Preview
I
MarkE. Ellis-127159
2 Richard H. Hart, Jr. - 058793
Omid Shabani - 267447
3 ELLIS LAW GROUP, LLP
1425 River Park Drive, Suite 400
4 Sacramento, CA 95815
Tel: (916) 283-8820
5 Fax: (916) 283-8821
6 Attomeys for Defendant Dr. James Longoria
7
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
COUNTY OF SACRAMENTO
10
11
CHARLES SOMERS, individually and as CaseNo.: 34-2018-00229212
12 tt^stee for the CHARLES SOMERS LIVING
TRUST, [PROPOSED] ORDER GRANTING
13 DEFENDANT DR. JAMES LONGORIA'S
Plaintiff, OBJECTIONS TO EVIDENCE IN
14 SUPPORT OF MOTION FOR SUMMARY
JUDGMENT/SUMMARY ADJUDICATION
15
DR. JAMES LONGORIA, an individual and DATE: April 7,2023
16 DOES l-IO, TIME: 9:00 a.m.
DEPT: 39
17 Defendant.
18 Date Complaint Filed: March 16, 2018
Trial Date: Trial set for October 16, 2023
19
20
Having reviewed the objections submitted by Defendant DR. JAMES LONGORIA to the
21
evidence provided by Plaintiff CHARLES SOMERS, individually and as tmstee for the CHARLES
22
SOMERS LIVING TRUST, in support of its motion for summary judgment, or in the altemative,
23
summary adjudication, the Court mles as follows:
24
25
26
27
28
[PROPOSED] ORDER RE: DEFENDANT DR. JAMES LONGORIA'S OBJECTIONS TO EVIDENCE
1 DEFENDANT'S OBJECTION(S) T O E V I D E N C E
2 I. PLAINTIFF'S EXHIBIT 1 - DECLARATION OF WILLIAM R. WARNE IN
3 SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR
SUMMARU JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY
4 ADJUDICATION
5
Material Objected to: Grounds for pbjection(s): Ruling on Objection:
6
1. Exhibit C attached to the Lack of Foundation. Evid. Sustained:
7 Declaration of William R. Code § 702.
Wame.
8 Lack of Personal Overmled:
Declaration of William Wame Knowledge. Evid. Code §
9 ("Warne Decl."), Exhibit 403; Sierra Managed Asset
("Exh.") C. Plan, LLC v. Hale (Cal.
10 Super. Ct. 2015) 240
CaI.App.4th Supp. I , 9; see JUDGE SOUTHWORTH
II also, Kramer v. Barnes (1963)
212 CaI.App.2d 440, 446.
12
Secondary Evidence Rule.
13 Evid. Code §§ 1521,1523.
14 Inadmissible Hearsay. Evid.
15 Code §§ 170,210,400-403,
405, 702,1200,1271,1400-
16 1401,1520-1521.
17 Insufficient Evidence That
Records Were Made In
18 Regular Course Of Business
As Part Of The Particular
19 Business, Occupation, or
Calling. Evid. Code §
20 1271(a); Prato-Morrison v.
Doe (2002) 103 Cal.App.4th
21 222,229.
22 Insufficient Authentication.
Evid. Code § 1400-1401;
23 Hayman v. Block (\986) 176
Cal. App. 3d 629, 638-639
24 ("Personal knowledge and
competency must be shovra in
25 the supporting and opposing
affidavits and declarations.
26 The affidavits must cite
evidentiary facts, not legal
27 conclusions or 'ultimate'
facts.") (intemal citations
28 omitted).
2-
[PROPOSED] ORDER RE: DEFENDANT DR. JAMES LONGORIA'S OBJECTIONS TO EVIDENCE
I
Insufficient Explanation of
2 Mode of Preparation. Evid.
Code § 1271(c).
3
Insufficient Explanation as
4 to Reliability of Data. Evid.
Code § 1271(d).
5
6
7
8
9
10 II. PLAINTIFF'S EXHIBIT 2 - DECLARATION OF PLAINTIFF CHARLES SOMERS
11 IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR
SUMMARU JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY
12 ADJUDICATION
13
2. "the Affordable Care Act's Improper Legal Sustained:
14 passage in 2010 essentially Conclusion. Hayman v.
made illegal the creation of Block(1986) 176
15 physician-owned CaI.App.3rd 629, 638-639 Overmled:
hospitals." "affidavits must cite
16 evidentiary facts, not legal
Declaration of Charles Somers in conclusions or 'ultimate'
17 Support of Opposition to facts").
Defendant's MSJ / MSA ("Somers JUDGE SOUTHWORTH
18 Decl.") 13, p. 2:13-14. Lacks Foundation. Evid.
Code § 702.
19
Improper Speculation.
20 Evid. Code, §§ 400,403,
410; See also, Kramer v.
21 Barnes (\96'}>)2U
Cal.App.2d 440, 446
22 ("Affidavits which set forth
only conclusions, opinions or
23 ultimate facts are
insufficient.").
24
25
26
27
28
3-
[PROPOSED] ORDER RE: DEFENDANT DR. JAMES LONGORIA'S OBJECTIONS TO EVIDENCE
I
3. "At some point in our Lacks Foundation. Evid. Sustained:
2 friendship (I cannot Code § 702.
remember the exact
3 timeframe) Longoria told Inadmissible Hearsay Not Overmled:
me that he was involved Falling Within an
4 with patenting certain Exception. Evid. Code S
medical devices and 1200,1271,1400-1401,
5 surgery processes that he 1520-1521.
claimed would JUDGE SOUTHWORTH
6 revolutionize certain hear improper Speculation.
surgeries." Evid. Code, §§ 400,403,
7 410.
Somers Decl. f 4, p. 2:15-17.
8 Irrelevant evidence. Evid.
Code § 350.
9
10
4. "In July or August of 2013, Lacks Foundation. Evid. Sustained:
11 Longoria and his business Code § 702.
partner, Roy Chin ('Chin'),
12 came to SBM to pitch me Improper Speculation. Overmled:
on investing in their Evid. Code, §§ 400,403,
13 medical device company, 410.
then known as Intrepid
14 Medical and later renamed Inadmissible Hearsay Not
to LC Therapeutics Falling Within an JUDGE SOUTHWORTH
15 ('LCT')." Exception. Evid. Code SS
1200,1271,1400-1401,
16 Somers Decl. f 4, p. 2:17-20. 1520-1521.
17 Improper Legal
Conclusion. Havman v.
18 Block(1986) 176
Cal.App.3rd 629, 638-639
19 ("affidavits must cite
evidentiary facts, not legal
20 conclusions or 'ultimate'
facts").
21
5. " I seriously considered their Lacks Foundation. Evid. Sustained:
22 Code § 702.
request for funding."
23 Inadmissible Hearsay Not Overmled:
Somers Decl. % 5, p. 2:21. Falling Within an
24 Exception. Evid. Code SS
170,210,400-403,405,702,
25 1200,1271,1400-1401,
1520-1521. JUDGE SOUTHWORTH
26
Improper Speculation.
27 Evid. Code, §§ 400, 403,
410.
28
4-
[PROPOSED] ORDER RE: DEFENDANT DR. JAMES LONGORIA'S OBJECTIONS TO EVIDENCE
I
6. "Initially, I preferred the Lacks Foundation. Evid. Sustained:
2 idea of loaning money to Code § 702.
3 LCT on conventional terms, Inadmissible Hearsay Not Overmled:
including repayment Falling Within an
4 according to a specified Exception. Evid. Code §§
schedule with interest in 170,210, 400-403, 405, 702,
5 accordance with a note." 1200,1271,1400-1401,
1520-1521. JUDGE SOUTHWORTH
6 Somers Decl. f 6, p. 2:23-24.
7
8 Lacks Foundation. Evid. Sustained:
7. "In fact, Longoria told me
that if the company needed Code § 702.
9
additional funding, I could Inadmissible Hearsay Not Overmled:
10 then purchase additional Falling Within an
equity to whatever extent I Exception. Evid. Code §§
11 was interested." 1271,1400-1401,1520-1521.
12 Improper Speculation. JUDGE SOUTHWORTH
Somers Decl. % 6, p. 2:27 - 3:2.
Evid. Code, §§ 400,403,
13 410.
14 Probative Value Is
Substantially Outweighed
15 bv the Probability That
Admission of Evidence Will
16 Create Substantial Danger
of Undue Prejudice or of
17 Confusing the Issues. Evid.
Code, § 352. The testimony
18 is based on an incomplete
hypothetical.
19
20 Contradicted by Prior Sustained:
8. "If not for Longoria's
various representations to Deposition Testimony.
21 D 'Amico V. Board of Medical
me, I would not have Examiners (\974) II Cal.3d Overmled:
22 invested in LCT." 1,21. 5ee, Deposition of
23 Charles Somers ("Somers
Somers Decl. f 7, p. 3:3-4. Depo."), p. 64:7-23.
24
Lacks Foundation. Evid. JUDGE SOUTHWORTH
25 Code § 702.
26 Inadmissible Hearsay Not
Falling Within an
27 Exception. Evid. Code §§
1200,1271,1400-1401,
28 1520-1521.
[PROPOSED] ORDER RE: DEFENDANT DR. JAMES LONGORIA'S OBJECTIONS TO EVIDENCE
1 Improper Speculation.
Evid. Code, §§ 400,403,
2 410.
3 Probative Value Is
Substantially Outweighed
4 by the Probability That
Admission of Evidence Will
5 Create Substantial Danger
of Confusing the Issues.
6 Evid. Code, § 352. The
testimony is based on an
7 incomplete hypothetical. The
witness does not identify
8 which representations are
being referenced, while the
9 operative Second Amended
Complaint ("SAC"), inter
10 alia, contains three causes of
action for negligent
11 misrepresentation.
12
9. "Ultimately, my CFO, Ken Lacks Foundation. Evid. Sustained:
13 Code § 702.
Silva ("Silva"), and I agreed
14 that it would befinefor Inadmissible Double Overmled:
LCT to stay a subchapter S Hearsay Not Falling Within
15 corporation to start with an Exception. Evid. Code
because Longoria claimed §§ 1200,1271,1400-1401,
16 to me that LCT would be 1520-1521.
profitable within 12 months JUDGE SOUTHWORTH
17 Improper Speculation.
of its start."
Evid. Code, §§ 400,403,
18 410.
Somers Decl. f 7, p. 3:6-8.
19 Improper Legal
Conclusion. Hayman v.
20 Block(1986)176
Cal.App.3rd 629, 638-639.
21
22 10. " I never agreed that the Lacks Foundation. Evid. Sustained:
company should remain a Code § 702.
23 subchapter S corporation
forever and always Inadmissible Hearsay Not Overmled:
24 expected that Longoria Falling Within an
would follow through with Exception. Evid. Code §§
25 his repeated promises to 1200,1271,1400-1401,
convert LCT to an LLC." 1520-1521. Hayman v. Block
26 (1986) 176 Cal.App.3d 629, JUDGE SOUTHWORTH
Somers Decl. f 7, p. 3:9-11. 638-639.
27
28
-6
[PROPOSED] ORDER RE: DEFENDANT DR. JAMES LONGORIA'S OBJECTIONS TO EVIDENCE
1
11. "I explained to Longoria Lacks Foundation. Evid. Sustained:
2 that I had already invested Code § 702.
$2 million, that LCT was
3 failing, and that / would Inadmissible Hearsay Not Overmled:
onlv agree to more funding Falling Within an
4 if I had a full seat at the Exception. Evid. Code SS
table" 1200,1271, 1400-1401,
5 1520-1521.
Somers Decl. f 9, p. 3:22-23 JUDGE SOUTHWORTH
6 (emphasis added). Improper Legal
Conclusion. Hayman v.
7 Block(1986)176
Cal.App.3rd 629, 638-639.
8
9
10
11
12. "Longoria agreed, telling Lacks Foundation. Evid. Sustained:
12 me that if I agreed to Code § 702.
provide additional equity
13 financing, I would replace Inadmissible Hearsay Not Overmled:
Chin on the board and have Falling Within an
14 equal control over all Exception. Evid. Code SS
company decisions; he said 1200,1271,1400-1401,
15 we would immediately be 1520-1521.
partners, with equal control JUDGE SOUTHWORTH
16 of LCT." Improper Speculation.
Evid. Code, §§ 400, 403,
17 Somers Decl. f 10, p. 3:24-26. 410.
18 Improper Legal
Conclusion. Hayman v.
19 Block(1986)176
CaI.App.3rd 629, 638-639.
20
21
22
23
13. "Longoria also promised Lacks Foundation. Evid. Sustained:
24 me that if I agreed to Code § 702.
provide additional funding,
25 LCT would pay me back Inadmissible Hearsay Not Overmled:
first, a concept we Falling Within an
26 repeatedly confirmed while Exception. Evid. Code SS
in Hawaii and afterwards, 1200,1271,1400-1401,
27 using the phrase, 'First 1520-1521.
money in, first money JUDGE SOUTHWORTH
28 out.'" Improper Speculation.
Evid. Code, §§ 400,403,
[PROPOSED] ORDER RE: DEFENDANT DR. JAMES LONGORIA'S OBJECTIONS TO EVIDENCE
1 Somers Decl. f 11, p. 4:1-3. 410.
2 Improper Legal
Conclusion. Hayman v.
3 Block(1986)176
CaI.App.3rd 629, 638-639.
4
5
6
7 14. "We also agreed that I Lacks Foundation. Evid. Sustained:
could decide to buy Code § 702.
8 additional equity or to
make loans if the company Inadmissible Hearsay Not Overmled:
9 needed additional funding, Falling Within an
and that i f i was not so Exception. Evid. Code SS
10 inclined, the company 1200,1271,1400-1401,
would seek outside 1520-1521. Hayman v. Block
II funding." (1986) 176 CaI.App.3d 629, JUDGE SOUTHWORTH
638-639.
12 Somers Decl. f 11, p. 4:3-5.
Improper Speculation.
13 Evid. Code, §§ 400,403,
410.
14
15 15. "In light of Longoria's Lacks Foundation. Evid. Sustained:
representations to me in Code § 702.
16 Hawaii, I was interested,
and we continued to discuss Inadmissible Hearsay Not Overmled:
17 the matter through Falling Within an
December 2014 and into Exception. Evid. Code SS
18 January 2015." 1200,1271,1400-1401,
1520-1521.
19 Somers Decl. f 12, p. 4:6-7 JUDGE SOUTHWORTH
(emphasis added). Improper Speculation.
20 Evid. Code, §§ 400,403,
21 410.
22
16. "Longoria also repeatedly Lacks Foundation. Evid. Sustained:
23 confirmed he would give Code § 702.
me co-equal control,
24 authority, and ownership in Inadmissible Hearsay Not Overmled:
exchange for funding the Falling Within an
25 company." Exception. Evid. Code SS
1200,1271,1400-1401,
26 Somers Decl. ^ 12, p. 4:8-10. . 1520-1521.
JUDGE SOUTHWORTH
27 Improper Speculation.
Evid. Code, §§ 400,403,
28 410.
[PROPOSED] ORDER RE: DEFENDANT DR. JAMES LONGORIA'S OBJECTIONS TO EVIDENCE
1
Improper Legal
2 Conclusion. Hayman v.
Block(1986)176
3 Cal.App.3rd 629, 638-639.
4
5
6
7 17. "I commenced this lawsuit Lacks Foundation. Evid. Sustained:
by filing a complaint in Code § 702.
8 early 2018 and, later that
year, I learned that I had Inadmissible Double Overmled:
9 been cc'd on an email on Hearsay Not Falling Within
December 15, 2014. which an Exception. Evid. Code
10 attached an unsigned §§ 1200,1271,1400-1401,
'Action by Consent of the 1520-1521.
11 Sole Director'of LCT" JUDGE SOUTHWORTH
Secondary Evidence Rule.
12 Somers Decl. ^ 13, p. 4:11-14 Evid. Code §§ 1521,1523.
(emphasis added).
13
14
18. "In reviewing this email Lacks Foundation. Evid. Sustained:
15 after the fact, I understand Code § 702.
it to have been an effort by
16 Longoria to ensure that the Inadmissible Hearsay Not Overmled:
business of LCT could Falling Within an
17 continue to fimction after Exception. Evid. Code SS
its CEO, Chin, resigned." 1200,1271,1400-1401,
1520-1521. Hayman v. Block
18 (1986) 176 Cal.App.3d 629,
Somers Decl. f 14, p. 4:16-18. JUDGE SOUTHWORTH
638-639.
19
20 Secondary Evidence Rule.
Evid. Code §§ 1521,1523.
21
Improper Speculation.
22 Evid. Code, §§ 400, 403,
410.
23
Improper Legal
24 Conclusion. Havman v.
Block(1986)176
25 Cal.App.3rd 629, 638-639.
26
27
28
[PROPOSED] ORDER RE: DEFENDANT DR. JAMES LONGORJA'S OBJECTIONS TO EVIDENCE
1
19. "The company needed to Lacks Foundation. Evid. Sustained:
2 be able to pay vendors and Code § 702.
work with its bank."
3 Inadmissible Hearsay Not Overmled:
Somers Decl. f 14, p. 4:18. Falling Within an
4 Exception. Evid. Code SS
1200,1271,1400-1401,
5 1520-1521.
JUDGE SOUTHWORTH
6 Improper Speculation.
Evid. Code, §§ 400, 403,
7 410.
8
9
20. "Thus, someone needed to Lacks Foundation. Evid. Sustained:
10 be appointed to the officer Code § 702.
positions immediately."
II Inadmissible Hearsay Not Overmled:
Somers Decl. f 14, p. 4:18-19. Falling Within an
12 Exception. Evid. Code SS
1200,1271,1400-1401,
13 1520-1521.
JUDGE SOUTHWORTH
14 Secondary Evidence Rule.
15 Evid. Code §§ 1521,1523.
16 Improper Speculation.
Evid. Code, §§ 400, 403,
17 410.
18 Improper Legal
Conclusion. Hayman v.
19 Block(1986)176
CaI.App.3rd 629, 638-639.
20
21 21. "Although this unsigned Lacks Foundation. Evid. Sustained:
resolution identified Code § 702.
22 Longoria as the sole
director and officer of Inadmissible Hearsay Not Overmled:
23 LCT, I would not have Falling Within an
been surprised or worried Exception. Evid. Code SS
24 had I seen this resolution in 1200,1271,1400-1401,
December 2014." 1520-1521.
25 JUDGE SOUTHWORTH
Somers Decl. 114, p. 4:19-21 Secondary Evidence Rule.
26 (emphasis in original). Evid. Code §§ 1521,1523.
27 Improper Speculation.
Evid. Code, §§ 400,403,
28 410.
10
[PROPOSED] ORDER RE: DEFENDANT DR. JAMES LONGORIA'S OBJECTIONS TO EVIDENCE
I
2
3
4
5
6
7 22. "At the point, I had not yet Lacks Foundation. Evid. Sustained:
invested additional funds Code § 702.
8 into LCT and thus would
not have expected Longoria Inadmissible Hearsay Not Overmled:
9 to have already fulfilled his Falling Within an
promise to appoint me to Exception. Evid. Code SS
10 Chin's board spot." 1200,1271,1400-1401,
1520-1521.
II Somers Decl. f 14, p. 4:21-23 JUDGE SOUTHWORTH
(emphasis added). Improper Speculation.
12 Evid. Code, §§ 400, 403,
410.
13
14
23. "That Longoria later Lacks Foundation. Evid. Sustained:
15 grasped at this resolution as Code § 702.
proof that I had no role in
16 LCT, other than as only a Inadmissible Hearsay Not Overmled:
shareholder, demonstrates Falling Within an
17 to me that Longoria would Exception. Evid. Code SS
say or do anything to get 1200, 1271,1400-1401,
18 me to fund LCT, and that 1520-1521.
he never intended to make JUDGE SOUTHWORTH
19 me a board director or tmly Improper Speculation.
share equal control of the Evid. Code, §§ 400,403,
20 company." 410.
21 Somers Decl. f 14, p. 4:23-26. Secondary Evidence Rule.
22 Evid. Code §§ 1521,1523.
23 Improper Legal
Conclusion. Hayman v.
24 Block(1986) 176
Cal.App.3rd 629, 638-639.
25
26
27
28
11
[PROPOSED] ORDER RE: DEFENDANT DR. JAMES LONGORIA'S OBJECTIONS TO EVIDENCE
1
24. " I now believe that Lacks Foundation. Evid. Sustained:
2 Longoria intentionally Code § 702.
refrained from amending
3 the December 2014 Inadmissible Hearsay Not Overmled:
resolution so that he could Falling Within an
4 keep exclusive confrol over Exception. Evid. Code §§
LCT." 1200,1271,1400-1401,
5 1520-1521.
Somers Decl. f 14, p. 4:23-26. JUDGE SOUTHWORTH
6 Improper Speculation.
Evid. Code, §§ 400, 403,
7 410; Kramer v. Barnes
(1963) 212 Cal.App.2d 440,
8 446 ("Affidavits which set
forth only conclusions,
9 opinions or ultimate facts are
insufficient.").
10
Secondary Evidence Rule.
II Evid. Code §§ 1521,1523.
12
Improper Legal
13 Conclusion. Hayman v.
Block(\986) 176
14 CaI.App.3rd 629, 638-639.
15 25. "In January 2015, and onlv Lacks Foundation. Evid. Sustained:
because ofLonsoria's Code § 702.
16 repeated representations
and assurances, I Inadmissible Hearsay Not Overmled:
17 instmcted Silva to proceed Falling Within an
with the paperwork to fund Exception. Evid. Code §§
18 LCT with another $1,335 1200,1271,1400-1401,
million investment from 1520-1521. Hayman v. Block
19 my living tmst." (1986) 176 CaI.App.3d 629, JUDGE SOUTHWORTH
638-639.
20 Somers Decl. ^ 15, p. 5:1-3
(emphasis added).
21
22
23
26. "Taking over Chin's role Lacks Foundation. Evid. Sustained:
24 and moving from Code § 702.
shareholder to what
25 Longoria referred to as his Inadmissible Hearsay Not Overmled:
full 'partner' would finally Falling Within an
26 give me the type of Exception. Evid. Code §§
directional control I 1200,1271,1400-1401,
27 required before investing 1520-1521.
even more money in a JUDGE SOUTHWORTH
28 company that had no Improper Speculation.
12
[PROPOSED] ORDER RE: DEFENDANT DR. JAMES LONGORIA'S OBJECTIONS TO EVIDENCE
I demonstrated history of Evid. Code, §§ 400,403,
success and that was failing 410; Kramer v. Barnes
2 to meet the key milestones (1963) 212 Cal.App.2d 440,
of its own business plan." 446 ("Affidavits which set
3 forth only conclusions,
Somers Decl. f 15, p. 5:3-6. opinions or ultimate facts are
4 insufficient.").
5 Improper Legal
Conclusion. Havman v.
6 Block(1986)176
Cal.App.3rd 629, 638-639.
7
8 27. "From my viewpoint, Lacks Foundation. Evid. Sustained:
Longoria was distracted by Code § 702.
9 his medical practice and
failing to tiend to his duties Inadmissible Hearsay Not Overmled:
10 as CEO and secretary of Falling Within an
the company." Exception. Evid. Code SS
11 1200,1271,1400-1401,
Somers Decl. f 16, p. 5:8-9. 1520-1521.
12 JUDGE SOUTHWORTH
Improper Speculation.
13 Evid. Code, §§ 400,403,
410; Kramer v. Barnes
14 (1963) 212 CaI.App.2d 440,
446 ("Affidavits which set
15 forth only conclusions,
opinions or ultimate facts are
16 insufficient.").
17
18
19 28. "At the end of 2015, even Lacks Foundation. Evid. Sustained:
though I, through my living Code § 702.
20 tmst, had already invested
$3,335 million in less than Inadmissible Hearsay Not Overmled:
21 two years' time, LCT was Falling Within an
not close to making a profit Exception. Evid. Code SS
22 and still in dire need of 1200,1271,1400-1401,
additional cash." 1520-1521.
23
JUDGE SOUTHWORTH
24 Somers Decl. f 16, p. 5:9-11. Improper Speculation.
Evid. Code, §§ 400,403,
25 410; Kramer v. Barnes
(1963) 212 Cal.App.2d 440,
26 446 ("Affidavits which set
forth only conclusions,
27 opinions or ultimate facts are
insufficient.").
28
Improper Legal
13
[PROPOSED] ORDER RE: DEFENDANT DR. JAMES LONGORIA'S OBJECTIONS TO EVIDENCE
I Conclusion. Hayman v.
Block(1986)176
2 CaI.App.3rd 629, 638-639.
3 Improper Expert Opinion.
Evid. Code § 801.
4
5
6
7 29. "In late 2015, When [5/c] Lacks Foundation. Evid. Sustained:
Longoria approached me Code § 702.
8 for even more fimding, he
abandoned his earlier Inadmissible Hearsay Not Overmled:
9 promise to allow me to Falling Within an
fund the company through Exception. Evid. Code §§
10 the purchase of additional 1200,1271,1400-1401,
equity." 1520-1521.
II JUDGE SOUTHWORTH
Somers Decl. f 17, p. 5:12-13. Improper Speculation.
12 Evid. Code, §§ 400,403,
410; Kramer v. Barnes
13 (1963) 212 Cal.App.2d 440,
446 ("Affidavits which set
14 forth only conclusions,
opinions or ultimate facts are
15 insufficient.").
16
30. "Instead, he now told me Lacks Foundation. Evid. Sustained:
17 that he wanted to remain a Code § 702.
50% owner of the company
18 so that the two of us would Inadmissible Hearsay Not Overmled:
remain co-equals of Falling Within an
19 company control." Exception. Evid. Code §§
1200,1271,1400-1401,
20 Somers Decl. f 17, p. 5:14-15. 1520-1521.
21 JUDGE SOUTHWORTH
Improper Speculation.
22 Evid. Code, §§ 400,403,
410; Kramer v. Barnes
23 (1963) 212 Cal.App.2d 440,
446 ("Affidavits which set
24 forth only conclusions,
opinions or ultimate facts are
25 insufficient.").
26 Improper Legal
Conclusion. Hayman v.
27 Block(1986)176
Cal.App.3rd 629, 638-639.
28
14-
[PROPOSED] ORDER RE: DEFENDANT DR. JAMES LONGORIA'S OBJECTIONS TO EVIDENCE
I Improper Expert Opinion.
Evid. Code § 801.
2
3
4
5
6
7 31. "Longoria said that he did Lacks Foundation. Evid. Sustained:
not want to "work for" me, Code § 702.
8 he did not want to lose his
50% interest in LCT, and Inadmissible Hearsay Not Overmled:
9 he wanted us to remain Falling Within an
equals." Exception. Evid. Code §§
10 1200,1271,1400-1401,
Somers Decl. f 17, p. 5:15-16. 1520-1521.
11 JUDGE SOUTHWORTH
Improper Speculation.
12 Evid. Code, §§ 400, 403,
410; Kramer v. Barnes
13 (1963) 212 CaI.App.2d 440,
446 ("Affidavits which set
14 forth only conclusions,
opinions or ultimate facts are
15 insufficient.").
16 Improper Legal
Conclusion. Hayman v.
17 Block (\986) 176
CaI.App.3rd 629, 638-639.
18
19 32. "Longoria thus urged me to Contradicted by Prior Sustained:
agree to provide any Deposition Testimony.
20 additional money in the D 'Amico V. Board of Medical
form of loans." Examiners (1974) II Cal.3d Overmled:
21 1, 21. See, e.g., Somers
Somers Decl. f 17, p. 5:16-17. Depo., pp. 127:6 - 130:7.
22
Lacks Foundation. Evid.
23
Code § 702. JUDGE SOUTHWORTH
24
Inadmissible Hearsay Not
25 Falling Within an
Exception. Evid. Code §§
26 1200,1271,1400-1401,
1520-1521.
27
Improper Legal
28 Conclusion. Hayman v.
^/oci^(1986) 176
15-
[PROPOSED] ORDER RE: DEFENDANT DR. JAMES LONGORIA'S OBJECTIONS TO EVIDENCE
1 CaI.App.3rd 629, 638-639.
2
3
4
5
6
7 33. "At that time, Longoria Lacks Foundation. Evid. Sustained:
repeated his promise that Code § 702.
8 he and I would share
control and participate Inadmissible Hearsay Not Overmled:
9 equally in all decisions." Falling Within an
Exception. Evid. Code SS
10 Somers Decl. f 17, p. 5:17-19. 1200,1271,1400-1401,
1520-1521.
11 JUDGE SOUTHWORTH
Improper Legal
12 Conclusion. Hayman v.
Block(1986) 176
13 Cal.App.3rd 629, 638-639.
14 34. "In reliance on Longoria's Contradicted by Prior Sustained:
assurances, and because Deposition Testimony.
15 Longoria's prior promises D 'Amico V. Board of Medical
had already caused me to Examiners (1974) 11 Cal.3d Overmled:
16 invest $3,355 million, I 1,21. See, e.g., Somers
agreed to loan LCT Depo., pp. 127:6 - 130:7.
17 significant sums of
money." Lacks Foundation. Evid.
18 Code § 702. JUDGE SOUTHWORTH
Somers Decl. f 18, p. 5:20-21.
19 Inadmissible Hearsay Not
Falling Within an
20 Exception. Evid. Code SS
1200,1271,1400-1401,
21 1520-1521.
22
35. "By the end of 2017, my Contradicted by Prior Sustained:
23 living tmst had loaned at Deposition Testimony.
least $3.5 million more in D 'Amico V. Board of Medical
24 fimds to LCT." Examiners (1974) 11 Cal.3d Overmled:
1,21. See, e.g., Somers
25 Somers Decl. f 18, p. 5:21-22. Depo., pp. 127:6 -130:7.
26 Lacks Foundation. Evid.
27 Code § 702. JUDGE SOUTHWORTH
Inadmissible Hearsay Not
28 Falling Within an
16-
[PROPOSED] ORDER RE: DEFENDANT DR. JAMES LONGORIA'S OBJECTIONS TO EVIDENCE
I Exception. Evid. Code SS
1200,1271,1400-1401,
2 1520-1521.
3 Secondary Evidence Rule.
Evid. Code §§ 1521,1523. No
4
valid loan documents are
5 attached, incorporated, or
referenced.
6
Improper Legal
1' Conclusion. Hayman v.
Block(1986)176
8 Cal.App.3rd 629, 638-639. ,
9
36. "Thus, in total, by the end Lacks Foundation. Evid. Sustained:
10 of 2017,1 had contributed Code § 702.
nearly $7 million to LCT."
II Inadmissible Hearsay Not Overmled:
Somers Decl. f 18, p. 5:22-23. Falling Within an
12 Exception. Evid. Code SS
1200,1271,1400-1401,
13 1520-1521.
JUDGE SOUTHWORTH
14 Secondary Evidence Rule.
15 Evid. Code §§ 1521,1523. No
valid loan documents are
16 attached, incorporated, or
referenced.
17
18 37. "To keep the money Lacks Foundation. Evid. Sustained:
flowing, Longoria would Code § 702.
19 say whatever was
necessary to make sure I Inadmissible Hearsay Not Overmled:
20 believed I had equal control Falling Within an
over LCT, including Exception. Evid. Code SS
21 representing to third-party 1200,1271,1400-1401,
individuals and entities like 1520-1521.
22 the FDA and Wells Fargo JUDGE SOUTHWORTH
that I was Longoria's Improper Speculation.
23 'partner' in LCT and was Evid. Code, §§ 400,403,
an owner with equal 410.
24 control over the entity."
25 Secondary Evidence Rule.
Somers Decl. f 19, p. 5:25-28. Evid. Code §§ 1521,1523.
26
Improper Legal
27 Conclusion. Hayman v.
Block(1986)176
28 CaI.App.3rd 629, 638-639.
- 17
[PROPOSED] ORDER RE: DEFENDANT DR. JAMES LONGORIA'S OBJECTIONS TO EVIDENCE
1
Probative Value Is
2 Substantially Outweighed by
3 the Probability That
Admission of Evidence Will
4 Create Substantial Danger
of Undue Prejudice or of
5 Confusing the Issues. Evid.
Code, § 352.
6
7
8 38. "For example, in April Lacks Foundation. Evid. Sustained:
2016, Longoria cc'd me on Code § 702.
9 an email and introduced me
to an FDA consultant as his Inadmissible Hearsay Not Overmled:
10 'partner' in LCT." Falling Within an
Exception. Evid. Code SS
II Somers Decl. f 20, p. 6:1-3. 1200,1271,1400-1401,
1520-1521.
12 JUDGE SOUTHWORTH
Lacks Proper Custodian of
13 Records. Evid. Code S
1271(c).
14
Secondary Evidence Rule.
15 Evid. Code §§ 1521,1523.
16 Irrelevant Evidence. Evid.
Code § 350.
17
18 Probative Value Is
Substantially Outweighed by
19 the Probability That
Admission of Evidence Will
20 Create Substantial Danger
21 of Undue Prejudice or of
Confusing the Issues. Evid.
22 Code, § 352.
23
39. "As another example, in Lacks Foundation. Evid. Sustained:
24 July 2016, Longoria sent Code § 702. Among other
me an email with a things,
Preview
I MarkE. Ellis-127159 2 Richard H. Hart, Jr. - 058793 Omid Shabani - 267447 3 ELLIS LAW GROUP, LLP 1425 River Park Drive, Suite 400 4 Sacramento, CA 95815 Tel: (916) 283-8820 5 Fax: (916) 283-8821 6 Attomeys for Defendant Dr. James Longoria 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 11 CHARLES SOMERS, individually and as CaseNo.: 34-2018-00229212 12 tt^stee for the CHARLES SOMERS LIVING TRUST, [PROPOSED] ORDER GRANTING 13 DEFENDANT DR. JAMES LONGORIA'S Plaintiff, OBJECTIONS TO EVIDENCE IN 14 SUPPORT OF MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION 15 DR. JAMES LONGORIA, an individual and DATE: April 7,2023 16 DOES l-IO, TIME: 9:00 a.m. DEPT: 39 17 Defendant. 18 Date Complaint Filed: March 16, 2018 Trial Date: Trial set for October 16, 2023 19 20 Having reviewed the objections submitted by Defendant DR. JAMES LONGORIA to the 21 evidence provided by Plaintiff CHARLES SOMERS, individually and as tmstee for the CHARLES 22 SOMERS LIVING TRUST, in support of its motion for summary judgment, or in the altemative, 23 summary adjudication, the Court mles as follows: 24 25 26 27 28 [PROPOSED] ORDER RE: DEFENDANT DR. JAMES LONGORIA'S OBJECTIONS TO EVIDENCE 1 DEFENDANT'S OBJECTION(S) T O E V I D E N C E 2 I. PLAINTIFF'S EXHIBIT 1 - DECLARATION OF WILLIAM R. WARNE IN 3 SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARU JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY 4 ADJUDICATION 5 Material Objected to: Grounds for pbjection(s): Ruling on Objection: 6 1. Exhibit C attached to the Lack of Foundation. Evid. Sustained: 7 Declaration of William R. Code § 702. Wame. 8 Lack of Personal Overmled: Declaration of William Wame Knowledge. Evid. Code § 9 ("Warne Decl."), Exhibit 403; Sierra Managed Asset ("Exh.") C. Plan, LLC v. Hale (Cal. 10 Super. Ct. 2015) 240 CaI.App.4th Supp. I , 9; see JUDGE SOUTHWORTH II also, Kramer v. Barnes (1963) 212 CaI.App.2d 440, 446. 12 Secondary Evidence Rule. 13 Evid. Code §§ 1521,1523. 14 Inadmissible Hearsay. Evid. 15 Code §§ 170,210,400-403, 405, 702,1200,1271,1400- 16 1401,1520-1521. 17 Insufficient Evidence That Records Were Made In 18 Regular Course Of Business As Part Of The Particular 19 Business, Occupation, or Calling. Evid. Code § 20 1271(a); Prato-Morrison v. Doe (2002) 103 Cal.App.4th 21 222,229. 22 Insufficient Authentication. Evid. Code § 1400-1401; 23 Hayman v. Block (\986) 176 Cal. App. 3d 629, 638-639 24 ("Personal knowledge and competency must be shovra in 25 the supporting and opposing affidavits and declarations. 26 The affidavits must cite evidentiary facts, not legal 27 conclusions or 'ultimate' facts.") (intemal citations 28 omitted). 2- [PROPOSED] ORDER RE: DEFENDANT DR. JAMES LONGORIA'S OBJECTIONS TO EVIDENCE I Insufficient Explanation of 2 Mode of Preparation. Evid. Code § 1271(c). 3 Insufficient Explanation as 4 to Reliability of Data. Evid. Code § 1271(d). 5 6 7 8 9 10 II. PLAINTIFF'S EXHIBIT 2 - DECLARATION OF PLAINTIFF CHARLES SOMERS 11 IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARU JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY 12 ADJUDICATION 13 2. "the Affordable Care Act's Improper Legal Sustained: 14 passage in 2010 essentially Conclusion. Hayman v. made illegal the creation of Block(1986) 176 15 physician-owned CaI.App.3rd 629, 638-639 Overmled: hospitals." "affidavits must cite 16 evidentiary facts, not legal Declaration of Charles Somers in conclusions or 'ultimate' 17 Support of Opposition to facts"). Defendant's MSJ / MSA ("Somers JUDGE SOUTHWORTH 18 Decl.") 13, p. 2:13-14. Lacks Foundation. Evid. Code § 702. 19 Improper Speculation. 20 Evid. Code, §§ 400,403, 410; See also, Kramer v. 21 Barnes (\96'}>)2U Cal.App.2d 440, 446 22 ("Affidavits which set forth only conclusions, opinions or 23 ultimate facts are insufficient."). 24 25 26 27 28 3- [PROPOSED] ORDER RE: DEFENDANT DR. JAMES LONGORIA'S OBJECTIONS TO EVIDENCE I 3. "At some point in our Lacks Foundation. Evid. Sustained: 2 friendship (I cannot Code § 702. remember the exact 3 timeframe) Longoria told Inadmissible Hearsay Not Overmled: me that he was involved Falling Within an 4 with patenting certain Exception. Evid. Code S medical devices and 1200,1271,1400-1401, 5 surgery processes that he 1520-1521. claimed would JUDGE SOUTHWORTH 6 revolutionize certain hear improper Speculation. surgeries." Evid. Code, §§ 400,403, 7 410. Somers Decl. f 4, p. 2:15-17. 8 Irrelevant evidence. Evid. Code § 350. 9 10 4. "In July or August of 2013, Lacks Foundation. Evid. Sustained: 11 Longoria and his business Code § 702. partner, Roy Chin ('Chin'), 12 came to SBM to pitch me Improper Speculation. Overmled: on investing in their Evid. Code, §§ 400,403, 13 medical device company, 410. then known as Intrepid 14 Medical and later renamed Inadmissible Hearsay Not to LC Therapeutics Falling Within an JUDGE SOUTHWORTH 15 ('LCT')." Exception. Evid. Code SS 1200,1271,1400-1401, 16 Somers Decl. f 4, p. 2:17-20. 1520-1521. 17 Improper Legal Conclusion. Havman v. 18 Block(1986) 176 Cal.App.3rd 629, 638-639 19 ("affidavits must cite evidentiary facts, not legal 20 conclusions or 'ultimate' facts"). 21 5. " I seriously considered their Lacks Foundation. Evid. Sustained: 22 Code § 702. request for funding." 23 Inadmissible Hearsay Not Overmled: Somers Decl. % 5, p. 2:21. Falling Within an 24 Exception. Evid. Code SS 170,210,400-403,405,702, 25 1200,1271,1400-1401, 1520-1521. JUDGE SOUTHWORTH 26 Improper Speculation. 27 Evid. Code, §§ 400, 403, 410. 28 4- [PROPOSED] ORDER RE: DEFENDANT DR. JAMES LONGORIA'S OBJECTIONS TO EVIDENCE I 6. "Initially, I preferred the Lacks Foundation. Evid. Sustained: 2 idea of loaning money to Code § 702. 3 LCT on conventional terms, Inadmissible Hearsay Not Overmled: including repayment Falling Within an 4 according to a specified Exception. Evid. Code §§ schedule with interest in 170,210, 400-403, 405, 702, 5 accordance with a note." 1200,1271,1400-1401, 1520-1521. JUDGE SOUTHWORTH 6 Somers Decl. f 6, p. 2:23-24. 7 8 Lacks Foundation. Evid. Sustained: 7. "In fact, Longoria told me that if the company needed Code § 702. 9 additional funding, I could Inadmissible Hearsay Not Overmled: 10 then purchase additional Falling Within an equity to whatever extent I Exception. Evid. Code §§ 11 was interested." 1271,1400-1401,1520-1521. 12 Improper Speculation. JUDGE SOUTHWORTH Somers Decl. % 6, p. 2:27 - 3:2. Evid. Code, §§ 400,403, 13 410. 14 Probative Value Is Substantially Outweighed 15 bv the Probability That Admission of Evidence Will 16 Create Substantial Danger of Undue Prejudice or of 17 Confusing the Issues. Evid. Code, § 352. The testimony 18 is based on an incomplete hypothetical. 19 20 Contradicted by Prior Sustained: 8. "If not for Longoria's various representations to Deposition Testimony. 21 D 'Amico V. Board of Medical me, I would not have Examiners (\974) II Cal.3d Overmled: 22 invested in LCT." 1,21. 5ee, Deposition of 23 Charles Somers ("Somers Somers Decl. f 7, p. 3:3-4. Depo."), p. 64:7-23. 24 Lacks Foundation. Evid. JUDGE SOUTHWORTH 25 Code § 702. 26 Inadmissible Hearsay Not Falling Within an 27 Exception. Evid. Code §§ 1200,1271,1400-1401, 28 1520-1521. [PROPOSED] ORDER RE: DEFENDANT DR. JAMES LONGORIA'S OBJECTIONS TO EVIDENCE 1 Improper Speculation. Evid. Code, §§ 400,403, 2 410. 3 Probative Value Is Substantially Outweighed 4 by the Probability That Admission of Evidence Will 5 Create Substantial Danger of Confusing the Issues. 6 Evid. Code, § 352. The testimony is based on an 7 incomplete hypothetical. The witness does not identify 8 which representations are being referenced, while the 9 operative Second Amended Complaint ("SAC"), inter 10 alia, contains three causes of action for negligent 11 misrepresentation. 12 9. "Ultimately, my CFO, Ken Lacks Foundation. Evid. Sustained: 13 Code § 702. Silva ("Silva"), and I agreed 14 that it would befinefor Inadmissible Double Overmled: LCT to stay a subchapter S Hearsay Not Falling Within 15 corporation to start with an Exception. Evid. Code because Longoria claimed §§ 1200,1271,1400-1401, 16 to me that LCT would be 1520-1521. profitable within 12 months JUDGE SOUTHWORTH 17 Improper Speculation. of its start." Evid. Code, §§ 400,403, 18 410. Somers Decl. f 7, p. 3:6-8. 19 Improper Legal Conclusion. Hayman v. 20 Block(1986)176 Cal.App.3rd 629, 638-639. 21 22 10. " I never agreed that the Lacks Foundation. Evid. Sustained: company should remain a Code § 702. 23 subchapter S corporation forever and always Inadmissible Hearsay Not Overmled: 24 expected that Longoria Falling Within an would follow through with Exception. Evid. Code §§ 25 his repeated promises to 1200,1271,1400-1401, convert LCT to an LLC." 1520-1521. Hayman v. Block 26 (1986) 176 Cal.App.3d 629, JUDGE SOUTHWORTH Somers Decl. f 7, p. 3:9-11. 638-639. 27 28 -6 [PROPOSED] ORDER RE: DEFENDANT DR. JAMES LONGORIA'S OBJECTIONS TO EVIDENCE 1 11. "I explained to Longoria Lacks Foundation. Evid. Sustained: 2 that I had already invested Code § 702. $2 million, that LCT was 3 failing, and that / would Inadmissible Hearsay Not Overmled: onlv agree to more funding Falling Within an 4 if I had a full seat at the Exception. Evid. Code SS table" 1200,1271, 1400-1401, 5 1520-1521. Somers Decl. f 9, p. 3:22-23 JUDGE SOUTHWORTH 6 (emphasis added). Improper Legal Conclusion. Hayman v. 7 Block(1986)176 Cal.App.3rd 629, 638-639. 8 9 10 11 12. "Longoria agreed, telling Lacks Foundation. Evid. Sustained: 12 me that if I agreed to Code § 702. provide additional equity 13 financing, I would replace Inadmissible Hearsay Not Overmled: Chin on the board and have Falling Within an 14 equal control over all Exception. Evid. Code SS company decisions; he said 1200,1271,1400-1401, 15 we would immediately be 1520-1521. partners, with equal control JUDGE SOUTHWORTH 16 of LCT." Improper Speculation. Evid. Code, §§ 400, 403, 17 Somers Decl. f 10, p. 3:24-26. 410. 18 Improper Legal Conclusion. Hayman v. 19 Block(1986)176 CaI.App.3rd 629, 638-639. 20 21 22 23 13. "Longoria also promised Lacks Foundation. Evid. Sustained: 24 me that if I agreed to Code § 702. provide additional funding, 25 LCT would pay me back Inadmissible Hearsay Not Overmled: first, a concept we Falling Within an 26 repeatedly confirmed while Exception. Evid. Code SS in Hawaii and afterwards, 1200,1271,1400-1401, 27 using the phrase, 'First 1520-1521. money in, first money JUDGE SOUTHWORTH 28 out.'" Improper Speculation. Evid. Code, §§ 400,403, [PROPOSED] ORDER RE: DEFENDANT DR. JAMES LONGORIA'S OBJECTIONS TO EVIDENCE 1 Somers Decl. f 11, p. 4:1-3. 410. 2 Improper Legal Conclusion. Hayman v. 3 Block(1986)176 CaI.App.3rd 629, 638-639. 4 5 6 7 14. "We also agreed that I Lacks Foundation. Evid. Sustained: could decide to buy Code § 702. 8 additional equity or to make loans if the company Inadmissible Hearsay Not Overmled: 9 needed additional funding, Falling Within an and that i f i was not so Exception. Evid. Code SS 10 inclined, the company 1200,1271,1400-1401, would seek outside 1520-1521. Hayman v. Block II funding." (1986) 176 CaI.App.3d 629, JUDGE SOUTHWORTH 638-639. 12 Somers Decl. f 11, p. 4:3-5. Improper Speculation. 13 Evid. Code, §§ 400,403, 410. 14 15 15. "In light of Longoria's Lacks Foundation. Evid. Sustained: representations to me in Code § 702. 16 Hawaii, I was interested, and we continued to discuss Inadmissible Hearsay Not Overmled: 17 the matter through Falling Within an December 2014 and into Exception. Evid. Code SS 18 January 2015." 1200,1271,1400-1401, 1520-1521. 19 Somers Decl. f 12, p. 4:6-7 JUDGE SOUTHWORTH (emphasis added). Improper Speculation. 20 Evid. Code, §§ 400,403, 21 410. 22 16. "Longoria also repeatedly Lacks Foundation. Evid. Sustained: 23 confirmed he would give Code § 702. me co-equal control, 24 authority, and ownership in Inadmissible Hearsay Not Overmled: exchange for funding the Falling Within an 25 company." Exception. Evid. Code SS 1200,1271,1400-1401, 26 Somers Decl. ^ 12, p. 4:8-10. . 1520-1521. JUDGE SOUTHWORTH 27 Improper Speculation. Evid. Code, §§ 400,403, 28 410. [PROPOSED] ORDER RE: DEFENDANT DR. JAMES LONGORIA'S OBJECTIONS TO EVIDENCE 1 Improper Legal 2 Conclusion. Hayman v. Block(1986)176 3 Cal.App.3rd 629, 638-639. 4 5 6 7 17. "I commenced this lawsuit Lacks Foundation. Evid. Sustained: by filing a complaint in Code § 702. 8 early 2018 and, later that year, I learned that I had Inadmissible Double Overmled: 9 been cc'd on an email on Hearsay Not Falling Within December 15, 2014. which an Exception. Evid. Code 10 attached an unsigned §§ 1200,1271,1400-1401, 'Action by Consent of the 1520-1521. 11 Sole Director'of LCT" JUDGE SOUTHWORTH Secondary Evidence Rule. 12 Somers Decl. ^ 13, p. 4:11-14 Evid. Code §§ 1521,1523. (emphasis added). 13 14 18. "In reviewing this email Lacks Foundation. Evid. Sustained: 15 after the fact, I understand Code § 702. it to have been an effort by 16 Longoria to ensure that the Inadmissible Hearsay Not Overmled: business of LCT could Falling Within an 17 continue to fimction after Exception. Evid. Code SS its CEO, Chin, resigned." 1200,1271,1400-1401, 1520-1521. Hayman v. Block 18 (1986) 176 Cal.App.3d 629, Somers Decl. f 14, p. 4:16-18. JUDGE SOUTHWORTH 638-639. 19 20 Secondary Evidence Rule. Evid. Code §§ 1521,1523. 21 Improper Speculation. 22 Evid. Code, §§ 400, 403, 410. 23 Improper Legal 24 Conclusion. Havman v. Block(1986)176 25 Cal.App.3rd 629, 638-639. 26 27 28 [PROPOSED] ORDER RE: DEFENDANT DR. JAMES LONGORJA'S OBJECTIONS TO EVIDENCE 1 19. "The company needed to Lacks Foundation. Evid. Sustained: 2 be able to pay vendors and Code § 702. work with its bank." 3 Inadmissible Hearsay Not Overmled: Somers Decl. f 14, p. 4:18. Falling Within an 4 Exception. Evid. Code SS 1200,1271,1400-1401, 5 1520-1521. JUDGE SOUTHWORTH 6 Improper Speculation. Evid. Code, §§ 400, 403, 7 410. 8 9 20. "Thus, someone needed to Lacks Foundation. Evid. Sustained: 10 be appointed to the officer Code § 702. positions immediately." II Inadmissible Hearsay Not Overmled: Somers Decl. f 14, p. 4:18-19. Falling Within an 12 Exception. Evid. Code SS 1200,1271,1400-1401, 13 1520-1521. JUDGE SOUTHWORTH 14 Secondary Evidence Rule. 15 Evid. Code §§ 1521,1523. 16 Improper Speculation. Evid. Code, §§ 400, 403, 17 410. 18 Improper Legal Conclusion. Hayman v. 19 Block(1986)176 CaI.App.3rd 629, 638-639. 20 21 21. "Although this unsigned Lacks Foundation. Evid. Sustained: resolution identified Code § 702. 22 Longoria as the sole director and officer of Inadmissible Hearsay Not Overmled: 23 LCT, I would not have Falling Within an been surprised or worried Exception. Evid. Code SS 24 had I seen this resolution in 1200,1271,1400-1401, December 2014." 1520-1521. 25 JUDGE SOUTHWORTH Somers Decl. 114, p. 4:19-21 Secondary Evidence Rule. 26 (emphasis in original). Evid. Code §§ 1521,1523. 27 Improper Speculation. Evid. Code, §§ 400,403, 28 410. 10 [PROPOSED] ORDER RE: DEFENDANT DR. JAMES LONGORIA'S OBJECTIONS TO EVIDENCE I 2 3 4 5 6 7 22. "At the point, I had not yet Lacks Foundation. Evid. Sustained: invested additional funds Code § 702. 8 into LCT and thus would not have expected Longoria Inadmissible Hearsay Not Overmled: 9 to have already fulfilled his Falling Within an promise to appoint me to Exception. Evid. Code SS 10 Chin's board spot." 1200,1271,1400-1401, 1520-1521. II Somers Decl. f 14, p. 4:21-23 JUDGE SOUTHWORTH (emphasis added). Improper Speculation. 12 Evid. Code, §§ 400, 403, 410. 13 14 23. "That Longoria later Lacks Foundation. Evid. Sustained: 15 grasped at this resolution as Code § 702. proof that I had no role in 16 LCT, other than as only a Inadmissible Hearsay Not Overmled: shareholder, demonstrates Falling Within an 17 to me that Longoria would Exception. Evid. Code SS say or do anything to get 1200, 1271,1400-1401, 18 me to fund LCT, and that 1520-1521. he never intended to make JUDGE SOUTHWORTH 19 me a board director or tmly Improper Speculation. share equal control of the Evid. Code, §§ 400,403, 20 company." 410. 21 Somers Decl. f 14, p. 4:23-26. Secondary Evidence Rule. 22 Evid. Code §§ 1521,1523. 23 Improper Legal Conclusion. Hayman v. 24 Block(1986) 176 Cal.App.3rd 629, 638-639. 25 26 27 28 11 [PROPOSED] ORDER RE: DEFENDANT DR. JAMES LONGORIA'S OBJECTIONS TO EVIDENCE 1 24. " I now believe that Lacks Foundation. Evid. Sustained: 2 Longoria intentionally Code § 702. refrained from amending 3 the December 2014 Inadmissible Hearsay Not Overmled: resolution so that he could Falling Within an 4 keep exclusive confrol over Exception. Evid. Code §§ LCT." 1200,1271,1400-1401, 5 1520-1521. Somers Decl. f 14, p. 4:23-26. JUDGE SOUTHWORTH 6 Improper Speculation. Evid. Code, §§ 400, 403, 7 410; Kramer v. Barnes (1963) 212 Cal.App.2d 440, 8 446 ("Affidavits which set forth only conclusions, 9 opinions or ultimate facts are insufficient."). 10 Secondary Evidence Rule. II Evid. Code §§ 1521,1523. 12 Improper Legal 13 Conclusion. Hayman v. Block(\986) 176 14 CaI.App.3rd 629, 638-639. 15 25. "In January 2015, and onlv Lacks Foundation. Evid. Sustained: because ofLonsoria's Code § 702. 16 repeated representations and assurances, I Inadmissible Hearsay Not Overmled: 17 instmcted Silva to proceed Falling Within an with the paperwork to fund Exception. Evid. Code §§ 18 LCT with another $1,335 1200,1271,1400-1401, million investment from 1520-1521. Hayman v. Block 19 my living tmst." (1986) 176 CaI.App.3d 629, JUDGE SOUTHWORTH 638-639. 20 Somers Decl. ^ 15, p. 5:1-3 (emphasis added). 21 22 23 26. "Taking over Chin's role Lacks Foundation. Evid. Sustained: 24 and moving from Code § 702. shareholder to what 25 Longoria referred to as his Inadmissible Hearsay Not Overmled: full 'partner' would finally Falling Within an 26 give me the type of Exception. Evid. Code §§ directional control I 1200,1271,1400-1401, 27 required before investing 1520-1521. even more money in a JUDGE SOUTHWORTH 28 company that had no Improper Speculation. 12 [PROPOSED] ORDER RE: DEFENDANT DR. JAMES LONGORIA'S OBJECTIONS TO EVIDENCE I demonstrated history of Evid. Code, §§ 400,403, success and that was failing 410; Kramer v. Barnes 2 to meet the key milestones (1963) 212 Cal.App.2d 440, of its own business plan." 446 ("Affidavits which set 3 forth only conclusions, Somers Decl. f 15, p. 5:3-6. opinions or ultimate facts are 4 insufficient."). 5 Improper Legal Conclusion. Havman v. 6 Block(1986)176 Cal.App.3rd 629, 638-639. 7 8 27. "From my viewpoint, Lacks Foundation. Evid. Sustained: Longoria was distracted by Code § 702. 9 his medical practice and failing to tiend to his duties Inadmissible Hearsay Not Overmled: 10 as CEO and secretary of Falling Within an the company." Exception. Evid. Code SS 11 1200,1271,1400-1401, Somers Decl. f 16, p. 5:8-9. 1520-1521. 12 JUDGE SOUTHWORTH Improper Speculation. 13 Evid. Code, §§ 400,403, 410; Kramer v. Barnes 14 (1963) 212 CaI.App.2d 440, 446 ("Affidavits which set 15 forth only conclusions, opinions or ultimate facts are 16 insufficient."). 17 18 19 28. "At the end of 2015, even Lacks Foundation. Evid. Sustained: though I, through my living Code § 702. 20 tmst, had already invested $3,335 million in less than Inadmissible Hearsay Not Overmled: 21 two years' time, LCT was Falling Within an not close to making a profit Exception. Evid. Code SS 22 and still in dire need of 1200,1271,1400-1401, additional cash." 1520-1521. 23 JUDGE SOUTHWORTH 24 Somers Decl. f 16, p. 5:9-11. Improper Speculation. Evid. Code, §§ 400,403, 25 410; Kramer v. Barnes (1963) 212 Cal.App.2d 440, 26 446 ("Affidavits which set forth only conclusions, 27 opinions or ultimate facts are insufficient."). 28 Improper Legal 13 [PROPOSED] ORDER RE: DEFENDANT DR. JAMES LONGORIA'S OBJECTIONS TO EVIDENCE I Conclusion. Hayman v. Block(1986)176 2 CaI.App.3rd 629, 638-639. 3 Improper Expert Opinion. Evid. Code § 801. 4 5 6 7 29. "In late 2015, When [5/c] Lacks Foundation. Evid. Sustained: Longoria approached me Code § 702. 8 for even more fimding, he abandoned his earlier Inadmissible Hearsay Not Overmled: 9 promise to allow me to Falling Within an fund the company through Exception. Evid. Code §§ 10 the purchase of additional 1200,1271,1400-1401, equity." 1520-1521. II JUDGE SOUTHWORTH Somers Decl. f 17, p. 5:12-13. Improper Speculation. 12 Evid. Code, §§ 400,403, 410; Kramer v. Barnes 13 (1963) 212 Cal.App.2d 440, 446 ("Affidavits which set 14 forth only conclusions, opinions or ultimate facts are 15 insufficient."). 16 30. "Instead, he now told me Lacks Foundation. Evid. Sustained: 17 that he wanted to remain a Code § 702. 50% owner of the company 18 so that the two of us would Inadmissible Hearsay Not Overmled: remain co-equals of Falling Within an 19 company control." Exception. Evid. Code §§ 1200,1271,1400-1401, 20 Somers Decl. f 17, p. 5:14-15. 1520-1521. 21 JUDGE SOUTHWORTH Improper Speculation. 22 Evid. Code, §§ 400,403, 410; Kramer v. Barnes 23 (1963) 212 Cal.App.2d 440, 446 ("Affidavits which set 24 forth only conclusions, opinions or ultimate facts are 25 insufficient."). 26 Improper Legal Conclusion. Hayman v. 27 Block(1986)176 Cal.App.3rd 629, 638-639. 28 14- [PROPOSED] ORDER RE: DEFENDANT DR. JAMES LONGORIA'S OBJECTIONS TO EVIDENCE I Improper Expert Opinion. Evid. Code § 801. 2 3 4 5 6 7 31. "Longoria said that he did Lacks Foundation. Evid. Sustained: not want to "work for" me, Code § 702. 8 he did not want to lose his 50% interest in LCT, and Inadmissible Hearsay Not Overmled: 9 he wanted us to remain Falling Within an equals." Exception. Evid. Code §§ 10 1200,1271,1400-1401, Somers Decl. f 17, p. 5:15-16. 1520-1521. 11 JUDGE SOUTHWORTH Improper Speculation. 12 Evid. Code, §§ 400, 403, 410; Kramer v. Barnes 13 (1963) 212 CaI.App.2d 440, 446 ("Affidavits which set 14 forth only conclusions, opinions or ultimate facts are 15 insufficient."). 16 Improper Legal Conclusion. Hayman v. 17 Block (\986) 176 CaI.App.3rd 629, 638-639. 18 19 32. "Longoria thus urged me to Contradicted by Prior Sustained: agree to provide any Deposition Testimony. 20 additional money in the D 'Amico V. Board of Medical form of loans." Examiners (1974) II Cal.3d Overmled: 21 1, 21. See, e.g., Somers Somers Decl. f 17, p. 5:16-17. Depo., pp. 127:6 - 130:7. 22 Lacks Foundation. Evid. 23 Code § 702. JUDGE SOUTHWORTH 24 Inadmissible Hearsay Not 25 Falling Within an Exception. Evid. Code §§ 26 1200,1271,1400-1401, 1520-1521. 27 Improper Legal 28 Conclusion. Hayman v. ^/oci^(1986) 176 15- [PROPOSED] ORDER RE: DEFENDANT DR. JAMES LONGORIA'S OBJECTIONS TO EVIDENCE 1 CaI.App.3rd 629, 638-639. 2 3 4 5 6 7 33. "At that time, Longoria Lacks Foundation. Evid. Sustained: repeated his promise that Code § 702. 8 he and I would share control and participate Inadmissible Hearsay Not Overmled: 9 equally in all decisions." Falling Within an Exception. Evid. Code SS 10 Somers Decl. f 17, p. 5:17-19. 1200,1271,1400-1401, 1520-1521. 11 JUDGE SOUTHWORTH Improper Legal 12 Conclusion. Hayman v. Block(1986) 176 13 Cal.App.3rd 629, 638-639. 14 34. "In reliance on Longoria's Contradicted by Prior Sustained: assurances, and because Deposition Testimony. 15 Longoria's prior promises D 'Amico V. Board of Medical had already caused me to Examiners (1974) 11 Cal.3d Overmled: 16 invest $3,355 million, I 1,21. See, e.g., Somers agreed to loan LCT Depo., pp. 127:6 - 130:7. 17 significant sums of money." Lacks Foundation. Evid. 18 Code § 702. JUDGE SOUTHWORTH Somers Decl. f 18, p. 5:20-21. 19 Inadmissible Hearsay Not Falling Within an 20 Exception. Evid. Code SS 1200,1271,1400-1401, 21 1520-1521. 22 35. "By the end of 2017, my Contradicted by Prior Sustained: 23 living tmst had loaned at Deposition Testimony. least $3.5 million more in D 'Amico V. Board of Medical 24 fimds to LCT." Examiners (1974) 11 Cal.3d Overmled: 1,21. See, e.g., Somers 25 Somers Decl. f 18, p. 5:21-22. Depo., pp. 127:6 -130:7. 26 Lacks Foundation. Evid. 27 Code § 702. JUDGE SOUTHWORTH Inadmissible Hearsay Not 28 Falling Within an 16- [PROPOSED] ORDER RE: DEFENDANT DR. JAMES LONGORIA'S OBJECTIONS TO EVIDENCE I Exception. Evid. Code SS 1200,1271,1400-1401, 2 1520-1521. 3 Secondary Evidence Rule. Evid. Code §§ 1521,1523. No 4 valid loan documents are 5 attached, incorporated, or referenced. 6 Improper Legal 1' Conclusion. Hayman v. Block(1986)176 8 Cal.App.3rd 629, 638-639. , 9 36. "Thus, in total, by the end Lacks Foundation. Evid. Sustained: 10 of 2017,1 had contributed Code § 702. nearly $7 million to LCT." II Inadmissible Hearsay Not Overmled: Somers Decl. f 18, p. 5:22-23. Falling Within an 12 Exception. Evid. Code SS 1200,1271,1400-1401, 13 1520-1521. JUDGE SOUTHWORTH 14 Secondary Evidence Rule. 15 Evid. Code §§ 1521,1523. No valid loan documents are 16 attached, incorporated, or referenced. 17 18 37. "To keep the money Lacks Foundation. Evid. Sustained: flowing, Longoria would Code § 702. 19 say whatever was necessary to make sure I Inadmissible Hearsay Not Overmled: 20 believed I had equal control Falling Within an over LCT, including Exception. Evid. Code SS 21 representing to third-party 1200,1271,1400-1401, individuals and entities like 1520-1521. 22 the FDA and Wells Fargo JUDGE SOUTHWORTH that I was Longoria's Improper Speculation. 23 'partner' in LCT and was Evid. Code, §§ 400,403, an owner with equal 410. 24 control over the entity." 25 Secondary Evidence Rule. Somers Decl. f 19, p. 5:25-28. Evid. Code §§ 1521,1523. 26 Improper Legal 27 Conclusion. Hayman v. Block(1986)176 28 CaI.App.3rd 629, 638-639. - 17 [PROPOSED] ORDER RE: DEFENDANT DR. JAMES LONGORIA'S OBJECTIONS TO EVIDENCE 1 Probative Value Is 2 Substantially Outweighed by 3 the Probability That Admission of Evidence Will 4 Create Substantial Danger of Undue Prejudice or of 5 Confusing the Issues. Evid. Code, § 352. 6 7 8 38. "For example, in April Lacks Foundation. Evid. Sustained: 2016, Longoria cc'd me on Code § 702. 9 an email and introduced me to an FDA consultant as his Inadmissible Hearsay Not Overmled: 10 'partner' in LCT." Falling Within an Exception. Evid. Code SS II Somers Decl. f 20, p. 6:1-3. 1200,1271,1400-1401, 1520-1521. 12 JUDGE SOUTHWORTH Lacks Proper Custodian of 13 Records. Evid. Code S 1271(c). 14 Secondary Evidence Rule. 15 Evid. Code §§ 1521,1523. 16 Irrelevant Evidence. Evid. Code § 350. 17 18 Probative Value Is Substantially Outweighed by 19 the Probability That Admission of Evidence Will 20 Create Substantial Danger 21 of Undue Prejudice or of Confusing the Issues. Evid. 22 Code, § 352. 23 39. "As another example, in Lacks Foundation. Evid. Sustained: 24 July 2016, Longoria sent Code § 702. Among other me an email with a things,