Preview
1 RANDY RABIDOUX, SBN 293166
2
ALEXANDER T. JONES, SBN 266082
Sound Law Group, LLP
3 201 Spear Street, Suite 1100
San Francisco, CA 94105
4 Telephone: (415) 495-4499
5
Facsimile: (415) 495-3202
Email: rrabidoux@soundlawsf.com
6 ajones@soundlawsf.com
7
Attorneys for Defendant,
8
Paul Francis Deninger
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SAN MATEO – CIVIL DIVISION
11
12 In re Matter of: Case No. 19-CIV-03974
13 MARY ELIZABETH LEMASTERS,
Plaintiff, DEFENDANT’S OPPOSITION TO
14
v. PETITIONER’S MOTION IN LIMINE
15 PAUL FRANCIS DENINGER, TO EXCLUDE COMMENTARY,
Defendant, ARGUMENT, REFERENCE,
16 SUGGESTION, EVIDENCE
THAT PLAINTIFF CAN “GET
17
ANOTHER RELATIONSHIP.”
18
19 Judge: Hon. Nancy L. Fineman
Department: 4
20
21
22 1. EVIDENCE REGARDING PLAINTIFF’S INCOME AND PAYMENT OF HER
EXPENSES IS RELEVANT TO HER DUTY TO MITIGATE DAMAGES.
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The extent to which Plaintiff has mitigated her damages is directly relevant to this proceeding.
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The basis for Plaintiffs complaint teeters upon the vague allegation that Defendant promised early in the
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parties' romantic relationship to "make sure [Plaintiff is] financially secure" and that Defendant has
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subsequently breached that contract. Plaintiff seeks monthly financial support commensurate with the
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lifestyle she lived with Defendant for the rest of her life to make her whole. If Plaintiff has now
1.
DEFENDANT’S RESPONSE TO PETITIONER’S MOTION IN LIMINE
1 successfully replaced the financial support that she formerly received from Defendant with other sources
2 of income, including regular, recurring payments from a new romantic partner, her new arrangement is
3 directly relevant to her contract claim and her duty to mitigate any damages under the law. “A party
4 injured by a breach of contract is required to do everything reasonably possible to negate his own loss
5 and thus reduce the damages for which the other party has become liable.” Brandon & Tibbs v. George
6 Kevorkian Acct. Corp. (1990) 226 Cal. App. 3d 442, 460.
7 Plaintiff’s analogy to tort law, and personal injury actions, is misguided. This case involves a
8 contract claim. Courts have recognized a distinction between the two bodies of law, specifically with
9 respect to the reduction of damages based on mitigating factors. See e.g., Plut v. Fireman's Fund Ins.
10 Co. (2000) 85 Cal. App. 4th 98, 108 (collateral source rule explicitly limited to tort and inapplicable to
11 contract damages). Contract law is clear that “the doctrine of mitigation of damages holds that a plaintiff
12 who suffers damage as a result of ... a breach of contract ... has a duty to take reasonable steps to mitigate
13
those damages.” Agam v. Gavra (2015) 236 Cal. App. 4th 91, 111 (internal citations omitted). Courts
14
have also held that “loss of bargain” damages are unavailable to a Plaintiff where he or she ends up in a
15
better position than if the contract had been fully performed. Spurgeon v. Drumheller (1985) 174 Cal.
App. 3d 659, 665 (“no loss of bargain damages are available to a seller if there is a resale at the same or
16
a higher price than the contract price”). Plaintiffs in a contract lawsuit are generally barred from doubly
17
enriching themselves by fully collecting from Defendant and profiting from any mitigation attempts.
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See e.g. Brandon & Tibbs, 226 Cal. App. 3d at 467 (where mitigation efforts resulted in a net profit for
19
the Plaintiff, the court properly reduced Plaintiff’s damages to limit “double recovery”).
20
Contrary to Plaintiff’s assertion that Defendant has attempted to “wiggle out of liability by
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conjuring up a possible future marriage or relationship that would provide Plaintiff with support,”
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nothing here is speculative. The evidence shows that Plaintiff receives regular monthly sums from an
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individual named Martin Zizi; however, the full extent of Mr. Zizi’s financial support is unclear.
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Moreover, if Mr. Zizi is a new romantic partner, he likely has relevant knowledge of Plaintiff’s efforts
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(or lack of efforts) to seek employment (another aspect of her failure to mitigate). Under the law,
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Defendant should be permitted to present evidence to show that Plaintiff has mitigated her claim for
27
2.
DEFENDANT’S RESPONSE TO PETITIONER’S MOTION IN LIMINE
1 damages. Plaintiff’s efforts to exclude this evidence is tantamount to arguing that she is entitled to an
2 impermissible windfall from Defendant. She currently receives the same level of financial support from
3 another private source that she seeks to recover from Defendant. This position is contrary to the
4 established principals of contract law which allow for evidence regarding mitigation to be presented.
5 Plaintiff contends that evidence of her current finances, income, and payment of living expenses
6 is neither relevant nor appropriate to the adjudication of her claims. Yet, Plaintiff calculated her claim
7 for damages based on monthly payments she contends that she needs to support herself and lost wages
8 based on diminished earning capacity. Evidence of her current income, including regular, recurring gifts
9 from a new partner is relevant and its probative value substantially outweighs any possible prejudice.
10 Such evidence is necessary to determine the extent to which Plaintiff has mitigated her claim for
11 damages.
12 For the aforementioned reasons, I request the Court deny Plaintiff’s motion in limine.
13
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Respectfully Submitted,
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SOUND LAW GROUP, LLP
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17
Dated: November 21, 2022 ________________________________________
18
RANDY RABIDOUX
19
Attorneys for Defendant, Paul Francis Deninger
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21
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24
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26
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3.
DEFENDANT’S RESPONSE TO PETITIONER’S MOTION IN LIMINE
1
PROOF OF SERVICE
2
[CCP 1013a, 2015.5]
3
4 I declare that I am employed in the County of San Francisco, State of California. I am over the
age of eighteen years, and not a party to the within entitled cause. My business address is 201 Spear
5 Street, Suite 1100, San Francisco, California.
6
On November 21, 2022, I served the attached
7
• DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION IN LIMINE TO EXCLUDE
8 COMMENTARY, ARGUMENT, REFERENCE, SUGGESTION, EVIDENCE
THAT PLAINTIFF CAN “GET ANOTHER RELATIONSHIP.”
9
on the attorney for the Plaintiff listed below, addressed as follows:
10
Sunena Sabharwal, SBN 148237
11 SABHARWAL LAW OFFICES
1816 Fifth Street
12 Berkeley, CA 94710
sunenas@hotmail.com
13
BY FACSIMILE MACHINE (FAX): By personally transmitting a true copy via an electronic
14 facsimile machine between the hours of 9:00 a.m. and 5:00 p.m.
15
x BY MAIL: I am “readily familiar” with the firm’s practice of collection and processing
16 correspondence for mailing with the United States Postal Service. This document is being
deposited with the United States Postal Service today in the ordinary course of business.
17
BY FEDERAL EXPRESS: I deposited in a box or other facility regularly maintained by Federal
18
Express, an express service carrier, in an envelope designated by the said express service
19 carrier, with delivery fees paid or provided for.
20 BY PERSONAL SERVICE: By personally delivering a true copy to the addressee listed above
at the address listed above.
21
22 x EMAIL: By scanning these documents, producing a .pdf file, and personally transmitting it by
email between the hours of 9:00 a.m. and 5:00 p.m.
23
24 I declare under penalty of perjury under the laws of the State of California that the above is true
and correct, and that this declaration was executed on November 21, 2022 at Atascadero, California.
25
26 ______________________________________________________
27 Krista Spinks
4.
DEFENDANT’S RESPONSE TO PETITIONER’S MOTION IN LIMINE
Preview
1 RANDY RABIDOUX, SBN 293166 2 ALEXANDER T. JONES, SBN 266082 Sound Law Group, LLP 3 201 Spear Street, Suite 1100 San Francisco, CA 94105 4 Telephone: (415) 495-4499 5 Facsimile: (415) 495-3202 Email: rrabidoux@soundlawsf.com 6 ajones@soundlawsf.com 7 Attorneys for Defendant, 8 Paul Francis Deninger 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN MATEO – CIVIL DIVISION 11 12 In re Matter of: Case No. 19-CIV-03974 13 MARY ELIZABETH LEMASTERS, Plaintiff, DEFENDANT’S OPPOSITION TO 14 v. PETITIONER’S MOTION IN LIMINE 15 PAUL FRANCIS DENINGER, TO EXCLUDE COMMENTARY, Defendant, ARGUMENT, REFERENCE, 16 SUGGESTION, EVIDENCE THAT PLAINTIFF CAN “GET 17 ANOTHER RELATIONSHIP.” 18 19 Judge: Hon. Nancy L. Fineman Department: 4 20 21 22 1. EVIDENCE REGARDING PLAINTIFF’S INCOME AND PAYMENT OF HER EXPENSES IS RELEVANT TO HER DUTY TO MITIGATE DAMAGES. 23 The extent to which Plaintiff has mitigated her damages is directly relevant to this proceeding. 24 The basis for Plaintiffs complaint teeters upon the vague allegation that Defendant promised early in the 25 parties' romantic relationship to "make sure [Plaintiff is] financially secure" and that Defendant has 26 subsequently breached that contract. Plaintiff seeks monthly financial support commensurate with the 27 lifestyle she lived with Defendant for the rest of her life to make her whole. If Plaintiff has now 1. DEFENDANT’S RESPONSE TO PETITIONER’S MOTION IN LIMINE 1 successfully replaced the financial support that she formerly received from Defendant with other sources 2 of income, including regular, recurring payments from a new romantic partner, her new arrangement is 3 directly relevant to her contract claim and her duty to mitigate any damages under the law. “A party 4 injured by a breach of contract is required to do everything reasonably possible to negate his own loss 5 and thus reduce the damages for which the other party has become liable.” Brandon & Tibbs v. George 6 Kevorkian Acct. Corp. (1990) 226 Cal. App. 3d 442, 460. 7 Plaintiff’s analogy to tort law, and personal injury actions, is misguided. This case involves a 8 contract claim. Courts have recognized a distinction between the two bodies of law, specifically with 9 respect to the reduction of damages based on mitigating factors. See e.g., Plut v. Fireman's Fund Ins. 10 Co. (2000) 85 Cal. App. 4th 98, 108 (collateral source rule explicitly limited to tort and inapplicable to 11 contract damages). Contract law is clear that “the doctrine of mitigation of damages holds that a plaintiff 12 who suffers damage as a result of ... a breach of contract ... has a duty to take reasonable steps to mitigate 13 those damages.” Agam v. Gavra (2015) 236 Cal. App. 4th 91, 111 (internal citations omitted). Courts 14 have also held that “loss of bargain” damages are unavailable to a Plaintiff where he or she ends up in a 15 better position than if the contract had been fully performed. Spurgeon v. Drumheller (1985) 174 Cal. App. 3d 659, 665 (“no loss of bargain damages are available to a seller if there is a resale at the same or 16 a higher price than the contract price”). Plaintiffs in a contract lawsuit are generally barred from doubly 17 enriching themselves by fully collecting from Defendant and profiting from any mitigation attempts. 18 See e.g. Brandon & Tibbs, 226 Cal. App. 3d at 467 (where mitigation efforts resulted in a net profit for 19 the Plaintiff, the court properly reduced Plaintiff’s damages to limit “double recovery”). 20 Contrary to Plaintiff’s assertion that Defendant has attempted to “wiggle out of liability by 21 conjuring up a possible future marriage or relationship that would provide Plaintiff with support,” 22 nothing here is speculative. The evidence shows that Plaintiff receives regular monthly sums from an 23 individual named Martin Zizi; however, the full extent of Mr. Zizi’s financial support is unclear. 24 Moreover, if Mr. Zizi is a new romantic partner, he likely has relevant knowledge of Plaintiff’s efforts 25 (or lack of efforts) to seek employment (another aspect of her failure to mitigate). Under the law, 26 Defendant should be permitted to present evidence to show that Plaintiff has mitigated her claim for 27 2. DEFENDANT’S RESPONSE TO PETITIONER’S MOTION IN LIMINE 1 damages. Plaintiff’s efforts to exclude this evidence is tantamount to arguing that she is entitled to an 2 impermissible windfall from Defendant. She currently receives the same level of financial support from 3 another private source that she seeks to recover from Defendant. This position is contrary to the 4 established principals of contract law which allow for evidence regarding mitigation to be presented. 5 Plaintiff contends that evidence of her current finances, income, and payment of living expenses 6 is neither relevant nor appropriate to the adjudication of her claims. Yet, Plaintiff calculated her claim 7 for damages based on monthly payments she contends that she needs to support herself and lost wages 8 based on diminished earning capacity. Evidence of her current income, including regular, recurring gifts 9 from a new partner is relevant and its probative value substantially outweighs any possible prejudice. 10 Such evidence is necessary to determine the extent to which Plaintiff has mitigated her claim for 11 damages. 12 For the aforementioned reasons, I request the Court deny Plaintiff’s motion in limine. 13 14 Respectfully Submitted, 15 SOUND LAW GROUP, LLP 16 17 Dated: November 21, 2022 ________________________________________ 18 RANDY RABIDOUX 19 Attorneys for Defendant, Paul Francis Deninger 20 21 22 23 24 25 26 27 3. DEFENDANT’S RESPONSE TO PETITIONER’S MOTION IN LIMINE 1 PROOF OF SERVICE 2 [CCP 1013a, 2015.5] 3 4 I declare that I am employed in the County of San Francisco, State of California. I am over the age of eighteen years, and not a party to the within entitled cause. My business address is 201 Spear 5 Street, Suite 1100, San Francisco, California. 6 On November 21, 2022, I served the attached 7 • DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION IN LIMINE TO EXCLUDE 8 COMMENTARY, ARGUMENT, REFERENCE, SUGGESTION, EVIDENCE THAT PLAINTIFF CAN “GET ANOTHER RELATIONSHIP.” 9 on the attorney for the Plaintiff listed below, addressed as follows: 10 Sunena Sabharwal, SBN 148237 11 SABHARWAL LAW OFFICES 1816 Fifth Street 12 Berkeley, CA 94710 sunenas@hotmail.com 13 BY FACSIMILE MACHINE (FAX): By personally transmitting a true copy via an electronic 14 facsimile machine between the hours of 9:00 a.m. and 5:00 p.m. 15 x BY MAIL: I am “readily familiar” with the firm’s practice of collection and processing 16 correspondence for mailing with the United States Postal Service. This document is being deposited with the United States Postal Service today in the ordinary course of business. 17 BY FEDERAL EXPRESS: I deposited in a box or other facility regularly maintained by Federal 18 Express, an express service carrier, in an envelope designated by the said express service 19 carrier, with delivery fees paid or provided for. 20 BY PERSONAL SERVICE: By personally delivering a true copy to the addressee listed above at the address listed above. 21 22 x EMAIL: By scanning these documents, producing a .pdf file, and personally transmitting it by email between the hours of 9:00 a.m. and 5:00 p.m. 23 24 I declare under penalty of perjury under the laws of the State of California that the above is true and correct, and that this declaration was executed on November 21, 2022 at Atascadero, California. 25 26 ______________________________________________________ 27 Krista Spinks 4. DEFENDANT’S RESPONSE TO PETITIONER’S MOTION IN LIMINE