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A JAMES M. DOMBROSKI, ESQ. (SBN 56898)
LAW OFFICE 0F JAMES M. DOMBROSKI SAN MATEO cou
Post Office Box 751027 ‘OCT 1 2 2018
Petaluma, CA 94975 ‘1
Tel: (707) 762-7807 °‘°"‘°'
Court
Fax: (707) 759—0419 By
THOMAS 1.SABERI, ESQ. (SBN 169652) m_wx h
OtomVODU‘I-hcok)
1045 Airport Blvd, Suite 12 $536294
,-'
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So. San Francisco, CA 94080 .’
Memoran du m
of
'
Pomts and
‘
-"”325"? Authorities
Telephone: (650) 588—2428 in0
Facsimile: (650) 873-7046
l/Wl/Il/Il/I/I/ll/I/I/ll/I/lI/fl/Ill/l
Attorneys for Plaintiff
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN MATEO
ANDY SABERI, CASE N0. CIV 536294
Plaintiff, Complaint filed: 11/ 18/201 5
vs. MEMORANDUM OF POINTS AND
AUTHORITIES TN OPPOSITION TO
LES STANFORD CHEVROLET CADILLAC,
INC, etc., et a1.
BODYK DEDYK DBA SAFE AUTO
TRANSPORT’S MOTION IN LIMINE
NUMBER
vvvvvvvvvvvvvvvvv
Defendants. 1 TO LIMIT EXPERT
TESTIMONY TO MATTERS TESTIFIED
TO AT DEPOSITION; PROOF OF SERVICE
DATE: October 15, 2018
TIME: 9:00 a.m.
DEPT: 18, Courtroom 21
PRESIDING JUDGE: Susan Irene Etezadi
PRELIMINARY STATEMENT
Defendant, Bogdan Dedyk dba Safe Auto Transport (hereinafter referred to as “Safe
Auto”) has filed his motion in limine number 1 to limit testimony of Plaintiff’s expert witnesses
to matters which they testified to during their deposition.
The motion is not supported by a declaration and itdoes not set forth specifically, or even
1
OPPOSITION TO DEFENDANT’S MOTION IN LIMINE NUMBER ONE RE
SCOPE OF EXPERT TESTIMONY
in general terms, what matters were testified to by the experts at depositions and which matters
are sought t0 be excluded from testimony at trial.No deposition transcripts have been submitted
demonstrating the scope of expert testimony at their depositions, and n0 evidence has been
presented t0 the effect that the experts were ever asked whether their testimony at the deposition
constituted all of their opinions
OQOWVOUO'l-hCDN—X
on the issues in this caée. The moving papers likewise contain
no expert witness designations, and also fail to identify the experts to whom the motion relates.
DISCUSSION
I
A MOTION IN LIMINE LACKING FACTUAL SUPPORT
MUST BE DENIED AS A MATTER OF LAW
1n Cal. Prac. Guide Civ. Trials & Ev. Ch. 4-F, Section 42282.15, the authors discuss
motions in limine and state:
“Even if the subject matter is proper, in limine motions lacking
factual support and argument are improper. If allowed, such
motions would force the court to “rule in avacuum.” [Kelly v. New
West Fed. Sav., supra, 49 CA4th at 670, 56 CRZd at 809]
‘For example, it is improper to bring a motion in limine seeking to
exclude speculative testimony without any factual support or
argument suggesting the nature and type of speculative testimony
expected. [Kelly v. New West Fed. Sav., supra, 49 CA4th at 671, 56
CR2d at 809]”
“Motions in limine, t0 the extent that they rely upon afactualfoundation, are n0 different
than any other pretrial motion and must be accompanied by appropriate supporting documents.
Absent an appropriatefactual showing t0 support the motion, the court should not entertain
the motion.” (Kelly v. New West Federal Savings (1996) 49 Ca1.App.4th 659, 671, fn 3, [56
Cal.Rptr.2d 803, 809].)
In the case at bar, no evidence of any kind has been submitted in support 0f defendant’s
motion in limine and there isabsolutely no attempt to set forth in the moving papers what the
deposition testimony consisted of, 0r what matters would potentially testified to that was not
testified to at the deposition.
II
2
OPPOSITION TO DEFENDANT’S MOTION 1N LIMINE NUMBER ONE RE
SCOPE OF EXPERT TESTIMONY
.A
AN EXPERT’S TESTIMONY AT TRIAL MAY BE
LIMITED TO TESTIMONY AT HIS OR HER
DEPOSITION IN LIMITED CIRCUMSTANCES
ONLY, AND DEFENDANT HAS NOT PRESENTED
EVIDENCE ESTABLSHING FOUNDATION FOR
SUCH EXCLUSION
Before an expert’s testimony
OtomVODU'l-AOJN
may be limited to the opinions expressed during a
deposition, the party seeking exclusion must demonstrate that during the deposition the
expert explicitly testified that the opinions expressed constituted ALL 0f his opinions in the
case. (Jones v. Moore (2000) 80 Cal. App. 4th 557, 564—565, 95 Cal. Rptr. 2d 216, 220421.)
Moreover, an expert may expand upon the description and interpretation of opinions
expressed during his deposition. (De Palma v Rodriguez (2007) 151 Cal. App. 4th 159, 165, 59
Cal. Rptr. 3d 479, 483 [expert may expand the description and interpretation of the conclusions
stated in his deposition].)
“An expert may also testifi/ concerning matters about which the expert was not asked
during his 0r her deposition, when the expert was not asked t0 state affirmatively that his 0r her
opinions at trial would be limited t0 those expressed during the deposition and when these
matters are within the scope 0fthe expert witness declaration (see § 8.76) submittedfor this
witness. Jones v Moore, supra, 80 CA4th at 566.” (Cal. Judges Benchbook Civ. Proc. Trial §
6.13.)
“
In addition, “Although a party isrequired to ‘disclose the substance 0fthefacts and the
J” “does not require disclosure ofspecifz‘cfacts and
opinions to which the expert will testifi, this
”
opinions. (Williams v. VolkswagenwerkAktiengesellschafl (1986) 180 Cal.App.3d 1244, 1257,
1258, 226 Cal.Rptr. 306.)” (DePaIma v. Rodriguez, supra, 151 Ca1.App.4th 159, 165 [59
Cal.Rptr.3d 479, 483].)
“...An expert is not precluded, however, fi‘om expanding 0n his 0r her description and
.” Benchbook
interpretation oflhe conclusions stated in the expert’s deposition. . (Cal. Judges
Civ. Proc. Trial § 6.13.)
3
OPPOSITION TO DEFENDANT’S MOTION IN LIMINE NUMBER ONE RE
SCOPE OF EXPERT TESTIMONY
With respect to impeachment, even a wholly nondisclosed expert (letalone one who has
been
disclosed and whose deposition has been taken) is permitted to testify that a foundational fact
relied on by a prior expert is either incorrect 0r nonexistent. (See §
_(_2_C_P2034.310; Mizel v. City
of Santa Monica (2001) 93
(OWNODU'IAOJNA
CA4th 1059, 1067—1068, 113 CRZd 649, 655; Howard Contracting,
Inc. v. G.A. MacDonald Const. Co., Inc. (1999) 71 CA4th 38, 53, 83 CRZd 590, 598.)
In the case at bar, Plaintiff does not presently contemplate presenting expert testimony at
trialwhich is different from that which has been or may be, disclosed during a deposition of such
expert. Because the moving papers d0 not identify the experts or the testimony that is the subject
of this motion, arguing the specifics of defendant’s contentions on this motion isimpossible.
However, this motion in limine should be denied because it islacking in evidentiary
support, because there has been no evidence presented by defendant that any expert stated at the
depositions were all of the expert’s opinions in the case, and because even if such testimony
were shown to have been given, the expert must stillbe permitted to expand upon the opinions
expressed, or to testify as to evidence not available to expert when the deposition is taken (such
as evidence concealed by the defense and presented only during the trial),or to testify on rebuttal
for impeachment purposes
NNNNNAAAAAAAAAA
as to incorrect assumptions about foundational facts.
ADJNAOCOQNOUI-waAO
CONCLUSION
Based on the foregoing arguments and authorities, Plaintiff submits that Defendant’s
motion in limine to limit the scope of expert testimony must be denied. There isno evidentiary
support, the motion is highly vague and conclusory, and Defendant has not established that the
criteria for potential exclusion of such testimony exist and the scope of exclusion sought is
overbroad.
DATED: October 12, 2018.
25 LAW O .'
JAMES M. DOMBROSKI
26
27
AMES . DOMBROSKI, ESQ.
28 Attor y for Plaintiff
4
OPPOSITION TO DEFENDANT’S MOTION IN LIMINE NUMBER ONE RE
SCOPE 0F EXPERT TESTIMONY
__\
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF SONOMA
I am employed in the County of Sonoma, State of California. I am over the age of 18 and
not a party to the within action. My business address is P.O. Box 751027, Petaluma, CA 94975.
On October L,%018, I served the foregoing document described as MEMORANDUM
OF POINTS AND AUTHORITIES IN OPPOSITION TO BODYK DEDYK DBA SAFE
OCOWNOU'I-bwk)
AUTO TRANSPORT’S MOTION IN LIMINE NUMBER 1 T0 LIMIT EXPERT
TESTIMONY TO MATTERS TESTIFIED TO AT DEPOSITION; PROOF OF
SERVICE, as follows:
Michael LeVangie -
James Attridge
LeVangie Law Group 270 Divisadero Street, Suite 3
2021 N. Street San Francisco, California 94117
Sacramento, California 95841
Attorney for Bogdan Dedyk dba Safe Attorney for Defendant
Auto Transport BJ Interstate Auto Transporter’s Inc.
[ X ]
U.S. MAIL - I deposited such envelope in the mail at Petaluma, California. The
envelope was mailed with postage thereon fully prepaid as follows: I am readily familiar with
firm’s practice of collection and processing correspondence for mailing. Under the practice it
would be deposited with U.S. postal service on the same day with postage thereon fully prepaid
at Petaluma, California, in the ordinary cause of business.
[ ]
BY FACSIMILE - To the facsimile number of the firm listed above.
[ ]
OVERNIGHT DELIVERY - I deposited such envelope in the drop box at Petaluma,
California. I am readily familiar with firm’s practice of collection and processing
correspondence for Federal Express. Under the practice, it would be deposited in the Overnite
Express drop-box for pickup 0n the same day at Petaluma, California, in the ordinary course of
business.
[ ]
BY PERSONAL SERVICE — Icaused such an envelope to be hand delivered t0 the
office of the addressee.
[ ]
BY EMAIL - I caused a copy to be emailed to the first listed above.
Ideclare under penalty of perjury under the laws of the State of California that the above
is true and correct. I declare that I am employed in the office 0f a member of the bar of this court
at whose direction the service was made.
Executed on October _\L_2,/201 8, atPetaluma, C
JAMES M. DOMBROSKI
PRINT NAME
5
V SIGNATURE
OPPOSITION TO DEFENDANT’S MOTION IN LIMINE NUMBER ONE RE
SCOPE OF EXPERT TESTIMONY
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A JAMES M. DOMBROSKI, ESQ. (SBN 56898) LAW OFFICE 0F JAMES M. DOMBROSKI SAN MATEO cou Post Office Box 751027 ‘OCT 1 2 2018 Petaluma, CA 94975 ‘1 Tel: (707) 762-7807 °‘°"‘°' Court Fax: (707) 759—0419 By THOMAS 1.SABERI, ESQ. (SBN 169652) m_wx h OtomVODU‘I-hcok) 1045 Airport Blvd, Suite 12 $536294 ,-' >“ ‘- ~~ x. So. San Francisco, CA 94080 .’ Memoran du m of ' Pomts and ‘ -"”325"? Authorities Telephone: (650) 588—2428 in0 Facsimile: (650) 873-7046 l/Wl/Il/Il/I/I/ll/I/I/ll/I/lI/fl/Ill/l Attorneys for Plaintiff SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN MATEO ANDY SABERI, CASE N0. CIV 536294 Plaintiff, Complaint filed: 11/ 18/201 5 vs. MEMORANDUM OF POINTS AND AUTHORITIES TN OPPOSITION TO LES STANFORD CHEVROLET CADILLAC, INC, etc., et a1. BODYK DEDYK DBA SAFE AUTO TRANSPORT’S MOTION IN LIMINE NUMBER vvvvvvvvvvvvvvvvv Defendants. 1 TO LIMIT EXPERT TESTIMONY TO MATTERS TESTIFIED TO AT DEPOSITION; PROOF OF SERVICE DATE: October 15, 2018 TIME: 9:00 a.m. DEPT: 18, Courtroom 21 PRESIDING JUDGE: Susan Irene Etezadi PRELIMINARY STATEMENT Defendant, Bogdan Dedyk dba Safe Auto Transport (hereinafter referred to as “Safe Auto”) has filed his motion in limine number 1 to limit testimony of Plaintiff’s expert witnesses to matters which they testified to during their deposition. The motion is not supported by a declaration and itdoes not set forth specifically, or even 1 OPPOSITION TO DEFENDANT’S MOTION IN LIMINE NUMBER ONE RE SCOPE OF EXPERT TESTIMONY in general terms, what matters were testified to by the experts at depositions and which matters are sought t0 be excluded from testimony at trial.No deposition transcripts have been submitted demonstrating the scope of expert testimony at their depositions, and n0 evidence has been presented t0 the effect that the experts were ever asked whether their testimony at the deposition constituted all of their opinions OQOWVOUO'l-hCDN—X on the issues in this caée. The moving papers likewise contain no expert witness designations, and also fail to identify the experts to whom the motion relates. DISCUSSION I A MOTION IN LIMINE LACKING FACTUAL SUPPORT MUST BE DENIED AS A MATTER OF LAW 1n Cal. Prac. Guide Civ. Trials & Ev. Ch. 4-F, Section 42282.15, the authors discuss motions in limine and state: “Even if the subject matter is proper, in limine motions lacking factual support and argument are improper. If allowed, such motions would force the court to “rule in avacuum.” [Kelly v. New West Fed. Sav., supra, 49 CA4th at 670, 56 CRZd at 809] ‘For example, it is improper to bring a motion in limine seeking to exclude speculative testimony without any factual support or argument suggesting the nature and type of speculative testimony expected. [Kelly v. New West Fed. Sav., supra, 49 CA4th at 671, 56 CR2d at 809]” “Motions in limine, t0 the extent that they rely upon afactualfoundation, are n0 different than any other pretrial motion and must be accompanied by appropriate supporting documents. Absent an appropriatefactual showing t0 support the motion, the court should not entertain the motion.” (Kelly v. New West Federal Savings (1996) 49 Ca1.App.4th 659, 671, fn 3, [56 Cal.Rptr.2d 803, 809].) In the case at bar, no evidence of any kind has been submitted in support 0f defendant’s motion in limine and there isabsolutely no attempt to set forth in the moving papers what the deposition testimony consisted of, 0r what matters would potentially testified to that was not testified to at the deposition. II 2 OPPOSITION TO DEFENDANT’S MOTION 1N LIMINE NUMBER ONE RE SCOPE OF EXPERT TESTIMONY .A AN EXPERT’S TESTIMONY AT TRIAL MAY BE LIMITED TO TESTIMONY AT HIS OR HER DEPOSITION IN LIMITED CIRCUMSTANCES ONLY, AND DEFENDANT HAS NOT PRESENTED EVIDENCE ESTABLSHING FOUNDATION FOR SUCH EXCLUSION Before an expert’s testimony OtomVODU'l-AOJN may be limited to the opinions expressed during a deposition, the party seeking exclusion must demonstrate that during the deposition the expert explicitly testified that the opinions expressed constituted ALL 0f his opinions in the case. (Jones v. Moore (2000) 80 Cal. App. 4th 557, 564—565, 95 Cal. Rptr. 2d 216, 220421.) Moreover, an expert may expand upon the description and interpretation of opinions expressed during his deposition. (De Palma v Rodriguez (2007) 151 Cal. App. 4th 159, 165, 59 Cal. Rptr. 3d 479, 483 [expert may expand the description and interpretation of the conclusions stated in his deposition].) “An expert may also testifi/ concerning matters about which the expert was not asked during his 0r her deposition, when the expert was not asked t0 state affirmatively that his 0r her opinions at trial would be limited t0 those expressed during the deposition and when these matters are within the scope 0fthe expert witness declaration (see § 8.76) submittedfor this witness. Jones v Moore, supra, 80 CA4th at 566.” (Cal. Judges Benchbook Civ. Proc. Trial § 6.13.) “ In addition, “Although a party isrequired to ‘disclose the substance 0fthefacts and the J” “does not require disclosure ofspecifz‘cfacts and opinions to which the expert will testifi, this ” opinions. (Williams v. VolkswagenwerkAktiengesellschafl (1986) 180 Cal.App.3d 1244, 1257, 1258, 226 Cal.Rptr. 306.)” (DePaIma v. Rodriguez, supra, 151 Ca1.App.4th 159, 165 [59 Cal.Rptr.3d 479, 483].) “...An expert is not precluded, however, fi‘om expanding 0n his 0r her description and .” Benchbook interpretation oflhe conclusions stated in the expert’s deposition. . (Cal. Judges Civ. Proc. Trial § 6.13.) 3 OPPOSITION TO DEFENDANT’S MOTION IN LIMINE NUMBER ONE RE SCOPE OF EXPERT TESTIMONY With respect to impeachment, even a wholly nondisclosed expert (letalone one who has been disclosed and whose deposition has been taken) is permitted to testify that a foundational fact relied on by a prior expert is either incorrect 0r nonexistent. (See § _(_2_C_P2034.310; Mizel v. City of Santa Monica (2001) 93 (OWNODU'IAOJNA CA4th 1059, 1067—1068, 113 CRZd 649, 655; Howard Contracting, Inc. v. G.A. MacDonald Const. Co., Inc. (1999) 71 CA4th 38, 53, 83 CRZd 590, 598.) In the case at bar, Plaintiff does not presently contemplate presenting expert testimony at trialwhich is different from that which has been or may be, disclosed during a deposition of such expert. Because the moving papers d0 not identify the experts or the testimony that is the subject of this motion, arguing the specifics of defendant’s contentions on this motion isimpossible. However, this motion in limine should be denied because it islacking in evidentiary support, because there has been no evidence presented by defendant that any expert stated at the depositions were all of the expert’s opinions in the case, and because even if such testimony were shown to have been given, the expert must stillbe permitted to expand upon the opinions expressed, or to testify as to evidence not available to expert when the deposition is taken (such as evidence concealed by the defense and presented only during the trial),or to testify on rebuttal for impeachment purposes NNNNNAAAAAAAAAA as to incorrect assumptions about foundational facts. ADJNAOCOQNOUI-waAO CONCLUSION Based on the foregoing arguments and authorities, Plaintiff submits that Defendant’s motion in limine to limit the scope of expert testimony must be denied. There isno evidentiary support, the motion is highly vague and conclusory, and Defendant has not established that the criteria for potential exclusion of such testimony exist and the scope of exclusion sought is overbroad. DATED: October 12, 2018. 25 LAW O .' JAMES M. DOMBROSKI 26 27 AMES . DOMBROSKI, ESQ. 28 Attor y for Plaintiff 4 OPPOSITION TO DEFENDANT’S MOTION IN LIMINE NUMBER ONE RE SCOPE 0F EXPERT TESTIMONY __\ PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SONOMA I am employed in the County of Sonoma, State of California. I am over the age of 18 and not a party to the within action. My business address is P.O. Box 751027, Petaluma, CA 94975. On October L,%018, I served the foregoing document described as MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO BODYK DEDYK DBA SAFE OCOWNOU'I-bwk) AUTO TRANSPORT’S MOTION IN LIMINE NUMBER 1 T0 LIMIT EXPERT TESTIMONY TO MATTERS TESTIFIED TO AT DEPOSITION; PROOF OF SERVICE, as follows: Michael LeVangie - James Attridge LeVangie Law Group 270 Divisadero Street, Suite 3 2021 N. Street San Francisco, California 94117 Sacramento, California 95841 Attorney for Bogdan Dedyk dba Safe Attorney for Defendant Auto Transport BJ Interstate Auto Transporter’s Inc. [ X ] U.S. MAIL - I deposited such envelope in the mail at Petaluma, California. The envelope was mailed with postage thereon fully prepaid as follows: I am readily familiar with firm’s practice of collection and processing correspondence for mailing. Under the practice it would be deposited with U.S. postal service on the same day with postage thereon fully prepaid at Petaluma, California, in the ordinary cause of business. [ ] BY FACSIMILE - To the facsimile number of the firm listed above. [ ] OVERNIGHT DELIVERY - I deposited such envelope in the drop box at Petaluma, California. I am readily familiar with firm’s practice of collection and processing correspondence for Federal Express. Under the practice, it would be deposited in the Overnite Express drop-box for pickup 0n the same day at Petaluma, California, in the ordinary course of business. [ ] BY PERSONAL SERVICE — Icaused such an envelope to be hand delivered t0 the office of the addressee. [ ] BY EMAIL - I caused a copy to be emailed to the first listed above. Ideclare under penalty of perjury under the laws of the State of California that the above is true and correct. I declare that I am employed in the office 0f a member of the bar of this court at whose direction the service was made. Executed on October _\L_2,/201 8, atPetaluma, C JAMES M. DOMBROSKI PRINT NAME 5 V SIGNATURE OPPOSITION TO DEFENDANT’S MOTION IN LIMINE NUMBER ONE RE SCOPE OF EXPERT TESTIMONY