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MARCIE ISOM FITZSIMMONS (SBN: 226906)
HIEU T. WILLIAMS (SBN: 280585) ‘Ff‘I-L'E’t’)“
GORDON REES SCULLY MANSUKHANI, LLP
275 Battery Street, Suite 2000 '
San Francisco, CA 94111
PZUIMAN-SIA a Si:
Telephone: (415) 986-5900
Facsimile: (415)986-8054 CLERKOor THER count
MIsom@grsm.com R950”
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HWilliams@grsm.com
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Attorneys for Defendant
PALO ALTO FOUNDATION MEDICAL GROUP, INC.
LINDBERGH PORTER (SBN: 100091)
LITTLER MENDELSON, P. C.
~C33}
333 Bush Street, 34'11 Floor
San Francisco, CA 94104
Telephone: (415) 433-1940
Facsimile: (415) 399-8490
LPorter@littler.com
MAIKO NAKARAI-KANIVAS (SBN: 271710)
LITTLER MENDERLSON, RC.
1255 Treat Blvd., Suite 600
Walnut Creek, CA 94597
Telephone: (925) 932-2468
Facsimile: (925) 946-9809
MNakaraikanivas@littler.com
Attorneys for Defendants
SUTTER HEALTH AND PALO ALTO MEDICAL FOUNDATION
NNNNNNNNwh—‘b—‘r—lh‘b—lb—lb—‘D—ID—t
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
\lQUI-PUJN—‘OKOOOQChUI-FWNHO
DIANA P. BLUM, M.D., CASE NO. 115CV277582
Plaintiff, DEFENDANTS’ JOINT MOTION IN
LIJWINE T0 EXCLUDE EVIDENCE
vs. REGARDING THE SUTTER IVIEDICAL
NETWORK
SUTTER HEALTH, a California
corporation; PALO ALTO FOUNDATION No. 11
vvvvvvvvvvvvvv
of 16
MEDICAL GROUP, INC., a California
corporation; PALO ALTO MEDICAL Trial Date: January 8, 2018
FOUNDATION, a California corporation; Time: 8:45 am.
and DOES I through 20, Dept: 16
Defendants. Complaint Filed: March 4, 2015
FAC Filed: August 7, 2015
28
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333mm
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SanRanch». CA
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415.433.1540
DEFENDANTS’ JOINT MOTION IN LIMNE NO. 11 TO EXCLUDE EVIDENCE RE SMN
I. INTRODUCTION
In her First Amended Complaint (“FAC”), Plaintiff DIANA BLUM, M.D. (“Plaintiff”) seeks
MN
to hold Defendants SUTTER HEALTH, PALO ALTO MEDICAL FOUNDATION (“PAMF”) and
PALO ALTO FOUNDATION MEDICAL GROUP (“the Physician Group”) (collectively,
“Defendants”) jointly liable by alleging they were part of ajoint venture. (See First Amended
Complaint [“FAC”] 13-16, Ex.
111} 1 to Declaration of Marcie I. Fitzsimmons in Support of
Defendants’ Motion in Limine [“Fitzsimmons Decl.”]). Based on Plaintiff’s opposition to Sutter
00%k
Health and PAMF’s motion for summary judgment, Defendants anticipate that Plaintiff will argue
\O that the joint venture was the Sutter Medical Network (“SMN”), a third party organization consisting
10 of 19 participating members, to which Sutter Health, PAMF and the Physician Group belong.
11 However, the SMN, which is not a business enterprise and which does not generate or receive any
12 revenue, sheds no light on whether the three Defendants in this lawsuit were part of ajoint venture.
13 Evidence relating to the SMN is therefore irrelevant. Moreover, given what is already a complex
14 organizational structure between the three defendants, introduction of irrelevant evidence pertaining
15 to the SMN will mislead the jury and confuse the issues, and unduly prejudice Defendants. It will
16 also require the admission of numerous documents and testimony from several witnesses, and result
17 in an undue consumption of the Court’s time. Defendants therefore respectfully request that the
18 Court exclude any evidence relating to the SMN at trial.
19 II. FACTUAL BACKGROUND
20 A. The Sutter Medical Network
21 The Sutter Medical Network is an agreement by 19 parties, including medical
22 foundations, medical groups, and independent practice associations of physicians (“IPAs”), to try to
23 improve healthcare by collaborating and identifying best practices, which each party then works to
24 implement in their respective organizations. (SMN Agmt, Recitals E-F, §§ 1.01-1.02, 2.01-2.02;
25 attached to Deposition Transcript of Brian Roach [“Roach Depo.”] 9:16-22, 59221-602, Ex. E to
26 Declaration of Maiko Nakarai-Kanivas in Support of Defendants’ Motions in Limine [“Nakarai
27 Decl.”). It isnot a separate legal entity. (Roach Depo. 1712-10, 59:18-20, EX. E to Nakarai Decl.).
28 Defendants are three of the 19 participating organizations in the SMN. (SMN Agmt, Exh. A to Roch
u‘nLER IENDELSON. RC,
33 Bush Steel 2.
34th Flow
SanFma‘sm CA
5411»
“5.331540
DEFENDANTS’ JOINT MOTION IN LIMINE NO. 11 T0 EXCLUDE EVIDENCE RE SMN
Depo, Ex. E to Nakarai Decl.).
As set forth in the SMN Participation Agreement, the governing document for the SMN:
“[T]he Parties intend to develop an interdependent network of providers
committed to transforming the delivery of healthcare and related services .
. .by, among other things: implementing proactive changes to work flow
processes . ..; creating open referral processes .. .; committing to the use
\OOOQONUI-hWNb—I
of standardized clinical protocols . . . ;standardizing electronic medical
record best practice alerts . . . ;and working to re-align incentives .. . .”
(SMN Agmt, Recitals E, attached to Roach Depo., Ex. E to Nakarai Decl.). The work of the
SMN is done through committees of representatives from the various parties. (Roach Depo. 17:17-
18:16 Ex. E to Nakarai Decl.). In 2012, for example, SMN committees focused on identifying best
clinical practices in quality/P4P, patient satisfaction, patient wait times, network access, and
variation reduction. (Id. at 17:17-22:24). The SMN does not own or operate any healthcare clinics,
or employ any physicians. (See Declaration of Brian Roach [“Roach Decl.” 1i 2, Ex. R to Nakarai
Decl.) Notably, the SMN Participation Agreement does not contain any financial or monetary terms,
and does not contemplate any revenue being generated by or for the SMN. (SMN Agmt, Ex. E to
Nakarai Decl.; Roach Decl. 113, Ex. R to Nakarai Decl).
B. Sutter Health, PAMF And The Physician Group
PAMF is a nonprofit corporation that operates multispecialty clinics and other healthcare
NNNNNNNNr—It—Ir—It—Ip—p—np—Ap—np—npa
facilities in the Bay Area. (PAMF Articles, Art. II, IV(A), V; PAMF Bylaws, Art. I). It is an
affiliate of Sutter Health, and receives administrative and other support services from Sutter Health.
\lmLh-PUJNb—‘ONOOOQONLII-PNNF—O
(See Declaration of Raul Gorospe iso MSJ [Gorospe Decl.”] at 11 3, Ex.L to Nakarai Decl.).
Because the corporate practice of medicine is prohibited in California, PAMF cannot employ its own
physicians to provide medical services to its patients. See Business & Prof. Code §§ 2052, 2400.
Instead, it provides these services by contracting with medical groups such as the Physician Group.
(Gorospe Decl. iso MSJ at 1] 6, Ex. L to Nakarai Decl.). PAMF negotiates and enters into
Professional Services Agreements with the contracted medical groups on an annual basis, and the
compensation PAMF pays for their services is set forth in the respective agreements. (Gorospe
Decl. iso MSJ at TH} 2, 5—8, 10, Ex. L to Nakarai Decl.). This independent contractor relationship
28 between PAMF and its contracted medical groups is expressly recognized by Health and Safety
LI'I'ILER MENDELSON. EC.
1:! Em Sweet 3.
cum Floor
San Frindsm. CA 9‘104
llSflMS‘O
DEFENDANTS’ JOINT MOTION IN LIMINE NO. 11 TO EXCLUDE EVIDENCE RE SlVfN
Code section 1206(1), and exempted from the licensing requirements of California law. Plaintiff is a
former employee of the Physician Group.
III. LEGAL ARGUMENT
A. Evidence Relating To The Sutter Medical Network Is Irrelevant
\lONUI-PWN
A joint venture is “an undertaking by two or more persons jointly to carry out a single
business enterprise for profit.” Nelson v. Abraham (1947) 29 Cal. 2d 745, 749. To establish a joint
venture, Plaintiff must demonstrate that the entities: (1) had joint control over the venture; (2) shared
DO
the profits and losses of the undertaking; and (3) had an ownership interest in the enterprise. Orosco
v. Sun-Diamond Corp. (1997) 51 Cal. App. 4th 1659, 1666. Whether ajoint venture exists depends
10 on the intention of the parties. April Enterprises, Inc. v.KTTV (1983) 147 Cal. App. 3d 805, 819-20.
11 Here, Defendants anticipate that Plaintiff will attempt to introduce evidence regarding the
12 SMN to establish that Sutter Health, PAMF and the Physician Group were in a joint venture.
13 However, as demonstrated above, the SMN is simply a collaborative group where the participating
14 parties have agreed to dedicate time and effort, and share data and ideas, in order to identify clinical
15 best practices in the healthcare industry. (SMN Agmt, Recitals E-F, §§ 1.01-1.02, 2.01-2.02; Roach
16 Depo. 9:16-22, 59:21-60:2, Ex. E to Nakarai Decl.). It does not operate healthcare clinics or provide
17 healthcare services, and it does not generate or receive any revenue. (SMN Agmt, Recitals E-F, §§
18 1.01, 2.01, 3.01 Ex. E to Nakarai Decl; Roach Decl. 11112-4,Ex. R to Nakarai Decl.). This set—up is
19 reflected in the SMN Participation Agreement, which contains no financial or monetary terms of any
2o sort. (SMN Agmt, attached to Roach Depo., Ex. E to Nakarai Decl.; Roach Decl. 113,Ex. R to
21 Nakarai Decl.). The SMN is not a separate legal entity, nor is it even a defendant in this case.
22 (Roach Depo. 17:2-10, 59:18-20. Ex. E to Nakarai Decl.). There is no evidence to the contrary, nor
23 will there be at trial.
24 Because the SMN is not a business enterprise, it has no owners, and there are no profits or
25 losses to be shared. (Roach Decl. 114,Ex. R to Nakarai Decl.). The SMN therefore does not meet the
26 foundational requirements or necessary elements of a joint venture, and cannot be one as a matter of
27 law. See Nelson, 29 Cal. 2d at 749 (joint ventme is a joint undertaking to “carry out a single
28 business enterprise for profit”); Simmons v. Ware (2013) 213 Cal. App. 4th 1035, 1054 (“Agreement
LITTLER MENDELSON, P.C.
333 Bush Street 4.
Fm
34m
San Frandsm. CA 5410‘
“51311940
DEFENDANT S’ JOINT MOTION EN LIMINE NO. 11TO EXCLUDE EVIDENCE RE SMN
to share in the profits and losses of the enterprise is . ..essential to ajoint venture . ...”); 0rosco, 51
Cal. App. 4th at 1666 (members of a joint venture “must each have an ownership interest in the
enterprise”). Evidence relating to the SMN is therefore irrelevant, and should be excluded at trial.
Evid. Code § 350 (“no evidence is admissible except relevant evidence”); Id. § 210 (“‘Relevant
\IONUIAUJN
evidence’ means evidence having any tendency in reason to prove or disprove any disputed fact
. . .
that is of consequence to the determination of the action”).
B. Evidence Relating To The Sutter Medical Network Should Be Excluded Under
Evidence Code Section 352
00
Even if the Court were to find that evidence relating to the SMN is somehow relevant,
1o it should still be excluded because its probative value is substantially outweighed by the risk that its
11 admission will necessitate an undue consumption of time, create a danger of undue prejudice,
12 confuse the issues, and mislead the jury. Evid. Code § 352. Introduction of evidence regarding what
13 the SMN is, how its committees work, what the Participation Agreement says, how it differs from
14 the three defendants, and so on, would be a waste of time because the SMN cannot, as a matter of
15 law, be ajoint venture. Moreover, given that Sutter Health, PAMF and the Physician Group are
16 participating members in the SMN (along with 16 other organizations), the jury is likely to be
17 confused and misled as to the significance of the SMN, and how it fits into the joint venture analysis.
1s Indeed, thejury may be distracted by evidence regarding the SMN, instead of looking at the actual
19 relationships between the three defendants. Introduction of evidence relating to the SMN is also
2o likely to unduly prejudice Defendants, as thejury may conclude based on the name, “Sutter Medical
21 Network,” that some type of joint enterprise exists. The jury may also use irrelevant evidence
22 regarding the SMN in making findings against Defendants, specifically with respect to thejoint
23 venture issue. Plaintiff and her counsel should therefore be ordered not to introduce any evidence
24 regarding, or make any reference to, the Sutter Medical Network.
25 M
26 M
27 Ill
28
UTTLER MENDELSDN. RC.
333 Bush Sue! 5.
34m Flow
Sin Frandsw. CA 9‘10!
MSAJJJW
DEFENDANTS’ JOINT MOTION EN LIMINE NO. 11 TO EXCLUDE EVlDENCE RE SMN
IV. CONCLUSION
For the foregoing reasons, Defendants respectfully request that the Court grant their motion
in limine to exclude any evidence relating to the Sutter Medical Network.
p
Dated: January 5, 2018 GORDON REES SCULLY MANSUKHANI, LLP
By:
MARCIE ISOM FITZSIMMONS
\OOOQQUI
HIEU T. WILLIAMS
Attorneys for Defendant
PALO ALTO FOUNDATION MEDICAL
GROUP, INC.
10
Dated: January 5, 2018 LITTLER MENDELSON, P.C.
11
12 By: A6. 9"
EINDBERGH PORTER
1'
13 MAIKO NAKARAI-KANIVAS
Attorneys for Defendants
14 PALO ALTO MEDICAL FOUNDATION and
SUTTER HEALTH
15
16
17
18
19
20
21
22
23
24
25
26
27
28
LITTLER MENDELSON, EC,
Sm
333 Bum 6.
34m Hoar
San Franfl'sm, CA 94104
-ustmsw DEFENDANTS’ JOINT MOTION IN LIMINE NO. 11TO EXCLUDE EVIDENCE RE SMN
Preview
;/‘ x x, x a, MARCIE ISOM FITZSIMMONS (SBN: 226906) HIEU T. WILLIAMS (SBN: 280585) ‘Ff‘I-L'E’t’)“ GORDON REES SCULLY MANSUKHANI, LLP 275 Battery Street, Suite 2000 ' San Francisco, CA 94111 PZUIMAN-SIA a Si: Telephone: (415) 986-5900 Facsimile: (415)986-8054 CLERKOor THER count MIsom@grsm.com R950” » fl/gcsrijugr‘iiqk,cz‘r“1,3811“RA HWilliams@grsm.com \DOOQQUI-F-WN—I Y we? Attorneys for Defendant PALO ALTO FOUNDATION MEDICAL GROUP, INC. LINDBERGH PORTER (SBN: 100091) LITTLER MENDELSON, P. C. ~C33} 333 Bush Street, 34'11 Floor San Francisco, CA 94104 Telephone: (415) 433-1940 Facsimile: (415) 399-8490 LPorter@littler.com MAIKO NAKARAI-KANIVAS (SBN: 271710) LITTLER MENDERLSON, RC. 1255 Treat Blvd., Suite 600 Walnut Creek, CA 94597 Telephone: (925) 932-2468 Facsimile: (925) 946-9809 MNakaraikanivas@littler.com Attorneys for Defendants SUTTER HEALTH AND PALO ALTO MEDICAL FOUNDATION NNNNNNNNwh—‘b—‘r—lh‘b—lb—lb—‘D—ID—t SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA \lQUI-PUJN—‘OKOOOQChUI-FWNHO DIANA P. BLUM, M.D., CASE NO. 115CV277582 Plaintiff, DEFENDANTS’ JOINT MOTION IN LIJWINE T0 EXCLUDE EVIDENCE vs. REGARDING THE SUTTER IVIEDICAL NETWORK SUTTER HEALTH, a California corporation; PALO ALTO FOUNDATION No. 11 vvvvvvvvvvvvvv of 16 MEDICAL GROUP, INC., a California corporation; PALO ALTO MEDICAL Trial Date: January 8, 2018 FOUNDATION, a California corporation; Time: 8:45 am. and DOES I through 20, Dept: 16 Defendants. Complaint Filed: March 4, 2015 FAC Filed: August 7, 2015 28 LIITLERIBiDaSDN. EC, 333mm Flat 3411! SanRanch». CA 941114 415.433.1540 DEFENDANTS’ JOINT MOTION IN LIMNE NO. 11 TO EXCLUDE EVIDENCE RE SMN I. INTRODUCTION In her First Amended Complaint (“FAC”), Plaintiff DIANA BLUM, M.D. (“Plaintiff”) seeks MN to hold Defendants SUTTER HEALTH, PALO ALTO MEDICAL FOUNDATION (“PAMF”) and PALO ALTO FOUNDATION MEDICAL GROUP (“the Physician Group”) (collectively, “Defendants”) jointly liable by alleging they were part of ajoint venture. (See First Amended Complaint [“FAC”] 13-16, Ex. 111} 1 to Declaration of Marcie I. Fitzsimmons in Support of Defendants’ Motion in Limine [“Fitzsimmons Decl.”]). Based on Plaintiff’s opposition to Sutter 00%k Health and PAMF’s motion for summary judgment, Defendants anticipate that Plaintiff will argue \O that the joint venture was the Sutter Medical Network (“SMN”), a third party organization consisting 10 of 19 participating members, to which Sutter Health, PAMF and the Physician Group belong. 11 However, the SMN, which is not a business enterprise and which does not generate or receive any 12 revenue, sheds no light on whether the three Defendants in this lawsuit were part of ajoint venture. 13 Evidence relating to the SMN is therefore irrelevant. Moreover, given what is already a complex 14 organizational structure between the three defendants, introduction of irrelevant evidence pertaining 15 to the SMN will mislead the jury and confuse the issues, and unduly prejudice Defendants. It will 16 also require the admission of numerous documents and testimony from several witnesses, and result 17 in an undue consumption of the Court’s time. Defendants therefore respectfully request that the 18 Court exclude any evidence relating to the SMN at trial. 19 II. FACTUAL BACKGROUND 20 A. The Sutter Medical Network 21 The Sutter Medical Network is an agreement by 19 parties, including medical 22 foundations, medical groups, and independent practice associations of physicians (“IPAs”), to try to 23 improve healthcare by collaborating and identifying best practices, which each party then works to 24 implement in their respective organizations. (SMN Agmt, Recitals E-F, §§ 1.01-1.02, 2.01-2.02; 25 attached to Deposition Transcript of Brian Roach [“Roach Depo.”] 9:16-22, 59221-602, Ex. E to 26 Declaration of Maiko Nakarai-Kanivas in Support of Defendants’ Motions in Limine [“Nakarai 27 Decl.”). It isnot a separate legal entity. (Roach Depo. 1712-10, 59:18-20, EX. E to Nakarai Decl.). 28 Defendants are three of the 19 participating organizations in the SMN. (SMN Agmt, Exh. A to Roch u‘nLER IENDELSON. RC, 33 Bush Steel 2. 34th Flow SanFma‘sm CA 5411» “5.331540 DEFENDANTS’ JOINT MOTION IN LIMINE NO. 11 T0 EXCLUDE EVIDENCE RE SMN Depo, Ex. E to Nakarai Decl.). As set forth in the SMN Participation Agreement, the governing document for the SMN: “[T]he Parties intend to develop an interdependent network of providers committed to transforming the delivery of healthcare and related services . . .by, among other things: implementing proactive changes to work flow processes . ..; creating open referral processes .. .; committing to the use \OOOQONUI-hWNb—I of standardized clinical protocols . . . ;standardizing electronic medical record best practice alerts . . . ;and working to re-align incentives .. . .” (SMN Agmt, Recitals E, attached to Roach Depo., Ex. E to Nakarai Decl.). The work of the SMN is done through committees of representatives from the various parties. (Roach Depo. 17:17- 18:16 Ex. E to Nakarai Decl.). In 2012, for example, SMN committees focused on identifying best clinical practices in quality/P4P, patient satisfaction, patient wait times, network access, and variation reduction. (Id. at 17:17-22:24). The SMN does not own or operate any healthcare clinics, or employ any physicians. (See Declaration of Brian Roach [“Roach Decl.” 1i 2, Ex. R to Nakarai Decl.) Notably, the SMN Participation Agreement does not contain any financial or monetary terms, and does not contemplate any revenue being generated by or for the SMN. (SMN Agmt, Ex. E to Nakarai Decl.; Roach Decl. 113, Ex. R to Nakarai Decl). B. Sutter Health, PAMF And The Physician Group PAMF is a nonprofit corporation that operates multispecialty clinics and other healthcare NNNNNNNNr—It—Ir—It—Ip—p—np—Ap—np—npa facilities in the Bay Area. (PAMF Articles, Art. II, IV(A), V; PAMF Bylaws, Art. I). It is an affiliate of Sutter Health, and receives administrative and other support services from Sutter Health. \lmLh-PUJNb—‘ONOOOQONLII-PNNF—O (See Declaration of Raul Gorospe iso MSJ [Gorospe Decl.”] at 11 3, Ex.L to Nakarai Decl.). Because the corporate practice of medicine is prohibited in California, PAMF cannot employ its own physicians to provide medical services to its patients. See Business & Prof. Code §§ 2052, 2400. Instead, it provides these services by contracting with medical groups such as the Physician Group. (Gorospe Decl. iso MSJ at 1] 6, Ex. L to Nakarai Decl.). PAMF negotiates and enters into Professional Services Agreements with the contracted medical groups on an annual basis, and the compensation PAMF pays for their services is set forth in the respective agreements. (Gorospe Decl. iso MSJ at TH} 2, 5—8, 10, Ex. L to Nakarai Decl.). This independent contractor relationship 28 between PAMF and its contracted medical groups is expressly recognized by Health and Safety LI'I'ILER MENDELSON. EC. 1:! Em Sweet 3. cum Floor San Frindsm. CA 9‘104 llSflMS‘O DEFENDANTS’ JOINT MOTION IN LIMINE NO. 11 TO EXCLUDE EVIDENCE RE SlVfN Code section 1206(1), and exempted from the licensing requirements of California law. Plaintiff is a former employee of the Physician Group. III. LEGAL ARGUMENT A. Evidence Relating To The Sutter Medical Network Is Irrelevant \lONUI-PWN A joint venture is “an undertaking by two or more persons jointly to carry out a single business enterprise for profit.” Nelson v. Abraham (1947) 29 Cal. 2d 745, 749. To establish a joint venture, Plaintiff must demonstrate that the entities: (1) had joint control over the venture; (2) shared DO the profits and losses of the undertaking; and (3) had an ownership interest in the enterprise. Orosco v. Sun-Diamond Corp. (1997) 51 Cal. App. 4th 1659, 1666. Whether ajoint venture exists depends 10 on the intention of the parties. April Enterprises, Inc. v.KTTV (1983) 147 Cal. App. 3d 805, 819-20. 11 Here, Defendants anticipate that Plaintiff will attempt to introduce evidence regarding the 12 SMN to establish that Sutter Health, PAMF and the Physician Group were in a joint venture. 13 However, as demonstrated above, the SMN is simply a collaborative group where the participating 14 parties have agreed to dedicate time and effort, and share data and ideas, in order to identify clinical 15 best practices in the healthcare industry. (SMN Agmt, Recitals E-F, §§ 1.01-1.02, 2.01-2.02; Roach 16 Depo. 9:16-22, 59:21-60:2, Ex. E to Nakarai Decl.). It does not operate healthcare clinics or provide 17 healthcare services, and it does not generate or receive any revenue. (SMN Agmt, Recitals E-F, §§ 18 1.01, 2.01, 3.01 Ex. E to Nakarai Decl; Roach Decl. 11112-4,Ex. R to Nakarai Decl.). This set—up is 19 reflected in the SMN Participation Agreement, which contains no financial or monetary terms of any 2o sort. (SMN Agmt, attached to Roach Depo., Ex. E to Nakarai Decl.; Roach Decl. 113,Ex. R to 21 Nakarai Decl.). The SMN is not a separate legal entity, nor is it even a defendant in this case. 22 (Roach Depo. 17:2-10, 59:18-20. Ex. E to Nakarai Decl.). There is no evidence to the contrary, nor 23 will there be at trial. 24 Because the SMN is not a business enterprise, it has no owners, and there are no profits or 25 losses to be shared. (Roach Decl. 114,Ex. R to Nakarai Decl.). The SMN therefore does not meet the 26 foundational requirements or necessary elements of a joint venture, and cannot be one as a matter of 27 law. See Nelson, 29 Cal. 2d at 749 (joint ventme is a joint undertaking to “carry out a single 28 business enterprise for profit”); Simmons v. Ware (2013) 213 Cal. App. 4th 1035, 1054 (“Agreement LITTLER MENDELSON, P.C. 333 Bush Street 4. Fm 34m San Frandsm. CA 5410‘ “51311940 DEFENDANT S’ JOINT MOTION EN LIMINE NO. 11TO EXCLUDE EVIDENCE RE SMN to share in the profits and losses of the enterprise is . ..essential to ajoint venture . ...”); 0rosco, 51 Cal. App. 4th at 1666 (members of a joint venture “must each have an ownership interest in the enterprise”). Evidence relating to the SMN is therefore irrelevant, and should be excluded at trial. Evid. Code § 350 (“no evidence is admissible except relevant evidence”); Id. § 210 (“‘Relevant \IONUIAUJN evidence’ means evidence having any tendency in reason to prove or disprove any disputed fact . . . that is of consequence to the determination of the action”). B. Evidence Relating To The Sutter Medical Network Should Be Excluded Under Evidence Code Section 352 00 Even if the Court were to find that evidence relating to the SMN is somehow relevant, 1o it should still be excluded because its probative value is substantially outweighed by the risk that its 11 admission will necessitate an undue consumption of time, create a danger of undue prejudice, 12 confuse the issues, and mislead the jury. Evid. Code § 352. Introduction of evidence regarding what 13 the SMN is, how its committees work, what the Participation Agreement says, how it differs from 14 the three defendants, and so on, would be a waste of time because the SMN cannot, as a matter of 15 law, be ajoint venture. Moreover, given that Sutter Health, PAMF and the Physician Group are 16 participating members in the SMN (along with 16 other organizations), the jury is likely to be 17 confused and misled as to the significance of the SMN, and how it fits into the joint venture analysis. 1s Indeed, thejury may be distracted by evidence regarding the SMN, instead of looking at the actual 19 relationships between the three defendants. Introduction of evidence relating to the SMN is also 2o likely to unduly prejudice Defendants, as thejury may conclude based on the name, “Sutter Medical 21 Network,” that some type of joint enterprise exists. The jury may also use irrelevant evidence 22 regarding the SMN in making findings against Defendants, specifically with respect to thejoint 23 venture issue. Plaintiff and her counsel should therefore be ordered not to introduce any evidence 24 regarding, or make any reference to, the Sutter Medical Network. 25 M 26 M 27 Ill 28 UTTLER MENDELSDN. RC. 333 Bush Sue! 5. 34m Flow Sin Frandsw. CA 9‘10! MSAJJJW DEFENDANTS’ JOINT MOTION EN LIMINE NO. 11 TO EXCLUDE EVlDENCE RE SMN IV. CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court grant their motion in limine to exclude any evidence relating to the Sutter Medical Network. p Dated: January 5, 2018 GORDON REES SCULLY MANSUKHANI, LLP By: MARCIE ISOM FITZSIMMONS \OOOQQUI HIEU T. WILLIAMS Attorneys for Defendant PALO ALTO FOUNDATION MEDICAL GROUP, INC. 10 Dated: January 5, 2018 LITTLER MENDELSON, P.C. 11 12 By: A6. 9" EINDBERGH PORTER 1' 13 MAIKO NAKARAI-KANIVAS Attorneys for Defendants 14 PALO ALTO MEDICAL FOUNDATION and SUTTER HEALTH 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON, EC, Sm 333 Bum 6. 34m Hoar San Franfl'sm, CA 94104 -ustmsw DEFENDANTS’ JOINT MOTION IN LIMINE NO. 11TO EXCLUDE EVIDENCE RE SMN