`
`SUPERIOR COURT OF CALIFORNIA
`COUNTY OF SAN FRANCISCO
`
`MINUTES
`
`
`
`October 24, 2023
`
`DBI BEVERAGE INC., A
`TENNESSEE CORPORATION, et al
`
`
` PLAINTIFF(S),
`
`
`VS.
`
`
`WSJ, LLC d/b/a SEISMIC BREWING
`COMPANY, et al
`
`
` DEFENDANT(S).
`
`AND ALL RELATED CROSS-ACTIONS.
`
`Judge: SUZANNE RAMOS BOLANOS
`Reporter: Ellen Bellen; CSR #9575;
`Tel: (707) 721-6228;
`Email: ellenbellen9575@gmail.com
`
`Appearing for Plaintiff (s):
`
`NIALL P. McCARTHY, Esq.,
`SARVENAZ “NAZY” J. FAHIMI, Esq.,
`KEVIN J. BOUTIN, Esq.,
`Cotchett, Pitre & Mccarthy, LLP
`840 Malcolm Road
`Burlingame, CA 94010
`Tel: 650-697-6000
`
`for Plaintiffs and Cross-Defendants
`DBI BEVERAGE INC., a TN corp.; DBI
`BEVERAGE NAPA, a CA corp.; DBI BEVERAGE
`SACRAMENTO, a CA corp.; DBI BEVERAGE
`SAN FRANCISCO, a CA corp.; DBI BEVERAGE
`SAN JOAQUIN, a CA corp.; DBI BEVERAGE
`SAN JOSE, a CA corp.,
`and Cross-Defendant DAVID B. INGRAM
`
`
`
`
`Department: 303
`
`Case Number: CGC-20-582694
`
`Nature of Cause: Breach of Contract
`
`JURY TRIAL – Day 2
`Plaintiffs’ Case-in-Chief
`
`
`
`Clerk: L. Bareng
`Bailiff: Not Assigned
`
`Appearing for Defendant (s):
`
`ANDREW LEVINE, Esq.,
`RONALD FISHER, Esq.,
`ELLIS E. HERINGTON, Esq.,
`BraunHagey & Borden LLP
`351 California Street, 10th Floor
`San Francisco, CA 9410
`Tel: 415-599-0210
`
`ANDREW D. HUYNH, Esq. (Pro Hac Vice)
`Braunhagey & Borden LLP
`118 W 22nd Street, 12th
`New York, NY 10011
`
`for Defendant and Cross Complainant
`WSJ, LLC d/b/a SEISMIC BREWING COMPANY
`
`Case Number: CGC-20-582694
`Case Title: DBI BEVERAGE INC., A TENNESSEE CORPORATION ET AL VS. WSJ, LLC
`DBA SEISMIC BREWING COMPANY, ET AL
`
`-1-
`
`Date: October 24, 2023
`
`
`
`

`

`
`
`
`
`
`This cause comes on calendar today having been continued from Monday, October 23, 2023, for
`Plaintiffs’ Case-in-Chief before the Honorable Judge Suzanne Ramos Bolanos. The Court and
`court personnel are present. All counsel are present as indicated in boldface above. DAVID
`INGRAM, DBI Beverage Inc.’s Owner, ROBERT WEST, DBI Beverage Inc.’s General
`Counsel, and CHRISTOPHER JACKSON, President of WSJ d/b/a Seismic Brewing Company,
`are also present. Today’s proceedings are reported.
`
`9:26 a.m. A panel of twelve (12) sworn jurors and three (3) sworn alternates begin to arrive in
`open court.
`
`9:35 a.m. On the record. All are present. The Court provides a brief reminder regarding the
`Stipulated Order Prohibiting Eating Food or Chewing Gum or Other Similar Products in the
`Courtroom.
`
`9:36 a.m. The Plaintiffs call their first witness, ROBERT WEST to the witness stand. The clerk
`administers the witness oath.
`
`9:36 a.m. Plaintiffs’ counsel Ms. Fahimi commences direct examination of the witness,
`ROBERT WEST.
`
`EXH #
`
`DESCRIPTION
`
`
`14
`
`
`16
`
`
`18
`
`20
`
`
`22
`
`Distribution Agreement Between Seismic and DBI
`Sacramento (Yoder Vol. 1 Ex. 1, Jackson Ex. 16, McGinty Ex.
`3), dated March 10, 2017
`Distribution Agreement Between Seismic and DBI San
`Francisco (Yoder Vol. 1 Ex. 5, McGinty Ex. 7), dated March
`15, 2017
`Distribution Agreement Between Seismic and DBI San Jose
`(Yoder Vol. 1 Ex. 3, McGinty Ex. 6), dated March 17, 2017
`Distribution Agreement Between Seismic and DBI San
`Joaquin (Yoder Vol. 1 Ex. 2, McGinty Ex. 4), dated March 10,
`2017
`Distribution Agreement Between Seismic and DBI Napa
`(Yoder Vol. 1 Ex. 4, West Ex. 7, McGinty Ex. 5), dated March
`17, 2017
`
`ID/EVID
`
`ID/EVID
`By Stipulation
`
`ID/EVID
`By Stipulation
`
`ID/EVID
`By Stipulation
`ID/EVID
`By Stipulation
`
`ID/EVID
`By Stipulation
`
`
`10:02 a.m. Off the record. Court and counsel confer at sidebar, outside the presence of the jury
`venire.
`
`10:20 a.m. Back on the record with all present as noted above including the jury venire. Ms.
`Fahimi resumes direct examination of the witness, Mr. West.
`
`
`
`Case Number: CGC-20-582694
`Case Title: DBI BEVERAGE INC., A TENNESSEE CORPORATION ET AL VS. WSJ, LLC
`DBA SEISMIC BREWING COMPANY, ET AL
`
`-2-
`
`Date: October 24, 2023
`
`
`
`

`

`
`
`
`10:22 a.m. Off the record. Court and counsel confer at sidebar, outside the presence of the jury
`venire.
`
`10:41 a.m. Back on the record with all present as noted above including the jury venire. Ms.
`Fahimi resumes direct examination of the witness, Mr. West.
`
`EXH #
`
`
`52
`
`
`53
`
`
`186
`
`DESCRIPTION
`
`Asset Purchase Agreement Between Harbor Distributing
`LLC and DBI (Reyes PMK Hall Ex. 13, Hall Ex. 1), dated June
`12, 2019
`Part One of the Schedules to the Asset Purchase Agreement
`Between Harbor Distributing LLC and DBI (Hall Ex. 2), dated
`June 12, 2019
`Email from Brian Nalley to Robert West Re: Distribution
`Rights Price (DBI0008305 – DBI0008306), dated September
`13, 2019
`
`ID/EVID
`
`ID/EVID
`By Stipulation
`
`ID/EVID
`By Stipulation
`
`
`ID/EVID
`
`
`
`Pursuant to a pending Motion to Seal Certain Potential Trial Exhibits (“Motion to Seal”) by
`Nonparties Reyes Holdings, LLC and Harbor Distributing, LLC, the Court has ordered to clear
`the courtroom from the general public as the above exhibits were published in open court.
`
`10:56 a.m. The jury is admonished and excused for the morning recess. Counsel are ordered to
`remain in the courtroom for a brief conference.
`
`10:57 a.m. Outside the presence of the jury venire, the Court and counsel confer on the dispute
`regarding Mr. West’s testimony during his deposition as discussed during sidebar, off the record.
`
`10:59 a.m. The Court hears from Ms. Fahimi and Mr. Fisher.
`
`11:04 a.m. Pursuant to Instruction, section 9 – D of the Distribution Agreement:
`Mr. Fisher reads excerpts - beginning with page 76, line 18 through page 78, line 4 from the
`deposition transcript of Mr. West.
`
`11:07 a.m. Pursuant to Instruction, section 11 – A of the Distribution Agreement:
`Mr. Fisher reads excerpts - beginning with page 99, line 13 through page 101, line 4 from the
`deposition transcript of Mr. West.
`
`11:09 a.m. Pursuant to Instruction, section 9 – C of the Distribution Agreement:
`Ms. Fahimi reads excerpts - beginning with page 87, lines 5 through line 9 from the deposition
`transcript of Mr. West.
`
`
`
`
`Case Number: CGC-20-582694
`Case Title: DBI BEVERAGE INC., A TENNESSEE CORPORATION ET AL VS. WSJ, LLC
`DBA SEISMIC BREWING COMPANY, ET AL
`
`-3-
`
`Date: October 24, 2023
`
`
`
`

`

`
`
`11:10 a.m. Ms. Fahimi reads excerpts beginning with page 64, lines 18 through page 65 line 18
`from the deposition transcript of Mr. West.
`
`11:11 a.m. Ms. Fahimi reads excerpts from page 97, beginning with line 12 from the deposition
`transcript of Mr. West.
`
`11:12 a.m. The Court hears further from Ms. Fahimi who clarifies the objections on the
`questions Mr. West was instructed not to answer during his deposition.
`
`11:15 a.m. Mr. Fisher responds to Ms. Fahimi’s most recent statements.
`
`11:17 a.m. The Court rules regarding DBI asserting attorney client privilege with respect to
`questions asked by counsel. Please see the official court reporter’s transcript for full details.
`
`11:18 a.m. At the Court’s approval, Ms. Famihi with reference to section 11 – A of the
`Distribution Agreement, makes her statement for the record.
`
`11:22 a.m. The Court notes, based on Its review of the exchange on page 99, line 3 through page
`101, line 4, from the deposition transcript of Mr. West, the witness was not permitted to answer
`any questions regarding section 11 - A.
`
`11:22 a.m. The issue regarding the Asset Purchase Agreement will be discussed during the
`lunch hour recess.
`
`11:23 a.m. At the Court’s instruction, the jurors are permitted back in the courtroom and are
`seated.
`
`11:24 a.m. Back on the record with all present as noted above including the jury venire. Ms.
`Fahimi resumes direct examination of the previously sworn witness, Mr. West.
`
`EXH #
`
`67
`
`
`121
`
`
`140
`
`DESCRIPTION
`
`Letter from David Ingram to Christopher Jackson (Jackson
`Ex. 10, McGinty Ex. 15), dated July 8, 2019
`Asset Purchase Agreement Between DBI and Markstein
`Beverage Co. of Sacramento (Markstein Ex. 3), dated
`September 10, 2019
`Email from David Yoder to Hayden Markstein Re: FW:
`Emailing 3 Attachments (Markstein Ex. 7), dated September
`11, 2019
`
`ID/EVID
`
`ID/EVID
`
`ID/EVID
`
`ID/EVID
`
`
`11:53 a.m. The jury is admonished and excused for the noon recess. Counsel are ordered to
`remain in the courtroom for a brief conference.
`
`
`
`
`Case Number: CGC-20-582694
`Case Title: DBI BEVERAGE INC., A TENNESSEE CORPORATION ET AL VS. WSJ, LLC
`DBA SEISMIC BREWING COMPANY, ET AL
`
`-4-
`
`Date: October 24, 2023
`
`
`
`

`

`
`
`11:55 a.m. Back on the record. Outside the presence of the jury venire, the Court and counsel
`confer on the estimated time remaining for Mr. West’s testimony.
`
`11:55 a.m. The Court hears from Mr. Fisher and Ms. Fahimi regarding the Asset Purchase
`Agreement.
`
`Regarding Supplier approval: Mr. Fisher reads excerpts beginning with page 110, lines 3 through
`page 10 from the deposition transcript of Mr. West.
`
`12:02 p.m. Ms. Fahimi responds.
`
`12:04 p.m. Mr. Fisher reads excerpts beginning with page 115, lines 12 through page 22 from
`the deposition transcript of Mr. West.
`
`12:07 p.m. The Court rules regarding section 6 – C. Please see the official court reporter’s
`transcript for full details.
`
`12:12 p.m. The Court instructs counsel to meet and confer on the Provisions regarding DBI and
`Seismic’s Agreement section 5 – G, and section 11- G.
`
`12:13 p.m. The issue pertaining to Mr. Grant Marcouillier’s deposition will be addressed on the
`pre-scheduled conference on Wednesday, October 25, 2023.
`
`12:14 p.m. Off the record. The Court admonishes counsel regarding prolonged sidebar
`conversations pertaining to the admissibility of deposition testimony.
`
`
`12:15 p.m. Lunch recess taken.
`
`1:32 p.m. Back on the record with all present as noted above including the jury venire. Ms.
`Fahimi resumes direct examination of the previously sworn witness, Mr. West.
`
`EXH #
`
`
`123
`
`
`148
`
`DESCRIPTION
`
`Draft Asset Purchase Agreement Between DBI and Donaghy
`Sales, LLC (DBI0006477 – DBI0006496), dated September
`2019
`Email from David Yoder to Robert West and Mark Ramer
`Re: Asset Purchase Agreement (Donaghy Ex. 8), dated
`September 13, 2019
`
`ID/EVID
`
`
`ID/EVID
`
`
`ID/EVID
`
`
`
`
`
`
`Case Number: CGC-20-582694
`Case Title: DBI BEVERAGE INC., A TENNESSEE CORPORATION ET AL VS. WSJ, LLC
`DBA SEISMIC BREWING COMPANY, ET AL
`
`-5-
`
`Date: October 24, 2023
`
`
`
`

`

`
`
`EXH #
`
`
`142
`
`DESCRIPTION
`
`Letter from Chris Jackson to David Ingram Re: DBI/Seismic
`Brewing (Marcouillier Ex. 29, Jackson Ex. 18, McGinty Ex.
`17), dated September 12, 2019
`
`ID/EVID
`
`
`ID/EVID
`
`
`2:12 p.m. Ms. Fahimi concludes direct examination of the witness, Mr. West.
`
`2:12 p.m. Mr. Fisher commences cross examination of the witness, ROBERT WEST.
`
`EXH #
`
`DESCRIPTION
`
`
`522
`
`524
`
`
`525
`
`
`526
`
`Email from P. Schmitt to T. McGinty re: Seismic Brewing
`and DBI Beverage - DBI0003413, 4/27/2023 - D. Ingram - Ex.
`2, 8/10/2023 - P. Schmitt - Ex. 4, 6/7/2023 - R. West - Ex. 1
`Email from T. McGinty to P. Schmitt re: Thank you! w/
`attachments - DBI0003465, 6/7/2023 - R. West - Ex. 2
`Email from P. Schmitt to T. McGinty re: Fwd: Seismic
`Brewing Contract w/ attachments - SEISMIC00212005,
`6/7/2023 - R. West - Ex. 3
`Email from J. Schvimmer to R. West, et al. re: DBI - Seismic
`w/ attachments - SEISMIC00210534, 6/7/2023 - R. West -
`Ex. 4
`
`ID/EVID
`
`
`ID/EVID
`
`ID/EVID
`
`ID/EVID
`
`ID/EVID
`
`
`
`2:47 p.m. Off the record. Court and counsel confer at sidebar, outside the presence of the jury
`venire.
`
`2:49 p.m. Back on the record with all present as noted above including the jury venire. Mr.
`Fisher resumes cross examination of the witness, Mr. West.
`
`EXH #
`
`
`573
`
`DESCRIPTION
`
`Email from M. Ramer to D. Ingram re: DBI Beverage San
`Joaquin - Crown Imports LLC Distributor's Agreement w/
`Amendments w/ attachments - DBI0034637, 4/27/2023 - D.
`Ingram - Ex. 3
`
`ID/EVID
`
`
`ID/EVID
`
`
`Video clip from the Deposition of Mr. DAVID INGRAM shall be presented to the jury. Parties
`previously stipulated to clip being published to the jury and waive court reporter for the playing
`of the video in open court.
`
`2:53 p.m. Off the record. Mr. Fisher on behalf of the Defense, presents and publishes a video
`clip from the deposition of Mr. DAVID INGRAM to the jury.
`
`
`
`
`Case Number: CGC-20-582694
`Case Title: DBI BEVERAGE INC., A TENNESSEE CORPORATION ET AL VS. WSJ, LLC
`DBA SEISMIC BREWING COMPANY, ET AL
`
`-6-
`
`Date: October 24, 2023
`
`
`
`

`

`
`
`2:56 p.m. Video deposition playback concludes.
`
`2:56 p.m. On the record. Mr. Fisher resumes cross examination of the witness, Mr. West.
`
`3:02 p.m. The jury is admonished and excused for the afternoon recess. Recess taken.
`
`3:17 p.m. Back on the record with all present as noted above including the jury venire. Mr.
`Fisher resumes cross examination of the witness, Mr. West.
`
`3:31 p.m. Previously identified and admitted Plaintiffs’ Exhibit number fifty-two (52) is
`published to the jury.
`Pursuant to a pending Motion to Seal Certain Potential Trial Exhibits (“Motion to Seal”) by
`Nonparties Reyes Holdings, LLC and Harbor Distributing, LLC, the Court has ordered to clear
`the courtroom from the general public as the above exhibit is being published in open court.
`
`EXH #
`
`584
`
`590
`
`DESCRIPTION
`
`Email from G. Nicholas to D. Ingram, et al. re: Project
`Golden Brands - Confidential - DBI0036392, 4/27/2023 - D.
`Ingram - Ex. 4
`Email from B. Nalley to R. West, et al. re: Revised APA w/
`attachments - DBI0007920, 6/7/2023 - R. West - Ex. 11
`
`ID/EVID
`
`ID/EVID with
`redactions
`
`ID
`
`
`3:48 p.m. Off the record. Court and counsel confer at sidebar, outside the presence of the jury
`venire.
`
`3:53 p.m. Back on the record with all present as noted above including the jury venire. Mr.
`Fisher resumes cross examination of the witness, Mr. West.
`
`EXH #
`
`
`587
`
`
`605
`
`
`599
`
`DESCRIPTION
`
`Email from R. West to B. Nalley et al. re: Project Golden
`Brands - APA w/ attachments - HARBOR-00014076 ,
`6/7/2023 - R. West - Ex. 9
`Letter from D. Ingram to C. Jackson re: DBI's request for
`consent to DBI's sale and transfer of distribution rights -
`DBI0005591, 6/8/2023 - C. Jackson - Ex. 10, 8/4/2023 - T.
`McGinty - Ex. 15
`Email from P. Schmitt to D. Ingram re: Project Golden -
`REYES-HARBOR-00003002, 4/27/2023 - D. Ingram
`- Ex. 6
`
`ID/EVID
`
`
`ID
`
`
`ID/EVID
`
`
`ID/EVID
`
`
`4:15 p.m. Mr. Fisher reads excerpts from page 100, lines 1 through 4 from the deposition
`transcript of Mr. Mr. Ingram.
`
`
`
`
`
`Case Number: CGC-20-582694
`Case Title: DBI BEVERAGE INC., A TENNESSEE CORPORATION ET AL VS. WSJ, LLC
`DBA SEISMIC BREWING COMPANY, ET AL
`
`-7-
`
`Date: October 24, 2023
`
`
`
`

`

`
`
`
`
`EXH #
`
`
`623
`
`DESCRIPTION
`
`Email from D. Ingram to T. Reyes, et al. re: Supplier
`Concerns - HARBOR-00004318, 4/27/2023 - D. Ingram - Ex.
`8, 6/7/2023 - R. West - Ex. 13
`
`ID/EVID
`
`
`ID
`
`
`4:29 p.m. Mr. Fisher concludes cross examination of the witness, Mr. West for the day, subject
`to be recall for continued cross examination on Thursday, October 26, 2023.
`
`4:29 p.m. The jury is admonished for the evening recess and is ordered to return on Thursday,
`October 26, 2023, at 9:30 a.m. in Department 303 for Further Plaintiffs’ Case. Counsel are
`ordered to remain for a brief conference.
`
`4:31 p.m. Back on the record. Court hears further argument from counsel outside the presence
`of the jury venire regarding the following Defense Exhibits whereas Plaintiffs’ objections were
`sustained:
`
`EXH #
`
`
`587
`
`
`590
`
`DESCRIPTION
`
`ID/EVID
`
`Email from R. West to B. Nalley et al. re: Project Golden
`Brands - APA w/ attachments - HARBOR-00014076 ,
`6/7/2023 - R. West - Ex. 9
`Email from B. Nalley to R. West, et al. re: Revised APA w/
`attachments - DBI0007920, 6/7/2023 - R. West - Ex. 11
`
`
`ID
`
`ID
`
`
`4:46 p.m. After hearing arguments from counsel, the Court SUSTAINS the objections based on
`relevance, subject to revisit should relevance arise.
`
`4:48 p.m. Court and counsel discuss Mr. West’s testimony.
`
`4:48 p.m. Off the record. Court and counsel confer regarding proposed witness lineup and the
`dispute pertaining to Mr. Grant Marcouillier’s video deposition testimony.
`
`4:54 p.m. The Court opens the floor for any further issues to be addressed. Both the Plaintiffs
`and the Defense respond in the negative.
`
`4:56 p.m. Mr. Fisher updates the Court regarding a stipulation on pending Motion to Seal
`Certain Potential Trial Exhibits (“Motion to Seal”) by Nonparties Reyes Holdings, LLC and
`Harbor Distributing, LLC.
`
`4:57 p.m. The matter is CONTINUED to Wednesday, October 25, 2023, in person in
`Department 303 for the initial Jury Instructions Conference, and to address pending motion/s
`outside the presence of the jury venire.
`
`
`
`Case Number: CGC-20-582694
`Case Title: DBI BEVERAGE INC., A TENNESSEE CORPORATION ET AL VS. WSJ, LLC
`DBA SEISMIC BREWING COMPANY, ET AL
`
`-8-
`
`Date: October 24, 2023
`
`
`
`

`

`
`
`
`4:58 p.m. The court stands adjourned.
`
`
`
`Case Number: CGC-20-582694
`Case Title: DBI BEVERAGE INC., A TENNESSEE CORPORATION ET AL VS. WSJ, LLC
`DBA SEISMIC BREWING COMPANY, ET AL
`
`-9-
`
`
`Date: October 24, 2023
`
`
`
`