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

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


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 CSLA by failing to obtain a signed Receipt from Plaintiff before Plaintiff signed the Purchase Agreement.

Therefore, because the issue on which Robert Gilmore was expected to testify has already been ruled on by this Court, and because it appears that neither party will pursue this issue at Trial, the Court GRANTS Defendant's Motion in Limine No. 2 to exclude the trial testimony of Robert Gilmore.

3. Defendant's Motion in Limine No. 3 To Exclude The Trial Testimony Of Bill Pham Regarding His Review Of The Documents Provided To Him By Plaintiff And His Investigation As To Whether She Was Provided With The March Property Report Before She Signed The Purchase Agreement

A. Legal Standard

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.

Under Federal Rule of Evidence 403, even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Fed. R. Evid. 403. Moreover, under Federal Rule of Evidence 602, a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Fed. R. Evid. 602.

B. Analysis The Court DENIES Defendant's Motion in Limine No. 3 to exclude the trial testimony of Bill Pham regarding his review of the documents provided to him by Plaintiff and his investigation as to whether Plaintiff was provided with the March Property Report before she signed the Purchase Agreement. The Court finds that Bill Pham's testimony would be directly relevant to the ultimate issue in this case of whether Plaintiff was given the March 28, 2008 Property Report. However, the Court notes that Bill Pham's testimony will still be subject to evidentiary objections that may be raised by the Defendant at Trial.

4. Defendant's Motion in Limine No. 4 To Exclude Evidence Or Argument That Defendant Was Required To Have Plaintiff Sign The Receipt For The March 28, 2008 Public Report Before Signing The Purchase Agreement

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. 4 to exclude evidence or argument that Defendant was required to have Plaintiff sign the Receipt for the March 28, 2008 Public Report before signing the Purchase Agreement.

The Court has already addressed, as a legal matter, the issue of whether the Defendant had to have obtained a receipt for the March Property Report prior to the time that Plaintiff signed the Purchase Agreement. In its August 24, 2010 Order [29], the Court found that the Defendant did not violate the CSLA by obtaining Plaintiff's signature on the Receipt after Plaintiff signed the Agreement. Specifically, the Court reasoned that the Receipt's language acknowledges that the Receipt's signatory may have already signed a purchase agreement based on a conditional property report, and subsequently may be signing the Receipt for a final property report.

Accordingly, the Court GRANTS Defendant's Motion in Limine No. 4 to exclude evidence or argument that Defendant was required to have Plaintiff sign the Receipt for the March 28, 2008 Public Report before signing the Purchase Agreement.

II. Plaintiff's Motions in Limine

1. Plaintiff's Motion in Limine No. 1 To Preclude Defendant From Presenting Any Evidence Or Argument Relating To The "100 Lot Exemption"

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).

B. Analysis

Plaintiff argues that the Court's August 24, 2010 Order [29] establishes that Defendant fails to qualify for the "100 Lot Exemption." Therefore, Plaintiff contends that there is no reason for Defendant to present any evidence or argument on this issue at Trial. The Court GRANTS Plaintiff Galen's Motion in#:2800

Limine No. 1 to Preclude Defendant from Presenting Any Evidence or Argument Relating to the "100 Lot Exemption."

The Court finds that its August 24, 2010 Order [29] established that Defendant failed to qualify for the "100 Lot Exemption." Therefore, pursuant to Federal Rule of Civil Procedure 56(g)*fn1 , this fact should be treated as established. Accordingly, the Court GRANTS Plaintiff's Motion in Limine No. 1 to preclude Defendant from presenting any evidence or argument relating to the "100 Lot Exemption."

2. Plaintiff's Motion in Limine No. 2 To Preclude Defendant From Presenting Any Evidence Or Argument That It Purportedly Complied With The ISLA And CSLA By Providing Plaintiff With The Expired December 17, 2007 Property Report

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).

B. Analysis

The Court GRANTS Plaintiff's Motion in Limine No. 2 to preclude Defendant from presenting any evidence or argument that it purportedly complied with the ILSA and CSLA by providing Plaintiff with the expired December 17, 2007 Property Report.

The Court has already addressed, as a legal matter, the issue of whether an expired property report can still suffice as complying with the Interstate Land Sales Full Disclosure Act ("ILSA") and CSLA in its August 24, 2010 Order [29]. The Court found that Plaintiff's receipt of the December 17, 2007 Property Report was insufficient to constitute compliance with the ILSA and CSLA. Specifically, the Court found that it was whether Plaintiff was in actual receipt of the March 28, 2008 Property Report as opposed to the December 17, 2007 Property Report that is controlling on the issue of whether Defendant violated the ISLA.

Accordingly, the Court GRANTS Plaintiff's Motion in Limine No. 2 to preclude Defendant from presenting any evidence or argument that it purportedly complied with the ILSA and CSLA by providing Plaintiff with the expired December 17, 2007 Property Report.

3. Plaintiff's Motion in Limine No. 3 To Exclude Any Evidence Or Argument That Defendant's Alleged

Violation Of The ISLA And CSLA Is Excused Because The Plaintiff Purportedly Was Not "Defrauded" Or Because Plaintiff Purportedly Has Buyer's Remorse

A. Legal Standard 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 IN PART AND DENIES IN PART Plaintiff's Motion in Limine No. 3. The Court GRANTS Plaintiff's Motion in Limine No. 3 with regard to any evidence or argument that Defendant's violation of the ISLA and CSLA is excused because Plaintiff was not purportedly misled or defrauded. However, Plaintiff's Motion in Limine No. 3 is DENIED with regard to evidence or argument that Plaintiff's purported motive or reason for seeking to rescind the Purchase Agreement is due to buyer's remorse or a change in market conditions.

Defendant has not objected to or opposed Plaintiff's request that this Court exclude any evidence or argument that Defendant's violation of the ILSA and CSLA is excused because Plaintiff was not misled or defrauded. Accordingly, the Court GRANTS Plaintiff's Motion in Limine No. 3 to exclude any evidence or argument that Defendant's violation of the ISLA and CSLA is excused because Plaintiff was not purportedly misled or defrauded.

With respect to evidence or argument that Plaintiff's purported motive or reason for seeking to rescind the Purchase Agreement is due to buyer's remorse or a change in market conditions, the Court DENIES Plaintiff's Motion in Limine No. 3. At Trial, the Court will be asked to decide whether Plaintiff received the March 28, 2008 Report. In order to rescind the Agreement under ILSA or CLSA, Plaintiff has the burden of proving that she did not. The Court finds that Plaintiff's motivation for bringing this Action is relevant to her credibility and the Court's determination of the ultimate issue in this case of whether she received the March 28, 2008 Report.

Accordingly, the Court DENIES Plaintiff's Motion in Limine No. 3 to exclude evidence or argument that Plaintiff's purported motive or reason for seeking to rescind the Purchase Agreement is due to buyer's remorse or a change in market conditions.

4. Plaintiff's Motion in Limine No. 4 To Exclude The Testimony Of Erica Llanos

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 Plaintiff's Motion in Limine No. 4

to exclude the testimony of Erica Llanos. The Court finds that Defendant has substantially justified its failure to timely supplement its initial disclosures. Defendant's counsel received Ms. Llanos' contact information on July 09, 2010, about a week after the discovery cut-off date of June 30, 2010. [See Declaration of Alicia Vaz ("Vaz Decl."), ¶¶ 7, 10.] Within twenty days of receipt of this information, Defendant filed its supplemental disclosures providing Plaintiff with Ms. Llanos' phone number and email address. [Id. at ¶ 17.]

Federal Rule of Civil Procedure 26 does not require a party to provide contact information for a witness it has disclosed when it does not have that information. See Fed. R. Civ. P. 26 (a)(1)(A)(I). Defendant has informed the Court that it has provided all of the information that it has about Ms. Llanos and her whereabouts to Plaintiff, including an email address and telephone number in its supplemental disclosures. [Vaz Decl., ¶¶ 3-5, 16-18.] Accordingly, the Court DENIES Plaintiff's Motion in Limine No. 4 to exclude the testimony of Erica Llanos.

IT IS SO ORDERED.


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