Judge Laura A. Seigle, Case 19STCV24126 2022-11-14 Tentative Ruling

Judge: Laura A. Seigle, Case: 19STCV24126, Date: 2022-11-14 Tentative Ruling

Case Number: 19STCV24126 Hearing Date: November 14, 2022 Dept: 15

[TENTATIVE] ORDER RE MOTIONS IN LIMINE

Plaintiffs’ MIL No. 1

Plaintiffs move to exclude reference to Plaintiff’s attorneys and their business. Pursuant to the July 8, 2022 CMO, this motion is deemed made and granted. Defendants did not show good cause to depart from that order. Therefore, the motion is granted.

Plaintiffs’ MIL Nos. 2 and 3

Plaintiffs move to exclude evidence about exposure to the products of defendants who are no longer in the case, as well as the contents of the complaint. The request to exclude mention of the contents of the complaint is impossible – the trial is about the allegations in the complaint. Therefore, this part of the motion is denied. The request to exclude evidence about exposure to other products is too vague.

Pursuant to the July 8, 2022 CMO, a motion to modify the caption on documents that may be presented to the jury to refer only to defendants remaining in this case is deemed made and granted but such order does not affect any allocation of fault under Proposition 51. Therefore, this part of the motion is granted except not so as to affect any allocation of fault under Proposition 51.

Pursuant to the July 8, 2022 CMO, a motion to exclude evidence about the liability of tortfeasors not present at trial is deemed made and denied without prejudice to a contemporaneous objection at trial. Plaintiffs did not show good cause to depart from this order. Therefore this part of the motion is denied without prejudice to a contemporaneous objection at trial.

Plaintiffs’ MIL No. 4

Plaintiffs seek to exclude references to bankruptcy trusts and bankrupt entities. Pursuant to the July 8, 2022 CMO, a motion to exclude reference to the bankruptcy of an alleged tortfeasor not present at trial is deemed made and granted. Defendants did not show good cause to depart from that order. Therefore, the motion is granted in part as to references to the bankruptcy of an alleged tortfeasor not present at trial.

However, also under the CMO, a motion to exclude evidence about the liability of tortfeasors not present at trial is deemed made and denied without prejudice to a contemporaneous objection at trial. Plaintiffs did not show good cause to depart from this order. Therefore to the extent Defendants wish to refer to alleged tortfeasors not present at trial, without referencing any bankruptcy, the motion is denied without prejudice to a contemporaneous objection at trial.

The motion is granted in part and denied in part.

Plaintiffs’ MIL No. 5

Plaintiffs move to exclude evidence of an order from the Garlock bankruptcy case about Plaintiffs’ experts. Defendants state they have not indicated they intend to rely on the order and that the motion is vague. That order was in a different case with different parties. The probative value is outweighed by the prejudice as well as the undue consumption of trial time it will take to explain the context of that order and the circumstances of the bankruptcy case. Defendants did not explain why the evidence is relevant here.

Plaintiffs also seek to exclude the use of the phrase “junk science.” That term is prejudicial and derogatory. Defendants can challenge and seek to undermine Plaintiffs’ experts without using that phrase.

The motion is granted.

Plaintiffs’ MIL Nos. 6, 8

Plaintiffs move to exclude evidence of Robert Ray’s and Sage Ray’s history of drug use. use as irrelevant and unduly prejudicial. This evidence is more prejudicial than probative. For example, no party submitted expert testimony that the prior drug use could have caused or contributed to Robert Ray’s illness and death.

The motions are granted.

Plaintiffs’ MIL No. 7

Plaintiffs filed a motion to exclude evidence of Sage Ray’s prior arrests, criminal charges, misdemeanor convictions, and felony convictions as irrelevant, unduly prejudicial, and inadmissible under Evidence Code sections 787 and 788. Defendants submit evidence that Sage Ray has been convicted of seven felonies since the 1990s, the most recent three in 2010 and 2008 for burglary and receipt of stolen property.

Under section 787, evidence of specific instances of conduct tending to prove a character trait is inadmissible to attack a witness’s credibility except as provided in section 788. Under section 788, evidence of a felony conviction may be used to attack the credibility of a witness except in circumstances not shown to be present here. “[F]elony impeachment evidence is admissible in civil cases under Evidence Code section 788. Under Evidence Code section 352, however, the trial court is required to balance probative value against potential prejudicial effect, upon a timely and specific objection.” (Robbins v. Wong (1994) 27 Cal.App.4th 261, 264.)

Defendant argues that Sage Ray’s credibility is directly at issue because his testimony contradicted Robert Ray’s testimony about when Robert Ray worked at the refinery. Plaintiffs argue the convictions were remote in time because they took place about 10 years ago, have nothing to do with the claims here about mesothelioma, and will make the jury view Sage Ray as a bad guy.

The convictions for burglary and possession and receipt of stolen property implicate Sage Ray’s honesty and credibility. Those four convictions occurred from 1997 to 2010. The number of convictions over many years show that this is not a situation where the witness learned from a past mistake. Because his testimony about Robert Ray’s work is central in this case, the matter of his credibility is also critical. Having considered the section 352 arguments raised by the parties, the court concludes that evidence of the four convictions from 1997 to 2010 for felonious possession of stolen property, receipt of stolen property, second degree vehicular burglary, and second degree commercial burglary is relevant to questions of the witness’s credibility and admissible under section 788. If at trial Defendants spend too much time delving into these past convictions, Plaintiffs can object.

However, evidence of the convictions for possession for sale of cannabis, felonious possession of methamphetamine, and felonious possession of a firearm is not admissible because those convictions are much older or do not involve theft and stolen property. Therefore, they are less relevant to credibility. The motion is granted as to that evidence.

Further the motion is granted as to evidence of Sage Ray’s prior arrests, criminal charges and misdemeanor convictions, which are not admissible under section 788 and which would consume an undue amount of trial time and are more prejudicial than probative given the admissible felony conviction evidence.

The motion is granted in part and denied in part without prejudice to objections at trial.

Plaintiffs’ MIL No. 8

Plaintiffs move to exclude evidence of Sage Ray’s drug and alcohol use as irrelevant and unduly prejudicial. Defendants did not oppose this motion. Therefore it is granted.

Triple A’s MIL Re Waste Disposal

Triple A seeks to exclude evidence of how it disposed of waste including at Hunters Point, the location where Robery Ray worked at times. This motion is too vague and therefore denied.

The motion also seeks to exclude evidence of Triple A’s 1992 conviction for waste disposal violations at Hunters Point under Evidence Code section 1101. Plaintiffs did not oppose. The 1992 conviction occurred long ago, and Plaintiffs did not show it has any relevance to this litigation. The motion is granted as to the conviction.

Therefore the motion is granted in part and denied in part without prejudice to objections at trial.

Defendants’ MIL No. 1

Defendant Exxon Mobil Corporation seeks to preclude Sage Ray from testifying that Robert Ray was exposed to asbestos at the Benicia Refinery because Sage Ray’s testimony about when Robert Ray worked at the refinery conflicts with Robert Ray’s testimony about when he started working at the refinery. This is an issue of disputed fact for the jury to decide.

Defendant also seeks to preclude Sage Ray from testifying about Robert Ray’s working conditions as lacking foundation and speculative. However, Sage Ray also worked at the refinery. Therefore, the court cannot conclude as a matter of law that Sage Ray will not be able to establish foundation or personal knowledge about the working conditions at the refinery.

Defendant contends Sage Ray will testify about expert matters. The court cannot predict the content of his testimony at trial. If he is asked a question at trial that calls for an expert opinion, defense counsel should object.

The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 2

Exxon seeks to exclude any reference to Exxon Valdez as irrelevant and unduly prejudicial. Plaintiffs state they do not oppose the motion. Therefore, they should have agreed to a stipulation during their meet and confer. The motion is off calendar. The parties are to agree to a stipulation.

Defendants’ MIL No. 3

Exxon moves to preclude reference to Exxonmobile Oil Corporation, Mobil, and Mobil Oil because that entity has been dismissed. Pursuant to the July 8, 2022 CMO, this motion is deemed made and granted if it is referring to the caption of the complaint except not so as to affect any allocation of fault under Proposition 51. Otherwise, pursuant to the July 8, 2022 CMO, a motion to exclude evidence of the liability of tortfeasors not present at trial is deemed made and denied.

The motion is granted and part and denied in part subjection to objection at trial.

Defendants’ MIL No. 4

Exxon moves to exclude evidence of unauthenticated photographs. If Plaintiffs are not able to authenticate the photographs at trial, then they will not be admitted. However, the court cannot assume at this point that Plaintiffs will not be able to authenticate them.

The motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 5

Exxon seeks to preclude evidence of its size and financial status. This evidence could be relevant to punitive damages, and Exxon has not made a motion to bifurcate punitive damages. Therefore the motion is denied without prejudice to objections at trial.

Defendants’ MIL No. 6

No motion was filed.

Defendants’ MIL No. 7

Exxon seeks to preclude Sage Ray’s deposition testimony because it is incomplete. According to Exxon, Sage Ray injured his head and will not be able to testify for three to four months. Plaintiffs plan to read his deposition testimony. Exxon objects because Sage Ray was not truthful at his deposition about past felonies and Sage Ray was not truthful about when Robert Ray worked at the Benicia Refinery.

At his deposition on July 22, 2021, Sage Ray testified to four felony convictions but not four others. After that deposition, Exxon discovered the four other felony convictions.

A witness can become unavailable for many reasons. For example, an accident, illness, or death can occur at any time. Therefore, a party cannot assume that a witness will always be available to testify at trial. Here, Exxon knew sixteen months ago about Sage Ray’s felony convictions, and at some point thereafter it learned about the additional convictions. If this evidence was critical to Exxon’s case and Exxon wanted to be sure to preserve Sage Ray’s testimony about the additional convictions, it should have sought to reopen his deposition to ask about the additional felony convictions. Exxon could not assume that Sage Ray would be available to appear at the trial.

Exxon also states it did not have key documents when it took Sage Ray’s deposition. Again, after obtaining those key documents, it could have sought to reopen the deposition to ask about Sage Ray about those documents. This is a relatively common occurrence in discovery, where new information is obtained and depositions need to be reopened. Exxon did not show it made any effort at all to reopen the deposition.

Under Evidence Code section 2025.620, subdivision (c)(2)(c), Sage Ray apparently is unable to testify at trial because of physical illness or infirmity. Exxon was present at Sage Ray’s deposition. Therefore under section 2025.620, any party may use his deposition for any purpose.

The motion is denied.

ConocoPhillips and Phillips’ MIL

Plaintiffs filed an opposition to a motion in limine by ConocoPhillips and Phillips, which apparently was about using a party’s prior statement at trial. But not such motion was filed. Because Defendants did not file the motion, the court cannot rule on it.

The moving party is to give notice.