of the MCDSS’s involvement in matters 4 concerning C.G. is unknown and highly speculative. 5 The District argues that any evidence showing that Mr. Calderon and Mr. Notheis reported 6 their suspicions of abuse, as opposed to any subsequent findings by MCDSS, is relevant to show 7 how they responded to concerns about student safety, and is admissible under Federal Rule of 8 Evidence 406 to demonstrate a routine practice of mandatory reporting compliance upon 9 development of a reasonable suspicion of abuse. The District also contends that such evidence is 10 relevant to show James and Heather Goodell’s possible motive for filing the present lawsuit. The 11 District further contends that the risk of any prejudicial effect of allowing such evidence can be 12 mitigated through an appropriate limiting instruction to the jury. 13 The motion is granted. 14 The Court is not persuaded that evidence that Mr. Calderon and Mr. Notheis contacted 15 MCDSS on one occasion concerning their suspicions that the Goodells were abusing C.G. is 16 evidence of their or the District’s practice of reporting concerns about student safety, nor would its 17 exclusion prevent them from introducing evidence of such a practice.3 Rather, admission of this 18 evidence would allow the District to improperly suggest to the jury that because MCDSS was 19 contacted, the Goodells had, in fact, abused C.G. The parties appear to agree that there is no 20 evidence of any such findings by MCDSS. In the absence of any evidence, the Court excludes 21 evidence of these contacts to MCDSS as unfairly prejudicial to plaintiffs and likely to confuse or 22 mislead the jury. Fed. R. Evid. 401, 402, 403. If, however, plaintiffs inquire regarding whether 23 Mr. Calderon or Mr. Notheis ever reported suspected abuse to MCDSS, the Court will permit 24 them to answer truthfully about their report of suspected abuse by the Goodells. 25 26 27 1 II. DEFENDANT JAIME NOTHEIS’S MOTIONS IN LIMINE4 2 A. Motion in Limine No. 1 (Alleged Conduct Toward Others) 3 Defendant Jaime Notheis moves for an order precluding plaintiffs from introducing 4 evidence of alleged conduct involving persons other than C.G. Dkt. No. 104. Specifically, the 5 evidence at issue concerns reports of alleged conduct by Mr. Notheis toward (1) other students in 6 his class at San Vicente Elementary School prior to and during the time period C.G. was in his 7 class, (2) adult coworkers before and after the relevant time period, and (3) other students at Main 8 Street Middle School. Mr. Notheis argues that this evidence is impermissible character evidence 9 that is not probative of any material facts at issue. Fed. R. Evid. 401, 402, 403, 404. 10 Plaintiffs say that they do not intend to introduce evidence of any misconduct that occurred 11 after Mr. Notheis’s alleged abuse of C.G., unless the District opens the door to such evidence. 12 Accordingly, Mr. Notheis’s motion to exclude all such evidence of his conduct is granted, subject 13 to the use of such evidence for impeachment or rebuttal if the District should open the door to 14 such evidence at trial. 15 However, plaintiffs maintain that evidence of any misconduct that occurred before and 16 during the time C.G. was in Mr. Notheis’s classroom is directly relevant to their claims under the 17 Bane Act, Cal. Civ. Code § 52.1 and for negligence.5 Plaintiffs argue that the probative value of 18 the evidence far outweighs any prejudicial effect. 19 With respect to other conduct before and during the relevant time period, the Court denies 20 the motion, subject to consideration of the nature and extent of the specific evidence to be offered 21 at trial. 22 Mr. Notheis is correct that evidence of his other alleged misconduct may not be used to 23 show that he acted in conformity with that other misconduct with respect to the disputed 24 4 The Court will address Mr. Notheis’s motions in limine inasmuch as they overlap with some of 25 the District’s motions (discussed below) and concern evidence that remains at issue, notwithstanding the parties’ stipulation to dismiss Mr. Notheis from this lawsuit. 26

5 Plaintiffs also argued that the subject evidence is relevant to their claim under 42 U.S.C. § 1983, 27 but, as noted above, they have since agreed to dismiss the individual defendants. As discussed at 1 conducted relating to C.G. Fed. R. Evid. 404(a). However, because the District is now the only 2 remaining defendant, the stated concerns about inadmissible character evidence as to Mr. Notheis 3 is of less concern. Additionally, plaintiffs argue that evidence of other misconduct is relevant for 4 at least two reasons: (i) to show that the District had knowledge of Mr. Notheis’s abusive conduct 5 dating back to 2012 such that the alleged misconduct directed at C.G. was reasonably foreseeable, 6 and (ii) to show that the District, having responsibility for teacher supervision and retention, had a 7 routine practice of tolerating Mr. Notheis’s abusive conduct. Plaintiffs say that this evidence is 8 relevant to their negligent supervision and retention claim and to their Bane Act claim. The Court 9 agrees with plaintiffs that evidence of Mr. Notheis’s other alleged misconduct prior to and during 10 the time C.G. was in Mr. Notheis’s classroom is relevant. Fed. R. Civ. P. 404(b), 406; see 11 Virginia G. v. ABC Unified School District, 15 Cal. App. 4th 1848, 1855 (1993) (“[W]hile 12 [teacher’s] conduct in molesting [student] will not be imputed to the District, if individual District 13 employees responsible for hiring and/or supervising teachers knew or should have known of 14 [teacher’s] prior sexual misconduct towards students, and thus, that he posed a reasonably 15 foreseeable risk of harm to students under his supervision . . . the employees owed a duty to 16 protect the students from such harm.”). 17 However, the Court is concerned about the nature and extent of the evidence plaintiffs 18 propose to introduce on these matters. The Court will permit evidence (documents and testimony) 19 of reports and complaints of acts of alleged misconduct similar to those C.G. is alleged to have 20 experienced, made to the District by aides, other teachers, or parents. However, the Court is 21 reluctant to permit extended testimony or other evidence detailing each incident underlying the 22 matters that were actually reported or complained of, as such evidence may have a tendency to 23 confuse or mislead the jury regarding the particular matters at issue in this case.6 24 B. Motion in Limine No. 2 (Status of Employment and Teaching Credential) 25 Mr. Notheis moves to preclude plaintiffs from introducing any evidence of the current 26 status of his employment with the District and teaching credential. Dkt. No. 104. Mr. Notheis’s 27 1 employment with the District ended after the alleged events involving C.G. The State of 2 California subsequently revoked his teaching credential. Mr. Notheis argues that these facts are 3 irrelevant to the issue whether he engaged in alleged abuse of C.G. and is more prejudicial than 4 probative. 5 Plaintiffs stipulate that all evidence pertaining to Mr. Notheis’s teaching credential should 6 be excluded. Accordingly, Mr. Notheis’s motion to exclude all such evidence is granted. 7 As for Mr. Notheis’s employment status, plaintiffs propose that the Court instruct the jury 8 that Mr. Notheis no longer works for the San Vicente Elementary School, and that the jury should 9 not draw any inference from that fact. At the hearing on the motion, defendants advised that they 10 concur in this proposal. Accordingly, the Court will instruct the jury as plaintiffs propose. The 11 parties shall confer regarding the text of the instruction and shall advise whether it may be 12 included in the statement of undisputed facts to be read to the jury. 13 III. DISTRICT’S MOTIONS IN LIMINE 14 A. Motion in Limine No. 1 (Draft Expert Reports) 15 The District moves for an order precluding plaintiffs from presenting, referencing, or 16 otherwise communicating to the jury in any way—including during voir dire—drafts of Dr. Laura 17 Schreibman’s expert report. The District says that the draft reports were inadvertently produced to 18 plaintiffs in discovery and that any reference to the contents of those drafts could unfairly create 19 the impression that the opinions expressed are less firmly held than they are, and are not Dr. 20 Schreibman’s own conclusions. However, the District does not object to any questioning at trial 21 about the extent to which Dr. Schreibman consulted with or relied on two other experts, Dr. 22 Richard J. Shaw and Dr. Pamela Mills, in preparing her report. 23 Plaintiffs maintain that the District repeatedly failed to properly disclose the facts, data and 24 bases for Dr. Schreibman’s opinions and that it remains unclear to what extent she relied upon 25 other experts in preparing her report. If the Court allows Dr. Schreibman to testify at trial, 26 plaintiffs argue that they should be permitted to thoroughly cross-examine her as to the 27 circumstances and people involved with each draft of her report. 1 Expert reports generally are not admissible evidence of the opinion of a testifying expert, 2 but they may be used for the purpose of impeachment. Draft reports generally are not even 3 discoverable. The Court interprets the District’s motion as arguing that Dr. Schreibman’s draft 4 reports were inadvertently produced and that defendants did not intend to waive the work product 5 protection that otherwise attaches to draft expert reports pursuant to Rule 26(b)(4)(B) of the 6 Federal Rules of Civil Procedure. In support of that argument, the District would have to show 7 that (1) disclosure of the drafts was inadvertent, (2) reasonable steps were taken to prevent 8 disclosure, and (3) the District promptly took steps to rectify the error in compliance with Rule 9 26(b)(5)(B). See Fed. R. Evid. 502(b). 10 The Court need not reach this issue, however, as plaintiffs represented at the hearing on 11 this motion that they do not intend to use Dr. Schreibman’s draft reports for any purpose. 12 B. Motion in Limine No. 2 (Internal District Policies) 13 The District moves for an order precluding plaintiffs from presenting, referencing, or 14 otherwise communicating to the jury in any way that internal District policies create a legal 15 standard of care. Dkt. No. 107. According to the District, public entities may be liable for tortious 16 injury caused by an act or omission only if a statute declares them to be liable. As such, the 17 District contends that permitting evidence or argument that its policies create a standard of care 18 would confuse and mislead the jury. Fed. R. Evid. 403. Plaintiffs argue that the District can be 19 liable under a general negligence theory and that evidence of the District’s policies therefore are 20 relevant to the District’s duty of care. 21 The motion is denied. 22 While the District is correct that its policies do not define the District’s statutory duties, the 23 policies are nevertheless relevant to plaintiffs’ negligence claims. While noncompliance with such 24 policies will not establish negligence per se, noncompliance with an internal policy may be 25 relevant evidence of a breach of a duty of care. See, e.g., M.W. v. Panama Buena Vista Union 26 School District, 110 Cal. App. 4th 508, 512 (2003) (discussing evidence of school district before- 27 school supervision policy). At the hearing, plaintiffs identified two exhibits—Exhibits 26 and 1 two exhibits as part of its objections to plaintiffs’ trial exhibits. The Court will permit evidence of 2 the policies reflected in these exhibits. 3 C. Motion in Limine No. 3 (Notheis’s Alleged Prior and Subsequent Conduct) 4 and Motion in Limine No. 4 (Notheis’s Treatment of Other Students) 5 These motions are virtually identical to defendant Notheis’s Motion in Limine No. 1, and 6 the Court reaches the same result. 7 D. Motion in Limine No. 5 (“Golden Rule” and/or “Reptile Theory”) 8 The District moves for an order precluding plaintiffs from presenting, referencing or 9 otherwise communicating, arguing, or suggesting to the jury that jurors should reach a verdict by 10 placing themselves in the position of either the defendant or the plaintiffs. Plaintiffs argue that the 11 District’s motion is both overbroad and premature, and fails to identify any specific evidence or 12 argument that may be at issue. Additionally, plaintiffs contend that arguments directing the jury to 13 consider safety as the reasonable standard of conduct is well within the scope of permissible 14 advocacy. 15 As discussed at the hearing on this motion, the Court expects counsel for all parties to 16 refrain from engaging in improper closing argument, and it will not categorically prohibit the 17 particular trial strategy or form of argument that the District refers to as “reptile” theory. See, e.g., 18 McNally v. Riis, No. 18-CV-1150 JLS (AGS), 2020 WL 209141, at *7 (S.D. Cal. Jan. 14, 2020) 19 (declining to exclude such arguments). 20 E. Motion in Limine No. 6 (Plaintiffs’ Expert Robert Johnson) 21 Plaintiffs retained Mr. Johnson to assess economic damages. The District moves for an 22 order excluding Mr. Johnson’s testimony on the ground that his analysis is based on a flawed 23 methodology. Dkt. No. 111. Specifically, the District argues that he relied on an improper 24 negative discount rate, as well as on an interest rate derived from a single date in an aberrational 25 time period, rather than a historical average. The District also seeks an order precluding Mr. 26 Johnson from (1) referencing caselaw, jury instructions or other legal authority in explaining how 27 he reached his opinions and conclusions and (2) critiquing or discussing the opinions and 1 Plaintiffs argue that this motion should be denied as an untimely Daubert’ motion. But 2 || even if the Court considers the motion on the merits, plaintiffs contend that Mr. Johnson’s 3 methodology is appropriate and acceptable under Jones v. Laughlin Steel Corp. v. Pfeifer, 462 4 U.S. 523 (1983) and Trevino v. United States, 804 F.2d 1512 (9th Cir. 1986). Moreover, plaintiffs 5 state that while they do not intend to elicit legal opinions from Mr. Johnson at trial, Mr. Johnson 6 || should be permitted to explain that he conducted his analysis in accordance with appropriate legal 7 || frameworks, so long as he does not explain their substance. Finally, plaintiffs contend that Mr. 8 || Johnson should be permitted to respond to Mr. Volk’s opinions at trial, including that Mr. Johnson 9 || found documentation in Mr. Volk’s file to be incomplete and that Mr. Volk’s deposition was not 10 || completed. 11 The portion of the motion directed to Mr. Johnson’s use of a negative discount rate is an 12 || untimely Daubert motion and is denied on that basis. 5 13 As to the remainder of the motion, the Court will not permit Mr. Johnson or any other 14 || witness to testify regarding what the law is. Mr. Johnson may describe what he did and may, if 3 15 necessary, describe his understanding of what is required for calculation of the discount rate even 16 || if that description tracks a legal standard. In addition, as a general matter, no expert will be 3 17 permitted to testify to matters not properly disclosed as required in advance of trial. At the 18 || hearing, the parties seemed to indicate that the District’s objections on this point as to Mr. Johnson 19 could be adequately addressed without a more specific decision on this motion, and if that is so, 20 || the Court will not order anything further on this point. 21 IT IS SO ORDERED. 22 Dated: June 26, 2021 23

25 VIRGINIA K. DEMARCHI United States Magistrate Judge 26 27 28 ’ Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).