Joseph Padgett v. A. Wright

MEMORANDUM

The parties appeal numerous pre- and post-trial orders of the district court. Because the parties are familiar with the facts of this case, we do not repeat them. This Memorandum addresses issues raised in the appeal, Docket No. 10-15494, and cross-appeal, Docket No. 10-15514. A separately filed opinion, Docket No. 10-16533, addresses attorney’s fees and costs.

1. Motion to Strike

The motion to strike SER Pages 5702, 5703, and 5704 is granted because the Pad-getts have not demonstrated that the audio recordings were before the district court. See Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1077 (9th Cir.1988) (considering only evidence before the district court at time it made the decision being reviewed). The motion to strike the trial testimony is denied because the testimony could be properly considered in reviewing the district court’s ruling on the post-trial motions.

2. Motion for Summary Judgment by City Council Defendants

The Padgetts cite trial testimony in support of their argument on summary judgment. Because the district court granted summary judgment well before trial, it could not have considered this testimony. We do not consider such evidence…