Preview
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LAW OFFICES OF BENNY MARTIN
Benjamin Martin (SBN 257452)
657 Santa Clara Ave. ELECTRONICALLY
Venice CA, 90291
Phone: (510) 227-4406 FILED
il: ightsinsf' i Ss ce f California,
Email: knowyourightsinsf@ gmail.com Coane een ae
Attorneys for Plaintiff Phillip Garcia 08/07/2017,
BY:RONNIE OTERO
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION
PHILLIP GARCIA, an individual, Case No. CGC-14-538560
PLAINTIFF PHILLIP GARCIA’S
AMENDED MOTION IN LIMINE NO.
1: TO EXCLUDE EVIDENCE OR
)
)
Plaintiff, }
}
} FACTS NOT DISCLOSED IN
)
)
)
)
)
)
vs.
ANGELO WILSON, an individual, et. al. DISCOVERY
Motion in Limine 1 of 12
Defendants.
This motion seeks to prevent unfair surprise at trial caused by the introduction of evidence or
facts denied or undisclosed in discovery. Such surprise is prejudicial, justifying preclusion. Campain
vy. Safeway Stores. Inc. (1972) 29 Cal.App.3d 362, 366. The Discovery Act seeks to avoid trial by
surprise, and intends to take the ‘game’ element out of trial preparation while yet retaining the
adversary nature of the trial itself. Greyhound Corporation v. Superior Court (1961) 56 Cal.2d 355,
376. This motion in limine seeks just that. Defendants should not be allowed to offer any evidence
via testimony or documentation not produced in discovery.
Specifically, Plaintiff seeks an order:
1. Precluding Defendants from introducing or referencing any document not produced in a verified
response to a document demand;
2. Precluding Defendants from calling any witness not disclosed in verified discovery responses,
and;
Loe
PLAINTIFF PHILLIP GARCIA’S AMENDED MOTION IN LIMINE NO. |: TO EXCLUDE EVIDENCE OR FACTS
NOT DISCLOSED IN DISCOVERYnD
3. Precluding Defendant from asserting any fact not disclosed in discovery responses, which were
either known, or could have been known upon a reasonably diligent investigation.
I STATEMENT OF FACTS.
A. Problems with Defendant Trust’s Verifications to its Discovery Responses.
Plaintiff propounded five (5) sets of special interrogatories upon Defendant Carrie Wilson in
her capacity as Trustee of the Wilson Family Trust. None of Defendant Trust’s responses were
properly verified other than set one (1).!
Plaintiff propounded two (2) sets of form interrogatories upon Defendant Trust. Its responses
to set one (1) were not properly verified; its responses to set two (2) were unverified.”
Plaintiff propounded two (2) sets of document demands upon Defendant Trust. Its responses
to set one (1) were not properly verified; its responses to set two (2) were unverified.*
Plaintiff propounded one (1) set of request for admissions upon Defendant Trust. Responses
to set one (1) were not properly verified.’ The following summarizes these issues:
Defendant Trust’s Discovery Responses Date of Discovery Date of
Response Verification if Any
Supplemental Responses of Carrie Wilson in Her February 11,2016 | February 10, 2016
Capacity as Trustee for The Wilson Family Trust to
Special Interrogatories, Set One (after court order
compelling further responses)
Supplemental Responses of Carrie Wilson in Her February 11,2016 | February 10, 2016
Capacity as Trustee for The Wilson Family Trust to
Form Interrogatories, Set One (after court order
compelling further responses)
Responses of Carrie Wilson in her Capacity as Trustee February 11,2016 | January 27, 2015
for The Wilson Family Trust to Plaintiff's First Set of
Request For Production of Document, Supplemental
(after court order compelling further responses)
Supplemental Responses to Defendant Carrie Wilson | February 11,2016 | January 27, 2015
in Her Capacity as Trustee for The Wilson Family
Trust to Request for Admission Propounded by
' The second set was accompanied with verification dated thirteen (13) months prior to the February 2016
response. Sets three (3) through five (5) were unverified.
> The second set was accompanied with verification dated thirteen (13) months prior to the February 2016
response.
* The first set was accompanied with verification dated thirteen (13) months prior to the February 2016
response.
“ The first set was accompanied with verification dated thirteen (13) months prior to the February 2016
response
-2-
PLAINTIFF PHILLIP GARCIA’S AMENDED MOTION IN LIMINE NO. |: TO EXCLUDE EVIDENCE OR FACTS
NOT DISCLOSED IN DISCOVERYnD
Plaintiff Phillip Garcia (after court order compelling
further responses)
Carrie Wilson in Her Capacity as Trustee of The January 28,2016 — January 27, 2015
Wilson Family Trust Responses to Special
Interrogatories Propounded by Plaintiff, Phillip
Garcia, Set Two (after court order compelling further
responses)
Carrie Wilson in Her Capacity as Trustee of The January 28,2016 | January 27, 2015
Wilson Family Trust Responses to Form
Interrogatories Propounded by Plaintiff, Phillip
Garcia, Set Two (after court order compelling further
responses)
Responses to Defendant Carrie Wilson in Her February 14,2017 | None
Capacity as Trustee of the Wilson Family Trust, to
Plaintiff Phillip Garcia’s Request for Production of
Documents, Set Two
Responses to Plaintiff Phillip Garcia’s Special Unknown. None
Interrogatories, Set Three
Responses of Defendant Carrie Wilson in Her February 13,2017 None
Capacity as Trustee of The Wilson Family Trust, to
Plaintiff Phillip Garcia’s Special Interrogatories, Set
Four
Responses of Defendant Carrie Wilson in Her February 23,2017 | None
Capacity as Trustee of The Wilson Family Trust, to
Plaintiff Phillip Garcia’s Special Interrogatories, Set
Five
Responses of Defendant Carrie Wilson in Her February 13,2017 | None
Capacity as Trustee of The Wilson Family Trust, to
Plaintiff Phillip Garcia’s Supplemental Interrogatories
Responses of Defendant Carrie Wilson in Her February 13,2017 | None
Capacity as Trustee of The Wilson Family Trust, to
Plaintiff Phillip Garcia’s Supplemental Request for
Production of Documents
As to the pre-signed verifications dated January 27, 2015, for Defendant Trust’s February
2016, discovery responses, the law is clear: it is not merely a misuse of the discovery process, it is
unethical conduct subjecting the offending attorney to discipline. Drociak v. The State Bar of
Cal. (1991) 52 Cal.3d 1085, 1087-1090.
Lege
PLAINTIFF PHILLIP GARCIA’S AMENDED MOTION IN LIMINE NO. 1: TO EXCLUDE EVIDENCE OR FACTS
NOT DISCLOSED IN DISCOVERYnD
As to the unverified responses, the law is equally clear: an unverified interrogatory response is|
the equivalent to “no response at all.” Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.
Plaintiff is severely prejudiced in having a small fraction of Defendant Trust’s verified discovery
responses to offer at trial. CCP § 2030.410. Defendant should be prohibited from offering any
evidence on matters for which unverified, or improperly verified responses to discovery were
provided. This requested relief is closely tailored to the discovery violation. There is a direct nexus
between the subject matter in the unverified responses and the subject matter of the relief sought in
this Motion in Limine.
Significantly, the issue sanctions imposed in March 17, 2017, arose from Defendant Trust’s
failure to provide sworn deposition testimony. Whereas here, the exclusion sanctions requested arise
from Defendant Trust’s failure to provide proper verifications to written discovery requests.
B. The Trust Could Not Produce a Single Document Evincing Its Existence.
According to the Trust, all documents establishing the Trust’s existence, its beneficiaries, its
assets, and the terms of the Trust have completely disappeared. No one can recall the last time
anyone has seen any Trust document. The Trust was unable to identify any jurisdiction in which the
Trust is registered, or identify any financial institution at which the Trust maintains an account.
Defendant Carrie Wilson is named as a Defendant in her individual capacity because there is no
evidence the Trust actually exists—the Trust appears to be fraudulent. Carrie Wilson (and her
deceased husband) entered into the leasehold agreement with Plaintiff in their individual capacities,
not in any trustee capacity. Plaintiff will seek to prove at trial that Carrie Wilson is personally liable
for the Trust’s unlawful conduct, and resulting damages to Plaintiff.
Since the Trust failed to produce in discovery any evidence of its existence, it should be
precluded from offering any evidence of its existence at trial.
Cc. Problems with the Trust’s Identification of Witnesses.
Only set one (1) of Defendant Trust’s responses to Plaintiff's written discovery is properly
verified. The responses to Plaintiff's special interrogatories, set one (1) sets forth no witnesses. The
responses to Plaintiffs form interrogatories, set one (1) 12.1, sets forth the following witnesses:
Angelo Wilson, Phillip Garcia, Shawn Markham, Erika Markham.
Plaintiff served a notice to attend trial on Defendants’ counsel for Angelo Wilson. We expect
Mr. Wilson to appear and testify. Plaintiff served a notice to attend trial on Defendants’ counsel for
Shawn Markham. We expect Mr. Markham to appear and testify. That leaves only Erika Markham.
-4-
PLAINTIFF PHILLIP GARCIA’S AMENDED MOTION IN LIMINE NO. |: TO EXCLUDE EVIDENCE OR FACTS
NOT DISCLOSED IN DISCOVERYnD
Ms. Markham was originally named as a defendant. Plaintiff dismissed her in 2016. Plaintiff
propounded special interrogatory No. 39 upon Defendant Trust inquiring onto Ms. Markham’s
“telephone number, mailing address, and residential address” so that she could be served with a
subpoena. Defendant Trust responded: “Responding Party does not have personal knowledge of the
information request and has made a good faith effort and a reasonable inquiry to obtain the
information.” Defendant Trust’s responses to Plaintiff's Supplemental Interrogatory in February 2016
provided no updated information. Lawyers and parties respond to written discovery together. Rifkind
v. Sup.Ct. (Good) (1994) 22 Cal.App. 4th 1255, 1259. Although the Defendants have not produced a
witness list yet, if Erika Markham is on it, Plaintiff hereby moved to exclude Erika Markham from
testifying at trial because her location was concealed from Plaintiff in discovery.
I. ARGUMENT.
It is well established that the discovery process seeks to provide parties with the opportunity
to exchange information. The courts of appeal have upheld the right of trial courts to exclude
evidence because a failure to reveal the information in a deposition. Campain v. Safeway Stores
(1972) 29 Cal App. 3d 362, 366. The courts have excluded evidence for failure to reveal information
in response to a demand for production of documents, Deeter v. Angus (1986) 178 Cal.App. 3d 241,
254, and in an answer to an interrogatory. Thoren v. Johnston and Washer (1972) 29 Cal.App.3d 270,
273-276. Trial courts exclude evidence if not disclosed during discovery. Universal Underwirters
Ins. Co. v. Superior Court (1967) 250 Cal. App. 2d 722, 727-730.
Defendant should not be permitted to introduce any “surprise” evidence, documents or
testimony, since that flies in the face of the discovery statute and the policy of open disclosure of
information reasonably calculated to lead to discoverable and admissible evidence under Title 4,
Civil Discovery Act, CCP §§2016 et seq.
And also based on CCP $2023.030(c)°, Plaintiffs Motion in Limine should be granted in the
form of evidence-based sanctions. The Court should order that Defendants, their attorney, witnesses
be precluded from testifying or introducing into evidence any documents regarding any facts or
issues not previously disclosed during discovery. This remedy should apply to Defendants’ expert
witnesses too. Generally, an expert may base his or her opinion on otherwise inadmissible
evidence—and often relays that inadmissible evidence to the jury in describing the basis of his or her
°“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.”
Ces
PLAINTIFF PHILLIP GARCIA’S AMENDED MOTION IN LIMINE NO. |: TO EXCLUDE EVIDENCE OR FACTS
NOT DISCLOSED IN DISCOVERYnD
opinion. Defendants should not be permitted to run around an Order prohibiting introduction of
nondisclosed evidence or facts in discovery through their experts.
If. CONCLUSION.
For the reasons above-stated, Plaintiff respectfully requests that this Court grant Plaintiff's
Motion in Limine #1.
DATE: June 11,2017 LAW OFFICES OF BENNY MARTIN
Benny Martin,
Attomey for Plaintiff
Lege
PLAINTIFF PHILLIP GARCIA’S AMENDED MOTION IN LIMINE NO. |: TO EXCLUDE EVIDENCE OR FACTS
NOT DISCLOSED IN DISCOVERY
Preview
nD LAW OFFICES OF BENNY MARTIN Benjamin Martin (SBN 257452) 657 Santa Clara Ave. ELECTRONICALLY Venice CA, 90291 Phone: (510) 227-4406 FILED il: ightsinsf' i Ss ce f California, Email: knowyourightsinsf@ gmail.com Coane een ae Attorneys for Plaintiff Phillip Garcia 08/07/2017, BY:RONNIE OTERO Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION PHILLIP GARCIA, an individual, Case No. CGC-14-538560 PLAINTIFF PHILLIP GARCIA’S AMENDED MOTION IN LIMINE NO. 1: TO EXCLUDE EVIDENCE OR ) ) Plaintiff, } } } FACTS NOT DISCLOSED IN ) ) ) ) ) ) vs. ANGELO WILSON, an individual, et. al. DISCOVERY Motion in Limine 1 of 12 Defendants. This motion seeks to prevent unfair surprise at trial caused by the introduction of evidence or facts denied or undisclosed in discovery. Such surprise is prejudicial, justifying preclusion. Campain vy. Safeway Stores. Inc. (1972) 29 Cal.App.3d 362, 366. The Discovery Act seeks to avoid trial by surprise, and intends to take the ‘game’ element out of trial preparation while yet retaining the adversary nature of the trial itself. Greyhound Corporation v. Superior Court (1961) 56 Cal.2d 355, 376. This motion in limine seeks just that. Defendants should not be allowed to offer any evidence via testimony or documentation not produced in discovery. Specifically, Plaintiff seeks an order: 1. Precluding Defendants from introducing or referencing any document not produced in a verified response to a document demand; 2. Precluding Defendants from calling any witness not disclosed in verified discovery responses, and; Loe PLAINTIFF PHILLIP GARCIA’S AMENDED MOTION IN LIMINE NO. |: TO EXCLUDE EVIDENCE OR FACTS NOT DISCLOSED IN DISCOVERYnD 3. Precluding Defendant from asserting any fact not disclosed in discovery responses, which were either known, or could have been known upon a reasonably diligent investigation. I STATEMENT OF FACTS. A. Problems with Defendant Trust’s Verifications to its Discovery Responses. Plaintiff propounded five (5) sets of special interrogatories upon Defendant Carrie Wilson in her capacity as Trustee of the Wilson Family Trust. None of Defendant Trust’s responses were properly verified other than set one (1).! Plaintiff propounded two (2) sets of form interrogatories upon Defendant Trust. Its responses to set one (1) were not properly verified; its responses to set two (2) were unverified.” Plaintiff propounded two (2) sets of document demands upon Defendant Trust. Its responses to set one (1) were not properly verified; its responses to set two (2) were unverified.* Plaintiff propounded one (1) set of request for admissions upon Defendant Trust. Responses to set one (1) were not properly verified.’ The following summarizes these issues: Defendant Trust’s Discovery Responses Date of Discovery Date of Response Verification if Any Supplemental Responses of Carrie Wilson in Her February 11,2016 | February 10, 2016 Capacity as Trustee for The Wilson Family Trust to Special Interrogatories, Set One (after court order compelling further responses) Supplemental Responses of Carrie Wilson in Her February 11,2016 | February 10, 2016 Capacity as Trustee for The Wilson Family Trust to Form Interrogatories, Set One (after court order compelling further responses) Responses of Carrie Wilson in her Capacity as Trustee February 11,2016 | January 27, 2015 for The Wilson Family Trust to Plaintiff's First Set of Request For Production of Document, Supplemental (after court order compelling further responses) Supplemental Responses to Defendant Carrie Wilson | February 11,2016 | January 27, 2015 in Her Capacity as Trustee for The Wilson Family Trust to Request for Admission Propounded by ' The second set was accompanied with verification dated thirteen (13) months prior to the February 2016 response. Sets three (3) through five (5) were unverified. > The second set was accompanied with verification dated thirteen (13) months prior to the February 2016 response. * The first set was accompanied with verification dated thirteen (13) months prior to the February 2016 response. “ The first set was accompanied with verification dated thirteen (13) months prior to the February 2016 response -2- PLAINTIFF PHILLIP GARCIA’S AMENDED MOTION IN LIMINE NO. |: TO EXCLUDE EVIDENCE OR FACTS NOT DISCLOSED IN DISCOVERYnD Plaintiff Phillip Garcia (after court order compelling further responses) Carrie Wilson in Her Capacity as Trustee of The January 28,2016 — January 27, 2015 Wilson Family Trust Responses to Special Interrogatories Propounded by Plaintiff, Phillip Garcia, Set Two (after court order compelling further responses) Carrie Wilson in Her Capacity as Trustee of The January 28,2016 | January 27, 2015 Wilson Family Trust Responses to Form Interrogatories Propounded by Plaintiff, Phillip Garcia, Set Two (after court order compelling further responses) Responses to Defendant Carrie Wilson in Her February 14,2017 | None Capacity as Trustee of the Wilson Family Trust, to Plaintiff Phillip Garcia’s Request for Production of Documents, Set Two Responses to Plaintiff Phillip Garcia’s Special Unknown. None Interrogatories, Set Three Responses of Defendant Carrie Wilson in Her February 13,2017 None Capacity as Trustee of The Wilson Family Trust, to Plaintiff Phillip Garcia’s Special Interrogatories, Set Four Responses of Defendant Carrie Wilson in Her February 23,2017 | None Capacity as Trustee of The Wilson Family Trust, to Plaintiff Phillip Garcia’s Special Interrogatories, Set Five Responses of Defendant Carrie Wilson in Her February 13,2017 | None Capacity as Trustee of The Wilson Family Trust, to Plaintiff Phillip Garcia’s Supplemental Interrogatories Responses of Defendant Carrie Wilson in Her February 13,2017 | None Capacity as Trustee of The Wilson Family Trust, to Plaintiff Phillip Garcia’s Supplemental Request for Production of Documents As to the pre-signed verifications dated January 27, 2015, for Defendant Trust’s February 2016, discovery responses, the law is clear: it is not merely a misuse of the discovery process, it is unethical conduct subjecting the offending attorney to discipline. Drociak v. The State Bar of Cal. (1991) 52 Cal.3d 1085, 1087-1090. Lege PLAINTIFF PHILLIP GARCIA’S AMENDED MOTION IN LIMINE NO. 1: TO EXCLUDE EVIDENCE OR FACTS NOT DISCLOSED IN DISCOVERYnD As to the unverified responses, the law is equally clear: an unverified interrogatory response is| the equivalent to “no response at all.” Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636. Plaintiff is severely prejudiced in having a small fraction of Defendant Trust’s verified discovery responses to offer at trial. CCP § 2030.410. Defendant should be prohibited from offering any evidence on matters for which unverified, or improperly verified responses to discovery were provided. This requested relief is closely tailored to the discovery violation. There is a direct nexus between the subject matter in the unverified responses and the subject matter of the relief sought in this Motion in Limine. Significantly, the issue sanctions imposed in March 17, 2017, arose from Defendant Trust’s failure to provide sworn deposition testimony. Whereas here, the exclusion sanctions requested arise from Defendant Trust’s failure to provide proper verifications to written discovery requests. B. The Trust Could Not Produce a Single Document Evincing Its Existence. According to the Trust, all documents establishing the Trust’s existence, its beneficiaries, its assets, and the terms of the Trust have completely disappeared. No one can recall the last time anyone has seen any Trust document. The Trust was unable to identify any jurisdiction in which the Trust is registered, or identify any financial institution at which the Trust maintains an account. Defendant Carrie Wilson is named as a Defendant in her individual capacity because there is no evidence the Trust actually exists—the Trust appears to be fraudulent. Carrie Wilson (and her deceased husband) entered into the leasehold agreement with Plaintiff in their individual capacities, not in any trustee capacity. Plaintiff will seek to prove at trial that Carrie Wilson is personally liable for the Trust’s unlawful conduct, and resulting damages to Plaintiff. Since the Trust failed to produce in discovery any evidence of its existence, it should be precluded from offering any evidence of its existence at trial. Cc. Problems with the Trust’s Identification of Witnesses. Only set one (1) of Defendant Trust’s responses to Plaintiff's written discovery is properly verified. The responses to Plaintiff's special interrogatories, set one (1) sets forth no witnesses. The responses to Plaintiffs form interrogatories, set one (1) 12.1, sets forth the following witnesses: Angelo Wilson, Phillip Garcia, Shawn Markham, Erika Markham. Plaintiff served a notice to attend trial on Defendants’ counsel for Angelo Wilson. We expect Mr. Wilson to appear and testify. Plaintiff served a notice to attend trial on Defendants’ counsel for Shawn Markham. We expect Mr. Markham to appear and testify. That leaves only Erika Markham. -4- PLAINTIFF PHILLIP GARCIA’S AMENDED MOTION IN LIMINE NO. |: TO EXCLUDE EVIDENCE OR FACTS NOT DISCLOSED IN DISCOVERYnD Ms. Markham was originally named as a defendant. Plaintiff dismissed her in 2016. Plaintiff propounded special interrogatory No. 39 upon Defendant Trust inquiring onto Ms. Markham’s “telephone number, mailing address, and residential address” so that she could be served with a subpoena. Defendant Trust responded: “Responding Party does not have personal knowledge of the information request and has made a good faith effort and a reasonable inquiry to obtain the information.” Defendant Trust’s responses to Plaintiff's Supplemental Interrogatory in February 2016 provided no updated information. Lawyers and parties respond to written discovery together. Rifkind v. Sup.Ct. (Good) (1994) 22 Cal.App. 4th 1255, 1259. Although the Defendants have not produced a witness list yet, if Erika Markham is on it, Plaintiff hereby moved to exclude Erika Markham from testifying at trial because her location was concealed from Plaintiff in discovery. I. ARGUMENT. It is well established that the discovery process seeks to provide parties with the opportunity to exchange information. The courts of appeal have upheld the right of trial courts to exclude evidence because a failure to reveal the information in a deposition. Campain v. Safeway Stores (1972) 29 Cal App. 3d 362, 366. The courts have excluded evidence for failure to reveal information in response to a demand for production of documents, Deeter v. Angus (1986) 178 Cal.App. 3d 241, 254, and in an answer to an interrogatory. Thoren v. Johnston and Washer (1972) 29 Cal.App.3d 270, 273-276. Trial courts exclude evidence if not disclosed during discovery. Universal Underwirters Ins. Co. v. Superior Court (1967) 250 Cal. App. 2d 722, 727-730. Defendant should not be permitted to introduce any “surprise” evidence, documents or testimony, since that flies in the face of the discovery statute and the policy of open disclosure of information reasonably calculated to lead to discoverable and admissible evidence under Title 4, Civil Discovery Act, CCP §§2016 et seq. And also based on CCP $2023.030(c)°, Plaintiffs Motion in Limine should be granted in the form of evidence-based sanctions. The Court should order that Defendants, their attorney, witnesses be precluded from testifying or introducing into evidence any documents regarding any facts or issues not previously disclosed during discovery. This remedy should apply to Defendants’ expert witnesses too. Generally, an expert may base his or her opinion on otherwise inadmissible evidence—and often relays that inadmissible evidence to the jury in describing the basis of his or her °“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.” Ces PLAINTIFF PHILLIP GARCIA’S AMENDED MOTION IN LIMINE NO. |: TO EXCLUDE EVIDENCE OR FACTS NOT DISCLOSED IN DISCOVERYnD opinion. Defendants should not be permitted to run around an Order prohibiting introduction of nondisclosed evidence or facts in discovery through their experts. If. CONCLUSION. For the reasons above-stated, Plaintiff respectfully requests that this Court grant Plaintiff's Motion in Limine #1. DATE: June 11,2017 LAW OFFICES OF BENNY MARTIN Benny Martin, Attomey for Plaintiff Lege PLAINTIFF PHILLIP GARCIA’S AMENDED MOTION IN LIMINE NO. |: TO EXCLUDE EVIDENCE OR FACTS NOT DISCLOSED IN DISCOVERY