Judge Ronald F. Frank, Case 18TRCV00190 2022-09-27 Tentative Ruling

Judge: Ronald F. Frank, Case: 18TRCV00190, Date: 2022-09-27 Tentative Ruling

Case Number: 18TRCV00190 Hearing Date: September 27, 2022 Dept: 8

KATHLEEN THOMPSON vs THE TERRACES HOA, 18TRCV00190

Tentative Ruling on Plaintiff’s MIL to exclude Defense Expert

Tentative: ARGUE. The limited citations presented to the Court of Mr. Racobs’ expected expert testimony make it unclear as to whether he will be giving standard-of-care opinions or whether he will just be opining that the HOA did nothing wrong. If the former, the Court would be inclined to deny the MIL without prejudice to a Sargon hearing and objections to specific questions at trial. If the latter, the Court would be inclined to grant the MIL.

Analysis: Plaintiff’s Complaint alleges 3 causes of action, the 3rd of which is negligence by the defendant The Terraces HOA. An essential element of any negligence c/a is breach of the relevant standard of care which the Complaint alleges. Plaintiff's MIL argues that Mr. Racobs' opinion as to the HOA standard of care is not based on any “generally accepted or objective standard,” but cites no authority for the proposition that a standard of care must be objective. The motion also argues that Mr. Racobs' opinion is based only on his experience as a lawyer in representing HOAs, but cites no authority for the argument that one cannot qualify as an expert based on experience. Indeed, Evidence Code §801(b) authorizes experts to base their opinion on experience, special knowledge, training and education. Plaintiff’s Reply brief argues that Mr. Racobs did not articulate any standard of care in his deposition, but rather he will be merely opining that because there was no criticism of the HOA in a single expert report he reviewed, the HOA met its standard of care.

An expert may give opinion testimony “[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (Evid.Code, § 801(a).) “That is not to say, however, that the jury need be wholly ignorant of the subject matter of the expert opinion in order for it to be admissible. [Citation.] ... Rather, expert opinion testimony ‘ “will be excluded only when it would add nothing at all to the jury's common fund of information, i.e., when ‘the subject of inquiry is one of such common knowledge that [those with] ordinary education could reach a conclusion as intelligently as the witness.'” (People v. Jones (2012) 54 Cal.4th 1, 60.) “The trial court has broad discretion in deciding whether to admit or exclude expert testimony [citation], and its decision as to whether expert testimony meets the standard for admissibility is subject to review for abuse of discretion.” (People v. McDowell (2012) 54 Cal.4th 395, 426.)

Generally, expert testimony is required to establish the standard of care that applies to a professional. However, an exception exists where the circumstances fall within the realm of common knowledge. (Sanchez v. Brooke (2012) 204 Cal.App.4th 126, 138.) Plaintiff’s MIL seeks to rely on that exception here. The Court has located only one published decision addressing the need for expert testimony in a case concerning HOA liability, but it is a bankruptcy court case (in re Parker 2019 WL 1579758) addressing the reasonableness of attorney’s fees expended. The Court does not believe the common knowledge exception applies here as a matter of law, but that it might apply as a matter of fact. “In negligence cases arising from the rendering of professional services, ... the standard of care against which the professional's acts are measured remains a matter peculiarly within the knowledge of experts. Only their testimony can prove it, unless the layperson's common knowledge includes the

conduct required by the particular circumstances. (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001.)” In the Sanchez case, the Second District affirmed the trial court’s determination that the risk of causing a fire by smoking in bed was within the realm of jurors’ common knowledge, as were protective actions to be taken when an elderly person with limited mobility wishes to smoke in bed.

Here, the question of what steps a reasonable HOA should take to prevent erosion, to address subsidence, and to recognize a developing risk of slippage of a building’s foundation, etc. might not be within the common knowledge of jurors. But it is not clear that Mr. Racobs is going to be giving opinions on those topics. The Court believes that many jurors may lack knowledge of the characteristics of soil and rock on a terraced or hillside construction location and how the geology of the subject property may interact with structures and fortifications built on or into that geology. Geological experts may provide assistance to jurors, and no MIL has been tendered as to their potential trial testimony. However, the defendant here is an HOA, not a geologist. The third cause of action is essentially one for professional mis-management or malpractice; based on what the Court has reviewed in the pleadings and the parties’ moving papers, an expert on HOA management practices could be helpful in enabling the jury to decide what the standard or care is and whether it was breached on the facts presented here. But it is not clear that Mr. Racobs is going to be giving opinions on HOA management practices.

A trial judge “acts as a gatekeeper to exclude expert opinion testimony that 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.” (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 771–772.) To the extent that Mr. Racobs purports to opine on what the law is, or what the CC&Rs say, the Court will sustain objections under this gatekeeper function. But the Court is not inclined pre-trial to exclude him from testifying at all merely because he is an attorney rather than an HOA president or a professor at a university who teaches property management principles. If Mr. Racobs relies on another expert’s report in giving his opinion, the Court will evaluate and rule on objections as to whether that is the sort of information on which an HOA expert would reasonably rely. In doing so, the Court will follow the Sargon Court’s admonition to “determine whether the matter relied on can provide a reasonable basis for the opinion or whether that opinion is based on a leap of logic or conjecture[,] and to conduct[] a ‘circumscribed inquiry’ to rule as to whether the studies and other information cited by experts adequately support the conclusion that the expert's general theory or technique is valid.” (Id. at p. 772.)

The Court will invite argument on this MIL as to whether Mr. Racobs has a theory or technique or methodology that would be subject to Sargon’s standards, or whether he is merely an advocate cloaked in expert’s garments to present closing argument under the guise of expert testimony.