UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES GENERAL

Transcription

1 Case 2:15-cv MWF-JC Document 265 Filed 09/22/16 Page 1 of 12 Page ID #:9800 Present: The Honorable MICHAEL W. FITZGERALD, U.S. District Judge Deputy Clerk: Rita Sanchez Attorneys Present for Plaintiff: None Present Court Reporter: Not Reported Attorneys Present for Defendant: None Present Proceedings (In Chambers): ORDER RE: MOTIONS IN LIMINE [200] [202] [203] [204] [209] [210] [211] [212] [213] [218] [238] Before the Court are the motions in limine filed by both parties from August 30, 2016 through September 6, Plaintiff filed five Motions in Limine (Docket Nos. 202, 203, 204, 218, 238), Defendant Rose filed five Motions in Limine (Docket Nos. 209, 210, 211, 212, 213), and Defendant Allen filed one Motion in Limine (Docket No. 200). The Court has read and considered the papers on the Motions and held a hearing on September 20, The Court rules as follows: Plaintiff s Motion in Limine No. 1: GRANTED in part and DENIED in part. Plaintiff s Motion in Limine No. 2: GRANTED. Plaintiff s Motion in Limine No. 3: GRANTED. Plaintiff s Motion in Limine No. 4: GRANTED, subject to later modification pending the result of the forthcoming Rule 412(c) hearing. Plaintiff s Motion in Limine No. 5: DENIED. Plaintiff s Motion in Limine No. 6: A hearing will take place at the continued Pretrial Conference, September 29, Defendant Allen s Motion in Limine: GRANTED. Defendant Rose s Motion in Limine No. 1: DENIED. 1

2 Case 2:15-cv MWF-JC Document 265 Filed 09/22/16 Page 2 of 12 Page ID #:9801 Defendant Rose s Motion in Limine No. 2: DEFERRED, pending Plaintiff s submission of an Offer of Proof. Defendant Rose s Motion in Limine No. 3: GRANTED in part and DEFERRED in part. Defendant Rose s Motion in Limine No. 4: DEFERRED. Defendant Rose s Motion in Limine No. 5: DENIED. I. PLAINTIFF S MOTIONS IN LIMINE A. Motion in Limine No. 1 to Exclude Photographs Plaintiff seeks to preclude Defendants from presenting or offering into evidence photographs of Plaintiff taken in Las Vegas, Nevada and shared on social media. (See Defendant Rose s Trial Exhibit List ( Rose Ex. ) (Docket No. 208) Nos ; Baute Decl. 3 & Ex. A.). Plaintiff objects to the photographs because they were produced after discovery ended and are irrelevant and prejudicial under Federal Rules of Evidence 402 and 403. At the hearing, Defendant Rose s counsel assured the Court that the photographs had been produced immediately upon their receipt. As to the merits, Defendant Rose contends that the photographs are relevant to proving Plaintiff s state of mind, which she has placed into controversy by claiming damages for emotional distress. (Docket No. 226). Defendant Rose states that his expert witness, Dr. Jones, will rely on the photographs in forming her opinion about Plaintiff s mental condition. Defendant Rose also intends to call Gabriela Chavez to testify about Plaintiff s conduct and demeanor after August 26 27, 2013, including partying with Plaintiff in Las Vegas in September (Opp. at 3 4). Photographs of Plaintiff s demeanor in the time following her alleged rape could be relevant to damages; that is, Plaintiff s mental condition after August 27, 2013, is relevant to the extent of the emotional distress she was caused. However, the Court will not permit the introduction of such evidence for purposes of determining liability, 2

3 Case 2:15-cv MWF-JC Document 265 Filed 09/22/16 Page 3 of 12 Page ID #:9802 as it is irrelevant and likely to confuse the jury. Fed. R. Evid. 402, 403. Moreover, the large quantity of photographs risks becoming cumulative. Fed. R. Evid The Court will allow only five photographs to be introduced, and only through the testimony of Dr. Jones, to the extent her testimony relates to Plaintiff s claimed emotional distress damages. Accordingly, Plaintiff s Motion is GRANTED in part and DENIED in part. B. Motion in Limine No. 2 to Preclude Testimony about Plaintiff s Attorney, Brandon Anand Plaintiff seeks to preclude Defendants from introducing the testimony of Keyana Lavergne, who testified at her deposition about Plaintiff s attorney, Brandon Anand s, social relationship with Plaintiff. (Docket No. 203, amended Docket No. 217). Specifically, Plaintiff seeks to preclude testimony about Anand s behavior and demeanor in Plaintiff s presence as irrelevant and prejudicial. (Id.). Defendant Rose contends that evidence about Plaintiff s failure to contact law enforcement about her claims early on, despite the fact that she had retained counsel, is relevant to the validity of Plaintiff s claims. (Docket No. 227). Additionally, Defendant Rose contends that testimony about Anand s social relationship with Plaintiff is relevant to her credibility. (Id.). Testimony about Anand s social relationship with Plaintiff is wholly irrelevant to the question of whether Plaintiff consented to have sex with Defendant Rose and his friends on August 27, and the Court will exclude it. Fed. R. Evid Defendants may question Plaintiff about her decision to contact law enforcement without reference to Plaintiff s relationship with her attorneys at the time. The Court will instruct the jury on when Plaintiff retained counsel, if the parties so request. Accordingly, Plaintiff s Motion is GRANTED. 3

4 Case 2:15-cv MWF-JC Document 265 Filed 09/22/16 Page 4 of 12 Page ID #:9803 C. Motion in Limine No. 3 to Preclude Evidence of Settlement Discussions Plaintiff s third motion in limine cryptically states that Defendants Rose, Hampton and Allen plan to introduce statements and remarks made during settlement negotiations relating to Plaintiff and Plaintiff s attorney Brandon Anand and argues that the correspondence [sic] these remarks were made in were within settlement discussions and are inadmissible under [Rule] 408. (Docket No. 204). Defendant Rose responds that the Motion in Limine lacks sufficient specificity for Defendant to properly oppose the motion, but states that he does not oppose Plaintiff s motion with respect to excluding offers of settlement[,] generally speaking. (Docket No. 228). Plaintiff s Motion lacks the specificity this Court requires of motions in limine. (See Docket No. 46). Nevertheless, to the extent that Plaintiff s counsel wishes to emphasize that evidence of settlement discussions that are inadmissible under Rule 408, the Motion is GRANTED. D. Motion in Limine No. 4 to Preclude Discussion of Doe s Prior Relationships and Sexual Predispositions Plaintiff seeks to preclude Defendants from introducing evidence of her prior relationships and sexual predispositions. (Docket No. 218). Defendant Rose responds that such evidence is relevant to show consent and to rebut Plaintiff s claims of a traditional upbringing. (Docket No. 229). For the time being, Plaintiff s Motion is GRANTED. Any such evidence is flatly inadmissible under Federal Rule of Evidence 412(a). The Court s order may be modified, however, pending the outcome of the Rule 412(c) hearing, which will be held next Thursday, September 29. // // 4

5 Case 2:15-cv MWF-JC Document 265 Filed 09/22/16 Page 5 of 12 Page ID #:9804 E. Motion in Limine No. 5 to Prevent Keyana Lavergne from Testifying Finally, Plaintiff seeks to preclude Keyana Lavergne from testifying. (Docket No. 238). Plaintiff does not clearly explain what portion of Lavergne s testimony she seeks to preclude. (Id.). However, she argues that Lavergne s testimony is an improper expert opinion under Rule 701, hearsay under Rules , irrelevant under Rule 401, and prejudicial under Rule 403. (Id.). Defendant Rose responds that Plaintiff s Motion is untimely and lacks the specificity this Court requires of motions in limine. (Docket No. 245; see also Docket No. 46). Defendant Rose further argues that Lavergne s testimony is based on personal knowledge, and therefore not an improper expert opinion; is the admission of a party opponent, and therefore not hearsay under Rule 801(d)(2); and is both relevant and probative, as required by Rules 401 and 402. Lavergne s testimony about statements made by Plaintiff about the alleged rape after August 27 are relevant to and probative of her credibility. Fed. R. Evid. 401, 402. Lavergne s repetition of statements made by Plaintiff are admissible as opposing party statements under Rule 801(d)(2). Because she has not been qualified as an expert on the subject, Lavergne may not testify about how a rape victim would or should act in the immediate aftermath of the rape. See Fed. R. Evid However, under Rule 701, Lavergne may testify to her own observations of Plaintiff s demeanor and actions after August 27, as a lay witness. Fed. R. Evid. 701 (requiring that lay witness testimony in the form of an opinion is limited to one that is rationally based on the witness s perception. ). It is then for the jury to determine whether Plaintiff s actions were consistent with rape. At the hearing, counsel for the defense indicated that Lavergne recently moved to Miami and may be unavailable to testify at trial. Defendant Rose proposed a deposition designation date of September 22, objections to be filed by September 27, and the matter to be heard at the continued Pretrial Conference, scheduled for September 29. Plaintiff s counsel indicated their consent and the Court will proceed in this fashion. 5

6 Case 2:15-cv MWF-JC Document 265 Filed 09/22/16 Page 6 of 12 Page ID #:9805 Accordingly, Plaintiff s Motion is DENIED. F. Motion in Limine No. 6 to Exclude Expert Opinions by Jayme Jones Not Included in Her June 20, 2016 Report Plaintiff filed this motion in limine after the deadline, on the eve of the Pretrial Conference. The Court had insufficient time to prepare a tentative decision on this motion and therefore will wait to issue its decision until it hears oral argument on the motion at the September 29 hearing. II. DEFENDANT ALLEN S MOTION IN LIMINE Defendant Allen seeks to preclude Plaintiff from introducing evidence regarding Defendant Allen s telephone calls to massage parlors, escort services, and sex workers in the weeks following August 27. (Docket No. 200). Defendant Allen contends that Plaintiff seeks to introduce the phone calls under the theory that individuals who patronize sex workers are more likely to commit rape. (Id.). Defendant contends that Plaintiff lacks any sort of expert testimony to support her theory and, alternatively, contends that the phone calls are improper character evidence Under Rule 404 and irrelevant and highly prejudicial under Rules 401 and 403. (Id.). Plaintiff responds that Defendant Allen s phone calls to sex workers and sex establishments around the time of the alleged sexual assault shows that he was seeking out sex, and his motive and intent was to have sex with anyone during that time period. (Docket No. 232). Rape is a crime of violence, not desire, and therefore evidence relating to Defendant Allen s sex drive or sexual appetites on and around August 27, 2013, is irrelevant to the question of whether Plaintiff consented to sex on that night. Fed. R. Evid Moreover, the Court agrees with Defendant Allen that certain segments of the population view with disfavor, if not disgust men who would inquire about or use the services of sex workers. Given that such evidence is not probative of Defendant Allen s conduct on the night in question, the Court finds that introduction of such evidence would be unduly prejudicial and would potentially confuse the jury. Fed. R. Evid

7 Case 2:15-cv MWF-JC Document 265 Filed 09/22/16 Page 7 of 12 Page ID #:9806 Accordingly, Defendant Allen s Motion is GRANTED. III. DEFENDANT ROSE S MOTIONS IN LIMINE A. Motion in Limine No. 1 to Preclude Plaintiff from Referencing the Possibility She was Drugged Defendant Rose seeks to preclude Plaintiff from introducing any evidence or testimony that she was drugged on August 26 27, (Docket No. 209). Defendant contends that Plaintiff has adduced no evidence that she was drugged, and therefore any references to Plaintiff s claim to have been drugged would confuse the issue and mislead the jury, under Rule 403. Plaintiff argues that she should be able to present evidence of her level of intoxication that night because, whether due to drugs or to alcohol, Plaintiff s level of intoxication is directly relevant to her ability to consent to sex with Defendants. (Docket No. 233 at 3). At the hearing, Plaintiff s counsel made clear that Plaintiff will offer testimony that she felt like she had been drugged the night of August 26. Counsel for all Defendants responded that Plaintiff s intended testimony would be an improper expert opinion because Plaintiff is not qualified to determine whether she was drugged. Settled law makes clear that Plaintiff may testify to how she felt the morning of August 27. [Rule] 602, governing the personal knowledge requirement, and [Rule] 701, governing lay witness opinions, should be read together. Thomas A. Mauet & Warren D. Wolfson, Trial Evidence 4.7 (6th ed. 2016). Under Rule 602, a witness may testify to any matter of which the witness has personal knowledge that is, the witness s personal observations, experiences, and perceptions. Fed. R. Evid Rule 701 permits a lay witness to testify to any matter within the witness s personal knowledge, so long as it is not based on scientific, technical, or other specialized knowledge. Fed. R. Evid This means that opinion testimony should only be considered lay and not expert opinion if the average person, having been in the same position as the witness, could provide the testimony. David P. Leonard et al., The New Wigmore: A Treatise on Evidence 2.6 (2016); accord United States v. Skeet, 7

8 Case 2:15-cv MWF-JC Document 265 Filed 09/22/16 Page 8 of 12 Page ID #: F.2d 983, (9th Cir. 1982) (noting that lay witness testimony must be predicated upon concrete facts within [the witness s] own observation and recollection that is facts perceived from their own senses (quotation marks omitted)). Here, Plaintiff s counsel have represented that she will testify as to her own experiences and feelings the morning of August 27. Because her proposed testimony is within her personal knowledge, it is not impermissible expert testimony, as defined in Rule 702. Cf. United States v. Mastberg, 503 F.2d 465, 470 (9th Cir. 1974) (holding that a lay witness may state [her] opinion that a person appeared nervous or intoxicated (emphasis added)). To the extent that Plaintiff intends to testify only about her own feelings or experiences that morning, the Court concludes that her testimony is admissible. A necessary corollary to this conclusion is that Plaintiff may not testify about technical or scientific reasons to believe she may have been drugged. Finally, Defendants will not be prejudiced, as they may rebut Plaintiff s testimony through cross-examination. Defendants may also offer the testimony of their designated expert witness. Accordingly, Defendant Rose s Motion is DENIED. B. Motion in Limine No. 2 to Preclude Plaintiff from Eliciting Hearsay Testimony Regarding Her Version of Events Defendant Rose seeks to preclude Plaintiff from introducing certain testimony of Tommie McCaster, Deanna Duncans, Claudia Carleo, and Marcella Carleo. (Docket No. 210). Specifically, Defendant Rose seeks to preclude admission of any testimony by McCaster, C. Carleo, and M. Carleo about the details of Plaintiff s alleged rape, as told by Plaintiff. (Id.). Defendant Rose contends that this testimony is inadmissible hearsay under Rule 802 and unduly prejudicial and cumulative under Rule 403. (Id.). Defendant Rose also seeks to preclude admission of any testimony by Duncan as to her knowledge of Defendant Rose s requests for group sex, and Plaintiff s refusal to participate in group sex. (Id.). 8

9 Case 2:15-cv MWF-JC Document 265 Filed 09/22/16 Page 9 of 12 Page ID #:9808 Plaintiff contends that all of the preceding testimony is admissible as evidence of her then-existing mental or emotional condition, under Rule 803(3). (Docket No. 234 at 2). Plaintiff views this testimony as directly relevant to the question of whether she consented to sex on August The case most favorable to Plaintiff is Wagner v. Cty. of Maricopa, 747 F.3d 1048, (9th Cir. 2013) (holding that trial court erroneously excluded a witness testimony about the victim s recollection of being sexually assaulted in prison because the testimony was admissible not to prove the fact remembered or believed but the mental feeling of [the victim] ). In Wagner, however, the out-of-court declarant s statements were relevant regardless whether his delusional account actually occurred or not. Id. Here, there is no obvious, independent relevance to Plaintiff s mental or emotional condition apart from the truth of the allegation of rape. On the other hand, Defendants appear to have placed Plaintiff s mental state on the morning of August 27 into play, by submitting testimony that she appeared happy and normal that morning. Moreover, Defendants claim Plaintiff s failure to report the rape to the police or her parents after the fact indicate that she did consent to sex on August It may be, then, that Plaintiff s statements to her roommates or colleagues that she had been raped are prior consistent statements, and thus exempt from the hearsay rule. See Fed. R. Evid. 801(d). But based on Plaintiff s current description of the witness likely testimony, the Court does not have enough information to decide one way or the other. As for Duncans anticipated testimony that Defendant Rose asked Plaintiff to participate in group sex, such testimony likely would be inadmissible hearsay under Rule 802. The Court struggles to see how, practically speaking, Duncans could have personal knowledge of Defendant Rose s requests for group sex (and Plaintiff s refusals of Rose s requests) when she does not know him and has never met him. Again, however, it is unclear what Duncans testimony will be, and thus the Court cannot determine whether that testimony would qualify for some other hearsay exception, as Plaintiff urges. 9

10 Case 2:15-cv MWF-JC Document 265 Filed 09/22/16 Page 10 of 12 Page ID #:9809 The foregoing questions simply cannot be resolved based on Plaintiff s vague descriptions of McCaster, C. Carleo, M. Carleo, and Duncans likely testimony. At the hearing, the Court requested that Plaintiff submit an offer of proof as to the testimony of these witnesses, to be heard on September 29. The Court will DEFER its ruling on Defendant Rose s second motion in limine until that date. C. Motion in Limine No. 3 to Exclude Exhibits as Irrelevant Defendant Rose seeks to exclude a number of Plaintiff s proposed exhibits as irrelevant, under Rule 401, and as prejudicial and cumulative, under Rule 403. (Docket No. 211). 1. Exhibit No. 6: Advertisements of Sex Workers Called By Defendant Allen After the Alleged Attack The Court agrees with Defendant Rose that this exhibit is irrelevant and unduly prejudicial under Rules 401 and 403 for the same reasons set out in Part II, supra. Defendant Rose s Motion is GRANTED as to this exhibit. 2. Exhibit Nos. 8 and 9: Video of Plaintiff at Consent is Mandatory Event and Video of Plaintiff Watching a Lady Gaga Performance At the hearing, Plaintiff agreed to withdraw these exhibits. 3. Exhibit Nos. 10, 11: Photo and Video of Doe s PTSD Symptoms Defendant Rose contends that a photo and video of the PTSD symptoms Plaintiff claims to have developed as a result of her alleged rape bear only a tenuous connection to her claims of PTSD. Plaintiff responds that she has claimed damages due to emotional distress and that the exhibits will be used by her expert witness while discussing Plaintiff s PTSD symptoms. 10

11 Case 2:15-cv MWF-JC Document 265 Filed 09/22/16 Page 11 of 12 Page ID #:9810 The Court will defer ruling on these exhibits until Plaintiff has submitted them, under seal, for the Court s review. // 4. Exhibit Nos. 15, 16: News Publications and California Supreme Court Opinions Referencing Dr. Lykissa Plaintiff has agreed to withdraw these exhibits. part. In sum, Defendant Rose s Motion is GRANTED in part and DEFERRED in D. Motion in Limine No. 4 to Preclude Deanna Duncans Testmiony and to Preclude Introduction of Plaintiff s Exhibit No. 7 The Court will DEFER ruling on Defendant Rose s fourth motion in limine until after the September 29 hearing, consistent with its ruling in Part III.B, supra. E. Motion in Limine No. 5 to Exclude the Testimony of Jacklyn Moreno Finally, Defendant Rose seeks to preclude Plaintiff from eliciting the testimony of the testimony of Jacklyn Moreno, the on-site apartment manager at the time of the alleged rape. (Docket No. 213). Plaintiff expects Moreno will testify that the entrance doors to Plaintiff s apartment had no buzzer. Defendant contends that this testimony is unnecessary, as both parties agree that Plaintiff s apartment had no buzzer, citing Rules 401 and 403. The Court will impose strict time limits on all parties at trial. The Court doubts that the testimony of this witness, if indeed it is cumulative on an undisputed point, is something that Plaintiff will pursue. Nevertheless, the decision is hers. Accordingly, Defendant s Motion is DENIED. 11

12 Case 2:15-cv MWF-JC Document 265 Filed 09/22/16 Page 12 of 12 Page ID #:9811 IT IS SO ORDERED. 12