Player v.
Filed 5/2/13 Player v. County of Los Angeles CA@/2
OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
TYISHA
PLAYER et al.,
Plaintiffs,
v.
COUNTY OF LOS ANGELES,
Defendant;
RICKEY
IVIE et al.,
Objectors
and Appellants.
B238297
(Los Angeles County
Super. Ct. No. BC435513)
APPEAL from an order of the Superior Court of
County. Richard L.
Fruin, Jr., Judge. Affirmed.
Ivie, McNeill & Wyatt, Rickey
Ivie, Robert H. McNeill, and Davida M. Frieman for Objectors and Appellants.
This appeal concerns an order
imposing monetary sanctions under Code of Civil Procedure section 177.5 in the
amounts of $1,100 and $1,500 on counsel for the defendant in a
Frieman (Frieman) violated an in limine order excluding all evidence of the
decedent’s arrests, convictions, and incarcerations without first obtaining the
court’s approval, and that Frieman’s supervising attorney, Rickey Ivie (Ivie),
knowingly violated the order.
The record discloses no abuse of
discretion by the trial court. We
therefore affirm the monetary sanctions
order.
The in limine order
Appellants Frieman and Ivie were the
attorneys of record for the County of Los Angeles in an underlying wrongful death action brought by the spouse and
children of decedent Woodrow Wilson Player (Player). Player was shot and killed by
Los Angeles County Sherriff’s Department deputies while attempting to flee
during a felony stop following a 911 call from Player’s former girlfriend that
he had pointed a gun at her and threatened to kill her.
The plaintiffs in the underlying
case filed a motion in limine seeking to exclude evidence concerning any of
Player’s arrests or criminal convictions.
On September
13, 2011, the trial court issued its
tentative ruling excluding all such evidence without prior court approval. The tentative ruling provides in relevant
part:
“Information that Player was on
parole is relevant, if a condition of the parole was that he not be in
possession of firearms. The fact that he
might have been charged with domestic violence is relevant, but even if such a
charge was not filed or sustained Player’s carrying of a firearm may have
violated parole and resulted in a return to jail/prison. Incarcerations, including potential
incarcerations, are relevant to Player’s availability to provide comfort,
support and companionship to plaintiffs.
Convictions probably should be limited to those that support the
likelihood of lengthy incarceration for parole violation or for armed assault
or domestic violence (if charged and convicted).â€
“Defendants are to advise the
court at the hearing of precisely what arrests, convictions and/or
incarcerations of Player they intend to put into evidence (through what
witness, what documents). The court
will exclude all such evidence until defendants advise the court what evidence
will be offered and to [sic] court allows
the evidence.†(Original bolding.)
The trial court
adopted its tentative ruling as its final written ruling, which it issued to
counsel on September
15, 2011.
Ivie’s opening statement
The trial commenced with the
parties’ opening statements on September 20, 2011. As of that date, Ivie and Frieman had not
advised the trial court of the precise arrests, convictions or incarcerations
of Player they intended to put into evidence, and the trial court accordingly
had not allowed any such evidence. During
Ivie’s opening statement, Ivie stated that “Mr. Player’s arrest record extends
from the time he was 12 years old. It
includes such offenses as robbery.â€
Plaintiffs’ counsel objected, and the trial court sustained the
objections based on the in limine order.
Later that same day, the following
exchange occurred outside the presence of the jury:
“THE COURT: [W]e talked last Friday about the arrest
history. We were going to have an
agreement on what history could be put into evidence, and you were going to
make an offer as to what you wanted to put into evidence. Today in your opening statement you went back
to his first arrest as a juvenile at age 12.
What is the list that you’re going to want to put into evidence? I don’t want the entire list. I want the reduced list that might be
pertinent to the issues.
“MR. IVIE: I have the -- his arrest record.
“THE COURT: I’m sorry.
I have his arrest record --
“MR. IVIE: Right.
“THE COURT: -- In one of the motions in limine. The question is --
“MR. IVIE: Which ones are relevant?
“THE COURT: -- Which ones are relevant? You were going to offer me a list, and I
haven’t seen the list. I have other
things to do, so it kind of slips out of my mind, but now that I’m reminded
about it by the opening statements. I
want to know what’s going to happen. So
I’m putting that on my list, too, so we’ll talk about that later.â€
Frieman’s cross-examination
The case proceeded to the
plaintiffs’ case-in-chief, during which plaintiffs’ counsel elicited testimony
concerning Player’s incarceration from Latoria Williams, the mother of Player’s
child, Justin.
“[PLAINTIFFS’ COUNSEL]: And
when Justin was born, was Mr. Player present?
“[WILLIAMS]: No.
“[COUNSEL]: [W]here was Mr. Player at that time?
“[WILLIAMS]: He was in jail.
“[¶] . . . [¶]
“[COUNSEL]: All right.
And later on in 2006, did you learn that Mr. Player had returned to
jail?
“[WILLIAMS]: Yes.
“[COUNSEL]: And how much time was it from the time Mr.
Player first saw Justin until the time he had to go back again to prison?
“[WILLIAMS]: I’m not sure if it was two weeks or a month
or two, but it was -- he was only out for a short while.
“[¶] . . . [¶]
“[COUNSEL]: All right.
And then at some time Mr. Player went back into custody; correct?
“[WILLIAMS]: Yes.
“[COUNSEL]: And then at some point he was released?
“[WILLIAMS]: Yes.
“[¶] . . . [¶]
“[COUNSEL]: All right.
And incidentally, for that year while Mr. Player was in prison, would
you visit him with Justin?
“[WILLIAMS]: Yes.â€
During Frieman’s subsequent
cross-examination of Williams, the following exchange took place:
“[FRIEMAN]: And do you know
why Mr. Player went back to jail?â€
Plaintiffs’
objection on the ground of relevance was overruled.
“[WILLIAMS]: You asked what -- what he got out of jail
for?
“[FRIEMAN]: Correct.
“[WILLIAMS]: The last time?
“[FRIEMAN]: Correct.
“[WILLIAMS]: For murder.â€
Plaintiffs’ counsel requested a
sidebar conference during which they requested that Williams’s testimony be
stricken. The following exchange
occurred outside the presence of the jury:
“[THE COURT]: Why were you
eliciting this testimony?
“[FRIEMAN]: Umm, I simply
inquired if she knew why he had gotten out of jail, what he was in jail
for. This will be pertinent a little bit
later --
“[THE COURT]: Look, the
question is he wasn’t convicted of the charge for which he was in jail at that
point in time. Now I don’t know the
sequence of all the charges, but you do.
And we decided beforehand that we weren’t going to introduce evidence of
any charge other than where there was a conviction. You’ve introduced subject matter in this
trial which is inappropriate and you knew it was inappropriate. I expect you to control your questions so
that you’re not going to elicit from this lay witness something the jury
shouldn’t hear. Was this deliberate?
“[FRIEMAN]: No. This was actually something that was going to
come up when I spoke to Ms. Tyisha Player, because it has to do with their
marriage and --
“[THE COURT]: The point is
although he was arrested and although he was in jail awaiting trial and during
trial, he wasn’t convicted of that particular charge. I’m told that’s the case. Is that correct?
“[FRIEMAN]: Yes. He was not convicted.
“[THE COURT]: And you’ve
known this; is that correct?
“[FRIEMAN]: Yes, I knew he
was not convicted.â€
The trial court
declined a request by plaintiffs’ counsel to instruct the jury that Frieman had
engaged in a deliberate act of misconduct,
stating: “Well, I don’t know whether it
was a deliberate act of misconduct or simply a lack of thought about what the
witness was likely to say. This is
cross-examination. It’s not Ms. Frieman’s
witness. She has not been able to
prepare the witness to give the responses that she would expect.†The trial court ultimately instructed the
jury as follows: “Mr. Player was not
convicted of the charge of murder. The
question asked by Ms. Frieman was inappropriate. I will strike the answer given by Ms. Latoria
Williams, and you are not to consider what she has said in response to Ms.
Frieman’s question.†Trial of the
underlying case thereafter resumed.
The order to show cause (OSC) and sanctions order
On October 5, 2011, the trial court
issued an OSC re assessment of monetary sanctions against Frieman and
Ivie. The court’s OSC cited violation of
the court’s September 15, 2011 ruling on plaintiffs’ motion in limine excluding
evidence of Player’s arrests, convictions, and incarcerations unless approved
in advance by the court. The court
listed the following facts and circumstances justifying the OSC and supporting
the imposition of monetary sanctions:
Frieman, on September 22, 2011, using a written script for her
questions, elicited testimony during her cross-examination of Latoria Williams,
the mother of Player’s son, Justin, that Player was incarcerated on a murder
charge shortly after Justin was born; Frieman had actual knowledge that her
line of questioning would require Williams to reveal to the jury that Player was
in jail at that time awaiting trial on a murder charge; Frieman knew that
Player was acquitted of the murder charge and that the fact that he was charged
with murder was both inadmissible and prejudicial to plaintiffs’ case; Frieman
knew that defense counsel had not
provided to the court, as of that date, any list of the particular criminal
charges or convictions suffered by Player that defendants wished to place into
evidence; Ivie reviewed and approved Frieman’s scripted cross-examination
questions; and Ivie during his opening statement told the jury that Player was
arrested at the age of 12, in violation of the court’s in limine order.
Frieman and Ivie submitted
declarations in opposition to the OSC.
In his declaration, Ivie stated that he had reviewed the trial court’s
in limine order before giving his opening statement and concluded that he was
not precluded from mentioning Player’s juvenile arrests in his opening
statement. Ivie further stated that he
reviewed Frieman’s cross-examination outline; that the outline was intended to
be used during Frieman’s cross-examination of Tyisha Player; that the question
Frieman proposed “Do you know why decedent was in jail?†was intended to lay
the foundation for an argument that Tyisha Player knew Player would be
incarcerated for a long time and had rushed to marry him while he was
incarcerated so she could obtain conjugal visits with him; that Frieman had not
prepared an outline for cross-examination of Latoria Williams but used the
outline she had prepared for Tyisha Player’s cross-examination for that
purpose. Frieman’s declaration
reiterated the explanation given in Ivie’s declaration regarding her intent and
purpose in questioning Williams as to whether she knew why Player was
incarcerated.
Following a November 2011 hearing on
the OSC, the trial court issued its written findings and rulings. The trial court found that “Mr. Ivie as an
attorney of 35 years standing knows that counsel may not state in an opening statement
information that has been ruled inadmissible.
He says he scrutinized the in limine motion, the court’s order and CACI
instructions for guidance as to whether he nonetheless could mention decedent’s
arrests and convictions in his opening statement. However, inexplicably, he never sought
guidance from the court on that matter.â€
The court further found that Ivie knew that juvenile arrests are
inadmissible by statute (Evid. Code, § 1101), knew that inadmissible evidence
cannot be revealed to the jury, knew that the court’s order specifically
prohibited disclosure of Player’s criminal history unless first reviewed and
approved by the court, and nevertheless disclosed Player’s juvenile arrests in
his opening statement to the jury. The
trial court observed that defense counsel’s justification for the admission of
Player’s convictions was to support their argument that the claims by his wife
and children for loss of his love and society were diminished because Player
was incarcerated for most of his adult life.
That justification, the court noted, did not apply to Player’s juvenile
arrests, which occurred before he married and fathered children. The trial court therefore concluded that
Ivie’s intent was to prejudice the jury against Player with information Ivie
knew was inadmissible.
With regard to Frieman’s
cross-examination of Latoria Williams, the trial court found defense counsel’s
explanations to be implausible. The
court found that the questions Frieman planned to ask the witness were not relevant
to the defense theory that plaintiffs’ lengthy incarcerations diminished
plaintiffs’ damages because Frieman’s proposed questions concerned an arrest
relating to charges on which Player was subsequently acquitted. The trial court noted that at the hearing on
the OSC Frieman advanced a different argument as to why she had questioned
Williams about the reason for Player’s incarceration. At the hearing, Frieman told the court her
questions were relevant because they supported the defense argument that Tyisha
Player’s marriage to Player was a sham.
That argument, the trial court reasoned, was “tenable only if the
decedent was arrested for murder before the marriage occurred†but the record
indicated that the marriage preceded Player’s incarceration on the murder
charge. The court concluded that Frieman
had violated the court’s in limine order and that Ivie, who approved the
particular questions Frieman planned to ask and supervised her at trial, was
also responsible for the violation.
The trial court found that Ivie
knowingly violated its in limine order and assessed monetary sanctions against
him under Code of Civil Procedure section 177.5 in the mount of $1,500. The court further found that Frieman violated
the in limine order and assessed monetary sanctions against her in the amount
of $1,100. This appeal followed.
I. Applicable
law and standard of review
Code of Civil Procedure section
177.5 provides in relevant part: “A
judicial officer shall have the power to impose reasonable money sanctions, not
to exceed fifteen hundred dollars ($1,500), notwithstanding any other provision
of law, payable to the court, for any violation of a lawful court order by a
person, done without good cause or substantial justification. This power shall not apply to advocacy of
counsel before the court.†Imposition of
monetary sanctions for failing to obey a court order is within the discretion
of the trial court. (
1518, 1527.) “‘[A] trial court’s
exercise of discretion will not be disturbed unless the record establishes it
exceeded the bounds of reason or contravened the uncontradicted evidence
[citation], failed to follow proper procedure in reaching its decision
[citation], or applied the wrong legal standard to the determination
[citation].’ [Citation.]†(Conservatorship
of Becerra (2009) 175 Cal.App.4th 1474, 1482.)
II. Ivie’s
opening statement
Ivie contends his reference to Player’s juvenile arrest at the age
of 12 during his opening statement did not violate the in limine order, which
is limited to the introduction of evidence and does not mention opening
statements. His opening statement, Ivie
maintains, was not evidence.
The scope of the trial court’s in
limine order is not as narrowly defined as Ivie suggests. The order required defense counsel to advise
the trial court as to “precisely what arrests, convictions and/or
incarcerations of Player they intend to
put into evidence†and excluded all such evidence until they advised the court
as to “what evidence will be offered.†(Italics added.) Ivie’s opening statement to the jury was a
roadmap of the evidence he intended to offer at trial. “The purpose of an opening statement ‘is to
prepare the minds of the jury to follow the evidence and to more readily discern
its materiality, force and effect.’
[Citation.]†(
215, overruled on another ground in People
v. Morse (1964) 60 Cal.2d 631, 648-649 & fn. 2.) The terms of the order required him to seek
and obtain court approval before presenting the proposed evidence to the
jury. The absence of a specific
reference to opening statements does not render the order vague nor did it
immunize Ivie’s statements to the jury.
Ivie claims that his reference to
Player’s juvenile arrests during opening statement was not prejudicial to the
plaintiffs because plaintiffs’ counsel had already mentioned Player’s
incarceration for a drug-related
conviction. While the prejudicial
effect of Ivie’s statements may be relevant to the issue of whether a new trial
was warranted (see Cassim v. Allstate
Ins. Co. (2004) 33 Cal.4th 780, 800-802), it has no bearing on whether
Ivie’s conduct violated the court’s in limine order and warranted the
imposition of sanctions.
Ivie argues that the amount of
monetary sanctions assessed against him -- the statutory maximum of $1,500 --
“exceeds the bounds of reason†in light of the circumstances, given that the
trial court did not admonish him of any improper conduct during or after his
opening statement. That the trial court
chose not to highlight the impropriety
of Ivie’s remarks by interrupting his opening statement or by admonishing him
in the presence of the jury did not diminish the seriousness of Ivie’s
violation. That violation, combined with
Ivie’s involvement in Frieman’s violation of the order during her
cross-examination of a witness, was a sufficient basis for the trial court’s
imposition of the maximum monetary sanction.
The trial court’s imposition of that sanction was not an abuse of
discretion.
III. Frieman’s
cross-examination
Frieman contends she had substantial
justification for her violation of the in limine order and that the trial court
erroneously found that she intentionally or knowingly violated the order. The trial court did not find Frieman to have
knowingly violated the in limine order.
It simply found her to have violated the order: “The court finds Ms. Frieman violated the in
limine order.â€
name="_ftnref1" title="">[1]
The trial court considered and
rejected Frieman’s purported justification for the violation. Frieman’s justification for eliciting
testimony regarding the reason for Player’s most recent incarceration was to
demonstrate that the witness believed Player would be incarcerated for a long
time, thereby diminishing the plaintiffs’ claims for damages for the loss of
Player’s love, comfort, and companionship.
Frieman knew, however, that the incarceration that was the subject of
her inquiry was for a murder charge on which Player was ultimately acquitted.
There is substantial evidence in the
record to support the trial court’s factual findings on the imposition of
sanctions. (West Coast Development v. Reed (1992) 2 Cal.App.4th 693, 697-698
[where a party challenges the factual underpinnings of a trial court’s ruling,
the appellate court reviews the record for substantial evidence to support the
court’s express or implied findings].)
The record discloses no abuse of discretion in either the imposition or
in the amount of monetary sanctions.
The order imposing monetary
sanctions is affirmed.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS.
___________________________,
J.
CHAVEZ
We concur:
______________________________, P. J.
BOREN
______________________________, J.
ASHMANN-GERST
name="_ftn1" title="">[1] In contrast, the trial court did find Ivie to have
knowingly violated the order: “The court
finds Mr. Rickey Ivie knowingly violated the court’s in limine order.â€
