Eru Pena Santos vs. Double Vision Concepts, Inc.

Motion in Limine

Cal. Super. - 4th Dist.May 15, 2014

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Kevin Mahoney (SBN: 235367) ELECTRONICALLY FILED kmahoney @mahoney-law.net Pe aunty of Orange Anna R. Salusky (SBN: 222484) Cem asalusky @mahoney-law.net 1252017 at B1 11300 Ph MAHONEY LAW GROUP, APC Clerk of the Superior Court 249 E. Ocean Blvd., Ste. 814 By Sarah Loose, Deputy Clerk Long Beach, CA 90802 Telephone: (562) 590-5550 Facsimile: (562) 590-8400 Attorneys for Plaintiffs ERU PENA SANTOS and TOM KIDWELL as individuals and on behalf of all employees similarly situated SUPERIOR COURT OF THE STATE OF CALIFORNIA THE COUNTY OF ORANGE COMPLEX CIVIL CENTER ERU PENA SANTOS and TOM KIDWELL Case No.: 30-2014-00723893-CU-OE-CXC as individuals and on behalf of all employees similarly situated PLAINTIFFS’ MOTION IN LIMINE .L NO. 1 TO EXCLUDE MENTION OF Plaintiff, ERU PENA SANTOS’S IMMIGRATION v STATUS Assigned for All Purposes to DOUBLE VISION CONCEPTS, INC dba Hon. Glenda Sanders, Dept.: CX 101 FISH WINDOW CLEANING, INC. a California corporation; BARRETT Pre-Trial Conference: December 18, 2017 BUSINESS SERVICES, INC., dba FISH Time: 9:00a.m. WINDOW CLEANING, INC., a Washington | PPL: CX101 corporation; PROSOURCE WINDOW Complaint Filed: May 15, 2014 CLEANING, a California Corporation; Trial Date: January 16, 2017 and DOES 1 through 50, inclusive Defendants. -1- PLAINTIFFS’ MOTION IN LIMINE NO. 1 TO EXCLUDE MENTION OF ERU PENA SANTOS’S IMMIGRATION STATUS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO THE HONROABLE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD: Plaintiffs ERU PENA-SANTOS and TOM KIDWELL (“Plaintiffs”) hereby move this court in limine pursuant to Evidence Code sections 350 and 352 for an order excluding Defendants from making any reference to or introducing any evidence about Plaintiff ERU PENA-SANTOS’S immigration status. The motion is made on the grounds that the evidence at issue is irrelevant, highly prejudicial, and inadmissible. Defendants’ only purpose in seeking to introduce any such evidence would be to prejudice Plaintiff Pena-Santos and to cause jurors to speculate about whether he should be prohibited from recovering any damages solely because of his immigration status. This motion is based on this Notice, the accompanying Memorandum of Points and Authorities, argument of counsel, and any other material the Court deems appropriate. Dated: December 15, 2017 MAHONEY LAW GROUP, APC By: /s/Anna R. Salusky Kevin Mahoney Anna R. Salusky Attorneys for Plaintiffs ERU PENA SANTOS and TOM KIDWELL as individuals and on behalf of all employees similarly situated. _0- PLAINTIFFS’ MOTION IN LIMINE NO. 1 TO EXCLUDE MENTION OF ERU PENA SANTOS’S IMMIGRATION STATUS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORDANUM OF POINTS AND AUTHORITIES I. INTRODUCTION The central issues in this case are whether Defendants are at fault for violating the California Labor Code and the California Private Attorneys’ General Act, in failing to pay all wages owed; failing to provide meal and rest periods as required by law; failing to pay all wages due upon ending employment; failing to keep accurate payroll records; failing to indemnify for business expenditures; unlawful discount of wages; violating the Unfair Competition Law; and failing to pay separate compensation for piece-rate employees, and whether Plaintiffs are entitled to damages for the injuries caused by those violations. Plaintiff Pena-Santos’s immigration status is not relevant to any of these issues, and questioning on these matters could be highly prejudicial to Plaintiffs and their case. For these reasons, Plaintiffs respectfully request this Court to issue an order precluding Defendants from introducing evidence about, mentioning, referring to, or questioning Plaintiff Pena-Santos about his immigration status. II. DISCUSSION a. Plaintiff Pena-Santos’s Immigration Status is not Relevant Evidence Code section 350 states that “(n)o evidence is admissible except relevant evidence.” Relevant evidence is defined by Evidence Code section 210 as “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (See, People v. Kelly (1992) 1 Cal. 4th 495, 523; People v. Haston (1968) 69 Cal.2d 233, 245.) All individuals, regardless of their immigration status, have a right to bring a civil action and to all remedies obtainable under state law: (a) All protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state. (Gov. Code Section 7285) The immigration status of any individual plaintiff does not tend to prove or dispute any disputed material fact or claim at issue in this action. In other words, there is no probative relationship between immigration status and multiple violations of the Labor Code or the injuries resulting therefrom. -1- MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 It follows, that because immigration status is not relevant in determining issues in this lawsuit, any such disclosure would place an undue burden on Plaintiff Pena-Santos. (Rivera v. Nibco, Inc. (2004) 364 F.3d 1057.) Plaintiff Pena-Santos’s immigration status has no bearing on the outcome of this case and his immigration status is not material to the calculation of his damages or to any other issue in this case. More importantly, it is well established that California acknowledges the irrelevance of immigration status in enforcement of state labor and employment laws. (See Sure—Tan, Inc. v. NLRB (1984) 467 U.S. 883, 893-894 [recognizing that enforcing labor laws on behalf of undocumented aliens reduces an employer's incentive to unlawfully hire them]; Reyes v. Van Elk, Lid. (2007) 148 Cal. App.4th 604, 617, 56 Cal.Rptr.3d 68 [“Allowing employers to hire undocumented workers and pay them less than the wage mandated by statute is a strong incentive for the employers to do so, which in turn encourages illegal immigration.”]; Farmer Brothers Coffee v. Workers’ Comp. Appeals Bd. (2005) 133 Cal.App.4th 533, 540, 35 Cal.Rptr.3d 23 [if unauthorized aliens were to be denied state labor law protections, “unscrupulous employers would be encouraged to hire aliens unauthorized to work in the United States, by taking the chance that the federal authorities would accept their claims of good faith reliance upon immigration and work authorization documents that appear to be genuine”].) Salas v. Sierra Chem. Co., 59 Cal. 4th 407, 426 (2014) b. Evidence, Argument, and Innuendo Regarding Plaintiff Pena-Santos’s Immigration Status Should Be Excluded Because it is Irrelevant and Would be Highly Prejudicial Evidence Code section 352 states that the Court may “exclude evidence if 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.” (See, People v. Cardenas (1982) 31 Cal.3d 897, 904 [prejudicial evidence]; People v. Sanders (1995) 11 Cal.4th 475, 514 [undue consumption of time]; People v. Wagner (1982) 138 Cal. App. 3d 473, 481 [jury confusion].) Even if Defendants could pen an argument that Plaintiff Pena-Santos’s immigration status is somehow relevant, any alleged probative value is far outweighed by the prejudice it would _0- MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 create. Evidence of or reference to immigration status could severely prejudice Plaintiff Pena- Santos’s case. Many people have a negative view of recent immigrants, especially undocumented immigrants from Mexico. Thus, Plaintiff Pena-Santos’s case could be harmed if jurors are allowed to hear that he is an immigrant and may have entered the country without documentation. Those jurors having a negative view of immigrants could be biased against Plaintiff Pena-Santos because of such testimony, which would be patently unfair. This is especially true at a time when there is renewed anti-immigrant sentiment. Defendants should not be allowed to question Plaintiff Pena- Santos in such a way as to highlight or hint at his immigration status. In sum, because jurors may harbor ill feelings and resentment toward immigrants, evidence of their status should be excluded as unduly prejudicial. Such prejudice would interfere with Plaintiff Pena-Santos’s ability to have a fair and impartial trial, and it would substantially outweigh any limited probative value of his immigration status. It should be excluded under Evidence Code section 352. III. CONCLUSION For all the foregoing reasons, Plaintiff Pena-Santos respectfully requests that the Court issue an Order precluding Defendants from making any reference to or introducing evidence of his immigration status. Plaintiff Pena-Santos’s immigration status is private, irrelevant and would be unduly prejudicial to him at trial. Dated: December 15, 2017 MAHONEY LAW GROUP, APC By: /s/Anna R. Saluksy Kevin Mahoney Anna R. Salusky Attorneys for Plaintiffs ERU PENA SANTOS and TOM KIDWELL as individuals and on behalf of all employees similarly situated. -3- MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE Code of Civ. Proc. § 1013a, subd. (3) I am employed in the County of Los Angeles, State of California. I am over the age of eighteen (18) and not a party to the within entitled action. My place of business is 249 E. Ocean Boulevard, Suite 814, Long Beach, CA 90802. On December 15, 2017, I served the foregoing document described as: PLAINTIFFS’ MOTION IN LIMINE NO. 1 TO EXCLUDE MENTION OF ERU PENA SANTOS’S IMMIGRATION STATUS on the interested parties in this action addressed as follows: Christopher L. Congleton Law Offices of Christopher L. Congleton 850 North Parton Street Santa Ana, CA 92701 Tele: (714) 543-8400 Attorney for Defendants Double Vision Concepts, Inc. dba Fish Window Cleaning, Inc., Prosource Window Cleaning, Chad Kunkel and Chris DeMarchi IX] By overnight delivery: I enclosed the document(s) in an envelope or package provided by Federal Express and addressed to the person(s) at the addresses above. I then placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. IX] By e-mail: Based upon court order or an agreement of the parties to accept service by e- mail, I caused the document(s) to be sent to the persons at the electronic service addresses listed above from the email address npierson @mahoney-law.net. Within a reasonable time after the transmission, no error, electronic message or any other indication that the transmission was unsuccessful was received. X (State): I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed December 15, 2017, in Long Beach, California. /s/Nicole Pierson Nicole Pierson -1- PROOF OF SERVICE