Tahsin Khairi vs. Abdul Kalim

Motion in Limine

Cal. Super. - 4th Dist.December 4, 2013

JAMES L. MILLER, ESQ. P.O. Box 195, 3345 Newport Bl #215 Newport Beach, CA 92662-0195 (949) 675-3590 facsimile (949) 675-3591 Attorney for Tahsin Khairi SBN:123944 SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER TAHSIN KHAIRI VS. Plaintiffs, ABDUL KALIM; IFIC etal. Defendants. Case No. 2013-00691139 MOTION IN LIMINE NO. 5, TO PRECLUDE DEFENSE COUNSEL FROM QUESTIONING ON, OR COMMENTING THAT KHAIRI'S DEPOSITION CORRECTION(S) INFER HIS DISHONESTY Trial DATE: April 11, 2016 TIME: 9:00 a.m. Hon. Linda Marks Dept. C10 TO THE PARTIES HEREIN AND THEIR ATTORNEYS OF RECORD: Pursuant to Evidence Code Section 352, Tahsin Khairi moves this court for an order that defense counsel be precluded from arguing, or questioning, or offering evidence on the topic that plaintiff has given false testimony in this matter since he corrected his deposition testimony. TAHSIN KHAIRI TESITIFED AT DEPOSITION THAT HE FIRST LEARNED OF THE SCHEME INVOLVING THE THEFT OF HIS CREDIT IDENTIFY (NOTARIZED FORGERIES) WHEN FINANCIAL PACIFIC BONDING COMPANY CONTACTED HIM ABOUT PAYING ITS OUTLAYS. THE DEFENSE SHOULD BE PRECLUDED FROM ARGUING KHAIRI WAS NOT TRUTHFUL Motion in Limine No 5 ~ Preclude Mention Depo Corrections 1 BY CHANGING THE YEAR (2012 TO 2013) THAT THIS OCCURED, AFTER CONSULTING THE CONTACT DOCUMENTS. A CHANGE THAT THE DEFENSE WAS NOTIFIED OF ALMOST A YEAR AGO. Attached to this motion is the relevant page (93) from the deposition testimony of Tahsin Khairi, which reads in pertinent part as follows: Q: When wasthe first time you found out that he [Jamal Deaifi] used your name without authorization? A: When the company was -- when the attorney from the indemnity called me and said, "You have to pay." Q: And when was that approximately? A: Right around April - - March/April time frame. March/April/May time frame. Q: Of? A: 2012 Q: 2012? A: (Witness nods.) What the record does not show was the witness's difficulty in being nailed down to which year. Relevant events in this matter go back to 2010, and the specific event, while in the plaintiff's mind as to how, was not precise as to the year, having occurred several years prior to the deposition. Plaintiff did remember details of how and where, but discovered some time after the deposition that he had been incorrect in stating that the year was 2012. Plaintiff checked the emails from FPIC's attorney, Joe McGowan, and discovered it actually happened in 2013. When this correction was realized, a letter with supporting documents was sent directly to the defense (See, Exhibit "2" hereto). Memories are not perfect in all details. This is a case where the credibility of the witnesses, which there are few of, is important. While Mr. Khairi may have misspoken in his deposition about the year of his discovery, he has not soughtto retract any of the Motion in Limine No. 5 - Preclude Mention Depo Corrections 2 other details set out over several pages, about this discovery and the conversation he had with Jamal Deaifi about it. He just changed the year to the correct one. The following authorities suggest that, on weight, the possibility of prejudice to the plaintiff is severe, while the probative value of this mistake, corrected long before trial and supported by documentation, is very slight: People v. Houston, 130 Cal. App. 4th 279, 29 Cal. Rptr. 3d 818 (1st Dist. 2005) (in striking requisite balance between probative value of evidence and danger of prejudice, court must consider relationship between evidence and relevant inferences to be drawn from it, whether evidence is relative to main or only collateral issue, and necessity of evidence to proponent’s case as well as statutory reasons for exclusion). Love v. Wolf, 226 Cal. App. 2d 378, 404, 38 Cal. Rptr. 183 (3d Dist. 1964) (“There are several counterbalancing factors which may move the court to exclude relevant evidence ... [including] the danger that the facts offered may unduly arouse the jury’s emotions of prejudice, hostility or sympathy ...”). Under these circumstances, it would be just for this court to not allow the defense to parade around contending that, due to just this one mistake - NOT A MISTRUTH - the plaintiff is a liar. Plaintiff did not lie about when he found out, he just forgot the exact year. The emails prove out the time frame (April-ish), and that he was contacted as plaintiff testified by the attorney for the indemnity company. Therefore, the court should order that the defense cannot question, argue or proffer evidence that, just because the plaintiff changed his deposition testimony to correctly reflect the truth, the plaintiff is not, or has not been, testifying truthfully in this matter. DATED: March 30, 2016 JangéL. Miller, for Khairi L Motion in Limine No. 5 - Preclude Mention Depo Corrections 3 DECLARATION OF JAMES L. MILLER I, James L. Miller, declare: I. 2. [ am plaintiff’s counsel and have personal knowledge of the following. Mr. Khairi was deposed on March 11, 2015, and pertinent pages from that transcript are attached hereto as Exhibit “1”. After he completed his deposition Mr. Khairi checked to see what year he had been notified by the attorney for the bonding company, Mr. McGowan, about the fact that it held a notarized signature on a Continuing Indemnity Agreement which bound plaintiff to pay deficiencies of SoCal Engineers on the public works projects covered by FPIC’s bonds. Since the year recalled by Mr. Khairi in his deposition was inaccurate, a letter was sent to defense counsel, attaching the email notifications referenced by Mr. Khairi in his deposition as the time when eh first learned ofthe claims against him for indemnity. Attached hereto as Exhibit “2” are true and correct copies of the letter advising of the year change, and the emails attached to that letter confirming that the correct year was 2013. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 31” day of March 2016 at Newport Beach, CAlifornia. JAdmes L. Miller Motion in Limine No. 5 —~ Preclude Mention of Depo Corrections 10 11 12 13 14 15 16 17 18 19 21 22 23 24 25 26 28 PROOF OF SERVICE State of California, County of Orange At the time of service, I was over the age of 18 years and not a party to this action, and an active member of the California Bar. My business address 1s P.O. Box 195, Newport Beach, CA 92662-0195. + To: "alkhairi2000@yahoo.com” Cc: "Laurie Hants’ Sent: Monday, April 15, 2013 2:30 PM Subject: FW: SoCal Engineers’ GIA and Notary pages Tashin Mis. find a copy of the indemnity agreement we discussed. Pis. confirm whether this is your signature, and, if not, who signed your name, Thanks for your assistance. ioe McGowan Joseph ©. McGowan | Shareholder ROGERS JOSEPH O'DONNELL | a Professional Law Corporation 311 Cabfomia Street 10th fi { San Francisco, CA 94104 365.5381 direct | 415.559.1907 cell 256. 2808 1main | 415.056.6457 fax imcaowan@rio.com WWW.F]0.COM SPIENT: THIS E-MAIL IS MEANT FOR ONLY THE INTENDED RECIPIENT(S) OF THE TRANSMISSION AND MAY BE GED BY LAW. IF YOU RECEIVED THIS E-MAIL IN ERROR, PLEASE NOTIFY US IMMEDIATELY. DO NOT PRINT, COPY, OR SISSEMINATE IT. PLEASE DELETE THE E-MAIL FROM YOUR SYSTEM. THANK YOU. From: Hants, Laurie [mailto:LHants@unitedfiregroup.com] Sent: Tuesday, February 26, 2013 9:42 AM To: Joseph C. McGowan Subject: SoCal Engineers’ GIA and Notary pages Sood morning Joe, Attached 1s the GIA and the notary pages we have for SoCal Engineers. Let me know what you think about this matter. Thanks, Laune From: Sharp@financialpacific.com [mailto: Sharp@financialpacific.com] On Behalf Of Sharp@ Sent: Tuesday, February 26, 2013 9:34 AM To: Hants Laurie Subject: Scanned image from MX-4110N This emat may contain confidential, copyrighted or privileged information. If you are not the intended recipient orif you have received this email in error, please notify the sender immediately and destroy this email. Any unauthorized copying, disclosure or distribution of the matenal in this email is strictly forbidden. United Fire Group cannot warrant the integrity of this communication, or that it is void of errors, viruses ar interference. As the tntemet is not a fully secure environment, United Fire Group cannot ensure that this or any other email has not been interfered with during transmission. The sender, therefore, does not accept liability for any errors or omissions in the contents of this message that arise because of email transmission. From : t k Mon, Jun 15, 2015 04:15 PM Subject : Fw: SoCal Engineers’ GIA and Notary pages To : Jiimesq Reply To : t k ----- Forwarded Message ----- From: Joseph C. McGowan To: "alkhain2000@yahoo.com” Cc: 'Laune Hants! Sent: Monday, April 15, 2013 2:30 PM Subject: FW: SoCal Engineers’ GIA and Notary pages #1 attachment! i i! Thanks for your assistance. Joe McGowan Joseph C. McGowan | Shareholder ROGERS JOSEPH O'DONNELL | a Professional Law Corporation jmcgowan@rig.com WWW,]0Q.COM NOTICE TO RECIPIENT. THIS E-MAIL IS MEANT FOR ONLY THE INTENDED RECIPIENT(S) OF THE TRANSMISSION AND MAY BE PRIVILEGED BY LAW. If YOU RECEIVED THIS E-MAIL IN ERROR, PLEASE NOTIFY US IMMEDIATELY. DO NOT PRINT, COPY, OR DISSEMINATE IT. PLEASE DELETE THE E-MAIL FROM YOUR SYSTEM. THANK YOU. From: Hants, Laurie [mailto: LHants@unitedfiregroup.com] Sent: Tuesday, February 26, 2013 9:42 AM Ta: Joseph C. McGowan Subject: SoCal Engineers’ GIA and Notary pages COO MIOMTING 10, the GIA and the notary pages we have for SoCal Engineers. Let me know what you think about this | Thanks, Laune From: Sharp@finandalpacific.com [mailto: Sharp@financialpacific.com] On Behalf Of Sharp@ Sent: Tuesday, February 26, 2013 9:34 AM To: Hants Laurie Subject: Scanned image from MX-4110N | This email may contain confidential, copynghted or privileged information. i you are not the intended recipient or if you have received this email in enor, please notify the sender immediately and destroy this email. Any unauthorized copying, disclosure or distribution of the maternal in this email is strictly forbidden. United Fire Group cannot warrant the integrity of this communication, or that it is void of errors, viruses or interference. As the Intemetis not a fully secure environment, United Fire Group cannot ensure that this or any other email has not been interfered with |during transmission. The sender, therefore, does not accept liability for any errors or omissions in the contents of this message that arise ; because of email transmission. «e 0000616f0000.pdf 3 MB