Document for ARNTSEN FAMILY PARTNERSHIP, LP, et al vs. GREGORY J DAVIS, et al

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                                1   Collin J. Vierra (State Bar No. 322720)
     EIMER STAHL LLP
 2   99 Almaden Blvd., Suite 600
     San Jose, CA 95113-1605
 3   Telephone: (408) 889-1668
 4   Email: cvierra@eimerstahl.com

 5   Attorney for Plaintiffs

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 7                     SUPERIOR COURT OF THE STATE OF CALIFORNIA
                                      COUNTY OF SAN MATEO
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      Robert Arntsen; Mary Lee; Arntsen Family        Case No. 22-CIV-01148
10    Partnership, LP; Brian Christopher Dunn         Consolidated with Case No. 23-CIV-01099
      Custodianship, John Ho, and Quanyu Huang;
11                                                    Date: March 11, 2024
12                   Plaintiffs,                      Time: 2:00 p.m.
      v.                                              Dept. 24
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      David M. Bragg; Silicon Valley Real Ventures    Date Action Filed: March 15, 2022
14    LLC; SVRV 385 Moore, LLC; SVRV 387
      Moore, LLC; Gregory J. Davis; Kevin Wolfe;      Hon. Jeffrey Finigan
15    Jason Justesen; Paramont Woodside, LLC;
16    Paramont Capital, LLC; Monks Family Trust;      PLAINTIFFS’ MOTION IN LIMINE
      TEH Capital LLC; Caproc III, LLC; WZ            NO. 4 TO EXCLUDE ALL DEPOSITION
17    Partners, LLC; McClan Trust; Wild Rose          ANSWERS TO WHICH CHANGES
      Irrevocable Trust; Black Horse Holdings,        WERE TIMELY MADE THROUGH
18    LLC; Phil Stoker; Diane Stoker; Scott O’Neil;   ERRATA, OR QUESTIONS ABOUT
      Dale Huish; and DOES 1–20,                      THE SAME; MEMORANDUM OF
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                                                      POINTS AND AUTHORITIES
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                                   PLAINTIFFS’ MOTION IN LIMINE NO. 4
 1          TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

 2          Please take notice that on March 11, 2024, at 9:00 a.m., in Department 24 of the Superior

 3   Court of California, County of San Mateo, located at 400 County Center, Redwood City,

 4   California, Plaintiffs will move in limine for an order preventing Defendants, their counsel, and all

 5   witnesses from introducing any of the parties’ deposition answers to which changes were timely

 6   made through errata, or proffering questions about the same. This motion is brought pursuant to

 7   Evidence Code sections 350 and 352 and Code of Civil Procedure 2025.520 on the ground that

 8   this information will necessitate an undue consumption of time, create a substantial danger of

 9   confusing the issues and misleading the jury, and violate the Code of Civil Procedure as to

10   deposition testimony. This motion is based on this notice of motion, the memorandum of points

11   and authorities filed herewith, and any arguments or evidence that may be presented at the time of

12   hearing.

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                                    PLAINTIFFS’ MOTION IN LIMINE NO. 4
 1                       MEMORANDUM OF POINTS AND AUTHORITIES

 2      I. Legal Standard
 3          Evidence Code section 352 permits the Court in its discretion to “exclude evidence if its

 4   probative value is substantially outweighed by the probability that its admission will (a) necessitate

 5   undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the

 6   issues, or of misleading the jury.” (See also People v. Cardenas (1982) 31 Cal.3d 897, 904.)

 7          This Court also has inherent power to grant a motion in limine to exclude “any kind of

 8   evidence which could be objected to at trial, either as irrelevant or subject to discretionary

 9   exclusion as unduly prejudicial.” (Clemens v. Am. Warranty Corp. (1987) 193 Cal.App.3d 444,

10   451; Peat, Marwick, Mitchell & Co. v. Super. Ct. (1998) 200 Cal.App.3d 272, 288.)

11          II.     Relevant Background
12          Three Plaintiffs are senior citizens above the age of 70: Bob Arntsen, Martha Dunn, and

13   Mary Lee. Defendants took the deposition of Plaintiff Bob Arntsen on July 18, 2023 approximately

14   2 months after he suffered a near-fatal stroke, from which doctors were not able to fully remove

15   the clot from his brain and from which they said it would take him 6–12 months minimum to fully

16   recover (if he would fully recover at all). Defendants’ counsel also did not disclose the location of

17   Bob’s deposition until the evening before it took place. Defendants took the deposition of Plaintiff

18   Mary Lee on July 21, 2023. Mary suffered a stroke in August 2022. Defendants took the deposition

19   of Plaintiff Martha Dunn on August 31, 2023. Martha suffered gastrointestinal and cardiac distress

20   during and after her deposition, resulting in her being taken to the emergency room nearly

21   immediately after her deposition concluded. Defendants’ counsel incessantly badgered and misled

22   the Plaintiffs during their depositions, including by making false statements to them in lieu of

23   asking them actual deposition questions. Defendants’ counsel refused to accommodate reasonable

24   breaks even after hour-long stretches of testimony by Plaintiffs, and even complained about

25   Plaintiff Martha Dunn using the restroom when she was suffering from medical distress.

26   Defendants’ counsel recognized Bob’s confusion during his deposition—including his difficulty

27   remembering whether he had been involved in prior lawsuits, his confusion in distinguishing

28   between operating agreements he saw in February 2018 (which he thought mentioned Paramont,

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                                    PLAINTIFFS’ MOTION IN LIMINE NO. 4
 1   even though no one disputes that they did not, because Paramont had no connection to the Moore

 2   Road Project until months later) and June 2019. (Vierra Decl. ISO Mots. In Limine ¶ 11.)

 3          Under Code of Civil Procedure § 2025.520(b), “[f]or 30 days following each notice [of the

 4   original transcript for the deposition], unless the attending parties and the deponent agree on the

 5   record or otherwise in writing to a longer or shorter time period, the deponent may change the

 6   form or the substance of the answer to a question, and may either approve the transcript of the

 7   deposition by signing it, or refuse to approve the transcript by not signing it.” Id. (emphasis added).

 8   The deposition is then deemed valid (if at all) only subject to the changes made by the deponent.

 9   (Id. subd. (f).) In this case, Plaintiffs “change[d] the form or the substance of the answer[s] to

10   [certain] question[s]” in their deposition transcripts and provided those changes to counsel and the

11   deposition officers via errata sheets within the time prescribed. Plaintiffs did so after carefully

12   reviewing their deposition transcripts. Each Plaintiff reviewed their deposition transcript in full

13   outside the presence of counsel. (Vierra Decl. ISO Mots. In Limine ¶ 12.)

14          Code of Civil Procedure § 2025.520(g)–(h) allows a party to “make[] . . . a motion to

15   suppress a deposition,” but no such motion has been brought by any party in this action. In addition,

16   Code of Civil Procedure § 2025.450 allows a party to bring a motion to compel further deposition

17   testimony, but no such motion has been brought by any party in this action. Those motions could

18   have been brought at any time during the past 5-plus months. Defendants have long been in

19   possession of Plaintiffs’ errata (and have cited them in this Court). But they declined to bring any

20   motion seeking to suppress Plaintiffs’ deposition errata and/or to compel further deposition

21   responses (let alone began the pre-discovery motion prerequisites of engaging in a meet-and-

22   confer process, holding an Informal Discovery Conference, etc.). Thus, apart from the objections

23   made during each deposition with respect to which the parties reserve their rights, the parties have

24   each accepted the errata submitted by other parties in connection with their respective depositions

25   testimony.

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                                    PLAINTIFFS’ MOTION IN LIMINE NO. 4
            III.    Reasons Why Deposition Answers to Which Changes Were Timely Made,
 1                  and Any Questions About Those Changes, Should be Excluded
 2          First, any deposition testimony subsequently corrected by errata sheets should be excluded

 3   because the probative value of such testimony is substantially outweighed by the probability that

 4   its introduction would necessitate undue consumption of time. (Code Civ. Pro. § 352.) If each

 5   deponent were to be cross-examined on the testimony contained in their uncorrected transcript,

 6   deponent’s counsel would undoubtedly raise an objection in each instance to the introduction of

 7   testimony to which changes were lawfully made pursuant to Code of Civil Procedure

 8   § 2025.520(b). Moreover, deponent’s counsel would then have to introduce the corrected

 9   transcripts on redirect and give the deponent the opportunity not only to explain their testimony,

10   but also any reasons for any changes to their answers. That would cause a substantial multiplication

11   of proceedings. If any party had concerns about any changes made to the answers in a deponent’s

12   testimony, they have had months to bring a motion to suppress and/or compel to have the issue

13   resolved. Plaintiffs’ deposition errata were all provided between September and October 2023. But

14   no party has brought any such motion, and they have thereby assented to all changes submitted to

15   the deponents’ transcripts. (Vierra Decl. ISO Mots. In Limine ¶ 12.)

16          Second, such evidence should independently be excluded because its probative value is

17   substantially outweighed by the probability that its admission will (a) confuse the issues, and/or

18   (b) mislead the jury. (Code Civ. Pro. § 352.) It would be difficult to explain to a jury the statutory

19   basis by which a party may “change the form or the substance of the answer to a question” in a

20   deposition; the implications of the other parties’ decisions not to move to suppress such testimony

21   and/or move to compel further testimony; and how to weigh any changes made to a deponent’s

22   testimony. Instead, the jury would likely be confused as to which testimony is supposed to be

23   considered and which is not, and whether changes were permitted. It would also create a sideshow

24   over the propriety of any changes to the deposition transcript, rather than the issues that the jury

25   should be considering: the validity of Plaintiffs’ claims and Defendants’ defenses. Each party has

26   the opportunity cross-examine the witnesses/deponents during trial, but they should not be

27   permitted to cause confusion and misdirection by introducing deposition testimony that was

28   changed consistent with the Code of Civil Procedure and to which Defendants never objected.

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                                    PLAINTIFFS’ MOTION IN LIMINE NO. 4
 1          More fundamentally, inasmuch as Plaintiffs’ deposition testimony is admissible consistent

 2   with Code of Civil Procedure § 2025.520, their deposition transcripts may be submitted only with

 3   the changes that they made to them. This is without prejudice, of course, to Defendants’ ability to

 4   ask the same questions at trial that they asked during the Plaintiffs’ depositions. But the Code of

 5   Civil Procedure does not allow for the submission of competing transcripts; only the corrected

 6   transcripts may be used.

 7                                           CONCLUSION

 8          Based on the foregoing, Plaintiffs respectfully request the Court to exclude any deposition

 9   answers to which changes were timely made, or questions about those changes.

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     Dated: _February 20, 2024_                           By: ______________________
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                                                               Collin J. Vierra
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                                                               Attorney for Plaintiffs
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                                   PLAINTIFFS’ MOTION IN LIMINE NO. 4