United States District Court, N.D. California, San Francisco Division
FINAL PRETRIAL ORDER
BEELER, UNITED STATES MAGISTRATE JUDGE
court held a final pretrial conference hi this matter on May
18, 2017. The court adopts the following pretrial order.
See Fed. R. Civ. P. 16(e).
TRIAL DATE & LENGTH OF TRIAL
jury trial will begin on June 5, 2017, in Courtroom C, 15th
Floor, U.S. District Court, 450 Golden Gate Avenue, San
Francisco, California. The trial will last five days. The
trial will be held Monday through Friday from 8:30 a.m. to
approximately 2:00 p.m. (or slightly longer to finish a
witness) and will include two 15-minute breaks. Counsel must
arrive at 8:15 a.m. to address any issues (such as
objections) before the trial day begins. Once the jury begins
deliberations, it usually stays past 2:00 p.m.
side will have 10 horns to present the direct examination of
its witnesses and to cross-examine the opposing parry's
witnesses, including all objections raised during the trial
day. hi addition, each party may make an opening statement of
around 45 minutes.
PROCEDURE DURING TRIAL
refer to the Court's April 22, 2016 Pretrial Older for
the proper procedures regarding the presentation of exhibits,
depositions, and witness testimony during trial. (ECF No.
CLAIMS REMAINING; DEFENSES; RELIEF SOUGHT; FACTS; DISPUTED
following claims remain to be tried against the following
Claims and Defenses
1. Violation of Fourth Amendment, excessive force, against
2. Violation of California Civil Code § 52.1 -
Interference by Threat, Intimidation or Coercion with the
Exercise of an Individual's Rights, against Defendants
Laughlin and County;
3. Negligence, against Defendants Laughlin and Comity;
4. Assault and Battery, against Defendants Laughlin and
5. False Arrest and Imprisonment (California state law),
against Defendants Laughlin and County. Because the court has
summarily decided that Deputy Laughlin had probable cause to
arrest Mr. May initially, this claim is limited to a
"dissipation theory'; i.e., the claim
challenges whether, and for how long, probable cause remained
to detain and eventually cite Mr. May.
Defendant Laughlin's deployment and use of his K-9
Riggs was objectively reasonable under the
circumstances and, therefore, did not violate the Fourth
Amendment, violate Civil Code § 52.1, or constitute
state-law negligence or assault and battery:
There was no act of coercion independent of any coercion
inherent in the alleged excessive force and, therefore.
Defendants cannot be liable under Civil Code § 52.1;
Defendant Laughlin had probable cause to arrest Plaintiff
and, therefore. Defendants cannot be liable for state-law
Plaintiff was comparatively negligent and/or by his own acts
contributed to the creation of a dangerous situation;
Plaintiff failed to properly mitigate any alleged damages he
suffered as a result of the incident;
Defendant Laughlin is immune from liability for Plaintiff s
§ 1983 claim under qualified immunity; and
There is no basis for an award of punitive damages against
plaintiff seeks damages for the following injuries, hi an
amount according to proof and that is fair, just, and
1. Physical and emotional pain and suffering, including
physically and emotionally traumatic wrongful seizure and
battery, painful bite wounds, loss of enjoyment of life;
2. Up to three times actual damages under Cal. Civ. Code
§ 52.1; and
3. Punitive damages against Defendant Laughlin.
plaintiff also seeks attorney's fees and costs allowable
under federal law on his 42 U.S.C. §§ 1983 and 1988
claims, under Cal. Civ. Code § 52.1, and Cal. Code of
Civil Procedure § 1021.5, including a required
enhancement of attorney's fees under state law. See
Horsford v. Bd. of Trs., 132 Cal.App. 4th, 359, 394-95
(2005); Bender v. Cnty. of L.A., 217 Cal.App. 4th.
968, 988 (2013).
Stipulated and Undisputed Facts
all times. Defendant Laughlin acted under color of law.
Sharon Coster called the security-company number posted on
the fence surrounding the construction site, and the call
went to a medical-supply company in Ohio.
Defendant Laughlin had no information about any prior crimes
at the construction site.
Defendant Laughlin arrested Plaintiff at the construction
site for commercial burglary.
Defendant Laughlin cited Plaintiff for violating Cal. Penal
Code §§ 602 (m) and 148 (a).
Defendant Laughlin had probable cause to arrest Plaintiff for
misdemeanor trespass (based on the Summary-Judgment Order).
San Mateo County District Attorney declined to file any
criminal charges against Mr. May.
Defendant Laughlin was not disciplined as a result of this
Defendant Laughlin was not charged with any crimes as a
result of this incident.
parties must prepare the appropriate stipulations to read to
the jury and admit as evidence.
Disputed Fact Issues
Whether Defendant Laughlin had probable cause to arrest
Plaintiff for the specific-intent ciime of commercial
burglary, Cal. Penal Code §§ 459, 460.
Whether Defendant Laughlin's continued custodial arrest
of Plaintiff (after he knew or reasonably should have known
the facts surrounding the rescue of the cat) and his
subsequent citation of Plaintiff for violating California
Penal Code §§ 602(m) and 148(a) constitute false
arrest and imprisonment under state law.
type and amount of force represented by the deployment of
police canine Riggs to bite and apprehend Plaintiff.
Whether Defendant Laughlin gave reasonable, appropriate, and
audible canine announcements and warnings before ordering
police canine Riggs to bite and apprehend Plaintiff.
Whether Plaintiff heard and failed to comply with canine
announcements and warnings given by Defendant Laughlin.
severity of any crime for which Defendant Laughlin had
probable cause to arrest Plaintiff at the time Laughlin
decided to deploy police canine Riggs to bite and
Whether Plaintiff posed an immediate threat at the time
Defendant Laughlin decided to deploy police canine
Riggs to bite and apprehend Plaintiff 8. Whether
Plaintiff actively resisted arrest or attempted to flee from
arrest at the time Laughlin decided to deploy police canine
Riggs to bite and apprehend Plaintiff.
Whether Defendant Laughlin had alternatives to deploying
police canine Riggs to bite and apprehend Plaintiff
10. Other factors relevant to the use of force as set forth
in the jury instructions.
Whether Detective Laughlin's use of the police canine
Riggs to bite and apprehend Plaintiff was
objectively unreasonable under the circumstances.
Whether Defendant Laughlin ordered or permitted
Riggs to continue biting Plaintiff ...