Oracle Corporation et al v. SAP AG et al
Filing
1157
Declaration of Tharan Gregory Lanier in Support of 1156 Opposition/Response to Motion Declaration of Tharan Gregory Lanier in Support of Defendants' Oppositions to Oracle's Motions in Limine filed bySAP AG, SAP America Inc, Tomorrownow Inc. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23)(Related document(s) 1156 ) (Froyd, Jane) (Filed on 5/10/2012)
EXHIBIT 23
Page 1
VALLEY FORGE INSURANCE COMPANY, a corporation, Plaintiff, vs. ZURICH
AMERICAN INSURANCE COMPANY, et al., Defendants.
Case No: C 09-2007 SBA
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
CALIFORNIA, OAKLAND DIVISION
2012 U.S. Dist. LEXIS 8378
January 23, 2012, Decided
January 25, 2012, Filed
PRIOR HISTORY: Valley Forge Ins. Co. v. Zurich Am.
Ins. Co., 2011 U.S. Dist. LEXIS 76061 (N.D. Cal., July
13, 2011)
COUNSEL: [*1] For Valley Forge Insurance Company,
a corporation, Plaintiff: William Dean Paoli, LEAD
ATTORNEY, Colliau, Elenius, Murphy, Carluccio,
Keener & Morrow, San Francisco, CA.
For Zurich American Insurance Company, Defendant:
Jonathan Gross, LEAD ATTORNEY, Bishop Barry
Drath, Emeryville, CA; William Dean Paoli, LEAD
ATTORNEY, Colliau, Elenius, Murphy, Carluccio,
Keener & Morrow, San Francisco, CA; Colin Mark
Adkins, BISHOP | BARRY | DRATH, Emeryville, CA.
JUDGES: SAUNDRA BROWN ARMSTRONG, United
States District Judge.
Plaintiff Valley Forge Insurance Company
("Plaintiff") brought this insurance coverage dispute
against Defendant Zurich American Insurance Company
("Defendant") to obtain reimbursement of defense costs
and settlement amounts paid in an underlying state court
action on behalf of Defendant's insured. The parties are
presently before the Court on Plaintiff's six motions in
limine. Dkt. 117. Plaintiff's motions in limine came on
regularly for hearing on January 23, 2012. William D.
Paoli appeared for Plaintiff. Jonathan Gross appeared for
Defendant. Having read and considered the papers [*2]
filed in connection with this matter, upon hearing the
arguments of counsel, and being fully informed, the
Court hereby GRANTS IN PART AND DENIES IN
PART the motions in limine, for the reasons stated below
and at the hearing.
I. DISCUSSION
OPINION BY: SAUNDRA BROWN ARMSTRONG
A. Motions In Limine
OPINION
A motion in limine is a procedural mechanism to
limit in advance testimony or evidence in a particular
area. United States v. Heller, 551 F.3d 1108, 1111 (9th
Cir. 2009). Under appropriate circumstances, a motion in
limine may be used to exclude inadmissible or prejudicial
evidence before it is offered at trial. See Luce v. United
States, 469 U.S. 38, 40 n. 2, 105 S. Ct. 460, 83 L. Ed. 2d
443 (1984). "Motions in limine are well-established
ORDER GRANTING IN PART AND DENYING IN
PART PLAINTIFF'S MOTIONS IN LIMINE
Docket 117.
Page 2
2012 U.S. Dist. LEXIS 8378, *2
devices that streamline trials and settle evidentiary
disputes in advance, so that trials are not interrupted
mid-course for the consideration of lengthy and complex
evidentiary issues." United States v. Tokash, 282 F.3d
962, 968 (7th Cir. 2002).
Hartford Casualty Ins. Co. v. Mt. Hawley Ins. Co., 123
Cal.App.4th 278, 20 Cal. Rptr. 3d 128 (2004). According
to Defendant, the "letter is exactly the same as the letter
from defense counsel relied upon by the Court" in
Hartford. As such, Defendant contends the letter is
"directly relevant and admissible." The Court disagrees.
B. Plaintiff's Motions In Limine
1. Motion In Limine No. 1
Plaintiff moves for an Order precluding Defendant
from offering evidence that the Plaintiff acted as a
volunteer when it provided a defense to Defendant's
insured and settled the underlying lawsuit on its behalf.
Plaintiff contends [*3] that the Court has ruled as a
matter of law that Plaintiff was not acting as a volunteer.
Defendant counters that the Court's determination in this
regard was made in the narrow context of a summary
judgment motion, and therefore a triable issue of fact on
the issue remains for trial. The Court agrees with
Plaintiff. As noted at the hearing, the Court has already
ruled on this issue. On July 14, 2011, this Court issued an
Order denying Defendant's second motion for partial
summary judgment. Dkt. 96. In that Order, the Court
concluded that Plaintiff did not act as a volunteer as a
matter of law. Id.
Accordingly, the Court GRANTS motion in limine
no. 1. Defendant shall not offer any evidence or argument
on the issue of whether Plaintiff acted as a volunteer
when it provided a defense to Defendant's insured and
settled the underlying lawsuit on its behalf.
2. Motion In Limine No. 2
Plaintiff seeks to exclude the introduction or mention
of Hathaway Dinwiddie Construction Company's
("Hathaway") defense counsel's letter of January 30, 2008
wherein defense counsel provides his opinion on the fault
allocation among those involved in the accident. This
letter was previously introduced in Defendant's [*4] first
motion for summary judgment. See Dkt. 33, Exh. W. At
that time, the Court rejected the admissibility of the letter
on the basis that "a defense attorney's opinion would
never go into evidence" on the issue of culpability. See
Dkt. 56 at 23-24.
Defendant, for his part, "respects that this Court has
expressed doubts on the probity of the letter and expects
the Court to give it the weight it deserves." Nonetheless,
Defendant argues that the letter is admissible under
Hartford is materially distinguishable from the
instant case, and therefore does not support Defendant's
position. In Hartford, the letter relied upon by the court
was written by a claim consultant employed by Plaintiff
Hartford Casualty Insurance Company, not an attorney
representing Defendant's insured. Hartford ,123
Cal.App.4th at 283-284, 291-292. The Court relied on the
letter, which provided a fault allocation [*5] among
those involved in the accident, as evidence that Plaintiff
could not establish as a matter of law that Defendant's
insured was solely negligent in causing the accident. Id.
at 291-292. Thus, as indicated at the hearing, contrary to
Defendant's contention, Hartford is not authority for the
proposition that Hathaway's defense counsel's letter is
admissible in this case.
Accordingly, the Court GRANTS motion in limine
no. 2. Defendant shall not introduce or mention
Hathaway's defense counsel's letter of January 30, 2008
at trial.
3. Motion In Limine No. 3
Plaintiff seeks to exclude a portion of the deposition
testimony of Fidel Carrasco ("Carrasco"), a foreman for
Reinhardt Roofing, Inc. ("Reinhardt"), on the grounds
that the testimony is inadmissible as improper lay
opinion, and inadmissible under Rule 403 of the Federal
Rules of Evidence because the probative value of the
testimony is substantially outweighed by its prejudicial
effect.
According to Plaintiff, "Mr. Carrasco's testimony
that he would have [had] his roofing crew get off of the
canopy if the Hathaway superintendent asked him to
spread out his men over the area of the canopy, is
inadmissible lay opinion." At the hearing, [*6] the Court
noted that Plaintiff had failed to properly identify the
specific portion of Mr. Carrasco's deposition testimony
that it seeks to exclude. Plaintiff's brief did not direct the
Court to the specific place in the record where the
objectionable testimony appears. This alone constitutes a
sufficient basis to deny the motion in limine. See
Schwarzer, Tashima & Wagstaffe, Cal. Prac. Guide: Fed.
Page 3
2012 U.S. Dist. LEXIS 8378, *6
Civ. Pro. Before Trial ยง 14.145.2 at 14-51 (TRG 2009)
("The Court is not obligated to consider matters not
specifically brought to its attention.").
In response to the Court's inquiry as to where the
objected-to deposition testimony could be located in the
record, counsel failed to provide a citation to the record.
Accordingly, the Court DENIES motion in limine no. 3.
4. Motion In Limine No. 4
Plaintiff seeks to exclude all references to the roof
canopy as being "wobbly" or loose prior to its failure. At
the hearing, Plaintiff withdrew this motion. As such, the
Court need not rule on motion in limine no. 4.
5. Motion In Limine No. 5
Plaintiff seeks to exclude the testimony of Anthony
C. Milo ("Milo"), a roofing consultant, on the grounds
that his expert opinion lacks foundation because it is [*7]
based on inadmissible hearsay, and is contrary to the
overwhelming evidence that the roof canopy was not
"wobbly" and that its collapse was a complete surprise to
the injured roofers.
As noted at the hearing, Rule 703 of the Federal
Rules of Evidence permits experts to render opinions even
if based on hearsay. Fed.R.Evid. 703; Carson Harbor
Village, Ltd. v. Unocal Corp., 270 F.3d 863, 873 (9th
Cir. 2001). Thus, Plaintiff's objection to the expert
testimony of Mr. Milo on this basis is without merit.
Further, to the extent Plaintiff seeks to exclude the expert
testimony of Mr. Milo on the ground that the testimony is
contrary to the overwhelming evidence, this is not a valid
basis for exclusion. See Humetrix, Inc. v. Gemplus
S.C.A., 268 F.3d 910, 919 (9th Cir. 2001) (noting that an
opposing party's proper challenge to the accuracy of an
expert's testimony is "not exclusion of the testimony, but,
rather, refutation of it by cross-examination and by the
testimony of its own expert witnesses."). Accordingly,
the Court DENIES motion in limine no. 5.
6. Motion In Limine No. 6
Plaintiff seeks to exclude the testimony of David
VanDerostyne
("VanDerostyne"),
a
structural
engineering expert, on [*8] the ground that his testimony
is irrelevant because his testimony is limited to
evaluating the negligence of DES Architects & Engineers
("DES"). According to Plaintiff, evidence of whether
DES was negligent is irrelevant because under California
law evidence of a third party's negligence is not relevant
to the determination of whether Defendant's insured, i.e.,
Hathaway, was "solely negligent" as that phrase is used
in subcontract indemnity agreements. In support of its
position, Plaintiff cites Southern Pacific Transportation
Co. v. Sandyland Protective Assn., 224 Cal.App.3d 1494,
274 Cal. Rptr. 626 (1990).
Defendant contends that Mr. VanDerostyne's
testimony is relevant because the issue of fault allocation
for the accident is not limited to the negligence of the
parties to the contract that contains the indemnity
provision (i.e., Reinhardt and Hathaway), and therefore
DES' negligence with respect to the accident is relevant.
Defendant argues that, contrary to Plaintiff's contention,
Sandyland does not support a different conclusion. In
addition, Defendant contends that Mr. VanDerostyne's
testimony is relevant because he will testify as to whether
the weight of the Reinhardt workers was a cause of the
[*9] roof canopy collapse. In response to this argument,
Plaintiff simply argues that testimony regarding the
weight of the Reinhardt employees on the roof canopy
does not show that Reinhardt or its employees were
negligent and is irrelevant; noting that the same
employees worked on other canopies and their weight did
not cause these canopies to fail.
The Court concludes that Plaintiff has failed to
demonstrate that Mr. VanDerostyne's testimony should
be excluded. First, the Court notes that Plaintiff conceded
at the hearing that it is undisputed that DES was at fault
for the accident giving rise to this suit. As such, there is
no need for Mr. VanDerostyne to testify at trial as to the
negligence of DES. Second, the Court rejects Plaintiff's
contention that the weight of the Reinhardt employees on
the roof canopy is irrelevant. The Court finds this
evidence relevant under Rule 401 of the Federal Rules of
Evidence. Fed.R.Evid. 401 ("Evidence is relevant if: (a) it
has any tendency to make a fact more or less probable
than it would be without the evidence; and (b) the fact is
of consequence in determining the action."). Mr.
VanDerostyne's testimony in this regard is relevant to the
determination [*10] of fault allocation among those
involved in the accident. At the hearing, Plaintiff did not
provide persuasive argument supporting a contrary
conclusion.
Finally, the Court finds that Plaintiff's contention
regarding the legal significance of Sandyland is not a
Page 4
2012 U.S. Dist. LEXIS 8378, *10
proper subject for a motion in limine. This issue should
have been raised in a motion for summary judgment, not
as an evidentiary dispute in a motion in limine. The Court
notes that Plaintiff has argued its position with respect to
Sandyland in its trial brief. As such, the Court finds it
unnecessary to address the legal significance of
Sandyland at this time.
1. Plaintiff's motions in limine are GRANTED IN
PART AND DENIED IN PART.
2. This Order terminates Docket 117.
IT IS SO ORDERED.
Dated: 1/23/12
Accordingly, the Court DENIES motion in limine
no. 6. Mr. VanDerostyne is not excluded from testifying
at trial.
/s/ Saundra B. Armstrong
II. CONCLUSION
United States District Judge
For the reasons stated above, IT IS HEREBY
ORDERED THAT:
SAUNDRA BROWN ARMSTRONG
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