Motion,Ex Parte: JOYCE JUELCH, ET AL VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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                                MCKENNA LONG &
ALDRIDGE LLP
ATTORNEYS AT LAW
SAN FRANCISCO,

LISA L. OBERG (BAR NO. 120139)
DANIEL B. HOYE (BAR NO. 139683)
ALECIA E, COTTON (BAR NO. 252777)

MCKENNA LONG & ALDRIDGE LLP ELECTRONICALLY

101 California Street FILED

41st Floor Superior Court of California,

San Francisco, CA 94111 County of San Francisco

Telephone: (415) 267-4000

Feeplones (5) 26r ag APR 13 2010
: HOLA

Attorneys for Defendant BY: CHRISTEE ‘Deputy Clerk

METALCLAD INSULATION CORPORATION

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

JOYCE JUELCH and Case No. CGC-09-275212
NORMAN JUELCH, SR.,
DEFENDANT'S MOTION IN LiminE TO
EXCLUDE DOCUMENTS AND WITNESSES NOT
DiscLosep DurinG Discovery [MIL 4]
Plaintiffs,
TRIAL DATE: APRIL 5, 2010
v. DEpT.:
1 JUDGE: HIONORABLE MARLa J. MILLER
ASBESTOS DEFENDANTS, (BP), e¢ al.,
Defendants.
L
INTRODUCTION

Defendant METALCLAD INSULATION CORPORATION (“Metalclad” or
“Defendant”) anticipates that plaintiffs may attempt to introduce at trial witnesses that were not
previously identified and/or evidence that was not previously produced during discovery in this
action, including but not limited to, responses to interrogatories, requests for admission and
requests for production. The introduction of such witnesses and/or evidence would unduly
prejudice Defendant and, therefore, must be excluded.

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DEFENDANT'S MOTION IN LIMINE TO EXCLUDE DOCUMENTS AND WITNESSES NOT DISCLOSED DURING DISCOVERY [MIL 4}
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DEFENDANT Is ENTITLED TO RELY UPON PLAINTIFFS’ DISCOVERY RESPONSES
AND JUDICIAL ADMISSIONS TO PREPARE A DEFENSE AND
AYOID PREJUDICE By SURPRISE AT TRIAL

A. ‘THE PURPOSE OF DISCOVERY

The principal purpose of discovery is to eliminate surprise at trial. See Chronicle
Publishing Company v. Superior Court (1960) $4 Cal.2d 348, 501, The first Discovery Act was
enacted by the California Legislature in 1957. As noted by the California Supreme Court many
years, “[c]ertainly, it can be said, that the Legislature intended to take the ‘game’ element out of
trial preparation while yet retaining the adversary nature of the trial itself. One of the principal

purposes of discovery was to do away ‘with the sporting theory of litigation ~ namely, surprise at

trial.” Grevhound Corporation v. Superior Cowt (1961) 36 ©)
accomplished by giving “greater assistance to the parties in ascertaining the truth and in checking
and preventing perjury, and by providing an effective means of detecting and exposing false,
fraudulent and sham claims and defenses.” /i.

In enacting the discovery statutes, the Legislature not only intended to prevent surprise at
trial, but also to provide a means by which the parties may be educated regarding the claims and
defenses so as to encourage settlements, and expedite and facilitate trials. Grevhownd supra. 36
Cual.2d at 376, Though the original Discovery Act was amended in 1986, and again in 2004, the
fundamental purpose of the discovery statutes as recognized by our state Supreme Court in
Chronicle and Grevhannd still hold true today. See Emerson Elecirie Company v. Superior Court
(1997) 16 Calath 1104, 1107.

B. Tue Scope Or PERMISSIBLE DISCOVERY AND THE Duty OF PLAINTIFFS To ACT
In Goop Fart AND To PROVIDE FULL AND COMPLETE RESPONSES

Although the scope of plaintiffs’ claims are framed by their complaint, complaints are
ofien times broadly plead and fail to disclose the precise nature of the claims asserted, much less
the specifics of the matter at issue. Thus, discovery is required to pin down the adversary’s

position. Contention interrogatories are recognized as one of the most important discovery tools

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DEFENDANT'S MOTION IN LIMINE TO EXCLUDE DOCUMENTS AND WITNESSES NOT DISCLOSED DURING DISCOVERY [MIL 4}
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McKaNnna LONG &
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ATTORNEYS AT LAW

available under the Discovery Act. See Weil & Brown. Cal. Practice Guide: Civil Procedure
Before Trial (The Rutter Group 2007) € 8:990. pp. 8F-25-26: see also, © 8403, p. 8D-12. Code of
Chil Procedure section 2030.010(b) specifically authorizes a party to serve interrogatories
relating to whether another is making a certain contention, and to require disclosure of the facts,

witnesses, and writings upon which that contention is based. See Code of Civil Procedure

section 2030,010(b) and Burke v. Superior Court (1969) 7! Cal.2d 275. 281, This section further
provides that a contention interrogatory is not subject to objection because an answer is based
upon “information obtained or legal theories developed in anticipation of trial.” Code uf Civil
Procedure section 2030.010(b),

In addition to contention and other forms of interrogatories, the Civil Discovery Act
provides for a number of other means of obtaining discovery including, but not limited to,
requests for admissions, requests for production of documents, and expert discovery. See Code of
Civil Procedure section 2016.010 to 2036.630. Of course, discovery is not limited to that which
may be obtained from another party, one may also obtain evidence from non-parties by subpoena.
See Code of Civil Pracedure section 1985, et seq.

When responding to discovery, “[p]arties must state the truth, the whole truth, and nothing
but the truth.” Scfeiding v. Dinwiddle Construction Campany (1999) 60 Cal App.4th 64. 76.
Thus, when responding to written discovery, a party must furnish information available for
sources under his control including his attorney, his agents or employees, and experts. Deyo v.
Nilbourne (1978) 84 CaLApp.3d 771. 782; Regency Healtli Services. dic... Superior Court
(1998) G4 Cal. App-dth 1496, 1504 [If the responding party does not have personal knowledge of
the information requested, he may say so, but must make a reasonable and good faith effort to
obtain the information]; Smith v. Superior Court (1961) 189 Cal. App.2d 6. 11-12 [Disclosure of
nonprivileged facts known to a party’s attorney must be disclosed, even if the party has no
personal knowledge of the facts]; Gordon +. Superior Court 19843 (61 CaLApp.3d 157. 167-168
[A corporate entity is required to disclose information known to all persons in its employ].
Plaintiff is also expected to have made a good faith inquiry of his or her family members if they
are cooperating in the lawsuit. See Jones v. Superior Court 1981) 119 CaLApp.3d 534. 582,

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DEFENDANT'S MOTION IN LIMINE TO EXCLUDE DOCUMENTS AND WITNESSES NOT DISCLOSED DURING DISCOVERY [MIL 4}
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| Thus, for example, if a party is unable to comply with a document request because he is not in
possession, custody or control of the requested writing, in accordance with the policy behind the
Discovery Act, and as required under section 203} .230, that party must state the name and
| address of the person believed to have the document.
Cc JUDICIAL ADMISSIONS

To the extent that a plaintiff makes an admission in a pleading, he is bound by it and the
defendant is entitled to rely on the admission. See Valeria vo fudrciws Douigyuist Consiruction
(2002) 103 Cal App.4th 1264. 1271.
| TI.

PLAINTIFFS SHOULD BE BARRED FROM INTRODUCING TESTIMONY FROM WITNESSES

AND DOCUMENTS THEY FaILeD To IDENTIFY IN DiscOVERY AND FROM
Pursuinc CLAIMS THAT WERE NOT PREVIOUSLY DISCLOSED

| The authority to exclude at trial evidence or information withheld during discovery is
expressly provided in Code of Civil Procesiay section 023.030, Section 223.010 identifies
misuse of discovery as including the failure to respond to discovery and making an evasive

i Procedure seetion 2023.030(1 and (1), Section 2023.030, governing

response. Code of C
| sanctions for the misuse of discovery, expressly authorizes a court to impose not only monetary
sanctions, but, more importantly, issue and evidentiary sanctions. This section states, in pertinent
part as follows:

| {b) The court may impose an issue sanction ordering
that the designated facts shall be taken as established in the action
in accordance with the claim of the party adversely affected by the
misuse of the discovery process. the court may also impose an
issue sanction by an order prohibiting any party engaging in the
misuse of the discovery process from supporting or opposing
designated claims or defenses.

(c)___ 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. Cucde of
Civil Procedure section 2023.030(b) and tc).
In Thoren v. Johnston & Washer (1979) 29 Cal. App.3d 270, the Court of Appeal excluded
the testimony of a witness whose name was not revealed in the response to an interrogatory

requesting the names of all the witnesses to an accident. In Jjorvn, a construction worker sued

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his employer’s subcontractor after being injured on a construction site. In response to the

| defendant’s interrogatory seeking identification of all witnesses who arrived at the scene of the
accident, the plaintiff did not include the name of his union’s representative who had gone to the
accident site, taken photos, and given the photos to plaintiffs attorney, to whom he had referred
plaintiff. During opening statements, plaintiff's counsel indicated that he intended to call the
witness. The trial court sustained the defendant’s objection, and later granted the defendant’s

i motion for nonsuit.

In affirming the trial court’s ruling, the Court of Appeal stated, “[t]he power of the trial

| court to bar the testimony of a witness willfully excluded from an answer to an interrogatory

seeking the names of witnesses to an occurrence is found in the express language of the discovery

act and is an inherently necessary one if the purposes of the act are to be achieved.” (Emphasis

added.) Thores, 29 Cal. App.3d at 273. The Thoren court recognized the prejudice to the
defendant caused by the plaintiff's failure to identify all witnesses:

} Where a party served with an interrogatory asking the

names of witnesses to an occurrence then known to him deprives
his adversary of that information by a willfully false response, the
subjects the adversary to unfair surprise at trial. He deprives his
adversary of the opportunity of preparation which could disclose
whether the witness will tell the truth and whether a claim based
upon the witness’ testimony is a sham, false, or fraudulent.

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| Here, [plaintiff] gave the name of only one person when
interrogated with respect to persons who had observed the accident
scene shortly after his injury. In order to achieve the purposes of
civil discovery, the trial court could properly hold that he should be
limited to calling that person to testify to the nature of the scene.

| [T]he answer of [plaintiff to the interrogatory] went directly
to [the defendant’s] preparation for trial and seriously impeded it.”

| 29 CaLApp.3d at 274-278,

The fhoren court concluded that an order barring admission of evidence concerning the
matter was justified where the individual willfully gave a wrong answer or deliberately omitted

| the answer. Zhoren 29 Cal.App.3d at 27-4. Finding that the trial court could have properly

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inferred that the plaintiff's attorney either knew that the witness was one whose identity was
requested by the interrogatory, or “deliberately refrained” from determining whether he was, the
appellate court concluded that the omission of the witness’ name from the interrogatory response
was willful and affirmed the judgment. 29 Cal.App.3d at 275-270.

Evidence preclusion is not limited to situations involving a misuse or abuse of the
discovery. In addition to the express provisions under the Code of Civil Procedure, the trial court
has the inherent power #-vidence Code section 352 to exclude evidence if its probative value is
outweighed by the probability that its admission will create a substantial danger of undue
prejudice.

Accordingly, should plaintiffs attempt to introduce witnesses and/or evidence which was
requested but not produced during discovery, including but not limited to, responses to
interrogatories, requests for admission and requests for production, such evidence should be
excluded. For the same reason, plaintiffs should be barred from asserting any new claim not

previously identified.

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CONCLUSION
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3 For the foregoing reasons, Defendant respectfully requests that this Court enter an order
4 excluding any witnesses and/or evidence requested but not produced by plaintiffs in this action, as
5 | well as any claims plaintiffs failed to identify.
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8 | Dated: — April 5, 2010 MCKENNA LONG & ALDRIDGE LLP
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9 : yf
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10 By: Uda G. td
Lisa L, OBERG
i DaMirt. B. Hove
ALECIA E. COTTON
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13 Attorneys for Defendant,
METALCLAD INSULATION
14 | CORPORATION
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