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JEFFREY E. TSAI (SBN 226081)
1 jeff.tsai@us.dlapiper.com
2 KATHLEEN S. KIZER (SBN 246035)
kathy.kizer@us.dlapiper.com
3 EMILY ROSE MARGOLIS (SBN 324089)
emily.margolis@us.dlapiper.com
4 DLA PIPER LLP (US)
555 Mission Street, Suite 2400
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San Francisco, California 94105-2933
6 Tel: 415.836.2500 | Fax: 415.836.2501
7 Attorneys for Defendants
CELESTE WHITE, DR. ROBERT WHITE, and
8 THE VALLEY ROCK FOUNDATION
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF NAPA
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13 LISA KEITH, an individual, CASE NO. 22CV001269
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Plaintiff, DEFENDANTS’ NOTICE OF SUPPLEMENT
15 AND SUPPLEMENT TO MOTION IN LIMINE
v. NO. 6; MEMORANDUM OF POINTS AND
16 CELESTE WHITE, an individual, ROBERT AUTHORITIES
WHITE, an individual, the VALLEY ROCK
17 FOUNDATION, aka THE BAR 49 Date: March 28, 2024
FOUNDATION, a charitable organization, Time: 8:30 a.m.
18 and DOES 1-50, INCLUSIVE, Judge: Hon. Cynthia P. Smith
Dept.: A
19 Defendants.
Complaint Filed: October 25, 2022
20 FAC Filed: March 8, 2023
Trial Mgmt. Conf.: March 28, 2024
21 Trial Date: April 2, 2024
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DEFS’ NOTICE OF SUPPLEMENT TO MOTION IN LIMINE NO. 6; MEMO. OF POINTS AND AUTOHRITIES
CASE NO. 22CV001269
1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
2 PLEASE TAKE NOTICE that, on the date and at the time set forth above for the Trial
3 Management Conference in this matter pursuant to Napa County Superior Court Local Rule 6.2,
4 or as soon before or thereafter at the Court’s discretion as this matter may be heard in Department
5 A of the above-entitled court located at 825 Brown Street, Napa, California 94559, Defendants
6 Valley Rock Foundation (“Foundation”), Dr. Robert White (“Dr. White”), and Celeste White
7 (collectively, “Defendants”) will and hereby do move this Court for an order granting their Motion
8 in Limine No. 6, as supplemented by this Notice of Supplement and Supplement to Motion in
9 Limine No. 6.
10 Bases for Supplement
11 Defendants filed their Omnibus Motions in Limine on March 14, 2024, but reserved their
12 right to supplement Motion in Limine No. 6 regarding Plaintiff’s expert witnesses on the grounds
13 that Plaintiff refused to make one of her expert witnesses, Jessie Stricchiola, available for
14 deposition until March 15, 2024 (after the deadline for filing Motions in Limine). Now that
15 Stricchiola’s deposition has occurred on March 15, 2024, Defendants hereby supplement their
16 Motion in Limine No. 6 to exclude Stricchiola’s testimony on the bases that Stricchiola’s proposed
17 testimony and opinions:
18 [1] are not based on reliable facts;
19 [2] are not relevant; and
20 [3] Plaintiff failed to produce Stricchiola’s documents as required by statute.
21 First, Stricchiola’s expert testimony and opinions are inadmissible because they are not
22 based on reliable facts or data. Stricchiola has provided an opinion regarding the estimated number
23 of outlets that received the press release at issue in this litigation. However, Stricchiola admitted at
24 her deposition (and in her report produced during the deposition) that she did not use reliable data
25 as the foundation of her opinion but instead used a source of data whose reliability she could not
26 confirm. Accordingly, her opinion regarding the number of outlets should be excluded.
27 Second, Stricchiola’s opinion should be excluded for the additional reason that the number
28 of outlets that received the press release is not relevant to any issue to be adjudicated at trial. As
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DEFS’ NOTICE OF SUPPLEMENT TO MOTION IN LIMINE NO. 6; MEMO. OF POINTS AND AUTOHRITIES
CASE NO. 22CV001269
1 explained in Defendants’ Motion in Limine No. 1, the liquidated damages clause in the non-
2 disparagement provision provides for the calculation damages based on the number of
3 communications by a party to the Settlement Agreement that are found to violate the non-
4 disparagement provision and not, contrary to Plaintiff’s arguments, the number of recipients of a
5 communication. Accordingly, Stricchiola’s opinion regarding the estimated number of outlets that
6 purportedly receive the press release is not relevant and not helpful to the jury.
7 Third, as with Plaintiff’s putative expert Michael Taylor, Plaintiff’s counsel yet again
8 sandbagged Defendants by not producing Stricchiola’s documents three court days before the
9 deposition, as required by statute. Instead, Plaintiff produced a subset of Stricchiola’s documents
10 after 5:00 p.m. on the night before her deposition—apparently prompted by Defendants’ counsel
11 demand for the documents. Plaintiff then made a series of additional document dumps—including
12 Stricchiola’s written report—during the deposition, including after the lunch break, so
13 Defendants’ counsel could not review the documents. Defendants are still unable to ascertain
14 whether, as of the time of the filing of this Supplement to their Motion in Limine No. 6, they have
15 received all documents responsive to their subpoenas for either Stricchiola or Taylor.
16 Legal Authority
17 Orders excluding evidence and/or otherwise precluding improper argument are entirely
18 within the Court’s authority. (See Lucas v. County of Los Angeles (1996) 47 Cal.App.4th 277, 284
19 [“A court has inherent equity, supervisory and administrative powers, as well as inherent power to
20 control litigation and conserve judicial resources.”] [citation omitted]; accord Amtower v. Photon
21 Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1595 [“Courts have inherent power, separate from
22 any statutory authority, to control the litigation before them and to adopt any suitable method of
23 practice, even if the method is not specified by statute or by the Rules of Court.”].) “In Limine
24 motions are designed to facilitate the management of a case, generally by deciding difficult
25 evidentiary issues in advance of trial,” but courts also have discretion to decide non-evidentiary
26 issues in Limine. (Amtower, 158 Cal.App.4th at 1593.)
27 “A trial court’s ‘inherent power to curb abuses and promote fair process extends to the
28 preclusion of evidence’ at trial.” (Reales Investment, LLC v. Johnson (2020) 55 Cal.App.5th 463,
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DEFS’ NOTICE OF SUPPLEMENT TO MOTION IN LIMINE NO. 6; MEMO. OF POINTS AND AUTOHRITIES
CASE NO. 22CV001269
1 471 [no abuse of discretion in excluding evidence at trial] [citation omitted].) “Even without such
2 abuses the trial court enjoys ‘broad authority of the judge over the admission and exclusion of
3 evidence.’” (Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal.App.3d 272, 288
4 [quoting 3 Witkin, Cal. Evidence (3d ed. 1986) Introduction of Evidence at Trial, § 1707,
5 p. 1667].) To be sure, “trial courts regularly exercise their ‘basic power to insure that all parties
6 receive a fair trial’ by precluding evidence.” (Id. [citing Castaline v. City of Los Angeles (1975) 47
7 Cal.App.3d 580, 592 [exclusion of 11th-hour witness’s testimony to prevent surprise]; Clemens v.
8 American Warranty Corp. (1987) 193 Cal.App.3d 444, 451; Hyatt v. Sierra Boat Co. (1978) 79
9 Cal.App.3d 325, 337.)
10 * * * * *
11 Defendants’ Supplemental Motion in Limine No. 6 is based on this Notice of Supplemental
12 Motion in Limine No. 6, the attached Memorandum of Points and Authorities, the concurrently
13 filed Declaration of Kathleen S. Kizer in Support of Supplemental Motion in Limine No. 6,
14 Plaintiff’s First Amended Complaint, the pleadings and papers on file in this matter, and such
15 other materials and argument as may be presented in connection with the hearing on Motions in
16 Limine.
17 PLEASE TAKE FURTHER NOTICE that the Napa Court uses a Tentative Ruling
18 System. To receive the tentative ruling (to the extent the Court issues a tentative ruling as to
19 Motions in Limine), visit the court’s website at http://www.napa.courts.ca.gov or telephone
20 the court at (707) 299-1270 after 3:00 p.m. the court day before the scheduled hearing date.
21 (As Motions in Limine in advance of trial, a hearing date has not been scheduled.) Unless the
22 court directs otherwise, no oral argument will be permitted unless a party or counsel for a
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DEFS’ NOTICE OF SUPPLEMENT TO MOTION IN LIMINE NO. 6; MEMO. OF POINTS AND AUTOHRITIES
CASE NO. 22CV001269
1 party requests a hearing by calling the court and all other parties or counsel no later than
2 4:00 p.m. the court day before the hearing.
3 Dated: March 18, 2024 DLA PIPER LLP (US)
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By:
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JEFFREY E. TSAI
6 KATHLEEN S. KIZER
EMILY ROSE MARGOLIS
7 Attorneys for Defendants
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DEFS’ NOTICE OF SUPPLEMENT TO MOTION IN LIMINE NO. 6; MEMO. OF POINTS AND AUTOHRITIES
CASE NO. 22CV001269
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 SUPPLEMENT TO MOTION IN LIMINE NO. 6
3 I. INTRODUCTION
4 Plaintiff did not allow her expert Jessie Stricchiola to be available for deposition until
5 Friday, March 15, 2024. Now that Defendants have finally had the opportunity to depose
6 Stricchiola, there are numerous prejudicial errors that necessitate exclusion of her testimony.
7 First, Stricchiola attempted to provide new expert opinions outside the noticed topics that
8 Plaintiff disclosed to Defendants and cannot argue that her new topics are appropriate as rebuttal
9 expert opinion under Code of Civil Procedure Section 2034.060.
10 Second, Stricchiola herself admitted—both at deposition and in her written report—that
11 her opinions are not based on reliable data. Instead, she relied on data that she confirmed included
12 inaccurate numbers and from a source which she herself has never used before and therefore has
13 no basis to opine as to its reliability.
14 Third, Stricchiola’s opinion pertains to an issue that is not relevant to any issue to be
15 decided by the jury and therefore will not assist the trier of fact.
16 Finally, Plaintiff continues to flout the rules and disregard the statutory deadline for
17 producing documents relied on by her experts. Instead of producing Stricchiola’s documents three
18 court days before the deposition, as required by statute, Plaintiff produced a subset of Stricchiola’s
19 documents after 5:00 p.m. on the night before her deposition—apparently prompted by
20 Defendants’ counsel demand for the documents. Plaintiff then produced additional documents—
21 including Stricchiola’s written report—during the deposition, including after the lunch break.
22 Plaintiff’s conduct hindered Defendants’ ability to review, analyze, and inquire about those
23 documents at Plaintiff’s experts’ depositions.1
24 For these supplemental reasons, the Court should exclude Stricchiola’s testimony at trial
25 (as well as Taylor’s testimony, as set forth in the original Motion in Limine No. 6).
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Plaintiff also continued to produce documents from her other expert Michael Taylor two days after his
28 deposition.
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DEFS’ NOTICE OF SUPPLEMENT TO MOTION IN LIMINE NO. 6; MEMO. OF POINTS AND AUTOHRITIES
CASE NO. 22CV001269
1 II. FACTS RELEVANT TO SUPPLEMENT TO MOTION IN LIMINE NO. 6
2 A. Scope of Jessie Stricchiola’s Opinion
3 Plaintiff designated Jessie Stricchiola as an expert on “the mechanics, metrics and
4 statistics, and estimated numbers related to the press releases issued, published, and/or shared by
5 the Defendants.” (Declaration of Kathleen Kizer in support of Defendants’ Supplement to Motion
6 in Limine No. 6, Ex. A [Rough Transcript of the Deposition of Jessie Stricchiola [“Stricchiola
7 Depo. Trans.”]], p. 50:9-22.)
8 However, Stricchiola’s testimony expanded beyond that subject, as reflected in Plaintiff’s
9 counsel’s emails with Stricchiola. Those emails reveal that Plaintiff’s counsel redefined
10 Stricchiola’s scope of opinion. (Kizer Decl. Exs. I, J.) For example, Plaintiff’s counsel asked to
11 opine: “Regarding Search Engine Optimization (“SEO”) – Opinion of the method of Sam Singer’s
12 strategy of issuing the press releases to push down the ‘bad’ article on the google search results,
13 and what that might illuminate about the total likely number of communications made; Opinion as
14 to Sam Singer’s ability to pull data, metrics, and other information regarding the distribution of the
15 press releases sent to PRNewswire or BusinessWire (or similar company) from his accounts on
16 their respective websites.” (Kizer Decl. Ex. J.)
17 B. Plaintiff’s Experts’ Document Productions
18 Defendants noticed the depositions of Plaintiff’s expert witnesses Michael Taylor and
19 Jessie Stricchiola to take place on March 4 and March 5. (Kizer Decl., ¶ 3.) Plaintiff represented
20 that neither expert was available on those dates, and, after repeated requests and reminders from
21 Defendants’ counsel to provide alternative dates for her experts’ depositions, Plaintiff eventually
22 agreed for Taylor to be deposed on March 13 and for Stricchiola to be deposed on March 15 (in
23 violation of the parties’ agreement that Stricchiola would be deposed before the expert discovery
24 cutoff of March 13). (Kizer Decl., ¶ 3.) As one of many professional courtesies extended to
25 Plaintiff in this case, Defendants agreed to these deposition dates.
26 Thus, documents responsive to Taylor’s deposition subpoena were due on Friday, March 8
27 (three court days prior to his deposition) and Stricchiola’s documents were due on Tuesday, March
28 12 (three court days prior to her deposition). (Code Civ. Proc. § 2034.415.) However, Plaintiff
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DEFS’ NOTICE OF SUPPLEMENT TO MOTION IN LIMINE NO. 6; MEMO. OF POINTS AND AUTOHRITIES
CASE NO. 22CV001269
1 disregarded both deadlines.
2 Defendants received no documents responsive to Taylor’s subpoena until after his
3 deposition had already begun on March 13, and even then, only after Defendants’ counsel
4 inquired as to the status of the documents during the deposition. (Kizer Decl., ¶ 4.) Taylor testified
5 that he had produced 176 pages of documents to Plaintiff’s counsel on Friday, March 8. (Ex. 8,
6 6:9-7:8; 8:11-13). Yet Plaintiff’s production of documents from Taylor during his deposition
7 consisted of only 146 pages. (Kizer Decl., ¶ 4.) Defendants’ counsel emailed Plaintiff’s counsel on
8 March 14 to request (a) the missing 30 pages of documents Taylor provided to Plaintiff’s counsel,
9 and (b) that documents responsive to Stricchiola’s March 15 deposition, which had not yet been
10 provided, also be produced immediately. (Kizer Decl., ¶ 5, Ex. B.) That evening, Plaintiff’s
11 counsel produced some of Stricchola’s documents as well as some additional documents from
12 Taylor. (Kizer Decl., ¶ 5, Exs. C and D.)
13 Stricchiola’s deposition took place on March 15, 2024. During her deposition, Ms.
14 Stricchiola referred to a report she had written containing her conclusions and expert opinions in
15 this case. (Stricchiola Depo Trans., pp. 5:16-6:5; 41:1-7.) This report had not been produced to
16 Defendants. (Id.) Defendants’ counsel inquired at the deposition why the report had not been
17 produced, after which inquiry Plaintiff’s counsel produced a “supplemental production” of
18 Stricchiola’s documents, containing both the report and other materials. (Id.)
19 Throughout her deposition, Stricchiola’s continued to refer to documents upon which she
20 had relied but which had not been produced to Defendants. (See, e.g., Stricchiola Depo. Trans., pp.
21 42:18-24; 61:10-20.) During Stricchiola’s deposition, Plaintiff’s counsel made four “supplemental
22 productions” of documents from both Stricchiola and Taylor. (Kizer Decl. ¶ 7, Exs. E–H.)
23 Defendants’ counsel endeavored to review these productions on-the-fly, including during the
24 lunch break, so that Stricchiola’s deposition could conclude that day due to the very limited time
25 remaining before trial. (Kizer Decl., ¶ 8.) However, Defendants’ counsel was not able to
26 thoroughly review all of the “supplemental productions”—which totaled over 500 pages of
27 material—before the deposition concluded. (Kizer Decl., Ex. H; Stricchiola Trans. p. 124:3
28 [“supplemental production” transmitted at 1:16 p.m.; deposition concluded at 2:05 p.m.].)
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DEFS’ NOTICE OF SUPPLEMENT TO MOTION IN LIMINE NO. 6; MEMO. OF POINTS AND AUTOHRITIES
CASE NO. 22CV001269
1 Defendants’ counsel was also precluded from reviewing Taylor’s “supplemental
2 production” before his deposition, which had taken place two days before the supplemental
3 productions.
4 To date, Plaintiff’s counsel has made no representation that all documents responsive to
5 either expert witness’s subpoena have been produced. (Kizer Decl., ¶ 10.) Defendants do not know
6 whether they should be expecting additional “supplemental productions” of documents from either
7 expert witness.
8 III. ARGUMENT
9 The Court must exclude expert witness testimony from trial if an expert’s opinion is
10 inadmissible as a matter of law. (Hyatt v. Sierra Boat Co. (1978) 79 Cal.3d 325, 337.) In this case,
11 Plaintiff’s expert Jessie Stricchiola’s testimony must be excluded from trial for both substantive
12 and procedural reasons.
13 A. Stricchiola Has Opined on New Topics Without Notice by Plaintiff
14 The Court must exclude expert opinions that are outside the scope of disclosed topics to
15 avoid reversible error.2 (See, e.g., Zellerino v. Brown (1991) 235 Cal.App.3d 1097.) Opinions
16 developed after deposition and beyond disclosed topics are plainly improper. (See Bonds v. Roy
17 (1999) 20 Cal.4th 140, 148.) The remedy is exclusion. (Id.)
18 Here, Plaintiff designated Stricchiola as an expert on “the mechanics, metrics and statistics,
19 and estimated numbers related to the press releases issued, published, and/or shared by the
20 Defendants.” (Stricchiola Depo. Trans. at 50:9-22.) Plaintiff’s counsel changed the topics on
21 which Stricchiola would provide testimony. For example, Plaintiff’s counsel added the following
22 topics:
23 “nature of press releases, how they are arranged, how they are disseminated etc.”
24 “the method of Sam Singer’s strategy of issuing the press releases to push down the
25 ‘bad’ article on the google search results”
26 Sam Singer’s ability to pull data, metrics, and other information regarding the
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Indeed, Plaintiff’s Motion in Limine No. 2 acknowledges this point by requesting exclusion of undisclosed
28 express witness testimony.
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DEFS’ NOTICE OF SUPPLEMENT TO MOTION IN LIMINE NO. 6; MEMO. OF POINTS AND AUTOHRITIES
CASE NO. 22CV001269
1 distribution of the press releases sent to PRNewswire or BusinessWire (or similar
2 company) from his accounts on their respective websites”
3 (See Kizer Decl. Exs. I, J.)
4 Because these topics were not disclosed to Defendants, Stricchiola’s testimony on these
5 new topics must be excluded from trial. Importantly, Plaintiff cannot purport that these topics are
6 offered as rebuttal expert testimony for two reasons: (1) she did not disclose Stricchiola as a
7 rebuttal expert on these topics via a supplemental expert list as required under Code of Civil
8 Procedure § 2034.080; and (2) these topics are not part of Defendants’ experts’ disclosed topics,
9 and rebuttal expert testimony is limited to “subject[s] to be covered by an expert designated by an
10 adverse party to the exchange.” Code Civ. Proc. § 2034.080(a).
11 Moreover, to the extent that Stricchiola forms additional new opinions between now and
12 trial, those new opinions must too be deemed inadmissible, for the same reasons Defendants
13 explained in Motion in Limine No. 6 with respect to new opinions from Taylor.
14 B. Stricchiola’s Opinions Lack Foundation and are Not Based on Reliable Data
15 Under Evidence Code sections 801(b) and 802, “the trial court acts as a gatekeeper to
16 exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not
17 reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or
18 (3) speculative.” (Sargon Enter. Inc. v. Univ. of So. Calif. (2012) 55 Cal.4th 769, 771-72.)
19 Additionally, the Court “may, and upon objection shall, exclude testimony in the form of an
20 opinion that is based in whole or in significant part on matter that is not a proper basis for such an
21 opinion.” (Evid. Code, § 803 [emphasis added].) In light of the significance of a witness with the
22 imprimatur of an “expert,” the Court must exclude “expert testimony as well as opinions premised
23 upon assumption, conjecture, guess or surmise.” (Sargon Enter., supra, 55 Cal.4th at 770
24 [emphasis added].) An expert’s opinion “based on assumptions of fact that are without evidentiary
25 support or based on factors that are speculative or conjectural” has “no evidentiary value and does
26 not assist the trier of fact.” (Bushling v. Fremont Med. Ctr. (2004) 117 Cal.App.4th 493, 510.) An
27 “expert opinion is worth no more than the reasons upon which it rests.” (Jennings v. Palomar
28 Health Sys., Inc. (2003) 114 Cal.App.4th 1108, 1117 [internal quotation omitted].)
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DEFS’ NOTICE OF SUPPLEMENT TO MOTION IN LIMINE NO. 6; MEMO. OF POINTS AND AUTOHRITIES
CASE NO. 22CV001269
1 In this case, Stricchiola testified at deposition, and explained in her report produced during
2 her deposition, that the only reliable source of the data that would enable her to render her
3 disclosed opinions about the press releases would come from PRNewswire and BusinessWire.
4 (Stricchiola Depo. Trans. 48:10-16; 54:11-17; Kizer Decl. Ex. K [Report].) However, Stricchiola
5 testified and reported that she does not have access to those sources. So, she instead used an
6 alternative source of information (called “Meltwater”)—one which Plaintiff provided and guided
7 her to use—on which to base her opinions. (Stricchiola Depo. Trans. 55:5-13; 60:7-20.)
8 Stricchiola admitted she had never used this alternative source before. (Stricchiola Trans. at 45:11-
9 13; 46:2-47:4.) Therefore, she was unable to state with any degree of certainty that the data was
10 reliable. (Stricchiola Trans. 47:7-48:16.) Moreover, Stricchiola acknowledged that at least one
11 piece of data from Meltwater was demonstrably false, calling into obvious question all of the rest
12 of that data. (Stricchiola Depo. 62:9-17 [re: the false data: “…I think, honestly, it just underscores,
13 at least for me, that the best – the best data to rely on to figure out where these press releases got
14 distributed, how many pick-ups they got, what social platforms they were shared on, would be
15 within, you know, PR Newswire and Business Wire directly”] [emphasis added].)3
16 C. Stricchiola’s Opinions Regarding the Estimated Number of Outlets That
Received the Press Release Should Be Excluded as Not Relevant
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18 It is well-settled that expert opinion testimony is admissible only if it “will assist the trier
19 of fact.” (Bushling, supra, 117 Cal.App.4th at 510.) Here, Stricchiola provides her opinion
20 regarding the estimated number of “media outlets (websites)” on which “the press release was
21 published.” (Kizer Decl. Ex. K, ¶ 17.) For the reasons explained in Defendants’ Motion in Limine
22 No. 1, the number of media outlets that posted the press release on their website is not relevant. In
23 the event a jury finds that a communication violates the non-disparagement provision, the only
24 relevant issue will be the number of communications by Defendants. Because the number of
25 recipients of the press release (including the number of news outlets that posted the press release
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The Meltwater report that Stricchiola’s colleague acquired for her states that the press release was shared on
27 social media zero times, even though Plaintiff has put forth evidence—which Stricchiola confirmed to be legitimate—
that the press release was shared on Twitter. Stricchiola testified that the Twitter post should have been counted as a
social media share in the source of her data, and could not explain why it was not counted, explaining that Meltwater
28 was not completely reliable or accurate. (Stricchiola Depo Trans. 61:24-63.)
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DEFS’ NOTICE OF SUPPLEMENT TO MOTION IN LIMINE NO. 6; MEMO. OF POINTS AND AUTOHRITIES
CASE NO. 22CV001269
1 on their website) is not relevant, Stricchiola’s opinion testimony—even if accepted without
2 debate—could not assist the jury. It should therefore be precluded.
3 D. Both Stricchiola and Taylor Should Be Excluded Because of Plaintiff’s
Malfeasance in Failing to Timely Produce Their Documents
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5 Code of Civil Procedure section 2034.415 requires an expert witness whose deposition is
6 noticed pursuant to Section 2025.220 to produce any materials called for in his or her deposition
7 notice “no later than three business days before” his or her deposition. Taylor’s deposition
8 occurred on March 13, and Stricchiola’s on March 15. However, Plaintiff began producing
9 Taylor’s documents after his deposition had already begun on March 13, and continued producing
10 more of Taylor’s documents two days after his deposition, on March 15.
11 Similarly, Plaintiff made an initial production of Stricchiola’s documents—only at
12 Defendants’ counsel’s request—the night before her deposition, and then continued producing
13 more of Stricchiola’s documents during her deposition, including producing documents less than
14 an hour before it concluded. (Kizer Decl., ¶¶ 5-7, Exs. B-H.)4
15 To date, Defendants do not know whether all documents from either expert have actually
16 been produced. Defendants have been hamstrung from understanding the bases of Plaintiff’s
17 experts’ opinions, and did not have adequate time to analyze the experts’ documents to prepare for
18 their depositions.
19 The Court should therefore exclude testimony both Taylor and Stricchiola based on
20 Plaintiff’s egregious, inexcusable, and ongoing misconduct.
21 IV. CONCLUSION
22 For all the foregoing reasons, and the reasons presented in Defendants’ Motion in Limine
23 No. 6 filed on March 14 as part of Defendants’ Omnibus Motions in Limine, the Court should
24 preclude Plaintiff’s experts Jessie Stricchiola and Michael Taylor from providing any testimony at
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26 To the extent that Plaintiff’s counsel may seek—shamelessly and childishly—to blame any late production
of documents on Ms. Stricchiola: (1) it is Plaintiff’s counsel’s responsibility to ensure that Plaintiff’s expert witnesses
27 know and follow deadlines; and (2) Ms. Stricchiola testified that she had only produced her report to Plaintiff’s
counsel on the morning of her deposition, but not any of the other documents (consisting of 504 pages of total
material) that Plaintiff produced untimely. And, Plaintiff’s counsel only produced that report (plus other documents)
28 mid-deposition when Defendants’ counsel demanded they do so. (Kizer Decl., ¶ 8.)
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DEFS’ NOTICE OF SUPPLEMENT TO MOTION IN LIMINE NO. 6; MEMO. OF POINTS AND AUTOHRITIES
CASE NO. 22CV001269
1 the trial in this matter.
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3 Dated: March 18, 2024 DLA PIPER LLP (US)
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By:
5 JEFFREY E. TSAI
6 KATHLEEN S. KIZER
EMILY ROSE MARGOLIS
7 Attorneys for Defendants
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DEFS’ NOTICE OF SUPPLEMENT TO MOTION IN LIMINE NO. 6; MEMO. OF POINTS AND AUTOHRITIES
CASE NO. 22CV001269
1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF NAPA
3 I am employed in the County of San Diego, State of California. I am over the age of 18
4 and not a party to the within action; my business address is: DLA Piper LLP (US), 4365
5 Executive Drive, Suite 1100, San Diego, CA 92121.
6 On March 18, 2024, I served the foregoing document(s) described as:
7 DEFENDANTS’ NOTICE OF SUPPLEMENTAL MOTION IN LIMINE NO. 6;
MEMORANDUM OF POINTS AND AUTHORITIES
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9 on the following:
10 John S. Rueppel
Angie Lam
11 JOHNSTON, KINNEY & ZULAICA LLP
101 Montgomery Street, Suite 1600
12 San Francisco, California 94104
13 T: 415.693.0550
F: 415.693.0500
14 E: john@jkzllp.com
evan@jkzllp.com
15 Attorneys for Plaintiff Lisa Keith
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I transmitted copies of the document(s) described above via e-mail to the persons at the
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email addresses set forth above pursuant to the parties’ mutual agreement on or about March 21,
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2023, to provide service by e-mail.
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I declare under penalty of perjury under the laws of the State of California that the above is
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true and correct.
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Executed on March 18, 2024, at San Diego, California.
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Lynda M West
23 [Print Name of Person Executing Proof] [Signature]
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PROOF OF SERVICE
Preview
JEFFREY E. TSAI (SBN 226081) 1 jeff.tsai@us.dlapiper.com 2 KATHLEEN S. KIZER (SBN 246035) kathy.kizer@us.dlapiper.com 3 EMILY ROSE MARGOLIS (SBN 324089) emily.margolis@us.dlapiper.com 4 DLA PIPER LLP (US) 555 Mission Street, Suite 2400 5 San Francisco, California 94105-2933 6 Tel: 415.836.2500 | Fax: 415.836.2501 7 Attorneys for Defendants CELESTE WHITE, DR. ROBERT WHITE, and 8 THE VALLEY ROCK FOUNDATION 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 FOR THE COUNTY OF NAPA 12 13 LISA KEITH, an individual, CASE NO. 22CV001269 14 Plaintiff, DEFENDANTS’ NOTICE OF SUPPLEMENT 15 AND SUPPLEMENT TO MOTION IN LIMINE v. NO. 6; MEMORANDUM OF POINTS AND 16 CELESTE WHITE, an individual, ROBERT AUTHORITIES WHITE, an individual, the VALLEY ROCK 17 FOUNDATION, aka THE BAR 49 Date: March 28, 2024 FOUNDATION, a charitable organization, Time: 8:30 a.m. 18 and DOES 1-50, INCLUSIVE, Judge: Hon. Cynthia P. Smith Dept.: A 19 Defendants. Complaint Filed: October 25, 2022 20 FAC Filed: March 8, 2023 Trial Mgmt. Conf.: March 28, 2024 21 Trial Date: April 2, 2024 22 23 24 25 26 27 28 -1- DEFS’ NOTICE OF SUPPLEMENT TO MOTION IN LIMINE NO. 6; MEMO. OF POINTS AND AUTOHRITIES CASE NO. 22CV001269 1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE that, on the date and at the time set forth above for the Trial 3 Management Conference in this matter pursuant to Napa County Superior Court Local Rule 6.2, 4 or as soon before or thereafter at the Court’s discretion as this matter may be heard in Department 5 A of the above-entitled court located at 825 Brown Street, Napa, California 94559, Defendants 6 Valley Rock Foundation (“Foundation”), Dr. Robert White (“Dr. White”), and Celeste White 7 (collectively, “Defendants”) will and hereby do move this Court for an order granting their Motion 8 in Limine No. 6, as supplemented by this Notice of Supplement and Supplement to Motion in 9 Limine No. 6. 10 Bases for Supplement 11 Defendants filed their Omnibus Motions in Limine on March 14, 2024, but reserved their 12 right to supplement Motion in Limine No. 6 regarding Plaintiff’s expert witnesses on the grounds 13 that Plaintiff refused to make one of her expert witnesses, Jessie Stricchiola, available for 14 deposition until March 15, 2024 (after the deadline for filing Motions in Limine). Now that 15 Stricchiola’s deposition has occurred on March 15, 2024, Defendants hereby supplement their 16 Motion in Limine No. 6 to exclude Stricchiola’s testimony on the bases that Stricchiola’s proposed 17 testimony and opinions: 18 [1] are not based on reliable facts; 19 [2] are not relevant; and 20 [3] Plaintiff failed to produce Stricchiola’s documents as required by statute. 21 First, Stricchiola’s expert testimony and opinions are inadmissible because they are not 22 based on reliable facts or data. Stricchiola has provided an opinion regarding the estimated number 23 of outlets that received the press release at issue in this litigation. However, Stricchiola admitted at 24 her deposition (and in her report produced during the deposition) that she did not use reliable data 25 as the foundation of her opinion but instead used a source of data whose reliability she could not 26 confirm. Accordingly, her opinion regarding the number of outlets should be excluded. 27 Second, Stricchiola’s opinion should be excluded for the additional reason that the number 28 of outlets that received the press release is not relevant to any issue to be adjudicated at trial. As -2- DEFS’ NOTICE OF SUPPLEMENT TO MOTION IN LIMINE NO. 6; MEMO. OF POINTS AND AUTOHRITIES CASE NO. 22CV001269 1 explained in Defendants’ Motion in Limine No. 1, the liquidated damages clause in the non- 2 disparagement provision provides for the calculation damages based on the number of 3 communications by a party to the Settlement Agreement that are found to violate the non- 4 disparagement provision and not, contrary to Plaintiff’s arguments, the number of recipients of a 5 communication. Accordingly, Stricchiola’s opinion regarding the estimated number of outlets that 6 purportedly receive the press release is not relevant and not helpful to the jury. 7 Third, as with Plaintiff’s putative expert Michael Taylor, Plaintiff’s counsel yet again 8 sandbagged Defendants by not producing Stricchiola’s documents three court days before the 9 deposition, as required by statute. Instead, Plaintiff produced a subset of Stricchiola’s documents 10 after 5:00 p.m. on the night before her deposition—apparently prompted by Defendants’ counsel 11 demand for the documents. Plaintiff then made a series of additional document dumps—including 12 Stricchiola’s written report—during the deposition, including after the lunch break, so 13 Defendants’ counsel could not review the documents. Defendants are still unable to ascertain 14 whether, as of the time of the filing of this Supplement to their Motion in Limine No. 6, they have 15 received all documents responsive to their subpoenas for either Stricchiola or Taylor. 16 Legal Authority 17 Orders excluding evidence and/or otherwise precluding improper argument are entirely 18 within the Court’s authority. (See Lucas v. County of Los Angeles (1996) 47 Cal.App.4th 277, 284 19 [“A court has inherent equity, supervisory and administrative powers, as well as inherent power to 20 control litigation and conserve judicial resources.”] [citation omitted]; accord Amtower v. Photon 21 Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1595 [“Courts have inherent power, separate from 22 any statutory authority, to control the litigation before them and to adopt any suitable method of 23 practice, even if the method is not specified by statute or by the Rules of Court.”].) “In Limine 24 motions are designed to facilitate the management of a case, generally by deciding difficult 25 evidentiary issues in advance of trial,” but courts also have discretion to decide non-evidentiary 26 issues in Limine. (Amtower, 158 Cal.App.4th at 1593.) 27 “A trial court’s ‘inherent power to curb abuses and promote fair process extends to the 28 preclusion of evidence’ at trial.” (Reales Investment, LLC v. Johnson (2020) 55 Cal.App.5th 463, -3- DEFS’ NOTICE OF SUPPLEMENT TO MOTION IN LIMINE NO. 6; MEMO. OF POINTS AND AUTOHRITIES CASE NO. 22CV001269 1 471 [no abuse of discretion in excluding evidence at trial] [citation omitted].) “Even without such 2 abuses the trial court enjoys ‘broad authority of the judge over the admission and exclusion of 3 evidence.’” (Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal.App.3d 272, 288 4 [quoting 3 Witkin, Cal. Evidence (3d ed. 1986) Introduction of Evidence at Trial, § 1707, 5 p. 1667].) To be sure, “trial courts regularly exercise their ‘basic power to insure that all parties 6 receive a fair trial’ by precluding evidence.” (Id. [citing Castaline v. City of Los Angeles (1975) 47 7 Cal.App.3d 580, 592 [exclusion of 11th-hour witness’s testimony to prevent surprise]; Clemens v. 8 American Warranty Corp. (1987) 193 Cal.App.3d 444, 451; Hyatt v. Sierra Boat Co. (1978) 79 9 Cal.App.3d 325, 337.) 10 * * * * * 11 Defendants’ Supplemental Motion in Limine No. 6 is based on this Notice of Supplemental 12 Motion in Limine No. 6, the attached Memorandum of Points and Authorities, the concurrently 13 filed Declaration of Kathleen S. Kizer in Support of Supplemental Motion in Limine No. 6, 14 Plaintiff’s First Amended Complaint, the pleadings and papers on file in this matter, and such 15 other materials and argument as may be presented in connection with the hearing on Motions in 16 Limine. 17 PLEASE TAKE FURTHER NOTICE that the Napa Court uses a Tentative Ruling 18 System. To receive the tentative ruling (to the extent the Court issues a tentative ruling as to 19 Motions in Limine), visit the court’s website at http://www.napa.courts.ca.gov or telephone 20 the court at (707) 299-1270 after 3:00 p.m. the court day before the scheduled hearing date. 21 (As Motions in Limine in advance of trial, a hearing date has not been scheduled.) Unless the 22 court directs otherwise, no oral argument will be permitted unless a party or counsel for a 23 24 25 26 27 28 -4- DEFS’ NOTICE OF SUPPLEMENT TO MOTION IN LIMINE NO. 6; MEMO. OF POINTS AND AUTOHRITIES CASE NO. 22CV001269 1 party requests a hearing by calling the court and all other parties or counsel no later than 2 4:00 p.m. the court day before the hearing. 3 Dated: March 18, 2024 DLA PIPER LLP (US) 4 By: 5 JEFFREY E. TSAI 6 KATHLEEN S. KIZER EMILY ROSE MARGOLIS 7 Attorneys for Defendants 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5- DEFS’ NOTICE OF SUPPLEMENT TO MOTION IN LIMINE NO. 6; MEMO. OF POINTS AND AUTOHRITIES CASE NO. 22CV001269 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 SUPPLEMENT TO MOTION IN LIMINE NO. 6 3 I. INTRODUCTION 4 Plaintiff did not allow her expert Jessie Stricchiola to be available for deposition until 5 Friday, March 15, 2024. Now that Defendants have finally had the opportunity to depose 6 Stricchiola, there are numerous prejudicial errors that necessitate exclusion of her testimony. 7 First, Stricchiola attempted to provide new expert opinions outside the noticed topics that 8 Plaintiff disclosed to Defendants and cannot argue that her new topics are appropriate as rebuttal 9 expert opinion under Code of Civil Procedure Section 2034.060. 10 Second, Stricchiola herself admitted—both at deposition and in her written report—that 11 her opinions are not based on reliable data. Instead, she relied on data that she confirmed included 12 inaccurate numbers and from a source which she herself has never used before and therefore has 13 no basis to opine as to its reliability. 14 Third, Stricchiola’s opinion pertains to an issue that is not relevant to any issue to be 15 decided by the jury and therefore will not assist the trier of fact. 16 Finally, Plaintiff continues to flout the rules and disregard the statutory deadline for 17 producing documents relied on by her experts. Instead of producing Stricchiola’s documents three 18 court days before the deposition, as required by statute, Plaintiff produced a subset of Stricchiola’s 19 documents after 5:00 p.m. on the night before her deposition—apparently prompted by 20 Defendants’ counsel demand for the documents. Plaintiff then produced additional documents— 21 including Stricchiola’s written report—during the deposition, including after the lunch break. 22 Plaintiff’s conduct hindered Defendants’ ability to review, analyze, and inquire about those 23 documents at Plaintiff’s experts’ depositions.1 24 For these supplemental reasons, the Court should exclude Stricchiola’s testimony at trial 25 (as well as Taylor’s testimony, as set forth in the original Motion in Limine No. 6). 26 27 1 Plaintiff also continued to produce documents from her other expert Michael Taylor two days after his 28 deposition. -6- DEFS’ NOTICE OF SUPPLEMENT TO MOTION IN LIMINE NO. 6; MEMO. OF POINTS AND AUTOHRITIES CASE NO. 22CV001269 1 II. FACTS RELEVANT TO SUPPLEMENT TO MOTION IN LIMINE NO. 6 2 A. Scope of Jessie Stricchiola’s Opinion 3 Plaintiff designated Jessie Stricchiola as an expert on “the mechanics, metrics and 4 statistics, and estimated numbers related to the press releases issued, published, and/or shared by 5 the Defendants.” (Declaration of Kathleen Kizer in support of Defendants’ Supplement to Motion 6 in Limine No. 6, Ex. A [Rough Transcript of the Deposition of Jessie Stricchiola [“Stricchiola 7 Depo. Trans.”]], p. 50:9-22.) 8 However, Stricchiola’s testimony expanded beyond that subject, as reflected in Plaintiff’s 9 counsel’s emails with Stricchiola. Those emails reveal that Plaintiff’s counsel redefined 10 Stricchiola’s scope of opinion. (Kizer Decl. Exs. I, J.) For example, Plaintiff’s counsel asked to 11 opine: “Regarding Search Engine Optimization (“SEO”) – Opinion of the method of Sam Singer’s 12 strategy of issuing the press releases to push down the ‘bad’ article on the google search results, 13 and what that might illuminate about the total likely number of communications made; Opinion as 14 to Sam Singer’s ability to pull data, metrics, and other information regarding the distribution of the 15 press releases sent to PRNewswire or BusinessWire (or similar company) from his accounts on 16 their respective websites.” (Kizer Decl. Ex. J.) 17 B. Plaintiff’s Experts’ Document Productions 18 Defendants noticed the depositions of Plaintiff’s expert witnesses Michael Taylor and 19 Jessie Stricchiola to take place on March 4 and March 5. (Kizer Decl., ¶ 3.) Plaintiff represented 20 that neither expert was available on those dates, and, after repeated requests and reminders from 21 Defendants’ counsel to provide alternative dates for her experts’ depositions, Plaintiff eventually 22 agreed for Taylor to be deposed on March 13 and for Stricchiola to be deposed on March 15 (in 23 violation of the parties’ agreement that Stricchiola would be deposed before the expert discovery 24 cutoff of March 13). (Kizer Decl., ¶ 3.) As one of many professional courtesies extended to 25 Plaintiff in this case, Defendants agreed to these deposition dates. 26 Thus, documents responsive to Taylor’s deposition subpoena were due on Friday, March 8 27 (three court days prior to his deposition) and Stricchiola’s documents were due on Tuesday, March 28 12 (three court days prior to her deposition). (Code Civ. Proc. § 2034.415.) However, Plaintiff -7- DEFS’ NOTICE OF SUPPLEMENT TO MOTION IN LIMINE NO. 6; MEMO. OF POINTS AND AUTOHRITIES CASE NO. 22CV001269 1 disregarded both deadlines. 2 Defendants received no documents responsive to Taylor’s subpoena until after his 3 deposition had already begun on March 13, and even then, only after Defendants’ counsel 4 inquired as to the status of the documents during the deposition. (Kizer Decl., ¶ 4.) Taylor testified 5 that he had produced 176 pages of documents to Plaintiff’s counsel on Friday, March 8. (Ex. 8, 6 6:9-7:8; 8:11-13). Yet Plaintiff’s production of documents from Taylor during his deposition 7 consisted of only 146 pages. (Kizer Decl., ¶ 4.) Defendants’ counsel emailed Plaintiff’s counsel on 8 March 14 to request (a) the missing 30 pages of documents Taylor provided to Plaintiff’s counsel, 9 and (b) that documents responsive to Stricchiola’s March 15 deposition, which had not yet been 10 provided, also be produced immediately. (Kizer Decl., ¶ 5, Ex. B.) That evening, Plaintiff’s 11 counsel produced some of Stricchola’s documents as well as some additional documents from 12 Taylor. (Kizer Decl., ¶ 5, Exs. C and D.) 13 Stricchiola’s deposition took place on March 15, 2024. During her deposition, Ms. 14 Stricchiola referred to a report she had written containing her conclusions and expert opinions in 15 this case. (Stricchiola Depo Trans., pp. 5:16-6:5; 41:1-7.) This report had not been produced to 16 Defendants. (Id.) Defendants’ counsel inquired at the deposition why the report had not been 17 produced, after which inquiry Plaintiff’s counsel produced a “supplemental production” of 18 Stricchiola’s documents, containing both the report and other materials. (Id.) 19 Throughout her deposition, Stricchiola’s continued to refer to documents upon which she 20 had relied but which had not been produced to Defendants. (See, e.g., Stricchiola Depo. Trans., pp. 21 42:18-24; 61:10-20.) During Stricchiola’s deposition, Plaintiff’s counsel made four “supplemental 22 productions” of documents from both Stricchiola and Taylor. (Kizer Decl. ¶ 7, Exs. E–H.) 23 Defendants’ counsel endeavored to review these productions on-the-fly, including during the 24 lunch break, so that Stricchiola’s deposition could conclude that day due to the very limited time 25 remaining before trial. (Kizer Decl., ¶ 8.) However, Defendants’ counsel was not able to 26 thoroughly review all of the “supplemental productions”—which totaled over 500 pages of 27 material—before the deposition concluded. (Kizer Decl., Ex. H; Stricchiola Trans. p. 124:3 28 [“supplemental production” transmitted at 1:16 p.m.; deposition concluded at 2:05 p.m.].) -8- DEFS’ NOTICE OF SUPPLEMENT TO MOTION IN LIMINE NO. 6; MEMO. OF POINTS AND AUTOHRITIES CASE NO. 22CV001269 1 Defendants’ counsel was also precluded from reviewing Taylor’s “supplemental 2 production” before his deposition, which had taken place two days before the supplemental 3 productions. 4 To date, Plaintiff’s counsel has made no representation that all documents responsive to 5 either expert witness’s subpoena have been produced. (Kizer Decl., ¶ 10.) Defendants do not know 6 whether they should be expecting additional “supplemental productions” of documents from either 7 expert witness. 8 III. ARGUMENT 9 The Court must exclude expert witness testimony from trial if an expert’s opinion is 10 inadmissible as a matter of law. (Hyatt v. Sierra Boat Co. (1978) 79 Cal.3d 325, 337.) In this case, 11 Plaintiff’s expert Jessie Stricchiola’s testimony must be excluded from trial for both substantive 12 and procedural reasons. 13 A. Stricchiola Has Opined on New Topics Without Notice by Plaintiff 14 The Court must exclude expert opinions that are outside the scope of disclosed topics to 15 avoid reversible error.2 (See, e.g., Zellerino v. Brown (1991) 235 Cal.App.3d 1097.) Opinions 16 developed after deposition and beyond disclosed topics are plainly improper. (See Bonds v. Roy 17 (1999) 20 Cal.4th 140, 148.) The remedy is exclusion. (Id.) 18 Here, Plaintiff designated Stricchiola as an expert on “the mechanics, metrics and statistics, 19 and estimated numbers related to the press releases issued, published, and/or shared by the 20 Defendants.” (Stricchiola Depo. Trans. at 50:9-22.) Plaintiff’s counsel changed the topics on 21 which Stricchiola would provide testimony. For example, Plaintiff’s counsel added the following 22 topics: 23 “nature of press releases, how they are arranged, how they are disseminated etc.” 24 “the method of Sam Singer’s strategy of issuing the press releases to push down the 25 ‘bad’ article on the google search results” 26 Sam Singer’s ability to pull data, metrics, and other information regarding the 27 2 Indeed, Plaintiff’s Motion in Limine No. 2 acknowledges this point by requesting exclusion of undisclosed 28 express witness testimony. -9- DEFS’ NOTICE OF SUPPLEMENT TO MOTION IN LIMINE NO. 6; MEMO. OF POINTS AND AUTOHRITIES CASE NO. 22CV001269 1 distribution of the press releases sent to PRNewswire or BusinessWire (or similar 2 company) from his accounts on their respective websites” 3 (See Kizer Decl. Exs. I, J.) 4 Because these topics were not disclosed to Defendants, Stricchiola’s testimony on these 5 new topics must be excluded from trial. Importantly, Plaintiff cannot purport that these topics are 6 offered as rebuttal expert testimony for two reasons: (1) she did not disclose Stricchiola as a 7 rebuttal expert on these topics via a supplemental expert list as required under Code of Civil 8 Procedure § 2034.080; and (2) these topics are not part of Defendants’ experts’ disclosed topics, 9 and rebuttal expert testimony is limited to “subject[s] to be covered by an expert designated by an 10 adverse party to the exchange.” Code Civ. Proc. § 2034.080(a). 11 Moreover, to the extent that Stricchiola forms additional new opinions between now and 12 trial, those new opinions must too be deemed inadmissible, for the same reasons Defendants 13 explained in Motion in Limine No. 6 with respect to new opinions from Taylor. 14 B. Stricchiola’s Opinions Lack Foundation and are Not Based on Reliable Data 15 Under Evidence Code sections 801(b) and 802, “the trial court acts as a gatekeeper to 16 exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not 17 reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or 18 (3) speculative.” (Sargon Enter. Inc. v. Univ. of So. Calif. (2012) 55 Cal.4th 769, 771-72.) 19 Additionally, the Court “may, and upon objection shall, exclude testimony in the form of an 20 opinion that is based in whole or in significant part on matter that is not a proper basis for such an 21 opinion.” (Evid. Code, § 803 [emphasis added].) In light of the significance of a witness with the 22 imprimatur of an “expert,” the Court must exclude “expert testimony as well as opinions premised 23 upon assumption, conjecture, guess or surmise.” (Sargon Enter., supra, 55 Cal.4th at 770 24 [emphasis added].) An expert’s opinion “based on assumptions of fact that are without evidentiary 25 support or based on factors that are speculative or conjectural” has “no evidentiary value and does 26 not assist the trier of fact.” (Bushling v. Fremont Med. Ctr. (2004) 117 Cal.App.4th 493, 510.) An 27 “expert opinion is worth no more than the reasons upon which it rests.” (Jennings v. Palomar 28 Health Sys., Inc. (2003) 114 Cal.App.4th 1108, 1117 [internal quotation omitted].) -10- DEFS’ NOTICE OF SUPPLEMENT TO MOTION IN LIMINE NO. 6; MEMO. OF POINTS AND AUTOHRITIES CASE NO. 22CV001269 1 In this case, Stricchiola testified at deposition, and explained in her report produced during 2 her deposition, that the only reliable source of the data that would enable her to render her 3 disclosed opinions about the press releases would come from PRNewswire and BusinessWire. 4 (Stricchiola Depo. Trans. 48:10-16; 54:11-17; Kizer Decl. Ex. K [Report].) However, Stricchiola 5 testified and reported that she does not have access to those sources. So, she instead used an 6 alternative source of information (called “Meltwater”)—one which Plaintiff provided and guided 7 her to use—on which to base her opinions. (Stricchiola Depo. Trans. 55:5-13; 60:7-20.) 8 Stricchiola admitted she had never used this alternative source before. (Stricchiola Trans. at 45:11- 9 13; 46:2-47:4.) Therefore, she was unable to state with any degree of certainty that the data was 10 reliable. (Stricchiola Trans. 47:7-48:16.) Moreover, Stricchiola acknowledged that at least one 11 piece of data from Meltwater was demonstrably false, calling into obvious question all of the rest 12 of that data. (Stricchiola Depo. 62:9-17 [re: the false data: “…I think, honestly, it just underscores, 13 at least for me, that the best – the best data to rely on to figure out where these press releases got 14 distributed, how many pick-ups they got, what social platforms they were shared on, would be 15 within, you know, PR Newswire and Business Wire directly”] [emphasis added].)3 16 C. Stricchiola’s Opinions Regarding the Estimated Number of Outlets That Received the Press Release Should Be Excluded as Not Relevant 17 18 It is well-settled that expert opinion testimony is admissible only if it “will assist the trier 19 of fact.” (Bushling, supra, 117 Cal.App.4th at 510.) Here, Stricchiola provides her opinion 20 regarding the estimated number of “media outlets (websites)” on which “the press release was 21 published.” (Kizer Decl. Ex. K, ¶ 17.) For the reasons explained in Defendants’ Motion in Limine 22 No. 1, the number of media outlets that posted the press release on their website is not relevant. In 23 the event a jury finds that a communication violates the non-disparagement provision, the only 24 relevant issue will be the number of communications by Defendants. Because the number of 25 recipients of the press release (including the number of news outlets that posted the press release 26 3 The Meltwater report that Stricchiola’s colleague acquired for her states that the press release was shared on 27 social media zero times, even though Plaintiff has put forth evidence—which Stricchiola confirmed to be legitimate— that the press release was shared on Twitter. Stricchiola testified that the Twitter post should have been counted as a social media share in the source of her data, and could not explain why it was not counted, explaining that Meltwater 28 was not completely reliable or accurate. (Stricchiola Depo Trans. 61:24-63.) -11- DEFS’ NOTICE OF SUPPLEMENT TO MOTION IN LIMINE NO. 6; MEMO. OF POINTS AND AUTOHRITIES CASE NO. 22CV001269 1 on their website) is not relevant, Stricchiola’s opinion testimony—even if accepted without 2 debate—could not assist the jury. It should therefore be precluded. 3 D. Both Stricchiola and Taylor Should Be Excluded Because of Plaintiff’s Malfeasance in Failing to Timely Produce Their Documents 4 5 Code of Civil Procedure section 2034.415 requires an expert witness whose deposition is 6 noticed pursuant to Section 2025.220 to produce any materials called for in his or her deposition 7 notice “no later than three business days before” his or her deposition. Taylor’s deposition 8 occurred on March 13, and Stricchiola’s on March 15. However, Plaintiff began producing 9 Taylor’s documents after his deposition had already begun on March 13, and continued producing 10 more of Taylor’s documents two days after his deposition, on March 15. 11 Similarly, Plaintiff made an initial production of Stricchiola’s documents—only at 12 Defendants’ counsel’s request—the night before her deposition, and then continued producing 13 more of Stricchiola’s documents during her deposition, including producing documents less than 14 an hour before it concluded. (Kizer Decl., ¶¶ 5-7, Exs. B-H.)4 15 To date, Defendants do not know whether all documents from either expert have actually 16 been produced. Defendants have been hamstrung from understanding the bases of Plaintiff’s 17 experts’ opinions, and did not have adequate time to analyze the experts’ documents to prepare for 18 their depositions. 19 The Court should therefore exclude testimony both Taylor and Stricchiola based on 20 Plaintiff’s egregious, inexcusable, and ongoing misconduct. 21 IV. CONCLUSION 22 For all the foregoing reasons, and the reasons presented in Defendants’ Motion in Limine 23 No. 6 filed on March 14 as part of Defendants’ Omnibus Motions in Limine, the Court should 24 preclude Plaintiff’s experts Jessie Stricchiola and Michael Taylor from providing any testimony at 25 4 26 To the extent that Plaintiff’s counsel may seek—shamelessly and childishly—to blame any late production of documents on Ms. Stricchiola: (1) it is Plaintiff’s counsel’s responsibility to ensure that Plaintiff’s expert witnesses 27 know and follow deadlines; and (2) Ms. Stricchiola testified that she had only produced her report to Plaintiff’s counsel on the morning of her deposition, but not any of the other documents (consisting of 504 pages of total material) that Plaintiff produced untimely. And, Plaintiff’s counsel only produced that report (plus other documents) 28 mid-deposition when Defendants’ counsel demanded they do so. (Kizer Decl., ¶ 8.) -12- DEFS’ NOTICE OF SUPPLEMENT TO MOTION IN LIMINE NO. 6; MEMO. OF POINTS AND AUTOHRITIES CASE NO. 22CV001269 1 the trial in this matter. 2 3 Dated: March 18, 2024 DLA PIPER LLP (US) 4 By: 5 JEFFREY E. TSAI 6 KATHLEEN S. KIZER EMILY ROSE MARGOLIS 7 Attorneys for Defendants 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -13- DEFS’ NOTICE OF SUPPLEMENT TO MOTION IN LIMINE NO. 6; MEMO. OF POINTS AND AUTOHRITIES CASE NO. 22CV001269 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF NAPA 3 I am employed in the County of San Diego, State of California. I am over the age of 18 4 and not a party to the within action; my business address is: DLA Piper LLP (US), 4365 5 Executive Drive, Suite 1100, San Diego, CA 92121. 6 On March 18, 2024, I served the foregoing document(s) described as: 7 DEFENDANTS’ NOTICE OF SUPPLEMENTAL MOTION IN LIMINE NO. 6; MEMORANDUM OF POINTS AND AUTHORITIES 8 9 on the following: 10 John S. Rueppel Angie Lam 11 JOHNSTON, KINNEY & ZULAICA LLP 101 Montgomery Street, Suite 1600 12 San Francisco, California 94104 13 T: 415.693.0550 F: 415.693.0500 14 E: john@jkzllp.com evan@jkzllp.com 15 Attorneys for Plaintiff Lisa Keith 16 I transmitted copies of the document(s) described above via e-mail to the persons at the 17 email addresses set forth above pursuant to the parties’ mutual agreement on or about March 21, 18 2023, to provide service by e-mail. 19 I declare under penalty of perjury under the laws of the State of California that the above is 20 true and correct. 21 Executed on March 18, 2024, at San Diego, California. 22 Lynda M West 23 [Print Name of Person Executing Proof] [Signature] 24 25 26 27 28 PROOF OF SERVICE