Motion_in_limine_no_3_to_exclude_documents

Motion

Cal. Super. - 2nd Dist.March 21, 2013

Roger J. Buffington (State Bar No. 191960) Kaden J. Kennedy (State Bar No. 238699) Adam M. Foster (State Bar No. 301507) Buffington Law Firm, PC 8840 Warner Ave, Suite 300 Fountain Valley, CA92708 Telephone 714-842-6124 Facsimile 714-842-6134 Email notice@buffingtonlawfirm.com Attorneys for Plaintiff Mary Anne Keshen SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES, CENTRAL DISTRICT MARY ANNE KESHEN, in the Right of and in the Benefit of RETAIL ENTERPRISE GROUP, INC. Plaintiff, VS. TERRANCE TALLEN aka TERRENCE TALLEN aka TERRY TALLEN: and DOES 1-5, inclusive. Defendants. and RETAIL ENTERPRISE GROUP, INC., a Florida Corporation, nominal defendant solely in a derivative capacity, Nominal Defendants. AND RELATED CROSS-ACTIONS. No. BC503552 PLAINTIFF'S MOTION IN LIMINE NO. 3 TO EXCLUDE DOCUMENT BATES STAMPED TPT000603- TPT000618 Date: January 20, 2016 Time: 8:30 a.m. Dept: 48 Action Filed: March 21, 2013 Assigned to Hon. Elizabeth Allen White KESHEN'S MOTION IN LIMINE NO. 3 m Jos §'\Clients 20 4\Keshen-1-TRST-2014! rial Kesken's Motions in Limine'Motion in Limine No 3 to Exclude Cross-Camplaint docx TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: NOTICE IS HEREBY GIVEN THAT Plaintiff Mary Anne Keshen (“Plaintiff” or “Keshen™) hereby moves move this court for an order precluding Defendant Terrance Tallen (“Defendant” or “Tallen™) from offering any testimony, other evidence, or argument at trial regarding the documents bate stamped TPT000603- TPT000618. This motion is brought on the grounds that the probative value of the document is substantially outweighed by the risks enumerated in Evidence Code § 352, the document is irrelevant, hearsay. and also includes privileged attorney-client communications from Ms. Keshen to her counsel at the time back in 1998 on an entirely collateral matter. The motion is based on the memorandum of points and authorities accompanying this motion, on the papers and records on file herein, and on such oral and documentary evidence as may be presented at the hearing of this motion. Buffington Law Firm, PC Roger J. Buffington Kaden J. Kennedy Adam M. Foster Attorneys for Mary Anne Keshen Dated: December 22, 2015 KESHEN'S MOTION IN LIMINE NO. 3 Oz §'\Clients 2014\Keshen- L-TRST-2014\Trial\Keshen's Motions in Limine\Motion in Limine No 3 ta Exclude Cross-Complaint docx 2 MEMORANDUM OF POINTS AND AUTHORITIES I, INTRODUCTION AND STATEMENT OF THE FACTS The gravamen of this Motion in Limine No. 3 to Exclude the documents bate stamped TPT000603- TPT000618 ("Motion") is that the probative value of a Cross-Complaint filed against Ms. Keshen in 1998 by a third party on a collateral matter, along with privileged attorney-client correspondence between Ms. Keshen and her counsel concerning a collateral matter, is substantially outweighed by the risks enumerated in Evidence Code § 352. Additionally, the document is entirely irrelevant, hearsay, and also includes privileged attorney- client communications from Ms. Keshen to her counsel at that time back in 1998. These documents which Plaintiff Mary Anne Keshen ("Plaintiff or "Keshen") seeks to exclude pursuant to the instant Motion, include a copy of a Cross-Complaint that was filed against Ms. Keshen back in 1998 by a third party, concerning an entirely unrelated, collateral matter to the present lawsuit. Nonetheless, it appears that the defense intends to utilize such document. and the allegations therein, to attempt to cast a negative light upon Ms. Keshen. Such unrelated allegations are not admissible here, and simply would potentially prejudice Ms. Keshen, while providing no relevant information whatsoever to the trier of fact for the instant dispute between Ms. Keshen and Defendant Terrence Tallen ("Defendant or "Tallen"). II. THE POTENTIAL FOR UNDUE PREJUDICE AS A RESULT OF ALLOWING ENTIRELY IRRELEVANT, HEARSAY, PRIVILEGED DOCUMENTS CONCERNING A COLLATERAL MATTER TO BE ADMITTED SUBSTANTIALLY OUTWEIGHS ANY PROBATIVE VALUE OF THE EVIDENCE. Under Evidence Code § 352, evidence must be excluded if the probative value is substantially outweighed by probability that its admission will (a) necessitate undue consumption KESHEN'S MOTION IN LIMINE NO. 3 3 a S:\Clients 2014\Keshen- 1 -TRST-2014\Tria)\Keshen's Motions in Limine! Motion in Limine No 3 to Exclude € ross-Complaint, docx of time or (b) create substantial danger of undue prejudice, of confusing the issues. or of misleading the jury. [Cal. Evid. Code § 352]. “Reasonable exercise of trial courts discretion pursuant to Evidence Code § 352 requires that the trial judge balance the probative value of the offered evidence against its potential of prejudice, undue consumption of time, and confusion.” [Kessler v. Gray (1978) 77 Cal.App.3d 284, 291]. “Generally, the trial court has the power to rule on the admissibility of evidence, exclude proffered evidence that is deemed to be irrelevant, prejudicial, or cumulative and expedite proceedings which, in the court’s view , are dragging on too long with significantly aiding the trier of fact.” [Hernandez v. Kieferle (2011) 200 Cal. App.4th 419, 438 (quoting In re Marriage of Carlsson (2008) 163 Cal. App.4th 281, 291)]. “A trial court acts within its discretion when excluding cumulative and time consuming idence [Aguayo vy. Compton & Knowles Corp. (1986) 183 Cal.App.3d 1032. 1038]. “Substantial danger of undue prejudice” within the meaning of section 352 refers to a situation in which the evidence may be misused by the jury for a purpose other than which it was admitted. [People v. Filson (1994) 22 Cal. App.4th 1841, 1851]. Section 352 empowers courts to prevent trials "from degenerating into nitpicking wars of attrition over collateral credibility issues." [People v. Ayala (2000) 24 Cal.4th 243, 282: People v. Hamilton (2009) 45 Cal.4th 863, 946; People v. Wheeler (1992) 4 Cal.4th 284, 296]. Here, there is a very real danger that the jury could rely on the Subject Documents to the detriment of Ms. Keshen. Moreover, the fact that the Cross-Complaint from 1998 concerns entirely unrelated third parties and transactions in a collateral matter makes admission of such document improper. Further justifying exclusion, is the fact that TPT000603- TPT000606 is correspondence and an attachment to Ms. Keshen's counsel at the time concerning that collateral cross- KESHEN'S MOTION IN LIMINE NO. 3 sds S\Cliems 2014'Keshen-1-TRST-20141Trial\Keshen's Motions in Limine\Mation in Limine No 3 10 Exclude Cross-Complami docx 2 complaint; TPT000604, a letter from Ms. Keshen to her counsel even recites "I have attached for your confidential review a copy of the Harvey cross complaint." Clearly, this document is protected by the attorney-client privilege as an obvious communication between Ms. Keshen and her counsel. Such document cannot be used by Tallen, who apparently improperly obtained this entirely irrelevant document unbeknownst to Ms. Keshen. III. CONCLUSION. For the reasons set forth above, Plaintiff respectfully requests that this Court enter an order generally precluding Defendant from any use whatsoever of the documents bate stamped TPT000603- TPTO00618. Buffington Law Firm, PC EE Roger J. Buffington Kaden J. Kennedy = Adam M. Fost Attorneys for ry Anne Keshen Dated: December 22, 2015 KESHEN'S MOTION IN LIMINE NO. 3 3 §/\Clients 2014\Keshén-1-TRST-2014\Trial\Keshen's Motions in Limine'Motion in Limine No 3 to Exclude Cross-Complaint docx PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I'am employed in the County of Orange, State of California. [ am over the age of 18 and not a party to the within action; my business address is 8840 Warner Ave., Suite 300 Fountain Valley, CA 92708. On December 22, 2015, 1 served the foregoing document described as: * PLAINTIFF'S MOTION IN LIMINE NO. 3 TO EXCLUDE DOCUMENT BATES STAMPED TPT000603- TPT000618 * [PROPOSED] ORDER GRANTING PLAINTIFF'S MOTION IN LIMINE NO.3 TO EXCLUDE DOCUMENT BATES STAMPED TPT000603- TPT000618 in the following manner: (X) Via ESERVE & US MAIL [an C. Fusselman Thorsnes Bartolotta McGuire 2550 Fifth Ave., 11™ Floor San Diego, CA 92103 fusselman(@tbmlawyers.com Theodore G. Phelps Superior Court Receiver 11400 W. Olympic Blvd. Suite 200 Los Angeles, CA 90064 tphelps@pcgci.com Deborah A. Wolfe, Esq. Wolfe Legal Group, PC 402 W. Broadway, Suite 400 San Diego, CA 92101-3554 dwolfe@wolfelegalgroup.com Steven Spector BuchalterNemer, P.C. 1000 Wilshire Boulevard, Suite 1500 Los Angeles, CA 90017 sspector@buchalter.com Oren Bitan BuchalterNemer, P.C. 1000 Wilshire Boulevard, Suite 1500 Los Angeles, CA 90017 obitan@buchalter.com Electronic Mail: I caused such document to be transmitted by electronic mail transmission to the person(s) and address(es) listed herein and/or their attorneys of record as stated above and/or on the attached service list to their known electronic mail address(es). The document(s) was/were transmitted by electronic mail. As follows: Tam “readily familiar” with the Firm’s practice of collection and processing correspondence for mailing with the United States Postal Service. Under the practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Orange County, California, in the ordinary course of business. The envelope is sealed and placed for collection and mailing on this date, following ordinary business practices. | am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage date is more than 1 day after date of deposit for mailing in this affidavit. Executed on December 22, 2015, at Orange County, California. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 4 Poe 3 7 TAI Jessica A.M. DeMarco