Lennon v. Reality Kats, LLC

Background

The court held a pretrial conference on April 4, 2024, and issued this final pretrial order under Federal Rule of Civil Procedure 16(e). The caption identifies two consolidated cases: Case No. 20-cv-02258-LB, brought by David P. Lennon and others against Reality Kats, LLC and others, and Case No. 20-cv-02271-LB, brought by Reality Kats, LLC against MirSyl, Inc. and others. The court scheduled a jury trial for May 13, 2024, in San Francisco, with a trial length of up to five days. Each side received up to ten hours for openings, closings, witness examinations, and objections.

Motions in Limine

A motion in limine asks the court to decide before trial whether particular evidence may be presented to the jury. The court ruled on seven motions filed by the plaintiffs, granting each one.

1. Probable cause and proper purpose: The court barred evidence that the defendants had probable cause or acted with a proper purpose in two earlier cases. The court concluded that sanctions orders in those earlier proceedings addressed both probable cause and improper purpose, not only whether the cases ended in the plaintiffs’ favor. The court treated any possible double-recovery concern as an offset issue that could be handled through the plaintiffs’ proposed procedure.

2. Alleged misrepresentations in the Novato Development transaction: The court excluded evidence concerning Mr. Lennon’s alleged misrepresentations regarding that transaction. It found that the defendants’ argument—that the evidence could show probable cause for alleging a misrepresentation—was covered by the court’s ruling on the first motion.

3. Authorship of magazine-subscription solicitations: The court excluded evidence concerning Mr. Lennon’s alleged responsibility for writing magazine-subscription sales solicitations. In an earlier Federal Trade Commission enforcement action, the court had held that Mr. Simpson developed and made the decisions about the deceptive mailer. The court distinguished responsibility for authorship from Mr. Lennon’s alleged involvement as an attorney.

4. Transactions involving Jeffrey Hoyal: The court excluded evidence that Mr. Lennon was responsible for or involved in certain transactions between Mr. Simpson and Mr. Hoyal. The court said the defendants had lost the earlier Hoyal case and could not relitigate it. It also found that the evidence was not relevant to the plaintiffs’ damages claims concerning allegedly malicious prosecutions and could confuse the jury. The court noted, however, that the parties’ business relationships, including relationships involving Mr. Hoyal, might be relevant to other disputes. The plaintiffs could object to such evidence during trial in the specific context in which it was offered.

5. Allegedly fake or forged documents: The court excluded testimony that certain emails and other documents were fake or forged. The defendants did not dispute the forgery issue, so the court granted the motion.

6. Allegations in an Internal Revenue Service dispute: The court excluded evidence concerning Mr. Simpson’s allegations against Mr. Lennon and Mr. Hoyal in connection with Mr. Simpson’s Internal Revenue Service dispute. The court applied the same reasoning as for the fourth motion, finding the earlier cases irrelevant and confusing while recognizing that the parties’ relationships might have some relevance. The plaintiffs could raise objections during trial as particular evidence was offered.

7. Undisclosed experts: The court barred the defendants from presenting testimony or other evidence from expert witnesses because they had not disclosed any experts. The court allowed Curt Ankerberg and Mark Orlando to testify about relevant facts within their personal knowledge.

Other Trial Matters

The parties had stipulated to certain facts, and the court ordered that the stipulation be marked as an exhibit and read to the jury. The parties were directed to reduce the number of exhibits and permitted to submit additional exhibits within seven days after the order was filed. They also were directed to confer about jury instructions and the verdict form.

The parties agreed to use the court’s jury questionnaire. The court allowed attorney questioning of prospective jurors, or voir dire, and set procedures for identifying jurors who should be excused for cause. Counsel were required to provide the order of proof for the first trial day by May 9, 2024, and thereafter to provide the order for the next trial day at the end of each trial day. Joint witnesses were to be called only once, during the plaintiffs’ presentation.

Disposition and Classification

The court entered a final pretrial order and granted each of the plaintiffs’ seven motions in limine. It did not enter judgment on the underlying claims, decide the merits of the malicious-prosecution allegations, or otherwise resolve the parties’ claims and defenses. The order is therefore a procedural order concerning trial management and the admissibility of evidence.