A. Motion in Limine No. 1: Exclude Report and Testimony of Bill Hartzer

*1 Plaintiff moves to exclude the report and testimony of Bill Hartzer, who was designated as Defendant's expert on internet marketing activities. (Pl.'s Mots. in Limine at 1, Dkt. No. 95.) First, Plaintiff challenges each of Mr. Hartzer's opinions as unreliable and irrelevant. (Id. at 6-11.) Second, Plaintiff seeks to exclude Mr. Hartzer's July 26, 2022 report and July 28, 2022 declaration as untimely. (Id. at 11-12.)

Mr. Hartzer's first opinion is summarized as follows:

(Hartzer Report at 15, Dkt. No. 95-2.)

Plaintiff challenges Mr. Hartzer's opinion as unreliable because Mr. Hartzer could not opine as to who manipulated Google's auto-suggest results. (Pl.'s Mots. in Limine at 6.) Simply because Mr. Hartzer does not opine on this, however, does not make his opinion unreliable. At the very least, Mr. Hartzer's opinion goes to whether there was manipulation in the first place; Defendant could then produce evidence or testimony as to whether that manipulation was done by Plaintiff. Plaintiff's reliance on Cernelle v. Graminex is not persuasive; there, the district court found that Mr. Hartzer “could not point to any conduct by the defendants intended to cause confusion in the search results.” 437 F. Supp. 3d 574, 589 (E.D. Mich. 2020). In so finding, however, the district court did not exclude Mr. Hartzer's opinion under Daubert; rather, the district court was making factual findings after an evidentiary hearing. Id. at 582, 589.

Next, Plaintiff challenges Mr. Hartzer's methodology in determining that Google auto-suggest was manipulated. (Pl.'s Mots. in Limine at 7.) For example, Plaintiff asserts that Mr. Hartzer testified that he does not know how Google auto-suggest works. (Id.) Mr. Hartzer did not so testify; rather, he stated that he did not know the number of searches that were needed to influence Google's auto-suggest. (Hartzer Depo. at 126:10-24, Dkt. No. 95-3.) Mr. Hartzer's opinion, however, is not based on a minimum number of searches. Rather, Mr. Hartzer explains that auto-suggest results can be manipulated, and that there are third-party services that can be hired to manipulate auto-suggest searches. (Hartzer Report ¶¶ 11-12.) Mr. Hartzer also used the SEMrush tool to research the keyword phrase “University of Metaphysical Sciences Sedona Arizona,” and found that there were an estimated 50 searches per month on Google, before comparing it to Microsoft Bing. (Hartzer Report ¶¶ 13-14.) Mr. Hartzer further notes that many of the searches came from outside of the United States, specifically Ecuador and South Africa. (Hartzer Report ¶ 15.)

Plaintiff also contends that the searches from Ecuador are, in fact, from Defendant's founder and CEO, who lives in Ecuador. (Pl.'s Mot. in Limine at 8.) Plaintiff provides no evidence in support, nor is it clear how this affects Mr. Hartzer's conclusion that there was search engine manipulation. Rather, this goes to who manipulated the search results, which Mr. Hartzer does not opine in the challenged conclusion. Mr. Hartzer may testify as to this opinion.

*2 Mr. Hartzer's second opinion is summarized as follows:

(Hartzer Report at 15.)

Plaintiff argues that Mr. Hartzer's opinion is not reliable because the Settlement Agreement does not require Plaintiff to take the “extra step” of adding Defendant's trademark as a negative keyword. (Pl.'s Mots. in Limine at 9.) Rather, Mr. Hartzer assumed that the Settlement Agreement required use of the negative key words, despite Mr. Hartzer having no expertise in contract interpretation. (Id.)

The Court agrees that Mr. Hartzer has no expertise to opine as to what the Settlement Agreement requires. Plaintiff, however, does not explain how Mr. Hartzer's mistaken belief about the Settlement Agreement affects the reliability of Mr. Hartzer's opinion that Plaintiff did not include Defendant's trademark as a negative keyword. These are two separate issues. Mr. Hartzer may testify as to his second opinion, but cannot opine as to whether the Settlement Agreement requires a party to use negative keywords.

Finally, Mr. Hartzer opines:

(Hartzer Report at 15.)

Plaintiff contends that the opinion is irrelevant because the Settlement Agreement does not prohibit search engine optimization (“SEO”)-related tasks. (Pl.'s Mots. in Limine at 10.) Defendant responds that Plaintiff's SEO techniques go to the issue of brand confusion, which in turn goes to Defendant's counterclaim for common law unfair competition. (Def.'s Opp'n at 7, Dkt. No. 107.) Thus, it is not apparent to the Court that Mr. Hartzer's opinion is wholly irrelevant.

In the alternative, Plaintiff argues that Mr. Hartzer's opinion is unreliable because he cannot identify the cause of brand confusion. (Pl.'s Mots. in Limine at 10.) After reviewing Mr. Hartzer's reports, the Court finds that Mr. Hartzer adequately explains the basis of his opinion. For example, Mr. Hartzer identifies the primary reasons why Google gets confused between separate brands or trademarks, before explaining why that reason does or does not apply. (Hartzer Report ¶¶ 18-19.) He then explains his review of the primary website search engine rankings and “anchor text,” including the available tools used for his review, as well as identifying specific examples. (Hartzer Report ¶ 19; see also Hartzer Decl. ¶¶ 19-20, Dkt. No. 63-1.)

Plaintiff's arguments to the contrary are not persuasive. For example, Plaintiff points to Mr. Hartzer's deposition testimony, in which Mr. Hartzer was asked if it was possible that search engines might confuse “University of Metaphysics” and “University of Metaphysical Sciences.” (Id.; see Hartzer Depo. at 64:19-22.) In response, Mr. Hartzer stated that he could not specifically answer that question because it was dependent. (Hartzer Depo. at 64:23-65:1.) It is unclear how this answer demonstrates that Mr. Hartzer's opinion is unreliable. Plaintiff also complains that Mr. Hartzer's report “uses vague loose language to avoid providing a foundation for his opinion,” but provides no explanation for how the statement lacks foundation. (Pl.'s Mots. in Limine at 10.) Plaintiff then theorizes that Defendant's use of Plaintiff's marks could have caused the confusion, but again provides no explanation for whether this is a reasonable assumption or not. (Id. at 10-11.)

*3 Accordingly, Mr. Hartzer may testify as to his third opinion.

Finally, Plaintiff argues that Mr. Hartzer's reports provided after the July 22, 2022 expert disclosure deadline should be excluded, specifically his July 26, 2022 report and July 28, 2022 declaration. (Pl.'s Mots. in Limine at 11.)

The parties dispute whether Mr. Hartzer's July 26, 2022 report and July 28, 2022 declaration are supplemental reports, particularly as to the issue of backlinks. It is not entirely clear to the Court that Mr. Hartzer's opinions regarding backlinks was merely a supplement to the July 22, 2022 report, although other portions of the reports have significant overlap (including portions of the July 22, 2022 report simply being copied and pasted into the July 28, 2022 declaration). (Compare Hartzer Report ¶ 18 with Hartzer Decl. ¶ 17.) Regardless, the Court will excuse the untimely disclosure of these reports in light of the lack of any harm.

Federal Rule of Civil Procedure 26(a) “requires a party to disclose expert reports ‘at the times and in the sequence that the court orders.’ ” Mangiaracina v. Bnsf Ry. Co., No. 16-cv-05270-JST, 2021 U.S. Dist. LEXIS 212888, at *4 (N.D. Cal. Nov. 3, 2021). Rule 37(c)(1), in turn, states: “If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.”

Here, Plaintiff identifies no harm from the late disclosures, the last of which was disclosed a week after the expert disclosure deadline. (See Pl.'s Mots. in Limine at 11.) The disclosure also occurred two months before Mr. Hartzer's September 28, 2022 deposition, during which Plaintiff deposes Mr. Hartzer about all three opinions. Plaintiff was also able to produce a rebuttal witness that addressed all three of Mr. Hartzer's opinions. (See Dkt. No. 72 at 2 (designating Daniel Stratford as a rebuttal witness to Mr. Hartzer's report “disclosed by the Defendant on July 22, 2022 and supplemented on July 26, 2022 and then submitted as a declaration ... on July 28, 2022”).) Thus, the Court finds that the late disclosure was harmless.

In the alternative, Plaintiff argues that the opinions regarding backlinks are not reliable because Mr. Hartzer did not verify the links in the spreadsheet or look at the ownership details. (Pl.'s Mots. in Limine at 11.) Similar to its arguments as to Mr. Hartzer's third opinion, however, Plaintiff does not explain how the failure to verify links or ownership affects Mr. Hartzer's opinions. It is not the Court's job to make arguments for the parties. Accordingly, the Court will not exclude these reports.

For the reasons stated above, the Court DENIES Plaintiff's Motion in Limine No. 1, except that Mr. Hartzer cannot testify as to whether the Settlement Agreement requires a party to use negative keywords.

B. Motion in Limine No. 2: Exclude Untimely Damages Theories

Plaintiff moves to exclude Defendant's damages theories as untimely, specifically: (1) Defendant's computation of damages from manipulation of Google's auto-suggest, and (2) Defendant's damages for redirecting web traffic by use of unnatural backlinks. (Pl.'s Mots. in Limine at 14.) In its opposition, Defendant withdrew its damages calculation with respect to the unnatural backlinks. (Def.'s Opp'n at 19 n.4.) Thus, the only remaining issue is whether Defendant's disclosure of damages from manipulation of Google's auto-suggest was timely.

*4 The Court finds that Defendant's disclosure was not timely. The parties do not dispute that Defendant did not first produce its computation of damages from manipulation of Google's auto-suggest until September 21, 2022, long after the June 17, 2022 fact discovery cutoff. (Pl.'s Mots. in Limine at 14; Def.'s Opp'n at 19.) At that time, Defendant asserted damages of $85,134.06, calculated as: 50 searches per month x 360 months = 18,000 diverted searches at a .589% conversion rate at an average sale of $803. (Pl.'s Mot. in Limine at 14; Def.'s Opp'n at 20.) On October 6, 2022 -- five days before the motions in limine were then due[1] -- Defendant provided a supplemental disclosure now asserting damages from manipulation of Google's auto-suggest of $1,047,915. (Pl.'s Mot. in Limine at 15; Def.'s Opp'n at 23.) Defendant purportedly calculated this as 1,250 visits per month x 360 months = 450,000 diverted searches at a .29% conversion rate at an average sale of $803. (Id.)

Defendant asserts that the late disclosure was justified because it needed Mr. Hartzer's opinion from July 22, 2022 to determine the number of searches. (Def.'s Opp'n at 18.) Defendant further contends that between July 22, 2022 and September 21, 2022, Defendant's counsel was busy with the cross motions for summary judgment, a two-week vacation, and running a litigation practice. (Id. at 18 n.3.) As to the October 6, 2022 disclosure, Defendant asserts that it was not until further discussions with Mr. Hartzer after his September 28, 2022 deposition that Defendant determined that the SEMrush data only represented 4% of total internet traffic. (Id. at 22.)

The Court is skeptical that this justifies the late disclosures. Moreover, at most, this justified the failure to disclose the precise number of searches. This did not, however, justify the failure to disclose the calculation itself, particularly the conversion rate and average sale. This calculation, even if it lacked the specific number of searches, could have been earlier disclosed as Defendant explains that the .589% conversion rate was calculated by Judith Pasko, not Mr. Hartzer. (Def.'s Opp'n at 21.) Defendant further explains that Ms. Pasko will explain how the conversion rate was arrived at and the reduction of the conversion rate used based on “her personal knowledge based on her day to day operations of Defendant's business enterprise.” (Id. at 23.) Yet Defendant acknowledged at the hearing that the conversion rate was not disclosed to Plaintiff until September 21, 2022, preventing Plaintiff from being able to question Ms. Pasko about the basis for this conversion rate. Indeed, per Plaintiff's motion in limine, it does not appear that Plaintiff was even aware that Ms. Pasko provided the .589% conversion rate, as they state that they do not know where this rate comes from. (Pl.'s Mots. in Limine at 15.)

Rule 26 requires that a party provide a “computation of each category of damages claimed by the disclosing party” in its initial disclosures. Moreover, while “[a] computation of damages may not need to be detailed early in the case before all relevant documents or evidence has been obtained by the plaintiff[, a]s discovery proceeds ... the plaintiff is required to supplement its initial damages computation to reflect the information obtained through discovery.” Erhart v. Bofi Holding, No. 15-cv-02287-BAS-NLS, 2022 U.S. Dist. LEXIS 7271, at *7 (S.D. Cal. Jan. 13, 2022) (internal quotation omitted). Defendant had a duty to disclose its computation of damages in a timely manner. Because it did not, Plaintiff was unduly prejudiced as it lost the opportunity to understand the basis of the conversion rate, affecting its ability to challenge it.

At the hearing, Defendant acknowledged that the disclosures were late, but asked that the Court instead permit Plaintiff to depose Ms. Pasko regarding the conversion rate, with Defendant paying for the deposition costs and Plaintiff's attorney's fees. While this would help alleviate some of the prejudice, the Court ultimately finds that permitting such a solution would be unfair to Plaintiff, particularly when Plaintiff has been prevented from obtaining evidence due to its failure to comply with the discovery deadlines. (See Dkt. No. 51 (preventing Plaintiff from issuing subpoena to Google because it was not timely issued).) Indeed, the only reason why there is time to hold a deposition now is because the parties requested an extension of the trial deadlines on the eve of trial. To allow Defendant to take advantage of this extension would be unfair to Plaintiff. Accordingly, the Court GRANTS Plaintiff's Motion in Limine No. 2 and excludes this untimely damages theory.

C. Motion in Limine No. 3: Exclude Pre-Trial Rulings

*5 Plaintiff moves to exclude any reference of the Court's pre-trial rulings, including the order on the parties' summary judgment motions. (Pl.'s Mots. in Limine at 17.) Defendant opposes on the ground that it may need to reference the summary judgment order if Plaintiff tries to assert breach of the implied covenant of good faith and fair dealing as to the three unregistered marks. (Def.'s Opp'n at 12.) As discussed below with respect to Defendant's Motion in Limine No. 4, Plaintiff cannot bring an implied covenant of good faith and fair dealing claim as to the three unregistered marks. Accordingly, Defendant's concern regarding the summary judgment order is moot. The Court GRANTS Plaintiff's Motion in Limine No. 3.

D. Motion in Limine No. 4: Exclude Prior Litigation

Finally, Plaintiff moves to exclude any reference to the prior litigation between the parties, International Metaphysical Ministry Inc. v. Schaefer, 18-cv-4524-SBA, with the exception of the settlement agreement and the negotiation of the settlement agreement. (Pl.'s Mots. in Limine at 18.) Defendant did not file an opposition to this motion in limine.[2] Accordingly, the Court GRANTS Plaintiff's Motion in Limine No. 4 as unopposed. In any case, the Court finds that exclusion would have been warranted given the limited relevance and significant potential of undue prejudice, including a jury deciding the instant case based on what occurred in the prior case separate from the settlement.

A. Motion in Limine Nos. 1 and 2: Exclude Evidence of Defendant's Alleged Breach Based on Plaintiff's Failure to Provide Pre-Suit Notification

Defendant moves to exclude evidence of Defendant's alleged breach of § 7.2 and § 5 of the Settlement Agreement based on Plaintiff's failure to provide Defendant with the mandatory pre-suit notification required under the Settlement Agreement. (Def.'s Mot. in Limine at 1, 3.)

As an initial matter, the Court agrees with Plaintiff that these are improper motions in limine. (See Pl.'s Opp'n at 1.) “A motion in limine is not a proper vehicle for a party to ask the Court to weigh the sufficiency of the evidence to support a particular claim or defense, because that is the function of a motion for summary judgment, with its accompanying and crucial procedural safeguards.” Elliott v. Versa CIC, L.P., 349 F. Supp. 3d 1000, 1002 (S.D. Cal. 2018) (internal quotation omitted); see also FiTeq Inc. v. Venture Corp., No. 13-cv-01946-BLF, 2016 U.S. Dist. LEXIS 60213, at *5-6 (N.D. Cal. Apr. 28, 2016) (“The Court also agrees that this motion in limine is, in effect, an improper motion for summary judgment. The sufficiency of Venture's evidence is now a question for trial.”).

Here, Defendant is effectively asking that the Court adjudicate its first counterclaim (“Breach of Contract -- Failure to Notify UMS of Alleged Breaches”), and thus determine that Plaintiff cannot bring its claims for failure to comply with the Settlement Agreement's notification requirement. Defendant, however, never moved for summary judgment on this counterclaim, nor did it seek summary judgment on Plaintiff's claims on the basis of failure to notify. Rather, Plaintiff moved for summary judgment on Defendant's first counterclaim; the Court denied the motion after finding there was a factual dispute as to whether notice was futile. (Summ. J. Order at 16.) Defendant cannot now argue that there is insufficient evidence to support Plaintiff's assertion that it was futile to provide notice. In any case, Defendant offers nothing but conclusory assertions that Plaintiff cannot demonstrate futility. (See Def.'s Mot. in Limine at 2, 7.) Accordingly, the Court DENIES Defendant's Motion in Limine Nos. 1 and 2.

B. Motion in Limine No. 3: Exclude Plaintiff's Damages

*6 Defendant moves to exclude evidence of four categories of Plaintiff's damages. (Def.'s Mot. in Limine at 8.)

First, Defendant moves to exclude all evidence of damage to Plaintiff's standing, reputation, and business operations on the ground that Plaintiff never supplemented its disclosure to provide a calculation of this amount, as required by Rule 26. (Def.'s Mot. in Limine at 8-9.) Plaintiff contends that it produced evidence of such damages, specifically a spreadsheet disclosed with its reply brief in support of its application for a preliminary injunction, as well as an updated spreadsheet from May 2022. (Pl.'s Opp'n at 4-5.) Plaintiff argues that the May 2022 spreadsheet “provides an evidentiary foundation for [Plaintiff]'s damage to its standing and reputation and business operations and lost enrollments and lost revenue. In addition, [Plaintiff] disclosed Ms. Behr as its damages witness.” (Id. at 5.)

The fact that Plaintiff produced evidence, however, is not the same as complying with Rule 26. A party cannot simply point at evidence that happened to be disclosed and expect the other party to determine its damages. “Rule 26(1)(A)(iii) plainly requires [a party] to provide ‘a computation of each category of damages’ in addition to ‘ma[king] available for inspection and copying ... the documents ... on which each computation is based.” Erhart, 2022 U.S. Dist. LEXIS 7271, at *8 (internal quotation omitted); see also Agence France Presse v. Morel, 293 F.R.D. 682, 685 (S.D.N.Y. 2013) (“Put simply, damages computations and the documents supporting those computations are two different things, and Rule 26 obliges parties to disclose and update the former as well as the latter.”). This is particularly the case where the documents at issue do not explain how there is damage to standing, reputation, and business operations, as opposed to lost enrollments only. For example, the spreadsheet attached to the reply brief states the gross income, but does not specifically address standing, reputation, and business operations. (See Dkt. No. 22-2 at 1.) Likewise, the May 2022 spreadsheet only includes the lost enrollments and gross income but fails to include any information regarding damages to standing, reputation, and business operations. It is wholly unclear how Defendant was to determine the damages to standing, reputation, and business operations based on these spreadsheets. Thus, exclusion of this damages theory is warranted.

Next, Defendant moves to exclude evidence of lost enrollments and lost revenue. (Def.'s Mots. in Limine at 9.) While Defendant acknowledges the disclosure of the spreadsheet attached to the reply brief, Defendant contends that Plaintiff claims damages of $150,000 but fails to explain how it arrived at that number. (Id.) Plaintiff, in turn, again points to the spreadsheets, which both parties acknowledged at the hearing were produced by May 2022, prior to the fact discovery cutoff.

The initial disclosures specifically refer to the spreadsheet attached to the reply brief, but does not refer to any other spreadsheet or explain how the $150,000 revenue loss was calculated. (Def.'s Mots. in Limine, Exh. 1 at 9-10.) That said, at the hearing, Defendant acknowledged the timely production of the May 2022 spreadsheet, and that it could figure out the damages calculation based on that spreadsheet. Accordingly, the Court will allow Plaintiff to introduce evidence of lost enrollments and revenue, but will limit the damages to those disclosed in the spreadsheet attached to the reply brief and the May 2022 spreadsheet. These spreadsheets adequately explain the calculations used by Plaintiff to determine its damages. To the extent Defendant complains that there is no evidence that the lost enrollments are related to Defendant's actions, this is a merits issue that is for the jury to decide.

*7 Third, Defendant moves to exclude evidence of higher marketing costs on the ground that Plaintiff failed to produce any evidence of increased advertising or marketing costs, as well as any compilation of its damages. (Def.'s Mots. in Limine at 10-11.) Plaintiff responds that it intends to introduce Trial Exhibits 80 (Expenses for Increased Advertising and Brand Verity) and 81 (Spreadsheet of IMM Google Payments 1/19 to 12/21). (Pl.'s Opp'n at 5.) Plaintiff asserts that Exhibit 81 was produced on May 31, 2022, and stated at the hearing that Exhibit 80 was disclosed on May 31, 2022. (See id.) Thus, both documents were timely produced, and may be introduced as evidence of increased marketing costs.

As to the “compilation of damages,” it appears Plaintiff disclosed the formula for its higher marketing costs, namely an average of $5,000 per month. (Def.'s Mots. in Limine, Exh. 1 at 9.) While Defendant may challenge whether there is evidence underlying this $5,000 monthly average, that is a separate issue from whether the calculation of this damage was provided to Defendant.

Accordingly, the Court will permit evidence of higher marketing costs to be introduced.

Finally, Defendant moves to exclude time spent by Plaintiff's principals pursuing its rights on the ground that “[t]here is no compilation nor indication of the nature or extent of these alleged damages.” (Def.'s Mots. in Limine at 11.) In its opposition, Plaintiff identifies no evidence or disclosure. Accordingly, this theory of damages will be excluded.

C. Motion in Limine No. 4: Exclude Three Unregistered Marks

Defendant moves to preclude the introduction of the three unregistered marks -- University of Metaphysics, University of Sedona, and Theocentric Psychology -- in connection with Plaintiff's third cause of action. (Def.'s Mot. in Limine at 12.) Plaintiff's third cause of action asserts breach of contract based on the Settlement Agreement's prohibition on the use of its registered marks. (Compl. ¶ 136, Dkt. No. 1.)

In its summary judgment order, the Court found that the Settlement Agreement required that a mark be registered before Defendant was prohibited from its use, even as to those marks that were specifically listed in the Settlement Agreement (Summ. J. Order at 9-11.) Thus, the Court concluded that because University of Metaphysics, University of Sedona, and Theocentric Psychology were not registered during the relevant time period, Plaintiff could not bring a breach of contract claim based on Defendant's use of these marks. (See id. at 11, 13.) Rather, the only registered mark that Defendant was prohibited from using was “International Metaphysical Ministry” until its cancellation in April 2021. (Id. at 14.) Accordingly, the three unregistered marks have no apparent relevance to the breach of contract claim, such that preclusion is warranted.

In opposition, Plaintiff makes three arguments. First, Plaintiff again argues that this is not a proper subject for a motion in limine. (Pl.'s Opp'n at 6.) Unlike Defendants' first two motions in limine, however, Defendant does not challenge the sufficiency of the evidence or raise a factual dispute. Rather, Defendant effectively seeks to enforce the Court's summary judgment rulings.

Indeed, in its second argument, Plaintiff contends that the Settlement Agreement expressly prohibits the use of the three unregistered marks. (Pl.'s Opp'n at 6-7.) This is directly contrary to the Court's summary judgment ruling. The Settlement Agreement may have listed the three unregistered marks, but the Court previously found it also requires that the mark be registered. (Summ. J. Order at 9-10.)

Lastly, Plaintiff argues that it can bring a claim for breach of the implied covenant of good faith. (Pl.'s Opp'n at 7-8.) The Court disagrees. As a procedural matter, the Court observes that Plaintiff's implied covenant of good faith claim does not apply to the use of Plaintiff's marks, registered or not. Rather, Plaintiff's complaint only identifies the following actions as breaches of the implied covenant: “UMS's almost immediate accusations, breach of the Non-Disparagement Clause, and posting of fake ‘reviews’ on various websites[.]” (Compl. ¶ 131, Dkt. No. 1.) Plaintiff makes no reference to the advertising terms, which are limited to the third claim for breach of contract. Plaintiff cannot now expand its complaint to include actions that were not previously identified in that count.

*8 At the hearing, Plaintiff argues that in its implied covenant of good faith claim, it included the language “All preceding paragraphs are incorporated by reference as though set forth fully under this Count Two.” (See Compl. ¶ 128.) Thus, Plaintiff contends that this language allows it to bring a claim for the implied covenant based on the use of Plaintiff's marks, even if that use was not specifically identified as one of the actions underlying the claim in Paragraph 131. Courts in this circuit have flatly rejected this type of pleading, explaining that such incorporation by reference fails to give adequate notice of the factual premise of a claim. See Salcido v. Vericrest Fin. & Summit Mgmt. Co. LLC, No. C 13-3450 SBA, 2013 U.S. Dist. LEXIS 158460, at *22 (N.D. Cal. Nov. 4, 2013) (“Plainly, incorporating by reference the first sixty-one paragraphs of the FAC does not provide Defendants with fair notice of the factual premise of Plaintiff's UCL claim.”); Deerpoint Grp., Inc. v. Agrigenix, LLC, 345 F. Supp. 3d 1207, 1234 n.15 (E.D. Cal. 2018) (“It is true that Paragraph 144 incorporates by reference Paragraphs 1 to 143. However, incorporating literally all 143 preceding paragraphs, without specific reference to either disparagement or Paragraph 81, does not give Defendants (or the Court) fair notice of the factual bases of the IIPEA claim.”); Hamilton v. Cty. of Madera, No. 1:20-cv-00484-, 2021 U.S. Dist. LEXIS 77852, at *12-13 (E.D. Cal. Apr. 22, 2021) (“Complaints that repeatedly incorporate preceding paragraphs by reference—sometimes called shotgun pleadings—have been found to violate Rule 8.”); see also Weiland v. Palm Beach Cty. Sheriff's Office, 792 F.3d 1313, 1322-23 (11th Cir. 2015) (finding that “a complaint containing multiple counts where each count adopts the allegations of all preceding counts, causing each successive count to carry all that came before and the last count to be a combination of the entire complaint ... fails ... to give the defendants adequate notice of the claims against them and the grounds upon which each claim rests.”).

In the alternative, Plaintiff argued that if Defendant was confused about the basis of its implied covenant of good faith claim, Defendant should have filed a motion or issued an interrogatory. This argument, however, only highlights why reliance on incorporation by reference is improper. Based on a plain reading of the complaint, it is unreasonable to expect Defendant to file such a motion when the complaint explicitly lists the actions on which the implied covenant of good faith claim is based. Plaintiff suggests that these were mere examples, but there is nothing in the complaint that would give Defendant (or the Court) fair notice that the claim pertained to any other actions. Accordingly, Plaintiff cannot base its implied covenant of good faith claim on the use of these three trademarks, and the Court GRANTS Defendant's Motion in Limine No. 4 as to the implied covenant claim.

That said, following the oral argument, the Court is reconsidering its prior ruling on the motion for summary judgment as to the breach of contract claim, specifically whether prohibiting the use of registered trademarks while also specifically listing unregistered trademarks creates an ambiguity that is for the jury to decide. Indeed, Plaintiff represented at the hearing that Defendant took actions that would demonstrate the parties intended to have the Settlement Agreement include the three unregistered marks, such as adding the marks as negative ad words. Thus, the Court ORDERS the parties to provide supplemental briefing, by January 31, 2023, on the issue of whether interpretation of the contract, including the parties' intent, should be a matter for the jury. The supplemental briefs shall be no more than ten pages, and must cite to the relevant case law in support. The Court will set a hearing on this matter if it believes one is required.

D. Motion in Limine No. 5: Exclude Evidence of Lost Profits

Defendant moves to exclude all evidence of Plaintiff's lost profits on the ground that Plaintiff cannot demonstrate causation as a matter of law. (Def.'s Mots. in Limine at 14.) As with Defendant's first and second motions in limine, this is an improper motion in limine, in which Plaintiff asks that the Court weigh the evidence of causation. See Elliott v. Versa CIC, L.P., 349 F. Supp. 3d at 1002. Specifically, Defendant asks that the Court review certain portions of Michelle Behr's deposition testimony to conclude that Plaintiff cannot demonstrate causation. (Def.'s Mots. in Limine at 15-16.) Plaintiff, in turn, points to other testimony and evidence.

*9 Defendant cannot use a motion in limine to bring a belated summary judgment motion. This issue is now for the fact finder to decide. Accordingly, the Court DENIES Defendant's Motion in Limine No. 5.

E. Motion in Limine No. 6: Exclude CSV Reports

Defendant moves to exclude Brand Verity's and Plaintiff's CSV reports. (Def.'s Mots. in Limine at 17.) The CSV reports include information such as a date, search engine, search term, ad text, advertiser, ad click URL, ad title, ad display URL, search location, registered domain, and destination URL. Defendant contends that the CSV reports should be excluded because they do not show that the URLs originated from Defendant. (Id.) While Plaintiff subpoenaed Google for evidence tracing the URLs, the subpoena was quashed as untimely. (See Dkt. No. 51.)

The CSV reports, however, do not have to prove a connection to Defendant in order to be relevant. As Plaintiff points out, the CSV reports may demonstrate that someone is using Plaintiff's marks to direct a searcher to Defendant's website; that tends to prove or disprove that infringement occurred, even if it does not identify the entity who purchased the advertisement. Other evidence can instead be used to make that connection. Thus, the Court DENIES Defendants' Motion in Limine No. 6.[3]

F. Motion in Limine No. 7: Exclude Report and Testimony of Daniel Stratford

Finally, Defendant moves to exclude the expert report and testimony of Daniel Stratford. (Def.'s Mots. in Limine at 18.)

As an initial matter, Defendant argues Mr. Stratford is not qualified because he has no experience testifying as an expert and did not know what a deposition was. (Def.'s Mots. in Limine at 20.) Defendant cites no authority that an expert must have testified in a prior case, nor does Defendant explain why Mr. Stratford's lack of knowledge of legal proceedings such as depositions affects his expertise on digital marketing and SEO.

Defendant also contends that Mr. Stratford fails to limit his testimony to rebuttal opinions. (Def.'s Mots. in Limine at 20, 22.) The Court agrees that Mr. Stratford cannot offer opinions that are not related to Mr. Hartzer's testimony, as Mr. Stratford was designated solely as a rebuttal expert to rebut the report of Mr. Hartzer. (Dkt. No. 72 at 2.) In any case, Plaintiff states that it “will not solicit any opinion or testimony that is not responsive to Hartzer's opinions and testimony.” (Pl.'s Opp'n at 13.) Accordingly, the Court will prohibit any opinion that is not in response to Mr. Hartzer's opinion and testimony.

Defendant challenges certain opinions by Mr. Stratford. First, Defendant challenges Mr. Stratford's assertion that Plaintiff was not using any money to acquire certain links, and that there is no motive for Plaintiff to take the actions stated by Mr. Hartzer. (Def.'s Mots. in Limine at 20-21; Stratford Decl. at 4:8-9, 9:2, Dkt. No. 72.) These opinions appear to be outside of Mr. Stratford's expertise, and must be excluded.

*10 Second, Defendant challenges Mr. Stratford's conclusions based on the searches he performed, on the ground that Mr. Stratford did not conduct a search based on Defendant's registered trademark. (Defs.' Mots. in Limine at 21.) Rather, Defendant contends that Mr. Stratford used the singular word “science” instead of “sciences,” rendering his opinion speculative and irrelevant. (Id.) It is not clear from the Court's review that Mr. Stratford's searches were so limited; rather, he states that the only time the word “science” was mentioned was when referencing “science degrees.” (Stratford Decl. at 5:28-6.) Thus, it appears Mr. Stratford conducted multiple searches, and was simply describing one of those results.

Third, Defendant argues that Mr. Stratford is “completely wrong” in concluding that any confusion was caused by both Plaintiff's and Defendant's trademarks containing variations of the words “metaphysics” and “university” because Plaintiff only has one registered trademark, “International Metaphysical Ministry.” (Def.'s Mots. in Limine at 21-22.) That registered trademark, in turn, does not include the words “metaphysics” or “University.” (Id. at 22.) Plaintiff, however, does have the trademark “University of Metaphysics,” even if it is not registered. It is unlikely that Mr. Stratford's opinion was limited to only Plaintiff's registered trademark, particularly when his opinion was rendered before the Court's summary judgment ruling limiting Plaintiff's claims to the registered trademarks only.

Accordingly, the Court GRANTS IN PART and DENIES IN PART Defendant's motion in limine. The Court will exclude any opinions and testimony that are not responsive to Mr. Hartzer's opinion and testimony, as well as opinions about whether Plaintiff used money to acquire links or whether Plaintiff had a motive to take certain actions.

On October 18, 2022, Defendant moved to amend its exhibit list to add three exhibits, specifically Mr. Hartzer's July 22, 2022 report, Mr. Hartzer's July 26, 2022 report, and Mr. Hartzer's July 28, 2022 declaration. (Dkt. No. 99.) Plaintiff concedes that there is no prejudice from the addition of these exhibits, but objects solely on the ground that the reports are being challenged in its Motion in Limine No. 1. (Dkt. No. 112 at 1.) As the Court has denied Plaintiff's Motion in Limine No. 1 with the exception of whether the Settlement Agreement requires negative keywords, the Court GRANTS Defendant's motion to amend.

With respect to Kristie Satchell, the Court will not decide at this time whether Ms. Satchell can be brought as a witness. At the hearing, Plaintiff asserted that it will take on the burden of trying to compel Ms. Satchell's appearance for trial. If Plaintiff is able to successfully do so, the Court has no reason to exclude Ms. Satchell so long as Plaintiff does not attempt to take discovery from Ms. Satchell prior to her appearance.

With respect to deposition transcripts, Plaintiff acknowledged at the hearing that they cannot be introduced as exhibits. The Court will permit Plaintiff to re-submit the deposition transcripts as discovery excerpts; the discovery excerpts should be limited to the portions of the deposition that Plaintiff may want to introduce. Plaintiff may not submit the entire deposition transcripts. Plaintiff shall provide its deposition excerpts by April 14, 2023.

Should the case not settle, the parties shall provide revised exhibit lists, objections to evidence, proposed jury verdict forms, and jury instructions, consistent with the rulings in this order, by May 1, 2023. The parties shall lodge two sets of all filings to the Oakland Clerk's Office by May 5, 2023 at 1:00 p.m. The evidentiary objections, jury verdict forms, and jury instructions shall be jointly provided, with explanations for the basis of objection and any response to the objection.

*11 An in-person pretrial conference is set for May 24, 2023, at 2:00 p.m. Jury selection is set for June 9, 2023, and trial is set for June 12, 2023 through June 16, 2023.

For the reasons stated above, the Court:

The parties' supplemental briefs on whether the interpretation of the contract is a jury question are due by January 31, 2023. Plaintiff's revised discovery excerpts are due by April 14, 2023. The parties' revised exhibit lists, objections, proposed jury verdict forms, and jury instructions are due by May 1, 2023, with courtesy copies due by May 5, 2023 at 1:00 p.m. The in-person pretrial conference will be held on May 24, 2023.

IT IS SO ORDERED.