TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD OF RECORD HEREIN:
PLEASE TAKE NOTICE that at the contested re-establishment hearing for LPS Conservatorship, set to be heard on [date] in Department 1901 of the above listed court, counsel for relative will move this court for a motion in limine prohibiting patient’s counsel from:
1. Referring to any document or evidence documenting patient’s counsel’s statements that relative plans to disregard the doctor’s treatment recommendations and statements that relative plans to move the conservatee out of state.
2. Presenting any and all written evidence regarding patient’s counsel’s statements that relative plans to disregard the doctor’s treatment recommendations and statements that relative plans to move the conservatee out of state.
This motion in based on the California Code of Civil Procedure section 2030.030 and is further based on the attached memorandum of points and authorities, the attached declaration of relative’s name, all documents contained in the Public Conservator’s statement of facts regarding this matter, and any other evidence which may presented at this re-establishment hearing. Relative (?) has complied with the San Diego Court Local Rule ____ as set forth in the supporting declaration. (?)
This motion is based on Evidence Code section 352 and Model Rules of Prof'l Conduct R. 3.3; 4.1 (2022).
MOTION IN LIMINE NUMBER ONE
Parent’s Counsel (?) moves this court for an order precluding all parties from offering any testimony, statements, or documents relating to the issue of whether proposed conservator, relative’s name, intentions are to move the conservatee out of state and to refuse to follow the treating psychiatrist’s recommendations. This motion is made pursuant to Evidence Code section 352, the trial court’s inherent authority to manage litigation, and is based on the grounds that patient’s counsel, violated of Model Rules of Prof'l Conduct R. 3.3; 4.1 (2022) by knowingly presenting false evidence to the court which would be severely prejudicial and result in undue consumption of the court’s time.
This Motion is based on the attached Memorandum of Points and Authorities, the accompanying Exhibit[s] ____, and any other matters present before this court.
MEMORANDUM OF POINTS AND AUTHORITIES
I. FACTUAL BACKGROUND
Relative submitted on [date] a request to the Public Conservator to investigate their suitability as private conservator also known as “successorship”. Relative was informed on [date] that the public conservator was unwilling to investigate successorship but were not told the reason behind the public conservator’s choice. Relative appealed to the Public Conservator’s superiors, [name] and [name]. The Public Conservator [supervisor name] informed relative via email and phone call on [date] that they would not be willing to investigate the matter further and denied successorship without providing grounds for denial. Relative on [date] submitted more email documentation outlining her plan to provide closer supervision of treatment for the conservatee, plans to work the doctor to find the most suitable medication for the conservatee, and possibility to work with conservatee’s case manager to find suitable placement. After relative’s second email to the public conservator, relative was contacted by conservatee’s counsel on [date] and conservatee’s counsel verbally informed relative that she believed that the relative’s plan to serve as conservator had malicious intent and entailed not following the doctor’s medical recommendations and moving the conservatee out of state where the LPS Conservatorship would be void. Relative responded to conservatee’s counsel and wrote via email on [date] that she was not intending to do such and that she would comply with the doctor’s recommendations and keep the conservatee in the IMD [name] if that was the doctor’s recommendations. Relative clarified that she would raise concerns she had but in no way would she ignore the treatment team’s advice. On [date] conservatee’s counsel responded again and informed relative that she was going to relay to the court and the Public Conservator’s office her concerns about relative plan to defy all orders and recommendations despite prior being informed about relative’s prior email communication clarifying this issue. On [date] the conservatee, name, reached out to relative and told her over the phone that he was very upset as his lawyer reached out to him via phone call and informed him that relative was planning to move him out of state and not follow his doctor’s orders. Relative once more reached out on [date] to conservatee’s counsel and informed her that she was very concerned that conservatee’s counsel planned to knowingly and willingly enter into evidence false statements, and planned to present it to the court. Relative deems that such actions would be fatal to the conservatee’s case. At the time of this filing this Motion no further correspondence has occurred regarding this issue. Relative seeks an order precluding patient’s counsel (?) from reciting or otherwise attempting to get into evidence statements regarding these allegations of anticipated misconduct.
I. THIS COURT MAY EXCLUDE PREJUDICIAL OR IRRELEVANT EVIDENCE IN ADVANCE OF A CONTESTED HEARING BY WAY OF A MOTION IN LIMINE
Courts have “fundamental inherent equity, supervisory, and administrative powers, as well as inherent power to control litigation before them”. (Rutherford v. Owens- Illinois, Inc, (1997) 16 Cal.4th 953, 967. Additionally, Evidence Code section 352 provides the court the power to exclude evidence if its probative value is substantially outweighed by the probability that its admission will (1) necessitate undue consumption of time or (2) create substantial danger of undue prejudice, of course confusing the issues, or of misleading the jury. Additionally, the court may instruct opposing counsel to avoid mentioning or referring to the evidence in question during the contested hearing.
II. COUNSEL MAY NOT INTRODUCE EVIDENCE HE OR SHE KNOWS IS FALSE
Relative asserts that she anticipated that conservatee’s counsel’s will present known false statements regarding relative’s motivation to serve as conservator. Relative asserts this would violate Model Rules of Conduct 3.3 as conservatee’s counsel has already informed conservatee, public conservator, and verbally informed relative personally that she would knowingly present demonstrably false information to the court on the day of the re-establishment hearing. Under Model Rules of Conduct 3.3, (a)(1),(3) entitled “Candor Toward the Tribunal; a lawyer shall not make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; [or] offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
Conservatee’s counsel has been noticed [x number of times] that her assertions about relative’s statements are false and prejudicial. Relative’s emails [Exhibit X-X] demonstrate that the inconsistent statements with what conservatee’s counsel plans to present and what relative has written. Relative asserts that if counsel were to present such “evidence”, conservatee’s counsel will prejudice the case severely as these allegations (?) will hinder the conservatee’s care as the treating doctors, the court, case managers, and nursing staff will not consider any important health and psychiatric information relative wishes to relay for the conservatee’s safety. Relative has known conservatee for [x number of years] and due to her extensive personal knowledge, her advice, advisements, and assistance should not be disregarded based on false statements made by patient’s counsel. Relative believes that these false statements have already influenced the Public Conservator to forgo the directives of Welf & I C section 5350(b)(1) which mandates that a family member who is qualified to serve is preferred and that the public conservator is tasked with investigating suitability and shall deny only for good cause.
Here, should conservatee’s counsel attempt to proffer at the contested hearing, any and all evidence relating to these false statements regarding relative’s motives, the appropriate action for such evidential and ethical (?) violation would be to prevent conservatee’s counsel from introducing them at trial.
Dated: April XX, 2022
Attorney for Relative
DECLARATION OF ATTORNEY FOR RELATIVE
I, Attorney for relative, declare,
1. I am attorney at law duly licensed to practice before all courts in the State of California and am an attorney with firm redacted, attorney of record for relative, parties of record in the subject litigation (?) In the Matter of the Conservatorship of Conservatee. Case No. MH XXXX:
2. I have personal knowledge of the facts set forth in this declaration and, if called as a witness could and would competently testify to such facts under oath.
3. This declaration is made in support of Relative’s Motion in Limine No. 1.
4. On behalf of Relative on [date], I prepared and sent a letter to Patient’s Counsel describing the motion in limine I planned on filing on behalf of my client.
5. For a motion in limine under these special circumstances would there need to be statements and Exhibits of a meet and confer in good faith prior to filing this motion (?)
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed on [date] at location of firm redacted.
Attorney Name, declarant
Juvenile Dependency and