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Helene V. Galen, As Trustee For the Louis J. Galen Revocable Trust of v. Avenue of the Stars Associates

March 1, 2011

HELENE V. GALEN, AS TRUSTEE FOR THE LOUIS J. GALEN REVOCABLE TRUST OF 1983, UDT DATED MAY 23, 1983, PLAINTIFF,
v.
AVENUE OF THE STARS ASSOCIATES, LLC, DEFENDANT.



The opinion of the court was delivered by: Honorable Ronald S.W. Lew Senior, U.S. District Court Judge

ORDER Re: Defendant's Motions in Limine [41][42][43][44] and Plaintiff's Motions in Limine [46][47][48][49] Defendant Avenue of the Stars Associates, LLC filed its Motions in Limine [41] [42] [43] [44] on October 04, 2010. Plaintiff Helene V. Galen filed her Motions in Limine [46] [47] [48] [49] on October 05, 2010. Both matters were originally set for hearing on January 04, 2011. Having taken both matters under submission on December 27, 2010, and having reviewed all papers submitted pertaining to these Motions, the Court NOW FINDS AND RULES AS FOLLOWS:

I. Defendant's Motions in Limine

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) states, in relevant part:

[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.

Fed. R. Civ. P. 26(a)(1)(A)(I).

Federal Rule of Civil Procedure 37(c)(1) states that if a party fails to provide information or identify a witness as required by Rule 26(a), "the party is not allowed to use that information or witness to supply evidence ... at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). Under Federal Rule of Civil Procedure 37(c)(1), the party facing sanctions therefore has the burden of showing that a failure to comply with Federal Rule of Civil Procedure 26 was "substantially justified or harmless." Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir. 2001). The District Courts have broad discretion in imposing discovery sanctions under Federal Rule of Civil Procedure 37. Ritchie v. United States, 451 F.3d 1019, 1026 (9th Cir. 2006).

B. Analysis

The Court DENIES 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 the testimony of Bill Pham, Corazon Canamaso, and Ethel Concepcion ("New Witnesses"). However, the Court finds that this ruling pertains only to the trial testimony of Bill Pham, Corazon Canamaso, and Ethel Concepcion and not to any other witnesses identified by Plaintiff after the discovery cut-off date had passed.

The Court finds that the prejudice to the Defendant from the late disclosure of the New Witnesses is not so severe as to warrant exclusion. While certainly late and past the discovery deadline, Plaintiff did serve Defendant with supplemental disclosures to inform Defendant about the New Witnesses two months before the original trial date. Moreover, the Defendant has been on notice with regard to the scope of Bill Pham's testimony because Bill Pham previously submitted to this Court a detailed Declaration in support of Plaintiff's Opposition to Defendant's Motion for Summary Judgment. Thus, the scope of Bill Pham's testimony has been known to the Defendant, and would not constitute a surprise. Additionally, Bill Pham's Declaration submitted to this Court in support of Plaintiff's Opposition to Defendant's Motion for Summary Judgment sets forth the scope of his conversations and discussions with both Corazon Canamaso and Ethel Concepcion.

Accordingly, the Court DENIES Defendant's Motion in Limine No. 1 to exclude at Trial testimony by Bill Pham, Corazon Canamaso, and Ethel Concepcion.

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, in relevant part:

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.

Fed. R. Civ. P. 56 (g).

Federal Rule of Evidence 401 defines relevant evidence, stating that, "[r]elevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable than it would be without the evidence." Fed. R. Evid. 401. Federal Rule of Evidence 402 provides that all irrelevant evidence is not admissible. Fed. R. Evid. 402.

B. Analysis

The Court GRANTS Defendant's Motion in Limine No. 2 to exclude the trial testimony of Robert Gilmore.

Robert Gilmore is the Subdivision District Manager in the Los Angeles Office of the California Department of Real Estate ("DRE"). Plaintiff stated that she anticipated that Robert Gilmore would testify regarding the DRE's interpretation of the requirements and obligations imposed upon the sellers of lots by the California Subdivided Lands Act ("CSLA"). Specifically, Plaintiff designated Robert Gilmore as an expert witness to testify about the issue of whether the DRE interprets the CSLA as requiring that a prospective buyer must be provided with a receipt for the current public report and sign that receipt before signing a purchase agreement.

On August 24, 2010, the Court issued an Order [29], with regard to both Plaintiff's and Defendant's Motions for Summary Judgment [11, 15], finding that the Defendant did not violate the CSLA by obtaining Plaintiff's signature on the Receipt after Plaintiff signed the Agreement. As such, Plaintiff has informed the Court that she will not pursue her theory of liability that Defendant violated the ...


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