Kirkpatrick v. City of Oakland, California

Nature of the Order

The court issued an order following an April 28, 2022 pretrial conference. It addressed motions in limine, which are requests to limit or exclude evidence at trial, along with discovery, trial, jury-selection, and briefing matters. The order did not decide the ultimate merits of Kirkpatrick’s claims.

Legal Framework for the Claims

For Kirkpatrick’s California Labor Code section 1102.5(b) retaliation claim, the court stated that she must prove by a preponderance of the evidence that retaliation for protected activity was a contributing factor in her termination. If she does so, the City must show by clear and convincing evidence that it would have taken the same action for legitimate, independent reasons even without the protected activity.

For Kirkpatrick’s First Amendment claim, the relevant question is whether her speech was a substantial or motivating factor in the adverse employment action. The court also stated that evidence unknown to the Police Commission or Mayor before the termination decision might still be relevant to damages, an issue the court planned to address separately.

Kirkpatrick’s Motions

The court granted Kirkpatrick’s first motion, concerning evidence and testimony about Robert Warshaw, to the extent it sought to exclude evidence that the Police Commissioners or Mayor did not know about before deciding to terminate her. Exhibits B and C were excluded. The court stated that Kirkpatrick could open the door to those exhibits by denying that she believed Mr. Warshaw played a role in her termination.

The City did not intend to offer Exhibit I. The court excluded Exhibit D except for its first two paragraphs and excluded Exhibit E except as to damages. The court noted that related exhibits might also be relevant to damages and directed the parties to consider whether damages should be phased.

The court denied Kirkpatrick’s second motion, which sought to exclude evidence and testimony concerning the City’s Chief of Police job posting. The court found that the posting was one piece of evidence about the scope of the Chief’s job duties and was not equivalent to the broad, generic job description discussed in Garcetti v. Ceballos.

Kirkpatrick also sought to exclude Brendon Woods because the City had not identified him in its amended disclosures or timely described his proposed testimony. The court directed that, if the City still intended to call Woods, it must provide Kirkpatrick and file an offer of proof by May 11, 2022. The order did not state a final disposition of that request.

The City’s Motions

The court granted the City’s first motion, which sought to exclude testimony from Mr. Finnell and evidence concerning the termination of Mr. Alden. The court found that admitting this evidence would require a separate trial about whether those individuals were terminated for retaliation or performance-related reasons. It also found that evidence about Mr. Alden’s termination did not provide relevant circumstantial evidence of retaliatory motive because the Police Commission members who supported his termination were not on the Commission when Kirkpatrick was terminated.

The court granted the City’s second motion without prejudice to Kirkpatrick making an offer of proof. The motion concerned testimony from Nancy O’Malley, Bobby Hookfin, Eric Milina, Sekou Millington, and Bishop Bob Jackson about Kirkpatrick’s job performance. The court stated that such testimony was relevant only if it concerned information the Mayor or Police Commissioners knew before the termination decision. Any offer of proof had to be shared with the City and filed by May 11, 2022. The court specifically stated that O’Malley’s testimony about Kirkpatrick’s handling of the Pawlik shooting would be relevant only if O’Malley had shared her perceptions with the Mayor or Police Commissioners before the termination.

The court granted in part and denied in part the City’s third motion concerning the City Auditor’s audit report about the Oakland Police Commission and Community Police Review Agency and testimony from the City Auditor. The audit was not relevant to Kirkpatrick’s section 1102.5(b) or First Amendment claims except for its finding that the Police Commission was required by municipal ordinance to conduct a performance review of the Chief of Police but did not do so. The court allowed the Auditor to testify about Measure LL’s evaluation requirement, her evaluation, the finding that the Commission did not evaluate the Chief as required, her receipt and handling of Kirkpatrick’s complaints, and the Police Commission’s function and structure.

The court denied without prejudice the City’s fourth motion concerning testimony from Allison Dibley and Stephanie Hom because Kirkpatrick stated that she did not intend to call either person. The City could renew the motion if Kirkpatrick called either witness.

Other Pretrial Rulings

The court declined to reopen discovery for additional depositions or discovery about the School Incident and declined to exclude evidence of that incident. For the First Amendment claim, the court ruled that the City had not waived its ability to present a defense under the balancing test from Pickering v. Board of Education. The court stated that, based on the information then before it, the Mayor and Police Commission jointly decided to terminate Kirkpatrick for purposes of municipal liability under Monell.

The court ordered briefing on whether Kirkpatrick’s speech involved a matter of public concern and whether she had to identify the allegedly violated law or rule as part of her main trial presentation. It also addressed jury questionnaires, the number of jurors, trial hours, examination time, opening statements, and a further pretrial conference scheduled for May 12, 2022. The order disposed of Docket Nos. 112, 113, 116, 117, 118, 119, 136, and 137.

Disposition and Effect

This was a pretrial evidentiary and case-management order. It granted, denied, granted in part and denied in part, or denied without prejudice the specified motions as described above, while leaving the underlying retaliation claims for trial. Judge Corley did not enter a final merits ruling on those claims.