Preview
Aaron W. Moore, State Bar No.: 248566
Collin M. Bogener, State Bar No.: 272560
Michael L. Ricks, State Bar No.: 314687
Jason R. Lehfeldt, State Bar No.: 215792 10/27/2021
MOORE 4K BOGENKR, INC.
1600 West Street
Redding, California 96001
(530) 605-0355 / 605-3693 (fax)
Jeffety J. Svvanson, State Bar No.: 155118
SWANSON LAW OFFICE
2515 Park Marina Drive, Ste. 102
Redding, CA 96001
(530) 225-8773 / 232-2882 (fax)
Attorneys for Plaintiffs
STEPHEN ML'LINE, IV,
ROBERT J. MELINE,
NELDA F..1ESSEE,
12
MFI,ANIE G. FDGINGTON
13
14 IN THE SUPERIOR COURT FOR THK STATE OF CALIFORNIA
15
IN AND FOR THE COUNTY OF BUTTE
16
STEPHEN MELINE IV, CASL NO.: 127180
ROBERT J. MEL1NE,
NELDA F. JESSEE,
MELANIE G. EDGINGTON
MEMORANDUM OF POINTS AND
Plaintiffs,
AUTHORITIES IN SUPPORT OF
20 PLAINTIFFS'OTION IN LIMINE
//2 TO EXCLUDE ANY EVIDENCE
21 vs.
AT TRIAL RELATING TO THE
22 RANDAI,L C. MFLINE, et al. UNPLKAD CLAIMS/DEFENSES
23 Defendants.
Trial Date: November 8, 2021
24 Honorable Tamara L. Mosbargcr
AND RELATFD CROSS-ACTION. Dept. 1
25
26
27
28
esse 1
MEMORANDUM OP POINTS AND A IITRORI
TIESIN SUPPORT OP PLA
INTllkf'S'IO'I1
ONIN LIMINE PI 1 0 EXCLUDE ANY EYIDKNCK AT TRIAI.
RKIA'll
NOTO
'IklLk UNPLEAD CLAIMS/DEPENSES
INTRODUCTION
This motion in limine seeks an order to prevent Defendants fi'om asserting new theories
on the eve of trial. An order isnecessary to prevent Defendants from changing their position
after nearly 20 years of litigation. More importantly, Del'endants should not be allowed to
5
"surprise" Plaintiffs with new theories that Plaintiffs have not been able to conduct adequate
6
discovery on to analyze or rebut. For these reasons, as fully outlined below, Plaintiffs
7
respectfully request that the Court issue an order excluding Defendants'roposal for partition in
8
kind.
10 FACTS AND BACKGROUND
Plaintiffs filed the complaint for partition in 2003.'ach of Defendants'nswers seek
12 partition by sale, Throughout the protracted litigation, Defendants have consistently argued that
13 1) the property should not be partitioned, and 2) if the property is to be partitioned, it must be by
14 sale. Following an Interlocutory Order in which Hon, Noel IJ. Watlcins, Judge (Ret'd) ruled that
the property was to be partitioned, either by sale or in kind, Defendants solely argued thai the
range should be sold in its entirety. In fact, trial was previously set in February 2017 with Hon.
16
Noel H. Watkins, Judge (Ret'd) as referee by stipulation. During that trial, counsel for Ronald
17
Rabo, Michael Rabo, Fredericlc Rabo, Mary Ann Rabo Schweiger, and Susan R. Miller stated,
18
quite clearly:
19 "We are not taking the position that the property may not be partitioned. We
20 have always taken the position that it may not and should not bc partitioned
in kind." (Trial transcript, 10:22-25)
21
LikeAAdse, counsel for Linda CT. Carlson, Trustee of the .lack Meline Irrevocable Living Trust
22
dated December 30, 1992 stated ihe "only fair way [to partition the propertyj is to sell it." (Trial
23
transcript, 15:16-18).
24
Despite the answers and history involved, on Thursday, October 21, 2021, less than three
25
weeks prior to commencement of trial, counsel for Defendants introduced a new theory seeking
26
27
'he "complaint" was originally a cross-complaint filed in response to a complaint for partition relating to another
28 jointly owned property.
Vsap 2
SUl'PORT OF PLAINTIFFS'IOT ION IN LIAI INK FI TO EXCLUDE ANY KYI DEN CL'T TRIAL RKLA
MF MORAN DUM OF POINTS A'I V AL''ROR I'I IKS IN TINGTO
TSK UNPLKAD CLAIMSIDEFKNSES
partition by division. In introducing the theory at such a late time, Plaintiffs have been prevented
from conducting complete discovely on the theory, locating necessary rebuttal witnesses, and
from fully exploring ihe proposed partition.
LEGAL AUTHORITY
A. Defendants Are Barred from Raisins Unnlead Claims and Defenses
"[Tjrial courts regularly exercise their 'basic power to insure that all parties receive a fair
trial'y precluding evidence." Peat, Marwick, Mitchell d'cCo. v. Superior Ct., 200 Cal.App.3d
272, 288 (1988) (citing Castaline v,City of Los Angeles, 47 Cal.App.3d 580, 592 (1975)). "In so
doing trial courts generally employ the 'motion in limine,'hich is 'not expressly authorized by
statute'ut is within the trial court's 'inherent power to entertain and grant.'" (Ld) (citing 3 Witkin,
Cal. Fvid, Intro, of Evidence at Trial tj2011(3d ed. 1986).)
A motion in limine is commonly brought at the beginning of trial when evidentiary issues
13 are anticipated by the parties and is "designed to preclude the preseni.ation of evidence deemed
14
inadmissible and prejudicial by ihe moving party." (Schweitzer v. 5'estminster Investments, 157
Cal.App.4th 1195, 1214 (2007).) a'Thc scope of such motion is any kind of evidence which could
15
be objected to ai trial, either as irrclcvant or subject to discretionary exclusion as unduly
16
prejudicial.'" (Peat, Marwick, Mitchell LeeCo., 200 Cal.App.3d at 288) (quoting Clemens v.
17
American 8'arranty Corp., 193 Cal.App.3d 444, 451 (1987).)
18
Despite nearly twenty years of ongoing litigation, Defendants introduced a new theory
19 just weeks before trial seeking partition in kind. A pleading "delimits the nature of the legal
20 theories which plaintiff may pursue and ihe nature of the evidence which is admissible." (Ostling
21 v. Loring, 27 Cal.App.4th 1731, 1744 (1994),) "It is axiomatic that '[tjhc pleadings establish thc
22 scope of an action and, absent an amendment to thc pleadings, parties cannot introduce evidence
23
about issues outside the pleadings." (Schweitzer, 157 Cal.App.4th at 1214; see also llughes v.
Blue Cross oflkiorthern California, 215 Cal App 3d 832, 858 (1989) (stating that evidence cannot
24
be used to establish an issue that the parties have not made in their pleadings).)
25
In California, the answer to a complaint must include "'[aj statement of any new matter
26
constituting a defense.'he phrase 'new matter'efers to something relied on by a defendant
which is not put in issue by the plaintiff,'" (State Farm Mut, Auto Ins. Co. v. Superio~ Court
gage 3
L'l TO EXCLUDE ANT rvIDL/ICE AT TRIAL RKLAI'INO
MEMORANDUM Ol'OINTS AND AUTHORITIES IN SUFFORT OF I'LAI/ITIFFS'OTION IN
LIM IN 'IO
THE UNFLEAD CLAISIS/Dal/IINSES
(1991) 228 Cal.App.3d 721, 725.) This means that issues not responsive to essential allegations
of the complaint, "must be raised in the answer as 'new matter,'" (Id,) These "new matters" are
generally asserted as an affirmative defense in the answer. Il'a party fails to plead an affirmative
defense with the new matter, that party waives that defense and cannot argue iiai trial. (See
4
California Academy of Sciences v. County of Fresno (1987) 192 Cal.App.3d 1436, 1442. [MWe
5
also reject appellant's waiver and estoppel arguments because the County failed to raise them as
6
affirmative defenses in its answer. A party who fails to plead aflirmative defenses waives
them.").
Evidcncc of or references to unpled claims or theories are irrelevant to Plaintiffs. Under
9 California Evidence Code, section 350, N[n]o evidence is admissible except relevant evidence."
10 Relevant evidence is defined as, "evidence...having any tendency in reason to prove or disprove
any disputed fact that is of consequence to the determination of the action." Cal. Fvid. Code tj
210. Evidencing referring to or supporting unpled claims or theories does not tend to prove or
disprove any disputed fact pertaining to the causes of action in Plaintiffs'omplaints. (See Cota
13
v. County of Los Angeles, 105 Cal.App.3d 282, 293 (1980) [*9] (NEvidence that is not pertinent
14
to the issues raised by the pleadings is immaterial and ii is error to allow introduction of such
15
evidence."); see also Ruiner v. Bueno Community Memorial Hosp. 18 Cal.App.3d 240, 253
(1971) (same) (citations omitted).
17 Moreover, reference to or evidence of unpled claims or theories should be excluded under
18 California Evidence Code section 352 as evidence that will create a substantial danger of undue
prejudice to Defendant and will confuse thc issues. California Evidence Code section 352
20 provides that:
"The court in its discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission will (a)
22 ncccssitate undue consumption of time or (b) create substantial danger of
undue prejudice, of confusing the issues, or of misleading the jury."
24 (Cal. Evid. Code tj352; sce also People v. Gonzalez, 38 Cal.4th 932, 950 (2006) (stating the trial
court has broad discretion both in detertnining ihe relevance of evidence and assessing whether
its prejudicial effect outweighs its probative value).) Herc, Plaintiff has prepared to proceed
against only the claims plead in Defendants'nswers.
PSge 4
MEMORANDUM OP POINTS AND All l'I I 0 RIFI KS IN
SUPPORI'F PLAINTIFFS'IO II
ON Sl 0 EXCLUDE ANY EVIDENCE
IN LIIN IN K
I I A'ISNC TO
AT TRIA I,
RE
TUK UNPLKAD CLAIMS/DEFENSES
B. Discoverv Closed Prior to the Introduction of Unnlead Claims
Discovery closed prior to the 2017 trial. However, on July 27, 2020, this Court ordered
that discovery is reopened as to changed circumstances related to the Camp Fire. (Minute Order,
July 27, 2020). In no way is Defendants'ew theory related to changed circumstances of any
kind, let alone as a result of the Camp Fire. Based thereon, the Court should exclude any and all
5
references to or evidence of unpled claims.
During the deposition of James Stevens, Defendants'xpert who has created the new in
kind proposal, Mr. Stevens was asked about his assignments in which he identified two; First,
8
he was to determine the potential to divide the range into 8, 11, or 21 parcels. (Stevens Vol. I,
33:19-24). Second, he was to detentune how many parcels comprise the range. (Stevens Vol. I,
10
34:1-3). In response to the firstassignment, Mr. Stevens concluded that it is too expensive to
divide the property. (Stevens Vol. II, 19: 1-8).
12
IV.
13
CONCLUSION
14
For the foregoing reasons, the Court should exclude any and all reference to or evidence
15
of unpled claims or theories in trial of this instant action. The Defendants have had nearly 20
16
years to plead or even offer evidence for a partition in kind, and have not done so. In the
meantime, the Plaintiffs has gone to great expense to propound discovery, retain experts, and
prepare for trial. Defendants must proceed to trial solely on the theories alleged in the Answers.
19
20 Dated: October 27, 2021
MOORE k. BOGENER, INC.
21
22
23 By:
AARON W. MOORE
24 Attorneys for Plaintiffs
25 STEPHEN MELINE, IV,
ROBERT J. MELINE,
26 NELDA F. JESSEE,
MELANIE G. EDGINGTON
27
PREP 5
NIESIORANDUSI OF FOINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS'IOTION IN LUH INK FI TO EXCLUDE ANY K YIDENCK AT TRIAL RELATING 1 0
THE UNPLKAD CI.AUHS/DEFENSES
Preview
Aaron W. Moore, State Bar No.: 248566 Collin M. Bogener, State Bar No.: 272560 Michael L. Ricks, State Bar No.: 314687 Jason R. Lehfeldt, State Bar No.: 215792 10/27/2021 MOORE 4K BOGENKR, INC. 1600 West Street Redding, California 96001 (530) 605-0355 / 605-3693 (fax) Jeffety J. Svvanson, State Bar No.: 155118 SWANSON LAW OFFICE 2515 Park Marina Drive, Ste. 102 Redding, CA 96001 (530) 225-8773 / 232-2882 (fax) Attorneys for Plaintiffs STEPHEN ML'LINE, IV, ROBERT J. MELINE, NELDA F..1ESSEE, 12 MFI,ANIE G. FDGINGTON 13 14 IN THE SUPERIOR COURT FOR THK STATE OF CALIFORNIA 15 IN AND FOR THE COUNTY OF BUTTE 16 STEPHEN MELINE IV, CASL NO.: 127180 ROBERT J. MEL1NE, NELDA F. JESSEE, MELANIE G. EDGINGTON MEMORANDUM OF POINTS AND Plaintiffs, AUTHORITIES IN SUPPORT OF 20 PLAINTIFFS'OTION IN LIMINE //2 TO EXCLUDE ANY EVIDENCE 21 vs. AT TRIAL RELATING TO THE 22 RANDAI,L C. MFLINE, et al. UNPLKAD CLAIMS/DEFENSES 23 Defendants. Trial Date: November 8, 2021 24 Honorable Tamara L. Mosbargcr AND RELATFD CROSS-ACTION. Dept. 1 25 26 27 28 esse 1 MEMORANDUM OP POINTS AND A IITRORI TIESIN SUPPORT OP PLA INTllkf'S'IO'I1 ONIN LIMINE PI 1 0 EXCLUDE ANY EYIDKNCK AT TRIAI. RKIA'll NOTO 'IklLk UNPLEAD CLAIMS/DEPENSES INTRODUCTION This motion in limine seeks an order to prevent Defendants fi'om asserting new theories on the eve of trial. An order isnecessary to prevent Defendants from changing their position after nearly 20 years of litigation. More importantly, Del'endants should not be allowed to 5 "surprise" Plaintiffs with new theories that Plaintiffs have not been able to conduct adequate 6 discovery on to analyze or rebut. For these reasons, as fully outlined below, Plaintiffs 7 respectfully request that the Court issue an order excluding Defendants'roposal for partition in 8 kind. 10 FACTS AND BACKGROUND Plaintiffs filed the complaint for partition in 2003.'ach of Defendants'nswers seek 12 partition by sale, Throughout the protracted litigation, Defendants have consistently argued that 13 1) the property should not be partitioned, and 2) if the property is to be partitioned, it must be by 14 sale. Following an Interlocutory Order in which Hon, Noel IJ. Watlcins, Judge (Ret'd) ruled that the property was to be partitioned, either by sale or in kind, Defendants solely argued thai the range should be sold in its entirety. In fact, trial was previously set in February 2017 with Hon. 16 Noel H. Watkins, Judge (Ret'd) as referee by stipulation. During that trial, counsel for Ronald 17 Rabo, Michael Rabo, Fredericlc Rabo, Mary Ann Rabo Schweiger, and Susan R. Miller stated, 18 quite clearly: 19 "We are not taking the position that the property may not be partitioned. We 20 have always taken the position that it may not and should not bc partitioned in kind." (Trial transcript, 10:22-25) 21 LikeAAdse, counsel for Linda CT. Carlson, Trustee of the .lack Meline Irrevocable Living Trust 22 dated December 30, 1992 stated ihe "only fair way [to partition the propertyj is to sell it." (Trial 23 transcript, 15:16-18). 24 Despite the answers and history involved, on Thursday, October 21, 2021, less than three 25 weeks prior to commencement of trial, counsel for Defendants introduced a new theory seeking 26 27 'he "complaint" was originally a cross-complaint filed in response to a complaint for partition relating to another 28 jointly owned property. Vsap 2 SUl'PORT OF PLAINTIFFS'IOT ION IN LIAI INK FI TO EXCLUDE ANY KYI DEN CL'T TRIAL RKLA MF MORAN DUM OF POINTS A'I V AL''ROR I'I IKS IN TINGTO TSK UNPLKAD CLAIMSIDEFKNSES partition by division. In introducing the theory at such a late time, Plaintiffs have been prevented from conducting complete discovely on the theory, locating necessary rebuttal witnesses, and from fully exploring ihe proposed partition. LEGAL AUTHORITY A. Defendants Are Barred from Raisins Unnlead Claims and Defenses "[Tjrial courts regularly exercise their 'basic power to insure that all parties receive a fair trial'y precluding evidence." Peat, Marwick, Mitchell d'cCo. v. Superior Ct., 200 Cal.App.3d 272, 288 (1988) (citing Castaline v,City of Los Angeles, 47 Cal.App.3d 580, 592 (1975)). "In so doing trial courts generally employ the 'motion in limine,'hich is 'not expressly authorized by statute'ut is within the trial court's 'inherent power to entertain and grant.'" (Ld) (citing 3 Witkin, Cal. Fvid, Intro, of Evidence at Trial tj2011(3d ed. 1986).) A motion in limine is commonly brought at the beginning of trial when evidentiary issues 13 are anticipated by the parties and is "designed to preclude the preseni.ation of evidence deemed 14 inadmissible and prejudicial by ihe moving party." (Schweitzer v. 5'estminster Investments, 157 Cal.App.4th 1195, 1214 (2007).) a'Thc scope of such motion is any kind of evidence which could 15 be objected to ai trial, either as irrclcvant or subject to discretionary exclusion as unduly 16 prejudicial.'" (Peat, Marwick, Mitchell LeeCo., 200 Cal.App.3d at 288) (quoting Clemens v. 17 American 8'arranty Corp., 193 Cal.App.3d 444, 451 (1987).) 18 Despite nearly twenty years of ongoing litigation, Defendants introduced a new theory 19 just weeks before trial seeking partition in kind. A pleading "delimits the nature of the legal 20 theories which plaintiff may pursue and ihe nature of the evidence which is admissible." (Ostling 21 v. Loring, 27 Cal.App.4th 1731, 1744 (1994),) "It is axiomatic that '[tjhc pleadings establish thc 22 scope of an action and, absent an amendment to thc pleadings, parties cannot introduce evidence 23 about issues outside the pleadings." (Schweitzer, 157 Cal.App.4th at 1214; see also llughes v. Blue Cross oflkiorthern California, 215 Cal App 3d 832, 858 (1989) (stating that evidence cannot 24 be used to establish an issue that the parties have not made in their pleadings).) 25 In California, the answer to a complaint must include "'[aj statement of any new matter 26 constituting a defense.'he phrase 'new matter'efers to something relied on by a defendant which is not put in issue by the plaintiff,'" (State Farm Mut, Auto Ins. Co. v. Superio~ Court gage 3 L'l TO EXCLUDE ANT rvIDL/ICE AT TRIAL RKLAI'INO MEMORANDUM Ol'OINTS AND AUTHORITIES IN SUFFORT OF I'LAI/ITIFFS'OTION IN LIM IN 'IO THE UNFLEAD CLAISIS/Dal/IINSES (1991) 228 Cal.App.3d 721, 725.) This means that issues not responsive to essential allegations of the complaint, "must be raised in the answer as 'new matter,'" (Id,) These "new matters" are generally asserted as an affirmative defense in the answer. Il'a party fails to plead an affirmative defense with the new matter, that party waives that defense and cannot argue iiai trial. (See 4 California Academy of Sciences v. County of Fresno (1987) 192 Cal.App.3d 1436, 1442. [MWe 5 also reject appellant's waiver and estoppel arguments because the County failed to raise them as 6 affirmative defenses in its answer. A party who fails to plead aflirmative defenses waives them."). Evidcncc of or references to unpled claims or theories are irrelevant to Plaintiffs. Under 9 California Evidence Code, section 350, N[n]o evidence is admissible except relevant evidence." 10 Relevant evidence is defined as, "evidence...having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." Cal. Fvid. Code tj 210. Evidencing referring to or supporting unpled claims or theories does not tend to prove or disprove any disputed fact pertaining to the causes of action in Plaintiffs'omplaints. (See Cota 13 v. County of Los Angeles, 105 Cal.App.3d 282, 293 (1980) [*9] (NEvidence that is not pertinent 14 to the issues raised by the pleadings is immaterial and ii is error to allow introduction of such 15 evidence."); see also Ruiner v. Bueno Community Memorial Hosp. 18 Cal.App.3d 240, 253 (1971) (same) (citations omitted). 17 Moreover, reference to or evidence of unpled claims or theories should be excluded under 18 California Evidence Code section 352 as evidence that will create a substantial danger of undue prejudice to Defendant and will confuse thc issues. California Evidence Code section 352 20 provides that: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) 22 ncccssitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." 24 (Cal. Evid. Code tj352; sce also People v. Gonzalez, 38 Cal.4th 932, 950 (2006) (stating the trial court has broad discretion both in detertnining ihe relevance of evidence and assessing whether its prejudicial effect outweighs its probative value).) Herc, Plaintiff has prepared to proceed against only the claims plead in Defendants'nswers. PSge 4 MEMORANDUM OP POINTS AND All l'I I 0 RIFI KS IN SUPPORI'F PLAINTIFFS'IO II ON Sl 0 EXCLUDE ANY EVIDENCE IN LIIN IN K I I A'ISNC TO AT TRIA I, RE TUK UNPLKAD CLAIMS/DEFENSES B. Discoverv Closed Prior to the Introduction of Unnlead Claims Discovery closed prior to the 2017 trial. However, on July 27, 2020, this Court ordered that discovery is reopened as to changed circumstances related to the Camp Fire. (Minute Order, July 27, 2020). In no way is Defendants'ew theory related to changed circumstances of any kind, let alone as a result of the Camp Fire. Based thereon, the Court should exclude any and all 5 references to or evidence of unpled claims. During the deposition of James Stevens, Defendants'xpert who has created the new in kind proposal, Mr. Stevens was asked about his assignments in which he identified two; First, 8 he was to determine the potential to divide the range into 8, 11, or 21 parcels. (Stevens Vol. I, 33:19-24). Second, he was to detentune how many parcels comprise the range. (Stevens Vol. I, 10 34:1-3). In response to the firstassignment, Mr. Stevens concluded that it is too expensive to divide the property. (Stevens Vol. II, 19: 1-8). 12 IV. 13 CONCLUSION 14 For the foregoing reasons, the Court should exclude any and all reference to or evidence 15 of unpled claims or theories in trial of this instant action. The Defendants have had nearly 20 16 years to plead or even offer evidence for a partition in kind, and have not done so. In the meantime, the Plaintiffs has gone to great expense to propound discovery, retain experts, and prepare for trial. Defendants must proceed to trial solely on the theories alleged in the Answers. 19 20 Dated: October 27, 2021 MOORE k. BOGENER, INC. 21 22 23 By: AARON W. MOORE 24 Attorneys for Plaintiffs 25 STEPHEN MELINE, IV, ROBERT J. MELINE, 26 NELDA F. JESSEE, MELANIE G. EDGINGTON 27 PREP 5 NIESIORANDUSI OF FOINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS'IOTION IN LUH INK FI TO EXCLUDE ANY K YIDENCK AT TRIAL RELATING 1 0 THE UNPLKAD CI.AUHS/DEFENSES