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. 12 TO EXCLUDE ANY EVIDENCE
17    Partners, LLC; McClan Trust; Wild Rose          BY DEFENDANTS DAVID M. BRAGG
      Irrevocable Trust; Black Horse Holdings,        AND SILICON VALLEY REAL
18    LLC; Phil Stoker; Diane Stoker; Scott O’Neil;   VENTURES, LLC; MEMORANDUM OF
      Dale Huish; and DOES 1–20,                      POINTS AND AUTHORITIES
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                                   PLAINTIFFS’ MOTION IN LIMINE NO. 12
 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 Bragg and SVRV

 5   from introducing any evidence at trial. This motion is brought pursuant to Evidence Code

 6   sections 350 and 352 and Code of Civil Procedure section 2023.030 on the ground that this

 7   information is irrelevant to Plaintiffs’ claims and Defendants’ defenses, any reference to it will

 8   create a substantial danger of necessitating undue consumption of time and confusing the jury, and

 9   the order is necessary to address extensive discovery violations. This motion is based on this notice

10   of motion, the memorandum of points and authorities filed herewith, and any arguments or

11   evidence that may be presented at the time of hearing.

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                                   PLAINTIFFS’ MOTION IN LIMINE NO. 12
 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          As set forth in further detail in Plaintiffs’ pending motion for terminating sanctions, Bragg

18   has engaged in willful, serial, and egregious abuses of the discovery process for the past two years

19   that continue to this day. Those include spoliation, withholding thousands of documents from

20   Plaintiffs and his own counsel, making false statements, attesting that documents would substitute

21   for written discovery responses while refusing to produce or identify such documents, refusing

22   outright in many cases to respond to written discovery, and more—including in direct violation of

23   the Court’s prior order compelling further responses and sanctioning Bragg $15,000. Bragg has

24   also violated numerous orders of the IDC Commissioner. And Bragg has never identified a single

25   document in accordance with the mandate of Code of Civil Procedure section 2031.280(a), even

26   after promising to do so and being ordered to do so. With trial about to commence, Plaintiffs still

27   lack access to crucial evidence to this case that Bragg admits he has but refuses to produce. The

28   Court should impose a terminating sanction, but if it does not, it should grant this motion.


                                   PLAINTIFFS’ MOTION IN LIMINE NO. 12
            III.    Reasons Why All Evidence From Bragg and SVRV Should Be Excluded
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            First, any evidence that Bragg would wish to admit should be excluded because its
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     probative value would be substantially outweighed by the probability that its admission will create
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     undue prejudice to Plaintiffs, who were entitled to all responsive discovery more than a year-and-
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     a-half ago. It would be wholly unjust to let Bragg introduce evidence at trial when he denied
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     Plaintiffs discovery to which they were entitled for two years—and is still denying it to them.
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     Indeed, in September 2023, the Court already precluded Bragg and SVRV “from offering any
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     exculpatory evidence that Plaintiffs had requested in discovery, but which Bragg/SVRV had not
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     produced/disclosed to Plaintiffs as of the date Plaintiffs filed this Motion (June 12, 2023).” And at
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     that hearing, the Court specifically said that although he was denying certain requests for issue and
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     evidentiary sanctions—and gave Bragg one more opportunity to comply with the Court’s order—
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     the Court would reconsider these requests on motions in limine. (Vierra Reply ISO Mots. In
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     Limine ¶ 14.) Yet Bragg violated that order in spades.
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            As noted, Bragg has also steadfastly refused to comply with mandatory Code of Civil
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     Procedure section 2031.280(a), even after being ordered to do so. All other parties complied. Even
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     inasmuch as Bragg produced any responsive documents, it is enormously prejudicial to Plaintiffs
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     not to know which discovery requests they were produced in response to. For example, without
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     these identifications, Plaintiffs cannot determine which documents Bragg is attesting are financial
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     documents relating to the Moore Road Project and which are junk. And as is uncontested, when
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     Bragg finally made a year-and-a-half late document production, it was rife with literal junk—100
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     examples of which Plaintiffs provided the Court, and which Bragg has not disputed. Bragg should
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     not be permitted to engage in this egregious abuse and then present any evidence at trial.
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            Second, this exclusion is appropriate as an issue or evidentiary sanction under Code of
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     Civil Procedure § 2023.030. The Court already granted much of this sanction when previously
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     punishing Bragg from his discovery abuses, and he has only engaged in myriad more discovery
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     abuses in the months following the Court’s sanction. It is long past time for the Court to impose a
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     terminating sanction on four-time-defaulting and perpetually-discovery-abusing Bragg, but at
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     minimum, the Court should preclude him from introducing evidence at trial.
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                                   PLAINTIFFS’ MOTION IN LIMINE NO. 12
 1                                           CONCLUSION

 2          Based on the foregoing, Plaintiffs respectfully request the Court to exclude any evidence

 3   from Bragg and SVRV during the trial.

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     Dated: _February 20, 2024_                         By: ______________________
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                                                             Collin J. Vierra
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 8   Attorney for Plaintiffs

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                                  PLAINTIFFS’ MOTION IN LIMINE NO. 12