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Lucero v. Ettare

United States District Court, N.D. California

June 7, 2017

JUAN LUCERO, JR., Plaintiff,
v.
JOHN ETTARE, et al., Defendants.

          ORDER FOLLOWING PRETRIAL CONFERENCE

          KANDIS A. WESTMORE United States Magistrate Judge

         The Court held a pretrial conference in this case on September 20, 2016. This order memorializes the Court's rulings, issued from the bench, on motions in limine, and objections to witnesses, deposition excerpts, discovery responses, exhibits, proposed voir dire questions, proposed jury instructions, and the proposed form of verdict.

         A. Motions in limine

         i. Plaintiff's motion in limine no. 1 (Plaintiff's prior arrests and convictions)

         Plaintiff moves to preclude all testimony and evidence of his prior arrests and convictions, on the ground that such evidence is irrelevant and will create a substantial danger of undue prejudice.[1] (Plf.'s Mots. in Limine at 3, Dkt. No. 66.) Defendants make four arguments for why evidence of Plaintiffs' prior arrests and convictions should be admissible.

         First, Defendants argue that they should be allowed to impeach Plaintiff's testimony that he had never been arrested for being drunk in public by relying on his two prior arrests for being drunk in public. (Defs.' Opp'n to Mots. in Limine at 3, Dkt. No. 86.) Plaintiff argues that evidence of prior arrests is irrelevant in this case.[2] Relevant evidence is any evidence that has any tendency to make a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Fed.R.Evid. 401. Here, a significant issue is the credibility of the parties, and Plaintiff could be impeached if he testified that he was arrested for being drunk in public by cross-examining him about his being arrested for being drunk in public.

         The Court finds, however, that the evidence of the prior arrests for being drunk in public should be excluded because of the risk of unfair prejudice. The Court has discretion "to exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed.R.Evid. 403. Here, there is a significant risk of unfair prejudice that the jury will use the arrests for a purpose other than impeachment, such as believing Plaintiff is a bad actor or that he was more likely to be drunk when he was arrested on September 7, 2013, thus supporting Defendants' version of events. The Court finds that the risk of undue prejudice substantially outweighs the impeachment value of the prior arrests.

         Second, Defendants argue that the prior arrests show that Plaintiff has "prior experience being arrested, booked and jailed, and therefore could have made up his claims of what happened in this case." (Defs.' Opp'n at 3-4; see also Defs.' Mots. in Limine at 19, Dkt. No. 69.) The Court rejects this argument. Defendants do not explain why Plaintiff's prior arrests would help him "make up" his version of the events, especially when none of the prior arrests were made by the Berkeley Police Department. Similarly, Defendants do not explain why the prior arrests would suggest that his version of the events were actually based on a prior arrest or jailing. (See Defs.' Mots. in Limine at 19.) In short, Plaintiff would have no knowledge of the Berkeley Police Department's procedures based on his prior arrests to then "make up" his version of events, and any probative value would be minimal at best.

         Third, Defendants argue that Plaintiff's prior arrests and convictions are permissible to show that Plaintiff has bias and prejudice against law enforcement, thus evidencing a motive for filing the instant suit. (Defs.' Opp'n at 4; Defs.' Mots. in Limine at 19.) In support, Defendants rely on Heath v. Cast, where the Ninth Circuit found that the plaintiff's prior misdemeanor convictions were probative of the plaintiff's bias against the Newport Beach police and of his motive for bringing the action. 813 F.2d 254, 259 (9th Cir. 1987). Heath is not applicable here. As an initial matter, Heath concerned "prior misdemeanor convictions resulting from arrests made by the same police agency, " whereas here every prior arrest was made by a police department other than the Berkeley Police Department. 813 F.2d at 259 (emphasis added); see also Green v. Baca, 226 F.R.D. 624, 657 (C.D. Cal. 2005) (rejecting the Los Angeles Sheriff's Department's argument that the plaintiff's prior arrests were relevant to show bias because the plaintiff was never arrested by the Los Angeles Sheriff's Department). Further, unlike in Heath, where the parties actually stipulated that Plaintiff was biased towards the officers, see 813 F.2d at 259, here there is no other evidence presented by Defendants that Plaintiff was biased towards Defendants in this case. Compare with Gallagher v. City of W. Covina, No. CV 00-377 CBM (RNB), 2002 WL 1770761, at *4 (C.D. Cal. July 29, 2002) (granting motion in limine to preclude prior convictions to show bias because there was no stipulation that the plaintiff was biased towards the same officers and there was no other evidence of bias). Because the prior arrests were not made by Defendants in this case or even the Berkeley Police Department, and because there is no other evidence of bias, the Court concludes that the prior arrests and convictions are not admissible to show bias.

         Finally, Defendants argue that the prior arrests are relevant to showing that Plaintiff's emotional distress is "exaggerated." (Defs.' Opp'n to Mots. in Limine at 4; Defs.' Mots. in Limine at 19.) In Peraza v. Delameter, the Ninth Circuit found that evidence of subsequent encounters with the police and difficulties in school could be introduced for the issue of damages. 722 F.2d 1455, 1457 (9th Cir. 1984). Here, Defendants seek to introduce evidence of prior arrests. Moreover, the facts of the prior arrests are different from the instant case, where Plaintiff is not only asserting false arrest but that he was the victim of excessive force including being beaten by officers while in custody. It is therefore unclear why the prior arrests would have any probative value as to Plaintiff's emotional distress in this case. Even if there was any probative value, the probative value is minimal given the lack of similar facts between the prior arrests and the instant case, while the potential for unfair prejudice is significant as prior arrests may suggest to a jury that Plaintiff is a bad actor. Compare with Torres v. City of Santa Clara, Case No. 5:13-cv-1475-PSG, 2014 WL 4145509, at *2 (N.D. Cal. Aug. 20, 2014) (rejecting use of prior arrests to show damages calculations because case did not involve subsequent events, a lack of similar facts limited probative value of the arrest history, and the unfair prejudice from prior bad act evidence was significant).

         The Court therefore GRANTS Plaintiff's first motion in limine.

         ii. Plaintiff's motion in limine no. 2 (Dr. Gustin's expert testimony)

         Plaintiff moves to preclude Defendants' expert, Dr. Gustin, from testifying as to Plaintiff's credibility. (Plf.'s Mots. in Limine at 6.) Dr. Gustin is an emergency medicine doctor who will testify as to whether the evidence supports Plaintiff's version of events. (Defs.' Opp'n to Mots. in Limine at 4.) Plaintiff argues that while Dr. Gustin may point out inconsistencies, he should not be permitted to state that Plaintiff or any other witness is untruthful. (Plf.'s Mots. in Limine at 7.) Defendants respond that Dr. Gustin will not offer an opinion as to Plaintiff's truthfulness, but that he should be allowed to opine on contradictions between the medical records and Plaintiff's deposition testimony, and to give his opinion on the likely cause of Plaintiff's injuries. (Defs.' Opp'n to Mots. in Limine at 4-5.)

         At the hearing, the Court confirmed that Defendants did not intend to ask Dr. Gustin if Plaintiff is being untruthful. Thus, the Court GRANTS Plaintiffs' second motion in limine, and will instruct Dr. Gustin not to opine as to Plaintiff's truthfulness. This does not preclude Dr. Gustin from opining on contradictions between the medical records and Plaintiff's testimony, and whether the medical records support Plaintiff's testimony.

         Iii. Defendants' motion in limine no. 1 (conditions of the safety cell)

         Defendants move to prohibit Plaintiff "from introducing any evidence or testimony about the conditions of the safety cell in the Berkeley City jail." (Defs.' Mots. in Limine at 1, Dkt. No. 1.) Defendants contend that this evidence is irrelevant because Plaintiff conceded he has no claim regarding the decision to house Plaintiff in a safety cell, and that the Court granted summary judgment on the claim. (Id. at 1; MSJ Ord. at 4 n.3, Dkt. No. 59.) Further, any probative value of the safety cell's conditions will be substantially outweighed by unfair prejudice to Defendants because "neither of them was involved in the decision to place plaintiff in a safety cell, " and will also be a "waste of time on collateral issues by forcing them to defend plaintiff's placement in the safety cell, a decision which neither Defendant made." (Defs.' Mots. in Limine at 3.) Plaintiff responds that the conditions are relevant because it was part of Plaintiff's observations after the alleged beating in the safety cell, which goes to his ability to accurately perceive his surroundings. (Plf.'s Opp'n to Mots. in Limine, Dkt. No. 82 at 1-2.) Further, Plaintiff has argued that he had no ankle injury when he was taken to the safety cell, but suffered an ankle injury while in the safety cell. (Id. at 1.) Testimony about the safety cell conditions is therefore relevant because the cell is constructed with a softer material and lacks fixtures or furniture, thus "lessen[ing] the possibility that plaintiff injured himself in that cell." (Id. at 2.)

         The Court finds that the condition of the safety cell is relevant. Here, Plaintiff's observations are part of his narrative of what occurred in the safety cell, specifically the aftermath of the alleged beating. The conditions of the safety cell are also highly relevant to whether Plaintiff could have injured himself in the safety cell, which would support his claim that his injuries were caused by being beaten.

         The Court also concludes that this evidence should not be excluded. Defendants have not shown that the evidence is prejudicial, as their only argument is that neither Defendant made the decision to move Plaintiff to a safety cell. (See Defs.' Mots. in Limine at 3.) That argument goes to relevance, not prejudice. Further, the Court disagrees that it is a collateral issue or a waste of time, as the safety cell conditions are probative of Plaintiff's explanation of how his ankle was broken. The Court DENIES Defendants' first motion in limine. Plaintiff is not, however, to discuss the safety cell conditions in the context of punishment.

         iv. Defendants' motion in limine no. 2 (criminal charges from the September 7, 2013 citation)

         Defendants request that the Court prohibit Plaintiff from introducing evidence that his September 7, 2013 citation was dismissed. (Defs.' Mots. in Limine at 4.) Plaintiff does not oppose, provided that the Court agree with the parties' stipulation to issue a jury instruction that the jury is not to consider whether there was a criminal case filed or its outcome. (Plf.'s Opp'n to Mots. in Limine at 3; Joint Pretrial Statement at 5, Dkt. No. 74.) The Court will issue the stipulated jury instruction, and therefore GRANTS Defendants' second motion in limine.

         v. Defendants' motion in limine no. 3 (Defendant Howe's police academy experience)

         Defendants request that the Court exclude evidence of Defendant Howe's attendance at the police academy and his decision not to pursue a police officer position. (Defs.' Mots. in Limine at 7.) Over a year after the September 7, 2013 events, Howe attended the Police Academy, but failed to pass after twice failing a scenario. (Howe Dep. at 36:10-20, Dkt. No. 70, Exh. C.) The two scenarios concerned a robbery and burglary, and Defendant Howe explained that he was told that he needed to communicate better with dispatch and his fellow officers, that his spatial relation to the actual scene was too far away, that his approach could have been better, and that his investigation could have been better. (Id. at 37:9-12, 20-24, 38:8-11.) Howe voluntarily left the Berkeley Police Department in April 2015. (Id. at 39:22-40:1.)

         Defendants argue that Howe's participation at the police academy is irrelevant to Plaintiff's excessive force claim because the academy attendance was a year after the September 7, 2013 events, and because his reasons for failing were not related to his duties as a jailor. (Defs.' Mots. in Limine at 8.) Plaintiff opposes, contending that it is evidence of "poor judgment." (Plf.'s Opp'n to Mots. in Limine at 3.) He suggests that Howe's failure to not get close enough to the scene is "indicative of fear, " and that "fear in a beating case is always in issue." (Id.) Further, the inability to complete the investigation is probative of Howe's ability to "perceive and report." (Id.)

         The Court agrees with Defendants that Howe's police academy experience is not relevant. The reasons Howe did not pass the police academy were related to his investigatory and communication skills with fellow officers. By contrast, Plaintiff accuses Howe of forcefully taking him into the safety cell and deliberately beating him. (Plf.'s Trial Brief at 2, Dkt. No. 65.) As Defendants point out, this alleged intentional use of excessive force is not "a question of 'judgment, ' related to whether he correctly analyzed certain robbery scenarios in the police academy." (Defs.' Mots. in Limine at 9.) Plaintiff also does not explain why fear would be an issue where a person deliberately participates in the beating of another individual. In short, Plaintiff has failed to show why Howe's police academy experience makes it more or less likely that he participated in beating Plaintiff.

         Even assuming the Howe's police academy experience was relevant, its minimal relevance is outweighed by unfair prejudice, namely the risk of giving the jury a negative impression of Howe for reasons unrelated to the facts of this case. The Court therefore GRANTS Defendants' third motion in limine.

         vi. Defendants' motion in limine no. 4 (prior citizen complaints)

         Defendants move to exclude evidence of prior citizen complaints against Defendant Ettare, none of which were sustained. (Defs.' Mots. in Limine at 9.) Neither party explains what these complaints concern. Defendants argue that the complaints are not relevant because they were not sustained, and that they would be unduly prejudicial by suggesting that Ettare committed prior wrongdoing. (Id. at 10-11.) Defendants also contend that the complaints should be excluded as prior bad acts under Rule 404(b), as a subsequent remedial measure under Rule 407, and as hearsay under Rule 802. (Id. at 11-12.) Plaintiff opposes on the ground that evidence of other wrongs or acts are admissible under Rule 404(b) to prove motive, intent, plan, knowledge, or absence of mistake or accident, although Plaintiff does not specify how such matters will be proven by the complaints at issue in this case. (Plf.'s Opp'n to Mots. in Limine at 4.) Further, Plaintiff contends the complaint itself is not a subsequent remedial measure under Rule 407.

         As an initial matter, the Court disagrees with Defendants' contention that the complaints should be excluded as a subsequent remedial measure under Rule 407. The Advisory Committee Notes make clear that Rule 407 "applies only to changes made after the occurrence that produced the damages giving rise to the action." Fed.R.Civ.P. 407 advisory committee's note to 1997 amendment. In short, Rule 407 does not apply to a subsequent remedial measure that is unrelated to the challenged harm in the instant case.[3] The Court finds, however, that given these complaints were unsustained, the probative value is fairly limited while the prejudicial value significant, as the filing of a complaint could suggest Ettare acted badly even if the complaint was ultimately found to be without merit. There would also be a risk of wasting time on a collateral issue of what resulted from the complaints, such as the investigation and why the complaint was unsustained. Further, if Plaintiff seeks to introduce the complaint for the truth of the matter contained therein, a hearsay issue will likely arise. The Court GRANTS Defendants' fourth motion in limine.

         VII. Defendants' motion in limine no. 5 (introduction of lost property)

         Defendants move to exclude evidence regarding Defendant Ettare losing Plaintiff's cell phone and wallet. (Defs.' Mots. in Limine at 12.) Defendants argue that this evidence is irrelevant because there is no claim for lost property in this case, and that lost property is not a proper measure of damages for an unlawful arrest cause of action. Rather, Defendants contend that Plaintiff can only recover his lost property through a tort claim per the California Tort Claims Act. (Id. at 13.) Plaintiff responds that he would not have lost his wallet and cell phone if not for the arrest, and that it therefore goes to damages under his § 1983 claim. (Plf.'s Opp'n to Mots. in Limine at 6.)

         In general, "[a] plaintiff who establishes liability for deprivations of constitutional rights actionable under 42 U.S.C. § 1983 is entitled to recover compensatory damages for all injuries suffered as a consequence of those deprivations." Borunda v. Richmond, 885 F.2d 1384, 1389 (9th Cir. 1988). Thus, "[t]he victim of the constitutional deprivation is entitled to compensation for economic harm, pain and suffering, and mental and emotional distress that results from the violations." Id. Plaintiff's cell phone and wallet were taken and lost during the course of the arrest, and thus constitute economic harm resulting from the alleged unlawful arrest. (See Ettare Dep. at 328:1-21, Dkt. No. 70, Exh. B.) Defendants' cases concern whether a plaintiff may bring a standalone § 1983 claim for lost property, not whether lost property is an appropriate measure of damages for a § 1983 claim that is not based on lost property. See Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) ("a negligent or intentional deprivation of a prisoner's property fails to state a claim under section 1983 if the state has an adequate post deprivation remedy"); Howard v. Dalisay, No. C 10-5655 LB, 2013 WL 5645193, at *4 (N.D. Cal. Oct. 16, 2013) (dismissing § 1983 claim based on stolen valuables). Because evidence of the lost cell phone and wallet goes to recoverable economic damages, the Court DENIES Defendants' fifth motion in limine. Defendant is not precluded from arguing that Plaintiff cannot be compensated without a finding of unlawful action.

         VIII. Defendants' motion in limine no. 6 (code of silence)

         Defendants move to exclude evidence implying there was a cover up or conspiracy, and to prevent Plaintiff from using language such as "code of silence, " "wall of silence, " "wall of blue, " "blue wall, " and "green wall." (Defs.' Mots. in Limine at 15.) Plaintiff does not oppose the request to exclude language such as "code of silence, " but argues that he should be able to point out evidence that "raise[s] an inference that the officers are covering for one another." (Plf.'s Opp'n to Mots. in Limine at 7.)

         Absent evidence, the Court agrees that Plaintiff may not suggest there was a cover up or conspiracy, with or without using language such as "code of silence." Courts have generally found such language and evidence to be irrelevant to whether a defendant used excessive force against a plaintiff, in addition to being highly prejudicial. Baltimore v. Haggins, No. 1:10-cv-931-LJO-JLT (PC), 2013 WL 4676455, at *6 (E.D. Cal. Aug. 30, 2013); Engman v. City of Ontario, No. EDCV 10-284 CAS (PLAx), 2011 WL 2463178, at *4 (C.D. Cal. June 20, 2011) (finding that the plaintiff could argue that the defendants' version of the facts is not credible, but that plaintiff's witnesses could not use terms such as "code of silence" or "wall of blue"); Jackson v. Mendez, Case No.: 1:11-cv-80-BAM (PC), 2015 U.S. Dist. LEXIS 154717, at *8-9 (E.D. Cal. Nov. 13, 2015) (finding that evidence concerning a conspiracy by officers to cover up the actions of other officers in excessive force case is irrelevant to the issues in the case and that development of the issue would consume an undue amount of time and confuse and mislead the jury). Further, inconsistency between Plaintiff's and Defendants' versions of the evidence is insufficient evidence of a conspiracy; "[t]hough Defendant may offer the testimony of other officers on the scene, the fact that their versions disagree with Plaintiff's-assuming they do-is insufficient to justify introduction of evidence that the testimony is due to a code of silence." Baltimore, 2013 WL 4676455, at *6.[4] The Court therefore GRANTS Defendants' sixth motion in limine. This ruling does not preclude Plaintiff from pointing out inconsistencies or arguing that witnesses are biased or not truthful because of their work relationship or friendship with Defendants. See Id. at *7; Jackson, 2015 U.S. Dist. LEXIS 154717, at *9.

         ix. Defendants' motion in limine no. 7 (Plaintiff's prior ...


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