Patient Focused Management, Inc. vs. Pro-Neuro Services, LLC

Motion in Limine

Cal. Super. - 4th Dist.July 1, 2015

ee 0 Na Sa A W N N O N N N N N N N em em em em em m t e m em em e d a A Wn A W N Em S Y N N N R W N = Michael J. Armenta (SBN 219762) Arthur Javier (SBN 259017) ARMENTA LAW 6 N. Central Avenue Upland, CA 91786 Telephone: (909) 931-3260 Facsimile: (909) 931-3261 ELECTRONICALLY FILED Superior Court of California, County of Orange 03/27/2017 at 06:02:00 Ph Clerk of the Superior Court By Angelina Mguyen-Do, Deputy Clerk Attorney for Defendants, JOSEPH J. WRIGHT, CONQUEST MEDICAL, INC., PRO HOLDINGS, LLC and Defendant/Cross-Complainant PRO-NEURO SERVICES, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF ORANGE, CENTRAL JUSTICE CENTER PATIENT FOCUSED MANAGEMENT, INC,, a California corporation, Plaintiff, VS. PRO-NEURO SERVICES, LLC, a California Limited Liability Company; PRO-EPIC, LLC, a California Limited Liability Company; CONQUEST MEDICAL, INC., a California corporation; PACIFIC BILLING SOLUTIONS, LLC, a California limited liability company; JOSEPH J. WRIGHT, an individual; and DOES 1 through 50, inclusive, Defendants. Case No. 30-2015-00796473-CU-BT-CJC [Assigned for all Purpose to the Honorable James L. Crandall, Dept. C33] NOTICE OF MOTION AND MOTION IN LIMINE NO. 2 EXCLUDING EVIDENCE NOT PREVIOUSLY IDENTIFIED OR PRODUCED BY PLAINTIFF/CROSS- DEFENDANTS OR SUBPOENAED WITNESS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF MICHAEL J. ARMENTA IN SUPPORT THEREOF. Date: April 3,2017 Time: 8:30 a.m. Dept.: C33 AND RELATED CROSS-ACTION N e ” Ne w” nt” N g c t a en t “s a “w a? “se “s at “ a n “ e t “ s t u t “ w e “ u t “ u s “u s us eum “ s t “ a t “u st “o ut ? “w u COME NOW Defendants, JOSEPH J. WRIGHT, CONQUEST MEDICAL, INC., PRO HOLDINGS, LLC and Defendant/Cross-Complainant PRO-NEURO SERVICES, LLC before trial and selection of the jury, and move the Court, in limine, for an order to exclude any evidence at trial that was not previously identified or produced by Plaintiff/Cross-Defendant Patient Focused Management, Inc. and -1- DEFENDANTS/CROSS-COMPLAINANT’S MOTION IN LIMINE NO. 2 e e 9 S N n t AR W N B R O N N R N N N N N em mm mm em mk mk md m d mk LL 9 S N Nn EAE W N = S d S N Em W N Cross-Defendant, Tony Tang or produced or identified by Plaintiff/Cross-Defendants or subpoenaed witness Dr. Henry Tang. This Motion will be based upon the following grounds: 8 Any such evidence or witnesses would constitute an unfair surprise upon Defendants, JOSEPH J. WRIGHT, CONQUEST MEDICAL, INC., PRO HOLDINGS, LLC and Defendant/Cross- Complainant PRO-NEURO SERVICES, LLC as they were not previously identified in responses to discovery propounded and would therefore be highly prejudicial to Defendants, JOSEPH J. WRIGHT, CONQUEST MEDICAL, INC., PRO HOLDINGS, LLC and Defendant/Cross-Complainant PRO- NEURO SERVICES, LLC's preparation of a proper defense in this matter. The foregoing Motion is based upon the attached Memorandum of Points and Authorities, all papers and pleadings filed in this matter, as well as any other documentary or testimonial evidence which may be presented at the hearing of said objections. Dated: March 23. 2017 ARMENTA LAW By: ‘Michael J. Armenta Attorney for Defendants, JOSEPH J. WRIGHT, CONQUEST MEDICAL, INC., PRO HOLDINGS, LLC and Defendant/Cross-Complainant, PRO- NEURO SERVICES, LLC 22- DEFENDANTS/CROSS-COMPLAINANT’S MOTION IN LIMINE NO. 2 Oo 0 N N Aa W N N O O N N N N N N N N em em m l em em e d e d pe ed mk e d RR ON SN nn EA W N = S O 0 d NN E W N = Oo MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION Defendants, JOSEPH J. WRIGHT, CONQUEST MEDICAL, INC., PRO HOLDINGS, LLC and Defendant/Cross-Complainant PRO-NEURO SERVICES, LLC (hereinafter "Defendants/Cross- Complainant") hereby apply for an order to exclude at trial any witnesses or evidence not previously identified by Plaintiff/Cross-Defendant PATIENT FOCUSED MANAGEMENT, INC. and Cross- defendant TONY TANG (hereinafter "Plaintiff/Cross-Defendants"), in responses to discovery propounded by Defendants/Cross-Complainants or produced or identified by previously subpoenaed witnesses, including but not limited to, Dr. Henry Tang. Such evidence or witnesses would constitute an unfair surprise upon Cross-Defendant thereby prejudicing Defendants/Cross-Complainant’s ability to prepare a proper defense in this matter. IL THE COURT HAS INHERENT AUTHORITY TO GRANT MOTIONS IN LIMINE. The authority of the courts to grant motions in limine has long been recognized in practice and by case law. See People v. Morris (1991) 53 Cal.3d 152, 288 (disapproved on other grounds); see also Clemens v. American Warranty Corp. (1987) Cal.App.3d 444, 451. IV. ANY EVIDENCE OR WITNESSES NOT PREVIOUSLY IDENTIFIED OR PRODUCED BY PLAINTIFF AND/OR PREVIOUSLY SUBPOENAED WITNESSES IN RESPONSES TO DISCOVERY AND/OR SUBPOENA SHOULD BE EXCLUDED FROM USE AT TRIAL. One of the principle purposes of civil discovery is to do away with “the sporting theory of litigation — namely surprise at trial.” Chronicle Publishing Co. v. Superior Court (1960) 54 Cal.2nd 548, 561. The purpose of discovery is to accomplish when “greater assistance to the parties in ascertaining the truth and in checking and preventing perjury;” and by providing “an effective means of detecting and exposing false, fraudulent and sham claimS and defenses.” Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 376. In the present action, Defendant/Cross-Complainant believes that Plaintiff/Cross-Defendants will attempt to introduce documents and witnesses into evidence in this matter which Plaintiff/Cross- Defendants have not previously disclosed or produced in discovery in this matter. However, such -3- DEFENDANTS/CROSS-COMPLAINANT’S MOTION IN LIMINE NO. 2 Vo Ww NN S N Re W N = N O N N N O N O R N O R N N O N em em em e m em em je t e d e d e d QR 3 S N U T Ea W N =m O Y 0 d N N E W N = D A p- actions will be highly improper. Code of Civil Procedure §§ 2030 and 2031 require that a party served with the discovery request make a diligent search and reasonable inquiry in an effort to comply with the discovery propounded upon them. To allow Plaintiff/Cross-Defendants to introduce documents and to present witnesses at the time of trial not previously identified results in an unfair surprise committed against Defendants/Cross-Complainant and is highly prejudicial to Defendants/Cross-Complainant’s preparation and evaluation of the alleged claims against them, thus affecting Defendant/Cross-Complainant’s ability to properly prepare a defense in this matter. Specifically, Defendants/Cross-Complainant propounded to discovery and Plaintiff/Cross-Defendants produced approximately two hundred relevant pages and over 800 irrelevant pages of documentation related to the performance of monitoring services by Patient Focused Neurology, Inc. with other monitors and completely unrelated to this case. Third party witness, Dr. Henry Tang, in response to a subpoena produced over 1500 pages of documents that he believed were the total documents related to his reads and this case. The Plaintiff’s complaint alleges that Dr. Henry Tang performed all of the work which was not compensated, giving rise to this case. Therefore, Defendants/Cross-Complainant request that this Court exclude evidence of any reads that are not identified in the Plaintiff/Cross- Defendants’ production or the production of third party witness, Dr. Henry Tang. To allow Plaintiff/Cross-Defendants to introduce any evidence not previously produced would create a great injustice and be contrary to the principle purposes of discovery, which was to eliminate surprise at trial. See Chronicle Publishing Company v. Superior Court supra, 54 Cal.2nd at 561. Accordingly Defendants/Cross-Complainant respectfully submit that the court exclude any evidence that Plaintiff/Cross-Defendants have clearly not previously produced. III. CONCLUSION Based upon the foregoing, Defendants, JOSEPH J. WRIGHT, CONQUEST MEDICAL, INC,, PRO HOLDINGS, LLC and Defendant/Cross-Complainant PRO-NEURO SERVICES, LLC respectfully request that this court issue an order excluding any and all evidence of reads which was not produced or identified by Plaintiff/Cross-Defendants in their responses to requests for production of documents or by third party witness Dr. Henry Tang in his response to a subpoena for production of documents. -4- DEFENDANTS/CROSS-COMPLAINANT’S MOTION IN LIMINE NO. 2 eo 0 9 S nt AR W N N O N N N N N RN N N DN mm mm mm mm mk mk mk mm je m pe d CC 9 S N Wn AE W N = NN S N E W N = o Dated: March 23, 2017 Respectfully submitted, ARMENTA LAW — Michael J. Armenta Attorney for Defendants, JOSEPH J. WRIGHT, CONQUEST MEDICAL, INC., PRO HOLDINGS, LLC and Defendant/Cross-Complainant, PRO- NEURO SERVICES, LLC -5- DEFENDANTS/CROSS-COMPLAINANT’S MOTION IN LIMINE NO. 2 Le 9 S N n t RAR W N BN RN N N N RN RN R N R e m mm e m e m md e d e d e k e d e k LL 9 S N Nn AE W N = S O NN S N E W N =e DECLARATION OF MICHAEL J. ARMENTA I, Michael J. Armenta, declare as follows: 1 That I am an attorney at law duly licensed to practice law before all the courts of the State of California, and am the principle of Armenta Law, attorneys of record for Defendants, JOSEPH J. WRIGHT, CONQUEST MEDICAL, INC., PRO HOLDINGS, LLC and Defendant/Cross-Complainant PRO-NEURO SERVICES, LLC, parties to this action. 2 That if called upon to testify as to testify as to the matters stated herein, I could and would competently do so, based upon my participation in the litigation to date and upon my review of records and files in the matter. 3. Plaintiff’s document production in this matter consisted of less than two hundred pages relevant to this case and over 800 pages of documents unrelated to this matter. Dr. Henry Tang produced over 1500 documents in response to a subpoena for documents by my office requesting all documents relevant to his work that is relevant to this case. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 23rd day of March, 2017 at Upland, California. “Michael J. Armenta 6s DEFENDANTS/CROSS-COMPLAINANT’S MOTION IN LIMINE NO. 2 Le 0 9 S n t AR W N BN O N N N N N N RN DN m m e m em em em e k mm md e d e k LL 9 S N Nn A W N = 8 0 N N E W N = PROOF OF SERVICE Code of Civ. Proc. 1013a(3) STATE OF CALIFORNIA ) ) SS. COUNTY OF SAN BERNARDINO ) I, the undersigned, declare that I am employed in the County of San Bernardino; I am over the age of 18 years and not a party to the within action; my business address is 6 N. Central Avenue, Upland, California 91786. On March 24, 2017, I served the foregoing document described as: EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME TO HEAR THE NOTICE OF MOTION AND MOTION IN LIMINE NO. 2 EXCLUDING EVIDENCE NOT PREVIOUSLY IDENTIFIED OR PRODUCED; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF MICHAEL J. ARMENTA IN SUPPORT THEREOF. John Y. Igarashi, Esq. 18021 Cowan Irvine, California 92614 Telephone: (949) 667-0150 Facsimile: (949) 340-2726 Attorney for Plaintiff = BY PERSONAL SERVICE. o BY ELECTRONIC SERVICE Based on agreement of the parties to accept service by electronic transmission, I caused the documents to be sent to the persons at the e-mail address(es) listed above. Oo BY FACSIMILE TRANSMISSION [As a courtesy] [Pursuant to Code Civ. Proc. §1005(c)] I caused a true and complete copy of the document described above to be transmitted by facsimile transmission to the telephone number(s) of the person(s) set forth above. [ declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on March 24, 2017 at Upland, California. AA ¢ Michael Armenta Te DEFENDANTS/CROSS-COMPLAINANT’S MOTION IN LIMINE NO. 2