Plaintiffs_motion_in_limine_no_5MotionCal. Super. - 4th Dist.July 8, 2015P A N I S H S H E A & B O Y L E LL P 11 11 1 Sa nt a Mo ni ca Bo ul ev ar d, Su it e 70 0 Lo sA ng el es , Ca li fo mi a 90 02 5 31 0. 47 7. 16 99 fa x 31 0. 47 7. 17 00 p h o n e « ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PANISH SHEA & BOYLE LLP ADAM SHEA, State Bar No. 166800 shea@psblaw.com ELECTRONICALLY FILED Superior Court of California, County of Orange 1013/2017 at 05:32:00 FM RYAN A. CASEY, State Bar No. 271865 casey@psblaw.com PATRICK GUNNING, State Bar No. 280457 gunning @psblaw.com 11111 Santa Monica Boulevard, Suite 700, Los Angeles, California 90025 Telephone: 310.477.1700; Facsimile: 310.477.1699 Clerk of the Superior Court By Bnma Castle, Deputy Clerk MOREY & UPTON, LLP JOHN H. UPTON, State Bar No. 137169 hupton @mulaw.com SEAN D. HENNESSEY, State Bar No. 157005 seanhennesseyesq@ gmail.com JASON A. McDANIEL, State Bar No. 275342 mcdani45 @ gmail.com 611 Anton Boulevard, Suite 800, Costa Mesa, California 92626 Telephone: 714.432.9555; Facsimile: 714.432.1292 Attorneys for Plaintiff SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER ROYA NESHAT, Case No. 30-2015-00797423-CU-PO-CJC Plaintiff, ASSIGNED FOR ALL PURPOSES TO: GREGORY H. LEWIS v. DEPARTMENT C-26 PLAINTIFF'S MOTION IN LIMINE #5 TO EXCLUDE EVIDENCE OF POST- INCIDENT REPLACEMENT OF THE BALCONY AFTER THE INCIDENT AND RELATED PERMITTING PROCESS ALL-PRO REMODELING; ALL-PRO REMODELING, INCORPORATED.; JOHN JOHNSTON; and DOES 1 through 100, inclusive, Defendants. Date: 10/16/2017 Time: 8:30 A.M. TO THE HONORABLE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on October 16, 2017 at 8:30 a.m., or as soon thereafter as the matter may be heard in the above entitled Court, Plaintiff will move the Court in [imine for the following Orders: 111 1 PLAINTIFF'S MOTION IN LIMINE #5 P A N I S H S H E A & B O Y L E LL P 11 11 1 Sa nt a Mo ni ca Bo ul ev ar d, Su it e 70 0 Lo sA ng el es , Ca li fo mi a 90 02 5 31 0. 47 7. 16 99 fa x 31 0. 47 7. 17 00 p h o n e « ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 I. An Order excluding all evidence or reference to the process of constructing the replacement balcony at Ms. Neshat's home, and the permitting process for that work. This Motion is made pursuant to California Evidence Code Sections 350, 352 on the grounds that it is irrelevant and highly prejudicial; and would necessitate undue consumption of time. It would also constitute improper character evidence. This Motion is based upon this Notice, the Memorandum of Points and Authorities filed concurrently herewith, all pleadings, papers, records, and other documents and materials on file, deemed to be on file, or of which notice may be taken herein at the time that this Motion is heard, and upon any oral argument made at the hearing of this Motion. PANISH SHEA & BOYLE LLP 7 7 be => DATED: October 13, 2017 By: Patrick K. Gunning Attorneys for Plaintiffs 2 PLAINTIFF'S MOTION IN LIMINE #5 P A N I S H S H E A & B O Y L E LL P 11 11 1 Sa nt a Mo ni ca Bo ul ev ar d, Su it e 70 0 Lo sA ng el es , Ca li fo mi a 90 02 5 31 0. 47 7. 16 99 fa x 31 0. 47 7. 17 00 p h o n e « ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION AND STATEMENT OF FACTS On January 11, 2014, at approximately 10:15 p.m., Plaintiff Roya Neshat fell from her second story master bedroom after exiting through a door that she expected would lead to her balcony. Ms. Neshat fell over 12 feet to the concrete below and landed with such force that her body bounced up and impacted the concrete a second time. The incident caused her multiple bodily fractures, including a fractured hip, broken elbow, and a broken shoulder, as well as other physical injuries. In late 2013, Roya Neshat contracted with Defendant All-Pro Remodeling and its principal, defendant John Johnson, to replace and build a new outdoor patio balcony outside of her second story master bedroom. After completing a day of construction, and without any clear warning to Roya, All-Pro demolished the balcony and took no steps to barricade, bar, or warn occupants from using the master bedroom door which led to the removed deck. Instead, the door was left intact without any plywood shield, not a single warning sign, cone, caution tape, or any other barricade, rendering it unsafe. In deposition of Plaintiff's expert West Harrington, Defendants’ attorneys inquired about the permitting process that occurred for the post-incident construction of a new balcony on the 2" story of Ms. Neshat's house by a different company. These questions included asking about whether building permits and/or HOA approval had been obtained for that work. This evidence is irrelevant, more prejudicial than probative, improper character evidence, and should be excluded. II. ARGUMENT Section 352 provides that "[t]he Court in its discretion 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." Section 350 further provides that only relevant evidence is admissible. During the deposition of Plaintiff's construction standard of care expert West Harrington, Defendants’ attorneys asked multiple questions about the permitting process for the construction of a replacement balcony by a different contractor which occurred after the subject incident. 3 PLAINTIFF'S MOTION IN LIMINE #5 P A N I S H S H E A & B O Y L E LL P 11 11 1 Sa nt a Mo ni ca Bo ul ev ar d, Su it e 70 0 Lo sA ng el es , Ca li fo mi a 90 02 5 31 0. 47 7. 16 99 fa x 31 0. 47 7. 17 00 p h o n e « ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 Q. And do you have an opinion as to at the time Ms. Neshat resumed the deck replacement process, if she had a permit from Mission Viejo before she started construction? A No, I don't. Q Okay. Do you recall that being discussed in Ms. Green's deposition? A Idon't recall, no. Q Do you recall Ms. Green saying they sent a warning to Ms. Neshat about the fact that she had begun the construction process of the deck after the demolition without having an approved permit? A Tdon't recall that. As an exhibit to Ms. Green's depo, the patio replacement information was provided. So I just saw that there was -- looked like there was an approval and that -- to undertake the work eventually. Q But as you sit here today, do you know if that approval was obtained before construction commenced or after the construction commenced? A Idon't recall. Q All right. Doesn't have an impact on your opinions one way or the other? A No. (Exh. 1, Harrington depo, p. 56:11-57:9.) This has no probative value to the case, is after the subject incident, and would only be used to offer improper character evidence against Ms. Neshat. It should be excluded. III. DATED: October 13, 2017 CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that this Motion be granted. PANISH SHEA & BOYLE LLP 7 723 2 —= By: Patrick Gunning Attorneys for Plaintiffs 4 PLAINTIFF'S MOTION IN LIMINE #5 P A N I S H S H E A & B O Y L E LL P 11 11 1 Sa nt a Mo ni ca Bo ul ev ar d, Su it e 70 0 Lo sA ng el es , Ca li fo mi a 90 02 5 31 0. 47 7. 16 99 fa x 31 0. 47 7. 17 00 p h o n e « ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 DECLARATION OF PATRICK GUNNING I, Patrick Gunning, declare as follows: Ls I am an attorney duly admitted to practice before this Court. I am an associate with Panish Shea & Boyle LLP, attorneys of record for Plaintiff. I have personal knowledge of the facts set forth herein, except as to those stated on information and belief and, as to those, I am informed and believe them to be true. If called as a witness, I could and would competently testify to the matters stated herein. 2. Attached hereto as Exhibit 1 are true and accurate excerpts from the deposition of West Harrington. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on this 13th day of October, 2017, at Los Angeles, California. 7 77 7% 7 Pe ey Y Patrick Gunning 1 PLAINTIFF'S MOTION IN LIMINE #5 EXHIBIT 1 WEST HARRINGTON September 20, 2017 NESHAT vs ALL PRO REMODELING 1 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE - CENTRAL JUSTICE CENTER ROYA NESHAT, Plaintiff, VS. No. 30-2015-00797423 -CU-PO-CJ C ALL-PRO REMODELING: ALL PRO CONSTRUCT! ON REMODELING, | NC.: J OHN J OHNSTON; and DOES 1 through 100, inclusive Defendants DEPOSI TI ON OF EXPERT WEST HARRI NGTON Wednesday, September 20, 2017 10:05 a.m 10470 Foothill Boulevard, Suite 230 Rancho Cucamonga, California Jennifer D. Barker, CSR No. 12168 Z ESQUIRE 800.211.DEPO (3376) DEPOSITION SOLUTIONS EsquireSolutions.com WEST HARRINGTON September 20, 2017 NESHAT vs ALL PRO REMODELING 56 1 But before she resumed construction -- well 2 |sorry., 3 All-Pro did the demolition, correct? : A Correct. But they began a project without 5 |having approval from the HOA for the deck that they 6 [intended to install. 1 Q Understood, 8 A Nor did they have a permit fromthe City of 9 [Mission Viejo. 10 Q Correct. 11 And do you have an opinion as to at the time 12 | Ms. Neshat resumed the deck replacement process, if she 13 |had a permit from Mission Viejo before she started 14 |construction? 15 A No, | don't. 16 Q Okay. Do you recall that being discussed in 17 | Ms. Green's deposition? 18 A | don't recall, no. 19 Q Do you recall Ms. Green saying they sent a 20 |warning to Ms. Neshat about the fact that she had begun 21 [the construction process of the deck after the demolition 22 [without having an approved permit? 23 A | don't recall that. As an exhibit to 24 | Ms. Green's depo, the patio replacement information was 25 |provided. So | just saw that there was -- looked Iike Z ESQUIRE 800.211.DEPO (3376) DEPOSITION SOLUTIONS EsquireSolutions.com 11:22 11:22 11:22 11:22 11:13 WEST HARRINGTON September 20, 2017 NESHAT vs ALL PRO REMODELING 57 1 [there was an approval and that -- to undertake the work _2 Jeventually. 3 Q But as you sit here today, do you know if that 4 |approval was obtained before construction commenced or 5 |after the construction commenced? 6 A | don't recall. 1 Q All right. Doesn't have an impact on your 8 |opinions one way or the other? 9 A No. 10 Q In your CV, you identify the fact that you're a 11 [member of an Occupational Health and Safety Committee for 12 | ASTM; is that correct? 13 A Correct, 14 Q Is there any part of the information that you've 15 [obtained as a member of that committee through ASTM that 16 [impacts or influences your opinions here today? 17 A No. 18 Q Did you review or rely on any trade publications 19 [in formulating your opinions? 20 A No. 21 Q Did you review any legal authority, cases, 22 (California cases or cases from any other sort of juris 23 |prudence that impacted your opinions? 24 A No. 25 Q Have you discussed any juris prudence with Z ESQUIRE 800.211.DEPO (3376) DEPOSITION SOLUTIONS EsquireSolutions.com 11:13 11:13 11:13 11:24 11:24 P A N I S H S H E A & B O Y L E LL P 11 11 1 Sa nt a Mo ni ca Bo ul ev ar d, Su it e 70 0 Lo sA ng el es , Ca li fo mi a 90 02 5 31 0. 47 7. 16 99 fa x 31 0. 47 7. 17 00 p h o n e « ~N O Y B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Los Angeles, State of California. My business address is 11111 Santa Monica Boulevard, Suite 700, Los Angeles, CA 90025. On October 13, 2017, I served true copies of the following document(s) described as PLAINTIFF'S MOTION IN LIMINE #5 TO EXCLUDE EVIDENCE OF POST-INCIDENT REPLACEMENT OF THE BALCONY AFTER THE INCIDENT AND RELATED PERMITTING PROCESS on the interested parties in this action as follows: SEE ATTACHED SERVICE LIST BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the document(s) to be sent from e-mail address gunning @psblaw.com to the persons at the e-mail addresses listed in the Service List. The document(s) were transmitted at or before 5:00 p.m. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on October 13, 2017, at Los Angeles, California. 2 : A Lar #7 y Patrick Gunning By: 1 PLAINTIFF'S MOTION IN LIMINE #5
