Helene V. Galen v. Avenue of the Stars Associates LLC et al

Filing 78

ORDER by Judge Ronald S.W. Lew: denying 41 Defendant's Motion in Limine to Exclude at Trial testimony by Bill Pham, Corazon Canamaso, and Ethel Concepcion; granting 42 Defendant's Motion in Limine No. 2 to exclude the trial testimony of Robert Gilmore; denying 43 Defendant's Motion in Limine No. 3 to exclude the trial testimony of Bill Pham regarding his review of the documents provided to him by Plaintiff and his investigation as to whether Plaintiff was provided with the M arch Property Report before she signed the Purchase Agreement; granting 44 Defendant's Motion in Limine No. 4 to exclude evidence or argument that Defendant was required to have Plaintiff sign the Receipt for the March 28, 2008 Public Report b efore signing the Purchase Agreement; granting 46 Plaintiff Galen's Motion in Limine No. 1 to Preclude Defendant from Presenting Any Evidence or Argument Relating to the "100 Lot Exemption"; granting 47 Plaintiff's Motion in L imine No. 2 to preclude Defendant from presenting any evidence or argument that it purportedly complied with the ILSA and CSLA by providing Plaintiff with the expired December 17, 2007 Property Report; granting in part and denying in part 48 Plaint iff's Motion in Limine No. 3. The Court GRANTS Plaintiff's Motion in Limine No. 3 with regard to any evidence or argument that Defendants violation of the ISLA and CSLA is excused because Plaintiff was not purportedly misled or defrauded. H owever, Plaintiff's Motion in Limine No. 3 is DENIED with regard to evidence or argument that Plaintiffs purported motive or reason for seeking to rescind the Purchase Agreement is due to buyer's remorse or a change in market conditions; and denying 49 Plaintiff's Motion in Limine No. 4. the testimony of Erica Llanos. (lom)

Helene V. Galen v. Avenue of the Stars Associates LLC et al

Doc. 78

1 2 3 4 5 6 7 8 9 10 11 Helene V. Galen, as Trustee for the Louis J. Galen 12 Revocable Trust of 1983, Udt Dated May 23, 1983, 13 Plaintiff, 14 v. 15 ) ) ) ) ) ) ) ) ) ) 16 Avenue of the Stars ) Associates, LLC, ) 17 ) ) 18 Defendant. ) 19 CV 09-4738 RSWL (SHx) ORDER Re: Defendant's Motions in Limine [41][42][43][44] and Plaintiff's Motions in Limine [46][47][48][49] UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Defendant Avenue of the Stars Associates, LLC filed

20 its Motions in Limine [41] [42] [43] [44] on October 21 04, 2010. Plaintiff Helene V. Galen filed her Motions

22 in Limine [46] [47] [48] [49] on October 05, 2010. 23 Both matters were originally set for hearing on January 24 04, 2011. Having taken both matters under submission

25 on December 27, 2010, and having reviewed all papers 26 submitted pertaining to these Motions, the Court NOW 27 FINDS AND RULES AS FOLLOWS: 28 ///
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Dockets.Justia.com

1 I. Defendant's Motions in Limine 2 3 4 5 6 7 8 9 1. Defendant's Motion in Limine No. 1 To Exclude Trial Testimony By Any Witness Identified By Plaintiff After The Discovery Cut-Off Date Had Passed Including, But Not Limited To, The Testimony Of Bill Pham, Corazon Canamaso, And Ethel Concepcion A. Legal Standard Federal Rule of Civil Procedure 26(a)(1)(A)(I)

10 states, in relevant part: 11 12 13 14 15 16 17 18 19 [A] party must, without awaiting a discovery request, provide to the other parties: (I) the name and, if known, the address and telephone number of each individual likely to have discoverable information ­- along with the subjects of that information ­that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.

20 Fed. R. Civ. P. 26(a)(1)(A)(I). 21 Federal Rule of Civil Procedure 37(c)(1) states

22 that if a party fails to provide information or 23 identify a witness as required by Rule 26(a), "the 24 party is not allowed to use that information or witness 25 to supply evidence ... at a trial, unless the failure 26 was substantially justified or is harmless." 27 Civ. P. 37(c)(1). Under Federal Rule of Civil Fed. R.

28 Procedure 37(c)(1), the party facing sanctions
2

1 therefore has the burden of showing that a failure to 2 comply with Federal Rule of Civil Procedure 26 was 3 "substantially justified or harmless." Yeti by Molly,

4 Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th 5 Cir. 2001). The District Courts have broad discretion

6 in imposing discovery sanctions under Federal Rule of 7 Civil Procedure 37. Ritchie v. United States, 451 F.3d

8 1019, 1026 (9th Cir. 2006). 9 10 B. Analysis The Court DENIES Defendant's Motion in Limine No. 1

11 to exclude trial testimony by any witness identified by 12 Plaintiff after the discovery cut-off date had passed, 13 including the testimony of Bill Pham, Corazon Canamaso, 14 and Ethel Concepcion ("New Witnesses"). However, the

15 Court finds that this ruling pertains only to the trial 16 testimony of Bill Pham, Corazon Canamaso, and Ethel 17 Concepcion and not to any other witnesses identified by 18 Plaintiff after the discovery cut-off date had passed. 19 The Court finds that the prejudice to the Defendant

20 from the late disclosure of the New Witnesses is not so 21 severe as to warrant exclusion. While certainly late

22 and past the discovery deadline, Plaintiff did serve 23 Defendant with supplemental disclosures to inform 24 Defendant about the New Witnesses two months before the 25 original trial date. Moreover, the Defendant has been

26 on notice with regard to the scope of Bill Pham's 27 testimony because Bill Pham previously submitted to 28 this Court a detailed Declaration in support of
3

1 Plaintiff's Opposition to Defendant's Motion for 2 Summary Judgment. Thus, the scope of Bill Pham's

3 testimony has been known to the Defendant, and would 4 not constitute a surprise. Additionally, Bill Pham's

5 Declaration submitted to this Court in support of 6 Plaintiff's Opposition to Defendant's Motion for 7 Summary Judgment sets forth the scope of his 8 conversations and discussions with both Corazon 9 Canamaso and Ethel Concepcion. 10 Accordingly, the Court DENIES Defendant's Motion in

11 Limine No. 1 to exclude at Trial testimony by Bill 12 Pham, Corazon Canamaso, and Ethel Concepcion. 13 14 15 16 2. Defendant's Motion in Limine No. 2 To Exclude Trial Testimony By Robert Gilmore A. Legal Standard Federal Rule of Civil Procedure, Rule 56(g) states,

17 in relevant part: 18 19 20 21 22 23 If the court does not grant all the relief requested by the motion, it may enter an order stating any material fact--including an item of damages or other relief--that is not genuinely in dispute and treating the fact as established in the case.

24 Fed. R. Civ. P. 56 (g). 25 Federal Rule of Evidence 401 defines relevant

26 evidence, stating that, "[r]elevant evidence means 27 evidence having any tendency to make the existence of 28 any fact that is of consequence to the determination of
4

1 the action more probable than it would be without the 2 evidence." Fed. R. Evid. 401. Federal Rule of

3 Evidence 402 provides that all irrelevant evidence is 4 not admissible. Fed. R. Evid. 402. 5 6 B. Analysis The Court GRANTS Defendant's Motion in Limine No. 2

7 to exclude the trial testimony of Robert Gilmore. 8 Robert Gilmore is the Subdivision District Manager

9 in the Los Angeles Office of the California Department 10 of Real Estate ("DRE"). Plaintiff stated that she

11 anticipated that Robert Gilmore would testify regarding 12 the DRE's interpretation of the requirements and 13 obligations imposed upon the sellers of lots by the 14 California Subdivided Lands Act ("CSLA"). 15 Specifically, Plaintiff designated Robert Gilmore as an 16 expert witness to testify about the issue of whether 17 the DRE interprets the CSLA as requiring that a 18 prospective buyer must be provided with a receipt for 19 the current public report and sign that receipt before 20 signing a purchase agreement. 21 On August 24, 2010, the Court issued an Order [29],

22 with regard to both Plaintiff's and Defendant's Motions 23 for Summary Judgment [11, 15], finding that the 24 Defendant did not violate the CSLA by obtaining 25 Plaintiff's signature on the Receipt after Plaintiff 26 signed the Agreement. As such, Plaintiff has informed

27 the Court that she will not pursue her theory of 28 liability that Defendant violated the CSLA by failing
5

1 to obtain a signed Receipt from Plaintiff before 2 Plaintiff signed the Purchase Agreement. 3 Therefore, because the issue on which Robert

4 Gilmore was expected to testify has already been ruled 5 on by this Court, and because it appears that neither 6 party will pursue this issue at Trial, the Court GRANTS 7 Defendant's Motion in Limine No. 2 to exclude the trial 8 testimony of Robert Gilmore. 9 10 11 12 13 14 15 16 3. Defendant's Motion in Limine No. 3 To Exclude The Trial Testimony Of Bill Pham Regarding His Review Of The Documents Provided To Him By Plaintiff And His Investigation As To Whether She Was Provided With The March Property Report Before She Signed The Purchase Agreement A. Legal Standard Federal Rule of Evidence 401 defines relevant

17 evidence, stating that, "[r]elevant evidence means 18 evidence having any tendency to make the existence of 19 any fact that is of consequence to the determination of 20 the action more probable than it would be without the 21 evidence." Fed. R. Evid. 401. Federal Rule of

22 Evidence 402 provides that all irrelevant evidence is 23 not admissible. Fed. R. Evid. 402. 24 Under Federal Rule of Evidence 403, even relevant

25 evidence may be excluded if its probative value is 26 substantially outweighed by the danger of unfair 27 prejudice. Fed. R. Evid. 403. Moreover, under Federal

28 Rule of Evidence 602, a witness may not testify to a
6

1 matter unless evidence is introduced sufficient to 2 support a finding that the witness has personal 3 knowledge of the matter. Fed. R. Evid. 602. 4 5 B. Analysis The Court DENIES Defendant's Motion in Limine No. 3

6 to exclude the trial testimony of Bill Pham regarding 7 his review of the documents provided to him by 8 Plaintiff and his investigation as to whether Plaintiff 9 was provided with the March Property Report before she 10 signed the Purchase Agreement. The Court finds that

11 Bill Pham's testimony would be directly relevant to the 12 ultimate issue in this case of whether Plaintiff was 13 given the March 28, 2008 Property Report. However, the

14 Court notes that Bill Pham's testimony will still be 15 subject to evidentiary objections that may be raised by 16 the Defendant at Trial. 17 18 19 20 21 22 23 4. Defendant's Motion in Limine No. 4 To Exclude Evidence Or Argument That Defendant Was Required To Have Plaintiff Sign The Receipt For The March 28, 2008 Public Report Before Signing The Purchase Agreement A. Legal Standard Federal Rule of Civil Procedure, Rule 56(g) states,

24 in relevant part: 25 26 27 28 If the court does not grant all the relief requested by the motion, it may enter an order stating any material fact--including an item of damages or other relief--that is not genuinely in
7

1 2

dispute and treating the fact as established in the case.

3 Fed. R. Civ. P. 56 (g). 4 Federal Rule of Evidence 401 defines relevant

5 evidence, stating that, "[r]elevant evidence means 6 evidence having any tendency to make the existence of 7 any fact that is of consequence to the determination of 8 the action more probable than it would be without the 9 evidence." Fed. R. Evid. 401. Federal Rule of

10 Evidence 402 provides that all irrelevant evidence is 11 not admissible. Fed. R. Evid. 402. 12 13 B. Analysis The Court GRANTS Defendant's Motion in Limine No. 4

14 to exclude evidence or argument that Defendant was 15 required to have Plaintiff sign the Receipt for the 16 March 28, 2008 Public Report before signing the 17 Purchase Agreement. 18 The Court has already addressed, as a legal matter,

19 the issue of whether the Defendant had to have obtained 20 a receipt for the March Property Report prior to the 21 time that Plaintiff signed the Purchase Agreement. 22 its August 24, 2010 Order [29], the Court found that 23 the Defendant did not violate the CSLA by obtaining 24 Plaintiff's signature on the Receipt after Plaintiff 25 signed the Agreement. Specifically, the Court reasoned In

26 that the Receipt's language acknowledges that the 27 Receipt's signatory may have already signed a purchase 28 agreement based on a conditional property report, and
8

1 subsequently may be signing the Receipt for a final 2 property report. 3 Accordingly, the Court GRANTS Defendant's Motion in

4 Limine No. 4 to exclude evidence or argument that 5 Defendant was required to have Plaintiff sign the 6 Receipt for the March 28, 2008 Public Report before 7 signing the Purchase Agreement. 8 II. Plaintiff's Motions in Limine 9 10 11 12 13 1. Plaintiff's Motion in Limine No. 1 To Preclude Defendant From Presenting Any Evidence Or Argument Relating To The "100 Lot Exemption" A. Legal Standard Federal Rule of Civil Procedure, Rule 56(g) states,

14 in relevant part: 15 16 17 18 19 20 If the court does not grant all the relief requested by the motion, it may enter an order stating any material fact--including an item of damages or other relief--that is not genuinely in dispute and treating the fact as established in the case.

21 Fed. R. Civ. P. 56 (g). 22 23 B. Analysis Plaintiff argues that the Court's August 24, 2010

24 Order [29] establishes that Defendant fails to qualify 25 for the "100 Lot Exemption." Therefore, Plaintiff 26 contends that there is no reason for Defendant to 27 present any evidence or argument on this issue at 28 Trial. The Court GRANTS Plaintiff Galen's Motion in
9

1 Limine No. 1 to Preclude Defendant from Presenting Any 2 Evidence or Argument Relating to the "100 Lot 3 Exemption." 4 The Court finds that its August 24, 2010 Order [29]

5 established that Defendant failed to qualify for the 6 "100 Lot Exemption." Therefore, pursuant to Federal 7 Rule of Civil Procedure 56(g)1, this fact should be 8 treated as established. Accordingly, the Court GRANTS

9 Plaintiff's Motion in Limine No. 1 to preclude 10 Defendant from presenting any evidence or argument 11 relating to the "100 Lot Exemption." 12 13 14 15 16 17 18 2. Plaintiff's Motion in Limine No. 2 To Preclude Defendant From Presenting Any Evidence Or Argument That It Purportedly Complied With The ISLA And CSLA By Providing Plaintiff With The Expired December 17, 2007 Property Report A. Legal Standard Federal Rule of Civil Procedure, Rule 56(g) states,

19 in relevant part: 20 21 22 23 24 25 The Federal Rules of Civil Procedure were amended 26 on December 01, 2010, subsequent to Plaintiff filing the instant Motion. As such, the Plaintiff relied on 27 Federal Rule of Civil Procedure 56(d), which has now 28 been recodified as Federal Rule of Civil Procedure 56(g).
10
1

If the court does not grant all the relief requested by the motion, it may enter an order stating any material fact--including an item of damages or other relief--that is not genuinely in

1 2

dispute and treating the fact as established in the case.

3 Fed. R. Civ. P. 56 (g). 4 5 B. Analysis The Court GRANTS Plaintiff's Motion in Limine No. 2

6 to preclude Defendant from presenting any evidence or 7 argument that it purportedly complied with the ILSA and 8 CSLA by providing Plaintiff with the expired December 9 17, 2007 Property Report. 10 The Court has already addressed, as a legal matter,

11 the issue of whether an expired property report can 12 still suffice as complying with the Interstate Land 13 Sales Full Disclosure Act ("ILSA") and CSLA in its 14 August 24, 2010 Order [29]. The Court found that

15 Plaintiff's receipt of the December 17, 2007 Property 16 Report was insufficient to constitute compliance with 17 the ILSA and CSLA. Specifically, the Court found that

18 it was whether Plaintiff was in actual receipt of the 19 March 28, 2008 Property Report as opposed to the 20 December 17, 2007 Property Report that is controlling 21 on the issue of whether Defendant violated the ISLA. 22 Accordingly, the Court GRANTS Plaintiff's Motion in

23 Limine No. 2 to preclude Defendant from presenting any 24 evidence or argument that it purportedly complied with 25 the ILSA and CSLA by providing Plaintiff with the 26 expired December 17, 2007 Property Report. 27 28 3. Plaintiff's Motion in Limine No. 3 To Exclude Any Evidence Or Argument That Defendant's Alleged
11

1 2 3 4 5

Violation Of The ISLA And CSLA Is Excused Because The Plaintiff Purportedly Was Not "Defrauded" Or Because Plaintiff Purportedly Has Buyer's Remorse A. Legal Standard Federal Rule of Evidence 401 defines relevant

6 evidence, stating that, "[r]elevant evidence means 7 evidence having any tendency to make the existence of 8 any fact that is of consequence to the determination of 9 the action more probable than it would be without the 10 evidence." Fed. R. Evid. 401. Federal Rule of

11 Evidence 402 provides that all irrelevant evidence is 12 not admissible. Fed. R. Evid. 402. 13 14 B. Analysis The Court GRANTS IN PART AND DENIES IN PART The Court GRANTS

15 Plaintiff's Motion in Limine No. 3.

16 Plaintiff's Motion in Limine No. 3 with regard to any 17 evidence or argument that Defendant's violation of the 18 ISLA and CSLA is excused because Plaintiff was not 19 purportedly misled or defrauded. However, Plaintiff's

20 Motion in Limine No. 3 is DENIED with regard to 21 evidence or argument that Plaintiff's purported motive 22 or reason for seeking to rescind the Purchase Agreement 23 is due to buyer's remorse or a change in market 24 conditions. 25 Defendant has not objected to or opposed

26 Plaintiff's request that this Court exclude any 27 evidence or argument that Defendant's violation of the 28 ILSA and CSLA is excused because Plaintiff was not
12

1 misled or defrauded.

Accordingly, the Court GRANTS

2 Plaintiff's Motion in Limine No. 3 to exclude any 3 evidence or argument that Defendant's violation of the 4 ISLA and CSLA is excused because Plaintiff was not 5 purportedly misled or defrauded. 6 With respect to evidence or argument that

7 Plaintiff's purported motive or reason for seeking to 8 rescind the Purchase Agreement is due to buyer's 9 remorse or a change in market conditions, the Court 10 DENIES Plaintiff's Motion in Limine No. 3. At Trial,

11 the Court will be asked to decide whether Plaintiff 12 received the March 28, 2008 Report. In order to rescind 13 the Agreement under ILSA or CLSA, Plaintiff has the 14 burden of proving that she did not. The Court finds 15 that Plaintiff's motivation for bringing this Action is 16 relevant to her credibility and the Court's 17 determination of the ultimate issue in this case of 18 whether she received the March 28, 2008 Report. 19 Accordingly, the Court DENIES Plaintiff's Motion in

20 Limine No. 3 to exclude evidence or argument that 21 Plaintiff's purported motive or reason for seeking to 22 rescind the Purchase Agreement is due to buyer's 23 remorse or a change in market conditions. 24 25 26 27 4. Plaintiff's Motion in Limine No. 4 To Exclude The Testimony Of Erica Llanos A. Legal Standard Federal Rule of Civil Procedure 26(a)(1)(A)(I)

28 states, in relevant part:
13

1 2 3 4 5 6 7 8 9

[A] party must, without awaiting a discovery request, provide to the other parties: (I) the name and, if known, the address and telephone number of each individual likely to have discoverable information ­- along with the subjects of that information ­that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.

10 Fed. R. Civ. P. 26(a)(1)(A)(I). 11 Federal Rule of Civil Procedure 37(c)(1) states

12 that if a party fails to provide information or 13 identify a witness as required by Rule 26(a), "the 14 party is not allowed to use that information or witness 15 to supply evidence ... at a trial, unless the failure 16 was substantially justified or is harmless." 17 Civ. P. 37(c)(1). Under Federal Rule of Civil Fed. R.

18 Procedure 37(c)(1), the party facing sanctions 19 therefore has the burden of showing that a failure to 20 comply with Federal Rule of Civil Procedure 26 was 21 "substantially justified or harmless." Yeti by Molly,

22 Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th 23 Cir. 2001). The District Courts have broad discretion

24 in imposing discovery sanctions under Federal Rule of 25 Civil Procedure 37. Ritchie v. United States, 451 F.3d

26 1019, 1026 (9th Cir. 2006). 27 28 B. Analysis The Court DENIES Plaintiff's Motion in Limine No. 4
14

1 to exclude the testimony of Erica Llanos. The Court 2 finds that Defendant has substantially justified its 3 failure to timely supplement its initial disclosures. 4 Defendant's counsel received Ms. Llanos' contact 5 information on July 09, 2010, about a week after the 6 discovery cut-off date of June 30, 2010. [See 7 Declaration of Alicia Vaz ("Vaz Decl."), ¶¶ 7, 10.] 8 Within twenty days of receipt of this information, 9 Defendant filed its supplemental disclosures providing 10 Plaintiff with Ms. Llanos' phone number and email 11 address. [Id. at ¶ 17.] 12 Federal Rule of Civil Procedure 26 does not require

13 a party to provide contact information for a witness it 14 has disclosed when it does not have that information. 15 See Fed. R. Civ. P. 26 (a)(1)(A)(I). Defendant has

16 informed the Court that it has provided all of the 17 information that it has about Ms. Llanos and her 18 whereabouts to Plaintiff, including an email address 19 and telephone number in its supplemental disclosures. 20 [Vaz Decl., ¶¶ 3-5, 16-18.] Accordingly, the Court

21 DENIES Plaintiff's Motion in Limine No. 4 to exclude 22 the testimony of Erica Llanos. 23 24 DATED: March 1, 2011 25 IT IS SO ORDERED. 26 27 28 HONORABLE RONALD S.W. LEW Senior, U.S. District Court Judge
15