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1 Louis A. Gonzalez, Jr., State Bar No. 157373
lgonzalez@weintraub.com
2 Zack S. Thompson, State Bar No. 317110
zthompson@weintraub.com
3 weintraub tobin chediak coleman grodin
LAW CORPORATION 4/8/2021
4 400 Capitol Mall, 11th Floor
Sacramento, CA 95814
5 Tel: (916) 558-6000
Fax: (916) 446-1611
6
Attorneys for Plaintiffs Erik Benik,
7 Wishbone Ranch, LLC and James Heath
8
SUPERIOR COURT OF CALIFORNIA
9
IN AND FOR THE COUNTY OF BUTTE
10
11 ERIK BENIK, an individual; WISHBONE Case No. 18CV03508
RANCH, LLC, a California limited liability
tobin chediak coleman grodin
12 company; and JAMES HEATH, an PLAINTIFFS’ MOTION IN LIMINE NO. 6
individual, TO PRECLUDE IMPROPER LEGAL OPTION
13 EVIDENCE FROM DEFENDANT EGAN’S
Plaintiffs, STANDARD OF CARE EXPERT ALAN
14 WALLACE, ESQ.
vs.
15 Trial Date: April 19, 2021
13290 CONTRACTORS LANE, LLC, a
California limited liability company; Dept: 1
16 Time: 8:00 a.m.
RICHARD BRINGGOLD, an individual;
LAW CORPORATION
and DOES 1 through 25, inclusive, Judge: Hon. Tamara L. Mosbarger
17
weintraub
18 Defendants. Complaint Filed: October 23, 2018
FAC Filed: March 15, 2019
19
SAC Filed: August 7, 2020
20
21
22 TO THE BUTTE COUNTY SUPERIOR COURT AND TO ALL PARTIES AND TO THE IR
23 ATTORNEYS OF RECORD:
24 Attorneys for Plaintiffs Erik Benik, Wishbone Ranch, LLC and James Heath (collectively,
25 “Plaintiffs”) respectfully move the Butte County Superior Court (“Court) in limine for an order:
26 1. Precluding defendants’ expert Alan Wallace, who is an attorney, from testifying
27 about legal issues or rendering a legal opinion, including the existence of Egan’s fiduciary
28 duties to Benik; and
{3138861.DOCX;} 1 Plaintiffs’ Motion in Limine No. 6
1 2. Precluding attorney Alan Wallace, from testifying about ultimate issues, including
2 whether Egan’s actions violated her legal duties.
3 This motion is made on the grounds that experts are not permitted to usurp the role of
4 the Judge to inform the jury of the law applicable in the case and to decide any purely legal
5 issue. Nor are experts permitted to usurp the function of the jury to weigh the evidence and
6 draw the necessary conclusions. This motion is based upon this notice; the accompanying
7 memorandum of points and authorities; the accompanying compendium of evidence,
8 including the declaration of Louis A. Gonzalez, Jr. and the exhibits in that compendium ; any
9 supplemental memoranda of points and authorities as may hereafter be filed with the Court or
10 stated orally at the hearing; all the papers and records on file in this action; and any oral
11 and/or documentary evidence that may be presented at the hearing.
tobin chediak coleman grodin
12
13 Dated: April 8, 2021 Respectfully submitted,
14 W E INTRAUB TOBIN CHEDIAK COLEMAN GRODIN
Law Corporation
15
16
LAW CORPORATION
By:
17 Louis A. Gonzalez, Jr.
weintraub
Zack S. Thompson
18 Attorneys for Plaintiffs Erik Benik,
Wishbone Ranch, LLC and James Heath
19
20
21
22
23
24
25
26
27
28
{3138861.DOCX;} 2 Plaintiffs’ Motion in Limine No. 6
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Experts are not permitted to usurp the role of the judge to inform the jury of the law
4 applicable in the case and to decide any purely legal issue. Nor are experts permitted to usurp
5 the function of the jury to weigh the evidence and draw the necessary conclusions. Accordingly,
6 the Court should preclude Defendants’ expert Alan Wallace, an attorney, from offering any
7 opinions on ultimate issues of law, including whether laws did or did not apply to defendant
8 Kathryn Egan and how those laws apply to her conduct.
9 II. PERTINENT FACTS
10 Defendant Kathryn Egan admits that she prepared the first and second lease between
11 Benik and the Landlord Defendants “as directed by Mr. Bringgold and Mr. Benik.” (Exh. B
tobin chediak coleman grodin
12 (“Egan Depo.”) at 37:2–5, 73:20–22; see Exhs. A, F, H.) She also admits that she met with
13 Mr. Benik “[t]o discuss the possibility of a lease option” for the Property because “he might be
14 interested in moving [his business] over there” because she had heard that he needed more
15 space. (Egan Depo. at 24:13–25:12.) She took what she learned from both Benik and
16 Bringgold at this meeting and prepared the first lease. (Egan Depo. at 28:22–29:2, 36:9–11,
LAW CORPORATION
17 37:2–5.) She also participated in the negotiations for the second lease, in order to prepare its
weintraub
18 terms. (Egan Depo. at 73:20–75:6.)
19 These circumstances raise complicated issues of Egan’s role as an agent and her
20 compliance with the laws in the Civil Code and the Business & Professions Code governing
21 agents in real estate transactions, including leases and purchase options. (See, e.g., Civ.
22 Code, §§ 2079.13–2019.25; Bus. & Prof. Code, § 10131 et seq.)
23 III. LAW AND ARGUMENT
24 California excludes “expert opinions on issues of law.” (Summers v. A. L. Gilbert Co.
25 (1999) 69 Cal.App.4th 1155, 1181.) This is because “it is for the judge, not the lawyers or the
26 witnesses, to inform the jury of the law applicable in the case and to decide any purely legal
27 issue. [Citation.]” (Id. at p. 1182.) On the other hand, “[e]ven if an expert’s opinion does not
28 go to a question of law, it is not admissible if it invades the province of the jury to decide a
{3138861.DOCX;} 3 Plaintiffs’ Motion in Limine No. 6
1 case.” (Ibid.) “In other words, when an expert’s opinion amounts to nothing more than an
2 expression of his or her belief on how a case should be decided, it does not aid the jurors, it
3 supplants them.” (Id. at p. 1183.)
4 Here, Egan’s actions on behalf of Benik raise issues about her fiduciary duties to Benik.
5 “Whether a fiduciary duty exists is generally a question of law.” (Marzec v. Public Employees’
6 Retirement System (2015) 236 Cal.App.4th 889, 915.) Benik’s claims for breach of fiduciary
7 duty and negligence against Egan also raise ultimate issues as to whether Egan’s actions
8 comported with her legal duties as real estate licensee, including the laws in the Civil Code
9 and the Business & Professions Code governing agents in real estate transactions. (See, e.g.,
10 Civ. Code, §§ 2079.13–2019.25; Bus. & Prof. Code, § 10131 et seq.) The Court should
11 preclude Mr. Wallace, an attorney, from testifying about either the legal issue of whether a
tobin chediak coleman grodin
12 fiduciary duty exists or the ultimate issues of whether Egan’s actions violated her legal duties.
13 IV. CONCLUSION
14 The Court should issue an order:
15 3. Precluding Alan Wallace from testifying about legal issues, including the
16 existence of Egan’s fiduciary duties to Benik; and
LAW CORPORATION
17 4. Precluding Alan Wallace from testifying about ultimate issues, including whether
weintraub
18 Egan’s actions violated her legal duties.
19
20 Dated: April 8, 2021 Respectfully submitted,
21 W E INTRAUB TOBIN CHEDIAK COLEMAN GRODIN
Law Corporation
22
23
By:
24 Louis A. Gonzalez, Jr.
Zack S. Thompson
25
Attorneys for Plaintiffs Erik Benik,
26 Wishbone Ranch, LLC and James Heath
27
28
{3138861.DOCX;} 4 Plaintiffs’ Motion in Limine No. 6
Preview
1 Louis A. Gonzalez, Jr., State Bar No. 157373 lgonzalez@weintraub.com 2 Zack S. Thompson, State Bar No. 317110 zthompson@weintraub.com 3 weintraub tobin chediak coleman grodin LAW CORPORATION 4/8/2021 4 400 Capitol Mall, 11th Floor Sacramento, CA 95814 5 Tel: (916) 558-6000 Fax: (916) 446-1611 6 Attorneys for Plaintiffs Erik Benik, 7 Wishbone Ranch, LLC and James Heath 8 SUPERIOR COURT OF CALIFORNIA 9 IN AND FOR THE COUNTY OF BUTTE 10 11 ERIK BENIK, an individual; WISHBONE Case No. 18CV03508 RANCH, LLC, a California limited liability tobin chediak coleman grodin 12 company; and JAMES HEATH, an PLAINTIFFS’ MOTION IN LIMINE NO. 6 individual, TO PRECLUDE IMPROPER LEGAL OPTION 13 EVIDENCE FROM DEFENDANT EGAN’S Plaintiffs, STANDARD OF CARE EXPERT ALAN 14 WALLACE, ESQ. vs. 15 Trial Date: April 19, 2021 13290 CONTRACTORS LANE, LLC, a California limited liability company; Dept: 1 16 Time: 8:00 a.m. RICHARD BRINGGOLD, an individual; LAW CORPORATION and DOES 1 through 25, inclusive, Judge: Hon. Tamara L. Mosbarger 17 weintraub 18 Defendants. Complaint Filed: October 23, 2018 FAC Filed: March 15, 2019 19 SAC Filed: August 7, 2020 20 21 22 TO THE BUTTE COUNTY SUPERIOR COURT AND TO ALL PARTIES AND TO THE IR 23 ATTORNEYS OF RECORD: 24 Attorneys for Plaintiffs Erik Benik, Wishbone Ranch, LLC and James Heath (collectively, 25 “Plaintiffs”) respectfully move the Butte County Superior Court (“Court) in limine for an order: 26 1. Precluding defendants’ expert Alan Wallace, who is an attorney, from testifying 27 about legal issues or rendering a legal opinion, including the existence of Egan’s fiduciary 28 duties to Benik; and {3138861.DOCX;} 1 Plaintiffs’ Motion in Limine No. 6 1 2. Precluding attorney Alan Wallace, from testifying about ultimate issues, including 2 whether Egan’s actions violated her legal duties. 3 This motion is made on the grounds that experts are not permitted to usurp the role of 4 the Judge to inform the jury of the law applicable in the case and to decide any purely legal 5 issue. Nor are experts permitted to usurp the function of the jury to weigh the evidence and 6 draw the necessary conclusions. This motion is based upon this notice; the accompanying 7 memorandum of points and authorities; the accompanying compendium of evidence, 8 including the declaration of Louis A. Gonzalez, Jr. and the exhibits in that compendium ; any 9 supplemental memoranda of points and authorities as may hereafter be filed with the Court or 10 stated orally at the hearing; all the papers and records on file in this action; and any oral 11 and/or documentary evidence that may be presented at the hearing. tobin chediak coleman grodin 12 13 Dated: April 8, 2021 Respectfully submitted, 14 W E INTRAUB TOBIN CHEDIAK COLEMAN GRODIN Law Corporation 15 16 LAW CORPORATION By: 17 Louis A. Gonzalez, Jr. weintraub Zack S. Thompson 18 Attorneys for Plaintiffs Erik Benik, Wishbone Ranch, LLC and James Heath 19 20 21 22 23 24 25 26 27 28 {3138861.DOCX;} 2 Plaintiffs’ Motion in Limine No. 6 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 Experts are not permitted to usurp the role of the judge to inform the jury of the law 4 applicable in the case and to decide any purely legal issue. Nor are experts permitted to usurp 5 the function of the jury to weigh the evidence and draw the necessary conclusions. Accordingly, 6 the Court should preclude Defendants’ expert Alan Wallace, an attorney, from offering any 7 opinions on ultimate issues of law, including whether laws did or did not apply to defendant 8 Kathryn Egan and how those laws apply to her conduct. 9 II. PERTINENT FACTS 10 Defendant Kathryn Egan admits that she prepared the first and second lease between 11 Benik and the Landlord Defendants “as directed by Mr. Bringgold and Mr. Benik.” (Exh. B tobin chediak coleman grodin 12 (“Egan Depo.”) at 37:2–5, 73:20–22; see Exhs. A, F, H.) She also admits that she met with 13 Mr. Benik “[t]o discuss the possibility of a lease option” for the Property because “he might be 14 interested in moving [his business] over there” because she had heard that he needed more 15 space. (Egan Depo. at 24:13–25:12.) She took what she learned from both Benik and 16 Bringgold at this meeting and prepared the first lease. (Egan Depo. at 28:22–29:2, 36:9–11, LAW CORPORATION 17 37:2–5.) She also participated in the negotiations for the second lease, in order to prepare its weintraub 18 terms. (Egan Depo. at 73:20–75:6.) 19 These circumstances raise complicated issues of Egan’s role as an agent and her 20 compliance with the laws in the Civil Code and the Business & Professions Code governing 21 agents in real estate transactions, including leases and purchase options. (See, e.g., Civ. 22 Code, §§ 2079.13–2019.25; Bus. & Prof. Code, § 10131 et seq.) 23 III. LAW AND ARGUMENT 24 California excludes “expert opinions on issues of law.” (Summers v. A. L. Gilbert Co. 25 (1999) 69 Cal.App.4th 1155, 1181.) This is because “it is for the judge, not the lawyers or the 26 witnesses, to inform the jury of the law applicable in the case and to decide any purely legal 27 issue. [Citation.]” (Id. at p. 1182.) On the other hand, “[e]ven if an expert’s opinion does not 28 go to a question of law, it is not admissible if it invades the province of the jury to decide a {3138861.DOCX;} 3 Plaintiffs’ Motion in Limine No. 6 1 case.” (Ibid.) “In other words, when an expert’s opinion amounts to nothing more than an 2 expression of his or her belief on how a case should be decided, it does not aid the jurors, it 3 supplants them.” (Id. at p. 1183.) 4 Here, Egan’s actions on behalf of Benik raise issues about her fiduciary duties to Benik. 5 “Whether a fiduciary duty exists is generally a question of law.” (Marzec v. Public Employees’ 6 Retirement System (2015) 236 Cal.App.4th 889, 915.) Benik’s claims for breach of fiduciary 7 duty and negligence against Egan also raise ultimate issues as to whether Egan’s actions 8 comported with her legal duties as real estate licensee, including the laws in the Civil Code 9 and the Business & Professions Code governing agents in real estate transactions. (See, e.g., 10 Civ. Code, §§ 2079.13–2019.25; Bus. & Prof. Code, § 10131 et seq.) The Court should 11 preclude Mr. Wallace, an attorney, from testifying about either the legal issue of whether a tobin chediak coleman grodin 12 fiduciary duty exists or the ultimate issues of whether Egan’s actions violated her legal duties. 13 IV. CONCLUSION 14 The Court should issue an order: 15 3. Precluding Alan Wallace from testifying about legal issues, including the 16 existence of Egan’s fiduciary duties to Benik; and LAW CORPORATION 17 4. Precluding Alan Wallace from testifying about ultimate issues, including whether weintraub 18 Egan’s actions violated her legal duties. 19 20 Dated: April 8, 2021 Respectfully submitted, 21 W E INTRAUB TOBIN CHEDIAK COLEMAN GRODIN Law Corporation 22 23 By: 24 Louis A. Gonzalez, Jr. Zack S. Thompson 25 Attorneys for Plaintiffs Erik Benik, 26 Wishbone Ranch, LLC and James Heath 27 28 {3138861.DOCX;} 4 Plaintiffs’ Motion in Limine No. 6