Maria Esther Villanueva Rostro vs. Robert PettisMotion in LimineCal. Super. - 4th Dist.January 21, 2014 ELECTRONICALLY FILED Superior Court of California, 1 ||Michael L. Wroniak, Esq. (State Bar No. 210347) LHD Rf Geng John D. Perkins, Esq. (State Bar No. 242984) REFRF{RNIR x OFLA FN 2 || COLLINS COLLINS MUIR +STEWART LLP By lara, Mavtam ike, pry Clr 3 750 The City Drive, Suite 400 Orange, CA 92868-4940 4 (714) 823-4100 - FAX (714) 823-4101 Exempt from Payment of Filing Fee 5 Pursuant to Govt. Code § 6103. 6 Attorneys for Defendant, COUNTY OF ORANGE 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF ORANGE - CENTRAL JUSTICE DISTRICT 10 11 |[|MARIA ESTHER VILLANUEVA ROSTRO,) CASE NO. 30-2014-00700005-CU-PA-CJC Lead an individual, JUAN ALBERTO CACIQUE ) Case c/w 30-2014-00703925-CU-PP-CIC 12 || (aka CASIQUE) VILLANUEVA, an ) individual; JUANA SALINAS ) [Assigned to Judge John C. Gastelum, Dept. C11] 13 HERNANDEZ, individually, and as guardian ) 14 |[2ad litem for JENNIFER CACIQUE (aka ) DEFENDANT COUNTY OF ORANGE’S CASIQUE) VARGAS, a minor, ALONDRA ) NOTICE OF MOTION AND MOTION IN 15 [| CACIQUE (aka CASIQUE) VARGAS, a ) LIMINE NO. 11 FOR AN ORDER TO minor; and CASSANDRA CACIQUE (aka ) PRECLUDE ANY DISCUSSION ON 16 || CASIQUE) VARGAS, a minor, ) ALLEGED VIOLATION(S) OF A ) STATUTORY DUTY 17 Plaintiff, ) 18 ) Vs. ) Complaint Filed: 02/10/14 19 ) ROBERT PETTIS an individual, DEKKEN ) Trial Date: 02/13/19 20 ||NOLAN MCKEEVER, an individual; ) 71 MISSION IMPORTS, a business entity form ) unknown; MERCEDES BENZ LAGUNA ) 2) NIGUEL, a business entity form unknown; ) THE STATE OF CALIFORNIA including ) 23 [| but not limited to CALTRANS and the ) DEPARTMENT OF TRANSPORTATION, a) 24 || governmental entity; COUNTY OF ) 25 ORANGE, a governmental entity; CITY OF ) LAGUNA BEACH, a governmental entity; ) 26 ||CITY OF LAGUNA HILLS, a governmental ) entity; CITY OF LAGUNA NIGUEL, a ) 27 || governmental entity; LAGUNA BEACH ) COUNTY WATER DISTRICT, a ) 28 || governmental entity; CITY OF IRVINE, a) COLLINS COLLINS Hon STEWA RT. | 18970 { fe COUNTY OF ORANGE’S MIL NO. 11 oe RX N n R A W O N N N N N N N N N N e e m m em p m em em N S A nt RA W N = O O R N T R W N = Oo 28 COLLINS COLLINS MUIR + STEWART. 750 The City Drive Suite 400 Orange, CA 92868-4940 Phone (714) 823-4100 Fax (714) 823-4101 governmental entity; and DOES 1-250, INCLUSIVE, Defendants. TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD HEREIN: PLEASE TAKE NOTICE that on February 13, 2019 or as soon thereafter as the Court shall determine, in Department C11 of the above entitled court, Defendant COUNTY OF ORANGE (“County”) will and hereby does move this Court in limine to preclude Plaintiffs MARIA ESTHER VILLANUEVA ROSTRO, an individual, JUAN ALBERTO SALINAS HERNANDEZ, an individual, JUANA SALINAS HERNANDEZ, an individual, JENNIFER CACIQUE VARGAS, a minor, ALONDRA CACIQUE VARGAS, a minor, and CASSANDRA CACIQUE VARGAS, a minor (“Plaintiffs”) from introducing any arguments or evidence on any alleged violation(s) of a statutory duty. This Motion is made on the grounds that: 1. The County’s liability is statutorily limited to Government Code § 835; and 2. The introduction of irrelevant and inapplicable statutes with regard to the County lacks probative value and raises a substantial danger of undue prejudice and misleading the jury. (Evid. Code §§ 350, 352.) This motion is based upon this Notice, the attached Memorandum of Points and Authorities, the Court’s files in this action, and such other evidence or oral argument as may be presented at the hearing on this motion. DATED: February 4, 2019 COLLINS COLLINS MUIR +STEWART LLP By: C _ 16D. PERKINS MICHAEL L. WRONIAK Attorneys for Defendant COUNTY OF ORANGE 18970 2 COUNTY OF ORANGE’S MIL NO. 11 oe RX N n R A W O N N N N N N N N N N e e m m em p m em em N S A nt RA W N = O O R N T R W N = Oo 28 COLLINS COLLINS MUIR + STEWART. 750 The City Drive Suite 400 Orange, CA 92868-4940 Phone (714) 823-4100 Fax (714) 823-4101 MEMORANDUM OF POINTS AND AUTHORITIES I. PRELIMINARY STATEMENT This wrongful death action arises out of an automobile accident that took place on April 2, 2013, on State Route I-133 (“Laguna Canyon Road”), approximately 600 feet north of El Toro Road, wherein Defendant Robert Pettis crossed over two sets of double yellow lines into oncoming traffic and collided with Alberto Casique’s vehicle, killing both Casique and his passenger, Armando Gonzalez. The family of decedent Alberto Casique, Plaintiffs MARIA ESTHER VILLANUEVA ROSTRO, JUAN ALBERTO CACIQUE VILLANUEVA, JUANA SALINAS HERNANDEZ, JENNIFER CACIQUE VARGAS, ALONDRA CACIQUE VARGAS, and CASSANDRA CACIQUE VARGAS (“Plaintiffs”) filed suit against a number of parties, including Defendant County of Orange (“County”). Plaintiffs’ claims against the County are limited and are statutorily based on a cause of action for dangerous condition of public property. Despite the narrow legal theory of liability applicable to the County, Plaintiffs have in this case attempted to argue that the County is bound to certain mandatory duties pursuant to Government Code § 815.6. Specifically, Plaintiffs have argued that the County breached a mandatory duty under: (1) Civil Code § 3480 (Public Nuisance); (2) Civil Code § 3479 (Nuisance); (3) Orange County Code § 7-9-132.2 (Landscaping); (4) Orange County Code § 4-9-285 (Landscaping and Screening); (5) Vehicle Code § 17001 (Public Agencies); (6) Vehicle Code § 21350 (Erection and Maintenance -Traffic Signs, Signals and Markings); and (7) Vehicle Code § 21351 (Erection and Maintenance - Traffic Signs, Signals and Markings). None of these are applicable to the County and/or the facts of this case, and are thus irrelevant and will only serve to unduly prejudice the County if such arguments or references are allowed to be made by the Plaintiffs’ counsel, Plaintiffs’ witnesses, or Plaintiffs’ experts. Accordingly, the County respectfully requests that this Court grant this Motion in Limine for an order to preclude Plaintiffs from introducing any arguments or evidence on any alleged violation(s) of a statutory duty under Government Code § 815.6 and/or pursuant to Civil Code § 3480, Civil Code § 3479, Orange 18970 3 COUNTY OF ORANGE’S MIL NO. 11 oe RX N n R A W O N N N N N N N N N N e e m m em p m em em N S A nt RA W N = O O R N T R W N = Oo 28 COLLINS COLLINS MUIR + STEWART. 750 The City Drive Suite 400 Orange, CA 92868-4940 Phone (714) 823-4100 Fax (714) 823-4101 County Code § 7-9-132.2, Orange County Code § 4-9-2835, Vehicle Code § 17001, Vehicle Code § 21350, Vehicle Code § 21351, or any theory that is inconsistent with Government Code § 835. II. THE COUNTY’S LIABILITY IS LIMITED TO GOV'T CODE § 835, AND ARGUMENTS OUTSIDE THESE CONDITIONS ARE IMPROPER AND IRRELEVANT Government Code § 835 sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property. (Brown v Poway Unified School Dist. (1993) 4 Cal.4™ 820, 829; Van Kempen v Hayward Area Park etc. Dist. (1972) 23 Cal.App.3d 822, 829.) However, Plaintiffs have argued in this matter that the County’s exposure to liability is expanded by Government Code § 815.6' and the resulting imposition of alleged mandatory duties under Civil Code § 3480, Civil Code § 3479, Orange County Code § 7-9-132.2, Orange County Code § 4-9-285, Vehicle Code § 17001, Vehicle Code § 21350, and Vehicle Code § 21351. None of these are applicable to the County in the context the facts and issues of this case. Civil Code §§ 3479 and 3480 do not impose a duty, but only define “nuisance” and “public nuisance.” This Court has already rejected Plaintiffs’ formal attempt to impose a nuisance standard on the County, as Plaintiffs cannot show the requisite interference with the use and enjoyment of their own private property, nor do they have standing to allege an injury different in kind, not merely in degree, from that inflicted on the general public. (See, December 11, 2018 ruling on demurrers and motions to strike Plaintiffs’ First Amended Complaint; See also, Civ. Code §3493; Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 123-124; Birke v. Oakwood Worldwide (2009) 169 Cal. App.4th 1540, 1547-1548.) The Orange County Municipal Codes also do not impose a mandatory duty upon the County because the zoning guidelines are not applicable pursuant to section 7-9-20. Specifically, Orange County Municipal Code § 7-9-20(i) states that “land owned in fee by the County or land leased to the County shall not be subject to the land use regulations of the County, including but not limited ' This section reads, “Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.” (Cal. Gov’t Code § 815.6.) 18970 4 COUNTY OF ORANGE’S MIL NO. 11 oe RX N n R A W O N N N N N N N N N N e e m m em p m em em N S A nt RA W N = O O R N T R W N = Oo 28 COLLINS COLLINS MUIR + STEWART. 750 The City Drive Suite 400 Orange, CA 92868-4940 Phone (714) 823-4100 Fax (714) 823-4101 to the Zoning Code, specific plans and planned communities.” (/d.) Moreover, neither code section is aimed at traffic safety on State highways - thus, the purpose of the enactments was not to protect against the type of injury suffered by Plaintiffs. Additionally, the Vehicle Code sections are inapplicable to the County and the facts of this case. Vehicle Code § 17001 reads: “A public entity is liable for death or injury to person or property proximately caused by a negligent or wrongful act or omission in the operation of any motor vehicle by an employee of the public entity within the scope of his employment.” (Id.) However, there are no allegations in this case which concern the negligent operation of a motor vehicle by a public employee. The County also cannot be liable for violation of Vehicle Code §§ 21350 and/or 21351 (concerning the erection of official traffic control signs, signals and markings) because these statutes do not impose a mandatory duty on the County. Rather, the statutes merely permit the Department of Transportation and/or the local authorities to determine what is necessary to carry out the provision of the Vehicle Code or local traffic ordinances. To the extent Plaintiffs wish to argue that a lack of proper traffic signs, signals and/or other traffic control devices created a dangerous condition of public property, this is not permitted because, as stated above, Government Code § 835 sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property. (Id.) Accordingly, any arguments or references to any supposed “mandatory duty” imposed on the County by these statutes are wholly improper and clearly irrelevant. If the jury is allowed to hear these arguments or references to these immaterial statutes, they may intentionally or unintentionally apply a broader standard to the County than permitted, therefore creating an unnecessary bias that will prejudice the County and confuse the jury as to the applicable liability standard and burden of proof. (Evid. Code §§ 350, 352.) Furthermore, given the clear statutory preclusion, the time spent introducing and opposing such evidence and arguments would be a waste of time. (See, Gov’t Code § 985.) III. CONCLUSION For the foregoing reasons, County respectfully requests this Court issue an Order precluding 18970 5 COUNTY OF ORANGE’S MIL NO. 11 1 Plaintiffs, Plaintiffs’ counsel, or any other party or witness to this action from introducing any 2 arguments or evidence on any alleged violation(s) of a statutory duty under Government Code § 3 815.6 and/or pursuant to Civil Code § 3480, Civil Code § 3479, Orange County Code § 7-9-132.2, 4 Orange County Code § 4-9-285, Vehicle Code § 17001, Vehicle Code § 21350, Vehicle Code § 5 21351, or any theory that is inconsistent with Government Code § 835. 6 7 DATED: February 4, 2019 COLLINS COLLINS MUIR + STEWART LLP 8 ? By: Lage 10 70D. PERKINS MICHAEL L. WRONIAK 11 Attorneys for Defendant 1 COUNTY OF ORANGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ff COUNTY OF ORANGE’S MIL NO. 11 PROOF OF SERVICE (CCP §§ 1013(a) and 2015.5; FRCP 5) State of California, ) ) ss. County of Orange. ) I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; my business address is 750 The City Drive, Suite 400, Orange, California 92868. On this date, I served the foregoing document described as DEFENDANT COUNTY OF ORANGE’S NOTICE OF MOTION AND MOTION IN LIMINE NO. 11 FOR AN ORDER TO PRECLUDE ANY DISCUSSION ON ALLEGED VIOLATION(S) OF A STATUTORY DUTY on the interested parties in this action by placing same in a sealed envelope, addressed as follows: SEE ATTACHED SERVICE LIST [J BY MAIL) - I caused such envelope(s) with postage thereon fully prepaid to be placed in the United States mail in Orange, California 0 x a to be served on the parties as indicated on the attached service list. I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Orange, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. (BY CERTIFIED MAIL) - I caused such envelope(s) with postage thereon fully prepaid via Certified Mail Return Receipt Requested to be placed in the United States Mail in Orange, California. BY EXPRESS MAIL OR ANOTHER METHOD OF DELIVERY PROVIDING FOR OVERNIGHT DELIVERY (BY ELECTRONIC FILING AND/OR SERVICE) -I served a true copy, with all exhibits, electronically via Dropbox on designated recipients listed on the attached Service List on: (Date) at (Time) FEDERAL EXPRESS - I caused the envelope to be delivered to an authorized courier or driver authorized to receive documents with delivery fees provided for. (BY FACSIMILE) - I caused the above-described document(s) to be transmitted to the offices of the interested parties at the facsimile number(s) indicated on the attached Service List and the activity report(s) generated by facsimile number (714) 823-4101 indicated all pages were transmitted. (BY PERSONAL SERVICE) - I caused such envelope(s) to be delivered by hand to the office(s) of the addressees). Executed on _February 4, 2019_ at Orange, California. (STATE) - I declare under penalty of perjury under the laws of the State of California that the above is true and correct. (FEDERAL) - I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Jazmine Aylor Jaylor @ ccmslaw.com ROSTRO v. COUNTY OF LOS ANGELES c/w GARCIA v. PETTIS OUR FILE NO. 18970 CASE NUMBER: 30-2014-00700005-CU-PA-CJC Lead Case c/w 30-2014-00703925-CU-PP-CJC SERVICE LIST Otto L. Hasehoff, Esq. LAW OFFICES OF OTTO L. HASSELHOFF, P.C. 201 Wilshire Blvd., Second Floor Santa Monica, CA 90401 (800) 667-1880; Fax: (800) 667-0991 otto @olhpc.com ATTORNEYS FOR PLAINTIFFS MARIA ESTHER VILLANUEVA ROSTRO, JUAN ALBERT CACIQUE VILLANUEVA, JUANA SALINAS HERNANDEZ AND AS GUARDIAN AD LITEM FOR JENNIFER CACIQUE VARGAS, ALONDRA CACIQUE VARGAS, CASSANDRA CACIQUE VARGAS Counsel unavailable 12/7/18 through 12/12/18 Michael Schonbuch, Esq. Taylor M. Smith, Esq. Erin Hallissy, Esq. DANIELS, FINE, ISREAL, SCHONBUCH & LEBOVITS, LLP 1801 Century Park East, 9 Floor Los Angeles, CA 90067 Hallisy @dfis-law.com (310) 556-7900 - Fax: (310) 556-2807 ATTORNEY FOR DEFENDANT/CROSS- COMPLAINANT/CROSS-DEFENDANT ROBERT MCFARLAND PETTIS & ROBERT MCFARLAND PETTIS, M.D., INC. Jack Briscoe. BREMBER WHYTE BROWN & O’MEARA, LLP 21215 Burbank Blvd, Ste 500 Woodland Hills, CA 91367 (818) 712-9800 - Fax: (818) 712-9900 ATTORNEYS FOR DEFENDANTS/CROSS- DEFENDANT DEKKEN NOLAN MCKEEVER Heidi.skinner@dot.ca.gov Ronald W. Beals, Chief Counsel Jeffrey R. Benowitz, Deputy Chief Counsel Glenn B. Mueller, Assistant Chief Counsel John Frederick Smith, Assistant Chief Counsel Heidi A. Wierman, Deputy Attorney Julie E. Saake, Deputy Attorney STATE OF CALIFORNIA LEGAL DIVISION 4050 Taylor Street, MS-130 San Diego, CA 92110 (619) 688-2531 - FAX: (619) 688-6906 ATTORNEYS FOR DEFENDANT/CROSS- COMPLAINANT STATE OF CALIFORNIA BY AND THROUGH THE DEPT. OF TRANSPORTATION Tigran Martinian, Esq. LAW OFFICES OF MARTINIAN & ASSOCIATES 2801 W. Cahuenga Blvd. Los Angeles, CA 90068 (323) 850-1900 - Fax (323) 850-1943 ATTORNEYS FOR PLAINTIFFS MARIA ESTHER VILLANUEVA ROSTRO, JUAN ALBERT CACIQUE VILLANUEVA, JUANA SALINAS HERNANDEZ AND AS GUARDIAN AD LITEM FOR JENNIFER CACIQUE VARGAS, ALONDRA CACIQUE VARGAS, CASSANDRA CACIQUE VARGAS Allan F. Davis, Esq. Patrick B. Embrey, Esq. ROBINSON CALCAGNIE, INC. 19 Corporate Plaza Drive Newport Beach, CA 92660 (949) 720-1288 - FAX: (949) 720-1292 ATTORNEYS FOR PLAINTIFFS RELATED CASE: MARIBEL ALEJANDRE GARCIA, INDIVIDUALLY AND AS GUARDIAN AD LITEM FOR ANDREA GARCIA ALEJANDRE, A MINOR, FAVIAN GARCIA ALEJANDRE, A MINOR; AND AS SUCCESSOR IN INTEREST TO ARMANDO GARCIA GONZALES, DECEASED adavis @robinsonfirm.com Marla G. Ness, Esq. SKEBBA, ISAAC & BUECHLER One MacArthur Place, Ste 650 Santa Ana, CA 92707 (714) 436-2700 - FAX: (877) 569-7395 ATTORNEY FOR DEFENDANTS/CROSS-DEFENDANT MISSION IMPORTS AND MISSION IMPORTS DBA MERCEDES BENZ OF LAGUNA NIGUEL, SUED IMPROPERLY HEREIN AS MERCEDES BENZ OF LAGUNA NIGUEL