Judge: Robert B. Broadbelt, Case: BC691437, Date: 2024-08-07 Tentative Ruling
Case Number: BC691437 Hearing Date: August 7, 2024 Dept: 53
Superior Court of California
County of Los Angeles – central district
Department
53
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FRANK
DEPTO, vs. |
Case
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BC691437 |
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Hearing
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August
7, 2024 |
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[Tentative]
Order RE: mOTIONs in limine |
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The court rules on plaintiff’s and defendants’
motions in limine as follows.
Plaintiff’s Motion in Limine No. 1
The court grants in part, and denies
in part, plaintiff’s motion in limine no. 1 as follows.
The court grants plaintiff’s motion to exclude evidence of unemployment
insurance benefits received by plaintiff.
“[I]n computing the damages awarded to a wrongfully discharged employee
in an action for breach of contract, unemployment insurance benefits ‘are not
deductible as compensation received from other employment in mitigation of
damages.’” (Monroe v. Oakland Unified
School District of Alameda County (1981) 114 Cal.App.3d 804, 810 [citation
omitted].) Thus, (1) evidence concerning
unemployment insurance benefits received by plaintiff is not relevant (Evid.
Code, § 350), and (2) the court exercises its discretion to exclude such
evidence because its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of time
and (b) create substantial danger of undue prejudice, of confusing the issues,
or of misleading the jury (Evid. Code, § 352).
The court orders that defendants shall not make reference to, or
introduce evidence of, unemployment insurance benefits received by plaintiff.
The court denies all other relief requested in plaintiff’s motion in
limine no. 1, including plaintiff’s request to exclude evidence of plaintiff’s
pension. (Fourth Amended Complaint,
filed May 17, 2023, ¶ 14.o [placing plaintiff’s pension at issue].)
Plaintiff’s Motion in Limine No. 2
The court grants plaintiff’s motion
in limine no. 2 because (1) evidence of plaintiff’s ownership of, and income
derived from, rental properties is not relevant (Evid. Code, § 350), and (2)
the court exercises its discretion to exclude such evidence because its
probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time and (b) create
substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury (Evid. Code, § 352).
The court orders that defendants shall not make reference to, or
introduce evidence of, plaintiff’s ownership of, and income derived from,
rental properties.
Plaintiff’s Motion in Limine No. 3
The court grants plaintiff’s motion
in limine no. 3 because (1) evidence of plaintiff’s divorce is not relevant
(Evid. Code, § 350), and (2) the court exercises its discretion to exclude such
evidence because its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of time
and (b) create substantial danger of undue prejudice, of confusing the issues,
or of misleading the jury (Evid. Code, § 352).
The court orders that defendants shall not make reference to, or
introduce evidence of, plaintiff’s divorce.
Plaintiff’s Motion in Limine No. 4
The court grants plaintiff’s motion
in limine no. 4 because (1) evidence of plaintiff’s alleged intoxication is not
relevant (Evid. Code, § 350), and (2) the court exercises its discretion to
exclude such evidence because its probative value is substantially outweighed
by the probability that its admission will (a) necessitate undue consumption of
time and (b) create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury (Evid. Code, § 352).
The court orders that defendants shall not make reference to, or
introduce evidence of, plaintiff’s alleged intoxication.
Plaintiff’s Motion in Limine No. 5
Plaintiff has withdrawn his motion
in limine no. 5.
Plaintiff’s Motion in Limine No. 6
The court denies plaintiff’s motion
in limine no. 6.
Plaintiff’s Motion in Limine No. 7
The court denies plaintiff’s motion
in limine no. 7 because it was not timely filed and served with sufficient
notice required by Code of Civil Procedure section 1005, subdivision (b), to be
noticed for hearing at the July 18, 2024 Final Status Conference, as required
by the court’s Trial Preparation Order, filed November 20, 2020 (page 7:2-5).
Plaintiff’s Motion in Limine No. 8
The court denies plaintiff’s motion
in limine no. 8 because (1) it was not timely filed and served with sufficient
notice required by Code of Civil Procedure section 1005, subdivision (b), to be
noticed for hearing at the July 18, 2024 Final Status Conference, as required
by the court’s Trial Preparation Order, filed November 20, 2020 (page 7:2-5),
and (2) defendants did not fail to comply with the requirements of Code of
Procedure section 2034.260 since no party made a timely demand for exchange of
expert witness information pursuant to Code of Procedure sections 2034.210-2034.230.
Defendants’
Motion in Limine No. 1
The court denies defendants’ motion in limine no. 1 because it is not
accompanied by a declaration that complies with the requirements of Los Angeles
County Superior Court Local Rules, Rule 3.57(a)(2), without prejudice to defendants’
asserting objections to evidence that is the subject of the motion if plaintiff
attempts to introduce or admit such evidence at trial.
Defendants’ Motion in Limine No. 2
The court grants in part, and denies in part, defendants’ motion in
limine no. 2 as follows.
The court grants defendants’ request for an order pursuant to Civil
Code section 3295, subdivision (d) as follows.
The orders that plaintiff is precluded from making reference to, or
introducing evidence of, defendants’ profits or financial condition unless and
until after (1) the court enters an order allowing an amended complaint
claiming punitive or exemplary damages pursuant to Code of Civil Procedure
section 425.14, and (2) the trier of fact returns a verdict for plaintiff
awarding actual damages and finds that defendants are guilty of malice,
oppression, or fraud in accordance with Civil Code section 3294. (Civ. Code, § 3295, subd. (d).)
The court denies all other relief requested by defendants in this
motion because it is not accompanied by a declaration that complies with the
requirements of Los Angeles County Superior Court Local Rules, Rule 3.57(a)(2),
without prejudice to defendants’ asserting objections to evidence that is the
subject of the motion if plaintiff attempts to introduce or admit such evidence
at trial.
Defendants’ Motion in Limine No. 3
The court denies defendants’ motion in limine no. 3 because it is not
accompanied by a declaration that complies with the requirements of Los Angeles
County Superior Court Local Rules, Rule 3.57(a)(2), without prejudice to
defendants’ asserting objections to evidence that is the subject of the motion
if plaintiff attempts to introduce or admit such evidence at trial.
Defendants’ Motion in Limine No. 4
The court denies defendants’ motion in limine no. 4 because it is not
accompanied by a declaration that complies with the requirements of Los Angeles
County Superior Court Local Rules, Rule 3.57(a)(2), without prejudice to
defendants’ asserting objections to evidence that is the subject of the motion
if plaintiff attempts to introduce or admit such evidence at trial.
Defendants’ Motion in Limine No. 5
The court denies defendants’ motion in limine no. 5 because it is not
accompanied by a declaration that complies with the requirements of Los Angeles
County Superior Court Local Rules, Rule 3.57(a)(2), without prejudice to
defendants’ asserting objections to evidence that is the subject of the motion
if plaintiff attempts to introduce or admit such evidence at trial.
Defendants’ Motion in Limine No. 6
The court denies defendants’ motion in limine no. 6 because it is not
accompanied by a declaration that complies with the requirements of Los Angeles
County Superior Court Local Rules, Rule 3.57(a)(2), without prejudice to
defendants’ asserting objections to evidence that is the subject of the motion
if plaintiff attempts to introduce or admit such evidence at trial.
Defendants’ Motion in Limine No. 7
The court denies defendants’ motion in limine no. 7 because it is not
accompanied by a declaration that complies with the requirements of Los Angeles
County Superior Court Local Rules, Rule 3.57(a)(2), without prejudice to
defendants’ asserting objections to evidence that is the subject of the motion
if plaintiff attempts to introduce or admit such evidence at trial.
Defendants’ Motion in Limine No. 8
The court grants in
part, and denies in part, defendants’
motion in limine no. 8 as follows.
The court denies defendants’
requests for an order (1) precluding Plaintiff’s Second Amended Notice to
Produce Witnesses and Documents at Trial pursuant to Code of Civil
Procedure section 1987, subdivision (b), and (2) precluding the trial subpoenas
of those witnesses no longer employed by defendants because (1) defendants have
not presented evidence to support their request for those orders, and (2) those
requests appear to have been rendered moot by the parties’ agreement limiting the
witnesses whom defendants are going to produce to testify at trial pursuant to plaintiff’s
section 1987 notice and trial subpoenas.
Pursuant to the parties’ agreement, the court orders that the only
witnesses whom defendants are required to produce to testify at trial pursuant
to plaintiff’s section 1987 notice and trial subpoenas are Joanna Lewandowski,
Susan Bjelajac, Mayora Hiney, Jose Manuel Pacheco, Kathryn Oliver, and Crystal
Pinkofsky.
The court grants in part defendants’
request requiring advanced notice of testimony by school employees as follows.
The court orders that plaintiff’s
and defendants’ counsel shall give each other at least 24 hours’ notice of the
identify of witnesses they intend to call to testify at trial, and defendants
shall produce the six witnesses listed above on 24 hours’ notice.
Defendants’ Motion in Limine No. 9
The court grants defendants’ motion in limine no. 9 in part, and
denies it in part, as follows.
The court grants defendants’ motion to exclude the expert opinion
testimony of plaintiff’s expert witness, Mark Falkenhagen, to the extent that
he assumed that plaintiff’s annual income would increase at a rate of 3 percent
and that he calculated economic loss based on that growth rate because Falkenhagen’s
opinion is based on reasons unsupported by the material on which he relies and
is speculative. (Sargon Enterprises,
Inc. v. University of Southern California (2012) 55 Cal.4th 747,
771-772.) The evidence on which Falkenhagen
testified in his deposition that he bases this opinion does not support his
assumption of a 3 percent growth rate for plaintiff’s salary. (Falkenhagen Depo., April 22, 2024, pp. 25:4-26:5.)
The court denies defendants’ motion as to all other requested relief because
defendants have not met their burden to establish that the other expert opinion
testimony of Falkenhagen should be excluded on the grounds that (1) it is based
on matter of a type on which an expert may not reasonably rely, based on
reasons unsupported by the material on which the expert relies, or speculative (Evid.
Code, §§ 801, subd. (b), 803; Sargon Enterprises, Inc. v. University of
Southern California (2012) 55 Cal.4th 747, 771-772), or (2) any
case-specific facts asserted in hearsay statements on which Falkenhagen bases
his opinions will not be independently proven by competent evidence (People
v. Sanchez (2016) 63 Cal.4th 665, 686 [“expert cannot . .
. relate as true case-specific facts asserted in hearsay statements, unless
they are independently proven by competent evidence or are covered by a hearsay
exception”], without prejudice to defendants’ asserting objections to
Falkenhagen’s testimony based on the evidence that is introduced and admitted
at trial.
Defendants’ Motion in Limine No. 10
The court grants defendants’ motion in limine no. 10 because (1)
evidence regarding any breach of an express oral contract or an implied-in-fact
contract not to terminate plaintiff’s employment without good cause is not
relevant since the court sustained defendants’ demurrer to such causes of
action without leave to amend in its May 30, 2019 order (Evid. Code, § 350),
and (2) the court exercises its discretion to exclude such evidence because its
probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time and (b) create
substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury (Evid. Code, § 352).
The court orders that defendants shall not make reference to, or
introduce evidence of, any breach of an express oral contract or an
implied-in-fact contract not to terminate plaintiff’s employment without good
cause. However, this order does not preclude
plaintiff from presenting evidence that he believed his employment with defendants
was a “dream job” or that he wanted or intended to continue working at his job with
defendants in the future because that evidence is relevant to prove or disprove
other disputed facts that are of consequence to the determination of the action,
including plaintiff’s claims for damages.
Defendants’ Motion in Limine No. 11
The court denies defendants’
motion in limine no. 11 because it is not accompanied by a declaration that
complies with the requirements of Los Angeles County Superior Court Local
Rules, Rule 3.57(a)(2).
IT
IS SO ORDERED.
DATED:
_____________________________
Robert B. Broadbelt III
Judge of the Superior Court