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  • Axis Homeowners Association v. Almaden Tower Venture, LLC, et al. Other Petition (Not Spec) Unlimited (43)  document preview
  • Axis Homeowners Association v. Almaden Tower Venture, LLC, et al. Other Petition (Not Spec) Unlimited (43)  document preview
  • Axis Homeowners Association v. Almaden Tower Venture, LLC, et al. Other Petition (Not Spec) Unlimited (43)  document preview
  • Axis Homeowners Association v. Almaden Tower Venture, LLC, et al. Other Petition (Not Spec) Unlimited (43)  document preview
  • Axis Homeowners Association v. Almaden Tower Venture, LLC, et al. Other Petition (Not Spec) Unlimited (43)  document preview
  • Axis Homeowners Association v. Almaden Tower Venture, LLC, et al. Other Petition (Not Spec) Unlimited (43)  document preview
  • Axis Homeowners Association v. Almaden Tower Venture, LLC, et al. Other Petition (Not Spec) Unlimited (43)  document preview
  • Axis Homeowners Association v. Almaden Tower Venture, LLC, et al. Other Petition (Not Spec) Unlimited (43)  document preview
						
                                

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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 10 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 16 Defendants. Hearing Date: April 16, 2021 17 Trial Date: May 12, 2021 18 19 Complaint Filed: December 18, 2017 AND RELATED CROSS-ACTIONS. 20 21 22 23 24 25 26 27 28 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: 28 -1- 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 28 -2- 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 19 20 By /s/Eric J. Nystrom DWIGHT C. DONOVAN 21 ERIC J. NYSTROM 22 Attorneys for Cross-Defendant Viracon, Inc. 23 24 25 26 27 28 -3- REPLY IN SUPPORT OF VIRACON, INC.’S MOTION IN LIMINE TO EXCLUDE THE DALLAS LABS REPORTS 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 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 24 25 26 27 28 PROOF OF SERVICE 163674\00016\113242332.V1