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May v. San Mateo County

United States District Court, N.D. California, San Francisco Division

May 26, 2017

RICHARD EARL MAY, Plaintiff,
v.
SAN MATEO COUNTY, et al, Defendants.

          FINAL PRETRIAL ORDER

          LAUREL BEELER, UNITED STATES MAGISTRATE JUDGE

         The 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).

         I. TRIAL DATE & LENGTH OF TRIAL

         A. The 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.

         B. Each 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.

         II. PROCEDURE DURING TRIAL

         Please 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. 24.)

         III. CLAIMS REMAINING; DEFENSES; RELIEF SOUGHT; FACTS; DISPUTED LEGAL ISSUES

         The following claims remain to be tried against the following defendants:

         A. Claims and Defenses

         1. The plaintiffs claims

1. Violation of Fourth Amendment, excessive force, against Defendant Laughlin;
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 Comity; 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.

         2. Defendants' defenses

         1. 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:

         2. 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;

         3. Defendant Laughlin had probable cause to arrest Plaintiff and, therefore. Defendants cannot be liable for state-law false arrest;

         4. Plaintiff was comparatively negligent and/or by his own acts contributed to the creation of a dangerous situation;

         5. Plaintiff failed to properly mitigate any alleged damages he suffered as a result of the incident;

         6. Defendant Laughlin is immune from liability for Plaintiff s § 1983 claim under qualified immunity; and

         7. There is no basis for an award of punitive damages against Defendant Laughlin.

         B. Relief Sought

         The plaintiff seeks damages for the following injuries, hi an amount according to proof and that is fair, just, and reasonable:

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.

         The 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).

         C. Stipulated and Undisputed Facts

         1. At all times. Defendant Laughlin acted under color of law.

         2. 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.

         3. Defendant Laughlin had no information about any prior crimes at the construction site.

         4. Defendant Laughlin arrested Plaintiff at the construction site for commercial burglary.

         5. Defendant Laughlin cited Plaintiff for violating Cal. Penal Code §§ 602 (m) and 148 (a).

         6. Defendant Laughlin had probable cause to arrest Plaintiff for misdemeanor trespass (based on the Summary-Judgment Order).

         7. The San Mateo County District Attorney declined to file any criminal charges against Mr. May.

         8. Defendant Laughlin was not disciplined as a result of this incident.

         9. Defendant Laughlin was not charged with any crimes as a result of this incident.

         The parties must prepare the appropriate stipulations to read to the jury and admit as evidence.

         D. Disputed Fact Issues

         1. Whether Defendant Laughlin had probable cause to arrest Plaintiff for the specific-intent ciime of commercial burglary, Cal. Penal Code §§ 459, 460.

         2. 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.

         3. The type and amount of force represented by the deployment of police canine Riggs to bite and apprehend Plaintiff.

         4. Whether Defendant Laughlin gave reasonable, appropriate, and audible canine announcements and warnings before ordering police canine Riggs to bite and apprehend Plaintiff.

         5. Whether Plaintiff heard and failed to comply with canine announcements and warnings given by Defendant Laughlin.

         6. The 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 apprehend Plaintiff.[1]

         7. 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.

         9. 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.

         11. Whether Detective Laughlin's use of the police canine Riggs to bite and apprehend Plaintiff was objectively unreasonable under the circumstances.

         12. Whether Defendant Laughlin ordered or permitted Riggs to continue biting Plaintiff ...


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