United States District Court, N.D. California, San Jose Division
ORDER RE MOTIONS IN LIMINE [RE: ECF 162, 163, 164,
165, 166, 167, 169, 170, 171]
LAB SON FREEMAN, United States District Judge.
preparation for trial which is set to begin on August 19,
2019, the parties submitted nine motions in limine. The Court
held a final pretrial conference on June 21, 2019. With
respect to each side's motions in limine
(“MILs”), the Court rules as follows, for the
reasons set forth below and as stated on the record at the
MOTIONS IN LIMINE
Plaintiff's Motion in Limine No. 1 Regarding Undisclosed
Witnesses Stephanie Spurlock, Adam Hamburg, and Sonya Miller
Phyllis Sandigo moves to preclude under Federal Rule of Civil
Procedure (“FRCP”) 37(c)(1) three of Defendant
Ocwen Loan Servicing, LLC's (“Ocwen”)
witnesses from testifying at trial because Ocwen did not
disclose these witnesses to Plaintiff until May 31, 2019, in
violation of FRCP 26(a)(1)(A). See ECF 162. The
three witnesses are (1) Stephanie Spurlock, a representative
of Western Progressive who will testify about the notices of
default sent to Plaintiff and the recording and rescission of
the notice; (2) Sonya Miller, a representative of Assurant
Partners who will testify about insurance policy loss and the
processing of Plaintiff's insurance claim; and (3) Adam
Hamburg, Ocwen's original defense counsel who will
testify about Plaintiff's written discovery and responses
to Plaintiff's qualified written requests
(“QWR”) under the Real Estate Settlement
Procedures Act. See ECF 162 at 2; ECF 179 at 2-5.
counters that these witnesses should be allowed to testify
because either Plaintiff knew of them before filing the
action, or the witnesses were made known to Plaintiff during
the discovery process, or the failure to disclose is
harmless. ECF 179 at 2. As to Ms. Spurlock, Ocwen argues that
Plaintiff has known about Western Progressive's role
since she received its demand letters in January 2017, and
she was aware of the notice of default and its rescission
because she mentions them in her FAC. Id. at 3.
Ocwen's 30(b)(6) witness in his deposition in October
2018 also made clear to Plaintiff's counsel that Western
Progressive and Ocwen are separate entities. As to Ms.
Miller, Ocwen argues that Plaintiff has known about
third-party Assurant since October 2018, when Ocwen's
counsel informed Plaintiff's counsel about Assurant's
independent role in handling insurance issues for Ocwen.
Id. at 4. Finally, as to Mr. Hamburg, Ocwen argues
that Plaintiff has known about Mr. Hamburg's role since
at least December 2017 when he responded to Plaintiff's
QWRs and since he prepared Ocwen's initial responses to
Plaintiff's discovery requests. Id. at 5.
discussed on the record at the pretrial conference,
Plaintiff's MIL No. 1 is GRANTED IN PART AND
DENIED IN PART.
with respect to Stephanie Spurlock is DENIED on the condition
that Ms. Spurlock be made available for deposition (which can
be by video) with the costs of the deposition to be covered
by Ocwen. Though Ms. Spurlock signed the notice of
rescission, she was not otherwise specifically disclosed to
Plaintiff, and Plaintiff was never put on notice that Ms.
Spurlock might testify as to the notices of default, which
were sent well before the rescission was recorded. Because
Ocwen neither added Ms. Spurlock to its initial disclosures
nor otherwise made her existence or role known to Plaintiff,
Ocwen violated FRCP 26(e). This failure to disclose was not
substantially justified because, though Plaintiff knew of
Western Progressive's role, Ocwen should have determined
who would be testifying on Western Progressive's behalf
and disclosed that person's identity to Plaintiff.
Moreover, it was prejudicial because Ms. Spurlock's
testimony about the notices of default will directly pertain
to one of Plaintiff's theories of liability under the
Rosenthal Act. However, the harsh sanction of exclusion under
FRCP 37 is not necessary here because the prejudice to
Plaintiff can otherwise be cured. See Alfred E. Mann
Found. for Sci. Research v. Cochlear Corp., No. CV
07-8108-FMO, 2014 WL 12586105, at *18 (C.D. Cal. Jan. 3,
2014). Because Ms. Spurlock's testimony will be limited
and there are almost two months until trial, there is
sufficient time for Plaintiff to take Ms. Spurlock's
deposition, with Ocwen covering the costs but not the
same reasons, the MIL with respect to Sonya Miller is DENIED
on the condition that Ms. Miller be made available for
deposition (which can be by video) with the costs of the
deposition to be covered by Ocwen. As with Ms. Spurlock,
Ocwen never disclosed Ms. Miller to Plaintiff, and thus
violated FRCP 26(e). And Ocwen's failure to do so was
neither substantially justified nor harmless. However, given
the limited nature of Ms. Miller's testimony and the
amount of time before trial, an appropriate sanction under
FRCP 37 is to allow Plaintiff's attorney to depose Ms.
Miller, with costs covered by Ocwen.
the motion with respect to Mr. Hamburg is GRANTED IN PART AND
DENIED IN PART. The Court finds that with respect to the
QWRs, Mr. Hamburg's involvement was sufficiently
disclosed to Plaintiff to satisfy FRCP 26(e) because Mr.
Hamburg signed Ocwen's responses to certain QWRs and was
the named recipient of at least one, as discussed at the
conference. As such, Mr. Hamburg can testify about the QWRs
and related events. However, Mr. Hamburg is not permitted to
testify with respect to Ocwen's responses to
Plaintiff's discovery requests because Plaintiff would
have no reason to believe that an attorney would testify
about his client's discovery responses at trial, such
that Mr. Hamburg was not sufficiently disclosed under FRCP
26. Moreover, this failure to disclose him is neither
substantially justified nor harmless because the nature of
his testimony on these issues is still unknown to Plaintiff
and Ocwen should have made it known to Plaintiff that it
intended to have Mr. Hamburg testify about litigation issues
much sooner so Plaintiff could prepare to and take Mr.
Plaintiff's Motion in Limine No. 2 Regarding Undisclosed
Witness James T. Broome, Esq. (ECF 164)
moves to preclude under FRCP 37(c)(1) Ocwen's witness
James T. Broome from testifying at trial because Ocwen did
not disclose Mr. Broome to Plaintiff before May 31, 2019, in
violation of FRCP 26(a)&(e). See ECF 164.
Plaintiff describes Mr. Broome as Ocwen's lead attorney
in Plaintiff's bankruptcy action, but Ocwen describes him
as a former member of Ocwen's bankruptcy department and
current paralegal at Ocwen. ECF 189 at 3-4. Plaintiff notes
that throughout the litigation, Ocwen has relied on its
30(b)(6) witness Kevin Flannigan to testify about the
bankruptcy proceedings, such that Plaintiff was led to
believe that only Mr. Flannigan would testify about these
issues. She also argues that Mr. Broome should be excluded
because he was not disclosed as an expert witness but plans
to offer expert opinions and impermissible legal opinions,
and his testimony will conflict with this Court's summary
judgment ruling on res judicata. See ECF 164 at 3-5.
argues that Mr. Broome should not be excluded because Ocwen
disclosed its bankruptcy preclusion theory to Plaintiff in
October 2018, and Plaintiff did not attempt to conduct
discovery related to this theory by, for example, deposing
anyone from Ocwen's bankruptcy department. ECF 189 at 3.
Moreover, Ocwen argues that Mr. Broome is not an attorney and
will not be offering expert or legal opinions, but instead
will provide testimony related to Ocwen's bankruptcy
practices. Id. at 3-4, 6. Ocwen admits that it never
disclosed Mr. Broome by name to Plaintiff but argues that
Plaintiff is not prejudiced because Ocwen disclosed that
members of its bankruptcy department (specifically, Mr.
Muldoon and Ms. Brophy) would be percipient witnesses.
Id. at 4-5. Ocwen then notes that even if it did
prejudice Plaintiff, Plaintiff can still depose Mr. Broome,
Mr. Broome's testimony will not disrupt trial, and Ocwen
did not act in bad faith. Id. at 5-6.
discussed on the record at the pretrial conference,
Plaintiff's MIL No. 2 is GRANTED, but
Ocwen is allowed to amend its witness list to include Mr.
Muldoon or Ms. Brophy. Mr. Broome was never disclosed to
Plaintiff in violation of FRCP 26, and the Court cannot say
that this failure was justified or harmless FRCP Rule 37. The
testimony of an individual from Ocwen's bankruptcy
department is critical to Ocwen's defense and allowing an
undisclosed party to testify on such issues would prejudice
Plaintiff. Moreover, Ocwen acknowledges that Mr. Muldoon and
Ms. Brophy are “one and the same” with Mr.
Broome, which implies that there was no justifiable reason
not to similarly disclose Mr. Broome.
said, the Court finds that Mr. Muldoon and Ms. Brophy were
sufficiently disclosed to Plaintiff during Mr.
Flannigan's 30(b)(6) deposition. Mr. Flannigan told
Plaintiff's attorney that he had spoken to Mr. Muldoon
and Ms. Brophy about the bankruptcy's effect on the
servicing of Plaintiff's loan. See ECF 189-4 at
16:22-25. Plaintiff's attorney followed up with questions
about what Mr. Flannigan discussed with each of these
individuals, and Mr. Flannigan described the information that
each of these witnesses provided to him about Ocwen's
processes. Id. at 18:17-20:12. Thus, these
individuals and their areas of knowledge were sufficiently
disclosed to Plaintiff during discovery. As such, Ocwen may
amend its witness list to include either of these
individuals. Plaintiff will not have an opportunity to depose
whomever Ocwen selects.
Plaintiff's Motion in Limine No. 3 regarding Medical
Records About Jury Service (ECF 165)
moves to exclude certain medical records from September 2012
and 2015 in which Plaintiff asked her doctor to write a
letter excusing her from jury service because she cannot hear
or see well. See ECF 165. Plaintiff argues that
these records are not relevant under Federal Rules of
Evidence (“FRE”) 401 and 402 and that the
probative value is substantially outweighed by the potential
prejudice under FRE 403 because they are outside the relevant
timeframe and the jury may find it unfair that Plaintiff
sought to get out of jury duty. The emails are from September
2012 and June 2015; Plaintiff alleges her emotional distress
began in December 2015. ECF 165 at 2 and Attachment.
Plaintiff also mentions that she will raise relevance
objections to most of the 1, 095 pages of medical records
that Ocwen seeks to introduce.
argues that these records are relevant to Plaintiff's
alleged emotional distress damages because they indicate
other potential sources for her alleged stress and anxiety
than Ocwen's actions here. ECF 190 at 2-4. Ocwen also
argues that the records are not unduly prejudicial under Rule
discussed on the record at the pretrial conference,
Plaintiff's MIL No. 3 is DENIED. The
email evidence is admissible under FRE 401 and 402 because it
is relevant to whether Plaintiff's emotional distress may
have been caused by other factors than Ocwen's alleged
actions. See, e.g., Luna v. Cty. of Los
Angeles, No. 07-CV-04715-SJO, 2008 WL 11410093, at *5
(C.D. Cal. Sept. 25, 2008). Moreover, it is admissible under
FRE 403 because its probative value is not substantially
outweighed by its potential to prejudice Plaintiff. This
evidence is directly probative of other causes of
Plaintiff's emotional distress besides Ocwen. Moreover,
Plaintiff does not argue that the statements are untrue.
Introduction of this evidence will not prejudice Plaintiff,
as jurors understand that certain individuals need to be
excused from jury service due to legitimate limitations.
extent Plaintiff is requesting that the Court exclude some
larger portion of the 1, 095 records, the request is
DENIED without prejudice to Plaintiff's
combing through the records and identifying those that are
truly irrelevant or unduly personally invasive. Introduction
of such a large number of medical records would not only
waste time but would also likely include cumulative evidence.
Moreover, to the extent that these documents are not from the
relevant time period, they are likely to be less relevant.
The parties are directed to meet and confer to narrow the
number of documents. Plaintiff also is not precluded from
objecting to certain documents as they are introduced at
trial. The Court notes that Ocwen represented at the hearing
that it only intends to introduce documents from 2015 and
Plaintiff's Motion in Limine No. 4 Regarding Legal