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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: jmcmanis@memanislaw.com
Attorneys for Plaintiff,
SUTTER’S PLACE, INC. dba BAY 101
SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF SANTA CLARA
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SUTTER’S PLACE, INC. dba BAY 101, a Case No. 1-14-CV-267311 (Lead Case)
13 California corporation,
(Consolidated with 1-16-CV-298883)
14 Plaintiff,
15 VS. PLAINTIFF’S MOTION IN LIMINE 5 TO
EXCLUDE EVIDENCE OF ALLEGED
16 CITY OF SAN JOSE, a California municipal CRIMINAL ACTIVITY AND ANY
corporation, and DOES 1 THROUGH 10, PURPORTED NEED FOR REGULATION
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Defendants. Trial Date: November 27, 2018
18 Time: 9:00 a.m.
Dept.: 8
19 Judge: Hon. Sunil R. Kulkarni
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PLAINTIFF’S MOTION JN LIMINE 5 —- MOTION TO EXCLUDE EVIDENCE OF ALLEGED CRIMINAL
ACTIVITY; CASE NO. 1-14-CV-267311 (LEAD)
INTRODUCTION
Plaintiff, Sutter’s Place, Inc., dba Bay 101 (“Bay 101”), hereby moves this Court in
limine, for an Order precluding defendant, City of San Jose (“the City”), from introducing
evidence at trial of any alleged criminal activities, criminal statistics, calls for service, or any
purported need for regulation. Such evidence is not relevant to Bay 101’s claim for breach of
contract, and would create a substantial danger of undue prejudice towards Bay 101, confusing
the issues or misleading the jury.
STATEMENT OF FACTS
In this consolidated action for breach of contract, Bay 101 challenges the City’s failure to
10 provide annual accountings of “fees” it charges Bay 101 to cover the City’s alleged costs of
11 regulation, “in sufficient detail to allow Bay 101 to determine the use of all amounts paid,” as
12 required by the parties’ 2009 Settlement Agreement and Mutual Release (“2009 Settlement”).
13 (See Declaration of James McManis in Support of Plaintiffs Motions in Limine (“McManis
14 Decl.”), Exhs. A & D.)
15 Pursuant to San Jose Municipal Code (“SJMC”) section 16.30.060.B, the City requires
16 cardroom permittees to pay an annual “cardroom regulation fee,” formerly known as the “table
17 fee.” (See SIMC, § 16.30.060.B; McManis Decl., Exh. I, at 10:4-12.) The City claims this fee is
18 to cover the annual cost of regulating its two cardrooms, Bay 101 and Garden City, Inc. dba
19 Casino M8trix (“M8trix”), over any given fiscal year. (See McManis Decl., Exh. I, at 10:4-21,
20 76:18-77:4.) The entity within the City that is charged with regulating the cardrooms is the
21 Division of Gaming Control (“DGC”). (See SJMC, §§ 16.06.010, 16.06.020.) Although the
22 DGC is a division of the San Jose Police Department (“SJPD”) (see SJMC, § 16.06.010), the
23 DGC’s administrator “is not authorized to conduct criminal investigations.” (See SJMC, §
24 16.06.030 [emphasis added].) “Criminal investigations shall be conducted separately by the
25 Police department and not by the administrator of the division of gaming control.” (SJMC, §
26 16.06.030.)
27 Other provisions of Title 16 require the cardrooms to report to the SJPD conduct that
28 raises a reasonable suspicion that a felony or misdemeanor has been committed on the premises,
PLAINTIFF’S MOTION IN LIMINE 5 - MOTION 75 EXCLUDE EVIDENCE OF ALLEGED CRIMINAL,
ACTIVITY; CASE NO. 1-14-CV-267311 (LEAD)
or that a violation of Title 16 has occurred. (See SJMC, § 16.14.010.A.) Cardrooms must
maintain a chronological log of such criminal activity (see SJMC, § 16.14.010.B), whether or not
such activity has anything to do with gaming.
Title 16 also states the chief of police “shall prepare an annual report evaluating the
impact of cardroom gambling on crime in the San José metropolitan area.” (See SJMC, §
16.04.050.A.) In carrying out this obligation, Chief Edgardo Garcia has stated:
To determine fully whether gambling activity has had a direct impact on crime in
the City, the Department would have to conduct a more comprehensive inquiry
into each incident listed in this report. This report does not do that.
(See Memorandum from Chief Garcia to Public Safety, Finance, and Strategic Support
10 Committee, (Sept. 5, 2018), p. 1 (2018 Garcia Memo”), available at
11 https://sanjose.legistar.com/DepartmentDetail.aspx?ID=30890&GUID=AD2BBF 1D-A701-
12 A4CDE-B9FC-851732F475 1 B&R=66556639-724a-42dd-8f02-0e230e0e8005 [link for “Agenda”
13 on 9/20/18, item (d)3, link for “Memorandum”] [emphasis added].)
14 The municipal code further provides that the report “shall also evaluate any regulatory
15 issues that the chief of police may wish to bring to the attention of the city council,” but since
16 2015, the chief of police has prepared a separate report concerning Title 16 compliance. (See
17 SJMC, § 16.04.050.A; Memorandum from Chief Garcia to Public Safety, Finance, and Strategic
18 Support Committee, (Sept. 5, 2018), p. 1 (“2018 Garcia Title 16 Memo”), available at
19 https://sanjose.legistar.com/DepartmentDetail .aspx?ID=30890&GUID=AD2BBF 1D-A701-
20 4CDE-B9FC-851732F4751 B&R=66556639-724a-42dd-8f02-0e230e0e8005 [link for “Agenda”
21 on 9/20/18, item (d)2, link for “Memorandum”].)
22 LEGAL ARGUMENT
23 I Any Alleged Criminal Activity at the Cardrooms, and Any Suggestion
that Regulation Is Necessary Due to Such Alleged Activities, Is
24 Irrelevant to Bay 101’s Claim for Breach of Contract.
25 Evidence Code section 210 defines “relevant evidence” “evidence .. . having any
26 tendency in reason to prove or disprove any disputed fact that is of consequence to the
27 determination of the action.” (Evid. Code, § 210.) Evidence Code section 350 further provides
28 that “no evidence is admissible except relevant evidence.” (Evid. Code, § 350.)
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PLAINTIFF’S MOTION JN LIMINE 5 — MOTION TO EXCLUDE EVIDENCE OF ALLEGED CRIMINAL
ACTIVITY; CASE NO. 1-14-CV-267311 (LEAD)
“A cause of action for damages for breach of contract is comprised of the following
elements: (1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3)
defendant’s breach, and (4) the resulting damages to plaintiff.” (Agam v. Gavra (2015) 236
Cal.App.4th 91, 104 [quoting Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222
Cal.App.3d 1371, 1388] [internal quotation marks omitted].) Evidence of alleged criminal
activities, whether or not related to gaming, and evidence of the City’s purported need for
regulation, has no tendency to prove or disprove any of these elements.
The primary issue in this case — whether the City breached its contractual duty by failing
to provide the annual “accountings” required by the 2009 Settlement — cannot be answered
10 through discussion of the facts underlying the adoption of Title 16, or Title 16’s requirements.
11 Likewise, neither the cardrooms’ compliance with Title 16, nor the reasonable suspicions they
12 are required to report, have any bearing on whether the City did what the plain language of the
13 2009 Settlement requires.
14 Il. Any Alleged Evidence of Criminal Activity At Bay 101 Would Be
Unduly Prejudicial And Would Confuse the Issues of This Case.
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Even if suspected criminal activity were somehow relevant to this lawsuit, the probative
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value of such evidence would be substantially outweighed by the probability that its admission
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would create substantial prejudice, confuse the issues, or mislead the jury. Evidence Code
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section 352 provides that “[t]he court in its discretion may exclude evidence if its probative value
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is substantially outweighed by the probability that its admission will (a) necessitate undue
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consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues,
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or of misleading the jury.” (Evid. Code, § 352.)
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The subject of criminal activity is particularly suited to evoke emotional bias. (See, e.g.,
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People v. Jefferson (2015) 238 Cal.App.4th 494, 507 [“evidence that Jefferson possessed
24
firearms on other occasions unduly prejudiced him. The prejudice referred to in Evidence Code
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section 352 applies to evidence which uniquely tends to evoke an emotional bias against the
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defendant[.]”] [internal quotations and citations omitted].) The City requires reporting of alleged
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criminal activity that is reasonably suspected, regardless of whether the reported conduct actually
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PLAINTIFF’S MOTION JN LIMINE 5 — MOTION TO EXCLUDE EVIDENCE OF ALLEGED CRIMINAL
ACTIVITY; CASE NO. 1-14-CV-267311 (LEAD)
results in an arrest or a conviction, and regardless of whether the allegations were heard and
decided by a jury. (See SIMC, § 16.14.010.) Reasonable suspicion is a very low standard —
more than a hunch but “obviously” less than probable cause. (See People v. Brown (2015) 61
Cal.4th 968, 981 [quoting United States v. Sokolow (1989) 490 U.S. 1, 7].) “Since ‘substantial
prejudicial effect [is] inherent in [such] evidence,’ uncharged offenses are admissible only if they
have substantial probative value.” (People v. Hendrix (2013) 214 Cal.App.4th 216, 244 [quoting
People v. Ewoldt (1994) 7 Cal.4th 380, 404] [internal quotation marks omitted].) Here, it would
be highly prejudicial and inflammatory to allow the City to refer to such activity as though
crimes had actually occurred, or to insinuate that Bay 101 is somehow to blame. Moreover, it
10 would be unduly time consuming to sort out whether the reported activity did in fact amount to a
11 crime, or had any connection to gaming. (See Gouskos v. Aptos Village Garage, Inc. (2001) 94
12 Cal.App.4th 754, 762 [court rationally could have viewed evidence as unduly time consuming,
13 because facts had not been fleshed out in discovery].) Such low value and highly inflammatory
14 evidence should not be admitted.
15 CONCLUSION
16 For the reasons stated herein, this Court should exclude evidence of any alleged criminal
17 events, or related statistics, pursuant to Evidence Code sections 350 and 352.
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19 Dated: November 21, 2018 McMANIS FAULKNER
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21 R ATKINSON
22 Attorneys for Plaintiff,
SUTTER’S PLACE, INC. dba BAY 101
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PLAINTIFF’S MOTION JN LIMINE 5 - MOTION TO EXCLUDE EVIDENCE OF ALLEGED CRIMINAL
ACTIVITY; CASE NO, 1I-14-CV-267311 (LEAD)
Preview
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: jmcmanis@memanislaw.com Attorneys for Plaintiff, SUTTER’S PLACE, INC. dba BAY 101 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF SANTA CLARA 11 12 SUTTER’S PLACE, INC. dba BAY 101, a Case No. 1-14-CV-267311 (Lead Case) 13 California corporation, (Consolidated with 1-16-CV-298883) 14 Plaintiff, 15 VS. PLAINTIFF’S MOTION IN LIMINE 5 TO EXCLUDE EVIDENCE OF ALLEGED 16 CITY OF SAN JOSE, a California municipal CRIMINAL ACTIVITY AND ANY corporation, and DOES 1 THROUGH 10, PURPORTED NEED FOR REGULATION 17 Defendants. Trial Date: November 27, 2018 18 Time: 9:00 a.m. Dept.: 8 19 Judge: Hon. Sunil R. Kulkarni 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION JN LIMINE 5 —- MOTION TO EXCLUDE EVIDENCE OF ALLEGED CRIMINAL ACTIVITY; CASE NO. 1-14-CV-267311 (LEAD) INTRODUCTION Plaintiff, Sutter’s Place, Inc., dba Bay 101 (“Bay 101”), hereby moves this Court in limine, for an Order precluding defendant, City of San Jose (“the City”), from introducing evidence at trial of any alleged criminal activities, criminal statistics, calls for service, or any purported need for regulation. Such evidence is not relevant to Bay 101’s claim for breach of contract, and would create a substantial danger of undue prejudice towards Bay 101, confusing the issues or misleading the jury. STATEMENT OF FACTS In this consolidated action for breach of contract, Bay 101 challenges the City’s failure to 10 provide annual accountings of “fees” it charges Bay 101 to cover the City’s alleged costs of 11 regulation, “in sufficient detail to allow Bay 101 to determine the use of all amounts paid,” as 12 required by the parties’ 2009 Settlement Agreement and Mutual Release (“2009 Settlement”). 13 (See Declaration of James McManis in Support of Plaintiffs Motions in Limine (“McManis 14 Decl.”), Exhs. A & D.) 15 Pursuant to San Jose Municipal Code (“SJMC”) section 16.30.060.B, the City requires 16 cardroom permittees to pay an annual “cardroom regulation fee,” formerly known as the “table 17 fee.” (See SIMC, § 16.30.060.B; McManis Decl., Exh. I, at 10:4-12.) The City claims this fee is 18 to cover the annual cost of regulating its two cardrooms, Bay 101 and Garden City, Inc. dba 19 Casino M8trix (“M8trix”), over any given fiscal year. (See McManis Decl., Exh. I, at 10:4-21, 20 76:18-77:4.) The entity within the City that is charged with regulating the cardrooms is the 21 Division of Gaming Control (“DGC”). (See SJMC, §§ 16.06.010, 16.06.020.) Although the 22 DGC is a division of the San Jose Police Department (“SJPD”) (see SJMC, § 16.06.010), the 23 DGC’s administrator “is not authorized to conduct criminal investigations.” (See SJMC, § 24 16.06.030 [emphasis added].) “Criminal investigations shall be conducted separately by the 25 Police department and not by the administrator of the division of gaming control.” (SJMC, § 26 16.06.030.) 27 Other provisions of Title 16 require the cardrooms to report to the SJPD conduct that 28 raises a reasonable suspicion that a felony or misdemeanor has been committed on the premises, PLAINTIFF’S MOTION IN LIMINE 5 - MOTION 75 EXCLUDE EVIDENCE OF ALLEGED CRIMINAL, ACTIVITY; CASE NO. 1-14-CV-267311 (LEAD) or that a violation of Title 16 has occurred. (See SJMC, § 16.14.010.A.) Cardrooms must maintain a chronological log of such criminal activity (see SJMC, § 16.14.010.B), whether or not such activity has anything to do with gaming. Title 16 also states the chief of police “shall prepare an annual report evaluating the impact of cardroom gambling on crime in the San José metropolitan area.” (See SJMC, § 16.04.050.A.) In carrying out this obligation, Chief Edgardo Garcia has stated: To determine fully whether gambling activity has had a direct impact on crime in the City, the Department would have to conduct a more comprehensive inquiry into each incident listed in this report. This report does not do that. (See Memorandum from Chief Garcia to Public Safety, Finance, and Strategic Support 10 Committee, (Sept. 5, 2018), p. 1 (2018 Garcia Memo”), available at 11 https://sanjose.legistar.com/DepartmentDetail.aspx?ID=30890&GUID=AD2BBF 1D-A701- 12 A4CDE-B9FC-851732F475 1 B&R=66556639-724a-42dd-8f02-0e230e0e8005 [link for “Agenda” 13 on 9/20/18, item (d)3, link for “Memorandum”] [emphasis added].) 14 The municipal code further provides that the report “shall also evaluate any regulatory 15 issues that the chief of police may wish to bring to the attention of the city council,” but since 16 2015, the chief of police has prepared a separate report concerning Title 16 compliance. (See 17 SJMC, § 16.04.050.A; Memorandum from Chief Garcia to Public Safety, Finance, and Strategic 18 Support Committee, (Sept. 5, 2018), p. 1 (“2018 Garcia Title 16 Memo”), available at 19 https://sanjose.legistar.com/DepartmentDetail .aspx?ID=30890&GUID=AD2BBF 1D-A701- 20 4CDE-B9FC-851732F4751 B&R=66556639-724a-42dd-8f02-0e230e0e8005 [link for “Agenda” 21 on 9/20/18, item (d)2, link for “Memorandum”].) 22 LEGAL ARGUMENT 23 I Any Alleged Criminal Activity at the Cardrooms, and Any Suggestion that Regulation Is Necessary Due to Such Alleged Activities, Is 24 Irrelevant to Bay 101’s Claim for Breach of Contract. 25 Evidence Code section 210 defines “relevant evidence” “evidence .. . having any 26 tendency in reason to prove or disprove any disputed fact that is of consequence to the 27 determination of the action.” (Evid. Code, § 210.) Evidence Code section 350 further provides 28 that “no evidence is admissible except relevant evidence.” (Evid. Code, § 350.) 2 PLAINTIFF’S MOTION JN LIMINE 5 — MOTION TO EXCLUDE EVIDENCE OF ALLEGED CRIMINAL ACTIVITY; CASE NO. 1-14-CV-267311 (LEAD) “A cause of action for damages for breach of contract is comprised of the following elements: (1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff.” (Agam v. Gavra (2015) 236 Cal.App.4th 91, 104 [quoting Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388] [internal quotation marks omitted].) Evidence of alleged criminal activities, whether or not related to gaming, and evidence of the City’s purported need for regulation, has no tendency to prove or disprove any of these elements. The primary issue in this case — whether the City breached its contractual duty by failing to provide the annual “accountings” required by the 2009 Settlement — cannot be answered 10 through discussion of the facts underlying the adoption of Title 16, or Title 16’s requirements. 11 Likewise, neither the cardrooms’ compliance with Title 16, nor the reasonable suspicions they 12 are required to report, have any bearing on whether the City did what the plain language of the 13 2009 Settlement requires. 14 Il. Any Alleged Evidence of Criminal Activity At Bay 101 Would Be Unduly Prejudicial And Would Confuse the Issues of This Case. 15 Even if suspected criminal activity were somehow relevant to this lawsuit, the probative 16 value of such evidence would be substantially outweighed by the probability that its admission 17 would create substantial prejudice, confuse the issues, or mislead the jury. Evidence Code 18 section 352 provides that “[t]he court in its discretion may exclude evidence if its probative value 19 is substantially outweighed by the probability that its admission will (a) necessitate undue 20 consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, 21 or of misleading the jury.” (Evid. Code, § 352.) 22 The subject of criminal activity is particularly suited to evoke emotional bias. (See, e.g., 23 People v. Jefferson (2015) 238 Cal.App.4th 494, 507 [“evidence that Jefferson possessed 24 firearms on other occasions unduly prejudiced him. The prejudice referred to in Evidence Code 25 section 352 applies to evidence which uniquely tends to evoke an emotional bias against the 26 defendant[.]”] [internal quotations and citations omitted].) The City requires reporting of alleged 27 criminal activity that is reasonably suspected, regardless of whether the reported conduct actually 28 3 PLAINTIFF’S MOTION JN LIMINE 5 — MOTION TO EXCLUDE EVIDENCE OF ALLEGED CRIMINAL ACTIVITY; CASE NO. 1-14-CV-267311 (LEAD) results in an arrest or a conviction, and regardless of whether the allegations were heard and decided by a jury. (See SIMC, § 16.14.010.) Reasonable suspicion is a very low standard — more than a hunch but “obviously” less than probable cause. (See People v. Brown (2015) 61 Cal.4th 968, 981 [quoting United States v. Sokolow (1989) 490 U.S. 1, 7].) “Since ‘substantial prejudicial effect [is] inherent in [such] evidence,’ uncharged offenses are admissible only if they have substantial probative value.” (People v. Hendrix (2013) 214 Cal.App.4th 216, 244 [quoting People v. Ewoldt (1994) 7 Cal.4th 380, 404] [internal quotation marks omitted].) Here, it would be highly prejudicial and inflammatory to allow the City to refer to such activity as though crimes had actually occurred, or to insinuate that Bay 101 is somehow to blame. Moreover, it 10 would be unduly time consuming to sort out whether the reported activity did in fact amount to a 11 crime, or had any connection to gaming. (See Gouskos v. Aptos Village Garage, Inc. (2001) 94 12 Cal.App.4th 754, 762 [court rationally could have viewed evidence as unduly time consuming, 13 because facts had not been fleshed out in discovery].) Such low value and highly inflammatory 14 evidence should not be admitted. 15 CONCLUSION 16 For the reasons stated herein, this Court should exclude evidence of any alleged criminal 17 events, or related statistics, pursuant to Evidence Code sections 350 and 352. 18 19 Dated: November 21, 2018 McMANIS FAULKNER 20 21 R ATKINSON 22 Attorneys for Plaintiff, SUTTER’S PLACE, INC. dba BAY 101 23 24 25 26 27 28 4 PLAINTIFF’S MOTION JN LIMINE 5 - MOTION TO EXCLUDE EVIDENCE OF ALLEGED CRIMINAL ACTIVITY; CASE NO, 1I-14-CV-267311 (LEAD)