Dunsmore v. State of California

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DARRYL DUNSMORE, ANDREE Case No.: 20-cv-00406-AJB-DDL ANDRADE, ERNEST 12 ARCHULETA, JAMES CLARK, ORDER ON PLAINTIFFS’ EX PARTE ANTHONY EDWARDS, REANNA 13 LEVY, JOSUE LOPEZ, MOTION CHRISTOPHER NORWOOD, JESSE 14 OLIVARES, GUSTAVO (Doc. No. 815) SEPULVEDA, MICHAEL TAYLOR, 15 and LAURA ZOERNER, on behalf of themselves and all others similarly 16 situated, 17 Plaintiffs, 18 v. 19 SAN DIEGO COUNTY SHERIFF’S DEPARTMENT, COUNTY OF SAN 20 DIEGO, SAN DIEGO COUNTY PROBATION DEPARTMENT, and 21 DOES 1 to 20, inclusive, Defendants. 22 23 Presently pending before the Court is Plaintiffs’ ex parte application for leave to file 24 limited objections and a motion to strike improper evidence and argument submitted with 25 Defendants’ Reply in Support of their Motion for Partial Summary Judgment. (Doc. No. 26 815.) In the alternative, Plaintiffs seek permission to file a sur-reply containing only the 27 objections and motion to strike. (Id.) As part of their Reply in Support of their Motion for 28 Partial Summary Judgment, Defendants filed an appendix including 10 supporting 1 declarations, many including exhibits. (See generally Doc. No. 806-1.) 2 Plaintiffs move to strike the following: (1) paragraphs 4 to 25 of Dr. Jon 3 Montgomery’s declaration, which describes medical files that have not been attached as 4 evidence, (Doc. No. 806-1, Appendix (“App.”) 2)); (2) paragraphs 3 to 5 of Sergeant Frank 5 Burkey’s declaration, describing the contents of a surveillance video that has not been 6 attached as evidence, (Doc. No. 806-1, App. 5); (3) paragraphs 2 to 4 of Sergeant Arturo 7 Bernal Perales’s declaration, raising new evidence not responsive to evidence in Plaintiffs’ 8 opposition, (Doc. No. 806-1, App. 7); (4) the declaration of Eunice Ramos, which raises 9 new evidence for an argument never raised in Defendants’ motion, (Doc. No. 806-1, App. 10 8); (5) the declaration of Dr. Brian Withrow, an improper and untimely expert declaration, 11 (Doc. No. 806-1, App. 9); and (6) paragraphs 5 to 6 of Susan Coleman’s amended 12 declaration, an attorney declaration with improper argument and evidentiary objections, 13 (Doc. No. 809). (Doc. No. 815 at 2–3.) In support, Plaintiffs argue these declarations are 14 either improper evidence submitted for the first time in support of a reply brief or are 15 inadmissible under the Federal Rules of Evidence. (Doc. No. 815 at 2–3.) For example, 16 Defendants rely upon the Declaration of Sergeant Bernal Perales and newly assert in their 17 Reply that they “are currently providing legal research access to all [incarcerated persons] 18 through facility kiosks.” (Doc. No. 806 at 18 (citing Doc. No. 806-1 at 72, ¶¶ 2–4).) 19 However, this fact was not asserted in Defendants’ Motion for Partial Summary Judgment. 20 (See generally Doc. No. 782.) Similarly, Defendants, relying on the Declaration of Eunice 21 Ramos, newly contend that the County’s “program, to wit, policing in stopping and 22 arresting people, is not funded by and does not receive any financial assistance from the 23 State.” (Doc. No. 806 at 18 (citing Doc. No. 806-1 at 78–79, ¶¶ 2–4).) This was neither 24 raised in Defendants’ Motion for Partial Summary Judgment, nor in Plaintiffs’ Opposition. 25 (See generally Doc. Nos. 782, 796.) 26 “It is improper for a moving party to introduce new facts or different legal arguments 27 in the reply brief than those presented in the moving papers.” United States ex rel. Giles v. 28 Sardie, 191 F. Supp. 2d 1117, 1127 (C.D. Cal. 2000) (citing Lujan v. Nat’l Wildlife Fed’n, 1 ||497 U.S. 871, 894-95 (1990)); see also Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2 2007) (“The district court need not consider arguments raised for the first time in a reply 3 || brief.”). Further, Civil Local Rule 7.1 provides that “copies of all documentary evidence 4 || which the movant intends to submit in support of the motion, or other request for ruling by 5 court, must be served and filed with the motion.” S.D. Cal. Civ. L.R. 7.1(f(2)(a). 6 Defendants do not dispute they have submitted and relied upon declarations raising 7 ||new facts and evidence. Rather, Defendants assert that “[i]f any remedy is to be had, it is 8 ||to provide Plaintiffs with the opportunity to submit evidence in response.” (Doc. No. 816 9 || at 2.) Defendants further contend that “Plaintiffs also assert there are new legal arguments 10 |/in the reply but fail to identify any such arguments.” (/d. at 4.) Thus, Defendants ask the 11 || Court to deny Plaintiffs’ ex parte motion. (/d.) 12 By submitting on reply further evidence and arguments in support of their motion 13 ||for summary judgment, rather than merely responding to Plaintiffs’ opposition to the 14 motion, the Court finds Defendants have “deprived [Plaintiffs] of the opportunity to 15 ||respond.” Do v. Tri City Healthcare Dist., No.: 19¢v2253-MSB (NLS), 2020 WL 6484633, 16 *2 (S.D. Cal. Nov. 4, 2020). However, the Court does not find that a motion to strike 17 || would best serve the purpose of completing the record. Thus, as to the new evidence raised 18 |/in Defendants’ Reply, the Court ORDERS Defendants to produce the new evidence by 19 || March 3, 2025. The Court further GRANTS IN PART Plaintiffs’ ex parte application to 20 || file a sur-reply to give Plaintiffs an opportunity to respond to Defendants’ new evidence. 21 Plaintiffs may also include objections for inadmissible or improper declarations and 22 || evidence under the Federal Rules of Evidence. Plaintiffs’ sur-reply shall be no more than 23 || eight (8) pages in length, and it shall be filed on or before March 10, 2025. Defendants 24 || may file a responsive brief to Plaintiffs’ objections to evidence by March 17, 2025. 25 IT IS SO ORDERED. 26 || Dated: February 24, 2025 © 27 Hon, Anthony J.Battaglia 28 United States District Judge