Judge: Carolyn B. Kuhl, Case: 24STCV36960, Date: 2025-06-06 Tentative Ruling
Case Number: 24STCV36960 Hearing Date: June 6, 2025 Dept: 12
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
George Martin v. Equity Residential
22STCV36960
Dept. 12 SSC
Hon.
Carolyn B. Kuhl
PLAINTIFF’S MOTION IN LIMINE NO. 1 TO
EXCLUDE ANY MENTION OF PLAINTIFF’S UNRELATED AND PREEXISTING HEALTH CONDITIONS
Tentative
Ruling: The unopposed Motion is granted.
Plaintiff moves for
an order: (1) excluding any and all evidence, testimony, references,
insinuations, suggestions, accusations, argument or any mention of any kind
regarding Plaintiff’s unrelated and pre-existing health conditions; (2)
requiring the attorneys for all parties to instruct their witnesses of the
Court’s exclusionary order on this motion; and (3) requiring the attorneys for
Defendant, prior to making any references, comments, or assertions concerning
such matters, to approach the bench and make an offer of proof to the Court so
that the Court, prior to any presentation of the above-referenced evidence to
the jury, can make a preliminary determination of the relevancy and
admissibility thereof. Plaintiff argues
that (1) such evidence is irrelevant, and (2) the introduction of such evidence
would be misleading to the jury, would prejudice Plaintiff, and would waste
time at trial.
PLAINTIFF’S MOTION IN
LIMINE NO. 2 TO EXCLUDE EVIDENCE OF OR REFERENCE TO “ATTORNEY REFERRALS”
Tentative
Ruling: The Motion is granted as to cross-examination
of Plaintiff. However, the Motion is
denied as to cross-examination of treating physicians.
Plaintiff moves for an order excluding
any and all evidence, testimony, references, insinuations, suggestions,
accusations, and/or argument regarding attorney referral business practices or
“attorney referrals” to doctors in this matter.
Without explanation, Plaintiff argues that such evidence would “create a
substantial danger of undue prejudice or of misleading the jury.” (Pl’s Mot., at p. 3, internal quotation marks
and ellipses omitted.) Plaintiff also
argues that the evidence constitutes privileged attorney-client
communications.
Defendant opposes the Motion. Defendant contends that bias could be demonstrated
by the fact that Plaintiff will rely on “lien for hire doctors” to testify. (Def’s Opp., at p. 2.)
Defendant appears to argue that it
should be allowed to ask Plaintiff during cross-examination if Plaintiff’s
counsel referred any doctors to Plaintiff.
Defendant argues that evidence of such a referral is relevant to impeach
the testimony of the doctor. Defendant thus
intends to ask Plaintiff to testify as to his communications with counsel. The content of these communications is
privileged and need not be provided by Plaintiff in his testimony at trial.
However, Defendant also contends that it
“should not be precluded from cross-examining the medical providers and any
other expert witness Plaintiff calls to testify in this matter about their
potential bias.” (Def’s Opp., at p. 3.) If a treating physician has knowledge of how
Plaintiff was referred to that physician, then this knowledge would not
necessarily be a privileged attorney-client communication. Defendant is thus allowed to ask questions of
treating physicians regarding their potential biases and connections to
Plaintiff and Plaintiff’s counsel. Such
evidence could be relevant to the testifying physician’s credibility and
admissible at trial. As one federal
district court explained:
… evidence that a witness has a medical
lien or was referred by Plaintiff's counsel is relevant to show bias and to
challenge credibility. Evidence that a testifying medical provider holds a lien
is relevant to show that provider may have an interest in inflating bills or
testifying in favor of Plaintiff to ensure payment. [Citation.] Additionally,
“the existence of a regular referral relationship between a plaintiff's lawyer
and a testifying expert could impact that expert’s credibility.” [Citation.]
(Ruiz v. Walmart
Inc. (C.D. Cal., Oct. 28, 2021, No. CV 20-01129-RAO) 2021 WL 5759043, at *4,
internal citations omitted.)
PLAINTIFF’S MOTION IN LIMINE NO. 4 FOR
AN ORDER EXCLUDING SURVEILLANCE FOOTAGE TAKEN OF PLAINTIFF, OR IN THE
ALTERNATIVE, REQUIRING PRIOR PRODUCTION OF THE ENTIRETY OF THE SURVEILLANCE
FOOTAGE AND RELATED INFORMATION
Tentative Ruling: The
Motion is denied without prejudice, given that Plaintiff has failed to show
that the surveillance evidence was requested in formal discovery requests.
Plaintiff moves for an order excluding
any and all surveillance evidence taken of Plaintiff. Plaintiff appears to request that, in the
alternative, Defendant produce the entirety of the surveillance footage and
related information taken of Plaintiff.
Plaintiff claims that surveillance video of Plaintiff may have been
taken and not produced in the course of discovery. Plaintiff also claims that Defendant must be
ordered to produce the person(s) who conducted the surveillance and all
evidence of surveillance evidence so that Plaintiff can have the evidence
evaluated for improper video editing, video manipulation, or evidence
tampering. Plaintiff insists that
surveillance evidence is not protected by attorney-client privilege.
Plaintiff does not state that he
served discovery requests on Defendant that would have required Defendant to
produce evidence related to any surveillance videos.
Defendant opposes the Motion. Defendant insists that surveillance materials
are subject to attorney work product protections and are not discoverable. Defendant argues that impeachment evidence is
exempt from pretrial disclosure under California Rules of Court, rule 3.1548,
subdivision (b)(4). Finally, Defendant
argues that the Motion is improper because it attempts to exclude unidentified
evidence which Defendant hypothetically has and intends to use at trial.
Where a party refuses to produce
evidence that is responsive to a valid discovery requests served on that party,
the court may issue an evidentiary sanction preventing that party from later
presenting the withheld evidence at trial.
(See, e.g., Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1544.) Thus, if Plaintiff here has formally
requested the surveillance evidence in discovery, Defendant should not be
allowed to withhold such evidence and then submit it at trial. This conclusion holds if Defendant withheld
the surveillance evidence on grounds of work product protection. However, Plaintiff has failed to present any
evidence that a formal and valid discovery request seeking the surveillance
evidence was ever served on Defendant.
This court therefore cannot grant the Motion at this time.
The court notes that Defendant cannot withhold
responsive information pursuant to California Rules of Court, rule 3.1548,
subdivision (b)(4), only to later submit that evidence at trial. The
cited rule does not concern discovery responses or misuse of the discovery
process. Instead, it deals with pretrial
exchanges, such as a list of witnesses, or a list of depositions to be used at
trial. The rule requires the disclosure,
as a matter of course, of “[a] copy of any audiotapes, videotapes, digital
video discs (DVDs), compact discs (CDs), or other similar recorded materials
that the party intends to use at trial for evidentiary purposes, except
recorded materials to be used solely for impeachment or rebuttal and recorded
material intended to be used solely in closing argument … .” (Cal. Rules of Court, rule 3.1548, subd.
(b)(4), emphasis added.) The fact that materials
used solely for impeachment or rebuttal need not be provided under rule 3.1548
does not mean that a party may misuse the discovery process by refusing to
provide responsive evidence only to then present such withheld evidence to a
jury during trial.
DEFENDANT EQUITY RESIDENTIAL
MANAGEMENT, L.L.C.’S MOTION IN LIMINE NO. 1 FOR AN ORDER TO EXCLUDE EVIDENCE OF
THE PARTIES’ RESPECTIVE FINANCIAL CONDITION
Tentative Ruling: The court grants the unopposed Motion.
Defendant moves for an order
precluding Plaintiff from offering evidence, argument, or testimony regarding
the parties’ respective financial condition.
Defendant argues that evidence of financial condition is only admissible
during a punitive damages phase of trial.
Plaintiff has filed a “Non-Opposition” to the Motion.
“The court shall, on application of
any defendant, preclude the admission of evidence of that defendant's profits
or financial condition until after the trier of fact returns a verdict for
plaintiff awarding actual damages and finds that a defendant is guilty of
malice, oppression, or fraud in accordance with Section 3294. Evidence of
profit and financial condition shall be admissible only as to the defendant or
defendants found to be liable to the plaintiff and to be guilty of malice,
oppression, or fraud.” (Civ. Code, §
3295, subd. (d).)
DEFENDANT EQUITY RESIDENTIAL
MANAGEMENT, L.L.C.’S MOTION IN LIMINE NO. 2 TO EXCLUDE HEARSAY STATEMENTS FROM
UNIDENTIFIED EMPLOYEES
Tentative Ruling: The Motion is denied.
Defendant moves for an order to
exclude any evidence, argument, or testimony that Defendant had notice of any
alleged dangerous condition with respect to the window because Defendant sent a
maintenance employee to instruct Plaintiff how to open the windows in their
unit. Plaintiff testified at his
deposition that “someone from maintenance was in his unit fixing other things
before this incident and when Plaintiff asked him how to open the windows
because he was having a problem opening them, this unidentified individual
showed him how to open them.” (Def’s
Mot., at p. 1.) Defendant believes that
Plaintiff should not be able to testify that he discussed the windows with one
of Defendant’s maintenance workers because it is impossible to verify if
Plaintiff is telling the truth, given that there is no record of the
conversation, and because Plaintiff is unable to state the name of the
maintenance worker.
Defendant justifies its Motion on the
basis of hearsay, appearing to argue that the statements made by unidentified
maintenance workers cannot come in as evidence at trial. This argument fails because the relevant evidence
is Plaintiff’s recounting of his encounter with the maintenance worker;
the evidence does not come in in the form of statements made by the maintenance
workers that are submitted for the truth of the matters asserted by those
maintenance workers.
Defendant may be referring to
instructions by the maintenance worker regarding how to open the window. However, such instructions would not be
hearsay because they would not be offered at trial “to prove the truth of the
matter stated.” (Evid. Code, § 1200,
subd. (a).) The importance of the
instructions at trial is that Plaintiff will rely on them in an attempt to show
that (1) Defendant knew about the state of the window through its
agents/employees, and (2) Defendant’s agents/employees instructed Plaintiff how
to open the window. Plaintiff is not
presenting the evidence to show that the instructions were in some way “true.” As Defendant admits, the instructions are
meant to show that Defendant had notice of the window’s dangerous
condition.
DEFENDANT EQUITY RESIDENTIAL
MANAGEMENT, L.L.C.’S MOTION IN LIMINE NO. 3 TO PRECLUDE PLAINTIFF’S USE OF
IRRELEVANT AND PREJUDICIAL EVIDENCE OR ARGUMENT AT TRIAL REGARDING THE “REPTILE
THEORY” OR “REPTILE STRATEGY” OR THAT THIS ACTION WAS BROUGHT IN ORDER TO
ENHANCE PUBLIC SAFETY
Tentative Ruling: The motion is denied without prejudice. Defendant may make proper objections at
trial.
Defendant moves for an order to
prevent Plaintiff or any of Plaintiff’s witnesses from doing the following at
trial:
· Making any inquiry, comment or
argument that a verdict for the Plaintiff will make the community “safer”
because it will prevent Defendant or others similarly situated from harming the
jury, or individual juror’s family members and close relatives;
· Making any inquiry, comment or
argument that jurors should base their verdict on damages in an amount that the
jurors would themselves charge or seek to recover if they were to endure a
similar incident or comparable injuries;
· Making any inquiry, comment or
argument that the jury is obligated to “send a message” with its verdict or any
similar type verbiage or connotation;
· Making any argument that Plaintiff
purportedly brought this suit against Defendant in order to improve management
of properties or safety standards, or somehow to enhance safety with respect to
Defendant’s properties, or any similar statements;
· Pushing back against attempts at
so-called “tort reform”;
· From otherwise attempting to employ
the “Reptile Strategy” or invoking the “Reptile Theory” at trial.
Defendant relies on the fact that the
so-called “Golden Rule” argument is inadmissible in jury trials:
The only person whose pain and
suffering is relevant in calculating a general damage award is the plaintiff.
How others would feel if placed in the plaintiff's position is irrelevant. It
is improper, for example, for an attorney to ask jurors how much “they would
'charge' to undergo equivalent pain and suffering.” [Citation.] “This so-called
'golden rule' argument [citation] is impermissible.
(Loth v. Truck-A-Way Corp.
(1998) 60 Cal.App.4th 757, 764, internal citations and footnotes omitted.) “Defendant expects Plaintiff’s counsel will
attempt to utilize the Reptile strategy during voir dire, opening statements,
examination of witnesses and at closing argument in an effort to convince the
jurors they should find for the Plaintiff because to do so will make the
community safer by preventing the Defendant and/or others similarly situated
from harming the juror, the juror’s family or someone close to the juror.” (Def’s Mot., at p. 8.) Defendant argues that any argument that the
jury should “send a message” with their verdict is an improper invitation to
award punitive damages.
Plaintiff opposes the Motion. Plaintiff claims “that Defendant is
improperly attempting to suppress Plaintiff’s arguments and evidence to exclude
Defendant’s liability and responsibility by simply labeling all potential
avenues of showcasing Defendant’s responsibility as ‘Golden Rule’ and ‘Reptile’
type arguments.” (Pl’s Opp., at p.
3.) Plaintiff argues that Defendant’s
Motion is improper, since it does not identify any evidence it seeks to
exclude.
Defendant’s
speculation as to what might be said and in what context is far too indefinite
at this time to allow the court to craft relief by ruling on a motion in
limine. Motions in limine should not be
used to seek “rulings which would merely be declaratory of existing law or
would not provide any meaningful guidance for the parties or witnesses.” (Kelly v. New West Federal Savings
(1996) 49 Cal.App.4th 659, 670 (Kelly).)
Motions in limine must be accompanied by “factual support or argument [that
demonstrates] the nature and type of” evidence that the party seeks to exclude
at trial. (Id.) The court should not be left to guess as to
the type of evidence that will be excluded.
(Id.) The situation here
is similar to that described by the court in Kelly:
[U]ntil the evidence is actually
offered, and the court is aware of its relevance in context, its probative
value, and its potential for prejudice, matters related to the state of the
evidence at the time an objection is made, the court cannot intelligently rule
on admissibility.’ [Citation.] In these kinds of circumstances, an objection at
the time the evidence is offered serves to focus the issue and to protect the
record.”
(Id. at p. 671, internal
citations, quotation marks, and brackets omitted.)
DEFENDANT EQUITY RESIDENTIAL
MANAGEMENT, L.L.C.’S MOTION IN LIMINE NO. 4 TO PRECLUDE PLAINTIFF FROM
SUGGESTING A NON-ECONOMIC DAMAGE AWARD
Tentative Ruling: The Motion is denied.
Defendant moves for an order to
preclude Plaintiff from proposing or suggesting any specific amount or range as
an appropriate award for noneconomic damages during voir dire, opening
statements, trial or closing argument.
Defendant argues that allowing Plaintiff or his counsel to suggest a
particular level of damages unfairly invites an excessive award.
Plaintiff opposes the Motion. Plaintiff argues that he should be allowed to
inquire whether jurors would be opposed to awarding damages in personal injury
lawsuits. Plaintiff thus argues that
Defendant seeks to unduly restrict Plaintiff’s voir dire. Plaintiff further argues that he should be
able to allude to a particular amount of requested damages during opening
statement.
Neither
party has cited any controlling authority on the question presented. Almost sixty years ago our Supreme Court
stated: “It has long been a courtroom practice of attorneys in this state to
tell the jury the total amount of damages the plaintiff seeks, and no
questioning of the technique has come to our attention.” (Beagle v. Vasold (1966) 65 Cal.2d
166, 172 (Beagle).) “If the jury
must infer from what it sees and hears at the trial that a certain amount of
money is warranted as compensation for the plaintiff’s pain and suffering,
there is no justification for prohibiting counsel from making a similar
deduction in argument. An attorney is permitted to discuss all reasonable
inferences from the evidence.” (Id.
at p. 176.) The Court in Beagle thus
held that an attorney may suggest to the jury “that his client's damages for
pain and suffering be calculated on a ‘per diem’ basis … .” (Id. at p. 177.)
More
recently, the Second District Court of Appeal has concluded that counsel may raise
the issue of damages amounts when conducting voir dire. (Fernandez v. Jimenez (2019) 40 Cal.App.5th
482, 494.) The court, citing Beagle,
noted that “[j]urors may be informed of the damages a plaintiff seeks.” (Id.)
A practice guide further explains the scope of permissible questioning
during voir dire as follows:
Plaintiff's attorneys are usually
permitted to question prospective jurors as to their ability to return a large
verdict if supported by the evidence. (Some individuals may be incapable of
rendering a $1 million dollar verdict under any circumstances.)
For example, in a case involving a $1
million damage claim, plaintiffs' counsel may ask:
·
“Assuming
liability is established in this case, would you be able to return a verdict
for $1 million?”
·
—
“Would you require a higher standard of proof on liability in order to return
such a verdict?”
(Cal. Prac. Guide Civ. Trials &
Ev. (The Rutter Group) Ch. 5-G ¶ 5:312.)
Defendant’s
Motion must therefore be denied, as Defendant has failed to show that
California law categorically prevents Plaintiff’s counsel from discussing a
suggested damages award to the prospective jurors during voir dire or to the
jurors during argument. Of course,
Defendant may be able to state proper objections at trial regarding damages
amounts. During voir dire, counsel
cannot “ask for [a prospective juror’s] commitment” to award a certain amount
of damages. (Cal. Prac. Guide Civ.
Trials & Ev. (The Rutter Group) Ch. 5-G ¶ 5:326.) And, under Beagle, Plaintiff’s
counsel’s suggested damages amount must be based on reasonable inferences from
the evidence presented.
DEFENDANT EQUITY RESIDENTIAL
MANAGEMENT, L.L.C.’S MOTION IN LIMINE NO. 5 TO EXCLUDE EVIDENCE OF SUBSEQUENT
REPAIR/PRECAUTION/ACTION (SUBSEQUENT REMEDIAL MEASURE)
Tentative Ruling: The Motion is
granted.
Defendant moves for an order
precluding Plaintiff from offering or attempting to offer evidence or testimony
regarding any post-incident alterations to the subject window, or any other
subsequent remedial measures (or any conduct susceptible to being misconstrued
as a subsequent remedial measure) taken by Defendants based on Evidence Code §§
210, 350, 351, 352, and 1151.
The Motion must be granted under
Evidence Code section 1151 with respect to details regarding the replacement or
repair of the window. “When, after the
occurrence of an event, remedial or precautionary measures are taken, which, if
taken previously, would have tended to make the event less likely to occur,
evidence of such subsequent measures is inadmissible to prove negligence or
culpable conduct in connection with the event.”
(Evid. Code, § 1151.) Evidence
that Defendant repaired or replaced the window to remedy the allegedly
defective and dangerous condition of the window thus cannot be admitted at
trial.
Plaintiff opposes this Motion. Plaintiff contends that subsequent remedial
measures evidence is admissible (1) for impeachment purposes “to impeach a
witness who denies that the location of the accident was in a dangerous
condition when the accident occurred” (Pl’s Opp., at p. 2), (2) to show control
of the premises, (3) to show the feasibility of repairs, and (4) to show that
Defendant improperly spoliated evidence (i.e., the old window) when carrying
out repairs. Each of these four
arguments fails.
First, Plaintiff cannot present
otherwise inadmissible evidence by merely presenting it as “impeachment”
evidence. “An exception to the general
rule of inadmissibility recognized in California is that in appropriate
circumstances evidence of subsequent precautions or repairs may properly be
admitted when it tends to impeach the testimony of a witness.” (Pierce v. J. C. Penney Co. (1959) 167
Cal.App.2d 3, 7, emphasis added.) Here,
the “impeachment” of testimony is merely meant to directly prove
negligence. Admitting evidence for this
“impeachment” purpose would entirely vitiate section 1151.
Second, Plaintiff has failed to
demonstrate any need here to show that Defendant controlled the building that
it managed and leased to tenants like Plaintiff. There is no indication here that Defendant
will seek to negate its ability to control its building. Moreover, even if Defendant did so, Plaintiff
has failed to demonstrate that there would not be abundant alternative evidence
demonstrating such control.
Third, there is no reason to believe
there is a dispute regarding whether a building owner can feasibly repair a
window. (People v. Lockheed
Shipbuilding & Constr. Co. (1975) 50 Cal.App.3d Supp. 15, 36 [“this
exception is not applicable as such evidence should only be admitted if a
defendant declares that nothing could have been done to avoid the accident”].)
Finally, to the extent Plaintiff seeks
to raise spoliation at trial, spoliation could be demonstrated without
providing evidence regarding the repair, i.e., a window replacement need not
necessarily be a safety repair.
Moreover, it appears to be undisputed as a factual matter that Defendant
did not keep the window that allegedly caused Plaintiff’s harm; nothing is
added to a spoliation claim by presenting evidence that the original window was
disposed of because Defendant carried out remedial repairs.
DEFENDANT EQUITY RESIDENTIAL
MANAGEMENT, L.L.C.’S MOTION IN LIMINE NO. 6 TO EXCLUDE TESTIMONY FROM
PLAINTIFF’S EXPERT, DAVID J. TEETZ
Tentative Ruling: The Motion is granted in part as explained
below.
Defendant moves for an order to
exclude all evidence and testimony by Plaintiff’s expert, David Teetz. Defendant states that Teetz confirmed at
deposition that he performed no inspection of the subject window, performed no
testing of exemplar windows to determine the forces necessary to cause the
window to fail, and does not know the forces Plaintiff actually applied to the
window to cause it to fail. Defendant
thus argues that Teetz’s opinions lack adequate foundation, are speculative,
and that there is no scientific or engineering basis supporting them. Defendant faults Teetz for relying on
Plaintiff’s testimony as the relevant underlying facts.
Defendant asserts that Teetz has set
forth the following opinions in his expert report:
1. Due to its age, the window was
“most likely” in a degraded condition at the time of the subject incident
a. The AAMA A400 standard establishes
design requirements for loads applied to windows that generally requires that
large amounts of force be necessary to break windows
b. If the window could be “easily
broken” while being opened, it warranted replacement
c. The subject window was 18 years old
at the time of the incident, and warranted replacement
d. Defendant either failed to properly
inspect the window or chose not to replace it.
2. The condition of the window
constituted a fundamental hazard to anyone interacting with it
a. A window so fragile that it breaks
unintentionally while being opened constitutes a hazard
3. Defendant knew or should have known
the window needed replacement, as the industry standard is to replace “single
pane windows” every 15 years, and the subject window is well beyond that
4. Had Defendant replaced the window
in Plaintiff’s apartment, the incident would not have occurred.
(Def’s Mot., at p. 4.)
Plaintiff opposes the Motion. Plaintiff claims that Teetz “has conducted
force and load testing on windows approximately half a dozen times throughout
his career, with all examples involving double-pane windows, which are the same
type as the subject window.” (Pl’s Opp.,
at p. 2.) Plaintiff notes that Teetz has
reviewed video of the subject window. Plaintiff
argues that Teetz can rely on Plaintiff’s testimony.
“If a witness is testifying as an
expert, his testimony in the form of an opinion is limited to such an opinion
as is:
(a)
Related to a subject that is sufficiently beyond common experience that the
opinion of an expert would assist the trier of fact; and
(b)
Based on matter (including his special knowledge, skill, experience, training,
and education) perceived by or personally known to the witness or made known to
him at or before the hearing, whether or not admissible, that is of a type that
reasonably may be relied upon by an expert in forming an opinion upon the
subject to which his testimony relates, unless an expert is precluded by law
from using such matter as a basis for his opinion.”
(Evid. Code, § 801.)
“[T]he reasonableness of an expert’s
reliance is a question of degree, and may well vary with the circumstances.” (People ex rel. Dept. of Transp. v.
Clauser/Wells Partnership (2002) 95 Cal.App.4th 1066, 1085, internal
citations and quotation marks omitted.)
“Reliance on evidence of questionable reliability may be ‘reasonable’ if
it is the only evidence available.” (Cal.
Prac. Guide Civ. Trials & Ev. (The Rutter Group) Ch. 8C-H ¶ 8:743.)
“[A]n expert’s opinion based on
assumptions of fact without evidentiary support [citation], or on speculative
or conjectural factors [citation], has no evidentiary value [citation] and may
be excluded from evidence. [Citations.] Similarly, when an expert’s opinion is
purely conclusory because unaccompanied by a reasoned explanation connecting
the factual predicates to the ultimate conclusion, that opinion has no
evidentiary value because an expert opinion is worth no more than the reasons
upon which it rests.” (Jennings v.
Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117,
internal citations and quotation marks omitted.)
Teetz was not present at the time of
Plaintiff’s injury; nor has Teetz been able to inspect the window, given that
it was disposed of by Defendant.
Nevertheless, Teetz can provide testimony as to the window based on his review
of testimony and photographic evidence regarding the window. (See, e.g., Teetz Expert Report, Def’s Ex. C,
at p. 2 [“Images provided to me of the subject window provide [significant]
information concerning its type, age, size, and [manufacturer]”].) From this photographic evidence, Teetz is
able to conclude, for example, that the window was manufactured in 2002 and is
designated “H-R20-47x71.” (Teetz Expert
Report, Def’s Ex. C, at p. 3.)
Teetz is also able to properly testify
as to industry standards for the manufacture, maintenance, repair, inspection,
and operation of the type of window that allegedly caused Plaintiff’s harm. For example, Teetz can testify that, in order
to meet the AAMA design specifications, the subject window would have to
sustain more than 134 pounds of force before becoming damaged. (Teetz Expert Report, Def’s Ex. C, at p. 4.)
If the window in question were a
single-pane window, Teetz could properly testify that “it is a common industry
practice to have single pane windows replaced every 15-20 years.” (Teetz Expert Report, Def’s Ex. C, at p. 4.) However, the subject window is a double-pane
window. Teetz’s testimony as to
single-pane windows is thus irrelevant and inadmissible.
Certain conclusions reached by Teetz
are inadmissible because they are unaccompanied by a reasoned explanation. The
following conclusion is inadmissible here on this ground:
The condition of the window
constituted a fundamental hazard to anyone interacting with it.
a. A window that is fragile enough to
be broken unintentionally by a human trying to open it fundamentally
constitutes a hazard to the person attempting to open/close the window.
(Teetz Expert Report, Def’s Ex. C, at
p. 6.) The following legal conclusion is
also inadmissible: “The defendant knew or reasonably should have known that the
subject window needed replacement.”
(Teetz Expert Report, Def’s Ex. C, at p. 6.)
Finally,
the following conclusion is inadmissible, given that it is based on pure
speculation: “If the defendant had replaced the windows in the plaintiff's
apartment with newer AAMA compliant windows prior to the incident, as they did
after the incident, the incident would not have occurred.” (Teetz Expert Report, Def’s Ex. C, at p. 6.) This conclusion is also inadmissible under
Evidence Code section 1151 to the extent it claims that defendant replaced the
subject window with newer AAMA compliant windows after the incident.
DEFENDANT EQUITY RESIDENTIAL
MANAGEMENT, L.L.C.’S MOTION IN LIMINE NO. 7 TO EXCLUDE DOCUMENTS NOT DISCLOSED
DURING DISCOVERY
Tentative Ruling: The Motion is denied
without prejudice to Defendant raising appropriate objections at trial.
Defendant moves for an order precluding
Plaintiff from offering evidence that was not properly disclosed in
discovery. Defendant explains:
Discovery in this matter has been
closed since April 2024. Trial was then continued to March 11, 2025, with
discovery to remain closed. On March 7, 2025, only four days before trial,
Plaintiff’s counsel informed Defendant’s counsel that Plaintiff obtained
additional videos and photos related to the case the night before. According to
Plaintiff’s counsel’s e-mail, the videos were taken in late April/May 2021,
depicting the subject window, a window located in an adjacent room, and photos
of Plaintiff’s injuries.
(Def’s Mot., at p. 3.) Defendant claims that it “propounded numerous
discovery requests seeking information regarding Plaintiff’s injuries,
allegations of liability, claimed damages and evidence supporting his
contentions.” (Def’s Mot., at p.
5.) Defendant does not identify or
provide any of these discovery requests.
Thus, this court cannot now conclude that Plaintiff misused the
discovery process by failing to provide responsive evidence.