Preview
1 John S. Rueppel (SBN: 267467)
Ann K. Kavanagh (SBN: 260526)
2 Angie Lam (SBN: 244719)
JOHNSTON, KINNEY & ZULAICA LLP
3 101 Montgomery Street, Suite 1600
San Francisco, California 94104
4 Telephone: (415) 693-0550
Facsimile: (415) 693-0500
5 Email: john@jkzllp.com
angie.lam@jkzllp.com
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Attorneys for Plaintiff,
7 Lisa Keith
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10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 IN THE COUNTY OF NAPA
12 LISA KEITH, CASE NO: 22CV001269
13 Plaintiff, PLAINTIFF, LISA KEITH’S NOTICE OF
MOTION AND MOTION IN LIMINE NO.
14 v. ONE TO EXCLUDE EVIDENCE NOT
PREVIOUSLY DISCLOSED
15 CELESTE WHITE, an individual, ROBERT
WHITE, an individual, the VALLEY ROCK
16 FOUNDATION, aka THE BAR 49 Trial Management Conference: March 28, 2024
FOUNDATION, a charitable organization, and Time: 8:30 a.m.
17 DOES 1-50, INCLUSIVE, Judge: Hon. Scott R.L. Young
Dept.: B
18 Defendants. Trial Date: April 2, 2024
Time: 8:30 a.m.
19 Judge: Hon. Scott R.L. Young
Dept.: B
20 Complaint Filed: October 25, 2022
FAC Filed: March 8, 2023
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PLAINTIFF,
f LISA KEITH’S MIL #1 – EXCLUDE EVIDENCE NOT PREVIOUSLY DISCLOSED
1 I. INTRODUCTION
2 1. Plaintiff, Lisa Keith (“Plaintiff”), hereby moves the court for an order in limine to exclude
3 evidence not previously disclosed.
4 2. This motion is based on the memorandum below, on the papers and records on file herein,
5 and on such oral and documentary evidence as may be presented at the hearing of this motion.
6 II. FACTUAL SUMMARY
7 3. The Complaint in this matter was filed by Plaintiff on October 22, 2022.
8 4. Discovery was propounded against Defendants in December 2022.
9 5. Plaintiff has subpoenaed the following entities:
10 a. Kenwood Investments;
11 b. Platinum Advisors;
12 c. Singer Associates;
13 d. BusinessWire;
14 e. Cision US Inc.;
15 f. LinkedIn Corp.;
16 g. Meta Platforms (Facebook); and
17 h. X Corp.
18 6. Of the entities subpoenaed, many of them have not responded, delayed response and/or
19 avoided service despite repeated communications.
20 7. Several of these entities are now represented by counsel for Defendants with regard to
21 responding/objecting to the subpoenas.
22 III. MEMORANDUM OF POINTS AND AUTHORITIES
23 8. Plaintiff requests that this Court grant an order in limine prohibiting Defendants from
24 introducing at trial any documents requested but not previously produced during discovery. Trial courts
25 have the authority to exclude evidence, or to prevent reference to evidence, barred by discovery rules or
26 discovery orders. (Wegner, et al., CAL PRAC. GUIDE: CIVIL TRIALS & EVIDENCE (TRG 2000)
27 4:272.) California courts have recognized the use of motions in limine in this regard. (Zellerino v Brown
28 (1991) 235 Cal.App.3d 1097, 1117.) A party who fails to produce documents in response to valid
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PLAINTIFF,
f LISA KEITH’S MIL #1 – EXCLUDE EVIDENCE NOT PREVIOUSLY DISCLOSED
1 discovery requests may be precluded from introducing previously unproduced documents at trial. (Pate
2 v. Channel Lumber Co. (1997) 51 Cal.App.4th 1441, 1451.)
3 9. In Pate, plaintiff in a landlord-tenant dispute propounded a demand for production of
4 documents. Defendant made available for inspection and copying five boxes of documents responsive
5 to the demand. Thereafter, plaintiff propounded two additional document demands, and defendant
6 provided verified responses, averring that all documents had been produced. Following plaintiff’s case-
7 in-chief in Pate, defendant took the witness stand with a box of documents that it claimed refuted
8 plaintiff’s claims. The trial court precluded the introduction of the documents, finding that the defendant
9 "played fast" with the discovery rules, "for the purpose of gaining a tactical advantage at trial." The
10 Appellate Court affirmed, holding that a party who waits until mid-trial to produce documents is subject
11 to discovery sanctions. "Given defendant's repeated assurances that all relevant ... documents had been
12 produced when in fact they had not, this case does involve a continuous discovery abuse. Second, the
13 late date at which the abuse was discovered left the trial court with no alternative but to impose an
14 evidentiary sanction." (Id. at 1455.)
15 10. In this case, Plaintiff does not know whether Defendants intend to attempt to introduce
16 further documents not produced in discovery. Plaintiff seeks a motion in limine preventing the
17 introduction of new documents at this stage of the litigation. Plaintiff should be able to prepare for trial
18 without the concern that new relevant documents will suddenly appear from Defendants’ files, thereby
19 altering the complexities of the case. Plaintiff therefore seeks a pre-trial order of this Court, under
20 Evidence Code section 352, precluding argument, questioning, and/or introduction of evidence regarding
21 any document not yet produced to Plaintiff.
22 11. In the alternative, Plaintiff requests that this Court require Defendants to make an offer
23 of proof before allowing any such argument, questioning, or introduction of such evidence.
24 IV. PRAYER
25 Wherefore, Petitioner prays for judgment as follows:
26 1. That the Court grant this motion barring Defendants from introducing any evidence at
27 trial that they did not disclose in discovery, and further barring Respondent from referring to, arguing
28 about, questioning an expert witness about, or presenting to an expert witness, any evidence not
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PLAINTIFF,
f LISA KEITH’S MIL #1 – EXCLUDE EVIDENCE NOT PREVIOUSLY DISCLOSED
1 previously disclosed by Respondent; and
2 2. Such other and further Orders as the Court may deem necessary and proper.
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4 Respectfully submitted,
5 JOHNSTON, KINNEY & ZULAICA LLP
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7 Dated: March 14, 2024 By:
John S. Rueppel, Esq.
8 Ann K. Kavanagh, Esq.
Angie Lam, Esq.
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Attorneys for Plaintiff
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PLAINTIFF,
f LISA KEITH’S MIL #1 – EXCLUDE EVIDENCE NOT PREVIOUSLY DISCLOSED
1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, CITY AND COUNTY OF SAN FRANCISCO
3
I am employed in the City and County of San Francisco, State of California. I am over the age of
4 18 years and not a party to the within action; my business address is Johnston Kinney & Zulaica LLP,
101 Montgomery Street, Suite 1600, San Francisco, California 94104. My electronic business address is
5 carolina@jkzllp.com.
6 On March 14, 2024, I served the foregoing document(s):
7
PLAINTIFF LISA KEITH’S NOTICE OF MOTION AND MOTION IN LIMINE NO.
8 ONE TO EXCLUDE EVIDENCE NOT PREVIOUSLY DISCLOSED
9 I served the documents on the person or persons listed below as follows:
10 Jeffrey E. Tsai
Kathleen S. Kizer
11 DLA PIPER LLP (US)
555 Mission Street, Suite 2400
12 San Francisco, CA 94105
Jeff.tsai@us.dlapiper.com
13 Katy.kizer@us.dlapiper.com
Attorneys for Defendants
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15 [X] (BY EMAIL) Pursuant to Code of Civil Procedure section 1010.6, I caused the document(s) to
be electronically transmitted by me to the persons listed in the above email address(es). I did not receive
16 within a reasonable time after the transmission, any electronic message or other indication that the
transmission was unsuccessful.
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I declare under penalty of perjury under the laws of the State of California that the foregoing is
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true and correct.
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20 Executed on March 14, 2024, at San Francisco, California.
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Carolina Ramos
23 4856-2852-2666, v. 6
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PLAINTIFF,
f LISA KEITH’S MIL #1 – EXCLUDE EVIDENCE NOT PREVIOUSLY DISCLOSED
Preview
1 John S. Rueppel (SBN: 267467) Ann K. Kavanagh (SBN: 260526) 2 Angie Lam (SBN: 244719) JOHNSTON, KINNEY & ZULAICA LLP 3 101 Montgomery Street, Suite 1600 San Francisco, California 94104 4 Telephone: (415) 693-0550 Facsimile: (415) 693-0500 5 Email: john@jkzllp.com angie.lam@jkzllp.com 6 Attorneys for Plaintiff, 7 Lisa Keith 8 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 IN THE COUNTY OF NAPA 12 LISA KEITH, CASE NO: 22CV001269 13 Plaintiff, PLAINTIFF, LISA KEITH’S NOTICE OF MOTION AND MOTION IN LIMINE NO. 14 v. ONE TO EXCLUDE EVIDENCE NOT PREVIOUSLY DISCLOSED 15 CELESTE WHITE, an individual, ROBERT WHITE, an individual, the VALLEY ROCK 16 FOUNDATION, aka THE BAR 49 Trial Management Conference: March 28, 2024 FOUNDATION, a charitable organization, and Time: 8:30 a.m. 17 DOES 1-50, INCLUSIVE, Judge: Hon. Scott R.L. Young Dept.: B 18 Defendants. Trial Date: April 2, 2024 Time: 8:30 a.m. 19 Judge: Hon. Scott R.L. Young Dept.: B 20 Complaint Filed: October 25, 2022 FAC Filed: March 8, 2023 21 22 23 24 25 26 27 28 1 PLAINTIFF, f LISA KEITH’S MIL #1 – EXCLUDE EVIDENCE NOT PREVIOUSLY DISCLOSED 1 I. INTRODUCTION 2 1. Plaintiff, Lisa Keith (“Plaintiff”), hereby moves the court for an order in limine to exclude 3 evidence not previously disclosed. 4 2. This motion is based on the memorandum below, on the papers and records on file herein, 5 and on such oral and documentary evidence as may be presented at the hearing of this motion. 6 II. FACTUAL SUMMARY 7 3. The Complaint in this matter was filed by Plaintiff on October 22, 2022. 8 4. Discovery was propounded against Defendants in December 2022. 9 5. Plaintiff has subpoenaed the following entities: 10 a. Kenwood Investments; 11 b. Platinum Advisors; 12 c. Singer Associates; 13 d. BusinessWire; 14 e. Cision US Inc.; 15 f. LinkedIn Corp.; 16 g. Meta Platforms (Facebook); and 17 h. X Corp. 18 6. Of the entities subpoenaed, many of them have not responded, delayed response and/or 19 avoided service despite repeated communications. 20 7. Several of these entities are now represented by counsel for Defendants with regard to 21 responding/objecting to the subpoenas. 22 III. MEMORANDUM OF POINTS AND AUTHORITIES 23 8. Plaintiff requests that this Court grant an order in limine prohibiting Defendants from 24 introducing at trial any documents requested but not previously produced during discovery. Trial courts 25 have the authority to exclude evidence, or to prevent reference to evidence, barred by discovery rules or 26 discovery orders. (Wegner, et al., CAL PRAC. GUIDE: CIVIL TRIALS & EVIDENCE (TRG 2000) 27 4:272.) California courts have recognized the use of motions in limine in this regard. (Zellerino v Brown 28 (1991) 235 Cal.App.3d 1097, 1117.) A party who fails to produce documents in response to valid 2 PLAINTIFF, f LISA KEITH’S MIL #1 – EXCLUDE EVIDENCE NOT PREVIOUSLY DISCLOSED 1 discovery requests may be precluded from introducing previously unproduced documents at trial. (Pate 2 v. Channel Lumber Co. (1997) 51 Cal.App.4th 1441, 1451.) 3 9. In Pate, plaintiff in a landlord-tenant dispute propounded a demand for production of 4 documents. Defendant made available for inspection and copying five boxes of documents responsive 5 to the demand. Thereafter, plaintiff propounded two additional document demands, and defendant 6 provided verified responses, averring that all documents had been produced. Following plaintiff’s case- 7 in-chief in Pate, defendant took the witness stand with a box of documents that it claimed refuted 8 plaintiff’s claims. The trial court precluded the introduction of the documents, finding that the defendant 9 "played fast" with the discovery rules, "for the purpose of gaining a tactical advantage at trial." The 10 Appellate Court affirmed, holding that a party who waits until mid-trial to produce documents is subject 11 to discovery sanctions. "Given defendant's repeated assurances that all relevant ... documents had been 12 produced when in fact they had not, this case does involve a continuous discovery abuse. Second, the 13 late date at which the abuse was discovered left the trial court with no alternative but to impose an 14 evidentiary sanction." (Id. at 1455.) 15 10. In this case, Plaintiff does not know whether Defendants intend to attempt to introduce 16 further documents not produced in discovery. Plaintiff seeks a motion in limine preventing the 17 introduction of new documents at this stage of the litigation. Plaintiff should be able to prepare for trial 18 without the concern that new relevant documents will suddenly appear from Defendants’ files, thereby 19 altering the complexities of the case. Plaintiff therefore seeks a pre-trial order of this Court, under 20 Evidence Code section 352, precluding argument, questioning, and/or introduction of evidence regarding 21 any document not yet produced to Plaintiff. 22 11. In the alternative, Plaintiff requests that this Court require Defendants to make an offer 23 of proof before allowing any such argument, questioning, or introduction of such evidence. 24 IV. PRAYER 25 Wherefore, Petitioner prays for judgment as follows: 26 1. That the Court grant this motion barring Defendants from introducing any evidence at 27 trial that they did not disclose in discovery, and further barring Respondent from referring to, arguing 28 about, questioning an expert witness about, or presenting to an expert witness, any evidence not 3 PLAINTIFF, f LISA KEITH’S MIL #1 – EXCLUDE EVIDENCE NOT PREVIOUSLY DISCLOSED 1 previously disclosed by Respondent; and 2 2. Such other and further Orders as the Court may deem necessary and proper. 3 4 Respectfully submitted, 5 JOHNSTON, KINNEY & ZULAICA LLP 6 7 Dated: March 14, 2024 By: John S. Rueppel, Esq. 8 Ann K. Kavanagh, Esq. Angie Lam, Esq. 9 Attorneys for Plaintiff 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 PLAINTIFF, f LISA KEITH’S MIL #1 – EXCLUDE EVIDENCE NOT PREVIOUSLY DISCLOSED 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA, CITY AND COUNTY OF SAN FRANCISCO 3 I am employed in the City and County of San Francisco, State of California. I am over the age of 4 18 years and not a party to the within action; my business address is Johnston Kinney & Zulaica LLP, 101 Montgomery Street, Suite 1600, San Francisco, California 94104. My electronic business address is 5 carolina@jkzllp.com. 6 On March 14, 2024, I served the foregoing document(s): 7 PLAINTIFF LISA KEITH’S NOTICE OF MOTION AND MOTION IN LIMINE NO. 8 ONE TO EXCLUDE EVIDENCE NOT PREVIOUSLY DISCLOSED 9 I served the documents on the person or persons listed below as follows: 10 Jeffrey E. Tsai Kathleen S. Kizer 11 DLA PIPER LLP (US) 555 Mission Street, Suite 2400 12 San Francisco, CA 94105 Jeff.tsai@us.dlapiper.com 13 Katy.kizer@us.dlapiper.com Attorneys for Defendants 14 15 [X] (BY EMAIL) Pursuant to Code of Civil Procedure section 1010.6, I caused the document(s) to be electronically transmitted by me to the persons listed in the above email address(es). I did not receive 16 within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. 17 I declare under penalty of perjury under the laws of the State of California that the foregoing is 18 true and correct. 19 20 Executed on March 14, 2024, at San Francisco, California. 21 22 Carolina Ramos 23 4856-2852-2666, v. 6 24 25 26 27 28 5 PLAINTIFF, f LISA KEITH’S MIL #1 – EXCLUDE EVIDENCE NOT PREVIOUSLY DISCLOSED