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PLAINTIFF’S MOTION IN LIMINE NO. 2 TO EXCLUDE CERTAIN REFERENCES RE WITNESS HENDRY 

MIRIAM KIM (State Bar No. 238230) 

miriam.kim@mto.com 

EMILY C. CURRAN-HUBERTY (State Bar No. 293065) 

emily.curran-huberty@mto.com 

SKYLAR D. BROOKS (State Bar No. 310707) 

skylar.brooks@mto.com 

MUNGER, TOLLES & OLSON LLP 

560 Mission Street 

Twenty-Seventh Floor 

San Francisco, California 94105-2907 

Telephone: (415) 512-4000 

Facsimile: (415) 512-4077 

Attorneys for Plaintiff 

RENEE LEPAGE 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION 

RENEE LEPAGE, an individual, 

Plaintiff, 

vs. 

COUNTY OF NAPA; COUNTY OF NAPA 

SHERIFF’S DEPARTMENT; AND DEPUTY 

TIMOTHY REID, 

Defendants. 

 Case No. 3:17-cv-00600-LB 

PLAINTIFF’S MOTION IN LIMINE NO. 2 

TO EXCLUDE CERTAIN REFERENCES 

REGARDING WITNESS MOLLY 

HENDRY 

Judge: Hon. Laurel Beeler 

Date: September 26, 2019 

Time: 1:30 p.m. 

Crtrm.: B – 15th Floor 

Trial Date: October 15, 2019 

Case 3:17-cv-00600-LB Document 116 Filed 09/06/19 Page 1 of 6
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 -1- 17-cv-00600-LB

PLAINTIFF’S MOTION IN LIMINE NO. 2 TO EXCLUDE CERTAIN REFERENCES RE WITNESS HENDRY 

I. INTRODUCTION 

This excessive force civil rights lawsuit revolves around injuries that Plaintiff Renee 

LePage suffered while she was at the Napa County Superior Courthouse on December 1, 2015, for 

an unrelated criminal matter involving marijuana. There is no dispute that why Ms. LePage was at 

the courthouse that day is wholly irrelevant to this case. 

Nonetheless Defendants County of Napa, County of Napa Sheriff’s Department, and 

Deputy Timothy Reid (“Defendants”) have indicated that they plan to tell the jury that Molly 

Hendry—Ms. LePage’s then-attorney who they assert was a witness to the incident—was Ms. 

LePage’s “criminal defense attorney” or “Public Defender.” They may wish to do so to bolster 

Ms. Hendry’s credibility with the jury or as an end-run around to informing the jury about Ms. 

LePage’s arrest or criminal history. But any information disclosing that Ms. LePage was at the 

courthouse for a criminal matter is inconsistent with Defendants’ concession that her arrest and 

criminal history and why she was at the courthouse are not relevant to this case. 

In addition to being irrelevant, allowing the jury to learn that Ms. LePage had a criminal 

defense attorney would risk unfair prejudice, confuse and mislead the jury, and waste time at trial. 

It raises more questions than answers and comes with a high danger of leading the jury to draw 

unwarranted inferences, rely on emotions or biases rather than the evidence, or mistakenly 

conflate Ms. LePage’s burden of proof in this civil case with the higher evidentiary standard in a 

criminal case. Ms. LePage would also be unable to fully respond to and explain the nature of her 

prior arrest and criminal history without wasting time at trial and further deviating from triable 

issues. 

After meeting and conferring, the parties have reached an impasse. Despite Defendants’ 

agreement to not otherwise refer to Ms. LePage’s arrest, criminal history, or reason for being at 

the courthouse, they have not agreed to avoid referring to Ms. Hendry as her criminal defense 

attorney or Public Defender. See Ex. A [8/18/19 Correspondence from Philip Downs].1

 

 

1

 Unless otherwise indicated, citations to exhibits refer to the Declaration of Emily C. CurranHuberty, filed concurrently herewith. 

Case 3:17-cv-00600-LB Document 116 Filed 09/06/19 Page 2 of 6
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PLAINTIFF’S MOTION IN LIMINE NO. 2 TO EXCLUDE CERTAIN REFERENCES RE WITNESS HENDRY 

The Court should limit references to Ms. Hendry to simply being Ms. LePage’s “attorney” 

at the time of the underlying incident. Additional color is both unnecessary and inappropriate. 

II. ARGUMENT 

A. Referring to Ms. Hendry as a “Criminal Defense Attorney” or “Public 

Defender” Would Reveal to the Jury Why Ms. LePage Was at the Courthouse, 

Which Defendants Concede Is Not Relevant 

Ms. Hendry’s prior role as Ms. LePage’s criminal defense attorney is irrelevant to this case 

and therefore inadmissible under Federal Rule of Evidence 402. Counsel for Defendants agrees 

that “[t]he fact that [Ms. LePage] was at the court th[e] day [of the incident] re sentencing is not 

relevant,” just as her “criminal history, arrests, and convictions are not relevant.” Ex. A [8/18/19 

Correspondence from Philip Downs] at 5. The reason such information is irrelevant is clear: Ms. 

LePage’s criminal case bears no similarity or connection to the underlying incident except that it 

resulted in her crossing paths with Deputy Reid at the courthouse on the day of the incident. 

When an officer involved in an excessive force case lacks knowledge of the plaintiff’s 

prior conduct, “evidence of prior conduct is irrelevant.” Ellis v. Navarro, 2012 WL 3580284, at 

*3 (N.D. Cal. Aug. 17, 2012). Here, it is undisputed that Deputy Reid had no previous contact 

with or knowledge about Ms. LePage, so the criminal nature of her prior case is irrelevant. See, 

e.g., Ex. B [Reid Dep. Tr.] at 79:8–10, 165:9–11. And Ms. LePage’s marijuana-related criminal 

charge—which was later expunged—has no bearing on her character for truthfulness.2

 See Hill v. 

Arnold, 2015 WL 3523199, at *5 (N.D. Cal. June 4, 2015) (excluding evidence of plaintiff’s 

crimes not involving dishonesty in part because they were “not necessarily indicative of [his] 

character for truthfulness”). 

Any reference to Ms. Hendry as a criminal attorney or Public Defender would lead the jury 

to infer that Ms. LePage was a criminal defendant at the time of the incident. In other words, this 

information would effectively reference Ms. LePage’s criminal history and reason for being at the 

 

2

 Ms. LePage pleaded no contest to a misdemeanor charge in the criminal case, which was 

subsequently expunged. Ex. C, [Ms. LePage’s expungement]. Even absent the expungement, a 

misdemeanor no contest plea could not be used against her in this matter. See Baca v. California, 

2016 WL 234399, at *3 (N.D. Cal. Jan. 20, 2016) (citing California Penal Code Section 1016(3) 

and Cahoon v. Governing Bd. of Ventura Unified Sch. Dist., 171 Cal. App. 4th 381, 384 (2009)). 

Case 3:17-cv-00600-LB Document 116 Filed 09/06/19 Page 3 of 6
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PLAINTIFF’S MOTION IN LIMINE NO. 2 TO EXCLUDE CERTAIN REFERENCES RE WITNESS HENDRY 

courthouse—information that Defendants have already agreed is irrelevant. The Court should thus 

exclude any reference to Ms. Hendry being a criminal attorney or Public Defender under Rule 

402. 

B. Referring to Ms. Hendry as a “Criminal Defense Attorney” or “Public 

Defender” Also Raises Risks of Unfair Prejudice, Confusing the Issues, 

Misleading the Jury, and Wasting Time 

Alternatively, even if the information were somehow relevant, reference to Ms. Hendry 

having represented Ms. LePage in a criminal matter should be excluded under Federal Rule of 

Evidence 403. Such information could only be designed to bolster Ms. Hendry’s credibility while 

unfairly disparaging Ms. LePage’s or appealing to the jury’s emotions and biases. 

Under Rule 403, courts “may exclude relevant evidence if its probative value is 

substantially outweighed by a danger of,” among other things, “unfair prejudice, confusing the 

issues, misleading the jury, . . . [or] wasting time.” Fed. R. Evid. 403. Referring to Ms. Hendry as 

a “criminal defense attorney” or “Public Defender” raises all of those dangers. It risks misleading 

the jury about triable issues, confusing the jury about the applicable burden of proof, and 

provoking unwarranted speculation about Ms. LePage’s irrelevant criminal history. On the other 

side of the Rule 403 ledger, there is zero, or at best negligible, countervailing probative value. 

The Ninth Circuit has acknowledged “the prejudicial nature of evidence of prior criminal 

history” and advised courts to “take great care to limit” such evidence. United States v. Weiland, 

420 F.3d 1062, 1078 (9th Cir. 2005). This Court has held that in excessive force cases, evidence 

of prior arrests is “potentially highly unfairly prejudicial.” Monroe v. Griffin, 2015 WL 5258115, 

at *1 (N.D. Cal. Sept. 9, 2015) (excluding criminal history evidence over arguments about 

“negligible probative value with respect to [plaintiff’s] alleged ‘bias against the police’ and 

‘motive to bring this action against the defendants’”). Such evidence “presents a substantial risk 

that the jury will render a defense verdict based not on the evidence but on emotions or other 

improper motives, such as a belief that bad people should not be permitted to recover from 

honorable police officers.” Id. (quoting Barber v. City of Chi., 725 F.3d 702, 714 (7th Cir. 2013)). 

Here, allowing Defendants to refer to Ms. Hendry’s role as a criminal defense attorney 

raises those same concerns. It would inform the jury that Ms. LePage has been previously arrested 

Case 3:17-cv-00600-LB Document 116 Filed 09/06/19 Page 4 of 6
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PLAINTIFF’S MOTION IN LIMINE NO. 2 TO EXCLUDE CERTAIN REFERENCES RE WITNESS HENDRY 

or has a criminal history. There is substantial danger that the jury would then rely on emotions or 

biases against criminal defendants rather than the weight of the evidence. Such insinuation of a 

criminal history could also lead the jury to speculate that the charges against Ms. LePage were far 

more serious than they in fact were. 

Furthermore, referencing Ms. Hendry’s role as a criminal attorney would risk misleading 

or confusing jurors about the triable issues before them, which have nothing to do with why Ms. 

LePage was at the courthouse at the time of the incident. This Court has recognized the danger of 

confusing a jury about “very different evidentiary and legal standards,” which may occur when lay 

jurors hear about a criminal matter that invokes a higher burden of proof than is applicable in civil 

cases. United States v. Pac. Gas & Elec. Co., 178 F. Supp. 3d 927, 947–48 (N.D. Cal. 2016). 

The information would also invite jurors to draw unwarranted conclusions about Ms. LePage’s 

criminal history that she cannot fully respond to or explain without wasting time at trial and 

delving further into irrelevant matters. 

Therefore, the dangers of referring at trial to Ms. Hendry as a criminal defense attorney or 

Public Defender overwhelmingly outweigh that information’s probative value, to the extent there 

is any. 

III. CONCLUSION 

Ms. LePage respectfully requests that the Court preclude Defendants from referring to Ms. 

Hendry as her Public Defender, criminal defense attorney, or other equivalent terms. 

Case 3:17-cv-00600-LB Document 116 Filed 09/06/19 Page 5 of 6
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PLAINTIFF’S MOTION IN LIMINE NO. 2 TO EXCLUDE CERTAIN REFERENCES RE WITNESS HENDRY 

DATED: August 20, 2019 Respectfully submitted, 

MUNGER, TOLLES & OLSON LLP 

 MIRIAM KIM 

EMILY C. CURRAN-HUBERTY 

SKYLAR D. BROOKS 

By: /s/ Emily C. Curran-Huberty 

 Emily C. Curran-Huberty 

 

 Attorneys for Plaintiff RENEE LEPAGE 

Case 3:17-cv-00600-LB Document 116 Filed 09/06/19 Page 6 of 6