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 OPPOSTION
TO DEFENDANTS’ SUPPLEMENT TO
14 v. MOTION IN LIMINE NO. 6
15 CELESTE WHITE, an individual, ROBERT
WHITE, an individual, the VALLEY ROCK Trial Management Conference: March 28, 2024
16 FOUNDATION, aka THE BAR 49 Time: 8:30 a.m.
FOUNDATION, a charitable organization, and Judge: Hon. Scott R.L. Young
17 DOES 1-50, INCLUSIVE, Dept.: B
Trial Date: April 2, 2024
18 Defendants. Time: 8:30 a.m.
Judge: Hon. Scott R.L. Young
19 Dept.: B
Complaint Filed: October 25, 2022
20 FAC Filed: March 8, 2023
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Plaintiff, Lisa Keith, (“Plaintiff”) hereby submits her opposition (“Opposition”) to Defendants’
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(“Defendants”) Supplement to Motion in Limine No. 6 to exclude testimony by Plaintiff’s expert
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witness Jessie Stricchiola (“Supplement Motion”), filed herein by Defendants and served on March 18,
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2024 and alleges as follows:
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1
PLAINTIFF,
f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ SUPPLEMENT MOTION IN LIMINE NO. 6
1 I. ARGUMENT
2 1. Defendants’ Supplement seeks to exclude Plaintiff’s expert witness Ms. Jessie
3 Stricchiola’s (“Ms. Stricchiola”) testimony on the bases that Ms. Stricchiola’s proposed testimony and
4 opinions: [1] are not based on reliable facts; [2] are not relevant; and [3] Plaintiff failed to produce Ms.
5 Stricchiola’s documents as required by statute. These arguments fail, as set forth below.
6 2. Defendants’ first argues that Ms. Stricchiola’s proposed testimony and opinions should
7 be excluded as they are not based on reliable facts. This is inaccurate.
8 3. An expert may rely upon hearsay and other inadmissible matter in forming an opinion.
9 (Evid. Code § 801(b).) The matter relied upon must “provide a reasonable basis for the particular opinion
10 offered.” (Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 564.) In determining whether the
11 material used by the expert is of a type upon which an expert may reasonably rely, the “factors of
12 necessity and relative reliability should be given strong consideration.” (1 Jefferson, Cal. Evidence
13 Benchbook, supra, § 30.49, p.689; People v. Lewis (2001) 26 Cal.4th 334, 356, fn. 4.) “As long as the
14 expert has sufficient experience in the industry and with the subject matter of the testimony, he or she
15 may give an expert opinion on that subject. (Howard Entertainment, Inc. v. Kudrow (2012) 208
16 Cal.App.4th 1102, 1119.) Exactitude on the precise factual details of their experience in relation to the
17 present case is not required. (Id.) “Where a witness has disclosed sufficient knowledge, the question of
18 the degree of the knowledge goes more to the weight of the evidence than its admissibility.” (Id, citing
19 Mann v. Cracchiolo (1985) 38 Cal.3d 18, 37.)
20 4. Contrary to Defendants’ extreme statements, at deposition, Ms. Stricchiola did not testify
21 that the date she relied upon was inaccurate or unreliable. In fact, it was exactly the type of information
22 upon which an expert such as herself should rely: information regarding the dissemination and adoption
23 of the Press Releases at issue by national and international news organizations. As she testified:
24 ꞏDo you have any information as to the reliability of the data that Meltwater have?
ꞏA.ꞏ You know, I read around their materials, gained an understanding.ꞏ I don't -- I don't -- Ididn't
25 see anything that would indicate, you know, on a public impression, public reputation level, that
their data is not trusted or inaccurate or not valuable.ꞏ I think, for my purposes, the reliability and
26 the data that I was relying on was really just the content and the articles that they showed as
urrently showing, press releases published to these sites and, you know, that are currently live,
27 and I went through the majority of them, and they all appeared to be live, and it is also something
that can be validated right now.ꞏYou could sit and go search yourself and validate that those are
28 actually published as of now.ꞏ So for me, I found that to be reliable enough.
2
PLAINTIFF,
f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ SUPPLEMENT MOTION IN LIMINE NO. 6
(Stricchiola Deposition, 51:7-24.)
1
2
5. Stricchiola also did not state that PRNewswire and BusinessWire were the only reliable
3
sources of data. Defendants purport to cite to pages 48 and 54 for her deposition testimony for this
4
statement, neither of which contain any discussion at all of PRNewswire or BusinessWire, or reliability
5
in general. This pure fabrication is part and parcel of Defendants’ modus operandi. She only stated that
6
the Meltwater Data was not “a reliable measure of the total distribution of press releases” (Stricchiola
7
52:9-11) a topic upon which Ms. Stricchiola is
8
6. Strichiola has not opined on “new topics”. As her Expert Designation stated: “Ms.
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Stricchiola is expected to give testimony at the hearing, currently set for April 2, 2024, regarding her
10
opinions and conclusions as to the mechanics, metrics and statistics, and estimated numbers related to
11
the press releases issued, published and/or shared by the Defendants.” The purported new topics all fit
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nicely within the overall disclosed subject matter. Clearly, the term “mechanics” encompasses a
13
discussion of “the number of press releases, how they are arranged, how they are disseminated” and also
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includes “the method of Sam Singer’s strategy of issuing press releases…”, as well as “Sam Singer’s
15
ability to pull data, metrics, and other information regarding the distribution of the press releases…”.
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These are not new opinions, just refinements existing comfortably within the original designation.
17
7. An expert is qualified to testify if she has sufficient skill or experience related to her
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testimony to be likely to assist the jury in the search for the truth. (ABM Industries Overtime Cases
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(2017) 19 Cal.App.5th 277, 294.) Once this threshold is met, questions regarding the degree of an
20
expert’s knowledge go to the weight–not the admissibility of the testimony. (Id.) Moreover, Courts are
21
reluctant to exclude expert testimony. (Sargon Enterprises, Inc. v. University of Southern Cal. (2012)
22
55 Cal.4th 747, 772.) “The trial court’s preliminary determination whether the expert opinion is founded
23
on sound logic is not a decision on its persuasiveness . . . Rather, the court must simply determine
24
whether the matter relied on can provide a reasonable basis for the opinion or whether that opinion is
25
based on a leap of logic or conjecture.” (Id.) Motions in limine are not designed to replace dispositive
26
motions. (Blanks v. Seyfarth Shaw LLP (2009) 171 Cal.App.4th 336, 375.) Similarly, a motion in limine
27
is not the appropriate vehicle for weighing the sufficiency of evidence. (Meyer Intellectual Properties
28
3
PLAINTIFF,
f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ SUPPLEMENT MOTION IN LIMINE NO. 6
1 Ltd. v. Bodum, Inc. (2012) 690 F.3d 1354, 1378 (Fed. Cir.))
2 8. Ms. Stricchiola is an internet search and digital marketing expert with over 26 years of
3 experience. She is a lecturer, published author on search engines and topics related to algorithm-based
4 search and content discovery platform, and a federally qualified expert witness on matters pertaining to
5 content discoverability including search-based discovery algorithms, social media, web content/website
6 development, web analytics, and web traffic validity measurement. Defendants have no plausible basis
7 to exclude Ms. Stricchiola’s opinions; that they disagree with her opinions is not a basis to exclude them.
8 “[D]isagreement with an expert’s version of the facts is not a proper basis to exclude his
9 testimony…Rather, the proper course for contesting [an expert’s] testimony would be through vigorous
10 cross-examination and the presentation of Defendants' … theory through their own expert witness.”
11 (Multimedia Patent Trust v. Apple Inc. (S.D. Cal.,Nov. 19, 2012) 2012 WL 12868251, *2.)
12 9. Defendants’ second argument that Ms. Stricchiola’s opinion as to the number of outlets
13 that received the press release is not relevant to any issue to be adjudicated at trial fails. “Where the
14 evidence relates to a critical issue, directly supports an inference relevant to that issue, and other
15 evidence does not as directly support the same inference, the testimony must be received over a section
16 352 objection absent highly unusual circumstances.” (Kelly v. New West Federal Savings (1996) 49
17 Cal.App.4th 659, 675.) As previously indicated in Plaintiff’s opposition to Defendants’ Motion in Limine
18 No. 1, the jury should hear evidence about the number of recipients of the press release in order to
19 properly gauge the extent of Defendants’ breach. Absolute data about the number of news organizations
20 to whom the press release was offered to is impossible to obtain as this piece of information is only
21 available to the entity or person that arranged for the publishing of the press release, namely, Singer
22 Associates, Inc., whom the Defendants hired to publish the two at-issue press releases. Ms. Stricchiola’s
23 opinion as to the number of outlets that picked-up the press release directly supports an inference as to
24 the issue of how many recipients received the two at-issue press releases. Thus, there is no reasonable
25 basis to exclude Ms. Stricchiola’s opinion as to the number of outlets that received the two at-issue press
26 releases as it is directly relevant to the issue at hand. As no other evidence can directly support the same
27 inference, Defendants’ Supplement Motion must be denied.
28 10. Finally, Defendants argue that Plaintiff failed to produce Ms. Stricchiola’s documents as
4
PLAINTIFF,
f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ SUPPLEMENT MOTION IN LIMINE NO. 6
1 required by statute and thus Ms. Stricchiola’s testimony should be excluded is unfounded and therefore
2 must be denied. In Boston v. Penny Lane Centers, Inc. (2009) 170 Cal.App.4th 936, 950, the court
3 determined that the failure to turn over discoverable writings on a specified date is not a violation of §
4 2034.270 since the reports and writings were not in existence on that date. Defendants’ argument that
5 Ms. Stricchiola’s documents were not produced three court days before the deposition as required by
6 statute and so her testimony must be excluded fails. While most of Ms. Stricchiola’s documents were
7 produced the day before her deposition, the report was not completed or shared with Plaintiff’s counsel
8 until the morning of the deposition, and so could not have been previously produced. When questioned
9 by Defendants’ counsel as to when Ms. Stricchiola provided her written report, Ms. Stricchiola testified
10 “This morning moments, I think, before the deposition.” (Kizer Decl., Ex. A, 44:15-14:16.) As Ms.
11 Stricchiola provided her written report at the time when it was completed, she would not have been able
12 to submit her written report at least three court days before the deposition as it was not in existence.
13 Thus, Defendants’ basis for excluding Ms. Stricciola’s testimony fails pursuant to Boston.
14 11. Defendants also do not identify any particular prejudice from the purported untimely
15 production. All four of the parties’ experts were deposed in the last 10 days, pursuant to dates agreed to
16 by both sides.
17 12. Both counsels agreed to the timing of the expert witness deposition. During Ms.
18 Stricciola’s deposition, she noticed that there was an oversight made with respect to the documents that
19 she had produced and thus proceeded to rectify the oversight during the lunch break. (Kizer Decl., Ex.
20 A, 105:14-105:16.) Thus, Defendants’ Supplement Motion must be denied.
21 13. Defendants toss in another false arguments. They argue that Ms. Stricchiola cannot offer
22 purported “new topics” because she was not disclosed “as a rebuttal expert” via a supplemental expert
23 list. Either Defendants’ counsel are ignorant of the difference between a rebuttal expert and a
24 supplemental expert, or they attempt to intentionally deceive the Court here. Code of Civil Procedure
25 section 2034.280(a) allows a party to designate a supplemental expert if their opponent has designated
26 an expert to testify on a particular subject and “the party supplementing the list has not previously
27 retained an expert to testify on that subject”. (Id.) Rebuttal experts need not be designated prior to trial.
28 (Code Civ. Proc. § 2034.310.) “A party may call as a witness at trial an expert not previously disclosed
5
PLAINTIFF,
f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ SUPPLEMENT MOTION IN LIMINE NO. 6
1 if…that expert is called as a witness to impeach the testimony of offered by any other party at the trial.
2 The impeachment may include testimony to the falsity or nonexistence of any fact used as the foundation
3 for any opinion by any other party’s expert witness, but may not include testimony that contradicts that
4 opinion.” (Id.)
5 II. CONCLUSION
6 14. Based on the foregoing, Defendants’ Supplement Motion must be denied.
7 III. PRAYER
8 WHEREFORE, Plaintiff requests the following:
9 1. That the Court deny the Supplemental Motion in its entirety and deny all relief requested;
10 and
11 2. For such other and further relief as the Court may deem proper.
12
13 Respectfully submitted,
14 JOHNSTON, KINNEY & ZULAICA LLP
15
16 Dated: March 21, 2024 By:
John S. Rueppel, Esq.
17 Ann K. Kavanagh, Esq.
Angie Lam, Esq.
18
Attorneys for Plaintiff
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6
PLAINTIFF,
f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ SUPPLEMENT MOTION IN LIMINE NO. 6
1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, CITY OF ANTIOCH AND COUNTY OF CONTRA COSTA
3
I am employed in the City and County of San Francisco, State of California. I am over the age
4 of 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
5 is carolina@jkzllp.com.
6 On March 21, 2024, I served the foregoing document(s):
7
PLAINTIFF, LISA KEITH’S OPPOSTION TO DEFENDANTS’ SUPPLEMENT TO
8 MOTION IN LIMINE NO. 6
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 21, 2024, at Antioch, California.
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Carolina Ramos
4889-7711-1727, v. 5
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PLAINTIFF,
f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ SUPPLEMENT MOTION IN LIMINE NO. 6
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 OPPOSTION TO DEFENDANTS’ SUPPLEMENT TO 14 v. MOTION IN LIMINE NO. 6 15 CELESTE WHITE, an individual, ROBERT WHITE, an individual, the VALLEY ROCK Trial Management Conference: March 28, 2024 16 FOUNDATION, aka THE BAR 49 Time: 8:30 a.m. FOUNDATION, a charitable organization, and Judge: Hon. Scott R.L. Young 17 DOES 1-50, INCLUSIVE, Dept.: B Trial Date: April 2, 2024 18 Defendants. Time: 8:30 a.m. Judge: Hon. Scott R.L. Young 19 Dept.: B Complaint Filed: October 25, 2022 20 FAC Filed: March 8, 2023 21 22 23 24 Plaintiff, Lisa Keith, (“Plaintiff”) hereby submits her opposition (“Opposition”) to Defendants’ 25 (“Defendants”) Supplement to Motion in Limine No. 6 to exclude testimony by Plaintiff’s expert 26 witness Jessie Stricchiola (“Supplement Motion”), filed herein by Defendants and served on March 18, 27 2024 and alleges as follows: 28 1 PLAINTIFF, f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ SUPPLEMENT MOTION IN LIMINE NO. 6 1 I. ARGUMENT 2 1. Defendants’ Supplement seeks to exclude Plaintiff’s expert witness Ms. Jessie 3 Stricchiola’s (“Ms. Stricchiola”) testimony on the bases that Ms. Stricchiola’s proposed testimony and 4 opinions: [1] are not based on reliable facts; [2] are not relevant; and [3] Plaintiff failed to produce Ms. 5 Stricchiola’s documents as required by statute. These arguments fail, as set forth below. 6 2. Defendants’ first argues that Ms. Stricchiola’s proposed testimony and opinions should 7 be excluded as they are not based on reliable facts. This is inaccurate. 8 3. An expert may rely upon hearsay and other inadmissible matter in forming an opinion. 9 (Evid. Code § 801(b).) The matter relied upon must “provide a reasonable basis for the particular opinion 10 offered.” (Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 564.) In determining whether the 11 material used by the expert is of a type upon which an expert may reasonably rely, the “factors of 12 necessity and relative reliability should be given strong consideration.” (1 Jefferson, Cal. Evidence 13 Benchbook, supra, § 30.49, p.689; People v. Lewis (2001) 26 Cal.4th 334, 356, fn. 4.) “As long as the 14 expert has sufficient experience in the industry and with the subject matter of the testimony, he or she 15 may give an expert opinion on that subject. (Howard Entertainment, Inc. v. Kudrow (2012) 208 16 Cal.App.4th 1102, 1119.) Exactitude on the precise factual details of their experience in relation to the 17 present case is not required. (Id.) “Where a witness has disclosed sufficient knowledge, the question of 18 the degree of the knowledge goes more to the weight of the evidence than its admissibility.” (Id, citing 19 Mann v. Cracchiolo (1985) 38 Cal.3d 18, 37.) 20 4. Contrary to Defendants’ extreme statements, at deposition, Ms. Stricchiola did not testify 21 that the date she relied upon was inaccurate or unreliable. In fact, it was exactly the type of information 22 upon which an expert such as herself should rely: information regarding the dissemination and adoption 23 of the Press Releases at issue by national and international news organizations. As she testified: 24 ꞏDo you have any information as to the reliability of the data that Meltwater have? ꞏA.ꞏ You know, I read around their materials, gained an understanding.ꞏ I don't -- I don't -- Ididn't 25 see anything that would indicate, you know, on a public impression, public reputation level, that their data is not trusted or inaccurate or not valuable.ꞏ I think, for my purposes, the reliability and 26 the data that I was relying on was really just the content and the articles that they showed as urrently showing, press releases published to these sites and, you know, that are currently live, 27 and I went through the majority of them, and they all appeared to be live, and it is also something that can be validated right now.ꞏYou could sit and go search yourself and validate that those are 28 actually published as of now.ꞏ So for me, I found that to be reliable enough. 2 PLAINTIFF, f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ SUPPLEMENT MOTION IN LIMINE NO. 6 (Stricchiola Deposition, 51:7-24.) 1 2 5. Stricchiola also did not state that PRNewswire and BusinessWire were the only reliable 3 sources of data. Defendants purport to cite to pages 48 and 54 for her deposition testimony for this 4 statement, neither of which contain any discussion at all of PRNewswire or BusinessWire, or reliability 5 in general. This pure fabrication is part and parcel of Defendants’ modus operandi. She only stated that 6 the Meltwater Data was not “a reliable measure of the total distribution of press releases” (Stricchiola 7 52:9-11) a topic upon which Ms. Stricchiola is 8 6. Strichiola has not opined on “new topics”. As her Expert Designation stated: “Ms. 9 Stricchiola is expected to give testimony at the hearing, currently set for April 2, 2024, regarding her 10 opinions and conclusions as to the mechanics, metrics and statistics, and estimated numbers related to 11 the press releases issued, published and/or shared by the Defendants.” The purported new topics all fit 12 nicely within the overall disclosed subject matter. Clearly, the term “mechanics” encompasses a 13 discussion of “the number of press releases, how they are arranged, how they are disseminated” and also 14 includes “the method of Sam Singer’s strategy of issuing press releases…”, as well as “Sam Singer’s 15 ability to pull data, metrics, and other information regarding the distribution of the press releases…”. 16 These are not new opinions, just refinements existing comfortably within the original designation. 17 7. An expert is qualified to testify if she has sufficient skill or experience related to her 18 testimony to be likely to assist the jury in the search for the truth. (ABM Industries Overtime Cases 19 (2017) 19 Cal.App.5th 277, 294.) Once this threshold is met, questions regarding the degree of an 20 expert’s knowledge go to the weight–not the admissibility of the testimony. (Id.) Moreover, Courts are 21 reluctant to exclude expert testimony. (Sargon Enterprises, Inc. v. University of Southern Cal. (2012) 22 55 Cal.4th 747, 772.) “The trial court’s preliminary determination whether the expert opinion is founded 23 on sound logic is not a decision on its persuasiveness . . . Rather, the court must simply determine 24 whether the matter relied on can provide a reasonable basis for the opinion or whether that opinion is 25 based on a leap of logic or conjecture.” (Id.) Motions in limine are not designed to replace dispositive 26 motions. (Blanks v. Seyfarth Shaw LLP (2009) 171 Cal.App.4th 336, 375.) Similarly, a motion in limine 27 is not the appropriate vehicle for weighing the sufficiency of evidence. (Meyer Intellectual Properties 28 3 PLAINTIFF, f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ SUPPLEMENT MOTION IN LIMINE NO. 6 1 Ltd. v. Bodum, Inc. (2012) 690 F.3d 1354, 1378 (Fed. Cir.)) 2 8. Ms. Stricchiola is an internet search and digital marketing expert with over 26 years of 3 experience. She is a lecturer, published author on search engines and topics related to algorithm-based 4 search and content discovery platform, and a federally qualified expert witness on matters pertaining to 5 content discoverability including search-based discovery algorithms, social media, web content/website 6 development, web analytics, and web traffic validity measurement. Defendants have no plausible basis 7 to exclude Ms. Stricchiola’s opinions; that they disagree with her opinions is not a basis to exclude them. 8 “[D]isagreement with an expert’s version of the facts is not a proper basis to exclude his 9 testimony…Rather, the proper course for contesting [an expert’s] testimony would be through vigorous 10 cross-examination and the presentation of Defendants' … theory through their own expert witness.” 11 (Multimedia Patent Trust v. Apple Inc. (S.D. Cal.,Nov. 19, 2012) 2012 WL 12868251, *2.) 12 9. Defendants’ second argument that Ms. Stricchiola’s opinion as to the number of outlets 13 that received the press release is not relevant to any issue to be adjudicated at trial fails. “Where the 14 evidence relates to a critical issue, directly supports an inference relevant to that issue, and other 15 evidence does not as directly support the same inference, the testimony must be received over a section 16 352 objection absent highly unusual circumstances.” (Kelly v. New West Federal Savings (1996) 49 17 Cal.App.4th 659, 675.) As previously indicated in Plaintiff’s opposition to Defendants’ Motion in Limine 18 No. 1, the jury should hear evidence about the number of recipients of the press release in order to 19 properly gauge the extent of Defendants’ breach. Absolute data about the number of news organizations 20 to whom the press release was offered to is impossible to obtain as this piece of information is only 21 available to the entity or person that arranged for the publishing of the press release, namely, Singer 22 Associates, Inc., whom the Defendants hired to publish the two at-issue press releases. Ms. Stricchiola’s 23 opinion as to the number of outlets that picked-up the press release directly supports an inference as to 24 the issue of how many recipients received the two at-issue press releases. Thus, there is no reasonable 25 basis to exclude Ms. Stricchiola’s opinion as to the number of outlets that received the two at-issue press 26 releases as it is directly relevant to the issue at hand. As no other evidence can directly support the same 27 inference, Defendants’ Supplement Motion must be denied. 28 10. Finally, Defendants argue that Plaintiff failed to produce Ms. Stricchiola’s documents as 4 PLAINTIFF, f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ SUPPLEMENT MOTION IN LIMINE NO. 6 1 required by statute and thus Ms. Stricchiola’s testimony should be excluded is unfounded and therefore 2 must be denied. In Boston v. Penny Lane Centers, Inc. (2009) 170 Cal.App.4th 936, 950, the court 3 determined that the failure to turn over discoverable writings on a specified date is not a violation of § 4 2034.270 since the reports and writings were not in existence on that date. Defendants’ argument that 5 Ms. Stricchiola’s documents were not produced three court days before the deposition as required by 6 statute and so her testimony must be excluded fails. While most of Ms. Stricchiola’s documents were 7 produced the day before her deposition, the report was not completed or shared with Plaintiff’s counsel 8 until the morning of the deposition, and so could not have been previously produced. When questioned 9 by Defendants’ counsel as to when Ms. Stricchiola provided her written report, Ms. Stricchiola testified 10 “This morning moments, I think, before the deposition.” (Kizer Decl., Ex. A, 44:15-14:16.) As Ms. 11 Stricchiola provided her written report at the time when it was completed, she would not have been able 12 to submit her written report at least three court days before the deposition as it was not in existence. 13 Thus, Defendants’ basis for excluding Ms. Stricciola’s testimony fails pursuant to Boston. 14 11. Defendants also do not identify any particular prejudice from the purported untimely 15 production. All four of the parties’ experts were deposed in the last 10 days, pursuant to dates agreed to 16 by both sides. 17 12. Both counsels agreed to the timing of the expert witness deposition. During Ms. 18 Stricciola’s deposition, she noticed that there was an oversight made with respect to the documents that 19 she had produced and thus proceeded to rectify the oversight during the lunch break. (Kizer Decl., Ex. 20 A, 105:14-105:16.) Thus, Defendants’ Supplement Motion must be denied. 21 13. Defendants toss in another false arguments. They argue that Ms. Stricchiola cannot offer 22 purported “new topics” because she was not disclosed “as a rebuttal expert” via a supplemental expert 23 list. Either Defendants’ counsel are ignorant of the difference between a rebuttal expert and a 24 supplemental expert, or they attempt to intentionally deceive the Court here. Code of Civil Procedure 25 section 2034.280(a) allows a party to designate a supplemental expert if their opponent has designated 26 an expert to testify on a particular subject and “the party supplementing the list has not previously 27 retained an expert to testify on that subject”. (Id.) Rebuttal experts need not be designated prior to trial. 28 (Code Civ. Proc. § 2034.310.) “A party may call as a witness at trial an expert not previously disclosed 5 PLAINTIFF, f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ SUPPLEMENT MOTION IN LIMINE NO. 6 1 if…that expert is called as a witness to impeach the testimony of offered by any other party at the trial. 2 The impeachment may include testimony to the falsity or nonexistence of any fact used as the foundation 3 for any opinion by any other party’s expert witness, but may not include testimony that contradicts that 4 opinion.” (Id.) 5 II. CONCLUSION 6 14. Based on the foregoing, Defendants’ Supplement Motion must be denied. 7 III. PRAYER 8 WHEREFORE, Plaintiff requests the following: 9 1. That the Court deny the Supplemental Motion in its entirety and deny all relief requested; 10 and 11 2. For such other and further relief as the Court may deem proper. 12 13 Respectfully submitted, 14 JOHNSTON, KINNEY & ZULAICA LLP 15 16 Dated: March 21, 2024 By: John S. Rueppel, Esq. 17 Ann K. Kavanagh, Esq. Angie Lam, Esq. 18 Attorneys for Plaintiff 19 20 21 22 23 24 25 26 27 28 6 PLAINTIFF, f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ SUPPLEMENT MOTION IN LIMINE NO. 6 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA, CITY OF ANTIOCH AND COUNTY OF CONTRA COSTA 3 I am employed in the City and County of San Francisco, State of California. I am over the age 4 of 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 5 is carolina@jkzllp.com. 6 On March 21, 2024, I served the foregoing document(s): 7 PLAINTIFF, LISA KEITH’S OPPOSTION TO DEFENDANTS’ SUPPLEMENT TO 8 MOTION IN LIMINE NO. 6 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 21, 2024, at Antioch, California. 21 22 Carolina Ramos 4889-7711-1727, v. 5 23 24 25 26 27 28 7 PLAINTIFF, f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ SUPPLEMENT MOTION IN LIMINE NO. 6