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Galvan v. City of Los Angeles

United States District Court, C.D. California

August 1, 2016

ROY GALVAN
v.
CITY OF LOS ANGELES, ET AL.

          Present: The Honorable CHRISTINA A. SNYDER JUDGE

          MOTIONS IN LIMINE (FILED 06/20/2016)[69][71][73][75][77] [79][81][86][87][88][89]

          Honorable CHRISTINA A. SNYDER JUDGE

         I. INTRODUCTION & BACKGROUND

         On March 3, 2011, Roy Galvan was charged with the shooting murder of Joey Gutierrez. Following a 2012 jury trial, Galvan was acquitted of all charges. On January 22, 2014, Galvan filed the instant suit against the City of Los Angeles, Los Angeles Police Department (“LAPD”) Officer David Nunn, LAPD Detective Miguel Terrazas, Richard Arciniega, and various fictitious defendants, alleging numerous civil rights violations pursuant to 42 U.S.C. § 1983.[1] Among other things, plaintiff alleges in the operative complaint that defendants lacked probable cause for his arrest, and that defendants fabricated and failed to disclose key pieces of evidence, leading to his wrongful arrest and malicious prosecution.

         A. Factual Background

         This action stems from the investigation of the shooting murder of Joey Gutierrez, which occurred on January 28, 2011, at the intersection of 43rd Street and Main Street in the City of Los Angeles. Gutierrez was a member of the Hang Out Boys (“HOBs”) street gang. Detective Terrazas and Officer Nunn were assigned by LAPD to the murder investigation. Terrazas interrogated more than thirty murder suspects, and Nunn interviewed approximately fifty murder suspects. Many of the factual disputes in this case arise from several interviews that Terrazas and Nunn conducted.

         First, on February 8, 2011, Terrazas interviewed eyewitness Ernesto Jurado, who could not identify the murder suspect but provided a general description of an individual who fled the scene of the shooting. Jurado further stated at least thirteen times over the course of the interview that the shooter “ran” after firing the gunshots. Months before the murder, on December 20, 2010, plaintiff Galvan had suffered an injury to his right ankle, which left him with a severed and detached Achilles tendon and an open fracture to his heel bone, and which required extensive surgical intervention to repair. Galvan was unable to bear weight on that heel for more than five months. As is particularly relevant here, LAPD’s “Murder Book Chronology” for the Gutierrez investigation contains the following entry:

On February 14, 2011, Witness Jurado phoned Terrazas and stated that he had forgotten to mention that when suspect-1 had run from the location after the shooting [sic] had a very noticeable limp when he ran eastbound. Jurado said it appeared the suspect had possibly been shot in the leg during the altercation.

         The entry is listed as an edit to the February 8, 2011 chronological entry regarding Jurado’s initial interview, and not as a separate entry in the chronological record; as such, it is not apparent from the record when the entry was made. Galvan argues this entry was fabricated, citing to Jurado’s phone subscriber records, which do not indicate that any phone calls were made to or from Terrazas on February 14th. Defendants concede that no phone call took place on February 14th, but contest plaintiff’s assertion that the entry was fabricated, insisting instead that the record reflects that a phone call that took place on February 13th, 2011.

         Second, Terrazas interviewed Joel Cifuentes, who was not present at the time of the murder but related information he had heard from another individual, Robert Flores. The Statement Form documenting the Cifuentes interview states that Flores told Cifuentes that one of the suspects who fired a gun at Gutierrez was a gang member named “Insane” and had been shot in the foot. Plaintiff Galvan contends that the portion of the Statement Form that refers to “Insane” was fabricated, as this moniker does not appear in the interview transcript, nor does it appear in Terrazas’s handwritten notes taken at the interview.

         Third, on February 28, 2011, Mark Loving was interviewed. At the time of the interview, Loving lived with his girlfriend, Syrella Carpenter, in an alley three doors down from Galvan. Loving was first approached by Nunn, Terrazas, and two other LAPD detectives in the alley about a week after Gutierrez was killed, but Loving did not provide the officers with any information at that time. Over the course of the next few weeks, Loving was handcuffed and thrown against a fence, taken to the station for questioning three times, and again handcuffed and thrown against a fence. Ultimately, Loving agreed to have his statement taken on February 28, 2011. During a recorded interview, Loving stated that Galvan admitted that Gutierrez had shot him in the foot on a prior occasion and that Galvan had shot and killed Gutierrez in retaliation for shooting him. Loving selected Galvan’s photograph from a six-pack of photographs. The recorded statement and reports relating to Loving’s statement were turned over to the prosecution.

         On March 3, 2011, plaintiff Galvan was arrested. At the time, he could only ambulate with crutches and could only hop without them. On March 8, 2011, Terrazas and Nunn interviewed Mark Loving’s girlfriend, Syrella Carpenter. Weeks before, Carpenter had refused to give a statement; in the intervening time, Carpenter’s General Relief benefits were cut off, which she believes occurred because she “would not complain against” Galvan. Carpenter identified Gutierrez as the murder victim from a six-pack, as well as plaintiff (from a different six pack) as the person who admitted to killing Gutierrez.

         A preliminary hearing in the murder cases against Galvan was held in June 2011. Ultimately, Galvan was acquitted of all charges following a jury trial in April 2012.

         B. The Court’s Summary Judgment Order

         Galvan’s complaint in the instant suit alleges various civil rights violations pursuant to 42 U.S.C. § 1983, including (1) unlawful arrest; (2) failure to intervene (against Officer Nunn only); (3) deliberate fabrication of evidence; (4) malicious prosecution; (5) failure to disclose exculpatory evidence (i.e., Brady violations); and (6) Monell liability. In an order dated March 1, 2016, the Court granted in part and denied in part defendants’ motion for summary judgment. Specifically, the Court granted defendants’ motion for summary judgment as to plaintiff’s claims for deliberate fabrication of evidence; malicious prosecution;[2] and failure to disclose exculpatory evidence (i.e., Brady violations).[3]

         The Court denied defendants’ motion for summary judgment with respect to (1) plaintiff’s unlawful arrest claims against Officers Nunn and Terrazas; (2) plaintiff’s failure to intervene claim against Officer Nunn; and (3) plaintiff’s Monell claims against the City.

         Specifically, in denying defendants’ motion for summary judgment as to plaintiff’s unlawful arrest claim, the Court concluded as follows:

Taking Galvan’s version of the disputed facts as true - that defendants continued to pursue and arrest Galvan based on testimony that had been coerced from a vulnerable, unreliable witness, despite of additional evidence that rendered that witness’s testimony unlikely if not impossible - a reasonable jury could conclude that defendants did not have probable cause to arrest Galvan, in violation of Galvan’s clearly established right to be free from arrest without probable cause. Kennedy v. Los Angeles Police Dep’t, 887 F.2d 920, 924 (9th Cir. 1989) (“It is clearly established, of course, that an arrest without probable cause violates the Constitution”). Defendants’ motion for summary judgment is denied with regard to Galvan’s unlawful arrest claim.

Dkt. 68, at 21.

         Plaintiff’s failure to intervene claim is asserted against Officer Nunn only and is premised on the theory that because Nunn investigated the murder alongside Terrazas and was present during key witness interviews, Nunn had the opportunity to prohibit Terrazas from fabricating evidence that falsely implicated plaintiff, but failed to intervene by preventing the allegedly unlawful arrest. In denying defendants motion for summary judgment as to this claim, the Court held that “a reasonable juror could conclude that if Terrazas did not have enough information to reasonably believe Galvan had committed a crime, Nunn did not have enough information either and should have stopped the arrest or prosecution from taking place.” Dkt. 68, at 31.

         Galvan’s Monell claim against the City is based upon his contention that his alleged false arrest and malicious prosecution were caused by the City’s unconstitutional policies, practices, or customs. See Dkt. 68, at 32-34. Specifically, Galvan contends that the City failed to reprimand the officer defendants for alleged unconstitutional activities on three occasions demonstrates a widespread practice or deliberate policy choice by a policy-making official. Id. at 33. Galvan cites to three incidents: (1) a 2000 lawsuit, in which the Nunn and Terrazas were named as defendants; (2) a letter from the Los Angeles County Public Defender’s office to the LAPD, reporting a separate instance of alleged misconduct by Terrazas; and (3) the fact that defendants have not been reprimanded for the alleged misconduct occurring in the present case. Id.

         In denying summary judgment as to plaintiff’s Monell claim, the Court concluded as follows:

Although it is possible that none of these three incidents is sufficient to establish a municipal policy or custom in isolation, taken together the incidents potentially paint a different picture. Upon viewing the evidence presented a jury could reasonably conclude that there had been a pattern of accusations regarding the misconduct of these particular defendants that the City failed to address. The fact that the 2000 lawsuit was settled rather than dismissed, and the fact that the 2001 letter came from the County Public Defender's office, both reasonably indicate that these complaints were at the very least nonfrivolous and potentially warranting further municipal internal investigation. Further, although Galvan has not yet demonstrated defendants’ guilt in this case, defendants’ coercive interview techniques were presented during the criminal trial, and many witnesses denied defendants’ recorded version of events, giving rise to an inference that evidence had been fabricated. Thus, a reasonable jury could conclude that the City should have engaged in some further investigation with regard to the defendants' tactics in the underlying criminal case, even if Galvan had not filed the present civil action.

Dkt. 68, at 33-34.

         II. MOTIONS IN LIMINE

         A. Defendants’ Motions in Limine (“MIL”)

         1. Defendants’ MIL No. 1 to Trifurcate the Determination of Individual Liability from Compensatory Damages/Monell and Punitive Damages

         Federal Rule of Civil Procedure 42(b) states that “[f]or convenience, [in order] to avoid prejudice, or [in order] to expedite and economize, the court may order a separate trial of one or more separate issues . . . .” Fed.R.Civ.P. 42(b). Pursuant to Rule 42, defendants first move for an order trifurcating the trial into three phases, such that (1) the first phase will involve liability of the individual defendants, Terrazas and Nunn; (2) the second phase will involve both the determination of Monell liability and plaintiff’s compensatory damages; and (3) the third phase, if necessary, will involve trying the amount of punitive damages. Plaintiff argues that trifurcation of the case will unfairly prejudice plaintiff’s case, will be impracticable, and will run contrary to the policies of judicial economy. Plaintiff has agreed, however, to bifurcate the issue of punitive damages.

         The Court GRANTS in part, and DENIES in part defendants’ motion to trifurcate the trial. Specifically, the Court concludes that the trial should be trifurcated as follows: (1) the first phase will involve liability of the individual defendants, Terrazas and Nunn, as well as plaintiff’s compensatory damages; (2) the second phase will involve determination of Monell liability; and (3) the third phase, if necessary, will involve trying the amount of punitive damages as to the individual defendants.[4]

         2. Defendants’ MIL No. 2 to Exclude Evidence or References to the Defendant and Non-Defendant Officers’ Personnel History and Prior Lawsuits

         In 2011, LAPD conducted the first of two related Internal Affairs (“IA”) investigations regarding plaintiff’s March 1, 2011 arrest for the murder of Joey Gutierrez. The second of these investigations was generated in 2014, years after the murder. Defendants have produced both investigations in discovery. Defendants also produced one unrelated Internal Affairs investigation which was generated in 2008. Defendants contend that all three investigations are hearsay and are not probative of the issues to be litigated in the first phase of the trial (plaintiff’s unlawful arrest and failure to intervene claims).

         Accordingly, in their second motion in limine, defendants move to exclude (1) evidence of the two Internal Affairs investigations conducted by the LAPD in relation to plaintiff’s arrest on March 1, 2011; (2) evidence of unrelated Internal Affairs investigations conducted by the LAPD involving any current, former, or retired officer who testifies at trial, including the defendant officers; and (3) evidence of “other claims, lawsuits, or scandals.” Defendants argue that such evidence is irrelevant and unfairly prejudicial, and should therefore be excluded pursuant to Federal Rules of Evidence 403, 404(b), 406, and 608(b).

         Plaintiff avers that he does not intend to proffer evidence relating to the IA investigations to prove that defendants arrested him without probable cause or otherwise violated his constitutional rights. However, plaintiff argues that such evidence is relevant to plaintiff’s Monell claim, as it is probative of (a) the City’s notice of defendant Terrazas’ alleged misconduct in the past, (b) the City’s opportunity to investigate and to take remedial steps, and © the City’s purported failure to do so. More specifically, plaintiff avers that such evidence “will have a tendency . . . to make the existence of [d]efendant City’s apparent custom after being placed on express notice, of allowing, ratifying, condoning and permitting without discipline, the wrongful conduct of [d]efendants like [officers] Terrazas and Nunn.” Dkt. 95, at 5. Separately, plaintiff also contends that certain evidence from a particular IA investigation from 2000, as well as a lawsuit and subsequent settlement in 2000, involving defendant Terrazas concern Terrazas’s character for truthfulness. Specifically, plaintiff cites to an August 23, 2001 letter from the Public Defender’s Office stating that Terrazas “prepared a misleading report” and proceeded to “perpetuate[] [the] misleading report in sworn testimony at the trial.” Id. Plaintiff further avers that a January 4, 2000 incident, which purportedly resulted in a $275, 000 settlement, “arose from an unlawful arrest based on deliberately fabricated charges.” Dkt. 95, at 6. Accordingly, plaintiff contends that pursuant to Federal Rule of Evidence 608(b), such “prior conduct is probative of a witness’ character for truthfulness or untruthfulness, and more importantly, on issues strikingly similar to those in which he engage here.” Id. Therefore, plaintiff asserts that he should be permitted to cross-examine defendants on such matters.

         As plaintiff appears to concede, evidence of prior investigations, including any IA investigations related to plaintiff’s March 2011 arrest, are irrelevant and may cause unfair prejudice during the individual liability phase of the trial. Accordingly, evidence of any such investigations is inadmissible during the first phase of the trial, but perhaps relevant during the Monell phase, as explained supra.

         Accordingly, plaintiff’s motion is GRANTED in part and DENIED in part; specifically, the motion is granted as to the first phase of the trial and denied without prejudice as to the second and third phases of the trial.

         3. Defendants’ MIL No. 3 to Preclude Evidence of the Criminal Action and to Preclude Plaintiff Claiming he is “Innocent”

         In their third motion in limine, defendants argue that because the Court has granted summary judgment in defendants’ favor on plaintiff’s malicious prosecution and Brady claims, the jurors should not hear evidence indicating that any criminal case was ever filed against plaintiff or that plaintiff was ultimately acquitted of Joey Gutierrez’s murder. Defendants contend that during the first phase of the trial, the jury will instead be tasked with determining whether the defendant officers’ decision to arrest plaintiff on March 1, 2011 was reasonable based on the totality of the circumstances, as well as whether defendant Nunn failed to intervene by preventing the purportedly unlawful arrest.

         Accordingly, pursuant to Federal Rules of Evidence 402 and 403, defendants seek an order directing plaintiff’s counsel (1) not to convey to the jury any information regarding the filing or resolution of the related criminal proceedings against plaintiff; and (2) not to mention, refer to, interrogate concerning, nor to convey to the jury any suggestion, claim, or testimony that plaintiff and his witnesses contend plaintiff is “innocent.” In his opposition, plaintiff argues that the criminal proceedings, “and more importantly, [d]efendants’ perpetual fraudulent misconduct throughout the proceedings as well as [p]laintiff’s acquittal[, ] are highly relevant to [p]laintiff’s Monell claim” and should therefore be admitted at trial. Plaintiff states that he does not intend to introduce the acquittal as proof that he was falsely arrested, but rather “intends to introduce the criminal proceedings and acquittal to prove that [the City] maintained a pattern and practice of conduct which gave rise to the violations.” See Dkt. 96.

         As the Court explained in its summary judgment order, “given the history of complaints against defendants and the City’s apparent inaction in response, ” there is “at least a triable issue of fact with regard to whether the City had a policy of implicitly approving of or at least failing to sufficiently train regarding constitutional violations.” Dkt. 68, at 33 (noting that “a reasonable jury could conclude that the City should have engaged in some further investigation with ...


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