Case Number: BC426353??? Hearing Date: July 18, 2016??? Dept: 56
Case Name: Alexander et al. v. Community Hospital et al.
Case No.: BC426353
Motions: Tentative rulings on motions in limine for trial
Plaintiff?s motions in limine:
1. Granted in part. Plaintiffs move to exclude evidence concerning the arrest of and a restraining order issued against Plaintiff Alexander, arising from her participation in service of process upon Shanae Berry. Defendants claim that Alexander?s arrest is relevant to her claim of defamation and their defense of truth. Evidence of the fact of Alexander?s arrest is relevant and may be admitted, but the circumstances and details of the arrest, confrontation with Berry, and restraining order will be excluded; they are not relevant and their probative value is outweighed by undue time and prejudice.
2. (Missing)
3. Denied. Plaintiffs move to exclude evidence concerning mitigation of damages. This has been pled as an affirmative defense and it may be asserted and proved at trial.
4. Denied. Plaintiffs move to exclude evidence concerning the sale of Community Hospital to a new entity, and the effect of the transaction on employees. This evidence is relevant to the status of employment at the hospital and to the calculation of damages (see Hospital MIL #12).
5. Denied. Plaintiffs move for approval to use a written questionnaire in jury selection. No questionnaire has been submitted.
6. Denied. Plaintiffs move to exclude evidence concerning affirmative defenses not pled in the answer. The motion does not specify any evidence or defense and is therefore premature and abstract. Specific objections should be made at trial.
7. Denied. Plaintiffs move to exclude evidence concerning Defendants? claim that Plaintiffs were terminated for improper use of restraints upon a patient. The evidence is proper because it relates to a substantive claim by Defendants. Plaintiffs base their argument on inconsistent evidence, but this is a matter for impeachment at trial.
8. Argue. Plaintiffs move to exclude an April 2009 report concerning events associated with Plaintiffs? termination. Plaintiffs contend the report is inadmissible hearsay, and Defendants contend it summarizes the investigation which formed the basis for their decision to terminate Plaintiffs. In a discrimination case the defendant is entitled to introduce evidence of its reasons for terminating the plaintiff. For example, in Silva v. Lucky Stores (1998) 65 Cal.App.4th 256, the Court of Appeal held that statements and reports received during the investigation of sexual harassment claims were admissible for the non-hearsay purpose of showing the reasonableness of the employer?s actions: ?Where the reasonableness of a person’s conduct is at issue, statements of others on which he acted are admissible.? 65 Cal.App.4th at 265. But Defendants must establish the foundation for the report and the information contained in it. Defendants should make an offer of proof as to how the report will be presented and used at trial.
9. Denied. Plaintiffs move to exclude a recording of telephone messages that Plaintiff Hellmannsberger left for Shenae Berry. Plaintiffs contend the evidence is inadmissible hearsay, but it is not. It is admissible as a statement of a party opponent. See EC ?1220. It appears that Hellmannsberger authenticated the recording at his deposition.
10. Argue. Plaintiffs move to exclude all testimony by Dept. of Justice witnesses, and all criminal investigation files and criminal complaints. Defendants should make an offer of proof. There are appropriate purposes for some of the evidence, but it is not clear how this evidence will be used.
Community Hospital?s motions in limine:
1. Granted in part. Defendant moves to bifurcate the trial. The motion is denied for liability and damages, but it is granted for punitive damages pursuant to CC ?3295(d).
2. Denied. Defendant moves to exclude evidence not disclosed during discovery. The motion does not specify any evidence and is therefore premature and abstract. In general, the parties will not be permitted to use undisclosed evidence without justification.
3. Denied. Defendant moves to preclude counsel from preconditioning the jury during voir dire. The motion is abstract. Specific objections may be made at trial.
4. Denied. Defendant moves to exclude expert testimony by lay witnesses. The motion does not specify any evidence and is therefore premature and abstract. Specific objections may be made at trial.
5. Denied. Defendant moves to exclude the use of deposition testimony for any witness who does not appear at trial. The motion is so general it is meaningless. There are Evidence Code exceptions for use of depositions, which may be applicable.
6. Granted in part. Defendant moves to exclude lay witness testimony about Plaintiffs? emotional distress. Witnesses may not give medical or psychiatric opinions, but they may testify about personal knowledge of behavior, conduct and statements. Specific objections may be made at trial.
7. Granted in part. Defendant moves to exclude evidence concerning Kohl?s acts of discrimination and harassment directed at employees other than Plaintiffs. Plaintiffs argue that they should be given broad latitude to prove Kohl?s conduct toward others, as it is relevant to his intent and Defendants? knowledge and failure to take corrective action. The Court will limit this evidence to Kohl?s conduct directed at Plaintiffs or directed at others but witnessed by Plaintiffs. Kohl?s actions toward others that were not witnessed by Plaintiffs have no bearing on Plaintiffs? own conditions of employment. The probative value of such evidence is greatly outweighed by undue time and prejudice; the parties? briefs on this motion and MCA/MPHS MIL #1 indicate that trial could easily become sidetracked by extensive evidence about incidents concerning others. It will therefore be excluded. See McCoy v. Pacific Maritime (2009) 216 Cal.App.4th 283, 296; Johnson v. United Cerebral (2009) 173 Cal.App.4th 740, 763-67. If Plaintiffs seek to introduce evidence of any conduct directed at other employees and which was not witnessed by Plaintiffs, a specific offer of proof must be made in advance.
8. Granted. Defendant moves to exclude evidence concerning Plaintiffs? acquittal of criminal charges relating to use of restraints upon a patient. Plaintiffs state that this evidence is ?directly relevant? but it is not. It is well settled that ?a judgment of acquittal in a criminal case is not competent evidence in a subsequent civil action to prove the innocence of the accused.? Gibson v. Gibson (1971) 15 Cal.App.3d 943, 947-948; accord Beckner v. Sears, Roebuck (1970) 4 Cal.App.3d 504, 509 (?A judgment of acquittal does not establish that the acts constituting the offense charged were not committed by the defendant.?).
9. Granted in part. Defendant moves to exclude evidence concerning Shenae Berry?s use of marijuana. There shall be no evidence of any general use of marijuana; this is not relevant. Evidence shall be limited to Berry?s use or intoxication at the time of any events that she testifies about; this may have affected her perception and recall.
10. Granted in part. Defendant moves to exclude evidence concerning the award of unemployment insurance benefits to Plaintiff Lisa Harris and testimony during Harris? unemployment hearing. There shall be no evidence of the unemployment hearing order or findings, as they are inadmissible under UI ?1960. There shall be no evidence of any unemployment benefits paid to Harris, because unemployment benefits are not admissible as mitigation of damages. E.g. Billetter v. Posell (1949) 94 Cal.App.2nd 858, 860; Monroe v. Oakland USD (1981) 114 Cal.App.3d 804, 810-11; Mize-Kurman v. Marin Comm. Coll. Dist. (2012) 202 Cal.App.4th 832, 876. Testimony from the unemployment insurance hearing may be used at trial, if it complies with the applicable hearsay exceptions.
11. Denied. Defendant moves to exclude evidence concerning Plaintiffs? defamation claim. The motion seeks exclusion of ?all? evidence and cites examples of testimony which may be objectionable. Specific objections may be made at trial.
12. Denied. Defendant moves to exclude evidence concerning Plaintiffs? damages after their employment ended at College Hospital and after Community Hospital changed ownership and terminated its employees. These are matters of proof for trial.
MCA and MPHS motions in limine:
1. Granted in part. See ruling on Hospital MIL#7.
2. Granted. Defendants move to preclude Plaintiffs from showing or reading from the complaint. The pleadings are not evidence. None of the parties may use the complaint or any other pleading as evidence.
3. Granted. Defendants move to exclude evidence concerning other lawsuits filed against any Defendant. Other lawsuits are not relevant and the probative value of such evidence is outweighed by undue time and prejudice.
4. Granted. Defendants move to exclude evidence or argument that they caused Plaintiffs to be arrested and prosecuted for improperly restraining a patient. Plaintiffs have not alleged malicious prosecution, so this evidence is not relevant. That is because as a matter of law, a criminal prosecution ?is the sole responsibility of the public prosecutor.? Dix v. Superior Ct. (1991) 53 Cal.3d 442, 451. Plaintiffs have argued that Defendants should be held accountable for falsely reporting their conduct to law enforcement authorities, but their reports were absolutely privileged under CC ?47(b). See Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 364 (?when a citizen contacts law enforcement personnel to report suspected criminal activity and to instigate law enforcement personnel to respond, the communication also enjoys an unqualified privilege under section 47(b)?). And this absolute privilege applies to all tort claims except malicious prosecution. Hagberg, supra 32 Cal.4th at 361 (?the only tort claim we have identified as falling outside the privilege established by section 47(b) is malicious prosecution?); accord Silberg v. Anderson (1990) 50 Cal.3d 205, 216.
5. Denied. Defendant moves to exclude evidence concerning any claim for emotional distress caused by this action. The motion does not specify any evidence and is therefore premature and abstract. Specific objections may be made at trial.
6. Argue. Defendant moves to exclude witnesses not disclosed in discovery. The motion is directed to an old witness list, and it is not clear whether this is still a disputed issue.
7. Granted. Defendant moves to exclude evidence of emotional distress suffered by Plaintiff Lisa Harris. Ms. Harris is deceased, and her estate cannot recover damages for emotional distress. See CCP ?377.34; County of LA v. Superior Ct. (1999) 21 Cal.4th 292. Evidence of emotional distress by Ms. Harris is irrelevant.
8. Denied. Defendant moves to bifurcate the issue of joint employer liability. This issue is intertwined with liability, and there will be no simplification or substantial savings.