Preview
1 STEVEN B. PISER, SBN 62414
LAW OFFICES OF STEVEN B. PISER
2 A Professional Corporation
1970 Broadway, Suite 600
3 Oakland, California 94612
Telephone: (510) 835-5582
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JOHN L. FITZGERALD, SBN 126613
5 LAW OFFICES OF JOHN L. FITZGERALD
177 Bovet Road, Suite 600
6 San Mateo, California 94402
Telephone: (650) 638-2386
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8 Attorneys for
DBP INVESTMENTS,
9 a California General Partnership
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12 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
13 IN AND FOR THE COUNTY OF SAN MATEO
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15
DBP INVESTMENTS, a California General ) CASE No. C1V538897
16 Partnership, )
)
17 Plaint ff ) I)BP’s OPPOSITION To MOTIONS IN LIMINE
) #1 AND#2
18 V. )
) TRIAL : NOVEMBER22,2022
19 KING PLAZA CENTER, LLC, a Delaware ) TIME : 9:00 AM.
Limited Liability Company, BUA-QUACII, ) DEPT. : 21 —ROBERT FOILES
20 an individual, SOVAN LIEN, an individual, )
DONG VUONG, an individual, TI-IANI-1 )
21 LAI, and DOES 1 through 10 )
)
22 Defendants. )
23 Motion in Limine #1---Limiting Evidence to Support the Enforceability of the
24 Reciprocal Easement and Operation Agreement
25 King properly characterizes DBP’s the first amended complaint as seeking injunctive
26 relief to prevent King from interfering with “DSP Investments’ rights under a written Reciprocal
27 Easement and Operation Agreement” that King’s predecessor entered into with DSP.
28
‘Points and authorities3:6-7
Law Offices of
S/den ft. Piser
ill
DRP’s OPPOSITION To MOTIONS IN LIMINE AND #2
1 But the nature of the claim does not support King’s attempt to prevent DBP from
2 presenting facts demonstrating the Agreement is enforceable.
3 When the first amended complaint was filed,King’s earlier filed cross-complaint
4 described it as a “successor to a written agreement pertaining to the use of the Adjacent
5 Common Area.”2 It sued DBP for breach of the written agreement alleging that it,King, had
6 “performed allconditions on its part to be performed.”3 King sought to hold DI3P liable based on
7 the contract it now says is unenforceable because it was not recorded.
8 King argues DBP cannot present evidence that King’s conduct estops it from prevailing
9 on this defense or that King is barred by the facts demonstrating waiver. King does not explain
10 why it should be able to assert a defense, yet prevent DBP from responding. In so doing it
11 ignores the allegation of the very pleading it relies on to support its claim. Paragraph 9 of the
12 first amended complaint says:
13 “DBP has performed all conditions on its part to he performed
under the agreement, except those for which DBP’s performance
14 is excused because of the conduct ofdefendant, King.”
15 The undisputed facts regarding waiver and estoppel are relevant to countering King’s
16 defense to the enforceability of the written agreement. And an in lirnine motion should not be
17 able to do preclude DBP from challenging a defense:
18 “In limine motions are designed to facilitate the management of a
case, generally by deciding difficult evidentiary issues in advance
19 of trial What [they] arc not designed to do is to replace the
dispositive motions prescribed by the Code of Civil Procedure. It
20 has become increasingly common, however, for litigants to utilize
in limine motions for this purpose.”
21
5uI
22 (Tungv. Chicago Title Company (2021)63 Cal.App. 734, 758
quoting from Amtower v. Photon Dynamics, Jnc.(2008) 158
23 Cal.App.4th 1582, 1593.)
24 This motion seeks to preclude of evidence King’s conduct over 15-years, accepting the
25 benefits of the easement. King is well aware of the facts DBP intends to introduce. That DBP
26 chose to file a complaint for declaratory relief (now stayed) does not act to limit the scope of
27
28 2cross-Cornplaint ¶26 (See request for judicial notice).
3cross-Cornplaint ¶27.
Low Offices of
Store,, B. Piser 2
DBP’s OPPOSITION To MOTIONS IN LIMINE #1 AND #2
1 admissible evidence in this case.
2 Motion in Limine #2 — Motion in Limine to Exclude Evidence of Plaintiff’s Financials
3 King’s motion in limine to exclude evidence of DBP’s “financials” confuses a claim for
4 damages—whieh is not asserted—with a claim for injunctive relief, a remedy “to prevent the
5 breach of an obligation. .. where pecuniary compensation would not afford adequate relief, or
6 where it would be extremely difficult to ascertain the amount of compensation which would
7 afford adequate relief.” (Civ. Code, §3422.)
8 The deposition passages cited in King’s motion do not address the harm to he suffered by
9 DBP and its tenant in the event King breaches its obligations under thc Reciprocal Easement and
10 Operation Agreement. Rather, the questions improperly sought to obtain private financial
11 information about purchase price paid by Iitke for his interest in the shopping center, the
12 foreclosure proceedings involving the property in 1990, Robert DeVineenzi’s percentage
13 ownership in Classic Bowl,4 the amount of rent paid by Classic Bowl, and the profitability of
14 Classic Bowl.
15 DBP’s refusal to allow discovery regarding private linaneial infonnation in this action,
16 which does not seek economic damages does not foreclose DJ3P from showing the irreparable
17 injury likely to result if King’s conduct is not enjoined. King now seeks a vague order
18 precluding DBP from introducing “evidence of such financial information.”5
19 DBP does not intend to introduce evidence of its financial condition, the financial
20 condition of its tenant Classic Bowl or the financial condition of DBP’s partners.
21 DBP will present evidence of the harm to DBP’s property and Classic if King is not
22 enjoined from violating the easement and preventing D13P from using the common area as
23 contemplated in the Reciprocal Easement and Operation Agreement. That has nothing to do with
24
4Robert DeVincenzi is a partner of DBP.
25 5None of the objections or statements made by counsel during the depositions can be construed to preclude DBP
from introducing evidence supporting its claim for injunctive relief. The cases cited by
King are inapposite.
26 Counsel’s statements were not a statement made during closing argument at trial endorsing the testimony of witness
on direct examination about a credit against damages. (Fassberg Construction Co. v.housing Authority of City of
27 Los Angeles (2007) 152 Cal.App.4th 720, 752.) Nor can any statements be considered a stipulation or an agreement
between counsel. (B/anton v. Woinencare, Inc. (1985)38 Cal.3d 396, 404.) In fact, “[a]n attorney is not authorized,
28 however, merely by virtue of his retention in litigation, to “impair the client’s substantial rights or the cause of
action itself.” (Id.)
Law Officesof
Steveii B. Piser 3
0BPs OpposlToN To MoToNs IN LIMINE#1 AND #2
1 any of the financial matters King sought to inquire about which D[3P objected to in discovery.
2 LAW OFFICES OF S’I’EVEN 13. PISER
A Professional Corporation
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LAW OFFICES OF JOHN L, FITZGERALD
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Dated: November 2O22 By:
STE A
Attorney
N B.
for
PISER
DBP [N VESTMENTS
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Law Offices of
Steveit B. Piser 4
10 MOTIONS IN lIMINE ill AND 12
DI3P’S OPPOSITION
1 PROOF OF SERVICE BY E-MAIL
DBP Investments v. King Plaza Center and Related Cross-Action
2 San Mateo County Superior Court, Unlimited Jurisdiction
Case #CW538897
3
4!
I, Esperanza Izazaga, declare the following:
5 I am employed in Alameda County, California, am over eighteen years of age, and
am not a party to the within action or proceeding. My business address is 1970
6’ Broadway, Suite 6oo, Oakland, California 94612.
7 On November 17, 2022, I served a copy of:
8 DBP’s OBJECTION To MOTIONS IN LIMINE #1 AND #2
9 by sending copies via electronic mail as follows
10 Co-Counselfor King Plaza Center, LLC Attorneysfor Bua-Quach, Sovan Lien,
Steven D. McLellan Dong Vuong, Thanh Lai
11 Gates Eisenhart Dawson James M. Barrett
125 South Market Street, Suite 1200 Law Office ofJames M. Barrett
12 100 W. El Carnino Real, Suite 8’
San Jose, California 95113
Mountain View, California 94040
13 Telephone: (408) 288-8100 Telephone: (650) 969-3687
Facsimile: (408) 288-9409 Facsimile: (650) 969-3699
14 e-mail: sdmapedlaw.com e-mail: jb@jamesbarrettlaw.com
15 Attorneysfor King Plaza renter, LLC Co-Counselfor Plaintiffs
Janet Fogarty John L. Fitzgerald
16 Law Office ofJanet Foqarty & Associates Law Offices ofJohn L. Fitzgerald
1126 Hillcrest Boulevard 177 Bovet Road, Suite 6oo
17 San Mateo, California 94402
Millbrae, California 94030
Telephone: (415) 689-1209
18 Telephone: (650) 652-5601 e-mail: johnjlfitzgeraldlawcom
Facsimile: (650) 652-5604
19 e-mail: jfogartylawfinnyahoo.corn
20 I declare under penalty of perjury that the foregoing is
Executed November 17, 2022, at Oakland, ifornia.
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PROOF OF SERVICE By E-MML
Preview
1 STEVEN B. PISER, SBN 62414 LAW OFFICES OF STEVEN B. PISER 2 A Professional Corporation 1970 Broadway, Suite 600 3 Oakland, California 94612 Telephone: (510) 835-5582 4 JOHN L. FITZGERALD, SBN 126613 5 LAW OFFICES OF JOHN L. FITZGERALD 177 Bovet Road, Suite 600 6 San Mateo, California 94402 Telephone: (650) 638-2386 7 8 Attorneys for DBP INVESTMENTS, 9 a California General Partnership 10 11 12 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 IN AND FOR THE COUNTY OF SAN MATEO 14 15 DBP INVESTMENTS, a California General ) CASE No. C1V538897 16 Partnership, ) ) 17 Plaint ff ) I)BP’s OPPOSITION To MOTIONS IN LIMINE ) #1 AND#2 18 V. ) ) TRIAL : NOVEMBER22,2022 19 KING PLAZA CENTER, LLC, a Delaware ) TIME : 9:00 AM. Limited Liability Company, BUA-QUACII, ) DEPT. : 21 —ROBERT FOILES 20 an individual, SOVAN LIEN, an individual, ) DONG VUONG, an individual, TI-IANI-1 ) 21 LAI, and DOES 1 through 10 ) ) 22 Defendants. ) 23 Motion in Limine #1---Limiting Evidence to Support the Enforceability of the 24 Reciprocal Easement and Operation Agreement 25 King properly characterizes DBP’s the first amended complaint as seeking injunctive 26 relief to prevent King from interfering with “DSP Investments’ rights under a written Reciprocal 27 Easement and Operation Agreement” that King’s predecessor entered into with DSP. 28 ‘Points and authorities3:6-7 Law Offices of S/den ft. Piser ill DRP’s OPPOSITION To MOTIONS IN LIMINE AND #2 1 But the nature of the claim does not support King’s attempt to prevent DBP from 2 presenting facts demonstrating the Agreement is enforceable. 3 When the first amended complaint was filed,King’s earlier filed cross-complaint 4 described it as a “successor to a written agreement pertaining to the use of the Adjacent 5 Common Area.”2 It sued DBP for breach of the written agreement alleging that it,King, had 6 “performed allconditions on its part to be performed.”3 King sought to hold DI3P liable based on 7 the contract it now says is unenforceable because it was not recorded. 8 King argues DBP cannot present evidence that King’s conduct estops it from prevailing 9 on this defense or that King is barred by the facts demonstrating waiver. King does not explain 10 why it should be able to assert a defense, yet prevent DBP from responding. In so doing it 11 ignores the allegation of the very pleading it relies on to support its claim. Paragraph 9 of the 12 first amended complaint says: 13 “DBP has performed all conditions on its part to he performed under the agreement, except those for which DBP’s performance 14 is excused because of the conduct ofdefendant, King.” 15 The undisputed facts regarding waiver and estoppel are relevant to countering King’s 16 defense to the enforceability of the written agreement. And an in lirnine motion should not be 17 able to do preclude DBP from challenging a defense: 18 “In limine motions are designed to facilitate the management of a case, generally by deciding difficult evidentiary issues in advance 19 of trial What [they] arc not designed to do is to replace the dispositive motions prescribed by the Code of Civil Procedure. It 20 has become increasingly common, however, for litigants to utilize in limine motions for this purpose.” 21 5uI 22 (Tungv. Chicago Title Company (2021)63 Cal.App. 734, 758 quoting from Amtower v. Photon Dynamics, Jnc.(2008) 158 23 Cal.App.4th 1582, 1593.) 24 This motion seeks to preclude of evidence King’s conduct over 15-years, accepting the 25 benefits of the easement. King is well aware of the facts DBP intends to introduce. That DBP 26 chose to file a complaint for declaratory relief (now stayed) does not act to limit the scope of 27 28 2cross-Cornplaint ¶26 (See request for judicial notice). 3cross-Cornplaint ¶27. Low Offices of Store,, B. Piser 2 DBP’s OPPOSITION To MOTIONS IN LIMINE #1 AND #2 1 admissible evidence in this case. 2 Motion in Limine #2 — Motion in Limine to Exclude Evidence of Plaintiff’s Financials 3 King’s motion in limine to exclude evidence of DBP’s “financials” confuses a claim for 4 damages—whieh is not asserted—with a claim for injunctive relief, a remedy “to prevent the 5 breach of an obligation. .. where pecuniary compensation would not afford adequate relief, or 6 where it would be extremely difficult to ascertain the amount of compensation which would 7 afford adequate relief.” (Civ. Code, §3422.) 8 The deposition passages cited in King’s motion do not address the harm to he suffered by 9 DBP and its tenant in the event King breaches its obligations under thc Reciprocal Easement and 10 Operation Agreement. Rather, the questions improperly sought to obtain private financial 11 information about purchase price paid by Iitke for his interest in the shopping center, the 12 foreclosure proceedings involving the property in 1990, Robert DeVineenzi’s percentage 13 ownership in Classic Bowl,4 the amount of rent paid by Classic Bowl, and the profitability of 14 Classic Bowl. 15 DBP’s refusal to allow discovery regarding private linaneial infonnation in this action, 16 which does not seek economic damages does not foreclose DJ3P from showing the irreparable 17 injury likely to result if King’s conduct is not enjoined. King now seeks a vague order 18 precluding DBP from introducing “evidence of such financial information.”5 19 DBP does not intend to introduce evidence of its financial condition, the financial 20 condition of its tenant Classic Bowl or the financial condition of DBP’s partners. 21 DBP will present evidence of the harm to DBP’s property and Classic if King is not 22 enjoined from violating the easement and preventing D13P from using the common area as 23 contemplated in the Reciprocal Easement and Operation Agreement. That has nothing to do with 24 4Robert DeVincenzi is a partner of DBP. 25 5None of the objections or statements made by counsel during the depositions can be construed to preclude DBP from introducing evidence supporting its claim for injunctive relief. The cases cited by King are inapposite. 26 Counsel’s statements were not a statement made during closing argument at trial endorsing the testimony of witness on direct examination about a credit against damages. (Fassberg Construction Co. v.housing Authority of City of 27 Los Angeles (2007) 152 Cal.App.4th 720, 752.) Nor can any statements be considered a stipulation or an agreement between counsel. (B/anton v. Woinencare, Inc. (1985)38 Cal.3d 396, 404.) In fact, “[a]n attorney is not authorized, 28 however, merely by virtue of his retention in litigation, to “impair the client’s substantial rights or the cause of action itself.” (Id.) Law Officesof Steveii B. Piser 3 0BPs OpposlToN To MoToNs IN LIMINE#1 AND #2 1 any of the financial matters King sought to inquire about which D[3P objected to in discovery. 2 LAW OFFICES OF S’I’EVEN 13. PISER A Professional Corporation 3 LAW OFFICES OF JOHN L, FITZGERALD 6 7 Dated: November 2O22 By: STE A Attorney N B. for PISER DBP [N VESTMENTS S 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Law Offices of Steveit B. Piser 4 10 MOTIONS IN lIMINE ill AND 12 DI3P’S OPPOSITION 1 PROOF OF SERVICE BY E-MAIL DBP Investments v. King Plaza Center and Related Cross-Action 2 San Mateo County Superior Court, Unlimited Jurisdiction Case #CW538897 3 4! I, Esperanza Izazaga, declare the following: 5 I am employed in Alameda County, California, am over eighteen years of age, and am not a party to the within action or proceeding. My business address is 1970 6’ Broadway, Suite 6oo, Oakland, California 94612. 7 On November 17, 2022, I served a copy of: 8 DBP’s OBJECTION To MOTIONS IN LIMINE #1 AND #2 9 by sending copies via electronic mail as follows 10 Co-Counselfor King Plaza Center, LLC Attorneysfor Bua-Quach, Sovan Lien, Steven D. McLellan Dong Vuong, Thanh Lai 11 Gates Eisenhart Dawson James M. Barrett 125 South Market Street, Suite 1200 Law Office ofJames M. Barrett 12 100 W. El Carnino Real, Suite 8’ San Jose, California 95113 Mountain View, California 94040 13 Telephone: (408) 288-8100 Telephone: (650) 969-3687 Facsimile: (408) 288-9409 Facsimile: (650) 969-3699 14 e-mail: sdmapedlaw.com e-mail: jb@jamesbarrettlaw.com 15 Attorneysfor King Plaza renter, LLC Co-Counselfor Plaintiffs Janet Fogarty John L. Fitzgerald 16 Law Office ofJanet Foqarty & Associates Law Offices ofJohn L. Fitzgerald 1126 Hillcrest Boulevard 177 Bovet Road, Suite 6oo 17 San Mateo, California 94402 Millbrae, California 94030 Telephone: (415) 689-1209 18 Telephone: (650) 652-5601 e-mail: johnjlfitzgeraldlawcom Facsimile: (650) 652-5604 19 e-mail: jfogartylawfinnyahoo.corn 20 I declare under penalty of perjury that the foregoing is Executed November 17, 2022, at Oakland, ifornia. 21 22 23 24 25 26 27 28 PROOF OF SERVICE By E-MML