Maria Esther Villanueva Rostro vs. Robert Pettis

Motion in Limine

Cal. Super. - 4th Dist.January 21, 2014

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 Michael L. Wroniak, Esq. (State Bar No. 210347) John D. Perkins, Esq. (State Bar No. 242984) COLLINS COLLINS MUIR +STEWART LLP 750 The City Drive, Suite 400 Orange, CA 92868-4940 (714) 823-4100 - FAX (714) 823-4101 Attorneys for Defendant, COUNTY OF ORANGE ELECTRONICALLY FILED Superior Court of California, County of Orange 02/07/2019 at 07:19:00 PM Clerk of the Superior Court By Clarissa Bustamante, Deputy Clerk Exempt from Payment of Filing Fee Pursuant to Govt. Code § 6103. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE - CENTRAL JUSTICE DISTRICT 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-CJC (aka CASIQUE) VILLANUEVA, an ) individual; JUANA SALINAS HERNANDEZ, individually, and as guardian ad litem for JENNIFER CACIQUE (aka CASIQUE) VARGAS, a minor, ALONDRA CACIQUE (aka CASIQUE) VARGAS, a minor; and CASSANDRA CACIQUE (aka CASIQUE) VARGAS, a minor,, Plaintiff, VS. ROBERT PETTIS an individual; DEKKEN NOLAN MCKEEVER, an individual; MISSION IMPORTS, a business entity form unknown; MERCEDES BENZ LAGUNA NIGUEL, a business entity form unknown; THE STATE OF CALIFORNIA including but not limited to CALTRANS and the DEPARTMENT OF TRANSPORTATION, a) governmental entity; COUNTY OF ) ORANGE, a governmental entity; CITY OF ) LAGUNA BEACH, a governmental entity; ) CITY OF LAGUNA HILLS, a governmental ) entity; CITY OF LAGUNA NIGUEL, a ) governmental entity; LAGUNA BEACH ) ) ) N e N N N e N e N e N e N e N N N e N e N e N N N N N r COUNTY WATER DISTRICT, a governmental entity; CITY OF IRVINE, a 18970 1 [Assigned to Judge John C. Gastelum, Dept. C11] DEFENDANT COUNTY OF ORANGE’S NOTICE OF MOTION AND MOTION IN LIMINE NO. 6 TO EXCLUDE EVIDENCE, ARGUMENT, OR REFERENCE TO COUNTY’S FINANCIAL STATUS, POPULATION, SIZE, BUDGET, OR REVENUE; DECLARATION OF MICHAEL L. WRONIAK IN SUPPORT THEREOF Complaint Filed: 02/10/14 Trial Date: 02/13/19 COUNTY OF ORANGE’S MIL NO. 6 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 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 evidence or making reference to the financial status of the County or its departments, and any indicators of financial status such as population, size, budget, or tax revenue, whether in voir dire, argument, or during the presentation of evidence. This motion is made on the grounds that evidence of the County’s financial status is not probative of the issues in dispute and is therefore irrelevant under Evidence Code sections 210, 350, and 403. Furthermore, any reference to or evidence of the County’s financial status is more prejudicial than probative and therefore can be excluded under Evidence Code section 352. This motion is based upon this Notice, the attached Memorandum of Points and Authorities, the attached declaration of Michael L. Wroniak, 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 16D. PERKINS MICHAEL L. WRONIAK Attorneys for Defendant COUNTY OF ORANGE 18970 2 COUNTY OF ORANGE’S MIL NO. 6 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. INTRODUCTION This dangerous condition action arises out of a car accident that took place on April 2, 2013, where Defendants Robert Pettis, M.D. and Dekker McKeever, M.D. were apparently racing each other northbound on I-133 (Laguna Canyon Road) as they passed through and beyond its intersection with El Toro Road. Doctor Pettis crossed over the painted center median island (consisting of two sets of double yellow lines approximately 11 feet apart) and into oncoming southbound traffic, colliding head-on with a southbound Honda Accord, killing driver Alberto Casique and his passenger, Armando Gonzalez. The family of decedent Casique filed a wrongful death action against the County, asserting that the accident location was a dangerous condition at the time of the accident. Plaintiffs assert a variety of factors contributed to the dangerous condition, including lack of a center median barrier, a short merge lane and obscured signage warning of the merge. To that end, Plaintiffs’ primary contention is that the shot merge lane creates an inherently dangerous condition because it creates a “conflict” between motorists trying to negotiate the merge. At trial, County anticipates Plaintiffs will leverage a “deep pocket” approach to litigation that would prejudicially and unfairly suggest to the jury that the County can absorb any award they render. The risk is that a jury will award damages even in the absence of liability simply because County operates on a large budget. Accordingly, County respectfully requests that this Court issue an order prohibiting Plaintiff from introducing any evidence or making reference to the financial status of County or its departments, and any indicators of financial status such as population, size, budget, or tax revenue, whether in voir dire, argument, or during the presentation of evidence. II. THE COURT HAS THE INHERENT AUTHORITY TO GRANT MOTIONS IN LIMINE Motions in limine are used to preclude prejudicial or objectionable evidence before it is presented to the jury. Blanks v. Shaw (2009) 171 Cal.App.4th 336, 375 (the usual purpose of a motion in limine is to preclude the presentation of evidence deemed inadmissible and prejudicial by 18970 3 COUNTY OF ORANGE’S MIL NO. 6 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 the moving party); Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal.App.3d 272, 288; K.C. Multimedia, Inc. v. Bank of America Technology & Operations, Inc. (2009) 171 Cal.App.4th 939, 951-952. The primary advantage of the motion is to avoid the futile attempt of trying to undo the harm done where jurors have been exposed to damaging evidence, even where stricken by the court. This scenario has been described as “the obviously futile attempt to ‘unring the bell’ in the event a motion to strike is granted in the proceedings before the jury.” Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 337; Amtower v. Photon Dynamics, Inc. (2008) 158 Cal. App.4th 1582, 1593. Motions in limine serve other purposes as well, such as permitting more careful consideration of evidentiary issues than would take place during the heat of battle during trial, which minimizes side-bar conferences and disruptions during trial. People v. Morris (1991) 53 Cal.3d 152, 188, overruled on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn.1. They also resolve potentially critical issues at the outset, which enhances the efficiency of trials and promotes settlements. Id. “Under appropriate circumstances, a motion in limine can function as a ‘motion to exclude’ under Evidence Code Section 353 by allowing the trial court to rule on a specific objection to particular evidence.” Id. III. EVIDENCE OF THE COUNTY’S FINANCES, SIZE, POPULATION, BUDGET AND REVENUE IS IRRELEVANT AND MUST BE EXCLUDED Only relevant evidence is admissible at trial. Evid. Code § 350. Relevant evidence is defined as “evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” Evid. Code § 210. The test of relevance allows evidence if it establishes material facts, whether logically, naturally, or by reasonable interference. Coffey v. Shiomoto (2015) 60 Cal.4th 1198. Here, Plaintiffs’ allege the County’s property was a dangerous condition of public property under Government Code section 835. Evidence of the County’s financial condition is not an element of a dangerous condition claim. Gov't Code § 835. Thus, while there are numerous 18970 4 COUNTY OF ORANGE’S MIL NO. 6 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 disputed facts in this matter, evidence of the County’s financial status has no tendency in reason to prove or disprove any of those disputed facts in this action. IV. THE PROBATIVE VALUE OF EVIDENCE OF THE COUNTY’S FINANCIAL CONDITION IS OUTWEIGHED BY THE SUBSTANTIAL UNFAIR PREJUDICE AGAINST THE COUNTY Evidence Code section 352 permits the exclusion of evidence where the court in its discretion determines that its “probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” Here, the County contends that there is no probative value to the admission of its financial condition. However to the extent there is any such probative value, it is outweighed by the substantial undue prejudice to the County. The only purpose for presenting evidence of the County’s financial condition would be to argue to the jury that the County can financial afford a substantial verdict. This is especially true where we have two individual defendants in Doctors Pettis and McKeever, who have limited assets from which to pay a substantial verdict against them. The clear goal here would be to get the jury to award damages to Plaintiffs’ based solely on the theory that the County can afford to bear such a verdict (i.e., that it has deep pockets). Any such evidence is inadmissible under Evidence Code sections 210, 350 and 351. Further, for the reasons articulated here, the evidence of the County’s size, population, budget, revenue, or financial status would but be unduly prejudicial to a fair trial. See e.g., Hoffman v. Brandt (1966) 65 Cal.2d 549, 552-53 (“Justice is to be accorded to rich and poor alike, and a deliberate attempt by counsel to appeal to social or economic prejudices of the jury, including the wealth or poverty of the litigants, is misconduct where the asserted wealth or poverty is not relevant to the issues of the case”); Love v. Wolf (1964) 226 Cal. App.2d 378, 389 (improper to argue that jury should award large damages because defendant is rich). Any evidence that would reveal the financial status of the County would result in unfair prejudice. Evidence of the County’s finances 18970 5 COUNTY OF ORANGE’S MIL NO. 6 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 has the tendency to persuade the jury to award damages on an improper basis instead of the evidence and thus should be excluded as prejudicial. V. A FOUNDATIONAL SHOWING UNDER EVIDENCE CODE SECTIONS 402 AND 403 SHOULD BE REQUIRED PRIOR TO ADMISSION OF ANY EVIDENCE OF THE COUNTY’S FINANCIAL CONDITION Evidence Code section 402(a) provides for a foundational showing of the existence or nonexistence of a disputed fact. “The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury...” Evid. Code § 402(b). Further, Evidence Code section 403(a) instructs that the proponent of proffered evidence “has the burden of producing evidence as to the existence of the preliminary fact.” Section 403(a) also states that the “proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact, when: ... [t]he relevance of the proffered evidence depends on the existence of the preliminary fact [...]. Here, it is anticipated that Plaintiffs will attempt to proffer evidence of the County’s financial condition. The admissibility of any such evidence is dependent upon the evidence being relevant to any disputed issue in this matter. As the mater relates the an alleged dangerous condition of public property, and financial conditions is not an element of such a claim, the County requests a 402 hearing on the admissibility of evidence of the County’s financial condition prior to the admission of any such evidence or testimony. 1" 1" 1" 1" 1" In 1" In 18970 6 COUNTY OF ORANGE’S MIL NO. 6 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 VI. CONCLUSION For each of the foregoing reasons, the County respectfully requests that the Court grant this motion in full and issue an order prohibiting Plaintiffs from introducing any evidence or making reference to the financial status of County or its departments, and any indicators of financial status such as population, size, budget, or tax revenue, whether in voir dire, argument, or during the presentation of evidence. In the alternative, County requests a hearing under Evidence Code section 402 regarding the admissibility of any such evidence outside of the presence of the jury. DATED: February 4, 2019 COLLINS COLLINS MUIR + STEWART LLP . PERKINS MICHAEL L. WRONIAK Attorneys for Defendant COUNTY OF ORANGE 18970 7 COUNTY OF ORANGE’S MIL NO. 6 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 DECLARATION OF MICHAEL L. WRONIAK I, Michael L. Wroniak declare as follows: I. I am an attorney at law, duly licensed to practice before all of the courts of the State of California, and I am a Partner with the law firm of Collins Collins Muir + Stewart LLP, attorneys of record for Defendant County of Orange (“County”). The following is based upon my personal knowledge, or matters made known to me, and if called upon to testify as a witness, I could and would competently do so. 2 County anticipates Plaintiffs will leverage a “deep pocket” approach to litigation that would prejudicially and unfairly suggest to the jury that the County can absorb any award they render. The risk is that a jury will award damages even in the absence of liability simply because County operates on a perceived large budget. 3. The County will be unduly prejudiced should Plaintiffs be permitted to present evidence, testimony, argument, or make reference to the County’s financial status, size, population, budget or revenue because this evidence is irrelevant to a claim of a dangerous condition of public property. There is a legitimate risk that the jury will find that the County should be liable simply because County is deemed to have the ability to pay a large award. It is paramount to a fair trial that the jury be focused on the issues of this case and not on the financial status of the County. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on this 4th day of February, 2019, in Orange, California. 18970 8 COUNTY OF ORANGE’S MIL NO. 6 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. 6 TO EXCLUDE EVIDENCE, ARGUMENT, OR REFERENCE TO COUNTY’S FINANCIAL STATUS, POPULATION, SIZE, BUDGET, OR REVENUE; DECLARATION OF MICHAEL L. WRONIAK IN SUPPORT THEREOF on the interested parties in this action by placing same in a sealed envelope, addressed as follows: ad 0 x a SEE ATTACHED SERVICE LIST (BY MAIL) - I caused such envelope(s) with postage thereon fully prepaid to be placed in the United States mail in Orange, California 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, 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