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Harvey W. Wimer III, SBN 166326
hwimer@gravesandking.com F LE D I
[Q
BerhanymeBstz SlaPoEfiN'ngengaEmamm
brm avesandkm .com SAN BEPNARDWO DISTRICT
GRAVES & KING LLP OCT 14 2021
'Attomeys at Law
3610 Fourteenth Street, Second Floor
Riverside, California 92501-3 837
DIRECT ALL MAIL T0:
BY g2
G.
EH
R.WREADWAY, DEPUTY
;
._____
Post Office Box 1548
Riverside, California 92502- 1 S48 EXEMFr FROM FEES PER GOVT. CODE §6103
(95 1) 680-0100 / Fax (95 1) 680-0700
CITY OF VICTORVILLE
Attorneys for Defendants,
and SOUTHERN CALIFORNIA LOGISTICS AIRPORT AUTHORITY
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
11
COUNTY OF SAN BERNARDINO
KINSELL NEWCOMB & DEDIOS, INC., ) Case No.2 CIVDS 1703508
13 Plaintiff,
DEFENSE MOTION IN LIMINE N0.,3’ 2.
g
To PRECLUDE PLAINTIFF’S EXPERT,
)
14
VS.
STEVE SCHENK’S OPINIONS &
)
REPORT As To THE VALUE 0F
)
15
CITY OF VICTORVILLE, ct al.,
DAMAGES BASED 0N LACK 0F
)
FOUNDATION
16 )
Defendants'
Complaint filed: July 18, 2016
17 g
Assigned to: Hon. Donald Alvarez
) October 18, 2021
Trial date:
13
) Time: 10:00 a.m.
) Department: 8-23
Defendants, CITY OF VICTORVILLE and SOUTHERN CALIFORNIA LOGISTICS
AIRPORT AUTHORITY, hereby offer the following motion in limine for an order precluding
.
Plaintiff KINSELL NEWCOMB & DEDIOS, INC.’s (KND, INC.) expert witness, Steve Schenk
from offering his opinion concerning the alleged loss of business, lost profits and building valuation
that comprise KND INC.’s alleged damages it seeks in this action for breach of contract.
Mr. Schenk’s valuation is fundamentally flawed because it is based on the financial
documents of an entirely separate, independent corporate entity, KND Holdings, Inc., which is not a
named plaintiff in this lawsuit. The only plaintifi’ in this case is KND, INC. KND, INC. is 100%
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DEFENDANTS’ MOTION IN LIMINE NO. 3 — PRECLUDE EXPERT SCHENK’S OPINIONS
v \u
owned by Jefferey Kinsell. One-hundred percent (100%) of KND Holdings, Inc.’s shares are also
[‘0
owned by Jeffrey Kinsell, personally. KND, INC. is not a subsidiary or wholly owned corporation
of KND Holdings, Inc., because KND Holdings, Inc. owns no shares of KND INC.
Furthermore, to the extent that Schenk’s valuations are based on the consolidated amounts
of KND Holdings, Inc. and its purported “Subsidiaries”, such methodology is not an accepted
industry standard. It cannot and does not provide a valuation for KND, INC. alone. For example,
Mr. Schenk has used the tax returns for KND Holdings, Inc. and the purported “Subsidiaries” to
value KND INC.
Thus, the valuations calculated by Mr. Schenk should be excluded because the valuation
10 lacks foundation and because he relied on incompetent evidence in forming his calculations and
ll opinions and he used methodology outside the standards of the industry. The valuations and
opinions lack any basis for admissibility in this action because they are speculative opinions and
13 values as to KND, INC.’s losses purported incurred in this action.
14 This Motion will be made pursuant to Evidence Code §§ 350, 352, and 402 on the grounds
15 that any evidence, testimony or argument offered by KND, INC. claiming these damages, lacks
16 foundation, personal knowledge, is irrelevant, inadmissible, and prejudicial since the valuations are
l7 based on incompetent consolidated values, estimates and calculations of a nOn-plaintiff corporation
13 that is not legally entitled to recovery of damages in this case.
19 This motion is further based upon the attached memorandum of points and authorities, upon
all pleadings and documents filed in this matter, and upon any other oral and/or documentary
evidence that may be presented at the hearing of this motion.
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DEFENDANTS’ MOTION [N LIMINE N0. 3 — PRECLUDE EXPERT SCHENK’S OPINIONS
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Harvey W. Wimer III, SBN 166326 hwimer@gravesandking.com F LE D I [Q BerhanymeBstz SlaPoEfiN'ngengaEmamm brm avesandkm .com SAN BEPNARDWO DISTRICT GRAVES & KING LLP OCT 14 2021 'Attomeys at Law 3610 Fourteenth Street, Second Floor Riverside, California 92501-3 837 DIRECT ALL MAIL T0: BY g2 G. EH R.WREADWAY, DEPUTY ; ._____ Post Office Box 1548 Riverside, California 92502- 1 S48 EXEMFr FROM FEES PER GOVT. CODE §6103 (95 1) 680-0100 / Fax (95 1) 680-0700 CITY OF VICTORVILLE Attorneys for Defendants, and SOUTHERN CALIFORNIA LOGISTICS AIRPORT AUTHORITY SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 11 COUNTY OF SAN BERNARDINO KINSELL NEWCOMB & DEDIOS, INC., ) Case No.2 CIVDS 1703508 13 Plaintiff, DEFENSE MOTION IN LIMINE N0.,3’ 2. g To PRECLUDE PLAINTIFF’S EXPERT, ) 14 VS. STEVE SCHENK’S OPINIONS & ) REPORT As To THE VALUE 0F ) 15 CITY OF VICTORVILLE, ct al., DAMAGES BASED 0N LACK 0F ) FOUNDATION 16 ) Defendants' Complaint filed: July 18, 2016 17 g Assigned to: Hon. Donald Alvarez ) October 18, 2021 Trial date: 13 ) Time: 10:00 a.m. ) Department: 8-23 Defendants, CITY OF VICTORVILLE and SOUTHERN CALIFORNIA LOGISTICS AIRPORT AUTHORITY, hereby offer the following motion in limine for an order precluding . Plaintiff KINSELL NEWCOMB & DEDIOS, INC.’s (KND, INC.) expert witness, Steve Schenk from offering his opinion concerning the alleged loss of business, lost profits and building valuation that comprise KND INC.’s alleged damages it seeks in this action for breach of contract. Mr. Schenk’s valuation is fundamentally flawed because it is based on the financial documents of an entirely separate, independent corporate entity, KND Holdings, Inc., which is not a named plaintiff in this lawsuit. The only plaintifi’ in this case is KND, INC. KND, INC. is 100% - 1 - DEFENDANTS’ MOTION IN LIMINE NO. 3 — PRECLUDE EXPERT SCHENK’S OPINIONS v \u owned by Jefferey Kinsell. One-hundred percent (100%) of KND Holdings, Inc.’s shares are also [‘0 owned by Jeffrey Kinsell, personally. KND, INC. is not a subsidiary or wholly owned corporation of KND Holdings, Inc., because KND Holdings, Inc. owns no shares of KND INC. Furthermore, to the extent that Schenk’s valuations are based on the consolidated amounts of KND Holdings, Inc. and its purported “Subsidiaries”, such methodology is not an accepted industry standard. It cannot and does not provide a valuation for KND, INC. alone. For example, Mr. Schenk has used the tax returns for KND Holdings, Inc. and the purported “Subsidiaries” to value KND INC. Thus, the valuations calculated by Mr. Schenk should be excluded because the valuation 10 lacks foundation and because he relied on incompetent evidence in forming his calculations and ll opinions and he used methodology outside the standards of the industry. The valuations and opinions lack any basis for admissibility in this action because they are speculative opinions and 13 values as to KND, INC.’s losses purported incurred in this action. 14 This Motion will be made pursuant to Evidence Code §§ 350, 352, and 402 on the grounds 15 that any evidence, testimony or argument offered by KND, INC. claiming these damages, lacks 16 foundation, personal knowledge, is irrelevant, inadmissible, and prejudicial since the valuations are l7 based on incompetent consolidated values, estimates and calculations of a nOn-plaintiff corporation 13 that is not legally entitled to recovery of damages in this case. 19 This motion is further based upon the attached memorandum of points and authorities, upon all pleadings and documents filed in this matter, and upon any other oral and/or documentary evidence that may be presented at the hearing of this motion. /// /// /// /// /// /// l// _ 2 - DEFENDANTS’ MOTION [N LIMINE N0. 3 — PRECLUDE EXPERT SCHENK’S OPINIONS