Motion_in_limine_plaintiffs_motion_in_limine__5

Motion

Cal. Super. - 2nd Dist.December 21, 2017

Electronically FILED By Superior Court of California, County of Los Angeles on 11/07/2019 03:10 PM Sherri R. Carter, Executive Officer/Clerk of Court, by S. Lopez,Deputy Clerk SIAMAK VAZIRI, ESQ. [State Bar No. 242447] 1 svaziri@vazirilaw.com DAVID SHAY, ESQ. [State Bar No. 241702] dshay@vazirilaw.com ELIZABETH MUNRO, ESQ. [State Bar No. 325502] emunro(@vazirilaw.com VAZIRI LAW GROUP 5 || 5757 Wilshire Boulevard, Suite 670 Los Angeles, California 90036 Telephone: (310) 777-7540 7 Facsimile: (310) 777-0373 HSH L N 8 Attorneys for Plaintiff, MARIA DE JESUS GARCIA 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF LOS ANGELES 11 12 || MARIA DE JESUS GARCIA, an Case No.: BC687751 individual; P i PLAINTIFFS’ NOTICE OF MOTION 14 Plaintiff, AND MOTION IN LIMINE #5 TO v. EXCLUDE SUB ROSA EVIDENCE NOT 15 PRODUCED DURING DISCOVERY ANABELLE CHOUTIER, an 16 individual; OLIVER CHAINE, an individual; and DOES 1 through 25, 17 inclusive; Action Filed: December 21, 2017 Trial Date: December 2, 2019 18 Defendant(s). 19 20 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: 2 PLEASE TAKE NOTICE that, prior to the commencement of trial and the selection of jury, 22 Plaintiff Maria De Jesus Garcia will seek an excluding all sub rosa evidence or other photos not 23 produced in discovery. Failure to produce video, photo or other documentary evidence amounting to 24 sub rosa amounts to trial by ambush. Plaintiff is awaiting discovery responses to Plaintiffs 25 supplemental discovery. As such, if Defendants do not produce this evidence, it should be excluded. 6 This motion is based on this notice, the memorandum of points and authorities, the court 27 file, and such other and further argument as may be heard at the hearing. 28 PLAINTIFF'S MOTION IN LIMINE #5 1 ~~ Ww Oo 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Zr 28 DATED: November fei » 2019 VAZIRI LAW GROUP, APC 4 Tt SI VAZIRI, ESQ. ID C. SHAY, ESQ. LIZABETH MUNRO, ESQ. Attorneys for Plaintiff, Maria De Jesus Garcia PLAINTIFF'S MOTION IN LIMINE #5 2 OO 0 9 O&O wn bs W N N O N N N N N O N N N m m e m e m h m md mm e d e d pe ee 0 NN A Ln bh W N N = O N D N N YN N R W N D = O MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Defendants should be prohibited from presenting any evidence of sub rosa not produced during discovery. On September 26, 2019, Plaintiff propounded on Defendants supplemental discovery. Defendants have yet to respond. Plaintiff believes Defendants may have conducted sub rosa video or photos on her, of which, Defendants have not produced. Plaintiff anticipates Defendant seeks to use this evidence as a way to ambush Plaintiff at trial and prevent Plaintiff from being able to adequately prepare for cross examination. Plaintiff would also be prevented from establishing lack of authenticity, as there would be no time to conduct a deposition of the investigator or testing of the video. Plaintiff has done her due diligence to avoid surprises at trial. Accordingly, Plaintiff seeks order preventing Defendants from introducing any sub rosa evidence not provided during discovery. II. INTRODUCING SUB ROSA EVIDENCE WITHOUT PRODUCTION IN RESPONSE TO DISCOVERY AMOUNTS TO TRIAL BY AMBUSH Sub rosa evidence not produced during discovery should not be permitted to be used as evidence at trial. In California, pretrial discovery procedures are designed to eliminate the need for guesswork about the other side’s evidence, with all doubts about discoverability resolved in favor of disclosure. (See Glenfed Development Corp. v. Superior Court (1997) 53 Cal. App.4"™ 1113.) Courts have construed the discovery statutes broadly, so as to uphold the right to discovery wherever possible. (See Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 377-378.) Moreover, even where the discovery statutes require a showing of “good cause” to obtain discovery, the term is liberally construed to permit, rather than to prevent, discovery wherever possible. (Id. at 377-378.) Courts are to be broad-minded in considering relevancy and provide the party seeking discovery substantial leeway and errors should be made in favor of granting discovery rather than in denying it. (Norton v. Superior Court 24 Cal.App.4th 1750 at 1761-2.) These laws of discovery are meant to preclude trial by ambush and unfair surprise in trial. (See Associated Brewers Dist. Co. v. Superior Court (1967) 65 Cal.2d 583, 587; Campain v. Safeway Stores, Inc. (1972) 29 Cal. App.3d 362, 366.) It is clear that California follows a liberal standard of PLAINTIFF'S MOTION IN LIMINE #5 =] OO 0 9 NN nn B R A W N discovery and favors a finding of good cause for the discovery of sub rosa evidence to avoid trial by ambush. (Suezaki v. Superior Court (1962) 58 Cal.2d 166.) III. GOOD CAUSE EXISTS FOR EXCLUSION AS PLAINTIFF WILL NOT HAVE AN OPPORTUNITY AUTHENTICATE THE SUB ROSA OR HAVE AN ABILITY TO PREPARE FOR CROSS EXAMINATION Failure to permit Plaintiff to have this evidence prior to trial, will preclude her from being able to establish authenticity and proper foundation under Evidence Code sections 402-3, 1400-1402. Video sub rosa evidence requires authentication to be admissible. Evidence Code 1401 and 1400 require (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law. Defendant must produce this evidence now to properly authenticate the same. Otherwise, it cannot meet its burden under Evidence Code 1400. Additionally, if Plaintiff does not receive this evidence until moments before it is presented to the jury, she cannot prevent improper video editing and cannot depose the investigator. Permitting Plaintiff to depose the videographer or private investigator allows her to appropriately confront all witnesses against her and glean crucial information regarding impeachment. IV. CONCLUSION For the reasons and authorities outlined above, Plaintiff respectfully requests that this Court issue an order excluding from evidence all sub rosa evidence not previously produced. / APC - DATED: November 7 19 VAZIRI SIAMAK VAZIRI, ESQ. DAVID C. SHAY, ESQ. ELIZABETH MUNRO, ESQ. Attorneys for Plaintiff, Maria De Jesus Garcia PLAINTIFF'S MOTION IN LIMINE #5 4 ~~ NO 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 2. 23 24 25 26 21 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Los Angeles, State of California. My business address is 5757 Wilshire Blvd., Suite 670, Los Angeles, CA 90036. On November + 2019, I served true copies of the following document(s) described as PLAINTIFF'S NOTICE OF MOTION AND MOTION IN LIMINE #5 TO EXCLUDE TO EXCLUDE SUB ROSA EVIDENCE NOT PRODUCED DURING DISCOVERY on the interested parties in this action as follows: _ BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresses listed in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with the Vaziri Law Group's practice for collecting and processing correspondence for mailing. On the same day that the correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. VIA FACSIMILE: I faxed said documents, to the office(s) of the addressee(s) shown above, and the transmission was reported as complete and without error. KX BY ELECTRONIC TRANSMISSION: I transmitted a PDF version of this document by electronic mail to the party(s) identified on the attached service list using the e-mail address(es) indicated. __X__ BY OVERNIGHT DELIVERY: I deposition such envelope for collection and delivery by Golden State Overnight with delivery fees paid or provided for in accordance with ordinary business practices. I am “readily familiar” with the firm’s practice of collection and processing packages for overnight delivery by Golden State Overnight. She are deposited with a facility regularly maintained by Golden State Overnight for receipt on the same day in the ordinary course of business. __X__ (State): I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. ____ (Federal): I declare that am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on November 7 , 2019, at Los Ange l/ aurcén Hillel PLAINTIFF'S MOTION IN LIMINE #5 5 H O L N Oo 0 a O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MARIA DE JESUS GARCIA v. ANABELLE CHOUTIER, et al. SERVICE LIST John K. Paulson, Esq. FORD WALKER HAGGERTY & BEHAR One World trade center, 27™ floor Long beach CA 90831 Tel: (562) 983-2500 Attorney for Defendant, ANABELLE CHOUTIER and OLIVER CRAINE PLAINTIFF'S MOTION IN LIMINE #5 6