Judge: Bruce G. Iwasaki, Case: 19STCV02594, Date: 2022-09-01 Tentative Ruling
Case Number: 19STCV02594 Hearing Date: September 1, 2022 Dept: 58
Judge Bruce G. Iwasaki
Hearing Date: September 1, 2022
Case Name: Lillian
Carranza v. City of Los Angeles
Case
No.: 19STCV02594
Motion: Motions
in limine by Plaintiff and Defendant
Plaintiff’s
Motions in Limine
Plaintiff’s MIL no. 1 to preclude Defendant from introducing
evidence that attorney Smith was the first individual to alert her about the
nude picture.
Denied. The circumstances of when and how
Plaintiff learned of and first saw the photograph is relevant on the issue of
whether harassing conduct created a hostile work environment that was the cause
of harm to Plaintiff. Plaintiff suggests
that Defendant is forcing trial counsel to testify, but that is not the
issue. Most of the motion recounts an
alleged chronology far beyond the issue addressed. The evidence sought to be excluded is not
unduly prejudicial because Plaintiff contends her superiors were delinquent in
their duty to notify her of the photograph.
She has placed in issue the timing and circumstances of when she first
saw the photograph and was told about it.
Plaintiff’s MIL no. 2 to preclude Defendant from introducing
evidence regarding statements attributed to her attorney in the investigation
into the picture that it would be difficult to identify who circulated the
photograph.
Denied. Plaintiff has placed in issue both the
circumstances of her awareness of the photograph and who circulated it. She contends the Defendant failed to take adequate
remedial action. This is directly
related to Defendant’s investigation of the origin of the photograph, Plaintiff’s
attorney’s knowledge of that fact, and the effect of the attorney’s conduct on Defendant’s
effects to investigate and remediate the episode. Plaintiff asserts that the statement is
”incorrectly” attributed to her lawyer and “does not appear to be an accurate
representation of any statement by Mr. Smith.”
But denying a statement is true is not a ground for the Court finding it
inadmissible.
Plaintiff’s MIL no. 3 to preclude Defendant from introducing
any expert testimony by Dr. Jay Finkelman.
Denied. Whether Defendant adequately responded to
reports about the picture is the essence of Plaintiff’s theory of the
case. An opinion on appropriate
practices are sufficiently beyond common experience as potentially to assist
the trier of fact. Plaintiff will have
an opportunity to cross-examine the expert, and offer rebuttal testimony, all
of which the jury will consider.
Plaintiff’s MIL no. 4 to preclude Defendant from introducing
any expert testimony by Dr. Nathan Lavid on whether Plaintiff has exaggerated
her emotional distress.
Denied. The motion mischaracterizes the proposed
expert testimony as an opinion on Plaintiff’s general credibility. In any case,
the proposition that a party may be precluded from introducing “any expert
testimony on Plaintiff’s credibility” is contrary to Evidence Code section
785. With respect to arguments against
the opinion of Dr. Lavid, Plaintiff’s arguments go to weight, not
admissibility. Plaintiff will have an
opportunity to voir dire and cross-examine the expert, and offer rebuttal
testimony, all of which the jury will consider.
Plaintiff’s MIL no. 5 to preclude Defendant from
“mischaracterizing the self-imposed limits on Dr. Lavid’s mental exam as
externally imposed and from opining that Dr. Lavid was unable – not unwilling –
based on these limits to rule out that Plaintiff was addicted to opiates, that
she was exaggerating, and other opinions adverse to her.”
Denied in
part; granted in part. The actual
motion in limine goes far beyond the summary title and renders the motion inappropriate
as an instrument to ensure that inadmissible evidence is kept from the jury. The motion must contain a “specific
identification of the matter alleged to be inadmissible or prejudicial.” (Los
Angeles County Court Rules, rule 3.57(a).) Plaintiff’s objections are argument
and go to the weight to be accorded the witness’s testimony. If Dr. Lavid testifies contrary to any report
or prior testimony, Plaintiff is free to impeach him. The Court rules as follows: unless Defendant has admissible evidence that
Plaintiff was, during the relevant time period, addicted to opiates, and provides
such evidence to Plaintiff prior to the final status conference, no evidence of
any speculation, innuendo, or “inability to rule out” such alleged addiction
will be presented to the jury in any context.
Such speculation has no probative value and is likely to confuse the
issues and mislead the jury. In all
other respects the motion is Denied.
Plaintiff’s MIL no. 6 to preclude evidence concerning
Plaintiff’s prior lawsuits.
Granted
conditionally. Plaintiff seeks to
preclude evidence of two lawsuits filed by Plaintiff, but wishes to permit
certain facts to be received about one of them. The Court rules as follows: Defendant may not introduce evidence
concerning any lawsuit filed by Plaintiff unless in Plaintiff’s case, the
existence of such a lawsuit is received in evidence. If in Plaintiff’s case any lawsuit filed by
Plaintiff is mentioned, Defendant will not be precluded from introducing any
other evidence concerning that specific lawsuit, including its outcome. The disputes in the prior lawsuit will not be
relitigated in this case.
Plaintiff’s MIL no. 7 to preclude evidence of Plaintiff’s
financial condition.
Granted in
part. Plaintiff seeks to preclude evidence regarding her
income, assets, liabilities and financial condition. Absent a particularized showing of relevance
by Defendant, financial information concerning Plaintiff is irrelevant. Appealing to the social or economic prejudices
of the jury, including the wealth or poverty of the litigants, is misconduct. (Hoffman v. Brandt (1966) 65 Cal.2d
549, 553.) Plaintiff is not seeking economic
damages. Specifically, Defendant may not
seek to elicit evidence concerning Plaintiff’s hiring of a housekeeper or the
number of residences she has. In
contrast to the issue of Plaintiff’s financial condition however, Defendant may
inquire of Plaintiff how long she plans to work at LAPD and the effect of
enrolling in the DROP program. That
information is relevant to Plaintiff’s claim of a pervasively hostile work
environment.
Plaintiff’s MIL no. 8 to preclude evidence withheld on a
claim of privilege.
Denied. Plaintiff seeks to preclude evidence Defendant
withheld from Plaintiff based on a claim of privilege including any document
contained in CF#19-000440. The general
motion in limine is insufficiently specific under Los Angeles County Court Rule
3.57. That said, as a general matter, and in the absence of a countervailing
showing, any document specifically demanded by a party in discovery but not
produced, shall not be introduced in trial by the non-producing party. However,
such evidence may, after a proper offer of proof, be used to impeach a witness.
Nothing in this ruling alters the
Court’s order of January 14, 2022.
Plaintiff’s MIL no. 9 to preclude evidence of Gregory Smith’s email
communications with Anita Carter regarding Plaintiff’s interview about the
picture.
Denied. Plaintiff’s motion broadly seeks to
preclude evidence of any
“statements or actions” by Plaintiff’s counsel Gregory Smith related
to the nude photograph. The motion specifically
seeks exclusion of an email Smith sent to Anita Carter, an investigator in the
City’s Personnel Department about Plaintiff’s complaint to the Department in
November 2018, before Plaintiff commenced litigation. In the email, Mr. Smith stated he had
instructed Plaintiff to “cease any further communication” with the person
investigating Plaintiff’s complaint. This MIL appears to overlap with MIL no.
1. Plaintiff contends that Defendant
failed promptly to take ameliorative steps regarding the photograph. Accordingly, the promptness and completeness
of Defendant’s investigation is a relevant issue. In that
regard, Mr. Smith’s conduct is relevant because it was apparently he who first
informed Plaintiff of the photo and first showed it to her, and it was on his
instruction that Plaintiff stop cooperating with the City’s investigation. Mr. Smith’s conduct is relevant and its
probative value outweighs any prejudicial impact.
. . .
Defendant’s
Motions in Limine
Defendant’s MIL no. 1 to preclude opinion testimony of
de-designated experts, whether for impeachment or rebuttal.
Granted. Defendant seeks to preclude the testimony
of formerly designated, later withdrawn as experts, witnesses Debra Glaser,
Ashraf Nashed, Robert Weissman, and Musher Gennady. Defendant was precluded from taking the
depositions of these individuals. In
opposition to the motion, Plaintiff is coy about what evidence these witnesses
will offer. These witnesses will not be
permitted to testify as to any opinions or to contradict the opinions of other
experts. If Plaintiff seeks to call any of
them as a percipient witness, the Court will require a detailed offer of proof outside
the presence of the jury as to facts and foundation for what they expect to
testify to.
Defendant’s MIL no. 2 to “exclude evidence regarding alleged
conduct and hearsay” from or related to non-parties.
Granted in
part; denied in part. This confusingly drafted, preposition-intensive
motion seeks to exclude “Plaintiff’s claims of conduct by or hearsay from or
related to non-party organizations including conduct by and Plaintiff’s alleged
communications with or about” certain law enforcement related associations. As phrased the motion is overbroad and fails
to specifically identify the matter alleged to be inadmissible and
prejudicial.
The motion states that two categories
of evidence are involved. The first
includes “conversations” with members of various law enforcement related
associations. As stated, this is also
too broad, because, for example, it could include conversations with officers
who happen to be member of such associations.
However, absent a specific offer of proof made outside the presence of
the jury, any statement made or action taken in the name of, or on behalf of,
any non-party association will be excluded, and not raised in testimony or any
statement to the jury. Such statements
and actions are irrelevant to the issues and would confuse the jury. Plaintiff’s counsel may not seek to elicit
such evidence.
The second topic is whether Plaintiff
was made treasurer of the Hispanic American Police Command Officer’s
Association. The topic is irrelevant, as
are Plaintiff’s feelings and beliefs about the topic. Plaintiff’s counsel may not seek to elicit
such evidence.
Defendant’s MIL no. 3 to exclude statements of anonymous
caller and hearsay conversations.
Granted. Defendant appears to seek to preclude various
conversations several people purportedly had with Plaintiff about the
photograph. The context of the
“statements” is important. Court testimony
from a witness that she saw the photograph circulated within the workplace on a
certain date is likely not excludable because it recites personal knowledge
that is relevant. But the following
would be excludable and to that extent the motion in limine is granted:
·
Plaintiff
or other witness recounting a conversation with a person who stated he saw the
photograph circulated.
·
Plaintiff
or other witness testifying that he had learned from someone that the
photograph had circulated on a certain date.
·
Plaintiff
relating a conversation in which she was told that a picture of her had been
circulated.
Such testimony, and similar iterations, are excludable for
lack of foundation, lack of relevance, likelihood of confusing the issues and
misleading the jury, and hearsay. Plaintiff
may not seek to introduce conversation of what others told her.
Defendant’s MIL no. 4 to exclude certain claims beyond
Plaintiff’s complaint.
Granted. Defendant in this multi-topic motion seeks to
preclude allegations about pornographic text messages and an explicit email
Plaintiff received, disparaging remarks by Lt. Perez, and a claim about the
reason she was not made the treasurer of an organization. These events allegedly occurred after the
Superior Court action was filed. The sexually
explicit text and email, and the alleged remarks of Lt. Perez – not spoken in
Pl’s presence – have no connection to the allegations in the Complaint. They
will not be received into evidence, and Plaintiff may not seek to elicit such
evidence. Plaintiff’s beliefs about not
being made treasurer of HAPCO are likewise irrelevant.
Defendant’s MIL no. 5 to exclude evidence regarding or about
Frank Lyga.
Granted;
unopposed. Defendant seeks to preclude evidence about an incident involving
sexist and arguably racist comments purportedly made about Plaintiff by Frank
Lyga. Plaintiff states she will not
introduce such evidence unless Defendant opens the door. Evidence of Lyga’s comments are excluded.
Defendant’s MIL no. 6 to exclude evidence related to Ysabel
Villegas, revenge porn, and publications related thereto, including by Jasmyn
Cannick.
Granted. This motion Defendant seeks to exclude
evidence concerning a claim of domestic violence by officer Villegas against
yet another officer, and an article published about the episode. It includes a Glendora police department
report; the files in a domestic violence case between Villegas and Danny Reedy;
text messages between them; internal investigations relating to Ms. Villegas;
and publications relating to them, including one by Jasmyn Cannick. None of this is relevant, and to the limited
extent it might be, it is likely to confuse the issues and mislead the jury. Much
of it is likely to be inadmissible hearsay.
None of the facts or circumstances involving Ms. Villegas, and none of
the documents mentioned above will be received in evidence. Plaintiff may not seek to elicit any mention
of such evidence.
Defendant’s MIL no. 7 to exclude evidence regarding an
alleged “code of silence” at the Los Angeles Police Department.
Denied,
conditionally. Defendant seeks an
order precluding Plaintiff and her counsel from “mentioning, referring to, or
introducing at trial any argument or evidence of an alleged ‘Code of
Silence.’” This motion is not well taken
primarily because it is overbroad. To
the extent a culture of Defendant’s department countenances harassment or a
hostile environment and discourages reporting it, it is directly relevant to
this matter. A witness may testify to
personal experience that he or she felt pressure not to speak or report truthfully
about a matter, or about an episode based on personal knowledge in which another
officer succumbed to such pressure. Such
a witness may not speculate about whether other officers hold similar views. On the other hand, testimony from a witness who
merely believes in the existence of a “Code of Silence” without personal knowledge,
or has been told of such a phenomenon, is of no probative value. The latter type of evidence may not be
elicited and will not be received.
Defendant’s MIL no. 8 to exclude evidence regarding Caroline
Aguirre’s alleged report relating to photos.
Granted. Defendant seeks to exclude evidence relating
to “the alleged report” of Aguirre “regarding hearsay related to photos.” The purported report of Ms. Aguirre, as
described in her December 5, 2020 declaration, lacks personal knowledge and
contains multiple levels of hearsay. It is
also irrelevant because it appears to concern photos not involved in this case. Testimony by Ms. Aguirre and any purported
report she made relating to photos are excluded.
Defendant’s MIL no. 9 to exclude reference to medical bills
not actually charged to Plaintiff.
Granted. Defendant seeks to preclude introduction of,
or reference to, medical bills “not actually charged to Plaintiff or her
insurance provider.” The Court
understands this to exclude evidence of medical charges not paid by Plaintiff
or her insurer. In offering evidence of
medical expenses claimed in this case, Plaintiff is limited to, and must prove,
amounts actually paid by her, paid by her insurer, or which are still owing to the
provider at the time of trial. To the
extent Plaintiff seeks to present to the jury any expenses beyond that, they
will be excluded. (Howell v. Hamilton
Meats & Provisions, Inc. (2011) 52 Cal.4th 541; Ochoa v. Dorado
(2014) 228 Cal.App.4th 120.) This
may be moot: Based on her opposition to Defendant’s
MIL no. 14, the Court understands Plaintiff is not seeking economic damages or
past noneconomic damages. Plaintiff offered
no substantive opposition to the motion.
Defendant’s MIL no. 10 to exclude lay witness opinions what
“should have been done” by Defendant.
Granted.
Defendant seeks to preclude evidence mentioning or referring to “any lay
witness opinions regarding how the City responded and what the City ‘should
have done’ in relation to the nude photograph that is the subject of the case.” Knowledge about appropriate practices for
conducting sensitive internal investigations within a law enforcement entity is
well beyond common experience and is inappropriate for other than expert
opinion. No lay witness will be
permitted to offer an opinion on the topic, and Plaintiff shall not seek to
elicit such testimony.
Defendant’s MIL no. 11 to exclude inflammatory language to
describe the evidence in the case.
Denied. Defendant
seeks to prohibit Plaintiff from using “inflammatory language (such as
‘obscene’ or ‘grotesque’) to describe the photograph, or other evidence, at
issue in this case.” While it is
misconduct for counsel to make an argument that presents “inflammatory rhetoric
that diverts the jury’s attention from its proper role, or invites an
irrational, purely subjective response,” (People v. Sanchez (20189) 7
Cal.5th 14, 66-67), the Court will not at this stage bar specific
words. The Court will determine in
context, when a party makes an improper appeal to the juror’s emotions. The jurors will be instructed to base their
verdict on the evidence, not arguments of counsel.
Defendant’s MIL no. 12 to exclude evidence relating to race,
ethnicity, ethnic makeup, or any other protected classification other than
sex/gender.
Denied.
Defendant moves to preclude Plaintiff or her counsel from mentioning
race, ethnicity, or any other protected classification other than sex/gender. The
motion is breathtakingly overbroad; it is not limited to any person at
all. The jury will see and draw
conclusions about the ethnicity or race of everyone in the courtroom.
Defendant’s MIL no. 13 to exclude allegations of claimed
retaliation by Patricia Luevanos.
Granted
in part; denied in part. Defendant
seeks to exclude evidence of Ms. Luevanos’s retaliation claims after she
reported observing photographs that may have included the photograph at
issue. Defendant believes Plaintiff may
introduce evidence at trial to “advance a claim of retaliation by Ms.
Luevanos.” Ms. Luevanos will be allowed
to testify to what she saw and heard with respect to the photograph at issue in
this case, and whether she saw it being circulated, by whom, where, and when. She will be allowed to testify to what she
did in response to seeing the photograph. She will not be permitted to testify about
conduct directed toward her, or any claim of retaliation she may have
made. To the extent Ms. Luevanos’s claim
is one for retaliation, it is insufficiently similar to Plaintiff’s claim to be
probative, and will likely confuse the issues and mislead the jury.
Defendant’s MIL no. 14 to exclude damages covered by Workers’
Compensation proceedings.
Denied. Defendant seeks to exclude any evidence or
argument “of or relating to damages covered by Plaintiff’s Workers Compensation
matters.” Plaintiff contends she is seeking only future emotional
distress damages, not what has been paid through Workers’ Compensation. (The Court understands Plaintiff’s argument
to mean that for purposes of the verdict form, only future noneconomic loss is
sought.) Defendant misconceives the
Supreme Court’s decision in City of Moorpark v. Superior Court (1988) 18
Cal.4th 1143. Among other
things, that case spoke of precluding double recovery for economic damages. (Id. at p. 1158.) Nothing precludes either party from offering
evidence and argument against a double recovery for the same injury. Plaintiff concedes that she may not recover
the “same damages twice.”