SUPERIOR COURT OF CALIFORNIA
`COUNTY OF SAN FRANCISCO
`
`MINUTES
`
`
`
`November 3, 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: Deborah Fuqua; CSR #12948;
`Email: dfuqua.csr@gmail.com
`
`Appearing for Plaintiff (s):
`
`
`Department: 303
`
`Case Number: CGC-20-582694
`
`Nature of Cause: Breach of Contract
`
`JURY TRIAL – Day 8
`Further Plaintiffs’ Case
`
`
`
`Clerk: L. Bareng
`Bailiff: Not Assigned
`
`Appearing for Defendant (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
`
`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: November 3, 2023
`
`
`
`

`

`
`This cause comes on calendar today having been continued from Thursday, November 2, 2023,
`for further Plaintiffs’ Case before the Honorable Judge Suzanne Ramos Bolanos. The Court and
`court personnel are present. All counsel are present as indicated in boldface above. 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.
`
`9:23 a.m. A panel of twelve (12) sworn jurors and three (3) sworn alternates begin to arrive in
`open court.
`
`9:32 a.m. On the record. All are present as noted above including the jury venire.
`
`9:32 a.m. At the Court’s instruction, Mr. Levine on behalf of the Defense, recalls and resumes
`cross examination of the out of order and previously sworn witness, THOMAS McGINTY.
`
`DESCRIPTION
`
`ID/EVID
`
`EXH #
`
`700
`
`701
`
`702
`
`709
`
`Email from C. Jackson to N. Hall, et al. re: Consent -
`SEISMIC00103276, 7/20/2023 - N. Hall - Ex. 11,
`8/4/2023 - T. McGinty - Ex. 33
`Email from T. McGinty to R. Donaghy re: Seismic
`Distribution Agreement w/ attachments -
`SEISMIC00102735, 8/9/2023 - R. Donaghy - Ex. 7
`Email from T. McGinty to H. Markstein, et al. re: Seismic
`Distribution Agreement w/ attachments –
`SEISMIC00102756, 5/16/2023 – H. Markstein – Ex. 1
`Email from T. McGinty to C. Jackson re: Seismic Stone Draft
`Distribution Agreement – SEISMIC00050742
`
`Previously
`ID/EVID
`on 10/26/23
`Previously
`ID/EVID
`on 10/30/23
`Previously
`ID/EVID
`on 10/30/23
`Previously
`ID/EVID
`on 10/30/23
`ID/EVID
`
`732
`
`Text Messages between T. McGinty and G. Marcouillier -
`MCGINTY00000069
`9:49 a.m. Mr. Levine concludes cross examination of the witness, Mr. McGinty.
`
`9:49 a.m. Ms. Fahimi commences re-direct examination of the witness, Mr. McGinty.
`
`9:58 a.m. Ms. Fahimi reads excerpts, page 131, lines 1 through 17 from the deposition
`transcript of Mr. Thomas McGinty.
`
`9:59 a.m. Mr. Levine commences re-cross examination of the witness, Mr. McGinty.
`
`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
`
`Previously
`ID/EVID
`on 10/24/23
`
`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: November 3, 2023
`
`
`
`

`

`
`10:02 a.m. No further questions, the witness is thanked and excused.
`
`10:03 a.m. Ms. Fahimi on behalf of the Plaintiffs, recalls and resumes direct examination of the
`previously sworn witness, DAVID YODER.
`
`EXH #
`
`193
`
`253
`
`183
`
`DESCRIPTION
`
`Seismic Brewing – Open AR/AP Balance Invoices
`(DBI0003064 – DBI0003091; DBI0042888 – DBI0042932;
`SEISMIC00003109)
`Credit Memos and Invoices
`DBI 0003092 – DBI 0003114
`DBI Beverage – Seismic Brewing Valuation [Native]
`(Markstein Ex. 8), dated September 6, 2019
`
`ID/EVID
`
`ID/EVID
`
`ID/EVID
`
`ID
`
`
`10:15 a.m. Off the record. Court and counsel confer at sidebar, outside the presence of the jury
`venire regarding Plaintiffs’ Exhibit no. 183.
`
`10:21 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. Yoder.
`
`EXH #
`
`183
`
`14
`
`
`187
`188
`
`254
`
`EXH #
`
`
`54
`
`DESCRIPTION
`
`DBI Beverage – Seismic Brewing Valuation [Native]
`(Markstein Ex. 8), dated September 6, 2019
`Distribution Agreement Between Seismic and DBI
`Sacramento (Yoder Vol. 1 Ex. 1, Jackson Ex. 16, McGinty Ex.
`3), dated March 10, 2017
`
`DBI Beverage – Trailing Twelve Month Margins with
`Multiples [Native] (DBI0042933), dated February 3, 2020
`Seismic Sales by Brand and Region [Native] (DBI0002979),
`dated April 14, 2020
`DBI Beverage
`Seismic Brewing – Freight in Estimate
`DESCRIPTION
`
`ID/EVID
`
`ID/EVID
`Page 3 ONLY
`Previously
`ID/EVID
`on 10/24/23
`By Stipulation
`
`ID/EVID
`ID/EVID
`
`ID/EVID
`
`ID/EVID
`
`Part Two of the Schedules to the Asset Purchase Agreement
`Between Harbor Distributing LLC and DBI (HARBOR-
`00040306 – HARBOR-00040372), dated June 12, 2019
`
`
`ID/EVID
`By Stipulation
`
`
`10:43 a.m. Ms. Fahimi concludes direct examination of the witness, Mr. Yoder.
`
`10:43 a.m. Mr. Fisher commences cross examination of the witness, DAVID YODER.
`
`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: November 3, 2023
`
`
`
`

`

`
`
`EXH #
`
`632
`
`DESCRIPTION
`
`Email from T. McGinty to T. Straker, et al re: Coastal
`Delivery - SEISMIC00052489, 9/6/2023 - T. Straker Ex. 13
`
`ID/EVID
`
`Previously
`ID/EVID
`on 11/2/23
`
`
`11:02 a.m. Mr. Fisher reads excerpts from page 15 of the deposition transcript of Mr. David
`Yoder.
`
`Video clip from the PMQ Deposition of Mr. David Yoder 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.
`
`11:04 a.m. Off the record. Mr. Fisher on behalf of the Defense, presents and publishes a video
`clip from the PMQ deposition of Mr. David Yoder.
`
`11:05 a.m. Video deposition playback concludes.
`
`11:05 a.m. On the record. Fisher resumes cross examination of the witness, Mr. Yoder.
`
`11:06 a.m. Off the record. Mr. Fisher on behalf of the Defense, replays a video clip from the
`PMQ deposition of Mr. David Yoder.
`
`11:06 a.m. Video deposition playback concludes.
`
`11:06 a.m. On the record. Fisher resumes cross examination of the witness, Mr. Yoder.
`
`11:10 a.m. The jury is admonished and excused for the morning recess. Recess taken.
`
`11:27 a.m. Back on the record with all present as noted above including the jury venire. Mr.
`Fisher resumes cross examination of the witness, Mr. Yoder.
`
`11:33 a.m. Mr. Fisher reads excerpts from page 218 beginning with line 23 of the PMQ
`deposition transcript of Mr. David Yoder.
`
`EXH #
`
`141
`
`DESCRIPTION
`
`Email from Mike Longaker to David Yoder Re: APA &
`Related Documents (Markstein Ex. 6), dated September 11,
`2019
`
`ID/EVID
`
`Previously
`ID/EVID
`on 11/2/23
`
`
`11:40 a.m. Mr. Fisher concludes cross examination of the witness, Mr. Yoder. Mr. Fisher states,
`he reserves his right to recall witness if necessary.
`
`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: November 3, 2023
`
`
`
`

`

`
`11:40 a.m. Ms. Fahimi commences re-direct examination of the witness, Mr. Yoder.
`
`11:42 a.m. No further questions, the witness is thanked and excused.
`
`11:43 a.m. At the Court’s instruction, the Plaintiffs call their next witness, GREG REGAN,
`CPA/CFF, MBA to the witness stand. The clerk administers the witness oath.
`
`11:43 a.m. Plaintiffs’ counsel Mr. McCarthy commences direct examination of the witness,
`GREG REGAN, CPA/CFF, MBA.
`
`11:47 a.m. The Court deems GREG REGAN, CPA/CFF, MBA, qualified to testify as a CPA
`expert in calculating damages.
`
`11:58a.m. The jury is admonished and excused for the noon recess. Counsel are ordered to
`remain for a brief conference.
`
`11:59 a.m. Back on the record. Court hears from counsel outside the presence of the jury venire
`regarding witness availability. Defense counsel will have an opportunity later to put their
`nonsuit motion on the record.
`
`12:00 p.m. Court and counsel confer on witnesses being present in open court.
`
`12:02 p.m. After a brief argument, the Court will allow Ms. Jennifer Benjamin as a rebuttal
`witness to Mr. Regan to observe. All others should be excluded.
`
`12:04 p.m. After hearing from counsel, the Court rules that Defense’ expert witnesses will
`testify next week. Court and counsel will resume Jury Instructions conference after the jurors are
`excused this afternoon.
`
`
`12:05 p.m. Court and counsel conference concludes. Lunch recess taken.
`
`1:25 p.m. Off the record. Outside the presence of the jury venire, the Court and counsel discuss
`a tentative schedule for next week:
`
`Monday, November 6, 2023 – Jury Instructions and Special Verdict Form Conference;
`Tuesday, November 7, 2023 – Continued Presentation of Evidence and Closing Arguments;
`Wednesday, November 8, 2023 – Jury Deliberations;
`Thursday, November 9, 2023 – Jury Deliberations.
`
`1:28 p.m. Court and counsel conference concludes. At the Court’s instruction, the jurors are
`allowed back in the courtroom.
`
`
`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: November 3, 2023
`
`
`
`

`

`1:31 p.m. Back on the record with all present as noted above including the jury venire. Mr.
`McCarthy resumes direct examination of the witness, Mr. Regan.
`
`EXH #
`
`16
`
`194
`
`DESCRIPTION
`
`Distribution Agreement Between Seismic and DBI San
`Francisco (Yoder Vol. 1 Ex. 5, McGinty Ex. 7), dated March
`15, 2017
`
`Findings of Greg J. Regan (REGAN_GREG000002 –
`REGAN_GREG000006)
`
`ID/EVID
`
`Previously
`ID/EVID
`on 10/24/23
`By Stipulation
`Identified for
`Demonstrative
`Purposes ONLY
`
`
`1:59 p.m. Mr. McCarthy concludes direct examination of the witness, Mr. Regan.
`
`2:00 p.m. Mr. Levine commences cross examination of the witness, GREG REGAN, CPA/CFF,
`MBA.
`
`EXH #
`
`505
`
`506
`
`508
`
`726
`
`DESCRIPTION
`
`Understanding Pricing in the U.S. - REGAN_GREG000147,
`9/12/2023 - G. Regan - Ex. 9
`Beverage Trade Network - What do Wine, Spirits and Beer
`Distributors Really Want? - REGAN_GREG000159,
`9/12/2023 - G. Regan - Ex. 16
`Mercer Capital - Valuing Beer, Wine, and Alcohol
`Distributors - REGAN_GREG000117, 9/12/2023 - G. Regan -
`Ex. 18
`DBI Beverage - Seismic Brewing - Freight In Estimate -
`REGAN_GREG000166, 9/12/2023 - G. Regan - Ex. 21
`
`ID/EVID
`
`ID/EVID
`
`ID/EVID
`
`ID/EVID
`
`ID/EVID with
`redactions
`
`
`2:37 p.m. Off the record. Court and counsel confer at sidebar, outside the presence of the jury
`venire.
`2:39 p.m. Back on the record with all present as noted above including the jury venire.
`
`2:39 p.m. Mr. Levine concludes cross examination of the witness, Mr. Regan.
`
`2:39 p.m. Mr. McCarthy commences re-direct examination of the witness, Mr. Regan.
`
`2:40 p.m. No further questions, the witness is thanked and excused.
`
`2:41 p.m. The jury is admonished and excused for the afternoon recess. Recess taken.
`
`3:01 p.m. Back on the record with all present as noted above including 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
`
`-6-
`
`
`Date: November 3, 2023
`
`
`
`

`

`3:01 p.m. Plaintiffs REST.
`
`3:02 p.m. The Defense call their next witness, JOSHUA WEISS to the witness stand. The clerk
`administers the witness oath.
`
`3:02 p.m. Defense’ counsel Mr. Levine commences direct examination of the witness, JOSHUA
`WEISS.
`
`3:07 p.m. Off the record. Court and counsel confer at sidebar, outside the presence of the jury
`venire.
`
`3:22 p.m. Back on the record with all present as noted above including the jury venire. Mr.
`Levine resumes direct examination of the witness, Mr. Weiss.
`
`
`EXH #
`
`709
`
`DESCRIPTION
`
`Email from T. McGinty to C. Jackson re: Seismic Stone Draft
`Distribution Agreement – SEISMIC00050742
`
`ID/EVID
`
`Previously
`ID/EVID
`on 10/30/23
`
`
`3:35 p.m. Mr. Levine concludes direct examination of the witness, Mr. Weiss.
`
`3:35 p.m. Mr. Boutin commences cross examination of the witness, JOSHUA WEISS.
`
`EXH #
`
`95
`
`DESCRIPTION
`
`Email from Tom McGinty to Josh Weiss and Chris Jackson
`Re: Seismic Brewing Draft Distribution Agreement
`(Marcouillier Ex. 41; Jackson Ex. 14, Weiss Ex. 5), dated
`August 22, 2019
`
`ID/EVID
`
`Previously
`ID/EVID
`on 10/30/23
`
`
`3:39 p.m. Mr. Boutin concludes cross examination of the witness, Mr. Weiss.
`3:39 p.m. Off the record. Court and counsel confer at sidebar, outside the presence of the jury
`venire.
`
`3:44 p.m. Back on the record with all present as noted above including the jury venire. Mr.
`Levine commences re-direct examination of the witness, Mr. Weiss.
`
`3:46 p.m. No further questions, the witness is thanked and excused.
`
`3:46 p.m. The Court addresses the jurors regarding a revised trial schedule:
`•
`Monday, November 6, 2023 – DARK for Jury Trial, Court and counsel will
`conduct a Jury Instructions 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
`
`-7-
`
`
`Date: November 3, 2023
`
`
`
`

`

`•
`
`•
`•
`
`Tuesday, November 7, 2023 – Continued Presentation of Evidence and Closing
`Arguments, and Jury Instructions;
`Wednesday, November 8, 2023 – Jury Deliberations;
`Thursday, November 9, 2023 – Further Jury Deliberations, possible end date.
`
`
`3:48 a.m. The jury is admonished for the evening recess and is ordered to return on Tuesday,
`November 7, 2023, at 9:30 a.m. in Department 303 for Defense’ Case. Counsel are ordered to
`remain for a brief conference.
`
`3:49 p.m. Back on the record. Outside the presence of the jury venire. At the Court’s
`instruction, Mr. Levine memorializes for the record the sidebar discussion pertaining to Mr.
`Weiss’s testimony.
`
`3:51 p.m. Mr. McCarthy responds.
`
`3:52 p.m. Mr. Levine presents further argument.
`
`3:52 p.m. The Court hears from counsel regarding expert testimonies during closing arguments.
`
`3:54 p.m. Off the record. Court and counsel discuss the status of jury instructions, specifically
`CACI series 300.
`
`3:58 p.m. On the record. Court and counsel confer on Plaintiffs’ Supplemental Jury
`Instructions.
`
`4:08 p.m. Court and counsel confer on Defendant’s Supplemental Jury Instructions.
`
`4:23 p.m. Court and counsel will resume Jury Instructions discussion on Monday, November 6,
`2023.
`
`4:24 p.m. Counsel to meet and confer on Defense’s intended Nonsuit Motion, as well as the
`Proposed Verdict form.
`
`
`4:28 p.m. The Court opens the floor for any further issues to be addressed. Both the Plaintiffs
`and the Defense respond in the negative.
`
`4:28 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
`
`-8-
`
`
`Date: November 3, 2023
`
`
`
`