United States of America v. 242.93 Acres of Land et al

Filing 105

ORDER Granting 84 Motion in Limine 1; Denying as Moot 85 Motion in Limine 2; Denying 86 Motion in Limine 3; Denying Defendant's 92 Motion in Limine. Signed by Judge Roger T. Benitez on 10/16/2012. (knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

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CASE NO. 10cv1133 BEN (CAB)
Plaintiff,

ORDER RE: MOTIONS IN LIMINE

vs.
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(Docket Nos. 84, 85, 86, and 92)
242.93 ACRES OF LAND, et al.

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Defendants.
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INTRODUCTION

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The United States has filed three motions in limine: (1) to exclude all evidence “allegedly

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supporting David Wick’s opinion of value;” (2) to exclude all evidence of possible future takings

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over the subject property; and (3) to exclude all evidence of comparable sales relied on by

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Defendants. The Defendants have also filed a motion in limine to exclude the expert testimony of

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the United States’ appraiser, Stephen Roach, and evidence supporting his opinion. For the reasons

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stated below, the United States’ motion in limine No. 1 is granted. The United States’ motions in

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limine Nos. 2 and 3 are denied. The Defendants’ motion in limine is denied.

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BACKGROUND

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On May 25, 2010, the United States filed a Complaint and Declaration of Taking

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condemning a temporary, non-exclusive, right to enter Defendants’ property for twelve months.

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At trial, both parties will present evidence going to the value of the taking.
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DISCUSSION
I. United States Motion in Limine No. 1.
The United States moves to exclude evidence supporting the valuation opinion testimony

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of Mr. David Wick. Wick’s opinion was to be offered by the Defendants. However, this Court

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has excluded the expert opinion of Wick. The United States now moves to exclude some 40

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documents that Wick produced at his second deposition. These documents evidence property

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transactions that the Defendants seek to identify as comparable leases. The United States argues

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that these documents/leases should be excluded along with Wick’s opinion testimony. The United

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States also argues that these documents/leases should be excluded because they were first

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produced by the Defendants long after the close of discovery.

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The Court agrees. Since Wick will not be permitted to offer opinion testimony, the

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documents and leases supporting his opinion testimony will be excluded, unless a sufficient

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foundation is laid for each document or lease by another qualified witness. “[T]here is a

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distinction between admitting a comparable sale as direct proof of a property’s value and allowing

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an expert to refer to the comparable sales in explaining his/her own valuation of a property.”

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United States v. 87.89 Acres of Land, Case No. Civ. F03-6064 AWILJO, 2005 WL 2810641, *18

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(E.D. Cal. Oct. 25, 2005) (citing United States v. Johnson, 285 F.2d 35, 40-41 (9th Cir. 1960)).

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These excluded documents are identified as exhibits lettered: “H” through “Z”, and, “AA” through

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“AU.”

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Moreover, while Defendants point out that 32 of the 40 documents were also produced

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prior to the discovery cutoff, at least eight of these 40 documents were not disclosed until well

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after the discovery deadline. As a discovery sanction under FRCP Rule 37, these eight documents

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may not be introduced by the Defendants for any reason. These eight documents are identified by

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the Defendants as exhibits lettered: “O,” “AA,” “AE,” “AM,” “AN,” “AO,” “AP,” and “AU.”

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II. United States Motion in Limine No. 2.

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The United States anticipates that the Defendants will attempt to use evidence of possible

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future takings as evidence to prove damages to the subject property. The Defendants have

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responded saying that is not the intent. Accordingly, this motion in limine is DENIED as moot.
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III. United States Motion in Limine No. 3.

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The United States moves to exclude evidence of 21 transactions relied on by the

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Defendants’ expert, Mr. Randy Tagg. The United States argues that the 21 property transactions

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are not suitably comparable to the right of entry taken by the United States.

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This Court will permit Tagg to testify as an expert witness. As an expert witness, his

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opinion will be based upon property transactions and values that, in his opinion, are comparable.

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The United States will have an opportunity on cross-examination to probe and explore the

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characteristics and values of the comparables upon which Tagg’s opinion relies. See United States

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v. 429.59 Acres of Land, 612 F.2d 459, 462 (9th Cir. 1980) (“Comparable sales may be cited by the

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expert as a basis for his opinion on the value of the property. When sales of other property are

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used as a basis of expert testimony, the requirement of showing similarity between the subject

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property and the other sales is not as rigorous as it is when the sales of other property are offered

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as substantive proof of value. Instead, the proper inquiry is whether the expert has made careful

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inquiry into the facts of the other sales, and whether his opinion is founded upon such careful

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inquiry. In situations where there are few instances of comparable sales in recent times, the expert

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is only expected to make a reasonable estimate of the market value of the subject property after

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examining all the relevant facts.”) (citations omitted); see also Johnson, 285 F.2d at 40-41. This

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motion in limine is denied.1

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IV. The Defendants’ Motion in Limine

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The Defendants move to preclude the expert testimony of the United States’ appraiser, Mr.

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Stephen Roach. The Defendants argue that Roach’s testimony is based on inadmissible evidence

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of 46 right of way easements, the United States’ use of the easement taken, and statements of

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permissive entry without easements. The Defendants also seek to exclude Roach’s ultimate

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opinion of value.

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As an expert witness, Roach’s opinion will also be based upon property transactions and

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This Court’s denial of any motion in limine does not necessarily mean that the evidence will
be admitted at trial. Hawthorne Partners v. AT & T Technologies, Inc., 831 F. Supp. 1398, 1401 (N.D.
Ill. 1993). “The court will entertain objections on individual proffers as they arise at trial, even though
the proffer falls within the scope of a denied motion in limine.” Id.
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values that, in his opinion, are comparable. The Court will not probe with a scalpel, in the

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operation room of a motion in limine, the basis for an expert’s opinion. “Where, for any reason,

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property has no market, resort must be had to other data to ascertain its value; and, even in the

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ordinary case, assessment of market value involves the use of assumptions, which make it unlikely

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that the appraisal will reflect true value with nicety.” United States v. Miller, 317 U.S. 369, 374

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(1943) (citations omitted). The Defendants will also have an opportunity on cross-examination to

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probe and explore the characteristics and values of the comparables upon which Roach’s opinion

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relies. 429.59 Acres of Land, 612 F.2d at 462; Johnson, 285 F.2d at 40-41. This motion in limine

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is denied.2

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CONCLUSION
The United States’ motion in limine No. 1 is granted as follows: the documents and leases

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supporting Wick’s opinion testimony will be excluded, unless a sufficient foundation is laid for

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each document or lease by another qualified witness. These documents are identified as exhibits

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lettered: “H” through “Z”, and, “AA” through “AU.” Moreover, eight documents may not be

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introduced by the Defendants for any reason (Exhibits “O,” “AA,” “AE,” “AM,” “AN,” “AO,”

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“AP,” and “AU”).

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The United States’ motion in limine No. 2 is denied as moot.

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The United States’ motion in limine No. 3 is denied.

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The Defendants’ motion in limine is denied.

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IT IS SO ORDERED.

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DATED: October 16, 2012

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Hon. Roger T. Benitez
United States District Judge

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See n.1, supra.
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