Case Number: BC602509 Hearing Date: April 02, 2018 Dept: 46

Case Number: BC602509
WILLIAM MORSCHAUSER VS STATE BOARD OF EQUALIZATION

Filing Date: 11/25/2015
Case Type: Other Compl-not Tort or Complex (General Jurisdiction)

April 2, 2018
Continued Hearing on Motion in Limine #2
Regarding Expert Ian Foster

TENTATIVE RULING

MOTION IN LIMINE #2 to Exclude Expert Testimony of Ian Foster. For the reasons stated in the ruling on 2/26/2018, this motion is treated not as a motion for reconsideration but as continuation of the hearing on the motion in limine. The motion in limine is granted pursuant to CCP §2034.300: Ian Foster is excluded as an expert for Plaintiff. See discussion.

DISCUSSION

At the outset, it should be noted that Plaintiff’s brief is one court day late; it was to be filed on 3/9/18, but it was not actually filed until 3/12/18. However, the brief was served on 3/9/18, so no prejudice results from the error.

However, Plaintiff has utterly disregard of the requirements for memoranda as set forth in CRC Rule 3.1113. Plaintiff’s 39-page memorandum carries no table of contents, no table of authorities, and no summary of argument an is in flagrant violation of CRC Rule 3.1113(d) & (f).

For those reasons, the court does not consider it. CRC Rule 3.1113(g) and 3.1300(d).

However, even if the court were to consider Plaintiff’s memorandum, Plaintiff has not met its burden to prove that exclusion of the expert amounts to a terminating sanction.

CCP §2034.300 reads in relevant part as follows:

“Except as provided in Section 2034.310 and in Articles 4 (commencing with Section 2034.610) and 5 (commencing with Section 2034.710), on objection of any party who has made a complete and timely compliance with Section 2034.260, the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following:

(a) List that witness as an expert under Section 2034.260.

(b) Submit an expert witness declaration.

(c) Produce reports and writings of expert witnesses under Section 2034.270.

(d) Make that expert available for a deposition under Article 3 (commencing with Section 2034.410).”

CCP §2034.720 reads in relevant part:

“The court shall grant leave to submit tardy expert witness information only if all of the following conditions are satisfied:

(a) The court has taken into account the extent to which the opposing party has relied on the absence of a list of expert witnesses.

(b) The court has determined that any party opposing the motion will not be prejudiced in maintaining that party’s action or defense on the merits.

(c) The court has determined that the moving party did all of the following:

(1) Failed to submit the information as the result of mistake, inadvertence, surprise, or excusable neglect.

(2) Sought leave to submit the information promptly after learning of the mistake, inadvertence, surprise, or excusable neglect.

(3) Promptly thereafter served a copy of the proposed expert witness information described in Section 2034.260 on all other parties who have appeared in the action.

(d) The order is conditioned on the moving party making the expert available immediately for a deposition under Article 3 (commencing with Section 2034.410), and on any other terms as may be just, including, but not limited to, leave to any party opposing the motion to designate additional expert witnesses or to elicit additional opinions from those previously designated, a continuance of the trial for a reasonable period of time, and the awarding of costs and litigation expenses to any party opposing the motion.”

“The exclusion sanction applies only if the failure to comply with the expert witness exchange requirements was “unreasonable.” [CCP § 2034.300]. Although CCP § 2034.300 does not define “unreasonable,” the “operative inquiry” is whether the party’s conduct compromises the purposes of the discovery statutes. [Staub v. Kiley (2014) 226 CA4th 1437, 1447, 173 CR3d 104, 111]” Weil & Brown et al., Cal. Prac. Guide Civ. Proc. Before Trial (The Rutter Group 2017) ¶ 8:1719.1.

The relevant purposes of the discovery statutes are: (1) to assist in ascertaining the truth, (2) to encourage settlement by educating the parties on their respective cases, (3) to expedite and facilitate trial preparation, (4) to prevent delay, and (5) to safeguard against surprise. Staub, supra, 226 C.A.4th at 1447. “The Supreme Court has noted that the need for pretrial discovery is greater with respect to expert witnesses than ordinary fact witnesses because the opponent must prepare to cope with the expert’s specialized knowledge.” Boston v. Penny Lane Centers, Inc. (2009) 170 C.A.4th 936, 951.

“There is no statutory requirement that the objecting party give the opposing party opportunity to correct the defects before trial. But failure to do so may be ground for finding that the opposing party’s failure to comply was not “unreasonable” (¶ 8:1719.1). [Boston v. Penny Lane Ctrs., Inc. (2008) 170 CA4th 936, 954, 88 CR3d 707, 722 (citing text)]… Nor is there any statutory requirement that the objecting party have been prejudiced from the nondisclosure in order to object to the expert testimony at trial. Again, however, absent some showing of prejudice, the court may be more likely to find that the failure to comply with the expert witness disclosure requirements was not “unreasonable.”” Weil & Brown, supra, at ¶¶ 8:1712-8:1713. Likewise, where exclusion of an expert or experts would effectively create a terminating sanction, testimony should be permitted in the absence of evidence showing discovery abuse. Staub, supra, 226 C.A.4th at 1448 (“the order excluding plaintiffs’ experts from testifying at trial was in effect a terminating sanction, as it eviscerated plaintiffs’ case… there was no history of discovery abuse by plaintiffs which would warrant the imposition of a terminating sanction”).

Defendant TFA served its demand for expert witness information on 4/19/17; the simultaneous exchange called for by the discovery code was to occur on 5/9/17. (Declaration of Charles Tsai [hereinafter “Tsai Dec.”] ¶ 2). TFA served Plaintiff with its expert information on 5/8/17. (Id. ¶3) . On 7/14/17, Plaintiff identified Ian Foster (hereinafter “Foster”) as an expert witness. (Id. ¶4). On 8/5/17, TFA served Foster with a deposition subpoena; on 8/14/17, nine days later, Defendant TFA filed the instant motion. (Id. ¶¶ 5, 7). On that same date, Plaintiff provided TFA with the formal expert witness designation for Foster. (Id. ¶8). At this point in time, trial was scheduled for 9/20/17, a little over a month away. TFA was able to depose Foster on 8/31/17-9/1/17. (Id. ¶12). On the dates of the deposition and on 9/5/17, TFA was provided with various materials authored by Foster, and a study on which he intended to rely. (Id. ¶j 13-16).” (Court Order of 2/26/18).

Plaintiff’s argument, insofar as it can be extracted from the lengthy statement is that Foster’s testimony is the only chance he has to prove that he did not understate his income on tax returns. Plaintiff argues that in order to assess a fraud penalty, Defendant TFA must show by clear and convincing evidence that Plaintiff willfully evaded payment; one of they was Defendant TFA does so is by establishing the “badges of fraud,” among which are understatement of income. So, in order to prove his case, Plaintiff must show that he did not understate his income, and advance proof as to what his income actually was. Plaintiff contends he cannot do this without Foster giving evidence about the usual losses from theft of alcoholic beverages.

But as Defendant TFA points out, P has no fewer than five other avenues of proving his case: (1) Plaintiff can show that TFA erred in determining the sales tax returns were incorrect as filed; (2) Plaintiff can use his extensive percipient witness evidence of employee theft to show that Defendant TFA did not accurately account for theft in his case (and there is a potential collateral estoppel which would bar Defendant TFA from denying the theft); (3) Plaintiff has evidence that some assets were wasted by antiquated systems rather than sold to generate income; (4) Plaintiff may prove a statute of limitations bar, and impeach Defemdant TFA’s calculations; (5) Plaintiff may impeach TFA’s calculations with regard to food sales. None of these avenues requires Foster, and all appear viable.

Also, a large part of Plaintiff’s theory of the case hinges on his assertion that Defendant TFA’s predecessor agency was awash in corruption and biased against him. This theory occupies the bulk of Plaintiff’s memorandum. It is hard to see how Foster’s generic evidence regarding restaurant loss of revenue due to theft of alcohol is essential to that argument.

For the foregoing reasons, Plaintiff has failed to demonstrate that granting this motion would be akin to terminating sanctions; as such Defendant’s motion is GRANTED.

IT IS SO ORDERED:

___________________________
Frederick C. Shaller, Judge