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170V314037
Santa Clara — Civil
DWIGHT C. DONOVAN (SBN 114785) Electronically Filed
ddonovan@foxrothschild.com
ERIC J. NYSTROM (Pro Hac Vice) by Superior Court of CA,
enystrom@foxrothschild.com County of Santa Clara,
FOX ROTHSCHILD LLP on 4/8/2021 10:13 AM
345 California Street, Suite 2200 Reviewed By: R. Walker
San Francisco, California 94104 Case #17CV314037
Telephone: 415-364-5540 Envelope: 6199960
Facsimile: 415-391-4436
Attorneys for Cross-Defendant
Viracon, Inc.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
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11 AXIS HOMEOWNERS ASSOCIATION, a Case No. 17CV314037
California non-profit mutual benefit
12 corporation, ASSIGNED FOR ALL PURPOSES TO THE HONORABLE
ROBERTA S. HAYASHI, DEPT. 10 (COMPLEX CIVIL
13, Plaintiff, LITIGATION)
14 Vv. REPLY IN SUPPORT OF VIRACON,
INC.’S MOTION IN LIMINE TO
15 ALMADEN TOWER VENTURE, LLC, a EXCLUDE THE DALLAS LABS
California limited liability company, et al., REPORTS
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Defendants. Hearing Date: April 16, 2021
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Trial Date: May 12, 2021
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19 Complaint Filed: December 18, 2017
AND RELATED CROSS-ACTIONS.
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REPLY IN SUPPORT OF VIRACON, INC.’S MOTION IN LIMINE TO EXCLUDE THE DALLAS LABS
REPORTS
INTRODUCTION
Cross-Complainants’ Opposition conflates the hearsay rule with other, evidentiary
doctrines: foundation, relevance, and privilege. These doctrines are not hearsay
exceptions, however, and cannot cure a hearsay problem. Cross-Complaints implicitly
acknowledge that the Dallas Labs reports are case-specfic out of court statements that
they wish to offer for their truth. The Dallas Labs reports are hearsay to which no
exception applies.
ARGUMENT
Hearsay is an out-of-court statement offered in court to prove the truth of the
10 matter asserted therein. Cal. Evid. Code § 1200(a). Hearsay is inadmissible unless an
11 exception applies. Id. §1200(b). The proponent of the evidence has the burden of
12 establishing its admissibility under an exception to the hearsay rule. Id.
13, A, The Dallas Labs Reports Are Inadmissible Hearsay.
14 Cross-Complainants do not dispute that the Dallas Labs reports consist of out-of-
15 court statements offered for the truth of the matter they assert: the cause of the spotting
16 on the IGUs that was discovered in 2019. Contrary to Cross-Complainants’ assertions,
17 California law does not differ from federal law or the law of other states on the issue of
18 whether expert reports are hearsay. They are. See 1 Witkin, Cal. Evid. 5th, Hearsay § 12
19 (2020) (“Formal writings and reports, unless made by competent evidence by one of the
20 exceptions to the rule, are inadmissible hearsay.”); The Rutter Group, Cal. Prac. Guide
21 Civ. Trials & Evid., Ch. 8D-A (“The fact the hearsay declarant is present at trial and
22 available for cross-examination does not make his or her extrajudicial statement
23 admissible for its truth.”).
24 B Adequate Foundation Does Not Render Hearsay Admissible.
25 Cross-Complainants’ suggestion that an expert’s written report may be admitted
26 if the expert testifies and thus provides foundation is simply incorrect. A hearsay
27 exception still must apply:
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REPLY IN SUPPORT OF VIRACON, INC.’S MOTION IN LIMINE TO EXCLUDE THE DALLAS LABS
REPORTS
[Llike any other hearsay evidence, case-specific hearsay an expert relates
to the jury as true is not admissible unless a roper foundation has been
he
laid for its admission under an applicable e arsay exception.
People v. Yates, 25 Cal. App. 5" 474, 483 (Cal. Ct. App. 2018) (emphasis added); see also
Stockinger v. Feather River Community College, 111 Cal. App. 4 1014, 1027
(“[AJuthentication alone does not overcome other rules of evidence, such as the hearsay
tule. There is a difference between the foundational device of authentication and
substantive rules of admissibility of evidence, such as the hearsay rule.””); People v.
Rodriguez, 274 Cal. App. 2d 770, 777 (Cal. Ct. App. 1969) (“[I]f a hearsay objection is
properly made, the burden shifts to the party offering the hearsay to lay a proper
10 foundation for its admissibility under an exception to the hearsay rule.”)
11 (emphasis added).
12 Cc Hearsay Is Not Admissible Under Evidence Code Section 352.
13, Cross-Complainants’ argument that hearsay may be admitted under Evidence
14 Code section 352 is illogical. First, section 352 is an exclusionary rule that allows a court
15 to exclude evidence that is overly prejudicial. See Cal. Code Evid. § 352. It does not
16 provide a basis, as Cross-Complainants contend, for a Court to admit evidence on the
17 basis that excluding it will be prejudicial.
18 Cross-Complainants’ argument that the Dallas Labs Reports should be admitted
19 because they are reliable and Cross-Complainants have no other way of obtaining the
20 statements within them seemingly invokes the so-called “residual exception” to the
21 hearsay rule that some jurisdictions recognize. See, e.g., Fed. R. Evid. 807. But
22 “California, unlike federal courst and some state jurisdictions, does not have a ‘residual
23 hearsay’ exception that permits any hearsay statement into evidence as long as it bears
24 sufficient indicia of reliability.” In re Cindy L., 17 Cal. 4 15, 27-28 (Cal. 1997).
25 D Hearsay Impeachment Evidence Is Still Hearsay.
26 The impeachment value of the Dallas Labs Reports does not make them
27 admissible. Cross-Complainants’ arguments concerning “good cause” for the discovery
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REPLY IN SUPPORT OF VIRACON, INC.’S MOTION IN LIMINE TO EXCLUDE THE DALLAS LABS
REPORTS
of otherwise-privileged expert reports are completely off point. Discovery concerns the
production of documents to opposing counsel, not the admission of documents as
evidence at trial. And no one disputes that Cross-Complainants were provided each
version of the Dallas Labs Report in discovery.
In any event, Viracon’s motion does not challenge Cross-Complainants’ ability to
attempt to use the Dallas Labs Reports to impeach Mr. Jones upon cross-examination.
Viracon’s motion is targeted toward what Cross-Complainants actually seek to do with
the Dallas Labs Reports, which is admit them into evidence (and have their experts
recite them) in support of their own case. The Dallas Labs Reports could potentially be
10 subject to limited admissibility as impeachment evidence, depending upon the content
11 and context of Mr. Jones’s testimony. But even then, they would be admissible strictly
12 for impeachment and not for the truth of the matters they assert.
13, CONCLUSION
14 For these reasons, Viracon respectfully requests that this Court issue an Order
15 excluding the Dallas Labs reports from evidence at trial.
16 Dated: April 8, 2021
17 Respectfully submitted,
18 FOX ROTHSCHILD Lip
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20 By /s/Eric J. Nystrom
DWIGHT C. DONOVAN
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ERIC J. NYSTROM
22 Attorneys for Cross-Defendant Viracon, Inc.
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163674\00016\121307918.v1
PROOF OF SERVICE
Tam over the age of eighteen years of age, not a party to this action, and
employed in the City and County of San Francisco at the law offices of Fox Rothschild
LLP, 345 California Street, Suite 2200, San Francisco, California 94104. My email ser-
vice address is evanmatre@foxrothschild.com
On April 8, 2021, I served the attached Reply in Support of Viracon's Motion in
Limine to Exclude the Dallas Labs Reports by causing a copy to be served by electronic
means on opposing counsel at the electronic service address as last given, on the at-
tached Service List.
10 I declare under penalty of perjury under the laws of the State of California that the
11 foregoing is true and correct and that this declaration was executed on April 8, 2021 at
12 San Francisco, California.
13,
Cheep ype ener _
14 Eileen Van Matre
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PROOF OF SERVICE
163674\00016\113242332.V1
Axis HOA y. Almaden Tower Venture, LLC, and Webcor Construction LP, et al.
Santa Clara County Superior Court Case No, 17CV314037
SERVICE LIST
Sandy M. Kaplan, Esq. Jon B. Zimmerman, Esq.
Lisa Schlittner, Esq. Gregory B. Cohen, Esq. /
GORDON REES SCULLY Matthew J. Wendt, Esq.
MANSUKHANI, LLP April Kitagawa, Esq.
275 Battery Street, Suite 2000 MESSNER REEVES LLP
San Francisco, CA 94111 160 W. Santa Clara Street, Suite 1000
Tel: 415-986-5900 | Fax: 415-986-8054 San Jose, CA 95113
skaplan@grsm.com 408-298-7120 | Fax: 408-298-0477
Ischlittner@grsm.com jzimmerman@messner.com
Assistant: James Van de Carr gcohen@messner.com
10 jvandecarr@grsm.com mwendt@me: ner.com
jtimbol@messner.com
11 Attorneys for Defendants/Cross-Complainants, akitagawa@messner.com
ALMADEN TOWER VENTURE, LLC, and Attorneys for Cross-Defendants/Cross-
12 WEBCOR CONSTRUCTION LP, dba WEBCOR Complainants, CENTRAL CONCRETE
BUILDERS (survivor to a merger with WEBCOR SUPPLY CO., INC.
13, CONSTRUCTION, INC.)
Charles M. Litt, Esq./John J. Stander, Esq./Michael Diana M. Dron, Esq.
14 Rubino, Esq. J. Michael Grimm, Esq.
FENTON GRANT MAYFIELD KANEDA & LITT MONTELEONE & McCRORY, LLP
15 LLP 725 South Figueroa Street, Suite 3200
1255 Treat Boulevard, Suite 805 Los Angeles, CA 90017
16 Walnut Creek, California 94597 213-612-9900 | Fax: 213-612-9930
Tel: (925) 357-3135 dron@mmlawyers.com
17 charleslitt@fentongrant.com grimm@mmlawyers.com
jstander@fentongrant.com Attorneys for Cross-Defendant, GLACIER
18 mrubino@fentongrant.com NORTHWEST, INC.
Attorneys for Plaintiff, AXIS HOMEOWNERS
19 ASSOCIATION
Veronika J. Zappelli, Esq. Albert P. Blake, Jr.
20 LAW OFFICES OF ADRIENNE D. COHEN ISERT-KOTT & ASSOCIATES
7250 Redwood Boulevard, Suite 300 1200 Concord Avenue, Suite 190B
21 Novato, California 94594 Concord, California 94520
415-761-8655/FAX: 415-329-2448 925-68 1-3600/Fax: 866-386-1186
22 jz@adcohen.com albert.blake@aig.com
23 Attorneys for Cross-Defendant ACCO ENGI- Attorneys for Cross-Defendant BAY AREA
NEERED SYSTEMS, INC. REINFORCING
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PROOF OF SERVICE
163674\00016\113242332.V1