Preview
1 Michael C. Parme (Bar No. 261719)
mparme@hbblaw.com
2 Stevie B. Baris (Bar No. 287708)
sbaris@hbblaw.com
3 HAIGHT BROWN & BONESTEEL LLP
edocs@hbblaw.com
4 402 West Broadway, Suite 1850
San Diego, CA 92101
5 Telephone: 619.595.5583
Facsimile: 619.595.7873
6
7 Attorneys for Defendant
JACOB JOHN SONGER dba
8 INFERNO GUARD
9
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 COUNTY OF NAPA
12
13 JAMES RAYMOND, Case No. 21CV001225
an individual,
14 DEFENDANT’S MOTION IN LIMINE
Plaintiff, NO. 3 RE: EXPERT TESTIMONY NOT
15 DISCLOSED IN DEPOSITIONS OR
v. EXPERT DISCLOSURES
16
JACOB JOHN SONGER, an individual, dba Judge: Hon. Cynthia P. Smith
17 INFERNO GUARD and DOES 1 through 50, Date: August 24, 2023
inclusive, Time: 8:30 a.m.
18 Dept.: A
Defendants.
19 Action Filed: August 24, 2021
Trial Date: August 28, 2023
20
21
22 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
23 PLEASE TAKE NOTICE that defendant Jacob John Songer dba Inferno Guard
24 (“defendant”) will, and hereby does, move this Court in limine for an Order excluding all opinions
25 and testimony of plaintiff James Raymond’s (“Raymond” or “plaintiff”) expert witnesses that are
26 outside the scope of their designated areas of expertise and/or were not stated in their respective
27 depositions.
28 \\\
1
NW08-0000074 DEFENDANT’S MOTION IN LIMINE NO. 3 RE: EXPERT TESTIMONY NOT
14657728.1 DISCLOSED IN DEPOSITIONS OR EXPERT DISCLOSURES
1 This Motion is made pursuant to Code of Civil Procedure section 2034.260 and Evidence
2 Code section 352 on the grounds that any presentation by plaintiff’s experts of additional opinions,
3 facts, materials, or research, other than those within the scope of their designated expertise and
4 specifically referred to and set forth in their depositions, would unduly prejudice defendant. This
5 Motion is also supported by the policies of avoiding a surprise at trial and encouraging the free
6 exchange of information, which are the foundation of the Discovery Act.
7 This Motion is supported by the Memorandum of Points and Authorities, the Declaration
8 of Stevie B. Baris and the exhibit thereto, the pleadings and records on file herein and such oral
9 and documentary evidence as may be presented at the hearing of this Motion.
10
11 DATED: August 10, 2023 HAIGHT BROWN & BONESTEEL LLP
12
13 By:
14 Michael Parme
Stevie B. Baris
15 Attorneys for Defendant
JACOB JOHN SONGER dba INFERNO GUARD
16
17
18
19
20
21
22
23
24
25
26
27
28
2
NW08-0000074 DEFENDANT’S MOTION IN LIMINE NO. 3 RE: EXPERT TESTIMONY NOT
14657728.1 DISCLOSED IN DEPOSITIONS OR EXPERT DISCLOSURES
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 1.
3 INTRODUCTION
4 By this motion, defendant seeks to limit the trial testimony of plaintiff’s expert(s) to only
5 the opinions and conclusions expressed at their respective depositions to avoid unfair surprise. All
6 of plaintiff’s designated experts will be deposed by the time the instant Motion is heard. It is the
7 practice of defense counsel to question all experts regarding all material that they had reviewed
8 and used for the basis for their respective opinions. It is further the practice of defense counsel to
9 ask all experts at deposition for the full extent of each opinion they intended to offer at trial. The
10 present Motion is intended to protect the discovery process by limiting plaintiff’s experts to those
11 opinions and/or conclusions.
12 On or about July 5, 2023, Plaintiff served his Designation of Expert Witnesses designating
13 one (1) expert witness to testify at trial: Steve Bickford (“Mr. Bickford”). (See plaintiff’s
14 Designation of Expert Witnesses, attached hereto as “Exhibit A.”) Plaintiff’s Designation also
15 included a declaration by his counsel providing narrative statements of the general substance of
16 Mr. Bickford’s anticipated testimony. To date, plaintiff has not served any Supplemental Expert
17 Designation or otherwise designated any additional expert witnesses; and plaintiff’s sole
18 designated expert has been deposed.
19 Pursuant to Code of Civil Procedure section 2034.260, and Evidence Code section 352,
20 Mr. Bickford, plaintiff’s sole expert witness, must be limited to testifying at trial about only those
21 opinions or conclusions within the scope of his designated expertise and specifically referred to
22 and set forth in his deposition.
23 2.
24 CODE OF CIVIL PROCEDURE SECTION 2034 REQUIRES PLAINTIFF TO DISCLOSE
25 THE SCOPE OF HIS EXPERTS’ TESTIMONY AND PRODUCE THOSE EXPERTS FOR
26 A MEANINGFUL DEPOSITION
27 Code of Civil Procedure section 2034.210(b) requires designations of retained expert
28 witnesses to “include or be accompanied by an expert witness declaration under Section
3
NW08-0000074 DEFENDANT’S MOTION IN LIMINE NO. 3 RE: EXPERT TESTIMONY NOT
14657728.1 DISCLOSED IN DEPOSITIONS OR EXPERT DISCLOSURES
1 2034.260.” Code of Civil Procedure section 2034.260(b) provides that the expert witness
2 declaration shall contain “a brief narrative statement of the general substance of the testimony that
3 the expert is expected to give” and “a representation that the expert will be sufficiently familiar
4 with the pending action to submit to a meaningful oral deposition concerning the specific
5 testimony, including an opinion and its basis, that the expert is expected to give at trial.”
6 California courts have consistently held that Section 2034.260 requires an expert to
7 disclose not only his opinions during deposition, but the basis for the opinions reached. The
8 purpose of this requirement is to educate counsel for all parties on those issues that will be argued
9 at trial. When an appropriate demand is made to exchange expert witness information and an
10 expert is offered to be deposed, the substance of the facts and opinion which the expert will testify
11 to at trial must be disclosed if the expert is so asked. If an expert witness fails to disclose the facts
12 and things on which his testimony will be based, that witness will be precluded from asserting
13 additional facts or additional opinions at trial. (Code of Civil Procedure § 2034.300.) This was the
14 holding in Kennemur v. California (1982) 133 Cal.App.3d 907, where the court stated:
15 The legislature has singled out the pretrial discovery of expert
opinions for special treatment. When appropriate demand is made
16 for exchange of expert witness lists, the party is required to disclose
not only the name, address and qualifications of the witness, but the
17 general substance of the testimony the witness is expected to give at
trial. (§ 2037.3) In our view, this means the party must disclose
18 either in this witness exchange list or at their expert’s deposition, if
the expert is asked, the substance of the facts and the opinions which
19 the expert will testify to at trial. Only by such a disclosure will the
opposing party have reasonable notice of the specific areas of
20 investigation by the expert, the opinions he has reached, and the
reasons supporting the opinions, to the end the opposing party can
21 prepare for cross-examination and rebuttal of the expert’s testimony.
22 (Id. at 919.) Thus, the Kennemur court ruled that the trial court had properly excluded testimony
23 on causation issues by an expert at trial after that expert had, in his pre-trial deposition, testified
24 that he was not going to express an opinion with regard to causation. (Id. at 907.)
25 The importance of this Motion is emphasized when one considers the purpose for which it
26 is sought. The right to depose a party’s expert regarding the basis for individual testimony is a
27 well-established feature of California law and a critical part of any trial or arbitration. (See
28 Regents of the University of California v. Morris (1986) 266 Cal.App.2d 616, 631 (“The
4
NW08-0000074 DEFENDANT’S MOTION IN LIMINE NO. 3 RE: EXPERT TESTIMONY NOT
14657728.1 DISCLOSED IN DEPOSITIONS OR EXPERT DISCLOSURES
1 appraisers’ opinions and their factual and theoretical foundation are particularly within each
2 appraiser’s knowledge and, to a degree, that of the party who employed him. The opposing party
3 can obtain this information in advance of trial only by discovery.”).)
4 3.
5 EVIDENCE CODE SECTION 352 PRECLUDES PLAINTIFF FROM SURPRISING
6 DEFENDANT WITH ANY EXPERT OPINIONS AND/OR TESTIMONY OUTSIDE THE
7 SCOPE OF EXPERT DISCLOSURES AND/OR NOT SPECIFICALLY TESTIFIED TO IN
8 DEPOSITIONS
9 The Court in its discretion may exclude evidence if its probative value is substantially
10 outweighed by the probability that its admission will (a) necessitate undue consumption of time or
11 (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.
12 (Evid. Code Section 352; see also People v. Cardenas (1982) 31 Cal.3d 897, 904.) When a
13 Section 352 objection is raised, the trial court must weigh the admission of the challenged
14 evidence carefully in terms of whether the probative value is greater than the potentially
15 prejudicial effect of its admission. (People v. Cardenas, supra, 31 Cal.3d at 904.) If the
16 prejudicial effect outweighs the probative value, the trial court should exclude the evidence. (Id.)
17 California cases are replete with comments and observations confirming that, among the
18 purposes and intents of the modern discovery statutes, is the avoidance of unfair surprise. As the
19 court held in Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355:
20 The new system, as was the federal system [citations omitted] was
intended to…safe-guard against surprise…The [L]egislature intended
21 to take the ‘game’ element out of trial preparation while retaining the
adverse nature of the trial itself. One of the principal purposes of
22 discovery was to do away ‘with the sporting theory of litigation-
23 namely, surprise at the trial.”
24 (Id. at 376.)
25 The full and honest disclosure of facts and evidence prior to trial is the hallmark of modern
26 civil litigation in this State. In response to properly and diligently served discovery, California
27 litigants are compelled to reveal the nature and extent of their contentions, the facts supporting
28 those contentions and the facts underlying a party’s affirmative defenses. (Burke v. Superior
5
NW08-0000074 DEFENDANT’S MOTION IN LIMINE NO. 3 RE: EXPERT TESTIMONY NOT
14657728.1 DISCLOSED IN DEPOSITIONS OR EXPERT DISCLOSURES
1 Court (1969) 71 Cal.2d 276, 281; Singer v. Superior Court (1960) 54 Cal.2d 318, 323.) The case
2 law requires that expediency and fairness govern the discovery process in California. For
3 example, in Burke v. Superior Court, supra, 71 Cal.2d at 280-81, the court held that:
4 The discovery laws in California are defined to expedite the trial of
civil matters by (1) enabling counsel to quickly and thoroughly
5 obtain evidence and evidentiary leads, and thus to more quickly and
efficiently prepare for trial, and (2) enabling counsel to ‘see at rest’
6 issues that are not genuinely disputed.
7
As a result, the Court of Appeal has upheld the right of trial courts to exclude evidence because of
8
a failure to reveal the information in discovery. (Campaign v. Safeway Stores (1972) 29
9
Cal.App.3d 362, 366 [in response to a demand for production of documents]; Deeter v. Angus
10
(1986) 179 Cal.App.3d 241, 254 [in an answer to an interrogatory]; Thoren v. Johnston and
11
Washer (1972) 20 Cal.App.3d 270, 273-76.) A trial court also has the power to exclude
12
contentions if they are not disclosed in discovery. (See Universal Underwriter, Ins. Co. v.
13
Superior Court (1967) 250 Cal.App.2d 722, 727-30.)
14
In the instant matter, plaintiff’s sole expert witness, Mr. Bickford, must be limited to
15
testifying at trial about only those opinions or conclusions within the scope of his designated
16
expertise and specifically referred to and set forth in his deposition. To permit plaintiff’s expert to
17
testify as to other opinions at trial would run contrary to the purpose of the discovery code, and the
18
preceding California case law. It would also undoubtedly result in undue and irreparable prejudice
19
to defendant because defendant has essentially be precluded from evaluating the veracity of any
20
other opinions plaintiff’s expert may espouse at the time of trial.
21
Therefore, to avoid undue and irreparable prejudice to defendant, this Court should exclude
22
all opinions and testimony of plaintiff’s sole expert witness, Mr. Bickford, that are outside the
23
scope of his designated areas of expertise and/or that were not stated in his deposition.
24
\\\
25
\\\
26
\\\
27
\\\
28
\\\
6
NW08-0000074 DEFENDANT’S MOTION IN LIMINE NO. 3 RE: EXPERT TESTIMONY NOT
14657728.1 DISCLOSED IN DEPOSITIONS OR EXPERT DISCLOSURES
1 4.
2 CONCLUSION
3 For the reasons set forth above, defendant respectfully requests this Court issue an Order
4 limiting the trial testimony of plaintiff’s sole expert, Mr. Bickford, to only the opinions and
5 conclusions expressed at Mr. Bickford’s deposition.
6
7 DATED: August 10, 2023 HAIGHT BROWN & BONESTEEL LLP
8
9 By:
10 Michael Parme
Stevie B. Baris
11 Attorneys for Defendant
JACOB JOHN SONGER dba INFERNO GUARD
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7
NW08-0000074 DEFENDANT’S MOTION IN LIMINE NO. 3 RE: EXPERT TESTIMONY NOT
14657728.1 DISCLOSED IN DEPOSITIONS OR EXPERT DISCLOSURES
1 DECLARATION OF STEVIE B. BARIS
2 I, Stevie B. Baris, declare as follows:
3 1. I am an attorney with the law firm of Haight Brown & Bonesteel LLP, counsel for
4 Defendant Jacob John Songer dba Inferno Guard (“defendant”) in the above-captioned action. I
5 am a member in good standing of the State Bar of California. I have personal knowledge of the
6 facts set forth in this declaration and, if called as a witness, could and would testify competently to
7 such facts under oath.
8 2. I submit this declaration in support of defendant’s Motion in Limine No. 3. On or
9 about July 5, 2023, plaintiff served his Designation of Expert Witnesses in this action. A true and
10 correct of plaintiff’s Designation of Expert Witnesses is attached hereto as “Exhibit A.”
11 3. To date, plaintiff has not served any Supplemental Expert Designation or otherwise
12 designated any additional expert witnesses.
13 I declare under penalty of perjury under the laws of the State of California that the
14 foregoing is true and correct. Executed on August 10, 2023, at San Francisco, California.
15
16 Stevie B. Baris
17
18
19
20
21
22
23
24
25
26
27
28
8
NW08-0000074 DEFENDANT’S MOTION IN LIMINE NO. 3 RE: EXPERT TESTIMONY NOT
14657728.1 DISCLOSED IN DEPOSITIONS OR EXPERT DISCLOSURES
EXHIBIT A
State Contractor License #828469 ISA Eertified Arhnrist #WE-UHZA
Assessment parcel number 038-602-024-000
Date of report 02-28-202 l
Date of initial inspection 01-27-2021
Date of damage 01-21-2021
Scope of Service
Evaluate the damage, determine value, and estimate replacement cost to nine trees cut down
without permission on property. Single trunk trees with a diameter of 4 inches or less were not
included in this report.
Trees are listed by -
Species
Diameter
Height
Square inches at the diameter
Value at $25 dollars per square inch using Society of Consulting Arborist Standards
Photo evidence is included with the trees numbered on the stump for identification
Other photos show the cut down trees laying on the ground
The trees are on the Southeast, and West side of the house
All of the trees are close to the house so they are important to die property value
Expert Tree Ears 5Wnce 1972
State Enntractnr License #828489 ISA Eemfied Arhnrist #wE~ul|2A
Expert Tree Care Since 1972
State Euntrantnr License #828483 ISA Eemfied Arhurist #WE-UIIZA
Expert Tree Eare Since 1972
Steve Bickford
pn. BDX 248
Deer Park. EA94578
(787) 983-3455
State Enntrantur License #828489 ISA Certified Arhnrist #WE-HIIZA
Expert Tree Care Since 1972
State Euntractur License #826469 ISA Eartiiied Arburist #WE-DIIZA
Expert Tree Ears Since 1372
State Enntractur License #825489 ISA Egptjligd Arhnrist #WE-DIIZA
Expert Tree Bare Since !H72
Steve Bickford
P.l]. HEX 248
[leer Park, EA94578
(707) 9B3-3455
State Enntrantnr License #828489 ISA Certified Arburist #WE-BIIZA
Tree six-
Quercus agrifolia
(Coastal live oak)
12-inch diameter
? Tall
260 sq inches
Value $6,500
Expert Tree Ears Since 1972
Steve Bickford
P.[]. BOX 246
Deer Park. EA 94578
(vm) 963-3455
State Euntrantnr Linense #825469 ISA Certified Arburist #WE-UIIQA
Tree seven-
Quercus agrifolia
(Coastal live oak)
Two tmnks
14 and 10-inch diameter
7 Tall
278 sq inches
Value $6,950
Expert Tree Bare Since 1972
Steve Bickford
P.0. Box 248
Deer Park, EA94578
(707)953-3455
State Euntrantur license #828489 ISA Eertified Aphgrigt #W E-DHZA
Tree eight-
Umbellularia califomica
(Bay Tree)
Seven trunks
Four to 10-imeh diameter
7 Tall
242 square inches
Value $6,050
Exper"t Tree Ears Since 1972
Steve Bickford
PU. BDx 248
[leer Park. EA94576
(vw)953-3455
State Euntractnr License #826459 ISA Certified Arbnrisi #WE-UIIZA
Tree nine-
Umbellularia californica
(Bay Tree)
Three trunks
Four to 10-inch diameter
? Tall
242 square inches
Value $6,050
Expert Tree Care Since 1972
Steve Bickford
pu. BDX 248
Deer Park. CA34578
(vm)983-3455
State Enntrantnr License #828453 ISA Eertified Arburist #WE-0112A
Total Tree Value: $69,500 @ $25 per sq inch
The redwoods are still on site
The other trees were removed from the site so their height is unknown
The redwoods were cut into short disks, a supposition is the removal crew were intending to sell
the disks for landscaping art.
Courts have awarded triple damage for criminal trespass
Redwood disks
Remaining debris on-site
Expert Tree [Zara Since 1972
Steve Bickford
P.D. BDX 248
Deer Park EA94575
(707) HB3-3455
State Cuntrantur License #828489 ISA Eertilied Arhurist #WE-[IIIZA
Tree Health
Fire damage to the trees when the house bumed during the glass fire.
The trees were cut down before their condition was evaluated by a Certified Arborist.
Cutting them down was premature.
It doesn't kill a tree to have a fire near it, as evidenced by the redwoods, which have viable fluids
in the cambium between the bark and wood. Even the tops of the trees are still trying to grow.
I have included photo evidence of the cambium fluids on the ends of the cut sections. The fluid
looks like a sticky red gum forming a ring under the circumference of the bark.
xx,
Steve Bickford
PU. BOX 246
l]eer Park EA94578
(707)383-3455
State Contractor License #828459 ISA Eertifisd Arhu"ist #W E-DHZA
Synopsis
The trees were cut down before they had enough time to show new growth. There is a strong
possibility that these trees were removed with no regard to their current health.
The tree value is for the tree itself
There is an added cost for removing the tree debris and the stumps.
Mitiiation
Moving acceptable sized replacement trees would include the following cost:
Purchase cost
Transportation
Site preparation
Installation
Monitoring after planting
These costs would be estimated by a specimen tree growing company
The average mitigation costs would be estimated at twenty thousand or more per tree
Submitted by
Steve Bickford
Certified Arborist
Expert Tree Dare 'Since 1972
1 PROOF OF SERVICE
James Raymond v. Jacob John Songer
2 Case No. 21CV001225
3 STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO
4 At the time of service, I was over 18 years of age and not a party to this action. I
am employed in the County of San Francisco, State of California. My business address is
5 505 Sansome Street, Suite 1701, San Francisco, CA 94111.
6 On August 10, 2023, I served true copies of the following document(s) described
as:
7
DEFENDANT’S MOTION IN LIMINE NO. 3 RE: EXPERT TESTIMONY
8 NOT DISCLOSED IN DEPOSITIONS OR EXPERT DISCLOSURES
9 on the interested parties in this action as follows:
10 Michael W. Rupprecht, Esq. T: 707-252-9000 / F: 707-252-0729
GVM LAW, LLP MRupprecht@gvmlaw.com
11 1000 Main Street, Suite 300 Cathy@gvmlaw.com
Napa, CA 94559
12 Attorneys for Plaintiff, JAMES
RAYMOND
13
BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the
14 document(s) to be sent from e-mail address pjohnson@hbblaw.com to the persons at the
e-mail addresses listed in the Service List. I did not receive, within a reasonable time after
15 the transmission, any electronic message or other indication that the transmission was
unsuccessful.
16
I declare under penalty of perjury under the laws of the State of California that the
17 foregoing is true and correct.
18 Executed on August 10, 2023, at San Francisco, California.
19
20
Paula M. Johnson
21
22
23
24
25
26
27
28
NW08-0000074 DEFENDANT’S MOTION IN LIMINE NO. 3 RE: EXPERT TESTIMONY NOT
14657728.1 DISCLOSED IN DEPOSITIONS OR EXPERT DISCLOSURES
Preview
1 Michael C. Parme (Bar No. 261719) mparme@hbblaw.com 2 Stevie B. Baris (Bar No. 287708) sbaris@hbblaw.com 3 HAIGHT BROWN & BONESTEEL LLP edocs@hbblaw.com 4 402 West Broadway, Suite 1850 San Diego, CA 92101 5 Telephone: 619.595.5583 Facsimile: 619.595.7873 6 7 Attorneys for Defendant JACOB JOHN SONGER dba 8 INFERNO GUARD 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF NAPA 12 13 JAMES RAYMOND, Case No. 21CV001225 an individual, 14 DEFENDANT’S MOTION IN LIMINE Plaintiff, NO. 3 RE: EXPERT TESTIMONY NOT 15 DISCLOSED IN DEPOSITIONS OR v. EXPERT DISCLOSURES 16 JACOB JOHN SONGER, an individual, dba Judge: Hon. Cynthia P. Smith 17 INFERNO GUARD and DOES 1 through 50, Date: August 24, 2023 inclusive, Time: 8:30 a.m. 18 Dept.: A Defendants. 19 Action Filed: August 24, 2021 Trial Date: August 28, 2023 20 21 22 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 23 PLEASE TAKE NOTICE that defendant Jacob John Songer dba Inferno Guard 24 (“defendant”) will, and hereby does, move this Court in limine for an Order excluding all opinions 25 and testimony of plaintiff James Raymond’s (“Raymond” or “plaintiff”) expert witnesses that are 26 outside the scope of their designated areas of expertise and/or were not stated in their respective 27 depositions. 28 \\\ 1 NW08-0000074 DEFENDANT’S MOTION IN LIMINE NO. 3 RE: EXPERT TESTIMONY NOT 14657728.1 DISCLOSED IN DEPOSITIONS OR EXPERT DISCLOSURES 1 This Motion is made pursuant to Code of Civil Procedure section 2034.260 and Evidence 2 Code section 352 on the grounds that any presentation by plaintiff’s experts of additional opinions, 3 facts, materials, or research, other than those within the scope of their designated expertise and 4 specifically referred to and set forth in their depositions, would unduly prejudice defendant. This 5 Motion is also supported by the policies of avoiding a surprise at trial and encouraging the free 6 exchange of information, which are the foundation of the Discovery Act. 7 This Motion is supported by the Memorandum of Points and Authorities, the Declaration 8 of Stevie B. Baris and the exhibit thereto, the pleadings and records on file herein and such oral 9 and documentary evidence as may be presented at the hearing of this Motion. 10 11 DATED: August 10, 2023 HAIGHT BROWN & BONESTEEL LLP 12 13 By: 14 Michael Parme Stevie B. Baris 15 Attorneys for Defendant JACOB JOHN SONGER dba INFERNO GUARD 16 17 18 19 20 21 22 23 24 25 26 27 28 2 NW08-0000074 DEFENDANT’S MOTION IN LIMINE NO. 3 RE: EXPERT TESTIMONY NOT 14657728.1 DISCLOSED IN DEPOSITIONS OR EXPERT DISCLOSURES 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 1. 3 INTRODUCTION 4 By this motion, defendant seeks to limit the trial testimony of plaintiff’s expert(s) to only 5 the opinions and conclusions expressed at their respective depositions to avoid unfair surprise. All 6 of plaintiff’s designated experts will be deposed by the time the instant Motion is heard. It is the 7 practice of defense counsel to question all experts regarding all material that they had reviewed 8 and used for the basis for their respective opinions. It is further the practice of defense counsel to 9 ask all experts at deposition for the full extent of each opinion they intended to offer at trial. The 10 present Motion is intended to protect the discovery process by limiting plaintiff’s experts to those 11 opinions and/or conclusions. 12 On or about July 5, 2023, Plaintiff served his Designation of Expert Witnesses designating 13 one (1) expert witness to testify at trial: Steve Bickford (“Mr. Bickford”). (See plaintiff’s 14 Designation of Expert Witnesses, attached hereto as “Exhibit A.”) Plaintiff’s Designation also 15 included a declaration by his counsel providing narrative statements of the general substance of 16 Mr. Bickford’s anticipated testimony. To date, plaintiff has not served any Supplemental Expert 17 Designation or otherwise designated any additional expert witnesses; and plaintiff’s sole 18 designated expert has been deposed. 19 Pursuant to Code of Civil Procedure section 2034.260, and Evidence Code section 352, 20 Mr. Bickford, plaintiff’s sole expert witness, must be limited to testifying at trial about only those 21 opinions or conclusions within the scope of his designated expertise and specifically referred to 22 and set forth in his deposition. 23 2. 24 CODE OF CIVIL PROCEDURE SECTION 2034 REQUIRES PLAINTIFF TO DISCLOSE 25 THE SCOPE OF HIS EXPERTS’ TESTIMONY AND PRODUCE THOSE EXPERTS FOR 26 A MEANINGFUL DEPOSITION 27 Code of Civil Procedure section 2034.210(b) requires designations of retained expert 28 witnesses to “include or be accompanied by an expert witness declaration under Section 3 NW08-0000074 DEFENDANT’S MOTION IN LIMINE NO. 3 RE: EXPERT TESTIMONY NOT 14657728.1 DISCLOSED IN DEPOSITIONS OR EXPERT DISCLOSURES 1 2034.260.” Code of Civil Procedure section 2034.260(b) provides that the expert witness 2 declaration shall contain “a brief narrative statement of the general substance of the testimony that 3 the expert is expected to give” and “a representation that the expert will be sufficiently familiar 4 with the pending action to submit to a meaningful oral deposition concerning the specific 5 testimony, including an opinion and its basis, that the expert is expected to give at trial.” 6 California courts have consistently held that Section 2034.260 requires an expert to 7 disclose not only his opinions during deposition, but the basis for the opinions reached. The 8 purpose of this requirement is to educate counsel for all parties on those issues that will be argued 9 at trial. When an appropriate demand is made to exchange expert witness information and an 10 expert is offered to be deposed, the substance of the facts and opinion which the expert will testify 11 to at trial must be disclosed if the expert is so asked. If an expert witness fails to disclose the facts 12 and things on which his testimony will be based, that witness will be precluded from asserting 13 additional facts or additional opinions at trial. (Code of Civil Procedure § 2034.300.) This was the 14 holding in Kennemur v. California (1982) 133 Cal.App.3d 907, where the court stated: 15 The legislature has singled out the pretrial discovery of expert opinions for special treatment. When appropriate demand is made 16 for exchange of expert witness lists, the party is required to disclose not only the name, address and qualifications of the witness, but the 17 general substance of the testimony the witness is expected to give at trial. (§ 2037.3) In our view, this means the party must disclose 18 either in this witness exchange list or at their expert’s deposition, if the expert is asked, the substance of the facts and the opinions which 19 the expert will testify to at trial. Only by such a disclosure will the opposing party have reasonable notice of the specific areas of 20 investigation by the expert, the opinions he has reached, and the reasons supporting the opinions, to the end the opposing party can 21 prepare for cross-examination and rebuttal of the expert’s testimony. 22 (Id. at 919.) Thus, the Kennemur court ruled that the trial court had properly excluded testimony 23 on causation issues by an expert at trial after that expert had, in his pre-trial deposition, testified 24 that he was not going to express an opinion with regard to causation. (Id. at 907.) 25 The importance of this Motion is emphasized when one considers the purpose for which it 26 is sought. The right to depose a party’s expert regarding the basis for individual testimony is a 27 well-established feature of California law and a critical part of any trial or arbitration. (See 28 Regents of the University of California v. Morris (1986) 266 Cal.App.2d 616, 631 (“The 4 NW08-0000074 DEFENDANT’S MOTION IN LIMINE NO. 3 RE: EXPERT TESTIMONY NOT 14657728.1 DISCLOSED IN DEPOSITIONS OR EXPERT DISCLOSURES 1 appraisers’ opinions and their factual and theoretical foundation are particularly within each 2 appraiser’s knowledge and, to a degree, that of the party who employed him. The opposing party 3 can obtain this information in advance of trial only by discovery.”).) 4 3. 5 EVIDENCE CODE SECTION 352 PRECLUDES PLAINTIFF FROM SURPRISING 6 DEFENDANT WITH ANY EXPERT OPINIONS AND/OR TESTIMONY OUTSIDE THE 7 SCOPE OF EXPERT DISCLOSURES AND/OR NOT SPECIFICALLY TESTIFIED TO IN 8 DEPOSITIONS 9 The Court in its discretion may exclude evidence if its probative value is substantially 10 outweighed by the probability that its admission will (a) necessitate undue consumption of time or 11 (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. 12 (Evid. Code Section 352; see also People v. Cardenas (1982) 31 Cal.3d 897, 904.) When a 13 Section 352 objection is raised, the trial court must weigh the admission of the challenged 14 evidence carefully in terms of whether the probative value is greater than the potentially 15 prejudicial effect of its admission. (People v. Cardenas, supra, 31 Cal.3d at 904.) If the 16 prejudicial effect outweighs the probative value, the trial court should exclude the evidence. (Id.) 17 California cases are replete with comments and observations confirming that, among the 18 purposes and intents of the modern discovery statutes, is the avoidance of unfair surprise. As the 19 court held in Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355: 20 The new system, as was the federal system [citations omitted] was intended to…safe-guard against surprise…The [L]egislature intended 21 to take the ‘game’ element out of trial preparation while retaining the adverse nature of the trial itself. One of the principal purposes of 22 discovery was to do away ‘with the sporting theory of litigation- 23 namely, surprise at the trial.” 24 (Id. at 376.) 25 The full and honest disclosure of facts and evidence prior to trial is the hallmark of modern 26 civil litigation in this State. In response to properly and diligently served discovery, California 27 litigants are compelled to reveal the nature and extent of their contentions, the facts supporting 28 those contentions and the facts underlying a party’s affirmative defenses. (Burke v. Superior 5 NW08-0000074 DEFENDANT’S MOTION IN LIMINE NO. 3 RE: EXPERT TESTIMONY NOT 14657728.1 DISCLOSED IN DEPOSITIONS OR EXPERT DISCLOSURES 1 Court (1969) 71 Cal.2d 276, 281; Singer v. Superior Court (1960) 54 Cal.2d 318, 323.) The case 2 law requires that expediency and fairness govern the discovery process in California. For 3 example, in Burke v. Superior Court, supra, 71 Cal.2d at 280-81, the court held that: 4 The discovery laws in California are defined to expedite the trial of civil matters by (1) enabling counsel to quickly and thoroughly 5 obtain evidence and evidentiary leads, and thus to more quickly and efficiently prepare for trial, and (2) enabling counsel to ‘see at rest’ 6 issues that are not genuinely disputed. 7 As a result, the Court of Appeal has upheld the right of trial courts to exclude evidence because of 8 a failure to reveal the information in discovery. (Campaign v. Safeway Stores (1972) 29 9 Cal.App.3d 362, 366 [in response to a demand for production of documents]; Deeter v. Angus 10 (1986) 179 Cal.App.3d 241, 254 [in an answer to an interrogatory]; Thoren v. Johnston and 11 Washer (1972) 20 Cal.App.3d 270, 273-76.) A trial court also has the power to exclude 12 contentions if they are not disclosed in discovery. (See Universal Underwriter, Ins. Co. v. 13 Superior Court (1967) 250 Cal.App.2d 722, 727-30.) 14 In the instant matter, plaintiff’s sole expert witness, Mr. Bickford, must be limited to 15 testifying at trial about only those opinions or conclusions within the scope of his designated 16 expertise and specifically referred to and set forth in his deposition. To permit plaintiff’s expert to 17 testify as to other opinions at trial would run contrary to the purpose of the discovery code, and the 18 preceding California case law. It would also undoubtedly result in undue and irreparable prejudice 19 to defendant because defendant has essentially be precluded from evaluating the veracity of any 20 other opinions plaintiff’s expert may espouse at the time of trial. 21 Therefore, to avoid undue and irreparable prejudice to defendant, this Court should exclude 22 all opinions and testimony of plaintiff’s sole expert witness, Mr. Bickford, that are outside the 23 scope of his designated areas of expertise and/or that were not stated in his deposition. 24 \\\ 25 \\\ 26 \\\ 27 \\\ 28 \\\ 6 NW08-0000074 DEFENDANT’S MOTION IN LIMINE NO. 3 RE: EXPERT TESTIMONY NOT 14657728.1 DISCLOSED IN DEPOSITIONS OR EXPERT DISCLOSURES 1 4. 2 CONCLUSION 3 For the reasons set forth above, defendant respectfully requests this Court issue an Order 4 limiting the trial testimony of plaintiff’s sole expert, Mr. Bickford, to only the opinions and 5 conclusions expressed at Mr. Bickford’s deposition. 6 7 DATED: August 10, 2023 HAIGHT BROWN & BONESTEEL LLP 8 9 By: 10 Michael Parme Stevie B. Baris 11 Attorneys for Defendant JACOB JOHN SONGER dba INFERNO GUARD 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 NW08-0000074 DEFENDANT’S MOTION IN LIMINE NO. 3 RE: EXPERT TESTIMONY NOT 14657728.1 DISCLOSED IN DEPOSITIONS OR EXPERT DISCLOSURES 1 DECLARATION OF STEVIE B. BARIS 2 I, Stevie B. Baris, declare as follows: 3 1. I am an attorney with the law firm of Haight Brown & Bonesteel LLP, counsel for 4 Defendant Jacob John Songer dba Inferno Guard (“defendant”) in the above-captioned action. I 5 am a member in good standing of the State Bar of California. I have personal knowledge of the 6 facts set forth in this declaration and, if called as a witness, could and would testify competently to 7 such facts under oath. 8 2. I submit this declaration in support of defendant’s Motion in Limine No. 3. On or 9 about July 5, 2023, plaintiff served his Designation of Expert Witnesses in this action. A true and 10 correct of plaintiff’s Designation of Expert Witnesses is attached hereto as “Exhibit A.” 11 3. To date, plaintiff has not served any Supplemental Expert Designation or otherwise 12 designated any additional expert witnesses. 13 I declare under penalty of perjury under the laws of the State of California that the 14 foregoing is true and correct. Executed on August 10, 2023, at San Francisco, California. 15 16 Stevie B. Baris 17 18 19 20 21 22 23 24 25 26 27 28 8 NW08-0000074 DEFENDANT’S MOTION IN LIMINE NO. 3 RE: EXPERT TESTIMONY NOT 14657728.1 DISCLOSED IN DEPOSITIONS OR EXPERT DISCLOSURES EXHIBIT A State Contractor License #828469 ISA Eertified Arhnrist #WE-UHZA Assessment parcel number 038-602-024-000 Date of report 02-28-202 l Date of initial inspection 01-27-2021 Date of damage 01-21-2021 Scope of Service Evaluate the damage, determine value, and estimate replacement cost to nine trees cut down without permission on property. Single trunk trees with a diameter of 4 inches or less were not included in this report. Trees are listed by - Species Diameter Height Square inches at the diameter Value at $25 dollars per square inch using Society of Consulting Arborist Standards Photo evidence is included with the trees numbered on the stump for identification Other photos show the cut down trees laying on the ground The trees are on the Southeast, and West side of the house All of the trees are close to the house so they are important to die property value Expert Tree Ears 5Wnce 1972 State Enntractnr License #828489 ISA Eemfied Arhnrist #wE~ul|2A Expert Tree Care Since 1972 State Euntrantnr License #828483 ISA Eemfied Arhurist #WE-UIIZA Expert Tree Eare Since 1972 Steve Bickford pn. BDX 248 Deer Park. EA94578 (787) 983-3455 State Enntrantur License #828489 ISA Certified Arhnrist #WE-HIIZA Expert Tree Care Since 1972 State Euntractur License #826469 ISA Eartiiied Arburist #WE-DIIZA Expert Tree Ears Since 1372 State Enntractur License #825489 ISA Egptjligd Arhnrist #WE-DIIZA Expert Tree Bare Since !H72 Steve Bickford P.l]. HEX 248 [leer Park, EA94578 (707) 9B3-3455 State Enntrantnr License #828489 ISA Certified Arburist #WE-BIIZA Tree six- Quercus agrifolia (Coastal live oak) 12-inch diameter ? Tall 260 sq inches Value $6,500 Expert Tree Ears Since 1972 Steve Bickford P.[]. BOX 246 Deer Park. EA 94578 (vm) 963-3455 State Euntrantnr Linense #825469 ISA Certified Arburist #WE-UIIQA Tree seven- Quercus agrifolia (Coastal live oak) Two tmnks 14 and 10-inch diameter 7 Tall 278 sq inches Value $6,950 Expert Tree Bare Since 1972 Steve Bickford P.0. Box 248 Deer Park, EA94578 (707)953-3455 State Euntrantur license #828489 ISA Eertified Aphgrigt #W E-DHZA Tree eight- Umbellularia califomica (Bay Tree) Seven trunks Four to 10-imeh diameter 7 Tall 242 square inches Value $6,050 Exper"t Tree Ears Since 1972 Steve Bickford PU. BDx 248 [leer Park. EA94576 (vw)953-3455 State Euntractnr License #826459 ISA Certified Arbnrisi #WE-UIIZA Tree nine- Umbellularia californica (Bay Tree) Three trunks Four to 10-inch diameter ? Tall 242 square inches Value $6,050 Expert Tree Care Since 1972 Steve Bickford pu. BDX 248 Deer Park. CA34578 (vm)983-3455 State Enntrantnr License #828453 ISA Eertified Arburist #WE-0112A Total Tree Value: $69,500 @ $25 per sq inch The redwoods are still on site The other trees were removed from the site so their height is unknown The redwoods were cut into short disks, a supposition is the removal crew were intending to sell the disks for landscaping art. Courts have awarded triple damage for criminal trespass Redwood disks Remaining debris on-site Expert Tree [Zara Since 1972 Steve Bickford P.D. BDX 248 Deer Park EA94575 (707) HB3-3455 State Cuntrantur License #828489 ISA Eertilied Arhurist #WE-[IIIZA Tree Health Fire damage to the trees when the house bumed during the glass fire. The trees were cut down before their condition was evaluated by a Certified Arborist. Cutting them down was premature. It doesn't kill a tree to have a fire near it, as evidenced by the redwoods, which have viable fluids in the cambium between the bark and wood. Even the tops of the trees are still trying to grow. I have included photo evidence of the cambium fluids on the ends of the cut sections. The fluid looks like a sticky red gum forming a ring under the circumference of the bark. xx, Steve Bickford PU. BOX 246 l]eer Park EA94578 (707)383-3455 State Contractor License #828459 ISA Eertifisd Arhu"ist #W E-DHZA Synopsis The trees were cut down before they had enough time to show new growth. There is a strong possibility that these trees were removed with no regard to their current health. The tree value is for the tree itself There is an added cost for removing the tree debris and the stumps. Mitiiation Moving acceptable sized replacement trees would include the following cost: Purchase cost Transportation Site preparation Installation Monitoring after planting These costs would be estimated by a specimen tree growing company The average mitigation costs would be estimated at twenty thousand or more per tree Submitted by Steve Bickford Certified Arborist Expert Tree Dare 'Since 1972 1 PROOF OF SERVICE James Raymond v. Jacob John Songer 2 Case No. 21CV001225 3 STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO 4 At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of San Francisco, State of California. My business address is 5 505 Sansome Street, Suite 1701, San Francisco, CA 94111. 6 On August 10, 2023, I served true copies of the following document(s) described as: 7 DEFENDANT’S MOTION IN LIMINE NO. 3 RE: EXPERT TESTIMONY 8 NOT DISCLOSED IN DEPOSITIONS OR EXPERT DISCLOSURES 9 on the interested parties in this action as follows: 10 Michael W. Rupprecht, Esq. T: 707-252-9000 / F: 707-252-0729 GVM LAW, LLP MRupprecht@gvmlaw.com 11 1000 Main Street, Suite 300 Cathy@gvmlaw.com Napa, CA 94559 12 Attorneys for Plaintiff, JAMES RAYMOND 13 BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the 14 document(s) to be sent from e-mail address pjohnson@hbblaw.com to the persons at the e-mail addresses listed in the Service List. I did not receive, within a reasonable time after 15 the transmission, any electronic message or other indication that the transmission was unsuccessful. 16 I declare under penalty of perjury under the laws of the State of California that the 17 foregoing is true and correct. 18 Executed on August 10, 2023, at San Francisco, California. 19 20 Paula M. Johnson 21 22 23 24 25 26 27 28 NW08-0000074 DEFENDANT’S MOTION IN LIMINE NO. 3 RE: EXPERT TESTIMONY NOT 14657728.1 DISCLOSED IN DEPOSITIONS OR EXPERT DISCLOSURES