Juania Ardizzone vs. Jerry Ardizzone

Motion in Limine

Cal. Super. - 4th Dist.April 17, 2015

~~ ON 10 11 12 13 14 15 16 17 18 19 20 21 7 23 24 25 26 27 28 RICHARD L. FAHRNEY II (Bar No. 76357) FINGAL, FAHRNEY & CLARK, LLP 2301 Dupont Drive, Suite 350 Irvine, California 92612 (949) 723-8100 (949) 723-8108 Fax Attorneys for Plaintiff, Jerry Ardizzone SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER JUANIA ARDIZZONE, Plaintiff, Vv. JERRY ARDIZZONE; and DOES 1 through 20, inclusive, Defendants. TO ALL PARTIES AND TO THEIR RESPECTIVE ATTORNEYS OF RECORD Defendant Jerry Ardizzone (“Defendant”) moves in limine for an order bifurcating the punitive damage claims, and precluding the admission of evidence of Defendants’ wealth or financial condition unless and until it is proven by clear and convincing evidence that Defendant haS been guilty of malice, fraud or oppression in accordance with Civil Code § 3294. ELECTRONICALLY FILED Superior Court of California, County of Orange 12/30/2016 at 04:10:00 Ph Clerk of the Superior Court By Angelina Mguyen-Do, Deputy Clerk Case No. 30-2015-00783049-CU-PO-CIC [Assigned for all purposes to: Hon. Deborah Servino, Dept. C-22] DEFENDANT’ SMOTION IN LIMINE NO. 3 MOTION TO EXCLUDE EVIDENCE OF DEFENDANT’S FINANCIAL CONDITION AND TO BIFURCATE TRIAL Complaint Filed: April 17, 2015 Trial: January 9, 2017 MNMEEENDANTC MOTIAN IN TT IMINET AI 2 Ba O e Na N n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 are satisfied. This motion is based upon the following Memorandum, on the papers and records on file herein, and on such oral or documentary evidence as may be presented at the hearing on this Motion. MEMORANDUM OF POINTS AND AUTHORITIES IL SUMMARY OF THE MOTION Simply stated, Plaintiff cannot present sufficient evidence of any conduct of Defendant giving rise to an award of punitive damages. Consequently, the trial must be divided into phases and no evidence of defendant’s wealth or financial condition should be introduced in the first phase of the trial. For each of these reasons, this motion in /imine should be granted. 1L. THE COURT HAS THE DISCRETION TO GRANT THIS MOTION IN LIMINE A motion in limine is a motion made “at the threshold” of trial to exclude evidence deemed inadmissible and prejudicial by the movant. (FMC Corp. v. Plaisted & Cos. (1998) 61 Cal.App.4th 1132, 1168.) Its purpose is to “avoid the obviously futile attempt to ‘unring the bell” when highly prejudicial evidence is offered and then stricken at trial. (Hyatt v. Sierra Boa Co. (1978) 79 Cal.App.3d 325, 337-339.) Authority for motions in [imine are well recognized and may be inferred from the fact that California’s Rules of Court specifically prescribe the formatting and procedural requirements for such motions. (Cal. Rules of Court, Rule 3.112(f).) Furthermore, motions in limine serve other purposes as well, as noted in People v. Morris (1991) 53 Cal.3d 152, 188: “[motions in limine] permit more careful consideration of evidentiary issues then would take place in the heat of battle during trial. They minimize side-bar conferences and disruptions during trial, allowing for an uninterrupted flow of evidence. Finally, by resolving potentially critical issues at the outset, they enhance the efficiency of trial and promote settlements.” 2 NEEENDANTIQ MOTION INT IMINE NO c o ~~ \O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IIL. CIVIL CODE SECTION 3295 PRECLUDES THE INTRODUCTION OF EVIDENCE OF THE FINANCIAL CONDITION OF A DEFENDANT Upon application of any defendant, Civil Code § 3295 requires the court to preclude the admission of evidence of financial condition until there is a finding of oppression, fraud or malice under Civil Code § 3294. In particular, Civil Code § 3295(d) states: “The court shall, on the application of any defendant, preclude the admission of evidence of that defendant’s profits or financial conditions until after the trier of fact returns a verdict for plaintiff awarding actual damages and finds that a defendant is guilty of malice, oppression of fraud in accordance with section 3294. Evidence of profit and financial condition shall be admissible only as to the defendant or defendants found to be liable to the plaintiff and to be guilty of malice, oppression, or fraud.” | IV. CONCLUSION For the foregoing reasons, Defendant respectfully requests that the motion be granted in the interest of justice, and the Court bar Plaintiffs from requiring or producing documentary evidence or soliciting oral testimony concerning or referencing any of Defendant’s wealth of financial condition, unless and until the trier of fact returns a verdict for Plaintiff finding that the Defendant has been guilty of malice, oppression, or fraud, in accordance with Civil Code section 3294. DATED: December 30, 2016 Richard L. Fahrney, Esq., Attorneys for Defendant Jerry Ardizzoné, 3 NEEVAINANTC MOTION TN TF TMTNT Ni A T T O R N E Y S A T L A W 5 1 2 0 C a m p u s DR IV E, SU IT E 2 0 0 N E W P O R T BE AC H, C A L I F O R N I A 9 2 6 6 0 F I N G A L , F A H R N E Y & C L A R K , L L P OS NO N N hh B W N e ND N N N R N ND N e E e e t ed e e e e d XW N A L h A W N = D 0 Re N Y i n W N PROOF OF SERVICE I, Richard L. Fahrney, II, 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 that of Fingal, Fahrney & Clark, LLP, 5120 Campus Drive, Suite 200, Newport Beach, California 92660. On December 30 2016, I served the foregoing DEFENDANT’S MOTION IN LIMINE NO. 3 on interested parties in this action by placing a true copy thereof enclosed in a sealed envelope, addressed as follows. J. Michael Echevarria, Esq. (SBN 110418) ANGELO & WHITE 610 Newport Center Dr., Suite 830 Newport Beach, CA 92660 Telephone: (949) 640-0800 Facsimile: (949) 640-0887 Email: michael@angelowhitelaw.com Attorneys for Plaintiff Juania Ardizzone BY MAIL 1 deposited such envelope in the mail in Newport Beach, California. The envelope was mailed with postage thereon fully prepaid. Tam "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 the same day with postage thereon fully prepaid in Newport Beach, California in the ordinary course of business. [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 PERSONAL SERVICE I cause such envelope to be personally delivered to the addressee. XX VIA ELECTRONIC MAIL TO michael@angelowhitelaw.com Via electronic mail, I caused the above-referenced document to be transmitted to the email addressees at the email address shown on the attached service list. BY OVERNIGHT MAIL I deposited such envelope in the Overnight Express Mail at Newport Beach, California. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on December 30, 2016, at Newport Beach, “7 A, JY as 7 \ chard L. Fahrney, T PROOF OF SERVICE