Preview
E-FILED
9/29/2023 10:24 AM
Superior Court of California
County of Fresno
By: J enny Xiong, Deputy
Whitney, Thompson & Jeffcoach LLP
Timothy L. Thompson, #133537
tthompson@wtjlaw.com
Nikole E. Cunningham, #277976
cunningham@wtjlaw.com
Jacob S. Sarabian, #322108
jsarabian@wtjlaw.com
970 W. Alluvial Ave.
Fresno, California 93711
Telephone: (559) 753-2550
Facsimile: (559) 753-2560
Iversen Proctor LLP
Michael J. Proctor, #148235
michael@iversenproctor.com
Guy C. Iversen, #150883
guy@iversenproctor.com
Marc S. Harris, #136647
10 narc@iversenproctor.com
1325 Palmetto Street
11 Los Angeles, CA 90013
12 Attorneys for Defendant/Cross-Complainant,
Archer Daniels Midland Company
13
14 SUPERIOR COURT OF THE STATE OF CALIFORNIA
15 COUNTY OF FRESNO, B. F. SISK COURTHOUSE
16 RICHARD BEST TRANSFER, INC., a Case No. 17CECG01022
California Corporation,
17 ARCHER DANIELS MIDLAND’S
Plaintiff, MOTION IN LIMINE NO. 5 TO
18 EXCLUDE TESTIMONY REFERRING
v TO “BIG CORPORATIONS” LIKE ADM.
19 ONLY CARING ABOUT THE BOTTOM
ARCHER DANIELS MIDLAND LINE; SUPPORTING DECLARATION
20 COMPANY, a Delaware Corporation;
NATASHA DUKES, an individual; SHAWN [MOTION IN LIMINE NO. 5]
21 SAWA, an individual; AMBER M. ROSE aka
AMBER M. SAWA, an individual; and DOES Date: October 2, 2023
22 1-25, inclusive, Time: 9:00 a.m.
Dept.: 503
23 Defendants.
Assigned for All Purposes to:
24 Hon. Jeffrey Y. Hamilton
ARCHER DANIELS MIDLAND
25 COMPANY, a Delaware Corporation, Action Fil ed: March 28, 2017
Trial Date October 2, 2023
26 Cross-Complainant,
27 v
28 RICHARD BEST TRANSFER, INC., a
WHITNEY
THOMPSON &
JEFFCOACH
05026.00001 0594981 1.000 1
ADM’S MOTION IN LIMINE NO. 5
California Corporation; PORT OF IVORY,
LLC, a California Limited Liability Company;
RICHARD BEST, an individual; WYATT
BEST, an individual; SHAWN SAWA, an
individual, and doing business as AMR
CONSULTING; AMBER MARIE ROSE
SAWA, an individual, and doing business as
AMR CONSULTING; THOMAS SCAIFE, an
individual, and doing business as SCAIFE
COMMODITIES; CHARLES LITTLEFIELD.
an individual, NATASHA DUKES, an
individual; and ROES 1-25, inclusive,
Cross-Defendants.
Defendant/Cross-Complainant ARCHER DANIELS MIDLAND COMPANY (“ADM”)
10 hereby moves this Court for an order in limine excluding evidence or reference by Plaintiff/Cross-
11 Defendant RICHARD BEST TRANSFER, INC. (“RBT”) and Cross-Defendants PORT OF
12 IVORY, LLC, RICHARD BEST, WYATT BEST, SHAWN SAWA, AMR CONSULTING,
13 AMBER MARIE ROSE SAWA, AMR CONSULTING, THOMAS SCAIFE, SCAIFE
14 COMMODITIES, CHARLES LITTLEFIELD, their counsel, witnesses or anyone else involved in
15 these proceedings from referring to, introducing, mentioning, arguing, alluding to, or commenting
16 in any respect that ADM, like any “big corporation,” only cares about the “bottom line,” not the
17 safety and quality of its product.
18
I
SUMMARY OF MOTION
19
20 ADM is a Fortune 500 company. It is not a small company, and it provides its food and
21 nutrition products to a national and international market. These are facts that are not in dispute.
22 However, at Richard Best’s deposition, he alluded to ADM’s size and claimed that “these
23 big corporations” only care about “the bottom line,” and that ADM’s focus on the “bottom line” is
24 “criminal.” (Declaration of Jacob S. Sarabian (““Sarabian Decl.”) § 3, Ex. A p. 273:4-11.) By way
25 of this motion, ADM seeks to exclude evidence and argument akin to Mr. Best’s testimony.
26 Specifically, that ADM’s market value or employee headcount is somehow indicative of moral
27 depravity, or that ADM is a soulless corporation ruthlessly focused on the “bottom line.” ADM
28 acknowledges that its status as a large corporation will indirectly come into evidence during the
WHITNEY
THOMPSON &
JEFFCOACH
05026.00001 0594981 1.000 2
ADM’S MOTION IN LIMINE NO. 5
course of this litigation. This is unavoidable. What can be avoided, however, are intentionally
emotive arguments casting RBT as an underdog or small company in comparison to ADM. The
only ostensible purposes in referencing ADM’s size would be to inflame the jury to improperly
conclude that because of ADM’s market capitalization, it committed some wrong or to create an
improper bias in some jurors to think all large companies are inherently bad. However, this matter
should be decided on the merits and overt arguments. References to ADM’s market value, employee
headcount, office locations, or similar remarks are irrelevant and invoke an emotional bias against
ADM. For these reasons, they should be excluded. (Evid. Code, §§ 350, 352.)
IL.
CONCLUSION
10
For all of the foregoing reasons, as well as those to be set forth at the hearing on this matter,
11
ADM respectfully requests that the Court grant this motion in limine to exclude any testimony or
12
argument that ADM like other “big corporations” only cares about the “bottom line.”
13
14
Dated: September 27, 2023 WHITNEY, THOMPSON & JEFFCOACH LLP
15
16
17 By. Fea
Timothy L. Thdmpson
18 Nikole E. Cunningham
Jacob S. Sarabian
19 Attorneys for Defendant/Cross-Complainant, Archer
20 Daniels Midland Company
21
22
23
24
25
26
27
28
WHITNEY
THOMPSON &
JEFFCOACH
05026.00001 0594981 1.000 3
ADM’S MOTION IN LIMINE NO. 5
DECLARATION OF JACOB S. SARABIAN IN SUPPORT OF MIL NO. 5
I, Jacob S. Sarabian, hereby declare as follows:
1 I am an attorney licensed to practice law in the State of California with the law firm
of Whitney, Thompson & Jeffcoach LLP, attorneys of record for Defendant/Cross-Complainant
ARCHER DANIELS MIDLAND COMPANY.
2 I make this declaration based upon my own personal knowledge, and if called upon
to testify to the facts contained herein, I could and would do so competently.
3 A true and correct copy of excerpts from the deposition transcript of Richard Best
Volume 2, dated February 15, 2022, is attached hereto as Exhibit “A.”
10
I declare under penalty of perjury under the laws ofthe State of California that the foregoing
11
is true and correct. This declaration was executed by me on this 27th day of September, 2023 in
12
Fresno, California.
Ju.
13
14
15 Jacob/S/ Sakabian
16
17
18
19
20
21
22
23
24
25
26
27
28
WHITNEY
THOMPSON &
JEFFCOACH
05026.00001 0594981 1.000 4
ADM’S MOTION IN LIMINE NO. 5
EXHIBIT “A”
In the Matter Of:
Richard Best Transfers, Inc. vs Archer Daniels Midland Company
RICHARD BEST, VOLUME 2
February 15, 2022
Job Number: 847897
Litigation Services | 800-330-1112
www. litigationservices.com
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF FRESNO
---000---
RICHARD BEST TRANSFER, INC., a
California Corporation, NO. 17CECG01022
Plaintiff, Volume 2
Pgs. 206 - 306
-vs-
ARCHER DANIELS MIDLAND COMPANY, a
Delaware Corporation; NATASHA DUKES,
an individual; SHAWN SAWA, an
individual; AMBER M. ROSE aka AMBER
M. SAWA, an individual; and
10 DOES 1-25, inclusive,
11 Defendants.
12 AND RELATED CROSS-ACTIONS
13
14 ---000---
15
16
17 The deposition of RICHARD BEST, Volume 2, taken via
18 Zoom on Tuesday, February 15, 2022, commencing at 3:02 p.m.
19 in the above-entitled matter pursuant to all of the
20 provisions of law pertaining to the taking and use of
21 depositions before Kimberly Thayer, CSR, with offices at
22 Fresno, California.
23
24
25 Job No. 847897
RICHARD BEST, VOLUME 2 - 02/15/2022
Page 207
APPEARANCES OF COUNSEL:
FOR RICHARD BEST TRANSFER, INC., RICHARD BEST, CHARLES
LITTLEFIELD, PORT OF IVORY, LLC., WYATT BEST, and THOMAS
SCAIFE dba SCAIFE COMMODITIES:
MARDEROSIAN & COHEN
Attorneys at Law
7797 N. First Street, Suite 101-5
Fresno, California 93720
(559) 441-7991
BY: MICHAEL G. MARDEROSIAN
mgm@mcc-legal.com
HEATHER COHEN
hcohen@mcc-legal.com
FOR ARCHER DANIELS MIDLAND COMPANY:
10 WHITNEY, THOMPSON & JEFFCOACH LLP
Attorneys at Law
11 970 W. Alluvial
Fresno, California 93711
12 (559) 753-2550
BY: TIMOTHY L. THOMPSON
13 tthompson@wtjlaw.com
14
15
16
17
18 Also Present: P.E.S. Video, Suesan Oliver
19 Chuck Littlefield, Loretta Johnson
20 Rebeccah Leal
21
22
23
24
25
Litigation Services 800-330-1112 |
www. litigationservices.com
RICHARD BEST, VOLUME 2 - 02/15/2022
Page 272
yourselves, correct?
A No, sir. IT wouldn't do that and I could not do
that. Salmonella is a toxic -- is a toxic poison. Not only
to cattle, but to people. I was insulted that that man would
ask me to bring that product back and blend it in with his
canola and then have me sell it to the dairy industry here in
the Central Valley of California. I was shocked. I was
appalled.
But that was Shawn Sawa. It was all about the
10 money for him. He didn't care. He didn't care. It was all
11 about the money for Shawn Sawa. That's what it was all
12 about. Just like ADM, it's all about a dollar, it's all
13 about a bottom line. It's all about a dollar.
14 You know, they brought material into my rail site
15
16
17 ‘they're poisoning the dairy industry, basically. That's what
18
19 ‘I'm appalled by that too. I'm a big backer of the
20 dairy industry and the farming industry, because that's where
21 and how I grew up. And it just shocks me now in discovery
22 we're finding out all this crap they sent to me, diverted to
23
24
25 ‘They never came out and took a sample of that product. They
Litigation Services 800-330-1112 |
www. litigationservices.com
RICHARD BEST, VOLUME 2 - 02/15/2022
didn't sample it for aflatoxin, They didn't sample it for
salmonella. They didn't sample it for B. coli. Because it's
all about the bottom line for them.
You know, any other -- any other company or any
disposed of it. Would dispose of it. They wouldn't even
‘think about blending it. But it's all about a dollar. t's
all dollar.
about a
10 know, it's about bottom line. Bottom line. That's just
11 insane, That's criminal. That's criminal.
12 Q. When Shawn Sawa requested that you do this, as you
13 just testified, did you report him to anyone at ADM?
14 A No, I didn't report him. I just didn't do it.
15 MR. MARDEROSIAN: Also, I object to the question.
16 It assumes that his bosses at ADM didn't know what was going
17 on and used Sawa's leverage over Richard to try to use that
18 toxic product.
19 BY MR. THOMPSON:
20 Q. When he asked you to do that, were you already
21 involved with him in this scheme to steal ADM product and
22 sell it through Tom Scaife?
23 A Well, he had a scheme to sell ADM product. I
24 didn't have a scheme, okay. And, yeah, we were already in
25 business. What year did you say that was? You know,
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Preview
E-FILED 9/29/2023 10:24 AM Superior Court of California County of Fresno By: J enny Xiong, Deputy Whitney, Thompson & Jeffcoach LLP Timothy L. Thompson, #133537 tthompson@wtjlaw.com Nikole E. Cunningham, #277976 cunningham@wtjlaw.com Jacob S. Sarabian, #322108 jsarabian@wtjlaw.com 970 W. Alluvial Ave. Fresno, California 93711 Telephone: (559) 753-2550 Facsimile: (559) 753-2560 Iversen Proctor LLP Michael J. Proctor, #148235 michael@iversenproctor.com Guy C. Iversen, #150883 guy@iversenproctor.com Marc S. Harris, #136647 10 narc@iversenproctor.com 1325 Palmetto Street 11 Los Angeles, CA 90013 12 Attorneys for Defendant/Cross-Complainant, Archer Daniels Midland Company 13 14 SUPERIOR COURT OF THE STATE OF CALIFORNIA 15 COUNTY OF FRESNO, B. F. SISK COURTHOUSE 16 RICHARD BEST TRANSFER, INC., a Case No. 17CECG01022 California Corporation, 17 ARCHER DANIELS MIDLAND’S Plaintiff, MOTION IN LIMINE NO. 5 TO 18 EXCLUDE TESTIMONY REFERRING v TO “BIG CORPORATIONS” LIKE ADM. 19 ONLY CARING ABOUT THE BOTTOM ARCHER DANIELS MIDLAND LINE; SUPPORTING DECLARATION 20 COMPANY, a Delaware Corporation; NATASHA DUKES, an individual; SHAWN [MOTION IN LIMINE NO. 5] 21 SAWA, an individual; AMBER M. ROSE aka AMBER M. SAWA, an individual; and DOES Date: October 2, 2023 22 1-25, inclusive, Time: 9:00 a.m. Dept.: 503 23 Defendants. Assigned for All Purposes to: 24 Hon. Jeffrey Y. Hamilton ARCHER DANIELS MIDLAND 25 COMPANY, a Delaware Corporation, Action Fil ed: March 28, 2017 Trial Date October 2, 2023 26 Cross-Complainant, 27 v 28 RICHARD BEST TRANSFER, INC., a WHITNEY THOMPSON & JEFFCOACH 05026.00001 0594981 1.000 1 ADM’S MOTION IN LIMINE NO. 5 California Corporation; PORT OF IVORY, LLC, a California Limited Liability Company; RICHARD BEST, an individual; WYATT BEST, an individual; SHAWN SAWA, an individual, and doing business as AMR CONSULTING; AMBER MARIE ROSE SAWA, an individual, and doing business as AMR CONSULTING; THOMAS SCAIFE, an individual, and doing business as SCAIFE COMMODITIES; CHARLES LITTLEFIELD. an individual, NATASHA DUKES, an individual; and ROES 1-25, inclusive, Cross-Defendants. Defendant/Cross-Complainant ARCHER DANIELS MIDLAND COMPANY (“ADM”) 10 hereby moves this Court for an order in limine excluding evidence or reference by Plaintiff/Cross- 11 Defendant RICHARD BEST TRANSFER, INC. (“RBT”) and Cross-Defendants PORT OF 12 IVORY, LLC, RICHARD BEST, WYATT BEST, SHAWN SAWA, AMR CONSULTING, 13 AMBER MARIE ROSE SAWA, AMR CONSULTING, THOMAS SCAIFE, SCAIFE 14 COMMODITIES, CHARLES LITTLEFIELD, their counsel, witnesses or anyone else involved in 15 these proceedings from referring to, introducing, mentioning, arguing, alluding to, or commenting 16 in any respect that ADM, like any “big corporation,” only cares about the “bottom line,” not the 17 safety and quality of its product. 18 I SUMMARY OF MOTION 19 20 ADM is a Fortune 500 company. It is not a small company, and it provides its food and 21 nutrition products to a national and international market. These are facts that are not in dispute. 22 However, at Richard Best’s deposition, he alluded to ADM’s size and claimed that “these 23 big corporations” only care about “the bottom line,” and that ADM’s focus on the “bottom line” is 24 “criminal.” (Declaration of Jacob S. Sarabian (““Sarabian Decl.”) § 3, Ex. A p. 273:4-11.) By way 25 of this motion, ADM seeks to exclude evidence and argument akin to Mr. Best’s testimony. 26 Specifically, that ADM’s market value or employee headcount is somehow indicative of moral 27 depravity, or that ADM is a soulless corporation ruthlessly focused on the “bottom line.” ADM 28 acknowledges that its status as a large corporation will indirectly come into evidence during the WHITNEY THOMPSON & JEFFCOACH 05026.00001 0594981 1.000 2 ADM’S MOTION IN LIMINE NO. 5 course of this litigation. This is unavoidable. What can be avoided, however, are intentionally emotive arguments casting RBT as an underdog or small company in comparison to ADM. The only ostensible purposes in referencing ADM’s size would be to inflame the jury to improperly conclude that because of ADM’s market capitalization, it committed some wrong or to create an improper bias in some jurors to think all large companies are inherently bad. However, this matter should be decided on the merits and overt arguments. References to ADM’s market value, employee headcount, office locations, or similar remarks are irrelevant and invoke an emotional bias against ADM. For these reasons, they should be excluded. (Evid. Code, §§ 350, 352.) IL. CONCLUSION 10 For all of the foregoing reasons, as well as those to be set forth at the hearing on this matter, 11 ADM respectfully requests that the Court grant this motion in limine to exclude any testimony or 12 argument that ADM like other “big corporations” only cares about the “bottom line.” 13 14 Dated: September 27, 2023 WHITNEY, THOMPSON & JEFFCOACH LLP 15 16 17 By. Fea Timothy L. Thdmpson 18 Nikole E. Cunningham Jacob S. Sarabian 19 Attorneys for Defendant/Cross-Complainant, Archer 20 Daniels Midland Company 21 22 23 24 25 26 27 28 WHITNEY THOMPSON & JEFFCOACH 05026.00001 0594981 1.000 3 ADM’S MOTION IN LIMINE NO. 5 DECLARATION OF JACOB S. SARABIAN IN SUPPORT OF MIL NO. 5 I, Jacob S. Sarabian, hereby declare as follows: 1 I am an attorney licensed to practice law in the State of California with the law firm of Whitney, Thompson & Jeffcoach LLP, attorneys of record for Defendant/Cross-Complainant ARCHER DANIELS MIDLAND COMPANY. 2 I make this declaration based upon my own personal knowledge, and if called upon to testify to the facts contained herein, I could and would do so competently. 3 A true and correct copy of excerpts from the deposition transcript of Richard Best Volume 2, dated February 15, 2022, is attached hereto as Exhibit “A.” 10 I declare under penalty of perjury under the laws ofthe State of California that the foregoing 11 is true and correct. This declaration was executed by me on this 27th day of September, 2023 in 12 Fresno, California. Ju. 13 14 15 Jacob/S/ Sakabian 16 17 18 19 20 21 22 23 24 25 26 27 28 WHITNEY THOMPSON & JEFFCOACH 05026.00001 0594981 1.000 4 ADM’S MOTION IN LIMINE NO. 5 EXHIBIT “A” In the Matter Of: Richard Best Transfers, Inc. vs Archer Daniels Midland Company RICHARD BEST, VOLUME 2 February 15, 2022 Job Number: 847897 Litigation Services | 800-330-1112 www. litigationservices.com SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF FRESNO ---000--- RICHARD BEST TRANSFER, INC., a California Corporation, NO. 17CECG01022 Plaintiff, Volume 2 Pgs. 206 - 306 -vs- ARCHER DANIELS MIDLAND COMPANY, a Delaware Corporation; NATASHA DUKES, an individual; SHAWN SAWA, an individual; AMBER M. ROSE aka AMBER M. SAWA, an individual; and 10 DOES 1-25, inclusive, 11 Defendants. 12 AND RELATED CROSS-ACTIONS 13 14 ---000--- 15 16 17 The deposition of RICHARD BEST, Volume 2, taken via 18 Zoom on Tuesday, February 15, 2022, commencing at 3:02 p.m. 19 in the above-entitled matter pursuant to all of the 20 provisions of law pertaining to the taking and use of 21 depositions before Kimberly Thayer, CSR, with offices at 22 Fresno, California. 23 24 25 Job No. 847897 RICHARD BEST, VOLUME 2 - 02/15/2022 Page 207 APPEARANCES OF COUNSEL: FOR RICHARD BEST TRANSFER, INC., RICHARD BEST, CHARLES LITTLEFIELD, PORT OF IVORY, LLC., WYATT BEST, and THOMAS SCAIFE dba SCAIFE COMMODITIES: MARDEROSIAN & COHEN Attorneys at Law 7797 N. First Street, Suite 101-5 Fresno, California 93720 (559) 441-7991 BY: MICHAEL G. MARDEROSIAN mgm@mcc-legal.com HEATHER COHEN hcohen@mcc-legal.com FOR ARCHER DANIELS MIDLAND COMPANY: 10 WHITNEY, THOMPSON & JEFFCOACH LLP Attorneys at Law 11 970 W. Alluvial Fresno, California 93711 12 (559) 753-2550 BY: TIMOTHY L. THOMPSON 13 tthompson@wtjlaw.com 14 15 16 17 18 Also Present: P.E.S. Video, Suesan Oliver 19 Chuck Littlefield, Loretta Johnson 20 Rebeccah Leal 21 22 23 24 25 Litigation Services 800-330-1112 | www. litigationservices.com RICHARD BEST, VOLUME 2 - 02/15/2022 Page 272 yourselves, correct? A No, sir. IT wouldn't do that and I could not do that. Salmonella is a toxic -- is a toxic poison. Not only to cattle, but to people. I was insulted that that man would ask me to bring that product back and blend it in with his canola and then have me sell it to the dairy industry here in the Central Valley of California. I was shocked. I was appalled. But that was Shawn Sawa. It was all about the 10 money for him. He didn't care. He didn't care. It was all 11 about the money for Shawn Sawa. That's what it was all 12 about. Just like ADM, it's all about a dollar, it's all 13 about a bottom line. It's all about a dollar. 14 You know, they brought material into my rail site 15 16 17 ‘they're poisoning the dairy industry, basically. That's what 18 19 ‘I'm appalled by that too. I'm a big backer of the 20 dairy industry and the farming industry, because that's where 21 and how I grew up. And it just shocks me now in discovery 22 we're finding out all this crap they sent to me, diverted to 23 24 25 ‘They never came out and took a sample of that product. They Litigation Services 800-330-1112 | www. litigationservices.com RICHARD BEST, VOLUME 2 - 02/15/2022 didn't sample it for aflatoxin, They didn't sample it for salmonella. They didn't sample it for B. coli. Because it's all about the bottom line for them. You know, any other -- any other company or any disposed of it. Would dispose of it. They wouldn't even ‘think about blending it. But it's all about a dollar. t's all dollar. about a 10 know, it's about bottom line. Bottom line. That's just 11 insane, That's criminal. That's criminal. 12 Q. When Shawn Sawa requested that you do this, as you 13 just testified, did you report him to anyone at ADM? 14 A No, I didn't report him. I just didn't do it. 15 MR. MARDEROSIAN: Also, I object to the question. 16 It assumes that his bosses at ADM didn't know what was going 17 on and used Sawa's leverage over Richard to try to use that 18 toxic product. 19 BY MR. THOMPSON: 20 Q. When he asked you to do that, were you already 21 involved with him in this scheme to steal ADM product and 22 sell it through Tom Scaife? 23 A Well, he had a scheme to sell ADM product. I 24 didn't have a scheme, okay. And, yeah, we were already in 25 business. What year did you say that was? You know, Litigation Services | 800-330-1112 www. litigationservices.com