The opinion
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4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
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7 CENIOUS BREWSTER, Case No. 20-cv-03254-HSG
8 Plaintiff, ORDER RE MOTIONS IN LIMINE
9 v.
Re: Dkt. Nos. 121–25, 127–31
10 DANIEL T MILLS, et al.,
11 Defendants.
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13 Before the Court are the parties’ motions in limine, filed October 18, 2022. See Dkt. Nos.
14 121–25, 127–31. The parties filed oppositions on October 25, 2022. See Dkt. Nos. 135–39,
15 146–49. The Court held a hearing on November 8, 2022. See Dkt. No. 158. At the hearing, the
16 Court ruled on several motions on the record and directed the parties to file offers of proof
17 regarding the remaining motions. The parties have filed offers of proof and responses. See Dkt.
18 Nos. 163–64, 170–71. The following constitutes the Court’s rulings on the remaining motions.
19 I. PLAINTIFF’S MOTIONS IN LIMINE
20 A. Plaintiff’s Motion in Limine No. 2: Criminal and Disciplinary History
21 The Court GRANTS in part, DENIES in part, and DEFERS in part Plaintiff’s Motion in
22 Limine No. 2 per the categories below. Dkt. No. 128. The Court emphasizes that any of the
23 preliminary rulings in this order are subject to reconsideration at trial depending on how the
24 parties present their evidence. With respect to this motion, for example, if Plaintiff opens the door
25 by testifying in a manner contradicted by the excluded records, that may be a basis for admitting
26 them.
27 i. Criminal History Record
1 DENIED for the reasons stated on the record. The convictions fit squarely within the purpose
2 authorized by Federal Rules of Evidence 608 and 609, and Plaintiff sustained each conviction less
3 than ten years ago. See Fed. R. Evid. 608(b), 609(a)–(b). Given the centrality of witness
4 credibility in this case, the probative value of impeachment with these convictions is not
5 substantially outweighed by unfair prejudice or any other Rule 403 consideration. Defendants
6 may thus impeach Plaintiff with these convictions as provided in Rule 609 if he testifies, subject to
7 the standard limiting instruction cabining the purpose for which the jury can consider them. See
8 Ninth Circuit Model Civil Jury Instruction 2.9.
9 Plaintiff submits that if the Court admits this evidence, he would prefer that the
10 information come in via stipulation rather than admission of certified copies of conviction records.
11 See Dkt. No. 171 at 3. That makes sense, and Plaintiff has proposed language the Court finds
12 appropriate. See id.1 The Court DIRECTS the parties to meet and confer and file by November
13 21, 2022 a trial stipulation tracking Plaintiff’s proposal to be read to the jury. The parties should
14 also prepare a corresponding modified Ninth Circuit Model Civil Jury Instruction 2.9 reflecting
15 this concept, which the Court will read to the jury immediately after the trial stipulation. The
16 limiting instruction should not re-list all of the offenses, and should simply read “The evidence
17 that a witness has been convicted of a felony may be considered . . . .”
18 ii. Booking Cards
19 Defendants state they do not intend to introduce the 2019 booking card unless necessary
20 for impeachment or if Plaintiff opens the door. See Dkt. No. 163 at 3. The Court thus does not
21 need to address the admissibility of the 2019 booking card unless and until it becomes necessary.
22 As to the 2020 booking card, the motion is DENIED, assuming Defendants can properly
23 lay the foundation they proffer in their filings. The 2020 booking card is not hearsay because
24 Defendants do not intend to offer it to prove the truth of the matters asserted. See Fed. R. Evid.
25 801(c). As Defendants explain, the booking card is being introduced as evidence of what
26 Defendants reviewed and relied on to determine Plaintiff’s housing placement, and to explain how
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1 that information informed their later actions. See Dkt. No. 163 at 2–3. This evidence will again
2 be subject to a limiting instruction explaining that the jury is not to consider the card as evidence
3 of the truth of the events described in it, but rather only for the permissible nonhearsay purposes
4 described above. Plaintiff’s arguments about whether Defendants actually relied on the booking
5 card, Dkt. No. 171 at 3-5, go to foundation and may be a basis for cross-examination of defense
6 witnesses, but do not warrant exclusion of the document if an adequate foundation can be laid.
7 iii. Jail Disciplinary History
8 The Court DEFERS ruling to the extent the motion seeks to exclude Plaintiff’s jail
9 disciplinary history. Except for Exhibit 102, it is unclear to the Court whether Defendants intend
10 to offer the records for the truth of the matter asserted. See Dkt. No. 163 at 3–5. The parties also
11 have only sparsely cited any case law on the question of whether the contents of jail disciplinary
12 records are subject to any hearsay exception, or conversely are treated like police reports (which in
13 the Court’s experience are generally treated as hearsay, whether or not they are formally business
14 records at the first level of hearsay analysis). The Court DIRECTS the parties to file
15 simultaneous supplemental briefs of no more than two pages addressing this issue by November
16 21, 2022. The parties should cite specific authority, preferably from the Supreme Court or the
17 Ninth Circuit, and secondarily from any other court of appeals. The Court will then address this
18 issue with the parties at the further pretrial conference on November 23, 2022. See Dkt. No. 158.
19 iv. Rules Violations Before April 15, 2020
20 For Exhibits 136 and 137, the Court GRANTS the motion to the extent Defendants offer
21 them as substantive evidence. The violations constitute prohibited propensity evidence under Rule
22 404(b)(1), and Defendants have not persuasively articulated any permitted purpose under Rule
23 404(b)(2). Defendants generically recite the 404(b) categories (such as motive, intent, and
24 knowledge), but do not explain how any of them apply, or are relevant. To the extent these
25 documents purportedly show that Plaintiff’s actions “were not inadvertent or a mistake,” Dkt. No.
26 163 at 6, mistake or inadvertence is not Plaintiff’s theory of the case, and Defendants’ description
27 is essentially no more than an assertion of propensity. Defendants also do not explain how
1 outweighed by the risk of unfair prejudice, confusion of issues, and waste of time that would result
2 from introducing evidence about these other incidents unrelated to the sole retaliation issue
3 remaining in the case.
4 As to the March 24, 2020 incident report, Defendants’ offer of proof suggests that they do
5 not seek to introduce this evidence for its truth, but rather for the nonhearsay purpose of
6 explaining the deputies’ state of mind as it informed their actions. The Court DEFERS ruling on
7 the admissibility of this exhibit under that theory, and needs to discuss the issue in more detail at
8 the further pretrial conference.
9 v. Rules Violations After April 17, 2020
10 The Court GRANTS the motion as to all violations after April 17, 2020. The violations
11 again constitute prohibited propensity evidence. See Fed. R. Evid. 404(b)(1). Defendants’
12 argument that the violations tend to show Plaintiff’s behavior from April 15–17 was “not the result
13 of mistake or accident” under Rule 404(b)(2) is unpersuasive, as again there is currently no reason
14 to believe Plaintiff will argue his actions were the result of mistake or accident.
15 B. Plaintiff’s Motion in Limine No. 5: Antigay Harassment, Homophobia, Racism
16 The Court DEFERS ruling on Plaintiff’s Motion in Limine No. 5. Dkt. No. 131. The
17 Court directed Defendants to file an offer of proof regarding this motion. Defendants have not yet
18 done so. The Court will discuss this issue with the parties at the further pretrial conference, and
19 the parties need to be prepared to conclusively and clearly explain whether there is actually any
20 live issue with respect to this motion. The parties are directed to meet and confer on this point
21 before the further pretrial conference and make diligent and good faith efforts to clarify whether
22 any dispute remains as to this issue and resolve the motion by agreement if at all possible.
23 II. DEFENDANTS’ MOTIONS IN LIMINE
24 A. Defendant’s Motion in Limine No. 2: Other Claims, Complaints, Allegations, or
Internal Affairs Lawsuits Related to Defendants
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26 The Court GRANTS in part and DEFERS in part Defendant’s Motion in Limine No. 2.
27 Dkt. No. 122.
1 harassment claim, which is necessary for them to assess the strength of Plaintiff’s claim that
2 Defendant Mills had a motive to retaliate. But Plaintiff will be limited to his own testimony about
3 what occurred as well as the video of Mills’s conduct. Plaintiff will not be limited to simply
4 testifying that he attempted to submit a grievance about his interaction, as Defendants request—
5 Plaintiff will be permitted to testify regarding his own experience of Mills’s conduct, to the
6 targeted extent proffered.
7 To start, Defendants state they do not object to Exhibit 26, the Internal Affairs Policy, if
8 Plaintiff establishes relevance. See Dkt. No. 170 at 3. The Court will address the admissibility of
9 the Policy if and when it becomes necessary.
10 For Exhibit 39, the Internal Affairs interview with Plaintiff, the Court agrees with
11 Defendants that it is hearsay, since a party is not permitted to introduce his own (as opposed to a
12 party opponent’s) out of court statement. See Fed. R. Evid. 801(c), 801(d)(2)(A); Forbes v. Cnty.
13 of Orange, No. SACV111330JGBANX, 2013 WL 12165672, at *8 (C.D. Cal. Aug. 4, 2013). And
14 Plaintiff’s out of court statement also does not qualify as a prior consistent statement, because it
15 was made after Plaintiff already had a motive to fabricate (i.e., when he was being questioned in
16 the context of an investigation of the incident). See Fed. R. Evid. 801(d)(1)(B); Tome v. United
17 States, 513 U.S. 150, 167 (1995)). The Court thus GRANTS the motion as to Exhibit 39.
18 The Court GRANTS the motion as to the following exhibits related to the Internal Affairs
19 investigation of Deputy Mills, Exhibits 38, 40–41, 45, 47, 49–50.2 Plaintiff argues that the
20 documents are offered to “establish timeline and investigation” and cites Federal Rule of Evidence
21 404(b)(2) without explanation or proffer. See Dkt. No. 164 at 3.3 Defendants correctly point out
22 that in Maddox v. City of Los Angeles, 792 F.2d 1408, 1417 (9th Cir. 1986), the Ninth Circuit
23 found that “[t]he Internal Affairs investigation and measures taken by the defendant City were
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2 It is unclear to the Court which listed exhibit is the video of Deputy Mills. It appears to be
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Exhibit 53. The Court’s intention is to allow the video of Deputy Mills, but to the extent Exhibit
53 is a video of another deputy, the video will be excluded.
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3 As Defendants correctly note, these documents are hearsay: they are being offered for the truth
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of the matter asserted and do not fall under any exception. See Fed. R. Evid. 801. Plaintiff does
1 remedial measures taken after the incident,” such that “evidence of these proceedings was
2 therefore properly excluded with respect to the City’s liability” under Rule 403. While Plaintiff
3 suggests that Maddox only applies to municipal liability claims, or to instances in which there has
4 been actual discipline imposed as a result of the investigation, courts in this Circuit have not read
5 it so narrowly. See, e.g., Hernandez v. City of Los Angeles, No. 219CV00441CASGJSX, 2022
6 WL 16551705, at *4 (C.D. Cal. Aug. 1, 2022) (citing Maddox in finding that “insofar as the
7 plaintiff would offer evidence of the FID internal investigation to prove the officers’ liability, it is
8 appropriate to exclude such evidence as unduly prejudicial”). The Court agrees that admission of
9 these IA records would pose the exact risk of Rule 403 prejudice and confusion of issues
10 identified in Maddox and Hernandez, by necessitating what would amount to a mini-trial about the
11 investigation itself, and finds that they are properly excluded on that basis.4
12 For Exhibit 45, the interview with Deputy Mills, the Court DEFERS ruling for now. The
13 Court still does not understand Plaintiff’s theory for introducing the interview and will discuss this
14 exhibit with the parties at the further pretrial conference. Defendant should be prepared to address
15 why this exhibit is not admissible as an admission of an adverse party, and Plaintiff should be
16 prepared to address why the Court’s ruling excluding the other IA records does not equally apply
17 to this exhibit.
18 For exhibits related to the Internal Affairs investigation of Deputy Prado and betting,
19 Exhibits 48, 54–60, 66, the Court GRANTS the motion. These documents are either hearsay,
20 irrelevant, or excludable for prejudice, confusion, or waste of time. See Fed. R. Evid. 401, 403,
21 801. Again, Plaintiff does not proffer any applicable exception or non-hearsay purpose. And any
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23 4 Plaintiff argues in his offer of proof that many of these documents will be used to “refresh
memory if needed.” See, e.g., Dkt. No. 164 at 3. Any document (and indeed any object) can be
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used to refresh a witness’s recollection under Federal Rule of Evidence 612, but that is irrelevant
25 to whether the document is admissible. The Court will strictly enforce appropriate procedure
regarding any documents purportedly being used to refresh. For example, use of a document to
26 refresh requires a showing of failure to recall. Then the witness reads the document silently (not
aloud), puts it away, and then is asked if it refreshes his or her recollection. The Court will not
27 permit inadmissible documents to be read into the record, by counsel or witnesses, under the guise
1 theory of retaliation arising from Prado’s alleged behavior is not reasonably part of this case at this
2 late stage. Evidence related to these incidents is bound to confuse the issues and waste time at
3 trial.
4 B. Defendants’ Motion in Limine No. 3: Undisclosed Irrelevant Witnesses
5 Plaintiff withdrew Meredith Osborn as a witness at the hearing on November 8, 2022. The
6 remaining witnesses subject to this motion are Khalid Barrow and Agustin Garcia.
7 The Court GRANTS Defendants’ Motion in Limine No. 3. Dkt. No. 123. Without
8 dispute, Plaintiff did not disclose these witnesses as required under Federal Rule of Civil
9 Procedure 26(a). Plaintiff has not provided a persuasive argument that failure to disclose these
10 witnesses was “substantially justified” or “harmless.” Discovery in this case closed long ago, the
11 trial date is just over a week away, and it would be unfair and prejudicial for Plaintiff to call
12 witnesses that Defendant never had the opportunity to depose regarding the testimony Plaintiff
13 now seeks to elicit at trial. Plaintiff accordingly may not call these witnesses at trial. See Fed. R.
14 Civ. P. 37(c); Lanard Toys Ltd. v. Novelty, Inc., 375 F. App’x 705, 713 (9th Cir. 2010).5
15 C. Defendants’ Motion in Limine No. 4: Evidence Regarding Dismissed Claims
16 Defendants’ Motion in Limine No. 4 is GRANTED in part and DENIED in part. Dkt.
17 No. 124. The Court reiterates that Deputy Mills’s conduct is relevant, but that evidence should be
18 limited to the video of Deputy Mills and Plaintiff’s own testimony as described above. The parties
19 generally agree on this point. See Dkt. Nos. 164 at 7, 170 at 7–8. The Court will give the jury a
20 limiting instruction that they are not charged with deciding whether harassment did or did not
21 occur, but instead must consider this evidence only as it bears on whether Plaintiff has met his
22 burden of proving retaliation.
23 The remaining purportedly retaliatory acts Plaintiff identifies in his offer of proof, Dkt. No.
24 164 at 7–10, are excluded. The alleged retaliatory act at issue in this case is, and always has been,
25 solely the placement of Plaintiff in a safety cell for complaining about harassment. At bottom,
26 Plaintiff is, without basis, seeking to expand his claim to encompass several new theories of
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1 retaliation at an extraordinarily late stage of the case.°
2 D. Defendants’ Request to Dismiss Lt. Shannon
3 Defendants have asked the Court to dismiss Defendant Lt. Shannon. See Dkt. No. 170 at
4 10. This issue must be raised in a motion for judgment as a matter of law at the close of □□□□□□□□□□□
5 || case. The Court will not rule on what amounts to a very untimely motion for summary judgment
6 || on the eve of trial.
7 Wl. CONCLUSION
8 Accordingly, the Court GRANTS in part, DENIES in part, and DEFERS in part the
9 parties’ motions in limine. This order terminates Docket Nos. 121, 123, 124, 125, 129, and 130.
10 || The Court DIRECTS the parties to meet and confer and file a trial stipulation to be read to the
11 || jury by November 21, 2022. The parties should also prepare a corresponding modified Ninth
12 || Circuit Model Civil Jury Instruction 2.9 as directed above. The Court DIRECTS the parties to
5 13 file the above-described simultaneous supplemental briefing of no more than two pages with
14 applicable case law on the admissibility of jail disciplinary records by November 21, 2022. The
3 15 parties should be prepared to discuss the issues noted above at the further pretrial conference on
a 16 November 23, 2022.
IT IS SO ORDERED.
1 || pated: 11/18/2022
19 Alsipyrel 8 Mbt □□
HAYWOOD S. GILLIAM, JR.
20 United States District Judge
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07 ® Further, the Court has serious doubts as to whether the identified acts even rise to the level of
adverse actions sufficient to support a retaliation claim. See Dkt. No. 164 at 8-10 (identifying
28 oe in investigation, giving Plaintiff “the finger,” and spreading rumors as additional retaliatory