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Doe v. County of Kern

United States District Court, E.D. California

April 27, 2017

JANE DOE, Plaintiff,
v.
COUNTY OF KERN, et al., Defendants.

          PRETRIAL ORDER

          Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE

         The plaintiff claims that while she was a minor and housed at Juvenile Hall, defendant Navejar, a Kern County Probation Juvenile Correctional Officer, sexually assaulted her on several occasions. The plaintiff brings claims under 42 U.S.C. § 1983 and state law.

         A. JURISDICTION/ VENUE

         This court has jurisdiction over this diversity action under 42 U.S.C § 1332. Also, the events that gave rise to this action occurred in Bakersfield, California. Accordingly, venue is proper in the United States District Court for the Eastern District of California sitting in Bakersfield. See 28 U.S.C. § 1391.

         B. JURY TRIAL

         The parties demanded a jury trial in this matter. (Doc. 1 at 1; Doc. 10; Doc. 13 at 10)

         C. UNDISPUTED FACTS

         1. In September 2014, Rebecca Smith was a ward confined in James G. Bowles Juvenile Hall.

         2. In September 2014, Cesar Navejar was employed by the Kern County Department of Probation as a Juvenile Corrections Officer II.

         D. DISPUTED FACTS

         All other facts, not set forth above, remain in dispute including the following:

1. Whether Defendant Navejar sexually abused Plaintiff.
2. Whether any sexual abuse of Plaintiff involved violence, threats, or coercion.
3. The nature and extent of Plaintiff's damages, if any.
4. The availability and amount of any punitive damages.
5. Whether alleged deficient customs, practices, and policies at Juvenile Hall were a substantial factor in causing the sexual abuse of Plaintiff.
6. Whether alleged deficient training of Juvenile Hall employees was a substantial factor in causing the sexual abuse of Plaintiff.
7. Whether the County of Kern ratified Defendant Navejar's alleged misconduct or maintained a policy of inaction.
8. Whether Defendant Navejar was acting in the course and scope of his employment.
9. Whether there was negligent supervision, hiring, or retention on the part of the County.

         E. DISPUTED EVIDENTIARY ISSUES

         Plaintiff:

         1. Plaintiffs dispute and intend to move to exclude each of the witnesses on Defendants' exhibit list, with the exception of Mimi Wollitz. Plaintiff intends to move for relief on the grounds of relevance, improper character evidence, and Rule 403. Further, Plaintiff intends to move to exclude these witnesses as untimely disclosed, to the extent they were omitted from the respective defendants' initial disclosures. Defendant Navejar's purported supplemental Rule 26 disclosure, received after draft witness lists were already exchanged for trial, does not cure this failure to disclose. Finally, some of these individuals appear to be undisclosed experts, such as “Larry Yokoyama, M.D., ” Defendant Navejar's attorneys, investigators and district attorneys, and those who are described as unnamed “Psychologist/Psychiatrists” who interacted with Plaintiff at various times.

         2. Plaintiff contends that any evidence or allegations regarding her drug use would be irrelevant, prejudicial, and improper character evidence.

         3. Plaintiff contends that any evidence or allegations regarding her criminal or juvenile history would be irrelevant, prejudicial, and improper character evidence. This also includes reports by child protective services.

         4. Plaintiff contends that any evidence or allegations regarding her education, grades, or school records would be irrelevant, prejudicial, and improper character evidence.

         5. Plaintiff contends that any evidence or allegations regarding her gang affiliation would be irrelevant, prejudicial, and improper character evidence.

         6. Plaintiff contends that any evidence or allegations regarding her sexual history would be irrelevant, prejudicial, and improper character evidence. This would include any sexual victimization that occurred or was alleged to have occurred in the past.

         7. Plaintiff contends that any evidence or allegations regarding her prior history of discipline at Juvenile Hall would be irrelevant, prejudicial, and improper character evidence.

         8. Plaintiff contends that her Facebook or other social media posts are irrelevant, prejudicial, and improper character evidence.

         9. Plaintiff intends to move to exclude the testimony and opinions of defense expert Judy Malmgren on the grounds of relevance, foundation, and the principles of Daubert.

         10. Plaintiff intends to move to exclude any testimony and opinions of defense expert Harold Seymour to the effect that the sexual abuse more probably did or did not occur. In other words, Dr. Seymour's opinions should be limited to his diagnoses of Plaintiff and his opinions regarding future treatment, and he should not opine regarding liability.

         11. Plaintiff intends to move to exclude evidence that the criminal prosecution of Defendant Navejar did not result in a guilty verdict.

         12. Plaintiff contends that any exhibits or documents that have not been disclosed to Plaintiff to date would be inadmissible. Plaintiff is in the process of reviewing Defendants' exhibit list to ascertain which have not been previously disclosed. For example, no photographs of the “plumbing fixture, ” Defendants' Exhibit 8, was ever disclosed. In addition, to the extent that Defendants have obtained information through juvenile court petitions that have not been disclosed to Plaintiff, Plaintiff contends that any such evidence would be inadmissible.

         13. Plaintiff contends that it would be improper to use negative information about Plaintiff at trial to argue or suggest that she is “damaged goods” whose damages should be reduced by reason of her prior experiences and traumas, and will seek an order limiting such arguments.

         14. Plaintiff contends that consent is not a defense or mitigating factor, and intends to seek an order excluding any evidence that would bear on consent and also secure an appropriate jury instruction.

         15. Plaintiff contends that the jury should be instructed that if sexual contact occurred, the jury should find in Plaintiff's favor on all liability issues. In other words, there is no sexual contact that would not violate Plaintiff's rights or constitute a tort under the circumstances.

         16. Plaintiff contends that there is no comparative fault, comparative negligence, qualified immunity, or failure to mitigate defense in this matter, and the jury should be so instructed.

         17. Plaintiff contends that Defendants are not entitled to any immunities under state law.

         18. Motion to preclude Defendants from putting on evidence or argument to the effect that there were other wards in their rooms in Plaintiff's wing of Pathways at the time of the alleged sexual abuse.

         19. Motion to preclude Defendants from putting on expert testimony, whether of retained or non-retained experts, except for the three experts that were timely disclosed: Heather Mauro, Harold Seymour, and Judy Malmgren.

         Defendants:

         1. Motion to preclude evidence not produced during discovery;

         2. Motion to exclude non-party witnesses from the courtroom;

         3. Motion to preclude questions regarding personnel matters, prior complaints concerning job performance, or prior disciplinary issues as to Defendant Cesar Navejar;

         4. Motion to preclude non-expert witness form offering expert opinions or testimony;

         5. Motion to preclude evidence pertaining to Plaintiff's future economic loss;

         6. Motion to preclude evidence pertaining to Plaintiff's lack or loss of sexual intimacy;

         7. Motion to preclude evidence of any other lawsuits and/or criminal matters against Navejar;

         8. Motion to preclude Plaintiff from presenting evidence contrary to admissions made during discovery;

         9. Motion to preclude evidence of Plaintiff's financial condition;

         10. Motion to preclude testimony of Plaintiff's expert Deborah Cresswell on the grounds of foundation, and Daubert principles;

         11. Motion to preclude testimony of Plaintiff's experts John Bacon and Daniel Marble on the grounds of relevance, foundation, and the fact that they are unqualified as experts;

         12. Motion to preclude evidence of any other lawsuits against the County of Kern or any other juvenile corrections officer employed at James H. Bowles Juvenile Hall;

         13. Motion to preclude Plaintiff's retained and non-retained experts from offering any testimony or opinions beyond that which they offered at the time of their depositions;

         14. Motion to preclude lay witnesses from offering expert witness testimony;

         15. Motion to preclude testimony and/or evidence of Maria Lopez regarding the “grunt” noise she thought Cesar Navejar made;

         16. Motion to preclude the opinions of Detective Sporer regarding Cesar Navejar;

         17. Motion to preclude the testimony and/or evidence of the absence of Cesar Navejar denying the sexual assault when arrested by Bakersfield Police Department detectives;

         18. Motion to preclude any testimony and/or evidence regarding Precious Nolen's arrest by Deputy Juan Maldonado;

         19. Motion to preclude the fact that Bakersfield Police Department recommended filing a criminal complaint against Navejar and that criminal charges were filed;

         20. Motion to preclude testimony and/or evidence that Navejar was arrested;

         21. Motion to preclude testimony and/or evidence that Maria Lopez was told by an officer to keep an eye on Navejar;

         22. Motion to preclude evidence that Navejar was placed on paid administrative leave;

         23. Motion to preclude evidence that Navejar is the subject of an Internal Affairs investigation with the Kern County Probation Department;

         24. Motion to preclude any mention of the Prison Rape Elimination Act;

         25. Motion to preclude witness Sabrina Heinze from testifying;

         26. Motion to preclude witness Lance O'Nesky from testifying;

         27. Motion to preclude testimony and/or evidence regarding Shaun Romans 82 page Internal Affairs report;

         28. Motion to preclude any mention of misconduct by other juvenile corrections officers occurring after September 30, 2014;

         29. Motion to preclude any testimony and/or evidence that Officer Navejar was described as creepy;

         30. Preclude evidence and/or testimony regarding JCO Divyesh Bhakta's statement that he observed Navejar stop and turn around and stare at a ward that had bent over

         31. Preclude testimony and/or evidence regarding Navejar be referenced as “lazy”

         32. Preclude improper comments regarding damages including any inquiry, comment or argument before the jury that suggests that jurors should base Plaintiffs' damages on an amount that the jurors would charge to endure similar injuries, or that would appeal to community standards or morals.

         33. Request that the actual names of wards be used

         34. Request to unseal only documents that are to be used as evidence

         F. SPECIAL FACTUAL INFORMATION

         As set forth in the joint pretrial statement. (Doc. 38)

         G. RELIEF SOUGHT

         Plaintiff seeks past and future non-economic compensatory damages, future medical care, punitive damages, statutory damages under the Bane Act and attorneys' fees and costs.

         The defendants seek a defense verdict and fees and costs.

         H. ABANDONED ISSUES

         None.

         I. WITNESSES

         The following is a list of witnesses that the parties expect to call at trial, including rebuttal and impeachment witnesses. NO WITNESS, OTHER THAN THOSE LISTED IN THIS SECTION, MAY BE CALLED AT TRIAL UNLESS THE PARTIES STIPULATE OR UPON A SHOWING THAT THIS ORDER SHOULD BE MODIFIED TO PREVENT “MANIFEST INJUSTICE.” Fed.R.Civ.P. 16(e); Local Rule 281(b)(10).

         1. Cesar Navejar

         2. Kenneth Sporer

         3. John Joseph Zahry

         4. Heather Mauro

         5. Mesha Elliott

         6. Catherine Gonzalez

         7. Maria Lopez

         8. Divyesh Bhakta

         9. Sophia Rivas

         10. Veronica Andriano

         11. Tiofilo Garcia

         12. Michele Borcky

         13. April Etheridge

         14. Mimi Wollitz

         15. Plaintiff Jane Doe

         16. Shay Molennor

         17. T.R. Merickel

         18. Kathy Lemon

         19. Matthew Fontaine

         20. Janell Davidson

         21. Shaun S. Romans

         22. Daniel M. Marble

         23. John J. Bacon

         24. Paula Lee Smith

         25. Jason Brown

         26. Harold Lee Seymour, Ph.D.

         27. Deborah L. Cresswell, Ph.D.

         28. Brooke Ramirez

         29. Kelly Woolard

         30. Jeffrey Cecil

         31. Destinie Martinez

         32. Kristie Bilbrey

         33. Rex Davenport

         34. Juan Maldonado

         35. Carol Williams

         36. J. Lee

         37. Jose Gomez

         38. Lisa Wedeking-White

         39. Patrick Harrelson

         40. Detective McAfee ID# 940

         41. Jeffrey Burdick

         42. Lance O'Nesky

         43. Lieutenant Grimes

         44. Detective Galland

         45. Detective Wesbrook

         46. David Kuge

         47. Fabian Estrada

         In addition to the witness listed above by Plaintiff, Defendants will also call the following witnesses:

         1. Mimi Wollitz

         2. Jerardo Garza

         3. Laura Perez

         4. Ernie Geronimo

         5. Jose Santamaria

         6. Shawn Collins

         7. David Faingold

         8. Wendala Sanchez

         9. Erica Navejar

         10. Kimberly Hernandez

         11. Laura Rodriguez

         12. Richard Figeoura

         13. Robert Madment

         14. Ryan Daniels

         15. P.N.

         16. Jeffrey Nicol

         17. Amber Jones

         18. Ann Rosales

         19. Jenny Thoman

         20. Veronica Drucker

         21. Shanna Kellams

         22. Alba Lopez

         23. Casey Rush

         24. Yolanda Alacron

         25. Juan Gutierrez

         26. B. Escamill

         27. R. Gaston

         28. Ken Hutchins

         29. M. Garcia

         30. ...


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