Case Number: BC619516 Hearing Date: February 08, 2018 Dept: 46

Case Number: BC619516
PEDRO MIGUEL MONTESINOS VS SEIDNER-MILLER INC ET AL

Filing Date: 07/05/2016
Case Type: Other Commercial/Business Tort (General Jurisdiction)
Status: Pending

2/8/2018
Final Status Conference

This matter is scheduled as a bench trial to commence on 2/21/2018 at 9:30 a.m.

The witness list includes a time estimate of a total of 28 hours of testimony, so the court will estimate this as a 5-day trial.

Plaintiff’s Motion in Limine No. 1 to Exclude Testimony of Language of Negotiations and Execution of Acknowledgment is DENIED. Whether and to what extent the negotiations in the case were in English or Spanish is the central issue in the case based upon Civil Code §1632, so exclusion of evidence essential to the case would amount to a summary disposition of the case. Relative to the acknowledgement of negotiations in the English language, Plaintiff can verify his signature even if there are no witnesses to the execution.

Defendant’s Motion in Limine No. 1 to Exclude witnesses who have not yet testified from the courtroom is GRANTED.

Defendant’s Motion in Limine No. 2 to exclude evidence not disclosed in discovery is DENIED. There is no specific evidence cited that Defendant seeks to exclude. If a party seeks to provide surprise evidence at the time of trial that was wilfully withheld during discovery, the court will conduct a hearing on the subject at the time of the proffer of the evidence.

Defendant’s Motion in Limine No. 3 For Permission to Use Demonstrative Evidence before admission during opening statement is GRANTED. This is a bench trial, so there is no need to filter evidence before it is shown to the court.

Defendant’s Motion in Limine No. 4 To Bifurcate Punitive Damages from the First Phase of Trial is GRANTED. Should the requisite findings of liability for punitive damages be found by the court, then a second phase of trial will be scheduled.

Defendant’s Motion in Limine No. 5 to Exclude Plaintiff’s Expert Witnesses Tarter and Cerrito due to the allegedly inadequate description of the nature and scope of their anticipated testimony is DENIED. CCP §2034.210(b) and 2034.260(c) only require an expert declaration to include a statement of the “general substance of the witness’s expected testimony.” The original statement of the substance of the anticipated testimony of Tarter and Cerrito was sufficient and the additional information provided in the later amended declaration was not necessary to meet the code requirements. See Ochoa v. Dorado (2014) 228 cal. App. 4th 120, 139.

Defendant’s Motion in Limine No. 6 to Exclude Any Evidence Code §1101 Conduct of Seidner-Miller, Inc is DENIED. Plaintiff may offer evidence of conduct that amounts to custom and habit as it is relevant to the contentions in the case. Such evidence is admissible pursuant to E.C. §1105; See Hughs v. Pacific Wharf (1922) 188 Cal. 210.

Defendant’s Motion in Limine No. 7 is GRANTED pursuant to CCP §2034.300. Disclosure was due on 1/2/2018 and Pollock was not disclosed until 1/17/2018, 15 days late.

Plaintiff’s limited opposition does not constitute a motion to augment or amend pursuant to CCP §2034.610 and there is no statement of facts in the opposition that would qualify for relief under CCP §2034.610.

However, the use of expert Pollock is unnecessary to the Plaintiff who may authenticate the recordings in issue himself pursuant to E.C. §1413 provided that Plaintiff complies with CRC 2.1040(b)(1) and provides a live translation of the recording pursuant to E.C. 753(a) unless the parties can stipulate.

A party offering into evidence a sound or sound-and-video electronic recording must provide to the court and to opposing parties a transcript of the electronic recording AND must provide a duplicate of the electronic recording. CRC 2.1040(b(1).

If the recording is in Spanish, then to be admissible, Plaintiff must comply with Evidence Code §753(a). [Evidence Code §753(a) requires live testimony from an interpreter for the purpose of deciphering or understanding the words on the recording.] While §753(a) appears to relate to writings only, recordings are “writings” as defined by E.C. §250. O’Laskey v. Sortino (1990) 224 Cal. App. 3d 241.