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Defendants move to exclude evidence "concerning other incidents taking place in Metropolitan Center before the date of the shooting, and any correspondence concerning security not directly related to this incident" (Motion in Limine, 2:1-4), on the sole ground that such evidence is irrelevant. Defendants contend that "the issue in this case is whether the security measures provided were adequate. The evidence relevant to such determination is the standard of care in the industry, and not what was done in other incidents." Id., 2:25-3:2 (emphasis in original). Plaintiff agrees that the issue is the adequacy of the security, but its adequacy must be judged in light of the circumstances known to the defen dants at the time of the shooting. Isaacs v. Huntington Mem. Hospital (1985) 38 Cal.3d 112, 211 Cal.Rptr. 356; Lopez v. McDonald's Corp. (1987) 193 Cal.App.3d 495, 509, 238 Cal.Rptr. 436.
In Isaacs, the supreme court held that, under the circum- stances there, the issue of the foreseeability of an assault in a hospital parking lot was a matter for the jury to decide. Id., at 130. Among those circumstances was the fact that there had been reports of other assaults on the hospital grounds, as well as reports of "harassment." Ibid. The court also held that although prior similar incidents were not necessary to a finding of duty, such incidents, if the hospital was aware of them, were certainly relevant. Id., at 127. The court stated that it is
relevant whether a landowner knew or had reason to know from past experience, that there is a likeli hood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual.
Id., at 124 (quoting Rest.2d Torts, sec. 344, com. f).Lopez held that McDonald's had no duty to protect its customers from "a maniacal, mass murderous assault" in part because the "theft-related and property crimes of the type shown by the history of its operations, or the assault-type activity which had occurred in the vicinity" did not make such an incident foreseeable. Id., at 509. It is thus clear that such evidence is relevant to the question of duty.
The Isaacs court directed that on retrial, the court admit evidence of assaults and thefts that had occurred on the premises. Isaacs, supra, at 132. This is precisely the type evidence--based on defendants' own incident reports--that plaintiff seeks to introduce in the present case. Plaintiff will show that there were reports of thefts, of bomb threats, of assaults, and even of a man threatening to go to a law office and "blow people away." These reports will show that defendants knew "from past experience, that there was a likelihood of conduct . . . likely to endanger the safety of the visitor." Id., at 124.
Moreover, unlike the situation in Lopez, the evidence shows that the defendants were aware of the possibility that a third person could enter the building armed with a shotgun and threaten the tenants' safety. Thus, the evidence is relevant to the question of the foreseeability of a shotgun assault ("what is required to be foreseeable is the general character of the event or harm . . . not its precise manner of occur rence" Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 57-58, 192 Cal.Rptr. 857), and thus to defendants' duty to take steps to prevent such an assault.
For the foregoing reasons, defendants' motion in limine to exclude evidence of prior incidents must be overruled.
Defendants move to "prohibit[] any reference to" evidence of subsequent remedial security measures "in voir dire, opening statement, closing argument, examination of witnesses, and any other statement in the presence of the jury." Motion in Limine, 1:19-2:8. Defendants argue that such evidence is excludable under Evidence Code sections 1151 and 352. Such a blanket exclusion is unwarranted at this time, given the limited nature of the exclusion granted by section 1151.
Section 1151 excludes evidence of subsequent remedial or precautionary measures only if that evidence is used "to prove negligence or culpable conduct in connection with the event." 1 Witkin, Cal. Evidence (3d ed. 1986) Circumstantial Evidence, sec. 444 at 413-14; see Ault v. International Harvester (1974) 13 Cal.3d 113, 117, 117 Cal. Rptr. 812 (rule does not apply in strict liability action because manufacturing defective product is not culpable conduct). Evidence of subsequent repairs may be introduced to prove such contested matters as the feasibility of eliminating the cause of the accident (Baldwin Contracting Co. v. Winston Steel Works (1965) 236 Cal.App.2d 565, 573, 46 Cal.Rptr. 421), or for purposes of impeachment (Law Rev. Com. com., 29B West's Ann. Evid. Code (1966 ed.) sec. 1151 at 23; 1 Witkin, supra, sec. 444).
In this case, defendants have continuously maintained that for reasons such as intrusion into private lives and the limited number of security personnel, it was not feasible for them to handle domestic dispute reports differently than they did. Thus, the fact that after the incident they began handling these matters in the manner the plaintiff has suggested would show that it was feasible for them to do so. The evidence is thus admissible on the controverted issue of the feasibility of taking the precautions. Baldwin, supra, at 573; People v. Lockheed Shipbuilding & Construction Co. (1975) 50 Cal.App.3d.Supp. 15, 36, 123 Cal.Rptr. 778.
Moreover, plaintiff anticipates that the officials in charge of defendants' security will testify that in their opinion security was adequate to protect the tenants. Evidence that these officials ordered subsequent changes could be used to impeach that testimony, because the jury could infer that if they truly believed security to be adequate, the officials would not have ordered changes.
[T]he trier of the facts might reasonably consider such conduct on the part of the witness to be inconsistent with his testimony that in his opinion . . . the condition existing before the change was safe or free from defect.
Pierce v. J.C. Penney Co. (1959) 167 Cal.App.2d 3, 8, 334 P.2d 117 (emphasis in original).For the foregoing reasons, the court must overrule Defendants' motion for a blanket ban on all evidence of subsequent remedial measures, but should exercise its discretion as the trial progresses.
Defendants move to exclude "the name of any criminal suspect, or any other evidence so as to identify the name of any criminal suspect that Donald Smith, M.D. has been retained by, or has testified on behalf of, at any judicial proceed ing." Motion in Limine, 2:1-5. They contend that "[h]ow Dr. Smith's criminal trial experience has any bearing on his testimony in a civil trial is frankly not clear." Id., 3:8-10. As will be shown, California law makes quite clear how testimony in previous trials has a bearing on an expert's credibility.
Defendants, with their customary generosity, "recognize plaintiff's need for limited examination concerning the fact that Dr. Smith has testified in criminal matters, and the issues testified about." California law, however, is much more generous than are the defendants. "A wide latitude is permitted in the cross examination of an expert witness in all matters tending to test his credibility so that the jury may determine the weight to be given the testimony." People v. Tallman (1945) 27 Cal.2d 209, 214, 163 P.2d 857 (emphasis added); Daggett v. Atchison, Topeka & Santa Fe Ry. Co. (1957) 48 Cal.2d 655, 663-64, 313 P.2d 557. "A wide latitude is permitted in the cross-examination of an expert witness including questions affecting the accuracy and credibility of the witness." Brown v. Affonso (1960) 185 Cal.App.2d 235, 238, 8 Cal.Rptr. 156. An expert witness "may be subjected to the most rigid cross-examination concerning his qualifications and his opinion and its sources." Law Rev Com. com., 29B West's Ann. Evid. Code (1966 ed.) sec. 721, p. 56; Grimshaw v. Ford Motor Co. (1981) 119 Cal.App..3d 757, 796, 174 Cal.Rptr. 348; Dincau v. Tamayose (1982) 131 Cal.App.3d 780, 798-99, 182 Cal.Rptr. 855.
Plaintiff anticipates that Dr. Smith will testify in two areas: 1) based on a one-hour interview with Mrs. Carter, Dr. Smith will testify that she is not suffering from any mental problems; and 2) based on his review of the files, Dr. Smith will testify concerning Michael Carter's mental state. In conducting the wide-ranging and rigid cross-examination of Dr. Smith's qualifications and biases permitted by California law, it is surely proper for plaintiff to elicit from Dr. Smith the opinions he has presented in other cases. See, e.g., Kennedy, Cal. Expert Witness Guide (C.E.B. 1983) Cross-Examination at Trial, sec. 11.11, at 255-56. An expert witness may be queried about the number of times he has testified for plaintiffs and defendants, and that his previous testimony may be explored with great latitude. See, e.g., Kennedy, supra. This latitude should encompass the names of the people for whom he has testified.
For the foregoing reasons, the court must overrule the motion in limine to exclude evidence of Dr. Smith's past criminal clients.
Defendants move to exclude "any evidence of Defendants' alleged negligence occurring after Laura Carter was shot by her husband, Michael Carter." Motion in Limine, 2:1-3. They contend that such evidence is irrelevant to the issue of whether they should have prevented the shooting.
Although this contention may be true, even defendants must concede that this is not the only issue. Laura Carter seeks damages for emotional distress. This emotional distress may be divided into two factors: 1) the distress that arose from being shot because of defendants' negligence in allowing Michael to enter the office; and 2) the emotional terror of waiting for her husband to return and finish her off, and the horror she felt as she saw the shooting of her friends and co-workers. It is probable that defendants will argue that they are not liable for the second component because they did everything they could to stop the gunman once they were aware of his presence. Plaintiff disagrees with this argument, and she must be allowed to introduce evidence of Defendants' continuing negligence. Moreover, Defendants' continuing negligence is relevant to the issue of their original negligence. The jury could infer from the inadequacy of their response to this emergency that they were also ill-prepared to prevent a gunman from entering the premises.
Defendants' "request" that the trial be bifurcated is not properly before the court. Code of Civil Procedure section 598 provides that a party's request for bifurcation must be made by noticed motion, and that the bifurcation order must be made no later than the close of the pretrial conference. Not only is the request too late, no proper motion is before the court. Therefore, the request must be denied. Even if the court exercises its authority under section 598 to bifurcate the trial at any time on its own motion, it must at least give the parties notice of its intentions, so that there can be a meaningful opposition.
For the foregoing reasons, defendants' motion must be overruled, and its "request" for bifurcation denied.
Defendants move to exclude "any evidence of ABC Co. and/or ABC Co. security officers, including, but not limited to, any alleged duty to ask ABC Co. officers to voluntarily respond to armed emergencies on Defendants' property." Motion in Limine, 2:1-4. Defendants contend that such evidence is irrelevant to a determination of Defendants' liability, and that ABC Co. had no duty to respond voluntarily to an armed emergency.
Even accepting Defendants' narrow view of the issue, the evidence is relevant. Plaintiff can show that there was an arrangement whereby armed ABC Co. officers would respond to an emergency at Metropolitan Plaza if they were called. Thus, whether or not ABC Co. may have a duty in the abstract to respond voluntarily, the fact is that they took this duty on by agreeing to do so. Moreover, one of Defendants' claims is that because their security was unarmed, there was nothing they could have done in a confrontation with an armed gunman. Evidence that ABC Co. had armed guards available to help in an emergency would belie this claim of helplessness before an armed gunman. It is therefore relevant to the liability issue, even as defendants frame it. Finally, the fact that ABC Co. had armed guards in the same building is relevant to assessing Defendants' claims that the public would not have tolerated their arming their security guards.
For the foregoing reasons, defendants' motion in limine must be overruled.
Defendants move to exclude "any evidence of a duty to provide firearms to private security officers, including those employed by Defendants." Motion in Limine, 2:1-3. They also seek to exclude "evidence of any decision-making process on the part of Defendants concerning the arming if [sic] their security officers." Id., 2:4-5. They maintain that "their [sic] is no authority for the proposition that ordinary businesses, including a high-rise building owner, are required to provide armed security for their premises." Id., at 2:18-21 (emphasis in original). They further contend that this "extreme measure" is not justified because of the high risk of injury to innocent bystanders.
Defendants assert no authority for their ipse dixit assertion that there can never be a duty to provide armed security guards. Indeed, Defendants seem to conceive of "duty" as a Platonic form, existing outside of human experi- ence and immutable. In California, however, duty is a flexible concept, and duty depends on what is foreseeable. Isaacs v. Huntington Mem. Hospital (1985) 38 Cal.3d 112, 211 Cal.Rptr. 356; Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 192 Cal.Rptr. 857. Thus evidence of defendants' discussions concerning the arming of their guards goes to the question of duty, because it goes to the question of what defendants actually foresaw, and of the events of which they had knowledge.
Lopez v. McDonald's Corp. (1987) 193 Cal.App.3d 495, does not go so far as to hold that there can never be a duty to arm private security guards. There, plaintiff's own expert had only recommended that unarmed security guards be provided to control the relatively minor thefts that had occurred on the premises. Id., at 509. The court held, inter alia, that such unarmed guards could not have prevented the tragedy, and that therefore their absence was not a proximate cause of the in that case. Id., at 513-517. Here, evidence that Metropolitan Plaza's head of security recommended that armed guards be provided, and that other buildings provided such guards, is relevant to the question of duty.
For the foregoing reasons, Defendants' motion in limine must be overruled.
Defendants move to exclude evidence of other security measures undertaken by other tenants of Metropolitan Plaza, arguing that these measures are not relevant to Defendants' liability.
Defendants argue that such measures are irrelevant, "absent a showing . . . that [her employer] did not know of the existence of such measures, and, but for the lack of knowledge, would have installed them." Motion in Limine, 2:20-22. Again, Defendants miss the point. The issue here is foreseeability, and the adequacy of Defendants' security. The fact that other tenants reported incidents of serious security risks, and asked Defendants for additional security, goes to Defendants' knowledge of the types of risks their security needed to protect against. This is relevant to the issue of duty. Isaacs v. Huntington Mem. Hospital (1985) 38 Cal.3d 112, 124, 211 Cal.Rptr. 356.
Moreover, the fact that defendants advised other tenants on matters of security, but did not provide the same advice-- or offer the same additional services--when her employer reported the threats to Laura Carter is directly relevant to the issue of breach of duty. Defendants had a duty to meet the security needs of all of their tenants. They cannot meet that duty by providing additional security to some tenants and not even offering that security to others.
For the foregoing reasons, defendants' motion in limine must be overruled.
Defendants move to exclude evidence of their financial condition until such time as they are found liable for punitive damages. Plaintiff concedes that under Civil Code section 3295, subdivision (d), the court must do so if requested. Plaintiff therefore does not oppose the motion insofar as it asks that no evidence of Defendants' financial condition be introduced to support a claim for punitive damages until defendants' liability for those damages has been established.
Defendants go too far, however, when they ask this court to bar any evidence necessary to prove defendants' liability for those damages until "the jury has rendered a verdict for plaintiff on the issues of liability and actual damages, and has found moving parties guilty of malice, oppression or fraud by clear and convincing evidence." Motion in Limine, 2:5-8.
First, it is difficult to understand how the jury could find defendants guilty of malice, oppression or fraud if plaintiff is not allowed to introduce evidence of "any elements necessary to prove [punitive] damages" until after they have been found guilty.
Second, defendants' demand is not supported by section 3295. Section 3295 merely provides a procedure for preventing plaintiffs from introducing evidence of a defendant's financial condition before liability for punitive damages is established. It is quite clear that "[n]othing in this section shall prohibit the introduction of prima facie evidence to establish a case for [punitive] damages pursuant to Section 3294." Civ. Code sec. 3295(b). Therefore, plaintiff should be allowed to introduce evidence to prove that defendants acted with malice, oppression or fraud, and are thus liable for punitive damages, along with the evidence that they are liable for negligence.
For the foregoing reasons, plaintiff requests that defendants' motion be overruled to the extent that it asks the court to limit evidence in support of the claim for punitive damages.