Judge Teresa A. Beaudet, Case Number: 19STCV19520, Date: 2025-05-06 Tentative Ruling

MIKHAEL ABDELNOUR,

Plaintiff,

vs.

WALNUT MOBILE HOME PARK LTD, et al.,

Defendants.

Case No.:

19STCV19520

Hearing Date:

May 6, 2025

Hearing Time: 8:30 a.m.

[TENTATIVE] ORDER RE:

PLAINTIFF’S BRIEF RE: EXCLUSION OF SOILS OPINIONS OF DEFENDANT’S EXPERT GLENN TOFANI

On June 5, 2019, Plaintiff Mikhael Abdelnour (“Plaintiff”) filed a complaint against Defendants Walnut Mobile Home Park, Ltd and DOES 1 through 10, inclusive, alleging causes of action for (1) Trespass to Land, (2) Negligence, and (3) Injunctive Relief.

The complaint alleges, inter alia, that “[o]n April 24, 2018, [P]laintiff . . . bought the home located at 9042-9044 Painter Ave in Whittier California (the ‘PROPERTY’).” (Compl., ¶ 9.) Defendants own a mobile home park, which is located adjacent to Plaintiff’s property and both share a common boundary line and fence. (Compl., ¶ 8.) Plaintiff alleges that Defendants “have several trees that have roots causing damage to Plaintiff’s properties.” (Compl., ¶ 13.)

On January 13, 2020, Defendant Walnut Mobile Home Park (erroneously sued as Walnut Mobile Home Park, Ltd.) (“Defendant”) filed its answer to the complaint.

On March 4, 2025, non-jury trial in this action commenced. (3/4/25 Minute Order.)

On March 18, 2025, at trial, expert Glenn Tofani (“Tofani”) was sworn and testified. (3/18/25 Minute Order.)

On March 20, 2025, Mr. Tofani resumed his testimony from March 18, 2025. (3/20/25 Minute Order.) Relevantly, the Court indicated that Defendant’s “[E]xhibit 78 (Expansion Index Testing Results) is marked for identification only.” (3/20/25 Minute Order.)

On April 22, 2025, Plaintiff filed the instant motion requesting that the Court “exclude the testimony of Defendant’s expert witness, Glen[n] Tofani, regarding soil expansion index testing results and any opinions derived from those results.” (Mot. at p. 2:6-9.) Plaintiff indicates that “[d]uring trial, Mr. Tofani testified about soil expansion testing that he neither conducted himself nor personally supervised, with regard to soil samples that he didn’t collect.” (Mot. at p. 2:9-11.) Plaintiff contends that Mr. Tofani “merely relayed the results of tests performed by a laboratory technician named Geoffrey Stokes, who was never designated as an expert witness (nor percipient witness) and did not testify at trial.” (Mot. at p. 2:12-14.) Thus, Plaintiff contends that such testimony violates the hearsay rule as set forth in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). Plaintiff seeks to “exclude Mr. Tofani’s testimony regarding soil expansion index testing results (Exhibit 78) and any opinions that rely on those results, including the opinion that the soil at the subject property has an expansion index of 68 and is ‘moderately expansive’ and is a cause of the damage to Plaintiff’s rear house.” (Mot. at p. 9:7-11.)

In support of the motion, Plaintiff contends that: (1) the Court has authority to strike inadmissible expert testimony; (2) Mr. Tofani’s testimony regarding soil expansion testing results violates the hearsay rule under People v. Sanchez; (3) this Court has already applied this same legal principle to exclude similar testimony from Plaintiff’s expert; (4) Mr. Tofani’s opinions based on the soil expansion testing results should be excluded; and (5) allowing Mr. Tofani’s testimony would be prejudicial and inconsistent with the Court’s prior ruling.

On opposition, Defendant asserts that (1) experts may rely on laboratory testing performed by others under industry standards; (2) the expansion testing results were properly admitted as a business record; (3) Sanchez does not preclude expert reliance on admitted business records in civil cases; (4) Mr. Tofani’s opinions are based on his independent professional evaluation; and (5) Plaintiff’s analogy to Ground Penetrating Radar (GPR) exclusion is misplaced.

On reply, Plaintiff contends that (1) the business records exception does not cure the Sanchez problem; (2) Mr. Tofani did not personally conduct or supervise the soil testing; (3) Exhibit 78 was only marked for identification and was not admitted into evidence; (4) the Court has already applied this same legal principle to exclude similar testimony; and (5) Mr. Tofani’s opinions based on the soil expansion testing results should be excluded.

During trial, a party may bring a motion to resolve evidentiary issues. (Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 669.) “[U]nder Evidence Code sections 801, subdivision (b), and 802, the trial court 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. Other provisions of law, including decisional law, may also provide reasons for excluding expert testimony.” (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 771-72.)

“[A] hearsay statement is one in which a person makes a factual assertion out of court and the proponent seeks to rely on the statement to prove that assertion is true. Hearsay is generally inadmissible unless it falls under an exception.” (Sanchez, supra, 63 Cal.4th 665, 674.) “Documents like . . . reports . . . are often hearsay because they are prepared by a person outside the courtroom and are usually offered to prove the truth of the information they contain.” (Ibid.) Moreover, a document may contain multiple levels of hearsay. (Sanchez, supra, 63 Cal.4th 665, 674-75.) Unless an exception is shown for each level of hearsay, multiple hearsay cannot be admitted into evidence. (Id. at p. 675.)

As stated in Sanchez, supra, 63 Cal.4th 665, 675, “[w]hile lay witnesses are allowed to testify only about matters within their personal knowledge (Evid. Code, § 702, subd. (a)), expert witnesses are given greater latitude.” Thus, as articulated by the Sanchez court:

“A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. (Evid. Code, § 720, subd. (a).) An expert witness may express an opinion on a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. (Evid. Code, § 801, subd. (a).) In addition to matters within their own personal knowledge, experts may relate information acquired through their training and experience, even though that information may have been derived from conversations with others, lectures, study of learned treatises, etc.”

“The hearsay rule has not traditionally barred an expert’s testimony regarding his general

knowledge in his field of expertise.” (Sanchez, supra, 63 Cal.4th 665, 676.) Thus, “an expert’s testimony concerning his general knowledge, even if technically hearsay, has not been subject to exclusion on hearsay grounds.” (Ibid.) However, “an expert has traditionally been precluded from relating case-specific facts about which the expert has no independent knowledge.” (Ibid. [emphasis in original].) “Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried.” (Ibid.)

“If an expert testifies to case-specific out-of-court statements to explain the bases for his

opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay. Like any other hearsay evidence, it must be properly admitted through an applicable hearsay exception. Alternatively, the evidence can be admitted through an appropriate witness and the expert may assume its truth in a properly worded hypothetical question in the traditional manner.”

Initially, the Court notes that Plaintiff did not provide any trial transcripts with either the moving or reply papers. However, Defendant has provided portions of trial transcripts with the opposition brief. Said transcripts are attached to the declaration of Dianna Manukyan (“Manukyan”) in support of the opposition. While Defendant requests that the Court deny Plaintiff’s motion based on the lack of trial transcripts (Opp’n at p. 2:10-12), the Court will address the motion on the merits.

At trial, on March 11, 2025, David Pickard testified that he knew what shrinkage cracks in soil were, and that he understood the connection between the amount of dirt or soil cracking and clay soil content. (Manukyan Decl., Exh. A at p. 1273:11-28 and 1274:8-16.) Mr. Pickard testified that clay soil is an expansive soil, and that an expansive soil expands when it gets wet and shrinks when it dries out. (Manukyan Decl., Exh. A at p. 1274:8-16.)

On March 18, 2025, at trial, Mr. Tofani testified that he is the Senior Principal Engineer and President of Geokinetics. (Manukyan Decl., Exh. B at p. 2447:23-26.) Mr. Tofani testified that he is a licensed general contractor in the State of California and has some specialty contracting licenses in the State of California. (Manukyan Decl., Exh. B. at p. 2448:23-28.) Mr. Tofani is a licensed civil engineer. (Manukyan Decl., Exh. B at p. 2448:28-2449:13.)

On March 20, 2025, at trial, Mr. Tofani testified as to his investigation of the soil at the Property. (Manukyan Decl., Exh. C at p. 2709:10-16.) Mr. Tofani testified that he looked at the soil conditions that were evident in the photographs he reviewed. (Manukyan Decl., Exh. C at p. 2709:12-14.) Further, Mr. Tofani stated that he was provided three soil samples from Mr. Asakawa which he tested to measure the expansion characteristics of that soil. (Manukyan Decl., Exh. C at p. 2709:14-16.) Mr. Tofani received the soil samples in three Ziploc bags, which were labeled, and they were sealed when he received them. (Manukyan Decl., Exh. C at p. 2709:19-2710:1.) Mr. Tofani found that the lack of preferential orientation of the cracks, and the cracks not extending radially from the tree, was more consistent with an expansive soil scenario being the cause of the distress. (Manukyan Decl., Exh. C at p. 2729:26-2730:4.) The testing on the soil samples is called an Expansion Index Test, which was performed using protocols described in the Uniform Building Code. (Manukyan Decl., Exh. C at p. 2733:6-14.)

The Expansion Index Test is an industry standard test to check for clay soil or expansive soil in the geotechnical engineering community. (Manukyan Decl., Exh. C at p. 2737:6-10.) When asked about his involvement in testing the soil samples in this case, Mr. Tofani clarified that the test was performed by his laboratory and laboratory people. (Manukyan Decl., Exh. C at p. 2737:15-20.) Although he did not perform the testing himself, Mr. Tofani testified that he was present periodically when the test was being performed. (Manukyan Decl., Exh. C at p. 2737:20-22.)

Mr. Tofani testified as to the qualifications of the laboratory personnel to conduct such testing. (Manukyan Decl., Exh. C at p. 2738:2-13.) Geoffrey Stokes (“Stokes”) was the person who performed the testing. (Manukyan Decl., Exh. C at p. 2738:14-16.) The testing was performed, and the results were documented. (Manukyan Decl., Exh. C at p. 2738:18-20.) The test results were prepared by Mr. Stokes. (Manukyan Decl., Exh. C at p. 2738:27-2739:1.) Mr. Tofani, when asked, answered in the affirmative that the Expansion Index Testing Results (Exhibit 78) were prepared in the normal course of his business as a geotechnical civil engineering firm. (Manukyan Decl., Exh. C at p. 2739:2-5.) When defense counsel moved to admit Exhibit 78 into evidence, Plaintiff’s counsel objected to the admission of such exhibit on the grounds that it lacked foundation and was hearsay. (Manukyan Decl., Exh. C at p. 2739:9-11.) Plaintiff’s counsel indicated that Mr. Tofani was not the person who performed the test. (Manukyan Decl., Exh. C at p. 2739:11-12.) The Court stated that it did not think it was a hearsay problem because it is a business record. (Manukyan Decl., Exh. C at p. 2744:5-6.) The Court, however, indicated that it saw a problem under Sanchez and the Court’s tentative was to grant the objection and to sustain the objection, subject to briefing by the parties. (Manukyan Decl., Exh. C at p. 2744:15-20.)

Mr. Tofani testified as to his familiarity with Exhibit 78 and then stated that it is a standard form that is prepared by his office to document the soil densities, moisture levels, and the type and the results of the expansion index test. (Manukyan Decl., Exh. C at p. 2750:1-10.) The information is recorded at the completion of the test by reading a dial gauge that is on top of the load frame and writing that number down. (Manukyan Decl., Exh. C at p. 2750:11-16.) Mr. Tofani testified that the number on the dial gauge would have been 0.068 inches. (Manukyan Decl., Exh. C at p. 2750:17-19.) Mr. Tofani testified that the expansion index was 68, which is the number that was written down on the form. (Manukyan Decl., Exh. C at p. 2750:26-2751:1.) According to the range described in the Uniform Building Code, Mr. Tofani testified that such classification is moderately expansive. (Manukyan Decl., Exh. C at p. 2751:17-24.) Mr. Tofani visually observed the soil samples received from Mr. Asakawa as he took them out of the bags they came in and examined them. (Manukyan Decl., Exh. C at p. 2758:14-18.) Mr. Tofani testified that, based on his visual examination of the samples, it was clear from the examination that the soil was expansive. (Manukyan Decl., Exh. C at p. 2758:19-25.)

C. Exclusion of Mr. Tofani’s Testimony Regarding Soil Expansion Index Testing Results

Initially, the Court will address the contention in the opposition that the Expansion Index Testing Results (Exhibit 78) were properly authenticated as a business record and therefore constitutes an exception to the hearsay rule. (Opp’n at p. 1:27-2:2.)

“Business records are defined as writings made in the regular course of business, at or near the time of the event, and created through sources of information and a method of preparation reflecting its trustworthiness.” (People v. McVey (2018) 24 Cal.App.5th 405, 415.) “When a record is not made to facilitate business operations but, instead, is primarily created for later use at trial, it does not qualify as a business record.” (Ibid.)

Here, the Expansion Index Testing Results were prepared in the normal course of Mr. Tofani’s Geokinetics business. (Manukyan Decl., Exh. C at p. 2739:2-5.) The information was recorded at the completion of testing. (Manukyan Decl., Exh. C at p. 2750:11-16.) Mr. Tofani is the Principal Engineer and President of Geokinetics. (Manukyan Decl., Exh. B at p. 2447:23-26.) Testing was performed pursuant to the Uniform Building Code. (Manukyan Decl., Exh. C at p. 2733:9-14.) Thus, the Court finds that the Expansion Index Testing Results are admissible under the business record exception to the hearsay rule.

Plaintiff argues that the business records exception does not cure the Sanchez problem. (Reply at pp. 3-4.) The Court notes that Mr. Tofani testified to a numerical value concerning soil testing results done by his company, periodically in his presence, which was set forth in the Expansion Index Testing Results, and what the value meant pursuant to the Uniform Building Code. Mr. Tofani therefore relayed case-specific facts as such testimony was related “to the particular events and participants alleged to have been involved in the case . . . .” (Sanchez, supra, 63 Cal.4th 665, 676.) Sanchez held that “an 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.” (Sanchez, supra, 63 Cal.4th 665, 686 [emphasis in original].) Here, the case-specific facts contained in the Expansion Index Testing Results were generated by Mr. Tofani’s company and are within the scope of the business records exception to the hearsay rule. Thus, while the Expansion Index Testing Results are hearsay, Mr. Tofani testified to facts allowing the document and the result to come into evidence under the business records exception to the hearsay rule. It follows that Mr. Tofani is not prohibited from relaying the Expansion Index Testing Results under Sanchez to form his expert opinion. The Court deferred ruling on the admissibility of Exhibit 78, but now rules that it is admitted.

Further, even if the Expansion Index Testing Results did not fall within the scope of the business records exception to the hearsay rule, Mr. Tofani testified that based on a visual evaluation, he determined that the soil was expansive. Such opinion is based on Mr. Tofani’s own visual evaluation and is based on his own firsthand observations. (Sanchez, supra, 63 Cal.4th 665, 686.) For that reason, that testimony also is admissible.

For the foregoing reasons, the Court DENIES Plaintiff’s motion to exclude the testimony of Glenn Tofani regarding soil expansion index testing results and any opinions flowing therefrom.

Superior Court of California

County of Los Angeles

Department 50