Professional Documents
Culture Documents
Brophy v. Almanzar
Brophy v. Almanzar
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NOTICE OF MOTION AND MEMORANDUM ISO PLAINTIFF’S MOTION FOR NEW TRIAL PURSUANT TO
FRCP RULE 59
Case 8:17-cv-01885-CJC-JPR Document 261 Filed 01/25/23 Page 2 of 30 Page ID #:8917
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NOTICE OF MOTION AND MEMORANDUM ISO PLAINTIFF’S MOTION FOR NEW TRIAL PURSUANT TO
FRCP RULE 59
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NOTICE OF MOTION AND MEMORANDUM ISO PLAINTIFF’S MOTION FOR NEW TRIAL PURSUANT TO
FRCP RULE 59
Case 8:17-cv-01885-CJC-JPR Document 261 Filed 01/25/23 Page 4 of 30 Page ID #:8919
1 TABLE OF CONTENTS
2 TABLE OF CONTENTS ........................................................................................... 4
3 TABLE OF AUTHORITIES ...................................................................................... 5
INTRODUCTION .......................................................................................... 8
4
RELEVANT FACTs ....................................................................................... 9
5 A. Prior to trial, the Court confirmed that no further pretrial
6 motions would be permitted, and each party would have two
opportunities to examine each witness. ............................................ 9
7 B. In the middle of trial, Defendants made a surprise and untimely
8 oral motion in limine to exclude Almanzar’s Atlanta testimony,
which was granted without an adequate examination of the
9 disputed evidence. ........................................................................... 11
10 C. Plaintiff was denied the right to cross-examine Almanzar
following her direct testimony. ....................................................... 11
11 D. The evidence at trial proved Defendants’ liability and Plaintiff’s
12 harm. ............................................................................................... 13
ARGUMENT ................................................................................................ 15
13
A. Legal standard for a new trial under Rule 59. ................................ 15
14
B. The summary denial of Plaintiff’s right to cross-examine
15 Almanzar was per se prejudicial error requiring a new trial. ......... 15
16 C. It was prejudicial error to exclude the Atlanta Trial testimony
based on Defendants’ untimely motion in limine........................... 18
17 D. The jury’s verdict was against the weight of evidence at trial,
18 requiring a new trial. ....................................................................... 22
E. Defendants’ misconduct at trial was a deliberate strategy to
19 frustrate Plaintiff’s presentation of his case and improperly
20 influence the jury ............................................................................ 27
F. Taken as a whole, the cumulative effect of the above legal
21 errors and witness misconduct deprived Plaintiff of a fair trial
22 and a new trial should be ordered. .................................................. 28
CONCLUSION ............................................................................................. 28
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NOTICE OF MOTION AND MEMORANDUM ISO PLAINTIFF’S MOTION FOR NEW TRIAL PURSUANT TO
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1 TABLE OF AUTHORITIES
2 Cases
3 Acton v. Merle Norman Cosmetics, Inc.,
163 F.3d 605 (9th Cir. 1998) ............................................................................... 24
4 Alford v. United States,
282 U.S. 687, 691 (1931)................................................................................. 8, 16
5
California v. Green
6 399 U.S. 149, 158 (1970)..................................................................................... 18
Dean v. Trans World Airlines Inc.,
7 924 F.3d 805, 812 (9th Cir. 1991) ....................................................................... 15
8 Dedge v. Kendrick,
849 F.2d 1398 (11th Cir. 1988) ........................................................................... 19
9 Degolos v. Fidelity & Cas. Co. of New York,
313 F.2d 809, 812 (5th Cir. 1963) ........................................................................ 16
10
Deters v. Equifax Credit Information Services, Inc.,
11 202 F.3d 1262 (10th Cir. 2000) ............................................................................ 21
Douglas v. Owens,
12 50 F.3d 1226, 1230, fn. 6 (3rd Cir. 1995)............................................................ 16
13 El-Hakem v. BYJ, Inc.,
415 F.3d 1068, 1077 (9th Cir. 2005) ................................................................... 19
14 Francis v. Clark Equipment Co.,
993 F.2d 545, 550 (6th Cir. 1993) ....................................................................... 16
15
Goldberg v. Kelly,
16 397 U.S. 254, 269 (1970)..................................................................................... 16
Harper v. City of Los Angeles,
17 533 F.3d 1010, 1030 (9th Cir. 2008) ................................................................... 18
18 Harries v. United States,
350 F.2d 231, 236 (9th Cir. 1965) ................................................................... 8, 16
19 In re George G,
68 Cal. App. 3d 146, 157 (Ct. App. 1977) .......................................................... 16
20
Jerden v. Amstutz,
21 430 F.3d 1231, 1241 (9th Cir. 2005) ................................................................... 28
K.J.P. v. County of San Diego,
22 2022 WL 17494968 (S.D. Cal. Aug. 17, 2022) ................................................... 18
23 Kehr v. Smith Barney,
736 F.2d 1283, 1286 (9th Cir. 1984) ................................................................... 27
24 Killian v. Poole,
282 F.3d 1204, 1211 (9th Cir. 2002) ................................................................... 15
25
Landes Constr. Co., Inc. v. Royal Bank of Canada.,
26 833 F.2d 1365, 1371–72 (9th Cir.1987) .............................................................. 22
McCarthy v. Mobile Cranes, Inc.,
27 199 Cal. App. 2d 500, 509-510 (Ct. App. 1962) ................................................. 16
28 McNeill v. Butz,
480 F.2d 314, 321 (4th Cir. 1973) ................................................................... 8, 16
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NOTICE OF MOTION AND MEMORANDUM ISO PLAINTIFF’S MOTION FOR NEW TRIAL PURSUANT TO
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1 Wiedemann v. Galiano,
722 F.2d 335, 337 (7th Cir. 1940) ................................................................. 27, 28
2
California Statutes
3
Civil Code, section 3344........................................................................................... 25
4
Federal Statutes
5
Fed. R. Civ. P. 611(c)(2).......................................................................................... 15
6 Fed. R. Civ. P. 59(a) ................................................................................................. 15
7 Fed. R. Evid. 402 ...................................................................................................... 21
8 Fed. R. Evid. 403 .......................................................................................... 18, 20, 21
Fed. R. Evid. 404(a).................................................................................................. 15
9 Fed. R. Evid. 607 ...................................................................................................... 18
10 Fed. R. Evid. 801(d)(2) ............................................................................................. 20
11
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15
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NOTICE OF MOTION AND MEMORANDUM ISO PLAINTIFF’S MOTION FOR NEW TRIAL PURSUANT TO
FRCP RULE 59
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1 INTRODUCTION
2 Federal Rule of Civil Procedure 59 authorizes the Court to vacate a judgment
3 and order a new trial where prejudicial errors of law were committed, when the
4 verdict is against the weight of the evidence, and when the cumulative effect of
5 those factors resulted in an unfair trial.
6 In this case, two significant prejudicial errors of law occurred during trial.
7 First, Plaintiff was deprived of his fundamental and substantial right to cross-
8 examine Cardi B at trial. Defendants were permitted to elicit testimony from her on
9 direct examination, and Plaintiff was not permitted to cross-examine her, leaving
10 the credibility of a key party witness to remain unchallenged and unimpeached. As
11 explained below, when the right to cross-examine has been denied, or even unduly
12 restricted, harm is presumed, the prejudice is undeniable, and new trial is required.
13 Alford v. United States, 282 U.S. 687, 691 (1931) (reversing Ninth Circuit
14 affirmation of trial court’s order limiting cross-examination and remanding for new
15 trial); see also McNeill v. Butz, 480 F.2d 314, 321 (4th Cir. 1973); United States v.
16 Price, 577 F.2d 1356, 1364 (9th Cir. 1978); United States v. Caudle, 606 F.2d 451,
17 458 (4th Cir. 1979) (reversing and remanding for new trial); United States v. Jones,
18 982 F.2d 380, 384 (9th Cir. 1992) (reversing and remanding for new trial, holding
19 recross must be allowed to probe new matters elicited on redirect).
20 Second, Defendants made an untimely, surprise oral motion in limine to
21 exclude crucial and relevant testimony of Cardi B from a defamation trial which
22 took place in federal court in Atlanta, Georgia in January 2022. The claims in that
23 case, in which Cardi B, as a plaintiff, sued for false statements made about her on
24 the internet, are strikingly similar to the claims in this case. Plaintiff sought to
25 examine Cardi B on her sworn testimony regarding the alleged injury she suffered
26 due to the way she was being publicly portrayed. The Court granted Defendants’
27 oral motion, without reviewing the testimony Plaintiff sought to present and which
28 Defendants sought to exclude. The exclusion was in error, and substantially
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NOTICE OF MOTION AND MEMORANDUM ISO PLAINTIFF’S MOTION FOR NEW TRIAL PURSUANT TO
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25 At trial, the jury heard uncontroverted testimony from Plaintiff that his back
26 tattoo was his art, his masterpiece, and is part of his identity. Conlan Decl., Ex. 3
27 [Trial Transcript (“TT”) Day 1] at 186:19-21. There was also uncontroverted
28 testimony from Plaintiff that he never consented to the use of his likeness, and that
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1 he suffered substantial embarrassment and harm from the misuse of his likeness. Id.
2 at 189:14-15; 213:21-23; Conlan Decl. Exh. 4 [TT Day 2] at 32:8-11; 39:8-10.
3 Through a wealth of trial testimony and exhibits admitted into evidence,
4 Plaintiff established that Defendants knew they were using Plaintiff’s likeness to
5 advertise their mixtape, whether through actual knowledge or constructive
6 knowledge of their agents. Conlan Decl. Exh. 5 [TT Day 3] at 179:21-24; 187:4-10;
7 Exh. 6 [Trial Exh. 125] (“I copied and pasted directly from google.”) and Exh. 7
8 [Trial Exh. 128] (“The picture(s) of Brophy are present on numerous tattoo
9 websites. . . all the pics I’m seeing of Brophy, including what you sent me, have
10 him standing vertically, with both arms at his sides. In the cover art photo your did,
11 however, the tattoo is transposed onto the back of the original model. . .”)
12 Notably, Defendants did not argue at trial that Timm Gooden, who
13 photoshopped Plaintiff’s likeness onto the mixtape cover for Defendants, was
14 acting outside the scope of his authority. Nor did they argue that Mr. Dowling,
15 Defendants’ attorney, was acting outside the scope of this authority when he readily
16 identified Plaintiff’s likeness. The undisputed evidence showed Defendants knew
17 they were using Plaintiff’s actual likeness, and continued to use it over Plaintiff’s
18 objection, despite receiving a cease-and-desist letter from Plaintiff and their
19 subsequent defense against Plaintiff’s lawsuit.
20 Finally, even setting aside Plaintiff’s uncontradicted and compelling
21 testimony regarding the harm he suffered, California Civil Code section 3344
22 serves as a substitute for proof of damages. Upon a showing of knowing use of a
23 person’s likeness without consent, the statute authorizes the greater of seven
24 hundred fifty dollars ($750) or the actual damages suffered. Cal. Civ. Code §
25 3344(a).
26 The jury’s verdict for Defendants cannot be reconciled with the evidence that
27 Defendants used Brophy’s likeness without his prior consent—all that is needed for
28 Brophy to prevail on his Section 3344 claim.
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1 ARGUMENT
2 A. Legal standard for a new trial under Rule 59.
3 A motion for a new trial pursuant to Rule 59 may be granted “for any of the
4 reasons for which new trials have heretofore been granted in actions at law in the
5 courts of the United States.” Fed. R. Civ. P. 59(a). These reasons include, but are
6 not limited to, claims “that the verdict is against the weight of the evidence. . .or
7 that, for other reasons, the trial was not fair to the party moving.” Molski v. M.J.
8 Cable, Inc., 481 F.3d 724, 729 (9th Cir.2007).
9 A new trial may also be granted based on errors of law during trial, including
10 erroneous evidentiary rulings that affect a party’s substantial rights and result in
11 prejudice. Millenkamp v. Davisco Foods Intern. Inc., 562 F.3d 971, 976-977 (9th
12 Cir. 2009); see also Dean v. Trans World Airlines Inc., 924 F.3d 805, 812 (9th Cir.
13 1991) (reversing and remanding for new trial after trial court erroneously excluded
14 admissible impeachment evidence).
15 Finally, “even if no single error were prejudicial, where there are several
16 substantial errors, ‘their cumulative effect may nevertheless be so prejudicial as to
17 require reversal.’” Killian v. Poole, 282 F.3d 1204, 1211 (9th Cir. 2002), quoting
18 United States v. de Cruz, 82 F.3d 856, 868 (9th Cir. 1996).
19 B. The summary denial of Plaintiff’s right to cross-examine
20 Almanzar was per se prejudicial error requiring a new trial.
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1 K.J.P. v. County of San Diego, 2022 WL 17494968 (S.D. Cal. Aug. 17, 2022) (prior
2 bad acts evidence properly admitted for impeachment under FRE 607). Plaintiff
3 similarly was unable to impeach Almanzar’s direct testimony about her
4 commitment to her family with a prior sworn declaration in this case, when she
5 sought to delay trial, purportedly for family reasons, only to jet off to Paris for
6 fashion week once the trial was continued.
7 Denying Plaintiff his fundamental right to cross-examine Almanzar deprived
8 the jury of the “greatest legal engine ever invented for the discovery of truth.”
9 California v. Green 399 U.S. 149, 158 (1970). The jury was therefore unable to
10 fully evaluate Almanzar’s credibility and the testimony of a key witness. Denial of
11 cross-examination was prejudicial error, requiring a new trial.
12 C. It was prejudicial error to exclude the Atlanta Trial testimony
13 based on Defendants’ untimely motion in limine.
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1 143:8-14. Notably, Almanzar’s trial counsel in the Atlanta Trial, Lisa Moore, was
2 also Almanzar’s trial counsel in this action, and Defendants well-knew exactly how
3 Almanzar had testified in that action.
4 As a result, Plaintiff had limited ability to respond to Defendants’ contentions
5 seeking exclusion. See Conlan Decl. Exh. 4 [Oct. 19, 2022 Tr.] at 140:23-147:23;
6 267:24-270:24 [identifying prejudice]. Granting Defendants’ motion created a
7 glaring void in Plaintiff’s trial strategy, and diminished his credibility in the eyes of
8 the jury (having referred to evidence in his opening statement that could not be
9 used). See Conlan Decl. Exh. 3 [Oct. 18, 2022 Tr.] at 168:20-169:3 [previewing in
10 opening statement Almanzar sworn testimony]. The prejudice caused by
11 Defendants’ litigation tactic is clear, and Defendants’ motion should have been
12 denied on the ground of untimeliness, alone.
13 2. The exclusion of all Atlanta Trial testimony was overly
broad, failed to balance the relevant factors and
14 substantially prejudiced Plaintiff.
15 There is no dispute that Almanzar’s Atlanta Trial testimony is admissible as
16 an opposing party statement. See FRE 801(d)(2). The Court also conceded that the
17 proffered testimony was relevant, both to the credibility of Almanzar and to issues
18 in this case, such as the harm suffered by Plaintiff. Conlan Decl. Exh. 4 [Oct 19,
19 2022 Tr.] at 147:12-23. However, the Court excluded the testimony on 403
20 grounds, without explicitly engaging in a balancing of the FRE 403 factors as the
21 law requires. Id. at 147:12-23; see also U.S. v. Moran, 493 F.3d 1002, 1014 (9th
22 Cir. 2007) (de novo standard of review applicable where court did not engage in
23 explicit balancing of Rule 403 factors).
24 In fact, Plaintiff offered to preview the testimony at issue, but the Court
25 excluded the Atlanta Trial testimony without reviewing that evidence at all. Id. at
26 147:18-23. This was error. The Ninth Circuit has held that the exclusion of
27 evidence on FRE 403 grounds without reviewing the evidence is error, and violates
28 a party’s right to due process and fair trial. United States v. Curtin, 489 F.3d 935,
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1 958 (9th Cir. 2007) (“We hold as a matter of law that a court does not properly
2 exercise its balancing discretion under Rule 403 when it fails to place on the scales
3 and personally examine and evaluate all that it must weigh.”) (emphasis added).
4 Put simply, “one cannot evaluate in a Rule 403 context what one has not seen
5 or read.” Id.; see also United States v. McElmurry, 776 F.3d 1061, 1069 (9th Cir.
6 2015) (holding district court must “read every word” of what will be presented to
7 the jury and reversing and remanding for new trial with order for district court to
8 analyze evidence under FRE 403 “with knowledge of what the evidence is”).
9 Finally, the broad exclusion of the Atlanta Trial testimony failed to
10 appropriately balance the relevant factors, and was in error for that reason alone.
11 The “default” rule is all relevant evidence is admissible. FRE 402. The balancing
12 test of Federal Rule of Evidence 403 strongly favors admissibility, and exclusion is
13 a disfavored remedy. FRE 403 (evidence may be excluded only where probative
14 value substantially outweighed by other factors); see also United States v. Fleming,
15 215 F.3d 930, 939 (9th Cir. 2000) (“Rule 403 favors admissibility); United States v.
16 Monzon-Silva, 791 Fed.Appx. 671, 672 (9th Cir. 2020) (exclusion of relevant
17 evidence is “an extraordinary remedy to be used sparingly”). “In performing the
18 403 balancing, the court should give the evidence its maximum reasonable
19 probative force and its minimum reasonable prejudicial value.” Deters v. Equifax
20 Credit Information Services, Inc., 202 F.3d 1262, 1274 (10th Cir. 2000).
21 Here, the Court excluded evidence that was not just relevant, but critical to
22 Plaintiff’s case. “The more essential evidence is to a party’s case, the more
23 probative it is.” Sowers v. R.J. Reynolds Tobacco Company, 9745 F.3d 1112, 1122
24 (11th Cir. 2020). In excluding the Atlanta Trial testimony, the Court improperly
25 minimized the probative value of the evidence, and unduly relied on Defendants’
26 counsel’s characterization of the evidence (it would consume too much time to
27 explain, because it was testimony from a trial in a different state).
28 //
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1 The Court also erred in failing to consider whether the factors favoring
2 exclusion could be mitigated given Plaintiff’s need for the evidence, such as
3 whether a limited portion could be utilized, or a limiting instruction provided. See
4 Advisory Note to FRE 403 (“In reaching a decision whether to exclude on grounds
5 of unfair prejudice, consideration should be given to the probable effectiveness or
6 lack of effectiveness of a limiting instruction”); United States v. Boulware, 384
7 F.3d 794, 808 (9th Cir. 2004) (concerns about undue weight “could have been dealt
8 with by a cautionary instruction”, and court “should easily have been able to
9 control” waste of time or confusion of issues).
10 Here, the Court declined to review the testimony excerpts that Plaintiff
11 intended to use, accepted Defendants’ characterization of the evidence, and then
12 disallowed all use of Almanzar’s testimony from the Atlanta Trial. The testimony
13 was directly probative of Almanzar’s understanding of the harm caused when one is
14 falsely portrayed on the internet, and contradicted her dismissive view of Plaintiff’s
15 rights in this action. The Atlanta Trial testimony went directly to Almanzar’s
16 credibility and to a central issue in dispute—the harm suffered by Plaintiff. Obrey,
17 400 F.3d at 702. The erroneous exclusion was prejudicial, requiring a new trial.
18 D. The jury’s verdict was against the weight of evidence at trial,
19 requiring a new trial.
20 A new trial should be ordered where, after giving full respect to the jury's
21 findings, the judge “is left with the definite and firm conviction that a mistake has
22 been committed.” Landes Constr. Co., Inc. v. Royal Bank of Canada., 833 F.2d
23 1365, 1371–72 (9th Cir.1987). On a motion for new trial, “the district court has
24 ‘the duty ... to weigh the evidence as the court saw it, and to set aside the verdict of
25 the jury, even though supported by substantial evidence, where, in [the court's]
26 conscientious opinion, the verdict is contrary to the clear weight of the evidence.’”
27 Molski at 729 (quoting Murphy v. City of Long Beach, 914 F.2d 183, 187 (9th Cir.
28 1990).
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1 218.) Yet Defendants never bothered to investigate whose tattoo and likeness they
2 were adopting to enhance the commercial appeal of their mixtape cover. As
3 Almanzar’s deposition testimony introduced at trial amply demonstrated,
4 Defendants “did not give a fuck” about Plaintiff or the harm Defendants were
5 causing. Conlan Decl., Exh. 24 [Almanzar Dep.] 58:1-62:7; 90:24-91:18; see also
6 Conlan Decl., Exh. 4 [TT Day 2] at 177:2-3, 178:19-22.
7 To the extent the jury’s verdict could have been based on a failure to show
8 Defendant’s knowing use of Plaintiff’s likeness, the verdict was clearly against the
9 weight of the evidence presented at trial, and a new trial should be granted.
10 2. Plaintiff provided ample evidence of harm and is entitled to
11 nominal and/or statutory damages of at least $750.
12 At trial, Plaintiff and his wife testified at length regarding the harm caused by
13 Defendants’ misappropriate of Plaintiff’s likeness. Conlan Decl. Exh. 4 [TT Day
14 2] at 137:10-13 (“A. Yeah. I feel like he doesn’t sleep as well. He’s – you know,
15 he’s got to take Prilosec every day, grinds his teeth. We just had to get a mouth
16 guard. And I’m like, you, it’s from your stress and constantly always thinking about
17 this.”); see also id. at 135:15-23, 136:5-11. Plaintiff’s testimony strongly supports a
18 damages award (be it significant or nominal) in Plaintiff’s favor.
19 Civil Code, section 3344 states that in any action brought under the statute,
20 the person who violated the section “shall be liable to the injured party … in an
21 amount equal to the greater of seven hundred fifty dollars ($750) or the actual
22 damages suffered by him or her as a result of the unauthorized use….”. Id.,
23 emphasis added. The evidence at trial demonstrated that Plaintiff suffered harm.
24 Plaintiff is therefore entitled to nominal and/or statutory damages of at least $750.
25 To the extent the jury’s verdict was based on a failure to find harm, that
26 verdict is clearly against the weight of evidence presented at trial, and a new trial
27 should be granted.
28 //
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4 defendant changes the work, or uses the work in a different context that
5 “transforms” it into a new creation. See Perfect 10, Inc. v. Amazon.com, Inc., 508
7 The evidence at trial was that Gooden lifted Plaintiff’s likeness directly from
8 an image he found on the Internet, and pasted it onto the mixtape with minimal
9 adjustment. Conlan Decl. Exh. 5 [TT Day 3] at 171:16-19 (“A. No problem. First,
10 I copied the image straight from Google, the Internet, wherever – the gallery I
11 found it from. I pasted it into the actual document onto its own separate layer.”);
12 175:6-9 (“Q. And that mixtape cover reflects that the back tattoo that you found on
13 the Internet and pasted onto the document you were working with? A. Yes.”).
16 Plaintiff’s likeness into a new creation, and their sole concern was superficial
18 face. Id. at 169:22-23 (“A. Well, my primary objective was to put something on
19 there that wasn’t so – like this and to distract from Cardi’s face.”); 38:19 (“A. Yeah.
20 It’s Cardi. That’s the Focus. Focus is Cardi B.”); see also Conlan Decl. Exh. 4 [TT
21 Day 2] at 200:4-5 (“All I was – when I was taking these pictures, all I care about,
23 To the extent the jury’s verdict could have been based on Defendant
25 weight of the evidence presented at trial, and a new trial should be granted.
26 //
27 //
28 //
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1 simple answers from a key party witness. Even those few answers given were
2 invariably delivered in a cloud of obfuscation, including repeated attempts to
3 sidetrack and distract the jury by asserting facts and theories wholly unrelated to the
4 question posed.
5 As previously noted, the question for the Court is whether the trial was fair to
6 Plaintiff. Wiedemann, 722 F.2d at 337. Taking a clear-eyed view with the benefit
7 of hindsight, the trial was plainly unfair to Plaintiff, and a new trial should be
8 ordered.
9 F. Taken as a whole, the cumulative effect of the above legal errors
and witness misconduct deprived Plaintiff of a fair trial and a new
10 trial should be ordered.
11 An accumulation of errors, even if not individually prejudicial, can amount to
12 prejudicial error requiring a new trial. See Killian v. Poole, 282 F.3d 1204, 1211
13 (9th Cir. 2002) (“[E]ven if no single error were prejudicial, where there are several
14 substantial errors, ‘their cumulative effect may nevertheless be so prejudicial as to
15 require reversal.”) (quoting United States v. de Cruz, 82 F.3d 856, 868 (9th Cir.
16 1996); Jerden v. Amstutz, 430 F.3d 1231, 1241 (9th Cir. 2005) (applying
17 cumulative error doctrine to evidentiary errors in civil context and reversing and
18 remanding for new trial).
19 Here, even if the Court concludes its erroneous exclusion of the Atlanta Trial
20 evidence and summary denial of Plaintiff’s right to cross-examine Defendant
21 Almanzar were insufficiently prejudicial by themselves, the cumulative impact of
22 those errors, along with Almanzar’s recalcitrant trial tactics, were sufficient to
23 affect Plaintiff’s substantive right to a fair trial and a new trial should be ordered.
24 CONCLUSION
25 Based on the above legal authorities and evidence admitted at trial, Plaintiff
26 respectfully requests an order vacating the judgment and setting the matter for a
27 new trial.
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Dated: January 25, 2023 CAPPELLO & NOËL LLP
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By: /s/ Lawrence J. Conlan
4 A Barry Cappello
5 Lawrence J. Conlan
Richard Lloyd
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2 CERTIFICATE OF COMPLIANCE
3 “The undersigned, counsel of record for Plaintiff, certifies that this brief
4 contains 6,943 words, which complies with the word limit of L.R. 11-6.1.
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6 Dated: January 25, 2023 CAPPELLO & NOËL LLP
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8 By: /s/ Lawrence J. Conlan
9 A Barry Cappello
Lawrence J. Conlan
10 Richard Lloyd
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NOTICE OF MOTION AND MEMORANDUM ISO PLAINTIFF’S MOTION FOR NEW TRIAL PURSUANT TO
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