Judge: Mark H. Epstein, Case: SC123117, Date: 2022-10-24 Tentative Ruling
Case Number: SC123117 Hearing Date: October 24, 2022 Dept: R
The Court has reviewed the in limine motion upon which no ruling was made last week. The Court will GRANT the motion as it relates to the Kohl’s case. That is an unpublished appellate case in which the Court of Appeal held that Illulian and JEM (both of whom are parties here) entered into an illegal contract to defraud Kohl’s out of grant money. While it is true that the appellate court did find the Illulian/JEM scheme to be a fraud, the Court believes that the time that will be required if this is allowed into evidence substantially outweighs any probative value it might have. First, unlike a criminal conviction of a crime involving moral turpitude, where the standard of proof is beyond a reasonable doubt, this is a civil action. Nor was fraud even the issue in the complaint. This was a suit between Illulian/JEM on the one hand and their alleged fraudulent co-conspirator on the other in which Illulian was seeking to enforce the conspirators’ agreement; Kohl was actually not a party. Illulian will certainly want to present evidence explaining they whys and wherefores of the agreement found to be fraudulent, and the only probative value defendant can articulate is that he committed fraud or a fraud-like act then, so he probably did so again here. Further, the jury may well be confused by the back and forth into making more of that ruling than is proper. That ruling did not find Illulian and JEM to be fraudsters in general; it found their contract to be an attempt to defraud Kohl’s. And there will be challenges even to that ruling. The undue prejudice also substantially outweighs any legitimate probative value.
It is unclear if Illulian is trying to exclude general character evidence. If so, the Court is inclined to GRANT the motion as to that as well. Again, there is limited time here and the additional time consumption far outweighs any probative value. And it will almost certainly require mini-trial after mini-trial.
To the extent that Illulian is trying to exclude evidence involving this particular transaction, though, the motion is DENIED. This transaction and the background for it are very pertinent. That goes to the heart of the case and the Court believes it can be probative enough to overcome a 352 objection, at least at the in limine stage.
Turning to scheduling and other issues. In light of the various in limine rulings, the Court will ask the parties to submit revised witness and exhibit lists. The Court is unsure whether these rulings have any other effect on the FSC materials. The new lists will be submitted no later than close of court on Thursday, October 27, 2022. The Court reminds the parties of their stipulation that plaintiff will have 30 hours of testimony (direct and cross) and defendant will have 20 hours (direct and cross). The Court has stated that it will “chess clock” the parties and that when time expires, they will have waived their right to conduct further examination or cross-examination. That means that if defendant has used up 20 hours during plaintiff’s case in chief and Rav-Noy has not yet been called, then the defense has waived the right to call him.
The case will trail from week to week starting on October 31, 2022. Counsel is to appear each week (telephonically is ok) to get an update as to whether they will begin later in the week. Given the time by which the case must come to trial to avoid being dismissed, the Court intends to require all parties to be prepared to begin trial on one days’ notice (meaning that on a Monday, the Court could say that trial begins Tuesday; the Court will not call mid-week) and to not be engaged in any activity that would preclude their ability to be so prepared.
The Court has received today the parties’ briefing on prospective economic advantage. Because it was not uploaded until this morning, the Court has not yet reviewed it. In light of the Court’s ruling above, the Court will consider the new briefs and rule on Monday, October 31, 2022. NO FURTHER BRIEFING IS ALLOWED.