Opinion
1:15-cv-00683 JAM-SKO
06-14-2021
DESIREE MARTINEZ, Plaintiff, v. KYLE PENNINGTON; KIM PENNINGTON; CONNIE PENNINGTON; KRISTINA HERSHBERGER; JESUS HERSHBERGER; CHANNON HIGH; THE CITY OF CLOVIS; ANGELA YAMBUPAH; RALPH SALAZAR; FRED SANDERS; THE CITY OF SANGER; DOES 1 THROUGH 20, Defendants.
PRETRIAL CONFERENCE ORDER
HONORABLE JOHN A. MENDEZ UNITED STATES DISTRICT COURT JUDGE.
Pursuant to court order, a Pretrial Conference was held via video on June 11, 2021 before Judge John Mendez. Kevin G. Little appeared as counsel for plaintiff; Daniel S. Cha appeared as counsel for defendant Channan High; John W. Phillips appeared as counsel for defendants Kim and Connie Pennington and Kyle Pennington appeared in his capacity as a pro se defendant. After hearing, the Court makes the following findings and orders:
I. JURISDICTION/VENUE
Jurisdiction is predicated upon 28 U.S.C. §§ 1331 and 1343, and has previously been found to be proper by order of this court, as has venue. Those orders are confirmed.
II. JURY/NON-JURY
The parties have demanded a jury trial.
III. STATEMENT TO BE READ TO JURY
No later than July 19, 2021 the parties shall E-file a joint statement of the case that may be read to the jury at the beginning of jury selection.
IV. UNDISPUTED FACTS
The facts pertaining to jurisdiction and venue are undisputed. All other facts are disputed.
V. DISPUTED FACTUAL ISSUES
A. Plaintiff's Disputed Factual Issues:
1. Whether plaintiff was denied her federal substantive due process rights by the actions of defendant Channan High.
2. Whether plaintiff was denied her state law rights under California Civil Code §§ 51.7, 52.4, 1708.5, 1708.6, 1714, 3520 and common law by the actions of defendant Kyle Pennington.
3. Whether plaintiff sustained damages as a result of misconduct committed by the defendants.
4. What are plaintiff's damages as a result of the defendants' conduct.
5. Whether the defendants' acts were wanton and willful so as to justify the imposition of punitive damages.
6. Whether the plaintiff is entitled to ancillary relief, including statutory attorney's fees, an award of costs, prejudgment interest, and related relief, if she prevails.
B. Defendant Channan High's Disputed Factual Issues:
1. Whether Channan High acted under color of law.
2. If Channan High acted under color of law, whether Channan High is entitled to qualified immunity.
a. Whether Channan High violated Plaintiff's Fourteenth Amendment right to substantive due process, including the following related essential facts:
(i) The purported telephone communications between Channan High and Kyle Pennington during the period of alleged abuse.
(ii) Whether and how Channan High had knowledge of Plaintiff's confidential report(s) accusing Kyle Pennington of abusing Plaintiff.
(iii) Whether Channan High disclosed to Kyle Pennington that Plaintiff had made confidential report(s) accusing him of abusing Plaintiff during any communications High had with Kyle Pennington.
b. Whether the law was so clearly established that no reasonable officer in Channan High's position could have believed that her conduct did not violate Plaintiff's Fourteenth Amendment right to substantive due process.
3. If Channan High is liable, the damages reasonably attributable to her violation of Plaintiff's Fourteenth Amendment right to substantive due process.
4. Whether, and if so, the amount of, punitive damages are available against Channan High.
C. Defendants Kim and Connie Pennington's Disputed Factual Issues:
1. The Pennington's dispute each factual allegation made against them by plaintiff and assert that they did their best to assist and advise plaintiff even if the face of plaintiff's own bad decision making.
VI. DISPUTED EVIDENTIARY ISSUES
A. Plaintiff's Disputed Evidentiary Issues:
1. The plaintiff will seek to exclude any evidence not disclosed in a timely manner before trial.
2. The plaintiff will oppose any attempt by the defense to introduce inadmissible character evidence under Federal Rule of Evidence 404 and Federal Rule of Evidence 403.
3. The plaintiff will move to exclude any evidence or other reference to claims that have been dismissed before trial.
4. The plaintiff will move to preclude any prejudicial collateral impeachment and prohibit the use of any extrinsic evidence to corroborate such a collateral matter.
B. Defendant Channan High's Disputed Evidentiary Issues:
1. Channan High will seek to exclude Plaintiff from introducing any evidence that was not timely disclosed, pursuant to Federal Rule of Civil Procedure 37.
2. Channan High will seek to exclude Plaintiff from introducing any evidence or reference to claims or other defendants who have been dismissed before trial.
3. Channan High will seek to exclude Plaintiff from introducing any evidence or reference to Channan High's potential indemnification for damages.
4. Channan High will seek to exclude Plaintiff from calling retained experts Scott DeFoe and David Cropp under Federal Rule of Evidence 702 as unhelpful to the trier of fact.
VII. RELIEF SOUGHT
The plaintiff is requesting an award of compensatory and punitive damages. Plaintiff is also requesting an award of fees to the extent permitted by 42 U.S.C. § 1988, cost of suit, prejudgment interest, and any other relief to which she may be entitled.
VIII. POINTS OF LAW
Trial briefs may be E-filed with the court no later than July 19, 2021. Any points of law not previously argued to the Court should be briefed in the trial briefs.
IX. ABANDONED ISSUES
None, except as to those claims and parties dismissed by the Court.
X. WITNESSES
The parties anticipate calling the following witnesses:
1. Plaintiff Desiree Martinez
2. Defendant Kyle Pennington
3. Connie Pennington
4. Kim Pennington
5. Clovis Police Officer Kristina Hershberger
6. Clovis Police Officer Jesus Santillan
7. Defendant Clovis Police Officer Channan High
8. Sanger Police Officer Angela Yambupah
9. Sanger Police Officer Ralph Salazar
10. Destiny Jamerson
11. Kari Irby
12. Donna Humphrey
13. Erica Pennington
14. Max Sharits
15. Dustin Jacobson
16. Jared Clark
17. Michael Gilleland
18. Augustine Silva
19. Christian Ramos
20. Norma Rae Brice
21. Shawn Marin
22. Felicia Martinez
23. Clovis Police Dispatcher Shanice McCoy
24. Clovis Police Officer Gary Taylor
25. Clovis Police Det. Iri Guerra
26. Clovis Police Sgt. Jorge Gomez
27. Clovis Police Sgt. James Boldt
28. Clovis Police Cpl. J. Munro
29. Clovis Police Capt. Tom Roberts
30. Sanger Police Cpl. Brandon Coles
31. Sanger Police Det. Ramiro Garza
32. Sanger Police Det. Jeffrey Bise
33. Fresno County Sheriff's Deputy Michael Sill
34. Fresno County Deputy District Attorney Kelly Smith
35. Jeff Hammerschmidt, Esq. - only as to non-privileged matters that occurred during court proceedings 36. E. Marshall Hodgkins, III, Esq.
37. Dr. Saul Mendelsohn, (non-retained expert)
38. Junko Kumagai (non-retained expert)
39. Vera S. Marez (non-retained expert)
40. Katie Quinn-Crask (non-retained expert)
41. Valerie Harris Reamer (non-retained expert)
42. Jan Osborn (non-retained expert)
43. Scott Defoe (retained expert)
44. David Cropp (retained expert)
45. Custodians of records for any records whose authenticity is not stipulated by the parties or who otherwise may be necessary to provide other testimony regarding records.
Each party may call a witness designated by the other.
A. No other witnesses will be permitted to testify unless:
(1) The party offering the witness demonstrates that the witness is for the purpose of rebutting evidence which could not be reasonably anticipated at the Pretrial Conference, or
(2) The witness was discovered after the Pretrial Conference and the proffering party makes the showing required in "B" below.
B. Upon the post-Pretrial discovery of witnesses, the attorney shall promptly inform the court and opposing parties of the existence of the unlisted witnesses so that the court may consider at trial whether the witnesses shall be permitted to testify. The evidence will not be permitted unless:
(1) The witnesses could not reasonably have been discovered prior to Pretrial;
(2) The court and opposing counsel were promptly notified upon discovery of the witnesses;
(3) If time permitted, counsel proffered the witnesses for deposition; and
(4) If time did not permit, a reasonable summary of the witnesses' testimony was provided opposing counsel.
XI. EXHIBITS, SCHEDULES AND SUMMARIES
Plaintiff intends to introduce the following exhibits:
1. Cellular telephone records from Sprint, ATT Mobility and T-Mobile. [Overbroad and not specific enough.]
2. The complete dockets of the criminal and family law court proceedings involving plaintiff and defendant Pennington in the Fresno Superior Court. [Overbroad and not specific enough.]
3. The complete files of the criminal and family law court proceedings involving plaintiff and defendant Pennington in the Fresno Superior Court. [Overbroad and not specific enough.]
4. Recordings of 911 calls. [Overbroad and not specific enough.]
5. Recordings of dispatch communications. [Overbroad and not specific enough.]
6. Recordings of witness interviews. [Overbroad and not specific enough.]
7. Plaintiff's audio recordings of defendant Pennington. [Overbroad and not specific enough.]
8. Clovis Police Department reports and related documents pertaining to incidents involving plaintiff and defendant Pennington. [Overbroad and not specific enough.]
9. Sanger Police Department reports and related documents pertaining to incidents involving plaintiff and defendant Pennington. [Overbroad and not specific enough.]
10. Fresno County Sheriff reports and related documents pertaining to incidents involving plaintiff and defendant Pennington. [Overbroad and not specific enough.]
11. Defendant Pennington's IA file from Clovis PD. [Overbroad and not specific enough.]
12. Defendant Pennington's personnel file from Clovis PD. [Overbroad and not specific enough.]
13. Excerpts of Clovis PD policy manual in effect in 2013. [Identify specific excerpts.]
14. American Ambulance records (treatment and billing).
15. Sanger Fire Dept. Ambulance records (treatment and billing).
16. Records (treatment and billing) from the Lighthouse Counseling Center.
17. Records (treatment and billing) from Sutter Health, Sacramento. [Overbroad and not specific enough.]
18. Records from Dr. Mendelsohn's office. [Overbroad and not specific enough.]
19. Photos of plaintiff related to domestic violence incidents. [Overbroad and not specific enough. Number of photos and dates photos were taken are needed.]
20. Photos of defendant Pennington related to domestic violence incidents. [Overbroad and not specific enough.]
21. Photos of domestic violence incident scenes. [Overbroad and not specific enough.]
22. Screenshots from plaintiff's cellular phone. [Overbroad and not specific enough.]
23. Screenshots from Facebook accounts related to plaintiff or defendant Pennington. [Overbroad and not specific enough.]
24. Screenshots of phone records. [Overbroad and not specific enough.]
25. Photos of injured enemy soldiers shown to plaintiff by defendant Pennington. [Need more specificity.]
26. Video of Kyle Pennington's interrogation by law enforcement Sept. 2013.
27. Plaintiff's 2014 victim impact statement.
28. Destiny Jamerson's 2014 victim impact statement.
29. Files extracted from defendant Pennington's computer. [Overbroad and not specific enough.]
30. Files extracted from defendant Pennington's mobile devices. [Overbroad and not specific enough.]
31. Media coverage related to defendant Pennington's arrest and prosecution. [Overbroad, not specific and hearsay issues.]
32. Marsy's Law brochure.
33. Deposition of defendant Pennington, including exhibits.
34. Deposition of defendant High, including exhibits.
35. Complete files of plaintiff's experts provided in discovery. [Can be marked but not admitted.]
36. Complete files of defendants' experts provided in discovery. [Can be marked but not admitted.]
37. Demonstrative aids prepared for trial. [Need more specificity.]
38. As trial exhibits, the Penningtons will rely on deposition transcripts, exhibits thereto and any exhibits offered by other parties.
*As indicated by the Court's notes above, the description of exhibits is inadequate. The parties must provide more detail and description as to each proposed exhibit. For example, dates, number of photographs, and a description of what is depicted in the photographs should be included in each exhibit that is identified.
Each party may use an exhibit designated by the other.
A. No other exhibits will be permitted to be introduced unless:
(1) The party proffering the exhibit demonstrates that the exhibit is for the purpose of rebutting evidence which could not be reasonably anticipated at the Pretrial Conference, or
(2) The exhibit was discovered after the Pretrial Conference and the proffering party makes the showing required in paragraph "B," below.
B. Upon the post-Pretrial discovery of exhibits, the attorneys shall promptly inform the court and opposing counsel of the existence of such exhibits so that the court may consider at trial their admissibility. The exhibits will not be received unless the proffering party demonstrates:
(1) The exhibits could not reasonably have been discovered prior to Pretrial;
(2) The court and counsel were promptly informed of their existence;
(3) Counsel forwarded a copy of the exhibit(s) (if physically possible) to opposing counsel. If the exhibit(s) may not be copied, the proffering counsel must show that he has made the exhibit(s) reasonably available for inspection by opposing counsel.
As to each exhibit, each party is ordered to exchange copies of the exhibit not later than fourteen (14) days before trial. Each party is then granted five (5) days to file and serve objections to any of the exhibits. In making the objection, the party is to set forth the grounds for the objection. The parties shall pre-mark their respective exhibits in accord with the Court's Pretrial Order. Exhibit stickers may be obtained through the Clerk's Office. An original and one (1) copy of the exhibits shall be presented to Gabriel Michel, Deputy Courtroom Clerk, at 8:30 a.m. on the date set for trial or at such earlier time as may be agreed upon. Mr. Michel can be contacted at (916) 930-4091 or via e-mail at gmichel@caed.uscourts.gov: As to each exhibit which is not objected to, it shall be marked and may be received into evidence on motion and will require no further foundation. Each exhibit which is objected to will be marked for identification only.
XII. DISCOVERY DOCUMENTS
Plaintiff intends to introduce certain of the defendant's responses to his requests for admissions, interrogatories, document requests, declarations, and depositions as admissions of a party-opponent. Defendant Channan High intends to introduce certain of Plaintiff's responses to requests for admission, interrogatories, document requests, declarations, and deposition as admissions of a party-opponent. Plaintiff and Defendant Channan High also intend to use the depositions taken in this action for all purposes allowed under the Federal Rules of Civil Procedure and Evidence.
XIII. FURTHER DISCOVERY OR MOTIONS
Pursuant to the court's Status Conference Order, all discovery and law and motion was to have been conducted so as to be completed as of the date of the Pretrial Conference. That order is confirmed. The parties are free to do anything they desire pursuant to informal agreement. However, any such agreement will not be enforceable in this court.
XIV. STIPULATIONS
The parties propose that a stipulation to the authenticity of documentary evidence exchanged during discovery will further the efficient resolution of this action. Any such stipulation must be in writing and signed by counsel.
XV. AMENDMENTS/DISMISSALS
All defendants other than Officer High, Kyle Pennington, and Kim and Connie Pennington have been dismissed.
XVI. FURTHER TRIAL PREPARATION
A. Counsel are directed to Local Rule 285 regarding the contents of trial briefs. Such briefs may be E-filed on or before July 19, 2021.
B. Counsel are further directed to confer and to attempt to agree upon a joint set of jury instructions. The joint set of instructions shall be lodged via ECF with the court clerk on or before July 19, 2021 and shall be identified as the "Jury Instructions Without Objection." As to instructions as to which there is dispute the parties shall submit the instruction(s) via ECF as its package of proposed jury instructions also on or before July 23, 2021. This package of proposed instructions should not include the “Jury Instructions Without Objection” and should be clearly identified as “Disputed Jury Instructions” on the proposed instructions.
The parties shall e-mail a set of all proposed jury instructions in word format to the Court's Judicial Assistant, Jane Klingelhoets, at: jklingelhoets@caed.uscourts.gov.
C. It is the duty of counsel to ensure that a hard copy of any deposition which is to be used at trial has been lodged with the Clerk of the Court pursuant to Local Rule 133(j). The depositions shall be lodged with the court clerk no later than July 19, 2021. Counsel are cautioned that a failure to discharge this duty may result in the court precluding use of the deposition or imposition of such other sanctions as the court deems appropriate.
D. The parties are ordered to E-file with the court and exchange between themselves no later than July 19, 2021, a statement designating portions of depositions intended to be offered or read into evidence (except for portions to be used only for impeachment or rebuttal).
E. The parties are ordered to E-file with the court and exchange between themselves no later than July 19, 2021, the portions of Answers to Interrogatories and/or Requests for Admission which the respective parties intend to offer or read into evidence at the trial (except portions to be used only for impeachment or rebuttal).
F. Each party may submit proposed voir dire questions the party would like the court to put to prospective jurors during jury selection. Proposed voir dire should be submitted via ECF no later than July 19, 2021.
G. Each party may submit a proposed verdict form that the party would like the Court to use in this case. Proposed verdict forms should be submitted via ECF no later than July 19, 2021.
H. In limine motions shall be E-filed separately on or before July 16, 2021. Opposition briefs shall be E-filed on or before July 21, 2021. No. reply briefs may be filed.
XVII. SETTLEMENT NEGOTIATIONS
No further formal Settlement Conference will be set in this case at this time.
XVIII. AGREED STATEMENTS
See paragraph III, supra.
XIX. SEPARATE TRIAL OF ISSUES
None. The issue of punitive damages will NOT be bifurcated.
XX. IMPARTIAL EXPERTS/LIMITATION OF EXPERTS
None.
XXI. ATTORNEYS' FEES
The matter of the award of attorneys' fees to prevailing parties pursuant to statute will be handled by motion in accordance with Local Rule 293.
XXII. MISCELLANEOUS
The Court will increase the number of peremptory challenges for the parties. Plaintiff shall have 4 peremptory challenges. Defendants shall have 6 peremptory challenges which may be shared or divided evenly (two each).
XXIII. ESTIMATE OF TRIAL TIME/TRIAL DATE
The parties estimate six (6) to ten (10) court days for trial. Trial will commence on or about July 26, 2021, at 9:15 a.m.
Counsel are to call Gabriel Michel, Deputy Courtroom Clerk, at (916) 930-4091, one week prior to trial to ascertain the status of the trial date.
XXIV. OBJECTIONS TO PRETRIAL ORDER
Each party is granted seven (7) days from the date of this Pretrial Order to object or respond to it via ECF.
IT IS SO ORDERED.