The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
NOTICE AND ORDER RE: TENTATIVE RULINGS ON DEFENDANT'S PRETRIAL MOTIONS AND MOTIONS IN [Doc. Nos. 129-131; 133-141]
Currently pending before the Court, and set for hearing on Monday, February 28, 2011, are Defendant City of San Diego's Motion to Exclude Testimony of James Lackritz, Ph.D.; Motion to Bifurcate Claims; Motion to Modify Interlocutory Order Precluding Defense Expert; and nine motions in limine. [Doc. Nos. 129-131; 133-141.] Having considered the parties' submissions, and in anticipation of Monday's hearing, the Court issues the following tentative rulings:
As an initial matter, the Court tentatively GRANTS Plaintiff's request for judicial notice of the six exhibits offered in support of her responses to Defendant's motions. [Doc. No. 156.] Each exhibit is an order issued by this Court or the Ninth Circuit, and are matters which are properly subject to judicial notice. See e.g., Spainhower v. U.S. Bank Nat. Ass'n, 2010 WL 1408105 *2 (C.D.Cal. Mar. 25, 2010). The Court tentatively SUSTAINS Plaintiff's objection to paragraph 2 of Katherine Jackson's Declaration on ground that it lacks foundation. FED. R. EVID. 602. The Court tentatively OVERRULES Plaintiff's objection on ground of hearsay to paragraph 4 of Katherine Jackson's Declaration. [Doc. No. 173.]
(A) The Court tentatively DENIES Defendant's Daubert motion to exclude the testimony of James Lackritz. [Doc. No. 129.] Among other reasons, Defendant's argument that Lackritz draws conclusions outside his area of expertise, is essentially an argument that Lackritz's opinion lacks foundation. [See Doc. No. 129-1, p.7, arguing Lackritz's O/C ratings have an "absence of a foundation."] The Court however, has already considered and overruled Defendant's objection to Lackritz's opinion for lack of foundation. [Doc. No. 94, p.5, overruling Def.'s objections because "it does not lack foundation."] In addition, Defendant's objections are largely directed at the weight, rather than the admissibility, of Lackritz's testimony. "Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993). The Court finds Lackritz's data is tentatively admissible and relevant under Federal Rule of Evidence 702 and Daubert to Plaintiff's disparate treatment claims.*fn1 See Obrey v. Johnson, 400 F.3d 691, 694 (9th Cir. 2005); [Doc. No. 121, p.5].
(B) In light of the Court's tentative decision finding Plaintiff's disparate impact claims have been rendered moot (see infra, p. 3, para. (1)), the Court tentatively DENIES AS MOOT Defendant's motion to bifurcate Plaintiff's disparate impact claims from her disparate treatment and retaliation claims. [Doc. No. 130.]
(C) The Court tentatively DENIES Defendant's motion to modify the Court's April 21, 2008 interlocutory order precluding defense expert Paul Zimmer. [Doc. No. 131.] Although Defendant's motion is an untimely motion for reconsideration, the Court has the power to modify its interlocutory orders. See City of Los Angeles, Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 885-87 (9th Cir. 2001). The Court considered and tentatively concludes, under the factors set forth in Amarel v. Connell, that modification of the Court's April 21, 2008 Order is not warranted. 102 F.3d 1494, 1515 (9th Cir. 1996).
With respect to Defendant's motions in limine:
(1) The Court tentatively GRANTS IN PART and DENIES IN PART Defendant's motion to preclude Plaintiff from presenting evidence in support of claims based on a theory of disparate impact. [Doc. No. 133.] A finding of standing, by itself, is insufficient to confer federal jurisdiction. "To qualify as a case fit for federal-court adjudication, an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed." Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) (citing to Preiser v. Newkirk, 422 U.S. 395, 401 (1975) (additional citations omitted). "The requisite personal interest that must exist at the commencement of litigation (standing) must continue throughout its existence (mootness)." United States Parole Comm'n v. Geraghty, 445 U.S. 388, 397 (1980) (internal quotation and citation omitted). Here, the Court tentatively GRANTS Defendant's motion insofar as Defendant seeks to prevent Plaintiff from presenting evidence supporting a disparate impact theory. The Court tentatively DENIES Defendant's motion to the extent the motion challenges standing, as the Court finds that while Plaintiff had standing to bring the claim, the claim has been rendered moot.
(2) The Court tentatively DENIES Defendant's motion to preclude "me too evidence." [Doc. No. 134.] Plaintiff's offering of "anecdotal evidence" is not irrelevant nor prejudicial under Federal Rules of Evidence 401 and 403 because the evidence concerns other employees who claimed their employer discriminated against them, and such anecdotal evidence may be permissible to show a pattern or practice under a disparate treatment claim. Obrey v. Johnson, 400 F.3d 691, 698 (9th Cir. 2005).
(3) The Court tentatively DENIES Defendant's motion to "Preclude Plaintiff from presenting evidence related to claims she has not raised or for which she herself has not been injured." [Doc. No. 135.] Although not clear, the record suggests Plaintiff did not file an offer of proof for the evidence she intends to offer in support of her pattern and practice theory because the deadline to file the proof was vacated. [Doc. No. 68 ("Plaintiff shall serve . . . an offer of proof no later than the date required for filing the amended proposed pretrial order . . . ."); Doc. No. 88 (case transferred; pretrial dates vacated).] The Court recognizes that some of the evidence Plaintiff intends to offer in support of her pattern and practice theory is the subject of other limine motions, namely the testimony of Lentz, Alizzawi, Snow-Creagan, and Darling. To the extent Plaintiff intends to present additional evidence in support of her pattern and practice theory, the Court is inclined to order Plaintiff to serve an offer of proof no later than the date required for filing the amended proposed pretrial order--not less than 14 days prior to Pretrial Conference, which is currently set for April 4, 2011. If the Court so orders, then Defendant may file objections to the relevance of such evidence.
(4) The Court tentatively GRANTS Defendant's motion to preclude Plaintiff from presenting misleading and slanderous remarks about certain witnesses. [Doc. No. 136.] In particular, the Court tentatively concludes that statements or remarks suggesting an inference that Jackson has, through her prior work at a strip club, demonstrated tolerance and participated in a systematic pattern of discrimination, are misleading and may create confusion of the issues. FED. R. EVID. 403.
(5) The Court tentatively GRANTS IN PART and DENIES IN PART Defendant's motion to preclude evidence of a judgment in the Lentz lawsuit and Lentz's testimony. [Doc. No. 137.] The motion is tentatively GRANTED insofar as Plaintiff should be precluded from presenting or offering evidence of the Judgment entered in Alissa Lentz v. City of San Diego, in accordance with Federal Rule of Evidence 408. The motion is tentatively DENIED insofar as Plaintiff seeks to offer evidence of Lentz's observations based on personal knowledge of her experiences in seeking training opportunities, and her statement regarding working and being paid overtime during the summer of 2007. FED. R. EVID. 402; see Obrey v. Johnson, 400 F.3d at 698; E.E.O.C. v. Farmer Bros. Co., 31 F.3d 891, 897-98 (9th Cir. 1994) ("Because hostility against women underlies decisions to discharge or to refuse to hire women because of their gender, evidence of sexual harassment often will be relevant to claims of gender-based employment discrimination.").
(6) The Court tentatively GRANTS IN PART and DENIES IN PART Defendant's motion to preclude evidence from or concerning Sumaiyah Alazzawi or her lawsuit. [Doc. No. 138.] The motion is tentatively GRANTED to the extent it seeks to preclude evidence of the Alazzawi's lawsuit in Sumaiyah Alazzawi v. City of San Diego, Superior Court Case No. GIC858179, and corresponding settlement. The motion is tentatively DENIED to the extent it seeks to preclude evidence of Alazzawi's personal knowledge and experience regarding the instances of sexual harassment and retaliation she claims to have experienced. FED. R. EVID. 402; see Obrey v. Johnson, 400 F.3d at 698.
(7) The Court tentatively GRANTS Defendant's motion to preclude evidence concerning the Alazzawi settlement agreement term wherein Defendant agreed to "institute mandatory annual training for all lifeguards to reinforce policies prohibiting retaliation, with the training to be conducted by an ...