Shiffer'S Mil No. 5 To Exclude Character Evidence & Evidence of Prior Bad Acts Relating To Shiffer'S Prior Unrelated Litigation

Motion

Cal. Super. - 1st Dist.July 5, 2016

O O 0 N N N B R W N N N N N N N N N N e m m m e m e m e m m t e t b e e m e m 0 N y B A W N = © Y O 0 0 N N S E W N - D O Gary R. Lieberman (CSB # 71684) The Law Offices of Gary R. Lieberman 1615 Hill Road, Ste. One Novato, CA 94947 Telephone: (415) 897-2226 Facsimile: (415) 897-3335 glieberman @calivingtrust.com Attorneys for Defendant JOHN SHIFFER SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO KEITH S. KAWAMURA, CASE NO. CGC-16-552848 DEFENDANT JOHN SHIFFER’S MOTION IN LIMINE NO. FIVE TO EXCLUDE CHARACTER EVIDENCE AND EVIDENCE OF PRIOR BAD ACTS RELATING TO SHIFFER’S PRIOR UNRELATED LITIGATION Plaintiff, v. JOHN SHIFFER,Individually and as Successor Trustee of the Amendment and Restatement of The Kawamura Family Trust Executed February 4, 2015, Trial Date: December 4, 2017 Time: 9:00 A.M. Dept.: To Be assigned Defendant. S w N t N u N t N e t N t N t ? “ g t u t ’ n t ? “ a i t “ i t s d I. ORDER REQUESTED Defendant John Shiffer (“Shiffer”) hereby moves this Court for an order excluding any evidence that can be described as character evidence and evidence ofprior bad actsrelating to Shiffer’s participation in prior unrelated litigation. Shiffer seeks an order precluding Plaintiff from offering any argument, testimony or documentary evidence on these issues. In particular, Shiffer seeks to exclude: 1. All character evidence relating to or concerning John Shiffer’s participation in prior unrelated litigation; and 2. All other evidence of prior “bad acts,” or John Shiffer’s “pattern and practices” relating to or concerning Shiffer’s participation in prior unrelated litigation. nn 1 SHIFFER’S MOTION IN LIMINE NO. FIVE TO EXCLUDE CHARACTER EVIDENCE AND EVIDENCE OFPRIOR BAD ACTS RELATING TO SHIFFER’S PRIOR UNRELATED LITIGATION (Case No. CGC-16-552848) O o 0 0 N N B A W N = N O N B N R N N N N N e m m m e m be m e m e a p t m m m m As will be shown below, the aforementioned evidenceis clearly inadmissible as it is not relevant to any issue in the present action. Mr. Shiffer has not put his character in issue, and the evidence is highly prejudicial and inflammatory and will unduly burden this Court pursuantto Evidence Code § 352. II. PROCEDURAL BACKGROUND Defendant served Shiffer’s Supplemental Demand for Production of Documents to Plaintiff, on October 3, 2017. [Decl. of Lieberman, Exh. L, Defendant’s Supplemental Demand for Production of Documents to Plaintiff.] Plaintiff provided responsesto this supplemental discovery request on November 4, 2017. [Decl. of Lieberman, Exh. M,Plaintiff's Responses to Supplemental Demand for Production of Documents.] In his response, Plaintiff provided, inter alia, the following documents: |. Complaint filed by Maria Marchand against John Cualh Cuero Shiffer, action number 11C00834, Superior Court of California, County of Los Angeles, Inglewood Court Southwest District; and, 2. Complaintfiled by John C. Cuero v. McCutchen, Doyle, Brown, Enersen, LLP,et al., action number BC25869, Superior Court of California, County of Los Angeles. III. LEGAL STANDARD The purpose of a Motion in Limineis to exclude from the jury’s hearing evidence deemed inadmissible and prejudicial by the moving party. People v. Morris (1991) 53 Cal.3d 152, 188; FMC Corp. v. Plaisted & Cos. (1998) 61 Cal.App.4th 1132, 1168. It further seeks to “avoid the obviously futile attemptto ‘unring the bell’” when highly prejudicial evidence is offered and then stricken at trial. People v. Morris, supra, at 188. in i I mn mn mn 2 SHIFFER’S MOTION IN LIMINE NO. FIVE TO EXCLUDE CHARACTER EVIDENCE AND EVIDENCE OF PRIOR BAD ACTS RELATING TO SHIFFER'S PRIOR UNRELATED LITIGATION (Case No. CGC-16-552848) O O 0 J O h u n A W N IV. THE COURT SHOULD EXCLUDE ALL CHARACTER EVIDENCE AND SO-CALLED “OTHER BAD ACTS” EVIDENCE THAT PLAINTIFF MAY SEEK TO USE AGAINST JOHN SHIFFER RELATING TO SHIFFER’S PARTICIPATION IN UNRELATED LITIGATION A. Character Evidence of John Shiffer Is Inadmissible Under California Evidence Code Sections 1101(a) and 1104 Evidence of a person's character ora trait of his or her character is inadmissible when offered to prove the person’s conduct on a specified occasion, whether in the form of an opinion, evidence of reputation, or evidence of specific instances ofhis or her conduct. Evid. Code §1101(a). Likewise, evidence of a trait of a person’s character with respect to care orskill is inadmissible to prove the quality ofhis or her conduct on a specified occasion. Evid. Code § 1104. The introduction of character evidence is impermissible and normally constitutes judicial error. Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841; Webb v. Van Noort (1966) 229 Cal.App.2d 472, 478; Larson v. Larson (1952) 72 Cal.App 169, 172. Therationales for the rule are also well established. “First, character evidence is of slight probative value and may be very prejudicial. Second, character evidence tends to distract the trier of fact from the main question of what actually happened on the particular occasion and permits the trier of fact to reward the good man and to punish the bad man because oftheir respective characters. Third, introduction of character evidence may result in confusion ofissues and require extended collateral inquiry.” Law Rev. Comm'n Comment to Ev.C. § 1101; Bowen v. Ryan (2008) 163 Cal.App.4th 916, 923. The rationale for these rules goes further: Section 1101 codifies well-settled California law. [Citation.] The purpose ofthe rule is to preventcollateral issues from consuming too much time and distracting the attention of the trier of fact from what was actually done on the particular occasion. The slight valued of evidence balanced against the danger of confusion of issues, collateral inquiry, prejudice and the like, warrants a fixed exclusive rule. Law Rev. Comm'n Comment to Ev.C. § 1104. Shiffer believes that Plaintiff may attemptto present evidence of “other bad acts,” such as, but not limited to, a complaintfiled against Shiffer in unrelated litigation and a complaintfiled by Shiffer in an unrelated employment dispute. The evidence that Plaintiff produced in response to Shiffer’s discovery requests described above does not relate to matters put in issue by Plaintiff’s 3 SHIFFER'S MOTION IN LIMINE NO. FIVE TO EXCLUDE CHARACTER EVIDENCE AND EVIDENCE OFPRIOR BAD ACTS RELATING TO SHIFFER’S PRIOR UNRELATED LITIGATION (Case No. CGC-16-552848) O O 0 0 ~~ ) O N W n R s W N = © ~ ~ h h A W N = O O m N Y N W N = O complaint. The evidence is not probative of any fact that is material to Plaintiff's claims. Plaintiff's introduction of this evidence would be solely for the purpose of proving Shiffer’s disposition or propensity to act in accordance with his character on particular occasions at issue in Plaintiff's complaint. This is impermissible character evidence under Evidence Code section 1101(a) and must be excluded because it is well established that “[e]vidence of a person’s character or a trait of his character . . . is inadmissible when offered to prove his conduct on a specified occasion.” Evid. Code § 1101(a). Evidence Code § 1101(a) sets out the well-established “propensity” rule which prohibits the use of such character evidence. Plaintiff’s evidence listed above, as well as all character evidence Plaintiff seeks to introduce attrial against Shiffer, must be excluded under Evidence Code section 1101(a). Any such evidence is ofslight probative value and is highly prejudicial; will distract the factfinder from the main question of what actually happened on the particular occasions raised in Plaintiff's complaint; and will certainly result in confusion ofthe issues and require extended collateral inquiry. See Law Rev. Comm'n Comment to Ev.C. § 1101; Bowen v. Ryan (2008) 163 Cal.App.4th 916, 923. Evenif the aforementioned evidence did not constitute impermissible character evidence under Section 1101, the evidence would still be inadmissible because “evidence of a. . . person’s character with respectto care or skill is inadmissible to prove the quality of his conduct on a specified occasion.” Evid. Code §1104. In this instance, Plaintiff may attemptto introduce evidence of Shiffer’s conduct in other unrelated cases or on other unrelated occasionsto establish that Shiffer committed tortious behavior in this specific case. This evidence constitutes evidence of specific acts of bad character for the purpose of proving the Shiffer also committed the alleged bad acts at issue in this case. The introduction of such evidence is impermissible and would constitute judicial error. Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841; Webb v. Van Noort (1966) 229 Cal.App.2d 472, 478; Larson v. Larson (1952) 72 Cal.App 169, 172. nm mn 1 4 SHIFFER'S MOTION IN LIMINE NO. FIVE TO EXCLUDE CHARACTER EVIDENCE AND EVIDENCE OFPRIOR BAD ACTS RELATING TO SHIFFER'S PRIOR UNRELATED LITIGATION (Case No. CGC-16-552848) N O 0 d N b h R h W N c o ~ ~ A n n B R A W N = O 0 N N B R W N = O B. Character Evidence of John Shiffer Is Inadmissible Under California Evidence Code Section 352 Plaintiff's evidence listed above is also inadmissible under Evidence Code section 352 because character evidence has little or no probative value and it is highly prejudicial to Shiffer. Section 352 states the policy regarding the admission of evidence that has little or no probative value as follows: The court in its discretion may exclude 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, of confusing the issues, or of misleading the jury. Prejudice in the context of Evidence Code § 352 means that the evidence is “likely to inflame the passions of the jury” against the party against whom it is offered. People v. Hoze (1987) 195 Cal.App.3d 949, 954. Marital and employment relationships and business dealings in other cases are notat issue in this case. The outside parameters ofrelevance are defined by the matters explicitly put in issue by the complaint. Judge v. County ofSacramento (1993) 12 Cal.App.4th 59, 65-67; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367,381. The “function of pleadings . . . is to delimit the scope ofthe issues.” Id. Here, Plaintiffs First Amended Complaint simply does notraise issues as to conduct involving other unrelated litigation Shiffer was involved in and any minimal probative value of raising such issues is clearly outweighed by its highly prejudicial effect. C. Character Evidence of John Shiffer Is Inadmissible Hearsay Under California Evidence Code Section 1200 Plaintiff's evidence listed above is hearsay evidence, which is inadmissible under the hearsay rule. Evid. Code § 1200. “Hearsay evidence”is defined in Section 1200 as “evidence of a statement that was made other than by a witness while testifying at the hearing and thatis offered to prove the truth of the matter stated.” Id. The documents themselves constitute hearsay and do not fall within any applicable hearsay exceptions. If Plaintiff could establish the relevance ofthese unrelated lawsuits (he cannot), only the fact that a lawsuit was filed in either instance would be admissible. Moreover, the allegations contained in the complaint filed against Shiffer are also inadmissible hearsay because they are out of court statements offered to prove the truth ofthe SHIFFER’S MOTION IN LIMINE NO. FIVE TO EXCLUDE CHARACTER EVIDENCE AND EVIDENCE OFPRIOR BAD ACTS RELATING TO SHIFFER’S PRIOR UNRELATED LITIGATION (Case No. CGC-16-552848) O O 0 0 9 O N t h B s W N B N R N R N N N N R R N N N ) e m m m e e e t m e m m m m e t e m e m c o ~ N U n B A W N = O W 0 0 s A N D R A W N - = o D matter asserted. These hearsay statements also do notfall within any applicable hearsay exception. The evidence produced by Plaintiff is not related to any material fact at issue in this case and would only be admitted for the purpose of establishing the truth of the hearsay statements,thus the evidence is inadmissible hearsay and must be excluded. See Evid. Code § 1200. V. CONCLUSION For the foregoing reasons, Defendant John Shiffer requests that the Court issue the following Orders: 1. Order excluding at trial all character evidence and argumentrelating to or concerning John Shiffer’s participation in prior unrelated litigation; and 2. Order excluding at trial all other evidence and argument ofprior “bad acts,” or John Shiffer’s “pattern and practices” relating to or concerning Shiffer’s participation in prior unrelated litigation. DATED: November 29, 2017 THE LAW ORHICES OF GARY R. LIEBERMAN By: GARY]JR. LIEBERMAN Attorngys for Defendant JOHN SHIFFER 6 SHIFFER’S MOTION IN LIMINE NO. FIVE TO EXCLUDE CHARACTER EVIDENCE AND EVIDENCE OFPRIOR BAD ACTS RELATING TO SHIFFER’S PRIOR UNRELATED LITIGATION (Case No. CGC-16-552848) O o 0 0 N Y h h B A W N DECLARATION OF SERVICE I am a citizen of the United States, I am over the age of eighteen years and not a party to the within cause; I am employed in the City and County of San Francisco, California and my business address is One Sansome Street, Ste. 2060, San Francisco, California 94104. On this date, I served the following documents: DEFENDANT JOHN SHIFFER’S MOTION IN LIMINE NO. FIVE TO EXCLUDE CHARACTER EVIDENCE AND EVIDENCE OF PRIOR BAD ACTS RELATING TO SHIFFER’S PRIOR UNRELATED LITIGATION on the parties identified below, through their attorneys ofrecord, by placing true copies thereofin sealed envelopes addressed as shown below by the following means of service: : By First Class Mail -- I caused each such envelope, with first class postage thereon fully prepaid, to be deposited in a recognized place of deposit of the U.S. Mail in San Francisco, California, for collection to the office of the addressee(s) following ordinary business practices. J: By Overnight Courier -- I caused each such envelopeto be given to an overnight mail service at San Francisco, California, to be hand delivered to the office of the addressee(s) on the next business day. J: By Personal Service - I caused each such envelope to be given to a messenger at San Francisco, California, to be hand delivered to the office of the addressee(s) on this date. __: Facsimile -- (Only where permitted. Must consult CCP §1012.5 and California Rules of Court 2001-2011. Also consult FRCP Rule 5(¢). Not currently authorized in N.D.CA.) : By E-mail -- I electronically served each party at the email addresses shown on this declaration. VIA OVERNIGHT DELIVERY VIA PERSONAL SERVICE James N. Ono, Esq. Sean Tamura-Sato, Esq. 175 Nortech Parkway Minami Tamaki LLP San Jose, CA 95134 360 Post Street, 8th Floor Tel: 408-505-4545 San Francisco, CA 94108 Email: moweejimono@gmail.com Tel: 415-788-9000 Attorneys for Plaintiff Keith S. Kawamura Fax: 415-387-3998 Email: seant@minamitamaki.com Attorneys for Plaintiff Keith S. Kawamura I declare under penalty of perjury under the laws ofthe State of California that the /] ia. #4 (signature) foregoing is true and correct to the best of my knowledge. EXECUTED on November 29, 2017 at San Francj co, Californ r Rosemarie Vernola (type/print name) 7 SHIFFER'S MOTION IN LIMINE NO. FIVE TO EXCLUDE CHARACTER EVIDENCE AND EVIDENCE OF PRIOR BAD ACTS RELATING TO SHIFFER’S PRIOR UNRELATED LITIGATION (Case No. CGC-16-552848)