Kristin Johnston vs. Village Townhomes Maintenance Corporation

Motion in Limine

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

No 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) ELECTRONICALLY FILED Superior Court of California, County of Orange 10/27/2017 at 02:00:00 Ah Clerk of the Superior Court By Bnma Castle, Deputy Clerk THE LAW OFFICES OF KERMIT D. MARSH 9550 Warmer 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. 1 TO PRECLUD E DEFENDANTS FROM INTRODUCING DOCUMENTS WHICH ARE RESPONSIVE TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE, BUT WHICH WERE NOT IDENTIFIED AND/OR PRODUCED 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. | OO 00 J O&O Wn HAH WLW O N = BN N N N N N N N N m = em e d h d p m b d p d e d ee e d © NN A Un A W N = O O N Y BRE W N -- OO CORPORATION (“Defendant” or the “Association™) from introducing documents which are responsive to Plaintiff’s Requests for Production of Documents, Set One, but which were not identified and/or produced by Defendants 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 grounds that statutory and case authority supports such preclusion. Respectfully submitted. DATED: July 28, 2017 LAW OFFICES OF KERMIT D. MARSH Kw BP Mand “KERMIT D. MARSH Attorneys for Plaintiff KRISTIN JOHNSTON 2 PLAINTIFF'S NOTICE OF MOTION AND MOTION IN LIMINE NO. 1 wm As W N OO © 9 O&O 10 11 12 14 Ia 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. ARGUMENT In responses to requests for production of documents, the responding party must respond and produce responsive documents. Plaintiff KRISTIN JOHNSTON (“Plaintiff””) propounded Requests for Production of Documents, Set One upon Defendant VILLAGE TOWNHOMES MAINTENANCE CORPORATION (“Defendant” or the “Association’), and Defendant has served responses and production to the requests. True and correct copies of Plaintiff's Requests for Production of Documents, Set One and Defendant’s responses are attached to the Declaration of Shannon C. Lamb (“Lamb Declaration”) as Exhibits A and B, respectively. The documents produced by Defendant are Bates Stamped Nos. VITMCO001 through VTMC663. Plaintiff requests that this Honorable Court grant this motion in limine and preclude Defendant from introducing as evidence any documents improperly withheld or not timely produced in response to Plaintiff's Requests for Production of Documents, Set One propounded on Defendant. The requested relief is necessary to prevent substantial prejudice to Plaintiff resulting from Defendant's failure to disclose and produce documents in response to Plaintiff's Requests for Production of Documents, Set One. A. The Court Has the Authority to Exclude Evidence Not Previously Disclosed or Produced During Discovery Under the California Evidence Code and Code of Civil Procedure. The authority to exclude at trial evidence withheld during discovery is expressly provided in Code of Civil 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 of Civil 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 of Civil Procedure, Section 2023.030(c). 3 PLAINTIFF'S NOTICE OF MOTION AND MOTION IN LIMINE NO. 1 © 0 uN Oo wn BA W o p = ND N N N N RN RN N N = e e e m e e ee e e e d e e © NN A N nn B R A W N =H OC VW N N BE W N = O 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 of Civil Procedure, the trial court has the inherent power under California Evidence Code, Section 352 to exclude the 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 evidence if 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. Plaintiff anticipates that Defendant will attempt to introduce evidence responsive to Plaintiff's Requests for Production of Documents, Set One at trial, which it failed and/or refused to produce during discovery, including but not limited to, documents relating to plumbers, restoration companies and Association contractors, documents relating to expert reports on plumbing/slab leaks from prior lawsuits involving the Association or obtained for any matter other than this lawsuit, documents relating to invoices, payments, contracts of plumbers, remediation companies, and contractors that have provided repair services or otherwise to any common areas or members of the Association, documents relating to lawsuits or complaints filed against the Association or on behalf of the Association, and/or documents relating to reports of slab leaks, repair bids and restoration of slab leaks for any property at the Association other than Plaintiff's property. The Court should exclude any documents Defendant failed to produce in response to Plaintiff's Requests for Production of Documents, Set One, as the introduction of such documents 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 of the discovery process in providing unmeritorious objections, evasive responses, and failing to disclose and produce responsive documents. Consequently, should Defendant attempt to introduce evidence at trial that was requested by Plaintiff's Requests for Production of Documents, Set One, but not produced during discovery, such evidence should be excluded. nn 4 PLAINTIFF'S NOTICE OF MOTION AND MOTION IN LIMINE NO. 1 B. Defendant Should Be Precluded Pee Introducing Evidence at Trial That it Failed to Produce During Discovery to Prevent a Trial by Ambush. California’s discovery process allows for discovery of all relevant material and is designed to 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 allowing litigants to obtain facts and evidence necessary to resolving the dispute. Davies v. Superior Court (1984) 36 Cal.3d 291, 299. After receiving a request for production of documents, the responding party must produce] all responsive documents. Failure to do so allows the Court to preclude unproduced documents from being introduced in evidence by the responding party. A&M Records, Inc. v. Heilman (1977) 75 Cal.App.3d 554, 565 (court properly prevented defendant from introducing documents at trial that defendant failed to produce in discovery). The purpose of this measure is necessary to prevent trial by ambush. In Pate v. Channel Lumber Co., the trial court precluded a defendant from introducing as evidence documents at trial because the defendant failed 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 whether to grant or deny a discovery sanction is within the sound discretion of the 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 Requests for Production of Documents, Set One upon Defendant, which required Defendant to produce documents relevant to this action, such as documents relating to plumbers, restoration companies and Association contractors, documents relating to expert reports on plumbing/slab leaks from prior lawsuits involving the Association or; obtained for any matter other than this lawsuit, documents relating to invoices, payments, contracts of plumbers, remediation companies, and contractors that have provided repair services 5 PLAINTIFF'S NOTICE OF MOTION AND MOTION IN LIMINE NO. 1 Oo 0 N N wn BA W N BN N N N N NN N N N N Mm e d e d pe d pe d pe d p d pe d a 2 9 a bh FE B E B E B E R a E E B E R B E E H B or otherwise to any common areas or members of the Association, documents relating to lawsuits or complaints filed against the Association or on behalf of the Association, and/or documents relating to reports of slab leaks, repair bids and restoration of slab leaks for any property at the Association other than Plaintiff's property. In response to Plaintiffs requests for such documents, Defendant provided unmeritorious objections and evasive responses, and failed and refused to provide all responsive documents. As such, any evidence responsive to Plaintiff's Requests for Production of Documents, Set One introduced by Defendant, which it failed to produce during discovery, should be excluded. Under the above analysis, Plaintiff's Motion in Limine No. 1 should be granted in its entirety. II. CONCLUSION For all the foregoing reasons, Plaintiff Kristin Johnston respectfully requests that this Court grant this Motion in Limine No. 1 in its entirety and preclude Defendant from introducing documents which are responsive to Requests for Production of Documents, Set One propounded by Plaintiff, and which were not produced by Defendant in discovery. Respectfully submitted. DATED: July 28, 2017 LAW OFFICES OF KERMIT D. MARSH Fe BHed “KERMIT D. MARSH Attorneys for Plaintiff KRISTIN JOHNSTON 6 PLAINTIFF'S NOTICE OF MOTION AND MOTION IN LIMINE NO. 1