Judge: Alison Mackenzie, Case: 22STCV17848, Date: 2025-04-07 Tentative Ruling

Case Number: 22STCV17848    Hearing Date: April 7, 2025    Dept: 55

Plaintiffs’ MIL No. 1 to preclude Defendant from referencing vague exculpatory clause contrary to public policy is denied. The Court has determined that the probative value of such evidence is not substantially outweighed by the probability that its admission will necessitate undue consumption of time or create substantial danger of undue prejudice, confusing the issues, or misleading the jury.  (EV. CODE § 352.)  The Court, however, will consider the position taken when the jury instructions are assembled and/or at the close of evidence.

Plaintiffs’ MIL No. 2 seeks to preclude Defendants from referencing, offering evidence of, or argument related to any payments Plaintiffs received from crowd funding platforms, including GoFundMe.com, following the fire, on the grounds that such evidence violates the collateral source rule and/or is prejudicial and misleading and therefore should be excluded under Evidence Code Section 352. Defendants argue that they should be able to introduce evidence of such payments to cross examine and/or impeach Plaintiffs if they testify about their financial struggles after the fire.

The collateral source rule precludes the introduction of payments Plaintiffs received from crowd funding platforms to reduce Plaintiffs’ damages. Arambula v. Wells (1999) 72 CA4th 1006, 1015. While such payments could potentially be admissible for some reason other than reducing Plaintiffs’ damages, Defendants must make a “persuasive showing” that the evidence has “substantial probative value” for purposes other than reducing damages. Id.  Defendants have made no such showing in their opposition. The Court therefore grants MIL No. 2. If Defendants want to cross examine Plaintiffs about the crowd funding payments or otherwise introduce evidence of collateral source benefits, they will need to make such a request outside the presence of the jury and lay out what they believe is the substantial probative value of such evidence.  

Defendants’ MIL No. 1 to bifurcate liability from damages: The Court concludes that it will not be more efficient to bifurcate liability from all damages at trial. It will prolong the trial and confuse the jury to have multiple witnesses testify twice on overlapping issues of liability and damages. The motion as drafted is denied. The Court notes, however, that parties oftentimes agree to bifurcate liability for punitive damages from the amount of punitive damages. Given the evidentiary issues raised in Defendant’s MIL Nos. 9 and 10, the Court encourages the parties to consider entering into such a stipulation in this case.

Defendants’ MIL No. 2 to preclude reference to the recent Eaton or Palisades Fires: This MIL is granted because the probative value of such references is substantially outweighed by the probability that its admission will create substantial danger of undue prejudice, confusing the issues, and misleading the jury. While reference to the two recent fires is not permitted during the trial, both parties may ask questions about the Palisades and Eaton fires during voir dire.

Defendants’ MIL No. 3 to preclude reference to any fires that are not part of the subject building is denied. This MIL is not specific enough for the Court to make a meaningful order.  The motion fails to identify what specific evidence the moving party seeks to exclude.  As such, the motion in limine also fails to comply with Local Rule 3.57.  (CA R LOS ANGELES SUPER CT Rule 3.57(a)(1) [“Motions made for the purpose of precluding the mention or display of inadmissible and prejudicial matter in the presence of the jury must be accompanied by a declaration that includes the following: (1) Specific identification of the matter alleged to be inadmissible and prejudicial.”].)  Instead of identifying the specific evidence that the motion seeks to exclude, this motion in limine amounts to little more than a restatement of the law and general legal principles.  The moving party fails to demonstrate that there are no circumstances which would permit admission of evidence of “any fires.”  The Court declines to rule on this motion in limine in a vacuum. 

Plaintiffs’ opposition argues they should be permitted to introduce evidence of the May 2020 smoke shop fire in downtown Los Angeles and the 2016 Oakland Ghost Ship fire. To the extent these are the “any fires” Defendants vaguely referenced in their MIL, the Court has weighed the probative value of such evidence against the danger of undue prejudice and risk of necessitating undue consumption of time.  The Court has determined that the probative value of such evidence is not substantially outweighed by the probability that its admission will necessitate undue consumption of time or create substantial danger of undue prejudice, confusing the issues, or misleading the jury.  (EV. CODE § 352.) 

Accordingly, the motion in limine is DENIED.  The moving party may at trial assert an objection to the introduction of specific evidence if and when this issue arises.

Defendants’ MIL No. 4 to preclude reference to or evidence of any accusations or convictions of tenant Tamur Rajput is DENIED. The Court has weighed the probative value of such evidence against the danger of undue prejudice and risk of necessitating undue consumption of time.  The Court has determined that the probative value of such evidence is not substantially outweighed by the probability that its admission will necessitate undue consumption of time or create substantial danger of undue prejudice, confusing the issues, or misleading the jury.  (EV. CODE § 352.)  Notwithstanding the denial of this motion in limine, the moving party may renew the objection to the introduction of this evidence at trial, and the Court will rule on the evidentiary objection anew in the context of the other evidence that is presented at trial.

Defendants’ MIL No. 5 to preclude reference to any citations omitted after the subject fire on June 8, 2021: Plaintiffs do not oppose Defendants’ request but argue they should be able to make reference to the fire safety and building codes in effect before June 8, 2021. The Court construes Defendants’ MIL as seeking an order precluding only introduction of any citations issued after June 8, 2021. This unopposed MIL is granted. Both parties may make reference to or argue regarding the fire safety and building codes in place prior to the Juen 8. 2021 fire.

Defendants’ MIL No. 6 to enforce the exculpatory provisions of Section 10 of the leases is denied. This is not a motion in limine as it does not seek exclusion or limitation of any evidence.  The Court, however, will consider the position taken when the jury instructions are assembled and/or at the conclusion of the presentation of evidence.

Defendants’ MIL No. 7 to exclude reference of any cumulative testimony by Plaintiff’s expert, Kevin Anderson, is denied. The motion in limine here is not specific enough for the Court to make a meaningful order.  The motion fails to identify what specific testimony by Anderson that Defendants seek to exclude. Moreover, Anderson’s expert testimony regarding Plaintiffs’ damages is relevant and not outweighed by the probability that its admission will necessitate undue consumption of time or create substantial danger of undue prejudice, confusing the issues, or misleading the jury.  (EV. CODE § 352.)  Notwithstanding the denial of this motion in limine, the moving party may renew the objection to the introduction of this evidence at trial, and the Court will rule on the evidentiary objection anew in the context of the other evidence that is presented at trial.

Defendants’ MIL No. 8 to preclude any usage of hearsay evidence regarding the alleged monetary value of Plaintiffs’ property loss as the basis for expert opinion is denied.  Defendants have failed to identify any anticipated testimony from any particular expert – either from an expert’s deposition transcript or otherwise -- that relays case specific out of-court statements and treats the content of those statements as true and accurate.  As such, Defendants have failed to identify any specific evidence that the Court should order excluded at this juncture on the basis of People v. Sanchez (2016) 63 Cal.4th 665. For the same reasons stated in Kelly v. New West Federal Savings, (1996) 49 Cal.App.4th 659, Defendants’ MIL No. 8 is not specific enough for the Court to make a meaningful order, and the motion in limine also fails to comply with Local Rule 3.57.

Defendants’ MIL No. 9 to preclude any insurance payments received by Defendants is deferred. Plaintiffs oppose this MIL, as well as MIL No. 10, on the grounds that insurance payments received by Defendants is relevant to determining Defendants’ net worth when assessing punitive damages. The Court agrees that such evidence is not admissible other than for determining Defendants’ net worth in connection with considering the amount of punitive damages to award. As noted in the ruling on MIL No. 1, the Court encourages the parties to consider bifurcating liability for punitive damages from the amount of punitive damages. If the amount of punitive damages is bifurcated to a second phase, insurance payments received by Defendants would be excluded from the first liability phase of the trial and permitted at the second phase.

Defendants’ MIL No. 10 to preclude reference to any loans on the property being paid off with insurance proceeds is deferred. See the tentative ruling for No. 9, above.

Defendants’ MIL No. 11 to exclude refence to or evidence of the replacement value of Plaintiffs’ alleged property loss is denied. The motion in limine here is not specific enough for the Court to make a meaningful order.  The motion fails to identify what specific evidence the moving party seeks to exclude.  As such, the motion in limine also fails to comply with Local Rule 3.57. The moving party may at trial assert an objection to the introduction of specific evidence if and when this issue arises.

Defendants’ MIL No. 12 to preclude reference to the death of Plaintiff Emily Dobbs’ parents in a plane crash is denied. The Court has weighed the probative value of such evidence against the danger of undue prejudice and risk of necessitating undue consumption of time.  The Court has determined that the probative value of such evidence is not substantially outweighed by the probability that its admission will necessitate undue consumption of time or create substantial danger of undue prejudice, confusing the issues, or misleading the jury.  (EV. CODE § 352.)  Notwithstanding the denial of this motion in limine, the moving party may renew the objection to the introduction of this evidence at trial, and the Court will rule on the evidentiary objection anew in the context of the other evidence that is presented at trial.

Defendants’ MIL No. 13 to preclude any recovery for emotional distress where alleged damages solely concern property loss is denied.

This is not a traditional motion in limine in that it does not seek exclusion or limitation of any evidence.  Instead, the moving party is seeking to preclude the non-moving party from pursuing recovery for emotional distress.  In essence, the moving party is arguing that the non-moving party should not be permitted to raise the issue because it is unmeritorious as a matter of law.  This is an improper use of a motion in limine.  As noted in Blanks v. Seyfarth Shaw LLP:

What in limine motions are not designed to do is to replace the dispositive motions prescribed by the Code of Civil Procedure.” (Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1593, 71 Cal.Rptr.3d 361.) Although trial courts may exercise their inherent powers to permit non-traditional uses of motions in limine (id. at p. 1595, 71 Cal.Rptr.3d 361)²⁴, when used in such fashion they become substitutes for other motions, such as summary judgment motions, thereby circumventing “procedural protections provided by the statutory motions or by trial on the merits; they risk blindsiding the nonmoving party; and, in some cases, they could infringe a litigant's right to a jury trial. (Cal. Const., art. I, § 16.)” (Amtower v. Photon Dynamics, Inc., supra, at p. 1594, 71 Cal.Rptr.3d 361.)

(Blanks v. Seyfarth Shaw LLP (2009) 171 Cal.App.4th 336, 375–376.)  The Court declines to rule on this MIL as it seeks relief that Defendants should have sought by way of dispositive motions with the procedural protections provided under the CCP.  (See also CA R LOS ANGELES SUPER CT Rule 3.57(b) [“[a] motion in limine may not be used for the purpose of seeking summary judgment or the summary adjudication of an issue or issues. Those motions may only be made in compliance with Code of Civil Procedure section 437c and applicable court rules..”,)  The Court, however, will consider the position taken when the jury instructions are assembled.

Defendants’ MIL No. 14 to preclude reference to insurance in any and all exhibits is denied. First, the motion is not specific enough for the Court to make a meaningful order.  The motion fails to identify what specific exhibits or testimony the moving party seeks to exclude.  As such, the motion in limine also fails to comply with Local Rule 3.57.  (CA R LOS ANGELES SUPER CT Rule 3.57(a)(1) [“Motions made for the purpose of precluding the mention or display of inadmissible and prejudicial matter in the presence of the jury must be accompanied by a declaration that includes the following: (1) Specific identification of the matter alleged to be inadmissible and prejudicial.”].)  Second, reference to insurance could be relevant to Defendants’ negligence and also Defendants’ net worth in connection with the punitive damages phase. Notwithstanding the denial of this motion in limine, the moving party may renew the objection to the introduction of this evidence at trial, and the Court will rule on the evidentiary objection anew in the context of the other evidence that is presented at trial.

Defendants’ MIL No. 15 to exclude any evidence of Plaintiffs’ past loss earnings as well as future loss of income claims is denied because it is not consistent with Plaintiffs’ discovery responses.

Defendants’ MIL No. 16 to preclude the opinions of Gary Kitchen on the grounds that the proper measure of damages in this case is “fair market value” and not “replacement value,” and Kitchen’s analysis is based on replacement value is deferred for further argument.

Generally, the appropriate measure of damages for loss of personal property is fair market value, not replacement value. CACI 3903K; Hand Elecs., Inc. v. Snowline Joint Unified Sch. Dist. (1994) 21 Cal. App. 4th 862, 871 (holding that fair market value is the correct measure of damages and cost of replacement is not a proper measure of damages for injury to personal property). Plaintiff argues that the “fair market value” approach is not the appropriate measure of damages for valuing intangible assets such as the source code for custom computer software lost by Plaintiff Au. The California Supreme Court has determined that, for purposes of taxation, “intangible property is defined as including personal property that is not itself intrinsically valuable, but that derives its value from what it represents or evidences.” Navistar Internat. Transportation Corp. v. State Bd. of Equalization (1994) 8 Cal. 4th 868, 875. Assuming that Au’s lost source code constitutes an intangible asset based on this definition, the issue is whether Kitchen’s replacement cost approach (the amount of time it would take for Au to recreate the source code) for valuing Au’s damages is appropriate given that generally the replacement cost approach is not appropriate for personal property cases.

Defendants’ MIL No. 17 to preclude the opinions of Elizabeth Estervig on the grounds that the proper measure of damages in this case is “fair market value” and not “replacement value,” and Estervig’s analysis is based on replacement value is denied. Estervig’s declaration states that she is opining about the fair market value of Plaintiff Jennifer Newman’s costumes. Her opinions therefore are based on the appropriate fair market value measure of damages.