Kristin Johnston vs. Village Townhomes Maintenance Corporation

Motion in Limine

Cal. Super. - 4th Dist.April 28, 2016

No ~N ON oo ELECTRONICALLY FILED SHANNON C. LAMB (SBN 208753) URE a California, SHANNON C. LAMB, APC HURRY BT LMNgE 19200 Von Karman Avenue, Suite 600 10/27/2017 at 08:00:00 Ah Irvine, California 92612 Clerk of the Superior Court Tel: (949) 622-5565 By Bmma Castle, Deputy Clerk Fax: (949) 482-1688 KERMIT D. MARSH (SBN 150745) RICKY S. SHAH (SBN 274264) THE LAW OFFICES OF KERMIT D. MARSH 9550 Warmer Avenue, Suite 250 Fountain Valley, California 92708 Tel: (714) 593-2321 Fax: (888) 396-6272 Attorneys for Plaintiff KRISTIN JOHNSTON SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE CENTRAL JUSTICE CENTER KRISTIN JOHNSTON, Case No: 30-2016-00849191-CU-PP-CJC Plaintiff, Assigned for All Purposes to the Honorable Glenn R. Salter VS. VILLAGE TOWNHOMES PLAINTIFF'S NOTICE OF MOTION AND MAINTENANCE CORPORATION, a MOTION IN LIMINE NO. 3 TO E California corporation; ROBERT PRECLUD PORTIONS OF DEFENDANTS’ GREENSTEIN, individually; KENDALL EXPERT WITNESS KELLY G. MOSLEY, individually; STEVEN RICHARDSON’S TESTIMONY WHEELER, individually; and DOES 1 through 10, inclusive, Dept.: €22 Defendants. Date Filed: ~~ April 28, 2016 TO ALL PARTIES AND TO THEIR RESPECTIVE ATTORNEYS OF RECORD: Plaintiff KRISTIN JOHNSTON (“Plaintiff”) respectfully moves the Court for an order in limine to preclude portions of Defendants VILLAGE TOWNHOMES MAINTENANCE CORPORATION, ROBERT GREENSTEIN, KENDALL MOSLEY, and STEVEN WHEELER’s (collectively “Defendants or the “Association”) expert witness Kelly G. 1 PLAINTIFF'S NOTICE OF MOTION AND MOTION IN LIMINE NO. 3 © 80 NN Oo wn BA W O N r o r o r o r o N o r o [ 8 % ] r o r o - -_- - - es o k - -_ _- b o oo ~~ aN Wh Ea w o r o pe t S \ O x ~ ND wn Ea w 38 ] -- << Richardson's testimony at Trial. This motion is based on the attached Memorandum of Points and Authorities, the Declaration of Shannon C. Lamb, and such other evidence as may be introduced at the time of the hearing, and is made on the grounds that statutory and case authority supports such preclusion. Respectfully submitted. DATED: July 28, 2017 LAW OFFICES OF KERMIT D. MARSH | LL dem! “KERMIT D. MARSH Attorneys for Plaintiff KRISTIN JOHNSTON 2 PLAINTIFF'S NOTICE OF MOTION AND MOTION IN LIMINE NO. 3 SH L N Oo 0 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. ARGUMENT A. Portions of Mr. Richardson’s Testimony Should Be Excluded Because The Testimony Is Not Related to A Subject That Is Sufficiently Beyond A Common Experience, And It Would Not Assist The Trier Of Fact. Pursuant to California Evidence Code, Section 801, a trial court may allow expert testimony in the form of an opinion if (1) the expert witness’ testimony is related to a subject that] is sufficiently beyond common experience, (2) the expert’s opinion would assist the trier of fact, (3) the expert witness’ testimony is based on matters perceived by, personally known to, or made known to the expert, and (4) the expert witness’ testimony is based on matters reasonably relied upon by experts in forming such opinions. New v. Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681, 692. Further, an expert witness may express opinions that embrace an ultimate issue to be determined by the trier of fact. Evidence Code, Section 805. According to Defendants’ Exchange of Expert Witness Information and supporting Declaration of Jon B. Miller, Defendants’ expert witness, Kelly G. Richardson, is expected to testify at trial regarding “the purpose, role and interpretation of CC&Rs, Rules and Bylaws, the rights and duties of an Association and its residents with respect to upkeep, maintenance and repairs.” Declaration of Jon B. Miller in Support of Exchange of Expert Witness Information (“Miller Decl.”), 2:15-17. A true and correct copy of Defendants’ Exchange of Expert Witness Information and supporting Declaration of Jon B. Miller is attached to the Declaration of Shannon C. Lamb (“Lamb Declaration”) as Exhibit A. However, not only is Mr. Richardson’s opinion regarding the matters listed above unrelated to a subject that is sufficiently beyond common experience, his opinion also would in no way assist the trier of fact, as this is a court trial and the Court is perfectly capable of interpreting the documents and understanding the applicable law without the purported assistance of Mr. Richardson. Moreover, Defendants have not alleged that the CC&Rs, Rules or Bylaws are vague or ambiguous and therefore need external interpretation. Consequently, Mr. Richardson’s opinions on these matters do not embrace an ultimate issue to be determined by the trier of fact. 3 PLAINTIFF'S NOTICE OF MOTION AND MOTION IN LIMINE NO. 3 OO 0 3 O&O Wn B & W O N = c o 9 S N Un BA W N = C V N N B A W = O B. Defendants Are Prohibited From the Admission of an Expert Opinion On a Question of Law. Even if Mr. Richardson’s opinion testimony was admissible under Evidence Code, Section 805, which it is not, there are limits to expert testimony, including the prohibition against admission of an expert's opinion on a question of law. Ferreira v. Workmen's Comp. Appeals Bd. (1974) 38 Cal.App.3d 120. The court in Downer v. Bramet held that expert opinions on legal questions are not admissible regardless of whether the opinion embraces an ultimate issue. Downer v. Bramet (1984) 152 Cal.App.3d 837. The court further held that an expert cannot testify to legal conclusions in the guise of expert opinion and that such legal conclusions do not constitute substantial evidence. /d. at 841. Moreover, “the calling of lawyers as “expert witnesses’ to give opinions as to the application of the law to particular facts usurps the duty of the trial court . . . and results in no more than a modern day ‘trial by oath’ in which the side producing the greater number of lawyers able to opine in their favor wins.” Id. at 842. Expert opinion on the legal interpretation of contracts has also been found to be inadmissible. The court in Cooper Companies v. Transcontinental Ins. Co. held that “the meaning of the [insurance] policy is a question of law about which expert opinion testimony is inappropriate.” Cooper Companies v. Transcontinental Ins. Co. (1995) 31 Cal.App.4th 1094, 1100; Suarez v. Life Ins. Co. of North America (1988) 206 Cal.App.3d 1396, 1406-1407 (upholding trial court ruling excluding opinion testimony regarding reasonable interpretation of policy language). Despite the fact that Mr. Richardson’s resume states that he is an attorney with experience in real estate and common interest development law, Defendants cannot introduce Mr. Richardson’s testimony regarding legal conclusions in the guise of an “expert opinion.” It is the Court’s right and duty to interpret and apply the law in this case, and Mr. Richardson is not allowed to impose his legal conclusions upon the Court in the guise of expert testimony. I In 1! 4 PLAINTIFF'S NOTICE OF MOTION AND MOTION IN LIMINE NO. 3 O e N N Wn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. The Probative Value Is Substantially Outweighed By The Probability of Undue Prejudice. Pursuant to Evidence Code, Section 352, the Court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time, or (b) create substantial danger of undue prejudice, or confusing the issues, or of misleading the jury. Here, the probative value of allowing Mr. Richardson to testify as to his legal opinions and conclusions with regard to “the purpose, role and interpretation of CC&Rs, Rules and Bylaws, the rights and duties of an Association and its residents with respect to upkeep, maintenance and repairs” is substantially outweighed by the probability of undue prejudice to Plaintiff because Mr. Richardson’s opinions regarding the law has no probative value, as it is the Court’s duty to interpret and apply the law, and Plaintiff would be unduly prejudiced because of Mr. Richardson’s opinion as an attorney regarding the law would give the appearance of more weight than is allowed. Further, as stated above, expert opinions on the legal interpretation of contracts are inadmissible under California law. Consequently, Mr. Richardson’s testimony regarding “the purpose, role and interpretation of CC&R’s, Rules and Bylaws, the rights and duties of an Association and its residents with respect to upkeep, maintenance and repairs” is inadmissible and should be excluded at trial. Under the above analysis, Plaintiff's Motion in Limine No. 3 should be granted in its entirety. II. CONCLUSION For all the foregoing reasons, Plaintiff Kristin Johnston respectfully requests that this Court grant this Motion in Limine No. 3 in its entirety and preclude Defendant from introducing Mr. Richardson’s testimony regarding “the purpose, role and interpretation of CC&Rs, Rules and Bylaws, the rights and duties of an Association and its residents with respect to upkeep, maintenance and repairs” at trial. nn 1 1 5 PLAINTIFF'S NOTICE OF MOTION AND MOTION IN LIMINE NO. 3 Oo O e N N N Wn Bs 10 11 12 13 14 15 16 17 18 19 20 21 23 24 25 26 27 28 Respectfully submitted. DATED: July 28, 2017 LAW OFFICES OF KERMIT D. MARSH Lo. Feat “KERMIT D. MARSH Attorneys for Plaintiff KRISTIN JOHNSTON 6 PLAINTIFF'S NOTICE OF MOTION AND MOTION IN LIMINE NO. 3