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UNITED 

STATES 

DISTRICT 

COURT

For the Northern District of California

UNITED STATES DISTRICT COURT

Northern District of California

REMI TAN,

Plaintiff,

v.

CITY & COUNTY OF SAN FRANCISCO, et

al.,

Defendants.

_____________________________________/

No. C 08-01564 MEJ

ORDER RE DEFENDANTS’ MOTION

TO EXCLUDE MONELL CLAIM OR

ALTERNATIVELY TO BIFURCATE

TRIAL (DKT. #62)

ORDER RE MOTIONS IN LIMINE

(Dkt. ##66, 68) 

Pending before the Court are: (1) Defendants City and County of San Francisco, Sergeant

Bobby C. Cheung, and Officer Eddie Wu’s (collectively, “Defendants”) Motions in Limine Nos. 1-5

(Dkt. #66); (2) Defendants’ Motion to Exclude or Bifurcate Plaintiff’s Monell claim (Dkt. #62); and

(3) Plaintiff Remi Tan’s (“Plaintiff”) Motions in Limine 1-9 (Dkt. #68). Plaintiff has filed an

Opposition to Defendants’ Motions in Limine, (Dkt. #69), and Defendants have filed an Opposition

to Plaintiff’s Motions in Limine (Dkt. #71). On February 4, 2010, the Court held a pretrial

conference in this matter. After consideration of the parties’ papers, relevant legal authority, oral

argument, and good cause appearing, the Court now ORDERS as follows. 

A. Defendants’ Motion to Bifurcate Trial (Dkt. #62)

Pursuant to Federal Rule of Civil Procedure 42(b), Defendants request that the Court exclude

or, in the alternative, bifurcate Plaintiff’s Monell claim against the City and County of San

Francisco. (Def.’s Mot. 2:4-6.) Plaintiff did not file any opposition to Defendants’ motion and at

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the February 4, 2010 hearing, he stated that he did not oppose the motion to bifurcate. Accordingly,

the Court GRANTS Defendants’ request to bifurcate Plaintiffs’ Monell claim. If necessary, the

Court shall try such claims after disposition of Plaintiffs’ claims against the individual defendant

officers. 

B. Defendants’ Motions in Limine (Dkt. #66)

1. Motion in Limine No. 1

Defendants request that the Court exclude evidence, documents, and witnesses not disclosed

in discovery. (Def.’s Mot. 2:1.) This request is predicated on Plaintiff’s indication that he intends to

introduce evidence of prior complaints against the two officers that he obtained informally. Id. at

2:2-4. Defendants argue that they have not seen these unidentified complaints, and that Plaintiff did

not identify them in discovery responses, initial disclosures, or his exhibit list. Id. at 2:6-9.

Defendants argue that Plaintiff’s failure was neither justified nor harmless because they objected on

privilege and privacy grounds to Plaintiff’s document request seeking personnel files, and Plaintiff

failed to seek a court order compelling their production. Id. at 2:17-22. Defendants further argue

that Plaintiff attempted to question the individual Defendants at their depositions about any prior

complaints made against them, but they were instructed not to answer, and Plaintiff again failed to

seek a court order compelling their responses. Id. at 2:22-24. Defendants argue that Plaintiff’s own

failure to participate in the discovery process does not entitle him to ambush them with unidentified

evidence at trial. Id. at 2:25-3:1. 

In response, Plaintiff argues that he was either “forced to engage in a futile a [sic] discovery

meet-and-confer process that characterizes so many cases against the San Francisco Police

Department or to take another approach.” (Pl.’s Opp’n 2:13-13.) Plaintiff explains that he opted to

begin informal discovery from third party sources after the close of discovery, but he does not

provide any specifics regarding this information. Id. at 2:15-17. At the pretrial conference,

Plaintiff’s counsel stated that he would only use the disputed information for purposes of

impeachment. 

Having considered the parties’ arguments, the Court finds that Defendants have failed to

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show that Plaintiff is barred from using evidence obtained outside of discovery. As Plaintiff states

that he obtained the information after the close of discovery, (Pl.’s Opp’n 2:16-18), and he has

disclosed his intention to use it, (Defs.’ Mot. 3:8-11), the Court finds that it cannot be excluded

outright. However, as discussed below, Plaintiff may only use this evidence for purposes of

impeachment, to be determined by the Court on a case-by-case basis. Accordingly, Defendants’

Motion in Limine No. 1 is DENIED.

2. Motion in Limine No. 2

In their Motion in Limine No. 2, Defendants request that the Court exclude evidence and

argument related to complaints, investigations, or allegations of misconduct against Sergeant

Cheung and Officer Wu in other unrelated incidents. (Def.’s Mot. 3:5-7.) This request follows

Plaintiff’s indication the he intends to introduce this evidence to support his Monell claim. Id. at

3:8-10. Defendants argue that evidence of allegations of past misconduct against the Defendant

officers is inadmissible character evidence under Federal Rule of Evidence (“FRE”) 404(b). Id. at

3:17-23. Defendants further argue that evidence of past lawsuits and complaints of misconduct is

inadmissible under FRE 403 because its probative value is outweighed by the prejudice it will cause. 

In response, Plaintiff states that he will only introduce similar incidents involving false arrest

or excessive force “to impeach these two officers, to demonstrate malice or oppression,” and in

cross-examination of defense expert Don Cameron. (Pl’s Opp’n 3:1-7, Dkt. #69.) At the hearing, 

Plaintiff agreed to only use such evidence solely for purposes of impeachment.

FRE 404(b) provides that evidence of prior acts is not admissible to show conduct in

conformity with those acts. “Character evidence is normally not admissible in a civil rights case.” 

Gates v. Rivera, 993 F.2d 697, 700 (9th Cir. 1993). FRE 403 provides that relevant evidence may be

excluded if the danger of unfair prejudice substantially outweighs any probative value. “Permitting

the jury to consider the complaints and accounts of misconduct contained in the personnel files of

[the defendant officers] present[s] a grave danger of unfair prejudice.” Carter v. District of

Columbia, 795 F.2d 116, 131 (D.C. Cir. 1986). The unfair prejudice results from the likelihood that

the jury “would conclude that the evidence established the bad character of the defendants and that

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the defendants were likely to have acted in the same way on the night in question.” Id. 

Accordingly, aving considered the parties’ arguments, the Court GRANTS Defendants’

Motion in Limine No. 2 to exclude evidence and argument related to complaints (including those

made to the Office of Citizens’ Complaints), investigations or allegations of misconduct against

Sergeant Cheung and Officer Wu, except if used solely for purposes of impeachment. 

3. Motion in Limine No. 3

Defendants move to exclude certain testimony by Plaintiff’s witness, Tina Tsang. (Def.’s

Mot. 5:19). Ms. Tsang was a percipient witness, and Defendants believe that Plaintiff will attempt

to elicit an opinion from Ms. Tsang as to whether officers used excessive force against him. Id. at

5:21-22. 

In response, Plaintiff argues that Ms. Tsang is entitled to testify that Plaintiff was not

resisting and that it appeared to her that the two officers caused the situation to escalate by

overreacting. (Pl.’s Opp’n 3:8-9, Dkt. #69). Plaintiff opines that Ms. Tsang should be able to tell

the jury “that she thought the officers were doing a lot more to Remi Tan than he was doing in

return; that is, the officers were using force when the arrestee was not.” Id. at 3:17-18. During the

meet and confer process, Plaintiff apparently agreed not to elicit testimony from Ms. Tsang about

whether the officers used excessive or unreasonable force, but contended that Ms. Tsang could

properly testify about whether the force was greater than necessary. 

The Court has considered the parties’ arguments and finds that Ms. Tsang’s proposed

testimony regarding excessive force constitutes expert witness testimony governed by FRE 702. 

Accordingly, the Court GRANTS Defendants’ Motion as follows: Ms. Tsang may not testify as to

whether force used by Defendants was excessive, unreasonable, or greater than necessary. She may

only discuss what she saw and the situation as she perceived it. 

4. Motion in Limine No. 4

Defendants move to exclude testimony by Dr. Growney, Plaintiff’s treating dentist, regarding

issues on which, when questioned in his deposition, Dr. Growney stated that he had no opinion. 

(Def.’s Mot. 6:1-2). Specifically, Defendants argue that Dr. Growney should be prevented “from

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offering any opinion at trial that Plaintiff suffered a dislocation of his jaw joint or disk as a result of

this incident because he failed to do so at his deposition.” (Def.’s Mot. 6:8-10). Plaintiff does not

oppose the motion. (Pl.’s Opp’n 3:19, Dkt. #69). 

“Expert witnesses are precluded from testifying at trial as to their opinions on subject matters

upon which they did not state opinions . . . at the time their depositions were taken.” In re Melridge,

Inc. Sec. Litig., 1993 U.S. Dist. LEXIS 1144, at *3-4 (D. Or. 1993). Accordingly, the Court

GRANTS Defendants’ Motion to exclude any testimony by Dr. Growney regarding issues upon

which he expressed no opinion at his deposition. 

5. Motion in Limine No. 5

Lastly, Defendants move to exclude Plaintiff’s own OCC complaint (Pl.’s Ex. 8, Dkt. #67)

and his government claim against the City and County of San Francisco (Pl.’s Ex. 9, Dkt. #67). 

(Def.’s Mot. 6:10-11). Defendants argue that both of these documents are hearsay not subject to any

exception. Id. at 6:14-15. 

In response, Plaintiff cryptically argues that these documents are admissible as a

“contemporaneous writing,” and are relevant to Plaintiff’s Monell claim. (Pl.’s Opp’n 3:25-4:2, Dkt.

#69). However, the Court is unaware of any such exception to the hearsay rule, and Plaintiff does

not provide any support for his assertions. Accordingly, the Court GRANTS Defendants’ Motion to

exclude Plaintiff’s Exhibits 8 and 9 as inadmissible hearsay. 

B. Plaintiffs’ Motions in Limine (Dkt. #68)

1. Motion in Limine No.1

Plaintiff moves to exclude all opinions by defense experts which were not in their reports. 

(Pl.’s Mot. 2:6-7). Plaintiff argues that allowing the defense experts to give new or different

opinions at trial would cause unfair surprise and prejudice and would frustrate the purpose of Rule

26(e)(2), which requires that an expert must supplement his or her report by the time the party for

whom they are testifying is required to submit its pretrial disclosures. Id. at 5:15-23. 

Defendant responds that Plaintiff’s motion is a generic statement of the law which makes no

reference to any specific proposed testimony. (Def.’s Opp’n 2:1-4). Defendant argues that it does

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not intend to question its experts as to any opinions not contained in their reports, but submits that

each expert should be entitled to elaborate on the opinions contained in their reports and not be

confined only to the literal words contained therein. Id. at 2:5-8. 

Having considered the parties’ arguments, the Court GRANTS Plaintiff’s Motion to exclude

opinions by defense experts not contained in their reports; however, defense experts may elaborate

on those reports while testifying and are not limited to the words contained in their reports. 

2. Motion in Limine No. 2

Plaintiff next moves to exclude certain opinions of Defendants’ police practices expert, Don

Cameron. (Pl.’s Mot. 3:1-2.) Plaintiff argues that the following opinions expressed in Mr.

Cameron’s report are inadmissible: (1) a peace officer may use reasonable force to effect an arrest;

(2) an officer’s use of force is judged under the objectively reasonable standard; (3) officers are not

required to use the least intrusive degree of force possible; (4) whether officers hypothetically could

have used less painful, less injurious, or more effective force in executing an arrest is simply not an

issue; (5) opinions as to the causation of Plaintiff’s claimed injuries; and (6) opinions as to the

adequacy of the training provided by the San Francisco Police Department (“SFPD”) . Id. at 3:4-7,

4:1-3. The Court shall consider each opinion in turn.

a. Opinions 1-4

As to opinions 1-4, Plaintiff argues that these opinions are legal conclusions and cannot be

given by an expert witness. (Pl.’s Mot. 3:1-4:5.) In response, Defendants agree that Mr. Cameron

should not be permitted to state his opinions on what the law is or the ultimate issues in the case, but

they do intend to question Mr. Cameron about how officers are trained and whether the force used

by the officers, as described by them, fits within the generally accepted methods and rationale for

using force by police officers. (Def.’s Opp’n 2:16-19, Dkt. #71.) 

Having considered the parties’ arguments, the Court GRANTS Plaintiff’s Motion as to

opinions 1-3. These call for legal conclusions and “an expert witness cannot give an opinion as to

her legal conclusion, i.e., an opinion on an ultimate issue of law.” Hangarter v. Provident Life and

Acc. Ins. Co., 373 F.3d 998, 1016 (9th Cir. 2004) (internal quotations and citation omitted). 

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Accordingly, Mr. Cameron may not offer his opinion on these issues. However, the Court DENIES

Plaintiff’s Motion as to opinion 4 as it calls for an opinion, not a legal conclusion. Mr. Cameron

may offer his opinion as to whether the force used by the officers fits within the generally accepted

methods and rationale for using force by police officers.

b. Opinion 5

As to opinion 5, Plaintiff argues that because Mr. Cameron is not a physician, he is not

qualified to give an opinion as to the causation of Plaintiff’s injuries. (Pl.’s Mot. 4:1-3.) In

response, Defendants argue that Mr. Cameron is in a better position than a physician to offer such an

opinion because he has specialized knowledge regarding injuries caused from appropriate uses of

force, based on his training and experience. (Def.’s Mot. 2:24-3:3, Dkt. #71.) Defendants further

argue that, as a police instructor for 39 years on how to use appropriate force, Mr. Cameron has

personally received hundreds of injuries and witnessed officers causing thousands of injuries from

appropriately-applied use of force techniques. Id. at 3:4-6. Defendants further argue that because

Mr. Cameron has actually witnessed the injuries that arise from appropriate uses of force, he is

qualified to offer an opinion as to the causation of Plaintiff’s injuries. Id. at 3:6-8.

FRE 702 provides that an expert witness may offer an opinion as to his or her specialized

knowledge based on experience or training where that knowledge will assist the trier of fact in

understanding the evidence. The Court finds that Mr. Cameron’s experience as a police instructor

on the use of force qualifies him to offer his opinion as to whether Plaintiff’s injuries were consistent

with an appropriate use of force. Accordingly, the Court DENIES Plaintiff’s Motion as to opinion

5. 

c. Opinion 6

Plaintiff moves to exclude Mr. Cameron’s testimony as to the adequacy of the training

provided by the San Francisco Police Department (“SFPD”). (Pl.’s Mot. 4:3.) However, as

discussed above, Mr. Cameron’s specialized knowledge based on his experience and training

qualifies him to testify regarding his opinion on the adequacy of the training provided by the SFPD,

and any such opinion may be offered by Defendants in the Monell phase of the trial. Accordingly,

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the Court DENIES Plaintiff’s motion as to opinion 6.

3. Motion in Limine No. 3

In his third Motion in Limine, Plaintiff moves to exclude Defense Exhibit 1, (Dkt. #64), the

Department of Emergency Management (“DEM”) 911 Audio Recording. (Pl.’s Mot. 4:7-8.) 

Plaintiff argues that the tape is hearsay, that it is irrelevant because it does not identify Plaintiff as

the subject of the 911 call, and that it would consume undue time. Id. at 4:8-11. However, as the

Court stated at the February 4, 2010 pretrial conference, the 911 recording is admissible under both

the excited utterance (FRE 803(2)) and present sense impression (FRE 803(1)) exceptions to the

hearsay rule. The Court thus DENIES Plaintiff’s motion to exclude Defense Exhibit 1. 

4. Motion in Limine No. 4

Plaintiff next conditionally moves to exclude Defense Exhibit 2, (Dkt. #64), the DEM’s

Computer Assisted Dispatch Audio Recording, which records communications between the officers

and dispatch during the incident. (Pl.’s Mot. 4:15; Def.’s Opp’n 5:27-6:1, Dkt. #71.) In his motion

to exclude, Plaintiff states that he will withdraw his objection to this evidence if Defendants

produced the transcript. In response, Defendants state that as soon as the transcript is available to

them, it will be produced to Plaintiff. (Def.’s Opp’n 6:2-3, Dkt. #71.) Accordingly, the Court

RULES as follows: If Defendants fail to provide the transcript to Plaintiff by March 2, 2010,

Plaintiff’s motion to exclude the audio recording is GRANTED. If Defendants provide the

transcript by March 2, Plaintiff’s objection is DENIED.

5. Motion in Limine No. 5

Plaintiff next moves to exclude medical records from Dr. Paul Carlat, whom Plaintiff saw

once in 2001. (Pl.’s Mot. 4:20-21.) Plaintiff argues that the records are hearsay and too remote in

time. Id. at 4:21-22. Plaintiff acknowledges that he has stipulated to the authenticity of these

records, but argues that because Dr. Carlat will not testify as a witness, the records are inadmissible

as certain foundational aspects would be missing, such as the circumstances under which Plaintiff

visited the doctor and any assessment of Plaintiff’s mental state. Id. at 4:23-25. Finally, Plaintiff

argues that the records are inadmissible under FRE 403. Id. at 4:26.

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In response, Defendants argue that Plaintiff’s statements to Dr. Carlat are relevant to

Plaintiff’s damages claims because he seeks damages for psychological injury and emotional

distress. Specifically, because Plaintiff’s statements regard a road-rage incident, Defendants argue

that the records are relevant to show that Plaintiff’s psychological injuries and depression preexisted

the incident with the SFPD. (Def.’s Mot. 7:8-11, Dkt. #71.) Defendants further argue that

Plaintiff’s statements to Dr. Carlat are relevant to show his mental state at the time of the incident

because they describe his reactions to road rage situations. Id. at 7:13-22. Additionally, Defendants

argue that the records will be used for impeachment because Plaintiff made statements to the doctors

at San Francisco General Hospital that he did not have a history of psychiatric problems, yet he

described feelings of depression and suicidal ideation in his visit with Dr. Carlat. Id. at 7:4-6, 23-24. 

 

At the hearing, the undersigned informed the parties of her intention to admit the medical

records as exceptions to the hearsay rule under the business records (FRE 803(6)) and state of mind

(FRE 803(3)) exceptions, and that the records would admissible if used for impeachment. The

undersigned has reviewed Dr. Carlat’s records and determined that the probative value to the trier of

fact outweighs any prejudicial effect there might be to Plaintiff under FRE 403. However,

information in the records such as Plaintiff’s home address, social security number, and insurance

information are not admissible. Accordingly, the Court DENIES Plaintiff’s Motion to exclude Dr.

Carlat’s records. Defendants are ORDERED to submit a redacted version to the Court for use at

trial by March 4, 2010 at 3:00 p.m. 

6. Motion in Limine No. 6

In his sixth motion in limine, Plaintiff moves to exclude interviews with third party witnesses

not produced to Plaintiff. (Pl.’s Mot. 5:1-6.) Defendants respond that they do not intend to use

these documents at trial and thus do not oppose this motion. (Def.’s Opp’n 8:4, Dkt. #71.) 

Accordingly, the Court GRANTS Plaintiffs’ Motion. 

7. Motion in Limine No. 7

Next, Plaintiff moves to exclude any personnel records and educational history of the

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defendant officers not revealed at their depositions. (Pl.’s Mot. 5:20-24.) Plaintiff states that he

asked Sergeant Cheung and Officer Wu questions about their background and education, but they

both refused to answer on instruction from counsel. Id. at 5:22-24; fn 6. Plaintiff argues that

“[t]hese things and pieces of information should also be excluded as not relevant and [based on] the

[potential for] surprise at trial. . . .” Id. at 6:4-5. 

In response, Defendants agree that the evidence is irrelevant. Accordingly, the Court

GRANTS Plaintiff’s Motion to exclude any personnel records and educational history of Sergeant

Cheung and Officer Wu not revealed at their depositions. 

8. Motion in Limine No. 8

In his Motion in Limine No. 8, Plaintiff moves to exclude evidence regarding his alleged

involvement in incidents with other motorists, arguing that these incidents are irrelevant,

inadmissible under FRE 403, and, if testified to by other witnesses, “lack foundation and [would] be

hearsay. . . .” (Pl.’s Mot. 6:7-10.) Plaintiff offers no other legal authority in support of his

argument. In response, Defendants argue that such evidence demonstrates Plaintiff’s obsession with

reckless driving.

Combining Plaintiff’s motion and Defendants’ opposition, the Court is able to discern the

following evidence at issue: (1) a 2008 motor vehicle collision involving Plaintiff; (2) prior police

reports in which Plaintiff has reported reckless driving; (3) Plaintiff's testimony about an incident

prior to March 2007 where he was sued for kicking the vehicle of another driver; (4) Plaintiff's

statements to Dr. Paul Carlat about his road rage incident; (5) and Plaintiff's wife’s testimony that

Plaintiff reports reckless drivers to law enforcement five or six times per week. 

As discussed above, the Court finds that Dr. Carlat’s report is admissible. As to the

remaining evidence, having considered the parties’ arguments, the Court RULES as follows: The

Court declines at this time to exclude evidence of Plaintiff’s involvement in incidents with other

motorists, including accidents, road rage reports regarding other motorists, and Plaintiff’s wife’s

testimony regarding his reports. However, the Court reserves the right to exclude such evidence and

testimony during trial, and will only allow the evidence or testimony when offered for a proper

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purpose. Accordingly, the DENIES WITHOUT PREJUDICE Plaintiff’s Motion in Limine No. 8.

/// 

9. Motion in Limine No. 9

Finally, Plaintiffs move to exclude all testimony of Defendants’ proposed witness, Todd

Brenneck. (Pl’s Mot. 6:18-19.) Defendants do not oppose this motion. (Def.’s Opp’n 10:19-20,

Dkt. #71.) Accordingly, the Court GRANTS Plaintiff’s Motion in Limine No. 9. 

IT IS SO ORDERED.

Dated: February 26, 2010 _______________________________

Maria-Elena James 

Chief United States Magistrate Judge 

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