ROBERT H. WHALEY, Senior District Judge.
Before the Court is Defendant County of Alpine's Motion to Modify the Final Pretrial Order. ECF No. 90. Defendant seeks to modify the Central Factual Disputes section and to add exhibits not included in Attachment D to the Final Pretrial Order. Id. Plaintiff Robert Levy opposes both of the proposed changes. ECF No. 93. Also before the Court are Plaintiff Robert Levy's Motions In Limine and Defendant County of Alpine's Motions In Limine. ECF Nos. 68, 69, 115, and 118. The Court has reviewed the file as a whole and is fully informed.
The Final Pretrial Order contains seven factual disputes under the heading Central Factual Disputes. ECF No. 64 at 2-3. Defendant seeks to amend the Final Pretrial Order to replace the current Central Factual Disputes section with the following: (1) when and to whom Plaintiff Robert Levy complained about Pamela Knorr's actions and what his complaints entailed; (2) whether Levy's complaints about Knorr were a matter of public concern; (3) whether Levy was speaking as a private citizen, not as a public employee in the scope or context of his job duties when he complaint [sic] about Knorr's actions; (4) whether Knorr's recommendation that the Board of Supervisors authorize her to retain the services of LCW to investigate the Leviathan Peak telecommunications project was an effort to retaliate against Levy for his complaints about Knorr's actions; (5) whether retaliation against Levy was a substantial or motivating factor in the Board of Supervisors' decision to authorize the LCW investigation and report; (6) whether Levy suffered damages as a result of the retaliation taken by the Board of Supervisors, and if so, the amount of damages. ECF No. 90 at 1-2.
The Court has reviewed the filings as a whole, including the summary judgment order and briefings (ECF Nos. 26, 31-35, 38, 44), trial briefs (ECF Nos. 103, 104), and proposed jury instructions (ECF Nos. 98, 99), and determines that the current Central Factual Disputes section does not encompass all of the facts at issue in this case and may contain contentions of facts that are not relevant. A review of the proposed and model jury instructions illustrates additional facts that are relevant to the claim including facts that must be established by plaintiff to prevail and facts that are relevant to the Defendant's legal and factual defenses such as immunity and status of Plaintiff under the First Amendment. It would be impossible for the Court to use the Central Factual Disputes section of the Pretrial order to limit the evidence presented as neither parties' case would fit within those confines. Therefore, the Court finds reason to amend the Final Pretrial Order to add—but not replace—the factual disputes presented by Defendant to the current Central Factual Disputes section of the Final Pretrial Order. While these facts shall be added, the Court does not find the Central Factual Disputes section to be particularly helpful in the management of the case, and the Court will not necessarily limit the evidence that may be presented at trial based on that section of the Final Pretrial Order.
Defendant also requests that Attachment D to the Final Pretrial Order (Alpine County's Exhibit List) be amended to include five additional exhibits. ECF No. 90-1 at 10. These documents include: (1) minutes of the special meeting of the Board of Supervisors in closed session on November 15, 2012; (2) e-mail from Teola Tremayne dated November 16, 2012, with attached addendum agenda for Board of Supervisors meeting on November 20, 2012; (3) minutes of the Board of Supervisors meeting on November 20, 2012; (4) minutes of the Board of Supervisors on December 4, 2012; and (5) Levy's claim for damage against County of Sierra filed December 11, 2013. Id.
The minutes of the Board of Supervisors meetings are public records. The meetings of the Board of Supervisors and the actions taken at the meetings form the basis of Plaintiff's ratification claim as well as the act authorizing the dissemination of the investigation report alleged to be tortuous. Communications between the parties show that a collection of exhibits was delivered to Plaintiff's counsel on August 1, 2016, which included the proposed exhibits. ECF No. 91 at 2. Counsel for Defendant also sent an email to Plaintiff's counsel on July 31, 2016, to notify him that the exhibit list included these additional exhibits that were not identified in the Final Pretrial Order. Id. Thus, Plaintiff has been on notice of these exhibits, which are also public record. The meetings referenced in the exhibits and the email identified are central to the Plaintiffs case and should have been part of Plaintiff's preparation from the time of the filing of his Complaint. No actual prejudice is asserted by Plaintiff. Rather, Plaintiff rests on Defendant's failure to include the exhibits in the Final Pretrial Order entered the prior month. Plaintiff suggests that the Court review the exhibits and that they be made available at the trial "if appropriate". ECF 93 at 4. The Court finds that the inclusion of these exhibits does not prejudice the Plaintiff and that it is appropriate that the exhibits be included.
The Court notes that Plaintiff Levy's complaint against County of Sierra is dissimilar to the other exhibits requested, in that it is not a record of Defendant and may not have been known to Plaintiff's counsel. The document references a statement by a party opponent that would normally be admissible as substantive evidence if offered by Defendant. It also may be characterized as rebuttal evidence to be used if Plaintiff denies such statements. As such, the document would not be required to be produced until used in rebuttal. Given that Plaintiff has not claimed actual prejudice by the timing of Defendant's request to list additional exhibits, this exhibit is included as well.
Plaintiff first moves to exclude all documents and reports prepared by or on behalf of Defendant, which were not presented to Plaintiff during discovery or with an initial disclosure, including but not limited to any and all investigations, reports, etc. from Defendant's retained investigator, Ken MacHold. Plaintiff also moves to exclude all references, evidence, and testimony regarding any of these documents or reports. ECF No. 68 at 2-3.
Plaintiff argues that such evidence should be excluded because (1) it is irrelevant to the issues in this case (Fed. R. Evid. 401); and (2) introduction would require an undue consumption of time and is likely to confuse or mislead the jury, or will cause Plaintiff to be unduly prejudiced (Fed. R. Evid. 403). Id.
Defendant stipulates as follows: "Defendant stipulates to the foregoing except for any documents that may be used for the purpose of impeachment AND that were not subject to the Rule 26(a) disclosure AND/OR requested through discovery." ECF No. 70 at 2.
The Court
Plaintiff moves to exclude all non-testifying, County-affiliated witnesses from the courtroom during the actual proceedings. ECF No. 68 at 3. (The Court assumes that Plaintiff is referencing testifying witnesses). Plaintiff specifically includes former defendants Donald Jardine, Philip Bennett, and Tom Sweeney. Id.
Plaintiff argues that these individuals share a strong personal animus toward Plaintiff and are likely to coordinate their responses to questions in an effort to discredit Plaintiff; which will undoubtedly prejudice the jury. Id. Plaintiff states he understands that Defendant will stipulate, with the caveat that Donald Jardine has been selected to sit at counsel table with defense counsel as the County's representative. Id.
Indeed, Defendant does stipulate to this motion "with the understanding that Donald Jardine will be present throughout the Trial as he is the individual appearing on behalf of the Defendant." ECF No. 70 at 3.
The Court
Plaintiff moves to exclude the written report of Defendant's retained expert, Jared L. Zwickey, and all references, evidence, and testimony regarding any documents or reports from Jared L. Zwickey on the grounds that the evidence is irrelevant (Fed. R. Evid. 401); and introduction would require an undue consumption of time and is likely to confuse or mislead the jury, or will cause Plaintiff to be unduly prejudiced (Fed. R. Evid. 403). ECF No. 68 at 3-4.
Defendant agrees not to introduce the written report of the expert witness as evidence; however, Defendant does not stipulate to excluding all references, evidence, and testimony regarding any documents or reports from Jared L. Zwickey. ECF No. 70 at 4. Defendant argues that such testimony is relevant and necessary to explain the issues at trial; furthermore, Defendant states that the written report was previously produced to Plaintiff and Chief Zwickey's deposition has also been taken. Id. As such, Defendant contends that neither Rule 401 nor Rule 403 supports excluding and all references, evidence, and testimony regarding any documents or reports from Jared L. Zwickey.
The Court
Plaintiff moves to allow references, evidence, and testimony regarding Plaintiff's pre-litigation, retirement-related settlement discussions with Defendant for the purpose of proving unfair bias toward Plaintiff and establish a pattern of retaliation by the County and Pamela Knorr toward Plaintiff. ECF No. 68 at 4-5.
Defendant opposes this motion and contends that this evidence should not be allowed in for two reasons: (1) these negotiations occurred after the events giving rise to the cause of action and can't be used retroactively to show bias, and (2) if Pamela Knorr sabotaged retirement negotiations with Plaintiff, it did not violate his constitutional rights. ECF No. 70 at 6-9.
The Court
Plaintiff moves to exclude specific witnesses, Sandra Bryson and James "Jim" Holdridge, from the courtroom on the grounds that they have a personal grudge towards Plaintiff and their actions in the courtroom may unduly prejudice the jury. ECF No. 68 at 5.
Defendant agrees that only witnesses who are testifying will be present in the courtroom at the time they are called, and both Sandra Bryson and James "Jim" Holdridge are on Defendant's witness list and will be called as necessary. ECF No. 70 at 10. However, Defendant argues that if either or both of the above named witnesses are removed from Defendant's witness list and/or not called on to testify, then they have the right as citizens of Alpine County to be present during the testimony given at the trial and Plaintiff provides no facts that either of them would act other than as appropriate while present in a Federal Courtroom.
The Court
Defendant first moves to exclude any reference to motive regarding the relationship between the Plaintiff and the former Defendants, Pamela Knorr and Tom Sweeney, on the grounds that motive is not relevant and would confuse and mislead the jury. ECF No. 69 at 3-8
Defendant does not actually address any motive or relationship between Plaintiff and the two former defendants, Pamela Knorr and Tom Sweeney. Id. Instead Defendant argues that the actions taken by the County in authorizing Pamela Knorr to conduct an investigation into the Leviathan Peak project were legislative rather than executive or administrative; thus Defendant should be afforded absolute immunity, or qualified immunity at the very least. Id. Defendant then states part of what Plaintiff must prove to establish his retaliation claim and concludes with a reassertion that Defendant should be afforded absolute immunity. Id. at 7-8.
Plaintiff first notes that this argument is the same that has already been rejected when Defendant's eighth motion in limine was denied in the Final Pretrial Order. ECF No. 72 at 3. Plaintiff then argues that the actions of Pamela Knorr and Tom Sweeney demonstrate retaliatory actions and animus towards Plaintiff. ECF No. 72 at 3-5. Plaintiff contends that Defendant should not be afforded immunity because it was not acting in a legislative capacity in authorizing the investigation, which he states was aimed at him personally. Id. at 5.
Here, the ruling in the Final Pretrial Order (ECF No. 64) is not only applicable but directly on point and deals with Defendant's arguments. The Final Pretrial Order states:
ECF No. 64 at 6.
The Court
Defendant's second motion in limine has already been decided and was denied in the Final Pretrial Order. ECF No. 64 at 4-5.
Defendant previously argued that the opinions of Plaintiff's expert witnesses' are unreliable and speculative. The Final Pretrial Order denied this motion in limine as the arguments attack the factual basis of each opinion, they do not address questions of liability, and Defendant will have the opportunity to highlight its interpretation of the evidence at trial.
The Court
Defendant asks the Court to limit the opinion testimony of expert witnesses to those opinions identified in the expert witness disclosures and as testified to at Deposition. ECF No. 69 at 8.
Plaintiff states "that the experts may need to deviate slightly from their testimony to provide clarity for the jurors to understand the case at hand." ECF No. 72 at 6.
The Court
Defendant moves to exclude all records and documents subject to disclosure pursuant to Federal Rules of Civil Procedure, Rule 29(a), that were not produced. ECF No. 69 at 8.
The parties stipulate to this Motion in limine. ECF No. 72 at 6.
The Court
Defendant moves to exclude any and all expert testimony other than that disclosed in compliance with the Status (Pre-Trial Scheduling) Order (Court Document #9) and impeachment witnesses. ECF No. 69 at 8-9.
The parties stipulate to this Motion in limine. ECF No. 72 at 6.
The Court
Defendant moves to preclude Plaintiff from introducing evidence or Plaintiff's counsel eliciting testimony at trial concerning personnel records, actions, investigations, or administrative procedures involving Plaintiff. ECF No. 69 at 9-10.
Defendant contends that an argument and any evidence and/or testimony regarding unauthorized personnel investigation of Plaintiff should be excluded under Fed. R. Evid. 401 because it is not relevant to the retaliation claim as the investigation authorized by Defendant was not a personnel investigation and a claim of unauthorized personnel investigations should be brought under state claim that has already been dismissed. ECF No. 69 at 9-10.
Plaintiff counters that to grant this motion would be to nullify Plaintiff's testimony and evidence concerning the Liebert, Cassidy, Whitmore report and retaliation by Pamela Knorr against him. ECF No. 72 at 6-7. Additionally, Plaintiff contends that this information is relevant to present his untarnished personnel work record/history, including work on telecommunications projects, prior to Pamela Knorr's actions. Id. at 7.
The Court
Defendant motions in limine to reserve the right to file Motions in limine with regard to the exclusion of various items of evidence listed on Plaintiff's List of Evidence (Exhibit "C") that "was submitted to the Court on Monday, June 6, 2016." ECF No. 69 at 10. And Defendant moves to reserve the right to file motions in limine to exclude witnesses identified on Plaintiff's List of Witnesses (Exhibit "A"). ECF No. 69 at 10.
The Court
Defendant moves to exclude any and all identified witnesses from the courtroom during trial. ECF No. 69 at 10. Defendant also notes that Plaintiff's wife and mother will be present, but will not be testifying.
The parties have stipulated to this motion in limine. ECF No. 72 at 7.
The Court
Defendant's tenth motion in limine reads "To determine the relevance of the legislative act re investigating the funding of the telecommunications projects and the appropriate immunity; i.e. absolute (No. 1 above) or qualified." ECF No. 69 at 11-13. Defendant makes substantially the same argument it set forth in support of its first motion in limine, but that Defendant is entitled to immunity because, based on Defendant's analysis and interpretation of the evidence, the board members who authorized the investigation were entitled to immunity. Id.
Plaintiff opposes this motion and states that his opposition is identical to Defendant's first motion in limine.
The Court
Defendant moves for "no reference to discussions that took place during closed or executive session of the Board of Supervisors as it would violate the Brown Act." ECF No. 69 at 13. Defendant argues in full that: "California Government Code, Section 54950, et seq., more commonly known as "The Brown Act" allows for governmental bodies to meet in closed session, which discussions are generally not recorded and are considered confidential. Only the results are to be reported and documents provided to the public. Section 54957.1." Id.
Plaintiff counters in full that: "Plaintiff pled in the initial complaint and testified during his deposition that he was retaliated against for bringing Brown Act Violation(s) to the attention of KNORR, Sheriff John Crawford and Alpine County Counsel (Whistleblower)." ECF No. 72 at 8.
The Court
Defendant moves for no discussion regarding settlement negotiations before or during litigation. ECF No. 69 at 14-15.
Defendant argues that Fed. R. Evid. 408 should preclude any testimony or discussion of any settlement negotiations between the parties. Id. at 14-15.
Plaintiff does not offer any opposition to not discussing the May 10, 2016, settlement conference regarding the case at hand. ECF No. 72 at 8-9. However, Plaintiff does oppose this motion in limine with respect to the prior settlement negotiations. Id. Plaintiff asserts that the earlier settlement negotiations, that took place months before this litigation, did not address the claims at hand, but were part of an early retirement buyout settlement negotiations. Id. It is Plaintiff's contention that discussions regarding the early retirement settlement negotiations should be admissible as they did not address the claims at hand and should also be allowed to prove bias. Id.
The Court
Defendant moves the Court to exclude testimony at trial which states or relies on the legal conclusion that the investigation into the Leviathan Peak Project was an unauthorized personnel investigation of a police officer in violation of California law. ECF No. 115.
Defendant argues that the testimony Plaintiff will elicit amounts to an interpretation of California law (the Public Safety Officers Procedural Bill of Rights Act) and the law's purported applicability to the Leviathan Peak investigation. ECF No. 115 at 3. Defendant contends that the testimony to be elicited amounts to resolutions of questions of law and are legal conclusions that are inappropriate subjects for expert testimony. Id. Defendant also contends that such testimony would be improper because it is Defendant's opinion (and resolution of a question of law and legal conclusion) that the California law does not apply because the Leviathan Peak investigation was not a personnel investigation. Id. at 3-4.
Plaintiff objects to this motion as time barred by the Court's Final Pre-trial Order (ECF No. 64) setting a June 17, 2016, deadline for briefing in support of motions in limine. ECF No. 119.
The Court
Defendant moves the Court for an order excluding hearsay testimony and other evidence of employee complaints that do not involve retaliation for engaging in protected speech. ECF No. 118.
Defendant contends that the only purpose for testimony and evidence involving complaints of harassment and discrimination is an attempt to hold Defendant liable under a theory of respondeat superior, which is inapplicable, and that Defendant will show that Pamela Knorr was not a final policymaker, so evidence of any of her discriminatory actions is irrelevant. ECF No. 118. Defendant argues that some of the evidence to be presented will be hearsay and all of the evidence and testimony regarding complaints of harassment and discrimination are irrelevant because it is not related to a policy or custom of unconstitutional activity. Id.
Plaintiff objects to this motion as time barred by the Court's Final Pre-trial Order (ECF No. 64) setting a June 17, 2016, deadline for briefing in support of motions in limine. ECF No. 119.
While normally time barred, pursuant to the Final Pretrial Order (ECF No. 64), the Court
The Court notes that other alleged wrong or bad acts, not admissible for some other purpose, are not admissible. See Fed. R. Evid. 404. Moreover, the Summary Judgement Order specifically ". . . notes the absence of any evidence of a written policy or longstanding custom or practice of retaliation, or a pattern of similar violations." ECF No. 44 at 10. Thus, the Order precludes evidence in this trial to establish a policy of age discrimination.
As the Court understands the Summary Judgment Order, the remaining issue for trial is not an age discrimination claim caused by an age discrimination policy of the County or a policymaker of the County. Rather it is a claim that Knorr retaliated against Plaintiff for complaining about age discrimination. For these purposes, Knorr would have had to act in her capacity as a final policymaker in recommending that the Board initiate an outside investigation, or the Board of Supervisors, as the final policymaker, ratified her actions. Thus the alleged acts of age discrimination are not necessary to be proven. The parties should be prepared to discuss these observations of the Court at the hearing.
Accordingly,
Plaintiff's Motions in Limine,
