Preview
3/1/2021 9:05:16 AM Liz Pawek Kazan, McClain et al Page 10
1 ||Joseph D. Satterley (C.S.B. #286890)
jsatterley @kazanlaw.com
2 || Denyse F. Clancy (C.S.B. #255276)
dclancy @kazanlaw.com
3 || Michael T. Stewart (C.S.B. #253851)
mstewart@kazanlaw.com
4 || KAZAN, McCLAIN, SATTERLEY & GREENWOOD
A Professional Law Corporation
5 || Jack London Market
55 Harrison Street, Suite 400
6 || Oakland, California 94607
Telephone: (510) 302-1000
7 || Facsimile: (510) 835-4913
8 || Attorneys for Plaintiff
g 9 SUPERIOR COURT OF CALIFORNIA
3 E 5 10 COUNTY OF ALAMEDA
g5o 6:
yu
3 « é : 12 |) MEREDITH A. EGLI, Case No. RG20075272
Bes
Be F213 Plaintiff, Assigned for All Purposes to
mo 8S Judge Jo-Lynne Q. Lee
#3 es 14 v. Department 18
Ses S
- 3 ‘g & 15 || JOHNSON & JOHNSON, et al, (PROPOSED) ORDER ON PLAINTIFF’S
ae 2 OBJECTIONS TO NEW EVIDENCE
Oat. 16 Defendants. THAT WAS FIRST SUBMITTED IN
Q “8 REPLY TO PLAINTIFF’S OPPOSITION
= ga l7 TO JOHNSON & JOHNSON
g ze DEFENDANTS’ MOTION TO STAY OR
N <2 18 DISMISS FOR FORUM NON
a 3 CONVENIENS
5 19
3g Date: March 5, 2021
“20 Time: 10:00 a.m.
Action Filed: September 30, 2020
21 Trial Date: None Set
22 Reservation No.: R-2235459
23
24
25
26
27
28
3036333.1
(Proposed) Order on Plaintiff's
Objections to New Evidence thatwas FirstSubmitted inReply toPlaintiff's
Opposition to Johnson & Johnson Defendants’ Motion to Stayor Dismiss forForum Non Conveniens
3/1/2021 9:05:18 AM Liz Pawek Kazan, McClain et al Page 11
No. Material Obiected To Grounds for Objection Ruling
1. | All excerpts of Karen Improper New Reply Evidence: Sustained:
Abravanel’s September 27, “The general rule of motion
WN
2019 deposition testimony | practice, which applies here, isthat | Overruled:
in the Metwally case, new evidence is not permitted with
WH
which the J&J Defendants reply papers. .. .‘[T]he inclusion
F&F
submitted with their reply of additional evidentiary matter
papers. [Exh. P to Reply with the reply should only be
George Decl.] allowed in the exceptional case ...’
wD
and ifpermitted, the other party
should be given the opportunity to
Dn
respond.” [Jay v.Mahaffey (2013)
218 Cal. App.4th 1522, 1537-1538.]
NY
And given that the J&J
Defendants seek to dismiss the
case, the law governing summary
94607
judgment/adjudication motions also
is instructive. A court in ruling on
California
10 a motion for summary
Greenwood
wwwikazanlaw.com.
judgment/adjudication may not
11 consider evidence that is first
Oakland,
submitted with the moving
12 defendant’s reply papers. [San
Corporation
Diego Watercrafts, Inc. v. Wells
*
&
13
400
Fargo Bank (2002) 102
*
Satterley
Cal. App.4th 308, 316; Nazir v.
835-4913
Suite
14 United Airlines, Inc. (2009) 178
Law
Street,
Cal.App.4th 243, 252-253.]
Professional
(510)
15 “While the code provides for reply
Harrison
papers, itmakes no allowance for
McClain,
Fax:
16 submitting additional evidence or
A
filing a supplemental separate
55
302-1000
17 statement.” [San Diego
* Market
Watercrafts, 102 Cal.App.4th at
Kazan,
18 313; Nazir, 178 Cal.App.4th at 250
(510)
(‘Such evidence [in reply] is not
London
19 generally allowed.”).] When
evidence is submitted in reply, the
Jack
20 opposing party is “not informed
what issues it [is]to meet in order
21 to oppose the motion. Where a
remedy as drastic as summary
22 judgment is involved, due process
requires a party be fully advised of
23 the issues to be addressed and be
given adequate notice of what facts
24 it must rebut in order to
prevail.” [San Diego Watercrafts,
25 178 Cal.App.4th at 316.]
26 Hearsay:
Karen Abravanel’s
27 deposition testimony is hearsay,
and the J&J Defendants failto
28 satisfy any hearsay exception.
3036333.1 2
(Proposed) Order on Plaintiff's
Objections to New Evidence thatwas FirstSubmitted inReply toPlaintiff's
Opposition to Johnson & Johnson Defendants’ Motion to Stayor Dismiss forForum Non Conveniens
3/1/2021 9:05:20 AM Liz Pawek Kazan, McClain et al Page 12
Material Objected To Grounds for Objection Ruling
[Evid. Code § 1200.]
WN
Lack of Personal Knowledge:
A declarant cannot simply
WH
aver “personal knowledge,” but
F&F
rather must state facts showing
personal knowledge. [Evid. Code §
702(a); Osmond v.EWAP, Inc.
wD
(1984) 153 Cal. App.3d 842, 851.]
Dn
Here, the J&J Defendants fail to
show that Karen Abravanel
possessed any personal knowledge
NY
to support the proffered testimony.
Violation of the Secondary-
94607
Evidence Rule:
The secondary-evidence
California
10 tule generally prohibits the use of
Greenwood
wwwikazanlaw.com.
testimonial secondary evidence to
11 prove the contents of absent
Oakland,
documents. [Evid. Code §§ 1521,
12 1523.] Here, Karen Abravanel’s
Corporation
deposition testimony violates this
*
&
13 tule because she testified as to the
400
*
Satterley
purported contents of absent
835-4913
Suite
14 documents.
Law
Street,
2. | Allexcerpts of Lisa Improper New Reply Evidence: Sustained:
Professional
(510)
15 Gallo’s August 18, 2017 “The general rule of motion
Harrison
McClain,
deposition testimony in the practice, which applies here, is that Overruled:
Fax:
16 Jenkins case, which the new evidence isnot permitted with
A
J&J Defendants submitted reply papers. .. .‘[T]he inclusion
55
302-1000
17 with their reply papers. of additional evidentiary matter
* Market
[Exh. Q to Reply George with the reply should only be
Kazan,
18 Decl.] allowed in the exceptional case ...’
(510)
London
and ifpermitted, the other party
19 should be given the opportunity to
respond.” [Jay v.Mahaffey (2013)
Jack
20 218 Cal. App.4th 1522, 1537-1538.]
And given that the J&J
21 Defendants seek to dismiss the
case, the law governing summary
22 judgment/adjudication motions also
is instructive. A court in ruling on
23 a motion for summary
judgment/adjudication may not
24 consider evidence that is first
submitted with the moving
25 defendant’s reply papers. [San
Diego Watercrafts, Inc. v. Wells
26 Fargo Bank (2002) 102
Cal. App.4th 308, 316; Nazir v.
27 United Airlines, Inc. (2009) 178
Cal.App.4th 243, 252-253.]
28 “While the code provides for reply
3036333.1
3
(Proposed) Order on Plaintiff's
Objections to New Evidence thatwas FirstSubmitted inReply toPlaintiff's
Opposition to Johnson & Johnson Defendants’ Motion to Stayor Dismiss forForum Non Conveniens
3/1/2021 9:05:22 AM Liz Pawek Kazan, McClain et al Page 13
Material Objected To Grounds for Objection Ruling
papers, itmakes no allowance for
submitting additional evidence or
WN
filing a supplemental separate
statement.” [San Diego
WH
Watercrafts, 102 Cal.App.4th at
F&F
313; Nazir, 178 Cal. App.4th at 250
(“Such evidence [in reply] isnot
generally allowed.”).] When
wD
evidence is submitted in reply, the
opposing party is “not informed
Dn
what issues it [is]to meet in order
to oppose the motion. Where a
NY
remedy as drastic as summary
judgment is involved, due process
requires a party be fully advised of
94607
the issues to be addressed and be
given adequate notice of what facts
California
10 itmust rebut in order to
Greenwood
wwwikazanlaw.com.
prevail.” [San Diego Watercrafts,
11 178 Cal.App.4th at 316.]
Oakland,
12 Multiple Hearsay:
Corporation
Lisa Gallo’s deposition
*
&
13
400
testimony is hearsay, and the J&J
*
Satterley
Defendants fail to satisfy any
835-4913
Suite
14 hearsay exception. [Evid. Code §
Law
Street,
1200.] Ms. Gallo also testified
Professional
(510)
15 regarding the contents of a hearsay
Harrison
document that the J&J Defendants
McClain,
Fax:
16 fail to show isadmissible under any
A
hearsay exception. [People v.
55
302-1000
17 Sanchez (2016) 63 Cal.4th 665, 675
* Market
(Multiple hearsay may not be
Kazan,
18 admitted unless there isan
(510)
London
exception for each level.”).]
19
Lack of Personal Knowledge:
Jack
20 A declarant cannot simply
aver “personal knowledge,” but
21 rather must state facts showing
personal knowledge. [Evid. Code §
22 702(a); Osmond v.EWAP, Inc.
(1984) 153 Cal. App.3d 842, 851.]
23 Here, the J&J Defendants fail to
show that Lisa Gallo possessed any
24 personal knowledge to support the
proffered testimony.
25 3. | All excerpts of Henry Improper New Reply Evidence: Sustained:
Mulryan’s January 20, “The general rule of motion
26 2016 deposition testimony practice, which applies here, is that Overruled:
in the Dalis case, which new evidence isnot permitted with
27 the J&J Defendants reply papers. .. .‘[T]he inclusion
submitted with their reply of additional evidentiary matter
28 papers. [Exh, R to Reply with the reply should only be
3036333.1 4
(Proposed) Order on Plaintiff's
Objections to New Evidence thatwas FirstSubmitted inReply toPlaintiff's
Opposition to Johnson & Johnson Defendants’ Motion to Stayor Dismiss forForum Non Conveniens
3/1/2021 9:05:24 AM Liz Pawek Kazan, McClain et al Page 14
Material Objected To Grounds for Objection Ruling
George Decl.] allowed in the exceptional case ...’
and ifpermitted, the other party
WN
should be given the opportunity to
respond.” [Jay v.Mahaffey (2013)
WH
218 Cal. App.4th 1522, 1537-1538.]
F&F
And given that the J&J
Defendants seek to dismiss the
case, the law governing summary
wD
judgment/adjudication motions also
is instructive. A court in ruling on
Dn
a motion for summary
judgment/adjudication may not
NY
consider evidence that is first
submitted with the moving
defendant’s reply papers. [San
94607
Diego Watercrafts, Inc. v. Wells
Fargo Bank (2002) 102
California
10 Cal. App.4th 308, 316; Nazir v.
Greenwood
wwwikazanlaw.com.
United Airlines, Inc. (2009) 178
11 Cal.App.4th 243, 252-253.]
Oakland,
“While the code provides for reply
12 papers, itmakes no allowance for
Corporation
submitting additional evidence or
*
&
13
400
filing a supplemental separate
*
Satterley
statement.” [San Diego
835-4913
Suite
14 Watercrafts, 102 Cal.App.4th at
Law
Street,
313; Nazir, 178 Cal. App.4th at 250
Professional
(510)
15 (“Such evidence [in reply] isnot
Harrison
McClain,
generally allowed.”).] When
Fax:
16 evidence is submitted in reply, the
opposing party is “not informed
A
55
302-1000
17 what issues it [is]to meet in order
* Market
to oppose the motion. Where a
Kazan,
18 remedy as drastic as summary
(510)
judgment is involved, due process
London
19 requires a party be fully advised of
the issues to be addressed and be
Jack
20 given adequate notice of what facts
itmust rebut in order to
21 prevail.” [San Diego Watercrafts,
178 Cal.App.4th at 316.]
22
Multiple Hearsay:
23 Henry Mulryan’s deposition
testimony is hearsay, and the J&J
24 Defendants fail to satisfy any
hearsay exception. [Evid. Code §
25 1200.] Mr. Mulryan also testified
regarding the contents of hearsay
26 documents that the J&J Defendants
fail to show are admissible under
27 any hearsay exception. [People v.
Sanchez (2016) 63 Cal.4th 665, 675
28 (Multiple hearsay may not be
3036333.1
5
(Proposed) Order on Plaintiff's
Objections to New Evidence thatwas FirstSubmitted inReply toPlaintiff's
Opposition to Johnson & Johnson Defendants’ Motion to Stayor Dismiss forForum Non Conveniens
3/1/2021 9:05:26 AM Liz Pawek Kazan, McClain et al Page 15
Material Objected To Grounds for Objection Ruling
admitted unless there isan
exception for each level.”).]
WN
Lack of Personal Knowledge:
WH
A declarant cannot simply
F&F
aver “personal knowledge,” but
rather must state facts showing
personal knowledge. [Evid. Code §
wD
702(a); Osmond v.EWAP, Inc.
(1984) 153 Cal. App.3d 842, 851.]
Dn
Here, the J&J Defendants fail to
show that Henry Mulryan
NY
possessed any personal knowledge
to support the proffered testimony.
94607
Violation of the Secondary-
Evidence Rule:
California
10 The secondary-evidence
Greenwood
wwwikazanlaw.com.
tule generally prohibits the use of
11 testimonial secondary evidence to
Oakland,
prove the contents of absent
12 documents. [Evid. Code §§ 1521,
Corporation
1523.] Here, Henry Mulryan’s
*
&
13
400
deposition testimony violates this
*
Satterley
rule because he testified as to the
835-4913
Suite
14 purported contents of absent
Law
Street,
documents.
Professional
(510)
15 4. | Excerpts of Plaintiff’s Improper New Reply Evidence: Sustained:
Harrison
“The general rule of motion
McClain,
interrogatory responses to
Fax:
16 Defendant Avon Products, practice, which applies here, is that Overruled:
A
Inc., which the J&J new evidence isnot permitted with
55
302-1000
17 Defendants submitted with reply papers. .. .‘[T]he inclusion
* Market
their reply papers. [Exh. S of additional evidentiary matter
Kazan,
18 to Reply George Decl.] with the reply should only be
(510)
London
allowed in the exceptional case ...’
19 and ifpermitted, the other party
should be given the opportunity to
Jack
20 respond.” [Jay v.Mahaffey (2013)
218 Cal. App.4th 1522, 1537-1538.]
21 And given that the J&J
Defendants seek to dismiss the
22 case, the law governing summary
judgment/adjudication motions also
23 is instructive. A court in ruling on
a motion for summary
24 judgment/adjudication may not
consider evidence that is first
25 submitted with the moving
defendant’s reply papers. [San
26 Diego Watercrafts, Inc. v. Wells
Fargo Bank (2002) 102
27 Cal.App.4th 308, 316; Nazir v.
United Airlines, Inc. (2009) 178
28 Cal. App.4th 243, 252-253.)
3036333.1
6
(Proposed) Order on Plaintiff's
Objections to New Evidence thatwas FirstSubmitted inReply toPlaintiff's
Opposition to Johnson & Johnson Defendants’ Motion to Stayor Dismiss forForum Non Conveniens
3/1/2021 9:05:28 AM Liz Pawek Kazan, McClain et al Page 16
Material Objected To Grounds for Objection Ruling
“While the code provides for reply
papers, itmakes no allowance for
WN
submitting additional evidence or
filing a supplemental separate
WH
statement.” [San Diego
F&F
Watercrafts, 102 Cal.App.4th at
313; Nazir, 178 Cal.App.4th at 250
(‘Such evidence [in reply] is not
wD
generally allowed.”).] When
evidence is submitted in reply, the
Dn
opposing party is “not informed
what issues it [is]to meet in order
NY
to oppose the motion. Where a
remedy as drastic as summary
judgment is involved, due process
94607
requires a party be fully advised of
the issues to be addressed and be
California
10 given adequate notice of what facts
Greenwood
wwwikazanlaw.com.
it must rebut in order to
11 prevail.” [San Diego Watercrafts,
Oakland,
178 Cal. App.4th at 316.]
12 All excerpts of Michael Improper New Reply Evidence: Sustained:
Corporation
Burke, Ph.D.’s July 10, “The general rule of motion
*
&
13
400
2018 deposition testimony practice, which applies here, is that Overruled:
*
Satterley
in the Hayes case, which new evidence isnot permitted with
835-4913
Suite
14 the J&J Defendants reply papers. .. .‘[T]he inclusion
Law
Street,
submitted with their reply of additional evidentiary matter
Professional
(510)
15 papers. [Exh. T to Reply with the reply should only be
Harrison
McClain,
George Decl.] allowed in the exceptional case ...’
Fax:
16 and ifpermitted, the other party
A
should be given the opportunity to
55
302-1000
17 respond.” [Jay v.Mahaffey (2013)
* Market
218 Cal. App.4th 1522, 1537-1538.]
Kazan,
18 And given that the J&J
(510)
London
Defendants seek to dismiss the
19 case, the law governing summary
judgment/adjudication motions also
Jack
20 is instructive. A court in ruling on
a motion for summary
21 judgment/adjudication may not
consider evidence that is first
22 submitted with the moving
defendant’s reply papers. [San
23 Diego Watercrafts, Inc. v. Wells
Fargo Bank (2002) 102
24 Cal.App.4th 308, 316; Nazir v.
United Airlines, Inc. (2009) 178
25 Cal.App.4th 243, 252-253.]
“While the code provides for reply
26 papers, itmakes no allowance for
submitting additional evidence or
27 filing a supplemental separate
statement.” [San Diego
28 Watercrafts, 102 Cal.App.4th at
3036333.1 7
(Proposed) Order on Plaintiff's
Objections to New Evidence thatwas FirstSubmitted inReply toPlaintiff's
Opposition to Johnson & Johnson Defendants’ Motion to Stayor Dismiss forForum Non Conveniens
3/1/2021 9:05:30 AM Liz Pawek Kazan, McClain et al Page 17
Material Objected To Grounds for Objection Ruling
313; Nazir, 178 Cal.App.4th at 250
(‘Such evidence [in reply] is not
WN
generally allowed.”).] When
evidence is submitted in reply, the
WH
opposing party is “not informed
F&F
what issues it [is]to meet in order
to oppose the motion. Where a
remedy as drastic as summary
wD
judgment is involved, due process
requires a party be fully advised of
Dn
the issues to be addressed and be
given adequate notice of what facts
NY
it must rebut in order to
prevail.” [San Diego Watercrafts,
178 Cal.App.4th at 316.]
94607
Multiple Hearsay:
California
10 Michael Burke, Ph.D.’s
Preview
3/1/2021 9:05:16 AM Liz Pawek Kazan, McClain et al Page 10 1 ||Joseph D. Satterley (C.S.B. #286890) jsatterley @kazanlaw.com 2 || Denyse F. Clancy (C.S.B. #255276) dclancy @kazanlaw.com 3 || Michael T. Stewart (C.S.B. #253851) mstewart@kazanlaw.com 4 || KAZAN, McCLAIN, SATTERLEY & GREENWOOD A Professional Law Corporation 5 || Jack London Market 55 Harrison Street, Suite 400 6 || Oakland, California 94607 Telephone: (510) 302-1000 7 || Facsimile: (510) 835-4913 8 || Attorneys for Plaintiff g 9 SUPERIOR COURT OF CALIFORNIA 3 E 5 10 COUNTY OF ALAMEDA g5o 6: yu 3 « é : 12 |) MEREDITH A. EGLI, Case No. RG20075272 Bes Be F213 Plaintiff, Assigned for All Purposes to mo 8S Judge Jo-Lynne Q. Lee #3 es 14 v. Department 18 Ses S - 3 ‘g & 15 || JOHNSON & JOHNSON, et al, (PROPOSED) ORDER ON PLAINTIFF’S ae 2 OBJECTIONS TO NEW EVIDENCE Oat. 16 Defendants. THAT WAS FIRST SUBMITTED IN Q “8 REPLY TO PLAINTIFF’S OPPOSITION = ga l7 TO JOHNSON & JOHNSON g ze DEFENDANTS’ MOTION TO STAY OR N <2 18 DISMISS FOR FORUM NON a 3 CONVENIENS 5 19 3g Date: March 5, 2021 “20 Time: 10:00 a.m. Action Filed: September 30, 2020 21 Trial Date: None Set 22 Reservation No.: R-2235459 23 24 25 26 27 28 3036333.1 (Proposed) Order on Plaintiff's Objections to New Evidence thatwas FirstSubmitted inReply toPlaintiff's Opposition to Johnson & Johnson Defendants’ Motion to Stayor Dismiss forForum Non Conveniens 3/1/2021 9:05:18 AM Liz Pawek Kazan, McClain et al Page 11 No. Material Obiected To Grounds for Objection Ruling 1. | All excerpts of Karen Improper New Reply Evidence: Sustained: Abravanel’s September 27, “The general rule of motion WN 2019 deposition testimony | practice, which applies here, isthat | Overruled: in the Metwally case, new evidence is not permitted with WH which the J&J Defendants reply papers. .. .‘[T]he inclusion F&F submitted with their reply of additional evidentiary matter papers. [Exh. P to Reply with the reply should only be George Decl.] allowed in the exceptional case ...’ wD and ifpermitted, the other party should be given the opportunity to Dn respond.” [Jay v.Mahaffey (2013) 218 Cal. App.4th 1522, 1537-1538.] NY And given that the J&J Defendants seek to dismiss the case, the law governing summary 94607 judgment/adjudication motions also is instructive. A court in ruling on California 10 a motion for summary Greenwood wwwikazanlaw.com. judgment/adjudication may not 11 consider evidence that is first Oakland, submitted with the moving 12 defendant’s reply papers. [San Corporation Diego Watercrafts, Inc. v. Wells * & 13 400 Fargo Bank (2002) 102 * Satterley Cal. App.4th 308, 316; Nazir v. 835-4913 Suite 14 United Airlines, Inc. (2009) 178 Law Street, Cal.App.4th 243, 252-253.] Professional (510) 15 “While the code provides for reply Harrison papers, itmakes no allowance for McClain, Fax: 16 submitting additional evidence or A filing a supplemental separate 55 302-1000 17 statement.” [San Diego * Market Watercrafts, 102 Cal.App.4th at Kazan, 18 313; Nazir, 178 Cal.App.4th at 250 (510) (‘Such evidence [in reply] is not London 19 generally allowed.”).] When evidence is submitted in reply, the Jack 20 opposing party is “not informed what issues it [is]to meet in order 21 to oppose the motion. Where a remedy as drastic as summary 22 judgment is involved, due process requires a party be fully advised of 23 the issues to be addressed and be given adequate notice of what facts 24 it must rebut in order to prevail.” [San Diego Watercrafts, 25 178 Cal.App.4th at 316.] 26 Hearsay: Karen Abravanel’s 27 deposition testimony is hearsay, and the J&J Defendants failto 28 satisfy any hearsay exception. 3036333.1 2 (Proposed) Order on Plaintiff's Objections to New Evidence thatwas FirstSubmitted inReply toPlaintiff's Opposition to Johnson & Johnson Defendants’ Motion to Stayor Dismiss forForum Non Conveniens 3/1/2021 9:05:20 AM Liz Pawek Kazan, McClain et al Page 12 Material Objected To Grounds for Objection Ruling [Evid. Code § 1200.] WN Lack of Personal Knowledge: A declarant cannot simply WH aver “personal knowledge,” but F&F rather must state facts showing personal knowledge. [Evid. Code § 702(a); Osmond v.EWAP, Inc. wD (1984) 153 Cal. App.3d 842, 851.] Dn Here, the J&J Defendants fail to show that Karen Abravanel possessed any personal knowledge NY to support the proffered testimony. Violation of the Secondary- 94607 Evidence Rule: The secondary-evidence California 10 tule generally prohibits the use of Greenwood wwwikazanlaw.com. testimonial secondary evidence to 11 prove the contents of absent Oakland, documents. [Evid. Code §§ 1521, 12 1523.] Here, Karen Abravanel’s Corporation deposition testimony violates this * & 13 tule because she testified as to the 400 * Satterley purported contents of absent 835-4913 Suite 14 documents. Law Street, 2. | Allexcerpts of Lisa Improper New Reply Evidence: Sustained: Professional (510) 15 Gallo’s August 18, 2017 “The general rule of motion Harrison McClain, deposition testimony in the practice, which applies here, is that Overruled: Fax: 16 Jenkins case, which the new evidence isnot permitted with A J&J Defendants submitted reply papers. .. .‘[T]he inclusion 55 302-1000 17 with their reply papers. of additional evidentiary matter * Market [Exh. Q to Reply George with the reply should only be Kazan, 18 Decl.] allowed in the exceptional case ...’ (510) London and ifpermitted, the other party 19 should be given the opportunity to respond.” [Jay v.Mahaffey (2013) Jack 20 218 Cal. App.4th 1522, 1537-1538.] And given that the J&J 21 Defendants seek to dismiss the case, the law governing summary 22 judgment/adjudication motions also is instructive. A court in ruling on 23 a motion for summary judgment/adjudication may not 24 consider evidence that is first submitted with the moving 25 defendant’s reply papers. [San Diego Watercrafts, Inc. v. Wells 26 Fargo Bank (2002) 102 Cal. App.4th 308, 316; Nazir v. 27 United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252-253.] 28 “While the code provides for reply 3036333.1 3 (Proposed) Order on Plaintiff's Objections to New Evidence thatwas FirstSubmitted inReply toPlaintiff's Opposition to Johnson & Johnson Defendants’ Motion to Stayor Dismiss forForum Non Conveniens 3/1/2021 9:05:22 AM Liz Pawek Kazan, McClain et al Page 13 Material Objected To Grounds for Objection Ruling papers, itmakes no allowance for submitting additional evidence or WN filing a supplemental separate statement.” [San Diego WH Watercrafts, 102 Cal.App.4th at F&F 313; Nazir, 178 Cal. App.4th at 250 (“Such evidence [in reply] isnot generally allowed.”).] When wD evidence is submitted in reply, the opposing party is “not informed Dn what issues it [is]to meet in order to oppose the motion. Where a NY remedy as drastic as summary judgment is involved, due process requires a party be fully advised of 94607 the issues to be addressed and be given adequate notice of what facts California 10 itmust rebut in order to Greenwood wwwikazanlaw.com. prevail.” [San Diego Watercrafts, 11 178 Cal.App.4th at 316.] Oakland, 12 Multiple Hearsay: Corporation Lisa Gallo’s deposition * & 13 400 testimony is hearsay, and the J&J * Satterley Defendants fail to satisfy any 835-4913 Suite 14 hearsay exception. [Evid. Code § Law Street, 1200.] Ms. Gallo also testified Professional (510) 15 regarding the contents of a hearsay Harrison document that the J&J Defendants McClain, Fax: 16 fail to show isadmissible under any A hearsay exception. [People v. 55 302-1000 17 Sanchez (2016) 63 Cal.4th 665, 675 * Market (Multiple hearsay may not be Kazan, 18 admitted unless there isan (510) London exception for each level.”).] 19 Lack of Personal Knowledge: Jack 20 A declarant cannot simply aver “personal knowledge,” but 21 rather must state facts showing personal knowledge. [Evid. Code § 22 702(a); Osmond v.EWAP, Inc. (1984) 153 Cal. App.3d 842, 851.] 23 Here, the J&J Defendants fail to show that Lisa Gallo possessed any 24 personal knowledge to support the proffered testimony. 25 3. | All excerpts of Henry Improper New Reply Evidence: Sustained: Mulryan’s January 20, “The general rule of motion 26 2016 deposition testimony practice, which applies here, is that Overruled: in the Dalis case, which new evidence isnot permitted with 27 the J&J Defendants reply papers. .. .‘[T]he inclusion submitted with their reply of additional evidentiary matter 28 papers. [Exh, R to Reply with the reply should only be 3036333.1 4 (Proposed) Order on Plaintiff's Objections to New Evidence thatwas FirstSubmitted inReply toPlaintiff's Opposition to Johnson & Johnson Defendants’ Motion to Stayor Dismiss forForum Non Conveniens 3/1/2021 9:05:24 AM Liz Pawek Kazan, McClain et al Page 14 Material Objected To Grounds for Objection Ruling George Decl.] allowed in the exceptional case ...’ and ifpermitted, the other party WN should be given the opportunity to respond.” [Jay v.Mahaffey (2013) WH 218 Cal. App.4th 1522, 1537-1538.] F&F And given that the J&J Defendants seek to dismiss the case, the law governing summary wD judgment/adjudication motions also is instructive. A court in ruling on Dn a motion for summary judgment/adjudication may not NY consider evidence that is first submitted with the moving defendant’s reply papers. [San 94607 Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 California 10 Cal. App.4th 308, 316; Nazir v. Greenwood wwwikazanlaw.com. United Airlines, Inc. (2009) 178 11 Cal.App.4th 243, 252-253.] Oakland, “While the code provides for reply 12 papers, itmakes no allowance for Corporation submitting additional evidence or * & 13 400 filing a supplemental separate * Satterley statement.” [San Diego 835-4913 Suite 14 Watercrafts, 102 Cal.App.4th at Law Street, 313; Nazir, 178 Cal. App.4th at 250 Professional (510) 15 (“Such evidence [in reply] isnot Harrison McClain, generally allowed.”).] When Fax: 16 evidence is submitted in reply, the opposing party is “not informed A 55 302-1000 17 what issues it [is]to meet in order * Market to oppose the motion. Where a Kazan, 18 remedy as drastic as summary (510) judgment is involved, due process London 19 requires a party be fully advised of the issues to be addressed and be Jack 20 given adequate notice of what facts itmust rebut in order to 21 prevail.” [San Diego Watercrafts, 178 Cal.App.4th at 316.] 22 Multiple Hearsay: 23 Henry Mulryan’s deposition testimony is hearsay, and the J&J 24 Defendants fail to satisfy any hearsay exception. [Evid. Code § 25 1200.] Mr. Mulryan also testified regarding the contents of hearsay 26 documents that the J&J Defendants fail to show are admissible under 27 any hearsay exception. [People v. Sanchez (2016) 63 Cal.4th 665, 675 28 (Multiple hearsay may not be 3036333.1 5 (Proposed) Order on Plaintiff's Objections to New Evidence thatwas FirstSubmitted inReply toPlaintiff's Opposition to Johnson & Johnson Defendants’ Motion to Stayor Dismiss forForum Non Conveniens 3/1/2021 9:05:26 AM Liz Pawek Kazan, McClain et al Page 15 Material Objected To Grounds for Objection Ruling admitted unless there isan exception for each level.”).] WN Lack of Personal Knowledge: WH A declarant cannot simply F&F aver “personal knowledge,” but rather must state facts showing personal knowledge. [Evid. Code § wD 702(a); Osmond v.EWAP, Inc. (1984) 153 Cal. App.3d 842, 851.] Dn Here, the J&J Defendants fail to show that Henry Mulryan NY possessed any personal knowledge to support the proffered testimony. 94607 Violation of the Secondary- Evidence Rule: California 10 The secondary-evidence Greenwood wwwikazanlaw.com. tule generally prohibits the use of 11 testimonial secondary evidence to Oakland, prove the contents of absent 12 documents. [Evid. Code §§ 1521, Corporation 1523.] Here, Henry Mulryan’s * & 13 400 deposition testimony violates this * Satterley rule because he testified as to the 835-4913 Suite 14 purported contents of absent Law Street, documents. Professional (510) 15 4. | Excerpts of Plaintiff’s Improper New Reply Evidence: Sustained: Harrison “The general rule of motion McClain, interrogatory responses to Fax: 16 Defendant Avon Products, practice, which applies here, is that Overruled: A Inc., which the J&J new evidence isnot permitted with 55 302-1000 17 Defendants submitted with reply papers. .. .‘[T]he inclusion * Market their reply papers. [Exh. S of additional evidentiary matter Kazan, 18 to Reply George Decl.] with the reply should only be (510) London allowed in the exceptional case ...’ 19 and ifpermitted, the other party should be given the opportunity to Jack 20 respond.” [Jay v.Mahaffey (2013) 218 Cal. App.4th 1522, 1537-1538.] 21 And given that the J&J Defendants seek to dismiss the 22 case, the law governing summary judgment/adjudication motions also 23 is instructive. A court in ruling on a motion for summary 24 judgment/adjudication may not consider evidence that is first 25 submitted with the moving defendant’s reply papers. [San 26 Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 27 Cal.App.4th 308, 316; Nazir v. United Airlines, Inc. (2009) 178 28 Cal. App.4th 243, 252-253.) 3036333.1 6 (Proposed) Order on Plaintiff's Objections to New Evidence thatwas FirstSubmitted inReply toPlaintiff's Opposition to Johnson & Johnson Defendants’ Motion to Stayor Dismiss forForum Non Conveniens 3/1/2021 9:05:28 AM Liz Pawek Kazan, McClain et al Page 16 Material Objected To Grounds for Objection Ruling “While the code provides for reply papers, itmakes no allowance for WN submitting additional evidence or filing a supplemental separate WH statement.” [San Diego F&F Watercrafts, 102 Cal.App.4th at 313; Nazir, 178 Cal.App.4th at 250 (‘Such evidence [in reply] is not wD generally allowed.”).] When evidence is submitted in reply, the Dn opposing party is “not informed what issues it [is]to meet in order NY to oppose the motion. Where a remedy as drastic as summary judgment is involved, due process 94607 requires a party be fully advised of the issues to be addressed and be California 10 given adequate notice of what facts Greenwood wwwikazanlaw.com. it must rebut in order to 11 prevail.” [San Diego Watercrafts, Oakland, 178 Cal. App.4th at 316.] 12 All excerpts of Michael Improper New Reply Evidence: Sustained: Corporation Burke, Ph.D.’s July 10, “The general rule of motion * & 13 400 2018 deposition testimony practice, which applies here, is that Overruled: * Satterley in the Hayes case, which new evidence isnot permitted with 835-4913 Suite 14 the J&J Defendants reply papers. .. .‘[T]he inclusion Law Street, submitted with their reply of additional evidentiary matter Professional (510) 15 papers. [Exh. T to Reply with the reply should only be Harrison McClain, George Decl.] allowed in the exceptional case ...’ Fax: 16 and ifpermitted, the other party A should be given the opportunity to 55 302-1000 17 respond.” [Jay v.Mahaffey (2013) * Market 218 Cal. App.4th 1522, 1537-1538.] Kazan, 18 And given that the J&J (510) London Defendants seek to dismiss the 19 case, the law governing summary judgment/adjudication motions also Jack 20 is instructive. A court in ruling on a motion for summary 21 judgment/adjudication may not consider evidence that is first 22 submitted with the moving defendant’s reply papers. [San 23 Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 24 Cal.App.4th 308, 316; Nazir v. United Airlines, Inc. (2009) 178 25 Cal.App.4th 243, 252-253.] “While the code provides for reply 26 papers, itmakes no allowance for submitting additional evidence or 27 filing a supplemental separate statement.” [San Diego 28 Watercrafts, 102 Cal.App.4th at 3036333.1 7 (Proposed) Order on Plaintiff's Objections to New Evidence thatwas FirstSubmitted inReply toPlaintiff's Opposition to Johnson & Johnson Defendants’ Motion to Stayor Dismiss forForum Non Conveniens 3/1/2021 9:05:30 AM Liz Pawek Kazan, McClain et al Page 17 Material Objected To Grounds for Objection Ruling 313; Nazir, 178 Cal.App.4th at 250 (‘Such evidence [in reply] is not WN generally allowed.”).] When evidence is submitted in reply, the WH opposing party is “not informed F&F what issues it [is]to meet in order to oppose the motion. Where a remedy as drastic as summary wD judgment is involved, due process requires a party be fully advised of Dn the issues to be addressed and be given adequate notice of what facts NY it must rebut in order to prevail.” [San Diego Watercrafts, 178 Cal.App.4th at 316.] 94607 Multiple Hearsay: California 10 Michael Burke, Ph.D.’s