Judge: Robert B. Broadbelt, Case: BC670702, Date: 2023-04-21 Tentative Ruling
Case Number: BC670702 Hearing Date: April 21, 2023 Dept: 53
Superior Court of California
County of Los Angeles – central district
Department
53
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JACOB
BLALOCK, et al, vs. |
Case
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BC670702 |
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Hearing
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April
21, 2023 |
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[Tentative]
Order RE: mOTIONs in limine |
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The court rules on the parties’ motions
in limine as follows.
Plaintiffs’ Motion in Limine No. 1
The court denies plaintiffs’ motion
in limine No. 1.
Plaintiffs’ Motion in Limine No. 2
Defendants do not oppose plaintiffs’
motion in limine No. 2, so long as the order applies to all parties.
The court grants plaintiffs’ motion in limine No. 2 as follows. The court orders that all parties are
prohibited from referring to or introducing evidence of the case titled Celano
v. Zaffos, Los Angeles Superior Court Case No. 19STCV27458, because it is not
relevant and its probative value is substantially outweighed by the probability
that its admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury. (Evid. Code, §§ 350,
352.)
Plaintiffs’ Motion in Limine No. 3
The court denies plaintiffs’ motion
in limine No. 3 because plaintiffs have not met their burden to establish that
they asked defendants/cross-complainants to identify or produce in discovery
“evidence of ‘confidential information’ as defined in Paragraph 9.4 of the
Executive Employment Agreements that was not produced in discovery . . .
.” (Plaintiffs’ motion in limine No. 1,
p. 1:8-10.)
Plaintiffs’ Motion in Limine No. 4
The court denies plaintiffs’ motion in limine
No. 4, without prejudice to plaintiffs’ asserting objections as to authentication
of the three emails at issue (Evid. Code, § 1400) and the secondary evidence
rule (Evid. Code, §§ 1552-1553) based on the evidence presented at trial.
Plaintiffs’ Motion in Limine No. 5
The court denies plaintiffs’ motion in limine
No. 5.
Cross-Complainants’ Motion in Limine No.
1
The court grants in part, and denies
in part, cross-complainants’ motion in limine No. 1 as follows.
The court grants cross-complainants’ motion to exclude the 13 “declarations”
signed by clients whom cross-defendants claim they worked with while employed
by Lear Capital, Inc. (attached as Exhibit 2 to cross-defendant’s opposition and
marked as document Nos. BL001661-BL001673) because they are hearsay.
The court denies cross-complainants’ request to exclude other matters
in their motion in limine No. 1. Although,
based on the general description and discussion in the motion in limine No. 1 of
the email from Kevin DeMerit to Jacob Blalock and Benjamin Novak regarding clients
whom Blaock and Novak claim they worked with while employed by Lear Capital,
Inc., that email would also appear to be hearsay, cross-complainants’ motion is
not accompanied by a declaration that includes specific identification of the
email as required by Los Angeles County Superior Court Local Rule 3.57(a)(1), and
cross-complainants have not attached a copy of the email to their motion.
The court orders that plaintiffs/cross-defendants are prohibited from
referring to or introducing evidence of the 13 “declarations” signed by clients
whom cross-defendants claim they worked with while employed by Lear Capital,
Inc. (document Nos. BL001661-BL001673).
Cross-Complainants’ Motion in Limine No.
2
Based on what is generally described
and discussed in the moving, opposition, and reply papers filed in connection
with cross-complainants’ motion in limine No. 2 (and included in the joint
Motion in Limine Binders lodged by the parties), it appears that the court
would be likely (1) to sustain objections at trial to evidence concerning alleged
theft of trade secrets and confidential information belonging to Wholesale
Direct Metals and Merit Gold by Mike Celano, Charley Chartoff, and Jack Hanney because
it is not relevant and pursuant to Evidence Code section 352, and (2) to
overrule objections at trial to certain statements in a letter by counsel for
Patriot to the effect that the identities of potential customers in the market
for the direct sale of wholesale precious metals are well-known to all companies
in the industry and are therefore not a trade secret because that evidence
would be relevant (if the email makes those general statements).
However, cross-complainants’ motion
in limine No. 2 is not accompanied by a declaration that includes “[s]pecific
identification of the matter alleged to be inadmissible and prejudicial” as
required by Los Angeles County Superior Court Local Rule 3.57(a)(1), cross-complainants
have not attached copies of the materials they claim to be inadmissible and
prejudicial, and they have not specifically identified those materials in their
motion. The court therefore denies
cross-complainants’ motion in limine No. 2, without prejudice to cross-complainants’
asserting objections to such evidence if plaintiffs/cross-defendants seek to
introduce it at trial.
Cross-Complainants’ Motion in Limine No.
3
The court denies cross-complainants’
motion in limine No. 3 because cross-complainants have not met their burden to
show that cross-defendants have engaged in conduct that is a misuse of the
discovery process. (Code Civ. Proc., § 2023.030.)
Defendants’
Motion in Limine No. 1
The court denies defendants’ motion in limine No. 1 because defendants
have not met their burden to establish that the expert opinion testimony of
defendants’ expert witness, Nevin Sanli, should be excluded because it is (1)
based on matter of a type on which an expert may not reasonably rely, (2) based
on reasons unsupported by the material on which the expert relies, or (3)
speculative. (Evid. Code, §§ 801, subd.
(b), 803; Sargon Enterprises, Inc. v. University of Southern California (2012)
55 Cal.4th 747, 771-772).
Defendants’ criticisms of Sanli’s expert opinion testimony go to the
weight of the evidence.
Defendants’ Motion in Limine No. 2
Defendants’ motion in limine No. 2
seeks to exclude the expert opinion testimony of plaintiffs’ expert witness,
Nicholas Carroll.
In their expert witness declaration served
pursuant to Code of Civil Procedure section 2034.260, plaintiffs stated that
“Mr. Carroll is expected to testify regarding (1) defamation; (2) defamatory
and false statements concerning or relating to Plaintiffs and Defendants; and
(3) slander.” (Plaintiffs’ “Designation
of Expert Witness Pursuant to C.C.P. Section 2034 and Decalaration of Adam P.
Zaffos,” dated April 14, 2021, p. 2:12-13.)
As set forth in his expert report,
dated May 1, 2022, and the excerpts of his deposition testimony attached to
plaintiffs’ opposition to this motion, Carroll states that he intends to give expert
opinion testimony concerning (1) harm to reputation, and (2) economic damages
suffered by plaintiffs as a result of the alleged defamatory and false
statement made by defendant John “Jack” Hanney that “plaintiffs were terminated
for ‘churning accounts’ . . . .” (Carroll’s
expert report, p. 2; Carroll Depo, pp. 6:22-7:1.)
First, as to Carroll’s expert
opinion testimony concerning harm to reputation suffered by plaintiffs as a
result of the alleged defamatory and false statement, the court finds that Carroll
is not qualified to testify as an expert on that subject. Although Carroll gives expert opinion
testimony on the meaning of the word “churning” (Carroll’s expert report, pp.
5-6), “that ‘churning’ is a lethal word in that industry” (Carroll Depo., pp.
67:20-68:1), and “churning . . . is the worst insult there is in that industry”
(Carroll Depo., p. 8-20), Carroll has no meaningful experience in the precious
metals industry and has no special knowledge, skill, experience, training, or
education sufficient to qualify him as an expert to testify on the meaning of
“churning” in the precious metals industry or the effect it would have on a
precious metals trader’s reputation in the industry. (Evid.
Code, § 720.) Carroll’s “qualifications
to opine on the claims and economic damages in this case” as set forth on page
4 of his expert report do not make him qualified to give expert opinions concerning
harm to plaintiff’s reputations resulting from the alleged defamatory and false
statement.
Second, as to Carroll’s expert
opinion testimony concerning economic damages suffered by plaintiffs as a
result of the alleged defamatory and false statement, the court finds that Carroll
is not qualified to testify as an expert on that subject, he does not provide an
adequate basis or meaningful analysis to support his opinions, his opinions are
speculative, and plaintiffs did not designate him to testify on that subject in
their expert witness disclosure as required by Code of Civil Procedure section
2034.260, subdivision (c)(2). Carroll
does not provide any substantial basis or foundation for his opinions that (1) it
would be difficult for plaintiffs to find a new job in the precious metals
industry or to open a new metals brokerage company after an allegation of
churning (Carroll expert report, p. 7), (2) “the only reason [plaintiffs] were
not able to hire qualified people was because of this allegation of churning”
(Carroll Depo., pp. 45:24-46:2), (3) after an allegation of churning, “[t]he
continuing financial consequences can and usually will continue for years”
(Carroll’s expert report, p. 7), (4) the economic damages suffered by
plaintiffs as detailed in Nevin Sanli’s expert witness report on damages
“conform to a common pattern of economic damages in business defamation
allegations” (Carroll’s expert report, p. 8), (5) Carroll “would fully expect
the income of Mr. Blalock and Mr. Novak to take an immediate and significant
downturn due to the defamation” (Carroll’s expert report, p. 8), (6) “I would
further expect that it will take several years to bring their new brokerage up
to full profitability” (Carroll’s expert report, p. 8), (7) “the harm to
reputation [as to Blalock] resulted in economic damages to him” (Carroll Depo.,
pp. 30:23-31:1), and (8) the numbers for the economic damages suffered by
plaintiffs as a result of the alleged defamatory and false statement as stated
in plaintiff’s expert Nevin Sanli’s report “are credible” (Carrol Depo., p.
10:11-18). Instead, all of those
opinions are based on speculation. In
addition, Carroll’s opinion that the reason plaintiffs were not able to hire
qualified people was because of the churning allegation is simply repeating
what plaintiffs told him on that point.
(Carroll Depo., p. 72:4-12.)
The court also finds that the probative value of Carroll’s expert
opinion testimony on both subjects is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of time or
(b) create substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury. (Evid. Code, § 352.)
The court therefore grants defendants’ motion in limine No. 2 to
exclude the expert opinion testimony of plaintiffs’ expert witness, Nicholas
Carroll.
The court orders that plaintiffs are prohibited from referring to or
introducing evidence of expert opinion testimony of Nicholas Carroll.
Defendants’ Motion in Limine No. 3
The court grants defendants’ motion
in limine No. 3 because the unpublished Court of Appeal opinion in Maddox v.
Costco Wholesale Corp. (Cal. Ct.App., Nov. 20, 2008, No. B2002218) 2008 WL
4938227, is not relevant, is hearsay, and its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury. (Evid. Code, §§ 350, 352, 1200.)
The court orders that
plaintiffs/cross-defendants are prohibited from referring to or introducing
evidence of the unpublished Court of Appeal opinion in Maddox v. Costco
Wholesale Corp. (Cal. Ct.App., Nov. 20, 2008, No. B2002218) 2008 WL 4938227.
IT
IS SO ORDERED.
DATED:
_____________________________
Robert B. Broadbelt III
Judge of the Superior Court