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Larry Mciver v. Pacific Carmel Mountain Holdings

July 2, 2012

LARRY MCIVER,
PLAINTIFF,
v.
PACIFIC CARMEL MOUNTAIN HOLDINGS, LP, DEFENDANTS.



The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER GRANTING IN PART PLAINTIFF'S EX PARTE APPLICATION TO WITHDRAW DAMAGES CLAIMS;

ORDER SETTING BENCH TRIAL;

ORDER OVERRULING OBJECTIONS TO EXHIBITS; AND SUPPLEMENTAL ORDER ON MOTIONS IN LIMINE

On June 6, after holding a hearing on the parties' motions in limine, the Court issued a written order ruling on most of the motions, but reserving on several. With regard to two motions, the Court directed the parties to submit supplemental briefing: Plaintiff's Motion to Exclude or Prevent Defendants from Offering Irrelevant/Prejudicial Evidence ("Plaintiff's Motion," Docket no. 123), and Defendant Sears' Motion to Exclude Evidence or Testimony re Toilet Tissue Dispenser ("Sears' Motion," Docket no. 130). The parties were directed to file their supplemental briefing, by June 22.

Motion to Withdraw

On June 21, Plaintiff Larry McGiver filed an ex parte application to withdraw all claims for damages, leaving only claims for injunctive relief (the "Motion to Withdraw"). Defendants filed a response making clear they don't oppose the dismissal of McIver's claims for damages, but suggesting that sanctions might be in order. The motion to withdraw is therefore GRANTED to the extent McIver seeks to abandon his request for damages, and to abandon any claims for which damages are the only relief he sought. Defendants are not precluded from seeking sanctions or other relief based on McIver's prosecution or untimely abandonment of these claims.

Bench Trial

The only remaining claims for trial are claims for which injunctive relief is sought and available. Because the parties are not entitled to a jury trial on these issues, the entire case will therefore be tried to the Court, without a jury.

Objections to Exhibits

On June 27, McIver filed objections to certain of Costco's exhibits. Because this case will now be tried to the Court, no pretrial motions seeking admission or exclusion of evidence are necessary. The objections are therefore OVERRULED, without prejudice to McIver raising them later.

Plaintiff's Motion

McIver sought to exclude evidence of his litigation and settlement history, on the grounds that it was irrelevant and unfairly prejudicial. Defendants articulated several theories of relevance, however, including McIver's possibly faulty memory of which businesses had which barriers, as well as his good faith intent to purchase products or use the services at a particular business.

Defendants cite Reycraft v. Lee, 177 Cal. App. 4th 1211, 1224--25 (Cal. App. 4 Dist. 2009) and Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165, 1177 (9th Cir. 2010) for the principle that, in order to recover statutory damages under California law, a plaintiff must prove that he actually presented himself at the business on a particular occasion in order to purchase the business' products or use the services it offers to the public. In other words, Defendants' theory is that McIver may have entered Sears, Costco, and other businesses without the intent to buy anything there or use the services those businesses offer to the public. While this is no longer relevant to the extent McIver seeks damages for past violations, it may be relevant to the issue of injunctive relief. Before the Court can issue an injunction, it must find some reasonable likelihood McIver is being deterred from visiting Sears or Costco, and that injunctive relief will remedy that.

Although McIver was asked to address this issue by filing supplemental briefing, he never filed any. Any arguments McIver might have had in opposition to Defendants' briefing are ...


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