The Haven at Ventura, LLC v. General Security Indemnity Company of Arizona

Opinion

O Case No.: 2:22-cv-01284-MEMF-MAA Plaintiff, ORDER ON MOTIONS IN LIMINE [ECF NOS. 115, 117, 118, 119, 120, 121, 122, 123, v. 124, 125, 126]

GENERAL SECURITY INDEMINTY COMPANY OF ARIZONA ET AL., Defendants.

Before the Court are five (5) Motions in Limine (ECF Nos. 122, 123, 124, 125, 126) and a Motion to Bifurcate Trial of Breach of Contract and Declaratory Relief Claims Before Trial of Breach of Implied Covenant of Good Faith and Fair Dealing (ECF No. 121) filed by Defendants General Security Indemnity Company of Arizona, Westchester Surplus Lines Insurance Company, Endurance American Specialty Insurance Company, and Certain Underwriters at Lloyd’s London Known as Syndicates TMK 510 and TMK 1880. Also before the Court are five (5) Motions in Limine filed by Plaintiff (ECF Nos. 115, 117, 118, 119, 120). For the reasons stated herein, the Court rules on the motions as described below. The parties are ORDERED to advise their witnesses of these rulings. Should a witness be required to refer to excluded material in order to answer a question truthfully, the witness should indicate that a sidebar is needed and should not refer to the excluded material in the presence of the jury. I. Background A. Factual Background The Court’s factual findings are listed on its Amended Order Granting in Part Defendants’ Motion for Summary Judgment. ECF No. 96. As such, the Court will only briefly outline the general factual background for this action here. This action arises from allegations by Plaintiff the Haven at Ventura, LLC (“Plaintiff” or “Haven”) that Defendants General Security Indemnity Company of Arizona (“GSICA”), Westchester Surplus Lines Insurance Company (“Westchester”), Endurance American Specialty Insurance Company (“EASIC”), Certain Underwriters at Lloyd’s London Known as Syndicates TMK 510 and TMK 1880 (“Lloyd’s,” or collectively with GSICA, Westchester, EASIC, and Lloyd’s, “Defendants”) impermissibly denied Plaintiffs’s insurance claim for damage to an apartment complex that Plaintiff constructed. B. Procedural History Plaintiff filed the Complaint in this Court on February 24, 2022. ECF No. 1 (“Compl.”). The Complaint alleges six causes of action against all Defendants including: (1) a claim for declaratory relief that certain of Plaintiff’s losses fall outside the scope of the Fungus Exclusion; (2) a claim for declaratory relief that the Claim falls within the Mold Coverage Extension; (3) a claim for declaratory relief that the Claim falls within the coverage afforded for Delay in Opening; (4) a claim for breach of contract based on Defendants’ failure to pay the Claim; (5) a claim for breach of contract based on Defendants’ failure to cover the losses related to a delay in opening (6) a claim for breach of implied covenant of good faith and fair dealing. See generally Compl. On September 27, 2024, the Court denied the parties’ Motion for Summary Judgment as to all causes of action and granted the Motion as to Plaintiff’s request for punitive damages. ECF 96 (“MSJ Order”). The parties filed their initial Motions in Limine on June 26, 2024 (ECF Nos. 79, 80, 82, 86, 87, 88, 89, 90), which were denied as moot on February 25, 2025 (ECF No. 100). Plaintiff refiled its Motions in Limine on June 25, 2025 (ECF Nos. 115, 117, 118, 119, 120). Defendants also refiled their Motions in Limine and filed the Motion to Bifurcate Trial of Breach of Contract and Declaratory Relief Claims Before Trial of Breach of Implied Covenant of Good Faith and Fair Dealing (“Motion to Bifurcate Trial”) on June 25, 2025 (ECF Nos. 121, 122, 123, 124, 125, 126). Plaintiff filed oppositions to Defendants’ Motions in Limine and Motion to Bifurcate Trial on July 9, 2025 (ECF Nos. 139, 140, 141, 142, 143, 144). On the same day, Defendants filed oppositions to Plaintiff’s Motions in Limine (ECF Nos. 146, 147, 148, 149, 150). The Court held a hearing on the motions at the Final Pretrial Conference on August 6, 2025. The Court provided an oral tentative at the outset of the hearing, to which the parties largely submitted, with the exception of Plaintiff’s Motion in Limine No. 1, and Defendants’ Motion in Limine Nos. 1 and 2. II. Applicable Law A. Motions in Limine A motion in limine is “a procedural mechanism to limit in advance testimony or evidence in a particular area.” United States v. Heller, 551 F.3d 1108, 1111 (9th Cir. 2009). A party files a motion in limine to exclude anticipated prejudicial evidence before the evidence is introduced at trial. See Luce v. United States, 469 U.S. 38, 40 n.2 (1984). A court has the power to grant such motions pursuant to its “inherent authority to manage trials,” even though such rulings are not explicitly authorized by the Federal Rules of Evidence. Id. at 41 n.4 (citation omitted). Regardless of a court’s initial decision on a motion in limine, it may revisit the issue at trial. Id. at 41–42 (“[E]ven if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling.”). B. Federal Rules of Evidence 401 and 402 Federal Rule of Evidence 402 explicitly prohibits the inclusion of “irrelevant” evidence. Fed. R. Evid. 402. The Rule dictates that “[r]elevant evidence is admissible unless any of the following provides other: the United States Constitution; a federal statute; these rules; or other rules prescribed by the Supreme Court. Irrelevant evidence is not admissible.” Fed. R. Evid. 402. Federal Rule of Evidence 401 prescribes what evidence qualifies as relevant. Fed. R. Evid. 401. It provides that evidence is relevant if: “(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Id. 401(a)–(b); see also Crawford v. City of Bakersfield, 944 F.3d 1070, 1077 (9th Cir. 2019) (“Deciding whether a fact is of consequence in determining the action generally requires considering the substantive issues the case presents.” (internal quotation marks omitted)). Courts have recognized that Rule 401’s “basic standard of relevance . . . is a liberal one.” Crawford, 944 F.3d at 1077. C. Federal Rule of Evidence 403 Federal Rule of Evidence 403 dictates that “[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. District courts have broad discretion in assessing admissibility under Rule 403. Sprint/United Mgmt. Co. v. Mendelsohn, 552 US 379, 384 (2008) (finding “wide discretion” necessary because Rule 403 “requires an on–the–spot balancing of probative value and prejudice, potentially to exclude . . . evidence that already has been found to be factually relevant”) (internal quotes omitted); see also Hardeman v. Monsanto Co., 997 F.3d 941, 967 (9th Cir. 2021), cert. denied, 142 S. Ct. 2834 (2022) (“A district court’s Rule 403 determination is subject to great deference, because the considerations arising under Rule 403 are susceptible only to case–by–case determinations, requiring examination of the surrounding facts, circumstances, and issues.”). D. Fed. R. Evid. 701: Lay Witness Opinion Testimony Under Federal Rule of Evidence 701, a lay witness may testify “in the form of an opinion” if it is “(a) rationally based on the perception of the witness; (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge.” Fed. R. Evid. 701. “Rule 701(a) contains a personal knowledge requirement.” United States v. Lopez, 762 F.3d 852, 864 (9th Cir. 2014); see also Fed. R. Evid. 602 (“A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter”). “In presenting lay opinions, the personal knowledge requirement may be met if the witness can demonstrate firsthand knowledge or observation.” Lopez, 762 F.3d at 864. The opinion testimony of lay witnesses must be “predicated upon concrete facts within their own observation and recollection—that is facts perceived from their own senses, as distinguished from their opinions or conclusions drawn from such facts.” United States v. Durham, 464 F.3d 976, 982 (9th Cir. 2006) (quoting United States v. Skeet, 665 F.2d 983, 985 (9th Cir. 1982)). Accordingly, “[a] lay witness’s opinion testimony necessarily draws on the witness’s own understanding, including a wealth of personal information, experience, and education, that cannot be placed before the jury.” United States v. Gadson, 763 F.3d 1189, 1208 (9th Cir. 2014). But a lay opinion witness “may not testify based on speculation, rely on hearsay or interpret unambiguous, clear statements.” United States v. Vera, 770 F.3d 1232, 1242 (9th Cir. 2014). E. Federal rule of Evidence 702 and 703 The personal knowledge requirement for lay witnesses does not apply to expert testimony. Fed. R. Evid. 602. Federal Rule of Evidence 702 allows a witness to testify as an expert “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” United States v. Alonso, 48 F.3d 1536, 1540 (9th Cir. 1995) (quoting Fed. R. Evid. 702). While Courts may reject wholly speculative or unfounded testimony, it abuses its discretion if it overlooks relevant data submitted as the foundation of an expert’s remarks.” Elosu v. Middlefork Ranch Inc., 26 F.4th 1017, 1025 (9th Cir. 2022). Experts may express opinions without published support if they provide an explanation of why such publications are unavailable. Primiano v. Cook, 598 F.3d 558, 567 (9th Cir. 2010). This concern regarding speculation speaks to weight, not reliability. Elosu, 26 F.4th at 1025. Federal Rule of Evidence 703 establishes that an expert may base their opinion on “facts or data in the case that the expert has been made aware of or personally observed.” Fed. R. Evid. 703; Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593 (1993) (“[A]n expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation.”). If experts in the particular field would “reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted,” but if the facts or data would otherwise be inadmissible, the proponent of the opinion can only disclose them to the jury if “their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.” Fed. R. Evid. 703; see also Daubert, 509 U.S. at 595 (noting that under Rule 703, expert opinions based on inadmissible hearsay should only be admitted if the facts or data are “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject” (internal quotations omitted)). F. Federal rule of Evidence 705 Federal Rule of Evidence 705 expressly preserves a party’s right to cross-examine an expert and force the expert to disclose the facts or data which the expert relied upon in providing testimony and expert opinions. Fed. R. Evid. 705. G. Federal Rule of Civil Procedure 42 Under Federal Rule of Civil Procedure 42(b), the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims for convenience, to avoid prejudice, or to expedite and economize. When ordering a separate trial, the court must preserve any federal right to a jury trial. Fed. R. Civ. P. 42(b). III. Discussion A. Defendants’ Motion in Limine No. 1 (ECF No. 122) is DENIED. Defendants move to exclude opinion testimony from Plaintiff’s disclosed witnesses regarding causation or specialized construction-related matters such as the proper methods of construction for mitigating damage to construction materials and costs of making good. ECF No. 122 at 3–4.1 In particular, Defendants seek to proscribe Plaintiff’s witnesses from opining on mold, or mold-related issues, such as what caused the mold, what would have prevented the mold, what should have been done following discovery of the mold, and what mitigation and repair approaches should have been 1 Unless otherwise noted, when citing to the documents submitted by the parties or filed on the docket, the utilized by Defendants under the circumstances. Id. at 7–12. Defendants make this motion pursuant to Federal Rules of Evidence 702, 703, and 705. Id. at 12. Upon consideration of the parties’ moving briefs and the arguments at the hearing, the Court DENIES the Motion as lay witnesses are permitted to provide opinion testimony. B. Defendants’ Motion in Limine No. 2 (ECF No. 123) is DENIED. Defendants move to exclude argument or evidence regarding two separate categories of damages: (1) costs Plaintiff incurred to remove and replace construction materials that were improperly installed in a damp and mold-laden environment (“Hard Costs”); and (2) amounts payable under the insurance policy provisions entitled “Delay in Opening” (“Delay Claim Damages”). ECF No. 123 at 4. Defendants contend that it is improper to present such evidence unless Plaintiff makes a prima facie showing that (1) for all aspects of the claimed damages, Plaintiff established all threshold matters that it must prove based on the terms and conditions of the Policies that pertain to those particular damages; and (2) for all sums Plaintiff alleges it is owed, all damages sought are actually payable and Plaintiff is not seeking a double-recovery. Id. With regard to the Hard Costs, Defendants assert that the prima facie case requires Plaintiff to demonstrate that there was an “occurrence” that is covered under the “Extension of Coverage” policy, and that the mold “resulted directly from” that “occurrence.” Id. at 6. With regard to the Delay Claim Damages, Defendants contend that Plaintiff must demonstrate that there was a “delay” caused by an “occurrence” or “series of “occurrences,” resulting in “physical loss to the insured property by an insured peril.” Id. at 11–12. Defendants argue that Plaintiff cannot maker either showing, so such evidence should be excluded at trial. See generally id. Defendants make this motion pursuant to Federal Rules of Evidence 401, 402, and 403. Id. at 11. Upon consideration of the parties’ moving briefs and the arguments at the hearing, the Court DENIES the Motion. Defendants make a number of arguments that are unsupported by case law, such as a requirement that Haven makes a “prima facie case” before being permitted to present evidence of damages. Similarly, Defendants raise a number of red herring issues not supported by the record, including that Haven intends to present the jury with a “stack” of invoices and require the jury to guess as to their significance. There is no indication that this is what Haven intends to do at trial. Defendants also appear to misread the Court’s MSJ Order, which did not find that Haven is only entitled to water remediation costs or that Haven can only recover if it shows water damage that did not result in mold. The MSJ Order is clear on the relationship between the two. Defendants also seem to argue that Haven cannot prove causation of the mold without expert testimony, another assertion unsupported by the law. In addition, without any support in case law, Defendants declare that because the policy has a limit of $1M, any invoices beyond $1M are necessarily cumulative and should be excluded. This would be a particularly unprecedented approach. Finally, Defendants seek to obtain through this motion in limine what they failed to obtain at summary judgment – a determination that Haven’s claims fail for want of proof of damages. The deadline for seeking summary judgment has passed, and the Court will not grant summary judgment by way of a motion in limine. C. Defendants’ Motion in Limine No. 3 (ECF No. 124) is DENIED. Defendants move to exclude Plaintiff’s expert witness, Ms. White, from introducing or presenting evidence related to claimed damages that was not subject to any methodology, and which does not constitute an “expert opinion” within the meaning of the Federal Rules of Evidence. ECF No. 124 at 3. 12. Defendants make this motion pursuant to Federal Rules of Evidence 702, 703, and 705. Id. at 3. Upon consideration of the parties’ moving briefs, the Court DENIES the Motion for the reasons stated at the hearing. D. Defendants’ Motion in Limine No. 4 (ECF No. 125) is GRANTED IN PART. Defendants move to exclude all insurance policy interpretation testimony, including such testimony from Plaintiff’s witness Mr. Titus, because it constitutes an attempt to offer improper expert opinion testimony that goes beyond Defendants’ claims handling practices and standards. ECF No. 125 at 3. Upon consideration of the parties’ moving briefs, the Court GRANTS the Motion IN PART for the reasons stated at the hearing, adopting Haven’s proposal with respect to the limits on this testimony. E. Defendants’ Motion in Limine No. 5 (ECF No. 126) is GRANTED. Defendants move to exclude evidence relating to Chubb’s Underwriting Memorandum Cost of Making Good, Chubb’s Amendment to Excluded Cause of Loss—Cost of Making Good, and L.E.G. Group Defects Wording document. ECF No. 126 at 3. Defendants argue that these documents are irrelevant to what is at issue in this case, unduly prejudicial to Defendants, and will likely confuse the jury. See generally id. Defendants make this motion pursuant to Federal Rules of Evidence 401 and 402. Id. at 5. Upon consideration of the parties’ moving briefs, the Court GRANTS the Motion for the reasons stated at the hearing as the purposes proffered by Haven for this evidence appear unnecessary and inappropriate, rendering this evidence irrelevant. F. Defendants’ Motion to Bifurcate Trial (ECF No. 121) is DENIED. Defendants move to bifurcate and try Plaintiff’s first five claims concerning breach of contract prior to any trial on Plaintiff’s sixth claim regarding breach of implied covenant of good faith and fair dealing. ECF No. 121 at 4. Defendants assert that the bifurcation of trials is appropriate here because resolution of the claims on Defendants’ alleged breach of contract are dispositive of the entire case. Id. at 5. Defendants also argue that bifurcation is necessary to avoid potential undue prejudice to Defendants. Id. at 6–8. The Defendants make their motion pursuant to Federal Rule of Civil Procedure 42(b). Id. at 8. Upon consideration of the parties’ moving briefs and the arguments at the hearing, the Court DENIES the Motion. Defendants have failed to show that the bifurcation will significantly streamline the trial, nor have they shown any prejudice from the evidence that would be relegated to the second phase. G. Plaintiff’s Motion in Limine No. 1 (ECF No. 115) is GRANTED. Plaintiff moves to exclude any evidence or reference to payments made by Navigator Insurance Company to Plaintiff. ECF No. 115 at 3. Plaintiff argues the Defendants’ insurance policy contains an unambiguous “Primary Insurance Insured Project Endorsement,” mandating coverage as though any other insurance policy did not exist. Id. Plaintiff also argues that Defendants’ “first dollar coverage” provision creates an independent coverage obligation that operates regardless of payments by other insures. Id. at 6. Finally, Plaintiff contends that evidence of Navigator Insurance Company’s payments to Plaintiff is barred by California’s collateral source rule, and the minimal probative value of such evidence is substantially outweighed by its prejudicial impact. Id. at 7–8. Plaintiff makes this motion pursuant to Federal Rules of Evidence 401, 402, and 403, California’s collateral source rule, and the express contractual provisions of Defendants’ insurance policy. See generally id. Upon consideration of the parties’ moving briefs and the arguments at the hearing, the Court GRANTS the Motion. The primary endorsement renders the Navigator payment irrelevant and highly prejudicial, even if the collateral source rule does not apply to this contract dispute. The communications with Navigator are also of limited probative value given the differences in the policies and the absence of a communication explicitly contradicting the claims made in this case. The limited probative value is far outweighed by the prejudice of the jury somehow believing that Haven has already been fully compensated. Finally, Defendants’ double recovery argument is unavailing at this stage, given that the Navigator payment is only $1M whereas the evidence Defendants point to (communications showing a set off) indicate that the losses claimed by Haven far exceed that and that even the $5.8M does not include some costs incurred. H. Plaintiff’s Motion in Limine No. 2 (ECF No. 120) is DENIED. Plaintiff moves to exclude the expert testimony of three expert witnesses—Mr. Daily, Mr. Sasaki, and Mr. Buckley—to the extent such testimony seeks to justify Defendants’ coverage denial through after-the-fact analysis that was not performed during the actual claims handling process. ECF No. 120 at 3–4. Upon consideration of the parties’ moving briefs, the Court DENIES the Motion for the reasons stated in the tentative at the hearing. I. Plaintiff’s Motion in Limine No. 3 (ECF No. 117) is DENIED. Plaintiff moves to exclude evidence requiring proof of a specific covered “occurrence” beyond the insurance policy’s plain terms, and to preclude Defendants from substituting expert testimony for policy interpretation. ECF No. 117 at 3. Upon consideration of the parties’ moving briefs, the Court DENIES the Motion for the reasons stated on the record as the Court has already interpreted the relevant policy provisions in its MSJ Order. J. Plaintiff’s Motion in Limine No. 4 (ECF No. 119) is DENIED. Plaintiff moves to exclude: (1) all witness testimony interpreting, defining, or giving legal meaning to insurance policy terms; (2) Mr. Daily’s anticipated scientific testimony about the definitions of “water damage” and other related technical concepts that constitute policy interpretation; (3) Mr. Buckley’s anticipated testimony regarding industry standards validation of coverage decisions that constitutes indirect policy interpretation; and (4) all witness testimony offering opinions about coverage scope, policy application, or reasonableness of coverage decisions. ECF No. 119 at 11. Upon consideration of the parties’ moving briefs, the Court DENIES the Motion for the reasons stated in the oral tentative as the challenged testimony does not appear to be policy interpretation. K. Plaintiff’s Motion in Limine No. 5 (ECF No. 118) is DENIED. Plaintiff moves to exclude all post-denial investigation evidence relied upon to justify Defendants’ insurance coverage denial as well as testimony from expert witnesses, who were retained after the insurance coverage denial at issue, about their respective post-denial investigations. ECF No. 119 at 7. Upon consideration of the parties’ moving briefs, the Court DENIES the Motion for the reasons stated in the oral tentative as Haven is not specific about what is being excluded and its concerns can be addressed in appropriate limiting instructions. IV. Conclusion For the foregoing reasons, the Court hereby ORDERS as follows: 1. Defendants’ Motion in limine No. 1, ECF No. 122, is DENIED; 2. Defendants’ Motion in limine No. 2, ECF No. 123, is DENIED; 3. Defendants’ Motion in limine No. 3, ECF No. 124, is DENIED; 4. Defendants’ Motion in limine No. 4, ECF No. 125, is GRANTED IN PART 5. Defendants’ Motion in limine No. 5, ECF No. 124, is GRANTED; 6. Defendants’ Motion to Bifurcate Trial, ECF No. 121, is DENIED; 7. Plaintiff’s Motion in limine No. 1, ECF No. 115, is GRANTED; 8. Plaintiffs Motion in limine No. 2, ECF No. 120, is DENIED; 9. Plaintiff’s Motion in limine No. 3, ECF No. 117, is DENIED; 10. Plaintiff?s Motion in limine No. 4, ECF No. 119, is DENIED; and 11. Plaintiff's Motion in limine No. 5, ECF No. 118, is DENIED 12. The parties shall meet and confer regarding any limiting instructions discussed above and provide a joint proposal to the Court by Monday, August 11. perenne Dated: August 8, 2025 = * MAAME EJWUSI-MENSAH FRIMPONG United States District Judge