James Condon vs. R.J. Noble Company

Opposition

Cal. Super. - 4th Dist.October 7, 2014

= wn Xo oo ~ J oo Ted B. Wacker, Esq. (State Bar. No. 157416) Whit D. Berich, Esq. (State Bar. No. 298933) LAW OFFICES OF TED B. WACKER 1000 Newport Center Drive Newport Beach, CA 92660 Tel: (949) 706-7100 Fax: (949) 209-2558 twacker@tbwlawfirm.com wbertchi@tbwlawfirm.com Michael D. Weinreb WEINREB LAW, PC 19400 Business Center Drive, Ste 102 Northridge, CA 91324 Tel: (818) 886-6600 I'ax: (818) 772-9739 Attorneys for Plaintiff SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE — CENTRAL JUSTICE CENTER JAMES CONDON Plaintiff, VS. R.J. NOBLE COMPANY: MATERIAL TRANSPORT SERVICVES. IN.: THE CITY OF DANA POINT: TREVOR MATTIIELW MAYO; ANDREA KATHERINE KELLY: and DOES Ito 20, Inclusive Defendants. AND ALL RELATED CROSS-ACTIONS Case No.: 30-2014-00749233 ASSIGNED FOR ALL PURPOSES TO: HONORABLE DEBORAII SERVINO DEPT.: C-22 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION IN LIMINE NO. 6 TO EXCLUDE EVIDENCE OR ARGUMENT ABOUT MTS’S ALLEGED POST-ACCIDENT CONDUCT; MEMORANDUM OF POINTS AND AUTHORITIES Trial: January 11. 2016 Time: 9:30 a.m. Complaint Filed: October 7, 2014 PLAINTIFF'S OPPOSITION TO MOTION IN LIMINE NO. 6 TO EXCLUDE EVIDENCE OR ARGUMENT ABOUT MTS'S ALLEGED POST-ACCIDENT CONDUCT ro hn B= Ww 20 TO ALL PARTIES AND TO THEIR RESPECTIVE ATTORNEYS OF RECORD: Plaintiff hereby does submit this Opposition to Delendant’s Motion in Limine No. 6 to exclude evidence or argument about MTS’s alleged post-accident conduct. This motion is based on the Memorandum of Points and Authorities, in support thereof. This motion is further based upon all pleadings and documents in this case, including those filed with this Court, and upon all further documentary and oral evidence that may be presented at the time of the hearing on this motion. This motion is further based upon all applicable California statutes and case law. Dated: January 8, 2016 LAW OFFICES OF TED B, WACKER By: ov Ted B. Wacker, Esq. Whit D. Berlgh, Esq. Attorneys for Plaintiff 2 PLAINTIFF'S OPPOSITION TO MOTION /N LIMINE NO. 6 TO EXCLUDE EVIDENCE OR ARGUMENT ABOUT MTS’S ALLEGED POST-ACCIDENT CONDUCT = 0 o o ~J > hn + le d r a —_ — B d p e e e e e d e d b e d e d p m e e 0 ~~ oO th B= W N ) 19 MEMORANDUM OF POINTS AND AUTHORITIES Plaintiff James Condon hereby opposes Defendant’s Motion in Limine #6 as it is vague, ambiguous and overbroad. The court may in its sole discretion deny a motion in limine on the basis of sound discretion. Konfinger v. Corand Central Public Market (1964) 60 Cal. App. 2d 852: Kelly v. New West Federal Sav., (1996) 49 Cal. App. 4" 659. This is especially true in this instance in which it is not clear what specific piece of evidence or testimony defendant seeks to exclude but rather makes a blanket request. A Motion in Limine is supposed to address specific evidence a party seeks to exclude. This motion docs not address a specific piece of evidence but rather just vaguely discusses the concept of preventing Plaintiff’s from offering evidence of Post-Accdident Acts without referencing any specific evidence. It is therefore impossible for plaintiff, or the Court, to surmise exactly what evidence defendant seeks to exclude. As the Motion in Limine is vague to specific evidence, plaintiff respectfully request the motion be denied in its entirety. It should be noted. for example, that plaintiff does intend to call defendant’s supervisor Bryan Houchen in order to discuss the version of the events that defendant Mayo provided to his employer MTS and specifically to Mr. Houchen. It is plaintiff's contention that that defendant Mayo mispresented the facts of what happened at the time of the incident not only to the police who investigated the accident but also carried out this same misrepresentation of the facts to his employer aller the accident. It is plaintiff's further contention that defendant Mayo mispresented the true facts of what had happened namely that he failed to advise the police or his supervisor that he had completely moved into the #2 lane instead of straddling the #1 and #2 lanes as he claimed and misrepresented that there were cones in the roadway that he needed to avoid. Plaintiff contends that defendant Mayo mispresented this information as he knew that the maneuver he made in going completely into the #2 lane was wrong and violated trucking standards and so he told the same untruths to both the police and his employer after the accident in order to avoid responsibility. Therefore, the discussions and information defendant Mayo told to his employer about what he had done are directly relevant to his credibility as a witness in this case. It is PLAINTIFE'S OPPOSITION TO MOTION IN LIMINE NO, 6 TO EXCLUDE EVIDENCE OR ARGUMENT ABOUT MTS'S ALLEGED POST-ACCIDENT CONDUCT 4 vd ro wn = ND oo ~J =) dircetly conflict with what actually happened as evidenced by the Dash Cam video of the accident. Given the a party’s credibility and the statements they made about an accident are always relevant and at-issuc for the jury to decide, plaintiff would like to question defendant Mayo about his actions and what he explained to the police and his employer about what he did that day. Again, plaintiff contends that defendant Mayo fibbed about what happened as cvidenced by his handwritten statement to his employer. Ile did this in order to protect him and his job with R.J. Noble and in doing so failed to take responsibility for the catastrophic injuries he caused. Based upon the above, plaintiff respectfully requests that defendants motion in limine be denied in its entirety. Dated: January 7, 2016 LAW OFFICES OF TED B. WACKER By: Ted B. Watker, Esq. Whit D. Beyteh, Esq. Attorneys for Plaintiff 4 PLAINTIFF'S OPPOSITION TO MOTION IN LIMINE NO. 6 TO EXCLUDE EVIDENCE OR ARGUMENT ABOUT MTS'S ALLEGED POST-ACCIDENT CONDUC] w o eo 8 ua S n a 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is 1000 Newport Center Drive, Newport Beach, California 92660. On January 8, 2016, 2015, I served the within documents(s): PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION IN LIMINE NO. 6 TO EXCLUDE EVIDENCE OR ARGUMENT ABOUT MTS'S ALLEGED POST-ACCIDENT CONDUCT; MEMORANDUM OF POINTS AND AUTHORITIES [X] [MAIL] by placing the documents(s) listed above in the sealed envelope with postage fully prepaid, in the United States mail at Newport Beach, California, addressed as set forth below: IX] [E-MAIL] I caused the above-referenced document(s) to be served via e-mail to the attached- named person(s) at his/her/their e-mail address(es) of record. |] [FACSIMILE] by transmitting Via Facsimile the document(s) listed above to the fax number(s) set forth below on this date before 5:00 p.m. [1 [OVERNIGHT EXPRESS MAIL] by overnight courier of the document(s) listed above to the person(s) at the address(es) set forth below. || [PERSONAL DELIVERY] by causing delivery by of the document(s) listed above to the person(s) at the address(es) set forth below. [ORIGINAL PROOF OF PERSONAL SERVICE TO BE FILLED UNDER SEPARATE COVER] [1 [PERSONAL SERVICE] by personally delivering the document(s) listed above to the person(s) at the address(es) set forth below. SEE ATTACHED "SERVICE LIST" I am readily familiar with the firm's practice of collection and processing correspondence for mail. Under the practice, it would be deposited with the U.S. Postal Service on the same day with postage thereon fully prepaid 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. I declare under penalty of perjury under the laws of the State of California that the above is truc and correct. Executed on January 8, 2016, in Newport Beach, California. a l > 1 \ Geni Madrigal or PROOF OF SERVICE m R W N oe ee a & 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 "SERVICE LIST" Ruth Segal, Esq. Rosemary Do LYNBERG & WATKINS A Professional Corporation 888 South Figueroa Street, 16™ Floor Los Angeles, CA 90017 Tel: (213) 624-8700 Fax: (213) 892-2763 rsegal@lynberg.com rdo@lynberg.com Attorneys for Defendants, Cross- Defendants and Cross-Complainants R.J. NOBLE COMPANY and TREVOR MATTHEW MAYO; and Defendant and Cross-Complainant MATERIAL TRANSPORT SERVICES, INC. Marisa Rodriguez-Shapoval, Esq. Lee Roberts, Esq. WEINBERG, WHEELER, HUDGINS, GUNN & DIAL, LLC 6385 S. Rainbow Boulevard, Suite 400 Las Vegas, NV 89118 Tel: (702) 938-3838 Fax: (702) 938-3864 MRodriguez-Shapoval@wwhgd.com L.Roberts@wwhgd.com Attorneys for Defendants, Cross- Defendants and Cross-Complainants R.J. NOBLE COMPANY and TREVOR MATTHEW MAYO; and Defendant and Cross-Complainant MATERIAL TRANSPORT SERVICES, INC. 2 PROOF OF SERVICE