Judge David J. Cowan, Case Number: KC070323, Date: 2023-11-09 Tentative Ruling

TENTATIVE RULINGS ON MOTIONS IN LIMINE OF PLAINTFFS AND OF DEFENDANTS, ON DEFENDANTS’ MOTION TO BIFURCATE AND ON OBJECTIONS OF PLAINTIFFS AND DEFENDANTS TO CERTAIN PROPOSED JURY INSTRUCTIONS

By this motion, Plaintiffs seek to exclude improper character evidence, pursuant to Evidence Code sec. 1101, and matters protected by the Constitutional right of privacy. They point to the following potential concerns they believe Defendants will improperly seek to introduce to thereby taint the jury: drinking problems, drug use, unemployment, bankruptcy, collection of benefits, race, marital status, psychiatric treatment or sexual history. Plaintiffs believe that by seeking recovery for emotional distress arising from the conditions Defendants caused at the park they should not thereby expose themselves to inquiry into their private lives.

In their opposition, Defendants argue Plaintiffs are seeking to exclude more than is what is properly “character” evidence, i.e., that which relates to a person’s tendency to act one way or another. In addition, while remote instances of certain of the foregoing matters is likely irrelevant, more recent instances of certain of the above-referenced matters that are unrelated to issues at the park may also be a cause in whole or part of a person’s emotional distress and they therefore they should be allowed to inquire into those areas. Privacy is not an absolute prohibition against legitimate inquiry but must be balanced against a party’s need to determine the truth in the context of a trial. (Britt v. Sup. Ct. (1978) 20 Cal.3d 844, 855) They also reassure the Court that they do not now believe they have reason to address these areas, except perhaps as far as employment or ability to pay rent as potential causes of emotional distress.

LASC Local Rule 3.57(a)(1) requires a motion in limine to include “[s]pecific identification of the matter alleged to be inadmissible and prejudicial.” Here, a broad order prohibiting introduction of character evidence does not meet that requirement. The Court can address this concern if or when this issue arises by way of hearing an objection. Similarly, areas as to which there may be rights encompass a variety of areas that the Court cannot make a ruling concerning broadly without knowing the context. That context may provide a valid conflicting need to hear about a concern that might otherwise be private. Since this concern is not tied to a particular issue, there is no reason the Court must now make a ruling.

By this motion, Plaintiffs seek to exclude evidence of insurance or other collateral sources of payment.

By this motion, Plaintiffs seek to exclude evidence of felony convictions, arrests, incarcerations, and misdemeanor convictions as irrelevant. Specifically, they argue felony convictions more than ten years ago are too remote in time, even if otherwise permissible under Evid. Code sec. 788.

In their opposition, Defendants indicate they had already stipulated to this exclusion, with the exception of felony convictions for dishonest crimes.

GRANTED IN PART. DENIED WITHOUT PREJUDICE AS TO FELONIES PERTAINING TO FELONY CONVICTIONS THAT MAY GO TO THE TRUTHFULNESS OF A WITNESS

By this motion, Plaintiffs seek to exclude any evidence or argument that Defendants could not afford to properly maintain the park. They contend that inability to afford to make repairs cannot be a defense to a habitability or nuisance cause of action, citing Knight v. Hallsthammer (1981) 29 Cal.3d 46.

In their opposition, Defendants argue that even if this may be the rule for a nuisance cause of action, ability to afford repairs may be a permissible impracticability or impossibility defense to a cause of action for breach of contract or part of the considerations for the propriety of a business decision that is put in question by the cause of action for unfair business practices.

Where more than the cause of action for nuisance is before the jury, Defendants have a right to present evidence concerning the costs to make the repairs in question. As discussed below, however, by doing so, they may open the door to allow Plaintiffs to put on evidence as to Defendants’ income from the park or their financial condition.

By this motion, Plaintiffs seek to exclude Defendants’ photographs and videos which reflect “bad housekeeping” in or outside Plaintiffs’ homes as irrelevant and more prejudicial than probative. In the alternative, they request that they be shown any such photographs before they are presented to the jury as part of an opening statement.

In their opposition, Defendants indicate they cannot respond to the motion without knowing what photographs or videos are at issue. In turn, they contend photographs taken by their appraiser, Scott Delahooke, are relevant to showing the condition of the homes which is at issue in determining the market value of any reimbursement to which Plaintiffs may be entitled. In addition, Defendants’ electrician expert, Walter Lane, took photographs of homes where several appliances were plugged into an outlet by way of extension cords or power strips – that is relevant to explaining the complaints concerning electric power or overloaded brakers. Finally, defendants commit to exchanging all photos prior to trial and therefore Plaintiffs will have an opportunity to object to [articular photos or videos.

The motion is too broad in seeking to exclude photos and videos that are not identified. (LASC Local Rule 3.57(a)(1)) Defendants provide reasons why certain photos or videos that may reveal “bad housekeeping” would be relevant. The Court will need to see the photos or videos in question to determine if they unnecessarily show how plaintiffs may keep their home, as well as other photos that may achieve the same purpose without also raising this concern. Defendants shall disclose to Plaintiffs what photos or videos they intend to show the jury in an opening statement prior to commencement of trial.

By this motion, Plaintiffs seek to exclude evidence of a person’s citizenship, immigration status or country of origin.

By this motion, Plaintiffs seek to exclude the use and admissibility of medical records.

By this motion, Plaintiffs seek to exclude Defendants’ experts who are duplicative of other experts, and specifically, Lonnie Haughton, pursuant to Evid. Code sec. 723, as well as from testifying as to inappropriate matters.

GRANTED IN PART AS TO HAUGHTON. DENIED, WITHOUT PREJUDICE, AS TO UNIDENTIFIED “INAPPROPRIATE” MATTERS, PER LASC Local Rule 3.57(a)(1)

The thirty-three plaintiffs in this case bring a tenth cause of action for fraud against MZL Properties (“MZL”), the management company for the prior owner of the Mobile Home Park, Martin B. Goldman, successor trustee of the David and Esther Weiswasser 2005 Trust (“Trust”) (which was the owner until October 2016), as well as against Trust,[1] for allegedly not disclosing an easement overlying part of the Park prior to buying their mobile homes and entering into leases for use of space to place the homes. By this motion, MZL seeks an order excluding any evidence that those eighteen plaintiffs who purchased their mobile homes from third persons, i.e., as opposed to directly from Trust (”Sales Fraud Claimants”), did not buy their homes from MZL or that MZL approved the sales – which would be inconsistent with their admission at their depositions that they did not communicate with MZL prior to buying their homes and occupying the spaces.

Plaintiffs oppose the motion on the basis that first, that this is a disguised motion for summary judgment and hence improper and second, on the merits, that it does not matter if third persons sold the homes to these plaintiffs because the plaintiffs still entered into lease agreements with MZL. Plaintiffs allege fraud not just in purchase of their homes (at least those who purchased their homes from Trust), but also in entering into lease agreements for use of the space to place the homes. Hence, even if Sales Fraud Claimants did not rely on MZL personnel when buying their homes this is not to say they did not rely on statements or omissions by MZL in connection with the lease agreements. Plaintiffs contend they would have relied on the statements MZL was required under Civil Code sec. 978.75.5 (the Mobile Home Residency Law (“MRL”)) to have provided at least three days before entering into a lease agreement – which statements failed to disclose the existence of the easement.[2]

MZL in its Reply argues that it is not seeking summary adjudication of the fraud cause of action but reiterates that the opposition fails to recognize that these plaintiffs did not contact MZL until after they purchased their homes and therefore could not have relied on MZL in buying their homes, as required for a fraud cause of action.

On the one hand, the Court recognizes that MZL cannot permissibly separate the purchase agreements from the lease agreements – consistent with the premises of the Mobile Home Parks Act that mobile homes are essentially “immobile” and that it is not feasible to move the homes elsewhere if the lessor of the spaces does not meet its special obligations under a lease of space for a mobile home. See Health & Safety Code secs. 18250 and 18251, as well as Galland v. City of Clovis (2001) 24 Cal.4^th 1003, 1009-10

On the other hand, even if MZL did not meet its obligations to plaintiffs pursuant to any implied lease,[3] for sake of argument, that does not also mean that these Sales Fraud Claimants can recover for fraud against MZL based on purchase agreements with third persons. The deposition testimony at least of the eighteen plaintiffs in question would also appear to refute any claim that they advised MZL of their buying homes that would give rise to MZL having to provide information under either sec. 798.74.5 or sec. 798.75.5 (that they contend would not have disclosed the easement).

That said, MZL has not shown why an exclusion order is needed here to avoid any undue prejudice to MZL if any of these plaintiffs testified that they bought their homes from MZL or that MZL approved the sales when MZL can show on cross-examination why this would not be true. Moreover, the Court is concerned about having an order that applies to one set of plaintiffs but not to another and its potential to unduly complicate trial. Further, it is not clear why Sales Fraud Claimants are seeking fraud against MZL based on purchase of their homes from third persons when they are also seeking fraud based on not disclosing an easement prior to entering a lease with MZL. It may be that the purchase agreements are not relevant at all if the claims based on a lease are relevant (as discussed separately below). The Court wishes to discuss at the hearing on this motion how plaintiffs intend to address differences between plaintiffs in terms of avoiding a trial that is unduly long.

By this motion, Defendants seek to exclude fourteen of the plaintiffs (“Lease Fraud Claimants”) from testifying they entered a lease with MZL when in their depositions they admitted that they did not apply for a lease from MZL when buying their homes or not enter a lease with MZL until after buying their homes.

In their opposition, plaintiffs argue that it does not matter that MZL did not make any representations to MZL or execute a lease because it still had an obligation to disclose the easement if to do so would prevent full enjoyment of the leased space, citing the above-referenced Civil Code provisions. Further, they argue MZL admitted there was a lease when they gave plaintiffs a 7-day notice in May 2018 related to compliance with the Rules and Regulations, Rental Agreement and Residency Documents.

In Reply, defendants again point to the fact that the Lease Fraud Claimants had no contact with MZL when buying their homes.

Civil Code sec. 798.74.5 is not applicable because Lease Fraud Claimants did not apply for a lease with MZL. Civil Code sec. 798.75.5 is not applicable here because Lease Fraud Claimants did not enter a lease with MZL. Civ. Code sec. 798.15 does not imply a lease with MZL. The 7-day notice (from at least two years after they purchased their homes) does not attach the Rental Agreement referenced and the letter addresses the Rules and Regulations, not any Lease. Plaintiffs have therefore not shown how MZL had an obligation to disclose an easement when Lease Fraud Claimants purchased their homes.

Moreover, it appears there may be no evidence MZL itself knew of the easement when these plaintiffs bought their homes, or reasonably could have known of the easement (if it was not on a title report) and hence whether it is relevant for the Court to hear any evidence as to any such obligation to inform plaintiffs of the easement. The Court wishes to discuss this issue further in conjunction with the scheduled Final Status Conference. If evidence based on a lease obligation would not be relevant, this also may impact the Court’s conclusion as to defendants MIL no. 1.

By this motion, Defendants seek to exclude any evidence that was not produced in response to discovery demands.

In their opposition, Plaintiffs argue that the motion is premature because in a nuisance case the violations may continue after filing of the case, evidence of which would be admissible, citing Renz v. 33^rd Dist. Agricultural Ass’n (1995) 39 Cal.App.4^th 61, 67. They also contend such evidence should be allowed to refresh a witness’ recollection.

Renz, supra, does not discuss what obligation the plaintiffs would have to nonetheless produce documents before trial as to any continuing acts of nuisance that were not alleged in the relevant pleading. The Court does not know if plaintiffs are alleging continuing issues not previously disclosed or if defendants have sought to compel production of documents since the earlier production, as is customary. This would be particularly important in this case that has been awaiting trial for a long time. Regardless, defendants should not have to face issues at trial that were not reasonably disclosed beforehand. In turn, it is not clear why a witness’ recollection could not be refreshed with documents that have been produced already.

By this motion, Defendants seek to exclude evidence of management by defendants of mobile home parks, other than the park at issue here, that they either own or manage as irrelevant.

In their opposition, plaintiffs assert that such information would go to knowledge of a dangerous condition or risk or of a common contributory factor, as well as pertaining to their request for punitive damages.

Under Evid. Code sc. 352, the probity of evidence of management of other parks would be outweighed by the undue consumption of time involved where the Court would likely need to hear about the unique aspects of other parks. The Court can hear about defendants’ level of expertise in management without going into issues at other parks. The Court will be bifurcating that part of the trial, if any, related to punitive damages. The Court can reconsider this issue for that purpose at that time, if necessary.

By this motion, Defendants seek to exclude any parol evidence to vary the terms of the written lease agreements. Specifically, they seek to prevent testimony, contrary to the terms of the leases, that defendants could not raise the rent or that plaintiffs were not permitted to inspect the space prior to leasing the space.

In their opposition, plaintiffs argue that there are several exceptions under Code of Civil Procedure sec. 1856 that allow parol evidence, notwithstanding that the lease may be fully integrated.

The Court will need to hear during trial whether there is sufficient basis to hear evidence that might vary the terms of the leases. Defendants may revisit this issue during trial if there is concern that there is no basis to hear certain offered parol evidence. In a vacuum, however, the court cannot now before trial exclude all such potential evidence.

By this motion, Defendants seek to exclude any lay opinion testimony that repairs or improvements to plaintiffs’ homes were necessitated by conditions at the park, citing to Evidence Code sec. 800 – limiting non-expert opinion testimony to that which is “rationally based on the perception of the witness” and “helpful to a clear understanding of his testimony.” They also note that plaintiffs have not designated a general contractor to provide an expert opinion, only a civil engineer and electrician.

In their opposition, plaintiffs identify numerous cases that illustrate the scope of Evid. Code sec. 800’s allowance of lay opinions related to matters that are likely appropriate in the context of this case whereby a homeowner explains simply why he or she made certain improvements to their homes – that does not rise to the level of purporting to provide expert testimony. See for example Easton v. Strassburger (1984) 152 Cal.App.3d 90, 106 (“It does not require an expert to explain to the jury the relationship between uneven floors and the possibility of unstable soil…”)

A broad order excluding all such testimony is not required at this stage. Plaintiffs can provide lay opinion testimony, within the parameters of sec. 800, related to repairs they made to their homes. The Court does not perceive at this point that this proposed lay testimony is being used to avoid having to designate a general contractor expert witness. Moreover, such testimony would be expected as part of plaintiffs’ setting forth the basis of their case, as well as foundation for those other experts they have designated, as may be needed under Sanchez (2016) 63 Cal.4^th 665.

By this motion, Defendants seek to exclude evidence of their financial status and profitability, under Evid Code sec. 352 and Civil Code sec. 3295(a).

In their opposition, plaintiffs argue that one of the issues at trial will be whether there was a “substantial failure of the management to provide and maintain physical improvements in the common facilities in good working order and condition…” under Civil Code sec. 798.87(a). They argue that they should be able to put on evidence of the park’s finances, such as its net income from rent and utility charges, after expenses and costs are paid, and other financial sources that would be available to pay to maintain, repair and replace its utility systems.

Plaintiffs should be able to prove that there was a substantial failure to maintain the park by way of putting on evidence related to what they contend are the poor conditions at the park. They do not need to put on evidence that defendants had the financial means to make necessary repairs. Putting on such evidence would put defendants to potential undue prejudice with little to no probative value, for purposes of Evid. Code sec. 352. Further, determining that financial status is also likely to require an “undue consumption of time,” including understanding the park’s accounting. If, however, defendants contend they did not have the funds to make repairs, the foregoing is without prejudice to putting on such evidence in rebuttal. In turn, Civil Code sec. 3294(d) prohibits the introduction of such evidence absent a finding of oppression, fraud or malice. As set forth below, the Court bifurcates trial so that the jury can make its findings in this regard. If it does so, the Court can then revisit plaintiffs seeking this information thereafter.

By this motion, defendants seek to exclude incidents or events occurring beyond the statute of limitation. Defendants point out what the relevant dates would be for purposes of the different causes of action, each with its separate statute.

In their opposition, plaintiffs argue that though they may not seek damages for claims accruing prior to the bar of the statute of limitations, they can still introduce such evidence to show long certain problems have existed or how long defendants have known about them, citing to cases allowing such evidence for purposes of showing aggravation or mitigation for penalties, to show conspiracy or for background purposes.

As discussed above, the consequences of defendants having acted with oppression, fraud or malice – such as facing penalties - are bifurcated and will be decided separately. Similarly, there is no claim here of conspiracy to commit the acts involved that might have preceded the acts themselves. In turn, it is not clear why prior background is necessary if the events occurred in a period not barred by a statute. To allow such evidence would defeat the purpose of the statute and provide a potential for holding defendants responsible for conduct that is now time barred.

It is unclear what conduct or sales would thereby be time barred. In turn, the parties should meet and confer as to what the relevant dates would be in this regard. The parties should address this at the FSC.

By this motion, Defendants seek to exclude the expert testimony of Bryan Kimball as to insufficient lighting at the park. The motion is made upon two grounds:

First, Kimball testified at his deposition that the park’s lighting did not violate the minimal lighting standards set forth in Title 25 (namely, meeting the 0.2 horizontal footcandles standard throughout the traversable area); specifically, that the number and type of overhead LED fell “within the acceptable level as square footage and that the total average for the park falls within the acceptable luminosity range required. On this basis, they contend that the lighting issue should be excluded as irrelevant and that he should not be able to testify to any lighting issues as to do so would be unduly prejudicial.

Second, Kendall testified that he has not observed or tested the lighting during nighttime hours when they would be in operation and does not know how dark the park would be at night due to ambient lighting. On this basis, they contend any testimony on his part would be speculative.

In their opposition, plaintiffs argue that Kimball provided two opinions he should be able to give: first, that the light output and type of fixture are not the correct type for this park, and second, that lighting at the park was not correct as the lights were too far apart to provide correct light distribution. The Type 3 light shines a bright spot straight down whereas a Type 1 fixture would be more of an oval light pattern that would then provide an overlapping light.

Plaintiffs do not dispute Defendants’ second point that Kimball has never seen how the lighting operates at night. They also do not contend that Kimball could have a foundation for his opinions without having seen how the lighting works at night at this park. This is significant where Defendants also indicate there may be ambient lighting that lessens the need for overhead lighting. While it is conceivable that an expert looking at the lighting during the daytime might be able to assess what the lighting would look like at night, the Court concludes that such assessment is without reasonable basis and would ultimately be speculative. The Court has a duty to act as a gatekeeper to avoid speculative testimony of experts that a jury might give credence. If an expert intends to come into a courtroom to offer his expertise it is fundamental that he should at least have observed how the lighting worked at night.

Moreover, it appears Kimball still ultimately believed the average lighting did meet regulations, even if a different type of fixture might have been preferable. As such, it is unclear what relevance his testimony would have.

By this motion, Defendants seek to exclude the expert testimony of Bryan Kimball as to the sufficiency or design of the electrical system at the park to meet current demands. They contend he should not be able to give an opinion because though he is licensed electrician he is not an electrical engineer, he has not been involved in the design of a mobile home park electrical system, he has no special training related to mobile home park requirements, he has not done electrical work in a mobile home park since 2003 or 2004, he has not installed electrical panels in a mobile home park and has not installed a mobile home into a park.

In their opposition, Plaintiffs point to his deposition testimony that the system is overloaded where mobile homes are now using 50-amp 240-volt services in their homes as opposed to 30-amp 120-volt receptacles that were the norm when the system was designed. They argue also that his qualifications go to the weight to his testimony as opposed to being a basis to disqualify his testifying altogether.

It is not clear to the Court that Kimball’s intended opinion requires expertise beyond that of a licensed electrician. The different points Defendants make concerning his expertise go to the weight a jury should give his opinion. There is nothing here that would be a basis to disqualify him.

By this motion, Defendants seek to exclude expert testimony of Thomas Newsom concerning the location of the LACFCD easement or of the encroachment thereon. They contend that the expert witness designation does not include a statement that he would be testifying on this subject. They cite portions of his deposition testimony, however, that indicate he has an opinion as to which units encroach on the easement. They contend that such opinions are speculative where Newsom did not know the extent of the easement from the documents he had reviewed and that the only way to do so would be by a survey that he had not conducted.

In their opposition, Plaintiffs quote Newsom’s answers to questions as to the basis for his opinion as to the encroachment that refer to various aerial photographs of the park that indicate various markers. They also allude to his providing an opinion as to the sewer/septic problems.

The fourth amended joint witness list filed April 28, 2022 does not indicate that Newsom will be testifying as to the easement or any encroachment, rather only as to the sewer system. Even if the Court overlooked that plaintiffs had not designated Newsom as an expert on this issue, where Defendants had an opportunity to depose him on his opinions in this regard, the Court is still concerned that there is not a reasonable basis for him to provide an expert opinion on this subject. His own testimony appears to indicate that without a survey (that he did not conduct) he cannot give a definitive opinion. That there were other documents he may have relied on for what opinion he does have does not give the Court confidence that those provide sufficient foundation. The court requires that any such opinion be definitive where this will impact what units may encroach on the easement – and thereby impact the amount of potential damages. Moreover, it is unclear to the Court how even if had some opinion on this subject that ultimately such opinion is immaterial where there is no evidence that he knows what LACFCD is contending. According to Defendants’ trial brief, it is not known what LACFCD is contending as to the scope of the easement and there are no relevant documents identifying the scope. Without that information, it is not clear that there would be sufficient basis for any decision in this regard. Though a representative of the LA County Dept. of Public Works is on the witness list, that could not fairly be a basis for Newsom to then have an opinion on this issue.

Nothing herein precludes Newsom testifying to the sewer/septic issues as to which he was designated.

By this motion, Defendants seek to exclude the testimony of Jose A. Galan Lopez and Alejandro Rascon, non-retained expert witnesses that Plaintiffs intend to call. The motion is made upon the basis that neither person appeared for their deposition, though personally served with subpoenas to appear. The motion attaches the proof of service and certificate of non-appearance.

In their opposition, Plaintiffs withdraw Lopez as a non-retained expert. They argue as to Rascon that Defendants should have filed a motion to compel compliance, that there was not a “meet and confer” prior to filing the motion and that there is no requirement to identify witnesses before trial.

None of Plaintiffs’ arguments have merit: While a motion to compel compliance might have made sense if the deposition was of a party to the case, here Rascon is a non-party and Plaintiffs have not shown that a motion to compel compliance is a pre-requisite. Defendants have done what was required. If Plaintiffs still wish to call him (and he is on the witness list), the burden was on them to make him available for deposition. They have not done so. Defendants have shown they did meet and confer. This Court’s Local Rules require parties to pre-designate witnesses in long cause cases such as this.

By this motion, Defendants seek to exclude expert testimony of real estate appraiser Robert Caringella related to how a jury would quantify a reduction in rent, loss of use and enjoyment of a home or home value. This testimony would only advise them about how they might evaluate damages as opposed to providing any express opinion quantifying what amount they should find as damages for these losses. Defendants argue that such testimony would offer no information that would require expert testimony and instead merely offers a commonsense conclusion that if property is not what it could be because of some negative quality it will be worth less than it might otherwise, citing by analogy Lynn v. Tatitley Support Services (2017) 8 Cal.App.5^th 1096, 1116 (exclusion of medical testimony that lack of sleep causes fatigue) They argue also that providing any further opinion quantifying that loss after hearing the evidence would unfairly surprise Defendants and breach the requirement that all opinions be provided at the deposition of the expert. Caringella had sufficient opportunity before his deposition to find out what other experts were going to testify as to the conditions or review the plaintiffs’ depositions.

In their opposition, Plaintiffs first argue that the motion must be denied because there was no “meet and confer” before filing of the motion. On the merits, they argue that Caringella is permissibly offering a valuation methodology for the jurors in determining what reduction to make for defects with the park and that reduction in value was a subject on which an expert could testify in comparing the value of properties under Evid. Code sec. 816. They cite to Michaels v. Greenberg Traurig (2021) 62 Cal.App.5^th 512, 523 for the proposition that the court in acting as gatekeeper should act cautiously in excluding expert testimony and that the “focus must be solely on principles and methodology, not on conclusions they generate.” Finally, they note that Caringella did perform an appraisal of the units that is attached as Exhibit 2 thereto.

In their reply, Defendants initially acknowledge that they inadvertently failed to meet and confer on this motion, though they did as to all others, but indicate based on the opposition that it would not have avoided the motion. They also clarify that they do not seek to exclude Caringella from providing testimony as to his appraisal of certain units at the park that is attached to the opposition. They instead argue further that Caringella may not permissibly offer “additional” opinions based on information learned at trial that would quantify his opinions, that the general testimony offered at his deposition are “merely assertions that rest on common knowledge rather than on matters of type reasonably relied upon in forming an expert opinion,” citing Sargon Enterprises v. Univ. So. Cal. (2012) 55 Cal.App.4^th 747, 770. Significantly, they point to form jury instruction (CACI No. 4342) that already advises jurors on how to assess damages for reduction in rent based on breach of habitability. Finally, they urge that they should not be subjected to surprise at trial by way of an expert who is a “moving target” in terms of an opinion he has not yet formed but which exceeds what he was required to have provided at his deposition.

The failure to meet and confer was not prejudicial to Plaintiffs and would not in this instance have avoided the filing of the motion. It is in all persons’ interests for these issues to be decided before trial. Caringella merely testifying that loss of use should result in payment of less rent or reduced value is commonplace information not a “methodology” requiring expert testimony. Caringella has not provided an opinion that might help jurors quantify by what amounts it could assess damages for loss of use or reduced value. Merely stating a rudimentary method (using an unstated percentage) is not to give an opinion. Instead, he would be effectively advising the trier of fact what it should do – precisely what an expert may not do. Plaintiffs misread Michaels, supra, concerning a focus on methodology. The point there was to determine whether a reasonable methodology was to be used; the issue here is that there is no opinion even if there may be a method. Defendants should not have to wait until the middle of trial to learn what his opinions might now be as to how to quantify that loss. Caringella could have provided those opinions at his deposition if he wanted to do so. (Kennemur v. State of Calif. (1982) 133 Cal.App.3d 907, 920)

By this ruling, the court is not excluding testimony as to the appraisal opinion attached to the opposition.

Defendants bring this motion, as well as for a protective order concerning their income or profits before any finding is made that they are guilty of oppression, fraud or malice, pursuant to Civil Code secs. 3294 and 3295.

Plaintiffs oppose the motion on the same basis as they opposed Defendants Motion in Limine No. 8, as discussed above.

Plaintiffs have not provided the basis for their previously asserted objections to Defendants’ proposed instructions. Plaintiffs shall do so by November 9, 2023.

On September 29, 2023, Defendants filed their Objections to Plaintiffs’ requested Special instructions, setting forth the basis for doing or indicating that plaintiffs had withdrawn the request. In addition, plaintiffs filed a brief re: jury instructions, stating they will either amend or withdraw certain special instructions, as well as arguing why other of their proposed instructions are proper.

The Court orders that plaintiffs file an amended set of proposed instructions wherein they either withdraw or amend the relevant instructions. They should do so by November 9, 2023. The Court will then rule on the objections to that revised set of instructions.

[1] Plaintiffs have not sued for fraud the current owner of the park, JDH Capital, or JDH Investments that owned the Park from October 2016 to January 2017. Plaintiffs purchased their homes before October 2016. MZL is also the property manager for the JDH companies at the park.

[2] Plaintiffs also point to Civil Code sec. 798.74.5, which provides that within two business days of receiving an application for residency the lessor shall provide the prospective lessee information that a fully executed lease agreement is required prior to completion of the purchase of a mobile home, as well as Civ. Code sec. 798.15 for the proposition that a lease agreement with MZL would be implied even if a lease was not provided by MZL.

[3] It is not clear to the Court how plaintiffs believe Civ. Code sec. 798.15 implies MZL will have entered a lease with plaintiffs. That said, a lease may be implied in MZL accepting rent from a tenant. The Court has no information as to the latter issue.