Preview
1 Ryan van Steenis (SBN 254542)
1601 S Shepherd Dr., #276
2 Houston, Texas 77019
314-749-2284
3
rjvansteenis@gmail.com
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Attorney for Defendants Dave Bragg, and
5 Silicon Valley Real Ventures, LLC
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF SAN MATEO
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9
Robert Arntsen; Mary Lee; Arntsen Family ) Case No.: 22-CIV-01148
10 Partnership, LP; and Brian Christopher Dunn ) Consolidated Case No: 23-CIV-01099
Custodianship, )
11 ) DEFENDANTS BRAGG AND SVRV’S
Plaintiffs, ) OPPOSITION TO PLAINTIFFS’
12 ) MOTIONS IN LIMINE 1, 2, 8, 9, AND 12
vs. )
13 ) Judge: Hon. Jeffrey Finigan
David M. Bragg; Kurtis Stuart Kludt; Silicon ) Trial: March 11, 2024
14 Valley Real Ventures LLC; SVRV 385 Moore, ) Time: 2:00 p.m. (Pacific)
LLC; SVRV 387 Moore, LLC; Gregory J. Davis; ) Dept.: 24
15 Kevin Wolfe; Jason Justesen; Paramont )
Woodside, LLC; and Paramont Capital, LLC; ) Date Filed: March 15, 2022
16 )
)
17 )
Defendants. )
18 )
)
19 )
)
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21 I. Introduction
22 Defendants Bragg and SVRV (“Bragg”) hereby submit this consolidated opposition to the
23 following of Plaintiffs’ Motions in Limine (“MILs”)1 to exclude evidence:
24 • 1: Identifying Bragg as a military professional, veteran, or firefighter;
25 • 2: That Bragg has or had PTSD or may be suicidal;
26 • 8: Regarding Plaintiffs’ prior settlement with Kurtis Kludt;
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28 1
Bragg joins in the Paramont Defendants’ oppositions to Plaintiffs’ other MILs, 3–7, and 9–11.
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Defendants Bragg and SVRV’s Opposition to Plaintiffs’ MIL 1, 2, 8, 9, and 12
1 • 9: Contrary to the well-pleaded allegations in Plaintiffs’ original complaint; and
2 • 12: Of any kind from Bragg and SVRV.
3 Plaintiffs claim the evidence in their favor is “overwhelming” at the conclusion of their Trial
4 Brief, but now seek to limit broad categories (see MIL 12) of evidence that would deprive the jury
5 of relevant evidence bearing directly on the issues in this case, including credibility, which
6 Plaintiffs have endlessly attacked Bragg on. Without presentation of any evidence to consider
7 contrary to what Plaintiffs claim, the jury’s role to independently weigh and evaluate evidence
8 would be rendered moot. And taken all together, Plaintiffs MILs would amount to denying Bragg
9 the opportunity to defend his case.2 The Court should deny Plaintiffs’ MILs, allow such evidence at
10 trial, and permit a competent jury to sort through the evidence presented.
11 II. Argument and Authorities
12 A. Legal Standard
13 Motions in limine “are designed to facilitate the management of a case, generally by
14 deciding difficult evidentiary issues in advance of trial.” Amtower v. Photon Dynamics, Inc. (2008)
15 158 Cal.App.4th 1582, 1593. Evidence Code Section 210 says, in full, the following: “‘Relevant
16 evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay
17 declarant, having any tendency in reason to prove or disprove any disputed fact that is of
18 consequence to the determination of the action” (italics added). Under Evidence Code Section 351,
19 all relevant evidence is admissible, subject to the Court’s discretion under Evidence Codes Section
20 352 to exclude evidence where “its probative value is substantially outweighed by the probability
21 that its admission will (a) necessitate the undue consumption of time or (b) create substantial
22 danger of undue prejudice, of confusing the issues, or of misleading the jury” (italics added).
23 Unduly prejudicial evidence under Evidence Code 352 is when evidence is of nature that would
24 inflame the passions of the jury sufficient for them to depart from reason. See People v. Scott (2011)
25 52 Cal.4th 452, 491 (“Evidence should be excluded as unduly prejudicial when it is of such a nature
26 as to inflame the emotions of the jury, motivating them to use the information, not to logically
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28 2
Defendants are in the odd position of opposing Plaintiffs’ motions in limine to exclude evidence in their own case.
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Defendants Bragg and SVRV’s Opposition to Plaintiffs’ MIL 1, 2, 8, 9, and 12
1 evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors’
2 emotional reaction”). “‘Prejudice’ as contemplated by section 352 is not so sweeping as to include
3 any evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is used in
4 section 352 context, merely because it undermines the opponent’s position or shores up that
5 proponent.” People v. Doolin (2009) 45 Cal.4th 390, 438.
6 B. Argument
7 1. MIL 1 Misunderstands Relevance and “Unduly Prejudicial” Evidence
8 MIL 1 asks the Court to exclude any evidence about Bragg’s history as a honorably
9 discharged, decorated combat veteran and firefighter because such occupations are (1) positively
10 viewed by the public, and (2) such information might incline a jury to “grant leniency” to Bragg as
11 a result of his chosen profession and background as a decorated Marine. The Court should reject the
12 argument and deny the motion.
13 First, Plaintiffs cite to an InsiderMonkey article to support their claim about the public’s
14 positive view of Bragg’s military background and current profession.3 But a random list posted a
15 blog focused on “monkeying” insider traders is not competent evidence sufficient to establish
16 Plaintiffs’ point, much less to exclude evidence based on it.4
17 Second, an inclination towards leniency is not the standard by which evidence should be
18 excluded under Evidence Code Section 352. An individual’s background, experience, and
19 occupation are all relevant to a witness’s credibility under 210, and is not what California courts
20 have in mind when excluding unduly prejudicial evidence under 352. Doolin, supra, at 438.
21 Plaintiffs and their counsel have endlessly and relentlessly attacked Bragg’s credibility in this
22 litigation, alleged serious allegations against him and the Paramont Defendants, and claim in their
23
24 3
MIL 1 at 4:5-7.
25 4
InsiderMonkey’s “about us” description is as follows: “It's a well known fact that insiders profit from their
26 transactions. More than 59,000 different insiders made public filings with the SEC in 2009. The year before that, more
than 65,000 did. Blindly imitating all of these insiders won't yield much. Monkeying only the top insiders, the ones who
27 have the best track record, is a different story. Insider Monkey uses a hybrid evaluation system that exploits insider
transactions and other market anomalies to reduce the number of insiders who are worthy enough to monkey. Insider
28 Monkey also provides high quality evidence based articles to inform individual investors about the intricacies of
investing,” available at: https://www.insidermonkey.com/about-us/.
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Defendants Bragg and SVRV’s Opposition to Plaintiffs’ MIL 1, 2, 8, 9, and 12
1 Trial Brief to have “overwhelming” evidence to prove “every one of their claims.”5 Nevertheless,
2 they still move this Court to exclude relevant evidence because it might be inconvenient for them to
3 a neutral jury. Bragg is entitled to demonstrate to the trier of fact his side of the story, which
4 includes mentioning his background as a Marine and current occupation as a firefighter.
5 2. MIL 2 Relies on Same Incompetent Evidence as MIL 1
6 Plaintiffs’ MIL 2 cites to the same incompetent source as MIL 1 (InsiderMonkey) in support
7 of their argument that Bragg’s diagnosed PTSD disability might incline a jury to grant Bragg
8 “leniency.” Leniency or sympathy for one’s medical condition does not constitute “undue
9 prejudice” under 352 and the Court should deny MIL 2 on those grounds alone. If not, Bragg’s
10 medical condition is relevant for the jury to consider because it informs the jury about the
11 credibility and present condition of the witness, just as Plaintiffs’ medical condition is relevant for
12 the jury to consider (Plaintiffs have suffered strokes). Moreover, it is apparent Bragg suffers from
13 disabilities as he is assisted by a trained and certified service dog (Kermit) in his daily activities.
14 (Kermit will be present at trial). In addition, it is improper for Plaintiffs to disclose Bragg’s
15 statements at a confidential settlement discussion in support of Plaintiffs’ MIL 2 regarding suicide.
16 The question was posed to Plaintiff Martha Dunn but she refused to answer. The silence raises and
17 inference sufficient to question Plaintiffs’ motivation for this lawsuit and is evidence the jury should
18 consider.
19 3. MIL 8 Seeks Exclusion of a Settlement Plaintiffs Made Public
20 This MIL is a backdoor attempt for Plaintiffs to gain a damages windfall. (“The jury may
21 believe that because the Plaintiffs already obtained a significant settlement in this case, they are not
22 entitled to any further recovery and/or the jury must reduce the award by the amount for which
23 Plaintiffs already settled”).6 First, Plaintiffs are not entitled to recover more than their damages.
24 Remedies are to make plaintiffs whole, not profit them at the expense of other parties. Second, the
25 fact and amount of Plaintiffs’ $450,000 settlement with former defendant Kurtis Kludt is publicly
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27
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See Plaintiffs Feb. 20, 2024, Trial Brief at 14:24-25 (“Plaintiffs will present overwhelming and largely uncontroverted
evidence proving every one of their claims”).
28 6
MIL 8, at 4:13-15.
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Defendants Bragg and SVRV’s Opposition to Plaintiffs’ MIL 1, 2, 8, 9, and 12
1 available. Plaintiffs filed a “good-faith” motion that anyone can access on the Court’s case
2 information system stating the parties settled and for the amount. Plaintiffs’ concerns that what the
3 jury may believe as a result is not sufficient to exclude relevant evidence to this case, which speaks
4 to the remaining compensatory damages Plaintiffs are claiming. The jury is capable of
5 understanding Plaintiffs’ position that Kludt’s settlement did not make them whole. Finally,
6 Plaintiffs misstate the collateral source rule in the context of this case. Kludt was a named defendant
7 until settlement, then dismissed, with prejudice. There is no other collateral source (like insurance)
8 for the Plaintiffs to recover from against the remaining defendants. MIL 8 should be denied.
9 4. MIL 9 Seeks to Exclude Evidence on a Dead Pleading, Twice Amended
10 “An amended pleading supplants (i.e., entirely replaces) the prior pleading and it, standing
11 alone, contains all the plaintiff’s allegations and requests for relief.” Foster v. Sexton (2021) 61
12 Cal.App.4th 998, 1035. See also, Cal. Rules of Court, rule 3.1324 (amended pleadings and
13 amendments to pleadings). Plaintiffs are bringing a motion in limine to exclude evidence on a dead
14 pleading they elected to amend twice.
15 Plaintiffs initiated this lawsuit on March 15, 2022, with their original pleading. In June
16 2022, they sought entry of default on that complaint. Instead of seeking default judgment against
17 Bragg on the original complaint, Plaintiffs filed their first amended complaint on August 22, 2022.
18 On February 28, 2023, two business days after the bankruptcy court lifted the automatic stay
19 in Bragg’s Chapter 7 case, Plaintiffs moved for entry of default on the August 22, 2022, First
20 Amended Complaint. This was done by Plaintiffs’ counsel without conference with any party. The
21 clerk entered default, which Bragg moved to vacate. On June 2, 2023, the court granted that relief
22 and vacated the order stating: “Defendants’ default entered on February 28, 2023 are hereby SET
23 ASIDE.” After more pleading challenges by Defendants, Plaintiffs again amended their complaint
24 on June 30, 2023, which is now the live pleadings in this case. Bragg filed a general denial and
25 affirmative defenses to Plaintiffs’ operative pleading, on July 31, 2023.
26 Accordingly, there is no basis in law or in the law of this case to exclude any evidence on a
27 pleading Plaintiffs have long since abandoned. The Court should deny MIL 9.
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Defendants Bragg and SVRV’s Opposition to Plaintiffs’ MIL 1, 2, 8, 9, and 12
1 5. MIL 12 is Really a Motion for Reargument on Plaintiffs’ Recent Sanctions
2 Motion And, Again, Seeks Death Penalty Sanctions
3 One the one hand, Plaintiffs claim they have “overwhelming” evidence for “each of their
4 claims”, but on the other seek death penalty sanctions any chance they get. Plaintiffs seek a second
5 chance in the batter’s box to seek death penalty sanctions against Bragg that the Court declined to
6 enter against him on Plaintiffs’ most recent sanctions request for misuse of the discovery process. In
7 short, MIL 12 is a disguised motion for reargument on to renew their request for sanctions this
8 Court declined to enter on February 23, 2024. But in the latest iteration, Plaintiffs’ ask this Court to
9 prevent Bragg from introducing any evidence at trial while presumably still making him appear at
10 trial to go through it. This is manifestly unfair and would effectively allow Plaintiffs not to have to
11 prove their case on the merits. The MIL is an improper vehicle to seek such drastic sanctions in and
12 should be denied.
13 Respectfully submitted,
14 Date: __March 4, 2024__________ _____________________
15 Ryan van Steenis
Counsel for Defendants
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Defendants Bragg and SVRV’s Opposition to Plaintiffs’ MIL 1, 2, 8, 9, and 12
PROOF OF SERVICE
1
I am over the age of 18 and not a party to this action. I hereby certify that on March 4, 2024,
2
I served the following document(s) on the parties in the above-entitled action:
3
DEFENDANTS BRAGG AND SVRV’S OPPOSITION TO PLAINTIFFS’ MOTIONS IN
4 LIMINE 1, 2, 8, 9, AND 12
5 Via Email: I emailed, pursuant to agreement by the parties, the document(s) referenced above to
6 the following persons at the following email addresses:
7 Collin Vierra
8 cvierra@eimerstahl.com
Counsel for Plaintiffs
9
Jessica Chong
10 jchong@spencerfane.com
Brian Zimmerman
11 bzimmerman@spencerfane.com
12 Nicolas Reisch
nreisch@spencerfane.com
13 Ernesto Aldover
ernesto@arealestatelawfirm.com
14 Counsel for all other Defendants
15 I declare under penalty of perjury under the laws of the State of California that the foregoing is a
16 true and correct statement.
17 Dated: Mar 4, 2024
18 Ryan van Steenis
Attorney for Defendant Bragg and
19 Silicon Valley Real Ventures, LLC
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Proof of Service to Defendants Bragg and SVRV’s Opposition to Plaintiffs’ MIL 1, 2, 8, 9, and 12
Preview
1 Ryan van Steenis (SBN 254542) 1601 S Shepherd Dr., #276 2 Houston, Texas 77019 314-749-2284 3 rjvansteenis@gmail.com 4 Attorney for Defendants Dave Bragg, and 5 Silicon Valley Real Ventures, LLC 6 SUPERIOR COURT OF THE STATE OF CALIFORNIA 7 FOR THE COUNTY OF SAN MATEO 8 9 Robert Arntsen; Mary Lee; Arntsen Family ) Case No.: 22-CIV-01148 10 Partnership, LP; and Brian Christopher Dunn ) Consolidated Case No: 23-CIV-01099 Custodianship, ) 11 ) DEFENDANTS BRAGG AND SVRV’S Plaintiffs, ) OPPOSITION TO PLAINTIFFS’ 12 ) MOTIONS IN LIMINE 1, 2, 8, 9, AND 12 vs. ) 13 ) Judge: Hon. Jeffrey Finigan David M. Bragg; Kurtis Stuart Kludt; Silicon ) Trial: March 11, 2024 14 Valley Real Ventures LLC; SVRV 385 Moore, ) Time: 2:00 p.m. (Pacific) LLC; SVRV 387 Moore, LLC; Gregory J. Davis; ) Dept.: 24 15 Kevin Wolfe; Jason Justesen; Paramont ) Woodside, LLC; and Paramont Capital, LLC; ) Date Filed: March 15, 2022 16 ) ) 17 ) Defendants. ) 18 ) ) 19 ) ) 20 21 I. Introduction 22 Defendants Bragg and SVRV (“Bragg”) hereby submit this consolidated opposition to the 23 following of Plaintiffs’ Motions in Limine (“MILs”)1 to exclude evidence: 24 • 1: Identifying Bragg as a military professional, veteran, or firefighter; 25 • 2: That Bragg has or had PTSD or may be suicidal; 26 • 8: Regarding Plaintiffs’ prior settlement with Kurtis Kludt; 27 28 1 Bragg joins in the Paramont Defendants’ oppositions to Plaintiffs’ other MILs, 3–7, and 9–11. -1- Defendants Bragg and SVRV’s Opposition to Plaintiffs’ MIL 1, 2, 8, 9, and 12 1 • 9: Contrary to the well-pleaded allegations in Plaintiffs’ original complaint; and 2 • 12: Of any kind from Bragg and SVRV. 3 Plaintiffs claim the evidence in their favor is “overwhelming” at the conclusion of their Trial 4 Brief, but now seek to limit broad categories (see MIL 12) of evidence that would deprive the jury 5 of relevant evidence bearing directly on the issues in this case, including credibility, which 6 Plaintiffs have endlessly attacked Bragg on. Without presentation of any evidence to consider 7 contrary to what Plaintiffs claim, the jury’s role to independently weigh and evaluate evidence 8 would be rendered moot. And taken all together, Plaintiffs MILs would amount to denying Bragg 9 the opportunity to defend his case.2 The Court should deny Plaintiffs’ MILs, allow such evidence at 10 trial, and permit a competent jury to sort through the evidence presented. 11 II. Argument and Authorities 12 A. Legal Standard 13 Motions in limine “are designed to facilitate the management of a case, generally by 14 deciding difficult evidentiary issues in advance of trial.” Amtower v. Photon Dynamics, Inc. (2008) 15 158 Cal.App.4th 1582, 1593. Evidence Code Section 210 says, in full, the following: “‘Relevant 16 evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay 17 declarant, having any tendency in reason to prove or disprove any disputed fact that is of 18 consequence to the determination of the action” (italics added). Under Evidence Code Section 351, 19 all relevant evidence is admissible, subject to the Court’s discretion under Evidence Codes Section 20 352 to exclude evidence where “its probative value is substantially outweighed by the probability 21 that its admission will (a) necessitate the undue consumption of time or (b) create substantial 22 danger of undue prejudice, of confusing the issues, or of misleading the jury” (italics added). 23 Unduly prejudicial evidence under Evidence Code 352 is when evidence is of nature that would 24 inflame the passions of the jury sufficient for them to depart from reason. See People v. Scott (2011) 25 52 Cal.4th 452, 491 (“Evidence should be excluded as unduly prejudicial when it is of such a nature 26 as to inflame the emotions of the jury, motivating them to use the information, not to logically 27 28 2 Defendants are in the odd position of opposing Plaintiffs’ motions in limine to exclude evidence in their own case. -2- Defendants Bragg and SVRV’s Opposition to Plaintiffs’ MIL 1, 2, 8, 9, and 12 1 evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors’ 2 emotional reaction”). “‘Prejudice’ as contemplated by section 352 is not so sweeping as to include 3 any evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is used in 4 section 352 context, merely because it undermines the opponent’s position or shores up that 5 proponent.” People v. Doolin (2009) 45 Cal.4th 390, 438. 6 B. Argument 7 1. MIL 1 Misunderstands Relevance and “Unduly Prejudicial” Evidence 8 MIL 1 asks the Court to exclude any evidence about Bragg’s history as a honorably 9 discharged, decorated combat veteran and firefighter because such occupations are (1) positively 10 viewed by the public, and (2) such information might incline a jury to “grant leniency” to Bragg as 11 a result of his chosen profession and background as a decorated Marine. The Court should reject the 12 argument and deny the motion. 13 First, Plaintiffs cite to an InsiderMonkey article to support their claim about the public’s 14 positive view of Bragg’s military background and current profession.3 But a random list posted a 15 blog focused on “monkeying” insider traders is not competent evidence sufficient to establish 16 Plaintiffs’ point, much less to exclude evidence based on it.4 17 Second, an inclination towards leniency is not the standard by which evidence should be 18 excluded under Evidence Code Section 352. An individual’s background, experience, and 19 occupation are all relevant to a witness’s credibility under 210, and is not what California courts 20 have in mind when excluding unduly prejudicial evidence under 352. Doolin, supra, at 438. 21 Plaintiffs and their counsel have endlessly and relentlessly attacked Bragg’s credibility in this 22 litigation, alleged serious allegations against him and the Paramont Defendants, and claim in their 23 24 3 MIL 1 at 4:5-7. 25 4 InsiderMonkey’s “about us” description is as follows: “It's a well known fact that insiders profit from their 26 transactions. More than 59,000 different insiders made public filings with the SEC in 2009. The year before that, more than 65,000 did. Blindly imitating all of these insiders won't yield much. Monkeying only the top insiders, the ones who 27 have the best track record, is a different story. Insider Monkey uses a hybrid evaluation system that exploits insider transactions and other market anomalies to reduce the number of insiders who are worthy enough to monkey. Insider 28 Monkey also provides high quality evidence based articles to inform individual investors about the intricacies of investing,” available at: https://www.insidermonkey.com/about-us/. -3- Defendants Bragg and SVRV’s Opposition to Plaintiffs’ MIL 1, 2, 8, 9, and 12 1 Trial Brief to have “overwhelming” evidence to prove “every one of their claims.”5 Nevertheless, 2 they still move this Court to exclude relevant evidence because it might be inconvenient for them to 3 a neutral jury. Bragg is entitled to demonstrate to the trier of fact his side of the story, which 4 includes mentioning his background as a Marine and current occupation as a firefighter. 5 2. MIL 2 Relies on Same Incompetent Evidence as MIL 1 6 Plaintiffs’ MIL 2 cites to the same incompetent source as MIL 1 (InsiderMonkey) in support 7 of their argument that Bragg’s diagnosed PTSD disability might incline a jury to grant Bragg 8 “leniency.” Leniency or sympathy for one’s medical condition does not constitute “undue 9 prejudice” under 352 and the Court should deny MIL 2 on those grounds alone. If not, Bragg’s 10 medical condition is relevant for the jury to consider because it informs the jury about the 11 credibility and present condition of the witness, just as Plaintiffs’ medical condition is relevant for 12 the jury to consider (Plaintiffs have suffered strokes). Moreover, it is apparent Bragg suffers from 13 disabilities as he is assisted by a trained and certified service dog (Kermit) in his daily activities. 14 (Kermit will be present at trial). In addition, it is improper for Plaintiffs to disclose Bragg’s 15 statements at a confidential settlement discussion in support of Plaintiffs’ MIL 2 regarding suicide. 16 The question was posed to Plaintiff Martha Dunn but she refused to answer. The silence raises and 17 inference sufficient to question Plaintiffs’ motivation for this lawsuit and is evidence the jury should 18 consider. 19 3. MIL 8 Seeks Exclusion of a Settlement Plaintiffs Made Public 20 This MIL is a backdoor attempt for Plaintiffs to gain a damages windfall. (“The jury may 21 believe that because the Plaintiffs already obtained a significant settlement in this case, they are not 22 entitled to any further recovery and/or the jury must reduce the award by the amount for which 23 Plaintiffs already settled”).6 First, Plaintiffs are not entitled to recover more than their damages. 24 Remedies are to make plaintiffs whole, not profit them at the expense of other parties. Second, the 25 fact and amount of Plaintiffs’ $450,000 settlement with former defendant Kurtis Kludt is publicly 26 27 5 See Plaintiffs Feb. 20, 2024, Trial Brief at 14:24-25 (“Plaintiffs will present overwhelming and largely uncontroverted evidence proving every one of their claims”). 28 6 MIL 8, at 4:13-15. -4- Defendants Bragg and SVRV’s Opposition to Plaintiffs’ MIL 1, 2, 8, 9, and 12 1 available. Plaintiffs filed a “good-faith” motion that anyone can access on the Court’s case 2 information system stating the parties settled and for the amount. Plaintiffs’ concerns that what the 3 jury may believe as a result is not sufficient to exclude relevant evidence to this case, which speaks 4 to the remaining compensatory damages Plaintiffs are claiming. The jury is capable of 5 understanding Plaintiffs’ position that Kludt’s settlement did not make them whole. Finally, 6 Plaintiffs misstate the collateral source rule in the context of this case. Kludt was a named defendant 7 until settlement, then dismissed, with prejudice. There is no other collateral source (like insurance) 8 for the Plaintiffs to recover from against the remaining defendants. MIL 8 should be denied. 9 4. MIL 9 Seeks to Exclude Evidence on a Dead Pleading, Twice Amended 10 “An amended pleading supplants (i.e., entirely replaces) the prior pleading and it, standing 11 alone, contains all the plaintiff’s allegations and requests for relief.” Foster v. Sexton (2021) 61 12 Cal.App.4th 998, 1035. See also, Cal. Rules of Court, rule 3.1324 (amended pleadings and 13 amendments to pleadings). Plaintiffs are bringing a motion in limine to exclude evidence on a dead 14 pleading they elected to amend twice. 15 Plaintiffs initiated this lawsuit on March 15, 2022, with their original pleading. In June 16 2022, they sought entry of default on that complaint. Instead of seeking default judgment against 17 Bragg on the original complaint, Plaintiffs filed their first amended complaint on August 22, 2022. 18 On February 28, 2023, two business days after the bankruptcy court lifted the automatic stay 19 in Bragg’s Chapter 7 case, Plaintiffs moved for entry of default on the August 22, 2022, First 20 Amended Complaint. This was done by Plaintiffs’ counsel without conference with any party. The 21 clerk entered default, which Bragg moved to vacate. On June 2, 2023, the court granted that relief 22 and vacated the order stating: “Defendants’ default entered on February 28, 2023 are hereby SET 23 ASIDE.” After more pleading challenges by Defendants, Plaintiffs again amended their complaint 24 on June 30, 2023, which is now the live pleadings in this case. Bragg filed a general denial and 25 affirmative defenses to Plaintiffs’ operative pleading, on July 31, 2023. 26 Accordingly, there is no basis in law or in the law of this case to exclude any evidence on a 27 pleading Plaintiffs have long since abandoned. The Court should deny MIL 9. 28 -5- Defendants Bragg and SVRV’s Opposition to Plaintiffs’ MIL 1, 2, 8, 9, and 12 1 5. MIL 12 is Really a Motion for Reargument on Plaintiffs’ Recent Sanctions 2 Motion And, Again, Seeks Death Penalty Sanctions 3 One the one hand, Plaintiffs claim they have “overwhelming” evidence for “each of their 4 claims”, but on the other seek death penalty sanctions any chance they get. Plaintiffs seek a second 5 chance in the batter’s box to seek death penalty sanctions against Bragg that the Court declined to 6 enter against him on Plaintiffs’ most recent sanctions request for misuse of the discovery process. In 7 short, MIL 12 is a disguised motion for reargument on to renew their request for sanctions this 8 Court declined to enter on February 23, 2024. But in the latest iteration, Plaintiffs’ ask this Court to 9 prevent Bragg from introducing any evidence at trial while presumably still making him appear at 10 trial to go through it. This is manifestly unfair and would effectively allow Plaintiffs not to have to 11 prove their case on the merits. The MIL is an improper vehicle to seek such drastic sanctions in and 12 should be denied. 13 Respectfully submitted, 14 Date: __March 4, 2024__________ _____________________ 15 Ryan van Steenis Counsel for Defendants 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- Defendants Bragg and SVRV’s Opposition to Plaintiffs’ MIL 1, 2, 8, 9, and 12 PROOF OF SERVICE 1 I am over the age of 18 and not a party to this action. I hereby certify that on March 4, 2024, 2 I served the following document(s) on the parties in the above-entitled action: 3 DEFENDANTS BRAGG AND SVRV’S OPPOSITION TO PLAINTIFFS’ MOTIONS IN 4 LIMINE 1, 2, 8, 9, AND 12 5 Via Email: I emailed, pursuant to agreement by the parties, the document(s) referenced above to 6 the following persons at the following email addresses: 7 Collin Vierra 8 cvierra@eimerstahl.com Counsel for Plaintiffs 9 Jessica Chong 10 jchong@spencerfane.com Brian Zimmerman 11 bzimmerman@spencerfane.com 12 Nicolas Reisch nreisch@spencerfane.com 13 Ernesto Aldover ernesto@arealestatelawfirm.com 14 Counsel for all other Defendants 15 I declare under penalty of perjury under the laws of the State of California that the foregoing is a 16 true and correct statement. 17 Dated: Mar 4, 2024 18 Ryan van Steenis Attorney for Defendant Bragg and 19 Silicon Valley Real Ventures, LLC 20 21 22 23 24 25 26 27 28 -1- Proof of Service to Defendants Bragg and SVRV’s Opposition to Plaintiffs’ MIL 1, 2, 8, 9, and 12