Judge: Theresa M. Traber, Case: BC717200, Date: 2022-12-20 Tentative Ruling
Case Number: BC717200 Hearing Date: December 20, 2022 Dept: 47
YOAV BOTACH ET AL VS NEWMARK OF SOUTHERN CALIFORNIA INC.,
Case No. BC717200
Pltf’s MIL #1
to admit prior deposition testimony of Plaintiff Yoav Botach
TENTATIVE RULING: Granted,
subject to Defendants’ objections under Evidence Code § 352 and ruled on in
connection with specific testimony to be offered by Plaintiff.
Dfts’ MIL # 1 to exclude prior
deposition testimony of Plaintiff Yoav Botach
TENTATIVE RULING: Denied
as to argument that testimony in inadmissible under Evidence Code § 1292,
without prejudice to objections being asserted under Evidence Code § 352 and
ruled on in connection with specific testimony to be offered by Plaintiff.
Issues of enforceability of the PSA and whether Botach was
subject to undue influence are central to both cases. Defendants here are alleged to have acted as
agents for Bonnis, a party to the prior action with similar interest to
Defendants here to establish the enforceability of the PSA and the lack of any
undue influence on Botach by Begum.
Specific concerns about the lack of credibility of Botach or whether it
would be unfair, unduly prejudicial, misleading or likely to consume
substantial time can be addressed through objections to specific testimony
under Evidence Code § 352.
Dfts’ MIL # 2 to exclude any mention of alleged spoliation
of text messages
TENTATIVE RULING: Granted.
“Spoliation of evidence means the destruction or significant
alteration of evidence or the failure to preserve evidence for another's use in
pending or future litigation.” (Williams v. Russ¿(2008)167 Cal.App.4th¿1215, 1223
[Citation omitted].) In this case,
Plaintiffs have offered no evidence to prove that there were any text messages
that existed between Defendant Begum and Bonnis or between either of them any
other persons regarding the real estate transaction at issue in this case. Nor is there any evidence that Defendants failed
to preserve any text messages that were in existence during discovery in the
prior lawsuit or during this one, much less that they intentionally destroyed or
deleted any such text messages. In the
absence of any evidence that would support an allegation of spoliation,
argument or inquiries during trial about spoliation would be unduly prejudicial
and confusing to the jury and would needlessly expand the scope of trial to
address Plaintiff’s accusations. As a
result, such questioning and arguments will be barred under Evidence Code §
352.
Dfts’ MIL # 3 to exclude certain emails between Begum
and Bonnis
TENTATIVE RULING: Denied. At the core of this case is whether Begum pressured
and exercised undue influence over Plaintiff Botach, who was elderly, blind,
infirm and unable to read English. These
emails are directly relevant and admissible to demonstrate Begum’s state of
mind with respect to his dealings with Botach.
Dfts’ MIL # 4 to preclude admission of any documents or records not
disclosed in discovery.
TENTATIVE RULING: Denied,
no specific documents or records identified or shown to have been withheld
during discovery.
The Court cannot grant this motion
in limine because it fails to identify any specific evidence or documents
sought to be excluded. Nor have
Defendants shown that specific evidence was sought and withheld during
discovery. 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.)
Further, there is no evidence here that Defendants engaged in a pattern
of discovery abuse or intentionally withheld any documents or information from
the discovery it provided. “[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.)
Dfts’ MIL # 5 to preclude
admission of evidence regarding an alleged internal commission dispute.
TENTATIVE RULING: Denied, the motion fails to identify
or attach specific documents or testimony sought to be excluded. The Court will rule on objections to evidence
offered at trial.
Dfts’ MIL # 6 to preclude testimony
of Plaintiff’s treating physicians because they were not designated as
non-retained experts in Plaintiff’s expert disclosures.
TENTATIVE RULING: Granted, as it appears that Plaintiffs
do not oppose the motion.
Dfts’ MIL #7 – to bifurcate
trial into liability and punitive damages phases and exclude all evidence of
Defendants’ financial condition until after the jury awards actual damages and
makes a finding of fraud, malice or oppression under Civil Code § 3294.
RULING: Granted, pursuant to Civil Code §
3295(d).
IT IS SO ORDERED.
Dated: December 20, 2022 ___________________________________
Theresa M. Traber
Judge of the Superior Court