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1 Richard W. Freeman, Jr (State Bar No. 50533)
Scott S Brooks (State Bar No. 267320)
2 WOOD, SMITH, HENNING & BERMAN LLP
1401 Willow Pass Road, Suite 700
3 Concord, California 94520-7982
Phone- 925 356 8200 • Fax: 925 356 8250
4
Attorneys for Defendant, R4C0RP, a California Corporation
5
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SACRAMENTO - UNLIMITED JURISDICTION
10
11 FLORENTINE AND RODNEY ABBOTT, CASE NO. 07AS04450
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< 8 CM N 12 Plaintiffs, MOTION IN LIMINE OF R4C0RP TO
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a: EXCLUDE DOCUMENTARY EVIDENCE
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m (/> Sg 13 V. NOT PRODUCED DURING DISCOVERY;
KS S cf^ 5
C3. MEMORANDUM OF POINTS AND
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Z s,w is 14 R4C0RP, a California Corporation, et al AUTHORITIES; [PROPOSED] ORDER
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15 Defendant.
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TrialDate: January 17, 2011
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AND RELATED CROSS-ACTIONS
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O 18 TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
19 PLEASE TAKE NOTICE that Defendant R4C0RP (hereinafter "R4C0RP") hereby
20 respectfully requests an order excluding any and all writings, as defined in Evidence
21 Code section 250, not previously identified or produced by the parties, as well as their
22 respective experts, and instructing the parties, their experts, and their counsel not to
23 examine any witness concerning such writing or evidence during the time oftrial
24 This motion is made on the grounds that admission into evidence of writings
25 and/or evidence not identified or produced during discovery or after the court-ordered
26 discovery cutoff would create a substantial danger of undue prejudice to R4C0RP in that
27 R4C0RP has not previously had the opportunity to review or evaluate such evidence,
28 examine witnesses or the authority for such evidence, or develop evidence to rebut such
LEGAL 05936-0065/1524071 1 .-j.
MOTION IN LIMINE OF R4C0RP TO EXCLUDE DOCUMENTARY EVIDENCE NOT PRODUCED
DURING DISCOVERY
1 evidence. R4C0RP hereby moves this Court for an Order precluding the introduction
2 into evidence of documents or other tangible things not previously produced and the
3 testimony of witnesses not previously identified by Piaintiffs
4 Defendant further moves this Court to instruct all parties and their counsel-
5 1. Not to mention, refer to, or attempt to convey to the jury in any manner,
6 either directly or indirectly, any ofthe facts or issues contained in this motion without first
7 obtaining permission ofthis court outside the presence and hearing of the jury;
8 2 Not to make any reference to the fact that this motion has been filed, and
9 3. To warn and caution each and every one of the witnesses to strictly follow
10 the same instruction.
11 This Motion is based upon the attached Memorandum of Points and Authorities, all
12 papers, pleadings and documents contained in the Court file and upon such other and
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13 further oral and documentary evidence as may be presented at the heanng of this matter
14 DATED: December " 7 , 2010 WOOD, SMITH, HENNING & BERMAN LLP
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^ %-< IH 16 (See Evid. Code, § 210.) The Court has the authority to exclude evidence if its probative
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o 17 value is ouhweighed by the probability that it will necessitate an undue consumption of
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18 time, create a substantial danger of undue prejudice, confuse the issues being presented,
19 or mislead the jury (See Evid Code, § 352.)
20 Although a motion in limine is not expressly authorized by statute, it is recognized
21 as a proper procedure by which the trial court may preclude the introduction or
22 presentation of evidence deemed inadmissible and prejudicial by the moving party. (See
23 People V. Morris (1991) 53 Cal 3d 152, 188; see also Hyatt v. Sierra Boat Co (1978) 79
24 Cal.App.3d 325, 337.) The advantage of a motion in limine is "to avoid the obviously
25 futile attempts to 'unring the bell' in the event a motion to strike is granted in the
26 proceedings before thejury." (Ibid ) In addition, by resolving potentially critical issues at
27 the outset, motions in limine enhance the efficiency of tnals (Ibid )
28 / / /
LEGAL 05936-0065/1524071 1 .3.
MOTION IN LIMINE OF R4C0RP TO EXCLUDE DOCUMENTARY EVIDENCE NOT PRODUCED
DURING DISCOVERY
1 III. INTRODUCTION INTO EVIDENCE AT TRIAL OF ANY DOCUMENTS OR
TANGIBLE THINGS NOT PREVIOUSLY PRODUCED OR ANY WITNESSES
2 NOT PREVIOUSLY IDENTIFIED SHOULD NOT BE ALLOWED
3 A motion in limine can be made to exclude evidence before it is offered at trial and
4 IS recognized as a proper request which the trial court has inherent power to grant
5 (Sacramento v. San Joaauin Drainage District (1963) 215 Cal App 2d 60, 66-68.) In this
6 case, Plaintiffs have produced various documents and evidence as part of the discovery
7 process However, R4C0RP believes that Plaintiffs may attempt to introduce into
8 evidence at trial documents that have not been produced in the course of discovery.
9 Such evidence is properly excluded from admission under California Evidence Code
10 section 352. Section 352 states that:
11 The court in its discretion may exclude evidence if its probative value is
12 substantially outweighed by the probability that its admission will (a)
UJ 13 necessitate undue consumption of time or (b) create substantial danger of
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14 undue prejudice, of confusing the issues, or misleading the jury.
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UJ E g 3 < D 15 To allow the introduction of evidence not previously produced and witnesses not
16 previously identified to R4C0RP would necessitate an extraordinary amount of time
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o B 17 during which R4C0RP would be forced to move the Court for multiple continuances
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18 during which to familiarize themselves with the newly introduced evidence. Such a
19 situation would extend the trial beyond the initial estimate for completion and would
20 consequently waste scarce judiciai resources
21 Furthermore, the introduction ofsuch evidence at trial would be unduly prejudicial
22 to R4C0RP It would be prejudicial to allow Plaintiffs to introduce evidence that has not
23 been produced in accordance with and as part ofthe discovery procedure under the
24 California Code of Civil Procedure. R4C0RP would be in a position where it would have
25 to familiarize itself with the new evidence offered by Piaintiffs. R4C0RP's counsel would
26 be forced to procure expert consultants on very short notice and would be hurried in such
27 a manner as to severely prejudice R4C0RP. Therefore, the introduction of documents or
28 other tangible things and the testimony of witnesses not previously identified by Plaintiffs
LEGAL 05936-0065/1524071 1 ,4.
MOTION IN LIMINE OF R4C0RP TO EXCLUDE DOCUMENTARY EVIDENCE NOT PRODUCED
DURING DISCOVERY
1 should not be allowed at the time of trial.
2 One of the principal purposes of civil discovery is to do away with "the sporting
3 theory of litigation - mainly, surprise at the trial." (Chronicle Publishing Co. v. Superior
4 Court of San Francisco (1960) 54 Cal 2d 548, 561.) The purpose is accomplished by
5 giving "greater assistance to the parties ascertaining the truth and in checking and
6 preventing perjury" and by providing "an effective means of detecting and exposing false,
7 fraudulent, and sham claims and defenses." (Greyhound Corp v Supenor Court of
8 Merced (1961) 56 Cal 2d 355, 376.) Furthermore, such orders have been endorsed by
9 the California Court of Appeal. (Thoren v. Johnston and Washer (1972) 29 Cal App3d
10 270; Deeterv. Angus (1972) 179 Cal App 3d 241.) By precluding the introduction of
11 evidence not produced during discovery, this Court will ensure that the purposes of civil
12 discovery are furthered by preventing surprise evidence.
Ul T S >" 13 IV. CONCLUSION
14 Based upon the above, R4C0RP respectfully requests this Court GRANT its
5 13 o: a: o
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15 motion to exclude evidence including writings and testimony not produced during
16 discovery and/or pursuant to court order.
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17 DATED: December 2 . . 2010 WOOD, SMITH, HENNING & BERMAN LLP
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19 By:
RICHARD W. FREEMAN, JR.
20 SCOTT S. BROOKS
Attorneys for Defendant, R4C0RP, a California
21 Corporation
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LEGAL 05936-0065/1524071 1
MOTION IN LIMINE OF R4C0RP TO EXCLUDE DOCUMENTARY EVIDENCE NOT PRODUCED
DURING DISCOVERY
Preview
1 Richard W. Freeman, Jr (State Bar No. 50533) Scott S Brooks (State Bar No. 267320) 2 WOOD, SMITH, HENNING & BERMAN LLP 1401 Willow Pass Road, Suite 700 3 Concord, California 94520-7982 Phone- 925 356 8200 • Fax: 925 356 8250 4 Attorneys for Defendant, R4C0RP, a California Corporation 5 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SACRAMENTO - UNLIMITED JURISDICTION 10 11 FLORENTINE AND RODNEY ABBOTT, CASE NO. 07AS04450 z < 8 CM N 12 Plaintiffs, MOTION IN LIMINE OF R4C0RP TO 5 ro u> a: EXCLUDE DOCUMENTARY EVIDENCE m r> m (/> Sg 13 V. NOT PRODUCED DURING DISCOVERY; KS S cf^ 5 C3. MEMORANDUM OF POINTS AND 5 <3 Q: Z s,w is 14 R4C0RP, a California Corporation, et al AUTHORITIES; [PROPOSED] ORDER z S-w U, tN 15 Defendant. UJ e g Q : O> TrialDate: January 17, 2011 H U ul 16 AND RELATED CROSS-ACTIONS 1 ? ". 5 17 Q % O O 18 TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 19 PLEASE TAKE NOTICE that Defendant R4C0RP (hereinafter "R4C0RP") hereby 20 respectfully requests an order excluding any and all writings, as defined in Evidence 21 Code section 250, not previously identified or produced by the parties, as well as their 22 respective experts, and instructing the parties, their experts, and their counsel not to 23 examine any witness concerning such writing or evidence during the time oftrial 24 This motion is made on the grounds that admission into evidence of writings 25 and/or evidence not identified or produced during discovery or after the court-ordered 26 discovery cutoff would create a substantial danger of undue prejudice to R4C0RP in that 27 R4C0RP has not previously had the opportunity to review or evaluate such evidence, 28 examine witnesses or the authority for such evidence, or develop evidence to rebut such LEGAL 05936-0065/1524071 1 .-j. MOTION IN LIMINE OF R4C0RP TO EXCLUDE DOCUMENTARY EVIDENCE NOT PRODUCED DURING DISCOVERY 1 evidence. R4C0RP hereby moves this Court for an Order precluding the introduction 2 into evidence of documents or other tangible things not previously produced and the 3 testimony of witnesses not previously identified by Piaintiffs 4 Defendant further moves this Court to instruct all parties and their counsel- 5 1. Not to mention, refer to, or attempt to convey to the jury in any manner, 6 either directly or indirectly, any ofthe facts or issues contained in this motion without first 7 obtaining permission ofthis court outside the presence and hearing of the jury; 8 2 Not to make any reference to the fact that this motion has been filed, and 9 3. To warn and caution each and every one of the witnesses to strictly follow 10 the same instruction. 11 This Motion is based upon the attached Memorandum of Points and Authorities, all 12 papers, pleadings and documents contained in the Court file and upon such other and ^^; 13 further oral and documentary evidence as may be presented at the heanng of this matter 14 DATED: December " 7 , 2010 WOOD, SMITH, HENNING & BERMAN LLP 5 c3 o: c o z a ^ %-< IH 16 (See Evid. Code, § 210.) The Court has the authority to exclude evidence if its probative w D' o 17 value is ouhweighed by the probability that it will necessitate an undue consumption of o 18 time, create a substantial danger of undue prejudice, confuse the issues being presented, 19 or mislead the jury (See Evid Code, § 352.) 20 Although a motion in limine is not expressly authorized by statute, it is recognized 21 as a proper procedure by which the trial court may preclude the introduction or 22 presentation of evidence deemed inadmissible and prejudicial by the moving party. (See 23 People V. Morris (1991) 53 Cal 3d 152, 188; see also Hyatt v. Sierra Boat Co (1978) 79 24 Cal.App.3d 325, 337.) The advantage of a motion in limine is "to avoid the obviously 25 futile attempts to 'unring the bell' in the event a motion to strike is granted in the 26 proceedings before thejury." (Ibid ) In addition, by resolving potentially critical issues at 27 the outset, motions in limine enhance the efficiency of tnals (Ibid ) 28 / / / LEGAL 05936-0065/1524071 1 .3. MOTION IN LIMINE OF R4C0RP TO EXCLUDE DOCUMENTARY EVIDENCE NOT PRODUCED DURING DISCOVERY 1 III. INTRODUCTION INTO EVIDENCE AT TRIAL OF ANY DOCUMENTS OR TANGIBLE THINGS NOT PREVIOUSLY PRODUCED OR ANY WITNESSES 2 NOT PREVIOUSLY IDENTIFIED SHOULD NOT BE ALLOWED 3 A motion in limine can be made to exclude evidence before it is offered at trial and 4 IS recognized as a proper request which the trial court has inherent power to grant 5 (Sacramento v. San Joaauin Drainage District (1963) 215 Cal App 2d 60, 66-68.) In this 6 case, Plaintiffs have produced various documents and evidence as part of the discovery 7 process However, R4C0RP believes that Plaintiffs may attempt to introduce into 8 evidence at trial documents that have not been produced in the course of discovery. 9 Such evidence is properly excluded from admission under California Evidence Code 10 section 352. Section 352 states that: 11 The court in its discretion may exclude evidence if its probative value is 12 substantially outweighed by the probability that its admission will (a) UJ 13 necessitate undue consumption of time or (b) create substantial danger of m «2S 14 undue prejudice, of confusing the issues, or misleading the jury. Z "coOS UJ E g 3 < D 15 To allow the introduction of evidence not previously produced and witnesses not 16 previously identified to R4C0RP would necessitate an extraordinary amount of time o O F o B 17 during which R4C0RP would be forced to move the Court for multiple continuances o 18 during which to familiarize themselves with the newly introduced evidence. Such a 19 situation would extend the trial beyond the initial estimate for completion and would 20 consequently waste scarce judiciai resources 21 Furthermore, the introduction ofsuch evidence at trial would be unduly prejudicial 22 to R4C0RP It would be prejudicial to allow Plaintiffs to introduce evidence that has not 23 been produced in accordance with and as part ofthe discovery procedure under the 24 California Code of Civil Procedure. R4C0RP would be in a position where it would have 25 to familiarize itself with the new evidence offered by Piaintiffs. R4C0RP's counsel would 26 be forced to procure expert consultants on very short notice and would be hurried in such 27 a manner as to severely prejudice R4C0RP. Therefore, the introduction of documents or 28 other tangible things and the testimony of witnesses not previously identified by Plaintiffs LEGAL 05936-0065/1524071 1 ,4. MOTION IN LIMINE OF R4C0RP TO EXCLUDE DOCUMENTARY EVIDENCE NOT PRODUCED DURING DISCOVERY 1 should not be allowed at the time of trial. 2 One of the principal purposes of civil discovery is to do away with "the sporting 3 theory of litigation - mainly, surprise at the trial." (Chronicle Publishing Co. v. Superior 4 Court of San Francisco (1960) 54 Cal 2d 548, 561.) The purpose is accomplished by 5 giving "greater assistance to the parties ascertaining the truth and in checking and 6 preventing perjury" and by providing "an effective means of detecting and exposing false, 7 fraudulent, and sham claims and defenses." (Greyhound Corp v Supenor Court of 8 Merced (1961) 56 Cal 2d 355, 376.) Furthermore, such orders have been endorsed by 9 the California Court of Appeal. (Thoren v. Johnston and Washer (1972) 29 Cal App3d 10 270; Deeterv. Angus (1972) 179 Cal App 3d 241.) By precluding the introduction of 11 evidence not produced during discovery, this Court will ensure that the purposes of civil 12 discovery are furthered by preventing surprise evidence. Ul T S >" 13 IV. CONCLUSION 14 Based upon the above, R4C0RP respectfully requests this Court GRANT its 5 13 o: a: o z aw o S 15 motion to exclude evidence including writings and testimony not produced during 16 discovery and/or pursuant to court order. w .- z o . oO£ Q ^u g O t! 17 DATED: December 2 . . 2010 WOOD, SMITH, HENNING & BERMAN LLP o 18 19 By: RICHARD W. FREEMAN, JR. 20 SCOTT S. BROOKS Attorneys for Defendant, R4C0RP, a California 21 Corporation 22 23 24 25 26 27 28 LEGAL 05936-0065/1524071 1 MOTION IN LIMINE OF R4C0RP TO EXCLUDE DOCUMENTARY EVIDENCE NOT PRODUCED DURING DISCOVERY