Dominguez v. Four Winds International Corporation, No. 3:2008cv00388 - Document 85 (S.D. Cal. 2009)
Court Description: ORDER denying 51 Motion in Limine; granting 53 Motion in Limine; granting 54 Motion in Limine; granting 55 Motion in Limine; granting in part and denying in part 56 Motion in Limine; granting 57 Motion in Limine; granting 58 Motion in L imine; denying 59 Motion in Limine; granting 60 Motion in Limine; Holding in Abeyance 52 and 61 Motions in Limine; Vacating 5/26/2009 Motion Hearing; Vacating 6/2/2009 Trial; Setting telephonic conference on 5/28/2009 at 2:30 PM; Requiring Response re: Federal Claim. Signed by Judge M. James Lorenz on 5/22/2009. (mjj)(jrl).
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Dominguez v. Four Winds International Corporation Doc. 85 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 ALEX DOMINGUEZ, CHRISTY DOMINGUEZ, Plaintiffs, 13 14 15 v. FOUR WINDS INTERNATIONAL CORPORATION, 16 Defendant. 17 18 ) ) ) ) ) ) ) ) ) ) ) ) ) Civil No. 08cv388 L (LSP) ORDER GRANTING MOTIONS IN LIMINE [doc. # 53, 54, 55, 57, 58, 60]; GRANTING IN PART AND DENYING IN PART [doc. # 56]; HOLDING IN ABEYANCE [doc. # 52, 61]; DENYING MOTION NOS. 51, 59; VACATING MAY 26, 2009 MOTION HEARING; VACATING JUNE 2, 2009 TRIAL; SETTING TELEPHONIC CONFERENCE; REQUIRING RESPONSE RE: FEDERAL CLAIM The parties’ motions in limine have been fully briefed and the Court finds the 19 motions suitable for determination on the papers submitted and without oral argument 20 pursuant to Civil Local Rule 7.1(d)(1). 21 22 23 Upon review of the parties’ filings in support of and in opposition to the motions, IT IS HEREBY ORDERED as follows: 1. Plaintiffs’ motion in limine no. 1 to preclude the introduction of evidence 24 concerning any disclaimer of the implied warranty of merchantability or regarding any 25 contractual limitation or waiver of any remedies under the Song-Beverly Consumer 26 Warranty Act is GRANTED. [doc. #53] Disclaimers of incidental and consequential 27 damages under the Song-Beverly Act are unlawful and invalid; therefore any evidence to 28 suggest otherwise is improper and will be precluded. 08cv388 Dockets.Justia.com 1 2. Plaintiffs’ motion in limine no. 2 to prevent defendant or its counsel from 2 making any mention of the availability of attorney fees to the prevailing plaintiffs’ in this 3 action is GRANTED. [doc. #54] Although acknowledging that attorneys’ fees are 4 generally not relevant to liability, defendant argues that the jury should be instructed to 5 disregard attorneys’ fees because a jury “may be inclined to award civil penalties to give 6 the plaintiffs money to pay their attorney.” (Opp. at 2.) This proposition is not supported 7 by any case law. Defendant also contends that because plaintiffs are seeking civil 8 penalties for an alleged willful violation of the Song-Beverly Act, defendant’s state of 9 mind is at issue, it should be permitted to explain its decision-making process which may 10 include avoiding possible exposure to civil penalties and attorneys’ fees. (Opp. at 3-4.) 11 As plaintiffs correctly note, however, “attorneys’ fees have no meaningful connection to 12 issues of liability.” (Reply at 3-4.) Accordingly, defendant may not mention the 13 availability of attorneys’ fees. 14 3. Plaintiffs’ motion in limine no. 3 to preclude the introduction of evidence 15 concerning any post-filing settlement discussions is GRANTED. [doc. #55] The Court 16 notes that defendant’s response memorandum indicates that it did not oppose this motion, 17 “and so informed plaintiffs’ counsel at the meet and confer telephone conference of April 18 14, 2009." (Resp. at 1.) Accordingly, this motion should not have been filed. 19 4. Plaintiffs’ motion in limine no. 4 to preclude any witness from testifying to 20 the meaning of or the events recorded in business records unless they first demonstrate 21 personal knowledge of the facts recorded in those documents is GRANTED IN PART 22 and DENIED IN PART. [doc. #56] Because first-hand knowledge is ordinarily 23 required for testimony, the parties may object to specific questions concerning business 24 records at trial. 25 5. Plaintiffs’ motion in limine no. 5 to preclude defendants’ expert from 26 testifying as to the details of any hearsay upon which he bases his opinion is GRANTED. 27 [doc. #57] The parties agree that Federal Rule of Evidence 703 provides that an expert 28 may rely upon hearsay or other inadmissible evidence to form the basis of his opinion but 2 08cv388 1 may not testify as to the details of the inadmissible evidence. Defendant states that it has 2 no substantive objection to the motion but a specific objection at the time of trial will 3 suffice to carry out the requirement and intent of Rule 703. The Court agrees and the 4 motion will be granted. Of course, this ruling does not preclude an objection being made 5 during trial. 6 6. Plaintiffs’ motion in limine no. 6 for a finding that plaintiffs may testify as 7 to the value of the Vehicle as a result of its defects is GRANTED. [doc. #58] The parties 8 agree that the owner of property is permitted to offer his or her opinion as to the value of 9 the property or the value of the property as a result of defects. No special qualifications 10 are required of the owner. Defendant may, however, challenge the value plaintiffs place 11 on the Vehicle. 12 7. Plaintiffs’ motion in limine no. 7 to preclude defendant from attempting to 13 solicit expert opinion testimony from persons who were not designated as expert 14 witnesses is DENIED as moot. [doc. #59] Defendant has indicated that it does not 15 intend to call any dealer employees as witnesses. (Opp. to MIL #7.) Nevertheless, 16 defendant requests the Court order that both parties are precluded from attempting to 17 solicit expert opinion testimony from persons not designated as experts. The Court so 18 Orders. 19 8. Plaintiffs’ motion in limine no. 8 for a determination that oral statements 20 made by defendant’s dealership personnel regarding the Vehicle which is the subject of 21 this action and the repairs they performed are admissible over a hearsay objection is 22 GRANTED. [doc. #60] Defendant states that the motion is moot because plaintiffs never 23 took the Vehicle to a Four Winds dealership and offers no substantive objection to 24 plaintiffs’ motion. 25 authorized dealerships to perform repairs. Federal Rule of Evidence 801(d)(2)(C) and 26 (D) provides that statements are not hearsay if offered against defendant and are 27 statements either authorized by defendant or made by an agent of defendant within the 28 scope of the agency. Defendant does not dispute that dealership personnel were acting as Plaintiffs contend that they took the Vehicle to Four Winds 3 08cv388 1 agents for defendant or that statements made by dealership personnel are relevant to show 2 that the value of the Vehicle to plaintiffs is substantially impaired. Accordingly, 3 plaintiffs’ motion is granted. 4 9. Plaintiffs’ motion in limine no. 9 to preclude defendant from introducing 5 any evidence of its arbitration program or for an order setting an evidentiary hearing to 6 determine whether defendant’s arbitration program is qualified under 15 U.S.C. § 7 2310(a), and/or 16 C.F.R. §§ 703.1 through 703.8 [doc. #61] and defendant’s motion in 8 limine to determine whether defendant’s arbitration program is a qualified dispute 9 resolution process reflect the same issue. 10 In this action, plaintiff seeks to recover damages under the Song-Beverly 11 Consumer Warranty Act and the Magnuson-Moss Warranty Act. There are provisions 12 under each Act for a defendant to establish a dispute resolution process. Defendant must, 13 however, meet various requirements in order to show that the arbitration process will cut 14 off mandatory civil penalties under California Civil Code § 1794(e) or preclude recovery 15 under 15 U.S.C. § 2310(a). 16 Plaintiffs state that they are not seeking a civil penalty under § 1794; therefore, 17 whether defendant maintains a Qualified third-party Dispute Resolution Process 18 (“QDRP”) is irrelevant. 19 If all the requirements under 15 U.S.C. § 2310(a)(1)-(5) are satisfied, defendant 20 will have demonstrated that it has established an Informal Dispute Settlement Procedure 21 (“IDSP”) under the Magnuson-Moss Warranty Act. Plaintiffs acknowledge that if 22 defendant has an IDSP, plaintiffs’ federal claim will fail because they did not use the 23 arbitration program before filing this action. (Plts’ MIL No. 9 at 1.) 24 The Court finds that on the papers presented, defendant has not established that its 25 arbitration program meets the requirements of federal law and therefore an evidentiary 26 hearing would be necessary prior to trial. This is an issue of law that should have been 27 presented by way of a motion for summary judgment to the Court at a much earlier stage 28 in the litigation and not immediately prior to trial. 4 08cv388 Plaintiffs have stated that they are “willing to abandon the federal [Magnuson- 1 2 Moss] claims if the court will retain jurisdiction over the supplemental state claims.” 3 (Pltfs’ Cont. of Fact & Law at 49.) Because plaintiffs have not filed a notice of 4 abandonment of federal claim or an ex parte motion to determine whether the Court will 5 retain jurisdiction over the supplemental state claims if plaintiffs abandon the federal 6 claim, the parties’ motions in limine concerning defendant’s arbitration program are 7 premature. As a result, the Court ORDERS plaintiffs to file a notice or an ex parte 8 motion concerning the status of their federal claim within 10 days of the filing of this 9 Order and will hold the parties’ motions in limine in abeyance. 10. 10 Defendant’s motion in limine to exclude plaintiffs’ designated expert from 11 testifying as to mold and the use of the wrong type of sealant is DENIED without 12 prejudice. [doc. #51] Defendant may cross-examine plaintiffs’ expert at the time of trial 13 concerning his expertise as to mold and the impact of the type of sealant used. 11. 14 15 admissibility is subject to evidentiary objections at trial. IT IS FURTHER ORDERED vacating the hearing on the parties’ motions in 16 17 To the extent evidence is not excluded pursuant to this Order, its limine set for May 26, 2009. 18 IT IS FURTHER ORDERED vacating the June 2, 2009 trial date. 19 IT IS FURTHER ORDERED setting a telephonic conference on Thursday, May 20 28, 2009 at 2:30 p.m. Plaintiffs shall initiate the conference call to the Court – (619) 21 557-7669. IT IS SO ORDERED. 22 23 DATED: May 22, 2009 24 M. James Lorenz United States District Court Judge 25 26 /// 27 /// 28 /// 5 08cv388 1 COPY TO: 2 HON. LEO S. PAPAS UNITED STATES MAGISTRATE JUDGE 3 4 ALL PARTIES/COUNSEL 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 08cv388
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