Judge: Nathan Vu, Case: 2018-01007728, Date: 2022-11-28 Tentative Ruling

Please Note: The hearing on this matter is scheduled for 8:30 A.M.

Motion to Exclude New Witnesses

Defendants Jeremy J. Alberts’; Law Offices of Jeremy J. Alberts, APC, dba the Alberts Firm’s; and Christian F. Paul’s motion to exclude potential witnesses Elizabeth Mora-Rodriguez and David Murray is DENIED without prejudice.

Defendants Jeremy J. Alberts; Law Offices of Jeremy J. Alberts, APC, dba the Alberts Firm; and Christian F. Paul move to any and all evidence, references to evidence, testimony or argument relating to the testimony designated witnesses Elizabeth Mora-Rodriguez (erroneously identified as Elizabeth Rodriquez) and David Murray.

Plaintiff Nagi Iskander, individually and as Trustee of the Nagi Iskander and Amal Iskander AB Living Trust dated March 10, 2010 (Plaintiff), and Defendants Jeremy J. Alberts; Law Offices of Jeremy J. Alberts, APC, dba the Alberts Firm; and Christian F. Paul (Defendants) do not dispute the basic facts of this dispute:

Plaintiff had previously identified Oliver Mujica as the person most qualified to testify in this matter on behalf of the City of San Bernardino (City). Mr. Mujica’s deposition was taken and completed on 08/27/2020.

More than two years later, on 10/18/2022, Plaintiff served a Notice of Additional Witnesses stating that Elizabeth Mora-Rodriguez and David Murray would appear as trial witnesses in place of Mr. Mujica. Ms. Mora-Rodriguez and Mr. Murray are City employees who work in the same department as Mr. Mujica. On 11/16/2022 and 11/17/2022, Defendants took the depositions of Ms. Mora-Rodriguez and Mr. Murray.

Defendants first contend that Plaintiff improperly disclosed new witnesses in violation of the Civil Procedure Code and the court’s scheduling order. Defendants cite to Civil Procedure Code section 2034.210 in support of this proposition.

Section 2034.210 provides that any party may demand a mutual and simultaneous exchange of expert witnesses expected to offer testimony at trial. (Code Civ. Proc., §§ 2034.210 & 2034.260.) Upon motion, the trial court shall exclude the opinion of an expert if the designating party “unreasonably failed” to list that witness as an expert during the initial exchange. (Code Civ. Proc., § 2034.300, subd. (a).) However, because Ms. Mora Rodriguez and Mr. Murray are not expert witnesses, section 2034.300(a) is inapplicable and does not serve as a basis for excluding the witnesses.

In addition, Plaintiff has shown good cause for not disclosing the identities of Ms. Mora Rodriguez and Mr. Murray earlier. Plaintiff intended to call Mr. Mujica at trial but he no longer works for the City and is unavailable. Plaintiff designated Ms. Mora-Rodriguez and Mr. Murray to testify instead of Mr. Mujica not to gain any unfair advantage over Defendants, but because Plaintiff had little other choice.

Any prejudice to Defendants is mitigated by the fact that Defendants have now been able to depose both Ms. Mora-Rodriguez and Mr. Murray. In fact, as Defendants concede, Ms. Mora-Rodriguez and Mr. Murray have very limited knowledge of the facts relating to this case and are certainly less knowledgeable than Mr. Mujica.

Defendants now contend that the testimony of Ms. Mora-Rodriguez and Mr. Murray must be excluded because their testimony would cause confusion due to their lack of knowledge. Evidence Code section 352 permits the court to exercise its discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time or create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evidence Code, § 352.)

However, Defendants have not carried their burden to show how or why the testimony of Ms. Mora-Rodriguez or Mr. Murray would create a substantial danger of confusing the issues. The argument of counsel, particularly as to what may happen at trial, is not evidence. (See Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1173.) However, Defendants may renew their objection at trial if the testimony of either Ms. Mora-Rodriguez or Mr. Murray leads to an undue consumption of time or creates a substantial danger of undue prejudice, confusing the issues, or misleading the jury.

Plaintiff shall give notice of this ruling.