Electronically FILED by Supeg OO 0 N N nn RA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 r Court of California, County of Los Angeles on 03/22/2019 02:57 PM Sherri R. Carter, Executive Officer/Clerk of Court, by M. Soto,Deputy Clerk Michael F. Ghozland (State Bar No. 223032) GHOZLAND LAW FIRM, PC michael@ghozlandlawfirm.com Jill D. Levy (State Bar No. 225408) jill@ghozlandlawfirm.com 626 Wilshire Blvd, Suite 1170 Los Angeles, California 90017 Telephone: (213) 334-4570 Facsimile: (213) 334-4569 Attorneys for Plaintiff, ARVIND DAYA SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES- SPRING STREET ARVIND DAYA, an individual, Case No. BC659617 Hon. Laura A. Seigle Plaintiff, Dept. 4B PLAINTIFF’S MOTION IN LIMINE NO. TWO TO PRECLUDE ANY EVIDENCE THAT PLAINTIFFS ATTORNEY RECOMMENDED AND/OR REFERRED PLAINTIFF TO ANY PROVIDER FOR CARE, TREATMENT AND EXAMINATION; DECLARATION OF JILL D. LEVY IN SUPPORT; AND [PROPOSED] ORDER Vv. GREGORIO NIETO, an individual and DOES 1-10, INCLUSIVE Defendants. Complaint Filed: April 28,2017 FSC Date: April 5, 2019 Trial Date: April 9,2019 N a m ’ N r N a ww e N a N a ’ S m S w N u N t N u N u wn N u t N a t N a e “ a s t TO THIS HONORABLE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD: 1117 1 PLAINTIFF'S MOTION IN LIMINE NUMBER TWO OO 0 NN S N Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLEASE TAKE NOTICE that on April 9, 2019, at 8:30 a.m., or as soon as convenient for this Court, in department 4B of the above entitled court, Plaintiff, ARVIND DAYA (“Plaintiff”) will move this Court for an Order ir limine to: 1. Prohibit the attorneys for all Parties from offering any evidence and prohibiting all attorneys and witnesses from making any reference, comments or assertions in the presence of the jurors or prospective jurors that an attorney recommended or referred Plaintiff to any medical providers for care, treatment and examination; Require the attorneys for all Parties to instruct their witnesses of the Court's Exclusionary Order on this Motion, or, in the alternative; and Require the attorneys for the Parties, prior to making any references, comments or assertions, concerning the medical recommendation or referral 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 or admissibility thereof. This Motion is brought pursuant to California Evidence Code §350, §352 on the grounds that the introduction during trial of any evidence regarding an attorney recommending or referring Plaintiff to any medical providers for care, treatment and examination would be highly prejudicial, create a substantial danger of misleading the jury, causing undue prejudice to Plaintiff, and unnecessarily delaying the progress of trial. 1117 /11 111 ay 111 2 PLAINTIFF'S MOTION IN LIMINE NUMBER TWO wn se L N NO 0 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This Motion shall also be based on this Notice, on the attached Memorandum of Points and Authorities, the Declaration of Jill D. Levy, Esq., any exhibits attached thereto, the pleadings and papers on file with this Court, and on such other evidence as may be introduced at the time of the hearing. DATED: March 21, 2019 3 GHOZLAND LAW FIRM Chup AEL F. GHOZLAND J i D.LEVY Attorney for Plaintiff, ARVIND DAYA PLAINTIFF’S MOTION IN LIMINE NUMBER TWO OO 00 ~~ O N n a WwW N e N O N N N N N N N O N me e m ee p d e t p m e m e k e s Ww ~~ O N Wn BR W N = D D N Y N R W N , OO MEMORANDUM OF POINTS AND AUTHORITIES LL INTRODUCTION. This action arises out of a motor vehicle accident that occurred on May 4, 2016. At that time, the vehicle being operated by Plaintiff, ARVIND DAYA (“Plaintiff”) was rear- ended by the vehicle being operated by Defendant, GREGORIO NIETO (“Defendant”) while traveling on the 210 freeway. As a result, Plaintiff suffered personal injuries primarily involving the neck and head and received medical care consisting of, inter alia, chiropractic treatment, pain management, MRIs and cervical facet blocks. Plaintiff anticipates that defense counsel will raise the issue of whether Plaintiff was referred to his health care provider(s) by his attorneys to paint him or his attorneys as somehow disreputable. The instant motion seeks to preclude Defendant from providing evidence, testimony or argument that Plaintiff, was referred to health care provider(s) by his attorneys. Any mention of this issue is irrelevant, prejudicial, and improper character evidence. Further, any communications between Plaintiff and his attorneys are privileged. Accordingly, evidence on the issue should be excluded. II. WHETHER PLAINTIFF WAS REFERRED TO MEDICAL PROVIDER(S) BY HIS ATTORNEYS IS IRRELEVANT. California Evidence Code §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.” (California Evidence Code §210; People v. Kelly (1992) 1 Cal.4th 495, 523; People v. Haston (1968) 69 Cal.2d 233, 245). Here, any mention that Plaintiff was referred to medical provider(s) by his attorneys is irrelevant. The only issues in this case (aside from liability) are Plaintiff's injuries and subsequent treatment. There is no allegation that the treatments that Plaintiff 4 PLAINTIFF'S MOTION IN LIMINE NUMBER TWO O O 0 S N n s N O N O R N N N N N N N e e e m e m e a p m ee e m e e G e ~ N S N n R k W N = O Y e N Y E W N OO received was below the standard of care, somehow implicating an attorney or a doctor in a scam. Attorney referrals do mot have a “tendency to prove or disprove any disputed fact that is of consequence to the determination of the action.” Any mention of this would only be made to inflame the prejudices of the jury. Accordingly, the Court should preclude it on that basis alone. III. TESTIMONY REGARDING ATTORNEY REFERRALS WOULD BE PREJUDICIAL, TIME CONSUMING, AND MISLEADING TO THE TRIER OF FACT. California Evidence Code §352 states the Court may exclude evidence if its probative value is substantially outweighed by the probability its admission will necessitate undue consumption of time, create substantial danger of undue prejudice, confuse the issues, or mislead the jury. Here, there is zero probative value in mentioning that Plaintiff was referred to doctor(s) by an attorney. This is not a medical or legal malpractice case. Further, mention of this issue would open Pandora’s Box and require Plaintiff to explain why he received referrals through his attorneys, requiring him to divulge privileged conversations, discuss liability and health-insurance, and violate the collateral source rule. (See, California Evidence Code §950-962 et seq.; CACI 105). Moreover, any mention of this issue would solely be made to slander Plaintiff and his counsel. Defense counsel’s only tactic would be to make it seem like Plaintiff and his counsel are somehow disreputable. It would be time consuming, prejudicial, and misleading to the jury. Furthermore, it would seriously jeopardize the jury’s ability to fairly, objectively, and honestly evaluate the evidence without being improperly swayed by an irrelevant issue. Thus, it should be excluded entirely. I 111 [117 S PLAINTIFF'S MOTION IN LIMINE NUMBER TWO OO 00 NN A N nn se W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. A COURT MAY MAINTAIN A PRE-TRIAL MOTION TO EXCLUDE EVIDENCE AND TO DETERMINE AN ISSUE OUTSIDE OF THE PRESENCE OF THE JURY. The court has the authority, pursuant to California Evidence Code §§402, 403, 350 to make an advance ruling excluding evidence before it is exposed in the presence of the jury. Additionally, California Evidence Code §352 gives the trial Court the discretion to exclude evidence that is irrelevant, improper, and without any foundation. THIS COURT SHOULD CONDUCT AN EVIDENCE CODE §402/403 HEARING BEFORE PERMITTING ANY EVIDENCE OR TESTIMONY REFERENCE THE AVAILABILTY OF HEALTH COVERAGE TO PLAINTIFF FOLLOWING THE INCIDENT. Evidence or testimony offered by Defendant and his experts regarding attorney- referred medical treatment is prejudicial, irrelevant, and expressly prohibited. Helfend v. So. Cal. Rapid Transit Dist. (1970) 2 Cal.3d 1, 6. This Court should refuse to permit any argument, questions or testimony on these issues by any witness. However, if this Court is inclined to allow any such argument, questions or testimony, at a minimum, this Court should conduct a hearing pursuant to Evidence Code §402 and/or §403. 111 111 111 111 11] 111 111 111 6 PLAINTIFF'S MOTION IN LIMINE NUMBER TWO VI. CONCLUSION. Based on the foregoing, Plaintiff respectfully requests that the Court preclude Defendant and/or his attorneys and witnesses from referencing or referring to any NO 0 N N O N Un R W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 attorney-referred medical treatment received by Plaintiff at time of trial. DATED: March Zl , 2019 7 GHOZLAND LAW FIRM ICHAEL F.GHOZLAND JILL D. LEVY Attorney for Plaintiff, AR DAYA PLAINTIFF'S MOTION IN LIMINE NUMBER TWO O O N N N Wn Ae W N N N N N ND N N N N mm m m e m e e e d ed mt pe p d pe 0 N N Wn BE W N = O D N RE L N -= OO DECLARATION OF JILL D. LEVY, ESQ. I, Jill D. Levy, declare as follows: L. I am an attorney duly licensed to practice before all the courts in the State of California and am an attorney at The Ghozland Law Firm, and counsel of record for Plaintiff, ARVIND DAYA. I make this declaration in support of Plaintiff’s Motion in Limine Number Two. 1 have personal knowledge of the facts stated herein, and if called as a witness, I could and would competently testify thereto. 2, This motion in limine seeks to preclude evidence or testimony offered by Defendant and his experts regarding whether attorney(s) recommended or referred Plaintiff to any medical providers for care, treatment and examination is prejudicial and irrelevant. 3. This motion in limine is brought on the grounds that the introduction during trial of any evidence regarding an attorney recommending or referring Plaintiff to any medical providers for care, treatment and examination would be highly prejudicial, create a substantial danger of misleading the jury, causing undue prejudice to Plaintiff, and would unnecessarily delay the progress of trial. Accordingly, this Court should refuse to permit any argument, questions or testimony on these issues by any witness. 1117 111 111 111 1117 1117 111 111 111 111 8 PLAINTIFF'S MOTION IN LIMINE NUMBER TWO NO 0 N N N nn BAe W N N O N N N N N N N O N e m e m ed t pe d pe e p m pe d p e 0 NN O N nn Re W N = O O N Y dA Ww NN = Oo 4. In accordance with Los Angeles County Superior Court Local Rules, Rule 3.57, on March 5, 2019, I sent defense counsel a meet-and-confer letter regarding the herein motion in limine. Attached hereto as Exhibit “A” is a true and correct coy of the meet-and-confer letter, dated March 5, 2019. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 21 day of March 2019, at Los Angeles, California. Our” [Sg JILL D. LEVY 9 PLAINTIFF'S MOTION IN LIMINE NUMBER TWO EXHIBIT A Jill D. Levy Jill@ghozlandlawfirm.com March 5. 2019 Ariella Perry, Esq. Michael Maguire & Associates 611 Anton Blvd., Suite 900 Costa Mesa, CA 92626 Re Daya v. Nieto LASC Case No: BC659617 Dear Ms. Perry, GHOZLAND == LAW FIRM GLE Please be advised that Plaintiff intends to file the following Motions in Limine. i To Preclude reference to insurance reimbursement and amount lien providers might accept for past and future medical services; o w Providers on Other Patients’ Acccounts. Should you wish to stipulate to any of the following, please contact me. If you have any questions, please do not hesitate to contact me. Very truly yours, ILL D. LEVY Encl. To Preclude reference to attorney-referred treatment; To Preclude Evidence of Plaintiff's Criminal History; and To Preclude Evidence of, or Reference to, Reduced Amounts Accepted by Plaintiff” Medical 626 Wilshire Boulevard, Ste. 1170, Los Angeles, CA 90017 P: 213-334-4570 = F: 213-334-4569 G H O Z L A N D L A W F I R M 62 6 Wi ls hi re Bl vd . St e. 11 70 Lo s An ge le s, CA 90 01 7 Ww SS OO 0 NN A PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES: I, Diane Canton, am employed in the aforesaid county, State of California; I am over the age of 18 years and not a party to the within action; my business address is 626 Wilshire Blvd. Suite 1170, Los Angeles, California 90017. On March 22, 2019, I served the foregoing PLAINTIFF'S MOTION IN LIMINE NO. TWO TO PRECLUDE ANY EVIDENCE THAT PLAINTIFF'S ATTONREY RECORMMENDED AND/OR REFERRED PLAINTIFF TO ANY PROVIDER FOR CARE, TREATMENT AND EXAMINATION; DECLARATION OF JILL D. LEVY IN SUPPORT; AND [PROPOSED] ORDER, on the parties in this action by placing a true copy thereof, enclosed in a sealed envelope, addressed as follows: Ariella E. Perry, Esq. MICHAEL MAGUIRE & ASSOCIATES 611 Anton Boulevard, Suite 900 Costa Mesa, CA 92626 Tel: (714) 435-7500 Fax: (855) 396-4486 Email: cali-law-costa-mesa-clc@statefarm.com Attorney for Defendant, Gregorio Nieto [ X] (BY MAIL) I placed such envelope with postage thereon fully paid in the United States mail at Los Angeles, California. 1 am “readily familiar” with this firm’s practice of collecting and processing correspondence for mailing. It is deposited with U.S. Postal Service on that same day in the ordinary course of business. | am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than | day after date of deposit for mailing in affidavit. [ 1] (BY PERSONAL SERVICE) I personally delivered said envelope to the office of the person and address identified above. [ X] (BY ELECTRONIC SERVICE) I served the above documents to the email listed on the service caption above. A true and correct copy of transmittal will be produced if requested by any party or the court. [X] (STATE) I certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is true and correct. [ 1] (FEDERAL) I declare (or certify, verify or state) under penalty of perjury that the foregoing is true and correct, and that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on March 22, 2019, at Los Angeles, California DIANE CAN PROOF OF SERVICE