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JAMES McMANIS (40958)
CHRISTINE PEEK (234573)
TYLER ATKINSON (257997)
CHRISTOPHER BOSCIA (258271)
McMANIS FAULKNER
a Professional Corporation
50 W. San Fernando Street, 10th Floor
San Jose, CA 95113
Telephone: (408) 279-8700
Facsimile: (408) 279-3244
Email: jJmcemanis@memanislaw.com
Attorneys for Plaintiff,
SUTTER’S PLACE, INC. dba BAY 101
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA CLARA
SUTTER’S PLACE, INC. dba BAY 101, a Case No. 1-14-CV-267311 (Lead Case)
California corporation,
(Consolidated with 1-16-CV-298883)
OPPOSITION TO CITY’S MOTION IN
vs. LIMINE NO. 5 TO EXCLUDE CLAIMS
AND EVIDENCE BARRED BY THE
CITY OF SAN JOSE, a California municipal STATUTE OF LIMITATIONS
corporation, and DOES 1 THROUGH 10,
Plaintiff,
Trial Date: November 27, 2018
Defendants. Time: 9:00 a.m.
Dept.: 8
Judge: Hon. Sunil R. Kulkarni
OPPOSITION TO CITY’S MOTION IN LIMINE NO. 5 TO EXCLUDE CLAIMS AND EVIDENCE BARRED
BY THE STATUTE OF LIMITATIONS; CASE NO. 1-14-CV-267311 (LEAD)co OND
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OPPOSITION TO CITY’S MOTION IN LIMINE NO. 5
Defendant, the City of San Jose (“City”), requests an order “barring Bay 101 from
presenting claims and offering evidence relating to claims barred by the statute of limitations . . .
.” (City’s MIL no. 5 at 2.) The City’s motion is procedurally defective, not supported by the
facts or law relevant to this case, and must be denied.
I. The Statute of Limitations Does Not Determine the Admissibility of Evidence.
As a threshold matter, the City’s motion should be denied because the City erroneously
conflates the question of admissibility of evidence with the question of when a statute of
limitations commenced. Even if the Court were to determine the statute of limitations question
at this time—and it should not do so without hearing evidence—the statute of limitations is not
dispositive of whether evidence may be relevant. For example, even evidence predating the
limitations period may be relevant as to “motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake or accident ....” (See Evid. Code § 1101.)
Il. The City’s Motion Improperly Seeks Summary Adjudication.
In addition, the City’s request for summary adjudication of claims is procedurally
improper. The Sixth District has cautioned, “[i]n limine motions are designed to facilitate the
management of a case, generally by deciding difficult evidentiary issues in advance of trial.”
(Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1593.) “What in limine
motions are not designed to do is replace the dispositive motions prescribed by the Code of Civil
Procedure.” Jd. (emphasis in original). Motions in limine that seek to substitute dispositive
motions are disfavored because they “circumvent procedural protections provided by the
statutory motions or by trial on the merits.” Jd. at 1594. “To have the sufficiency of the pleading
or the existence of triable issues of material fact decided in the guise of a motion in limine is a
perversion of the process.” Jd. at 1594 (quoting R & B Auto Center, Inc. v. Farmers Group, Inc.
(2006) 140 Cal.App.4th 327, 371).
Here, the City should not be permitted to use an in limine motion summarily to dispose of
legal claims or issues, and without the procedural protections normally afforded by statute.
//1
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OPPOSITION TO CITY’S MOTION IN LIMINE NO. 5 TO EXCLUDE CLAIMS AND EVIDENCE BARRED
BY THE STATUTE OF LIMITATIONS; CASE NO. 1-14-CV-267311 (LEAD)Ill. |The City’s Motion in Limine Improperly Relies on Disputed Facts, And The Statute
of Limitations Does Not Limit Plaintiff’s Recovery.
The City’s motion is also improper because it assumes facts as undisputed that are very
much contested. The parties have substantial factual disagreements. The Court must not rule on
an in limine motion that bars evidence as to when harm occurred, or concerning plaintiff's tolling
theories. The City’s statute of limitations defense fails for several independent reasons.
A. Additional Government Claims Would Have Been Futile.
Bay 101 propounded many government claims against the City since the 2009 Settlement
Agreement, all concerning challenges to the regulatory fees. The City rejected these claims.
Bay 101 also sent the City several letters seeking to obtain the annual accountings promised by
the City. The City expressed a willingness to work with Bay 101 on the issue, but ultimately
rebuffed Bay 101, arguing that an “accounting” need only consist of four lines of information.
Bay 101 filed its declaratory relief action after the City’s first failure to provide an annual
accounting. The City defended that action.
Accordingly, the City should not be permitted to take a position that additional
government claims were needed. Jonathan Neil & Assoc., Inc. v. Jones (2004) 33 Cal.4th 917,
936 (“Failure to exhaust administrative remedies is excused if it is clear that exhaustion would be
futile.”); Doster v. County of San Diego (1988) 203 Cal.App.3d 257, 261 (plaintiff need not
pursue administrative remedies where the agency’s decision is certain to be adverse); Ogo
Associates v. City of Torrance (1974) 37 Cal.App.3d 830, 834 (“To require appellants to apply to
the city council for a variance on behalf of this project would be to require them to pump oil
from a dry hole.”). At a minimum, plaintiff should be permitted to put on its evidence at trial to
establish futility. Howard v. Cty. of San Diego (2010) 184 Cal.App.4th 1422, 1430-31 (“The
question of whether it would be futile to pursue additional administrative remedies may be a
question of fact.”).
B. The City Is Estopped from Asserting the Statute of Limitations,
Even if the statute of limitations had been triggered more than a year before Bay 101
presented its government claim, the result would be the same. “It is well settled that a public
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OPPOSITION TO CITY’S MOTION IN LIMINE NO. 5 TO EXCLUDE CLAIMS AND EVIDENCE BARRED
BY THE STATUTE OF LIMITATIONS; CASE NO. 1-14-CV-267311 (LEAD)w
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entity may be estopped from asserting the limitations of the claims statute where its agents or
employees have prevented or deterred the filing of a timely claim by some affirmative act.
[Citations.]” Ard v. Cty. of Contra Costa (2001) 93 Cal.App.4th 339, 346-347. “This rule has
generally been applied in the context of a plaintiff's failure to file a claim against a public entity
in accordance with the claim filing statutes.” Jd. at 347 (collecting cases). Equitable estoppel
does not require that the estopped party make misleading statements. J. P. v. Carlsbad Unified
Sch. Dist. (2014) 232 Cal.App.4th 323, 335.
Estoppel is appropriate in this case because the City deterred Bay 101’s claim by
expressing an initial willingness to provide additional financial information, and by taking an
affirmative position that all of the regulatory fees—which were the subject of the accountings in
the first place—were for cost-recovery purposes. Estoppel is also appropriate because the City
had no intention of providing the accountings required under the 2009 Settlement Agreement, as
only revealed recently by the City’s Person Most Qualified at deposition in this case.
C. The City’s Conduct Represents A Continuing Violation.
Under the “continuing violation” doctrine, courts have recognized an exception to the
strict application of a statute of limitations. See, e.g., Komarova v. National Credit Acceptance,
Inc. (2009) 175 Cal.App.4th 324, 343, review denied (Oct. 14, 2009) (debt collection); Wyatt v.
Union Mortgage Company (1979) 24 Cal.3d 773, 787 (civil conspiracy). The continuing
violation doctrine aggregates wrongs and treats the limitations period for all of them upon
commission of the last one. Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 811-818. A
continuing course of conduct may be found if (1) the actions are sufficiently similar in kind; (2)
they occur with sufficient frequency; and (3) they have not acquired a degree of “permanence.”
Id. at 802. The doctrine is not limited to a particular variety of cases, but has broader
application. Yanowitz v. L’Oreal (2005) 36 Cal. 4th 1028, 1056-1061.
No authority excludes the continuing violation doctrine from breach of contract actions.
A breach of contract has long been viewed by the law as a “wrong.” See, e.g., Domino v.
Mobley (1956) 144 Cal.App.2d 24, 28 (“A breach of a contract is a wrong .. . .”); see CACI No.
303, Sources and Authority (“The wrongful, i.e., the unjustified or unexcused, failure to perform
3
OPPOSITION TO CITY’S MOTION IN LIMINE NO. 5 TO EXCLUDE CLAIMS AND EVIDENCE BARRED
BY THE STATUTE OF LIMITATIONS; CASE NO. 1-14-CV-267311 (LEAD)acontract is a breach . . . .” [citation omitted].) Further, the continuing violation doctrine is
flexible in its application. For example, in Komarova, supra, 175 Cal.App.4th at 343, a plaintiff
sought recovery for emotional distress and under a debt collection statute. The Komarova court
upheld the trial court’s finding that the “defendant’s statute of limitations defense was overcome
by the continuing violation doctrine, which permits recovery for actions that take place outside
the limitations period if these actions are sufficiently linked to unlawful conduct within the
limitations period.” Id. (quotation removed). “The key is whether the conduct complained of
constitutes a continuing pattern and course of conduct as opposed to unrelated discrete acts. If
there is a pattern, then the suit is timely if the action is filed within one year of the most recent
[violation] [citation], and the entire course of conduct is at issue.” Jd. (quoting Joseph v. J.J.
Mac Intyre Companies, L.L.C. (N. D. Cal. 2003) 281 F.Supp.2d 1156, 1161).
Here, the doctrine applies because the failure to provide an accounting was similar in
kind, was owned frequently (annually), but had not acquired a degree of permanence. On the
third prong, “permanence,” the extent of harm was unknown, potentially curable, and the
correspondence between the parties was civil, and initially seemed to work toward a resolution
of the disagreement. Only during litigation did Bay 101 obtain evidence showing the City failed
to comport with standards of good faith and fair dealing. See Restatement (Second) of Contracts
§ 241 (identifying “circumstances significant in determining whether a failure Is material,”
including whether the breaching party acted fairly and in good faith), The “series of wrongs” —
the repeated failures to provide annual accountings — rose to a level to warrant action when Bay
101 began expending considerable financial resources to litigate the regulation fee once again,
and to obtain information that was supposed to be provided in the form of accountings. The
limitations period for all of these wrongs should be the period applicable to the last of them.
///
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OPPOSITION TO CITY’S MOTION IN LIMINE NO. 5 TO EXCLUDE CLAIMS AND EVIDENCE BARRED
BY THE STATUTE OF LIMITATIONS; CASE NO. 1-14-CV-267311 (LEAD)&
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CONCLUSION
For the foregoing reasons, plaintiffs respectfully request that the Court deny the City’s
motion in limine.
Dated: November 27, 2018 MoMANIS FAULKNER
MES McMANIS
itorneys for Plaintiff,
TTER’S PLACE, INC. dba BAY 101
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OPPOSITION TO CITY’S MOTION IN LIMINE NO. 5 TO EXCLUDE CLAIMS AND EVIDENCE BARRED
BY THE STATUTE OF LIMITATIONS; CASE NO. 1-14-CV-267311 (LEAD)
Preview
oom IN DH PB WY RN NY YN NY N NN KN Hee Be se Be Be Be Be Be Be oN A A KF BH =F SD we IA DH BRB WY | JAMES McMANIS (40958) CHRISTINE PEEK (234573) TYLER ATKINSON (257997) CHRISTOPHER BOSCIA (258271) McMANIS FAULKNER a Professional Corporation 50 W. San Fernando Street, 10th Floor San Jose, CA 95113 Telephone: (408) 279-8700 Facsimile: (408) 279-3244 Email: jJmcemanis@memanislaw.com Attorneys for Plaintiff, SUTTER’S PLACE, INC. dba BAY 101 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA SUTTER’S PLACE, INC. dba BAY 101, a Case No. 1-14-CV-267311 (Lead Case) California corporation, (Consolidated with 1-16-CV-298883) OPPOSITION TO CITY’S MOTION IN vs. LIMINE NO. 5 TO EXCLUDE CLAIMS AND EVIDENCE BARRED BY THE CITY OF SAN JOSE, a California municipal STATUTE OF LIMITATIONS corporation, and DOES 1 THROUGH 10, Plaintiff, Trial Date: November 27, 2018 Defendants. Time: 9:00 a.m. Dept.: 8 Judge: Hon. Sunil R. Kulkarni OPPOSITION TO CITY’S MOTION IN LIMINE NO. 5 TO EXCLUDE CLAIMS AND EVIDENCE BARRED BY THE STATUTE OF LIMITATIONS; CASE NO. 1-14-CV-267311 (LEAD)co OND 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 OPPOSITION TO CITY’S MOTION IN LIMINE NO. 5 Defendant, the City of San Jose (“City”), requests an order “barring Bay 101 from presenting claims and offering evidence relating to claims barred by the statute of limitations . . . .” (City’s MIL no. 5 at 2.) The City’s motion is procedurally defective, not supported by the facts or law relevant to this case, and must be denied. I. The Statute of Limitations Does Not Determine the Admissibility of Evidence. As a threshold matter, the City’s motion should be denied because the City erroneously conflates the question of admissibility of evidence with the question of when a statute of limitations commenced. Even if the Court were to determine the statute of limitations question at this time—and it should not do so without hearing evidence—the statute of limitations is not dispositive of whether evidence may be relevant. For example, even evidence predating the limitations period may be relevant as to “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident ....” (See Evid. Code § 1101.) Il. The City’s Motion Improperly Seeks Summary Adjudication. In addition, the City’s request for summary adjudication of claims is procedurally improper. The Sixth District has cautioned, “[i]n limine motions are designed to facilitate the management of a case, generally by deciding difficult evidentiary issues in advance of trial.” (Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1593.) “What in limine motions are not designed to do is replace the dispositive motions prescribed by the Code of Civil Procedure.” Jd. (emphasis in original). Motions in limine that seek to substitute dispositive motions are disfavored because they “circumvent procedural protections provided by the statutory motions or by trial on the merits.” Jd. at 1594. “To have the sufficiency of the pleading or the existence of triable issues of material fact decided in the guise of a motion in limine is a perversion of the process.” Jd. at 1594 (quoting R & B Auto Center, Inc. v. Farmers Group, Inc. (2006) 140 Cal.App.4th 327, 371). Here, the City should not be permitted to use an in limine motion summarily to dispose of legal claims or issues, and without the procedural protections normally afforded by statute. //1 1 OPPOSITION TO CITY’S MOTION IN LIMINE NO. 5 TO EXCLUDE CLAIMS AND EVIDENCE BARRED BY THE STATUTE OF LIMITATIONS; CASE NO. 1-14-CV-267311 (LEAD)Ill. |The City’s Motion in Limine Improperly Relies on Disputed Facts, And The Statute of Limitations Does Not Limit Plaintiff’s Recovery. The City’s motion is also improper because it assumes facts as undisputed that are very much contested. The parties have substantial factual disagreements. The Court must not rule on an in limine motion that bars evidence as to when harm occurred, or concerning plaintiff's tolling theories. The City’s statute of limitations defense fails for several independent reasons. A. Additional Government Claims Would Have Been Futile. Bay 101 propounded many government claims against the City since the 2009 Settlement Agreement, all concerning challenges to the regulatory fees. The City rejected these claims. Bay 101 also sent the City several letters seeking to obtain the annual accountings promised by the City. The City expressed a willingness to work with Bay 101 on the issue, but ultimately rebuffed Bay 101, arguing that an “accounting” need only consist of four lines of information. Bay 101 filed its declaratory relief action after the City’s first failure to provide an annual accounting. The City defended that action. Accordingly, the City should not be permitted to take a position that additional government claims were needed. Jonathan Neil & Assoc., Inc. v. Jones (2004) 33 Cal.4th 917, 936 (“Failure to exhaust administrative remedies is excused if it is clear that exhaustion would be futile.”); Doster v. County of San Diego (1988) 203 Cal.App.3d 257, 261 (plaintiff need not pursue administrative remedies where the agency’s decision is certain to be adverse); Ogo Associates v. City of Torrance (1974) 37 Cal.App.3d 830, 834 (“To require appellants to apply to the city council for a variance on behalf of this project would be to require them to pump oil from a dry hole.”). At a minimum, plaintiff should be permitted to put on its evidence at trial to establish futility. Howard v. Cty. of San Diego (2010) 184 Cal.App.4th 1422, 1430-31 (“The question of whether it would be futile to pursue additional administrative remedies may be a question of fact.”). B. The City Is Estopped from Asserting the Statute of Limitations, Even if the statute of limitations had been triggered more than a year before Bay 101 presented its government claim, the result would be the same. “It is well settled that a public 2 OPPOSITION TO CITY’S MOTION IN LIMINE NO. 5 TO EXCLUDE CLAIMS AND EVIDENCE BARRED BY THE STATUTE OF LIMITATIONS; CASE NO. 1-14-CV-267311 (LEAD)w Co Om IN a 10 ul 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 entity may be estopped from asserting the limitations of the claims statute where its agents or employees have prevented or deterred the filing of a timely claim by some affirmative act. [Citations.]” Ard v. Cty. of Contra Costa (2001) 93 Cal.App.4th 339, 346-347. “This rule has generally been applied in the context of a plaintiff's failure to file a claim against a public entity in accordance with the claim filing statutes.” Jd. at 347 (collecting cases). Equitable estoppel does not require that the estopped party make misleading statements. J. P. v. Carlsbad Unified Sch. Dist. (2014) 232 Cal.App.4th 323, 335. Estoppel is appropriate in this case because the City deterred Bay 101’s claim by expressing an initial willingness to provide additional financial information, and by taking an affirmative position that all of the regulatory fees—which were the subject of the accountings in the first place—were for cost-recovery purposes. Estoppel is also appropriate because the City had no intention of providing the accountings required under the 2009 Settlement Agreement, as only revealed recently by the City’s Person Most Qualified at deposition in this case. C. The City’s Conduct Represents A Continuing Violation. Under the “continuing violation” doctrine, courts have recognized an exception to the strict application of a statute of limitations. See, e.g., Komarova v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324, 343, review denied (Oct. 14, 2009) (debt collection); Wyatt v. Union Mortgage Company (1979) 24 Cal.3d 773, 787 (civil conspiracy). The continuing violation doctrine aggregates wrongs and treats the limitations period for all of them upon commission of the last one. Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 811-818. A continuing course of conduct may be found if (1) the actions are sufficiently similar in kind; (2) they occur with sufficient frequency; and (3) they have not acquired a degree of “permanence.” Id. at 802. The doctrine is not limited to a particular variety of cases, but has broader application. Yanowitz v. L’Oreal (2005) 36 Cal. 4th 1028, 1056-1061. No authority excludes the continuing violation doctrine from breach of contract actions. A breach of contract has long been viewed by the law as a “wrong.” See, e.g., Domino v. Mobley (1956) 144 Cal.App.2d 24, 28 (“A breach of a contract is a wrong .. . .”); see CACI No. 303, Sources and Authority (“The wrongful, i.e., the unjustified or unexcused, failure to perform 3 OPPOSITION TO CITY’S MOTION IN LIMINE NO. 5 TO EXCLUDE CLAIMS AND EVIDENCE BARRED BY THE STATUTE OF LIMITATIONS; CASE NO. 1-14-CV-267311 (LEAD)acontract is a breach . . . .” [citation omitted].) Further, the continuing violation doctrine is flexible in its application. For example, in Komarova, supra, 175 Cal.App.4th at 343, a plaintiff sought recovery for emotional distress and under a debt collection statute. The Komarova court upheld the trial court’s finding that the “defendant’s statute of limitations defense was overcome by the continuing violation doctrine, which permits recovery for actions that take place outside the limitations period if these actions are sufficiently linked to unlawful conduct within the limitations period.” Id. (quotation removed). “The key is whether the conduct complained of constitutes a continuing pattern and course of conduct as opposed to unrelated discrete acts. If there is a pattern, then the suit is timely if the action is filed within one year of the most recent [violation] [citation], and the entire course of conduct is at issue.” Jd. (quoting Joseph v. J.J. Mac Intyre Companies, L.L.C. (N. D. Cal. 2003) 281 F.Supp.2d 1156, 1161). Here, the doctrine applies because the failure to provide an accounting was similar in kind, was owned frequently (annually), but had not acquired a degree of permanence. On the third prong, “permanence,” the extent of harm was unknown, potentially curable, and the correspondence between the parties was civil, and initially seemed to work toward a resolution of the disagreement. Only during litigation did Bay 101 obtain evidence showing the City failed to comport with standards of good faith and fair dealing. See Restatement (Second) of Contracts § 241 (identifying “circumstances significant in determining whether a failure Is material,” including whether the breaching party acted fairly and in good faith), The “series of wrongs” — the repeated failures to provide annual accountings — rose to a level to warrant action when Bay 101 began expending considerable financial resources to litigate the regulation fee once again, and to obtain information that was supposed to be provided in the form of accountings. The limitations period for all of these wrongs should be the period applicable to the last of them. /// //1 //1 //1 //1 4 OPPOSITION TO CITY’S MOTION IN LIMINE NO. 5 TO EXCLUDE CLAIMS AND EVIDENCE BARRED BY THE STATUTE OF LIMITATIONS; CASE NO. 1-14-CV-267311 (LEAD)& oC Oo NIN Dw 10 ul 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CONCLUSION For the foregoing reasons, plaintiffs respectfully request that the Court deny the City’s motion in limine. Dated: November 27, 2018 MoMANIS FAULKNER MES McMANIS itorneys for Plaintiff, TTER’S PLACE, INC. dba BAY 101 5 OPPOSITION TO CITY’S MOTION IN LIMINE NO. 5 TO EXCLUDE CLAIMS AND EVIDENCE BARRED BY THE STATUTE OF LIMITATIONS; CASE NO. 1-14-CV-267311 (LEAD)