Laurence Harper vs. Raul Najera Lopez

Motion in Limine

Cal. Super. - 4th Dist.April 13, 2016

A I T K E N 4+ A I T K E N 4+ C O H N 3 M A C A R T H U R P L A C E , SU IT E 80 0 S S OO 0 NN O N n n B R A W N = - e d e d e d e d aA Ln BA WLW = 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 92 70 7 DO NO No NO NO No NO - -_ - (o ) Wn E N Ww NN ) - S Oo ee ] ~ No ~ 28 £2 PRINTED ON RECYCLED PAPER ELECTRONICALLY FILED hn (SBN 273496) Superior Court of California, County of Orange i Rp HERI, BURIED 06M15/2018 at 01:09:00 PM SANTA ANA, CA 92707-2555 Clerk of the Superior Court (714) 434-1424/(714) 434-3600 FAX By Jorge A Gomez, Deputy Clerk Attorneys for Plaintiffs LAURENCE HARPER and MICHAELYN MILOSEVICH-HARPER SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER AND RELATED CROSS-ACTIONS. Complaint Filed: 4/13/16 LAURENCE HARPER, an individual; ) CASE NO: 30-2016-00846007 MICHAELYN MILOSEVICH-HARPER, an ) [Hon. Theodore Howard, Dept. C18] individual; oo ) Plaidy, PLAINTIFFS’ MOTION IN LIMINE Vs. ) NO. 2 RE PAST TICKET HISTORY ) AND SUSPENSIONS; RAUL NAJERA LOPEZ, an individual; ) DECLARATION OF ATTICUS N. CAPISTRANO FORD, a business organization, ) WEGMAN; [PROPOSED] ORDER form unknown; DOES 1 to 10, inclusive; Defndsiits. ) Trial Date: May 7,2018 ) Time: 9:00 a.m. Dept.: C18 ) ) ) TO THE HONORABLE COURT, ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that Plaintiffs will move the Court for issuance of the following order relating to Motion in Limine No. 2: An order precluding Defendants’ counsel from introducing evidence of Plaintiff’s past ticket history or license suspension; 1 PLAINTIFFS’ MOTION IN LIMINE NO. 2 RE PAST TICKET HISTORY AND SUSPENSIONS; DECLARATION OF ATTICUS N. WEGMAN; [PROPOSED] ORDER A I T K E N 4 A I T K E N 4 C O H N 3 M A C A R T H U R P L A C E , SU IT E 80 0 S O © NN O N nv B 1 11 12 13 14 15 16 17 18 19 20 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A AN A, CA 92 70 7 21 22 23 24 25 26 27 28 £2 PRINTED ON RECYCLED PAPER An order requiring the attorneys for all parties to instruct their witnesses of the court's exclusionary order on this motion; and An order requiring the attorney for Defendants, prior to making any references, comments, or assertions concerning such matters, to approach the bench and make an offer of proof to the court so that the court, prior to any presentation of the above-referenced evidence to the jury, can make a preliminary determination of the relevancy and admissibility thereof. This motion is based on this Notice, the accompanying Memorandum of Points and Authorities, the complete file maintained by the Court in this action, and all such other oral and documentary evidence as may be presented at the time of hearing on this motion. Dated: May 7, 2018 AITKEN4 AITKEN 4+ COHN (i. Ch By: ( A ’ Xo ATTICUS N. WEGMAN, ESQ. Attorneys for Plaint] 2 PLAINTIFFS’ MOTION IN LIMINE NO. 2 RE PAST TICKET HISTORY AND SUSPENSIONS; DECLARATION OF ATTICUS N. WEGMAN; [PROPOSED] ORDER A I T K E N 4+ A I T K E N 4 C O H N 3 M A C A R T H U R P L A C E , SU IT E 80 0 S S OO 0 NN O Y n n BA W N p p d e d p d p d p d p d A A Wn RA W N = 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 92 70 7 DO No No No No NS ) ND -_ = - a wi ~~ wo No -_ ( = Oo 0 No J 28 £2 PRINTED ON RECYCLED PAPER MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION On December 7, 2015, around 2:00 p.m., Plaintiff Mr. Laurence Harper was traveling alone in his four-door sedan on his way to his house on Camino Capistrano Boulevard in San Juan Capistrano, Ca. There are four lanes of travel on Camino Capistrano Boulevard, two Northbound lanes and two Southbound lanes, separated by an open median. Plaintiff Mr. Harper was traveling Southbound in the slow lane. Without any warning or ability to take evasive action, Defendant Raul Lopez, working for his employer Defendant Tuttle Click Capistrano Ford, Inc., entered into Plaintiff Mr. Harpers lane of travel as he negotiated a left turn onto Camino Capistrano Boulevard from the Tuttle Click Capistrano Ford, Inc. car dealership. Both vehicles collided, and Plaintiff Mr. Harper sustained major injuries to his neck (requiring fusion surgery), back (requiring fusion surgery), left shoulder (requiring surgery), right shoulder (requiring surgery), and minor injuries to his right wrist and right foot. Defendant Mr. Lopez and Defendant Tuttle Click Capistrano Ford, admit they were partially negligent, but dispute the nature and extent of Plaintiffs” harms and losses. 3 PLAINTIFFS’ MOTION IN LIMINE NO. 2 RE PAST TICKET HISTORY AND SUSPENSIONS; DECLARATION OF ATTICUS N. WEGMAN; [PROPOSED] ORDER A I T K E N 4 A I T K E N 4+ C O H N 3 M A C A R T H U R P L A C E , S U I T E 80 0 WLW S S OO 0 9 Wn 1 11 12 13 14 15 16 17 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A AN A, CA 92 70 7 18 19 20 2] 22 23 24 25 26 27 28 £2 PRINTED ON RECYCLED PAPER Defendants Mr. Lopez and Tuttle Click Capistrano Ford and Plaintiffs Mr. Harper and Mrs. Harper (who maintains a claim for loss of consortium) allege that Defendant Cervando Salgado, working for his employer Defendant URS Midwest, Inc., is at least partly responsible for parking its car hauler and trailer with cars loaded on an adjacent red curb, thus impeding the ability for motorists to see each other. Defendant Mr. Salgado and Defendant URS Midwest, Inc., admit they were parked illegally, but do not admit they were negligent or that Mr. Harper and Mrs. Harper were harmed. II. PAST TICKET HISTORY AND LICENSE SUSPENSION IS IRRELEVANT, PREJUDICIAL AND CONJECTURE During Plaintiff Laurence Harper’s deposition, he testified, in jest, that when he was a minor, nearly 50 years ago, then Governor Ronald Reagan, personally suspended his license. Mr. Harper further noted, in jest, that he had 17 tickets in one year. In providing this testimony Mr. Harper admitted that he was exaggerating at which point Defense counsel asked that he quit exaggerating to which Mr. Harper agree and apologized. Attached as Exhibit A, please find pages 14-15 of Mr. Harper's deposition testimony. Evidence of prudence of driver in the past is inadmissible to show lack of negligence in present action. Towle v. Pacific Imp. Co. (1893) 98 Cal. 342. Evidence of prior traffic offense not normally permitted in civil action against driver for negligent operation of a vehicle. Shmatovich v. New Sonoma Creamery (1960) 187 Cal.App.2d 342. Further, evidence of a person’s trait of a person’s character with respect to care or skill is inadmissible to prove the quality of his conduct on a specified occasion. Stafford v. United Farm Workers (1983) 33 Cal.3d 319. III. EVIDENCE OF PAST TICKET HISTORY AND LICENSE SUSPENSION IS IRRELEVANT AND WILL CAUSE UNDUE PREJUDICE TO PLAINTIFF Evidence Code section 350 states: No evidence is admissible except relevant evidence. Relevant evidence means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. Evidence Code section 210. The trial court has 4 PLAINTIFFS’ MOTION IN LIMINE NO. 2 RE PAST TICKET HISTORY AND SUSPENSIONS; DECLARATION OF ATTICUS N. WEGMAN; [PROPOSED] ORDER A I T K E N 4 A I T K E N 4 C O H N 3 M A C A R T H U R P L A C E , SU IT E 80 0 No ~~ Ww S S OO 0 NN O N Wn 1 11 12 13 14 15 16 17 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A AN A, CA 92 70 7 18 19 20 21 0 23 24 25 26 27 28 £2 PRINTED ON RECYCLED PAPER broad discretion in determining the relevance of evidence, but lacks discretion to admit irrelevant evidence. People v. Benavides (2005) 35 Cal. 4" 69. Further, Evidence Code section 352 states: The 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. Information relating to past ticket history and license suspension, which appears to be complete conjecture, should be excluded from this trial for the reasons cited above. IV. CONCLUSION Plaintiffs respectfully request that the Court grant this motion in its entirety. Dated: May 7, 2018 AITKEN4+AITKEN 4+ COHN > ATTICUS N. WEGNIA Q. Attorneys for Plaing{s 5 PLAINTIFFS’ MOTION IN LIMINE NO. 2 RE PAST TICKET HISTORY AND SUSPENSIONS; DECLARATION OF ATTICUS N. WEGMAN; [PROPOSED] ORDER - 2 3 4 5 6 7 8 9 10 11 12 = 13 iz 18 ’ 19 20 21 22 23 24 25 26 27 28 €9 PRINTED ON RECYCLED PAPER PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I 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 3 MacArthur Place, Suite 800, Santa Ana, California, 92707. On June 15, 2018 , I served the foregoing documents described as PLAINTIFFS’ MOTION IN LIMINE NO. 2 RE PAST TICKET HISTORY AND SUSPENSIONS; DECLARATION OF ATTICUS N. WEGMAN; [PROPOSED] ORDER on the parties herein in this action by placing ( ) the original (x) a true copy thereof in a sealed envelope addressed as indicated on the attached service list. (X) BY MAIL (X) As follows: Iam "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Santa Ana, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date apes meter date is more than one day after date of deposit for mailing an affidavit. ( ) By Personal Service: I caused the above-referenced the document(s) to be delivered by hand to the attached addressees. ( ) By Overnight Courier: I caused the above-referenced document(s) to be delivered to an overnight courier service for delivery to the above address(es). ( ) By Facsimile Machine: I caused the above-referenced document(s) to be transmitted to the above-named persons at the following telephone number(s) see attached Proof of Service list. (X) By Email Transmission: I caused the above-referenced document(s) to be transmitted to the persons listed in the attached Proof of Service lists. Executed on June 15, 2018 at Santa Ana, California. (X) (State) I declare under penalty of perjury under the laws of the State of California that th above is true and correct. stin McCarthy 6 PLAINTIFFS’ MOTION IN LIMINE NO. 2 RE PAST TICKET HISTORY AND SUSPENSIONS; DECLARATION OF ATTICUS N. WEGMAN; [PROPOSED] ORDER A I T K E N 4 A I T K E N 4+ C O H N 3 M A C A R T H U R P L A C E , S U I T E 80 0 A L N S O 0 NN O N Win 1 11 12 13 14 15 16 17 18 19 20 21 71 4- 43 4- 14 24 71 4- 43 4- 36 00 FA CS IM IL E S A N T A A N A , C A 92 70 7 22 23 24 25 26 27 28 £2 PRINTED ON RECYCLED PAPER HARPER v. LOPEZ, et al. SERVICE LIST Debra L. Braasch, Esq. Scott L. MacDonald MACDONALD & CODY LLP 38 Executive Park, Suite 280 Irvine, CA 92614 (714) 831-1713 (714) 823-3229-fax Attorneys for Defendants/ Cross- Complainants/Cross-Defendants TUTTLE CLICK'S CAPISTRANO FORD, INC. (erroneously sued and served as "Capistrano Ford") and RAUL NAJERA LOPEZ Richard C. Moreno, Esq. Steven J. McEvoy , Esq. MURCHISON & CUMMING LLP 801 South Grand Ave., 9th Floor Los Angeles, CA 90017 (213) 623-7400 (213) 623-6336-fax Attorneys for Defendants/Cross- Complainants /Cross-Defendants DNJ SERVICES LLC, DONALD PINKUS; Defendants/Cross-Defendants CERVANDO SALGADO, ROE 1 AND URS MIDWEST, INC., ROE 2 7 PLAINTIFFS’ MOTION IN LIMINE NO. 2 RE PAST TICKET HISTORY AND SUSPENSIONS; DECLARATION OF ATTICUS N. WEGMAN; [PROPOSED] ORDER