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. 3 TO EXCLUDE ANY EVIDENCE,
17    Partners, LLC; McClan Trust; Wild Rose          TESTIMONY, OR ARGUMENT THAT
      Irrevocable Trust; Black Horse Holdings,        THE PARAMONT DEFENDANTS DID
18    LLC; Phil Stoker; Diane Stoker; Scott O’Neil;   NOT RECEIVE THE FILE BEARING
      Dale Huish; and DOES 1–20,                      THE TITLE “DETAIL INV SPENT”
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                                                      AND BATES NUMBER DAVIS000494 IN
20                   Defendants.                      JULY OR AUGUST 2019;
                                                      MEMORANDUM OF POINTS AND
21                                                    AUTHORITIES

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                                   PLAINTIFFS’ MOTION IN LIMINE NO. 3
 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 inserting any evidence, testimony, or argument that the Paramont Defendants did

 6   not receive the file bearing the title “detail inv spent” and Bates number DAVIS000494 in July or

 7   August 2019. This motion is brought pursuant to Evidence Code sections 350 and 352 on the

 8   ground that the fact that the Paramont Defendants received the file bearing the title “detail inv

 9   spent.xlsx” and Bates number DAVIS000494 in July or August 2019 is definitively established by

10   the record, but presenting the foundation for this receipt through the use of native emails, Google

11   Drive links, and complex URLs creates a substantial risk of unduly consuming time at trial and

12   confusing and misleading the jury. This motion is based on this notice of motion, the memorandum

13   of points and authorities filed herewith, and any arguments or evidence that may be presented at

14   the time of hearing.

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                                                    2
                                    PLAINTIFFS’ MOTION IN LIMINE NO. 3
 1                       MEMORANDUM OF POINTS AND AUTHORITIES

 2      I. Legal Standard
 3          Evidence Code section 350 states that “[n]o evidence is admissible except relevant

 4   evidence.” Relevant evidence is that which has a “tendency in reason to prove or disprove any

 5   disputed fact that is of consequence to the determination of the action.” (Evid. Code § 210; People

 6   v. Kelly (1992) 1 Cal.4th 495, 523.)

 7          Evidence Code section 352 further permits the Court in its discretion to “exclude evidence

 8   if its probative value is substantially outweighed by the probability that its admission will (a)

 9   necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of

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

11   897, 904.)

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

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

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

15   451; Peat, Marwick, Mitchell & Co. v. Super. Ct. (1998) 200 Cal.App.3d 272, 288.)

16          II.     Relevant Background
17          It is undisputed that in response to Plaintiffs’ discovery requests, the Paramont Defendants

18   produced a native Excel file bearing the title “detail inv spent.xlsx” and Bates number

19   DAVIS000494. (Vierra Decl. ISO Mots. In Limine ¶ 5 & Ex. A.) The Paramont Defendants

20   designated Greg Davis as the custodian of the file. (Id. & Ex. B.) The Paramont Defendants also

21   produced an exactly identical copy of this file without a Bates stamp but bearing the control

22   number DAVIS000494.xlsx. (Id. & Ex. C.) The source path for the file shows that it came from a

23   folder hosted by the Paramont Defendants called “Moore Invoices” inside a parent folder called

24   “Accounting”. (Id. & Ex. D.) In their § 2031.280(a) identifications, the Paramont Defendants

25   identified this file as one responsive to the request: “All financial, accounting, and governance

26   Documents relating to the Project, including but not limited to bills, checks, receipts, certificates,

27   ownership tables, projections, analyses, account statements, tax records, balance sheets, income

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                                    PLAINTIFFS’ MOTION IN LIMINE NO. 3
 1   statements, cash flow statements, profit or loss statements, investment agreements, operating

 2   agreements, and subscription agreements.” (Id. & Ex. E.)

 3          It is also undisputed that except for in a small number of cases the Paramont Defendants

 4   refused to provide Native versions in response to Plaintiffs’ discovery requests, despite Plaintiffs’

 5   repeated requests for them. (Id. ¶ 6.)

 6          It is also undisputed that Bragg refused (and still refuses) to produce thousands of

 7   responsive files from SVRV’s various accounts. (Id. ¶ 7.)

 8          It is also undisputed that on July 29, 2019, Bragg’s “project manager” for the Moore Road

 9   LLCs, Lukas Leuthold, sent to the Paramont Defendants from his SVRV Google account

10   (lukas@realsv.com) a link to a Google Drive folder called “Moore Invoices.” (Id. ¶ 8 & Ex. H.)

11   Bragg was cc’d on that email. Mr. Leuthold sent the link to the same people again on August 15,

12   2019. (Id. & Ex. I.) The Paramont Defendants also produced to Plaintiffs several email threads

13   containing this July 29, 2019 email and link, including DAVIS004617, DAVIS006095,

14   DAVIS006096, DAVIS008386, DAVIS008676, and DAVIS008677. (Id.) The Paramont

15   Defendants also produced to Plaintiffs several email threads containing the August 15, 2019 email

16   and link, including those bearing the Bates stamps DAVIS006097, DAVIS006099,

17   DAVIS006100, DAVIS00103, DAVIS006105, DAVIS006107, DAVIS008387, DAVIS008678,

18   DAVIS008679, DAVIS008681. (Id.) Plaintiffs also obtained a Native copy of the original email

19   and link from Mr. Bragg’s email account and presented it to the Paramont Defendants, in the

20   presence of their counsel, during their deposition. (Id. & Ex. J)

21          It is also undisputed that when one clicks on the “Moore Invoices” link, one is taken to the

22   URL: https://drive.google.com/drive/u/3/folders/1OqVHvX30rQFemmccuRw99bYmoJEnZsp3.

23   (Id. ¶ 9 & Ex. J.) Plaintiffs demonstrated this via the Native email during the Paramont Defendants’

24   deposition. (Id) That link is still active, and the folder “Moore Invoices” is contained within a

25   folder called “Accounting Moore Rd”. (Id.& Ex. K.)

26          It is also undisputed that in that folder is a file called “detail inv spent.xlsx” that was

27   uploaded in the evening of August 15, 2019 and last modified on January 15, 2020. (Id. ¶ 10.) It

28   is a different version of the file “detail inv spent.xlsx” that would have been in the folder between

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                                    PLAINTIFFS’ MOTION IN LIMINE NO. 3
 1   July 29, 2019 and August 15, 2019, when Mr. Leuthold previously sent the link to the Paramont

 2   Defendants and when they evidently downloaded the file. (Id.) The version of the file that was

 3   previously available, and which the Paramont Defendants evidently downloaded sometime

 4   between July 29, 2019 (when they first received the link) and August 15, 2019 (when the file was

 5   replaced), is no longer available at the above URL, having been replaced by the new file of the

 6   same name. (Id.) But there is no dispute that the Paramont Defendants received the prior version

 7   of the file because they produced it from their own files in response to Plaintiffs’ discovery requests

 8   in this action. (Id.) They did not produce the version of the file that currently exists at the above

 9   URL bearing the same title. (Id.)

10          III.    Reasons Why Argument or Evidence that the Paramont Defendants Did Not
                    Receive the File Bearing the Title “Detail Inv Spent” and Bates Number
11                  DAVIS000494 in July or August 2019 Should be Excluded
12          First, that the Paramont Defendants received this file in July or August 2019 is supported

13   by uncontested factual evidence, as described above. Thus, any argument that they did not receive

14   it would be false and irrelevant, and thus cannot satisfy the standard of having a “tendency in

15   reason to prove or disprove any disputed fact that is of consequence to the determination of the

16   action.” (Evid. Code §§ 210, 350.) Although the fact that the Paramont Defendants received this

17   file in July or August 2019 is “of consequence to the determination of the action,” it is not

18   “disputed.”

19          Second, such argument should independently be excluded because, although it can be

20   definitively disproven through the actions described above, that is an onerous process that is highly

21   likely to “necessitate undue consumption of time” and confuse or mislead the jury. (Evid. Code

22   § 352.) To have to independently establish the Paramont Defendants’ receipt of this file at trial,

23   Plaintiffs would have to open up a Native email (without a Bates stamp), click a link to a URL,

24   look at the name of a file stored at that URL, open of Relativity, confirm that the filenames are

25   identical, show the data to prove the date range during which the file was downloaded, and explain

26   that the fact that the Paramont Defendants produced the file in question means they must have

27   received it. That would not only be a burdensome process, but the jury may not be able to assess

28   what is occurring.

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                                    PLAINTIFFS’ MOTION IN LIMINE NO. 3
 1           Third, such argument and evidence should be excluded because it will prejudice Plaintiffs

 2   by requiring them to devote substantial time to establishing a fact that is undisputed. Furthermore,

 3   walking the jury through the necessary steps will require a steady Internet connection and reliable

 4   Internet browser because Plaintiffs’ counsel will have to log into multiple accounts to display the

 5   file. Given that it is undisputed that the Paramont Defendants received the file, Plaintiffs should

 6   not be required to use substantial time at trial establishing this fact.

 7           To be clear, Plaintiffs do not know that the Paramont Defendants will actually object to

 8   this motion. After all, they produced the file, and their primary Defendant, Mr. Davis, testified that

 9   he “remember[ed] seeing] the document and thought he recalled that “Lukas [Leuthold] emailed

10   it.” (Vierra Decl. ISO Mots. In Limine, Ex. J.) But the Paramont Defendants themselves—rather

11   than their attorneys—likely cannot testify to the metadata associated with the document or how it

12   appears in a document reviewing platform given the manner in which it was produced by counsel.

13   Therefore, by this Motion, Plaintiffs seek to ensure that time is not wasted, and distraction or

14   prejudiced caused, over a fight about the undisputed fact that the Paramont Defendants did receive

15   the file in July or August 2019 (which is evident from its production by the Paramont Defendants

16   to Plaintiffs in this action).

17                                              CONCLUSION

18           Based on the foregoing, Plaintiffs respectfully request the Court to exclude any argument

19   or evidence, testimony, or argument that the Paramont Defendants did not receive the file bearing

20   the title “detail inv spent” and Bates Number DAVIS000494 in July or August 2019.

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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. 3