Preview
oO 8B WN
170V314037
Santa Clara — Civil
Electronically Filed
LAW OFFICES .
MONTELEONE & McCRORY, LLP by Superior Court of CA,
725 South Figueroa Street, Suite 3200 County of Santa Clara,
Los Angeles, California 90017 on 4/8/2021 11:47 AM
Tel: (213) 612-9900 Fax: (213) 612-9930 Reviewed By: R. Walker
DIANA M. DRON (SBN 86195) case # roe ea
J. MICHAEL GRIMM (SBN 295224) eae
Attorneys for Defendant,
Glacier Northwest, Inc.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA CLARA
AXIS HOMEOWNERS ASSOCIATION, a
California non-profit mutual benefit
corporation,
Case No. 17CV314037
Assigned for All Purposes to:
Hon. Robert S. Hayashi, Dept. 10
Pain CROSS-DEFENDANT GLACIER
NORTHWEST, INC.’S REPLY TO
PLAINTIFF AXIS HOMEOWNERS
ASSOCIATION’S OPPOSITION TO
DEFENDANT GLACIER NORTHWEST,
INC.’S OBJECTION AND MOTION IN
LIMINE NO. 1 TO EXCLUDE DANIEL
CHUDNOVSKY’S TESTIMONY ON
WATER INTRUSION INTO THE
ELEVATOR PIT, THE SOURCE OF ANY
WATER INTRUSION, THE CONDITION
OF THE ELEVATOR EQUIPMENT
SUBSEQUENT TO HIS 2015
INVESTIGATION, AND LIMIT
TESTIMONY TO WHAT WAS
OBSERVED BY DANIEL CHUDNOVSKY
AT HIS PHYSICAL INSPECTION IN 2015)
DECLARATION OF DIANA M. DRON
Vv.
ALMADEN TOWER VENTURE, LLC, a
California limited liability company;
WEBCOR BUILDERS, INC., a California
corporation; and DOES 1 through 400
inclusive,
Defendants,
Hearing Date: April 16, 2021
Time: 9:00 a.m.
Dept.: 10
AND ALL RELATED CROSS-ACTIONS
eS §s a aSaEaSEaSaaEamREaeEa=EE=E=E=eEEe=PE=EpE=S>E™™m™OOOS
TO THE HONORABLE COURT, TO ALL PARTIES AND TO THEIR
ATTORNEYS OF RECORD:
Mit
1
CROSS-DEFENDANT GLACIER NORTHWEST, INC.’S REPLY TO PLAINTIFF AXIS HOMEOWNERS
ASSOCIATION’S OBJECTION AND OPPOSITION TO DEFENDANT GLACIER NORTHWEST, INC.’S MOTION.
IN LIMINE NO. 1 TO EXCLUDE DANIEL CHUDNOVSKY’S TESTIMONY ON WATER INTRUSION INTO THE
ELEVATOR PIT, THE SOURCE OF ANY WATER INTRUSION, THE CONDITION OF THE ELEVATOR
EQUIPMENT SUBSEQUENT TO HIS 2015 INVESTIGATION, AND LIMIT TESTIMONY TO WHAT WAS
OBSERVED BY DANIEL CHUDNOVSKY AT HIS PHYSICAL INSPECTION IN 2015oO 8B WN
Contrary to plaintiff's argument (Opposition, 5:28 -6:3), Glacier does not request that
Daniel Chudnovsky (“Chudnovsky”) be precluded from stating any opinions about the elevator
pits. Glacier is asking that Chudnovsky’s testimony be limited to his actual observations of the
condition of the elevator pits and the elevator equipment, made in 2015. There is no question
that Chudnovsky is entitled to state his opinions based on what he saw in 2015 on the conditions
that existed in 2015. What Glacier is objecting to is all of the speculation that occurs in
Chudnovsky’s opinions subsequent to 2015, such as the elevators becoming an endangerment
despite his testimony that the elevator company is inspecting the elevators every quarter.
1. CHUDNOVSKY’S EXPERT OPINION MAY NOT BE BASED ON
ASSUMPTIONS OF FACT WITHOUT EVIDENTIARY SUPPORT
OR, ON SPECULATIVE OR CONJECTURAL FACTORS,
Plaintiff argues that the proper bases for an expert’s opinion are set forth in
Evidence Code §801. (Opposition, 3:21-3:28.) Section 801(b) states in pertinent part:
“Based on matter (including his special knowledge, skill, experience, training,
and education) perceived by or personally known to the witness or made known
to him at or before the hearing, whether or not admissible, that is of a type that
reasonably may be relied upon by an expert in forming an opinion upon the
subject to which his testimony relates, unless an expert is precluded by law from
using such matter as a basis for his opinion.” (Emphasis added.)
The problem is that Chudnovsky does not have the knowledge to provide opinions on
the current condition of the elevator pit or the elevator equipment as of today. Contrary to the
argument of plaintiff, just because he knows that the subterranean garage walls are leaking
(because he can see them today) does not mean that currently there is water leaking into the
elevator pit. The elevator pit is not next to one of the leaking exterior walls. (Dron Reply
Declaration, §4, Ex. 552 to Chudnovsky Deposition Session 11.) Moreover, Chudnovsky does
not have the perception or knowledge of the current conditions of the elevator pit and elevator
equipment or even the condition two year ago. He only has knowledge of what the conditions
2
CROSS-DEFENDANT GLACIER NORTHWEST, INC.’S REPLY TO PLAINTIFF AXIS HOMEOWNERS
ASSOCIATION’S OBJECTION AND OPPOSITION TO DEFENDANT GLACIER NORTHWEST, INC.’S MOTION.
IN LIMINE NO. 1 TO EXCLUDE DANIEL CHUDNOVSKY’S TESTIMONY ON WATER INTRUSION INTO THE
ELEVATOR PIT, THE SOURCE OF ANY WATER INTRUSION, THE CONDITION OF THE ELEVATOR
EQUIPMENT SUBSEQUENT TO HIS 2015 INVESTIGATION, AND LIMIT TESTIMONY TO WHAT WAS
OBSERVED BY DANIEL CHUDNOVSKY AT HIS PHYSICAL INSPECTION IN 2015oO 8B WN
were in 2015. He does not know if there is still water in the elevator pit, if there has been water
in the elevator pit at any time during the last 6 years, or how much water, if any, the elevator
equipment has been exposed to over the last 6 years. The water he saw may have been a one-
time event because Chudnovsky does not know the source of that water.
Plaintiff is correct that the California Supreme Court discussed the gatekeeper role of the
trial court. In Sargon Enterprises, Inc. v. University of Southern California, 55 Cal.4th 747, 770,
149 Cal.Rptr.3d 614, 630-631 (2012). However, plaintiff ignored the first part of the discussion
where the court cited to the Lockheed Litigation Cases:
“In Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 563 [10 Cal.Rptr.3d
34], the plaintiffs argued that under Evidence Code section 801, subdivision (b),
“a court should determine only whether the type of matter that an expert relies on
in forming his or her opinion is the type of matter that an expert reasonably can
rely on in forming an opinion, without regard to whether the matter relied on
reasonably does support the particular opinion offered.’ The Court of Appeal
disagreed. ‘An expert opinion has no value if its basis is unsound. [Citations.]
Matter that provides a reasonable basis for one opinion does not necessarily
provide a 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 a type that an expert reasonably can rely on “in forming an
opinion upon the subject to which his testimony relates.” (Italics added.) We
construe this to mean that the matter relied on must provide a reasonable basis
for the particular opinion offered, and that an expert opinion based on
speculation or conjecture is inadmissible.’ (Lockheed Litigation Cases, supra, at
p. 564, 10 Cal.Rptr.3d 34.)” (Emphasis added.)
“We agree with this analysis. Indeed, as the Court of Appeal in that case also
noted (Lockheed Litigation Cases, supra, 115 Cal.App.4th at p. 564, 10
Cal.Rptr.3d 34), the California Law Revision Commission comments to
Evidence Code section 801 explained that “under existing law, irrelevant or
3
CROSS-DEFENDANT GLACIER NORTHWEST, INC.’S REPLY TO PLAINTIFF AXIS HOMEOWNERS
ASSOCIATION’S OBJECTION AND OPPOSITION TO DEFENDANT GLACIER NORTHWEST, INC.’S MOTION.
IN LIMINE NO. 1 TO EXCLUDE DANIEL CHUDNOVSKY’S TESTIMONY ON WATER INTRUSION INTO THE
ELEVATOR PIT, THE SOURCE OF ANY WATER INTRUSION, THE CONDITION OF THE ELEVATOR
EQUIPMENT SUBSEQUENT TO HIS 2015 INVESTIGATION, AND LIMIT TESTIMONY TO WHAT WAS
OBSERVED BY DANIEL CHUDNOVSKY AT HIS PHYSICAL INSPECTION IN 2015oO 8B WN
speculative matters are not a proper basis for an expert's opinion. .. . Thus,
under Evidence Code section 801, the trial court acts as a gatekeeper to exclude
speculative or irrelevant expert opinion. As we recently explained, “/T/he
expert's opinion may not be based ‘on assumptions of fact without evidentiary
support [citation], or on speculative or conjectural factors... [J] Exclusion of
expert opinions that rest on guess, surmise or conjecture [citation] is an inherent
corollary to the foundational predicate for admission of the expert testimony:
will the testimony assist the trier of fact to evaluate the issues it must decide?’
(Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th
1108, 1117 [8 Cal.Rptr.3d 363].)” (People v. Richardson (2008) 43 Cal.4th 959,
1008 [77 Cal.Rptr.3d 163, 183 P.3d 1146]; accord, People v. Moore (2011) 51
Cal.4th 386, 405 [121 Cal.Rptr.3d 280, 247 P.3d 515].)” (Emphasis added.)
Glacier is requesting that this Court exclude testimony that is unreliable expert
opinion based on conjecture.
2. THE POINT OF THE CASES CITED BY GLACIER IS THAT THE
MATTER RELIED UPON MUST PROVIDE A REASONABLE
BASIS FOR THE OPINION OFFERED. SPECULATION AND
CONJECTURE ARE NOT A REASONABLE BASIS FOR AN
EXPERT OPINION.
Plaintiff contends that Glacier’s cases are not applicable because they do not deal with
excluding an expert opinion where “...the factual basis underlying the opinion was the expert's
personal observation made several years before his trial testimony.” (Opposition, 7:5-7:10.)
However, plaintiffs cases do not deal with that fact set either. In fact, plaintiff cited to Douglas
v. Ostermeier (1991) 1 Cal.App.4th 729, 739 which deals with a biased witness. Glacier does
not contend that Chudnovsky is biased on the elevator pit issue. He just lacks sufficient factual
information to opine on the condition of the pit as of 2021.
Mit
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CROSS-DEFENDANT GLACIER NORTHWEST, INC.’S REPLY TO PLAINTIFF AXIS HOMEOWNERS
ASSOCIATION’S OBJECTION AND OPPOSITION TO DEFENDANT GLACIER NORTHWEST, INC.’S MOTION.
IN LIMINE NO. 1 TO EXCLUDE DANIEL CHUDNOVSKY’S TESTIMONY ON WATER INTRUSION INTO THE
ELEVATOR PIT, THE SOURCE OF ANY WATER INTRUSION, THE CONDITION OF THE ELEVATOR
EQUIPMENT SUBSEQUENT TO HIS 2015 INVESTIGATION, AND LIMIT TESTIMONY TO WHAT WAS
OBSERVED BY DANIEL CHUDNOVSKY AT HIS PHYSICAL INSPECTION IN 2015oO 8B WN
In Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co. (1996) 47 Cal.App.4th 464,
489-490, also cited by plaintiff, the issue was the calculation of lost profits due to St. Paul’s
breach of a collateral agreement entered into for Arntz to obtain bonding. The court ruled that
St. Paul’s proposed rule that lost profits could only be based on bids Arntz could not submit due
to the lack of bonding capacity was a senseless waste of time.
People v. Brekke (1967) 250 Cal.App.2d 651, 661-662 was a criminal case involving the
mental competency of Brekke. The doctor based his opinion on a medical report by another
doctor and other data provided to him. In People v. Fulcher (2006) 136 Cal.App.4th 41, 54, the
defendant failed to object to testimony that he had used force during a sexual assault and the
careless review of records by the expert. In Sinaiko v. Superior Court (2004) 122 Cal.App.4th
1133, 1142, the issue was a medical expert’s opinion. And the list goes on.
The point is that regardless of the type of case the expert opinion is for, the matter
relied upon must provide a reasonable basis for the opinion offered. In Howard Entertainment,
Inc. v. Kudrow (2012) 208 Cal.App.4th 1102, 1121, also cited by plaintiff, the court said: “So
long as foundational reliability is met, the strength of an expert's assumptions affects the
weight rather than the admissibility of the opinion.” Glacier contends that Chudnovsky’s
testimony with regard to what he thinks may be the condition of the elevator pit is too
speculative to be admitted into evidence. He should have knowledge on the conditions to be
able to opine on the condition of the pit and equipment, otherwise he is merely speculating.
Glacier cited to Smith v. ACandS, Inc. (1994) 31 Cal.App4"" 77, 93 regarding the
court’s discussion of an expert’s attempt to extrapolate the conditions of a work site by looking
at a photograph. And, the court determined that relying on old black and white photographs
was highly suspect and combined with other errors, was prejudicial. The point of the citation
was the court’s citation to Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 338, 145
Cal.Rptr. 47 and was twofold: (1) Chudnovsky is extrapolating part of his opinions in reliance
on photographs taken in 2015; and (2) the Hyatt court held that “An expert’s testimony must be
based on matters upon which he may reasonably rely. (Evid. Code § 801.) Conjecture and
Mit
5
CROSS-DEFENDANT GLACIER NORTHWEST, INC.’S REPLY TO PLAINTIFF AXIS HOMEOWNERS
ASSOCIATION’S OBJECTION AND OPPOSITION TO DEFENDANT GLACIER NORTHWEST, INC.’S MOTION.
IN LIMINE NO. 1 TO EXCLUDE DANIEL CHUDNOVSKY’S TESTIMONY ON WATER INTRUSION INTO THE
ELEVATOR PIT, THE SOURCE OF ANY WATER INTRUSION, THE CONDITION OF THE ELEVATOR
EQUIPMENT SUBSEQUENT TO HIS 2015 INVESTIGATION, AND LIMIT TESTIMONY TO WHAT WAS
OBSERVED BY DANIEL CHUDNOVSKY AT HIS PHYSICAL INSPECTION IN 2015oO 8B WN
speculation provide no proper basis for an expert’s opinion.” This should be the rule no matter
what the expert testimony pertains to. The Hyatt court continued:
“As the court pointed out ‘even an expert witness cannot be permitted just to
testify in a vacuum by [sic] things that he might think could have happened.””
“Tt is apparent that the defendant's proffered evidence would have been
speculative, conjectural and remote in nature and could very well have confused
the jury. (Culpepper v. Volkswagen of America, Inc., supra., 33 Cal.App.3d 510.)
Therefore the court properly rejected such speculation, and defendant's case
proceeded. ...” (Hyatt, supra at p.338.)
This quotation from Hyatt is particularly apropos to this case, as Chudnovsky is testifying on
what he thinks could have happened in the elevator pit, to the elevator equipment, over the past
6 years, based only on what he saw 6 years ago, based in part on his photographs from 2015.
Finally, the Hyatt court stated: “It is well settled that an expert's assumption of facts contrary to
the proof destroys the opinion. (Winthrop v. Industrial Acc. Com. (1931) 213 Cal. 351, 354-355
[2 P.2d 142].)...” (Hyatt, Id..) Glacier contends that Chudnovsky is assuming facts on the
current condition of the elevator pit and elevator equipment.
Evidence Code section 801 requires that any opinion of an expert be based upon matter
that is of the type that reasonably may be relied upon. This court has the discretion and the
power to exclude Chudnovky’s opinion on the current condition of the elevator pit and elevator
equipment as well as any opinion on their condition subsequent to 2015. As stated in Evidence
Code §352, the probative value of Chudnovsky’s testimony is substantially outweighed by the
probability that its admission will create substantial danger of undue prejudice, confuse the
issues or mislead the jury. Chudnovsky cannot testify to a foundation of facts that will support
his opinions on what he believes is the current condition of the elevator pit and equipment.
Mf
Mit
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CROSS-DEFENDANT GLACIER NORTHWEST, INC.’S REPLY TO PLAINTIFF AXIS HOMEOWNERS
ASSOCIATION’S OBJECTION AND OPPOSITION TO DEFENDANT GLACIER NORTHWEST, INC.’S MOTION.
IN LIMINE NO. 1 TO EXCLUDE DANIEL CHUDNOVSKY’S TESTIMONY ON WATER INTRUSION INTO THE
ELEVATOR PIT, THE SOURCE OF ANY WATER INTRUSION, THE CONDITION OF THE ELEVATOR
EQUIPMENT SUBSEQUENT TO HIS 2015 INVESTIGATION, AND LIMIT TESTIMONY TO WHAT WAS
OBSERVED BY DANIEL CHUDNOVSKY AT HIS PHYSICAL INSPECTION IN 2015oO 8B WN
3. CHUDNOVSKY WAS ALREADY CROSS-EXAMINED BY OPPOSING
PARTIES DURING HIS DEPOSITION AND IT IS CLEAR THAT HE IS
LACKING IN THE TYPE OF FACTUAL INFORMATION NECESSARY
TO PROVIDE A SOUND FOUNDATION FOR HIS OPINION.
During the eleventh and final session of Chudnovsky’s deposition, he was cross-
examined by counsel for Webcor, Glacier, Central, and others and it is the results of that cross-
examination that is the basis for this motion. Chudnovsky testified that there was water in the
elevator pit in 2015. However, on cross-examination, he admitted that he did not know the
source of that water. Since he has not seen the elevator pit since 2015, and has not spoken with
the personnel who serviced the elevator over the past 6 years, he does not have the ability to
testify that there is still water in the elevator pit, that there has been water in the elevator pit at
any time during the last 6 years, or how much water, if any, the elevator equipment has been
exposed to over the last 6 years. For him to provide any such opinion would be pure
speculation. For all we know, the water in the elevator pit could have been a one-time event
because Chudnovsky does not know the source of that water in 2015.
Further, Chudnovsky did not bother to ask the elevator maintenance company if they
thought the rusting of the elevator equipment was hazardous:
“Q. We'll get to those in a moment, but in the elevator pit -- have you had any
conversations with the elevator maintenance company where they told you that
this rusting condition, in their opinion, poses some type of hazard or threat to the
operation of the elevator?
A. I didn't engage in that kind of conversation with them. They opened up the pit,
they went away, we photographed it, then I told them we're finished, and they
closed it.
Q. Do you know who the elevator maintenance company is?
A. I don't.” (Dron Reply Declaration, {]4, Chudnovsky Deposition, 2154:18-
2155:05.)
Mit
7
CROSS-DEFENDANT GLACIER NORTHWEST, INC.’S REPLY TO PLAINTIFF AXIS HOMEOWNERS
ASSOCIATION’S OBJECTION AND OPPOSITION TO DEFENDANT GLACIER NORTHWEST, INC.’S MOTION.
IN LIMINE NO. 1 TO EXCLUDE DANIEL CHUDNOVSKY’S TESTIMONY ON WATER INTRUSION INTO THE
ELEVATOR PIT, THE SOURCE OF ANY WATER INTRUSION, THE CONDITION OF THE ELEVATOR
EQUIPMENT SUBSEQUENT TO HIS 2015 INVESTIGATION, AND LIMIT TESTIMONY TO WHAT WAS
OBSERVED BY DANIEL CHUDNOVSKY AT HIS PHYSICAL INSPECTION IN 2015oO 8B WN
Therefore, his testimony on the assumed current condition of the elevator equipment is pure
speculation. It is not based on any facts on the current condition of that elevator equipment. He
could have asked the elevator maintenance personnel, but he failed to do so. And, allowing
Chudnovsky to augment the foundation for his testimony after 11 deposition sessions would be
prejudicial to Glacier and the other subterranean garage-related parties.
Plaintiff also argues that Chudnovsky has sufficient observation of the subterranean
garage walls and floors along with his observations of the elevator pit to opine on its condition.
(Opposition, 5:09-5:17.) However, the leakage into the garage through the subterranean garage
walls is from the exterior perimeter of the building where the walls are exposed to the water
table. The elevator pit is not next to one of the exterior walls and is not in a location that shows
any water seepage in the B3 floor (Dron Reply Declaration, {4, Chudnovsky Deposition, Ex.
552, p.1.), so extrapolation of the condition of the walls or the B3 floor to the current condition
of the elevator pit would be conjecture at best.
4, ALLOWING CHUDNOVSKY TO TESTIFY THAT THE ELEVATORS
ARE ENDANGERMENTS IS PREJUDICIAL TO GLACIER, WEBCOR,
AND THE OTHER CROSS-DEFENDANTS RELATED TO THE
SUBTERRANEAN GARAGE ISSUES.
“A. Well, I don't think that this was an emergency five years ago. It's
going to get worse. At a certain point in time, it's going to be an endangerment.
That is something the elevator company will determine as they do their quarterly
inspections on the elevator. That's a level of responsibility there. I can tell you
that there was a point in time where we were looking at the retaining walls and
we were, you know, looking at is there an imminent danger here, and I left that
all to Panasci and your experts. I'm not dealing with that. But this is a slow-grow
defect. It definitely got worse. At a certain point, when these things break, you
can have an endangerment. Those elevators are designed to fall so far. J don't
think anyone's going to get killed by this, but this is not a safe thing to have
8
CROSS-DEFENDANT GLACIER NORTHWEST, INC.’S REPLY TO PLAINTIFF AXIS HOMEOWNERS
ASSOCIATION’S OBJECTION AND OPPOSITION TO DEFENDANT GLACIER NORTHWEST, INC.’S MOTION.
IN LIMINE NO. 1 TO EXCLUDE DANIEL CHUDNOVSKY’S TESTIMONY ON WATER INTRUSION INTO THE
ELEVATOR PIT, THE SOURCE OF ANY WATER INTRUSION, THE CONDITION OF THE ELEVATOR
EQUIPMENT SUBSEQUENT TO HIS 2015 INVESTIGATION, AND LIMIT TESTIMONY TO WHAT WAS
OBSERVED BY DANIEL CHUDNOVSKY AT HIS PHYSICAL INSPECTION IN 2015oO 8B WN
continue. This needs to be fixed.” (Chudnovsky Deposition, 2150:13 - 2151:10.)
(Emphasis added.) (Dron Motion Declaration, 48.)
How does he know that there is a slow-growth defect? How does he know that the
condition definitely got worse? He does not. Chudnovsky could have questioned the elevator
maintenance people about the condition of the elevator equipment during his inspection in 2015,
and there was nothing to prevent him from asking for information from that company in 2020 or
2021, prior to the 11" session of his expert deposition. To allow him to now bolster his
testimony with new evidence would be prejudicial to all of the subterranean garage related
parties. And without new evidence, his elevator pit testimony subsequent to 2015 is all
speculation.
5. CONCLUSION.
This is not a case of speculation on the part of Glacier. We know for sure what
Chudnovsky will opine with regard to the condition of the elevator pit and elevator equipment.
The defense cross-examined him during eleven deposition sessions and discovered, during
session eleven, exactly what his opinions are on the elevator pit and the elevator equipment, and
the lack of factual basis for those opinions. He did not bother to speak with the elevator
maintenance personnel on the site when he performed the inspection. He does not know the
name of the elevator maintenance company to ask questions of prior to his deposition. As
discovery is closed, he cannot now go back and discover what the actual conditions are. Not
only would that be improper, but it would be prejudicial to all of the subterranean garage-related
parties. Chudnovsky does not have the factual knowledge to provide a sound foundation for his
opinions on the current condition of the elevator pit and the elevator equipment. Therefore, his
opinions must be limited to the conditions in 2015 and he should be precluded from speculating
on their current condition as he did in Session 11 that he would believe that the condition has
gotten worse.
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CROSS-DEFENDANT GLACIER NORTHWEST, INC.’S REPLY TO PLAINTIFF AXIS HOMEOWNERS
ASSOCIATION’S OBJECTION AND OPPOSITION TO DEFENDANT GLACIER NORTHWEST, INC.’S MOTION.
IN LIMINE NO. 1 TO EXCLUDE DANIEL CHUDNOVSKY’S TESTIMONY ON WATER INTRUSION INTO THE
ELEVATOR PIT, THE SOURCE OF ANY WATER INTRUSION, THE CONDITION OF THE ELEVATOR
EQUIPMENT SUBSEQUENT TO HIS 2015 INVESTIGATION, AND LIMIT TESTIMONY TO WHAT WAS
OBSERVED BY DANIEL CHUDNOVSKY AT HIS PHYSICAL INSPECTION IN 2015oS
a w
Dated: April _§, 2021 MONTELEONE & McCRORY LLP
LL L&R
DIANA M. DRON
J. MICHAEL GRIMM
Attorneys for Glacier Northwest, Inc.
10
CROSS-DEFENDANT GLACIER NORTHWEST, INC.’S REPLY TO PLAINTIFF AXIS HOMEOWNERS
ASSOCIATION’S OPPOSITION TO DEFENDANT GLACIER NORTHWEST, INC.’S OBJECTION AND MOTION
IN LIMINE NO. 1 TO EXCLUDE DANIEL CHUDNOVSKY’S TESTIMONY ON WATER INTRUSION INTO THE
ELEVATOR PIT, THE SOURCE OF ANY WATER INTRUSION, THE CONDITION OF THE ELEVATOR.
EQUIPMENT SUBSEQUENT TO HIS 2015 INVESTIGATION, AND LIMIT TESTIMONY TO WHAT WASaS
DECLARATION OF DIANA M. DRON
I, DIANA M. DRON, hereby declare as follows:
Le I am an attorney at law, licensed to practice before the courts of this State, and am
a partner of the law firm of Monteleone & McCrory, LLP, attorneys of record for cross-
defendant Glacier Northwest, Inc. (“Glacier”). I am the partner who has been responsible for the
defense of Glacier since Glacier was served with Webcor’s cross-complaint.
2. This declaration is made in support of Glacier’s reply to Plaintiffs opposition to
motion in limine to exclude certain testimony of Daniel Chudnovsky (“Chudnovksy”) with
regard to the condition of the elevator pit in the subterranean garage and the cause of the alleged
damage to the elevator equipment therein, as well as the cause of the water intrusion into the pit
at any time.
3s I attended all eleven sessions of Daniel Chudnovsky’s deposition. During the
eleventh and last session of his expert deposition, on February 12, 2021, Chudnovsky made
numerous speculative statements on the condition of the elevator pit and the elevator equipment
in the pit and testified that a dangerous condition would arise with the elevator equipment even
though he had not seen the elevator pit or the elevator equipment since 2015. Those speculative
statements are the basis for this motion.
4, Attached hereto as Exhibit C is a true and correct copy of the face page, pages
2154 and 2155, and Ex. 552 to Daniel Chudnovsky’s deposition taken on February 12, 2021. As
shown in Exhibit C the elevator pit is highlighted in yellow.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed this 8th day of April, 2020 at Los Angeles, California.
(OI, be
DIANA M. DRON
1
CROSS-DEFENDANT GLACIER NORTHWEST, INC.’S REPLY TO PLAINTIFF AXIS HOMEOWNERS
ASSOCIATION’S OPPOSITION TO DEFENDANT GLACIER NORTHWEST, INC.’S OBJECTION AND MOTION
IN LIMINE NO. 1 TO EXCLUDE DANIEL CHUDNOVSKY’S TESTIMONY ON WATER INTRUSION INTO THE
ELEVATOR PIT, THE SOURCE OF ANY WATER INTRUSION, THE CONDITION OF THE ELEVATOR
EQUIPMENT SUBSEQUENT TO HIS 2015 INVESTIGATION, AND LIMIT TESTIMONY TO WHAT WAS
OBSERVED BY DANIEL CHUDNOVSKY AT HIS PHYSICAL INSPECTION IN 2015EXHIBIT CD. CHUDNOVSKY 2/12/21 AXIS HOMEOWNERS ASSOCIATION V. ALMADEN TOWER VENTURE, LLC
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
BD WN PB
AXIS HOMEOWNERS ASSOCIATION, a
California non-profit mutual
benefit corporation,
PAP eteleTa feels
vs. NOG eva 4.037,
orn Nw
ALMADEN TOWER VENTURE, LLC, a
California limited liability
9 company; WEBCOR CONSTRUCTION LP,
DBA WEBCOR BUILDERS, a
10 California corporation and DOES
1-400 inclusive,
11
Defendants.
2 /
AND RELATED CROSS-ACTIONS.
13 /
14
15
16 DEPOSITION OF DANIEL CHUDNOVSKY
ay, appearing remotely at Los Angeles, California
18 Friday, February 12, 2021
19 Volume 11 (Pages 1988 - 2257)
20
21
22
23 Reported by:
Natalie Y. Botelho
24 CSR No. 9897
25 Job No. 4381884
Page 1988
Veritext Legal Solutions
866 299-5127D. CHUDNOVSKY 2/12/21 AXIS HOMEOWNERS ASSOCIATION V. ALMADEN TOWER VENTURE, LLC
1 asking.
2 MR. KAPLAN: Let the judge decide that. I'm
3 just asking whether or not the expert who saw this
4 condition ever told you if he -- you know, that the
5 Association should do something about that.
6 MR. RUBINO: He's answered the question by
a Polling Vouloxacitly. wave ned) andidsd Nore say. | oO
8 let's move on.
9 MR. KAPLAN: We'll let the Court address this
10 one.
alle OF So the condition in these elevator pits are
12 these rusting pieces that you've identified and saw and
13 put in these exemplar photographs?
14 A. That's the -- you know, that's the problem
aS) here, is this water intrusion and result. There's also
16 the two photos down below which are part of Defect N as
17 well.
be
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Page 2154
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866 299-5127D. CHUDNOVSKY 2/12/21 AXIS HOMEOWNERS ASSOCIATION V. ALMADEN TOWER VENTURE, LLC
2
8; @ ‘Do you know who the elevator maintenance
4 company is?
e| @ ‘T don't.
6 Q. And what is your recommended repair for this
7 condition in the elevator pit?
8 A. I'd need to refresh my memory and look at my
9 repair protocol on this one, Sandy.
10 Q. Please do.
11 A. Do you know what page that's on?
12 Q. We marked it as Exhibit 560. Look at
13 | Exhibit 560. We've been talking about it all day.
14 That's your repair recommendations.
5 ae Oh, 560? Yeah, 560 is just the repair
16 recommendation.
17 Q. What we've identified today in deposition.
18 A. See, this did work for you. Me organizing
19 | this, you're like right on all these things.
20 Q. Okay.
21 A. Okay. So at the time I wrote this report, the
22 protocol was this, you know, filling in joints as they
23 wene: doing: On the perimeter wall: 860 ito a Wivetlko batt
24 left over.
25 Oe Okay. Is there anything you want to change,
Page 2155
Veritext Legal Solutions
866 299-5127FINAL DEFECTS LIST - AXIS CONDOMINIUMS, SAN JOSE - 02/07/20
8. COMMON AREA - INTERIOR AND PARKING GARAGE DEFECT!
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PARKING GARAGE - DEFECTS DIAGRAM 171A
AXIS-EXP-DCA012186
AXIS-EXP-DCA000186PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
I am employed in the County of Los Angeles, State of California. | am over the age of
18 and not a party to the within action; my business address is 725 South Figueroa Street, Suite
3200, Los Angeles, California 90017.
On April 8, 2021, I served the foregoing document described as: CROSS-
DEFENDANT GLACIER NORTHWEST, INC.’S REPLY TO PLAINTIFF AXIS
HOMEOWNERS ASSOCIATION’S OPPOSITION TO DEFENDANT GLACIER
NORTHWEST, INC.’S OBJECTION AND MOTION IN LIMINE NO. 1 TO EXCLUDE
DANIEL CHUDNOVSKY’S TESTIMONY ON WATER INTRUSION INTO THE
ELEVATOR PIT, THE SOURCE OF ANY WATER INTRUSION, THE CONDITION
OF THE ELEVATOR EQUIPMENT SUBSEQUENT TO HIS 2015 INVESTIGATION,
AND LIMIT TESTIMONY TO WHAT WAS OBSERVED BY DANIEL CHUDNOVSKY
AT HIS PHYSICAL INSPECTION IN 2015; DECLARATION OF DIANA M. DRON on
the interested parties in this action by placing [_]the original [X] a true copy thereof enclosed in
sealed envelopes as follows on the attached mailing list:
& VIA ELECTRONIC SERVICE: Complying with Code of Civil Procedure §1010.6, my
electronic business address, arellano@mmlawyers.com, | caused such document to be
electronically served through FileAndServeXpress to the parties on the Service List
maintained on the FileAndServeXpress Website for this case. The file transmission was
reported as complete and a copy of the FileAndServeXpress Receipt will be maintained
with the original document in our office.
Executed on April 8, 2021 at Los Angeles, California.
By: LW Ap AL
Mirka Arellano
PROOF OF SERVICE
Preview
oO 8B WN 170V314037 Santa Clara — Civil Electronically Filed LAW OFFICES . MONTELEONE & McCRORY, LLP by Superior Court of CA, 725 South Figueroa Street, Suite 3200 County of Santa Clara, Los Angeles, California 90017 on 4/8/2021 11:47 AM Tel: (213) 612-9900 Fax: (213) 612-9930 Reviewed By: R. Walker DIANA M. DRON (SBN 86195) case # roe ea J. MICHAEL GRIMM (SBN 295224) eae Attorneys for Defendant, Glacier Northwest, Inc. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA AXIS HOMEOWNERS ASSOCIATION, a California non-profit mutual benefit corporation, Case No. 17CV314037 Assigned for All Purposes to: Hon. Robert S. Hayashi, Dept. 10 Pain CROSS-DEFENDANT GLACIER NORTHWEST, INC.’S REPLY TO PLAINTIFF AXIS HOMEOWNERS ASSOCIATION’S OPPOSITION TO DEFENDANT GLACIER NORTHWEST, INC.’S OBJECTION AND MOTION IN LIMINE NO. 1 TO EXCLUDE DANIEL CHUDNOVSKY’S TESTIMONY ON WATER INTRUSION INTO THE ELEVATOR PIT, THE SOURCE OF ANY WATER INTRUSION, THE CONDITION OF THE ELEVATOR EQUIPMENT SUBSEQUENT TO HIS 2015 INVESTIGATION, AND LIMIT TESTIMONY TO WHAT WAS OBSERVED BY DANIEL CHUDNOVSKY AT HIS PHYSICAL INSPECTION IN 2015) DECLARATION OF DIANA M. DRON Vv. ALMADEN TOWER VENTURE, LLC, a California limited liability company; WEBCOR BUILDERS, INC., a California corporation; and DOES 1 through 400 inclusive, Defendants, Hearing Date: April 16, 2021 Time: 9:00 a.m. Dept.: 10 AND ALL RELATED CROSS-ACTIONS eS §s a aSaEaSEaSaaEamREaeEa=EE=E=E=eEEe=PE=EpE=S>E™™m™OOOS TO THE HONORABLE COURT, TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: Mit 1 CROSS-DEFENDANT GLACIER NORTHWEST, INC.’S REPLY TO PLAINTIFF AXIS HOMEOWNERS ASSOCIATION’S OBJECTION AND OPPOSITION TO DEFENDANT GLACIER NORTHWEST, INC.’S MOTION. IN LIMINE NO. 1 TO EXCLUDE DANIEL CHUDNOVSKY’S TESTIMONY ON WATER INTRUSION INTO THE ELEVATOR PIT, THE SOURCE OF ANY WATER INTRUSION, THE CONDITION OF THE ELEVATOR EQUIPMENT SUBSEQUENT TO HIS 2015 INVESTIGATION, AND LIMIT TESTIMONY TO WHAT WAS OBSERVED BY DANIEL CHUDNOVSKY AT HIS PHYSICAL INSPECTION IN 2015oO 8B WN Contrary to plaintiff's argument (Opposition, 5:28 -6:3), Glacier does not request that Daniel Chudnovsky (“Chudnovsky”) be precluded from stating any opinions about the elevator pits. Glacier is asking that Chudnovsky’s testimony be limited to his actual observations of the condition of the elevator pits and the elevator equipment, made in 2015. There is no question that Chudnovsky is entitled to state his opinions based on what he saw in 2015 on the conditions that existed in 2015. What Glacier is objecting to is all of the speculation that occurs in Chudnovsky’s opinions subsequent to 2015, such as the elevators becoming an endangerment despite his testimony that the elevator company is inspecting the elevators every quarter. 1. CHUDNOVSKY’S EXPERT OPINION MAY NOT BE BASED ON ASSUMPTIONS OF FACT WITHOUT EVIDENTIARY SUPPORT OR, ON SPECULATIVE OR CONJECTURAL FACTORS, Plaintiff argues that the proper bases for an expert’s opinion are set forth in Evidence Code §801. (Opposition, 3:21-3:28.) Section 801(b) states in pertinent part: “Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.” (Emphasis added.) The problem is that Chudnovsky does not have the knowledge to provide opinions on the current condition of the elevator pit or the elevator equipment as of today. Contrary to the argument of plaintiff, just because he knows that the subterranean garage walls are leaking (because he can see them today) does not mean that currently there is water leaking into the elevator pit. The elevator pit is not next to one of the leaking exterior walls. (Dron Reply Declaration, §4, Ex. 552 to Chudnovsky Deposition Session 11.) Moreover, Chudnovsky does not have the perception or knowledge of the current conditions of the elevator pit and elevator equipment or even the condition two year ago. He only has knowledge of what the conditions 2 CROSS-DEFENDANT GLACIER NORTHWEST, INC.’S REPLY TO PLAINTIFF AXIS HOMEOWNERS ASSOCIATION’S OBJECTION AND OPPOSITION TO DEFENDANT GLACIER NORTHWEST, INC.’S MOTION. IN LIMINE NO. 1 TO EXCLUDE DANIEL CHUDNOVSKY’S TESTIMONY ON WATER INTRUSION INTO THE ELEVATOR PIT, THE SOURCE OF ANY WATER INTRUSION, THE CONDITION OF THE ELEVATOR EQUIPMENT SUBSEQUENT TO HIS 2015 INVESTIGATION, AND LIMIT TESTIMONY TO WHAT WAS OBSERVED BY DANIEL CHUDNOVSKY AT HIS PHYSICAL INSPECTION IN 2015oO 8B WN were in 2015. He does not know if there is still water in the elevator pit, if there has been water in the elevator pit at any time during the last 6 years, or how much water, if any, the elevator equipment has been exposed to over the last 6 years. The water he saw may have been a one- time event because Chudnovsky does not know the source of that water. Plaintiff is correct that the California Supreme Court discussed the gatekeeper role of the trial court. In Sargon Enterprises, Inc. v. University of Southern California, 55 Cal.4th 747, 770, 149 Cal.Rptr.3d 614, 630-631 (2012). However, plaintiff ignored the first part of the discussion where the court cited to the Lockheed Litigation Cases: “In Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 563 [10 Cal.Rptr.3d 34], the plaintiffs argued that under Evidence Code section 801, subdivision (b), “a court should determine only whether the type of matter that an expert relies on in forming his or her opinion is the type of matter that an expert reasonably can rely on in forming an opinion, without regard to whether the matter relied on reasonably does support the particular opinion offered.’ The Court of Appeal disagreed. ‘An expert opinion has no value if its basis is unsound. [Citations.] Matter that provides a reasonable basis for one opinion does not necessarily provide a 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 a type that an expert reasonably can rely on “in forming an opinion upon the subject to which his testimony relates.” (Italics added.) We construe this to mean that the matter relied on must provide a reasonable basis for the particular opinion offered, and that an expert opinion based on speculation or conjecture is inadmissible.’ (Lockheed Litigation Cases, supra, at p. 564, 10 Cal.Rptr.3d 34.)” (Emphasis added.) “We agree with this analysis. Indeed, as the Court of Appeal in that case also noted (Lockheed Litigation Cases, supra, 115 Cal.App.4th at p. 564, 10 Cal.Rptr.3d 34), the California Law Revision Commission comments to Evidence Code section 801 explained that “under existing law, irrelevant or 3 CROSS-DEFENDANT GLACIER NORTHWEST, INC.’S REPLY TO PLAINTIFF AXIS HOMEOWNERS ASSOCIATION’S OBJECTION AND OPPOSITION TO DEFENDANT GLACIER NORTHWEST, INC.’S MOTION. IN LIMINE NO. 1 TO EXCLUDE DANIEL CHUDNOVSKY’S TESTIMONY ON WATER INTRUSION INTO THE ELEVATOR PIT, THE SOURCE OF ANY WATER INTRUSION, THE CONDITION OF THE ELEVATOR EQUIPMENT SUBSEQUENT TO HIS 2015 INVESTIGATION, AND LIMIT TESTIMONY TO WHAT WAS OBSERVED BY DANIEL CHUDNOVSKY AT HIS PHYSICAL INSPECTION IN 2015oO 8B WN speculative matters are not a proper basis for an expert's opinion. .. . Thus, under Evidence Code section 801, the trial court acts as a gatekeeper to exclude speculative or irrelevant expert opinion. As we recently explained, “/T/he expert's opinion may not be based ‘on assumptions of fact without evidentiary support [citation], or on speculative or conjectural factors... [J] Exclusion of expert opinions that rest on guess, surmise or conjecture [citation] is an inherent corollary to the foundational predicate for admission of the expert testimony: will the testimony assist the trier of fact to evaluate the issues it must decide?’ (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117 [8 Cal.Rptr.3d 363].)” (People v. Richardson (2008) 43 Cal.4th 959, 1008 [77 Cal.Rptr.3d 163, 183 P.3d 1146]; accord, People v. Moore (2011) 51 Cal.4th 386, 405 [121 Cal.Rptr.3d 280, 247 P.3d 515].)” (Emphasis added.) Glacier is requesting that this Court exclude testimony that is unreliable expert opinion based on conjecture. 2. THE POINT OF THE CASES CITED BY GLACIER IS THAT THE MATTER RELIED UPON MUST PROVIDE A REASONABLE BASIS FOR THE OPINION OFFERED. SPECULATION AND CONJECTURE ARE NOT A REASONABLE BASIS FOR AN EXPERT OPINION. Plaintiff contends that Glacier’s cases are not applicable because they do not deal with excluding an expert opinion where “...the factual basis underlying the opinion was the expert's personal observation made several years before his trial testimony.” (Opposition, 7:5-7:10.) However, plaintiffs cases do not deal with that fact set either. In fact, plaintiff cited to Douglas v. Ostermeier (1991) 1 Cal.App.4th 729, 739 which deals with a biased witness. Glacier does not contend that Chudnovsky is biased on the elevator pit issue. He just lacks sufficient factual information to opine on the condition of the pit as of 2021. Mit 4 CROSS-DEFENDANT GLACIER NORTHWEST, INC.’S REPLY TO PLAINTIFF AXIS HOMEOWNERS ASSOCIATION’S OBJECTION AND OPPOSITION TO DEFENDANT GLACIER NORTHWEST, INC.’S MOTION. IN LIMINE NO. 1 TO EXCLUDE DANIEL CHUDNOVSKY’S TESTIMONY ON WATER INTRUSION INTO THE ELEVATOR PIT, THE SOURCE OF ANY WATER INTRUSION, THE CONDITION OF THE ELEVATOR EQUIPMENT SUBSEQUENT TO HIS 2015 INVESTIGATION, AND LIMIT TESTIMONY TO WHAT WAS OBSERVED BY DANIEL CHUDNOVSKY AT HIS PHYSICAL INSPECTION IN 2015oO 8B WN In Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co. (1996) 47 Cal.App.4th 464, 489-490, also cited by plaintiff, the issue was the calculation of lost profits due to St. Paul’s breach of a collateral agreement entered into for Arntz to obtain bonding. The court ruled that St. Paul’s proposed rule that lost profits could only be based on bids Arntz could not submit due to the lack of bonding capacity was a senseless waste of time. People v. Brekke (1967) 250 Cal.App.2d 651, 661-662 was a criminal case involving the mental competency of Brekke. The doctor based his opinion on a medical report by another doctor and other data provided to him. In People v. Fulcher (2006) 136 Cal.App.4th 41, 54, the defendant failed to object to testimony that he had used force during a sexual assault and the careless review of records by the expert. In Sinaiko v. Superior Court (2004) 122 Cal.App.4th 1133, 1142, the issue was a medical expert’s opinion. And the list goes on. The point is that regardless of the type of case the expert opinion is for, the matter relied upon must provide a reasonable basis for the opinion offered. In Howard Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 1102, 1121, also cited by plaintiff, the court said: “So long as foundational reliability is met, the strength of an expert's assumptions affects the weight rather than the admissibility of the opinion.” Glacier contends that Chudnovsky’s testimony with regard to what he thinks may be the condition of the elevator pit is too speculative to be admitted into evidence. He should have knowledge on the conditions to be able to opine on the condition of the pit and equipment, otherwise he is merely speculating. Glacier cited to Smith v. ACandS, Inc. (1994) 31 Cal.App4"" 77, 93 regarding the court’s discussion of an expert’s attempt to extrapolate the conditions of a work site by looking at a photograph. And, the court determined that relying on old black and white photographs was highly suspect and combined with other errors, was prejudicial. The point of the citation was the court’s citation to Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 338, 145 Cal.Rptr. 47 and was twofold: (1) Chudnovsky is extrapolating part of his opinions in reliance on photographs taken in 2015; and (2) the Hyatt court held that “An expert’s testimony must be based on matters upon which he may reasonably rely. (Evid. Code § 801.) Conjecture and Mit 5 CROSS-DEFENDANT GLACIER NORTHWEST, INC.’S REPLY TO PLAINTIFF AXIS HOMEOWNERS ASSOCIATION’S OBJECTION AND OPPOSITION TO DEFENDANT GLACIER NORTHWEST, INC.’S MOTION. IN LIMINE NO. 1 TO EXCLUDE DANIEL CHUDNOVSKY’S TESTIMONY ON WATER INTRUSION INTO THE ELEVATOR PIT, THE SOURCE OF ANY WATER INTRUSION, THE CONDITION OF THE ELEVATOR EQUIPMENT SUBSEQUENT TO HIS 2015 INVESTIGATION, AND LIMIT TESTIMONY TO WHAT WAS OBSERVED BY DANIEL CHUDNOVSKY AT HIS PHYSICAL INSPECTION IN 2015oO 8B WN speculation provide no proper basis for an expert’s opinion.” This should be the rule no matter what the expert testimony pertains to. The Hyatt court continued: “As the court pointed out ‘even an expert witness cannot be permitted just to testify in a vacuum by [sic] things that he might think could have happened.”” “Tt is apparent that the defendant's proffered evidence would have been speculative, conjectural and remote in nature and could very well have confused the jury. (Culpepper v. Volkswagen of America, Inc., supra., 33 Cal.App.3d 510.) Therefore the court properly rejected such speculation, and defendant's case proceeded. ...” (Hyatt, supra at p.338.) This quotation from Hyatt is particularly apropos to this case, as Chudnovsky is testifying on what he thinks could have happened in the elevator pit, to the elevator equipment, over the past 6 years, based only on what he saw 6 years ago, based in part on his photographs from 2015. Finally, the Hyatt court stated: “It is well settled that an expert's assumption of facts contrary to the proof destroys the opinion. (Winthrop v. Industrial Acc. Com. (1931) 213 Cal. 351, 354-355 [2 P.2d 142].)...” (Hyatt, Id..) Glacier contends that Chudnovsky is assuming facts on the current condition of the elevator pit and elevator equipment. Evidence Code section 801 requires that any opinion of an expert be based upon matter that is of the type that reasonably may be relied upon. This court has the discretion and the power to exclude Chudnovky’s opinion on the current condition of the elevator pit and elevator equipment as well as any opinion on their condition subsequent to 2015. As stated in Evidence Code §352, the probative value of Chudnovsky’s testimony is substantially outweighed by the probability that its admission will create substantial danger of undue prejudice, confuse the issues or mislead the jury. Chudnovsky cannot testify to a foundation of facts that will support his opinions on what he believes is the current condition of the elevator pit and equipment. Mf Mit Ii MI 6 CROSS-DEFENDANT GLACIER NORTHWEST, INC.’S REPLY TO PLAINTIFF AXIS HOMEOWNERS ASSOCIATION’S OBJECTION AND OPPOSITION TO DEFENDANT GLACIER NORTHWEST, INC.’S MOTION. IN LIMINE NO. 1 TO EXCLUDE DANIEL CHUDNOVSKY’S TESTIMONY ON WATER INTRUSION INTO THE ELEVATOR PIT, THE SOURCE OF ANY WATER INTRUSION, THE CONDITION OF THE ELEVATOR EQUIPMENT SUBSEQUENT TO HIS 2015 INVESTIGATION, AND LIMIT TESTIMONY TO WHAT WAS OBSERVED BY DANIEL CHUDNOVSKY AT HIS PHYSICAL INSPECTION IN 2015oO 8B WN 3. CHUDNOVSKY WAS ALREADY CROSS-EXAMINED BY OPPOSING PARTIES DURING HIS DEPOSITION AND IT IS CLEAR THAT HE IS LACKING IN THE TYPE OF FACTUAL INFORMATION NECESSARY TO PROVIDE A SOUND FOUNDATION FOR HIS OPINION. During the eleventh and final session of Chudnovsky’s deposition, he was cross- examined by counsel for Webcor, Glacier, Central, and others and it is the results of that cross- examination that is the basis for this motion. Chudnovsky testified that there was water in the elevator pit in 2015. However, on cross-examination, he admitted that he did not know the source of that water. Since he has not seen the elevator pit since 2015, and has not spoken with the personnel who serviced the elevator over the past 6 years, he does not have the ability to testify that there is still water in the elevator pit, that there has been water in the elevator pit at any time during the last 6 years, or how much water, if any, the elevator equipment has been exposed to over the last 6 years. For him to provide any such opinion would be pure speculation. For all we know, the water in the elevator pit could have been a one-time event because Chudnovsky does not know the source of that water in 2015. Further, Chudnovsky did not bother to ask the elevator maintenance company if they thought the rusting of the elevator equipment was hazardous: “Q. We'll get to those in a moment, but in the elevator pit -- have you had any conversations with the elevator maintenance company where they told you that this rusting condition, in their opinion, poses some type of hazard or threat to the operation of the elevator? A. I didn't engage in that kind of conversation with them. They opened up the pit, they went away, we photographed it, then I told them we're finished, and they closed it. Q. Do you know who the elevator maintenance company is? A. I don't.” (Dron Reply Declaration, {]4, Chudnovsky Deposition, 2154:18- 2155:05.) Mit 7 CROSS-DEFENDANT GLACIER NORTHWEST, INC.’S REPLY TO PLAINTIFF AXIS HOMEOWNERS ASSOCIATION’S OBJECTION AND OPPOSITION TO DEFENDANT GLACIER NORTHWEST, INC.’S MOTION. IN LIMINE NO. 1 TO EXCLUDE DANIEL CHUDNOVSKY’S TESTIMONY ON WATER INTRUSION INTO THE ELEVATOR PIT, THE SOURCE OF ANY WATER INTRUSION, THE CONDITION OF THE ELEVATOR EQUIPMENT SUBSEQUENT TO HIS 2015 INVESTIGATION, AND LIMIT TESTIMONY TO WHAT WAS OBSERVED BY DANIEL CHUDNOVSKY AT HIS PHYSICAL INSPECTION IN 2015oO 8B WN Therefore, his testimony on the assumed current condition of the elevator equipment is pure speculation. It is not based on any facts on the current condition of that elevator equipment. He could have asked the elevator maintenance personnel, but he failed to do so. And, allowing Chudnovsky to augment the foundation for his testimony after 11 deposition sessions would be prejudicial to Glacier and the other subterranean garage-related parties. Plaintiff also argues that Chudnovsky has sufficient observation of the subterranean garage walls and floors along with his observations of the elevator pit to opine on its condition. (Opposition, 5:09-5:17.) However, the leakage into the garage through the subterranean garage walls is from the exterior perimeter of the building where the walls are exposed to the water table. The elevator pit is not next to one of the exterior walls and is not in a location that shows any water seepage in the B3 floor (Dron Reply Declaration, {4, Chudnovsky Deposition, Ex. 552, p.1.), so extrapolation of the condition of the walls or the B3 floor to the current condition of the elevator pit would be conjecture at best. 4, ALLOWING CHUDNOVSKY TO TESTIFY THAT THE ELEVATORS ARE ENDANGERMENTS IS PREJUDICIAL TO GLACIER, WEBCOR, AND THE OTHER CROSS-DEFENDANTS RELATED TO THE SUBTERRANEAN GARAGE ISSUES. “A. Well, I don't think that this was an emergency five years ago. It's going to get worse. At a certain point in time, it's going to be an endangerment. That is something the elevator company will determine as they do their quarterly inspections on the elevator. That's a level of responsibility there. I can tell you that there was a point in time where we were looking at the retaining walls and we were, you know, looking at is there an imminent danger here, and I left that all to Panasci and your experts. I'm not dealing with that. But this is a slow-grow defect. It definitely got worse. At a certain point, when these things break, you can have an endangerment. Those elevators are designed to fall so far. J don't think anyone's going to get killed by this, but this is not a safe thing to have 8 CROSS-DEFENDANT GLACIER NORTHWEST, INC.’S REPLY TO PLAINTIFF AXIS HOMEOWNERS ASSOCIATION’S OBJECTION AND OPPOSITION TO DEFENDANT GLACIER NORTHWEST, INC.’S MOTION. IN LIMINE NO. 1 TO EXCLUDE DANIEL CHUDNOVSKY’S TESTIMONY ON WATER INTRUSION INTO THE ELEVATOR PIT, THE SOURCE OF ANY WATER INTRUSION, THE CONDITION OF THE ELEVATOR EQUIPMENT SUBSEQUENT TO HIS 2015 INVESTIGATION, AND LIMIT TESTIMONY TO WHAT WAS OBSERVED BY DANIEL CHUDNOVSKY AT HIS PHYSICAL INSPECTION IN 2015oO 8B WN continue. This needs to be fixed.” (Chudnovsky Deposition, 2150:13 - 2151:10.) (Emphasis added.) (Dron Motion Declaration, 48.) How does he know that there is a slow-growth defect? How does he know that the condition definitely got worse? He does not. Chudnovsky could have questioned the elevator maintenance people about the condition of the elevator equipment during his inspection in 2015, and there was nothing to prevent him from asking for information from that company in 2020 or 2021, prior to the 11" session of his expert deposition. To allow him to now bolster his testimony with new evidence would be prejudicial to all of the subterranean garage related parties. And without new evidence, his elevator pit testimony subsequent to 2015 is all speculation. 5. CONCLUSION. This is not a case of speculation on the part of Glacier. We know for sure what Chudnovsky will opine with regard to the condition of the elevator pit and elevator equipment. The defense cross-examined him during eleven deposition sessions and discovered, during session eleven, exactly what his opinions are on the elevator pit and the elevator equipment, and the lack of factual basis for those opinions. He did not bother to speak with the elevator maintenance personnel on the site when he performed the inspection. He does not know the name of the elevator maintenance company to ask questions of prior to his deposition. As discovery is closed, he cannot now go back and discover what the actual conditions are. Not only would that be improper, but it would be prejudicial to all of the subterranean garage-related parties. Chudnovsky does not have the factual knowledge to provide a sound foundation for his opinions on the current condition of the elevator pit and the elevator equipment. Therefore, his opinions must be limited to the conditions in 2015 and he should be precluded from speculating on their current condition as he did in Session 11 that he would believe that the condition has gotten worse. Ii Ml 9 CROSS-DEFENDANT GLACIER NORTHWEST, INC.’S REPLY TO PLAINTIFF AXIS HOMEOWNERS ASSOCIATION’S OBJECTION AND OPPOSITION TO DEFENDANT GLACIER NORTHWEST, INC.’S MOTION. IN LIMINE NO. 1 TO EXCLUDE DANIEL CHUDNOVSKY’S TESTIMONY ON WATER INTRUSION INTO THE ELEVATOR PIT, THE SOURCE OF ANY WATER INTRUSION, THE CONDITION OF THE ELEVATOR EQUIPMENT SUBSEQUENT TO HIS 2015 INVESTIGATION, AND LIMIT TESTIMONY TO WHAT WAS OBSERVED BY DANIEL CHUDNOVSKY AT HIS PHYSICAL INSPECTION IN 2015oS a w Dated: April _§, 2021 MONTELEONE & McCRORY LLP LL L&R DIANA M. DRON J. MICHAEL GRIMM Attorneys for Glacier Northwest, Inc. 10 CROSS-DEFENDANT GLACIER NORTHWEST, INC.’S REPLY TO PLAINTIFF AXIS HOMEOWNERS ASSOCIATION’S OPPOSITION TO DEFENDANT GLACIER NORTHWEST, INC.’S OBJECTION AND MOTION IN LIMINE NO. 1 TO EXCLUDE DANIEL CHUDNOVSKY’S TESTIMONY ON WATER INTRUSION INTO THE ELEVATOR PIT, THE SOURCE OF ANY WATER INTRUSION, THE CONDITION OF THE ELEVATOR. EQUIPMENT SUBSEQUENT TO HIS 2015 INVESTIGATION, AND LIMIT TESTIMONY TO WHAT WASaS DECLARATION OF DIANA M. DRON I, DIANA M. DRON, hereby declare as follows: Le I am an attorney at law, licensed to practice before the courts of this State, and am a partner of the law firm of Monteleone & McCrory, LLP, attorneys of record for cross- defendant Glacier Northwest, Inc. (“Glacier”). I am the partner who has been responsible for the defense of Glacier since Glacier was served with Webcor’s cross-complaint. 2. This declaration is made in support of Glacier’s reply to Plaintiffs opposition to motion in limine to exclude certain testimony of Daniel Chudnovsky (“Chudnovksy”) with regard to the condition of the elevator pit in the subterranean garage and the cause of the alleged damage to the elevator equipment therein, as well as the cause of the water intrusion into the pit at any time. 3s I attended all eleven sessions of Daniel Chudnovsky’s deposition. During the eleventh and last session of his expert deposition, on February 12, 2021, Chudnovsky made numerous speculative statements on the condition of the elevator pit and the elevator equipment in the pit and testified that a dangerous condition would arise with the elevator equipment even though he had not seen the elevator pit or the elevator equipment since 2015. Those speculative statements are the basis for this motion. 4, Attached hereto as Exhibit C is a true and correct copy of the face page, pages 2154 and 2155, and Ex. 552 to Daniel Chudnovsky’s deposition taken on February 12, 2021. As shown in Exhibit C the elevator pit is highlighted in yellow. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 8th day of April, 2020 at Los Angeles, California. (OI, be DIANA M. DRON 1 CROSS-DEFENDANT GLACIER NORTHWEST, INC.’S REPLY TO PLAINTIFF AXIS HOMEOWNERS ASSOCIATION’S OPPOSITION TO DEFENDANT GLACIER NORTHWEST, INC.’S OBJECTION AND MOTION IN LIMINE NO. 1 TO EXCLUDE DANIEL CHUDNOVSKY’S TESTIMONY ON WATER INTRUSION INTO THE ELEVATOR PIT, THE SOURCE OF ANY WATER INTRUSION, THE CONDITION OF THE ELEVATOR EQUIPMENT SUBSEQUENT TO HIS 2015 INVESTIGATION, AND LIMIT TESTIMONY TO WHAT WAS OBSERVED BY DANIEL CHUDNOVSKY AT HIS PHYSICAL INSPECTION IN 2015EXHIBIT CD. CHUDNOVSKY 2/12/21 AXIS HOMEOWNERS ASSOCIATION V. ALMADEN TOWER VENTURE, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA BD WN PB AXIS HOMEOWNERS ASSOCIATION, a California non-profit mutual benefit corporation, PAP eteleTa feels vs. NOG eva 4.037, orn Nw ALMADEN TOWER VENTURE, LLC, a California limited liability 9 company; WEBCOR CONSTRUCTION LP, DBA WEBCOR BUILDERS, a 10 California corporation and DOES 1-400 inclusive, 11 Defendants. 2 / AND RELATED CROSS-ACTIONS. 13 / 14 15 16 DEPOSITION OF DANIEL CHUDNOVSKY ay, appearing remotely at Los Angeles, California 18 Friday, February 12, 2021 19 Volume 11 (Pages 1988 - 2257) 20 21 22 23 Reported by: Natalie Y. Botelho 24 CSR No. 9897 25 Job No. 4381884 Page 1988 Veritext Legal Solutions 866 299-5127D. CHUDNOVSKY 2/12/21 AXIS HOMEOWNERS ASSOCIATION V. ALMADEN TOWER VENTURE, LLC 1 asking. 2 MR. KAPLAN: Let the judge decide that. I'm 3 just asking whether or not the expert who saw this 4 condition ever told you if he -- you know, that the 5 Association should do something about that. 6 MR. RUBINO: He's answered the question by a Polling Vouloxacitly. wave ned) andidsd Nore say. | oO 8 let's move on. 9 MR. KAPLAN: We'll let the Court address this 10 one. alle OF So the condition in these elevator pits are 12 these rusting pieces that you've identified and saw and 13 put in these exemplar photographs? 14 A. That's the -- you know, that's the problem aS) here, is this water intrusion and result. There's also 16 the two photos down below which are part of Defect N as 17 well. be © Page 2154 Veritext Legal Solutions 866 299-5127D. CHUDNOVSKY 2/12/21 AXIS HOMEOWNERS ASSOCIATION V. ALMADEN TOWER VENTURE, LLC 2 8; @ ‘Do you know who the elevator maintenance 4 company is? e| @ ‘T don't. 6 Q. And what is your recommended repair for this 7 condition in the elevator pit? 8 A. I'd need to refresh my memory and look at my 9 repair protocol on this one, Sandy. 10 Q. Please do. 11 A. Do you know what page that's on? 12 Q. We marked it as Exhibit 560. Look at 13 | Exhibit 560. We've been talking about it all day. 14 That's your repair recommendations. 5 ae Oh, 560? Yeah, 560 is just the repair 16 recommendation. 17 Q. What we've identified today in deposition. 18 A. See, this did work for you. Me organizing 19 | this, you're like right on all these things. 20 Q. Okay. 21 A. Okay. So at the time I wrote this report, the 22 protocol was this, you know, filling in joints as they 23 wene: doing: On the perimeter wall: 860 ito a Wivetlko batt 24 left over. 25 Oe Okay. Is there anything you want to change, Page 2155 Veritext Legal Solutions 866 299-5127FINAL DEFECTS LIST - AXIS CONDOMINIUMS, SAN JOSE - 02/07/20 8. COMMON AREA - INTERIOR AND PARKING GARAGE DEFECT! is pf so — SpA itt B Fo Ng? 4 a So q A ese} Ih a q A ES} | + ' an “rs 7 “ A : fe Se 7 oot { tt Ef \ ws tt € it et oot Z 4 + ———_ | | Et 141 co \ 5 i e = | 3 ——7 water seepage @ | slab grout injection Ce ste i location | = oe ee J ae Pau Lo trae 2 Ir ioe tt ql =: a ET? I ! | 7 I an | oo TRV EIS a RUNS RIOR: eget a PARKING GARAGE - DEFECTS DIAGRAM 171A AXIS-EXP-DCA012186 AXIS-EXP-DCA000186PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. | am over the age of 18 and not a party to the within action; my business address is 725 South Figueroa Street, Suite 3200, Los Angeles, California 90017. On April 8, 2021, I served the foregoing document described as: CROSS- DEFENDANT GLACIER NORTHWEST, INC.’S REPLY TO PLAINTIFF AXIS HOMEOWNERS ASSOCIATION’S OPPOSITION TO DEFENDANT GLACIER NORTHWEST, INC.’S OBJECTION AND MOTION IN LIMINE NO. 1 TO EXCLUDE DANIEL CHUDNOVSKY’S TESTIMONY ON WATER INTRUSION INTO THE ELEVATOR PIT, THE SOURCE OF ANY WATER INTRUSION, THE CONDITION OF THE ELEVATOR EQUIPMENT SUBSEQUENT TO HIS 2015 INVESTIGATION, AND LIMIT TESTIMONY TO WHAT WAS OBSERVED BY DANIEL CHUDNOVSKY AT HIS PHYSICAL INSPECTION IN 2015; DECLARATION OF DIANA M. DRON on the interested parties in this action by placing [_]the original [X] a true copy thereof enclosed in sealed envelopes as follows on the attached mailing list: & VIA ELECTRONIC SERVICE: Complying with Code of Civil Procedure §1010.6, my electronic business address, arellano@mmlawyers.com, | caused such document to be electronically served through FileAndServeXpress to the parties on the Service List maintained on the FileAndServeXpress Website for this case. The file transmission was reported as complete and a copy of the FileAndServeXpress Receipt will be maintained with the original document in our office. Executed on April 8, 2021 at Los Angeles, California. By: LW Ap AL Mirka Arellano PROOF OF SERVICE