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Zhivka Valiavicharska v. Mitch Celaya

January 24, 2012


The opinion of the court was delivered by: Jacqueline Scott Corley United States Magistrate Judge


The Court held a pretrial conference in this case on January 19, 2012 and ruled as is set 19 forth below.


A.Plaintiff's Motions in Limine

1. Plaintiff's first motion in limine moves to exclude inquiry into Plaintiff's political views. This motion is uncontested by Defendant and GRANTED.

2. Plaintiff's second, third, and fourth motions in limine involve testimony by 25 Defendant's police practices expert witness, which is addressed separately below.

3. Plaintiff's fifth and final motion in limine moves to exclude evidence that other 27 police officers were attacked or injured by protestors on the day in question. Only evidence regarding what Officer Tinney saw or knew at the time of the incident is relevant to determining the reasonableness of his actions. To the extent Defendant seeks to introduce evidence of violence toward the police outside the scope of Tinney's knowledge at the time of the incident in question, Plaintiff's motion is GRANTED.

1. Defendant's first motion in limine has two parts:

multiple investigations conducted, and reports issued, by the University of California and other entities about the incident in question. All investigation subsequent to the incident, as well as any disciplinary action that was or was not taken, is irrelevant to the remaining cause of action in this case and therefore inadmissible.

This motion is GRANTED with the caveat that Plaintiff may briefly recite that she made a complaint about Officer Tinney, but no other details may be offered.

b. Second, Defendant moves to exclude any reference to an unrelated 2009 complaint filed against Officer Tinney. This motion is GRANTED.

2. Defendant's second motion in limine involves testimony by Plaintiff's police

3. Defendant's third motion in limine has three parts: 20 the officers' clothing as "riot gear." The distinction between a baton and club is one of nomenclature; a witness unfamiliar with police equipment may not appreciate the distinction, and the Court will not prohibit Plaintiff from referring to a "club." "Riot gear" is a more specialized term, and the parties will have the opportunity to question police officer witnesses about their gear on the day in question. If the evidence, however, does not support an inference that the police donned "riot gear"-and the record before the Court to date suggests it will not- Plaintiff may not refer to what the police wore as "riot gear."

Defendant further

B.Defendant's Motions in Limine

a. First, Defendant moves to preclude evidence, testimony or argument regarding the practices expert witness and is addressed in a separate section below.

a. First, Defendant moves to preclude reference to a police baton as a "club" and to requests that Plaintiff be prohibited from referring to the incident as an "atrocity" or the police response as "excessive." Counsel shall refrain from argument until closing argument and, even then, will be bound by facts in evidence and legally proper argument that stems from such evidence.

b. Second, Defendant moves to preclude any reference, except during voir dire, to any other incidents of police brutality and police clashes with protestors, such as the November 18, 2011 incident at UC Davis or the broader Occupy protests occurring around the nation. This motion is GRANTED.

c. Third, Defendant moves to preclude reference to Defendant's indemnification in the event of a guilty verdict. Plaintiff agrees that such reference would be improper, and this motion is therefore not disputed and is GRANTED.

4. Defendant's fourth and final motion in limine has two parts:

a. First, Defendant moves to preclude reference to the medical report of Warren Strudwick, who was not disclosed as an expert witness pursuant to Federal Rule of Civil Procedure 26. Defendant's motion is GRANTED. Plaintiff states that she does not intend to offer the report, but that her disclosed expert medical witness has reviewed and perhaps relied upon this report. As noted below, expert witnesses may rely on otherwise inadmissible hearsay to form their opinions but may not convey the underlying hearsay to the jury. In a related issue, Defendant orally informed the Court that Plaintiff now seeks to admit new medical evidence from examinations conducted on Plaintiff after the close of discovery. Evidence of, or reference to, any medical evidence not disclosed before the end of discovery will not be permitted.

b. Second, Defendant moves for an offer of proof by Plaintiff as to the actual amount paid by her insurance provider pursuant to Howell v. Hamilton Meats & Provisions, 52 Cal. 4th 541 (Cal. 2011). At the pretrial conference, Plaintiff dismissed the state-law battery claim in this action, and only the federal claim remains. Defendant requested the opportunity to submit a letter brief on this issue, which shall be filed by January 24, 2012. Plaintiff shall submit any response by January 27, 2012.


5 exclude certain of the opposing party's police expert's proposed testimony. In response to the 6 parties' motions in limine, the Court provides some guidance on the proper scope of expert 7 testimony given the particular facts of this case. 8 9 trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an 10 expert by knowledge, skill, experience, training, or education may testify thereto in the form 11 of an opinion or otherwise." U.S. v. Garcia, 7 F.3d 885, 889 (9th Cir. 1993). Courts have a 12 reliable." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999) (internal quotation marks 14 omitted). Expert testimony is only admissible to the extent it "address[es] an issue beyond the 15 common knowledge of the average layman." Mukhtar v. California State University, 16 1008, 1019 (9th Cir.), amended by 246 F.3d 1150 (9th Cir. 2001)). Expert opinion is 18 therefore improper when it ventures into issues "the jury is well equipped to determine 19 intelligently and to the best possible degree . . . without enlightenment from those having a 20 specialized understanding of the subject involved in the dispute." Fortune Dynamic, Inc. v. 21 (internal quotations and citation omitted). 23

24 determinations reserved for the trier of fact." Engman v. City of Ontario, 2011 WL 2463178 at 25 *8 (C.D. Cal. June 20, 2011). To the extent the evidence is otherwise admissible, "expert 26 testimony concerning an ultimate issue is not per se improper," but "an expert witness cannot 27 give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law." 28 Mukhtar v. California State University, Hayward, 299 F.3d 1053, 1065 n.10 (9th Cir. 2002) Both sides intend to call police practices expert witnesses. Each side has moved to

In instances where "scientific, technical, or other specialized knowledge will assist the

"basic gatekeeping obligation" to ensure that all expert testimony "is not only relevant, but

Hayward, 299 F.3d 1053, 1065 n.9 (9th Cir. 2002) (quoting United States v. Vallejo, 237 F.3d 17

Victoria's Secret Stores Brand Management, Inc., 618 F.3d 1025, 1040-41 (9th Cir. 2010) 22

An expert may not provide "impermissible legal conclusions or make credibility (citing United States v. Duncan, 42 F.3d 97, 101 (2d Cir. 1994) that if "an expert undertakes 2 to tell the jury what result to reach, this does not aid the jury in making a decision, but rather 3 attempts to substitute the expert's judgment for the jury's") (emphasis in original); see also 4

Anderson v. Suiters, 499 F.3d 1228, 1273 (10th Cir. 2007) (clarifying that "while expert 5 witnesses may testify as to the ultimate matter at issue . . . this refers to testimony on ultimate 6 facts; testimony on ultimate questions of law, i.e., legal opinions or conclusions, is not 7 favored"); PixArt Imaging, Inc. v Avagao Tech. Gen. IP, 2011 WL 5417090 at *6 (N.D. Cal. 8 Oct. 27, ...

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