Rubalcava v. City Of San Jose ( 2024 )

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 LIONEL RUBALCAVA, Case No. 20-cv-04191-BLF 8 Plaintiff, ORDER RE MOTIONS IN LIMINE 9 v. [Re: ECF 266, 267, 268, 269, 271, 273, 10 CITY OF SAN JOSE, et al., 274, 275, 276, 277] 11 Defendants. 12 13 The Court held the Final Pretrial Conference in this case on April 23, 2024, at which time 14 it issued oral rulings on the parties’ Motions in Limine.1 Those rulings are summarized as follows: 15 PLAINTIFF’S MOTIONS IN LIMINE 16 (1) Plaintiff’s Motion in Limine No. 1 to Introduce Evidence of Innocence (ECF 266) 17 In his Motion in Limine No. 1, Plaintiff seeks an order allowing him to introduce evidence 18 that he is innocent of the shooting that gave rise to his trial and conviction for attempted murder. 19 Defendants oppose the motion and affirmatively seek to exclude evidence of innocence in their 20 own Motion in Limine No. 1, which is opposed by Plaintiff. The Court considers the arguments 21 presented in both sides’ motions on evidence of innocence, and the oppositions thereto, in ruling 22 on Plaintiff’s Motion in Limine No. 1. 23 24 1 The Court engaged in a colloquy with counsel regarding its jurisdiction to address pretrial motions given Defendants’ interlocutory appeal of the denial of qualified immunity. See City of 25 Los Angeles, Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 886 (9th Cir. 2001) (interlocutory appeal divests district court of jurisdiction over issues involved in appeal); Chuman 26 v. Wright, 960 F.2d 104, 105 (9th Cir. 1992) (appeal of denial of qualified immunity divests district court of jurisdiction to proceed with trial). The Court stated its view that it retains 27 jurisdiction to rule on the parties’ pending Motions in Limine, as those motions address issues 1 Plaintiff asserts that evidence of his innocence should be admitted at trial because it is 2 highly relevant to both liability and damages. Defendants argue that evidence of Plaintiff’s 3 innocence should be excluded because such evidence is irrelevant to Plaintiff’s claims, the 4 prejudicial effect of such evidence would outweigh any probative value, and the evidence of 5 innocence consists in large part of hearsay. 6 a. Relevance 7 Under Federal Rule of Evidence 401, “[e]vidence is relevant if: (a) it has any tendency to 8 make a fact more or less probable than it would be without the evidence; and (b) the fact is of 9 consequence in determining the action.” Fed. R. Evid. 401. “Evidence Rule 402 provides that 10 relevant evidence is admissible unless another rule or federal law provides otherwise, and that 11 irrelevant evidence is inadmissible.” Crawford v. City of Bakersfield, 944 F.3d 1070, 1077 (9th 12 Cir. 2019); see also Fed. R. Evid. 402 (providing that relevant evidence is admissible unless 13 precluded by the United States Constitution, a federal statute, the Federal Rules of Evidence, or a 14 rule prescribed by the United States Supreme Court). “Rule 401’s basic standard of relevance . . . 15 is a liberal one.” Crawford, 944 F.3d at 1077 (quotation marks and citation omitted, ellipses in 16 original). 17 Applying this liberal standard of relevance, the Court finds that evidence of Plaintiff’s 18 innocence is relevant to both liability and damages. With respect to liability, Plaintiff’s claims are 19 grounded primarily in his contentions that Defendants fabricated their police reports regarding 20 witness identifications of Plaintiff as the shooter (Claim 1 for fabrication of evidence), failed to 21 disclose the true circumstances of the eyewitness identifications of Plaintiff (Claim 2 for violations 22 of Brady), and maliciously prosecuted him based on the allegedly fabricated police reports, 23 without any substantial evidence of his guilt (Claim 3 for malicious prosecution). A central 24 disputed issue is what happened during the initial, unrecorded identification procedures 25 Defendants conducted with three trial witnesses: shooting victim Raymond Rodriguez, his brother 26 Eric Millan, and his neighbor David Gonzalez, Jr. Plaintiff claims that those witnesses did not 27 immediately and unequivocally identify Plaintiff as the shooter as described in Defendants’ police 1 violation of Plaintiff’s civil rights. At Plaintiff’s criminal trial, the Government argued that it was 2 highly unlikely that multiple witnesses would have positively identified Plaintiff as the shooter if 3 he were not the shooter. Using similar logic, Plaintiff argues in the present case that it is highly 4 unlikely that multiple witnesses would have positively identified an innocent man as the shooter 5 absent misconduct by the defendant officers. The Court agrees with Plaintiff that proof of his 6 innocence has a tendency to make it more probable that Defendants falsified their police reports, 7 and less probable that Defendants accurately reported that three separate witnesses unequivocally 8 identified Plaintiff as the shooter. 9 Defendants argue that after-acquired evidence of Plaintiff’s innocence, which was not 10 known to Defendants at the time of the investigation, has no relevance to whether Defendants 11 fabricated evidence or engaged in other alleged misconduct. Defendants contend that the only 12 relevant facts are those known to Defendants at the time of the investigation. That argument is 13 foreclosed by the Ninth Circuit’s holding in Crawford, a case arising from a police officer’s fatal 14 shooting of the plaintiff’s son, Michael Dozer. See Crawford, 944 F.3d at 1072. Dozer had a 15 history of schizophrenia and was behaving in an erratic fashion at a gas station when approached 16 by the officer. See id. at 1074-75. The officer shot and killed Dozer less than a minute after 17 arriving on the scene. See id. at 1074. The plaintiff sued the officer and his city employer under 18 federal and state law, arguing at trial that Dozer was mentally ill, the officer was trained to 19 recognize signs of mental illness and respond with minimal force, and the officer acted negligently 20 and with excessive force when he failed to act pursuant to that training instead of shooting Dozer. 21 See id. at 1077-78. After a three-day trial, the jury returned a special verdict finding that the 22 plaintiff had failed to prove the officer acted negligently or with excessive force, and the district 23 court entered judgment for the defendants. See id. at 1076. 24 The plaintiff appealed, asserting that the district court erred in excluding her proposed 25 testimony regarding her own observations of Dozer’s past conduct arising from his mental illness. 26 See Crawford, 944 F.3d at 1078. The district court found that the plaintiff’s proposed testimony 27 was not relevant on the ground that, at the time of the shooting, the officer did not know about the 1 exclusion of the plaintiff’s proposed testimony was reversible error, reasoning that: “Evidence 2 that Dozer had previously behaved in ways consistent with mental illness and had been taken to 3 mental health providers for treatment, makes it more likely that he continued to suffer from mental 4 illness on the day of the shooting. In turn, whether Dozer was in fact mentally ill that day is 5 relevant to whether he would have appeared to be mentally ill, and thus to whether [the officer] 6 knew or should have known that Dozer was mentally ill; after all, the existence of some 7 underlying fact tends to make it more likely that a person knew or should have known that fact.” 8 Id. at 1078-79. 9 Crawford makes clear that facts not known to officer defendants at the time of the conduct 10 giving rise to the plaintiff’s claims may be relevant to a determination of liability. In Crawford, 11 evidence that Dozer in fact was mentally ill was relevant to the plaintiff’s claim that the defendant 12 officer violated Dozer’s rights by shooting him. Here, evidence that Plaintiff in fact is innocent is 13 relevant to Plaintiff’s claim that Defendants violated Plaintiff’s rights by falsifying their police 14 reports. 15 Defendants cite several cases for the proposition that evidence of a civil rights plaintiff’s 16 guilt or innocence is irrelevant to claims like those at issue here. Those cases are distinguishable, 17 as the courts did not address whether evidence of the plaintiff’s innocence made it more likely that 18 the defendant officers violated the plaintiff’s civil rights. For example, in Milla v. City of Los 19 Angeles, No.: 2:16-cv-00134-FWS-MRW, 2023 WL 4291467, at *2 (C.D. Cal. June 9, 2023), the 20 plaintiff asserted federal constitutional claims for unlawful arrest without probable cause, 21 malicious prosecution, and fabrication of evidence, all arising from police officers’ alleged 22 misconduct during their investigation of an attempted murder. The district court granted the 23 plaintiff’s motion in limine to exclude evidence that a jury found him guilty, and also granted the 24 defendants’ motion in limine to exclude after-acquired evidence of actual innocence, holding that 25 “[e]vidence of Plaintiff’s guilt or innocence is not relevant to Plaintiff’s claims,” because those 26 claims turned solely on proof of the defendants’ allegedly culpable conduct. See id. at *5, 11. In 27 Wilson v. City of Los Angeles, No. CV 18-5775-KS, 2020 WL 7296507, at *5 (C.D. Cal. Dec. 9, 1 investigation, the district court excluded evidence of the plaintiff’s guilt or innocence under the 2 rationale that “demonstrating Defendants’ liability on these claims requires only evidence of the 3 Defendants’ conduct, not Plaintiff’s culpability (or lack thereof) for the Hanson murder.” Wilson 4 v. City of Los Angeles, No. CV 18-5775-KS, 2020 WL 7296507, at *5 (C.D. Cal. Dec. 9, 2020). 5 In neither case did the court address the relevance of a plaintiff’s innocence when such evidence 6 made it more likely that the defendants engaged in culpable conduct. Thus, this Court does not 7 find Milla, Wilson, and the other cases cited by Defendants on the issue of innocence to be helpful 8 here, as they do not address the specific relevance argument advanced by Plaintiff and supported 9 by Crawford. 10 Neither side cites controlling Ninth Circuit authority as to the relevance of innocence to the 11 issue of damages in a civil rights case. However, decisions from other circuits hold that evidence 12 of innocence is relevant to damages, because “[a] jury that believed the plaintiff was guilty of the 13 crime would award lower damages because the imprisonment is attributable to the person’s own 14 actions as well as the civil defendants’ misbehavior[.]” Parish v. City of Elkhart, 702 F.3d 997, 15 999 (7th Cir. 2012); see also Ayers v. City of Cleveland, 773 F.3d 161, 169 (6th Cir. 2014) 16 (finding evidence of innocence relevant to issue of damages in civil rights action alleging 17 fabrication of evidence and Brady violations). Put another way, “if a jury believes a malicious 18 prosecution plaintiff was factually innocent, the jury might award more emotional distress 19 damages – because a criminal defendant who knows he or she is innocent likely feels significantly 20 more distress than one who knows he or she is guilty but nonetheless sees a chance to have the 21 charges dismissed due to police misconduct.” Sanchez v. Duffy, 416 F. Supp. 3d 1131, 1155-56 22 (D. Colo. 2018). Defendants do not dispute the relevance of innocence evidence to the issue of 23 damages, although as discussed below they do argue that the issues of liability and damages 24 should be bifurcated. 25 Under the liberal standard applicable to a determination of relevance under Rule 401, see 26 Crawford, 944 F.3d at 1077, the Court finds that evidence of Plaintiff’s factual innocence is 27 relevant to both liability and damages. At the hearing, the Court indicated that it might permit 1 finding of actual innocence, but not other types of evidence, such as new expert testimony 2 regarding the location of Plaintiff’s cellular telephone at the time of the shooting. The Court has 3 reconsidered, and now concludes that all evidence of factual innocence is relevant, including the 4 cellular telephone evidence. However, the Court would entertain a defense request for a limiting 5 instruction regarding the cellular telephone evidence. 6 b. Prejudice 7 “Rule 403 provides that relevant evidence may be excluded, among other reasons, if its 8 probative value is substantially outweighed by the danger of unfair prejudice.” United States v. 9 LeMay, 260 F.3d 1018, 1027 (9th Cir. 2001) (quotation marks and citation omitted); see also Fed. 10 R. Evid. 403 (“The court may exclude relevant evidence if its probative value is substantially 11 outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, 12 misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”). 13 Defendants argue that any probative value of innocence evidence would be outweighed by 14 the danger that such evidence would result in unfair prejudice to Defendants. According to 15 Defendants, the jury will conflate the issue of Plaintiff’s innocence with the distinct issue of 16 Defendants’ civil liability, and will attempt to compensate Plaintiff for being wrongfully convicted 17 by improperly imposing liability on Defendants. This argument assumes that the jury will ignore 18 instructions from the Court regarding their role. However, “[a] jury is presumed to follow its 19 instructions.” Spencer v. Peters, 857 F.3d 789, 803 (9th Cir. 2017) (quotation marks and citation 20 omitted). Defendants also argue that holding a trial-within-a-trial on the issue of innocence likely 21 would complicate the trial and confuse the jury, citing cases in which district courts exercised their 22 discretion to exclude evidence of innocence on those bases. See, e.g., Vargas v. City of Los 23 Angeles, No. 2:16-cv-08684-SVW-AFM, 2020 WL 10789578, at *8 (C.D. Cal. Feb. 18, 2020) 24 (“[T]he introduction of ‘factual innocence’ evidence would have further confused the jury with 25 substantial testimony on a collateral issue.”). This Court does not choose to exercise its discretion 26 in the same fashion, given the relevance of evidence of Plaintiff’s innocence and the availability of 27 appropriate jury instructions to avoid confusion regarding the jury’s role. 1 App’x 411 (9th Cir. 2018), is not well-taken. In Smith, the Ninth Circuit found that the district 2 court had not abused its discretion under Rule 403 in prohibiting the parties from using the terms 3 “guilt” and “innocence” at trial. See id. at 411. However, that determination was made in the 4 context of the Ninth Circuit’s observation that the district court had permitted the plaintiff “to 5 present evidence that supported his innocence and established his wrongful conviction.” Id. In 6 fact, the Ninth Circuit assumed that the district court’s exclusion of evidence that the California 7 Victim Compensation and Government Claims Board (“VCB”) had found the plaintiff “innocent” 8 was error, but concluded that such error was harmless in light of the district court’s admission of 9 evidence that the police department and district attorney’s office lost confidence in the plaintiff’s 10 conviction after the sole eyewitness at the plaintiff’s murder trial recanted, and that the superior 11 court had vacated the plaintiff’s conviction. See id. at 411-12. 12 Defendants have failed to show that evidence of innocence would be unduly prejudicial 13 and thus subject to exclusion in the present case. Defendants’ prejudice argument is particularly 14 unpersuasive given Defendants’ position throughout this litigation that Plaintiff actually 15 committed the crime for which he was convicted. Under those circumstances, the Court finds that 16 Plaintiff must be allowed to present evidence of his actual innocence to balance the scales. 17 Moreover, the Court declines to adopt Defendant’s suggestion that any evidence of innocence be 18 limited to a stipulated statement that Plaintiff’s conviction was vacated. Such a statement could 19 give rise to a misimpression that Plaintiff’s conviction was vacated on a technicality. 20 c. Hearsay 21 Defendants assert that Plaintiff’s evidence of innocence consists largely of hearsay. 22 However, they support that assertion with a single line of argument that “[t]he state-court ‘factual 23 innocence’ order – which necessarily consists of hearsay, Fed. R. Evid. 801, 802 – has a 24 specialized meaning not understood by a lay jury.” Defs.’ MIL 1 at 3, ECF 273. Defendants’ 25 hearsay argument is not sufficiently fleshed out for this Court to address here. 26 d. Conclusion re Evidence of Innocence 27 Plaintiff’s Motion in Limine No. 1, seeking an order allowing him to introduce evidence 1 (2) Plaintiff’s Motion in Limine No. 2 to Exclude Evidence of Plaintiff’s Alleged Bad 2 Acts (ECF 267) 3 In his Motion in Limine No. 2, Plaintiff seeks to exclude “bad acts” evidence, including: 4 Plaintiff’s (1) criminal history, including his juvenile record, arrests, and charges that did not lead 5 to any convictions; (2) school and prison disciplinary records; (3) use of drugs and alcohol; and 6 (4) dating history. In opposition, Defendants argue that granting Plaintiff’s motion would 7 foreclose a significant amount of relevant evidence. 8 Plaintiff argues that his prior convictions cannot be used for impeachment purposes under 9 Federal Rule of Evidence 609(b) because they are more than a decade old and are not probative of 10 truthfulness. See Fed. R. Evid. 609(b) (Evidence of conviction more than 10 years old is 11 admissible only if “its probative value, supported by specific facts and circumstances, 12 substantially outweighs its prejudicial effect.”). Plaintiff also argues that neither his juvenile 13 history nor arrests that did not lead to convictions can be used for impeachment purposes. See 14 Fed. R. Evid. 609(d) (evidence of a juvenile adjudication is admissible only in a criminal case and 15 only if certain requirements are met); U.S.A. v. Defendant(s), No. 2:19-CR-00595-CAS-1, 2021 16 WL 1127163, at *6 (C.D. Cal. Mar. 24, 2021) (“Typically, evidence of prior arrests is not 17 probative of truthfulness and thus may not be inquired into on cross examination.”). To the extent 18 Defendants seek to use Plaintiff’s criminal history as propensity evidence under Federal Rule of 19 Evidence 404(b), Plaintiff argue that his convictions do not fall within one of the limited 20 exceptions to the general rule that prior crimes are not admissible to prove a person’s character 21 and conduct in accordance with that character. See Fed. R. Evid. 404(b)(1), (b)(2). Even if any 22 evidence regarding his criminal history were admissible, Plaintiff argues, it should be excluded as 23 unduly prejudicial under Rule 403. Plaintiff likewise argues that any evidence regarding his drug 24 and alcohol use, and his dating history, should be excluded as irrelevant under Rule 401 and 25 unduly prejudicial under Rule 403. 26 In response, Defendants assert that their knowledge of Plaintiff’s criminal history and gang 27 activity at the time of his arrest is highly relevant to the reasonableness of their conduct in 1 gang activity is relevant to damages, arguing that “prison for a hardened criminal is not the same 2 as prison for the first-time offender.” Defs.’ Opp. to Pl.’s MIL 2 at 2, ECF 296. 3 The parties’ briefing on this motion does not provide sufficient information regarding what 4 bad acts evidence Defendants will seek to admit, and the purpose of such evidence. To the 5 contrary, it appears that Defendants are not intending to introduce such evidence as bad acts, but 6 only to demonstrate information known to them during the investigation. In essence, Plaintiff asks 7 the Court to issue a blanket ruling in a vacuum. The Court cannot do so, and therefore will deny 8 Plaintiff’s motion without prejudice to Plaintiff’s ability to make all appropriate objections to 9 proffered bad acts evidence at trial. Based on the record before it, the Court can offer only the 10 general observations that Plaintiff will not be permitted to sanitize the evidence presented to the 11 jury to omit all reference to his criminal history and gang affiliation, which reasonably could have 12 caused Defendants to suspect Plaintiff of involvement in the shooting. However, Defendants will 13 not be permitted to use bad acts evidence absent a showing that the evidence is admissible, 14 relevant, and not unduly prejudicial to Plaintiff. 15 Plaintiff’s Motion in Limine No. 2 is DENIED without prejudice to objections to bad acts 16 evidence at trial. 17 (3) Plaintiff’s Motion in Limine No. 3 to Exclude Gang-Related Evidence (ECF 268) 18 In his Motion in Limine No. 3, Plaintiff seeks to exclude evidence of his prior gang history 19 beyond the undisputed facts that he was formerly affiliated with the Norteño gang West Side Mob, 20 and that he was known to the police because of that affiliation. Plaintiff cites authority for the 21 general proposition that “evidence relating to gang involvement will almost always be prejudicial 22 and will constitute reversible error.” Kennedy v. Lockyer, 379 F.3d 1041, 1055 (9th Cir. 2004). In 23 opposition, Defendants argue that Plaintiff’s affiliation with West Side Mob, and evidence of gang 24 activity involving West Side Mob, are central to this case. Defendants argue that their knowledge 25 of Plaintiff’s gang affiliation goes to the reasonableness of their conduct. Defendants also argue 26 that the issue of causation – whether their alleged misconduct caused Plaintiff’s 17-year 27 incarceration – must be determined in the context of all the evidence that was before the jury at 1 Plaintiffs again ask the Court to rule in a vacuum. Some gang-related evidence clearly will 2 be admissible as directly relevant to Plaintiff’s claim that Defendants fabricated a feud between 3 two Norteño factions, and to the reasonableness of Defendants’ actions in focusing their 4 investigation on Plaintiff. However, it appears that other gang-related evidence, for example, 5 evidence of gang-related crimes committed by third parties, may be only marginally relevant and 6 unduly prejudicial to Plaintiff. The Court cannot offer meaningful guidance regarding the 7 admissibility of gang-related evidence without knowing how Plaintiff’s case will be presented and 8 what specific evidence will be offered by Defendants. 9 Plaintiff’s Motion in Limine No. 3 is DENIED without prejudice to objections to gang- 10 related evidence at trial. 11 (4) Plaintiff’s Motion in Limine No. 4 to Exclude Impermissible Third-Party Evidence 12 and Testimony (ECF 269) 13 In his Motion in Limine No. 4, Plaintiff seeks to exclude three separate categories of 14 evidence: (1) inadmissible testimony from third party witnesses regarding legal opinions or 15 opinions on credibility; (2) evidence or argument that third parties are responsible for Plaintiff’s 16 wrongful conviction; and (3) evidence or argument about settlement, including with dismissed 17 parties, or payment under California’s erroneous conviction statute. In essence, Plaintiff has 18 attempted to expand the Court’s limit of five motions in limine per side by combining three 19 motions in limine into one. The Court addresses only the first motion and strikes the other two, 20 because they exceed the permitted number of motions in limine. 21 Plaintiff’s motion to exclude testimony from third party witnesses is directed to the 22 prosecutor in Plaintiff’s criminal case, Deputy District Attorney Mark Duffy. Plaintiff seeks to 23 preclude Mr. Duffy from offering the legal conclusion that there was probable cause to charge and 24 prosecute Plaintiff, either as an expert witness or as a lay witness, citing a number of cases 25 precluding witnesses from testifying to a matter of law amounting to a legal conclusion. See, e.g., 26 Trulove v. D’Amico, No. 16-CV-050 YGR, 2018 WL 1090248, at *1 (N.D. Cal. Feb. 27, 2018) 27 (excluding expert testimony of former district attorney as to whether there was probable cause to 1 attempt to buttress the testimony of other witnesses by vouching for such testimony or stating that 2 he believed the testimony. 3 In opposition, Defendants point out that they can defeat Plaintiff’s claims of fabrication 4 and malicious prosecution by establishing that Mr. Duffy would have brought charges, and the 5 judge at the preliminary hearing would have found probable cause, even if the allegedly fabricated 6 evidence were disregarded. See Caldwell v. City & Cnty. of San Francisco, 889 F.3d 1105, 1117- 7 18 (9th Cir. 2018). Defendants argue that under these circumstances, it is entirely appropriate for 8 them to present Mr. Duffy’s testimony about what facts he knew and relied on in going forward 9 with the prosecution of Plaintiff. 10 The Court agrees with Plaintiff that Mr. Duffy may not testify as to legal conclusions such 11 as whether there was probable cause to charge Plaintiff. Nor may Mr. Duffy vouch for the 12 credibility of witnesses who will testify at trial. However, because Mr. Duffy was the prosecutor 13 who made the charging decision, Mr. Duffy may testify as to what information he relied on in 14 making that decision. 15 Plaintiff’s Motion in Limine No. 4 is GRANTED as to expert or lay opinion regarding 16 legal conclusions. However, Mr. Duffy may testify as to the bases for his charging decision and 17 any other matter within his knowledge as a percipient witness. This ruling is without prejudice to 18 Plaintiff’s right to make appropriate objections to Mr. Duffy’s testimony at trial. 19 (5) Plaintiff’s Motion in Limine No. 5 to Exclude Inadmissible Opinions from Dr. Gaskell 20 and Dr. Steward (ECF 271) 21 In his Motion in Limine No. 5, Plaintiff seeks to limit the testimony of Defendants’ rebuttal 22 psychiatric expert, Dr. Steven Gaskell, and to exclude the opinions of Defendants’ economics 23 expert, Dr. Dwight Steward. Plaintiff again attempts to expand the Court’s limit of five motions in 24 limine per side, this time by combining two motions addressing two different experts. The Court 25 considers only the first motion addressing Dr. Gaskell, and strikes the second motion addressing 26 Dr. Steward. 27 As part of his damages case, Plaintiff intends to offer the testimony of his psychiatric 1 Plaintiff’s incarceration has caused him significant psychological problems, including depression, 2 anxiety, and PTSD. Defendants intend to offer the opinion of their rebuttal psychiatric expert, Dr. 3 Gaskell, that Dr. Woods’ opinions regarding the effects of incarceration fail to account for the 4 psychological effects of other experiences Plaintiff had before going to prison. Among other 5 things, Dr. Gaskell opines that Plaintiff suffered from antisocial personality disorder. 6 Plaintiff contends that Dr. Gaskell’s opinion regarding antisocial personality disorder goes 7 beyond rebuttal of Dr. Woods’ opinion and should be excluded. Rebuttal experts may testify 8 “solely to contradict or rebut evidence on the same subject matter identified” by the opposing 9 expert witness. Optronic Techs., Inc. v. Ningbo Sunny Elec. Co., No. 5:16-CV-06370-EJD, 2019 10 WL 4780183, at *6 (N.D. Cal. Sept. 30, 2019), aff’d, 20 F.4th 466 (9th Cir. 2021); see also Fed. 11 R. Civ. P. 26(a)(2)(D)(ii). Defendants argue that Dr. Gaskell’s opinion is proper rebuttal to Dr. 12 Woods’ diagnosis. Defendants also argue that the Court should not consider Plaintiff’s motion to 13 exclude Dr. Gaskell on the merits, because it should have been brought during the Daubert 14 proceedings previously heard by the Court. 15 The Court finds unpersuasive Defendant’s argument that Plaintiff was required to raise his 16 challenge to Dr. Gaskell’s opinion in the Daubert proceedings. In the Court’s view, the motion is 17 not properly characterized as a Daubert motion, because it does not challenge Dr. Gaskell’s 18 qualifications or methodology. Rather, the motion asserts that Dr. Gaskell’s opinion exceeds the 19 scope permitted under Federal Rule of Civil Procedure 26. However, the Court agrees with 20 Defendants that Dr. Gaskell’s opinion constitutes proper rebuttal. Dr. Woods has offered an 21 opinion that Plaintiff has suffered certain symptoms and psychological conditions as a result of his 22 prison sentence, and Dr. Gaskell has offered a rebuttal opinion regarding the cause of Plaintiff’s 23 symptoms and Plaintiff’s diagnosis. 24 P Motion in Limine No. 5 is DENIED. Dr. Gaskell’s testimony is limited to the issue of 25 Plaintiff’s damages. 26 27 1 DEFENDANTS’ MOTIONS IN LIMINE 2 (1) Defendants’ Motion in Limine No. 1 to Exclude Improper Evidence and Argument 3 Regarding Innocence (ECF 273) 4 Defendants’ Motion in Limine No. 1 seeks to exclude evidence and argument regarding 5 Plaintiff’s innocence. For the reasons discussed above in the section addressing Plaintiff’s Motion 6 in Limine No. 1, Defendants’ Motion in Limine No. 1 is DENIED. 7 (2) Defendants’ Motion in Limine No. 2 to Bifurcate Trial into Separate Liability and 8 Damages Phases (ECF 274) 9 In their Motion in Limine No. 2, Defendants move to bifurcate the trial into separate 10 liability and damages phases. Plaintiff opposes bifurcation. 11 “Federal Rule of Civil Procedure 42(b) permits a court to order a separate trial of separate 12 claims or issues ‘[f]or convenience, to avoid prejudice, or to expedite and economize.’” Estate of 13 Diaz v. City of Anaheim, 840 F.3d 592, 601 (9th Cir. 2016) (quoting Fed. R. Civ. P.42(b)). A 14 court might bifurcate a trial to avoid thorny questions by dealing with easier, dispositive issues, or 15 to avoid the risk of prejudice. See id. Moreover, “Rule 42(b) gives courts the authority to separate 16 trials into liability and damage phases.” Id. (quotation marks and citation omitted). 17 Defendants assert that bifurcation is necessary in this case because Plaintiff likely will 18 present highly emotional testimony regarding his life before and after incarceration, and the 19 hardships he endured while in prison. Defendants argue that they will be unduly prejudiced if the 20 jury hears that evidence during the liability phase, because the jury is likely to feel sympathy for 21 Plaintiff’s suffering and for that reason hold Defendants liable despite Plaintiff’s failure to prove 22 the elements of his claims. Defendants cite several cases in which the district court exercised its 23 discretion to bifurcate, or even trifurcate, to avoid that risk. See, e.g., Ignacio Ixta, Jr., No. 2:22- 24 cv-02468-MCS-AFM, 2024 WL 650195, at *8 (C.D. Cal. Feb. 2, 2024) (in civil rights action 25 alleging Brady violations and related claims, district court trifurcated trial to address in turn 26 liability, affirmative defenses, and damages); Milla, 2023 WL 4291467, at *6 (“The court finds 27 bifurcation would avoid potential confusion of issues for the jurors and prevent prejudice to both 1 Plaintiff contends that bifurcation is not warranted, citing a number of cases holding that 2 “bifurcation is the exception rather than the rule of normal trial procedure within the Ninth 3 Circuit.” Medtronic Minimed Inc. v. Animas Corp., No. CV 12-04471 RSWL RZX, 2013 WL 4 3233341, at *1 (C.D. Cal. June 25, 2013) (quotation marks and citation omitted); see also French 5 v. City of Los Angeles, No. EDCV 20-00416 JGB (SPx), 2022 WL 2189649, at *13 (C.D. Cal. 6 May 10, 2022) (denying motion for judgment as a matter of law for failure to bifurcate and 7 reiterating that bifurcation was not warranted in excessive force case despite inflammatory nature 8 of testimony regarding physical and mental injuries). Plaintiff argues that bifurcation could 9 motivate the jury to reach a defense verdict so they would not have to go on to a second phase, and 10 that in the event the jury were to find liability, bifurcation would needlessly prolong the trial. 11 Having considered the parties’ arguments in light of the relevant case law, the Court in the 12 exercise of its discretion declines to bifurcate the liability and damages phases here. It does 13 appear that bifurcation is the exception rather than the rule in the Ninth Circuit. Moreover, one of 14 the key issues in the case – the issue of Plaintiff’s factual innocence – relates to both liability and 15 damages as discussed above. The same witnesses would have to testify on that issue twice if the 16 Court were to grant the motion to bifurcate. Thus, bifurcation would not serve judicial economy, 17 and would needlessly prolong the trial unless the jury were to find Defendants not liable. With 18 respect to Defendants’ concern that jury sympathy will be elicited by Plaintiffs’ evidence 19 regarding the hardships and effects of incarceration, district courts in the Ninth Circuit routinely 20 address such concerns by appropriate jury instructions rather than bifurcation. See, e.g., A.G.1 v. 21 City of Fresno, No. 1:16-CV-1914-JLT-SAB, 2023 WL 3752008, at *7 (E.D. Cal. June 1, 2023) 22 (finding that concerns about potential prejudice may be addressed with appropriate limiting 23 instruction rather than bifurcation); Scott v. City of Pasadena, No. CV0707856MMMAJWX, 2014 24 WL 12806259, at *8 (C.D. Cal. Feb. 6, 2014) (finding in civil rights case that “no additional 25 convenience or efficiency will be achieved if liability and damages are bifurcated”). 26 The Court is not persuaded by Defendants’ argument that the Ninth Circuit’s opinion in 27 Estate of Diaz compels a different result. Estate of Diaz arose from a police officer’s fatal 1 mother. See Estate of Diaz, 840 F.3d at 595. “[U]nder the guise of impeaching [the mother’s] 2 testimony that she loved her son, Defendants introduced (over repeated objection) photographs of 3 Diaz posing with firearms and making gang signs.” Id. at 601. Defendants introduced other 4 inflammatory and prejudicial evidence as well. See id. The Ninth Circuit found that it was 5 entirely unclear whether this evidence was relevant to liability, and concluded that “[e]ven 6 assuming that a portion of this evidence had some relevance to damages, it never should have been 7 combined with the liability phase.” Id. at 602. Noting that the district court had already bifurcated 8 punitive damages, the Ninth Circuit determined that the district court abused its discretion by not 9 also “[b]ifurcating from the liability phase the testimony actually relevant to compensatory 10 damages” so as to avoid prejudice to the plaintiffs. Id. 11 The Ninth Circuit made clear that it was “not announcing a rule that requires district courts 12 always, usually, or frequently to bifurcate damages from liability.” Estate of Diaz, 840 F.3d at 13 603. To the contrary, the Estate of Diaz court emphasized that “[d]istrict courts still have the 14 broad discretion to make these decisions.” Id. However, where “graphic and prejudicial evidence 15 about the victim has little, and in large part no, relevance to the liability issue, district courts 16 should bifurcate to avoid situations like the one” addressed in Estate of Diaz. Id. The present case 17 does not involve the same concerns. Here, much of the evidence regarding liability and damages 18 is intertwined, and the Court is satisfied that any evidence relating solely to damages may be 19 addressed with appropriate limiting instructions. 20 Motion in Limine No. 2 is DENIED. 21 (3) Defendants’ Motion in Limine No. 3 to Order Witness Testimony and Preclude 22 Leading Questions (ECF 275) 23 In their Motion in Limine No. 3, Defendants ask the Court for an order (1) permitting 24 Defendants to examine witnesses Raymond Rodriguez and Eric Millan before Plaintiff; 25 (2) prohibiting Plaintiff from using the same witnesses’ deposition testimony for any purpose; and 26 (3) prohibiting leading questions of these witnesses during any examination at trial by Plaintiff, 27 including any question prefaced with the phrase “would it be fair to say.” The gist of Defendants’ 1 questioning two critical witnesses Plaintiff intends to call during his case in chief – victim 2 Rodriguez and his brother Millan – and that to prevent such violations the Court should depart 3 from standard trial procedures to allow Defendants to question the witnesses first. Defendants 4 also ask that Plaintiff be precluded from using those witnesses’ deposition testimony, which 5 according to Defendants was elicited in violation of the Federal Rules of Evidence, or to ask those 6 witnesses leading questions under any circumstances. 7 Plaintiff opposes the motion, arguing that under standard trial procedures he is allowed to 8 present his case first, and to order his witnesses as he sees fit. Plaintiff also disputes Defendants’ 9 characterization of the witnesses’ deposition testimony, as well as Defendants’ assertion that 10 Plaintiff cannot establish that the witnesses may be treated as hostile and thus asked leading 11 questions. In essence, Plaintiff contends that his counsel know how to conduct themselves during 12 trial and that Defendants’ counsel may make any objections they deem appropriate. 13 The Court is frankly startled by Defendants’ motion to examine Plaintiff’s witnesses 14 before Plaintiff does. The motion does not appear to be supported by any of the cases cited by 15 Defendants. To the extent Defendants challenge the admissibility of the witnesses’ deposition 16 testimony, they are free to use their trial time to ask the Court to review each challenged 17 deposition excerpt. Defendants are advised that the Court reads slowly and will need the portions 18 before and after each challenged deposition excerpt for context. Finally, the Court is not in a 19 position to prejudge the manner in which Plaintiff’s counsel questions witnesses at trial. 20 Defendants’ Motion in Limine No. 3 is DENIED. 21 (4) Defendants’ Motion in Limine No. 4 to Exclude Evidence and Argument Regarding 22 Dismissed or Abandoned Parties and Claims (ECF 276) 23 In their Motion in Limine No. 4, Defendants ask the Court to exclude evidence and 24 argument regarding dismissed or abandoned parties and claims. For the most part, the motion is 25 unopposed by Plaintiff. While Plaintiff disputes Defendants’ characterization of the Court’s 26 summary judgment ruling as limiting his right to present certain alternate theories of liability to 27 the jury, Plaintiff indicated on the record that he does not intend to pursue those alternate theories 1 claims is admissible. For example, while Plaintiff has abandoned previously asserted claims based 2 || on alleged witness protection payments, Plaintiff points out that evidence of such payments may 3 be admissible for impeachment under certain circumstances. 4 Defendants’ Motion in Limine No. 4 is GRANTED. This ruling does not preclude Plaintiff 5 || from presenting evidence relating to dismissed parties or claims if such evidence also relates to the 6 || remaining parties and claims and/or may be used for impeachment. 7 (5) Defendants’ Motion in Limine No. 5 to Preclude Plaintiff from Eliciting Improper 8 Lay Opinions on Policy and Probable Cause (ECF 277) 9 In their Motion in Limine No. 5, Defendants ask the Court to preclude Plaintiff from asking 10 || Defendants about their understanding of SJPD policies. In opposition, Plaintiff asserts that he 11 may question the defendant officers about their own understanding of the policies governing their 12 || conduct, for example, their understanding of identification procedures and what constitutes a 5 13 positive identification. The Court agrees, as such testimony would be directly relevant to the 14 || jury’s assessment of Defendants’ state of mind. Plaintiff also assert that the City of San Jose’s 3 15 || Rule 30(b)(6) witness, Stephen Donohue, may be questioned about the City’s policies. The Court 16 agrees, as Mr. Donohue was disclosed as the person most knowledgeable about such policies. At 3 17 the hearing, Defendants expressed concern that Mr. Donohue might be asked impermissible 18 || hypothetical questions, and Plaintiff represented that no such hypotheticals would be asked. 19 Defendants’ Motion in Limine No. 5 is DENIED. 20 21 IT IS SO ORDERED. 22 23 Dated: May 6, 2024 BETH LABSON FREEMAN 25 United States District Judge 26 27 28