United States District Court, E.D. California
ROBERT E. LEVY, Plaintiff,
COUNTY OF ALPINE,, Defendants.
ORDER AMENDING FINAL PRETRIAL ORDER
H. WHALEY Senior United States District Judge.
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.
Central Factual Disputes
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.
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
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.
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.
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.
Motions In Limine
Plaintiff's Motions in Limine (ECF No. 68)
MIL 1: Documents and Reports Not Presented to 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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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
MIL 5: Defendant's Witnesses; Sandra Bryson and Jim
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 ...