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 oS O co J (@ ) 1 11 12 13 14 15 16 17 18 19 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 20 21 22 23 24 2 26 27 ~NO £2 PRINTED ON RECYCLED PAPER ELECTRONICALLY FILED ATTICUS N. WEGMAN, ESQ. (SBN 273496) Superior Court of California, AITKEN 4+ AITKEN 4 COHN County of Orange 3 MACARTHUR PLACE, SUITE 800 06/18/2018 at 02:00:00 A P.O. BOX 2555 Clerk of the Superior Court penor aL SANTA ANA, CA 92707-2555 By Jorge A Gomez, Deputy Clerk (714) 434-1424/(714) 434-3600 FAX Attorneys for Plaintiffs LAURENCE HARPER and MICHAELYN MILOSEVICH-HARPER SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER CASE NO: 30-2016-00846007 [Hon. Theodore Howard, Dept. C18] LAURENCE HARPER, an individual; MICHAEL YN MILOSEVICH-HARPER, an individual; oo Plaltict PLAINTIFFS’ MOTION IN LIMINE NO. 10 RE EXCLUDING MATERIALS PROVIDED BY EXPERT CATHY GRAVES THAT WERE PROTECTED UNDER MEDIATION CONFIDENTIALITY PRIVILEGE; [PROPOSED] ORDER VS. RAUL NAJERA LOPEZ, an individual; CAPISTRANO FORD, a business organization, form unknown; DOES 1 to 10, inclusive; Defendants. Trial Date: May 7, 2018 Time: 9:00 a.m. AND RELATED CROSS-ACTIONS. Dept.: C18 N r N r ” N a r ” N e N e ’ N e N e ae N a a a a a a N a SN SN a Complaint Filed: 4/13/16 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. 10: An order precluding Defendants’ counsel from introducing evidence of materials 1 PLAINTIFFS’ MOTION IN LIMINE NO. 10 RE EXCLUDING MATERIALS PROVIDED BY EXPERT CATHY GRAVES THAT WERE PROTECTED UNDER MEDIATION CONFIDENTIALITY PRIVILEGE; [PROPOSED] ORDER A I T K E N + 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 No OS OO 0 NN O N nn B W Pr dk e d e d e d e d e d A A On B A L D = 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 D O NO No No No \) ND = - - lo ) WD E N Ww \) - = oO 0 J No ~ ~NO £2 PRINTED ON RECYCLED PAPER provided by Cathy Graves that were protected under mediation confidentiality privilege; 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 AITKEN4AITKEN4 COHN (le » HL ATTICUS N. WEG » ESQ. Attorneys for PlainftiTfs 2 PLAINTIFFS’ MOTION IN LIMINE NO. 10 RE EXCLUDING MATERIALS PROVIDED BY EXPERT CATHY GRAVES THAT WERE PROTECTED UNDER MEDIATION CONFIDENTIALITY PRIVILEGE; [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 SS OO 0 NN O N Un BRE W N = -_ em e e p e p m p e AA WL» B A W N D = 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 N N No No NS ] B N R = = - AN Wn A W No - Oo OO © 3 No ~ NO £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. Harper’s 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. 10 RE EXCLUDING MATERIALS PROVIDED BY EXPERT CATHY GRAVES THAT WERE PROTECTED UNDER MEDIATION CONFIDENTIALITY PRIVILEGE; [PROPOSED] ORDER I A I T K E N 4 A I T K E N 4 C O H N No = Ww SS O X 9 O N Wn 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 3 M A C A R T H U R P L A C E , SU IT E 80 0 S A N T A AN A, CA 92 70 7 22 43 24 25 26 27 NO £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. ALL MATERIALS SUBMITTED AS PART OF MEDIATION ARE TO BE KEPT CONFIDENTIAL California has a strong, inflexible statutory and public policy to preserve the confidentiality of mediation communications. Evidence Code sections 1115 through 1128 provide protection for the confidentiality of mediation proceedings, including all discussions and all materials submitted for mediation. Evidence Code section 1119 provides: Except as otherwise provided in this chapter: (a) No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given. (b) No writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given. (c) All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential. (emphasis added) There is a strong public policy in favor of protecting the confidentiality of settlement discussions, in order to facilitate free and frank discussions during mediations. As the California Supreme Court emphasized: 4 PLAINTIFFS’ MOTION IN LIMINE NO. 10 RE EXCLUDING MATERIALS PROVIDED BY EXPERT CATHY GRAVES THAT WERE PROTECTED UNDER MEDIATION CONFIDENTIALITY PRIVILEGE; [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 ~~ L N SS OO 0 NN O Y Wn 1 11 12 13 14 15 16 17 18 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 19 20 21 22 23 24 25 26 27 NO £2 PRINTED ON RECYCLED PAPER ‘[Clonfidentiality is essential to effective mediation’ because it ‘promote[s] “a candid and informal exchange regarding events in the past. . . . This frank exchange is achieved only if participants know that what is said in the mediation will not be used to their detriment through later court proceedings and other adjudicatory processes.” [Citations.]’ Rojas v. Superior Court (2004) 33 Cal.4th 407, 415, emphasis added. Further, Section 1119 protects the drafting attorneys’ work product - their mental impressions and evaluation of the case - from being revealed to third parties, including experts and consultants. Code Civ. Proc. § 2018.020. Section 1119 protects both the parties’ mediation discussions and other materials prepared for the mediation. In Rojas, supra, a building defect case where defendants had provided photos and expert reports at mediation, defendants refused to produce these materials in discovery. The Supreme Court held that the mediation confidentiality for “writings” applied to witnesses’ statements, analyses of raw test data, and photographs prepared for mediation. The Supreme Court considered the Law Review Commission’s comments on section 1119 and rejected the idea that expert reports prepared for mediation were excepted from confidentiality protection: “These materials show that, in making its recommendation regarding mediation confidentiality, the Commission specifically considered the discoverability of both expert reports and photographs and drafted its proposed confidentiality provisions to preclude discovery of such reports and photographs if they were ‘prepared for the purpose of, in the course of, or pursuant to, a mediation.” Rojas, supra, 33 Cal.4th 407, 420, emphasis added. Under the holding in Rojas, all of the materials provided by plaintiffs at mediation, including expert reports, are protected materials that are not to be revealed without plaintiffs’ consent. (See also Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137 (discovery of statements made at mediation not allowed)); Hinshaw, Winkler, Draa, Marsh & Still (1996) 51 Cal.App.4th 233 (public policy considerations precluded discovery of the terms of a confidential settlement attorneys achieved for other clients.) In this matter, Plaintiff’s expert economist Cathy Graves issued a report for mediation 5 PLAINTIFFS’ MOTION IN LIMINE NO. 10 RE EXCLUDING MATERIALS PROVIDED BY EXPERT CATHY GRAVES THAT WERE PROTECTED UNDER MEDIATION CONFIDENTIALITY PRIVILEGE; [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 = L o OS OO 0 0 O Y Wn 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 al 23 24 25 26 27 ~O £2 PRINTED ON RECYCLED PAPER purposes, only. The report itself conspicuously stated it was for mediation purposes, only. Post mediation, and during expert discovery, Ms. Graves authored another report that corrected a minor error that was noted in the report produced under the mediation privilege. Plaintiffs believe Defendant will attempt to elicit testimony from Ms. Graves about her mediation protected report and compare it to her discoverable report to highlight the difference. Plaintiffs would be prejudiced if the Court allows Defendant to do this. Doing so, would essentially be allowing Defendant to attack Ms. Graves’s accuracy and credibility by showing that she made an inadvertent and improper calculation in a report authored for mediation purposes. Second, and equally important, if the Defendants are allowed to discuss Ms. Graves mediation protected report, the jury will certainly be informed of prior settlement discussions between the parties. Such evidence is also inadmissible. Evidence Code § 1119 is not a “privilege,” but a declaration that no evidence of any kind presented or made in a mediation “is admissible or subject to discovery.” This is not a “privilege” that can be waived, and the public policy is carried forward and underscored in §§ 1120 and 1121. Finally, and significantly, the California Supreme Court has emphatically reaffirmed the sanctity of mediation confidentiality, even in a legal malpractice context, in which a former client sued his lawyer for claimed malpractice during a mediation and was precluded from testifying about what his own lawyer said to him during the mediation! In Cassel v. Superior Court (2011) 5 Cal.4th 113, the Supreme Court confirmed that the Legislature crafted a confidentiality statute that broadly protected communications in anticipation of, during, and concerning a mediation: In order to encourage the candor necessary to a successful mediation, the Legislature has broadly provided for the confidentiality of things spoken or written in connection with a mediation proceeding. With specified statutory exceptions, neither “evidence of anything said,” nor any “writing,” is discoverable or admissible “in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which . . . testimony can be compelled to be 6 PLAINTIFFS’ MOTION IN LIMINE NO. 10 RE EXCLUDING MATERIALS PROVIDED BY EXPERT CATHY GRAVES THAT WERE PROTECTED UNDER MEDIATION CONFIDENTIALITY PRIVILEGE; [PROPOSED] ORDER A I T K E N + 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 wo No oS SOS © 0 NN O N Wn 1 11 12 13 14 15 16 17 18 19 20 21 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 22 23 24 25 26 2] “NO £2 PRINTED ON RECYCLED PAPER given,” if the statement was made, or the writing was prepared, “for the purpose of, in the course of, or pursuant to, a mediation....” (Evid. Code § 1119, subds. (a), (b).) “All communications, negotiations, or settlement discussions by and between participants in the course of a mediation ... shall remain confidential.” (/d., subd. (c).) We have repeatedly said that these confidentiality provisions are clear and absolute. Except in rare circumstances, they must be strictly applied and do not permit judicially crafted exceptions or limitations, even where competing public policies may be affected. Citations omitted; /d. at 117. The Cassel Court further held: It follows that, absent an express statutory exception, all discussions conducted in preparation for mediation, as well as all mediation-related communications that take place during the mediation itself, are protected from disclosure. Plainly, such communications include those between a mediation disputant and his or her own counsel, even if these do not occur in the presence of the mediator or other disputants. Id. at 129. There can be no dispute that confidential mediation materials are to remain confidential at all costs. As such, Plaintiffs seek an order from this Court ordering that Defendant not refer to or elicit the information as noted above in this trial. III. REFERENCE TO MEDIATION MATERIALS AT A TRIAL IS REVERSIBLE ERROR COMPELLING A NEW In keeping with the strong public policy in favor of confidentiality of settlement, Evidence Code section 1128 provides that the improper use of or reference to mediation materials at trial is an “irregularity” in the proceedings that constitutes grounds for vacating or modifying the decision: “Any reference to a mediation during any subsequent trial is an irregularity in the proceedings of the trial for the purposes of Section 657 of the Code of Civil Procedure. Any reference to a mediation during any other subsequent noncriminal proceeding is grounds for vacating or modifying the decision in that proceeding, in whole or in part, and granting a new or further hearing on all or part of the issues, if the reference materially affected the substantial rights of the party requesting relief.” Evid. Code §1128, emphasis added. I 7 PLAINTIFFS’ MOTION IN LIMINE NO. 10 RE EXCLUDING MATERIALS PROVIDED BY EXPERT CATHY GRAVES THAT WERE PROTECTED UNDER MEDIATION CONFIDENTIALITY PRIVILEGE; [PROPOSED] ORDER 2 3 4 5 6 7 8 9 10 11 12 g 13 28 spe PIT 5 52389 15 Ende Zx%313 16 += 2 PATA E57 17 ESS = “2 7 18 19 20 21 22 23 24 25 26 27 “NO £2 PRINTED ON RECYCLED PAPER IV. CONCLUSION Plaintiffs respectfully request that the Court grant this motion in its entirety. Dated: May 7, 2018 AITKEN4+AITKEN4+ COHN (tte 44 By: ATTICUS N. WEGMANTESQ. Attorneys for Plaiw#dts 8 PLAINTIFFS’ MOTION IN LIMINE NO. 10 RE EXCLUDING MATERIALS PROVIDED BY EXPERT CATHY GRAVES THAT WERE PROTECTED UNDER MEDIATION CONFIDENTIALITY PRIVILEGE; [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 © 0 9 Oo Un Br WwW o N = -_ = p d p e d p e d p d p e d A A wn A W N = OO 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 \) No No No N N rN - - - aN wi H W No = = \O oo 2 No ~ “NO €» 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. 10 RE RE EXCLUDING MATERIALS PROVIDED BY] EXPERT CATHY GRAVES THAT WERE PROTECTED UNDER MEDIATION CONFIDENTIALITY PRIVILEGE 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 oF postage 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 the 9 PLAINTIFFS’ MOTION IN LIMINE NO. 10 RE EXCLUDING MATERIALS PROVIDED BY EXPERT CATHY GRAVES THAT WERE PROTECTED UNDER MEDIATION CONFIDENTIALITY PRIVILEGE; [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 BA W N S S OO 0X NN O N WD» 1 11 12 13 14 15 16 71 4- 43 4- 14 24 71 4- 43 4- 36 00 FA CS IM IL E 17 S A N T A A N A , C A 92 70 7 18 19 20 21 22 23 24 25 26 27 ~O £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 PLAINTIFFS’ MOTION IN LIMINE NO. 10 RE EXCLUDING MATERIALS PROVIDED BY EXPERT CATHY GRAVES THAT WERE PROTECTED UNDER MEDIATION CONFIDENTIALITY PRIVILEGE; [PROPOSED] ORDER