Filed 9/23/16 Platero v. BRK Brands CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


ISMENIA PLATERO, et al.,                                             B264919

         Plaintiffs and Appellants,                                  (Los Angeles County
                                                                     Super. Ct. No. BC445557)
         v.

BRK BRANDS, INC.,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Elizabeth R. Feffer, Judge. Reversed.
         Law Office of Martin L. Stanley, Martin Louis Stanley; Esner, Chang & Boyer,
Stuart B. Esner, Joseph S. Persoff, for Plaintiffs and Appellants.
         Arent Fox, Gary Wolensky, Anne Marie Ellis; Cozen O’Connor, Robert W.
Hayes, Jillian T. Flax, for Defendant and Respondent.
                                          _______________________
       Plaintiffs and appellants Ismenia Platero and Ronald Marroquin appeal from a
judgment entered in favor of defendant and respondent manufacturer BRK Brands, Inc.,
following an order excluding the plaintiffs’ expert testimony in this product liability
action. On appeal, Platero and Marroquin contend: 1) the trial court abused its discretion
by granting motions in limine that terminated their case solely because their oppositions
to the motions were filed late, 2) the motions should have been denied on their merits,
and 3) their motion for relief under the Code of Civil Procedure section 4731 should have
been granted. We conclude that under the circumstances, the trial court abused its
discretion by imposing the equivalent of terminating sanctions without first considering
the imposition of less severe sanctions for the untimely opposition papers. We reverse.


                   FACTS AND PROCEDURAL BACKGROUND


Allegations of the Complaint


       The original complaint in this case was filed on September 14, 2010. Platero and
Marroquin filed the operative second amended complaint on November 29, 2011, against
multiple defendants, including BRK as a Doe defendant. The complaint alleged causes
of action against BRK for negligence, products liability, wrongful death, and premises
liability as follows. On August 12, 2010, a candle caused a bedroom fire, killing
plaintiffs’ 15-year-old twins Erick and Edward Marroquin. The smoke detector in the
apartment never sounded. BRK negligently developed, manufactured, marketed, and
distributed the defective smoke detector.


Proceedings Prior to Final Status Conference and Trial


       In July 2012, defendants other than BRK brought motions to compel plaintiffs’

       1All further statutory references are to the Code of Civil Procedure, unless
otherwise stated.

                                             2
responses to interrogatories, which plaintiffs did not oppose and the trial court granted.
By August 2013, all of the defendants other than BRK had settled with the plaintiffs or
had summary judgment entered in their favor. On August 30, 2013, plaintiffs failed to
appear at a trial setting conference and the trial court set an order to show cause for
dismissal or sanctions. The minute order reflects that plaintiffs’ counsel joined the court-
call line later and was told the matter had already been heard.
       Platero and Marroquin submitted attorney Gilbert Geilim’s declaration in response
to the order to show cause. Geilim declared that he was at a convention for consumer
attorneys in Las Vegas from August 28 through September 1, 2013. Co-counsel Martin
Stanley was aware Geilim was out of town and planned to appear for the trial setting
conference. Stanley was diagnosed with pneumonia and could not attend, but Geilim did
not receive that information until he had left a seminar and it was too late for him to make
an appearance.
       BRK brought a motion for summary judgment, or in the alternative, summary
adjudication. On October 30, 2013, the trial court found triable issues of fact existed and
denied the motion. On November 26, 2013, plaintiffs served an unusually large number
of poorly phrased discovery requests, attempting in part to address issues raised during
the summary judgment proceedings. Responses were due on New Year’s Eve, but the
plaintiffs agreed to an extension of the deadline. BRK sought a protective order limiting
plaintiffs’ written discovery, which the trial court granted in part and denied in part.
       The parties were unable to depose expert witnesses by the June 2, 2014 deadline.
On July 28, 2014, Platero and Marroquin filed a joint ex parte application for a fourth
continuance of the trial date, which was stipulated to by the parties. Attorney Geilim
submitted his declaration stating that plaintiffs’ lead trial counsel was beginning a
complex trial in August 2014, and BRK’s counsel was scheduled to start a trial in
September 2014. Attorney Jeffrey Lamb, who was the lead associate, had been attending
to his family for several weeks and had been unable to work on any cases due to the
suicide of his brother’s fiancé. Geilim had been out of the office as well, due to surgery
following an auto accident. He required additional surgery in September 2014.


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       At a hearing on the ex parte application on July 28, 2014, Judge Robert Hess noted
that both parties expressly represented that they would be available and ready for trial on
the rescheduled date without fail. Judge Hess continued the final status conference to
April 15, 2015, and the trial date to April 21, 2015. He stated that no further
continuances would be granted for any reason unless initiated by the court.
       On March 20, 2015, BRK filed an ex parte application to continue the trial date,
which Judge Elizabeth Feffer denied without hearing argument. On March 23, 2015,
BRK filed 11 motions in limine, including a motion to exclude or limit the testimony of
electrical engineering expert B. Don Russell and preclude him from testifying at trial.
Russell teaches electrical engineering at Texas A&M University. In a declaration, he
stated that he had conducted experiments showing differences in the detection
capabilities of two types of smoke detectors based on the nature of the fire conditions.
Ionization smoke detectors like the one in Platero’s apartment require sufficient smoke
levels and a minimum velocity across the face of the detector. Photoelectric detectors,
which are the other type available on the market, respond to the level of smoke and are
less sensitive to the movement of the smoke.
       BRK argued that Russell lacked the qualifications to conduct scientifically reliable
testing of the response times of smoke alarms to determine whether the performance
characteristics made it an adequate safety device. He is not an expert in fire protection
engineering or combustion science. His opinion that ionization smoke alarms were
inadequate required an assessment of the movement of fires under the circumstances, the
tenability of the premises, and the human reaction times, for which he was not qualified.
Russell has conceded that fire protection engineers, not electrical engineers, are qualified
to certify fire alarm and suppression systems, to design building to assure compliance
with fire codes, and to undertake fire risk analyses.
       BRK also argued that the accepted methodology for determining the
appropriateness of a smoke alarm was whether it reliably provided adequate escape time.
Russell had focused solely on the response times of different types of alarms to
smoldering combustion fires and did not consider whether the escape time provided by


                                              4
ionization smoke detectors was adequate. He had not demonstrated a consistent
performance difference between photoelectric and ionization smoke alarms. Reputable
task groups have rejected Russell’s methodology and his conclusion that ionization
smoke alarms are inadequate, finding instead that smoke alarms using either smoke
detection technology provide acceptable response times for smoldering fires.
       In addition, Russell lacked the qualifications to determine why the device in the
boys’ bedroom failed to respond. His opinions about whether the alarm failed to sound
because of either a manufacturing defect or insensitivity to smoke were inherently
speculative. BRK argued that there were many other reasons that the alarm did not
sound, including that Platero disabled it or it was improperly installed, maintained, or
damaged. Moreover, there was no causation between the alleged defect and the harm in
this case. Under his own theory, there was a flame component that should have sounded
the alarm. In support of the motion to exclude Russell’s testimony, BRK submitted the
declaration of its fire protection engineering expert and copies of task force reports.
       BRK filed one additional motion in limine on March 26, 2015, seeking to exclude
or limit the testimony of fire protection engineering expert Christopher Lautenberger on
the ground that his opinions were speculative. Platero had testified in her deposition that
she woke up around 1:00 a.m. when she heard screaming and went to the boys’ room.
Lautenberger assumed in his deposition testimony that the boys failed to respond to
Platero when she entered their bedroom and found a flaming fire, because they had been
incapacitated by toxic gases. He modeled two possible scenarios in which the wax from
the candle on their dresser may have ignited a fire which smoldered for a long period of
time before becoming a flaming fire. In his opinion, the smoldering fire would have
generated sufficient toxic gases to incapacitate the boys. BRK argued, however, that
Lautenberger’s assumption that the boys were incapacitated by toxic gases was
inconsistent with Platero’s deposition testimony that the door to the bedroom was
partially open, and that she could not see them, but one of the boys yelled at her from the
bed through the smoke. The toxicologist testified that the boys likely died from soot
inhalation, and there was no evidence of the amount of soot generated by different types


                                              5
of fires. Lautenberger’s modeling does not support his opinion that the boys would have
been incapacitated from thermal injuries in a flaming fire before incapacitating levels of
toxic gases were reached. His opinion that a smoke alarm would have sounded in time
for the boys to escape was speculative. BRK filed copies of Platero’s deposition
testimony and other evidence to support the motion to exclude the Lautenberger’s
testimony.
       Platero and Marroquin filed oppositions to the motions in limine on April 14,
2015. In their opposition to the motion to exclude Russell’s testimony, they argued that
the scope of the motion was vague and overbroad. Although Russell was not a
combustion science expert, he was relying upon Lautenberger’s expert testimony about
the type of fire in this case. The issues raised in BRK’s motion went to the weight and
not the admissibility of Russell’s testimony, and the in limine motion seeking to exclude
Russell’s testimony in its entirety amounted to a motion for summary judgment.
       In their opposition to the motion to exclude Lautenberger’s testimony, they argued
that Lautenberger’s opinions were based on Platero’s testimony and the fire report.
Lautenberger had stated his opinion that it was a smoldering fire within the degree of
certainty required for expert testimony. The motion was vague and overbroad, because it
failed to identify any particular testimony to exclude and attempted to exclude the
entirety of Lautenberger’s testimony, which would unfairly hinder the plaintiffs’ ability
to present their case and amounted to a motion for summary judgment. Platero and
Marroquin submitted the deposition testimony of Platero, Lautenberger, and Russell in
support of their opposition to the motions in limine.
       On April 15, 2015, BRK filed an ex parte application for terminating sanctions
against Platero and Marroquin, or in the alternative evidentiary sanctions, for failing to
provide BRK with any of their trial exhibits. BRK sought evidentiary sanctions,
including exclusion of the plaintiffs’ exhibits, concession to the authenticity and
admissibility of BRK’s exhibits, and an opportunity to amend BRK’s pre-trial filings.
BRK noted that plaintiffs filed their opposition to BRK’s motions in limine two weeks
after the statutory deadline of April 2, 2015, and as late as 4:30 p.m. on the day before the


                                              6
hearing on the motions.


Final Status Conference and Trial


       Judge Feffer considered the ex parte application and the motions in limine at the
final status conference on April 15, 2015. Judge Feffer had not received the plaintiffs’
oppositions to the motions in limine. Stanley represented that he had been in a 3-week
trial in Ventura that ended on April 2 or 3, 2015, and he then left on a prescheduled
vacation to visit colleges with his daughter before she made her final decision. Lamb’s
wife had a baby on April 4, 2015, and he had been doing his best to complete the trial
work while attending to his responsibilities at home. Geilim had been unable to work the
previous week due to a back injury. The joint witness list, exhibit list, and jury
instruction list were all filed on April 10, 2015. Oppositions to the motions in limine had
been filed. Stanley apologized for being a few days behind with a few items.
       During the hearing, Judge Feffer received the oppositions that had been filed with
the court the day before. She asked if plaintiffs were ready to try the case and Stanley
answered yes. He had expected to argue the motions in limine on the first day of trial,
but he was prepared to argue the motions and try the case immediately.
       BRK’s counsel Gary Wolensky noted that all but one of BRK’s motions in limine
were filed by March 24, 2015, which was the deadline specified under the superior
court’s local rules. Plaintiffs’ oppositions to the motions in limine were hand delivered to
his office at 4:34 p.m. the previous day and he received a disk with the plaintiffs’ exhibits
that morning. BRK was prejudiced, because the plaintiffs had received BRK’s pretrial
filings a week earlier and BRK was just receiving plaintiffs’ information. BRK sought
terminating sanctions or evidentiary sanctions regarding plaintiffs’ exhibits as stated in
the ex parte application.
       Judge Feffer noted that plaintiffs’ pretrial filings were not in compliance because
they were not jointly prepared. The court’s tentative ruling was to grant the motions in
limine, because they were unopposed, but the court would look at the untimely


                                              7
oppositions, allow BRK to file replies, and hear further argument on April 21, 2015. At
one point, Stanley became confused about the dates at issue and suggested that he may
have been in trial until as recently as April 9, 2015, but stated that he needed to verify the
dates. The court also set an order to show cause regarding why Platero and Marroquin
should not be precluded from introducing exhibits for failure to comply with local rules.
       BRK filed replies to plaintiffs’ oppositions to the motions in limine, arguing that
the plaintiffs had merely recited general law and failed to meaningfully oppose the
motions.
       On April 20, 2015, Platero and Marroquin submitted Geilim’s declaration in
opposition to the ex parte application for sanctions regarding the plaintiffs’ exhibits.
Geilim declared that he had a back injury on April 1, 2015. His doctor prescribed
steroids, strong pain medication, and a week of bed rest, which prevented Geilim from
contributing to the preparation work for the upcoming trial in the instant case. However,
he met with BRK’s counsel on April 17, 2015, to confer on witness lists and exhibits. He
never attempted to delay or subvert the legal process.
       They also filed Stanley’s declaration. Stanley had been mistaken in informing the
court that his trial ended on April 3, 2015. He was engaged in a jury trial from March 3
through March 27, 2015. On March 28, 29, and 30, 2015, Stanley and attorney Lamb
finalized an appeal due March 30, 2015. On March 31, 2015, Stanley took his 91-year-
old father to doctors for tests. Stanley is a divorced parent. He visited colleges with his
daughter for two days, then took his father for further testing on April 3, 2015. From
April 4 through April 7, 2015, he cared for his father. He visited additional colleges with
his daughter from April 8 through April 10, 2015. In his experience, exhibit and witness
lists have been modified until the date of trial, and at times, during trial. He did not
believe there was any prejudice to any party. In fact, BRK had just added exhibits.
Stanley acted in good faith and did his best to comply with the deadlines in the case.
       Plaintiffs submitted Lamb’s declaration as well. Lamb was the second counsel in
the Ventura trial from March 3 through March 27, 2015. On March 28, 29 and 30, he
worked with Stanley to finalize the appeal. His wife, who was 38.5 weeks pregnant with


                                              8
their second child, had been experiencing contractions. On March 30, 2015, her
obstetrician instructed him to stay as close to home as possible. His wife went to the
hospital on April 3, 2015, and gave birth the following day. He assisted her at home and
took care of the children afterward. On April 10, 2015, he sent plaintiffs’ witness list,
exhibit list and proposed joint statement of the case to BRK before 2:00 p.m., which was
the date the pretrial filings were due, but BRK’s counsel’s office informed him that they
had already sent their documents for filing. Lamb attached copies of documents proving
BRK had received plaintiffs’ pretrial documents on April 10, 2015, and had
acknowledged receiving them.
       On April 20, 2015, BRK submitted Wolensky’s declaration stating that the court
docket in the Ventura case reflected a verdict was reached on March 26, 2015.
       On April 21, 2015, Judge Feffer was engaged in another trial and ordered the
parties to return on April 23, 2015. She decided to hear argument and rule on the
motions in limine and the order to show cause, to assist the parties in their preparation for
trial and help them provide more realistic time estimates. BRK’s counsel also requested
the court’s indulgence on a particular date during trial, because one of BRK’s attorneys
needed to attend his daughter’s graduation from law school in Philadelphia.
       Argument was held on the order to show cause why Platero and Marroquin should
not be precluded from introducing exhibits for failure to comply with local rules. The
court noted that Stanley had represented to the court that plaintiffs’ pretrial filings were
untimely in part because he was engaged in a trial until April 3, 2015, but in fact, the trial
concluded on March 27, 2015. The court found Stanley should have known when his
trial finished, and he had an additional week for preparation for the present trial. Stanley
apologized for his mistake with the dates and noted that Lamb handled the paperwork in
the case. He mentioned that BRK had provided additional trial exhibits that very
morning. BRK responded that the new exhibits were prepared in response to exhibits
created by plaintiffs’ experts.
       Judge Feffer relied on Judge Hess’s July 28, 2014 order stating that it was the
fourth continuance and all parties had represented they would be available and ready on


                                              9
the dates in April 2015. The court found that plaintiffs’ attorneys were aware of the
conflicts in their schedule when they represented that they would be ready for the final
status conference on April 15, 2015, and the trial date on April 21, 2015. Lamb
explained that the baby’s due date was not known, because the baby had just been
conceived. The court found plaintiffs’ counsel were not ready for the final status
conference on April 15, 2015, or the trial date. For those reasons, the court granted
BRK’s ex parte motion and precluded plaintiffs from presenting and admitting any
exhibits at trial.
       By ruling that no timely opposition was received, the court granted all of BRK’s
motions in limine, including the exclusion of Russell’s and Lautenberger’s testimony.
Plaintiffs had filed two motions in limine, which were denied because they were not
timely filed. The court ordered the parties to meet and confer on reasonable time
estimates for the remaining witnesses who were not subject to the in limine rulings. The
statement of the case, the instructions and a draft of the verdict would be finalized at the
next hearing date. The court reiterated that there was no good cause for plaintiffs,
represented by three attorneys, to have failed to be ready for the final status conference of
April 15, 2015, or the trial date. The court denied BRK’s ex parte application for
terminating sanctions in connection with plaintiffs’ failure to exchange trial exhibits.
       Platero and Marroquin filed a request for relief under section 473, seeking to have
the motions in limine heard on their merits. They filed an extensive offer of proof as to
their experts’ testimony. The court found the submission was not properly before the
court and not timely. It was not presented as a noticed motion or an ex parte application.
The plaintiffs were seeking reconsideration of the court’s ruling on the motions in limine
with no showing of exigent circumstances, excusable neglect, new facts, or new law. The
court denied the application for relief.
       On April 23, 2015, the trial court reiterated that the motions in limine were not
heard on their merits and the court had granted the motions in limine because plaintiffs
failed to file timely oppositions. The parties agreed that the plaintiffs could not prove
their case without the expert testimony of Lautenberger or Russell, and therefore, the


                                             10
parties stipulated that the trial court enter a judgment of nonsuit pursuant to section 581,
subdivision (c), reserving their appellate rights. On June 8, 2015, the trial court entered
judgment in favor of BRK pursuant to the stipulation.
       Platero and Marroquin filed a timely notice of appeal from the June 8, 2015
judgment.


                                       DISCUSSION


       Platero and Marroquin contend that the trial court abused its discretion by granting
two motions in limine excluding the testimony of their expert witnesses and precluding
plaintiffs from proving their case at trial solely because their oppositions to the motions
were filed late. We agree.
       “‘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 [(3d ed. 1986)] § 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.” [Citation.] [¶] Motions in limine
serve other purposes as well. They permit more careful consideration of evidentiary
issues than would take place in the heat of battle during trial. They minimize side-bar
conferences and disruptions during trial, allowing for an uninterrupted flow of evidence.
Finally, by resolving potentially critical issues at the outset, they enhance the efficiency
of trials and promote settlements. [Citation.]’ [Citation.]” (Kelly v. New West Federal
Savings (1996) 49 Cal.App.4th 659, 669-670.)


                                              11
       “Trial courts are responsible for the monitoring of civil cases for the purpose of
expediting them through the system. [Citations.]” (Wantuch v. Davis (1995) 32
Cal.App.4th 786, 794.) “In order to facilitate the expeditious processing of civil cases,
parties may be sanctioned for failure to comply with delay-reduction rules or court
orders. [Citations.] These sanctions may include terminating sanctions, such as the
striking of pleadings. [Citation.]” (Id. at pp. 794-795.) “However, the delay-reduction
rules and the policy of expeditious processing of civil cases do not override, in all
situations, the trial court’s obligation to hear cases on the merits. [Citations.] Preventing
parties from presenting their cases on the merits is a drastic measure; terminating
sanctions should only be ordered when there has been previous noncompliance with a
rule or order and it appears a less severe sanction would not be effective. [Citations.]
Terminating sanctions should not be ordered as a first response when noncompliance is
through no fault of the party. [Citation.]” (Id. at p. 795.)
       “Like many evidentiary rulings, orders on motions in limine are generally
reviewed for abuse of discretion. [Citation.]” (McMillin Companies, LLC v. American
Safety Indemnity Co. (2015) 233 Cal.App.4th 518, 530.)
       In this case, the trial court had already found triable issues of fact existed and
denied BRK’s motion for summary judgment or summary adjudication. Attorney Lamb,
who had the primary responsibility for preparing written responses to the motions in
limine, was juggling childcare responsibilities with work obligations due to a new baby in
his family, which was not anticipated when the trial court set the trial date in April 2015
and ordered that no further continuances would be considered. Platero and Marroquin
prepared and filed late oppositions to the motions in limine, appeared for the final status
conference, and announced they were ready for oral argument and for trial. This is not a
case similar to those cited by BRK on appeal in which the plaintiffs agreed to the
exclusion of evidence (cf. Mangano v. Verity, Inc. (2009) 179 Cal.App.4th 217, 221), or
one where the plaintiffs failed to appear at the hearing or make any argument that the
court should consider their untimely written opposition (cf. Bell v. American Title Ins.
Co. (1991) 226 Cal.App.3d 1589, 1602). The trial court denied BRK’s application for


                                              12
terminating sanctions, but the order granting the motions in limine to exclude expert
witness testimony in a product liability action was equivalent to a terminating sanction
for the failure to file timely opposition. The order excluding plaintiffs’ expert witness
testimony, which effectively terminated plaintiffs’ case, did not follow any
noncompliance with a prior order or consideration of less severe sanctions. While the
untimely filing of plaintiff’s responses to the motions in limine was undoubtedly both
inconvenient and burdensome to both BRK and the trial court, the harm flowing from the
lack of diligence was not sufficient to warrant a terminating sanction. The trial court’s
ruling foreclosed the plaintiffs from pursuing their theory of liability and presenting their
case. Under the circumstances of this case, it was an abuse of discretion to grant motions
in limine terminating the plaintiffs’ case based solely on their untimely opposition to
motions in limine, when one of the motions in limine was itself filed late, there was no
prejudice shown, and effective lesser sanctions were available.
       This is not to say that counsel for plaintiffs should necessarily be absolved of
responsibility for their conduct. The conduct of plaintiffs’ counsel was unacceptable and
disruptive of the orderly process of the court and a burden to BRK. Monetary sanctions
against counsel for plaintiffs remain clearly within the discretion of the trial court. The
appropriateness of other sanctions, short of sanctions effectively terminating the action,
may also be considered by the court.
       Russell and Lautenberger are qualified to provide expert testimony on certain
topics. BRK’s motions to limit or exclude particular testimony require discretionary
rulings on evidentiary issues that are reserved to the trial court in the first instance.
Therefore, the order granting the motions in limine must be reversed for the issues to be
considered on their merits in the trial court.


                                       DISPOSITION


       The judgment in favor of BRK Brands, Inc. and the order granting the motions in
limine are reversed. The trial court is directed to consider the imposition of lesser


                                                 13
sanctions for the plaintiffs’ untimely opposition to the motions and to consider the
motions in limine on their merits. The parties are to bear their own costs on appeal.




              KRIEGLER, J.


We concur:



              TURNER, P.J.



              BAKER, J.




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