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Levy v. County of Alpine

United States District Court, E.D. California

March 31, 2017

ROBERT E. LEVY, Plaintiff,
v.
COUNTY OF ALPINE,, Defendants.

          ORDER AMENDING FINAL PRETRIAL ORDER

          ROBERT H. WHALEY Senior United States District Judge.

         Before the Court is Defendant County of Alpine's Motion to Modify the Final Pretrial Order. ECF No. 90. Defendant seeks to modify the Central Factual Disputes section and to add exhibits not included in Attachment D to the Final Pretrial Order. Id. Plaintiff Robert Levy opposes both of the proposed changes. ECF No. 93. Also before the Court are Plaintiff Robert Levy's Motions In Limine and Defendant County of Alpine's Motions In Limine. ECF Nos. 68, 69, 115, and 118. The Court has reviewed the file as a whole and is fully informed.

         I. Central Factual Disputes

         The Final Pretrial Order contains seven factual disputes under the heading Central Factual Disputes. ECF No. 64 at 2-3. Defendant seeks to amend the Final Pretrial Order to replace the current Central Factual Disputes section with the following: (1) when and to whom Plaintiff Robert Levy complained about Pamela Knorr's actions and what his complaints entailed; (2) whether Levy's complaints about Knorr were a matter of public concern; (3) whether Levy was speaking as a private citizen, not as a public employee in the scope or context of his job duties when he complaint [sic] about Knorr's actions; (4) whether Knorr's recommendation that the Board of Supervisors authorize her to retain the services of LCW to investigate the Leviathan Peak telecommunications project was an effort to retaliate against Levy for his complaints about Knorr's actions; (5) whether retaliation against Levy was a substantial or motivating factor in the Board of Supervisors' decision to authorize the LCW investigation and report; (6) whether Levy suffered damages as a result of the retaliation taken by the Board of Supervisors, and if so, the amount of damages. ECF No. 90 at 1-2.

         The Court has reviewed the filings as a whole, including the summary judgment order and briefings (ECF Nos. 26, 31-35, 38, 44), trial briefs (ECF Nos. 103, 104), and proposed jury instructions (ECF Nos. 98, 99), and determines that the current Central Factual Disputes section does not encompass all of the facts at issue in this case and may contain contentions of facts that are not relevant. A review of the proposed and model jury instructions illustrates additional facts that are relevant to the claim including facts that must be established by plaintiff to prevail and facts that are relevant to the Defendant's legal and factual defenses such as immunity and status of Plaintiff under the First Amendment. It would be impossible for the Court to use the Central Factual Disputes section of the Pretrial order to limit the evidence presented as neither parties' case would fit within those confines. Therefore, the Court finds reason to amend the Final Pretrial Order to add-but not replace-the factual disputes presented by Defendant to the current Central Factual Disputes section of the Final Pretrial Order. While these facts shall be added, the Court does not find the Central Factual Disputes section to be particularly helpful in the management of the case, and the Court will not necessarily limit the evidence that may be presented at trial based on that section of the Final Pretrial Order.

         II. Additional Exhibits

         Defendant also requests that Attachment D to the Final Pretrial Order (Alpine County's Exhibit List) be amended to include five additional exhibits. ECF No. 90-1 at 10. These documents include: (1) minutes of the special meeting of the Board of Supervisors in closed session on November 15, 2012; (2) e-mail from Teola Tremayne dated November 16, 2012, with attached addendum agenda for Board of Supervisors meeting on November 20, 2012; (3) minutes of the Board of Supervisors meeting on November 20, 2012; (4) minutes of the Board of Supervisors on December 4, 2012; and (5) Levy's claim for damage against County of Sierra filed December 11, 2013. Id.

         The minutes of the Board of Supervisors meetings are public records. The meetings of the Board of Supervisors and the actions taken at the meetings form the basis of Plaintiff's ratification claim as well as the act authorizing the dissemination of the investigation report alleged to be tortuous. Communications between the parties show that a collection of exhibits was delivered to Plaintiff's counsel on August 1, 2016, which included the proposed exhibits. ECF No. 91 at 2. Counsel for Defendant also sent an email to Plaintiff's counsel on July 31, 2016, to notify him that the exhibit list included these additional exhibits that were not identified in the Final Pretrial Order. Id. Thus, Plaintiff has been on notice of these exhibits, which are also public record. The meetings referenced in the exhibits and the email identified are central to the Plaintiffs case and should have been part of Plaintiff's preparation from the time of the filing of his Complaint. No actual prejudice is asserted by Plaintiff. Rather, Plaintiff rests on Defendant's failure to include the exhibits in the Final Pretrial Order entered the prior month. Plaintiff suggests that the Court review the exhibits and that they be made available at the trial “if appropriate”. ECF 93 at 4. The Court finds that the inclusion of these exhibits does not prejudice the Plaintiff and that it is appropriate that the exhibits be included.

         The Court notes that Plaintiff Levy's complaint against County of Sierra is dissimilar to the other exhibits requested, in that it is not a record of Defendant and may not have been known to Plaintiff's counsel. The document references a statement by a party opponent that would normally be admissible as substantive evidence if offered by Defendant. It also may be characterized as rebuttal evidence to be used if Plaintiff denies such statements. As such, the document would not be required to be produced until used in rebuttal. Given that Plaintiff has not claimed actual prejudice by the timing of Defendant's request to list additional exhibits, this exhibit is included as well.

         III. Motions In Limine

         A. Plaintiff's Motions in Limine (ECF No. 68)

         Ptf.'s MIL 1: Documents and Reports Not Presented to Plaintiff

         Plaintiff first moves to exclude all documents and reports prepared by or on behalf of Defendant, which were not presented to Plaintiff during discovery or with an initial disclosure, including but not limited to any and all investigations, reports, etc. from Defendant's retained investigator, Ken MacHold. Plaintiff also moves to exclude all references, evidence, and testimony regarding any of these documents or reports. ECF No. 68 at 2-3.

         Plaintiff argues that such evidence should be excluded because (1) it is irrelevant to the issues in this case (Fed. R. Evid. 401); and (2) introduction would require an undue consumption of time and is likely to confuse or mislead the jury, or will cause Plaintiff to be unduly prejudiced (Fed. R. Evid. 403). Id.

         Defendant stipulates as follows: “Defendant stipulates to the foregoing except for any documents that may be used for the purpose of impeachment AND that were not subject to the Rule 26(a) disclosure AND/OR requested through discovery.” ECF No. 70 at 2.

         The Court GRANTS this motion in limine as stipulated by the Defendant. Ptf.'s MIL 2: Non-testifying, County-Affiliated Witnesses Plaintiff moves to exclude all non-testifying, County-affiliated witnesses from the courtroom during the actual proceedings. ECF No. 68 at 3. (The Court assumes that Plaintiff is referencing testifying witnesses). Plaintiff specifically includes former defendants Donald Jardine, Philip Bennett, and Tom Sweeney. Id.

         Plaintiff argues that these individuals share a strong personal animus toward Plaintiff and are likely to coordinate their responses to questions in an effort to discredit Plaintiff; which will undoubtedly prejudice the jury. Id. Plaintiff states he understands that Defendant will stipulate, with the caveat that Donald Jardine has been selected to sit at counsel table with defense counsel as the County's representative. Id.

         Indeed, Defendant does stipulate to this motion “with the understanding that Donald Jardine will be present throughout the Trial as he is the individual appearing on behalf of the Defendant.” ECF No. 70 at 3.

         The Court GRANTS this motion in limine, witnesses shall be excluded from the courtroom, except for Donald Jardine. Ptf.'s MIL 3: Written Report of Jared L. Zwickey Plaintiff moves to exclude the written report of Defendant's retained expert, Jared L. Zwickey, and all references, evidence, and testimony regarding any documents or reports from Jared L. Zwickey on the grounds that the evidence is irrelevant (Fed. R. Evid. 401); and introduction would require an undue consumption of time and is likely to confuse or mislead the jury, or will cause Plaintiff to be unduly prejudiced (Fed. R. Evid. 403). ECF No. 68 at 3-4.

         Defendant agrees not to introduce the written report of the expert witness as evidence; however, Defendant does not stipulate to excluding all references, evidence, and testimony regarding any documents or reports from Jared L. Zwickey. ECF No. 70 at 4. Defendant argues that such testimony is relevant and necessary to explain the issues at trial; furthermore, Defendant states that the written report was previously produced to Plaintiff and Chief Zwickey's deposition has also been taken. Id. As such, Defendant contends that neither Rule 401 nor Rule 403 supports excluding and all references, evidence, and testimony regarding any documents or reports from Jared L. Zwickey.

         The Court GRANTS this motion in limine as agreed to by the parties with respect to the written report. The remaining motion in limine is DENIED. Ptf.'s MIL 4: Pre-litigation, Retirement-related Settlement Discussions Plaintiff moves to allow references, evidence, and testimony regarding Plaintiff's pre-litigation, retirement-related settlement discussions with Defendant for the purpose of proving unfair bias toward Plaintiff and establish a pattern of retaliation by the County and Pamela Knorr toward Plaintiff. ECF No. 68 at 4-5.

         Defendant opposes this motion and contends that this evidence should not be allowed in for two reasons: (1) these negotiations occurred after the events giving rise to the cause of action and can't be used retroactively to show bias, and (2) if Pamela Knorr sabotaged retirement negotiations with Plaintiff, it did not violate his constitutional rights. ECF No. 70 at 6-9.

         The Court DENIES this motion in limine. The qualifications for early retirement and reasons for lack of settlement are marginally relevant to bias. However, they occurred after the events relevant to this case, would require inquiring into collateral matters that are not relevant, and would not result in an efficient use of time. The second hand statement that “Pamela sabotaged the deal” is a conclusion that would not be admissible without a significant foundation, the establishment of which would detract from the issue at trial. This evidence is excluded.

         Ptf.'s MIL 5: Defendant's Witnesses; Sandra Bryson and Jim Holdridge

         Plaintiff moves to exclude specific witnesses, Sandra Bryson and James “Jim” Holdridge, from the courtroom on the grounds that they have a personal grudge towards Plaintiff and their actions in ...


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