Plaintiff Evan Pyles Response To Defendants Proposals And Objections To The Tentative Statement of Decision

Response

Cal. Super. - 1st Dist.October 24, 2016

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Nikolaus W. Reed, Esq. (SBN 259951) Law Office of Nikolaus W. Reed 135 10th Street San Francisco, CA 94103 Tel: 415/940-7766 Fax: 415/940-7706 Email: Nik@nwrlaw.com Attorney for Plaintiffs, EVAN PYLE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION EVAN PYLE Case No.: CGC-16-555000 Plaintiff. PLAINTIFF EVAN PYLE’S ’ RESPONSE TO DEFENDANTS’ vs PROPOSALS AND OBJECTIONS TO ’ THE TENTATIVE STATEMENT OF JONES METROPOLITAN DECISION ENTERTAINMENT CORP; 620 JONES Before the Honorable Charles Haines, STREET; GAYLORD ASSOCIATES, LP; Dept. 505 RUSSELL B. FLYNN INVESTMENTS CO., LLC; 620 JONES STREET LIMITED Trial Dates: Jan. 29-30, Feb. 8, 2018 PARTNERSHIP; ALVARO CARVAJAL; DOES 1 to 50, Defendants. Plaintiff Evan Pyle submits the following response, proposals, and objectionsto Defendants’ Proposals and Objectionsto the Court’s February 13, 2018 Tentative Statement of Decision. -1- PLAINTIFF EVAN PYLE’S RESPONSE, PROPOSALS, AND OBJECTIONS TO DEFENDANTS’ PROPOSALS AND OBJECTIONS TO THE TENTATIVE STATEMENT OF DECISION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 RESPONSE, PROPOSALS, AND OBJECTIONS RESPONSE, PROPOSAL, AND OBJECTION TO DEFENDANT’S OBJECTION/PROPOSAL NO. 1. No objection. RESPONSE, PROPOSAL, AND OBJECTION TO DEFENDANT'S OBJECTION/PROPOSAL NO.2. Plaintiff objects to Defendants’ characterization of the facts that Plaintiff does not have a permanent injury and that the future damages determination is notjustified. Dr. Shin testified that residual pain was to be expected for Plaintiff, that Plaintiff would continue to suffer without further treatment, and injections may benefit Plaintiff, but may only offer temporaryrelief. Dr. Shin stated that absent further treatment, Plaintiffs complaintsof pain would continue. (Shin. At p.24) Even if he had the treatment, there is not guarantee it would be a permanent solution. Plaintiff is not required by law to undergo injections, which have their own risks,for an uncertain result. It was undisputed that Plaintiff had never experienced a prior knee injury before the incident in question. Please see attached portions of | the transcript of Dr. Shin. Plaintiff testified to his ongoing pain while walking, kneeling, hitting his knee against an object, during sexual intercourse, while surfing, and during cold weather. Given the medical testimony, Plaintiff’s testimony, that Plaintiff's livelihood requires him to kneel and bend frequently, and that squatting and bending one’s knee is an everyday activity, sufficient evidence S20. PLAINTIFF EVAN PYLE’S RESPONSE, PROPOSALS, AND OBJECTIONS TO DEFENDANTS’ PROPOSALS AND OBJECTIONS TO THE TENTATIVE STATEMENT OF DECISION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 was presented to support a factual finding of a permanent injury and substantial future general damages as a result of the incident on January 15, 2016. Dr. Haras testified that Plaintiff experienced pain upon doing squats that Dr. Haras wasn’t sure if the pain would ever go away. (Transcript page 313). Dr. Haras furthertestified that his experience included treating patients with patella fractures and that based on his experience, these patients often have pains that do not go away. RESPONSE, PROPOSAL, AND OBJECTION TO DEFENDANT’S OBJECTION/PROPOSAL NO. 3. Defendant’s calculation omits the Golden Gate Urgent Care past medicals which was either $272 or $453, either of which results in damagesof at least $3,300. RESPONSE, PROPOSAL, AND OBJECTION TO DEFENDANT’S OBJECTION/PROPOSAL NO.4. Plaintiff declines to comment. RESPONSE, PROPOSAL, AND OBJECTION TO DEFENDANT’S OBJECTION/PROPOSAL NO. 5. Plaintiff will agree to waive the future medical specials of $300 if the future general damages finding is not modified. Lack of future medical treatment compensation makesit even more certain that Plaintiff will continue to sustain general damages for the remainder ofhislife. -3- PLAINTIFF EVAN PYLE’S RESPONSE, PROPOSALS, AND OBJECTIONS TO DEFENDANTS’ PROPOSALS AND OBJECTIONS TO THE TENTATIVE STATEMENT OF DECISION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 RESPONSE, PROPOSAL, AND OBJECTION TO DEFENDANT’S OBJECTION/PROPOSAL NO. 6. Plaintiff objects to Defendants’ characterization of Vandenberg’s testimony. Vandenberg testified to seeing the motion of the Defendant hitting Plaintiff. This taken along with the photos of the numerousinjuries to Plaintiff's face and Plaintiff's testimony that he was punched is sufficient evidence to draw the conclusion that the male wasin fact hitting or punching the Plaintiff. RESPONSE, PROPOSAL, AND OBJECTION TO DEFENDANT’S OBJECTION/PROPOSAL NO. 7. Plaintiff agrees with the Court’s calculation. RESPONSE, PROPOSAL, AND OBJECTION TO DEFENDANT’S OBJECTION/PROPOSAL NO.8. Plaintiff objects to the Defendants’ characterization that the Court’s award of $275,000.00 in past noneconomic damages shocksthe conscience and is based on passion or prejudice. Plaintiff requests that the Court uphold the award of $275,000.00 in past noneconomic damages. Cal. Civ. Procedure Section 580 states that, “the Court may grant the plaintiff any relief consistent with the case made by the complaint and embraced within the issue...” Defendants omitted from their citation that “the amount of damages is a fact question, reservedfor the Court who sees and hearsthe witnesses and frequently sees the injury and impairmentthat has resulted, which means that all presumptionsare in favor of the decision of the trial Court.” (Seffert v. Los Angeles Transit Lines, (1961) 56 Cal.2d 498). “There are no -4- PLAINTIFF EVAN PYLE’S RESPONSE, PROPOSALS, AND OBJECTIONS TO DEFENDANTS’ PROPOSALS AND OBJECTIONS TO THE TENTATIVE STATEMENT OF DECISION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 fixedor absolute standards by which an appellate court can measure in monetaryterms the extent of the damages suffered by plaintiff as a result of defendant's wrongful act,its duty being to upholdthe jury and trial judge whenever possible. The amount to be awarded is a matter on which there legitimately may be a wide difference of opinion, and in considering a contention that the damages are excessive the appellate court must determine every conflict in respondent’s favor and give him the benefit of every inference reasonably to be drawn fromthe record. Basically, the question that should be decided bythe appellate courts is whether or not the verdict is so out ofline with reasonthat it shocks the conscience and reasonably implies that the verdict must have been the result of passion and prejudice.” (Id. At508.) In Rufo v. Simpson, the Court noted that the amount of damages which may compensate the loss of comfort and society is within that of the jury. (Rufo v. Simpson, (2001) 86 Cal.App. 4" 573) «“There is no fixed standard by which the appellate court can determine whether the jury's award for this intangible loss is excessive. Appellate courts defer to the jury's discretionin the absence of some other factorin the record, such asinflammatory evidence, misleading instructions or improper argument by counsel, that would suggest the jury relied upon improper considerations. Appellate courts will interfere withthe jury’s determination only when the award is so disproportionate to the injuries that it shocks the conscience and virtually compels the conclusion the award is attributable to passion orprejudice.” (Id. At 615.) Plaintiff’s counsel’s comment on noneconomic damages is not evidence, is not a limit that the Court is bound by, and is merely a suggestion of damages to be awarded. Often Plaintiffs’ attorneys under-request to avoid the potential appearance of greed or overreaching. Just as Plaintiff suggested an amount of noneconomic damages, an amount of punitive damages and economic damages that were not awarded as suggested. The Court is tasked with hearing all of the evidence and awarding an amount of damages thatit seesfit. Defendants cite to the Bender case when arguing that the award of $275,000.00 shocks the conscience and appears based on passion and prejudice. (Bender v. County of Los Angeles, (2013) 217 Cal.App.4™ 968, 986.) The Court in Bender found that noneconomic damagesin the -5- PLAINTIFF EVAN PYLE’S RESPONSE, PROPOSALS, AND OBJECTIONS TO DEFENDANTS’ PROPOSALS AND OBJECTIONS TO THE TENTATIVE STATEMENT OF DECISION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 amount of $495,000.00 was not excessive. Even though the damages were high, the Bender Court found it did not shock the conscience. The Bender Court looked to the facts of the plaintiff being arrested without probable cause, being beaten, and the deputy’s comments before and after the arrest indicating animus, when it held that the jury’s determination was supported by substantial evidence. Similar to Bender, Plaintiff Pyle was assaulted and beaten without justification and suffered permanentinjuries that severely affected multiple aspects ofhislife. As such, substantial evidence was offered to support a finding of $275,000.00 in noneconomic damages thatis proportionate to the harm Plaintiff has suffered, and will continue to suffer, that negates the argumentthat it shocks the conscience and would compel the conclusion that the Court awarded the amount because of passion or prejudice. There is no evidence to suggest the Court was someone motivated by passion or prejudice during trial or that is reflected in the Tentative Statement of Decision. In fact, the Plaintiff's request for punitive damages and lost earnings were denied by the Court, which one would imagine would have been granted if the Court was somehow motivated by passion and prejudice against the Defendants. Lastly, there is no evidence that there was inflammatory evidence or improper arguments by Plaintiff's counsel that suggests the Court relied on improper considerations. Defendants’ argument to Gerard and punitive damages is misplaced since punitive damages were not awarded. (Gerard v. Ross, (1988) 204 Cal.App.3d 968.) Moreover, Defendants’ argumentthat like punitive damages, noneconomic damages should bear some relation to economic damages is not supported by any legal authority. Appellate courts have continually held that there is no fixed standard or calculation by which an appellate court can measure in monetary terms the extent of damages suffered by plaintiff as a result of defendant’s wrongful act, which is why it defers to the trial court whenever possible who is in the best position to hear the witnesses and evaluate the evidence. If two people are hospitalized with the same injury, and one has DHCS Medi-Cal and the other no medical insurance, does the fact that one person’s bill is $1,500 and the other person’s bill is $25,000, have any effect on whatis a reasonable calculation oftheir general damages? -6- PLAINTIFF EVAN PYLE’S RESPONSE, PROPOSALS, AND OBJECTIONS TO DEFENDANTS’ PROPOSALS AND OBJECTIONS TO THE TENTATIVE STATEMENT OF DECISION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Should an award of “X” general damages for the first person found to be unconscionable, while the same general damages for the second person’s be deemed fair? Of course not. As such, Defendants’ argument of the mathematical ratio between economic damages and noneconomic damages is misguided and is not supported by caselaw or common sense. Plaintiff will not rehash here all the numerous evidence supporting the past noneconomic damages finding. However, Plaintiff will point out that Defendant Carvajal noted on the stand that a knee fracture was a very serious injury. More crucially, the pain aside, the emotional distress the Plaintiff went through with the real possibility that he would lose his business he had worked so hard to build, is worth the damages the Court found. Plaintiff testified he has only a high school education. His options with a damaged knee if he lost his business, must have been terrifying. Plaintiff’s objects to Defendant’s argument that the award of $50,000.00 for future noneconomic damages lacks evidentiary support. As mentioned previously, Dr. Haras and Dr. Shin testified to Plaintiff essentially having a permanent injury, with pain that will likely not go away without intervention, and even with intervention, relief is uncertain. Considering Plaintiffs testimony that his livelihood requires him to kneel and place weight on his knee in a bending position, and Plaintiff’s young age, the calculation is very reasonable. TagDated: LAW OFFICE OF NIKOLAUS W. REED \ \ we IFy: Nikolaus W. Reed Attorney for Plaintiff -7- PLAINTIFF EVAN PYLE’S RESPONSE, PROPOSALS, AND OBJECTIONS TO DEFENDANTS’ PROPOSALS AND OBJECTIONS TO THE TENTATIVE STATEMENT OF DECISION SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION EVAN PYLE, Plaintiff, vs. No. CGC-16-555000 JONES METROPOLITAN ENTERTAINMENT CORP.; 620 JONES STREET; GAYLORD ASSOCIATES, LP; RUSSELL B. FLYNN INVESTMENTS CO.; 620 JONES STREET LIMITED PARTNERSHIP; ALVARO CARVAJAL; and DOES 1 50, Defendants. r r e r r f r r e r a r r e r e r e r w a t n r a e a r e r DEPOSITION OF EDWARD C. SHIN, M.D. December 12, 2017 5:25 p.m. 450 Sutter Street, Suite 400 San Francisco, California REPORTED BY: LANA 1. LOPER, RMR, CRR, CCP, CME, CLR, CSR No. 9667 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 probability, that this fracture was sustained in the altercation that he was in on January 15, 2016? A Yes. Excuse me, yes. Yeah. Q Did you consider if it was degenerative in nature? A No, this is not an injurythat's a result of a degenerative process. Q It's an acute injury? A This is an acute injury. Q And the x-rays that you reviewed and your examination findings, they aligned with the time frame provided by Mr. Pyle as to when the incident occurred? A Yes. 0 If Mr. Pyle says today that he's still ——— presently in pain when he kneels on his knee -- ————— A Yes. TQ -- would you be surprised by that, or would you find that to be a common residual injury -- of this type of injury? A You know, it is a common result of the injury. You can develop a little bit of inflammation in the —— front of your knee from scar tissue. And so I wouldn't say, I would be surprised, but it is common, yeah. Q So if Mr. Pyle expresses such a complaint about ——— having residual pain when he kneels on his knee at this 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 time, would you agree with reasonable medical ——— probability that that complaint is related to this injury he sustained on January 15, 20167? A Yes. mmm Q Similar questions as to current complaints of — aching when it's cold out. Would you be surprised if he said that he complains of aching in his knee when it's cold out, -_— currently? A I mean, I'm not surprised by that. Q That's also a relatively common complaint after sustaining a fracture of the patella? A And healing, yeah. Q Given that, assuming Mr. Pyle still has the complaints of pain in his knee upon kneeling and pain when it's cold out, at this time would you agree that it's reasonable, with reasonable medical probability, that he will continue to have such pain into the foreseeable future? A I think that those are things that are modifiable and that he can -- can improve over time. Q Do you have an estimate about the percentage of people who, if two years after an incident, with a patella fracture, still having pain when they kneel upon their knee, percentage of people who have that complaint 7h 10° 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 indefinitely? A No. MR. McGUIRK: I'm going to object real quick. We're getting into some highly speculative territory here. Objection on the grounds that it's speculative, calls for speculation. BY MR. REED: Q You can answer. A It's hard for me to answer that, quite honest. Two years -- I think those issues can be modified, even after two years. I don't have a percentage, yeah. Q When you say, "can be modified," you are referring to medical procedures that can be done or activity modifications? A Both. I think you can -- a combination of either therapy or utilizing either medications versus injections might be able to modify his symptoms. Q Assuming Mr. Pyle did not have any future apr — physical therapy or injections, do you believe he would —— probably continue to have the same complaints that he's mim reporting currently, assuming he is? ——— A If he doesn't receive any treatment? —— Q Correct. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yeah, I think he will probably struggle with... Q = Would you recommend any future treatment for Mr. Pyle today, if he reported currently having such complaints? A Yeah, I —- MR. McGUIRK: Again, just an objection that this calls for speculation. THE WITNESS: I would recommend -- if it was bothering him still, I would recommend treatment, whether it's physical therapy, further physical therapy through, maybe, scar massage. I would also recommend activity modification, js m—— maybe not kneeling or using a pad to help while he's kneeling.m3 In more extreme circumstances, I might provide a cortisone injection into the soft tissue in front of his knee, if he was having a lot of irritation there with the kneeling. BY MR. REED: Q The cortisone injection, how often do you recommend doing that per year? A We recommend doing it as the symptoms come, but likely would not do that more than twice per year. Q And that injection, is that a temporary fix, or is that a permanent solution to the issues? 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Sometimes it can be a permanent solution. It can help change the tissue in that area, where it's not creating as much problems with kneeling. Q But other times, it can be a temporary fix to the problem? \ Yeah. Other times it can be just a temporary fix, yeah. err, Q Do you have an estimate for what the cost of such an injection would be? A Anywhere between 100 to 250 for the cost of that. That's including for the materials as well as the actual injection procedure itself. Q Does having the cortisone injection contribute to degeneration of the knee in any way? A In that particular area, I mean, there's some evidence to show that it can degenerate tissue. But in that particular area, there's no cartilage that can be affected. Just to be clear, that it's the pre-patellar region where I would provide that injection. That's in front of the kneecap. If you did an injection into the knee, that would be a little bit different scenario. But for the pain that he's having with the kneeling, I would give the injection in front of the knee, in the pre-patellar