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1 MALCOLM D. DONALDSON, ESQ. – State Bar No. 185613
LAW OFFICES OF SCOTT C STRATMAN
2 P.O. Box 258829
Oklahoma City, OK 73125-8829
3 Phone: (510) 457-3440
Email: malcolm.donaldson@farmersinsurance.com
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Attorney for Defendant,
5 LOTUS HOSPITALITY II, INC.
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN MATEO
10 Deborah Kelly Garland Peric, Case No.: 21-CIV-04971
UNLIMITED JURISDICTION
11 Plaintiffs,
ASSIGNED TO FOR ALL PURPOSES:
12 vs. HON. NANCY L. FINEMAN
DEPT: 4
13 Lotus Hospitality II, Inc. and DOES 1 TO 50,
MOTION IN LIMINE AND ORDER TO
14 Defendants. REQUEST THE COURT APPLY THE
PROPER SETOFF AFTER THE VERDICT
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Trial Date: February 26, 2024
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19 TO THE COURT AND ALL INTERESTED PARTIES:
20 Defendant, LOTUS HOSPITALITY II, INC., move the court, in limine, as follows:
21 The recent case of Ehret v. Congoleum Corp. (1999) 73 Cal.App.4th 1308 addresses the
22 appropriate allocation setoff following a verdict. In the absence of a showing by Plaintiffs to the trial
23 court for a different formula, the pretrial settlement setoff is based on the percentage of economic
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25 //
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MOTION IN LIMINE AND ORDER TO REQUEST THE COURT APPLY THE PROPER SETOFF AFTER THE VERDICT - 1
1 damages to the total damages awarded to Plaintiffs. Id. At 1320. Plaintiffs have the burden to convince
2 the Court an alternative setoff applies. Id. At 1321-1322.
3
4 Respectfully submitted,
DATED: February 5, 2024
5 LAW OFFICES OF SCOTT C STRATMAN
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BY:
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8 MALCOLM D. DONALDSON, ESQ.
Attorney for Defendant,
9 LOTUS HOSPITALITY II, INC.
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MOTION IN LIMINE AND ORDER TO REQUEST THE COURT APPLY THE PROPER SETOFF AFTER THE VERDICT - 2
1 MALCOLM D. DONALDSON, ESQ. – State Bar No. 185613
LAW OFFICES OF SCOTT C STRATMAN
2 P.O. Box 258829
Oklahoma City, OK 73125-8829
3 Phone: (510) 457-3440
Fax:
4
Attorney for Defendant,
5 LOTUS HOSPITALITY II, INC.
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN MATEO
10 Deborah Kelly Garland Peric, Case No.: 21-CIV-04971
UNLIMITED JURISDICTION
11 Plaintiffs,
ASSIGNED TO FOR ALL PURPOSES:
12 vs. HON. NANCY L. FINEMAN
DEPT: 4
13 Lotus Hospitality II, Inc. and DOES 1 TO 50,
ORDER RE: MOTION IN LIMINE TO
14 Defendants. REQUEST THE COURT APPLY THE
PROPER SETOFF AFTER THE VERDICT
15
Trial Date: February 26, 2024
16
17 Having considered Defendants’ Motion In Limine To Request The Court Apply The Proper
18
Setoff After The Verdict, and good cause appearing therefore, the court orders as follows:
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GRANTED: YES NO
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DATED: February _____, 2024
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JUDGE OF THE SUPERIOR COURT
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MOTION IN LIMINE AND ORDER TO REQUEST THE COURT APPLY THE PROPER SETOFF AFTER THE VERDICT - 3
1 Re: Peric v. Lotus Hospitality II, Inc., et al.
Case Number: 21-CIV-04971
2
3 PROOF OF SERVICE
Code of Civil Procedure §§ 1013a, 2015.5
4
I am a resident of the State of California and over the age of eighteen years, and not a party to the
5 within action. My business address is P.O. Box 258829, Oklahoma City, OK 73125-8829. On February
5, 2024, I served the following document(s):
6
7 MOTION IN LIMINE AND ORDER TO REQUEST THE COURT APPLY
THE PROPER SETOFF AFTER THE VERDICT
8
By placing the document(s) listed above in a sealed envelope, addressed as set forth
9 below, with postage fully prepaid, and placing the envelope for collection and mailing
by the U.S. Postal Service on the same day following the firm’s ordinary business
10 practices of which I am readily familiar. I am aware that on motion of the party served,
service is presumed invalid if postal cancellation date or postage meter date is more
11 than one day after date of deposit for mailing in affidavit.
12
By causing a true copy thereof to be personally delivered to the person(s) at the
13 address(es) set forth below.
14 By electronically serving the document(s) described above via a Court approved File
& Serve vendor on those recipients designated on the Transaction Receipt located on
15 the vendor’s Website.
16
By electronically serving the document(s) to the electronic mail address set forth
17 below on this date before 11:59:59 p.m. pursuant to and consistent with Code of Civil
Procedure §§1010.6(a)(2), (4), (5) and 1010.6(e) from email address
18 X timothy.feeney@farmersinsurance.com.
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I declare under penalty of perjury under the laws of the State of California that the above is true
and correct.
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Executed on February 5, 2024, at Oakland, California.
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TIMOTHY C. FEENEY
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MOTION IN LIMINE AND ORDER TO REQUEST THE COURT APPLY THE PROPER SETOFF AFTER THE VERDICT - 4
1 Re: Peric v. Lotus Hospitality II, Inc., et al.
Case Number: 21-CIV-04971
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SERVICE LIST
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Nikolaus Reed, Esq.
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Law Offices of Nikolaus W. Reed
40 Pier, Suite 7
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San Francisco, CA 94107
Attorney for Plaintiff, DEBORAH KELLY GARLAND PERIC
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Phone: (415) 940-7766
Fax: (415) 940-7706
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nikolaus_reed@yahoo.com
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MOTION IN LIMINE AND ORDER TO REQUEST THE COURT APPLY THE PROPER SETOFF AFTER THE VERDICT - 5
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1 MALCOLM D. DONALDSON, ESQ. – State Bar No. 185613 LAW OFFICES OF SCOTT C STRATMAN 2 P.O. Box 258829 Oklahoma City, OK 73125-8829 3 Phone: (510) 457-3440 Email: malcolm.donaldson@farmersinsurance.com 4 Attorney for Defendant, 5 LOTUS HOSPITALITY II, INC. 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN MATEO 10 Deborah Kelly Garland Peric, Case No.: 21-CIV-04971 UNLIMITED JURISDICTION 11 Plaintiffs, ASSIGNED TO FOR ALL PURPOSES: 12 vs. HON. NANCY L. FINEMAN DEPT: 4 13 Lotus Hospitality II, Inc. and DOES 1 TO 50, MOTION IN LIMINE AND ORDER TO 14 Defendants. REQUEST THE COURT APPLY THE PROPER SETOFF AFTER THE VERDICT 15 Trial Date: February 26, 2024 16 17 18 19 TO THE COURT AND ALL INTERESTED PARTIES: 20 Defendant, LOTUS HOSPITALITY II, INC., move the court, in limine, as follows: 21 The recent case of Ehret v. Congoleum Corp. (1999) 73 Cal.App.4th 1308 addresses the 22 appropriate allocation setoff following a verdict. In the absence of a showing by Plaintiffs to the trial 23 court for a different formula, the pretrial settlement setoff is based on the percentage of economic 24 // 25 // 26 // 27 // 28 MOTION IN LIMINE AND ORDER TO REQUEST THE COURT APPLY THE PROPER SETOFF AFTER THE VERDICT - 1 1 damages to the total damages awarded to Plaintiffs. Id. At 1320. Plaintiffs have the burden to convince 2 the Court an alternative setoff applies. Id. At 1321-1322. 3 4 Respectfully submitted, DATED: February 5, 2024 5 LAW OFFICES OF SCOTT C STRATMAN 6 BY: 7 8 MALCOLM D. DONALDSON, ESQ. Attorney for Defendant, 9 LOTUS HOSPITALITY II, INC. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION IN LIMINE AND ORDER TO REQUEST THE COURT APPLY THE PROPER SETOFF AFTER THE VERDICT - 2 1 MALCOLM D. DONALDSON, ESQ. – State Bar No. 185613 LAW OFFICES OF SCOTT C STRATMAN 2 P.O. Box 258829 Oklahoma City, OK 73125-8829 3 Phone: (510) 457-3440 Fax: 4 Attorney for Defendant, 5 LOTUS HOSPITALITY II, INC. 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN MATEO 10 Deborah Kelly Garland Peric, Case No.: 21-CIV-04971 UNLIMITED JURISDICTION 11 Plaintiffs, ASSIGNED TO FOR ALL PURPOSES: 12 vs. HON. NANCY L. FINEMAN DEPT: 4 13 Lotus Hospitality II, Inc. and DOES 1 TO 50, ORDER RE: MOTION IN LIMINE TO 14 Defendants. REQUEST THE COURT APPLY THE PROPER SETOFF AFTER THE VERDICT 15 Trial Date: February 26, 2024 16 17 Having considered Defendants’ Motion In Limine To Request The Court Apply The Proper 18 Setoff After The Verdict, and good cause appearing therefore, the court orders as follows: 19 20 GRANTED: YES NO 21 22 DATED: February _____, 2024 23 JUDGE OF THE SUPERIOR COURT 24 25 26 27 28 MOTION IN LIMINE AND ORDER TO REQUEST THE COURT APPLY THE PROPER SETOFF AFTER THE VERDICT - 3 1 Re: Peric v. Lotus Hospitality II, Inc., et al. Case Number: 21-CIV-04971 2 3 PROOF OF SERVICE Code of Civil Procedure §§ 1013a, 2015.5 4 I am a resident of the State of California and over the age of eighteen years, and not a party to the 5 within action. My business address is P.O. Box 258829, Oklahoma City, OK 73125-8829. On February 5, 2024, I served the following document(s): 6 7 MOTION IN LIMINE AND ORDER TO REQUEST THE COURT APPLY THE PROPER SETOFF AFTER THE VERDICT 8 By placing the document(s) listed above in a sealed envelope, addressed as set forth 9 below, with postage fully prepaid, and placing the envelope for collection and mailing by the U.S. Postal Service on the same day following the firm’s ordinary business 10 practices of which I am readily familiar. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more 11 than one day after date of deposit for mailing in affidavit. 12 By causing a true copy thereof to be personally delivered to the person(s) at the 13 address(es) set forth below. 14 By electronically serving the document(s) described above via a Court approved File & Serve vendor on those recipients designated on the Transaction Receipt located on 15 the vendor’s Website. 16 By electronically serving the document(s) to the electronic mail address set forth 17 below on this date before 11:59:59 p.m. pursuant to and consistent with Code of Civil Procedure §§1010.6(a)(2), (4), (5) and 1010.6(e) from email address 18 X timothy.feeney@farmersinsurance.com. 19 20 I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 21 Executed on February 5, 2024, at Oakland, California. 22 23 TIMOTHY C. FEENEY 24 25 26 27 28 MOTION IN LIMINE AND ORDER TO REQUEST THE COURT APPLY THE PROPER SETOFF AFTER THE VERDICT - 4 1 Re: Peric v. Lotus Hospitality II, Inc., et al. Case Number: 21-CIV-04971 2 SERVICE LIST 3 Nikolaus Reed, Esq. 4 Law Offices of Nikolaus W. Reed 40 Pier, Suite 7 5 San Francisco, CA 94107 Attorney for Plaintiff, DEBORAH KELLY GARLAND PERIC 6 Phone: (415) 940-7766 Fax: (415) 940-7706 7 nikolaus_reed@yahoo.com 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION IN LIMINE AND ORDER TO REQUEST THE COURT APPLY THE PROPER SETOFF AFTER THE VERDICT - 5