noting 25 that the offending party has the burden of proving that the failure to disclose was substantially 26 justified or is harmless
How later courts described this case
- noting 25 that the offending party has the burden of proving that the failure to disclose was substantially 26 justified or is harmless
Written by the judges who cited it.
The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 ALICE BROWN, Case No. 18-cv-07826-EMC
8 Plaintiff,
FINAL PRETRIAL CONFERENCE
9 v. ORDER
10 CITY OF CRESCENT CITY, et al.,
11 Defendants.
12
13
14 Plaintiff Alice Brown initiated this suit against multiple defendants, including Crescent
15 City and several of its employees after she was subject to a traffic stop early in the morning of
16 January 1, 2018. The parties agree that the only claim left for trial is a § 1983 claim for an
17 unlawful traffic stop by Defendant Officer Ethan Miller (predicated on the Fourth Amendment as
18 made applicable to the states by the Fourteenth Amendment).
19 I. TRIAL DATE & LENGTH OF TRIAL
20 Jury selection shall take place on February 21, 2023 (Tuesday). Counsel shall be present in
21 the Courtroom at 8:00 a.m.
22 The jury trial shall begin on the same day and shall be completed no later than the
23 following day. Trial shall last from 8:30 a.m. to 4:00 p.m. on the first day; thereafter, trial shall
24 last from 8:30 a.m. to 2:00 p.m. Although the Court is dark on Thursdays, it shall permit jury
25 deliberations on Thursday, February 23, if necessary. On all trial days counsel shall be present in
26 the Courtroom at 8:15 a.m. to discuss any matters requiring resolution prior to commencement of
27 trial at 8:30 a.m.
1 II. WITNESSES
2 Only two witnesses shall testify in this case, namely, the parties themselves (Ms. Brown
3 and Officer Miller). See Docket No. 124 (Appendix A). For the reasons discussed below, the
4 Court is not permitting Mr. Paul (a third party) to testify in support of Ms. Brown’s case. Each
5 side has three and one-half (3.5) hours to present its case. The allotted time covers opening
6 statements, examination of witnesses, and closing arguments.
7 III. EXHIBITS
8 The parties have not filed separate exhibit lists. There is a single exhibit list which
9 identifies only three exhibits: (1) Officer Miller’s body camera footage; (2) Ms. Brown’s driver’s
10 license; and (3) the traffic incident report. There are no objections and thus the exhibits are
11 deemed admissible.
12 IV. MOTIONS IN LIMINE
13 Ms. Brown has not filed any motions in limine. Officer Miller has filed three, which are
14 addressed below.
15 A. Defendant’s Motion in Limine No. 1 (Docket No. 128)
16 In his first motion, Officer Miller seeks to exclude evidence or argument concerning any
17 noneconomic damages suffered by Ms. Brown (such as emotional pain and suffering and loss of
18 enjoyment of life, see Docket No. 126 (Plaintiff’s proposed verdict form)) – in essence, restricting
19 Ms. Brown to economic damages and punitive damages only. According to Officer Miller, Ms.
20 Brown has throughout this litigation sought only economic damages and punitive damages only
21 and thus cannot now change her tune. See Fed. R. Civ. P. 37(c)(1) (providing that, “[i]f a party
22 fails to provide information . . . as required by Rule 26(a) or (e), the party is not allowed to use
23 that information . . . at a trial, unless the failure was substantially justified or is harmless”); see
24 also Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106-07 (9th Cir. 2001) (noting
25 that the offending party has the burden of proving that the failure to disclose was substantially
26 justified or is harmless).
27 The Court DENIES the motion. The Court shall allow Ms. Brown to testify about
1 while she was still proceeding pro se, cited humiliation as part of her injury. She also made
2 reference in the complaint to seeking as relief “$62.34 cost of equipment & actual damages.”
3 Compl. ¶ 23. However, the Court gives Officer Miller some relief because there was also
4 ambiguity in Ms. Brown’s complaint. For example, even though Ms. Brown referred to “$62.34
5 cost of equipment & actual damages,” she thereafter only described the equipment she had
6 purchased (a dash cam). The prayer for relief also refers to the following relief only: “actual
7 damages in the amount of $62.34 for reimbursement costs of dash cam,” plus punitive damages.
8 Similarly, in both her initial disclosures as well as in multiple CMC statements (including those
9 filed after she obtained counsel to represent her), Ms. Brown identified only the cost of the dash
10 cam and punitive damages as the relief being sought, and she did not disclose any calculations
11 related to general damages pursuant to Federal Rule of Civil Procedure 26. Ms. Brown argues
12 that, in the most recent Joint CMC Statement filed on December 1, 2022, she did clarify that
13 emotional distress was at issue: “Relief: Plaintiff is seeking actual damages for $62.34 for
14 reimbursement costs of a dash camera she purchased, humiliation and $5,000,000 in punitive
15 damages against Officer MILLER.” Docket No. 119 (Jt. CMC St. at 4) (filed on 12/1/2022;
16 emphasis added). But by the time of this Joint CMC Statement, both fact discovery and expert
17 discovery had already closed (on August 18, 2022 and September 29, 2022, respectively). See
18 Docket No. 117 (order).
19 To ensure that any failure by Ms. Brown to clearly and timely disclose does not impose
20 undue prejudice to Officer Brown, the Court shall allow Officer Miller to take a short deposition
21 of Ms. Brown (within the next two weeks) so that he may question her about the alleged
22 noneconomic damages suffered. In addition, the Court sets limitations on the scope of Ms.
23 Brown’s testimony on noneconomic damages allegedly suffered.
24 • She may claim only “general” and not “special” damages (e.g., that she has
25 suffered PTSD or any other diagnosed mental injury as a result).
26 • She may not ask the jury to award her a specific amount in noneconomic damages
27 since she did not previously disclose a damages calculation to Officer Miller. See
1 But Ms. Brown is not barred from describing her emotional distress qualitatively –
2 e.g., that it was substantial.
3 • She may testify about her experience on that morning only. She may not testify
4 about other prior stops involving the City police or other prior incidents she has had
5 with the City police.
6 • She may testify that her subjective experience was, e.g., informed by the fact that
7 she is a Black woman and/or her knowledge of other incidents involving Black
8 people being stopped by the police if that was, in fact, in her mind at the time of the
9 incident. (But there may be some Rule 403 limits here – e.g., general testimony
10 about the Black Lives Matter movement shall not be permitted.)
11 At the hearing, Ms. Brown argued that, if Officer Miller tries to characterize her as a
12 litigious person (based on other lawsuits filed), then he should be deprived of the benefits of the
13 Court’s ruling herein. However, the Court shall not prejudge the matter.
14 B. Defendant’s Motion in Limine No. 2 (Docket No. 129)
15 In the second motion in limine, Officer Miller asks the Court to exclude evidence or
16 argument “regarding Plaintiff’s race or Plaintiff’s race being a factor in [his] decision to make this
17 traffic stop” or related to “Black Lives Matter, racial protests or misconduct by police beyond the
18 allegations in this case.” Mot. at 1. Officer Miller underscores that, previously, the Court granted
19 him summary judgment on Ms. Brown’s claim for racial profiling. See Docket No. 108 (Order at
20 11) (“hold[ing] that there is no genuine dispute that there is insufficient evidence to support a
21 claim of racial profiling”). In response, Ms. Brown argues that “[h]er subjective experience as a
22 black person is highly relevant and probative of the degree of humiliation, pain and mental
23 suffering that she subjectively experienced.” Opp’n at 2.
24 The Court GRANTS in part and DENIES in part the motion. As discussed above, the
25 Court shall allow Ms. Brown to testify about how her subjective experience was informed by, e.g.,
26 her status as a Black woman. However, the trial of this case shall not go into collateral matters
27 such as the Black Lives Matter movement. In addition, before Ms. Brown’s counsel begins to
1 on this line of questioning, at which time the Court shall provide a limiting instruction, making
2 clear that there is no racial profiling or race discrimination claim against Officer Miller and that
3 her testimony is relevant only to show that she had pain and suffering beyond the “normal”
4 indignity or fear of being pulled over for a traffic stop without basis.
5 C. Defendant’s Motion in Limine No. 3 (Docket No. 130)
6 Finally, Officer Miller moves the Court to exclude evidence or argument related to “other
7 ‘questionable’ traffic stops” he has made. Mot. at 1. This motion appears to be targeted to a
8 traffic stop involving a third party, William Paul. The motion is GRANTED in part and
9 DENIED in part.
10 Mr. Paul was identified in Ms. Brown’s initial disclosures. See MIL No. 1, Ex. A (Initial
11 Disclosures at 2). Mr. Paul lives in Crescent City and “has his own federal lawsuit for a traffic
12 stop in [the] City, 20-cv-01967-CRB.” Mot. at 3. In her opposition, Ms. Brown argues that, “had
13 the defense bothered to take the deposition of [Mr.] Paul, they would have learned of the relevance
14 of Mr. Paul’s testimony.” Opp’n at 3. According to Mr. Brown, his testimony is relevant because
15 his traffic stop was very similar to hers.
16 In both cases, the traffic stops were made by Officer Ethan Miller;
the traffic stops in both cases were mere weeks apart and took place
17 in the early morning hours (Brown on 1/1/2018 at 3:37 a.m.; Paul on
3/20/2018 at 2:30 a.m.[)]; in both cases Officer Miller travelled
18 Southbound on U.S. Highway 101 and made a U-Turn after
encountering both Brown and Paul, who both travelled Northbound
19 on U.S. Highway 101 just before they were stopped by Miller; in
both cases Brown and Paul allege a baseless pretext for the traffic
20 stop (driving “erratically” under the speed limit in Brown’s case and
“dim” rear view license plate bulb, in Paul’s case).
21
22 Opp’n at 3-4. More important, during Mr. Paul’s traffic stop, Officer Miller effectively admitted
23 that the traffic stop was baseless and indicated that all traffic stops at that time were baseless.
24 Paul will testify that when he asked Officer Miller why Paul would
need to produce license, registration, and proof of insurance when
25 the claimed purpose of the traffic stop was to alert Mr. Paul to repair
a “dim” bulb over his rear license plate, . . . Officer Miller told Mr.
26 Paul that he still had to produce his license, registration and proof of
insurance. “But why?” asked Mr. Paul. Officer Miller responded[:]
27 “That’s what we do out here at night. We pull everybody over.”
1 In assessing this motion in limine, the Court begins by noting that, although Ms. Brown
2 identified Mr. Paul in her initial disclosures, he is not identified in the witness list provided as part
3 of the parties’ joint pretrial filing. At the hearing, Ms. Brown characterized this as a mistake and
4 asked to amend her witness list.
5 The Court shall not permit amendment for several reasons. First, the request is tardy.
6 Second, testimony by Mr. Paul would be contrary to Federal Rule of Evidence 404(b) which
7 governs other “bad acts.”1 See Fed. R. Evid. 404(b)(1)-(2) (providing that “[e]vidence of any
8 other crime, wrong, or act is not admissible to prove a person’s character in order to show that on
9 a particular occasion the person acted in accordance with the character” although the “evidence
10 may be admissible for another purpose, such as proving motive, opportunity, intent, preparation,
11 plan, knowledge, identity, absence of mistake, or lack of accident”). Testimony by Mr. Paul also
12 is not enough to support “habit” evidence. See Fed. R. Evid. 406. That Officer Miller alleged
13 stopped Mr. Paul without basis in addition to Ms. Brown is not evidence of habit. Although
14 Officer Miller allegedly stated, “We pull everybody over,” that statement is vague; there is no
15 information about how many times Officer Miller specifically has pulled people over without
16 basis.
17 That being said, the Court notes that the Paul incident suggests that Officer Miller is
18 untruthful – i.e., Officer Miller’s (alleged) statement to Mr. Paul that “[w]e pull everybody over”
19 lends support to her position that she did not commit any traffic violation and that Officer Miller
20 lied about her committing a traffic violation.
21 Because Officer Miller’s character for truthfulness is at issue here, Federal Rule of
22 Evidence 608 is implicated. Under Rule 608(b), “[e]xcept for a criminal conviction under Rule
23 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in
24 order to attack or support the witness’s character for truthfulness.” Fed. R. Evid. 608(b). Mr.
25 Paul, therefore, cannot testify on the stand about his encounter with Officer Miller. However, “the
26 court may, on cross-examination, allow [specific instances] to be inquired into if they are
27
1 probative of the character for truthfulness or untruthfulness of . . . the witness.” Fed. R. Evid.
2 608(b). The Court therefore shall allow Ms. Brown to question Officer Miller, during cross-
3 examination, about whether he made the alleged statement to Mr. Paul. If Officer Miller denies
4 making the statement, Mr. Paul cannot testify as that would be extrinsic evidence.
5 To the extent Officer Miller has raised a Rule 403 objection, that objection is overruled.
6 So long as the questioning is not extensive (which would arguably get the jury off track into a
7 collateral issue of whether he was justified in stopping Mr. Paul), the probative value of the
8 evidence is not “substantially outweighed” by the danger of unfair prejudice.
9 V. PRELIMINARY STATEMENT TO THE JURY
10 The parties appear to have stipulated to a preliminary statement to the jury at Docket No.
11 127 (captioned “Joint Statement of the Case”). That statement provides as follows:
12 Officer Ethan Miller, in the course and scope of his employment as a
police officer for the City of Crescent City, made a traffic stop on
13 January 1, 2018, of a car being driven by Plaintiff Alice Brown at
approximately at 3:37 a.m. Officer Miller contends the stop was
14 valid as it was early in the morning of New Year’s Day, Plaintiff
veered off the road and then quickly swerved back and her speed
15 fluctuated between 5 to 10 MPH below the posted speed limit, all
potential signs of intoxication. Plaintiff contends there was no valid
16 reason for the stop as she did not veer off the road, was not
intoxicated and controlled her vehicle in a lawful manner.
17
18 Docket No. 127. The statement seems reasonable and therefore shall be given, as stipulated to by
19 the parties.
20 VI. JURY INSTRUCTIONS
21 The Court will address the jury instructions in a separate order. The Court intends to file
22 proposed jury instructions and give the parties an opportunity to raise objections.
23 VII. JURY VERDICT FORM
24 At the hearing, the Court ordered the parties to meet and confer to see if they can reach
25 agreement on a general verdict form. The proposed general verdict form shall be filed by January
26 31, 2023.
27 VIII. VOIR DIRE
1 thereof) in a general questionnaire that is given to potential jurors before they come to the
2 || Courthouse. The Court shall conduct an oral voir dire of jurors on February 21 and shall also give
3 each party the opportunity to ask questions themselves.
4
5 IT ISSO ORDERED.
6
7 Dated: January 27, 2023
8 LL
? —— a ——— □
1 EDWARD M*fCHEN
0 United States District Judge
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