Zhang v. County of Monterey

• Court: District Court, N.D. California
• Decided: May 4, 2021
• Docket: 5:17-cv-00007
• Status: Unknown

Opinion

8 UNITED STATES DISTRICT COURT

9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11

12 JACQUELINE ZHANG, Case No. 17-CV-00007-LHK

13 Plaintiff, ORDER ON MOTIONS IN LIMINE 14 v. Re: Dkt. Nos. 105, 107, 108, 109

15 COUNTY OF MONTEREY, et al., 16 Defendants. 17 Before the Court are the motions in limine of Plaintiff Jacqueline Zhang (“Plaintiff”), ECF 18 No. 105, and the motions in limine of Defendants County of Monterey (“the County”), Monterey 19 County Resource Management Agency (“RMA”), and Monterey County Parks Department 20 (collectively, “Defendants”), ECF Nos. 107, 108, 109. After reviewing the parties’ briefing, the 21 case law, and the record in this case, and balancing the considerations set forth in Federal Rule of 22 Evidence 403, the Court rules as follows: 23

24 Plaintiff’s Motions in Limine (“MIL”) 25 Plaintiff’s MIL # 1: Plaintiff moves to exclude all testimony by Defendant’s witness Kimberly 26 Moore because Defendants did not identify Moore as a potential witness until after discovery 27 1 closed. ECF No. 105 at 1–3. Defendants oppose, ECF No. 114 at 2–5, and file a MIL, which seeks 2 to call Moore as a witness. See Defendant’s MIL # 1, infra. 3 RULING: GRANTED. Specifically, the Court rules as follows. 4 Defendants move to call Moore, who is the County’s Assistant Director of Human 5 Resources, to provide testimony regarding the County’s personnel policies and practices. ECF No. 6 107 at 2. Defendants acknowledge that Defendants also intend to call Irma Ramirez-Bough, the 7 County’s Director of Human Resources, to provide testimony regarding the County’s personnel 8 policies and practices. Id. However, Defendants contend that Moore, “who has worked in the 9 County’s human resources department for over 20 years will provide a more historical perspective 10 of the policies and practices that are at issue.” Id. 11 Defendants concede that Moore was not identified as a potential witness until after fact 12 discovery closed on January 19, 2018. Id. at 4. Defendants first identified Moore in a joint case 13 management statement filed on May 13, 2020, where the parties heavily disputed what fact and 14 expert discovery should be reopened. ECF No. 84. On May 14, 2020, this Court stated that “[n]o 15 discovery should be reopened” but stated that, if the parties insisted on reopening discovery, the 16 Court would only reopen discovery in full rather than in part. ECF No. 85. On May 15, 2020, the 17 parties filed a joint statement, where both parties agreed to forego additional discovery. ECF No. 18 86. On May 18, 2020, the Court declined to reopen discovery. ECF No. 87. 19 In sum, Defendants concede that Moore was not identified as a potential witness until after 20 fact discovery closed. ECF No. 107 at 4. “If a party fails to . . . identify a witness as required by 21 Rule 26(a) or (e), the party is not allowed to use that . . . witness . . . at a trial, unless the failure 22 was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). The Court addresses in turn: 23 (1) whether Defendants’ failure to timely identify Moore was substantially justified, and (2) 24 whether Defendants’ failure to timely identify Moore was harmless. 25 Defendants contend that their belated failure to identify Moore was substantially justified 26 because the need for Moore’s testimony did not arise until after the close of discovery. Id. at 3. 27 Defendants’ argument relates to the dispute between the parties regarding Plaintiff’s start date, 1 which Defendants contend was on October 5, 2015. Id. Defendants assert that, prior to the close of 2 discovery, Plaintiff contended that her start date was earlier than October 5, 2015 because Plaintiff 3 attended a Parks Commission meeting, reviewed the County’s budget, and visited a park before 4 October 5, 2015. ECF No. 114 at 3. Defendants contend that the dispute regarding Plaintiff’s start 5 date was about Plaintiff’s own conduct, not the County’s policies regarding start dates. Id. 6 According to Defendants, Plaintiff contended for the first time in Plaintiff’s Opposition to 7 Defendants’ Motion for Summary Judgment that Plaintiff’s first payroll period began before 8 October 5, 2015, which, under County policy meant that her start date was before October 5, 2015. 9 ECF No. 114 at 3. Thus, Defendants contend that Defendants did not know that Moore’s 10 testimony on County policies regarding start dates was needed until after the close of discovery. 11 The Court is not persuaded. In Plaintiff’s deposition on November 10, 2017, more than two 12 months prior to the close of discovery, counsel for Defendants asked Plaintiff whether Plaintiff 13 needed to start at the beginning of a pay period. See ECF No. 111 Exh. H at 44 (Plaintiff’s 14 deposition) (“[Q:] They needed you to start at the beginning of a pay period? [A:] Yes. [Q:] And 15 the beginning of a pay period is October 5th, 2015? [A:] Yes”); see also id. at 42 (“Either I have to 16 start two weeks earlier to fall into the pay period, if not, I have to wait for another two weeks to 17 start the next pay period”). Plaintiff originally testified that the pay period began on October 5, 18 2015, the date that Defendants claim Plaintiff started. Id. However, in an errata to the deposition, 19 Plaintiff corrected her testimony to state that the pay period began on October 3, 2015. See ECF 20 No. 111 Exh. I. This deposition suggests that Defendants were on notice that the start of Plaintiff’s 21 first pay period could have significance in determining Plaintiff’s start date. Accordingly, the 22 Court concludes that Defendants’ belated identification of Moore was not substantially justified. 23 As to prejudice resulting from Defendants’ belated identification of Moore, Defendants 24 contend that Plaintiff was given the opportunity to depose Moore following Defendants’ belated 25 identification of Moore. ECF No. 114 at 4. However, fact discovery closed on January 19, 2018. 26 ECF No. 87. Therefore, Plaintiff has been deprived of the opportunity to conduct discovery related 27 to Moore. Courts have held that depriving a party of the opportunity to conduct discovery or 1 depose untimely-disclosed witnesses demonstrates harm. See, e.g., Miranda v. U.S. Sec. Assoc., 2 2019 WL 2929966, at *6 (N.D. Cal. July 8, 2019) (concluding that the defendant had 3 demonstrated prejudice because the defendant “has been deprived of the opportunity to conduct 4 discovery related to [the late identified witnesses] or take their depositions”); La Loma Grande 5 LLC v. United States Dep’t of Homeland Security, 2015 WL 11163636, at *1 (D. Ariz. Aug. 3, 6 2015) (“La Loma’s failure to disclose the witnesses in a timely manner is not harmless: if the 7 United States had known that La Loma intended to call Ms. Ziegler and Ms. Hoskin as witnesses, 8 the United States could have deposed the individuals or otherwise explored the contours of their 9 expected testimony during discovery.”). Because Defendants’ belated identification of Moore was 10 neither substantially justified nor harmless, the Court excludes Moore as a witness. See Fed. R. 11 Civ. P. 37(c)(1). Accordingly, the Court GRANTS Plaintiff’s MIL # 1. 12 13 Plaintiff’s MIL # 2: Plaintiff moves to exclude evidence regarding the County’s justification for 14 Plaintiff’s termination. ECF No. 105 at 4–5. Defendants oppose. ECF No. 114 at 5–6. 15 RULING: DENIED. Specifically, the Court rules as follows. 16 Plaintiff moves to exclude evidence regarding the County’s justification for Plaintiff’s 17 termination. ECF No. 105 at 4–5. Plaintiff contends that the question for the jury in the instant 18 case is whether Plaintiff received due process, not whether Plaintiff’s termination was justified. Id. 19 Accordingly, Plaintiff asserts that evidence regarding the County’s justification for Plaintiff’s 20 termination is irrelevant and would confuse the jury. Id. 21 Defendants contend that “the County’s evidence describing Plaintiff’s job performance and 22 unprofessional communications is inextricably intertwined with Plaintiff’s allegation that she was 23 terminated without due process, and as such, is necessary to provide appropriate context and 24 coherence for the County’s factual narrative regarding the series of events leading to Plaintiff’s 25 termination.” ECF No. 114 at 5. 26 Irrelevant evidence is inadmissible. Fed. R. Evid. 402. Under Federal Rule of Evidence 27 401, evidence is relevant if “(a) it has any tendency to make a fact more or less probable than it 1 would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed. 2 R. Evid. 401. In the instant case, three of Plaintiffs’ claims remain to be decided: (1) denial of a 3 property interest without due process in violation of the Fourteenth Amendment of the United 4 States Constitution; (2) denial of a property interest without due process in violation of the 5 California Constitution; and (3) writ of mandate under California Code of Civil Procedure § 1085. 6 See Zhang v. County of Monterey, 804 F. App’x 454, 456–58 (9th Cir. 2020) (remanding for 7 consideration of Plaintiff’s claim that she was deprived of a property interest without due process 8 and Plaintiff’s claim under California Code of Civil Procedure § 1085). 9 Plaintiff’s “due process claim hinges on proof of two elements: (1) a protectible liberty or 10 property interest . . .; and (2) a denial of adequate procedural protections.” Foss v. National 11 Marine Fisheries Service, 161 F.3d 584, 588 (citing Bd. of Regents v. Roth, 408 U.S. 564, 569–71 12 (1972)). As to whether Plaintiff had a protected property interest in her employment, “a 13 ‘permanent employee,’ dismissible only for cause, has a property interest in [her] continued 14 employment which is protected by due process,” but “a probationary (or nontenured) civil service 15 employee, at least ordinarily, may be dismissed without a hearing or judicially cognizable good 16 cause.” Dorr v. Butte County, 795 F.2d 875, 876 (9th Cir. 1986) (citations omitted). 17 In the instant case, evidence regarding the justification for Plaintiff’s termination is 18 relevant to Plaintiff’s remaining claims for at least three reasons. First, Plaintiff contends that 19 Plaintiff passed her probationary period and was thus a permanent employee dismissible only for 20 cause. See ECF No. 106 at 8. Defendants’ evidence of Plaintiff’s job performance is relevant to 21 rebut Plaintiff’s contention that Plaintiff successfully passed her probationary period and became a 22 permanent employee. For instance, Plaintiff contends that Plaintiff had a reasonable expectation 23 that Plaintiff passed her probationary period following Plaintiff’s performance appraisal on July 24 15, 2016. Id. Defendants’ evidence regarding Plaintiff’s job performance is relevant to rebut 25 Plaintiff’s contention regarding Plaintiff’s July 15, 2016 performance appraisal. 26 Second, if Plaintiff were a permanent employee, Plaintiff would be dismissible only for 27 cause. See Dorr, 795 F.2d at 876 (citations omitted) (stating that, ordinarily, a permanent 1 employee is dismissible only for cause); accord Zhang, 804 F. App’x at 456 (“If Zhang became a 2 permanent employee before the County terminated her, it is undisputed that under County policy, 3 she could be terminated only for cause, and she was entitled to five days’ written notice and an 4 opportunity to challenge the County’s decision at a hearing.”). Defendants’ evidence of Plaintiff’s 5 job performance is relevant to whether Defendants had cause to terminate Plaintiff’s employment. 6 Third, Plaintiff contends that Shawn Ellerbee, Plaintiff’s former supervisor, and John 7 Guertin, the Interim Deputy Director of Land Use and Community Development at the time, 8 terminated Plaintiff’s employment without due process because Plaintiff participated in 9 investigations into RMA. See ECF No. 113. Defendants dispute Plaintiff’s contention and 10 contends that Plaintiff was terminated because of Plaintiff’s job performance. ECF No. 109. As 11 explained below, the Court concludes that Plaintiff can present evidence on investigations into 12 RMA. See Defendants’ MIL # 3, infra. If Plaintiff can present evidence regarding Ellerbee and 13 Guertin’s alleged motives to terminate Plaintiff without due process, Defendants must be able to 14 present evidence to rebut Plaintiff’s evidence. Accordingly, the Court DENIES Plaintiff’s MIL # 15 2. 16 17 Plaintiff’s MIL # 3: Plaintiff moves to exclude evidence regarding Plaintiff’s job performance, 18 qualifications, experience, and communication style, and the events leading up to Plaintiff’s 19 termination because Plaintiff contends that this evidence is cumulative. ECF No. 105 at 5–6. 20 Defendants oppose. ECF No. 114 at 6–7. 21 RULING: DENIED WITHOUT PREJUDICE. Specifically, the Court rules as follows. 22 Plaintiff contends that Defendants intend to present at least 13 witnesses to testify 23 regarding Plaintiff’s job performance, qualifications, experience and communication style, and the 24 events leading up to Plaintiff’s termination. ECF No. 105 at 5–6. Plaintiff contends that these 25 witnesses’ testimony will be cumulative. Id. Plaintiff asserts that the testimony of 2 witnesses, 26 Ellerbee and Mariscal, both of whom were formerly Plaintiff’s supervisors, is sufficient on this 27 topic. Id. at 6. 1 Defendants contend that Plaintiff provides “zero evidentiary support” for the argument that 2 Defendants’ witnesses will provide cumulative testimony because Plaintiff has not deposed 3 Defendants’ witnesses on these topics. ECF No. 114 at 6. Defendants further state that Defendants 4 do not intend to present cumulative testimony. Id. 5 Federal Rule of Evidence 403 allows the Court to exclude relevant evidence if its probative 6 value is “substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, 7 misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” 8 Fed. R. Evid. 403. Federal Rule of Evidence “403’s cumulative evidence provision does not 9 prohibit the introduction of cumulative evidence; rather, it merely permits courts to exclude 10 cumulative evidence when it has little incremental value.” United States v. Miguel, 87 F. App’x 11 67, 68 (9th Cir. 2004). Under Federal Rule of Evidence 403, a district court can exclude evidence 12 that is “needlessly cumulative and a waste of time.” United States v. Shayota, 784 F. App’x 986, 13 990 (9th Cir. 2019). 14 In the instant case, Plaintiff contends that Defendants intend to introduce cumulative 15 evidence regarding the justification for Plaintiff’s termination. ECF No. 105 at 5–6. However, 16 Plaintiff has not deposed Defendants’ witnesses on these topics. ECF No. 114 at 6. Moreover, 17 Defendants state that Defendants do not intend to present cumulative testimony. Id. Accordingly, 18 Plaintiff has failed to provide a sufficient record for the Court to determine whether Defendants’ 19 testimony is cumulative. Thus, the Court DENIES WITHOUT PREJUDICE Plaintiff’s MIL # 3. 20 See Yowan Yang v. ActioNet, Inc., 2016 WL 8929250, at *2 (C.D. Cal. Feb. 19, 2016) (“[T]o 21 exclude evidence on a motion in limine the evidence must be inadmissible on all potential 22 grounds. Unless evidence meets this high standard, evidentiary rulings should be deferred until 23 trial so that questions of foundation, relevancy, and potential prejudice may be resolved in proper 24 context.”) (quotation omitted). Plaintiff can make specific objections to evidence Plaintiff 25 considers cumulative during the trial. Moreover, the Court notes that, in addition to the limitations 26 imposed by the Federal Rules of Evidence, the Court will impose and enforce time limits during 27 trial. 1 Defendants’ Motions in Limine (“MIL”) 2

3 Defendants’ MIL # 1: Defendants move to call Moore as a witness. ECF No. 107. Plaintiff 4 opposes, ECF No. 111, and files a MIL to exclude Moore’s testimony. See Plaintiff’s MIL # 1, 5 supra. 6 RULING: DENIED. As explained above, the Court GRANTS Plaintiff’s MIL # 1 and excludes 7 Moore as a witness because Moore was not timely identified and Defendants’ untimely 8 identification was neither substantially justified nor harmless. See Plaintiff’s MIL # 1, supra. 9 10 Defendants’ MIL # 2: Defendants move to preclude Plaintiff from introducing evidence 11 concerning Plaintiff’s claims or remedies related to claims that were dismissed on appeal. ECF 12 No. 108. Plaintiff opposes. ECF No. 112. 13 RULING: DENIED WITHOUT PREJUDICE. Specifically, the Court rules as follows. 14 Defendant contends that the Court should exclude evidence concerning Plaintiff’s claims 15 or remedies related to claims that were dismissed on appeal. ECF No. 108. Plaintiff contends that 16 most of the facts and evidence concerning Plaintiff’s employment are equally relevant to the 17 remaining claims. ECF No. 112. 18 Irrelevant evidence is inadmissible. Fed. R. Evid. 402. Under Federal Rule of Evidence 19 401, evidence is relevant if “(a) it has any tendency to make a fact more or less probable than it 20 would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed. 21 R. Evid. 401. Moreover, the Court can exclude relevant evidence under Federal Rule of Evidence 22 403 “if its probative value is substantially outweighed by a danger of one or more of the 23 following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, 24 or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. 25 Generally, evidence of dismissed claims is no longer relevant and can be excluded. See, 26 e.g., Ng v. Snow, 2008 WL 5459167, at *1 (C.D. Cal. Aug. 18, 2008) (granting motion in limine 27 to exclude evidence about incidents on which the court had already granted summary judgment). 1 However, evidence of dismissed claims can be admitted if relevant for a limited purpose. See 2 Yang, 2016 WL 8929250, at *10 (denying motion in limine to exclude all evidence relating to 3 dismissed employment claim based on race because “[w]hile neither party can present evidence 4 relating to dismissed claims, in this case or any other, the Court will not sustain any objection to 5 evidence that is relevant to the claims at trial”); Brown v. Kavanaugh, 2013 WL 1819796, at *2 6 (E.D. Cal. Apr. 30, 2013) (granting in part and denying in part motion in limine to exclude 7 evidence about dismissed claims because “[m]atters pled and dismissed in this case are not 8 relevant to Plaintiff’s remaining claims” but in a retaliation action, “Plaintiff must be permitted to 9 explain for what the defendants were retaliating against”). 10 In the instant case, judgment has already been entered for the County on five of Plaintiff’s 11 claims: (1) discrimination on the basis of race and national origin in violation of Title VII; (2) 12 discrimination on the basis of race, national origin, and marital status in violation of FEHA; (3) 13 discrimination on the basis of race in violation of 42 U.S.C. § 1981; (4) deprivation of a liberty 14 interest without due process of law in violation of the Fourteenth Amendment of the United States 15 Constitution; and (5) writ of mandate under California Code of Civil Procedure § 1094.5. See 16 Zhang, 804 F. App’x at 456–58 (affirming grant of summary judgment to Defendants on five 17 claims). 18 The jury will decide the following three remaining claims at trial: (1) denial of a property 19 interest without due process in violation of the Fourteenth Amendment of the United States 20 Constitution; (2) denial of a property interest without due process in violation of the California 21 Constitution; and (3) writ of mandate under California Code of Civil Procedure § 1085. Id. 22 The Court cannot issue a blanket ruling on this evidence. Instead, Defendants should object 23 at trial to specific evidence relating to Plaintiff’s dismissed claims. Accordingly, the Court 24 DENIES WITHOUT PREJUDICE Defendants’ MIL # 2. See BBC Grp. NV LLC v. Island Life 25 Restaurant Grp. LLC, 2020 WL 70523, at *2 (W.D. Wash. Jan. 7, 2020) (deferring ruling on 26 motion in limine because “until actual evidence is offered, it is difficult for the Court to determine 27 what evidence would solely support BBC’s dismissed claims without relevance to its defenses,” 1 which remained in controversy). Moreover, to the extent that evidence relating to Plaintiff’s 2 dismissed claims is offered, the Court will provide a limiting instruction instructing the jury that 3 Defendants prevailed on Plaintiff’s dismissed claims and the jury is not to consider Plaintiff’s 4 dismissed claims. See Fed. R. Evid. 105. 5 6 Defendants’ MIL # 3: Defendants move to preclude Plaintiff from introducing evidence relating to 7 investigations into alleged financial mismanagement at RMA. ECF No. 109. Plaintiff opposes. 8 ECF No. 113. 9 RULING: DENIED. Specifically, the Court rules as follows. 10 Defendants move to preclude Plaintiff from introducing evidence relating to investigations 11 into alleged financial mismanagement at RMA. ECF No. 109. Plaintiff opposes and contends that 12 the investigations are relevant. ECF No. 113. 13 Irrelevant evidence is inadmissible. Fed. R. Evid. 402. Under Federal Rule of Evidence 14 401, evidence is relevant if “(a) it has any tendency to make a fact more or less probable than it 15 would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed. 16 R. Evid. 401. Moreover, the Court can exclude relevant evidence under Federal Rule of Evidence 17 403 “if its probative value is substantially outweighed by a danger of one or more of the 18 following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, 19 or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. 20 In the instant case, Defendants contend that evidence relating to investigations into the 21 RMA is irrelevant. ECF No. 109. Plaintiff contends that the investigations are relevant because 22 Plaintiff’s involvement in the investigations led to the termination of her employment without due 23 process. ECF No. 113. According to Defendants, Plaintiff’s evidence is irrelevant, speculative, 24 and meritless. ECF No. 109. 25 The Court disagrees. Plaintiff’s evidence is relevant for at least two reasons. First, Plaintiff 26 contends that Plaintiff’s involvement in the investigations motivated Ellerbee and Guertin to 27 terminate her employment without due process of law. Specifically, Plaintiff contends that: (1) 1 around the time of Plaintiffs termination, Plaintiff was participating in the investigations directed 2 || by her husband, Gary Giboney, the Chief Deputy Auditor Controller at the time, against the orders 3 of Ellerbee, Plaintiff's supervisor at the time; (2) two of the subjects of the investigations were 4 || Ellerbee, who terminated Plaintiff's employment, and Guertin, the Interim Deputy Director of 5 || Land Use and Community Development at the time, who reviewed Plaintiff's termination; and (3) 6 || Ellerbee and Guertin were motivated to terminate Plaintiff's employment without due process 7 || because of Plaintiffs participation in the investigations. ECF No. 113; see also Giboney Decl. □ 8 || 22 (stating that Plaintiff's employment was terminated because of the investigations into RMA). 9 Second, Plaintiff's contention that Plaintiff was terminated for her participation in the 10 || investigations into RMA is relevant because it rebuts Defendants’ contention that Plaintiff was 11 terminated for Plaintiff's job performance. As explained above, evidence regarding Plaintiffs job 12 performance is relevant for several reasons. See Plaintiff’s MIL # 2, supra. Thus, Plaintiff is 13 permitted to introduce evidence regarding the investigations into RMA for the relevant purposes 14 outlined above. Accordingly, the Court DENIES Defendants’ MIL # 3. 3 15 || ITISSO ORDERED.

|| Dated: May 4, 2021 18 funy K : Koh LUCY ¥. KOH 19 United States District Judge 20 21 22 23 24 25 26 27 28 11 Case No. 17-CV-00007-LHK