Kyle Zoellner v. Eric Losey

Background

After a September 15, 2022 pretrial conference, the court finalized rulings on the parties’ motions in limine—requests to admit or exclude evidence before trial—and resolved other trial-related matters. The remaining central claim identified in the order was Zoellner’s malicious-prosecution claim against Detective Eric Losey. The court also noted that other claims had been resolved on summary judgment or were bifurcated and stayed, but this order did not revisit those rulings.

The court stated that criminal charges against Zoellner had been dismissed for lack of probable cause and that no new formal charges had been filed. It therefore held that the relevant period for the malicious-prosecution claim was approximately the three weeks between the filing and dismissal of the charges. The court explained that probable cause and malice would be measured by what Losey knew and intended when he allegedly caused the charges to be filed or continued.

Plaintiff’s motions in limine

• Motion No. 2 was denied. Losey was not barred from challenging the state-court judge’s finding of no probable cause after the preliminary hearing. Applying California law, the court concluded that Losey was not in a legally sufficient relationship with the District Attorney’s Office to be bound by that finding. The court explained that it would decide whether the facts known to Losey constituted probable cause, while the jury would resolve disputes about what facts existed and what Losey knew.

The court ordered Losey to file an offer of proof listing the facts he contended established probable cause, with supporting exhibit or witness citations. Zoellner was ordered to respond by identifying factual disputes and additional facts he believed showed a lack of probable cause. The court stated that it might hold another pretrial conference if the submissions showed no genuine material factual dispute.

• Motion No. 1 was granted. The court excluded Losey’s expert Brian Medeiros’s report because it gave an opinion on the legal question of whether probable cause existed.

• Motion No. 3 was denied. The court found a genuine dispute about whether Losey made a mistake and treated that issue as a jury question.

• Motion No. 4 was granted as to evidence concerning traffic violations, juvenile records, and misdemeanor records. It was also granted as to evidence that Zoellner remained a suspect in the homicide. The court found that this later information was irrelevant to Losey’s knowledge and state of mind when the charges were initiated or continued. The ruling did not prevent Losey from presenting evidence that he understood Zoellner was the sole suspect when the charges were filed and prosecuted.

• Motion No. 5 was denied. Evidence about what Losey knew when he allegedly caused the charges to be filed was relevant to probable cause and malice. The court excluded the listed DNA evidence because Losey had not established its relevance and had no qualified DNA witness on his witness list. The court declined to exclude all evidence of which Losey was unaware, explaining that some such evidence might be relevant to Zoellner’s damages depending on how the evidence was presented and how Zoellner argued his emotional-distress damages.

Defendant’s motions in limine

• Motion No. 1 was denied because Zoellner had identified his damages categories and Losey had examined those categories during Zoellner’s deposition.

• Motion No. 2 was denied. The court had already explained the scope of relevant evidence and found that Losey had not shown that Zoellner refused to answer deposition questions.

• Motion No. 3 was granted. Zoellner could mention people involved in the case but could not identify those people as defendants.

• Motion No. 4 was granted. The court excluded evidence about prior incidents involving Losey and his supervisors because the evidence did not show the absence of mistake and, to the extent it had limited relevance, was outweighed by the risk of confusing the jury.

• Motion No. 5 was granted as to defense and indemnification and denied as to Losey’s personal financial condition. The court planned to divide the punitive-damages issue into phases: evidence relevant only to the amount of punitive damages would be excluded from the first phase but allowed in a second phase if the jury first found that punitive damages were warranted.

Other pretrial rulings

The court found that evidence about the grand jury’s later decision not to indict Zoellner was irrelevant because the court, not the grand jury, would decide whether Losey had probable cause in 2017. It sustained Losey’s objection to the trial subpoena and quashed the subpoena as to documents because Zoellner could have obtained them during fact discovery. The court required Losey’s counsel to confirm that reports within the scope of Zoellner’s discovery request had been produced. It also excluded Zoellner’s expert Christopher W. Boyd’s report because it was offered only to rebut Medeiros’s report, which the court had excluded.

The order also ruled on witness objections and exhibit admissibility, including excluding various reports, recordings, photographs, and other documents while allowing other listed materials subject to stated limitations. It set trial hours, time limits for each side, procedures for exchanging witness and exhibit information, jury-selection procedures, and the process for preparing and objecting to jury instructions. The court stated that its rulings could be reconsidered as the evidence and arguments developed at trial. The order disposed of the listed docket numbers but did not enter a merits judgment on the malicious-prosecution claim.