I. Factual Background1

2

3 Plaintiffs are Eric Gofnung and Eric E. Gofnung Chiropractice Co. (collectively,

4 “Gofnung”). Compl. ¶ 3. The instant case is a “lemon law” action, seeking the recovery of damages

5 sustained as a result of Eric Gofnung’s purchase of a 2014 BMW M6 convertible from Defendant

6 BMW North America, LLC (“BMW”). Gofnung seeks pursuant to various provisions of the Song-

7 Beverly Act. See generally Compl.

8 II. Procedural History

9 On August 5, 2021, Gofnung filed a complaint against BMW, alleging six causes of action:

10 (1) violation of California Civil Code section 1793.2(d); (2) violation of California Civil Code

11 section 1793.2(b); (3) violation of California Civil Code section 1793.2(A)(3); (4) breach of express

12 written warranty pursuant to California Civil Code sections 1791.2(a), 1794; (5) breach of the

13 implied warranty of merchantability pursuant to California Civil Code sections 1791.1; 1794;

14 1795.5; and (6) violation of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301(3). ECF No. 1.

15 The parties engaged in no dispositive motion practice.

16 On March 22, 2023, BMW filed two (2) motions in limine. ECF Nos. 49, 50. Both are

17 opposed. ECF Nos. 69, 70. On the same day, Gofnung filed seven (7) motions in limine. ECF Nos.

18 52–58. BMW filed oppositions to Gofnung’s first and third motions in limine.2 ECF Nos. 59, 60.

19 The Court held oral argument on the motions at the Final Pretrial Conference (“FPTC”) on April 19, 20 2023. 21 22 23 / / / 24 / / / 25 26 27 1 The following factual background is derived from the Complaint. ECF No. 1 (“Compl.”). 2 The Court notes that it appears BMW has misspelled the name of the District Judge presiding over this case 28 in all of its filings. Counsel is advised to ensure that all future filings have the correct caption, including the 1 III. Applicable Law

2 A. Motions in limine

3 A motion in limine is “a procedural mechanism to limit in advance testimony or evidence in a

4 particular area.” United States v. Heller, 551 F.3d 1108, 1111 (9th Cir. 2009). A party files a motion

5 in limine to exclude anticipated prejudicial evidence before the evidence is introduced at trial. See

6 Luce v. United States, 469 U.S. 38, 40 n.2 (1984). A court has the power to grant such motions

7 pursuant to its “inherent authority to manage trials,” even though such rulings are not explicitly

8 authorized by the Federal Rules of Evidence. Id. at 41 n.4 (citation omitted). Regardless of a court’s

9 initial decision on a motion in limine, it may revisit the issue at trial. Id. at 41–42 (“[E]ven if nothing

10 unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to

11 alter a previous in limine ruling.”).

12 B. Federal Rule of Civil Procedure 26

13 Federal Rule of Civil Procedure 26(a)(1) provides that a:

14 party must, without awaiting a discovery request, provide to the other parties: (i) the name and, if known, the address and telephone number of each individual 15 likely to have discoverable information ... that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment. 16 . . . 17 (iii) a computation of each category of damages claimed by the disclosing party— 18 who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary mate rial, unless privileged or protected from 19 disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered . . . . 20

21 Rule 26(e)(i) imposes a duty on parties to supplement their Rule 26(a) disclosures if the party 22 learns that its disclosures are incomplete or incorrect. Rule 37(c)(1) gives teeth to these requirements 23 by forbidding the use at trial of any information required to be disclosed by Rule 26(a) that is not 24 properly disclosed. Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 25 2001). However, the Court provides two exceptions for when the information may still be 26 introduced: if the parties’ failure to disclose the required information is substantially justified or 27 28 1 harmless. Id. (citing FED. R. CIV. P. 37(c)(1)). “Implicit in Rule 37(c)(1) is that the burden is on the

2 party facing sanctions to prove harmlessness.” Yeti, 259 F.3d at 1107.

3 Federal Rule of Civil Procedure 26(a)(1)(A) requires parties to provide initial disclosures to

4 the opposing parties without awaiting a discovery request. The initial disclosures must include a

5 computation of each category of damages claimed by the disclosing party. FED. R. CIV. P.

6 26(a)(1)(A)(iii).

7 While Rule 26 generally requires a party to provide a computation of such damages,

8 emotional damages, because of their vague and unspecific nature, are oftentimes not readily

9 amenable to computation. See Williams v. Trader Publishing Co., 218 F.3d 481, 486 n. 3 (5th Cir.

10 2000) (“Since compensatory damages for emotional distress are necessarily vague and are generally

11 considered a fact issue for the jury, they may not be amenable to the kind of calculation disclosure

12 contemplated by Rule 26(a)(1)(C).”).

13 C. Federal Rule of Civil Procedure 68(b)

14 Federal Rule of Civil Procedure 68(b) provides that “[e]vidence of an unaccepted offer is not

15 admissible except in a proceeding to determine costs.” FED. R. CIV. P. 68(b).

16 D. Federal Rules of Evidence 401 and 402

17 Federal Rule of Evidence 402 explicitly prohibits the inclusion of “irrelevant” evidence. FED.

18 R. EVID. 402. Federal Rule of Evidence 401 prescribes what evidence qualifies as relevant. FED. R.

19 EVID. 401. It provides that evidence is relevant if: “(a) it has any tendency to make a fact more or 20 less probable than it would be without the evidence; and (b) the fact is of consequence in 21 determining the action.” Id. 401(a)–(b); see also Crawford v. City of Bakersfield, 944 F.3d 1070, 22 1077 (9th Cir. 2019) (“Deciding whether a fact is of consequence in determining the action generally 23 requires considering the substantive issues the case presents.” (internal quotation marks omitted)). 24 Courts have recognized that Rule 401’s “basic standard of relevance . . . is a liberal one.” Crawford, 25 944 F.3d at 1077. 26 E. Federal Rule of Evidence 403 27 Federal Rule of Evidence 403 dictates that “[t]he court may exclude relevant evidence if its 28 probative value is substantially outweighed by a danger of one or more of the following: unfair 1 prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly

2 presenting cumulative evidence.” District courts have broad discretion in assessing admissibility

3 under Rule 403. Sprint/United Mgmt. Co. v. Mendelsohn, 552 US 379, 384 (2008) (finding “wide

4 discretion” necessary because Rule 403 “requires an on-the-spot balancing of probative value and

5 prejudice, potentially to exclude . . . evidence that already has been found to be factually relevant”)

6 (internal quotes omitted); see also Hardeman v. Monsanto Co., 997 F.3d 941, 967 (9th Cir. 2021),

7 cert. denied, 142 S. Ct. 2834 (2022) (“A district court’s Rule 403 determination is subject to great

8 deference, because the considerations arising under Rule 403 are susceptible only to case-by-case

9 determinations, requiring examination of the surrounding facts, circumstances, and issues.”).

10 F. Federal Rule of Evidence 408

11 Federal Rule of Evidence 408 prohibits the inclusion of “conduct or a statement made during

12 compromise negotiations about [a disputed claim or to impeach by a prior inconsistent statement or a

13 contradiction] . . . .” FED. R. EVID. 408(a)(2). However, “the court may admit this evidence for

14 another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay,

15 or proving an effort to obstruct a criminal investigation or prosecution.”

16 G. Federal Rule of Evidence 607

17 Federal Rule of Evidence 607 provides that “[a]ny party, including the party that called the

18 witness, may attack the witness’s credibility.” FED. R. EVID. 607. Despite this broad coverage,

19 impeachment evidence may only be used for impeachment. United States v. Johnson, 802 F.2d 1459, 20 1466 (D.C. Cir. 1986). It cannot be used as a way to present otherwise inadmissible evidence to the 21 jury. Id. 22 H. Federal Rule of Evidence 608 23 Federal Rule of Evidence 608(b) allows for specific instances of dishonest conduct to be 24 “inquired into [on cross-examination] . . . if they are probative of the character for truthfulness or 25 untruthfulness” of the witness. Rule 608(b) operates in conjunction with Rule 403, meaning that as 26 long as the conduct in question tends to show the witness’s character for untruthfulness, said conduct 27 may be raised on cross-examination subject to Rule 403’s requisite balancing test. See United States 28 v. Olsen, 704 F.3d 1172, 1184 n.4 (9th Cir. 2013) (“Rule 608(b) of the Federal Rules of Evidence 1 authorizes courts to permit inquiry into specific instances of conduct during cross-examination if

2 they are probative of the character for untruthfulness of the witness—subject, of course, to the

3 balancing analysis of Rule 403.”).

4 I. Federal Rule of Evidence 609

5 Federal Rule of Evidence 609 governs the admissibility of evidence of a criminal conviction

6 to impeach a witness’s “character for truthfulness.” Rule 609(a)(1) requires admission of evidence

7 “of a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more

8 than one year,” subject to the Rule 403 balancing inquiry. FED. R. EVID. 609(a)(1). Rule 609(a)(2)

9 requires admission of evidence of “any crime regardless of the punishment . . . if the court can

10 readily determine that establishing the elements of the crime required proving—or the witness’s

11 admitting—a dishonest act or false statement.” Id. 609(a)(2).

12 J. Federal Rule of Evidence 701

13 Under Federal Rule of Evidence 701, a lay witness may testify “in the form of an opinion” if

14 it is “(a) rationally based on the perception of the witness; (b) helpful to a clear understanding of the

15 witness’ testimony or the determination of a fact in issue; and (c) not based on scientific, technical,

16 or other specialized knowledge.” FED. R. EVID. 701. “Rule 701(a) contains a personal knowledge

17 requirement.” United States v. Lopez, 762 F.3d 852, 864 (9th Cir. 2014); see also FED. R. EVID. 602

18 (“A witness may testify to a matter only if evidence is introduced sufficient to support a finding that

19 the witness has personal knowledge of the matter”). “In presenting lay opinions, the personal 20 knowledge requirement may be met if the witness can demonstrate firsthand knowledge or 21 observation.” Lopez, 762 F.3d at 864. “A lay witness’s opinion testimony necessarily draws on the 22 witness’s own understanding, including a wealth of personal information, experience, and education, 23 that cannot be placed before the jury.” United States v. Gadson, 763 F.3d 1189, 1208 (9th Cir. 2014). 24 But a lay opinion witness “may not testify based on speculation, rely on hearsay or interpret 25 unambiguous, clear statements.” United States v. Vera, 770 F.3d 1232, 1242 (9th Cir. 2014). This 26 personal knowledge requirement does not apply to expert testimony. FED. R. EVID. 602. 27 / / / 28 / / / 1 K. Federal Rule of Evidence 704

2 It is well-established, however, that expert testimony concerning an ultimate issue is not per

3 se improper. See, e.g., Shad v. Dean Witter Reynolds, Inc., 799 F.2d 525, 529 (9th Cir. 1986).

4 Indeed, Federal Rule of Evidence 704(a) provides that expert testimony that is “otherwise admissible

5 is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” The

6 Ninth Circuit has held that “[a] witness may refer to the law in expressing an opinion without that

7 reference rendering the testimony inadmissible. Indeed, a witness may properly be called upon to aid

8 the jury in understanding the facts in evidence even though reference to those facts is couched in

9 legal terms.” Hangarter v. Provident Life and Acc. Ins. Co., 373 F.3d 998, 1017 (9th Cir. 2004)

10 (internal quotations omitted). However, an expert witness cannot give an opinion as to her legal

11 conclusion, i.e., an opinion on an ultimate issue of law. See, e.g., McHugh v. United Serv. Auto.

12 Ass’n, 164 F.3d 451, 454 (9th Cir. 1999).

13 Thus, an expert may offer testimony on matters that touch on legal issues or unavoidably use

14 legal terminology but must stop short of offering legal opinions and conclusions. See Morgan v. City

15 of Los Angeles, Case No. 2:17-cv-06693-VAP-JEMx, 2020 WL 6048831, at *3 (C.D. Cal. June 23,

16 2020).

17 IV. Discussion

18 A. Gofnung Motions in limine 1 – 7

19 i. Gofnung’s Motion in limine 1, ECF No. 52 20 Gofnung requests that the Court exclude all evidence, references, argument, and testimony 21 pertaining to BMW’s arbitration program because the claim for civil penalty is based upon CAL. CIV. 22 CODE § 1794(c) and “whether or not BMW had an arbitration program is wholly irrelevant to 23 Plaintiffs’ case and at trial.” ECF No. 52 at 4. Gofnung argues that any mention of such evidence 24 would confuse the jury and potentially prejudice Plaintiffs. Id. at 8. BMW opposes this motion in 25 limine contending that such evidence is relevant and admissible because (1) consumer may not assert 26 the presumption under CAL. CIV. CODE § 1793.22(b) unless Gofnung first resorts to a qualified third 27 party dispute resolution process, if existing, and (2) a manufacturer is not liable for a non-willful 28 1 civil penalty under the Song-Beverly Act if it maintains a third party dispute resolution process. ECF

2 No. 59 at 4–5.

3 Gofnung further contends that BMW has the burden of proving whether its arbitration

4 program qualifies under the Song-Beverly Act, and that the Court should preclude evidence

5 supporting any claim that BMW maintained a Qualified Dispute Resolution Program not previously

6 disclosed to Plaintiffs. Id. at 12. BMW counters that the probative value of BMW’s program

7 outweighs any danger of unfair prejudice to plaintiffs as BMW is entitled to prove its defense that it

8 is not “subject to the statutory presumption of a reasonable number of repair attempts and not liable

9 for a non-willful civil penalty. Id. at 5.

10 Although Gofnung’s complaint seeks damages pursuant to both Section 1794(e), see Compl.

11 at ¶ 24 and Section 1794(c), see Compl. at ¶¶ 25, 30, in its Motion, it indicates that it is only seeking

12 damages pursuant to Section 1794(c). Accordingly, the presumption under 1794(e) would not apply

13 and the existence of the arbitration program is irrelevant.

14 As such, Gofnung’s Motion in limine 1 is GRANTED. Gofnung is also prohibited from

15 seeking damages under Section 1794(e).

16 ii. Gofnung’s Motion in limine 2, ECF No. 53

17 Gofnung requests that the Court exclude all evidence, references, argument, testimony, and

18 mention of the availability of attorneys’ fees because the ability to recover attorney’s fees in this

19 action is “irrelevant to the elements necessary to establish liability,” and informing the jury that 20 Plaintiffs will recover such fees is misleading, confusing, and prejudicial. ECF No. 53 at 2–3. This 21 request is unopposed. 22 Gofnung cites to Federal Rule of Evidence 402 to support the exclusion of this evidence, 23 arguing that “evidence which is not relevant is not admissible” because Gofnung’s right to recover 24 attorney’s fees is irrelevant until after Gofnung prevails on the merits. ECF No. 53 at 4. 25 Accordingly, the Court hereby GRANTS Gofnung’s Motion in limine 2 for the reasons 26 requested. 27 / / / 28 / / / 1 iii. Gofnung’s Motion in limine 3, ECF No. 54

2 Gofnung requests that the Court exclude all evidence, testimony, or mention of Gofnung’s

3 application for financing because it is “irrelevant to the elements necessary to establish liability,”

4 and is misleading, confusing, and prejudicial to a jury. ECF No. 54 at 2–3. BMW opposes this

5 motion in limine, contending that such evidence is relevant and admissible with respect to (1)

6 damages, (2) Gofnung’s motive for forcing BMW to repurchase a non-defective vehicle, (3)

7 showing that Gofnung’s allegation as to the defective vehicle is a mere pretext, and (4) showing

8 Gofnung’s bias and impeaching Gofnung’s credibility. ECF No. 60 at 3–4.

9 Gofnung cites to FED. R. EVID. 402 to support the exclusion of this evidence, arguing that

10 “evidence which is not relevant is not admissible” and even if Gofnung’s application for financing is

11 relevant, it should be excluded “if its probative value is substantially outweighed by unfair

12 prejudice.” ECF No. 54 at 4. Additionally, Gofnung contends that introduction of such evidence

13 would improperly influence the jury in that Gofnung has financial difficulties leading to an ulterior

14 motive to filing this action. Id. at 5.

15 Whether Gofnung has some motive to fabricate his claims is a proper area for examination at

16 trial. See CACI No. 107 (“In deciding whether to believe a witness’s testimony, you may

17 consider . . . Did the witness have any reason to say something that was not true? For example, did

18 the witness . . . have a personal stake in how this case is decided?”). Therefore, the terms of his

19 financing and whether that might have motivated him to fabricate his claims are highly relevant 20 and—if prejudicial at all—not more prejudicial than probative. 21 Accordingly, the Court hereby DENIES Gofnung’s Motion in limine 3. As discussed at the 22 hearing, the parties shall meet and confer on appropriate redactions to the financing application that 23 BMW plans to introduce. 24 iv. Gofnung’s Motion in limine 4, ECF No. 55 25 Gofnung requests that the Court exclude any references to attorney marketing or advertising 26 because such evidence is irrelevant to the elements necessary to establish liability in this action and 27 is “misleading, confusing, and prejudicial.” ECF No. 55 at 2–3. This request is unopposed. 28 1 Gofnung cites to FED. R. EVID. 402 to support the exclusion of this evidence, arguing that

2 “evidence which is not relevant is not admissible” because attorney marketing and advertising is not

3 relevant to the underlying claims and is unduly prejudicial to plaintiffs as it may distract the jury

4 from the facts of the case. Id. at 5.

5 Accordingly, the Court hereby GRANTS Gofnung’s Motion in limine 4 for the reasons

6 requested.

7 v. Gofnung’s Motion in limine 5, ECF No. 56

8 Gofnung requests that the Court exclude any testimony or argument that the entire Subject

9 Vehicle was conformed to warranty due to repair of a specific component because such evidence is

10 unduly prejudicial and carries a high risk of jury confusion. ECF No. 56 at 2–3. BMW opposes this

11 motion in limine, contending that such evidence is relevant and admissible to show that (1) CAL.

12 CIV. CODE § 1793.2 does not provide a remedy to Gofnung’s claim for relief, (2) the question of

13 whether the alleged defect was repaired after a reasonable number of attempts is an issue of fact for

14 the jury, and (3) Gofnung was not specific in what evidence they seek to object.

15 As Gofnung points out, Section 1793.2 is clear that a plaintiff is entitled to relief if “the

16 manufacturer . . . does not service or repair the goods to conform to the applicable express warranties

17 after a reasonable number of attempts.” CIV. CODE § 1793.2(d) (emphasis added.) There is no

18 support in the statute for BMW’s reading that the plaintiff can only recover if a reasonable number

19 of attempts were permitted for each individual defect. The authority cited by BMW—Silvio v. Ford 20 Motor Co., 135 Cal. Rptr. 2d 846 (Ct. App. 2003)—is inapposite as it concerned a factual scenario 21 where only one attempt was made; the question of whether multiple attempts for each defect was 22 required was not presented. In addition the relevant jury instruction—CACI No. 3201—supports 23 Gofnung’s reading. CACI No. 3201 (“To establish this clam, [name of plaintiff] must prove all of 24 the following: . . . That [name of defendant] or its authorized repair facility failed to repair the 25 vehicle to match the written warranty after a reasonable number of opportunities to do so . . . .”) 26 (emphasis added). 27 BMW’s arguments at the hearing were unavailing and contrary to the clear meaning of the 28 statute. Accordingly, the Court hereby GRANTS Gofnung’s Motion in limine 5. 1 vi. Gofnung’s Motion in limine 6, ECF No. 57

2 Gofnung requests that the Court exclude any testimony or evidence that Gofnung was

3 required to revoke acceptance of the Subject Vehicle within any specified timeframe to recover

4 restitution damages for a breach of implied warranty of merchantability claim because it is “contrary

5 to applicable law, unduly prejudicial and carries a high risk of jury confusion.” ECF No. 57 at 3.

6 BMW opposes this motion in limine, contending that such evidence is admissible and relevant

7 because the measure of damages for breach of implied warranty is “dependent on revocation of

8 acceptance.” ECF No. 63 at 3.

9 Gofnung’s cites Mexia to contend that while the UCC expressly requires a timely revocation

10 of acceptance of the goods, the Song-Beverly Act does not, making the introduction of such

11 evidence is contrary to the applicable law. ECF No. 57 at 5. See Mexia v. Rinker Boat Co., 95 Cal.

12 Rptr. 3rd 285, 290 (Ct. App. 2009).

13 At the hearing, BMW elaborated on the justification for its position. First, Section 1794(b)(1)

14 of the Civil Code states the following:

15 Where the buyer has rightfully rejected or justifiably revoked acceptance of the goods

or has exercised any right to cancel the sale, Sections 2711, 2712, and 2713 of the 16 Commercial Code shall apply. 17 CIV. CODE § 1794(b) (emphasis added). Second, Section 2711 of Commercial Code reads as follows 18 in relevant part: 19 (1) Where the seller fails to make delivery or repudiates or the buyer rightfully rejects 20 or justifiably revokes acceptance then with respect to any goods involved, and with respect to the whole if the breach goes to the whole contract (Section 2612), the buyer 21 may cancel and whether or not he has done so may in addition to recovering so much of the price as has been paid[.] 22 Third, Section 2608 of the Commercial Code reads as follows in relevant part: 23 (1) The buyer may revoke his acceptance of a lot or commercial unit whose 24 nonconformity substantially impairs its value to him if he has accepted it

25 . . . . (2) Revocation of acceptance must occur within a reasonable time after the buyer 26 discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective 27 until the buyer notifies the seller of it. 28 1 As a result, according to BMW, this Court must read the requirement of “justifiable

2 revocation” in one section of the Commercial Code to include the requirement of timely revocation

3 that is another section of the Commercial Code. Put another way, the Court must look to Section

4 2608 of the Commercial Code to understand the meaning of Section 2711 of the Commercial Code

5 and ultimately the meaning of Section 1794 of the Commercial Code which refers to Section 2711 of

6 the Commercial Code.

7 Although this argument has some superficial appeal, it ignores the fact that the operative

8 condition is set forth in Section 1794 of the Civil Code, namely “where the buyer has . . . justifiably

9 revoked acceptance.” There is nothing in Section 1794 or the Song-Beverly Act more generally to

10 suggest that the meaning of “justifiably revoked” is to be determined with reference to the

11 Commercial Code and specifically Section 2608 of the Commercial Code. The legislature could

12 have, but did not explicitly define “justifiably revoked” to mean “timely revoked under the

13 requirements of Section 2608 of the Commercial Code.3 This Court therefore declines to read the

14 statute in this manner.

15 In short, the Song-Beverly Act is clear on the requirements for damages and timely

16 revocation under acceptance is not among them. See CIV. CODE § 1793.2(d) and CIV. CODE §

17 1794(b).

18 Accordingly, the Court hereby GRANTS Gofnung’s Motion in limine 6.

19 vii. Gofnung’s Motion in limine 7, ECF No. 58 20 Gofnung requests that the Court exclude any reference to the parties’ settlement discussions. 21 ECF No. 58. This request is unopposed. 22 Gofnung cites to Federal Rule of Civil Procedure 68 to support the exclusion of this 23 evidence, arguing that “[s]ettlement discussions, including Rule 68 offers, are not relevant” to the 24 questions presented in this case, namely “whether the Subject Vehicle in question had defects, 25 whether those defects existed at the time of the sale to Plaintiffs, whether defects were repaired by 26 27 3 The Court also notes that Sections 2608 and 2711 were both enacted together in 1963 as part of an Act to establish a Commercial Code, to be known as the Uniform Commercial Code. This is distinct from the Song- 28 1 Defendant in a reasonable number of attempts, and whether Defendant’s refusal to comply with the

2 Song-Beverly Act was willful.” ECF No. 58 at 4–5. While Gofnung’s contentions are correct, the

3 Court also finds that “conduct or evidence” made during settlement negotiations must be excluded if

4 presented for “a disputed claim or to impeach.” FED. R. EVID. 408.

5 Accordingly, the Court hereby GRANTS Gofnung’s Motion in limine 7 for the reasons

6 requested. The Court also EXCLUDES the parties from introducing any conduct or evidence related

7 to the settlement negotiations for the purpose of impeachment or to dispute a claim.

8 B. BMW Motions in limine 1–2

9 i. BMW Motion in limine 1, ECF No. 49

10 BMW requests that the Court prohibit Gofnung from presenting evidence or argument

11 relating to damages because Gofnung “did not provide a computation of any other category of

12 damages as required by [Federal Rule of Civil Procedure] 26.” ECF No. 49 at 3. BMW argues that

13 Gofnung failed to serve Rule 26 disclosures and “never provided a computation of any category of

14 damages” making it impossible for “BMW . . . [to] determine what damages Plaintiffs are claiming,

15 simply by looking at documents.” Id. Gofnung opposes this motion in limine, contending that he

16 served the Rule 26 disclosures on January 7, 2022 which explicitly state the sought after damages.

17 ECF No. 69 at 2–4; Declaration of Caitlin Scott, ECF No. 69-1 (“Scott Decl.”) ¶ 3; Ex. 1, Scott

18 Decl. (“Rule 26 Report”)

19 Upon consideration of the statements made in the Scott Declaration and examination of Rule 20 26 Report, see Ex. 1 at 4–6, the Court finds BMW’s allegations are not supported by the record. 21 Accordingly, BMW’s motion in limine 1 is DENIED. 22 ii. BMW Motion in limine 2, ECF No. 50 23 BMW requests that the Court exclude all testimony from Gofnung’s expert, Randall Bounds 24 (“Bounds”) on the following grounds: 25 1. Bounds did not personally “observe or diagnose a defect in Plaintiffs’ vehicle, or even 26 inspect Plaintiffs’ vehicle”, and thus should not be granted leave to testify to what was 27 communicated to him by Gofnung. ECF No. 50 at 7. 28 1 2. Bounds “lacks the specialized training and experience specific to the 2014 BMW M6

2 convertible [at issue here] that would be helpful to the trier of fact” and failed to “do

3 anything to familiarize himself with the Vehicle”; Id. at 7–8;

4 3. Bounds lacks the basis for asserting that the vehicle is defective. Id. at 8; and

5 4. Bounds’s criticism of the repair facility should be excluded as “[t]he issue before the jury

6 . . . in this case is whether Plaintiff’s vehicle had a defect covered by the warranty, that

7 substantially impaired the use, value or safety of the Vehicle, that BMW . . . was unable

8 to repair after a reasonable number of attempts.” Id.

9 5. Portions of Bounds’s testimony are inadmissible hearsay pursuant Federal Rules of

10 Evidence 804; Bounds’s “opinions, including his opinion that there was an unrepaired

11 defect in Plaintiffs’ vehicle, is based on his conversation with Plaintiffs, which is not a

12 proper subject of, or basis for, expert testimony under Federal Rules of Evidence 702 and

13 703”; portions of his testimony are “irrelevant and misleading” due to the subject matter

14 of the case.” Id. at 9–10.

15 In response, Gofnung argues that this motion in limine should be denied in its entirety as 16 BMW “mischaracterizes . . . Bounds as a ‘scientific expert’ rather than a ‘technical expert’” and 17 misapplies the Daubert standard as a result. ECF No. 70 at 4. Gofnung argues that Bounds is highly 18 knowledgeable in the areas of “automotive theory, diagnosis, repair, and maintenance” and offers 19 expert testimony based on the case record and Gofnung’s testimony and statements. Id. at 5–6. 20 Gofnung further argues that BMW’s reliance on Federal Rule of Evidence 702 only relates to 21 “scientific evidence” and is inapplicable 22 Federal Rule of Evidence 702 allows a witness to testify as an expert “[i]f scientific, 23 technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to 24 determine a fact in issue.” United States v. Alonso, 48 F.3d 1536, 1540 (9th Cir. 1995) (quoting FED. 25

R. EVID. 702). The Court finds that the witness offered is a designated expert with appropriate

26 credentials. BMW’s arguments go towards factual disagreement, bias, and weight, but not his actual 27 qualifications or an absence of the basis for opinions. BMW confirmed this at the hearing, and can 28 1 seek—through cross-examination and argument at trial—to question the basis for the expert’s

2 opinions.

3 Accordingly, the Court DENIES BMW’s Motion in limine 2.

4

5 IT IS SO ORDERED.

6

7 Dated: May 4, 2023 ___________________________________

8 MAAME EWUSI-MENSAH FRIMPONG

9 United States District Judge

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