Valentin Provencio vs. Capistrano Unified School District

Motion in Limine

Cal. Super. - 4th Dist.September 30, 2016

Carpenter, 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Zuckerman & 27 Rowley LLP 28 Keith J Bruno, Esq. SBN 222765 ELECTRONICALLY FILED Christopher D Barnes, Esq. SBN 314256 Superior Court of California, CARPENTER, ZUCKERMAN & ROWLEY, LLP County of Orange 407 Bryant Circle, Suite F 04/20/2018 at 10:33:00 Au Ojai, CA 93023 Clerk of the Super : ; pe iar Court Tel: (805) 272-4001 By Jorge A Gomez, Deputy Clerk Fax: (805) 719-6858 Email: team3@czrlaw.com Martin L Waterman, Esq. SBN 49850 WATERMAN & HARRIS 12304 Santa Monica Boulevard, Penthouse Los Angeles CA 90025 Tel: (310) 553-3309 Fax: (310) 442-5507 Attorneys for Plaintiff, VALENTIN PROVENCIO SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE — CENTRAL JUSTICE CENTER CASE NO.: 30-2016-00878358 VALENTIN PROVENCIO, Plaintiff, PLAINTIFF VALENTIN PROVENCIO’S MOTION IN LIMINE NO. 3 TO EXCLUDE Vv. REFERENCE TO PLAINTIFEF’S PRIOR INJURIES CAPISTRANO UNIFIED SCHOOL DISTRICT; and DOES 1-25, Defendants. Complaint Filed: September 30, 2016 Trial Date: April 23, 2018 Dept.: C-34 TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD: Plaintiff VALENTIN PROVENCIO requests this Court issue an order precluding any party, counsel, and witness, including expert witnesses, from offering any evidence, exhibits, writings, references, testimony, or argument related to any prior injury of the Plaintiff. This motion is based on the grounds that any such evidence is not relevant. Additionally, the Court should exclude such evidence as its probative value, if any, is substantially outweighed 1 PLAINTIFF VALENTIN PROVENCIO’S MOTION IN LIMINE NO. 3 TO EXCLUDE REFERENCE TO PLAINTIFF’S PRIOR INJURIES Carpenter, Zuckerman & Rowley LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 by the probability that its admission will (a) necessitate an undue consumption of time or (b) create a substantial danger of undue prejudice. (Evidence Code § 352.) In the alternative, Plaintiff request an Evidence Code §§ 352 and 402 hearing on this matter. The motion will be based on this notice, on the attached memorandum of points and authorities, any exhibits and declarations submitted herewith, all pleadings, the records and files in this action and on such other evidence, both oral and documentary, as may be presented at the hearing. DATED: APRIL 20, 2018 CARPENTER, ZUCKERMAN & ROWLEY, LLP KEITH J BRUNO, ESQ. CHRISTOPER D BARNES, ESQ. Attorneys for Plaintiff, VALENTIN PROVENCIO 2 PLAINTIFF VALENTIN PROVENCIO’S MOTION IN LIMINE NO. 3 TO EXCLUDE REFERENCE TO PLAINTIFF’S PRIOR INJURIES Carpenter, Zuckerman & Rowley LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This matter arises out of a trip and fall accident that occurred at San Clemente High School in San Clemente, California. On March 2, 2016, Plaintiff VALENTIN PROVENCIO had just arrived at San Clemente High School for his son’s track meet, and was walking up the bleachers to set up his seat. As he turned left from the aisle into one of the rows, his right foot stepped into a hole from a missing plank, causing him to fall forward with his arms splayed out in front of him. Plaintiff struck the right side of the top of his head on the upper bleacher seat and landed with his full weight on his left shoulder. Further, the chair he was carrying jabbed into his stomach. II. MOTIONS IN LIMINE ARE AUTHORIZED BY EVIDENCE CODE SECTION 402(b) A motion in limine may be used to exclude evidence before it is offered. (See Cal. Evid.Code § 402(b).). The motion may also seek, as in this case, a rule forbidding the mention of, or any reference to such evidence. (Charbonneau v. Superior Court (1974) 42 Cal. App. 3d 505.). The purpose of such a motion is to bar prejudicial or inadmissible evidence before it comes to the jury's attention. As one court has stated, a motion in /imine may "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 Company (1978) 79 Cal. App.3d 325, 337; see also People v. Morris (1991) 53 Cal.3d 152, 188.). Moreover, motions in [imine permit more careful consideration of evidentiary issues than if the issues were presented during trial, help to minimize disruptions and sidebar conferences during trial, and foster efficiency of the trial process by resolving critical evidentiary issues prior to trial. (People v. Morris (1991) 53 Cal.3d 152, 188.). III. PLAINTIFF’S PRIOR INJURIES ARE NOT RELEVANT TO ANY MATERIAL FACT AT ISSUE IN THIS ACTION Evidence Code section 351 provides that only relevant evidence is admissible at trial. Evidence Code section 210 further provides that evidence is relevant only if it has a reasonable 3 PLAINTIFF VALENTIN PROVENCIO’S MOTION IN LIMINE NO. 3 TO EXCLUDE REFERENCE TO PLAINTIFF’S PRIOR INJURIES Carpenter, Zuckerman & Rowley LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 tendency to prove or disprove a fact that is of consequence to determination of the action. In the present case, Plaintiff tripped and fell on a hole in the bleacher’s on Defendant’s property, which was a dangerous condition of public property. Evidence of any prior injuries does not meet the requirements of Evidence Code section 201 because it does not reasonably tend to prove or disprove that Plaintiff was injured in this action. (Britt v. Superior Court, 20 Cal. 3d 844, 849, 143 Cal. Rptr. 695, 574 P.2d 766 (1978); Downing v. Barrett Mobile Home Transport, Inc., 38 Cal. App. 3d 519, 525, 113 Cal. Rptr. 277 (4th Dist. 1974)). Evidence of prior injuries does not prove or disprove anything in this action. The court’s have consistently held that a tortfeasor is not exonerated from liability if, by reason of some pre- existing condition, his victim is more susceptible to injury. (Rideau v. Los Angeles Transit Lines, 124 Cal. App. 2d 466, 471, 268 P.2d 772 (2d Dist. 1954)). Since it has no relevance to the determination of liability or damages, any reference to it whatsoever should be excluded. IV. THE PROBATIVE VALUE, IF ANY, OF PLAINTIFF’S PRIOR INJURIES IS OUTWEIGHED BY THE RISK THAT IT WILL CONFUSE AND MISLEAD THE JURY Evidence Code section 352 authorizes the court to exercise its discretion to exclude evidence if its probative value is substantially outweighed by the risk that it will confuse or mislead the jury. Exclusion of evidence under Evidence Code section 352 is proper where there is a risk that the evidence will be misinterpreted by the jury, or that the jury will misconstrue its purpose or effect. See A&M Produce Co. v. FMC Corp. (1982) 135 Cal.App.3d 473, 482-83; Huber, Hunt & Nichols, Inc. v. Moore (1977) 67 Cal. App.3d 278, 296-97. Where a substantial danger exists that the jury will use evidence for an improper purpose, it has been held an abuse of the court's discretion to allow even the limited admission of such evidence despite cautionary instructions as to proper purpose. Hrnjak v. Graymar, Inc. (1971) 4 Cal.3d 725, 732-34. To allow the evidence of prior injuries that are irrelevant to the subject incident will do nothing but confuse and mislead the jury. 11 11 /1/ 4 PLAINTIFF VALENTIN PROVENCIO’S MOTION IN LIMINE NO. 3 TO EXCLUDE REFERENCE TO PLAINTIFF’S PRIOR INJURIES Carpenter, Zuckerman & Rowley LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 V. THE PROBATIVE VALUE, IF ANY, OF PLAINTIFF'S PRIOR INJURIES IS OUTWEIGHED BY THE RISK THAT IT WILL CREATE UNDUE PREJUDICE Evidence Code section 352 authorizes the court, in its discretion, to exclude evidence if its probative value is substantially outweighed by the probability that its admission will create substantial danger of undue prejudice. Even if the proffered evidence is found to be otherwise admissible, the court has the duty to carefully weigh its probative value against its potential prejudicial effect, and exercise its discretion to admit or exclude the evidence. People v. Green (1980) 27 Cal.3d 1, 24-26. “Prejudicial evidence,” as referred to in Evidence Code section 352, has been defined as evidence that tends to evoke an emotional bias against an individual, and that has very little effect on the issues. See People v. Yu (1983) 143 Cal. App.3d 358, 377. If there is a substantial potential danger that the proffered evidence will have a prejudicial impact on the jury, it is an abuse of the trial court's discretion to admit the evidence, even for limited purposes and with cautionary instructions. Hrnjak v. Graymar, Inc. (1971) 4 Cal.3d 725, 732-34. The primary purpose of evidence of a prior condition is to create a prejudice or belief among the jury that Plaintiff was already injured and therefore not damaged as much by his fall. However, the law is clear that a defendant is still liable for an injury that exacerbates a pre- existing condition. Therefore, the potential prejudice severely outweighs the benefit of such testimony or evidence. VI. THE PROBATIVE VALUE, IF ANY, OF PLAINTIFF'S PRIOR INJJURIES IS OUTWEIGHED BY THE RISK THAT IT WILL NECESSITATE UNDUE CONSUMPTION OF TIME AND WASTE OF JUDICIAL RESOURCES Any probative value of Defendant’s proffered evidence is substantially outweighed by the probability that its admission will necessitate undue consumption of time and waste of judicial resources, and in particular with regard to cross examination and voir dire examination of potential jurors. If such evidence were to be permitted, it would be necessary to the protection of the Plaintiff’s rights that significant time, testimony, and argument be presented to establish that such prior injuries were irrelevant for the purposes of determining liability and damages. 11 5 PLAINTIFF VALENTIN PROVENCIO’S MOTION IN LIMINE NO. 3 TO EXCLUDE REFERENCE TO PLAINTIFF’S PRIOR INJURIES Carpenter, 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Zuckerman & 27 Rowley LLP 28 VII. CONCLUSION Should the Court not be willing to issue an order excluding such evidence, Plaintiff submits that this issue is particularly well-suited for a preliminary fact hearing pursuant to California Evidence Code sections 402 and 352. Moreover, the Defendant bears the burden in this matter to prove the foundational facts of this evidence before its introduction. As the Court knows, Evidence Code § 352 provides: 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. Case authority is clear that upon such a request, the court is required to hold an Evidence Code section 352 hearing. As the California Supreme Court explained People v. Leonard (1983) 34 Cal.3d 183, 187: “When a section 352 objection is raised, the record must affirmatively show that the trial judge did in fact weigh prejudice against probative value.” (Internal quotation and citation omitted.) Plaintiff contends that any Evidence Code section 352 hearing will find that any reference to Plaintiff’s financial status has no probative value and that it is substantially outweighed by the probability that such a reference will create undue prejudice, confuse the issues, and mislead the jury. For the foregoing reasons, the court should issue an order precluding any party, counsel, and witness, including expert witnesses, from offering any evidence, exhibits, writings, references, testimony, or argument related to Plaintiff’s prior injuries. DATED: APRIL 20, 2018 CARPENTER, ZUCKERMAN & ROWLEY, LLP By: KEITH J BRUNO, ESQ. CHRISTOPER D BARNES, ESQ. Attorneys for Plaintiff, VALENTIN PROVENCIO 6 PLAINTIFF VALENTIN PROVENCIO’S MOTION IN LIMINE NO. 3 TO EXCLUDE REFERENCE TO PLAINTIFF’S PRIOR INJURIES Carpenter, Zuckerman & Rowley LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 PLAINTIFF VALENTIN PROVENCIO’S MOTION IN LIMINE NO. 3 TO EXCLUDE REFERENCE TO PLAINTIFF’S PRIOR INJURIES Carpenter, Zuckerman & Rowley LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Ventura, State of California. I am over the age of 18 and not a party to the within action. My business address is 407 Bryant Circle, Suite F, Ojai, CA, 93023. On APRIL 20, 2018, I served the foregoing document(s) described as PLAINTIFF VALENTIN PROVENCIO’S MOTION IN LIMINE NO. 3 TO EXCLUDE REFERENCE TO PLAINTIFE’S PRIOR INJURIES on all interested parties in this action as set forth on the attached service list as follows: X BY MAIL: I placed a true copy of the above captioned documents in a sealed envelope addressed as shown above. I deposited such envelope in the mail at Ojai, California. The envelope was mailed with postage thereon fully prepaid. I am readily familiar with the business practice at my place of business for collection and processing of correspondence for mailing with the United States Postal Service. Correspondence so collected and processed is deposited with the United States Postal Service that same day in the ordinary course of business. BY OVERNIGHT MAIL: By sealing the envelope and placing it for collection and overnight delivery in a box regularly maintained by an overnight delivery service with delivery fees paid or provided for in accordance with ordinary business practices. BY PERSONAL SERVICE: I caused such envelope to be delivered by hand to counsel for defendants. BY ELECTRONIC TRANSFER/VIA FACSIMILE: I caused all of the pages of the above-entitled document(s) to be sent to the recipients noted above via electronic transfer (FAX) at the respective telephone numbers indicated above. BY ELECTRONIC SERVICE: Pursuant to the agreement of the parties, I caused said document(s) to be delivered via electronic mail to the addressee(s) set forth on the attached service list. STATE: I declare under penalty of perjury under the laws of the State of California that the above is true and correct. FEDERAL: I declare that I am employed in the office of the member of the bar of this court at whose direction the service was made. Executed on APRIL 20, 2018 at Ojai, California. COURTNEY os \ 8 PLAINTIFF VALENTIN PROVENCIO’S MOTION IN LIMINE NO. 3 TO EXCLUDE REFERENCE TO PLAINTIFF’S PRIOR INJURIES SERVICE LIST 2 Provencio v Capistrano Unified School District 30-2016-00878358-CU-PO-CJC 3 Martin L Waterman, Esq. Attorneys for Plaintiff, VALENTIN 4 | WATERMAN & HARRIS PROVENCIO 5 | 12304 Santa Monica Boulevard, 3" Floor Los Angeles CA 90025 6 | F:310.442.5507 E; 7 3 Rachel Geula, Esq. Attorneys for Defendant, CAPISTRANO WOODRUFF SPRADLIN & SMART UNIFIED SCHOOL DISTRICT 9 | 555 Anton Boulevard, Sutie 1200 Costa Mesa CA 92626 10 | F:714.415.1123 ii E: rgeula@wss-law.com 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Carpenter, Zuckerman & 27 Rowley LLP 28 9 PLAINTIFF VALENTIN PROVENCIO’S MOTION IN LIMINE NO. 3 TO EXCLUDE REFERENCE TO PLAINTIFF’S PRIOR INJURIES