Kelly v. New West Federal Savings (49 Cal. App. 4th 659, 1996)

Opinion

HASTING, J.

This case demonstrates misuse and abuse of motions in limine which resulted in denial of due process for plaintiffs in a personal injury action. We reverse and remand to the trial court.

Facts

A. Background:

On January 6, 1989, plaintiffs Deborah Kelly and Beverly Caradine were riding on an elevator located at the Hillcrest Medical Center in Inglewood, California. The elevator allegedly “misleveled,” that is, in this case, it stopped some distance above the level of the floor upon which plaintiffs wished to exit. Plaintiffs fell and injured themselves upon leaving the elevator.

Plaintiffs filed suit against New West Federal Savings and American Savings and Loan (collectively New West), successors in ownership of the Hillcrest Medical Center; Auerbach Leasing and Management (Auerbach), the management company responsible for managing the building; and Amtech Reliable Elevator (Amtech), the company that maintained the elevators on the premises of the building (collectively referred to as respondents).

Discovery was undertaken by all parties and quickly the focus became which of the two elevators in the building plaintiffs had been using on the date of the accident. The elevators were located next to each other. One elevator was designed for handicapped access and was larger than the other elevator; as a result the parties and witnesses distinguished between the two by using the terms “large” and “small” elevator.

Plaintiff Kelly had worked for five years in the building and gave testimony on two separate occasions relative to the incident. At her first deposition she testified as follows: “Q. Now, for the incident where you fell, was that also for the smaller elevator, or was that the handicapped elevator. [ID A. The smaller elevator.” At the second session of her deposition she testified as follows: “Q. Okay. And we’re talking about prior incidences with the elevator, and I just wanted to clarify that your incident occurred in the small elevator; isn’t that true? [DO A. Yes. I was trying to just to visualize the larger one on the right, which I believe— [DD Q. As you’re facing it? [DD A. Yes, as I’m facing both elevator doors, and it was on our right. The larger one is on the left. [DO Q. Okay. [DO . . . [DD Q. Is it your testimony, then, that your prior experiences with the elevator misleveling occurred in the same elevator that you had your falling incident in? [DO A. To my recollection, it appears that they both always had problems, doors sticking, the slight little maybe one inch going a little bit past the floors for instances, which I just described, but they both had problems, and I just have no idea and no way of remembering which one did which at any given time.” Later, she stated: “Q. And your incident involved the small elevator; is that correct? [DO A. Correct.”

Plaintiff Caradine testified at her deposition that she was unable to recall which elevator was involved in the incident.

The case was ordered to arbitration on May 19, 1992. Arbitration was originally scheduled for late in September but was continued to October 21, 1992.

On June 12, 1992, the deposition of David Crumley, an employee of Amtech, was taken. At that deposition plaintiffs’ counsel learned that Amtech had gone to the building on the date of the accident to work on the large elevator, which was misleveling. Amtech also returned to the building seven days later to do major repairs on the large elevator. At this deposition plaintiffs’ counsel became concerned that the accident may have occurred on the large elevator and he so advised counsel for respondents.

On September 25, 1992, plaintiffs’ counsel wrote a letter to counsel for Amtech advising her that the large elevator was at issue in the case.

On October 19, 1992, plaintiffs filed a motion for further discovery which was scheduled for hearing on November 10, 1992. In support of the motion plaintiff Kelly filed a declaration which stated: “1.1 am the Plaintiff in this matter. I was injured when I fell while exiting the elevators at the Hillcrest Medical Center on January 6, 1989. [DO 2. At my deposition, I testified I thought the accident happened on the small elevator. On further thought and a review of the photographs, I now am not sure if it was the large or the small elevator.” Based upon the change of focus, plaintiffs’ counsel sought further discovery relating to the large elevator, which Amtech refused to provide. The motion was apparently denied.

Arbitration was held on October 21,1992. An award was filed on October 27, 1992, and plaintiffs timely requested a trial de novo.

Trial was initially scheduled for February 24,1993. The parties exchanged expert witness information and plaintiffs designated Maurice Scott as an elevator expert. Scott was deposed by respondents on January 28, 1993.

On February 4, 1993, plaintiffs’ counsel served a trial brief on respondents. The third item addressed in the trial brief was the confusion relating to which elevator failed and caused the incident: “The accident occurred on January 6, 1989. There were two elevators—a large and a small one. There is a conflict in the evidence as to whether the accident took place on the large or small elevator. Plaintiffs contend the elevator misleveled a foot and a half or more. Defendant Amtech . . . contends that is impossible. Plaintiffs do not offer or seek to offer evidence of subsequent repairs to prove negligence by Defendants. Instead, it is offered to prove the identity of the elevator in which the accident happened. It is also offered to respond to Defendant’s evidence that the elevator was free from defect. . . . Plaintiffs] ha[ve] expert testimony on these issues. The Defense will testify that the accident could not occur.”

On February 24, 1993, Amtech filed a trial brief which set forth a review of the case and its position with regard to the issues to be tried. Pertinent to our discussion is the following passage: “Both of the plaintiffs have testified and repeatedly designated that the elevator involved in their incident was the small elevator. There are two elevators at this location which are different in size. The plaintiffs allege that their incident occurred in the smaller of the two elevators. Their incident reports [and] notes regarding the same specify it was the small elevator. [f[] In summary, the plaintiffs’ version of events vary grossly. Amtech contends that its employees properly maintained, serviced and repaired the elevators at all times. Further, Amtech has no culpability for the alleged incident, even if they did, in fact, ‘occur’ as plaintiffs were not heeding their own safety and failed to watch where they were going as they stepped out of the elevator car.” The trial brief also contends that Amtech had no notice of any dangerous condition of the elevator.

Trial was continued to August 18, 1993.

B. The motions in limine:

On August 18, 1993, the matter was assigned from the master calendar court to a trial department. On the same day, Amtech filed 28 motions in limine. These motions were apparently served on plaintiffs’ counsel by mail on August 17, 1993. Only two of the motions are pertinent to our discussion at this point, motion No. 1 and motion No. 11.

1. Motion No. T.

This motion sought to preclude “plaintiffs, their counsel and/or any witnesses” from producing evidence “that plaintiffs were in or were injured when they stepped out of the larger of the two elevators located at the subject building, or any evidence related to the functioning of the larger elevator.” (Italics added.) In other words, Amtech sought to compel plaintiffs to try the case solely on the basis that the accident occurred on the smaller elevator, urging that any evidence relating to the large elevator was irrelevant. As support for their motion, Amtech provided the court with Kelly’s testimony at her deposition that she believed the incident occurred on the smaller elevator and referenced a notation she made in a report after the accident that the incident occurred on the smaller elevator. The trial court granted the motion.

2. Motion No. IT.

This motion sought to preclude plaintiffs’ expert Maurice Scott “from testifying as an expert [in this case] in any capacity.” While the referenced relief was quite broad, the foundation for the motion was the grant of motion No. 1, limiting the evidence at trial to failure of the small elevator. The argument presented was that at his deposition Mr. Scott’s opinions primarily related to problems with the large elevator and that he had no specific knowledge of or negative opinions relating to the small elevator. The argument was presented as follows: “During Mr. Scott’s deposition, he produced a copy of a letter written to him by . . . counsel for plaintiffs. This letter . . . informs Mr. Scott that plaintiffs were injured on ‘an elevator.’ Further, the letter states that, ‘the documents indicate that on January 13, 1989, major repairs were made on the large elevator. The basic question that I have is whether the major repairs that took place on 1/13/89 could support my clients [sic] testimony that the elevator mislevelled on 1/6/89 and the door opened.’ Nowhere does this letter indicate that plaintiffs were injured in the small elevator, as they repeatedly testified throughout this litigation. Moreover, the letter refers only to the large elevator, which is not at issue in this litigation. Thereafter, the records upon which Scott based his opinions are for the large elevator after the incident at issue. Mr. Scott was denied all records, regarding plaintiffs’ depositions showing the incident occurred in the small elevator and, based thereon, ‘guessed’ that more likely than not, it was the large elevator.”

Initially, the court granted the motion precluding Scott from testifying with regard to any information relating to the large elevator but denied the motion as to the small elevator. However, after further argument, the scope of the motion changed and the court precluded Scott from testifying altogether.

C. The nonsuit.

After the court had effectively excluded any presentation of evidence on liability, plaintiffs’ counsel suggested that the process could be shortened in that he would make an opening statement to the court and the court would then rule on whether he had referenced sufficient evidence to avoid a nonsuit. The court and counsel agreed to proceed in the manner suggested and plaintiffs’ counsel made an opening statement, basically an offer of proof, in the following particulars.

On January 6,1989, his clients, Deborah Kelly and Beverly Caradine went to the Hillcrest Medical Center and “got on ‘a’ elevator” and went to the fourth floor. The elevator misleveled a foot to a foot and a half. As the two plaintiffs stepped off the elevator it began to rise and they each fell, injuring themselves.

Amtech was the repair and maintenance company responsible for the elevators, Auerbach Leasing was the management company for the building and New West was the owner of the building.

In October of 1988, Amtech wrote to Auerbach informing them that both elevators at the building needed extensive repairs. One of the problems addressed was misleveling of the elevators. A repair proposal was included which indicated that the work would cost approximately $100,000 and would include replacement of the control mechanisms on both elevators to control leveling and bring the leveling in line with code requirements, no more than one quarter of an inch.

At this point plaintiffs’ counsel addressed two items which were objected to by counsel for Amtech. First, counsel indicated that Amtech and Auerbach had suppressed the repair documents during discovery. Second, he indicated that his expert Scott would testify that “elevators misleveling at a height of more than one inch—could not occur in the absence of negligence.” He advised the court that he would rely upon the concept of res ipsa loquitur. The trial court had previously granted motion in limine No. 7 limiting testimony of plaintiffs’ experts to opinions rendered during their depositions; therefore, argument on the second issue centered on whether Scott gave such an opinion at the time of his deposition. Amtech’s counsel advised the court that he had not done so and counsel for plaintiffs advised the court: “I would say the general thrust of his testimony—he wasn’t asked that specific question. But I think the general thrust of his testimony at the deposition—and if it’s made part of the record anybody can read it, can draw their own conclusions. [*]Q The general thrust of his testimony is that these elevators would not mislevel at the height that we’re talking about and I say more than one inch because the defense has said these would be impossible for them.”

The court granted a nonsuit. A judgment of nonsuit was entered on September 9, 1993, and this appeal followed.

Discussion

Motions in limine, generally.

In recent years, the use of motions in limine has become more prevalent, primarily by defense counsel to address a number of perceived concerns. It is not uncommon for the trial court to be presented with in excess of 10 separate motions in limine, as here, where Amtech presented 28 such motions to the trial court.

“Motions in limine are a commonly used tool of trial advocacy and management in both criminal and civil cases. Such motions are generally brought at the beginning of trial, although they may also be brought during trial when evidentiary issues are anticipated by the parties. In either event, they are argued by the parties, either orally or in writing or both, and ruled upon by the trial judge. The usual purpose of motions in limine is to preclude the presentation of evidence deemed inadmissible and prejudicial by the moving party. A typical order in limine excludes the challenged evidence and directs counsel, parties, and witnesses not to refer to the excluded matters during trial. (3 Witkin, Cal. Evidence, supra, § 2011 at p. 1969.) ‘The advantage of such motions is to avoid the obviously futile attempt to “unring the bell” in the event a motion to strike is granted in the proceedings before the jury.’ (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 337 [145 Cal.Rptr. 47].) [