Judge Christopher K. Lui, Case Number: BC713530, Date: 2024-04-02 Tentative Ruling

With this motion, Defendant City of Los Angeles (“COLA”) seeks an order excluding:

Any evidence, theory of liability, claim of damages, causation, compaction opinions, compaction testing issues, statements, documents testified about, or documents generated by any City employee, including, but not limited to, Michael Crane, Jorge De La Torriente, Jason Stoeber, Christopher Alfieri, Gerald Watson, Belal Tamimi, and Richard Louie, as they are not qualified expert witness, nor do they hold a sufficiently high enough position of authority within the City of Los Angeles in order to bind it as a party admission.

In opposition to the motion, Plaintiff argues that the motion is too vague and overbroad, and misapplies the hearsay rule and its exceptions.

As an initial matter, the Court agrees with Plaintiff that the issue of whether an employee’s statement should be treated as an admission of the employer does not rely simply on whether the employees are “high ranking organizational agents,” (COLA Mot. in Lim. No. 1 at 3-4), but instead must be determined with reference to principles of agency law. As the Court of Appeal has stated:

The authority of a declarant employee to make a statement “for” an employer “concerning the subject matter of the statement” can be implied, as well as express. (See Jefferson, Benchbook § 3.4, p. 181.) For this reason the question of an employee's authorization to make a given statement can present a tricky problem for a trial court, because the determination necessarily depends on the particular facts and circumstances of each case viewed in the light of the substantive law of agency, as distinct from evidence.

(O’Mary v. Mitsubishi Elecs. America, Inc. (1997) 59 Cal.App.4th 563, 570.) This determination “requires an examination of the employee’s usual and customary authority, the nature of the statement in relation to that authority, and the particular relevance or purpose of the statement.” (Id.)

The instant motion describes the current or former job titles of the witnesses at issue, but does not describe the scope of their usual and customary job responsibilities or authority, or analyze how any of the statements attributed to them relate to the performance of their duties. As such, there is no basis for the Court to make a prospective, categorical finding that these employees’ statements are not party admissions of COLA. While Plaintiff will have to establish foundation at the time of trial, this is not a basis for an in limine exclusion. Indeed, to the extent that the deposition transcripts attached to the motion are representative of the testimony that might be offered at trial, it seems likely that Plaintiff will be able to lay foundation for the testimony, especially to the extent that the testimony consists of on-site observations and a narration of tasks performed.

With regard to COLA’s contention that Plaintiff seeks improper expert testimony from the witnesses, it appears that none of the witnesses were identified as experts by Plaintiff. This by itself precludes the examination of the witnesses as experts. Thus, to the extent that Plaintiff seeks to elicit any opinion testimony from the witnesses, such opinion testimony would be subject to the limitations of Evidence Code 800, in that the testimony would have to be based on matters perceived by the witness, and the opinions would have to be helpful to a clear understanding of their testimony.[1] While this restriction would likely preclude the witnesses from offering opinions or conclusions on things such as the ultimate issue of causation, opinions that help to clarify their observations or to explain their actions may well be permissible under Evidence Code section 800. However, the range of potential testimony is too broad to assess on the instant motion.

With this motion, COLA seeks an order precluding the admission of evidence of subsequent remedial measures. Specifically, the motion seeks to exclude evidence of and relating to a March 18, 2018 work order, No. SWC04335, which states in part, “Contractor is directed to re-compact the soil and repair the wall” at 4118 Colbath Ave., which the City ordered more than 13 months after the collapse of the concrete wall at issue in the case. COLA contends that the admission of evidence concerning the work order is barred by Evidence Code section 1151 (the general limitation on evidence of subsequent remedial measures) and Government Code section 830.5(b) (which bars evidence that action was taken after an injury on public property as proof that the public property was in a dangerous condition at the time of the injury).

Plaintiff contends that the documents attached to COLA’s motion are admissible as business records, that no work that could be described as “remedial measures” was completed, and that to the extent any of the evidence might fall within the scope of the subsequent remedial measures bar, the evidence is nevertheless admissible for other purposes, such as control of the location by COLA, and COLA’s notice or knowledge of damage, which may be relevant to causation. Plaintiff argues that the evidence is probative of COLA’s duty to repair the damaged wall.

In reply, COLA contends that the issue of control of the premises is not disputed, and that the potential prejudice from admission of the disputed evidence would significantly outweigh the probative value. COLA also contends that Plaintiff’s argument that no repair work was done, so no subsequent remedial measure took place, is nonsensical, because the generation of the disputed work order and associated tasks is itself a remedial measure.

The Court agrees with COLA. Regardless of whether the documents that Plaintiff describes as business records would be admissible under a hearsay exception, hearsay is only one hurdle.[2] The public policy exclusions of Evidence Code section 1151 and Government Code section 830.5 require separate consideration. To the extent that the COLA concedes control of the easement, there is no need for evidence to prove control. The fact that no repair work ultimately took place does not mean that the preparations or plans (including work orders) to conduct such work are not subsequent remedial measures, or that no “action” within the meaning of Government Code section 830.5 took place.

With motion in limine number 5, COLA seeks an order excluding Plaintiff’s experts from testifying based on soil compaction testing by Keith Tucker that was performed in 2019—four years after the completion of sewer repair work. According to COLA, the testing was conducted at an inappropriate location relative to the sewer repair, is too remote in time to be relevant or to provide an adequate foundation for other expert testimony.

In opposition, Plaintiffs contend that the motion is procedurally defective (i.e., that it is a disguised motion for summary judgment, with insufficient prefiling meet and confer), impermissibly overbroad, and that to the extent COLA seeks an Evidence Code section 402 hearing, the motion gives an insufficient basis for setting a hearing. Plaintiffs contend that they and their experts complied with all obligations regarding expert discovery.

The Court has a gatekeeper function to ensure that speculative or irrelevant expert opinion is kept out of trial proceedings. (Evid. C. § 402(b); Sargon Enters. v. University of S. Cal. (2012) 55 Cal.4th 747, 770.) However, a court is not required to exercise this responsibility in the absence of a valid objection by a party. (In re Powell (1988) 45 Cal.3d 894, 905-06.)

[u]nder Evidence Code sections 801, subdivision (b), and 802, the trial court acts as a gatekeeper to exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or 3) speculative. Other provisions of law, including decisional law, may also provide reasons for excluding expert opinion testimony.

But courts must also be cautious in excluding expert testimony. The trial court's gatekeeping role does not involve choosing between competing expert opinions. The high court warned that the gatekeeper's focus “must be solely on principles and methodology, not on the conclusions that they generate.” (Daubert v. Merrell Dow Pharmaceuticals, Inc., supra, 509 U.S. at p. 595, 113 S.Ct. 2786.)

COLA’s motion does not describe an adequate basis for either exclusion of the challenged expert testimony, or even for the setting of a Sargon hearing. COLA does not provide any declaration of its own expert setting forth a basis for the Court to conclude (or even to suspect) that the soil compaction testing by Tucker is material on which experts in the field would not reasonably rely, that opinions drawn from the testing are not supported by the test data, or that the results of the testing would be speculative. Nor does COLA present the Court with any basis in case law, scientific literature, or some other relevant source material that would support a Sargon challenge. The sole support for the motion is a declaration of counsel, which is not sufficient under these circumstances.

[1] COLA’s motion is also directed at excluding documents obtained from current or former COLA employees. The same limitations on opinion testimony would apply to opinions contained in documents. (See Hutton v. Brookside Hospital (1963) 213 Cal.App.2d 350, 355 (holding that contents of a document are not admissible if they would be inadmissible via oral testimony.).)

[2] Since the materials at issue are COLA documents, that carry the City seal, the applicable hearsay analysis is more likely the official records exception, Evidence Code section 1280, rather than the business records exception. In this case, the distinction is not important since other barriers to admissibility exist.