(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment/personal injury case and its proceedings.)

DEFENDANT SHOULD BE SANCTIONED FOR FAILING IN BAD FAITH TO SUBMIT TO AN AUTHORIZED FORM OF DISCOVERY

Nothing excuses the fact that defendant has refused to commit to a date for his deposition.

This assertion highlights the fact that he has acted in bad faith and will continue to do so unless and until the Court orders him to appear for his deposition in this sexual harassment case. As stated above, there is no substantial justification for Defendant not to appear for his deposition before August 2006 and, therefore, sanctions are warranted. (C.C.P. §§2023 and 2025(j)(3)). Moreover, Ms. Brown has been forced to simply take Defendant's word that he will be available in August. There is no guarantee that Defendant will suddenly become unavailable or on another extended business trip in August, especially in light of the fact that Defendant will not commit to a date in August for his deposition at this time.

California courts have long recognized the potential for discovery abuse and noted, We are also aware the discovery process is subject to frequent abuse and, like a cancerous growth, can destroy a meritorious case or defense ... (Mannino v. Superior Court (1983) 142 Cal.App.3d 776, 778.) In adopting this theory, the court in Calcor Space Facility Inc. v. Superior Court (1997) 53 Cal.App.4th 216, added, Our observation of the day to day practice of law leads us to conclude this cancer is spreading and judges must become more aggressive in curbing these abuses. (53 Cal.App.4th at 219-220.)

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment/personal injury case and its proceedings.)

DEFENDANT'S DEPOSITION MUST BE COMPELLED BECAUSE WITHOUT A COURT INTERVENTION DEFENDANT WILL CONTINUE TO DELAY HIS APPEARING FOR DEPOSITION.

Defendant is clearly attempting to postpone the inevitable. Upon the filing of the instant action and the service of a deposition notice, Defendant suddenly became unavailable. When Ms. Brown's counsel offered to fly to New York so that Defendant's alleged extended business trip would not be disrupted, Defendant refused. Ms. Brown has begged and pleaded for dates upon which Defendant would be back in Los Angeles and available for his deposition. Ms. Brown has received none.

Rather, Defendant has maintained that he will be available in August. When in August? Ms. Brown has no idea because Defendant refuses to commit to a date at this time. Presumably, Defendant expects Ms. Brown to wait until August and then, upon his return to Los Angeles, attorneys for both sides can schedule a deposition. According to Defendant, such behavior is permissible because no trial date has been set in this sexual harassment matter.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment/personal injury case and its proceedings.)

LEGAL ARGUMENT

THIS COURT HAS THE AUTHORITY TO COMPEL DEFENDANT TO APPEAR FOR HIS DEPOSITION

California Code of Civil Procedure (hereinafter C.C.P. ) § 2025(j)(3) provides, in relevant part
If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party ... without having filed a valid objection under subdivision (g), fails to appear for examination, or to proceed with it, or to produce for inspection any document or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document or tangible thing described in the deposition notice. Id.

Moreover, the Code defines the "misuse" of the discovery process as a failure to respond or to submit to an authorized method of discovery. (C.C.P. § 2023(a)(4)). In the instant action, Ms. Brown properly noticed Defendant's deposition and Defendant has flatly refused to comply with the deposition notice. To make matters worse, Defendant has refused to provide dates on which he could appear at his deposition in this egregious sexual harassment case. Accordingly, this Court has the power to compel Defendant to attend his deposition forthwith. (See Part 5 of 6.)

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment/personal injury case and its proceedings.)

Three more times on June 8, 2006, Ms. Brown's counsel requested firm deposition dates for Defendant's deposition. On or about June 9 and June 10, Ms. Brown's counsel again requested concrete deposition dates. In response to Ms. Brown's counsel's emails, Mr. Steinman responded on or about June 10, 2006 and stated that there was no need to depose Defendant before August since there was no trial date set in this sexual harassment matter.

Ms. Brown's counsel responded to Mr. Steinman's email by again offering to fly to New York to take Defendant's deposition and reiterating that the fact that there has not yet been a status conference or trial date set is of no moment and is not a valid excuse to delay the taking of Defendant's deposition.

In all, Defendant has contended that he must not appear for his deposition before August 2006 because: 1) he is on a business trip in New York; 2) this case has not been set for trial; and 3) Ms. Brown will not be prejudiced if forced to wait. None of these excuses are legitimate reasons as to why Defendant's deposition should be postponed for months. Moreover, to this day, defendant has failed to give Ms. Brown concrete dates upon which he would be available for his deposition.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment/personal injury case and its proceedings.)

STATEMENT OF FACTS.

On or about June 1, 2006, Ms. Brown properly noticed Defendant's deposition to take place on or about June 24, 2006. Defendant refuses to appear for his deposition. In order to avoid the need for Court intervention, Ms. Brown has made numerous attempts to meet and confer with Defendant to no avail. Ms. Brown's counsel and Defendant's counsel made numerous exchanges via email in attempt to meet and confer.

On or about June 6, 2006, Joel Steinman (hereinafter "Mr. Steinman"), counsel for Defendant, notified Ms. Brown's counsel that his client was unavailable for his deposition on June 24, 2006. On or about June 7, 2006, Mr. Steinman again reiterated that Defendant would be unavailable until August 2006. Mr. Steinman also stated that Ms. Brown would not be prejudiced by this delay since a trial date was not yet set.

Later that day, Ms. Brown's counsel sent Mr. Steinman an email in again asking for concrete dates for Defendant's deposition. Ms. Brown's counsel also reminded Mr. Steinman that Ms. Brown need not show that she would be prejudiced by the delay under the Code.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment/personal injury case and its proceedings.)

This motion is made pursuant to California Code of Civil Procedure §§ 2025(o) and 2023 on the grounds that Defendant Doug Jeremy refuses to appear for his properly noticed deposition and continues to contend that he is unavailable for his deposition until August 2006 at the earliest. At this time, Defendant refuses to commit to a date for his deposition.

Plaintiff brings this Motion because Defendant Jeremy's reasons for failing to make himself available for deposition are unreasonable and constitute a blatant attempt on Defendant's part to impede Plaintiff's right to conduct discovery in this matter. Plaintiff has made reasonable efforts to meet and confer in order to avoid the need for court intervention to no avail.

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION.

Defendant Doug Jeremy (hereinafter Defendant ) is accustomed to getting what he wants on his own terms. As the outspoken owner of Defendant Universal Design, Inc., Defendant sets his own rules. In fact, if one were to look at his behavior, he or she would conclude that Defendant answers to no one. Whether he is "playing with himself' in front of a Jane magazine reporter, prancing around in his "dick and ball cover" in front of his employees, or walking around the office in his underwear, one thing remains clear: no one tells Defendant what he can or cannot do.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment case and its proceedings.)

Ms. Black's Prior Sexual Behavior With Individuals Others Than Plaintiff Has No Probative Value And Is Unduly Prejudicial.

Evidence Code section 352 provides:

The court in its discretion may exclude evidence 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 misleading the trial. Evidence Code Sec. 352.

In the instant matter, the clear intent and likely result of inquiring into and introducing evidence of Ms. Black's prior sexual conduct is to prejudice the jury against Ms. Black and XYZ. Such evidence, however, has no probative value and no place in this trial. Indeed, as stated most eloquently by the California Legislature:

The Legislature concludes that the use of evidence of a complainant's sexual behavior is more often harassing and intimidating than genuinely probative, and the potential for prejudice outweighs whatever probative value that evidence may have. Absent extraordinary circumstances, inquiry into those areas should not be permitted, either during discovery or at trial. Id. at 14 (citing Stats. 1985, ch. 1328, § 1, pp. 4654-4655.)

No such extraordinary showing has or can be made here. On the other hand, the prejudicial effect of such testimony is quite apparent in light of the issues of this case.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment case and its proceedings.)

The holdings of these California and federal courts, in addition to the California Legislature's stated intent, clearly apply to the underlying complaint of sexual harassment by Ms Black in this case. Allowing evidence of Ms. Black's prior sexual conduct, including prior complaints of sexual harassment, with anyone other than the alleged harasser would undermine the clear intent of the California Legislature to prevent the discouragement of complaints and the unnecessary badgering of harassment victims. See Rieger v. Arnold, 104 Cal. App. 4th, at 460. Ms. Black's conduct with individuals other than the Plaintiff, whether in or out of the workplace, is not relevant to the central issue of whether Plaintiff engaged in conduct that violated XYZ's sexual harassment policy justifying his termination.

A case based upon the conduct of a [claimant's] coworkers should not be turned into an investigation of [claimant's] prior sexual history. Knoettigen v. Superior Court, 224 Cal. App. 3d 11, 15 (1990). In short, Ms. Black's private life and/or sexual history with individuals other than Plaintiff does not provide lawful consent to the offensive sexual conduct engaged in and acknowledged by Plaintiff in this case, and which resulted in his termination.

Moreover, inquiry into sexual aspects of Ms. Black's private life not only intrudes upon Ms. Black's right to privacy, but the privacy of third parties as well. See Mendez v. Superior Court, 206 Cal. App. 3d 557, 568 (1988). Insofar as [Plaintiff] seek[s] to pry into [Ms. Black's] sexual conduct with others, [he] necessarily seek[s] to pry into the third party's sexual conduct. (citation). Id. When privacy is implicated, the appellate courts have been vigilant to provide extraordinary relief to prevent impairment of these protections. Knoettigen v. Superior Court, 224 Cal. App. 3d. at 14-15. (citations omitted) While theoretically such third parties could seek to appear in this action and oppose [Plaintiff's efforts] (citation), such privilege under these circumstances is meaningless.... See Mendez v. Superior Court, 206 Cal. App. 3d at 568.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment case and its proceedings.)

In Rieger, the court found that testimony about a sexual harassment plaintiff's racy banter, sexual horseplay, and statements concerning prior proposed or planned sexual exploits were subject to exclusion under California Evidence Code section 1106 unless such conduct involved the alleged perpetrator. See id. at 460-467. The Rieger court also noted:

The legislature declared its intent in enacting section 1106 as follows: [I]t is the existing policy of the State of California to ensure that causes of action for...sexual harassment, sexual assault, or sexual battery are given proper meaning. The discovery of sexual aspects of complainant's [sic] lives, as well as those of their past and current friends and acquaintances, has the clear potential to discourage complaints and to annoy and harass litigants [which] is unnecessary and deplorable. Without protection ..., individuals whose intimate lives are unjustifiably and offensively intruded upon might face the ... risk of enduring further intrusions into details of their personal lives in discovery, and in open quasi-judicial or judicial proceedings. [ ] ... [A] similar state of affairs once confronted victims in criminal prosecutions for rape ....

The Legislature has taken measures to curb those abuses in rape proceedings. It is the intent of the Legislature to take similar measures in sexual harassment ... cases. [ ] The Legislature concludes that the use of such evidence of a complainant's sexual behavior is more often harassing and intimidating than genuinely probative.... (citation omitted). Id. at 460.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment case and its proceedings.)

ARGUMENT

A. Legal Standards Governing Motions In Limine.
A party may bring a motion in limine to exclude evidence on the same grounds as any evidentiary objection that may be made at trial. A court may make an in limine order that counsel and witnesses may not mention objectionable matters before the jury, to avoid creating an improper inference in the jurors' minds that a subsequent instruction to disregard those matters may not cure. A trial court has inherent power to entertain and grant a motion in limine. 3 Witkin, California Evidence (4th ed.), § 368.369.

B. Inquiry Into And Admission Of Evidence Of Ms. Black's Prior Sexual Conduct With Individuals Other Than The Harasser Is Irrelevant and Inadmissible.

Under California Evidence Code section 350, no evidence is admissible except relevant evidence. Cal. Evid. Code § 350. Relevant evidence is defined as any evidence having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. Cal. Evid. Code § 210. Defendants anticipate that Plaintiff will attempt to elicit testimony and submit evidence regarding Ms. Black's prior sexual history and/or conduct with others, including prior complaints by Ms. Black of sexual harassment against individuals other than Plaintiff, in an attempt to show that the conduct complained of by Ms. Black was not unwelcome or offensive and to improperly impugn Ms. Black's character. Such evidence is not relevant to establishing whether Defendant XYZ discriminated against Plaintiff.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment case and its proceedings.)

Defendants' Motion In Limine to Exclude Evidence of Defendant Tamara Black's Prior Sexual History

INTRODUCTION

Defendants XYZ Security, Ken Brown, Tim Lee, Sondra Green, and Tamara Black (collectively "Defendants") respectfully move this Court, in limine, to preclude Plaintiff, Bobby White ("Plaintiff"), his counsel, and witnesses from commenting upon, inquiring into, and introducing evidence at trial relating to Ms. Black's alleged past sexual conduct with anyone other than Plaintiff, and prior complaints of sexual harassment Ms. Black made unrelated to Plaintiff. This motion is made on the grounds that evidence of past sexual conduct with individuals other than Plaintiff is not relevant to the issues in this case. Whether Plaintiff was terminated because of his race and gender does not turn on the private sexual behavior of Ms. Black. The admission of such evidence, introduced by Plaintiff in an effort to bolster his claims, also is prohibited as a matter of law.

This motion is based on the California Evidence Code sections 350, 1106, and 352 the California Code of Civil Procedure section 2017.220, the memorandum of points and authorities set forth below, the papers and records filed herein, and such oral and documentary evidence as may be presented at the hearing of this motion.

STATEMENT OF FACTS

Plaintiff has sued his former employer, XYZ Security and various of his co-workers, following his termination in October 2005 for violation of XYZ's harassment and discrimination policy.

SUMMARY OF FACTS

Plaintiff was falsely accused of sexually harassing defendant Tamara Black. Defendants' investigations into these allegations were incredibly sloppy and shoddy, and not in compliance with their own policies. Defendants, through their expert witness disclosure, have declared that Hall would offer testimony on the following subjects:

It is anticipated that Ms. Hall will offer testimony relating to human resource matters, including but not limited to, the prevention of discrimination and harassment, and responding to complaints of discrimination and harassment, effective investigation procedures generally and particularly as the apply to the investigations done in this case. Ms. Hall will be asked to review any opinions offered by Plaintiff's expert and offer her own opinions in rebuttal.

LEGAL ARGUMENT

A. Ms. Hall's Testimony Should Be Excluded To The Extent It Consists of Improper Legal Conclusions, Usurping The Function of The Trier of Fact To Determine The Reasonableness of Defendants' Conduct

Expert opinion testimony is inadmissible when it involves the manner in which the law should apply to a particular set of facts and includes a legal conclusion based upon the analysis. (See Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1179.) Even if the expert's opinion does not address a question of law, it is not appropriate if it invades the province of the jury to decide a case. An expert opinion is supposed to help the jury in doing its work, not usurp the function of the jury. (Id. at 1183.) Expert opinion about the significance of evidence does not assist the jury but instead creates an unacceptable risk that a jury would pay unwarranted deference to the expert's expertise who, in reality, may be in no better position than the jury to evaluate the evidence. (Kotla v. Regents of the Univ. Of California (2004) 115 Cal.App.4th 283, 293.) When opinions are nothing more than an attempt to direct the jury to the ultimate conclusion that the expert wants them to reach, such opinions are inadmissible, as the opinion amount to advocacy not testimony. (Summers, 69 Cal.App.4th at 1185.)

Plaintiff's Motion In Limine Exclude Testimony of Defendants' Human Resources Expert Tina Hall

INTRODUCTION

Plaintiff Bobby White (hereinafter "Plaintiff" ) respectfully moves the Court for an order in limine to exclude any testimony from Defendants' proposed human resources expert Tina Hall (hereinafter "Hall"). Plaintiff brings this motion on the grounds that Hall's proposed testimony would improperly usurp the role of the jury by offering her own unnecessary and improper legal conclusions as to how this case should be decided. Hall will offer opinions, under the mantle of expert, that XYZ Security applied effective investigation procedures to the investigations done in this case. Hall's proposed testimony should be excluded under Evidence Code section 801 because it is not related to a subject sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. Further, allowing Hall to offer her improper legal conclusions would unduly prejudice Plaintiff, while wasting the time and resources of the Court, the parties and the jury. Hall's testimony regarding plaintiff's alleged sexual harassment, therefore, also should be excluded under Evidence Code section 352.

This motion is based on the supporting memorandum of points and authorities, the pleadings, records and papers on file in this action, herein, and upon such further oral and documentary evidence as may be presented at the time of the hearing. (See Part 2 of 2.)

Mr. Black’s Opinions Will Assist the Trier of Fact and Therefore Are Relevant and Admissible.

Finally, defendants argue that Mr. Black’s opinions as to the City's violations of its internal policies and procedures are not relevant to any of the issues in this case, and that testimony about those opinions might confuse or mislead the jury. On the contrary, defendants failure to follow its own policies and procedures, with respect to the prevention of sexual harassment and their response to complaints of sexual harassment, are evidence which tend to prove the prior notice element of plaintiffs' sexual harassment cause of action. It also proves their failure to prevent sexual harassment itself (including the mandate to conduct an investigation) and retaliation. See, e.g., Kotla v. Regents of the Univ. of Calif. (2004) 115 Cal.App.4th 283, 294 n. 6 [opinion testimony by a qualified expert that an employer significantly deviated from its ordinary personnel procedures in the aggrieved employee's retaliation case might well assist the jury in its factfinding];

Silva v. Lucky Food Stores, Inc. (1998) 65 Cal.App.4th 256, 263 [grant of summary judgment against plaintiff employee in wrongful termination case upheld in part because plaintiff had not presented any expert witness testimony regarding whether the employer conducted an appropriate investigation of underlying sexual harassment claim].

Even if some of the jurors have some familiarity with them, the elements of an effective intervention and prevention program for workplace sexual harassment are not commonly known by a typical juror. Accordingly, courts in California and other jurisdictions are finding that expert witness testimony is appropriate to establish whether the employer acted reasonably to prevent harassment and to respond to reports of alleged harassment. See, e.g., Kotla v. Regents of the Univ. of Calif., supra, 115 Cal.App.4th at 294 n. 6; Holly D. v. Calif. Inst. of Tech. (9th Cir. 2003) 339, F3d. 1158, 1177; Shrout v. Black Clawson Co. (S.D. Ohio 1988) 689 F.Supp. 774, 777-778; Kimzey v. Walmart Stores, Inc. (8th Cir. 1997) 107 F.3d 568, 571.

Mr. Black’s Opinions Do Not Constitute the Improper Admission of Hearsay Evidence.

Defendants next argue that Mr. Black’s opinions are based on hearsay and that his report constitutes multiple hearsay. Plaintiffs do not intend to offer Mr. Black’s Expert Report into evidence at trial, so defendants' hearsay objection with respect to it is moot. More importantly, however, as noted above, expert opinions may be based on inadmissible matters, specifically including hearsay, as long as those matters are the type on which experts reasonably rely.

Experts reasonably rely on a plaintiff's description of what happened to him and how it affected him. As also noted above, experts may not testify as to the details of that hearsay. For example, an expert may testify that his or her opinion as to the nature of a personal injury is based on the injured person's hearsay statements, but such hearsay cannot be used to prove the cause of the injury. See In re Cheryl H. (1984) 153 Cal.App.3d 1098, 1120 [overruled on other grounds in People v. Brown (1994) 8 Cal.4th 746, 763.]

Similarly, Mr. Black may testify here that his opinions regarding the defendants' conduct before and after the 2007 Gay Pride Parade, with respect to plaintiffs' unwillingness to participate, are based on hearsay statements by the plaintiffs. Nonetheless, that hearsay itself cannot be used to prove, for example, defendants' failure to prevent sexual harassment or retaliation. (See Part 7 of 7.)