Motion in Limine Evidentiary in People of the State of California ex rel. et al vs. Day, James et al| Trellis.Law

On July 24, 2019 a Motion,Ex Parte was filed involving a dispute between Feather River Air Quality Management District, People Of The State Of California Ex Rel., Placer County Air Pollution Control District, and Barbara Day, James Day, Mid Valley Consulting & General Engineering, for Civil-Roseville in the District Court of Placer County.

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MATTHEW C. MACLEAR, SBN 209228
4030 Martin Luther King Jr. Way
ELECTRONICALLY FILED
Superior Court of California,
Oakland, CA 94609
County of Placer
Telephone: (415) 568-5200
e-mail: mcm@atalawgroup.com 08/28/2020
By: Kathrine Zaragoza, Deputy Clerk

Attorneys for the Plaintiffs
The People of the State of California ex rel.
Placer County Air Pollution Air Control District
Feather River Air Quality Management District

CALIFORNIA SUPERIOR COURT

COUNTY OF PLACER
10

11
PEOPLE FOR THE STATE OF Case No.: SCV0043170
12 CALIFORNIA, ex rel. PLACER COUNTY
AIR POLLUTION CONTROL DISTRICT THE PEOPLE OF THE STATE OF
13 and FEATHER RIVER AIR QUALITY CALIFORNIA’S MOTION IN LIMINE
14 MANAGEMENT DISTRICT, NO.1TO EXCLUDE EXPERT
TESTIMONY OF JAMES DAY
15 Plaintiffs,
DATE: 8/28/20
16 VS. TIME: 8:30am
DEPT: 42
17 JAMES DAY, individually; BARBARA DAY,
individually, MID VALLEY CONSULTING & JUDGE: TBD
18
GENERAL ENGINEERING, a California
19 corporation; and DOES 1-10, inclusive, Trial Date: 9/8/2020

20
Defendants.
21

THE PEOPLE OF THE STATE OF CALIFORNIA’S MOTION IN LIMINE NO. 1 TO
EXCLUDE EXPERT TESTIMONY OF JAMES DAY
I INTRODUCTION

The People of the State of Califomia (the “People”) , on behalf of Placer County Air Pollution

Control District (“PCAPCD”) and the Feather River Air Quality Management District (“FRAQMD”)

(collectively “Air Districts”), move to exclude any and all expert opinion testimony offered by Mr.

James Day on behalf of Defendants James Day, Barbara Day, and Mid Valley Consulting & General

Engineering (collectively “Defendants”) or in rebuttal to the People’s experts. On July 21, 2020,

Defendants disclosed
that they intended to offer
the testimony of James Day as an expert witness.

(Maclear Decl., {| 11, Ex. H [Defendants’ Expert Witness Disclosure].) Mr. Day’s expert testimony

should be excluded because Defendants’ disclosure was untimely and failed to meet the disclosure
10 requirements prescribed by Califomia Code of Civil Procedure section 2034.260. Mr. Day’s expert

11 testimony should further be excluded because his testimony is unreliable and fails to meet the

12 requirements of Evidence Code sections 801 and 802.

13 11, ARGUMENT
A. DEFENDANTS’ DISCLOSURE FAILED TO MEET THE DISCLOSURE REQUIREMENTS
14 AND Must BE EXCLUDED.
15 First, Defendants failed to serve their expert disclosure on the People in a timely manner, and
16 thus, their disclosure is, as a matter
of law, inadequate and defective. On June 26, 2020, seventy-five
17 (75) days before the September 8, 2020 trial date, the People served its Demand for Exchange of
18 Expert Information via email per stipulation of the Parties. (Code Civ. Proc. § 2034.220; Declaration
19 of Matthew Maclear in Support of the People’s Motions in Limine (“Maclear Decl.”), Ex. E.)
20 According
to Code of Civil Procedure section 2034.230, the deadline to exchange expert information
21 (50 days before the trial date) was July 20, 2020. (See Weil & Brown, California Practice Guide:

Civil Procedure Before Trial {|8:1660 [Rutter Grp. 2019] [“The exchange must be made on or before
23 the date specified in the demand. ..or 50 days after service, whichever
is later.”]). On July 20, 2020,
24 the People served its Expert Witness Designation and Declaration via email, assuring virtually
25 instantaneous receipt by opposing counsel. (See Maclear Decl., Exs. F-G [People’s Expert
26 Designation and Declaration and Proof of Service].) Defendants missed the deadline. Defendants
27

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served their expert disclosure on July 21, 2020. (See Maclear Decl., Ex. H.) Thus, their expert

disclosure was untimely and, therefore, defective.

Similarly, Code of Civil Procedure section 2034.210 requires that the exchange of expert

witness lists and documents to be “simultaneous.” This requirement, “prevent[s] either party from

taking advantage” of an earlier disclosure by opposing counsel. (Weil & Brown, California Practice

Guide: Civil Procedure Before Trial {| 8:1665 [Rutter Grp. 2019]). “[A] party may demand a

simultaneous exchange of expert witness information by all parties. Unreasonable failure to

respond makes the noncomplying party's expert opinion inadmissible, unless the court grants relief.”

(Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 538.) Defendants have not sought such

10 telief, and thus, the expert testimony should
be excluded. Further, it was only after Defendants reaped.

11 the benefits of leaming the identity and categories of expert opinion the People would be offering at

12 trial did Defendants designate James Day as an expert.

13 Second, Defendants failed to comply whatsoever with the disclosure requirements prescribed.

14 by Code of Civil Procedure 2034.260. All Defendants did was identify James Day as a non-retained

15 expert. (Maclear Decl., {| 21, Ex. H.) However, a party is required to include the following

16 information in their expert declaration:

17 1) A brief narrative statement of the qualifications of each expert.

18 2) A brief narrative statement of the general substance of the testimony that the expert is
19 expected to give.

20 3) A representation
that the expert has agreed to testify
at the trial.

21 4) A representation that the expert will be sufficiently familiar with the pending action to

submit to a meaningful oral deposition conceming the specific testimony, including an.

23 opinion and its basis, that the expert is expected
to give
at tial.

24 5) A statement of the expert’s hourly and daily fee for providing deposition testimony and

25 for consulting with the retaining attomey.

26 Code Civ. Proc. § 2034.260(c). Defendants’ statement did not include any of the required elements,

27 let alone satisfy these requirements. Defendants statement merely provided the name and address of

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Mr. Day. (Maclear Decl., 121, Ex. H.) Defendants did not expressly
state that Mr. Day has agreed

to give expert testimony at trial or that Mr. Day would be sufficiently familiar with the pending action

to give meaningful expert testimony. (Maclear Decl., Ex. H.) More importantly, Defendants did not

state Mr. Day’s qualifications and the general substance of the testimony (Id.); therefore, the People

were and still are unaware of the substance of what expert opinions Mr. Day intends
to offer at trial.

(Maclear Decl., 121-22.)

Inessence, Defendants’ counsel failed to submit
an expert witness declaration. Code of Civil

Procedure§ 2034.300 states, in relevant part: “...on objection of any party who has made a complete

and timely compliance with Section 2034.260, the trial court shall exclude fromevidence the expert
10 opinion of any witness that is offered by any party who as unreasonably failed to do any of the

11 following: (a) List that witness as an expert under 2034.260; (b) Submit an expert witness declaration;

12 (c) Produce reports and writings of expert witnesses under Section 2034.270...” This motion

13 constitutes the People’s objection under Section 2034.300. Defendants failed to include the

14 information as required by Section 2034.260. Hence, Defendants did not properly produce an expert

15 declaration. Therefore, any expert testimony of James Day must be excluded pursuant to Code of

16 Civil Procedure § 2034.300(b).

17 Defendants are not excused from these requirements because they designated Mr. Day as non-

18 retained expert witness. Code of Civil Procedure section 2034.210(b) makes clear that these

19 disclosures requirements apply to a designated expert, who is “a party or an employee of a party,”

20 and Mr. Day is both a party and an owner of Defendant Mid Valley Consulting & General

While the People did depose Mr. Day individually and as the person most qualified for Mid

23 Valley, these facts do not excuse Defendants significant
and strategic non-compliance with the expert

24 disclosure requirements. “The expert witness disclosure requirements ae intentionally

25 rigorous.” (Ajaxo, Inc. v. E*Trade Financial Corp. (2020) 48 Cal.App.5th 129, 181 [citing Bonds v.

26 Roy (1999) 20 Cal.4th 140, 146; Boston, supra, 170 Cal.App.4th at p. 951].) In Ajaxo, the court

27 upheld exclusion of expert testimony because the Defendant did not disclose the specific subject

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matter on which the expert would testify. (Id. at 183-184.) The People have been deprived of critical

information to evaluate and prepare for an expert deposition of James Day. Thus, the People would

be prejudiced if James Day were to express expert opinions at trial. (Maclear Decl., ]21-22.)

Excluding expert testimony is the requisite consequence for failing to meet expert disclosure

requirements. Code Civ. Proc. § 2034.300. “[T]Jhe exclusion sanction applies with equal force when.

a party fails to comply with the substantive aspect of the expert witness declaration

(Id. at 181-182 [citing Bonds, 20 Cal.4th at 141-142].) Accordingly, Defendants should
be precluded

from offering
Mr. Day’s expert opinion regarding
any subject
at trial.

B. JAMES Day’s EXPERT TESTIMONY SHOULD BE EXCLUDED BECAUSE HE Is NoT
QUALIFIED TO BE AN EXPERT UNDER EVIDENCE CODE SECTIONS 801 AND 802.
10
Although Defendants did not disclose the subjects on which Mr. Day will offer his opinions,
11
the People assume that Mr. Day will attempt to express expert opinions regarding vapor recovery
12
systems and in-station diagnostic (“ISD”) systems at gas dispensing facilities (“GDFs”), as well as
13
certification and regulatory requirements that technicians must meet in order to service GDFs with
14
vapor recovery and ISD systems. (Maclear Decl., {| 24.) Mr. Day’s expert testimony should be
15
excluded because the basis for his knowledge, which the People assume to be his experience in the
16
field and intennittent training, is unreliable. (Maclear Decl., 4123.)
17
An expert opinion has no value if its basis is unsound. [Citations.] Matter that
18
provides a reasonable basis forone opinion does not necessarily provide a
19 reasonable basis for another opinion. Evidence Code section 801, subdivision (b),
states that a court must determine whether the matter that the expert relies on is of
20 atype that an expert reasonably can rely on ‘in forming an opinion upon the subject
to which his testimony relates.’ ...We construe this to mean that the matter relied
21 on must provide a reasonable basis for the particular opinion offered, and that an
expert opinion based on speculation or conjecture is inadmissible.

23 (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 770.)

24 The People’s allegations in this case center around Defendants’ repeated and consistent

25 emissions-causing acts and omissions, along with many failures to meet regulatory requirements for

26 servicing GDFs. Mr. Day is not only named as an individual but also is the person most responsible

27 for Mid Valley’ s compliance with such requirements. Thus, the evidence that the People will present

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at trial not only demonstrates Defendants’ repeated failures to comply with legal requirements but

also demonstrates that Mr. Day is not a reliable expert on such requirements. (Maclear Decl., { 18,

25) For example, Mr. Day testified that the basis for knowing and understanding the regulatory and

technical requirements to work on vapor recovery and ISD systems is for a person to hold the

certifications required
to maintain, repair, and test vapor recovery and ISD systems. (Maclear Decl.,

4] 25, Ex. K [excerpts of deposition transcript of Mid Valley Person Most Qualified Volume II], at

318:6-321:19.) Yet the People’s evidence shows that Mr. Day often failed to acquire these

certifications and did uncertified work in violation of the Califomia Health and Safety Code, orders

of the Califomia Air Resources Board, and nules issued by Plaintiff air districts. (Maclear Decl., 1

10 18, 25.) In fact, the People will show that James Day personally did uncertified work on at least

11 twenty-three (23) different occasions. (Id.) Mr. Day’s experience and training cannot
be the basis of

12 his designation as an expert when his lack of training and certifications led to toxic air emissions, and

13 his repeated failure to comply with applicable regulatory requirements on which he may provide

14 expert testimony, are a factual issue at the heart
of this case. (Maclear Decl., 126.)

15 The People also anticipate that Defendants may offerJames Day to provide expert testimony

16 regarding the ability of Defendants to pay and/or the financial burden on the Defendants resulting

17 from any penalties levied by the Court. (Maclear Decl., {] 27.) James Day has no experience or

18 training in economics or finance, let alone requisite experience or training sufficient provide the
19 necessary basis for expert opinion at trial (Id.) The People, for example, have retained an expert

20 economist, Phill Allman, Phd to provide expert testimony as to Defendants ability to pay and the lack

21 of financial burden at trial. (Maclear Decl., | 10, Ex. F.) Unlike Defendants, the People properly

listed the Mr. Allman in their June 20, 2020 Expert Designation, which included, inter alia, the

23 specific topics Mr. Allman is anticipated
to testify to at trial and the expected
bases for his opinion.

24 (Id)
25 It is Defendants’ burden
to show that Mr. Day is qualified to be an expert based on “special

26 knowledge, skill, experience, training, and education.” (Evid. Code§ 802.) Defendants, first, have

27 not offered
the basis for his opinion
as required by Code of Civil Procedure section 2034.260. Second,

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the evidence in the record and which will be presented at trial shows that Mr. Day has repeatedly

failed to acquire the requisite training, education, and certifications to conduct the work on which he

intends to offer his alleged expert opinion as to ISD and vapor recovery systems, or on Defendants’

ability to pay penalties. Accordingly, Defendants have failed and cannot meet their burden to show

Mr. Day’s reliability as an expert witness. (Maclear Decl., 128.)

Ill. CONCLUSION

Because Defendants have failed to meet the requisite expert disclosure requirements, causing

undue prejudice to the People, and they have failedto show that Mr. Day is a reliable
expert witness,

the People respectfully request that the Court exclude all expert testimony offered by Mr. Day on
10 behalf of Defendants.

11 Respectfully submitted,

12 DATED: August 28, 2020 AQUA TERRA AERIS LAW GROUP
13

14 < An \ « \ 4
Matthew C. Maclear
15 Attomeys for Attomeys for the
16 People ex rel. PCAPCD and
FRAQMD
17

18
19

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Case Info

Case No.

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Document Filed Date

August 28, 2020

Case Filing Date

July 24, 2019

County

Parties

Barbara Day Defendant
Feather River Air Quality Management District Plaintiff
Gentry, Galen Micah Hughey Phillips, LLP Attorney for the Defendant
James Day Defendant
Maclear, Matthew Christophe Aqua Terra Aeris Law Group Attorneys for Plaintiffs
Mid Valley Consulting & General Engineering Defendant
People of the State of California ex rel. Plaintiff
Placer County Air Pollution Control District Plaintiff
Noah Phillips Attorneys for Defendants
Ryan Lochan Attorneys for Defendants
Kevin Hughey Attorneys for Defendants
Erica Maharg Attorneys for Plaintiffs
James Brett Attorneys for Plaintiffs

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Motion,Ex Parte: People of the State of California ex rel. et al vs. Day, James et al

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