Catherine Lovell vs. asset Data Direct, Inc.

Opposition

Cal. Super. - 4th Dist.October 20, 2015

Oo 00 NN N n RA W N ‘ N N N N N = e m e s ee e e e e e m = AEGIS LAW FIRM, PC SAMUEL A. WONG, State Bar No. 217104 CINDY PHAM, State Bar No. 286893 9811 Irvine Center Drive, Suite 100 Irvine, California 92618 Telephone: (949) 379-6250 Facsimile: (949) 379-6251 ALI PARVANEH, State Bar No. 218320 MADISON HARBOR ALC 17702 Mitchell North Irvine, California 92612 Telephone: (949) 756-9050 Facsimile: (949) 756-9060 Attorneys for Plaintiff Catherine Lovell ELECTRONICALLY FILED Superior Court of California, County of Orange 0372472017 at 11:45:00 Aw Clerk of the Superior Court By & Clerk, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE - CENTRAL JUSTICE CENTER CATHERINE LLOVELL, an individual, Plaintiff, VS. ASSET DATA DIRECT, INC., a California corporation; BR DIRECT MARKETING, INC,, a California corporation; ACME ENVELOPE, INC., a California corporation; BART DAVIDSON, an individual; and DOES 1 through 20 inclusive. Case No.: 30-2015-00815822-CU-OE-CJC Assigned for all purposes to: Hon. Judge Randall J. Sherman Dept. C24 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 4 TO EXCLUDE EVIDENCE RE PLAINTIFE’S EMOTIONAL DISTRESS Date: March 27, 2017 Time: 8:30 a.m. Dept.: C-24 Complaint Filed: October 20, 2015 Trial Date: March 27, 2017 PLAINTIFFS OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 4 OO 0 J nv BR W N N O N O N N N N N N N em e m e m e e e d e m 0 ~~ O N Wn Ah W N = D VO N N N N R W N - O O MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION By way of their Motion in Limine No. 4 (“Motion”), Defendants Asset Data Direct, Inc., BR Direct Marketing, Inc., and ACME Envelope, Inc.’s (collectively “Defendants”) seek to exclude evidence of Plaintiff’s emotional distress on the mere basis that since Plaintiff has not designated a retained expert, due to Plaintiff’s alternate stressors, the jury cannot properly make a determination as to whether any emotional distress Plaintiff suffered was caused by Defendants’ alleged wrongdoing. Defendant’s Motion is improper, just like their other motions in limine, as it does not seek to exclude specific evidence but an overbroad category of evidence. Further, the issue of whether Plaintiff suffered any emotional distress caused by Defendants is a factual question that is reserved for the jury. Finally, Defendants hide the fact that Plaintiff's treating physicians will be testifying in this case, and that Plaintiff will personally testify to the emotional injuries she has sustained. II. LEGAL ARGUMENT A. DEFENDANTS’ MOTION IS VAGUE AND OVERBROAD Defendants’ Motion should be denied as vague and overbroad. An in limine motion for exclusion of evidence is addressed neither to allegations contained in a pleading nor to causes of action or specific issues; instead, it is directed toward specific evidence. (Dong v. Board of Trustees (1987) 191 Cal. App.3d 1572, 1584; emphasis added.) In their Motion, Defendants do not identify the specific evidence they are requesting to have excluded, and are simply attempting to enforce a general proposition: that all evidence pertaining to Plaintiff's emotional distress be excluded. Such a Motion is improper and should be denied. B. EVIDENCE OF PLAINTIFF’S EMOTIONAL INJURY IS PROBATIVE AND ADMISSIBLE Defendants make the confusing argument that “Plaintiff should not be permitted to introduce non-expert evidence alone regarding her alleged emotional distress” because she has not designated an expert for the emotional distress claim. (Motion, Pg. 3, Lines 25 - 26.) However, Defendants cite no case law or authority to support the argument that expert evidence is required before providing non- expert evidence of an emotional distress claim. In fact, Courts have long held that “although expert PLAINTIFF’S OPPOSITION TO DEFENDANTS” MOTION IN LIMINE NO. 4 2- OO 0 1 A nh ke W N = N O N N N m e e m e m e m e m = em testimony may undoubtedly be helpful, it is not necessary to establish a basis for an award for pain; lay testimony suffices.” (Capelouto v. Kaiser Found. Hosps. (1972) 7 Cal. 3d 889, 895; see also Hilliard v. A. H. Robins Co. (1983)148 Cal. App. 3d 374, 413 [“The absence of medical bills or medical testimony will not foreclose a recovery for pain and suffering.”); see also Plotnik v. Meihaus (2012) 208 Cal. App. 4th 1590, 1602 [“There is no fixed or absolute standard by which to compute the monetary value of emotional distress,” and a “jury is entrusted with vast discretion in determining the amount of damages to be awarded...”].) Regardless of the weight of such evidence, Defendants failed to show by way of their Motion that non-expert evidence of Plaintiff's emotional distress is irrelevant, prejudicial, or inadmissible on any other ground. Thus, Defendants’ Motion should be denied in its entirety. III. CONCLUSION Based on the foregoing, Plaintiff respectfully requests that this Court deny Defendants’ Motion in Limine No. 4 to Exclude Evidence Re Plaintiff”s Emotional Distress. Respectfully submitted on this 23™ day of March, 2017 by: AEGIS LAW FIRM, PC Cindy Pham Attorney for Plaintiff Catherine Lovell PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 4 3 NO 0 N N BR W N DO N N N N N N N N m m e m o e m e m m d e m e m mb pe c o 1 A Y BA W R N O D N N BR W O R N e= m o CERTIFICATE OF SERVICE I, the undersigned, 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; am employed with Aegis Law Firm PC and my business address is 9811 Irvine Center Drive, Suite 100, Irvine, California 92618. On March 24, 2017, I served the foregoing document entitled: e PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION IN LIMINE NO. 4 TO EXCLUDE EVIDENCE RE PLAINTIFF'S EMOTIONAL DISTRESS on all the appearing and/or interested parties in this action by placing [_] the original [X] a true copy thereof enclosed in sealed envelope(s) addressed as follows: Todd R. Wulffson Ali Parvaneh Emily K. Borman MADISON HARBOR, ALC Carothers DiSante & Freudenberger LLP aparvaneh@madisonharbor.com twulffson@cdflaborlaw.com eborman@cdflaborlaw.com Attorneys for Defendants: Co-Counsel for Plaintiff Asset Data Direct, Inc.; BR Direct Marketing, Inc.; ACME Envelope., and Bart Davidson [1] (BY MAIL) 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 Irvine, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postage cancellation date or postage meter date is more than one day after date of deposit for mailing this affidavit. (Cal Code Civ. Proc. § 1013(a); Fed. R. Civ. Proc. 5(a); Fed. R. Civ. Proc. 5(c).) [] (BY OVERNIGHT MAIL) I am personally and readily familiar with the business practice of Aegis Law Firm PC for collection and processing correspondence for overnight delivery, and I caused such document(s) described herein to be deposited for delivery to a facility regularly maintained Federal Express for overnight delivery. (Cal Code Civ. Proc. § 1013(c); Fed. R. Civ. Proc. 5(¢c).) 2X (BY ELECTRONIC TRANSMISSION) I caused said document(s) to be served via electronic transmission via Case Anywhere on the date below. (Cal. Code Civ. Proc. § 1010.6(6); Fed. R. Civ. Proc. 5(b)(2)(E); Fed. R. Civ. Proc. 5(b)(3).) [] (BY PERSONAL SERVICE) 1 delivered the foregoing document by hand delivery to the addressed named above. (Cal Code Civ. Proc. § 1011; Fed. R. Civ. Proc. 3(b)2)(A).) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct Executed on March 24, 2017, at Irvine, California. 7 Kathyan Alvarez CERTIFICATE OF SERVICE