Kristin R. Cappel vs. Fca Us LLC

Motion in Limine

Cal. Super. - 4th Dist.April 21, 2016

OO 0 N N BA W N N O N ND DN RN N N N N m m e m e m em pe e e m e m e t md ed 00 ~~ A N Wn bh W N = O YO 0 0 N Y R A W N = Oo KNIGHT LAW GROUP, LLP Steve B. Mikhov (SBN 224676) 1801 Century Park East, Suite 2300 Los Angeles, CA 90067 Telephone: (310) 552-2250 Facsimile: (310) 552-7973 ELECTRONICALLY FILED Superior Court of California, County of Orange 1002017 at 04:03:00 Pi Clerk of the Superior Court By Georgina Ramirez, Deputy Clerk LAW OFFICES OF MICHAEL H. ROSENSTEIN, LC Michael H. Rosenstein (SBN 169091) Brian T. Shippen-Murray (SBN 288188) 1801 Century Park East, Suite 2300 Los Angeles, California 90067 Telephone: (310) 286-0275 Facsimile: (310) 286-0274 Attorneys for Plaintiff, KRISTIN R. CAPPEL SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE KRISTIN R. CAPPEL, Plaintiff, Vs. FCA US LLC, a Delaware Limited Liability Company; TUTTLE-CLICK TUSTIN, INC. dba TUTTLE-CLICK’S TUSTIN CHRYSLER JEEP DODGE, a California Corporation, and DOES 1 through 10, inclusive, Defendants. Case No.: 30-2016-00847858-CU-BC-CJC Judge: Hon. Ronald L. Bauer Ctrm: Dept. CX103 PLAINTIFF’S MOTION IN LIMINE NO. 2 TO PROHIBIT REFERENCE TO ATTORNEY FEES Trial: Filed: October 16, 2017 April 21, 2016 PLAINTIFF'S MIL NO. 2 30-2016-00847858-CU-BC-CIC OO 00 N N nn R w N O N RN N N N N N N m m e m a e s ma e m e a e m Ww N N N Un BR W N = O O e R W N Y = O TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that plaintiff Kristin R. Cappel (“Plaintiff”) moves the Court in limine for an order prohibiting reference to attorney fees. Plaintiff further moves the Court to instruct all parties and their counsel, as well as require counsel to advise all witnesses of the following: L. Not to attempt to convey to the jury, directly or indirectly, any of the facts mentioned in this Motion without first obtaining permission from the Court outside the presence and hearing of the jury; 2. Not to make any reference to the fact that this Motion has been filed; and, 3. To warn and caution all witnesses to strictly follow the same instructions. This motion is based upon the supporting Memorandum of Points and Authorities, the Declaration of Brian T. Shippen-Murray attached hereto, the papers and pleadings on file in this action, and upon such further matters that may be presented at the hearing. Dated: _\(D % | lot? LAW OFFICES OF MICHAEL H. ROSENSTEIN : “2 Ne _ 1 Tol \J Michael H. Rosenstein Brian T. Shippen-Murray Attorneys for Plaintiff, KRISTIN R. CAPPEL PLAINTIFF'S MIL NO. 2 30-2016-00847838-CU-BC-CIC OO 0 a1 A Un Bs W N N N N N ND N N N N m m m m e m e m e m e m he e d e e 0 NN AN Un A W N = O N O X N N R W N = Oo MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION Plaintiff Kristin R. Cappel (“Plaintiff”) initiated this action against FCA US LLC (“FCA” or “Defendant”) and Tuttle-Click Tustin, Inc. (“Tuttle-Click™) for breach of warranty under the Song-Beverly Consumer Warranty Act (the “Song-Beverly Act”), Civ. Code, § 1790 et seq., and for fraudulent concealment. The underlying action involves various issues Plaintiff experienced with her 2011 Jeep Grand Cherokee (the “Subject Vehicle”) and subsequent repair presentations to Defendant’s authorized dealership. Plaintiff anticipates that Defendant may seek to disclose to the jury that Plaintiff does not have to pay out-of-pocket for her attorneys or that if the jury finds in favor of Plaintiff, that Defendant will be responsible for Plaintiff’s attorneys’ fees. This evidence is not relevant to Plaintiff's underlying claims and would be prejudicial to the jury. Accordingly, this motion in limine seeks exclude any reference to attorneys’ fees. IL STATEMENT OF FACTS On July 14, 2011, Plaintiff purchased the Subject Vehicle from Tuttle-Click Tustin, Inc. The Jeep was manufactured and warranted by FCA US. The purchase price of the Subject Vehicle was $48,904.40. The Subject Vehicle was manufactured and warranted by Defendant. After only three months and 2,575 miles, Plaintiff began to experience significant drivability concerns with the Subject Vehicle. When driving at highway speed, the Subject Vehicle would lose power and feel as if it were going to stall. The dealership verified Plaintiff’s concern and undertook to repair defects in the Subject Vehicle. Plaintiff continued to deliver the Subject Vehicle to Defendant’s authorized repair facility to address engine concerns and to perform safety recalls. After each presentation, Defendant’s authorized repair facility represented to Plaintiff that the Subject Vehicle was repaired and was safe to operate. All repairs were conducted under Defendant’s express warranty. " I PLAINTIFF'S MIL NO. 2 30-2016-00847858-CU-BC-CIC OO 0 N S N RA W N N O N N N N N N D N D N em em e d ee e m = e m a 0 ~~ O N Un pA W N = O O e N N R W N = OO Plaintiff claims the Subject Vehicle was delivered containing defects, including but not limited to, issues with the TIPM-7. The TIPM-7 consists of a computer, fuses, and internal relays, and is responsible for controlling and distributing electrical power to the entire vehicle—everything from steering and brakes, to the alarm, headlights, and the fuel pump. The TIPM-7 provides the primary means of voltage distribution and protection for the entire vehicle, and FCA acknowledges that the TIPM is intended to provide safe, reliable, and centralized distribution of power to the Subject Vehicle's electrical systems. Additionally, Plaintiff contends the Subject Vehicle’s defects violated the express warranty extended by FCA because FCA failed to repair the Subject Vehicle’s during the warranty period despite being afforded a reasonable number of attempts to do so. Further, Plaintiff claims that FCA had prior knowledge of the TIPM-7 defect and knew or should have known that this defect would not be known nor reasonably discoverable by Plaintiff. Plaintiff also contends that FCA breached the implied warranty of merchantability because the Subject Vehicle was not of the same quality generally acceptable in the trade or was not fit for the ordinary purpose for which a vehicle is intended. Specifically, Plaintiff argues that the Subject Vehicle was equipped with transmission, electrical, suspension, and engine defects. As a result, the Subject Vehicle experiences, among other problems, frequent check engine light warnings. The problems with the Subject Vehicle are well documented. As early as 2007, FCA knew or should have known about the TIPM-7 defects through its exhaustive pre-release vehicle testing and FCA’s exclusive access to post-sale data about the performance of and repairs made to its vehicles. FCA also knew or should have known about the TIPM-7 defects by the numerous consumer complaints submitted to FCA and to the National Highway Traffic Safety Administration (“NHTSA”), multiple TIPM related recalls and technical service bulletins (“TSBs”) conducted as stop-gap measures. The use of limited recalls and TSBs as stop-gap measures demonstrates a pattern of concealment and improper denial of the TIPM defect by FCA. i PLAINTIFF'S MIL NO. 2 30-2016-00847838-CU-BC-CIC OO 0 N Y nn A W N = N N N N ND N N ND ND = em e d e m e m e d e e e d pe d ed 0 ~~ O N Wn BEA W N = O YW N Y N E W N = On December 7, 2015, Plaintiff contacted Defendant through its customer call center and requested that Defendant repurchase the Subject Vehicle. Defendant immediately denied Plaintiff’s buyback request without any further analysis or escalation. As such, on April 21, 2016, Plaintiff was forced to initiate this action. III. ARGUMENT A. The Parties Should Not be Permitted to Reference Attorneys’ Fees: Any reference to attorneys’ fees should be prohibited at trial because they is not relevant to any of the causes of action in the complaint or the answers in the defense. Moreover, their de minimis probative value is substantially outweighed by its prejudicial affect. Evidence is relevant if it has “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) Further, “[n]o evidence is admissible except relevant evidence.” (Evid. Code, § 350.) The Song-Beverly Act applies a two-part test to the question of whether a vehicle qualifies for repurchase: (1) the vehicle has a nonconformity to warranty; and (2) the manufacturer or its representative is unable to properly repair it after “a reasonable number of attempts.” (Civ. Code, § 1793.2.) If these elements are met, Defendant should be found liable for its violation. The statute leaves no room to consider attorney fees. On the contrary, the award of attorney fees is a matter for the court. This action is brought pursuant to consumer protection statutes that entitle a prevailing consumer to recover costs and attorney fees. The Song-Beverly Act allows a prevailing buyer to "recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action." (Civ. Code, § 1794(d) [emphasis added].) As the language of the statute demonstrates, the ultimate award of attorney fees in these matters is determined by the court, not the jury. In other words, attorney fees are facts of no consequence to the determination of the action. I PLAINTIFF'S MIL NO. 2 30-2016-00847838-CU-BC-CIC oO 0 N N N n n Re W N N O N N N O N N O N NN ND m t m m mm e m p m e d em p m e t 0 3 A N LL bh W N = O O R N Y N RE W N —- Oo Moreover, the Song-Beverly Act is a remedial statute designed to protect consumers. (Martinez v. Kia Motors America, Inc. (2007) 193 Cal.App.4th 187, 192.) Accordingly, it must be construed to bring its intended effect — the protection of consumers. (Dominguez v. American Suzuki Motor Corp. (2008) 160 Cal. App.4th 53, 58.) As such, evidence or argument that the application of the statute might have financial repercussions should not be permitted. Assuming for the sake of argument that the evidence is marginally relevant, it should be excluded because any probative value is substantially outweighed by prejudicial factors. “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, confusing the issues, or misleading the jury.” (Evid. Code, § 352.) First, such an introduction would necessitate an undue consumption of time. (Evid. Code, § 352.) If Defendant was permitted to introduce such evidence or argument, Plaintiff would be required to consume time to introduce evidence setting forth the purpose of the statute and the legislative intent. Second, evidence related to an award of attorney fees would be unduly prejudicial. (Evid. Code, § 352.) As discussed, the statute was enacted to protect consumers. The statute explicitly provides for the award of attorney fees in order to effectuate the purpose of the statute. Argument or evidence in that regard does not comport with the purpose of the statute. Moreover, in Brooks v. Cook (1991) 938 F.2d 1048, 1051, the dissemination of this information was found to be so prejudicial that it constituted grounds for a new trial for the plaintiff. (/bid.) In Brooks, the court recognized that the important policy considerations for the fee-shifting provision would be undermined if the jury was informed of the possibility of fees. (Ibid) The court noted: In a case where the plaintiff is entitled to compensatory damages, informing the jury of the plaintiff’s potential right to receive attorneys' fees might lead the jury to offset the fees by reducing the damage award. Even more troubling, however, is the case where actual damages are small or nonexistent. When damages are nominal, there is a risk that the jury may believe that the "harm" does not justify the payment of a large fee award. The jury may thus decide to find for the defendant rather than allow the plaintiff's attorney to recover fees. _6- PLAINTIFF’S MIL NO. 2 30-2016-00847858-CU-BC-CIC Oo 0 N N B R A W N N O R O D N N O N O N O N O N DN r e m m me d p m p t mb pe d e d e d 0 N O N nn hk W N = QO YO N O Y R W NN — - , O (Id. at 1051.) The Brooks case involved claims under 42 U.S.C., § 1988, which provides that the court may allow the prevailing party to recover attorney fees. The jury's sole role in the case at bar is determining liability and damages. Informing the jury of the potential to recover attorney fees needlessly involves the jury in the court's role of awarding attorney fees. Such needless involvement of the jury would likely lead to undue consumption of trial time addressing an issue that the jury will not consider and to the confusion of the issues. (Evid. Code, § 352.) Finally, any reference to attorney fees would confuse the relevant issues and therefore mislead the jury. (Evid. Code, § 352.) For a manufacturer to be required to repurchase or replace a vehicle, Plaintiff must demonstrate only that (1) a vehicle has a nonconformity and (2) the manufacturer was unable to repair the vehicle after “a reasonable number of attempts.” (Civ. Code, § 1793.2.) The statute leaves no room to consider the potential award of attorney fees. Accordingly, evidence or argument in this regard would confuse the relevant issues and mislead the jury. IV. CONCLUSION Accordingly, this motion in /imine should be granted and Defendants should be precluded from making any reference to attorneys’ fees. Dated: tof 8 | oil? ICES OF MICHAEL H. ROSENSTEIN Michael H. Rosenstein Brian T. Shippen-Murray Attorneys for Plaintiff, KRISTIN R. CAPPEL PLAINTIFF'S MIL NO. 2 30-2016-00847858-CU-BC-CIC OO 0 N N N nn B A W = N O N N N N O N N O N O N mm em p m o p t e d e m t e d e d e d ee O00 N O N nn lm W N = D N D N D Y nn R W ND O DECLARATION OF BRIAN T. SHIPPEN-MURRAY I, Brian T. Shippen-Murray, declare as follows: 1. I am an attorney licensed to practice law in the State of California. I am an associate attorney at the Law Offices of Michael H. Rosenstein, attorneys of record in association with the law firm of Knight Law Group, LLP as counsel for plaintiff Kristin R. Cappel (“Plaintiff”) in the above-captioned matter. 2. I have personal knowledge of the following facts and if sworn as a witness, I could and would testify to them competently. 3. The introduction at trial of any reference to attorney fees would incurably prejudice Plaintiff. 4, If Defendant stipulates prior to the hearing on to this motion, this motion ix limine will be withdrawn. Plaintiff will immediately notify the court of the same. 5. Plaintiff will suffer an undue prejudice if this motion is not granted since Plaintiff has prepared this case assuming that any reference to attorney fees would be prohibited. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed October 7, 2017, in Los Angeles, California. PLAINTIFF'S MIL NO. 2 30-2016-00847838-CU-BC-CIC Oo 0 N N N nn BR W N N O N RN O N ND DN N N N m m e m mm p m e m p m pe d e d e a 0 NN O N BR W N = O O N O N R W ~= , SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE KRISTIN R. CAPPEL, Case No.: 30-2016-00847858-CU-BC-CIC Judge: Hon. Ronald L. Bauer Plaintiff, Ctrm: Dept. CX103 vs. [PROPOSED] ORDER GRANTING PLAINTIFF’S MOTION IN LIMINE TO FCA US LLC, a Delaware Limited Liability PROHIBIT REFERENCE TO Company; TUTTLE-CLICK TUSTIN, INC. ATTORNEY FEES dba TUTTLE-CLICK’S TUSTIN CHRYSLER JEEP DODGE, a California Trial: October 16, 2017 Corporation, and DOES 1 through 10, Filed: April 21,2016 inclusive, Defendants. Having considered the in limine motion filed by plaintiff Kristin R. Cappel (“Plaintiff”) to prohibit any reference, testimony, or evidence regarding attorney fees, IT IS HEREBY ORDERED that the motion is GRANTED. Defendant FCA US LLC (“FCA”) and defendant Tuttle-Click Tustin, Inc. (“Tuttle- Click”) (collectively “Defendants™) and counsel shall advise all witnesses that: 1. Defendant, its attorneys, and witnesses are prohibited from introducing or attempting to introduce, either directly or indirectly, any reference, testimony, or evidence regarding attorney fees. PLAINTIFF'S MIL NO. 2 30-2016-00847858-CU-BC-CIC No 0 N N nn R W N = N O N N O N DN N O N O N DN m m m m e m e m mm h m be m e m t p m pe e WW N N N Ln bk W N = O D R N N YN N R W N = Oo 2, Defendants and their witnesses shall refrain from mentioning or referring to evidence of the type described above in the presence or hearing of jurors or prospective jurors; and 3. Defendants’ attorneys shall immediately inform Defendants and their witnesses of the terms and effect of the Court’s order, shall caution each of the Defendants’ witnesses to strictly follow the same, and shall not make any reference to the fact that this motion has been filed. Dated: Superior Court Judge Prepared by: LAW OFFICES OF MICHAEL H. ROSENSTEIN Michael H. Rosenstein (SBN 169091) Brian T. Shippen-Murray (SBN 288188) 1801 Century Park East, Suite 2300 Los Angeles, CA 90067 Telephone: (310) 286-0275 Facsimile: (310) 286-0274 Attorneys for Plaintiff, KRISTIN R. CAPPEL -10 - PLAINTIFF'S MIL NO. 2 30-2016-00847858-CU-BC-CIC NO 0 N N Ln R W N e N O N O N RN O N N N O N ND mm mm o e m mt mm mm pe d pe d e m pe WwW N N N B R A W N = D O 0 N N N Y L NY — o o PROOF OF SERVICE STATE OF CALIFORNIA IN THE COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. Iam over the age of 18 and not a party to the within action. My business address is 1801 Century Park East, Suite 2300, Los Angeles, California 90067. On October 8, 2017, I served the foregoing document described as PLAINTIFF'S MOTION IN LIMINE NO. 2 TO PROHIBIT REFERENCE TO ATTORNEY FEES in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows: NIXON PEABODY, LLP Scott S. Shepardson [sshepardson@nixonpeabody.com] 1 Embarcadero Center, Suite 1800 San Francisco, California 94111 Attorneys for Defendants, FCA US, LLC and TUTTLE-CLICK TUSTIN, INC. ( BY MAIL: I caused such envelope to be deposited in the mail at Los Angeles, CA. The envelope was mailed with postage thereon fully prepaid. I am "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 Los Angeles, CA, in the ordinary course of business. I am aware that on motion of a party served, service is presumed invalid if postal cancellation date or postage meter is more than one day after date of deposit for mailing in affidavit. ] BY OVERNIGHT DELIVERY: I enclosed the document(s) in an envelope or package provided by an overnight delivery carrier and addressed to the person(s) at the address(es) above. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. XX BY ELECTRONIC MAIL: I caused to be transmitted the document(s) described herein via the electronic mail addresses listed above. DX] STATE: declare, under penalty of perjury under the laws of the State of California, that the foregoing is true and correct. Executed on October 8, 2017, at Los Angeles, California. ray “11 - PLAINTIFF’S MIL NO. 2 30-2016-00847858-CU-BC-CIC