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1 MORGAN, LEWIS & BOCKIUS LLP
Barbara J. Miller, Bar No. 167223
2 Christopher J. Taylor, Bar No. 292369
600 Anton Boulevard, Suite 1800 ELECTRONICALLY
3 Costa Mesa, CA
Tel:
92626-7653
+1.714.830.0600
F I L E D
Superior Court of California,
4 Fax: +1.714.830.0700 County of San Francisco
barbara.miller@morganlewis.com 01/27/2020
5 christopher.taylor@morganlewis.com Clerk of the Court
BY: RONNIE OTERO
Deputy Clerk
6 MORGAN, LEWIS & BOCKIUS LLP
Robert Jon Hendricks, Bar No. 179751
7 One Market, Spear Street Tower
San Francisco, CA 94105-1596
8 Tel: +1.415.442.1000
Fax: +1.415.442.1001
9 rj.hendricks@morganlewis.com
10 Attorneys for Defendant
CBRE GROUP, INC.
11
12 SUPERIOR COURT OF THE STATE OF CALIFORNIA
13 FOR THE COUNTY OF SAN FRANCISCO
14
15 MELISSA WOODS, Case No. CGC 14-537527
16 Plaintiff,
DEFENDANT’S OPPOSITION TO
17 vs. PLAINTIFF’S MOTION IN LIMINE
NO. 1 TO EXCLUDE ALL
18 CBRE GROUP, INC., and DOES 1 through WITNESSES AND DOCUMENTS NOT
100, inclusive, IDENTIFIED OR DISCLOSED IN
19 DISCOVERY
Defendant.
20
Complaint Filed: February 18, 2014
21 Trial Date: January 27, 2020
22
23
24
25
26
27
28
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
COSTA MESA
DB2/ 38147848.1 DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 1
1 Defendant CBRE Group, Inc. (“Defendant”) submits the following response to Plaintiff’s
2 motion in Motion in Limine No. 1 to Exclude all Witnesses and Documents Not Identified or
3 Disclosed in Discovery.
4 I. INTRODUCTION
5 Plaintiff seeks an order precluding Defendant from introducing witnesses and documents
6 that it did not disclose in response to Plaintiff’s written discovery requests served in this court
7 action, despite Plaintiff’s own failure to identify any potential witnesses, other than herself, in
8 response to Defendant’s written discovery requests.
9 Defendant identified three potential witnesses in response to Plaintiff’s written discovery
10 and does not intend to call any other individuals as witnesses as trial, except for any rebuttal or
11 impeachment witnesses, which are always permitted regardless of whether they are disclosed in
12 discovery. Defendant contends, however, that if Defendant is precluded from introducing
13 additional witnesses at trial, Plaintiff should be precluded from introducing any witnesses on her
14 behalf based on her failure to identify any witnesses at all, other than herself.
15 With respect to the disclosure of documents, Plaintiff appears to argue that Defendant
16 should be precluded from introducing at trial any documents that are responsive to her Request
17 for Production of Documents. Plaintiff has conceded, however, that she already possesses and
18 intends to introduce at trial documents related to the Motion for Summary Judgment Defendant
19 filed in arbitration. Because Plaintiff already possesses such documents, Plaintiff will not be
20 prejudiced if Defendant admits them at trial. Thus, at a minimum, Defendant should be permitted
21 to introduce documents that were produced in discovery during the arbitration proceedings
22 between Plaintiff and Defendant, any documents Defendant submitted in support of its Motion for
23 Summary Judgment in arbitration, and any documents necessary for rebuttal or impeachment
24 purposes regardless of whether they were disclosed in discovery.
25 II. FACTUAL BACKGROUND
26 Plaintiff filed her original Complaint on February 14, 2014 in San Francisco County
27 Superior Court naming CBRE Group, Inc. as the sole defendant. Woods filed her First Amended
28 Complaint on July 1, 2014, adding a representative action under the Private Attorneys General
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW 2
COSTA MESA
DB2/ 38147848.1 DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 1
1 Act of 2004 (“PAGA”), again naming CBRE Group, Inc. as the sole defendant. Plaintiff attached
2 as an exhibit to the complaint and First Amended Complaint one of her wage statements, which
3 lists CBRE, Inc. as her employer. Taylor Decl., ¶ 2, Exh. A.
4 CBRE moved to compel the action to arbitration on an individual basis on April 11, 2014,
5 and then filed an Amended Motion on August 22, 2014. In its Amended Motion to Compel
6 Arbitration CBRE Group, Inc. pointed out, “CBRE Group, Inc. is the only named Defendant, but
7 is not the proper party to this litigation. Woods was employed by CBRE, Inc., which is the
8 employer on the pay statement attached to the Complaint and First Amended Complaint.” Taylor
9 Decl., Exh. B.
10 On September 14, 2017, Arbitrator True issued an Order Granting in Part and Denying in
11 Part Respondent’s Motion for Summary Judgment (“Arbitration Order”). In his Arbitration
12 Order, Arbitrator True found that “Claimant was hired by CBRE, Inc.” and “claimant has named
13 the wrong party in this matter, (CBRE Group, Inc. rather than CBRE, Inc.)….” Taylor Decl.,
14 Exh. C.
15 On May 17, 2019, Defendant filed an Answer to the First Amended Complaint in court.
16 In its Answer, Defendant again stated that “CBRE Group, Inc. is the only named Defendant, but
17 is not the proper party to this litigation. Plaintiff was employed by CBRE, Inc., which is the
18 employer on the pay statement attached to the Complaint and First Amended Complaint.”
19 Defendant also asserted as its Fourth Defense “Defect or Misjoinder of Parties,” and stated that
20 “Plaintiff’s employer has not been named as a Defendant.” Taylor Decl., Exh. D.
21 Despite the Arbitrator’s finding, and Defendant’s repeated representations that it never
22 employed Plaintiff and was improperly named at the defendant in this action, Plaintiff never
23 sought to amend the complaint to add CBRE, Inc. as a defendant. On November 27, 2019, the
24 last possible day to serve non-expert discovery, Plaintiff propounded written discovery requests
25 on Defendant, the entity that never employed her. In its responses to Plaintiff’s written discovery
26 requests, Defendant objected on the grounds that “Defendant was not Plaintiff’s employer.
27 Consequently, Plaintiff has no claim against Defendant and cannot bring a PAGA claim against
28 Defendant.” Defendant did, however, identify three potential witnesses—Cindy Kee, Christopher
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
COSTA MESA 3
DB2/ 38147848.1 DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 1
1 Miller, and Brandon Yates. Moreover, in its Trial Time Limits Statement, Defendant identified
2 Cindy Key as a witness it may call as a witness. Taylor Decl., ¶ 6.
3 In response to Defendant’s written discovery requests seeking the identity of potential
4 witnesses and individuals Plaintiff intends to call as witnesses as trial, Plaintiff only named a
5 single individual, specifically, herself. Moreover, Plaintiff’s counsel did not identify a single
6 witness -- not even Plaintiff Melissa Woods -- on the witness list contained in Plaintiff’s Trial
7 Time Limits Statement. Taylor Decl., ¶ 7, Exh. E.
8 III. DEFENDANT DOES NOT INTEND TO INTRODUCE WITNESSES WHOM IT
DID NOT IDENTIFY IN DISCOVERY, BUT RESERVES THE RIGHT TO
9 INTRODUCE OTHER WITNESSES FOR REBUTTAL OR IMPEACHMENT
10 Plaintiff’s counsel seeks an order precluding Defendant from introducing any witnesses
11 other than Cindy Kee, Christopher Miller, and Brandon Yates. Presently, Defendant does not
12 intend to introduce any other witnesses at trial and agrees that witnesses who were not disclosed
13 during discovery should not be permitted to testify, except witnesses introduced for rebuttal or
14 impeachment purposes, which are always permitted regardless of whether they are disclosed in
15 discovery. But this should apply equally to Plaintiff. As Defendant explained in its Motion In
16 Limine No. 1 to Exclude Witnesses Not Identified in Discovery, Plaintiff should also be
17 precluded from introducing witnesses that it did not identify in response to Defendant’s written
18 discovery requests. Consequently, Plaintiff should not be permitted to introduce any witnesses on
19 her behalf at trial, except for rebuttal or impeachment purposes.
20 IV. DEFENDANT SHOULD BE PERMITTED TO INTRODUCE DOCUMENTS
PRODUCED DURING THE ARBITRATION, WHICH PLAINTIFF CONCEDES
21 SHE ALREADY HAS IN HER POSSESSION
22 Plaintiff argues that Defendant did not produce any documents in response to Plaintiff’s
23 Request for Production and on that basis seeks an order precluding Defendant from producing
24 documents at trial that it did not produce in discovery. Plaintiff claims that allowing Defendant to
25 admit documents not produced “would deny Plaintiff her right to due process” and argues that
26 “[s]uch trial by ambush is unfair and antithetical to traditional notions of fair play and substantial
27 justice.” These claims are misleading.
28
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
COSTA MESA 4
DB2/ 38147848.1 DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 1
1 In Plaintiffls responses to Defendant's Special Interrogatories seeking "all DOCUMENTS
2 that YOU intend to use as evidence at trial and "all DOCUMENTS that YOU contend support
J YOUR Seventh Cause of Action in the Complaint," Plaintiff responded as follows: ORDER
4 GRANTING IN PART AND DENYING IN PART RESPONDENT'S MOTION FOR
5 SUMMARY JUDGMENT, and all supporling and related documents thereto; Wage statements
6 and Wage and Hour Documents already in the possession of the parties through Arbitration
7 before the Honorable John M. True, IIL" Plaintiff has thus conceded that she already has in her
8 possession all documents that she contends support her PAGA claim and all documents that she
9 intends to introduce at trial.
10 Defendant should, at a minimum, be permitted to introduce as trial exhibits any
11 documents that were produced in discovery during the arbitration proceedings before Judge True
12 and any documents Defendant submitted in support of its Motion for Summary Judgment in
l3 arbitration. Since it is undisputed that Plaintiff already has such documents in her possession,
T4 Plaintiff will not be prejudiced in any way if Defendant introduces thetn as exhibits at trial.
15 Further, as explained above, the parties should be pennitted to introduce documents for rebuttal
16 or irnpeachment purposes, regardless of whether they were disclosed in discovery.
I] V. CONCLUSION
18 Plaintiff respectfully requests that tlie court preclude Plaintiff fi'orn introclucing any
19 witnesses aL trial on her behalf, but permit Defendant to introduce any documents that were
20 produced in discovery during the arbitration proceedings before Judge True and any documents
21 Defendant subrnitted in support of its Motion for Summary Judgrnent, which Plaintifl already has
22 in her possession. Fufther, the parties should be pennitted to introduce witnesses and docutnents
23 for rebuttal or impeachrnent, regardless of whether they were disclosed in discovely.
24 Dated: January 26,2020 MORGAN, LEWIS & BOCKIUS LLP
25
By
26 HRISTO ER J. TAYLOR
Attorneys for Defendant
27 CBRE GROUP, INC.
78
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DB2i 3¡Jr47rr48 DIIFIINDANT'S OPPOSITION TO I'LAINTIIìF'S N,IOÏ'ION 1lV¿1M1 ?iNO.1
Preview
1 MORGAN, LEWIS & BOCKIUS LLP Barbara J. Miller, Bar No. 167223 2 Christopher J. Taylor, Bar No. 292369 600 Anton Boulevard, Suite 1800 ELECTRONICALLY 3 Costa Mesa, CA Tel: 92626-7653 +1.714.830.0600 F I L E D Superior Court of California, 4 Fax: +1.714.830.0700 County of San Francisco barbara.miller@morganlewis.com 01/27/2020 5 christopher.taylor@morganlewis.com Clerk of the Court BY: RONNIE OTERO Deputy Clerk 6 MORGAN, LEWIS & BOCKIUS LLP Robert Jon Hendricks, Bar No. 179751 7 One Market, Spear Street Tower San Francisco, CA 94105-1596 8 Tel: +1.415.442.1000 Fax: +1.415.442.1001 9 rj.hendricks@morganlewis.com 10 Attorneys for Defendant CBRE GROUP, INC. 11 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 FOR THE COUNTY OF SAN FRANCISCO 14 15 MELISSA WOODS, Case No. CGC 14-537527 16 Plaintiff, DEFENDANT’S OPPOSITION TO 17 vs. PLAINTIFF’S MOTION IN LIMINE NO. 1 TO EXCLUDE ALL 18 CBRE GROUP, INC., and DOES 1 through WITNESSES AND DOCUMENTS NOT 100, inclusive, IDENTIFIED OR DISCLOSED IN 19 DISCOVERY Defendant. 20 Complaint Filed: February 18, 2014 21 Trial Date: January 27, 2020 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW COSTA MESA DB2/ 38147848.1 DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 1 1 Defendant CBRE Group, Inc. (“Defendant”) submits the following response to Plaintiff’s 2 motion in Motion in Limine No. 1 to Exclude all Witnesses and Documents Not Identified or 3 Disclosed in Discovery. 4 I. INTRODUCTION 5 Plaintiff seeks an order precluding Defendant from introducing witnesses and documents 6 that it did not disclose in response to Plaintiff’s written discovery requests served in this court 7 action, despite Plaintiff’s own failure to identify any potential witnesses, other than herself, in 8 response to Defendant’s written discovery requests. 9 Defendant identified three potential witnesses in response to Plaintiff’s written discovery 10 and does not intend to call any other individuals as witnesses as trial, except for any rebuttal or 11 impeachment witnesses, which are always permitted regardless of whether they are disclosed in 12 discovery. Defendant contends, however, that if Defendant is precluded from introducing 13 additional witnesses at trial, Plaintiff should be precluded from introducing any witnesses on her 14 behalf based on her failure to identify any witnesses at all, other than herself. 15 With respect to the disclosure of documents, Plaintiff appears to argue that Defendant 16 should be precluded from introducing at trial any documents that are responsive to her Request 17 for Production of Documents. Plaintiff has conceded, however, that she already possesses and 18 intends to introduce at trial documents related to the Motion for Summary Judgment Defendant 19 filed in arbitration. Because Plaintiff already possesses such documents, Plaintiff will not be 20 prejudiced if Defendant admits them at trial. Thus, at a minimum, Defendant should be permitted 21 to introduce documents that were produced in discovery during the arbitration proceedings 22 between Plaintiff and Defendant, any documents Defendant submitted in support of its Motion for 23 Summary Judgment in arbitration, and any documents necessary for rebuttal or impeachment 24 purposes regardless of whether they were disclosed in discovery. 25 II. FACTUAL BACKGROUND 26 Plaintiff filed her original Complaint on February 14, 2014 in San Francisco County 27 Superior Court naming CBRE Group, Inc. as the sole defendant. Woods filed her First Amended 28 Complaint on July 1, 2014, adding a representative action under the Private Attorneys General MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW 2 COSTA MESA DB2/ 38147848.1 DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 1 1 Act of 2004 (“PAGA”), again naming CBRE Group, Inc. as the sole defendant. Plaintiff attached 2 as an exhibit to the complaint and First Amended Complaint one of her wage statements, which 3 lists CBRE, Inc. as her employer. Taylor Decl., ¶ 2, Exh. A. 4 CBRE moved to compel the action to arbitration on an individual basis on April 11, 2014, 5 and then filed an Amended Motion on August 22, 2014. In its Amended Motion to Compel 6 Arbitration CBRE Group, Inc. pointed out, “CBRE Group, Inc. is the only named Defendant, but 7 is not the proper party to this litigation. Woods was employed by CBRE, Inc., which is the 8 employer on the pay statement attached to the Complaint and First Amended Complaint.” Taylor 9 Decl., Exh. B. 10 On September 14, 2017, Arbitrator True issued an Order Granting in Part and Denying in 11 Part Respondent’s Motion for Summary Judgment (“Arbitration Order”). In his Arbitration 12 Order, Arbitrator True found that “Claimant was hired by CBRE, Inc.” and “claimant has named 13 the wrong party in this matter, (CBRE Group, Inc. rather than CBRE, Inc.)….” Taylor Decl., 14 Exh. C. 15 On May 17, 2019, Defendant filed an Answer to the First Amended Complaint in court. 16 In its Answer, Defendant again stated that “CBRE Group, Inc. is the only named Defendant, but 17 is not the proper party to this litigation. Plaintiff was employed by CBRE, Inc., which is the 18 employer on the pay statement attached to the Complaint and First Amended Complaint.” 19 Defendant also asserted as its Fourth Defense “Defect or Misjoinder of Parties,” and stated that 20 “Plaintiff’s employer has not been named as a Defendant.” Taylor Decl., Exh. D. 21 Despite the Arbitrator’s finding, and Defendant’s repeated representations that it never 22 employed Plaintiff and was improperly named at the defendant in this action, Plaintiff never 23 sought to amend the complaint to add CBRE, Inc. as a defendant. On November 27, 2019, the 24 last possible day to serve non-expert discovery, Plaintiff propounded written discovery requests 25 on Defendant, the entity that never employed her. In its responses to Plaintiff’s written discovery 26 requests, Defendant objected on the grounds that “Defendant was not Plaintiff’s employer. 27 Consequently, Plaintiff has no claim against Defendant and cannot bring a PAGA claim against 28 Defendant.” Defendant did, however, identify three potential witnesses—Cindy Kee, Christopher MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW COSTA MESA 3 DB2/ 38147848.1 DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 1 1 Miller, and Brandon Yates. Moreover, in its Trial Time Limits Statement, Defendant identified 2 Cindy Key as a witness it may call as a witness. Taylor Decl., ¶ 6. 3 In response to Defendant’s written discovery requests seeking the identity of potential 4 witnesses and individuals Plaintiff intends to call as witnesses as trial, Plaintiff only named a 5 single individual, specifically, herself. Moreover, Plaintiff’s counsel did not identify a single 6 witness -- not even Plaintiff Melissa Woods -- on the witness list contained in Plaintiff’s Trial 7 Time Limits Statement. Taylor Decl., ¶ 7, Exh. E. 8 III. DEFENDANT DOES NOT INTEND TO INTRODUCE WITNESSES WHOM IT DID NOT IDENTIFY IN DISCOVERY, BUT RESERVES THE RIGHT TO 9 INTRODUCE OTHER WITNESSES FOR REBUTTAL OR IMPEACHMENT 10 Plaintiff’s counsel seeks an order precluding Defendant from introducing any witnesses 11 other than Cindy Kee, Christopher Miller, and Brandon Yates. Presently, Defendant does not 12 intend to introduce any other witnesses at trial and agrees that witnesses who were not disclosed 13 during discovery should not be permitted to testify, except witnesses introduced for rebuttal or 14 impeachment purposes, which are always permitted regardless of whether they are disclosed in 15 discovery. But this should apply equally to Plaintiff. As Defendant explained in its Motion In 16 Limine No. 1 to Exclude Witnesses Not Identified in Discovery, Plaintiff should also be 17 precluded from introducing witnesses that it did not identify in response to Defendant’s written 18 discovery requests. Consequently, Plaintiff should not be permitted to introduce any witnesses on 19 her behalf at trial, except for rebuttal or impeachment purposes. 20 IV. DEFENDANT SHOULD BE PERMITTED TO INTRODUCE DOCUMENTS PRODUCED DURING THE ARBITRATION, WHICH PLAINTIFF CONCEDES 21 SHE ALREADY HAS IN HER POSSESSION 22 Plaintiff argues that Defendant did not produce any documents in response to Plaintiff’s 23 Request for Production and on that basis seeks an order precluding Defendant from producing 24 documents at trial that it did not produce in discovery. Plaintiff claims that allowing Defendant to 25 admit documents not produced “would deny Plaintiff her right to due process” and argues that 26 “[s]uch trial by ambush is unfair and antithetical to traditional notions of fair play and substantial 27 justice.” These claims are misleading. 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW COSTA MESA 4 DB2/ 38147848.1 DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 1 1 In Plaintiffls responses to Defendant's Special Interrogatories seeking "all DOCUMENTS 2 that YOU intend to use as evidence at trial and "all DOCUMENTS that YOU contend support J YOUR Seventh Cause of Action in the Complaint," Plaintiff responded as follows: ORDER 4 GRANTING IN PART AND DENYING IN PART RESPONDENT'S MOTION FOR 5 SUMMARY JUDGMENT, and all supporling and related documents thereto; Wage statements 6 and Wage and Hour Documents already in the possession of the parties through Arbitration 7 before the Honorable John M. True, IIL" Plaintiff has thus conceded that she already has in her 8 possession all documents that she contends support her PAGA claim and all documents that she 9 intends to introduce at trial. 10 Defendant should, at a minimum, be permitted to introduce as trial exhibits any 11 documents that were produced in discovery during the arbitration proceedings before Judge True 12 and any documents Defendant submitted in support of its Motion for Summary Judgment in l3 arbitration. Since it is undisputed that Plaintiff already has such documents in her possession, T4 Plaintiff will not be prejudiced in any way if Defendant introduces thetn as exhibits at trial. 15 Further, as explained above, the parties should be pennitted to introduce documents for rebuttal 16 or irnpeachment purposes, regardless of whether they were disclosed in discovery. I] V. CONCLUSION 18 Plaintiff respectfully requests that tlie court preclude Plaintiff fi'orn introclucing any 19 witnesses aL trial on her behalf, but permit Defendant to introduce any documents that were 20 produced in discovery during the arbitration proceedings before Judge True and any documents 21 Defendant subrnitted in support of its Motion for Summary Judgrnent, which Plaintifl already has 22 in her possession. Fufther, the parties should be pennitted to introduce witnesses and docutnents 23 for rebuttal or impeachrnent, regardless of whether they were disclosed in discovely. 24 Dated: January 26,2020 MORGAN, LEWIS & BOCKIUS LLP 25 By 26 HRISTO ER J. TAYLOR Attorneys for Defendant 27 CBRE GROUP, INC. 78 N,l()ti(;/\N, l-rt!ts & llx--KrtJS Ì-1.,1' /\tl(¡ìNr:\¡^tL-,1r! (ìÀr^ trlr:\A 5 r DB2i 3¡Jr47rr48 DIIFIINDANT'S OPPOSITION TO I'LAINTIIìF'S N,IOÏ'ION 1lV¿1M1 ?iNO.1