SAUNDRA BROWN ARMSTRONG, Senior District Judge.
Plaintiff David O. Baca brings the instant civil rights action, pursuant to 42 U.S.C. § 1983, against various California Highway Patrol ("CHP") officers and others, alleging claims for excessive force and the illegal search of his vehicle. He also alleges a state law claim for violation of his civil rights under California's Bane Act, California Civil Code § 52.1. A jury trial is presently scheduled to commence on April 11, 2016. Dkt. 108. In anticipation of trial, the parties have filed motions in limine, which have been fully briefed and are ripe for adjudication.
On the evening of June 15, 2011, Plaintiff was driving his vehicle along Interstate 80 when CHP Officers B. Jeffers and B. Philips allegedly observed him speeding and weaving in traffic. The officers followed Plaintiff and activated their emergency lights to pull him over. Plaintiff exited at the Central Avenue offramp in El Cerrito, California, and stopped at a gas station. After Plaintiff exited his vehicle as instructed, Officer Jeffers drove Plaintiff's vehicle to a dark side street and allegedly searched the vehicle's interior without consent. Defendants contend that they performed nothing more than a permissible inventory search prior to having the vehicle towed away.
The officers conducted various Field Sobriety Tests ("FSTs") on Plaintiff. Defendants claim that Plaintiff failed the FSTs, though Plaintiff states that he was never informed by the officers that he had failed to perform the FSTs satisfactorily. After Plaintiff refused to take a breathalyzer test, he was arrested and taken to the CHP Office in Oakland.
At the CHP Office, the officers ordered Plaintiff to submit a blood sample, but he allegedly refused. Plaintiff denies that he declined the officers' request, and claims that he simply asked to speak with an attorney and whether less invasive options, such as a urine test, were available. Plaintiff further avers that the officers refused his requests and slammed his face to the floor, and, while he was still handcuffed, beat and kicked him repeatedly on his back, legs, arms and head. As one of officers pinned Plaintiff to the floor, Kenneth Simonson, a phlebotomist, extracted two blood samples from Plaintiff's left arm.
Following the blood extraction, the officers took Plaintiff to a patrol car to transport him to the Alameda County Jail. According to Plaintiff, the officers then lifted him by his handcuffs and dragged him outside, causing extreme pain and injuring him further, and placed a hood over his head. The officers counter that Plaintiff was disruptive in the patrol car and spat on the officers. At the jail, Plaintiff was stripped of all clothing (except for the hood that had been placed on him) and placed naked for several hours in a holding cell.
On December 5, 2011, Plaintiff appeared in the Alameda County Superior Court in connection with the various charges arising from his drunk driving arrest. Pursuant to a plea agreement negotiated by his counsel, Plaintiff pled no contest to a misdemeanor violation of California Vehicle Code § 23152(b), which makes it "unlawful for a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle." According to the Clerk's Minutes from that hearing, the parties stipulated that the police report provided a "factual basis for the plea." Defs.' Am. Opp'n Ex. A, Dkt. 124-1. The police report, however, has not been provided to the Court.
On June 3, 2013, Plaintiff filed the instant action in the Alameda County Superior Court. Defendant County of Alameda (which is no longer a party) removed the action based on federal question jurisdiction. Plaintiff subsequently filed a First Amended Complaint ("FAC") against: the State of California; the Department of the CHP; Sergeant Grimes; Sergeant True; Officer B. Rodgers; Officer M. Wilson; Officer C. Randall; Officer Jeffers; and Officer Phillips. Dkt. 17. The FAC alleges three claims for relief: (1) unlawful search of Plaintiff's vehicle as to the individual Defendants in violation of the Fourth Amendment; (2) excessive force as to all Defendants in violation of the Fourth Amendment; and (3) violation of Plaintiff's civil rights under the Bane Act as to all Defendants.
On September 30, 2013, the Court adjudicated Defendants' motion to dismiss, which was directed to the first and third claims for relief. Dkt. 38. As to Plaintiff's first claim for the unlawful vehicle search, the Court dismissed all Defendants except Officers Jeffers and Phillips. With regard to his third claim for violation of the Bane Act, Plaintiff acknowledged that he had failed to exhaust his administrative remedies under the California Tort Claim Act and abandoned his claim for damages. The Court therefore granted Defendants' motion to dismiss Plaintiff's third claim to the extent it seeks the recovery of damages and denied the motion with respect to the request for injunctive relief.
Plaintiff moves to exclude evidence of his blood alcohol level, including any toxicological test results, on the ground that Defendants have not disclosed an expert witness qualified to testify regarding the "methods, procedures and adequacy of any such tests and/or results." Pl.'s Mot. at 1, Dkt. 122. As noted, the blood alcohol measurement was made by CVT, apparently a private laboratory used by the CHP. Defs.' Am. Opp'n Ex. D. Defendants' Witness List does not identify any individuals employed by CVT nor anyone who is qualified to render testimony regarding the testing process.
To admit evidence of a driver's blood alcohol level, the proponent of such evidence must demonstrate "a basis for believing that the test which measured blood alcohol was reliable."
Here, Defendants contend that expert testimony is unnecessary because "[Plaintiff] already admitted that his [blood alcohol level] was 0.11 percent by virtue of his criminal plea agreement." Defs.' Am. Opp'n at 3, Dkt. 124. This contention lacks merit. As an initial matter, Defendants do not dispute Plaintiff's contention that his misdemeanor "no contest" plea may not be used against him in this action.
Equally uncompelling is Defendants' ancillary argument that, under
Plaintiff's motion in limine no. 1 is GRANTED. Defendants are precluded from presenting any evidence or argument regarding the toxicological test results, including that his blood alcohol level was reported to be 0.11 percent.
Plaintiff moves to exclude evidence of his misdemeanor DUI conviction on the ground that it was not disclosed by Defendants with their initial disclosures, as required by Federal Rule of Civil Procedure 26(a). Alternatively, Plaintiff contends evidence of his conviction would be unduly prejudicial and is not otherwise the type of crime that may be used to impeach his credibility. Pl.'s Mot. at 1.
Rule 26(a) imposes an affirmative duty on parties to disclose all individuals with potentially discoverable information, as well as all documents and tangible things that a party may use to support its claims or defenses. Fed. R. Civ. P. 26(a). Parties also have a duty to provide supplemental disclosures when they learn of additional information that should have been provided under Rule 26(a).
Defendants do not dispute that they failed to disclose any documents relating to Plaintiff's conviction with their initial disclosures or offer any justification for their failure to do so. Instead, Defendants posit that their failure to comply with Rule 26 is harmless since the documents were listed in their trial exhibit list and with their oppositions to Plaintiff's motions in limine. In neither his moving papers nor his reply does Plaintiff claim that he suffered any prejudice resulting from Defendants' untimely disclosure of documents pertaining to his conviction.
Alternatively, Plaintiff contends that allowing evidence of his DUI misdemeanor conviction would be unduly prejudicial relative to its marginal probative value because it is not germane to whether the CHP officers used excessive force during his detention at the CHP office or had grounds to search his vehicle. Defendants respond that Plaintiff's conviction is necessary to (1) prevent the jury from speculating that Plaintiff was not prosecuted or convicted for DUI and (2) demonstrate that the officer had probable cause "to pull over and ultimately arrest plaintiff for DUI." Defs.' Am. Opp'n at 4. Neither contention is persuasive.
To prevail on an excessive force claim under § 1983, a pretrial detainee must show the force purposely or knowingly used against him was objectively unreasonable.
Plaintiff's motion in limine no. 2 is GRANTED. Defendants are precluded from presenting any evidence or argument regarding the fact that Plaintiff pled "no contest" to and suffered a conviction for a violation of California Vehicle Code § 23152(b).
Plaintiff moves to preclude Defendants from offering expert testimony from the CHP officers regarding his level of intoxication on the ground that they "have not been proffered as experts to testify on such matters." Mot. at 2. However, expert testimony is not necessarily required to show that Plaintiff was intoxicated.
More problematic for Defendants is the scope of the proposed expert opinions. Officer Jeffers and Phillips will "offer an opinion based on their observations of [Plaintiff] objective signs and symptoms of intoxication and his poor performance on the Field Sobriety Tests, . . ."
In sum, Plaintiff's motion in limine no. 3 is GRANTED IN PART and DENIED IN PART. The motion is DENIED to the extent Plaintiff seeks to preclude the CHP officers from offering testimony regarding whether Plaintiff appeared to be intoxicated. Defendants may offer lay testimony based on the officers' observations of Plaintiff, as well as expert opinion testimony, provided that the requisite foundation is laid, pursuant to Federal Rule of Evidence 702. The motion is GRANTED insofar as Defendants seek to present any testimony that Plaintiff's blood alcohol level was 0.11 percent or the number of alcoholic drinks Plaintiff likely consumed prior to his arrest.
Defendants move the Court to exclude any evidence regarding Plaintiff's lost income damages on the ground that Plaintiff failed to identify lost income as an element of his damages in his Rule 26 initial disclosures. Plaintiff acknowledges that his initial disclosure did not identify lost income as part of his claim for damages, but states that Defendants "had the full opportunity to depose Plaintiff regarding his lost income during his deposition." Pl.'s Opp'n at 2, Dkt. 125. Perhaps so, but Plaintiff confirmed during his deposition that he is not seeking lost income as part of his damages. Defs.' Mot. at 2 (citing Pl.'s Depo. at 110:24-111:1), Dkt. 121.
Defendants' motion in limine no 1 is GRANTED. Plaintiff is precluded from offering any evidence or argument regarding lost income resulting from Defendants' alleged misconduct.
Defendants move to preclude Plaintiff from presenting evidence of his damages consisting of his medical care costs on the ground that he failed to provide a computation of his damages as part of his initial disclosures. Rule 26(a)(1)(A)(iii) requires each party to provide to the other party "a computation of each category of damages claimed by the disclosing party . . . ." Plaintiff does not dispute that he never provided such a computation, but argues that his failure to comply is harmless because the information is contained within the medical records already in their possession. However, a party cannot avoid its obligation to provide a damage calculation merely by producing records ostensibly containing such information.
Defendants' motion in limine no. 2 is GRANTED. Plaintiff is precluded from offering any evidence or argument regarding his medical costs resulting from Defendants' alleged misconduct.
Defendants move for exclusion of evidence of plaintiff's injury while at Santa Rita Jail ("Santa Rita"). Plaintiff states that he does not oppose this motion. Pl.'s Opp'n at 2. Accordingly, Defendants' motion in limine no. 3 is GRANTED. Plaintiff is precluded from offering any evidence or argument regarding any injuries he sustained while detained at Santa Rita.
Citing
Defendants also contend that the aforementioned evidence is not relevant, since Plaintiff has affirmatively stated that he is not challenging the legality of his arrest. The Court agrees that since the legality of the arrest is not at issue, it would confuse the jury to hear evidence pertaining to whether his arrest was legal.
Defendants' motion in limine no. 5 is GRANTED IN PART and DENIED IN PART. Plaintiff is precluded from arguing that Defendants lacked probable cause for his arrest; that his blood alcohol level was less than 0.11 percent; or that he was falsely arrested. Plaintiff is not precluded from presenting testimony regarding the circumstances leading to his arrest, including his performance of the FSTs.
Defendants move to preclude Plaintiff from offering any evidence or making any argument "that the nonconsensual blood draw was unnecessary, unreasonable or unlawful." Defs.' Mot. at 4. According to Defendants, they had a legal right to extract a blood sample from Plaintiff by force based upon his refusal to take a breath or blood test.
Plaintiff's assertion that the jury must address the reasonableness of Defendants' "seizure" of his blood presupposes that a claim that the blood extraction violated Plaintiff's constitutional rights is, in fact, properly before the Court. A non-consensual extraction of blood implicates the Fourth Amendment's protection against unreasonable searches and seizures.
The fact that Plaintiff has not alleged a Fourth Amendment violation based on a nonconsensual blood draw does not ipso facto mean that the circumstances surrounding the extraction are irrelevant. To the contrary, the Ninth Circuit has held that those facts are pertinent to whether the amount of force used by Defendants was objectively reasonable.
Defendants move to preclude Plaintiff from calling and eliciting testimony from the following individuals disclosed on his witness list on the grounds that they were not listed in his Rule 26(1) initial disclosures: Christine Allen, MPT; Dr. Richard Baxter; Dr. Frederico Moure; and an unspecified treating physician at the Veteran's Administration. Defs.' Mot. at 4. Plaintiff does not dispute that he failed to disclose these individuals, as required by Rule 26, but states, unresponsively, that he will not rely on "any medical records not produced in discovery," other than recent records he anticipates receiving from the Veterans Administration, which he will produce to the defense as soon as he receives them. Given Plaintiff's failure to demonstrate that his non-compliance with his Rule 26 obligations was substantially justified or harmless, the Court finds that exclusion of these witnesses is appropriate.
Defendants move to preclude Plaintiff from offering any evidence that his injuries are caused by their alleged use of excessive force on the ground that he has not disclosed any experts to offer such testimony. Defendants fail to cite any statutory or decisional authority to support their request. Plaintiff inexplicably fails to respond to this motion.
Expert testimony is necessary when lay persons are unable to make an informed judgment without the benefit of such testimony.
For the reasons set forth above,
IT IS HEREBY ORDERED THAT:
1. Plaintiff's motion in limine no. 1 is GRANTED. Defendants are precluded from presenting any evidence or argument regarding the toxicological test results, including his blood alcohol level of 0.11 percent.
2. Plaintiff's motion in limine no. 2 is GRANTED. Defendants are precluded from presenting any evidence or argument regarding the fact that Plaintiff pled no contest to and suffered a conviction for violating California Vehicle Code § 23152(b).
3. Plaintiff's motion in limine no. 3 is GRANTED IN PART and DENIED IN PART. The motion is DENIED to the extent Plaintiff seeks to preclude the CHP officers from offering testimony regarding whether Plaintiff appeared to be intoxicated. Defendants may offer lay testimony based on the officers' observations of Plaintiff, as well as expert opinion testimony, provided that the requisite foundation is laid, pursuant to Federal Rule of Evidence 702. The motion is GRANTED insofar as Defendants seek to present any testimony that Plaintiff's blood alcohol level was 0.11 percent or the number of alcoholic drinks Plaintiff likely consumed prior to his arrest.
4. Defendants' motion in limine no. 1 is GRANTED. Plaintiff is precluded from offering any evidence or argument regarding lost wages resulting from Defendants' alleged misconduct.
5. Defendants' motion in limine no. 2 is GRANTED. Plaintiff is precluded from offering any evidence or argument regarding his medical costs resulting from Defendants' alleged misconduct.
6. Defendants' motion in limine no. 3 is GRANTED. Plaintiff is precluded from offering any evidence or argument regarding any injuries he sustained while detained at Santa Rita.
7. Defendants' motion in limine no. 4 is DENIED.
8. Defendants' motion in limine no. 5 is GRANTED IN PART and DENIED IN PART. Plaintiff is precluded from arguing that Defendants lacked probable cause for his arrest; that his blood alcohol level was less than 0.11 percent; or that he was falsely arrested. With regard to the FSTs, Plaintiff may testify that the officers did not inform him that he erred in performing those tests.
9. Defendants' motion in limine no. 6 is GRANTED. Plaintiff is precluded from presenting testimony at trial from: Christine Allen, MPT; Dr. Richard Baxter; Dr. Frederico Moure; and an unspecified treating physician at the Veteran's Administration.
10. Defendants' motion in limine no. 7 is DENIED.
11. The action is REFERRED to Magistrate Judge Laurel Beeler to schedule a further settlement conference in this action, to take place within 60 days of the date this order is filed.