Motion In Limine No. Three

Motion

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

© 0 0 N N O o a A H W N = N N D N D N M D D DM D MD M DM V D D = m k m k o m o m o m oe m o m o m o w 0 N N oO o o r A W O N = O O © 0 N N O O 0 0 A O D M = » O© O Kelley Gural, State Bar No. 278450 MICHAEL MAGUIRE & ASSOCIATES Employees of the Law Department State Farm Mutual Automobile Insurance Company 611 Anton Boulevard, Suite 900 Costa Mesa, CA 92626 E-Mail: cali-law-costa-mesa-clc@statefarm.com Phone: (714) 435-7500 / Fax No.: (855) 396-4486 Attorneys for defendants Edward Long and Organix Environmental Services SUPERIOR COURT OF THE STATE OF CALIFORNIA, ORANGE COUNTY CENTRAL JUSTICE CENTER Jeff Buchanan, Jeff Buchanan ) No: 30-2016-00871854 Enterprises, Inc., dba Jeff Buchanan ) Tree Service ) ASSIGNED FOR ALL PURPOSES TO: ) JUDGE FREDERICK P. AGUIRRE Plaintiffs, ) DEPARTMENT C23 ) Date Action Filed: August 26, 2016 V. ) Trial Date: September 5, 2017 ) Edward Long, Organics Environmental ) MOTION IN LIMINE NO. THREE TO Services and DOES 1 to 10 ) EXCLUDE INTRODUCTION OF ) DOCUMENTS AND EVIDENCE NOT Defendants. ) PREVIOUSLY PRODUCED BY ) SUBPOENA OR DISCOVERY Memorandum of Points and Authorities 1. Introduction By this motion, it is requested that this Honorable Court issue an order excluding all evidence of, or reference to, in any fashion, documents and evidence not previously produced by plaintiff, including, but not limited to evidence of medical providers and billings, on the grounds that such was not timely-produced by plaintiff in response to discovery requests. The requested order will therefore preclude any party, attorney, 1- MOTION IN LIMINE TO EXCLUDE EVIDENCE NOT PREVIOUSLY PRODUCED © 0 0 N N O o a A H W N = N N D N D N M D D DM D MD M DM V D D = m k m k o m o m o m oe m o m o m o w 0 N N oO o o r A W O N = O O © 0 N N O O 0 0 A O D M = » O© O and/or any witnesses called on plaintiff's behalf from making any direct or indirect reference whatsoever by suggestion, question or argument to such evidence. 2. Any evidence not timely-produced should be excluded, as such delay has prejudiced the defense Code of Civil Procedure section 2023(b) provides a trial court may impose sanctions upon a party who has “misused” the discovery process, including, but not limited-to, the imposition of an “evidence” sanction: (b)(8) The court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process form introducing designated matters into evidence. It is, then, pertinent that Code of Civil Procedure section 2023.010 defines a “misuse” of the discovery process as including both of the following: (d) Failing to respond to or submit to an authorized method of discovery. (e) Making an evasive response to discovery. Defendant submits that any failure to produce any and all documents supporting plaintiff's claimed damages — despite defendant’s diligent efforts to obtain any and all such evidence — constitutes a “failure” to fully respond to discovery, and, more specifically, an “evasive” response. Further, given thattrial is now upon us indicates the inherent prejudice in withholding documents which show any supposed future medical expenses on the part of plaintiff. An evidence sanction in this instance thus comports with the holding in A & M Records, Inc. v. Heilman (1977) 75 Cal. App. 3d 554. In A & M Records, the appellate court upheld the trial court’s exclusion from trial of certain documents not timely 2- MOTION IN LIMINE TO EXCLUDE EVIDENCE NOT PREVIOUSLY PRODUCED © 0 0 N N O o a A H W N = N N D N D N M D D DM D MD M DM V D D = m k m k o m o m o m oe m o m o m o w 0 N N oO o o r A W O N = O O © 0 N N O O 0 0 A O D M = » O© O produced by the defendant. Defendant Heilman argued such exclusion was improper because, even though he had admittedly failed to produce the documents, the exclusion order was not preceded by a prior order of the court ordering him to produce such. The appellate court found the trial court had broad discretion to exclude the documents under the circumstances, explaining that “[s]o long as the penalty is appropriate to the dereliction and does not exceed the protection required to protect the interest of the party entitled to but denied discovery,its imposition is within the discretion of the trial judge.” (Id., p. 565, citation omitted.) Here, likewise, this Honorable Court has ability to exercise its sound discretion and preclude the introduction of documentation and other evidence which was not produced before trial despite defendant’s attempts to obtain all such evidence prior to trial. 3. Conclusion Based on the foregoing, it is respectfully requested that this Honorable Court enter an order precluding plaintiff, counsel, and witnesses from introducing any evidence of, or referring to, in any fashion, documentation not previously produced, including, but not limited-to, evidence of medical providers and billings, based upon the failure of plaintiff to produce any such evidence when requested to do so. DATED: August 17, 2017 MICHAEL MAGUIRE & ASSOCIATES By: Kelley Gural Attorneys for defendants Edward Long and Organix Environmental Services 3- MOTION IN LIMINE TO EXCLUDE EVIDENCE NOT PREVIOUSLY PRODUCED © 0 0 N N O o a A H W N = N N D N D N M D D DM D MD M DM V D D = m k m k o m o m o m oe m o m o m o w 0 N N oO o o r A W O N = O O © 0 N N O O 0 0 A O D M = » O© O SUPERIOR COURT OF THE STATE OF CALIFORNIA, ORANGE COUNTY CENTRAL JUSTICE CENTER Jeff Buchanan, Jeff Buchanan No: 30-2016-00871854 Enterprises, Inc., dba Jeff Buchanan Tree Service ASSIGNED FOR ALL PURPOSES TO: JUDGE FREDERICK P. AGUIRRE Plaintiffs, DEPARTMENT C23 Date Action Filed: August 26, 2016 V. Trial Date: September 5, 2017 Edward Long, Organics Environmental Services [PROPOSED] ORDER TO EXCLUDE INTRODUCTION OF DOCUMENTS AND Defendants. EVIDENCE NOT PRODUCED BY N r SUBPOENA OR DISCOVERY The motion in limine of defendant to preclude evidence not produced by subpoena or discovery in the court of litigation having come on for hearing in advance of the start of trial, and the Court having considered any opposition, and good cause appearing therefore, IT IS ORDEREDthat plaintiff, counsel, and witnesses shall refrain from introducing or making any mention of, question, argue, comment upon, directly or indirectly, in any manner whatsoever, concerning all evidence not produced by subpoena or discovery in the course of litigation without first approaching the Bench and obtaining a ruling from the Court outside the presence and hearing of all prospective jurors and jurors ultimately selected in this case. DATED: , 2017 JUDGE OF THE SUPERIOR COURT 1- [PROPOSED] ORDER TO EXCLUDE EVIDENCE NOT PRODUCED © 0 0 N N O o a A H W N = N N D N D N M D D DM D MD M DM V D D = m k m k o m o m o m oe m o m o m o w 0 N N oO o o r A W O N = O O © 0 N N O O 0 0 A O D M = » O© O PROOF OF SERVICE (Business Practice to Entrust Deposit to Others California Code of Civil Procedure § 1013 and 1013a) (Buchanan v Long) l, Julie Garner, declare as follows: 1. | am over the age of 18 and not a party to this action. My business address is 611 Anton Boulevard, Suite 900, Costa Mesa, California 92626-1904, which is located in Orange County, the county where this mailing occurred. 2. On August 17, 2017, at my place of business at Costa Mesa, California, the document described as MOTION IN LIMINE NO. THREE TO EXCLUDE EVIDENCE NOT PREVIOUSLY PRODUCED was placed for collection and mailing following ordinary business practices for deposit in the United States Postal Service in a sealed envelope, with postage fully prepaid, addressed to the persons listed below. In addition, on August 17, 2017, at my place of business at Costa Mesa, California, | faxed the document described as MOTION IN LIMINE NO. THREE TO EXCLUDE EVIDENCE NOT PREVIOUSLY PRODUCEDto the person(s) at the fax number(s) listed below. Attorney(s) for: Plaintiff(s), Jeff Buchanan Kimberly Hall Barlow Jones & Mayer 3777 North Harbor Boulevard Fullerton, CA 92835 Fax Number: (714) 446-1448 | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed August 17, 2017, at Costa Mesa, California. Odi 4. Linnea Jllie Garner 1- PROOF OF SERVICE