Kristin Johnston vs. Village Townhomes Maintenance Corporation

Motion in Limine

Cal. Super. - 4th Dist.April 28, 2016

N o SHANNON C. LAMB (SBN 208753) SHANNON C. LAMB, APC 19200 Von Karman Avenue, Suite 600 Irvine, California 92612 Tel: (949) 622-5565 Fax: (949) 482-1688 KERMIT D. MARSH (SBN 150745) RICKY S. SHAH (SBN 274264) THE LAW OFFICES OF KERMIT D. MARSH 9550 Warner Avenue, Suite 250 Fountain Valley, California 92708 Tel: (714) 593-2321 Fax: (888) 396-6272 Attorneys for Plaintiff KRISTIN JOHNSTON SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE CENTRAL JUSTICE CENTER KRISTIN JOHNSTON, Plaintiff, VS. VILLAGE TOWNHOMES MAINTENANCE CORPORATION,a California corporation; ROBERT GREENSTEIN,individually; KENDALL MOSLEY, individually; STEVEN WHEELER,individually; and DOES 1 through 10, inclusive, Defendants. Case No: 30-2016-00849191-CU-PP-CJC Assigned for All Purposes to the Honorable Glenn R. Salter PLAINTIFF’S NOTICE OF MOTION AND MOTION IN LIMINE NO. 4 TO PRECLUDE DEFENDANTS FROM INTRODUCING DOCUMENTS AND WITNESSES WHICH ARE RESPONSIVE TO PLAINTIFF’S FORM INTERROGATORIES, SET ONE, BUT WHICH WERE NOT IDENTIFIED BY DEFENDANTS IN RESPONSE Dept.: C22 Date Filed: April 28, 2016 TO ALL PARTIES AND TO THEIR RESPECTIVE ATTORNEYS OF RECORD: Plaintiff KRISTIN JOHNSTON (“Plaintiff”) respectfully moves the Court for an order in limine to preclude the Defendant VILLAGE TOWNHOMES MAINTENANCE 1 PLAINTIFF'S NOTICE OF MOTION AND MOTION IN LIMINE NO. 4 O O 0 N N O& O w n B A W N N N N N N N N N N e e e e e m e e e d e e p d e e e e R 9 O N w n A W O N = O OV O N Y B R E W N D - = © CORPORATION (“Defendant™or the “Association™) from introducing as evidence any documents or witnesses which are responsive to Plaintiff's Form Interrogatories, Set One, but which were not identified by Defendant in discovery on the grounds that introduction of any new documents will substantially prejudice Plaintiff’s ability to properly prepare for trial. This motion is based on the attached Memorandum of Points and Authorities, the Declaration of Shannon C. Lamb, and such other evidence as may be introduced at the time of the hearing, and is made on the groundsthat statutory and case authority supports such preclusion. Respectfully submitted. DATED: July 28,2017 LAW OFFICES OF KERMIT D. MARSH LedPML “KERMIT D. MARSH Attorneys for Plaintiff KRISTIN JOHNSTON 2 PLAINTIFF'S NOTICE OF MOTION AND MOTION IN LIMINE NO.4 O O 0 N N O N W n B s W N N N N N N N N N N e e e ee t p e b e e t e d e d p d p e 0 0 N N O N W n A W N = O O V O N N BR E W N = O O MEMORANDUM OF POINTS AND AUTHORITIES I. ARGUMENT In responses to interrogatories asking for the identification of individuals or documents, the responding party must identify the responsive witnesses or documents. Plaintiff KRISTIN JOHNSTON (“Plaintiff”) propounded Form Interrogatories, Set One upon Defendant VILLAGE TOWNHOMES MAINTENANCE CORPORATION (“Defendant” or the “Association”), and Defendant has served responses the interrogatories. True and correct copies of Plaintiff's Form Interrogatories, Set One and Defendant’s responsesare attached to the Declaration of Shannon C. Lamb (“Lamb Declaration™) as Exhibits A and B, respectively. Plaintiff requests that this Honorable Court grant this motion in limine and preclude Defendant from introducing as evidence any documents or witnesses that it improperly failed to identify in response to Plaintiff's Form Interrogatories, Set One propounded on Defendant. The requested reliefis necessary to prevent substantial prejudice to Plaintiff resulting from Defendant’s failure to identify witnesses and documents in response to Plaintiff's Form Interrogatories, Set One. A. The Court Has the Authority to Exclude Evidence Not Previously Disclosed During Discovery Under the California Evidence Code and Code of Civil Procedure. The authority to exclude attrial evidence withheld during discovery is expressly provided in Code ofCivil Procedure, Section 2023.030. The Code explicitly identifies misuse of discovery as including making, without substantial justification, an unmeritorious objection to discovery, and making an evasive response to discovery. Code ofCivil Procedure, Section 2023.010. Section 2023.030, governing sanctions for the misuse of discovery, expressly authorizes a court to impose not only monetary sanctions, but more importantly, evidentiary sanctions. This section states, in pertinent part, as follows: "The court may impose an evidence sanction by an order prohibiting any part engaging in the misuse of the discovery process from introducing designated matters in evidence." Code ofCivil Procedure, Section 2023.030(c). Evidence preclusion is not limited to situations involving a misuse or abuse of the discovery process. In addition to the express provisions under the Code ofCivil Procedure, the trial court has the inherent power under California Evidence Code, Section 352 to exclude the 3 PLAINTIFF'S NOTICE OF MOTION AND MOTION IN LIMINE NO.4 r o © e e N N O o w n B s 10 11 12 13 14 15 16 17 18 19 20 21 22 23 25 26 27 28 introduction of any new evidence not previously produced or disclosed if such introduction might result in undue prejudice. Pursuant to Evidence Code, Section 352, the Court in its discretion may exclude evidenceif its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time, or (b) create substantial danger of undue prejudice, or confusing the issues, or of misleading the jury. The Court should exclude any documents or witnesses Defendant failed to identify in response to Plaintiff's Form Interrogatories, Set One, as the introduction of such documents and witnesses will substantially prejudice Plaintiff’s ability to prepare for trial and analyze and evaluate Plaintiffs claims and Defendant’s defenses. The Court should not reward Defendant for its misuse ofthe discovery process in providing unmeritorious objections, evasive responses, and failing to identify documents and witnesses responsive to Plaintiff's Form Interrogatories, Set One. Consequently, should Defendant attempt to introduce evidence at trial that was requested by Plaintiffs Form Interrogatories, Set One,but not identified during discovery, such evidence should be excluded. B. Defendant Should Be Precluded From Introducing Evidence at TrialThat it Failed to Identify During Discovery to Prevent a Trial bv Ambush. California’s discovery process allows for discovery ofall relevant material and is designedto eliminate the element of surprise. Garamedni v. Golden Eagle Ins. Co. (2004) 116 Cal.App.4th 694, 712, n. 8. The Discovery Act was enacted "to take the 'game' element out of trial preparation” by allowinglitigants to obtain facts and evidence necessary to resolving the dispute. Davies v. Superior Court (1984) 36 Cal.3d 291, 299. After receiving interrogatories, the responding party must identify all responsive documents and witnesses. Failure to do so allows the Court to preclude unidentified documents and witnesses from being introduced in evidence by the responding party. A&MRecords, Inc. v. Heilman (1977) 75 Cal.App.3d 554, 565 (court properly prevented defendant from introducing documents at trial that defendantfailed to produce in discovery). The purpose ofthis measure is necessary to prevent trial by ambush. Further, a party is not required to file a motion to compel discovery of evidence of which it is not aware. Deeter v. Angus (1986) 179 Cal.App.3d 241, 4 PLAINTIFF'S NOTICE OF MOTION AND MOTION IN LIMINE NO.4 t o © 0 N N o n w n B s W w 255. In Pate v. Channel Lumber Co., the trial court precluded a defendant from introducing as evidence documentsat trial because the defendantfailed to disclose the documents in response to discovery requests. Pate v. Channel Lumber Co. (1997) 51 Cal.App.4th 1447, 1451. On appeal, the court acknowledged the sanction impaired the defendant's case, but noted "[t]he decision whetherto grant or deny a discovery sanction is within the sound discretion ofthe trial court." Id. at 1454. Failure by the responding party to identify responsive witnesses or documents allows the Court to preclude those witnesses and documents from being introduced in evidence by the responding party. Crumpton v. Dickstein (1978) 82 Cal.App.3d 166, 172-173 (trial court failure to exclude testimony of witnesses not identified in discovery was reversible error, even where omission was not willful). Here,Plaintiff propounded Form Interrogatories, Set One upon Defendant, which required Defendant to identify documents and witnesses relevantto this action. In response to Plaintiffs interrogatories, Defendant provided unmeritorious objections and evasive responses, and failed and refused to identify all responsive documents and witnesses. As such, any evidence responsive to Plaintiff's Form Interrogatories, Set One introduced by Defendant, which it failed to identify during discovery, should be excluded. Under the above analysis, Plaintiff's Motion in Limine No. 4 should be granted in its entirety. II. CONCLUSION Forall the foregoing reasons, Plaintiff Kristin Johnston respectfully requests that this Court grant this Motion in Limine No. 4 in itsentirety and preclude Defendant from introducing documents or witnesses which are responsive to Plaintiff's Form Interrogatories, Set One propounded by Plaintiff, and which were not identified by Defendant in discovery. I I I 11 " 5 PLAINTIFF'S NOTICE OF MOTION AND MOTION IN LIMINE NO.4 w m B A W N O O a O n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respectfully submitted. DATED: July 28, 2017 LAW OFFICES OF KERMIT D. MARSH Lory “KERMIT D. MARSH Attorneys for Plaintiff KRISTIN JOHNSTON 6 PLAINTIFF'S NOTICE OF MOTION AND MOTION IN LIMINE NO.4