Judge David J. Cowan, Case Number: 19STCV01820, Date: 2023-08-30 Tentative Ruling

Judge: David J. Cowan, Case: 19STCV01820, Date: 2023-08-30 Tentative Ruling

Case Number: 19STCV01820 Hearing Date: January 8, 2024 Dept: 200

LOS ANGELES SUPERIOR COURT – WEST DISTRICT

BEVERLY HILLS COURTHOUSE – DEPT. 200

TENTATIVE RULINGS ON (1) REMAINING SET OF MOTIONS IN LIMINE, (2) OBJECTION TO NOTICE TO PRODUCE INCIDENT REPORT AT TRIAL AND (3) ADMISSIBILITY OF PHOTO TO BE SUBJECT TO AN EVID. CODE SEC. 402 HEARING

Edna Beteta v. LNR Partners, et al., and related cross-complaints, Case No. 19STCV01820

Hearing Date: January 8, 2024, 8:30 a.m.

1. MOTIONS IN LIMINE

Plaintiff’s Motion in Limine No. 4:

Re: Impeachment of Plaintiff’s deposition testimony with record of auto claim

Denied.

Plaintiff’s Motion in Limine No. 5:

Re: Avoidable consequences rule not on point. No showing anything avoided by going to health insurance for medical assistance. Pebley v. Santa Clara Organics (2018) 22 Cal.App.5^th 1266 on point re: Plaintiff electing how treated.

Granted.

Plaintiff’s Motion in Limine No. 10:

Re: Dentist Jessica Lizana’s expert opinion. However, she can still testify to observations as percipient witness.

Granted.

USFP’s Motion in Limine No. 1:

Re: Excessive number of non-retained medical expert witnesses. No opposition filed. Need to identify specific witnesses, per LASC Rule 3.57.

Granted.

Prime’s Motion in Limine No. 1:

Re: Stating dollar figure for damages during voir dire

Denied.

Prime’s Motion in Limine No. 2:

Re: Comments by Sifuentes re: mgm’t of project

Denied.

Prime’s Motion in Limine No. 4:

Re: Testimony of Solomon as to role of general contractor as outside designation

Granted.

Prime’s Motion in Limine No. 5:

Re: Indemnity agreements between Prime and G & E

Granted. Irrelevant to liability.

Prime’s Motion in Limine No. 7:

Re: Walter Prince e-mail to G & E

Granted. Hearsay.

Prime’s Motion in Limine No. 9:

Re: Lost earnings / earning capacity. No opposition except as relevant to general damages

Granted.

G & E’s Motion in Limine No. 3:

Re: statement by Plaintiff’s former counsel at deposition that Plaintiff was not seeking general damages or for emotional distress

Denied. Statement is contradicted by later response to form interrogatories. No stipulation to not seeking these damages. Moving party’s remedy was to have moved to compel further testimony at deposition or for order precluding recovery of damages.

G & E’s Motion in Limine No. 4:

Re: Arguments premised on Reptilian theory and or Golden Rule

Denied. A motion in limine is to exclude evidence. No specific evidence sought to be excluded. That said, counsel should not appeal to jurors’ self-interest.

G & E’s Motion in Limine No. 6:

Re: Request for spoliation instruction re: social media accounts

Denied. Again, this is not a motion to exclude evidence. Regardless, insufficient evidence of purposeful concealment of Facebook account or Instagram postings to warrant negative inference. Remedy would have been to move to compel answer at deposition.

G & E’s Motion in Limine No. 7:

Re: adverse inference instruction for suppression of evidence re: March 18, 2017 auto accident

Denied. ISO record inadmissible. Moreover, even if offered to impeach, does not make clear that Plaintiff was in an accident and states merely: “falling object struck.” Unclear if this was accident which would make deposition testimony untruthful.

G & E’s Motion in Limine No. 8:

Re: Unpaid medical expenses / special damages

Denied. The document requests did not specifically request lien agreements. Even if agreements were deemed to be included in requests, G & E could have moved to compel further production. Even if motion is not required, it appears G & E secured from three providers. Not clear that Plaintiff required to submit agreements with other providers to meet her burden of establishing cost of services. That counsel also signed agreements – given role in dispensing recovery to client – does not mean Plaintiff had not “incurred” liability for expenses. Unclear why Evid. Code sec. 402 hearing is needed.

G & E’s Motion in Limine No. 9:

Re: Adverse inference instruction re: non-disclosure of 2012 auto accident, July 7, 2015 slip & fall, and 2015 workers’ compensation claim for carpel tunnel injury to right arm and shoulder

Denied. Plaintiff disclosed the 2012 auto accident and did not disclose other claims because was not responsive to requests for claims related to head and neck that are at issue here. Even if slip and fall was due to same vertigo claimed after accident at issue here, injury was to ankle and hence why not mentioned. Insufficient evidence to substantiate “willful” suppression of evidence. Defendants can still cross-examine Plaintiff and doctors concerning these matters.

G & E’s Motion in Limine No. 10:

Re: Qualifications of Plaintiff’s standard of care expert Philip Rosescu

Per the ruling on November 8, 2023, at the hearing on similar motions of other defendants on this issue, this is continued to trial.

G & E’s Motion in Limine No. 11:

Re: Jessica Lizana’s contacts with mall management

No opposition filed. However, issues of alleged bias and lack of personal knowledge can be addressed by cross-examination or objections to questions at trial. The Court does not see any significant prejudice to Moving parties that requires a ruling before trial or matter that would make all testimony of this witness inadmissible. Denied.

WBCMT’s Motion in Limine No. 3:

Re: Failure of Wendy Maravilla, Jessica Lizana’s assistant, to appear for deposition.

Denied. Not fault of Plaintiff. Witness not under control of Plaintiff. That Plaintiff seeks to call her as witness does not mean Plaintiff had to make her available for deposition.

2. Objection by Prime to production of incident report at trial:

Overruled. That did not move to compel during discovery not dispositive. Report was for management company, not counsel. Not in anticipation of litigation where none suspected. No evidence it was privileged or attorney work product.

3. Ruling in advance of Evid. Code sec. 402 hearing as to admissibility of photograph of square plates with attached circular pipes

Prior to the November 8, 2023 hearing on the motion in limine of Owner to exclude this photo, the Court issued a tentative ruling to grant the motion, finding in summary that the deposition testimony of Susan Hill was insufficient foundation that the object in the photo was what fell on Plaintiff. Hill had not taken the photo, did not know who took the photo or how she received it and was not herself present on the day of the accident to have any personal knowledge as to whether the item in the photo was what fell on Plaintiff.

Hill appeared to have relied on John Anderson, the general contractor’s on-site superintendent; however, he testified that he did not know who took the photo either.

Likewise, the deposition testimony of Gabriel Hernandez, the principal of the general contractor, did not provide sufficient connection between the object in the photo and what fell.

At the motion hearing Plaintiff argued, however, that she could offer other evidence to lay the necessary foundation. The Court therefore denied the motion, without prejudice, and instead set a briefing schedule in advance of an Evid. Code sec. 402 hearing as to the disputed foundational evidence.

The Court has reviewed the further papers filed by Plaintiff, the responsive papers filed by all four Defendants, the reply papers of Plaintiff and finally the objection to the evidence offered in the reply.

The court sustains the objection to Plaintiff’s use of a defense expert’s testimony in the reply. This evidence could have been presented as part of Plaintiff’s initial response so Defendants could address in their responding papers.

The photo is indisputably an important document. If what is depicted fell on someone’s head, a juror might well believe that would inflict significant injury. Defendants argue under Evid. Code sec. 352 that its probative value is outweighed by its likely prejudicial effect.

It appears there is sufficient other deposition testimony - which was not part of what was filed with the initial motion and opposition papers - to warrant the Court receiving the photo into evidence:

Plaintiff testified at her deposition that the object in the photo was what fell on her. It does not matter for foundation purposes that she does not know who took the photo. A writing can be authenticated by circumstantial evidence and by its contents. (People v. Goldsmith (2014) 59 Cal.4th 258, 267-268, People v. Skiles (2011) 51 Cal.4th 1178, 1187) She is not required to have taken it herself. It is not required at least for these purposes that she does not know if it was this precise object in the photo that fell on her or one like it. Defendants can still cross-examine Plaintiff to put the photo into context.

The primary focus of the papers filed concerned the conflict between, on the one hand, the recent November 2023 declaration of Daniel Sifuentes stating “unequivocally” that the objects in the photo was what fell on Plaintiff and, on the other hand, his deposition testimony from January 2022, during which he stated he did not recognize the square plates in the photo and that the circular item that hit him weighed no more than a pound. The Court sustains the hearsay objection to the declaration. However, it is not clear if the Court needs to hear from Sifuentes on this issue or for him to be subject to cross-examination so the Court can hear his further testimony. There is enough other foundational evidence on which to admit the photo:

Narbik Bandary testified both that he was doing pipe demolition but also that what he was working on were just plates, not as in the photo a plate with pipes. He denied that the object in the photo was what fell on Plaintiff and believes that this object was from elsewhere at the mall. Like Sifuentes, he testified that it was just the plate that would have hit her. However, he still identifies what is in the photo as items that he was working on - even if he denied the plate fell with pipe attached. Similarly, Anderson also corroborated the work with the pipes that are shown in the photo.

The Court finds that even without Sifuentes’ testimony, Bandary, Anderson and Plaintiff still provide sufficient surrounding corroborating context to receive the photo into evidence. The inconsistencies Defendants raise go to the weight the jury should give the photo. Defendants can still argue that what fell on Plaintiff was just a plate and not the attached pipe, or a group of plates as in the photo. The jury can then decide the conflicting testimony about what may have fallen on Plaintiff. In the interim, the photo will show the jury what sort of work was being performed at the time. The Court rejects the argument under Evid. Code sec. 352 that potential undue prejudice outweighs its probative value.

DATED: _________________________________

DAVID J. COWAN

Judge of the Superior Court