Judge: Theresa M. Traber, Case: BC562415, Date: 2022-09-27 Tentative Ruling

Case Number: BC562415    Hearing Date: September 27, 2022    Dept: 47

Please post for today’s FSC.

Plaintiffs’ MIL #1 – to exclude any evidence of unpaid taxes or that Plaintiffs were required to pay them to cure default

TENTATIVE:  Denied.  Under the current version of Civil Code section 2924c, a lender who issues a Notice of Default is required to notify the borrower that “the beneficiary or mortgagee may require as a condition to reinstatement that you provide reliable written evidence that you paid all senior license, property taxes and hazard insurance premiums.”  (Ibid.)  Defendant Bank of the West’s Notice of Default contains the required statutory language.  Thus, evidence of whether Defendants required such payments or written evidence thereof is relevant to Plaintiffs’ contentions that they were entitled to reinstatement of the loan and whether Defendants engaged in the alleged acts of unfair competition. 

Plaintiffs’ MIL #2 – to exclude any undisclosed evidence sought during discovery, including any correspondence between Defendant Bank of the West and Plaintiffs, and specifically a July 22, 2010 letter which refers to an email from Kyle Ta, because Defendant Bank of the West refused to product the email relied on by the bank to frame the letter.

TENTATIVE:  Denied, without prejudice to objections being raised to specific evidence offered at trial.  Plaintiffs have not identified any specific evidence sought to be excluded, except the July 22, 2010 letter (which was produced) and perhaps the Ta email that was referred to in the letter.  As to the first document, it should not be excluded on the grounds asserted because it was produced.  As to the second document, there is no suggestion that any party has possession of the email and/or intends to offer it as evidence at trial.  Questions about whether the Ta email existed and, if so, what it said, and whether Defendant Bank of the West improperly withheld or destroyed the email can be explored through evidence submitted at trial to allow Plaintiffs to establish whatever negative evidentiary inferences that may arise from such evidence. 

Plaintiffs’ MIL #3 – to exclude trial testimony from John Himmelberg

TENTATIVE:  Denied.  Plaintiffs have failed to demonstrate any willful failure to disclose Mr. Himmelberg as a potential witness and, in fact, the record shows they were aware of his involvement in the loan transactions at issue in this case.  To the extent Mr. Himmelberg’s testimony contradicts specific testimony offered by the PMK at deposition, Plaintiffs may object to that testimony at trial or argue about its weight or credibility in closing arguments.

Defendant Delano’s MIL #1 – to exclude expert testimony of Mark E. Moore regarding fair rental value

TENTATIVE:  Denied.  The issues raised by Delano in its motion in limine are proper fodder for cross-examination and for arguments about the flimsy basis for Mr. Moore’s conclusions and reduced weight that should be accorded his opinions.  They do not warrant wholesale exclusion of his testimony on the fair rental value of the property.