Adams v. BMW of North America, LLC et al

Filing 53

Notice and Order Providing Tentative Rulings re: Motions in Limine. As these rulings are tentative, the Court looks forward to the oral arguments of counsel at the hearing. Signed by Judge Michael M. Anello on 8/3/2018.(rmc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GEORGE ADAMS,

Case No.: 17cv68-MMA (KSC)
Plaintiff,

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v.

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NOTICE AND ORDER PROVIDING
TENTATIVE RULINGS RE:
MOTIONS IN LIMINE

BMW OF NORTH AMERICA, LLC,

[Doc. Nos. 48, 49]

Defendant.

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On August 6, 2018 at 2:30 p.m., the parties in this action will appear before the

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Court for a final pretrial conference and hearing on the parties’ pending motions in

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limine. See Doc. Nos. 48, 49. In anticipation of the hearing, the Court issues the

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following tentative rulings on the pending motions:
PLAINTIFF’S MOTIONS

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1.

The Court tentatively DEFERS ruling on Plaintiff’s motion to exclude

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testimony that Plaintiff did not avail himself or participate in a third-party dispute

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program pending clarification on whether Plaintiff seeks a civil penalty pursuant to

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California Civil Code § 1794(c) or California Civil Code § 1794(e). See Jernigan v.

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Ford Motor Co., 24 Cal. App. 4th 488, 491-92 (Ct. App. 1994); see also Cal. Civ. Code §

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1794(e)(5) (“If the buyer recovers a civil penalty under subdivision (c), the buyer may

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not also recover a civil penalty under this subdivision for the same violation.”).
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17cv68-MMA (KSC)

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2.

The Court tentatively DEFERS ruling on Plaintiff’s motion to exclude

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expert opinion testimony from lay witnesses. The Court will exclude opinion testimony

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elicited from lay witnesses under the Federal Rules of Evidence if warranted at trial. See

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Fed. R. Evid. 701.

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3.

The Court tentatively DEFERS ruling on Plaintiff’s motion to exclude

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undisclosed witnesses. Pursuant to Federal Rule of Civil Procedure 26(a)(3), a party is

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under no obligation to disclose witnesses it intends to use for impeachment. Fed. R. Civ.

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P. 26(a)(3). That exception does not extend to rebuttal witnesses, and so rebuttal

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witnesses that have not been identified pursuant to Rules 26(a) and 26(e) of the Federal

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Rules of Civil Procedure may not testify absent a showing of substantial justification or

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harmlessness from failure to disclose. See Fed. R. Civ. P. 37(c).

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4.

The Court tentatively DENIES Plaintiff’s motion to exclude defense expert

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Toshio Shintaku from testifying or any of his opinions not offered in his deposition

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because Plaintiff’s motion is untimely pursuant to the Undersigned’s Chambers Rules.

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See Civ. Chambers R. IX at n.3. Alternatively, the Court tentatively finds that Mr.

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Shintaku’s opinions are supported by sufficient foundation, are not speculative, help the

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trier of fact, and are not unduly prejudicial.
DEFENDANT’S MOTIONS

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1.

The Court tentatively DEFERS ruling on Defendant’s motion to exclude

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references to other vehicles, claims, or incidents pending an attempt to put forth such

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evidence at trial and a showing of sufficient similarity between the instant action and

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other vehicles, claims, or incidents. See White v. Ford Motor Co., 312 F.3d 998, 1009

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(9th Cir. 2002) (stating that a showing of substantial similarity is required when a

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plaintiff attempts to introduce evidence of other accidents as direct proof of negligence, a

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design defect, or notice of a defect); Four Corners Helicopters, Inc. v. Turbomeca, S.A.,

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979 F.2d 1434, 1440 (10th Cir. 1992) (noting that the substantial similarity requirement is

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relaxed when the evidence of other incidents is used to demonstrate notice or awareness

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of a potential defect).
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17cv68-MMA (KSC)

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2.

The Court tentatively GRANTS Defendant’s motion to exclude evidence of

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emotional distress. The Court tentatively finds that Plaintiff’s subjective emotional

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distress is irrelevant and likely to be unduly confusing and consumptive of time. See

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Lundy v. Ford Motor Co., 87 Cal. App. 4th 472, 478 (Ct. App. 2001) (stating that an

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objective test determines whether a vehicle’s nonconformity is substantial).

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3.

The Court tentatively DEFERS ruling on Defendant’s motion to exclude

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statements offered by Plaintiff of the dealership or its personnel pending Plaintiff’s

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showing of the requisite agency element or that the statement was otherwise authorized

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by Defendant. See Fed. R. Evid. 801(d)(2)(C)-(D); see also Gray v. Mazda Motor of

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Am., Inc., No. SACV 08-279-JVS (ANx), 2009 U.S. Dist. LEXIS 138461, at *10 n.5

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(C.D. Cal. Feb. 6, 2009) (stating that “the Song-Beverly Act does not have the

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evidentiary force of making the statement of a dealer an admission of the manufacturer as

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a matter of law”).

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4.

The Court tentatively DENIES Defendant’s motion to exclude Plaintiff’s

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expert Dan Calef from testifying because the motion is untimely. See Civ. Chambers R.

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IX at n.3. Alternatively, the Court tentatively finds that Mr. Calef is qualified to testify as

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an expert in this case and that his expert report meets the minimum requirements of

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Federal Rule of Civil Procedure 26(a)(2)(B).

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As these rulings are tentative, the Court looks forward to the oral arguments of
counsel at the hearing.
IT IS SO ORDERED.
Dated: August 3, 2018

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