Judge: Gail Killefer, Case: BC597908, Date: 2025-01-07 Tentative Ruling
Case Number: BC597908 Hearing Date: January 7, 2025 Dept: 37
Priscilla Vaccarezza, et al.
v Vincent Baker, D.V.M., et al. Hearing
Date: January 7, 2025
(BC597908)
Tentative
Rulings on Motions in Limine
Plaintiffs’ Motions:
1. Plaintiffs
requests a new trial on the issue of damages pursuant to CCP §§ 657 and 662.
Plaintiffs
argue that this court should limit the retrial of this case to the issue of
damages, rather than granting a new trial in its entirety. The court agrees with Defendants that this
motion is not technically a motion in limine, requesting an order excluding
certain specific evidence, but rather an order asking this court to bifurcate liability,
which Plaintiff argues has been decided, and damages, which has not. The court agrees, however, that the question
of whether the new trial should be limited to the issue of damages must be
decided forthwith regardless of how the motion is titled.
In
their Memorandum in Support of Motion for New Trial, Defendants argued that
“[t]here should be a new trial ordered so that a new jury, properly instructed,
can reconsider the amount of damages in light of prevailing California
law.” (Def. Memo, p. 9.) The appellate court agreed and reversed the
trial court’s denial of Defendants’ motion for a new trial, instructing this court
to deny Defendants’ motion for judgment notwithstanding the verdict and
granting Defendants’ motion for a new trial.
If
properly before it, the trial court has the power to grant a new trial limited
to the issue of damages. (Liodas v. Sahadi (1977) 19 Cal. 3d 278,
285 [" 'A new trial limited to the damage issue may be ordered where it
can be reasonably said that the liability issue has been determined by the
jury.' "].) (Shapiro v. Prudential Property & Casualty Co. (1997) 52
Cal.App. 4th 722, 726.)
"The power of a
trial court to grant a new trial as to some issues, while refusing it as to
others, is also well established. [Citations.] '. . . An abuse of discretion must be
shown before a reviewing court will reverse the trial judge's decision
[citations].'" (Tan Jay International v. Canadian Indem. Co. (1988)
198 Cal.App. 3d 695, 705.)
In their respective Memoranda of Law addressing the effect of the appellate
decision on the new trial, both parties cite to the following three-part test
for professional negligence set forth in Williamson v. Prida (1999) 75
Cal.App.4th 1417, 1424: 1) establishment of a specific standard of
care for the profession at the time; 2) that the actions of the defendant fell
below the standard of care; and 3) that the actions of the defendant which fell
below the applicable standard of care were the cause of damage complained of by
the plaintiff.
This court agrees with Plaintiff that the appellate court confirmed
the first two elements of the test regarding the standard of care: it is the standard of care to disclose
abnormal hematology results and “Baker’s failure to disclose the hematology
results fell below the standard of care in the industry.” (Appellate Decision, p. 18.)
It is the third element that evidence in the new trial must
address: that the actions of the defendant which fell below the applicable standard
of care were the cause of damage complained of by the plaintiff.
Defendants assert that the excessive jury verdict “was
based on an erroneous jury instruction and grossly speculative testimony.” (Def. Opp. to MIL No. 1, 4.) In the new trial before this court, Defendants
argue that Plaintiffs must establish damages that
were caused by Defendants’ negligence.
The court agrees and finds that the jury need not consider again the
issue of whether Defendant’s actions fell below the standard of care given the appellate
decision.
Ruling: The court grants Plaintiff’s MIL No.
1 and orders that retrial of this case is limited to the issue of damages:
Plaintiffs must present evidence that Baker’s failure to disclose the hematology
results was a substantial factor in causing the damages alleged by
Plaintiffs.
2. Plaintiffs
request an Order allowing Plaintiffs’ Veterinary Medical Expert, Joseph P.
Dowd, D.V.M., to provide expert testimony.
Plaintiffs request an order allowing Plaintiffs’ veterinary
medical expert, Joseph P. Dowd, D.V.M., to provide expert testimony despite Dr.
Dowd now being a former client of Defendants’ counsel, Lisa Brown.
Dr. Dowd stated that Carlo E. Vaccarezza was his client
before Ms. Brown represented him in any matter.
(Dowd Dec. ¶ 7.) He explained
that Ms. Brown was selected to represent him in the Veterinary Medical Board
matter (the administrative “Accusation”) by his insurance company, and not
through any prior attorney/client relationship between Dr. Dowd and Ms.
Brown. (Id., ¶ 8.) Dr. Dowd has also approved a substitution of
counsel in the administrative “Accusation” regarding his license.
Dr. Dowd considers the representation by Ms. Brown of his
interests in the administrative “Accusation” to be unrelated to this action and
not in conflict with his testimony in this trial. (Id.)
He has waived any perceived conflict by Ms. Brown and understands and
agrees “that Ms. Brown will depose and cross-examine [him] as an expert witness
testifying on behalf of the plaintiffs” at trial. (Id. ¶ 10.)
Ruling: For the reasons set
forth above, the Court GRANTS Plaintiff’s Motion in Limine No. 2. Dr. Dowd may provide expert testimony in this
case.
3. Plaintiffs
request an Order to compel Defendant Vincent A. Baker, D.V.M. to appear at
trial and for Production of Documents.
Plaintiffs
served a notice to appear at trial on Dr. Baker with nineteen categories of
documents to be produced at the time of trial pursuant to CCP § 1987.
CCP § 1987(b) provides in relevant part:
In the case of the production of a
party to the record of any civil action or proceeding or of a person for whose
immediate benefit an action or proceeding is prosecuted or defended or of
anyone who is an officer, director, or managing agent of any such party or
person, the service of a subpoena upon any such witness is not required if
written notice requesting the witness to attend before a court, or at a trial
of an issue therein, with the time and place thereof, is served upon the
attorney of that party or person. The notice shall be served at least 10 days
before the time required for attendance unless the court prescribes a shorter
time. If entitled thereto, the witness, upon demand, shall be paid witness fees
and mileage before being required to testify. The giving of the notice shall
have the same effect as service of a subpoena on the witness, and the parties
shall have those rights and the court may make those orders, including the
imposition of sanctions, as in the case of a subpoena for attendance before the
court.
(CCP § 1987(b).) Subsection (c)
further provides:
If the notice specified in subdivision
(b) is served at least 20 days before the time required for attendance, or
within any shorter period of time as the court may order, it may include a
request that the party or person bring with him or her books, documents,
electronically stored information, or other things. The notice shall state
the exact materials or things desired and that the party or person has them in
his or her possession or under his or her control. Within five days
thereafter, or any other time period as the court may allow, the party or
person of whom the request is made may serve written objections to the request
or any part thereof, with a statement of grounds. Thereafter, upon noticed
motion of the requesting party, accompanied by a showing of good cause and
of materiality of the items to the issues, the court may order production
of items to which objection was made, unless the objecting party or person
establishes good cause for nonproduction or production under limitations or
conditions. The procedure of this subdivision is alternative to the procedure
provided by Sections 1985 and 1987.5 in the cases herein provided for, and no
subpoena duces tecum shall be required. Subject to
this subdivision, the notice provided in this subdivision shall have the same
effect as is provided in subdivision (b) as to a notice for attendance of that
party or person.
(CCP §
1987(c) [bold added].)
Defendants
object to the first two categories as not being relevant, and to categories 3
through 19 for, inter alia, “failure to state the exact materials or
things desired.” (CCP § 1987(c).) Given this court’s ruling on Plaintiffs’
Motion in Limine No. 1, the court orders counsel to meet and confer regarding
whether the categories of documents requested are relevant to the new trial of
this action.
Ruling: The court defers ruling on this motion.
4. Plaintiffs
request an Order to preclude evidence of any passive investors in Little
Alexis.
Ruling:
GRANTED. This
motion in limine was unopposed.
5. Plaintiffs
request an Order granting Judicial Notice of the current probationary status,
and the Decision and Order involving the California Veterinary Medical Board.
Given this court’s ruling on Plaintiffs’ Motion in Limine
No. 1, the court orders counsel to meet and confer regarding whether judicial
notice of the current probationary status and
the Decision and Order involving the California Veterinary Medical Board are relevant to the new trial of this action.
Ruling: The court defers ruling on this motion.
6. Plaintiffs
request an Order for a Jury Instruction and Special Verdict that Includes
Prejudgment Interest
Plaintiff seeks a jury instruction (CACI 3935, as
modified) and special verdict form that includes prejudgment interest pursuant
to Civil Code § 3288. Section 3288
provides in relevant part:
In an
action for the breach of an obligation not arising from contract,
and in
every case of oppression, fraud, or malice, interest may be given,
in the
discretion of the jury.
Section 3287(a) provides:
A person who is entitled
to recover damages certain, or capable of being made certain by calculation,
and the right to recover which is vested in the person upon a particular day,
is entitled also to recover interest thereon from that day, except when the
debtor is prevented by law, or by the act of the creditor from paying the debt.
This section is applicable to recovery of damages and interest from any debtor,
including the state or any county, city, city and county, municipal
corporation, public district, public agency, or any political subdivision of
the state.
Ruling: The
court agrees with Defendants that this is not technically a motion in limine
and the court defers ruling on this issue.
7. Plaintiffs
request an Order precluding Prejudicial Remarks on Irrelevant Matters.
Plaintiffs request an order precluding specifically excluding
prejudicial remarks made by Ms. Brown on January 16, 2019, regarding Plaintiff
Carlo Vaccarezza and his mob affiliations.
Defendants now say that they have no intention of introducing evidence
on the purported relationship.
Defendants do not oppose this motion but request that the ruling apply
equally to both parties. As the court cannot exclude evidence in a vacuum and
thus cannot exclude unspecified evidence proposed by Defendants, the court
GRANTS Plaintiff’s MIL No. 7 and excludes prejudicial remarks regarding
Plaintiff Carlo Vaccarezza and his alleged mob affiliations.
Ruling: The
court GRANTS Plaintiff’s MIL No. 7 and excludes prejudicial remarks regarding
Plaintiff Carlo Vaccarezza and his alleged mob affiliations.
Defendants’ Motions:
1. Defendants
request an Order to preclude Cumulative Evidence.
Defendants seek an order that precluding Plaintiffs from offering
cumulative testimony of their designated retained or non-retained experts witnesses
on the same subject and an order that Plaintiff Carlos Vaccarezza be precluded
from testifying as an expert on any subject.
Defendants’ motion, however, lacks any specificity as to what evidence
Defendants seek to exclude, and must be denied on that basis.
Moreover, Plaintiffs advised Defendants that with Dr.
Dowd testifying, Plaintiffs have withdrawn Dr. Ramey, Dr. Chovanes, Carlo Vaccarezza,
James Cassidy, and Fernando Abreu as retained experts. Mr. Vaccarezza and Mr.
Abreu remain percipient witnesses and Mr. Vaccarezza may testify as to the
value of his property without showing any special qualifications. (Schroeder v. Autodriveaway Co. (1974)
11 C.3d 908, 921.)
Ruling: The Court DENIES
without prejudice this MIL as vague as to what evidence Defendants seek to
exclude. The court is mindful of Evid.
Code § 352 and will rule on objections to evidence as cumulative as such
objections are made.
2. Defendants
request an Order to preclude Lay Witness from Testifying in the form of an
Opinion.
Defendants seek an order to preclude lay witnesses from testifying
in the form of opinions as such opinions relate to veterinary medicine or
standards of care for veterinarians, medical causation, or the fair market
value of the property at issue.
Specifically, Defendants seek to exclude the opinion testimony of
Nicholas Vaccarezza except to the extent that he may be permitted to give
opinions under Evid. Code § 800.
Ruling: The Court GRANTS in part MIL No. 2 to
the extent Defendants seek to exclude the opinion testimony of Nicholas
Vaccarezza beyond the reach of Evid. Code § 800, DENIES in part the
motion as to the opinion testimony of Carlo Vaccarezza regarding the value of
his property (Schroeder v. Autodriveaway Co. (1974) 11 C.3d 908, 921.);
and otherwise DEFERS ruling on this issue as Defendants have not
identified any specific testimony they seek to have excluded. The
court also questions the relevance of this evidence given the court’s ruling on
Plaintiffs’ MIL No. 1.
3. Defendants
request an Order to exclude Evidence or Testimony Re: Experts’ Personal
Preferences in Veterinary Care and Treatment.
Defendants seek an order to exclude evidence or testimony
from experts regarding their personal preferences relating to the standard of
care in veterinary care and treatment. Given that Defendants have not identified any
specific testimony they seek to have excluded, and given this Court’s ruling on
Plaintiffs’ MIL No. 1, the Court DEFERS ruling on this issue until
trial.
4. Defendants
request an Order to Exclude Testimony and Evidence Relating to Non-Compensable
and/or Speculative Damages Claims.
Ruling:
GRANTED. This
motion in limine was unopposed.
5. Defendants
request an Order to Exclude Testimony and Evidence Relating to any peculiar
Value of the Subject Horse.
Ruling:
GRANTED. This
motion in limine was unopposed.
6. Defendants
request an Order to Exclude Evidence of Offers to Purchase the Subject Filly.
Defendants request an order excluding evidence regarding
purported offers to purchase Little Alexis.
Defendants argue such evidence constitutes inadmissible hearsay, is not
probative as evidence of fair market value, and is likely to mislead the
jury. Defendants do not specify what
evidence they want excluded.
Plaintiffs reference an offer made by Nick Salusto and
the testimony of Plaintiff Carlo Vaccarezza.
Ruling: The court defers ruling on this motion until
argument to learn how Plaintiffs contend this evidence is admissible given the
prohibitions in Evid. Code § 822(a)(2) and, specifically, what evidence
Defendants seek to exclude.
7. Defendants
request an Order to Exclude Testimony or Evidence Relating to Other Claims,
Suits, or Complaints by Defendants.
Defendants request an order to exclude testimony or evidence
relating to other claims, suits, or complaints, civil or administrative,
against them. Defendants rely on Evid.
Code §§ 352 and 1104 but identify no specific testimony or evidence they seek
to have excluded. Moreover, in
opposition to Defendants’ MIL No. 11, Plaintiffs indicated that they have no
intention of introducing evidence regarding other civil litigation, civil
complaints, or other lawsuits, except for the Decision and Order issued by the Veterinary
Medical Board Department of Consumer Affairs State of California, dated July
21, 2023. Given this Court’s ruling on
Plaintiffs’ MIL No. 1, the court questions the relevance of this evidence.
Ruling: The Court defers ruling on MIL No. 7.
8. Defendants
request an Order to Exclude Evidence Relating to Insurance on Little Alexis.
Ruling:
GRANTED. This
motion in limine was unopposed.
9. Defendants
request an Order to Exclude Witnesses or Evidence Not Timely Identified or
Produced in Discovery.
Ruling:
GRANTED. This
motion in limine was unopposed.
10. Defendants
request an Order to Exclude Evidence Re: Witness’s Attendance at Marjory
Stoneman High School.
Ruling:
GRANTED. This
motion in limine was unopposed.
11. Defendants
request an Order to Exclude Testimony or Evidence Relating to Veterinary
Medical Board Complaint Against Defendants Vincent A. Baker and Equine Medical
Center.
Defendants request an order excluding testimony or
evidence relating to the Veterinary Medical Board Complaint against Defendants
Vincent A. Baker and Equine Medical Center.
Plaintiffs indicated that they have no intention of introducing evidence
regarding other civil litigation, civil complaints, or other lawsuits, except
for the Decision and Order issued by the Veterinary Medical Board Department of
Consumer Affairs State of California, dated July 21, 2023.
Ruling: Given this Court’s ruling on Plaintiffs’ MIL
No. 1, the court questions the relevance of this evidence and defers ruling
on MIL No. 11.
12. Defendants
request an Order to Exclude Anticipated Jury Instruction Modification
Defendants anticipate that Plaintiffs will propose
modifications to CACI Jury Instruction 3903J.
Defendants oppose the modifications as erroneous, inaccurate, and
inconsistent under the current state of the law.
The subject matter of Defendants’ MIL is not appropriate
for a motion in limine.
Ruling: The court defers ruling on MIL No. 12 at
this time.