Kang vs. City of Huntington Beach

Opposition

Cal. Super. - 4th Dist.January 25, 2013

P A N I S H S H E A & B O Y L E LL P 11 11 1 Sa nt a Mo ni ca Bo ul ev ar d, Su it e 70 0 Lo sA ng el es , Ca li fo mi a 90 02 5 31 0. 47 7. 16 99 fa x 31 0. 47 7. 17 00 p h o n e « ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PANISH SHEA & BOYLE LLP ADAM SHEA, State Bar No. 166800 shea@psblaw.com RYAN A. CASEY, State Bar No. 271865 casey@psblaw.com BRIAN POULTER, State Bar No. 285108 poulter@psblaw.com 11111 Santa Monica Boulevard, Suite 700 Los Angeles, California 90025 Telephone: 310.477.1700; Facsimile: 310.477.1699 MOREY & UPTON, LLP JOHN H. UPTON, State Bar No. 137169 hupton@mulaw.com JASON A. McDANIEL, State Bar No. 275342 mcdani45 @ gmail.com PAUL W. RALPH, State Bar No. 152555 pwr@ocinjuryattorney.com 611 Anton Boulevard, Suite 800 Costa Mesa, CA 92626 Telephone: 714.432.9555; Facsimile: 714.432.1292 Attorneys for Plaintiff ELECTRONICALLY FILED Superior Court of California, County of Orange 01/03/2018 at 11:12:00 Pi Clerk of the Superior Court By & Clerk, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER SUNNY KANG, Case No. 30-2013-00626834-CU-PA-CJC Assigned For All Purposes To: Plaintiff, Walter P. Schwarm, Department C19 V. CITY OF HUNTINGTON BEACH; HUNTINGTON BEACH POLICE PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION IN LIMINE NO. 4 TO EXCLUDE REFERENCE TO DEPARTMENT; WILLIAM BROWNLEE; LIEUTENANT KELLY RODRIGUEZ'S and DOES 1 TO 100, Inclusive, TESTIMONY REGARDING RUMOR OF ANOTHER ALLEGEDLY SIMILAR Defendants. ACCIDENT Action Filed: January 25, 2013 Trial Date: October 13, 2017 (Bifurcated) TO THE HONORABLE COURT, ALL PARTIES, AND THEIR ATTORNEYS: PLEASE TAKE NOTICE that Plaintiff SUNNY KANG ("Plaintiff") hereby opposes Defendants CITY OF HUNTINGTON BEACH and WILLIAM BROWNLEE's ("Defendants") Motion in Limine No. 4 ("Motion"). PLAINTIFF'S OPPOSITION TO DEFENDANTS" MOTION IN LIMINE NO. 4 P A N I S H S H E A & B O Y L E LL P 11 11 1 Sa nt a Mo ni ca Bo ul ev ar d, Su it e 70 0 Lo sA ng el es , Ca li fo mi a 90 02 5 31 0. 47 7. 16 99 fa x 31 0. 47 7. 17 00 p h o n e « ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. THE JURY IS ENTITLED TO DRAW REASONABLE INFERENCES FROM DIRECT AND CIRCUMSTANTIAL EVIDENCE. In the case of Halstead v. Paul (1954) 129 Cal.App.2d 339, 341, the driver of a car crossed over the center line on multiple occasions while driving with passengers in his car. Id. at 340. Atone point the car remained on the wrong side of the road for approximately 750-800 feet. Id. The driver then moved his car back into the correct lane. Id. At this point, the backseat passenger (who could not see whether the driver was dozing off or falling asleep) leaned forward to check on the driver to determine whether he was awake. Id. When the backseat passenger looked, the driver's right eye was open. Id. He then asked the driver if he was getting sleepy but received no response. Id. The automobile proceeded another 420 feet and then turned to the left sharply. Id. The backseat passenger had just enough time to shout "look out" and immediately thereafter the car went over the bank next to the left-hand side of the road. Id. The backseat passenger was injured. Id. As a result, the backseat passenger filed suit for damages and alleged punitive damages for willful misconduct for falling asleep at the wheel multiple times but continuing to drive. Id. The Court of Appeal summarized the testimony and evidence at trial as follows: The driver, Paul, testified that he had gone to a party the night before and did not get to bed until 3 a. m. He arose one hour later and drove to Redwood City in order to pick up Halstead and the others. That was all the sleep he had from Saturday morning until the time of the accident Sunday afternoon. He was unable to explain the cause of the accident and admitted that he must have dozed just before he went over the bank. However he denied having dozed at the wheel at any time prior to the accident. At the conclusion of the presentation of the backseat passenger's case, the defendant driver moved for, and the trial court granted, a nonsuit. /d. The backseat passenger appealed. The only issue on appeal was whether the circumstantial evidence at trial was such that the jury might reasonably have drawn the inference therefrom that when the defendant's car passed over the center of the road the first time he had fallen asleep, which would support a finding of willful misconduct for continuing to drive despite falling asleep multiple times at the wheel prior to the subject incident. Id. at 341. 117 2 PLAINTIFF'S OPPOSITION TO DEFENDANTS" MOTION IN LIMINE NO. 4 P A N I S H S H E A & B O Y L E LL P 11 11 1 Sa nt a Mo ni ca Bo ul ev ar d, Su it e 70 0 Lo sA ng el es , Ca li fo mi a 90 02 5 31 0. 47 7. 16 99 fa x 31 0. 47 7. 17 00 p h o n e « A N nn Bk W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Court of Appeal concluded that the trial court committed error in taking the case from the jury. Id. In reversing the trial court, the Court of Appeal noted the following: Here, to review the facts, we have a driver who after only one hour's sleep arises at 4 a. m., drives his car to the coast, goes fishing on the sea from 6:30 a. m. to 3 p. m., becomes seasick, and while driving his car thereafter on a straight, open road goes across the center line and continues in that position for 750 to 800 feet. From these facts plus the additional fact that only a short time thereafter he admittedly fell asleep and drove off the highway we are satisfied that the jury might reasonably have drawn the inference that when he previously crossed the center of the highway he had also fallen asleep. The inferences to be drawn from circumstantial evidence are for the jury's determination and if conflicting inferences may reasonably be drawn from the evidence which inference is to be drawn lies in the jury's discretion. [Citations omitted] It is equally true that a reasonable inference drawn from circumstantial evidence may be believed as against direct evidence to the contrary. [Citations omitted] Halstead, supra, 129 Cal.App.2d at 341 (emphasis added). “Only the most persuasive reasons justify handcuffing attorneys in the exercise of their advocacy within the bounds of propriety.” Beagle v. Vasold (1966) 65 Cal.2d 166, 181, 53 Cal.Rptr. 129, 137. If Plaintiff's counsel asks questions and they are believed to be objectionable, then defense counsel may voice their objection at that time. If the jury chooses to disregard Plaintiff's counsel's comments and instead decide that what defense counsel suggests is reasonable, then that is what the jury will decide. Competing views form the basis of trial advocacy, which is why lawyers have wide latitude to persuade a jury about the righteousness of the parties’ positions: The right of counsel to discuss the merits of a case, both as to the law and facts, is very wide, and he has the right to state fully his views as to what the evidence shows, and as to the conclusions to be fairly drawn therefrom. The adverse party cannot complain if the reasoning be faulty and the deductions illogical, as such matters are ultimately for the consideration of the jury. . . . Counsel may vigorously argue his case and is not limited to “Chesterfieldian politeness.” . . . An attorney is permitted to argue all reasonable inferences from the evidence. . .. Only the most persuasive reasons justify handcuffing attorneys in the exercise of their advocacy within the bounds of propriety. Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 795 (citations and internal quotations omitted). 111 3 PLAINTIFF'S OPPOSITION TO DEFENDANTS" MOTION IN LIMINE NO. 4 P A N I S H S H E A & B O Y L E LL P 11 11 1 Sa nt a Mo ni ca Bo ul ev ar d, Su it e 70 0 Lo sA ng el es , Ca li fo mi a 90 02 5 31 0. 47 7. 16 99 fa x 31 0. 47 7. 17 00 p h o n e « ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Here, the jury may properly consider any and all direct and/or circumstantial evidence of prior incidents of Huntington Beach police officers causing car collisions while using electronic devices in their car. Whether the evidence is hearsay is irrelevant as the statement goes to Defendant Huntington Beach's state of mind, i.e., the City had notice that operating police cruisers while using electronic devices is dangerous and a foreseeable cause of car collisions. Therefore, the court should admit the evidence and permit the jury to consider the prior incident during deliberations. III. CONCLUSION Based on the foregoing argument, Plaintiff respectfully requests that Defendants’ Motion be denied. DATED: October 12, 2017 PANISH SHEA & BOYLE LLP By: Brian Poulter Attorney for Plaintiff 4 PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 4 P A N I S H S H E A & B O Y L E LL P 11 11 1 Sa nt a Mo ni ca Bo ul ev ar d, Su it e 70 0 Lo sA ng el es , Ca li fo mi a 90 02 5 31 0. 47 7. 16 99 fa x 31 0. 47 7. 17 00 p h o n e « ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Los Angeles, State of California. My business address is 11111 Santa Monica Boulevard, Suite 700, Los Angeles, CA 90025. On October 12, 2017, I served true copies of the following document(s) described as PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION IN LIMINE NO. 4 TO EXCLUDE REFERENCE TO LIEUTENANT KELLY RODRIGUEZ'S TESTIMONY REGARDING RUMOR OF ANOTHER ALLEGEDLY SIMILAR ACCIDENT on the interested parties in this action as follows: SEE ATTACHED SERVICE LIST BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the document(s) to be sent from e-mail address mccoy @psblaw.com to the persons at the e-mail addresses listed in the Service List. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on October 12, 2017, at Los Angeles, California. / / ( 1 ~ 4 r / 4 1 J ad A ( Kira R. McCoy PLAINTIFF'S OPPOSITION TO DEFENDANTS" MOTION IN LIMINE NO. 4 P A N I S H S H E A & B O Y L E LL P 11 11 1 Sa nt a Mo ni ca Bo ul ev ar d, Su it e 70 0 Lo sA ng el es , Ca li fo mi a 90 02 5 31 0. 47 7. 16 99 fa x 31 0. 47 7. 17 00 p h o n e « A N nn Bk W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST Kang v. City of Huntington Beach, et al. OCSC Case No. 30-2013-00626834-CU-PA-CJC Michael E. Gates Brian L. Williams Office of the City Attorney 2000 Main Street, P.O. Box 190 Huntington Beach, CA 92648 Tel: (714) 536-5555; Fax: (714) 374-1590 Email: Michael Gates @ surfcity-hb.org; Brian. Williams @ surfcity-hb.org; CLeonhard@surfcity-hb.or Attorneys for Defendants CITY OF HUNTINGTON BEACH, HUNTINGTON BEACH POLICE DEPARTMENT; WILLIAM BROWNLEE John H. Upton Jason A. McDaniel Paul W. Ralph Morey & Upton, LLP 611 Anton Boulevard, Suite 800 Costa Mesa, CA 92626 Tel: (714) 432-9555; Fax: (714) 432-1292 Emails: jupton @mulaw.com; mcdani45 @ gmail.com; pwr@ocinjuryattorney.com; kmcdonough@mulaw.com Attorneys for Plaintiff (Co-Counsel) 2 PLAINTIFF'S OPPOSITION TO DEFENDANTS" MOTION IN LIMINE NO. 4