Kerry J. Snyder vs. Steven A. Alexander

Opposition

Cal. Super. - 4th Dist.July 26, 2016

10 1:1. 12 13 14 15 16 1.7 18 19 20 21 22 23 24 25 26 27 28 Roger G. Ho SBN 215723 George H. Bean SBN 306016 Wenzel & Associates, A Law Corporation ELECTRONICALLY FILED 800 N. Broadwav. Suite 101 Superior Court of California, 1 ’ Y> County of Orange Santa Ana, CA 92706 02/02/2018 at 10:53:00 Au (714) 564-9400 — phone Clerk of the Superior Court (714) 564-9444 — fax By & Clerk, Deputy Clerk Attorneys for Plaintiff, Kerry J. Snyder SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE CENTRAL JUSTICE CENTER Case No: 30-2016-00865761 KERRY J. SNYDER, et al. OPPOSITION TO DEFNDANT’S Plaintiff, MOTION IN LIMINE NO. 1 FOR VS. ORDER PRECLUDING PLAINTIFF FROM INTRODUCING ANY STEVEN A. ALEXANDER aka STEVEN A. WITNESSES, EVIDENCE, OR AFGHAN, et al., CONTENTIONS NOT DISCLOSED IN Defendants DISCOVERY; SUPPORTING DECLARATION OF ROGER G. HO Trial date: February 5, 2018 Dept: CX103 Plaintiff Kerry J. Snyder (hereinafter Snyder) herein Opposes Defendant Steven A. Alexander aka Steven A. Afghani’s (hereinafter Alexander) motion in limine number 1 to preclude Snyder from introducing any witnesses, evidence, or contentions not disclosed in discovery as follows: The herein motion in limine by Alexander is overbroad and without legal basis. This motion first of all wrongly assumes there is a legal requirement that the identity of all non-expert and non-party trial witnesses must be disclosed during the discovery OPPOSITION TO DEFENDANT'S MOTION IN LIMINE NO. 1 OCSC CASE NO. 30-2016-00865761 1 10 1:1. 12 13 14 15 16 1.7 18 19 20 21 22 23 24 25 26 27 28 phase of litigation. If there were such a requirement, Alexander himself has failed to comply. See Declaration of Roger G. Ho, 92. The Court is not authorized to preclude evidence or a witness from testifying at trial unless there is evidence that the party wishing to use the evidence or trial witness willfully and falsely withheld or concealed the evidence or name of the witness in response to a propounded discovery question. Evidence of willful and false withholding normally arises from a granted motion to compel further responses that has not been complied with. See Saxena vs. Goffney (2008) 159 Cal.App.4th 316, 482-484. Pursuant to Evidence Code §800, non-expert and non-party witnesses may provide trial testimony in the form of an opinion that is “rationally based on the perception of the witness [and] helpful to a clear understanding of his testimony.” Most of Snyder’s non-expert witnesses will be giving lay opinion testimony. Several may also provide impeachment or rebuttal testimony. Neither of the parties in this action made a demand for the exchange of expert witness information pursuant to CCP §2034.210, et seq. See Declaration of Roger G. Ho, 13. As such, there was no requirement of Snyder to disclose the identity of his expert witnesses during the discovery phase of this action. Lastly, the herein motion in limine by Alexander has the negative effect of undermining the judicially established policy of liberally permitting amendments to a complaint “at any stage of the proceedings, up to and including trial.” Atkinson vs. Elk Corp. (2003) 109 Cal.App.4th 739, 761. /11 /1/ /1/ /1/ /1/ /1/ OPPOSITION TO DEFENDANT'S MOTION IN LIMINE NO. 1 OCSC CASE NO. 30-2016-00865761 2 10 1:1. 12 13 14 15 16 1.7 18 19 20 21 22 23 24 25 26 27 28 On the basis of the foregoing, and that which may be argued at the hearing for this matter, Snyder respectfully prays that Alexander’s herein motion in limine is denied. Dated: February 1, 2018 WENZEL & ASSOCIATES, A Law Corpogation \ Roger G. 1d, Attorneys for Plaintiff Kerry J. Snyder DECLARATION OF ROGER G. HO I, Roger G. Ho, hereby declare as follows: 1. Tam a duly licensed attorney in the State of California with Wenzel & Associates, A Law Corporation, the attorneys of record in this matter for Plaintiff Kerry J. Snyder. If called upon to do so, I am competent to provide testimony on the matters herein addressed. 2. At no time during the discovery phase of this action did defendant Alexander disclose the identities of any non-expert or non-party witnesses he intended to call at trial. 3. At no time during the discovery phase of this action did either party make a formal demand for the exchange of expert witness information pursuant to CCP 82034.210, et seq. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated: February 1, 2018 Roger G. Ho OPPOSITION TO DEFENDANT'S MOTION IN LIMINE NO. 1 OCSC CASE NO. 30-2016-00865761 3