Jack Orman vs. Las Palmas Condominiums

Motion in Limine

Cal. Super. - 4th Dist.November 22, 2017

B & D L A W G R O U P , A P L C . 1 0 7 0 0 S A N T A M O N I C A B O U L E V A R D , S U I T E 2 0 0 L o s A N G E L E S , C A L I F O R N I A 9 0 0 2 5 (3 10 ) 42 4- 52 52 A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Daniel D. Geoulla, Esq. (SBN: 255800) Michael B. Geoola, Esq. (SBN: 235365) Meylin P. Alfaro, Esq. (SBN: 315177) B & D LAW GROUP, APLC. 10700 Santa Monica Blvd., Suite 200 Los Angeles, CA 90025 Telephone: (310) 424-5252 Facsimile: (310) 492-5855 Attorneys for Plaintiff, JACK L. ORMAN SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE CENTRAL JUSTICE CENTER (CJC) JACK LEVI ORMAN, Plaintiff, vs. LAS PALMAS MISSION VIEJO CONDOMINUM ASSOCIATION,et. al. Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 30-2017-00957514-CU-PO-CJC Judge: Hon. Ronald L. Bauer PLAINTIFF'S MOTION IN LIMINE NO. 7 TO PRECLUDE EVIDENCE AND ARGUMENT THAT PLAINTIFF FAILED TO MITIGATE HIS DAMAGES BY TREATING ON LIEN; MEMORANDUM OF POINTS & AUTHORITIES; DECLARATION OF MEYLIN P. ALFARO, ESQ. TRIAL: Dept. CX103 Time: 8:30 AM Date: January 7, 2019 TO THE HONORABLE COURT, ALL PARTIES, AND THEIR ATTORNEYS: PLEASE TAKE NOTICE that Plaintiff JACK ORMAN will and hereby does move this Court for issuance of an order precluding any and all evidence, testimony, references, insinuations, suggestions, accusations, argument, or any mention of any kind that the Plaintiff failed to mitigate his damages by treating on lien; An order precluding any and all evidence, testimony, references, insinuations, suggestions, accusations, argument, or any mention of any kind that the Plaintiffs failed to mitigate his damages by treating on lien; PLAINTIFF'S MOTION IN LIMINE NO. 7 B & D L A W G R O U P , A P L C . 1 0 7 0 0 S A N T A M O N I C A B O U L E V A R D , S U I T E 2 0 0 L o s A N G E L E S , C A L I F O R N I A 9 0 0 2 5 (3 10 ) 42 4- 52 52 A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 An Order precluding any and all evidence, testimony, references, insinuations, suggestions, accusations, argument, or any mention of any kind that the Plaintiffs failed to mitigate their damages by nottreating through their health insurance. An Order requiring the attorneys for all parties to instruct their witnesses of the Court's exclusionary Orders on this Motion; An Order that no attorney, party, or witness shall make any reference to the filing of this Motion, whether it be granted or denied. This Motion is made on the following grounds: Plaintiffs anticipate that the Defense Counsel will argue that the Plaintiffs’ damages should be limited for an alleged "failure to mitigate" for not seeking treatment through his health insurance, and instead treating on lien for injuries that Defendants caused. The Plaintiff anticipates that Defendants will argue or imply that Plaintiff has the duty to mitigate the cost of his medical care. “Failure to mitigate is typically alleged where plaintiff foregoes recommended medical treatment or otherwise fails to follow a competent physician's advice." Haning et al., Cal. Practice Guide: Personal Injury (The Rutter Group 2015) {3:248. This means that mitigation refers to whether the plaintiffs sought care and followed medical recommendations. It does not refer to whether the plaintiffs shopped around to find a cheaper doctor. 2. Any mention of insurance at the time oftrial is irrelevant and strictly prohibited. CACI Jury Instructions are directly on point: “You must not consider whether any of the parties in this case have insurance. The presence or absence of insurance is totally irrelevant. You must decide this case based only on the law and the evidence.” CACI No. 105. 3. The Defendants will not be prejudiced at all if the court were to preclude their nnlawyers from making reference to "liens," "private insurance," or any other collateral source, or that the Plaintiffs failed to mitigate his damages by treating on a lien, shows the true intent behind their desire to use these words in front of the jury. 4. The above-described order is necessary to ensure that Plaintiffs will be accorded a fair trial and that the trial record in this case will not be tainted with reversible error prejudicial to 2 PLAINTIFF'S MOTION IN LIMINE NO. 7 B & D L A W G R O U P , A P L C . 1 0 7 0 0 S A N T A M O N I C A B O U L E V A R D , S U I T E 2 0 0 L o s A N G E L E S , C A L I F O R N I A 9 0 0 2 5 (3 10 ) 42 4- 52 52 A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs. This Motion is based on this Notice of Motion, the attached Memorandum of Points and Authorities, the Declaration of Meylin P. Alfaro concurrently herewith, all of the pleadings, files, and records in this proceeding, all other matters of which the Court may take judicial notice, and any argument or evidence that may be presented to or considered by the Court prior to its ruling. DATED: December 28, 2018 B&D INJURY LAW GROUP, APLC By: 7% Daniel D. Geoulla, Esq. Michael B. Geoola, Esq. Meylin P. Alfaro, Esq. Attorneys for Plaintiff, JACK ORMAN 3 PLAINTIFF'S MOTION IN LIMINE NO. 7 B & D L A W G R O U P , A P L C . 1 0 7 0 0 S A N T A M O N I C A B O U L E V A R D , S U I T E 2 0 0 L o s A N G E L E S , C A L I F O R N I A 9 0 0 2 5 (3 10 ) 42 4- 52 52 A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS & AUTHORITIES I. INTRODUCTION This action is the result of a premises liability incident that occurred on November 27, 2015, at 23302 La Mar, Mission Viejo, California. Defendant owned, operated and maintained the premises wherein the incident occurred. At the time of the incident, Mr. Orman was on the property after having visited a tenant on the premises when Mr. Orman’s foot caught an exposed jagged metal between two concrete slabs located on a pathway on the premises. As a result, Mr. Orman sustained a severe laceration to his right foot which required surgery and additional medical treatment. Mr. Orman has undergone extensive medical care and treatment since the time of the incident. Much of Mr. Ormans’s medical treatment was performed on a lien and remains outstanding. Whether medical providers might accept less than the amount owed for the medical treatment at present is speculative. Furthermore, Mr.Orman owes the billed amounts in full. As such, Mr.Orman makes this motion to limit any opinion of what a medical provider might accept as payment for that medical treatment. II. LEGAL ARGUMENT A. Legal Standard for Motions In Limine A motion in limine may be used to exclude evidence before it is offered. See 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, testimony or opinion. Charbonneau v. Sup. Ct. (1974) 42 Cal. App. 3d 505. The purpose of such a motion is to prevent prejudicial or inadmissible evidence before it comes to the jury's attention. As one court has stated, a motion in limine 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 Co. (1978) 79 Cal. App.3d 325, 337; see also People v. Morris (1991) 53 Cal.3d 152, 188. Finally, motions in limine permit more careful consideration of evidentiary issues than if the issues were presented during trial, help to minimize disruptions and sidebar conferences 2 PLAINTIFF'S MOTION IN LIMINE NO. 7 B & D L A W G R O U P , A P L C . 1 0 7 0 0 S A N T A M O N I C A B O U L E V A R D , S U I T E 2 0 0 L o s A N G E L E S , C A L I F O R N I A 9 0 0 2 5 (3 10 ) 42 4- 52 52 A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. It is therefore appropriate for Plaintiffs to seek an in limine order. B. Defense Counsel May Not Be Permitted To Misstate The Law. The Plaintiffs anticipates that Defendants will allege that Plaintiff failed to mitigate his damages by not treating under his private health insurance and instead treating on lien for injuries that Defendants caused. This would be a misstatement of the law and improper. See Gotcher v. Metcalf (1970) 6 Cal.App.3d 96, 100 (holding that attorneys shall not misstate the law in argument). As the Rutter Guide states, "[f]ailure to mitigate is typically alleged where plaintiff foregoes recommended medical treatment or otherwise fails to follow a competent physician's advice." Haning et al., Cal. Practice Guide: Personal Injury (The Rutter Group 2015) 43:248. Thus, mitigation refers to whether the plaintiffs sought and followed medical care. It does not refer to whether the plaintiffs shopped around to find a cheaper doctor or medical insurance after being severely injured by a negligent defendant. C. Evidence Or Testimony Of The Availability Of Insurance or Government Assisted Healthcare Is Irrelevant And Must Be Excluded. Evidence Code Section 350 provides that only relevant evidence is admissible. Relevant evidence is defined as “having any tendency to prove or disprove any disputed fact that is of consequence to the determination of the action.” Cal. Evid. Code §210; People v. Kelly (1992) 1 Cal.4th 495, 523; People v. Haston (1968) 69 Cal.2d 233, 245 (stating that a court should consider severing relevant from irrelevant portions of evidence to protect against undue prejudice). Any mention of insurance at the time oftrial is irrelevant and strictly prohibited. CACI Jury Instructions are directly on point: “You must not consider whether any of the parties in this case has insurance. The presence or absence of insurance is totally irrelevant. You must decide this case based only on the law and the evidence.” CACI No. 105. Howell held that plaintiffs may only introduce the amounts owed and the amounts paid by insurers, without 3 PLAINTIFF'S MOTION IN LIMINE NO. 7 B & D L A W G R O U P , A P L C . 1 0 7 0 0 S A N T A M O N I C A B O U L E V A R D , S U I T E 2 0 0 L o s A N G E L E S , C A L I F O R N I A 9 0 0 2 5 (3 10 ) 42 4- 52 52 A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 making any reference or actually using the word “insurance.” See Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541. Plaintiff sought out treatment on a lien because he was not satisfied with the health providers he was required to see through his private health insurance. D. Defendants Cannot Identify Any Undue Prejudice. The Defendants will not be able to identify any prejudice if the court were to preclude n ntheir lawyers from making reference to "liens," "private insurance, or any other collateral source, and that the Plaintiff failed to mitigate her damages by treating on a lien. The true intent for using these words is to polarize the jury and to prejudice Plaintiff’s right to a fair trial. The Defendants will likely use such evidence and arguments to demonize Plaintiff by insinuating, without proof that they and his counsel are intentionally driving up the cost of litigation to obtain a higher award at trial. Conversely, neither party is prejudiced by requiring that we stick to the term "reasonable value," and precluding Defendants from making the improper, speculative and incorrect argument that Plaintiff failed to mitigate his damages by treating on lien. III. CONCLUSION Based on the foregoing, Plaintiff respectfully requests that the Court grant Plaintiff's Motion and issue the requested orders therein. DATED: December 28, 2018 B&D INJURY LAW GROUP, APLC By: 4d Daniel D. Geoulla, Esq. Meylin P. Alfaro, Esq. ATTORNEYS FOR PLAINTIFFS JACK L. ORMAN 4 PLAINTIFF'S MOTION IN LIMINE NO. 7 B & D L A W G R O U P , A P L C . 1 0 7 0 0 S A N T A M O N I C A B O U L E V A R D , S U I T E 2 0 0 L o s A N G E L E S , C A L I F O R N I A 9 0 0 2 5 (3 10 ) 42 4- 52 52 A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF MEYLIN P. ALFARO, ESQ. I, Meylin P. Alfaro, Esq., declare as follows: I. IT am an attorney duly admitted to practice before this Court. I am an associate with B&D Injury Law Group, APLC, attorneys of record for Plaintiffs JACK L. ORMAN. I have personal knowledge of the facts set forth herein, except as to those stated on information and belief and, as to those, I am informed and believe them to be true. If called as a witness, I could and would competently testify to the matters stated herein. 2. Plaintiffs’ counsel has met and conferred with defense counsel with respect to the substance of this motion. 3. I am of the belief that, if this motion is not granted, Plaintiffs will suffer irreparable harm and prejudice to his substantial rights and right to a fairtrial by jury. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on this 28th day of December, 2018, at Los Angeles, California. / ) ALA 7, ye [ Ly N \_)By: Meylin Alfaro, Esq. 5 PLAINTIFF'S MOTION IN LIMINE NO. 7 B & D L A W G R O U P , A P L C . 1 0 7 0 0 S A N T A M O N I C A B O U L E V A R D , S U I T E 2 0 0 L o s A N G E L E S , C A L I F O R N I A 9 0 0 2 5 (3 10 ) 42 4- 52 52 A N n n W N 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 ) ) ss COUNTY OF LOS ANGELES ) I am employed in the county of Los Angeles, state of California. I am over the age of 18 and not a party to the within action; my business address is 10700 Santa Monica Blvd., Suite 200, Los Angeles, CA 90025. On December 28, 2018, I served the foregoing documents described: PLAINTIFF'S MOTION IN LIMINE NO. 7 TO PRECLUDE EVIDENCE AND ARGUMENT THAT PLAINTIFF FAILED TO MITIGATE HIS DAMAGES BY TREATING ON LIEN; MEMORANDUM OF POINTS & AUTHORITIES; DECLARATION OF MEYLIN P. ALFARO, ESQ. on the interested parties in this action by placing a true and correct copy thereof in a sealed envelope addressed as follows: J. Dean Rice, Esq. HARTSUYKER STRATMAN & WILLIAMS-ABREGO 2677 N. Main Street, Suite 200 Santa Ana, CA 92705 __X__ (BY MAIL) I caused such envelope to be deposited in the mail at Los Angeles County, California. The envelope was mailed with postage thereon fully prepaid. __X__ (BY FIRM PRACTICE) I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on the same day in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postage cancellation date or postage meter date is more than one day after date of deposit for mailing in the affidavit. (BY FACSIMILE)I caused all of the pages of the above entitled documents to be sent to recipients noted above via electronic transfer (FAX) at the respective telephone numbers indicated above. _X__ (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 a member of the bar of this court at whose direction this service was made. Executed on the 28th day of December 2018 at Los Angeles, California. Meylin P. Alfaro, Esq. 6 PLAINTIFF'S MOTION IN LIMINE NO. 7