Tracey L. Downey-Racen vs. Healthy Gourmet, LLC

Opposition

Cal. Super. - 4th Dist.December 19, 2012

OO 0 NN A Ln BA W N ND N N N N N N N N e e e e e e e m e e 0 N N L t BA W N = O D0 N N S Y B R E W = Oo Rosemary Amezcua-Moll SBN 223875 rose @amalaw.net Sarah J Nowels, SBN 273471 sarah @amalaw.net AMEZCUA-MOLL & ASSOCIATES, P.C. 1122 East Lincoln Avenue, Suite 203 Orange, CA 92865 PHONE:714-288-2826 FAX:714-464-4536 ELECTRONICALLY FILED Superior Court of California, County of Orange 08M0/201T at 02:00:00 A Clerk of the Superior Court By James hl Haines, Deputy Clerk Attorneys for Plaintiff: TRACEY L. DOWNEY-RACEN SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE TRACEY L. DOWNEY-RACEN, an Individual, Plaintiff, VS. HEALTHY GOURMET, LLC, a California Limited Liability Company, dba SUSAN’S HEALTHY GOURMET; XAN CONFECTIONS, INC., a California Corporation; SUSAN D. JOHNSON, an individual; CATHLEEN JOHNSON ANTHONY, an individual; JOHN L. JOHNSON, an individual; and DOES 1 through 25, Inclusive), Defendants. Unlimited Civil Case Case No.: 30-2012-00619381-CU-BC-CJC Assigned for all purposes to: The Honorable Theodore Howard, Department C18 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 2. Filed concurrently herewith 1. OMNIBUS DECLARATION OF ROSEMARY AMEZCUA-MOLL Complaint Filed: December 19, 2012 Trial Date: February 2, 2015 (Phase I) August 7, 2017 (Phase II) TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD: The Law Offices of AMEZCUA-MOLL & ASSOCIATES, P.C. on behalf of Plaintiff) TRACEY L. DOWNEY-RACEN, respectfully submits her opposition to Defendants, Healthy Gourmet, LLC, Susan D. Johnson and Cathleen Johnson Anthony (collectively hereinafter "Defendants") Motion in Limine No. 2, Memorandum of Points and Authorities. This Opposition is based on the attached Memorandum of Points and Authorities, all records and pleadings in this matter and on such other evidence as presented at the time of the hearing. PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 2 Case No.: 30-2012-00619381 The Honorable Theodore Howard, C18 OO 0 NN A Ln BA W N ND N N N N N N N N e e e e e e e m e e 0 N N L t BA W N = O D0 N N S Y B R E W = Oo MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Defendants, in their Motion in Limine No. 2, seek to exclude any and all evidence, references to evidence, testimony, or argument relating to non-party LifeSpring Nutrition (“LifeSpring”). As a procedural matter, Defendants did not fully comply with Local Rule 317 as detailed further below. Without waiving the right to have the court sanction Defendants pursuant to Local Rule 381 for untimely compliance, and to the extent the court accepts Defendants’ untimely Motions in Limines 2-9, Plaintiff hereby opposes Defendants’ Motion in Limine for this reason and the reasons set forth below. II. LEGAL ARGUMENT A. LEGAL STANDARD APPLICABLE TO MOTIONS IN LIMINE “In recent years, the use of motions in Limine has become more prevalent, primarily by defense counsel to address a number of perceived concerns. It is not uncommon for the trial court to be presented with in excess of 10 separate motions in Limine.” Kelly v. New West Federal Savings (1996) 49 Cal. App. 4th 659, 669. Motions in Limine are proper in order to allow “the trial court to rule on a specific objection to particular evidence.” Id. at 671. “It may be difficult to specify exactly what evidence is the subject matter of the motion until that evidence is offered . . . [because] until the evidence is actually offered, and the court is aware of its relevance in context, its probative value, and its potential for prejudice . . . the court cannot intelligently rule on admissibility.” Id. “The usual purpose of motions in Limine is to preclude the presentation of evidence deemed inadmissible and prejudicial by the moving party.” 3 Witkin, Cal. Evidence, § 2011 at 1969. B. REQUEST TO STRIKE MOTION IN LIMINE NO. 2 FOR FAILING TO ADHERE TO ISSUE CONFERENCE GUIDELINES SET FORTH IN LOCAL RULE 317 Defendants failed to adhere to the guidelines set forth in Local Rule 317, which provides: “An issue conference will be required in all cases at least 10 days prior to trial, at which time the parties are to meet and confer and execute necessary documents as listed below.” (Super. Ct, 3. PLAINTIFE’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 2 Case No.: 30-2012-00619381 The Honorable Theodore Howard, C18 OO 0 NN A Ln BA W N ND N N N N N N N N e e e e e e e m e e 0 N N L t BA W N = O D0 N N S Y B R E W = Oo Orange County, Local Rules, rule 317.) Included in this list of documents is “all Motions in| Limine.” (Id.) Plaintiff's and Defendants’ counsel conducted their Local Rule 317 Issue Conference on Thursday, July 27, 2017, exactly eleven days prior to the August 7, 2017 scheduled trial date. However, Defendants did not submit their Motions in Limine to Plaintiff until three days prior to the trial date, on Friday, August 4, 2017, by means of electronic service. In submitting the motions on August 4, 2017, the Defendants failed to conduct the issugj conference properly as required by Local Rule 317. Under Local Rule 317, “[f]ailure to conduct the issue conference as required may result in sanctions pursuant to Rule 381.” (Super. Ct. Orange County, Local Rules, rule 317.) Local Rule 381(A) states: “[I]f the court finds any counsel, a party represented by counsel, or a self-represented party has failed to comply with these local court rules or has not proceeded with due diligence in preparing the case for trial, the court, on motion of a party or on its own motion, may: A. Strike all or any part of any pleading of that party .. ..” (Super, Ct. Orange County, Local Rules, rule 381.) Pursuant to Local Rule 381, Plaintiff therefore moves to strike all Defendants’ Motions in Limine, in addition to any other sanctions under Local Rule 381 that the Court, in its discretion, finds are applicable. C. PLAINTIFF SHOULD BE PERMITTED TO REFERENCE LIFESPRING As noted in California Evidence Code § 351: “Except as otherwise provided by statute, all relevant evidence is admissible.” (Evid. Code, § 351.) Under California Evidence Code § 210, “‘Relevant evidence’ means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210). Here, evidence regarding LifeSpring is both relevant and material to Plaintiff’s case, LifeSpring is owned by Defendants Susan Johnson and Cathleen Johnson Anthony, who also co- own Susan’s Healthy Gourmet and Xan Confections, Inc. LifeSpring operates out of the same location as Defendant Susan’s Healthy Gourmet and former-Defendant Xan Confections, Inc, Numerous facts about LifeSpring are foundational for Plaintiff’s case and are necessary to create a broader picture for the court and the jury. Furthermore, LifeSpring, Susan’s Healthy Gourmet, and Xan Confections, Inc. all share the same worker's compensation insurance, and Xan Confections has made several uncategorized and unexplained payments to LifeSpring. _4- PLAINTIFE’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 2 Case No.: 30-2012-00619381 The Honorable Theodore Howard, C18 oO 0 N N nn BA W N N N N N N N N N N N mm e m e m e m p m em e m p m pe pe c o NI O N Wn kA W O N D = O 0 N N N N R E W N = O III. CONCLUSION For the reasons contained herein, Plaintiff respectfully requests that Defendants’ Motion in Limine No. 2 be denied in total. Dated: August 9, 2017 AMEZCUA-MOLL & ASSOCIATES, P.C. BY Bisnis rantronc nA Rosemary Amezcua-Moll, Esq. Sarah J. Nowels, Esq. Attorneys for Plaintiff, Tracey Downey-Racen -5- PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 2 Case No.: 30-2012-00619381 The Honorable Theodore Howard, C18 oO 0 N N nn BA W N N N N N N N N N N N mm e m e m e m p m em e m p m pe pe c o NI O N Wn kA W O N D = O 0 N N N N R E W N = O STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. I am over the age of 18 and] not a party to the within action; my business address is 1122 East Lincoln Ave., Suite 203, Orange, CA. 92865. On August 9, 2017, I served the foregoing document described herein as PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 2, on the interested parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows, OR emailing to the recipients’ addresses as indicated below VASKO MITZEV, vmitzev@ferruzzo.com FERRUZZO & FERRUZZO, LLP A Limited Liability Partnership 3737 Birch Street, Suite 400 Newport Beach, CA 92660 (949) 608-6900 [] BY MAIL. At 1122 East Lincoln Ave., Suite 203, Orange, CA. 92865, the envelope(s) was sealed and placed for deposit with the United States Postal Service, for collection and mailing onl that date, following the firm's ordinary business practices. I am aware that on Motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than| one day after date of deposit for mailing affidavit. [] BY FAX. In addition to service by mail as set forth above, a copy of said document(s) were also delivered by facsimile transmission to the addressee pursuant to Code of Civil Procedure §1013(e). [] BY PERSONAL SERVICE. I caused said document(s) to be hand-delivered to the addressee pursuant to Code of Civil Procedure §1011. [] BY EXPRESS MAIL. I caused said document(s) to be deposited in a box or other facility] regularly maintained by the express service carrier providing overnight delivery pursuant to Code of Civil Procedure §1013(c). x BY ELECTRONIC MAIL. I caused said document(s) to be delivered by electronic service pursuant to an agreement between the parties and Code of Civil Procedure §1010.6(a)(2). I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed August 9, 2017, in Orange County, California. Sarah Nowels | oy -1- PROOF OF SERVICE