Catherine Lovell vs. asset Data Direct, Inc.

Opposition

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

OO 0 N N nn R A W ND No No nN N o N N No N O N - -_ - - - pe rt - f - - - Ce N N L i A W N = O Y e N N R W R O 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 ELECTRONICALLY FILED Superior Court of California, County of Orange 0372472017 at 11:45:00 Aw Clerk of the Superior Court By & Clerk, Deputy Clerk 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. Case No.: 30-2015-00815822-CU-QE-CIJC Assigned for all purposes to: Hon. Judge Randall J. Sherman Dept. C24 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 3 TO EXCLUDE DEFENDANTS’ PRETRIAL DISCOVERY CONDUCT Date: Time: Dept.: March 27, 2017 8:30 a.m. C-24 October 20, 2015 March 27, 2017 Complaint Filed: Trial Date: PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION /N LIMINE NO. 3 Oo 0 N Y Wn hk W N N O N O N N N N N e m e e e e s e m e e e s e d N E O R O U R S 0 0 9 a bh W N = © MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Defendants Asset Data Direct, Inc., BR Direct Marketing, Inc., and ACME Envelope, Inc.’s (collectively “Defendants”) improper Motion in Limine No. 3 (“Motion”) serves no purpose other than to: (1) suggest that Defendants did in fact engage in improper pretrial discovery conduct and are now in fear of that conduct being exposed to the jury; and (2) bootstrap Plaintiff from pointing to Defendants’ specific discovery responses and/or document production at the time of trial to show that Defendants did not offer a complete response and/or did not produce all responsive documents requested by Plaintiff. For example, Defendants in their Motion recognize the fact that Plaintiff has been diligent in her discovery efforts and have propounded upon Defendants a considerable number of discovery requests, including interrogatories and requests for production. Despite such requests, which also includes a request for all communications between Plaintiff and Defendants as well as their agents, Defendants have only produced-at most-ten (10) emails to date, specifically only the ones that support their contention that Plaintiff performed poorly at her job. If Defendants’ position is that they have produced all responsive emails that are not protected by privilege, and provided straightforward and complete responses to all questions, this Motion would serve no purpose other than to waste the Court’s time. Plaintiff does not intend to introduce evidence as to the number of motions to compel she filed, the fact that the parties had engage the presence of a discovery referee at the deposition of Bart Davidson, before he’d answer questions, or evidence that she requested to reopen discovery. On the other hand, Plaintiff should be able to point to Defendants’ scant and evasive discovery responses for purposes of impeachment and to show where there was a willful suppression of evidence. Evidence of what Defendants chose to provide and/or conceal in discovery is entirely relevant and admissible (see California Civil Instructions (CACI), §204). As such, the Motion should be denied. II. LEGAL ARGUMENT A. DEFENDANTS’ MOTION IS VAGUE AND OVERBROAD Defendants’ Motion should be denied as vague and overbroad. An in [imine motion for exclusion of evidence is addressed neither to allegations contained in a pleading nor to causes of PLAINTIFFS OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 3 2- OO 0 3 S N wn Bh W N N O N N O N O N N N N N m em e m E e e e e e 0 --_ O N Wn EA W N = S Y Ww N N N E W N = O 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 seek to have excluded, and are simply attempting to enforce a general proposition: that all of their pretrial discovery conduct be excluded from evidence. This is wholly improper. B. DEFENDANTS’ DISCOVERY RESPONSES AND PRODUCTION OR LACK THEREOF IS PROBATIVE AND ADMISSIBLE | Cal. Evid. Code § 413 provides the following: In determining what inferences to draw from the evidence or facts in the case against a party, the trier of fact may consider, among other things, the party’s failure to explain or to deny by his testimony such evidence or facts in the case against him, or his willful suppression of evidence relating thereto, if such be the case. (See e.g., People v. Williams (1967) 253 Cal. App. 2d 952 [in a prosecution for receiving stolen property, evasive answers by defendant to material questions with reference to the ownership of stolen property, or to the manner in which defendant claims to have acquired such property, or a failure on the part of defendant to satisfactorily explain his possession explain his possession, may be sufficient upon which to base an inference of guilty knowledge].) By way of Defendants’ Motion, which seeks to exclude all evidence of pretrial discovery conduct, Defendants are trying to play a fast one. Providing evasive responses or failing to produce documents constitutes “discovery conduct.” Such conduct is relevant and admissible as provided by Cal. Evid. Code § 413. By precluding Plaintiff from commenting on Defendants’ evasive responses to discovery and/or Defendants’ failure to produce documents would be extremely prejudicial to Plaintiff. On the other hand, Defendants’ position that they would be prejudiced by such evidence is a fiction. If Defendants believe they have cooperated in discovery in good faith, Defendants have no need to bring such a Motion. III. CONCLUSION Based on the foregoing, Plaintiff respectfully requests that this Court deny Defendants” Motion in Limine No. 3 to exclude Defendants’ pretrial discovery conduct. PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 3 3. Oo 0 9 O N nn RA W O N = N O N O N N O N N N N N em e e e m e m e s ee e s e s ee 0 ~~ A Y Uh BA W N = O O R N h W N ee © Respectfully submitted on this 23™ day of March, 2017 by: AEGIS LAW FIRM, PC Cindy Pham Attorney for Plaintiff Catherine Lovell PLAINTIFF’S OPPOSITION TO DEFENDANTS® MOTION IN LIMINE NO. 3 4. oO o o a o y nn Bs W N N N N N N N N N N e m e m e e e e e e e m e d e e o e ~~ O N wn RAR W N = O O N N RE W N = O 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: e PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION IN LIMINE NO. 3 TO EXCLUDE DEFENDANTS’ PRETRIAL DISCOVERY CONDUCT on all the appearing and/or interested parties in this action by placing [_] the original [X] 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 [] (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).) X (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).) [1] (BY PERSONAL SERVICE) I delivered the foregoing document by hand delivery to the addressed named above. (Cal Code Civ. Proc. § 1011; Fed R. Civ. Proc. 3(b)(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. Katjlyan Alvarez CERTIFICATE OF SERVICE