Kelli Peters vs. Jill B. Easter

Motion in Limine

Cal. Super. - 4th Dist.August 3, 2012

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Kent Easter, In Pro Per 153 Baywood Drive Newport Beach, CA 92660 kentweaster@gmail.com Defendant Jill Easter, In Pro Per P.O. Box 12402 Costa Mesa, CA 92626 easterjb@gmail.com Defendant SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE CENTRAL JUSTICE CENTER KELLI PETERS,et al. Plaintiff, Vs. KENT W. EASTER and JILL B. EASTER, Defendants. CASE NO. 30-2012-00588580-CU-PO-CJC DEFENDANTS KENT EASTER AND JILL EASTER’S NOTICE OF MOTIONS AND MOTIONS IN LIMINE TO EXCLUDE: 1.) HEARSAY EVIDENCE 2.) PRIVILEGED CONDUCT UNDER CAL. CIV. CODE §47(B) 3.) EVIDENCE OF INABILITY TO WORK BY PLAINTIFF BILL PETERS 4.) Date: February 1, 2016 Time: 9:00 a.m. Dept.: 32 DEFENDANTS’ MOTION IN LIMINE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION AND MOTION TO THE PLAINTIFFS AND THEIR ATTORNEY OF RECORD: PLEASE TAKE NOTICE THAT on Monday, February 1, 2016 at 9:00 a.m. or as soon thereafter as the matter may be heard in Department 32 of the above-entitled Court, located at 700 Civic Center West, Santa Ana, California 92701, Defendants Kent W. Easter and Jill Easter will, and hereby do, object to and move in /imine against the admission of, or reference to, anticipated testimony and evidence before the jury in this matter. Said disputed testimony and evidence set forth below includes: a) statements of witnesses not based on personal knowledge; b) inadmissible hearsay; c) protected petitioning activity under California Civil Code §47(b); d) evidence of purported inability to work not subject to cross-examination;e) f) relevance. The specific anticipated proffered evidence and statements of counsel include: I. Testimony of Kelli Peters or other persons without personal knowledge or about out of court statements made for the truth of the matter asserted that: a. Jill and/or Kent Easter came to the school and handed out fliers to people. b. Jill and/or Kent Easter took people aside at the school and told them about what happened to their son, and the problems caused by Jane Doe. C. Jill and/or Kent Easter called the school district and the school about Jane Doe. 2. Testimony of Kelli Peters or other persons Date: January 28, 2016 Respectfully Submitted, By: /S/ 1 DEFENDANTS’ MOTION IN LIMINE IA N ~ N O N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KENT EASTER By: /S/ JILL EASTER 2 DEFENDANTS’ MOTION IN LIMINE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM L HEARSAY STATEMENTS AND SPECULATION OR TESTIMONH WITHOUT PERSONAL KNOWLEDGE BY THE PLAINTIFFS MUST BE DEEMED INADMISSIBLE AND EXCLUDED FROM TRIAL. The gist of the Plaintiffs’ case is that a February 2010 incident involving Mrs. Peter’s supervision ofthe six year old Easters’ son gave rise to a February 2011 incident in which narcotics were planted in Mrs. Peters’ vehicle. During the course of her testimony in the criminal proceedings against the Defendants, Ms. Doe was permitted to testify to all of the following: 1. In the year following the February 2010 incident, Ms. Doe does not know of Kent or Jill Easter coming near her. (Grand Jury Tr. 42:17-20.) Indeed, Ms. Doe never met Jill Easter’s husband during this time, so she had no idea what he looks like —and thus has no idea if he was ever around her. (GJ 43:16-20.) Referring to the Easters, she nonetheless testified: (a) “But they started harassing me through showing up at the school in front ofthe school. Handing out fliers to people. Listing things that I did to their son.” (GJ 42:20-23.) (b) “They were taking people aside and telling them that I drug their son out the back door, and I scraped his knuckles and I made him bloody.” (GJ 42:23-25.) (c) “And then they started going to the court like a month later and asking for a restraining order, saying that I wastrying to kill her. And that I was stalking her.” (GJ 42:26-43:2.) (d) “And she [Jill Easter] was calling the district, the school district, and the school, trying to have me thrown out of the school, thrown out of the volunteers, thrown out ofthe district, taken off the P.T.A., you know, just banned completely. She insisted that it happened. She was insisting on it.” (GJ 43:3-8.) 3 DEFENDANTS’ MOTION IN LIMINE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (e) “I mean the harassment continued and continued.” (GJ 43:10-11.) “And all I did was ignore her. I didn’t even respond to her ever. I just, I thought I am just going to ignore her, maybe she will go away. Everything that she accused me of, not one thing was true. I didn’t do anything to her.” (GJ 43:11-15.) A. Inadmissible Hearsay Must Be Excluded Evidence Code section 1200 defines “hearsay evidence” as “evidence of a statement that was made other than by a witness while testifying at the hearing and thatis offered to prove the truth of the matter stated.” (§ 1200, subd. (a).) “Except as provided by law, hearsay evidence is inadmissible.” (§ 1200, subd. (b).) Much of Ms. Peters’ prior testimony consisted of inadmissible hearsay or other testimony for which inadequate foundation had been laid: I. Ms. Peters admitted she did not know of Kent or Jill Easter coming near her over the year following the February 2010 incident. She thus could not have witnessed the Easters “showing up at the school in front of the school ... [h]anding out fliers to people...” Indeed, no foundation whatsoever was laid for such testimony. In addition, there is no evidence that she ever saw any such fliers. The testimony could therefore only be based on reports to her by others. Accordingly, such testimony is inadmissible hearsay under section 1200. 2. Ms. Peters also could have no personal knowledge of the Easters “taking people aside and telling them that I drug their son out the black door, and I scraped his knuckles and I made him bloody.” As such, the testimony is inadmissible hearsay under section 1200. 3. Ms. Peters’ claims that Jill Easter “. . .was calling the district, the school district, and the school” and was “insisting” that Ms. Peters be “thrown out of the school, thrown out of the volunteers, thrown out of the district, taken off the P.T.A., 4 DEFENDANTS’ MOTION IN LIMINE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 you know, just banned completely.” Again, no foundation can be laid forthis testimony, because it could not be based on personal knowledge — rendering the testimony inadmissible. 4. Ms. Peters also has claimed the Easters “started going to the court like a month later and asking for a restraining order, saying that I was trying to kill her. And that I wasstalking her.” There is no evidence whatsoever that any such request for a restraining order was ever served on Ms. Peters to provide any foundation whatsoever for the testimony. 5. Ms. Petersalso testified that the Easters had filed a lawsuit against her, but there is no evidence that the lawsuit was ever served on Ms. Doe. The only foundation for this must be hearsay. II. CALIFORNIA CIVIL CODE SEC. 47(B) BARS PLAINTIFFS FROM PRESENTING EVIDENCE OF COURT FILINGS AND ADMINISTRATIVE PROCEEDINGS AS WRONGFUL ACTS CAUSING DAMAGES. The Civil Code Section 47(b) litigation privilege “provides that a ‘publication or broadcast’ made as part of a ‘judicial proceeding’ is privileged.” (Action Apartment Assn., Inc. v. City ofSanta Monica (2007) 41 Cal.4th 1232, 1241.) “ ‘The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some connection or logical relation to the action.” ” [Citation.] The privilege ‘is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.” “(Action Apartment, at p. 1241, quoting Silberg v. Anderson (1990) 50 Cal.3d 205, 212; see also Hawran v. Hixson (2012) 209 Cal.App.4th 256, 282; Komarova v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324, 336 [communications with some relation to an anticipated lawsuit are within the privilege].) And judicial or quasi-judicial proceedings are “ ‘defined broadly to include “all 5 DEFENDANTS’ MOTION IN LIMINE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 kinds of truth-seeking proceedings,” including administrative, legislative and other official proceedings.” “(Wang v. Heck (2012) 203 Cal.App.4th 677, 684.) [T]he communication ¢ ccmust be “in furtherance of the objects2 ¢ of the proceeding, which is ‘ “part of the requirement that the communication be connected with, or have some logical relation to, the [proceeding], [13i.e., that it not be extraneous to the [proceeding].” (Hawran, at pp. 282-283, quoting Action Apartment, at p. 1251.) The litigation privilege is absolute and broadly applied regardless of malice. (Jacob B. v. County ofShasta (2007) 40 Cal.4th 948, 955.) Its purposes are to “ ‘afford litigants and witnesses free access to the courts without fear of being harassed subsequently by derivative tort actions, to encourage open channels of communication and zealous advocacy, to promote complete and truthful testimony, to give finality to judgments and to avoid unending 299litigation.”” (/d.) It promotes effective judicial proceedings by encouraging full communication with the courts. (/d.) Accordingly, doubts as to whether the privilege applies are resolved in its favor. (Hawran v. Hixson, supra, 209 Cal.App.4th at p. 283; Wang v. Heck, supra, 203 Cal.App.4th at p. 684.) Here, Plaintiffs may seek to introduce (1) a March 2, 2010 Request for Order To Stop Harassment filed by Jill Easter against Kelli Peters, (2) a March 12, 2010 summons and complaint against Kelli Peters brought by Kent Easter as guardian ad litem for his minor son, and (3) a April 22, 2010 letter to the Irvine Unified School District initiating a formal complaint, as well as (4) various letters and other communications to the Plaza Vista School and the Irvine Public Schools Foundation to further Defendants’ objectives of pursing their complaints about Ms. Peters’ conduct towards the Defendants’ son. The Plaintiffs must not be allowed to admit all ofthis information into evidence without at least a limiting instruction to 6 DEFENDANTS’ MOTION IN LIMINE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 admonish the jury from considering this evidence as harassing conduct or otherwise causing emotional distress for which the jury is being asked to award damages. III. PLAINTIFF BILL PETERS SHOULD NOT BE PERMITTED TO TESTIFY THAT HIS EMOTIONAL DISTRESS PREVENTED HIM FROM WORKING. During discovery, Plaintiff Bill Peters was asked to respond to Form Interrogatories. These Form Interrogatories including numbers 8.1 through 8.8 regarding loss of income and specific dates work was missed. Specifically, Plaintiff Bill Peters responded to number 8.3 (“State the last date before the INCIDENT that you worked for compensation”), number 8.5 (State the date you returned to work at each place of employment following the INCIDENT), and number 8.6 (“State the dates you did not work and for which you lost income as a result of the INCIDENT”) with the same response: N.A. [not applicable.] (See Declaration of Kent W. Easter, Ex. A.) Moreover, at numerous times throughout this case, Defendant Kent Easter has asked counsel for Plaintiffs for records supporting any lost wages by Mr. Peters. Counsel for Plaintiffs represented that he did not have any records and that Plaintiff Bill Peters was not claiming any lost wages in this action, meaning that “not applicable” meant not relevant to the claims or defenses in this action. (See Declaration of Kent W. Easter, 4 3.) Therefore, by representing that the form interrogatories calling for dates the Mr. Peters did not work, when he last worked, and when he returned to work were all “not applicable,” Mr. Peters was responding to discovery on the basis that missed work was not an issue in this case. Accordingly, Defendants seek an order excluding Mr. Peters or any other witness from testifying at trial that Mr. Peters was unable to attend work due to his emotional distress. Mr. Peters has not provided any discovery to enable Defendants to meaningfully cross-examine 7 DEFENDANTS’ MOTION IN LIMINE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 him if he were to now change his position at trial and testify that he has been so distressed that he has been unable to work due to the Defendants’ actions. A motion in limine to prevent the introduction of evidence not produced at trial is appropriate. Such is within the power ofthe trial court. The court has an inherent power to curb abuses and promote fair process that extends to the preclusion of evidence. (Peat v. Superior Court (1988) 200 Cal.App.3d 272, 289; see also Castaline v. City ofLos Angeles (1975) 47 Cal.App.3d 580, 592 (court has a “basic power to insure that all parties receive a fair trial” by precluding evidence); Clemens v. American Warranty Corp. (1987) 193 Cal.App.3d 444,451.) Indeed, “[o]ne of the principal purposes of civil discovery is to do away with ‘the sporting theory of litigation — namely, surprise at the trial. [Citation.]” (Thoren v. Johnston & Washer (1972) 29 Cal.App.3d 270, 274 (citing Chronicle Pub. Co. v. Superior Court (1960) 54 Cal.2d 548, 561) (upholding the exclusion ofthe testimony of a witness whose name was willfully omitted from an answer to an interrogatory during discovery).) Thus, an evidentiary sanction may be imposed when an answer given in discovery is “willfully false.” (Saxena v. Goffney, (2008) 159 Cal.App.4th 316,332; see New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1424-1426 [discussing cases approving nonmonetary sanctions for misuse of discovery process even if such sanctions not expressly authorized by statute].)” Whether Mr. Peters’ responses were “willfully false” may never be an issue if Mr. Peters does not contend that he was forced to miss any work. However, if Mr. Peters does attemptto testify otherwise, his discovery responses will then appear to have been willfully false and will have served to improperly blocked Defendants from gaining information to impeach Mr. Peters’ testimony. 8 DEFENDANTS’ MOTION IN LIMINE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. PLAINTIFFS SHOULD NOT QUESTION DEFENDANTS KENT EASTER AND JILL EASTER AND/OR SEEK TO INTRODUCE ANY EVIDENCE OF LIABILITY AGAINST KENT EASTER AND JILL EASTER. In orderto streamline this case for an efficient trial, the parties reached a stipulation regarding liability. This stipulation has been filed with the Court. Plaintiffs have represented that they will be filing a motion in limine seeking entry of an order adopting the stipulation, but as Defendants have not yet seen the motion in limine, Defendants also move in limine to implementthis stipulation to preclude spending limited trial time on issues ofliability that have been resolved by the stipulation. Only relevant evidence is admissible (Evid. Code § 350), and all relevant evidence is admissible unless excluded under the federal or California Constitution or by statute. (§ 351; see also Cal. Const., art. I, § 28, subd. (d).) Relevant evidence is defined in section 210 as evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” The test of relevance is whether the evidence tends “‘logically, naturally, and by reasonable inference’ to establish material facts such as identity, intent, or motive. [Citations.]” (People v. Garceau (1993) 6 Cal.4th 140, 176-177). Furthermore, “[i]f an issue has been removed from a case by an admission . . it is error to receive evidence which is material solely to the excluded matter.” (Fuentes v. Tucker (1947) 31 Cal.2d 1, 5.) An admission ofliability by a defendant "precludes the introduction of evidence ofliability unless it is relevant to some distinct issue remaining in the case. [Citation.] That is so even if . . . the party offering the evidence is deprived of an importanttactical advantage. Indeed, where the evidence is not relevant to any real issue, the advantage sought to be gained by its presentation must be recognized as unfair. Each side takes the risk that the ‘picture’ of the case seen by the jury may be an unfavorable decisional context. But neither 9 DEFENDANTS’ MOTION IN LIMINE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 side is entitled to litigate a nonexistent issue for no purpose other than to alter the decisional context in his favor.” (4/brecht v. Broughton (1970) 6 Cal.App.3d 173, 178.) Here, Defendants Kent Easter and Jill Easter have stipulated to liability and this caseis to be tried solely as a damages case. Therefore, the stipulation “precludes the introduction of evidence ofliability.” IV. CONCLUSION For all of the foregoing reasons, Defendants Kent Easter and Jill Easter requests that their motions in limine be granted in their entirety. Date: January 28, 2016 Respectfully Submitted, By: /S/ KENT EASTER Respectfully Submitted, By: /S/ JILL EASTER 10 DEFENDANTS’ MOTION IN LIMINE < v w O o > 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28