Christian Villalobos vs. Transit Systems Unltd., Inc.

Opposition

Cal. Super. - 4th Dist.April 5, 2016

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SNYDER LAW, LLP Barry Clifford Snyder (SB# 62844) Christopher M. Cotter (SB# (SB# 273144) 5383 Hollister Avenue, Suite 240 Santa Barbara, California 93111 Telephone No.: 805.692.2800 Facsimile No.: 805.692.2801 Co ur t ou rt of Ca li fo mi a, By E m m a Ca st le D e p u t y Cl er k ou nt y of Or an ge 06 /2 2/ 20 17 at 03 :3 7: 00 PM le rk of th e Su pe ri or ( Su pe ri or ( C Cc E L E C T R O N I C A L L Y FI LE D Attorneys for Defendants TRANSIT SYSTEMS UNLTD., INC. And DANIEL ELLIOTT SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE CHRISTIAN VILLALOBOS, an individual, Case No. 30-2016-00844732-CU-PA-CJIC Plaintiff, Hon. Derek W. Hunt, Department C23 Vv. OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 3 TRANSIT SYSTEMS UNLTD., INC., a California corporation; DANIEL ELLIOT, an individual; and DOES 1 through 10, inclusive. Trial: June 26, 2017 Defendants. 1. INTRODUCTION While traffic collision reports in and of themselves are not admissible, the statements contained therein may be admissible on other grounds. For these reasons, plaintiff’s motion should be denied. 2: ANALYSIS While accident reports themselves may be excluded from evidence, witness statements contained in the police report can be admissible on other grounds. See, e.g., Sherrell v. Kelso (1981) 116 Cal.App.3d Supp. 22, 35. Assuming proper foundation, the statements contained in an accident report may be introduced as a past recollection recorded, as in the Sherrell case. Id.; 1 OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 3 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 see also Evid. Code §1237. They may be used to support the credibility of a witness. Evid. Code §1236. Or they may be used for impeachment if inconsistent with the trial testimony of a witness. Evid. Code §1235. The purpose of Vehicle Code section 20013 is to protect against the undue weight that a jury might give to an “official report” or “official document” like a traffic collision report. While earlier jurisprudence excluded statements contained in the report as well as the report itself, that legislative intent changed from the inception of the statute in 1935. The current legislative intent behind section 20013 is not to exclude the contents of the accident report, but merely the report itself. Sherrell, supra, 116 Cal.App.3d Supp. at 31. Plaintiff Villalobos argues that the contents of the police report should be excluded as hearsay, but objections based on the hearsay rule and the numerous exceptions to it need to be made in an ad hoc basis from within the context of trial. The Sherrell case, also cited by plaintiff, discussed and applied the past recollection recorded exception to affirm the admissibility of statements contained in a traffic collision report. Sherrell, supra, 116 Cal.App.3d Supp. at 31-32. It follows that other hearsay exceptions should apply to the same statements. Plaintiff relies on the opinions in Stickel and MacLean, decided in 1948 and 1957, to argue for the old rule excluding wholesale the report and documents contained therein. Sherrell was decided in 1981 and, if this may be characterized as the “new rule,” defendants could find nothing on record disturbing the Sherrell opinion or criticizing the new rule. In the present case, plaintiff Villalobos wants to exclude statements made by witnesses Michael Hernandez and Vic Hacopian. The statements are contained within the associated traffic collision report and may be admissible depending on their use at trial. For example, Mr. Hernandez gave deposition testimony that directly conflicts with his contemporaneous statements contained in the audio recording and traffic collision report: Deposition Testimony Recorded Statement Traffic Collision Report Statement Q. Can you describe for me the | Q. The motorcyclist was in W-1 told me V-1 was motorcycle’s rate of acceleration | front? approximately 5 car from the stop sign - I’m sorry, lengths in front of him in the traffic signal? A. Motorcycle was in front of the #1 lane traveling faster OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 3 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. That would be hard to determine. I could tell you that he was probably 2 vehicle lengths, maybe 2 '; vehicle lengths ahead of me - okay - at the point of impact. (Hernandez Depo. 18:23 - 19:4) me, probably five car lengths in front of me. than he was. Q. Did you see any brake lights? A. That I don’t recall. (Hernandez Depo. at 66:6-9.) Q. OK. You did see brake lights? A. 1did see brake lights. And then he also skidded. W-1 stated he saw V-1°s brake lights and smoke coming from the tires of V-1 moments before V-1 impacted bus. Q. At any point between the traffic signal at Katella and Noel at the time of the impact, did you observe anything that would indicate to you that the motorcyclist was distracted? A. The only thing I could say, being a motorcycle driver myself, he appeared that he was looking for an out. Q. What do you mean by that? A. Because he crossed over at some - I don’t remember when, but he crossed over to the left of where he was. Okay? So that kind of tell - tells me that he was looking for an out. There was no way he was going to go right because the bus was fully covering the - the entire lanes. To the left, you know, he might have been able to avoid the collision. (Hernandez Depo. at 29:21 - 30:10.) He locked it up but I mean, it’s like I told him. I go, I expect him to break a lot sooner. It was like he was distracted or something or he thought that the bus was gonna pull faster. You know at that point. W-1 told me D-1 appeared to be distracted and did not notice V-2 in the intersection until moments before impacting the rear of V-2. Q. Can you give me an estimate as to whether the bus was making its left-hand turn at a rapid rate, a casual, moderate rate, or a slow rate? [Objection made.] Q. Just based on your experience. A. It wasn’t - it definitely was not a fast turn - okay - as far as Q. Perfect. Um, as far, I'll talk to as well, um, as far as um, the bus is concerned, um, what, what were the movements of the bus that you saw? A. The movements of the bus, he was turning very slow. Q. How fast do you think he was coming, crossing these W-1 stated the bus was moving slow and approximated V-2’s speed at 5-10 miles per hour as it made a left turn onto Portal St. from Katella Ave. OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 3 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 his rate of speed. I would say it was just a normal rate of turn until he started to hit that dip point. (Hernandez Depo. at 44:11-21.] number 1, 2, 3 lanes at Katella? A. At 5-10 miles an hour. Q. 5-10 miles an hour. But you, but you did notice that the bus was slow - decreasing in miles per hour as he was crossing Katella? A. My guess is probably because of the approach. Q. Did the bus have its left turn signal on during its turn? A. Icouldn’t tell you that. (Hernandez Depo. at 55:23-25.) A. The movement of the bus, he was turning very slow. Q. OK. A. OK. He had his blinker on, I remember seeing that. W-1 said the bus had its left turn signal on indicating V-2 was attempting to make a left turn onto Portal St. Depending on the trial testimony offered by Mr. Hernandez and Mr. Hacopian, the statements may be used to refresh recollections, bolster credibility if consistent with prior statements, or to impeach the witnesses to the degree that the witnesses make inconsistent statements. The statements may, if admitted into evidence, be recounted by expert witnesses to explain the foundation for their opinions. Messrs. Hernandez and Hacopian should be present at to the pursuit of truth to exclude these statements from trial. 3s CONCLUSION trial to explain or defend any admissible hearsay statements. It is an error of law and antithetical As statements contained in the traffic collision report may be admissible under one of the many exceptions to the hearsay rule, plaintiff’s motion to exclude these statements should be denied. Dated: June 22, 2017 SNYD AW, LLP By: Bary fford Snyder / Christopher M. Cotter Attorneys for Defendants TRANSIT SYSTEMS UNLTD., INC. and DANIEL ELLIOT 4 OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 3 10 11 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 DECLARATION OF CHRISTOPHER M. COTTER I, Christopher M. Cotter, declare: 1. I am a partner at Snyder Law, LLP, counsel of record for defendants. I have personal knowledge of the facts contained in this declaration. If called upon to testify, I could and would testify competently as to the truth of the facts contained herein. 2. A true and correct copy of the Traffic Collision Report is hereby attached as Exhibit A. 3. A true and correct copy of the transcription of Michael Hernandez’s recorded statement is hereby attached as Exhibit B. 4. A true and correct copy of excerpts from Michael Hernandez’s deposition transcript are hereby attached as Exhibit C. I declare under penalty of perjury that the foregoing is true and correct. Executed this 9nd Day of June, 2017 in Santa Barbara, California. Chris{oplierM. Cotter 5 OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 3 EXHIBIT A - STATE OF CALIFORN@A TRAFFIC COLLISION REPORT CHP §55 CARS PAGE 1 {REV 11-06) OPI 065 pace | oor 7 SPECIAL CONDITIONS waaisen eae cry JUDICIAL DISTRICT LOCAL REPORT NUMBER i LOS ALAMITOS WEST JUSTICE CENTER 15-00674 arn raed STAR CoN TY REPORTING DISTRICT BEAY DAY OF WEEK TOW AWAY 8 ORANGE 3013 i FRIDAY £1 YES Od NO COLLISION OCCURRED ON: Mo DAY YEAR | TIME (2400) NCIC r OFFICER 1D. = [ KATELLA AVE, 07/10/2015 1541 3013 190 2 MILEPOST INFORMATION: GPS COORDINATES PHOTOGRAPHS BY: [J S LATITUDE LONGITUDE B.MALATESTA (TTY) SQ X | AT INTERSECTION WITH: STATE HWY REL or: PORTALST. [Je [x] wo PARTY | DRIVER'S LICENSE NUMBER STATE CLASS AIRBAG | SAFETYEQUIP. VER. YEAR | MAKE / MODEL / COLOR LICENSE NUMBER STATE 1 | A1795664 cA at P A 2010 |UD SPORTSTER WiH/BLK 20E9155 ca DRIVER] NAME(FIRSY, MIDDLE, LAST} [x] CHRISTIAN VILLALOBOS OWNER'S NAME SAME AS DRIVER PEOES. STREET ADDRESS FREEDOM ROAD FINANCIAL #334 MANZANAR AVE, OWNER'S ADDRESS SAME £5 DRIVER cracls] ET STATE 1260 P.C). BOX 18218 RENO XV 8951} PICO RIVERA CA 90660 DISPOSITION OF VEHICLE ON ORDERS OF: [x] OFFICER [ Joawer [1] OTHER 8icY. | gex HAIR EYES [HEIGHT WEIGHT BIRTHDATE race | MR. C'S TOWING - (562)394-9521 LST 40. DAY YEAR Mo BLK BRN | 5.09 25 03211972 H PRIOR MECH, DEFECTS NONE APP, | Jneren TO NARRATIVE OTHER | HOME PHONE BUSINESS PHONE VEHICLE IDENTIFICATION NUMBER: THNDILCI6IACI2R060 |) 1562)265-3342 (362)801-0077 VEHICLE IPE DESCRIBE VEHICLE DAMAGE SHADE I DAVAGED AREA INSURANCE CARRIER POLICY NUMBER unix NONE HINOR GEICO 4295816930 02 He X| mason = RoLLovER DIR OF TRAVEL ON STREET OR HIGHWAY SPEED LIKI x ai Ww KATELLA AVE. 40 xn Tora oe panty | DRIVER'S LICENSE NUMBER STATE CLASS AIRBAG | SAFETY EQUIP. VE YEAR | MAKE / MODEL 7 COLOR LICENSE NUMBER STATE 3 | nerzages Ca RB M G 2000 | MCI E4500 BLUAVII 48962101 CA €R| NAMEIFIRST, MIDDLE, LAST) [X]{ DANIEL CHARLES ELLIOT REE TE te hmven PEDES- STREET ADDRESS PACOIMA REVELOPMENT FCU 1800 E. IMPERIAL HWY OWNER'S ADDRESS. SAME AS DRIVER PARKED] CITY I STATE /21p 13168 VAN NUY'S BLVD. PACOIMA CA 91331 LOS ANGELES CA 90059 DISPOSITION OF VEHICLE ON ORDERS OF: | OFFICER [X]omves [Jorn By. | gE HAR EVES | HEIGHT WEIGHT o a enn RACE | DRIVEN FROM SCENE M BRN HZL | 6-01 230 07/11/1988 w PRIOR MECHANICAL DEFECTS [X]none app, [1 REFER TO NARRATIVE OTHER | HOME PHONE BUSINESS PHONE VEHICLE IDENTIFICATION NUMBER: TMETRMPATYP061133 1] (818)535-0667 VEHICLE TYPE DESCRIBE VEHICLE DAMAGE SHADE IN QagE0/ AREA WSURANCE CARRIER POLICY NUMBER uN NONE MINOR NEW YORK MARINE AU201400002532 0 | Ho he Ho OIR OF TRAVEL ON STREET OR HIGHWAY SPEED uMIT ch DoT ’ o a N PORTAL ST. 25 cALT TcPPsC Wemx PARTY | DRIVER'S LICENSE NUMBER STATE CLASS NRBAG | SAFETYEQUP. VEH. YEAR | MAKE / MODEL | CO OR LICENSE NURBER STATE 3 DRIVER | NAME(FIRST, MIDDLE, LAST) Ml OWNER'S NAME OJ SAME AS DRIVER POLS: STREET ADURESS OWNER'S ADDRESS [TJoane AS DAWVER PARKED] CITY (STATE /2iP DISPOSITION OF VEHICLE ON ORDERS OF: OFFICER DRIVER OTHER gicy Tsex HAIR EYES | HEIGHT WEIGHT srinoate Taxce LU Ll Lf PRIOR MECKANCIAL DEFECTS [none APP. { pesen 10 NARRATIVE OTHER | HOWE PHONE BUSINESS PHONE VEHICLE IDENTIFICATION NUMBER: VEWCLE TYPE DESCRIBE VEHICLE DAMAGE SHADE IN DAMAGED AREA INSURANCE CARRIER POLICY NUMBER UNK NONE MINOR | [woe [mason ROLLOVER DIR OF TRAVEY ON STREET OR HIGHWAY SPEED LIMIT a oot cat TcPmse memx PREPARER'S NAME DISPATCH NOTIFIED REVIEWER'S NAVE 7 DATE REVIEWED 3. OTTO 190 Me [To [Jw Er = 6 yr STATE OF CALIFORNIA TRAFFIC COLLISION CODING CHP 555 CARS PAGE2 (REV. 11-06) OPI 065 PAGE, OF DATE OF COLLISION (M0. DAY YEAR) TIME(2100) HCIC = OFFICER 1D, NUMBER VF02015 1341 3013 196 15-068674 OWNER OVHIER ADDRESS HOTIFIED PROPERTY, [ves [Jno DAMAGE | pESCRIPTION OF DAMAGE SEATING POSITION SAFETY EQUIPMENT INATTENTION CODES OCCUPANTS L - AIR BA Yi MIC BICYCLE - HELMET Ee BAG DEPLOYED a A CELL PHONE HANDHELD ‘A - HONE tN VEHICLE M - AIR BAG NOT DEPLOYED ORIVER PASSENGER B - CELL PHONE HANDSFREE 8. UNKNOWN H-OTHER yang NO € - ELECTRONIC EQUIPMENT LN CLAP BELT USED P - NOT REQUIRED WEXES VYES D- RADIO? CO 129 | ionmen 0 - LAP BELT NOT USED € . SMOKING 210.6 PASSEREERE E - SHOULDER HARNESS USED CHILO RESTRAINT EJECTED FROMVEHICLE | F + EATING 456 STA. WON REAR F - SHOULDER HARNESS NOT USED ON VEMICLE BSED me | Gacinfin G + LAP/SHOULDER HARNESS USED - . 8-RR.OCC TRK.ORVAN | 3" LA ant R- IN VEHICLE NOT USED + FULLY EIRCTED H- ANIMALS 9- POSITION UNKNOWN + LAPISHOULDER HARNESS NOT USED gy vENICLE USE UNKNOWN }- PERSONAL HYGIENE J - PASSIVE RESTRAINT USED 1. PARTIALLY EJECTED 7 0-OTHER T -IN VEHICLE IMPROPER USE NOW J - READING K - PASSIVE RESTRAINT NOT USED U - NONE IN VEHICLE 3 - UNKNOWN X. OTHER ITEMS MARKED BELOW FOLLOWED BY AN ASTERISK (') SHOULD BE EXPLAINED IN THE NARRATIVE. KATE LA Ave PRIMARY COL Sion J PACIOR TRAFFIC CONTROL DEVICES 11213 SPECIAL INFORMATION 11213 aus | | 4 VC SECTION VIOLATED: ove X|A CONTROLS FUNCTIONING A HAZARDOUS MATERIAL A STOPPED Azes(e) NO B CONTROLS HOT FUNCTIONING" B CELL PHONE HANDHELD IN USE x 8 PROCEEDING STRAIGHT 5 OTHER IMPROPER DRIVING C CONTROLS OBSCURED C CELL PRONE HANDSFREE IN USE T RAN OFF ROAD D NO COMTROLS PRESENT / FACTOR" x |x| |D CELL PHONE NOT IN USE © MAKING RIGHT TURN C OTHER THAN DRIVER’ TYPE OF COLLISION E SCHOOL BUS RELATED x! | E MAKING LEFT TURN D UNKNOWN’ A HEAD. ON F 75 FT MOTORTRUCK COMBO F MAKING U TURN B SIDE SWIPE G 32 FT TRAILER COMBO G BACKING € REAR END H H SLOWING / STOPPING WEATHER (MARK 1 TO 2 ITEMS) x | 0 BROADSIDE | PASSING OTHER VEHICLE xa CLEAR E HIT OBJECT 3 J CHANGING LANES B CLOUDY F OVERTURNED K K PARKING MANEUVER C RAINING G VEHICLE / PEDESTRIAN L L ENTERING TRAFFIC [0 snowing H OTHER": M WM OTHER UNSAFE TURNING € FOG / VISIBILITY FT. n N XING INTO OPPOSING LANE F OTHER: MOTOR VEHICLE INVOLVED WITH 0 0 PARKED G WIND A NON - COLLISION Pp P MERGING LIGHTING 8 PEDESTRIAN Q O TRAVELING WRONG WAY x |A DAYUGHT X | © OTHER MOTOR VEHICLE il2l3 OTHER ASSOCIATED FACTORS R OTHER": B DUSK - DAWN © MOTOR VEHICLE ON OTHER ROADWAY = {MARK 1 TO 2 ITEMS} € DARK . STREET LIGHTS E PARKED MOTOR VEHICLE A VC SICHON VIOLATED: eto [yes D DARK - NO STREET LIGHTS F TRAIN He E DARK - STREET LIGHTS NOT G BICYCLE B VC SLETION VIOL £100 ene YES FUNCTIONING" H ANIMAL: He SOBRIETY . DRUG ROADWAY SURFACE © VeiCiormeUTD, EAT He I 3 PREGA. Xx}A DRY | FIXED OBJECT: i) 8 WET of X| x A HAD NOT BEEN DRINKING C SNOWY - ICY ; OTHER OBJECT: E VISION OBSCUREMENT: B HEBD - UNDER INFLUENCE © SLIPPERY (MUDDY, OILY, ETC.) xX F INATTENTION': C HBD - NOT UNDER INFLUENCE® ROADWAY CONDITION(S) G STOP & GO TRAFFIC 0 HBD - IMPAIRMENT UNKNOWN* (MARK 1 10 21TEMS) PEDESTRIANS ACTIONS H ENTERING / LEAVING RAMP E UNDER DRUG INFLUENCE" A HOLES, DEEP RUT X | A NO PEDESTRIANS INVOLVED I PREVIOUS COLLISION F IMPAIRMENT - PHYSICAL" B LOOSE MATERIAL ON ROADWAY" 8 CROSSING IN CROSSWALK J UNFAMILIAR WITH ROAD G IMPAIRMENT NOT KNOWN C OBSTRUCTION ON ROADWAY® AT INTERSECTION K DEFECTIVE VEM, EQUIP.: CITED H NOT APPLICABLE 0 CONSTRUCTION - REPAIR ZONE C CROSSING IN CROSSWALK - NOT H YES | SLEEPY /FATIGUEQ E REDUCED ROADWAY WIDTH AY INTERSECTION no £ FLOODED" D CROSSING - NOT IN CROSSWALK L UNINVOLVED VEHICLE G OTHER": E IN ROAD - INCLUDES SHOULDER M OTHER": X |H NO UNUSUAL CONDITIONS F_ NOT IN ROAD X| |N NONE APPARENT G APPROACHING / LEAVING SCHOOL BUS O RUNAWAY VEHICLE SKETCH 4-PORYAL ST, MISCELLANEOUS @ ee - - --- pe awn - t INDICATE NORTH egy T_T TTT 2 - STATE OF CALIFORNIA INJURED / WITNESSES / PASSENGERS pace 308 7° CHP 555 CARS PAGE 3 {REV 11-06) QP} 065 DATE OF COLLISION (MO. DAY YEAR] | TIME(2400) NCIC § OFFICER 1.O. NUMBER a71072M8 154% 3013 190 15-00674 wiNess | eassencer | fo EXTENT OF INJURY('X' ONE) INJURED WAS ('X' ONE) PARTY | seat | aR | sarEry fon {RUMBER | vos, {Bac | EoUP. DNLY ONLY FATAL SEVERE OTHER VISIBLE COMPLAINT DRIVER | pass. PEO. BICYCLIST OTNER BIURY INJURY INJURY CF PAN O° 1 0 «vO O O | O01 a 10|0 | fe |a to NAME 70.0.8. / ADDRESS TELEPHONE CHRISTIAN VILLALOBOS (0321/1972) 8334 MANZANAR AVE. PICO RIVERA CA 90660 {562)965-3442 {INJURED ONLY) TRANSPORTED BY: TAKEN TO: CARE AMBULANCE #239 1.ONG BEACH MEMORIAL HOSPITAL DESCRIBE INJURIES: I ATTERED RIGHT ELBOW, 5-7 BROKEN RIBS. FRACTURED STERNUM, FRACTURED RIGHT EVE SOCKET. DEEP CUT TO RIGHT KNEE VICTIM OF VICLENT CRIME NOTIFIED [oF hla] 6 [oemoeanl IT] NAME / 0.0.8.7 ADDRESS TELEPHONE MICHAEL JAMES HERNANDEZ (01/09/1955) 3311 KENILWORTI DR, ROSSMOOR CA 90720 (562)430-6333 (INJURED ONLY} TRANSPORTED BY: TAKEN TO: DESCRIBE INJURIES: [1 VICTIM OF VIOLENT CRIME NOTIFIED F: oll olol olololool olo [| NAME /D,0.8. | ADDRESS TELEPHONE VIC HACOPIAN (13/25/1961) (529 N. NAOMI ST. BURBANK CA 91505 (R18)480.I886 {INJURED ONLY) TRANSPORTED BY: TAKEN TO: DESCRIBE INJURIES: [] victim oF vioLent crime NOTIFIED 0° | Oo | olol o | ololool olo NAME / D.0.B./ ADDRESS TELEPHONE {INJURED ONLY) TRANSPORTED BY: TAKEN YO: DESCRIBE INJURIES: VICTIM OF VIOLENT CRIME NOTIFIED ol | lojololofooololal TTT] TELEPHONE im) NAME / D.0.8./ ADDRESS (INJURED ONLY} TRANSPORTED BY: TAKEN TO: DESCRIBE INJURIES: VICTIM OF VIOLENT CRIME NOTIFIED Oo lol | jojo ololooololal TTT 1 NAME! D.0.B./ ADDRESS TELEPHONE {INJURED ONLY) TRANSPORTED BY: TAKEN TO: DESCRIBE INJURIES: 1 VICTIM OF VIOLENT CRIME NOTIFIED PREPARER'S NAME 1.0. NUMBER MO, DAY YEAR | REVIEWER'S NAME = MO. DAY .YEAR J.OTTO 190 07/10/2015 Ep 2 7/4 5 D O N O O C I C N U f L I N ) - - _ - IN w = - p p wn B u s | J , O O o 9 N N 9 L B - ND B D Ey J D T ~N A N W n B O B I oe 3 W N - O O L a U2 J ©. J w u +S 3 G. 3 ©. 3 GO . J ws O 0 0 ne 2 S o b - - - 0 STATE OF CALIFORNIA NARRATIVE/SUPPLEMENTAL i PAGE 4 OF 7 RRR ATW E/SUPPLEMENTAL NCIC NUMBER OFFICER 1.0. CASE NUMBER 07-10-15 1541 3013 190 15-00674 EACTS NOTIFICATION: On Friday, July 10, 2015 at approximately 1541 hours, Officer Malatesta (179) and | (Otto/ 180), were dispatched to the area of Katella Ave. and Portal St. regarding an injury traffic collision. Officer Malatesta and | responded from the Los Alamitos Police Department and arrived at approximately 1543 hours. All times, speeds, and measurements are approximate. Measurements were obtained by the use of a rol-a-tape device and visual estimations. SCENE: Katella Ave. east of Portal St. is a six lane east/west roadway of asphalt and concrete construction. There are three westbound lanes and three eastbound lanes of travel. The westbound and eastbound lanes are separated by raised medians. Eastbound Katella Ave. has a designated left turn lane for traffic to turn left (northbound) onto Portal St. at this intersection. The posted speed limit for westbound Katella Ave. east of Portal St. is 40 mph. PARTIES: Driver #1 (Villalobos): was located in the intersection of Katella Ave. and Portal St. D-1 was lying on his back with multiple people holding him down because he was attempting to get up. A green motorcycle helmet was located approximately 3 feet east of D-1.There was a stream of blood on the ground presumably belonging to D-1 located 2 feet east of D-1. Although D-1 was not lucid at the time of my arrival, officers on scene were able to procure his identification and positively identify D-1 by his valid California Driver's license (A1795664). The Orange County Fire Authority responded to the scene and provided medical aid to D-1. D-1 was then transported by Care Ambulance #239 to Long Beach Memorial Hospital. Vehicle #1 (Harley Davidson): was located in the intersection of Katella Ave. and Portal St. V-1 was lying on its right side approximately 10 feet south of D-1. Major damage was sustained to the front end of V-1. V-1 was not operational and was eventually removed from the scene by Mr. C's Towing. Driver #2 (Elliot): was located on the northeast corner of Katella Ave. and Portal St. D-2 was identified by his California Commercial Driver's License (D6173884). D-2 was recognized as the driver of V-2 at the time of the collision by his statements. D-2 had no visible injuries or complaint of pain. PREPARED BY 1.0. NUMBER DATEMME ees NAME DATE J.Otto 190 07-10-15 / 1541 SE, fr fis STATE OF CALIFORNIA NARRATIVE/SUPPLEMENTAL __ ir LAGE & OF DATE OF INCIDENT M R OFFICER LD. 07-10-15 1541 3013 190 15-0067. a O O W I N E L R ) N - C 0 R e A a L h i t l N o o I R R R E U N E E E R S I s c E a S Vehicle #2 (BUS): was found on its wheels on Portal St. approximately 300 feet north of Katella Ave. facing north. V-2 sustained moderate damage to the rear passenger side quarter panel area. PHYSICAL EVIDENCE: Injuries sustained by D-1 Damage sustained by the involved vehicles. Tire friction marks deposited by V-1 Photographs taken at the collision scene by Officer Malatesta (179). STATEMENTS: Driver #1 (Villalobos): Due to the injuries D-1 sustained in the collision, he was unable to provide me a statement at the scene. On Saturday, July 11, 2015 at approximately 0816 hours, | contacted D-1 by telephone while he was in his room at Long Beach Memorial Hospital. D-1 told me he did not remember much of what happened in regards to the collision. D-1 stated he did remember he was travelling on Katella Ave. toward the 605 freeway. D-1 stated, “Next thing | know is I'm in the ambulance”. D-1 did not know what he struck with V-1. D-1 did not know what lane he was travelling in prior to the vehicle collision or how fast he was travelling. D-1 stated he was wearing a helmet, a jacket and gloves when he was riding V-1 prior to the collision. D-1 stated he sustained multiple injuries in the collision. D-1 sustained a shattered right elbow, 5-7 broken ribs, a fractured sternum, a fractured right eye socket, and a deep cut to his right knee. Driver #2 (Elliot): D-2 stated he was travelling eastbound on Katella Ave. and entered the left turn lane at the intersection of Katella Ave. and Portal St. D-2 brought V-2 to a complete stop and engaged the left turn signal to indicate to oncoming traffic that he would be making a left turn. D-2 stated as he was stopped in the left turn lane, he observed westbound traffic stopped at the traffic signal (Noel St. and Katella Ave.) east of his location. D-2 stated as he proceeded to make a left turn onto northbound Portal St., there were no vehicles travelling westbound on Katella Ave. As D-2 was proceeding with the left turn and was in the middle of the intersection of Katella Ave. and Portal St., he heard the sound of V-1's engine revving. D-2 tured his head to the right to observe westbound traffic on Katella Ave. D-2 stated he saw V-1 heading westbound in the #1 lane on Katella Ave. travelling at a high rate of speed. D-2 told me V-1 was in front of westbound traffic on Katella Ave. D-2 also observed that D-1 was looking left (south) and appeared not to notice PREPARED BY ID.NUMBER DATE/MME REVIEWERS NAME TE J.Otto 190 07-10-15 / 1541 TZ 7 yn Pa O O O ~J ON A B N ) STATE OF CALIFORNIA TIVE! PL PAGE & OF VE SUPPLEMENTAL eres “CASE NUMBER Z 07-10-15 1541 3013 180 15-00674 the bus as he was entering the intersection of Katella Ave. and Portal St. D-2 stated he pressed the accelerator of his bus to clear the intersection before V-1 entered the intersection of Katella Ave. and Portal St. D-2 stated moments after pressing the accelerator he heard and felt the collision. After hearing and feeling the collision, D-2 stated he drove the bus north on Portal St. and stopped approximately 250 feet north of Katella Ave. D-2 parked V-2 and returned to Katella Ave. to check on the welfare of the D-1. Witness #1 (Hernandez): Stated he was travelling westbound on Katella Ave. in the #1 lane at approximately 35 miles per hour. W-1 told me V-1 was approximately 5 car lengths in front of him in the #1 lane traveling faster than he was. W-1 stated as he saw V-2 turn left in the intersection of Katella Ave. and Portal St. and applied his brakes to allow V-2 to clear the intersection. W-1 said he had a clear view of D-1 and observed D-1 did not apply his brakes until moments before impacting the rear of V-2. W-1 stated he saw V-1's brake lights and smoke coming from the tires of V-1 moments before V-1 impacted the bus. W-1 told me D-1 appeared to be distracted and did not notice V-2 in the intersection until moments before impacting the rear of V-2, W-1 said the bus had its left tum signal on indicating V-2 was attempting to make a left turn onto Portal St. W-1 stated the bus was moving slow and approximated V-2's speed at 5-10 miles per hour as it made a left turn onto Portal St. from Katella Ave. Witness #2 (Hacopian): Was contacted by me at the scene but was unable to provide me a statement at that time. I obtained W-2's contact information at the scene and told him | would be contacting him at a later date to obtain his statement. | contacted W-2 by telephone on 07-17-15. In our conversation, he stated he was travelling westbound on Katella Ave. in the #2 lane on 07-10-15. W-2 told me he was stopped at the red light on Noel St. and Katella Ave. facing west. W-2 stated he saw V-1 facing west at the red light in front of a Cadillac Escalade in the #1 lane. When the light phased green, he proceeded westbound on Katella Ave. W-2 stated he saw V-1 drive ahead of the Cadillac Escalade and was approximately 4 car lengths ahead of the Cadillac Escalade. W-2 told me he saw V-2 make a left turn onto Portal St. As V-2 was making the left turn, W-2 stated he (W-2) started to slow down along with the Cadillac Escalade that was next to him in the #1 lane to allow V-2 to clear the intersection. As W-2 and the Cadillac Escalade were slowing down, he saw V-1 proceed westbound on Katella Ave. at approximately 45 mph. W-2 explained he thought V-1 was going to stop but it did not. W-2 stated he saw brake lights and white smoke come from V-1's tire moments prior to impact. Immediately after seeing the white smoke and the brake light, W-2 said V-1 struck the bus. W-2 stated D-1 was possibly “looking somewhere else” when he (D-1) was travelling westbound on Katella Ave. and when D-1 did see the bus in the intersection, “it was too late." PREPARED 8Y 1.0. NUMBER DATE/MME REVIEWE] E DATE J.Otto 190 07-10-15 / 1541 ey 4s STATE OF CALIFORNIA NARRATIVE/SUPPLEMENTAL PAGE 7 OF7 TNCIGENT NCIC NUMBER FFICER 10. SE NUMBER 07-10-15 1541 3013 180 15-00674 1 OPINIONS AND CONCLUSIONS 2 3 Summary: 4 5 D-2 was travelling eastbound on Katella Ave. and turned into the left turn pocket at Katella 6 Ave. and Portal St. As D-2 was in the left turn pocket, he observed westbound Katella Ave. 7 traffic stopped at a traffic signal several hundred feet away (Katella Ave. / Noel St.). After 8 D-2 came to a complete stop and observed there was no westbound traffic close enough to 9 constitute a traffic hazard, he proceeded to make a left turn onto northbound Portal St. 10 ! 11 As a result of speed and inattention, D-1 did not see V-2 in front of him and was unable to 12 stop V-1. V-1 struck the right rear quarter panel of V-2 in the intersection of Katella Ave. 13 and Portal St. 14 15 It should be noted for the purposes of this report that two witness accounts indicated V-1 16 was traveling faster than other traffic in the area and D-1appeared distracted and unaware 17 of V-2 in the roadway ahead of him. 18 19 Area of Impact: 20 21 AOI #1: 37° 6” S of the NCP of Katella Ave. and 5' W of the ECP of Portal St. 22 23 Cause: 24 25 Based on the physical evidence and the statements of the involved parties and witnesses, 26 | formed the opinion D-1 was the cause of the accident by violating CVC 21803(b) Yielding 27 to right-of-way by driver making left turn or u-turn, which reads: 28 29 A driver having yielded as prescribed in subdivision (a), and having given a signal when and 30 as required by this code, may tum left or complete a U-turn, and the drivers of vehicles 31 approaching the intersection or the entrance to the property or alley from the opposite 32 direction shall yield the right-of-way to the tuming vehicle. 33 34 | also feel an associated factor to the vehicle collision is D-1's inattention to the 35 roadway while operating V-1. 36 i 37 38 Recommendations: 39 40 No recommendations PREPARED BY 1.0. NUMBER DATE/TIME REVI 4 E DATE J.Otto 190 07-10-15 / 1541 2. 2s 2/1 fs LOS ALAMITOS POLICE DEPARTMENT 3201 KATELLA AVE., LOS ALAMITOS, CA 80720 (562) 431-2555 EXT. 402 BUSINESS (562) 431-5498 FAX (562) 594-7232 24 HOUR POLICE SERVICES 15-00674 PROPERTY REPORT N/A TYPE OF REPORT / CHARGES ARRESTED [Yes [(XNo AGE DATE 1 1 | Jul 17,2015 Traffic Collision / Injury LABANALYSIS [Yes [No D-DAMAGED E-EVIDENCE F-FOUND L-LOST R-RECOVERED S-STOLEN SK-SAFEKEEPING X- DESTRUCTION *% MISC. DESCRIPTION (LE. MODEL, COLOR, SIZE, 8 B E BRAND CALIBER, REVOLVER, INSCRIPTION, WEIGHT, ETC) | SERIALNUMBER | VALUE 1 1 CD Disc Containing (46) Photographs N/A N/A O i g j o j g o a j o j o j o j o j o i o j o | o l o + BIKES - Serial #, Make, Speed, Color » GUNS - Serial #, Make, Caliber, "Type, *Categoty TYP CATEGORY A- Canon O- Mortar A- Automatic G- GasorAlr M- Machine S- Single Shot B- Submachine Gun P+ Pistol B- Bolt Action H- Flintlock N- Launcher T- Reciolless C- RifiefShotgun Combo} R- Rifie C- Carbine i- SembAutomatic® O- Over/Under | U- Percussion G- Grenade §- Shotgun D- Deringer J- Jet-propelied Gun P- PumpAction | W- Three Barrels K- Rocket T- Teargas © E- Double-Barel K- Blank Pistol Q- Antique X- 4 ormore M- Maching Gun V- Silencer F- Flare Gun L- Lever Action R- Revolver Barrels The most common Mistake In determining he category of 8 gun is k indicats Automatic when $0 Gun ks actually 2 SemiActomatic 5 ina A [¢] Locker [] Other 10 KS) {J tocker [7] Other 8) [J tocker [] Other [loro 4350 8a i 7 BATE Otto #190/ B. Malatesta #179 117,205 AZ, , 2 fom fm Transcription of Interview of Michael Hernandez at Scene of Accident Taken from MPC File 150710 007 Note: Officer 1 in all transcripts of interviews taken at scene of accident is same man. Interview begins at 1:58. Officer 1: So basically I kinda just want to ask, uh, what happened, from, from the beginning. WhatYou were traveling west on Katella? Obviously in the number one lane. And then just kinda go from there. Witness: He was in front of me. 2:10 Officer 1: The motorcyclist was in front? Witness: Motorcycle was in front of me, probably five car lengths in front of me. Officer 1: Approximately how fast were you going and how fast do you think the motorcyclist was going? Witness: Probably doing maybe 35. Officer 1: 34. And the motorcyclist? Witness: He was probably going a little faster than that - Officer 1: OK. Witness: Because I ride a motorcycle too - Officer 1: OK. Witness: And when I saw the bus turn- Officer 1: Mmhmm. Witness: I started to hit my brakes. So did everybody else. Officer 1: OK. Witness: OK. Officer 1: OK. Page 1 of 11 2:30 Witness: He, for some reason, didn’t hit his brakes. Officer 1: I was gonna ask you- Witness: Until the last second. Officer 1: OK. You did see brake lights? Witness: I did see brake lights. And then he also skidded. Officer 1: OK. Witness: Because there was smoke that went up in the air. Officer 1: Uh huh. Witness: Just before he hit. Officer 1: OK. Witness: And when he hit, he hit the back quarter basically of the bus. 2:47 Officer 1: OK. Witness: His bike, he went flying into the side of the - Officer 1: The bus. Witness: The bus. Officer 1: OK. Witness: And then off to the side. Officer 1: OK. Witness: But he did not hit his brakes until like the last second. Officer 1: OK. Witness: I was kinda wondering what he was doing, like was he waiting for the bus to move through, so he could go by? Page 2 of 11 Officer 1: Mmhmm. 3:00 Witness: Or was he distracted by something else on that last second he saw it. Officer 1: OK. And he was. Was there any cars between you and the motorcyclist? Witness: No. There was only one car off to the right side. Officer 1: Off to the right side of you. Witness: Yea. Officer 1: And you, you said he was approximately five car lengths- Witness: Five car lengths in front of me. Officer 1: In front of you. 3:15 Witness: Yep. Officer 1: Uh, traveling approximately 35-40 miles. Witness: I was 35. He was probably a little bit more. Officer 1: OK. Witness: Because we all came off the signal. Officer 1: OK. Witness: At the same time. Officer 1: Perfect. Um, as far, I'll talk to as well, um, as far as um, the bus is concerned, um, what, what were the movements of the bus that you saw? . 3:34 Witness: The movements of the bus, he was turning very slow. Officer 1: OK. Page 3 of 11 Witness: OK. He had his blinker on. I remember seeing that, Officer 1: OK. Witness: You know, and actually when he got to this part is when he hit his brakes, ok. The bus. Officer 1: The bus stopped. 3:45 Witness: The bus started, it didn’t stop, he was rolling but it was like he was slowing up. Officer 1: How fast do you think he was coming, crossing these number 1, 2, 3 lanes at Katella? Witness: At 5-10 miles an hour. Officer 1: 5-10 miles an hour. But you, but you did notice that the bus was slow- decreasing in miles per hour as he was crossing Katella? 4:02 Witness: My guess is probably because of the approach. Officer 1: Uh, with the dip? Witness: Yea. Officer 1: OK. [inaudible] Um. At which time, the bus, did the bus, was the bus still in movement when the motorcycle collided with it? 4:18 Witness: Yes, it was. Officer 1: OK. At approximately 5-10 miles per hour. OK. And so the motorcycle hit the, the rear, rear corridor of the bus, as did the bike. And then the driver went to the left or to the right? 4:33 Witness: Driver went to the right. Officer 1: Into the right? After, after he made contact with the bus. OK. ~ Witness: The bike literally, when it hit, the back end came up like this. Page 4 of 11 Officer 1: OK. OK. And you said there were no other additional cars but, except for one other additional car? Witness: On the right side. Officer 1: OK. Do you know what kind of car that was? Witness: I think it was a pickup truck. I don’t remember exactly but I think I remember - Officer 1: OK. Because I did talk to a gentleman driving a white Chevy Silverado. He said he witnessed it too and he saw you and said that may or may not be the person, uh, that you're referring to. Witness: Couldn’t tell you what color it was but I know it was a pickup truck. 5:00 Officer 1: OK. After contact was made, um, traffic stopped. Witness: Traffic stopped. I jumped out. Somebody else was calling 9-1-1. Officer 1: OK. Witness: Try to keep him down. He was just really - Officer 1: Trying to move, trying to - 5:15 Witness: I couldn’t believe how much he was trying to move. He’s kind of delirious, yea, trying to get up. He was on his belly. He was completely on his belly. And then he was out, out for like, maybe the first 15-20 seconds. Then he started- Officer 1: [Inaudible] Witness: Then we tried to keep him still but he wouldn't stay still. Got up to his knees and everything else. He was real delirious at that point. 5:36 Inaudible background voices and/or emergency-related noise. Officer 1: Mmhmm. Witness: Really expected him to stop. The motorcycle. Page 5of 11 Officer 1: Mm yea. It was just - Witness: Really did. You know, honestly, like I said, I ride motorcycles. And when you're riding a motorcycle, you've got to watch everything at that point. And I really expect him to look for a way out - 6:06 Officer 1: Yes. Witness: Or stop or something, you know, and he didn’t until the last minute. Officer 1: ‘Til the very last minute. How many seconds, do you think, by the time you saw the brakes to make contact, did uh, was he on the brakes? Less than a second or something like that? Touched the brakes [inaudible] 6:20 Witness: I mean, it was like he hit the brakes and then boom. Officer 1: OK. Witness: I think you could probably see part of the skid marks on the right - Officer 1: Uh huh. Witness: Right there. 6:30 Officer 1: OK. Witness: [I think-“I’m pointing.”] Officer 1: Was he making any erratic movements while traveling - Witness: No. Officer 1: Westbound on Katella? Witness: No. Officer 1: Straight out in front of you, five car lengths in front of you. Witness: No. Page 6 of 11 Officer 1: OK. 6:45 Officer 2: Your car right there? Witness: Yep. Officer 1: He’s uh, he’s the witness, so-all his information is just statements and um- Officer 2: Good enough. Whatever he [inaudible], make sure to write it down. 7:00 Officer 1: OK. Is there anything else you'd like to add? You’ve been pretty thorough thus far, so seems like - Officer 2: Recount what he just told me. Make sure that everythings still correct. Officer 1: Traveling west on Katella in the number 1 lane. Motorcyclist is approximately 5 car lengths ahead of you. You were traveling 35 miles an hour. You approximate- Officer 2: What lane was the motorcycle in? Officer 1: The number 1 lane as well. Officer 2: [inaudible] 7:20 Officer 1: You approximate the motorcyclist’s speed at about 40 miles an hour. A little bit faster- Witness: A little bit faster than that, I suppose. Officer 1: As you approach this intersection, you see the bus turning, uh, at which time it starts to slow down, possibly your thought of the approach, ‘cause of the dip. Um, motorcyclist collides with the right rear corner panel of the bus and falls to the right. Bus drive continue down, north on Portal. Says he’s out for about 10-15 seconds. Then he starts making movements. No erratic behavior observed prior to the contact as um on part of the motorcyclist’s - 7:58 Unknown voice: Can I interrupt you guys for a second? Officer 1: Yea absolutely. Page 70f 11 Unknown voice: Can you point out to me where the impact happened? Witness: The impact happened just about, I’d say right on the letters. Unknown voice: OK. Which letters? Witness: The letters that, see the, see the letters? The two sets. Yea, the blood stain’s where he landed, ok? The impact -- 8:15 Unknown voice: Where they going from there? Witness: The impact is, I'm gonna say, 1:00 to there, just right at, I think it’s a P. Yea, just right at the P. Unknown voice: Oh yea, where that piece of debris is basically. Officer 1: All right, cool, thank you. Witness: There’s also skin marks. See on the white? Officer 1: OK. 8:30 Unknown voice: Oh yea, definitely. So he locked it up back here basically. 8:34 Witness: He locked it up but I mean, it’s like I told him. I go, I expect him to brake a lot sooner. It was like he was distracted or something or he thought that that bus was gonna pull faster. You know at that point. 8:47 Officer 2: So, finish your recount of the situation and you’ll move on. Then you're gonna be free. Officer 1: And so uh, contact was made. You uh, stopped. You stopped prior to the intersection. Unknown voice 2: [inaudible] Unknown voice 3: Want me to? Unknown voice 2: Please. Page 8 of 11 Unknown voice 3: [inaudible] 9:00 Officer 1: You, um, uh, made contact with him. Started moving. Erratic. Someone, someone was already, uh talking, on the phone with 9-1-1 or dispatch. And then uh, you saw us - Witness: There were like 4 of us that tried to keep him down. Officer 2: That sounds about right, right? Officer 1: OK. 9:15 Officer 2: Basically you guys were trying to hold him down. Trying to keep from hurting himself. Basically he was face down, though? Witness: He was face down. He had uh, his goggles on. His goggles were full of blood. But he was worried about his eye. You know when he finally did come around. 9:30 Officer 1: OK. Officer 2: And he came to and flipped over. Witness: Yea, actually he went to his knees first and then stood on or sat on his knees for a while and then we got him to flip over. Officer 2: OK. 9:45 Officer 1: OK, right after he awoke after the 10-15 seconds, of still not moving at all, he tried to get on his knees and then you guys held him down. Officer 2: Like on his knees like this? Witness: He was on both, he was on both knees. Officer 2: Like with his full knees? Or - 9:55 Page 9 of 11 Witness: Na, at first he was on his hands and knees. OK. Just like doggy style. And then what he did after that, he came to his knees where his hands were up like this. Straight to his [inaudible]. Officer 2: OK. Witness: He was able to balance himself which was real surprising. 10:08 Officer 1: He didn’t have a helmet on? Witness: He did have a helmet on. He took his helmet off. Officer 1: Yea, OK. That’s what I was gonna ask you later. He took it off - Witness: He took it off. 10:15 Officer 1: Prior to you guys holding him down? Or with - Witness: Na, he was, he was on, he was on, on his belly - Officer 1: OK. Witness: And he turned his head sideways and started to remove his strap. Officer 1: OK. | Witness: He didn’t pull the hel-, the helmet off until he was up on his knees. 10:26 Officer 1: OK. Perfect. OK. Well, thank you, sir. Witness: OK. Officer 1: This is all your information. I have all your information, contact. Witness: Give me a call any time if you guys need [inaudible]. 10:35 Officer 1: I'll give you my card and uh - Witness: Na, na, na. [inaudible]. I decided to take the day off early. I live in Rossmoor. Page 10 of 11