Unspecified

that was taken together, the court simply did not credit defense counsel's "oops" explanation. It was an ambush, and it was not proper.

Defense counsel tried to explain away plaintiffs' counsel's argument that had he known she was coming live he would not have spent hours identifying deposition excerpts to read to the jury. Defense counsel's explanation was that one never knows. That is just not credible. For that matter, defendant might have taken ill, or an expert suddenly become unavailable, or another witness refuse to come. Anything can happen. But one does not plan for the "you never know" by spending hours doing a deposition designation.

Or, at a minimum, the court would have expected defense counsel to be up front about it and say that she had agreed to come and testify, but because she lived in Nevada counsel wanted to be safe and then plaintiff's counsel could have decided whether to spend their time doing a just-in-case designation. And, of course, then she would be on the one-page witness list that defense counsel signed.

The bottom line is that it appeared to the court that this was a surprise witness for which there was no basis for surprise. That, coupled with her statement that she was there by subpoena, was enough. Of course, it was possible that she thought she was there due to the subpoena and that if she did not come, she would be in contempt of court. If that is the case, then her lawyer lied to her and defense counsel aided (albeit unknowingly) in the falsehood. Or she well knew that the subpoena was invalid, and she just committed perjury. Either way, the combination of all of that gives the court comfort that its ruling was correct.

The court also notes that it offered defendants the opportunity to read other parts of her deposition to the jury if it chose to do so after the court struck her testimony. Defendants declined the offer.

Defendants also suggest that the jury was in error as to mitigation. According to the defense, when plaintiff did not get the property in question, plaintiff used the money that was returned to it to buy another piece of property that turned a profit, and that is mitigation that had to be subtracted. The jury obviously disagreed in that it found no mitigation even though the matter was argued to them. The jury's verdict in this regard is proper. Money is fungible. It is more than reasonable to believe that had plaintiffs been successful in this property, plaintiffs would have bought other property as well. It is at least a question of fact, and the jury's answer will stand.

The court also notes that all of these issues, even were defendants correct, would not result in a JNOV (unless the Marcus bid was valid as a matter of law). At most they might support a new trial. In any event, for the foregoing reasons, the motions are DENIED.

obtain a copy of the court's tentative ruling.