BBK Tobacco & Foods LLP v. Central Coast Agriculture Incorporated, et al.

• Court: District Court, D. Arizona
• Decided: October 15, 2025
• Docket: 2:19-cv-05216
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 BBK Tobacco & Foods LLP, No. CV-19-05216-PHX-MTL

10 Plaintiff, ORDER

11 v.

12 Central Coast Agriculture Incorporated, et al., 13 Defendants. 14 15 This action arises out of a trademark dispute that has followed a circuitous route, 16 and the parties show no signs of relenting soon. Pending before the Court are nineteen 17 motions in limine—thirteen filed by Plaintiff BBK Tobacco & Foods, LLP (“BBK”) (Docs. 18 585, 586, 587, 588, 589, 590, 591, 592, 593, 595, 596, 597, and 598) and six filed by 19 Defendant Central Coast Agriculture, Inc. (“CCA”) (Docs. 599, 600, 601, 603, 605, and 20 606). The Court finds that oral argument would not assist the resolution of these issues and 21 is therefore unnecessary under Local Rule 7.2(f). The Court rules as follows. 22 BBK’s Motion in Limine No. 1 (Doc. 585): BBK moves to exclude CCA’s updated 23 unclean hands defense arguing that it was untimely disclosed on September 5, 2025—after 24 the May 14, 2021 MIDP Order deadline and the Court’s August 27, 2025 hearing limiting 25 supplemental disclosures. (Doc. 585 at 5.) CCA argues that the disclosed information (that 26 BBK allegedly improperly registered and used CCA’s Raw Garden brand name) did not 27 occur until after May 14, 2021, and as such, CCA timely supplemented its disclosures 28 within 30 days of when this Court resumed jurisdiction over the case. (Doc. 621.) 1 Under Rule 37(b)(2)(A)(ii), Fed. R. Civ. P., when a party does not obey a discovery 2 order, the court may “prohibit[] the disobedient party from supporting or opposing 3 designated claims or defenses, or from introducing designated matters in evidence.” Here, 4 after the case was remanded from the Ninth Circuit, the parties filed a joint status report on 5 August 20, 2024. (Doc. 469.) In the report, the parties provided their positions on 6 supplementing financial disclosures. (Id.) At the subsequent hearing, the parties presented 7 their positions on reopening discovery. (Doc. 477.) This Court, ultimately, granted the 8 parties’ stipulation to supplement financial disclosures and update related rebuttal expert 9 reports. (Doc. 476.) During these proceedings, CCA did not request to supplement 10 disclosures, and in fact, opposed reopening discovery to fulfill BBK’s requests. (Doc. 477.) 11 Though it was impracticable for CCA to follow the May 14, 2021 deadline, given the 12 timeline that has unfolded, CCA should have requested leave from the Court to supplement 13 its disclosures with this information. As such, the Court finds CCA’s disclosure untimely. 14 Finally, even if the Court permitted CCA’s untimely disclosure, under 15 Rule 37(c)(1), Fed. R. Civ. P., this untimely disclosure is neither substantially justified nor 16 harmless. See Liberty Ins. Corp. v. Brodeur, 41 F.4th 1185, 1191-92 (9th Cir. 2022). As 17 discussed, the late disclosure is not substantially justified, because CCA had the 18 opportunity to request leave to supplement its disclosures in the joint status report and at 19 the August 27, 2025 hearing. Second, the late disclosure is not harmless, because CCA 20 never disclosed documents or witnesses to support its new unclean hands defenses, thereby 21 prejudicing BBK. The Court therefore grants BBK’s Motion (Doc. 585) to exclude CCA’s 22 unclean hands defense. 23 BBK’s Motion in Limine No. 2 (Doc. 586) and CCA’s Motion in Limine No. 6 24 (Doc. 606): BBK and CCA filed cross-motions in limine addressing whether the parties 25 may refer to the legality of their respective products and businesses at trial. (Docs. 586, 26 606.) BBK seeks to preclude any reference to its RAW-brand products as “unlawful,” 27 “illegal,” or “drug paraphernalia.” (Doc. 586 at 2.) CCA moves to preclude BBK from 28 (1) referring to CCA or its witnesses as “drug dealer[s],” a “federally illegal business,” or 1 using similar pejorative language before the jury; and (2) arguing that CCA cannot defend 2 itself because its cannabis products or business is illegal under federal law.* (Doc. 606 3 at 2.) BBK asks the Court to consider these motions together. (Doc. 617 at 2 n.1.) The 4 Court grants both motions in part and denies them in part. 5 Regarding BBK’s Motion (Doc. 586), in the July 2022 Order, the Court held that 6 the goods listed in BBK’s challenged trademark registrations—including rolling papers, 7 cigarette tubes, rolling machines, trays, and grinders—are “traditionally intended for use 8 with tobacco” and therefore exempt from the Controlled Substances Act under 21 U.S.C. 9 § 863(f)(2). (Doc. 443 at 54-55.) The Ninth Circuit affirmed that point. BBK Tobacco & 10 Foods LLP v. Cent. Coast Agric., Inc., No. 22-16190, 2024 WL 1364300, at *2 (9th Cir. 11 Apr. 1, 2024). Those determinations are final and constitute the law of the case. See Thomas 12 v. Bible, 983 F.2d 152, 154 (9th Cir. 1993) (noting that “a court is generally precluded from 13 reconsidering an issue that has already been decided by the same court, or a higher court 14 in the identical case”). To the extent CCA references RAW-branded items outside its 15 counterclaims, it may offer limited factual evidence about their function or marketplace 16 context but not invite the jury to decide their legality under the Controlled Substances Act. 17 See Microsoft Corp. v. Motorola, Inc., 795 F.3d 1024, 1034 (9th Cir. 2015) (noting that the 18 law of the case doctrine does not apply if “the evidence on remand is substantially 19 different”). Counsel should refrain from characterizing either party’s products or conduct 20 as “illegal,” “criminal,” or as “drug paraphernalia,” as such references risk confusing or 21 misleading the jury under Federal Rule of Evidence (“Rule”) 403. See Hsu v. Puma 22 Biotechnology, Inc., No. SACV 15-00865 AG (SHKx), 2018 WL 11669124, at *3 (C.D. 23 Cal. Oct. 24, 2018) (prohibiting counsel from referring to a party’s conduct as “criminal or 24 illegal” before the jury). 25 But BBK’s Motion sweeps too broadly. Evidence describing the nature and 26 marketplace setting of the parties’ products—such as the fact that CCA sells cannabis 27 * In the parties’ proposed final pretrial order, BBK agreed to “exclude any argument that 28 CCA should not be able to defend itself at all in this litigation because of the illegality of CCA’s products under federal law.” (Doc. 645-1 at 39.) 1 goods in state-licensed dispensaries while BBK sells rolling papers and accessories—is 2 relevant to Sleekcraft factors including proximity of the goods, marketing channels, and 3 likelihood of expansion. See AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49 (9th Cir. 4 1979). The likelihood-of-expansion factor may include testimony that regulatory barriers 5 limit BBK’s ability to enter the cannabis market, but that evidence must be presented 6 neutrally and without argument about federal illegality. Broader argument on cannabis 7 legality or enforcement policy would waste time and confuse the jury. 8 Finally, CCA’s Motion (Doc. 606) is granted to the extent it precludes BBK or its 9 witnesses from using the labels signaled by the parties such as “drug dealer,” “illegal 10 business,” or “illegal narcotics.” Such language lacks probative value and poses an undue 11 risk of prejudice under Rule 403. Both motions are otherwise denied without prejudice to 12 the extent they seek vague or categorical exclusions of unspecified “similar” or “like” 13 statements. See United States v. Lewis, 493 F. Supp. 3d 858, 861 (C.D. Cal. 2020). 14 Therefore, the Motions (Docs. 586, 606) are granted in part and denied in part, as 15 explained above. 16 BBK’s Motion in Limine No. 3 (Doc. 587): BBK moves to exclude “[e]vidence or 17 argument relating to CCA’s Dismissed Affirmative Defenses.” (Doc. 587 at 3.) CCA 18 argues that BBK’s motion is overbroad and better suited for objections of specific evidence 19 at trial. (Doc. 623.) The Court’s February 28, 2025 Order resolving the renewed motions 20 for summary judgment dismissed CCA’s affirmative defenses of laches, statute of 21 limitations, waiver, estoppel, and acquiescence. (Doc. 556 at 9-11.) This Court’s summary 22 judgment ruling constitutes the law of the case. See Thomas, 983 F.2d at 154. CCA, 23 therefore, is precluded from asserting these affirmative defenses at trial. “Generally, 24 evidence of dismissed claims is no longer relevant and can be excluded . . . . However, 25 evidence of dismissed claims can be admitted if relevant for a limited purpose.” Zhang v. 26 Cnty of Monterey, No. 17-CV-00007-LHK, 2021 WL 1788615, *5 (N.D. Cal. May 4, 27 2021). The Court also finds, however, BBK’s current motion too broad. The proper course 28 of conduct is for BBK to object at trial and allow the Court to make a ruling on relevance 1 then. The Court therefore denies without prejudice BBK’s Motion (Doc. 587), as 2 described herein. 3 BBK’s Motion in Limine No. 4 (Doc. 588): BBK moves to preclude either side 4 from questioning witnesses about their personal use of cannabis as irrelevant, prejudicial, 5 and likely to confuse the jury. (Doc. 588.) CCA argues that cannabis use is relevant to the 6 likelihood-of-confusion analysis under the Sleekcraft factors because whether a witness 7 uses cannabis is relevant to a jury’s assessment of that testimony. (Doc. 624 at 2.) 8 Rule 401 provides that evidence is relevant if “it has a tendency to make a fact more 9 or less probable than it would be without the evidence and the fact is of consequence in 10 determining the action.” “Irrelevant evidence is not admissible.” Fed. R. Evid. 402. Here, 11 a witness’s use of cannabis does not tend to make any fact of consequence for the 12 infringement claims more or less probable. Based on the current arguments, the Court finds 13 witnesses’ cannabis use irrelevant under Rules 401 and 402. 14 Furthermore, even if some marginal probative value exists, like one’s perception of 15 an event while under the influence of cannabis, the danger of unfair prejudice, confusion, 16 and improper adverse inference substantially outweighs any existing probative value. 17 See Fed. R. Evid. 403. Similarly, a witness’s cannabis use is not a trait related to his or her 18 truthfulness under Rule 608. 19 The Court’s ruling, however, does not preclude a party during cross-examination 20 from raising the issue on a narrow non-propensity basis, such as perception at a specific 21 event, by making a Rule 104 proffer outside the jury’s presence with a limiting instruction. 22 Therefore, the Court grants in part and denies in part BBK’s Motion (Doc. 588), as 23 described herein. 24 BBK’s Motion in Limine No. 5 (Doc. 589): BBK moves to exclude (1) a 2023 25 article published by Forbes magazine, referring to the founder of BBK, Joshua Kesselman, 26 as the “Pinocchio of Pot,” and “(2) any related publicity.” (Doc. 589 at 2.) The Court will 27 exclude the article itself, the epithet, and the reporter’s opinions. These materials are 28 irrelevant to the likelihood-of-confusion analysis and risk unfair prejudice, confusion, and 1 distracting side litigation. Courts have excluded similar evidence under Rule 403, including 2 inflammatory nicknames. See United States v. Green, 648 F.2d 587, 593 (9th Cir. 1981) 3 (affirming the exclusion of evidence under Rule 403 as prejudicial, including testimony 4 about a defective LSD batch and the prejudicial nickname term “Acid King” for inflaming 5 the jury). The article also qualifies as extrinsic character evidence barred by Rules 404 and 6 608(b). 7 But the Motion is overbroad to the extent it seeks to bar all references to statements 8 BBK or Mr. Kesselman themselves made to Forbes. Party admissions may be admissible 9 under Rule 801(d)(2) if properly authenticated, and specific conduct may be probed on 10 cross-examination under Rule 608(b), subject to Rule 403 balancing. The Court will 11 therefore allow limited questioning about specific, attributable statements tied to BBK or 12 its founder, but counsel may not publish or admit the article itself. The request to exclude 13 undefined “related publicity” is denied without prejudice as vague. See Lewis, 493 F. Supp. 14 at 861 (“The failure to specify the evidence that a motion in limine seeks to exclude 15 constitutes a sufficient basis upon which to deny the motion.” (citation modified)). 16 Accordingly, the Motion (Doc. 589) is granted in part and denied in part. 17 BBK’s Motion in Limine No. 6 (Doc. 590): BBK moves to preclude CCA from 18 presenting evidence or argument relating to BBK’s removal of certain statements on its 19 RAW-branded packaging and materials as ordered in 2021 under Republic Technologies 20 (NA), LLC v. BBK Tobacco & Foods, LLP, No. 16-cv-03401 (N.D. Ill.) arguing this 21 evidence is irrelevant and prejudicial. (Doc. 590.) 22 Based on the current record, the Court finds the packaging changes irrelevant and 23 do not bear on the Sleekcraft factors for the RAW versus “Raw Garden” 24 likelihood-of-confusion analysis because the Republic Technologies court did not alter 25 BBK’s use, continuity, or duration of the RAW marks. See Fed. R. Evid. 401. Furthermore, 26 CCA cannot attempt to use the packaging changes to imply that BBK and Mr. Kesselman 27 (who was not a party to the Republic Technologies case) are generally “untruthful” because 28 this is an example of propensity evidence and barred under Rules 404 and 608. See Fed. R. 1 Evid. 404(b)(1) (“Evidence of any other crime, wrong, or act is not admissible to prove a 2 person’s character in order to show that on a particular occasion the person acted in 3 accordance with the character.”); Fed. R. Evid. 608(b) (“[E]xtrinsic evidence is not 4 admissible to prove specific instances of a witness’s conduct in order to attack or support 5 the witness’s character for truthfulness.”). Finally, presenting evidence of the packaging 6 changes because of the lawsuit would invite a trial within a trial about the different issues 7 and standards raised in the Republic Technologies case that could confuse the jury. See 8 Fed. R. Evid. 403. CCA claims that the jury would be confused by the changes in 9 packaging, but the changes are statements being removed from the packages, not changes 10 to the RAW mark itself. 11 The Court therefore grants BBK’s Motion to exclude statements removed from 12 packaging related to the Republic Technologies litigation (Doc. 590). 13 BBK’s Motion in Limine No. 7 (Doc. 591): BBK moves to exclude evidence or 14 argument regarding Mr. Kesselman’s decades-old conviction for selling drug 15 paraphernalia. (Doc. 591 at 2.) Rule 609(b) establishes a strong presumption against 16 admitting convictions more than ten years old, and the conviction here is more than 17 twenty-five years old and unrelated to truthfulness. Its limited probative value is therefore 18 substantially outweighed by the danger of unfair prejudice. See United States v. Bensimon, 19 172 F.3d 1121, 1126 (9th Cir. 1999) (noting that “convictions over 10 years old will be 20 admitted very rarely and only in exceptional circumstances.” (quoting Fed. R. Evid. 609(b) 21 advisory committee’s note) (emphasis in original)). The Court will therefore exclude the 22 conviction as extrinsic character evidence under Rules 403 and 609(b). 23 That said, the Motion is overbroad to the extent it seeks to preclude all references 24 to Mr. Kesselman’s prior conviction regardless of context. CCA argues BBK’s own 25 witnesses, including Mr. Kesselman, have repeatedly referenced his arrest and conviction 26 in interviews and public statements when telling the origin story of the RAW brand. 27 (Doc. 627 at 1-2.) If Plaintiff elicits testimony along these lines, Defendant may cross 28 examine on the same topic, subject to Rule 403 balancing. See United States v. Dunbar, 1 104 F. App’x 638, 640 (9th Cir. 2004) (permitting cross-examination on an old conviction 2 once the defendant introduced it during direct examination); see also United States v. 3 Perry, 857 F.2d 1346, 1352 (9th Cir. 1988) (holding that the defendant “opened the door” 4 to detailed cross on prior convictions by attempting to explain them away). The Court will 5 therefore preclude the conviction as a general matter under Rule 609(b), but reserves 6 judgment on limited cross-examination if Plaintiff first raises the subject. The Motion 7 (Doc. 591) is therefore granted in part and denied in part. 8 BBK’s Motion in Limine No. 8 (Doc. 592): BBK moves to preclude CCA from 9 presenting evidence or argument related to its ownership of any trademark rights in the 10 “Raw Garden” name arguing it is irrelevant. (Doc. 592.) Evidence is relevant if it has a 11 tendency to make a fact more or less probable. Fed. R. Evid. 401. Under Sleekcraft, a factor 12 for jurors to consider is the “defendant’s intent in selecting the mark.” Sleekcraft, 599 F.2d 13 at 348-49. Here, CCA’s California trademark rights and registrations in “Raw Garden” are 14 relevant to this Sleekcraft factor because it may show CCA’s intent to use the mark 15 lawfully. Furthermore, the Court finds that the probative value is not substantially 16 outweighed by any prejudice or juror confusion because the jurors should reasonably be 17 able to distinguish between California trademark issues versus federal trademark 18 infringement. See Rule 403. The Court therefore denies with prejudice BBK’s Motion 19 (Doc. 592). 20 BBK’s Motion in Limine No. 9 (Doc. 593) and CCA’s Motion in Limine No. 4 21 (Doc. 603): The parties filed cross-motions in limine addressing whether CCA’s financial 22 data may be referenced at trial. (Docs. 593, 603.) Both parties agree that BBK’s profit 23 disgorgement claim is off the table, for now, and that CCA’s profit figures are irrelevant. 24 (Doc. 645-1 at 39; Doc. 593 at 3; Doc. 603 at 3 n.1, 4 n.2.) The dispute instead narrows to 25 whether CCA’s gross revenue from its sale of “Raw Garden” branded products has any 26 relevance for the jury. 27 BBK tucked into a footnote the argument that such sales figures are “persuasive 28 evidence” of the unfair marketplace advantage CCA allegedly gained from using the “Raw 1 Garden” name. (Doc. 593 at 3 n.3.) In other words, BBK attempts to reserve the possibility 2 of introducing evidence this Court has already held irrelevant to the jury trial. 3 By BBK’s own framing, the central question for the jury is “whether CCA’s use of 4 the ‘Raw Garden’ name for its cannabis products have caused, or are reasonably likely to 5 cause, purchasers of those products to believe mistakenly that the products share some 6 origination, association or affiliation with BBK’s products identified by its family of RAW 7 marks.” (Doc. 594 at 3.) The Court agrees with CCA that revenue numbers do not make it 8 “more or less probable” that consumers were or would be confused. 9 Indeed, the Court has already spoken on this point. In the August 5, 2025 Order, the 10 Court held that CCA’s revenue numbers “are relevant to an issue that will be tried to the 11 Court, not a jury.” (Doc. 576 at 2.) The Court reiterated the same conclusion when BBK 12 advanced a nearly identical argument in briefing over a protective order. (See Doc. 575 13 at 4-5.) The issue is therefore neither new nor unsettled: CCA’s gross revenues may bear 14 on equitable remedies, but they have no place before the jury tasked with deciding 15 likelihood of confusion. 16 CCA’s Motion (Doc. 603) is granted and BBK’s Motion (Doc. 593) is therefore 17 denied as moot. The parties may not (1) make any reference to BBK’s disgorgement of 18 profits claim, or (2) present any evidence, testimony, or argument regarding CCA’s 19 revenues, profits, or other financial information before the jury. 20 BBK’s Motions in Limine Nos. 10 & 11 (Docs. 595, 596): BBK moves to exclude 21 any evidence or argument that its family of RAW marks is merely descriptive (Doc. 595) 22 and that its marks are invalid as marks merely descriptive of the goods and services they 23 identify (Doc. 596). BBK argues in the motions that CCA should be precluded from 24 claiming that the RAW marks are “merely descriptive” because the law presumes BBK’s 25 marks are distinctive, CCA failed to disclose the argument as required by the MIDP Order, 26 and the argument is irrelevant and prejudicial. (Doc. 595 at 4, 6; Doc. 596 at 5.) 27 Under the MIDP, defendants must “fairly expose the facts and issues to be litigated.” 28 IceMOS Tech. Corp. v. Omron Corp., No. CV-17-02575-PHX-JAT, 2020 WL 2527018, 1 at *3 (D. Ariz. May 18, 2020) (quoting Bryan v. Riddel, 178 Ariz. 472, 477 (1994)). The 2 plaintiff of a trademark action “bears the ultimate burden of proof that his or her mark is 3 valid” and when “the PTO issues a registration without requiring proof of secondary 4 meaning, the presumption is that the mark is inherently distinctive.” Zobmondo Ent., LLC 5 v. Falls Media, LLC, 602 F.3d 1108, 1113-14 (9th Cir. 2010); see also Lahoti v. VeriCheck, 6 Inc., 586 F.3d 1190, 1199 (9th Cir. 2009) (“There can be no serious dispute with the 7 principle that a federal trademark registration of a particular mark supports the 8 distinctiveness of that mark, because the PTO should not otherwise give it protection.”). 9 Under the Sleekcraft factors, the strength of the mark relies in part on “its placement on a 10 continuum of marks.” Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135, 1141 (9th Cir. 11 2002) (citation omitted). 12 Here, BBK should have reasonably known that CCA would contest the 13 distinctiveness of the mark because the Sleekcraft factors rely on this determination. 14 Furthermore, BBK has been on notice since the first round of summary judgment motions 15 that CCA planned to challenge the distinctiveness of the RAW marks. (See Doc. 246.) 16 Finally, the Court finds, based on this record, the distinctiveness of the mark relevant and 17 not prejudicial. BBK has the burden to prove trademark infringement, and therefore, will 18 need to defend challenges to the distinctiveness of the mark made by CCA. The Court 19 therefore denies without prejudice both Motions (Docs. 595, 596). 20 BBK’s Motion in Limine No. 12 (Doc. 597): BBK moves to preclude CCA and its 21 witnesses from presenting any argument or commentary regarding the absence of instances 22 of actual confusion past May 2021. After this case was remanded from the Ninth Circuit, 23 the Court reopened discovery for a limited purpose, to supplement financial information 24 and related rebuttal expert reports. (Docs. 470, 476.) The Court did not allow the parties to 25 supplement anything else past the close of the MIDP deadline of May 14, 2021. (Id.; Doc. 26 31.) BBK argues that CCA should be prohibited from saying no evidence exists for lack of 27 confusion past May 14, 2021, because this could mislead the jurors into thinking no 28 confusion simply existed, not that the Court did not permit supplemental disclosures around 1 this issue. (Doc. 597.) 2 The Court finds no probative value from allowing CCA to introduce statements or 3 argument regarding the lack of confusion evidence past May 14, 2021, and finds that this 4 is substantially outweighed by the risk of prejudice to BBK. See Fed. R. Evid. 403. Instead, 5 the Court will provide an instruction to the jurors that discovery concluded on May 14, 6 2021, and that no inference should be drawn from the absence of evidence after that date. 7 As such, the Court grants BBK’s Motion (Doc. 597). 8 BBK’s Motion in Limine No. 13 (Doc. 598): BBK moves to exclude any reference 9 at trial to court-ordered sanctions issued against any party or counsel, in this or any other 10 case. (Doc. 598 at 1.) Evidence or argument about sanctions is irrelevant to the remaining 11 claims for trademark infringement, false designation, and unfair competition. See Fed. R. 12 Evid. 401-402. Even if marginally relevant, their probative value is outweighed by the 13 danger of unfair prejudice and jury confusion. Fed. R. Evid. 403. The Court will therefore 14 preclude the parties and witnesses from referencing prior sanctions orders, including those 15 in Republic Technologies (NA), LLC v. BBK Tobacco & Foods, LLP, No. 16-C-3401 (N.D. 16 Ill.), or in this action. 17 If BBK introduces evidence touching on the authenticity dispute that gave rise to 18 the prior sanctions order, CCA may seek leave to reference that order for impeachment or 19 clarification, subject to Rule 403 balancing and a limiting instruction. The Court recognizes 20 that the “opening the door” doctrine permits otherwise inadmissible evidence only to rebut 21 a misleading impression created by the opposing party’s presentation. See Microsoft Corp., 22 795 F.3d at 1055 n.23. Unless BBK first raises the issue, all references to sanctions remain 23 excluded under Rules 401-403. Therefore, the Motion (Doc. 598) is granted in part and 24 denied in part, as described herein. 25 CCA’s Motion in Limine No. 1 (Doc. 599): CCA moves to preclude BBK and 26 Mr. Kesselman from presenting evidence related to “purported actual confusion.” 27 (Doc. 599 at 5.) CCA argues that Mr. Kesselman’s testimony of any actual confusion is 28 inadmissible hearsay and untimely disclosed. Mr. Kesselman testified during his deposition 1 with CCA that third parties had expressed confusion to him. (Id. at 3.) BBK supplemented 2 its MIDP disclosures on the day discovery closed, three days after Mr. Kesselman’s 3 deposition. 4 Here, Mr. Kesselman’s testimony is not untimely disclosed because BBK 5 supplemented its disclosures within a reasonable time of discovery and before discovery 6 closed. Also, upon consideration of Lahoti v. VeriCheck, Inc., 636 F.3d 501, 509 (9th Cir. 7 2011), the Court finds based on the current record that Mr. Kesselman’s testimony 8 regarding third parties’ statements about their confusion is not hearsay if it’s offered to 9 show the speaker’s state of mind. See id. (holding customers’ statements of confusion were 10 hearsay but admissible under the state of mind exception); Fed. R. Evid. 803(3). Concerns 11 CCA has with the credibility of Mr. Kesselman’s testimony can be resolved through cross- 12 examination at trial. The Court therefore denies without prejudice CCA’s Motion 13 (Doc. 599). 14 CCA’s Motion in Limine No. 2 (Doc. 600): CCA moves to preclude any evidence 15 or argument concerning the unrelated and voluntarily dismissed Spitzer class action. 16 (Doc. 600 at 2.) Although BBK omitted Spitzer from its final MIDP disclosure, the topic 17 was disclosed in prior supplements and explored at Mr. Kesselman’s deposition, providing 18 sufficient notice under General Order 17-08 and Rule 37(c)(1), Fed. R. Civ. P. 19 See Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 827 (9th Cir. 2011). 20 Nonetheless, the Spitzer pleadings, allegations, and disposition are of minimal probative 21 value to the remaining trademark claims and pose a risk of unfair prejudice, jury confusion, 22 and a mini-trial on collateral issues. See Fed. R. Evid. 403; Tennison v. Circus Circus 23 Enters., Inc., 244 F.3d 684, 690 (9th Cir. 2001) (affirming exclusion where collateral 24 disputes would spawn a “mini-trial”). The parties and witnesses may not refer to the Spitzer 25 allegations or resolution before the jury. 26 BBK may, however, seek to present narrowly tailored, otherwise admissible 27 evidence of contemporaneous third-party confusion or reputational impact tied to the 28 existence (but not the merits) of the Spitzer lawsuit. Any such evidence must first be offered 1 outside the jury’s presence with a proper foundation and non-hearsay purpose or valid 2 exception. Accordingly, the Motion (Doc. 600) is granted in part and denied in part as 3 set forth above. 4 CCA’s Motion in Limine No. 3 (Doc. 601): CCA moves to preclude BBK 5 employee Ian Kobe from offering opinions at trial on (1) likelihood of confusion and 6 (2) the commercial strength or reputation of the RAW mark. (Doc. 601 at 2.) In the July 7 2022 Order, the Court held that Mr. Kobe may offer expert testimony only on the narrow 8 topic of the industry’s use of the color green in cannabis packaging. (Doc. 443 at 20-22.) 9 The Court also held that he may not testify as an expert that companies use different colors 10 within a brand, because that subject is within lay understanding and not helpful under Rule 11 702. (Id. at 20-21.) BBK does not dispute this limitation. It states that Mr. Kobe’s expert 12 testimony “will be limited, consistent with this Court’s ruling on the Daubert motion, only 13 to use of the color green by cannabis companies.” (Doc. 612 at 2.) Accordingly, the Court 14 reaffirms its prior ruling. 15 The Court reserved for another day ruling on Mr. Kobe’s lay testimony. (Doc. 443 16 at 19.) This is that ruling. 17 First, BBK clarifies that Mr. Kobe will not offer any lay opinion on the likelihood 18 of confusion factor. (Doc. 612 at 3.) The only remaining issue is his proposed lay testimony 19 on commercial strength. 20 Mr. Kobe may offer limited Rule 701 lay testimony that is (1) rationally based on 21 his personal perceptions in the course of his work, (2) helpful to the jury’s understanding, 22 and (3) not based on scientific, technical, or other specialized knowledge. Fed. R. Evid. 23 701. Any such testimony must rest on a proper foundation. See Brighton Collectibles, Inc. 24 v. Renaissance Grp. Int’l, No. 06-CV-1115 H (POR), 2008 WL 5500659, at *3 (S.D. Cal. 25 May 13, 2008). Accordingly, the Motion (Doc. 601) is denied without prejudice. CCA 26 may renew its objections at trial if BBK fails to establish an adequate foundation or if the 27 testimony exceeds the limits of Rule 701. 28 . . . . 1 CCA’s Motion in Limine No. 5 (Doc. 605): CCA moves to exclude several 2 screenshots of social media posts that BBK identified in discovery as evidence of 3 marketplace confusion. (Doc. 605 at 2.) CCA argues that the posts cannot be authenticated, 4 constitute inadmissible hearsay, and present undue prejudice. (Id.) 5 CCA’s argument is well-taken. See United States v. Browne, 834 F.3d 403, 412 (3d 6 Cir. 2016) (noting that social media evidence presents unique authentication challenges 7 because of “the great ease with which a social media account may be falsified or a 8 legitimate account may be accessed by an imposter”). “Courts have considered social 9 media comments and posts authenticated where the comments were authored by parties or 10 witnesses, or even where the comment could be associated with what appeared to be a real 11 account and profile with an identifying photo and name.” MGA Ent. Inc. v. Harris, 12 No. 2:20-cv-11548, 2022 WL 4596697, at *5 (C.D. Cal. July 29, 2022) (citation omitted); 13 see also United States v. Papoyan, No. CR 24 04228 001 TUC JGZ (BGM), 2025 WL 14 239130, at *3 (D. Ariz. Jan. 17, 2025) (noting that social media content may be 15 authenticated through “the testimony of a witness with knowledge or ‘[t]he appearance, 16 contents, substance, internal patterns, or other distinctive characteristics of the item, taken 17 together with all the circumstances.’” (quoting Fed. R. Evid. 901)). 18 Here, CCA argues that the screenshots originate from third-party accounts with 19 non-identifying usernames and inactive URLs, raising legitimate concerns about 20 reliability. (Doc. 605 at 4-5.) BBK offers no testimony from the original posters or other 21 direct identifying evidence, relying instead on metadata and capture attestations from its 22 vendor. (See Doc. 616). 23 CCA also raises a valid hearsay concern. The posts consist of out-of-court 24 statements by unidentified third parties, and BBK has not established that the authors are 25 actual consumers or that their posts reflect a then-existing belief relevant to Rule 803(3). 26 See Fed. R. Evid. 801(c), 803(3). BBK contends that the posts are offered only to show 27 the existence of public online references linking the parties’ marks and to support 28 inferences of possible confusion—not to prove that the posters themselves were, in fact, || confused. (Doc. 616 at 5-6.) The Court will defer a final hearsay ruling until BBK || establishes the purpose and foundation for these exhibits at trial. 3 Accordingly, the Motion (Doc. 605) is denied without prejudice. The Court will consider the admissibility of these exhibits at trial, subject to BBK laying foundation. 5 IT IS THEREFORE ORDERED that the following motions are granted: BBK’s 6|| Motions in Limine Nos. | (Doc. 585), 6 (Doc. 590), and 12 (Doc. 597); and CCA’s Motion in Limine No. 4 (Doc. 603). 8 IT IS FURTHER ORDERED that the following motions are granted in part and 9|| denied in part, consistent with this Order: BBK’s Motions in Limine Nos. 2 (Doc. 586), 10|| 4 (Doc. 588), 5 (Doc. 589), 7 (Doc. 591), and 13 (Doc. 598); and CCA’s Motions in Limine || Nos. 2 (Doc. 600) and 6 (Doc. 606). 12 IT IS FURTHER ORDERED that the following motions are denied, consistent 13 || with this Order: BBK’s Motions in Limine Nos. 3 (Doc. 587), 8 (Doc. 592), 9 (Doc. 593), 14]| 10 (Doc. 595), and 11 (Doc. 596); and CCA’s Motions in Limine Nos. 1 (Doc. 599), 3 (Doc. 601) and 5 (Doc. 605). 16 IT IS FURTHER ORDERED that the parties must confer before trial to update 17 || their witness and exhibit lists consistent with these rulings. 18 IT IS FINALLY ORDERED that all rulings are subject to reconsideration at trial in light of the evidence and context then presented. 20 Dated this 15th day of October, 2025. 21

23 Michael T. Liburdi 24 United States District Judge 25 26 27 28

-15-