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Mark Hooshmand, Esq. (SBN 194878)
Tyson Redenbarger, Esq. (SBN 294424)
Jenny Jin, Esq. (SBN 296184)
Hooshmand Law Group
22 Battery St., Ste. 610
San Francisco, CA 94111
Tel: (415) 318-5709
Fax: (415) 376-5897
ELECTRONICALLY
FILED
Superior Court of Catifornia,
County of San Francisco
11/14/2017
Clerk of the Court
BY: SANDRA SCHIRO
Deputy Clerk
Attorneys for Plaintiffs Angelique Rochelle, individually
and as Guardian ad litem of Ella Lawton and Leona Paslay and
Baz Rochelle individually
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO - UNLIMITED CIVL JURSIDICTION
ANGELIQUE ROCHELLE, individually
and as Guardian ad litem of ELLA
LAWTON and LEONA PASLAY and BAZ
ROCHELLE individually
Plaintiffs,
vs.
TREVOR DENG, MAY DENG, YU TAO
TAN and DOES 1 TO 10,
Defendants.
CASENO.: CGC-16-555761
NOTICE OF MOTION AND MOTION IN
LIMINE NO. 2 OF PLAINTIFFS TO
EXCLUDE ALL EVIDENCE WITHHELD
FROM DISCOVERY BY DEFENDANTS
Date: November 13, 2017
Time: 9:30 am
Dept: 206
NOTICE OF MOTION AND MOTION IN LIMINE NO. 2 OF PLAINTIFFS TO EXCLUDE
ALL EVIDENCE WITHHELD FROM DISCOVERY BY DEFENDANTS
NOTICE OF MOTION AND MOTION IN LIMINE NO. 2 OF PLAINTIFFS TO EXCLUDE ALL EVIDENCE WITHHELD
FROM DISCOVERY BY DEFENDANTS 1To Defendants Trevor Deng, May Deng, and Yu Yao Tan, and Defendants' counsel of
record:
PLEASE TAKE NOTICE that on November 13, 2017, at 9:30 a.m., or as soon thereafter as
the matter may be heard in Department 206 of the Superior Court of California, County of San
Francisco, located at 400 McAllister Street, San Francisco, CA 94102, Plaintiffs’ motion in limine
no. 2 will be heard.
The Motion is based on the files in these matters and this Motion in Limine, and evidence
to be presented at the hearing of Plaintiff's motion.
The grounds on which this motion is made are that Defendants should not be able to intro-
duce any witnesses or evidence that were withheld during the discovery phase.
Date: November 8, 2017 Respectfully submitted,
HOOSHMAND LAW GROUP
Jenny Jin, Esq.
Attorney for Plaintiffs
NOTICE OF MOTION AND MOTION IN LIMINE NO. 2 OF PLAINTIFFS TO EXCLUDE ALL EVIDENCE WITHHELD
FROM DISCOVERY BY DEFENDANTS 2I. INTRODUCTION
In the matter of Rochelle, et al. v. Deng, et al., CGC-16-555761, Plaintiffs move to
preclude Defendants from attempting to introduce any and all evidence that was not properly
identified or produced during the discovery phase and to preclude all witnesses that Defendants
refused to produce or did not timely produce during discovery.
Il. STATEMENT OF FACTS
Plaintiffs are former tenants of a rent-controlled unit located at 778 25" Avenue, San
Francisco, California (“Subject Premises”). Plaintiff Angelique Rochelle moved into the Subject
Premises in November 2003, and had resided there with her three children, Plaintiffs Baz
Rochelle, Ella Lawton, and Leona Paslay, until July 2014. Defendants Trevor Deng and May
Deng purchased the building in or around July 2013, and moved into the upstairs unit of the
subject building shortly after.
On June 13, 2014, Defendants served Plaintiffs with a relative move-in (“RMI”) eviction,
and represented to Plaintiffs that Trevor Deng's mother, Defendant Tan, would be moving into the
Subject Premises. Based on this representation, Plaintiffs agreed to a move out date, and were
displaced from the Subject Premises in July 2014. Plaintiff Angelique Rochelle moved to a
smaller unit in Oakland, and as a result, was no longer able to live with all three of her children.
In late 2016, Plaintiff Rochelle discovered that Defendant Tan had not in fact moved into
the Subject Premises, and that Defendants had renovated and re-rented the Subject Premises for a
significantly higher rent amount.
Ill. LEGAL ARGUMENT
A. All Such Witnesses and Evidence Not Previously Produced in Discovery by Defendants
Must be Excluded from Trial in Order to Protect Against Substantial Prejudice
Code of Civil Procedure section 2023(b) provides for the exclusion of evidence not
produced in response to a proper discovery request:
“The court, after notice to any affected party, person, or attorneys, and after opportunity
for hearing, may impose the following sanctions against anyone engaging in conduct that is a
misuse of the discovery process.
NOTICE OF MOTION AND MOTION IN LIMINE NO, 2 OF PLAINTIFFS TO EXCLUDE ALL EVIDENCE WITHHELD
FROM DISCOVERY BY DEFENDANTS 327
28
(b) The court may impose an evidence sanction by an order prohibiting any party
engaging in the misuse of the discovery process from introducing designated matters in
evidence.”
It is unfair and contrary to the principles of discovery to allow the introduction of hidden
or withheld documents and materials that support a Plaintiffs claim. Such conduct is
specifically disapproved and considered an abuse of the discovery process under Code Civ.
Proc. § 2023, subd. (a)(1) to (8).
Defendants may be prevented from using such materials at trial. (In re Marriage of
Hoffmeister (1984) 161 Cal.App.3d 1163, 1171.) The reason for this approach is clear. Plaintiffs
would be substantially prejudiced if Defendants were allowed to introduce any evidence at trial
that was not introduced during the discovery stage of litigation.
There is ample legal authority supporting this approach. The court has the power to bar
the use at trial of evidence previously withheld by a party at a deposition on the basis of
attorney-client privilege. In Re Marriage of Hoffmeister, supra, at p. 1171. Underlying this rule
is the policy that litigants should not be permitted to "blow hot and cold" by claiming the
privilege during discovery and then waiving it at trial, because such a strategy subjects the
opposing party to unwarranted surprise. )A & M Records, Inc. v. Heilman (1977) 75 Cal.App.3d
554, 566, 142 Cal.Rptr. 390.)
Here, Defendants should be precluded from introducing at trial any and all evidence,
including witness testimony, that Defendants did not produce during the discovery phase.
Specifically, Defendants should be precluded from introducing at trial any communications
with one another, photographs, or emails or texts with Plaintiffs, that were not produced during
the course of discovery.
IV. CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that the court grant this motion in
its entirety to exclude Defendants from introducing any evidence, facts, documents, and witnesses
not previously disclosed to Plaintiffs in discovery.
NOTICE OF MOTION AND MOTION IN LIMINE NO, 2 OF PLAINTIFFS TO EXCLUDE ALL EVIDENCE WITHHELD
FROM DISCOVERY BY DEFENDANTS 4Dated: November 8, 2017 Respectfully Submitted,
HOOSHMAND LAW GROUP
Jenny Jin,
Attorney for Plaintiffs
NOTICE OF MOTION AND MOTION IN LIMINE NO. 2 OF PLAINTIFFS TO EXCLUDE ALL EVIDENCE WITHHELD
FROM DISCOVERY BY DEFENDANTS 5
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Mark Hooshmand, Esq. (SBN 194878) Tyson Redenbarger, Esq. (SBN 294424) Jenny Jin, Esq. (SBN 296184) Hooshmand Law Group 22 Battery St., Ste. 610 San Francisco, CA 94111 Tel: (415) 318-5709 Fax: (415) 376-5897 ELECTRONICALLY FILED Superior Court of Catifornia, County of San Francisco 11/14/2017 Clerk of the Court BY: SANDRA SCHIRO Deputy Clerk Attorneys for Plaintiffs Angelique Rochelle, individually and as Guardian ad litem of Ella Lawton and Leona Paslay and Baz Rochelle individually SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO - UNLIMITED CIVL JURSIDICTION ANGELIQUE ROCHELLE, individually and as Guardian ad litem of ELLA LAWTON and LEONA PASLAY and BAZ ROCHELLE individually Plaintiffs, vs. TREVOR DENG, MAY DENG, YU TAO TAN and DOES 1 TO 10, Defendants. CASENO.: CGC-16-555761 NOTICE OF MOTION AND MOTION IN LIMINE NO. 2 OF PLAINTIFFS TO EXCLUDE ALL EVIDENCE WITHHELD FROM DISCOVERY BY DEFENDANTS Date: November 13, 2017 Time: 9:30 am Dept: 206 NOTICE OF MOTION AND MOTION IN LIMINE NO. 2 OF PLAINTIFFS TO EXCLUDE ALL EVIDENCE WITHHELD FROM DISCOVERY BY DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NO. 2 OF PLAINTIFFS TO EXCLUDE ALL EVIDENCE WITHHELD FROM DISCOVERY BY DEFENDANTS 1To Defendants Trevor Deng, May Deng, and Yu Yao Tan, and Defendants' counsel of record: PLEASE TAKE NOTICE that on November 13, 2017, at 9:30 a.m., or as soon thereafter as the matter may be heard in Department 206 of the Superior Court of California, County of San Francisco, located at 400 McAllister Street, San Francisco, CA 94102, Plaintiffs’ motion in limine no. 2 will be heard. The Motion is based on the files in these matters and this Motion in Limine, and evidence to be presented at the hearing of Plaintiff's motion. The grounds on which this motion is made are that Defendants should not be able to intro- duce any witnesses or evidence that were withheld during the discovery phase. Date: November 8, 2017 Respectfully submitted, HOOSHMAND LAW GROUP Jenny Jin, Esq. Attorney for Plaintiffs NOTICE OF MOTION AND MOTION IN LIMINE NO. 2 OF PLAINTIFFS TO EXCLUDE ALL EVIDENCE WITHHELD FROM DISCOVERY BY DEFENDANTS 2I. INTRODUCTION In the matter of Rochelle, et al. v. Deng, et al., CGC-16-555761, Plaintiffs move to preclude Defendants from attempting to introduce any and all evidence that was not properly identified or produced during the discovery phase and to preclude all witnesses that Defendants refused to produce or did not timely produce during discovery. Il. STATEMENT OF FACTS Plaintiffs are former tenants of a rent-controlled unit located at 778 25" Avenue, San Francisco, California (“Subject Premises”). Plaintiff Angelique Rochelle moved into the Subject Premises in November 2003, and had resided there with her three children, Plaintiffs Baz Rochelle, Ella Lawton, and Leona Paslay, until July 2014. Defendants Trevor Deng and May Deng purchased the building in or around July 2013, and moved into the upstairs unit of the subject building shortly after. On June 13, 2014, Defendants served Plaintiffs with a relative move-in (“RMI”) eviction, and represented to Plaintiffs that Trevor Deng's mother, Defendant Tan, would be moving into the Subject Premises. Based on this representation, Plaintiffs agreed to a move out date, and were displaced from the Subject Premises in July 2014. Plaintiff Angelique Rochelle moved to a smaller unit in Oakland, and as a result, was no longer able to live with all three of her children. In late 2016, Plaintiff Rochelle discovered that Defendant Tan had not in fact moved into the Subject Premises, and that Defendants had renovated and re-rented the Subject Premises for a significantly higher rent amount. Ill. LEGAL ARGUMENT A. All Such Witnesses and Evidence Not Previously Produced in Discovery by Defendants Must be Excluded from Trial in Order to Protect Against Substantial Prejudice Code of Civil Procedure section 2023(b) provides for the exclusion of evidence not produced in response to a proper discovery request: “The court, after notice to any affected party, person, or attorneys, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process. NOTICE OF MOTION AND MOTION IN LIMINE NO, 2 OF PLAINTIFFS TO EXCLUDE ALL EVIDENCE WITHHELD FROM DISCOVERY BY DEFENDANTS 327 28 (b) The court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.” It is unfair and contrary to the principles of discovery to allow the introduction of hidden or withheld documents and materials that support a Plaintiffs claim. Such conduct is specifically disapproved and considered an abuse of the discovery process under Code Civ. Proc. § 2023, subd. (a)(1) to (8). Defendants may be prevented from using such materials at trial. (In re Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1171.) The reason for this approach is clear. Plaintiffs would be substantially prejudiced if Defendants were allowed to introduce any evidence at trial that was not introduced during the discovery stage of litigation. There is ample legal authority supporting this approach. The court has the power to bar the use at trial of evidence previously withheld by a party at a deposition on the basis of attorney-client privilege. In Re Marriage of Hoffmeister, supra, at p. 1171. Underlying this rule is the policy that litigants should not be permitted to "blow hot and cold" by claiming the privilege during discovery and then waiving it at trial, because such a strategy subjects the opposing party to unwarranted surprise. )A & M Records, Inc. v. Heilman (1977) 75 Cal.App.3d 554, 566, 142 Cal.Rptr. 390.) Here, Defendants should be precluded from introducing at trial any and all evidence, including witness testimony, that Defendants did not produce during the discovery phase. Specifically, Defendants should be precluded from introducing at trial any communications with one another, photographs, or emails or texts with Plaintiffs, that were not produced during the course of discovery. IV. CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that the court grant this motion in its entirety to exclude Defendants from introducing any evidence, facts, documents, and witnesses not previously disclosed to Plaintiffs in discovery. NOTICE OF MOTION AND MOTION IN LIMINE NO, 2 OF PLAINTIFFS TO EXCLUDE ALL EVIDENCE WITHHELD FROM DISCOVERY BY DEFENDANTS 4Dated: November 8, 2017 Respectfully Submitted, HOOSHMAND LAW GROUP Jenny Jin, Attorney for Plaintiffs NOTICE OF MOTION AND MOTION IN LIMINE NO. 2 OF PLAINTIFFS TO EXCLUDE ALL EVIDENCE WITHHELD FROM DISCOVERY BY DEFENDANTS 5