Catherine Lovell vs. asset Data Direct, Inc.

Opposition

Cal. Super. - 4th Dist.October 20, 2015

© © ~N AA Un bh W O N N O N N N N N N DN O N Em e m e m e m e m e m e m e e 0 ~~ A Wn Rk W N = D O O ” N N R W DO AEGIS LAW FIRM, PC SAMUEL A. WONG, State Bar No. 217104 CINDY PHAM, State Bar No. 286893 9811 Irvine Center Drive, Suite 100 Irvine, California 92618 Telephone: (949) 379-6250 Facsimile: (949) 379-6251 ALI PARVANEH, State Bar No. 218320 MADISON HARBOR ALC 17702 Mitchell North Irvine, California 92612 Telephone: (949) 756-9050 Facsimile: (949) 756-9060 Attorneys for Plaintiff Catherine Lovell SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE -- CENTRAL JUSTICE CENTER CATHERINE LOVELL, an individual, Plaintiff, Vs. ASSET DATA DIRECT, INC., a California corporation; BR DIRECT MARKETING, INC., a California corporation, ACME ENVELOPE, INC., a California corporation; BART DAVIDSON, an individual; and DOES 1 through 20 inclusive. “Dept. C24 ELECTRONICALLY FILED Superior Court of California, County of Orange 0372472017 at 11:45:00 Aw Clerk of the Superior Court By & Clerk, Deputy Clerk Case No.: 30-2015-00815822-CU-OE-CJC Assigned for all purposes to: Hon. Judge Randall J. Sherman PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 2 TO EXCLUDE EVIDENCE RE CLAIMS NOT] ALLEGED IN THE COMPLAINT March 27, 2017 Date: Time: 8:30 a.m. Dept.: C-24 Complaint Filed: October 20, 2015 Trial Date: March 27, 2017 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 2 Oo 00 9 NN Wn bk W N N O N N N N m e e e e e e m e m e t e m p m e d MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Based on nothing concrete, Defendants Asset Data Direct, Inc., BR Direct Marketing, Inc., and ACME Envelope, Inc.’s (collectively “Defendants™) have moved to exclude evidence of or reference to any claims not alleged in Plaintiff’s Complaint. In essence, all Defendants are trying to do by way of this Motion is prevent one of the most important witnesses of this matter, Mitzi Manning, from testifying as to its financial activities, which are suspect. As former bookkeeper and office manager for Defendants, Ms. Manning’s testimony is important in Plaintiff's ability to prove each and every one of her claims against Defendants, including but not limited to the alter ego relationship between the three Defendant corporations. This evidence would show how money flows between these companies, and how Defendants conspire to hide income. It shows how these companies are in fact nothing but one company when reviewed from a financial, administrative, and accounting prospective. As such, evidence relating to any alleged tax evasion and/or improper payments between Defendants is highly relevant and will serve to be more probative than prejudicial. II. LEGAL ARGUMENT Defendants’ Motion should be denied as vague and overbroad. An in limine motion for exclusion of evidence is addressed neither to allegations contained in a pleading nor to causes of action or specific issues; instead, it is directed toward specific evidence. (Dong v. Board of Trustees (1987) 191 Cal. App.3d 1572, 1584; emphasis added.) In their Motion, Defendants do not identify he specific evidence they are seeking to have excluded, and are simply attempting to enforce a general proposition: that all claims not pled by Plaintiff be excluded from evidence. This is wholly improper. Moreover, all the evidence and theories that Plaintiff will present at trial fall squarely within the causes of actions she has included in her pleadings in this case. Further, Defendants cite no authority that prohibits Plaintiff from using new evidence uncovered in discovery to support her factual claims, or from articulating new arguments to support her legal claims. The evidence Defendants complain about here-the suggestion of tax evasion and improper payments between Defendants by Ms. Manning-go to the heart of Plaintiff’s alter ego claim. As such, the introduction PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 2 9- oo XX N N N nn B R A W N N o N N DN N D = e m mm e m e m e m e d e d p m » 9 8 8 R B N E S 3 a a r 5 0 = 5 of such evidence would not confuse or mislead the jury. Instead such evidence carries probative weight that far outweighs any prejudice claimed by Defendants. Even if Plaintiff was seeking to introduce new claims requiring an amendment of the pleadings, the proper course would not be to preclude those claims, but to require, or allow, Plaintiff to amend the pleadings during or after trial to conform to proof. In the absence of prejudice, leave to amend must be granted up until, and even during, trial. (See, e.g., Higgins v. Del Faro (1981) 123 Cal. App. 3d 558, 564. California law permits such amendments “with great liberality,” so long as the amended pleading is “based upon the same general set of facts” that supported the claims in the original pleading and the opposing party is not prejudiced by the change. (Garcia v. Roberts (2009) 173 Cal. App. 4th 900, 909-10.) Prejudice requires actual surprise affecting the ability to defend, not merely a change of details or theories. Thus, where “the same set of facts supports merely a different theory ... no prejudice can result.” (/d. [finding amendment could not add a claim for breach of written contract, when the plaintiff had previously alleged an oral contract and testified that no written contract existed].) III. CONCLUSION Based on the foregoing, Plaintiff respectfully requests that this Court deny Defendants’ Motion in Limine No. 2 to exclude evidence regarding claims not alleged in the Complaint. Respectfully submitted on this 23™ day of March, 2017 by: AEGIS LAW FIRM, PC _ CoduifdmA Cindy Pham Attorney for Plaintiff Catherine Lovell PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 2 Be NO 0 N N RA W N No R O N DN = em em m e em em b m m p CERTIFICATE OF SERVICE I, the undersigned, 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; am employed with Aegis Law Firm PC and my business address is 9811 Irvine Center Drive, Suite 100, Irvine, California 92618. On March 24, 2017, I served the foregoing document entitled: * PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION IN LIMINENO.2 TO EXCLUDE EVIDENCE RE CLIAMS NOT ALLEGED IN THE COMPLAINT on all the appearing and/or interested parties in this action by placing [] the original [<] a true copy thereof enclosed in sealed envelope(s) addressed as follows: Todd R. Wulffson Ali Parvaneh Emily K. Borman MADISON HARBOR, ALC Carothers DiSante & Freudenberger LLP aparvaneh@madisonharbor.com twulffson@cdflaborlaw.com eborman@cdflaborlaw.com Attorneys for Defendants: Co-Counsel for Plaintiff Asset Data Direct, Inc.; BR Direct Marketing, Inc.; ACME Envelope., and Bart Davidson [1 (BY MAIL) I am readily familiar with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S, Postal Service on that same day with postage thereon fully prepaid at Irvine, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postage cancellation date or postage meter date is more than one day after date of deposit for mailing this affidavit. (Cal Code Civ. Proc. § 1013(a); Fed. R. Civ. Proc. 5(a); Fed. R. Civ. Proc. 5(c).) ] (BY OVERNIGHT MAIL) I am personally and readily familiar with the business practice of Aegis Law Firm PC for collection and processing correspondence for overnight delivery, and I caused such document(s) described herein to be deposited for delivery to a facility regularly maintained Federal Express for overnight delivery. (Cal Code Civ. Proc. § 1013(c); Fed. R. Civ. Proc. 5(c).) Xl (BY ELECTRONIC TRANSMISSION) I caused said document(s) to be served via electronic transmission via Case Anywhere on the date below. (Cal. Code Civ. Proc. § 1010.6(6); Fed. R. Civ. Proc. 5(b)2)(E); Fed. R. Civ. Proc. 5(b)(3).) ] (BY PERSONAL SERVICE) 1 delivered the foregoing document by hand delivery to the addressed named above. (Cal Code Civ. Proc. § 1011; Fed R. Civ. Proc. 3(D)(2)(A).) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct Executed on March 24, 2017, at Irvine, California. Katlfyan Alvarez CERTIFICATE OF SERVICE