Andrea Knohl-Trider vs. Rebecca Foster

Opposition

Cal. Super. - 4th Dist.September 12, 2016

20 21 22 23 24 25 26 27 28 Anna Salusky, Esq. (SBN 222484) asalusky@mahoney-law.net Michael A. Swift, Esq. (SBN: 296993) mswift@mahoney-law.net MAHONEY LAW GROUP, APC 249 E. Ocean Blvd., Ste. 814 Long Beach, CA 90802 Telephone: (562) 590-5550 Facsimile: (562) 590-8400 ELECTRONICALLY FILED Superior Court of California, County of Orange 0112/2018 at 10:58:00 Aw Clerk of the Superior Court By & Clerk, Deputy Clerk Attorneys for Plaintiffs ANDREA KNOHL-TRIDER and GRANT-Tkiver by and through his guardian ad litem, ANDREA KNOHL-TRIDER SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE - CENTRAL JUSTICE CENTER ANDREA KNOHL-TRIDER, an individual; GRANT TRIDER, by and through his guardian ad litem, ANDREA KNOHL- TRIDER, Plaintiffs, V. REBECCA FOSTER, an individual; RAMON M.G. SORIANO, M.D.; an individual; ASUNCION G. RAMOS-SORIANO, M.D; an individual; SORIANO INVESTMENTS LIMITED PARTNERSHIP, a Texas Corporation; IRVINE PROPERTY MANAGEMENT, INC., a California Corporation; and DOES 1-100, inclusive, Defendants. Case No. 30-2016-00874402-CU-PO-CJC PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 3 FOR AN ORDER PRECLUDING PLAINTIFFS FROM PRESENTING EVIDENCE OF PAIN AND SUFFERING Assigned for All Purposes to: Hon. David R. Chaffee, Dept.: C20 Hearing: Trial Date: January 18, 2018 Time: 9:00 a.m. Dept.: C20 Complaint Filed: September 12, 2016 Trial Date: January 16,2018 PLAINTIFFS” OPPOSITION TO MOTION IN LIMINE NO. 3 24 25 26 27 28 Plaintiffs, Andrea Knohl-Trider and Grant Trider (collectively referred to as “Plaintiffs™), submit the following opposition to Defendants, Ramon M.G. Soriano, M.D, Asuncion G. Ramos- Soriano, M.D., and Soriano Investments Limited Partnership’s (collectively referred to as “Defendants”), Motion in Limine No. 3, for an order precluding Plaintiffs from presenting evidence of pain and suffering. L EVIDENCE AT ISSUE Defendants seek to exclude testimony, evidence, or argument relating to Plaintiffs’ pain and suffering on the grounds that in nuisance and trespass actions, damages are available for “annoyance and discomfort,” but not pain and suffering. However, the Defendants disregard the fact that the Plaintiffs have plead three causes of action, which provide for three alternative theories of recovery: (1) negligence, (2) nuisance, and (3) trespass. Under a claim for negligence, Plaintiffs are entitled to recover damages for pain and suffering. II. LEGAL STANDARD A. Motions in Limine A motion in limine is generally proper to seek to exclude “any kind of evidence which could be objected to at trial, either as irrelevant or subject to discretionary exclusion as unduly prejudicial.” (Clemens v. American Warranty Corp. (1987) 193 Cal.App.3d 444, 451.) “The advantage of such motions is to avoid the obviously futile attempt to unring the bell in the event a motion to strike is granted in the proceedings before the jury.” (Hyatt v. Sierra Boat Co. (1978) 79 Cal. App.3d 325, 337.) However, motions in limine are not intended to preclude relevant evidence offered at trial, or to replace the use of dispositive motions before trial. (See Amtower v. Photon Dynamics (2008) 158 Cal. App.4th 1582, 1593 (indicating “what in limine motions are not designed to do is to replace the dispositive motions prescribed by the Code of Civil Procedure.”)) California courts have criticized the use of motions in limine to attempt to achieve the results of summary adjudication or other types of motions that dispose of entire claims. (Id. at 1594.) To do so would “circumvent procedural protections provided by the statutory motions or by trial on the merits; they risk blindsiding the nonmoving party; and in some cases, they could infringe a litigant’s right 2 PLAINTIFFS” OPPOSITION TO MOTION IN LIMINE NO. 3 20 21 22 24 25 26 27 28 to a jury trial.” (Id.) Motions in limine should not be misused to deprive a party of due process in the name of efficiency. (Fatica v. Superior Court (2002) 99 Cal. App. 4th 350, 353.) B. Admissible Evidence Under Evidence Code section 351 all relevant evidence is admissible, unless it is otherwise excluded by statute. Evidence Code section 210 states, “Relevant evidence” means evidence having a tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code § 210.) “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that is 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.” (Evid. Code § 352.) However, this discretion granted to the trial court by Evidence Code section 352 “is not absolute and must be exercised reasonably in accord with the facts before the Court.” (Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 674 (citing Brainard v. Cotner (1976) 59 Cal.App.3d 790, 796; Kessler v. Gray (1978) 77 Cal. App. 3d 284, 291.) III. PLAINTIFFS PLED THEIR EMOTIONAL DISTRESS IN THE COMPLAINT Defendants allege in their Motion that Plaintiffs failed to allege recovery for pain and suffering damages. However, Plaintiffs’ Complaint states: “Wherefore, Plaintiffs pray for the following relief: 1. For emotional distress damages, including annoyance, inconvenience or discomfort resulting from the interference of their property right....” Plaintiffs did not exclusively plead “annoyance, inconvenience or discomfort” to the exclusion of pain and suffering relief. Indeed, the Judicial Council of California Civil Jury Instructions No. 3905A does not distinguish between “pain and suffering” and “emotional distress”. Rather, the instruction is titled “Physical Pain, Mental Suffering, and Emotional Distress”. Generally, the “courts have not attempted to draw distinctions between the elements of ‘pain’ on the one hand, and ‘suffering’ on the other; rather, the unitary concept of ‘pain and suffering’ has served as a convenient label under which a plaintiff may recover not only for physical pain but for fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror, or ordeal.” (Capelouto v. Kaiser Found. Hosps. 3 PLAINTIFFS’ OPPOSITION TO MOTION IN LIMINE NO. 3 15 16 17 18 20 21 22 23 24 25 26 27 28 (1972) 7 Cal.3d 889, 892-93.) Similarly, emotional distress includes mental suffering, which can be in the form of “nervousness, grief, anxiety, worry, shock, humiliation and indignity as well as physical pain.” (Crisci v. Sec. Ins. Co. of New Haven, Conn. (1967) 66 Cal.2d 425, 433.) As such, Plaintiffs inherently pled “pain and suffering” under the prayer for emotional distress damages. IV. PLAINTIFFS’ CAUSE OF ACTION FOR NEGLIGENCE ALLOWS PLAINTIFFS TO SUBMIT EVIDENCE OF PAIN AND SUFFERING In their Motion in Limine, Defendants ignore the fact that the Plaintiffs pled a cause of action for negligence. The Defendants only mention case law for pain and suffering as it relates to causes of action for nuisance and trespass. The case at hand is essentially a premises liability case. The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. Premises liability © “is grounded in the possession of the premises and the attendant right to control and manage the premises” ’; accordingly, © “mere possession with its attendant right to control conditions on the premises is a sufficient basis for the imposition of an affirmative duty to act.” (See Rowland v. Christian (1968) 69 Cal.2d 108). The duty arising from possession and control of property is adherence to the same standard of care that applies in negligence cases. (See Rowland v. Christian (1968) 69 Cal.2d 108; Kesner v. Superior Court (2016) 1 Cal.5th 1132.) The measure of damages in this state for the commission of a tort, as provided by statute, is that amount which will compensate the Plaintiff for all detriment sustained by him as the proximate result of the defendant's wrong, regardless of whether or not such detriment could have been anticipated by the defendant. (Civ. Code § 3333.) The Defendants in the instant case were negligent in creating the condition which caused noxious odors on the Plaintiffs’ property and then failing to promptly remedy the issue upon notification by the Plaintiffs. Public policy dictates that the Defendants do not simply get to walk away from their negligent actions by making repairs but rather they must compensate the Plaintiffs for all harm sustained as a result of these negligent actions — whether it be economic or noneconomic damages. 4 PLAINTIFFS” OPPOSITION TO MOTION IN LIMINE NO. 3 24 25 26 27 28 Counsel stipulated to exclude any evidence or argument relating to medical costs incurred by the Plaintiffs. However, the agreement did not extend to ignore the distress that Ms. Trider and her son experienced. Ms. Trider and her son suffered extreme anxiety and other symptoms as a result of having to regularly endure offensive fumes and eventually having to uproot themselves from their home for several months. The Defendants must fully compensate the Plaintiffs for their negligent actions. V. CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that the Court deny Defendants’ Motion in Limine No. 3 to exclude testimony, argument, or evidence relating to Plaintiffs’ pain and suffering. Dated: January 11, 2018 MAHONEY LAW GROUP, APC Anna R. Salusky Michael A. Swift Attorney for Plaintiffs, Andrea Knohl- Trider, an individual, and Grant Trider, by and through his guardian ad litem, Andrea Knohl-Trider 5 PLAINTIFFS” OPPOSITION TO MOTION IN LIMINE NO. 3