Judge: David J. Cowan, Case: SC126845, Date: 2024-02-09 Tentative Ruling
Case Number: SC126845 Hearing Date: April 24, 2024 Dept: 200
LOS ANGELES
SUPERIOR COURT – WEST DISTRICT
BEVERLY HILLS
COURTHOUSE – DEPT. 200
TENTATIVE RULINGS
ON REMAINING MOTIONS IN LIMINE
Lackey, et al. v.
Zohoury, et al., Case No. SC126845
Hearing Date: April
24, 2024, 8:30 a.m.
PLAINTIFFS’ MOTIONS
3. By this motion, Plaintiffs seek to exclude
Defendants’ experts Dr. Sean Fischer, Tom Hacker, Robert Griswold and Robert
Zohoury based on their failure to make them available for deposition, as well
as in providing a defective expert designation for Dr. Fischer. The motion was
filed November 18, 2022 when trial was scheduled before Judge Epstein on
November 28, 2022. In opposition, Defendants argue that the basis for exclusion
of experts is unreasonable failure to make experts available for deposition
and that there were various reasons why the depositions had not been scheduled and
why the designation of Dr. Fischer did not provide specific information. By
then, trial was scheduled for December 27, 2022. In Reply, Plaintiffs argue why
Defendants have been acting unreasonably. They also attach a ruling of Judge
Epstein dated December 21, 2022 vacating the trial date since the parties were
not ready for trial. The Court does not determine at this time whether Defendants’
conduct was unreasonable, instead ordering the parties to each file a report –
five days before the hearing on this motion - as to what expert depositions
have been taken in the last year plus since this motion was briefed, whether
this motion is now moot and if not what their position is at this time as to
these issues.
4. By this motion, Plaintiffs seek to exclude the
expert testimony of Harry L. Skalsky, a PhD in Toxicology, as well as of
Jonathan Massey, related to testing for asbestos and lead levels in the units
at the property, to the extent they are inconsistent with the facts found by
the Santa Monica Rent Control Board (“SMRCB”) that Judge Epstein ruled in an
order of May 16, 2022 would apply by reason of collateral estoppel in this
case. Plaintiffs point to deposition
testimony of Skalsky that would appear inconsistent with those facts, as well
as without foundation. In turn, Massey’s inspections were later than the time
in question at the SMRCB hearing. Plaintiffs seek to avoid testimony that would
confuse the jury. Finally, they contend Skalsky’s expert designation did not
provide an adequate description of his intended opinions. In opposition,
Defendants argue that Judge Epstein did not rule out all testimony on the
subjects he found applied by collateral estoppel and that Plaintiffs would
still need to “connect the dots between the finding and liability.” For
example, the findings did not address the amount of or the effects of exposure.
In addition, because the order does not apply to all defendants, the defendants
not bound by the order should be able to offer this evidence. Plaintiffs’ Reply
argues the opposition fails to rebut the points in the motion. The Court grants
the motion as to those parties bound by the order. The Court will hear from
counsel at the hearing how it should handle allowing those parties who are not
bound by the order to defend the case without confusing the jurors, including
whether the Court should hold a separate trial as to the defendants not bound
by the order. Plaintiffs should also identify more specifically before the
hearing which of Skalsky and Massey’s conclusions identified at their
depositions should be excluded. In connection therewith, Defendants will know
what other opinions of these experts may permissibly be offered to avoid continuing
objections in front of the jury. The lack of a complete designation does not
appear unduly prejudicial where Plaintiffs have had the opportunity to depose
Skalsky to find out the extent of his opinions. That Massy’s testing was done
after the date the Board was concerned with does not necessarily mean it is not
still relevant. This goes to the weight of the testimony. To the extent these
experts’ remaining opinions are claimed to be without foundation, the Court can
rule on those objections at time of trial depending on what foundation defendants
lay.
5. By this
motion, Plaintiffs seek to exclude evidence or argument as to defendants Victor
Westin and Hamed Hugh Farzaneh, whose default was taken. Plaintiffs argue they
are thereby precluded from contesting the case and issues as to them are
irrelevant. In opposition, remaining defendants argue that these defaulted
defendants can still be called by them as witnesses. In Reply, Plaintiffs argue
that allowing their testimony would in effect unfairly allow them to contradict
the claims asserted against them, citing Rios v. Singh (2021) 65
Cal.App.5th 871, 887 and Garber & Assoc. v. Eskandarian
(2007) 150 Cal.App.4th 813, 823. Since briefing of the motion, on May
5, 2023, the Court relieved Farzaneh from entry of his default. Hence, the
motion would be moot as to Farzaneh. The Court grants the motion as to Westin.
Allowing him to testify as to what he is being sued over and to plead his
defense thereto is inconsistent with entry of his default. He cannot have it
both ways. Likewise, other defendants should not have the benefit of his
testimony. As their agent, they should have sought to defend him if they wished
to secure his testimony.
DEFENDANTS’ MOTIONS
1.
The Court already denied this motion by ruling
filed February 9, 2024.
2.
By this motion, Defendants seek to exclude
documents that were responsive to their second set of document requests, and in
particular, documents concerning Plaintiffs’ medical costs that were the
subject of testimony by Dr. Gary Richwald at his deposition. Defendants contend
that it was improper for Plaintiffs not to have responded to those requests on
the basis that Defendants themselves had not fulfilled their discovery
obligations. Plaintiffs oppose the motion on several grounds: First, that Defendants
did not comply with LASC Rule 3.57 in stating what specific documents should be
excluded, not having met and conferred prior to filing the motion and not
showing what prejudice they would suffer if the documents were not excluded. In
addition, Plaintiffs argue that if they disagreed with their responses to the
document requests, their remedy was to have moved to compel further responses,
not to now seek exclusion of documents. Defendants argue in their Reply in
summary that fairness requires these documents be excluded to avoid unfair
surprise. The Court denies the motion. No reason is given why Defendants did
not move to compel. They cannot bypass that requirement and instead seek
exclusion of documents. The Court cannot now assess what the outcome of that
motion might have been. Further, the documents sought to be excluded are not
sufficiently specified. Even if these are solely medical records, a meet and
confer might have avoided this issue. Any undue surprise should have been
avoided by the production of any such documents as part of the exchange of
documents in assembling the exhibit list for trial.
3.
By this motion, Defendants seek to exclude the
expert testimony of Alan Wallace. They contend that Wallace, a lawyer, would be
merely giving an improper opinion as to the law, that it is for the Court to
instruct the jury concerning, and or repeating the hearsay statements of the
hearing officer at the SMRCB. In opposition, Plaintiffs argue that Wallace is
also a real estate broker and may be giving an opinion as to the duty of
landlords related to abatement of asbestos and lead exposure to tenants, as
well as related to fair rental value of the units at the subject property. In
addition, they contend that an expert may permissibly rely on hearsay for an opinion.
Further, they indicate that Defendants have not identified the purely legal
issues Wallace would allegedly be giving. In Reply, Defendants emphasize that
it is for the Court to instruct the jury on the law, not Wallace. The Court
denies the motion in part and grants it in part. Wallace can testify to
opinions he provided at his deposition. Wallace will not be able to give those
opinions until the necessary foundation evidence is presented to the jury,
including related to any asbestos exposure. The Court is not going to prevent Wallace
at least at this time from offering an opinion based in part on the final
decision of the Board, notwithstanding its hearsay nature. However, Wallace
cannot give an opinion about the decision itself – which would be the role of the Court to instruct
the jury concerning, as already ruled upon by Judge Epstein. The Court will discuss
with counsel those instructions at the further FSC.
4.
By this motion, Defendants seek to exclude the
expert testimony of Dr. Gary Richwald. They contend that he was not the
treating physician for any of the Plaintiffs, that his expertise is related to
sexually transmitted diseases (“STD”) not asbestos exposure and that his
opinions are speculative related to what future medical costs they might have
related to asbestos exposure where he did not “examine” them. In opposition,
Plaintiffs indicate that Dr. Richwald did meet with each of the plaintiffs, he is
familiar with the asbestos and lead issues at the property and gives an opinion
to a “medical degree of certainty.” They contend that it is improper to exclude
his testimony simply because of the limited amount of evidence on which he
relies as opposed to his qualifications. In Reply, Defendants argue that Richwald’s
opinion is based on a patchwork of information that does not meet the level of foundation
required to give expert testimony. The Court denies the motion. Initially,
Richwald will need to explain what experience he has as a doctor related to the
issues here as opposed to concerning STD’s. Whether Richwald will ultimately be
able to provide the proposed opinions will also depend on what foundation is
otherwise put into evidence beforehand. The Court finds the underlying
objection here more in the nature of the weight his testimony can be given as
opposed to a basis for wholesale exclusion. It remains to be seen what level of
connection Richwald can provide as between plaintiffs’ complaints and medical
records and the problems at the property.
5.
By this motion, Defendants seek to exclude any
expert testifying to their not having a permit for construction work or relying
on the SMRCB for its hearsay statements in this regard. They request an Evid.
Code sec. 402 hearing prior to any such testimony. In opposition, Plaintiffs
argue that a permit was ultimately obtained even if there was not one at the
outset and that this issue is at the heart of this case. Hence, exclusion of
expert testimony would be erroneous as there is foundation for such testimony. Further,
for the reasons already stated in opposition to Defendants’ MIL No. 1, the
SMRCB decision is admissible. In addition, they argue a 402 hearing would not
be needed here where there is not a “preliminary fact” that would need to be
determined prior to admission of testimony. The Court denies the motion. As
with the other motions in limine of Defendants, where expert testimony depends
on “case specific” facts, the Court is not in a position at this time to
determine whether such facts will be presented. If that evidence is not
offered, Defendants can reassert their objection prior to the Court hearing
from the experts. A 402 hearing would not work in this regard because the jury
will likely need to hear the disputed foundational facts at issue – even
leaving aside whether they are a prerequisite to hearing expert testimony.
DATED:
_________________________________
DAVID J. COWAN
Judge of the Superior Court