Judge Theresa M. Traber, Case Number: BC591743, Date: 2024-05-06 Tentative Ruling

Judge: Theresa M. Traber, Case: BC591743, Date: 2024-05-06 Tentative Ruling

Case Number: BC591743 Hearing Date: May 6, 2024 Dept: 47

PALOS VERDES ENGINEERING CORPORATION V. RUBEN GUTIERREZ, ET AL, No. BC591743

TENTATIVE RULING ON DEFENDANT’S MOTION IN LIMINE NO. 1

Defendants’ MIL # 1 – seeking an order to preclude any damage evidence, including expert testimony, based only on speculation and extrapolation.

TENTATIVE RULING: DENIED.

Defendants make two primary arguments for an order excluding testimony from experts or other witnesses improperly based upon extrapolation or speculation. First, they assert the tautology that testimony based solely on speculation or improper extrapolation is inadmissible. Because the motion fails to identify specific damage calculations or opinions and describe the underlying facts or records and/or statistical methods used to reach those calculations or opinions, any order granting such a motion would amount to a “ruling[ ] which would merely be declaratory of existing law or would not provide any meaningful guidance for the parties or the witnesses.” (Kelly v. New West Federal Savings (1996) 49 Cal. App. 4^th 659, 670.) For a motion in limine order to be of any force, it must carve out identifiable evidence or testimony that is to be excluded, usually by reference to an expert’s deposition testimony or report or specific documents revealed during discovery. The motion before the Court lacks such a foundation, so the Court cannot grant any relief based on this argument.

Defendants’ second argument – raised for the first time in reply – is that Plaintiff has not disclosed the details of its damage calculations in discovery and, thus, should be precluded from doing so at trial. (Reply, p. 4 [“Because there could be no excuse for failing to disclose that information in multiple discovery responses, . . . [the motion] should be granted”].) But the record established by Defendants does not meet the standard for excluding evidence as a discovery sanction. In general, a party who has responded to formal written discovery has no affirmative duty to supplement its responses when new information comes into its possession. (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1318–1319, 1328.) “[A]bsent unusual circumstances, such as repeated and egregious discovery abuses,” courts will not impose an evidentiary sanction for a failure to disclose unless there has been a “willful” failure to disclose. (Id., at p. 1327.) Here, there has been no showing that Plaintiff’s discovery responses were willfully false or incomplete. (Id., at p. 1323-1324.) Nor have Defendants pointed to any violation of a court order directing Plaintiffs to provide further answers to Defendants’ discovery.

Accordingly, Defendants’ attacks on Plaintiff’s deposition testimony – even if it is incomplete or unsupported by provable facts – do not justify exclusion of all evidence of Plaintiff’s damage calculations. This is particularly true here where Plaintiff designated a damages expert in June 2022, and Defendants acknowledge in their second motion in limine that Plaintiff has “repeatedly deferred to Mr. Clark and indicated that [its damages calculations] would be provided through Mr. Clark’s deposition testimony.” (Defendants’ MIL No. 2, p. 7.) Whether Defendants timely sought this expert deposition and whether Plaintiff has “unreasonably” failed to produce Mr. Clark for deposition are the subjects of that recently filed motion in limine which has not been fully briefed.