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Case No. 17-CV-00007-LHK 

ORDER ON MOTIONS IN LIMINE

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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

JACQUELINE ZHANG,

Plaintiff,

v.

COUNTY OF MONTEREY, et al.,

Defendants.

Case No. 17-CV-00007-LHK 

ORDER ON MOTIONS IN LIMINE

Re: Dkt. Nos. 105, 107, 108, 109

Before the Court are the motions in limine of Plaintiff Jacqueline Zhang (“Plaintiff”), ECF 

No. 105, and the motions in limine of Defendants County of Monterey (“the County”), Monterey 

County Resource Management Agency (“RMA”), and Monterey County Parks Department 

(collectively, “Defendants”), ECF Nos. 107, 108, 109. After reviewing the parties’ briefing, the 

case law, and the record in this case, and balancing the considerations set forth in Federal Rule of 

Evidence 403, the Court rules as follows:

Plaintiff’s Motions in Limine (“MIL”)

Plaintiff’s MIL # 1: Plaintiff moves to exclude all testimony by Defendant’s witness Kimberly 

Moore because Defendants did not identify Moore as a potential witness until after discovery 
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closed. ECF No. 105 at 1–3. Defendants oppose, ECF No. 114 at 2–5, and file a MIL, which seeks 

to call Moore as a witness. See Defendant’s MIL # 1, infra.

RULING: GRANTED. Specifically, the Court rules as follows. 

Defendants move to call Moore, who is the County’s Assistant Director of Human 

Resources, to provide testimony regarding the County’s personnel policies and practices. ECF No. 

107 at 2. Defendants acknowledge that Defendants also intend to call Irma Ramirez-Bough, the 

County’s Director of Human Resources, to provide testimony regarding the County’s personnel 

policies and practices. Id. However, Defendants contend that Moore, “who has worked in the 

County’s human resources department for over 20 years will provide a more historical perspective 

of the policies and practices that are at issue.” Id. 

Defendants concede that Moore was not identified as a potential witness until after fact 

discovery closed on January 19, 2018. Id. at 4. Defendants first identified Moore in a joint case 

management statement filed on May 13, 2020, where the parties heavily disputed what fact and 

expert discovery should be reopened. ECF No. 84. On May 14, 2020, this Court stated that “[n]o 

discovery should be reopened” but stated that, if the parties insisted on reopening discovery, the 

Court would only reopen discovery in full rather than in part. ECF No. 85. On May 15, 2020, the 

parties filed a joint statement, where both parties agreed to forego additional discovery. ECF No. 

86. On May 18, 2020, the Court declined to reopen discovery. ECF No. 87. 

In sum, Defendants concede that Moore was not identified as a potential witness until after 

fact discovery closed. ECF No. 107 at 4. “If a party fails to . . . identify a witness as required by 

Rule 26(a) or (e), the party is not allowed to use that . . . witness . . . at a trial, unless the failure 

was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). The Court addresses in turn: 

(1) whether Defendants’ failure to timely identify Moore was substantially justified, and (2) 

whether Defendants’ failure to timely identify Moore was harmless. 

Defendants contend that their belated failure to identify Moore was substantially justified

because the need for Moore’s testimony did not arise until after the close of discovery. Id. at 3. 

Defendants’ argument relates to the dispute between the parties regarding Plaintiff’s start date, 
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which Defendants contend was on October 5, 2015. Id. Defendants assert that, prior to the close of 

discovery, Plaintiff contended that her start date was earlier than October 5, 2015 because Plaintiff

attended a Parks Commission meeting, reviewed the County’s budget, and visited a park before 

October 5, 2015. ECF No. 114 at 3. Defendants contend that the dispute regarding Plaintiff’s start 

date was about Plaintiff’s own conduct, not the County’s policies regarding start dates. Id. 

According to Defendants, Plaintiff contended for the first time in Plaintiff’s Opposition to 

Defendants’ Motion for Summary Judgment that Plaintiff’s first payroll period began before 

October 5, 2015, which, under County policy meant that her start date was before October 5, 2015. 

ECF No. 114 at 3. Thus, Defendants contend that Defendants did not know that Moore’s 

testimony on County policies regarding start dates was needed until after the close of discovery. 

The Court is not persuaded. In Plaintiff’s deposition on November 10, 2017, more than two 

months prior to the close of discovery, counsel for Defendants asked Plaintiff whether Plaintiff 

needed to start at the beginning of a pay period. See ECF No. 111 Exh. H at 44 (Plaintiff’s 

deposition) (“[Q:] They needed you to start at the beginning of a pay period? [A:] Yes. [Q:] And 

the beginning of a pay period is October 5th, 2015? [A:] Yes”); see also id. at 42 (“Either I have to 

start two weeks earlier to fall into the pay period, if not, I have to wait for another two weeks to 

start the next pay period”). Plaintiff originally testified that the pay period began on October 5, 

2015, the date that Defendants claim Plaintiff started. Id. However, in an errata to the deposition, 

Plaintiff corrected her testimony to state that the pay period began on October 3, 2015. See ECF 

No. 111 Exh. I. This deposition suggests that Defendants were on notice that the start of Plaintiff’s 

first pay period could have significance in determining Plaintiff’s start date. Accordingly, the 

Court concludes that Defendants’ belated identification of Moore was not substantially justified. 

As to prejudice resulting from Defendants’ belated identification of Moore, Defendants 

contend that Plaintiff was given the opportunity to depose Moore following Defendants’ belated 

identification of Moore. ECF No. 114 at 4. However, fact discovery closed on January 19, 2018. 

ECF No. 87. Therefore, Plaintiff has been deprived of the opportunity to conduct discovery related 

to Moore. Courts have held that depriving a party of the opportunity to conduct discovery or 
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depose untimely-disclosed witnesses demonstrates harm. See, e.g., Miranda v. U.S. Sec. Assoc., 

2019 WL 2929966, at *6 (N.D. Cal. July 8, 2019) (concluding that the defendant had 

demonstrated prejudice because the defendant “has been deprived of the opportunity to conduct 

discovery related to [the late identified witnesses] or take their depositions”); La Loma Grande 

LLC v. United States Dep’t of Homeland Security, 2015 WL 11163636, at *1 (D. Ariz. Aug. 3, 

2015) (“La Loma’s failure to disclose the witnesses in a timely manner is not harmless: if the 

United States had known that La Loma intended to call Ms. Ziegler and Ms. Hoskin as witnesses, 

the United States could have deposed the individuals or otherwise explored the contours of their 

expected testimony during discovery.”). Because Defendants’ belated identification of Moore was 

neither substantially justified nor harmless, the Court excludes Moore as a witness. See Fed. R. 

Civ. P. 37(c)(1). Accordingly, the Court GRANTS Plaintiff’s MIL # 1. 

Plaintiff’s MIL # 2: Plaintiff moves to exclude evidence regarding the County’s justification for 

Plaintiff’s termination. ECF No. 105 at 4–5. Defendants oppose. ECF No. 114 at 5–6. 

RULING: DENIED. Specifically, the Court rules as follows.

Plaintiff moves to exclude evidence regarding the County’s justification for Plaintiff’s 

termination. ECF No. 105 at 4–5. Plaintiff contends that the question for the jury in the instant 

case is whether Plaintiff received due process, not whether Plaintiff’s termination was justified. Id. 

Accordingly, Plaintiff asserts that evidence regarding the County’s justification for Plaintiff’s 

termination is irrelevant and would confuse the jury. Id. 

Defendants contend that “the County’s evidence describing Plaintiff’s job performance and 

unprofessional communications is inextricably intertwined with Plaintiff’s allegation that she was 

terminated without due process, and as such, is necessary to provide appropriate context and 

coherence for the County’s factual narrative regarding the series of events leading to Plaintiff’s 

termination.” ECF No. 114 at 5. 

Irrelevant evidence is inadmissible. Fed. R. Evid. 402. Under Federal Rule of Evidence 

401, evidence is relevant if “(a) it has any tendency to make a fact more or less probable than it 
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would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed. 

R. Evid. 401. In the instant case, three of Plaintiffs’ claims remain to be decided: (1) denial of a 

property interest without due process in violation of the Fourteenth Amendment of the United 

States Constitution; (2) denial of a property interest without due process in violation of the 

California Constitution; and (3) writ of mandate under California Code of Civil Procedure § 1085. 

See Zhang v. County of Monterey, 804 F. App’x 454, 456–58 (9th Cir. 2020) (remanding for 

consideration of Plaintiff’s claim that she was deprived of a property interest without due process 

and Plaintiff’s claim under California Code of Civil Procedure § 1085).

Plaintiff’s “due process claim hinges on proof of two elements: (1) a protectible liberty or 

property interest . . .; and (2) a denial of adequate procedural protections.” Foss v. National 

Marine Fisheries Service, 161 F.3d 584, 588 (citing Bd. of Regents v. Roth, 408 U.S. 564, 569–71 

(1972)). As to whether Plaintiff had a protected property interest in her employment, “a 

‘permanent employee,’ dismissible only for cause, has a property interest in [her] continued 

employment which is protected by due process,” but “a probationary (or nontenured) civil service 

employee, at least ordinarily, may be dismissed without a hearing or judicially cognizable good 

cause.” Dorr v. Butte County, 795 F.2d 875, 876 (9th Cir. 1986) (citations omitted). 

In the instant case, evidence regarding the justification for Plaintiff’s termination is 

relevant to Plaintiff’s remaining claims for at least three reasons. First, Plaintiff contends that 

Plaintiff passed her probationary period and was thus a permanent employee dismissible only for 

cause. See ECF No. 106 at 8. Defendants’ evidence of Plaintiff’s job performance is relevant to 

rebut Plaintiff’s contention that Plaintiff successfully passed her probationary period and became a 

permanent employee. For instance, Plaintiff contends that Plaintiff had a reasonable expectation 

that Plaintiff passed her probationary period following Plaintiff’s performance appraisal on July 

15, 2016. Id. Defendants’ evidence regarding Plaintiff’s job performance is relevant to rebut 

Plaintiff’s contention regarding Plaintiff’s July 15, 2016 performance appraisal.

Second, if Plaintiff were a permanent employee, Plaintiff would be dismissible only for 

cause. See Dorr, 795 F.2d at 876 (citations omitted) (stating that, ordinarily, a permanent 
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employee is dismissible only for cause); accord Zhang, 804 F. App’x at 456 (“If Zhang became a 

permanent employee before the County terminated her, it is undisputed that under County policy, 

she could be terminated only for cause, and she was entitled to five days’ written notice and an 

opportunity to challenge the County’s decision at a hearing.”). Defendants’ evidence of Plaintiff’s 

job performance is relevant to whether Defendants had cause to terminate Plaintiff’s employment. 

Third, Plaintiff contends that Shawn Ellerbee, Plaintiff’s former supervisor, and John 

Guertin, the Interim Deputy Director of Land Use and Community Development at the time, 

terminated Plaintiff’s employment without due process because Plaintiff participated in 

investigations into RMA. See ECF No. 113. Defendants dispute Plaintiff’s contention and 

contends that Plaintiff was terminated because of Plaintiff’s job performance. ECF No. 109. As 

explained below, the Court concludes that Plaintiff can present evidence on investigations into 

RMA. See Defendants’ MIL # 3, infra. If Plaintiff can present evidence regarding Ellerbee and 

Guertin’s alleged motives to terminate Plaintiff without due process, Defendants must be able to 

present evidence to rebut Plaintiff’s evidence. Accordingly, the Court DENIES Plaintiff’s MIL # 

2. 

Plaintiff’s MIL # 3: Plaintiff moves to exclude evidence regarding Plaintiff’s job performance, 

qualifications, experience, and communication style, and the events leading up to Plaintiff’s 

termination because Plaintiff contends that this evidence is cumulative. ECF No. 105 at 5–6. 

Defendants oppose. ECF No. 114 at 6–7.

RULING: DENIED WITHOUT PREJUDICE. Specifically, the Court rules as follows.

Plaintiff contends that Defendants intend to present at least 13 witnesses to testify

regarding Plaintiff’s job performance, qualifications, experience and communication style, and the 

events leading up to Plaintiff’s termination. ECF No. 105 at 5–6. Plaintiff contends that these 

witnesses’ testimony will be cumulative. Id. Plaintiff asserts that the testimony of 2 witnesses, 

Ellerbee and Mariscal, both of whom were formerly Plaintiff’s supervisors, is sufficient on this 

topic. Id. at 6. 
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Defendants contend that Plaintiff provides “zero evidentiary support” for the argument that 

Defendants’ witnesses will provide cumulative testimony because Plaintiff has not deposed 

Defendants’ witnesses on these topics. ECF No. 114 at 6. Defendants further state that Defendants 

do not intend to present cumulative testimony. Id. 

Federal Rule of Evidence 403 allows the Court to exclude relevant evidence if its probative 

value is “substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, 

misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”

Fed. R. Evid. 403. Federal Rule of Evidence “403’s cumulative evidence provision does not 

prohibit the introduction of cumulative evidence; rather, it merely permits courts to exclude 

cumulative evidence when it has little incremental value.” United States v. Miguel, 87 F. App’x 

67, 68 (9th Cir. 2004). Under Federal Rule of Evidence 403, a district court can exclude evidence 

that is “needlessly cumulative and a waste of time.” United States v. Shayota, 784 F. App’x 986, 

990 (9th Cir. 2019). 

In the instant case, Plaintiff contends that Defendants intend to introduce cumulative 

evidence regarding the justification for Plaintiff’s termination. ECF No. 105 at 5–6. However, 

Plaintiff has not deposed Defendants’ witnesses on these topics. ECF No. 114 at 6. Moreover, 

Defendants state that Defendants do not intend to present cumulative testimony. Id. Accordingly, 

Plaintiff has failed to provide a sufficient record for the Court to determine whether Defendants’ 

testimony is cumulative. Thus, the Court DENIES WITHOUT PREJUDICE Plaintiff’s MIL # 3. 

See Yowan Yang v. ActioNet, Inc., 2016 WL 8929250, at *2 (C.D. Cal. Feb. 19, 2016) (“[T]o 

exclude evidence on a motion in limine the evidence must be inadmissible on all potential 

grounds. Unless evidence meets this high standard, evidentiary rulings should be deferred until 

trial so that questions of foundation, relevancy, and potential prejudice may be resolved in proper 

context.”) (quotation omitted). Plaintiff can make specific objections to evidence Plaintiff 

considers cumulative during the trial. Moreover, the Court notes that, in addition to the limitations 

imposed by the Federal Rules of Evidence, the Court will impose and enforce time limits during 

trial. 
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Defendants’ Motions in Limine (“MIL”)

Defendants’ MIL # 1: Defendants move to call Moore as a witness. ECF No. 107. Plaintiff 

opposes, ECF No. 111, and files a MIL to exclude Moore’s testimony. See Plaintiff’s MIL # 1, 

supra. 

RULING: DENIED. As explained above, the Court GRANTS Plaintiff’s MIL # 1 and excludes 

Moore as a witness because Moore was not timely identified and Defendants’ untimely 

identification was neither substantially justified nor harmless. See Plaintiff’s MIL # 1, supra.

Defendants’ MIL # 2: Defendants move to preclude Plaintiff from introducing evidence 

concerning Plaintiff’s claims or remedies related to claims that were dismissed on appeal. ECF 

No. 108. Plaintiff opposes. ECF No. 112. 

RULING: DENIED WITHOUT PREJUDICE. Specifically, the Court rules as follows.

Defendant contends that the Court should exclude evidence concerning Plaintiff’s claims 

or remedies related to claims that were dismissed on appeal. ECF No. 108. Plaintiff contends that 

most of the facts and evidence concerning Plaintiff’s employment are equally relevant to the 

remaining claims. ECF No. 112. 

Irrelevant evidence is inadmissible. Fed. R. Evid. 402. Under Federal Rule of Evidence 

401, evidence is relevant if “(a) it has any tendency to make a fact more or less probable than it 

would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed. 

R. Evid. 401. Moreover, the Court can exclude relevant evidence under Federal Rule of Evidence 

403 “if its probative value is substantially outweighed by a danger of one or more of the 

following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, 

or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. 

Generally, evidence of dismissed claims is no longer relevant and can be excluded. See, 

e.g., Ng v. Snow, 2008 WL 5459167, at *1 (C.D. Cal. Aug. 18, 2008) (granting motion in limine 

to exclude evidence about incidents on which the court had already granted summary judgment). 
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However, evidence of dismissed claims can be admitted if relevant for a limited purpose. See 

Yang, 2016 WL 8929250, at *10 (denying motion in limine to exclude all evidence relating to 

dismissed employment claim based on race because “[w]hile neither party can present evidence 

relating to dismissed claims, in this case or any other, the Court will not sustain any objection to 

evidence that is relevant to the claims at trial”); Brown v. Kavanaugh, 2013 WL 1819796, at *2 

(E.D. Cal. Apr. 30, 2013) (granting in part and denying in part motion in limine to exclude 

evidence about dismissed claims because “[m]atters pled and dismissed in this case are not 

relevant to Plaintiff’s remaining claims” but in a retaliation action, “Plaintiff must be permitted to 

explain for what the defendants were retaliating against”). 

In the instant case, judgment has already been entered for the County on five of Plaintiff’s 

claims: (1) discrimination on the basis of race and national origin in violation of Title VII; (2) 

discrimination on the basis of race, national origin, and marital status in violation of FEHA; (3) 

discrimination on the basis of race in violation of 42 U.S.C. § 1981; (4) deprivation of a liberty 

interest without due process of law in violation of the Fourteenth Amendment of the United States 

Constitution; and (5) writ of mandate under California Code of Civil Procedure § 1094.5. See 

Zhang, 804 F. App’x at 456–58 (affirming grant of summary judgment to Defendants on five 

claims). 

The jury will decide the following three remaining claims at trial: (1) denial of a property 

interest without due process in violation of the Fourteenth Amendment of the United States 

Constitution; (2) denial of a property interest without due process in violation of the California 

Constitution; and (3) writ of mandate under California Code of Civil Procedure § 1085. Id. 

The Court cannot issue a blanket ruling on this evidence. Instead, Defendants should object

at trial to specific evidence relating to Plaintiff’s dismissed claims. Accordingly, the Court 

DENIES WITHOUT PREJUDICE Defendants’ MIL # 2. See BBC Grp. NV LLC v. Island Life 

Restaurant Grp. LLC, 2020 WL 70523, at *2 (W.D. Wash. Jan. 7, 2020) (deferring ruling on 

motion in limine because “until actual evidence is offered, it is difficult for the Court to determine 

what evidence would solely support BBC’s dismissed claims without relevance to its defenses,” 
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which remained in controversy). Moreover, to the extent that evidence relating to Plaintiff’s 

dismissed claims is offered, the Court will provide a limiting instruction instructing the jury that 

Defendants prevailed on Plaintiff’s dismissed claims and the jury is not to consider Plaintiff’s 

dismissed claims. See Fed. R. Evid. 105. 

Defendants’ MIL # 3: Defendants move to preclude Plaintiff from introducing evidence relating to 

investigations into alleged financial mismanagement at RMA. ECF No. 109. Plaintiff opposes. 

ECF No. 113. 

RULING: DENIED. Specifically, the Court rules as follows.

Defendants move to preclude Plaintiff from introducing evidence relating to investigations 

into alleged financial mismanagement at RMA. ECF No. 109. Plaintiff opposes and contends that 

the investigations are relevant. ECF No. 113. 

Irrelevant evidence is inadmissible. Fed. R. Evid. 402. Under Federal Rule of Evidence 

401, evidence is relevant if “(a) it has any tendency to make a fact more or less probable than it 

would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed. 

R. Evid. 401. Moreover, the Court can exclude relevant evidence under Federal Rule of Evidence 

403 “if its probative value is substantially outweighed by a danger of one or more of the 

following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, 

or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. 

In the instant case, Defendants contend that evidence relating to investigations into the 

RMA is irrelevant. ECF No. 109. Plaintiff contends that the investigations are relevant because

Plaintiff’s involvement in the investigations led to the termination of her employment without due 

process. ECF No. 113. According to Defendants, Plaintiff’s evidence is irrelevant, speculative, 

and meritless. ECF No. 109. 

The Court disagrees. Plaintiff’s evidence is relevant for at least two reasons. First, Plaintiff 

contends that Plaintiff’s involvement in the investigations motivated Ellerbee and Guertin to 

terminate her employment without due process of law. Specifically, Plaintiff contends that: (1) 
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around the time of Plaintiff’s termination, Plaintiff was participating in the investigations directed 

by her husband, Gary Giboney, the Chief Deputy Auditor Controller at the time, against the orders 

of Ellerbee, Plaintiff’s supervisor at the time; (2) two of the subjects of the investigations were 

Ellerbee, who terminated Plaintiff’s employment, and Guertin, the Interim Deputy Director of 

Land Use and Community Development at the time, who reviewed Plaintiff’s termination; and (3) 

Ellerbee and Guertin were motivated to terminate Plaintiff’s employment without due process 

because of Plaintiff’s participation in the investigations. ECF No. 113; see also Giboney Decl. ¶ 

22 (stating that Plaintiff’s employment was terminated because of the investigations into RMA). 

Second, Plaintiff’s contention that Plaintiff was terminated for her participation in the 

investigations into RMA is relevant because it rebuts Defendants’ contention that Plaintiff was 

terminated for Plaintiff’s job performance. As explained above, evidence regarding Plaintiff’s job 

performance is relevant for several reasons. See Plaintiff’s MIL # 2, supra. Thus, Plaintiff is 

permitted to introduce evidence regarding the investigations into RMA for the relevant purposes 

outlined above. Accordingly, the Court DENIES Defendants’ MIL # 3. 

IT IS SO ORDERED.

Dated: May 4, 2021

______________________________________

LUCY H. KOH

United States District Judge