Preview
1 ARNOLD & PORTER KAYE SCHOLER LLP
JONATHAN W. HUGHES (Bar No. 186829)
2 Jonathan.Hughes@arnoldporter.com
ELECTRONICALLY
JEREMY T. KAMRAS (Bar No. 237377)
3 Jeremy.Kamras@arnoldporter.com F I L E D
Superior Court of California,
MARCIA VALENTE (Bar No. 321852) County of San Francisco
4 Marcia.Valente@arnoldporter.com
ANDREW HANNEMANN (Bar No. 322400) 06/26/2020
5 Andrew.Hannemann@arnoldporter.com Clerk of the Court
BY: RONNIE OTERO
Three Embarcadero Center, 10th Floor Deputy Clerk
6 San Francisco, CA 94111-4024
7 Attorneys for Defendant
RECOLOGY INC. (formerly Norcal Waste Systems, Inc.)
8 and RECOLOGY SAN FRANCISCO (formerly
SF Recycling & Disposal, Inc.)
9
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 COUNTY OF SAN FRANCISCO
12
13 BRIAN McVEIGH, Case No. CGC-09-491654
14 Plaintiff,
DEFENDANTS’ OPPOSITION TO
15 v. PLAINTIFF’S MOTIONS IN
LIMINE NOS. 1-3
16 SF RECYCLING & DISPOSAL, INC., NORCAL
WASTE SYSTEMS, INC., NORCAL WASTE Date: July 14, 2020
17 SERVICE CENTER, INC., SUNSET SCAVENGER Time: 10:00 a.m.
COMPANY, Dep’t: 502
18
Defendant. Action Filed: August 20, 2009
19 Judge: Honorable Jeffrey S. Ross
Trial Date: September 14, 2020
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DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1-3
1 TABLE OF CONTENTS
2 Page
3 I. INTRODUCTION ................................................................................................................... 1
4 II. OPPOSITION TO MOTION IN LIMINE NO. 1 .................................................................... 2
5 A. McVeigh’s Motion Is So Overbroad And Vague As To Preclude Review. ................ 2
6 B. The Evidence McVeigh Seeks To Exclude Is Relevant. ............................................. 3
7 C. The Evidence McVeigh Seeks To Exclude Is Not Unduly Prejudicial. ...................... 6
8 III. OPPOSITION TO MOTION IN LIMINE NO. 2 .................................................................... 7
9 IV. OPPOSITION TO MOTION IN LIMINE NO. 3 .................................................................... 9
10 V. CONCLUSION ...................................................................................................................... 11
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DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1-3
1 TABLE OF AUTHORITIES
2 Page(s)
3 Cases
4
Bihun v. AT&T Info. Sys.,
5 13 Cal. App. 4th 976 (1993) ......................................................................................................9
6 Boeken v. Philip Morris, Inc.,
127 Cal. App. 4th 1640 (2005) ..................................................................................................2
7
Campos v. Anderson,
8 57 Cal. App. 4th 784 (1997) ......................................................................................................8
9 Kelly v. New W. Fed. Savs.,
10 49 Cal. App. 4th 659 (1996) ..................................................................................................1, 2
11 McVeigh v. Recology San Francisco,
213 Cal. App. 4th 443 (2013) ............................................................................................1, 4, 6
12
People v. Doolin,
13 45 Cal. 4th 390 (2009) ...............................................................................................................7
14 People v. Jennings,
15 46 Cal. 3d 963 (1988) ........................................................................................................2, 8, 9
16 People v. Johnson,
185 Cal. App. 4th 520 (2010) ....................................................................................................6
17
People v. Morris,
18 53 Cal. 3d 152 (1991) ....................................................................................................1, 2, 8, 9
19 People v. Rucker,
126 Cal. App. 4th 1107 (2005) ..................................................................................................7
20
21 San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A.,
102 Cal. App. 4th 308 (2002) ....................................................................................................7
22
Statutes
23
Evid. Code
24 § 352...........................................................................................................................................7
§ 1101.........................................................................................................................................8
25 § 1101(a) ....................................................................................................................................8
26 § 1101(b) ....................................................................................................................................8
27
28
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DFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1-3
1 Defendants Recology Inc. and Recology San Francisco (collectively “Recology”)
2 respectfully submit this Opposition to Plaintiff Brian McVeigh’s (“McVeigh”) Motions in Limine
3 Nos. 1-3.
4 I. INTRODUCTION
5 McVeigh asks this Court to exclude broad swaths of evidence without in most cases
6 identifying specific objectionable documents or testimony, in all instances predicated on a flawed
7 view of what this case is about and, thus, what evidence is actually relevant. McVeigh’s motions in
8 limine are therefore both procedurally defective and substantively wrong.
9 Procedurally Defective. The categories of evidence McVeigh seeks to exclude are so vague
10 and overbroad as to preclude the Court’s review. Presumably recognizing this, McVeigh goes so far
11 as to give notice that he intends to submit on reply the evidence that he failed to include in his
12 opening papers, or in the weeks since.1 E.g., Plaintiff Brian McVeigh’s Preliminary Motions in
13 Limine (“Mot.”) at 11 (exhibit “will be submitted as an exhibit to David Anton’s Declaration to be
14 filed with the Reply”). This alone mandates the motions’ denial. Motions in limine must be directed
15 at identifiable documents or subjects of testimony. See Kelly v. New W. Fed. Savs., 49 Cal. App. 4th
16 659, 670-71 (1996) (motions in limine that do not specifically identify the evidence to be excluded
17 are “meaningless”); People v. Morris, 53 Cal. 3d 152, 189-90 (1991) (a motion in limine must be
18 directed to a “particular identifiable body of evidence”).
19 Substantively Wrong. McVeigh principally argues that the only evidence that is relevant is
20 “what McVeigh genuinely believed” with respect to any alleged fraud (Mot. at 4-5), and what his
21 supervisor Michael Crosetti knew about McVeigh and Recology’s operations at the time McVeigh’s
22 employment was terminated (Mot. at 14). McVeigh therefore ignores the legal elements that he
23 must prove, including that he engaged in “protected activity” by having “reasonably based
24 suspicions of a false claim” where it was “reasonably possible” for his investigation to lead to a false
25 claims action, and that Recology terminated his employment in substantial part because of such
26 activity. McVeigh v. Recology San Francisco, 213 Cal. App. 4th 443, 455-56 (2013) (emphases
27
1
28 McVeigh filed his Motions in Limine Nos. 1-3 on May 1, 2020, and he has had eight weeks since
then to provide any supplemental information.
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DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1-3
1 added). Recology’s actual operations and whether or not there actually was a fraud is directly
2 relevant to these inquiries. But McVeigh hopes to keep the jury ignorant of how Recology
3 actually conducts its operations and of the fact that, following both a state-led investigation and a
4 trial, Recology was twice found not to have engaged in exactly the fraud that McVeigh now
5 claims he was fired for having uncovered. McVeigh’s failure to address the legal elements of his
6 claim is compounded by McVeigh’s misstatement of what Crosetti actually knew and considered
7 and, more, who else at Recology participated in the decision to terminate McVeigh’s employment,
8 and therefore whose knowledge is relevant and the scope of that knowledge.
9 For all of these reasons, as set forth in further detail below, McVeigh’s motions in limine
10 should be denied entirely. To the extent McVeigh has any legitimate objections to specific pieces
11 of evidence, he should raise those objections in a more concrete context at trial so that the Court
12 can avoid considering and deciding these issues in a vacuum.
13 II. OPPOSITION TO MOTION IN LIMINE NO. 1
14 A. McVeigh’s Motion Is So Overbroad And Vague As To Preclude Review.
15 Motions in limine that are lacking in “factual support or argument” are not proper. Kelly,
16 49 Cal. App. 4th at 670; see also Morris, 53 Cal. 3d at 190 (motions in limine must be directed to
17 a “particular, identifiable body of evidence” and be “made at a time . . . when the judge can
18 determine the evidentiary question”). And for good reason: Without a specific articulation of the
19 evidence McVeigh seeks to exclude, the Court “cannot intelligently rule on admissibility” and
20 should reserve ruling until evidence is offered at trial. People v. Jennings, 46 Cal. 3d 963, 975 n.3
21 (1988) (appropriate to reserve ruling on admissibility until evidence actually offered at trial);
22 Boeken v. Philip Morris, Inc., 127 Cal. App. 4th 1640, 1675 (2005) (“A motion in limine to
23 exclude evidence is not a sufficient objection unless it was directed to a particular, identifiable
24 body of evidence and was made at a time when the trial court could determine the evidentiary
25 question in its appropriate context.”).
26 The Court should deny McVeigh’s Motion in Limine No. 1 on this basis alone and, if
27 necessary, resolve any objections to the admissibility of testimony or exhibits during trial.
28
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DFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1-3
1 False Claims Trial. McVeigh moves to preclude Recology from introducing “[a]ny . . .
2 evidence related to or arising out of [post-termination] litigation,” that is, the False Claims Act
3 trial. Mot. at 6 (emphasis added). McVeigh states that this exclusion applies broadly to “what
4 witnesses testified to” and “what documents were used in the trial.” Mot. at 6. But without
5 specific examples of evidence McVeigh seek to exclude (e.g., reference to specific witnesses,
6 specific testimony and specific documents), it is impossible to know what evidence he is seeking
7 to exclude, whether the evidence is also relevant to the employment retrial, or whether it would
8 confuse or mislead the jury.
9 Other Evidence Disproving Fraud. McVeigh also seeks to exclude all other evidence of
10 whether any fraud actually occurred, specifically “post-termination investigations, audits, [and]
11 expert analysis of possible false claims.” Mot. at 4. In each case, he sweeps with a broad brush.
12 Thus, he seeks to exclude all evidence relating to CalRecycle’s investigation of alleged fraudulent
13 activity at Recology’s Bayshore BuyBack Center. But other than one reference to Recology’s
14 designation of testimony by CalRecycle investigator Victor Lum (Mot. at 7), he does not
15 otherwise identify the specific testimony or documents he seeks to exclude. McVeigh seeks to
16 exclude “information about Recology’s business practices [allegedly] unknown to the parties
17 involved in this case.” Mot. at 7. But apart from Ken Stewart and Crosetti, he fails to identify the
18 supervisors and managers whose testimony he seeks to exclude. Last, McVeigh seeks to exclude
19 “testimony from all witnesses as to whether false BuyBack Center weight tickets did or did not
20 result in False Claims by Recology to the State, and any reference by counsel that these records
21 did not result in false claims to the State.” Id. at 9 (emphases added). But, true to form, McVeigh
22 does not identify what evidence he seeks to exclude as improper testimony relating to false claims.
23 B. The Evidence McVeigh Seeks To Exclude Is Relevant.
24 To the extent the categories of evidence McVeigh seeks to exclude can be discerned, each
25 is relevant, including with respect to whether McVeigh’s suspicions of a false claim were
26 reasonable, whether he was investigating matters that reasonably could lead to a viable false
27 claims action, and whether any of this was a substantial motivating factor in Recology’s decision
28 to terminate his employment.
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DFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1-3
1 False Claims Trial. McVeigh argues that evidence related to or arising out of post-
2 termination litigation is irrelevant. According to McVeigh, “[o]nly the simple fact that [he] filed a
3 False Claims Act case that included allegations that Recology submitted false claims to the State
4 of California based on allegedly false CRV weight records is relevant.” Mot. at 6. This argument
5 rather conveniently allows McVeigh to introduce the filing of the False Claims Act case without
6 disclosing to the jury its resolution in Recology’s favor, and is therefore highly prejudicial to
7 Recology. See Recology Motion in Limine No. 2.
8 More, McVeigh is mistaken. In order to establish a prima facie retaliation case under the
9 California False Claims Act (“CFCA”), McVeigh must show: “(1) that he [] engaged in activity
10 protected under the statute; (2) that [Recology] knew [he] engaged in protected activity; and (3)
11 that [Recology] discriminated against [him] because he [] engaged in protected activity.”
12 McVeigh v. Recology San Francisco, 213 Cal. App. 4th 443, 455-56 (2013) (internal citations and
13 quotations omitted). “[T]o engage in protected conduct, the employee must have reasonably
14 based suspicions of a false claim and it must be reasonably possible for the employee’s conduct
15 to lead to a false claims action.” Id. at 463 (internal citations and quotations omitted; emphases
16 added). McVeigh cannot establish that he engaged in protected activity under the CFCA if there
17 is no reasonable possibility that his False Claims Act action was viable. Nor can he prevail if
18 Recology is able to demonstrate that it was not apprehensive about any such claim, and therefore
19 had no ulterior purpose in severing McVeigh’s employment. The final disposition of the False
20 Claims Act lawsuit in Recology’s favor is not dispositive on these points, but certainly is relevant.
21 McVeigh cannot conceal the full history of this case under the guise of seeking to exclude
22 “prejudicial” references to the False Claims Act litigation.
23 To exclude references to the truth (e.g., that the jury found that these CRV claims to be
24 meritless) would, rather, prejudice Recology. A key theme by McVeigh in the first trial in this
25 matter was that Recology had violated “the public trust” and that McVeigh had heroically
26 safeguarded that trust. See, e.g., Declaration of Jonathan W. Hughes in Support of Defendants’
27 Opposition to Plaintiff’s Motions in Limine Nos. 1-3 (“Hughes Decl.”), Ex. A (Employment Trial
28 Tr., May 26, 2015, Vol. 16) at 2878:7-8 (“This case is about a betrayal of the public trust”),
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DFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1-3
1 2903:21-22 (“[I]f he was fearing retaliation, why do this? He thought he was going to be a hero.”).
2 But in fact, Recology was found not to have violated “the public trust,” and the jury is entitled to
3 know that.
4 Other Evidence Disproving Fraud.
5 CalRecycle Investigations. Following McVeigh’s termination, the California
6 agency responsible for oversight of recycling and redemption programs, CalRecycle, audited
7 Recology’s BuyBack Centers based on a tip from McVeigh. After two years, CalRecycle
8 identified minor recordkeeping and reporting violations but found no evidence of fraudulent
9 activity. See, e.g., Hughes Decl. Ex. B (False Claims Act Trial Tr., June 2, 2014) at 88:19-25,
10 91:1-13. McVeigh seeks to exclude this evidence, including the testimony of CalRecycle’s lead
11 investigator Victor Lum. Mot. at 6-7. Again, this evidence is directly relevant. This action
12 involves the same underlying allegations of CRV fraud that CalRecycle investigated. McVeigh
13 contends that Recology wrongfully terminated him in retaliation for investigating and complaining
14 about CRV claims at the Bayshore Buyback Center—the same CRV claims that CalRecycle
15 investigated for nearly two years. Recology is entitled to inform the jury that CalRecycle
16 determined that there was no evidence of fraudulent activity at this recycling center because such
17 evidence tends to disprove McVeigh’s theory that Recology retaliated against him for uncovering
18 its supposed fraud. Furthermore, this evidence poses no risk of undue consumption of time. At
19 present, Recology has designated less than 15 minutes of Mr. Lum’s trial testimony to be read
20 aloud to the jury.
21 Recology’s Business Practices. McVeigh also contends that “[e]vidence and
22 testimony from Recology managers as to what they have learned in the 12 years since firing Mr.
23 McVeigh about the accounting and billing of CRV material to the State is not relevant to this
24 suit.” Mot. at 7. McVeigh alleges that “[i]t is undisputed that whatever information these
25 individuals had or have learned since Mr. McVeigh’s termination was never shared with Mr.
26 McVeigh or his supervisors.” Id. at 8. It is irrelevant, however, whether Recology managers
27 shared their knowledge of billing practices with McVeigh or his supervisors. First, in evaluating
28 McVeigh’s claims, the jury will need to understand Recology’s actual business practices; without
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DFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1-3
1 that context, the jury will be lost, trying to understand facts about an industry with which it has no
2 familiarity. Second, the facts about how Recology in fact received, paid for, accounted for and
3 sold CRV materials is relevant to assessing whether McVeigh was investigating matters that
4 reasonably could lead to a viable false claims case; and whether McVeigh should have known that
5 he needed to conduct further investigation before he could reasonably substantiate his speculation.
6 See McVeigh, 213 Cal. App. 4th at 463 (“[T]he employee must have reasonably based suspicions
7 of a false claim and it must be reasonably possible for the employee’s conduct to lead to a false
8 claims action.”). Third, it is also relevant to whether Recology therefore would have had concern
9 about McVeigh’s claims sufficient to motivate it to terminate his employment.
10 Expert Analysis. McVeigh also improperly seeks to exclude opinion testimony
11 from Recology’s two experts, William Brause and Andrew Tseng. Mot. at 9. These experts
12 previously testified that Recology’s accounting system did not result in false claims to the State.
13 Brause concluded that Recology was not overreporting CRV material and used “a thought-out
14 methodology for adjusting for any issues.” Hughes Decl. Ex. B (False Claims Act Trial Tr., June
15 2, 2014) at 206:4-207:25. Tseng observed that Recology’s system is “actually very conservative,”
16 and that the State had found merely “very common reporting errors,” which were “not really
17 fraud.” Id., Ex. C (False Claims Act Trial Tr., June 3, 2014) at 159:3-160:25. This evidence is
18 relevant for the same reasons as stated above.
19 C. The Evidence McVeigh Seeks To Exclude Is Not Unduly Prejudicial.
20 The arguments set forth in McVeigh’s Motion in Limine No. 1 lay bare the clear intent
21 behind his effort to exclude clearly relevant evidence: to avoid the harm to his case that will occur
22 when the jury hears it. The four specific requests go, in essence, to whether McVeigh had
23 reasonably based suspicions of a false claim, whether it was reasonably possible for his conduct to
24 lead to a false claims action, and whether his investigation and complaints were a substantial
25 motivating reason for his employment termination.
26 McVeigh claims the evidence would be “prejudicial,” but “[t]he word ‘prejudicial’ is not
27 synonymous with ‘damaging.’” People v. Johnson, 185 Cal. App. 4th 520, 534 (2010). Such
28 evidence is certainly a problem for McVeigh for all of the reasons stated above—but harm to a
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DFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1-3
1 litigant’s meritless claim is not the sort of “unfair prejudice” that Evidence Code 352 seeks to
2 exclude. People v. Rucker, 126 Cal. App. 4th 1107, 1119 (2005) (“‘prejudicial’ is not
3 synonymous with ‘damaging’”); People v. Doolin, 45 Cal. 4th 390, 439 (2009) (evidence is not
4 prejudicial merely because it undermines the opponent's position or shores up that of the
5 proponent). McVeigh’s failure to substantiate any prejudice that might result from the
6 introduction of this evidence, let alone undue prejudice that substantially outweighs the
7 (significant) probative value it will have, is fatal to his motion.
8 The Court should deny McVeigh’s Motion in Limine No. 1 to exclude “any” evidence
9 relating to the False Claims Act litigation, post-termination investigations, audits, or expert
10 analysis of false claims.
11 III. OPPOSITION TO MOTION IN LIMINE NO. 2
12 In his second motion in limine, McVeigh improperly seeks a wholesale exclusion of “all
13 character evidence . . . unless there has been an offer of proof to demonstrate that the character
14 evidence is admissible.” Mot. at 10.
15 The rules of evidence already provide for when character evidence is admissible. There is
16 no basis to change the rules of evidence for this trial. Further, the Court should deny McVeigh’s
17 motion because, again, it fails to provide the specificity required in a motion in limine, here, going
18 so far as to seek to submit new evidence with reply papers that, for neither stated nor good reason,
19 he chose not to include with his motion papers. See, e.g., Mot. at 11 (exhibit “will be submitted as
20 an exhibit to David Anton’s Declaration to be filed with the Reply”). The Court should not
21 countenance such disregard for process. San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A.,
22 102 Cal. App. 4th 308, 310 (2002) (“revers[ing] a summary judgment because the trial court erred
23 in considering evidence first submitted with the reply”). Considering evidence “not filed until
24 after [respondent] had responded to the issues raised” in a motion “violate[s] [respondent’s] due
25 process rights. [Respondent] was not informed what issues it was to meet in order to oppose the
26 motion.” Id. at 316. “Points raised in the reply brief for the first time will not be considered,
27 unless good reason is shown for failure to present them before. To withhold a point until the
28 closing brief deprives the respondent of the opportunity to answer it or requires the effort and
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DFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1-3
1 delay of an additional brief by permission.” Campos v. Anderson, 57 Cal. App. 4th 784, 794 n.3
2 (1997).
3 Underscoring the abstractness of his motion, apart from Ms. Ramirez (addressed below),
4 McVeigh does not identify any specific witness whose testimony would relate to character
5 evidence. Rather, McVeigh states that “[b]ased on the list of witnesses identified by Recology,
6 many of them who were not deposed and/or did not testify in the first trial, [he] believes the only
7 testimony they could offer would relate to character evidence, e.g., prior bad acts.” Mot. at 10. In
8 other words, McVeigh is engaging in rank conjecture and asking the Court to do the same. It
9 should decline the invitation. See Morris, supra; Jennings, supra (motions in limine must be
10 aimed at a specific, identified body of evidence).
11 McVeigh’s more specific request that the Court exclude evidence concerning Ms. Ramirez
12 must also be denied. McVeigh argues that Recology relied on such evidence to give the
13 impression that “McVeigh had been found to have engaged in sexual harassment.” Mot. at 11.
14 This is false. Rather, Recology made statements and asked witnesses questions about McVeigh’s
15 “unprofessional conduct” towards Ms. Ramirez, as investigated and verified by Human Resources,
16 that resulted in McVeigh’s performance improvement plan. See, e.g., Hughes Decl. Ex. D
17 (Employment Trial Tr., April 28, 2015, Vol. 3) at 367:5-13. There is no support for McVeigh’s
18 allegation of an “unfounded character evidence attack” (Mot. at 11) by Recology, because there
19 never was one. Instead, evidence of McVeigh’s unprofessional conduct towards Ms. Ramirez is
20 admissible to show that as a result of McVeigh’s unprofessional conduct as a supervisor, he
21 received below-average scores on performance reviews and was the subject of an unprecedented
22 number of union complaints, resulting in his employment termination.
23 Such evidence is both relevant and admissible. While Evidence Code Section 1101(a)
24 forbids admission of evidence of a person’s character to prove his conduct on a specified occasion,
25 it nevertheless provides that such evidence may be admissible for another purpose, specifically,
26 “when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan,
27 knowledge, identity, absence of mistake or accident.” Evid. Code § 1101(b). The admissibility or
28 limitation of evidence offered under Evidence Code Section 1101 relating to other acts depends on
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DFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1-3
1 the evidentiary context in which it is offered. In cases where “motive matters” (e.g., wrongful
2 termination cases), plaintiff’s prior bad acts are admissible. See Bihun v. AT&T Info. Sys., 13 Cal.
3 App. 4th 976, 991 (1993) (“[E]vidence of reputation is admissible to prove a person’s character or
4 character trait when character or trait of character is an ultimate fact in dispute in the action.”).
5 If, upon any attempt by Recology to introduce particular character evidence at trial,
6 McVeigh believes he can establish a reason for its exclusion, he should object and raise it with the
7 Court at that time. 2 On its face, however, McVeigh’s Motion in Limine No. 2 should be denied
8 because it does not identify particular evidence for which exclusion is sought, and to the extent it
9 does, the evidence is relevant for permissible purposes.
10 IV. OPPOSITION TO MOTION IN LIMINE NO. 3
11 In his third motion in limine, McVeigh asks the Court to exclude evidence relating to
12 McVeigh’s job performance and other evidence allegedly not known or relied upon by Crosetti
13 when he participated in the decision to terminate McVeigh’s employment. Mot. at 11.
14 As is the case with McVeigh’s other motions in limine, the request to exclude
15 “[i]nformation that was unknown and not considered by Mr. Crosetti in his decision to terminate
16 Mr. McVeigh’s employment” (Mot. at 11-12), should be denied because it is devoid of any
17 citation to specific evidence or testimony. McVeigh fails to identify any specific evidence, and
18 instead provides the Court five examples of the “type of testimony and evidence [he] anticipates
19 will be offered by Recology.” Id. at 14 (emphasis added). In doing so, McVeigh improperly calls
20 for the Court and Recology to speculate what evidence he seeks to exclude. The Court should
21 deny McVeigh’s request on this basis alone and resolve any objections to the admissibility of
22 testimony or exhibits during the trial. See Morris, supra; Jennings, supra (motions in limine must
23 be aimed at a specific, identified body of evidence).
24 But equally important, McVeigh’s motion is predicated on mischaracterizing past
25 statements made by Crosetti. McVeigh falsely contends that the following exemplar testimony
26 should be excluded because Crosetti did not rely upon or consider any of it when he made the
27
2
28 McVeigh also obliquely makes reference to evidence regarding “psychological tests.” Mot. at
10. McVeigh does not specify what he is referring to, again precluding reply.
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DFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1-3
1 decision to terminate McVeigh’s employment (Mot. at 14): (a) testimony of Ms. Ramirez
2 regarding her interactions with McVeigh at Tunnel Bayshore in 2006; (b) Ronald Walton’s
3 observations and opinions regarding McVeigh’s work performance at Sunset Scavenger in 2003
4 and 2004; (c) John Jurinek’s observations and opinions regarding McVeigh’s work performance at
5 Pier 96 in 2004 and 2005; (d) information regarding Deborah Savage and her interactions with
6 McVeigh at Tunnel Bayshore in 2007 and 2008; (e) union employee grievances filed involving
7 McVeigh’s supervision at Pier 96 in 2004 and 2005. Mot. at 12-13.
8 Contrary to McVeigh’s assertion, however, Crosetti’s trial testimony indicates that he did
9 know and did consider McVeigh’s entire employment history when he made the decision to
10 terminate McVeigh’s employment, including when McVeigh was a supervisor at Pier 96 as well
11 as his later positions at Tunnel Bayshore. For example, when asked at trial why he made the
12 decision to terminate McVeigh’s employment, Crosetti testified that
13 From the beginning, from the time that Brian came to [Recology], and
went to the Pier, Recycle Central, spent some months there, all that
14
time at the Pier, John Jurinek, the plant manager at the Pier, called me
15 and said, “We have to get Brian out of here. He’s stirring up all kinds
of problems with the employees, grievances, he doesn’t get along with
16 the other supervisors.”
17 Hughes Decl. Ex. E (McVeigh Employment Trial Tr., May 1, 2015, Vol. 6) at 946:22-947:4. See
18 also id. at 962:2-9 (Before terminating McVeigh’s employment, Crosetti spoke with John Lignetto
19 who informed Crosetti “that [McVeigh] had not done well at Sunset Scavenger, either, and that
20 [McVeigh] had been a problem.”); id. at 1010:19-24 (McVeigh “had a number of jobs, starting
21 with the Sunset job as a safety person, a supervisor at Sunset, supervisor at the Pier, a couple of
22 different supervisor positions at Tunnel, and apparently in all those situations he wore out his
23 welcome and he had more chances than most.”).
24 Lastly, Crosetti was not the only person involved in the decision to terminate McVeigh’s
25 employment. See, e.g., Hughes Decl. Ex. E at 961:9-15 (Lignetto would have to approve
26 Crosetti’s decision to terminate McVeigh’s employment “before anything could happen”).
27 Recology’s Human Resources department, which regulates all employment decisions, approved
28 McVeigh’s termination based on, among other information, reports gathered from McVeigh’s
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DFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1-3
1 various supervisors over the years. Id. at 1016:9-1017:5 (Recology’s Human Resources
2 department regulated and supervised all procedures and documentation relating to McVeigh’s
3 termination); id. at 963:22-964:8 (Kathy Jamison, from Recology’s Human Resources department,
4 was involved in the decision to terminate McVeigh’s termination and reviewed the investigation
5 findings of David Jackson with Lignetto and Crosetti). And therefore, the fact that Crosetti may
6 not himself have been aware of certain information does not render the information irrelevant.
7 McVeigh himself acknowledges that “Crosetti identified three persons involved in the process that
8 resulted in his decision to terminate Mr. McVeigh: Kathy Jamison (Recology’s HR Manager),
9 David Jackson and attorney Depanita (sic) Amar.” Mot. at 3. All of these individuals’ testimony
10 about McVeigh’s employment history and performance is relevant to the jury’s assessment of
11 whether Recology terminated McVeigh for his poor job performance, rather than in response to
12 his investigation and complaints. While McVeigh may not wish for the jury to hear about his job
13 performance issues, it cannot be excluded on that basis.
14 The Court should deny McVeigh’s Motion in Limine No. 3 because it fails to identify any
15 specific evidence he seeks to exclude and instead improperly seeks a wholesale exclusion of
16 testimony and evidence. McVeigh’s failure to substantiate any prejudice that might result from
17 the introduction of this evidence, let alone undue prejudice that substantially outweighs the
18 (significant) probative value it will have, is fatal to his motion. It should be denied.
19 V. CONCLUSION
20 Recology respectfully requests that the Court enter an Order denying McVeigh’s
21 Motions in Limine Nos. 1-3 in their entirety.
22 Dated: June 26, 2020 ARNOLD & PORTER KAYE SCHOLER LLP
23
By: /s/ Jonathan W. Hughes
24 JONATHAN W. HUGHES
25 Attorneys for Defendant
RECOLOGY INC. (formerly Norcal Waste
26 Systems, Inc.) and RECOLOGY SAN
FRANCISCO (formerly SF Recycling and
27 Disposal, Inc.)
28
- 11 -
US 167786047
DFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1-3
Preview
1 ARNOLD & PORTER KAYE SCHOLER LLP JONATHAN W. HUGHES (Bar No. 186829) 2 Jonathan.Hughes@arnoldporter.com ELECTRONICALLY JEREMY T. KAMRAS (Bar No. 237377) 3 Jeremy.Kamras@arnoldporter.com F I L E D Superior Court of California, MARCIA VALENTE (Bar No. 321852) County of San Francisco 4 Marcia.Valente@arnoldporter.com ANDREW HANNEMANN (Bar No. 322400) 06/26/2020 5 Andrew.Hannemann@arnoldporter.com Clerk of the Court BY: RONNIE OTERO Three Embarcadero Center, 10th Floor Deputy Clerk 6 San Francisco, CA 94111-4024 7 Attorneys for Defendant RECOLOGY INC. (formerly Norcal Waste Systems, Inc.) 8 and RECOLOGY SAN FRANCISCO (formerly SF Recycling & Disposal, Inc.) 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF SAN FRANCISCO 12 13 BRIAN McVEIGH, Case No. CGC-09-491654 14 Plaintiff, DEFENDANTS’ OPPOSITION TO 15 v. PLAINTIFF’S MOTIONS IN LIMINE NOS. 1-3 16 SF RECYCLING & DISPOSAL, INC., NORCAL WASTE SYSTEMS, INC., NORCAL WASTE Date: July 14, 2020 17 SERVICE CENTER, INC., SUNSET SCAVENGER Time: 10:00 a.m. COMPANY, Dep’t: 502 18 Defendant. Action Filed: August 20, 2009 19 Judge: Honorable Jeffrey S. Ross Trial Date: September 14, 2020 20 21 22 23 24 25 26 27 28 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1-3 1 TABLE OF CONTENTS 2 Page 3 I. INTRODUCTION ................................................................................................................... 1 4 II. OPPOSITION TO MOTION IN LIMINE NO. 1 .................................................................... 2 5 A. McVeigh’s Motion Is So Overbroad And Vague As To Preclude Review. ................ 2 6 B. The Evidence McVeigh Seeks To Exclude Is Relevant. ............................................. 3 7 C. The Evidence McVeigh Seeks To Exclude Is Not Unduly Prejudicial. ...................... 6 8 III. OPPOSITION TO MOTION IN LIMINE NO. 2 .................................................................... 7 9 IV. OPPOSITION TO MOTION IN LIMINE NO. 3 .................................................................... 9 10 V. CONCLUSION ...................................................................................................................... 11 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -i- DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1-3 1 TABLE OF AUTHORITIES 2 Page(s) 3 Cases 4 Bihun v. AT&T Info. Sys., 5 13 Cal. App. 4th 976 (1993) ......................................................................................................9 6 Boeken v. Philip Morris, Inc., 127 Cal. App. 4th 1640 (2005) ..................................................................................................2 7 Campos v. Anderson, 8 57 Cal. App. 4th 784 (1997) ......................................................................................................8 9 Kelly v. New W. Fed. Savs., 10 49 Cal. App. 4th 659 (1996) ..................................................................................................1, 2 11 McVeigh v. Recology San Francisco, 213 Cal. App. 4th 443 (2013) ............................................................................................1, 4, 6 12 People v. Doolin, 13 45 Cal. 4th 390 (2009) ...............................................................................................................7 14 People v. Jennings, 15 46 Cal. 3d 963 (1988) ........................................................................................................2, 8, 9 16 People v. Johnson, 185 Cal. App. 4th 520 (2010) ....................................................................................................6 17 People v. Morris, 18 53 Cal. 3d 152 (1991) ....................................................................................................1, 2, 8, 9 19 People v. Rucker, 126 Cal. App. 4th 1107 (2005) ..................................................................................................7 20 21 San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A., 102 Cal. App. 4th 308 (2002) ....................................................................................................7 22 Statutes 23 Evid. Code 24 § 352...........................................................................................................................................7 § 1101.........................................................................................................................................8 25 § 1101(a) ....................................................................................................................................8 26 § 1101(b) ....................................................................................................................................8 27 28 - ii - DFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1-3 1 Defendants Recology Inc. and Recology San Francisco (collectively “Recology”) 2 respectfully submit this Opposition to Plaintiff Brian McVeigh’s (“McVeigh”) Motions in Limine 3 Nos. 1-3. 4 I. INTRODUCTION 5 McVeigh asks this Court to exclude broad swaths of evidence without in most cases 6 identifying specific objectionable documents or testimony, in all instances predicated on a flawed 7 view of what this case is about and, thus, what evidence is actually relevant. McVeigh’s motions in 8 limine are therefore both procedurally defective and substantively wrong. 9 Procedurally Defective. The categories of evidence McVeigh seeks to exclude are so vague 10 and overbroad as to preclude the Court’s review. Presumably recognizing this, McVeigh goes so far 11 as to give notice that he intends to submit on reply the evidence that he failed to include in his 12 opening papers, or in the weeks since.1 E.g., Plaintiff Brian McVeigh’s Preliminary Motions in 13 Limine (“Mot.”) at 11 (exhibit “will be submitted as an exhibit to David Anton’s Declaration to be 14 filed with the Reply”). This alone mandates the motions’ denial. Motions in limine must be directed 15 at identifiable documents or subjects of testimony. See Kelly v. New W. Fed. Savs., 49 Cal. App. 4th 16 659, 670-71 (1996) (motions in limine that do not specifically identify the evidence to be excluded 17 are “meaningless”); People v. Morris, 53 Cal. 3d 152, 189-90 (1991) (a motion in limine must be 18 directed to a “particular identifiable body of evidence”). 19 Substantively Wrong. McVeigh principally argues that the only evidence that is relevant is 20 “what McVeigh genuinely believed” with respect to any alleged fraud (Mot. at 4-5), and what his 21 supervisor Michael Crosetti knew about McVeigh and Recology’s operations at the time McVeigh’s 22 employment was terminated (Mot. at 14). McVeigh therefore ignores the legal elements that he 23 must prove, including that he engaged in “protected activity” by having “reasonably based 24 suspicions of a false claim” where it was “reasonably possible” for his investigation to lead to a false 25 claims action, and that Recology terminated his employment in substantial part because of such 26 activity. McVeigh v. Recology San Francisco, 213 Cal. App. 4th 443, 455-56 (2013) (emphases 27 1 28 McVeigh filed his Motions in Limine Nos. 1-3 on May 1, 2020, and he has had eight weeks since then to provide any supplemental information. -1- DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1-3 1 added). Recology’s actual operations and whether or not there actually was a fraud is directly 2 relevant to these inquiries. But McVeigh hopes to keep the jury ignorant of how Recology 3 actually conducts its operations and of the fact that, following both a state-led investigation and a 4 trial, Recology was twice found not to have engaged in exactly the fraud that McVeigh now 5 claims he was fired for having uncovered. McVeigh’s failure to address the legal elements of his 6 claim is compounded by McVeigh’s misstatement of what Crosetti actually knew and considered 7 and, more, who else at Recology participated in the decision to terminate McVeigh’s employment, 8 and therefore whose knowledge is relevant and the scope of that knowledge. 9 For all of these reasons, as set forth in further detail below, McVeigh’s motions in limine 10 should be denied entirely. To the extent McVeigh has any legitimate objections to specific pieces 11 of evidence, he should raise those objections in a more concrete context at trial so that the Court 12 can avoid considering and deciding these issues in a vacuum. 13 II. OPPOSITION TO MOTION IN LIMINE NO. 1 14 A. McVeigh’s Motion Is So Overbroad And Vague As To Preclude Review. 15 Motions in limine that are lacking in “factual support or argument” are not proper. Kelly, 16 49 Cal. App. 4th at 670; see also Morris, 53 Cal. 3d at 190 (motions in limine must be directed to 17 a “particular, identifiable body of evidence” and be “made at a time . . . when the judge can 18 determine the evidentiary question”). And for good reason: Without a specific articulation of the 19 evidence McVeigh seeks to exclude, the Court “cannot intelligently rule on admissibility” and 20 should reserve ruling until evidence is offered at trial. People v. Jennings, 46 Cal. 3d 963, 975 n.3 21 (1988) (appropriate to reserve ruling on admissibility until evidence actually offered at trial); 22 Boeken v. Philip Morris, Inc., 127 Cal. App. 4th 1640, 1675 (2005) (“A motion in limine to 23 exclude evidence is not a sufficient objection unless it was directed to a particular, identifiable 24 body of evidence and was made at a time when the trial court could determine the evidentiary 25 question in its appropriate context.”). 26 The Court should deny McVeigh’s Motion in Limine No. 1 on this basis alone and, if 27 necessary, resolve any objections to the admissibility of testimony or exhibits during trial. 28 -2- DFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1-3 1 False Claims Trial. McVeigh moves to preclude Recology from introducing “[a]ny . . . 2 evidence related to or arising out of [post-termination] litigation,” that is, the False Claims Act 3 trial. Mot. at 6 (emphasis added). McVeigh states that this exclusion applies broadly to “what 4 witnesses testified to” and “what documents were used in the trial.” Mot. at 6. But without 5 specific examples of evidence McVeigh seek to exclude (e.g., reference to specific witnesses, 6 specific testimony and specific documents), it is impossible to know what evidence he is seeking 7 to exclude, whether the evidence is also relevant to the employment retrial, or whether it would 8 confuse or mislead the jury. 9 Other Evidence Disproving Fraud. McVeigh also seeks to exclude all other evidence of 10 whether any fraud actually occurred, specifically “post-termination investigations, audits, [and] 11 expert analysis of possible false claims.” Mot. at 4. In each case, he sweeps with a broad brush. 12 Thus, he seeks to exclude all evidence relating to CalRecycle’s investigation of alleged fraudulent 13 activity at Recology’s Bayshore BuyBack Center. But other than one reference to Recology’s 14 designation of testimony by CalRecycle investigator Victor Lum (Mot. at 7), he does not 15 otherwise identify the specific testimony or documents he seeks to exclude. McVeigh seeks to 16 exclude “information about Recology’s business practices [allegedly] unknown to the parties 17 involved in this case.” Mot. at 7. But apart from Ken Stewart and Crosetti, he fails to identify the 18 supervisors and managers whose testimony he seeks to exclude. Last, McVeigh seeks to exclude 19 “testimony from all witnesses as to whether false BuyBack Center weight tickets did or did not 20 result in False Claims by Recology to the State, and any reference by counsel that these records 21 did not result in false claims to the State.” Id. at 9 (emphases added). But, true to form, McVeigh 22 does not identify what evidence he seeks to exclude as improper testimony relating to false claims. 23 B. The Evidence McVeigh Seeks To Exclude Is Relevant. 24 To the extent the categories of evidence McVeigh seeks to exclude can be discerned, each 25 is relevant, including with respect to whether McVeigh’s suspicions of a false claim were 26 reasonable, whether he was investigating matters that reasonably could lead to a viable false 27 claims action, and whether any of this was a substantial motivating factor in Recology’s decision 28 to terminate his employment. -3- DFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1-3 1 False Claims Trial. McVeigh argues that evidence related to or arising out of post- 2 termination litigation is irrelevant. According to McVeigh, “[o]nly the simple fact that [he] filed a 3 False Claims Act case that included allegations that Recology submitted false claims to the State 4 of California based on allegedly false CRV weight records is relevant.” Mot. at 6. This argument 5 rather conveniently allows McVeigh to introduce the filing of the False Claims Act case without 6 disclosing to the jury its resolution in Recology’s favor, and is therefore highly prejudicial to 7 Recology. See Recology Motion in Limine No. 2. 8 More, McVeigh is mistaken. In order to establish a prima facie retaliation case under the 9 California False Claims Act (“CFCA”), McVeigh must show: “(1) that he [] engaged in activity 10 protected under the statute; (2) that [Recology] knew [he] engaged in protected activity; and (3) 11 that [Recology] discriminated against [him] because he [] engaged in protected activity.” 12 McVeigh v. Recology San Francisco, 213 Cal. App. 4th 443, 455-56 (2013) (internal citations and 13 quotations omitted). “[T]o engage in protected conduct, the employee must have reasonably 14 based suspicions of a false claim and it must be reasonably possible for the employee’s conduct 15 to lead to a false claims action.” Id. at 463 (internal citations and quotations omitted; emphases 16 added). McVeigh cannot establish that he engaged in protected activity under the CFCA if there 17 is no reasonable possibility that his False Claims Act action was viable. Nor can he prevail if 18 Recology is able to demonstrate that it was not apprehensive about any such claim, and therefore 19 had no ulterior purpose in severing McVeigh’s employment. The final disposition of the False 20 Claims Act lawsuit in Recology’s favor is not dispositive on these points, but certainly is relevant. 21 McVeigh cannot conceal the full history of this case under the guise of seeking to exclude 22 “prejudicial” references to the False Claims Act litigation. 23 To exclude references to the truth (e.g., that the jury found that these CRV claims to be 24 meritless) would, rather, prejudice Recology. A key theme by McVeigh in the first trial in this 25 matter was that Recology had violated “the public trust” and that McVeigh had heroically 26 safeguarded that trust. See, e.g., Declaration of Jonathan W. Hughes in Support of Defendants’ 27 Opposition to Plaintiff’s Motions in Limine Nos. 1-3 (“Hughes Decl.”), Ex. A (Employment Trial 28 Tr., May 26, 2015, Vol. 16) at 2878:7-8 (“This case is about a betrayal of the public trust”), -4- DFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1-3 1 2903:21-22 (“[I]f he was fearing retaliation, why do this? He thought he was going to be a hero.”). 2 But in fact, Recology was found not to have violated “the public trust,” and the jury is entitled to 3 know that. 4 Other Evidence Disproving Fraud. 5 CalRecycle Investigations. Following McVeigh’s termination, the California 6 agency responsible for oversight of recycling and redemption programs, CalRecycle, audited 7 Recology’s BuyBack Centers based on a tip from McVeigh. After two years, CalRecycle 8 identified minor recordkeeping and reporting violations but found no evidence of fraudulent 9 activity. See, e.g., Hughes Decl. Ex. B (False Claims Act Trial Tr., June 2, 2014) at 88:19-25, 10 91:1-13. McVeigh seeks to exclude this evidence, including the testimony of CalRecycle’s lead 11 investigator Victor Lum. Mot. at 6-7. Again, this evidence is directly relevant. This action 12 involves the same underlying allegations of CRV fraud that CalRecycle investigated. McVeigh 13 contends that Recology wrongfully terminated him in retaliation for investigating and complaining 14 about CRV claims at the Bayshore Buyback Center—the same CRV claims that CalRecycle 15 investigated for nearly two years. Recology is entitled to inform the jury that CalRecycle 16 determined that there was no evidence of fraudulent activity at this recycling center because such 17 evidence tends to disprove McVeigh’s theory that Recology retaliated against him for uncovering 18 its supposed fraud. Furthermore, this evidence poses no risk of undue consumption of time. At 19 present, Recology has designated less than 15 minutes of Mr. Lum’s trial testimony to be read 20 aloud to the jury. 21 Recology’s Business Practices. McVeigh also contends that “[e]vidence and 22 testimony from Recology managers as to what they have learned in the 12 years since firing Mr. 23 McVeigh about the accounting and billing of CRV material to the State is not relevant to this 24 suit.” Mot. at 7. McVeigh alleges that “[i]t is undisputed that whatever information these 25 individuals had or have learned since Mr. McVeigh’s termination was never shared with Mr. 26 McVeigh or his supervisors.” Id. at 8. It is irrelevant, however, whether Recology managers 27 shared their knowledge of billing practices with McVeigh or his supervisors. First, in evaluating 28 McVeigh’s claims, the jury will need to understand Recology’s actual business practices; without -5- DFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1-3 1 that context, the jury will be lost, trying to understand facts about an industry with which it has no 2 familiarity. Second, the facts about how Recology in fact received, paid for, accounted for and 3 sold CRV materials is relevant to assessing whether McVeigh was investigating matters that 4 reasonably could lead to a viable false claims case; and whether McVeigh should have known that 5 he needed to conduct further investigation before he could reasonably substantiate his speculation. 6 See McVeigh, 213 Cal. App. 4th at 463 (“[T]he employee must have reasonably based suspicions 7 of a false claim and it must be reasonably possible for the employee’s conduct to lead to a false 8 claims action.”). Third, it is also relevant to whether Recology therefore would have had concern 9 about McVeigh’s claims sufficient to motivate it to terminate his employment. 10 Expert Analysis. McVeigh also improperly seeks to exclude opinion testimony 11 from Recology’s two experts, William Brause and Andrew Tseng. Mot. at 9. These experts 12 previously testified that Recology’s accounting system did not result in false claims to the State. 13 Brause concluded that Recology was not overreporting CRV material and used “a thought-out 14 methodology for adjusting for any issues.” Hughes Decl. Ex. B (False Claims Act Trial Tr., June 15 2, 2014) at 206:4-207:25. Tseng observed that Recology’s system is “actually very conservative,” 16 and that the State had found merely “very common reporting errors,” which were “not really 17 fraud.” Id., Ex. C (False Claims Act Trial Tr., June 3, 2014) at 159:3-160:25. This evidence is 18 relevant for the same reasons as stated above. 19 C. The Evidence McVeigh Seeks To Exclude Is Not Unduly Prejudicial. 20 The arguments set forth in McVeigh’s Motion in Limine No. 1 lay bare the clear intent 21 behind his effort to exclude clearly relevant evidence: to avoid the harm to his case that will occur 22 when the jury hears it. The four specific requests go, in essence, to whether McVeigh had 23 reasonably based suspicions of a false claim, whether it was reasonably possible for his conduct to 24 lead to a false claims action, and whether his investigation and complaints were a substantial 25 motivating reason for his employment termination. 26 McVeigh claims the evidence would be “prejudicial,” but “[t]he word ‘prejudicial’ is not 27 synonymous with ‘damaging.’” People v. Johnson, 185 Cal. App. 4th 520, 534 (2010). Such 28 evidence is certainly a problem for McVeigh for all of the reasons stated above—but harm to a -6- DFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1-3 1 litigant’s meritless claim is not the sort of “unfair prejudice” that Evidence Code 352 seeks to 2 exclude. People v. Rucker, 126 Cal. App. 4th 1107, 1119 (2005) (“‘prejudicial’ is not 3 synonymous with ‘damaging’”); People v. Doolin, 45 Cal. 4th 390, 439 (2009) (evidence is not 4 prejudicial merely because it undermines the opponent's position or shores up that of the 5 proponent). McVeigh’s failure to substantiate any prejudice that might result from the 6 introduction of this evidence, let alone undue prejudice that substantially outweighs the 7 (significant) probative value it will have, is fatal to his motion. 8 The Court should deny McVeigh’s Motion in Limine No. 1 to exclude “any” evidence 9 relating to the False Claims Act litigation, post-termination investigations, audits, or expert 10 analysis of false claims. 11 III. OPPOSITION TO MOTION IN LIMINE NO. 2 12 In his second motion in limine, McVeigh improperly seeks a wholesale exclusion of “all 13 character evidence . . . unless there has been an offer of proof to demonstrate that the character 14 evidence is admissible.” Mot. at 10. 15 The rules of evidence already provide for when character evidence is admissible. There is 16 no basis to change the rules of evidence for this trial. Further, the Court should deny McVeigh’s 17 motion because, again, it fails to provide the specificity required in a motion in limine, here, going 18 so far as to seek to submit new evidence with reply papers that, for neither stated nor good reason, 19 he chose not to include with his motion papers. See, e.g., Mot. at 11 (exhibit “will be submitted as 20 an exhibit to David Anton’s Declaration to be filed with the Reply”). The Court should not 21 countenance such disregard for process. San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A., 22 102 Cal. App. 4th 308, 310 (2002) (“revers[ing] a summary judgment because the trial court erred 23 in considering evidence first submitted with the reply”). Considering evidence “not filed until 24 after [respondent] had responded to the issues raised” in a motion “violate[s] [respondent’s] due 25 process rights. [Respondent] was not informed what issues it was to meet in order to oppose the 26 motion.” Id. at 316. “Points raised in the reply brief for the first time will not be considered, 27 unless good reason is shown for failure to present them before. To withhold a point until the 28 closing brief deprives the respondent of the opportunity to answer it or requires the effort and -7- DFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1-3 1 delay of an additional brief by permission.” Campos v. Anderson, 57 Cal. App. 4th 784, 794 n.3 2 (1997). 3 Underscoring the abstractness of his motion, apart from Ms. Ramirez (addressed below), 4 McVeigh does not identify any specific witness whose testimony would relate to character 5 evidence. Rather, McVeigh states that “[b]ased on the list of witnesses identified by Recology, 6 many of them who were not deposed and/or did not testify in the first trial, [he] believes the only 7 testimony they could offer would relate to character evidence, e.g., prior bad acts.” Mot. at 10. In 8 other words, McVeigh is engaging in rank conjecture and asking the Court to do the same. It 9 should decline the invitation. See Morris, supra; Jennings, supra (motions in limine must be 10 aimed at a specific, identified body of evidence). 11 McVeigh’s more specific request that the Court exclude evidence concerning Ms. Ramirez 12 must also be denied. McVeigh argues that Recology relied on such evidence to give the 13 impression that “McVeigh had been found to have engaged in sexual harassment.” Mot. at 11. 14 This is false. Rather, Recology made statements and asked witnesses questions about McVeigh’s 15 “unprofessional conduct” towards Ms. Ramirez, as investigated and verified by Human Resources, 16 that resulted in McVeigh’s performance improvement plan. See, e.g., Hughes Decl. Ex. D 17 (Employment Trial Tr., April 28, 2015, Vol. 3) at 367:5-13. There is no support for McVeigh’s 18 allegation of an “unfounded character evidence attack” (Mot. at 11) by Recology, because there 19 never was one. Instead, evidence of McVeigh’s unprofessional conduct towards Ms. Ramirez is 20 admissible to show that as a result of McVeigh’s unprofessional conduct as a supervisor, he 21 received below-average scores on performance reviews and was the subject of an unprecedented 22 number of union complaints, resulting in his employment termination. 23 Such evidence is both relevant and admissible. While Evidence Code Section 1101(a) 24 forbids admission of evidence of a person’s character to prove his conduct on a specified occasion, 25 it nevertheless provides that such evidence may be admissible for another purpose, specifically, 26 “when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, 27 knowledge, identity, absence of mistake or accident.” Evid. Code § 1101(b). The admissibility or 28 limitation of evidence offered under Evidence Code Section 1101 relating to other acts depends on -8- DFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1-3 1 the evidentiary context in which it is offered. In cases where “motive matters” (e.g., wrongful 2 termination cases), plaintiff’s prior bad acts are admissible. See Bihun v. AT&T Info. Sys., 13 Cal. 3 App. 4th 976, 991 (1993) (“[E]vidence of reputation is admissible to prove a person’s character or 4 character trait when character or trait of character is an ultimate fact in dispute in the action.”). 5 If, upon any attempt by Recology to introduce particular character evidence at trial, 6 McVeigh believes he can establish a reason for its exclusion, he should object and raise it with the 7 Court at that time. 2 On its face, however, McVeigh’s Motion in Limine No. 2 should be denied 8 because it does not identify particular evidence for which exclusion is sought, and to the extent it 9 does, the evidence is relevant for permissible purposes. 10 IV. OPPOSITION TO MOTION IN LIMINE NO. 3 11 In his third motion in limine, McVeigh asks the Court to exclude evidence relating to 12 McVeigh’s job performance and other evidence allegedly not known or relied upon by Crosetti 13 when he participated in the decision to terminate McVeigh’s employment. Mot. at 11. 14 As is the case with McVeigh’s other motions in limine, the request to exclude 15 “[i]nformation that was unknown and not considered by Mr. Crosetti in his decision to terminate 16 Mr. McVeigh’s employment” (Mot. at 11-12), should be denied because it is devoid of any 17 citation to specific evidence or testimony. McVeigh fails to identify any specific evidence, and 18 instead provides the Court five examples of the “type of testimony and evidence [he] anticipates 19 will be offered by Recology.” Id. at 14 (emphasis added). In doing so, McVeigh improperly calls 20 for the Court and Recology to speculate what evidence he seeks to exclude. The Court should 21 deny McVeigh’s request on this basis alone and resolve any objections to the admissibility of 22 testimony or exhibits during the trial. See Morris, supra; Jennings, supra (motions in limine must 23 be aimed at a specific, identified body of evidence). 24 But equally important, McVeigh’s motion is predicated on mischaracterizing past 25 statements made by Crosetti. McVeigh falsely contends that the following exemplar testimony 26 should be excluded because Crosetti did not rely upon or consider any of it when he made the 27 2 28 McVeigh also obliquely makes reference to evidence regarding “psychological tests.” Mot. at 10. McVeigh does not specify what he is referring to, again precluding reply. -9- DFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1-3 1 decision to terminate McVeigh’s employment (Mot. at 14): (a) testimony of Ms. Ramirez 2 regarding her interactions with McVeigh at Tunnel Bayshore in 2006; (b) Ronald Walton’s 3 observations and opinions regarding McVeigh’s work performance at Sunset Scavenger in 2003 4 and 2004; (c) John Jurinek’s observations and opinions regarding McVeigh’s work performance at 5 Pier 96 in 2004 and 2005; (d) information regarding Deborah Savage and her interactions with 6 McVeigh at Tunnel Bayshore in 2007 and 2008; (e) union employee grievances filed involving 7 McVeigh’s supervision at Pier 96 in 2004 and 2005. Mot. at 12-13. 8 Contrary to McVeigh’s assertion, however, Crosetti’s trial testimony indicates that he did 9 know and did consider McVeigh’s entire employment history when he made the decision to 10 terminate McVeigh’s employment, including when McVeigh was a supervisor at Pier 96 as well 11 as his later positions at Tunnel Bayshore. For example, when asked at trial why he made the 12 decision to terminate McVeigh’s employment, Crosetti testified that 13 From the beginning, from the time that Brian came to [Recology], and went to the Pier, Recycle Central, spent some months there, all that 14 time at the Pier, John Jurinek, the plant manager at the Pier, called me 15 and said, “We have to get Brian out of here. He’s stirring up all kinds of problems with the employees, grievances, he doesn’t get along with 16 the other supervisors.” 17 Hughes Decl. Ex. E (McVeigh Employment Trial Tr., May 1, 2015, Vol. 6) at 946:22-947:4. See 18 also id. at 962:2-9 (Before terminating McVeigh’s employment, Crosetti spoke with John Lignetto 19 who informed Crosetti “that [McVeigh] had not done well at Sunset Scavenger, either, and that 20 [McVeigh] had been a problem.”); id. at 1010:19-24 (McVeigh “had a number of jobs, starting 21 with the Sunset job as a safety person, a supervisor at Sunset, supervisor at the Pier, a couple of 22 different supervisor positions at Tunnel, and apparently in all those situations he wore out his 23 welcome and he had more chances than most.”). 24 Lastly, Crosetti was not the only person involved in the decision to terminate McVeigh’s 25 employment. See, e.g., Hughes Decl. Ex. E at 961:9-15 (Lignetto would have to approve 26 Crosetti’s decision to terminate McVeigh’s employment “before anything could happen”). 27 Recology’s Human Resources department, which regulates all employment decisions, approved 28 McVeigh’s termination based on, among other information, reports gathered from McVeigh’s - 10 - DFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1-3 1 various supervisors over the years. Id. at 1016:9-1017:5 (Recology’s Human Resources 2 department regulated and supervised all procedures and documentation relating to McVeigh’s 3 termination); id. at 963:22-964:8 (Kathy Jamison, from Recology’s Human Resources department, 4 was involved in the decision to terminate McVeigh’s termination and reviewed the investigation 5 findings of David Jackson with Lignetto and Crosetti). And therefore, the fact that Crosetti may 6 not himself have been aware of certain information does not render the information irrelevant. 7 McVeigh himself acknowledges that “Crosetti identified three persons involved in the process that 8 resulted in his decision to terminate Mr. McVeigh: Kathy Jamison (Recology’s HR Manager), 9 David Jackson and attorney Depanita (sic) Amar.” Mot. at 3. All of these individuals’ testimony 10 about McVeigh’s employment history and performance is relevant to the jury’s assessment of 11 whether Recology terminated McVeigh for his poor job performance, rather than in response to 12 his investigation and complaints. While McVeigh may not wish for the jury to hear about his job 13 performance issues, it cannot be excluded on that basis. 14 The Court should deny McVeigh’s Motion in Limine No. 3 because it fails to identify any 15 specific evidence he seeks to exclude and instead improperly seeks a wholesale exclusion of 16 testimony and evidence. McVeigh’s failure to substantiate any prejudice that might result from 17 the introduction of this evidence, let alone undue prejudice that substantially outweighs the 18 (significant) probative value it will have, is fatal to his motion. It should be denied. 19 V. CONCLUSION 20 Recology respectfully requests that the Court enter an Order denying McVeigh’s 21 Motions in Limine Nos. 1-3 in their entirety. 22 Dated: June 26, 2020 ARNOLD & PORTER KAYE SCHOLER LLP 23 By: /s/ Jonathan W. Hughes 24 JONATHAN W. HUGHES 25 Attorneys for Defendant RECOLOGY INC. (formerly Norcal Waste 26 Systems, Inc.) and RECOLOGY SAN FRANCISCO (formerly SF Recycling and 27 Disposal, Inc.) 28 - 11 - US 167786047 DFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTIONS IN LIMINE NOS. 1-3