`
`Tyler M. Paetkau (SBN 146305)
`Tyler.Paetkau@huschblackwell.com
`Natalie Garcia Lashinsky (SBN 278214)
`Natalie.Lashinsky@huschblackwell.com
`Husch Blackwell LLP
`1999 Harrison St., Suite 700
`Oakland, CA 94612
`Telephone:
`510.768.0650
`Facsimile:
`510.768.0651
`
`Attorneys for Defendant and Cross-Complainant
`SPARX 7, LLC and Defendant KEVIN LEE
`
`ELECTRONICALLY
`F I L E D
`
`Superior Court of California,
`County of San Francisco
`05/01/2023
`Clerk of the Court
`BY: YOLANDA TABO
`Deputy Clerk
`
`
`SUPERIOR COURT OF THE STATE OF CALIFORNIA
`COUNTY OF SAN FRANCISCO
`
`
`
` Case No.: CGC-19-575729
`
`MIL NO. 1
`
`CROSS-COMPLAINANT SPARX 7
`LLC AND DEFENDANT KEVIN LEE
`MOTION IN LIMINE NO. 1 TO
`EXCLUDE REFERENCE, AND/OR
`EVIDENCE OF THE UNRELATED
`SVDP LAWSUIT
`Date: May 8, 2023
`Time:
`9:30 a.m.
`Dept.:
`206
`Judge: Hon. Anne-Christine Massullo
`
`
`
`
`
`
`SAN PABLO SR2, LLC, a California Limited
`Liability Company; SAN PABLO SR3, LLC, a
`California Limited Liability Company,
`
`
`Plaintiffs,
`
`vs.
`
`
`SPARX 7, LLC; a California Limited Liability
`Company; KEVIN LEE, an individual and
`DOES 1 through 20, inclusive,
`
`
`Defendants.
`
`
`Cross-Complainant,
`
`
`SPARX 7, LLC, a California Limited Liability
`Company,
`
`vs.
`
`SAN PABLO SR2, LLC; SAN PABLO SR3, LLC;
`SUNRIDGE II, LLC; SUNRIDGE III, LLC;
`SUNRIDGE VI, LLC; DIXON NG; DEANNA
`KUNG; DONALD KUNG; PORTFOLIO
`LENDING; GREEN WORLD DEVELOPMENT,
`LLC AND ROES 1 through 50, inclusive,
`
`Cross-Defendants.
`
`
`
`
`1
`CROSS-COMPLAINANT SPARX 7 LLC AND DEFENDANT KEVIN LEE MOTION IN LIMINE NO. 1 TO EXCLUDE REFERENCE,
`AND/OR EVIDENCE OF THE UNRELATED SVDP LAWSUIT
`
`HB: 4891-8112-8031.1
`
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`1999 HARRISON ST., SUITE 700, OAKLAND, CA 94612
`
`HUSCH BLACKWELL LLP
`
`(510) 768-0650
`
`
`

`

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`TO ALL PARTIES HEREIN AND TO THEIR ATTORNEYS OF RECORD:
`Defendant and Cross-Complainant SPARX 7, LLC and Defendant KEVIN LEE
`(collectively “Sparx 7”) hereby move this Court, in limine, for an order prohibiting Plaintiffs and
`Cross-Defendants SAN PABLO SR2, LLC and SAN PABLO SR3, LLC and Cross-Defendants
`SUNRIDGE II, LLC; SUNRIDGE III, LLC; SUNRIDGE VI, LLC; DIXON NG; DEANNA
`KUNG; DONALD KUNG; PORTFOLIO LENDING; GREEN WORLD DEVELOPMENT,
`LLC (collectively, “San Pablo”), through argument, testimony, trial exhibits, witnesses, or any
`other means, from directly or indirectly introducing at trial any reference or evidence pertaining
`to Silicon Valley Development Partners LLC v. Sparx 7 LLC, Superior Court of California,
`County of Alameda, Case No. RG18916854 (the “SVDP Lawsuit”). Such reference has no
`relevance to this separate lawsuit involving different parties and facts, and would confuse the
`jury and waste its time and create a substantial danger of undue prejudice to Sparx 7,
`outweighing any possible probative value.
`INTRODUCTION
`I.
`Plaintiffs and Cross-Defendants SAN PABLO SR2, LLC and SAN PABLO SR3, LLC
`(collectively, “San Pablo Plaintiffs”) claim that Sparx 7 defrauded them and breached an alleged
`joint venture contract related to a failed real estate development project located at 3020 San
`Pablo Avenue, Berkeley, California (the “Property”). Sparx 7 filed a Cross-Complaint against
`San Pablo alleging fraud and breach of contract by San Pablo based on San Pablo’s material
`misrepresentations and omissions related to the development of the Property. Among other
`things, San Pablo and the real estate broker, Cross-Defendant DONALD KUNG, enticed
`Defendant KEVIN LEE to enter into a proposed joint venture agreement involving the
`development of the Property, imposed extra-contractual requirements on Sparx 7 relating to the
`project, and delayed development of the Property while receiving $400,000 in rent from Sparx 7.
`Importantly, based on San Pablo’s fraud, San Pablo collected $400,000 in rent from Sparx 7 for
`an empty lot, when the market value of the empty lot “rented” by Sparx 7 from San Pablo was
`substantially less.
`
`2
`CROSS-COMPLAINANT SPARX 7 LLC AND DEFENDANT KEVIN LEE MOTION IN LIMINE NO. 1 TO EXCLUDE REFERENCE,
`AND/OR EVIDENCE OF THE UNRELATED SVDP LAWSUIT
`
`HB: 4891-8112-8031.1
`
`1999 HARRISON ST., SUITE 700, OAKLAND, CA 94612
`
`HUSCH BLACKWELL LLP
`
`(510) 768-0650
`
`

`

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`Defendant and Cross-Complainant SPARX 7, LLC (“Sparx 7) is also involved in a
`separate, pending lawsuit involving Silicon Valley Development Partners LLC (“SVDP”), a real
`estate development and investment company. This crux of this case is another breach of contract
`case, but SVDP is unrelated to San Pablo and the contract at issue in the SVDP Lawsuit is
`irrelevant to the issues in this separate lawsuit. Judging by San Pablo’s various amended
`Complaints, in which they feature the SVDP Lawsuit in the first charging allegation, Sparx 7
`anticipates that San Pablo wants to conduct a wasteful and prejudicial mini-trial of the unproven
`allegations in the SVDP Lawsuit in this different action involving different parties and
`circumstances.
`Therefore, Sparx 7 respectfully moves the Court for an order excluding any and all
`evidence, references to evidence, testimony or argument relating to the SVDP Lawsuit. Sparx 7
`bases this Motion on the ground that the evidence is irrelevant to the issues in this case in that the
`mere existence of this other lawsuit has no relevance to the specific issues presented in this case.
`In addition to confusing and misleading the jury and wasting their time, introduction of such
`evidence will create a substantial danger of undue prejudice Sparx 7, outweighing any possible
`probative value.
`
`II.
`
`ARGUMENT
`
`A.
`
`The SVDP Lawsuit Is Irrelevant and the Court Should Exclude All Referenes to It
`at Trial.
`California Evidence Code section 350 states that “(n)o evidence is admissible except
`relevant evidence.” Relevant evidence is defined by California Evidence Code Section 210 as
`“having any tendency in reason to prove or disprove any disputed fact that is of consequence to
`the determination of the action.” (See People v. Kelly (1992) 1 Cal.4th 495, 523 (only relevant
`evidence is admissible); People v. Haston (1968) 69 Cal.2d 233, 245 (in every case the
`possibility of severing relevant from irrelevant portions of evidence should be considered to
`protect against undue prejudice).)
`In Kelly v. New West Federal Savings, the plaintiff previously sued the defendant for a
`slip and fall incident that occurred on the same premises.
` In that case, through
`
`3
`CROSS-COMPLAINANT SPARX 7 LLC AND DEFENDANT KEVIN LEE MOTION IN LIMINE NO. 1 TO EXCLUDE REFERENCE,
`AND/OR EVIDENCE OF THE UNRELATED SVDP LAWSUIT
`
`HB: 4891-8112-8031.1
`
`1999 HARRISON ST., SUITE 700, OAKLAND, CA 94612
`
`HUSCH BLACKWELL LLP
`
`(510) 768-0650
`
`

`

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`a motion in limine, one party wanted to preclude evidence relating the prior lawsuit. The court
`stated, “Absent a showing of relevance, such evidence would have been collateral to the issues
`raised in this litigation.” (Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659.)
`Sparx 7’s prior or current ongoing litigation is not relevant because it the unproven allegations
`by different parties involving different circumstances has no “tendency in reason to prove or
`disprove any disputed fact that is of consequence to the determination of the action.” (Evid.
`Code § 210.)
`This action has nothing to do with the pending SVDP Lawsuit, and the parties are not the
`same. While they are both related to real estate development projects, the SVDP Lawsuit is
`focused on a dispute related to a promissory note, whereas this case involves a series of alleged
`contracts, including a “Binding Term Sheet,” a “Ground Lease,” an “Addendum of Ground
`Lease,” and numerous other alleged “Joint Venture” and “Work Letter” contracts. Admission of
`evidence and/or argument related to the SVDP Lawsuit is irrelevant to the issues in dispute in
`this separate action, and would serve only to confuse and distract the jury, waste their time on a
`separate trial-within-a-trial, and unfairly prejudice Sparx 7.
`
`B.
`
`The SVDP Lawsuit Lacks Any Probative Value and Its Admission Would
`Necessitate Undue Consumption of Time, Create a Substantial Danger of Undue
`Prejudice to Sparx 7, Confuse the Issues, and Misleading The Jury.
`California Evidence Code section 352 states as follows: “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 of misleading the jury.” (See People v. Cardenas
`(1982) 31 Cal.3d 897, 904 (if the prejudicial effect of admitting evidence outweighs the
`probative value, the trial court should exclude the evidence).)
`San Pablo’s attempted injection of the separate SVDP Lawsuit will create substantial
`danger of undue prejudice to Sparx 7. If the jury hears that Sparx 7 has other litigation involving
`a different real estate project, it will assume that “where’s the smoke there’s fire,” and will be
`negatively affected and prejudiced against Sparx 7 in this trial involving different parties, claims,
`
`4
`CROSS-COMPLAINANT SPARX 7 LLC AND DEFENDANT KEVIN LEE MOTION IN LIMINE NO. 1 TO EXCLUDE REFERENCE,
`AND/OR EVIDENCE OF THE UNRELATED SVDP LAWSUIT
`
`HB: 4891-8112-8031.1
`
`1999 HARRISON ST., SUITE 700, OAKLAND, CA 94612
`
`HUSCH BLACKWELL LLP
`
`(510) 768-0650
`
`

`

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`facts, defenses and issues. The jury needs to focus on this trial, and not be confused, distracted
`and misled by the unproven allegations in the SVDP Lawsuit – although concealed by San Pablo,
`Sparx 7 filed a Cross-Complaint against SVDP in the SVDP Lawsuit.
`California Evidence Code Section 352 authorizes the Court to exclude evidence where, as
`here, “its probative value is substantially outweighed by the probability that its admission will
`“confus[e]” or “mislead[ ] the jury.” San Pablo’s attempted injection of the SVDP Lawsuit into
`this separate trial involving different parties and facts will create a substantial danger of
`confusing the issues and/or misleading the jury because the SVDP Lawsuit and this action
`involve disputed real estate transactions in the San Francisco Bay Area. The jury should focus
`on the this trial only to prevent confusion or being misled. If the Court allows San Pablo to
`introduce evidence regarding the unproven allegations in the SVDP Lawsuit, then Sparx 7 will
`need to respond, resulting in a trial within a trial. Accordingly, the Court should enter an order
`in limine prohibiting and excluding from the jury any reference or evidence to the SVDP
`Lawsuit.
`
`C.
`
`The SVDP Lawsuit May Lead To Emotional Bias Against Sparx 7, and Therefore the
`Court Should Exclude this Irrelevant and Unduly Prejudicial Evidence.
`There is a substantial danger that the SVDP Lawsuit evidence will unfairly inflame the
`passions on emotions of the jurors. California Evidence Code Section 352 and leading cases that
`have approved of the exclusion of evidence intended principally to arouse the passions of the
`jury or inflame juror emotions. (See People v. Carter (1957) 48 Cal.2d 737, 751; People v. Bums
`(1952 109 Cal.App.2d 524, 541-42; People v. Killebrew (2002) 103 Cal.App.4th 644, 659 (court
`abused its discretion by allowing testimony of expert that “inflamed the jury's passion and had
`little or no probative value”).)
`If the jury learns that Sparx 7 is involved in ongoing litigation regarding real estate
`transactions like this case, the jury may perceive Sparx 7 as incompetent or deficient as to real
`estate development projects, breaching contracts on a regular basis, mishandling of real estate
`transactions, and form other negative perceptions against Sparx 7. Sparx 7’s prior or current
`unproven allegations and claims, including the SVDP Lawsuit, may lead to emotional bias
`5
`CROSS-COMPLAINANT SPARX 7 LLC AND DEFENDANT KEVIN LEE MOTION IN LIMINE NO. 1 TO EXCLUDE REFERENCE,
`AND/OR EVIDENCE OF THE UNRELATED SVDP LAWSUIT
`
`HB: 4891-8112-8031.1
`
`1999 HARRISON ST., SUITE 700, OAKLAND, CA 94612
`
`HUSCH BLACKWELL LLP
`
`(510) 768-0650
`
`

`

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`1999 HARRISON ST., SUITE 700, OAKLAND, CA 94612
`
`HUSCH BLACKWELL LLP
`
`(510) 768-0650
`
`against Sparx 7 in this action, and the Court should exclude all references to, evidence
`concerning or argument regarding the separate SVDP Lawsuit.
`III. CONCLUSION
`Sparx 7 respectfully requests that the Court grant its Motion In Limine No. 1 to exclude
`any reference to the SVDP Lawsuit, and specifically exclude all references, and/or evidence of
`the SVDP Lawsuit at the trial of this separate action. Failure to do so will result in substantial
`consumption of court time on a mini-trial within the trial, will confuse and mislead the jury, and
`will cause undue prejudice to Sparx 7 on irrelevant allegations in a separate pending lawsuit
`involving entirely different parties, facts, claims, cross-claims, defenses and evidence.
`
`DATED: May 1, 2023
`
`By:
`
`
`
`
`
`
`/s/Tyler M. Paetkau
`Tyler M. Paetkau
`Natalie Garcia Lashinsky
`
`HUSCH BLACKWELL LLP
`Attorneys for Defendant and Cross-Complainant
`SPARX 7, LLC and Defendant KEVIN LEE
`
`6
`CROSS-COMPLAINANT SPARX 7 LLC AND DEFENDANT KEVIN LEE MOTION IN LIMINE NO. 1 TO EXCLUDE REFERENCE,
`AND/OR EVIDENCE OF THE UNRELATED SVDP LAWSUIT
`
`HB: 4891-8112-8031.1
`
`

`

`
`
`PROOF OF SERVICE
`
`San Pablo SR2, LLC et al v Sparx 7, LLC et al
`San Francisco Superior Court Case No. CGC-19-575729
`
`I am a citizen of the United States and employed in Alameda County, California. I am
`over the age of eighteen years and not a party to the within-entitled action. My business address is
`355 S. Grand Ave., Suite 2850, Los Angeles, CA 90071. On May 1, 2023, I served a copy of the
`within document(s):
`
`CROSS-COMPLAINANT SPARX 7 LLC AND DEFENDANT KEVIN LEE MOTION IN
`LIMINE NO. 1 TO EXCLUDE REFERENCE, AND/OR EVIDENCE OF THE
`UNRELATED SVDP LAWSUIT
`
`as follows:
`☐ by sealing the document(s) listed above in an envelope and causing them to be
`personally delivered via courier to the person(s) at the address(es) set forth below.
`☐ by electronically serving the document(s) listed above via File&ServeXpress on the
`recipient(s) designated on the Transaction Receipt located on the File&ServeXpress
`website.
`☐ by sealing the document(s) listed above in a FEDEX envelope/box and placing it for
`collection, which would, in the ordinary course of business, be deposited with FEDEX
`for delivery to the person(s) at the address(es) set forth below.
`☒ by emailing a true and correct copy of the document(s) listed to the person(s) at the
`email address(es) set forth below.
`
`Charles S. Bronitsky, Esq.
`Law Office of Charles S. Bronitsky
`756 Niantic Drive
`Foster City, CA 94404
`Tel: (650) 918-5760
`Fax: (650) 649-231
`Email: charlie@charlieblaw.com
`
`
`Attorney for Plaintiff
`San Pablo SR2, LLC and
`San Palbo SR3, LLC
`
`
`I declare under penalty of perjury under the laws of the State of California that the
`foregoing is true and correct. Executed on May 1, 2023, at Brea, California.
`
`
`
`
`/s/ Eleni Medenas
`ELENI MEDENAS
`
`
`
`
`HB: 4891-8112-8031.1
`
`
`PROOF OF SERVICE
`
`
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`300 SOUTH GRAND, SUITE 1500, LOS ANGELES, CA 90071
`
`HUSCH BLACKWELL LLP
`
`(213) 337-6550
`
`