Preview
1 JEFFREY E. TSAI (SBN 226081)
jeff.tsai@us.dlapiper.com
2 KATHLEEN S. KIZER (SBN 246035)
kathy.kizer@us.dlapiper.com
3
EMILY ROSE MARGOLIS (SBN 324089)
4 emily.margolis@us.dlapiper.com
DLA PIPER LLP (US)
5 555 Mission Street, Suite 2400
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’ RESPONSE TO
15 v. PLAINTIFF’S MOTIONS IN LIMINE
16 NOS. 1, 2, AND 3
CELESTE WHITE, an individual, ROBERT
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
19 Dept.: A
Defendants.
20 Complaint Filed: October 25, 2022
FAC Filed: March 8, 2023
21 Trial Date: April 2, 2024
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DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1, 2 AND 3
CASE NO. 22CV001269
1 Defendants Celeste White, Dr. Robert White, and the Valley Rock Foundation submit this
2 Response to Plaintiff Lisa Keith’s (1) Motion in Limine No. One to Exclude Evidence Not
3 Previously Disclosed; (2) Motion in Limine No. Two to Exclude Undisclosed Expert Witness
4 From Testifying; and (3) Motion in Limine No. Three to Exclude Improper Expert Witness
5 Testimony Re Hearsay Evidence; to Exclude Improper Expert Witness Testimony Re Undisclosed
6 Opinions (collectively, “MILs”).
7 I. INTRODUCTION
8 Plaintiff’s MILs cite fundamental rules of evidence that should apply generally in this
9 trial—rules excluding unproduced responsive documents, undisclosed expert witnesses, and
10 undisclosed expert opinions or revised expert reports offered by any party at trial. Plaintiff,
11 however, cites inapposite and inapplicable caselaw in her MILs that Defendants address herein for
12 purposes of clarification.
13 II. ARGUMENT
14 A. Plaintiff’s MIL No. 1
15 In MIL No. 1, Plaintiff notes that the Court may preclude a party from introducing
16 previously unproduced responsive documents at trial. (Plaintiff’s MIL No. 1, pp. 2-3 [citations
17 omitted].) Defendants’ MIL No. 4 makes substantially the same request, citing the general rule
18 that any evidence not properly disclosed in discovery responses is inadmissible at trial.
19 (Defendants’ Memorandum ISO Omnibus Motions in Limine Nos. 1-6 (“Defendants’ MIL
20 Memo.”), p. 24 [citing Deeter v. Angus (1986) 179 Cal.App.3d 241, 254-55].)
21 As Defendants explained, the discovery statute functions to “prevent trial by ambush” by
22 “do[ing] away with the sporting theory of litigation—namely, surprise at the trial.” (Defendants’
23 MIL Memo., at p. 25 [citations omitted].) Even where failure to disclose was inadvertent, a party
24 is generally precluded from presenting unproduced responsive evidence that has not been available
25 to their adversary while preparing for trial. (Id.)
26 Defendants agree that unproduced evidence responsive to properly served discovery
27 requests should not be admitted at trial, including and especially the substantial swaths of evidence
28 that Plaintiff has failed to produce in response to numerous of Defendants’ discovery requests.
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DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1, 2 AND 3
CASE NO. 22CV001269
1 Indeed, Defendants made this same argument in light of Plaintiff’s failure to produce their expert
2 witnesses’ documents before their depositions, as explained in Defendants’ Motion in Limine No.
3 6.
4 B. Plaintiff’s MIL No. 2
5 Similarly, in MIL No. 2, Plaintiff cites Code of Civil Procedure section 2034.300 for the
6 proposition that the Court may exclude a party’s previously undisclosed expert witness at trial.
7 (MIL No. 2, p. 2.) Defendants likewise concur that testimony from any undisclosed witness (as
8 required by law in response to discovery requests or through a witness list), including expert
9 witnesses, should be precluded. (See Defendants’ MIL Memo., p. 25.) Defendants only note the
10 well-established exception allowing them to present rebuttal witnesses pending Plaintiff’s case-in-
11 chief.
12 C. Plaintiff’s MIL No. 3
13 Finally, in MIL No. 3, Plaintiff cites Evidence Code sections 1200 et seq. regarding
14 hearsay evidence and asks that expert opinions and any revised expert reports beyond those
15 disclosed at the time of expert depositions be excluded. (Plaintiff’s MIL No. 3, p. 5.)
16 As an initial matter, Defendants concur that “[o]pinions developed after deposition and
17 beyond disclosed topics are plainly improper.” (Defendants’ MIL Memo., pp. 38-39 [citations
18 omitted]; see also Defendants’ Memorandum ISO Supplement to MIL No. 6 (“Defendants’ MIL
19 No. 6 Supp. Memo.”), p. 10 [citations omitted].) Additionally, previously undisclosed opinions,
20 reports, and expert witness documents are properly excluded from trial. (See, e.g., Defendants’
21 MIL Memo., pp. 38-40 [describing numerous instances of untimely document productions and
22 intention to present new opinions]; see also Defendants’ MIL No. 6 Supp. Memo., p. 12.) For
23 example, Defendants direct the Court to Plaintiff’s putative expert Michael Taylor’s deposition
24 testimony wherein Taylor explicitly indicated his intent to form new, additional opinions after his
25 deposition to present at trial. (See Ex. 8 to Kizer Decl. ISO Defendants’ Omnibus MILs at 30:4-9,
26 42:18-44:14, 145:1121 [Taylor stating that he would prepare for trial by researching new topics to
27 present at trial].)
28 This is wholly inappropriate, as Plaintiff acknowledges, and any such new opinion—if
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DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1, 2 AND 3
CASE NO. 22CV001269
1 Taylor is allowed to testify at all, which he should not for the many reasons stated in Defendants’
2 MIL No. 6 and Supplement—must be excluded from trial. Plaintiff’s MIL No. 3 supports
3 exclusion of her own experts Taylor and Stricchiola.
4 Second, Defendants also note that Plaintiff devotes considerable argument in her MIL No.
5 3 to caselaw related to medical records that form the basis of medical expert opinions. (See
6 Plaintiff’s MIL No. 3, pp. 2-5.) No medical evidence is at issue in this case, and no party has
7 produced a medical expert or medical records during discovery. Plaintiff’s analysis of hearsay
8 statements that may be contained in medical records is therefore irrelevant to any evidentiary issue
9 likely to arise at trial.1
10 Plaintiff’s precise arguments in MIL No. 3 are unclear—but, to the extent Plaintiff
11 contends that experts may not testify about hearsay statements, Defendants object to MIL No. 3. It
12 is well-established that expert witnesses may properly rely on and “relate to the jury” hearsay
13 information that “is not case specific but is the kind of background information experts have
14 traditionally been able to rely on” in their respective field. (People v. Veamatahau (2020) 9
15 Cal.5th 16, 27 [collecting cases].) Indeed, this rule is codified in Evidence Code section 801,
16 which “allows an expert witness to render an opinion ‘[b]ased on matter (including his special
17 knowledge, skill, experience, training, and education) perceived by or personally known to the
18 witness or made known to him at or before the hearing, whether or not admissible, that is of a type
19 that reasonably may be relied upon by an expert in forming an opinion upon the subject to which
20 his testimony relates, unless an expert is precluded by law from using such matter as a basis for his
21 opinion.” (Id. at 25 [quoting Evid. Code, § 801] [italics in original].)
22
23 1
Plaintiff’s MIL No. 3 appears to be a cut-and-paste motion from a different matter. The motion
24 contemplates an evidentiary dispute that has not occurred and is not likely to occur in this case. For example, Plaintiff
contends vaguely that “[e]vidence consisting of multiple layers of hearsay is inadmissible to prove its truth unless
25 each layer, analyzed independently, falls within an established hearsay exception. [Citations.] Per the rules of
evidence and California case law, this is improper, and Defendants should be reprimanded and warned that they
26 cannot reference hearsay statements contained within these records – nor can their experts – without foundational
requirements being satisfied.” (Plaintiff’s MIL No. 3, p. 2. [emphases added].) It is not apparent from Plaintiff’s
27 argument what alleged impropriety has occurred or strikes Plaintiff as probable here, nor why “Defendants should be
reprimanded and warned” for alleged reliance on hearsay. Regardless, as discussed herein, “not only can an expert
28 rely on hearsay in forming an opinion, he may tell the jury in general terms that he did so.” (Veamatahau, supra, 9
Cal.5th at 26 [internal quotations and citation omitted] [emphasis in original].)
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DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1, 2 AND 3
CASE NO. 22CV001269
1 The expert witness’s role, by design, requires them to “mak[e] use of their expertise when
2 they rely on their special knowledge, skill, experience, training, and education to (1) select a
3 source to consult, (2) digest the information from that source, (3) form an opinion about the
4 reliability of the source based on their experience in the field, and (4) apply the information
5 garnered from the source to the (independently established) facts of a particular case . . . to form
6 an opinion about the case.” (Veamatahau, supra, 9 Cal.5th at 29 [internal quotations omitted]
7 [citing 29B pt. 3A West’s Ann. Evid. Code (2009 ed.) foll. §§ 801-802].) Expert opinions and
8 testimony necessarily rely on hearsay, and “the expert is entitled to tell the jury the basis or matter
9 upon which his opinion rests.” (Id. at 25 [internal quotations and citations omitted].) To the extent
10 Plaintiff argues otherwise in her MIL No. 3, Defendants oppose that argument as it clearly
11 contravenes California evidence law.
12 III. CONCLUSION
13 Defendants concur that the rules summarized herein are basic rules of evidence that should
14 apply to all parties’ expert witnesses and unproduced documents. Accordingly, subject to the
15 above, Defendants do not oppose Plaintiff’s MILs Nos. 1 – 3.
16
17 Dated: March 21, 2024 DLA PIPER LLP (US)
18
19 By:
JEFFREY E. TSAI
20
KATHLEEN S. KIZER
21 EMILY ROSE MARGOLIS
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DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1, 2 AND 3
CASE NO. 22CV001269
1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO
3 I am employed in the County of San Francisco, 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), 555 Mission
5 Street, Suite 2400, San Francisco, CA 94105.
6 On March 21, 2024, I served the foregoing document described as:
7 DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1, 2
AND 3
8
on the following:
9
John S. Rueppel
10 Angie Lam
JOHNSTON, KINNEY & ZULAICA LLP
11 101 Montgomery Street, Suite 1600
12 San Francisco, California 94104
T: 415.693.0550
13 F: 415.693.0500
E: john@jkzllp.com
14 evan@jkzllp.com
Attorneys for Plaintiff Lisa Keith
15
16 I transmitted copies of the document described above via e-mail to the persons at the email
17 addresses set forth above pursuant to the parties’ mutual agreement on or about March 21, 2023,
18 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 21, 2024, at Fremont, California.
22
23 Christina Perez
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PROOF OF SERVICE
CASE NO. 22CV001269
Preview
1 JEFFREY E. TSAI (SBN 226081) jeff.tsai@us.dlapiper.com 2 KATHLEEN S. KIZER (SBN 246035) kathy.kizer@us.dlapiper.com 3 EMILY ROSE MARGOLIS (SBN 324089) 4 emily.margolis@us.dlapiper.com DLA PIPER LLP (US) 5 555 Mission Street, Suite 2400 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’ RESPONSE TO 15 v. PLAINTIFF’S MOTIONS IN LIMINE 16 NOS. 1, 2, AND 3 CELESTE WHITE, an individual, ROBERT 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 19 Dept.: A Defendants. 20 Complaint Filed: October 25, 2022 FAC Filed: March 8, 2023 21 Trial Date: April 2, 2024 22 23 24 25 26 27 28 -1- DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1, 2 AND 3 CASE NO. 22CV001269 1 Defendants Celeste White, Dr. Robert White, and the Valley Rock Foundation submit this 2 Response to Plaintiff Lisa Keith’s (1) Motion in Limine No. One to Exclude Evidence Not 3 Previously Disclosed; (2) Motion in Limine No. Two to Exclude Undisclosed Expert Witness 4 From Testifying; and (3) Motion in Limine No. Three to Exclude Improper Expert Witness 5 Testimony Re Hearsay Evidence; to Exclude Improper Expert Witness Testimony Re Undisclosed 6 Opinions (collectively, “MILs”). 7 I. INTRODUCTION 8 Plaintiff’s MILs cite fundamental rules of evidence that should apply generally in this 9 trial—rules excluding unproduced responsive documents, undisclosed expert witnesses, and 10 undisclosed expert opinions or revised expert reports offered by any party at trial. Plaintiff, 11 however, cites inapposite and inapplicable caselaw in her MILs that Defendants address herein for 12 purposes of clarification. 13 II. ARGUMENT 14 A. Plaintiff’s MIL No. 1 15 In MIL No. 1, Plaintiff notes that the Court may preclude a party from introducing 16 previously unproduced responsive documents at trial. (Plaintiff’s MIL No. 1, pp. 2-3 [citations 17 omitted].) Defendants’ MIL No. 4 makes substantially the same request, citing the general rule 18 that any evidence not properly disclosed in discovery responses is inadmissible at trial. 19 (Defendants’ Memorandum ISO Omnibus Motions in Limine Nos. 1-6 (“Defendants’ MIL 20 Memo.”), p. 24 [citing Deeter v. Angus (1986) 179 Cal.App.3d 241, 254-55].) 21 As Defendants explained, the discovery statute functions to “prevent trial by ambush” by 22 “do[ing] away with the sporting theory of litigation—namely, surprise at the trial.” (Defendants’ 23 MIL Memo., at p. 25 [citations omitted].) Even where failure to disclose was inadvertent, a party 24 is generally precluded from presenting unproduced responsive evidence that has not been available 25 to their adversary while preparing for trial. (Id.) 26 Defendants agree that unproduced evidence responsive to properly served discovery 27 requests should not be admitted at trial, including and especially the substantial swaths of evidence 28 that Plaintiff has failed to produce in response to numerous of Defendants’ discovery requests. -2- DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1, 2 AND 3 CASE NO. 22CV001269 1 Indeed, Defendants made this same argument in light of Plaintiff’s failure to produce their expert 2 witnesses’ documents before their depositions, as explained in Defendants’ Motion in Limine No. 3 6. 4 B. Plaintiff’s MIL No. 2 5 Similarly, in MIL No. 2, Plaintiff cites Code of Civil Procedure section 2034.300 for the 6 proposition that the Court may exclude a party’s previously undisclosed expert witness at trial. 7 (MIL No. 2, p. 2.) Defendants likewise concur that testimony from any undisclosed witness (as 8 required by law in response to discovery requests or through a witness list), including expert 9 witnesses, should be precluded. (See Defendants’ MIL Memo., p. 25.) Defendants only note the 10 well-established exception allowing them to present rebuttal witnesses pending Plaintiff’s case-in- 11 chief. 12 C. Plaintiff’s MIL No. 3 13 Finally, in MIL No. 3, Plaintiff cites Evidence Code sections 1200 et seq. regarding 14 hearsay evidence and asks that expert opinions and any revised expert reports beyond those 15 disclosed at the time of expert depositions be excluded. (Plaintiff’s MIL No. 3, p. 5.) 16 As an initial matter, Defendants concur that “[o]pinions developed after deposition and 17 beyond disclosed topics are plainly improper.” (Defendants’ MIL Memo., pp. 38-39 [citations 18 omitted]; see also Defendants’ Memorandum ISO Supplement to MIL No. 6 (“Defendants’ MIL 19 No. 6 Supp. Memo.”), p. 10 [citations omitted].) Additionally, previously undisclosed opinions, 20 reports, and expert witness documents are properly excluded from trial. (See, e.g., Defendants’ 21 MIL Memo., pp. 38-40 [describing numerous instances of untimely document productions and 22 intention to present new opinions]; see also Defendants’ MIL No. 6 Supp. Memo., p. 12.) For 23 example, Defendants direct the Court to Plaintiff’s putative expert Michael Taylor’s deposition 24 testimony wherein Taylor explicitly indicated his intent to form new, additional opinions after his 25 deposition to present at trial. (See Ex. 8 to Kizer Decl. ISO Defendants’ Omnibus MILs at 30:4-9, 26 42:18-44:14, 145:1121 [Taylor stating that he would prepare for trial by researching new topics to 27 present at trial].) 28 This is wholly inappropriate, as Plaintiff acknowledges, and any such new opinion—if -3- DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1, 2 AND 3 CASE NO. 22CV001269 1 Taylor is allowed to testify at all, which he should not for the many reasons stated in Defendants’ 2 MIL No. 6 and Supplement—must be excluded from trial. Plaintiff’s MIL No. 3 supports 3 exclusion of her own experts Taylor and Stricchiola. 4 Second, Defendants also note that Plaintiff devotes considerable argument in her MIL No. 5 3 to caselaw related to medical records that form the basis of medical expert opinions. (See 6 Plaintiff’s MIL No. 3, pp. 2-5.) No medical evidence is at issue in this case, and no party has 7 produced a medical expert or medical records during discovery. Plaintiff’s analysis of hearsay 8 statements that may be contained in medical records is therefore irrelevant to any evidentiary issue 9 likely to arise at trial.1 10 Plaintiff’s precise arguments in MIL No. 3 are unclear—but, to the extent Plaintiff 11 contends that experts may not testify about hearsay statements, Defendants object to MIL No. 3. It 12 is well-established that expert witnesses may properly rely on and “relate to the jury” hearsay 13 information that “is not case specific but is the kind of background information experts have 14 traditionally been able to rely on” in their respective field. (People v. Veamatahau (2020) 9 15 Cal.5th 16, 27 [collecting cases].) Indeed, this rule is codified in Evidence Code section 801, 16 which “allows an expert witness to render an opinion ‘[b]ased on matter (including his special 17 knowledge, skill, experience, training, and education) perceived by or personally known to the 18 witness or made known to him at or before the hearing, whether or not admissible, that is of a type 19 that reasonably may be relied upon by an expert in forming an opinion upon the subject to which 20 his testimony relates, unless an expert is precluded by law from using such matter as a basis for his 21 opinion.” (Id. at 25 [quoting Evid. Code, § 801] [italics in original].) 22 23 1 Plaintiff’s MIL No. 3 appears to be a cut-and-paste motion from a different matter. The motion 24 contemplates an evidentiary dispute that has not occurred and is not likely to occur in this case. For example, Plaintiff contends vaguely that “[e]vidence consisting of multiple layers of hearsay is inadmissible to prove its truth unless 25 each layer, analyzed independently, falls within an established hearsay exception. [Citations.] Per the rules of evidence and California case law, this is improper, and Defendants should be reprimanded and warned that they 26 cannot reference hearsay statements contained within these records – nor can their experts – without foundational requirements being satisfied.” (Plaintiff’s MIL No. 3, p. 2. [emphases added].) It is not apparent from Plaintiff’s 27 argument what alleged impropriety has occurred or strikes Plaintiff as probable here, nor why “Defendants should be reprimanded and warned” for alleged reliance on hearsay. Regardless, as discussed herein, “not only can an expert 28 rely on hearsay in forming an opinion, he may tell the jury in general terms that he did so.” (Veamatahau, supra, 9 Cal.5th at 26 [internal quotations and citation omitted] [emphasis in original].) -4- DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1, 2 AND 3 CASE NO. 22CV001269 1 The expert witness’s role, by design, requires them to “mak[e] use of their expertise when 2 they rely on their special knowledge, skill, experience, training, and education to (1) select a 3 source to consult, (2) digest the information from that source, (3) form an opinion about the 4 reliability of the source based on their experience in the field, and (4) apply the information 5 garnered from the source to the (independently established) facts of a particular case . . . to form 6 an opinion about the case.” (Veamatahau, supra, 9 Cal.5th at 29 [internal quotations omitted] 7 [citing 29B pt. 3A West’s Ann. Evid. Code (2009 ed.) foll. §§ 801-802].) Expert opinions and 8 testimony necessarily rely on hearsay, and “the expert is entitled to tell the jury the basis or matter 9 upon which his opinion rests.” (Id. at 25 [internal quotations and citations omitted].) To the extent 10 Plaintiff argues otherwise in her MIL No. 3, Defendants oppose that argument as it clearly 11 contravenes California evidence law. 12 III. CONCLUSION 13 Defendants concur that the rules summarized herein are basic rules of evidence that should 14 apply to all parties’ expert witnesses and unproduced documents. Accordingly, subject to the 15 above, Defendants do not oppose Plaintiff’s MILs Nos. 1 – 3. 16 17 Dated: March 21, 2024 DLA PIPER LLP (US) 18 19 By: JEFFREY E. TSAI 20 KATHLEEN S. KIZER 21 EMILY ROSE MARGOLIS 22 23 24 25 26 27 28 -5- DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1, 2 AND 3 CASE NO. 22CV001269 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO 3 I am employed in the County of San Francisco, 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), 555 Mission 5 Street, Suite 2400, San Francisco, CA 94105. 6 On March 21, 2024, I served the foregoing document described as: 7 DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1, 2 AND 3 8 on the following: 9 John S. Rueppel 10 Angie Lam JOHNSTON, KINNEY & ZULAICA LLP 11 101 Montgomery Street, Suite 1600 12 San Francisco, California 94104 T: 415.693.0550 13 F: 415.693.0500 E: john@jkzllp.com 14 evan@jkzllp.com Attorneys for Plaintiff Lisa Keith 15 16 I transmitted copies of the document described above via e-mail to the persons at the email 17 addresses set forth above pursuant to the parties’ mutual agreement on or about March 21, 2023, 18 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 21, 2024, at Fremont, California. 22 23 Christina Perez 24 25 26 27 28 PROOF OF SERVICE CASE NO. 22CV001269