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Ramos Oil Recyclers, Inc. v. Awim

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


April 15, 2009

RAMOS OIL RECYCLERS, INC. DBA RAMOS ENVIRONMENTAL SERVICES, PLAINTIFF,
v.
AWIM, INC., JULIE C. NELSON, DEFENDANTS.
AWIM, INC., JULIE C. NELSON, COUNTER-CLAIMANTS,
v.
RAMOS OIL RECYCLERS, INC. DBA RAMOS ENVIRONMENTAL SERVICES, COUNTER-DEFENDANT.

The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER

On February 5, 2009, Plaintiff filed a motion to disqualify Defendants' expert witness Charles Corcoran, arguing in essence that Corcoran, who is a state employee, is precluded from giving expert testimony by California Government Code § 19990. This section provides "[a] state . . . employee shall not engage in any employment, activity, or enterprise which is clearly inconsistent, incompatible, in conflict with, or inimical to his or her duties as a state . . . employee." However, this section also provides "[e]ach appointing power shall determine . . . those activities which, for employees under its jurisdiction, are inconsistent, incompatible or in conflict with their duties as state . . . employees." "Appointing power" is defined under California Government Code § 18524 as "a person or group having authority to make appointments to positions in the State civil service." In light of the appointing power's authority to determine which activities violate § 19990, Plaintiff has not shown why its motion on this ground is appropriate for decision by this Court.

Further, Plaintiff argues Corcoran should be disqualified because Plaintiff anticipates that the testimony Corcoran will give would constitute inadmissible legal conclusions. However, the question whether an attorney seeks to have an expert "improperly [give a] legal conclusion[]" can be decided "during trial" in response to an objection. Lost Arrow Corp. v. Dedola Intern., Inc., No. CV 03-05797, 2005 WL 6124199, at *4 (C.D. Cal. June 16, 2005).

Therefore, the motion is denied.

20090415

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