Opinion
22-cv-07510 KAW (JCS)
05-21-2024
JOAQUIN CIRIA, Plaintiff, v. CITY AND COUNTY OF SAN FRANCISCO; SAN FRANCISCO POLICE DEPARTMENT; ARTHUR GERRANS; JAMES CROWLEY; NICOLAS J. RUBINO; AND DOES 1-20, INCLUSIVE, Defendants.
DAVID CHIU, JENNIFER E. CHOI, PETER J. KEITH, AARON I. WIENER, JOSE A. ZELIDON-ZEPEDA, Attorneys for Defendants CITY AND COUNTY OF SAN FRANCISCO (including its SAN FRANCISCO POLICE DEPARTMENT), ARTHUR GERRANS, JAMES CROWLEY, AND NICHOLAS J. RUBINO
Hearing Date: May 2, 2024
Dkt. No. 101
DAVID CHIU, JENNIFER E. CHOI, PETER J. KEITH, AARON I. WIENER, JOSE A. ZELIDON-ZEPEDA, Attorneys for Defendants CITY AND COUNTY OF SAN FRANCISCO (including its SAN FRANCISCO POLICE DEPARTMENT), ARTHUR GERRANS, JAMES CROWLEY, AND NICHOLAS J. RUBINO
[PROPOSED] ORDER ON DEFENDANTS' OBJECTIONS TO PLAINTIFF'S EVIDENCE ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
AS MODIFIED
KANDIS A. WESTMORE, United States Magistrate Judge
Upon review of Defendants' formal objections, and Plaintiff's response, the Court rules as follows:
| Evidence | Basis for Objection | Ruling |
| 1. ECF No. 90-1 (Yojana Paiz's 4/19/90 statement to the inspectors) | F.R.E. 401 (relevance - information not known to inspectors at time Plaintiff was charged) | OVERRULED |
| 2. ECF No. 90-2 (Marina Flores' 4/19/90 statement to the inspectors) | F.R.E. 401 (relevance - information not known to inspectors at time Plaintiff was charged) | OVERRULED |
| 3. ECF No. 89-28 (Yojana Paiz's 2024 deposition) | F.R.E. 401 (relevance - information not known to inspectors at time Plaintiff was charged) | OVERRULED |
| 4. ECF No. 89-22 (Kathleen Guevara's 4/26/1990 statement to the inspectors) | F.R.E. 401 (relevance - information not known to inspectors at time Plaintiff was charged) | OVERRULED |
| 5. ECF No. 89-23 (Kenneth Duff's 5/1/1990 statement to the inspectors) | F.R.E. 401 (relevance - information not known to inspectors at time Plaintiff was charged) | OVERRULED |
| 6. ECF No. 89-24 (1991 trial testimony of Kenneth Duff and Kathleen Guevara) | F.R.E. 401 (relevance - information not known to inspectors at time Plaintiff was charged) | OVERRULED |
| 7. ECF No. 89-2 (Lazaro Reyes's 2024 declaration, ¶¶ 2-7) | F.R.E. 401 (relevance - information not known to inspectors at time Plaintiff was charged) | OVERRULED |
| 8. ECF No. 89-29 (Marina Flores' 2024 deposition) | a. F.R.E. 401 (relevance - information not known to inspectors at time Plaintiff was charged) b. F.R.E. 901 (authenticity - uncertified rough transcript) | OVERRULED on the grounds that Plaintiff corrected this exhibit. |
| 9. ECF No. 90-21 (transcript of 1/23/1991 defense counsel interview of Roberto Hernandez) | a. F.R.E. 401 (relevance - information not known to inspectors at time Plaintiff was charged) b. F.R.E. 801 (hearsay) | SUSTAINED |
| 10. ECF No. 90-15 (Roberto Socorro's 2020 declaration) | a. F.R.E. 401 (relevance - information not known to inspectors at time Plaintiff was charged) b. F.R.E. 801 (hearsay - declaration was executed in Cuba but not under penalty of perjury under “the laws of the United States of America” as required by 28 U.S.C. § 1746(1)) | SUSTAINED |
| 11. ECF No. 89-1 (Elyzobeida Vecino's 2024 declaration) | a. F.R.C.P. 37(c)(1) (witness was never disclosed per Rule 26), as to entire declaration b. F.R.E. 401 (relevance - information not known to inspectors at time Plaintiff was charged), as to ¶¶ 2-4, 6, 8-10 c. F.R.E. 801 & F.R.E. 602 (hearsay and lack of personal knowledge), as to ¶¶ 6, 8-10 | SUSTAINED |
| 12. ECF No. 90-24 (Randy Montesano's 2020 declaration) | a. F.R.E. 401 (relevance - information not known to inspectors at time Plaintiff was charged) b. F.R.E. 602 (lack of personal knowledge), as to whether George Varela was a drug addict in April 1990 | SUSTAINED |
| 13. ECF No. 88-4 (SFDA Innocence Commission Report, 2021) | a. F.R.E. 401 (relevance - information not known to inspectors at time Plaintiff was charged) b. F.R.E. 801 (hearsay) c. F.R.C.P. 56(c)(3); Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (“We rely on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment.”) (quotations and brackets omitted); F.R.E. 403 (fairness, time), as to the remainder of the voluminous report that was not discussed in Plaintiff's Opposition | SUSTAINED |
| 14. ECF No. 89-11 (Dr. Dysart's 2024 expert report) | a. F.R.E. 401 (relevance - information not known to inspectors at time Plaintiff was charged; expert opinions concern reliability of eyewitness identifications at the 1991 trial; opinion based on post-1990 research not known to inspectors) b. F.R.E. 702 (Dr. Dysart lacks expertise in 1990 police practices) c. F.R.C.P. 56(c)(3); Keenan, 91 F.3d at 1279; F.R.E. 403 (fairness, time), as to the remainder of the voluminous report that was not discussed in Plaintiff's Opposition | SUSTAINED |
| 15. ECF No. 90-27 (Kristina Martin's 2024 deposition) | F.R.E. 901 (authenticity - uncertified rough transcript) | OVERRULED on the grounds that Plaintiff corrected this exhibit. |
| 16. ECF No. 89-20 (Pleading filed in Cole v. City of Los Angeles) | SUSTAINED | |
| 17. ECF No. 90-3 (Pleading filed in Cole v. City of Los Angeles) | SUSTAINED |
| 18. ECF No. 90-13 (Denise Corretjer's 2020 declaration) | a. F.R.E. 801 (hearsay), F.R.E. 804(b)(3) does not apply because Plaintiff has not established George Varela's unavailability b. Even if George Varela were unavailable, any non-self-inculpatory statements from Varela about the inspectors or any reasons for lying, are not admissible under F.R.E. 804(b)(3) | OVERRULED |
| 19. ECF No. 90-14 (Caridad Gonzales' 2020 declaration) | a. F.R.E. 801 (hearsay); F.R.E. 804(b)(3) does not apply because Plaintiff has not established George Varela's unavailability b. Even if George Varela were unavailable, any non-self-inculpatory statements from Varela about the inspectors or any reasons for lying, are not admissible under F.R.E. 804(b)(3) | OVERRULED |
| 20. ECF No. 89-8 (Dr. Leo's 2024 expert report) | a. F.R.E. 702 (expert opinion - unreliable) b. F.R.E. 702; U.S. v. Tamman, 782 F.3d 543, 552 (9th Cir. 2015) (expert opinion - not permitted on legal issues, state of mind, or to characterize evidence) c. F.R.C.P. 56(c)(3); Keenan, 91 F.3d at 1279; F.R.E. 403 (fairness, time), as to the remainder of the voluminous report that was not discussed in Plaintiff's Opposition | SUSTAINED |
| 21. ECF No. 89-9 (Dr. Leo's 2024 rebuttal expert report) | a. F.R.E. 702 (expert opinion - unreliable) b. F.R.E. 702 (expert opinion - not permitted on legal issues, state of mind, or to characterize evidence) c. F.R.C.P. 56(c)(3); Keenan, 91 F.3d at 1279; F.R.E. 403 (fairness, time); the Opposition does not discuss any of this voluminous rebuttal report d. F.R.C.P. 26(a)(2)(D)(ii); Truckstop.Net, L.L.C. v. Sprint Commc'ns Co., 537 F.Supp.2d 1126, 1133 (D. Idaho 2008) (rebuttal report should be excluded where moving party did not rely on expert being rebutted) | SUSTAINED |
| 22. ECF No. 90-29 (Manuel “Manolo” Alvarez's 2014 declaration) | FRE 801 (hearsay - witness is deceased and cannot testify at trial) | SUSTAINED |
| 23. ECF No. 90-28 (Eucebio Maceo's 2004 declaration) | a. F.R.C.P. 37(c)(1) (witness was never disclosed per Rule 26) b. F.R.E. 401 (relevance - witness never spoke with police or heard any of their questions) c. F.R.E. 801 (hearsay), as to ¶ 9 | SUSTAINED |
| 24. ECF No. 89-5 (Adam Bercovici's 2024 expert report) | a. F.R.E. 702(b) (expert opinion regarding inspectors' duty to disclose exculpatory evidence has no factual basis, because Alvarez's declaration, ECF No. 90-29, is inadmissible) b. F.R.E. 702 (expert opinion - not permitted on legal issues) c. F.R.C.P. 56(c)(3); Keenan, 91 F.3d at 1279; F.R.E. 403 (fairness, time), as to the remainder of the voluminous report that was not discussed in Plaintiff's Opposition | SUSTAINED |
| 25. ECF No. 89-6 (Adam Bercovici's 2024 rebuttal expert report) | a. F.R.E. 702(b) (expert opinion regarding inspectors' duty to disclose exculpatory evidence has no factual basis, because Alvarez's declaration, ECF No. 90-29, is inadmissible) b. F.R.E. 702 (expert opinion - not permitted on legal issues) c. F.R.C.P. 56(c)(3); Keenan, 91 F.3d at 1279; F.R.E. 403 (fairness, time); the Opposition does not discuss any of this voluminous rebuttal report d. F.R.C.P. 26(a)(2)(D)(ii); Truckstop.Net, L.L.C., 537 F.Supp.2d at 1133 (rebuttal report should be excluded where moving party did not rely on expert being rebutted) | SUSTAINED |
IT IS SO ORDERED.