Judge: Theresa M. Traber, Case: 22STCP03518, Date: 2023-10-23 Tentative Ruling

Case Number: 22STCP03518    Hearing Date: April 16, 2024    Dept: 47

MYUNG HYE KIM vs DAVID OKJU AN, Case No. 22STCP03518

TENTATIVE RULINGS ON MOTIONS IN LIMINE

PLAINTIFF’S MIL # 1:  seeking an order precluding any evidence in support of Defendant’s claim for compensation or credit based on his unlicensed contracting activities.         

TENTATIVE RULING:  DEFERRED TO TRIAL – this issue is at the core of a central case to be tried in this matter. 

PLAINTIFF’S MIL #2:   seeking to exclude parol evidence that contracts terms of partnership agreement and/or lease.

TENTATIVE RULING:  DENIED. 

Because Plaintiff does not identify any specific evidence to be excluded or clarify how it contradicts the terms of the parties’ agreements, the Court cannot issue a meaningful order setting an evidentiary limit.

PLAINTIFF’S MIL #3:   seeking to exclude Defendant’s experts as untimely designated.  

TENTATIVE RULING:  DENIED. 

Plaintiff’s initial designation of experts was timely served by email on February 26, 2024.  A supplemental designation must be served within 20 days after the initial expert exchange under Code of Civil Procedure § 2034.280(a).  Because service by email adds two days to the period for any response (Code Civ. Proc. §1010.6(b)), Defendant’s supplemental disclosure was due 22 days later on March 19, 2024, which is the day it was served.    

DEFENDANT’S MIL # 1:  seeking an order precluding any evidence or reference to construction work performed at Plaintiff’s Santa Monica address because it was completed in or before May 2021 – more than one year before Plaintiff filed her claim for forfeiture on September 28, 2022.         

TENTATIVE RULING:  DENIED. 

Under Code of Civil Procedure § 458, a bar based on the statute of limitations must be asserted through factual allegations on which it is grounded or “it may be stated generally that the cause of action is barred by the provision of Section __ (giving the number of the section and subdivision thereof, if it is so divided, relied upon)”  Courts applying this provision have held it should be “must be strictly applied, and that the attempted plea of the statute of limitations [without reference to the specific section and subdivision is] insufficient to raise that issue in the trial court.”  (Davenport v. Stratton (1944) 24 Cal. 2d 232, 247; see also Overton v. White (1937) 18 Cal.App.2d 567.)  Because Defendant asserted a limitations defense with a list of statutes but with no mention of subdivision (a) of Code of Civil Procedure § 340, the case law advanced by Plaintiff dictates a ruling that defendant has waived the defense.  Even so, Defendant’s construction activities in 2021 are highly relevant to Plaintiff’s claim for relief under Unfair Competition Act, Business and Professions Code § 17200, et seq., which has a four-year limitations period.  Further, these activities are potentially admissible to demonstrate Defendant’s intent, plan, or the absence of mistake under Evidence Code § 1101(b) or to challenge Defendant’s credibility. 

DEFENDANT’S MIL # 2:  seeking an order precluding any evidence or reference to unlicensed construction work performed by Defendant on the grounds that it is irrelevant and unduly prejudicial under Evidence Code §§ 210 and 352 because, as a business partner, Defendant was not required to hold a contractor’s license to perform work at the property.     

DEFENDANT’S MIL # 3:  seeking an order precluding any expert testimony about whether Defendant performed any unlicensed construction work on the grounds that it is irrelevant and unduly prejudicial under Evidence Code §§ 210 and 352 because, as a business partner, Defendant was not required to hold a contractor’s license to perform work at the property.           

TENTATIVE RULINGS:  DENIED. 

As Plaintiff emphasizes, Business & Professions Code § 7044 provides an exception to the restrictions on unlicensed contractors performing construction work where it is the property’s owner or its employees who performs the work at issue.  This is not the situation in this case where it is Plaintiff, not Defendant, who owned the real property on Florence Avenue.  Thus, the question of whether Defendant performed construction work without a license is centrally important to the case.