Judge Christopher K. Lui, Case BC492238 2023-05-15 Tentative Ruling

Defendants indicate that they do not oppose these motions. Therefore, the Court GRANTS these motions.

This motion is styled as a motion to preclude “irrelevant disparaging statements” regarding Plaintiffs, and is directed at four categories of evidence:

3. That Plaintiffs pay “kickbacks” to fair organizers and give them preferential treatment.

At the hearing on the motions, Defendants agreed that they will not offer evidence in categories 1 and 2. The motion is GRANTED with regard to those categories.

With regard to categories 3 and 4, Defendants argued at the hearing that the evidence might be relevant to their alternative causation arguments. However, Defendants did not file a written opposition and did not provide provide an offer of proof as to what the evidence might be and how it might relate to their alternative causation theory. The motion is GRANTED with regard to these categories, subject to reconsideration if Defendants can provide a detailed explanation of the evidence they seek to offer, and how it might be relevant.

With this motion, Plaintiffs seek to exclude evidence relating to other litigation to which the Plaintiffs were parties. Plaintiff argue that evidence of other litigation is inadmissible character evidence, and that its admission would result in undue prejudice or a waste of time pursuant to Evidence Code section 352.

The Court will require further argument on this motion and reserves ruling. Neither party should make any reference to other litigation involving the parties (except, of course, the previous trial of the instant case) until further order of the Court.

This motion seeks to preclude Defendants from introducing evidence at trial regarding documents that Defendants did not request Plaintiffs to produce during discovery.

The motion is not framed in reference to specific documents or material, so the Court will not prospectively exclude any evidence. To the extent that Defendants are able to provide a proper foundation for any testimony or documents, such evidence will not be precluded.

The motion is DENIED WITHOUT PREJUDICE to Plaintiffs raising objections during trial.

This motion is directed at 8 different categories of evidence. During the hearing on these motions, Defendants stipulated that they will not offer evidence in categories 3-7, so the motion is GRANTED with regard to those categories, subject to potential reconsideration if circumstances change at trial.

With regard to category 1 (improper or inflated billing to insurance companies), category 2 (the alleged use of provider numbers of third party dentists to submit invoices), and category 8 (evidence that Plaintiffs failed to pay invoices to other employees), Defendants argue that the evidence are relevant to damages and causation, because they tend to show that high turnover and reputational harm were occurring concurrently with the time period following Defendants’ taking of the Company List.[1] The Court finds that relevance to alternative causation is a sufficient basis to allow evidence in these categories, so the motion is DENIED as to these categories.

This motion seeks to preclude Defendants from offering evidence or arguments concerning the financial condition of either Plaintiffs or Defendants. Plaintiffs contend that at the previous trial, Defendants’ counsel raised inflammatory arguments concerning Plaintiffs’ profit motivation, Defendant Medina’s work generating “millions” for Plaintiffs, and other “big guy vs. little guy” arguments.

Defendants argue in response that a complete bar on discussions of wealth or profits would prevent the parties from fairly presenting their cases.

This motion illustrates the reason that motions in limine must be directed at specific items of evidence in order to be useful. Otherwise the Court has no way to fashion an enforceable order. If the Court were to preclude Defendants from making the verbatim arguments raised in the moving papers, Defendants might make other, parallel arguments, that are outside the scope of the Court’s order.

Both the moving papers and the opposition papers appear to be overly focused on the degree to which the parties’ financial conditions are relevant to the case. Since the only claim proceeding to trial is a breach of contract claim, general arguments about wealth, profit motivation, or relative financial power are largely IRRELEVANT to the claims and defenses. There are no tort claims in this case. There is no claim for punitive damages in this case. Therefore, the parties’ relative wealth or general profit motives have little reason—other than improper appeals to emotion—to be the subject of testimony or argument. The parties should exercise caution with regard to the offer of evidence or argument directed at such topics.

This motion requests that the Court preclude the testimony of Plaintiffs’ expert Leonard Lyons, or in the alternative, limit the scope of his testimony. The motion argues that Lyons’ testimony is built on improper methodology that “assumed causation” and did not account for other potential causes of decreasing revenue/profits and a loss of business value. Defendants argue that this Court should infer, based on the Court of Appeal’s decision, “that a jury will likely reject Lyons’s lost profit theory.” (Defts’ Mem. Pts. & Auths. at 1.)

In response to this motion, Plaintiffs argue that Defendants unsuccessfully raised the same arguments before Lyons testified in the first trial, and after a 402 hearing, Lyons was allowed to testify. Plaintiffs argue that the supposed deficiencies in Lyons’ testimony go to weight not admissibility, and that the Court in the previous trial adopted Plaintiffs’ view.

In Sargon Enters., Inc. v. University of Southern California (2012) 55 Cal.4th 747, the California Supreme Court noted that trial courts must serve a “gatekeeper” function with regard to the admissibility of expert testimony:

The trial court's preliminary determination whether the expert opinion is founded on sound logic is not a decision on its persuasiveness. The court must not weigh an opinion's probative value or substitute its own opinion for the expert's opinion. Rather, the court must simply determine whether the matter relied on can provide a reasonable basis for the opinion or whether that opinion is based on a leap of logic or conjecture.

In the instant case, Defendants’ arguments focus on the degree to which Lyons evaluated potential alternative causes and assumed certain facts. Defendants argue that “Lyons admits he has not performed a genuine analysis regarding causation.” (Defts’ Mem. Pts & Auths. at 7.) In the 402 hearing at the previous trial, Lyons was questioned regarding his methodology, and stated that he assumed causation but considered whether or not there were alternative or other causes. (7/28/2018 Tr. at 5113.) Defendants do not provide the Court with a compelling reason to diverge from the findings made by the previous judge in this case.

Defendants point out that the Court of Appeal attributed the previous jury’s findings to its apparent rejection of Lyons’s testimony. (Opinion at 27 (noting that “gaps” in Lyons’s testimony “could well explain, at least in part, the jury’s ultimate finding that [Defendants’] mistreatment of confidential information did not injure that company.”).) But an observation that expert testimony is weak or unconvincing is an assessment of its weight, not whether it can pass muster under Sargon and Evidence Code section 801.

This motion requests that the Court preclude the testimony of Plaintiffs’ expert Alfred Joyal. Defendants contend that Joyal’s testimony is irrelevant to the sole remaining claim, since his testimony relates largely to dental marketing issues (such as the calculation of royalties) that are not at issue in the case. Defendants point out that Joyal is a general marketing expert who did not compile or validate the Company List, and that Plaintiffs’ January 9, 2023 designation of Joyal indicates that his testimony is squarely directed at trade secret claims that are not part of the case as between the remaining parties.

Plaintiffs argue that Joyal’s testimony regarding dental marketing practices will be helpful to the trier of fact in understanding what the company list was, why it was valuable, and the significance of the breaches committed by the Defendants.

The Court finds that Plaintiffs’ arguments concerning Joyal’s expertise and relevance are not sufficient. In the absence of any trade secrets claim, or any other claim that would involve the value of the Company List, its value is irrelevant. Plaintiffs also argue that the testimony would assist the jury by illustrating the “severity” of Defendants’ breach, but “severity” is not an element of breach of contract.[2]

With this motion, Defendants seek an order precluding Plaintiffs from presenting evidence pertaining to locations that are outside a 30 mile radius from Baratian’s single office location. The motion argues that “unrefuted expert testimony will show that most patients do not see a dentist more than thirty (30) miles from their place of residence or employment.” The motion does not quote, cite or identify the source of this purported testimony.

This motion appears to be a nascent attack on the underpinnings of Plaintiffs’ damages calculations, but does not present any specifically articulated basis for such a challenge under either Evidence Code section 801 or Sargon Enterprises, Inc. v. University of Southern Cal. (2012) 55 Cal.4th 747.

With this motion, Defendants request an order precluding Plaintiffs from presenting evidence or argument that they suffered damages as a result of Defendants’ taking and use of the Company List. The motion is based on arguments that such evidence is inconsistent with the prior jury’s findings and the aspects of the prior verdict that were not affected by the appeal, and that the evidence would be unduly prejudicial.

Plaintiffs oppose this motion, arguing that the Court of Appeal’s decision specifically directed the trial court to conduct a new trial on the remaining Plaintiffs’ breach of contract claim. Plaintiffs argue that the ruling sought by Defendants would essentially grant summary adjudication of the claim, in contravention of the Court of Appeal’s direction to the Court. Defendants contend that Plaintiffs’ argument misconstrues the Court of Appeal’s direction, and that the jury’s verdict as to Smile Finders has res judicata effect on Plaintiffs’ ability to relitigate issues. Defendants argue that Smile Finders’ income is derived solely from Plaintiffs’ income, and since the jury found that Smile Finders suffered no damages, Plaintiffs could not have suffered damages.

The Court agrees with Plaintiffs. This case was remanded by the Court of Appeal with instructions to give the Plaintiffs a retrial on their breach of contract claim. Defendants’ argument on this motion is essentially a contention that the Court of Appeal was wrong in that decision. This Court is not at leisure to ignore or modify a decision of the Court of Appeal.

This motion requests that the Court preclude the testimony of Plaintiffs’ expert James Vaughn. Defendants indicate that Vaughn was designated as an expert to testify regarding the process used to gather documents and information from computers belonging to the Defendants. According to Defendants, there is no relevance or utility to such testimony, because the verdict in the first trial conclusively adjudicated that Defendants took the Company List.

Plaintiffs argue that Vaughn’s testimony should be allowed because “Plaintiffs must not be deprived of the right to present evidence of the Defendants[’] tactics to misappropriate the list, the covering of their tracks . . . [and] whether the Defendants returned all copies of the Company List or turned over all relevant computers and devices for inspection.” (Opp. Br. at 2.) But as Defendants point out, these are irrelevant to the issues remaining in the case.

During oral argument on this motion, Plaintiffs asserted that this testimony is relevant to the “severity” of the breach. But as noted with regard to Joyal’s proposed testimony, severity of a breach is not an issue. Especially where Defendants have already been adjudicated to have taken the Company List, there is no need to prove a degree of moral blameworthiness as though this were some species of tort claim. As noted above, the use of the term “severity” itself implies a desire to offer this testimony purely for its prejudicial value.

[1] The Court notes that evidence regarding the submission of inflated bills or the use of other providers’ numbers to submit bills might be admissible for purposes of impeachment, and raise at least a theoretical possibility that an involved individual could seek to invoke their Fifth Amendment rights. Counsel should inquire of their clients and witnesses to ensure that no unexpected Fifth Amendment issues will interrupt testimony.

[2] Indeed, Plaintiffs’ invocation of “severity” indicates that the testimony is aimed more at prejudicial purposes than proving the elements of the cause of action.