Jerome Dunbar Stark vs. Richard Moree

Motion in Limine

Cal. Super. - 4th Dist.February 20, 2014

HSH L N Oo 0 NN O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 004.510:357088v1 [Exempt from Filing Fee per Government Code §6103] ELECTRONICALLY FILED Superior Court of California, County of Orange 10/26/2018 at 08:14:00 AM Clerk of the Superior Court By Christin Dawson, Deputy Clerk William L. Haluck, Esq. (SBN 80146) Michael J. Rossiter, Esq. (SBN 258410) Koeller, Nebeker, Carlson & Haluck, LLP 3 Park Plaza, Suite 1500 Irvine, CA 92614-8558 949-864-3400; fax: 949-864-9000 Attorneys for Defendants, SPECIAL SHERIFF OFFICER RICHARD MOREE; SPECIAL SHERIFF OFFICER OLIVIA SANCHEZ; INVESTIGATOR T. NGUYEN; DEPUTY JAMES PORRAS (erroneously sued as SPECIAL SHERIFF OFFICER JAMES PORRAS); ORANGE COUNTY SHERIFF'S DEPARTMENT and COUNTY OF ORANGE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE Case No. 30-2014-00706060-CU-CR-CJC Assigned for All Purposes to: Judge James L. Crandall Dept. C-33 JEROME DUNBAR STARK, an individual, Plaintiff, Vi SPECIAL SHERIFF OFFICER RICHARD MOREE; SPECIAL SHERIFF OFFICER OLIVIA SANCHEZ; INVESTIGATOR T. NGUYEN; SPECIAL OFFICER JAMES PORRAS; ORANGE COUNTY SHERIFF'S DEFENDANTS’ MOTION IN LIMINE NO. 3 TO EXCLUDE EXPERTS NOT PREVIOUSLY DISCLOSED; DECLARATION OF MICHAEL J. ROSSITER IN SUPPORT THEREOF DEPARTMENT, a public entity which is a subdivision of the County of Orange, State of California; COUNTY OF ORANGE, STATE OF CALIFORNIA, and DOES 1-100, 2/20/14 10/29/18 Action Date: Trial Date: Defendants. COMES NOW Defendants SPECIAL SHERIFF OFFICER RICHARD MOREE; SPECIAL SHERIFF OFFICER OLIVIA SANCHEZ; INVESTIGATOR T. NGUYEN; DEPUTY JAMES PORRAS (erroneously sued as SPECIAL SHERIFF OFFICER JAMES PORRAS); ORANGE COUNTY SHERIFF'S DEPARTMENT and COUNTY OF ORANGE (hereinafter “Defendants™) and hereby submit the following Motion in Limine No. 3 to Exclude Expert Witnesses Not Previously Disclosed: I 1 DEFENDANTS’ MOTION IN LIMINE NO. 3 TO EXCLUDE EXPERTS NOT DISCLOSED H W © © 9 10 11 5 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 004.510:357088v1 1. PLAINTIFF DID NOT DESIGNATE ANY EXPERTS. On August 20, 2018, Defendants served on Plaintiff a demand for expert designation in compliance with California Code of Civil Procedure § 2034.210, et seq. (Declaration of Michael Rossiter (Rossiter Dec. at § 2.) On September 14, 2018, Defendants served on Plaintiff their designation of experts pursuant to Code of Civil Procedure § 2034.230—designating a single expert as to Plaintiffs financial records. (Rossiter Dec. at § 3.) To date, Plaintiff has not served any document that would indicate that he intends to call an expert witness. (Rossiter Decl. at 14.) 2. PLAINTIFF MUST BE PRECLUDED FROM PRESENTING ANY EXPERT OPINION TESTIMONY California Civil Procedure Code § 2034.300 provides in pertinent part: “...[T]he trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following: (a) List the witness as an expert under § 2034.260....” Several California decisions have addressed the failure to properly designate expert witnesses with each of those cases suggesting that the failure to properly designate should result in exclusion of the expert testimony. See, Schreiber v. Estate of Kaiser, 22 Cal.4th 31, 34 (1999); Kalaba v. Gray, 95 Cal.App.4th 1416, 1420 (2002); Bonds v. Roy, 20 Cal.4th 140, 145-46 (1999). Accordingly, because Plaintiff has not designated any expert witnesses, Defendants respectfully request an order precluding Plaintiff from introducing any expert witness testimony at trial. This exclusion should apply to any effort by Plaintiff himself or any of his witnesses to testify as to any expert opinions. 3. CONCLUSION. Because Plaintiff has not designated any expert witnesses, Defendants should be able to reasonably rely on that representation and should not be surprised at trial if and when Plaintiff attempts to elicit or submit expert testimony. Defendants respectfully request that this Court issue an order excluding any expert testimony or opinions offered by Plaintiff. 111 111 111 2 DEFENDANTS’ MOTION IN LIMINE NO. 3 TO EXCLUDE EXPERTS NOT DISCLOSED EN Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 004.510:357088v1 DATED: October 18, 2018 Koeller, Nebeker, Carlson & Haluck, LLP UL [ess — 3 William L. Haluck, Esq. ’ Michael J. Rossiter, Esq. Attorneys for Defendants, SPECIAL SHERIFF OFFICER RICHARD MOREE; SPECIAL SHERIFF OFFICER OLIVIA SANCHEZ; INVESTIGATOR T. NGUYEN; DEPUTY JAMES PORRAS (erroneously sued as SPECIAL SHERIFF OFFICER JAMES PORRAS); ORANGE COUNTY SHERIFF'S DEPARTMENT and COUNTY OF ORANGE DEFENDANTS’ MOTION IN LIMINE NO. 3 TO EXCLUDE EXPERTS NOT DISCLOSED EE N O O © 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 004.510:357088v1 DECLARATION OF MICHAEL J. ROSSITER 1s I am an attorney at law duly authorized to practice law before all the courts of the State of California and I am a partner in the law firm Koeller, Nebeker, Carlson & Haluck, LLP, attorneys of record for Defendants in this matter. Except as the context indicates, I have personal firsthand knowledge of the facts set forth herein and would competently testify to the truth thereof if called as a witness. 2. On or about August 20, 2018, Defendants served on Plaintiffs a demand for expert designation in compliance with California Code of Civil Procedure § 2034.210, ef seq. 3 On September 14, 2018, Defendants served on Plaintiff their designation of experts pursuant to Code of Civil Procedure § 2034.230—designating a single expert as to Plaintiff’s financial records. 4. To date, Plaintiff has not served any document that would indicate that he intends to call an expert witness. I declare under penalty of perjury, under the laws of the State of California, that the foregoing is true and correct. Executed this /8 day of October 2018, at Irvine, California TUL, JS Michael J. Rossiter- Declarant 4 DEFENDANTS’ MOTION IN LIMINE NO. 3 TO EXCLUDE EXPERTS NOT DISCLOSED WwW O N OO © uN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 004.510:357088v1 PROOF OF SERVICE -- CCP 1013A(3) STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the City of Irvine, County of Orange, State of California. I am over the age of 18 years and not a party to the within action. My business address is 3 Park Plaza, Suite 1500, Irvine, California 92614. On October 18, 2018, I served the within document, described as DEFENDANTS’ MOTION IN LIMINE NO. 3 TO EXCLUDE EXPERTS NOT PREVIOUSLY DISCLOSED on the interested parties in this action by placing [] the original [X] a true copy in a separate sealed envelope addressed to the following address: Kenneth A. Bryant, Esq. BRYANT & BRYANT 505 N. Tustin Ave., Ste. 104 Santa Ana, CA 92705 (714) 558-7887 FAX (714) 542-4989 bryant.bryant@sbcglobal.net Attorneys for Plaintiff u BY MAIL — I am readily familiar with Koeller Nebeker Carlson & Haluck, LLP’s practice for collection and processing of documents for mailing with the United States Postal Service. I caused such document(s) to be placed in a sealed envelope, addressed to the person(s) on whom it is to be delivered pursuant to the attached service list with (*) next to the name, with postage thereon fully prepaid, to be deposited with the United States mail at Irvine, California that same day in the ordinary course of business. [CCP §1013] [] BY ELECTRONIC FILING: I electronically filed with the Clerk of the Court a true and correct copy of the original as indicated above, and a Notice of Electronic Filing (NEF) is automatically generated by One Legal system and sent by e-mail to all attorneys in this case. BY CERTIFIED MAIL/RETURN RECEIPT REQUESTED — I am readily familiar with Koeller Nebeker Carlson & Haluck, LLP’s practice for collection and processing of documents for mailing via certified mail with the United States Postal Service. I caused such document(s) to be placed in a sealed envelope, addressed to the person(s) on whom it is to be delivered pursuant to the attached service list, with postage thereon fully prepaid, marked certified and return receipt requested, to be deposited with the United States mail at Irvine, California that same day in the ordinary course of business. [CCP §11] BY OVERNITE MAIL - I am readily familiar with Koeller Nebeker Carlson & Haluck, LLP’s practice for collection and processing of documents for mailing via overnight delivery. I caused such document(s) to be placed in a sealed envelope designated by the overnite service carrier, addressed to the person(s) on whom it is to be served pursuant to the attached service list, and deposited said envelope in a box or other facility regularly maintained by the overnite service carrier with delivery fees paid or provided for. [CCP §1013(c)] ] BY E-MAIL OR ELECTRONIC TRANSMISSION — Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the document(s) to be sent to the persons at the e-mail addresses listed above. 1 did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. [CCP § 1010.6(a)(6)] 5 DEFENDANTS’ MOTION IN LIMINE NO. 3 TO EXCLUDE EXPERTS NOT DISCLOSED ~~ ww © © 39 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 004.510:357088v1 Hd BY PERSONAL SERVICE — I caused the document(s) described herein to be personally served. [CCP §1011(a)] BY FACSIMILE - I caused the document(s) described herein to be transmitted from facsimile number 949-864-9000 to the facsimile number(s) for each party indicated on the attached service list. [CCP §1013(e)] STATE - I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on October 18, 2018, at Irvine, California. JL feos "Michael J. Rossiter 6 DEFENDANTS’ MOTION IN LIMINE NO. 3 TO EXCLUDE EXPERTS NOT DISCLOSED