Shiffer'S Motion In Limine No. 7 To Exclude 3 Witnesses, Not Disclosed To Def. In Response To Defendant'S Discovery Requests, From Testifying At Trial

Motion

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

O O O0 0 N J O N B A W N N O N N N N N N N N N m m m e e m e e m m m m e m p m e e 0 N h h h A W N = Q O Y W N N E R 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. SEVEN TO EXCLUDE 3 WITNESSES, NOT DISCLOSED TO DEFENDANT IN RESPONSE TO DEFENDANT'S DISCOVERY REQUESTS, FROM TESTIFYING AT TRIAL 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 w N t t t t t g t ? N e t ’ N a t l a t u t N a s t a s t ’ I. ORDER REQUESTED Defendant John Shiffer (“Shiffer”) hereby moves this Court for the following orders excluding certain witnesses from testifying at trial due to Plaintiff's failure to disclose said witnesses in response to Shiffer’s multiple discovery requests: 1. Order prohibiting Plaintiff from calling any of the 3 witnesses listed in Plaintiff's proposed Joint Statement Regarding Trial Time Limits that were never disclosed to Defendant in response to Defendant’s discovery requests and were disclosed 26 days after the close of discovery on November29, 2017; 2. Order prohibiting Plaintiff from testifying to the existence of any ofthe 3 witnesses listed in Plaintiff’s proposed Joint Statement Regarding Trial Time Limits that were never disclosed to Defendant in response to Defendant’s EOL requests and were disclosed 26 days after the SHIFFER’S MTN IN LIMINE NO. SEVEN TO EXCLUDE 3 WITNESSES, NOT DISCLOSED TO DEF. IN RESP.TO DEFENDANT'S DISCOVERY REQUESTS, FROM TESTIFYING AT TRIAL (Case No. CGC-16-552848) O o 0 0 N N O N n h R x W N R N R N R N N N N N e m m m m m e m e t m m m m p t m m p m 0 0 ~ ~ O N h h A W N = O O 0 N O N D R W N e e O D close of discovery on November 29, 2017alleged witnesses whom Plaintiff failed to timely disclose in his deposition testimony; and, 3. Order prohibiting Plaintiff from introducing testimony or documents obtained from these witnesses due to Plaintiff’s failure to disclose such information in response to Shiffer’s discovery requests; 4. Order prohibiting Plaintiff from calling witness Roy Litherland or introducing any documents obtained from him because any such testimony and documents are protected by the attorney-client privilege; and, 5. Order prohibiting Plaintiff from calling witness Maria Marchand or introducing any documents obtained from her because any such testimony and documents are inadmissible under Evidence Code sections 350, 352, 1101(a), and 1104. I. PROCEDURAL BACKGROUND A. Discovery Propounded by Defendant Shiffer exercised diligent efforts to obtain material evidence from Plaintiff in orderto prepare his defense at trial, including diligent efforts to discover witnesses that Plaintiff claimed had knowledge of the allegations in Plaintiff's complaint. Defendant served discovery on Plaintiff on September 15, 2016, which included (1) Shiffer’s Form Interrogatories to Plaintiff, Set One, and (2) Shiffer’s Special Interrogatories to Plaintiff, Set One. These discovery requests asked Plaintiff to identify any witnesses in the case. [Omnibus Declaration of Lieberman In Support of Shiffer’s Motions In Limine (“Decl. of Lieberman”), Exh. A, Defendant’s Form Interrogatories to Plaintiff, Set One; Decl. of Lieberman, Exh. C, Defendant’s Special Interrogatories to Plaintiff, Set One.] These discovery requests were served more than two months after Plaintiff filed his verified complaint. B. Plaintiff’s Written Discovery Responses Plaintiff provided responses to these discovery requests on October 14, 2016. This was more than three months after the complaint wasfiled. Plaintiff had ample time to determine whether there were any witnessesto be disclosed. Plaintiff’s response stated that he did not have personal knowledge of any witnesses other than the parties and Plaintiff’s wife and 2 SHIFFER'S MTN IN LIMINE NO. SEVEN TO EXCLUDE 3 WITNESSES, NOT DISCLOSED TO DEF. IN RESP, TO DEFENDANT'S DISCOVERY REQUESTS, FROM TESTIFYING AT TRIAL (Case No. CGC-16-552848) O o 0 0 N N O N n n A W N ® N A A L R A W N = © VW O® = O W AE A WL Op o - o o daughter. [Decl. of Lieberman, Exh. B, Plaintiff's Responses to Form Interrogatories, Set One; Decl. of Lieberman, Exh. D, Plaintiff's Responses to Special Interrogatories, Set One.] (It should be noted that form and special interrogatories are not restricted only to the personal knowledge of Plaintiff, and if counsel for Plaintiff had additional information beyond Plaintiff's personal knowledge responsive to these questions, counsel was obligated to disclose that information in Plaintiff's discovery responses.) C. Plaintiff Testifies to Having No Knowledge of Any Additional Witnesses at his Deposition Defendant reasonably relied upon Plaintiff’s responsesto interrogatories stating that there were no additional witnesses other than the parties and Plaintiff's immediate family. Defendant commenced his discovery efforts accordingly. On October 6, 2017, Defendant noticed Plaintiff's deposition. [Decl. of Lieberman, Exh. F, Defendant’s Notice of Taking Plaintiff’s Deposition and Request for Production of Documents.] At Plaintiff's deposition on October 24, 2017, Defendant asked Plaintiff again whether he knew ofany additional witnesses to the allegations of his complaint, besides those that he had disclosed in his Responses to Form and Special Interrogatories served to Defendant on October 14, 2016. [Decl. of Lieberman, Exh. G, Excerpts from Plaintiff's Deposition, at 102:20-103:2.] Plaintiff responded that he did not know of any additional witnesses. [1d.] D. Defendant’s Supplemental Discovery Prior to Trial Just before Plaintiff’s deposition was noticed, Defendant served clean-up supplemental interrogatories on Plaintiff on October 3, 2017. Defendant did not anticipate that the supplemental responses would reveal any significant new information in light of previous interrogatory responses, and subsequently, in light of Plaintiff’s deposition testimony. [Decl. of Lieberman, Exh. E, Defendant’s Demand for Supplemental Interrogatories to Plaintiff.] E. Plaintiff Discloses 27 New Witnesses After his Deposition Plaintiff provided his supplemental responses to Defendant’s form and special interrogatories on November 3, 2017. Plaintiff's Responses to Supplemental Form Interrogatories mn 3 SHIFFER’S MTN IN LIMINE NO. SEVEN TO EXCLUDE 3 WITNESSES, NOT DISCLOSED TO DEF. IN RESP. TO DEFENDANT'S DISCOVERY REQUESTS, FROM TESTIFYING AT TRIAL (Case No. CGC-16-552848) O O 0 0 N N A U n R A W N B N R N N N N N N N e m m m m a e t m t m m p t w e e m p e a “Exhibit A” attached to each set of Responses: I. Arlan Wing . Fai Yee . James Doherty . Kristen Valdez 2 3 4 5. Irene Tam 6. Richard Chen 7. Alan Dare 8. Caecilia J. Kim 9. Tim Brenneman 10. Amy I. Pierce 11. Martina Paul 12. Chad Nolan 13. Adam Markosian 14. Nicole J. McKee 15. John Sun 16. Sandra Sun 17. Leonid Miretsky 18. Leyla Esterkin 19. Tony Cheng 20. Robert S. Harvey 21. Stacy L. Ruff 22. Chi Nguyen 23. Quynh Trieu 24. Tran Q. Chung 25. Gayl Dieckman 26. Michiko Koga and Responses to Supplemental Special Interrogatorieslist the following additional witnesses in 4 SHIFFER’S MTN IN LIMINE NO. SEVEN TO EXCLUDE 3 WITNESSES, NOT DISCLOSED TO DEF. IN RESP. TO DEFENDANT'S DISCOVERY REQUESTS, FROM TESTIFYING AT TRIAL (Case No. CGC-16-552848) O O 0 0 ~~ ] O N h h A W N N N N N N N N R R N D e m e m m e e m Em m e m e t e e m a p e 0 ~ ~ O N W n A W N = = O O 0 0 N O N D R A W N = D 27. Paul Isao Horikiri [Decl. of Lieberman, Exh. H, Plaintiff's Supplemental Responses to Form Interrogatories.] These witnesses were revealed one day before the close of discovery and only 10 days after Plaintiff's deposition, where Plaintiff had testified under oath that he did not know of any additional witnesses to the allegations contained in his complaint. This late disclosure deprived Defendant of the opportunity to investigate and depose these 27 witnesses. F. Plaintiff Discloses 3 New Witnesses 26 Days After Close of Discovery and Only 5 Days Before Trial Pursuant to Defendant and Plaintiff's meet and confer on November 29, 2017 relating to the filing of a Joint Statement Regarding Trial Time Limits (“Joint Statement”) under Local Rule 6.8, Defendant provided Plaintiff with his excerpt of Defendant’s witness list to be included in the Joint Statement, which Plaintiff was to compile and file on behalf ofthe parties. Plaintiff then provided to Defendant the proposed final draft of the Joint Statement via email at 1:23 P.M. on November 29, 2017. Plaintiff's proposed Joint Statement included some ofthe witnesses untimely disclosed to Defendant discussed in the previous subsection as witnesses to be called at trial. In addition, Plaintiff disclosed for the first time the following three additional witnesses that Plaintiff anticipatesto testify at trial: 1. Roy Litherland - anticipated to testify regarding communications with Osamu Kawamura regarding the Kawamura Family Trust; 2. Mark Malachowski - anticipated to testify regarding observations of the relationship between Osamu Kawamura and Plaintiff as well as communications with Osamu Kawamura; and 3. Maria Marchand - anticipated to testify regarding her relationship and communications with Defendant. III. LEGAL STANDARD The purpose of a Motion in Limine is 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) 61ah 1132, 1168. It further seeks to “avoid the SHIFFER’S MTN IN LIMINE NO. SEVEN TO EXCLUDE 3 WITNESSES, NOT DISCLOSED TO DEF. IN RESP,TO DEFENDANT'S DISCOVERY REQUESTS, FROM TESTIFYING AT TRIAL (Case No. CGC-16-552848) 0 0 0 ~ ~ O N W n A W R N - 0 ~ N O N W n R A W N = Q O W O 0 0 N N R E W L N N = D obviously futile attempt to ‘unring the bell” when highly prejudicial evidenceis offered and then stricken attrial. People v. Morris, supra, at 188. California Code of Civil Procedure section 2023.030 provides that a Court may impose an evidentiary sanction for the misuse of the discovery process. It was Plaintiff’s obligation to disclose all potential witnesses in response to Defendant's properly propounded discovery. IV. DEFENDANT WILL BE PREJUDICED AND SUBJECT TO UNFAIR SURPRISE IF PLAINTIFF IS ALLOWEDTO PRESENTTESTIMONY OR EVIDENCE FROM WITNESSES THATEDISCLOSEDFOR THE FIRST TIME 5 DAYS BEFORE TRIAL Plaintiff failed to identify these 3 witnesses in response to multiple formal discovery requests from Shiffer until 26 days after discovery closed and only 5 days before trial. Plaintiff's failure to disclose these witnesses all during discovery precluded Shiffer from taking the depositions of these witnesses and clearly constitutes a misuse of the discovery process warranting sanctions due to the unfair surprise and prejudice to Shiffer. See Deeter v. Angus (1986) 179 Cal.App.3d 214 (policy offull disclosure in discovery process is to avoid an unfair surprise at trial) (emphasis added). Further, due to the late nature ofthe disclosure, Defendant is precluded from conducting any meaningful discovery relating to these witnesses further warranting their exclusion at trial. See id. Plaintiff's deposition was taken 10 days before the close of discovery. Plaintiff did not identify any of these 3 individuals in response to deposition questioning. Plaintiff also did not disclose these witnessesin the list of 27 additional witnesses disclosed forthe first time on the day discovery closed. Because Plaintiff never provided any of the names of these 3 witnesses helisted in his proposed Joint Statement priorto the close of discovery, counsel for Defendant was unable to conduct any discovery whatsoeverrelating to these witnesses or any evidence or documentsthat they might have. Defendant was precluded from questioning Plaintiff about these witnesses at Plaintiff's deposition and from issuing deposition subpoenas to depose the witnesses prior to the close of discovery,if necessary. i" mn 6 SHIFFER’S MTN IN LIMINE NO. SEVEN TO EXCLUDE 3 WITNESSES, NOT DISCLOSED TO DEF. IN RESP.TO DEFENDANT'S DISCOVERY REQUESTS, FROM TESTIFYING AT TRIAL (Case No. CGC-16-552848) O o e o J N B R W N - N Y N N N N N N e m e m m m m m a e a p e w w m m p t p e e 0 N N A W N = O O W e N N E s W N = D [V. WITNESS ROY L LRLAND’S TESTIMONY SHOULD BE EXCLUDED PURSUANT TO ATTORNEY-CLIENTPRIVILEGE Plaintiff's proposed Joint Statementstates that Roy Litherland is expected to testify regarding communication he had with Osamu Kawamura relating to the Kawamura Family Trust. Roy Litherland was Osamu Kawamura’s attorney prior to Osamu’s retention of Mr. Lieberman. The attorney-client privilege survives death until the decedent’s personal representativeis discharged. See Cal. Evid. Code Ann. § 954. Because Osamu Kawamura’s estate has not been wound up, the privilege survives and any testimony or documents from Roy Litherland relating to his representation of Osamu Kawamura. Thus, such testimony and documents should be excluded because no exceptions to the privilege apply in this case. VI. WITNESS MARIA MARCHAND’S TESTIMONY SHOULD BE EXCLUDED BECAUSEIT IS INADMISSIBLEUNDER EVIDENCECODESECTIONS350,352, 1101(A), AND 1104 Testimony of Maria Marchand, who filed a complaint against Defendant Shiffer in a wholly unrelated action, should be excluded from testifying on the grounds that Ms. Marchand’s relationship and communications with Defendant are irrelevantto the claimsraised in Plaintiff’s complaint. See Evid. Code § 350. Further, any testimony relating to Ms. Marchand’s relationship and communications with Defendant is impermissible character evidence under Evidence Code sections 1101(a) and 1104. See Evid. Code §1101(a) (evidence of a person’s character or a trait of his or her characteris inadmissible when offered to prove the person’s conduct on a specified occasion, whetherin the form of an opinion, evidence ofreputation, or evidence ofspecific instancesof his or her conduct); see also id. at § 1104 (evidence of a trait of a person’s character with respectto care or skill is inadmissible to prove the quality ofhis or her conduct on a specified occasion). Shiffer believes that Plaintiff may attempt to present testimony and evidence of “other bad acts,” such as, but not limited to, a complaintfiled against Shiffer in unrelated litigation and a complaint filed by Shiffer in an unrelated business dispute. The testimony 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 7 SHIFFER’S MTN IN LIMINE NO. SEVEN TO EXCLUDE 3 WITNESSES, NOT DISCLOSED TO DEF. IN RESP.TO DEFENDANT'S DISCOVERY REQUESTS, FROM TESTIFYING AT TRIAL (Case No. CGC-16-552848) O o 0 6 ~ ~ O N t h A W N 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. Plaintiffs witness listed above 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 of the issues and require extended collateral inquiry. See Law Rev. Comm'n Commentto Ev.C. § 1101; Bowen v. Ryan (2008) 163 Cal.App.4th 916, 923. Even if the aforementioned testimony did not constitute impermissible character evidence under Section 1101, the evidence would still be inadmissible because “evidence of a . . . person’s character with respect to 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 testimony of Shiffer’s conduct in other unrelated litigation or on other unrelated occasions to 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. Further, testimony from this witness 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. Evid. Code § 352. Here, Plaintiff's First Amended Complaint simply does not raise 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. nn 8 SHIFFER’S MTN IN LIMINE NO. SEVEN TO EXCLUDE 3 WITNESSES, NOT DISCLOSED TO DEF. IN RESP.TO DEFENDANT'S DISCOVERY REQUESTS, FROM TESTIFYING AT TRIAL (Case No. CGC-16-552848) 0 O 0 0 ~ ~ O O W n H S H W O N N O N N N N N N R N R N e m m m e m e m e t p m m m p a be t p e 0 0 ~ ~ O n h h B A W O N = O Y O 0 O N N B R W O N = O VII. CONCLUSION Defendant was surprised when Plaintiff disclosed these three additional witnesses only five days before the trial date. Defendant will be unfairly prejudiced if Plaintiff is permitted to call any of these witnesses at trial or introduce testimony or facts obtained from these witnesses at trial because such testimony and facts were not disclosed to Defendant in discovery. Forthe foregoing reasons, Defendant John Shiffer respectfully requests that the Court issue the following Orders: 1. Order prohibiting Plaintiff from calling any of the 3 witnesses listed in Plaintiff’s proposed Joint Statement Regarding Trial Time Limits that were never disclosed to Defendant in response to Defendant’s discovery requests and were disclosed 26 days after the close of discovery on November 29, 2017; 2. Order prohibiting Plaintiff from testifying to the existence of any of the 3 witnesses listed in Plaintiff's proposed Joint Statement Regarding Trial Time Limits that were never disclosed to Defendant in response to Defendant's discovery requests and were disclosed 26 days after the close of discovery on November 29, 2017alleged witnesses whom Plaintiff failed to timely disclose in his deposition testimony; and, 3. Order prohibiting Plaintiff from introducing testimony or documents obtained from these witnesses due to Plaintiff's failure to disclose such information in response to Shiffer’s discovery requests; 4. Order prohibiting Plaintiff from calling witness Roy Litherland or introducing any documents obtained from him because any such testimony and documents are protected by the attorney-client privilege; and, nn mn nn nn i mn 9 SHIFFER’S MTN IN LIMINE NO. SEVEN TO EXCLUDE 3 WITNESSES, NOT DISCLOSED TO DEF. IN RESP.TO DEFENDANT'S DISCOVERY REQUESTS, FROM TESTIFYING AT TRIAL (Case No. CGC-16-552848) o O 0 8 ~ ~ N N i n B R W N - N N R N N N N N E m e e e m e t e t em t m m e t p t p e 5. Order prohibiting Plaintiff from calling witness Maria Marchand or introducing any documents obtained from her because any such testimony and documents are inadmissible under Evidence Code sections 350, 352, 1101(a), and 1104. DATED: November 29, 2017 THE LAW QFFICES OF GARY R. LIEBERMAN By: GARY R. LIEBERMAN Attprneys for Defendant JOHN SHIFFER 10 SHIFFER'S MTN IN LIMINE NO. SEVEN TO EXCLUDE 3 WITNESSES, NOT DISCLOSED TO DEF. IN RESP, TO DEFENDANT'S DISCOVERY REQUESTS, FROM TESTIFYING AT TRIAL (Case No. CGC-16-552848) O o 0 N N B R A W w N D 10 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF SERVICE I am a citizen of the United States, I am over the age ofeighteen 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. SEVEN TO EXCLUDE 3 WITNESSES, NOT DISCLOSED TO DEFENDANT IN RESPONSE TO DEFENDANT’S DISCOVERY REQUESTS, FROM TESTIFYING AT TRIAL on the parties identified below, through their attorneys ofrecord, by placing true copies thereof in 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 ofthe addressee(s) following ordinary business practices. J: By Overnight Courier -- I caused each such envelope to 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. v__: By Personal Service - I caused each such envelope to be given to a messengerat 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(e). 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 ofperjury under the laws ofthe State of California that the foregoing is true and correct to the best of my knowledge. EXECUTED on November 29, 2017 at Sa isco, Californig. Rosemarie Vernola (type/print name) (signature) 11 SHIFFER’S MTN IN LIMINE NO. SEVEN TO EXCLUDE 3 WITNESSES, NOT DISCLOSED TO DEF. IN RESP. TO DEFENDANT'S DISCOVERY REQUESTS, FROM TESTIFYING AT TRIAL (Case No. CGC-16-552848)