Judge: Ronald F. Frank, Case: 21TRCV00073, Date: 2023-07-20 Tentative Ruling
Case Number: 21TRCV00073 Hearing Date: November 17, 2023 Dept: 8
| Iman Peykar vs BMW of North America LLC 21TRCV00073 Motions in Limine for Trial | ||||
| MIL No. | Subject of Motion | Tentative | Brief Discussion | |
| P-1 | To exclude Prior Lemon Law Claims by Plaintiff | Argue | The Court is inclined within the bounds of Ev. Code §352 to permit LIMITED evidence of prior buybacks but we will only be trying one case, not 3. Which specific exhibits does BMW intend to use to support this impeachment or modus operandi evidence? Could the parties stipulate to the fact that he had two prior BMWs bought back after filing suit without mention of who his prior counsel were and without discussing the repair histories of the prior cases? Is a 402 hearing needed as Plaintiff suggests? | |
| P-2 | To exclude testimony by Defense Expert Grijalva | Mooted by the taking of his depo | ||
| P-3 | To exclude assertion that Plaintiff's continued use bars recovery or reduced damages | Grant in part | The motion is covered largely by CACI 3230, but defense would not be barred from arguing that continued use bears on substantiality element | |
| P-4 | To exclude evidence of mileage after Plaintiff sought buyback | Grant in part | While the Second District decision in Jiagbogu vs Mercedes largely addresses this issue, the mileage on an RO or vehicle inspection notes by experts should be admissible | |
| P-5 | To exclude arguement that Lemon Law litigation resuilts in increase of price of vehicles | Seek Stip from Defense counsel | ||
| P-6 | To exclude evidence of attorney advertisements | Seek Stip from Defense counsel | ||
| P-7 | To preclude defense counsel from referencing Plaintiff's counsel as a party | Grant in part | Defense stipulates it will not refer to counsel as a party, but the Court will not wholesale preclude any use of a phrase like "Plaintiff and his attorney" in the jury's presence. Defense use of such a phrase such as in closing argument is at their peril, since Plaintiff gets rebuttal closing | |
| P-8 | To preclude evidence or argument that BMW successfully repaired the vehicle | |||
| P-9 | To exclude evidence of Plaintiff's financial condition | Discuss Ev Code 352 balancing | BMW seeks to impeach Plaintiff with statements in his credit application and to argue he could not afford the car | |
| P-10 | To preclude evidence or argument of disclaimer of IWM | Seek Stip from Defense counsel | Motion fails to address what specific evidence is sought be excluded, or what specific evidence is sought to be offered, that is the subject of this motion. No exhibit number, no identified witness, no specific testimony is specified to be excluded. See Kelly v. New West Federal Savings (1996) 49 CA4th 659, 670. | |
| P-11 | To prohibit defenses or testimony not offered at depo | Deny, w/o prej to specific objection to specific Qs | ||
| P-12 | To exclude evidence or argument that one-time repair issues do not "count" | Discuss | The parties disagree on the so-called "aggregate" theory of subsantiality. The Court will generally allow the jury to decide this issue and will alow each side to make their arguments. But Murillo, 17 Cal.4th 785, 990 noted that the Act gives recourse for either the same defect repeatedly or is out of service for cumulative repairs for an extended time. The presumption also evidences the alternative of an aggregate theory with is 30-day priong | |
| P-13 | To exclude evidence of abuse, neglect or lack of maintenance | Seek Stip from Defense counsel | ||
| P-14 | To exclude evidence of attorney's fees, costs and fees | Discuss | This issue is often addressed by a jury instruction so that jurors do not mistakenly assume counsel will recover a percentage of what is awarded | |
| P-15 | To exclude argument regarding BMW's ability to repair the vehicle | Discuss | Does BMW intend to offer such testimony or argument? Or is this an Ibrahim issue? | |
| P-16 | To exclude facts, opinions, or conclusions not expressed in PMK or expert depo | Deny, w/o prej to specific objection to specific Qs | Motion fails to address what specific evidence is sought be excluded, or what specific evidence is sought to be offered, that is the subject of this motion. No exhibit number, no identified witness, no specific testimony is specified to be excluded. See Kelly v. New West Federal Savings (1996) 49 CA4th 659, 670. | |
| P-17 | ||||
| P-18 | To exclude evidence not contained in Defendant's formal discovery responses | Deny, w/o prej to specific objection to specific Qs | Motion fails to address what specific evidence is sought be excluded, or what specific evidence is sought to be offered, that is the subject of this motion. No exhibit number, no identified witness, no specific testimony is specified to be excluded. See Kelly v. New West Federal Savings (1996) 49 CA4th 659, 670. | |
| P-19 | To exclude lay witnesses | Grant | Evid Code section 777 requires witness exclusion on request of either party | |
| P-20 | To exclude evidence of BMW's alleged offer to arbitrate this matter | Seek Stip from Defense counsel | ||
| D-1 | To exclude TSBs and Recalls unrelated to Plaintiff's claimed defects | Discuss | Motion fails to address what specific evidence is sought be excluded, or what specific evidence is sought to be offered, that is the subject of this motion. No exhibit number, no identified witness, no specific testimony is specified to be excluded. See Kelly v. New West Federal Savings (1996) 49 CA4th 659, 670. | |
| D-2 | To exclude claim by Plaintiff of emotional distress | Grant in part | The motion essentially seeks compliance with controlling precedent, and the recoverability of emotional distress damages like punitive daamges can be addressed by jury instruction, but Plaintiff is permitted by Lundy to discuss how the claimed defects were substantial to him | |
| D-3 | To exclude evidence of complaints by other customers about other vehicles | Discuss; | admissibility depends on whether BMW denies existence of a defect, foundation for evidence Plaintiff intends to offer, and status of evidence ordered by the Court to be produced per Motion to Compel, etc. No exhibit number, no identified witness, no specific testimony is specified to be excluded. See Kelly v. New West Federal Savings (1996) 49 CA4th 659, 670. | |
| D-4 | To exclude evidence of defects that were (A) never presented for repair, or (B) were presented only 1 time | Grant as to A, deny as to B | The jury is entitled to see and hear the totality of the repair history, even defects presented and fixed in a single attempt. Jury instructions will address how the jury can assess such evidence. This is not a Silvio case | |