Judge Theresa M. Traber, Case 20STCV17139 2022-09-28 Tentative Ruling

Judge: Theresa M. Traber, Case: 20STCV17139, Date: 2022-09-28 Tentative Ruling

Case Number: 20STCV17139 Hearing Date: September 28, 2022 Dept: 47

WILLIAM HANDEL, et al. vs OVATION FERTILITY, Case No. 20STCV17139

Defendants’ MIL #1 – to exclude testimony of Plaintiff’s expert Bill Hartzer from being offered at trial

TENTATIVE: Denied, without prejudice to specific objections being asserted at trial to specific question about the expert opinions offered by Mr. Hartzer.

The interpretation of a contract is a judicial function designed to give effect to the mutual intentions of the parties at the time the contract was executed. (Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1125-1126.) “Ordinarily, the objective intent of the contracting parties is a legal question determined solely by reference to the contract's terms.” (Ibid. [Citation omitted].) While the Court may not consider extrinsic evidence to contradict the clear and unambiguous terms of a written contract, such evidence is admissible to interpret an agreement where a material term is ambiguous. (Brown v. Goldstein (2019) 34 Cal. App. 5th 418, 432-433.) Such evidence may include testimony about the parties’ intentions and goal in entering into the contract, their correspondence about the contract, and their conduct in negotiating and implementing the contract, as well as their own testimony about their business experiences with similar contracts as well as expert testimony about industry standards. While neither Mr. Hartzer nor Defendants’ corresponding expert may testify about the intent of the parties or the proper interpretation of the parties’ agreement, they may provide expert opinions about how the terms of the contract are usually interpreted and applied in the relevant business community and the industry standards for drafting similar agreements and/or for implementing similar contracts.

An expert may also testify about the reasonable expectations of the parties to a contract like the one between the parties here, including their expectations about how it should be implemented and what actions are reasonable under the circumstances. Like an expert in a malpractice case, moreover, an expert can opine on the extent to which a party’s conduct diverged from the reasonable standard of conduct expected under industry norms. While such testimony may be relevant to ultimate questions of whether one party breached the contract or the covenant of good faith and fair dealing, opinions on the failure to perform according to industry standards is admissible, even though an expert is generally not permitted to offer opinions on the ultimate issue of breach.

Similarly, an expert should not be permitted to opine about whether the other party did or did not act in bad faith but may offer testimony about whether, for example, the party’s conduct was consistent with industry standards or constituted a stark departure from industry expectations and customs.

The Court is not convinced that the testimony of either side’s experts will necessarily run afoul of the proper restrictions on expert opinion in this context but provides these guidelines to ensure that their opinions are properly framed and presented. If a particular question or opinion appears to violate these precepts, the opposing party should interpose an objection to the specific evidence being offered so the Court can rule on its admissibility.

Defendants’ MIL # 2 – to exclude expert testimony from Bill Hartzer about digital marketing strategies as they relate to search engine optimization, website creation and modification, google advertising, website analytics and rankings, etc.

Defendants’ MIL #3 – to exclude expert testimony from Travis Keys regarding digital marketing, websites, internet marketing, etc.

TENTATIVE: Denied, without prejudice to specific objections being offered at trial. Defendants’ motions extract specific testimony in the nature of cross-examination of Mr. Hartzer and Mr. Keys to argue that all of their opinions are flawed and grounded on a deficient analysis of inadequate data. The Court cannot reach such conclusions based on the arguments raised. Rather, the Court concludes that Plaintiffs should proffer their experts’ opinions at trial, along with a description of the underlying data and evidence examined and analysis conducted, so the Court can reach conclusions about the admissibility and weight of the expert opinions based on a full record.