Gonzales v. City of Lake Havasu City

          ORDER

          G. Murray Snow Chief United States District Judge.

         Pending before the Court are Defendant City of Lake Havasu City (“Defendant”)'s Motion for Summary Judgment (Doc. 123) and Plaintiff Tom Gonzales (“Plaintiff”)'s Motion to Strike (Doc. 137).

         Also pending are Plaintiff's Motion to Preclude the Testimony of Defendant's Expert Witness Andrew Pacheco (Doc. 113) and Defendant's Motion to Exclude Plaintiff's Expert Lauren Freeman and Motion to Exclude Dr. Brady Wilson's Credibility Opinion (Doc. 119). For the following reasons, the Court grants Defendant's Motion for Summary Judgment, denies Plaintiff's Motion to Strike, and terminates the remaining motions as moot.^[1]

         BACKGROUND

         On February 27, 2016, officers of the Lake Havasu City Police Department responded to a report by Plaintiff's wife, Mayra Gonzales, that Plaintiff had assaulted her and attempted to prevent her from calling the police. Plaintiff was subsequently charged with assault, disorderly conduct, and preventing the use of a telephone in an emergency. On March 16, 2016, Ms. Gonzales provided the Lake Havasu City prosecutor, Kristen Rienfeld, with an unsigned retraction letter in which she recanted her prior statements regarding the events of February 27, 2016. In the letter, Ms. Gonzales claimed that she was not the victim of any violence and did not want to pursue any legal action against Plaintiff. Ms. Gonzales submitted a second letter to the same effect on June 8, 2016. The second letter was signed and notarized. Plaintiff's case proceeded to a bench trial on June 13, 2016. Ms. Rienfeld did not call Ms. Gonzales to testify, and instead presented only testimony from the officers who responded to the Gonzales's home on the night of the incident. Plaintiff was convicted on July 27, 2016.

         The following day, Ms. Rienfeld filed charges against Ms. Gonzales for making false statements to the police on the night of the incident. This prompted Plaintiff to file a Motion for New Trial. In the motion, Plaintiff argued that Ms. Rienfeld's failure to inform Plaintiff that Ms. Gonzales was charged with false statements amounted to prosecutorial misconduct and Brady violations. Plaintiff accused Ms. Rienfeld of charging him while at the same time believing Ms. Gonzales lied about the allegations for which he was convicted. Plaintiff's direct supervisor, Charles Yager, City Prosecutor, answered Plaintiff's Motion for New Trial because Ms. Rienfeld was on vacation. However, that was the extent of his involvement in the case. Before Plaintiff was sentenced, the court held oral argument on the Motion for New Trial and the presiding judge dismissed Plaintiff's charges with prejudice “in the interest of justice.” The court, however, declined to find prosecutorial misconduct or Brady violations.

         In October 2017, Plaintiff brought this suit against Defendant and Ms. Rienfeld in her individual capacity under 42 U.S.C. § 1983 for alleged violations of his Fifth, Sixth, and Fourteenth Amendment rights. Plaintiff's original complaint also included claims for malicious prosecution and abuse of process. On January 22, 2018, Defendant and Ms. Rienfeld filed a Motion for Judgment on the Pleadings. The Court dismissed with prejudice all claims against Ms. Rienfeld, finding that she was entitled to the defense of absolute immunity. The Court also dismissed the malicious prosecution and abuse of process claims against Defendant, but granted Plaintiff leave to amend the complaint to make clear “whether the claim is brought under 42 U.S.C. § 1983 or as a standalone state-law tort claim.” (Doc. 42 at 9.) Finally, the Court denied the Motion as to the 42 U.S.C. § 1983 claim against Defendant, finding that Plaintiff's allegations were sufficient to state a claim under Monell v. New York City Department of Social Services, 436 U.S. 658 (1978). On July 20, 2018, Plaintiff timely filed an Amended Complaint. The Amended Complaint maintained three causes of action against Defendant: (1) a Monell claim under § 1983 for violations of Plaintiff's Fifth, Sixth, and Fourteenth Amendment rights; (2) malicious prosecution under § 1983; and (3) abuse of process under § 1983. Additionally, Plaintiff alleged Arizona common law malicious prosecution and Arizona common law abuse of process. Defendant filed a Second Motion for Judgment on the Pleadings. The Court found that Plaintiff plausibly alleged a § 1983 claim against the City for alleged violations of his Fifth, Sixth, and Fourteenth Amendment rights and for malicious prosecution under § 1983 and Arizona state law. The Court dismissed Plaintiff's federal claim for abuse of process but found that he had stated a claim under Arizona law. Defendant now brings this motion for summary judgment on the remaining claims. Plaintiff opposes Defendant's motion and moves to strike certain exhibits and witnesses relied upon by Defendant in its Motion for Summary Judgment.

         DISCUSSION

         I. Plaintiff's Motion to Strike

         Plaintiff moves to strike Defendant's Exhibits 11, 17, 18, and 20. Defendant withdraws, for purposes of this motion only, Exhibits 11, 18, and 20.^[2] Thus, Exhibit 17- the declaration of Ms. Kelly Garry, City Attorney-is the only exhibit in dispute. Defendant seeks to use Ms. Garry's declaration, among other evidence, to demonstrate that Ms. Garry, not Mr. Yager, has “final policymaking authority” for purposes of refuting Plaintiff's Monell claim. Plaintiff argues that Defendant did not disclose Ms. Garry as a fact witness until its Tenth Supplemental Mandatory Discovery Response (“10th MIDR”) on Friday, July 12, 2019-three days before the close of discovery. Plaintiff further claims that the disclosure was sent to Plaintiff by mail and was not received until after the close of discovery. Thus, Plaintiff moves to strike the declaration testimony as untimely.

         Federal Rule of Civil Procedure 26 requires parties to provide opposing parties “the name . . . of each individual likely have discoverable information-along with the subjects of that information-that the disclosing party may use to support its claims or defenses.” Fed.R.Civ.P. 26(a)(1)(A)(i). Rule 26(e) requires parties to supplement those disclosures “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Fed.R.Civ.P. 26(e)(1)(A). Rule 37(c)(1) states that “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” The party facing sanctions has the burden to show that the failure to disclose was substantially justified or harmless. Torres v. City of Los Angeles, 548 F.3d 1197, 1213 (9th Cir. 2008).

         In its November 19, 2018 response to Plaintiff's Request for Admission Defendant sufficiently identified Ms. Garry as having supervisory policymaking authority over Mr. Yager for purposes of imposing liability under § 1983. Plaintiff had requested an admission that “the Lake Havasu City Prosecutor does in fact have final decision-making authority regarding criminal prosecutions conducted by either the Lake Havasu City Attorney, the Lake Havasu City Prosecutor, or the Lake Havasu Assistant Prosecutor, ” (Doc. 141-1 at 5-6), to which Defendant responded,

The Lake Havasu City Attorney's Office has only two prosecutors, Charles Yager and Kristin Rienfeld. Charles Yager supervises Ms. Rienfeld. Kelly Garry, the Lake Havasu City Attorney, supervises Mr. Yager. The City denies that Mr. Yager is a “final” decision-maker, for purposes of imposing liability on the City under §1983, because although Ms. Garry does not typically exercise her authority to override prosecutorial decisions made by either Mr. Yager or Ms. Rienfeld, she is Mr. Yager's direct supervisor.

(Doc 141-1 at 6.) Defendant also provides excerpts from Mr. Yager's June 2019 deposition that further detail Ms. Garry's authority over Mr. Yager.^[3] Pursuant to Rule 26(e) and General Order 17-08, new information revealed in a written discovery response or deposition in a manner that reasonably informs all parties of the information need not be presented in a supplemental response. See Fed. R. Civ. P. 26(e) (“A party . . . must supplement or correct its disclosure or response . . . if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing . . . .”); AZ R USDCT Order 17-08 (“If new information is revealed in a written discovery response or a deposition in a manner that reasonably informs all parties of the information, the information need not be presented in a supplemental response.”). This is sufficient pre-disclosure such that the final supplemental disclosure was not unfair to the Plaintiff and will not be excluded. Plaintiff had previously learned of Ms. Garry's identity during discovery and had ample opportunity to pursue follow up discovery with her if he so chose.

         Plaintiff argues that he relied on Defendant's previous contention that Mr. Yager was the City Attorney and that Lake Havasu City Council was the final decision maker. Defendant, however, made these assertions prior to the November 19, 2018 written discovery response and June 2019 depositions. Thus, Plaintiff was made aware of Defendant's present theory that Ms. Garry is the final policymaker through the discovery process. Plaintiff was put on notice long before the close of discovery that Ms. Garry may have discoverable information. The Court declines to strike Ms. Garry's declaration because it contains facts timely disclosed and any delayed disclosure of Ms. Garry as a witness was harmless.

         II. Defendant's Motion ...