Veronica Ceja vs. John Choi

Opposition

Cal. Super. - 4th Dist.August 10, 2015

Oo 0 a9 On 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Clark R. Hudson, SBN 149329 David P. Burke, SBN 200120 Tina Safi, SBN 300304 ELECTRONICALLY FILED NEIL, DYMOTT, FRANK, McFALL Superior Court of California, TREXLER, MCCABE & HUDSON County of Orange A Professional Law Corporation 05/26/2017 at 02:36:00 Pr 1010 Second Avenue, Suite 2500 Clerk of the Superior Court San Diego, CA 92101-4959 By Servando Garcia Jr., Deputy Clerk P 619.238.1712/F 619.238.1562 Attorneys for Defendants, JOHN CHOI, D.D.S. SUPERIOR COURT, STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE VERONICA CEJA, CASE NO. 30-2015-00803515-CU-MM-CIC [IMAGED FILE] Plaintiff, ) DEFENDANT JOHN CHOI, D.D.S.’ Vs. ) OPPOSITION TO PLAINTIFFS ) MOTION IN LIMINE PRECLUDING ) DEFENDANTS FROM CALLING ANY JOHN CHOI, D.D.S.; MISSION VIEJO ) WITNESS NOT IDENTIFIED DURING BRIGHT NOW DENTAL, A BUSINESS ) DISCOVERY [4 OF 4] ENTITY FORM UNKNOWN; AND DOES 1 ) TO 100, INCLUSIVE. ) Judge: Hon. Gregory H. Lewis ) Dept. C-26 Defendants. : Filed: August 10, 2015 Trial Date: ~~ June 12.2017 Defendant, JOHN CHOI, D.D.S., respectfully submits this Opposition to Plaintiff’s Motion in Limine For an Order Precluding Defendants from Calling Any Witnesses Not Identified During Discovery (No. 4 of 4). MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION AND FACTS First, Dr. Choi agrees witnesses who were not disclosed during the entire course of discovery shall not be called at the time of trial, but believes this stipulation should apply to all parties, not just Dr. Choi. Discovery in this matter concluded on the Motion/Discovery Cut-off date of May 12, 2017. 1 1 1 DEFENDANT JOHN CHOI, D.D.S.” OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE PRECLUDING DEFENDANTS FROM CALLING ANY WITNESS NOT IDENTIFIED DURING DISCOVERY [4 OF 4] Oo RX a 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dr. Choi submits this opposition because plaintiff appears to confuse the entire course of discovery with “plaintiff’s propounded discoveries,” and appears to insinuate Dr. Choi should be precluded from introducing witnesses he did not identify in responses to plaintiff's written discovery. To be clear, plaintiff has propounded two sets of written discovery to Dr. Choi in this matter: First, plaintiff propounded initial discovery to Dr. Choi in November of 2015. Within his January 2016 responses to this initial discovery, Dr. Choi identified all witnesses known to him at that time. Then, in February of 2017, plaintiff again propounded discovery to Dr. Choi, seeking premature financial discovery. Dr. Choi objected to all of the financial requests. With regard to the January 2016 responses, they were provided to plaintiff approximately 16 months ago, and plaintiff did not propound any pre-trial or supplemental discovery requests to Dr. Choi. Accordingly, if plaintiff wishes to exclude witnesses Dr. Choi did not identify in January 2016 — before he had a chance to depose plaintiff, before he attended the depositions of percipient| witnesses, before his own deposition, and before the expert designation — then Dr. Choi opposes this request. 111. LEGAL ARGUMENT “In enacting the discovery statutes, the Legislature intended to take the game element out of trial preparation by assisting the parties in obtaining the facts and evidence necessary to expeditious resolution of their dispute.” Davies v. Superior Court (1984) 36 Cal.3d 291, 299. Nowhere in the case law does it say a party will be prejudiced by introducing facts and evidence at trial that were not disclosed in written discovery, particularly where the only relevant written discovery in the case occurred 16 months before trial. If this were the case, a party could propound one single set of written discovery at the inception of the case, and move to exclude all subsequent information learned by her opponent throughout the remainder of the discovery process, to include oral discovery. This is contrary to the intent behind the discovery statutes and the case law plaintiff cites to herself, 1 iu 1 2 DEFENDANT JOHN CHOI, D.D.S.” OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE PRECLUDING DEFENDANTS FROM CALLING ANY WITNESS NOT IDENTIFIED DURING DISCOVERY [4 OF 4] © 2 0 10 11 12 13 14 15 16 17 18 19 20 21 29 23 24 25 26 27 28 Moreover, excluding witnesses not identified by Dr. Choi in January 2016 would be highly prejudicial to the defense. For example, in his response to plaintiff’s Form Interrogatory No. 15.1, requesting the names of all persons with facts supporting Dr. Choi’s affirmative defenses, Dr. Choi objected, referring to the upcoming expert opinion testimony, which was not discoverable in January of 2016, pursuant to Code of Civil Procedure Section 2034. To the extent Dr. Choi did not disclose the identity of his retained expert, Dr. Shelhamer, within his January 2016 responses, does plaintiff believe Dr. Choi should be precluded from calling Dr. Shelhamer at trial? The way plaintiff’s motion is phrased certainly appears to suggest the same. All parties can agree excluding the defense expert as a witness at trial, because he was not prematurely disclosed in responses to initial written discovery, would be extremely prejudicial to the defense. Pursuant to Evidence Code Section 352, the value of such testimony certainly outweighs the danger of undue prejudice, and there can be no argument the testimony is irrelevant under Evidence Code Section 350. Finally, plaintiff herself erred by failing to propound supplemental discovery to ask Dr. Choi to provide any subsequently acquired information bearing on all of his previous discovery responses. Accordingly, should plaintiff request the Court broadly exclude all witnesses disclosed in party and non-party depositions, and in the expert exchange pursuant to Code of Civil Procedure Section 2034, Dr. Choi vehemently opposes this request. IV. CONCLUSION Should plaintiff intend her Motion in Limine to preclude parties from introducing witnesses at trial who were not disclosed during the entire discovery process, Dr. Choi agrees. However, if plaintiff wishes to exclude witnesses who were not disclosed in January of 2016, Dr. Choi opposes this request, which would be highly prejudicial to the defense. Dated: May 26, 2017 NEIL, DYMOTT, FRANK, McFALL TREXLER. MCC & HUDSON k R"Hudson id P. Burke ina Safi Attorneys for Defendants, JOHN CHOI. D.D.S. DEFENDANT JOHN CHOI D.D.S.” OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE PRECLUDING DEFENDANTS FROM CALLING ANY WITNESS NOT IDENTIFIED DURING DISCOVERY [4 OF 4]